United States v. Olson

• Citation: 667 F.3d 958
• Decision Date: 13 January 2012
• Docket Number: No. 11–1609.,11–1609.
• Parties: UNITED STATES of America, Appellee, v. Timothy James OLSON, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

667 F.3d 958

UNITED STATES of America, Appellee,

v.Timothy James OLSON, Appellant.

No. 11–1609.

United States Court of Appeals, Eighth Circuit.

Submitted: Nov. 18, 2011.Filed: Jan. 13, 2012.

Neil Fulton, Federal Public Defender, argued, Pierre, SD, Scott Duncan McGregor, AFPD, Rapid City, SD, Christopher J. Lancaster, AFPD, Fargo, ND, on the brief, for Defendant–Appellant.

Jennifer Klemetsrud Puhl, AUSA, argued, Fargo, ND, for Plaintiff–Appellee.

Before WOLLMAN, MURPHY, and BENTON, Circuit Judges.

MURPHY, Circuit Judge.

Timothy James Olson pled guilty to possession of materials involving the sexual exploitation of minors, materials discovered during a state investigation into his sexual abuse of his stepdaughter. The district court sentenced Olson for his federal offense to 108 months consecutive to his state sentence and to a life term of supervised release with several special conditions. Olson appeals, arguing that the district court violated Tapia v. United States, ––– U.S. ––––, 131 S.Ct. 2382, 180 L.Ed.2d 357 (2011) in imposing the consecutive sentence and erred in imposing a special condition prohibiting him from possessing material which depicts or describes sexually explicit conduct. We vacate and remand for resentencing.

Olson reported himself to North Dakota authorities for sexually abusing his stepdaughter. The abuse had begun when she was five years old and continued until she was twelve or thirteen. In the course of interviewing Olson's stepdaughter, police learned that he possessed child pornography. Olson consented to a search of his computer by federal agents. On the computer they discovered over 2,000 images and nine videos depicting children engaged in sexually explicit conduct, including images of prepubescent girls, babies, and sadistic and masochistic conduct.

While the federal investigation continued, Olson pled guilty in state court to continuous sexual abuse of a child and was sentenced by the state judge to 60 years imprisonment, half of which was suspended. Olson then pled guilty in federal court under 18 U.S.C. § 2252(a)(4)(B) to possession of materials involving the exploitation of minors.

At his federal sentencing, Olson described his interest in child pornography as an “addiction” and said he had “become powerless to it.” Olson testified that his interest was so intense that he could not wait to get home from work and masturbate to his collected images even when his stepdaughter was present. Olson stated that his attempts to control his addiction were unsuccessful, and he attributed the abuse of his stepdaughter in part to his consumption of child pornography. He told the district court that he used the material to “whet [his] appetite” and to teach his stepdaughter that sexual conduct was normal. Olson also told the judge that he had been participating in a self help group in state prison to try to overcome his addiction and was seeking any treatment opportunity available.

The district court acknowledged the recommended total offense level in the presentence investigation report, but it stated that it would not apply the report's recommended five level enhancement for a pattern of activity involving the sexual abuse or exploitation of a minor. Because Olson was serving an undischarged prison term for his state offense which was also the basis for the recommended five level enhancement, his federal sentence would have been presumptively concurrent to the state sentence if the district court had used the enhancement to increase Olson's offense level. See U.S.S.G. § 5G1.3(b). Application of the recommended pattern of activity enhancement would have led to an offense level of 33 and a guideline range of 151–188 months.

The district court explained that it “intend[ed] to impose at least some portion of the sentence consecutive to the state sentence.” Since the district court declined to impose the enhancement, Olson's offense level was 28 with a guideline range of 87–108 months. Without the enhancement there was no guideline presumption that the sentence would be concurrent, U.S.S.G. § 5G1.3(c), and under 18 U.S.C. § 3584, “[m]ultiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently.” See also United States v. Lomeli, 596 F.3d 496, 504 (8th Cir.2010).

