12-5012-cr
United States v. McGeoch


                                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 December, two thousand thirteen.

PRESENT:
            JOHN M. WALKER, JR.,
            JOSÉ A. CABRANES,
            BARRINGTON D. PARKER,
                         Circuit Judges.
_____________________________________

UNITED STATES OF AMERICA,

                   Appellee,

                           v.                                     No. 12-5012-cr

JONATHAN MCGEOCH,

                   Defendant-Appellant.

_____________________________________

FOR JONATHAN MCGEOCH:                             Molly Corbett, Research and Writing
                                                  Specialist, for Lisa Peebles, Federal Public
                                                  Defender, Albany, NY

FOR APPELLEE:                                     Lisa M. Fletcher, Elizabeth S. Riker, Assistant
                                                  United States Attorneys, for Richard S.
                                                  Hartunian, United States Attorney, United
                                                  States Attorney’s Office for the Northern
                                                  District of New York, Syracuse, NY.
Appeal from an order of the United States District Court for the Northern District of New York
(Glenn T. Suddaby, Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the District Court’s December 7, 2012 judgment is
AFFIRMED in part and REMANDED for resentencing with respect to Special Condition No. 1.

        Defendant Jonathan McGeoch appeals the judgment of the District Court sentencing him to
151 months’ imprisonment followed by twenty years supervised release with certain special
conditions. McGeoch contends that the District Court erred by (1) adding five offense levels to his
guidelines range pursuant to U.S.S.G. § 4B1.5(b) for engaging in a pattern of prohibited sexual
conduct; and (2) imposing a special condition prohibiting unsupervised contact with individuals
under the age of 18, which impinges on McGeoch’s fundamental right to have contact with his two
minor sons. We assume familiarity with the underlying facts and procedural history of this case, and
repeat only those portions necessary to the resolution of this appeal.

                                        BACKGROUND

        On November 9, 2011, McGeoch was indicted on the charge of using a facility of interstate
commerce to persuade and attempt to persuade a 15-year-old child, and a person he believed to be a
13-year-old child, to engage in illicit sexual activity in violation of 18 U.S.C. § 2422(b).

        The charge was based on the following facts, which McGeoch has not disputed. In August
2011, McGeoch, an army sergeant stationed in Afghanistan, made contact with a boy whom he
knew to be 15 years old (“V-1”) using a Facebook account in the name “Jake Johnson.” McGeoch
engaged in sexual chats with V-1, made a plan to go camping and engage in sexual conduct with V-1,
and emailed V-1 a picture of his penis. V-1’s mother discovered the chats and notified the
authorities. She gave the authorities permission to take over V-1’s Facebook account and to
continue chatting with McGeoch using V-1’s identity. The authorities introduced a fictitious 13-
year-old boy (“V-2”) into the plans for the camping trip. McGeoch engaged in sexually explicit
chats with both V-1 and V-2 whom he believed to be two minor children. McGeoch arranged to
meet the two boys for a camping trip on September 16, 2011, upon his return from Afghanistan.
McGeoch was arrested when he arrived at the agreed-upon meeting point for the camping trip.
Lubricant and condoms were found his vehicle. Following his indictment, McGeoch pleaded guilty
without a plea agreement to the charges.

        A conviction for violation of § 2422(b) carries a statutory maximum term of life
imprisonment and a mandatory minimum term of ten years imprisonment. The pre-sentence
investigation report (“PSR”), prepared by the United States Probation Office, calculated McGeoch’s
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offense level at 34 with a corresponding criminal history category I. The resulting advisory
guidelines range was 151 to 188 months. On December 5, 2012, the District Court sentenced
McGeoch to 151 months’ imprisonment, to be followed by twenty years of supervised release with
special conditions. One condition (“Special Condition No. 1”)1 provides that McGeoch “shall not
have any direct contact [or indirect contact through another person or a device] with a person under
the age of 18 unless it is supervised by a person approved of by the probation officer.” Counsel for
McGeoch objected to the five-level enhancement pursuant to U.S.S.G. § 4B1.5(b) based on “a
pattern of activity involving prohibited sexual conduct.” The District Court asked McGeoch to
review the special conditions of supervised release with his counsel and acknowledge understanding
of those conditions. No objection was made to the conditions of supervised release.

         Judgment was entered on December 7, 2012, and McGeoch appealed the same day.

