United States v. Glen Sterling Carpenter ( 2015 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-13177
________________________
D.C. Docket No. 1:14-cr-20056-JAL-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GLEN STERLING CARPENTER,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(October 7, 2015)
Before MARCUS, WILLIAM PRYOR, and JILL PRYOR, Circuit Judges.
MARCUS, Circuit Judge:
Glen Sterling Carpenter appeals his sentence of 97 months of incarceration
and lifetime supervised release. In 2013, federal law enforcement authorities
detected an account sharing child pornography over the Internet, which they traced
to Carpenter. When they searched his laptop, they discovered 64 videos of child
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pornography -- many depicting minors under the age of 12, and some depicting
sadistic and masochistic conduct. Carpenter subsequently admitted that he had
been downloading child pornography for about a year. He was charged by
indictment with one count of possession of child pornography in violation of 18
U.S.C. §§ 2252(a)(4)(B), (b)(2), and eventually pled guilty. On appeal, Carpenter
argues that his sentence of 97 months in prison is procedurally and substantively
unreasonable. He also claims that his sentence of supervised release for life is
unreasonable, and that two of the special conditions of his release -- barring him
from possessing a computer or another device that can access the Internet, and
from possessing sexually explicit material involving adults -- are unreasonable as
well.
We disagree, and uphold his sentence in its entirety. As for Carpenter’s
prison sentence, the district court accurately calculated the Sentencing Guidelines
range, treated the Guidelines as advisory, provided a thorough explanation of how
it weighed the 18 U.S.C. § 3553(a) factors, and addressed Carpenter’s motion for a
downward variance at considerable length. The district court’s approach was
procedurally reasonable, and yielded a substantively reasonable result, in light of
the severity of Carpenter’s conduct. As for his sentence of supervised release,
Carpenter invited the district court to impose a life term, and cannot now complain
that the court did as he asked. Finally, he failed to make a specific and
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contemporaneous objection to the two special conditions of his supervised release,
and he cannot show that the court plainly erred in imposing those conditions. We
affirm.
I.
The basic facts and procedural history are these. On September 16, 2013,
federal law enforcement authorities detected a user on the Ares peer-to-peer
network by the name of “gcarp@ares,” who was advertising child pornography for
download. Law enforcement downloaded a video containing child pornography
from the user, and identified the IP address associated with that user name as
belonging to Carpenter at his known residence. On January 14, 2014, law
enforcement executed a search warrant at Carpenter’s home. They did not find a
computer, but did discover a receipt indicating that Carpenter had sold a Lenovo
laptop to a local pawnshop. That same day, the agents went to the pawnshop and
recovered the laptop.
A forensic search of Carpenter’s laptop revealed that it contained a vast
collection of child pornography. Specifically, the laptop contained 64 videos
depicting minors engaged in sexually explicit conduct, or 4,800 discrete images. 1
Many of the videos depicted prepubescent minors under the age of 12; some even
depicted toddlers. Three videos depicted “sadistic and masochistic” conduct.
1
One video is considered to contain 75 images. See U.S.S.G. § 2G2.2 n.4(B)(ii).
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Nineteen of the videos ranged from 10 to 44 minutes in length. The record
contains specific details of several of the videos:
1. A video depicting an adult male engaging in vaginal intercourse
with a minor female who is kneeling face down on a bed.
2. A video depicting different images of adult males vaginally
penetrating female toddlers. One female toddler is tied at the
ankles and around the back of her neck as she is bent over a bed.
3. A video depicting an adult male engaged in vaginal and anal
intercourse with a female under the age of 18.
4. A video depicting an adult male performing oral sex on a female
under 18 and penetrating the female’s anus with his finger.
The laptop also contained 45 videos depicting adult pornography, as well as 2
videos where the ages of the subjects could not be determined.
Carpenter waived his Miranda rights, and subsequently confessed to
downloading and possessing child pornography on his laptop. Specifically, he
admitted to downloading child pornography for about a year, and explained that he
used search terms such as “kiddy porn” to locate the videos. He also said that he
attempted to masturbate while viewing the videos, but was unable to do so, that he
felt bad for the children depicted in the videos, that he had an attraction to children,
and that he needed help with his problem of viewing child pornography.
On January 30, 2014, Carpenter was charged by a federal grand jury sitting
in the Southern District of Florida with one count of possession of child
pornography in violation of 18 U.S.C. §§ 2252(a)(4)(B), (b)(2). He eventually
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pled guilty to the charged offense without a plea agreement in a change of plea
hearing on March 11. At the hearing, the district court conducted a plea colloquy
in which Carpenter confirmed that he understood the rights he was waiving by
pleading guilty and the penalties he faced. In particular, Carpenter understood that
he was subject to a term of up to 20 years of imprisonment, as well as a term of
supervised release ranging from 5 years to life. Carpenter acknowledged that the
court would consider all the sentencing factors provided by law, including the
Guidelines, and that the court would impose a sentence it deemed appropriate. The
prosecutor also made a factual proffer at the hearing, to which Carpenter assented.
The court, finding that Carpenter was competent to plead, that his guilty plea was
knowing and voluntary, and that it was supported by an adequate factual basis,
accepted his plea and adjudged him guilty as charged.
