UNITED STATES v. FUNK (2020)

SUMMARY ORDER

Defendant-Appellant Scott Funk appeals from the January 9, 2019 judgment in the United States District Court for the Eastern District of New York (Azrack, J.) sentencing him principally to 12 years’ imprisonment and 5 years’ supervised release. Funk was sentenced after pleading guilty to one count of coercion and enticement of a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b). We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.

Funk challenges two of the special conditions imposed by the district court on the grounds that they are overbroad and not reasonably related to the pertinent goals of sentencing. The first challenged condition prohibits him from associating with minors unless he is accompanied by a responsible adult and the association is preapproved by a probation officer. The second condition prohibits him from electronically viewing adult pornography as defined by 18 U.S.C. § 2256.

“A district court is 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 ․ [unless] the district court’s reasoning is self-evident in the record.” United States v. Betts, 886 F.3d 198, 202 (2d Cir. 2018) (internal quotation marks omitted).

Funk argues that our decision in United States v. Jenkins, 854 F.3d 181 (2d Cir. 2017) supports his argument that the prohibitions are not reasonably related to the purposes of sentencing and involve a greater deprivation of liberty than is reasonably necessary. He also cites to subsequent decisions from our Circuit involving child pornography convictions and special conditions in which we ultimately remanded because the district court failed to articulate its reasons for imposing special conditions. See, e.g., United States v. Bleau, 930 F.3d 35, 43 (2d Cir. 2019); United States v. Lombardi, 727 F. App'x 18, 21 (2d Cir. 2018).

Although the district court invited briefing from the parties on the objections made by defense counsel to the special conditions, it then disposed of those objections in a summary text order without further explication. The district court thus never made any specific factual findings regarding the two challenged special conditions.

As the government conceded at oral argument, however, the rationale for the associational prohibition’s twin requirements for Funk to have both a responsible adult present and a probation officer’s preapproval—is not immediately apparent from the record. Nor is it immediately apparent on the record why, given Funk’s enticement of a minor, he should be prohibited from electronically viewing legal adult pornography. See United States v. Eaglin, 913 F.3d 88, 100-01 (2d Cir. 2019).

We therefore conclude that “the district court did not adequately explain why” the conditions imposed here were “reasonably necessary to promote the relevant 18 U.S.C. § 3553(a) factors.” Bleau, 930 F.3d at 43.

Accordingly, we VACATE and REMAND the two special conditions at issue with instructions that the district court provide a specific statement of reasons as to the challenged special conditions.