United States v. Anate Jackson

Filing

PER CURIAM OPINION FILED - THE COURT: Roger L. Wollman, Steven M. Colloton and Duane Benton (UNPUBLISHED) [4236974] [14-1715]

United States Court of Appeals
For the Eighth Circuit
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No. 14-1715
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Anate Jackson, also known as Anate Dave Jackson
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
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Submitted: December 8, 2014
Filed: January 23, 2015
[Unpublished]
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Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges.
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PER CURIAM.
Anate Jackson pleaded guilty to failure to register as a sex offender, in violation
of the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. § 2250.
Jackson appeals the district court’s imposition of Special Condition 2, which prohibits
him from possessing pornography while on supervised release. We vacate Special
Condition 2 and remand the case for resentencing.

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In 2002, Jackson was convicted in California of forcible rape and robbery.
After spending three and a half years in prison, he was released on parole. His parole
was revoked numerous times, including once for possessing a video depicting sexual
activity. While still on parole, Jackson moved to Arkansas without updating his sexoffender registration. He was arrested and pleaded guilty to violating SORNA.
At Jackson’s sentencing hearing, the district court imposed a special condition
of supervised release that prohibited the possession of pornography. The district court
explained the imposition of this condition by stating:
[T]his is general. And probation can come back later, and if you don’t
need all of this, probation can come back and ask me to remove this
requirement. I’m going to order, because you’re a sex offender, that you
not purchase, possess, or subscribe to media forms dealing with
pornographic images. . . . Normally that is a requirement . . . that we give
people in child pornography types of cases. But this is a case where,
with this underlying conviction, I think he needs to have some work
done on that.
Jackson objected to the lack of individualized findings for this condition, so we review
for abuse of discretion. United States v. Wiedower, 634 F.3d 490, 493 (8th Cir.
2011).
A district court may impose special conditions of supervised release as long as
the conditions (1) are “‘reasonably related’ to . . . the nature and circumstances of the
offense, the defendant’s history and characteristics, the deterrence of criminal conduct,
the protection of the public from further crimes of the defendant, and the defendant’s
educational, vocational, medical or other correctional needs”; (2) “‘involve[] no
greater deprivation of liberty than is reasonably necessary’ to advance deterrence, the
protection of the public from future crimes of the defendant, and the defendant’s
correctional needs”; and (3) are “consistent with any pertinent policy statements
issued by the sentencing commission.” United States v. Crume, 422 F.3d 728, 733
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(8th Cir. 2005) (alteration in original) (quoting 18 U.S.C. §§ 3583(d), 3553(a)). The
district court must craft special conditions of supervised release “on an individualized
basis; a court may not impose a special condition on all those found guilty of a
particular offense.” United States v. Davis, 452 F.3d 991, 995 (8th Cir. 2006).
Here, the district court did not make the individualized findings necessary to
impose the special condition prohibiting Jackson from accessing pornography.
Instead, the district court imposed the condition “because [Jackson is] a sex offender”
and because “with this underlying conviction, . . . he needs to have some work done.”
The district court abused its discretion when it considered Jackson as part of a class
of sex offenders and imposed the special condition based on Jackson’s underlying
conviction. See United States v. Kelly, 625 F.3d 516, 520 (8th Cir. 2010) (holding
that the district court abused its discretion by imposing a condition “based solely on
the character of [the defendant’s] previous convictions”); United States v. Bender, 566
F.3d 748, 752 (8th Cir. 2009) (holding that the district court abused its discretion by
imposing a special condition prohibiting the defendant from accessing “sexually
stimulating” materials when the district court made no individualized findings and
instead made general statements regarding sex offenders).
The government argues that the sentence should be affirmed because any error
was harmless. We have stated that “reversal is not required by a lack of
individualized findings if the basis for the imposed condition can be discerned from
the record,” and we have held harmless the district court’s failure to make
individualized findings before imposing a condition banning pornography when the
record demonstrated that the defendant had downloaded and viewed child
pornography for years before being convicted of a child-pornography offense. United
States v. Thompson, 653 F.3d 688, 693-94 (8th Cir. 2011). In contrast to Thompson,
however, the district court here not only failed to make individualized findings, but
indicated that it was imposing the condition based on Jackson’s status as a sex
offender. Furthermore, in Thompson, the defendant had a history of accessing child
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pornography, and the ban on all pornography was recommended by the presentence
investigation report (PSR). Here, the only mention of pornography in the PSR is that
Jackson’s parole was once revoked for possessing a video depicting sexual activity.
Finally, in contrast to Thompson, Jackson was convicted of a registration offense.
Although “[c]ourts can impose special conditions of supervised release not directly
related to the offense for which the defendant is being sentenced where ‘the special
conditions are related to another offense that the defendant previously committed,’”
Kelly, 625 F.3d at 519 (quoting United States v. Smart, 472 F.3d 556, 559 (8th Cir.
2006)), we have held that when the defendant is convicted of a registration offense
and the PSR does not discuss pornography or recommend a special condition of
supervised release banning pornography, “there is at least a ‘reasonable probability’
. . . that the court may have omitted the special condition if the court had followed the
requirement . . . to provide an individualized explanation for the restriction,” United
States v. Curry, 627 F.3d 312, 315 (8th Cir. 2010) (per curiam), vacated on other
grounds, 132 S. Ct. 1533 (2012). Here, the district court’s reasons for imposing the
special condition prohibiting pornography are not clear from the record, and it is
possible that the court would have omitted the special condition if it had felt required
to provide an individualized explanation.
Accordingly, we vacate Special Condition 2 and remand the case for
resentencing.
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