Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Blair

United States Court of Appeals, Tenth Circuit

August 13, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee
v.
MICHAEL LYLE BLAIR, Defendant-Appellant.

          Appeal from the United States District Court for the District of Colorado (D.C. No. 1:17-CR-00079-CMA-1)

          Kathleen Shen, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender with her on the brief) Office of the Federal Public Defender, Denver, Colorado, appearing for Defendant-Appellant.

          Paul Farley, Assistant United States Attorney (Jason R. Dunn, United States Attorney with him on the brief) Office of the United States Attorney, Denver, Colorado, appearing for Plaintiff-Appellee.

          Before BACHARACH, BALDOCK, and EBEL, Circuit Judges.

          EBEL, CIRCUIT JUDGE.

         This case requires us to decide whether a special condition of supervised release that states that the "defendant's use of computers and Internet access devices must be limited to those the defendant requests to use, and which the probation officer authorizes," R. Vol. I at 97, involves a "greater deprivation of liberty than is reasonably necessary for" deterring criminal activity, protecting the public, and promoting a defendant's rehabilitation in contravention of 18 U.S.C. §§ 3583(d)(2) and 3553(a)(2)(B)-(D). We conclude that this special condition violates these provisions because it allows the probation office to completely ban the defendant's use of the Internet by failing to place any restraints on a probation officer's ability to restrict a defendant's Internet access. Thus, the special condition is impermissibly broad, and the district court abused its discretion by imposing it. We vacate that challenged special condition and remand to the district court to reformulate it to conform with the dictates of this opinion. Blair also challenges the length of his sentence as substantively unreasonable, but we disagree with that challenge and accordingly we otherwise affirm his sentence.

         I. BACKGROUND

         In 2013, the police searched Michael Blair's home as part of an investigation that is unrelated to this case. During the search, the police discovered a hard drive belonging to Blair with more than 700, 000 images of child pornography on it. Ultimately, Blair was charged with and plead guilty to one count of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2).

         Blair's plea agreement anticipated that the district court would calculate his total offense level as twenty-eight, which would have resulted in an advisory guideline sentencing range of 78-97 months' imprisonment. Blair waived his right to appeal any sentence within that guideline range. The probation office prepared a Presentence Investigation Report (PSR), which calculated Blair's total offense level as thirty-three. The five levels not anticipated by the plea agreement were added because, after Blair's plea was entered, the government received statements from Blair's younger sister and his son alleging that Blair had sexually abused them when they were minors. Blair denied those allegations, but the district court heard testimony from both individuals and found them "very credible" and accordingly applied the five-level enhancement for a "pattern of activity involving the sexual abuse or exploitation of a minor." U.S.S.G. § 2G2.2(b)(5).

         According to the sentencing guidelines, Blair's total offense level of thirty-three and his category I criminal history resulted in an advisory guidelines sentencing range of between 135-168 months' imprisonment. However, the maximum sentence Blair could receive under the statute was 120 months, see 18 U.S.C.A. § 2252A(b)(2). Blair moved for a downward departure based on mitigating circumstances, including his age (63), physical health, mental illness, caretaker responsibilities for his wife who is cognitively deficient, history of suffering abuse as a child, and history of military service. The district court denied the motion and imposed the statutory maximum sentence of ten years' imprisonment plus seven years of supervised release.

         After calculating Blair's sentence, the district court imposed, among several others, the following special conditions of supervised release (Blair objects only to the underlined sentence):

6. The defendant's use of computers and Internet access devices must be limited to those the defendant requests to use, and which the probation officer authorizes. The defendant must submit his person, and any property, house, residence, vehicle, papers, computer, other electronic communications or data storage devices or media, and effects to search at any time, with or without a warrant, by any law enforcement or probation officer with reasonable suspicion concerning a violation of a condition of supervised release or unlawful conduct by the person, and by any probation officer in the lawful discharge of the officer's supervision functions.
7. You must allow the probation officer to install software/hardware designed to monitor computer activities on any computer you are authorized by the probation officer to use. The software may record any and all activity on the computer, including the capture of keystrokes, application information, Internet use history, email correspondence, and chat conversations. A notice will be placed on the computer at the time of installation to warn others of the existence of the monitoring software on the computer. You must not attempt to remove, tamper with, reverse engineer, or in any way circumvent the software/hardware.

R. Vol. I at 97.

         Blair now appeals.[1] First, Blair argues that his ten-year sentence is substantively unreasonable. We disagree and affirm Blair's sentence. Second, Blair argues that the special condition of supervised release underlined above is more restrictive "than is reasonably necessary" in violation of 18 U.S.C. § 3583(d)(2). We agree with that contention, vacate the special condition, and remand to the district court with instructions to reformulate it to accord with this opinion.

