23-6097 United States v. Gladle

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 5th day of April, two thousand twenty-four.

PRESENT: DENNIS JACOBS, RICHARD J. SULLIVAN, EUNICE C. LEE, Circuit Judges. _____________________________________

UNITED STATES OF AMERICA,

Appellee,

v. No. 23-6097 THOMAS GLADLE,

Defendant-Appellant. ∗ _____________________________________

∗ The Clerk of Court is respectfully directed to amend the official case caption as set forth above. For Defendant-Appellant: Melissa A. Tuohey, Assistant Federal Public Defender, Office of the Federal Public Defender, Syracuse, NY.

For Appellee: Rajit S. Dosanjh, Assistant United States Attorney, for Carla B. Freedman, United States Attorney for the Northern District of New York, Syracuse, NY.

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

District of New York (Glenn T. Suddaby, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the January 23, 2023 judgment of the district

court is AFFIRMED in part and VACATED and REMANDED in part.

Thomas Gladle appeals from a judgment following his guilty plea to

receiving child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A), and

possessing child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B), for which

he received a sentence of 120 months’ imprisonment. On appeal, Gladle argues

that his 120-month term of imprisonment was substantively unreasonable and that

the district court erred by imposing a special condition of supervised release that

prohibited him from accessing the internet unless permitted by the court. We

assume the parties’ familiarity with the underlying facts, procedural history, and

issues on appeal.

2 First, Gladle argues that his 120-month sentence was substantively

unreasonable because it was “derived from the irrational Guideline found in

U.S.S.G. § 2G2.2,” and “failed to properly account for [his] serious chronic medical

conditions.” Gladle Br. at 14–15. We review the substantive reasonableness of a

district court’s sentence “under a deferential abuse-of-discretion standard.”

United States v. Degroate,

(2d Cir. 2019) (internal quotation marks

omitted). We will set aside a district court’s sentence as substantively

unreasonable “only in exceptional cases where its decision cannot be located

within the range of permissible decisions.” United States v. Aumais,

(2d Cir. 2011) (alterations and internal quotation marks omitted). In other

words, we will set aside only those sentences that are “so shockingly high,

shockingly low, or otherwise unsupportable as a matter of law that allowing them

to stand would damage the administration of justice.” United States v. Broxmeyer,

(2d Cir. 2012) (internal quotation marks omitted).

We reject Gladle’s argument that the district court’s 120-month sentence was

substantively unreasonable. As to Gladle’s first contention, there is nothing in the

record to suggest that the district court failed to carefully consider the Guidelines

3 in determining Gladle’s Guidelines range. 1 Indeed, the district court adopted the

Guidelines calculation set forth in the presentence investigation report (“PSR”)

without objection from either party and then varied substantially downward from

the low end of that range – 151 months – in imposing sentence. See United States

v. Caraher,

, 64–65 (2d Cir. 2020) (explaining that, while “[w]e apply the

child pornography guidelines with great care in order to prevent the imposition

of unreasonable sentences,” we do not “require courts to disregard the guidelines

entirely” (internal quotation marks omitted)); United States v. Muzio,

(2d Cir. 2020) (rejecting the proposition that, under this Court’s precedents,

“any sentence for child pornography above the mandatory minimum is

substantively unreasonable”); see also United States v. Salim,

(2d

Cir. 2012) (explaining that “[w]e have never held that a district court is required to

reject an applicable Guideline,” and recognizing that a “judge may give a non-

Guidelines sentence where []he disagrees with the weight the Guidelines assign to

a factor”), superseded by statute on other grounds as stated in United States v. Leroux,

(2d Cir. 2022). The record reflects that the district court carefully

1Although Gladle argues that the district court “mechanically applied” several enhancements that increased his offense level, Gladle Br. at 17, he does not argue that any of these enhancements were unsupported by the record or that the district court committed procedural error in applying them. 4 considered various aggravating aspects of Gladle’s conduct – such as the fact that

he made the pornography he amassed available for others to download, the

images and videos he possessed displayed sadistic and masochistic conduct, and

the images and videos depicted the abuse of very young children – as well as

several mitigating circumstances – including Gladle’s past substance abuse,

minimal criminal history, and troubled childhood circumstances – before arriving

at a below-Guidelines sentence that fell squarely within the range of permissible

decisions. A review of relevant precedents from this Court reveals that the

sentence imposed was consistent with those imposed for comparable conduct

under section 2G2.2. See, e.g., United States v. Clarke,

, 100–01 (2d Cir.

