23-7527 United States v. Cottom

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 TO 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 17th day of October, two thousand twenty-four.

PRESENT: GUIDO CALABRESI, JOSÉ A. CABRANES, RICHARD J. SULLIVAN, Circuit Judges. _____________________________________

UNITED STATES OF AMERICA,

Appellee,

v. No. 23-7527

KIRK COTTOM,

Defendant-Appellant. _____________________________________ For Defendant-Appellant: Kirk Cottom, pro se, Rochester, NY.

For Appellee: Katherine A. Gregory, Assistant United States Attorney, for Trini E. Ross, United States Attorney for the Western District of New York, Buffalo, NY.

Appeal from the orders of the United States District Court for the Western

District of New York (Elizabeth A. Wolford, Chief Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the August 23, 2023 and October 17, 2023

orders of the district court are AFFIRMED.

Kirk Cottom, proceeding pro se, appeals from the district court’s orders

denying his motion to terminate or modify the terms of his supervised release and

his subsequent motion for reconsideration. We assume the parties’ familiarity

with the underlying facts, procedural history, and arguments on appeal.

In 2015, Cottom entered a conditional plea of guilty in the District of

Nebraska to access with intent to view child pornography in violation of 18 U.S.C.

§ 2252A(a)(5)(B) and receipt of child pornography in violation of 18 U.S.C.

§ 2252A(a)(2)(A). The district court sentenced Cottom to six years’ imprisonment,

to be followed by six years of supervised release with nineteen special conditions

2 of supervision. Cottom appealed the district court’s judgment but, consistent

with his appeal waiver, did not challenge the conditions of his supervised release.

The Eighth Circuit affirmed. Upon Cottom’s release from custody in 2021, the

Western District of New York accepted jurisdiction over his supervised release

pursuant to

. Shortly thereafter, Cottom moved under

(e) to strike or modify certain special conditions of his supervised release,

which the district court granted in part and denied in part.

We affirmed the district court’s decision in its entirety. See United States v.

Cottom, No. 21-3053,

, at *1–3 (2d Cir. Mar. 2, 2023). Specifically,

we explained that “[section] 3583(e) does not allow a district court to consider

arguments about the legality of special conditions,” foreclosing “[t]he vast

majority” of Cottom’s challenges to his supervision.

at *1–2; see United States

v. Lussier,

, 34–35 (2d Cir. 1997) (directing that such “lawfulness”

challenges be brought on direct appeal or collateral attack). We also concluded

that the district court acted within its discretion in declining to modify certain

employment- and electronic device-related conditions, given that Cottom was a

“sophisticated computer user who pled guilty to accessing and receiving child

pornography over the internet” and had failed to demonstrate that his conditions

3 unduly interfered with his ability to work. Cottom,

, at *3.

One day after we issued our affirmance, Cottom filed another motion in the

district court pursuant to section 3583(e), seeking to terminate his term of

supervised release entirely or strike numerous special conditions of his

supervision – all of which he had previously challenged in his first motion. The

district court denied Cottom’s motion, concluding that the relevant section 3553(a)

factors did not support early termination and that he had failed to present any new

facts or arguments to warrant modification of the challenged conditions. Cottom

subsequently moved for reconsideration, which the district court denied. Cottom

again appealed. 1

A district court may, after considering the applicable section 3553(a) factors,

(1) terminate a term of supervised release if “such action is warranted by the

[defendant’s] conduct” and “the interest of justice,” or (2) modify the conditions

of supervision. See

(e)(1)–(2). We review the district court’s

decisions – both the denial of the section 3583(e) motion and the subsequent denial

1 Together with his section 3583(e) motion, Cottom filed two motions for the issuance of subpoenas to his probation officer and former attorney, which the district court denied. Because Cottom makes only a passing reference to these motions in his brief on appeal, we consider any challenge to this aspect of the district court’s ruling forfeited and do not consider it. See Gerstenbluth v. Credit Suisse Sec. (USA) LLC,

, 142 n.4 (2d Cir. 2013).

