21-1450 United States v. Lopez
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 ASUMMARY 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 19th day of May, two thousand twenty-two.
PRESENT: DENNY CHIN, RICHARD J. SULLIVAN, STEVEN J. MENASHI, Circuit Judges. _____________________________________ UNITED STATES OF AMERICA, Appellee, v. No. 21-1450 CARLOS FRANCISCO LOPEZ, AKA playfulchaos, Defendant-Appellant. _____________________________________ FOR APPELLANT: JAY S. OVSIOVITCH, Federal Public Defender’s Office, Western District of New York, Rochester, NY.
FOR APPELLEE: TIFFANY LEE, Assistant United States Attorney (Monica J. Richards, Assistant United States Attorney, on the brief), for Trini E. Ross, United States Attorney for the Western District of New York, Buffalo, NY.
Appeal from the judgment of the United States District Court for the
Western District of New York (Richard J. Arcara, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
Defendant-Appellant Carlos Francisco Lopez challenges his sentence of
147 months’ imprisonment and fifteen years’ supervised release following his
guilty plea to attempted enticement and transportation of a minor with intent to
engage in criminal sexual activity. On appeal, Lopez argues that his sentence was
substantively unreasonable, and that the district court erred in imposing a special
condition of supervised release requiring him to provide access to his financial
information. We assume the parties’ familiarity with the underlying facts,
procedural history, and issues on appeal.
2 “We review a sentence for substantive reasonableness under a deferential
abuse-of-discretion standard,” and will set aside a sentence as 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) (internal
quotation marks omitted). We ordinarily review conditions of supervised release
for abuse of discretion, but because Lopez failed to object to the financial-
monitoring condition before the district court, we review the condition for plain
error. United States v. Bleau, 930 F.3d 35, 39 (2d Cir. 2019).
Lopez argues that his terms of imprisonment and supervised release are
substantively unreasonable because both were greater than the mandatory
minimums – ten years and five years, respectively – and are thus longer than
necessary to serve the purposes of sentencing. But in addition to considering the
mandatory minimum sentences prescribed by Congress, a district court must also
consider “the kinds of sentence and the sentencing range established … by the
Sentencing Commission” in the Sentencing Guidelines. 18 U.S.C. § 3553(a)(4).
Here, the district court’s sentence fell well within the applicable Guidelines ranges
of 135 to 168 months’ imprisonment, and five years to a lifetime of supervised
release. Although there is no presumption that a within-Guidelines sentence is
3 reasonable, “in the overwhelming majority of cases, a Guidelines sentence will fall
comfortably within the broad range of sentences that would be reasonable in the
particular circumstances.” Betts, 886 F.3d at 201 (internal quotation marks
omitted). Moreover, the record reflects that the district court considered the
relevant 18 U.S.C. § 3553(a) sentencing factors, including Lopez’s personal history
and characteristics, his prior sex offenses, and the fact that he was on parole
supervision when he committed the instant offense. While Lopez may disagree
with the district court that terms of imprisonment and supervision above the
mandatory minimums were necessary to achieve the goals of sentencing, we defer
to the district court’s assessment. See United States v. Rigas, 583 F.3d 108, 123 (2d
Cir. 2009). Because Lopez’s sentence is not “shockingly high, shockingly low, or
otherwise unsupportable as a matter of law,” we affirm. Id.
Lopez also challenges one of the special conditions of supervised release
imposed by the district court. That condition provides: “In order to monitor
defendant’s compliance with not buying or subscribing to online services that
provide child pornography, he shall provide the U.S. Probation Office with access
to any requested personal and/or business financial information.” App’x at 91.
Lopez argues that, because he was not charged with a child pornography crime,
4 this condition is not reasonably related to the nature of his offense. He also
argues that Probation is already authorized to monitor his computer activity,
which is sufficient to ensure that he does not access child pornography.
A district court has discretion to “impose special conditions of supervised
release that are reasonably related to certain statutory factors governing
sentencing, [and that] involve no greater deprivation of liberty than is reasonably
necessary to implement the statutory purposes of sentencing.” United States v.
