16‐1322‐cr
United States v. Browder
In the
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2016
No. 16‐1322‐cr
UNITED STATES OF AMERICA,
Appellee,
v.
BRIAN S. BROWDER,
Defendant‐Appellant.
On Appeal from the United States District Court
for the Western District of New York
ARGUED: APRIL 27, 2017
DECIDED: AUGUST 8, 2017
Before: CABRANES, LOHIER, Circuit Judges, and FORREST, District
Judge.
Defendant‐appellant Brian S. Browder—having been convicted
of possessing digital images and videos of child pornography, and
having served the incarcerary portion of his sentence—appeals from
an order finding him in violation of two conditions of his supervised
release. The District Court (Lawrence J. Vilardo, Judge) found that
Browder had violated two special conditions, one requiring that
Browder’s computer(s) be monitored by the United States Probation
Office, and the other requiring that Browder attend a mental health
treatment program for sex offenders. We conclude that Browder’s
challenge to the computer monitoring violation is unsuccessful,
because the condition, as construed for purposes of this appeal and
under our deferential review, is reasonable. But we conclude that
Browder’s challenge to the treatment violation has merit. Specifically,
it was reasonable for Browder to object to signing a treatment
agreement that conflicted with his actual sentence, and he does not
appear, based on the record, to have otherwise acted unreasonably
with respect to participating in such treatment. Accordingly, we
AFFIRM the order in part, with respect to the violation of the
computer monitoring condition; REVERSE the order in part, with
respect to the violation of the treatment condition; and REMAND the
Judge Katherine B. Forrest, of the United States District Court for the
Southern District of New York, sitting by designation.
2
cause to the District Court for such further proceedings, consistent
with this opinion, as may be appropriate.
RANDALL D. UNGER, Bayside, NY, for
Defendant‐Appellant.
MONICA J. RICHARDS, Assistant United
States Attorney, for James P. Kennedy,
United States Attorney for the Western
District of New York, Buffalo, NY, for
Appellee.
JOSÉ A. CABRANES, Circuit Judge:
Defendant‐appellant Brian S. Browder—having been convicted
of possessing digital images and videos of child pornography, and
having served the incarcerary portion of his sentence—appeals from
an order finding him in violation of two conditions of his supervised
release. The District Court (Lawrence J. Vilardo, Judge) found that
Browder had violated two special conditions, one requiring that
Browder’s computer(s) be monitored by the United States Probation
Office, and the other requiring that Browder attend a mental health
treatment program for sex offenders.
Browder objected to the Probation Office’s implementation of
both conditions. With respect to the computer monitoring violation,
3
Browder believed, and contends on appeal, that the Probation
Office’s computer monitoring policy was overreaching. With respect
to the treatment violation, Browder refused to sign the relevant
treatment agreement because the treatment agreement purported to
bar Browder from contacting his own children unless approved by
the Probation Office and the treatment providers—a requirement that
conflicted with an express condition of supervised release ordered
earlier by the District Court.
We conclude that Browder’s challenge to the computer
monitoring violation is unsuccessful, because the condition, as
construed for purposes of this appeal and under our deferential
review, is reasonable. But we conclude that Browder’s challenge to
the treatment violation has merit. Specifically, it was reasonable for
Browder to object to signing a treatment agreement that conflicted
with his actual sentence, and he does not appear, based on the
record, to have otherwise acted unreasonably with respect to
participating in such treatment. Accordingly, we AFFIRM the order
in part, with respect to the violation of the computer monitoring
condition; REVERSE the order in part, with respect to the violation
of the treatment condition; and REMAND the cause to the District
Court for such further proceedings, consistent with this opinion, as
may be appropriate.
I. BACKGROUND
On October 20, 2010, Browder pleaded guilty, pursuant to an
agreement, to one count of possessing child pornography in violation
4
of 18 U.S.C. § 2252A(a)(5)(b). The factual basis of Browder’s plea
agreement provided as follows:
On or about October 14,[] 2009, in the Western
District of New York, the defendant possessed 462
images of child pornography in a Generic Computer
in a black Antec tower. The defendant received and
traded these images of child pornography over the
internet using the file sharing programs eMule and
eDonkey2000.
