United States v. Richard Wilkinson , 282 F. App'x 750 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
June 19, 2008
No. 07-14962 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00068-CR-3-MCR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD WILKINSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(June 19, 2008)
Before CARNES, BARKETT and HULL, Circuit Judges.
PER CURIAM:
After pleading guilty, Richard Wilkinson appeals his sentence for
transporting and shipping child pornography, in violation of 18 U.S.C.
§ 2252A(a)(1) and (b)(1). Specifically, Wilkinson argues that the special condition
of supervised release that Wilkinson “not possess or have under [his] control any
pornographic, sexually oriented or sexually stimulat[ing] material” or “patronize
any establishment where such material or entertainment is available” is vague,
overbroad, and unduly restrictive in violation of his First Amendment and due
process rights. Because Wilkinson has not established plain error, we affirm.1
I. BACKGROUND
Wilkinson pled guilty to knowingly transporting and shipping child
pornography in interstate or foreign commerce by means of a computer, in
violation of 18 U.S.C. § 2252A(a)(1) and (b)(1).2
According to the Presentence Investigation Report (“PSI”), a Federal Bureau
of Investigation (“FBI”) special agent, as part of an undercover initiative targeting
the transmission of child pornography, logged on to the LimeWire peer-to-peer
file-sharing network and used a search term associated with a known series of
photographs depicting child pornography. The search results led to an Internet
1
Because Wilkinson failed to object to the terms of supervised release in the district
court, despite being given the opportunity to do so, we review for plain error. United States v.
Zinn, 321 F.3d 1084, 1087-88 (11th Cir. 2003).
2
Wilkinson also was charged with possession of child pornography, in violation of
§ 2252A(a)(5)(B) and (b)(2). This charge was dismissed by the government pursuant to the plea
agreement.
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Protocol (“IP”) address from which the agent was able to download three images
containing child pornography labeled “illegal preteen,” “rape,” and “preteen
underage lolita kiddy child incest.” The FBI agent determined that the IP address
was registered to Wilkinson. In executing a search warrant, FBI agents seized
various items from Wilkinson’s residence, including DVDs and two computers.
Several of the DVDs contained Japanese animated pornography and another DVD
depicted a young teenager being raped by an adult. Wilkinson’s computer
contained 1 child pornography movie and 794 child pornography images. The
images primarily were of young girls under the age of 12. Ten to twenty of the
images depicted children in bondage, and several depicted toddlers.
At sentencing, the district court adopted the PSI’s findings and calculations
of an adjusted offense level of 34 and a criminal history category of I, which
resulted in an advisory guidelines range of 151 to 188 months’ imprisonment. The
district court sentenced Wilkinson to 160 months’ imprisonment and 10 years’
supervised release. In addition to the standard conditions of supervision, the
district court imposed thirteen additional conditions. One of the additional
supervised release conditions, referred to herein as “Special Condition 7,” provided
that:
You shall not possess or have under your control any pornographic,
sexually oriented or sexually stimulat[ing] material, including,
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auditory, telephonic or electronic media. You shall also not patronize
any establishment where such material or entertainment is available.
Wilkinson’s counsel did not object to Special Condition 7 at sentencing.
Wilkinson’s counsel stated that “there was so much information” in the supervised
release conditions that the district court had announced and that the district court
should have given Wilkinson advance notice that it was going to impose all of the
conditions that it did. The district court responded, “That’s what was
recommended by the probation office.”3 Wilkinson’s counsel then made oral
objections to the supervised release condition restricting Wilkinson’s internet
access and to the district court’s sentence in the middle of the guidelines range, but
not to Special Condition 7. On October 3, 2007, the district court entered a final
judgment.
Subsequently, on October 17, 2007, Wilkinson filed a motion to modify the
conditions of his supervised release, pursuant to 18 U.S.C. § 3583(e)(2), which,
inter alia, challenged Special Condition 7. On October 18, 2007, Wilkinson filed a
notice of appeal of the district court’s October 3, 2007 judgment. On November 1,
2007, the district court denied Wilkinson’s § 3583(e)(2) motion as to Special
3
The probation officer’s sentencing recommendation includes the additional supervised
release conditions. However, pursuant to local rules in the Northern District of Florida, a
probation officer’s sentencing recommendation is disclosed only to the sentencing judge. N.D.
Fla. Loc. R. 88.1(B).
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Condition 7.
II. DISCUSSION
A. November 1, 2007 Order Denying § 3583 Motion
As an initial matter, we lack jurisdiction to review the district court’s
November 1, 2007 order denying in part Wilkinson’s § 3583(e)(2) motion. Federal
Rule of Appellate Procedure 4(b)(1)(A) requires a notice of appeal to be filed
within ten days after the entry of the order being appealed. Fed. R. App. P.
4(b)(1)(A). “The timely filing of a notice of appeal is a mandatory prerequisite to
the exercise of appellate jurisdiction.” United States v. Grant, 256 F.3d 1146, 1150
(11th Cir. 2001) (quotation marks omitted). Here, Wilkinson filed his notice of
appeal on October 18, 2007, which was after the district court entered its October
3, 2007 judgment, but before its November 1, 2007 order ruling on Wilkinson’s §
3583(e)(2) motion.
