Case Information
‐ ‐ cr In the
United States Court of Appeals
for the Second Circuit A UGUST T ERM No. ‐ cr
U NITED S TATES OF A MERICA ,
Appellee B RIAN S. B ROWDER Defendant Appellant .
On Appeal Western New York
A RGUED : A PRIL D ECIDED : A UGUST
Before: C ABRANES L OHIER Circuit Judges , and F ORREST , District Judge .
Defendant appellant Brian S. Browder—having been convicted possessing digital images and videos of child pornography, and having served incarcerary portion his sentence—appeals order finding him violation two release. District Court (Lawrence J. Vilardo, Judge ) found that violated two conditions, one requiring Browder’s computer(s) monitored Office, other requiring attend mental health treatment program for sex offenders. conclude Browder’s challenge violation unsuccessful, because condition, construed for purposes appeal under our deferential review, reasonable. But we conclude challenge treatment violation has merit. Specifically, reasonable object signing treatment conflicted with actual sentence, does appear, based record, otherwise acted unreasonably with respect participating such treatment. Accordingly, AFFIRM order part, respect violation condition; REVERSE order part, respect condition; REMAND Judge Katherine B. Forrest, Southern New York, sitting designation.
cause District Court for such further proceedings, consistent opinion, be appropriate.
R ANDALL D. U NGER Bayside, NY, for Defendant Appellant .
M ONICA J. R ICHARDS Assistant United States Attorney, for James P. Kennedy, Attorney for Western New York, Buffalo, NY, Appellee.
JOSÉ A. CABRANES, Circuit Judge :
Defendant appellant Brian S. Browder—having been convicted possessing digital images videos child pornography, having served incarcerary portion sentence—appeals order finding him two release. (Lawrence J. Vilardo, Judge ) found violated two conditions, one requiring computer(s) monitored Office, other requiring attend mental health program sex offenders. objected Office’s implementation both conditions. With respect violation, *4 Browder believed, and contends on appeal, the Office’s policy was overreaching. With respect to the treatment violation, Browder refused to sign the relevant treatment agreement because treatment agreement purported to bar contacting own children unless approved treatment providers—a requirement conflicted with an express ordered earlier Court. conclude Browder’s challenge to violation unsuccessful, because condition, as
construed for purposes this appeal under our deferential review, reasonable. But we conclude challenge to treatment violation has merit. Specifically, reasonable object to signing treatment conflicted with actual sentence, does appear, based record, otherwise acted unreasonably with respect participating such treatment. Accordingly, AFFIRM order part, with respect violation condition; REVERSE order part, respect violation condition; REMAND cause such further proceedings, consistent opinion, appropriate.
I. BACKGROUND
On October pleaded guilty, pursuant agreement, one count possessing child pornography 18 U.S.C. § 2252A(a)(5)(b). The factual basis plea provided follows:
On about October 14,[] 2009, Western New York, defendant possessed images child pornography Generic Computer black Antec tower. The defendant received traded these images child pornography over internet using file sharing programs eMule eDonkey2000.
Some child pornography possessed defendant depicted prepubescent children younger than years age.
The affidavit accompanying criminal complaint against attested to, among other things, following facts:
Forensic analysis discovered defendant file wiping software had used encrypting file system. Also, user account was password protected. password reminder account “unouwill” password “jerk4awhile,” recovered during forensic analysis.
*6 Judge Richard J. Arcara, whom the case originally assigned, sentenced Browder six ‐ ‐ ‐ half years’ imprisonment followed by ten years’ supervised release. The terms of supervised release included certain special conditions, three are relevant here. The first these required Browder participate in the Probation Office’s Computer/Internet Monitoring Program. The second relevant condition required participate in mental health program sexual offenders. And the third condition barred having *7 deliberate contact with minors—excluding his children—unless approved by Probation Office.
On December 2015, Browder finished his term imprisonment and his term supervised began. time leading up and shortly after his release, Browder met with his Officer (“USPO”), Ann Marie Bucholtz, review release. At second meeting, Browder indicated he wished use a computer, and USPO Bucholtz arranged him bring laptop her office so software could installed it.
