U.S. v. Freeman, 01-3475.

• Citation: 316 F.3d 386
• Decision Date: 06 January 2003
• Docket Number: No. 01-3475.,01-3475.
• Parties: UNITED STATES of America v. Robb Walker FREEMAN, Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 386

316 F.3d 386

UNITED STATES of America v. Robb Walker FREEMAN, Appellant

No. 01-3475.

United States Court of Appeals, Third Circuit.

Argued June 10, 2002.

Filed: January 6, 2003.

Patrick L. Meehan, United States Attorney, Laurie Magid, Deputy United States Attorney for Policy and Appeals, Robert A. Zauzmer, Assistant United States Attorney, Senior Appellate Counsel, Louis D. Lappen, Esquire (Argued), Assistant United

States Attorney, Office of United States Attorney, Philadelphia, PA, for Appellee.

Robert Epstein, Esquire, Assistant Federal Defender, Jonathan D. Libby, Esquire (Argued), Research & Writing Specialist, David L. McColgin, Esquire, Supervising Appellate Attorney, Maureen Kearney Rowley, Esquire, Chief Federal Defender, Federal Court Division, Defender Association of Philadelphia, Michael J. Kelly, Esquire, Philadelphia, PA, for Appellant.

Before: SLOVITER, ROTH & McKEE, Circuit Judges.

OPINION OF THE COURT

ROTH, Circuit Judge.

Robb Walker Freeman challenges a 70 month sentence that he received after pleading guilty to receipt and possession of child pornography under 18 U.S.C. § 2252(a)(2) & (4)(B). In sentencing, the District Court departed upward from Criminal History Category I to Category III because it believed that Category I under-represented Freeman's criminal history and likelihood of committing future crimes. See United States Sentencing Guideline (U.S.S.G.) § 4A1.3. The court also imposed a special, supervised release condition that prohibits Freeman from keeping any computer equipment in his home and from accessing the internet without permission of his probation officer.

We will vacate both the District Court's upward departure and its supervised release condition. Although the District Court heeded legitimate concerns when it increased Freeman's criminal history category, it erred by awarding a two-level departure without considering whether a one-level departure (to Category II) would be more appropriate. It also erred by failing to state the reasons for its special condition of supervised release and by imposing a condition that unreasonably impinges upon Freeman's liberty interests. See United States v. Sofsky, 287 F.3d 122, 124 (2d Cir.2002).

I. Facts and Procedural History Investigation and arrest of Freeman.

This case arises from a child pornography investigation conducted by U.S. Customs Service agents and detectives from Delaware County. They were assisted by John Flemming, a convicted child molester, who helped in an effort to cooperate with federal and state authorities. Flemming had met Freeman many years earlier at Johns Hopkins' Sexual Disorders Clinic.

As part of the investigation, Flemming invited Freeman to his home in Drexel Hill, Pennsylvania. Freeman accepted Flemming's invitation and met with Flemming and an undercover Delaware Police Detective, Mark Bucci. Bucci posed as a collector of child pornography and urged Freeman to show him the pictures of child pornography on Freeman's laptop. Bucci then showed Freeman a personal computer containing numerous child pornography images. Freeman viewed the images and said he would like to copy them. Freeman then connected his Iomega disk drive to Bucci's personal computer and downloaded the file containing child pornography. After Freeman left the meeting, he was arrested.

Upon his arrest, Freeman waived his rights and admitted that he had loaded numerous images of child pornography onto his laptop and that he knew his possession and transportation of child pornography was illegal. The agents also executed a search warrant of Freeman's home in Maryland and discovered additional child pornography in computers, a scrapbook, and a videotape.

Initial Sentencing. On March 16, 2000, Freeman pled guilty to one count of receipt of visual depictions of minors engaged in sexually explicit conduct (18 U.S.C. § 2252(a)(2)) and one count of possession of visual depictions of minors engaged in sexually explicit conduct (18 U.S.C. § 2252(a)(4)(B)). Freeman's guilty plea agreement was limited to evidence regarding his possession of child pornography. The government noted that it intended, at the sentencing hearing, to present further evidence of facts that Freeman did not agree to in connection with his guilty plea.

