U.S. v Paul
| Decision Date | 18 December 2001 |
| Docket Number | 5,0041299 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee v. RONALD SCOTT PAUL, Defendant-AppellantUNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT |
| Court | U.S. Court of Appeals — Fifth Circuit |
Appeal from the United States District Court for the Southern District of Texas
Before KING, Chief Judge, DAVIS, Circuit Judge, and VANCE, District Judge.1
After pleading guilty to a charge of knowingly possessing child pornography in violation of 18 U.S.C. § 2252A, Defendant-Appellant Ronald Scott Paul was sentenced to five years of imprisonment and three years of supervised release pursuant to section 2G2.2 of the United States Sentencing Guidelines. Paul appeals to this court, challenging the district court's sentencing determination, the conditions of his supervised release, and the constitutionality of the statute of conviction. For the following reasons, we AFFIRM Paul's conviction and his sentencing determination, including the conditions of supervised release.
On May 8, 2000, Defendant-Appellant Ronald Scott Paul took his personal computer to Electronic Services and Repair, a small computer repair business in Port Isabel, Texas. While working on the computer, a technician discovered child pornography on the hard drive and contacted the Federal Bureau of Investigations ("FBI"). The FBI's background check on Paul revealed a 1986 offense involving child pornography. After Paul had retrieved his computer from the repair technician, FBI agents searched Paul's residence pursuant to a valid warrant. The agents seized the computer, which contained a large number of files with images of child pornography that had been downloaded from the Internet. The agents also seized assorted photographs of children, magazines with nude photographs of children and adults, books with pictures of nude prepubescent boys, videotapes of random children filmed in public settings, a large bag of children's clothes, and several children's swimsuits covered with sand.
Additionally, the agents seized a medical bag containing basic medical supplies and Spanish-language flyers advertising lice removal for children. In the flyers, Paul informed parents that he would spray their children with a product that kills lice. The flyers also stated that Paul would conduct a complete physical examination on each child for "overall health," which necessarily required the child to completely undress. The agents also found between ten and twenty personal cameras in Paul's residence.2
Further review of Paul's computer revealed electronic mail communications ("e-mails") discussing sources of child pornography, including websites, chat rooms, and newsgroups that allowed both receiving and sending of pornographic images. In one of these e-mails, Paul discussed how easy it was to find "young friends" by scouting single, dysfunctional parents through Alcoholics Anonymous or local welfare offices and winning their friendship, thereby securing access to their young sons.
On July 17, 2000, Paul pled guilty to one charge of knowingly possessing a computer hard drive with three or more images of child pornography that traveled through interstate commerce, in violation of the Child Pornography Prevention Act. See 18 U.S.C. § 2252A(a)(5)(B) (1994). The government offered four images as samples of the child pornography that Paul possessed. Paul admitted that these exhibits were images he received from the Internet and stored on his computer hard drive.
After Paul pled guilty to possession of child pornography and was rearraigned, the court ordered the probation office to prepare a presentence report ("PSR"). Applying section 2G2.2 of the Sentencing Guidelines3 ("section 2G2.2"), the PSR determined that Paul's total offense level was 35. See U.S. Sentencing Guidelines Manual § 2G2.2 (1998). The PSR then factored in Paul's criminal history category (category I), which resulted in an imprisonment range of 121 to 151 months. However, the PSR noted that the statutory maximum penalty was 60 months.
At the sentencing hearing, Paul objected to the PSR's use of section 2G2.2, arguing that the district court should have applied section 2G2.44 instead because he was charged with possession of child pornography rather than trafficking in child pornography.5 The probation officer and the government both maintained that section 2G2.2 was the appropriate guideline because a cross-reference in section 2G2.4 requires use of section 2G2.2 if there is indication of "intent to traffic."6 See U.S. Sentencing Guidelines Manual § 2G2.4 (1998). To support its claim that Paul intended to traffic in child pornography, the government offered five e-mails from Paul's computer.7 Paul argued that these e-mails were inadequate to demonstrate trafficking or intent to traffic, as the messages contain no direct statements indicating that he sent images through the mail or the Internet.
