United States v. Morrison , 771 F.3d 687 ( 2014 )

FILED
United States Court of Appeals
Tenth Circuit
November 13, 2014
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
No. 13-7051
JEFFERY DEWAYNE MORRISON,
SR., a/k/a Jeffery Dewayne Morrison,
a/k/a Jeffrey Dewayne Morrison,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of Oklahoma
(D.C. No. 6:12-CR-00039-RAW-1)
Carl Folsom III, Assistant Federal Public Defender (Julia L. O’Connell, Federal
Public Defender; and Robert Ridenour, Assistant Federal Public Defender, with
him on the briefs), Eastern District of Oklahoma, Muskogee, Oklahoma, for
Defendant-Appellant.
Douglas Edward Snow, Assistant United States Attorney (Mark F. Green, United
States Attorney; and Linda A. Epperley, Assistant United States Attorney, with
him on the brief), Eastern District of Oklahoma, Muskogee, Oklahoma, for
Plaintiff-Appellee.
Before GORSUCH, SEYMOUR, and PHILLIPS, Circuit Judges.
SEYMOUR, Circuit Judge.
Jeffery Dewayne Morrison, Sr., pled guilty to one count of possession of
certain material involving the sexual exploitation of minors in violation of 18
U.S.C. §§ 2252(a)(4)(B) and (b)(2) and was sentenced to 120 months. He appeals
his sentence, arguing that it is procedurally unreasonable. He further claims the
district court erred by imposing special conditions of supervised release,
including a ban on the use of a camera and the internet. We affirm.
I
In November 2010, law enforcement agents started investigating Mr.
Morrison when he emailed files containing child pornography to an undercover
agent. In March 2011, after confirming Mr. Morrison’s identity, local law
enforcement executed a search warrant at his residence in Poteau, Oklahoma. Mr.
Morrison consented to a search of both his laptop and desktop computers and then
admitted to regularly downloading child pornography and saving it on his
computers. Through forensic analysis, the FBI subsequently discovered over
20,000 images depicting child pornography on Mr. Morrison’s computers,
including images of children between five and fourteen depicting actual
penetration of children by adults and 53 previously identified victims.
In July 2012, a grand jury in the Eastern District of Oklahoma indicted Mr.
Morrison on two counts: possession of material involving the sexual exploitation
of minors in violation of 18 U.S.C. §§ 2252(a)(4)(B) and (b)(2), and distribution
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of similar material in violation of 18 U.S.C. §§ 2252(a)(2) and (b)(1).
Mr. Morrison filed a motion for a competency hearing, and he was determined
competent to stand trial after a psychological evaluation and a hearing. He then
entered a guilty plea to count one.
The Presentence Investigative Report (PSR) calculated Mr. Morrison’s total
offense level at 30. 1 Under U.S.S.G. § 2G2.2, he received a base offense level of
18 and the following enhancements: a two-level increase pursuant to
§ 2G2.2(b)(2) for possession of material involving a prepubescent minor; a two-
level increase pursuant to § 2G2.2(b)(3)(F) for distribution of child pornography
to an undercover law enforcement agent; a four-level increase pursuant to
§ 2G2.2(b)(4) for possession of sadistic images or masochistic depictions; a two-
level increase pursuant to § 2G2.2(b)(6) for use of a computer; and a five-level
increase pursuant to § 2G2.2(b)(7)(D) for the quantity of images possessed. He
also received a three-level reduction for his plea and acceptance of responsibility
pursuant to §§ 3E1.1(a) and (b).
Based on his prior convictions, Mr. Morrison’s criminal history score
placed him in Category III, resulting in a recommended Guidelines range of 121
to 151 months. However, because the statutory maximum sentence of 120
months, 18 U.S.C. § 2252(b)(2), is less than the Guideline range, under
1
The PSR applied the 2012 edition of the United States Sentencing
Commission Guidelines Manual, and all references to the Guidelines herein refer
to the 2012 edition unless otherwise indicated.
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§ 5G1.1(a) the statutory maximum of 120 months became the Guideline term of
imprisonment.
Mr. Morrison did not object to the PSR but did file a motion for a
downward departure and/or variance based on his age, infirmity, and military
service. He also contended the child pornography Guidelines are unreasonable,
noting that federal courts, the Sentencing Commission, and the Department of
Justice (DOJ) have all expressed concerns regarding § 2G2.2. Mr. Morrison
explicitly requested the district court to remove the § 2G2.2(b)(6) two-level
enhancement for use of a computer, pointing out the DOJ recommended in a letter
to the Sentencing Commission in March 2013 that this enhancement should be
eliminated. The government opposed the motion.
