U.S. v. Heckman

• Decision Date: 11 January 2010
• Docket Number: No. 08-3844.,08-3844.
• Citation: 592 F.3d 400
• Parties: UNITED STATES of America v. Arthur William HECKMAN, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

592 F.3d 400

UNITED STATES of America v. Arthur William HECKMAN, Appellant.

No. 08-3844.

United States Court of Appeals, Third Circuit.

Argued September 30, 2009.

Opinion filed: January 11, 2010.

Sarah S. Gannett, Assistant Federal Defender, Christy Unger, Esquire (Argued), David L. McColgin, Assistant Federal Defender, Leigh M. Skipper, Chief Federal Defender, Defender Association of Philadelphia, Federal Court Division, Philadelphia, PA, for Appellant.

Michael L. Levy, United States Attorney, Robert A. Zauzmer (Argued), Assistant United States Attorney, Sherri A. Stephan, Assistant United States Attorney, Office of the United States Attorney, Philadelphia, PA, for Appellee.

Before: RENDELL, AMBRO and WEIS, Circuit Judges.

OPINION OF THE COURT

AMBRO, Circuit Judge.

Arthur William Heckman was indicted and pled guilty to one count of transporting child pornography, in violation of 18 U.S.C. § 2252(a)(1).¹ He was sentenced to 180 months' imprisonment, followed by a lifetime term of supervised release. On appeal, Heckman challenges three "Special Conditions of Supervision" imposed by the District Court for the remainder of Heckman's life: 1) an unconditional ban on Internet access; 2) a requirement that he participate in a mental health program; and 3) a restriction on any interaction with minors.

While we affirm the mental health condition, we vacate the other challenged conditions and remand for resentencing consistent with this opinion.

I. Facts

Heckman emailed 18 pictures of minors engaging in sexually explicit conduct to a stranger in an Internet chat room. Though Heckman believed the recipient to be a person who shared his interest in child pornography, he was actually transmitting the images to an undercover special agent with the Federal Bureau of Investigation ("FBI").

In October 2003, the special agent entered an Internet chat room, which contained several Internet users interested in child pornography and sexual encounters with minors. In doing so, the agent posed as another user, posting the following message: "[R]oom topics vids to trade." Under the screen name "n3zzu2," Heckman responded, "[W]ish I did." Heckman and the special agent then discussed the possibility of trading images of children engaged in sexual activity. Shortly after this exchange, the special agent received an email from Heckman, with seven images of children attached, each sexually explicit. The special agent responded to Heckman with a corrupted file, entitled "boyluv.wmv." Heckman replied with 11 additional images. Shortly thereafter, Heckman sent an email to the special agent complaining that the agent's file was corrupted.

In response to a request by the FBI, America Online disclosed that the screen name "n3zzu2" belonged to "Arthur Heckman," whereupon he was arrested. Heckman waived his Miranda rights and admitted to receiving and then transmitting 18 images of child pornography.²

II. Procedural History

A grand jury returned a one-count indictment charging Heckman with transporting child pornography. He pled guilty in April 2008. At sentencing, both parties agreed that Heckman's Sentencing Guidelines range was between 70 and 87 months. Because he had prior convictions involving the sexual abuse of minors, however, a statutory minimum of 180 months applied. See 18 U.S.C. § 2252(b)(1). The Government agreed to the mandatory minimum sentence, but only if it ran consecutively to another 180-month sentence that Heckman was already serving in Florida. The Government argued that, regardless of the sentence imposed, lifetime supervised release was necessary to protect the public from Heckman. Given his age (48 at the time of his guilty plea), Heckman requested that his sentence be concurrent with the Florida sentence.

The District Court agreed with the Government. It sentenced Heckman to the mandatory minimum sentence of 180 months' imprisonment, to run consecutively to the 180-month term imposed on him in September 2006 by the Florida state court. The Court also sentenced Heckman to lifetime supervised release and a nominal fine of $100. The following special conditions of lifetime supervised release are at issue in Heckman's appeal:

The defendant is prohibited from access to any Internet service provider, bulletin board system, or any other public or private computer network.

...

The defendant shall participate in a mental health program for evaluation and/or treatment as directed by the United States Probation Office. The defendant shall remain in treatment until satisfactorily discharged and with the approval of the United States Probation Office, including sex offender treatment.

