United States v. Todd Hobbs , 710 F.3d 850 ( 2013 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 12-2125
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Todd Hobbs
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the District of Nebraska - Lincoln
____________
Submitted: December 14, 2012
Filed: April 1, 2013
____________
Before LOKEN, BRIGHT, and COLLOTON, Circuit Judges.
____________
LOKEN, Circuit Judge.
Todd Hobbs pleaded guilty to possession of child pornography in violation of
18 U.S.C. § 2252(a)(4)(B). At sentencing, the district court1 granted a downward
variance and sentenced Hobbs to sixty months in prison followed by five years of
1
The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
supervised release. Hobbs appeals the sentence, arguing the district court abused its
discretion in imposing two special conditions of supervised release requiring advance
approval by his Probation Officer before he may (i) reside with or contact children
under the age of 18, including his own, or (ii) possess “any material that is sexually
stimulating or sexually oriented.” We review a district court’s imposition of special
conditions of supervised release for abuse of discretion. But we carefully scrutinize
“restrictions on important constitutional rights” and apply de novo review if such
restrictions are “sweeping.” United States v. Schaefer, 675 F.3d 1122, 1125 (8th Cir.
2012). In this case, the restrictions at issue impact constitutional rights but are not
sweeping. Upon careful review of the sentencing record, we conclude the district
court did not abuse its substantial discretion and therefore affirm.
I. Background
In April 2011, a Lincoln, Nebraska, police investigator accessed visual
depictions of minors engaged in sexually explicit conduct being shared by an IP
address assigned to Todd Hobbs in Lincoln. A warrant search of Hobbs’s residence
and examination of his computers and storage media uncovered over 20,000 images
of child pornography, including multiple videos depicting adult penetration of
prepubescent females. Hobbs admitted possessing the child pornography and stated
he had been accessing child pornography for approximately seven years. He was
charged in June 2011 with receiving and distributing child pornography in violation
of 18 U.S.C. § 2252A(a)(2), and with the less serious offence of possessing child
pornography in violation of 18 U.S.C. § 2252(a)(4)(B).
After arraignment, Hobbs was granted pretrial release on personal recognizance
subject to conditions including that he abstain from alcohol consumption and attend
treatment and counseling sessions for his pornography addiction. On January 4, 2012,
Hobbs pleaded guilty to possession of child pornography, and the government agreed
to dismiss the receiving and distributing count at sentencing. On February 14, a
-2-
pretrial services officer visited Hobbs’s home and smelled alcohol. Hobbs admitted
that his long-time girlfriend had brought home an 18-pack of beer, and that he drank
ten to twelve beers that evening and got drunk. Based on this violation, the court
revoked pretrial release and ordered Hobbs detained pending sentencing.
The Presentence Investigation Report (PSR) recommended an advisory
guidelines range of 108-135 months in prison, subject to the 120-month statutory
maximum. Three days before the April 26 sentencing, the Probation Officer filed
lengthy Sentencing Recommendations. She recommended a prison sentence at the
bottom of the advisory range, 108 months, explaining:
As noted in the presentence report, the defendant’s case is different from
the majority of child pornography cases prosecuted in the District of
Nebraska because he has prior convictions resulting in his placement in
a Criminal History Category II. . . . The defendant has been diagnosed
with alcohol dependence and his prior criminal history convictions
appear to be related to his alcohol abuse issue. Additionally, the
defendant’s pretrial release was revoked after he was caught consuming
alcohol while on bond for the instant offense. . . . Therefore, treatment
will be an essential part of Mr. Hobbs’ future. The defendant’s
possession of child pornography on his computer is very serious and
feeds a market that perpetuates the sexual abuse of children. The length
of time the defendant collected and possessed child pornography in this
case is a substantial factor as well.
The Probation Officer concluded by recommending that the court impose 21 special
conditions of supervised release, including the two here at issue, which provide in
material part:
11. The defendant shall have no contact, nor reside with children
under the age of 18, including [his] own children, unless approved in
advance by the U.S. Probation Officer in consultation with the treatment
providers. . . .
-3-
20. . . . The defendant shall not possess, view, or otherwise use
any material that is sexually stimulating or sexually oriented deemed to
be inappropriate by the U.S. Probation Officer in consultation with the
treatment provider.
At sentencing, the district court granted Hobbs’s motion for a downward
variance, in part to avoid unwarranted sentencing disparity with other District of
Nebraska child pornography offenders, and sentenced him to sixty months in prison,
followed by five years of supervised release subject to “the standard conditions
together with the special conditions outlined in the [Probation Officer’s] sentencing
recommendation.” Defense counsel timely objected to Special Condition #11: “I’d
like [the court] to say today that [Hobbs] has the ability to live with his own children.”
