United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 14, 2011 Decided February 28, 2012

No. 09-3091

UNITED STATES OF AMERICA,

APPELLEE

v.

MARC ACCARDI,

APPELLANT

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.
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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.
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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 (1993). 

Once plain error is established, this Court may exercise its 
4

discretion to correct plain error only where the error seriously 

affects the fairness, integrity, or public reputation of judicial 

proceedings. Id. at 736. 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 
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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 (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 
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exacerbated by the circulation of the materials. See New York 

v. Ferber, 458 U.S. 747, 759 (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 
7

willingness “to take this beyond looking at images,” id. at 26. 

She further explained that like drug or alcohol dependency, 

rehabilitative treatment is “not a cure” and is “something that 

you’ll have to deal with for the rest of your life.” Id. She 

subsequently explained that supervised release is a “very 

critical piece,” the purpose of which is to “monitor and 

require a program, when in the community, [to] prevent any 

reoccurrence. Id. at 28. This extended discussion about 

Accardi’s particular crimes and the purposes of supervised 

release makes clear that the district court based the sentence 

on what was reasonably necessary to protect the public, 

prevent a reoccurrence, and provide Accardi with treatment. 

See Rita v. United States, 551 U.S. 338, 356–57 (2007) 

(“[W]hen a judge decides simply to apply the Guidelines to a 

particular case, doing so will not necessarily require lengthy 

explanation . . . Unless a party contests the Guidelines 

sentence generally under § 3553(a) . . . or argues for 

departure, the judge normally need say no more.”)

Finally, Accardi argues that the 40-year term was 

substantively unreasonable because the court failed to give 

reasonable weight to one of the statutory factors: “the need to 

avoid unwarranted sentence disparities among defendants 

with similar records who have been found guilty of similar 

conduct.” 18 U.S.C. § 3553(a)(6). He notes that two other 

targets of Detective Palchak’s undercover operation received 

less jail time and substantially smaller periods of supervised 

release, even though both targets transmitted more images to 

Detective Palchak than Accardi did. See United States v. 

Hedgpeth, 1:08-cr-00251-RWR; United States v. Slagle, 1:08-

cr-00308-HHK. We disagree.

The Supreme Court has held that courts of appeals may 

presume that a Guidelines-compliant sentence is reasonable. 

Rita, 551 U.S. at 350–51. This circuit applies that 
8

presumption, see United States v. Dorcely, 454 F.3d 366, 376 

(D.C. Cir. 2006), and Accardi fails to rebut it. Without more, 

two allegedly similar cases constitute too small a sample size 

to support a finding of an “unwarranted disparity” in 

sentences, particularly when the district court explained that 

the images distributed by Accardi were much more aggressive

and troubling than the images distributed by other offenders. 

In light of this finding, it is far from clear that the disparity, if 

any, was “unwarranted.” Moreover, a number of circuits have 

upheld lifetime terms of supervised release for defendants 

convicted of possession of child pornography based on the 

same general concerns about recidivism, protection of the 

public, and rehabilitation that animated the district court’s 

decision here. See Daniels, 541 F.3d at 924 (“The district 

court was within its discretion to conclude that a lifetime term 

of supervised release was necessary to punish Daniels..., to 

rehabilitate him, and to protect the public[.]”); United States 

v. Cope, 527 F.3d 944, 952 (9th Cir. 2008) (basing sentence 

on general concerns about recidivism and protection of the 

public); United States v. Planck, 493 F.3d 501, 506 (5th Cir. 

2007); Gonzalez, 445 F.3d at 819 (“The Court finds a 

supervised release term of life will benefit society and reflects 

the Court’s experience that persons rarely get better in these 

types of cases.”). In light of the particular factual 

circumstances of this case and the caselaw approving similar 

sentences, we find the district court did not substantively err 

in ordering a 40-year term of supervised release.

III

Under Section 3583(d), each condition of supervised 

release must be reasonably related to the nature and 

circumstances of the offense, the history and characteristics of 

the defendant, deterrence of criminal conduct, protection of 

the public, and treatment of the defendant’s correctional 
9

needs. In applying these standards, “sentencing judges are 

afforded wide discretion when imposing terms and conditions 

of supervised release.” Sullivan, 451 F.3d at 895. Because 

Accardi failed to lodge any objection to his sentence before 

the district court, we review the district court’s imposition of 

the terms and conditions of supervised release for plain error. 

