869 F.3d 1153 (10th Cir. 2017), 16-5156, United States v. Haymond

Docket Nº:16-5156
Citation:869 F.3d 1153
Opinion Judge:BRISCOE, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ANDRE RALPH HAYMOND, Defendant-Appellant
Attorney:William D. Lunn, Tulsa, Oklahoma, appearing for Appellant. Leena Alam, Assistant United States Attorney (Danny C. Williams, Sr., United States Attorney, and Andrew J. Hofland, Assistant United States Attorney, on the brief), Office of the United States Attorney, Tulsa, Oklahoma, appearing for App...
Judge Panel:Before KELLY, BRISCOE, and McHUGH, Circuit Judges. KELLY, Circuit Judge, concurring in part and dissenting in part. KELLY, Circuit Judge, concurring in part and dissenting in part.
Case Date:August 31, 2017
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
SUMMARY

The district court revoked Andre Haymond’s supervised release based in part on a finding that Haymond knowingly possessed thirteen images of child pornography. The district court imposed the mandatory minimum sentence. Haymond appealed, arguing the evidence was insufficient to support a finding by a preponderance of the evidence that he possessed child pornography, and that 18 U.S.C. 3583(k) was... (see full summary)

 
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Page 1153

869 F.3d 1153 (10th Cir. 2017)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

ANDRE RALPH HAYMOND, Defendant-Appellant

No. 16-5156

United States Court of Appeals, Tenth Circuit

August 31, 2017

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA. (D.C. No. 4:08-CR-00201-TCK-1).

William D. Lunn, Tulsa, Oklahoma, appearing for Appellant.

Leena Alam, Assistant United States Attorney (Danny C. Williams, Sr., United States Attorney, and Andrew J. Hofland, Assistant United States Attorney, on the brief), Office of the United States Attorney, Tulsa, Oklahoma, appearing for Appellee.

Before KELLY, BRISCOE, and McHUGH, Circuit Judges. KELLY, Circuit Judge, concurring in part and dissenting in part.

OPINION

BRISCOE, Circuit Judge.

The district court revoked Andre Ralph Haymond's supervised release based in part on a finding that Haymond knowingly possessed thirteen images of child pornography. The district court imposed the mandatory minimum sentence required by 18 U.S.C. § 3583(k). Haymond appeals and argues that the evidence was insufficient to support a finding by a preponderance of the evidence that he possessed child pornography, and that 18 U.S.C. § 3583(k) is unconstitutional because it violates his right to due process.

We conclude that the evidence was sufficient to support the district court's finding that Haymond violated the conditions of his supervised release, but we agree that 18 U.S.C. § 3583(k) is unconstitutional because it strips the sentencing judge of discretion to impose punishment within the statutorily prescribed range, and it imposes heightened punishment on sex offenders based, not on their original crimes of conviction, but on new conduct for which they have not been convicted by a jury beyond a reasonable doubt. Thus, we affirm the district court's revocation of Haymond's supervised release, but we vacate Haymond's sentence and remand for resentencing.

I

On January 21, 2010, Haymond was convicted by a jury of one count of possession and attempted possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2). Aplt. App. vol. I, at 29. For this offense, Haymond was sentenced to thirty-eight months of imprisonment, to be followed by ten years of supervised release. Id. at 30-31. Haymond began serving his supervised release on April 24, 2013. Id. at 144.

On October 22, 2015, at 6:00 am, probation officers conducted a surprise search of Haymond's apartment. Id. at 145. The officers seized a password-protected Samsung cellular Android phone belonging to Haymond, a personal computer belonging to Haymond, a personal computer belonging to Haymond's roommate, and two other computers found in the kitchen area. Id.

A probation officer conducted a forensic examination of Haymond's phone using a Cellebrite device, which extracts the flash memory of the phone for examination. Id. This examination revealed web history for only October 21, 2015, indicating that all prior history had been deleted. Id. at 146. The web history for October 21 contained numerous websites with titles indicative of sexually explicit material. Id. (listing websites). The forensic examination of Haymond's phone also revealed fifty-nine images that the FBI's Internet Crime Task Force identified as child pornography. Id. at 147.

