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A man convicted of possessing child pornography cannot be barred from using a computer during his period of supervised release, the 2nd U.S. Circuit Court of Appeals has ruled. The court found that the restriction imposed by Eastern District of New York Judge Allyne Ross, while reasonably related to the crime for which Gregory Sofsky was convicted, “exceeds even the broad discretion of the sentencing judge with respect to conditions of supervised release.” The court said in United States v. Sofsky, 01-1097, that the ban on computer usage “inflicts a greater deprivation of Sofsky’s liberty than is reasonably necessary.” After three days of a trial, in which the government produced evidence that Sofsky received more than 1,000 images of child pornography on his computer and had exchanged images of children engaged in sex with other computer users, Sofsky decided to plead guilty to receiving child pornography in violation of 18 U.S.C. � 2252A(a)(2)(A). Ross sentenced Sofsky to serve a sentence of 10 years and one month, with a three-year period of supervised release that included an order stating that Sofsky may not “access a computer, the Internet, or bulletin board systems at any time, unless approved by the probation officer.” Sofsky did not object to the condition at sentencing. On appeal, the government argued that the objection should be considered forfeited and that the 2nd Circuit should only review the condition under the “plain error” standard. Senior Judge Jon O. Newman of the 2nd Circuit said that plain error review means that an “appellate court will not correct an error not raised below,” unless the error affects substantial rights. The court may then exercise its discretion to “notice the forfeited error,” he said, where the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. While the government was correct in arguing that plain error is the standard of review, Newman said, “it appears that in the sentencing context there are circumstances that permit us to relax the otherwise rigorous standards of plain error to correct sentencing errors.” In this case, Newman said that the challenged condition of supervised release was not mentioned in the presentencing report, and that Sofsky “had no prior knowledge that it would be imposed.” Turning to the merits, Newman said that, despite the broad discretion conferred on sentencing judges, “we have cautioned that we will carefully scrutinize unusual and severe conditions.” In the case of United States v. Peterson, 248 F. 3d 79 (2d Cir. 2001), the court overturned as unreasonable a prohibition on computer access for a defendant convicted of larceny — a condition imposed because of the defendant’s prior state conviction for incest and because he regularly accessed adult pornography on his home computer. In Peterson, the court said that computers “and Internet access have become virtually indispensable in the modern world of communications and information gathering.” ‘DIFFERENT CONCLUSIONS’ In Sofsky, Judge Newman acknowledged that other courts, including a 10th Circuit panel considering a similar restriction “have reached different conclusions.” “We appreciate the government’s point that permitting Sofsky access to a computer and the Internet after serving his 10-year sentence can facilitate continuation of his electronic receipt of child pornography, but we are more persuaded by the observation in Peterson that ‘although a defendant might use the telephone to commit fraud, this would not justify a condition of probation that includes an absolute bar on the use of telephones.’” The government argued that a broad restriction was necessary because it would be difficult for a probation officer to monitor a simple restriction barring Sofsky from accessing only pornography. “First, to the extent that even a broad restriction would be enforced by the probation officer, monitoring (presumably unannounced) of Sofsky would be required to check if he was using a computer at all,” Judge Newman said. “Second, a more focused restriction, limited to pornography sites and images, can be enforced by unannounced inspections of Sofsky’s premises and examination of material stored on his hard drive or removable disks.” Finally, Newman said, concern over Sofsky’s Internet usage could be addressed “with a sting operation.” Senior Judge James L. Oakes and Judge Fred I. Parker joined in the opinion. Yuanchung Lee of the Legal Aid Society Federal Defender Division represented Sofsky. Assistant U.S. Attorneys Adam H. Schuman and Peter Norling represented the government.

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