17‐943‐cr
United States v. Donohue
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 COURTʹS 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 ʺSUMMARY ORDERʺ). 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 15th day of February, two thousand eighteen.
PRESENT: RALPH K. WINTER,
GERARD E. LYNCH,
DENNY CHIN,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
v. 17‐943‐cr
JUSTIN DONOHUE,
Defendant‐Appellant.
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FOR APPELLEE: Lisa M. Fletcher, Paul D. Silver, Assistant
United States Attorneys, for Grant C. Jaquith,
Acting United States Attorney for the Northern
District of New York, Albany, New York.
FOR DEFENDANT‐APPELLANT: James P. Egan, Assistant Federal Public
Defender, for Lisa A. Peebles, Federal Public
Defender for the Northern District of New
York, Syracuse, New York.
Appeal from the United States District Court for the Northern District of
New York (Mordue, J.)
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is VACATED IN
PART and the case is REMANDED for further proceedings.
Defendant‐appellant Justin Donohue appeals from a judgment entered
March 23, 2017, revoking his supervised release and sentencing him to 10 monthsʹ
imprisonment followed by 20 yearsʹ supervised release. As a condition of Donohueʹs
supervised release, the district court prohibited Donohue from having any
unsupervised contact with any minor, including his nine‐year‐old son. On appeal,
Donohue challenges this condition on the basis that the district court failed to
adequately explain the need for this condition, the condition is unrelated to the
sentencing factors in 18 U.S.C. § 3553(a), and the restriction on contact with his son
amounts to a greater deprivation of his liberty than necessary. We assume the partiesʹ
familiarity with the underlying facts, procedural history, and issues on appeal.
BACKGROUND
On February 8, 2008, Donohue pleaded guilty to receipt of child
pornography in violation of 18 U.S.C. § 2252A(a)(2)(A). He was sentenced to 10 yearsʹ
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imprisonment to be followed by 20 yearsʹ supervised release. As part of the terms of his
supervised release, the court imposed Special Condition 1:
The defendant shall not have any direct contact with a person under the age 18
unless it is supervised by a person approved of by the probation officer. The
defendant shall not have indirect contact with a person under the age of 18
through another person or through a device (including a telephone, computer,
radio, or other means) unless it is supervised by a person approved of by the
probation officer. The defendant shall reasonably avoid and remove himself
from situations in which the defendant has any other form of contact with a
minor. J. App. 47.
Donohue completed his sentence and was released to supervision on May
2, 2016. On June 3 and 4, 2016, however, Donohue violated the terms of his supervised
release by viewing sexually explicit videos of adults and nude pictures of children
under the age of 18. In February 2017, Donohue again violated the terms of his
supervised release by using his employerʹs computer to search for child pornography.
On February 28, 2017, the Probation Office filed a revocation petition with
the district court alleging that Donohue violated conditions of his supervised release by:
(1) committing a federal offense by making knowingly false statements on three
monthly probation reports denying that he (a) accessed the internet without
authorization and (b) viewed pornography; (2) conducting internet image searches
outside of his approved employment computer use; and (3) viewing images depicting
sexually explicit conduct.
In anticipation of the revocation proceeding, Donohueʹs counsel submitted
a letter to the district court requesting a modification to Special Condition 1 in the event
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the court imposed a new term of supervised release at the revocation hearing. The
letter explained that Donohue ʺhas a nine‐year‐old son who lives in Virginia,ʺ and
ʺ[t]hey were able to build a relationship while [Donohue] was incarcerated, but have
not been able to speak since [he] began his term of supervised release.ʺ J. App. 59. It
also stated that Donohue ʺwould like to be able to talk to his son on the phone or via
Skype, and perhaps eventually be able to receive visits from him.ʺ J. App. 59.
At the revocation proceeding on March 21, 2017, Donohue admitted to the
three violations. Before the proceedings turned to sentencing, Donohueʹs counsel again
requested that Donohue receive permission to interact with his nine‐year‐old son. The
district court explained that ʺ[a]ll [Donohue] has to do is discuss it with [the Probation
Office] and work out a schedule and how it will be done.ʺ J. App. 64.
Donohue was then sentenced to a 10‐month term of imprisonment and 20
yearsʹ supervised release. Among other conditions of supervised release, the district
court reimposed the condition prohibiting Donohue from having any unsupervised
contact with minors, redesignating it as Special Condition 2.
