United States v. Justin Thompson

Filing

OPINION FILED - THE COURT: JAMES B. LOKEN, C. ARLEN BEAM and BOBBY E. SHEPHERD. Bobby E. Shepherd, Authoring Judge (PUBLISHED) [3825200] [10-3840]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________
No. 10-3840
___________
United States of America,
Appellee,
v.
Justin Thompson,
Appellant.

*
*
*
* Appeal from the United States
* District Court for the
* District of Nebraska.
*
*
*
___________
Submitted: June 17, 2011
Filed: September 2, 2011
___________

Before LOKEN, BEAM, and SHEPHERD, Circuit Judges.
___________
SHEPHERD, Circuit Judge.
Justin Thompson pled guilty to receipt and distribution of child pornography
in violation of 18 U.S.C. § 2252A(a)(2). The district court1 sentenced Thompson to
60 months imprisonment followed by 5 years of supervised release. On appeal,
Thompson claims the district court erred in imposing certain special conditions of
supervised release. We affirm.

1

The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.

Appellate Case: 10-3840

Page: 1

Date Filed: 09/02/2011 Entry ID: 3825200

I.
On January 27, 2010, Investigator Darin Morrissey of the Sarpy County
Sheriff’s Office identified Thompson’s Internet Protocol (IP) address as one
participating in the distribution of child pornography. Investigator Morrissey
connected with Thompson’s computer through the use of a file-sharing program and
was able to browse a list of files that Thompson was offering to share with others.
After determining that this list included images and videos of child pornography,
Investigator Morrissey downloaded two videos from Thompson’s computer that both
contained sexually explicit images involving prepubescent females.
On March 16, 2010, police searched Thompson’s apartment pursuant to a
search warrant and discovered child pornography on a computer, two CDs, and a
thumb drive, all of which belonged to Thompson. Multiple images recovered from
the apartment involved prepubescent minors being sexually abused by adults. In
addition, several images and one video recovered from Thompson’s equipment
“depicted bondage, torture, and pain.” Thompson was subsequently indicted by a
grand jury and charged with the receipt and distribution of child pornography (Count
I), in violation of 18 U.S.C. § 2252A(a)(2), as well as possession of child pornography
(Count II), in violation of 18 U.S.C. § 2252(a)(4)(B). As part of a plea agreement,
Thompson pled guilty to Count I in return for the Government’s agreement to dismiss
Count II.
Prior to sentencing, Thompson objected to numerous special conditions
recommended by the probation office in its sentencing recommendation. Thompson
objected to Special Conditions 8, 9, and 10—which restricted Thompson’s interaction
with minors—as unnecessary because there was no evidence before the court that
Thompson had ever actually sexually abused a child. Thompson also argued that
Special Conditions 13 and 15—which dealt with potential sex-offender treatment and
polygraph testing—were an impermissible delegation of judicial authority to the
-2-

Appellate Case: 10-3840

Page: 2

Date Filed: 09/02/2011 Entry ID: 3825200

probation officer. Special Condition 16 prohibited Thompson’s possession of
“pornography which includes any sexually explicit material,” and Thompson argued
this condition was vague and overbroad. Finally, Thompson contended that Special
Conditions 17 and 18—which dealt with approval for employment and residence
changes as well as disclosure of computer restrictions for potential employers—were
unnecessary.
At sentencing, the district court calculated a total offense level of 32 with a
criminal history category of I, resulting in a Sentencing Guidelines range of 121 to
151 months imprisonment. However, the district court sentenced Thompson to 60
months imprisonment and 5 years of supervised release in light of an agreement
between the parties pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal
Procedure. The court then imposed many of the special conditions recommended by
the Probation Office without change, but it altered the wording of some special
conditions in response to Thompson’s objections. Thompson appeals the imposition
of nine special conditions of supervised release.
II.
We review for abuse of discretion the imposition of those special conditions to
which Thompson objected at sentencing.2 United States v. Boston, 494 F.3d 660, 667
2

We note that at sentencing Thompson objected to all of the special conditions
at issue in this appeal except Special Condition 14. Thus we would normally review
Special Condition 14 for plain error. See United States v. Fenner, 600 F.3d 1014,
1026 (8th Cir. 2010). Thompson argues that the imposition of Special Condition 14
was improper for the same reason as Special Conditions 13 and 15—that it constituted
an impermissible delegation of judicial authority to the probation officer. Because we
conclude below that the district court did not impermissibly delegate its judicial
authority in imposing Special Conditions 13 through 15, it is unnecessary for us to
consider separately Special Condition 14 under the more stringent plain error
standard.
-3-

