United States v. Barden

• Court: Court of Appeals for the Second Circuit
• Decided: May 17, 2023
• Docket: 22-492
• Status: Unpublished

Opinion

22-492 United States v. Barden

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM- MARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FED- ERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 17th day of May, two thousand twenty-three.

Present: DEBRA ANN LIVINGSTON, Chief Judge, REENA RAGGI, MARIA ARAÚJO KAHN, Circuit Judges. _____________________________________

UNITED STATES OF AMERICA,

Appellee,

v. 22-492

DAVID BARDEN,

Defendant-Appellant. _____________________________________

For Appellee: PAUL SCOTTI (Susan Corkery, on the brief), Assistant United States Attorneys for Breon Peace, United States Attorney for the Eastern District of New York, Brook- lyn, N.Y.

For Defendants-Appellees: YUANCHUNG LEE, Federal Defenders of New York, Inc., New York, N.Y.

1 Appeal from a judgment of the United States District Court for the Eastern District of New

York (Azrack, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is VACATED IN PART and REMANDED

for further proceedings consistent with this order.

Defendant-Appellant David Barden (“Barden”) appeals from the March 9, 2022 final judg-

ment of conviction entered by the United States District Court for the Eastern District of New York

(Azrack, J.) for one count of receipt of child pornography, in violation of 18 U.S.C. §§ 2252(a)(2)

and (b)(1). The district court sentenced Barden principally to 96 months’ imprisonment and five

years’ supervised release. On appeal, Barden primarily argues that the district court violated his

right to be present at his sentencing by imposing conditions of supervised release in its written

judgment, without orally pronouncing them at his sentencing. Barden centers his claims on three

special conditions of supervision, which (1) require him to undergo polygraph examinations as

part of a treatment program for sexual disorders (“Condition 1”); (2) bar him from electronically

accessing pornography, including adult pornography (“Condition 3”); and (3) obligate him to dis-

close to probation his username and passwords for all accounts he uses for electronic communica-

tions and file storage (“Condition 4”). Barden additionally claims that the district court failed to

explain on the record its reasons for imposing Conditions 1 and 3.

The Government concedes that imposition of Condition 1, the polygraph condition, re-

quired Barden’s presence and an on-the-record explanation and that the case should be remanded

to afford the district court the opportunity to consider this condition anew. We agree with the

Government as to Condition 1, but further conclude that the district court erred in imposing Con-

ditions 3 and 4 outside of Barden’s presence and without adequate explanation as to Condition 3.

2 In explaining the basis for our decision, we assume the parties’ familiarity with the facts, record

of prior proceedings, and arguments on appeal.

* * *

Where a defendant does not raise an objection to a condition of supervised release in the

proceedings below, our review is ordinarily for plain error. See United States v. Washington, 904

F.3d 204, 207 (2d Cir. 2018). But where, as here, the defendant did not have sufficient notice

that a particular condition of supervised release might be imposed, we apply a “relaxed form of

plain error review.” United States v. Matta, 777 F.3d 116, 121 (2d Cir. 2015) (internal quotation

marks omitted).

“Under both the Constitution and Federal Rule of Criminal Procedure 43(a)(3), a criminal

defendant has the right to be present during sentencing.” United States v. Leroux, 36 F.4th 115,

120 (2d Cir. 2022) (citation omitted). In adhering to this rule, we have generally held that when

there is a “variation between an oral pronouncement of sentence and a subsequent written judg-

ment, the oral pronouncement controls, and any burdensome punishments or restrictions added in

the written judgment must be removed.” United States v. Rosario, 386 F.3d 166, 168 (2d Cir.

2004) (internal citations and footnote omitted). “We have derogated from this general rule and

allowed a written modification of the spoken sentence only in cases in which the modification

added a condition of supervised release classified as ‘mandatory,’ ‘standard,’ or ‘recommended’

in United States Sentencing Guidelines [“U.S.S.G”] sections 5D1.3(a), (c), and (d) or added mere

‘basic administrative requirements that are necessary to supervised release.’” Washington, 904

F.3d at 208 (quoting Rosario, 386 F.3d at 169). 1

1 The written judgment of conviction here contains 24 conditions of supervised release—six of which are “mandatory” conditions outlined in U.S.S.G. § 5D1.3(a), thirteen of which are “standard”

