U.S. v. Thompson

• Decision Date: 02 September 2011
• Docket Number: No. 10–3840.,10–3840.
• Parties: UNITED STATES of America, Appellee,v.Justin THOMPSON, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

653 F.3d 688

UNITED STATES of America, Appellee,

v.Justin THOMPSON, Appellant.

No. 10–3840.

United States Court of Appeals, Eighth Circuit.

Submitted: June 17, 2011.Filed: Sept. 2, 2011.

Richard Haile McWilliams, AFPD, argued, Jennifer L. Gilg, AFPD, on the brief, Omaha, NE, for appellant.Michael P. Norris, AUSA, argued, Omaha, NE, for appellee.Before LOKEN, BEAM, and SHEPHERD, Circuit Judges.SHEPHERD, Circuit Judge.

Justin Thompson pled guilty to receipt and distribution of child pornography in violation of 18 U.S.C. § 2252A(a)(2). The district court ¹ sentenced Thompson to 60 months imprisonment followed by 5 years of supervised release. On appeal, Thompson claims the district court erred in imposing certain special conditions of supervised release. We affirm.

I.

On January 27, 2010, Investigator Darin Morrissey of the Sarpy County Sheriff's Office identified Thompson's Internet Protocol (IP) address as one participating in the distribution of child pornography. Investigator Morrissey connected with Thompson's computer through the use of a file-sharing program and was able to browse a list of files that Thompson was offering to share with others. After determining that this list included images and videos of child pornography, Investigator Morrissey downloaded two videos from Thompson's computer that both contained sexually explicit images involving prepubescent females.

On March 16, 2010, police searched Thompson's apartment pursuant to a search warrant and discovered child pornography on a computer, two CDs, and a thumb drive, all of which belonged to Thompson. Multiple images recovered from the apartment involved prepubescent minors being sexually abused by adults. In addition, several images and one video recovered from Thompson's equipment “depicted bondage, torture, and pain.” Thompson was subsequently indicted by a grand jury and charged with the receipt and distribution of child pornography (Count I), in violation of 18 U.S.C. § 2252A(a)(2), as well as possession of child pornography (Count II), in violation of 18 U.S.C. § 2252(a)(4)(B). As part of a plea agreement, Thompson pled guilty to Count I in return for the Government's agreement to dismiss Count II.

Prior to sentencing, Thompson objected to numerous special conditions recommended by the probation office in its sentencing recommendation. Thompson objected to Special Conditions 8, 9, and 10—which restricted Thompson's interaction with minors—as unnecessary because there was no evidence before the court that Thompson had ever actually sexually abused a child. Thompson also argued that Special Conditions 13 and 15—which dealt with potential sex-offender treatment and polygraph testing—were an impermissible delegation of judicial authority to the probation officer. Special Condition 16 prohibited Thompson's possession of “pornography which includes any sexually explicit material,” and Thompson argued this condition was vague and overbroad. Finally, Thompson contended that Special Conditions 17 and 18—which dealt with approval for employment and residence changes as well as disclosure of computer restrictions for potential employers—were unnecessary.

At sentencing, the district court calculated a total offense level of 32 with a criminal history category of I, resulting in a Sentencing Guidelines range of 121 to 151 months imprisonment. However, the district court sentenced Thompson to 60 months imprisonment and 5 years of supervised release in light of an agreement between the parties pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure. The court then imposed many of the special conditions recommended by the Probation Office without change, but it altered the wording of some special conditions in response to Thompson's objections. Thompson appeals the imposition of nine special conditions of supervised release.

II.

We review for abuse of discretion the imposition of those special conditions to which Thompson objected at sentencing.² United States v. Boston, 494 F.3d 660, 667 (8th Cir.2007). A district court “is afforded wide discretion when imposing terms of supervised release.” United States v. Simons, 614 F.3d 475, 479 (8th Cir.2010) (quoting United States v. Crume, 422 F.3d 728, 732 (8th Cir.2005)). But this discretion is not absolute as 18 U.S.C. § 3583(d) requires that each special condition be “reasonably related to the nature and circumstances of the offense and the history and characteristics of the defendant, deterrence of criminal conduct, protection of the public, and treatment of the defendant's correctional needs.” United States v. Mayo, 642 F.3d 628, 631 (8th Cir.2011) (per curiam). Moreover, conditions imposed on a defendant's supervised release must involve “no greater deprivation of liberty than is reasonably necessary” and “must be consistent with any pertinent policy statements issued by the sentencing commission.” Simons, 614 F.3d at 479 (quoting Crume, 422 F.3d at 733). To ensure that each special condition imposed satisfies these requirements, we also require the district court to “make an individualized inquiry into the facts and circumstances underlying a case and make sufficient findings on the record so as to ensure that the special condition satisfies the statutory requirements.” United States v. Wiedower, 634 F.3d 490, 493 (8th Cir.2011) (internal quotation omitted). With these requirements in mind, we consider each of Thompson's objections in turn.