The presentence investigation report (“PSI”) calculated Carpenter’s
Guidelines range this way. His base offense level was 18. U.S.S.G. § 2G2.2(a)(1).
He received a 2-level enhancement because the offense involved material depicting
a minor below the age of 12, id. § 2G2.2(b)(2); 2 levels because the offense
involved distribution, id. § 2G2.2(b)(3)(F); 4 levels because the offense involved
material depicting sadistic or masochistic conduct, id. § 2G2.2(b)(4); 2 levels
because the offense involved the use of a computer, id. § 2G2.2(b)(6); and 5 levels
because the offense involved 600 or more images, id. § 2G2.2(b)(7)(D). He
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received a 3-level reduction for acceptance of responsibility. Carpenter’s total
offense level was 30, so with a criminal history category of I, his Guidelines range
was 97 to 121 months of imprisonment. The maximum statutory penalty was 20
years, followed by a term of supervised release from 5 years to life. 18 U.S.C. §§
2252(b)(2), 3583(k); U.S.S.G. § 5D1.2(b)(2). The PSI also noted that a factor
potentially meriting an upward departure, pursuant to U.S.S.G. § 2G2.2 n.4(B)(ii),
was that Carpenter possessed a visual depiction over 5 minutes, since 19 of the
videos on Carpenter’s laptop ranged from 10 to 44 minutes in duration.
The PSI revealed several details about Carpenter’s life and personal
characteristics. Carpenter was born in 1955, rendering him 58 at the time of
sentencing. According to Carpenter, his mother was an alcoholic, and married a
man who was physically abusive toward Carpenter, his mother, and his siblings.
He denied experiencing any sexual or psychological abuse. He admitted a history
of substance abuse, namely heroin. The PSI also recommended a number of
conditions of supervised release, including the two conditions Carpenter challenges
in this case:
1. Computer Possession Restriction: The defendant shall not possess
or use any computer; except that the defendant may, with the prior
approval of the Court, use a computer in connection with
authorized employment.
2. Restricted from Possession of Sexual Materials: The defendant
shall not buy, sell, exchange, possess, trade, or produce visual
depictions of minors or adults engaged in sexually explicit
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conduct. The defendant shall not correspond or communicate in
person, by mail, telephone, or computer, with individuals or
companies offering to buy, sell, trade, exchange, or produce visual
depictions of minors or adults engaged in sexually explicit
conduct.
Carpenter made no objection to the PSI, nor to any of the listed conditions.
Carpenter did, however, request a downward variance in a sentencing
memorandum. Specifically, he asked for a sentence of 56 months, and argued that
a December 2012 report by the United States Sentencing Commission (“the
Report”) had determined that the Sentencing Guidelines for child pornography
cases, found in U.S.S.G. § 2G2.2, were flawed. Carpenter argued, citing the
Report, that the § 2G2.2 enhancements are outdated because they apply in nearly
every case, and yield Guidelines sentences higher than in cases involving sexual
contact with minors. He noted that, in response, courts have typically varied
downward, and imposed Guidelines-range sentences in only 27.3 percent of cases.
Carpenter also cited several cases in the United States District Court for the
Southern District of Florida where defendants had received downward variances
despite allegedly engaging in more serious conduct than himself. He closed by
arguing that a 56 month sentence would adequately take into account his individual
characteristics, as well as the flaws in the Sentencing Guidelines.
At the sentencing hearing, held on July 7, 2014, the district court took
argument on Carpenter’s motion for a downward variance and, ultimately, the
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appropriate sentence. Defense counsel argued that, in the Sentencing
Commission’s “own words,” the Guidelines were “outdated and produce[d]
disproportionate sentencings.” Counsel reiterated that courts have tended to
downwardly vary. Counsel also presented several mitigating factors: Carpenter’s
abuse at the hands of his stepfather, his history of substance abuse, the fact that he
did not have “a long history” of downloading child pornography, and the fact that
his offense conduct began at the time of an alleged relapse. Counsel requested a
sentence of 56 months, “as well as lifetime supervised release,” which would mean
that Carpenter would “always have the resources that Probation has to offer in
terms of counseling and therapy, which has not been the case with his drug
addiction.” Before finishing her presentation, counsel again argued that “a
sentence of 56 months would sufficiently serve the purposes of
punishment . . . [and] would safeguard the public by placing [Carpenter] on
supervised release for life.” Carpenter himself then stated that it was his “wish that
the BOP place [him] in a facility where [he] [could] get that help that [he]
desperately need[ed].”
The prosecutor then responded to defense counsel’s arguments.
Specifically, he argued that the “whole concept of empirical studies” is not “very
valid,” and “serve[d] as a distraction.” He referred to our decision in United States
v. Cubero, in which we held that the Report “[did] not change the statutory
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sentencing scheme, the applicable sentencing guidelines, or the binding precedent
about § 2G2.2 in this Circuit.” 754 F.3d 888, 900 (11th Cir.), cert. denied, 135 S.
Ct. 764 (2014). The prosecutor also observed that a number of the § 2G2.2
enhancements did not apply in Carpenter’s case, contrary to Carpenter’s claim that
the enhancements typically apply across the board. While he opposed Carpenter’s
request for a downward variance, he agreed that “Mr. Carpenter’s background and
his seemingly genuine desire to get help” were “compelling arguments for
leniency,” and recommended a sentence at the low end of the Guidelines range.
