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18-3458-cr

United States v. Aurand

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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, 

on the 3rd day of May, two thousand twenty-two.

PRESENT: JOSÉ A. CABRANES,

JOSEPH F. BIANCO,

EUNICE C. LEE,

Circuit Judges.

UNITED STATES OF AMERICA,

Appellee, 18-3458-cr

v.

SHANE AURAND,

Defendant-Appellant.

FOR APPELLEE: Tiffany H. Lee, Assistant United States 

Attorney, for Trini E. Ross, United States 

Attorney, Western District of New York, 

Buffalo, NY.

FOR DEFENDANT-APPELLANT: Brendan White, White & White, New 

York, NY.

Appeal from a judgment of the United States District Court for the Western District of New 

York (Lawrence J. Vilardo, Judge).
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UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the judgment of the District Court be and hereby is

AFFIRMED.

Shane Aurand pleaded guilty to one count of distributing child pornography. See 18 U.S.C. 

§ 2252A(a)(2)(A). He was subsequently sentenced to 180 months’ imprisonment, to be followed by 

lifetime supervised release. Aurand appeals from one supervised release condition: that “[h]e shall 

refrain from the possession or use of pornographic materials including videos, magazines, or other 

electronically stored images” (the “Pornography Condition”). App’x 118.1

 We assume the parties’ 

familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. 

A bar on possessing otherwise legal adult pornography—which is protected by the First 

Amendment—“must be supported on the record by detailed factual findings establishing that the 

proposed ban is reasonably related to the sentencing factors set forth in 18 U.S.C. § 3553(a) and that 

it is reasonably necessary to accomplish their objectives.” United States v. Eaglin, 913 F.3d 88, 99 (2d 

Cir. 2019). We assume without deciding that the District Court erred by not making such detailed 

factual findings on the record. 

However, any error did not “seriously affect[] the fairness, integrity or public reputation of 

judicial proceedings.” See United States v. Olano, 507 U.S. 725, 731–32 (1993) (explaining that errors 

not raised below are subject to plain error review under Fed. R. Crim. P. 52(b)) (internal quotation 

marks omitted). We have held that, where “the reason for [a supervised release] condition[] is selfevident in the record . . . and the condition[] meet[s] the purposes of supervised release, any error of 

the district court [in failing to expressly articulate on the record why it imposed this condition] is 

harmless.” United States v. Balon, 384 F.3d 38, 41 n.1 (2d Cir. 2004).

Here, the District Court imposed the Pornography Condition because it was recommended 

by Aurand’s treatment specialist. See App’x 120 (“I just wanted to make sure . . . to impose the 

conditions that Dr. Heffler included in his report.”). In light of this reference, the District Court’s 

reasoning is self-evident. Dr. Heffler’s report explains that Aurand is “compulsively obsessed with 

sexual activity with children,” and that this addiction is reinforced by the release of the chemical 

dopamine when Aurand is sexually aroused by pornographic media. Report 21–22. The evaluation 

concludes that this “fixation . . . is best addressed through development of methods to manage these 

desires or impulses.” Id. at 21. The Pornography Condition thus self-evidently seeks to encourage 

1 While the District Court orally imposed this condition, it is not included in the written 

judgment. In such circumstances, “the oral sentence generally controls,” because “the oral sentence 

. . . constitutes the judgment of the court, and . . . is authority for the execution of the court’s 

sentence,” while “[t]he written commitment order is mere evidence of such authority.” United States 

v. DeMartino, 112 F.3d 75, 78–79 (2d Cir. 1997) (citation omitted). 
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Aurand to manage his fixation and discourage reactivating it, reducing what Aurand’s treatment 

specialist described as “a high risk of recidivism.” App’x 123. This is consistent with the purpose of 

supervised release “to protect the public from further crimes of the defendant.” United States v. 

Johnson, 529 U.S. 53, 59 (2000) (quoting 18 U.S.C. § 3553(a)).

We have reviewed all of the arguments raised by Aurand on appeal and find them to be 

without merit. For the foregoing reasons, we AFFIRM the October 23, 2018, judgment of the 

District Court.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court