17‐356‐cr U.S. v. Lombardi

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 22nd day of March, two thousand eighteen.

PRESENT: GUIDO CALABRESI, DENNY CHIN, SUSAN L. CARNEY, Circuit Judges.

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UNITED STATES OF AMERICA, Appellee,

v. 17‐356‐cr

PETER LOMBARDI, Defendant‐Appellant.

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FOR APPELLEE: BRADLEY T. KING, Assistant United States Attorney (Amy Busa, Assistant United States Attorney, on the brief), for Richard P. Donoghue, United States Attorney for the Eastern District of New York, Brooklyn, New York.

FOR DEFENDANT‐APPELLANT: YUANCHUNG LEE, Federal Defenders of New York, New York, New York.

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

New York (Hurley, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the case is REMANDED for further proceedings.

Defendant‐appellant Peter Lombardi appeals from the district courtʹs

January 31, 2017 judgment, entered upon his guilty plea, convicting him of possessing

child pornography in violation of

(a)(4)(B) and sentencing him

principally to 36 monthsʹ imprisonment and seven years of supervised release.

Lombardi challenges four conditions of his supervised release as overly intrusive,

including a special condition requiring him to notify future employers that he was

convicted of a computer‐related offense. We assume the partiesʹ familiarity with the

underlying facts, procedural history, and issues on appeal.

On June 29, 2016, Lombardi, then an automotive mechanic, pleaded guilty

to a violation of

(a)(4)(B) for possessing thousands of images and videos

of child pornography on his laptop and external hard drive. Lombardi was a first‐time

offender with no history of criminal conduct. While released on bail, Lombardi

searched for legal teen pornography on his laptop, violating a condition that barred him

from using a computer or accessing the Internet except for employment purposes. In

November 2016, as a result of that violation, he was remanded into custody.

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On January 27, 2017, the district court sentenced Lombardi to 36 monthsʹ

imprisonment. During sentencing, the court expressly accepted the assertion that

Lombardi did not present a risk of harming children or engaging in further criminal

conduct, but recognized it was ʺnot clairvoyantʺ as to whether Lombardi would view

child pornography in the future. App. 139.

As part of the terms of Lombardiʹs supervised release, the court imposed

all nine special conditions recommended by Probation. As relevant to this appeal,

Special Condition 6 requires Lombardi to ʺnotify his employer of his computer related

offense if his job requires computer access with Internet capability.ʺ App. 157.

Lombardiʹs counsel objected to this condition as overly burdensome, explaining that the

requirement ʺwould prohibit him from working, as employers are not forgiving, if he

says it is a computer‐related offense.ʺ App. 146. The district court, however, agreed

with Probation that Probation should be empowered to monitor any computer

accessible to Lombardi to ascertain his compliance with the supervised release

conditions.

Special Condition 2 requires that Lombardi ʺnot associate with any

child(ren) under the age [of] 18, unless a responsible adult is present and he has prior

approval from the Probation Department.ʺ App. 157. Standard Condition 6 requires

Lombardi to ʺallow the probation officer to visit [him] at any time at [his] home or

elsewhere.ʺ App. 156. Under Standard Condition 12, ʺ[if] the probation officer

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determines that [Lombardi] pose[s] a risk to another person (including an organization),

the probation officer may require [Lombardi] to notify the person about the risk.ʺ App.

156. Lombardi did not object to Special Condition 2 or either of the standard conditions

at sentencing.

Judgment was entered on January 31, 2017. This appeal followed.

We review the imposition of conditions of supervised release for abuse of

discretion. United States v. Reeves,

(2d Cir. 2010). We review legal issues

arising from the imposition of such conditions de novo, and every error of law

constitutes an abuse of discretion.

When a defendant fails to object to a condition,

we typically review for plain error, but we may ʺrelax the otherwise rigorous standards

of plain error reviewʺ under certain circumstances, such as where a defendant lacked

prior notice of the challenged condition. United States v. Sofsky,

(2d

Cir. 2002).