Appellate Case: 10-3840

Page: 3

Date Filed: 09/02/2011 Entry ID: 3825200

(8th Cir. 2007). A district court “is afforded wide discretion when imposing terms of
supervised release.” United States v. Simons, 614 F.3d 475, 479 (8th Cir. 2010)
(quoting United States v. Crume, 422 F.3d 728, 732 (8th Cir. 2005)). But this
discretion is not absolute as 18 U.S.C. § 3583(d) requires that each special condition
be “reasonably related to the nature and circumstances of the offense and the history
and characteristics of the defendant, deterrence of criminal conduct, protection of the
public, and treatment of the defendant’s correctional needs.” United States v. Mayo,
642 F.3d 628, 631 (8th Cir. 2011) (per curiam). Moreover, conditions imposed on a
defendant’s supervised release must involve “no greater deprivation of liberty than is
reasonably necessary” and “must be consistent with any pertinent policy statements
issued by the sentencing commission.” Simons, 614 F.3d at 479 (quoting Crume, 422
F.3d at 733). To ensure that each special condition imposed satisfies these
requirements, we also require the district court to “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.”
United States v. Wiedower, 634 F.3d 490, 493 (8th Cir. 2011) (internal quotation
omitted). With these requirements in mind, we consider each of Thompson’s
objections in turn.
A.
Thompson first argues that the district court abused its discretion in imposing
Special Conditions 8, 9, and 10. Special Condition 8 requires Thompson to “report
all incidental contact with children to the U.S. Probation Officer” and to “seek and
receive approval from the Probation Officer before residing with any person under the
age of 18.” Special Condition 9 prohibits Thompson from “access[ing] or com[ing]
within 500 feet of schools, school yards, parks, arcades, playgrounds, amusement
parks, or other places used primarily by children under the age of 18 unless approved
in advance by the U.S. Probation Officer.” Finally, Special Condition 10 states that
Thompson “shall not be employed in, or participate in, any volunteer activity that
-4-

Appellate Case: 10-3840

Page: 4

Date Filed: 09/02/2011 Entry ID: 3825200

involves contact with children under the age of 18, except under circumstances
approved in advance by the U.S. Probation Officer.” Thompson claims that the
imposition of each of these conditions was an abuse of discretion because there were
no facts before the district court that Thompson had abused children in the past and
the conditions exact a greater deprivation of liberty than is reasonably necessary.
In United States v. Mickelson, we faced a similar challenge where the defendant
was convicted of receiving child pornography and had no prior history of sexually
abusing minors. 433 F.3d 1050, 1051 (8th Cir. 2006). As a special condition of his
supervised release, the defendant was prohibited from having “contact with children
under the age of 18 without the prior written consent of the probation office.” Id. at
1051. On appeal, we denied the contention that the special condition was
“unnecessary and unreasonable,” and held that “requiring prior approval before a
convicted sex offender has contact with minors is a reasonable means of ensuring that
such contact remains appropriate.” Id. at 1056-57; see also United States v. Kerr, 472
F.3d 517, 522-23 (8th Cir. 2006).
We reach a similar conclusion, holding that the district court did not abuse its
discretion in imposing Special Conditions 8, 9, and 10. The record supports the
district court’s finding that restricting Thompson’s interaction with minors “is
reasonably necessary for the purposes set forth in section 3553(a)[.]” 18 U.S.C. §
3583(d)(1). As the Government noted at sentencing, many of the images found on
Thompson’s computer involved the molestation of prepubescent minors by adults
through anal, oral, and vaginal penetration. Moreover, unlike the defendant in
Mickelson, Thompson pled guilty to not only receiving child pornography, but to
distributing it as well. This is a more serious offense than mere possession. See Kerr,
472 F.3d at 523. In light of these facts, the district court did not abuse its discretion
in concluding that Special Conditions 8, 9, and 10 were reasonably necessary.

