United States v. Collins

• Citation: 12 Cal. Daily Op. Serv. 7003,2012 Daily Journal D.A.R. 8561,684 F.3d 873
• Decision Date: 22 June 2012
• Docket Number: No. 10–50344.,10–50344.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Tim James COLLINS, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

684 F.3d 873

12 Cal. Daily Op. Serv. 7003

2012 Daily Journal D.A.R. 8561

UNITED STATES of America, Plaintiff–Appellee,

v.Tim James COLLINS, Defendant–Appellant.

No. 10–50344.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted April 11, 2012.

Filed June 22, 2012.

Jean–Claude Andre, Assistant United States Attorney (argued); Curtis Arthur Kin, Assistant United States Attorney, Mieke Biesheuvel, Assistant United States Attorney, Robert E. Dugdale, Assistant United States Attorney, for plaintiff-appellee United States.

Robert Stephen Hanna (argued), for defendant-appellant Tim J. Collins.

Appeal from the United States District Court for the Central District of California, James V. Selna, District Judge, Presiding. D.C. No. 8:08–cr–00209–JVS–1.

Before: ANDREW J. KLEINFELD and MILAN D. SMITH, JR., Circuit Judges, and ALGENON L. MARBLEY, District Judge.^*

OPINION

MARBLEY, District Judge:

Tim James Collins appeals his conviction and imposition of a 60–month sentence following his entry of a plea of guilty to a single charge of possessing child pornography that had been shipped in interstate commerce, in violation of 18 U.S.C. § 2252A(a)(5)(B).

Collins challenges his conviction and sentence on three bases: (1) the district court's acceptance of Collins's guilty plea violated Federal Rule of Criminal Procedure 11; (2) the First Superseding Indictment was invalid due to improper instructions submitted to the grand jury; and (3) the lifetime term of supervised release imposed by the district court is unreasonable and unconstitutional. Collins contends that, as a result of these errors, the district court's judgment must be vacated, and he is entitled to negotiate about re-pleading under the status quo ante immediately after his initial, August 18, 2009, plea. Collins alternatively contends that the lifetime term of supervised release and certain conditions of release should be struck from his sentence.

The district court did not err in accepting Mr. Collins's guilty plea, and Collins's challenges to the grand jury instructions were untimely and therefore waived. Accordingly, we AFFIRM Collins's conviction. We hold, however, that the district court committed procedural error by failing to provide adequate analysis for the imposition of the residency restrictions in Collins's lifetime term of supervised release. We, therefore, VACATE the supervised release portion of his sentence, and REMAND the case to the district court to resentence Collins under the First Superseding Indictment. The district court's articulated reasons for its imposed sentence must show that it properly analyzed all the required factors to be considered under 18 U.S.C. § 3553(a) before imposing terms and conditions of supervised release which are substantively reasonable, in light of Collins's offense characteristics and the goals of sentencing.

I. BACKGROUND

A. Factual History

On December 19, 2007, an FBI Special Agent, working undercover, used peer-to-peer network software to view lists of videos and images stored on Collins's computer. The agent downloaded and viewed three images that appeared to be child pornography. On March 6, 2008, agents executed a federal search warrant at Collins's residence in Anaheim, California. During the search, law enforcement officers seized Collins's computer equipment, including several compact discs and a Seagate brand hard drive (“the hard drive”).

A search of the compact discs and the hard drive revealed images depicting actual minors engaged in sexually explicit conduct,as well as eleven videos depicting minors engaging in sexually explicit conduct. Collins was interviewed the day that his computer media were seized. He admitted to downloading child pornography images for approximately six years and to searching the internet for child pornography. The images and visual depictions had been shipped or transported in interstate or foreign commerce by any means, including computers. Collins obtained the videos by using a computer. Collins knew that the videos showed a minor engaged in sexually explicit conduct, and were made using a minor engaging in sexually explicit conduct.

Additionally, a woman, “M.A.,” told FBI agents that in 2005, when she was a fifteen year-old girl, Collins traveled to the Philippines where she lived and had sexual intercourse with her multiple times knowing that M.A. was only fifteen. Collins admitted to having had a sexual relationship with M.A., but disputes that he knew she was underage at the time.

B. Procedural History

On August 6, 2008, a grand jury (“the original grand jury”) returned a single-count indictment against Collins, charging him with a violation of 18 U.S.C. § 2252A(a)(5)(B) for possessing child pornography on one of the seized computer hard drives. On October 2, 2008, the district court empaneled a new grand jury (“the October 2008 Grand Jury”) and instructed the new jurors. On June 24, 2009, the October 2008 Grand Jury returned a two-count First Superseding Indictment against Collins, both counts being for violations of 18 U.S.C. § 2252A(a)(5)(B) based on the child pornography material found in his possession on March 6, 2008.

On July 15, 2009, Collins and the government entered into a plea agreement in which Collins agreed “to plead guilty to count one of the superseding indictment.” In exchange for Collins's guilty plea, the government agreed, inter alia, to move to dismiss the remaining count of the First Superseding Indictment and not to prosecute Collins for his 2005 sexual conduct with “M.A.,” or for his possession of additional child pornography, neither of which had been charged in the First Superseding Indictment.

On August 18, 2009, the district court held a change of plea hearing. After placing Collins under oath, the court thoroughly questioned him and advised him of his constitutional rights, which he waived. Taking the elements directly from Collins's plea agreement, the government recited the elements required to establish a violation of 18 U.S.C. § 2252A(a)(5)(B) for possession of child pornography, as charged in Count One of both the original and the First Superseding Indictments, and as set forth in the plea agreement. Collins admitted to the facts and elements of his offense as set forth in the plea agreement. Collins then re-affirmed his desire to plead guilty.

The district court accepted Collins's guilty plea. In doing so, however, the court misspoke and, instead of asking Collins how he desired to plead to count one of the superseding indictment, the court asked Collins how he desired to plead to count one of “the indictment.” No objections were raised to the validity of the guilty plea, and the hearing was adjourned.

Realizing its misstatement, the district court contacted the parties and scheduled a second hearing for August 31, 2009. At the August 31, 2009 hearing, the court announced its previous error, and proposed placing Collins under oath again to clarify that Collins intended to plead to Count One of the First Superseding Indictment. Collins's lawyer stated: “We don't object to that proceeding.” The government also had no objections. The court then placed Collins under oath and reminded him about the prior “extensive discussion” at the change of plea hearing where Collins pled guilty. The court asked Collins if there was anything from their prior discussion that Collins wanted to change. Collins answered, “No, Your Honor.”

The court then stated to Collins that: “at the end [of the prior hearing], the concluding question was ‘how do you plead to Count One of the Indictment.’ I made an error. I should have said the ‘First Superseding Indictment.’ ” The court asked Collins if he had discussed this issue with his lawyer. Collins responded that indeed he had. The court then asked the question again, “Sir, how do you plead to Count One of the First Superseding Indictment?” Collins responded, “Guilty.” The court accepted Collins's plea and made several findings before ending the hearing, including a finding that Collins “entered his plea freely and voluntarily with a full understanding of the charges against him and the consequences of his plea.”

On July 12, 2010, the district court sentenced Collins to a total of 60 months' imprisonment.¹ The district court also imposed, over the objections of Collins, a lifetime term of supervised release, and a special assessment of $100. 18 U.S.C. § 3583(k); USSG § 5D1.2(b)(1).

In the court's sentencing memorandum explaining its decision to impose a lifetime period of supervised release, the court cited the “policy of the Guidelines to impose a maximum term of supervised release,” but also indicated it understood the need to “make a particularized determination and ... not rely on generalities.” The court explained that the seriousness of Collins's offense, downloading and sharing a “substantial volume” of “hard core child pornography,” warranted the need for a life term of supervision. The court added, however, that “[i]f [Collins] demonstrates rehabilitation after a number of years, he is free to seek termination of supervised release.”

As part of the life term of supervised release, and again over the objections of Collins, the district court imposed several special conditions of supervised release. These conditions include prohibiting Collins from frequenting or loitering “within 100 feet of school yards, parks, public swimming pools, playgrounds, youth centers, video arcade facilities, or any other places primarily used by persons under the age of 18” (“Condition 11”), as well as a residency restriction, referred to as “Condition 15,” which provides:

The defendant shall not reside within 2,000 feet of school yards, parks, public swimming pools, playgrounds, youth centers, video arcade facilities, or any other places primarily used by persons under the age of 18. The defendant's residence shall be approved by the probation officer, and any change in residence must be...