USA v. Daniel Apodaca

Filing

FILED OPINION (RICHARD D. CUDAHY, KIM MCLANE WARDLAW and WILLIAM A. FLETCHER) AFFIRMED. Judge: RDC Authoring, Judge: WAF Concurring. FILED AND ENTERED JUDGMENT. [7713158]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DANIEL APODACA,
Defendant-Appellant.





No. 09-50372
D.C. No.
2:08-cr-0793DDP-1
OPINION

Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Argued and Submitted
October 5, 2010—Pasadena, California
Filed April 12, 2011
Before: Richard D. Cudahy,* Kim McLane Wardlaw and
William A. Fletcher, Circuit Judges.
Opinion by Judge Cudahy;
Concurrence by Judge W. Fletcher

*The Honorable Richard D. Cudahy, Senior United States Circuit Judge
for the Seventh Circuit, sitting by designation.

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COUNSEL
Sean K. Kennedy, Federal Public Defender, and Jonathan D.
Libby, Deputy Federal Public Defender, Los Angeles, California, for the appellant.
Andre Birotte Jr., United States Attorney, Christine C. Ewell,
Assistant United States Attorney, and Stephanie S. Christensen, Assistant United States Attorney, Los Angeles, California, for the appellee.

OPINION
CUDAHY, Circuit Judge:
Daniel Apodaca pleaded guilty to one count of possession
of child pornography in violation of 18 U.S.C.
§§ 2252A(a)(5)(B), (b)(2). The district court deviated downward from the United States Sentencing Guidelines’ recommendation and sentenced Apodaca to two years imprisonment
and lifetime supervised release. Apodaca appeals the supervised release portion of his sentence, arguing that its length
was unreasonable and that one of the supervised release conditions violates his constitutional rights. We affirm.

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I.
A.

Jurisdiction and Standard of Review

We review the length of a term of supervised release for
reasonableness. United States v. Daniels, 541 F.3d 915, 921
(9th Cir. 2008). When reviewing a sentence for reasonableness, we “merely ask[ ] whether the trial court abused its discretion.” Rita v. United States, 551 U.S. 338, 351 (2007).
Similarly, this court reviews “a district court’s determination
of the appropriate supervised release conditions . . . for abuse
of discretion.” United States v. Weber, 451 F.3d 552, 557 (9th
Cir. 2006). We have jurisdiction under 18 U.S.C. § 3742 and
28 U.S.C. § 1291.
B.

Factual and Procedural Background

In January 2008, the Los Angeles Police Department conducted an undercover, online investigation of individuals
sharing child pornography over the internet. During the
course of this investigation, a detective discovered that a computer owned by Daniel Apodaca contained a sizeable library
of child pornography. On March 6, 2008, officers executed a
federal search warrant at Apodaca’s apartment. These officers
seized Apodaca’s laptop, which contained the pornographic
materials the police had discovered earlier, and several compact discs, which contained further pornographic images and
videos of children.
On July 23, 2008, Apodaca was arrested and charged with
one count of violating 18 U.S.C. § 2252A(a)(5)(B), (b)(2) in
the U.S. District Court for the Central District of California.
The court released him on a $10,000 appearance bond and
ordered that he comply with certain conditions of release.
Apodaca fully complied with the terms of his release on bond.
On December 12, 2008, Apodaca appeared before the district court and pleaded guilty. He acknowledged that he had

