United States v. Shwaryk ( 2011 )

10-3752
United States v. Shwaryk
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
THIS COURT’S LOCAL RULE 32.1.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. 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 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
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 21st day of November, two thousand eleven,
Present: JOSEPH M. McLAUGHLIN,
ROSEMARY S. POOLER,
BARRINGTON D. PARKER,
Circuit Judges.
_____________________________________________________
UNITED STATES OF AMERICA,
Appellee,
-v- 10-3752
KEVIN SHWARYK,
Defendant-Appellant.
Appearing for Appellee: Elizabeth S. Riker, Lisa M. Fletcher (Assistant United States
Attorneys, of counsel) for Richard S. Hartunian, United States
Attorney for the Northern District of New York.
Appearing for Appellant: James P. Egan (on brief), Lisa A. Peebles, Federal Public
Defender, Syracuse, New York.
Appeal from the United States District Court for the Northern District of New York
(Mordue, J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.
Petitioner Kevin Shwaryk pleaded guilty to one count of possessing child pornography in
violation of 18 U.S.C. §2252A. He was sentenced principally to 87 months’ imprisonment and
ten years’ supervised release. Petitioner now appeals from the district court’s September 15,
2010, order modifying the of the terms of his supervised release. On appeal, petitioner asserts the
district court erred in modifying his supervised release to include two additional conditions
banning (1) adult pornography as defined in 18 U.S.C § 2256(2) and (2) computer usage, if
found to be contraindicated by his treatment provider. Petitioner also challenges the district
court’s failure to explain any of its reasoning or make any findings of fact in support of the
modification. We assume the parties’ familiarity with the underlying facts, procedural history,
and specification of issues for review.
The government contends on appeal that there was no error in the district court’s
imposition of the modification and if there was such error, it was waived or forfeit. The
government also contends the district court was not required to make any findings of fact in
support of the modification. The latter argument is completely without merit. While it is true that
the statute only explicitly requires a district court to “state in open court the reasons for its
imposition of the particular sentence” at the time of sentencing, 18 U.S.C. § 3553(c), to suggest
that a district court may evade this requirement when modifying the post-release supervision part
of the sentence under Section 3583(e)(2) is insupportable. 18 U.S.C. § 3583(e)(2)
First, Section 3583(e)(2) itself requires that a court consider certain statutory factors
before modifying the conditions of post-release supervision. We have also held that “[a] district
court may impose special conditions of supervised release to the extent that they are ‘reasonably
related’ to (i) the nature and circumstances of the offense and the history and characteristics of
the defendant, and (ii) the purposes of sentencing, including the need to afford adequate
deterrence, to protect the public from further crimes of the defendant, and to provide the
defendant with needed training or treatment.” United States v. Germosen, 139 F.3d 120, 131 (2d
Cir. 1998) (citing U.S.S.G. § 5D1.3(b), 18 U.S.C. § 3553(a)(2), and 18 U.S.C. § 3583(d)). A
defendant is entitled to reasoning on the record which would inform him and his counsel whether
the special conditions of his supervised release comport with the requirements of the statute and
our case law. This is no less true when the condition is imposed as a modification than when it is
originally imposed. It was error for the district court to have done otherwise.
That the district court did not make its reasons for the modifications in this case clear on
the record avails petitioner to the extent that we find his arguments are not forfeit or waived
though he did not make a specific objection. Any objection petitioner may have had would have
arisen from the failure of the modifications to comport with Section 3583(e)(2) and our case law
interpreting its commands. He could not have been expected to formulate an objection to
reasoning he did not (and still does not) know. Here, the petitioner refused to consent to the
modifications. He requested a hearing to contest the modifications and, at the hearing, noted his
objection to any modification. Having made a broad objection was sufficient in these
circumstances, and the arguments he now raises were not then waived or forfeit.
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Petitioner’s objections to the modifications, however, remain unavailing, because though
it is error for a district court to fail to explain its reasoning in these circumstances, the error is
harmless where the reasons for the special conditions are “self-evident in the record.” United
States v. Balon, 384 F.3d 38, 41 n.1 (2d Cir. 2004). This is such a case, at least as to petitioner’s
challenge to the adult pornography ban condition of his supervised release. First, our circuit has
broadly held that “[w]ith regard to supervised release, this ‘conditional liberty’ [to which those
under supervised release are subject] may include, inter alia, a prohibition against possession of
pornographic matter.” United States v. Carlton, 442 F.3d 802, 810 (2d Cir. 2006); see also
United States v. Cabot, 325 F.3d 384, 385 (2d Cir. 2003) (upholding a condition of supervised
release forbidding possession of pornographic material). We have also upheld conditions
banning adult pornography in situations analogous to petitioner’s. See United States v. Simmons,
343 F.3d 72 (2d. Cir. 2003). On the record before us, it is clear that petitioner acted in sexually
deviant ways with regards to both minors and adults, and that he did so in a manner involving
making as well as viewing pornographic videotapes. It is apparent from the record that the
special condition banning adult pornography bore the reasonable relationship required by our
law to the nature and circumstances of the offense and to the history and characteristics of the
defendant, as well as to deterrence, protection of the public, and the treatment of petitioner
himself. Germosen, 139 F.3d at 131. It is also apparent that this condition imposes no greater
restraint on liberty than is reasonably necessary to accomplish sentencing objectives. Id. We
accordingly uphold the adult pornography condition of petitioner’s supervised release.
Finally, petitioner’s challenge to the special condition which would enable the district
court to ban him from computer usage if it was contraindicated by his treatment provider is not
yet ripe for review. “The mere possibility of future injury, unless it is the cause of some present
detriment, does not constitute [the requisite] hardship. . . .Generally, a challenge lacks ripeness if
it concerns abstract regulations or if it presents issues that might never arise.” United States v.
Johnson, 446 F.3d 272, 278-79 (2d Cir. 2006) (emphasis and alteration in original) (internal
quotation marks omitted). Petitioner’s treatment providers may never make the challenged
determination, and the district court may never impose the ban. It is, accordingly, unripe. We do
not express a view as to whether such a ban would be upheld in light of United States v. Sofsky,
in which we struck down a condition of supervised release forbidding a defendant from use of a
computer because it “inflict[ed] a greater deprivation on [his] liberty than [was] reasonably
necessary. ” 287 F.3d 122, 126 (2d Cir. 2002). We hold only that at this juncture such a
challenge is not yet ripe.
We have examined the remainder of petitioner’s arguments and find them to be without
merit.
Accordingly, the judgment of the district court hereby is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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