United States v. Henson , 22 F. App'x 107 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4215
PETER HENSON,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Lacy H. Thornburg, District Judge.
(CR-99-68)
Submitted: August 24, 2001
Decided: October 19, 2001
Before TRAXLER, KING, and GREGORY, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
COUNSEL
Aaron E. Michel, Charlotte, North Carolina, for Appellant. Mark T.
Calloway, United States Attorney, Brian Lee Whisler, Assistant
United States Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. HENSON
OPINION
PER CURIAM:
Peter Henson pled guilty to receiving or distributing over 100 pic-
tures of children engaged in sexually explicit conduct that had been
transported in interstate commerce, 18 U.S.C.A. § 2252(a)(2) (West
2000), and was sentenced to a term of eighty-four months imprison-
ment. He contests his sentence, alleging (1) that the district court
erred in finding that emails evidencing prior distributions of child por-
nography were properly included as relevant conduct constituting a
five-level enhancement under U.S. Sentencing Guidelines Manual
§ 2G2.2(b)(2) (1998);* (2) that the district court erred in making a
two-level enhancement under USSG § 2G2.2(b)(5) for use of a com-
puter to transmit child pornography based on Henson’s emails; and
(3) that the district court abused its discretion by imposing overly
restrictive special conditions of supervised release. We affirm the dis-
trict court’s order imposing special conditions of supervised release,
but vacate the sentence of imprisonment and remand for resentencing
without the contested enhancements.
I.
In May 1997, Morgan Marks was arrested in Texas for promoting
child pornography through the Internet. Peter Henson was identified
as one of his customers. Undercover officers working with the U.S.
Postal Inspection Service offered Marks’ customers a CD-ROM disk
containing child pornography. In April 1999, Henson ordered the CD-
ROM disk through the mail, and a controlled mail delivery of the disk
to Henson was made on July 22, 1999. Immediately afterward, a
search warrant was executed at Henson’s residence. Henson turned
*At sentencing Henson maintained that a five-level enhancement
under USSG § 2G2.2(b)(2) required the distribution of child pornogra-
phy for pecuniary gain. Henson, however, abandoned this position on
appeal. Nonetheless, this Court’s decision in United States v. Williams
precludes such an argument. 253 F.3d 789, 793 (4th Cir. 2001) (conclud-
ing that a sentencing enhancement for distribution, as used in § 2G2.2,
applies to disseminations other than those made solely for pecuniary
gain).
UNITED STATES v. HENSON 3
over to investigators another disk he had previously ordered from
Marks containing child pornography.
Henson’s computer was examined, and deleted emails were discov-
ered, some with images attached, which revealed that Henson had
solicited, received, and distributed child pornography through the
Internet. The email messages indicated that Henson had been barter-
ing child pornography rather than selling it. Henson also possessed
several Polaroid pictures of nude children under twelve in sexual
positions. He admitted taking some of the pictures.
Henson pled guilty to receiving over 100 pictures involving the use
of minors engaged in sexually explicit conduct between April 30,
1997, and July 22, 1999, in violation of 18 U.S.C.A. § 2252(a)(2).
This charge involved the CD-ROM disk Henson ordered through the
mail during the investigation. He was not charged with offenses aris-
ing from the use of his computer to receive and distribute child por-
nography, or to receive the notice or advertisement of child
pornography.
The guideline applicable to Henson’s offense was USSG § 2G2.2.
The probation officer recommended, among other enhancements, a
five-level increase under § 2G2.2(b)(2), for an offense involving dis-
tribution, and a two-level increase under § 2G2.2(b)(5), for use of a
computer in the transmission of the material. Henson objected to the
enhancement under § 2G2.2(b)(2), arguing that the emails were not
relevant conduct because his offense of conviction did not include
distribution. He asserted that the emails could not be considered rele-
vant conduct under USSG § 1B1.3(a)(2), i.e., conduct that was part
of the same course of conduct as his offense of conviction, because
his offense was not one that could be grouped under USSG
§ 3D1.2(d). He objected on the same ground to the recommended
enhancement under § 2G2.2(b)(5) for use of a computer to transmit
the material or a notice or advertisement of the material.
At the sentencing hearing, the district court summarily overruled
his objections. The court specifically found that the enhancement
under § 2G2.2(b)(2) did not require distribution for pecuniary gain.
The court imposed a sentence of eighty-four months imprisonment
4 UNITED STATES v. HENSON
and five years supervised release. The court imposed the following
special conditions of supervised release:
Defendant shall have no unsupervised contact with children
under the age of 18 or with any victim in this case, as
revealed in photographs. Defendant shall participate in men-
tal health and sex offender treatment programs as directed
by the probation officer, which may include physiological
and psychological testing to determine the defendant’s sex-
ual orientation and patterns of sexual arousal and shall
include a psychiatric program. Defendant shall participate in
a psychiatric treatment program as directed by the probation
officer and shall take any and all prescribed medications as
directed by the treatment provider. Defendant shall abstain
from the use of alcohol or illegal drugs. Defendant shall
work at a job which must be pre-approved by the probation
officer. Defendant shall not possess any pornography or sex-
ually explicit material. Defendant must comply with any
state or local offender registration laws. Defendant shall not
possess or use any computer which has the capacity to be
connected to any network. Standard condition 17, which
includes search procedures, shall include search of computer
hard drives, computer disks and any other computer files the
defendant may possess.
Henson’s attorney objected "to any condition that would restrict his
First Amendment rights as far as restrictions on materials that would
not constitute contraband . . . and . . . any condition that would require
him to waive his constitutional right to remain silent as far as provid-
ing sexual history." The district court overruled the objection without
comment.
II.
