U.S. v. Miller

• Decision Date: 05 February 2010
• Docket Number: No. 08-4278.,08-4278.
• Citation: 594 F.3d 172
• Parties: UNITED STATES of America v. Donald R. MILLER, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

594 F.3d 172

UNITED STATES of America v. Donald R. MILLER, Appellant.

No. 08-4278.

United States Court of Appeals, Third Circuit.

Argued September 14, 2009.

Opinion Filed: February 5, 2010.

Ronald A. Krauss, Esq., [Argued], Office of the Federal Public Defender, Harrisburg, PA, Attorney for Appellant.

Theodore B. Smith, III, Esq., [Argued], Christian A. Fisanick, Esq., Office of the United States Attorney, William J. Nealon Federal Building and Courthouse, Scranton, PA, Attorney for Appellee.

Before: SLOVITER, FUENTES, and SMITH, Circuit Judges.

OPINION OF THE COURT

FUENTES, Circuit Judge:

Appellant Donald R. Miller was sentenced to thirty months' imprisonment and a lifetime term of supervised release following his conviction for possession of child pornography and possession of marijuana. The District Court imposed eight special conditions of supervised release, including a restriction on internet access, mandatory computer monitoring, and a limitation on association with minors. On appeal, Miller challenges the duration of his term of supervised release and four of the eight special conditions. We agree with Miller that the lifetime limitation on internet use is a greater restraint of liberty than is reasonably necessary and that the restriction on his association with minors is overbroad. Accordingly, we will vacate and remand to the District Court for further proceedings consistent with this opinion.

I.

In January 2004, the Federal Bureau of Investigation ("FBI") searched Miller's house after discovering that his computer had been identified (based on its IP address) as the source of images of child pornography that were uploaded onto an internet server in Utah. The FBI agents seized Miller's computer and twenty-two computer zip disks. One of the disks contained more than 1200 pornographic images. Approximately eleven of the images depicted child pornography. The adult pornography apparently included five images that could arguably be characterized as sadomasochistic. United States v. Miller, 527 F.3d 54, 78 (3d Cir.2008) ("Miller I"). The same search uncovered a small amount of marijuana in his house.

At his 2006 trial, Miller argued that he had not downloaded the child pornography images. He testified that he had never seen the images, did not knowingly copy them to the zip disk, and looked only at legal adult pornography, characterizing his collection as "[p]rimarily Playboy centerfolds." Id. at 74. He suggested that the images might have been downloaded by a computer hacker, noting that around the time that they were downloaded, he had been the victim of a billing fraud for a pornography website. A defense expert offered testimony that the images were among several hundred copied onto the zip disk in periodic intervals over a seven-hour period, indicating that they might have been copied automatically, perhaps by a computer virus. The expert also explained that a user might inadvertently download multiple image files when he believes he is downloading only one. This testimony was countered by a government agent, who noted that the images on the zip disk had been "extracted" and thus were not the type of "embedded" files described by the defense. Id. at 66. The agent also expressed doubt that anyone would hack into another person's dial-up internet connection to transmit data that would be attributed to that person's IP address, id., or that any virus existed that would download child pornography onto a person's computer, id. at 63 n. 8.

Despite Miller's defense, the jury convicted him on three counts of the five-count Indictment: (1) knowingly receiving child pornography, in violation of 18 U.S.C. § 2252A(a)(2); (2) knowingly possessing child pornography, in violation of 18 U.S.C § 2252A(a)(5)(B); and (3) possession of marijuana, in violation of 21 U.S.C. § 844(a). Miller was acquitted on two counts, transporting and shipping child pornography by computer and receiving and distributing child pornography by computer. The District Court calculated Miller's total offense level as 23, including a two-level enhancement for obstruction of justice based on his purported perjury in denying at trial that his pornography collection included any sadomasochistic images.¹ With a criminal history category of I, the advisory Guidelines range was 46 to 57 months' imprisonment. The District Court sentenced Miller to 46 months' imprisonment on the first two counts and 12 months' imprisonment on the marijuana count, to be served concurrently, and imposed a life term of supervised release for the possession of child pornography offense. At the time of the sentencing, Miller was sixty years old; he is now sixty-three years old.

