Foreseeability of Co‑Conspirator Death Threats and Broad Electronic‑Device Search Conditions: The Second Circuit’s Summary Affirmance in United States v. Deloatch

Note: This decision is a Second Circuit Summary Order and, under FRAP 32.1 and Local Rule 32.1.1, does not have precedential effect. It is nonetheless instructive for practitioners.

Introduction

In United States v. Deloatch, No. 24-2399-cr (2d Cir. Sept. 19, 2025), a panel of the Second Circuit (Judges Chin, Nardini, and Kahn) affirmed a 41‑month sentence imposed following a guilty plea to Hobbs Act robbery and conspiracy to commit Hobbs Act robbery, 18 U.S.C. § 1951(a). The appeal presented two discrete sentencing issues:

Whether the district court clearly erred in applying the Sentencing Guidelines’ two-level “threat‑of‑death” enhancement, U.S.S.G. § 2B3.1(b)(2)(F), based on a co‑conspirator’s threat to shoot a store employee during the robbery; and
Whether the district court failed to make sufficiently individualized findings to support a supervised-release search condition encompassing electronic devices.

The panel affirmed on both points, holding that (1) death threats by a co‑conspirator were reasonably foreseeable given the violent nature and execution of the planned robbery, and (2) the district court’s on‑the‑record explanation—together with the record’s “self‑evident” support—satisfied the individualized assessment requirement for imposing a search condition that included electronic devices and required only reasonable suspicion.

Summary of the Opinion

The court reviewed the threat‑of‑death enhancement for clear error and found none. The record reflected a planned, violent entry by multiple conspirators into a retail store at night, the use of disguises and traffic cones to manage bystanders, and an actual death threat by a co‑conspirator against an employee encountered onsite. Against that backdrop, the district court permissibly found it reasonably foreseeable that the robbery could involve threats of death.

On the supervised‑release condition, because the defendant did not object below, the panel reviewed for plain error and found no error at all. Relying on recent Second Circuit authority, the court held that a district court need not articulate separate reasons for each special condition when it has already explained the overall reasons for the sentence and the record makes the basis for the condition self‑evident. The inclusion of electronic devices was justified by the reasonable‑suspicion safeguard and by the defendant’s nearly dozen pretrial violations, including absconding—facts that undermined his credibility on supervision and made the condition necessary to ensure effective monitoring.

Disposition: Judgment affirmed.

Factual and Procedural Background

On September 24, 2019, Marcus “Biggs” Deloatch and at least three co‑conspirators executed a late‑night burglary/robbery of a Brooklyn retail store. They shattered the glass front door with bolt cutters. An employee, awakened from sleep, came to the front. A co‑conspirator forced him to the back, ordered him to lie face‑down, and threatened to shoot him in the head if he did not cooperate. The conspirators had donned construction outfits and set up traffic cones—apparently to deter or manage bystander attention—and there was evidence of Deloatch’s association with a violent gang. Deloatch pleaded guilty to Hobbs Act robbery and Hobbs Act robbery conspiracy. The district court (Vitaliano, J.) imposed two concurrent 41‑month terms of imprisonment and two years of supervised release with special conditions, including a search condition covering electronic devices on reasonable suspicion.

On appeal, Deloatch challenged: (1) the application of the § 2B3.1(b)(2)(F) threat‑of‑death enhancement as not reasonably foreseeable to him; and (2) the sufficiency of the district court’s individualized findings supporting the supervised‑release search condition, particularly its reach to electronic devices.

Analysis

Precedents and Authorities Cited

U.S.S.G. § 2B3.1(b)(2)(F): Adds two levels if a “threat of death” was made during a robbery. The concept focuses on the victim’s perception of a threat that a reasonable person would fear could be carried out; an actual weapon or physical capability is not required.
U.S.S.G. § 1B1.3(a)(1)(B) (Relevant Conduct—Jointly Undertaken Criminal Activity): A defendant is accountable for reasonably foreseeable acts of co‑conspirators done within the scope of, and in furtherance of, the jointly undertaken criminal activity.
United States v. Molina, 106 F.3d 1118, 1121 (2d Cir. 1997): Findings on reasonable foreseeability at sentencing are reviewed for clear error.
United States v. Mi Sun Cho, 713 F.3d 716, 722 (2d Cir. 2013): Appellate deference to district court factfinding—no reversal where the account is plausible in light of the entire record.
United States v. Gahagen, 44 F.4th 99, 110 (2d Cir. 2022): Clear error requires a “definite and firm conviction that a mistake has been committed.”
United States v. Thompson, 143 F.4th 169, 176–81 (2d Cir. 2025): Unpreserved objections to supervised‑release conditions are reviewed for plain error; a court need not give separate reasons for each condition if it explained the overall sentencing rationale; conditions may be upheld if their basis is self‑evident; reasonable‑suspicion search conditions do not implicate a fundamental liberty interest requiring narrow tailoring; and courts need not limit search modalities (home vs. phone vs. car) to mirror prior misconduct when reasonable suspicion is required.
United States v. Sims, 92 F.4th 115, 126 (2d Cir. 2024): The sentencing court must conduct an individualized assessment for special conditions and state on the record the reasons for imposing them. A contextual, holistic explanation can suffice.
United States v. Robinson, 134 F.4th 104, 112 (2d Cir. 2025): Repeated supervision violations can justify broader search conditions (including electronic devices) as necessary to ensure effective supervision.

