Wednesday, March 23, 2016

The Guilty Plea, Imprisonment and the Ban on Computers with Internet Access

This post examines an opinion issued recently by the U.S.Court of Appeals for the 5th Circuit:  U.S. v. Guillotte, 2016 WL 833316 (2016). The Court of Appeals begins its opinion by explaining that a U.S. District Court Judge who sits in the U.S. District Court for the Western District of Louisiana
sentenced Guillotte to 60 months of imprisonment, and imposed several standard and special conditions of supervised release, including a lifetime ban on `access to any computer that is capable of internet access.’ On appeal, Guillotte challenges the procedural and substantive reasonableness of his sentence and the latter special condition. 
U.S. v. Guillotte, supra.
In the brief he filed to initiate his appeal, Guillotte explained that
[a]s the result of an undercover FBI investigation via the Internet into a file sharing program, law enforcement authorities discovered that Guillotte's computer, which was seized, contained numerous files depicting images of child pornography and that Guillotte had been downloading child pornography from the internet for years. . . .

Nearly 18 months after the seizure of his computer, Guillotte was formally charged by grand jury indictment with possession and receipt of child pornography. . . . Not long after his arraignment and pretrial release, Guillotte attempted suicide and was placed in preventive detention, where he remained for the next 18 months during the pendency of the prosecution. . . .

Guillotte ultimately pled guilty to one count of possession of child pornography. . . . The presentence investigation report [PSR] concluded that Guillotte had no criminal history, resulting in a score of zero and a criminal history category of I. . . . The PSR also concluded that Guillotte's . . . total offense level was 30, resulting in a sentencing range of 97 to 121 months with a statutory maximum of 120 months. . . .

Guillotte proposed that, in lieu of additional imprisonment, the district court should release Guillotte back into the community and impose special conditions of release that would satisfy the concerns reflected in the sentencing factors to be considered by the court. . . .

The Government agreed that Guillotte `has a support system’ such that when he gets out of jail he has the ability to be on supervised release `for an extended period of time’ . . . but nevertheless recommended that Guillotte be sentenced to 60 months in jail and lifetime supervised release. . . .

The district court imposed a 60 month sentence of imprisonment and lifetime supervised release `based on the recommendation of the government’ and `considering,’ without more explanation, the seriousness of the offense, to promote respect for the law, to provide just punishment, to afford adequate deterrence and protect the public from further crimes by the defendant and to avoid unwarranted sentence disparities among defendants with similar records who are guilty of similar conduct. . . .
Original Brief for the Appellant Jeffrey Guillotte, U.S. v. Guillotte, 2015 WL 5468048. 
Getting back to the opinion, the Court of Appeals began its analysis of Guillotte’s arguments on appeal by explaining that
[o]n September 15, 2014, Guillotte was sentenced to 60 months of imprisonment after having pled guilty to one count of possession of child pornography in violation of 18 U.S. Code § 2252A(a)(5)(B). Before departures, Guillotte's total offense level at sentencing was 30 and his criminal history category was I, which resulted in a Guidelines range of 97–120 months after accounting for the 10–year statutory maximum. Prior to sentencing, Guillotte filed a sentencing memorandum, detailing his mental health history and arguments in mitigation, and proposing a community-based sentence. At sentencing the district court varied downward to the Government's recommendation of 60 months of imprisonment, followed by a lifetime of supervised release. As one of the special conditions of supervision, the district court imposed a lifetime prohibition on `access to any computer that is capable of internet access.’

After sentencing, Guillotte filed a motion requesting that the district court clarify why it rejected his mitigation arguments. The district court denied the motion after reviewing the contents of the sentencing hearing and reemphasizing that it had considered all of the materials before it. Guillotte filed a timely notice of appeal.
U.S. v. Guillotte, supra.  You can, if you are interested, read more about the United States’ Federal Sentencing Guidelines in the Wikipedia entry you can find here.
Guillotte made two arguments on appeal and the Court of Appeals addressed then in what seems to have been the order in which he articulated them.  U.S. v. Guillotte, supra.  It began with his first argument, i.e., that
his sentence is both procedurally and substantively unreasonable. Specifically, Guillotte claims that the district court committed procedural error by failing to explain why his need for mental health treatment did not justify a community-based sentence. He further contends the resulting sentence of 60 months of imprisonment is substantively unreasonable.