Some of the child pornography possessed by the
defendant depicted prepubescent children younger
than 12 years of age.1
The affidavit accompanying the criminal complaint against Browder
attested to, among other things, the following facts:
Forensic analysis also discovered that the defendant
had file wiping software and had used an encrypting
file system. Also, the user account for the defendant
was password protected. The password reminder for
the account is “unouwill” and the password is
“jerk4awhile,” which was recovered during forensic
analysis.2
Plea Agreement at 4, United States v. Browder, 1:10‐cr‐00263‐LJV
1
(W.D.N.Y. Oct. 20, 2010), ECF No. 14.
2 Complaint at 6, United States v. Browder, 1:10‐cr‐00263‐LJV (W.D.N.Y.
Mar. 22, 2010), ECF No. 1.
5
Judge Richard J. Arcara, to whom the case was originally
assigned, sentenced Browder to six‐and‐a‐half years’ imprisonment
followed by ten years’ supervised release. The terms of Browder’s
supervised release included certain special conditions, three of which
are relevant here. The first of these special conditions required
Browder to participate in the Probation Office’s Computer/Internet
Monitoring Program.3 The second relevant condition required
Browder to participate in a mental health program for sexual
offenders.4 And the third condition barred Browder from having
The condition provides in relevant part:
3
The defendant shall participate in the Computer/Internet
Monitoring Program administered by the U.S. Probation Office.
The defendant must provide the U.S. Probation Office advance
notification of any computer(s), automated service(s), or connected
device(s) that he will use during the term of supervision. Such
computer or computers will be subject to monitoring by the U.S.
Probation Office, consistent with the computer monitoring policy
then in effect by the probation office. In accordance with the
Second Circuit’s decision, United States v. Lifshitz, 269 F.3d 173 (2d
Cir. 2004), at footnote 11, and in light of the changing technology of
computer monitoring techniques, the Court finds it prudent to
delay the determination of the specific terms of the condition and
computer monitoring policy until the defendant’s supervised
release commences.
Judgment at 4, United States v. Browder, 1:10‐cr‐00263‐LJV (W.D.N.Y. May
31, 2011), ECF No. 43 (“2011 Judgment”).
The condition provides in relevant part:
4
The defendant is to enroll, attend, and participate in mental health
intervention specifically designed for the treatment of sexual
offenders as approved by the U.S. Probation Office. The defendant
6
deliberate contact with minors—excluding his children—unless
approved by the Probation Office.5
On December 24, 2015, Browder finished his term of
imprisonment and his term of supervised release began. In the time
leading up to and shortly after his release, Browder met with his
Probation Officer (“USPO”), Ann Marie Bucholtz, to review the
conditions of his supervised release.6 At the second meeting,
Browder indicated he wished to use a computer, and USPO Bucholtz
arranged for him to bring a laptop to her office so that monitoring
software could be installed on it.
On March 2, 2016, Browder appeared at USPO Bucholtz’s
office with a laptop and was presented with a “Computer Monitoring
Program Participant Agreement.”7 That agreement’s first paragraph
is to comply with the mandates of the treatment program and is
not to leave such treatment until discharge is agreed to by the U.S.
Probation Office and treating agency.
Id.
The condition provides in relevant part: “The defendant shall not have
5
deliberate contact with any child under 18 years of age, excluding his biological or
adopted children, unless approved by the probation officer.” Id.
Browder has two daughters.
At the revocation hearing, USPO Bucholtz testified that she supervises all
6
sex offenders.
See Appendix (“A.”) 122–23. Browder had previously signed this
7
agreement, but since he did not then have a computer, he and USPO Bucholtz
7
provides in relevant part that, “I understand that this agreement is,
by reference, part of the order setting conditions of supervision and
that failure to comply with its provisions or the instructions of my
officer will be considered a violation of my supervision and may
result in adverse action.”8 Paragraph six of that agreement provides
in relevant part:
I agree to allow the U.S. Probation Office to install
software/hardware designed to monitor computer
activities on any computer(s)/connected device(s) I own
or have access to. I understand that the monitoring
device may record any and all activity on my computer,
including the capture of keystrokes, application
information, internet use history, email correspondence,
and chat conversations.9
Evidently this monitoring would be performed by a third‐party
private company, Remote.com.10
circled only the three paragraphs that applied to him at that time—none of which
he objects to here.