2020) (upholding 120-month sentence where defendant was found guilty of

transporting, receiving, and possessing child pornography); Aumais,

(upholding 121-month sentence for transporting and possessing child

pornography).

Nor does the record support Gladle’s second contention that the district

court’s sentence failed to properly account for his chronic medical conditions. At

sentencing, the district court explicitly confirmed that it considered the

information set forth in the PSR and Gladle’s sentencing submission, which

5 included information regarding his assorted medical maladies and treatments. In

the absence of any contrary indication in the record, we presume that the district

court considered this argument, even if it did not reference it explicitly. See United

States v. Halvon,

(2d Cir. 2022); see also United States v. Villafuerte,

(2d Cir. 2007). Moreover, to the extent Gladle argues that the

district court failed to give his health conditions due weight under

(a)(2)(D), the law is clear that a mere disagreement with how the district

court balanced the section 3553(a) factors is not a sufficient ground for finding an

abuse of discretion. See, e.g., United States v. Verkhoglyad,

(2d Cir.

2008) (“[T]he weight . . . afforded any [section] 3553(a) factor is a matter firmly

committed to the discretion of the sentencing judge.” (internal quotation marks

omitted)). We therefore see no basis for questioning the substantive

reasonableness of the district court’s sentence.

Second, Gladle argues that the district court erred by imposing a special

condition of supervised release that prohibited him from accessing the internet

without court approval. Although neither party objected to the imposition of this

special condition below, on appeal, the government “concedes that its imposition

was plain error under this Court’s precedents” and asks that “[t]he condition . . .

6 be vacated, without prejudice to it being reinstated if circumstances change.” Gov.

Br. at 30.

Where, as here, a defendant did not challenge the imposition of a condition

of supervised release below, we review that challenge for plain error. See United

States v. Dupes,

(2d Cir. 2008). To demonstrate plain error, a

defendant must establish that “(1) there is an error; (2) the error is clear or obvious,

rather than subject to reasonable dispute; (3) the error affected the [defendant]’s

substantial rights; and (4) the error seriously affects the fairness, integrity[,] or

public reputation of judicial proceedings.” United States v. Balde,

(2d Cir. 2019) (internal quotation marks omitted).

A district court retains “wide latitude in imposing conditions of supervised

release” and “may order special conditions of supervised release if they are

reasonably related to the statutory purposes of supervision,” including (1) “the

nature and circumstances of the offense and the history and characteristics of the

defendant”; (2) “the need for the sentence imposed to afford adequate deterrence”;

(3) “the protection of the public”; and (4) “the rehabilitative and medical[-]care

needs of the defendant.” United States v. Birkedahl,

(2d Cir. 2020)

(internal quotation marks omitted).

7 At the same time, a district court must “state on the record the reason for

imposing” a special condition of supervised release, and “the failure to do so is

error” unless “the district court’s reasoning is self-evident in the record.” United

States v. Betts,

(2d Cir. 2018) (internal quotation marks omitted).

Where a supervised-release condition implicates a constitutional right – i.e., a

convicted defendant’s First Amendment right to access the internet – we “conduct

a more searching review,” United States v. Eaglin,

(2d Cir. 2019), and

require that the special condition be “supported by particularized findings that it

does not constitute a greater deprivation of liberty than reasonably necessary to

accomplish the goals of sentencing,” United States v. Matta,

(2d

Cir. 2015) (internal quotation marks omitted). This Court has specifically held that

“only highly unusual circumstances will [warrant] a total [i]nternet ban imposed

as a condition of supervised release.” Eaglin,

; see also United States

v. Sofsky,

(2d Cir. 2002) (vacating a special condition prohibiting

defendant from using the internet because it “inflict[ed] a greater deprivation on

[defendant’s] liberty than [was] reasonably necessary”).

Here, although the district court explained how an internet ban was

reasonably related to the purposes of Gladle’s sentencing, it failed to point to any

8 highly unusual circumstances that would justify the condition, and the record

does not appear to suggest that such facts are present. See, e.g., Sofsky,

(noting that internet bans were upheld in cases where defendant used the

internet to distribute child pornography that he had produced and where

defendant used the internet to contact a minor). Accordingly, we agree with the

parties that the special condition was not justified, and its imposition constituted

plain error. Accordingly, we vacate the special condition prohibiting Gladle’s use

of the internet, and remand to the district court for the limited purpose of

determining whether any highly unusual circumstances justify the reimposition

of this condition – or another less restrictive condition – which must be supported

by particularized findings based on the record.

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

without merit. Accordingly, we AFFIRM in part and VACATE in part the

judgment of the district court, and the case is REMANDED.

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

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