U.S.A v. Blinkinsop

• Citation: 606 F.3d 1110
• Decision Date: 27 May 2010
• Docket Number: No. 09-30120.,09-30120.
• Parties: UNITED STATES of America, Plaintiff-Appellee,v.Paul BLINKINSOP, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

606 F.3d 1110

UNITED STATES of America, Plaintiff-Appellee,v.Paul BLINKINSOP, Defendant-Appellant.

No. 09-30120.

United States Court of Appeals,

Ninth Circuit.

Submitted April 5, 2010.^*

Filed May 27, 2010.

COPYRIGHT MATERIAL OMITTED

David F. Ness, Federal Defenders of Montana, Great Falls, MT, for the defendant-appellant.

Cyndee L. Peterson, Assistant U.S. Attorney, Missoula, MT, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Montana, Sam E. Haddon, District Judge, Presiding. D.C. No. 4:08-CR-00117-SEH.

Before: ALFRED T. GOODWIN, MICHAEL DALY HAWKINS and N. RANDY SMITH, Circuit Judges.

GOODWIN, Senior Circuit Judge:

Paul Blinkinsop, who pled guilty to one count of receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2), appeals his sentence as to his 97-month imprisonment and three special conditions of his 5-year supervised release. We affirm in part, vacate in part, and order a limited remand for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

In 2008, the Wyoming Internet Crimes Against Children Task Force determined that a computer registered to Blinkinsop contained images of child pornography available to other users on an Internet shared program, LimeWire File Share. ¹ This information was reported to the Air Force Office of Special Investigations, which, with Immigration and Customs Agents, interviewed Blinkinsop, an Air Force Staff Sergeant, stationed at Malmstron Air Force Base in Great Falls, Montana. During the interview, Blinkinsop admitted that he viewed child pornography over the Internet via his computer and that he used search terms, such as “teenage” and “school girl.”

When Blinkinsop refused consent to search his computer, investigators obtained a search warrant and seized his computer and external storage equipment from his residence. A forensic analysis of Blinkinsop's equipment revealed more than 600 images of child pornography created from 2002-2008, including 42 videos and 99 still pictures, with some of the children younger than 12 years old. Videos on Blinkinsop's computer included depictions of prepubescent girls being penetrated in anal and vaginal intercourse, bondage, and urination.

Blinkinsop was indicted in Count I for Receipt of Child Pornography, in violation of 18 U.S.C. § 2252A(a)(2), and, in Count II, for Possession of Child Pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B); the indictment included a forfeiture allegation under 18 U.S.C. § 2252A(a)(3) for Blinkinsop's computer and data-storage equipment. At his change-of-plea hearing, Blinkinsop admitted that he sought and downloaded child pornography from the Internet. He pled guilty to receiving child pornography and admitted the forfeiture allegation. In accordance with Blinkinsop's plea agreement, the government dismissed Count II for possessing child pornography.

The probation office calculated Blinkinsop's advisory Sentencing Guidelines range at 97 to 121 months of imprisonment and his supervised release term of 5 years to life under 18 U.S.C. § 3583(k). The district judge considered the 18 U.S.C. § 3553(a) factors and weighed the serious nature of Blinkinsop's crime against his personal record, military service, and lack of criminal history before imposing the low-end, 97-month imprisonment term with 5 years of supervised release. In addition, the judge imposed thirteen special conditions of supervised release without explanation. Although the judge asked counsel if they had any statements that they wanted placed on the record “as to why sentence as stated should not be the judgment entered,” neither counsel objected to the sentence, and Blinkinsop thanked the judge for it. Sentencing Transcript at 18, 21.

On appeal, Blinkinsop challenges his imprisonment term as being unreasonable because the district judge allegedly failed to take into account fully his background, potential for rehabilitation, and low recidivism risk. He also argues that his supervised-release special conditions, relating to his proximity to children, possession of a camera phone, and ban on his access to the Internet are unreasonable and overbroad.

DISCUSSION

I. Imprisonment Term

We review a district judge's sentence for abuse of discretion. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). This two-part analysis requires determining: (1) whether there was procedural error in formulating the sentence, and (2) whether the sentence is substantively reasonable. Id. “[W]hen the judge's discretionary decision accords with the Commission's view of the appropriate application of § 3553(a) in the mine run of cases, it is probable that the sentence is reasonable.” Rita v. United States, 551 U.S. 338, 351, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); see United States v. Carty, 520 F.3d 984, 994 (9th Cir.2008) (en banc) (adopting this standard in our circuit). Since “ ‘[t]he sentencing judge has access to, and greater familiarity with, the individual case and the individual defendant before him than the Commission or the appeals court,’ ” our determination that “a ‘different sentence [i]s appropriate is insufficient to justify reversal of the district court.’ ” United States v. Carter, 560 F.3d 1107, 1120 (9th Cir.) (quoting Gall, 552 U.S. at 51, 128 S.Ct. 586) cert. denied, --- U.S. ----, 130 S.Ct. 273, 175 L.Ed.2d 184 (2009).

