United States v. Marc Accardi , 669 F.3d 340 ( 2012 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 14, 2011 Decided February 28, 2012
No. 09-3091
UNITED STATES OF AMERICA,
APPELLEE
v.
MARC ACCARDI,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:09-cr-00009-1)
Jonathan S. Zucker, appointed by the court, argued the
cause and filed the briefs for appellant.
Peter S. Smith, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Ronald C. Machen
Jr., U.S. Attorney, and Roy W. McLeese III, John P.
Mannarino, and Julieanne Himelstein, U.S. Attorneys.
Before: GARLAND, BROWN and GRIFFITH, Circuit Judges.
2
Opinion for the Court filed by Circuit Judge BROWN.
BROWN, Circuit Judge: Appellant Marc Accardi pled
guilty to one count of transportation of child pornography and
one count of possession of child pornography. On appeal, he
challenges the duration and conditions of his supervised
release. Because the district court committed no plain error,
we affirm.
I
On November 22, 2008, Marc Accardi entered a public
internet chat room using the alias “Jerkinoff” and struck up a
conversation with an individual who claimed to be an adult
male pedophile living in Washington, D.C. Unbeknownst to
Accardi, he was actually communicating with Detective
Timothy Palchak of the Metropolitan Police Department, who
was working undercover with the FBI’s Innocent Images Task
Force. Accardi told Detective Palchak that he “had an interest
in children” ranging in age “from baby on up.” During the
conversation, Accardi sent the detective thirteen images of
prepubescent children engaging in sexual activity with adult
men.
Law enforcement personnel executed a search warrant at
Accardi’s residence in Scranton, Pennsylvania on December
19, 2008. Agents retrieved thousands of images of young
children from Accardi’s computer; most of the pictures
showed children under the age of 12 having sexual contact or
relations with adults. Accardi was subsequently charged, in
Washington, D.C., with transportation and possession of child
pornography. Pursuant to a signed plea agreement and
statement of offense, Accardi pled guilty to both charges at a
May 5, 2009 hearing before the United States District Court
for the District of Columbia.
3
On September 2, 2009, the district court sentenced
Accardi to concurrent terms of 100 months of incarceration
for each count of his indictment. The court also imposed a
40-year term of supervised release, during which Accardi
would be required to comply with a number of conditions. At
no point during the sentencing hearing did Accardi or his
counsel object to any aspect of the sentence.
In this appeal, Accardi challenges the duration of his
supervised release and three of its conditions: (1) a ban on
“patroniz[ing] any place where pornography or erotica can be
accessed or is expressly offered, obtained or viewed,
including establishments where sexual entertainment is
available, [such as] adult bookstores, peep shows or adult
entertainment establishments”; (2) a restriction on his use of a
“computer that has access to any online computer service at
any location, including [his] place of employment, without the
prior approval of the probation office”; and (3) participation
in and successful completion of a “residential . . . or
outpatient substance abuse treatment program, specifically
directed toward alcohol abuse, which can include testing and
detoxification service as approved and directed by the
probation office.” Transcript of Sentence at 30–32.
II
We review all of Accardi’s challenges for plain error
because they were not raised before the district court. United
States v. Sullivan, 451 F.3d 884, 892 (D.C. Cir. 2006). To
prevail under the demanding plain error standard, an appellant
must show that the district court made: (1) a legal error; that
was (2) plain or obvious; and that (3) affected his substantial
rights. United States v. Olano, 507 U.S. 725, 733–34 (1993).
Once plain error is established, this Court may exercise its
4
discretion to correct plain error only where the error seriously
affects the fairness, integrity, or public reputation of judicial
proceedings. Id. at 736. It is appellant’s burden to
demonstrate that he has met these requirements. United
States v. Smith, 267 F.3d 1154, 1160 (D.C. Cir. 2001).
Accardi argues that the forty-year term of supervised
release was procedurally unsound because the district court
incorrectly applied the Sentencing Guidelines and failed to
adequately explain the sentence. Accardi also argues that the
duration of the term was substantively unsound because it
created an unwarranted sentencing disparity among similarly
situated offenders. None of his arguments have merit.