After the imposition of the sentence, defense counsel asked for
clarification on Special Condition 2 and expressed ʺconcern[ ] how that would affect
[Donohueʹs] relationship with his own children.ʺ J. App. 69‐70. The district court
instructed Donohue that he has ʺgot to work with the probation officer on that,ʺ and
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that ʺ[a]s it stands right now, thereʹs no contact permitted, he will see [the probation
officer] and will discuss it and work out a program for him.ʺ J. App. 70.
Judgment was entered March 23, 2017. This appeal followed.
DISCUSSION
A. Applicable Law
We review the imposition of a special condition of supervised release for
abuse of discretion. United States v. Peterson, 248 F.3d 79, 82 (2d Cir. 2001). 1 Although
sentencing courts have broad discretion to tailor conditions of supervised release, this
discretion is not ʺuntrammeled,ʺ United States v. Amer, 110 F.3d 873, 883 (2d Cir. 1997),
and we ʺwill carefully scrutinize unusual and severe conditions,ʺ United States v. Myers,
426 F.3d 117, 124 (internal quotation marks and citation omitted).
A sentencing court may impose special conditions of supervised release,
but the conditions (1) must be reasonably related to certain prescribed sentencing
factors in 18 U.S.C. § 3553(a), including ʺthe nature and circumstances of the offense and
the history and characteristics of the defendant,ʺ id. § 3553(a)(1), the need to deter
criminal conduct, id. § 3553(a)(2)(B), the need to ʺprotect the public from further crimes
of the defendant,ʺ id. § 3553(a)(2)(C), and the need to ʺprovide the defendant with
needed educational or vocational training, medical care, or other correctional treatment
1 The Government argues that Donohue did not ʺobject in the district courtʺ to the imposition of
the special condition at issue, and asks us to review Donohueʹs sentence for plain error. We reject the
argument that the plain error standard applies. While Donohueʹs objection could have been clearer, he
sought a modification of the condition prior to sentencing, and at sentencing, his counsel repeatedly
asked for clarification of the condition and expressed concern about how it would affect Donohueʹs
relationship with his son.
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in the most effective manner,ʺ id. § 3553(a)(2)(D); (2) must not involve any greater
deprivation of liberty than is reasonably necessary to achieve the purposes of
sentencing; and (3) must be consistent with any pertinent policy statements issued by
the Sentencing Commission. 18 U.S.C. § 3583(d).
Because it is well established that a parentʹs interest in maintaining a
relationship with his or her child is protected by the Due Process Clause of the
Fourteenth Amendment, Wilkinson v. Russell, 182 F.3d 89, 103‐04 (2d Cir. 1999), a
condition of supervised release that prevents a father from seeing his son outside the
presence of an approved monitor is a severe one subject to careful scrutiny, see Myers,
426 F.3d at 126 (explaining that we must ʺcarefully examineʺ a special condition that
implicates a constitutionally protected interest).
The constitutional privileges attached to the parent‐child relationship are
not, however, absolute. Id. at 125. Indeed, due process protection extends to a non‐
custodial, biological parent only where the parent has demonstrated ʺa full commitment
to the responsibilities of parenthood by coming forward to participate in the rearing of
[the] child.ʺ Lehr v. Robertson, 463 U.S. 248, 261 (1983) (internal quotation marks and
brackets omitted).
In United States v. Myers, we held that where a district court imposes a
condition of supervised release that restricts contact with a defendantʹs child, it must
answer the following questions: ʺ(1) what the goal of the condition is; (2) if the goal is
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to protect [a defendantʹs] own child, whether an adequate record can be developed to
support it; (3) whatever the goal of the condition, whether [the defendant] has any
constitutionally protected right to a relationship with his child; and (4) what terms of
the condition are necessary and not a greater deprivation of any identified liberty
interests than reasonable to achieve the sentencing goal.ʺ 426 F.3d at 130.
B. Application
Donohue argues that the district court failed to explain why the condition
was reasonably necessary to achieve the goals of sentencing. Further, he contends that
the court failed to tailor the condition to provide no greater deprivation of liberty than
necessary and instead delegated to the probation office any decision as to whether and
how to supervise Donohueʹs contact with his child.