Based on these findings, Haymond's probation officer alleged that Haymond had committed five violations of his supervised release: (1) possession of fifty-nine images of child pornography, in violation of the mandatory condition that Haymond not commit another federal, state, or local crime; (2) failure to disclose to the probation office all internet devices he possessed, in violation of a special computer restriction; (3) possession of numerous sexually explicit images on his phone, in violation of a special condition that he not view or possess pornography; (4) failure to install and pay for computer monitoring software, in violation of a special monitoring condition; and (5) failure to attend sex offender treatment on fifteen occasions, in violation of a special condition that he participate in treatment. Id. at 142.

The district court found, by a preponderance of the evidence, that Haymond had committed all five violations, but, with respect to the first alleged violation, possession of child pornography, the court concluded that Haymond had possessed only the thirteen images located in his phone's gallery cache, not the other forty-six images located in other portions of the phone's cache. Id. Because the possession of child pornography triggered a mandatory minimum sentence of five years' reincarceration, under 18 U.S.C. § 3583(k), the judge sentenced Haymond to five years' reincarceration, to be followed by a five-year term of supervised release. Id. at 191-92, Aplt. App. vol. III, at 152.

Haymond appeals and challenges only the first of these alleged violations. He argues: (1) that the presence of images in his phone cache was insufficient to show by a preponderance of the evidence that he knowingly possessed child pornography, and (2) that 18 U.S.C. § 3583(k) is unconstitutional because it deprives him of due process. Aplt. Br. at 2-4.

II

" We review the district court's decision to revoke supervised release for abuse of discretion." United States v. Jones, 818 F.3d 1091, 1097 (10th Cir. 2016) (quoting United States v. LeCompte, 800 F.3d 1209, 1215 (10th Cir. 2015)). " A district court abuses its discretion when it relies on an incorrect conclusion of law or a clearly erroneous finding of fact." United States v. Battle, 706 F.3d 1313, 1317 (10th Cir. 2013). " A finding of fact is clearly erroneous if it is without factual support in the record or if, after reviewing all of the evidence, we are left with the definite and firm conviction that a mistake has been made." United States v. Hernandez, 847 F.3d 1257, 1263 (10th Cir. 2017) (quoting In re Vaughn, 765 F.3d 1174, 1180 (10th Cir. 2014)).

Here, the district court abused its discretion by relying on a clearly erroneous finding of fact that " Haymond knowingly took some volitional act related to the Gallery Images that resulted in the images being on his phone in a manner consistent with knowing possession." Aplt. App. vol. I, at 164. Nonetheless, the remaining evidence in the record was sufficient to support a finding, by a preponderance of the evidence, that Haymond knowingly possessed the thirteen images of child pornography located in the Gallery cache of his smart phone.

The only expert testimony regarding the Gallery cache function on Haymond's smart phone came from David Penrod, who testified as an expert for Haymond; the prosecution did not provide any expert testimony. Id. at 166. With respect to all fifty-nine images, Penrod testified that the presence of the images in the phone's cache did not indicate whether or not the user had viewed the images or knew of their existence. Aplt. App. vol. II, at 128 (" With Internet cache databases, all that information is automatically downloaded in the background without the user's knowledge." ); id. at 163-64 (A user may not know images in the Gallery cache exist " because the Gallery3D cache database contains images from all over the phone, not just from one particular folder on the phone." ); id. at 140 (" [T]he fact [the apk file is] still sitting there in the download folder is very strong evidence that the user had no knowledge that this file was there." ). Further, Penrod testified that all the images were thumbnails, indicating that the user had not clicked on them because, if the user had viewed an enlarged image, that enlarged image would also appear in the cache. Id. at 130-32. The images did not include any metadata, so it was impossible to determine when the images came to be on the phone, except to say " that they arrived in the cache file of the phone at some point prior to seizure." Aplt. App. vol. I, at 149; Aplt. App. vol. II, at 135-36.

Penrod also testified that Android smart phone users can easily access their photo gallery through the Gallery3D application and can look through the photos in that application. Aplt. App. vol. II, at 158. He was then asked this question: " So a cached file from the Gallery indicates that, just the same way as for the Samsung browser, that at one point an image that corresponded to that cached file was present in that application?" Id. at 159. He responded, " Correct." Id.

Further, Penrod's testimony makes clear that images can appear in the Gallery3D application without a user taking any volitional action to place them there. Penrod testified that " the gallery cache functions in the same way that the browser cache does: it's a cached database and it contains thumbnails." Id. at 163. He stated that the Gallery3D...

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