Unrequested Upward Variance in CP Case Procedurally Reasonable

US v. Williams: Williams sexually exploited a friend’s minor daughter, after “practicing” by “using his pinhole cameras by covertly photographing children on the school bus he drove.” In total, investigators seized over 100,000 images of child pornography. After pleading guilty to one count of production of child pornography, Williams faced an advisory Guideline range of 210 to 262 months in prison. At sentencing, Williams argued for a variance down to the mandatory minimum of 180 months in prison, while the Government sought a sentence at the top of the range. The district court rejected both arguments and imposed a sentence of 327 months in prison, followed by a life-time term of supervised release.

On appeal, the court affirmed Williams’ sentence. It rejected Williams’ argument that the district court did not provide proper notice before departing from the Guideline range, as the sentence imposed was not a departure at all, but a variance based on applying the 3553(a) sentencing factors, for which such notice is not required. The court also held that the district court did not err by basing its sentence on the fact that the victim had developed emotional problems without providing Williams access to her medical records, noting that he did not request it. Finally, the court held that the sentence was sufficiently explained.

Facts of Case Supported Social Media Limitations Guided by Probation Officer

US v. Comer: Comer was convicted of conspiracy to engage in sex trafficking after being part of an operation that recruited unwitting young women (including, initially, Comer herself) into prostitution. The recruitment occurred using social media tools, including a dating website. After serving her term of incarceration, Comer began a term of supervised during which she was “communicating with felons by using an encrypted app on her phone” to meet someone she met on Facebook and “maintaining a hidden, unmonitored phone.” In addition to revoking Comer’s term of supervised release, the district court imposed a new condition that she “not have any social networking accounts without the approval of the U.S. Probation Officer.”

On appeal, the Fourth Circuit affirmed Comer’s sentence, including the new condition. It concluded that the condition was not unconstitutionally vague, holding that while there was some “gray space on the margins” of the condition, there was a “commonsense understanding” of what activity was off limits, which could be supplemented by discussing particular issues with her probation officer. It also rejected an argument that the condition infringed on Comer’s due process right to find and associate with a romantic partner, concluding that even if such a right existed the condition was no greater deprivation on liberty than needed to achieve the goals of supervision. In particular, the court noted that “Comer indisputably weaponized social networks . . . to commit her underlying offense.” Finally, the court found no improper delegation of authority from the district court to the probation officer. As to the probation officer, the court found no error in them sitting at counsel table with the AUSA during the revocation hearing, but suggested it was not a good practice going forward.

Failure to Address Objections to SR Conditions – Even “Standard” Ones – Unreasonable

US v. Boyd: Boyd pleaded guilty to being a felon in possession of a firearm. In the Presentence Investigation Report, the probation officer referred to a list of “standard” conditions that applied in the district “unless affirmatively omitted by the presiding judge.” Boyd objected to several of them, including those covering a work requirement, associating with felons, and sharing financial information with probation. At sentencing, the court imposed all of the challenged conditions, because they were “standard” in the district. Boyd also objected to another condition, involving warrantless searches, which the district court overruled, again by referencing the “standard” conditions.

On appeal, the Fourth Circuit vacated Boyd’s sentence as being procedurally unreasonable. After disposing with the Government’s argument that Boyd had not sufficiently preserved the issue of the challenged conditions (by not renewing an objection at sentencing, having objected to the PSR), the court applied the now familiar law that a district court must sufficiently explain its sentencing decisions, including the imposition of conditions of supervised release. That requirement cannot be satisfied merely by citing to a list of “standard” conditions adopted in the district. Regardless of how routine the case may be, where the defendant makes non-frivolous objections to the proposed conditions, the district court must address them.

Congrats to the Defender office in Western NC on the win!