8 A. 122 ¶ 1.
9 Id. ¶ 6.
At the violation hearing, USPO Bucholtz testified that Remote.com is
10
staffed by former law enforcement officials, and that they will alert the Probation
Office only if those monitored are “looking at any contraband.” Id. at 71. It is
unclear what constraints, if any at all, are imposed on Remote.com’s monitoring
of probationers.
8
Browder objected to this computer monitoring agreement as
overbroad and overreaching, expressing concerns in particular about
the monitoring of computer files related to his pro se motion under 28
U.S.C. § 2255, which Browder was working on at that time. He also
refused to allow USPO Bucholtz to keep the laptop or say what he
would do with it. The Probation Office then conducted a search of
Browder’s home; no computer was found, but flash drives and SD
(storage device) cards were. Browder refused to disclose the
whereabouts of the laptop.
During the same general time period, Browder appeared for at
least two sexual offender treatment appointments at Mid‐Erie
Counseling and Treatment Services. His treatment was terminated,
however, because he objected to the treatment agreement’s inclusion
of a term that conflicted with his special conditions.11 That term
provided that Browder would “lead a prosocial lifestyle and refrain
from any and all willful contact, visitation, letter writing and
telephone calls with anyone under the age of 17 years old”—without
exception—”unless approved by my parole or probation officer and
the treatment team before I have contact with them.”12 In a letter
dated March 16, 2016—and which was delivered to USPO Bucholtz
See id. at 52–53, 126; see also id. at 124 (March 16, 2016 letter from Browder
11
to USPO Bucholtz).
12 Id. at 133 (emphasis added).
9
no later than March 23, 2016—Browder documented his objection,
writing as follows, in part,13 to USPO Bucholtz:
As you are aware, I have objections to Mid‐Erie’s
“treatment agreement form” that compel me not to sign.
I want to be clear that I have not refused counseling;
they refused to modify or allow modification of an over‐
reaching agreement, so I could not sign, so they refused
me counseling. . . . [T]he Restriction grants you authority
to deny me any contact with my own children, even by
birthday card. The court did not convey that authority to
you . . . . I will not be compelled to grant that authority.
That was largely why I could not sign . . . .14
On March 25, 2016, the Probation Office filed a violation
petition alleging violations of the sex offender treatment and
computer monitoring conditions. By that time, the case had been
transferred from Judge Arcara to Judge Vilardo.15 On March 29, 2016,
Judge Vilardo granted the Government’s motion to detain Browder.
On April 4, 2016, a violation hearing was held, with testimony from
USPO Bucholtz. At the hearing’s conclusion, the District Court found
that the two violations were proven by a preponderance of the
13 We need not consider the alternative objections that Browder raised in
his letter. We simply note that a supervisee’s subjective belief in his own
innocence—despite having been convicted, upon a guilty plea or otherwise—is
not a valid reason for that supervisee to disregard the mandatory, court‐ordered
conditions of his supervised release.
14 A. 124.
15 The case was reassigned on December 4, 2015.
10
evidence. At sentencing, the District Court imposed a sentence of
“time served” and reinstated the same terms (duration and
conditions) of supervised release as were already in effect.
This appeal followed.
II. DISCUSSION
Among Browder’s arguments on appeal,16 the more substantial
relate to the legal validity of the two special conditions themselves—
or, perhaps more precisely, the validity of the Probation Office’s
To the extent Browder challenges the sufficiency of the evidence
16
supporting his violations, we easily conclude that such a challenge fails.
