U.S. v. Kerr

• Decision Date: 27 December 2006
• Docket Number: No. 06-2157.,06-2157.
• Parties: UNITED STATES of America, Appellee, v. Michael T. KERR, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

472 F.3d 517

UNITED STATES of America, Appellee, v. Michael T. KERR, Appellant.

No. 06-2157.

United States Court of Appeals, Eighth Circuit.

Submitted: November 13, 2006.

Filed: December 27, 2006.

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Sean R. Berry, U.S. Attorney's Office, argued, Cedar Rapids, IA, for Appellee.

Michael Kerr, Big Spring, TX, pro se.

Anne M. Laverty, Mullin & Laverty, argued, Cedar Rapids, IA, for Appellant.

Before BYE, JOHN R. GIBSON, and GRUENDER, Circuit Judges.

BYE, Circuit Judge.

Michael T. Kerr pleaded guilty to distribution of child pornography in violation of 18 U.S.C. § 2252A(a)(1) and possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). The district court¹ sentenced him to 151 months of imprisonment and ten years of supervised release. Kerr appeals challenging the validity of several special conditions of his release as well as the district court's recommendation to the Bureau of Prisons (BOP) that he participate in sex offender treatment while incarcerated. We affirm.

On October 14, 2004, FBI Innocent Images Task Force Officer James Kite downloaded a pornographic image from Kerr's computer depicting sexual intercourse between two pre-teen minors. Kerr had set up an image exchange with other computer users. He placed a notice on an Internet Relay Chat (IRC)² channel entitled #100% PRETEENGIRLSEXPICS, which offered access to pornographic images of pre-teen girls on a file server³ on Kerr's computer. The notice explained IRC users could download an image from Kerr's file server only if they first uploaded an image onto Kerr's computer. Pursuant to these instructions, Officer Kite first uploaded a non-pornographic image onto Kerr's computer and then downloaded the image in question. Due to the content of the image, the FBI obtained and executed a search warrant of Kerr's home. Subsequent forensic analysis of Kerr's computer uncovered between forty-five and fifty files containing images of child pornography, some depicting children under the age of twelve and sadomasochistic violence. Although Kerr initially denied he possessed child pornography, he eventually admitted both possession and distribution of the images. He claimed he distributed these images in an attempt to spread a computer virus to the computers of pedophiles. According to Kerr, he initiated this project in October 2004 and received several images from IRC users he intended to delete. He further claimed his "virus project" was ultimately unsuccessful and, as a result, he deleted most of the images uploaded onto his computer as well as the virus files. In response to this claim, the FBI conducted further forensic analysis of Kerr's computer which failed to corroborate his story.

At sentencing, Kerr did not dispute the charges against him, rather he again claimed he only possessed and distributed the child pornography in order to spread a computer virus. The district court rejected this claim noting "I don't believe it, and there is no objective evidence to substantiate [Kerr's] story." On appeal he concedes the district court rejected his story. At sentencing, he presented the expert report and testimony of psychologist Hollida Wakefield who concluded he was not a pedophile. She recommended Kerr receive no sex offender treatment while incarcerated or while on supervised release, as such treatment was unnecessary and would be harmful to him. The district court discounted Wakefield's testimony and report:

I also find there is no way for anyone, including Ms. Wakefield, to predict who will offend as a sex offender. Many of her — all of her conclusions — except for the testing of the IQ and the Minnesota Multiphasic Personality Inventory, all of her conclusions are based on unquestioningly accepting [Kerr's] statements without any backup. She just took them at face value, and then applied her hunches. I find that she does not have specific expertise in sexual deviance and that many of the opinions she offered are lacking in foundation. I did not find her report helpful.

The district court sentenced Kerr to the low end of the advisory guideline range of 151 to 188 months and imposed a supervised release term of ten years. In its sentencing order, the district court recommended to the BOP that he participate in sex offender treatment while incarcerated. The district court also imposed several conditions of supervised release including certain conditions: 1) requiring him to register with the sex offender registration agency in the state where he resides or works; 2) requiring him to participate in a mental health evaluation and/or treatment program, as directed by his probation officer; and 3) requiring him to obtain permission from the probation office prior to contacting minors or going to places where minors congregate. Kerr did not object to these conditions at sentencing. On appeal, he does not challenge his sentence but rather challenges the district court's recommendation to the BOP and the above-referenced terms of his supervised release. He also argues the district court improperly delegated to the probation office the decision of whether he should participate in sex offender treatment during supervised release.