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knowingly possessed child pornography, that he knew that the
persons depicted in the pornography were minors and that
some of the pornography depicted children engaged in sadistic or masochistic acts. At the plea hearing, the court ensured
that Apodaca knew that the maximum penalty for his offense
included a lifetime period of supervised release.
On July 10, 2009, the district court conducted Apodaca’s
sentencing hearing. The court began by making sure that it
had received and reviewed all of the sentencing documents
that the parties had filed. It went on to hear arguments from
both parties concerning what punishment the court should
impose on Apodaca. The court also heard Apodaca’s allocution.
After acknowledging all of the information the parties had
submitted, the court calculated an advisory offense level of 28
for Apodaca’s conduct and a Criminal History Category of I.
It went on to sentence Apodaca to 24 months imprisonment,
a multiple-year downward deviation from the Guidelinesrecommended sentence of 78 to 97 months. In deciding to
depart downward, the court found that Apodaca’s behavior
fell on the low end of the spectrum of relevant criminal conduct and that he presented a low risk of recidivism.
The district court further ordered that, upon release from
imprisonment, Apodaca would be placed on supervised
release for the Guidelines-recommended term of life. While
on supervised release, the court stated that Apodaca would
have to comply with fifteen specific terms and conditions.
Fourteen of these conditions were taken directly from the initial Presentence Report filed by Apodaca’s Probation Officer,
with minor modifications being incorporated to accommodate
objections raised by Apodaca’s counsel at the sentencing
hearing. The fifteenth condition was first proposed in the
United States’ response to Apodaca’s sentencing position and
was adopted by the Probation Officer in her second addendum
to her Presentence Report. This provision prohibited Apodaca

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from “associat[ing] or hav[ing] verbal, written, telephonic, or
electronic communication with any person under the age of
18,” with limited exceptions. Finally, in response to Apodaca’s concerns about the length of his term of supervised
release, the sentencing judge indicated that he would not necessarily be opposed at a later time to shortening Apodaca’s
term of supervised release and included a statement in the
sentencing order permitting Apodaca to request such relief
later.
Apodaca appeals from the district court’s sentencing order
on two grounds. First, he claims that the imposition of lifetime supervised release was unreasonable. Second, he claims
that the fifteenth supervised release condition violates his constitutional rights. For the reasons articulated below, we reject
both arguments.
II.
We conduct a two-step analysis when reviewing the reasonableness of a sentence: “we first consider whether the district
court committed significant procedural error, then we consider the substantive reasonableness of the sentence.” United
States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc).
A.

Procedural Error

When determining whether a district court committed a
reversible procedural error during sentencing, we consider
whether the court “(1) correctly calculate[d] the Sentencing
Guidelines range; (2) treat[ed] the Guidelines as Advisory; (3)
consider[ed] the 18 U.S.C. § 3553(a) factors; (4) [chose] a
sentence that is not based on clearly erroneous facts; (5) adequately explain[ed] the sentence; and (6) [did] not presume
that the Guidelines range is reasonable.” United States v.
Blinkinsop, 606 F.3d 1110, 1114 (9th Cir. 2010) (footnote
omitted) (citing Carty, 520 F.3d at 991-93). While Blinkinsop
and Carty concerned allegations of procedural error with

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regard to terms of imprisonment, we consider the same factors
when considering challenges to terms of supervised release.
See Daniels, 541 F.3d at 921.
[1] Apodaca’s allegations of procedural error are limited to
claims concerning the adequacy of the district court’s explanation of why it was imposing a lifetime term of supervised
release. The sentencing statutes require district courts to “state
in open court the reasons [supporting] imposition of a particular sentence.” 18 U.S.C. § 3553(c). Further, “when a party
raises a specific, non-frivolous argument tethered to a relevant
§ 3553(a) factor in support of a requested sentence, then the
judge should normally explain why he accepts or rejects the
party’s position.” Carty, 520 F.3d at 992-93. Even though a
“within-Guidelines sentence ordinarily needs little explanation,” courts are required to provide some explanation for
their decision when “a party has requested a specific departure.” Id. at 992. Such explanations, however, only need to
“set forth enough to satisfy the appellate court that [the trial
court judge] considered the parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking
authority.” Rita v. United States, 551 U.S. 338, 356 (2007).
We have held that “no lengthy explanation is necessary if the
record makes it clear that the sentencing judge considered the
evidence and arguments.” Daniels, 541 F.3d at 922 (internal
quotation marks omitted).
[2] A review of the sentencing hearing transcript establishes that the district court provided an adequate explanation
for the sentence it imposed on Apodaca. The court engaged
in an extensive colloquy with the parties prior to sentencing,
acknowledging what it felt were the strongest and weakest
aspects of Apodaca’s case. The sentencing judge also explicitly stated that he had considered all of the parties’ and the
probation officer’s submissions—documents that contained
the probation officer’s recommendation of lifetime supervised
release, Apodaca’s objections and the United States’ reply.
Further, the district court properly determined that a lifetime

