USA v. Robert Destefano

Filing

Per Curiam OPINION filed : DISMISSED without prejudice, decision not for publication. R. Guy Cole , Jr., Circuit Judge; John M. Rogers, Circuit Judge and Joseph M. Hood, U.S. District Judge., EDK

Case: 13-5572

Document: 006111955564

Filed: 02/04/2014

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0099n.06
No. 13-5572
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERT DESTEFANO,
Defendant-Appellant.

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FILED
Feb 04, 2014
DEBORAH S. HUNT, Clerk
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF
TENNESSEE

BEFORE: COLE and ROGERS, Circuit Judges; HOOD, District Judge.
PER CURIAM. Robert Destefano appeals the district court’s imposition of a special
condition of supervised release allowing the probation officer’s search of his computers with the
district court’s pre-approval. Because Destefano’s challenge is not ripe for review, we dismiss
his appeal without prejudice.
Destefano pleaded guilty to possessing a firearm––a sawed-off shotgun––not registered
to him in the National Firearms Registration and Transfer Record in violation of 26 U.S.C.
§§ 5841, 5861(d), and 5871. While awaiting sentencing, Destefano failed to comply with the
conditions of his pretrial release by failing to cooperate with the probation officer and preventing
that officer from performing her duties, possessing dangerous weapons, and reporting to the
probation office intoxicated. Destefano’s non-compliance resulted in his arrest and detention
pending sentencing. Based on Destefano’s conduct during pretrial supervision, the district court



The Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.

Case: 13-5572

Document: 006111955564

Filed: 02/04/2014

Page: 2

No. 13-5572
United States v. Destefano
denied his request for probation and sentenced him to thirty months of imprisonment followed by
three years of supervised release. As a result of Destefano’s conduct during pretrial supervision,
the district court imposed the following special condition of supervision:
The defendant shall submit his person, residence, office, vehicle and/or any
computer system including computer data storage media, or any electronic device
capable of storing, retrieving, and/or accessing data to which they have access or
control, to a search, from time to time, conducted by any United States Probation
Officer and such other law enforcement personnel as the probation officer may
deem advisable, without a warrant. Any search of the defendant’s computers has
to be pre-approved by order of the Court. The defendant shall warn other
residents or occupants that such premises, vehicles or electronic devices may be
subject to searches pursuant to this conditions [sic].
(Judgment 4). Destefano appeals the part of this special condition that allows the probation
officer to search his computers with the district court’s pre-approval.
The government contends that Destefano’s challenge to this special condition is not ripe
for review. We have “held that conditions of supervised release may be ripe for appellate review
immediately following their imposition at sentence.” United States v. Lee, 502 F.3d 447, 449-50
(6th Cir. 2007).

“Nonetheless, we have occasionally found a defendant’s challenge to a

supervised release condition unripe where the challenged condition was potential, rather than
mandatory.” United States v. Zobel, 696 F.3d 558, 573 (6th Cir. 2012), cert. denied, 134 S. Ct.
157 (2013); see United States v. Evers, 669 F.3d 645, 662 (6th Cir. 2012); Lee, 502 F.3d at 45051; Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580-81 (1985) (an unripe claim
involves “contingent future events that may not occur as anticipated, or indeed may not occur at
all”). As the government correctly points out, “[a] computer search is neither mandatory nor
inevitable.” Appellee’s Br. 10. The probation officer may never seek the district court’s
approval to search Destefano’s computers, and the district court, if asked, may never grant such
approval. Given that the district court may never grant approval for a search of Destefano’s

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Case: 13-5572

Document: 006111955564

Filed: 02/04/2014

Page: 3

No. 13-5572
United States v. Destefano
computers, his challenge to the special condition is based on “mere conjecture,” and not yet ripe
for review. Lee, 502 F.3d at 450.
Accordingly, we dismiss Destefano’s appeal without prejudice.

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