16‐1625‐cr United States v. Springer

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 COURTʹS 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 ʺSUMMARY ORDERʺ). 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 27th day of March, two thousand seventeen.

PRESENT: DENNY CHIN, RAYMOND J. LOHIER, JR., Circuit Judges, COLLEEN McMAHON, Chief District Judge.* ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

UNITED STATES OF AMERICA, Appellee, 16‐1625‐cr v.

FREDERICK J. SPRINGER, Defendant‐Appellant.

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FOR APPELLEE: Lisa M. Fletcher, Michael D. Gadarian, Assistant United States Attorneys, for Richard S. Hartunian, United States Attorney for the

* Chief Judge Colleen McMahon, of the United States District Court for the Southern District of New York, sitting by designation. Northern District of New York, Syracuse, New York.

FOR DEFENDANT‐APPELLANT: Courtenay K. McKeon, James P. Egan, Assistant Federal Public Defenders, for Lisa A. Peebles, Federal Public Defender for the Northern District of New York, Syracuse, New York.

Appeal from the United States District Court for the Northern District of

New York (Mordue, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Defendant‐appellant Frederick J. Springer appeals from a judgment of the

district court entered May 17, 2016, revoking his supervised release and sentencing him

to two yearsʹ imprisonment followed by a life term of supervised release. On appeal,

Springer challenges only a special condition of his supervised release prohibiting him

from viewing, possessing, owning, subscribing to, or purchasing any materials

depicting sexually explicit conduct, as defined in

(2).1 We assume the

partiesʹ familiarity with the underlying facts, procedural history, and issues on appeal.

Springer was convicted of six sex offenses between 1997 and 2004, the last

conviction occurring when he was 25 years old. Five of the offenses involved minor

1 Section 2256(2) defines ʺsexually explicit conductʺ as ʺactual or simulated ‐‐ (i) sexual intercourse . . . ; (ii) bestiality; (iii) masturbation; (iv) sadistic or masochistic abuse; or (v) lascivious exhibition of the genitals or pubic area of any person.ʺ

(2). 2 victims, and the remaining offense involved a 19‐year old.2 In 2010, Springer pled

guilty in this case to failure to register as a sex offender in violation of

(a), and was sentenced to 37 monthsʹ imprisonment and a life term of supervised

release. Among the conditions of his supervised release was a special condition

prohibiting him from ʺview[ing], possess[ing], own[ing], subscrib[ing] to or

purchas[ing] any material, including pictures, videotapes, films, magazines, books,

telephone services, electronic media, computer programs, or computer services that

depict sexually explicit conduct, as defined in

(2)ʺ (the ʺpornography

restrictionʺ). App. at 118. Springer did not challenge the condition.

Since his term of supervision began, Springer has had his supervised

release revoked for violations four times. In 2012, Springer admitted to failing to follow

the instructions of his probation officer and associating with a convicted felon. He was

sentenced to 13 monthsʹ imprisonment and a life term of supervised release, including

the pornography restriction. In 2014, he admitted to failing to complete a residential

reentry placement and comply with the terms of home detention. He was then

sentenced to seven monthsʹ imprisonment and a life term of supervised release,

including the pornography restriction. In 2015, he admitted to viewing pornography

and violating his computer monitoring program. He was subsequently sentenced to 33

2 Springer was also convicted of several non‐sex crimes, including passing bad checks and larceny. 3 daysʹ imprisonment and a life term of supervised release, including the pornography

restriction.3

Most recently, on May 12, 2016, Springer admitted five new violations of

the terms of his supervised release ‐‐ failure to report to his probation officer,

associating with a person convicted of a felony, failure to report for sex offender

treatment and a computer voice stress test, failure to report for a drug test, and failure

to report to mental health treatment ‐‐ and was found guilty of a sixth violation, failure

to update his sex offender registration, after an evidentiary hearing. The district court

sentenced him to two yearsʹ imprisonment and a life term of supervised release,

including the pornography restriction.

At sentencing, defense counsel objected to the pornography restriction as

overbroad. The district court imposed the condition over Springerʹs objection, citing,

inter alia, Springerʹs prior sex offenses; history of supervised release violations,

including viewing pornography and attempting to delete his browsing history; and a

2012 mental health evaluation that recommended Springer be restricted from viewing

any pornography. This appeal followed.

Where a defendant challenged a condition of supervised release in the

district court, we review the imposition of that condition for abuse of discretion. United

States v. Reeves,

(2d Cir. 2010). Applying this deferential standard, we

3 Springerʹs appeal of his sentence arising out of his third violation of supervised release was dismissed as moot after he was sentenced on his fourth violation. 4 conclude that the district court acted within its discretion in imposing the pornography

restriction.

A district court may impose special conditions of supervised release that:

(1) are reasonably related to (A) the nature and circumstances of the offense and the history and characteristics of the defendant; (B) the need for the sentence imposed to afford adequate deterrence to criminal conduct; (C) the need to protect the public from further crimes of the defendant; and (D) the need to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; and (2) involve no greater deprivation of liberty than is reasonably necessary for [these] purposes . . . .

U.S.S.G. § 5D1.3(b); see also

(d)(1)‐(2);

(a)(1), (a)(2)(B)‐(D)

(outlining same). Furthermore, the condition must be consistent with any pertinent

policy statements issued by the Sentencing Commission.

(d)(3);

U.S.S.G. § 5D1.3(b).

Springer argues that the pornography restriction is unreasonable because

it is not reasonably related to the relevant sentencing factors and represents a greater

deprivation of liberty than is reasonably necessary. We hold that the court acted within

its discretion in imposing the restriction on the instant record. The ʺconditional libertyʺ

to which offenders on supervised release are subject ʺmay include, inter alia, a

prohibition against possession of pornographic matter.ʺ United States v. Carlton,

(2d Cir. 2006); see also United States v. Cabot,

, 385‐86 (2d Cir.

2003) (upholding a special condition prohibiting the possession of pornographic

material). We have specifically upheld restrictions on adult pornography where the

5 record indicated that the restriction was reasonably related to aforementioned

sentencing factors, as required by law. See United States v. Simmons,

, 82‐83

(2d Cir. 2003) (finding prohibition on adult pornography reasonable given, inter alia,

defendantʹs history of sexual assault involving minors and adults).

Springer argues that the restriction is inappropriate here, where the

district court did not hear evidence or make factual findings regarding the connection

between the pornography ban and Springerʹs underlying federal offense or prior

crimes, none of which involved pornography. A history of pornography‐related

offenses or addiction, however, is not required to establish a nexus between a

pornography prohibition and the sentencing factors. The district court made clear the

reasons it incorporated the pornography restriction into Springerʹs release conditions.

Specifically, the court considered Springerʹs history of contact sex offenses, with both

children and adults, and his history of supervised release violations. The district court

also relied on a 2012 evaluation from a court‐approved mental health provider

recommending that Springer be prohibited from accessing any pornographic materials.

Bearing in mind the First Amendment protections that may apply to sexually explicit

materials involving adults, see United States v. X–Citement Video, Inc.,

(1994), based on the record, we are satisfied that condition was reasonably related to

Springerʹs history of sex offenses, the need for specific and general deterrence and to

protect public safety, and Springerʹs treatment, and that it imposed no greater restraint

on Springerʹs liberty than was reasonably necessary to address the same. See Simmons,

6 343 F.3d at 82‐83; see also United States v. Poitra,

(8th Cir. 2011)

(upholding condition prohibiting adult pornography on plain error review where

defendant had a history of sexual abuse of children).

We have considered Springerʹs remaining arguments and conclude they

are without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

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