At sentencing, the district court accepted the PSR as the factual basis for
the sentence and heard argument on the motion. Mr. Morrison focused on the
two-level enhancement for the use of a computer, arguing that all child
pornography is obtained through the use of a computer and therefore there is no
good penal or policy rationale supporting the enhancement. The court responded
that “there is a growing idea, but I don’t think it has morphed into a consensus
yet. And I don’t think the particular adjustment for use of a computer is so
disparate, so overly penal that I feel like it is something that needs judicial check,
yet.” Rec., vol. II at 41. The court specifically recognized its authority to depart
or vary from the sentencing range, but ultimately denied the variance. After
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counsel asked for specific clarification regarding the court’s reasons for the
denial, the court reiterated its understanding that the Guidelines are advisory but
stated that it was denying the variance because of a “combination of factors” and
because “use of the computer does facilitate distribution and the ability to have so
many photographs or images.” Id. at 67.
The court sentenced Mr. Morrison to 120 months, to be followed by five
years of supervised release. It also imposed two special conditions of supervised
release relevant to this appeal, prohibiting Mr. Morrison, without prior written
approval from his probation officer, from “possess[ing] or us[ing] a computer
with access to any on-line computer service at any location (including place of
employment)” or from “own[ing] or possess[ing] any type of camera,
photographic device and/or equipment, including video recording equipment.” Id.
at 69-70. Mr. Morrison objected only to the special condition banning his use of
a camera.
II
On appeal, Mr. Morrison first challenges his 120-month sentence as
procedurally unreasonable, arguing that the district court erred by failing to
“properly examine a policy disagreement with the child pornography guidelines.”
Aplt. Br. at 10. He further contends the court erred by applying “an overly rigid
test” and “extreme deference” to the two-level enhancement under § 2G2.2(b)(6)
for use of a computer because it was congressionally imposed and not based on
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“empirical data and national experience.” Aplt. Br. at 11-14.
We review Mr. Morrison’s sentence for reasonableness, applying a
deferential “abuse-of-discretion standard of review.” Gall v. United States, 552
U.S. 38, 46 (2007). “Reasonableness has a procedural and substantive
component.” United States v. Lopez-Macias, 661 F.3d 485, 489 (10th Cir. 2011)
(internal quotation marks omitted). Procedural errors include “failing to calculate
(or improperly calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on
clearly erroneous facts, or failing to explain the chosen sentence.” Gall, 552 U.S.
at 51. Assuming “the district court’s sentencing decision is procedurally sound,”
a court “should then consider the substantive reasonableness of the sentence,”
taking “into account the totality of circumstances” and “the extent of any variance
from the Guidelines range.” Id. Moreover, where, as here, the “sentence is
within the Guidelines range,” we may “apply a presumption of reasonableness.”
Id.
Mr. Morrison relies primarily on Kimbrough v. United States, 552 U.S. 85
(2007), and United States v. Henderson, 649 F.3d 955 (9th Cir. 2011), claiming
the district court erred because it could have disregarded the Guidelines but
instead applied “an undue level of deference upon sentencing enhancements that
had not been empirically derived by the Sentencing Commission.” Aplt. Br. at
13.
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In Kimbrough, 552 U.S. at 91, the Supreme Court focused its discussion
primarily on whether district courts have authority to consider the disparity
between the Sentencing Guidelines’ treatment of crack and powder cocaine
offenses when deciding a sentence. The Court emphasized the importance of the
Sentencing Commission, explaining “[i]t has the capacity courts lack to base its
determinations on empirical data and national experience, guided by a
professional staff with appropriate expertise.” Id. at 108-09 (internal quotation
marks omitted). The Court held that although the Guidelines usually “reflect of
rough approximation of sentences that might achieve § 3553(a)’s objectives,”
sentencing courts may vary from the crack cocaine Guidelines because “those
Guidelines do not exemplify the Commission’s exercise of its characteristic
institutional role.” Id. at 109. This is so because the Commission “did not take
account of empirical data and national experience” when it formulated the
Guideline ranges for crack cocaine offenses, but instead it based the Guideline on
the mandatory minimum sentence for crack cocaine set by Congress. Id. (internal
quotation marks omitted). Accordingly, “it would not be an abuse of discretion
for a district court to conclude when sentencing a particular defendant that the
crack/powder disparity yields a sentence ‘greater than necessary’ to achieve §
3553(a)’s purposes, even in a mine-run case.” Id. at 110. More specifically, the
Court expressed approval of the district court’s downward departure of 4.5 years
because the court “properly homed in on the particular circumstances of
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Kimbrough’s case and accorded weight to the Sentencing Commission’s
consistent and emphatic position that the crack/powder disparity is at odds with §
3553(a).” Id. at 111.
