Panel of Judges Kennedy, Gibbons, and Kethledge.
CP case. D appealed the special conditions of his supervised release. Also appealed denial of suppression motion, and claimed ineffective assistance of counsel (counsel's failure to preserve suppression issue for appeal).
D had been residing in a residence that was in disrepair (he did not have a property interest in it and only stayed there part-time). Police told of possible CP (contacted by another police department). Police went to the residence and arrested the D for trespassing. Searched home (to ensure no other trespassers present). Seized D's property; said home scheduled for demolition and evidence could be destroyed. Detective got a warrant and examined the electronic media. Found CP.
The district court denied D's motion to suppress: D did not own the home, had no lawful possession of it, had been convicted of failing to keep it sanitary, and had been ordered to stay away from it. Home was scheduled for demolition.
D pleaded guilty. Appellate waiver in plea agreement. Agreement detailed several conditions the government would seek for supervised release.
District court imposed a sentence of 30 months and 10 years of supervised release. Among the conditions of supervised release were: 1) ban on contact with minors; 2) ban on contact with people with sexual interests in minors; 3) no jobs/residence/recreation and such involving minors; 4) ban on loitering within 100' of a school/playground frequented by minors; and 5) no on-line access w/o probation's approval.
Ineffective-assistance-of-counsel claim, based on failing to preserve right to appeal suppression issue, should wait for a 2255. Record not developed on direct appeal. Unconditional plea means no review of the denial of the motion to suppress here. As to the conditions of supervised release, the D waived his right to appeal them. Even a lack of notice of one of the conditions did not jump the waiver hurdle. A general reservation of the right to appeal a punishment in excess of the statutory max does not preserve the right to challenge SR conditions.
*****
Next there is United States v. Robinson, No. 09-1959 (6th Cir. Feb. 27, 2012) (published).
Panel of Judges Cole, Rogers, and Sargus (S.D. Ohio).
CP case. GLs of 78 to 97 months. District court gave the D one day in custody and 5 years of SR. Sentence vacated as substantively unreasonable.
Psych report indicated that the D was a low risk for recidivism (and other positive factors). D was cooperative, lacked criminal history, went to counseling, and had a painful back condition.
The government appealed the one-day sentence. The court of appeals looked at Gall and cited a portion about ensuring that justifications for a variance are sufficient to support the degree of the variance. The appellate court found that courts struggle with CP cases and cited a Sentencing Commission statistic that variances occur in 60% of the cases.
The sentence was procedurally reasonable, but failed substantively. Sentence based excessively on the issue of recidivism (low risk for hands-on offenses); this case was about CP---not child molestation. D's employment history, age, and debilitating back condition were "discouraged" factors under the GLs. Even post-Booker, a sentencing court "should take into account 'the 'discouraged' status of these factors.'" The other 3553(a) factors received too little attention from the district court.
The court of appeals cited Bistline, that CP case we included in a post on January 14, 2012. The COA recognized that the CP GLs are controversial "and are currently under review by the Sentencing Commission." Court acknowledged that "In the computer age, we have some doubt that the number of pictures alone captures the gravity of the crime of possession of child pornography." But this D collected his images over an extended period of time and paid to do so.
The court of appeals distinguished United States v. Stall, 581 F.3d 276 (6th Cir. 2009), and United States v. Prisel, 316 F. App`x 377 (6th Cir. 2008), both of which involved one-day sentences and involved plain-error review.
"[E]xtraordinary circumstances may justify extraordinary variances or departures." This finding seems to follow up on some of the problematic issues in Bistline.