Legal Reasoning

I. Threat‑of‑Death Enhancement (U.S.S.G. § 2B3.1(b)(2)(F))

Issue: Whether the district court clearly erred in attributing a co‑conspirator’s death threat to Deloatch under § 1B1.3(a)(1)(B) on the ground that such a threat was reasonably foreseeable in the robbery they planned and executed.

Standard of Review: Clear error. The panel reiterated strong deference to the district court’s plausible view of the record (Molina; Mi Sun Cho; Gahagen).

Governing Rule: A co‑conspirator’s death threat can be attributed to the defendant if it was within the scope of, in furtherance of, and reasonably foreseeable in connection with the jointly undertaken criminal activity. The enhancement applies if a death threat is made, regardless of whether a weapon is present or displayed; the focus is on the nature of the threat during a robbery and its foreseeability to co‑participants.

Application: The panel emphasized several facts supporting foreseeability:

Multiple conspirators (at least four) undertaking a violent late‑night break‑in of a retail store;
Use of bolt cutters to smash the glass door, signifying an overtly forceful entry on a Brooklyn street with late pedestrian traffic;
Use of construction attire and cones, evidencing anticipatory planning around the presence of people and bystanders;
Evidence of Deloatch’s association with members of a violent gang; and
Actual encounter with a store employee during the robbery, who was threatened with being shot in the head unless he complied.

The defense argued that the late hour, the absence of weapons, and the lack of evidence of pre‑planning specific threats made death threats unforeseeable. The court rejected this framing. The question is not whether conspirators specifically planned a death threat or possessed a firearm; it is whether, given the overall plan and circumstances, the use of a death threat to overcome resistance during a violent, coordinated robbery was reasonably foreseeable. On this record, the district court’s determination was at least plausible. Accordingly, there was no clear error.

Bottom line: The foreseeability threshold was satisfied by the nature of the planned robbery and the conspirators’ anticipatory steps indicating the likelihood of encountering people, even at night. Specific proof of a gun or a pre‑agreed plan to utter death threats was not required.

II. Supervised‑Release Search Condition Including Electronic Devices

Issue: Whether the district court failed to make individualized findings sufficient to support a search condition that includes electronic devices.

Standard of Review: Plain error (unpreserved objection) (Thompson).

Governing Rules:

Courts need not articulate “separate reasons for imposing every single special condition” if they have explained the overall sentencing rationale, including the nature of the offense and the defendant’s history and characteristics (Thompson).
Even when the explanation is spare, a condition can be affirmed if its basis is self‑evident from the record (Thompson).
Courts are not required to tailor search modalities to mimic the defendant’s prior misconduct when the condition itself requires reasonable suspicion that evidence of a current violation will be found (Thompson).
Conditions requiring reasonable suspicion do not implicate a fundamental liberty interest that demands narrow tailoring (Thompson); repeated violations can justify robust conditions to ensure effective supervision (Robinson).

Application: The district court stated that:

Deloatch’s offense was a “violent [and] serious crime” warranting punishment;
His history reflected “criminal justice issues” that had to be factored in; and
He needed rehabilitative services, including mental health and substance‑abuse support.

The panel held that this explanation, in context, satisfied the individualized‑assessment requirement (Sims) and that the electronic‑devices component was justified by a self‑evident record basis: nearly a dozen pretrial violations, including absconding, which undermined confidence in Deloatch’s ability to deal in good faith with supervision. Because the search condition required reasonable suspicion, it was appropriately bounded and did not require tailoring to specific past modalities (home vs. phone vs. car). The panel also rejected the argument that the district court failed to consider liberty interests, noting the reasonable‑suspicion safeguard and Second Circuit law that such conditions do not implicate a fundamental liberty interest warranting narrow tailoring.

Bottom line: Under Thompson and Sims, a holistic sentencing explanation plus a record showing repeated non‑compliance and absconding is enough to support a reasonable‑suspicion search condition that includes electronic devices.

