United States v. Steven Fonder

Filing

OPINION FILED - THE COURT: Steven M. Colloton, Raymond W. Gruender and Duane Benton AUTHORING JUDGE:Duane Benton (PUBLISHED) [4049908] [13-1141]

United States Court of Appeals
For the Eighth Circuit
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No. 13-1141
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Steven D. Fonder
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Nebraska - Omaha
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Submitted: June 13, 2013
Filed: June 28, 2013
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Before COLLOTON, GRUENDER, and BENTON, Circuit Judges.
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BENTON, Circuit Judge.
Steven D. Fonder pled guilty to receiving and distributing child pornography,
in violation of 18 U.S.C. § 2252A(a)(2), and possessing child pornography, in
violation of 18 U.S.C. § 2252(a)(4)(B). The district court1 sentenced him to 84
1

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

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months’ imprisonment and ten years’ supervised release. He appeals a special
condition of the supervised release as unconstitutionally overbroad and vague.
An Omaha Cyber Crimes Task Force Investigator discovered that Fonder’s IP
address was receiving and sharing child pornography. A warrant search of Fonder’s
residence uncovered over 35,000 images and over 1,000 videos of child pornography.
He admitted to downloading child pornography for about seven years.
At sentencing, Fonder – a first-time offender – objected to part of special
condition 18 of the supervised release: “The defendant shall not possess, view, or
otherwise use any material that is sexually stimulating or sexually oriented deemed
to be inappropriate by the U.S. Probation Officer in consultation with the treatment
provider.” The district court overruled his objection.
This court reviews the district court’s imposition of the terms and conditions
of supervised release for abuse of discretion. United States v. Boston, 494 F.3d 660,
667 (8th Cir. 2007). “A district court abuses its discretion when it makes an error of
law.” United States v. Weiland, 284 F.3d 878, 882 (8th Cir. 2002) (citation omitted),
citing Koon v. United States, 518 U.S. 81, 100 (1996). This court reviews de novo
a district court’s legal conclusion that a condition does not violate a defendant’s
constitutional rights, and reviews for clear error the factual findings supporting that
conclusion. See United States v. Schaefer, 675 F.3d 1122, 1125 (8th Cir. 2012)
(“This court is particularly reluctant to uphold sweeping restrictions on important
constitutional rights, and applies de novo review to such conditions.”); United States
v. Asalati, 615 F.3d 1001, 1006 (8th Cir. 2010) (stating that review of a constitutional
claim is de novo); see also United States v. Grandon, 714 F.3d 1093, 1096 (8th Cir.
2013) (“We review sentences under a deferential abuse of discretion standard,
reviewing the district court’s factual findings for clear error and its application of the
guidelines de novo.”); United States v. Watson, 480 F.3d 1175, 1176-77 (8th Cir.
2007) (“We review the ultimate sentence for . . . abuse[]of[]discretion . . . .”). That
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a district court’s decision “may call for a legal determination does not mean, as a
consequence, that parts of the review must be labeled de novo while other parts are
labeled an abuse of discretion.” Koon, 518 U.S. at 100. “The abuse-of-discretion
standard includes review to determine that the discretion was not guided by erroneous
legal conclusions.” Id. “On substantive review, this court considers the totality of the
facts, including: the recency of the conduct prompting the condition[], the extent and
severity of that conduct, the probation officer’s authority to waive the condition[], and
how severely the condition[] restrict[s] the defendant’s liberty.” Schaefer, 675 F.3d
at 1125.
Fonder contends special condition 18 is overbroad under the First Amendment
and void for vagueness under the Fourteenth Amendment. This court’s decision in
United States v. Hobbs, 710 F.3d 850 (8th Cir. 2013), forecloses his contentions.
There, the defendant had “over 20,000 images of child pornography” and admitted
“accessing child pornography for approximately seven years.” Hobbs, 710 F.3d at
852. The defendant pled guilty to one count of possessing child pornography. Id. at
851. He challenged as overbroad and vague an identical special condition of
supervised release. Id. at 855. Like Fonder, he relied primarily on United States v.
Simons, 614 F.3d 475 (8th Cir. 2010), and United States v. Kelly, 625 F.3d 516 (8th
Cir. 2010). Id. The Hobbs court distinguished them — the restriction held overbroad
in those cases “was an absolute ban on possessing material ‘that contains nudity,’
which would include biology textbooks and famous works of art.” Id. In contrast, the
condition in Hobbs was “limited to sexually stimulating or sexually oriented material,
and further limited to obtaining prior approval of the probation officer ‘in consultation
with the treatment provider.’” Id. This court upheld the special condition. Id. at 85556 (noting this court has “repeatedly upheld these same or very similar conditions
when they were ‘obviously relevant to the child pornography offense at issue or to the
defendant’s history and characteristics’” (citations omitted), quoting United States v.
Deatherage, 682 F.3d 755, 764 (8th Cir. 2012)).

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The facts here are similar to Hobbs. Fonder accessed child pornography for
approximately seven years and had tens of thousands of images. The “restriction is
obviously relevant to [Fonder’s] admitted child pornography addiction.” Id. at 855.
Considering the totality of the facts, the special condition is neither overbroad nor
vague. The district court did not abuse its discretion in imposing special condition 18.
*******
The judgment of the district court is affirmed.
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