United States v. Raftopoulos
Opinion of the Court
SUMMARY ORDER
Defendant-appellant James Raftopoulos appeals from the sentence imposed by the United States District Court for the Western District of New York (Siragusa, J.) following a plea of guilty to one count of receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2). The district court sentenced Raftopoulos principally to 121 months’ imprisonment and lifetime supervised release. We presume the parties’ familiarity with the factual and procedural background of this case and the issues raised on appeal.
Raftopoulos challenges the duration of his supervised release as well as the district court’s requirement that, once released from prison, Raftopoulos would be “prohibited from being on any school grounds, child care center, playground, park, or day care center without the exception or pre-approval by the probation office.” As an initial matter, we note that this is the text of the special condition as it was pronounced by the district court at sentencing. However, this version of the special condition is at variance with the written judgment of conviction and sentence. Generally, where there is such a variation “between an oral pronouncement of sentence and a subsequent written judgment, the oral pronouncement controls,” United States v. Rosario, 386 F.3d 166, 168 (2d Cir. 2004). We have carved out a limited exception permitting “mandatory” or “standard” conditions of release to be imposed for the first time in written judgments, see id. at 169, but because the condition of release in question was neither “mandatory” nor “standard,” we consider the condition as imposed by the district court at sentencing.
Raftopoulos’ related claim that the district misunderstood the advisory nature of the Sentencing Guidelines is unavailing, as the district court repeatedly noted that the Guidelines are no longer mandatory, evidencing its knowledge and application of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The fact that Judge Siragusa imposed lifetime supervised release on all eight defendants he sentenced for possessing child pornography in the two years leading up to Raftopoulos’ conviction does not, as Raftopoulos argues, give rise to a presumption that Judge Siragusa misunderstands the advisory nature of the Guidelines or the requirement that the district court conduct an individualized analysis in fashioning a criminal sentence. As discussed above, the district court conducted such an analysis in this case, and the resulting sentence was reasonable.
Second, Raftopoulos argues that the condition prohibiting him from ever being at a park or other areas without approval from the probation office is over-broad and not reasonably related to the purposes of his sentence. The government concedes that the written version of this condition is ambiguous and asks for a remand so that the district court might “more artfully draft [a] special condition regarding the prohibition of Raftopoulos’ presence in areas where children eongre
The district court has discretion to set supervised release conditions “to the extent that such conditions are reasonably related to the factors set forth in section 3558(a)(1) and (a)(2) and to the extent that such conditions involve only such deprivations of liberty or property as are reasonably necessary for the purposes indicated in section 3553(a)(2).” 18 U.S.C. § 3563(b). We review a district court’s imposition of supervised release conditions for abuse of discretion. United States v. Peterson, 248 F.3d 79, 82 (2d Cir. 2001) (per curiam). The district court abused its discretion in prohibiting Raftopoulos “from being on any school grounds, child care center, playground, park, or day care center without the exception or pre-approval by the probation office,” because this condition is excessively broad. While we have in the past approved of release conditions requiring sex offenders to stay away from places in which children congregate, we have vacated more general restrictions on a defendant’s liberty because “there would be no justification to forbid the defendant from being at parks and educational or recreational facilities where children do not congregate.” Id. at 86. For example, in Peterson we remanded for clarification of a condition prohibiting the defendant from “being on any school grounds, child care center, playground, park, recreational facility or any area in which children are likely to congregate.” Id. We could not determine from the language of the condition “whether the clause ‘in which children are likely to congregate’ applies only to ‘any area,’ or to the other places listed,” and therefore deemed the condition impermissibly vague. Id. In this case, the district court erroneously failed to limit the prohibition on Raftopoulos’ presence in parks and other places in any meaningful way, and therefore erred in crafting this condition of release. Because there would be no justification for prohibiting Raftopoulos from parks, portions of parks, or any other areas in which children do not congregate, we must remand this condition for clarification by the district court. The pre-approval requirement does not cure this defect because it endows the probation office with too much discretion in interpreting an ambiguous supervised release condition. To make Raftopoulos’ liberty contingent on such an exercise of discretion is an impermissible delegation of the judicial power. Id. at 85 (observing that “[i]f ... the court intends to leave the issue of the defendant’s participation in therapy to the discretion of the probation officer, such a condition would constitute an impermissible delegation of judicial authority and should not be included”).
For the foregoing reasons, we AFFIRM the district court’s imposition of lifetime supervised release, and REMAND for clarification of the condition prohibiting Raftopoulos’ presence “on any school grounds, child care center, playground, park, or day care center” without any limiting term(s).
Reference
- Full Case Name
- United States v. James RAFTOPOULOS
- Cited By
- 3 cases
- Status
- Published