United States v. Aldeen

792 F.3d 247, 2015 U.S. App. LEXIS 11591, 2015 WL 4072106
Court of Appeals for the Second Circuit·Decided July 6, 2015·No. Docket No. 14-2706-cr·Published·Cited by 110 cases

Opinion

CHIN, Circuit Judge:

Defendant-appellant Ahmed Aldeen appeals from a July 28, 2014 judgment of the United States District Court for the Eastern District of New York (Townes, /.), convicting him, following a guilty plea, of violating for the second time the conditions of his supervised release by associating with a convicted felon. As he admitted at his plea allocution, Aldeen spoke to a member of his sex offender treatment group in the subway, after one of their sessions. The district court revoked Aldeen’s supervision and sentenced him to eighteen months’ imprisonment to be followed by an additional three years of supervised release.

Aldeen now challenges his above-Guidelines sentence on both procedural and substantive grounds. For the reasons set forth below, we remand for further proceedings consistent with this opinion.

BACKGROUND

In August 2008, Aldeen was convicted, following a guilty plea, of one count of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5) and (b)(2). In his plea allocution, Aldeen admitted that in the course of downloading adult, pornography, he came into possession of two videos of child pornography, which he kept and viewed even after discovering they contained child pornography. The district court sentenced him to fifty-one months’ imprisonment and three years’ supervised release. The judgment contained the standard conditions of supervision, see U.S.S.G. § 5D1.3(c), as well as five special conditions, see id. § 5D1.3(d), including a ban'on using a computer or similar electronic device to access pornography “of any kind,” and notifying the Probation Department of any computer to which he had access.

After being released from prison, Al-deen began serving his initial term of supervised release in February 2010. On September 28, 2011, the Probation Department charged him with violating several of his conditions of supervised release, including by failing to notify the Probation Department that he had certain access to the internet. He eventually pled guilty to failing to report to his Probation Officer. On August 22, 2012, the district court sentenced him to ten months’ imprisonment, the top of the Guidelines range, as well as three additional years’ supervised release. The judgment, however, was not entered until January 28, 2013.

For this second term of supervised release, the district court imposed the standard conditions of supervision and three special conditions. Relevant to this appeal are the following:

[Standard Condition] 9) [T]he defendant shall not associate with any persons engaged in criminal activity, and shall not associate with any person convicted of a felony, unless granted permission to do so by the probation officer....
[Special Condition] 1) The defendant shall participate in a mental health treatment program, which may include participation in a treatment program for sexual disorders....
[Special Condition] 2) The defendant is not to use a computer, Internet capable device, or similar electronic device to access pornography of any kind.... The defendant shall also cooperate with the United States Probation Department’s Computer and Internet Monitoring program. Cooperation shall include ... [250]*250identifying computer systems, Internet capable devices, and/or similar electronic devices the defendant has access to.... The defendant may be limited to possessing only one personal Internet capable device, to facilitate our department’s ability to effectively monitor his Internet related activities.

App. at 47-48.1

In 2014, one year into this second term of supervised release, Aldeen was again charged with violating the conditions of supervision. According to the Probation Department, Aldeen allegedly spoke with another member of his treatment group, also a convicted felon, on the subway following a group treatment session, in violation of Standard Condition 9. Probation stated that it had “received information” that Aldeen had asked his fellow group member for “assistance with leaving the country undetected.” Id. at 60. The Probation Department also charged Aldeen with violating Special Condition 2, which barred certain possession and uses of computers and other internet capable devices, by, among other things, possessing an unreported cellphone that contained pornographic images. The Probation Department additionally charged Aldeen with committing a state crime by failing to disclose all internet accounts and identifiers, including social networking accounts, in violation of his level 1 registered sex offender obligations under the New York State Electronic Security and Targeting of Online Predators Act.

Pursuant to an agreement with the government, Aldeen pled guilty on April 17, 2014 to the first charge: associating with a person convicted of a felony. He allocuted that he “spoke to one of [his] group at the subway,” knowing the person had been convicted of a felony, and knowing that he was not supposed to have contact with other group members outside the treatment program. Id. at 78.

The first charge was a grade “C” violation, as defined by U.S.S.G. § 7Bl.l(a)(3). Because Aldeen was in Criminal History Category II when he was originally sentenced, the Guidelines range for the violation was four to ten months’ imprisonment per U.S.S.G. § 7B1.4(a). Because his original offense of possession of child pornography in violation of 18 U.S.C. § 2252A was a Class C felony, see 18 U.S.C. §§ 2252A(b)(2), 3559(a)(3), the maximum statutory sentence that could be imposed on revocation was twenty-four months, see 18 U.S.C. § 3583(e)(3).

On April 23, 2014, the district court sentenced Aldeen to eighteen months’ imprisonment and an' additional term of supervised release of three years.2 [251]*251The district court explained its sentence as follows:

Mr. Aldeen, you haven’t even tried. You lie to everybody. I looked back through my notes. When I accepted your guilty plea, I did so and I said even though I know he’s lied about parts of this, and you continue to do that. You used this unauthorized electronic device, this cell phone. You lied to your probation officer, and it was just totally unbelievable to me that you came to probation with that telephone, and you gave it to the officers downstairs and then picked it up as you were going out the door.
I mean, you just ignored the conditions that have been set for you. You admitted contact with a felon outside of the treatment facility. You lied in treatment. ... [Y]ou took a polygraph examination,3 which indicated that you lied in your denial of contact with minors. I just — and this is your second violation of supervised release. I just find that in order to deter you and hopefully cause you to really think about this and stop committing these offenses, you are — the guidelines for the violation in charge one is — those guidelines are four to ten months. That is far too short a term to afford deterrence in this case.

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United States v. Aldeen, 792 F.3d 247, 2015 U.S. App. LEXIS 11591, 2015 WL 4072106 (2d Cir. 2015).

792 F.3d 247 (United States v. Aldeen) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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