The district court then pronounced the sentence. It began by acknowledging
that it was obliged to “consult the guidelines, take them into account, but [was] not
bound by them,” and that it had to look to the “factors under [§ 3553(a)] to
determine whether they support the requested sentence.” The court first
considered “the nature and circumstances of the offense and the history and
characteristics of [Carpenter].” It observed that the 64 videos possessed by
Carpenter generated 4,800 distinct images -- eight times the 600 images necessary
to qualify for the maximum enhancement under U.S.S.G. § 2G2.2(b)(7) -- and that
three of those videos “depicted minors engaged in sadistic and masochistic
conduct.” The court also referred to the mitigating evidence presented by
Carpenter: that Carpenter “ha[d] one prior criminal history point; ha[d] a drug
problem; and . . . was subjected to physical abuse by his stepfather.” The court
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then acknowledged “the need for the sentence imposed to reflect the seriousness of
the offense, to promote respect for the law, provide just punishment . . . , [and]
afford adequate deterrence[,] . . . the need to protect the public from further crimes
of the Defendant, . . . [and] the need to avoid unwarranted sentencing disparities.”
In light of the seriousness of Carpenter’s offense, the trial court determined
that a sentence of 56 months would not meet “the requirements of [§] 3553(a).”
While the court agreed that it could consider the criticisms of the Guidelines
advanced in the Sentencing Commission’s Report, it determined that it was not
bound by them, and denied Carpenter’s request for a downward variance. Instead,
it imposed a 97 month sentence “at the lowest end of the advisory guideline
range.” It also imposed a life term of supervised release upon Carpenter’s release
from incarceration. That sentence included the two conditions recommended by
the PSI, prohibiting Carpenter from possessing a computer, except in connection
with employment with prior court approval, or adult pornography. It also
stipulated that “[t]he computer restrictions . . . shall also apply to any smartphone
or any other access device.” The court then asked if either party had any
objections, and defense counsel replied: “In order to preserve Mr. Carpenter’s
appellate rights, I would object to the substantive and procedural reasonableness of
the sentence.” The court’s judgment was entered on July 10, 2014.
This timely appeal followed.
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II.
Carpenter first argues that his sentence of 97 months of imprisonment is
unreasonable, an objection he preserved before the district court. On appeal, he
bears the burden to show that his sentence is unreasonable. United States v. Tome,
611 F.3d 1371, 1378 (11th Cir. 2010). We assess the reasonableness of a sentence
in two steps. First, we ask whether the sentencing court “committed any
significant procedural error, such as miscalculating the advisory guidelines range,
treating the guidelines as mandatory, failing to consider the 18 U.S.C. § 3553(a)
factors, selecting a sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence.” Cubero, 754 F.3d at 892. Second, “we
examine whether the sentence is substantively unreasonable under the totality of
the circumstances and in light of the § 3553(a) factors.” Id. On this record, we
conclude that Carpenter’s prison sentence is both procedurally and substantively
reasonable.
A.
We begin by considering whether the district court committed any
procedural error in fashioning or explaining Carpenter’s sentence. The answer is
no. When pronouncing a defendant’s sentence, the court need only “set forth
enough to satisfy the appellate court that he has considered the parties’ arguments
and has a reasoned basis for exercising his own legal decisionmaking authority.”
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Rita v. United States, 551 U.S. 338, 356 (2007). In particular, “[a] sentencing
court is not required to incant the specific language used in the guidelines or
articulate its consideration of each individual § 3553(a) factor, so long as the
record reflects the court’s consideration of many of those factors.” United States v.
Ghertler, 605 F.3d 1256, 1262 (11th Cir. 2010) (citation and internal quotation
marks omitted). Nor must the court respond in detail to every argument presented
by the defendant; after all, “[t]he appropriateness of brevity or length, conciseness
or detail, when to write, what to say, depends upon circumstances.” Rita, 551 U.S.
at 356. “Where the defendant or prosecutor presents nonfrivolous reasons for
imposing a different sentence, however, the judge will normally go further and
explain why he has rejected those arguments.” Id. at 357.
As we see it, the district court’s explanation of its sentence was beyond
sufficient. Indeed, it spanned over seven pages of transcript. The court expressly
acknowledged that the Guidelines are merely advisory, and that it had to look to
the “factors under [§ 3553(a)] to determine whether they support the requested
sentence.” The court then provided a thorough account of how it applied the
§ 3553(a) factors. First, the court considered “the nature and circumstances of the
offense and the history and characteristics of [Carpenter].” See 18 U.S.C.
§ 3553(a)(1). It observed that Carpenter possessed at least one video depicting the
rape of female toddlers, one of whom “was tied at the ankles and neck”; that many
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of the videos ranged from 10 to 44 minutes in length; that he possessed 4,800
images, or eight times the 600 images needed to qualify for a 5-level enhancement
under § 2G2.2(b)(7) of the Guidelines; that he had been downloading child
pornography for a year; and that three of the videos “depicted minors engaged in
sadistic and masochistic conduct.” Yet the court also acknowledged, as mitigation,
that Carpenter had been “physically abused” and had a drug problem. In light of
the severity of Carpenter’s offense, and “[i]n order to promote respect for the law,
to provide just punishment and certainly to afford adequate deterrence,” see id.
