UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term, 2022

Argued: November 30, 2022 Decided: May 22, 2023

Docket No. 21-2577-cr

UNITED STATES OF AMERICA,

Appellee,

— v. —

VICTOR C. KUNZ

Defendant-Appellant.

B e f o r e:

LIVINGSTON, Chief Judge, CALABRESI and LYNCH, Circuit Judges.

Defendant-Appellant Victor C. Kunz appeals from a judgment of the United States District Court for the Western District of New York (Siragusa, J.) imposing, among other things, special conditions of supervised release making Kunz’s internet and computer access contingent on his compliance with computer monitoring terms devised by the U.S. Probation Office. Kunz challenges both the court’s special conditions themselves, and the computer monitoring terms they contemplate, on procedural reasonableness, substantive reasonableness, and improper delegation grounds. Although Kunz’s appeal raises legitimate concerns, nearly all of those concerns can be resolved by construing his computer monitoring restrictions to avoid the troublesome implications that, in a few cases, an expansive reading might suggest. We therefore AFFIRM the district court’s judgment as so construed.

TIFFANY H. LEE, Assistant United States Attorney, for Trini E. Ross, United States Attorney for the Western District of New York, Buffalo, NY, for Appellee.

ANNE M. BURGER, Federal Public Defender’s Office, Western District of New York, Rochester, NY, for Defendant-Appellant.

GERARD E. LYNCH, Circuit Judge:

Defendant-Appellant Victor C. Kunz (“Kunz”), a convicted sex offender, challenges the special conditions of supervised release imposed by the district court (Charles J. Siragusa, J.) in response to Kunz’s latest in a long string of supervised release violations. He targets several facets of his court-ordered computer monitoring obligations, arguing that his restrictions are both procedurally and substantively unreasonable, and that the district court

2 impermissibly delegated its judicial authority to the U.S. Probation Office (“Probation”) by imposing them. We agree that an expansive reading of certain of Probation’s Computer and Internet Monitoring Program (“CIMP”) terms themselves, as well as the court-imposed special conditions requiring Kunz’s compliance with those terms in order to access the internet, raise a number of legitimate concerns. Nonetheless, because we believe that a sensible reading of the restrictions neutralizes the most troubling of those concerns, we AFFIRM the judgment of the district court as construed in the manner set forth below.

BACKGROUND

I. Kunz’s Past Offenses

The violation prompting the sentence at issue here is the latest in a series of supervised release violations committed by Kunz, a 44-year-old man from Pittsford, New York. In 2005, Kunz pled guilty to one count of possession of child pornography, admitting to the receipt of images containing child pornography over the internet. Later that year, he was sentenced to 71 months’ imprisonment and a life term of supervised release, subject to special conditions that included computer monitoring. He was released from prison and into supervised release in December 2009.

3 Between 2010 and 2017, Kunz was accused of several violations of his supervised release (“VOSR”), including failure to comply wit