United States v. Brunner ( 2021 )

20-2661-cr
United States v. Brunner
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 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 29th day of September, two thousand twenty-one.
PRESENT: PIERRE N. LEVAL,
JOSÉ A. CABRANES,
ROSEMARY S. POOLER,
Circuit Judges.
UNITED STATES OF AMERICA,
Appellee, 20-2661-cr
v.
KENNETH BRUNNER, AKA SEALED DEFENDANT,
Defendant-Appellant.
FOR APPELLEE: Antoinette T. Bacon, Acting United States
Attorney (Lisa Fletcher, Alexander
Wentworth-Ping, Assistant United States
Attorneys, on the brief) Albany, NY.
FOR DEFENDANT-APPELLANT: Lisa A. Peebles, Federal Public Defender
(Melissa A Tuohey, Assistant Federal
Defender, on the brief), Syracuse, NY.
Appeal from a judgment of the United States District Court for the Northern District of
New York (Glenn T. Suddaby, Chief Judge).
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UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court be and hereby is
AFFIRMED.
Defendant-Appellant Kenneth Brunner (“Brunner”) appeals from a judgment for revocation
of supervised release and his sentencing to a new five-year term of supervised release, entered July
30, 2020. Brunner was convicted in 2011 of failing to register under the Sex Offender Registration
and Notification Act (SORNA), 18 U.S.C. § 2250(a), and initially sentenced to six months’
imprisonment and five years’ supervised release. Since then, his supervised release has been revoked
four times, with the most recent revocation leading to the sentence he now appeals. We assume the
parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on
appeal.
On appeal, Brunner challenges both the imposition of a fifth term of supervised release as
substantively unreasonable and the imposition of Special Conditions Nos. 2 and 3 as imposed in
violation of 18 U.S.C. § 3583(d). Brunner acknowledges that these two challenges are raised for the
first time on appeal, and we therefore review them for plain error. United States v. Villafuerte, 502 F.3d
204, 207 (2d Cir. 2007) (“[I]ssues not raised in the trial court . . . including sentencing issues, are
normally deemed forfeited on appeal unless they meet our standard for plain error.”); United States v.
Dupes, 513 F.3d 338, 343 n.2 (2d Cir. 2008) (review for plain error following defendant’s failure to
object below to known conditions of supervised release).
Brunner argues his sentence is substantively unreasonable because it “cannot be located
within the range of permissible decisions.” Appellant’s Br. 34. But a period of supervised release was
clearly within the range of permissible sentences available to the District Court. For Brunner’s
original offense, the Guidelines authorized a term of supervised release of five years to life. 18
U.S.C. § 3583(k). The Guidelines thus also authorized a term of supervised release, following
revocation, of five years to life. 18 U.S.C. § 3583(h). See also United States v. Leon, 663 F.3d 552, 554–
55 (2d Cir. 2011) (a post-revocation term of supervised release need not give credit for supervised
release time previously served). An additional term of supervised release was therefore not
substantively unreasonable in this case, much less a five-year term that fell well below the maximum
duration—life—permitted by the Guidelines. See United States v. Hall, 579 F. App’x 29, 32 (2d Cir.
2014) (summary order) (term of supervised release not substantively unreasonable where “there was
no deviation from the Guidelines, which provided for up to a lifetime term of supervised release . . .
[n]or was the term imposed . . . any longer than that already imposed on [defendant] for his violation
of SORNA”).
Brunner also argues that an additional term of supervised release “no longer serves the
rehabilitative purpose of supervised release.” Appellant’s Br. 34. Here, Brunner’s argument appears
to be that because he has repeatedly violated the terms of his supervised release in the past,
sentencing him to yet another term of supervised release would be ineffective at accomplishing
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rehabilitative goals. We reject this argument. We note that in imposing its sentence, the District
Court articulated a belief that Brunner “need[s] the intervention, the help, counseling,” afforded by
the conditions of his release to a half-way house, App. 143–44, and expressed a continued desire to
have Brunner “transition into the community,” Id. 147. Under such circumstances, the District
Court’s sentence of a five-year supervised release does not constitute a “manifest injustice” or
“shock the conscience,” and is therefore not substantively unreasonable. United States v. Rigas, 583
F.3d 108, 123–24 (2d Cir. 2009).
Separately, Brunner argues that Special Conditions Nos. 2 and 3 of his supervised release
violate 18 U.S.C. § 3583(d) because they are not “reasonably related” to the 18 U.S.C. § 3553(a)
sentencing factors the court must consider and involve a “greater deprivation of liberty than is
reasonably necessary.” 18 U.S.C. § 3583(d). Again, we disagree. Condition No. 2 prohibits Brunner
from “direct contact with any child [he] know[s] or reasonably should know to be under the age of
18, without permission of the probation officer.” App. 160. Condition No. 3 prohibits him from
“remain[ing] at any place, for the primary purpose of observing or contacting children under the age
of 18, where [he] know[s] children under the age of 18 are likely to be.” Id. The District Court clearly
explained its rationale for imposing these conditions in its Appellate Review/Modification Order of
February 26, 2020 (following this Court’s review of the District Court’s previous order of revocation
of supervised release). The District Court noted Brunner’s “prior sex offense,” “his serious
substance abuse issues,” “his inability to comply with this Court’s directives,” and his “repeated
incidents of lack of impulse control when under the influence of substances.” App. 128–130. The
District Court concluded that based on these factors “it is appropriate to limit Brunner’s access to
potential victims,” App. 130, and Conditions Nos. 2 and 3 acceptably accomplish that. See United
States v. Johnson, 446 F.3d 272, 281 (2d Cir. 2006) (restrictions on contact with minors are appropriate
as conditions of supervised release and are generally read to exclude inadvertent contact); United
States v. Pabon, 819 F.3d 26, 31 (1st Cir. 2016) (similar).
Brunner argues that his underlying SORNA conviction is administrative and not sexual in
nature. But “a sex offender treatment condition may be reasonable even where the present offense is
not sexual in nature.” Pabon, 819 F.3d at 31. Brunner also argues that Condition No. 3 is vague and
overbroad because it relies on a determination of what Brunner’s “primary purpose” is for
remaining in a location where minors are likely to be. Appellant’s Br. 42. But “[i]t [is] not plain error
to conclude that a person of ‘common intelligence’ could understand if they were going to a place
for the primary purpose of observing children, as opposed to visiting a place where observing
children is merely incidental to the primary purpose of the visit.” United States v. Robinson, 815 F.
App’x 583, 586 (2d Cir. 2020) (summary order) (quoting United States v. Simmons, 343 F.3d 72, 81 (2d
Cir. 2003)). In sum, we discern no error in the District Court’s imposition of Conditions Nos. 2 and
3, much less plain error.
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CONCLUSION
We have reviewed all of the arguments raised by Brunner on appeal and find them to be
without merit. For the foregoing reasons, we AFFIRM the July 30, 2020 judgment of the District
Court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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