UNITED STATES OF AMERICA, Appellee, v. THOMAS TRAFICANTE, Defendant-Appellant.
No. 18-1962-cr
United States Court of Appeals For the Second Circuit
July 17, 2020
August Term 2019
Argued: October 25, 2019
Before: PARKER, SULLIVAN, Circuit Judges, AND FAILLA, District Judge.*
Defendant-Appellant Thomas Traficante pleaded guilty to cyberstalking and distribution of a controlled substance. He now challenges the imposition of an above-Guidelines term of imprisonment and of a once-standard condition of supervised release that the Second Circuit subsequently held was impermissible. We conclude that the district court did not err in imposing a 48-month term of imprisonment, which was justified as a variance. We further conclude that Traficante‘s challenge to the supervised release condition is moot because the Western District of New York‘s standing order permissibly modifies the applicable condition. Accordingly, we AFFIRM the sentence and judgment as modified by the Western District of New York‘s standing order.
AFFIRMED.
MICHELLE ANDERSON BARTH, Law Office of Michelle Anderson Barth, Burlington, Vermont, for Defendant-Appellant Thomas Traficante.
KATHERINE A. GREGORY, Assistant United States Attorney (Monica J. Richards, Assistant United States Attorney, on the brief), for James P. Kennedy, Jr., United
RICHARD J. SULLIVAN, Circuit Judge:
Defendant-Appellant Thomas Traficante appeals from a judgment of conviction entered on June 28, 2018 in the United States District Court for the Western District of New York (Larimer, J.) following his guilty plea to one count of cyberstalking in violation of
On appeal, Traficante challenges, among other things, the district court‘s imposition of an above-Guidelines term of incarceration and of a once-standard “notification of risk” condition of supervised release, which the Western District of New York has since modified by standing order. We affirm the district court‘s imposition of the above-Guidelines sentence as a permissible variance that was both procedurally and substantively reasonable. And while we agree with Traficante that the previous risk condition can no longer be imposed on him following our decision in United States v. Boles, 914 F.3d 95, 111–12 (2d Cir. 2019), his challenge to that condition is moot in light of the standing order. We also find that remand for resentencing is unnecessary because the Western District of New York‘s standing order permissibly clarifies the risk condition applicable to his supervised release without imposing any additional burden on Traficante. Further, any vagueness challenge or challenge to the contemplated delegation of authority to the probation officer in the clarified condition is not ripe. We therefore affirm the district court‘s judgment, as modified by the standing order.
I. BACKGROUND
In the fall of 2017, Traficante repeatedly stalked and threatened his ex-girlfriend, a student at SUNY Geneseo. In addition to digitally surveilling her from his home, Traficante sent numerous threatening, anonymous text messages and made repeated anonymous calls to the victim and her sorority housemates. He also falsely advertised on the Internet that the victim was a prostitute by posing as her and providing her contact information, hacked several of the victim‘s online accounts and used that access to further harass her, and shot out the windows of her parents’ car and home with a BB gun. Traficante also mailed controlled substances, including cocaine and MDMA, to the victim without her knowledge, after which he anonymously contacted university police to inform them of her possession of illegal narcotics.
On December 20, 2017, Traficante was arrested at his home, where law enforcement found a loaded AR-15 firearm, two airsoft rifles, ammunition, and shooting targets. In the course of the investigation, as detailed in the U.S. Probation Office‘s Presentence Investigation Report (“PSR“), law enforcement also learned that Traficante had engaged in similar threatening conduct toward another ex-girlfriend after their relationship ended.
In March 2018, Traficante waived indictment and pleaded guilty to a two-count Information charging him with cyberstalking in violation of
In addition, the district court placed a number of conditions on Traficante‘s supervised release, including the once-standard risk condition that gave Traficante‘s probation officer discretion both to determine whether Traficante posed a risk to others and, if so, to require him to notify such persons about that risk. Id. at 76 (“If the probation officer determines that you pose a risk to another person . . . the probation officer may require you to notify the person about the risk . . . .“).
On appeal, Traficante primarily argues that the district court erred when it increased his criminal history category from I to III based on related conduct and without adequate explanation. He also cites our decision in Boles, 914 F.3d at 111–12, to challenge the standard risk condition of his supervised release.
