18-1962-cr United States v. Traficante
United States Court of Appeals For the Second Circuit
August Term 2019
Argued: October 25, 2019
Decided: July 17, 2020
No. 18-1962
UNITED STATES OF AMERICA,
Appellee,
v.
THOMAS TRAFICANTE,
Defendant-Appellant.
Appeal from the United States District Court for the Western District of New York No. 18-cr-6034, David G. Larimer, Judge. Before: PARKER, SULLIVAN, Circuit Judges, AND FAILLA, District Judge. ∗
Defendant-Appellant Thomas Traficante pleaded guilty to cyberstalking and distribution of a controlled substance. He now challenges the imposition of an above-Guidelines term of imprisonment and of a once-standard condition of supervised release that the Second Circuit subsequently held was impermissible. We conclude that the district court did not err in imposing a 48-month term of imprisonment, which was justified as a variance. We further conclude that Traficante’s challenge to the supervised release condition is moot because the Western District of New York’s standing order permissibly modifies the applicable condition. Accordingly, we AFFIRM the sentence and judgment as modified by the Western District of New York’s standing order.
AFFIRMED.
MICHELLE ANDERSON BARTH, Law Office of Michelle Anderson Barth, Burlington, Vermont, for Defendant-Appellant Thomas Traficante.
KATHERINE A. GREGORY, Assistant United States Attorney (Monica J. Richards, Assistant United States Attorney, on the brief), for James P. Kennedy, Jr., United States Attorney for the Western District of New York, Buffalo, New York, for Appellee United States of America.
RICHARD J. SULLIVAN, Circuit Judge:
Defendant-Appellant Thomas Traficante appeals from a judgment of
conviction entered on June 28, 2018 in the United States District Court for the
Western District of New York (Larimer, J.) following his guilty plea to one count
∗ Judge Katherine Polk Failla, of the United States District Court for the Southern District of New York, sitting by designation.
2 of cyberstalking in violation of 18 U.S.C. §§ 2261A(2)(B) and 2261(b)(5) and one
count of distribution of a controlled substance in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(C). The district court imposed a sentence of 48 months’ imprisonment to be
followed by a three-year term of supervised release.
On appeal, Traficante challenges, among other things, the district court’s
imposition of an above-Guidelines term of incarceration and of a once-standard
“notification of risk” condition of supervised release, which the Western District
of New York has since modified by standing order. We affirm the district court’s
imposition of the above-Guidelines sentence as a permissible variance that was
both procedurally and substantively reasonable. And while we agree with
Traficante that the previous risk condition can no longer be imposed on him
following our decision in United States v. Boles, 914 F.3d 95, 111–12 (2d Cir. 2019),
his challenge to that condition is moot in light of the standing order. We also find
that remand for resentencing is unnecessary because the Western District of New
York’s standing order permissibly clarifies the risk condition applicable to his
supervised release without imposing any additional burden on Traficante.
Further, any vagueness challenge or challenge to the contemplated delegation of
authority to the probation officer in the clarified condition is not ripe. We therefore
3 affirm the district court’s judgment, as modified by the standing order.
I. BACKGROUND
In the fall of 2017, Traficante repeatedly stalked and threatened his ex-
girlfriend, a student at SUNY Geneseo. In addition to digitally surveilling her
from his home, Traficante sent numerous threatening, anonymous text messages
and made repeated anonymous calls to the victim and her sorority housemates.
He also falsely advertised on the Internet that the victim was a prostitute by posing
as her and providing her contact information, hacked several of the victim’s online
accounts and used that access to further harass her, and shot out the windows of
her parents’ car and home with a BB gun. Traficante also mailed controlled
substances, including cocaine and MDMA, to the victim without her knowledge,
after which he anonymously contacted university police to inform them of her
possession of illegal narcotics.
On December 20, 2017, Traficante was arrested at his home, where law
enforcement found a loaded AR-15 firearm, two airsoft rifles, ammunition, and
shooting targets. In the course of the investigation, as detailed in the U.S.
Probation Office’s Presentence Investigation Report (“PSR”), law enforcement also
learned that Traficante had engaged in similar threatening conduct toward
4 another ex-girlfriend after their relationship ended.
In March 2018, Traficante waived indictment and pleaded guilty to a two-
count Information charging him with cyberstalking in violation of 18 U.S.C.
