United States v. Coli , 425 F. App'x 51 ( 2011 )

09-4027-cr
United States v. Coli
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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 30th day of June, two thousand eleven.
PRESENT: ROGER J. MINER,
REENA RAGGI,
GERARD E. LYNCH,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
v. No. 09-4027-cr
PHILIP COLI,
Defendant-Appellant.
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APPEARING FOR APPELLANT: Robin C. Smith, Esq., Law Office of Robin
Smith, Brooklyn, New York.
APPEARING FOR APPELLEE: Richard Belliss (Brenda K. Sannes, of counsel),
Assistant United States Attorneys, for Richard S.
Hartunian, United States Attorney for the
Northern District of New York, Syracuse,
New York.
Appeal from a judgment of the United States District Court for the Northern District
of New York (Thomas J. McAvoy, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the district court’s September 24, 2009 judgment is AFFIRMED.
Defendant Philip Coli, who stands convicted on pleas of guilty to three counts of
attempting to transfer obscene materials to a minor, see 18 U.S.C. § 1470, appeals that part
of his sentence which prohibited him, as a condition of supervised release, from viewing,
possessing, owning, subscribing to, or purchasing any material that depicts sexually explicit
conduct by adults as defined in 18 U.S.C. § 2256(2). A sentencing court may impose
supervised release conditions that (1) reasonably relate to certain statutory factors governing
sentencing, (2) involve no greater deprivation of liberty than is reasonably necessary to
implement the statutory purposes of sentencing, and (3) are consistent with pertinent
Sentencing Commission policy statements. See United States v. Gill, 523 F.3d 107, 109 (2d
Cir. 2008). Although we generally review the district court’s imposition of a condition of
supervised release for abuse of discretion, see, e.g., id. at 108 (recognizing that “courts have
broad discretion to tailor conditions of supervised release” (internal quotation marks
omitted)), where, as here, a defendant fails to raise his challenge below, we review only for
plain error, see, e.g., United States v. Dupes, 513 F.3d 338, 342-43 (2d Cir. 2008). We
assume the parties’ familiarity with the facts and record of prior proceedings in explaining
our decision to affirm.
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At the outset, we note that Coli’s challenge to the supervision condition prohibiting
unsupervised contact with minors as interfering with his opportunity to visit his minor
children is rendered moot by the district court’s December 23, 2010 order modifying that
condition to allow such unsupervised familial contact. See United States v. Johnson, 446
F.3d 272, 276 (2d Cir. 2006). We easily reject Coli’s remaining contention that a ban on his
access to sexually explicit material depicting adults is not reasonably related to the offense
of conviction. Given Coli’s history of attempting to transmit adult pornography to minor
children, the challenged condition reasonably related to the nature and circumstances of
Coli’s offense, the need to deter criminal conduct, and the need to protect the community
from further crimes. See 18 U.S.C. § 3553(a)(1), (2)(B)-(C). Further, the challenged
condition does not impose a greater deprivation of liberty than is reasonably necessary under
the circumstances. See United States v. Carlton, 442 F.3d 802, 810 (2d Cir. 2006)
(recognizing that “conditional liberty” afforded those on supervised release may include
“prohibition against possession of pornographic matter”); see also Farrell v. Burke, 449 F.3d
470, 497 (2d Cir. 2006). To the extent we have suggested that a complete ban on possession
of adult pornography may be over broad in some circumstances, see United States v. Cabot,
325 F.3d 384, 386 (2d Cir. 2003), Coli identifies no error, let alone plain error, in the district
court’s determination that this is not such a case.
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We have considered Coli’s other arguments on appeal and conclude that they are
without merit. Accordingly, the judgment of the district court is AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
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