UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 00-4215

PETER HENSON,

Defendant-Appellant. 

Appeal from the United States District Court

for the Western District of North Carolina, at Asheville.

Lacy H. Thornburg, District Judge.

(CR-99-68)

Submitted: August 24, 2001

Decided: October 19, 2001

Before TRAXLER, KING, and GREGORY, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished per

curiam opinion. 

COUNSEL

Aaron E. Michel, Charlotte, North Carolina, for Appellant. Mark T.

Calloway, United States Attorney, Brian Lee Whisler, Assistant

United States Attorney, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 
OPINION

PER CURIAM: 

Peter Henson pled guilty to receiving or distributing over 100 pictures of children engaged in sexually explicit conduct that had been

transported in interstate commerce, 18 U.S.C.A. § 2252(a)(2) (West

2000), and was sentenced to a term of eighty-four months imprisonment. He contests his sentence, alleging (1) that the district court

erred in finding that emails evidencing prior distributions of child pornography were properly included as relevant conduct constituting a

five-level enhancement under U.S. Sentencing Guidelines Manual

§ 2G2.2(b)(2) (1998);* (2) that the district court erred in making a

two-level enhancement under USSG § 2G2.2(b)(5) for use of a computer to transmit child pornography based on Henson’s emails; and

(3) that the district court abused its discretion by imposing overly

restrictive special conditions of supervised release. We affirm the district court’s order imposing special conditions of supervised release,

but vacate the sentence of imprisonment and remand for resentencing

without the contested enhancements. 

I.

In May 1997, Morgan Marks was arrested in Texas for promoting

child pornography through the Internet. Peter Henson was identified

as one of his customers. Undercover officers working with the U.S.

Postal Inspection Service offered Marks’ customers a CD-ROM disk

containing child pornography. In April 1999, Henson ordered the CDROM disk through the mail, and a controlled mail delivery of the disk

to Henson was made on July 22, 1999. Immediately afterward, a

search warrant was executed at Henson’s residence. Henson turned

*At sentencing Henson maintained that a five-level enhancement

under USSG § 2G2.2(b)(2) required the distribution of child pornography for pecuniary gain. Henson, however, abandoned this position on

appeal. Nonetheless, this Court’s decision in United States v. Williams

precludes such an argument. 253 F.3d 789, 793 (4th Cir. 2001) (concluding that a sentencing enhancement for distribution, as used in § 2G2.2,

applies to disseminations other than those made solely for pecuniary

gain). 

2 UNITED STATES v. HENSON
over to investigators another disk he had previously ordered from

Marks containing child pornography. 

Henson’s computer was examined, and deleted emails were discovered, some with images attached, which revealed that Henson had

solicited, received, and distributed child pornography through the

Internet. The email messages indicated that Henson had been bartering child pornography rather than selling it. Henson also possessed

several Polaroid pictures of nude children under twelve in sexual

positions. He admitted taking some of the pictures. 

Henson pled guilty to receiving over 100 pictures involving the use

of minors engaged in sexually explicit conduct between April 30,

1997, and July 22, 1999, in violation of 18 U.S.C.A. § 2252(a)(2).

This charge involved the CD-ROM disk Henson ordered through the

mail during the investigation. He was not charged with offenses arising from the use of his computer to receive and distribute child pornography, or to receive the notice or advertisement of child

pornography. 

The guideline applicable to Henson’s offense was USSG § 2G2.2.

The probation officer recommended, among other enhancements, a

five-level increase under § 2G2.2(b)(2), for an offense involving distribution, and a two-level increase under § 2G2.2(b)(5), for use of a

computer in the transmission of the material. Henson objected to the

enhancement under § 2G2.2(b)(2), arguing that the emails were not

relevant conduct because his offense of conviction did not include

distribution. He asserted that the emails could not be considered relevant conduct under USSG § 1B1.3(a)(2), i.e., conduct that was part

of the same course of conduct as his offense of conviction, because

his offense was not one that could be grouped under USSG

§ 3D1.2(d). He objected on the same ground to the recommended

enhancement under § 2G2.2(b)(5) for use of a computer to transmit

the material or a notice or advertisement of the material. 

At the sentencing hearing, the district court summarily overruled

his objections. The court specifically found that the enhancement

under § 2G2.2(b)(2) did not require distribution for pecuniary gain.

The court imposed a sentence of eighty-four months imprisonment

UNITED STATES v. HENSON 3
and five years supervised release. The court imposed the following

special conditions of supervised release:

Defendant shall have no unsupervised contact with children

under the age of 18 or with any victim in this case, as

revealed in photographs. Defendant shall participate in mental health and sex offender treatment programs as directed

by the probation officer, which may include physiological

and psychological testing to determine the defendant’s sexual orientation and patterns of sexual arousal and shall

include a psychiatric program. Defendant shall participate in

a psychiatric treatment program as directed by the probation

officer and shall take any and all prescribed medications as

directed by the treatment provider. Defendant shall abstain

from the use of alcohol or illegal drugs. Defendant shall

work at a job which must be pre-approved by the probation

officer. Defendant shall not possess any pornography or sexually explicit material. Defendant must comply with any

state or local offender registration laws. Defendant shall not

possess or use any computer which has the capacity to be

connected to any network. Standard condition 17, which

includes search procedures, shall include search of computer

hard drives, computer disks and any other computer files the

defendant may possess. 

Henson’s attorney objected "to any condition that would restrict his

First Amendment rights as far as restrictions on materials that would

not constitute contraband . . . and . . . any condition that would require

him to waive his constitutional right to remain silent as far as providing sexual history." The district court overruled the objection without

comment. 

II.

