1 19

- 1439 United States v. Pellistri

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 Sec ond Circuit, held 1 at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New 2 York, on the 2 8 t h day of A p r i l , two thousand twenty

. 3 4 PRESENT: G UIDO C ALABRESI , 5 R ICHARD C. W ESLEY , 6 J OSEPH F. B IANCO , 7 Circuit Judges

. 8 9 10 U NITED S TATES OF A MERICA , 11 12 Appellee
, 19

- 1439

- cr 13 14

v. 15 16 G ARY P ELLISTRI , J R

. , 17 18 Defendant

- Appellant

. 19 20 21 For Appellee : Andrew D. Beaty , Assistant United 22 States Attorney, for Grant C. Jaquith, 23 United States Attorney for the Northern 24 District of New York, Syracuse, NY. 25 26 For Defendant

- Appellant: Molly K. Corbett and James P. Egan
, 27 Assistant Federal Public Defender s , for 28 Lisa A. Peebles , Federal Public 29 Defender, Northern District of New 30 York, Albany, NY. 31 322 1 Appeal from a judgment of the United States District Court for the Northern District of 2

New York ( Sharpe
, J

. ). 3

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 4

DECREED that the judgment of the d istrict c ourt is AFFIRMED in part and VACATED in 5

part and REMANDED for further proceedings

. 6

Defendant

- Appellant Gary Pellistri, Jr., appeals from a judgment of conviction entered on 7
May 9, 2019 following Pellistri’s guilty plea for attempted coercion and enticement of a minor, 8

in violation of 18 U.S.C. § 2422(b) . Pellistri challenges the length of his supervised release and 9
four of the special conditions of supervised rele ase imposed on him

— namely, special conditions 10

three and four , which place limits on Pellistri’s ability to be in locations where minors are likely 11
to be present or for the purpose of viewing minors; special condition 11 , which requires Pellistri 12
to partici pate in a substance abuse program; and special condition 13 , which prohibits alcohol 13

use

. We assume the parties’ familiarity with the underlying facts, the procedural history of the 14
case, and the issues on appeal. 15

DISCUSSION 16

I. Lifetime Supervised Release 17

Pellistri argues that the district court’s imposition of a life term of supervised release was 18

unreasonable

. Although Pellistri did not explicitly state whether he is challenging the procedural 19

and/or substantive reasonableness of the s entence , we address both given the nature of his 20

arguments

. 21

A. Procedural Reasonableness 22

Where, as here, a defendant fails to raise a procedural objection at sentencing, we review 23
those claims for plain error. United States v. Verkhoglyad , 516 F.3d 122, 128 (2d Cir. 2008). 243 Under the plain error standard, Pellistri bears the burden of showing: (1) there was an error; (2) 1
the error is “clear or obvious, rather than subject to reasonable dispute;” (3) “the error affected 2
[his] substantial rights, which in the ordinary case means it affected the outcome of the district 3
court proceedings;” and (4) the error “seriously affects the fairness, integrity or public reputation 4
of judicial proceedings.” United States v. Marcus , 560 U.S. 258, 262 (2010) (quotati o n marks 5

omitted and alteration in original )

. 6

We conclude that t he district court ’s sentence of a life term of supervised release was 7
procedurally reasonable

. Pellistri argues that the district court committed procedural error 8

because it failed to adequate ly explain its reasons for imposing a life term of supervised release 9
and inappropriately stated that it was “ compensat[ing] for any potential error ” in the district 10

co urt’s judgment to impose a below

- G uidelines incarceratory sentence. Pellistri Br. at 12

. 11
We disagree. District courts are required to consider certain factors set forth in 18 U.S.C. 12

§ 3553( a) when determining the length o f a term of supervised release

. See 18 U.S.C. § 3583(c). 13
“Absent record evidence suggesting the contrary, we presume that a sentencing judge has 14
faithfully discharged her duty to consider the statutory factors, and have steadfastly refused to 15
require judges to explain or enumerate how such consideration was con ducted.” United States v. 16

