FILED

United States Court of Appeals

Tenth Circuit

May 15, 2015

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

 

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 14-2201

GEORGE ALLEN,

Defendant - Appellant.

(D.C. No. 2:09-CR-01609-ERW-1)

(D.N.M.)

 

ORDER AND JUDGMENT*

 

Before HARTZ, BALDOCK, and TYMKOVICH, Circuit Judges.**

 

In June 2009, Defendant George Allen plead guilty to possession of child

pornography in violation of 18 U.S.C. § 2252(a)(4)(B). A search of Defendant’s

home computer in Las Cruces, New Mexico had revealed several videos of child

pornography, including videos of children as young as four years old being sexually

abused by an adult male. The district court sentenced Defendant to 57-months

imprisonment to be followed by a five-year term of supervised release.

*

 This order and judgment is not binding precedent except under the doctrines

of law of the case, res judicata, and collateral estoppel. It may be cited, however,

for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

** After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

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Defendant completed his term of imprisonment and began serving his term of

supervised release in January 2014. A condition of Defendant’s release prohibited

him from possessing any materials depicting or describing sexually explicit conduct,

including child pornography. In July 2014, the Government filed a petition to revoke

Defendant’s supervised release based on his possession of adult pornography. 

Following a hearing, the district court found Defendant had violated a condition of

his supervised release. The court sentenced Defendant to an additional six-months

imprisonment, this time to be followed by a ten-year term of supervised release. 

Defendant appeals. Our jurisdiction arises under 18 U.S.C. § 3742(a).

On appeal, Defendant does not challenge the facts leading to the revocation

of his supervised release. Rather, Defendant contends the court did not adequately

set forth reasons on the record justifying its imposition of a ten-year term of

supervised release. Defendant further contends the court abused its discretion in

imposing a special condition of supervised release similar to the one he was found

to have violated. Rejecting both contentions, we summarily affirm.

I.

Because Defendant did not object to the district court’s imposition of a tenyear term of supervised release at sentencing, our review of that term is for plain

error. We first ask whether error occurred at all. See United States v. Edwards, 782

F.3d 554, 562 (10th Cir. 2015). Because no error occurred, our inquiry there ends.

2

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At the revocation hearing, the court found:

After evaluating the [18 U.S.C. § 3553(a)] factors, the court finds the

Defendant has violated the conditions of his supervision by possessing

. . . materials depicting adult pornography.

Furthermore, the Defendant possessed journals containing information

about concealing illegal online activities.

The journals also include lists of pornographic movies, web sites, and

file names of suspected child pornography.

The information contained in the journals reflect the Defendant was not

focused on rehabilitation or treatment, but on hiding his activities and

continuing to seek out pornographic material.

Additionally, the journals contain statements written by Defendant

which indicates he believes there’s nothing wrong with having sex with

children.

The Defendant did not display victim empathy during the course of his

sex offender treatment.

The Defendant’s . . . intentions, as indicated in his journals, coupled

with his lack of victim empathy, reveal he continues to present a danger

to the community.

In addition to the foregoing excerpt, the sentencing transcript considered in its

entirety reveals the district court carefully considered this matter. The court

explained that it intended to impose upon Defendant a “sentence that is sufficient but

not greater then necessary to achieve sentencing objectives of just punishment,

general deterrence, and incapacitation; but, more importantly, that, hopefully, will

instill upon him that his behavior must change.”

3

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In its statement of reasons for imposing a particular sentence, the district court

should set forth enough on the record to satisfy us that it has “a reasoned basis for

exercising [its] own legal decisionmaking authority.” Rita v. United States, 551 U.S.

338, 356 (2007). We are so satisfied. The district court did not commit error, let

alone plain error, by imposing a ten-year term of supervised release upon Defendant.1

II.