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term of supervised release is recommended by the Guidelines
for his crime and that, while it was not compelled to sentence
Apodaca to this term, the facts of Apodaca’s case warranted
a sentence that included lifetime supervised release. See 18
U.S.C. § 3583(k); U.S.S.G. § 5D1.2(b)(2) & cmt. n.1. See
also Daniels, 541 F.3d at 923. Finally, when Apodaca
objected to the length of the sentence’s term of supervised
release, the district court addressed his concern (albeit briefly)
and modified the language of the sentencing order to permit
Apodaca to seek relief from this aspect of his sentence at a
later date. It is clear that the trial court adequately justified its
sentencing decisions.
B.

Substantive Reasonableness

[3] Having determined that the district court did not commit a procedural error when sentencing Apodaca, we turn to
considering the sentence’s substantive reasonableness.
Blinkinsop, 606 F.3d at 1116. When reviewing the substantive
reasonableness of a sentence, we look at the reasonableness
of the sentence “in light of all the 18 U.S.C. § 3553(a) factors,
including the applicable Guideline range,” United States v.
Cantrell, 433 F.3d 1269, 1280 (9th Cir. 2006), as well as “the
degree of variance for a sentence imposed outside the Guidelines range.” United States v. Autery, 555 F.3d 864, 870 (9th
Cir. 2009) (citing Carty, 520 F.3d at 993). Trial courts are
supposed to impose sentences that are “sufficient but not
greater than necessary,” 18 U.S.C. § 3553(a), and appellate
courts are only to reverse sentences when they find that the
trial court has abused its discretion. United States v. Barsumyan, 517 F.3d 1154, 1157-58 (9th Cir. 2008). “The fact that
the appellate court might reasonably have concluded that a
different sentence was appropriate is insufficient to justify
reversal of the district court.” Gall v. United States, 552 U.S.
38, 51 (2007). We have previously held that sentencing individuals convicted of possessing child pornography to lifetime
terms of supervised release is not substantively unreasonable.

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United States v. Cope, 527 F.3d 944, 952 (9th Cir. 2008);
Daniels, 541 F.3d at 922.
Apodaca claims that the district court’s decision to sentence
him to a lifetime term of supervised release was unreasonable
on two grounds. First, he contends that the district court did
not consider all of the mitigating facts present in his case and
that the court’s sentence contradicted its own findings concerning Apodaca’s character and likelihood of committing
future crimes. Second, he argues that the court failed to recognize important differences between individuals who have
been convicted of possession-only child pornography crimes
and violent sexual predators, leading it to enter an unduly
severe sentence.
[4] Although a district court’s failure to properly consider
the § 3553(a)-relevant facts of a defendant’s case may support
a finding of substantive unreasonableness, Apodaca’s contention is not supported by the record. See United States v.
Amezcua-Vasquez, 567 F.3d 1050, 1055 (9th Cir. 2009).
Despite Apodaca’s assertions to the contrary, there is every
indication that the district court considered the specific facts
presented by his case and that its sentence was consistent with
its assessment of these facts. The transcript of the sentencing
hearing shows that the court spent a good amount of time discussing the defendant’s particular circumstances. The court
stated what it felt were the positive aspects of defendant’s
character and referenced various facts that had been set forth
in Apodaca’s character evidence. These findings led it to sentence Apodaca to a term of imprisonment that was several
years below that recommended by the Guidelines. The fact
that the district court did not also depart from the Guidelines’
recommended term of supervised release does not establish
that the court’s sentence was inconsistent with its own factual
findings. Rather, it simply indicates that the court found that
Apodaca’s case merited a reduced jail sentence, but not a
reduction in the term of supervised release.

