     19-1439
     United States v. Pellistri

                                       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.

 1          At a stated term of the United States Court of Appeals for the Second Circuit, held
 2   at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
 3   York, on the 28th day of April, two thousand twenty.
 4
 5   PRESENT:             GUIDO CALABRESI,
 6                        RICHARD C. WESLEY,
 7                        JOSEPH F. BIANCO,
 8                                      Circuit Judges.
 9
10
11   UNITED STATES OF AMERICA,
12
13                                Appellee,                                     19-1439-cr
14
15                                v.
16
17   GARY PELLISTRI, JR.,
18
19                                Defendant-Appellant.
20
21
22   For Appellee:                                            Andrew D. Beaty, Assistant United
23                                                            States Attorney, for Grant C. Jaquith,
24                                                            United States Attorney for the Northern
25                                                            District of New York, Syracuse, NY.
26
27   For Defendant-Appellant:                                 Molly K. Corbett and James P. Egan,
28                                                            Assistant Federal Public Defenders, for
29                                                            Lisa A. Peebles, Federal Public
30                                                            Defender, Northern District of New
31                                                            York, Albany, NY.
32

                                                          1
1
2           Appeal from a judgment of the United States District Court for the Northern District of

3    New York (Sharpe, J.).

4           UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

 5   DECREED that the judgment of the district court is AFFIRMED in part and VACATED in

 6   part and REMANDED for further proceedings.

 7          Defendant-Appellant Gary Pellistri, Jr., appeals from a judgment of conviction entered on

 8   May 9, 2019 following Pellistri’s guilty plea for attempted coercion and enticement of a minor,

 9   in violation of 18 U.S.C. § 2422(b). Pellistri challenges the length of his supervised release and

10   four of the special conditions of supervised release imposed on him—namely, special conditions

11   three and four, which place limits on Pellistri’s ability to be in locations where minors are likely

12   to be present or for the purpose of viewing minors; special condition 11, which requires Pellistri

13   to participate in a substance abuse program; and special condition 13, which prohibits alcohol

14   use. We assume the parties’ familiarity with the underlying facts, the procedural history of the

15   case, and the issues on appeal.

16                                             DISCUSSION

17          I.      Lifetime Supervised Release

18          Pellistri argues that the district court’s imposition of a life term of supervised release was

19   unreasonable. Although Pellistri did not explicitly state whether he is challenging the procedural

20   and/or substantive reasonableness of the sentence, we address both given the nature of his

21   arguments.

22                  A.      Procedural Reasonableness

23          Where, as here, a defendant fails to raise a procedural objection at sentencing, we review

24   those claims for plain error. United States v. Verkhoglyad, 516 F.3d 122, 128 (2d Cir. 2008).

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 1   Under the plain error standard, Pellistri bears the burden of showing: (1) there was an error; (2)

 2   the error is “clear or obvious, rather than subject to reasonable dispute;” (3) “the error affected

 3   [his] substantial rights, which in the ordinary case means it affected the outcome of the district

 4   court proceedings;” and (4) the error “seriously affects the fairness, integrity or public reputation

 5   of judicial proceedings.” United States v. Marcus, 560 U.S. 258, 262 (2010) (quotation marks

 6   omitted and alteration in original).

 7          We conclude that the district court’s sentence of a life term of supervised release was

 8   procedurally reasonable. Pellistri argues that the district court committed procedural error

 9   because it failed to adequately explain its reasons for imposing a life term of supervised release

10   and inappropriately stated that it was “compensat[ing] for any potential error” in the district

11   court’s judgment to impose a below-Guidelines incarceratory sentence. Pellistri Br. at 12.

12          We disagree. District courts are required to consider certain factors set forth in 18 U.S.C.

13   § 3553(a) when determining the length of a term of supervised release. See 18 U.S.C. § 3583(c).

14   “Absent record evidence suggesting the contrary, we presume that a sentencing judge has

15   faithfully discharged her duty to consider the statutory factors, and have steadfastly refused to

16   require judges to explain or enumerate how such consideration was conducted.” United States v.

