U.S. v. Davis

• Decision Date: 11 July 2006
• Docket Number: No. 05-3738.,05-3738.
• Parties: UNITED STATES of America, Appellee, v. Mark T. DAVIS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

452 F.3d 991

UNITED STATES of America, Appellee, v. Mark T. DAVIS, Appellant.

No. 05-3738.

United States Court of Appeals, Eighth Circuit.

Submitted: March 16, 2006.

Filed: July 11, 2006.

Stephen Carl Moss, argued, Federal Public Defender, Kansas City, MO, for appellant.

Katharine Fincham, argued, Asst. U.S. Attorney, Kansas City, MO, for appellee.

Before ARNOLD and SMITH, Circuit Judges, and MAGNUSON,¹ District Judge.

ARNOLD, Circuit Judge.

Mark Davis pleaded guilty to receiving child pornography. See 18 U.S.C. § 2252(a)(2). At sentencing, Mr. Davis moved to withdraw his plea. The district court denied the motion, holding that there was no fair and just reason for a withdrawal. On appeal, Mr. Davis challenges that ruling as well as a condition of supervised release forbidding him from having any unsupervised contact with minors. For reasons that follow, we affirm Mr. Davis's conviction but modify the condition of supervised release.

I.

As part of an investigation into the online distribution of child pornography, FBI agents came across what is known as a Yahoo! Group that was named "secret_girlzz." In that group, the agents found several images of child pornography that had been uploaded from a personal computer by a person using the user ID "newone31313." Yahoo! company records revealed that this user ID belonged to Mr. Davis. Mr. Davis admitted to agents that he had participated in Yahoo! Groups and had received child pornography via email. Agents searched various computer hard drives that Mr. Davis owned and found sexually explicit images of minors on them.

At the hearing at which Mr. Davis pleaded guilty, he was represented by Ronald Hoskins, an attorney whom he had retained several months earlier. During the plea colloquy, the district court asked Mr. Davis whether he was satisfied with Mr. Hoskins's performance as his attorney. Mr. Davis acknowledged that Mr. Hoskins had followed his instructions, returned his telephone calls, and investigated the circumstances of his case; he concluded by saying that he had no complaints about Mr. Hoskins's services. The district court accepted Mr. Davis's plea of guilty.

And then Mr. Hoskins disappeared. The probation office tried to send him a copy of the pre-sentence report but received no reply, and Mr. Davis complained that he had not heard from his attorney. The court scheduled a hearing to address the difficulty, and when Mr. Hoskins failed to show up, the court appointed an attorney from the Federal Public Defender's office in his place.

II.

At the beginning of the sentencing hearing, Mr. Davis sought to withdraw his guilty plea so that he could challenge the admissibility of the statements and evidence that the prosecution said that it would have introduced against him at trial. The district court denied Mr. Davis's request. Mr. Davis argues for the first time on appeal that the district court erred in doing so because Mr. Hoskins's disappearance, as well as his failure to seek suppression of the statements and evidence against Mr. Davis, amounted to ineffective assistance of counsel.

A district court may permit a defendant to withdraw a guilty plea before he or she is sentenced if the defendant shows a fair and just reason for the withdrawal. Fed.R.Crim.P. 11(d)(2)(B). Where, as here, a district court determines that there is no fair and just reason for withdrawing the plea, the motion is denied. United States v. Austin, 413 F.3d 856, 857 (8th Cir.2005). If the court concludes that a fair and just reason does exist for withdrawal, it will inquire further into the particular circumstances before deciding whether to grant the motion. See United States v. Nichols, 986 F.2d 1199, 1201 (8th Cir.1993). We generally review the denial of a motion to withdraw a guilty plea for an abuse of discretion. Austin, 413 F.3d at 857.

But we note that ineffective-assistance-of counsel claims, such as the one that Mr. Davis presents, are "generally not a basis for direct appeal and instead should be properly raised in a 28 U.S.C. § 2255 action." United States v. Soriano-Hernandez, 310 F.3d 1099, 1105 (8th Cir. 2002). We consider such arguments on direct appeal only where the record has been fully developed, where counsel's ineffectiveness is readily apparent, or where to delay consideration of the claim would lead to a plain miscarriage of justice. United States v. Cook, 356 F.3d 913, 919-20 (8th Cir.2004). No such exceptional circumstances exist here. The record on this issue is not developed at all. As to whether there is an apparent sixth-amendment violation, we fail to see how Mr. Hoskins's disappearance necessarily affected the quality of the representation that he did provide. We therefore conclude that this issue is more properly raised in a separate motion under § 2255. United States v. Cain, 134 F.3d 1345, 1352 (8th Cir.1998).

