22-2058
United States v. Serr
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 4th day of October, two thousand twenty-three.
PRESENT: John M. Walker, Jr.,
Steven J. Menashi,
Eunice C. Lee,
Circuit Judges.
____________________________________________
United States of America,
Appellee,
v. No. 22-2058-cr
Ted Serr,
Defendant-Appellant.
____________________________________________
For Appellee: Geoffrey J.L. Brown and Carina H.
Schoenberger, Assistant United States
Attorneys, for Carla B. Freedman, United
States Attorney for the Northern District of
New York, Syracuse, NY.
For Defendant-Appellant: Melissa A. Tuohey, Assistant Federal Public
Defender, Office of the Federal Public
Defender, Syracuse, NY.
Appeal from a judgment of 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 AFFIRMED.
Ted Serr pleaded guilty to one count of distribution of child pornography in
violation of 18 U.S.C. § 2252A(a)(2)(A), one count of receipt of child pornography
in violation of 18 U.S.C. § 2252A(a)(2)(A), and one count of possession of child
pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and 2252A(b)(2). The
district court sentenced Serr to a term of 150 months’ imprisonment for each count
to run concurrently and 15 years of supervised release. Under the terms of the
supervised release, Serr may not interact with minors without the permission of
his probation officer.
Serr raises two issues on appeal. First, Serr argues that the district court’s
order sentencing him to 150 months’ imprisonment is substantively unreasonable.
Second, Serr argues that the special condition of supervised release restricting his
interaction with minors does not meet the requirements of 18 U.S.C. § 3583(d) and
interferes with his constitutional right to associate with his children. We assume
the parties’ familiarity with the underlying facts, the procedural history of the case,
and the issues on appeal.
2
I
Serr argues that his 150-month sentence is substantively unreasonable
because the district court failed to apply U.S.S.G. § 2G2.2 properly and failed to
account for his mental and emotional condition. He argues that the resulting
sentence is substantively unreasonable because it cannot be located within the
range of permissible decisions.
This court “reviews sentences for reasonableness under the deferential
abuse of discretion standard.” United States v. Kadir, 718 F.3d 115, 125 (2d Cir.
2013). A district court has abused its discretion when it has “(1) based its ruling on
an erroneous view of the law, (2) made a clearly erroneous assessment of the
evidence, or (3) rendered a decision that cannot be located within the range of
permissible decisions.” United States v. Zhong, 26 F.4th 536, 551 (2d Cir. 2022)
(quoting Warren v. Pataki, 823 F.3d 125, 137 (2d Cir. 2016)).
A sentence falls outside the range of permissible decisions when it
“damage[s] the administration of justice because the sentence imposed was
shockingly high, shockingly low, or otherwise unsupportable as a matter of law.”
United States v. Saleh, 946 F.3d 97, 107 (2d Cir. 2019) (quoting United States v. Park,
758 F.3d 193, 200 (2d Cir. 2014)). The sentence must “shock the conscience” to be
substantively unreasonable. United States v. Richardson, 958 F.3d 151, 155 (2d Cir.
2020) (quoting United States v. Rigas, 583 F.3d 108, 124 (2d Cir. 2009)). To ascertain
whether a sentence shocks the conscience, we “use as our lodestar the parsimony
clause of 18 U.S.C. § 3553(a), which directs sentencing courts to impose a sentence
sufficient, but not greater than necessary, to comply with the factors set out in 18
U.S.C. § 3553(a)(2)—namely, retribution, deterrence, and incapacitation.” Saleh,
946 F.3d at 107 (quoting Park, 758 F.3d at 200). But a court of appeals should not
“substitute [its] own judgment for the district court’s on the question of what is
sufficient to meet the § 3553(a) considerations in any particular case.” United States
v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008).
3
A
Serr first argues that his sentence is substantively unreasonable because the
district court did not properly treat U.S.S.G. § 2G2.2 in accordance with our
holding in United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010). In Dorvee, we
observed that § 2G2.2 “is fundamentally different” from other guidelines and that
“unless applied with great care,” its application “can lead to unreasonable
sentences that are inconsistent” with § 3553(a). 616 F.3d at 184.