                                                   DISCUSSION

                               A. Appeal of the Five-Level Upward Adjustment

        On appeal, McGeoch argues that the District Court erred in adding five offense levels to his
guidelines range pursuant to U.S.S.G. § 4B1.5(b), based on “a pattern of activity involving prohibited
sexual conduct,” because the record does not establish that “‘on at least two separate occasions, the
defendant engaged in prohibited sexual conduct with a minor.’” Appellant Br. at 12 (quoting
U.S.S.G. § 4B1.5 cmt. 4(B)(i)). We review a district court’s legal interpretation of the Sentencing
Guidelines de novo, and its related factual findings for clear error. United States v. Mi Sun Cho, 713
F.3d 716, 722 (2d Cir. 2013).

        Application Note 4 of Guidelines section 4B1.5 provides that “[a]n occasion of prohibited
sexual conduct may be considered for purposes of subsection (b) without regard to whether the
occasion (I) occurred during the course of the instant offense; or (II) resulted in a conviction for the
conduct that occurred on that occasion.” U.S.S.G. § 4B1.5 cmt. 4(B)(ii). “Prohibited sexual
conduct” includes, inter alia, an offense under 18 U.S.C. § 2422(b)―McGeoch’s statute of
conviction―and an offense under 18 U.S.C. § 2551 which addresses production and attempted
production of child pornography. See U.S.S.G. § 4B1.5 cmt. 4(A). Trafficking in, or mere receipt or
possession of, child pornography does not constitute prohibited sexual conduct for purposes of §
4B1.5(b). See id.

       Upon review of the record, we agree with the District Court that McGeoch engaged in
“prohibited sexual conduct” on “at least two separate occasions.” The offense of conviction may

1In the sentencing transcript, this condition is noted as Special Condition No. 2, but in the Judgment it is referenced as
“No. 1” and we refer to it as such here.
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provide proof of one of the requisite two separate occasions of “prohibited sexual conduct.” United
States v. Broxmeyer, 616 F.3d 120, 124 (2d Cir. 2010). As additional occasions, the District Court cited
the contact with the purported 13-year-old victim (as distinct from the 15-year-old) and the fact that
McGeoch “used internet accounts [over a period of four to five years] to get [approximately ten]
young boys between ages of 11 to 14 to send him pictures of their erect penises.”

         McGeoch argues that his conduct with respect to the ten boys does not establish that he
engaged in production, as opposed to mere receipt of child pornography, because there is no
evidence that the pictures were created at McGeoch’s request. To the contrary, we think the District
Court had ample basis for finding that McGeoch caused or attempted to cause the production of
child pornography. McGeoch conceded that he “convinced around 10 minors to send him pictures
of their erect penises.” App’x 108 (stating no objection to the facts in the PSR). It is implausible
that ten minor boys took and transmitted photos of their erect penises to McGeoch without his
solicitation, particularly in light of the substance of McGeoch’s chats with V-1 and V-2.2
Consequently, the District Court did not err in applying an increase of five offense levels pursuant to
§ 4B1.5(b).3

                      B. Appeal of Special Condition No. 1 of Supervised Release

        McGeoch has two sons who, at the time of his projected release, will be 14 and 12 years old,
respectively. On appeal, McGeoch argues that Special Condition No. 1, which prohibits him from
having direct or indirect contact with anyone under the age of 18 unless supervised by an individual
approved by his probation officer unreasonably infringes upon his rights as a parent, and was
imposed without a specific finding that such measures were necessary. Appellant Br. at 17.

         The Government argues that McGeoch waived his right to appeal Special Condition No. 1
because, after McGeoch had the opportunity to review (for the first time) the conditions of
supervised release, the District Court stated: “Mr. McGeoch, is that right, you’ve seen those special
conditions there and you understand that you’re going to have to abide by them as part of your term
of supervised release . . . ?” App’x 129. McGeoch responded in the affirmative. Id. While
McGeoch’s response may be interpreted as registering consent to the conditions of supervised
release, we cannot conclude that it constituted a knowing and voluntary waiver of any right to
challenge a specific condition, as opposed to a mere oversight, such that McGeoch should be

2 These facts are even stronger than those in Broxmeyer, which involved defendant’s solicitation of sexually explicit
images from a 17-year-old. Yet in that case we concluded that “Broxmeyer's procurement of a sexually suggestive, albeit
not sexually explicit, image of K.T. sufficed to prove him guilty of attempt[ed production].” Broxmeyer, 699 F.3d at 282.

