2004 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit 12-6-2004 

# U S A v . L a ndr y P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al D ocke t N o . 04-1187

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w . v i l l a no va . e du/thir dc ir c uit_2004/100NOT PRE CEDENT IAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT

No
. 04-1187

UNITED S TATES OF AMERI CA

v. JERRY LANDRY , Appellant

ON APPEAL FROM THE UNITED STATES

DIST RICT COURT FOR THE DISTRI CT OF NEW JERSEY ( D.N .J. Criminal N o. 03-cr-003 32-1 ) Distri ct Judge: The Honorable Freda L. Wolfson

Submitte d Under Third Circ uit L. A.R. 34.1( a)

November 3, 2004 Before: ALITO , BARRY , and FUENTES , Circuit Judges

. (Fil ed: December 6, 2004)

OPINI ON OF THE COURT

FUENTES , Circuit

Judge

. Appellant

Jerry Landry pl ed guilt

y t o one count of1 Mos t of the fa cts pres ented he

re are taken dir

ectly fro m Land ry ’s pre- sentenc ing rep ort. 2 poss ession of ch ild porn ogra phy and wa s sente nced acco rding ly in the Distri ct Court. Among the terms of the sentence is a three- year

term of super

vised r elease to be imposed upon t he completi on of his i ncarcer ation. On appeal, Landry chall enges for the first time three o f the c ond itions o f sup ervise d relea se: a blanket restriction on int ernet us e, an orde r to comple te a subs tance abus e pro gram , and a proh ibition o n w orkin g w ith mino rs. W e find that the Distric t Cou rt did no t com mit pla in

error in imposi ng these r estr icti ons, and t herefore a ffirm the sentence . I. As we write sole ly

for the parti es, our

recit ation of

the facts wil l be limited t o those nece ssary to our det erminat ion. 1 On July 24, 2002, Jer

ryLandry was pul led over in New Jersey by the police for driving an unreg istered vehicle. A fter Land ry was unable to pr oduce a dri ver’s l icense f or the offi cers, they discover ed through a r adio check t hat his Virgini a lic ense was suspended and al so that there e xist ed an outst anding warrant for his arre st, wh ich ha d bee n issue d in M aryland. A s a resu lt,2 To this day, Landry conte nds that the pornography

was already contained on hard-drives that he purchased used, and that he s imply

did notdelete the mater

ial (rat her than having sought it out or pro duced it himself). However suspect that claim may

be, the State has not 3 Landry was ar

rest ed. The offi cers t

hen searche d his vehi cle and found a fraudul ent Maine dri ver’s l icense and some fraudule nt per son al an d co mm ercia l che cks

. Shortl y aft er arr iving at the poli ce station, Landr y waived his Miranda right s and confess ed to cre ating t he fraudul ent materials foun d in his car using his persona l compu ter. Landry consented t o a search of t he motel r oom at which he was stayi ng at the time. The police di scovered t he equipment us ed to make the licenses and checks, as w ell as blank che ck stock, m ore Ma ine driver’s licenses, and thirteen photog raphs of m inors engaged in expl icit

sexual conduc t. One of these photogr aphs depict ed salac ious conduct involvi ng an adult

male and a minor female. Lan dry adm itted to the police that he knew the girl in that p ictur e an d th at he in fa ct ha d tak en th e pic ture him self . A subsequent

search of t

he equipment found in Landry’ s room reveal ed various materi als for forgery of ident ific ation docu men ts and chec ks an d an e xtens ive co llection o f child pornography, consist ing of several hundred movies and images. 2produced any contra

dictory evide nce and the District Court accepted Landry ’s contention. We need not concer n ourselves with the

creduli ty of the contention,as it does not affe ct our analysis. 4 In an interview with the U .S. Secret Serv ice, Landry explai ned that

he posted chi ld pornogr aphy on a websi te that prov ided v isitors w ith the m aterials in exch ange for the ir identi fyi ng informat ion. He would use t he ident ify ing information to produce fake driver’s li censes. Eventually, Landry was ar rest ed by fede ral aut

horit ies on charges r elat ing to chi ld pornogr aphy. As part of a pl ea agree men t, he pled guilty to on e cou nt of p osses sion o f child por nog rap hy, in v iolat ion of 1 8 U .S.C . § 22 52A (a)(5 )(B ). A pre- sent enci ng rep ort

was pre pared

and ci rcul ated

by a U.S. probati on officer , cont aining t he foll owing relevant infor mation: (1) that Landry

admitt ed to knowing the minor in one of the photographs found in his motel room and t o actual ly having taken that pic ture; (2) that he admit ted to prior r ecreat ional dr ug use as a t eenager and t o having been or dered to e nter a s ubstance abuse progr am; (3) t

hat the re is a pending char ge against him for possessi on of parapherna lia a ssociated with c rack cocai ne; and (4) that he once at

tempted sui cide through the s wallowing of5 prescr ipti on drugs. Landry was s entenced ac cording t o the guidelines to 48 months incarc erati on, thr ee ye ars of supe rvise d relea se, and a s pecialassess ment of $100. Addit ionally, the judge imposed e ight condi tions applic able t o the super vised relea se p erio d, w hich we re n ot o bjec ted to at the hea ring