In United States v. Spears, 555 U.S. 261, 264 (2009), the Court reiterated
that “with respect to the crack cocaine Guidelines, a categorical disagreement
with and variance from the Guidelines is not suspect.” It noted “[t]hat was indeed
the point of Kimbrough: a recognition of district courts’ authority to vary from
the crack cocaine Guidelines based on policy disagreement with them, and not
simply based on an individualized determination that they yield an excessive
sentence in a particular case.” Id. Significantly, the Court did not hold in
Kimbrough or Spears that a district court must deviate from a properly calculated
Guideline range in the face of policy opposition from the Sentencing
Commission, but only that it may deviate.
The Ninth Circuit held in Henderson, 649 F.3d at 963, “that similar to the
crack cocaine Guidelines, district courts may vary from the child pornography
Guidelines, § 2G2.2, based on policy disagreement with them, and not simply
based on an individualized determination that they yield an excessive sentence in
a particular case.” But the court emphasized that “district courts are not
obligated to vary from the child pornography Guidelines on policy grounds if they
do not have, in fact, a policy disagreement with them.” Henderson, 649 F.3d at
964 (emphasis added); see also United States v. Grober, 624 F.3d 592, 609 (3d
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Cir. 2010) (“[I]f a district court does not in fact have a policy disagreement with
§ 2G2.2, it is not obligated to vary on this basis.”).
The district court thus had broad discretion to disregard the policy
argument Mr. Morrison advanced at sentencing. Mr. Morrison provides no
authority for his assertion that the court erred by applying “extreme deference” to
a properly calculated sentence under the Guidelines. The court considered Mr.
Morrison’s policy objections at sentencing, and although brief, the court gave a
sufficient explanation for rejecting them. See Rita v. United States, 551 U.S. 338,
356-57 (2007) (noting sentencing judge must state his or her reasons for a
sentence but the “appropriateness of brevity or length . . . depends upon
circumstances”). Moreover, the court offered a thorough explanation for why it
believed the 120-month sentence was reasonable in light of all of the objectives
set forth in 18 U.S.C. § 3553(a). Thus, we cannot say the 120-month sentence is
procedurally unreasonable.
III
Mr. Morrison also challenges the special conditions of supervised release
imposed by the district court banning his use of a computer and a camera unless
he obtains prior permission from his parole officer. 2
2
Mr. Morrison challenges the constitutionality of the special conditions,
contending that the delegation of authority to the probation officer to determine
when and under what circumstances he might be able to use a computer or camera
violates Article III and is an impermissible delegation of judicial power. But Mr.
Morrison did not raise this argument below and failed to develop it in his opening
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Pursuant to 18 U.S.C. § 3583(d), “[d]istrict courts have broad discretion to
prescribe conditions on supervised release.” United States v. Wayne, 591 F.3d
1326, 1331 (10th Cir. 2010). Section 3583(d), when read in conjunction with 18
U.S.C. § 3553(a), provides that a court may order special conditions of supervised
release as long as the conditions are “reasonably related” to “the nature and
circumstances of the offense and the history and characteristics of the defendant,”
and the need “to afford adequate deterrence to criminal conduct,” “to protect the
public from further crimes of the defendant,” and “to provide the defendant with
needed educational or vocational training, medical care, or other correctional
treatment in the most effective manner.” In addition, a special condition of
supervised release must involve “no greater deprivation of liberty than is
reasonably necessary for” deterring criminal activity, protecting the public, and
promoting a defendant’s rehabilitation. See § 3583(d)(2); §§ 3553(a)(2)(B)-(D);
see also Wayne, 591 F.3d at 1332. Finally, special conditions of supervised
release must be “consistent with any pertinent policy statements issued by the
Sentencing Commission.” § 3583(d)(2)(3).
A. Special Condition Three: Internet Ban
Mr. Morrison acknowledges he did not object to this special condition of
brief. The argument is therefore not properly before us, and we decline to address
it. See United States v. Denogean, 79 F.3d 1010, 1012 (10th Cir. 1996) (“The
general rule is that we do not consider arguments raised for the first time on
appeal.”); State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 984 n.7 (10th Cir.