Olsen , No. 19

- 1104

- cr, 2020 WL 1514742, at *1 (2d Cir. Mar. 30, 2020) ( s ummary o rder) 17
(quoting United States v. Kimber , 777 F.3d 553, 565 (2d Cir. 2015) )

. Applying that presumption 18

here, we find that the district court considere d the applicable S ection 3553 (a) factors and stated 19
“the reasons for its imposition of the particular sentence.” 18 U.S.C. § 3553(c). At sentencing, 20

t he district court noted that Pellistri had a history of conduct directed at young, prepubescent 21
girls an d that it was “extraordinarily concerned” about other allegations of conduct with minors 22

reflected in the presentence report (“ PSR ”) that “fit the very profile of wh at [Pellistri] did in this 234 case. ” App’x at 86

- 88 . B ased on its assessment, the district court concluded that a life term of 1
supervised release was “absolutely warranted” because he posed “a real threat to young 2

females. ” App’x at 87

- 88. When understood as part of the district court’s broader discussion of 3

the seriousness of Pellist ri’s offense and his p attern of similar behavior , the district court’s 4
explanation for its imposition of a life term of supervised release was sufficient. 5
We also reject Pellistri’s argument that the district court’s statement that it was 6
“compensat[ing] for any potential error ,” App’x at 88, violated Section 3553(a)’s parsimony 7
clause because that statement does not suggest that the district court understood the term of 8
supervised release to be greater than necessary. Instead, while imposing a 15

- year t erm of 9
imprisonment that was substantially below the Sentencing Guidelines range of 360 months’ to 10
life imprisonment, the district court determined that, when the defendant was no longer 11

incarcerated, a life term of supervision (with the accompanying speci al conditions) was 12
necessary to adequately protect the public

. Therefore, we hold that the district court commit ted 13

no procedural err or by imposing a life term of supervised release. 14

B. Substantive Reasonableness 15

We review sentences for substantive reaso nableness under a “deferential abuse

- of

16

discretion standard.” Gall v. United States , 552 U.S. 38, 41 (2007); see also United States v. 17

Broxmeyer , 699 F.3d 265, 278 (2d Cir. 2012) (“[O]ur standard is reasonableness, a particularly 18

deferential form of abuse

- of

- discret ion review

. . . . ” (quotation marks omitted)). A sentence is 19
substantively unreasonable “only if it cannot be located within the range of permissible 20

decisions.” United Stat es v. Bonilla , 618 F.3d 102, 108 (2d Cir. 2010) (quotation marks 21
omitted). As we have observed before, “in the overwhelming majority of cases, a Guidelines 22
sentence will fall comfortably within the broad range of sentences that would be reasonable in 235 the particular circumstances.” United States v. Fernandez , 443 F.3d 19, 27 (2d Cir. 2006), 1
abrogated on other grounds by Rita v. United States , 551 U.S. 338, 364 (2007). 2
We also reject Pellistri ’s challenge to the substantive reasonableness of his term of 3

su pervised release

. In this case, the Sentencing Guidelines call for a life term of supervised 4

release. See U.S.S.G. § 5D1.2(b)(2) & cmt. 1

. However, we have emphasized that “[t]he fact 5
that the Sentencing Guidelines recommend a lifetime term of supervise d release does not, of 6

course, suffice to make [a defendant’s] sentence reasonable.” United States v. Hayes , 445 F.3d 7

536, 537 (2d Cir. 2006) ( citing United States v. Crosby , 397 F.3d 103, 115 (2d Cir. 2005)). 8
Moreover, “the severity of a life sentence o f supervised release justifies a closer look at the 9
district court’s decision to impose such a sentence.” United States v. Brooks , 889 F.3d 95, 101 10
(2d Cir. 2018). Here, there was a more than adequate basis to support the life term of supervised 11

release given the gravity of the instant offense involving an attempt through online 12

communications to entice a 13

- year

- old girl to engage in sexual activity , as well as a history of 13

similar behavior towards minors. See also , e.g. , Hayes , 445 F.3d at 537 ( holding that a life term 14
of supervised release was reasonable where defendant transported child pornography)

