1 19-1104-cr United States v. Olsen 

### 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 DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELEC TRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SU MMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Cour t 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 30 th day of March, two thousand twenty.
Present: ROBERT A. KATZMANN, Chief Judge , RICHARD C. WESLEY, MICHAEL H. PARK, Circuit Judges

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_____________________________________ UNITED STATES OF AMERICA, Appellee , v. No. 19-1104-cr JOSHUA DAVID OLSEN, AKA JOSHUA OLSEN, Defendant-Appellant

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_____________________________________ For Appellee: Thomas R. Sutcliffe, Geoffrey J.L. Brown, Assistant United States Attorneys, for Grant C. Jaquith, United States Attorney for the Northern District of New York, Syracuse, NY. For Defendant-Appellant: James P. Egan, Assistant Federal Public Defender, Syracuse, NY.2 Appeal from a judgment of the United States District Court for the Northern District of New York (D’Agostino, J .). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

. Defendant-appellant Joshua David Olsen appe als from a judgment of conviction entered on April 19, 2019 by the United States District Court for the Northern District of New York (D’Agostino, J. ) imposing a sentence consisting princi pally of 240 months’ imprisonment after Olsen pleaded guilty to five coun ts of sexual exploitation of a ch ild in violation of 18 U.S.C. § 2251(a) and (e). We assume the parties’ familiarity with the underlying facts, the procedural history of the case, a nd the issues on appeal. Olsen first argues that the district court comm itted procedural error by relying on a clearly erroneous fact in sentencing Olsen. In reviewing this challenge, “our standard is reasonableness, a particularly deferential form of abuse-of-discretion review that we apply both to the procedures used to arrive at the sentence (procedural reasonableness) and to the length of the sentence (substantive reasonableness).” United States v. Broxmeyer , 699 F.3d 265, 278 (2d Cir. 2012). 1 A district court commits procedural error where it improperly calcul ates the Sentencing Guidelines range, fails to consider the factors enumerated in 18 U.S.C. § 3553(a), rests its sentence on a clearly erroneous finding of fact, or fails adequa tely to explain its chosen sentence. United States v.
Cavera , 550 F.3d 180, 190 (2d Cir. 2008) (en banc). Where a defendant fails to raise his procedural reasonableness challenge below, we review for plain error. United States v. Degroate , 940 F.3d 167, 174 (2d Cir. 2019). “To establish plain error, a defendant must demonstrate that : (1) there is

1 Unless otherwise indicated, in quoting cases, we omit all internal citations, quotation marks, footnotes, and alterations.3 an error; (2) the error is clear or obvious, rather than subject to reasonable dispute; (3) the error affected the defendant’s substan tial rights, which in the ordinary case means it affected the outcome of the district court pro ceedings; and (4) the error seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id. We do not, however, apply the plain error doctrine stringently in the sentencing context. See United States v. Wernick , 691 F.3d 108, 113 (2d Cir. 2012). First, Olsen challenges the distri ct court’s statement that he “threatened” two of his minor victims when he instructed them to engage in oral sex. App’x 93. According to Olsen, the record supplies no evidence of a threat in connection with the episode at issue. But Paragraph 16 of the pre-sentence report, to which Ol sen did not object, indicates that at one point during Olsen’s interactions with one of the minor victims who engaged in oral sex, Olsen threatened to post explicit pictures of the minor vic tim for his friends to see and thre atened to have a parent punish him. Accordingly, the district court did not clearly err in making the statement. Second, Olsen argues that the district court co mmitted procedural e rror because it failed adequately to explain its reasons for imposi ng a 30-year term of s upervised release and inappropriately stated that it was “erring on the side of ca ution” in doing so. App’x 99. We disagree. District courts ar e required to consider certai n 18 U.S.C. § 3553 factors when determining the length of a term of supervised releas e. 18 U.S.C. § 3583. “Absent record evidence suggesting the contrary, we presume that a sentencing j udge has faithfully discharged her duty to consider the statutor y factors, and have steadfastly refused to require judges to explain or enumerate how such consideration was conducted.” United States v. Kimber , 777 F.3d 553, 565 (2d Cir. 2015). Applying that presumption here, we concl ude that the district court satisfied its obligation to consider the relevant fa ctors and to “state in open court the reasons for4 its imposition of the particular sentence.” 18 U.S.C. § 3553(c). It stated th at its imposition of a 30-year term of supervised release was driven primarily by its desire to prevent Olsen from reoffending upon release from prison. When understood as part of the dist rict court’s broader discussion of the seriousness of Olsen’s offense and his prior sexual rela tionship with a minor, the district court’s explanation for its imposition of a 30-year te rm of supervised release was sufficient. We also reject Olsen’ s argument that the district cour t’s statement that it was “erring on the side of caution” violated the 18 U.S.C. § 3553(a)’s parsimony clause because that statement does not suggest that th e district court understood the term of supervised release to be greater than necessary. See 18 U.S.C. § 3553(a). Finally, Olsen challenges the district court’ s imposition of two special conditions of supervision restricting Olsen’s acce ss to places where children might be present as overbroad and vague. Due process requires that conditions of supervised rele ase be “sufficiently clear to inform [the defendant] of wh at conduct will result in hi s being returned to prison.” United States
v. Simmons , 343 F.3d 72, 81 (2d Cir. 2003). A condition of supervised release is unconstitutional if it is so vague that people “of common intelligence must nece ssarily guess at its meaning and differ as to it s application.” Id. But conditions of supervised rel ease “need not be cast in letters six feet high, or describe every possible permutation, or spell out every last, self-evident detail.” United States v. Johnson , 446 F.3d 272, 280 (2d Cir. 2006). They may provide the defendant sufficient notice of what conduct is prohibited “even if they ar e not precise to the point of pedantry.” Id

. We affirm the district c ourt’s imposition of special condition three. The district court explained at sentencing that the condition is not intended to prevent Olsen from visiting establishments where contact with minors may be incidental. Rather, it is intended “to prevent5 [Olsen] from frequenting establishments where the focus of and the primary presence or intention of the establishment is children.” App’x 102. The condition includes a non-exhaustive list of places that Olsen is prohibited from visi ting, including parks, schools, playgrounds, and childcare facilities, and provides th at he may nonetheless be able to visit such places with the permission of his probation officer. See United States v. MacMillen , 544 F.3d 71, 75 (2d Cir. 2008). Accordingly, we reject Olsen’s challenge. We likewise affirm the district court’s impos ition of special condition four. The special condition is not overbroad because it prohibits hi m from visiting places only “for the primary purpose of observing or contacting children.” Nor is it unconstitutionally vague. See United States v. Ray , 746 Fed. App’x 593, 593-94 (7th Cir. 2019). Based on the circumstances of this case, a person of “common intelligence” can underst and if they were going to a place “for the primary purpose” of observing children. We have considered Olsen’s remaining argum ents on appeal and ha ve found in them no basis for reversal. For the fo regoing reasons, the judgment of the district court is AFFIRMED

. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk