United States v. William Gauld

Filing

PER CURIAM OPINION FILED - THE COURT: Lavenski R. Smith, Duane Benton and Jane Kelly (PUBLISHED), CONCUR AND DISSENT BY: JANE KELLY [4438647] [15-1690]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 15-1690
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
William Gauld
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the Western District of Arkansas - Texarkana
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Submitted: February 29, 2016
Filed: August 18, 2016
[Published]
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Before SMITH, BENTON, and KELLY, Circuit Judges.
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PER CURIAM.
William Gauld pleaded guilty to receiving child pornography, a violation of 18
U.S.C. § 2252(a)(2). In the plea agreement, Gauld admitted that he was previously
adjudicated guilty as a juvenile of a sexual offense involving a minor. The district

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court1 held that Gauld's juvenile adjudication qualifies as a "prior conviction" under
18 U.S.C. § 2252(b)(1) and sentenced him in accordance with the statutory range. The
district court also imposed ten years of supervised release and banned Gauld from
using or possessing a computer as a special condition of supervised release. Gauld
appeals (1) the district court's treatment of his juvenile adjudication as a prior
conviction and (2) the computer ban. We affirm.
I. Background
Gauld created a profile on a photo-sharing website under the screen name
"lovesboys81." He posted sexually explicit pictures of young boys and made lewd
comments on the pictures that he posted. Gauld also admitted to downloading child
pornography. A search of Gauld's laptop and cell phone uncovered 921 images and
66 videos depicting child pornography. He told law enforcement that he last had
sexual contact with a minor in 1997 and that he used child pornography as a means
to control his impulses.
A federal grand jury charged Gauld in a five-count indictment. He pleaded
guilty to one count of receiving child pornography, and, as part of the plea agreement,
the remaining counts were dismissed at sentencing. As a juvenile, Gauld had been
adjudicated "delinquent" of a sexual offense involving a seven-year-old. Gauld's
presentence investigation report (PSR) calculated his total offense level as 34 and his
criminal history category as I. The resulting Guidelines range would have been 151
to 188 months' imprisonment. But the PSR noted that his prior juvenile adjudication
brought him under 18 U.S.C. § 2252(b)(1)'s statutory range. Because the mandatory
minimum sentence under § 2252(b)(1) is 15 years, the PSR calculated Gauld's
Guidelines range as 180 to 188 months' imprisonment.

1

The Honorable Susan O. Hickey, United States District Judge for the Western
District of Arkansas.
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Gauld objected to the PSR's determination that his juvenile adjudication
qualifies as a prior conviction under § 2252(b)(1). The district court held that it was
bound by our decision in United States v. Woodard, 694 F.3d 950 (8th Cir. 2012).
Accordingly, it sentenced Gauld to 180 months' imprisonment, the minimum under
§ 2252(b)(1). The district court also imposed ten years of supervised release with
several special conditions. Gauld did not raise any objections to the special conditions
at sentencing. Now, Gauld objects to the following special condition: "The defendant
shall not possess or use a computer, nor any other means of internet access."
II. Discussion
Gauld argues that the district court erred by (1) holding that his juvenile
adjudication qualifies as a prior conviction under 18 U.S.C. § 2252(b)(1), and (2)
imposing the computer ban. We review the district court's interpretation of 18 U.S.C.
§ 2252(b)(1) de novo. See United States v. Smith, 656 F.3d 821, 826 (8th Cir. 2011).
Where, as here, a defendant fails to timely object to a special condition, we review the
imposition of the special condition for plain error. See United States v. Ristine, 335
F.3d 692, 694 (8th Cir. 2003).
A. 18 U.S.C. § 2252(b)(1)
Gauld argues that our decision in Woodard is not controlling precedent for his
case. After initially opposing this argument, the government now agrees with Gauld's
position and joins him in asking us to remand the case to the district court. Gauld
reads Woodard narrowly as addressing only whether a juvenile adjudication may
constitute a prior conviction for Apprendi purposes, an issue we analyzed at length
in United States v. Smalley, 294 F.3d 1030, 1033 (8th Cir.2002). In the alternative,
Gauld argues that Woodard was wrongly decided and wishes to preserve the issue for
further appeal.
Gauld reads Woodard too narrowly. Woodard expressly addressed "whether
a juvenile adjudication can be considered a prior conviction under 18 U.S.C.
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§ 2252(b)." 694 F.3d at 952. Woodard's discussion of Apprendi did not limit its
holding to Apprendi issues. See id. at 952–53. The court discussed Apprendi for good
reason, and it is that reason that ultimately defeats Gauld's argument. Before
determining whether a juvenile adjudication qualified as a prior conviction under
§ 2252(b), the court needed to address whether a juvenile adjudication met the
constitutional requirements, as discussed in Apprendi, for use as a "prior conviction"
for sentencing purposes. See id. at 953. Congress's characterization of a juvenile
adjudication as a prior conviction is not dispositive because the characterization
implicates a defendant's due process rights. Id. The Apprendi discussion in Woodard
dealt with whether juvenile adjudications could constitutionally qualify as prior
convictions. The logical next question is do juvenile adjudications qualify as prior
convictions under § 2252(b). To resolve the defendant's appeal in Woodard, the court
necessarily had to answer the latter question. It did, answering "that a juvenile
adjudication may be considered a prior conviction under 18 U.S.C. § 2252(b)." Id.
(footnote omitted).
The dissent joins Gauld and the government in their interpretation of Woodard.
According to the dissent, Gauld's narrow reading of Woodard is "the most plausible
reading." But to read Woodard so requires assuming that the Woodard court ignored
and left unaddressed the defendant's main argument. The defendant's brief in
Woodard makes the same statutory construction argument on which Gauld, the
government, and the dissent all rely. When the Woodard holding is read in light of
the defendant's argument, the dissent's reading of "[a]pplying the same analysis" as
referring only to an Apprendi analysis is not plausible.
In Woodard, the defendant first argued that
the district court should not have relied upon this Court's determination
in United States v. Smalley, 294 F.3d 1030 (8th Cir. 2002) to determine
that prior juvenile adjudications are sufficient for purposes of 18 U.S.C.
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§ 2252(b)(2). Smalley involved interpretation of the Armed Career
Criminal Act wherein Congress specifically provided for the inclusion
of prior juvenile adjudications in determing [sic] the applicability of that
Act. There is no such statutory support in 18 U.S.C. § 2252(b)(2).
The defendant went on to argue that "Congress expressly includes juvenile
adjudication in other statutory schemes where Congress determines such previous
conduct should [qualify as a prior conviction]." Then, just as the dissent does, he cited
the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(C), and the Federal
Sex Offender Registration and Notification Act (SORNA), 42 U.S.C. § 16911(8), as
statutes that have expressly included juvenile adjudications within the definition of
a prior conviction. Because § 2252(b) contains "no analogous definition," he
concluded that Congress did not intend for a juvenile adjudication to qualify as a
prior conviction under § 2252(b).
The defendant in Woodard contested the district court's reliance on Smalley
because Smalley involved the ACCA—a statute that expressly included juvenile
adjudications within the definition of prior conviction. The Woodard court was not
persuaded that the absence of an express inclusion of juvenile adjudication in
§ 2252(b)'s definition warranted the defendant's conclusion. It pointed out that our
court has applied Smalley's holding—not analysis—to "the statutes criminalizing drug
offenses and establishing the penalties for violation thereof, [which] do not
characterize juvenile adjudications as prior convictions." Woodard, 694 F.3d at 953
(citing United States v. Dieken, 432 F.3d 906, 908–09 n.2 (8th Cir. 2006)). By
"[a]pplying the same analysis here," the Woodard court followed Dieken in treating
"prior conviction" similarly under the ACCA, SORNA, and § 2252(b). Id. Our
reading is buttressed by footnote two in Woodard. The court noted that its "holding
is consistent with the Eleventh Circuit's unpublished opinion in United States v.
Loomis, 230 [F. App'x.] 938, 939 (11th Cir. 2007) (per curiam), in which the Eleventh
Circuit found no plain error in the district court's determination that the defendant's

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youthful offender adjudication was a prior conviction under 18 U.S.C. § 2252(b)." Id.
at 953 n.2.
Woodard's holding binds this panel.2 See United States v. Reynolds, 116 F.3d
328, 329 (8th Cir. 1997) ("One panel may not overrule another."). The district court
did not err by holding that Gauld's juvenile adjudication qualifies as a prior
conviction under § 2252(b)(1).
B. Special Condition
Gauld concedes that he did not timely object to the special condition banning
his computer use and agrees that our review is for plain error. Gauld also
acknowledges that some limitation on his computer and internet use is appropriate
under 18 U.S.C. § 3583(d). He admits that the special condition is reasonably related
to the five factors referenced in § 3583(d)(1). He contends, however, that the
condition as stated creates a total ban, which amounts to a greater deprivation of
liberty than necessary.
2

Although we conclude that we are bound by Woodard, we do not think the
Woodard court had no reasons for its holding. The dissent places great weight on
§ 2252(b)'s lack of an express inclusion of juvenile adjudications. It believes that
"[w]hen a statute refers to "convictions" without qualification or redefinition, then,
we should presume that the term does not encompass juvenile adjudications." (Citing
United States v. Huggins, 467 F.3d 359, 361 (3d Cir. 2006).) But that presumption
might be assuming too much. After all, if Congress intended such a limitation, it
could have modified "prior conviction" with a term such as "adult," as the Sentencing
Commission has done. See, e.g., U.S.S.G. 2K2.1 cmt. n.1; U.S.S.G. 4B1.2 cmt. n.1.
Moreover, the Eleventh Circuit has held that a prior juvenile adjudication constituted
a "prior conviction" under 21 U.S.C. § 841(b)—a statute, like § 2252(b), that does not
expressly include juvenile adjudications alongside of prior convictions. See United
States v. Acosta, 287 F.3d 1034, 1037 (11th Cir. 2002) (noting that "the purpose of
section 841(b)(1)(B), 'to punish and deter recidivism,' would be frustrated if recidivist
offenders were excused from enhanced sentencing merely because their prior offenses
are not deemed 'convictions' under state law" (citation omitted)).
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A sentencing court has wide discretion in imposing a special condition of
supervised release, provided that such condition
(1) is reasonably related to the factors set forth in section 3553(a)(1),
(a)(2)(B), (a)(2)(C), and (a)(2)(D);
(2) involves no greater deprivation of liberty than is reasonably
necessary for the purposes set forth in section 3553(a)(2)(B), (a)(2)(C),
and (a)(2)(D); and
(3) is consistent with any pertinent policy statements issued by the
Sentencing Commission pursuant to 28 U.S.C. 994(a) . . . .
18 U.S.C. § 3583(d). Plain error results "if the district court deviates from a legal rule,
the error is clear under current law, and the error affects substantial rights." United
States v. Alvarez, 478 F.3d 864, 866 (8th Cir. 2007) (quotation and citation omitted).
"This final prong of plain-error review is formidable and requires a showing of more
than simple prejudice." United States v. Poitra, 648 F.3d 884, 889 (8th Cir. 2011)
(citations omitted).
Gauld argues that the special condition operates as a complete ban on Gauld's
computer and internet use. Gauld reads the condition too broadly. The condition as
worded may not be a model of clarity, but it need not be construed as a total ban on
all computer use whatsoever. Complete bans on computer and internet use
significantly constrict liberty in an era where computers are ubiquitous and present
even in automobiles and appliances. We prefer a reading of the condition that
comports with its lawful and reasonable enforcement. As such, the condition bans
only the use of a computer or other electronic device for obtaining internet access.
The purpose for the condition is to prevent Gauld from using the internet to acquire
or distribute child pornography or in any way pose a threat to minors through online

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solicitation. On plain error review, we decline to read the condition so broadly as to
prevent Gauld from using a non-internet-connected computing device.
Here, we cannot say that the district court plainly erred in imposing the special
condition. Possession of child pornography alone is insufficient to support broad bans
on computer and internet usage. See, e.g., United States v. Wiedower, 634 F.3d 490,
494–96 (8th Cir. 2011) (vacating district court's broad internet restriction where
defendant only received and possessed child pornography); United States v. Crume,
422 F.3d 728, 733 (8th Cir. 2005) (vacating broad ban on internet usage because "the
record [was] devoid of evidence that [the defendant] ha[d] ever used his computer for
anything beyond simply possessing child pornography"); United States v. Fields, 324
F.3d 1025, 1027 (8th Cir. 2003) (noting that "[a]ppellate courts have overturned
conditions seen as overly restrictive, especially in cases involving simple possession
of child pornography" (citation omitted)). Gauld admits that he did more than merely
possess or receive child pornography. He posted child pornography online for others
to view, posted repulsive sexual comments regarding minors, and admitted to viewing
child pornography frequently to control his impulses. The district court could rightly
conclude that Gauld would have a continuing strong desire to find and obtain child
pornography. See Alvarez, 478 F.3d at 867 (explaining that even though sentencing
courts are restricted from imposing broad internet bans for mere possession of child
pornography, "there is no violation of that restriction where . . . the defendant's
statements and actions may be interpreted to suggest that online material provides
him encouraging, actionable ideas"). Given the circumstances of Gauld's crime, it was
not plain error for the district court to prohibit Gauld's internet access by banning his
use of internet-connected computing devices.
III. Conclusion
Accordingly, we affirm the judgment of the district court.

