JON O. NEWMAN, Circuit Judge.
This opinion concerns only a challenge to a condition of supervised release included as part of the sentence of ten years and
Prior to the entry of a guilty plea on the third day of trial, the Government presented overwhelming evidence that Sofsky had received on his home computer via the Internet more than 1,000 images of child pornography in the form of both still and moving pictures. Some of the images had been transferred to CD-ROM disks. Sofsky had also used the Internet to exchange images of child pornography with other (apparently like-minded) individuals at their computers. There was no claim that Sofsky had ever produced any of the images he received or exchanged with others.
At sentencing, Judge Ross, following the recommendation of the presentence report ("PSR"), determined that the adjusted offense level under the Sentencing Guidelines was 32.
Plain error. Because Sofsky did not object at sentencing to the imposition of the conditions of supervised release, the Government initially contends that his challenge to the third condition should be reviewed under the plain error standard set forth in Fed.R.Crim.P. 52(b). See Jones v. United States, 527 U.S. 373, 389, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999); Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997); United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).
In the pending appeal, the challenged condition of supervised release was not recommended in the PSR, and Sofsky had no prior knowledge that it would be imposed. Both because the alleged error relates only to sentencing and because Sofsky lacked prior notice, we will entertain his challenge without insisting on strict
The merits. A sentencing court may order a special condition of supervised release that is "reasonably related" to several of the statutory factors governing the selection of sentences, "involves no greater deprivation of liberty than is reasonably necessary" for several statutory purposes of sentencing, and is consistent with Sentencing Commission policy statements. 18 U.S.C. § 3583(d). Although the discretion thus conferred is broad, we have cautioned that we will "carefully scrutinize unusual and severe conditions." United States v. Doe, 79 F.3d 1309, 1319 (2d Cir.1996) (internal quotation marks omitted).
We previously considered a sentencing component that prohibited access to a computer or the Internet in United States v. Peterson, 248 F.3d 79, 82-84 (2d Cir.2001). The restriction was imposed as a condition of probation for a defendant convicted of larceny because of the defendant's prior state conviction for incest and his accessing of adult pornography on his home computer. Noting that "[c]omputers and Internet access have become virtually indispensable in the modern world of communications and information gathering," id. at 83, we ruled the condition unreasonable. Appellate courts considering a similar restriction imposed upon defendants convicted of child pornography offenses have reached different conclusions. Compare United States v. White, 244 F.3d 1199, 1205-07 (10th Cir.2001) (invalidating and requiring modification of restriction imposed on defendant who used Internet to receive child pornography), with United States v. Paul, 274 F.3d 155, 169 (5th Cir.2001) (upholding restriction imposed on defendant who produced child pornography and used Internet to distribute it), and United States v. Crandon, 173 F.3d 122, 127-28 (3d Cir.1999) (upholding restriction imposed on defendant who used Internet to contact 14-year-old girl with whom he had sexual relations and photographed such conduct).
We appreciate the Government's point that permitting Sofsky access to a computer and the Internet after serving his ten-year sentence can facilitate continuation of his electronic receipt of child pornography, but we are more persuaded by the observation in Peterson that "[a]lthough 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." Peterson, 248 F.3d at 83. The same could be said of a prohibition on the use of the mails imposed on a defendant convicted of mail fraud. A total ban on Internet access prevents use of e-mail, an increasingly widely used form of communication and, as the Tenth Circuit noted, prevents other common-place computer uses such as "do[ing] any research, get[ting] a weather forecast, or read[ing] a newspaper online." White, 244 F.3d at 1206. Although the condition prohibiting Sofsky from accessing a computer or the Internet without his probation officer's approval is reasonably related to the purposes of his sentencing, in light of the nature of his offense, we hold that the condition inflicts a greater deprivation on Sofsky's liberty than is reasonably necessary.
The Government contended at oral argument that the restriction must be broad because a restriction limited to accessing pornography would be extremely difficult for the probation officer to enforce without constant monitoring of Sofsky's use of his computer. There are several responses. 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
For all the above reasons, the condition of supervised release prohibiting all computer and Internet access is vacated, and the case is remanded for entry of a more restricted condition.
We note that the base offense level of 17, appropriate for receiving child pornography, prescribes a sentencing range of 24 to 30 months and that the base offense level for producing child pornography, 27, U.S.S.G. § 2G2.1(a), prescribes a sentencing range of 70 to 87 months. Sofsky's sentencing range of 121 to 151 months, prescribed for his adjusted offense level of 32, reflects a phenomenon of the Guidelines whereby individual adjustments call for somewhat modest increments of punishment when only one or two are added, but result in substantial increments of punishment when several are aggregated together. For example, had Sofsky's 2 level enhancement for using a computer been the only enhancement, the minimum of his sentencing range would have increased by one-half a year, from 24 months to 30 months. However, once Sofsky's other adjustments raised his offense level to 30, the effect of the 2 level increase for using a computer was that the minimum of his sentencing range increased by two years, from 97 to 121 months.