§ 3553(a)(2), the court concluded that 97 months, “a sentence at the lowest end of
the advisory guideline range,” would be appropriate.
Carpenter argues, however, that the district court failed to consider a number
of factors: his personal history and characteristics, the need for educational training
and medical treatment, and the importance of avoiding unwarranted sentencing
disparities. We are unpersuaded on all fronts. For starters, the district court was
not even required to “articulate its consideration of each individual § 3553(a)
factor.” Ghertler, 605 F.3d at 1262 (citation and internal quotation marks omitted).
Yet it did, and at some length. Indeed, the court referenced Carpenter’s personal
characteristics, including his drug problem and the fact that he was a victim of
physical abuse, in fashioning his ultimate sentence. The court likewise gave due
consideration to these factors in sentencing Carpenter to lifetime supervised release
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with a requirement that he “participate in an approved inpatient or outpatient
mental health treatment program.” Finally, the court expressly acknowledged “the
need to avoid unwarranted sentencing disparities,” and concluded that the severity
of Carpenter’s offense provided ample support for the sentence it was imposing.
We discern no procedural error in the court’s application of the § 3553(a) factors.
Nor are we convinced that the district court treated the Guidelines as
presumptively reasonable. The Supreme Court held in Nelson v. United States that
district courts may not apply a “presumption of reasonableness” to the Guidelines
range. 555 U.S. 350, 352 (2009) (per curiam). However, nothing in the record
before us indicates that the district court applied such a presumption. Unlike in
Nelson, the court in this case did not state that “the Guidelines are considered
presumptively reasonable.” Id. at 350-51. To the contrary, the court expressly
noted that the Guidelines are advisory, and conducted a thorough analysis of the
§ 3553(a) factors. Carpenter directs our attention to a single statement made by the
court while questioning defense counsel that the Sentencing Commission’s Report
had “been there since 2012. It’s now 2014.” This isolated and out-of-context
statement, in which the court was simply presenting a response to counsel’s
argument, is far too slender a reed to suggest that the court treated the Guidelines
as presumptively reasonable. To the contrary, the record reflects that the court
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carefully and thoughtfully grappled with Carpenter’s argument against a
Guidelines sentence, and ultimately rejected it.
Finally, Carpenter argues that he presented a nonfrivolous argument for a
downward variance, based on the Sentencing Commission’s Report, and was
entitled to a more extensive explanation than the district court gave for rejecting it.
The court, however, explained why it rejected Carpenter’s request in considerable
detail. The court cited our decision in Cubero, in which we held that the Report
“does not render the non-production child pornography Guidelines in § 2G2.2
invalid or illegitimate.” 754 F.3d at 900. Applying Cubero, the court correctly
reasoned that “while a district court may certainly consider [the Report], in
choosing the ultimate sentence, the [R]eport does not invalidate [§] 2G2.2.” In the
end, however, the court concluded that in light of the severity of Carpenter’s crime,
a sentence of 56 months would not “meet[] the requirements of [§] 3553(a).” If
any doubt remained as to whether the court’s explanation was adequate, we also
said in Cubero that the Report “does not heighten the district court’s statutory duty
to state the reasons for imposing a particular sentence.” 753 F.3d at 901. The
district court was not obliged to give any more explanation than it did. Thus, we
discern no procedural error in the court’s sentence, its explanation thereof, or its
decision not to vary.
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B.
Carpenter’s 97-month sentence is also substantively reasonable. We review
“the substantive reasonableness of the sentence imposed under an abuse-of-
discretion standard.” Gall v. United States, 552 U.S. 38, 51 (2007). Abuse-of-
discretion review “allows a range of choice for the district court, so long as that
choice does not constitute a clear error of judgment.” United States v. Irey, 612
F.3d 1160, 1189 (11th Cir. 2010) (en banc) (citation and internal quotation marks
omitted). This deferential standard “appreciate[s] the institutional advantage that
district courts have in applying and weighing the [§] 3553(a) factors in individual
cases.” United States v. Pugh, 515 F.3d 1179, 1190-91 (11th Cir. 2008). Of
course, the district court’s discretion is not “unbridled,” for “looking at sentencing
decisions through the prism of discretion is not the same thing as turning a blind
eye to unreasonable ones.” United States v. McQueen, 727 F.3d 1144, 1156 (11th
Cir. 2013) (citation and internal quotation marks omitted and alteration adopted).
In particular, “[a] district court abuses its discretion when it (1) fails to
afford consideration to relevant factors that were due significant weight, (2) gives
significant weight to an improper or irrelevant factor, or (3) commits a clear error
of judgment in considering the proper factors.” Irey, 612 F.3d at 1189 (citation
and internal quotation marks omitted). However, “this Court will not substitute its
judgment in weighing the relevant factors.” United States v. Dougherty, 754 F.3d
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1353, 1361 (11th Cir. 2014), cert. denied, 135 S. Ct. 1186 (2015). Ultimately, we
may only vacate a defendant’s sentence “if we are left with the definite and firm
conviction that the district court committed a clear error of judgment in weighing
the § 3553(a) factors by arriving at a sentence that lies outside the range of
reasonable sentences dictated by the facts of the case.” United States v. McBride,
511 F.3d 1293, 1297-98 (11th Cir. 2007) (per curiam) (citation and internal
quotation marks omitted).