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[5] Apodaca’s stronger argument is that imposition of lifetime supervised release constitutes a disproportionately severe
punishment for his crime. In this connection, several of our
sister circuits have criticized the Guidelines-recommended
sentence for possession-only offenders like Apodaca as being
unduly severe. See, e.g., United States v. Grober, 624 F.3d
592, 603-10 (3d Cir. 2010) (affirming a below-Guidelines
sentence and identifying problems with the relevant Guidelines provisions); United States v. Dorvee, 616 F.3d 174, 18289 (2d Cir. 2010) (reversing a within-Guideline sentence for
a possession-only defendant because the length of the term of
imprisonment made it “manifestly unjust”). Similarly, an
increasing number of district courts have refused to follow the
Guidelines and have departed downward when sentencing
possession-only defendants. See United States v. Diaz, 720 F.
Supp. 2d 1039, 1041-42 (E.D. Wis. 2010) (sentencing defendant to six months of imprisonment and twelve years of
supervised release and collecting similar cases).
These decisions have identified several problems with the
Guidelines’ treatment of individuals such as Apodaca. First,
a review of the history behind the sentencing provisions for
child pornography establishes that they were not developed
pursuant to the Sentencing Commission’s normal processes
and were not based on empirical data and expertise. Grober,
624 F.3d at 611; Dorvee, 616 F.3d at 184-85. Second, the
Guidelines provide a large number of sentence enhancements,
which apply in nearly every case and cause routine offenses
to generate sentence recommendations approaching (or
exceeding) statutory maximums. Grober, 624 F.3d at 611;
Dorvee, 616 F.3d at 186. Concentrating offenders at the top
of the sentencing spectrum in this manner has been described
as “fundamentally incompatible with § 3553(a).” Dorvee, 616
F.3d at 187. Finally, earlier this year, the Sentencing Commission conducted a survey of the district courts that revealed
widespread dissatisfaction with the extreme length of the
Guideline-recommended sentences for possession-only defendants. United States Sentencing Commission, Results of Sur-

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vey of United States District Judges January 2010 through
March 2010 (2010), available at http://www.ussc.gov/
Judge_Survey/2010/JudgeSurvey_201006.pdf.
[6] It is certainly true that most of the decisions criticizing
this area of the Guidelines have focused on the severity of its
imprisonment recommendations. But there are plausible reasons to question whether the supervised release provisions are
similarly skewed. Under U.S.S.G. § 5D1.2(b) and 18 U.S.C.
§ 3583(k), a lifetime term of supervised release is recommended for all individuals convicted of sex offenses, regardless of whether the offense in question is a violent rape or
child molestation versus mere possession of child pornography. Not only is the failure to distinguish between contact and
possession-only offenders questionable on its face, but it may
go against the grain of a growing body of empirical literature
indicating that there are significant, § 3553(a)-relevant differences between these two groups. See generally Jesse B. Basbaum, Note, Inequitable Sentencing for Possession of Child
Pornography: A Failure To Distinguish Voyeurs from Pederasts, 61 HASTINGS L.J. 1281, 1294-97 (2010) (collecting recent
studies). These studies have frequently, but not unanimously,
found that possession-only offenders are less likely to recidivate or commit more serious contact offenses than other sex
offenders. See, e.g., Andreas Frei et al., Paedophilia on the
Internet — A Study of 33 Convicted Offenders in the Canton
of Lucerne, 135 SWISS MED. WKLY 488 (2005); Michael C.
Seto & Angela W. Eke, The Criminal Histories and Later
Offending of Child Pornography Offenders, 17 SEXUAL
ABUSE: J. RES. & TREATMENT 201 (2005). But see Michael L.
Bourke & Andres E. Hernandez, The ‘Butner Study’ Redux:
A Report on the Incidence of Hands-On Child Victimization
by Child Pornography Offenders, 24 J. FAM. VIOLENCE 183
(2009).1
1

While the United States has relied upon the Bourke and Hernandez
study to support its claims concerning the dangers posed by possession-