Kerr first argues the district court erred in recommending to the BOP that he receive sex offender treatment while incarcerated. He asks the court to vacate the recommendation and remand for resentencing. Pursuant to 28 U.S.C. § 1291, we have jurisdiction over final decisions of district courts. As an initial matter, a district court's recommendation is not binding on the BOP. See United States v. Creed, 897 F.2d 963, 964 (8th Cir.1990) (noting the district court's recommendation that the defendant participate in alcohol treatment was not binding on the BOP). Although this is an issue of first impression in this circuit, other circuits have held such nonbinding recommendations are not final decisions and, as such, are not reviewable on appeal. See United States v. Yousef, 327 F.3d 56, 165 (2d Cir.2003) ("Because these recommendations are not binding on the [BOP], they are [not] appealable as `final decisions' under 28 U.S.C. § 1291 . . . [t]hus, we lack jurisdiction to consider these claims."); United States v. Serafini, 233 F.3d 758, 778 (3d Cir.2000) (holding a sentencing court's non-binding recommendation to the BOP is not reviewable); United States v. De La Pena-Juarez, 214 F.3d 594, 601 (5th Cir.2000) (same). We are persuaded by these decisions and hold a non-binding recommendation to the BOP is not reviewable as it is not a final decision of the district court.

Kerr next objects to several conditions of his supervised release. "A sentencing judge is afforded wide discretion when imposing terms of supervised release." United States v. Crume, 422 F.3d 728, 732 (8th Cir.2005). When a defendant fails to raise an objection to those terms at sentencing, we review the terms of supervised release for plain error. United States v. Crose, 284 F.3d 911, 912 (8th Cir.2002). "Plain error occurs if the district court deviates from a legal rule, the error is clear under current law, and the error affects the defendant's substantial rights." Id. "While the district court enjoys broad discretion in setting special conditions of supervised release, those conditions must meet the requirements of 18 U.S.C. § 3583(d)." United States v. Davis, 452 F.3d 991, 994-95 (8th Cir.2006). Under § 3583(d) the condition: 1) must 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; 2) must not involve any "greater deprivation of liberty than is reasonably necessary" to advance these goals; and 3) must be consistent with any pertinent policy statements the sentencing commission has issued.

Kerr argues the district court erred in requiring him to register as a sex offender as a condition of his supervised release. He claims this condition is not warranted as there is no evidence he is actually a sexual predator, Wakefield's testimony verified he is not a sexual predator, and Iowa law does not require persons convicted of distributing or possessing child pornography to register as sex offenders. He acknowledges the sentencing guidelines list registration as a "mandatory condition" of supervised release for sex offenses, see U.S. Sentencing Guidelines (U.S.S.G.) 5D1.3(a)(7) (2005), but argues this provision is merely advisory after United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

As a threshold matter, Kerr is incorrect when he claims the Iowa Code does not require those convicted of distributing or possessing child pornography to register as sex offenders. See Iowa Code §§ 692A.2, 692A. 1(5)(m), and 728.12 (mandating sex offender registration of those convicted of promoting or possessing child pornography as these offenses constitute "criminal offense[s] against a minor"). As for his argument there is no evidence he is a sexual predator and there is strong credible evidence contrary to this finding, this argument hinges on Wakefield's testimony and report. As is clear from the district court's comments at sentencing, however, it was not persuaded by this evidence. The district court discredited Wakefield's testimony and found her report was not helpful. A district court is not required to accept an expert's opinions during sentencing. Ramos v. Weber, 303 F.3d 934, 937 (8th Cir.2002). Because the district court refused to credit Wakefield's opinions, we should not afford them much weight on appeal. It follows these opinions should not form the sole basis for finding the district court plainly erred in its imposition of this condition. Because registration is a "mandatory condition" under the advisory guidelines, and such registration is consistent with Iowa law, we conclude the district court did not...