23-7160-cr United States v. Allen

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, 40 Foley Square, in the City of New York, on the 29th day of October, two thousand twenty-four.

Present: DEBRA ANN LIVINGSTON, Chief Judge, PIERRE N. LEVAL, DENNY CHIN, Circuit Judges. _____________________________________

UNITED STATES OF AMERICA,

Appellee,

v. 23-7160-cr

THOMAS ALLEN,

Defendant-Appellant. _____________________________________

For Appellee: RAJIT S. DOSANJH, Assistant United States Attorney (Richard D. Belliss, Assistant United States Attorney of Counsel, on the brief), on behalf of Carla B. Freedman, United States Attorney for the Northern District of New York, Syracuse, NY.

For Defendant-Appellant: MOLLY K. CORBETT, Assistant Federal Public Defender, Office of the Federal Public Defender, Syracuse, NY. Appeal from a judgment of the United States District Court for the Northern

District of New York (Mae A. D’Agostino, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the District Court is AFFIRMED and the case is

REMANDED for further proceedings consistent with this summary order.

Defendant-Appellant Thomas Allen appeals from a judgment of revocation of

supervised release entered on September 13, 2023, in the United States District Court for

the Northern District of New York (D’Agostino, J.), sentencing him principally to 14

months’ imprisonment followed by 10 years’ supervised release. On appeal, Allen

challenges the substantive reasonableness of the term of supervised release. He also

challenges a portion of one of ten special conditions of supervised release imposed by the

District Court (Special Condition 6) which limits Allen to possessing one personal

internet-capable electronic device. We assume the parties’ familiarity with the

underlying facts and the record of prior proceedings, to which we refer only as necessary

to explain our decision to AFFIRM and to REMAND to the District Court with

instructions to amend the written judgment as to Special Condition 6 so that it conforms

to the District Court’s final oral pronouncement imposing that condition.

I. Term of Supervised Release

In 2012, Allen pleaded guilty to a one count information charging him with failure

2 to register and update registration under the Sex Offender Registration and Notification Act

(“SORNA”), in violation of

(a). Allen’s ultimate sentence (after an appeal

and remand) was principally a 20-month term of imprisonment to be followed by a 10-

year term of supervised release. Since his release, Allen has had his supervised release

revoked due to violations of the terms of supervised release six times—in 2016, 2018,

2020, 2021, 2022, and 2023. On each occasion, the District Court has imposed a term of

imprisonment within the Guidelines range and a 10-year term of supervised release.

In appealing his most recent revocation, Allen first argues that the District Court

abused its discretion in imposing a 10-year term of supervised release on the grounds

that this term is substantively unreasonable. “Sentences for violations of supervised

release are reviewed under ‘the same standard as for sentencing generally: whether the

sentence imposed is reasonable.’” United States v. Ortiz,

, 119-20 (2d Cir.

2024) (quoting United States v. Brooks,

(2d Cir. 2018)). Reasonableness in

this context is “a particularly deferential form of abuse-of-discretion review . . . .” United

States v. Davis,

(2d Cir. 2023) (quoting United States v. Broxmeyer,

(2d Cir. 2012)). “Review for substantive reasonableness requires that we

consider ‘the totality of the circumstances, giving due deference to the sentencing judge’s

exercise of discretion and bearing in mind the institutional advantages of district courts.’”

United States v. Smith,

(2d Cir. 2020) (quoting United States v. Brown,

(2d Cir. 2016)). Sentences are “reverse[d] for substantive unreasonableness

3 only when the trial court’s sentence cannot be located within the range of permissible

decisions.” Smith,

(citation omitted).

Courts may revoke supervised release after considering relevant sentencing

factors, including the nature and circumstances of the offense, the history and

characteristics of the defendant, and the need to protect the public from further crimes of

the defendant.

(e), 3553(a). If revoked, the District Court may impose

an additional term of supervised release to follow imprisonment as part of its new

sentence.

(h). “The length of such a term of supervised release shall

not exceed the term of supervised release authorized by statute for the offense that

resulted in the original term of supervised release, less any term of imprisonment that

was imposed upon revocation of supervised release.”

Considering the totality of the circumstances and the deferential standard of

review, we conclude that the term of supervised release imposed here is not substantively

unreasonable.

First, Allen’s term of supervised release did not exceed the length authorized for

his underlying SORNA conviction which permits up to a life term of supervised release.

See

(h); 3583(k). Second, it is clear that the District Court’s reimposition

of a 10-year term of supervision was supported by the § 3553(a) factors—specifically, the

“nature and circumstances of the offense,” Allen’s “history and characteristics,” and the

need to “protect the public from further crimes of the defendant.”