§§ 2261A(2)(B) and 2261(b)(5), and distribution of a controlled substance in
violation of 21 U.S.C. § 841(a)(1). The parties stipulated in the plea agreement that
the advisory United States Sentencing Guidelines (“Guidelines”) range was 30 to
37 months’ imprisonment, based on an offense level of 19 and a criminal history
category of I. Each party reserved the right to argue for a sentence outside the
Guidelines range and the right to relay to the court any information deemed
relevant to a proper sentencing determination. At sentencing, the district court
imposed an above-Guidelines sentence of 48 months’ imprisonment, followed by
a three-year term of supervised release. The district court described its sentence
as both “a variance and also departure,” App’x at 66, stating that Traficante’s
extraordinary conduct warranted a variance as well as an increase in his criminal
history category from I to III.
In addition, the district court placed a number of conditions on Traficante’s
supervised release, including the once-standard risk condition that gave
Traficante’s probation officer discretion both to determine whether Traficante
5 posed a risk to others and, if so, to require him to notify such persons about that
risk. Id. at 76 (“If the probation officer determines that you pose a risk to another
person . . . the probation officer may require you to notify the person about the
risk . . . .”).
On appeal, Traficante primarily argues that the district court erred when it
increased his criminal history category from I to III based on related conduct and
without adequate explanation. He also cites our decision in Boles, 914 F.3d at 111–
12, to challenge the standard risk condition of his supervised release.
II. DISCUSSION
A. The District Court Acted Reasonably When It Imposed An Above-Guidelines Sentence
“We review a sentence for procedural and substantive reasonableness
under a ‘deferential abuse-of-discretion standard.’” United States v. Thavaraja, 740
F.3d 253, 258 (2d Cir. 2014) (quoting Gall v. United States, 552 U.S. 38, 41 (2007)).
“A district court commits procedural error when it fails to calculate (or improperly
calculates) the Sentencing Guidelines range, treats the Sentencing Guidelines as
mandatory, fails to consider the [18 U.S.C.] § 3553(a) factors, selects a sentence
based on clearly erroneous facts, or fails adequately to explain the chosen
sentence.” United States v. Genao, 869 F.3d 136, 140 (2d Cir. 2017) (internal
6 quotation marks omitted). A sentence is substantively unreasonable “only in
exceptional cases where the trial court’s decision cannot be located within the
range of permissible decisions.” United States v. Cavera, 550 F.3d 180, 189 (2d Cir.
2008) (internal quotation marks omitted).
Both during the sentencing and in the written statement of reasons that
followed, the district court characterized the sentence it imposed as both a
variance and a departure under the Guidelines. The district court first set forth
the justification for a variance, explaining the factors to be considered under 18
U.S.C. § 3553(a) and concluding that this was an “atypical case” in which “the
conduct significantly differs from the norm [such] that the Court can consider a
variance.” App’x at 63. In particular, the district court relied on facts set forth in
the PSR, to which Traficante did not object. As the district court explained, the
PSR explicitly described past criminal conduct in which Traficante stalked a high
school girlfriend and exhibited behavior substantially similar to the instant
offense, including posting her phone number to a prostitution website, sending
her controlled substances without her knowledge and then notifying law
enforcement, and hacking her social media accounts. The PSR also identified
aggravating aspects of the instant offense, including that Traficante continued to
7 contact the victim after police directed him to stop, and that a search of Traficante’s
home revealed, among other things, a loaded AR-15 firearm and ammunition. The
district court then determined that the past criminal conduct and the instant
offense were “extraordinary and exceptional” such that a variance above the
Guidelines range of 30 to 37 months was appropriate. Id. at 64.
On the record before us, we find no procedural error with respect to the
variance. The district court adequately explained the reasons for that variance
pursuant to the factors outlined in § 3553(a). Among other things, the court
emphasized the “horrendous” nature of the offense, and in considering that the
“[s]entence must reflect the seriousness of the offense,” explained that the offense
was “about as serious as they get” and required “just punishment.” Id. at 61–62.
Further, the court detailed its view that the sentence should deter Traficante as
well as others from engaging in similar behavior, noting that Traficante’s conduct
continued “not for a day or two” but instead was “repeated, repeated conduct”
that he chose not to stop. Id. at 62. And since the district court made it clear on
the record and in the written statement of reasons that the above-Guidelines
sentence was justified as both a variance and departure, we need not address
whether a departure was warranted pursuant to sections 4A1.3 and 5K2.0 of the
8 Guidelines. See, e.g., United States v. Mandell, 752 F.3d 544, 553 (2d Cir. 2014) (“If
we identify procedural error in a sentence, but the record indicates clearly that the
district court would have imposed the same sentence in any event, the error may
be deemed harmless, avoiding the need to vacate the sentence and to remand the
case for resentencing.” (internal quotation marks omitted)); see also United States v.
