United States v. Michael Kerr ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-2157
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Michael T. Kerr, *
*
*
Appellant. *
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Submitted: November 13, 2006
Filed: December 27, 2006
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Before BYE, JOHN R. GIBSON, and GRUENDER, Circuit Judges.
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BYE, Circuit Judge.
Michael T. Kerr pleaded guilty to distribution of child pornography in violation
of 18 U.S.C. § 2252A(a)(1) and possession of child pornography in violation of 18
U.S.C. § 2252A(a)(5)(B). The district court1 sentenced him to 151 months of
imprisonment and ten years of supervised release. Kerr appeals challenging the
validity of several special conditions of his release as well as the district court’s
1
The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
recommendation to the Bureau of Prisons (BOP) that he participate in sex offender
treatment while incarcerated. We affirm.
On October 14, 2004, FBI Innocent Images Task Force Officer James Kite
downloaded a pornographic image from Kerr’s computer depicting sexual intercourse
between two pre-teen minors. Kerr had set up an image exchange with other
computer users. He placed a notice on an Internet Relay Chat (IRC)2 channel entitled
#100%PRETEENGIRLSEXPICS, which offered access to pornographic images of
pre-teen girls on a file server3 on Kerr’s computer. The notice explained IRC users
could download an image from Kerr’s file server only if they first uploaded an image
onto Kerr’s computer. Pursuant to these instructions, Officer Kite first uploaded a
non-pornographic image onto Kerr’s computer and then downloaded the image in
question. Due to the content of the image, the FBI obtained and executed a search
warrant of Kerr’s home. Subsequent forensic analysis of Kerr’s computer uncovered
between forty-five and fifty files containing images of child pornography, some
depicting children under the age of twelve and sadomasochistic violence. Although
Kerr initially denied he possessed child pornography, he eventually admitted both
possession and distribution of the images. He claimed he distributed these images in
an attempt to spread a computer virus to the computers of pedophiles. According to
Kerr, he initiated this project in October 2004 and received several images from IRC
users he intended to delete. He further claimed his “virus project” was ultimately
unsuccessful and, as a result, he deleted most of the images uploaded onto his
computer as well as the virus files. In response to this claim, the FBI conducted
further forensic analysis of Kerr’s computer which failed to corroborate his story.
2
The IRC is a system which enables computer users connected to the Internet
to participate in live typed discussions much like instant messaging or chat lines.
Communications on IRC channels are not monitored.
3
Kerr had installed a file server program on his computer. This program
allowed other computer users to access files stored on his computer as well as
download files onto his computer.
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At sentencing, Kerr did not dispute the charges against him, rather he again
claimed he only possessed and distributed the child pornography in order to spread a
computer virus. The district court rejected this claim noting “I don’t believe it, and
there is no objective evidence to substantiate [Kerr’s] story.” On appeal he concedes
the district court rejected his story. At sentencing, he presented the expert report and
testimony of psychologist Hollida Wakefield who concluded he was not a pedophile.
She recommended Kerr receive no sex offender treatment while incarcerated or while
on supervised release, as such treatment was unnecessary and would be harmful to
him. The district court discounted Wakefield’s testimony and report:
I also find there is no way for anyone, including Ms. Wakefield, to
predict who will offend as a sex offender. Many of her -- all of her
conclusions -- except for the testing of the IQ and the Minnesota
Multiphasic Personality Inventory, all of her conclusions are based on
unquestioningly accepting [Kerr’s] statements without any backup. She
just took them at face value, and then applied her hunches. I find that
she does not have specific expertise in sexual deviance and that many of
the opinions she offered are lacking in foundation. I did not find her
report helpful.
The district court sentenced Kerr to the low end of the advisory guideline range
of 151 to 188 months and imposed a supervised release term of ten years. In its
sentencing order, the district court recommended to the BOP that he participate in sex
offender treatment while incarcerated. The district court also imposed several
conditions of supervised release including certain conditions: 1) requiring him to
register with the sex offender registration agency in the state where he resides or
works; 2) requiring him to participate in a mental health evaluation and/or treatment
program, as directed by his probation officer; and 3) requiring him to obtain
permission from the probation office prior to contacting minors or going to places
where minors congregate. Kerr did not object to these conditions at sentencing. On
appeal, he does not challenge his sentence but rather challenges the district court’s
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recommendation to the BOP and the above-referenced terms of his supervised
release. He also argues the district court improperly delegated to the probation office
the decision of whether he should participate in sex offender treatment during
supervised release.