The district court did not abuse its considerable discretion in sentencing
Carpenter to 97 months of imprisonment. At the outset, we note that Carpenter’s
sentence is at the very bottom of the advisory Guidelines range of 97 to 121
months, and is less than half of the statutory maximum of 240 months, two factors
which indicate reasonableness. Cubero, 754 F.3d at 898. And it is lower than the
sentences received by other defendants convicted of possession of child
pornography. See, e.g., United States v. Cuellar, No. 14-12369, 2015 WL
3827671, at *1 (11th Cir. June 22, 2015) (upholding a 210 month Guidelines
sentence where the district court declined to downwardly vary). Moreover, we
have emphasized the seriousness of child pornography offenses, and the harm they
inflict on their victims, time and again. See, e.g., United States v. Wayerski, 624
F.3d 1342, 1354 (11th Cir. 2010) (“Those who receive and exchange child
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pornography create a demand that influences the production of the pornography
and the attendant physical and emotional injury to children.”).
As we see it, the facts of this case fully support the sentence pronounced by
the district court. As we’ve explained, Carpenter possessed 4,800 images,
contained in 64 videos, depicting minors involved in sexually explicit conduct --
eight times the number of images required to qualify for the maximum
enhancement under the Sentencing Guidelines. U.S.S.G. § 2G2.2(b)(7).
Nineteen of the videos found on Carpenter’s laptop ranged from 10 to 44 minutes
in duration, or two to nine times the five minutes contemplated by the Guidelines,
a factor which could well have served as cause for an upward departure. Id.
§ 2G2.2 n.4(B)(ii). At least three of the videos depicted sadistic and masochistic
conduct. To take just one particularly disturbing example, Carpenter possessed a
video depicting several instances of adult males sexually assaulting female
toddlers, one of whom was tied at the ankles and neck. In light of these undisputed
facts, the district court imposed a within-Guidelines sentence calculated to
“reflect[] the seriousness of the offense.” Yet the district court also weighed
Carpenter’s mitigation -- his history of physical abuse and his drug problem -- in
giving him a sentence at the low end of the Guidelines range. On this record, we
cannot say that the district court committed any clear error in judgment.
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Nor did the district court abuse its discretion in denying Carpenter’s request
for a downward variance. Before the district court, Carpenter presented his
argument as a challenge to the Guidelines themselves, based on the Sentencing
Commission’s Report. This argument is a non-starter. As we explained in Cubero,
the Report “does not render the non-production child pornography guidelines in §
2G2.2 invalid or illegitimate.” 754 F.3d at 900. While the district court in the
instant case “was empowered with discretion” to grant a downward variance, it
was not obliged to do so. Id. In light of the severity of Carpenter’s conduct, we
cannot say that it abused that discretion.
On appeal, Carpenter presents a slightly different formulation of his
argument, claiming that his position has never been that the Report “invalidated”
the § 2G2.2 Guidelines. Instead, he argues that 97 months is too harsh for him, “a
first time offender in a mine-run non-production case that never had inappropriate
sexual contact with a minor,” and that courts in similar cases have granted
downward variances. The defendant in Cubero made the same argument. See
Cubero, 754 F.3d at 899-900 (“Cubero stresses that the 2013 [R]eport validates his
argument at sentencing that the § 2G2.2 guidelines are overly severe for his ‘mine-
run, first-offender, no-contact case.’”). Carpenter’s argument fails for the same
reason. The district court could, and did, consider the fact that other courts have
granted downward variances, as well as the need to avoid sentencing disparities, in
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evaluating Carpenter’s request. But it also reasonably concluded that the facts of
Carpenter’s case did not merit a downward variance. Moreover, Carpenter fails to
account for the variety of reasons why district courts may have granted variances
in these other cases, such as the government agreeing to the downward variance or
the offender’s Guidelines range being much higher than Carpenter’s range. We
will not substitute our own judgment in weighing these factors for that of the
district court. Dougherty, 754 F.3d at 1361. Carpenter’s sentence is substantively
reasonable.
III.
Carpenter also challenges several aspects of the district court’s decision to
sentence him to lifetime supervised release. First, Carpenter objects to the life
term. Second, he objects to two of the special conditions that the court imposed.
Each of these challenges fails as well.
A.
Carpenter claims that the court automatically sentenced him to lifetime
supervision without any consideration of the circumstances of his case, and that a
life term was not warranted without some showing that he had abused children.
Carpenter, however, cannot complain about the life term of his supervised release
because he expressly requested that the district court sentence him to a life term,
and thereby invited any error the court may have made in doing so. It is by now “a
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cardinal rule of appellate review that a party may not challenge as error a ruling or
other trial proceeding invited by that party.” United States v. Silvestri, 409 F.3d
1311, 1327 (11th Cir. 2005) (citation and internal quotation marks omitted). The
invited error doctrine “stems from the common sense view that where a party
invites the trial court to commit error, he cannot later cry foul on appeal.” United
States v. Brannan, 562 F.3d 1300, 1306 (11th Cir. 2009). Thus, where one party
has induced or invited error, we may not invoke the plain error rule to reverse the
district court’s judgment. Silvestri, 409 F.3d at 1327. As we see it, Carpenter
invited the sentencing court’s decision to impose a life term of supervision.