Eaglin, 913 F.3d 88, 94 (2d Cir. 2019) (internal quotation marks and alterations
omitted). Relevant factors include “the nature and circumstances of the offense
and the history and characteristics of the defendant,” the need to provide adequate
deterrence, and the need to “protect the public from further crimes of the
defendant.” Id. (quoting 18 U.S.C. § 3553(a)(1)–(2)). Ordinarily, “[a] district
court is required to make an individualized assessment when determining
whether to impose a special condition of supervised release, and to state on the
record the reason for imposing it; the failure to do so is error.” Betts, 886 F.3d at
202.
Although Lopez is correct that there is nothing in the record to suggest that
he previously purchased child pornography, the fact remains that Lopez has a
5 history of sex offenses involving minors – including the solicitation of nude photos
from underage girls. It was therefore not unreasonable for the district court to
conclude that Lopez might attempt to procure child pornography through other
means. Given that Lopez did not even object to this condition at sentencing and
our review is limited to plain error, we cannot say that the district court plainly
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21-1450 United States v. Lopez
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 ASUMMARY 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 19th day of May, two thousand twenty-two.
PRESENT: DENNY CHIN, RICHARD J. SULLIVAN, STEVEN J. MENASHI, Circuit Judges. _____________________________________ UNITED STATES OF AMERICA, Appellee, v. No. 21-1450 CARLOS FRANCISCO LOPEZ, AKA playfulchaos, Defendant-Appellant. _____________________________________ FOR APPELLANT: JAY S. OVSIOVITCH, Federal Public Defender’s Office, Western District of New York, Rochester, NY.
FOR APPELLEE: TIFFANY LEE, Assistant United States Attorney (Monica J. Richards, Assistant United States Attorney, on the brief), for Trini E. Ross, United States Attorney for the Western District of New York, Buffalo, NY.
Appeal from the judgment of the United States District Court for the
Western District of New York (Richard J. Arcara, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
Defendant-Appellant Carlos Francisco Lopez challenges his sentence of
147 months’ imprisonment and fifteen years’ supervised release following his
guilty plea to attempted enticement and transportation of a minor with intent to
engage in criminal sexual activity. On appeal, Lopez argues that his sentence was
substantively unreasonable, and that the district court erred in imposing a special
condition of supervised release requiring him to provide access to his financial
information. We assume the parties’ familiarity with the underlying facts,
procedural history, and issues on appeal.
2 “We review a sentence for substantive reasonableness under a deferential
abuse-of-discretion standard,” and will set aside a sentence as 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) (internal
quotation marks omitted). We ordinarily review conditions of supervised release
for abuse of discretion, but because Lopez failed to object to the financial-
monitoring condition before the district court, we review the condition for plain
error. United States v. Bleau, 930 F.3d 35, 39 (2d Cir. 2019).
Lopez argues that his terms of imprisonment and supervised release are
substantively unreasonable because both were greater than the mandatory
minimums – ten years and five years, respectively – and are thus longer than
necessary to serve the purposes of sentencing. But in addition to considering the
mandatory minimum sentences prescribed by Congress, a district court must also
consider “the kinds of sentence and the sentencing range established … by the
Sentencing Commission” in the Sentencing Guidelines. 18 U.S.C. § 3553(a)(4).
Here, the district court’s sentence fell well within the applicable Guidelines ranges
of 135 to 168 months’ imprisonment, and five years to a lifetime of supervised
release. Although there is no presumption that a within-Guidelines sentence is
3 reasonable, “in the overwhelming majority of cases, a Guidelines sentence will fall
comfortably within the broad range of sentences that would be reasonable in the
particular circumstances.” Betts, 886 F.3d at 201 (internal quotation marks
omitted). Moreover, the record reflects that the district court considered the
relevant 18 U.S.C. § 3553(a) sentencing factors, including Lopez’s personal history
and characteristics, his prior sex offenses, and the fact that he was on parole
supervision when he committed the instant offense. While Lopez may disagree
with the district court that terms of imprisonment and supervision above the
mandatory minimums were necessary to achieve the goals of sentencing, we defer
to the district court’s assessment. See United States v. Rigas, 583 F.3d 108, 123 (2d
Cir. 2009). Because Lopez’s sentence is not “shockingly high, shockingly low, or
otherwise unsupportable as a matter of law,” we affirm. Id.
