United States v. Owad , 363 F. App'x 789 ( 2010 )

08-6182-cr
United States v. Owad
UNITED STATES COURT OF APPEALS
F OR T HE S ECOND C IRCUIT
SUMMARY ORDER
R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS C OURT ’ S L OCAL R ULE 32.1.1.
W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS C OURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX 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 3 rd day of February, two thousand and ten.
Present: RICHARD C. WESLEY,
GERARD E. LYNCH
Circuit Judges,
MARK R. KRAVITZ,
District Judge. *
________________________________________________
UNITED STATES,
Appellee,
- v. - (08-6182-cr)
CHRISTINE OWAD,
Defendant-Appellant.
__________________________________________________
Appearing for Appellant: ARZA FELDMAN, Feldman and
Feldman, Uniondale, New York.
Appearing for Appellee: PAUL D. SILVER and JOSHUA
VINCIGUERRA, Assistant United
States Attorneys, for Andrew T.
Baxter, United States Attorney
*
The Honorable Mark R. Kravitz, of the United States District Court
for the District of Connecticut, sitting by designation.
1
for the Northern District of New
York, Albany, New York.
Appeal from the United States District Court for the
Northern District of New York (McAvoy, J.).
1 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
2 AND DECREED that the judgment of the United States District
3 Court for the Southern District of New York be AFFIRMED.
4 On October 17, 2007, Defendant-Appellant Christine Owad
5 entered a plea of guilty for a violation of 18 U.S.C. § 641.
6 On December 8, 2008, Owad was sentenced to a fifteen-month
7 term of imprisonment, to be followed by three years of
8 supervised release. Owad now challenges the special
9 conditions imposed as terms of her supervised release and
10 the district court’s order that she pay restitution for her
11 crimes. Specifically, Appellant argues that the district
12 court erred in requiring that she participate in a mental
13 health program and in the computer restriction and
14 monitoring program, and that the district court failed to
15 adequately consider her financial circumstances and the
16 mandatory factors set forth in 18 U.S.C. § 3664(f)(2) in
17 imposing its restitution order. We presume the parties’
18 familiarity with the underlying facts, the procedural
19 history of the case, and the issues on appeal.
2
1 When, as in this case, the Appellant failed to
2 challenge the imposition of a condition of supervised
3 release before the district court, this Court reviews the
4 propriety of the conditions for plain error. United States
5 v. Dupes, 513 F.3d 338, 343 (2d Cir. 2008). We have,
6 however, “[o]n occasion, . . . reviewed unobjected to
7 sentencing errors without rigorous application of plain
8 error standards.” United States v. Sofsky, 287 F.3d 122,
9 125 (2d Cir. 2002). We have held that relaxation of the
10 plain error standard was warranted when “the challenged
11 condition of supervised release was not recommended in the
12 PSR.” Id. Even under a relaxed plain error standard of
13 review, we conclude that the district court did not commit
14 error — plain or otherwise — in imposing the challenged
15 special conditions of supervised release or in setting the
16 schedule for Appellant’s payment of restitution.
17 District courts have “broad discretion to tailor
18 conditions of supervised release.” United States v. Gill,
19 523 F.3d 107, 108 (2d Cir. 2008) (per curiam). In order to
20 fall within this broad discretion, a condition of supervised
21 release must involve “no greater deprivation of liberty than
22 is reasonably necessary to implement the statutory purposes
3
1 of sentencing,” id. at 109 (internal quotation marks and
2 citation omitted), must be “consistent with pertinent
3 Sentencing Commission policy statements, id., and must be
4 “reasonably related to the factors set forth in section[s]
5 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D).” 18 U.S.C.
6 § 3583(d)(1).
7 A district court is permitted to “require as a special
8 condition of [supervised release] that a defendant
9 participate in a mental health program ‘[i]f the court has
10 reason to believe that the defendant is in need of
11 psychological or psychiatric treatment.’” United States v.
12 Peterson, 248 F.3d 79, 84 (2d Cir. 2001) (per curiam)
13 quoting U.S.S.G. § 5B1.3(d)(5)). The condition requiring
14 that Owad participate in a mental health program was
15 reasonably related to her “history and characteristics.” 18
16 U.S.C. § 3553(a)(1).
17 Imposition of the special condition requiring that
18 Appellant participate in the computer restriction and
19 monitoring program was not error. We have held that
20 “[r]estrictions on Internet use may serve several sentencing
21 objectives, chiefly therapy and rehabilitation, as well as
22 the welfare of the community (by keeping the offender away
4
1 from an instrumentality of his [or her] offenses).” United
2 States v. Johnson, 446 F.3d 272, 281 (2d Cir. 2006). Here,
3 the district court stopped short of imposing an outright ban
4 on Appellant’s use of computers and the Internet. Cf. id.5 at 282. The special condition is reasonably related to “the
6 nature and circumstances of the offense,” the need to
7 “afford adequate deterrence to criminal conduct,” and the
8 need to “protect the public from further crimes of the
9 defendant.” 18 U.S.C. §§ 3553(a)(1), (a)(2)(B), and
10 (a)(2)(C).
11 The district court properly ordered that restitution
12 was due and payable immediately and set a schedule for
13 Appellant to make the required payments. Under a
14 deferential standard of review, see United States v. Amato,
15 540 F.3d 153, 159 (2d Cir. 2008), we find the district
16 court’s order proper. In imposing a restitution order, the
17 district court is not required to “explicitly recite that
18 she had considered the mandatory factors.” United States v.
19 Nucci, 364 F.3d 419, 421 (2d Cir. 2004). There is nothing
20 in the record that indicates that the district court failed
21 to consider the appropriate factors in requiring Owad to
22 adhere to the payment schedule it devised in connection with
5
1 its restitution order. See United States v. Fiore, 381 F.3d
2 89, 98 (2d Cir. 2004). To the contrary, the court’s
3 statements that it based the restitution amount on Owad’s
4 “overall financial resources and assets,” and that it
5 declined to require a fine based upon “the restitution order
6 and [Owad’s] financial situation,” are sufficient for us to
7 find that it considered the relevant factors. See United
8 States v. Mortimor, 52 F.3d 429, 436 (2d Cir. 1995). We
9 therefore affirm.
10 The Court has reviewed Plaintiff’s remaining arguments
11 and finds them to be without merit. Accordingly, the
12 judgment of the district court is hereby AFFIRMED.
13
14 For the Court
15 Catherine O’Hagan Wolfe, Clerk
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