As a threshold matter, we reject the government’s
contention that Accardi waived any appeal of the length and
conditions of his supervised sentence or “invit[ed]” the
alleged error. Appellee’s Br. at 8. A defendant may waive
his right to appeal his sentence as part of a plea bargain only
if the waiver is “knowing, intelligent, and voluntary.” United
States v. Guillen, 561 F.3d 527, 529 (D.C. Cir. 2009). For a
waiver to be “knowing” and “intelligent,” the court must
assure itself that the defendant is “aware of and understands
the risks involved in his decision.” Id. In the context of a
plea bargain, such a determination is usually made at the plea
hearing, at which the court can fully explain the consequences
of the waiver by informing the defendant of exactly what
rights he is giving up and what rights he retains. See id. at
528.
No such colloquy occurred, so we cannot be sure Accardi
knew that he would waive his ability to challenge his sentence
by addressing the district court at his September 2, 2009
sentencing hearing. Accardi merely said that he would “take
lifetime probation supervision . . . I just ask and I beg for
5
leniency and to send me home to my family. I’m willing to
do anything—any restrictions you want to place, I’m willing
to do that and more[.]” Transcript of Sentence at 19–20. The
substance of Accardi’s statement does not align with the
sentence handed down by the district court. By “beg[ging]
for leniency and [asking the judge] to send [him] home to
[his] family”, id., Accardi clearly offered to accept lifetime
supervised release as an alternative to jail time. Nowhere did
he indicate his willingness to accept the sentence he now
challenges, which consists of both an extended term of
incarceration and lifetime supervised release accompanied by
many burdensome restrictions.
We therefore turn to Accardi’s allegations of procedural
error. A sentencing court can commit procedural error “by
failing to calculate (or improperly calculating) the Guidelines
range.” Gall v. United States, 552 U.S. 38, 51 (2007). The
Prosecutorial Remedies and Other Tools to End the
Exploitation of Children Today Act of 2003 (PROTECT Act),
Pub. L. 108–21, codified at 18 U.S.C. § 3583(k), authorized
the imposition of a lifetime period of supervised release for
sex offenders. The relevant Sentencing Guideline defines
“sex offense” as “(A) an offense, perpetrated against a minor,
under… (iii) chapter 110 of [title 18 United States Code],”
U.S.S.G. § 5D1.2 cmt. n. 1. Accardi pled guilty to violations
of § 2252A, which is part of Chapter 110.
Accardi contends his offenses, possessing and
distributing child pornography, do not fall within § 5D1.2
because they were not “perpetrated against a minor.” We—
along with Congress, the Supreme Court, and every federal
court to address this issue—disagree. As the victim impact
statements in this case show, child pornography creates an
indelible record of the children’s participation in a
traumatizing activity, and the harm to the child is only
6
exacerbated by the circulation of the materials. See New York
v. Ferber, 458 U.S. 747, 759 (1982); Child Pornography
Protection Act of 1996, Pub. L. No. 104-208, § 101(a)(2), 110
Stat. 3009, 3009 (2006) (finding that “where children are
used in its production, child pornography permanently records
the victim’s abuse, and its continued existence causes the
child victims of sexual abuse continuing harm by haunting
those children in future years”). Moreover, four different
circuits have rejected precisely the argument that Accardi
makes here. See United States v. Daniels, 541 F.3d 915, 924
(9th Cir. 2008) (explaining that “merely possessing child
pornography is not a victimless crime; it fuels the demand for
the creation and distribution of child pornography”); United
States v. Pugh, 515 F.3d 1179, 1196 (11th Cir. 2008) (“The
distribution of photographs and films depicting sexual activity
by juveniles is intrinsically related to the sexual abuse of
children…”); United States v. Gonzalez, 445 F.3d 815, 819
(5th Cir. 2006) (rejecting claim that “mere consumption” of
child pornography is not “an offense perpetrated directly
against a minor”); United States v. Kimler, 335 F.3d 1132,
1147 (10th Cir. 2003) (holding that possession and
consumption of child pornography are crimes “perpetrated
against a minor”). No other federal court has accepted
Accardi’s argument, and we will not be the first.