1994) (noting issues not addressed in opening brief are deemed waived).
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supervised release at sentencing, asserting that our standard of review is therefore
plain error. United States v. Rosales-Miranda, 755 F.3d 1253, 1257 (10th Cir.
2014) (noting forfeiture “triggers plain-error review”). The government contends
we should not review this issue even for plain error because, it asserts, Mr.
Morrison invited the alleged error by arguing that a ban on the use of a computer
would justify the court giving him a lesser sentence. We are not persuaded Mr.
Morrison’s argument invited the error he alleges here.
“The invited-error doctrine prevents a party who induces an erroneous
ruling from being able to have it set aside on appeal.” United States v. DeBerry,
430 F.3d 1294, 1302 (10th Cir. 2005) (internal quotation marks omitted). In
DeBerry, we explained:
[T]he doctrine of invited error is based on reliance interests similar
to those that support the doctrines of equitable and promissory
estoppel. Having induced the court to rely on a particular erroneous
proposition of law or fact, a party may not at a later state use the
error to set aside the immediate consequences of the error.
Id. (internal quotation marks and ellipses omitted).
In support of his motion for a variance and/or a departure at the beginning
of the sentencing hearing, Mr. Morrison argued that imposing a ban on computers
as a special condition for supervised release would justify a reduced sentence. He
asserted:
There is no apparent prior conviction or behavior related to either sex
crimes or child molestation at all. If you are wanting to ensure the
protection of the public . . . what is the best way to do it . . . you are
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going to impose rules when we are done with this for supervised
release and you will impose rules that say no computers, no internet
access, no means of photography, no cameras. Those are rules
which will serve to deter . . . We have probation officers that can
make sure there is no computer in that house. And if my crime is
using a computer to get kiddy porn, then what better thing to do than
to make sure you can’t have a computer. . . . Why is the guideline
sentence not appropriate in this situation? It is because reasonable
rules can be imposed for supervised release that will protect the
public . . . – any more time, if it is not tied to a legitimate purpose, is
just punishment for punishment sake.
Rec., vol. II at 45-46 (emphasis added). But counsel for Mr. Morrison was
merely recognizing that the district court was already planning to impose a ban on
internet use (which counsel knew from prior experience) and contending that a
lesser sentence was therefore warranted because the computer ban would serve to
deter Mr. Morrison and protect the public from future child pornography crimes.
Counsel’s argument thus did not induce the district court to do anything it would
not otherwise have done. Accordingly, this does not appear to be a situation in
which counsel invited what he now claims was error.
Nonetheless, the sequence of events at sentencing shows that Mr. Morrison
waived this issue. United States v. Carrasco-Salazar, 494 F.3d 1270, 1272-73
(10th Cir. 2007) (noting “an abandoned objection is waived”). At the end of the
sentencing hearing, when the district court imposed the sentence and conditions
of supervised release, the court stated: “I know regarding the conditions of
supervised release that there are some of those that [Mr. Morrison’s counsel] will
express concerns and objections to, specifically regarding the use of phones or
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computers.” Rec., vol. II at 74 (emphasis added). Immediately thereafter,
counsel objected to the special condition banning the use of a camera but he made
no objection to special condition three banning the use of a computer.
It is apparent that Mr. Morrison did not merely forget to object to this
condition of supervised release. Rather, he deliberately thought about the
argument, used it to argue in favor of a lesser sentence, and then chose not to
object to it at the end of sentencing even after the court stated it believed Mr.
Morrison would object. Although forfeiture, “the failure to make the timely
assertion of a right,” may be reviewed on appeal for plain error, “waiver is the
intentional relinquishment or abandonment of a known right.” United States v.
Olano, 507 U.S. 725, 733 (1993) (internal quotation marks omitted). We have
previously said that “[t]here can be no clearer intentional relinquishment or
abandonment of a known right than when the court brings the defendant’s prior
objection to his attention, asks whether it has been resolved, and the defendant
affirmatively indicates that it has.” Carrasco-Salazar, 494 F.3d at 1273 (internal
quotation marks and citation omitted); cf. United States v. Cruz-Rodriguez, 570
F.3d 1179, 1185 (10th Cir. 2009) (“[Defendant’s] intentional litigation conduct
. . . [was] tantamount to the classic waiver situation where a party actually
identified the issue, deliberately considered it, and then affirmatively acted in a
manner that abandoned any claim on the issue.”) (quotation marks and citation
omitted). Similarly, we conclude that Mr. Morrison’s failure to object after the
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district court brought the specific objection to his attention amounted to an
intentional abandonment of the issue. 3
B. Special Condition 4: Camera Ban
Mr. Morrison objected to this condition at sentencing. He argued, as he
does on appeal, that the ban on the use of a camera is not reasonably related to his
offense conduct, criminal history, or his characteristics. “When the defendant
objects to a special condition of supervised release at the time it is announced,
this Court reviews for abuse of discretion.” United States v. Mike, 632 F.3d 686,
691 (10th Cir. 2011).