Id.

We conclude the district court did not plainly err in 

imposing any of the challenged conditions, though we do 

subject the prohibition on patronizing any place where 

pornography is available to a limiting construction to prevent 

it from being impermissibly vague.

Accardi first challenges the condition barring him from 

“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, adult bookstores, peep shows, or adult 

entertainment establishments.” Transcript of Sentence at 31. 

He claims the condition, as imposed, is overbroad, because it 

gives his future probation officer the power to arbitrarily 

define “pornography or erotica” and could be construed to 

ban him from places not directly related to the goals of 

sentencing, such as bookstores, newsstands, and even the 

Library of Congress.

Accardi notes a governmental restriction can be 

impermissibly vague “if it authorizes or even encourages 

arbitrary and discriminatory enforcement.” Hill v. Colorado,

530 U.S. 703, 732 (2000). He points to United States v. Loy,

237 F.3d 251, 266 (3d Cir. 2001), which held that a 

supervised release condition prohibiting the defendant from 

possessing “pornography” was unconstitutionally vague. 

“[W]ithout a more definitive standard to guide the probation 
10

officer’s discretion,” the court warned, “there is a real danger 

that the prohibition on pornography may ultimately translate 

to a prohibition on whatever the officer personally finds 

titillating.” Id.

The condition imposed upon Accardi is different from the 

one invalidated in Loy. The district court’s restriction on 

Accardi’s access to “pornography and erotica” refers to those 

terms as part of a more general prohibition on “patroniz[ing] 

establishments where sexual entertainment is available,” 

which is accompanied by examples illustrating the intended 

scope of the prohibition. While we agree with Accardi that 

the condition, if enforced using the broadest plausible 

interpretation, could lead to constitutionally problematic 

results, we do not believe the district court intended to prevent 

Accardi from going to the library or buying a newspaper. To 

avoid any constitutional problem—and to give effect to the 

intent of the district court—we construe the ban as limited to 

places like those enumerated in the condition’s “including” 

clause, i.e., places in which adult entertainment is the primary 

offering. At argument, the government agreed this is the 

meaning intended, and the defendant agreed that so construed 

the condition is not impermissibly vague. 

Next, Accardi challenges the district court’s ban on 

“possess[ion] or use [of] a computer that has access to any 

online computer service at any location, including [his] 

employment, without the prior approval of the probation 

office,” claiming this condition is more restrictive than 

necessary because it gives the probation officer “unchecked 

power to censor his on-line speech” for the rest of his life.

Appellant’s Br. 21. We find that the condition does not 

warrant reversal under plain error review.
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In cases involving prosecution for “sex crimes,” which is 

defined to include Accardi’s offense, the Sentencing 

Guidelines suggest computer restrictions can be “reasonably 

related” to the conduct underlying the offense. See U.S.S.G. 

§ 5D1.3(d)(7) (2004). When faced with a substantially 

similar internet restriction, we noted that “[t]his circuit has yet 

to decide whether individuals convicted of sex crimes may 

have their Internet usage conditioned on Probation Office 

approval, and our sister circuits are divided on the issue.” 

Sullivan, 451 F.3d at 895–96. Five years after deciding 

Sullivan, this Court still has yet to decide the issue, and 

disagreement among our sister circuits has continued. Some 

courts have upheld qualified internet bans where, as here, the 

defendant used a computer for distribution of child 

pornography. See United States v. Boston, 494 F.3d 660, 668 

(8th Cir. 2007). See also United States v. Bender, 566 F.3d 

748, 751–52 (8th Cir. 2009) (upholding a restriction on 

internet usage subject to permission from defendant’s 

probation officer); United States v. Thielemann, 575 F.3d 265, 

278 (3d Cir. 2009) (same); United States v. Rearden, 349 F.3d 

608, 620–21 (9th Cir. 2003) (same); United States v. Zinn, 

321 F.3d 1084, 1093 (11th Cir. 2003) (same). Others, 

however, have found that such conditions impose a greater 

restraint than was reasonably necessary. See, e.g., United 

States v. Albertson, 645 F.3d 191, 199 (3d Cir. 2011) 

(reversing internet restriction). In light of the circuit split on 

this issue and this Court’s ongoing silence, the district court 

did not plainly err by imposing a qualified ban on Accardi’s 

ability to access the internet.

