Tuesday, December 3rd, 2013

Supervised Release Condition Infringing Parental Rights Required Remand

United States v. McGeoch, No. 12-5012-cr (2d Cir. Dec. 3, 2013) (Walker, Cabranes, and Parker) (summary order), available here

The defendant was convicted of using a facility of interstate commerce to persuade a 15-year-old and a person he believed to be a 13-year-old to engage in illegal sexual activity. He was sentenced principally to 151 months of imprisonment and twenty years of supervised release. One of the “special conditions” of supervised release prohibited the defendant from having unsupervised contact with persons under the age of 18, including his two minor sons.
On appeal, the defendant first argued that the district court erred by adding five offense levels to his guidelines range under U.S.S.G. § 4B1.5(b), based on “a pattern of activity involving prohibited sexual conduct.” The Circuit disagreed, holding that the defendant engaged in “prohibited sexual conduct” on “at least two separate occasions,” thus establishing the requisite “pattern.” The offense of conviction established one of the two separate occasions, and the district court properly found that the defendant had used internet accounts over several years to convince about ten other boys to send him pornographic images of themselves. Thus, the five-level enhancement for a “pattern” of improper sexual activity was appropriate.
The defendant had more success with his second argument: that the special condition of supervised release restricting his contact with his own children unreasonably infringed upon his rights as a parent, and was imposed without a specific finding that such a measure was necessary. Though the Circuit found some evidence that oversight of the defendant’s relationship with his sons is warranted,  the district court failed to engage in an “individualized inquiry” into whether the defendant posed a threat to his sons. Without such an inquiry, the “harsh condition” imposed by the district court violated the defendant’s due process rights.  The panel remanded so that the district court could modify the special condition or make specific findings to justify the special condition. 
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