17   Olsen, No. 19-1104-cr, 2020 WL 1514742, at *1 (2d Cir. Mar. 30, 2020) (summary order)

18   (quoting United States v. Kimber, 777 F.3d 553, 565 (2d Cir. 2015)). Applying that presumption

19   here, we find that the district court considered the applicable Section 3553(a) factors and stated

20   “the reasons for its imposition of the particular sentence.” 18 U.S.C. § 3553(c). At sentencing,

21   the district court noted that Pellistri had a history of conduct directed at young, prepubescent

22   girls and that it was “extraordinarily concerned” about other allegations of conduct with minors

23   reflected in the presentence report (“PSR”) that “fit the very profile of what [Pellistri] did in this



                                                        3
 1   case.” App’x at 86-88. Based on its assessment, the district court concluded that a life term of

 2   supervised release was “absolutely warranted” because he posed “a real threat to young

 3   females.” App’x at 87-88. When understood as part of the district court’s broader discussion of

 4   the seriousness of Pellistri’s offense and his pattern of similar behavior, the district court’s

 5   explanation for its imposition of a life term of supervised release was sufficient.

 6          We also reject Pellistri’s argument that the district court’s statement that it was

 7   “compensat[ing] for any potential error,” App’x at 88, violated Section 3553(a)’s parsimony

 8   clause because that statement does not suggest that the district court understood the term of

 9   supervised release to be greater than necessary. Instead, while imposing a 15-year term of

10   imprisonment that was substantially below the Sentencing Guidelines range of 360 months’ to

11   life imprisonment, the district court determined that, when the defendant was no longer

12   incarcerated, a life term of supervision (with the accompanying special conditions) was

13   necessary to adequately protect the public. Therefore, we hold that the district court committed

14   no procedural error by imposing a life term of supervised release.

15                  B.      Substantive Reasonableness

16          We review sentences for substantive reasonableness under a “deferential abuse-of-

17   discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007); see also United States v.

18   Broxmeyer, 699 F.3d 265, 278 (2d Cir. 2012) (“[O]ur standard is reasonableness, a particularly

19   deferential form of abuse-of-discretion review . . . .” (quotation marks omitted)). A sentence is

20   substantively unreasonable “only if it cannot be located within the range of permissible

21   decisions.” United States v. Bonilla, 618 F.3d 102, 108 (2d Cir. 2010) (quotation marks

22   omitted). As we have observed before, “in the overwhelming majority of cases, a Guidelines

23   sentence will fall comfortably within the broad range of sentences that would be reasonable in



                                                        4
 1   the particular circumstances.” United States v. Fernandez, 443 F.3d 19, 27 (2d Cir. 2006),

 2   abrogated on other grounds by Rita v. United States, 551 U.S. 338, 364 (2007).

 3          We also reject Pellistri’s challenge to the substantive reasonableness of his term of

 4   supervised release. In this case, the Sentencing Guidelines call for a life term of supervised

 5   release. See U.S.S.G. § 5D1.2(b)(2) & cmt. 1. However, we have emphasized that “[t]he fact

 6   that the Sentencing Guidelines recommend a lifetime term of supervised release does not, of

 7   course, suffice to make [a defendant’s] sentence reasonable.” United States v. Hayes, 445 F.3d

 8   536, 537 (2d Cir. 2006) (citing United States v. Crosby, 397 F.3d 103, 115 (2d Cir. 2005)).

 9   Moreover, “the severity of a life sentence of supervised release justifies a closer look at the

10   district court’s decision to impose such a sentence.” United States v. Brooks, 889 F.3d 95, 101

11   (2d Cir. 2018). Here, there was a more than adequate basis to support the life term of supervised

12   release given the gravity of the instant offense involving an attempt through online

13   communications to entice a 13-year-old girl to engage in sexual activity, as well as a history of

14   similar behavior towards minors. See also, e.g., Hayes, 445 F.3d at 537 (holding that a life term

15   of supervised release was reasonable where defendant transported child pornography).