Likewise, Accardi’s challenge to the alcohol treatment 

requirement fails because of a lack of relevant precedent in 

this circuit and a split among the circuits that have evaluated 

similar conditions of supervised release. The district court 

ordered Accardi to “participate in and successfully complete a 
12

residential and/or out-patient [alcohol] abuse treatment 

program . . . as approved and directed by the probation 

office.” Accardi now claims the court improperly delegated 

the discretion to decide whether he will be subjected to a 

residential rehabilitation program, which implicates 

“significant liberty interests that the court may not delegate to 

a probation officer.” Appellant’s Br. 25.

Accardi’s argument raises a question of first impression 

for this court which would be inappropriate to address under 

plain error review. Other circuits, however, have upheld

similar conditions. See United States v. Heckman, 592 F.3d 

400, 410 (3d Cir. 2010) (permissible for district court to 

impose mandatory treatment and to delegate choice of 

treatment program); United States v. Cutler, 259 F. App’x. 

883, 887 (7th Cir. 2008) (same); United States v. Allen, 312 

F.3d 512, 515–16 (1st Cir. 2002) (permissible to delegate to 

probation office “whether and for how long” defendant must 

participate in mental health treatment). But see United States

v. Mike, 632 F.3d 686, 696 (10th Cir. 2011) (“any condition 

that affects a significant liberty interest, such as one requiring 

the defendant to participate in residential treatment, must be 

imposed by the district court”); United States. v. Esparza, 552 

F.3d 1088, 1091 (9th Cir. 2009) (decision regarding whether 

treatment would be inpatient or outpatient could not be 

delegated to the probation office). A district court cannot 

“plainly” err on an issue that has so divided the circuits. 

Sullivan, 451 F.3d at 895–96. 

IV

Finally, Accardi argues that his trial counsel was 

“ineffective for failing to object” to the three conditions he 

now challenges. To succeed on an ineffective assistance of 

counsel claim, the defendant must demonstrate both that his 
13

counsel’s performance fell below an objective standard of 

reasonableness and that this deficiency prejudiced his defense. 

Strickland v. Washington, 466 U.S. 668, 688–92 (1984). 

When raised for the first time on appeal, this court’s general 

practice is to remand the claim for an evidentiary hearing 

unless the trial record alone conclusively shows the defendant 

either is or is not entitled to relief. United States v. Shabban,

612 F.3d 693, 698 (D.C. Cir. 2010). 

Accardi claims it was objectively unreasonable for 

counsel not to object to his sentence because the lengthy term 

of supervised release, coupled with the allegedly overbroad 

conditions of release, subjected him to “substantial 

deprivations of fundamental rights.” Appellant’s Br. 31. He 

further argues that counsel’s failure to object prejudiced this 

appeal by forcing this court to review his sentence for plain 

error, rather than abuse of discretion. We disagree.

It is clear without the need for further factual 

development that counsel’s decision not to object to the 

duration and conditions of supervised release reflected a 

strategic decision not to challenge the terms of supervised 

release in the hope of obtaining a shorter prison sentence. At 

the sentencing hearing, Accardi himself indicated his 

willingness to accept more restrictive terms of supervised 

release in exchange for a reduced prison sentence. In light of 

Accardi’s explicit statement that he would “take lifetime 

supervised probation supervision,” it would be somewhat 

perverse to find counsel constitutionally deficient for failing 

to object to the imposition of that very condition. Rather, the 

transcript of the sentencing hearing makes clear that counsel’s 

failure to object reflected a reasonable strategic choice, which

when “made after thorough investigation of law and facts 

relevant to plausible options [is] virtually unchallengeable.” 

Strickland, 466 U.S. at 690.
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V

For the foregoing reasons, the sentence imposed by the 

district court is hereby 

affirmed.