U.S. Court of Appeals, Second Circuit. Photo: Bumble Dee/Shutterstock

The U.S. Court of Appeals for the Second Circuit on Friday upheld a four-year prison sentence for a Long Island man convicted of cyberstalking his ex-girlfriend at the State University of New York College in Geneseo, finding that the sentence was a "reasonable" departure above the federal guidelines.

A three-judge panel of the Manhattan-based appeals court said Thomas Traficante's prison term, followed by three years of supervised release, was well-rooted in the offense, which a federal judge at sentencing called "about as serious as they get."

Traficante pleaded guilty in 2018 to charges of cyberstalking and distribution of a controlled substance in a two-month campaign to terrorize his former girlfriend after the two broke up.

According to court documents, Traficante hacked several of the woman's online accounts, posted her contact information to a prostitution website, and shot out the windows of her parents' home with a BB gun. He also admitted to sending cocaine and MDMA to her college address and then called police to report the illegal substances. The ordeal, prosecutors said, was similar to other actions he had taken against a former high school love interest.

U.S. District Judge David G. Larimer of the Western District of New York imposed a sentence above the federal guidelines, which called for 30 to 37 months in prison, citing the "horrendous" nature of the crime and the need to deter Traficante from repeating the behavior. The judge also imposed a condition to Traficante's release that allowed his probation officer to require that he notify others about the risk he posed.

On Friday, the Second Circuit rejected Traficante's "conclusive and tepid assertion" that his sentence was unreasonable, noting that courts have upheld sentences above federal guidelines in cases involving similar misconduct. Given the offense, as well as Traficante's history, the panel held that Traficante's sentence was not "outside the range of permissible decisions available to the district court."

"In light of such cases, and given the seriousness of Traficante's conduct, including the fact that he previously engaged in similar stalking and threatening behavior, we cannot say that Traficante's sentence is 'shockingly high … or otherwise unsupportable as a matter of law,'" Judge Richard J. Sullivan wrote for the court.

The panel also rejected Traficante's argument that the so-called "notification of risk" condition warranted a limited remand of the case to the district court.

After Larimer issued the sentence, the Second Circuit decided in the case U.S. v. Boles that an identical provision was impermissibly vague and gave too much discretion to probation officers. After the Second Circuit's ruling, Larimer issued a standing order revising the condition to clarify that a probation officer "may" impose the requirement if the court determines Traficante is indeed a risk.

In Friday's ruling, Sullivan said the standing order did not impose any new conditions on Traficante and held that any vagueness challenge was not yet ripe. The court, however, remained "skeptical" of the merit of such an argument, Sullivan said.

"If the court determines that Traficante poses a specific risk and enlarges the condition by requiring him to notify a third party, he can raise any vagueness challenge at the Rule 32.1 hearing accompanying the modification," Sullivan wrote.

"But chances are that, by the time the court makes a finding that Traficante 'pose[s] a risk of committing further crimes against another person [or] organization'… the condition will no longer be vague at all," he said.

Sullivan was joined in the ruling by Judge Barrington D. Parker Jr. and U.S. District Judge Katherine Polk Failla of the Southern District of New York, who sat on the panel by designation.

Michelle Anderson Barth, a Vermont attorney who represented Traficante on appeal, did not immediately provide comment on the ruling.

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