A.

Thompson first argues that the district court abused its discretion in imposing Special Conditions 8, 9, and 10. Special Condition 8 requires Thompson to “report all incidental contact with children to the U.S. Probation Officer” and to “seek and receive approval from the Probation Officer before residing with any person under the age of 18.” Special Condition 9 prohibits Thompson from “access[ing] or com[ing] within 500 feet of schools, school yards, parks, arcades, playgrounds, amusement parks, or other places used primarily by children under the age of 18 unless approved in advance by the U.S. Probation Officer.” Finally, Special Condition 10 states that Thompson “shall not be employed in, or participate in, any volunteer activity that involves contact with children under the age of 18, except under circumstances approved in advance by the U.S. Probation Officer.” Thompson claims that the imposition of each of these conditions was an abuse of discretion because there were no facts before the district court that Thompson had abused children in the past and the conditions exact a greater deprivation of liberty than is reasonably necessary.

In United States v. Mickelson, we faced a similar challenge where the defendant was convicted of receiving child pornography and had no prior history of sexually abusing minors. 433 F.3d 1050, 1051 (8th Cir.2006). As a special condition of his supervised release, the defendant was prohibited from having “contact with children under the age of 18 without the prior written consent of the probation office.” Id. at 1051. On appeal, we denied the contention that the special condition was “unnecessary and unreasonable,” and held that “requiring prior approval before a convicted sex offender has contact with minors is a reasonable means of ensuring that such contact remains appropriate.” Id. at 1056–57; see also United States v. Kerr, 472 F.3d 517, 522–23 (8th Cir.2006).

We reach a similar conclusion, holding that the district court did not abuse its discretion in imposing Special Conditions 8, 9, and 10. The record supports the district court's finding that restricting Thompson's interaction with minors “is reasonably necessary for the purposes set forth in section 3553(a)[.]” 18 U.S.C. § 3583(d)(1). As the Government noted at sentencing, many of the images found on Thompson's computer involved the molestation of prepubescent minors by adults through anal, oral, and vaginal penetration. Moreover, unlike the defendant in Mickelson, Thompson pled guilty to not only receiving child pornography, but to distributing it as well. This is a more serious offense than mere possession. See Kerr, 472 F.3d at 523. In light of these facts, the district court did not abuse its discretion in concluding that Special Conditions 8, 9, and 10 were reasonably necessary.

Furthermore, Special Conditions 8, 9, and 10 do not impose a greater deprivation of liberty than is reasonably necessary because they are not complete prohibitions on Thompson's interaction with minors. Each condition allows for Thompson to seek an exception to the condition through approval of his probation officer. Cf. United States v. Stults, 575 F.3d 834, 853 (8th Cir.2009); Mickelson, 433 F.3d at 1057. Thus, we conclude the district court did not abuse its discretion.

B.

Thompson next challenges Special Conditions 13, 14, and 15, claiming these conditions constitute an impermissible delegation of judicial authority to the probation officer.³ Special Condition 13 requires, among other things, that Thompson “may be required to undergo a sex offense-specific evaluation and participate in a sex offender treatment and/or mental health treatment program approved by the U.S. Probation Officer.” Special Condition 14 states that Thompson “may be required to submit to an initial polygraph examination and subsequent maintenance testing, at intervals to be determined by the U.S. Probation Officer.” Special Condition 15 provides that Thompson “may be required to sign releases of information to allow all professionals involved ... to communicate and share documentation with each other.”

Thompson's argument as to these conditions fails. Although we have recognized that a special condition of supervised release can potentially constitute an impermissible delegation of judicial authority, see United States v. Kent, 209 F.3d 1073, 1078–79 (8th Cir.2000), such an impermissible delegation occurs only where the district court gives an “affirmative indication” that...