11-3647-cr
United States v. Keenan

                                      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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 2nd day of October, two thousand twelve.

PRESENT:

           PIERRE N. LEVAL,
           JOSÉ A. CABRANES,
           ROBERT A. KATZMANN,
                                Circuit Judges.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
UNITED STATES OF AMERICA,

                     Appellee,

                               -v.-                                                         No. 11-3647-cr

KANE KEENAN,

                      Defendant-Appellant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

FOR APPELLANT:                                    Lee C. Kindlon, Kindlon Shanks & Associates, Albany, NY.

FOR APPELLEE:                                     Paul D. Silver, Assistant United States Attorney (Richard Belliss,
                                                  Assistant United States Attorney, on the brief), Albany, NY, for
                                                  Richard S. Hartunian, United States Attorney for the Northern
                                                  District of New York.




                                                                      1
        Appeal from an August 31, 2011 judgment of the United States District Court for the Northern
District of New York (David N. Hurd, Judge).

    UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the cause is REMANDED with instructions for resentencing.

         Kane Keenan appeals from an August 31, 2011 judgment of the District Court convicting him,
after a guilty plea, on a single count of possession of child pornography in violation of 18 U.S.C.
§ 2252A(a)(5)(b), and sentencing him principally to a prison term of thirty months. We assume
familiarity with the underlying facts and procedural history of this case.

        This appeal arises out of Keenan’s plea of guilty to a charge related to the possession of child
pornography. The parties did not enter into a plea agreement. At sentencing, the District Court
calculated Keenan’s sentencing guidelines and determined that, in light of the sentencing factors
delineated in 18 U.S.C. § 3553(a) and the skepticism regarding the sentencing guidelines applicable to
child pornography expressed by this Court in United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010), a
downward variance from the recommended Guidelines range was appropriate. Explaining that Keenan
“deserve[d] a prison term,” although not of the length called for by the Federal Sentencing Guidelines,
the Court stated, “I will sentence you to sufficient time so that you can get treatment while in prison.”
The Court thereafter imposed a prison term of thirty months.

         The Court proceeded to impose special conditions of supervised release upon the defendant,
some orally and others by reference to a document to which Keenan’s attorney had had the opportunity
to object in writing. The Court’s written judgment, entered two days after the sentencing proceeding
took place, prohibited Keenan from (1) having any contact, whether direct or indirect, with children
under the age of 18; (2) using or possessing a computer with Internet access, unless any such computer
could be monitored by the Government; and (3) possessing any sexually explicit materials, whether legal
or illegal.

         On appeal, Keenan argues that (1) his sentence was procedurally unreasonable because the
District Court erroneously (a) based the length of his sentence on his need for rehabilitation and (b)
failed to adequately consider his arguments for a lower sentence; (2) the sentence was substantively
unreasonable because it gave too much weight to the Guidelines, despite the Court having undertaken a
substantial variance from the recommended Guidelines sentencing range; and (3) the special conditions
imposed upon his supervised release were overbroad or otherwise improper.




                                                    2
                                              DISCUSSION

A.      The Length of the Sentence

        Keenan argues that the District Court erred in sentencing him to a longer term of imprisonment
than it would have otherwise imposed, in order to ensure that Keenan had access to rehabilitative
programs while incarcerated. The Government concedes that the District Court seemed to imply that it
was considering Keenan’s rehabilitative requirements when it determined the length of his sentence. As
both parties correctly argue, such a rationale for extending the length of an incarceratory sentence was
deemed impermissible by the Supreme Court in Tapia v. United States, 131 S. Ct. 2382 (2011).

         In Tapia, the Supreme Court addressed a sentence in which the district court had extended the
sentence it would otherwise have imposed in order to ensure that the defendant was eligible for a
particular treatment program. Id. at 2385. Observing that “imprisonment is not suitable for the purpose
of promoting rehabilitation,” the Supreme Court held that sentencing courts should “consider the . . .
rationales of punishment except for rehabilitation, which [they] should acknowledge as an unsuitable
justification for a prison term.” Id. at 2388 (emphasis omitted). Accordingly, although sentencing courts
are permitted to discuss the issue of rehabilitation when crafting a sentence, id. at 2391–92, after Tapia it
is clear that courts may not extend the length of an incarceratory sentence in order to accommodate the
requirements of rehabilitation. See id. at 2391 (“[18 U.S.C. §] 3582(a) precludes sentencing courts from
imposing or lengthening a prison term to promote an offender’s rehabilitation.”).

