## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 98-2402

___________ United States of America, * * Appellee, *

* Appeal from the United States v. * District Court for the District * of North Dakota. Jeffrey Clark Vincent, * * Appellant. *

_____________ Submitted: October 20, 1998

Filed: February 1, 1999

_____________ Before FAGG, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

_____________ FAGG, Circuit Judge.
Jeffrey Clark Vincent appeals his conviction and sentence for possession o f child pornography in violation of 18 U.S.C. §§ 2252(a)(4)(B), (b)(2) (1994). W e affirm.

After Vin cent pleaded guilty in North Dakota state court to gross sexua l impositionon a child, the court sentenced Vincent to five years in prison. The court suspended all but one mo nth of the sentence so long as Vincent complied with certain conditions of supervised probation. These probation conditions prohibited Vincen t from violating any criminal laws, from leaving the state without permission of his-2-

probation officer, and from having any unsupervised contact with children other than his own children or stepdaughter, or when deemed appropriate by his probation officer, his stepdaughter’s friends. The conditions also required Vincent to undergo both a sexual and a psychological evaluation and to complete any recommended treatment

. To ensure Vincent’s compliance with the probation conditions, Vincent was required to submit to a warrantless search of his perso n or home by any probation officer at any time.

Two years after Vincent’s release from prison, his probation officer learne d Vincent was violating sever al of his probation conditions. According to the probation officer’s information, Vincent had improperly taken children on a rafting trip outside the state and was creating computer-generated offers to take his step-daughter’s friends
on o ut-of-state trips. Based on the probation officer’s affidavit, the state filed a petition to revoke Vincent’s probation, and a state court issued an order to apprehend Vincen t. Later that day, Vincent’s probation officer and local law enforcemen t apprehended Vincent and searched his home, seeking corroborating evidence o f Vincent’ s probation violations. During the search, the officers found about 15 0
co mputer diskettes containing child pornography that Vincent had downloaded fro m the Interne t. Vincent was later charged with possession of child pornography i n federal court. After the federal district court denied Vincent’s motion to suppress, he conditionally pleaded guilty.

Vincent contends the search of his home was unrea sonable and thus violated the Four thAmendment. “A probationer’s home, like anyone else’s, is protected by th e Four thAmendment’s requirement that searches be ‘reasonable.’” Griffin v

. Wisconsin , 483 U.S. 868, 873 (1987). Nevertheless, officers may search a person’s home w ithout a warrant based on probable cause “when ‘special needs, beyond th e normal need for law enforcement, make the warrant and probable-cause requirement impracticab le.’” Id. (quoting New Jersey v. T.L.O., 469 U.S. 325, 251 (1985)). A state’s op eration of a probation system presents special needs. See id. at 873-74

. Because probationers-3-

en joy only “‘conditional liberty properly dependent on observance of specia l [probation] restrictions,’ ” id. at 874 (quoting Morrissey v. Brewer , 408 U.S. 471, 480 (1972) ), states may closely supervise probationers and impinge on their privacy to a greate r extent than the general public to ensure the probationer observes th e restrictions, see id. at 8 75. The search of a probationer’s home without a warrant and wi th less than probable cause does not violate the Fourth Amendment if the search is conducte d under state probation regulations that satisfy the Fourth Amendment’ s reasonableness standard. See id. at 880 (approving warrantless search co nducted under Wisco nsinprobation regulation permitting warrantless searches when officers hav e reasonable grounds to believe probation violation occurred). In other words , regulations may establish reasonableness for pro bationary searches. See United States v. Schoenrock , 868 F.2d 289, 292-93 (8th Cir. 1989). In addition, probationary search conditions are reasonable when the sentencing court finds special search conditions are necessary. See id. at 293. In sum, “a probationer can be subject to a warrantles s search under a statutory scheme or pursuant to the findings of a sentencing court. ” Rowe v. Lamb , 130 F.3d 812, 814 (8th Cir. 1997).
Here, the state probation scheme provides for warrantless searches. According to Nor th Dakota law, the court may impose any probation conditions deeme d reasonabl y necessary to ensure the defendant will lead a law-abiding life. See N.D

. Cent. Code§ 12.1-32-07.2 (1997). Every probation carries an explicit condition that th e defendant not commit another offense during probation. See id. The court ma y also impose other conditions deemed appropriate, including that the probationer will submit his or her person or home to a warrantless search at anyti me. See id. § 12.1-32- 07.4(n). The sentencing court deemed this warrantless search requirement reasonably necessary to ensure Vincent would not commit more crimes.

