20

- 2173

United States v. Skvarla

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. 1 CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007

, IS 2

PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE 3

PROCEDURE 32.1 AND THIS COURT’S LO CAL RULE 32.1.1. WHEN CITING A 4 SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST 5 CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH 6 THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY 7

ORDER MUST SERVE A COPY OF IT ON AN Y PARTY NOT REPRESENTED BY 8

COUNSEL. 9

At a stated term of the United States Court of Appeals for the Second Circuit, held at the 10 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 1 0 t h 11 day of M a y , two thousand twenty

- on e

. 12

13

PRESENT: 14

D ENNIS J ACOBS

, 15

R EENA R AGGI

, 16

S USAN L. C ARNEY

, 17 Circuit Judges

. 18

_________________________________________ 19

20

U NITED S TATES OF A MERICA

, 21

22 Appellee

, 23

24

v. No. 20

- 2173 25

26

N ICHOLAS M. S KVARLA

, AKA N ICHOLAS M. S KVARIA

, 27

28 Defendant

- Appell ant

. 29

30

_________________________________________ 31

32

FOR DEFENDANT

- APPELLANT : Lisa A. Peebles, Melissa A. Tuohey, Federal 33 Public Defender’s Office, Syracuse, NY. 34

35

FOR APPELLEE : Carina H. Schoenberger , Assistant United 36 States Attorney, for Antoinette T. Bacon, 37 Acting United States Attorney for the 38

### 2 Northern District of New York, Syracuse, 1

NY. 2

3 Appeal from a n order of the United States District Court for the Northern District of New 4

York ( McAvoy

, J

. ). 5

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, 6

ADJUDGED, AND DECREED that the order ente red o n June 12

, 2020

, is AFFIRMED

. 7

Defendant

- Appellant Nicholas Skvarla appeals from an order modifying his conditions of 8

supervised release. In 2015, Skvarla was sentenced to 72 months ’ imprisonment and a five

- year term 9

of supervised release on conviction s for receipt, distribution, and po ssession of child pornography. 10

Although those proceedings took place in the Western District of New York, jurisdiction over 11

Skvarla’s supervis ion of release was transferred to the District Court for the Northern District of 12

New York

, where he has resided since his release in March 2020. On June 12, 2020 , the District 13

Court in the Northern District modified Skvarla’s supervised release conditions and i mposed on him 14

a set of special conditions applied routinely to child pornography offenders in the district

. On 15

appeal, Skvarla challenges two of th o se conditions : the requirement that he not go anywhere that 16

children are likely to congregate or go anywhere for the primary purpose of observing or contacting 17

children, and the prohibition on his viewing or possessing any pornographic material. We assume 18

the parties’ familiarity with the underlying facts, procedural history, and arguments on appeal, to 19

which we refer only as necessary to explain our decision to affirm. 20

We review the District Court’s modification of supervised release conditions for abuse of 21

discretion. United States v. Parisi , 821 F.3d 343, 347 (2d Cir. 2016)

. 1 Section 3583(e)(2) of title 18, U.S. 22

Code, provides that a court “may modify, reduce, or enlarge the conditions of supervised release, at 23

any time prior to the expiration or termination of the term of supervised release.” A special 24

condition is proper if it “ (1) i s reasonably related to the factors set forth in [18 U.S.C. §§] 3553(a)(1)

, 25

(a)(2)(B), (a)(2)(C), and (a)(2)(D); (2) involves no greater deprivation of liberty than is reasonably 26

necessary for the purposes set forth in section 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D); and (3) is 27

consistent with any pertinent policy statements issued by the Sentencing Commission pursuant to 28 28

1 Unless otherwise noted, in quotations from case law, this Order omits all alterations, brackets,

citations, emphases

, and internal quotation marks.

### 3 U.S.C. 994(a).” 18 U.S.C. § 3583(d). Skvarla argues that the challenged conditions violate the first 1

and second of these requirements

. 2

We conclude that the District Court did not abuse its discretion in imposing the two 3

challenged conditions

. Regarding the prohibitio n o n Sk v arla being present where children are likely 4

to congregate if he does not have the permission of hi s probation officer, the District Court 5

explained that this portion of th e condition i s intended “ to protect the public and prevent future 6

criminal conduct

. ” App’x at 77. In support, t he court pointed to how Skvarla admitted in his 7

Pre s entence Investigation Report (“PSR”) interview that he viewed child pornography because he 8

had experienced a desire to touch children in the past

. While Skvarla suggests that he has since been 9

rehabilitated

, the statute authorizes the District Court to impose a special condition “reasonably 10

related” to “the nature and circumstances of the offense and the history and characteristics of the 11

defendant

. ” 18 U.S.C. §§ 3583(d) (1) , 3553(a)(1) (emphasis added)

. The District Court did that here. 12

Skvarla further argues that the condition effects a “ greater deprivation of liberty than is reasonably 13

necessary ,” 18 U.S.C. §§ 3583(d) (2)

, because it is broader than a comparable condition previously 14

imposed on him in the Western District. But the latter condition does not define the ceiling. In any 15

case, the condition here is reasonably circumscribe d in time (a five

- year term), space (only places 16

where children congregate), and degree of restriction (Sk varla may obt ain permission to visit these 17

places). 18

Nor are we persuaded that the portion of the condition that Skvarla “ must not go to, or 19

remain at, a place for the primary purpose of observing or contacting children under the age of 18 ,” 20

App’x at 85, is vague or overbroad. As we recently summarily observed, “ [p] ersons of ordinary 21

intelligence are capable of understanding that having the primary purpose of observing children 22

differs from engaging in activities where observation is merely incidental or accidental. ” United States 23

v. Safford , 814 F. App ’ x 638, 643 (2d Cir. 2020) ; see also United States v. Robinson , 815 F. App ’ x 583, 586 24

(2d Cir. 2020)

. 25

Regarding the condition that Skvarla not possess or view any pornographic material, 26

including legal a dult pornography, the District Court adequately justified the condition in light of 27

Skvarla’s history of accessing child pornography in connection with his viewing adult pornography. 28

Skvarla admitted that , in consuming a “wide variety” of adult pornography, he sometimes found that 29

children were “mixed in with the material

. ” PSR ¶¶ 47

- 48

. His exposure to that material in turn led 30

him to seek out child pornography. The District Court reasonably imposed the condition to pr event 31

### 4 Skvarla from repeating this sequence of events

. Nor does th e condition effect an unreasonable 1

deprivation of liberty given the adverse impact that adult pornography specifically has had on 2

Skvarla. Indeed, to tailor the condition to the risks posed to Skvarla

, the District Court revised it 3

from one prohibiting “sexually explicit” “ material ” to one prohibiting “pornographic material

. ” 4

App’x at 49, 8 6; see id. at 82 ( the District Court noting it was “limiting [the restriction] to wha t 5

ordinary people consider to be adult pornography”). While “[p]ornographic materials receive full 6

First Amendment protection when in the possession of ordinary adults, [they] may be regulated in 7

the hands of parolees to a much greater extent,” so long as a court explains “the need for th [ e ] 8

condition” as “supported on the record.” United States v. Eaglin , 913 F.3d 88, 99 (2d Cir. 2019). The 9

District Court has met that bar here. 10

* * * 11

For the foregoing reasons, the District Court’s order is AFFIRMED

. 12

13

FOR THE COURT: 14

Catherine O’Hagan Wolfe, Clerk of Court 15