II. DISCUSSION
A. The District Court Acted Reasonably When It Imposed An Above-Guidelines Sentence
“We review a sentence for procedural and substantive reasonableness under a ‘deferential abuse-of-discretion standard.‘” United States v. Thavaraja, 740 F.3d 253, 258 (2d Cir. 2014) (quoting Gall v. United States, 552 U.S. 38, 41 (2007)). “A district court commits procedural error when it fails to calculate (or improperly calculates) the Sentencing Guidelines range, treats the Sentencing Guidelines as mandatory, fails to consider the [
Both during the sentencing and in the written statement of reasons that followed, the district court characterized the sentence it imposed as both a variance and a departure under the Guidelines. The district court first set forth the justification for a variance, explaining the factors to be considered under
On the record before us, we find no procedural error with respect to the variance. The district court adequately explained the reasons for that variance pursuant to the factors outlined in
Having determined that the sentence was procedurally reasonable, we likewise reject Traficante‘s conclusory and tepid assertion that his 48-month sentence was “likely . . . substantively unreasonable.” Traficante‘s Br. at 36–37. Taking “into account the totality of circumstances” evidenced by the record, including Traficante‘s conduct, prior history, and the aggravating factors noted in the PSR, it can hardly be argued that a sentence of 48 months was outside the range of permissible decisions available to the district court. Cavera, 550 F.3d at 190. We note that courts have imposed and upheld comparable above-Guidelines sentences in cases involving similar conduct. See, e.g., United States v. Waldman, 807 F. App‘x 77, 78–80 (2d Cir. 2020) (affirming above-Guidelines sentence of fifty months for cyberstalking as procedurally reasonable); United States v. Sayer, 748 F.3d 425, 436–37 (1st Cir. 2014) (affirming sixty-month sentence, which was fourteen months above Guidelines range, for cyberstalking and identity theft). In light of such cases, and given the seriousness of Traficante‘s conduct, including the fact that he previously engaged in similar stalking and threatening behavior, we cannot say that Traficante‘s sentence is “shockingly high . . . or otherwise unsupportable as a matter of law.” United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009).
B. Traficante‘s Challenge To The “Notification of Risk” Condition Is Moot In Light Of The Western District‘s Standing Order
Traficante challenges the district court‘s imposition of the then-standard condition of supervised release, which authorized the
Responding to Traficante‘s challenge to the risk condition, the government initially conceded that a limited remand was necessary to address the concerns raised in Boles. However, since we announced our decision in Boles and the parties submitted their briefs on appeal, the Western District of New York issued a standing order that amends the risk condition in light of that decision. See In re: United States v. Boles (W.D.N.Y. Mar. 22, 2019), https://www.nywd.uscourts.gov/sites/nywd/files/PTPR-2019-AmendedBolesStandOrd.pdf (“March 2019 Standing Order“). Specifically, the standing order amends all judgments in the district to replace the prior standard risk condition with the following new condition:
If the court determines in consultation with your probation officer that, based on your criminal record, personal history and characteristics, and the nature and circumstances of your offense, you pose a risk of committing further crimes against another person (including an organization), the probation officer may require you to notify the person about the risk and you must comply with that instruction. The probation officer may contact the person and confirm that you have notified the person about the risk.
Id.
Though the parties agree that the revision renders Traficante‘s challenge to the previous condition moot, they nevertheless dispute whether the standing order itself passes muster under Boles. As noted in a letter filed under
1. Resentencing Is Not Required Since The Standing Order Imposes No Obligations On Traficante
With respect to Traficante‘s first argument, we hold that vacatur and remand for resentencing is unnecessary. While the standing order removes and modifies the previously existing standard risk condition, it does not alter Traficante‘s sentence by imposing new burdens upon him. The order instead clarifies that any obligation to notify at-risk individuals is wholly contingent on a subsequent determination by the district court that the supervisee poses a specific risk to such persons. Given the conditional nature of the revised condition, the standing order can have no impact on Traficante unless and until the district court makes such a finding. In this regard, the order merely reiterates the existing procedures for adding conditions if and when they become necessary during terms of supervised release and therefore comports with Boles‘s directive that courts “clarify the scope of the ‘risk’ condition.” 914 F.3d at 112.
