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United States v. Ahearn

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT

. C ITATION TO A SUMMARY

ORDER FILED ON OR AFTER J ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE

OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ʹ S L OCAL R ULE 32.1.1. W HEN CITING A

SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT

, A PARTY MUST CITE EITHER THE

F EDERAL A PPENDIX OR AN ELECTRONIC DATABASE ( WITH THE NOTATION ʺ SUMMARY ORDER ʺ ).

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 17 th day of April, two thousand nineteen.

PRESENT: JOHN M. WALKER, JR.,

GUIDO CALABRESI,

DENNY CHIN,

Circuit Judges.

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UNITED STATES OF AMERICA,

Appellee,

v. 17

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DAVID AHEARN,

Defendant

‐ Appellant

.

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FOR APPELLEE: RAJIT S. DOSANJH, Assistant United

States Attorney (Lisa M. Fletcher,

Assistant United States Attorney, on the

brief ), for Grant C. Jaquith, United States2 Attorney for the Northern District of

New York, Syracuse, New York.

FOR DEFENDANT

‐ APPELLANT: JAMESA J. DRAKE, Drake Law, LLC,

Auburn, Maine.

Appeal from the United States District Court for the Northern District of

New York (McAvoy, J. ).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED IN

PART and VACATED IN PART, and the case is REMANDED for further proceedings

consistent with this order.

Defendant

‐ appellant David Ahearn appeals from his judgment of

conviction for attempted coercion and enticement of a minor in violation of 18 U.S.C.

§ 2422(b), for which he was principally sentenced to 120 months ʹ imprisonment and 15

years ʹ supervised release. In his pro se brief, Ahearn argues that his offense conduct

was beyond the intended scope of § 2242(b), and that the statute is unconstitutionally

overbroad and an invalid exercise of Congress ʹ s Commerce Clause powers. In his

counseled brief, Ahearn argues that the district court erred in imposing as a special

condition of supervised release that Ahearn participate in a substance abuse treatment

program. We assume the parties ʹ familiarity with the underlying facts, the procedural

history of the case, and the issues on appeal.3 Ahearn pleaded guilty on September 14, 2015, and a judgment of

conviction was entered on July 20, 2016. He filed his notice of appeal pro se on April

17, 2017. Although Ahearn ʹ s notice of appeal is untimely, the government waives any

objection to untimeliness. Under the circumstances, we exercise our discretion to hear

the appeal as though it were timely filed. See United States v. Frias

, 521 F.3d 229, 232

(2d Cir. 2008) (holding that Federal Rule of Appellate Procedure 4(b) is not

jurisdictional).

Ahearn ʹ s pro se arguments have been waived by his plea of guilty.

ʺ [A]ppeals that call into question the government ʹ s authority to bring a prosecution or

congressional authority to pass the statute in question are generally not ʹ jurisdictional, ʹʺ

United States v. Yousef

, 750 F.3d 254, 260 (2d Cir. 2014), and ʺ [a] knowing and voluntary

guilty plea waives all nonjurisdictional defects in the prior proceedings, ʺ United States v.

Coffin

, 76 F.3d 494, 496 (2d Cir. 1996). Thus, Ahearn ʹ s unconditional guilty plea

waived any claim that Congress exceeded its constitutional authority in enacting §

2242(b), or that the government ʹ s prosecution of him under § 2242(b) was

unconstitutional. See United States v. Lasaga

, 328 F.3d 61, 63 (2d Cir. 2003).

Ahearn also challenges the imposition of Special Condition 10, which

requires him to ʺ participate in a program for substance abuse which shall include

testing for use of controlled substances, controlled substance analogues, and alcohol ʺ

for the 15

‐ year duration of his supervised release. App ʹ x at 56. Where, as here, a4 defendant does not object to the conditions of his supervised release, this Court reviews

those conditions for plain error. See United States v. Matta

, 777 F.3d 116, 121 (2d Cir.

2015). A sentencing court may impose special conditions that are reasonably related

to, inter alia

, ʺ the history and characteristics of the defendant ʺ and ʺ the need to provide

the defendant with needed educational or vocational training, medical care, or other

correctional treatment in the most effective manner. ʺ U.S.S.G. § 5D1.3(b); see also

United States v. Myers

, 426 F.3d 117, 123

‐ 25 (2d Cir. 2005). District courts are ʺ required

to make an individualized assessment when determining whether to impose a special

condition of supervised release, and to state on the record the reason for imposing it, ʺ

and we may uphold a condition in the absence of such an explanation ʺ only if the

district court ʹ s reasoning is self

‐ evident in the record. ʺ United States v. Betts

, 886 F.3d

198, 202 (2d Cir. 2018) (internal quotation marks omitted).

Betts

, with its clarification that a district court must make an

individualized assessment and state on the record the reason for imposing a special

condition, had not yet been filed when the district court imposed sentence in this case.

The district court did not separately discuss Special Condition 10. Instead, it

concluded generally that the special conditions were ʺ necessary and justified

. . . based

upon the nature of the offense, as well as [defendant ʹ s] characteristics as outlined in the

presentence report. ʺ App ʹ x at 44. There is no indication in the record that Ahearn ʹ s

offense had anything to do with alcohol or controlled substances. The PSR does reflect5 that Ahearn used cocaine two to three times in the 1980s, that he drank one beer

approximately one day per week, and that he used marijuana on and off for

approximately 36 years. Although the U.S. Sentencing Guidelines recommend a

special condition of substance abuse treatment ʺ [i]f the court has reason to believe that

the defendant is an abuser of

. . . controlled substances or alcohol, ʺ U.S.S.G.

§ 5D1.3(d)(4), the district court did not indicate that it held such a belief. The district

court did not undertake an individualized assessment, and the record does not self

‐

evidently reflect that Ahearn is an abuser of alcohol or controlled substances such that

Ahearn ʹ s participation in a program for substance abuse for 15 years ʺ involve[s] no

greater deprivation of liberty than is reasonably necessary. ʺ U.S.S.G. § 5D1.3(b)(2).

We therefore vacate the imposition of Special Condition 10 and remand to the district

court to make an individualized assessment and to clarify its reasoning in accordance

with Betts

.

We have considered all of Ahearn ʹ s remaining arguments and find them

to be without merit. For the foregoing reasons, the judgment of the district court is

AFFIRMED IN PART and VACATED IN PART

, and the case is REMANDED for

further proceedings consistent with this order.

FOR THE COURT:

Catherine O ʹ Hagan Wolfe, Clerk of Court