On March appeared USPO Bucholtz’s office with laptop presented with “Computer Monitoring Program Participant Agreement.” That agreement’s first paragraph comply mandates treatment program is not leave such until discharge agreed U.S. treating agency. Id. provides relevant part: “The shall have
deliberate contact child under years age, excluding biological adopted children, unless approved officer.” Id. has two daughters. At revocation hearing, USPO Bucholtz testified she supervises all
sex offenders. Appendix (“A.”) 122–23. previously signed
agreement, but since did then computer, he USPO Bucholtz *8 provides relevant part that, “I understand that this agreement is, by reference, part order setting supervision and that failure comply its provisions instructions my officer will be considered violation my supervision may result adverse action.” Paragraph six that provides relevant part:
I agree allow U.S. Office install software/hardware designed monitor activities on any computer(s)/connected device(s) I own access to. I understand device record any all activity on my computer, including capture keystrokes, application information, internet use history, email correspondence, chat conversations. Evidently would performed third party private company, Remote.com.
circled only three paragraphs applied him at time—none objects here. A. ¶ 1. Id. ¶ 6. At hearing, USPO Bucholtz testified Remote.com staffed former law enforcement officials, they will alert only if those monitored are “looking any contraband.” Id. at It unclear what constraints, if all, are imposed Remote.com’s probationers.
Browder objected overbroad and overreaching, expressing concerns particular about files related pro se motion under 28 U.S.C. § which Browder was working at time. He also refused allow USPO Bucholtz keep laptop say what he would do with it. then conducted search home; no was found, but flash drives and SD (storage device) cards were. Browder refused disclose whereabouts laptop.
During same general time period, appeared at least two sexual offender treatment appointments at Mid Erie Counseling and Treatment Services. His treatment was terminated, however, because objected treatment agreement’s inclusion term conflicted with conditions. That term provided would “lead prosocial lifestyle refrain from all willful contact, visitation, letter writing telephone calls anyone under age years old”—without exception—”unless approved my parole officer team before I contact them.” letter dated March 2016—and delivered USPO Bucholtz *10 no later than March 23, 2016—Browder documented his objection, writing follows, part, to USPO Bucholtz:
As you are aware, I have objections to Mid Erie’s “treatment form” that compel me not to sign. I want be clear that I not refused counseling; they refused modify allow modification over ‐ reaching agreement, so I could not sign, so they refused me counseling. . . . [T]he Restriction grants you authority deny me contact my own children, even birthday card. The court did not convey that authority you . . . . I will not compelled grant that authority. That was largely why I could not sign . . . .
On March 25, 2016, filed a violation petition alleging violations sex offender conditions. By time, case been transferred from Judge Arcara Judge Vilardo. On March 29, 2016, Judge Vilardo granted Government’s motion detain Browder. On April a hearing was held, testimony USPO Bucholtz. At hearing’s conclusion, found two violations were proven preponderance *11 evidence. At sentencing, the Court imposed a sentence of “time served” reinstated the same terms (duration conditions) of supervised release were already effect.
This appeal followed.
II. DISCUSSION
Among Browder’s arguments on appeal, [16] the more substantial relate legal validity of two special conditions themselves— or, perhaps more precisely, validity of Office’s *12 implementation of those conditions. address arguments with respect each in turn.
A. Violation of the Computer Monitoring Condition To begin, note that, written, it clear what degree computer monitoring the Court imposed in condition. The condition, originally imposed by Judge Arcara in provides in relevant part:
The defendant shall participate Computer/Internet Monitoring Program administered by U.S. Probation Office. must provide U.S. advance notification computer(s), automated service(s), connected device(s) will use during term supervision. Such computer computers will subject monitoring U.S. Office, consistent policy then effect office. accordance Second Circuit’s decision, Lifshitz, (2d Cir. 2004), footnote light changing technology techniques, finds prudent delay determination specific terms policy until defendant’s supervised release commences .
Once began December however, there no “determination specific terms *13 condition.” (Earlier that month, the case had been transferred Judge Arcara Judge Vilardo.) Nevertheless, all the relevant parties in this case appear been operating on the understanding— reasonably, perhaps, given some of the language the special condition—that, upon release, subject whatever policy Probation Office Western District New York effect time. Indeed, appeal, seems be challenging policy Probation Office, sentence Court.
Browder’s principal contention appeal is, “[i]n short,” “the system sought implement involved ‘greater deprivation liberty than reasonably necessary purposes set forth section[s] 3553(a)(2)(b), (a)(2)(C), (a)(2)(D) [of Title 18 United States Code].’” [18] principal argument—which seeks apply requirements governing imposition sentence execution sentence Office—is thus fundamentally confused. “[T]he extensive ‘supervision mission’ federal officers includes ‘execut[ing] sentence,’ but imposing it.” And while Judge Vilardo originally imposed (unless until updated made more specific) subject challenge impermissible *14 delegation of judicial authority to Probation Office, [20] does bring such challenge here. Any delegation argument has therefore been waived appeal. light of foregoing, construe as himself does—that is, as having sentenced him
to whatever policy was used Western District’s Probation Office at release—and consider whether sentence, as effectuated policy, was unreasonable an “abuse of discretion.” [21] We conclude not. *15 Under 18 U.S.C. § 3583(d), the imposition certain conditions supervised release is mandatory, but “[d]istrict courts discretion impose other, non mandatory conditions supervised release,” [22] are commonly referred “special conditions.” Such discretion unbounded, however. [23] United States Sentencing Guidelines provide district court impose other conditions
extent such (1) are reasonably related (A) nature and circumstances offense and history characteristics defendant; (B) need sentence imposed afford adequate deterrence criminal conduct; (C) need protect public further crimes defendant; (D) need provide needed educational vocational training, medical care, other correctional most effective manner; (2) involve no greater deprivation liberty than reasonably necessary purposes set forth above are consistent pertinent policy statements issued Sentencing Commission. [24] defendant.” United States v. Reyes , 283 F.3d 456 (2d Cir. 2002) (emphasis original) (internal quotation marks omitted). Reeves F.3d (2d Cir. 2010). Id. U.S.S.G. § 5D1.3(b) (emphases added). Substantially same
requirements are set forth, means intricate cross referencing, U.S.C. § 3583(d). Malenya (D.C. Cir. 2013). *16 With respect first, “reasonably related” requirement, “a imposed if is reasonably related any one or more specified factors.” [25] The second, “reasonably necessary” requirement has a constitutional gloss computer context. [26]
In United States v. Lifshitz , [27] considered a probationer’s Fourth Amendment challenge a broadly worded computer condition. [28] We explained needs *17 supervision permit monitoring of a supervisee’s computer use, but a “monitoring condition must be narrowly tailored, not sweep so broadly as draw a wide swath extraneous material into its net.” [29] When irrelevant data “inadvertently gathered . . . , those compliance should remain conscientiously unaware data.” [30] In other words, while computer condition “must bear ‘a close substantial relation’ government’s interest pursuing search,” it need not employ “‘the least intrusive means.’” [31] We did not hold condition Lifshitz violated Fourth Amendment, but we said condition “may . . . be overbroad” remanded so district court could “evaluate privacy implications proposed computer techniques as well as their efficacy as compared with filtering.” [32] suggested where there *18 significant delay before the comes into effect— for example, the case of supervised release—“it might well be prudent for the district court to postpone the determination of the supervised release or probation conditions until appropriate later time, when the district court’s decision could be based then ‐ existing technological other considerations.” [33] controlled the defendant. The program(s) used will be designed identify, for the probation office, only the viewing, downloading, uploading, transmitting, or otherwise using any images or content of a sexual nature, defined as Suspect Computer Use. Suspect Computer Use shall be identified the installed program(s) and/or the probation officer through the screening of the defendant ʹ s usage certain key words, phrases images.