“A district court’s finding that a defendant has violated conditions of
supervised release is reviewed for abuse of discretion, and its factual findings are
reviewed for clear error.” United States v. Glenn, 744 F.3d 845, 847 (2d Cir. 2014)
(citations omitted). A district court may revoke a term of supervised release if it
“finds by a preponderance of the evidence that the defendant violated a condition
of supervised release.” 18 U.S.C. § 3583(e)(3). In challenging a violation on
sufficiency grounds, a supervisee “assumes a ‘heavy burden,’ because a district
court need only be ‘reasonably satisfied’ that a probationer has failed to comply
with the conditions of probation to revoke sentence.” United States v. Colasuonno,
697 F.3d 164, 181 (2d Cir. 2012) (quoting United States v. Lettieri, 910 F.2d 1067,
1068 (2d Cir. 1990)).
Here, the District Court did not err in finding that there was sufficient
evidence supporting a finding of a violation of the special conditions. A. 85–86.
Contrary to the requirements of his special conditions, Browder refused to
“participate in the Computer/Internet Monitoring Program,” and he also refused
to “comply with the mandates of the treatment program.” 2011 Judgment at 4.
Accordingly, Browder’s sufficiency challenge is without merit.
11
implementation of those conditions. We address his arguments with
respect to each condition in turn.
A. Violation of the Computer Monitoring Condition
To begin, we note that, as written, it is not clear what degree of
computer monitoring the District Court imposed in this special
condition. The condition, originally imposed by Judge Arcara in
2011, provides in relevant part:
The defendant shall participate in the Computer/Internet
Monitoring Program administered by the U.S. Probation
Office. The defendant must provide the U.S. Probation
Office advance notification of any computer(s),
automated service(s), or connected device(s) that he will
use during the term of supervision. Such computer or
computers will be subject to monitoring by the U.S.
Probation Office, consistent with the computer
monitoring policy then in effect by the probation office.
In accordance with the Second Circuit’s decision, United
States v. Lifshitz, 269 F.3d 173 (2d Cir. 2004), at footnote
11, and in light of the changing technology of computer
monitoring techniques, the Court finds it prudent to delay
the determination of the specific terms of the condition and
computer monitoring policy until the defendant’s supervised
release commences.17
Once Browder’s supervised release began in December 2015,
however, there was no “determination of the specific terms of the
17 2011 Judgment at 4 (emphasis added).
12
condition.” (Earlier that month, the case had been transferred from
Judge Arcara to Judge Vilardo.) Nevertheless, all the relevant parties
in this case appear to have been operating on the understanding—
reasonably, perhaps, given some of the language in the special
condition—that, upon his release, Browder was subject to whatever
computer monitoring policy the Probation Office of the Western
District of New York had in effect at that time. Indeed, in this appeal,
Browder seems to be challenging the policy of the Probation Office,
not the sentence of the District Court.
Browder’s principal contention on appeal is, “[i]n short,” that
“the computer monitoring system that the Probation Office sought to
implement involved a ‘greater deprivation of liberty than is
reasonably necessary for the purposes set forth in section[s]
3553(a)(2)(b), (a)(2)(C), and (a)(2)(D) [of Title 18 of the United States
Code].’”18 Browder’s principal argument—which seeks to apply the
requirements governing the imposition of sentence by the District
Court to the execution of that sentence by the Probation Office—is
thus fundamentally confused. “[T]he extensive ‘supervision mission’
of federal probation officers includes ‘execut[ing] the sentence,’ but
not imposing it.”19 And while the special condition that Judge
Vilardo originally imposed (unless and until updated and made
more specific) may be subject to challenge as an impermissible
18 Appellant’s Br. 13–14 (quoting 18 U.S.C. § 3583(d)(2)).
19 United States v. Matta, 777 F.3d 116, 122 (2d Cir. 2015) (quoting United
States v. Reyes, 283 F.3d 446, 456 (2d Cir. 2002)).
13
delegation of judicial authority to the Probation Office,20 Browder
does not bring any such challenge here. Any delegation argument
has therefore been waived in this appeal.
In light of the foregoing, we construe the computer monitoring
condition as Browder himself does—that is, as having sentenced him
to whatever computer monitoring policy was used by the Western
District’s Probation Office at his release—and consider whether that
sentence, as effectuated in the Probation Office policy, was
unreasonable or an “abuse of discretion.”21 We conclude it was not.
