1 14-3951-cr United States v. Keith 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 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 DA TABASE (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 Unite d States Court of Appeals fo r the Second Circuit, held at the Thurgood Marshall United States Courth ouse, 40 Foley Square, in the City of New York, on the 1 st day of December, two thousand fifteen. PRESENT: AMALYA L. KEARSE, REENA RAGGI, RICHARD C. WESLEY, Circuit Judges

.

-------------------------------------- ------------------------ UNITED STATES OF AMERICA, Appellee , v. No. 14-3951-cr KYLE KEITH, Defendant-Appellant

.

-------------------------------------- ------------------------ APPEARING FOR APPELLANT: MARY AN NE WIRTH, Bleakley Platt & Schmidt, LLP, White Plains, New York. APPEARING FOR APPELLEE: STEVEN D. CLYMER, Assistant United States Attorney (Edward R. Br oton, Assistant United States Attorney, on the brief ), for Richard S. Hartunian, United States Attorney for the Northern District of New York, Syracuse, New York.2 Appeal from a judgment of the United Stat es District Court for the Northern District of New York (F rederick J. Scullin, Jr., Judge ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment entered on October 16, 2014, is AFFIRMED in part and VACATED and REMANDED in part. Defendant Kyle Keith, who pleaded guilty to one count of misusing a social security account number, see 42 U.S.C. § 408(a)(7)(B), a nd one count of aggravated identity theft, see 18 U.S.C. § 1028A(a )(1), appeals from the supervised release component of his senten ce insofar as it restricts his use of computers. We generally review the district court’s imposition of a co ndition of supervised release for abuse of discretion unless the defendant failed to object to the condition below, in which case our review is for plain error. See United States v. Green, 618 F.3d 120, 122 (2d Cir. 2010). We assume the parties’ familia rity with the facts and proc edural history of the case, which we reference only as neces sary to explain our decision. “[C]ourts have broad discretion to tailor conditions of supervis ed release” pursuant to 18 U.S.C. § 3583(d), United States v. G ill, 523 F.3d 107, 108 ( 2d Cir. 2008) (internal quotation marks omitted), provid ed that those conditions ar e “‘reasonably related’ to certain statutory sentencing factors listed in section 3553(a)(1) and (a)(2) of that title, ‘involve[] no greater deprivatio n of liberty than is reasonabl y necessary’ to implement the statutory purposes of sentencing, and [are ] consistent with pertinent Sentencing Commission policy statements,” United States v. Dupes, 513 F.3d 338, 343 (2d Cir. 2008) (quoting 18 U.S.C. § 3583(d)). The st atutory factors to which a special condition3 of supervised release must re asonably relate include (1) “the nature and circumstances of the offense and the history and characteristics of the defendant,” (2) the need “to afford adequate deterrence to crimin al conduct,” and (3 ) the need “to protect the public from further crimes of the defendant.” 18 U.S.C. §§ 3553(a)(1), (a)(2)(B), (a)(2)(C); see also United States v. Gill, 523 F.3d at 109. Keith challenges two conditions in par ticular. Challenged special condition 8 states, in relevant part, that Keith “shall not use or possess any co mputer or any other device with online capabilities, at any location, except at the defendant’s place of employment, unless [he] participates in the Computer Restriction and Monitoring Program”; and challenged special condition 9 states that “[i]f the defendant’s employment requires the use of a compute r, the defendant may use a computer in connection with the employment approved by th e probation officer, at the defendant’s place of employment, provided the defendant no tifies [his] employer of : (1) the nature of the defendant’s conviction; and (2) the fact that the defendant’s conviction was facilitated by the use of the computer.” J.A. 94. Keith faults condition 8 for not making cl ear whether it (1) permits him to use computers only at his place of employment, bu t nowhere else, and onl y then if his work computer is subject to monitoring; or (2) permits unmonitored computer use at his place of employment and monitored computer use at other locations. We are not persuaded. Although conditions of supervised release must “give the pers on of ordinary intelligence a reasonable opportunity to know what is prohi bited,” they must also “be read . . . in a commonsense way.” United Stat es v. Balon, 384 F.3d 38, 43 (2d Cir. 2004) (internal4 quotation marks omitted). Here, a commonsen se reading of condition 8 makes clear that Keith is permitted to use a computer at locati ons other than his plac e of employment, but requires