17-3537
United States v. Fuller
                                  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 TO 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 29th day of January, two thousand twenty.

PRESENT:
           DENNIS JACOBS,
           SUSAN L. CARNEY,
           MICHAEL H. PARK,
                       Circuit Judges.
_________________________________________

UNITED STATES OF AMERICA,

                     Appellee,

                             v.                                           No. 17-3537

ROBIN ALAN FULLER,

           Defendant-Appellant.
_______________________________________

FOR DEFENDANT-APPELLANT:                           ERIN MCCAMPBELL PARIS, Lipsitz Green
                                                   Scime Cambria LLP, Buffalo, NY.

FOR APPELLEE:                                      SAMUEL P. NITZE (Moira Kim Penza, on
                                                   the brief), Assistant United States Attorneys,
                                                   for Richard P. Donoghue, United States
                                                   Attorney for the Eastern District of New
                                                   York, Brooklyn, NY.
        Appeal from a judgment of the United States District Court for the Eastern District
of New York (Cogan, J.).

        UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the District Court’s judgment entered on October
26, 2017, is AFFIRMED IN PART and VACATED IN PART, and the cause is
REMANDED for further proceedings consistent with this Order.

        Robin Alan Fuller appeals from a judgment of conviction for possession of child
pornography, in violation of 18 U.S.C. § 2252(a)(4)(B), entered after a guilty plea. The United
States District Court for the Eastern District of New York (Cogan, J.) sentenced Fuller
primarily to 97 months of imprisonment, to be followed by a five-year term of supervised
release with special conditions. Fuller was also subject to a forfeiture order. On appeal,
Fuller raises three issues: He argues that (1) the term of incarceration imposed is
substantively unreasonable; (2) certain of the special conditions of supervised release violate
his First and Fourth Amendment rights; and (3) the forfeiture order should be vacated. We
assume the parties’ familiarity with the underlying facts, procedural history, and arguments
on appeal, to which we refer only as necessary to explain our decision.

    1. The Incarceratory Sentence

        Fuller first contends that the imposition of a 97-month term of incarceration—a
sentence within the range of 78 to 97 months recommended by the U.S. Sentencing
Guidelines (“USSG” or the “Guidelines”)—is substantively unreasonable.1 We apply “a
particularly deferential form of abuse-of-discretion review” when in the arena of sentencing,
and will find a sentence substantively unreasonable “only in exceptional cases where the trial
court’s decision cannot be located within the range of permissible decisions.” United States v.




 1 The government urges us to enforce Fuller’s waiver, through his plea agreement, of his right to appeal the

imposition of “a term of imprisonment of 108 months or below.” App’x at 13.4. Fuller rejoins that, in failing
to assert the appellate waiver in its motion for summary affirmance, “[t]he government waived its waiver
argument.” Appellant’s Reply Br. 1-4. Because we hold that Fuller’s challenge to the substantive
reasonableness of his sentence fails, we need not consider waiver.


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Cavera, 550 F.3d 180, 188-89 & n.5 (2d Cir. 2008).2 Although we will not “presume that a
Guidelines sentence is reasonable, we have recognized that in the overwhelming majority of
cases, a Guidelines sentence will fall comfortably within the broad range of sentences that
would be reasonable in the particular circumstances.” United States v. Eberhard, 525 F.3d 175,
179 (2d Cir. 2008).

        Fuller relies on United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010), and United States v.
Jenkins, 854 F.3d 181 (2d Cir. 2017), which counsel that, in child pornography cases, district
courts should be skeptical of “sentencing enhancements that are all but inherent to the crime
of conviction” such that “adherence to the guidelines results in virtually no distinction
between the sentences for” ordinary and serious offenders. Dorvee, 616 F.3d at 186-87. The
District Court sentenced Fuller to 97 months of incarceration after diligently considering
conduct distinguishing his from an ordinary child pornography possession case. See, e.g.,
App’x at 45-58 (record evidence demonstrating that Fuller sent emails to various third
parties attaching child pornography and at least suggesting that he engaged in physical sexual
contact with prepubescent children); id. at 164 (District Court’s factual finding that it had no
“doubt that [Fuller] had, in fact, had a sexual relationship with,” i.e., had sexually abused, his
daughter); id. at 179-81 (District Court’s factual findings regarding Fuller’s history and
characteristics, including that Fuller “physically abused his son”). On this record, we easily
conclude that the District Court did not abuse its discretion in imposing a sentence of 97
months’ incarceration.

     2. The Monitoring Condition and the Internet Restriction Condition

        Next, Fuller challenges the imposition of two special conditions on his supervised
release.3 The first of these, Special Condition #8 in the final judgment (the “Monitoring



 2 Unless otherwise noted, this order omits all internal quotation marks and citations in text quoted from case

law.
 3 The parties dispute whether we review a challenge to a condition of supervised release de novo, for plain
error, or under the relaxed plain error standard. Fuller received notice of the special conditions to be imposed
for the first time at the sentencing hearing, and we typically “relax the plain error standard when the
defendant does not receive prior notice of the condition[s].” E.g., United States v. Green, 618 F.3d 120, 122 (2d


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Condition”), provides in relevant part:

        The defendant shall also cooperate with the U.S. Probation Department’s
        Computer and Internet Monitoring program. [C]ooperation shall include, but
        not be limited to, identifying computer systems, Internet capable devices,
        and/or similar electronic devices the defendant has access to, and allowing the
        installation of monitoring software on said devices, at the defendant’s expense.
App’x at 191.