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[7] If we were presented with scientific evidence that conclusively (or near-conclusively) established that possessiononly Internet child pornographers were highly unlikely to
recidivate or commit more serious sex offenses, then we
might have grounds to find that sentencing an individual like
Apodaca to a lifetime term of supervised release is substantively unreasonable. Sentencing individuals who pose little
risk to society to a lifetime term of supervised release might
well violate 18 U.S.C. § 3553(a)’s prohibition on imposing
sentences that are “greater than necessary.” Unfortunately for
Apodaca, the scientific literature before this court falls short
of this standard. While there is substantial evidence indicating
that the current Guidelines-recommended sentence for
possession-only offenders may be difficult to support, the
decision as to whether the Guidelines should be revised must,
at this point, be made by the legislature and Sentencing Commission. In the present case, the sentencing judge rested his
case regarding the term of supervised release with the comment that he felt the lifetime term was “a way of saying let’s
be really safe and careful.” Given the current state of research
in this area, we cannot hold that this conclusion is unreasonable.
[8] Because we have rejected both of Apodaca’s substantive unreasonableness arguments, we conclude that the district
court did not abuse its discretion when sentencing Apodaca to
lifetime supervised release. This finding places today’s holding in line with our decisions in similar cases. See Cope, 527
F.3d at 951-52; Daniels, 541 F.3d at 922.
only child pornographers, it must be noted that one of the study’s authors
has criticized the government’s characterization of his work, stating that
“the argument that the majority of [child pornography] offenders are
indeed contact sexual offenders and, therefore, dangerous predators . . .
simply is not supported by the scientific evidence.” Andres E. Hernandez,
Psychological and Behavior Characteristics of Child Pornography
Offenders in Treatment 4 (Apr. 2009) (unpublished manuscript),
available at http://www.iprc.unc.edu/G8/Hernandez_position_paper_
Global_Symposium.pdf.

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III.
Apodaca argues that the fifteenth condition of his supervised release violates his constitutional rights. The provision
in question provides:
The defendant shall not associate or have verbal,
written, telephonic, or electronic communication
with any person under the age of 18, except: a) in the
presence of the parent or legal guardian of said
minor; and b) on the condition that the defendant
notify said parent or legal guardian of his/her conviction in the instant offense/prior offense. This provision does not encompass persons under the age of
18, such as waiters, cashiers, ticket vendors, etc.,
with whom the defendant must deal with in order to
obtain ordinary and usual commercial services.
Apodaca contends that this condition would preclude him
from having contact with a child of his own, thereby restricting his right to procreate and raise a family, a fundamental
interest guaranteed him under the Constitution.
[9] This provision of the sentencing order does not violate
Apodaca’s constitutional rights. The plain language of the
condition distinctly allows Apodaca to have contact with children in the presence of their duly notified parent or legal
guardian. Were Apodaca to have children, he would be able
to associate with his own children because he would be their
parent and, as such, would automatically fall within the provision’s exception. Hence, this condition does not burden his
right to procreate or raise children. See United States v. Stoterau, 524 F.3d 988, 1008 (9th Cir. 2008) (upholding a nearly
identical condition).
IV.
For the reasons set forth above, the district court’s sentence
is AFFIRMED.

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W. FLETCHER, J., concurring:
Because the district court committed no procedural error
and sentenced Apodaca to the lifetime term of supervised
release recommended by the Guidelines, our precedents
require us to affirm Apodaca’s sentence. See, e.g., United
States v. Carty, 520 F.3d 984, 993-94 (9th Cir. 2008) (en
banc). I therefore concur in the judgment and almost all of the
opinion.
I write separately to state my view that the applicable statute, 18 U.S.C. § 3583(k), and Guidelines policy statement,
U.S.S.G. § 5D1.2(b)(2), grossly overestimate the risk that
defendants like Apodaca, who are convicted only of possessing child pornography downloaded from the Internet, and who
have no prior contact child sex abuse convictions, will commit contact sex offenses against children. Compare, e.g.,
United States v. Williams, No. 10-30084, 2011 WL 768082,
at *1 (9th Cir. March 7, 2011) (prior child sexual assault convictions). The routine imposition of lifetime terms of supervised release on Internet-only child pornography offenders
departs from Congress’s purpose in enacting § 3583(k) and
ignores the best available empirical evidence. This practice
results in onerous sentences imposed without individualized
attention to the “history and characteristics of the defendant,”
18 U.S.C. § 3553(a)(1), or to the “need for the sentence
imposed to protect the public from further crimes of the
defendant.” Id. § 3553(a)(2)(C).
A lifetime term of supervised release is extremely rare.
Less than one percent of the federal defendants sentenced
between fiscal years 2005-09 received such a term.
U.S. SENT’G COMM’N, FEDERAL OFFENDERS SENTENCED TO
SUPERVISED RELEASE 58-60 & nn.252-55 (2010),
available
at
http://www.ussc.gov/Research/Research_
Publications/Supervised_Release/20100722_Supervised_
Release.pdf. Congress has provided for lifetime supervision
for defendants convicted of drug trafficking offenses, see 21

