United States v. Fefee

Opinion

22-3070 United States v. Fefee

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 A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second Circuit, held at 2 the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, 3 on the 26th day of February, two thousand twenty-four. 4 5 PRESENT: 6 AMALYA L. KEARSE, 7 MICHAEL H. PARK, 8 MYRNA PÉREZ, 9 Circuit Judges. 10 _______________________________________ 11 12 United States of America, 13 14 Appellee, 15 16 v. 22-3070 17 18 David Fefee, 19 20 Defendant-Appellant. 21 _______________________________________ 22 23 FOR APPELLEE: Adrian S. LaRochelle and Carina H. 24 Schoenberger, Assistant United 25 States Attorneys, for Carla B. 26 Freeman, United States Attorney for 27 the Northern District of New York.

1 FOR DEFENDANT-APPELLANT: Melissa A. Tuohey, Assistant Federal 2 Public Defender, for Lisa A. Peebles, 3 Federal Public Defender for the 4 Northern District of New York. 5

6 Appeal from a judgment of the United States District Court for the Northern District of 7 New York (Mordue, J.). 8 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 9 DECREED that the judgment of the district court is AFFIRMED in part and REMANDED in 10 part. 11 Defendant-Appellant David Fefee appeals the conditions of his supervised release. 12 After completing a 160-month sentence for receiving and possessing child pornography, Fefee 13 began a lifetime of supervised release. He promptly violated the conditions of that release by 14 searching for child pornography and by using Incognito Mode to circumvent internet-monitoring 15 software that was a condition of his internet access. The district court reincarcerated Fefee 16 following these violations and revised the terms of his supervised release to include the two 17 conditions Fefee now challenges. We assume the parties’ familiarity with the underlying facts, 18 the procedural history of this case, and the issues on appeal. 19 I. The “Single-Device” Condition 20 Upon revocation, the district court added a new provision at the end of Special 21 Condition #7: “You may be limited to possessing one personal internet capable device to facilitate 22 the U.S. Probation Office’s ability to effectively monitor your internet related activities.” A.188. 23 Fefee challenges the district court’s modification of Special Condition #7 as an impermissible 24 delegation of sentencing power to the Probation Office. See, e.g., United States v. Matta, 777 25 F.3d 116, 122 (2d Cir. 2015) (“The power to impose special conditions of supervised release . . .

1 is vested exclusively in the district court.”). In United States v. Kunz, 68 F.4th 748 (2d Cir. 2023), 2 decided after briefing was completed in this appeal, we held that “any special condition granting 3 Probation discretion to decide whether or not to restrict a supervisee to a single internet-connected 4 device would constitute an impermissible delegation of the court’s judicial authority.” Id. at 767. 5 The district court did not expressly restrict Fefee to one device, nor did it make an individualized 6 assessment—based on Fefee’s conduct and history—that such a restriction was appropriate. 7 See id. (“We do not suggest that such a severe restraint on internet access could never be warranted, 8 but rather that it would require particularized justification by the court.”). Accordingly, 9 we remand, directing the district court to vacate the final sentence of Special Condition #7 as an 10 impermissible delegation of the district court’s sentencing authority to the Probation Office. 11 The district court may determine for itself whether to impose this limitation based on appropriate 12 on-the-record findings. See United States v. LaVancher, No. 22-1709, 2023 WL 7293766, at *3 13 (2d Cir. Nov. 6, 2023). 14 II. The “Internet Limitations” Condition 15 Fefee also challenges the imposition of Special Condition #9, which reads:

16 Your internet use must be limited and/or restricted under conditions to be 17 set by the U.S. Probation Office in accordance with their Computer and 18 Internet Monitoring Program. Such internet restriction may include a 19 limitation of your daily internet use and/or the ban of certain websites, 20 applications, chat rooms, or other internet activities as determined by the 21 U.S. Probation Office. These determinations will be based upon an 22 evaluation of your risk and needs, along with consideration of the factors 23 outlined in 18 U.S.C. § 3553(a).