4 At sentencing, the District Court stated that given Allen’s “history with all of these

violations”—many of which involved obtaining unauthorized electronic devices and

creating fictitious internet personas to meet women with children from whom he hid his

designation as a sex offender—“he is still a danger to the community and I cannot justify

in my analysis any lesser period of time.” App’x 133-34. The District Court reasonably

concluded that continued supervision was necessary to monitor Allen and ensure his safe

transition back into the community. See United States v. Leon,

(2d Cir.

2011) (per curiam) (“[A] defendant’s violation of the terms of his supervised release

‘tends to confirm the judgment that help was necessary, and if any prisoner might profit

from the decompression stage of supervised release, no prisoner needs it more than one

who has already tried liberty and failed.’”).

Allen’s sentence is consistent with all relevant statutory requirements and is not

“so shockingly high, shockingly low, or otherwise unsupportable as a matter of law that

allowing [it] to stand would damage the administration of justice.” United States v.

Muzio,

(2d Cir. 2020) (citation omitted). Accordingly, we conclude that

the district court did not abuse its discretion in imposing a 10-year term of supervised

release.

II. Internet Capable Device Restriction

At sentencing, Allen waived a reading of the special conditions but objected to a

portion of Special Condition 6 that stated in relevant part: “You may be limited to

5 possessing one personal internet capable device to facilitate the U.S. Probation Office’s

ability to effectively monitor your internet related activities.” App’x 144. Defense

counsel argued that this special condition impermissibly delegated decision-making

authority to the Probation Office. In response, the District Court orally amended Special

Condition 6 to clarify that the court was imposing the single internet-capable device

restriction itself and not delegating the authority to do so to the Probation Office. Allen

did not further object. Now on appeal, Allen argues that the District Court did not make

sufficiently particularized findings to justify limiting him to a single personal internet

access device.

“[W]hen a defendant fails to object to an alleged sentencing error before the district

court, we will ordinarily consider any later objection forfeited on appeal unless the

defendant can meet the plain-error standard.” United States v. Davis,

(2d Cir. 2023). Although Allen objected on the grounds that Special Condition 6

improperly delegated authority to the Probation Office, he did not object to the

sufficiency of the District Court’s explanation for the oral amended condition. And “[t]o

preserve an objection for appellate review, a defendant must articulate it to the trial court

‘with sufficient distinctness to alert the court to the nature of the claimed defect.’” United

States v. Dorvee,

(2d Cir. 2010) (quoting United States v. Gallerani,

(2d Cir. 1995)). Accordingly, we review for plain error.

6 “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. Gill,

(2d Cir. 2008) (per curiam) (quotation

marks omitted). “A district court is required to make an individualized

assessment . . . and to state on the record the reason for imposing [the special

condition].” United States v. Betts,

(2d Cir. 2018). We have

acknowledged that “a restriction limiting a supervisee to just one internet-connected

device would pose a significant burden on his liberty.” United States v. Kunz,

(2d Cir. 2023) (citing United States v. Matta,

(2d Cir. 2015)). But

we have “not suggest[ed] that such a severe restraint on internet access could never be

warranted,” only that “it would require particularized justification by the court.”

Here, the District Court explained that because Allen has repeatedly “had data

storage devices and internet capable devices that probation has not been aware of,”

imposing a single internet-capable device condition was “narrowly tailored” to “fit this

defendant’s profile.” App’x 132-33. In addition, the District Court emphasized how,

given Allen’s history of misusing the internet while on supervised release, “it would be

very difficult for the probation office to have to be monitoring multiple devices during

the period of supervision.” App’x 132. The District Court also described the single-

7 device limitation as “fluid” and noted that the conditions can be “added to or subtracted

based upon what the Court sees after this latest period of incarceration.” App’x 132.

The provisional and temporary nature of the limitation renders it more particularized

and less restrictive than it otherwise might have been. See United States v. O’Bryan,

at *2 (2d Cir. June 28, 2024) (summary order).

We do not address whether the District Court should have provided further

explanation to justify the single-device condition. Instead, on plain error review, we

simply find that there was no “clear and obvious” error, United States v. Haverkamp,

(2d Cir. 2020), given the District Court’s effort to connect the one-device

limitation to the circumstances of this case and the lack of controlling precedent

describing the “particularized findings” that are necessary to impose such a condition.

Although the District Court orally amended Special Condition 6 following defense

counsel’s objection, the written judgment reflects its pre-objection form. We therefore

direct the District Court, on remand, to amend the written judgment with regard to

Special Condition 6 so that the written judgment conforms to the oral pronouncement of

this condition. See United States v. Peguero,

(2d Cir. 2022).

* * *

We have considered Allen’s remaining arguments and conclude that they are

without merit. For the foregoing reasons, the judgment of the District Court is

AFFIRMED and the case is REMANDED with instructions to amend the written

8 judgment as to Special Condition 6 so that it conforms to the oral pronouncement of this

condition.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

9