U.S. v. Mickelson

• Decision Date: 06 January 2006
• Docket Number: No. 05-2324.,05-2324.
• Citation: 433 F.3d 1050
• Parties: UNITED STATES of America, Appellee, v. Thomas MICKELSON, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1050

433 F.3d 1050

UNITED STATES of America, Appellee, v. Thomas MICKELSON, Appellant.

No. 05-2324.

United States Court of Appeals, Eighth Circuit.

Submitted: November 15, 2005.

Filed: January 6, 2006.

John P. Messina, argued, Federal Public Defender, Des Moines, IA, for appellant.

Robert Lee Teig, argued, Asst. U.S. Atty., Cedar Rapids, IA, for appellee.

Before MURPHY, McMILLIAN, and GRUENDER, Circuit Judges.

MURPHY, Circuit Judge.

Thomas Mickelson pled guilty to receiving child pornography in violation of 18 U.S.C. § 2252(a)(2)(A). The district court¹ sentenced him to 51 months imprisonment and three years of supervised release with a number of special conditions. Mickelson appeals, challenging the reasonableness of his sentence and the validity of several terms of his supervised release. We affirm.

Mickelson was charged on December 16, 2003 with one count of receiving child pornography, in violation of 18 U.S.C. § 2252(a)(2)(A) (count 1), and one count of possessing child pornography in violation of 18 U.S.C. § 2252(a)(4)(B) (count 2). He pled guilty to count 1 on December 10, 2004 pursuant to a plea agreement. At the sentencing hearing he stipulated to a total offense level under the advisory guidelines of 22, a criminal history category of I, and a guideline range of 41 to 51 months. Mickelson's counsel suggested that a sentence at the bottom end would be more appropriate but asked the court to sentence him "somewhere within that range."

The district court chose to sentence Mickelson at the top of the guideline range. The court considered the factors in 18 U.S.C. § 3553(a) before choosing a sentence of 51 months, based on the seriousness of Mickelson's offense, his admission that he had sent images to other persons, his use of a computer in receiving images, and the fact that some of the images depicted children under the age of 12 and sadistic or masochistic violence. Although the district court also recognized potentially mitigating circumstances, including Mickelson's history of serious mental health issues, his alcoholism, and his physical disability, it declined to reduce his sentence, at least in part because the court found no evidence of a causal relationship between these factors and his offense.

The district court also sentenced Mickelson to three years of supervised release with a number of special conditions to which his counsel objected. Special Conditions 3 and 4 required Mickelson to participate in the Remote Alcohol Testing Program or Video Information Capture and to be placed on the Global Positioning Satellite (GPS) system for tracking at the discretion of the probation office. Special Condition 6 required Mickelson to receive mental health counseling if his probation officer deemed it appropriate. Special Condition 12 required Mickelson to have no contact with children under the age of 18 without the prior written consent of the probation office.

On appeal, Mickelson contends that his 51 month sentence was unreasonable, that Special Conditions 3, 4, and 6 constituted an improper delegation of the court's authority to the probation office, and that Special Condition 12 was "unnecessary and unreasonable" and therefore an abuse of discretion.

Mickelson first challenges his sentence as unreasonable. He argues that he was a "fringe offender" in the world of child pornography and the district court therefore made a "clear error in judgment" by sentencing him at the top of the advisory guideline range. He also contends that the court abused its discretion by focusing on whether his mitigating circumstances were causally related to his instant offense.

The government's initial argument is that this court lacks jurisdiction to review Mickelson's sentence because it was within the guideline range and a sentence within the guideline range is not listed as one of the bases for appellate review in 18 U.S.C. § 3742(a). Its second argument is that Mickelson waived his right to challenge his sentence because it was within the guideline range to which he had agreed. Finally, the government contends that Mickelson's sentence was presumptively reasonable because it was within the guideline range, the district court did not err in calculating the guidelines, and it considered all of the relevant factors under 18 U.S.C. § 3553(a).

I.

We have already rejected the government's jurisdictional argument in United States v. Frokjer, 415 F.3d 865, 875 n. 3 (8th Cir.2005), and United States v. McCully, 407 F.3d 931, 933 n. 2 (8th Cir.2005). In those cases we held that an unreasonable sentence would be "in violation of law" and subject to review under 18 U.S.C. § 3742(a)(1) regardless of whether it was within the guideline range. In many other cases subsequent to United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we have conducted a reasonableness review of sentences within the guideline range. See, e.g., United States v. Marcussen, 403 F.3d 982, 985 (8th Cir.2005); United States v. Ameri, 412 F.3d 893, 901 (8th Cir.2005); United States v. Marshall, 411 F.3d 891, 897 (8th Cir.2005). The government cites no post Booker case law in support of its jurisdictional argument.

