United States v. Kevin Carson
Opinion of the Court
Kevin Carson pled guilty to the receipt, possession, and attempted distribution of child pornography. The district court
I.
In 2013, an FBI officer downloaded child pornography from two IP addresses assigned to a residence associated with Carson. FBI officers executed a search warrant at the residence, where Carson admitted to using a file sharing program to download and share child pornography. He also admitted to using his cellphone to take pictures of himself and a sixteen-year-old girl having sex. The officers seized Carson's electronics (a laptop, cell phone, and hard drive), on which they discovered 593 still images and 99 videos mostly depicting child bondage and bestiality, including a horrifying image of a female infant being raped by an adult male. Carson also later admitted to exchanging sexually-explicit photos with five girls between the ages of fourteen and seventeen and emailing child pornography to a sixth girl.
Carson pled guilty to one count of receiving child pornography and two counts of attempting to distribute child pornography in violation of
II.
A.
Carson argues the district court committed procedural error by imposing a life term of supervised release without considering the relevant sentencing factors under
Carson did not raise this objection before the district court, so our review on appeal is for plain error.
United States v. Moore
,
Carson's argument overlooks the fact "[t]he term of supervised release is part of a defendant's sentence."
United States v. James
,
Here, the district court's consideration of the § 3553(a) factors "applie[d] equally well" to both Carson's terms of imprisonment and supervised release.
Id
. The district court referenced the nature and circumstances of Carson's offense, noting his offense conduct included the "somewhat unique" aggravating factors of distributing child pornography to a minor and engaging in a pattern of activity involving the sexual exploitation of minors. The district court discussed Carson's history and characteristics, granting a downward variance on the prison term because of Carson's lack of criminal history, the fact he pled guilty, and the fact he received a three-level reduction for acceptance of responsibility. The district court's sentence mirrored the recommendations it reviewed in the government's sentencing memorandum,
We conclude any error in this explanation was not plain - that is, "clear or obvious under current law."
United States v. Poitra
,
In addition, it is not clear or obvious the district court failed to "set forth enough to satisfy [this] court that [it] ... considered the parties' arguments and ha[d] a reasoned basis for exercising [its] own legal decisionmaking authority."
Rita
,
B.
Carson also challenges three special conditions of his supervised release: Special Condition 6, to the extent it prohibits "possess[ing]" or "hav[ing] under his control any matter that is pornographic/erotic"; Special Condition 14, which prohibits "possess[ing] or us[ing] any computer or electronic device with access to any 'on-line computer service' without the prior approval of the Probation Office"; and Special Condition 16, which prohibits "maintain[ing] or creat[ing] a user account on any social networking site ... that allows access to persons under the age of 18, or allows for the exchange of sexually-explicit material, chat conversations, or instant messaging." Special Condition 16 also prohibits "view[ing] and/or access[ing] any web profile users under the age of 18."
"Ordinarily, '[t]erms and conditions of supervised release are reviewed for abuse of discretion.' "
United States v. Demers
,
1.
Carson first argues that all three challenged conditions involve a greater deprivation of liberty than reasonably necessary and that Special Condition 6 is also unconstitutionally overbroad and vague. For example, he argues Special Condition 6 (banning possession of "any matter that is pornographic/erotic") reaches depictions of non-obscene nudity and material that merely alludes to sexual activity, in conflict with previous decisions of this court.
See, e.g.
,
United States v. Kelly
,
Our precedent forecloses Carson's challenge to Special Condition 6. We recently rejected the same overbreadth and vagueness challenges to a condition prohibiting a defendant from, among other things, "possess[ing]" or "us[ing]" "any form of erotica or pornographic materials."
See
United States v. Sebert
,
Our precedent also forecloses Carson's challenge to Special Condition 14. We
have "identified two relevant factors for determining the propriety of a restriction on computer and internet use": (1) "whether there was evidence demonstrating 'that the defendant did more than merely possess child pornography,' " and (2) "whether the restriction amounts to a total ban on internet and computer use."
United States v. Goettsch
,
We next turn to Carson's argument that Special Condition 16 (the social media restriction) "suffers the same flaws as the North Carolina statute held to be unconstitutional in
Packingham
." The Supreme Court in
Packingham
considered the constitutionality of a statute prohibiting registered sex offenders from "access[ing] a commercial social networking Web site where the sex offender knows that the site permits minor children to become members" or from "creat[ing] or maintain[ing] personal Web pages" on such sites.
Packingham
,
We disagree. Several of our sister circuits have rejected a similar argument in challenges to supervised release conditions forbidding access to the internet - and effectively to social media sites - without prior approval or monitoring by a court or probation officer.
See
United States v. Antczak
,
2.
