17‐1108‐cr
United States v. Ahearn
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 17th day of April, two thousand nineteen.
PRESENT: JOHN M. WALKER, JR.,
GUIDO CALABRESI,
DENNY CHIN,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
v. 17‐1108‐cr
DAVID AHEARN,
Defendant‐Appellant.
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FOR APPELLEE: RAJIT S. DOSANJH, Assistant United
States Attorney (Lisa M. Fletcher,
Assistant United States Attorney, on the
brief), for Grant C. Jaquith, United States
Attorney for the Northern District of
New York, Syracuse, New York.
FOR DEFENDANT‐APPELLANT: JAMESA J. DRAKE, Drake Law, LLC,
Auburn, Maine.
Appeal from the United States District Court for the Northern District of
New York (McAvoy, J.).
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 for further proceedings
consistent with this order.
Defendant‐appellant David Ahearn appeals from his judgment of
conviction for attempted coercion and enticement of a minor in violation of 18 U.S.C.
§ 2422(b), for which he was principally sentenced to 120 monthsʹ imprisonment and 15
yearsʹ supervised release. In his pro se brief, Ahearn argues that his offense conduct
was beyond the intended scope of § 2242(b), and that the statute is unconstitutionally
overbroad and an invalid exercise of Congressʹs Commerce Clause powers. In his
counseled brief, Ahearn argues that the district court erred in imposing as a special
condition of supervised release that Ahearn participate in a substance abuse treatment
program. We assume the partiesʹ familiarity with the underlying facts, the procedural
history of the case, and the issues on appeal.
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Ahearn pleaded guilty on September 14, 2015, and a judgment of
conviction was entered on July 20, 2016. He filed his notice of appeal pro se on April
17, 2017. Although Ahearnʹs notice of appeal is untimely, the government waives any
objection to untimeliness. Under the circumstances, we exercise our discretion to hear
the appeal as though it were timely filed. See United States v. Frias, 521 F.3d 229, 232
(2d Cir. 2008) (holding that Federal Rule of Appellate Procedure 4(b) is not
jurisdictional).
Ahearnʹs pro se arguments have been waived by his plea of guilty.
ʺ[A]ppeals that call into question the governmentʹs authority to bring a prosecution or
congressional authority to pass the statute in question are generally not ʹjurisdictional,ʹʺ
United States v. Yousef, 750 F.3d 254, 260 (2d Cir. 2014), and ʺ[a] knowing and voluntary
guilty plea waives all nonjurisdictional defects in the prior proceedings,ʺ United States v.
Coffin, 76 F.3d 494, 496 (2d Cir. 1996). Thus, Ahearnʹs unconditional guilty plea
waived any claim that Congress exceeded its constitutional authority in enacting §
2242(b), or that the governmentʹs prosecution of him under § 2242(b) was
unconstitutional. See United States v. Lasaga, 328 F.3d 61, 63 (2d Cir. 2003).
Ahearn also challenges the imposition of Special Condition 10, which
requires him to ʺparticipate in a program for substance abuse which shall include
testing for use of controlled substances, controlled substance analogues, and alcoholʺ
for the 15‐year duration of his supervised release. Appʹx at 56. Where, as here, a
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defendant does not object to the conditions of his supervised release, this Court reviews
those conditions for plain error. See United States v. Matta, 777 F.3d 116, 121 (2d Cir.
2015). A sentencing court may impose special conditions that are reasonably related
to, inter alia, ʺthe history and characteristics of the defendantʺ and ʺthe need to provide
the defendant with needed educational or vocational training, medical care, or other
correctional treatment in the most effective manner.ʺ U.S.S.G. § 5D1.3(b); see also
United States v. Myers, 426 F.3d 117, 123‐25 (2d Cir. 2005). District courts are ʺrequired
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,ʺ
and we may uphold a condition in the absence of such an explanation ʺonly if the
district courtʹs reasoning is self‐evident in the record.ʺ United States v. Betts, 886 F.3d
198, 202 (2d Cir. 2018) (internal quotation marks omitted).
Betts, with its clarification that a district court must make an
individualized assessment and state on the record the reason for imposing a special
condition, had not yet been filed when the district court imposed sentence in this case.
The district court did not separately discuss Special Condition 10. Instead, it
concluded generally that the special conditions were ʺnecessary and justified . . . based
upon the nature of the offense, as well as [defendantʹs] characteristics as outlined in the
presentence report.ʺ Appʹx at 44. There is no indication in the record that Ahearnʹs
offense had anything to do with alcohol or controlled substances. The PSR does reflect
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that Ahearn used cocaine two to three times in the 1980s, that he drank one beer
approximately one day per week, and that he used marijuana on and off for
approximately 36 years. Although the U.S. Sentencing Guidelines recommend a
special condition of substance abuse treatment ʺ[i]f the court has reason to believe that
the defendant is an abuser of . . . controlled substances or alcohol,ʺ U.S.S.G.
§ 5D1.3(d)(4), the district court did not indicate that it held such a belief. The district
court did not undertake an individualized assessment, and the record does not self‐
evidently reflect that Ahearn is an abuser of alcohol or controlled substances such that
Ahearnʹs participation in a program for substance abuse for 15 years ʺinvolve[s] no
greater deprivation of liberty than is reasonably necessary.ʺ U.S.S.G. § 5D1.3(b)(2).
We therefore vacate the imposition of Special Condition 10 and remand to the district
court to make an individualized assessment and to clarify its reasoning in accordance
with Betts.
We have considered all of Ahearnʹs remaining arguments and find them
to be without merit. For the foregoing reasons, the judgment of the district court is
AFFIRMED IN PART and VACATED IN PART, and the case is REMANDED for
further proceedings consistent with this order.
FOR THE COURT:
Catherine OʹHagan Wolfe, Clerk of Court
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