United States v. Smathers ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4091
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ISAAC LEE SMATHERS, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Thomas David Schroeder,
District Judge. (1:08-cr-00327-TDS-1)
Submitted: November 2, 2009 Decided: November 13, 2009
Before MICHAEL, GREGORY, and DUNCAN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Benjamin D. Porter, MORROW ALEXANDER PORTER & WHITLEY, PLLC,
Winston-Salem, North Carolina, for Appellant. Anna Mills
Wagoner, United States Attorney, Michael A. DeFranco, Assistant
United States Attorney, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Isaac Lee Smathers, Jr., timely appeals from the 220-
month sentence and term of supervised release for life imposed
following Smathers’s guilty plea to one count of sexual
exploitation of minors, in violation of 18 U.S.C. § 2251(a)
(2006). Specifically, Smathers alleges that the district court
erred in imposing a special condition of supervised release that
forbids him from “possess[ing] or us[ing] a personal computer or
any other means to access any ‘on-line computer service’ at any
location (including employment) without the prior approval of
the probation officer. This includes any Internet service
provider, bulletin board system, or any other public or private
computer network.” We affirm Smathers’s conviction, but vacate
his sentence and remand for resentencing.
“District courts have broad latitude to impose
conditions on supervised release.” United States v. Dotson, 324
F.3d 256, 260 (4th Cir. 2003) (citation omitted). The court may
impose any condition it deems appropriate, so long as it is
“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
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correctional treatment in the most effective manner.” 18 U.S.C.
§§ 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), 3583(d)(1)
(2006); see also Dotson, 324 F.3d at 260. The condition must
not cause a “greater deprivation of liberty than is reasonably
necessary” to achieve the above goals, 18 U.S.C. § 3583(d)(2),
and must be consistent with Sentencing Commission policy
statements. 18 U.S.C. § 3583(d)(3).
Generally, we review the district court’s imposition
of special conditions of supervised release for abuse of
discretion. Dotson, 324 F.3d at 259. However, because Smathers
failed to object to the special condition in the district court,
we review for plain error. See Fed. R. Crim. P. 52(b); United
States v. Olano, 507 U.S. 725, 731-32 (1993). To demonstrate
plain error, a defendant must show that: (1) there was an error;
(2) the error was plain; and (3) the error affected his
“substantial rights.” Olano, 507 U.S. at 732. We are not
required to correct a plain error unless “a miscarriage of
justice would otherwise result,” meaning that “the error
seriously affects the fairness, integrity, or public reputation
of judicial proceedings.” Id. at 736 (internal quotation marks,
alteration, and citations omitted).
In this case, it is uncontested that Smathers’s crime
did not involve a computer or the Internet. Nor is there any
evidence that Smathers has a history of using the computer or
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Internet to obtain or disseminate child pornography. Thus, we
find that the district court plainly erred because the special
condition is not reasonably related to the § 3553(a) factors
identified above, nor is it in line with the Sentencing
Commission’s policy statement recommending “[a] condition
limiting the use of a computer or an interactive computer
service in cases in which the defendant used such items” in
committing a sex offense. U.S. Sentencing Guidelines Manual
§ 5D1.3(d)(7) (2008). Additionally, we have held that “[t]he
terms and conditions of supervised release are a substantial
imposition on a person’s liberty.” United States v. Maxwell,
285 F.3d 336, 342 (4th Cir. 2002). Thus, the erroneous
imposition of a special condition of supervised release affected
Smathers’s substantial rights. See id.Accordingly, we affirm Smathers’s conviction, but
vacate his sentence and remand for resentencing. We dispense
with oral argument because the facts and legal conclusions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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