United States v. Accardi

• Decision Date: 28 February 2012
• Docket Number: No. 09–3091.,09–3091.
• Citation: 669 F.3d 340
• Parties: UNITED STATES of America, Appellee v. Marc ACCARDI, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

669 F.3d 340

UNITED STATES of America, Appellee

v.Marc ACCARDI, Appellant.

No. 09–3091.

United States Court of Appeals, District of Columbia Circuit.

Argued Nov. 14, 2011.Decided Feb. 28, 2012.

Appeal from the United States District Court for the District of Columbia (No. 1:09–cr–00009–1).Jonathan S. Zucker, appointed by the court, argued the cause and filed the briefs for appellant.

Peter S. Smith, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Ronald C. Machen Jr., U.S. Attorney, and Roy W. McLeese III, John P. Mannarino, and Julieanne Himelstein, U.S. Attorneys.

Before: GARLAND, BROWN and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge BROWN.

BROWN, Circuit Judge:

Appellant Marc Accardi pled guilty to one count of transportation of child pornography and one count of possession of child pornography. On appeal, he challenges the duration and conditions of his supervised release. Because the district court committed no plain error, we affirm.

I

On November 22, 2008, Marc Accardi entered a public internet chat room using the alias “Jerkinoff” and struck up a conversation with an individual who claimed to be an adult male pedophile living in Washington, D.C. Unbeknownst to Accardi, he was actually communicating with Detective Timothy Palchak of the Metropolitan Police Department, who was working undercover with the FBI's Innocent Images Task Force. Accardi told Detective Palchak that he “had an interest in children” ranging in age “from baby on up.” During the conversation, Accardi sent the detective thirteen images of prepubescent children engaging in sexual activity with adult men.

Law enforcement personnel executed a search warrant at Accardi's residence in Scranton, Pennsylvania on December 19, 2008. Agents retrieved thousands of images of young children from Accardi's computer; most of the pictures showed children under the age of 12 having sexual contact or relations with adults. Accardi was subsequently charged, in Washington, D.C., with transportation and possession of child pornography. Pursuant to a signed plea agreement and statement of offense, Accardi pled guilty to both charges at a May 5, 2009 hearing before the United States District Court for the District of Columbia.

On September 2, 2009, the district court sentenced Accardi to concurrent terms of 100 months of incarceration for each count of his indictment. The court also imposed a 40–year term of supervised release, during which Accardi would be required to comply with a number of conditions. At no point during the sentencing hearing did Accardi or his counsel object to any aspect of the sentence.

In this appeal, Accardi challenges the duration of his supervised release and three of its conditions: (1) a ban on “patroniz[ing] any place where pornography or erotica can be accessed or is expressly offered, obtained or viewed, including establishments where sexual entertainment is available, [such as] adult bookstores, peep shows or adult entertainment establishments”; (2) a restriction on his use of a “computer that has access to any online computer service at any location, including [his] place of employment, without the prior approval of the probation office”; and (3) participation in and successful completion of a “residential ... or outpatient substance abuse treatment program, specifically directed toward alcohol abuse, which can include testing and detoxification service as approved and directed by the probation office.” Transcript of Sentence at 30–32.

II

We review all of Accardi's challenges for plain error because they were not raised before the district court. United States v. Sullivan, 451 F.3d 884, 892 (D.C.Cir.2006). To prevail under the demanding plain error standard, an appellant must show that the district court made: (1) a legal error; that was (2) plain or obvious; and that (3) affected his substantial rights. United States v. Olano, 507 U.S. 725, 733–34, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Once plain error is established, this Court may exercise its discretion to correct plain error only where the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id. at 736, 113 S.Ct. 1770. It is appellant's burden to demonstrate that he has met these requirements. United States v. Smith, 267 F.3d 1154, 1160 (D.C.Cir.2001).

Accardi argues that the forty-year term of supervised release was procedurally unsound because the district court incorrectly applied the Sentencing Guidelines and failed to adequately explain the sentence. Accardi also argues that the duration of the term was substantively unsound because it created an unwarranted sentencing disparity among similarly situated offenders. None of his arguments have merit.

As a threshold matter, we reject the government's contention that Accardi waived any appeal of the length and conditions of his supervised sentence or “invit[ed]” the alleged error. Appellee's Br. at 8. A defendant may waive his right to appeal his sentence as part of a plea bargain only if the waiver is “knowing, intelligent, and voluntary.” United States v. Guillen, 561 F.3d 527, 529 (D.C.Cir.2009). For a waiver to be “knowing” and “intelligent,” the court must assure itself that the defendant is “aware of and understands the risks involved in his decision.” Id. In the context of a plea bargain, such a determination is usually made at the plea hearing, at which the court can fully explain the consequences of the waiver by informing the defendant of exactly what rights he is giving up and what rights he retains. See id. at 528.

No such colloquy occurred, so we cannot be sure Accardi knew that he would waive his ability to challenge his sentence by addressing the district court at his September 2, 2009 sentencing hearing. Accardi merely said that he would “take lifetime probation supervision ... I just ask and I beg for leniency and to send me home to my family. I'm willing to do anything—any restrictions you want to place, I'm willing to do that and more[.]” Transcript of Sentence at 19–20. The substance of Accardi's statement does not align with the sentence handed down by the district court. By “beg[ging] for leniency and [asking the judge] to send [him] home to [his] family”, id., Accardi clearly offered to accept lifetime supervised release as an alternative to jail time. Nowhere did he indicate his willingness to accept the sentence he now challenges, which consists of both an extended term of incarceration and lifetime supervised release accompanied by many burdensome restrictions.

We therefore turn to Accardi's allegations of procedural error. A sentencing court can commit procedural error “by failing to calculate (or improperly calculating) the Guidelines range.” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). The Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003 (PROTECT Act), Pub.L. 108–21, codified at 18 U.S.C. § 3583(k), authorized the imposition of a lifetime period of supervised release for sex offenders. The relevant Sentencing Guideline defines “sex offense” as “(A) an offense, perpetrated against a minor, under ... (iii) chapter 110 of [title 18 United States Code],” U.S.S.G. § 5D1.2 cmt. n. 1. Accardi pled guilty to violations of § 2252A, which is part of Chapter 110.

Accardi contends his offenses, possessing and distributing child pornography, do not fall within § 5D1.2 because they were not “perpetrated against a minor.” We—along with Congress, the Supreme Court, and every federal court to address this issue—disagree. As the victim impact statements in this case show, child pornography creates an indelible record of the children's participation in a traumatizing activity, and the harm to the child is only exacerbated by the circulation of the materials. See New York v. Ferber, 458 U.S. 747, 759, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982); Child Pornography Protection Act of 1996, Pub.L. No. 104–208, § 101(a)(2), 110 Stat. 3009, 3009 (2006) (finding that “where children are used in its production, child pornography permanently records the victim's abuse, and its continued existence causes the child victims of sexual abuse continuing harm by haunting those children in future years”). Moreover, four different circuits have rejected precisely the argument that Accardi makes here. See United States v. Daniels, 541 F.3d 915, 924 (9th Cir.2008) (explaining that “merely possessing child pornography is not a victimless crime; it fuels the demand for the creation and distribution of child pornography”); United States v. Pugh, 515 F.3d 1179, 1196 (11th Cir.2008) (“The distribution of photographs and films depicting sexual activity by juveniles is intrinsically related to the sexual abuse of children ...”); United States v. Gonzalez, 445 F.3d 815, 819 (5th Cir.2006) (rejecting claim that “mere consumption” of child pornography is not “an offense perpetrated directly against a minor”); United States v. Kimler, 335 F.3d 1132, 1147 (10th Cir.2003) (holding that possession and consumption of child pornography are crimes “perpetrated against a minor”). No other federal court has accepted Accardi's argument, and we will not be the first.

Accardi also claims the district court failed to adequately explain his sentence, in violation of Section 3553(c). We find the district court's reasons for imposing a 40–year sentence to be apparent from the record. The court explained the conduct underlying Accardi's offenses was “of grave concern,” Transcript of Sentence at 26, because “[t]here was very aggressive sexual activity [in the images] when compared to some of the other images that I've seen in other cases.” Id. at 23. The judge noted Accardi claimed he had sexual contact with a six-year-old, id. at 25, and noted his apparent willingness “to take this beyond looking at images,” id. at 26. She further explained that like drug or...