Indeed, this case is strikingly similar to United States v. Love, in which we
held that a defendant could not challenge his supervised release on appeal after
asking the district court to impose such a sentence. 449 F.3d 1154, 1157 (11th Cir.
2006) (per curiam). During sentencing, the defendant in Love “repeatedly
requested the court impose a sentence of time served followed by a term of
supervised release.” Id. at 1155. The court, however, refused to sentence him to
time served, and instead sentenced him to 45 days of imprisonment, followed by
five years of supervised release. Id. at 1155-56. On appeal, the defendant argued
that the statute under which he was convicted did not authorize supervised release,
and alternatively, that the maximum term of supervision he could receive was one
year. Id. at 1156. We did not reach the merits of his claims because we concluded
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that he had invited error by requesting that the court impose supervised release,
and he was, therefore, “precluded” from challenging that decision on appeal. Id. at
1157.
Like the defendant in Love, Carpenter may not challenge his lifetime
supervision because he repeatedly asked the court to impose a life term. Thus,
during sentencing, defense counsel opined that she thought “a sentence . . . of 56
months . . . , as well as lifetime supervised release” would be appropriate. Indeed,
she extolled the virtues of supervised release for life: “[W]hat that would mean for
[Carpenter] is that he will always have the resources that Probation has to offer in
terms of counseling and therapy, which has not been the case with his drug
addiction.” Counsel observed that Carpenter had only been able to access
treatment in the past by “cobbl[ing] together his own benefits.” And counsel also
averred that lifetime supervised release “would safeguard the public.” The court
took these statements into account and “agree[d] that a sentence of supervised
release for life is . . . appropriate.” On this record, it is clear that Carpenter not
only asked for supervised release, but affirmatively argued in favor of a life term
given his need for treatment and close supervision. By doing so, he invited any
error the court may have made in imposing the life term.
Carpenter claims, however, that he only agreed to lifetime supervision to
encourage the court to grant his requested downward variance. However, his
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argument cannot be squared with what his attorney actually said at the sentencing
hearing. As we’ve explained, counsel argued for a life term of supervised release
in its own right, claiming that it would mean that Carpenter would “always” have
access to therapy, and that it would help to safeguard the public. Counsel did not
say that a life term of supervised release was appropriate only if the court decided
to give Carpenter a downward variance. Such a claim would have been utterly
unconvincing, because whether or not Carpenter received 56 months or 97 months
in prison would have had no bearing on his subsequent need for supervision and
treatment upon his release.
Moreover, even if Carpenter’s request for lifetime supervision was meant to
induce the court to sentence him to a shorter prison term, “a criminal defendant
may not make an affirmative, apparently strategic decision at trial and then
complain on appeal that the result of that decision constitutes reversible error.”
United States v. Jernigan, 341 F.3d 1273, 1290 (11th Cir. 2003). Indeed, “[t]his is
precisely the situation that the invited error doctrine seeks to avert.” Id. After all,
Carpenter made essentially the same choice as the defendant made in Love: to ask
for supervised release “in lieu of additional jail time.” Love, 449 F.3d at 1157.
Carpenter cannot “cry foul on appeal,” Brannan, 562 F.3d at 1306, simply because
his strategy may have backfired.
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B.
Next, we consider Carpenter’s challenges to two of the special conditions of
his supervised release: that he not possess or use a computer, except in connection
with employment as approved by the district court, or another access device, and
that he not possess sexually explicit material involving adults. Carpenter did not
make a specific and contemporaneous objection to either condition, and so our
review is for plain error. Even if we were to assume that the district court
committed some error in imposing these conditions, no binding authority
established that the error was plain.
Generally, “[w]e review the imposition of special conditions of supervised
release for abuse of discretion.” United States v. Moran, 573 F.3d 1132, 1137
(11th Cir. 2009). “Where a defendant fails to clearly state the grounds for an
objection in the district court, however, he waives the objection on appeal and we
are limited to reviewing for plain error.” United States v. Zinn, 321 F.3d 1084,
1087 (11th Cir. 2003). Specifically, a defendant must “articulate the specific
nature of his objection to a condition of supervised release so that the district court
may reasonably have an opportunity to consider it.” Id. at 1090 n.7.2 And he must
2
Carpenter argues that our holding in Zinn is outdated in light of United States v. Booker, 543
U.S. 220 (2005), and its progeny, and suggests that a defendant today need only object to the
reasonableness of his sentence as a whole. However, Booker has no bearing on the specificity
with which a defendant must object to particular components of his sentence. In several cases
since Booker, we have reiterated that a defendant must specifically object to the conditions of
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do so in a manner “sufficient to apprise the trial court and the opposing party of the
particular grounds upon which appellate relief will later be sought.” United States
v. Straub, 508 F.3d 1003, 1011 (11th Cir. 2007) (citation and internal quotation
marks omitted). A sweeping, general objection is insufficient to preserve specific
sentencing issues for review. United States v. Gonsalves, 121 F.3d 1416, 1420-21
(11th Cir. 1997).