        Although a defendant may appeal most aspects of a sentence imposed as soon as the
final judgment has been entered, we explained in United States v. Balon that a challenge to a
condition of supervised release is ripe for appellate review only if “(1) the issues are fit for
judicial consideration, and (2) withholding of consideration will cause substantial hardship to
the parties.” 384 F.3d 38, 46 (2d Cir. 2004). Because “[t]he technology that holds the key to
whether the [Monitoring] special condition . . . involves a greater deprivation of liberty than
reasonably necessary is constantly and rapidly changing,” id., and because Fuller will not
begin his term of supervised release until April 2028, he fails the first prong of the ripeness
test. Nor has he demonstrated the second: We discern no hardship to Fuller from our
withholding consideration at this time, as he will have an opportunity to challenge the
Monitoring Condition at a date closer to the start of his term of supervised release, through
a proceeding brought initially in the District Court under 18 U.S.C. § 3583(e)(2).
Accordingly, we dismiss as unripe Fuller’s challenge to the Monitoring Condition. See United
States v. Randazzo, 763 F. App’x 140, 140-41 (2d Cir. 2019) (dismissing as unripe special
condition of supervised release identical to the Monitoring Condition).

        Fuller also challenges Special Condition #9, which restricts his access to the Internet
during his post-incarceratory period of supervised release (the “Internet Restriction
Condition”). At sentencing, the District Court stated that condition as follows:

        [Fuller] will not go to any dating websites or anything else that seeks to match
        people together for establishing personal relationships.



Cir. 2010) (per curiam). But because the standard of review that we apply is not determinative of this appeal,
we do not address the parties’ dispute further.


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App’x at 183 (emphasis added). The written judgment, however, frames Special Condition
#9 as follows:

        The defendant may not access any website that permits persons under the age
        of 18 to be registered users for the purpose of establishing personal
        relationships with other users; allow minors to post profiles that provide
        information about themselves; or allows direct or real time communication with
        other users.
Id. at 191.

        The written version of the Internet Restriction Condition both narrows and expands
the orally stated condition: On the one hand, it prohibits Fuller from accessing only those
websites that allow minors to register or post profiles, as opposed to any website that
facilitates dating or other personal relationships; on the other, it prohibits Fuller from
accessing any website that allows for direct or real-time communication with other users, not
just those that enable users to form personal relationships. The orally stated condition,
which is usually held to control over the written, see, e.g., United States v. Washington, 904 F.3d
204, 208 (2d Cir. 2018), also includes the open-ended phrase “or anything else,” which Fuller
argues is impermissibly vague and places him at risk of inadvertent violation.

        Although a “written judgment may clarify the terms of the spoken sentence,” id.
(emphasis added), the written judgment here substantively modifies the oral pronouncement.
We therefore remand the matter to the District Court to resolve the conflict between the
oral and written conditions, address the concerns raised by the phrase “or anything else,”
and resentence Fuller accordingly. In so doing, the District Court should further consider
whether a narrower statement of the Internet Restriction Condition could achieve the goals
of sentencing. Cf. Packingham v. North Carolina, 137 S. Ct. 1730, 1737 (2017) (explaining that
prohibition on using social media “bars access to what for many are the principal sources for
knowing current events, checking ads for employment, speaking and listening in the modern
public square, and otherwise exploring the vast realms of human thought and knowledge”).

    3. The Forfeiture Order

        Finally, Fuller asks this Court to vacate the judgment of forfeiture, which required



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him to surrender certain of his electronic devices used (or intended to have been used) in
connection with the offense of conviction. Rule 32.2(b)(4)(B) of the Federal Rules of
Criminal Procedure provides:

       The [sentencing] court must include the forfeiture when orally announcing the
       sentence or must otherwise ensure that the defendant knows of the forfeiture
       at sentencing. The court must also include the forfeiture order, directly or by
       reference, in the judgment, but the court’s failure to do so may be corrected at
       any time under Rule 36.
Fuller’s position is that the District Court’s failure to reference forfeiture during the October
2018 sentencing proceedings means he need not comply with the final order of forfeiture,
which the District Court entered in May 2017. We review the court’s application of the
forfeiture statute de novo. United States v. Peters, 732 F.3d 93, 98 (2d Cir. 2013).

       The District Court failed to state at sentencing that Fuller was required to forfeit
certain electronic devices. Nor did the District Court incorporate the forfeiture order into
the final written judgment. Both omissions were error. But Fuller cannot credibly argue that
he lacked notice and an opportunity, long before sentencing, to contest that he would be
subject to the ordered forfeiture where: the indictment contained a forfeiture provision; the
plea agreement contemplated forfeiture; the government posted, and the District Court so-
ordered, the preliminary forfeiture order; the government submitted, and the District Court
so-ordered, the final forfeiture order; and the PSR provided for forfeiture of the relevant
items. Cf. United States v. Mitchell, 70 F. App’x 707, 714 (4th Cir. 2003) (finding “failure to
incorporate the forfeiture order into the judgment” to be “simply a ministerial error that did
not seriously affect the fairness, integrity, or public reputation of judicial proceedings” when
defendant “was clearly on notice of the pending forfeiture” and did not “raise an objection
or respond”). We therefore dismiss Fuller’s substantive challenge to the forfeiture of his
electronic property. We direct the District Court on remand, however, to correct the written
judgment by documenting the ordered forfeiture in accordance with Rule 36 of the Federal
Rules of Criminal Procedure.

                                                * * *




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       For the reasons set forth above, the District Court’s judgment is AFFIRMED IN
PART and VACATED IN PART, and the cause is REMANDED for further proceedings
consistent with this order.

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




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