Kerr first argues the district court erred in recommending to the BOP that he
receive sex offender treatment while incarcerated. He asks the court to vacate the
recommendation and remand for resentencing. Pursuant to 28 U.S.C. § 1291, we
have jurisdiction over final decisions of district courts. As an initial matter, a district
court’s recommendation is not binding on the BOP. See United States v. Creed, 897
F.2d 963, 964 (8th Cir. 1990) (noting the district court’s recommendation that the
defendant participate in alcohol treatment was not binding on the BOP). Although
this is an issue of first impression in this circuit, other circuits have held such non-
binding recommendations are not final decisions and, as such, are not reviewable on
appeal. See United States v. Yousef, 327 F.3d 56, 165 (2d Cir. 2003) (“Because
these recommendations are not binding on the [BOP], they are [not] appealable as
‘final decisions’ under 28 U.S.C. § 1291 . . . [t]hus, we lack jurisdiction to consider
these claims.”); United States v. Serafini, 233 F.3d 758, 778 (3d Cir. 2000) (holding
a sentencing court’s non-binding recommendation to the BOP is not reviewable);
United States v. De La Pena-Juarez, 214 F.3d 594, 601 (5th Cir. 2000) (same). We
are persuaded by these decisions and hold a non-binding recommendation to the BOP
is not reviewable as it is not a final decision of the district court.
Kerr next objects to several conditions of his supervised release. “A sentencing
judge is afforded wide discretion when imposing terms of supervised release.”
United States v. Crume, 422 F.3d 728, 732 (8th Cir. 2005). When a defendant fails
to raise an objection to those terms at sentencing, we review the terms of supervised
release for plain error. United States v. Crose, 284 F.3d 911, 912 (8th Cir. 2002).
“Plain error occurs if the district court deviates from a legal rule, the error is clear
under current law, and the error affects the defendant’s substantial rights.” Id.
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“While the district court enjoys broad discretion in setting special conditions of
supervised release, those conditions must meet the requirements of 18 U.S.C.
§ 3583(d).” United States v. Davis, 452 F.3d 991, 994-95 (8th Cir. 2006). Under
§ 3583(d) the condition: 1) must be reasonably related to the nature and
characteristics of the offense and the defendant, the deterrence of criminal conduct,
the protection of the public from any further crimes of the defendant, and the
defendant’s correctional needs; 2) must not involve any “greater deprivation of
liberty than is reasonably necessary” to advance these goals; and 3) must be
consistent with any pertinent policy statements the sentencing commission has issued.
Kerr argues the district court erred in requiring him to register as a sex offender
as a condition of his supervised release. He claims this condition is not warranted as
there is no evidence he is actually a sexual predator, Wakefield’s testimony verified
he is not a sexual predator, and Iowa law does not require persons convicted of
distributing or possessing child pornography to register as sex offenders. He
acknowledges the sentencing guidelines list registration as a “mandatory condition”
of supervised release for sex offenses, see U.S. Sentencing Guidelines (U.S.S.G.)
5D1.3(a)(7) (2005), but argues this provision is merely advisory after United States
v. Booker, 543 U.S. 220 (2005).
As a threshold matter, Kerr is incorrect when he claims the Iowa Code does not
require those convicted of distributing or possessing child pornography to register as
sex offenders. See Iowa Code §§ 692A.2, 692A.1(5)(m), and 728.12 (mandating sex
offender registration of those convicted of promoting or possessing child
pornography as these offenses constitute “criminal offense[s] against a minor”). As
for his argument there is no evidence he is a sexual predator and there is strong
credible evidence contrary to this finding, this argument hinges on Wakefield’s
testimony and report. As is clear from the district court’s comments at sentencing,
however, it was not persuaded by this evidence. The district court discredited
Wakefield’s testimony and found her report was not helpful. A district court is not
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required to accept an expert’s opinions during sentencing. Ramos v. Weber, 303 F.3d
934, 937 (8th Cir. 2002). Because the district court refused to credit Wakefield’s
opinions, we should not afford them much weight on appeal. It follows these
opinions should not form the sole basis for finding the district court plainly erred in
its imposition of this condition. Because registration is a “mandatory condition”
under the advisory guidelines, and such registration is consistent with Iowa law, we
conclude the district court did not plainly err in ordering him to register as a sex
offender as a condition of his supervised release.