Before the district court, Carpenter never once objected to the special
conditions barring him from possessing a computer, access device, or adult
pornography. The presentence investigation report expressly recommended that
the district court impose the conditions barring him from possessing a computer or
pornography, but Carpenter made no objection when the PSI was made available to
him. When Carpenter filed a sentencing memorandum in advance of the hearing,
that filing also made no mention of these two conditions. Then, at the hearing,
neither Carpenter nor his counsel said a word about the conditions. Indeed, as
we’ve explained, counsel specifically requested a term of supervised release. The
district court imposed the requested sentence, and recited the conditions of
Carpenter’s supervision in copious detail, including the challenged conditions.
Afterwards, the court asked if Carpenter had any objections, and counsel said only
supervision that he seeks to challenge on appeal. See, e.g., Moran, 573 F.3d at 1137; United
States v. Nash, 438 F.3d 1302, 1304 (11th Cir. 2006) (per curiam).
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this: “In order to preserve Mr. Carpenter’s appellate rights, I would object to the
substantive and procedural reasonableness of the sentence.” This abstract and
general objection did not inform the district court of Carpenter’s specific
objections to the conditions of his supervised release, and Carpenter thereby
deprived the court of the opportunity to consider (and if necessary correct) them.
Thus, we may only review the conditions for plain error.
We exercise plain error review “sparingly, and only in those circumstances
in which a miscarriage of justice would otherwise result.” United States v.
Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005) (citations and internal quotation
marks omitted). We may only reverse the district court on the basis of plain error
if we find four things: “First, there must be an error. Second, the error must be
plain. Third, the error must affect substantial rights of the defendant. Fourth, the
error must seriously affect the fairness, integrity, or public reputation of a judicial
proceeding.” United States v. Humphrey, 164 F.3d 585, 588 n.3 (11th Cir. 1999).
To show error, Carpenter must show that the district court abused its discretion in
imposing the challenged conditions. The district court must consider whether each
condition (1) “is reasonably related to [the § 3553(a) factors]”; (2) “involves no
greater deprivation of liberty than is reasonably necessary” to serve the purposes of
punishment specified in § 3553(a)(2); and (3) “is consistent with any pertinent
policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3583(d).
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And the district court “must consider the history and characteristics of the
defendant, provide both adequate punishment and rehabilitation of the defendant,
and protect society at large.” Moran, 573 F.3d at 1139. Importantly, “a condition
is not invalid simply because it affects a probationer’s ability to exercise
constitutionally protected rights.” Zinn, 321 F.3d at 1089.
To show plain error, Carpenter must show “an error that is obvious and is
clear under current law.” Humphrey, 164 F.3d at 588 (citation and internal
quotation marks omitted). “[W]here neither the Supreme Court nor this Court has
ever resolved an issue, and other circuits are split on it, there can be no plain error
in regard to that issue.” United States v. Aguillard, 217 F.3d 1319, 1321 (11th Cir.
2000) (per curiam). In other words, Carpenter must show that some controlling
authority clearly established that the court erred in imposing the challenged
conditions. He cannot. Therefore, we need not, and do not, decide whether the
court indeed erred, nor whether Carpenter can meet the other requirements of plain
error review.
1.
The first condition Carpenter challenges is the condition stipulating that he
“shall not possess or use any computer or access device; except that [he] may, with
the prior approval of the [district court], use a computer in connection with
authorized employment.” We discern no plain error in the district court’s
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imposition of this condition. Carpenter’s crime was a sex offense involving the
use of a computer, and so the Guidelines expressly recommended a condition
limiting his computer access. U.S.S.G. § 5D1.3(d)(7)(B); id. § 5D1.2 n.1.
Carpenter does not point to a single decision of the Supreme Court or this Court
invalidating such a condition on facts similar to this case, and we have been unable
to find any.
To the contrary, our cases have uniformly upheld conditions prohibiting
defendants convicted of sex offenses from accessing a computer or the Internet for
the duration of their supervised release. Thus, for example, in United States v.
Zinn, we upheld a condition stipulating that a defendant convicted of possessing
child pornography “shall not possess or use a computer with access to any on-line
service at any location, including employment, without written approval from the
probation officer.” 321 F.3d at 1087. At the outset, we noted “the strong link
between child pornography and the Internet, and the need to protect the public,
particularly children, from sex offenders.” Id. at 1092. While we agreed that “the
Internet has become an important resource,” we emphasized “the concomitant
dangers of the Internet and the need to protect both the public and sex offenders
themselves from its potential abuses.” Id. at 1093. We also found the condition at
issue to be narrowly tailored because the defendant could still “use the Internet for
valid purposes by obtaining his probation officer’s prior permission.” Id. Thus,
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we concluded that the district court did not abuse its discretion in imposing the
condition. Id. In every case since Zinn, we have upheld conditions limiting
computer access, emphasizing that such access could well enable a sex offender to
offend once again. See, e.g., Tome, 611 F.3d at 1375-78; Moran, 573 F.3d at
1140-41; United States v. Taylor, 338 F.3d 1280, 1284-85 (11th Cir. 2003) (per
curiam).
