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, supra; see
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.
No comments:
Post a Comment