 11-0751-cr
 USA v. Magner

                              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, at 500 Pearl Street, in the City of New York,
 on the 25th day of January, two thousand twelve.

 Present: ROBERT A. KATZMANN,
          GERARD E. LYNCH,
                      Circuit Judges,
          LEWIS A. KAPLAN,
                      District Judge.*
 ____________________________________________________________

 UNITED STATES OF AMERICA,

                             Appellee,

                             -v-                            No. 11-0751-cr


 JOSEPH P. MAGNER, AKA REPTILIANAGENDA@MSN.COM, AKA
 “FAMLAW@OPTONLINE.NET”,

                      Defendant-Appellant.
 ____________________________________________________________

 For Defendant-Appellant:                    EDWARD S. ZAS, Appeals Bureau, Federal Defenders of
                                             New York, Inc., New York, N.Y.

 For Appellee:                               ALLEN L. BODE (David C. James, on the brief),
                                             Assistant United States Attorneys, for Loretta E. Lynch,
                                             United States Attorney for the Eastern District of New
                                             York, Brooklyn, N.Y.


         *
        Judge Lewis A. Kaplan, of the United States District Court for the Southern District of
 New York, sitting by designation.
       Appeal from the United States District Court for the Eastern District of New York
(Bianco, J.).

         ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the February 23, 2011 judgment of the district court is AFFIRMED in

part and VACATED and REMANDED in part for further proceedings consistent with this

order.

         Defendant-Appellant Joseph P. Magner (“Magner”) appeals from a February 23, 2011

judgment of the United States District Court for the Eastern District of New York (Bianco, J.),

following Magner’s guilty plea to knowingly receiving, via his computer, a visual depiction of a

minor engaging in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(2). The district

court imposed a sentence of 108 months of imprisonment, the mandatory minimum term of five

years of supervised released, and the mandatory $100 special assessment. Additionally, the

district court adopted a special condition of supervised release that prohibits Magner from using

an electronic device “to access pornography of any kind. This includes, but is not limited to,

accessing pornographic websites, including websites depicting images of nude adults or minors.”

App. 153. On appeal, Magner principally contends that: (1) his sentence is procedurally

unreasonable because the district court, in violation of Tapia v. United States, 131 S. Ct. 2382

(2011), considered his need for rehabilitation as a basis for determining his term of

imprisonment; (2) his sentence is substantively unreasonable; and (3) the special condition of

supervised release is “impermissibly vague, overly broad, and unjustified by this record.” Pl. Br.

20-21. We assume the parties’ familiarity with the underlying facts and procedural history of

this case.



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        Generally, this Court reviews sentences for reasonableness. See United States v. Cavera,

550 F.3d 180, 187 (2d Cir. 2008) (en banc). This standard applies “both to ‘the sentence itself’

and to ‘the procedures employed in arriving at the sentence.’” United States v. Verkhoglyad, 516

F.3d 122, 127 (2d Cir. 2008) (quoting United States v. Fernandez, 443 F.3d 19, 26 (2d Cir.

2006)). The procedural inquiry focuses on whether the district court committed a “significant

procedural error, such as failing to calculate (or improperly calculating) the Guidelines range,

treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a

sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence.”

United States v. Dorvee, 616 F.3d 174, 179 (2d. Cir. 2010) (internal quotation marks omitted).

When conducting a substantive review, we consider the totality of the circumstances, and give

due deference to the sentencing judge’s discretion. See Cavera, 550 F.3d at 190. In both its

procedural and substantive aspects, reasonableness review employs a “deferential abuse-of-

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

        Magner concedes that because he failed to raise his objections in the district court, the

district court’s rulings should be reviewed under the plain error standard set forth in Federal Rule

of Criminal Procedure 52(b). Plain error is (1) error, that (2) is plain, (3) affects substantial

rights, and (4) seriously affects the fairness, integrity, or public reputation of judicial

proceedings. See United States v. Cotton, 535 U.S. 625, 631-32 (2002). The “third and final

limitation on appellate authority under Rule 52(b)” – whether a plain error affects substantial

rights – generally requires “that the error . . . [was] prejudicial: It must have affected the

outcome of the district court proceedings.” United States v. Olano, 507 U.S. 725, 734 (1993).




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       We first consider Magner’s claim that the district court erred by seeking to promote his

rehabilitation through the imposition of a lengthy prison term. In Tapia, the Supreme Court

interpreted 18 U.S.C. § 3582(a) and held that a sentence is procedurally unreasonable when a

prison term is lengthened to allow the defendant to qualify for a particular drug treatment

program. 131 S. Ct. at 2385. While the Court noted that “[a] court commits no error by

discussing the opportunities for rehabilitation within prison or the benefits of specific treatment

programs” it may not “select[] the length of the sentence to ensure that [the defendant] c[an]

complete” a particular rehabilitation program. Id. at 2392. Further, the Court held that the

sentencing court’s statements in Tapia “suggest[ed] that the [district] court may have calculated

the length of Tapia’s sentence to ensure that she received certain rehabilitative services. And

that a sentencing court may not do.” Id.