Accardi also claims the district court failed to adequately
explain his sentence, in violation of Section 3553(c). We find
the district court’s reasons for imposing a 40-year sentence to
be apparent from the record. The court explained the conduct
underlying Accardi’s offenses was “of grave concern,”
Transcript of Sentence at 26, because “[t]here was very
aggressive sexual activity [in the images] when compared to
some of the other images that I’ve seen in other cases.” Id. at
23. The judge noted Accardi claimed he had sexual contact
with a six-year-old, id. at 25, and noted his apparent
7
willingness “to take this beyond looking at images,” id. at 26.
She further explained that like drug or alcohol dependency,
rehabilitative treatment is “not a cure” and is “something that
you’ll have to deal with for the rest of your life.” Id. She
subsequently explained that supervised release is a “very
critical piece,” the purpose of which is to “monitor and
require a program, when in the community, [to] prevent any
reoccurrence. Id. at 28. This extended discussion about
Accardi’s particular crimes and the purposes of supervised
release makes clear that the district court based the sentence
on what was reasonably necessary to protect the public,
prevent a reoccurrence, and provide Accardi with treatment.
See Rita v. United States, 551 U.S. 338, 356–57 (2007)
(“[W]hen a judge decides simply to apply the Guidelines to a
particular case, doing so will not necessarily require lengthy
explanation . . . Unless a party contests the Guidelines
sentence generally under § 3553(a) . . . or argues for
departure, the judge normally need say no more.”)
Finally, Accardi argues that the 40-year term was
substantively unreasonable because the court failed to give
reasonable weight to one of the statutory factors: “the need to
avoid unwarranted sentence disparities among defendants
with similar records who have been found guilty of similar
conduct.” 18 U.S.C. § 3553(a)(6). He notes that two other
targets of Detective Palchak’s undercover operation received
less jail time and substantially smaller periods of supervised
release, even though both targets transmitted more images to
Detective Palchak than Accardi did. See United States v.
Hedgpeth, 1:08-cr-00251-RWR; United States v. Slagle, 1:08-
cr-00308-HHK. We disagree.
The Supreme Court has held that courts of appeals may
presume that a Guidelines-compliant sentence is reasonable.
Rita, 551 U.S. at 350–51. This circuit applies that
8
presumption, see United States v. Dorcely, 454 F.3d 366, 376
(D.C. Cir. 2006), and Accardi fails to rebut it. Without more,
two allegedly similar cases constitute too small a sample size
to support a finding of an “unwarranted disparity” in
sentences, particularly when the district court explained that
the images distributed by Accardi were much more aggressive
and troubling than the images distributed by other offenders.
In light of this finding, it is far from clear that the disparity, if
any, was “unwarranted.” Moreover, a number of circuits have
upheld lifetime terms of supervised release for defendants
convicted of possession of child pornography based on the
same general concerns about recidivism, protection of the
public, and rehabilitation that animated the district court’s
decision here. See Daniels, 541 F.3d at 924 (“The district
court was within its discretion to conclude that a lifetime term
of supervised release was necessary to punish Daniels…, to
rehabilitate him, and to protect the public[.]”); United States
v. Cope, 527 F.3d 944, 952 (9th Cir. 2008) (basing sentence
on general concerns about recidivism and protection of the
public); United States v. Planck, 493 F.3d 501, 506 (5th Cir.
2007); Gonzalez, 445 F.3d at 819 (“The Court finds a
supervised release term of life will benefit society and reflects
the Court’s experience that persons rarely get better in these
types of cases.”). In light of the particular factual
circumstances of this case and the caselaw approving similar
sentences, we find the district court did not substantively err
in ordering a 40-year term of supervised release.