We have explained that “[t]he power to impose special conditions of
20
supervised release . . . is vested exclusively in the district court.” Matta, 777 F.3d at
122. While “a district court may delegate to a probation officer decisionmaking
authority over certain minor details of supervised release—for example, the
selection of a therapy provider or treatment schedule”—it “may not delegate to
the Probation Department decisionmaking authority which would make a
defendant’s liberty itself contingent on a probation officer’s exercise of
discretion.” Id.; see also U.S.S.G. § 5D1.3(b) (“The court may impose other
conditions of supervised release . . . .” (emphasis added)); cf. United States v.
Peterson, 248 F.3d 79, 85 (2d Cir. 2001) (holding that two special conditions—
delegating to the probation officer the decision whether to require sex offender
counseling and the decision whether to require third‐party notifications—were
impermissible delegations of judicial authority).
See Gall v. United States, 552 U.S. 38, 46 (2007); United States v. Rigas, 583
21
F.3d 108, 114 (2d Cir. 2009) (“[T]he role of the Court of Appeals is limited to
examining a sentence for reasonableness, which is akin to review under an ‘abuse‐
of‐discretion’ standard.”); United States v. Brown, 402 F.3d 133, 136 (2d Cir. 2005)
(“We review the propriety of a supervised release condition for abuse of
discretion.”). “[S]upervised release, [a] form of post‐imprisonment supervision . . .
is imposed by a federal district court as part of a total sentence in addition to a period
of incarceration at the time of the initial sentencing of a convicted federal criminal
14
Under 18 U.S.C. § 3583(d), the imposition of certain conditions
of supervised release is mandatory, but “[d]istrict courts also have
discretion to impose other, non‐mandatory conditions of supervised
release,”22 which are commonly referred to as “special conditions.”
Such discretion is not unbounded, however.23 The United States
Sentencing Guidelines provide that a district court
may impose other conditions of supervised release to the
extent that such conditions (1) are reasonably related to (A)
the nature and circumstances of the offense and the
history and characteristics of the defendant; (B) the need
for the sentence imposed to afford adequate deterrence
to criminal conduct; (C) the need to protect the public
from further crimes of the defendant; and (D) the need to
provide the defendant with needed educational or
vocational training, medical care, or other correctional
treatment in the most effective manner; and (2) involve
no greater deprivation of liberty than is reasonably
necessary for the purposes set forth above and are
consistent with any pertinent policy statements issued
by the Sentencing Commission.24
defendant.” United States v. Reyes, 283 F.3d 446, 456 (2d Cir. 2002) (emphasis in
original) (internal quotation marks omitted).
22 United States v. Reeves, 591 F.3d 77, 80 (2d Cir. 2010).
23 Id.
U.S.S.G. § 5D1.3(b) (emphases added). Substantially the same
24
requirements are set forth, by means of intricate cross‐referencing, in 18 U.S.C.
§ 3583(d). See United States v. Malenya, 736 F.3d 554, 559 (D.C. Cir. 2013).
15
With respect to the first, “reasonably related” requirement, “a
condition may be imposed if it is reasonably related to any one or
more of the specified factors.”25 The second, “reasonably necessary”
requirement has a constitutional gloss in the computer‐monitoring
context.26
In United States v. Lifshitz,27 we considered a probationer’s
Fourth Amendment challenge to a broadly worded computer
monitoring condition.28 We explained that the special needs of
United States v. Abrar, 58 F.3d 43, 46 (2d Cir. 1995); accord United States v.
25
McLaurin, 731 F.3d 258, 262 (2d Cir. 2013).
We focus here on the Fourth Amendment. In Packingham v. North
26
Carolina, 137 S. Ct. 1730 (2017), however, the Supreme Court struck down, as a
violation of the First Amendment, a North Carolina law that barred sex offenders
from having access to social media (and other) internet sites. We need not dwell
on the implications of Packingham here. For one thing, Packingham is not directly
on point. It involved an internet ban—not internet or computer monitoring—and
that ban extended beyond the completion of a sentence. See id. at 1737 (noting, but
seeming not to rely on, “the troubling fact that the law imposes severe restrictions
on persons who already have served their sentence and are no longer subject to
the supervision of the criminal justice system”); cf. United States v. Lifshitz, 369
F.3d 173, 181 n.4 (2d Cir. 2004) (“Supervised release, parole, and probation lie on a
continuum. The most severe is ‘supervised release,’ which is ‘meted out in
addition to, not in lieu of, incarceration.’” (quoting Reyes, 283 F.3d at 461)).
