United States v. Deatherage

• Decision Date: 26 June 2012
• Docket Number: No. 11–2430.,11–2430.
• Citation: 682 F.3d 755
• Parties: UNITED STATES of America, Appellee, v. Justin Daniel DEATHERAGE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

682 F.3d 755

UNITED STATES of America, Appellee,

v.Justin Daniel DEATHERAGE, Appellant.

No. 11–2430.

United States Court of Appeals,

Eighth Circuit.

Submitted: Feb. 13, 2012.

Filed: June 26, 2012.

Angela Lorene Pitts, FPD, Fayetteville, AR, for Appellant.

Michael S. Gordon, AUSA, Little Rock, AR, for Appellee.

Before LOKEN, BOWMAN, and BYE, Circuit Judges.

LOKEN, Circuit Judge.

Justin Deatherage was charged with four counts of receiving and one count of possessing child pornography downloaded to his computer from July 14 to July 17, 2008. After pretrial release and numerous continuances, in November 2010 he pleaded guilty to the possession count, a violation of 18 U.S.C. § 2252(a)(4)(B). After a two-day contested hearing, the district court ¹ sentenced Deatherage to seventy months in prison and ten years of supervised release. He appeals four special conditions of supervised release. When a defendant properly objects at sentencing, we review special conditions for abuse of discretion. United States v. Stults, 575 F.3d 834, 850 (8th Cir.2009), cert. denied,––– U.S. ––––, 130 S.Ct. 1309, 175 L.Ed.2d 1093 (2010). Because the issues raised on appeal turn primarily on the district court's credibility findings, which are virtually unassailable, we affirm.

I.

Our court has published more than twenty opinions reviewing challenges to special conditions of supervised release imposed in sentencing a variety of sex offenders. These issues recur in sex offender cases ² because a number of special conditions commonly imposed, including those recommended by the Sentencing Commission in § 5D1.3(d)(7) of the Guidelines, may result in “sweeping restrictions on important constitutional rights,” such as conditions severely restricting a defendant's right to contact children, including his own; to view sexually-oriented materials protected by the First Amendment; or to access and use computers and the Internet. United States v. Crume, 422 F.3d 728, 733 (8th Cir.2005). Our standards of review are now well-established:

A district court has broad discretion to impose special conditions of supervised release, so long as each condition complies with the requirements set forth in 18 U.S.C. § 3583(d). Section 3583(d) first requires that a special condition must be reasonably related to the nature and circumstances of the offense of conviction, the defendant's history and characteristics, the deterrence of criminal conduct, the protection of the public from further crimes of the defendant, and the defendant's educational, vocational, medical, or other correctional needs.... Second, a special condition also must involve no greater deprivation of liberty than is reasonably necessary to deter criminal conduct, to protect the public from further crimes of the defendant, and to provide for the defendant's educational, vocational, medical, and other correctional needs. Finally, a special condition must be consistent with any pertinent policy statements issued by the Sentencing Commission. In fashioning a special condition of supervised release, a 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.

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Our cases say that a court may impose a special condition on the ground that it is related to a defendant's prior offense, but that a court may not impose a special condition on all those found guilty of a particular offense.

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At some point, there must be a limit to the need for an individualized inquiry, because certain characteristics may justify corresponding conditions for virtually all offenders with such characteristics....

United States v. Springston, 650 F.3d 1153, 1155–56 (8th Cir.2011), vacated and remanded on other grounds,––– U.S. ––––, 132 S.Ct. 1905, 182 L.Ed.2d 766 (2012), quoted extensively in United States v. Schaefer, 675 F.3d 1122, 1124 (8th Cir.2012). Of critical importance in this case, even in the absence of individualized findings a special condition need not be vacated “if the basis for the imposed condition can be discerned from the record.” United States v. Thompson, 653 F.3d 688, 694 (8th Cir.2011); accord United States v. Smith, 655 F.3d 839, 845 (8th Cir.2011).

II.

