24-1706-cr United States v. Love
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 8th day of April, two thousand twenty-five.
PRESENT: PIERRE N. LEVAL, JOSEPH F. BIANCO, WILLIAM J. NARDINI, Circuit Judges. _____________________________________
UNITED STATES OF AMERICA,
Appellee,
v. 24-1706-cr
THOMAS LOVE,
Defendant-Appellant. ∗ _____________________________________
FOR APPELLEE: Thomas R. Sutcliffe, Assistant United States Attorney, for Carla B. Freedman, United States Attorney for the Northern District of New York, Syracuse, New York.
∗ The Clerk of the Court is respectfully directed to amend the caption on this Court’s docket to be consistent with the caption on this order. FOR DEFENDANT-APPELLANT: Molly K. Corbett, Assistant Federal Public Defender, for Office of the Federal Public Defender, Albany, New York.
Appeal from a judgment of the United States District Court for the Northern District of
New York (Anne M. Nardacci, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court, entered on June 21, 2024, is AFFIRMED in
part and VACATED in part, and the case is REMANDED for further proceedings consistent with
this summary order.
Defendant-Appellant Thomas Love appeals from the district court’s judgment of
conviction following his guilty plea, pursuant to a plea agreement, to one count of receipt of child
pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A). Following his guilty plea, the district
court sentenced Love principally to a term of 121 months’ imprisonment, to be followed by a 20-
year term of supervised release. On appeal, Love argues that his sentence was substantively
unreasonable and that the district court abused its discretion by imposing certain special conditions
of supervision, namely, (1) limiting him to the possession of a single internet-capable device, and
(2) requiring him to notify his employer of his conviction if the employment involves use of a
computer and to obtain approval for such employment from the United States Probation Office
(the “Probation Office”). We assume the parties’ familiarity with the underlying facts, procedural
history, and issues on appeal, to which we refer only as necessary to explain our decision.
I. Substantive Reasonableness
Love argues that his 121-month sentence, which was below his advisory range of 151 to
181 months under the United States Sentencing Guidelines (“Guidelines”), was substantively
unreasonable. In particular, Love asserts that, “[w]hile [he] received a sentence below the
2 [G]uidelines (albeit correctly calculated), that sentence was still unreasonable because the district
court gave no indication that it considered the [G]uidelines’ flaws.” Appellant’s Br. at 23. We
disagree.
We review a challenge to the substantive reasonableness of a sentence under a “deferential
abuse-of-discretion standard.” United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc)
(internal quotation marks and citation omitted). Under this deferential standard, “we do not
consider what weight we would ourselves have given a particular factor [at sentencing]. Rather,
we consider whether the factor, as explained by the district court, can bear the weight assigned it
under the totality of circumstances in the case.” Id. at 191 (internal citation omitted). A sentence
is therefore substantively unreasonable only if “affirming it would damage the administration of
justice because the sentence imposed was shockingly high, shockingly low, or otherwise
unsupportable as a matter of law.” United States v. Park, 758 F.3d 193, 200 (2d Cir. 2014) (per
curiam) (internal quotation marks and citation omitted). Moreover, we have emphasized that,
because 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,” in most
circumstances, it is “difficult to find that a below-Guidelines sentence is unreasonabl[y severe].”
United States v. Perez-Frias, 636 F.3d 39, 43 (2d Cir. 2011) (per curiam) (internal quotation marks
and citation omitted).
Here, we discern no abuse of discretion in the district court’s imposition of the 121-month
sentence after its consideration of the factors set forth in 18 U.S.C. § 3553(a). In imposing the
sentence, the district court relied heavily on “the nature and circumstances of the offense” and the
seriousness of Love’s criminal conduct. App’x at 102; see 18 U.S.C. § 3553(a)(1)–(2)(A). For
example, the district court noted that the defendant possessed “over 300 images of child
3 pornography,” including images “portray[ing] sadistic conduct and other depictions of violence or
sexual abuse.” App’x at 102. The district court further emphasized that Love distributed at least
some of the child pornography he possessed. The district court thus determined that the 121-month
sentence “[was] sufficient, but not greater than necessary to meet the goals of sentencing outlined
in [Section 3553(a)].” Id. Given the seriousness of Love’s conduct and the danger that such
conduct poses to the public, we conclude that the Section 3553(a) factors upon which the district
court relied “can bear the weight assigned [them] under the totality of circumstances in the case,”
Cavera, 550 F.3d at 191, and the 121-month sentence was not “shockingly high . . . or otherwise
unsupportable as a matter of law,” Park, 758 F.3d at 200 (internal quotation marks and citation
omitted).