The district court’s legal determinations concerning guideline

application are reviewed de novo. United States v. Blake, 81 F.3d 498,

503 (4th Cir. 1996). Henson contends first that the emails he distributed were not relevant conduct because his offense of conviction is

not one that must be grouped under USSG § 3D1.2(d) when there are

multiple counts, and thus his relevant conduct does not include acts

4 UNITED STATES v. HENSON
he committed that were part of the same course of conduct or common scheme or plan as the offense of conviction. We agree. 

For offenses in which the offense level is not determined by aggregate harm, relevant conduct includes those acts that occurred during

the commission of the offense of conviction, in preparation for that

offense, or in the course of attempting to avoid detection or responsibility for that offense. USSG § 1B1.3(a)(1)(A). On the other hand, for

offenses in which aggregate harm determines the offense level (and

which must be grouped under USSG § 3D1.2(d) in the case of multiple counts), relevant conduct includes "all acts and omissions

described in subdivisions (1)(A) and (1)(B) above that were part of

the same course of conduct or common scheme or plan as the offense

of conviction." USSG § 1B1.3(a)(2). 

Henson’s offense of conviction was not one which must be

grouped under USSG § 3D1.2(d) because under USSG § 2G2.2, the

offense level is not determined on the basis of quantity or other measure of aggregate harm. Consequently, child pornography that Henson

received or delivered, apart from the CD-ROM delivered by the

agents on July 22, 1999, could not be considered relevant conduct

simply because Henson received or distributed it as part of the same

course of conduct. Therefore, the district court erred in making the

enhancement under § 2G2.2(b)(2). 

For the same reasons, the two-level enhancement under

§ 2G2.2(b)(5) for use of a computer to transmit the material or a

notice or advertisement of the material was error because the offense

of conviction did not involve use of a computer, even though Henson

used a computer to obtain child pornography on other occasions. 

Henson also argues that there is a conflict between § 1B1.3(a)(2)

and § 2G2.2(b)(2) and that the latter should prevail over the former,

citing United States v. Cook, 181 F.3d 1232, 1235 (11th Cir. 1999)

(holding that reasonable foreseeability provision of § 1B1.3(a)(1)(B)

does not apply to § 3C1.2 adjustment for reckless endangerment). We

find no conflict between § 1B1.3(a)(2) and § 2G2.2(b)(2). An offense

covered by § 2G2.2 simply does not fall under § 1B1.3(a)(2) because

it is not an offense "of a character for which § 3D1.2(d) would require

grouping of multiple counts. . . ." USSG § 1B1.3(a)(2). 

UNITED STATES v. HENSON 5
III.

Henson claims that the court impermissibly restricted his First

Amendment right to possess materials that are not contraband, and

that the condition that he comply with state or local sex offender registration laws restricts his Fifth Amendment right to remain silent

because such a program would likely require him to provide his sexual history, self-report any violations of law, and take polygraph tests.

The sentencing court may impose "any . . . condition [of supervised

release] that it considers to be appropriate," 18 U.S.C.A.

§ 3583(d)(1)-(3) (West 2000 & Supp. 2001), as long as any special

condition is:

(1) . . . reasonably related to the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D); 

(2) involves no greater deprivation of liberty than is reasonably necessary for the purposes set forth in section

3553(a)(2)(B), (a)(2)(C), and (a)(2)(D); and 

(3) is consistent with any pertinent policy statements

issued by the Sentencing Commission pursuant to 28 U.S.C.

994(a). 

The purposes mentioned in § 3583(d)(2), and set out in 18

U.S.C.A. § 3553(a)(2) (West 2000), are "the need for the sentence

imposed . . . to afford adequate deterrence to criminal conduct; to protect the public from further crimes of the defendant; and to provide

the defendant with needed educational or vocational training, medical

care, or other correctional treatment in the most effective manner." 18

U.S.C.A. § 3553(a)(2); see United States v. Bee, 162 F.3d 1232, 1235

(9th Cir. 1998). The district court’s decision to impose special conditions of supervised release is reviewed for abuse of discretion. United

States v. Crandon, 173 F.3d 122, 127 (3d Cir.), cert. denied, 528 U.S.

855 (1999). 

A special condition of supervised release may restrict fundamental

rights when the special condition "is narrowly tailored and is directly

6 UNITED STATES v. HENSON
related to deterring [the defendant] and protecting the public." Id. at

128. Restrictions affecting constitutional rights "‘are valid if directly

related to advancing the individual’s rehabilitation and to protecting

the public from recidivism.’" Id. (quoting United States v. Ritter, 118

F.3d 502, 504 (6th Cir. 1997)). 

In light of Henson’s conviction for receiving more than 100 images

of child pornography and his prior conviction for taking indecent liberties with a minor, we find that the restriction on his possession of

any sexually explicit material was not overly broad and was sufficiently related to the goals of rehabilitating Henson and protecting the

public. 

Henson also maintains that participation in a treatment program

that requires him to provide a sexual history would require him to

confess to uncharged crimes and violate his Fifth Amendment right

against self-incrimination, and suggests that his supervised release

might be revoked for "bad thoughts." However, under USSG

§ 5D1.3(d)(5), p.s., the district court may impose a special condition

that requires the defendant to "participate in a mental health program

approved by the United States Probation Office." Such programs are

directed toward helping a defendant overcome any sexual deviance

and assessing the threat he might pose to society, rather than to collecting information that could be used to incriminate him. See Walrath v. United States, 830 F. Supp. 444, 446-47 (N.D. Ill. 1993). 

We therefore affirm the special conditions of supervised release

imposed by the district court, but vacate the sentence of imprisonment

and remand for resentencing in accord with this opinion. We dispense

with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument

would not aid the decisional process.

AFFIRMED IN PART, VACATED IN PART,

AND REMANDED

UNITED STATES v. HENSON 7