Wilkinson never amended his October 18 notice of appeal to include the
district court’s November 1 order. Although an amended notice of appeal is not
required to appeal the disposition of some post-judgment motions, a § 3583(e)(2)
motion to modify the terms of supervised release is not one of the listed exceptions
to this rule. See Fed. R. App. P. 4(b)(3)(C). Because Wilkinson never amended
his October 18 notice of appeal, we lack jurisdiction to review the district court’s
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November 1 order. Wilkinson’s notice of appeal was timely as to the district
court’s October 3, 2007 final judgment, so we have jurisdiction to review the
underlying sentence imposing the special condition of supervised release.
B. Sentence
“[T]he district court may impose any condition of supervised release it
deems appropriate so long as it comports with the factors enumerated in [18
U.S.C.] § 3553(a).” United States v. Zinn, 321 F.3d 1084, 1089 (11th Cir.
2003) (citing 18 U.S.C. § 3583(d)). The district court may impose any conditions
of supervised release that are “reasonably related” to the § 3553(a) factors, so long
as the conditions “involve no greater deprivation of liberty than is reasonably
necessary for the purposes set forth [in § 3553(a)] and are consistent with any
pertinent policy statements issued by the Sentencing Commission.” U.S.S.G. §
5D1.3(b); Zinn, 321 F.3d at 1089. “[W]hile the Sentencing Guidelines recognize
that a condition of supervised release should not unduly restrict a defendant’s
liberty, a condition is not invalid simply because it affects a probationer’s ability to
exercise constitutionally protected rights.” Zinn, 321 F.3d at 1089. “Conditions of
supervised release are not vague and overbroad when they are ‘undeniably related’
to the sentencing factors.” United States v. Nash, 438 F.3d 1302, 1307 (11th Cir.
2006).
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On appeal, Wilkinson asserts that the term “pornography” in Special
Condition 7 is vague, overbroad, and unduly restrictive in violation of his First
Amendment and due process rights. However, Wilkinson failed to object to
Special Condition 7 on these grounds at the sentencing hearing when given the
opportunity to do so.4 Thus, we review Wilkinson’s challenge to his underlying
sentence for plain error.5
Even assuming arguendo that the district court erred in imposing Special
Condition 7, Wilkinson has failed to show such an error was plain. Neither the
Supreme Court nor this Court has addressed whether the term “pornography” used
in Special Condition 7 is unconstitutionally vague or overbroad or violates a
defendant’s First Amendment rights. Other circuits have split on the issue of
whether the terms used in Special Condition 7 are constitutional. Compare United
States v. Antelope, 395 F.3d 1128, 1141-1142 (9th Cir. 2005) (concluding that
supervised release condition restricting possession of “any pornographic, sexually
oriented or sexually stimulating materials” was unconstitutionally vague), and
4
Although Wilkinson later raised these arguments in his § 3583(e)(2) motion, as
explained above, we lack jurisdiction to review the district court’s order addressing these
arguments because Wilkinson never amended his notice of appeal to include the district court’s
November 1 order.
5
“We have discretion to correct an error under the plain error standard where (1) an error
occurred, (2) the error was plain, (3) the error affected substantial rights, and (4) the error
seriously affects the fairness, integrity or public reputation of judicial proceedings.” United
States v. Duncan, 400 F.3d 1297, 1301 (11th Cir. 2005).
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United States v. Loy, 237 F.3d 251, 263-67 (3d Cir. 2001) (concluding that
supervised release condition restricting possession of “all forms of pornography,
including legal adult pornography” was unconstitutionally vague and overbroad),
with United States v. Boston, 494 F.3d 660, 667-68 (8th Cir. 2007) (concluding
that supervised release condition that defendant could not “view or possess any
form of pornography, sexually stimulating or sexually oriented material” or “enter
any location where pornography or erotica are the primary products for purchase or
viewing” was not unconstitutionally overbroad),6 and United States v. Phipps, 319
F.3d 177, 192-93 (5th Cir. 2003) (concluding, under plain error review, that
supervised release condition restricting possession of “sexually oriented or
sexually stimulating materials” and “patroniz[ing] any place where such material
or entertainment is available” was not unconstitutionally vague (alteration in
original)), and United States v. Bee, 162 F.3d 1232, 1234-1235 (9th Cir. 1998)
(concluding that supervised release condition restricting possession of “any
sexually stimulating or sexually oriented material” or “patroniz[ing] any place
where such material or entertainment is available” did not violate the First
6
See also United States v. Ristine, 335 F.3d 692, 694-95 (8th Cir. 2003) (rejecting
challenge that supervised release condition restricting the defendant from owning or possessing
“any pornographic materials,” using “any form of pornography or erotica,” or entering “any
establishment where pornography or erotica can be obtained or viewed” was vague and
overbroad under plain error review because, in light of the split in the circuits, the current law
was unsettled).
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Amendment).
Because neither the Supreme Court nor this Court has addressed the issues
raised by Wilkinson on appeal and other circuits differ in their holdings, Wilkinson
has failed to show that the district court committed plain error by imposing Special
Condition 7 as a term of his supervised release. See United States v. Aguillard,
217 F.3d 1319, 1321 (11th Cir. 2000) (“[W]here neither the Supreme Court nor
this Court has ever resolved an issue, and other circuits are split on it, there can be
no plain error in regard to that issue.”); United States v. Humphrey, 164 F.3d 585,
588 (11th Cir. 1999) (stating that an error cannot meet the “plain” requirement of
the plain error rule unless the error is “clear under current law”). Accordingly, we
affirm Wilkinson’s sentence.
AFFIRMED.
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