Our precedents do not require resentencing under such circumstances.
But unlike the situation in Thomas, the standing order here does not impose additional burdens or restrictions on Traficante. It simply announces what is already true under the law – namely, that the district court can, in the future, determine that the supervisee poses a risk to the safety of other persons and require him to notify such persons. As a general matter, a court‘s ability to add conditions of supervised release is well-settled. See
Because the standing order “amounts to a clarification” acknowledging the possibility of future conditions that might be added “regardless of [the] present sentence,” it “does not impose . . . any new obligations” beyond what the law already allows. United States v. Jacques, 321 F.3d 255, 265–66 (2d Cir. 2003). As a result, remand for resentencing under Rule 43 is unwarranted.
2. Traficante‘s Vagueness Challenge To The Revised Risk Condition, As Well As Any Potential Delegation Challenge, Is Not Ripe.
Having failed in his request for a resentencing under Rule 43, Traficante next argues that the WDNY‘s standing order is impermissibly vague. Specifically, Traficante contends that the condition “contains terms virtually identical to those rejected
“Ripeness is a constitutional prerequisite to [the] exercise of jurisdiction by federal courts.” United States v. Fell, 360 F.3d 135, 139 (2d Cir. 2004) (internal quotation marks omitted). And “[b]ecause the ripeness doctrine is drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction, the court can raise it sua sponte, and, indeed, can do so for the first time on appeal.” Thomas v. City of New York, 143 F.3d 31, 34 (2d Cir. 1998) (internal quotation marks omitted). The doctrine “prevents a federal court from entangling itself in abstract disagreements over matters that are premature for review because the injury is merely speculative and may never occur.” United States v. Balon, 384 F.3d 38, 46 (2d Cir. 2004) (internal quotation marks and brackets omitted). “In addressing any and all ripeness challenges,” we must determine “whether (1) the issues are fit for judicial consideration, and (2) withholding of consideration will cause substantial hardship to the parties.” Id. (internal quotation marks and brackets omitted). “[U]nlike a purely legal question that is eminently fit for judicial review,” factual disputes “beyond the prescience of [the] court” are “subject to abstract disagreements over matters that are premature for review.” Id. (internal quotation marks omitted). Thus, we have long recognized that “[a] claim is not ripe if it depends upon ‘contingent future events that may not occur as anticipated, or indeed may not occur at all.‘” Nat‘l Org. for Marriage, Inc. v. Walsh, 714 F.3d 682, 687 (2d Cir. 2013) (quoting Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580–81 (1985)).
Although Traficante‘s vagueness challenge clearly raises a question of law, the inquiry, at this point, is surely just an abstraction. Because the standing order merely restates what courts are already authorized to do, Traficante‘s behavior is no more constrained by the wording of the order than it is by the ever-present possibility that the district court could modify the terms of his release as necessary. If the court determines that Traficante poses a specific risk and enlarges the condition by requiring him to notify a third party, he can raise any vagueness challenge at the Rule 32.1 hearing accompanying the modification. But chances are that, by the time the court makes a finding that Traficante “pose[s] a risk of committing further crimes against another person [or] organization,” March 2019 Standing Order, and directs him to provide notice specifically to the at-risk person or entity – thereby imposing an enlarged condition – the condition will no longer be vague at all.
And while it could be argued that the standing order contemplates vesting the probation officer with a degree of discretion that is inconsistent with our holding in Boles, such a challenge would likewise be unripe, since the ostensibly improper delegation may never actually occur.1 First, the supposed delegation is conditioned on
Whether couched as a vagueness challenge or a delegation challenge, Traficante‘s argument clearly “depends upon ‘contingent future events that may not occur as anticipated, or indeed may not occur at all.‘” Nat‘l Org. for Marriage, 714 F.3d at 687 (quoting Thomas, 473 U.S. at 580–81). As a result, Traficante will not endure any hardship, much less a substantial one, by the Court‘s refusal to parse the language of a standing order that merely reserves to the district court the power to modify supervised release conditions in the future – powers that it already has under the law. See
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court, as modified to the extent discussed herein by the Western District‘s standing order.
RICHARD J. SULLIVAN
UNITED STATES CIRCUIT JUDGE