        We agree with the parties that it appears the District Court may have based its sentencing
decision in part upon the consideration of the length of time necessary to provide Keenan with proper
rehabilitation. See Joint App’x at 76 (Transcript of Sentencing Proceeding, August 29, 2011) (“I will
sentence you to sufficient time so that you can get treatment while in prison.”). It would have been
error for the District Court to base its sentence, even in part, upon the length of time Keenan would
need to be incarcerated in order to participate in rehabilitative programming.

        On the record before us, we cannot independently determine the degree, if any, to which the
length of the sentence was influenced by that impermissible consideration. Cf. United States v. Yousef, 327
F.3d 56, 156 (2d Cir. 2003) (“We are free to affirm an appealed decision on any ground which finds
support in the record, regardless of the ground upon which the trial court relied.” (quotations and
citations omitted)). We note also that the Government has conceded that the District Court’s statements
at sentencing may indicate Tapia error, and has suggested that a remand is appropriate. We therefore
remand the cause to the District Court with instructions to clarify on the record any effect its
consideration of rehabilitation had upon the length of Keenan’s sentence and, if such a consideration
did enter into the Court’s determination of the appropriate length of the sentence, to revise the sentence



                                                     3
accordingly.1

B.         Restriction on Contact with Children

         Keenan argues that the District Court’s prohibition of any “direct [or indirect] contact with a
person under the age of 18 unless it is supervised by a person approved by the probation officer,” has
the effect of precluding him from contact with his own children, and that we should remand the cause
to the District Court with instructions to permit him to see his children without restriction. The
Government agrees that the special conditions of supervised release that would interfere with Keenan’s
ability to spend time with his children and other minor family members (i.e., Special Conditions Three
and Four) may be inappropriate. The Government does not appear to argue that Keenan is likely to be a
danger to his family, and it requests that we remand the cause to the District Court in order to permit it
to reconsider and modify the scope of Special Conditions Three and Four as they relate to Keenan’s
contact with his family.

        On the basis of the agreement of the parties, we remand the cause to the District Court for
reconsideration of the portion of the judgment that imposed the allegedly overbroad Special Conditions
Three and Four, with instructions to reconsider the limitations that the Court placed upon the
interactions between Keenan and his minor children and relatives. The Government concedes that
Keenan may have a protected liberty interest in contact with his children, which the District Court’s
conditions may violate. The Government urges that we remand to allow the District Court to inquire
into these questions. The District Court should make appropriate findings if it decides to continue
imposing restrictions on Keenan’s contact with his own children.

C.         Other Issues

        The remaining issues on appeal include, inter alia, Keenan’s argument that prohibiting him from
(a) using or possessing a computer with Internet access, unless any such computer is monitored by the
Government, (b) possessing any sexually explicit materials, whether legal or illegal, and (c) having any
“indirect” contact with children using various communications media including telephone or radio, are
inappropriate and overbroad. Keenan also opposes several other restrictions on his use of a computer
at work and elsewhere.

        We have considered the parties’ arguments with regard to each of the other issues on appeal,
including any not specifically mentioned here, and conclude that each of Keenan’s remaining arguments
is meritless. On remand, the District Court shall reconsider the length of the sentence and the special
conditions noted above. If the Court decides to remove or alter any of these provisions, it should

1
    We note that, because we remand for resentencing, Keenan’s remaining arguments regarding the length of his sentence are
     moot.
                                                              4
vacate the sentence and impose a new sentence. Regardless of whether the Court decides to retain these
provisions without change, or to eliminate or modify them, the Court should add findings and
explanations justifying the ultimate sentence.

                                           CONCLUSION

        We have carefully reviewed the record and the parties’ arguments on appeal and, except as stated
above, we determine that the defendant’s arguments are meritless. The August 31, 2011 judgment of the
District Court is remanded for further proceedings consistent with this order.


                                              FOR THE COURT,

                                              Catherine O’Hagan Wolfe, Clerk of Court




                                                   5