Additionally, and most significantly, Browder raises no First Amendment
challenge and thus waived the argument on appeal.
27 369 F.3d 173 (2d Cir. 2004).
28 The relevant sentence in Lifshitz’s condition provided: “The defendant
shall consent to the installation of systems that enable the probation officer or
designee to monitor and filter computer use, on a regular or random basis, on any
computer owned or controlled by the defendant.” Id. at 178 n.3.
16
supervision permit the monitoring of a supervisee’s computer use,
but that a “monitoring condition must be narrowly tailored, and not
sweep so broadly as to draw a wide swath of extraneous material
into its net.”29 When irrelevant data is “inadvertently gathered . . . ,
those monitoring compliance should remain conscientiously
unaware of that data.”30 In other words, while a computer
monitoring condition “must bear ‘a close and substantial relation’ to
the government’s interest in pursuing the search,” it need not employ
“‘the least intrusive means.’”31 We did not hold that the condition in
Lifshitz violated the Fourth Amendment, but we said the condition
“may . . . be overbroad” and remanded so the district court could
“evaluate the privacy implications of the proposed computer
monitoring techniques as well as their efficacy as compared with
computer filtering.”32 We also suggested that where there may be a
29 Id. at 190.
30 Id.
31 Id. at 192 (citation omitted) (quoting, respectively, Natʹl Treasury Emps.
Union v. Von Raab, 489 U.S. 656, 676 (1989) (drug tests of customs officials), and Bd.
of Educ. v. Earls, 536 U.S. 822, 837 (2002) (drug tests of schoolchildren)).
32 Id. at 193. In Lifshitz, we did not have occasion to again evaluate the
condition following our remand, but it appears that the following condition was
in effect as of 2011:
The defendant is not to use a computer, Internet‐capable device, or
similar electronic device to access child pornography or to
communicate with any individual or group for the purpose of
promoting sexual relations with children. The defendant shall
consent to the use and/or installation of a computer program which
shall monitor suspect computer use on computer[s] owned or
17
significant delay before the monitoring condition comes into effect—
for example, in the case of supervised release—“it might well be
prudent for the district court to postpone the determination of the
supervised release or probation conditions until an appropriate later
time, when the district court’s decision could be based on then‐
existing technological and other considerations.”33
controlled by the defendant. The program(s) used will be designed
to identify, for the probation office, only the viewing,
downloading, uploading, transmitting, or otherwise using any
images or content of a sexual nature, defined as Suspect Computer
Use. Suspect Computer Use shall be identified by the installed
program(s) and/or the probation officer through the screening of
the defendantʹs computer usage for certain key words, phrases and
images.
Judgment at 4, United States v. Lifshitz, 1:03‐cr‐00572‐LAP (S.D.N.Y. May 18, 2011),
ECF No. 32.
33 Lifshitz, 369 F.3d at 193 n.11. The history of this case indicates that our
well‐meaning suggestion may at times fare better in theory than in fact. At a
minimum, rather than delaying imposition of sentence, it may be more practical
for a district court to impose the full sentence (including, that is, the specific terms
of any computer monitoring or filtering condition) in the first instance. If less
invasive means of computer supervision arise, through technological or other
innovation, the defendant or the government is free to seek modification of the
condition. See 18 U.S.C. § 3583(e)(2) (providing a court “may modify, reduce, or
enlarge the conditions of supervised release, at any time prior to the expiration or
termination of the term of supervised release, pursuant to the provisions of the
Federal Rules of Criminal Procedure relating to the modification of probation and
the provisions applicable to the initial setting of the terms and conditions of post‐
release supervision”); Fed. R. Crim. P. 32.1(c) (concerning modification); see also,
e.g., United States v. Parisi, 821 F.3d 343, 347 (2d Cir. 2016) (applying 18 U.S.C.
§ 3583(e)(2)). It may be that the monitoring condition initially imposed proves to
be nothing but a temporary placeholder—but, as this case illustrates, it may not.