Carson next argues the district court failed to support any of the challenged
conditions with individualized findings. We have recognized that a "district court must make an individualized inquiry into the facts and circumstances underlying a case and make sufficient findings on the record so as to ensure that the special condition satisfies the statutory requirements."
Poitra
,
We agree with Carson that the district court plainly erred by failing to make any effort to support the challenged conditions (or any other special condition) with individualized findings.
See
Poitra
,
We find the reasons for the challenged conditions sufficiently evident from this record. Carson's seized electronics contained hundreds of downloaded images and videos mostly depicting child bondage and bestiality. These included depictions of an infant girl being raped by an adult male as well as prepubescent girls engaging in sex acts with adult males. Carson admitted to downloading and sharing child pornography over the internet. We have previously found similar facts rendered the basis for similar special conditions sufficiently evident.
See, e.g.
,
Thompson
,
III.
For the foregoing reasons, we affirm Carson's sentence.
The Honorable Roseann A. Ketchmark, United States District Judge for the Western District of Missouri.
Carson did not submit his own sentencing memorandum.
We disagree with Carson that his case is similar to the Sixth Circuit's decision in
United States v. Inman
because that court found plain error where the district court failed to explain why it imposed a life term of supervised release rather than the 10-year term
recommended by the parties
.
Dissenting Opinion
One of our primary roles in sentencing appeals is to correct procedural errors. And "meaningful appellate review" is possible only if the district court "adequately explain[s] the chosen sentence."
Gall v. United States
,
A few particular aspects of the court's opinion give me pause. The first is its conclusion that the district court's evaluation of the § 3553(a) factors in determining the length of Carson's imprisonment also satisfied its obligations under § 3583(c). Section 3583(c) directs district courts to consider some, but not all, of the § 3553(a) factors when "determining the length of the term and the conditions of supervised release." Under certain circumstances, it may be appropriate for a district court to simply refer back to its previous analysis when explaining its decision to impose a particular supervised release term. But here, the district court's explanation for the incarceration portion of its sentence does not explain its chosen term of supervised release. For the prison term, the court varied downward from the bottom of the Guidelines range by ten years, largely based on Carson's mitigating factors, including that he was a first-time offender and had accepted responsibility for his offenses. The court's explanation for its substantial downward variance does not readily explain its decision to impose the maximum possible term of supervised release. This is simply not a case where "[o]ne overarching explanation" adequately explains both aspects of the sentence.
Moose
,
The court also excuses the district court's plain error in failing to make any of the individualized findings necessary to justify its special conditions of supervised release. "When crafting a special condition of supervised release, the district court must make an individualized inquiry into the facts and circumstances underlying a case and make sufficient findings on the record so as to ensure that the special condition satisfies the statutory requirements."
Wiedower
,
Special Condition 14, for example, broadly prohibits Carson from possessing or using "any computer or electronic device with access to any 'on-line computer service' without the prior approval of the Probation Office."
Without any analysis by the district court, it is also hard to conclude that Special Condition 16 is justified. The court distinguishes Packingham, which invalidated a similar restriction on access to social media on First Amendment grounds, by limiting that case to post-custodial restrictions. But even if Special Condition 16 is not unconstitutional, it does not necessarily follow that the condition is justified in Carson's case. The condition specifically prohibits Carson from creating a user account on any "social networking site" that minors may access. The term "social networking site" is not defined, and in
Packingham
the Court acknowledged that the term "commercial social networking site" could potentially apply "not only to commonplace social media websites but also to websites as varied as Amazon.com, Washingtonpost.com, and Webmd.com."
I do not minimize the seriousness of Carson's crimes. For those he will serve a twenty-year prison term followed by a lengthy term of supervised release. I also recognize the need to monitor Carson's conduct upon release. But Carson was thirty-three at the time of his arrest, and his lifetime term of supervised release could very well last decades. We can only imagine the universe of internet-reliant electronic devices that will pervade everyday life by then. The length and conditions of Carson's supervised release may well be justified, but such punishment deserves, at minimum, some reasoned explanation from the sentencing court. Accordingly, I respectfully dissent.
This is also not a case where the district court merely provided a "relatively brief" explanation for its decision and "decide[d] simply to apply the Guidelines."
Roberson
,
Special Condition 15, which Carson does not challenge, separately requires that Carson consent to having hardware or software installed on his computer to permit monitoring by the Probation Office.
Concurring Opinion
I concur in the court's judgment and join its opinion in full. As to Special Condition 6 (prohibiting Carson from possessing or controlling erotica), I concur only because I conclude it is required by precedent. I continue to disagree with that precedent for the reasons discussed in my concurring opinion in
Sebert
,
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff - Appellee v. Kevin P. CARSON, Defendant - Appellant
- Cited By
- 25 cases
- Status
- Published