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KELLY, Circuit Judge, concurring in part and dissenting in part.
Both the United States and Gauld agree that juvenile adjudications do not
constitute “prior convictions” under 18 U.S.C. § 2252(b)(1), and that as a result
Gauld faced a mandatory minimum sentence of only 5 years, not 15 years.3 In my
view, the parties are correct as a matter of statutory interpretation, and I do not think
our circuit precedent precludes us from reaching this conclusion.
As an initial matter, the Federal Juvenile Delinquency Act defines “juvenile
delinquency” to mean a violation of federal law by a minor that “would have been a
crime if committed by an adult.” 18 U.S.C. § 5031. Accordingly, a juvenile, unless
tried and convicted as an adult, is not “convicted” of a crime but rather “adjudged
delinquent.” 18 U.S.C. § 5032; see United States v. LWO, 160 F.3d 1179, 1182 n.4
(8th Cir. 1998).
Congress is free to define the term “conviction” in the context of any given
statute to encompass juvenile adjudications, and has on occasion done so. See, e.g.,
Sex Offender Registration and Notification Act (SORNA), 42 U.S.C. § 16911(8)
(“The term ‘convicted’ or a variant thereof, used with respect to a sex offense,
includes adjudicated delinquent as a juvenile for that offense, but only if the offender
is 14 years of age or older at the time of the offense and the offense adjudicated was
comparable to or more severe than aggravated sexual abuse . . . .”); Armed Career
Criminal Act, 18 U.S.C. § 924(e)(2)(C) (“As used in this subsection . . . the term
‘conviction’ includes a finding that a person has committed an act of juvenile
delinquency involving a violent felony.”); 18 U.S.C. § 521(a) (“‘Conviction’ includes
a finding, under State or Federal law, that a person has committed an act of juvenile

3

The government withdrew its prior brief urging affirmance and arrived at its
current position “after careful deliberations involving multiple components of the
Department of Justice, in connection with litigation in other districts.”
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delinquency involving a violent or controlled substances felony.”). But the fact that
Congress felt the need to redefine the terms “convicted” or “conviction” in these
statutes simply underscores that “Congress . . . specifically indicates when it intends
for juvenile adjudications to be considered convictions, while imposing age and
severity limitations on what sorts of adjudications may be considered.” United States
v. Nielsen, 694 F.3d 1032, 1038 (9th Cir. 2012).
When a statute refers to “convictions” without qualification or redefinition,
then, we should presume that the term does not encompass juvenile adjudications.
See United States v. Huggins, 467 F.3d 359, 361 (3d Cir. 2006) (“The Armed Career
Criminal Act (‘ACCA’) . . . explicitly provides that ‘the term “conviction” includes
a finding that a person has committed an act of juvenile delinquency involving a
violent felony.’ Unlike the ACCA, [21 U.S.C.] § 841(b)(1)(B) contains no such
definition, and we see no reason to write one into that provision where Congress has
not seen fit to do so.” (citation omitted)). In this case, this presumption is
strengthened by the principle of statutory interpretation that “[w]here Congress
includes particular language in one section of a statute but omits it in another section
of the same Act, it is generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.” Russello v. United States, 464
U.S. 16, 23 (1983) (citation omitted). Congress has on multiple occasions passed
statutes amending § 2252 without expanding the term “prior conviction” to include
juvenile adjudications, even as it simultaneously amended other sections of the
United States Code to include such adjudications.
Perhaps the clearest instance is the Adam Walsh Child Protection and Safety
Act of 2006, Pub. L. No. 109-248, 120 Stat. 587, given the fact that it was concerned
in part with preventing sexual offenses of children. Part of the act amended SORNA
to add the above-quoted language defining “convicted” to include being adjudicated
delinquent. See Adam Walsh Act § 111, 120 Stat. at 593. The act also amended 18
U.S.C. § 2252 – but did not expand its definition of “prior conviction” to include
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prior juvenile adjudications. See id. §§ 205–06, 120 Stat. at 613. This example can
be multiplied.4
The district court thought it was required to count Gauld’s juvenile
adjudication as a prior conviction by reason of our decision in United States v.
Woodard, 694 F.3d 950 (8th Cir. 2012). But the most plausible reading of Woodard
– the one advocated by both the government and Gauld – is that it decided only that
the Sixth Amendment to the Constitution permits using prior juvenile adjudications
to enhance a defendant’s statutory sentencing range, even if the fact of the
adjudication was not proved to a jury beyond a reasonable doubt. See Apprendi v.
New Jersey, 530 U.S. 466, 490 (2000) (holding that “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt”). The issue here, by contrast, is not whether the Constitution allows juvenile
adjudications to increase a statutory minimum without a jury finding, but whether
Congress provided for such an increase in § 2252(b)(1).
It is true that Woodard held “that a juvenile adjudication may be considered a
prior conviction under 18 U.S.C. § 2252(b).” Woodard, 694 F.3d at 953. But the full
paragraph in which that clause appears runs as follows:

4

For example, the government points to the Anti–Drug Abuse Act of 1988,
Pub. L. No. 100-690, § 6451, 102 Stat. 4181, 4371, the Violent Crime Control and
Law Enforcement Act of 1994, Pub. L. No. 103-322, § 150001, 108 Stat. 1796,
2033–34, and the Omnibus Consolidated Appropriations Act, 1997, Pub. L. No. 104208, § 383, 110 Stat. 3009, 3009-652, all of which added language dealing with
juvenile adjudications elsewhere in the United States Code. All three statutes also
amended § 2252 without expanding the definition of “prior convictions.” See AntiDrug Abuse Act of 1988 § 7511(b), 102 Stat. at 4485; Violent Crime Control and
Law Enforcement Act of 1994, § 160001(d), 108 Stat. at 2037; Omnibus
Consolidated Appropriations Act, 1997, § 121, 110 Stat. at 3009-30.
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Although it is true that the statute at issue in [United States v. Smalley,
294 F.3d 1030 (8th Cir. 2002)] is different from the statute at issue here,
we have applied Smalley’s holding in a drug offense case. See [United
States v.] Dieken, 432 F.3d [906,] 908–09 n. 2 [(8th Cir. 2006)]. Like
the statute at issue here, the statutes criminalizing drug offenses and
establishing the penalties for violation thereof do not characterize
juvenile adjudications as prior convictions. Applying the same analysis
here, we hold that a juvenile adjudication may be considered a prior
conviction under 18 U.S.C. § 2252(b).
Id. In other words, Woodard stated that it reached its conclusion by “[a]pplying the
same analysis” as this court’s opinion in Dieken – but Dieken concerned only the
Sixth Amendment constitutional question, not any statutory construction arguments.
See Dieken, 432 F.3d at 908 n.2 (relying on Smalley, 294 F.3d at 1033, for the
proposition that “juvenile adjudications can rightly be characterized as ‘prior
convictions’ for Apprendi purposes”). The concluding sentence thus likely means
that a juvenile adjudication “may be considered a prior conviction” consistent with
the Sixth Amendment.
Moreover, Woodard provided no reasons why the term “prior convictions” in
§ 2252(b)(1) would include juvenile adjudications, further suggesting that it did not
decide that issue. And even if it did purport to decide the statutory interpretation
issue, I am inclined to think it is not binding on us, because it did not address the
implications of the statutes cited above. See United States v. Ellis, 815 F.3d 419, 422
(8th Cir. 2016) (holding that an opinion is precedential for what it decided by its
terms rather than what it necessarily must have concluded); United States v. Bauer,
626 F.3d 406, 409 (8th Cir. 2010) (holding that because a precedent did not analyze
an issue it was “depriv[ed] of any persuasive, as well as precedential, value on that
issue”); Passmore v. Astrue, 533 F.3d 658, 660 (8th Cir. 2008) (“[W]hen an issue is
not squarely addressed in prior case law, we are not bound by precedent through stare
decisis.” (citation omitted)). So there is good reason to think that this panel could
reach the right result here without convening the en banc court.
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I would therefore vacate Gauld’s conviction and remand for resentencing. I
concur in the court’s denial of Gauld’s challenge to one of his special conditions of
supervised release.
______________________________

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