him to submit to monitoring when usin g a computer “at any location, except at [his] place of employment.” J.A. 94 (emphasis a dded). This is reinfo rced by condition 9, which imposes distinct requirements on Keith ’s use of a computer at his place of employment. Keith’s contention that condition 8 is no t reasonably related to his history and characteristics is similarly unavailing. The re cord before the district court established that numerous images of child pornography we re retrieved from Keith ’s computer in the course of the investigation leading to his present convictions. Wh ile Keith maintained that the images had been pl aced on his computer by some one else, see J.A. 76–77, the district court found that his explanation was not credible, see J.A. 85–86 (explaining that district court found information in Presentenc e Investigation Report more credible than “representations made . . . in court”). We afford this cred ibility determination “substantial deference,” United States v. No rman, 776 F.3d 67, 78 (2d Cir. 2015), and conclude that requiring Keith to submit to monitoring of his non-employment use of a computer was appropriately tailored to th is history to deter Keith’s future online procurement of child pornography, see Unite d States v. Dupes, 513 F.3d at 344 (concluding that, in sentencing defendan t for securities fraud, district court was authorized to impose special conditions of supe rvision related to defe ndant’s history as a sex offender); cf. United States v. Pete rson, 248 F.3d 79, 82–84 (2d Cir. 2001) (concluding that total prohibition on com puter use was not reasonably related to5 defendant’s prior incest conviction). Accordi ngly, we identify no a buse of discretion in the district court’s imposition of special co ndition 8 and, thus, n eed not resolve the parties’ dispute as to whether Keith prop erly preserved the challenge for appellate review. As to condition 9, Keith argu es that conditioning his com puter use at work on his advising his employer of the nature of hi s conviction and its facilitation by use of a computer bears no reasonable rela tionship to the nature and ci rcumstance of his offense, the need to deter criminal condu ct, or the need to protect th e public from further crimes. We note that condition 9 requires no notificati on to an employer of Keith’s use of a computer in connection with child pornography; it requires notice only of computer use to facilitate the crime of convi ction. The governme nt, however, concedes the lack of any record “that Keith’s offenses of conviction—mi suse of a Social Secu rity account number and aggravated identity theft in connection with his application for a credit card—were facilitated by use of a compute r.” Appellee Br. 32. Nevertheless, it argues that condition 9 reasonably requires Keith to inform his em ployer that his “criminal assumption of a false identity . . . involved the use of a co mputer,” Appellee Br. 32 (emphasis omitted), because Keith’s Presentence In vestigation Report indicates that documents bearing the assumed false name were retrieved from Keit h’s computer. The r ecord does not permit us to conclude with confidence that the district court intended for condition 9 to be construed as the government urges, nor ca n we readily discern the district court’s rationale for requiring such disclosure in light of appa rent inconsistencies in the government’s position on appe al as to whether Keith “u sed” a computer in the6 commission of his offense. Accordingly, we vacate special condition 9 and remand for the district court to consid er further what, if any, co ndition for employer notice is required in this case and to clarif y the reasons for any such condition. 1 We have considered all of Keith’s argum ents and except as indicated we found them to be without merit. For the foregoing reasons, we AFFIRM in part and VACATE and REMAND in part consis tent with this order.
FOR THE COURT: CATHERINE O’HAGAN WOLF E, Clerk of Court

1 Because we remand for further consideration of special condition 9 on this ground, we need not consider Keith’s contention that th is condition’s requirements are unclear in the event of his future self-emp loyment. Any such concerns are more appropriately addressed when and if Keith pursues self-e mployment. See 18 U.S.C. § 3583(e)(2) (permitting court to “modify, reduc e, or enlarge the conditions of supervised release, at any time prior to the expiration or termination of the term of supervised release”); United States v. Balon, 384 F.3d at 47 (explaining that “Section 3583(e) allows modification of conditions of supervised release to account for new or unfores een circumstances” (internal quotation marks omitted)); accord United States v. Kyles, 601 F.3d 78, 86 (2d Cir. 2010).