A district court may impose a condition of supervised release ʺthat is

ʹreasonably relatedʹ to several of the statutory factors governing the selection of

sentences, ʹinvolves no greater deprivation of liberty than is reasonably necessaryʹ for

several statutory purposes of sentencing, and is consistent with Sentencing Commission

policy statements.ʺ

at 126 (quoting

(d)). Among the relevant

statutory factors are ʺthe nature and circumstances of the offense and the history and

characteristics of the defendant,ʺ the need ʺto afford adequate deterrence to criminal

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conduct,ʺ and the need ʺto protect the public from further crimes of the defendant.ʺ

(a)(1), (a)(2)(B), (a)(2)(C); see also United States v. Gill,

(2d

Cir. 2008) (per curiam). ʺWhile district courts have broad discretion to tailor conditions

of supervised release, that discretion is not unfettered,ʺ and we will ʺcarefully scrutinize

conditions that may be excessively harsh or inexplicably punitive.ʺ United States v.

Jenkins,

(2d Cir. 2017) (citations omitted).

A district court may impose an occupational restriction, including an

employer notification condition, ʺonly if it determines that: (1) a reasonably direct

relationship existed between the defendantʹs occupation . . . and the conduct relevant to

the offense of conviction; and (2) imposition of such a restriction is reasonably necessary

to protect the public because there is reason to believe that, absent such restriction, the

defendant will continue to engage in unlawful conduct similar to that for which the

defendant was convicted.ʺ U.S.S.G. § 5F1.5(a); see United States v. Peterson,

, 85‐86 (2d Cir. 2001) (per curiam). Both requirements must be satisfied: even where

there is an ʺobviousʺ relationship between the restriction and the defendantʹs

occupation, a ʺcourt is not to imposeʺ the restriction ʺunless it findsʺ the second

requirement is satisfied as well. United States v. Doe,

, 1322‐23 (2d Cir. 1996).

In Jenkins, which we decided after the sentencing in this case, we struck

two special conditions similar to Special Conditions 6 and 2.

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First, we struck a special condition requiring that the defendant ʺnotify his

prospective employer of the nature of his conviction and the fact that his conviction was

facilitated by the use of a computerʺ if his employment involved a computer because

the relationship between the restriction and his offense was not ʺreadily apparent.ʺ

Jenkins,

. In the instant case, the ʺreasonably direct relationship,ʺ

Peterson,

(quoting U.S.S.G. § 5F1.5(a)), between Lombardiʹs occupation as

an automotive mechanic and his child pornography offense is also not ʺreadily

apparent,ʺ Jenkins,

. As far as we can discern, the only connection is that

Lombardi used a computer to commit his offense, and he is likely to need to use a

computer in his work as an automotive mechanic. Lombardi did not, however, use a

work computer to commit his crime nor, indeed, was his crime connected in any way to

his occupation. Cf. Peterson,

(ʺAlthough a defendant might use the

telephone to commit fraud, this would not justify a condition of probation that includes

an absolute bar on the use of telephones.ʺ). Nor does the record establish that Lombardi

ʺwill continue to engage in unlawful conduct similar to that for which [he] was

convicted.ʺ

(quoting U.S.S.G. § 5F1.5(a)). To the contrary, the district court did not

think that Lombardi ʺrepresents a risk to society in the sense that heʹs likely to engage in

further criminal conduct.ʺ App. 139. And the conduct that led to Lombardiʹs bail

violation, while perhaps objectionable, was not in itself unlawful.

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Second, in Jenkins we struck a special condition barring the defendant

from ʺany direct contact with a person under the age of 18 unless it is supervised by a

person approved of by the probation officer,ʺ

, noting that it would

ʺapply with full force to all routine family interaction ‐‐ for example, Thanksgiving

dinners or seders or christenings,ʺ

. Again, in the instant case, there is no

evidence that Lombardi poses a risk of harm to minors. Indeed, the district court

accepted that Lombardi ‐‐ a first‐time offender ‐‐ had not harmed children and did not

pose a risk of harming children or others.

We therefore remand to the district court to reconsider Special Conditions

6 and 2 in light of our decision in Jenkins. The district court may invite the parties to

further develop the record to support or oppose the imposition of Special Conditions 6

and 2, and keep, modify, or drop the conditions. See United States v. Brown,

(2d Cir. 2005). Moreover, while we do not believe that Lombardi has shown

plain error with respect to the district courtʹs imposition of Standard Conditions 6 and

12, as the case is being remanded in any event, the district court may choose to revisit

them.

Accordingly, we REMAND for further proceedings consistent with this

order.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

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