4 of reconsideration – for abuse of discretion. See United States v. Parisi,

(2d Cir. 2016) (modification of conditions of supervised release); United

States v. Moreno,

, 78 n.4 (2d Cir. 2015) (reconsideration). A district

court abuses its discretion if it “base[s] its ruling on an erroneous view of the law”

or “clearly erroneous assessment of the evidence,” or renders a decision outside of

the range of permissible decisions. United States v. Halvon,

(2d

Cir. 2022) (internal quotation marks omitted).

For many of the same reasons articulated in our prior decision, the district

court did not abuse its discretion in denying Cottom’s motions. Cottom first

contends that the district court clearly erred in assessing the evidence relevant to

the nature and circumstances of the offense conduct. But Cottom’s arguments go

not to the district court’s consideration of his conduct, but rather to the factual

basis and validity of his underlying guilty plea. See, e.g., Cottom Br. at 4 (asserting

that plea agreement’s recitation of his offense conduct is “unequivocally false” and

“perjurious”); id. at 6 (contending that his “plea was invalid”); see also id. at 11–12

(asserting “actual innocence” based on “fabricated and falsified” evidence). The

district court thus correctly declined to accept Cottom’s version of the facts or

otherwise consider the validity of his conviction in deciding his section 3583(e)

5 motion. See United States v. Warren,

(2d Cir. 2003) (“[T]he validity

of an underlying conviction or sentence . . . may be challenged only on direct

appeal or through a habeas corpus proceeding.”). And to the extent that Cottom

again attacks the legality of the special conditions imposed, we have already

explained that a section 3583(e) motion is not the proper vehicle to make such

challenges. See Cottom,

, at *2.

Equally unpersuasive is Cottom’s argument that the district court failed to

consider all the relevant section 3553(a) factors and gave insufficient weight to

evidence that, in his view, supported termination or modification of his

supervision. In modifying a sentence, the district court need only “provide some

indication of the rationale for [its] ruling” in order to “allow for meaningful

appellate review.” United States v. Brooks,

(2d Cir. 2024) (internal

quotation marks omitted); see United States v. Gammarano,

(2d Cir.

2003) (“We do not . . . require district courts to make specific findings of fact with

respect to each of [the relevant section 3553(a)] factors.”). Generally, we

“presume[]” that the district court has “considered all relevant [section] 3553(a)

factors and arguments unless the record suggests otherwise.” Halvon,

(internal quotation marks omitted).

6 The record demonstrates that the district court adequately accounted for the

relevant section 3553(a) factors – as well as Cottom’s conduct and the interest of

justice, as required by section 3583(e)(1) – and explained its reasons for denying

Cottom’s section 3583 motion. See Brooks,

. In denying his request

for early termination, the district court expressly referenced the section 3553(a)

factors and then appropriately focused on Cottom’s offense conduct and

characteristics, including his ongoing refusal to accept responsibility. Similarly,

in declining to strike the challenged conditions of supervision, the district court

concluded that Cottom had again failed to demonstrate how the electronic device-

and employment-related restrictions unduly burdened his ability to work. The

district court also reiterated that, given Cottom’s offense conduct and

characteristics, such conditions were necessary to meet the objectives of

sentencing, including “specific deterrence of future criminality, public protection,

and rehabilitation.” Gov’t App’x at 85–86.

Cottom repeatedly complains that his continued supervision and special

conditions are “solely punitive,” “clearly unnecessary and unreasonable,” and the

result of “irrational” bias against him, Cottom Br. at 8–9, but he fails to

meaningfully explain or point to any evidence in support of these conclusory

7 assertions. And while Cottom contends that the district court “improperly

downplayed” and “ignored” his completion of sex offender treatment, id. at 7, 9,

the district court explicitly considered this argument – but found that it “carr[ied]

less weight” in light of his “ongoing attempts” to minimize “his culpability and

deny his conduct,” Gov’t App’x at 84; see also United States v. Keitt,

(2d Cir. 2021) (“[T]he weight to be afforded any [section] 3553(a) factor is a matter

firmly committed to the discretion of the [reviewing] judge.” (internal quotation

marks omitted)). We therefore see no abuse of discretion in the district court’s

consideration of the relevant section 3553 factors or in its conclusion that relief

under section 3583(e) was not appropriate.

* * *

We have considered Cottom’s remaining arguments and find them to be

without merit. Accordingly, we AFFIRM the orders of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

8