Love argues that the district court’s sentence is substantively unreasonable because the
court gave no indication that it considered the flaws in the application of Guidelines Section 2G2.2
governing child pornography offenses. We find this argument unpersuasive. To be sure, we have
cautioned that Section 2G2.2 “is fundamentally different from most and that, unless applied with
great care, [it] can lead to unreasonable sentences that are inconsistent with what § 3553 requires.”
United States v. Dorvee, 616 F.3d 174, 184 (2d Cir. 2010); accord United States v. Jenkins, 854
F.3d 181, 188 (2d Cir. 2017). Indeed, Section 2G2.2 can produce sentencing ranges “rapidly
approaching the statutory maximum, based solely on sentencing enhancements that are all but
inherent to the crime of conviction.” Dorvee, 616 F.3d at 186. However, “this Court presumes
that the sentencing judge has considered all relevant [Section] 3553(a) factors and arguments
unless the record suggests otherwise.” United States v. Rosa, 957 F.3d 113, 118 (2d Cir. 2020);
see also United States v. Griswold, No. 23-7806-cr, 2024 WL 4601448, at *2 (2d Cir. Oct. 29,
2024) (summary order) (explaining that the district court is not “required to explain its reasoning
4 for rejecting a challenge to the merits of a Guidelines provision”) (citing United States v. Thomas,
628 F.3d 64, 72 (2d Cir. 2010)). Here, the district court noted that it reviewed the parties’
sentencing submissions, and there is no basis on this record to suggest that the district court did
not consider Love’s arguments in his written sentencing submission regarding the flaws in
Section 2G2.2 as outlined in Dorvee. Indeed, the district court ultimately imposed a 121-month
sentence that was 30 months below the Guidelines range and fell “well short of the statutory
maximum” of 240 months. United States v. Aumais, 656 F.3d 147, 157 (2d. Cir. 2011). In short,
the concerns we expressed in Dorvee provide no grounds for concluding the 121-month sentence
in this case was substantively unreasonable.
We similarly find unpersuasive Love’s claim that the district court failed to adequately
consider other mitigating factors, including Love’s argument regarding his reduced risk of
recidivism. As a threshold matter, the district court expressly noted its consideration of mitigating
factors, such as “[his] family ties, his employment history, his mental and emotional condition,
[and] his substance abuse history,” as well as the fact that “[t]he instant offense represent[ed] [his]
first felony conviction.” App’x at 102. In any event, the district court was not required to address
every potential mitigating factor nor, as Love further suggests, was it required to specifically
address “why a sentence at the requested mandatory minimum of 60 months would not satisfy”
the need to protect the public. Appellant’s Br. at 17; see Rosa, 957 F.3d at 118 (emphasizing that
we have “never required a district court to explain in open court why any particular unselected
sentence would be inappropriate”). At bottom, Love’s argument reflects a disagreement with the
district court’s weighing of certain Section 3553(a) factors. However, given the overall
reasonableness of the sentence, such a disagreement does not demonstrate an abuse of discretion.
See United States v. Davis, 82 F.4th 190, 203 (2d Cir. 2023) (“[T]he weight to be afforded any
5 sentencing factor is a matter firmly committed to the discretion of the sentencing judge and is
beyond our review, so long as the sentence ultimately imposed is reasonable.” (internal quotation
marks and citation omitted)).
Accordingly, we conclude that the sentence was substantively reasonable.
II. Special Conditions of Supervised Release
Love also argues that the district court erred in imposing special conditions of supervised
release that: (1) limited him to possessing one internet-capable device unless the possession of
additional devices is approved by the court (Special Condition 12); and (2) required him to notify
his employer of his conviction if the employment requires the use of a computer and to obtain
approval for such employment from the United States Probation Office (Special Condition 13).
