19-2999-cr United States v. Denno
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL 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 TO 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 28th day of October, two thousand twenty.
Present: ROBERT D. SACK, ROBERT A. KATZMANN, WILLIAM J. NARDINI, Circuit Judges. _____________________________________
UNITED STATES OF AMERICA,
Appellee,
v. No. 19-2999-cr
GARDNER DENNO,
Defendant-Appellant. _____________________________________
For Appellee: Thomas R. Sutcliffe, Assistant United States Attorney, for Antoinette T. Bacon, Acting United States Attorney for the Northern District of New York, Syracuse, NY.
For Defendant-Appellant: Molly K. Corbett, Assistant Federal Public Defender, for Lisa Peebles, Federal Public Defender, Albany, NY.
1 Appeal from a judgment of the United States District Court for the Northern District of
New York (McAvoy, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED in part and VACATED in
part, and the case is REMANDED.
Defendant-Appellant Gardner Denno appeals from a judgment entered September 11,
2019 by the United States District Court for the Northern District of New York (McAvoy, J.)
sentencing Denno, following his guilty plea to six counts of distributing, receiving, and
possessing child pornography, to 85 months’ imprisonment to be followed by 15 years of
supervised release. We assume the parties’ familiarity with the underlying facts, the procedural
history of the case, and the issues on appeal.
Denno argues that the imposition of a 15-year term of supervised release was
unreasonable. “We review the reasonableness of a sentence under a deferential abuse-of-
discretion standard.” United States v. Brooks, 889 F.3d 95, 100 (2d Cir. 2018) (per curiam). 1 “A
sentence is substantively unreasonable only if it cannot be located within the range of
permissible decisions.” United States v. Betts, 886 F.3d 198, 201 (2d Cir. 2018). “A sentence is
procedurally unreasonable if the district court fails to calculate (or improperly calculates) the
Sentencing Guidelines range, treats the Sentencing Guidelines as mandatory, fails to consider the
§ 3553(a) factors, selects a sentence based on clearly erroneous facts, or fails adequately to
explain the chosen sentence.” United States v. Smith, 949 F.3d 60, 66 (2d Cir. 2020). “Where, as
here, a defendant does not object at sentencing to a district court’s failure to explain its
1 Unless otherwise indicated, in quoting cases, we omit all internal citations, quotation marks, footnotes, and alterations.
2 reasoning, we review the procedural challenge for plain error.” Id. “To establish plain error, a
defendant must demonstrate: (1) error, (2) that is plain, and (3) that affects substantial rights. If
all three conditions are met, we will then exercise our discretion to rectify this forfeited error
only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Bleau, 930 F.3d 35, 39 (2d Cir. 2019) (per curiam).
Denno has not identified any substantive or procedural unreasonableness in the 15-year
term of supervised release. The district court explained that a sentence within Denno’s
Sentencing Guidelines range of 151 to 188 months would be “greater than necessary to meet the
goals of sentencing outlined in the statute, including the need for the sentence to reflect the
seriousness of the offense, promote respect for the law and provide just punishment for the
offense, afford adequate deterrence to criminal conduct and protect the public from further
criminal activity.” App’x 85–86. Nonetheless, in light of the “extremely large volume of child
pornography” that Denno possessed, as well as the fact that he admitted to having downloaded it
over five years and his admitted attraction to minors, the court concluded that “a substantial
sentence is necessary in order to protect the public from future crimes that [Denno] may end up
committing and [to] afford adequate deterrence for such criminal conduct.” App’x 86. This
explanation adequately justifies the 15-year supervised release term. Although Denno argues that
the district court should have explained why the goals of sentencing could not be met by
imposing the minimum 10-year term, we do not “require[] a district court to explain in open
court why any particular unselected sentence would be inappropriate.” United States v. Rosa, 957
F.3d 113, 118 (2d Cir. 2020).
Next, Denno challenges the imposition of three special conditions of supervised release.
“[W]hile we ordinarily review the imposition of conditions of supervised release for abuse of
3 discretion, we review for plain error where, as here, the defendant had advance notice of the
challenged condition and failed to object during sentencing.” Bleau, 930 F.3d at 39.