3 Applying this standard, the district court erred in imposing all three special conditions at

issue without pronouncing them orally at sentencing. None of the conditions concerning poly-

graph examinations, banning adult pornography, or sharing login information for electronic com-

munications and file-storage accounts can be classified as mandatory, standard, or recommended

conditions of supervised release under the relevant Guidelines provision. Nor are they basic ad-

ministrative requirements inherent in supervised release. See United States v. Thomas, 299 F.3d

150, 154–55 (2d Cir. 2002). The Government contends that Barden’s presence was not required

to impose Conditions 3 or 4, which, respectively, prohibit Barden from electronically accessing

adult pornography and require him to share his electronic communications and file-storage account

information, because these conditions are “consistent with the policy statement enumerating ‘spe-

cial’ conditions in U.S.S.G. § 5D1.3(d).” Gov. Br. 22. But we have never held that a defendant

need not be present for a district court to impose conditions of supervision that are merely “con-

sistent with” those recommended in the Guidelines. Even if such conditions may be linked to

Barden’s offense conduct, the district court’s failure to pronounce them at his sentencing consti-

tutes error. See, e.g., Thomas, 299 F.3d at 154–55 (vacating a condition related to the defendant’s

offense conduct that “augment[ed]” a mandatory condition but was “not necessary to clarify or

carry out any of § 5D1.3’s mandatory or standard conditions”). 2 The Government argues that

conditions recommended by U.S.S.G. § 5D1.3(c), and five of which are “special” conditions. As previ- ously noted, Barden focuses on three of these special conditions, one of which the Government concedes was imposed in error. The two other special conditions did not require Barden’s presence for their impo- sition, as one merely refines the mandatory condition that Barden comply with federal sex registration requirements, U.S.S.G. § 5D1.3(a)(7), while the other tracks the requirement that a sex offender submit to searches conducted by probation, as recommended in U.S.S.G. § 5D1.3(d)(7)(C). 2 The Government separately argues that Barden waived any claim regarding his presence by not objecting when the district court announced its intent to specify his conditions of supervised release in the written judgment. We decline to find waiver here, however, because although the district court announced

4 Condition 4 is “necessary to clarify or carry out” § 5D1.3(d)(7)(C)’s search condition. Id. We

need not here decide whether a case might arise where such necessity is beyond question. We

conclude only that, on the existing record, it is not clear that this is such a case. Thus, remand is

warranted for further action by the district court.

In addition, and as already noted, the Government concedes that as to Condition 1, the

polygraph condition, the district court was required to perform an individualized assessment and

state on the record its reasons for imposing this condition. See United States v. Betts, 886 F.3d

198, 202 (2d Cir. 2018). We conclude that the district court was similarly required to assess

Barden’s individual circumstances and to explain its reasons for imposing Condition 3, which pro-

hibits Barden’s electronic access to adult pornography. See United States v. Eaglin, 913 F.3d 88,

99 (2d Cir. 2019) (“[W]e have routinely rejected bans on adult pornography as a condition of

supervised release where the district court failed adequately to connect the need for that condition

to the defendant’s likelihood of recidivism or to another sentencing factor.”).

While our precedent did not require the district court to impose the remaining special con-

ditions in Barden’s presence and with an on-the-record explanation as to each, we reiterate that

issues such as those presented in this case can be “avoided rather easily” if district courts, when

stating the defendant’s sentence “indicate the conditions that accompany it in open court and with

appropriate precision.” Thomas, 299 F.3d at 156. Doing so “serves the salutary function of

insuring that a defendant fully understands the contours of his punishment at a time when any

it would impose special conditions of supervision, Barden lacked notice of what those special conditions would be prior to the issuance of the written judgment and thus did not knowingly and voluntarily waive his entitlement to be present. See United States v. Jones, 381 F.3d 114, 122 (2d Cir. 2004) (explaining that a defendant “must object at the time of the violation or the defendant’s right to be present will be deemed waived” but such a waiver “must be knowing and voluntary”).

5 questions he or his lawyer may have can be explored and resolved in person.” Id. For all the

procedural tasks the law imposes on sentencing judges, we maintain the belief that “requiring dis-

trict courts to make clear during the sentencing hearing exactly which conditions of release it in-

tends to impose adds only minimally to these responsibilities.” Id.

For the foregoing reasons, we vacate Special Conditions 1, 3, and 4 and remand the case

for the limited purpose of reconsidering and, if appropriate, reimposing these supervision condi-

tions at a hearing with Barden present.

We have considered the parties’ remaining arguments and find them to be without merit.

Accordingly, we VACATE IN PART the judgment of the district court and REMAND the case

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court