United States v. Wood

Opinion

20-2713 United States v. Wood

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.

1 At a stated term of the United States Court of Appeals for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 3 New York, on the 13th day of May, two thousand twenty-one. 4 5 PRESENT: 6 JON O. NEWMAN, 7 MICHAEL H. PARK, 8 STEVEN J. MENASHI, 9 Circuit Judges. 10 _____________________________________ 11 12 UNITED STATES OF AMERICA, 13 14 Appellee, 15 16 v. 20-2713 17 18 ROBERT W. WOOD, 19 20 Defendant-Appellant. 21 22 _____________________________________ 23 24 25 FOR APPELLEE: Tiffany H. Lee, Assistant United States 26 Attorney, for James P. Kennedy, Jr., United 27 States Attorney for the Western District of 28 New York, Buffalo, NY. 29 30 FOR DEFENDANT-APPELLANT: Martin J. Vogelbaum, Federal Public 31 Defender’s Office, Western District of New 32 York, Buffalo, NY.

1 Appeal from the United States District Court for the Western District of New York (Geraci, 2 C.J.). 3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 4 DECREED that the judgment of the district court is AFFIRMED. 5 Defendant-Appellant Robert Wood appeals from a judgment entered on August 12, 2020, 6 following his guilty plea, convicting him of possession of child pornography, in violation of 7 18 U.S.C. §§ 2252A(a)(5)(B), (b)(2). Wood committed this crime while on supervised release 8 following a prior conviction for possession of child pornography. The district court (Geraci, C.J.) 9 sentenced him principally to 144 months’ imprisonment, to be served consecutive to a ten-month 10 term for violating his conditions of supervised release, followed by ten years’ supervised release. 11 On appeal, Wood argues that (1) his term of imprisonment is procedurally and 12 substantively unreasonable, (2) his computer monitoring condition is unconstitutionally vague, and 13 (3) the district court erred in ordering him to pay for the cost of computer monitoring and to 14 contribute to the costs of sex offender treatment and truth verification testing. We assume the 15 parties’ familiarity with the underlying facts, procedural history, and issues on appeal. 16 1. Procedural and Substantive Reasonableness 17 Wood challenges both the procedural and substantive reasonableness of his term of 18 imprisonment. “We review the procedural and substantive reasonableness of a sentence under a 19 deferential abuse-of-discretion standard.” United States v. Yilmaz, 910 F.3d 686, 688 (2d Cir. 20 2018) (citing United States v. Thavaraja, 740 F.3d 253, 258 (2d Cir. 2014)). “A sentence is 21 procedurally unreasonable if the district court fails to calculate (or improperly calculates) the 22 Sentencing Guidelines range, treats the Sentencing Guidelines as mandatory, fails to consider the

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1 § 3553(a) factors, selects a sentence based on clearly erroneous facts, or fails adequately to explain 2 the chosen sentence.” United States v. Smith, 949 F.3d 60, 66 (2d Cir. 2020) (internal quotation 3 marks omitted). “[O]ur review of a sentence for substantive reasonableness is particularly 4 deferential, and we will set aside only those sentences that are so shockingly high, shockingly low, 5 or otherwise unsupportable as a matter of law that allowing them to stand would damage the 6 administration of justice.” United States v. Muzio, 966 F.3d 61, 64 (2d Cir. 2020) (internal 7 quotation marks omitted). 8 Wood claims that the district court committed procedural error by failing to consider “his 9 abusive childhood and mental retardation as factors in mitigation.” Appellant’s Br. 13. We are 10 unpersuaded. This Court entertains “a strong presumption that the sentencing judge has 11 considered all arguments properly presented to h[im], unless the record clearly suggests 12 otherwise.” United States v. Fernandez, 443 F.3d 19, 29 (2d Cir. 2006), abrogated on other 13 grounds by Rita v. United States, 551 U.S. 338 (2007). “This presumption is especially forceful 14 when, as was the case here, the sentencing judge makes abundantly clear that []he has read the 15 relevant submissions and that []he has considered the § 3553(a) factors.” Id. Here, the district 16 court made clear that it had read the relevant submissions and considered the § 3553(a) sentencing 17 factors. See App’x at 136 (concluding that the 120-month sentence Wood requested would be 18 “[in]sufficient to meet the criteria for sentencing, which includes considering the seriousness of 19 the offense here, which is outrageous continuous conduct; your history and character; a sentence 20 that’s necessary to deter you and others from engaging in this type of activity in the future, but not 21 something that’s greater than necessary to accomplish the purpose of sentencing”). In addition,

