19-165-cr
United States v. Scott Andrew Funk

                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                            SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). 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
3rd day of February, two thousand twenty.

Present:    GUIDO CALABRESI,
            ROSEMARY POOLER,
            SUSAN L. CARNEY,
                        Circuit Judges.
_____________________________________________________

UNITED STATES OF AMERICA,

                                     Appellee,

                         v.                                                      19-165-cr

SCOTT ANDREW FUNK,

                        Defendant-Appellant.
_____________________________________________________

Appearing for Appellant:             Philip L. Weinstein, Federal Defenders of New York, Inc., Appeals
                                     Bureau, New York, N.Y.


Appearing for Appellee:              J. Matthew Haggans, Assistant United States Attorney (Susan
                                     Corkery, Assistant United States Attorney, on the brief), for
                                     Richard P. Donoghue, United States Attorney for the Eastern
                                     District of New York, Brooklyn, N.Y.
       Appeal from the United States District Court for the Eastern District of New York
(Azrack, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the matter be and it hereby is VACATED and REMANDED.

         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).




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        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.



                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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