. 15
Therefore, the district court’s imposition of a life term of supervised release was not 16
substantively unreasonable

. 17

II. Special Conditions 18

Pellistri argues that we should vacate four of the special conditions imposed upon him, 19
specifically, special conditions three and four , which place limits on Pellistri’s ability to be in 20
locations where minors are likely to be present or for th e purpose of viewing minors; special 21

condition 11 , which requires Pellistri to participate in a substance abuse program; and special 22

condition 13 , which prohibits alcohol use. 236 “District courts possess broad discretion in imposing conditions of supervised release.” 1

United States v. Betts , 886 F.3d 198, 202 (2d Cir. 2018). A district court may impose special 2
conditions that are reasonably related to “the nature and circumstances of the offense and the 3
history and ch aracteristics of the defendant,” “the need for the sentence imposed to afford 4
adequate deterrence to criminal conduct,” “the need to protect the public from further cr imes of 5

the defendant,” and “the need to provide the defendant with needed educational or vocational 6
training, medical care, or other correctional treatment in the most effective manner,” which 7
“involve no greater deprivation of liberty than is reasonably necessary” for these purposes. 8

U.S.S.G. § 5D1.3(b); see also United States v. Myers , 426 F.3d 117, 123

- 25 (2d Cir. 2005). 9

Nevertheless, a district court ’ s discretion to impose special conditions is not “untramme l led,” 10
and we will “carefully scrutinize unusual and severe conditions.” Myers , 426 F.3d at 124 11
(quotation marks omitted). 12
When determining whether to impose special conditions, “ [a] district court is required to 13

make an individualized assessment

. . . , and to state on the record the reason for imposing it; the 14

failure to do so is error. ” Betts , 886 F.3d at 202. However, even when the district court does not 15
provide such an explanation, the condition at issue can be upheld “ if the district court’ s reasoning 16

is self

- evident in the record.” Id. (quotation marks omitted). Because Pellistri received notice of 17

th ese condition s prior to sentencing and failed to object to them, we review the district court’s 18
imposition of these special conditions for plain error. 1 See United States v. Dupes , 513 F.3d 338, 19

343 & n.2 (2d Cir. 2008). 20

1 Pellistri argues that plain error review is inapplicable because the special conditions were not included in the PSR. Pellistri Br. at 17 (citing United States v. Simmons , 343 F.3d 72, 80 (2d Cir. 2003)). We have previously applied plain error standards less rigorously in cases where the7 A. Contact with Minors 1

Pellistri requests vacatu r of special condition three , which state s that Pellistri “must not 2
go to, or remain at, any place where [he] know [s] children under the age of 18 are likely to be, 3
including parks, schools, playgrounds, and childcare facilities without the permission of the 4
probation officer
, ” 2 and special condition four, which states that Pellistri “must not go to, or 5
remain at, a plac e for the primary purpose of observing or contacting children under the age of 6

18. ” App’x at 95. Pellistri argues that these condition s are overly broad and unconstitutionally 7

vague

. His argument is not persuasive. 8
We recently affirmed identical speci al conditions Olsen

. 2020 WL 1514742, at *1

- 2

. 9
The reasoning in that case

— where the defendant was convicted of sexual exploitation of a 10

child

— applies with equal force here, where the defendant was convicted of attempting to lure a 11

minor across state line s to engage in sexual acts with her. Moreover
, as discussed supra , the 12

district court noted that Pe llistri has a history of exhibiting inappropriate sexual behavior towards 13

minors

. A t sentencing, the court noted that the offense at issue in this case and Pellistri’s history 14

of inappropriate behavior towards minors warranted a need to protect the public from the 15

PSR failed to give the defendant notice that the condition of supervised release might be imposed. See, e.g.
, Dupes , 513 F.3d at 343. However, Pellistri had prior notice of the special conditions that the district court intended to impose via a court exhibit, Gov. App’x at 1, and had an opportunity to object to them in advance of sentencing, at the time his sentence w as imposed, and after wards
, see App’x at 89 (defense counsel reserving right to object to conditions of supervised release during the week after sentencing). He did not do so. Therefore, it is Pellistri’s burden to demonstrate plain error. See Dupes , 51 3 F.3d at 343 & n.2 (“In this case, the presentence report, which Dupes reviewed with counsel, recommended the conditions to which he failed to object and now challenges on appeal. We see no circumstances warranting the relaxation of the plain error stand ard in this case.”).