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U.S.C. §§ 841(b), 960(b); terrorism offenses, see 18 U.S.C.
§§ 2332b(g)(5)(B), 3583(j); and various sex offenses, see id.
§ 3583(k). For all other crimes, the maximum term of supervision is five years. Id. § 3583(b). The “overwhelming majority” — more than 95 percent — of those who received lifetime
supervision were convicted of sex offenses. U.S. SENT’G
COMM’N, supra, at 58-59.
When Congress enacted § 3583(k), it had in mind sex
offenders who had committed contact offenses against children and were perceived to pose high risks of recidivism. See
PROTECT Act of 2003, Pub. L. No. 108-21, § 101(3), 117
Stat. 650, 651-52; H.R. CONF. REP. NO. 108-66, at 49-50
(2003) (defending lifetime supervised release as necessary to
monitor “the perpetrators of child sexual abuse crimes, whose
criminal conduct may reflect deep-seated aberrant sexual disorders that are not likely to disappear within a few years of
release from prison”), reprinted in 2003 U.S.C.C.A.N. 683,
684. See also, e.g., 149 Cong. Rec. S5113-01, 5132 (Apr. 10,
2003) (statement of Sen. Sessions) (“[S]exual offenders and
predators are repeat offenders. A 1998 study of sexual recidivism factors for child molesters showed that 43 percent of
offenders sexually reoffended within a 4-year follow-up
period. Almost half of the people arrested as child molesters
reoffended in a sexual abuse case within 4 years. . . . We put
in a provision that would allow lifetime supervision . . . . The
theory behind it is simply this: science and history tell us that
child molesters are repeat offenders.”).
The legislative history of a bill passed by the House in the
previous Congress, which was the genesis of § 3583(k), confirms this understanding. See Lifetime Consequences for Sex
Offenders Act of 2002, H.R. 4679, 107th Cong. (2002); H.R.
CONF. REP. 108-66, at 50. The House Report on H.R. 4679
focused on the risk of recidivism posed by violent sexual
offenders and persons convicted of sexual assault. See H.R.
REP. NO. 107-527, at 2 (2002). Likewise, debate on the 2002
bill before the House Judiciary Committee indicates that Rep-

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resentatives were primarily concerned with the threat of recidivism by contact sex offenders against children. See, e.g.,
Lifetime Consequences for Sex Offenders Act of 2002:
Markup Transcript on H.R. 4679 Before the H. Comm. on the
Judiciary, 107th Cong. 12 (2002) (statement of Rep.
Green)(“This is giving judges the tools to prevent sex crimes
against kids, because we know that sex crimes against kids —
those monsters who perpetrate sex crimes against kids have
among the highest recidivism rates of any type of offender.”),
available at http://judiciary.house.gov/legacy/107-527.pdf.;
id. at 23 (statement of Rep. Lofgren) (“[E]specially in the case
of child molesting, where the recidivism rate is almost 100
percent, I think just releasing a child molester is a very dangerous thing to do.”).
Current empirical literature casts serious doubt on the existence of a substantial relationship between the consumption of
child pornography and the likelihood of a contact sexual
offense against a child. For example, one recent study that followed 231 child pornography offenders for six years after
their initial offenses found that only nine persons, or 3.9 percent of the sample, committed even a non-contact sexual
offense; only two persons, or 0.8 percent of the sample, committed a contact offense. Jérôme Endrass et al., The Consumption of Internet Child Pornography and Violent Sex
Offending, 9 BMC PSYCHIATRY 43 (2009), available at
http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2716325/pdf/
1471-244X-9-43.pdf.Endrass et al. concluded that “the consumption of child pornography alone does not seem to represent a risk factor for committing hands-on sex offenses . . . at
least not in those subjects without prior convictions for handson sex offenses.” Id. See also Michael C. Seto & Angela W.
Eke, The Criminal Histories and Later Offending of Child
Pornography Offenders, 17 SEXUAL ABUSE 201, 208 (2005)
(“[O]ur finding does contradict the assumption that all child
pornography offenders are at very high risk to commit contact
sexual offenses involving children.”).