18
Viewing the computer monitoring to which Browder is subject
in light of the foregoing standards, we conclude it is reasonable.
Browder was convicted of possessing over 462 digital images of child
pornography that he received (and shared) on internet exchanges, so
computer monitoring is “reasonably related” to the nature and
circumstances of the offense and Browder’s history and
characteristics. The monitoring is also “reasonably necessary” for the
broad sentencing purposes indicated in U.S.S.G. § 5D1.3(b) and 18
U.S.C. § 3553(a)(2), including specific deterrence, public protection,
and rehabilitation. Notably, there was evidence that Browder had
employed computer software that could conceal or erase illicit
images. And importantly, USPO Bucholtz testified—and the District
Court found—that the third‐party monitoring organization,
Remote.com, notifies the Probation Office only if it detects
“contraband,” and would not convey any information related to
Browder’s § 2255 motion. So long as the principal concern is
monitoring by the Probation Office—which, in fact, is Browder’s
principal stated concern34—this third‐party monitoring arrangement
helps ensure that the monitoring remains, in the words of Lifshitz,
“narrowly tailored.”35 Put differently, the monitoring at issue in this
particular case is not an unreasonable or excessive deprivation of
liberty.
34 Although a defendant might hypothetically raise an objection to the use
of a third‐party monitoring service, Browder has not done so here.
35 369 F.3d at 190.
19
Accordingly, we conclude that subjecting Browder to the
computer monitoring conditions described above was not an abuse
of discretion. But to say that a sentence is within the range of
reasonable sentences is not, of course, to say that it is the only
reasonable sentence. As already explained, while Browder has
waived any delegation challenge in this appeal, it is not clear that the
District Court ever imposed on Browder the specific terms of
monitoring reflected in the Probation Office’s policy. Because we
remand as to Browder ʹs mental health treatment condition in any
event, we direct the District Court to review the computer
monitoring condition of supervised release and to re‐state the terms
of Browder’s computer monitoring condition with greater specificity.36
B. Violation of the Mental Health Treatment Condition
Our analysis with respect to the District Court’s finding that
Browder violated the mental health treatment condition is more
straightforward. The gravamen of Browder’s complaint is simply
36 For instance, the condition in Lifshitz, as revised following remand, itself
contained certain narrowing provisions (whereas, here, we have construed the
computer monitoring condition as it has been implemented, not as it is written).
See note 32, ante. We also note there may be conflicting opinions in the record
regarding the feasibility of Browder using a word processer that is not capable of
gaining access to the internet. Compare A. 72–73 (USPO Bucholtz disputing the
availability or feasibility of an internet‐disabled word processor), with id. at 110
(the District Court stating at sentencing on the alleged violations of supervised
release: “In fact, unlike those who have to undergo drug testing, you have a way
to avoid the possibility of intrusion altogether. You can draft your papers on a
device that’s not capable of accessing the internet.”).
20
that the proposed treatment agreement conflicted with his actual
sentence.37 In particular, the original sentence of the District Court
included a specific condition prohibiting contact with minors, but it
categorically excluded Browder’s children from that prohibition. By
contrast, the proposed treatment agreement’s provision regarding
contact with minors did not categorically exclude Browder’s children.
We agree with Browder that the treatment agreement would
have subjected him to a more punitive condition governing contact
with minors than did the condition to which Browder was actually
sentenced by the District Court.38 Browder was therefore well within
his rights to object to that term of the agreement. Nor do we find that
Browder otherwise acted unreasonably with respect to the treatment
special condition. Browder made what appears to be a good‐faith
effort to attend the treatment, appearing at (at least) two sessions. In
addition, Browder communicated his objection to the treatment
Browder likewise fails to raise a delegation challenge here. But whether
37
or not the treatment condition is susceptible to a delegation challenge, cf. Peterson,
248 F.3d at 85; United States v. Morin, 832 F.3d 513, 516–17 (5th Cir. 2016),
Browder’s primary point, in our view, is that the treatment cannot be
implemented in a way that directly conflicts with other, specific conditions of his
supervised release.
