U.S. v. Macmillen

• Decision Date: 23 September 2008
• Docket Number: Docket No. 07-3377-cr.
• Citation: 544 F.3d 71
• Parties: UNITED STATES of America, Appellee, v. Christopher J. MacMILLEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

544 F.3d 71

UNITED STATES of America, Appellee, v. Christopher J. MacMILLEN, Defendant-Appellant.

Docket No. 07-3377-cr.

United States Court of Appeals, Second Circuit.

Argued: June 19, 2008.

Decided: September 23, 2008.

Anne M. Burger, Federal Public Defender (Jay Ovsiovitch, of counsel), Rochester, NY, for Defendant-Appellant.

Stephen Baczynski, Assistant United States Attorney (Monica J. Richards, on the brief), for Terrance P. Flynn, United States Attorney for the Western District of New York, Buffalo, NY, for Appellee.

Before: HALL, LIVINGSTON, Circuit Judges, and McMAHON, District Judge.¹

LIVINGSTON, Circuit Judge:

Defendant-appellant Christopher J. MacMillen appeals from a judgment of the United States District Court for the Western District of New York (Siragusa, J.) sentencing him to 78 months' imprisonment and a lifetime term of supervised release following his plea of guilty to one count of possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). Specifically, MacMillen challenges two special conditions of supervised release imposed by the district court: (1) that he not frequent areas where children are likely to congregate; and (2) that the Probation Office be permitted to address third-party risks with the defendant's employers. For the reasons that follow, we affirm the judgment of the district court.

BACKGROUND

On April 20, 2007, MacMillen pleaded guilty to a one-count information charging him with possession of child pornography. Pursuant to a plea agreement with the government, MacMillen admitted that he had more than 600 images of child pornography on his computer, images he received via Internet transmissions. Some of the pictures, MacMillen admitted, depicted prepubescent minors, while others included sadistic or masochistic images or portrayed acts of violence.

The parties agreed that the applicable sentencing range under the United States Sentencing Guidelines was 78 to 97 months' imprisonment, and that MacMillan could face a lifetime term of supervised release. The Presentence Investigation Report ("PSR") issued by the United States Probation Office arrived at the same Guidelines calculation and recommended sentencing range. The PSR also recommended numerous special conditions of supervised release. These included that MacMillen provide a DNA sample to be kept in the national DNA registry; that he alert the Probation Office in advance if he were to use computers or similar devices during his release and that he consent to the monitoring of such devices; that he register as a sex offender and enroll in mental health treatment for sex offenders; that he not have unsupervised contact with persons under 18 years of age; and that he be "prohibited from being on any school grounds, child care center, playground, park, recreational facility, or any area in which children are likely to congregate," with any "[e]xceptions . . . to be pre-approved by the U.S. Probation Office."

MacMillen filed a sentencing statement on July 2, 2007, requesting a sentence at the low end of the Guidelines range and a supervised release period of only five years. He objected to the PSR's proposed condition that he be "prohibited from being on any school grounds, child care center, playground, park, recreational facility, or any area in which children are likely to congregate." Relying principally on our decision in United States v. Peterson, 248 F.3d 79 (2d Cir.2001) (per curiam), he complained that the condition, as written, was overbroad because it would prohibit him from being in any park, or even from going to the gym without first obtaining the approval of the Probation Office. He also complained that the proposed condition was unconstitutionally vague because the phrase "where children are likely to congregate" failed to provide clear guidance as to where he might go, and because the PSR's suggested language effectively required Probation's approval before he could go anywhere.

At a July 31, 2007 sentencing hearing, the district court sentenced MacMillen to 78 months' imprisonment, to be followed by a lifetime term of supervised release. In considering MacMillen's arguments regarding the conditions of supervision, the court concluded that "a condition which states specifically that a Defendant is restricted from visiting places where children are likely to congregate such as parks, et cetera does, in fact, meet the requirements of the Peterson case." In "doing its best to comply with the language and requirements of the Peterson case," the district court imposed, inter alia, the following special condition of supervised release: "[T]he Defendant shall avoid and is prohibited from being on [sic] any areas or locations where children are likely to congregate[,] such as schools, daycare facilities, playgrounds, theme parks, arcades, recreational facilities, and recreation parks, unless prior approval has been obtained from the probation office." The court emphasized that the list of enumerated places was "suggestive . . . not exclusive."

