United States Court of Appeals

Fifth Circuit

FILED

April 20, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-20922

UNITED STATES OF AMERICA

Plaintiff-Appellee,

versus

SCOTT ERIN ALLISON

Defendant-Appellant.

Appeal from the United States District Court

For the Southern District of Texas

Before HIGGINBOTHAM, DAVIS, and STEWART, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

Defendant Scott Erin Allison challenges the district court’s

imposition of a life term of supervised release following Allison’s

guilty plea to possession and production of child pornography. We

affirm.

I

The unpleasant specifics of Allison’s child pornography

offenses provide a necessary backdrop to understanding the district

court’s imposition of a life term of supervised release. Although

apparently beginning much earlier, Alison’s predilection for young

girls was first discovered in May 2003. Then, Allison’s estranged

wife, Kathy, tending to Allison’s dogs while he was vacationing

over Memorial Day weekend, found a young girl’s underwear
2

underneath Allison’s bed. Suspicious, Kathy returned to Allison’s

house the next day and, with further investigation, found a tripod,

a video camera, several 8mm tapes, and numerous floppy disks.

Disturbed, Kathy returned again, finding a computer hard drive.

Kathy turned all of these items over to law enforcement.

The evidence confirmed Kathy’s suspicions. One video showed

Allison with a young girl, approximately three-and-a-half years

old, whose genitals and buttocks were exposed to a hidden camera in

the laundry room. The girl’s mother confirmed that the video was

made at Allison’s house around late November or early December

1994, as the girl was wearing the same Christmas dress that she

wore in a photo with Santa Claus, published in the local newspaper

twenty-six days before Christmas.

Allison made a second video of the same child approximately

twelve months later. The video showed Allison in the same laundry

room spanking the girl, pulling down her pants and underwear, and

exposing her genitals and buttocks to the camera. As the girl

cried out, “Mama, I want my Mama,” Allison continued to spank her,

all the while telling her that he “didn’t” and “wouldn’t” hurt her.

At the close of the video, Allison placed a laundry basket in front

of the camera lens.

In a third video, Allison taped a different young girl, about

ten or eleven years old at the time, undressing in Allison’s

bedroom. The girl informed authorities that she would go to

Allison’s house to go swimming at a community pool and that she
3

would change into her bathing suit in Allison’s bedroom at his

direction. She was recorded by a camera Allison had set up in the

closet. She confirmed that Allison’s secretive taping of her

occurred during the summer of 1995.

The computer hard drive and floppy disks contained numerous

images and videos of nude young girls in sexually suggestive poses

and engaging in sexually explicit conduct. Authorities also found

files on the computer indicating that Allison engaged in online

communications with young girls, including the sending and

receiving of child pornography.

Allison was charged in a six-count indictment with various

child pornography offenses. He pled guilty to one count of

production of child pornography, in violation of 18 U.S.C.

§ 2251(a), and to one count of possession of child pornography, in

violation of 18 U.S.C. § 2252A(a)(5)(B). The presentence report

recommended a life term of supervised release, and the government

promptly filed notice of its intention to seek upward departure.

The government argued that a life term of supervised release was

necessary to “insure[] the continued monitoring of the defendant,

a convicted sex offender.”

Allison asked the court to sentence him at the bottom of the

applicable guideline range, asserting that he was remorseful and

“capable of being rehabilitated.” The district court disagreed,

sentencing Allison to concurrent terms of imprisonment of 96 months
4

for each count. The government argued that a life term of

supervised release was appropriate:

[Allison] has shown a consistent pattern of an unnatural

sexual interest in children and acting on it. That’s the

critical inquiry, Judge. I just want you to consider

that he’s acted on it. He’s gone through all stages of

this continuum of behavior that therapists and the

experts in this field describe. And it’s a scary thing

he’s done to these children[.]

The district court agreed, sentencing Allison to concurrent terms

of supervised release of three years (on the production charge) and

life (on the possession charge). Relevant to this appeal, the

court stated:

That’s a departure, but under the circumstances of what

[the prosecutor] just mentioned, the matter of scientific

evidence is that this a perpetual problem, it’s not

something that eight years in prison will cure. It may

deter, but it’s a predilection not unlike alcoholism and

some other things that don’t seem to respond to

incentives that embezzlement and simpler crimes do

respond to.

After imposing the sentence, the district court continued:

Mr. Allison, all of the counselors in the world can’t

solve this problem. And I don’t care what kind of

thoughts you have; you just can’t act on them. If you

act on them, you are going to end up in prison or worse.