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1 the district court discussed Wood’s misconduct at length and explained the basis for its sentence. 2 See id. at 131–37. We thus reject Wood’s claim of procedural error. 3 Wood’s contention that his sentence is substantively unreasonable likewise fails. The 4 district court reasonably explained why the upper limit of the 120-to-121-month Guidelines range 5 was insufficient based on “the seriousness of the offense here, which is outrageous continuous 6 conduct” that took place “after the defendant had been previously convicted of a similar offense.” 7 Id. at 134, 136. After describing Wood’s criminal history and misconduct at length, it concluded 8 that he is “a sick man” with “some serious, serious issues” and that it could not “do much 9 except . . . protect the community and protect children from [him] in the future.” Id. at 136. 10 Based on the need for deterrence and incapacitation, Wood’s sentence is not so “unsupportable as 11 a matter of law that allowing [it] to stand would damage the administration of justice.” Muzio, 12 966 F.3d at 64 (internal quotation marks omitted). 1 13 2. Computer Monitoring Condition 14 As a special condition of supervised release, the district court conditioned Wood’s use of 15 certain electronic devices on his participation in a computer and internet monitoring program. 16 App’x at 150. As part of that program, Probation can search Wood’s devices whenever it detects 17 “impermissible/suspicious activity.” Id. 2 Wood claims that this condition “provides inadequate

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Wood was initially convicted of possessing child pornography in 2011. Within a year of completing his term of imprisonment in 2015, Wood violated his conditions of supervised release and was sentenced to 90 days in jail. Despite these warnings, Wood committed the offense at issue here just a few years later, less than a quarter of the way into his term of supervised release. In light of Wood’s admitted compulsion to consume child pornography, his participation in a residential sex offender treatment program may be advisable. See 18 U.S.C. § 3621(f)(1)(B) (providing for “residential sex offender treatment programs to provide treatment to sex offenders who volunteer for such programs”).

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The district court’s written judgment differs slightly from its oral pronouncement on this point.

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1 guidance—inviting inadvertent but consequential transgressions by Wood, and arbitrary 2 enforcement by Probation—and thereby violates due process.” Appellant’s Br. 23. Wood failed 3 to raise this objection below, so we review only for plain error. See United States v. Green, 4 618 F.3d 120, 122 (2d Cir. 2010). 5 We recently rejected a similar challenge in United States v. Vietor, 806 F. App’x 60, 63 6 (2d Cir. 2020). Evaluating an identically worded condition, we noted that “the search authority 7 granted to probation is not without limitation.” Id. “Under the condition’s terms, probation ‘is 8 authorized to install any application as necessary to surveil all activity on computer(s),’ but 9 probation is notified only of ‘impermissible/suspicious activity or communications occurring on 10 such computer,’ not of all activity, and searches of the computer are authorized only ‘[a]s triggered 11 by impermissible/suspicious activity.’” Id. Additionally, “[m]onitoring and searches are 12 required to be ‘designed to avoid, as much as possible, reading any privileged information or any 13 private material that is not illegal or reasonably likely to lead to illegal material or evidence related 14 to illegal activity.’” Id. Thus, “[a]lthough the condition does not clarify the bounds of 15 ‘suspicious’ activity, beyond that likely to lead to illegal material, any error is not ‘clear or obvious’ 16 in the context of our past cases.” Id. (quoting United States v. Marcus, 560 U.S. 258, 262 (2010)).

Specifically, the district court stated both orally and in writing that Probation shall be notified of impermissible or suspicious activity and that Wood must submit to Probation’s examinations of his devices, but it clarified only in writing that Probation may conduct such examinations only “[a]s triggered by” the surveillance program’s detection of “impermissible/suspicious activity.” App’x at 139, 150. Wood raises no concern with this discrepancy, presumably because he benefits from the version as written. Cf. United States v. Rosario, 386 F.3d 166, 169 (2d Cir. 2004) (noting that the defendant did not challenge a modification in the written judgment that “added a limitation that inured to [his] benefit and afforded him no basis on which he could complain”).