. Amo ng these conditions are: ( 1) that Landry “not possess, procure, purchase or

otherwis e obtai n access t o any for m of computer net

work, bull etin board, I nternet , or exchange format involvi ng computers unl ess speci fical ly approved by

the Probati on Office”; ( 2) that he “refra in from the ill egal poss ession and /or u se o f dr ugs ,” su bm it to “ testin g to ens ure com plian ce,” and “submit to drug tr eatment, on an inpat ient or outpati ent basis”; and (3) tha t he “shall not ob tain employm ent or perfo rm volunteer w ork w hich include s, as part of its job/wo rk desc ription, c ontac t with m inor ch ildren.” Lan dry filed tim ely notice of appeal of t

he sentenc e, and chal lenges t hese conditions in thi s Court as not

supporte d by an ar

ticul ated base s from the judge, overly

broad, and not

reasonably r elat ed to the goals of sentencing. II.6 Generall y, the imposi tion of s pecialconditi ons of supervi sed rel ease is reviewed under the defer entia l abuse of disc retio n sta nda rd. See United Stat es v. Lee , 315 F.3d 206, 210 (3d Cir. 2003). However, c halle nges to se ntenci ng conditi ons not objec ted to at the s entenci ng hearing are revi ewed under the

eve n m ore deferen tial p lain e rror s tand ard

. United Stat es v. Warren , 186 F.3d 358, 362 (3d Cir. 1999). Thus, because no objec tion w as m ade to the co ndition s cha llenge d her e, we apply the pla in erro r stand ard. A plain e rror is on e that (o bvio usly) is plain and that a ffe cts su bsta ntial righ ts. See United Stat es v. Wolfe , 245 F.3d 257, 261 (3d Cir. 2001). Deviation from a l egal rule satis fies this s tand ard

. Id. However, even if a de fendant can esta blis h the exi stence of

plain e rror, it i s withi n the “sound discr etion of

the Court of

Appeals . . . whether to correct the

error .” Id. (citing Fed. R. Crim. P. 52(b)). “[A] court s hould not exerci se that

discr etion unl ess the error seri ously

affect[s ] the fairne ss, integri ty

or publi c reputation of j udicia l procee dings. ” United Stat es v. Olano , 507 U.S. 725, 732 (1993) (quot ation omitted). As we have noted before, “[a] sent encing j udge is gi ven7 wide discr etion in imposing s upervis ed rele ase.” United Stat es v. Crandon , 173 F.3 d 12 2, 12 7 (3 d C ir. 19 99)

. [A] D istrict Court may order anyappr opriate conditi on to the e xtent i t (1) is re asonably relat ed to cert ain fact ors, including (a) t he nature and circumst ances of the offense and the hi story and charact eris tics of the defendant , (b) deterring further crimina l conduct

by t he defendant, or (c) protecting the publ ic from further criminalconduct by t he defendant; and (2) i nvolves no gr eater deprivation o f liberty than is reasonably necessary for the pur

poses of det errence and protec tion of t he public. Id. (em pha sis ad ded ) (citin g 18 U.S .C. § § 35 83( d), 3 553 (a)). “[T]he court s of appeal s have consi stent ly requir ed dist

rict courts to set

forth fac tual f

indings to jus tify

specialprobati on conditi ons.” Warren , 186 F.3d at 362, 366 (di scussi ng cond itions o n “pr obatio n or su perv ised re lease” ). Ho we ver, “if the d istrict cou rt fa ils to s et fo rth its find ing s an d ju stific ation s,” “the re cord below must cont ain evi dence that would support t

he8 imposit ion of a spec ial c onditi on.” Id. at 366-67. “[A] dist rict court s hould engage i n an inquir y which r esult s in fi ndings on the rec ord to j usti fy t

hat condi tion, and to indi cate how that conditi on meets the stat utory purposes of pr obation. ” Id. at 36 7. “We w ill affi rm only if t he district

court has made such findings,

or we c an determ ine from the record a su fficient eviden tiary basis f or the [c onditi on].” Id. A distri ct court may adopt

the factualfindings in a pre- sentencing report in order to provi de a sufficie nt re cor d fo r rev iew on a ppe al. See, e. g. , United Stat es v. Hallman , 23 F.3d 8 21, 827-2 8 (3d C ir. 1994). III. A. Bases for t

he Conditi ons Lan dry first co ntend s that the Distric t Cou rt failed to state bases for any of t he three chall enges conditions and t hat the record is dev oid o f any su ch ba sis for th eir imp osition . Eve n if we were to agree wit

h the former

content ion, we fi nd that t he pre-se ntenc ing rep ort, exp licitly adopte d by the D istrict Co urt, provides ample support for the c onditi ons. The i nternet restriction is supporte d by t he fact t hat Landry

used that

medium to trade chil d pornography for identification information. Thus,9 the int ernet f

acil itat ed his cr eati on of forged documents and op en ed an av en ue up fo r h im to di ss em in ate ch ild po rn og ra ph y, pot entia lly inclu din g m ateri als th at he him self crea ted. Similarly , the work restricti on finds suppor t in hi s apparent attr ac ti on to mi nor s and w il lingn es s t o e xpl oi t t he m fo r h is own benefit. Admittedly , the drug treat ment order finds less robust support in the re cord, but his teen age sub stance abu se and m ore recent substanc e-based s uicide atte mpt provide s uffici ent support, given the extraordinari ly deferent ial s tandard of review th at w e m us t ap pl y.