Judgment at Lifshitz , 1:03 cr ‐ ‐ LAP (S.D.N.Y. May 2011), ECF No. Lifshitz , F.3d at n.11. history of this case indicates our
well meaning suggestion may times fare better theory than fact. At minimum, rather than delaying imposition of sentence, it may be more practical district court impose full sentence (including, is, specific terms of any or filtering condition) first instance. If less invasive means of supervision arise, through technological or other innovation, or government free seek modification condition. U.S.C. § 3583(e)(2) (providing court “may modify, reduce, enlarge conditions supervised release, time prior expiration termination term release, pursuant provisions Federal Rules Criminal Procedure relating modification provisions applicable initial setting terms post ‐ supervision”); Fed. R. Crim. P. 32.1(c) (concerning modification); see also, e.g. Parisi (2d Cir. 2016) (applying U.S.C. § 3583(e)(2)). It may be initially imposed proves nothing but temporary placeholder—but, case illustrates, not.
Viewing monitoring Browder is subject in light foregoing standards, conclude it is reasonable. was convicted possessing over digital images child pornography received (and shared) internet exchanges, so monitoring is “reasonably related” nature and circumstances offense Browder’s history and characteristics. monitoring is “reasonably necessary” broad sentencing purposes indicated U.S.S.G. § 5D1.3(b) U.S.C. § 3553(a)(2), including specific deterrence, public protection, rehabilitation. Notably, there evidence employed software could conceal erase illicit images. And importantly, USPO Bucholtz testified—and found—that third ‐ party monitoring organization, Remote.com, notifies only if detects “contraband,” would not convey information related Browder’s § motion. So long principal concern is monitoring Office—which, fact, principal stated concern —this third party monitoring arrangement helps ensure remains, words Lifshitz “narrowly tailored.” Put differently, issue particular case an unreasonable excessive deprivation liberty.
*20 Accordingly, we conclude that subjecting Browder to the computer monitoring described above not an abuse of discretion. But to say sentence is within the range of reasonable sentences is not, of course, say it is the only reasonable sentence. As already explained, while Browder has waived any delegation challenge in appeal, it is not clear the District Court ever imposed on Browder the specific terms of monitoring reflected Office’s policy. Because we remand as ʹ s mental health treatment condition event, we direct District Court review condition of supervised re state terms Browder’s condition with greater specificity.
B. Violation Mental Health Treatment Condition Our analysis respect Court’s finding violated mental health condition is more straightforward. gravamen complaint is simply *21 that proposed treatment agreement conflicted with his actual sentence. In particular, original sentence included a specific condition prohibiting contact with minors, but categorically excluded Browder’s children that prohibition. By contrast, proposed treatment agreement’s provision regarding contact with minors did categorically exclude Browder’s children. agree with Browder that treatment agreement would have subjected him to a more punitive condition governing contact with minors than did to Browder was actually sentenced Court. Browder therefore well within his rights to object to term agreement. Nor do find Browder otherwise acted unreasonably respect to treatment condition. made what appears to be good faith effort to attend treatment, appearing at (at least) two sessions. addition, communicated objection to treatment *22 agreement written letter USPO Bucholtz, his objection was documented treatment facility’s records. Nevertheless, USPO Bucholtz was unable testify that she had read any those documents prior seeking this condition. Finally, delay receiving mental health treatment due his objection—unlike, arguably, risks posed by sex offender’s possession an unmonitored computer—did pose sort risk that might warrant arrest imprisonment.
Accordingly, conclude District Court’s finding violated his by objecting, reasonably, treatment agreement, on ground conflicted actual sentence, an “abuse discretion” — is, error. recognize, course, both no ‐ minors ‐ contact (imposed Court part its sentence) no minors ‐ contact term (included treatment Mid Erie, Probation Office’s chosen provider) allowed contacts minors if approved Office. appears placed significant weight USPO Bucholtz’s testimony that, if sought permission contact daughters, *23 would have approved it; indeed, the District Court noted that, given Browder’s sentence, the Office had no choice but to do so.