Kerr next argues the district court erred in imposing three special conditions of
supervised release which limit his contact with minors. Special Condition Eight
provides he is not to communicate with minors online without prior permission from
his probation officer. Special Condition Nine broadens the restriction precluding any
contact with a minor without permission. Finally Special Condition Ten restricts his
access to places where minors congregate without first obtaining permission. He
argues these restrictions are unnecessary, are not reasonably related to the goal of
rehabilitation, and are not supported by the evidence against him. Again, he relies
heavily on the testimony of Wakefield. She testified Kerr is not likely to be a
recidivist and is not a danger to children. He does not argue these contact conditions
should not be imposed in any case involving child pornography, but instead argues
they should not be imposed in his case. This is so because his offenses should be
characterized as computer offenses rather than sex offenses. Kerr primarily relies on
two cases in support of his contention. In United States v. Scott, 270 F.3d 632, 636
(8th Cir. 2001), we found the district court abused its discretion by imposing sex-
offense-related conditions of supervised release on a defendant convicted of armed
robbery, based on his conviction for forcible rape of a minor fifteen years before. We
held such conditions bore no reasonable relationship to the nature of the convicted
offense and found there was “no evidence supporting the need for the special
conditions.” Id. In addition, we recognized “the special conditions seem[ed] unlikely
to serve the goals of deterrence or public safety, since the behavior on which the
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special conditions are based, though highly reprehensible, has ceased.” Id. Likewise,
in United States v. Kent, 209 F.3d 1073, 1074 (8th Cir. 2000), we found the district
court abused its discretion by imposing a special condition requiring the defendant
to undergo psychological counseling where he had been convicted of mail fraud.
This condition was based on the defendant’s mental and physical abuse of his wife
and children thirteen years prior to sentencing. We held this was an abuse of
discretion because thirteen years had passed since the conduct, the defendant’s
offense was completely unrelated to the imposed condition and there was no evidence
in the record to suggest mental counseling would further the goals of deterrence or
public protection. Id. at 1077. Each of these cases is distinguishable because Kerr
was convicted of offenses which are reasonably related to these contact conditions,
as he was convicted of two child pornography offenses. Furthermore, unlike in
Scott or Kent, the conduct supporting the imposition of these conditions was recent,
rather than occurring several years prior to his sentencing.
The undisputed evidence demonstrates Kerr possessed and distributed child
pornography, some depicting the sadistic and violent sexual abuse of pre-teen minors.
This court has, in several instances, upheld similar conditions limiting contact with
minors in child pornography possession cases, albeit in cases involving defendants
with records of sexual abuse of minors. See United States v. Mark, 425 F.3d 505,
508 (8th Cir. 2005) (finding the district court did not abuse its discretion by imposing
condition limiting contact with minors without permission, where defendant had
history of violating conditions of release and the record reflects some sexual
exploration with a minor); Crume, 422 F.3d at 734 (finding no abuse of discretion
where district court imposed a contact condition because the child with whom the
defendant desired contact was conceived as a result of his impregnating a fourteen-
year-old girl); United States v. Heidebur, 417 F.3d 1002, 1004 (8th Cir. 2005)
(finding district court did not abuse its discretion by imposing a contact condition
where defendant was convicted of possessing sexually explicit pictures of his twelve-
year-old daughter). It is true Kerr does not have a history of sexually abusing minors.
