18-3458-cr
United States v. Aurand
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 3rd day of May, two thousand twenty-two.
PRESENT: JOSÉ A. CABRANES,
JOSEPH F. BIANCO,
EUNICE C. LEE,
Circuit Judges.
UNITED STATES OF AMERICA,
Appellee, 18-3458-cr
v.
SHANE AURAND,
Defendant-Appellant.
FOR APPELLEE: Tiffany H. Lee, Assistant United States
Attorney, for Trini E. Ross, United States
Attorney, Western District of New York,
Buffalo, NY.
FOR DEFENDANT-APPELLANT: Brendan White, White & White, New
York, NY.
Appeal from a judgment of the United States District Court for the Western District of New
York (Lawrence J. Vilardo, Judge).
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UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court be and hereby is
AFFIRMED.
Shane Aurand pleaded guilty to one count of distributing child pornography. See 18 U.S.C.
§ 2252A(a)(2)(A). He was subsequently sentenced to 180 months’ imprisonment, to be followed by
lifetime supervised release. Aurand appeals from one supervised release condition: that “[h]e shall
refrain from the possession or use of pornographic materials including videos, magazines, or other
electronically stored images” (the “Pornography Condition”). App’x 118. 1 We assume the parties’
familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
A bar on possessing otherwise legal adult pornography—which is protected by the First
Amendment—“must be supported on the record by detailed factual findings establishing that the
proposed ban is reasonably related to the sentencing factors set forth in 18 U.S.C. § 3553(a) and that
it is reasonably necessary to accomplish their objectives.” United States v. Eaglin, 913 F.3d 88, 99 (2d
Cir. 2019). We assume without deciding that the District Court erred by not making such detailed
factual findings on the record.
However, any error did not “seriously affect[] the fairness, integrity or public reputation of
judicial proceedings.” See United States v. Olano, 507 U.S. 725, 731–32 (1993) (explaining that errors
not raised below are subject to plain error review under Fed. R. Crim. P. 52(b)) (internal quotation
marks omitted). We have held that, where “the reason for [a supervised release] condition[] is self-
evident in the record . . . and the condition[] meet[s] the purposes of supervised release, any error of
the district court [in failing to expressly articulate on the record why it imposed this condition] is
harmless.” United States v. Balon, 384 F.3d 38, 41 n.1 (2d Cir. 2004).
Here, the District Court imposed the Pornography Condition because it was recommended
by Aurand’s treatment specialist. See App’x 120 (“I just wanted to make sure . . . to impose the
conditions that Dr. Heffler included in his report.”). In light of this reference, the District Court’s
reasoning is self-evident. Dr. Heffler’s report explains that Aurand is “compulsively obsessed with
sexual activity with children,” and that this addiction is reinforced by the release of the chemical
dopamine when Aurand is sexually aroused by pornographic media. Report 21–22. The evaluation
concludes that this “fixation . . . is best addressed through development of methods to manage these
desires or impulses.” Id. at 21. The Pornography Condition thus self-evidently seeks to encourage
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While the District Court orally imposed this condition, it is not included in the written
judgment. In such circumstances, “the oral sentence generally controls,” because “the oral sentence
. . . constitutes the judgment of the court, and . . . is authority for the execution of the court’s
sentence,” while “[t]he written commitment order is mere evidence of such authority.” United States
v. DeMartino, 112 F.3d 75, 78–79 (2d Cir. 1997) (citation omitted).
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Aurand to manage his fixation and discourage reactivating it, reducing what Aurand’s treatment
specialist described as “a high risk of recidivism.” App’x 123. This is consistent with the purpose of
supervised release “to protect the public from further crimes of the defendant.” United States v.
Johnson, 529 U.S. 53, 59 (2000) (quoting 18 U.S.C. § 3553(a)).
We have reviewed all of the arguments raised by Aurand on appeal and find them to be
without merit. For the foregoing reasons, we AFFIRM the October 23, 2018, judgment of the
District Court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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