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11-3647-cr 

United States v. Keenan 

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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New 

York, on the 2nd day of October, two thousand twelve. 

PRESENT: 

PIERRE N. LEVAL, 

JOSÉ A. CABRANES, 

ROBERT A. KATZMANN, 

Circuit Judges. 

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UNITED STATES OF AMERICA, 

 Appellee,

 -v.- No. 11-3647-cr 

 

KANE KEENAN, 

 

 Defendant-Appellant. 

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 FOR APPELLANT: Lee C. Kindlon, Kindlon Shanks & Associates, Albany, NY.

 FOR APPELLEE: Paul D. Silver, Assistant United States Attorney (Richard Belliss, 

Assistant United States Attorney, on the brief), Albany, NY, for

Richard S. Hartunian, United States Attorney for the Northern 

District of New York. 
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Appeal from an August 31, 2011 judgment of the United States District Court for the Northern 

District of New York (David N. Hurd, Judge). 

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 

DECREED that the cause is REMANDED with instructions for resentencing. 

Kane Keenan appeals from an August 31, 2011 judgment of the District Court convicting him, 

after a guilty plea, on a single count of possession of child pornography in violation of 18 U.S.C. 

§ 2252A(a)(5)(b), and sentencing him principally to a prison term of thirty months. We assume 

familiarity with the underlying facts and procedural history of this case. 

This appeal arises out of Keenan’s plea of guilty to a charge related to the possession of child 

pornography. The parties did not enter into a plea agreement. At sentencing, the District Court 

calculated Keenan’s sentencing guidelines and determined that, in light of the sentencing factors 

delineated in 18 U.S.C. § 3553(a) and the skepticism regarding the sentencing guidelines applicable to 

child pornography expressed by this Court in United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010), a 

downward variance from the recommended Guidelines range was appropriate. Explaining that Keenan 

“deserve[d] a prison term,” although not of the length called for by the Federal Sentencing Guidelines, 

the Court stated, “I will sentence you to sufficient time so that you can get treatment while in prison.” 

The Court thereafter imposed a prison term of thirty months. 

The Court proceeded to impose special conditions of supervised release upon the defendant, 

some orally and others by reference to a document to which Keenan’s attorney had had the opportunity 

to object in writing. The Court’s written judgment, entered two days after the sentencing proceeding 

took place, prohibited Keenan from (1) having any contact, whether direct or indirect, with children 

under the age of 18; (2) using or possessing a computer with Internet access, unless any such computer 

could be monitored by the Government; and (3) possessing any sexually explicit materials, whether legal 

or illegal. 

On appeal, Keenan argues that (1) his sentence was procedurally unreasonable because the 

District Court erroneously (a) based the length of his sentence on his need for rehabilitation and (b) 

failed to adequately consider his arguments for a lower sentence; (2) the sentence was substantively 

unreasonable because it gave too much weight to the Guidelines, despite the Court having undertaken a 

substantial variance from the recommended Guidelines sentencing range; and (3) the special conditions 

imposed upon his supervised release were overbroad or otherwise improper. 
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DISCUSSION 

A. The Length of the Sentence 

Keenan argues that the District Court erred in sentencing him to a longer term of imprisonment 

than it would have otherwise imposed, in order to ensure that Keenan had access to rehabilitative 

programs while incarcerated. The Government concedes that the District Court seemed to imply that it 

was considering Keenan’s rehabilitative requirements when it determined the length of his sentence. As 

both parties correctly argue, such a rationale for extending the length of an incarceratory sentence was 

deemed impermissible by the Supreme Court in Tapia v. United States, 131 S. Ct. 2382 (2011). 

In Tapia, the Supreme Court addressed a sentence in which the district court had extended the 

sentence it would otherwise have imposed in order to ensure that the defendant was eligible for a 

particular treatment program. Id. at 2385. Observing that “imprisonment is not suitable for the purpose 

of promoting rehabilitation,” the Supreme Court held that sentencing courts should “consider the . . . 

rationales of punishment except for rehabilitation, which [they] should acknowledge as an unsuitable 

justification for a prison term.” Id. at 2388 (emphasis omitted). Accordingly, although sentencing courts 

are permitted to discuss the issue of rehabilitation when crafting a sentence, id. at 2391–92, after Tapia it 

is clear that courts may not extend the length of an incarceratory sentence in order to accommodate the 

requirements of rehabilitation. See id. at 2391 (“[18 U.S.C. §] 3582(a) precludes sentencing courts from 

imposing or lengthening a prison term to promote an offender’s rehabilitation.”). 