38 Notably, the treatment agreement even refers to its terms as
“conditions.” See A 132–33. Part of the agreement states: “I have read, understand
and acknowledge that I am required to follow all of the conditions listed below
regarding my treatment and behavior. These conditions have been explained to
me in an understandable manner and I have been allowed to ask questions to
clarify any parts of this agreement.” Id. at 132. It then proceeds to enumerate
fifteen “General Conditions.” Id. at 132–33.
21
agreement in a written letter to USPO Bucholtz, and his objection was
also documented in the treatment facility’s records. Nevertheless,
USPO Bucholtz was unable to testify that she had read any of those
documents prior to seeking a violation of this condition. Finally, any
delay in Browder’s receiving the mental health treatment due to his
objection—unlike, arguably, the risks posed by a sex offender’s
possession of an unmonitored computer—did not pose the sort of
risk that might warrant arrest and imprisonment.
Accordingly, we conclude that the District Court’s finding that
Browder violated this condition of his release by objecting,
reasonably, to the treatment agreement, on the ground that it
conflicted with his actual sentence, was an “abuse of discretion”39—
that is, an error.
We recognize, of course, that both the no‐minors‐contact
special condition (imposed by the District Court as part of its
sentence) and the no‐minors‐contact term (included in the treatment
agreement of Mid‐Erie, the Probation Office’s chosen treatment
provider) allowed for contacts with minors if approved by the
Probation Office. The District Court appears to have placed
significant weight on USPO Bucholtz’s testimony that, if Browder
had sought permission to contact his daughters, the Probation Office
39 See Glenn, 744 F.3d at 847.
22
would have approved it; indeed, the District Court noted that, given
Browder’s sentence, the Office had no choice but to do so.40
Even if that were the case, however, approvals from the
Probation Office are insufficient to remedy the issue raised by
Browder. First, the treatment agreement actually required the
approval not only of the Probation Office, but also of “the treatment
team”41—something the District Court did not address and over
which it had no direct oversight. Second, and more fundamentally,
the District Court misapprehended the relationship between a
defendant’s sentence (by a judge) and its execution (by a probation
officer). The key question is not whether permission, if sought, would
be granted; it is whether Browder can be required, by the Probation
Office or its designee, to ask in the first place. Because such a
requirement as to Browder’s children would contradict, rather than
execute, Browder’s sentence, the Probation Office was plainly
without power to impose it, as Browder correctly argued.
40 See A. 110–11 (the District Court stating at sentencing on the alleged
violations of supervised release: “You must have known that you would have
been given permission if you would have asked. In fact, the Court required that
you be given permission. Judge Arcara required that. And Ms. Bucholtz testified
that all it would have taken for you to have been given permission was a phone
call and you would have gotten explicit permission.”). Of course, the District
Court did not address the fact that Browder had written and delivered a letter to
USPO Bucholtz, as well as the fact that USPO Bucholtz could not say whether she
sought to charge Browder with a violation before actually learning the grounds of
his objection to the treatment agreement.
41 Id. at 133.
23
III. CONCLUSION
To summarize, we hold as follows.
(1) Browder’s challenge to that part of the District Court’s
order finding that he had violated his computer monitoring
condition is unsuccessful because the condition, as
construed for purposes of this appeal and under our
deferential review, is reasonable. Nevertheless, we direct
the District Court to review this condition of supervised
release and to re‐state the terms of Browder’s computer
monitoring condition with greater specificity.
(2) Browder’s challenge to that part of the District Court’s
order finding that he had violated his treatment condition is
successful, because it was reasonable for Browder to object
to signing a treatment agreement that conflicted with his
actual sentence, and he does not appear to have otherwise
acted unreasonably with respect to participating in such
treatment.
For the foregoing reasons, we AFFIRM the District Court’s
order in part, with respect to the violation of the computer
monitoring condition; REVERSE the order in part, with respect to the
violation of the treatment condition; and REMAND the cause to the
District Court for such further proceedings, consistent with this
opinion, as may be appropriate.
24
United States v. Browder
Court: Court of Appeals for the Second Circuit
Date filed: 2017-08-08
Citations: 866 F.3d 504
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