In his first appeal, Miller challenged his conviction on the first two counts on several grounds, including his contention that separate convictions for receiving and possessing the same images of child pornography violated the Double Jeopardy Clause. This Court ruled in Miller's favor on the double jeopardy issue and his challenge to the obstruction of justice enhancement and remanded to the District Court to vacate one of the two child pornography convictions and resentence Miller without the obstruction of justice enhancement. Miller I, 527 F.3d at 54. Miller did not challenge the duration or conditions of his term of supervised release in his first appeal.

On remand, the District Court vacated the conviction for knowing receipt of child pornography and resentenced Miller solely on the knowing possession of child pornography and marijuana counts. Without the enhancement for obstruction of justice, Miller's total offense level was 19, resulting in an advisory Guidelines range of 30 to 37 months, with a mandatory supervised release term of five years to life pursuant to 18 U.S.C. § 3583(k). At an October 7, 2008 sentencing proceeding, the District Court sentenced Miller to 30 months' imprisonment to be followed by a life term of supervised release. The Court also imposed eight special conditions of supervised release, including four that are at issue in this appeal: Miller was required to participate in a sex offender treatment program at his own expense (Special Condition 1); he was barred from "associat[ing] with children under the age of 18, except in the presence of an adult who has been approved by the probation officer" (Special Condition 3); he was prohibited from using a computer with internet access "without the prior written approval of the [p]robation [o]fficer" (Special Condition 4); and he was required to submit to random inspections of his computer and permit the installation of software to monitor his computer use (Special Condition 7). (App. 6.) At the conclusion of the proceeding, Miller objected to these supervised release conditions, arguing that they were not "reasonably related to the offense conduct in this case." (Id. at 95.) On October 8, 2008, the District Court filed an Order formalizing the oral rulings made at the sentencing proceeding, including the vacation of the receipt of child pornography count and the entry of conviction on the possession count ("October Order"). This Order did not mention the term of supervised release. The District Court filed a Judgment setting forth the full sentence on October 15, 2008. On the same day, the District Court signed a Statement of Reasons explaining the sentence, which is dated October 7, 2008.

On October 14, 2008, Miller filed a motion to correct his sentence under Federal Rule of Criminal Procedure 35(a), challenging both the supervised release term and the special conditions. On October 20, 2008, Miller timely appealed his sentence to this Court. In a November 17, 2008 Order (the "November Order"), the District Court granted the Rule 35(a) motion in part. While acknowledging Miller's appeal, the Court stated that it still had jurisdiction to address the Rule 35(a) motion because the Government had not challenged its jurisdiction. In addition, the District Court relied on Federal Rule of Appellate Procedure 4(b)(5), which states that the filing of a notice of appeal "does not divest a district court of jurisdiction to correct a sentence under Federal Rule of Criminal Procedure 35(a)."

In substance, the November Order largely affirmed the supervised release term and the conditions imposed in the October sentencing, but it contained a much more thorough explanation of the Court's reasoning. The District Court justified the lifetime term based on the high rate of recidivism among sex offenders and a Sentencing Guidelines policy statement recommending the imposition of the statutory maximum supervised release term on convicted sex offenders, including child pornography offenders. The District Court also relied on Miller's mischaracterization of the nature of his pornography collection as "Playboy centerfold[]" images, despite his possession of five images allegedly depicting sadomasochism, and his continuing denial of any involvement in the possession of child pornography. Lastly, the District Court explained that the life-time term was not greater than reasonably necessary as it could be terminated if, in the future, there was no need to continue Miller's supervision. As to the special conditions, the District Court indicated that the factors supporting the lifetime term also provided a basis for each of the four restrictions at issue.

The November Order altered Miller's sentence in two respects. First, the District Court agreed that Special Condition 3—the bar on Miller's association with minors—was overly broad based on a non-precedential decision of this Court rejecting similar language. See United States v. Smyth, 213 Fed.Appx. 102, 106-07 (3d Cir. 2007). Therefore, the Court modified the condition to include exceptions for "brief, unanticipated, and incidental contacts" with minors and for contacts with Miller's own family members or children. (App. 107.)

Second, although disagreeing with Miller's...