We review the reasonableness of the sentence imposed for abuse of discretion, and proceed in two stages. U.S. v. Mondragon–Santiago, 564 F.3d 357 (U.S. Court of Appeals for the 5th Circuit 2009). First, the court determines if the district court made any procedural errors, such as improperly calculating the Guidelines range, failing to consider the § 3553(a) factors, or failing to sufficiently explain the chosen sentence. Gall v. U.S., 552 U.S. 38, 51 (2007). If there is no procedural error, the court then considers the substantive reasonableness given the `the totality of the circumstances.’ Id.
U.S. v. Guillotte, supra. 
The Court of Appeals then began its analysis of Guillotte’s sentence in light of these standards:
To begin, considering the terms of supervised release separately below, we find no procedural error in Guillotte's 60–month sentence. Under 18 U.S. Code § 3553(c), a sentencing court must state `the reasons for its imposition of the particular sentence.’ For sentences within the Guidelines, little explanation is necessary; however, when parties present nonfrivolous or legitimate reasons for departure `the judge will normally go further and explain why he has rejected those arguments. Mondragon-Santiago, 564 F.3d at 361 (quoting Ritav. U.S., 551 U.S. 338, 356–57 (2007)). The ultimate goal of this explanation is to allow for meaningful appellate review. Rita v. U.S., supra.
U.S. v. Guillotte, supra. 
The Court of Appeals then outlined its analysis of the sentence imposed on Guillotte, noting that
we find that the district court did not fail to adequately explain Guillotte's sentence. The record shows that the district court had Guillotte's detailed sentencing memorandum before it, which explained his mental health concerns and other mitigation, and the district court stated it had reviewed the materials. The district court also heard the Government's recommendation for a downward variance to 60 months of imprisonment and Guillotte's arguments for community supervision that emphasized his strong support system. Finally, before sentencing Guillotte the district court referenced the § 3553(a) factors and explained it had arrived at the sentence based on the seriousness of the offense, the need to protect the public and avoid unwarranted sentence disparities, and the Government's recommendation.

Accordingly, the district judge's reasoning was clear and no further explanation was required. Moreover, in the order denying Guillotte's motion for clarification, the district court reiterated that it had extensively reviewed the documents submitted by the defendant and the specific facts of the case prior to imposing the sentence.

Next, considering the substantive reasonableness of Guillotte's sentence, we find no error. A below-Guidelines sentence is entitled to a presumption of reasonableness. U.S. v. Simpson, 796 F.3d 548, 557 (5th Circuit 2015); see id. at 559 (holding defendant failed to rebut the presumption of reasonableness afforded to his below-guidelines sentence). `The presumption is rebutted only upon a showing that the sentence does not account for a factor that should receive significant weight, it gives significant weight to an irrelevant or improper factor, or it represents a clear error of judgment in balancing sentencing factors.’ U.S. v. Cooks, 589 F.3d 173, 186 (5th Circuit 2009). `A defendant's disagreement with the propriety of his sentence does not suffice to rebut the presumption. . . .’ U.S. v. Camero–Renobato, 670 F.3d 633, 636 (5th Circuit 2012) (per curiam).

Here, Guillotte takes issue with the district court's rejection of his proposed sentence of community supervision. As explained above, the district court clearly considered and rejected these arguments while balancing the § 3553(a) factors. Because Guillotte has failed to present any other arguments beyond disagreement with the propriety of his below-Guidelines sentence, we hold his sentence is not substantively unreasonable.
U.S. v. Guillotte, supra. 
The Court of Appeals then took up Guilotte’s argument that the District Court Judge's
special condition prohibiting him from using any computer capable of Internet access is overly broad. Because Guillotte did not object to this condition in the district court, we review for plain error. To show plain error, Guillotte must show an error that is clear or obvious, and affects his substantial rights. Puckett v. U.S., 556U.S. 129, 135 (2009). In the ordinary case, a sentencing error affects a defendant's substantial rights if it affected the outcome of the proceedings in the district court. Puckett v. U.S., supra.   When those elements are shown, the court has the discretion to remedy the error if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id.After Guillotte's sentencing, this court held in U.S. v. Duke, 788 F.3d 392 (5th Circuit 2015) (per curiam), that absolute lifetime bans on computer or Internet access are not permissible, noting that such bans must be `narrowly tailored either by scope or by duration.’ U.S. v. Duke, supra. Therefore, as the Government concedes, the district court committed plain error. See Henderson v. U.S., 133 S.Ct.1121, 1130–31 (2013) (`[I]t is enough that an error be plain at the time of appellate consideration. . . .’) (internal quotations omitted).
 We conclude that the error affected Guillotte's substantial rights. Puckett v. U.S., supra. Under these circumstances, and considering the agreement of the parties that remand is appropriate, we exercise our discretion to notice the error, vacate this condition, and remand for resentencing as to the supervised release conditions.
U.S. v. Guillotte, supra. 
The Court of Appeals therefore held that
[f]or the reason herein stated, we AFFIRM the procedural and substantive reasonableness of Guillotte's sentence, VACATE the lifetime Internet ban imposed as a special condition of supervised release, and REMAND to the district court for resentencing proceedings consistent with this opinion.

U.S. v. Guillotte, supra. 

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