3 Because we are satisfied that the uncharged conduct with respect to the ten minors meets the requirements for a
pattern of prohibited sexual conduct, we need not address whether McGeoch’s solicitation of the 13-year-old (V-2)
constitutes a separate act of prohibited sexual conduct from the solicitation of the 15-year-old such that the charged
conduct alone would satisfy the requirements of U.S.S.G. § 4B1.5(b).
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foreclosed from raising the issue on appeal. McGeoch’s counsel did not affirmatively state that
there was no objection to Special Condition No. 1; McGeoch simply acknowledged that he was
bound by the terms of supervised release generally, after reviewing them briefly and having just
received a 12-year prison sentence. Cf. United States v. Wellington, 417 F.3d 284, 289-90 (2d Cir. 2005)
(claim waived where, for tactical reasons, defendant made no objection in the district court and his
counsel affirmatively represented that he would forego those rights). We therefore conclude that
McGeoch did not waive his right to challenge Special Condition No. 1.

        We review the sentencing court’s exercise of its broad discretion in setting conditions of
supervised release for abuse of that discretion. United States v. Bello, 310 F.3d 56, 59 (2d Cir. 2002).
 “An erroneous view of the law or a clearly erroneous assessment of the evidence” constitutes an
abuse of discretion. Id. (internal quotation marks omitted). See also United States v. Batista, 684 F.3d
333, 341 (2d Cir. 2012) cert. denied, 133 S. Ct. 1458 (2013) (“An argument forfeited by the defendant
may still be reviewed according to a plain error standard”). A condition of supervised release that
prevents a father from seeing his children outside the presence of an approved monitor is a severe
one subject to careful scrutiny. See Bello, 310 F.3d at 59 (“we carefully scrutinize unusual and severe
conditions” (internal quotation marks omitted)); see also United States v. Reeves, 591 F.3d 77, 82-83 (2d
Cir. 2010) (“Where a condition of supervised release impairs a protected associational interest, our
application of § 3583(d) requirements must reflect the heightened constitutional concerns
involved”).4

         The District Court failed to acknowledge the effect Special Condition No. 1 would have on
McGeoch’s relationship with his own children much less articulate why such a severe intrusion on
the fundamental right to familial association was necessary under the circumstances. See Lehr v.
Robertson, 463 U.S. 248, 261 (1983) (noting that an individual’s “interest in personal contact with his
child acquires substantial protection under the due process clause”). Here, there is evidence in the
record indicating that oversight of McGeoch’s relationship with his sons is warranted. The District
Court specifically explained that an “aggravating factor” at sentencing was that McGeoch had
planned to bring his then 4-year-old son on the camping trip at which he had arranged to meet V1
and V2, “as a cover or excuse for [the] liaison.” App’x 124. Moreover, at the time of McGeoch’s
release, his sons will be in exactly the age range that he has admitted being attracted to. Absent an
individualized inquiry into whether McGeoch’s sexual proclivities pose a threat to his sons, however,
the imposition of a harsh condition of supervised release that either prohibits interaction with his
children or makes such interaction subject to supervision by a person approved of by the probation
officer violates McGeoch’s due process rights. See United States v. Wolf Child, 699 F.3d 1082, 1092-93
(9th Cir. 2012) (holding that application of special condition prohibiting contact with minors to

4Section 3583 states that “release conditions must, among other things, be reasonably related to certain prescribed
sentencing factors and involve no greater deprivation of liberty than is reasonably necessary to achieve the purposes of
sentencing.” Reeves, 591 F.3d at 80 (internal alterations and quotation marks omitted).

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defendants’ immediate family without an individualized inquiry infringed on defendant’s due process
rights). While we take no position on whether this harsh application of Special Condition No. 1 is
warranted under the circumstances, if the District Court intends this result, it must, after providing
McGeoch with an opportunity to be heard, make specific findings to justify such a condition.
Accordingly, we remand the case to the District Court for resentencing only with respect to Special
Condition No. 1.

                                          CONCLUSION

       For the reasons stated above, we AFFIRM in part the District Court’s December 7, 2012
sentence of 151 months’ imprisonment, to be followed by twenty years of supervised release, and
REMAND with instructions that the District Court address the application of Special Condition
No. 1 to McGeoch’s sons.

                                                       FOR THE COURT,
                                                       Catherine O’Hagan Wolfe, Clerk of Court




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