We generally review the imposition of a special condition of supervised release for abuse
of discretion. United States v. Dupes, 513 F.3d 338, 342–43 (2d Cir. 2008). However, when a
defendant does not object to the imposition of the special condition at sentencing, we review for
plain error. United States v. Villafuerte, 502 F.3d 204, 207 (2d Cir. 2007). Under the plain error
standard, we consider whether: “(1) there is an error; (2) the error is clear or obvious, rather than
subject to reasonable dispute; (3) the error affected the appellant's substantial rights; and (4) the
error seriously affects the fairness, integrity or public reputation of judicial proceedings.” United
States v. Miller, 954 F.3d 551, 557–58 (2d Cir. 2020) (internal quotation marks and citation
“District courts possess broad discretion in imposing conditions of supervised release.”
United States v. Betts, 886 F.3d 198, 202 (2d Cir. 2018). A district court may impose special
conditions if they are “reasonably related” to: “(A) the nature and circumstances of the offense
and the history and characteristics of the defendant; (B) the need for the sentence imposed to afford
6 adequate deterrence to criminal conduct; (C) the need to protect the public from further crimes of
the defendant; and (D) the need to provide the defendant with needed educational or vocational
training, medical care, or other correctional treatment in the most effective manner.” U.S.S.G.
§ 5D1.3(b)(1); accord 18 U.S.C. §§ 3553(a), 3583(d)(1). “[A] condition may be imposed if it is
reasonably related to any one or more of the specified factors.” United States v. Abrar, 58 F.3d
43, 46 (2d Cir. 1995). Further, a special condition must “involve no greater deprivation of liberty
than is reasonably necessary” for those purposes, and it must be “consistent with any pertinent
policy statements issued by the Sentencing Commission.” U.S.S.G. § 5D1.3(b)(2); accord 18
U.S.C. § 3583(d)(2)–(3); United States v. Myers, 426 F.3d 117, 125 (2d Cir. 2005). Thus, a district
court’s discretion to impose special conditions is not unfettered, and we “will carefully scrutinize
unusual and severe conditions.” Myers, 426 F.3d at 124 (internal quotation marks and citation
omitted). Moreover, when determining whether to impose special conditions, “[a] district court is
required to make an individualized assessment . . . and to state on the record the reason for
imposing it; the failure to do so is error.” Betts, 886 F.3d at 202. If the district court does not
provide such an explanation, the condition at issue can be upheld “only if the district court’s
reasoning is self-evident in the record.” Id. (internal quotation marks and citation omitted).
Both Love and the government agree, and, as set forth below, our review of the record
confirms that the district court did not adequately articulate its reasons for imposing the challenged
portions of Special Conditions 12 and 13.
A. The One Internet-Capable Device Restriction
Special Condition 12 requires Love to participate in the Internet and Computer Monitoring
Program (“ICMP”), which allows the Probation Office to monitor any computer, data storage
device, or any internet capable device possessed and used by Love, through hardware and software
7 installed on those devices. As part of that special condition, and over Love’s objection, the district
court directed that, “[u]nless otherwise approved by the Court, [Love] must be limited to
possessing one personal internet-capable device to facilitate the US Probation Office’s ability to
effectively monitor [his] internet-related activity.” App’x at 110.
In United States v. Kunz, 68 F.4th 748 (2d Cir. 2023), we explained that “a restriction
limiting a supervisee to just one internet-connected device would pose a significant burden on his
liberty, and therefore would need to be imposed by the court and justified by particularized on-
the-record findings.” Id. at 767. However, we emphasized that we were not suggesting that “such
a severe restraint on internet access could never be warranted, but rather that it would require
particularized justification by the court.” Id.