Serr’s reliance on Dorvee is misplaced. In United States v Muzio, we clarified
that Dorvee and its progeny “do not stand for the proposition that nearly any
sentence for child pornography above the mandatory minimum is substantively
unreasonable.” 966 F.3d 61, 64 (2d Cir. 2020). Moreover, Serr points to no facts
indicating that the district court did anything other than apply § 2G2.2 and the
§ 3553(a) factors with “great care.” Dorvee, 616 F.3d at 184. The district court began
its analysis by properly calculating the guidelines range. It then determined that
the recommended range of 210 to 262 months was “greater than necessary to meet
the goals of sentencing” elaborated in § 3553(a). App’x 70-71. Accordingly, the
district court varied downward to a sentence of 150 months. Serr dedicated a
significant portion of his sentencing memorandum to the § 2G2.2 issue, and we
presume that the district court considered those arguments when it contemplated
the § 3553(a) factors. United States v. Cossey, 632 F.3d 82, 87 (2d Cir. 2011).
B
Serr also argues that his sentence is substantively unreasonable because the
district court failed to consider his background, mental and emotional condition,
and need for mental health treatment. This argument also fails because the district
court did consider these factors at the sentencing. The district court acknowledged
reading Serr’s written submissions and evaluating his mental health needs. Serr’s
argument amounts to the insistence that the district court must explain why a
shorter sentence was inappropriate given the particular facts of the case. But we
have never required a sentencing court to “explain in open court why any
4
particular unselected sentence would be inappropriate.” United States v. Rosa, 957
F.3d 113, 118 (2d Cir. 2020).
Serr fails to carry his burden of showing that his sentence shocks the
conscience.
II
Serr’s second challenge to his sentence attacks the second condition of
supervised release: that he may not contact minors, including his children, without
the permission of his probation officer. Serr’s youngest daughter will be a minor
at the time of his scheduled release, and he argues that the special condition
improperly deprives him of his fundamental right to associate with his child.
A district court has “wide latitude” to impose conditions of supervised
release, so we review such conditions for an abuse of discretion. United States v.
Kunz, 68 F.4th 748, 758 (2d Cir. 2023) (quoting United States v. MacMillen, 544 F.3d
71, 74 (2d Cir. 2008)). But we “carefully scrutinize unusual and severe conditions,”
id. (quoting United States v. McLaurin, 731 F.3d 258, 261 (2d Cir. 2013)), and “where
a challenged condition implicates an issue of law, ‘we review the imposition of
that condition de novo, bearing in mind that any error of law necessarily constitutes
an abuse of discretion,’” id. (quoting MacMillen, 544 F.3d at 75). However, when a
defendant does not object to the challenged condition at sentencing—as Serr failed
to object here—we review for plain error. United States v. Dupes, 513 F.3d 338, 343
(2d Cir. 2008).
A court may order a special condition as long as it (1) is “reasonably related
to the factors set forth” in § 3553(a); (2) “involves no greater deprivation of liberty
than is reasonably necessary for the purposes set forth” in § 3553(a); and (3) “is
consistent with any pertinent policy statements issued by the Sentencing
Commission.” 18 U.S.C. § 3583(d). When the liberty interest at stake is
fundamental, “a deprivation of that liberty is ‘reasonably necessary’ only if the
deprivation is narrowly tailored to serve a compelling government interest.”
United States v. Myers, 426 F.3d 117, 126 (2d Cir. 2005).
5
Serr argues that his right to associate with his child is fundamental and that
strict scrutiny is not satisfied here, so the special condition fails § 3583(d)(2)’s
requirement that the deprivation be no more than “reasonably necessary” to
satisfy the § 3553(a) factors. We disagree. Serr exchanged images and videos that
depicted the sexual abuse of prepubescent children, and he expressed a desire to
sexually abuse his youngest daughter, then three years old, on a group chat
dedicated to distributing child pornography. The district court acknowledged
these as “aggravating factors” before imposing the sentence and special
conditions. App’x 71.
The government has a compelling interest in protecting children from
sexual abuse, and that interest is implicated with respect to a minor whom Serr
has already contemplated abusing. Moreover, the restriction on Serr’s interaction
with his daughter is narrowly tailored. The special condition does not prohibit him
from interacting with his daughter outright but requires the permission of his
probation officer. While the special condition does impact a fundamental right, we
conclude that it “involves no greater deprivation of liberty than is reasonably
necessary.” 18 U.S.C. § 3583(d)(2).
Serr also argues that the district court failed to make an individualized
assessment in relation to the special condition, including factual findings
supporting the conclusion that the condition is “no greater than reasonably
necessary” to serve the sentencing factors. But, as we have noted, the district court
did identify “aggravating factors” before imposing the sentence and special
conditions. We cannot agree that the district court failed to conduct an
individualized assessment in relation to the special conditions.
* * *
6
We have considered Serr’s remaining arguments, which we conclude are
without merit. For the foregoing reasons, we AFFIRM the judgment of the district
court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
7