FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 10-30084

Plaintiff-Appellee, D.C. No.

v.  9:09-cr-00020-

W DWM-1 ILLIAM VERNON WILLIAMS,

Defendant-Appellant. OPINION 

Appeal from the United States District Court

for the District of Montana

Donald W. Molloy, District Judge, Presiding

Argued and Submitted

December 6, 2010—Seattle, Washington

Filed March 7, 2011

Before: Robert R. Beezer, Diarmuid F. O’Scannlain, and

Richard A. Paez, Circuit Judges.

Opinion by Judge O’Scannlain

3175
COUNSEL

Jessica L. Weltman, Assistant Federal Defender, Missoula,

Montana, argued the cause for the defendant-appellant, and

UNITED STATES v. WILLIAMS 3177
filed the briefs. Anthony Gallagher, the Federal Defender for

the District of Montana, and John Rhodes, Assistant Federal

Defender, Missoula, Montana, were also on the briefs.

Cyndee L. Peterson, Assistant United States Attorney, Missoula, Montana, argued the cause for the United States, and

filed the brief. Michael W. Cotter, the United States Attorney

for the District of Montana, was also on the brief.

OPINION

O’SCANNLAIN, Circuit Judge:

We must decide whether sentencing a sex offender to a life

term of supervised release constitutes “cruel and unusual”

punishment under the Eighth Amendment.

I

After having his computer seized by his probation officers,

William Vernon Williams admitted that it contained child

pornography. Williams told the officers that some of the files

depicted incest and child rape. A search of his computer confirmed this admission, showing that he had obtained videos of

children as young as ten being raped, and had visited websites

that depict graphic sexual violence against children. Williams

later admitted to having rape fantasies and being attracted to

girls between the ages of nine and sixteen. He also stated that

he most enjoyed child pornography that showed men raping

children. Williams pled guilty to receipt of child pornography,

in violation of 18 U.S.C. § 2252A(a)(2). 

This was not the first time that Williams got into trouble for

sexual misconduct. In 2000, Williams was convicted in Montana state court of two counts of sexual assault for an incident

involving two girls, ages nine and thirteen. The victims were

3178 UNITED STATES v. WILLIAMS
playing outside their home when Williams approached them

and asked for hugs. They said “no” and ran away, but Williams, who is 6′4′′, 285 lbs., followed them into their trailer

and cornered them in a bedroom. He then kissed the girls on

the lips and neck and squeezed their buttocks. Williams

received a ten-year sentence for these crimes, but obtained

supervised release in 2001. His supervised release was

revoked in 2002, however, because he skipped sex offender

treatment sessions and obtained employment at a fair frequented by children. 

Because of his sexual assault conviction, the district court

in the instant case determined that Williams was subject to a

mandatory minimum prison term of fifteen years for his child

pornography conviction. See 18 U.S.C. § 2252A(b)(1). The

court noted that the Sentencing Guidelines suggested a term

of supervised release of five years to life. See U.S.S.G.

§ 5D1.2(b). The court concluded that a lifetime of supervised

release was necessary in order to protect the community from

Williams. In making this determination, the court relied on

Williams’s prior sexual assault conviction and his apparent

obsession with child rape, as indicated by the pornography he

possessed and his own statements. 

During his supervised release, Williams will be required,

among other conditions, to meet regularly with his probation

officer, to allow the officer to visit his home, to participate in

substance abuse and sex offender treatment, to avoid the company of children, to permit unannounced searches of his computer, and to comply with the sex offender registration

requirements of any state where he resides. The district court

did allow Williams to serve his fifteen-year federal sentence

concurrently with the undischarged portion of his Montana

sexual assault sentence. Williams timely appealed.

UNITED STATES v. WILLIAMS 3179
II

On appeal, Williams admits that a challenge to his fifteenyear mandatory prison sentence is foreclosed by Ninth Circuit

precedent.1 He also concedes that his sentence of lifetime

supervised release was appropriate under U.S.S.G.

§ 5D1.2(b). He asserts, however, that a life term of supervised

release violates the Eighth Amendment’s prohibition against

“cruel and unusual punishments,” and is substantively unreasonable. 

[1] The Supreme Court has held that the Eighth Amendment contains a “narrow proportionality principle.” Graham

v. Florida, 130 S. Ct. 2011, 2021 (2010) (internal quotation

marks omitted). This principle “does not require strict proportionality between crime and sentence.” Id. But it does forbid

“extreme sentences that are grossly disproportionate to the

crime.” Id. Still, it is exceptionally difficult for a criminal to

show that his sentence is unconstitutionally disproportionate.

