United States v. Benjamin Charles Boone ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JANUARY 24, 2007
No. 06-12016 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00265-CR-WS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BENJAMIN CHARLES BOONE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(January 24, 2007)
Before ANDERSON, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Benjamin Boone appeals his 210-month sentence for possession and
distribution of child pornography, in violation of 8 U.S.C. §§ 2252A(a)(2), (b)(2)
and (a)(5)(B), and a special condition of his supervised release requiring him to
submit to polygraph testing and other assessments. Boone first argues that his
sentence is unreasonable pursuant to the factors of 18 U.S.C. § 3553(a). He further
argues that the disparity in punishment between those who view child pornography
versus those who molest children is unreasonable, and that incarceration in his case
is more harmful than helpful because there is no evidence that he poses a threat to
the community. Boone next argues that the special condition of his release
requiring him to submit to polygraph testing and other assessment instruments,
violates his Fifth Amendment privilege against self-incrimination because
polygraph testing may force him to risk revocation of his supervised release in
order to assert his privilege. Finally, Boone argues that the district court erred by
imposing 210 months’ imprisonment for each count to run concurrently, because
his second charge, possession of child pornography under § 2252A(a)(5)(B),
carried a statutory maximum sentence of ten years.
I.
Following United States v. Booker, 543 U.S. 220, 261, 125 S. Ct. 738, 765,
160 L. Ed. 2d 621 (2005), we have stated that the district court first must correctly
calculate the defendant’s guideline range. Then, using the § 3553(a) sentencing
2
factors, the court can impose a more severe or more lenient sentence, as long as it
is reasonable. United States v. Crawford, 407 F.3d 1174, 1179 (11th Cir. 2005).
The relevant § 3553(a) factors are:
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant;
(2) the need for the sentence imposed— (A) to reflect the seriousness
of the offense, to promote respect for the law, and to provide just
punishment for the offense; (B) to afford adequate deterrence to
criminal conduct; (C) to protect the public from further crimes of the
defendant; and (D) to provide the defendant with needed [treatment];
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range . . . ;
(6) the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of similar
conduct; and
(7) the need to provide restitution to any victims of the offense.
18 U.S.C. § 3553(a); Booker, 543 U.S. at 259-61, 125 S.Ct. at 764-66. There is no
requirement, however, that the district court engage in a detailed, step-by-step
analysis of every factor, as we have held that “nothing in Booker or elsewhere
requires the district court to state on the record that it has explicitly considered each
of the § 3553(a) factors or to discuss each of the § 3553(a) factors.” United States
v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005).
“Review for reasonableness is deferential.” United States v. Talley, 431 F.3d
784, 788 (11th Cir. 2005). “[T]he party who challenges the sentence bears the
burden of establishing that the sentence is unreasonable in the light of both th[e]
3
record and the factors in section 3553(a).” Id. A sentence within the advisory
guideline range is not per se reasonable, but we ordinarily expect such a sentence to
be reasonable. See id. In Scott, we held that a district court’s statement that it had
considered the § 3553(a) factors alone is sufficient in post-Booker sentences. 426
F.3d at 1329-30.
Upon review of the record and the sentencing transcripts, and upon
consideration of the briefs of the parties, we discern no reversible error as to this
issue. The district court adequately and properly considered the § 3553(a) factors,
in conjunction with Boone’s personal history, the nature of the case and the purpose
of sentencing. Therefore, the low-end sentence was reasonable.
II.
A district court’s imposition of a special condition of supervised release is
reviewed for abuse of discretion so long as the objection was preserved for appeal,
and will be reversed only if we have a “definite and firm conviction that the
[district] court committed a clear error of judgment in the conclusion it reached.”
United States v. Taylor, 338 F.3d 1280, 1283 (11th Cir. 2003) (citation omitted)
(brackets in original). Boone objected to the condition of supervised release on
Fifth Amendment grounds below, and, thus, it is preserved for appeal.
The United States Code allows the district court to impose any condition of
4
supervised release it deems appropriate so long as it comports with the factors
enumerated in § 3553(a). 18 U.S.C. § 3583(d). The Sentencing Guidelines permit
the sentencing court to impose any conditions of supervised release that are:
(1) reasonably related to (A) the nature and circumstances of the
offense and the history and characteristics of the defendant; (B) the
need for the sentence imposed to afford adequate deterrence to
criminal conduct; (C) the need to protect the public from further
crimes of the defendant; and (D) the need to provide the defendant
with . . . medical care, or other correctional treatment in the most
effective manner; and
(2) involve no greater deprivation of liberty than is reasonably
necessary for the purposes set forth above and are consistent with any
pertinent policy statements issued by the Sentencing Commission.
U.S.S.G. § 5D1.3(b). “While the Sentencing Guidelines recognize that a condition
of supervised release should not unduly restrict a defendant’s liberty, a condition is
not invalid simply because it affects a probationer’s ability to exercise
constitutionally protected rights.” United States v. Zinn, 321 F.3d 1084, 1089 (11th
Cir. 2003) (citation omitted). A state may generally require a probationer to appear
and discuss matters that affect his probationary status without violating the Fifth
Amendment. Minnesota v. Murphy, 465 U.S. 420, 435, 104 S. Ct. 1136, 1146, 79
L. Ed. 2d 409 (1984). Furthermore, we already rejected the argument that a
condition of supervised release requiring polygraph testing violates the Fifth
Amendment generally. Taylor, 338 F.3d at 1284; Zinn, 321 F.3d at 1092
A challenge to a condition of supervised release requiring polygraph testing
5
“is neither premature nor speculative” because the defendant “will be subject to the
challenged condition upon his release from prison.” Id. at 1088. Although the
condition itself is immediately appealable, “specific challenges to the
implementation” of polygraph testing may not necessarily be ripe. Id. at 1089
(emphasis in original). Thus, while the defendant retains a privilege against
self-incrimination, he does “not present a cognizable Fifth Amendment claim”
when “there has been no potentially incriminating question or invocation of the
privilege.” Id. at 1091-92. Instead, a defendant may raise his Fifth Amendment
claim “when [he] is forced to testify over his valid claim of privilege.” Id. at 1092.
The district court did not abuse its discretion in requiring polygraph testing
and other assessments as a condition of supervised release because Boone had an
admitted history of viewing and distributing child pornography, as well as a
troubled personal history. Thus, requiring polygraph testing to ensure compliance
with his probationary terms is both reasonably related to Boone’s offenses and
history, and when reasonably applied, will not unduly burden his rights.
Furthermore, Boone has not yet presented a cognizable Fifth Amendment challenge
to the condition’s implementation because he has not been released and no
potentially incriminating questions have been asked. Accordingly, we affirm as to
this issue.
6
III.
“[W]e review the legality of a sentence de novo.” United States v. Moriarty,
429 F.3d 1012, 1025 (11th Cir. 2005). In Moriarty, we vacated and remanded for
clarification where the district court imposed a general sentence that exceeded the
statutory maximum sentence for one of multiple counts because “such sentences are
per se illegal in this circuit.” Id. A defendant who is convicted of violating
§ 2252A(a)(5)(B) “shall be . . . imprisoned not more than 10 years.” 18 U.S.C.
§ 2252A(b)(2).
The maximum statutory sentence for count two, possession of child
pornography, is 10 years, see 18 U.S.C. § 2252A(b)(2), yet the district court
sentenced Boone to 210 months’ imprisonment concurrent in each case. The
government concedes, and we agree, that the district court erred in this regard.
Accordingly, we vacate and remand as to this issue.
AFFIRMED IN PART; VACATED and REMANDED IN PART.1
1
Appellant’s request for oral argument is denied.
7