United States v. Allen , 612 F. App'x 903 ( 2015 )

FILED
United States Court of Appeals
Tenth Circuit
May 15, 2015
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 14-2201
GEORGE ALLEN, (D.C. No. 2:09-CR-01609-ERW-1)
(D.N.M.)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before HARTZ, BALDOCK, and TYMKOVICH, Circuit Judges. **
In June 2009, Defendant George Allen plead guilty to possession of child
pornography in violation of 18 U.S.C. § 2252(a)(4)(B). A search of Defendant’s
home computer in Las Cruces, New Mexico had revealed several videos of child
pornography, including videos of children as young as four years old being sexually
abused by an adult male. The district court sentenced Defendant to 57-months
imprisonment to be followed by a five-year term of supervised release.
*
This order and judgment is not binding precedent except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however,
for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
**
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Defendant completed his term of imprisonment and began serving his term of
supervised release in January 2014. A condition of Defendant’s release prohibited
him from possessing any materials depicting or describing sexually explicit conduct,
including child pornography. In July 2014, the Government filed a petition to revoke
Defendant’s supervised release based on his possession of adult pornography.
Following a hearing, the district court found Defendant had violated a condition of
his supervised release. The court sentenced Defendant to an additional six-months
imprisonment, this time to be followed by a ten-year term of supervised release.
Defendant appeals. Our jurisdiction arises under 18 U.S.C. § 3742(a).
On appeal, Defendant does not challenge the facts leading to the revocation
of his supervised release. Rather, Defendant contends the court did not adequately
set forth reasons on the record justifying its imposition of a ten-year term of
supervised release. Defendant further contends the court abused its discretion in
imposing a special condition of supervised release similar to the one he was found
to have violated. Rejecting both contentions, we summarily affirm.
I.
Because Defendant did not object to the district court’s imposition of a ten-
year term of supervised release at sentencing, our review of that term is for plain
error. We first ask whether error occurred at all. See United States v. Edwards, 782
F.3d 554, 562 (10th Cir. 2015). Because no error occurred, our inquiry there ends.
2
At the revocation hearing, the court found:
After evaluating the [18 U.S.C. § 3553(a)] factors, the court finds the
Defendant has violated the conditions of his supervision by possessing
. . . materials depicting adult pornography.
Furthermore, the Defendant possessed journals containing information
about concealing illegal online activities.
The journals also include lists of pornographic movies, web sites, and
file names of suspected child pornography.
The information contained in the journals reflect the Defendant was not
focused on rehabilitation or treatment, but on hiding his activities and
continuing to seek out pornographic material.
Additionally, the journals contain statements written by Defendant
which indicates he believes there’s nothing wrong with having sex with
children.
The Defendant did not display victim empathy during the course of his
sex offender treatment.
The Defendant’s . . . intentions, as indicated in his journals, coupled
with his lack of victim empathy, reveal he continues to present a danger
to the community.
In addition to the foregoing excerpt, the sentencing transcript considered in its
entirety reveals the district court carefully considered this matter. The court
explained that it intended to impose upon Defendant a “sentence that is sufficient but
not greater then necessary to achieve sentencing objectives of just punishment,
general deterrence, and incapacitation; but, more importantly, that, hopefully, will
instill upon him that his behavior must change.”
3
In its statement of reasons for imposing a particular sentence, the district court
should set forth enough on the record to satisfy us that it has “a reasoned basis for
exercising [its] own legal decisionmaking authority.” Rita v. United States, 551 U.S.
338, 356 (2007). We are so satisfied. The district court did not commit error, let
alone plain error, by imposing a ten-year term of supervised release upon Defendant. 1
II.
While Defendant did not object in the district court to his term of supervised
release, he did suggest, albeit equivocally, that the following special condition of his
supervised release was overbroad: “The defendant shall be prohibited from viewing
or possessing any material including photographs, images, books, writings, drawings,
videos or video games, depicting and/or describing sexually explicit conduct or child
pornography as defined in 18 U.S.C. § 2256.” The district court rejected
Defendant’s suggestion:
[I]t should be apparent the intended purpose here is to keep
pornographic material out of [Defendants] hands, keep him away from
it, keep him from searching for it. You know, if there are certain books
that are available to the children and everyone else in the world that
have depictions of . . . a sexual nature, . . . my suspicion is that
[Defendant] is not going to be put back in prison for having a library
book that might have some symbol or suggestion that [might appeal to]
a prurient interest; . . .[Defendants] days of possessing child
pornography . . . are over, and he must understand that. And if he
doesn’t, he’s just going to be back in here and the rest of his life is
going to be in and out of prison.
