United States v. Jeffrey Phillips , 405 F. App'x 87 ( 2010 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-1769
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Jeffrey Phillips, *
* [UNPUBLISHED]
Appellant. *
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Submitted: December 13, 2010
Filed: December 27, 2010
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Before LOKEN, ARNOLD, and BYE, Circuit Judges.
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PER CURIAM.
Jeffrey Phillips pleaded guilty to threatening a United States Judge in violation
of 18 U.S.C. § 115(a)(1)(B). The district court1 sentenced him to a term of ninety-six
months of imprisonment followed by three years of supervised release. Based on
Phillips's previous history of sexually assaulting minor children, the district court
imposed a special condition of supervised release which prohibits Phillips from
possessing material either depicting the nudity of minors or depicting certain types of
sexual activity. Phillips appeals contending the special condition of supervised release
1
The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
is overbroad, more burdensome than necessary to serve federal sentencing goals, and
too vague to give him notice of the conduct prohibited by the special condition.
The special condition of supervised release at issue states as follows:
The defendant shall neither possess nor have under his/her control any
material, legal or illegal, that contains or depicts nudity of minors, or any
sexual activity, i.e: [sic] sexual intercourse or attempted sexual
intercourse, vaginal, anal, or oral. This includes, but is not limited to,
any material obtained through access to any computer, including a
computer for employment purposes, or any other material linked to
computer access or use.
Addendum at 5.
All of the challenges Phillips lodges against the special condition pertain to the
language referring to "any other material linked to computer access or use." Phillips
contends this language prohibits him from possessing a broad range of material
beyond that which "contains or depicts nudity of minors, or any sexual activity, i.e:
[sic] sexual intercourse or attempted sexual intercourse, vaginal, anal, or oral." As the
government aptly notes, Phillips is mistaken. The special condition does not prohibit
Phillips from all material linked to computer or internet usage: it only prohibits him
from possessing material depicting the nudity of minors or the specific sexual
activities listed, including such specified materials that might be obtained via
computer or over the internet. The words "[t]his includes," which open the second
sentence containing the objected-to phrase, clearly demonstrate an intent for the
computer usage restrictions outlined in the second sentence to relate back to the
specific materials referred to in the first sentence (material depicting the nudity of
minors and the specified types of sexual activity).
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We conclude the phrase, as properly construed, does not prohibit Phillips from
all computer or internet usage. The special condition only prohibits him from
possessing certain types of sexually explicit material specifically tailored to address
Phillips's history of sexually assaulting minor children and of using certain kinds of
pornography to accomplish the sexual assaults. See 18 U.S.C. § 3583(d)(1) (requiring
special conditions of supervised release to be "reasonably related" to the history and
characteristics of the defendant).
Accordingly, we affirm.
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