Lopez also challenges one of the special conditions of supervised release
imposed by the district court. That condition provides: “In order to monitor
defendant’s compliance with not buying or subscribing to online services that
provide child pornography, he shall provide the U.S. Probation Office with access
to any requested personal and/or business financial information.” App’x at 91.
Lopez argues that, because he was not charged with a child pornography crime,
4 this condition is not reasonably related to the nature of his offense. He also
argues that Probation is already authorized to monitor his computer activity,
which is sufficient to ensure that he does not access child pornography.
A district court has discretion to “impose special conditions of supervised
release that are reasonably related to certain statutory factors governing
sentencing, [and that] involve no greater deprivation of liberty than is reasonably
necessary to implement the statutory purposes of sentencing.” United States v.
Eaglin, 913 F.3d 88, 94 (2d Cir. 2019) (internal quotation marks and alterations
omitted). Relevant factors include “the nature and circumstances of the offense
and the history and characteristics of the defendant,” the need to provide adequate
deterrence, and the need to “protect the public from further crimes of the
defendant.” Id. (quoting 18 U.S.C. § 3553(a)(1)–(2)). Ordinarily, “[a] district
court is required to make an individualized assessment when determining
whether to impose a special condition of supervised release, and to state on the
record the reason for imposing it; the failure to do so is error.” Betts, 886 F.3d at
202.
Although Lopez is correct that there is nothing in the record to suggest that
he previously purchased child pornography, the fact remains that Lopez has a
5 history of sex offenses involving minors – including the solicitation of nude photos
from underage girls. It was therefore not unreasonable for the district court to
conclude that Lopez might attempt to procure child pornography through other
means. Given that Lopez did not even object to this condition at sentencing and
our review is limited to plain error, we cannot say that the district court plainly
erred in imposing the financial-monitoring condition in order to “protect the
public from further crimes of the defendant.” 18 U.S.C. § 3553(a)(2)(C).
Moreover, even if it could be argued that the district court’s stated reason
for imposing the condition was insufficient, we may uphold the condition
imposed “if the district court’s reasoning is self-evident in the record.” Betts, 886
F.3d at 202 (internal quotation marks omitted). Here, the record reflects that
Lopez repeatedly purchased Greyhound bus tickets to transport his minor victims.
In addition to the one-way bus ticket from New York to California that he
purchased for the minor victim in this case, he has purchased at least three other
one-way bus tickets from Texas to California. Lopez made such purchases
intending to engage in criminal sexual conduct with minors; he also proposed
recording these sexual encounters, with a view toward creating child
pornography. Further, Lopez has a history of evading monitoring while on
6 supervision. He committed the instant offense while on parole from a state court
conviction (for sex offenses involving minors) – using a smart phone that he had
failed to report to his parole officer. In light of Lopez’s prior convictions
involving minors, history of evading supervision, and past purchases of bus
tickets to transport minor victims, the district court did not plainly err in
concluding that the financial-monitoring condition was reasonably related to “the
nature and circumstances of the offense and the history and characteristics of the
defendant.” Id. (quoting U.S.S.G. § 5D1.3(b)).
Additionally, the condition “involve[s] no greater deprivation of liberty
than is reasonably necessary to implement the statutory purposes of sentencing.”
Eaglin, 913 F.3d at 94 (internal quotation marks omitted). Lopez argues that the
financial-monitoring condition is unnecessary because Probation is already
authorized to monitor his computer activity. But as described above, Lopez has
evaded efforts to monitor his devices in the past and has committed sex crimes
while on supervision. There is good reason to believe that computer monitoring
alone will be insufficient to “protect the public from further crimes of the
defendant.” Id. (quoting 18 U.S.C. § 3553(a)(2)(C)). Based on the record before
7 us, therefore, the district court did not plainly err in imposing the financial-
monitoring condition.
We have considered Defendant’s remaining arguments and find them to be
meritless. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court