United States v. Mark Porowicz

• Court: Court of Appeals for the Third Circuit
• Decided: July 6, 2022
• Docket: 21-2153
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________________

No. 21-2153 _______________________

UNITED STATES OF AMERICA

v.

MARK POROWICZ, Appellant _______________________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (District Court No. 2-18-cr-00137-01) Chief District Judge: The Honorable Juan R. Sanchez __________________________

Submitted Under Third Circuit L.A.R. 34.1 (a) June 14, 2022

Before: HARDIMAN, SMITH, and FISHER, Circuit Judges

(Filed: July 6, 2022)

__________________________

OPINION* __________________________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. SMITH, Circuit Judge.

Mark Porowicz pleaded guilty to distribution and attempted distribution,

receipt, and possession of child pornography. See 18 U.S.C. §§ 2252(a)(2),

(a)(4)(B). The District Court imposed a within-guideline sentence of 151 months

on each count, with the terms to run concurrently, followed by a 15-year term of

supervised release with standard and special conditions of supervision. Porowicz

appealed, arguing that his sentence was substantively unreasonable and that one

aspect of a special condition of supervised release violated his constitutional rights.

We will affirm the judgment imposing a 151-month sentence, but we will vacate

the challenged special condition and remand for further proceedings.1

Porowicz contends that his 151-month sentence, which was at the lower end

of the guideline range, is substantively unreasonable because the sentencing court

failed to give “appropriate and judicious consideration” to all of the sentencing

factors. Appellant’s Br. 19. We review for an abuse of discretion. United States

v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009). The transcript of the sentencing

hearing belies this argument. We conclude that the District Court did not err in

imposing the 151-month sentence.

1 The District Court exercised jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). 2 Porowicz also challenges for the first time the special condition of his

supervised release, which requires that he “participate in a sex offender program”

and while in treatment “submit to[, inter alia,] physiological testing, which may

include, but is not limited to, polygraph or other specific tests to monitor

compliance with supervised release and treatment conditions.”2 A7. Porowicz

claims this condition is vague because it does “not specify or limit the type of

physiological testing.” Appellant’s Br. 27. He also asserts that it is overbroad

because it permits the use of penile plethysmography (PPG),3 “which in this case

does not serve any statutory sentenc[ing] goals, and is not narrowly tailored, in

violation of Mr. Porowicz’s substantive due process rights.” Id. In addition,

Porowicz contends that “the broad condition here should be stricken under [18

U.S.C.] § 3583(d)(1).” Appellant’s Br. 34.

The Government highlights that Porowicz’s “sole complaint” is that “there

are no limits as to the type of ‘physiological testing’ that is permitted.” Appellee’s

Br. 31. It concedes that the special condition “should be amended to exclude PPG

testing, which the government did not request and the court did not specify.” Id. at

28. Porowicz acknowledges that this concession resolves the “due process and

2 Because this is the first time that Porowicz has objected to this condition, we review for plain error. Fed. R. Crim. P. 52(b). See United States v. Olano, 507 U.S. 725, 732–735 (1993). 3 See United States v. Weber, 451 F.3d 552, 561–62 (9th Cir. 2006) (discussing the nature of PPG testing). 3 overbreadth concerns,” but asserts that modifying the condition as the Government

proposes does not address the issue of vagueness.4 Appellant’s Reply 8.

Here, other than the polygraph testing that is mentioned, the special

condition completely fails to provide any information as to what physiological

testing might encompass. Nor does the record supply any information in this

regard, and the District Court made no findings pertaining to physiological testing.

We are left, then, to guess as to what testing Porowicz must submit to as part of his

sex offender treatment program. We need not determine, however, if this

condition is unconstitutionally vague 5 because the imposition of this condition,

without findings to support it, contravenes the directives of §§ 3583(d)(1) and (2).

Those statutory provisions mandate that conditions of supervised release must be

“reasonably related” to certain factors in § 3553 and must “involve[] no greater

deprivation of liberty than is reasonably necessary for the purposes” of

§§ 3553(a)(2)(B), (C), and (D). See 18 U.S.C. §§ 3583(d)(1) and (2); United

4 Porowicz has not objected to the condition of submitting to polygraph testing. See United States v. Lee, 315 F.3d 206, 209, 215 (3d Cir. 2003) (rejecting defendant’s contention that the special condition requiring the submission to polygraph testing was void for vagueness). For that reason, our analysis pertains only to any otherwise unspecified physiological testing. 5 See Lee, 315 F.3d at 214 (reiterating that “a condition of supervised release . . . is void for vagueness if it ‘either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application’”) (quoting United States v. Loy, 237 F.3d 251, 262 (3d Cir. 2001); see also United States v. Maloney, 513 F.3d 350, 357 (3d Cir. 2008). 4 States v. Pruden, 398 F.3d 241, 248–49 (3d Cir. 2005); see also United States v.

Holena, 906 F.3d 288, 291–292 (3d Cir. 2018).

Accordingly, we conclude that the District Court plainly erred by imposing

this condition to submit to unspecified physiological testing without explaining

how it satisfies § 3583(d)(2). Consistent with Pruden, we thus conclude that this

error “will inevitably affect [Porowicz’s] substantial rights” and that without

correction, this unauthorized condition will “seriously affect[] the fairness,

integrity, and reputation of the proceedings.” 398 F.3d at 251. We will therefore

vacate the special condition to the extent it permits otherwise undescribed

physiological testing. On remand, the District Court may conduct such further

proceedings as are warranted to consider the imposition of any other physiological

testing, except PPG testing. In all other respects, we will affirm the District

Court’s judgment.