23-6885-cr United States v. O’Bryan

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 28th day of June, two thousand twenty-four.

PRESENT: PIERRE N. LEVAL, RAYMOND J. LOHIER, JR., EUNICE C. LEE, Circuit Judges. ------------------------------------------------------------------ UNITED STATES OF AMERICA,

Appellee,

v. No. 23-6885-cr

THOMAS O’BRYAN,

Defendant-Appellant. ------------------------------------------------------------------ FOR APPELLANT: Molly K. Corbett, Assistant Federal Public Defender, Office of the Federal Public Defender for the Northern District of New York, Albany, NY

FOR APPELLEE: Rajit Singh Dosanjh, Jonathan S. Reiner, Assistant United States Attorneys, 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 judgment of the District Court is AFFIRMED in part

and the case is REMANDED in part for further proceedings consistent with this

order.

Defendant-Appellant Thomas O’Bryan appeals from a judgment of the

United States District Court for the Northern District of New York (Suddaby, J.)

convicting him, following a guilty plea, of two counts of possession and one

count of distribution of child sexual abuse material (“CSAM”) in violation of

18 U.S.C. § 2252A(a)(2)(A) and (a)(5)(B). The District Court sentenced O’Bryan

2 principally to 110 months’ imprisonment followed by 15 years’ supervised

release. It also imposed eight special conditions of supervised release, three of

which O’Bryan challenges on appeal. The first two (Special Conditions 2 and 3)

limit O’Bryan’s proximity to children in public places. The other (Special

Condition 6) limits O’Bryan to possessing one personal internet-capable

electronic device. The District Court’s final oral pronouncement imposing

Special Condition 6, however, diverges from its written judgment. 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 in part, vacate in part, and remand.

I. Place Restrictions (Special Conditions 2 and 3)

O’Bryan first contends that the District Court did not adequately justify its

imposition of Special Condition 2 (“You shall not go to, or remain at, any place

where you know children under the age of 18 are likely to congregate, including

parks, schools, playgrounds, and childcare facilities without the permission of

the probation officer”) and Special Condition 3 (“You shall not go to, or remain

at, a place for the primary purpose of observing or contacting children under the

age of 18”). See App’x 136.

3 “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) (quotation marks omitted). In imposing a condition,

“[a] district court is required to make an individualized assessment . . . and to

state on the record the reason for imposing it.” United States v. Betts,

(2d Cir. 2018). Because O’Bryan was notified of the challenged special

conditions prior to sentencing but failed to object to them, we review his

challenge for plain error. United States v. Dupes,

(2d Cir. 2008).

“[R]eversal for plain error should be used sparingly, solely in those

circumstances in which a miscarriage of justice would otherwise result.” United

States v. Villafuerte,

(2d Cir. 2007) (quotation marks omitted).

Here, the District Court explained that the conditions it imposed were

“necessary and justified” to “promote rehabilitation” and were “based upon the

nature of the instant offense as well as the history and characteristics of the

defendant,” which included “possession and distribution of . . . [t]wenty-one

4 videos and one image depicting child pornography” during an “approximately

seven-month period.” App’x 119. The District Court emphasized that O’Bryan

viewed and distributed material involving the sadistic and masochistic sexual

abuse of very young children, “admitted to masturbating while viewing” CSAM,

and “learn[ed] specific language to seek out and access” CSAM through a social

media application. App’x 119–20. We find no plain error in the District Court’s

explanations in support of these conditions.

To the extent O’Bryan claims that the District Court could not reasonably

impose these two special conditions given his “lack of personal history of any

contact or inappropriate contact with minors,” Appellant’s Br. 21, we disagree.

The federal criminal code authorizes the District Court to impose a special

condition “reasonably related” to “the nature and circumstances of the offense and

the history and characteristics of the defendant.”

(d)(1),

3553(a)(1) (emphasis added). The District Court did not plainly err in finding

that the restrictions were reasonably necessary in view of the volume and nature

of CSAM O’Bryan possessed and distributed. See United States v. MacMillen,

(2d Cir. 2008). Thus, the District Court did not plainly err in imposing

Special Conditions 2 and 3.

5 II. Internet-Capable Device Restriction (Special Condition 6)

At sentencing, the District Court initially pronounced Special Condition 6

as follows: “You may be limited to possessing only one personal internet-capable

device to facilitate U.S. Probation Office’s ability to effectively monitoring [sic]

internet-related activities.” App’x 123. Both defense counsel and the

Government objected because the condition impermissibly delegated decision-

making authority to the Probation Office. See United States v. Matta,

(2d Cir. 2015). In response, the District Court orally amended the condition

and clarified that it was “going to control this special condition, not the

probation office.” App’x 126. O’Bryan did not further object. But on appeal he

now argues that the “limit of one personal internet access device for Mr.

O’Bryan’s use unreasonably infringes on a protected liberty interest.”

Appellant’s Br. 24.

Reviewing for plain error, we disagree. Monitoring conditions “must be

narrowly tailored, and not sweep so broadly as to draw a wide swath of

extraneous material into [their] net.” United States v. Lifshitz,

(2d Cir. 2004). But “[w]e do not suggest that such a severe restraint on internet

6 access could never be warranted,” only that “it would require particularized

justification by the court.” United States v. Kunz,

(2d Cir. 2023).

Here, the District Court explained that it imposed the Computer and

Internet-Monitoring program as a condition because, among other things, it was

the “best” and “least restrictive” way to “protect the public from further crimes”

by O’Bryan short of a complete internet ban. App’x 120. The single internet-

capable device restriction, the District Court found, was the “only effective way”

to “appropriately monitor” O’Bryan’s internet activity and was also

“warrant[ed]” by O’Bryan’s “crime of conviction,” which he perpetrated on

multiple electronic devices. App’x 125.

The District Court described the one-device limitation as an “initial step”

of the computer monitoring program, which could be lifted if O’Bryan complied

with the restrictions on his internet use:

if they [Probation] tell me, which I expect them to do in communicating continuously with the Court, that they feel that he should have assess [sic] to more than one, that there’s no threats, it’s perfectly appropriate, I will authorize that and allow him to have two, three or whatever. They are at a point where they feel like they can manage and do so effectively and not risk it, any further criminal behavior. So that’s my ruling.

7 App’x 126. The provisional and temporary nature of the one-device limitation

renders it more particularized and less restrictive than it might otherwise have

been. But we do not address whether the District Court should have provided

further explanation or imposed a less restrictive condition on the number of

internet-capable devices O’Bryan may possess. Instead, on plain error review,

we simply find no “clear” or “obvious” error here, United States v. Olano,

(1993), given the lack of controlling precedent describing the

“particularized findings” that are necessary in this particular context of limiting a

supervisee to just one internet-connected device, and given the District Court’s

effort to link the one-device limitation to the circumstances of O’Bryan’s case.

Finally, although the District Court orally amended Special Condition 6

following the parties’ objections, the written judgment reflects its pre-objection

form. We therefore direct the District Court, on remand, to vacate Special

Condition 6 of the written judgment and impose in its place a version

conforming to the ultimate oral pronouncement. See United States v. Traficante,

(2d Cir. 2020).

We have considered O’Bryan’s remaining arguments and conclude that

they are without merit. For the foregoing reasons, the judgment of the District

8 Court is AFFIRMED in part and the case is REMANDED in part with

instructions to vacate and amend the written judgment to conform to the

ultimate oral pronouncement as to Special Condition 6.

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

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