Special Condition 3 directs that Denno “must not go to, or remain at, any place where
[he] know[s] children under the age of 18 are likely to be, including parks, schools, playgrounds,
and childcare facilities without the permission of the probation officer.” App’x 99. Special
Condition 4 provides that Denno “must not go to, or remain at, a place for the primary purpose of
observing or contacting children under the age of 18.” Id. The district court explained that it was
imposing these conditions “to prevent any kind of a danger to minors in the community” based
on the large amount of child pornography that Denno possessed, as well as his admitted
attraction to minors. App’x 87–88. We have previously approved the imposition of similar
conditions. See, e.g., United States v. MacMillen, 544 F.3d 71, 75 (2d Cir. 2008); United States
v. Dupes, 513 F.3d 338, 342, 344 (2d Cir. 2008).
Denno argues that Special Condition 3 is overbroad. However, such a restriction is
essentially equivalent to a prohibition of visiting places where “children are likely to
congregate,” which we have already upheld. MacMillen, 544 F.3d at 75. So understood, the
imposition of Special Condition 3 was not plainly erroneous.
We likewise reject Denno’s challenge to Special Condition 4. Although Denno argues
that this condition is unconstitutionally vague, it is commonly understood that having the
“primary purpose” of observing children is different from engaging in activities where
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19-2999-cr United States v. Denno
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL 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 TO 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 28th day of October, two thousand twenty.
Present: ROBERT D. SACK, ROBERT A. KATZMANN, WILLIAM J. NARDINI, Circuit Judges. _____________________________________
UNITED STATES OF AMERICA,
Appellee,
v. No. 19-2999-cr
GARDNER DENNO,
Defendant-Appellant. _____________________________________
For Appellee: Thomas R. Sutcliffe, Assistant United States Attorney, for Antoinette T. Bacon, Acting United States Attorney for the Northern District of New York, Syracuse, NY.
For Defendant-Appellant: Molly K. Corbett, Assistant Federal Public Defender, for Lisa Peebles, Federal Public Defender, Albany, NY.
1 Appeal from a judgment of the United States District Court for the Northern District of
New York (McAvoy, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED in part and VACATED in
part, and the case is REMANDED.
Defendant-Appellant Gardner Denno appeals from a judgment entered September 11,
2019 by the United States District Court for the Northern District of New York (McAvoy, J.)
sentencing Denno, following his guilty plea to six counts of distributing, receiving, and
possessing child pornography, to 85 months’ imprisonment to be followed by 15 years of
supervised release. We assume the parties’ familiarity with the underlying facts, the procedural
history of the case, and the issues on appeal.
Denno argues that the imposition of a 15-year term of supervised release was
unreasonable. “We review the reasonableness of a sentence under a deferential abuse-of-
discretion standard.” United States v. Brooks, 889 F.3d 95, 100 (2d Cir. 2018) (per curiam). 1 “A
sentence is substantively unreasonable only if it cannot be located within the range of
permissible decisions.” United States v. Betts, 886 F.3d 198, 201 (2d Cir. 2018). “A sentence is
procedurally unreasonable if the district court fails to calculate (or improperly calculates) the
Sentencing Guidelines range, treats the Sentencing Guidelines as mandatory, fails to consider the
§ 3553(a) factors, selects a sentence based on clearly erroneous facts, or fails adequately to
explain the chosen sentence.” United States v. Smith, 949 F.3d 60, 66 (2d Cir. 2020). “Where, as
here, a defendant does not object at sentencing to a district court’s failure to explain its
1 Unless otherwise indicated, in quoting cases, we omit all internal citations, quotation marks, footnotes, and alterations.
2 reasoning, we review the procedural challenge for plain error.” Id. “To establish plain error, a
defendant must demonstrate: (1) error, (2) that is plain, and (3) that affects substantial rights. If
all three conditions are met, we will then exercise our discretion to rectify this forfeited error
only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Bleau, 930 F.3d 35, 39 (2d Cir. 2019) (per curiam).