The district court overruled Paul's objection, determining that pursuant to the section 2G2.4 cross-reference, section 2G2.2 was the appropriate guideline. Because the resulting sentence was greater than the statutory maximum, the district court imposed the statutory maximum sentence of five years' imprisonment, plus a three-year term of supervised release, and a special assessment fee of $100.
The district court imposed a number of special conditions on Paul's supervised release term. He must "undergo a complete psychological evaluation and/or participate in a sex offender/mental health program as deemed necessary and approved by the probation officer." Paul is also directed to avoid "direct and indirect contact with minors," as well as "places, establishments, and areas frequented by minors," and is prohibited from "engaging in any paid occupation or volunteer service which exposes him either directly or indirectly to minors." The conditions further provide that Paul "shall not have[,] possess or have access to computers, the Internet, photographic equipment, audio/video equipment, or any item capable of producing a visual image." Finally, Paul is instructed to "register with the sex offender registration in any state where [he] . . . resides, is employed, carries on a vocation, or is a student, as directed by the probation officer and as required by law."
On appeal, Paul challenges his conviction and sentence on three grounds. First, Paul argues that the statute of conviction, the Child Pornography Prevention Act ("CPPA"), is unconstitutionally vague and overbroad. Second, he argues that the district court improperly applied the Sentencing Guidelines in using section 2G2.2 to determine his base offense level. Finally, Paul challenges the conditions of his supervised release, arguing that he was not given pre-sentence notice of the requirement that he register as a sex offender and that the district court abused its discretion by imposing special conditions restricting his contact with minors and his ability to access "computers, the Internet, photographic equipment, audio-video equipment, or any item capable of producing a visual image."
Paul contends that the language in 18 U.S.C. § 2256(8)(B) defining "child pornography" to include an image that "appears to be" or "conveys the impression" of minors engaging in sexually explicit conduct is impermissibly vague and overbroad under the First Amendment. He acknowledges that this circuit's recent precedent forecloses this facial challenge. See United States v. Fox, 248 F.3d 394, 404-07 (5th Cir. 2001) (). However, Paul points out that the Supreme Court recently granted certiorari in Free Speech Coalition v. Reno, 198 F.3d 1083 (9th Cir. 1999), cert. granted sub nom., Ashcroft v. Free Speech Coalition, 121 S.Ct. 876 (2001), to consider whether this language in the CPPA is unconstitutionally vague or overbroad. Thus, he asks this court to postpone deciding the issue until the Supreme Court decides Free Speech Coalition.
We decline this invitation. A facial challenge to the CPPA is foreclosed by Fox, which is the binding law of this circuit. Moreover, as the government correctly points out, the Supreme Court's resolution of Free Speech Coalition will not affect the validity of Paul's conviction, as he was not convicted under the portions of the statute that are under challenge in that case. Paul's indictment specifically references the definition of "child pornography" contained in 18 U.S.C. § 2256(8)(A), which defines child pornography as any visual depiction of sexually explicit conduct where "the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct." This definition, unlike the definition contained in § 2256(8)(B) that is at issue in Free Speech Coalition, does not contain the language that Paul asserts is constitutionally problematic.
Delaying resolution of this constitutional challenge until after the Supreme Court decides Free Speech Coalition would be neither necessary nor useful, as the charges on which Paul was indicted and to which he pled guilty reference a definitional provision of the statute that is not challenged in Free Speech Coalition. Accordingly, we affirm Paul's conviction under the CPPA.
This court reviews the district court's application of the Sentencing Guidelines de novo and its factual findings for clear error. See United States v. Stevenson, 126 F.3d 662, 664 (5th Cir. 1997). We "give due deference to the district court's application of the guidelines to the facts." 18 U.S.C. § 3742(e) (1994).8
"When sentencing a defendant, the district court must first determine which offense guideline section is most applicable to the offense of...
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...the defendant with needed training, medical care, or other correctional treatment in the most effective manner.United States v. Paul, 274 F.3d 155, 164-65 (5th Cir. 2001) (citations omitted). This court may affirm a special condition "where the [district] court's reasoning can be inferred a......