UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2001
Argued: December 5, 2001 Decided: March 28, 2002
Errata Filed: April 11, 2002
Docket No. 01-1097
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UNITED STATES OF AMERICA,
Appellee,
v.
GREGORY SOFSKY,
Defendant-Appellant.
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Before: OAKES, NEWMAN, and F. I. PARKER, Circuit Judges.
Appeal from a judgment of conviction, of the United States
District Court for the Eastern District of New York (Allyne Ross,
District Judge), imposing a sentence for receiving child pornography,
in violation of 18 U.S.C. 2252A(a)(2)(A), that included, as a
condition of supervised release, a prohibition on using a computer or
the Internet without approval of probation officer.
Condition of supervised release vacated, and case remanded
for imposition of more restricted condition.
Yuanchung Lee, The Legal Aid Society,
Federal Defender Division Appeals
Bureau, New York, N.Y., for
Defendant-Appellant.
Adam H. Schuman, Asst. U.S. Atty.,
Brooklyn, N.Y. (Alan Vinegrad, U.S.
Atty., Peter A. Norling, Asst. U.S.
Atty., Brooklyn, N.Y., on the brief),
for Appellee.
JON O. NEWMAN, Circuit Judge.
This opinion concerns only a challenge to a condition of
supervised release included as part of the sentence of ten years and
one month imposed on Gregory Sofsky by the District Court for the
Eastern District of New York (Allyne R. Ross, District Judge) after
Sofsky pled guilty to receiving child pornography in violation of 18
U.S.C. 2252A(a)(2)(A). The condition prohibits Sofsky from using a
computer or the Internet without the approval of his probation officer.
We conclude that the condition exceeds even the broad discretion of the
sentencing judge with respect to conditions of supervised release, and
must be substantially modified. Sofsky's challenges to his conviction
have been rejected in a summary order filed today.
Background
Prior to the entry of a guilty plea on the third day of
trial, the Government presented overwhelming evidence that Sofsky had
received on his home computer via the Internet more than 1,000 images
of child pornography in the form of both still and moving pictures.
Some of the images had been transferred to CD-ROM disks. Sofsky had
also used the Internet to exchange images of child pornography with
other (apparently like-minded) individuals at their computers. There
was no claim that Sofsky had ever produced any of the images he
received or exchanged with others.
At sentencing, Judge Ross, following the recommendation of
the presentence report ("PSR"), determined that the adjusted offense
level under the Sentencing Guidelines was 32. In Criminal History
Category I, level 32 prescribes a sentence range of 121 to 151 months.
Judge Ross imposed a sentence of 121 months to be followed by a three-
year term of supervised release. In addition to the standard
conditions of supervised release, the Court imposed four special
conditions: (1) the defendant must participate in mental health
treatment, including a program for sexual disorders, (2) the defendant
must permit a search of his premises on reasonable suspicion that
contraband or evidence of a violation of a condition of supervision may
be found, (3) the defendant may not "access a computer, the Internet,
or bulletin board systems at any time, unless approved by the probation
officer," and (4) the defendant must not view, purchase, or possess
child pornography materials. Only the third condition is challenged
on this appeal.
Discussion
Plain error. Because Sofsky did not object at sentencing to
the imposition of the conditions of supervised release, the Government
initially contends that his challenge to the third condition should be
reviewed under the plain error standard set forth in Fed. R. Crim. P.
52(b). See Jones v. United States, 527 U.S. 373, 389 (1999); Johnson
v. United States, 520 U.S. 461, 466-67 (1997); United States v. Olano,
507 U.S. 725, 732 (1993). Jones, Johnson, and Olano concerned alleged
errors occurring during the course of a trial. As to unobjected to
errors occurring at sentencing, we have stated that plain error review
applies, see United States v. Keppler, 2 F.3d 21, 23 (2d Cir. 1993),
and have often applied such review, see, e.g., United States v. Thomas,
274 F.3d 655, 666-72 (2d Cir. 2001 (in banc)); United States v.
Martinez-Rios, 143 F.3d 662, 675-76 (2d Cir. 1998). On occasion,
however, we have reviewed unobjected to sentencing errors without
rigorous application of plain error standards. In United States v.
Pico, 966 F.2d 91 (2d Cir. 1992), we noticed and corrected an
unobjected to sentencing error concerning supervised release with only
the most conclusory compliance with Rule 52(b). Id. at 92 (merely
noting that the error was "clear"). We have entertained on an appeal
by the Government an unobjected to sentencing error without any
consideration of plain error standards because the Government had no
prior notice that the challenged aspect of the sentence would be
imposed. See United States v. Alba, 933 F.2d 1117, 1120 (2d Cir. 1991)
(entertaining challenge to the sentencing judge's reliance on two
allegedly impermissible factors in making a downward departure). We
have also noted that noticing unobjected to errors that occur at trial
precipitates an entire new trial that could have been avoided by a
timely objection, whereas correcting a sentencing error results in, at
most, only a remand for resentencing, or, as in this case, for a
modification of the allegedly erroneous condition of supervised
release. See United States v. Leung, 40 F.3d 577, 586 n.2 (2d Cir.