Before imposing Olson's consecutive federal sentence, the district court addressed all of the sentencing factors in 18 U.S.C. § 3553(a). It commented first on the “exceptionally egregious” nature of Olson's offense, both in terms of the number and nature of the pornographic images he collected, describing him as “a profoundly disturbed individual.” The court then discussed the need for the sentence to reflect the “seriousness of the offense, promote respect for the law, and provide just punishment,” and to “afford adequate deterrence to criminal conduct generally.” It emphasized the need to protect the public from further crimes by the defendant and stated that “hands-on offenders are people that have historically been at high risk to recidivate.” The district court also explained that:

Providing the defendant with the appropriate and effective medical and correctional treatment in the most effective manner possible, all of that I think is something that needs to be taken into consideration. The federal Bureau of Prisons ... operates a treatment system that the Court believes is frankly better than anything that the State of North Dakota offers and that the defendant is a person that really can't be trusted in the community without some meaningful treatment.

The district court imposed a sentence of 108 months to run consecutively to Olson's state sentence and apparently to ensure that Olson could receive “meaningful treatment” in the federal prison system. It also provided for a lifetime of supervised release. As one of the conditions of that release, the court prohibited Olson from “possess[ing] any materials ... depicting [or] describing ‘sexually explicit conduct’ as defined at 18 U.S.C. §§ 2256(2) and 2256(8).” Olson argues that the district court violated the Supreme Court's recent Tapia decision by imposing a consecutive sentence for the purpose of treatment and rehabilitation. He also objects to the special condition of release that prohibits him from possessing sexually explicit materials.

The Supreme Court decided Tapia after Olson's sentencing. In Tapia, it held that a sentencing court “may not impose or lengthen a prison sentence to enable an offender to complete a treatment program or otherwise to promote rehabilitation.” Tapia v. United States, ––– U.S. ––––, 131 S.Ct. 2382, 2393, 180 L.Ed.2d 357 (2011). The Court based its decision on 18 U.S.C. § 3582(a), which instructs sentencing courts to “recogniz[e] that imprisonment is not an appropriate means of promoting correction and rehabilitation.” Id. at 2388–91. Although a sentencing court can “discuss [ ] the opportunities for rehabilitation within prison or the benefits of specific treatment or training programs,” it may not “select[ ] the length of the sentence” to ensure completion of a rehabilitation program. Id. at 2392. After examining the district court's statements at Tapia's sentencing, the Court reversed, concluding that “the record indicates that the [district] court may have ... calculated the length of Tapia's sentence to ensure that she receive certain rehabilitative services.” Tapia, 131 S.Ct. at 2392–93.

Similarly, in this case the district court may have imposed Olson's consecutive sentence in order to enable treatment and promote rehabilitation in a federal institution. Not only did it state that it wanted Olson to receive treatment in a federal program in addition to any services he might receive in state prison, it specifically rejected the presentence report recommendation for a five level enhancement under § 2G2.2(b)(5). The factual basis for the pattern of activity enhancement was undisputed in the presentence report and again conceded at sentencing, but the enhancement would have had the effect of making the federal sentence presumptively concurrent to the state sentence. U.S.S.G. § 5G1.3(b).

Selecting the “length of [Olson's] sentence to ensure that [he] receive certain rehabilitative services” in federal prison would be directly proscribed by Tapia. Id. at 2393. We recently affirmed in a different case where the district court merely responded to the defendant's discussion of his rehabilitative needs and did not appear to lengthen the sentence to accommodate that program. United States v. Blackmon, 662 F.3d 981, 987 (8th Cir.2011) (concluding that there was no plain error). Here, the district court went beyond discussing federal rehabilitative programs and may have imposed the consecutive sentence specifically to address Olson's need for treatment but the record is not clear. We therefore vacate Olson's sentence and remand for resentencing. See United States v. Kubeczko, 660 F.3d 260, 261 (7th Cir.2011); cf. United States v. Garcia–Hernandez, 530 F.3d 657, 665–66 (8th Cir.2008) (remanding where district court relied on erroneous factor); United States v. Roberson, 517 F.3d 990, 995 (8th Cir.2008) (since record was unclear whether there was a Kimbrough error, remanding for district court to exercise its discretion under correct legal framework).

We recognize that the district court also discussed the egregiousness of the crime, the use of the pornographic material in the abuse of Olson's stepdaughter, and the need for deterrence and incapacitation. All of those are permissible factors for consideration and could support a consecutive sentence as Olson concedes. The district court's references to rehabilitation and treatment when calculating the total offense level with the possible purpose of avoiding a presumptively concurrent sentence require remand for clarity about the court's intent. See Tapia, 131 S.Ct. at 2393.

The dissent finds...