Pristell, 941 F.3d 44, 56 (2d Cir. 2019) (upholding sentence “even if the application
of [an] enhancement was inappropriate” where “the district court noted on the
record” that it would impose the same sentence regardless of which of two
contested Guidelines ranges applied).
Having determined that the sentence was procedurally reasonable, we
likewise reject Traficante’s conclusory and tepid assertion that his 48-month
sentence was “likely . . . substantively unreasonable.” Traficante’s Br. at 36–37.
Taking “into account the totality of circumstances” evidenced by the record,
including Traficante’s conduct, prior history, and the aggravating factors noted in
the PSR, it can hardly be argued that a sentence of 48 months was outside the range
of permissible decisions available to the district court. Cavera, 550 F.3d at 190. We
note that courts have imposed and upheld comparable above-Guidelines
sentences in cases involving similar conduct. See, e.g., United States v. Waldman,
9 807 F. App’x 77, 78–80 (2d Cir. 2020) (affirming above-Guidelines sentence of fifty
months for cyberstalking as procedurally reasonable); United States v. Sayer, 748
F.3d 425, 436–37 (1st Cir. 2014) (affirming sixty-month sentence, which was
fourteen months above Guidelines range, for cyberstalking and identity theft). In
light of such cases, and given the seriousness of Traficante’s conduct, including
the fact that he previously engaged in similar stalking and threatening behavior,
we cannot say that Traficante’s sentence is “shockingly high . . . or otherwise
unsupportable as a matter of law.” United States v. Rigas, 583 F.3d 108, 123 (2d Cir.
2009).
B. Traficante’s Challenge To The “Notification of Risk” Condition Is Moot In Light Of The Western District’s Standing Order
Traficante challenges the district court’s imposition of the then-standard
condition of supervised release, which authorized the supervising probation
officer to require a supervisee to notify individuals if the probation officer
determined that the supervisee posed a risk to the safety of such persons. In United
States v. Boles, which was decided after Traficante was sentenced, we held that an
identical risk condition was impermissibly vague and gave too much discretion to
probation officers. 914 F.3d at 112. In Boles, we “remand[ed] to the district court
10 to clarify the scope” of the condition, id., and Traficante seeks the same relief here.
Responding to Traficante’s challenge to the risk condition, the government
initially conceded that a limited remand was necessary to address the concerns
raised in Boles. However, since we announced our decision in Boles and the parties
submitted their briefs on appeal, the Western District of New York issued a
standing order that amends the risk condition in light of that decision. See In re:
United States v. Boles (W.D.N.Y. Mar. 22, 2019),
https://www.nywd.uscourts.gov/sites/nywd/files/PTPR-2019-
AmendedBolesStandOrd.pdf (“March 2019 Standing Order”). Specifically, the
standing order amends all judgments in the district to replace the prior standard
risk condition with the following new condition:
If the court determines in consultation with your probation officer that, based on your criminal record, personal history and characteristics, and the nature and circumstances of your offense, you pose a risk of committing further crimes against another person (including an organization), the probation officer may require you to notify the person about the risk and you must comply with that instruction. The probation officer may contact the person and confirm that you have notified the person about the risk.
Id.
Though the parties agree that the revision renders Traficante’s challenge to
the previous condition moot, they nevertheless dispute whether the standing
11 order itself passes muster under Boles. As noted in a letter filed under Federal Rule
of Appellate Procedure 28(j), the government contends that a limited remand is no
longer appropriate in light of the revision. Traficante disagrees, arguing that
remand is still necessary because (1) the standing order imposes on him a new
condition, without notice and an opportunity to be heard, in violation of the
Federal Rules of Criminal Procedure and due process principles; and (2) the
revised condition continues to be impermissibly vague. We address each
argument in turn.
1. Resentencing Is Not Required Since The Standing Order Imposes No Obligations On Traficante
With respect to Traficante’s first argument, we hold that vacatur and
remand for resentencing is unnecessary. While the standing order removes and
modifies the previously existing standard risk condition, it does not alter
Traficante’s sentence by imposing new burdens upon him. The order instead
clarifies that any obligation to notify at-risk individuals is wholly contingent on a
subsequent determination by the district court that the supervisee poses a specific
risk to such persons. Given the conditional nature of the revised condition, the
standing order can have no impact on Traficante unless and until the district court
makes such a finding. In this regard, the order merely reiterates the existing
12 procedures for adding conditions if and when they become necessary during
terms of supervised release and therefore comports with Boles’s directive that
courts “clarify the scope of the ‘risk’ condition.” 914 F.3d at 112.