16   Therefore, the district court’s imposition of a life term of supervised release was not

17   substantively unreasonable.

18          II.     Special Conditions

19          Pellistri argues that we should vacate four of the special conditions imposed upon him,

20   specifically, special conditions three and four, which place limits on Pellistri’s ability to be in

21   locations where minors are likely to be present or for the purpose of viewing minors; special

22   condition 11, which requires Pellistri to participate in a substance abuse program; and special

23   condition 13, which prohibits alcohol use.



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 1          “District courts possess broad discretion in imposing conditions of supervised release.”

 2   United States v. Betts, 886 F.3d 198, 202 (2d Cir. 2018). A district court may impose special

 3   conditions that are reasonably related to “the nature and circumstances of the offense and the

 4   history and characteristics of the defendant,” “the need for the sentence imposed to afford

 5   adequate deterrence to criminal conduct,” “the need to protect the public from further crimes of

 6   the defendant,” and “the need to provide the defendant with needed educational or vocational

 7   training, medical care, or other correctional treatment in the most effective manner,” which

 8   “involve no greater deprivation of liberty than is reasonably necessary” for these purposes.

 9   U.S.S.G. § 5D1.3(b); see also United States v. Myers, 426 F.3d 117, 123-25 (2d Cir. 2005).

10   Nevertheless, a district court’s discretion to impose special conditions is not “untrammelled,”

11   and we will “carefully scrutinize unusual and severe conditions.” Myers, 426 F.3d at 124

12   (quotation marks omitted).

13          When determining whether to impose special conditions, “[a] district court is required to

14   make an individualized assessment . . . , and to state on the record the reason for imposing it; the

15   failure to do so is error.” Betts, 886 F.3d at 202. However, even when the district court does not

16   provide such an explanation, the condition at issue can be upheld “if the district court’s reasoning

17   is self-evident in the record.” Id. (quotation marks omitted). Because Pellistri received notice of

18   these conditions prior to sentencing and failed to object to them, we review the district court’s

19   imposition of these special conditions for plain error. 1 See United States v. Dupes, 513 F.3d 338,

20   343 & n.2 (2d Cir. 2008).




        1
           Pellistri argues that plain error review is inapplicable because the special conditions were
     not included in the PSR. Pellistri Br. at 17 (citing United States v. Simmons, 343 F.3d 72, 80 (2d
     Cir. 2003)). We have previously applied plain error standards less rigorously in cases where the


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 1                  A.      Contact with Minors

 2          Pellistri requests vacatur of special condition three, which states that Pellistri “must not

 3   go to, or remain at, any place where [he] know[s] children under the age of 18 are likely to be,

 4   including parks, schools, playgrounds, and childcare facilities without the permission of the

 5   probation officer,” 2 and special condition four, which states that Pellistri “must not go to, or

 6   remain at, a place for the primary purpose of observing or contacting children under the age of

 7   18.” App’x at 95. Pellistri argues that these conditions are overly broad and unconstitutionally

 8   vague. His argument is not persuasive.

 9          We recently affirmed identical special conditions Olsen. 2020 WL 1514742, at *1-2.

10   The reasoning in that case—where the defendant was convicted of sexual exploitation of a

11   child—applies with equal force here, where the defendant was convicted of attempting to lure a

12   minor across state lines to engage in sexual acts with her. Moreover, as discussed supra, the

13   district court noted that Pellistri has a history of exhibiting inappropriate sexual behavior towards

14   minors. At sentencing, the court noted that the offense at issue in this case and Pellistri’s history

15   of inappropriate behavior towards minors warranted a need to protect the public from the