Although we are bound by our precedents in Frokjer and McCully and only the court en banc could overturn them, see Bilello v. Kum & Go, LLC, 374 F.3d 656, 661 n. 4 (8th Cir.2004), we remain free to analyze the argument which the government continues to raise. Since its argument is based on statutory wording, we start by examining the language of the Sentencing Reform Act of 1984, 18 U.S.C. § 3551 et seq. See Musick, Peeler & Garrett v. Employers Ins. of Wausau, 508 U.S. 286, 302, 113 S.Ct. 2085, 124 L.Ed.2d 194 (1993) ("The starting point in every case involving construction of a statute is the language itself.") (internal quotations omitted); United States v. McAllister, 225 F.3d 982, 986 (8th Cir.2000) ("(O)ur starting point in interpreting a statute is always the language of the statute itself. If the plain language of the statute is unambiguous, that language is conclusive...If, on the other hand, the language of the statute is ambiguous, we should consider the purpose, the subject matter, and the condition of affairs which led to its enactment.") (internal quotations omitted).

Under 18 U.S.C. § 3742(a) of the Sentencing Reform Act (the Act), appellate review was authorized for challenges by defendants if the sentence 1) was imposed in violation of law; 2) resulted from incorrect application of the guidelines; 3) was greater than the sentence specified under the applicable guideline range; or 4) was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable. The parties in this case agree that the district court did not err in applying the guidelines and that Mickelson's sentence was not above the guideline range; his sentencing appeal thus does not fit within the second or third provisions. A sentence within the guideline range is not explicitly mentioned in § 3742(a), and the government suggests that the plain language of the statute does therefore not provide for appellate review over such a sentence.

Section 3742(a)(1) does not define what is meant by a sentence "imposed in violation of law," and the language itself can be read to cover Mickelson's sentencing appeal although it does not do so explicitly. In this respect the statutory language is ambiguous. Our rule prior to Booker was that courts lacked jurisdiction to review a sentence "within a properly determined guideline range" unless there was some constitutional problem, United States v. Smotherman, 326 F.3d 988, 989 (8th Cir.2003), and other circuits interpreted the statute similarly. See, e.g., United States v. Tucker, 892 F.2d 8, 11 (1st Cir.1989); United States v. Colon, 884 F.2d 1550, 1553 (2d Cir.1989). The present ambiguity in the phrase "in violation of law" results from Booker's holding that the guidelines are no longer mandatory. See 125 S.Ct. at 764, 543 U.S. 220. This holding transformed the federal guideline system from a mandatory regime to a system of advisory guidelines, implicitly requiring renewed consideration of which sentences are "imposed in violation of law."

We accordingly turn to an examination of the purpose of the Act and its legislative history. Under the Act as originally written and prior to Booker, the federal sentencing guidelines were mandatory and a sentence within the guideline range was required unless there was a valid basis for departure. See, e.g., United States v. Mora-Higuera, 269 F.3d 905, 913 (8th Cir.2001). In order to overcome the sixth amendment infirmities identified in Justice Stevens' majority opinion in Booker, 125 S.Ct. at 749-50, 543 U.S. 220, Justice Breyer's remedial opinion looked to the structure and purpose of the Act to determine what Congress would have intended as a remedy. Id. at 761-62. The Court then excised two provisions of the Act, eliminating the mandatory nature of the guidelines and changing the de novo standard of appellate review to review for reasonableness. Id. at 764-65. We likewise look to the legislative history to inform our understanding of § 3742(a) and to determine whether a sentence within the applicable guideline range "was imposed in violation of law" if it was unreasonable. 18 U.S.C. § 3742(a)(1).

By passage of the Act Congress greatly expanded appellate review of sentencing decisions by federal district courts. See S. Rep. No. 98-225, at 150 (1983), U.S. Code Cong & Admin.News 1984, p. 3182. To overturn a sentence prior to the Act defendants had to show that it was so disproportionate to the offense as to violate the Eighth Amendment, Rummel v. Estelle, 445 U.S. 263, 271, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980), or that there was some other procedural infirmity. See, e.g., North Carolina v. Pearce, 395 U.S. 711, 725-26, 89 S.Ct. 2072, 23 L.Ed.2d 656 (due process violated by vindictive imposition of more severe...