12-399-cr
United States of America v. Reynolds

                               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 the 14th
day of June, two thousand thirteen.

Present:    ROSEMARY S. POOLER,
            DEBRA ANN LIVINGSTON,
                        Circuit Judges.
            RICHARD W. GOLDBERG,*
                                Judge.
_____________________________________________________

UNITED STATES OF AMERICA,

                                  Appellee,

           -v-                                           12-399-cr
BRUCE S. REYNOLDS,

                                  Defendant-Appellant.

_____________________________________________________

Appearing for Appellant:          Jay S. Ovsiovitch, Federal Public Defender’s Office, Western
                                  District of New York, of counsel (Robert G. Smith, Assistant
                                  Federal Public Defender, Western District of New York, on the
                                  brief), Rochester, NY

Appearing for Appellee:           Stephan J. Baczynski, Assistant United States Attorney for the
                                  Western District of New York (William J. Hochul Jr., United
                                  States Attorney, on the brief), Buffalo, NY


        *
          The Honorable Richard W. Goldberg, United States Court of International Trade,
sitting by designation.
       Appeal from the United States District Court for the Western District of New York
(Larimer, J.).

    ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        Bruce Reynolds appeals from the January 26, 2012 judgment entered by the United
States District Court for the Western District of New York (Larimer, J.) sentencing him
principally to 102 months’ imprisonment and a 15-year term of supervised release. We assume
the parties’ familiarity with the underlying facts, procedural history, and specification of issues
for review.

        Pursuant to an agreement with the government, Reynolds pleaded guilty to one count
possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). In the plea
agreement, both sides calculated an applicable sentencing guidelines range of 70 to 87 months’
imprisonment. However, the presentence report (“PSR”) calculated a Guidelines range of up to
120 months’ imprisonment. The different calculation resulted from the testimony of a
previously unknown witness who came forward after Reynolds’ plea was accepted, but before
Reynolds was sentenced. The witness told the government that Reynolds had molested him as a
child. Based on the witness statement, probation applied a five-level increase for engaging in a
pattern of activity involving the sexual abuse or exploitation of a minor, U.S.S.G. § 2G2.2(b)(5).

        The government adopted the recommendation set forth in the PSR and advocated for
Reynolds to be sentenced to 120 months’ imprisonment, which Reynolds argues is a breach of
the plea agreement. We disagree. The plain language set forth in Paragraph 17(d) of the plea
agreement allowed the government to “modify its position with respect to any sentencing
recommendation” if “the government receives previously unknown information regarding the
recommendation or factor.” There is nothing ambiguous in the language of Paragraph 17(d) – if
the government receives new, relevant information after sentencing, it can change its sentencing
recommendation. The record demonstrates the government learned of the abuse allegations only
after Reynolds pleaded guilty. The allegations are “previously unknown information” relevant
to the government’s sentencing recommendation. The plea agreement was not breached.

        Reynolds also challenges the district court’s imposition of a special condition on
Reynolds’ supervised release: he was required to “provide the U.S. Probation Office with access
to any requested personal and/or business financial information.” The district court stated the
condition was necessary “to assist [Probation] in making sure you’re not accessing inappropriate
media, matters relating to child pornography.” Reynolds argues this special condition is not
reasonably related to the nature and circumstances of his offense, and is a greater deprivation of
liberty than is necessary. “The propriety of conditions of supervised release are judged by an
abuse of discretion standard.” United States v. Dupes, 513 F.3d 338, 342 (2d Cir. 2008).
“Although the district court enjoys broad discretion in imposing these conditions, its discretion is
not ‘untrammeled’ and ‘our Court will carefully scrutinize unusual and severe conditions.’” Id.
(citation omitted). To fall within the district court’s discretion, “[a] condition of supervised
release need only be reasonably related to any one of” the factors set forth in U.S.S.G. §
5D1.3(b). Id. at 344.


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        Reynolds argues the condition is not reasonably related to the nature of his offense
because he was trading images of child pornography, not purchasing child pornography. The
government argues that the special condition is reasonably related to Reynold’s characteristics
because the record before the district court indicates Reynolds had a history of spending large
amounts of money under suspicious circumstances. In United States v. Brown, our Court held
that while “it is true that we generally have affirmed special conditions mandating access to
financial information only in cases where the sentence included a fine or restitution,” the
Guidelines do not “preclude a court from requiring financial disclosure in other ‘appropriate’
situations.” 402 F.3d 133, 136 (2d Cir. 2005) (citing U.S.S.G. § 5D1.3(d)). Given Reynolds’
financial history, we find the district court did not abuse its discretion in imposing the financial
monitoring special condition.

       We have examined the remainder of the arguments raised by Reynolds and find them to
be without merit. Accordingly, the order of the district court hereby is AFFIRMED.

                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk




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