Our precedents do not require resentencing under such circumstances.
Federal Rule of Criminal Procedure 43(a)(3) requires a defendant to be present at
sentencing. See Fed. R. Crim. P. 43(a)(3). In adhering to this rule, we have
generally held that where there is a “variation between an oral pronouncement of
sentence and a subsequent written judgment, the oral pronouncement controls,
and any burdensome punishments or restrictions added in the written judgment must
be removed.” United States v. Rosario, 386 F.3d 166, 168 (2d Cir. 2004) (internal
citations and footnotes omitted) (emphasis added). Similarly, in United States v.
Thomas, we found that a special condition imposed for the first time in the written
judgment and conviction violated Rule 43(a), since the condition “place[d]
additional burdens on the defendant that are neither necessary to nor a foreseeable
result of the imposition of supervised release.” 299 F.3d 150, 155 (2d Cir. 2002)
(emphasis added).
But unlike the situation in Thomas, the standing order here does not impose
additional burdens or restrictions on Traficante. It simply announces what is
13 already true under the law – namely, that the district court can, in the future,
determine that the supervisee poses a risk to the safety of other persons and
require him to notify such persons. As a general matter, a court’s ability to add
conditions of supervised release is well-settled. See 18 U.S.C. § 3583(e)(2)
(providing that a court may, upon considering applicable statutory factors,
“enlarge the conditions of supervised release, at any time prior to the expiration
. . . of the term” consistent with the Federal Rules of Criminal Procedure); United
States v. Johnson, 529 U.S. 53, 60 (2000) (“The trial court, as it sees fit, may modify
an individual's conditions of supervised release.”); United States v. Meyers, 426 F.3d
117, 129–30 (2d Cir. 2005) (“Facts and relationships may change over the years, and
the district court may wish to re-examine the [supervised release] conditions . . .
when more facts will be clear.”). And because the standing order provides that
the court is to consider the supervisee’s “personal history and characteristics, and
the nature and circumstances of [the] offense,” March 2019 Standing Order, as well
as the potential danger to others before making a risk determination, a notification
requirement flowing from that finding would seem to be consistent with the
requirement that courts consider relevant 18 U.S.C. § 3553(a) sentencing factors
when making modifications. See United States v. Parisi, 821 F.3d 343, 347 (2d Cir.
14 2016). Further, if the district court were to make such a risk finding and impose
the additional burden of notification on the supervisee, such an imposition “would
. . . enlarge” the condition, in which case the supervisee “would be entitled to a
hearing” under Federal Rule of Criminal Procedure 32.1(c). United States v.
Murdock, 735 F.3d 106, 114 (2d Cir. 2013).
Because the standing order “amounts to a clarification” acknowledging the
possibility of future conditions that might be added “regardless of [the] present
sentence,” it “does not impose . . . any new obligations” beyond what the law
already allows. United States v. Jacques, 321 F.3d 255, 265–66 (2d Cir. 2003). As a
result, remand for resentencing under Rule 43 is unwarranted.
2. Traficante’s Vagueness Challenge To The Revised Risk Condition, As Well As Any Potential Delegation Challenge, Is Not Ripe.
Having failed in his request for a resentencing under Rule 43, Traficante
next argues that the WDNY’s standing order is impermissibly vague. Specifically,
Traficante contends that the condition “contains terms virtually identical to those
rejected as unconstitutionally vague” – such as “personal history,”
“characteristics,” and “risks” – in a condition reviewed by the Seventh Circuit in
United States v. Bickart, 825 F.3d 832, 841–42 (7th Cir. 2016). Traficante’s Fed. R.
App. P. 28(j) Letter at 2. But whatever the merits of this argument – and we remain
15 skeptical – we need not address it here, since Traficante’s vagueness challenge is
clearly not ripe.
“Ripeness is a constitutional prerequisite to [the] exercise of jurisdiction by
federal courts.” United States v. Fell, 360 F.3d 135, 139 (2d Cir. 2004) (internal
quotation marks omitted). And “[b]ecause the ripeness doctrine is drawn both
from Article III limitations on judicial power and from prudential reasons for
refusing to exercise jurisdiction, the court can raise it sua sponte, and, indeed, can
do so for the first time on appeal.” Thomas v. City of New York, 143 F.3d 31, 34 (2d
Cir. 1998) (internal quotation marks omitted). The doctrine “prevents a federal
court from entangling itself in abstract disagreements over matters that are
premature for review because the injury is merely speculative and may never
occur.” United States v. Balon, 384 F.3d 38, 46 (2d Cir. 2004) (internal quotation
marks and brackets omitted). “In addressing any and all ripeness challenges,” we
must determine “whether (1) the issues are fit for judicial consideration, and (2)
withholding of consideration will cause substantial hardship to the parties.” Id.