1994); United States v. Baez, 944 F.2d 88, 90 n.1 (2d Cir. 1991).
Accordingly, although the Government is correct that plain error review
applies, it appears that in the sentencing context there are
circumstances that permit us to relax the otherwise rigorous standards
of plain error review to correct sentencing errors.
In the pending appeal, the challenged condition of supervised
release was not recommended in the PSR, and Sofsky had no prior
knowledge that it would be imposed. Both because the alleged error
relates only to sentencing and because Sofsky lacked prior notice, we
will entertain his challenge without insisting on strict compliance
with the rigorous standards of Rule 52(b).
The merits. A sentencing court may order a special condition
of supervised release that is "reasonably related" to several of the
statutory factors governing the selection of sentences, "involves no
greater deprivation of liberty than is reasonably necessary" for
several statutory purposes of sentencing, and is consistent with
Sentencing Commission policy statements. 18 U.S.C. 3583(d). Although
the discretion thus conferred is broad, we have cautioned that we will
"carefully scrutinize unusual and severe conditions." United States v.
Doe, 79 F.3d 1309, 1319 (2d Cir. 1996) (internal quotation marks
omitted).
We previously considered a sentencing component that
prohibited access to a computer or the Internet in United States v.
Peterson, 248 F.3d 79, 82-84 (2d Cir. 2001). The restriction was
imposed as a condition of probation for a defendant convicted of
larceny because of the defendant's prior state conviction for incest
and his accessing of adult pornography on his home computer. Noting
that "[c]omputers and Internet access have become virtually
indispensable in the modern world of communications and information
gathering," id. at 83, we ruled the condition unreasonable. Appellate
courts considering a similar restriction imposed upon defendants
convicted of child pornography offenses have reached different
conclusions. Compare United States v. White, 244 F.3d 1199, 1205-07
(10th Cir. 2001) (invalidating and requiring modification of
restriction imposed on defendant who used Internet to receive child
pornography), with United States v. Paul, 274 F.3d 155, 169 (5th Cir.
2001) (upholding restriction imposed on defendant who produced child
pornography and used Internet to distribute it), and United States v.
Crandon, 173 F.3d 122, 127-28 (3d Cir. 1999) (upholding restriction
imposed on defendant who used Internet to contact 14-year-old girl with
whom he had sexual relations and photographed such conduct).
We appreciate the Government's point that permitting Sofsky
access to a computer and the Internet after serving his ten-year
sentence can facilitate continuation of his electronic receipt of child
pornography, but we are more persuaded by the observation in Peterson
that "[a]lthough a defendant might use the telephone to commit fraud,
this would not justify a condition of probation that includes an
absolute bar on the use of telephones." Peterson, 248 F.3d at 83. The
same could be said of a prohibition on the use of the mails imposed on
a defendant convicted of mail fraud. A total ban on Internet access
prevents use of e-mail, an increasingly widely used form of
communication and, as the Tenth Circuit noted, prevents other common-
place computer uses such as "do[ing] any research, get[ting] a weather
forecast, or read[ing] a newspaper online." White, 244 F.3d at 1206.
Although the condition prohibiting Sofsky from accessing a computer or
the Internet without his probation officer's approval is reasonably
related to the purposes of his sentencing, in light of the nature of
his offense, we hold that the condition inflicts a greater deprivation
on Sofsky's liberty than is reasonably necessary.
The Government contended at oral argument that the
restriction must be broad because a restriction limited to accessing
pornography would be extremely difficult for the probation officer to
enforce without constant monitoring of Sofsky's use of his computer.
There are several responses. First, to the extent that even a broad
restriction would be enforced by the probation officer, monitoring
(presumably unannounced) of Sofsky would be required to check if he was
using a computer at all. Second, a more focused restriction, limited
to pornography sites and images, can be enforced by unannounced
inspections of Sofsky's premises and examination of material stored on
his hard drive or removable disks. Cf. United States v. Knights, 122
S. Ct 587, 591-93 (2001) (rejecting Fourth Amendment challenge to
search, on reasonable suspicion, of probationer's premises). Finally,
the Government can check on Sofsky's Internet usage with a sting
operation--surreptitiously inviting him to respond to Government placed
Internet ads for pornography. See White, 244 F.3d at 1201.
Conclusion
For all the above reasons, the condition of supervised
release prohibiting all computer and Internet access is vacated, and
the case is remanded for entry of a more restricted condition.