And it might be hard. I can’t conceive that it would be

as hard as what you’re going to do. And you have to ––

society, the lifetime of supervision is not to hold your

hand; it’s to watch you, because if you’re determined

that you’re going to go out there and violate this law

again, there is no way of stopping it. But when you’re

caught, you can imagine what the guidelines will be on

that?

* * *

And basically what’s going to happen is, if you do this

again after you get out, you’re going to die in prison.
1United States v. Olano, 507 U.S. 725, 732 (1993); United States v.

Villegas, 404 F.3d 355, 358 (5th Cir. 2005).

2United States v. Johnson, 529 U.S. 53, 59 (2000).

5

That’s the short answer. That’s got to be down pretty

far even on your list of choices.

This appeal followed. Allison only challenges the district court’s

imposition of a life term of supervised release.

II

Allison concedes that he first objected to the life term of

supervised release on appeal to this Court; thus, our review is

only for plain error.1 Allison argues (1) that he lacked notice of

the district court’s specific ground for upward departure; (2) that

the district court’s written reasons for departure were

insufficient; (3) that the district court’s decision to depart was

an abuse of discretion; and (4) that the extent of the departure

was unreasonable. We find no error.

Supervised release terms are designed to “assist individuals

in their transition to community life.”2 The term of supervised

release is controlled by 18 U.S.C. § 3583. Under § 3583(b), the

maximum term of supervised release for a Class C felony is three

years. With sex offenders, Congress determined they needed

additional supervision as they make the transition back to

community life. To this end, § 3583(b) is amended by § 3583(k),
3Both Allison’s possession and production offenses qualify as “sex

offenses” under § 3583(k). For whatever reason––the record is unclear–– the

district court imposed the life term of supervised release only on the possession

charge.

4Allison was sentenced under the 2003 edition of the Sentencing Guidelines,

so all references herein are to that edition.

5U.S. SENTENCING GUIDELINES § 5D1.2(a) (2003 ed.).

6U.S. SENTENCING GUIDELINES § 5D1.2(c) (2003 ed.).

6

which provides that the maximum term of supervised release for

various sex offenses, including violations of § 2252A, is life.3

The United States Sentencing Guidelines track the heightened

punishment for sex offenders reflected in the statute.4 For a

typical Class C felony, the term of supervised release is at least

two years but not more than three years.5 With sex offenders, a

life term of supervised release is recommended: The “policy

statement” in § 5D1.2(c) provides that “[i]f the instant offense is

a sex offense, the statutory maximum term of supervised release is

recommended.”6 The comments to § 5D1.2(c) make clear that

Allison’s possession offense qualifies as a “sex offense.”

Reading 18 U.S.C. § 3583(k) together with the policy statement

in § 5D1.2(c) indicates that the Congress and the Sentencing

Commission intended to impose life terms of supervised release on

sex offenders. Congress explicitly recognized the high rate of

recidivism in convicted sex offenders, especially child sex

offenders. The legislative history of § 3583(k) states that the

life term of supervised release was in response to the 
7H.R. REP. NO. 108-66, at 49-20 (2003) (conf. rep.), reprinted in 2003

U.S.C.C.A.N. 683, 684; see also United States v. Moriarty, 429 F.3d 1012, 1025

(11th Cir. 2005).

8See FED. R. CRIM. PRO. 32(h); United States v. Andrews, 390 F.3d 840, 844-45

(5th Cir. 2004).

9United States v. Milton, 147 F.3d 414, 421 (5th Cir. 1998).

7

long-standing concerns of Federal judges and prosecutors

regarding the inadequacy of the existing supervision

periods for sex offenders, particularly for the

perpetrators of child sexual abuse crimes, whose criminal

conduct may reflect deep-seated aberrant sexual disorders

that are not likely to disappear within a few years of

release from prison. The current length of the

authorized supervision periods is not consistent with the

need presented by many of these offenders for long-term

and in some cases, life-long monitoring and oversight.7

With this background in mind, we turn to Allison’s contentions on

appeal.

Allison’s notice argument centers on the district court’s

reliance on the purportedly unannounced “scientific evidence”

suggesting that possession of child pornography was a “perpetual

problem” that would not be “cure[d]” with a 96-month prison

sentence. Federal Rule of Criminal Procedure 32(h) requires the

court to provide “reasonable notice” if it intends to depart from

the applicable sentencing range “on a ground not identified for

departure in either the presentence report or in a party’s

prehearing submission.”8 Rule 32(h) is designed to avoid placing

defense counsel in the position of “trying to anticipate and negate

every conceivable ground on which the district court might choose

to depart on its own initiative.”9
10United States v. Davenport, 286 F.3d 217, 219 (5th Cir. 2002); United

States v. Doucette, 979 F.2d 1042, 1047 n.4 (5th Cir. 1992).

