                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-8-2009

USA v. Mangan
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3939




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NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                       No. 07-3939
                                      _____________

                           UNITED STATES OF AMERICA

                                            v.

                                    JOHN MANGAN,

                                           Appellant
                                   ___________________

                    On Appeal from the United States District Court
                              for the District of New Jersey
                             District Court No. 07-CR-00136
                 District Judge: The Honorable Dickinson R. Debevoise
                                 ____________________

                              Argued December 10, 2008

                 Before: McKEE, SMITH, and ROTH, Circuit Judges

                               (Filed: January 08, 2009 )
James F. Gizzi – Argued
233 Rock Road
Glen Rock, NJ 07452
       Counsel for Appellant
George S. Leone
Steven G. Sanders – Argued
Office of United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102-0000
       Counsel for Appellee

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                                          OPINION


SMITH, Circuit Judge.

       John Mangan pleaded guilty to a one count information charging him with

possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). The United

States District Court for the District of New Jersey sentenced Mangan to the statutory

minimum of 120 months and a ten year term of supervised release. The District Court

imposed not only the standard conditions of supervised release under 18 U.S.C. §

3583(d), but also requirements for (1) mental health evaluation and treatment;

(2) restrictions on Mangan’s contact with minors in his employment and volunteer

activities; (3) computer monitoring; and (4) periodic polygraph examination.

       Mangan filed a timely appeal.1 Mangan asserted in his appellate brief that the

District Court erred because it did not provide notice of its intent to impose either a ten

year term of supervised release or the four nonstandard conditions. In addition, Mangan

argued that vacatur is warranted because the District Court did not make any factual

findings to support the deprivation of liberty resulting from the ten year term and three of

the nonstandard conditions.2


       1
        The District Court exercised jurisdiction pursuant to 18 U.S.C. § 3231. Appellate
jurisdiction exists under 18 U.S.C. § 3742(a).
       2
      Although Mangan agreed to waive his right to file a direct appeal, the
Government acknowledged that there was an error in the plea agreement which resulted

                                              2
       At oral argument, Mangan appropriately conceded that his challenge to the notice

he was provided lacked merit in light of the Supreme Court’s decision in Irizarry v.

United States, 128 S. Ct. 2198 (2008). We review the remaining issues Mangan raised on

appeal for plain error because Mangan did not object at sentencing to any aspect of the

District Court’s imposition of supervised release. United States v. Voelker, 489 F.3d 139,

143 n.1 (3d Cir. 2007). In Voelker, we reiterated that “[c]onditions of supervised release

must be supported by some evidence that the condition imposed is tangibly related to the

circumstances of the offense, the history of the defendant, the need for general

deterrrence, or similar concerns.” Id. at 144 (citing United States v. Pruden, 389 F.3d

241, 248–49 (3d Cir. 2005)); see also 18 U.S.C. § 3583(d). We instructed that

       [w]here a sentencing court fails to adequately explain its reasons for
       imposing a condition of supervised release or the condition’s relationship to
       the applicable sentencing factors, we may nevertheless affirm the condition
       if we can “ascertain any viable basis for the . . . restriction in the record
       before the District Court . . . on our own.”

Id. (quoting United States v. Warren, 186 F.3d 358, 367 (3d Cir. 1999)).

       Mangan bears the burden of showing that the ten year term of supervised release

was unreasonable. United States v. Cooper, 437 F.3d 324, 332 (3d Cir. 2006). Yet he has

not explained why this ten year term of supervised release, which is well below the



in a mis-stating of the term of supervised release. The Government prudently chose not
to invoke the appellate waiver. See United States v. Goodson, 544 F.3d 529, 535 (3d Cir.
2008) (acknowledging that an appellate waiver will not bar appellate review if the waiver
is not invoked by the government). Accordingly, we address the merits of the issues
Mangan raised on appeal.

                                             3
statutory limit of life, is unreasonable in light of the offense of conviction. Mangan’s

contention that the District Court did not consider the factors set forth in 18 U.S.C.

§ 3553 in imposing the ten year term conveniently ignores that the sentencing proceeding

highlighted the fact that Mangan was a recidivist, as he had a state conviction for a sexual

offense involving a minor, and that the District Court rejected Mangan’s request to not

impose any term of supervised release. In light of these circumstances, we conclude that

the District Court meaningfully considered the § 3553(a) factors in imposing this ten year

term of supervised release and that the term was reasonable.

       Mangan also contends that the District Court erred by imposing nonstandard

conditions requiring mental health evaluation and treatment, limited contact with minors,

and computer monitoring.3 The error is evident, in Mangan’s view, because the District

Court failed to make any factual findings in support of these conditions. Moreover,

Mangan contends that the District Court improperly delegated too much authority to the

probation officer with regard to the conditions regarding mental health evaluation and

treatment, and the limitation in contact with minors.

       We conclude, in light of the record before us, that the basis for each of these

conditions of supervised release is patent given the nature of the offense, the fact that he




       3
       Inasmuch as a lack of notice was the only basis for Mangan’s challenge of the
nonstandard condition of submitting to periodic polygraph examination, we need not
consider whether factual findings support the District Court’s imposition of this
nonstandard condition.

                                              4
received psychiatric treatment contemporaneously with his prior state conviction, his

status as an educator, and his previous state court conviction for sexual assault. See

Voelker, 489 F.3d at 150, 153–55 (acknowledging that some restrictions, such as

computer monitoring and limiting contact with children, were warranted for a defendant

convicted of receiving material depicting the sexual exploitation of a minor in violation of

18 U.S.C. § 2252(a)(2)). The need for these conditions is further supported by Mangan’s

admission during his guilty plea colloquy that his computer contained more than 300

pictures of child pornography and that the images depicted actual children. We conclude

that the District Court’s imposition of these nonstandard conditions of supervised release

was reasonably necessary to achieve deterrence and protection of the public. See 18

U.S.C. § 3583(d).

       The condition requiring mental health evaluation and treatment, however, cannot

be sustained in its current form because it improperly delegates too much authority to the

probation officer. As we instructed in United States v. Pruden, a probation officer “may

not decide the nature or extent of the punishment imposed[.]” 398 F.3d at 250. Although

the District Court mandated that Mangan “shall participate in a mental health program for

evaluation and/or treatment,” the Court provided that Mangan’s participation would be

“as directed by the U.S. Probation Office” and that Mangan “shall remain in treatment

until satisfactorily discharged and with the approval of the U.S. Probation Office.” This

is problematic because it bestows upon the probation officer the authority to determine



                                             5
the type of program and the duration of treatment, if any. In our view, it is the District

Court that must determine, albeit with the advice or opinion of a mental health

professional, the type and duration of mental health treatment. These are substantive

aspects of Mangan’s sentence and not simply administrative details. Id. at 251.

Accordingly, we will vacate that portion of the District Court’s judgment imposing as a

condition of supervised release a requirement for mental health evaluation and treatment,

and will remand to the District Court to determine if a revised condition for mental health

treatment is warranted. We otherwise will affirm the balance of the District Court’s

judgment.




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