At the first sentencing hearing, the government presented evidence and testimony to support its request that the court depart from Criminal History Category I to Criminal History Category III. The government argued that Freeman's criminal history did not adequately reflect the seriousness of his past criminal conduct and the likelihood of recidivism. See U.S.S.G. § 4A1.3. Evidence in support of the government's claim included:

• Detective Bucci testified that Freeman had admitted to molesting numerous young boys and that he had admitted to recently taking advantage of opportunities to babysit and take nude photographs of young boys in Pennsylvania.

• The pre-sentencing report also referred to records of Freeman's earlier treatment in the Sexual Disorders Clinic at Johns Hopkins. The records revealed that Freeman did not think it was wrong to engage in sexual relationships with young boys, and that Dr. Lehne, a licensed psychologist, believed that Freeman was at great risk for relapsing into inappropriate sexual behavior.

• Freeman had two prior convictions for sexual misconduct which were not included in his Criminal History calculation because of their age. They are a 1973 conviction for a perverted sex act and a 1984 conviction for sexual assault of a minor.

On cross-examination, however, Detective Bucci admitted that all of Freeman's physical molestation of children occurred at least 15 years ago. Freeman also testified at the sentencing hearing. He admitted that he was a pedophile. Although Freeman testified that he had not had any "improper" sexual contact with minors since 1984, he did not refute the government's contention that, more recently, he took advantage of opportunities to babysit and take nude photos of young boys. Freeman did contend nevertheless that the "the difficult pictures" taken recently "were not pornographic." Freeman did not contest the fact of his 1973 and 1984 convictions.

The District Court granted the upward departure from Criminal History Category I to Category III. Criminal History Category III, combined with Freeman's final adjusted offense level of 24,¹ produced a guideline sentencing range of sixty-three to seventy-eight months imprisonment. Criminal History Category I would have provided a 60-63 month range for Freeman, and Criminal History Category II would have provided a 60-71 month range. U.S.S.G. Ch. 5, Part A. The District Court applied Category III and granted Freeman a 72 month sentence as the middle range of sentences for that category. When doing so, the court did not consider whether Freeman would be more appropriately sentenced as a Criminal History Category II. Indeed, the government asked the court to clarify the basis for its upward departure:

THE COURT: I stated for the record because of his previous record and because I think this is a danger to the community that we've raised the level to which we've sentenced him.

MR. LAPPEN: And I apologize, your Honor, but it has to be that his Criminal History Category is raised to Category [III] because this Criminal History understates his true criminal background and his risk for recidivism. And if that's your Honor's basis that is a legal basis under Harvey.

THE COURT: Couldn't have said it better myself.

MR. LAPPEN: Thank you.

This initial sentencing ruling by the District Court was also based on a mandatory minimum of five years due to Freeman's prior conviction under 18 U.S.C. § 2252(b)(1). Subsequently, in United States v. Galo, 239 F.3d 572 (3d Cir.2001), we held that crimes such as Freeman's could not support a mandatory minimum sentence under the categorical approach, i.e., the court must look at the fact of conviction and the statutory definition of the offense rather than the actual conduct giving rise to the conviction. Id. at 577. Freeman filed an unopposed appeal of his sentence and we vacated his original sentence and remanded for sentencing without a mandatory minimum. As a result, on re-sentencing, a Criminal History Category I would have provided a 51-63 month range and a Criminal History Category II would have provided a 57-71 month range. U.S.S.G. Ch. 5, Part A.

Re-sentencing. The District Court did not conduct another evidentiary hearing at re-sentencing, as it reincorporated all statements and filings from the initial sentencing hearing into the re-sentencing proceeding. The government maintained its position that, under U.S.S.G. § 4A1.3, Freeman should be sentenced under Criminal History Category III. Freeman continued to oppose this position.

The District Court again decided to sentence Freeman under Criminal History Category III, although, because of Freeman's age,² it reduced the sentence to 70 months, followed by five years of supervised release. The District Court's reasons for departing to Category III at the first sentencing hearing were read into the record, and the court reiterated its rationale at this second hearing:

Let me repeat it again. The Court will grant the Government's motion and will go to Category III because [Freeman's] Criminal History understates his criminal background, and also there is a risk of his recidivism, that is what the Court is looking at.... That is why it has decided to impose a seventy month sentence.

The court also issued a written memorandum providing the same reasons for granting the government's motion for an upward departure pursuant to U.S.S.G. § 4A1.3. Neither the District Court's statements nor its written order suggest that it considered whether Freemen's background or risk of recidivism could be appropriately addressed by a sentence under Criminal History Category II.

The District Court also imposed special conditions on...