III.

Mr. Davis also challenges a special condition of his supervised release that bars him from having any unsupervised contact with his own daughter. The district court imposed a term of three years' supervised release on Mr. Davis, during which time he cannot "associate or have any [unsupervised] contact ... with persons/females/males under the age of 18." Any supervised contact that he has with such minors must be "in the presence of a responsible adult who is aware of the nature of the defendant's background and current offense and who has been approved by the Probation Office."

Because Mr. Davis did not make a timely objection to the condition, we review it for plain error. United States v. Ristine, 335 F.3d 692, 694 (8th Cir.2003). Plain error exists if the district court deviates from a legal rule, the error is clear under current law, and the error affects substantial rights. Id. In most cases, for an error to affect substantial rights it must affect the outcome of the proceedings. United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). We will correct such errors when they "`seriously affect the fairness, integrity or public reputation of judicial proceedings.'" Id. at 736, 113 S.Ct. 1770 (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 80 L.Ed. 555 (1936)).

While the district court enjoys broad discretion in setting special conditions of supervised release, United States v. Andis, 333 F.3d 886, 893 (8th Cir.2003) (en banc), cert. denied, 540 U.S. 997, 124 S.Ct. 501, 157 L.Ed.2d 398 (2003), those conditions must meet the requirements of 18 U.S.C. § 3583(d). Section 3583(d) first requires that the condition be "reasonably related" to the nature and characteristics of the offense and the defendant, the deterrence of criminal conduct, the protection of the public from any further crimes of the defendant, and the defendant's correctional needs. 18 U.S.C. §§ 3583(d)(1), 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D); United States v. Crume, 422 F.3d 728, 732-33 (8th Cir.2005). Second, the condition must not involve any "greater deprivation of liberty than is reasonably necessary" to advance deterrence, protect the public from further crimes by the defendant, and promote the defendant's correctional needs. 18 U.S.C. §§ 3583(d)(2), 3553(a)(2)(B), (a)(2)(C) (a)(2)(D). Finally, the condition must be consistent with any pertinent policy statements that the sentencing commission has issued. 18 U.S.C. § 3583(d)(3).

Mr. Davis argues that because there is no evidence that he has abused a child, the condition interferes with his parental rights to a greater degree than is reasonably necessary. The relationship between a parent and child is a fundamental liberty interest protected by the due process clause. Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978); Meyer v. Nebraska, 262 U.S. 390, 399-401, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). Where a condition of supervised release would impose "sweeping restrictions on important constitutional rights," we review the condition more closely. Crume, 422 F.3d at 733.

The existence of a constitutionally protected liberty interest, however, does not render impermissible any condition that would interfere with the parent-child relationship. For instance, we have upheld conditions requiring defendants to ask for and receive the permission of their probation officer before contacting their minor children. See, e.g., United States v. Mark, 425 F.3d 505, 507-08 (8th Cir.2005); Crume, 422 F.3d at 733-34. But a court may not categorically impose such a condition in every child pornography case that comes before it; since the relevant statutory and constitutional considerations look to whether the condition is more restrictive than what is needed to satisfy the governmental interest in a specific case, the district court must decide whether to impose such a condition based on specific facts.

We conclude that the application of the condition at issue to Mr. Davis's own child amounts to plain error. Federal law requires the district courts to consider the "nature and circumstances of the offense and the history and characteristics of the defendant" when crafting a special condition of supervised release. See 18 U.S.C. §§ 3553(a)(1), 3583(d)(1); cf. United States v. Heidebur, 417 F.3d 1002, 1004-05 (8th Cir.2005). That inquiry must take place on an individualized basis; a court may not impose a special condition on all those found guilty of a particular offense. The district court's failure to look at the specific facts at hand when gauging the propriety of the condition was therefore clear error.

We believe that such an individualized analysis would have affected the outcome of the proceeding. There is no evidence in the record that Mr. Davis has ever sexually abused a child or that he would try to abuse his daughter once released from prison. Because no such evidence exists, a condition of supervised release that limits Mr. Davis's access to his daughter is not reasonably necessary either to protect Mr. Davis's daughter or to...