Even if that were the case, however, approvals the Probation Office are insufficient remedy the issue raised Browder. First, treatment actually required approval not only Probation Office, but “the treatment team” —something District Court did not address and over it had no direct oversight. Second, more fundamentally, District Court misapprehended relationship between a defendant’s sentence (by a judge) its execution (by a officer). key question not whether permission, if sought, would be granted; it whether Browder can be required, Office its designee, ask first place. Because such requirement as Browder’s children would contradict, rather than execute, sentence, was plainly without power impose it, as correctly argued.
III. CONCLUSION
To summarize, we hold as follows. (1) Browder’s challenge to part District Court’s order finding he had violated his condition is unsuccessful because condition, as construed for purposes this appeal under our deferential review, reasonable. Nevertheless, we direct District Court to review this condition to re state terms Browder’s with greater specificity. (2) challenge part District Court’s order finding he violated treatment successful, because reasonable object signing treatment conflicted with actual sentence, does appear otherwise acted unreasonably with respect participating such treatment.
For foregoing reasons, AFFIRM Court’s order part, with respect violation condition; REVERSE order part, respect condition; REMAND cause such further proceedings, consistent opinion, appropriate.
[1] Plea Agreement 4, 1:10 ‐ cr ‐ ‐ LJV (W.D.N.Y. Oct. 2010), ECF No. 14.
[2] Complaint 1:10 cr ‐ LJV (W.D.N.Y. Mar. 2010), ECF No.
[3] The condition provides in relevant part: The defendant shall participate in Computer/Internet Monitoring Program administered by U.S. Probation Office. The defendant must provide U.S. Probation advance notification computer(s), automated service(s), connected device(s) will use during term supervision. Such computer computers will subject monitoring by U.S. Office, consistent policy then effect office. accordance Second Circuit’s decision, Lifshitz, (2d Cir. 2004), footnote light changing technology techniques, finds prudent delay determination specific terms policy until defendant’s commences. Judgment 1:10 cr ‐ LJV (W.D.N.Y. May 2011), ECF No. (“2011 Judgment”).
[4] The provides relevant part: The defendant enroll, attend, participate mental health intervention specifically designed sexual offenders approved U.S. Office.
[11] id. 52–53, 126; see id. at (March letter USPO Bucholtz).
[12] Id. (emphasis added).
[13] We need consider alternative objections raised letter. simply note supervisee’s subjective belief his own innocence—despite having been convicted, upon guilty plea otherwise—is valid reason supervisee disregard mandatory, court ordered release.
[14] A. 124.
[15] case reassigned December
[16] To extent challenges sufficiency of evidence supporting violations, easily conclude such a challenge fails. “A district court’s finding a defendant has violated conditions of supervised release reviewed abuse discretion, its factual findings are reviewed clear error.” United States v. Glenn , F.3d (2d Cir. 2014) (citations omitted). A district court revoke a term supervised if “finds a preponderance evidence violated a release.” U.S.C. § 3583(e)(3). challenging a violation sufficiency grounds, supervisee “assumes a ‘heavy burden,’ because a district court need only ‘reasonably satisfied’ probationer has failed comply revoke sentence.” Colasuonno (2d Cir. 2012) (quoting Lettieri F.2d (2d Cir. 1990)). Here, did err finding there sufficient evidence supporting finding special conditions. A. 85–86. Contrary requirements conditions, refused “participate Computer/Internet Monitoring Program,” refused “comply mandates program.” Judgment Accordingly, sufficiency challenge without merit.
[17] Judgment (emphasis added).
[18] Appellant’s Br. 13–14 (quoting U.S.C. § 3583(d)(2)).
[19] Matta F.3d (2d Cir. 2015) (quoting Reyes (2d Cir. 2002)).
[20] explained “[t]he power to impose special conditions of supervised release . . . is vested exclusively district court.” Matta , 777 F.3d While “a district court may delegate a probation officer decisionmaking authority over certain minor details of supervised release—for example, selection of a therapy provider schedule”—it “may delegate Department decisionmaking authority which would make a defendant’s liberty itself contingent a probation officer’s exercise of discretion.” Id. ; see U.S.S.G. § 5D1.3(b) (“ court impose other of supervised release . . . .” (emphasis added)); cf. United States v. Peterson , F.3d 79, 85 (2d Cir. 2001) (holding two conditions— delegating officer decision whether require sex offender counseling decision whether require third ‐ party notifications—were impermissible delegations of judicial authority).