The district court’s legal determinations concerning guideline
application are reviewed de novo. United States v. Blake, 81 F.3d 498,
503 (4th Cir. 1996). Henson contends first that the emails he distrib-
uted were not relevant conduct because his offense of conviction is
not one that must be grouped under USSG § 3D1.2(d) when there are
multiple counts, and thus his relevant conduct does not include acts
UNITED STATES v. HENSON 5
he committed that were part of the same course of conduct or com-
mon scheme or plan as the offense of conviction. We agree.
For offenses in which the offense level is not determined by aggre-
gate harm, relevant conduct includes those acts that occurred during
the commission of the offense of conviction, in preparation for that
offense, or in the course of attempting to avoid detection or responsi-
bility for that offense. USSG § 1B1.3(a)(1)(A). On the other hand, for
offenses in which aggregate harm determines the offense level (and
which must be grouped under USSG § 3D1.2(d) in the case of multi-
ple counts), relevant conduct includes "all acts and omissions
described in subdivisions (1)(A) and (1)(B) above that were part of
the same course of conduct or common scheme or plan as the offense
of conviction." USSG § 1B1.3(a)(2).
Henson’s offense of conviction was not one which must be
grouped under USSG § 3D1.2(d) because under USSG § 2G2.2, the
offense level is not determined on the basis of quantity or other mea-
sure of aggregate harm. Consequently, child pornography that Henson
received or delivered, apart from the CD-ROM delivered by the
agents on July 22, 1999, could not be considered relevant conduct
simply because Henson received or distributed it as part of the same
course of conduct. Therefore, the district court erred in making the
enhancement under § 2G2.2(b)(2).
For the same reasons, the two-level enhancement under
§ 2G2.2(b)(5) for use of a computer to transmit the material or a
notice or advertisement of the material was error because the offense
of conviction did not involve use of a computer, even though Henson
used a computer to obtain child pornography on other occasions.
Henson also argues that there is a conflict between § 1B1.3(a)(2)
and § 2G2.2(b)(2) and that the latter should prevail over the former,
citing United States v. Cook, 181 F.3d 1232, 1235 (11th Cir. 1999)
(holding that reasonable foreseeability provision of § 1B1.3(a)(1)(B)
does not apply to § 3C1.2 adjustment for reckless endangerment). We
find no conflict between § 1B1.3(a)(2) and § 2G2.2(b)(2). An offense
covered by § 2G2.2 simply does not fall under § 1B1.3(a)(2) because
it is not an offense "of a character for which § 3D1.2(d) would require
grouping of multiple counts. . . ." USSG § 1B1.3(a)(2).
6 UNITED STATES v. HENSON
III.
Henson claims that the court impermissibly restricted his First
Amendment right to possess materials that are not contraband, and
that the condition that he comply with state or local sex offender reg-
istration laws restricts his Fifth Amendment right to remain silent
because such a program would likely require him to provide his sex-
ual history, self-report any violations of law, and take polygraph tests.
The sentencing court may impose "any . . . condition [of supervised
release] that it considers to be appropriate," 18 U.S.C.A.
§ 3583(d)(1)-(3) (West 2000 & Supp. 2001), as long as any special
condition is:
(1) . . . reasonably related to the factors set forth in sec-
tion 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D);
(2) involves no greater deprivation of liberty than is rea-
sonably necessary for the purposes set forth in section
3553(a)(2)(B), (a)(2)(C), and (a)(2)(D); and
(3) is consistent with any pertinent policy statements
issued by the Sentencing Commission pursuant to 28 U.S.C.
994(a).
The purposes mentioned in § 3583(d)(2), and set out in 18
U.S.C.A. § 3553(a)(2) (West 2000), are "the need for the sentence
imposed . . . to afford adequate deterrence to criminal conduct; to pro-
tect the public from further crimes of the defendant; and to provide
the defendant with needed educational or vocational training, medical
care, or other correctional treatment in the most effective manner." 18
U.S.C.A. § 3553(a)(2); see United States v. Bee, 162 F.3d 1232, 1235
(9th Cir. 1998). The district court’s decision to impose special condi-
tions of supervised release is reviewed for abuse of discretion. United
States v. Crandon, 173 F.3d 122, 127 (3d Cir.), cert. denied, 528 U.S.
855 (1999).
A special condition of supervised release may restrict fundamental
rights when the special condition "is narrowly tailored and is directly
UNITED STATES v. HENSON 7
related to deterring [the defendant] and protecting the public." Id. at
128. Restrictions affecting constitutional rights "‘are valid if directly
related to advancing the individual’s rehabilitation and to protecting
the public from recidivism.’" Id. (quoting United States v. Ritter, 118
F.3d 502, 504 (6th Cir. 1997)).
In light of Henson’s conviction for receiving more than 100 images
of child pornography and his prior conviction for taking indecent lib-
erties with a minor, we find that the restriction on his possession of
any sexually explicit material was not overly broad and was suffi-
ciently related to the goals of rehabilitating Henson and protecting the
public.
Henson also maintains that participation in a treatment program
that requires him to provide a sexual history would require him to
confess to uncharged crimes and violate his Fifth Amendment right
against self-incrimination, and suggests that his supervised release
might be revoked for "bad thoughts." However, under USSG
§ 5D1.3(d)(5), p.s., the district court may impose a special condition
that requires the defendant to "participate in a mental health program
approved by the United States Probation Office." Such programs are
directed toward helping a defendant overcome any sexual deviance
and assessing the threat he might pose to society, rather than to col-
lecting information that could be used to incriminate him. See Wal-
rath v. United States, 830 F. Supp. 444, 446-47 (N.D. Ill. 1993).
We therefore affirm the special conditions of supervised release
imposed by the district court, but vacate the sentence of imprisonment
and remand for resentencing in accord with this opinion. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED IN PART, VACATED IN PART,
AND REMANDED