1
Because Defendant was originally convicted of violating 18 U.S.C. § 2252,
the maximum authorized term of supervised release was life. Id. at 3583(k).
4
District courts have considerable discretion in setting conditions of supervised
release. United States v. Hanrahan, 508 F.3d 962, 970 (10th Cir. 2007). But any
condition imposed must comport with the Constitution and satisfy the statutory
requirements set out in 18 U.S.C. § 3583(d), which references the § 3553(a) factors.
United States v. Hahn, 551 F.3d 977, 982 (10th Cir. 2008). First, a condition must
be reasonably related to (a) the nature and circumstances of the offense, (b) the
defendant’s history and characteristics, (c) the deterrence of criminal conduct, (d) the
protection of the public from further crimes of the defendant, or (e) the defendant’s
educational, vocational, medical, or other correctional needs. Second, a condition
must involve no greater deprivation of liberty than is reasonably necessary to achieve
the purpose of deterring criminal activity, protecting the public, and promoting the
defendant’s rehabilitation. Third, a condition must be consistent with any pertinent
Sentencing Commission policy statements. Finally, where a condition restricts
access to materials protected by the First Amendment, the court must balance the
§ 3553(a) factors against constitutional concerns. See United States v. Mike, 632
F.3d 686, 692 (10th Cir. 2011). 2
2
In United States v. Mike, 632 F.3d 686 (10th Cir. 2011), defendant pled
guilty to assault resulting in serious bodily injury. Because Mike had committed a
sex offense in 1997, the district court imposed the standard supervised release
conditions for sex offenders as well as numerous special conditions. Mike argued,
as Defendant does here, that a special condition of supervised release prohibiting him
from possessing sexually explicit materials was overly broad and effected a greater
denial of liberty than necessary to achieve the goals of sentencing. “Applying a
(continued...)
5
Here, the reasons for the district court’s imposition of the special condition
of supervised release to which Defendant objects are painfully apparent from the
record. In view of Defendant’s past history with, and continuing affinity for, child
pornography, the special condition has a plainly legitimate sweep—a sweep
delimited by the definition of “sexually explicit conduct” contained in 18 U.S.C.
§ 2256. See United States v. Paul, 274 F.3d 155, 167 (5th Cir. 2001) (“Sentencing
courts must inevitably use categorical terms to frame the contours of supervised
release conditions. Such categorical terms can provide adequate notice of prohibited
conduct when there is a commonsense understanding of what activities the categories
encompass.”). The facts the Government presented in support of the petition to
revoke supervision establish that Defendant has yet to acknowledge a problem with
his affinity for children and child pornography. See United States v. Wiedower, 634
F.3d 490, 497 (8th Cir. 2011) (holding the district court acted within its discretion
when it prohibited defendant from “possessing pornography or sexually explicit
material” because the record supported the conclusion that defendant had a “deeply
rooted affinity for child pornography”). Moreover, the challenged condition is
reasonably related to, and involves no greater deprivation of liberty than is
2
(...continued)
commonsense approach,” we concluded under plain error review that “[g]iven the
current state of the law, we cannot say that it is clear or obvious that the imposition
of a condition prohibiting a defendant, who has committed a sexual offense, but not
a sexual offense involving pornography, from possessing legal, adult pornography
is a greater deprivation of liberty than is reasonably necessary.” Id. at 701.
6
reasonably necessary for the purposes of, the pertinent § 3553(a) factors. In
particular, the special condition appears appropriately tailored to serve the purposes
of deterring criminal conduct, promoting Defendant’s rehabilitation, and protecting
children from exploitation.
Accordingly, the judgment of the district court is AFFIRMED.
Entered for the Court,
Bobby R. Baldock
United States Circuit Judge
7