-5-

Appellate Case: 10-3840

Page: 5

Date Filed: 09/02/2011 Entry ID: 3825200

Furthermore, Special Conditions 8, 9, and 10 do not impose a greater
deprivation of liberty than is reasonably necessary because they are not complete
prohibitions on Thompson’s interaction with minors. Each condition allows for
Thompson to seek an exception to the condition through approval of his probation
officer. Cf. United States v. Stults, 575 F.3d 834, 853 (8th Cir. 2009); Mickelson, 433
F.3d at 1057. Thus, we conclude the district court did not abuse its discretion.
B.
Thompson next challenges Special Conditions 13, 14, and 15, claiming these
conditions constitute an impermissible delegation of judicial authority to the probation
officer.3 Special Condition 13 requires, among other things, that Thompson “may be
required to undergo a sex offense-specific evaluation and participate in a sex offender
treatment and/or mental health treatment program approved by the U.S. Probation
Officer.” Special Condition 14 states that Thompson “may be required to submit to
an initial polygraph examination and subsequent maintenance testing, at intervals to
be determined by the U.S. Probation Officer.” Special Condition 15 provides that
Thompson “may be required to sign releases of information to allow all professionals
involved . . . to communicate and share documentation with each other.”
Thompson’s argument as to these conditions fails. Although we have
recognized that a special condition of supervised release can potentially constitute an
impermissible delegation of judicial authority, see United States v. Kent, 209 F.3d
1073, 1078-79 (8th Cir. 2000), such an impermissible delegation occurs only where
the district court gives an “affirmative indication” that it will not retain “ultimate
3

Thompson’s brief also contains a cursory argument that Special Conditions 13,
14, and 15 are unnecessary because he will likely “receive treatment during the five
years that he is incarcerated.” We have previously upheld conditions that provided
for sex-offender treatment and polygraph testing during supervised release. See, e.g.,
United States v. Wiedower, 634 F.3d 490, 493-94 (8th Cir. 2011).
-6-

Appellate Case: 10-3840

Page: 6

Date Filed: 09/02/2011 Entry ID: 3825200

authority over all of the conditions of supervised release,” United States v. Wynn, 553
F.3d 1114, 1120 (8th Cir. 2009). Because no such affirmative indication occurred in
this case, Special Conditions 13, 14, and 15 do not constitute an impermissible
delegation of judicial authority.
C.
Thompson argues that the district court abused its discretion by imposing
Special Condition 16, which prohibits Thompson from possessing or having under his
control “any child or adult pornography which includes any sexually explicit
materials.” Thompson claims the imposition of this condition was error because the
district court failed to make individualized findings to support the condition, the
condition is unconstitutionally overbroad, and the condition is unconstitutionally
vague.
1.
Thompson correctly asserts that the district court erred when it failed to make
individualized findings on the record to support the imposition of Special Condition
16. Although the district court went through each contested special condition at
sentencing, it failed to expressly state its reasons for imposing Special Condition 16.
Nevertheless, the Government argues that the district court’s failure to make
individualized findings on the record was harmless error. Thompson responds that a
lack of individualized findings to support a special condition of supervised release
requires automatic remand, citing our decisions in United States v. Kelly, 625 F.3d
516 (8th Cir. 2010), and United States v. Bender, 566 F.3d 748 (8th Cir. 2009). We
find Thompson’s reliance on Kelly and Bender unpersuasive.
In both Kelly and Bender, we vacated special conditions similar to Special
Condition 16 because they were not supported by individualized findings on the
-7-

Appellate Case: 10-3840

Page: 7

Date Filed: 09/02/2011 Entry ID: 3825200

record. See Kelly, 625 F.3d at 520, 522; Bender, 566 F.3d at 752. However, because
neither Kelly nor Bender expressly discussed the issue of whether a lack of
individualized findings could be subject to harmless-error analysis, those decisions are
not binding here. See United States v. Lovelace, 565 F.3d 1080, 1085 (8th Cir. 2009)
(“[W]hen an issue is not squarely addressed in prior case law, we are not bound by
precedent through stare decisis.” (quoting Passmore v. Astrue, 533 F.3d 658, 660-61
(8th Cir. 2008))). Moreover, the absence of harmless-error review in Kelly and
Bender is not surprising. First, harmless error was not argued by the Government in
either Kelly or Bender, and “its failure to argue harmless error waive[d] any right to
such review,” see United States v. Williams, 627 F.3d 324, 329 (8th Cir. 2010)
(quotation omitted). Second, in both Kelly and Bender, the district court not only
failed to make individualized findings, but actually affirmatively indicated that it was
considering the defendant as part of a class of defendants rather than individually. See
Kelly, 625 F.3d at 520; Bender, 566 F.3d at 752.
In contrast, in this case we are squarely faced with the question of whether
harmless-error analysis applies here. The Federal Rules of Criminal Procedure require
that we disregard “[a]ny error, defect, irregularity, or variance that does not affect
substantial rights.” Fed. R. Crim. P. 52(a). Following this instruction, we have
previously reviewed other procedural errors at sentencing for harmlessness. See, e.g.,
United States v. Ortiz, 636 F.3d 389, 394-95 (8th Cir. 2011); United States v. Henson,
550 F.3d 739, 740-41 (8th Cir. 2008). Similarly, we hold that reversal is not required
by a lack of individualized findings if the basis for the imposed condition can be
discerned from the record. See United States v. Carlson, 406 F.3d 529, 532 (8th Cir.
2005) (holding that a failure to make specific findings to support a special condition
imposed under U.S.S.G. §5F1.5 did not require invalidation of the restriction where
the justification was clear from the record); accord United States v. Albertson, No. 091049, 2011 WL 1662786, at *7 (3d Cir.) (holding that an imposed condition will be
upheld if the record “reveals any viable basis for the restriction” (quotation omitted)),
cert. denied, — S. Ct. —, 2011 WL 1984461 (2011); United States v. Brogdon, 503
-8-

