636 F.3d 1229 (9th Cir. 2011), 10-30084, United States v. Williams

Docket Nº:10-30084.
Citation:636 F.3d 1229
Opinion Judge:O'SCANNLAIN, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. William Vernon WILLIAMS, Defendant-Appellant.
Attorney:Jessica L. Weltman, Assistant Federal Defender, Missoula, MT, argued the cause for the defendant-appellant, and filed the briefs. Anthony Gallagher, the Federal Defender for the District of Montana, and John Rhodes, Assistant Federal Defender, Missoula, MT, were also on the briefs. Cyndee L. Pete...
Judge Panel:Before: ROBERT R. BEEZER, DIARMUID F. O'SCANNLAIN, and RICHARD A. PAEZ, Circuit Judges.
Case Date:March 07, 2011
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1229

636 F.3d 1229 (9th Cir. 2011)

UNITED STATES of America, Plaintiff-Appellee,

v.

William Vernon WILLIAMS, Defendant-Appellant.

No. 10-30084.

United States Court of Appeals, Ninth Circuit.

March 7, 2011

Argued and Submitted Dec. 6, 2010.

Page 1230

[Copyrighted Material Omitted]

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Jessica L. Weltman, Assistant Federal Defender, Missoula, MT, argued the cause for the defendant-appellant, and filed the briefs. Anthony Gallagher, the Federal Defender for the District of Montana, and John Rhodes, Assistant Federal Defender, Missoula, MT, were also on the briefs.

Cyndee L. Peterson, Assistant United States Attorney, Missoula, MT, argued the cause for the United States, and filed the brief. Michael W. Cotter, the United States Attorney for the District of Montana, was also on the brief.

Appeal from the United States District Court for the District of Montana, Donald W. Molloy, District Judge, Presiding. D.C. No. 9:09-cr-00020-DWM-1.

Before: ROBERT R. BEEZER, DIARMUID F. O'SCANNLAIN, and RICHARD A. PAEZ, Circuit Judges.

OPINION

O'SCANNLAIN, Circuit Judge:

We must decide whether sentencing a sex offender to a life term of supervised release constitutes " cruel and unusual" punishment under the Eighth Amendment.

I

After having his computer seized by his probation officers, William Vernon Williams admitted that it contained child pornography. Williams told the officers that some of the files depicted incest and child rape. A search of his computer confirmed this admission, showing that he had obtained videos of children as young as ten being raped, and had visited websites that depict graphic sexual violence against children. Williams later admitted to having rape fantasies and being attracted to girls between the ages of nine and sixteen. He also stated that he most enjoyed child pornography that showed men raping children. Williams pled guilty to receipt of child pornography, in violation of 18 U.S.C. § 2252A(a)(2).

This was not the first time that Williams got into trouble for sexual misconduct. In 2000, Williams was convicted in Montana state court of two counts of sexual assault for an incident involving two girls, ages nine and thirteen. The victims were playing outside their home when Williams approached them and asked for hugs. They said " no" and ran away, but Williams, who is 6' 4", 285 lbs., followed them into their trailer and cornered them in a bedroom. He then kissed the girls on the lips and neck and squeezed their buttocks. Williams received a ten-year sentence for these crimes, but obtained supervised release in 2001. His supervised release was revoked in 2002, however, because he skipped sex offender treatment sessions and obtained employment at a fair frequented by children.

Because of his sexual assault conviction, the district court in the instant case determined that Williams was subject to a mandatory minimum prison term of fifteen years for his child pornography conviction. See 18 U.S.C. § 2252A(b)(1). The court noted that the Sentencing Guidelines suggested a term of supervised release of five years to life. See U.S.S.G. § 5D1.2(b). The court concluded that a lifetime of supervised release was necessary in order to protect the community from Williams. In making this determination, the court relied on Williams's prior sexual assault conviction and his apparent obsession with child rape, as indicated by the pornography he possessed and his own statements.

During his supervised release, Williams will be required, among other conditions, to meet regularly with his probation officer, to allow the officer to visit his home, to participate in substance abuse and sex offender treatment, to avoid the company of children, to permit unannounced

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searches of his computer, and to comply with the sex offender registration requirements of any state where he resides. The district court did allow Williams to serve his fifteen-year federal sentence concurrently with the undischarged portion of his Montana sexual assault sentence. Williams timely appealed.

II

On appeal, Williams admits that a challenge to his fifteen-year mandatory prison sentence is foreclosed by Ninth Circuit precedent.1 He also concedes that his sentence of lifetime supervised release was appropriate under U.S.S.G. § 5D1.2(b). He asserts, however, that a life term of supervised release violates the Eighth Amendment's prohibition against " cruel and unusual punishments," and is substantively unreasonable.

The Supreme Court has held that the Eighth Amendment contains a " narrow proportionality principle." Graham v. Florida, ___U.S. ___, 130 S.Ct. 2011, 2021, 176 L.Ed.2d 825 (2010) (internal quotation marks omitted). This principle " does not require strict proportionality between crime and sentence." Id. But it does forbid " extreme sentences that are grossly disproportionate to the crime." Id. Still, it is exceptionally difficult for a criminal to show that his sentence is unconstitutionally disproportionate. See Ewing v. California, 538 U.S. 11, 21, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (noting that successful Eighth Amendment challenges in noncapital cases are " exceedingly rare" ).

A

There are two ways to succeed on a proportionality claim. The first challenges the sentence as disproportionate " given all the circumstances in a particular case." Graham, 130 S.Ct. at 2021. In assessing the proportionality of particular sentences, we first compare the gravity of the offense to the severity of the sentence. Id. at 2022. " In the rare case in which this threshold comparison leads to an inference of gross disproportionality the court should then compare the defendant's sentence with the sentences received by other offenders in the same jurisdiction and with the sentences imposed for the same crime in other jurisdictions." Id. (internal quotation marks omitted).

Williams does not come close to passing this test. Williams committed very serious crimes: sexually assaulting a nine-year-old girl, sexually assaulting a thirteen-year-old girl, and numerous instances of receiving child pornography. Moreover, although supervised release limits a criminal's liberty and privacy, it is a punishment far less severe than prison. Cf. Graham, 130 S.Ct. at 2027 (noting that " life without parole is the second most severe penalty permitted by law" because it " deprives the convict of the most basic liberties" and " means denial of hope" (internal quotation marks omitted)). A lifetime of...

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