Denno has not identified any substantive or procedural unreasonableness in the 15-year
term of supervised release. The district court explained that a sentence within Denno’s
Sentencing Guidelines range of 151 to 188 months would be “greater than necessary to meet the
goals of sentencing outlined in the statute, including the need for the sentence to reflect the
seriousness of the offense, promote respect for the law and provide just punishment for the
offense, afford adequate deterrence to criminal conduct and protect the public from further
criminal activity.” App’x 85–86. Nonetheless, in light of the “extremely large volume of child
pornography” that Denno possessed, as well as the fact that he admitted to having downloaded it
over five years and his admitted attraction to minors, the court concluded that “a substantial
sentence is necessary in order to protect the public from future crimes that [Denno] may end up
committing and [to] afford adequate deterrence for such criminal conduct.” App’x 86. This
explanation adequately justifies the 15-year supervised release term. Although Denno argues that
the district court should have explained why the goals of sentencing could not be met by
imposing the minimum 10-year term, we do not “require[] a district court to explain in open
court why any particular unselected sentence would be inappropriate.” United States v. Rosa, 957
F.3d 113, 118 (2d Cir. 2020).
Next, Denno challenges the imposition of three special conditions of supervised release.
“[W]hile we ordinarily review the imposition of conditions of supervised release for abuse of
3 discretion, we review for plain error where, as here, the defendant had advance notice of the
challenged condition and failed to object during sentencing.” Bleau, 930 F.3d at 39.
Special Condition 3 directs that Denno “must not go to, or remain at, any place where
[he] know[s] children under the age of 18 are likely to be, including parks, schools, playgrounds,
and childcare facilities without the permission of the probation officer.” App’x 99. Special
Condition 4 provides that Denno “must not go to, or remain at, a place for the primary purpose of
observing or contacting children under the age of 18.” Id. The district court explained that it was
imposing these conditions “to prevent any kind of a danger to minors in the community” based
on the large amount of child pornography that Denno possessed, as well as his admitted
attraction to minors. App’x 87–88. We have previously approved the imposition of similar
conditions. See, e.g., United States v. MacMillen, 544 F.3d 71, 75 (2d Cir. 2008); United States
v. Dupes, 513 F.3d 338, 342, 344 (2d Cir. 2008).
Denno argues that Special Condition 3 is overbroad. However, such a restriction is
essentially equivalent to a prohibition of visiting places where “children are likely to
congregate,” which we have already upheld. MacMillen, 544 F.3d at 75. So understood, the
imposition of Special Condition 3 was not plainly erroneous.
We likewise reject Denno’s challenge to Special Condition 4. Although Denno argues
that this condition is unconstitutionally vague, it is commonly understood that having the
“primary purpose” of observing children is different from engaging in activities where
observation is merely incidental or accidental. See United States v. Balon, 384 F.3d 38, 43 (2d
Cir. 2004) (“[C]onditions of probation can be written—and must be read—in a commonsense
way.”).
4 Finally, Denno challenges Special Condition 9, which bars him from possessing or
viewing sexually explicit material. A ban on the possession of otherwise legal adult pornography
is an “unusual and severe condition[]” which “merit[s] our close examination.” United States v.
Eaglin, 913 F.3d 88, 95 (2d Cir. 2019). “We tolerate such conditions only in limited
circumstances[.]” Id. at 99. “Such bans must be supported on the record by detailed factual
findings establishing that the proposed ban is reasonably related to the sentencing factors set
forth in 18 U.S.C. § 3553(a) and that it is reasonably necessary to accomplish their objectives. A
general reference to ‘the public interest’ ordinarily will not suffice.” Id.
As the government concedes, the district court did not explain why an adult pornography
ban was necessary to achieve the goals of sentencing. This failure to provide any explanation
constitutes plain error. Accordingly, we vacate Special Condition 9 and remand to the district
court for further consideration of whether such a condition is necessary and, if so, to make the
requisite “detailed factual findings.” Id. 2
For the foregoing reasons, the judgment of the district court is AFFIRMED in part and
VACATED in part, and the case is REMANDED.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk
2 Although we conclude that the district court did not plainly err in imposing Special Conditions 3 and 4, the district court remains free, upon remand, to modify or clarify the terms of those conditions in response to the concerns raised by Denno in this Court. See 18 U.S.C. § 3583(e)(2).