         II. DISCUSSION

         A. Prison Sentence Imposed was Substantively Reasonable

         First, Blair argues that the ten-year sentence the district court imposed is substantively unreasonable. We review substantive reasonableness challenges using an abuse of discretion standard to determine "whether the length of the sentence is reasonable given all the circumstances of the case in light of the factors set forth in 18 U.S.C. § 3553(a)." United States v. Martinez, 610 F.3d 1216, 1227 (10th Cir. 2010) (quotation and citation omitted). We do not reweigh the sentencing factors but instead ask whether the sentence fell within the range of "rationally available choices that facts and the law at issue can fairly support." Id. (internal quotation marks omitted). We reverse only when the district court "renders a judgment that is arbitrary, capricious, whimsical or manifestly unreasonable." Id. Furthermore, we presume that a sentence within the properly calculated guidelines range is reasonable. United States v. Franklin, 785 F.3d 1365, 1370 (10th Cir. 2015).

         Applying the sentencing guidelines, the district court calculated Blair's total offense level as thirty-three and his criminal history as category I, resulting in an advisory-guidelines sentencing range of between 135-168 months' imprisonment. However, the district court sentenced Blair to 120 months' imprisonment, an amount below that range, because by statute his offense was punishable by not more than ten years in prison, see 18 U.S.C.A. § 2252A(b)(2), and U.S.S.G. 5G1.1(a) provides that where the "statutorily authorized maximum sentence is less than the minimum of the applicable guideline range, the statutorily authorized maximum sentence shall be the guideline sentence." When a sentence is imposed in this way, it is considered "within" the applicable guideline range and may be presumed reasonable. United States v. Sangiovanni, 660 Fed.Appx. 651, 657 (10th Cir. 2016).

         As an initial matter, Blair argues that, even though his sentence falls within the applicable range calculated under the relevant guideline (§ 2G2.2), it is unreasonably long because section 2G2.2 is "inherently flawed" and lacks an empirical basis. Aplt. Br. at 22. We have heard and rejected this argument before. Franklin, 785 F.3d at 1370. "[W]e apply the presumption of reasonableness to sentences based on 2G2.2, regardless of its alleged lack of empirical support." Id. Therefore, we apply that presumption to Blair's remaining arguments.

         Blair asserts that the district court failed to give sufficient weight to three aspects of his personal history, his (1) difficult childhood, (2) poor mental and physical health, and (3) military service. We disagree. Blair asserts that the district court's finding that he "didn't have an abusive childhood" was clearly erroneous because he presented evidence that his father was abusive and an alcoholic. Aplt. Br. at 21 n.10. However, as the district court pointed out, the PSR supported its finding. R. Vol. VI at 255. The PSR stated that, although Blair's father was abusive, Blair "disavowed being the victim of any sexual abuse" and "reported a positive relationship with both parents, and with his sister Betsy." R. Vol. II.A at 18. As for Blair's concerns about his health, the district court explained that Blair's "physical and medical conditions do not constitute an extraordinary physical impairment" because Blair's "condition is not so unusual as to distinguish him from any other defendants over the age of 60" and the "Bureau of Prisons, especially with the aging prison population, has had to become adept in treating all types of illness and disabled individuals." R. Vol. VI at 251. Finally, although the district court did not mention Blair's military service specifically, it gave other reasons for its sentence, including its opinion that ten years was a just punishment to reflect the seriousness of the offense, which affected many victims who will "endure unimaginable physical and emotional pain for the entire rest of their lives," including Blair's sister and son and the thousands of people depicted in the images that he downloaded. R. Vol. VI at 295. Blair does not argue that the district court committed procedural error by failing to address certain of his arguments, and none of the personal characteristics he highlights on appeal are sufficient to rebut the presumption of reasonableness that we must apply to his within-guidelines sentence. The district court's decision to impose a sentence of ten years' imprisonment appears reasonable to us in light of all the circumstances of the case. Accordingly, we affirm Blair's prison sentence.

         B. Special Condition Violated 18 U.S.C. § 3583(d)(2)

         Blair also challenges a special condition of supervised release imposed by the district court banning his use of computers and Internet devices in the absence of permission from his parole officer. "We review the district court's decision to impose special conditions of supervised release for abuse of discretion." United States v. Wayne, 591 F.3d 1326, 1331 (10th Cir. 2010). Although district courts have broad discretion to prescribe conditions on supervised release, United States v. Hanrahan, 508 F.3d 962, 970 (10th Cir. 2007), that discretion is limited by 18 U.S.C. § 3583(d) and 18 U.S.C. § 3553(a). Read in conjunction with one another, those statutory provisions provide in relevant part that a trial court may order special conditions of supervised release so long as

(1) the conditions are reasonably related to "the nature and circumstances of the offense and the history and characteristics of the defendant," the need "to afford adequate deterrence to criminal conduct," the need "to protect the public from further crimes of the defendant," and the need "to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner," see id. §§ 3583(d)(1), 3553(a)(1), and 3553(a)(2)(B)-(D); and
(2) the conditions involve "no greater deprivation of liberty than is reasonably necessary for" deterring criminal activity, protecting the public, and promoting a defendant's rehabilitation, see id. §§ 3583(d)(2), 3553(a)(2)(B)-(D).

         Here, the district court imposed a special condition of supervised release that included the following restriction:

The defendant's use of computers and Internet access devices must be limited to those the defendant requests to use, and which ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.