III
Under Section 3583(d), each condition of supervised
release must be reasonably related to the nature and
circumstances of the offense, the history and characteristics of
the defendant, deterrence of criminal conduct, protection of
the public, and treatment of the defendant’s correctional
9
needs. In applying these standards, “sentencing judges are
afforded wide discretion when imposing terms and conditions
of supervised release.” Sullivan, 451 F.3d at 895. Because
Accardi failed to lodge any objection to his sentence before
the district court, we review the district court’s imposition of
the terms and conditions of supervised release for plain error.
Id.We conclude the district court did not plainly err in
imposing any of the challenged conditions, though we do
subject the prohibition on patronizing any place where
pornography is available to a limiting construction to prevent
it from being impermissibly vague.
Accardi first challenges the condition barring him from
“patroniz[ing] any place where pornography or erotica can be
accessed or is expressly offered, obtained, or viewed,
including establishments where sexual entertainment is
available, adult bookstores, peep shows, or adult
entertainment establishments.” Transcript of Sentence at 31.
He claims the condition, as imposed, is overbroad, because it
gives his future probation officer the power to arbitrarily
define “pornography or erotica” and could be construed to
ban him from places not directly related to the goals of
sentencing, such as bookstores, newsstands, and even the
Library of Congress.
Accardi notes a governmental restriction can be
impermissibly vague “if it authorizes or even encourages
arbitrary and discriminatory enforcement.” Hill v. Colorado,
530 U.S. 703, 732 (2000). He points to United States v. Loy,
237 F.3d 251, 266 (3d Cir. 2001), which held that a
supervised release condition prohibiting the defendant from
possessing “pornography” was unconstitutionally vague.
“[W]ithout a more definitive standard to guide the probation
10
officer’s discretion,” the court warned, “there is a real danger
that the prohibition on pornography may ultimately translate
to a prohibition on whatever the officer personally finds
titillating.” Id.The condition imposed upon Accardi is different from the
one invalidated in Loy. The district court’s restriction on
Accardi’s access to “pornography and erotica” refers to those
terms as part of a more general prohibition on “patroniz[ing]
establishments where sexual entertainment is available,”
which is accompanied by examples illustrating the intended
scope of the prohibition. While we agree with Accardi that
the condition, if enforced using the broadest plausible
interpretation, could lead to constitutionally problematic
results, we do not believe the district court intended to prevent
Accardi from going to the library or buying a newspaper. To
avoid any constitutional problem—and to give effect to the
intent of the district court—we construe the ban as limited to
places like those enumerated in the condition’s “including”
clause, i.e., places in which adult entertainment is the primary
offering. At argument, the government agreed this is the
meaning intended, and the defendant agreed that so construed
the condition is not impermissibly vague.
Next, Accardi challenges the district court’s ban on
“possess[ion] or use [of] a computer that has access to any
online computer service at any location, including [his]
employment, without the prior approval of the probation
office,” claiming this condition is more restrictive than
necessary because it gives the probation officer “unchecked
power to censor his on-line speech” for the rest of his life.
Appellant’s Br. 21. We find that the condition does not
warrant reversal under plain error review.
11
In cases involving prosecution for “sex crimes,” which is
defined to include Accardi’s offense, the Sentencing
Guidelines suggest computer restrictions can be “reasonably
related” to the conduct underlying the offense. See U.S.S.G.
§ 5D1.3(d)(7) (2004). When faced with a substantially
similar internet restriction, we noted that “[t]his circuit has yet
to decide whether individuals convicted of sex crimes may
have their Internet usage conditioned on Probation Office
approval, and our sister circuits are divided on the issue.”
Sullivan, 451 F.3d at 895–96. Five years after deciding
Sullivan, this Court still has yet to decide the issue, and
disagreement among our sister circuits has continued. Some
courts have upheld qualified internet bans where, as here, the
defendant used a computer for distribution of child
pornography. See United States v. Boston, 494 F.3d 660, 668
(8th Cir. 2007). See also United States v. Bender, 566 F.3d
748, 751–52 (8th Cir. 2009) (upholding a restriction on
internet usage subject to permission from defendant’s
probation officer); United States v. Thielemann, 575 F.3d 265,
278 (3d Cir. 2009) (same); United States v. Rearden, 349 F.3d
608, 620–21 (9th Cir. 2003) (same); United States v. Zinn,
321 F.3d 1084, 1093 (11th Cir. 2003) (same). Others,
however, have found that such conditions impose a greater
restraint than was reasonably necessary. See, e.g., United
States v. Albertson, 645 F.3d 191, 199 (3d Cir. 2011)
(reversing internet restriction). In light of the circuit split on
this issue and this Court’s ongoing silence, the district court
did not plainly err by imposing a qualified ban on Accardi’s
ability to access the internet.
