United States v. Shultz

• Citation: 733 F.3d 616
• Decision Date: 23 October 2013
• Docket Number: No. 12–6351.,12–6351.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Robert Thomas SHULTZ, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

733 F.3d 616

UNITED STATES of America, Plaintiff–Appellee,

v.Robert Thomas SHULTZ, Defendant–Appellant.

No. 12–6351.

United States Court of Appeals,Sixth Circuit.

Argued: Oct. 9, 2013.

Decided and Filed: Oct. 23, 2013.

ARGUED: Laura E. Davis, Federal Defender Services Of Eastern Tennessee, Inc., Knoxville, Tennessee, for Appellant. Luke A. McLaurin, United States Attorney's Office, Knoxville, Tennessee, for Appellee. ON BRIEF: Laura E. Davis, Federal Defender Services of Eastern Tennessee, Inc., Knoxville, Tennessee, for Appellant. Luke A. McLaurin, Matthew T. Morris, United States Attorney's Office, Knoxville, Tennessee, for Appellee.

Before: KEITH and SUTTON, Circuit Judges; BLACK, District Judge. ^*

OPINION

SUTTON, Circuit Judge.

Robert Shultz, who stands convicted of receiving and possessing child pornography, appeals from the district court's imposition of two special conditions of supervised release. We affirm.

I.

Over a span of three or four years, Shultz downloaded hundreds of images and dozens of videos of child pornography. Some files depicted children as young as six; many showed sadistic, masochistic or violent behavior. Shultz used file-sharing software to make some of his pornography available for others to download.

In 2010, Shultz pled guilty to receiving child pornography, 18 U.S.C. § 2252A(a)(2)(A), and to possessing child pornography, 18 U.S.C. § 2252A(a)(5)(B). The district court sentenced Shultz to 171 months in prison followed by lifetime supervised release subject to a series of special conditions. Shultz appealed, claiming that the district court improperly lengthened his prison term in order to promote his rehabilitation. We agreed, see Tapia v. United States, ––– U.S. ––––, 131 S.Ct. 2382, 2385, 180 L.Ed.2d 357 (2011), and sent the case back for a fresh sentencing. This time the district court imposed a sentence of 168 months in prison, again followed by lifetime supervised release, again subject to a series of special conditions.

Shultz appeals once more. He now challenges two of the district court's twelve conditions of supervised release: condition four, which restricts his contact with children, and condition six, which restricts his possession of sexually arousing material.

II.

The government says that Shultz forfeited his challenge to the supervised release conditions because he did not argue the point in his first appeal. But when Shultz objected to these conditions during his re-sentencing, the government said nothing about forfeiture in response. Shultz may have forfeited his challenge, but if so the government forfeited the forfeiture. See United States v. Turner, 602 F.3d 778, 783 (6th Cir.2010).

III.

Condition four reads: “[Shultz] shall not associate and/or be alone with children under 18 years of age, nor shall he be at any residence where children under the age of 18 are residing, without the prior written approval of the probation officer. In addition, [Shultz] shall not visit, frequent, or remain about any place where children under the age of 18 normally congregate (public parks, playgrounds, etc.) or any business that caters to and/or targets child customers.” R. 39 at 5. Shultz says the condition violates (1) the sentencing statute, (2) the Article III non-delegation doctrine, (3) his First Amendment rights of association and assembly, (4) the Fifth Amendment prohibition against vague laws and (5) his right to interact with his own family. All five arguments fail.

18 U.S.C. § 3583(d). Shultz complains that condition four oversteps two limits established by the sentencing statute. One, a condition of supervised release must be “reasonably related” to various sentencing factors, including the nature of the offense and the characteristics of the defendant. 18 U.S.C. § 3583(d)(1). And two, a condition must involve “no greater deprivation of liberty than is reasonably necessary” to deter crime, protect the public and rehabilitate the defendant. Id. § 3583(d)(2).