The defendant shall follow the directions of the United States Probation Office regarding any contact with children of either sex, under the age of 18. The defendant shall not obtain employment or perform volunteer work which includes, as part of its job/work description, contact with minor children.

App. 6.

In explaining its reasons for Heckman's sentence, the Court reviewed each of the relevant sentencing factors under 18 U.S.C. § 3553(a).³ The Court began by noting that a 180-month, consecutive sentence was necessary, given Heckman's extensive criminal history, a history "almost unbroken from the time he was nineteen years old until today at age forty-eight." App. 49-50. It noted that this was Heckman's "eighth contact with the criminal justice system," with "a strong thread ... of sexual offenses to minors and child pornography consistent throughout this criminal record." Id. at 47, 50.

The Court also considered the gravity of the harm that resulted from the dissemination of child pornography itself. It observed, "[T]he children depicted in these images are violated every time ... an individual looks at their photographs and every time someone shares those photographs documenting their abuse." Id. at 50. Furthermore, "once published on the Internet, they cannot be taken back." Id.

From there, the Court turned to deterrence, noting that "[n]othing has deterred this defendant from his lifetime path of exploiting children." Id. Indeed, "[i]t appears that [Heckman] took every opportunity he could find to sexually abuse children. He was not deterred by his arrests. He was not deterred by his convictions. He was not deterred by his sentencing on parole violations, and he was not deterred by any treatment he may have received." Id. at 52. Given these reasons, it rejected Heckman's request for a concurrent sentence.

Finally, the Court turned to its reasons for sentencing Heckman to lifetime supervised release. It did not address its rationale for each of the special conditions, individually. Instead, it considered the need for lifetime supervised release generally, especially in light of Heckman's decades-long record of child exploitation. The Court explained, "[G]iven [Heckman's] proclivity for committing sexual offenses involving minors and child pornography and his apparent inability to control himself, I think it's essential from the point of view of deterrence ... [,] and ... protecting the public, that this defendant be supervised for the rest of his natural life." Id. at 56-57. Neither Heckman nor his counsel objected to any of the conditions of supervised release imposed.

Heckman filed a timely appeal that challenged the special conditions of his supervised release.

III. Jurisdiction and Standard of Review

The District Court had jurisdiction to hear this case under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291 as an appeal from a final decision of the District Court. We also have jurisdiction under 18 U.S.C. § 3742, as an appeal of a sentence imposed under the Sentencing Reform Act of 1984.

Ordinarily, a District Court's sentence is reviewed for "abuse of discretion." United States v. Martinez, 785 F.2d 111, 113 (3d Cir.1986). When, as in this case, no objection was made to the conditions imposed by the Court at the sentencing hearing, its decision is reviewed for "plain error." United States v. Evans, 155 F.3d 245, 248 (3d Cir.1998). A "plain error" is an "`error' that is `plain' and ... `affect[s] substantial rights.'" United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (quoting Fed.R.Crim.P. 52(b)). "For a `plain error' to "affect[] substantial rights," it "must have affected the outcome of the district court proceedings."" Id. Even if so, the error must also seriously affect "`the fairness, integrity[,] or public reputation of judicial proceedings.'" Id. (quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985)).

IV. Analysis

Though district courts have broad discretion in fashioning special conditions of supervised release, this discretion is not unfettered. "[S]uch conditions must be `reasonably related to the factors set forth in [§ 3553(a)]' and must `involve[] no greater deprivation of liberty than is reasonably necessary' to deter future crime, protect the public, and rehabilitate the defendant." United States v. Thielemann, 575 F.3d 265, 272 (3d Cir.2009) (quoting 18 U.S.C. § 3583(d)(1)-(2)). Furthermore, "courts of appeals have consistently required district courts to set forth factual findings to justify special ... conditions." United States v. Voelker, 489 F.3d 139, 144 (3d Cir.2007) (internal quotations omitted). Nevertheless, we "may ... affirm [a special] condition if we can ascertain any viable basis for the ... restriction in the record before the District Court ... on our own." Id. (internal quotations omitted). In the end, only a "condition with no basis in the record, or with only the most tenuous basis, will inevitably violate § 3583(d)(2)'s command that such conditions involve no greater deprivation of liberty than is reasonably necessary." Id. (internal quotations omitted).

We consider each of the challenged conditions in turn.

A. The Unconditional Ban on Internet Access

As a special condition of his supervised release,...