24 A.188. According to Fefee, this condition impermissibly delegates sentencing authority to the 25 Probation Office, is unconstitutionally vague, and bears an insufficient relationship to the nature 26 of his offense.

1 Although the imposition of conditions of supervision is a task for district courts, the 2 execution of those conditions is the responsibility of the Probation Office. Part and parcel of that 3 responsibility is choosing minor details of how to implement the district court’s chosen conditions. 4 Kunz, 68 F.4th at 765. What constitutes a “minor” detail depends on context. Id. at 765–66. 5 But in “the context of the broader monitoring regime” that the district court imposed here, the 6 choices as to which websites, applications, etc., Fefee may access are “minor details.” Id. at 766; 7 United States v. Whitaker, No. 21-1543, 2023 WL 5499363, at *3 (2d Cir. Aug. 25, 2023) 8 (“Although it is conceivable that Probation could manage Whitaker’s supervision in a way that 9 affects a ‘significant liberty interest’ and therefore exceeds its delegated authority, we need not 10 construe the condition on its face as permitting it to do so where a narrower interpretation is 11 possible.”). We express no opinion on “[s]peculative future developments” about “future 12 incremental computer monitoring adjustment[s that] may perhaps impose a greater burden on 13 [Fefee’s] day-to-day existence,” Kunz, 68 F.4th at 773–74. Should the Probation Office impose 14 such a restriction in the future, Fefee will be free to raise an as-applied objection to the district 15 court. Id. at 774 & n.14. “For now, we are precluded from deciding such hypotheticals.” Id. 16 at 773. 17 The same is true of any vagueness challenges, which are presently unripe. See id. at 764– 18 65 & n.7, 768–69 & n.9; LaVancher, 2023 WL 729376, at *3 (first citing United States v. Rubel, 19 823 F. App’x 1, 7–8 (2d Cir. 2020), then United States v. Leone, 813 F. App’x 665, 669 (2d Cir. 20 2020)). 21 Finally, we conclude that Special Condition #9 “is reasonably related to” the sentencing 22 factors. United States v. Browder, 866 F.3d 504, 511 (2d Cir. 2017) (citation omitted); see 23 U.S.S.G. § 5D1.3(b)(1) (requiring that special conditions be “reasonably related to,” among other

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1 things, “the nature and circumstances of the offense and the history and characteristics of the 2 defendant”). The district court made an individualized assessment and explained its reasoning 3 on the record. United States v. Eaglin, 913 F.3d 88, 94 (2d Cir. 2019). It pointed to the 4 immediacy and flagrancy of Fefee’s violations—within months of beginning supervision, he 5 searched for and accessed sexually explicit images of young boys—and the need to support his 6 ongoing rehabilitation. The district court tied Special Condition #9 to Fefee’s violative conduct 7 and the factors set forth in 18 U.S.C. § 3553(a). A.164, 181. Moreover, the condition comports 8 with the Sentencing Guidelines’ recommendation that an online offender’s conditions of 9 supervised release should “limit[] the use of a computer or an interactive computer service.” 10 U.S.S.G. § 5D1.3(d)(7)(B); accord 18 U.S.C. § 3583(d)(3) (requiring district courts to consider 11 “pertinent policy statements issued by the Sentencing Commission” in addition to the relevant 12 § 3553(a) factors when crafting conditions of supervised release). This special condition thus 13 fell within the “wide latitude” district courts enjoy in crafting conditions of supervision. Kunz, 14 68 F.4th at 758. 15 We have considered Fefee’s remaining arguments and find them to be without merit. 16 Accordingly, the judgment of the district court is AFFIRMED in part and REMANDED in part 17 with instructions to vacate the final sentence of Special Condition #7.

18 FOR THE COURT: 19 Catherine O’Hagan Wolfe, Clerk of Court