1 17-2641-cr United States v. Adams 

### UNITED STATES COURT OF APPEALS FOR THE SECO ND 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 PROC EDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMEN T FILED WITH THIS CO URT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATA BASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPR ESENTED 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 Fole y Square, in the City of New York, on the 12 th day of September, two thousand eighteen.
Present: D EBRA A NN L IVINGSTON , D ENNY C HIN , Circuit Judges , K ATHERINE P OLK F AILLA , District Judge .*

_____________________________________ U NITED S TATES OF A MERICA , Appellee , v. 17-2641-cr
B RIAN A DAMS , also known as Bryan Adams, Defendant-Appellant

.

_____________________________________ For Defendant-Appellant: Norm an Trabulus, New York, NY. For Appellee: Amy Busa, Michael P. Robotti, and Hiral D. Mehta, Assistant United States Attorneys, for Richard P. Donoghue, United States Attorney for the Eastern District of New York, Brooklyn, NY.

* Judge Katherine Polk Failla, of the United States District Court for the Southern District of New York, sitting by designation.2 Appeal from an August 14, 2017 judgment of the United States District Court for the Eastern District of New York (Weinstein, J .). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

. Brian Adams (“Adams”) appeals from a judgment of the United States District Court for the Eastern District of New Yo rk, following his guilty plea to f our counts of a seventeen-count superseding indictment charging him with, inter alia , sex trafficking of children. The district court sentenced Adams principally to a total of 15 years in prison fo llowed by a total of 10 years of supervised release. The district court also imposed several conditions on Adams’s supervised release; Adams challenges two of those condition s on appeal. We assume the parties’ familiarity with the underlying facts, the procedural history of the cas e, and the issues on appeal. We first address Adams’s challenge to the dist rict court’s condition of supervised release that he may not “view[], own[], and po ssess[] any obscene, pornographic or sexual[ly] stimulating, visual or auditory material.” A pp’x at 86. Because Adams did not object to this condition below, we review his claim for plain error. See Fed. R. Crim. P. 52(b); United States v. Dupes , 513 F.3d 338, 343 (2d Cir. 2008). 1 “A finding of ‘plain error’ requires th at (1) there is an error; (2) the error is clear or obvious, rather than subject to reasonab le dispute; (3) the error affected the appellant’s substantial rights, which in the ordinary case mean s it affected the outcome of the district court

1 We decline Adams’s invitation to apply a “relaxed” plain error standard of revi ew. We have previously applied such a “relaxed” standard in cases where a defendant lacked “a su fficient opportunity to raise a contemporaneous objection” to a condition of supervised release. United States v. Matta , 777 F.3d 116, 121–22 (2d Cir. 2015). Here, however, Adams had ample opportunity to object to this condition during his two-day sentencing hearing. In fact, during the hearing, Adams voiced opposition to a different condition of supervised release, and upon being asked the following day after imposition of the conditions whether Adams wanted to “add anything,” Adams did not use the opportunity to object to the condition that he is now challenging. See App’x at 126–28. We therefore see no reason to “relax” our plain error review here.3 proceedings; and (4) the error seriously affects the fa irness, integrity or public reputation of judicial proceedings.” United States v. Alvarado , 720 F.3d 153, 157 (2d Cir. 2013) (per curiam) (quoting United States v. Marcus , 560 U.S. 258, 262 (2010)). Adams sugge sts that the district court’s imposition of this condition was reversible error for two reasons; we reject both. First, Adams argues that the district court fa iled to provide an ad equate explanation for why this condition is reasonably related to the stat utory sentencing factors and is consistent with the relevant Sentencing Commission policy statements. Even assuming arguendo that Adams is correct that the district court fa iled to provide an adequate expl anation, however, any such alleged error is harmless. The explanation for such a condition “is self-evident in the record”— i.e. , the condition was a part of Adams’s mental health tr eatment plan that he himself had requested, and Adams acted in a sexually deviant manner towards both minors and adults—and “the condition[] meet[s] the purposes of supervised release” by furthering the goal of rehabilitation. See United States v. Balon , 384 F.3d 38, 41 n.1 (2d Cir. 2004). We th erefore decline to vacate Adams’s condition of supervised release on this basis. See id. ; see also United States v. Simmons , 343 F.3d 72, 82–83 (2d Cir. 2003) (upholding a district court’ s decision to impose a condition of supervised release that prohibited “por nography generally, not only . . . child pornography”). Second, Adams insists that the phrase “sexual[ly] stimulating . . . material” is so vague that the condition violates his due process rights. Even assuming arguendo that Adams has indeed identified error, however, we do not believe that the error is “plain”—that is, “clear or obvious, rather than subject to reasonable dispute.” See Alvarado , 720 F.3d at 157 (quoting Marcus , 560 U.S. at 262). Adams points to no binding precedent from this Court holding that this phrase is unconstitutionally vague, and “an error cannot be deemed ‘plain,’ in the absence of binding precedent, where”—as here—“there is a genuine dispute among the other circuits” concerning the4 issue. United States v. Whab , 355 F.3d 155, 158 (2d Cir. 2004); see, e.g. , United States v. Miller , 665 F.3d 114, 136–37 (5th Cir. 2011) (explaining that th e phrase “sexually stimulating [material]” in a supervised release condition is not impermissi bly vague and must be read in a “commonsense” way); United States v. Bee , 162 F.3d 1232, 1235 (9th Cir. 1998) (“ The district cour t did not abuse its discretion in prohibiting Bee from possessing se xually stimulating material as a condition of supervised release.”). Accordingly, Adams has not demonstrated that the district court plainly erred in imposing this conditi on of supervised release. See Alvarado , 720 F.3d at 157. Second, Adams challenges his mental health tr eatment condition, arguing that the district court left it ambiguous as to whether his treatment would be mandatory or at the probation department’s discretion. Although Adam s is correct that a sentencing judge may not delegate to a probation officer the authority to determine whethe r an individual must participate in a mental health treatment program, see United States v. Peterson , 248 F.3d 79, 85 (2d Cir. 2001) (per curiam), it is clear that the district court did not delegate such authority in this case. Adams specifically requested mental hea lth treatment in his sentencing su bmission, and the district court insisted during the sentencing hearin g that Adams “[o]bviously . . . ha d the order to ta ke psychiatric treatment.” App’x at 83. Thus, read in cont ext, the sentencing judg e’s allegedly ambiguous statement to the probation officer concerning Adam s’s treatment—“[i]f you order it, he’s to give it,” id. at 86—clearly referred to whether Adams mu st participate in pol ygraph testing, not to whether he must participat e in treatment at all. See also App’x at 150 (noting that Adams’s mental health treatment program “m ay include polygraph testing if deemed appropriate by his treating medical professionals ” (emphasis added)). Furthermore, to whatever extent the written judgment is ambiguous as to whether Adams’s treatmen t is mandatory, the district court’s oral pronouncement is not—and it is the or al pronouncement that controls. See United States v.5 Jesurum , 819 F.3d 667, 673 (2d Cir. 2016). Thus, because the district court “intend[ed] that the therapy be mandatory” and simp ly delegated the matter of pol ygraph testing to the probation officer’s discretion, Adams’s challenge to his supervised release condition fails. See Peterson , 248 F.3d at 85.
* * * We have considered Adams’s remaining argumen ts and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk