Juan Thompson. Photo: YouTube

A five-year prison sentence for a former journalist with the online publication The Intercept was too severe for the cyberstalking charge to which he pleaded guilty, the U.S. Court of Appeals for the Second Circuit ruled Wednesday.

The Second Circuit vacated the sentence and remanded the matter to the trial court for resentencing.

Juan Thompson was sentenced in December 2017 by U.S. District Judge P. Kevin Castel of the Southern District of New York after pleading guilty the previous June. Thompson was charged by the U.S. attorneys' office with cyberstalking, after having made bomb threats to Jewish organizations in an effort to disrupt his ex-girlfriend's life.

The district court opted for an upward departure from the advisory guidelines range of 37 to 46 months. At issue on appeal was a two-level sentencing enhancement the court applied to get to the advisory range.

In August 2016, Thompson was issued an ex parte temporary restraining order by a Brooklyn family court, in response to a petition filed by his ex-girlfriend. Though Thompson was summoned to appear in court to answer the petition twice, he was never formally served with a petition, order or corresponding summonses, according to the appellate panel.

Castel found Thompson was on notice about the order, which led to the protection-order enhancement and the guidelines range from which the district court departed.

On appeal, the panel of Circuit Judges José Cabranes and Richard Wesley noted that the U.S. Sentencing Commission enacted an amendment to its rules regarding court protection orders. As it was a clarification, rather than a substantive change, the panel afforded the benefit of the revision. Critically, the enhancement at issue only applies when factors related to a state court's jurisdiction, compliance with federal due process protections, and state notice and appearance time limits are met.

Sine the family court did not have jurisdiction over Thompson before it issued an ex parte order, it couldn't enjoin his actions until he was properly served. The government's contention that actual notice can be substituted for proper services “confuses the requirements for personal jurisdiction with those for contempt of a protection order,” the panel found.

Since the family court never had proper jurisdiction over Thompson, it was, under the new rules retroactively applied, an error by the district court, however unforeseeable, to apply the sentencing enhancement, the panel stated.

Finding that the error wasn't harmless, the case was remanded back to the district court for re-sentencing.

A spokeswoman for the U.S. attorney's office declined to comment on the panel's decision.

Thompson was represented on appeal by Federal Defenders of New York supervising attorney Edward Zas. He did not respond to a request for comment.

Circuit Judge Debra Ann Livingston was originally assigned to the panel, but recused herself from consideration of this matter. The two remaining members of the pane decided the case in accordance with the circuit's internal operating procedure.

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