Here, the district court did provide justifications for the one-device limitation, noting that
(1) Love “used multiple devices as well as multiple social media or communications applications
and sanitized or false usernames to receive and distribute child pornography,” and (2) given his
use of multiple accounts and devices, allowing him to possess “more than one internet-capable
device is likely to cause a challenge to the effective supervision of [his] internet use.” App’x at
93. However, in reaching this determination, the district court failed to consider one of Love’s
principal arguments against the imposition of this limitation, namely, that the Probation Office,
utilizing its ICMP program, could monitor multiple internet devices just as easily as it could
monitor a single device. As the government concedes, if Love’s assertion is correct, “the one-
device restriction would be unnecessary to properly supervise [him] and would cause a greater
deprivation of liberty than required.” Appellee’s Br. at 31. Indeed, the government further
acknowledges that it “has learned that technological improvements to probation’s monitoring
capabilities have enhanced its ability to monitor multiple devices simultaneously, a fact of which
8 the district court may not have been aware at the time it imposed the condition.” Id. Accordingly,
we agree with the parties that the one-device restriction in Special Condition 12 should be vacated
and the action remanded to allow the district court to determine whether this restriction is
reasonably necessary, especially in light of this new information provided by the government, and,
if so, to provide additional justification for reimposing such a restriction.
B. Employer-Notification Provision
Special Condition 13 provides that, “[i]f [Love’s] employment requires the use of a
computer, [he] may use a computer in connection with the employment approved by the probation
officer, at [his] place of employment, provided he notif[ies] [his] employer of: (1) the nature of
[his] conviction; and (2) the fact that [his] conviction was facilitated by the use of the computer.”
App’x at 121. The condition further states that compliance with the notification requirement will
be confirmed by the Probation Office. In imposing this special condition, the district court
provided the following explanation: “[S]pecial condition 13 is necessary in order to protect the
public from further crimes of the defendant. Due to advancing technology, the Court notes it is
unlikely that upon the defendant’s release, he will encounter employment which does not somehow
allow him access to a computer.” Id. at 105–06. As conceded by the government, we conclude
that the district court plainly erred in imposing this special condition based only upon that
justification.
The imposition of occupational restrictions as a special condition of supervised release, like
the condition here, is limited to circumstances where “a reasonably direct relationship existed
between the defendant’s occupation, business, or profession and the conduct relevant to the offense
of conviction” and the “imposition of such a restriction is reasonably necessary to protect the
public because there is reason to believe that, absent such restriction, the defendant will continue
9 to engage in unlawful conduct similar to that for which the defendant was convicted.” U.S.S.G.
§ 5F1.5(a). Thus, in United States v. Jenkins, 854 F.3d 181 (2d Cir. 2017), we vacated the same
condition at issue here because “the relationship between the restrictions on [the defendant’s]
employment and [his] offense and circumstances [wa]s not readily apparent.” Id. at 195; see also
United States v. Ruff, 795 F. App’x 6, 8 (2d Cir. 2019) (summary order) (vacating an
employer-notification provision on plain error review where the defendant had “only ever held
employment in the food services industry” and there was “no evidence that he [had] used a
workplace computer to access child pornography”).
Here, as the government concedes, “the [district] court did not . . . explain what, if any,
connection existed between Love’s employment and his offense of conviction.” Appellee’s Br. at
32. Moreover, the additional reasoning necessary to demonstrate the individualized need for this
condition is not self-evident from the record. Betts, 886 F.3d at 202. In particular, there is nothing
in the record to indicate that Love used a work computer to commit his crime, nor is there any
evidence that his crime was connected to his occupation. Therefore, we conclude that the district
court failed to sufficiently explain why the imposition of Special Condition 13 was warranted in
light of the limitations set forth in Section 5F1.5(a) and our decision in Jenkins. Accordingly, we
vacate Special Condition 13 and remand the case for further consideration. Upon remand, as with
the one-device limitation imposed in Special Condition 12, the district court should articulate
additional individualized reasons if it determines that the reimposition of Special Condition 13 is
warranted.
10 * * *
We have considered Love’s remaining arguments and conclude that they are without merit.
Accordingly, we VACATE the judgment of the district court as to Special Conditions 12 (as to the
one-device limitation) and 13, AFFIRM the judgment in all other respects, and REMAND the
case for further proceedings consistent with this summary order as to Special Conditions 12 and
13.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court