United States v. Brown

16-3508
United States v. Brown
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, at 40 Foley Square, in the City of New
York, on the 7th day of March, two thousand eighteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
DEBRA ANN LIVINGSTON,
Circuit Judge,
JESSE M. FURMAN,*
District Judge.
UNITED STATES OF AMERICA,
Appellee,
v. No. 16-3508
JOSEPH P. BROWN,
Defendant-Appellant.
For Defendant-Appellant: Nicholas J. Pinto, Esq., New York, NY.
*
Judge Jesse M. Furman, of the United States District Court for the Southern District of New
York, sitting by designation.
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For Appellee: Wayne A. Myers and Carina H. Schoenberger,
Assistant United States Attorneys, for Grant C.
Jaquith, United States Attorney for the
Northern District of New York, Syracuse, NY.
Appeal from a judgment of the United States District Court for the Northern District of
New York (McAvoy, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Defendant Joseph P. Brown appeals from a judgment of the Northern District of New
York (McAvoy, J.), entered October 17, 2016, finding him guilty of violating supervised release
conditions imposed as a sentence for possession of child pornography and ordering a new
sentence of 14-months’ incarceration followed by a life term of supervised release. We assume
the parties’ familiarity with the underlying facts, the procedural history of the case, and the
issues on appeal.
Brown argues that the duration and conditions of supervised release imposed by the
district court are substantively unreasonable. “A sentencing court may impose special conditions
of supervised release that are ‘reasonably related’ to certain statutory factors governing
sentencing, ‘involve[] no greater deprivation of liberty than is reasonably necessary’ to
implement the statutory purposes of sentencing, and are consistent with pertinent Sentencing
Commission policy statements.” United States v. Myers, 426 F.3d 117, 123–24 (2d Cir. 2005)
(quoting 18 U.S.C. § 3583(d)). “All federal sentences, including those imposed for violations of
supervised release, are reviewed for reasonableness.” United States v. Gonzalez, 529 F.3d 94, 97
(2d Cir. 2008). “Reasonableness review has both a procedural and a substantive
component,” United States v. Irving, 554 F.3d 64, 71 (2d Cir. 2009), and it is “akin to a
‘deferential abuse-of-discretion standard,’” United States v. Cossey, 632 F.3d 82, 86 (2d Cir.
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2011) (quoting Gall v. United States, 552 U.S. 38, 52 (2007)). This Court cannot “substitute [its]
own judgment for the district court’s on the question of what is sufficient to meet the § 3553(a)
considerations in any particular case,” and should “set aside a district court’s substantive
determination 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)
(en banc) (emphasis omitted) (quoting United States v. Rigas, 490 F.3d 208, 238 (2d Cir. 2007)).
Brown was convicted of one count of possessing child pornography, in violation of 18
U.S.C. § 2252A(a)(5)(b), and sentenced to five years’ imprisonment and a lifetime of supervised
release. Brown’s offense involved possession of hundreds of images and over a dozen videos
depicting child pornography, as well as contact with multiple underage girls. The terms of his
supervised release restricted his contact with minors and limited his access to computers. He
challenged the substantive reasonableness of his sentence and supervised release on direct
appeal, but both were affirmed. United States v. Brown, 360 F. App’x 189, 191–92 (2d Cir.
2010) (summary order). Brown was released from custody in 2011. While on supervised release,
he engaged in repeated unauthorized access to computers and contacted a number of young girls
in Alaska via text message, posing as a 20- to 21-year old man named “Justin.” He pled guilty to
four violations of supervised release and was sentenced to 14 months’ incarceration and a life
term of supervised release, with conditions that were substantially similar to those originally
imposed. The conditions prohibit Brown from having unsupervised contact with persons under
the age of 18 or frequenting places where minors are likely to congregate; prohibit him from
using or possessing a computer, except at his place of employment, unless it is subject to
restrictions and monitoring; and mandate that, if his employment requires the use of a computer,
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he must notify the employer of the nature of his conviction and the fact that it was facilitated by
the use of a computer.
Relying on United States v. Jenkins, 854 F.3d 181, 194 (2d Cir. 2017), Brown argues that
a lifetime of supervised release under these conditions is substantively unreasonable because it
means that he will be unemployable and will never be able to integrate into society. However,
the reasonableness of a sentence is an individualized inquiry, Cavera, 550 F.3d at 190, and,
unlike the defendant in Jenkins, Brown has already violated the conditions of his supervised
release and both his original offense conduct and his violations involved contact with minor
females. The district court acknowledged that “the conditions of probation [were] difficult on
[Brown’s] family” but explained that “the only alternative is to keep you in jail and not put you
on supervised release[,] and that’s not the right thing to do either.” App. at 85. In addition, the
court explained that supervised release was necessary because Brown was “in danger of going
forward and having [his] conduct escalating into conduct [that was] going to put [him] behind
bars for a lot more time.” Id. We agree. Given Brown’s repeated violations, his pattern of posing
as a young man to exploit the trust and sexuality of young women for his own titillation, and the
risk that this behavior poses to both the public and to Brown, we cannot conclude that a life term
of supervision under the aforementioned conditions is outside “the range of permissible
decisions.” Cavera, 550 F.3d at 189 (quoting Rigas, 490 F.3d at 238). Consequently, we reject
Brown’s challenge to the substantive reasonableness of his sentence.
We have considered all of defendant’s arguments and have found in them no basis for
reversal. Accordingly, we AFFIRM judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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