11United States v. Booker, 543 U.S. 220, 261-62 (2005); United States v.

Mares, 402 F.3d 511, 519 (5th Cir. 2005). 

8

We have consistently held that the notice requirement may be

satisfied by information in the PSR.10 Here, the PSR explicitly

referenced 18 U.S.C. § 3583(k) and the “policy statement,”

§ 5D1.2(c), in the sentencing guidelines. Allison also received

notice of the possible life term of supervised release at his

rearraignment and through the government’s notice of intention to

seek upward departure. Recognizing this, Allison focuses his

objection on the district court’s characterization of the general

notion that pedophiles are typically recidivists as “scientific

evidence.” He contends that there was no scientific evidence

discussed in the PSR, mentioned in the government’s motion for

upward departure, or presented to the district court in the form of

publications or expert testimony. Essentially, Allison asks us to

hold that a district court judge must quantify each sentencing

decision with citation to and discussion of empirical data.

This position fundamentally misunderstands the district court

judge’s role in sentencing. Especially after United States v.

Booker, sentencing is an art, not a science. For instance, we now

only review sentences for “reasonableness.”11 District court judges

occupy a unique position in the imposition of criminal justice,

such that their evaluation of a case warrants substantial
12United States v. Gore, 298 F.3d 322, 325-26 (5th Cir. 2002) (providing

that the goal of § 3553 is to “permit effective appellate review of sentencing”).

1318 U.S.C. § 3553(c); United States v. Gonzalez, ___ F.3d ___, 2006 WL

895204, *2-*3 (5th Cir. April 7, 2006).

14Cf. United States v. Saldana, 136 Fed. Appx. 681, 681-82 (5th Cir. 2005)

(finding that a single reference to § 5K2.0 of the sentencing guidelines, which

is the general provision for upward departures, was insufficient to meet

§ 3553(c)’s requirement and remanding to the district court so that it could

supplement its reasons for departure).

9

deference. They see many cases with different facts, giving them

a perspective much different than that of an appellate court judge.

Further, we are not persuaded that the district court’s invocation

of “science” taints the judgment-call that the court made, as it

was nothing more than a shorthand reference to the general

notion––reflected in the statute and the guidelines––that

pedophiles are typically recidivists. In short, Allison’s notice

argument fails.

Allison’s objection to the district court’s written reasons

for departure is similarly meritless. In order to permit effective

appellate review of sentences,12 a district court must state in

writing its specific reasons for an upward departure from the

guidelines.13 Here, the district court provided a single reason:

“Solely with respect to the term of supervised release, the Court

departs pursuant to U.S.S.G. § 5D1.2(c).” The single reference to

the policy statement recommending a life term of supervised release

cannot be read in a vacuum,14 as the policy statement is derived

from the statutory authority in 18 U.S.C. § 3583(k) and is

consistent with Congress’s intention to punish possessors of child
15See Gonzalez, ___ F.3d at ___, 2006 WL 895204, *3; United States v.

Saldana, 427 F.3d 298, 308 (5th Cir. 2005); United States v. Simkanin, 420 F.3d

397, 415 (5th Cir. 2005); United States v. Smith, 417 F.3d 483, 492 (5th Cir.

2005); United States v. Moore, 997 F.2d 30, 37 (5th Cir. 1993) (describing that

discretion as “wide”).

16See Gonzalez, ___ F.3d at ___, 2006 WL 895204, *3; Saldana, 427 F.3d at

310.

10

pornography with life terms of supervised release because of the

high rate of recidivism.

We also conclude that the district court did not abuse its

discretion in its decision to depart upward or in the extent of the

departure.15 A court does not abuse its discretion in deciding to

depart upward when its reasons for doing so advance the objectives

in 18 U.S.C. § 3553(a)(2), are authorized by § 3553(b), and are

justified by the facts of the case.16 Here, inherent in the

district court’s reference to the policy statement is a reflection

on the seriousness of the offense and the need to provide a just

punishment––both permissible considerations under 18 U.S.C.

§ 3553(a)(2). Further, the district court’s stated reason––the

general notion that pedophiles are typically recidivists––is

consistent with protecting the public from further crimes by the

defendant, and we must be mindful of the admitted-to facts

illustrating Allison’s lengthy involvement in various child

pornography offenses. Lastly, both the decision to departure

upward and the extent of the departure are consistent with

Congress’s and the Sentencing Commission’s intention to punish
11

child sex offenders with life terms of supervised release. We see

no abuse of discretion.

III

Accordingly, the district court’s imposition of a life term of

supervised release is AFFIRMED.