(internal quotation marks and brackets omitted). “[U]nlike a purely legal question
that is eminently fit for judicial review,” factual disputes “beyond the prescience
of [the] court” are “subject to abstract disagreements over matters that are
16 premature for review.” Id. (internal quotation marks omitted). Thus, we have
long recognized that “[a] claim is not ripe if it depends upon ‘contingent future
events that may not occur as anticipated, or indeed may not occur at all.’” Nat'l
Org. for Marriage, Inc. v. Walsh, 714 F.3d 682, 687 (2d Cir. 2013) (quoting Thomas v.
Union Carbide Agric. Prods. Co., 473 U.S. 568, 580–81 (1985)).
Although Traficante’s vagueness challenge clearly raises a question of law,
the inquiry, at this point, is surely just an abstraction. Because the standing order
merely restates what courts are already authorized to do, Traficante’s behavior is
no more constrained by the wording of the order than it is by the ever-present
possibility that the district court could modify the terms of his release as necessary.
If the court determines that Traficante poses a specific risk and enlarges the
condition by requiring him to notify a third party, he can raise any vagueness
challenge at the Rule 32.1 hearing accompanying the modification. But chances
are that, by the time the court makes a finding that Traficante “pose[s] a risk of
committing further crimes against another person [or] organization,” March 2019
Standing Order, and directs him to provide notice specifically to the at-risk person
or entity – thereby imposing an enlarged condition – the condition will no longer
be vague at all.
17 And while it could be argued that the standing order contemplates vesting
the probation officer with a degree of discretion that is inconsistent with our
holding in Boles, such a challenge would likewise be unripe, since the ostensibly
improper delegation may never actually occur. 1 First, the supposed delegation is
conditioned on the district court finding, during Traficante’s term of supervised
release, that he poses a risk of committing further crimes against another person.
That might not occur. Second, even if it does, the district court still might directly
order Traficante to notify the at-risk individual, or alternatively, order the
probation officer to require Traficante to so notify the potential victims. In either
scenario, the probation officer would lack discretion over whether to impose a
1 Although Traficante conceded during oral argument that the standing order appropriately addresses Boles’s concern about the “unfettered discretion” that the previous condition provided to the probation officer, see Oral Argument at 11:34–44; 12:17–26, defendants in several other cases before this Court have argued that the revised condition still affords too much discretion to probation officers, suggesting that the condition impermissibly leaves the probation officer with discretion over “whether” to require notification – in essence, empowering the officer to ignore the judge’s specific finding that the supervisee poses a risk of committing further crimes against others. See, e.g., United States v. Cotto, No. 18-2970 (2d Cir. Nov. 15, 2019); United States v. MacCallum, No. 18-2160 (2d Cir. Dec. 4, 2019); United States v. Dill, No. 19-268 (2d Cir. Dec. 10, 2019); United States v. Jackson, No. 18-3732 (2d Cir. Jan. 14, 2020); United States v. Frye, No. 18- 3849 (2d Cir. Feb. 3, 2020); United States v. DeCapua, No. 19-216 (2d Cir. Feb. 4, 2020); United States v. Whitaker, No. 19-1081 (2d Cir. Mar. 4, 2020); United States v. Rasheed, No. 18-3479 (2d Cir. May 7, 2020); United States v. Birkedahl, No. 19-2304 (2d Cir. June 2, 2020); United States v. Villafane-Lozada, No. 19-2098 (2d Cir. June 3, 2020).
18 notification obligation on Traficante. The allegedly impermissible delegation
would therefore never have materialized.
Whether couched as a vagueness challenge or a delegation challenge,
Traficante’s argument clearly “depends upon ‘contingent future events that may
not occur as anticipated, or indeed may not occur at all.’” Nat'l Org. for Marriage,
714 F.3d at 687 (quoting Thomas, 473 U.S. at 580–81). As a result, Traficante will
not endure any hardship, much less a substantial one, by the Court’s refusal to
parse the language of a standing order that merely reserves to the district court the
power to modify supervised release conditions in the future – powers that it
already has under the law. See 18 U.S.C. § 3583(e)(2). Accordingly, we decline to
reach Traficante’s vagueness challenge, as well as any delegation challenge, as
unripe.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court, as
modified to the extent discussed herein by the Western District’s standing order.