United States v. David Cooper ( 2021 )

United States Court of Appeals
For the Eighth Circuit
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No. 21-2158
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United States of America
Plaintiff - Appellee
v.
David Lenorris Cooper
Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Arkansas - Central
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Submitted: December 10, 2021
Filed: December 21, 2021
[Unpublished]
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Before COLLOTON, BENTON, and GRASZ, Circuit Judges.
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PER CURIAM.
David Lenorris Cooper appeals after he pled guilty to failing to register as a
sex offender, and the district court 1 imposed an above-Guidelines prison sentence to
run consecutively to an undischarged state sentence, and various special conditions
1
The Honorable James M. Moody, Jr., United States District Judge for the
Eastern District of Arkansas.
of supervised release. Having jurisdiction under 28 U.S.C. § 1291, this court affirms
the prison sentence and the imposition of release conditions, but remands for the
district court to amend the judgment as it relates to Special Conditions 18 and 19.
Counsel has moved for leave to withdraw and has filed a brief under Anders
v. California, 386 U.S. 738 (1967), arguing that the sentence is unreasonable because
the district court failed to adequately explain its reasoning for running the federal
sentence consecutively to the state sentence, and failed to properly consider and
weigh the relevant 18 U.S.C. § 3553(a) sentencing factors. Counsel also argues that
the district court erred in imposing special conditions of supervised release
restricting Cooper’s access to adult pornography.
The district court considered the relevant sentencing factors in deciding to run
the sentences consecutively, and committed no plain error. See United States v.
Brown, 992 F.3d 665, 672 (8th Cir. 2021) (standard of review); see also 18 U.S.C.
§ 3584(a) (“[I]f a term of imprisonment is imposed on a defendant who is already
subject to an undischarged term of imprisonment, the terms may run concurrently or
consecutively.”); United States v. Rutherford, 599 F.3d 817, 820-22 (8th Cir. 2010)
(affirming where district court stated it considered the § 3553(a) factors, Guidelines,
presentence report, arguments of counsel, and defendant’s allocution, and imposed
consecutive sentences); U.S.S.G. § 5G1.3(d), & comment. (n.4(A)) (factors to
consider in imposing consecutive sentences). The sentence was not substantively
unreasonable because the court properly considered the section 3553(a) factors and
did not err in weighing them. See United States v. Feemster, 572 F.3d 455, 461-62
(8th Cir. 2009) (en banc) (sentences are reviewed for substantive reasonableness
under deferential abuse of discretion standard; abuse of discretion occurs when court
fails to consider relevant factor, gives significant weight to improper or irrelevant
factor, or commits clear error of judgment in weighing appropriate factors; this court
must give due deference to district court’s determination that § 3553(a) factors
justify variance); see also United States v. Mangum, 625 F.3d 466, 469-70 (8th Cir.
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2010) (upward variance was reasonable where court made individualized assessment
based on facts presented).
The record supports restrictions on Cooper’s access to pornography. See
United States v. Adams, 12 F.4th 883, 888 (8th Cir. 2021) (district court is afforded
wide discretion in imposing conditions of supervised release, so long as they meet
the requirements of 18 U.S.C. § 3583(d)).
Special Conditions 18 and 19 should be clarified on remand. See United
States v. Robertson, 948 F.3d 912, 919 (8th Cir.), cert. denied, 141 S. Ct. 298 (2020)
(standard of review). Special Condition 18 prohibits Cooper from entering “adult
bookstores, strip clubs, or adult sex-themed entertainment businesses, or any
establishments where such material or entertainment is available.” Although bans
on entering adult-themed establishments are routinely upheld by this court as
reasonably related to the nature of the offense, the inclusion of “any establishments
where such material or entertainment is available” results in a condition that is overly
broad. See Adams, 12 F.4th at 889. Cooper did not object to this language, but as
in Adams, this court directs that it be amended to conform to the district court’s
presumed intent that the condition extend only to “establishments whose primary
business involves sex-themed material or entertainment.” See Id.
Special Condition 19 includes a prohibition on “material that would
compromise the defendant’s sex offense-specific treatment.” As written, the
prohibition is impermissibly vague because it provides insufficient notice as to the
proscribed conduct. The court directs that on remand, the judgment be amended to
add to Special Condition 19 the clarifying phrase “if the defendant is so notified by
the probation office.” See Robertson, 948 F.3d at 920 (upholding condition
requiring defendant to inform a person of a risk the defendant posed if defendant’s
probation officer determined defendant posed a risk; scope of condition could be
ascertained with “sufficient ease”).
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The judgment of the district court is affirmed as to the length and consecutive
nature of the sentence. The judgment is remanded for the narrow purpose of
amending the written judgment as it relates to Special Conditions 18 and 19 in a
manner consistent with this opinion. Counsel’s motion to withdraw is granted.
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