See United States v. Ewing, 538 U.S. 11, 21 (2003) (noting

that successful Eighth Amendment challenges in noncapital

cases are “exceedingly rare”).

 A

[2] There are two ways to succeed on a proportionality

claim. The first challenges the sentence as disproportionate

“given all the circumstances in a particular case.” Graham,

130 S. Ct. at 2021. In assessing the proportionality of particular sentences, we first compare the gravity of the offense to

the severity of the sentence. Id. at 2022. “In the rare case in

which this threshold comparison leads to an inference of gross

disproportionality the court should then compare the defendant’s sentence with the sentences received by other offenders

1

See United States v. Sinerius, 504 F.3d 737, 744-45 (9th Cir. 2007).

Despite this concession, Williams still objects to the fifteen-year mandatory minimum in order to preserve the objection. 

3180 UNITED STATES v. WILLIAMS
in the same jurisdiction and with the sentences imposed for

the same crime in other jurisdictions.” Id. (internal quotation

marks omitted).

[3] Williams does not come close to passing this test. Williams committed very serious crimes: sexually assaulting a

nine-year-old girl, sexually assaulting a thirteen-year-old girl,

and numerous instances of receiving child pornography.

Moreover, although supervised release limits a criminal’s liberty and privacy, it is a punishment far less severe than prison.

Cf. Graham, 130 S. Ct. at 2027 (noting that “life without

parole is the second most severe penalty permitted by law”

because it “deprives the convict of the most basic liberties”

and “means denial of hope” (internal quotation marks omitted)). A lifetime of supervised release is not inappropriate for,

much less grossly disproportionate to, the grave infractions

which Williams committed. Indeed, the Supreme Court has

upheld far tougher sentences for less serious crimes. See

Lockyer v. Andrade, 538 U.S. 63 (2003) (fifty years to life for

stealing $150 worth of videotapes under California’s threestrikes law); Ewing, 538 U.S. 11 (twenty-five years to life for

the theft of a few golf clubs under California’s three-strikes

law); Harmelin v. Michigan, 501 U.S. 957 (1991) (life without parole for possessing a large quantity of cocaine); Rummel

v. Estelle, 445 U.S. 263 (1980) (life with the possibility of

parole for obtaining money by false pretenses, the defendant’s

third nonviolent felony); Hutto v. Davis, 454 U.S. 370 (1982)

(forty years for possession of marijuana with intent to distribute and distribution of marijuana). 

[4] A life term of supervised release is particularly appropriate for sex offenders given their high rate of recidivism.

See H.R. Conf. Rep. No. 107-527, at 2 (noting that “sex

offenders are four times more likely than other violent criminals to recommit their crimes,” and that their “recidivism rate

[does] not appreciably decline as offenders age”). Williams is

himself a recidivist and has admitted to having rape fantasies,

a factor which the district court correctly found to be indicaUNITED STATES v. WILLIAMS 3181
tive of future dangerousness. See Rummel, 445 U.S. at 276

(noting that states have an interest “in dealing in a harsher

manner with those who by repeated criminal acts have shown

that they are simply incapable of conforming to the norms of

society”). It is therefore not at all excessive to require Williams to comply with such supervised release conditions as

attending sex offender treatment, avoiding the company of

children, and meeting regularly with a probation officer. See

United States v. Moriarty, 429 F.3d 1012, 1025 (11th Cir.

2005) (“[A] lifetime term of supervised release is not grossly

disproportionate to [the defendant’s] child pornography

offenses . . . .”). 

[5] Accordingly, we conclude that a life term of supervised

release is not unconstitutionally disproportionate given the

circumstances of this case.

B

[6] The second way to mount a proportionality challenge

is to show that an entire class of sentences is unconstitutionally disproportionate given the severity of the sentence, the

gravity of the crime, and the type of offender. Until last Term,

the Supreme Court had declared a sentence categorically disproportionate only where the penalty was death. See Kennedy

v. Louisiana, 554 U.S. 407 (2008) (prohibiting the death penalty for nonhomicide crimes); Roper v. Simmons, 543 U.S.

551 (2005) (prohibiting the death penalty for offenders who

committed their crimes before the age of eighteen); Atkins v.

Virginia, 536 U.S. 304 (2002) (prohibiting the death penalty

for the mentally retarded). Last Term, however, the Court

held that juvenile offenders cannot be sentenced to life in

prison without parole for nonhomicide crimes. See Graham,

130 S. Ct. at 2011. In so holding, the Court stressed that life

imprisonment without parole is “the second most severe penalty permitted by law.” Id. at 2027 (internal quotation marks

omitted). 