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Other studies reinforce the conclusion that individuals who
have only possessed and/or viewed child pornography present
substantially lower risks of harm than do individuals who
have committed contact sex offenses. See, e.g., L. Webb, J.
Craissati & S. Keen, Characteristics of Internet Child Pornography Offenders: A Comparison with Child Molesters, 19
SEXUAL ABUSE 449, 463 (2007) (finding Internet-only offenders “significantly less likely to fail in the community than
child molesters,” and concluding that “by far the largest
subgroup of internet offenders would appear to pose a
very low risk of sexual recidivism”), available at
http://sax.sagepub.com/content/19/4/449.full.pdf+html; Seto
& Eke, supra, at 207 & tbl.3 (finding that only 1.3 percent of
Internet-only offenders in the sample recidivated with contact
sex offenses, in contrast to 9.2 percent of persons with prior
Internet and contact sex offenses).
The government points to a single study that it argues demonstrates a causal link between viewing child pornography
and sexually assaulting children. Michael L. Bourke &
Andres E. Hernandez, The ‘Butner Study’ Redux: A Report on
the Incidence of Hands-On Child Victimization by Child Pornography Offenders, 24 J. FAMILY VIOLENCE 183 (2009). But
one of the study’s authors has disavowed the government’s
citation of his work to support this claim, and has cautioned
that “the argument that the majority of [child pornography]
offenders are indeed contact sexual offenders and, therefore,
dangerous predators . . . simply is not supported by the scientific evidence.” Andres E. Hernandez, Psychological and
Behavioral Characteristics of Child Pornography Offenders
in Treatment, at 4 (Apr. 2009) (unpublished manuscript)
(emphasis deleted), available at http://www.iprc.unc.edu/G8/
Hernandez_position_paper_Global_Symposium.pdf. The author has explained that, because the study subjects were volunteer participants in a prison sex offender treatment program, the observed correlation between Internet child
pornography consumption and contact sex offenses cannot be
generalized. Id. at 9. Moreover, the underlying Butner study

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reported that “[t]he vast majority of our subjects indicated
they committed acts of hands-on abuse prior to seeking child
pornography via the Internet.” Id. (emphasis in original). See
also Melissa Hamilton, The Efficacy of Severe Child Pornography Sentencing: Empirical Validity or Political Rhetoric?,
22 STAN. L. & POL’Y REV. (manuscript at 42-48) (forthcoming
2011) (pointing out further problems with the Butner study,
including sample bias and the possibility that study subjects
over-reported their history of sexual offenses in order to curry
favor with clinicians and avoid expulsion from the treatment
program),
available
at
http://papers.ssrn.com/sol3/
papers.cfm?abstract_id=1689507.
A growing body of literature suggests that the Internet —
by rendering child pornography more accessible, affordable,
and anonymously obtainable than in the past — has “facilitate[d] . . a new kind of crime.” Andreas Frei et al., Paedophilia on the Internet — A Study of 33 Convicted Offenders
in the Canton of Lucerne, 135 SWISS MED. WEEKLY 488, 492
(2005), available at http://www.smw.ch/docs/pdf200x/
2005/33/smw-11095.pdf. See also Endrass et al., supra, at 44;
Webb, Craissati, & Keen, supra, at 450. There is no evidence
that Congress or the Commission considered empirical evidence relevant to Internet-only offenders when they aggregated such offenders with contact sexual offenders under
§ 3583(k) and U.S.S.G. § 5D1.2(b)(2). Rather, Congress was
contemplating quite different criminals: “people who are convicted of pedophilia” for whom “the recidivism rate . . . is
close to 100 percent.” Markup Transcript on H.R. 4679,
supra, at 18 (statement of Rep. Sensenbrenner). That estimate
of the risk of subsequent contact sex offenses may be high
even with respect to contact sex offenders; with respect to
Internet-only offenders like Apodaca, it is simply wrong.
Congress has directed that, in setting a term of supervised
release, a sentencing court must select a term “sufficient, but
not greater than necessary, to,” inter alia, “protect the public
from further crimes of the defendant.” 18 U.S.C.