We agree with the parties that it appears the District Court may have based its sentencing 

decision in part upon the consideration of the length of time necessary to provide Keenan with proper 

rehabilitation. See Joint App’x at 76 (Transcript of Sentencing Proceeding, August 29, 2011) (“I will 

sentence you to sufficient time so that you can get treatment while in prison.”). It would have been 

error for the District Court to base its sentence, even in part, upon the length of time Keenan would 

need to be incarcerated in order to participate in rehabilitative programming. 

On the record before us, we cannot independently determine the degree, if any, to which the 

length of the sentence was influenced by that impermissible consideration. Cf. United States v. Yousef, 327 

F.3d 56, 156 (2d Cir. 2003) (“We are free to affirm an appealed decision on any ground which finds 

support in the record, regardless of the ground upon which the trial court relied.” (quotations and 

citations omitted)). We note also that the Government has conceded that the District Court’s statements 

at sentencing may indicate Tapia error, and has suggested that a remand is appropriate. We therefore 

remand the cause to the District Court with instructions to clarify on the record any effect its 

consideration of rehabilitation had upon the length of Keenan’s sentence and, if such a consideration 

did enter into the Court’s determination of the appropriate length of the sentence, to revise the sentence 
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accordingly.1

B. Restriction on Contact with Children 

Keenan argues that the District Court’s prohibition of any “direct [or indirect] contact with a 

person under the age of 18 unless it is supervised by a person approved by the probation officer,” has 

the effect of precluding him from contact with his own children, and that we should remand the cause 

to the District Court with instructions to permit him to see his children without restriction. The 

Government agrees that the special conditions of supervised release that would interfere with Keenan’s 

ability to spend time with his children and other minor family members (i.e., Special Conditions Three 

and Four) may be inappropriate. The Government does not appear to argue that Keenan is likely to be a 

danger to his family, and it requests that we remand the cause to the District Court in order to permit it 

to reconsider and modify the scope of Special Conditions Three and Four as they relate to Keenan’s 

contact with his family. 

On the basis of the agreement of the parties, we remand the cause to the District Court for 

reconsideration of the portion of the judgment that imposed the allegedly overbroad Special Conditions 

Three and Four, with instructions to reconsider the limitations that the Court placed upon the 

interactions between Keenan and his minor children and relatives. The Government concedes that 

Keenan may have a protected liberty interest in contact with his children, which the District Court’s 

conditions may violate. The Government urges that we remand to allow the District Court to inquire 

into these questions. The District Court should make appropriate findings if it decides to continue 

imposing restrictions on Keenan’s contact with his own children. 

C. Other Issues 

The remaining issues on appeal include, inter alia, Keenan’s argument that prohibiting him from 

(a) using or possessing a computer with Internet access, unless any such computer is monitored by the 

Government, (b) possessing any sexually explicit materials, whether legal or illegal, and (c) having any 

“indirect” contact with children using various communications media including telephone or radio, are 

inappropriate and overbroad. Keenan also opposes several other restrictions on his use of a computer 

at work and elsewhere. 

We have considered the parties’ arguments with regard to each of the other issues on appeal, 

including any not specifically mentioned here, and conclude that each of Keenan’s remaining arguments 

is meritless. On remand, the District Court shall reconsider the length of the sentence and the special 

conditions noted above. If the Court decides to remove or alter any of these provisions, it should 

 

1 We note that, because we remand for resentencing, Keenan’s remaining arguments regarding the length of his sentence are 

moot.
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vacate the sentence and impose a new sentence. Regardless of whether the Court decides to retain these 

provisions without change, or to eliminate or modify them, the Court should add findings and 

explanations justifying the ultimate sentence. 

CONCLUSION 

We have carefully reviewed the record and the parties’ arguments on appeal and, except as stated 

above, we determine that the defendant’s arguments are meritless. The August 31, 2011 judgment of the 

District Court is remanded for further proceedings consistent with this order. 

FOR THE COURT, 

 Catherine O’Hagan Wolfe, Clerk of Court