The underlying investigation began in June 2008 when Michele Alford, a young single mother, contacted the Russellville, Arkansas police. Alford reported that she was in a longstanding sexual relationship with Deatherage, a thirty-year-old married father of two young children, and had become concerned that Deatherage's graphic descriptions of abusive sexual contact with his children's twelve-year-old babysitter, a ten-year-old friend of the babysitter, and a seven-year-old girl who lived across the street from Deatherage were not simply fantasizing, as Alford initially assumed. The police advised they would need more evidence of child sex abuse. Alford provided an undated printout of an online chat with Deatherage in which he discussed in lurid detail this illegal sexual contact. At police request, Alford asked Deatherage if he had pictures of this contact and then met him on the morning of July 18 wearing a hidden “wire” to record their conversation. Deatherage was arrested when he again detailed sexual encounters with the children in graphic detail.

In a post-arrest interview, Deatherage denied having sexual contact with the children or being sexually attracted to children, claiming that he only described sexual fantasies with young girls to arouse Alford. Continuing to investigate, the police did not identify the babysitter or her friend. The seven-year-old neighbor was interviewed by an Arkansas State Police investigator. She denied sexual contact with Deatherage but “had a very strong reaction when asked about anybody touching her inappropriately,” and her demeanor when Deatherage was mentioned “was not consistent with a friendly, healthy relationship.”

Meanwhile, Deatherage's wife consented to seizure of the family computer. A warrant search uncovered six videos and some twenty images of child pornography downloaded between July 14 and 17 that included images of prepubescent females under age twelve being subjected to bondage and engaging in bestiality. Most of the videos pictured the same young girl whose mother later submitted a victim impact statement. Police also found a thirty-page listing of more than one hundred links to pedophile websites. This federal prosecution followed.

III.

We view these sentencing issues from the perspective of the sentencing judge. For Judge Wright, the fact-finding began when Deatherage appeared for the change-of-plea hearing. Defense counsel sought to continue the hearing upon learning that Deatherage must show “exceptional circumstances” to avoid immediate detention after pleading guilty to a child pornography offense. Noting the long delay, Judge Wright responded that Deatherage must change his plea or be promptly tried. The government urged immediate detention even if Deatherage did not enter a guilty plea. The court ordered an immediate hearing on that issue. FBI case agent Todd Hudson testified that Deatherage's former sister-in-law (his wife having divorced him soon after his arrest) had called earlier that week from Pennsylvania, where the ex-wife and children were living. She reported seeing inappropriate sexual contact between Deatherage and his young children and overhearing the State Police investigator's interview of the son, which resulted in the children's immediate placement in foster care. She further opined that “both children are in counseling due to the outward manifestations of sexual abuse.” After hearing testimony by Deatherage, the court found based on the new allegations and the online chat with Alford that he “is a danger to the community” and ordered him detained. The court observed, “I am very concerned after reading this chat. If it's a fantasy, he doesn't write it as if it's a fantasy.” Deatherage then entered the guilty plea.

The primary issue at sentencing was the prison term to be imposed. Consistent with non-binding stipulations in the plea agreement, the Presentence Investigation Report recommended a base offense level of 18, four enhancements totaling 12 levels under U.S.S.G. § 2G2.2(b), and a 2–level reduction for acceptance of responsibility. Before the start of the two-day evidentiary hearing, neither party objected to the PSR recommendations, resulting in an advisory guidelines range of 70 to 87 months in prison and supervised release that could be imposed for the defendant's lifetime. As both sides would present evidence, the court directed the government to proceed first.

The government's first witness was FBI agent Hudson who described the state and federal investigation, laid foundation for copies of the online chat and the wire recording admitted as Exhibits 1 and 3, described the forensic examination of Deatherage's computer, and recounted again the report from the state investigator who interviewed the seven-year-old neighbor. The six downloaded videos were admitted as Exhibit 4 and played in open court. The additional images of child pornography found in the computer's temporary internet file folder were admitted as Exhibit 5, and the thirty-page list of pedophile websites previously admitted at the detention hearing was admitted as Exhibit 2. On cross examination, Hudson admitted that he had no personal knowledge of Deatherage molesting or being charged with molesting any child, no other images of child pornography were found on his computer, and typically in Hudson's experience offenders are found with large volumes of child pornography in their possession.

The government's second witness was Michele Alford. She candidly described her extended sexual relationship with Deatherage, including three-way sexual intercourse with Deatherage and his wife on one occasion. At some...