17‐1108‐cr United States v. Ahearn 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 COURTʹS 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 ʺSUMMARY ORDERʺ). A PARTY CITING 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 17th day of April, two thousand nineteen. PRESENT: JOHN M. WALKER, JR., GUIDO CALABRESI, DENNY CHIN, Circuit Judges. --------------------------------x UNITED STATES OF AMERICA, Appellee, v. 17‐1108‐cr DAVID AHEARN, Defendant‐Appellant. ---------------------------------x FOR APPELLEE: RAJIT S. DOSANJH, Assistant United States Attorney (Lisa M. Fletcher, Assistant United States Attorney, on the brief), for Grant C. Jaquith, United States Attorney for the Northern District of New York, Syracuse, New York. FOR DEFENDANT‐APPELLANT: JAMESA J. DRAKE, Drake Law, LLC, Auburn, Maine. Appeal from the United States District Court for the Northern District of New York (McAvoy, J.). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED IN PART and VACATED IN PART, and the case is REMANDED for further proceedings consistent with this order. Defendant‐appellant David Ahearn appeals from his judgment of conviction for attempted coercion and enticement of a minor in violation of 18 U.S.C. § 2422(b), for which he was principally sentenced to 120 monthsʹ imprisonment and 15 yearsʹ supervised release. In his pro se brief, Ahearn argues that his offense conduct was beyond the intended scope of § 2242(b), and that the statute is unconstitutionally overbroad and an invalid exercise of Congressʹs Commerce Clause powers. In his counseled brief, Ahearn argues that the district court erred in imposing as a special condition of supervised release that Ahearn participate in a substance abuse treatment program. We assume the partiesʹ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. 2 Ahearn pleaded guilty on September 14, 2015, and a judgment of conviction was entered on July 20, 2016. He filed his notice of appeal pro se on April 17, 2017. Although Ahearnʹs notice of appeal is untimely, the government waives any objection to untimeliness. Under the circumstances, we exercise our discretion to hear the appeal as though it were timely filed. See United States v. Frias, 521 F.3d 229, 232 (2d Cir. 2008) (holding that Federal Rule of Appellate Procedure 4(b) is not jurisdictional). Ahearnʹs pro se arguments have been waived by his plea of guilty. ʺ[A]ppeals that call into question the governmentʹs authority to bring a prosecution or congressional ...
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