In a separate special condition of supervised release, the court "authorize[d] the probation office to address third-party risk issues [with] the Defendant's employers." The court thought the reason for this special condition was "obvious," but nonetheless explained that "[c]learly in this day and age employers may have access to computers and I want to make sure that they understand the potential risks." This special condition was imposed in addition to the standard condition of supervision ("Standard Condition 13") specifying that "as directed by the probation officer, the defendant shall notify third parties of risks that may be occasioned by the defendant's criminal record or personal history or characteristics, and shall permit the probation officer to make such notifications and to confirm the defendant's compliance with such notification requirement[s]." See U.S.S.G. § 5D1.3(c)(13) (recommending this language as a "standard" condition of supervised release).²

MacMillen now appeals from his sentence to the extent that it includes the special conditions of supervised release (1) requiring him to avoid places where children are likely to congregate, and (2) authorizing the Probation Office to discuss third-party risk issues with MacMillen's employers.

DISCUSSION

A district court retains wide latitude in imposing conditions of supervised release, and we therefore review a decision to impose a condition for abuse of discretion. See United States v. Dupes, 513 F.3d 338, 342-43 (2d Cir.2008). When a challenge to a condition of supervised release presents an issue of law, we review the imposition of that condition de novo, bearing in mind that any error of law necessarily constitutes an abuse of discretion. See United States v. Johnson, 446 F.3d 272, 277 (2d Cir.2006).

I. "Areas or Locations Where Children Are Likely to Congregate"

MacMillen first complains that the special condition prohibiting him from frequenting locations where "children are likely to congregate" is both overly broad and unconstitutionally vague. The condition is overbroad, he claims, because it involves a greater deprivation of liberty than is necessary and precludes him from frequenting places where children are not likely to congregate. He claims that the condition is impermissibly vague because it does not provide him with sufficient notice of what is and is not permitted.

In Peterson, the sentencing court imposed the following special condition of release upon a defendant who had a prior state incest conviction: "[The] defendant is prohibited from being on any school grounds, child care center, playground, park, recreational facility or any area in which children are likely to congregate." 248 F.3d at 82. We held that, while a district court would not abuse its discretion in imposing a condition of release that "restricts [a] defendant's ability to visit places where children are likely to congregate," the condition as written in that case was "ambiguous and, depending on its meaning, excessively broad." Id. at 86. This was because it was unclear "whether the clause `in which children are likely to congregate' applie[d] only to `any area,' or to the other places listed." Id. That is, we found that it was "unclear whether the prohibition applie[d] only to parks and recreational facilities in which children congregate, or whether it would bar the defendant from visiting Yellowstone National Park or joining an adult gym." Id. While a district court is justified in prohibiting sex offenders from being in areas where children are likely to congregate, we concluded, "there would be no justification to forbid the defendant from being at parks and educational or recreational facilities where children do not congregate." Id. Accordingly, we remanded for clarification of this condition. Id.; accord United States v. Kieffer, 257 Fed.Appx. 378 (2d Cir.2007); United States v. Raftopoulos, 254 Fed.Appx. 829 (2d Cir.2007).

MacMillen contends that the special condition imposed here is overbroad for the same reasons as the challenged condition in Peterson. We disagree. Notably, the district court did not impose the condition recommended in the PSR, which mirrored the problematic condition at issue in Peterson. Rather, the district court carefully reworked the PSR's proposed condition so that it applies only to places "where children are likely to congregate." The list following this operative phrase, which includes schools, playgrounds, and the like, is merely illustrative of the types of places where children are likely to be. Nothing in the court's enumeration of these types of places indicates that MacMillen is forbidden from entering areas where children are unlikely to be.

Indeed, in Dupes, we rejected a challenge to a special condition of supervised release that used language similar to the one MacMillen challenges here. The district court in that case ordered the defendant ...