In view of the district court's front-row seat at the proceedings and its sentencing experience, we generally respect its imposition of supervised-release conditions in the absence of an abuse of discretion. United States v. Alexander, 509 F.3d 253, 256 (6th Cir.2007). This case illustrates why. The judge not only interactedwith the defendant at this sentencing hearing but also throughout the case. This sentencing hearing, indeed, was not the first time the district court evaluated the danger Shultz posed to children. After Shultz pled guilty, the court ordered that Shultz “not be in the presence of his own minor children without the presence of another adult” pending sentencing. R. 27 at 34. Appellate judges sitting far away and reviewing a case months if not years later should give the benefit of the doubt to trial judges faced with the difficult task of sentencing individuals. “While trial judges sentence individuals face to face for a living, we review transcripts for a living. No one sentences transcripts.” United States v. Poynter, 495 F.3d 349, 351 (6th Cir.2007).

We also must respect the policy choices Congress made when it adopted the supervised release statute. In the main, Congress authorized only short terms of supervised release. For class A felonies, the most serious category of federal offenses, a supervised release term ordinarily may not exceed five years. 18 U.S.C. § 3583(b)(1). Child pornography crimes fall into a discrete group of offenses in which Congress went further, mandating a minimum supervised release term of five years and authorizing a maximum term of life. Id. § 3583(k). This does not mean anything goes when a defendant is convicted of a child pornography offense, but it does suggest that Congress saw a grave danger to public safety from known users of child pornography, beyond the danger posed by a run-of-the-mine felon.

In view of Congress's general judgment that child pornography offenses deserve strict conditions of supervised release and the district court's particular judgment that rigor was warranted in the case at hand, Shultz cannot prevail. Cf. United States v. Buchanan, 449 F.3d 731, 736 (6th Cir.2006) (Sutton, J., concurring) (“[T]he alignment of the views of the Sentencing Commission with the independent views of a sentencing judge” entitles a sentence to special respect.). The district court had good reason to fear that Shultz might sexually assault children. Shultz was not a one-time offender. He had spent three or four years assembling a large collection of child pornography to the tune of more than 700 images and 60 videos. Worse still, some of Shultz's files depicted adults having sexual intercourse with children. The scope and content of Shultz's collection displays a preoccupation with sex involving children, and the district court could reasonably conclude that he might one day act upon this fascination by sexually assaulting a child.

Nor was the possibility of assault remote. Many of his files depicted sadistic, masochistic or otherwise violent abuse of children. And Shultz had a propensity for violence. He has one conviction for domestic assault and one for aggravated assault. In the latter case, he “pinned [his wife] down in the bathroom, where he repeatedly banged her head on the floor while holding her down. [She] then attempted to flee the residence, only to be grabbed and slung into a wall, causing further bodily injury....” PSR 12.

Condition four reasonably responds to these reasonable concerns and complies with § 3583(d) in doing so. The district court, to begin, did not go astray in requiring Shultz to receive his probation officer's written approval before associating with, being alone with or being in the same residence as a child. The probation officer is well placed to assess whether Shultz poses a danger to a particular child, making it reasonable to entrust him with responsibility for deciding whether the child would be safe when left in Shultz's company. See, e.g., United States v. Mickelson, 433 F.3d 1050, 1057 (8th Cir.2006) (upholding similar condition).

Nor did the district court commit reversible error in prohibiting Shultz from going near “any place where children ... normally congregate ... or any business that caters to [or] targets child customers.” The prohibition is strict but for good reason. A sexual predator near a park or a playground puts at risk not just one or two children but a lot of them. Beyond that, children at such locations are often unattended, exposing them to heightened risks of assault. The numerosity and heightened vulnerability of potential victims at these places made it proper for the district court to bar Shultz from frequenting them. It was also proper for the district court to adopt a categorical restriction upon Shultz's movement, as opposed to one that leaves matters to the discretion of the probation officer. An officer can make an individualized assessment of the risk Shultz poses to a potential victim when Shultz interacts with one child or even with a small group of children; not so, or at least less so, when the potential victims are the juvenile general public. No abuse of discretion occurred. See, e.g., United States v. Lewis, ––– Fed.Appx. ––––, ––––, 2012 WL 5382948, at *7 (6th Cir. Nov. 5, 2012) (upholding similar condition).

In response to all this, Shultz says that severe restrictions upon a convict's movement or association with children are never reasonable when the convict “only” received or possessed child pornography. Something more, he says, is required, such as physical abuse of children. But in this case, there is something more: Shultz's multi-year history of collecting pornography; the size of his collection; his files' depiction of adults having sexual intercourse with children; their depiction of sadism, masochism and violence; and Shultz's prior assault convictions. Shultz may not yet have attacked a minor, but a sex offender does not get one free pass at child...