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Recently, however, in United States v. Mickelson, 433 F.3d 1050 (8th Cir. 2006), we
suggested the absence of such a history is not necessarily determinative when
deciding whether the district court erred in imposing contact conditions. In
Mickelson, the defendant pleaded guilty to receiving child pornography. He also
admitted he had sent pornographic images to other people and some of these images
“depicted children under the age of 12 and sadistic or masochistic violence.” Id. at
1051. In upholding the district court’s imposition of a condition requiring the
defendant to obtain permission prior to contact with minors, we noted the lack of a
history of abuse was not determinative, “for requiring prior approval before a
convicted sex offender has contact with minors is a reasonable means of ensuring that
such contact remains appropriate” and the defendant “has not been forbidden from
seeing his grandchildren or any other family member; he is merely required to seek
prior permission.” Id. at 1057 (emphasis added). We further noted “[i]f such
permission is arbitrarily or unfairly denied, [Mickelson] is free to seek relief from the
district court under § 3583 (e).” Id. In contrast, we have also found a district court
plainly erred when it imposed, in a child pornography receipt case, a condition
denying a defendant any unsupervised contact with his minor daughter. Davis, 452
F.3d at 995. Davis is distinguishable, however, as the condition imposed allowed no
unsupervised contact with a minor rather than allowing such contact after obtaining
permission. In addition, in Davis we gave great weight to the protected liberty
interest at issue—the defendant’s parental interest in raising his child. Such an
interest is not at issue here.
We are persuaded by the reasoning in Mickelson. While Kerr does not have a
history of abusing minors, his offenses include both the possession and distribution
of child pornography. We have found child pornography distribution offenses are
more serious than mere possession offenses. See United States v. Fields, 324 F.3d
1025, 1027 (8th Cir. 2003). Like in Mickelson, he admits to distributing child
pornography and also admits he possessed pornography depicting children under
twelve and sadomasochistic violence. The conditions imposed by the district court
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are not as restrictive as those in Davis, as Kerr can contact minors or enter places
where minors congregate so long as he obtains prior permission from the probation
office. Furthermore, because he is childless, he is not restricted from contacting his
own children. It also bears mention the district court considered the possibility of
revisiting these conditions at a later date noting at sentencing: “We’ll see how it goes
when he comes out on supervision and assess that a little further.” As such, we hold
these contact conditions are not unreasonably restrictive given the circumstances and
the district court did not plainly err.
Finally, Kerr contends the district court erred in imposing a special condition
which he claims impermissibly delegates to the probation office the decision of
whether to place him in a sex offender treatment program upon his release from
prison. Special Condition Four mandates: “The defendant shall participate in a
mental health evaluation and/or treatment program, as directed by his probation
officer. This may include participation in a sex offender treatment program or any
such similar program offered in the defendant’s approved district of residence.”
A sentencing judge may delegate limited authority to non-judicial officials as
long as the judge retains and exercises ultimate responsibility. Mickelson, 433 F.3d
at 1056. Kerr relies on Kent, where we reversed a district court’s delegation of
authority to the probation officer to decide whether to require the defendant to
undergo mental health treatment. We did so because the district court’s statements
at sentencing suggested the probation officer rather than the district court would
“retain and exercise ultimate responsibility over the situation.” Kent, 209 F.3d at
1079. In Kent, the district court charged the probation officer with the future
determination of whether the defendant would receive psychiatric counseling and,
when asked whether or not the defendant could move for reconsideration if he
disagreed with the probation officer’s decision, the district court responded: “I don’t
hope to be riding herd on such questions, but, if necessary, I will. But remember, the
probation officer is my personal staff and I have confidence in them.” Id. at 1075.
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In the present case the district court made no such statements indicating it was
relinquishing final authority or granting the probation officer carte blanche over
Kerr’s treatment. See Mickelson, 433 F.3d at 1057 (finding no abuse of discretion
where the district court imposed a condition requiring mental health treatment if the
probation officer “deemed it appropriate” but had not made statements which “could
have been interpreted to vest final authority in the probation office”). In fact, as
noted above, the district court indicated it would consider revisiting Kerr’s conditions
of supervised release after his release. As such, we conclude the district court did not
impermissibly delegate its authority by imposing Special Condition Four.
Accordingly, the judgment of the district court is affirmed.
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