Opinion
21-432-cr
01-11-2022
UNITED STATES OF AMERICA, Appellee, v. GARDNER DENNO, Defendant-Appellant.
For Appellee: Thomas R. Sutcliffe, Assistant United States Attorney, for Antoinette T. Bacon, Acting U.S. Attorney for the Northern District of New York, Syracuse, NY For Defendant-Appellant: James P. Egan, Assistant Federal Public Defender, Office of the Federal Public Defender, Northern District of New York, Syracuse, NY
UNPUBLISHED OPINION
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 11th day of January, two thousand twenty-two.
Appeal from a judgment of the United States District Court for the Northern District of New York (Thomas J. McAvoy, J.).
For Appellee: Thomas R. Sutcliffe, Assistant United States Attorney, for Antoinette T. Bacon, Acting U.S. Attorney for the Northern District of New York, Syracuse, NY
For Defendant-Appellant: James P. Egan, Assistant Federal Public Defender, Office of the Federal Public Defender, Northern District of New York, Syracuse, NY
Present: DENNIS JACOBS, REENA RAGGI, WILLIAM J. NARDINI, Circuit Judges.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Defendant-Appellant Gardner Denno appeals from the amended judgment of the United States District Court for the Northern District of New York (Thomas J. McAvoy, J.) entered on February 16, 2021. Denno pled guilty to six counts of distributing, receiving, and possessing child pornography, see 18 U.S.C. §§ 2252A(a)(2)(A), (a)(5)(B), (b)(1), (b)(2), and was sentenced principally to 85 months of imprisonment and 15 years of supervised release on September 11, 2019. Denno appealed, and we substantially affirmed but vacated and remanded with respect to one special condition of supervised release. United States v. Denno, 831 Fed.Appx. 564 (2d Cir. Oct. 28, 2020). We held that the district court had failed to explain why its imposition of Special Condition 9-a ban on possessing or viewing sexually explicit material-was "necessary to achieve the goals of sentencing." Id. at 567. We directed the district court to "further consider[] whether such a condition [was] necessary, and, if so, to make the requisite detailed factual findings." Id. (internal quotation marks omitted). On remand, the district court reimposed the same condition, and Denno again appealed. We assume the reader's familiarity with the record.
"A district court retains wide latitude in imposing conditions of supervised release, and this Court generally reviews the imposition of such conditions for abuse of discretion." United States v. Birkedahl, 973 F.3d 49, 53 (2d Cir. 2020) (internal quotation marks omitted). "[A] court may order special conditions of supervised release if they are reasonably related to the statutory purposes of supervision," including "the nature and circumstances of the offense and the history and characteristics of the defendant." Id. (internal quotation marks and alterations omitted).
On appeal, Denno argues that the district court's explanation for reimposing Special Condition 9 was insufficient. We disagree. The district court held a partial resentencing hearing on February 16, 2021; it explained its reasoning for reimposing Special Condition 9 at length, including that, based on the facts in the record, Denno's offense conduct was motivated by a desire for sexual stimulation-indeed an addiction-and that he used adult pornography to "stimulate his interest in sexual behavior which then was augmented by looking at child pornography." Joint App'x at 107-08. The district court reasoned that "allowing [Denno] to view in the future adult pornography would be a clear indicat[o]r that he would also then begin to reoffend by using child pornography." Id. These statements adequately explain how Special Condition 9 is "reasonably related" to the "nature and circumstances of the offense and the history and characteristics of the defendant." Birkedahl, 973 F.3d at 53. Compare United States v. Savastio, 777 Fed.Appx. 4, 7 (2d Cir. 2019) (collecting cases and affirming adult pornography limitation given district court's finding that "looking at [] adult[] [pornography] leads back to the child pornography viewing"), United States v. Skvarla, 847 Fed.Appx. 76, 78 (2d Cir. 2021) (same), and United States v. Seeley, No. 19-4320, 2021 WL 5049457, at *5 (2d Cir. Nov. 1, 2021) (affirming adult pornography limitation where district court highlighted defendant's possession of both adult and child pornography and his "very poor impulse control"), with United States v. Eaglin, 913 F.3d 88, 99 (2d Cir. 2019) ("general" references to public interest and need to protect community insufficient to justify imposition of adult pornography limitation). We discern no abuse of discretion in the district court's amended sentence.
We have considered Denno's remaining arguments and find them to be without merit. Accordingly, we AFFIRM the amended judgment of the district court.