We conclude that remand is necessary. Whether the purpose of the
condition was to protect other children or to protect Donohueʹs son, the district court
was required to create a full record to determine whether Donohue has any parental
rights that triggered due process concerns. See Myers, 426 F.3d at 128. The district court
did not develop an adequate record in this case.
First, the court did not explicitly identify the sentencing goal of the
condition. The court may very well have prohibited any contact with minors because
Donohue had previously had a sexual relationship with a person under the age of 18,
and his conviction related to the receipt of a substantial amount of child pornography,
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establishing his sexual interest in children. Although the ʺ[p]rotection of other children
would therefore be a reasonable and well‐supported goal,ʺ Myers, 426 F.3d at 127,
consistent with ʺthe need to protect the public from further crimes of the defendant,ʺ
U.S.S.G. § 5D1.3(b)(1)(C), the district court was still required to ʺmake findings as to
whether [Donohue] has any constitutionally protected liberty interest in his relationship
with his son,ʺ Myers, 426 F.3d at 127. It did not do so.
Second, it is not clear from the record whether the goal of the condition
was to protect Donohueʹs son. As we explained in Myers, if the goal of the condition is
to protect the child, the court ʺwill need to develop a record demonstrating the danger
to that child.ʺ Id. at 127‐28. Here, the district court did not make any specific findings
as to whether Donohue posed a threat to his own son, and, if so, how or why. Although
Donohue was convicted for receiving child pornography, including pornography
involving young boys, the record does not indicate that he had any sexual interest in his
son or any interest in using his son to gain access to other children.
Third, the record is not clear as to whether Donohueʹs relationship with
his son ʺis sufficiently established to merit constitutional protection.ʺ Myers, 426 F.3d at
128. Both Donohue and the Government concede that there remains an open question
whether Donohue fits the description of a ʺnon‐custodial, biological parent who
demonstrates a full commitment to the responsibilities of parenthood,ʺ such that the
relationship triggers due process concerns. Id. (internal quotation marks omitted).
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Donohue maintains that he had a relationship with his son while incarcerated and
wishes to continue such a relationship. The Government, on the other hand, alleges
that Donohueʹs son lives out of state, he has had no active role in his upbringing, and he
has not officially established his paternity. We cannot determine from the record
whether Donohueʹs relationship with his son is constitutionally protected.
Lastly, we are unable to determine whether the terms of the condition
represent a ʺgreater deprivation of liberty than is reasonably necessaryʺ without
knowing whether the restriction on contact implicates a constitutionally protected
interest. 18 U.S.C. § 3583(d)(2); see Myers, 426 F.3d at 128 (explaining that if a
fundamental liberty interest is implicated by a special condition of supervised release,
ʺour application of [this standard] must reflect . . . heightened constitutional concernsʺ).
Assuming Donohue does have a protected interest, the district court failed to articulate
why such a severe and absolute intrusion on the fundamental right to familial
association was necessary under the circumstances. See Lehr, 463 U.S. at 261 (an
individualʹs ʺinterest in personal contact with his child acquires substantial protection
under the Due Process Clauseʺ).
Rather than tailoring the condition, the court broadly prohibited any
contact with minors and delegated the entirety of Donohueʹs contact with his son ‐‐ if
any ‐‐ to the probation office. See Peterson, 248 F.3d at 85 (2d Cir. 2001) (ʺIf [defendant]
is required to participate in a mental health intervention only if directed to do so by his
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probation office, then this special condition constitutes an impermissible delegation of
judicial authority to the probation officer. On the other hand, if the District Court was
intending nothing more than to delegate to the probation officer details with respect to
the selection and schedule of the program, such delegation was proper.ʺ (internal
citations omitted)). The district court did not have the discretion to delegate this
responsibility under the circumstances. See Myers, 426 F.3d at 130 (ʺ[T]he district court
may not improperly delegate [the determination of whether a special condition is
necessary] to the probation office.ʺ (emphasis omitted)).
Accordingly, we conclude that it was not within the discretion of the
district court to impose such a broad condition of supervised release without
developing an adequate record to support its validity. We therefore remand the case to
the district court for resentencing only with respect to Special Condition No. 2. If
Donohue establishes that he has a right to associate with his son, then the district court
will need to tailor any sentencing conditions to infringe that right no more than
reasonably necessary.
Accordingly, we VACATE IN PART and REMAND for further
proceedings.
FOR THE COURT:
Catherine OʹHagan Wolfe, Clerk
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