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Circuit Affirms Sentence Enhancement for Child Porn but Remands as to Conditions of Supervised Release

The Second Circuit (Walker, Cabranes, Sack) issued a per curiam decision in United States v. Bleau, 18-cr-1574 affirming a sentence based on a conviction for receiving and possessing child pornography, but remanding for further consideration of whether to impose a particular special condition of supervised release. 

On May 18, 2018, Bleau pled guilty under 18 U.S.C. §§ 2252A(a)(2)(A), (a)(5)(B), (b)(1), and (b)(2) and was sentenced to 78-months of imprisonment, and a 15-year term of supervised release.  On appeal, Bleau argued that the sentence of imprisonment was substantively unreasonable, and that the lower court procedurally erred in two regards.  With respect to procedural reasonableness, the defendant argued that the district court should have declined to apply a two-level reduction pursuant to § 2G2.2(b)(1)—which allows for a two-level reduction in offense level “if the defendant’s ‘conduct was limited to the receipt or solicitation of material involving the sexual exploitation of a minor’ and the defendant ‘did not intend to traffic in, or distribute such material.’”  The defendant also argued that it was error for the district court to have applied a four-level enhancement pursuant to § 2G2.2(b)(4)—which “imposes a four-level enhancement if, inter alia, the offense involved material that portrays ‘sadistic or masochistic conduct or other depictions of violence.’” 

The Second Circuit disagreed and upheld the sentence as reasonable.  It found the sentence substantively reasonable because it fell below the Sentencing Guidelines and was “just 18-months” above the mandatory minimum.  Nor was it error for the district court to consider Bleau’s social isolation, a factor pertinent to his likelihood of reoffending.  The Second Circuit also found the sentence procedurally reasonable on the ground that (1) Bleau’s conduct was “indisputably related to the transfer and distribution of child pornography” so he was not eligible for the two-level reduction under § 2G2.2(b)(1); and (2) the district court’s finding that the material of which Bleau was in possession portrayed sadistic or excessively cruel conduct because it depicted activity that would cause mental harm to a minor was not “clearly erroneous.”  In so deciding, the Second Circuit held that the four-level enhancement pursuant to § 2G2.2(b)(4) covers depictions of mental, and not just physical, cruelty.

Though the Court upheld Bleau’s sentence of imprisonment, it remanded for further consideration of a special condition of his 15-year term of supervised release—that Bleau would be prohibited from having any direct contact with minors without first obtaining permission from his probation officer.  While the Court noted that “there may be reasonable arguments to support the imposition of this special condition,” it found any indication of those reasons lacking in the record.  Accordingly, the Second Circuit remanded for the district court to articulate its reasons for imposing the special condition or to modify the sentence to eliminate that special condition.  In this regard, the Circuit continued its recent practice of monitoring closely the imposition of special conditions of supervised release to make sure that they are appropriate and grounded in the record of the case.  See United States v. Betts (alcohol ban); United States v. Washington (polygraph condition); United States v. Eaglin (internet use ban).

-By Emma Ellman-Golan and Harry Sandick