United States v. Denise Carlson , 395 F. App'x 413 ( 2010 )

FILED
NOT FOR PUBLICATION SEP 10 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-30367
Plaintiff - Appellee, D.C. No. 4:09-cr-00015-SEH-1
v.
MEMORANDUM *
DENISE MARSH CARLSON,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted August 3, 2010
Seattle, Washington
Before: CANBY, THOMPSON and BERZON, Circuit Judges.
Denise Marsh Carlson (“Carlson”) pled guilty to receipt of child
pornography, 18 U.S.C. § 2252A(a)(2), and was sentenced to 98 months
incarceration, followed by a lifetime of supervised release. She appeals the length
of her imprisonment term as well as the length and special conditions of her
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
supervised release. We have jurisdiction under 28 U.S.C. § 1291, and we affirm in
part, vacate in part, and order a limited remand for resentencing.
Imprisonment Term
Carlson, a traveling nurse and mother of three daughters, admitted
downloading and storing hundreds of child pornography videos and images from
the Internet since 1999. The district court sentenced Carlson to 98-months
incarceration—one month more than the lowest sentence in the United States
Sentencing Guidelines range. Carlson contends that her imprisonment term is
unreasonable. We review the substantive reasonableness of a sentence for abuse of
discretion. United States v. Blinkinsop, 606 F.3d 1110, 1116 (9th Cir. 2010).
Our recent opinion in Blinkinsop makes clear that Carlson’s 98-month
sentence is substantively reasonable. 606 F.3d at 1114-18 (upholding a 97-month
sentence as reasonable for receipt of child pornography). Like Blinkinsop, Carlson
downloaded a significant amount of child pornography from the Internet, had no
prior record of sex-crime convictions, and received a sentence on the low end of
the Guidelines. Id. Moreover, where, as here, “the district judge has considered
the [18 U.S.C §] 3553(a) factors and the totality of the circumstances supports the
sentence, we have held that the sentence is substantively reasonable.” Id. (internal
quotation marks and citation omitted). We affirm Carlson’s imprisonment term.
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Supervised Release Term
Carlson contends that her lifetime term of supervised release is unreasonable
in light of her background, lack of criminal history, and low risk for recidivism.
We review the substantive reasonableness of Carlson’s supervised release term for
abuse of discretion. United States v. Autery, 555 F.3d 864, 871 (9th Cir. 2009).
We begin by noting that this case is factually similar to Blinkinsop, and that
the same judge presided over the sentencing in both cases. In Blinkinsop, however,
the district judge imposed only a 5-year term of supervised relief. In this case, the
district judge imposed a lifetime term of supervised release, but did not specifically
address why lifetime supervision was merited. We therefore vacate the lifetime
term of supervised release for the district court to reconsider on limited remand in
light of Blinkinsop and the facts of this case.
Like Blinkinsop, Carlson had no previous record of child abuse. She
voluntarily underwent a psychosexual evaluation and passed a polygraph test
regarding hands-on sexual abuse of children. The record shows strong community
support for Carlson, as numerous individuals wrote letters on her behalf and
traveled more than 400 miles to support her at the sentencing hearing.
Although Carlson downloaded more child pornography videos over a longer
period of time than did Blinkinsop, the record provides mitigating circumstances
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for Carlson’s behavior, including the fact that she was sexually abused as a child
and suffered from anxiety, depression, and obsessive compulsive disorder. The
psychiatric evaluation in the record explained that Carlson’s obsessive compulsive
disorder was similar to a hoarding disorder and contributed to the high volume of
child pornography images she accumulated. And both the psychiatric evaluation
and the psychosexual evaluation concluded that Carlson posed a low risk of
recidivism. The district judge should consider these, and other factors, in
reevaluating the term of Carlson’s supervised release.
Special Conditions of Supervised Release
Carlson contends that Special Conditions 3, 4, 5, 7 and 8 of her supervised
release are unreasonable and overbroad. Because Carlson did not object at
sentencing, our review is limited to plain error. Blinkinsop, 606 F.3d at 1118. We
reject Carlson’s challenge with respect to all the Special Conditions, except Special
Condition 4.
Special Conditions 3 and 5 restrict Carlson’s access to minors and adults
with minor children. At oral argument, Carlson contended that these conditions are
unreasonable because they create an inflexible restriction. Carlson is incorrect.
Both conditions permit access when approved by the probation office, and are
reasonable under the circumstances of this case.
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Special Condition 7, which restricts Carlson from possessing devices
capable of covert photography, is reasonable notwithstanding Carlson’s contention
that many cell phones have built-in cameras. Special Condition 7 simply does “not
impose an significant deprivation on [Carlson’s] liberty.” Blinkinsop, 606 F.3d at
1123. Like Blinkinsop, Carlson “may have a cell phone, as long as it does not
have a camera module, and [she] may have a camera, as long as it is readily
identifiable as a camera.” Id.Special Condition 8, which restricts Carlson’s access to the Internet unless
permitted by the probation office, is also valid and reasonable. See United States v.
Riley, 576 F.3d 1046, 1049, n.3 (9th Cir. 2009); cf. Blinkinsop, 606 F.3d at 1123(rejecting absolute restriction on Internet access with no option to seek permission
from the probation office).
Special Condition 4 provides that Carlson “shall not go to or loiter near
school yards, parks, playgrounds, arcades, or other places primarily used by
children under the age of 18.” Carlson contends that because she has several
young nieces and nephews, and her three adult children will likely have children of
their own, Special Condition 4’s blanket prohibition means that she will not be
able to attend their school functions or sporting events at parks. In Blinkinsop, we
vacated this condition with respect to a five-year supervised release term, noting
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that the district court should consider tailoring the restriction to allow access based
on permission from the probation office. 606 F.3d at 1119-22. We therefore
vacate Special Condition 4 for the district judge to reconsider on limited remand in
light of Blinkinsop.
To conclude, we AFFIRM in part Carlson’s sentence as to her term of
imprisonment and Special Conditions 3, 5, 7 and 8. We VACATE Carlson’s
sentence as to the term of her supervised release and Special Condition 4, and
order a LIMITED REMAND for reconsideration consistent with this disposition.
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