The court replied: “I think that that provision ought to remain. And I say that because
of the defendant’s alcoholism.” The colloquy concluded:
[DEFENSE COUNSEL]: Well, that has nothing to do, though,
Judge, with --
THE COURT: Yeah, it has everything to do with why that
provision is in there.
[DEFENSE COUNSEL]: But there’s been no showing
whatsoever that his own children have been at risk for any kind of sexual
perpetration by him. And, in fact, all the evidence is to the contrary.
THE COURT: I respectfully disagree. I think this is an
appropriate condition.
Defense counsel then objected to the portion of Special Condition #20 prohibiting
Hobbs from possessing “sexually stimulating” material that the probation office
deems to be inappropriate. The court also overruled this objection.
-4-
II. Special Condition #11
Before his pretrial detention, Hobbs lived with his partner of 17 years, their
sixteen-year-old daughter, their eleven-year-old son, and Hobbs’s seven-year-old
stepson. The two boys will still be minors when Hobbs finishes serving his prison
sentence. It is undisputed that Hobbs has a close and positive relationship with his
son, Schuyler, who has begun to exhibit behavioral issues at home and at school, and
has been a loving parent to his stepson. On appeal, Hobbs argues that, by requiring
prior approval by a probation officer before Hobbs can see and live with his own
children, Special Condition #11 exacts a greater deprivation of liberty than necessary
and interferes with his fundamental liberty interest in the relationships with his
children. Hobbs emphasizes that his conviction was for possession of child
pornography, not the more serious offense of distribution; that he has no history of
sexual abuse of minors; that a licensed clinical psychologist opined after a full
psychological assessment that the risk of Hobbs committing sexual violence or even
engaging in future “cyber pornography” is low; that his family has serious financial
issues and wants him to return home as soon as possible; and that he wants again to
be a positive influence before son Schuyler graduates from high school.
The relationship between parent and child is a liberty interest protected by the
Due Process Clause. See, e.g., Quilloin v. Walcott, 434 U.S. 246, 255 (1978). Thus,
in sex offender cases, we scrutinize more carefully conditions restricting the
defendant’s right to contact his own children than conditions restricting childless sex
offenders from contact with children. Compare United States v. Davis, 452 F.3d 991,
995 (8th Cir. 2006), with United States v. Muhlenbruch, 682 F.3d 1096, 1104 (8th Cir.
2012).
Despite the constitutional sensitivity of such restrictions, we have repeatedly
upheld conditions requiring defendants to receive permission from a probation officer
before contacting their own children. See United States v. Simons, 614 F.3d 475,
-5-
481-82 (8th Cir. 2010); United States v. Stults, 575 F.3d 834, 850-51 (8th Cir. 2009),
cert. denied, 130 S. Ct. 1309 (2010); United States v. Mark, 425 F.3d 505, 507-08
(8th Cir. 2005); United States v. Crume, 422 F.3d 728, 733-34 (8th Cir. 2005); United
States v. Vick, 421 F.3d 794, 795 (8th Cir. 2005).2 That a defendant does not have a
history of physical or sexual abuse of minors “is not necessarily determinative” of this
issue. United States v. Kerr, 472 F.3d 517, 523 (8th Cir. 2006). However, an
“individualized inquiry,” and a “particularized showing” of need for the condition, is
required in each case. United States v. Springston, 650 F.3d 1153, 1156 (8th Cir.
2011), vacated on other grounds, 132 S. Ct. 1905 (2012).
In our prior cases upholding this type of special condition, we agreed with the
district court that the restriction was reasonably necessary to protect the public, and
was not overly restrictive, because of the nature of the sex offense of conviction, or
because of the defendant’s history of sexual abuse of minors.3 If the proper focus is
solely these risk-of-future-sex-offense factors, we agree with Hobbs that the record
in this case does not reveal a “particularized need” for a restriction placing a probation
officer’s approval in the way of Hobbs reuniting with his family when his sentence
has been served. But the Probation Officer did not treat Hobbs as a typical sex
offender. Rather, she based her sentencing recommendations in part on an extensive
2
This special condition was also imposed in United States v. Deatherage, 682
F.3d 755, 762 (8th Cir. 2012), but was not challenged on appeal. In Schaefer, which
the government wrongly asserts is “strikingly similar” to this case, this aspect of the
special condition was not a factor because defendant’s children would be over the age
of 18 when he was released. 675 F.3d at 1125-26.
3
See Simons, 614 F.3d at 482 (2 prior crimes against minor victims); Stults, 575
F.3d at 839 (prior conviction for sexual assault of a child); Mark, 425 F.3d at 508
(prior “sexual exploration” of minor female family member); Crume, 422 F.3d at 734
(mother, herself a prior victim, fearful defendant would molest his daughter); Vick,
421 F.3d at 795 (condition “tailored to [defendant’s] extensive history with minors”).
See also United States v. Levering, 441 F.3d 566, 568 (8th Cir. 2006) (childless
defendant committed forcible sexual act on a minor).
