United States v. Salazar

1

UNITED STATES OF AMERICA, Appellee, v. MIGUEL SALAZAR, Defendant-Appellant.

No. 22-1385-cr

United States Court of Appeals, Second Circuit

July 6, 2023

UNPUBLISHED OPINION

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 sixth day of July, two thousand twenty-three.

Appeal from a judgment of the United States District Court for the Eastern District of New York (DeArcy Hall, J.).

FOR APPELLEE: EMILY DEAN, Assistant United States Attorney (Jo Ann M. Navickas, Assistant United States Attorney, on the brief), for Breon Peace, United States Attorney for the Eastern District of New York, Brooklyn, NY.

FOR DEFENDANT-APPELLANT: SARAH BAUMGARTEL, Federal Defenders of New York, Inc., New York, NY.

PRESENT: DEBRA ANN LIVINGSTON, DENNY CHIN, MARIA ARAUJO KAHN Circuit Judges.

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED IN PART and VACATED IN PART and the case is REMANDED.

Defendant-Appellant Miguel Salazar appeals from a judgment of the district court convicting him, upon a guilty plea, of one count of possessing child pornography. The district court sentenced Salazar principally to thirty months' imprisonment and five years' supervised release. The court imposed numerous standard and special conditions of supervised release, two of which Salazar now challenges on appeal. One condition apparently limits Salazar to possessing a single internet-capable electronic device and authorizes the U.S Probation Office ("Probation") to monitor all the data on that device at any time and for any reason. The other condition prohibits Salazar from viewing legal sexually explicit content on any internet-capable device.

We assume the parties' familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

The facts concerning Salazar's offense conduct are not in dispute. In early 2020, federal investigators became aware that a social media user had uploaded three images depicting child sexual abuse. After determining that the user was Salazar, investigators obtained and executed a search warrant for Salazar's home in Queens, New York. Salazar confessed to viewing child pornography on the so-called "dark web" after searching for drugs; he also admitted he had uploaded the images of child sexual abuse. Salazar consented to the search of his Google Drive account, and agents seized five electronic devices from his bedroom. In total, the devices and account contained seventy-one images and five videos of child pornography. At the time he first accessed child pornography, Salazar was nineteen years old.

Salazar was indicted on April 20, 2021, and arrested the following week. On June 29, 2021, pursuant to a plea agreement, he pleaded guilty to the sole count of the indictment possession of child pornography.

Prior to sentencing, Probation prepared a detailed presentence investigation report (the "PSR"). The PSR describes Salazar's troubled childhood and family life, his history of abusing alcohol and illicit substances, and his unsteady participation in psychotherapy and substance abuse treatment programs. At sentencing, neither the Government nor Salazar objected to any part of the PSR, and the district court adopted the factual recitations set forth in the PSR along with its calculation of the applicable sentencing range under the U.S. Sentencing Guidelines.

After discussing the length of Salazar's custodial sentence and term of supervised release, the district court turned to the conditions of supervised release. Several proposed conditions generated lengthy discussion, and it became evident that defense counsel had not been provided with the proposed conditions before sentencing.

The district court read the proposed conditions, including the two that are at issue on this appeal. First, Salazar was required to "cooperate with [Probation's] Computer and Internet Management Monitoring Program," App'x at 112, pursuant to which Salazar "may be limited to possessing only one personal Internet-capable device," id. at 113. In connection with this condition, Probation was permitted to "capture and analyze all data processed by and/or contained on the device, including the geolocation of the device" and "may access the device . . . at any time with or without suspicion that Mr. Salazar[] violated the conditions of his release." Id. at 112-13. Second, Salazar was prohibited from using a computer or other internet-capable or electronic device to access "any visual depiction of . . . 'sexually explicit content,'" as defined in 18 U.S.C. § 2256. Id. at 111-12.

Salazar's counsel expressed concern about both conditions, indicating Probation had not provided a draft of the conditions in advance of the hearing.^[1] As to the monitoring condition, counsel objected that the geolocation provision was "overly broad" and lacked a nexus to Salazar's conduct. Id. at 122-23. The district court declined to change the condition. As to the condition about sexually explicit content, counsel again objected that the condition was not related to the offense to which Salazar had pleaded guilty. The district court observed that Probation had "found there is a greater likelihood for [child pornography] conduct to reoccur where the individual . . .is permitted to engage in adult pornography." Id. at 118. The court added that the condition was warranted because Salazar's "addiction issues . . . kind of propel his desire to view child pornography." Id. at 119. The district court modified the condition, however, to provide for the possibility that the condition might be discontinued "upon a finding by [a licensed] mental health provider that it's not necessary." Id. at 120. The district court proceeded to impose Salazar's sentence, including the conditions regarding monitoring and sexually explicit content.

We generally review special conditions of supervised release for abuse of discretion. See United States v. Birkedahl, 973 F.3d 49, 53 (2d Cir. 2020). Where a defendant fails to object contemporaneously, however, "we review only for plain error." United States v. Green, 618 F.3d 120, 122 (2d Cir. 2010) (per curiam). Nevertheless, where a defendant lacks notice of the challenged conditions, as here, we conduct "a less rigorous plain error review" to unobjected-to conditions. Id.; accord United States v. Sofsky, 287 F.3d 122, 125 (2d Cir. 2002). At Salazar's sentencing hearing, his counsel raised only a narrow objection to the monitoring condition but objected comprehensively to the condition relating to sexually explicit content. Accordingly, we review Salazar's broader objections to the computer monitoring conditions, which were not previously raised, under the relaxed plain error standard, and we review the sexually explicit content condition for abuse of discretion.

"A district court is required to make an individualized assessment when determining whether to impose a special condition of supervised release, and to state on the record the reason for imposing it." United States v. Betts, 886 F.3d 198, 202 (2d Cir. 2018). "There must be a reasonable relationship between the factors considered by the district court in the individualized assessment and the special condition of release being challenged," and the condition "must impose no greater restraint on liberty than is reasonably necessary to accomplish sentencing objectives." United States v. Haverkamp, 958 F.3d 145, 151 (2d Cir. 2020).

We have repeatedly cautioned against computer monitoring conditions that impose unnecessarily severe restrictions on releasees' liberty. 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, 369 F.3d 173, 190 (2d Cir. 2004). Moreover, the Supreme Court has observed that cell phones are "indispensable to participation in modern society," Carpenter v. United States 138 S.Ct. 2206, 2220 (2018), and we have held that special...