We are not persuaded the district court abused its discretion in imposing
the camera ban. While it is true that Mr. Morrison did not use a camera in
committing his offense, the Fifth Circuit upheld an almost identical condition of
supervised release in United States v. Miller, 665 F.3d 114, 134 (5th Cir. 2011),
even though the defendant had not used a camera in committing a child
pornography offense. In United States v. Blinkinsop, 606 F.3d 1110, 1122-23 (9th
Cir. 2010), the Ninth Circuit upheld a special condition of supervised release
banning possession of “camera phones or other electronic devices that could be
3
Even if we were to consider the objection as forfeited, we see no error,
plain or otherwise. The Sentencing Guidelines recommend that courts impose
this special condition of supervised release in these circumstances. U.S.S.G. §
5D1.3(d)(7)(B). We upheld an identical special condition of supervised release
under plain-error review in United States v. Walser, 275 F.3d 981, 987-88 (10th
Cir. 2001).
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used for covert photography” despite the fact that a camera played no role in the
defendant’s conviction for receiving child pornography. The court reasoned that
“[t]he large number of images stored on Blinkinsop’s computer and storage
equipment make it reasonable to anticipate that, even if he has not engaged in
covert photography yet, he might do so in the future.” Id. at 1123. It concluded
accordingly that “the minor incursion on Blinkinsop’s liberty by this condition is
not greater than is reasonably necessary to protect the public and to promote
Blinkinsop’s rehabilitation.” Id. See also United States v. Ristine, 335 F.3d 692,
696 (8th Cir. 2003) (upholding camera ban even though no evidence the
defendant used a camera in committing the offense). Here, the fact that Mr.
Morrison possessed over 20,000 images of child pornography makes it reasonable
to believe that he might use a camera in the future for such purposes.
Mr. Morrison contends the “outright prohibition of the ownership of a
camera involves a greater deprivation of liberty than is reasonably necessary” to
achieve the goals of supervised release. Aplt. Br. at 20. Significantly, however,
this special condition does not completely ban Mr. Morrison from using a camera
because he may do so with permission from his probation officer. See United
States v. Koch, 625 F.3d 470, 481 (8th Cir. 2010) (upholding identical ban on use
of camera and explaining defendant was “not completely barred from possessing a
camera . . . , for he may apply to the probation office for exceptions when
needed”); United States v. Fields, 324 F.3d 1025, 1026-27 (8th Cir. 2003)
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(finding conditions banning internet use and “using computers as photographic
equipment” subject to permission of probation officer not “greater deprivation of
liberty than is reasonably necessary”).
We recognized in Walser, 275 F.3d at 988, that a special condition banning
internet use subject to approval of the probation office accomplished the “goal” of
restricting internet use while “delicately balance[ing] the protection of the public
with the goals of sentencing.” Similarly, in Miller, 665 F.3d at 133-34, the court
assumed “the Probation Office will reasonably exercise its discretion by
permitting [the defendant] to use the Internet when, and to the extent, the
prohibition no longer serves the purposes of supervised release.” Here, the
district court responded to Mr. Morrison’s objection by stating that “the court will
in this case and other cases continue to make the admonition and recommendation
to the U.S. Probation Office to alleviate the concerns or problems caused by that
condition.” Rec., vol. II at 75. We are satisfied that a ban on cameras subject to
the probation officer’s permission is not a greater deprivation of Mr. Morrison’s
liberty than necessary.
A sentencing court has broad discretion in fashioning special conditions of
supervised release. Mike, 632 F.3d at 692; Wayne, 591 F.3d at 1331. Given the
deferential abuse of discretion standard, we cannot say the district court abused
its discretion in banning Mr. Morrison’s use of a camera without the approval of
his probation officer.
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IV
In sum, we AFFIRM the district court’s decision to deny Mr. Morrison’s
motion for a departure and/or variance and to impose special conditions of
supervised release banning Mr. Morrison’s use of the internet or a camera without
approval of the probation officer.
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