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§ 3553(a)(2)(C); id. § 3583(c). It is inconsistent with this
directive to treat all defendants convicted of one of the disparate group of sex offenses enumerated in § 3583(k) as equally
dangerous and therefore equally deserving of lifetime supervision. It is also inconsistent with the need to avoid unwarranted
similarities among sentences for defendants convicted of dissimilar conduct. See Gall v. United States, 552 U.S. 38, 55
(2007). Sentencing Guideline § 5D1.2(b)(2) recommends lifetime supervised release for any defendant convicted of a “sex
offense” — whether the offense is the violent rape of a child
by a defendant with several sex abuse priors or the downloading of child pornography over the Internet by a first-time
offender. It is difficult to reconcile this Guideline with the
requirement of § 3553(a)(1) that a sentencing court focus on
the particular characteristics of the offense and the offender.
See United States v. Dorvee, 616 F.3d 174, 187 (2d Cir.
2010); Carty, 520 F.3d at 991.
The policy statement at U.S.S.G. § 5D1.2(b)(2) does not
“exemplify the [Sentencing] Commission’s exercise of its
characteristic institutional role.” Kimbrough v. United States,
552 U.S. 85, 109 (2007). The Sentencing Commission added
the policy statement when the statutory maximum term of
supervised release was five years, not life. Compare U.S.S.G.
app. C, amend. 615 (2001) with 18 U.S.C. § 3583(b) (2000).
The Commission defined the term “sex offense” not by
attempting to classify various types of sex offenders with
respect to their relative risks of recidivism or their needs for
ongoing supervision and treatment, but by adopting Congress’s definition of that term. Compare U.S.S.G. app. C.,
amend. 701 (2007) (codified at U.S.S.G. § 5D1.2 cmt. n.1)
with PROTECT Act of 2003, Pub. L. No. 108-21, § 101(3),
117 Stat. 651, 652 (codified at 18 U.S.C. § 3583(k)) and
Adam Walsh Child Protection and Safety Act of 2006, Pub.
L. No. 109-248, § 141(e)(2), 120 Stat. 587, 603 (codified at
18 U.S.C. § 3583(k)). As was true of the crack Guidelines at
issue in Kimbrough, Congress, in enacting § 3583(k), relied
on “assumptions about the . . . prevalence of certain harmful

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conduct associated with” the consumption of child pornography “that more recent research and data no longer support.”
552 U.S. at 97 (internal quotation marks omitted).
The Commission has declared that a re-assessment of the
risk of recidivism posed by child pornography offenders is a
priority in the coming year. See Notice of Final Priorities, 75
Fed. Reg. 54,699, 54,699-700 (Sept. 8, 2010). Cf. Kimbrough,
552 U.S. at 99-100 (discussing Commission’s proposed
amendments to the 100:1 crack/powder sentencing ratio). As
the law now stands, Congress has permitted and the Sentencing Commission has recommended a lifetime term of supervised release for every child pornography offender. The
evidence demonstrates that in many cases, such a sentence is
not justifiable on the grounds that the defendant poses an elevated risk of committing contact sex offenses. I hope that
Congress or the Commission will address the undifferentiated
treatment of the dissimilar groups of sex offenders covered by
§ 3583(k) and U.S.S.G. § 5D1.2(b)(2) to ensure that terms of
supervised release are “no greater than necessary” to achieve
the purposes of sentencing, see 18 U.S.C. § 3553(a), while
keeping in mind that supervised release “fulfills rehabilitative
ends, distinct from those served by incarceration.” United
States v. Johnson, 529 U.S. 53, 59 (2000).