Likewise, Accardi’s challenge to the alcohol treatment
requirement fails because of a lack of relevant precedent in
this circuit and a split among the circuits that have evaluated
similar conditions of supervised release. The district court
ordered Accardi to “participate in and successfully complete a
12
residential and/or out-patient [alcohol] abuse treatment
program . . . as approved and directed by the probation
office.” Accardi now claims the court improperly delegated
the discretion to decide whether he will be subjected to a
residential rehabilitation program, which implicates
“significant liberty interests that the court may not delegate to
a probation officer.” Appellant’s Br. 25.
Accardi’s argument raises a question of first impression
for this court which would be inappropriate to address under
plain error review. Other circuits, however, have upheld
similar conditions. See United States v. Heckman, 592 F.3d
400, 410 (3d Cir. 2010) (permissible for district court to
impose mandatory treatment and to delegate choice of
treatment program); United States v. Cutler, 259 F. App’x.
883, 887 (7th Cir. 2008) (same); United States v. Allen, 312
F.3d 512, 515–16 (1st Cir. 2002) (permissible to delegate to
probation office “whether and for how long” defendant must
participate in mental health treatment). But see United States
v. Mike, 632 F.3d 686, 696 (10th Cir. 2011) (“any condition
that affects a significant liberty interest, such as one requiring
the defendant to participate in residential treatment, must be
imposed by the district court”); United States. v. Esparza, 552
F.3d 1088, 1091 (9th Cir. 2009) (decision regarding whether
treatment would be inpatient or outpatient could not be
delegated to the probation office). A district court cannot
“plainly” err on an issue that has so divided the circuits.
Sullivan, 451 F.3d at 895–96.
IV
Finally, Accardi argues that his trial counsel was
“ineffective for failing to object” to the three conditions he
now challenges. To succeed on an ineffective assistance of
counsel claim, the defendant must demonstrate both that his
13
counsel’s performance fell below an objective standard of
reasonableness and that this deficiency prejudiced his defense.
Strickland v. Washington, 466 U.S. 668, 688–92 (1984).
When raised for the first time on appeal, this court’s general
practice is to remand the claim for an evidentiary hearing
unless the trial record alone conclusively shows the defendant
either is or is not entitled to relief. United States v. Shabban,
612 F.3d 693, 698 (D.C. Cir. 2010).
Accardi claims it was objectively unreasonable for
counsel not to object to his sentence because the lengthy term
of supervised release, coupled with the allegedly overbroad
conditions of release, subjected him to “substantial
deprivations of fundamental rights.” Appellant’s Br. 31. He
further argues that counsel’s failure to object prejudiced this
appeal by forcing this court to review his sentence for plain
error, rather than abuse of discretion. We disagree.
It is clear without the need for further factual
development that counsel’s decision not to object to the
duration and conditions of supervised release reflected a
strategic decision not to challenge the terms of supervised
release in the hope of obtaining a shorter prison sentence. At
the sentencing hearing, Accardi himself indicated his
willingness to accept more restrictive terms of supervised
release in exchange for a reduced prison sentence. In light of
Accardi’s explicit statement that he would “take lifetime
supervised probation supervision,” it would be somewhat
perverse to find counsel constitutionally deficient for failing
to object to the imposition of that very condition. Rather, the
transcript of the sentencing hearing makes clear that counsel’s
failure to object reflected a reasonable strategic choice, which
when “made after thorough investigation of law and facts
relevant to plausible options [is] virtually unchallengeable.”
Strickland, 466 U.S. at 690.
14
V
For the foregoing reasons, the sentence imposed by the
district court is hereby
affirmed.