       Magner’s Tapia argument must be rejected because none of the district court’s statements

indicate that Judge Bianco impermissibly considered his need for rehabilitation as a basis for

selecting his term of imprisonment. Reading the district judge’s comments in their entirety and

in the context of defendant’s argument that the sentence should focus on rehabilitation rather

than punishment, it is clear that the judge was emphasizing that in order to protect the public and

incapacitate Magner from repeating his offense, whatever rehabilitation Magner might be

provided would have to occur in a secure environment, and that Magner would present a danger

for many years. For instance, the district court did not err in observing that “a long period of

incarceration is necessary to ensure” that Magner “will not be a danger to the public, specifically

to children, until he had a long and substantial rehabilitation process.” App. 133. It is

undisputed that district courts should consider public safety and the need for incapacitation when


                                                 4
determining sentences and, in making this statement, Judge Bianco was referring to the fact that

Magner must be incapacitated to protect the public, not his need for rehabilitation per se. For the

same reason, we find no error in the district court’s rejection of the Probation Department’s

recommendation of a sixty-month sentence based on “all the factors,” including the “amount of

time Mr. Magner needs to be in jail in order to protect society, to get him the rehabilitation he

needs. . . . I need to ensure there is sufficient time for him to get it and to protect society.” App.

137.

       We next turn to Magner’s claim that his sentence is substantively unreasonable. This

argument is also unavailing. The district court recognized and considered the various factors on

which a sentence should be based. Not only did Judge Bianco state that he had taken into

account the § 3553(a) factors, his authority to depart from the Guidelines, and the need to avoid

unwarranted sentencing disparities, he further identified the various factors he had balanced,

including, inter alia: (1) the extremely serious nature of Magner’s offense; (2) the lack of

evidence indicating that Magner ever physically abused a child; (3) the harm child pornography

causes to its victims; (4) Magner’s professed desire for rehabilitation; and, (5) his high risk of

recidivism. Accordingly, we conclude that the district court’s determination “‘can[] be located

within the range of permissible decisions.’” Cavera, 550 F.3d at 189 (quoting United States v.

Rigas, 490 F.3d 208, 238 (2d Cir. 2007)).

       On appeal, Magner primarily contends that his sentence is substantively unreasonable

because it contravenes this Court’s holding in Dorvee. Magner’s case, however, is

distinguishable from Dorvee in numerous respects. Most importantly, unlike the district court in

Dorvee, Judge Bianco expressly acknowledged his obligation to “carefully apply the[] [child


                                                   5
pornography] guidelines” to avoid “generat[ing] unreasonable results in terms of double

counting, enhancements and various other situations if the guidelines are just applied

mechanically.” App. 117. Additionally, Judge Bianco specifically addressed the policy

implications of the relevant Guidelines enhancements and concluded that, with respect to

Magner in particular, these adjustments made sense. Indeed, the district court found that,

regardless of the Guidelines recommendation, he would have imposed a 108-month sentence.

       Finally, we consider Magner’s objection to the special condition of supervised release.

Given the latitude district courts have in imposing supervised release conditions, this Court

reviews “the conditions themselves [under] an abuse of discretion standard, where any error of

law constitutes an abuse of discretion.” United States v. Reeves, 591 F.3d 77, 80 (2d Cir. 2010)

(internal quotation marks omitted). Due process requires that release conditions be “sufficiently

clear to give [a] person of ordinary intelligence a reasonable opportunity to know what is

prohibited, so that he may act accordingly.” United States v. Simmons, 343 F.3d 72, 81 (2d Cir.

2003) (internal quotation marks omitted). Additionally, release conditions must be “reasonably

related” to certain prescribed sentencing factors and “‘involve no greater deprivation of liberty

than is reasonably necessary for the purposes of sentencing.’” Id. at 80 (internal quotation marks

and brackets omitted); see also 18 U.S.C. § 3583(d).

       Magner argues that the condition of supervised release prohibiting him from accessing

pornography (1) is inherently vague; (2) should be limited to child pornography; and, (3) is

overbroad insofar as it specifically defines pornography to include any “website depicting

images of nude adults or minors.” The first two of these arguments are not persuasive. Our

cases hold that in the context of child pornography convictions, the term “pornography” in a



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condition of supervised release should be interpreted in light of the definition of pornography in

18 U.S.C.    § 2256, which is sufficiently clear to defeat the vagueness argument, see United

States v. Cabot, 325 F.3d 384, 385 (2d Cir. 2003); United States v. Simmons, 343 F.3d 72, 81-82

(2d Cir. 2003), and that restricting access to adult pornography as so defined is permissible in

such cases, id. At 82.

       Magner’s third argument, however, as the government effectively conceded at oral

argument, is valid. To define “pornography” as including any website with images of nude

adults or children revives the vagueness problem by extending the prohibition to materials that

are not by any normal definition obscene, pornographic, or even erotic, such as art museum

websites containing works of art (including, for example, religious images). Because we cannot

find that such a broad definition is reasonably related to any of the proper objectives of

sentencing, we vacate the special condition and remand to the district court to reconsider its

formulation. In this connection, we note that the government has indicated that the Probation

Department in the Eastern District has developed replacement language that specifically

references the definition of pornography in section 2256, and that does not contain the

prohibition on nude images to which Magner objects.

       We have considered Magner’s remaining arguments and find them to be without merit.

Accordingly, for the foregoing reasons, we VACATE and REMAND with respect to the

challenged condition of supervised release and otherwise AFFIRM.

                                                  FOR THE COURT:
                                                  CATHERINE O’HAGAN WOLFE, CLERK




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