2 We have previously treated the phrase “likely to be” as synonymous with the phrase “likely to congregate.” See United States v. MacMillen , 544 F.3d 71, 75 (2d Cir. 2008). We view the two phrases as having the same meaning here.8 defendant. Therefore, w e find these special condition s are narrowly tailored to “involve no 1
greater deprivat ion of liberty than is reasonably necessary ” to achieve that goal. See U.S.S.G. 2

§ 5D1.3(b); see also Olsen , 2020 WL 1514742, at *1

- 2. Moreover, as set forth in Olsen , these 3
conditions provide a defendant with sufficient notice as to what conduct is prohibited and, thus, 4
the unconstitutional vagueness challenge fails. See Olsen , 2020 WL 1514742, at *2 (holding that 5
identical conditions were not unconstitutionally vague). 6

B

. Substance Abuse Program 7

Pellistri next challe nges s pecial c ondition 11 , requiring him to participate in a substance 8
abuse program

. The Sentencing Guidelines specifically provide that
, if the court has reason to 9

believe that the defendant has a drug or alcohol problem, special conditions requiring that the 10
defendant participate in abuse programs that include testing for those substance s to ensure 11
abstinence are appropriate. U.S.S.G. § 5D1.3(d)(4). W e have previously vacated special 12
conditions requiring participation in substance abuse programs where the conditions were not 13
“reasonably related to the circumstances of [the defendant’s] offense” and there was no history 14

of substance abuse

. See United States v. Mears , 758 F. App’x 92, 96 (2d Cir. 2018). I n this 15

case, Pellistri admitted that he began using marijuana approximately weekly in his late twenties 16

and continued until the time of his arrest

. Therefore, given that defendant has a history of using 17
illegal drugs
, the district court did not plainly err in requiring the defendant to participate in a 18
substance abuse program. See Betts , 886 F.3d at 202. 3 19

3 Although this condition is warranted based upon the record before the district court at sentencing, the Court recognizes that the defendant’s rehabilitation in jail, as well as potential future changes to federal and state laws with respect to marijuana use, could materially impact whether this condition will still be necessary by the time the defendant serves his 15

- year term of imprisonment and is placed on supervised release. However, the procedural mechanism for9 C

. Use of Alcohol 1

Finally , both the defendant and the Government agree that the district court did not 2
adequately articulate its reasons for imposing special condition 13 : that Pellistri refrain from the 3

use of alcohol . Nor is the district court’s reasoning self

- evident in the re cord

— which indicates 4
only that Pellistri drank alcohol once or twice per month at most

. Pellistri ’s underlying crime did 5

not involve the use of alcohol, and the d istrict c ourt was not presented with “any evidence 6
suggesting that defendant ever seriously a bused alcohol.” Id. at 202

- 03 (vacating special 7
condition banning all alcohol use where none of the defendant’s underlying conduct involved the 8

use of alcohol)

. Thus, w e conclude that the special condition banning all alcohol use for life is 9

not reasonab ly related to any of the factors outlined in Section 5D1.3(b) and necessitates vacatur. 10
Accordingly, the district court’s imposition of special condition 13 is vacated
, and the case is 11
remanded for further consideration. Upon remand, the district court should either articulate 12

individualized reasons for imposing special condition 13 or remove that special condition. 13
We have considered Pellistri’s remaining arguments and conclude they are without merit. 14
Accordingly, judgment of the d istrict c ourt is AFFIRMED in part and VACATED in part and 15

REMANDED for further consideration

. 16

17 FOR THE COURT: 18 Catherine O’Hagan Wolfe, Clerk of Court 19

addressing any such changed circumstan ces would be for the defendant to seek modification of the special condition in the district court at that time.