     PSR failed to give the defendant notice that the condition of supervised release might be
     imposed. See, e.g., Dupes, 513 F.3d at 343. However, Pellistri had prior notice of the special
     conditions that the district court intended to impose via a court exhibit, Gov. App’x at 1, and had
     an opportunity to object to them in advance of sentencing, at the time his sentence was imposed,
     and afterwards, see App’x at 89 (defense counsel reserving right to object to conditions of
     supervised release during the week after sentencing). He did not do so. Therefore, it is
     Pellistri’s burden to demonstrate plain error. See Dupes, 513 F.3d at 343 & n.2 (“In this case, the
     presentence report, which Dupes reviewed with counsel, recommended the conditions to which
     he failed to object and now challenges on appeal. We see no circumstances warranting the
     relaxation of the plain error standard in this case.”).
        2
           We have previously treated the phrase “likely to be” as synonymous with the phrase “likely
     to congregate.” See United States v. MacMillen, 544 F.3d 71, 75 (2d Cir. 2008). We view the
     two phrases as having the same meaning here.
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1    defendant. Therefore, we find these special conditions are narrowly tailored to “involve no

2    greater deprivation of liberty than is reasonably necessary” to achieve that goal. See U.S.S.G.

3    § 5D1.3(b); see also Olsen, 2020 WL 1514742, at *1-2. Moreover, as set forth in Olsen, these

4    conditions provide a defendant with sufficient notice as to what conduct is prohibited and, thus,

5    the unconstitutional vagueness challenge fails. See Olsen, 2020 WL 1514742, at *2 (holding that

6    identical conditions were not unconstitutionally vague).

 7                   B.      Substance Abuse Program

 8           Pellistri next challenges special condition 11, requiring him to participate in a substance

 9   abuse program. The Sentencing Guidelines specifically provide that, if the court has reason to

10   believe that the defendant has a drug or alcohol problem, special conditions requiring that the

11   defendant participate in abuse programs that include testing for those substances to ensure

12   abstinence are appropriate. U.S.S.G. § 5D1.3(d)(4). We have previously vacated special

13   conditions requiring participation in substance abuse programs where the conditions were not

14   “reasonably related to the circumstances of [the defendant’s] offense” and there was no history

15   of substance abuse. See United States v. Mears, 758 F. App’x 92, 96 (2d Cir. 2018). In this

16   case, Pellistri admitted that he began using marijuana approximately weekly in his late twenties

17   and continued until the time of his arrest. Therefore, given that defendant has a history of using

18   illegal drugs, the district court did not plainly err in requiring the defendant to participate in a

19   substance abuse program. See Betts, 886 F.3d at 202. 3




         3
          Although this condition is warranted based upon the record before the district court at
     sentencing, the Court recognizes that the defendant’s rehabilitation in jail, as well as potential
     future changes to federal and state laws with respect to marijuana use, could materially impact
     whether this condition will still be necessary by the time the defendant serves his 15-year term of
     imprisonment and is placed on supervised release. However, the procedural mechanism for


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 1                  C.      Use of Alcohol

 2          Finally, both the defendant and the Government agree that the district court did not

 3   adequately articulate its reasons for imposing special condition 13: that Pellistri refrain from the

 4   use of alcohol. Nor is the district court’s reasoning self-evident in the record—which indicates

 5   only that Pellistri drank alcohol once or twice per month at most. Pellistri’s underlying crime did

 6   not involve the use of alcohol, and the district court was not presented with “any evidence

 7   suggesting that defendant ever seriously abused alcohol.” Id. at 202-03 (vacating special

 8   condition banning all alcohol use where none of the defendant’s underlying conduct involved the

 9   use of alcohol). Thus, we conclude that the special condition banning all alcohol use for life is

10   not reasonably related to any of the factors outlined in Section 5D1.3(b) and necessitates vacatur.

11   Accordingly, the district court’s imposition of special condition 13 is vacated, and the case is

12   remanded for further consideration. Upon remand, the district court should either articulate

13   individualized reasons for imposing special condition 13 or remove that special condition.

14          We have considered Pellistri’s remaining arguments and conclude they are without merit.

15   Accordingly, judgment of the district court is AFFIRMED in part and VACATED in part and

16   REMANDED for further consideration.

17
18                                                         FOR THE COURT:
19                                                         Catherine O’Hagan Wolfe, Clerk of Court




     addressing any such changed circumstances would be for the defendant to seek modification of
     the special condition in the district court at that time.
                                                       9