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1 Wood asserts that “Vietor is wrongly decided” and “a summary order having no 2 precedential effect.” Reply Br. 6. “Although we decided [Vietor] by nonprecedential summary 3 order, rather than by opinion, our ‘[d]enying summary orders precedential effect does not mean 4 that the court considers itself free to rule differently in similar cases.’” United States v. Payne, 5 591 F.3d 46, 58 (2d Cir. 2010) (quoting Order dated June 26, 2007, adopting 2d Cir. Local R. 6 32.1). We appropriately rely on Vietor because it is “particularly apposite.” Agosto v. N.Y.C. 7 Dep’t of Educ., 982 F.3d 86, 101 n.8 (2d Cir. 2020). Moreover, Vietor shows, at a minimum, that 8 any error by the district court would not be “clear or obvious.” Marcus, 560 U.S. at 262 (citation 9 omitted); cf. United States v. Irving, 554 F.3d 64, 78 (2d Cir. 2009) (“An error is ‘plain’ if the 10 ruling was contrary to law that was clearly established by the time of the appeal.”). 11 3. Cost-Contribution Conditions 12 Finally, Wood objects to the special conditions mandating that he pay for computer 13 monitoring and contribute to the costs of sex offender treatment and truth verification testing. 14 According to Wood, “[t]he District Court should not have imposed these requirements . . . because 15 it did not make a finding that funds were available for him to contribute to the cost of these services, 16 and because it did not clarify that the amount of Wood’s contributions, if any, would be subject to 17 judicial review.” Appellant’s Br. 24. 18 Wood’s challenge to the requirement that he “contribute to” the costs of sex offender 19 treatment and truth verification testing is foreclosed by United States v. Rasheed, 981 F.3d 187 (2d 20 Cir. 2020). In that case, we “construe[d] the cost-contribution conditions to provide that the 21 requirement that Rasheed contribute to the cost of services rendered is contingent upon a finding 22 that he is able to pay such a contribution.” Id. at 198–99. Here, we likewise construe the special

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1 conditions mandating that Wood “contribute to” the cost of treatment programs and truth 2 verification testing as contingent on his ability pay. 3 Finally, Wood’s challenge to the cost of the monitoring program is not ripe for review. 4 Wood is not scheduled to be released from prison until February 16, 2030. We have noted that 5 the technology used for such monitoring is subject to change and thus, we have found challenges 6 to computer-monitoring conditions that will not be imposed for several years to be unripe. See, 7 e.g., United States v. Balon, 384 F.3d 38, 46 (2d Cir. 2004). The cost of such monitoring 8 programs years in the future is similarly contingent on rapidly changing technology and is thus 9 unripe for review. Wood’s ability to pay for computer monitoring also depends on his future 10 financial position, which is similarly subject to change and unripe for review. This is especially 11 true considering that he is required to work a full-time job upon release. See, e.g., United States 12 v. Leone, 813 F. App’x 665, 670 (2d Cir. 2020) (“At present, we do not know what the cost of 13 participating in the monitoring program will be when Leone is released, whether Probation will 14 hold Leone responsible for paying those costs, whether Leone will have the financial means to 15 pay, and whether the district court will require him to pay if he says that he cannot. If it proves 16 to be the case that the district court requires an indigent Leone to pay to participate in monitoring 17 services, he may mount a challenge at that time.”); Vietor, 806 F. App’x at 63–64 (“[A]t this 18 juncture, it is unclear what the costs of the monitoring program will be and whether Vietor will be 19 able to afford those costs upon her release from prison. The issue is therefore not ripe for 20 review.”). In sum, Wood’s challenge to the requirement that he pay for computer monitoring 21 years from now is unripe because it “depends upon contingent future events that may not occur as

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1 anticipated, or indeed may not occur at all.” United States v. Traficante, 966 F.3d 99, 106 (2d 2 Cir. 2020) (internal quotation marks omitted). 3 We have considered Wood’s remaining arguments and conclude that they are without 4 merit. For the foregoing reasons, we AFFIRM the district court’s judgment.

5 FOR THE COURT: 6 Catherine O’Hagan Wolfe, Clerk of Court