While Defendant did not object in the district court to his term of supervised

release, he did suggest, albeit equivocally, that the following special condition of his

supervised release was overbroad: “The defendant shall be prohibited from viewing

or possessing any material including photographs, images, books, writings, drawings,

videos or video games, depicting and/or describing sexually explicit conduct or child

pornography as defined in 18 U.S.C. § 2256.” The district court rejected

Defendant’s suggestion:

[I]t should be apparent the intended purpose here is to keep

pornographic material out of [Defendants] hands, keep him away from

it, keep him from searching for it. You know, if there are certain books

that are available to the children and everyone else in the world that

have depictions of . . . a sexual nature, . . . my suspicion is that

[Defendant] is not going to be put back in prison for having a library

book that might have some symbol or suggestion that [might appeal to]

a prurient interest; . . .[Defendants] days of possessing child

pornography . . . are over, and he must understand that. And if he

doesn’t, he’s just going to be back in here and the rest of his life is

going to be in and out of prison.

1

 Because Defendant was originally convicted of violating 18 U.S.C. § 2252,

the maximum authorized term of supervised release was life. Id. at 3583(k).

4

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District courts have considerable discretion in setting conditions of supervised

release. United States v. Hanrahan, 508 F.3d 962, 970 (10th Cir. 2007). But any

condition imposed must comport with the Constitution and satisfy the statutory

requirements set out in 18 U.S.C. § 3583(d), which references the § 3553(a) factors. 

United States v. Hahn, 551 F.3d 977, 982 (10th Cir. 2008). First, a condition must

be reasonably related to (a) the nature and circumstances of the offense, (b) the

defendant’s history and characteristics, (c) the deterrence of criminal conduct, (d) the

protection of the public from further crimes of the defendant, or (e) the defendant’s

educational, vocational, medical, or other correctional needs. Second, a condition

must involve no greater deprivation of liberty than is reasonably necessary to achieve

the purpose of deterring criminal activity, protecting the public, and promoting the

defendant’s rehabilitation. Third, a condition must be consistent with any pertinent

Sentencing Commission policy statements. Finally, where a condition restricts

access to materials protected by the First Amendment, the court must balance the

§ 3553(a) factors against constitutional concerns. See United States v. Mike, 632

F.3d 686, 692 (10th Cir. 2011).2

2

 In United States v. Mike, 632 F.3d 686 (10th Cir. 2011), defendant pled

guilty to assault resulting in serious bodily injury. Because Mike had committed a

sex offense in 1997, the district court imposed the standard supervised release

conditions for sex offenders as well as numerous special conditions. Mike argued,

as Defendant does here, that a special condition of supervised release prohibiting him

from possessing sexually explicit materials was overly broad and effected a greater

denial of liberty than necessary to achieve the goals of sentencing. “Applying a

(continued...)

5

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Here, the reasons for the district court’s imposition of the special condition

of supervised release to which Defendant objects are painfully apparent from the

record. In view of Defendant’s past history with, and continuing affinity for, child

pornography, the special condition has a plainly legitimate sweep—a sweep

delimited by the definition of “sexually explicit conduct” contained in 18 U.S.C.

§ 2256. See United States v. Paul, 274 F.3d 155, 167 (5th Cir. 2001) (“Sentencing

courts must inevitably use categorical terms to frame the contours of supervised

release conditions. Such categorical terms can provide adequate notice of prohibited

conduct when there is a commonsense understanding of what activities the categories

encompass.”). The facts the Government presented in support of the petition to

revoke supervision establish that Defendant has yet to acknowledge a problem with

his affinity for children and child pornography. See United States v. Wiedower, 634

F.3d 490, 497 (8th Cir. 2011) (holding the district court acted within its discretion

when it prohibited defendant from “possessing pornography or sexually explicit

material” because the record supported the conclusion that defendant had a “deeply

rooted affinity for child pornography”). Moreover, the challenged condition is

reasonably related to, and involves no greater deprivation of liberty than is

2

(...continued)

commonsense approach,” we concluded under plain error review that “[g]iven the

current state of the law, we cannot say that it is clear or obvious that the imposition

of a condition prohibiting a defendant, who has committed a sexual offense, but not

a sexual offense involving pornography, from possessing legal, adult pornography

is a greater deprivation of liberty than is reasonably necessary.” Id. at 701.

6

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reasonably necessary for the purposes of, the pertinent § 3553(a) factors. In

particular, the special condition appears appropriately tailored to serve the purposes

of deterring criminal conduct, promoting Defendant’s rehabilitation, and protecting

children from exploitation.

Accordingly, the judgment of the district court is AFFIRMED.

Entered for the Court,

Bobby R. Baldock

United States Circuit Judge

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