When the terms of a probation order provide the probationer is subject to a warrantless search of his or her home at any time, and that term is reasonable, th e probationer has no Fourth Amen dment right to be free from a warrantless search. See-4-

Rowe , 130 F.3d at 814. The warrantless search requirement is reasonable in Vincent’s
case. Proh ibitions on violations of the law are not self-executing, and a “searc h condition has an obvious relation to pub lic safety in making it easier . . . to enforce the prohibitions .” United States v. Kills Enemy , 3 F.3d 1201, 1203 (8th Cir. 1993). The warrant less search requirement is reasonably related to the probation goals o f rehabilitation and public protection. See Schoenrock , 868 F.2d at 291.

Vincen t argues for the first time in his reply brief that North Dakota’ s wa rrantless probationary search provision is overbroad because it does not requir e “reasonabl e grounds” or “reasonable suspicion” to conduct a search. We do no t generally consider new arguments raised in a reply brief. See Dyer v. United States , 23 F.3d 142 1, 1424 (8th Cir. 1994). Even if the search provision is overbroad , however, the search is permissible if the overbroad search authority is narrowly an d pr operly exercised. See Schoenrock , 868 F.2d at 292; Kills Enemy , 3 F.3d at 1203

. The search authority was narrowly and properly exercised in this case. The searc h took place only after the probation officer obtained independent evidence that Vincent had violated a condition of his release by taking children on an out-of-state rafting trip and by offering to take other children on trips outside the state. The probation officer had evidence showing Vincent posed a continuing threat to children, and the searc h
was conducted for related evidence. The actions of Vincent’s probation officer i n conducti ng the warrantless probation search of Vincent’s home was reasonable an d appropriate under the circumstances. We conclude the district court properly denied Vincent’s motion to suppress the evidence seized in the search.

Vi ncent next contends the district court committed error in denying his motion to di smiss the charges against him. According to Vincent, application of § 225 2(a)(4)(B) to him violates his constitutional right to privacy. Vincent relies o n Stanley v. Georgia , 394 U.S. 557 (1969), which held states cannot criminaliz e poss ession of obscenity involving adults. Vincent’s reliance is misplaced. Th e Constitution offers less protection when sexually explicit material depicts minors rather-5-

than adults. See New York v. Ferber , 458 U.S. 747, 756 -64 (1982). Thus, in Osborne
v. Ohio , 495 U.S. 103, 111 (1990), the Supreme Court upheld a statute prohibitin g mere possession of child pornography. Vincent recognizes Ferber and Osborne , bu t argues w e should follow Stanley . We hold Osborne controls and defeats Vincent’ s claim.
Vincent also challenges the application of U.S. Sentencing Guidelines Manual § 2G2.4(b)(3) (1997), which requires a two-level increase to the defendant’s bas e offense level when “the defendant’s possession of [child pornography] resulted from the defenda nt’s use of a computer.” Vincent asserts Congress did not intend a n increase for receivers rather than senders of child pornography because Congres s directed the increase “if a computer was used . . . to transpor t . . . the visual depiction.” H.R. 1240, 10 4th Cong., 109 Stat. 774 (1995). Vincent’s interpretation is strained at bes t. Besides, if Congress did not agree with the way the Sentencing Commissio n impleme nted its directive, Congress could have revoked or amended § 2G2.4(b)(3 ) after its issu ance by the Sentencing Commission. See Mistretta v. United States , 488 U.S. 361, 393-94 (1989). Given Congress’s supervisory role, the Sentencin g Commission’s formulation of the Guidelines is not subject to judicial review unless the Commission ove

rsteps constitutional bounds. See United States v. Hill , 48 F.3d 228, 231 (7th Cir. 1995). Vincent asserts the Commission has done so. According t o Vincent, § 2G2.4(b)(3) violates due process because there is no rational justification fo r penalizing an individual who obtains child pornography from the Internet mor e severely than an individual who buy videos, magazines, or photographs from suppliers. We disagree. Section 2G2.4(b)(3) “punishes defendants for using a particularl y insidious method of acquiring chil d pornography. The Internet has become a common
means of transmitting obscene and illicit material. In addition, it is difficult to detect and pre vent this traffic in cyberspace. [Section] 2G2.4(b)(3) provides an extr a dete rrent to those inclined to pursue illicit pictures in the anonymity of the compute r world.” United States v. Fellows , 157 F.3d 1197, 1202 (9th Cir. 1998).-6-

Last, Vincent argue s pro se that his house is not a part of the United States and thus there is no federal criminal jurisdiction in this case. The argument is raised fo r the first time in Vincent’s reply brief, so we need not consider it. See Dyer , 23 F.3d at 1424. The argument is meritless anyway.

We thus affirm Vincent’s conviction and sentence.

A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.