[21] Gall U.S. (2007); United States v. Rigas , F.3d (2d Cir. 2009) (“[T]he role of Appeals is limited examining a sentence reasonableness, akin review under ‘abuse ‐ discretion’ standard.”); Brown (2d Cir. 2005) (“We review propriety a abuse discretion.”). “[S]upervised release, [a] form post imprisonment supervision . . . imposed federal district court part total sentence addition period incarceration time initial sentencing convicted federal criminal
[25] v. Abrar , 58 F.3d 46 (2d Cir. 1995); accord United States v. McLaurin , 731 F.3d 262 (2d Cir. 2013).
[26] We focus here on Fourth Amendment. Packingham North Carolina , 137 S. Ct. 1730 (2017), however, Supreme struck down, a First Amendment, North Carolina law barred sex offenders having access social media (and other) internet sites. need not dwell on implications Packingham here. For one thing, Packingham is not directly on point. It involved internet ban —not internet or —and ban extended beyond completion sentence. id. at 1737 (noting, but seeming rely on, “the troubling fact law imposes severe restrictions on persons who already served their sentence and are no longer subject supervision criminal justice system”); cf. Lifshitz F.3d n.4 (2d Cir. 2004) (“Supervised release, parole, probation lie on continuum. The most severe ‘supervised release,’ ‘meted out addition to, lieu of, incarceration.’” (quoting Reyes F.3d 461)). Additionally, most significantly, raises no First Amendment challenge thus waived argument on appeal.
[27] (2d Cir. 2004).
[28] relevant sentence Lifshitz’s provided: “The shall consent installation systems enable officer or designee monitor filter use, regular random basis, on owned controlled defendant.” Id. n.3.
[29] Id. at 190.
[30] Id.
[31] Id. (citation omitted) (quoting, respectively, Nat ʹ l Treasury Emps. Union Von Raab , U.S. (1989) (drug tests customs officials), Bd. Educ. Earls U.S. (2002) (drug tests schoolchildren)).
[32] Id. Lifshitz did occasion again evaluate following our remand, but appears following effect 2011: The defendant use computer, Internet capable device, or similar electronic device access child pornography or communicate individual group purpose promoting sexual relations children. shall consent use and/or installation program shall monitor suspect use computer[s] owned
[34] Although might hypothetically raise objection use third party service, has done so here.
[35]
[36] For instance, Lifshitz as revised following remand, itself contained certain narrowing provisions (whereas, here, have construed has been implemented, not as it written). note ante . note there conflicting opinions record regarding feasibility using word processer capable gaining access internet. Compare A. 72–73 (USPO Bucholtz disputing availability feasibility internet disabled word processor), id. (the stating sentencing on alleged violations release: “In fact, unlike those who undergo drug testing, you have way avoid possibility intrusion altogether. You can draft your papers device that’s capable accessing internet.”).
[37] likewise fails raise delegation challenge here. But whether treatment susceptible delegation challenge, cf. Peterson at 85; Morin F.3d 516–17 (5th Cir. 2016), primary point, our view, treatment cannot implemented way directly conflicts other, specific conditions release.
[38] Notably, treatment agreement even refers its terms “conditions.” A 132–33. Part states: “I have read, understand acknowledge I am required follow all conditions listed below regarding my behavior. These have been explained me understandable manner I been allowed ask questions clarify parts agreement.” Id. It then proceeds enumerate fifteen “General Conditions.” Id. 132–33.
[39] Glenn
[40] A. 110–11 (the Court stating sentencing alleged violations release: “You must have known you would have been given permission if you would have asked. fact, Court required you given permission. Judge Arcara required that. And Ms. Bucholtz testified all would have taken you have been given permission phone call you would gotten explicit permission.”). Of course, did address fact written delivered letter USPO Bucholtz, well as fact USPO Bucholtz could say whether she sought charge before actually learning grounds objection agreement.
[41] Id.