Appellate Case: 10-3840

Page: 8

Date Filed: 09/02/2011 Entry ID: 3825200

F.3d 555, 564 (6th Cir. 2007) (finding a lack of individualized findings to be harmless
error where the reasons for the condition were “evident on the overall record,” and the
condition was related to purposes of supervised release); United States v. Balon, 384
F.3d 38, 42 n.1 (2d Cir. 2004) (holding that a failure to expressly articulate reasons
for a special condition on the record was harmless because the reasons were “selfevident on the record”); United States v. Nonahal, 338 F.3d 668, 671 (7th Cir. 2003)
(holding that a district court’s failure to explain why it refused a request for a
modification of conditions of supervised release did not warrant remand because the
“reasons for denying the modification [were] apparent”).
Here, the reasons for the imposition of Special Condition 16 are sufficiently
evident from the record. Thompson downloaded and viewed child pornography for
years before his conviction in this case. The images and videos recovered from
Thompson’s apartment not only depicted prepubescent children being sexually
molested, some depicted the bondage and torture of young children. Thompson also
admitted that he felt sexually aroused by these materials. When a defendant has
demonstrated a sexual interest in children, a ban on the possession of child
pornography often serves to rehabilitate the defendant, to protect children, and to deter
future activity. See United States v. Ristine, 335 F.3d 692, 694-95 (8th Cir. 2003).
Moreover, we have repeatedly upheld similar bans on the possession of both adult and
child pornography when a defendant has been convicted of possessing, receiving, or
distributing child pornography. See, e.g., Wiedower, 634 F.3d at 496-97; Stults, 575
F.3d at 854-55; Ristine, 335 F.3d at 694-95. Accordingly, the district court’s failure
to make individualized findings on the record was harmless error where other
evidence on the record, which demonstrates Thompson’s sexual interest in the
physical abuse and molestation of children, provides ample support for the imposition
of Special Condition 16.

-9-

Appellate Case: 10-3840

Page: 9

Date Filed: 09/02/2011 Entry ID: 3825200

2.
Thompson’s contention that Special Condition 16 is unconstitutionally
overbroad is also without merit. A special condition of supervised release is only
unconstitutionally overbroad if its overbreadth is real and substantial in relation to its
plainly legitimate sweep. See Osborne v. Ohio, 495 U.S. 103, 112 (1990); Farrell v.
Burke, 449 F.3d 470, 498-99 (2d Cir. 2006). In light of Thompson’s history with
child pornography, Special Condition 16 has a plainly legitimate sweep. See
Wiedower, 634 F.3d at 497 (affirming a ban on the possession of pornography or
sexually explicit material because of the defendant’s “deeply rooted affinity for child
pornography”); Ristine, 335 F.3d at 694-95 (upholding a ban on the possession of
“any pornographic materials” as well as “any form of pornography or erotica” because
of the defendant’s “obsession with or addiction to child pornography”). And Special
Condition 16 is not overbroad in relation to its plainly legitimate sweep. Thompson
is correct that we have invalidated special conditions precluding the defendant from
possessing any material containing nudity, alluding to sexual activity, or depicting
sexually arousing material as overly broad. Kelly, 625 F.3d at 519; Simons, 614 F.3d
at 483-85. In contrast, however, we have consistently rejected overbreadth arguments
where the special condition at issue precluded the defendant from possessing
pornography or sexually explicit material. See, e.g., Wiedower, 634 F.3d at 497;
Ristine, 335 F.3d at 694-95.
Here, the special condition imposed by the district court is even more narrow
than the conditions we upheld in Wiedower and Ristine because it precludes
Thompson from possessing sexually explicit pornographic materials. This is a
relevant distinction because “sexually explicit material” is a more narrow category of
material than “pornography.” Compare United States v. Loy, 237 F.3d 251, 266-67
(3d Cir. 2001) (holding that a ban on the possession of pornography could apply to
“any art form that employs nudity,” including medical textbooks), with United States
v. Wallenfang, 568 F.3d 649, 656-58 (8th Cir. 2009) (clarifying that material
-10-

