2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-16-2009

USA v. Brian Mizwa

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-4251

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Recommended Citation

"USA v. Brian Mizwa" (2009). 2009 Decisions. Paper 651.

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UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 08-4251

_____________

UNITED STATES OF AMERICA

v.

BRIAN MIZWA,

 Appellant

__________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Criminal No. 06-cr-00374-1)

District Judge: Honorable Gary L. Lancaster

__________

Submitted Under Third Circuit LAR 34.1(a)

on September 8, 2009

Before: SCIRICA, Chief Judge, and

RENDELL and ALDISERT, Circuit Judges.

(Filed: Septembe 16, 2009)

__________

OPINION OF THE COURT

__________

RENDELL, Circuit Judge.
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On March 9, 2007, Brian Mizwa pleaded guilty to one count of Coercion and

Enticement of a Minor to Engage in Sexual Activity, in violation of 18 U.S.C. § 2422(b). 

The District Court sentenced him to a statutory minimum term of 60 months’

imprisonment, followed by a five-year period of supervised release. On appeal, Mizwa

challenges a condition of his supervised release that limits his association with minor

children, arguing that the condition is unduly onerous and that the District Court did not

adequately consider the § 3553 sentencing factors. Because we conclude that the District

Court properly imposed the condition, pursuant to 18 U.S.C. § 3583(a), we will affirm the

judgment of the District Court.

Mizwa’s guilty plea arose out of his approximately month-long online interaction

in September of 2006 with a person he thought was a 14-year-old girl named “Hannah,”

but who was actually an undercover FBI agent. Mizwa’s instant messages and e-mails

suggested that he and “Hannah” meet in person but keep their relationship a secret. He

sent her pictures of underwear and a bikini that he had bought for her to wear when they

met, expressed his desire for her to take his clothes off and perform oral sex on him, and

for her to wear a baby diaper and sit on his lap. Mizwa set up a rendezvous with

“Hannah” at a shopping center; when he went to the spot where he had arranged to meet

her, FBI agents arrested him. He admitted to soliciting a minor for sexual activity.

Mizwa was released on bond after his arraignment, on October 24, 2006, and

restricted from having contact with minors without authorization from Pretrial Services. 
 We have jurisdiction under 28 U.S.C. § 1291. 1

3

On November 29, 2006, local police told the Probation Office that Mizwa was living with

a woman who had young children. He was arrested and his bond revoked. After he

pleaded guilty, on March 9, 2007, Mizwa was released on bond with the same condition

that he not have contact with minors without authorization. On August 24, 2007, Pretrial

Services filed another petition to have his bond revoked because of allegations that

Mizwa had once again visited the home of the woman with young children. He was not

detained. 

On October 11, 2007, the District Court sentenced Mizwa to the statutory

minimum term of 60 months, followed by a five-year term of supervised release. The

court imposed a number of special conditions, one of which is relevant to Mizwa’s

appeal. It directs that Mizwa:

shall not associate with children under the age of 18, except in the presence of a

responsible adult who is aware of the nature of the defendant’s background and

current offense and who has been approved by the probation officer.

(App. 5.)

Mizwa’s counsel objected to the condition at sentencing. Therefore, we review the

District Court’s imposition of the condition of supervised release for abuse of discretion. 

See, e.g., United States v. Voelker, 489 F.3d 139, 143 n.1 (3d Cir. 2007); United States v.

Smith, 445 F.3d 713, 716 (3d Cir. 2006). 

1
4

A district court has wide discretion in imposing sentences. 18 U.S.C. § 3583

enumerates a number of mandatory and discretionary conditions of supervised release,

and provides that “[t]he court may order, as a further condition of supervised release . . .

any other condition it considers to be appropriate.” 18 U.S.C. § 3583(d). The condition

must be reasonably related to the sentencing factors set forth in § 3553(a), the nature and

circumstances of the offense and the history and characteristics of the defendant, and

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

adequate deterrence, to protect the public from future crimes, and to rehabilitate the

defendant. 18 U.S.C. § 3553(a); 18 U.S.C. § 3583(d); see also Voelker, 489 F.3d at 144;

United States v. Pruden, 398 F.3d 241, 248-49 (3d Cir. 2005). 

Mizwa argues that the condition restricting his contact with minors is not

reasonably related to the § 3553(a) factors. He contends that his offense was related

primarily to his emotional immaturity and difficulties with intimate relationships, not a

sexual interest in young girls, and therefore the condition is unduly onerous. We

disagree. The special condition is closely related to the nature and circumstances of

Mizwa’s offense: he targeted a person he thought was a young teenaged girl and solicited

her for sexual activity, and cautioned her to keep their relationship secret because of her

age. A condition of supervised release that restricts Mizwa’s contact with minors could

hardly be more related to the nature and circumstances of his offense. That Mizwa does
5

not have a history of violent crime does not lessen the seriousness of his offense or his

intended victimization of a young girl.

Nor does the condition involve a greater deprivation of liberty than necessary,

particularly since Mizwa violated the conditions of his release on bond after his

arraignment but before his guilty plea. The association restriction is designed to protect

the public, to promote Mizwa’s rehabilitation, and to deter him from future crimes by

keeping him away from children and teenagers; his own psychologist concluded that

Mizwa continues to show sexual interest in adolescent females. 

Mizwa also argues that the District Court did not sufficiently explain why it

imposed the association restriction. Again, we disagree. The court noted during

sentencing that it was imposing a “lengthy period of supervision with extensive

conditions to monitor [Mizwa’s] conduct upon release” and that the sentence would

“address the sentencing goals of punishment, rehabilitation and deterrence.” (App.

47-48.) 

Mizwa also claims that the District Court refused to give his psychologist’s report

due weight, but the court referred to the report during sentencing, noting that “[t]he

psychologist concluded that defendant is both emotionally and socially immature and

relatively inexperienced with regard to adult relationships.” (App. 40.)

Our court has addressed similar conditions of supervised release a number of

times, and the condition imposed on Mizwa by the District Court is well within the
6

bounds that we have established. In United States v. Voelker, 489 F.3d 139 (3d Cir.

2007), we vacated a condition where the defendant was prohibited from associating with

minors without prior approval of his probation officer, and any contact that did occur was

to be in the presence of an adult familiar with the defendant’s crime. Although the

language of the condition in Voelker is similar to that of the condition at issue here, the

condition in Voelker was imposed for the defendant’s entire life. Mizwa’s condition

applies for only five years. One of our concerns in Voelker was that the district court had

not made clear whether it intended the lifetime ban to extend to the defendant’s own

children. See 489 F.3d at 144. Voelker had exposed his young daughter’s bare buttocks

to a web camera, and we declined to apply the presumption from United States v. Loy,

237 F.3d 251, 270 (3d Cir. 2001) (“Loy II”), that absent a clear sign from the District

Court, a condition that restricts a defendant’s contact with minors is construed to apply

only to other people’s children, not the defendant’s own. Here, Mizwa does not have

children of his own, and we see no reason why the Loy II presumption would not apply to

any children he might have in the future. Mizwa’s situation is distinguishable from that

in Voelker. Further, we note that Mizwa’s contact with children is not prohibited

outright; rather, it is subject to oversight by another responsible adult who knows his

history and who has been approved by his probation officer. Mizwa’s liberty interest in

associating freely with minors is not unduly burdened by this condition.
7

We conclude that the District Court did not abuse its discretion when it imposed a

condition of supervised release that restricted Mizwa’s association with minors. 

For the reasons set forth above, we will AFFIRM the Order of the District Court.