U.S. v. Wiedower

• Decision Date: 16 February 2011
• Docket Number: No. 09–3192.,09–3192.
• Citation: 634 F.3d 490
• Parties: UNITED STATES of America, Appellee,v.Christopher WIEDOWER, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

634 F.3d 490

UNITED STATES of America, Appellee,

v.Christopher WIEDOWER, Appellant.

No. 09–3192.

United States Court of Appeals, Eighth Circuit.

Submitted: Nov. 15, 2010.Filed: Feb. 16, 2011.

Angela L. Pitts, Assistant Federal Public Defender, Fayetteville, AR, for appellant.Karen Whatley, Assistant United States Attorney, Little Rock, AR, for appellee.Before RILEY, Chief Judge, MELLOY and GRUENDER, Circuit Judges.MELLOY, Circuit Judge.

Pursuant to a written plea agreement, Christopher Wiedower (“Wiedower”) pled guilty to possession of child pornography, in violation of 18 U.S.C. § 2252. The district court sentenced Wiedower to forty-one months of incarceration, followed by five years of supervised release. Wiedower appeals five conditions of his supervised release. We affirm in part and reverse in part.

I.

On February 23, 2006, FBI agents contacted Wiedower regarding the use of Wiedower's credit card to try to access a child pornography website in July of 2001. During the ensuing conversation, Wiedower consented to the search of his computer. The government subsequently searched the computer and found two images and three short videos of child pornography. More specifically, the government found one lascivious image of a naked prepubescent minor and one image and three videos of prepubescent minors engaging in sexual acts with adults. When confronted, Wiedower stated that he received the images in a fetish chat room and that he looked for additional child pornography “about every two weeks.” Wiedower also stated that he had been looking at child pornography for about a year. Wiedower denied, however, that he ever used his credit card to access any child pornography sites, claiming that any such charges were unauthorized. Wiedower further denied ever distributing any child pornography. Finally, Wiedower denied any direct sexual contact with minors and asserted that he had replaced child pornography with online gaming.

On September 3, 2009, after pleading guilty to one count of possession of child pornography, Wiedower appeared before the district court for sentencing. At the sentencing hearing, the district court rejected Wiedower's request for probation and sentenced him to forty-one months of incarceration. The district court also imposed five years of supervised release with numerous conditions of supervision, including: (1) a requirement that Wiedower participate in sexual-offender treatment, which would involve submitting to polygraph testing; (2) a ban on the use of any computer, whether connected to the internet or not, without the prior approval of the probation office; (3) a ban on any online gaming unless “otherwise indicated in the sex offender treatment plan”; (4) a ban on possessing or viewing any “form of media containing pornographic images or sexually explicit material”; and (5) a ban on contacting any minors without prior approval or entering any place “where children frequently congregate,” such as theaters and theme parks. Wiedower subsequently objected to both the condition on sex-offender treatment and “anything regarding the computer internet access.” The district court summarily overruled the objections. Thereafter, the district court concluded the hearing.

II.

Wiedower now appeals the imposition of these five conditions of supervised release, arguing that each condition is not reasonably related to the sentencing factors articulated by Congress in 18 U.S.C. § 3553(a). Wiedower also challenges each condition on the ground that the district court failed to provide sufficient individualized findings. We agree in part and address each of the conditions in turn.

The district court enjoys broad discretion when imposing conditions of supervised release, provided that each condition: “1) is reasonably related to the sentencing factors set forth in 18 U.S.C. § 3553(a); 2) involves no greater deprivation of liberty than is reasonably necessary for the purposes set forth in § 3553(a); and 3) is consistent with any pertinent policy statements issued by the Sentencing Commission.” United States v. Bender, 566 F.3d 748, 751 (8th Cir.2009) (internal quotation marks omitted). “Among the purposes set forth in § 3553(a) are deterrence, protection of the public, and effective provision, in the most effective manner, of needed educational or vocational training, medical care, or other correctional treatment to the defendant.” United States v. Mark, 425 F.3d 505, 507 (8th Cir.2005). When crafting a special condition of supervised release, the district court must 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. Curry, 627 F.3d 312, 315 (8th Cir.2010). The district court “may not impose a special condition on all those found guilty of a particular offense.” United States v. Davis, 452 F.3d 991, 995 (8th Cir.2006).

A.

Wiedower first challenges the condition of supervised release requiring him to participate in sexual-offender treatment and submit to polygraph testing. Since Wiedower objected to this condition at the time of sentencing, we review its imposition for abuse of discretion. United States v. Simons, 614 F.3d 475, 478 (8th Cir.2010). “A district court abuses its discretion and imposes an unreasonable sentence when it fails to consider a relevant and significant factor, gives significant weight to an irrelevant or improper factor, or considers the appropriate factors but commits a clear error of judgment in weighing those factors.” United States v. Asalati, 615 F.3d 1001, 1006 (8th Cir.2010) (internal quotation marks omitted).

Wiedower argues that the district court abused its discretion in imposing this condition because: “Other than the nature of his conviction, the record is void of any evidence indicating sexual offender treatment and polygraph testing is warranted.” Wiedower further argues that the district court ordered sex-offender treatment without making any individualized findings that such treatment would serve the purposes of § 3553(a). Instead, Wiedower asserts, the district court imposed this condition on him based upon a generalized assessment of sex offenders. We disagree.

“In order to impose a condition of participation in mental health treatment, the district court must have reason to believe the defendant needs such treatment.” United States v. Conelly, 451 F.3d 942, 945 (8th Cir.2006). Here, the district court found that Wiedower was in need of sex-offender treatment because of Wiedower's level of addiction to child pornography, stating:

So I've taken that into account in looking at Mr. Wiedower's particular circumstance. He didn't have the enormous number of images that some defendants have had. On the other hand, he said that he had been looking at them regularly for a year, and there's some evidence, since he had the credit card charge back to 2001, that it is a more deeply rooted problem for him than might otherwise be the case. And I do think that he needs correctional treatment to help him deal with that problem. And I don't think it's easy for someone who has that particular sexual attraction to overcome it.

The evidence before the district court supports this finding. Beyond the facts the district court mentioned, Wiedower admitted to receiving the child pornography while in a fetish chat room and while engaged in conversations over Yahoo messenger, thereby indicating that Wiedower had digressed into contacting others personally to obtain more child pornography. Additionally, the substantial youth of the prepubescent minors in the images and videos found on Wiedower's computer reveal a heightened need for mental-health treatment. Moreover, while the district court did not make any specific findings on the need for polygraph testing, the district court did, in the preceding excerpt, indicate that Wiedower was not being candid about his level of involvement with child pornography and that this lack of candor was a factor in crafting Wiedower's sentence. The record strongly supports the district court's conclusion, and we believe that the district court's analysis is sufficient to sustain the polygraph-testing requirement. Accordingly, we find that the district court did not abuse its discretion in ordering sex-offender treatment with polygraph testing.

B.

Wiedower next challenges the broad ban on his use of a computer and the more specific prohibition on online gaming. Since Wiedower objected to these conditions through challenging any “internet” restrictions, we also review these two conditions for abuse of discretion.

Wiedower argues that the district court abused its discretion in restricting the use of computers and the internet because these conditions are not reasonably related to the sentencing factors in § 3553(a). According to Wiedower, the record only establishes that he used his computer to receive and possess child pornography, which is insufficient to justify such expansive computer and internet restrictions under United States v. Crume, 422 F.3d 728 (8th Cir.2005). Wiedower also argues that the district court failed to conduct an individualized analysis as to whether such bans were appropriate, claiming that the district court treated the restrictions as “ de facto standard conditions” of supervised release for any case involving child pornography.

The government, on the other hand, argues that these conditions were “necessary, proper, and well within the district court's discretion given Wiedower's conduct and history.” More specifically, the government argues that Crume does not control because Wiedower did more than just possess child pornography. Instead, the government claims, Wiedower actively used his computer to seek out and receive pornography since 2001. The government further argues that these restrictions do not constitute a greater deprivation of...