Friday, April 29, 2016

Limewire, Child Pornography and the Lifetime Ban on Internet Access

This post examines an opinion from the U.S. Court of Appeals for the Fifth Circuit:  U.S. v. Scott, 2016 WL 1567619 (2016).  The court begins its analysis of Jason Daniel Scott’s arguments on appeal by explaining how the prosecution arose and how it proceeded:
A grand jury indicted Scott on one count of possessing child pornography in violation of 18 U.S. Code §2252A(a)(5)(B) and three counts of receiving child pornography in violation of 18 U.S. Code § 2252A(a)(2)(A). He originally pleaded guilty to one count of receiving child pornography and was sentenced to 235 months in prison and a ten-year term of supervised release. This conviction and sentence, though, were vacated after Scott filed a 28 U.S. Code § 2255 motion alleging, among other things, that he pleaded guilty because his counsel assured him that the district judge had told a mutual friend that Scott would get `hammered’ if he went to trial, but that the judge would `take it easy on him’ by sentencing him to only five years if Scott pleaded guilty.

Following this unusual course of events, Scott pleaded guilty again—this time to the single count of possessing child pornography. According to the new plea agreement's stipulated factual basis and unrebutted statements in the Presentence Investigation Report (PSR), agents conducting an investigation into the use of a computer program called LimeWire determined that Scott's computer `was actively downloading and possessing child pornography.’ The agents were able to download three illicit videos from the `shared’ file folder on Scott's computer associated with LimeWire, and through a forensic examination of Scott's computer confirmed that those videos were downloaded from the internet.
U.S. v. Scott, supra (emphasis in the original).
The court goes on to explain that Scott informed the
agents that he used LimeWire and Bit Torrent, which the PSR identifies as file-sharing programs. Scott also admitted using `search terms . . . consistent with child pornography videos/images’ on those two programs. But the record does not contain an admission or other direct evidence that Scott knew he was making child pornography available to others or was aware of LimeWire's default file-sharing setting.

In calculating Scott's Sentencing Guidelines range, however, the PSR applied a five-level enhancement under U.S.Sentencing Guidelines § 2G2.2(b)(3)(B) for `[d]istribution [of child pornography] for the receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain.’ Scott objected and suggested that the two-level enhancement under § 2G2.2(b)(3)(F) for `[d]istribution other than distribution described in subdivisions (A) through (E)’ applied instead. The addendum to the PSR disagreed, explaining that Scott `had the file sharing function of [LimeWire] turned on . . . allowing him to not only receive . . . but to “distribute” child pornography,’ and noting that § 2G2.2(b)(3)(B) applies when a defendant trades child pornography in exchange for more child pornography. 

Scott submitted the same objection to the district court, pointing out that he was convicted of possession, not distribution, and arguing that there was no evidence that he knew he was making pornography available to others or that he was a sophisticated computer user who might be presumed cognizant of his sharing. The district court overruled the objection in a written memorandum, citing this court's decision in U.S. v. Groce, 784 F.3d 291 (U.S. Court of Appeals for the 5th Circuit 2015), along with the conclusion that `Scott, by using Limewire and other peer-to-peer file sharing programs, agreed to share the child pornography he gathered.’
U.S. v. Scott, supra.
The District Court Judge then
sentenced Scott to 108 months in prison. It also imposed a lifetime term of supervised release with special conditions including absolute bans on (1) having `access to any computer that is capable of internet access’ or (2) having `unsupervised contact with anyone under the age of 18,’ and requirements that he (3) register as a sex offender and (4) `consent to installation of monitoring software on any computer to which [he] has access.’ Scott timely appealed his sentence.
U.S. v. Scott, supra.
The Court of Appeals went on to explain that it reviews
criminal sentences -- including conditions of supervised release -- using a two-step abuse-of-discretion standard. U.S. v. Richardson, 676 F.3d 491 (U.S. Court of Appeals for the 5th Circuit 2012); U.S. v. Rodriguez, 558 F.3d 408 (U.S. Court of Appeals for the 5th Circuit 2009). First, we ensure that the district judge committed no significant procedural error such as improperly calculating the Sentencing Guidelines range. U.S. v. Richardson, supra. Second, we review the substantive reasonableness of the sentence for abuse of discretion. Id. We review the district court's interpretation of the Guidelines de novo, and its factual findings for clear error. Id.
U.S. v. Scott, supra.
In his appeal, Scott argued that the District Court Judge
committed procedural error by applying an incorrect sentencing enhancement. A five-level sentencing enhancement applies to § 2252A(a)(5)(B) convictions if the offense involved `[d]istribution [of child pornography] for the receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain.’ U.S.S.G. § 2G2.2(b)(3)(B). A two-level enhancement applies for `[d]istribution other than distribution described in subdivisions (A) through (E).’ Id. § 2G2.2(b)(3)(F). As with all sentencing enhancements, the prosecution has the burden of proving § 2G2.2(b)(3)(B)'s applicability by a preponderance of the evidence. See U.S.. v. Juarez, 626 F.3d 246 (U.S. Court of Appeals for the 5th Circuit 2010).

It is undisputed that `”distribution as defined in § 2G2.2 includes operating a file sharing program that enables other participating users to access and download files [then automatically] placed in a shared folder” available to other users.’ U.S. v. Baker, 742 F.3d 618, 620 (U.S. Court of Appeals for the 5th Circuit 2014) (alteration in original) (quoting U.S. v. Dodd, 598 F.3d 449, 452–53 (U.S.Court of Appeals for the 8th Circuit 2010)); see also United States v. Richardson, 713 F.3d 232, 236 (U.S. Court of Appeals for the 5th Circuit 2013). But the parties contest whether Scott distributed child pornography `for the receipt, or expectation of receipt, of a thing of value’ so as to warrant the five-level enhancement.
U.S. v. Scott, supra.
Since the Court of Appeals could not “ascertain whether the district court made the requisite finding that Scott `knowingly’ used LimeWire to `download and distribute child pornography’ within the meaning of §2G2.2(b)(3)(B)”, it remanded the case to the District Court Judge for the judge “to determine whether the Government has met its burden of proving by a preponderance of the evidence that Scott knowingly used LimeWire in `the kind of exchange contemplated by § 2G2.2(b)(3)(B).’ See U.S. v. Groce, supra; U.S. v. Register, 931 F.2d 308 (U.S. Court of Appeals for the 5th Circuit 1991) . . .  U.S. v. Scott, supra (emphasis in the original).
The court then took up Scott’s challenge to the “supervised release terms” imposed upon him by the District Court Judge.  U.S. v. Scott, supra.  It began by noting that a
`district court has wide, but not unfettered, discretion in imposing terms and conditions of supervised release.’ U.S. v. Duke, 788 F.3d 392 (U.S. Court of Appeals for the 5th Circuit  2015) (per curiam). That discretion is cabined in two ways:

`First, the condition of supervised release must be “reasonably related” to one of four statutory factors: (1) the nature and characteristics of the offense and the history and characteristics of the defendant; (2) the need for deterrence of criminal conduct; (3) the need to protect the public from further crimes of the defendant; and (4) the need to provide the defendant with vocational training, medical care, or other correctional treatment. Second, the condition must be narrowly tailored such that it does not involve a “greater deprivation of liberty than is reasonably necessary” to fulfill the purposes set forth in [18 U.S.C.] § 3553(a).’

Id. (citation omitted). Scott argues that his supervised release terms violate these standards. 
U.S. v. Scott, supra.  The Court of Appeals noted that it would “first address the standard of review, then turn to the merits.” U.S. v. Scott, supra. 
As to the standard of review to be applied, the court explained that
[a]buse-of-discretion review typically applies to conditions of supervised release, but plain-error review applies if the defendant fails to object in the district court. U.S. v. Weatherton, 567 F.3d 149 (U.S. Court of Appeals for the 5th Circuit 2009). Scott did not object to the length of his supervised release term or any of its conditions when the district court announced them at sentencing. And his argument that abuse-of-discretion review should nonetheless apply because he `had no pre-hearing notice’ of the length or terms of supervised release fails. 

Scott cites no case in which this court has reviewed an unpreserved, alleged sentencing error for abuse of discretion on this lack-of-notice theory. To the contrary, when a defendant argued for the first time on appeal that special conditions were unreasonable and improperly imposed without pre-hearing notice, we recently reviewed both arguments for plain error. See U.S. v. Weatherton, suprasee also U.S. v. Oliphant, 456 F. App'x 456 (U.S. Court of Appeals for the 5th Circuit 2012) (per curiam) (expressing doubt as to whether `there is a notice requirement for any conditions of supervised release’). And despite Scott's conclusory assertion that objecting would have been futile, there is no indication that he was prevented from doing so. Indeed, after the special conditions were announced, counsel asked the district court to recommend a drug-abuse treatment program—and the court agreed. Cf. U.S. v. Salazar, 743 F.3d 445 (U.S. Court of Appeals for the 5th Circuit 2014) (reviewing for abuse of discretion because the district court repeatedly interrupted counsel's attempts to object).
U.S. v. Scott, supra. 
The Court of Appeals therefore reviewed Scott’s
term of supervised release for plain error only. Under this standard of review, `[w]hen there was (1) an error below, that was (2) clear and obvious, and that (3) affected the defendant's substantial rights, a  court of appeals has the discretion to correct it but no obligation to do so.’ U.S. v. Hughes, 726 F.3d 656, 659 (U.S. Court of Appeals for the 5th Circuit 2013) (quoting U.S. v. Trejo, 610 F.3d 308, 319 (U.S. Court of Appeals for the 5th Circuit 2010)). `In considering whether an error is “clear or obvious” we look to the ‘state of the law at the time of appeal,’ and we must decide whether controlling circuit or Supreme Court precedent has reached the issue in question, or whether the legal question would be subject to ‘reasonable dispute.’ U.S. v. Fields, 777 F.3d 799, 802 (U.S. Court of Appeals for the 5th Circuit 2015) (footnote omitted). Even if the first three prongs are met, a court of appeals should `remedy the error only if it “seriously affected the fairness, integrity or public reputation of the judicial proceedings.”’ Trejo, 610 F.3d at 319 (quoting U.S. v. Olano, 507 U.S. 725 (1993)).
U.S. v. Scott, supra (emphases in the original).
The court then took up Scott’s challenges to “the special conditions that, for the rest of his life, he cannot `have access to any computer that is capable of internet access’ or `have unsupervised contact with anyone under the age of 18.’”  U.S. v. Scott, supra.  It went on to explain that Scott’s
strongest challenges are to the special conditions that, for the rest of his life, he cannot `have access to any computer that is capable of internet access’ or `have unsupervised contact with anyone under the age of 18.’ Shortly after Scott's sentencing, this court found erroneous the same lifetime conditions imposed on a defendant who pleaded guilty to receiving child pornography. See U.S. v. Duke, supra. We noted that `[n]o circuit court of appeals has ever upheld’ an absolute lifetime ban on using any computer with internet access, and found it `hard to imagine that such a sweeping, lifetime ban could ever satisfy [18 U.S. Code] § 3583(d)'s requirement that a condition be narrowly tailored to avoid imposing a greater deprivation than reasonably necessary.’ U.S. v. Duke, supra.  We then explained that computer bans must `be narrowly tailored either by scope or by duration’ because, among other reasons, `the ubiquity and importance of the Internet to the modern world makes an unconditional, lifetime ban unreasonable.’ U.S. v. Duke, supra. We similarly reasoned that association bans, such as the condition prohibiting all unsupervised contact with minors, must `be narrowly tailored to achieve some balance between protecting the defendant's liberty interest and the government's interest in protecting the public.’ U.S. v. Duke, supra. Even construing the broadly worded contact-with-minors provision to `permit incidental or chance encounters with minors,’ we held the absolute lifetime ban `unreasonably broad’ given its lack of tailoring by duration or scope and the fact that—as here—Duke did not have any history of directly abusing a child. See U.S. v. Duke, supra.
U.S. v. Scott, supra. 
The Court of Appeals went on to explain that
[a]s the Government concedes, the first two prongs of plain-error review are met because these two conditions, identical to those in Duke, are clearly erroneous at the time of appellate review. See Henderson v. U.S., 185 L.Ed.2d 85 (2013); U.S. v. Fields, 777 F.3d 799, 802 (U.S. Court of Appeals for the 5th Circuit 2015). The errors affected Scott's substantial rights because, had the district judge known how Duke would be resolved when she sentenced Scott for a similar crime with a shorter statutory maximum, she presumably would not have imposed the same unconditional and highly restrictive lifetime bans.

Finally, regarding whether we should exercise our discretion to grant relief under the strict requirements of the plain-error standard's fourth prong, we are not bound by the Government's concession of reversible error, U.S. v. Castaneda, 740 F.3d 169, 171 (U.S. Court of Appeals for the 5th Circuit 2013) (per curiam), but we take into account the Government's position, candidly expressed in its brief and in oral argument, that the fourth prong is satisfied. This court recently highlighted that errors warranting fourth-prong correction are rare and egregious. See U.S. v. Segura, 747 F.3d 323, 331 (U.S. Court of Appeals for the 5th Circuit 2014). `[U]ltimately, whether a sentencing error seriously affects the fairness, integrity, or public reputation of the judicial proceedings is dependent upon the degree of the error and the particular facts of the case.’ U.S. vJohn, 597 F.3d 263, 288 (U.S. Court of Appeals for the 5th Circuit 2010).
U.S. v. Scott, supra. 
The court then enunciated its ruling in the case, noting that
Government counsel argued for correction of the plain errors here because Scott—a young man—otherwise would face severe lifelong limits on his freedom of association and his ability to reintegrate into society that would not have been imposed if the district judge had the benefit of Duke, decided shortly after Scott's sentencing. On these particular facts, we agree.

Thus, expressing no opinion on whether we would correct these errors if the Department of Justice had not taken the position that the fourth prong is met, we exercise our discretion to do so under these circumstances. We note, however, our disagreement with the Government's position, stated in its brief, that `[r]emand for re-sentencing . . . is thus required.’ Our discretion on the fourth prong . . . is broad enough that it reasonably could have been exercised here to deny resentencing; that decision, ultimately, is the court's, not the Government's. See, e.g., Young v. U.S., 315 U.S. 257 (1942) (emphasizing that the court of appeals must independently examine any alleged errors).

Accordingly, we vacate the district court's impositions of lifetime bans on accessing any computer with internet capability and having any unsupervised contact with minors. If the district court decides to impose similar conditions on remand, it may modify them by, among other things, reducing their duration or conditioning computer usage or contact with minors on court or probation-officer approval. . . .
U.S. v. Scott, supra. 

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