UNITED STATES v. VILLAFANE LOZADA (2020)

SUMMARY ORDER

Defendant Daniel Villafane-Lozada appeals from a June 28, 2019 judgment principally sentencing him to 120 months’ imprisonment and 10 years of supervised release for possessing child pornography involving a prepubescent minor in violation of 18 U.S.C. § 2252A. On appeal, Villafane-Lozada challenges three conditions of his supervised release: a “risk notification” condition,¹ a “verification testing” condition, and a “computer monitoring” condition.² In this summary order, we consider only Villafane-Lozada's challenges to the risk notification and computer monitoring conditions; we address his challenge to the verification testing condition in a simultaneously issued opinion. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

We do not reach the merits of Villafane-Lozada's challenges to the risk notification or computer monitoring conditions because neither is ripe for review. “The ripeness doctrine prevents a federal court from entangling itself in abstract disagreements over matters that are premature for review because the injury is merely speculative and may never occur.” United States v. Balon, 384 F.3d 38, 46 (2d Cir. 2004) (internal quotation marks and brackets omitted). “In addressing any and all ripeness challenges, we must determine whether (1) the issues are fit for judicial consideration, and (2) withholding of consideration will cause substantial hardship to the parties.” United States v. Traficante, 966 F.3d 99, 106 (2d Cir. 2020) (internal quotation marks omitted).

We begin with Villafane-Lozada's challenge to the risk notification condition. Our recent decision in Traficante squarely resolves this issue. There, we considered a vagueness challenge to the Western District of New York's standing order regarding risk notification conditions. See id. at 103–04. We held that, even though the “vagueness challenge clearly raises a question of law, the inquiry, at this point, is surely just an abstraction” because it remained unknown whether the district court would require the defendant to notify anyone about any risks. Id. at 106. In doing so, we noted that such a challenge would be properly raised at the hearing accompanying the imposition of an actual, as opposed to a conditional, notification requirement. See id. Because it was likely that at the time of such a hearing “the condition will no longer be vague at all,” we held that the vagueness claim was not ripe for review. Id. We likewise concluded that any improper delegation challenge stemming from the condition was also unripe because “the supposed delegation is conditioned on the district court finding ․ that [the defendant] poses a risk of committing further crimes against another person” and because, “even if it does, the district court still might directly order [the defendant] to notify the at-risk individual.” Id. at 106–07. Villafane-Lozada challenges the same condition that was at issue in Traficante and raises largely the same arguments we rejected there. Accordingly, our holding in that case governs, and Villafane-Lozada's claim must be dismissed.

Similarly, Villafane-Lozada's challenge to the computer monitoring condition is also not ripe for review. Villafane-Lozada argues that it was unconstitutional for the district court to require him to pay for the cost of the computer monitoring program because he is currently indigent. But whether Villafane-Lozada lacks the financial means to pay for the monitoring program today says very little about whether he will be able to pay for the program once he is released from custody in six years. Indeed, the cost of such a program may change over time or Villafane-Lozada's financial condition may improve (he is, after all, required to find full-time employment when released). See United States v. Leone, 813 F. App'x 665, 670 (2d Cir. 2020) (“At present, we do not know what the cost of participating in the monitoring program will be when [the defendant] is released, whether Probation will hold [the defendant] responsible for paying those costs, whether [the defendant] will have the financial means to pay, and whether the district court will require him to pay if he says that he cannot.”); United States v. Vietor, 806 F. App'x 60, 63–64 (2d Cir. 2020) (“[A]t this juncture, it is unclear what the costs of the monitoring program will be and whether [the defendant] will be able to afford those costs upon her release from prison.”). Moreover, because Villafane-Lozada will be able to challenge the special condition at a later date through a proceeding under 18 U.S.C. § 3583(e)(2), he suffers no substantial hardship from our withholding consideration in the present. See Balon, 384 F.3d at 47 (holding that “Section 3583(e) allows modification of conditions of supervised release ‘to account for new or unforeseen circumstances’ ”) (quoting United States v. Lussier, 104 F.3d 32, 36 (2d Cir. 1997)). Indeed, we found near identical challenges to the same computer monitoring condition to be unripe in United States v. Leone, 813 F. App'x at 670, and in United States v. Vietor, 806 F. App'x at 63–64.

* * *

We have considered Villafane-Lozada's remaining arguments concerning these two conditions and find them to be without merit. Accordingly, we DISMISS IN PART this appeal as not ripe. The risk notification and computer monitoring conditions may each be reconsidered by the district court at the request of Villafane-Lozada or the government under 18 U.S.C. § 3583(e) at a time closer to Villafane-Lozada's supervised release date. We resolve Villafane-Lozada's challenges to the verification testing condition in a simultaneously issued opinion.

FOOTNOTES

1.   The risk notification condition provides: “If the court determines in consultation with your probation officer that, based on your criminal record, personal history and characteristics, and the nature and circumstances of your offense, you pose a risk of committing further crimes against another person (including an organization), the probation officer may require you to notify the person about the risk and you must comply with that instruction. The probation officer may contact the person and confirm that you have notified the person about the risk.” J. App'x 96.

2.   The computer monitoring condition provides, in pertinent part: “The probation officer is authorized to install any application that is necessary to surveil all activity on computer or computers or connected device or devices owned by or operated by the defendant. [The defendant] shall be required to pay the cost of monitoring services.” J. App'x 84.