A. Sentencing Procedure

Because Blinkinsop did not object to his imprisonment term at sentencing, the district judge's sentencing procedure is reviewed for plain error.² United States v. Sylvester Norman Knows His Gun, III, 438 F.3d 913, 918 (9th Cir.2006). Proper sentencing procedure requires that, before imposing sentence, the district judge: (1) correctly calculate the Sentencing Guidelines range; (2) treat the Guidelines as advisory; (3) consider the 18 U.S.C. § 3553(a) factors; ³ (4) choose a sentence that is not based on clearly erroneous facts; (5) adequately explain the sentence; and (6) not presume that the Guidelines range is reasonable. Carty, 520 F.3d at 991-93; see Gall, 552 U.S. at 49-50, 128 S.Ct. 586. Adequate explanation not only derives from the judge's pronouncement of the sentence, but “may also be inferred from the PSR [presentence investigation report] or the record as a whole.” Carty, 520 F.3d at 992.

At sentencing, the district judge recounted the calculation of Blinkinsop's sentence under the Sentencing Guidelines, including the adjustments that he had made.⁴ Blinkinsop's total offense level of 30 and his criminal history of I, the lowest level, yielded an advisory Sentencing Guidelines range of 97 to 121 months of imprisonment. The judge explained to Blinkinsop that the Sentencing Guidelines range was “advisory” and “not binding upon the court,” but that it did “serve as a kind of starting point or an initial benchmark ... for determination of an appropriate sentence.” Sentencing Transcript at 10. The judge also addressed the § 3553(a) factors.⁵

In determining Blinkinsop's sentence, the sentencing judge emphasized that Blinkinsop's crime of receiving child pornography was serious. The judge weighed the serious nature of Blinkinsop's crime against his family ties, military service, and lack of a criminal record:

I balance those obviously serious matters against what on another front is the service that you have provided and ... your service record. And those are positive considerations which bear upon this process, as well.

My obligation, as I have said, is to take all of these factors together and to weigh them and to make a determination of an appropriate sentence. And after having done so, I have concluded that a sentence at the low end of this advisory guideline sentence range, while not binding, ... does address the matter adequately; and that a low end sentence on the guideline program will be adequate in this case.

Sentencing Transcript at 13. Thereafter, the district judge sentenced Blinkinsop to an imprisonment term of 97 months and 5 years of supervised release.

Blinkinsop concedes that the sentencing judge correctly calculated his Guidelines range. He has not alleged that the judge relied on erroneous facts. The judge treated the Guidelines as advisory, and he considered the § 3553(a) factors, including the nature and circumstances of the crime in conjunction with Blinkinsop's military service and family support. In addition to the sentencing judge's explanation of Blinkinsop's sentence, his PSR advises that no factors were identified under § 3553(a) that would warrant sentencing Blinkinsop outside the advisory Guidelines range. The sentencing judge did not plainly err in carefully calculating Blinkinsop's imprisonment term at the lowest end of the Guidelines range.

B. Substantive Reasonableness

Substantive reasonableness of a sentence, reviewed for abuse of discretion, is applicable in all sentencing decisions and is not affected by failure to object. United States v. Autery, 555 F.3d 864, 871 (9th Cir.2009). Having determined that Blinkinsop's sentence was procedurally proper, we consider in our substantive-reasonableness review the “totality of the circumstances” and recognize that “[t]he sentencing judge is in a superior position to find facts and judge their import under § 3553(a) in the individual case.” Gall, 552 U.S. at 51, 128 S.Ct. 586 (citation and internal quotation marks omitted). We “ ‘assume that district judges know the law and understand their obligation to consider all of the § 3553(a) factors, not just the Guidelines.’ ” Autery, 555 F.3d at 873 (quoting Carty, 520 F.3d at 992).

This court previously has confronted the arguments relating to substantive reasonableness raised by Blinkinsop on appeal. In Carty, the defendant, convicted of sexually abusing his young niece, argued that the Guidelines sentence was “much greater than necessary” to achieve the goals of § 3553(a). 520 F.3d at 990. Like Blinkinsop's PSR, Carty's PSR advised that there was “no information concerning the offense or the...