B. Overbreadth of the Int ernet Rest riction Landry argues that the conditi on restricting his use of the interne t and s imilar n etwo rk-ba sed c om mu nicatio n system s is overly broad, as it prevents hi m from accessing em ail, news, weather, and other important informati on. He reli es heavily on our decis ion in United Stat es v. Fr eeman , 316 F.3d 386 (3d Cir. 2003), in w hich w e foun d that a similar restriction “involv e[d] a greate r dep rivation of libe rty than is rea sona bly nece ssary to deter f uture criminalconduct and t o protect the publi c.” Id. at 392. We noted that, be cause Freeman had only downloaded3 It is a lso worth n oting that the restriction here allows Landry access to the internet if he receiv es permission from the Probation Office. However, this fact does not di stinguish this case fr om Freeman or Crandon , as similar allowances were made in those case s. 10 child por nography

(not t o downplay t

he wrongfulness of such action, of course), “[t]here is no need to cut off Freeman’s access to emailor benign i nternet usage when a more focused restriction, l imit ed to pornogr aphy s ites and images, can be enforced by

unannounced inspe ctions of materi al st ored on Freeman’s har d drive or removable di sks.” Id. We dist inguis hed our deci sion i n Crandon , in whic h a simil ar restriction was upheld, because “t he defendant in Crandon used the inte rnet to c ontac t young childre n and solicit ina ppro priate sexual cont act with them.” Freeman , 316 F.3 d at 3 92. We first note that the restriction here is som ewh at more narrow than t

hat in Freeman , as Landry is not barred fr om using a stand-alone comp uter. 3 M ore ove r, Freeman can be chara cterized as a ca se inv olving a simp le “co nsum er” of child pornography , with Crandon instead conc erning som eone directly in vo lv ed in th e e xp lo ita tio n o f c hi ld re n. U nd er th at d ich ot om y, it i s not unre asonable t o place Landry in the l atte r cate gory , as he not only traded in the pornogr aphic material, but in fa ct cre ated11 some o f it. Additionally, he used the intern et to acquire info rma tion that h e us ed in his p rod uctio n of for ged doc um ents . We are therefor e sati sfied t hat the imposit ion of the inter net restriction here doe s not constitut e plai n error that must

be correct ed.

C. The Relati onship t o the Goals of Sent encing Finally, Landry c halle nges the dr ug and work-rel ated

con ditio ns a s no t reas ona bly rela ted to the g oals of s ente ncin g. He cites our

decisi on in United Stat es v. Loy , 191 F.3d 360 ( 3d Cir. 1999) , for t

he proposi tion t

hat “the condit ions of supe rvise d relea se must be r easonably relat ed to the goals of det errence , protection of the public and rehabil itation of the defendant. ” Id. at 371. Earli er in t

hat opini on, we cit ed “the need for the sentence imposed to det er futur e crimi nal conduct , prot ect the public, and provide t

he defendant wit

h necessar

y t raini ng, medical care, or

other cor

recti onal tr eatment. ” Id. at 370 (ci ting 18 U .S.C . § 35 53( a)(1 ) & (2)). Given the evi dence we cite d earli er as a bas is for the drug

re st ri ct io n a nd t

he le gi ti mac y of

th e g oa l o f r eh ab il it at io n, we12 cann ot say that th e D istrict Co urt com mitted plain e rror in imposing t

he condit ion. We note a gain that the r ecord maynot sup port t he c onc lu si on t

hat Landry has a s er io us dru g pr obl em, but it also does not co mp el the c onclu sion th at he c om pletely lacks “any subs tance abus e problem. ” See United Stat es v. Modena , 302 F.3d 626, 636 (6th Cir . 2002) ( rejec ting a s imil ar drug tr eatment condi tion as an abuse of di scret ion because “the PSR specifica lly

stat es that

the probation offi cer ‘has no informa tion pertaining to su bstance ab use/use pe rtaining to M r. Modena’”). Simi larly, our stated basi s for the work restriction provides a reasonabl e relations hip between t he rest riction and the goal of protec ting t

he public , as Landry ’s previ ous explo itation o f at leas t one m inor su gges ts that he migh t revert to similar depravit

y if r egularly

exposed to other minors. IV. For the r easons set

forth above , we find that the Distri ct Co urt did n ot com mit pla in erro r mer iting inter ventio n by this Court in i mposing the s upervis ed rele ase conditions chal lenged by Landry . Accordingly, the sent ence dispe nsed bythe Dist rict Co urt is aff

irme d.