Carpenter argues that the condition imposed in his case differs in two ways
from the conditions we have previously upheld: first, it extends for the duration of
his supervised release, i.e. life, and second, it prohibits any computer usage outside
the context of employment. Neither difference establishes that the district court
plainly erred. For starters, no case of the Supreme Court or this Court says that a
condition like this one cannot be imposed. Without such a case, there is no
precedent directly resolving Carpenter’s claim in his favor, and there can be no
plain error. Moreover, to the extent that the duration of the condition makes a
difference, we reiterate that Carpenter invited the court to impose a life term, and
he may not disavow that decision on appeal. As for the broad scope of the
condition, the district court possessed significant discretion to tailor it to the facts
of Carpenter’s case. We see no plain error in the way the court exercised that
discretion.
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Carpenter also directs our attention to cases from other courts invalidating
prohibitions on computer usage. To be sure, at least one of our sister circuits has
struck down a condition barring computer access for life with no exceptions. See
United States v. Voelker, 489 F.3d 139, 144-45 (3d Cir. 2007). But the condition
in the instant case is meaningfully different, because it allows an exception for
employment. Cf. id. at 145 (characterizing the challenged condition as “all-
encompassing, severe, and permanent”). Moreover, other courts have upheld
conditions limiting computer access for life. See, e.g., United States v. Morais,
670 F.3d 889, 896 (8th Cir. 2012) (upholding a lifetime restriction where the
defendant had used the Internet “to obtain thousands of images of child
pornography”); United States v. Daniels, 541 F.3d 915, 924 (9th Cir. 2008)
(upholding a lifetime restriction where the defendant assented to the condition
knowing a life term could be imposed); see also United States v. Miller, 665 F.3d
114, 132 (5th Cir. 2011) (upholding a twenty-five year restriction). In light of this
disagreement among the circuits, any error the district court may have made was
not an obvious or clear one. See Aguillard, 217 F.3d at 1321. We, therefore,
conclude that the district court committed no plain error in imposing the condition
limiting Carpenter’s computer access.3
3
However, we do not decide whether imposing such a condition on facts similar to this case
would constitute an abuse of discretion where a defendant specifically objects to the condition
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2.
Finally, Carpenter challenges the condition requiring him not to “buy, sell,
exchange, possess, trade, or produce visual depictions of minors or adults engaged
in sexually explicit conduct.” He claims that the condition is unduly restrictive
because it bars him from possessing legal, adult pornography. This argument fails
as well on plain error review, because Carpenter does not cite to any binding
authority holding that a restriction on possessing all forms of pornography is
substantively unreasonable. There is no Supreme Court precedent establishing that
such a condition is impermissible. Nor has this Court reached such a conclusion,
as Carpenter himself admits.
Carpenter again refers to several cases from our sister circuits, this time
invalidating prohibitions on possessing adult pornography. These cases are readily
distinguished. Thus, for example, in United States v. Perazza-Mercado, the First
Circuit found “no suggestion in the [PSI] or at sentencing that [the defendant] had
abused or even possessed pornography in the past.” 553 F.3d 65, 76 (1st Cir.
2009). Here, of course, the record furnishes ample support for that conclusion.
United States v. Voelker, a case in the Third Circuit, did not involve plain error
review, and struck the prohibition down in light of existing Third Circuit
precedent. 489 F.3d at 155. Two other cases -- United States v. Stoterau, 524 F.3d
during sentencing.
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988, 1002-03 (9th Cir. 2008), and United States v. Loy, 237 F.3d 251, 267 (3d Cir.
2001) -- held only that the term “pornography,” a term not found in the condition
here, was unconstitutionally vague. Moreover, several other cases involving child
pornography offenders have upheld prohibitions on the possession of adult
pornography. See, e.g., United States v. Rearden, 349 F.3d 608, 620 (9th Cir.
2003) (“[T]he court did not plainly err in limiting [the defendant’s] possession of
materials depicting sexually explicit conduct because the condition furthered the
goals of rehabilitating him and protecting the public.”); United States v. Ristine,
335 F.3d 692, 694-95 (8th Cir. 2003) (“[T]he ban on pornography is appropriately
tailored to serve its dual purposes of promoting [the defendant’s] rehabilitation and
protecting children from exploitation.”). Once more, we are faced with an open
question of law, upon which the circuits are split -- which means there can be no
plain error. Accordingly, we reject this challenge as well. 4
4
Finally, we observe that the terms of Carpenter’s supervised release are not written in stone. He
may, as counsel for the United States readily conceded at oral argument, petition the district
court to revise the conditions of supervised release or, after serving at least one year of
supervised release, petition the district court to shorten or terminate his supervised release. 18
U.S.C. § 3583(e)(1), (2). Indeed, a district court may reduce the conditions of supervised release
pursuant to the “provisions applicable to the initial setting of the terms and conditions of post-
release supervision.” Id. § 3583(e)(2). And a district court may shorten the term of supervised
release “if it is satisfied that such action is warranted by the conduct of the defendant released
and the interest of justice.” Id. § 3583(e)(1).
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IV.
In sum, we conclude: (1) Carpenter’s sentence of incarceration is neither
procedurally nor substantively unreasonable; (2) Carpenter invited any error the
district court may have made in sentencing him to a life term of supervised release;
and (3) Carpenter failed to object to the conditions of his supervised release during
sentencing, and he can show no plain error in the conditions the district court
imposed. Thus, we affirm the district court’s judgment in its entirety.
AFFIRMED.
33