3182 UNITED STATES v. WILLIAMS
[7] When considering categorical challenges to classes of

sentences, courts look to “objective indicia of society’s standards . . . to determine whether there is a national consensus

against the sentencing practice at issue,” and to the court’s

“own independent judgment.” Id. at 2022 (internal quotation

marks omitted). 

[8] Here, “objective indicia” suggest that society is comfortable with lifetime sentences of supervised release for sex

offenders, as such sentences are common. According to the

United States Sentencing Commission, in the last five years,

federal courts have sentenced 1875 defendants convicted of

child pornography and child prostitution crimes to lifetime

supervised release. See U.S. Sentencing Comm’n, Federal

Offenders Sentenced to Supervised Release 58-59 (July 2010),

www.ussc.gov/general/20100722_Supervised_Release.pdf.

By way of comparison, in banning the sentence of life without

parole for juvenile nonhomicide offenders, the Supreme Court

noted that there were then just 123 people in the county serving such sentences. See Graham, 130 S. Ct. at 2024. Further,

the percentage of federal sex offenders receiving life terms of

supervised release is increasing, climbing from 9.3 percent in

2005, to 20.5 percent in 2009. See U.S. Sentencing Comm’n,

supra, at 59. 

[9] In exercising “independent judgment,” the Supreme

Court has instructed lower courts to “consider[ ] whether the

challenged sentencing practice serves legitimate penological

goals.” Graham, 130 S. Ct. at 2026. Rehabilitation and incapacitation are central purposes of the criminal justice system,

and they are particularly critical here given the propensity of

sex offenders to strike again. Supervised release can further

the end of rehabilitating sex offenders. For instance, in this

case, the express conditions of supervised release will require

Williams to receive sex offender treatment and to avoid situations where he may be tempted to offend again. Relatedly,

supervised release helps incapacitate sex offenders by keeping

them under the watchful eye of probation officers who may

UNITED STATES v. WILLIAMS 3183
be able to detect problems before they result in irreparable

harm to innocent children. 

[10] Accordingly, we conclude that life terms of supervised release are not categorically disproportionate for sex

offenders.

III

Williams also asserts that a life term of supervised release

is substantively unreasonable. 

Appellate courts review the substantive reasonableness of

sentences for abuse of discretion, and “must give due deference to the district court’s decision.” Gall v. United States,

552 U.S. 38, 51 (2007). This standard is particularly deferential where, as here, the court is reviewing a within-Guidelines

sentence. See Rita v. United States, 551 U.S. 338, 347-48

(2007). This special deference reflects the fact that when a

district court imposes a within-Guidelines sentence, “both the

sentencing judge and the Sentencing Commission will have

reached the same conclusion as to the proper sentence in the

particular case.” Id. at 347. Indeed, “[t]hat double determination significantly increases the likelihood that the sentence is

a reasonable one.” Id.; see also United States v. Carty, 520

F.3d 984, 994 (9th Cir. 2008) (en banc) (“We recognize that

a Guidelines sentence will usually be reasonable . . . .” (internal quotation marks omitted)).

[11] Here, lifetime supervised release is reasonable given

the seriousness of Williams’ offenses and the likelihood that

he will offend again. The sexual exploitation and abuse of

children are unspeakably horrendous crimes. Moreover, those

who commit such crimes once are likely to commit them

again. See H.R. Conf. Rep. No. 108-66, at 49-50 (noting that

“the perpetrators of child sexual abuse crimes” often have

“deep-seated aberrant sexual disorders that are not likely to

disappear within a few years of release from prison”).

3184 UNITED STATES v. WILLIAMS
Accordingly, the United States Sentencing Commission recommends the maximum term of supervised release for sex

offenses such as receipt of child pornography, see U.S.S.G.

§ 5D1.2(b)(2) (Policy Statement), and several courts of

appeals, including our own, have held that life terms of supervised release are reasonable where the defendant was convicted of receipt or possession of child pornography, see, e.g.,

United States v. Cope, 527 F.3d 944, 952 (9th Cir. 2008);

United States v. Gonzalez, 445 F.3d 815, 820 (5th Cir. 2006).

We conclude that a life term of supervised release is reasonable in this case.

IV

For the foregoing reasons, the district court did not err in

sentencing Williams to a fifteen-year sentence, followed by a

life term of supervised release.

AFFIRMED.

UNITED STATES v. WILLIAMS 3185