Appellate Case: 10-3840

Page: 10

Date Filed: 09/02/2011 Entry ID: 3825200

depicting “sexually explicit conduct,” as defined by 18 U.S.C. § 2256, does not
include material containing mere nudity alone, but only material that is “sexual in
nature” (quotation omitted)).
Accordingly, Special Condition 16 is not
unconstitutionally overbroad.
3.
We also reject Thompson’s contention that Special Condition 16 is
unconstitutionally vague. Thompson argues that because the term “‘pornography’
lacks a broadly-accepted definition,” it is unclear exactly what material is and is not
prohibited by the condition. Thompson is correct that we have previously noted
concerns with the uncertainty of what constitutes “pornography” because the term
lacks a precise legal definition. See Simons, 614 F.3d at 484 n.4; Ristine, 335 F.3d
at 695. Other courts have expressed similar concerns. See, e.g., Farrell, 449 F.3d at
484-91; United States v. Guagliardo, 278 F.3d 868, 872 (9th Cir. 2002); United States
v. Loy, 237 F.3d 251, 263-65 (3d Cir. 2001). But see United States v. Phipps, 319
F.3d 177, 192-93 (5th Cir. 2003) (upholding a condition against a vagueness challenge
that prohibited the defendants from possessing “sexually oriented or sexually
stimulating materials”). The problem with Thompson’s argument, however, is that,
as mentioned earlier, Special Condition 16 does not prohibit his possession of mere
“pornography.” Rather, it prohibits his possession only of “pornography which
includes any sexually explicit materials.” This additional clause makes the instant
case distinguishable.
As opposed to the term “pornography,” the statute under which Thompson was
convicted provides him with notice of what materials would be “sexually explicit.”
See 18 U.S.C. § 2256(2); see also Farrell, 449 F.3d at 487 (concluding that a statutory
definition of a term does not give additional notice to a defendant as to that term’s
meaning unless the definition is contained in the same criminal statute that the
defendant was convicted of violating). Thus, remembering that “we can never expect
-11-

Appellate Case: 10-3840

Page: 11

Date Filed: 09/02/2011 Entry ID: 3825200

mathematical certainty from our language,” Grayned v. City of Rockford, 408 U.S.
104, 110 (1972), we conclude that Special Condition 16 is not unconstitutionally
vague.
D.
Thompson’s final argument is that Special Conditions 17 and 18 “involve a
greater deprivation of liberty than necessary to promote the goals of sentencing.”
However, Thompson provides no explanation as to why these conditions are
unnecessary besides his assertion that Standard Conditions 6, 11, and 13 effectively
“provide the probation officer with adequate means to keep tabs on Thompson’s
whereabouts and activities,” and thus Special Conditions 17 and 18 “are simply
overkill.”
We first note that Standard Conditions 6, 11, and 13 are not identical to Special
Conditions 17 and 18, and they address different concerns. Standard Condition 6
requires that Thompson notify his probation officer prior to a change in residence or
employment whereas Special Condition 17 requires that such a change be preapproved by the probation officer. Standard Condition 13 requires Thompson to
notify, or permit his probation officer to notify, third parties of risks that may arise
from his criminal record whereas Special Condition 18 requires Thompson to consent
to third party disclosure to any employer or potential employer of his computer-related
restrictions. Standard Condition 11 differs from each of these conditions and requires
Thompson to notify his probation officer if he is questioned or arrested by a law
enforcement officer.
Moreover, although Thompson believes Special Conditions 17 and 18 are not
necessary, the district court explained its reasons for imposing each condition. The
district court explained that Special Condition 17 “helps the probation office ensure
that the defendant is complying with sex offender registration requirements and that
-12-

Appellate Case: 10-3840

Page: 12

Date Filed: 09/02/2011 Entry ID: 3825200

his employment does not involve any risk to vulnerable individuals.” (Sent. Tr. 19.)
The court also believed that Special Condition 18 was “necessary to make sure that
[Thompson] doesn’t run afoul of other conditions of his supervised release.” (Sent.
Tr. 19.)
In light of the sound reasons announced by the district court for imposing
Special Conditions 17 and 18, and without any clear objection from Thompson—other
than the assertion that these conditions are “overkill”—we conclude the imposition
of these conditions was not an abuse of discretion.
III.
For the foregoing reasons, we affirm Thompson’s sentence.
______________________________

-13-

Appellate Case: 10-3840

Page: 13

Date Filed: 09/02/2011 Entry ID: 3825200