Impact and Practitioner Takeaways

Although non‑precedential, Deloatch reinforces two practical points likely to recur:

Foreseeability of death threats in planned, forceful robberies is a low bar under deferential review. When multiple conspirators plan a violent entry into commercial premises, especially where anticipatory steps show awareness of potential witnesses or employees, courts are likely to deem death threats by a co‑conspirator reasonably foreseeable. Defense counsel seeking to avoid § 2B3.1(b)(2)(F) should build a record distinguishing the plan from violent or confrontational robberies (e.g., emphasizing planning aimed at avoiding any human encounter, non‑forceful entry, or robust evidence of an agreed non‑violence protocol), and should preserve objections to enable more searching appellate review.
Electronic‑device search conditions will be sustained where reasonable suspicion is required and the record shows non‑compliance risk. Thompson and Robinson give district courts substantial latitude to impose broad search conditions, including phones and other devices, provided there is a reasonable‑suspicion requirement and the record reflects supervision risks (like repeated violations or absconding). A district court need not trace each modality to past misconduct so long as the sentencing explanation and the record together show why supervision needs such tools.

For prosecutors, Deloatch underscores the value of documenting:

Objective indicators of anticipated human encounters (disguises, cones, operational planning) and violent methods (forced entry) to support foreseeability findings; and
Compliance history (missed appearances, absconding, violations) to justify electronic‑device search conditions.

For defense counsel:

Preserve objections to special conditions and request tailored alternatives (e.g., limiting device searches to specified categories of suspected violations, temporal limits, or requiring probation‑officer approval) and a fuller on‑the‑record explanation.
Where the enhancement is at issue, develop evidence about the plan’s non‑confrontational aims, absence of tools associated with threats, and any express non‑violence instructions, and distinguish the robbery’s nature from scenarios likely to entail coercive threats.

Complex Concepts Simplified

Clear error (sentencing factfinding): The appellate court will uphold a district court’s finding if it is plausible in light of the entire record. Reversal requires a “definite and firm conviction” of mistake.
Plain error (unpreserved objection): The appellant must show an error that is clear or obvious, affected substantial rights, and seriously affects the fairness, integrity, or public reputation of judicial proceedings. In Deloatch, the court found no error at all.
Reasonably foreseeable co‑conspirator conduct (U.S.S.G. § 1B1.3): A defendant in a jointly undertaken criminal activity is accountable for acts of others that were within the plan’s scope, in furtherance of it, and reasonably foreseeable—without needing proof of specific advance discussion.
Threat‑of‑death enhancement (U.S.S.G. § 2B3.1(b)(2)(F)): Adds two offense levels if, during a robbery, a perpetrator communicates a threat that would instill a fear of death in a reasonable person (e.g., “I’ll shoot you”). A weapon is not necessary.
Individualized assessment of supervised‑release conditions: The court must explain why special conditions are appropriate for the particular defendant and offense. A general but contextual explanation, combined with a record that makes the reasons self‑evident, suffices.
Reasonable‑suspicion search condition: Authorizes searches of the person, residence, or property (including electronic devices) when there is specific, articulable reason to believe the search will find evidence of a supervision violation. Because it is suspicion‑based, it carries less intrusive implications for liberty interests than suspicionless searches.

Conclusion

The Second Circuit’s summary affirmance in United States v. Deloatch consolidates two themes prominent in recent circuit law. First, under deferential review, the death‑threat enhancement will often be sustained in multi‑person, forceful robberies where the plan reasonably contemplated human confrontations and coercion, even absent weapons or proof of explicit pre‑planning of threats. Second, following Thompson and Sims, district courts can uphold reasonably broad supervised‑release search conditions—including electronic devices—where the court has articulated an overall rationale keyed to the nature of the crime and the defendant’s history, the condition requires reasonable suspicion, and the record (such as repeated pretrial violations and absconding) makes the need for effective supervision self‑evident.

While non‑precedential, Deloatch offers a clear roadmap for how the Second Circuit evaluates foreseeability under § 1B1.3 and the sufficiency of sentencing explanations for supervised‑release conditions, and it highlights the strategic importance of building and preserving an adequate record at sentencing.

Case Metadata

Court: United States Court of Appeals for the Second Circuit
Panel: Judges Chin, Nardini, and Kahn
Date: September 19, 2025
Lower Court: E.D.N.Y. (Vitaliano, J.)
Parties: United States (Appellee) v. Marcus “Biggs” Deloatch (Defendant‑Appellant)
Disposition: Affirmed (summary order)
Counsel: AUSAs Benjamin Weintraub (with Nicholas J. Moscow and Anna Karamigios) for the United States; Edward S. Zas for Deloatch