United States v. Traficante
| Decision Date | 17 July 2020 |
| Docket Number | August Term 2019,No. 18-1962,18-1962 |
| Citation | 966 F.3d 99 |
| Parties | UNITED STATES of America, Appellee, v. Thomas TRAFICANTE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Michelle Anderson Barth, Law Office of Michelle Anderson Barth, Burlington, Vermont, for Defendant-Appellant Thomas Traficante.
Katherine A. Gregory, Assistant United States Attorney (Monica J. Richards, Assistant United States Attorney, on the brief), for James P. Kennedy, Jr., United States Attorney for the Western District of New York, Buffalo, New York, for Appellee United States of America.
Before: Parker, Sullivan, Circuit Judges, and Failla, District Judge.*
Defendant-Appellant Thomas Traficante appeals from a judgment of conviction entered on June 28, 2018 in the United States District Court for the Western District of New York (Larimer, J. ) following his guilty plea to one count of cyberstalking in violation of 18 U.S.C. §§ 2261A(2)(B) and 2261(b)(5) and one count of distribution of a controlled substance in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C). The district court imposed a sentence of 48 months’ imprisonment to be followed by a three-year term of supervised release.
On appeal, Traficante challenges, among other things, the district court’s imposition of an above-Guidelines term of incarceration and of a once-standard "notification of risk" condition of supervised release, which the Western District of New York has since modified by standing order. We affirm the district court’s imposition of the above-Guidelines sentence as a permissible variance that was both procedurally and substantively reasonable. And while we agree with Traficante that the previous risk condition can no longer be imposed on him following our decision in United States v. Boles , 914 F.3d 95, 111–12 (2d Cir. 2019), his challenge to that condition is moot in light of the standing order. We also find that remand for resentencing is unnecessary because the Western District of New York’s standing order permissibly clarifies the risk condition applicable to his supervised release without imposing any additional burden on Traficante. Further, any vagueness challenge or challenge to the contemplated delegation of authority to the probation officer in the clarified condition is not ripe. We therefore affirm the district court’s judgment, as modified by the standing order.
In the fall of 2017, Traficante repeatedly stalked and threatened his ex-girlfriend, a student at SUNY Geneseo. In addition to digitally surveilling her from his home, Traficante sent numerous threatening, anonymous text messages and made repeated anonymous calls to the victim and her sorority housemates. He also falsely advertised on the Internet that the victim was a prostitute by posing as her and providing her contact information, hacked several of the victim’s online accounts and used that access to further harass her, and shot out the windows of her parents’ car and home with a BB gun. Traficante also mailed controlled substances, including cocaine and MDMA, to the victim without her knowledge, after which he anonymously contacted university police to inform them of her possession of illegal narcotics.
On December 20, 2017, Traficante was arrested at his home, where law enforcement found a loaded AR-15 firearm, two airsoft rifles, ammunition, and shooting targets. In the course of the investigation, as detailed in the U.S. Probation Office’s Presentence Investigation Report ("PSR"), law enforcement also learned that Traficante had engaged in similar threatening conduct toward another ex-girlfriend after their relationship ended.
In March 2018, Traficante waived indictment and pleaded guilty to a two-count Information charging him with cyberstalking in violation of 18 U.S.C. §§ 2261A(2)(B) and 2261(b)(5), and distribution of a controlled substance in violation of 21 U.S.C. § 841(a)(1). The parties stipulated in the plea agreement that the advisory United States Sentencing Guidelines ("Guidelines") range was 30 to 37 months’ imprisonment, based on an offense level of 19 and a criminal history category of I. Each party reserved the right to argue for a sentence outside the Guidelines range and the right to relay to the court any information deemed relevant to a proper sentencing determination. At sentencing, the district court imposed an above-Guidelines sentence of 48 months’ imprisonment, followed by a three-year term of supervised release. The district court described its sentence as both "a variance and also departure," App’x at 66, stating that Traficante’s extraordinary conduct warranted a variance as well as an increase in his criminal history category from I to III.
In addition, the district court placed a number of conditions on Traficante’s supervised release, including the once-standard risk condition that gave Traficante’s probation officer discretion both to determine whether Traficante posed a risk to others and, if so, to require him to notify such persons about that risk. Id. at 76 ().
On appeal, Traficante primarily argues that the district court erred when it increased his criminal history category from I to III based on related conduct and without adequate explanation. He also cites our decision in Boles , 914 F.3d at 111–12, to challenge the standard risk condition of his supervised release.
"We review a sentence for procedural and substantive reasonableness under a ‘deferential abuse-of-discretion standard.’ " United States v. Thavaraja , 740 F.3d 253, 258 (2d Cir. 2014) (quoting Gall v. United States , 552 U.S. 38, 41, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) ). "A district court commits procedural error when it fails to calculate (or improperly calculates) the Sentencing Guidelines range, treats the Sentencing Guidelines as mandatory, fails to consider the [ 18 U.S.C.] § 3553(a) factors, selects a sentence based on clearly erroneous facts, or fails adequately to explain the chosen sentence." United States v. Genao , 869 F.3d 136, 140 (2d Cir. 2017) (internal quotation marks omitted). A sentence is substantively unreasonable "only in exceptional cases where the trial court’s decision cannot be located within the range of permissible decisions." United States v. Cavera , 550 F.3d 180, 189 (2d Cir. 2008) (internal quotation marks omitted).
Both during the sentencing and in the written statement of reasons that followed, the district court characterized the sentence it imposed as both a variance and a departure under the Guidelines. The district court first set forth the justification for a variance, explaining the factors to be considered under 18 U.S.C. § 3553(a) and concluding that this was an "atypical case" in which "the conduct significantly differs from the norm [such] that the Court can consider a variance." App’x at 63. In particular, the district court relied on facts set forth in the PSR, to which Traficante did not object. As the district court explained, the PSR explicitly described past criminal conduct in which Traficante stalked a high school girlfriend and exhibited behavior substantially similar to the instant offense, including posting her phone number to a prostitution website, sending her controlled substances without her knowledge and then notifying law enforcement, and hacking her social media accounts. The PSR also identified aggravating aspects of the instant offense, including that Traficante continued to contact the victim after police directed him to stop, and that a search of Traficante’s home revealed, among other things, a loaded AR-15 firearm and ammunition. The district court then determined that the past criminal conduct and the instant offense were "extraordinary and exceptional" such that a variance above the Guidelines range of 30 to 37 months was appropriate. Id. at 64.
On the record before us, we find no procedural error with respect to the variance. The district court adequately explained the reasons for that variance pursuant to the factors outlined in § 3553(a). Among other things, the court emphasized the "horrendous" nature of the offense, and in considering that the "[s]entence must reflect the seriousness of the offense," explained that the offense was "about as serious as they get" and required "just punishment." Id. at 61–62. Further, the court detailed its view that the sentence should deter Traficante as well as others from engaging in similar behavior, noting that Traficante’s conduct continued "not for a day or two" but instead was "repeated, repeated conduct" that he chose not to stop. Id. at 62. And since the district court made it clear on the record and in the written statement of reasons that the above-Guidelines sentence was justified as both a variance and departure, we need not address whether a departure was warranted pursuant to sections 4A1.3 and 5K2.0 of the Guidelines. See, e.g., United States v. Mandell , 752 F.3d 544, 553 (2d Cir. 2014) ; see also United States v. Pristell , 941 F.3d 44, 56 (2d Cir. 2019) ().
Having determined that the sentence was procedurally reasonable, we likewise reject Traficante’s conclusory and tepid assertion that...
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