-6-
history of criminal convictions resulting from Hobbs drinking to excess and being a
danger to the public when he does -- one assault, two disturbing the peace, and two
driving while intoxicated convictions -- plus his failure to abstain from alcohol while
on pretrial release. This history of alcohol abuse together with Hobbs’s longstanding
child pornography addiction led the Probation Officer to recommend not only a
guidelines range sentence, but also special conditions requiring drug and alcohol
treatment and testing4 and participation in a sex-offense-specific program, as well as
other Special Conditions including #11.
Based on this highly individualized inquiry, we conclude the district court did
not abuse its discretion in imposing recommended Special Condition #11. The
purpose of this restriction is to protect the public; “children, including those of Mr.
[Hobbs], are members of the public that the terms of supervised release seek to
protect.” Crume, 422 F.3d at 734. Hobbs has demonstrated repeatedly that he is
prone to alcohol abuse and is dangerous when he is drunk. That poses a risk to all
those who live with him. Hopefully, he will comply with conditions requiring him to
abstain from consuming alcohol and successfully participate in substance abuse and
sex-offender treatment. If he does, the probation officer “in consultation with the
treatment providers” will doubtless approve his living with his family. “If such
permission is arbitrarily or unfairly denied, [Hobbs will be] free to seek relief from the
district court under [18 U.S.C.] § 3583(e).” United States v. Mickelson, 433 F.3d
1050, 1057 (8th Cir. 2006).
We have one unanswered concern with Special Condition #11 -- its failure to
address whether the probation office must decide prior to his release from custody if
Hobbs may initially move in with his children. This seems to us a critical issue for the
4
Special Condition #3 requires Hobbs to “attend, pay for and successfully
complete any diagnostic evaluations, treatment or counseling programs, or approved
support groups (e.g., AA/NA) for alcohol and/or controlled substance abuse, as
directed by the probation officer.”
-7-
family, yet government counsel at oral argument could give no assurance that a timely
answer would be forthcoming. We considered remanding for explicit consideration
of this issue but instead conclude that it may reasonably be left to the discretion of the
probation office, subject to prompt review by the district court. In our view, on this
record, only an adverse development during incarceration would warrant prohibiting
Hobbs from again living with his family upon release, subject to revocation
proceedings should he then resume consuming alcohol or accessing sexually explicit
materials.
III. Special Condition #20
Relying primarily on Simons, 614 F.3d at 483-85, and United States v. Kelly,
625 F.3d 516, 519-22 (8th Cir. 2010), Hobbs argues that the portion of Special
Condition #20 prohibiting him from possessing, viewing, or using any “sexually
stimulating or sexually oriented” material “deemed inappropriate by the U.S.
Probation Officer in consultation with the treatment provider” is unconstitutionally
overbroad and vague. This contention is without merit.
Though we have acknowledged that terms like “pornography” lack precise legal
definitions, we have repeatedly upheld these same or very similar conditions when
they were “obviously relevant to the child pornography offense at issue or to the
defendant’s history and characteristics.” Deatherage, 682 F.3d at 764 (“sexually
oriented materials”); see United States v. Thompson, 653 F.3d 688, 693 (8th Cir.
2011) (“sexually explicit materials”); United States v. Wiedower, 634 F.3d 490, 492-
93, 96-97 (8th Cir. 2011) (“sexually explicit material”); Stults, 575 F.3d at 841
(“sexually oriented or sexually stimulating materials”); United States v. Boston, 494
F.3d 660, 667 (8th Cir. 2007) (“sexually stimulating or sexually oriented material”).
Here, the restriction is obviously relevant to Hobbs’s admitted child pornography
addiction. In addition, Special Condition #20 is limited to sexually stimulating or
sexually oriented material, and further limited to obtaining prior approval of the
-8-
probation officer “in consultation with the treatment provider.” By contrast, in
Simons and Kelly, it was an absolute ban on possessing material “that contains
nudity,” which would include biology textbooks and famous works of art, that caused
us to overturn the conditions as overbroad. 614 F.3d at 483-84; 625 F.3d at 521.
Here, the district court did not abuse its discretion in imposing Special Condition #20.
For the foregoing reasons, we affirm the judgment of the district court.
COLLOTON, Circuit Judge, concurring in the judgment.
I concur in affirming the judgment of the district court imposing special
conditions of supervised release. I do not join the court’s statements regarding what
a probation officer will approve in 2016 or how this court would rule on a decision by
the district court in 2016, on this record, to deny permission under Special Condition
#11 for Todd Hobbs to move in with his children upon release from custody. Any
decision by the probation office and the district court about whether to grant
permission will depend on specific facts and circumstances as they exist at the time
of a future request. Any decision by this court on appellate review should be rendered
with the benefit of a contemporaneous record and an explanation by the district court.
______________________________
-9-