United States v. Robert Legg , 713 F.3d 1129 ( 2013 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 5, 2012 Decided April 19, 2013
No. 11-3077
UNITED STATES OF AMERICA,
APPELLEE
v.
ROBERT LEGG,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:11-cr-00121-1)
Steven R. Kiersh, appointed by the court, argued the cause
and filed the brief for appellant.
David C. Rybicki, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Ronald C. Machen Jr.,
U.S. Attorney, and Elizabeth Trosman, Suzanne Grealy Curt,
and Julieanne Himelstein, Assistant U.S. Attorneys.
Before: GARLAND, Chief Judge, KAVANAUGH, Circuit
Judge, and RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Chief Judge GARLAND.
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GARLAND, Chief Judge: Appellant Robert Legg pled guilty
to persuading a person to travel in interstate commerce to
engage in criminal sexual activity. He was sentenced to 30
months’ incarceration and 180 months’ supervised release. On
appeal, Legg challenges supervised release conditions that relate
to his use of computers and the Internet. We affirm the
judgment of the district court.
I
On November 11, 2010, Legg accessed a social-networking
website using the screen name “BBDCcumpig.” 5/11/11 Tr. 20.
There, he found a person whose profile indicated interest in
sexual activity with young people and a desire to meet other “no
limit pervs” in Washington, D.C. Id. The profile in fact
belonged to Timothy Palchak, a Metropolitan Police Department
detective who has become a familiar figure in the opinions of
this circuit. See United States v. Accardi, 669 F.3d 340, 343
(D.C. Cir. 2012); United States v. Laureys, 653 F.3d 27, 29-30
(D.C. Cir. 2011); United States v. Love, 593 F.3d 1, 4 (D.C. Cir.
2010). Detective Palchak was monitoring the website in an
undercover capacity as part of a multi-jurisdictional child
exploitation task force.
Legg used the website to send a message to Palchak saying,
“no limit perv here, too,” and indicating an interest in incest and
sex with minors. 5/11/11 Tr. 20. During their online
conversation, Palchak claimed to have access to a thirteen-year-
old boy, and Legg expressed interest in meeting and engaging in
anal sex with the boy. Id.; 8/11/11 Tr. 27. Legg and Palchak
exchanged telephone numbers online and then had several
telephone conversations, during which Legg identified himself
as “Aleck” and further described his fantasies about having sex
with the boy. The two made arrangements to meet with each
other and the boy (who supposedly lived in Virginia) at an
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apartment in D.C., where they planned to have sex with the boy
and take drugs together. On the afternoon of November 12,
2010, Legg met Palchak and confirmed that he was Aleck. At
that point, Legg was arrested. See 5/11/11 Tr. 21, 25, 33-34.
On May 11, 2011, Legg pled guilty to the charge of
persuading a person to travel in interstate commerce to engage
in criminal sexual activity. See 18 U.S.C. § 2422(a). On August
11, 2011, the district court sentenced Legg to 30 months’
imprisonment and 180 months’ supervised release. The court
noted that Legg had been diagnosed with a variety of mental
health problems and had a long history of illegal drug use.
Given the defendant’s history and the nature and circumstances
of his crime, the court concluded that he posed a danger to the
community and would require mental health, drug abuse, and
sex offender treatment to “prevent any kind of recidivism.”
8/11/11 Tr. 29; see id. at 23-25, 32-33.
The court also imposed a list of supervised release
conditions in the interest of promoting Legg’s rehabilitation and
protecting the community from potential recidivism on Legg’s
part. These included: sex offender registration, substance abuse
and sex offender treatment, a ban on the possession of
pornography of any kind, a ban on alcohol and drug use, a
requirement that the defendant neither loiter in any area where
children frequently congregate nor take (without approval of the
probation office) a job that might cause him to come into contact
with children, and a ban on possession of any type of camera or
video recording device without probation office approval.
Judgment at 3-5.
Finally, and most relevant here, the district court imposed
a number of restrictions on Legg’s use of computers and the
Internet during his 180-month period of supervision. The court
forbade him from possessing or using a computer or any online
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service without prior approval of the probation office. It also
required him both to identify all computer systems and Internet-
capable devices to which he would have access, and to allow
random searches of, and installation of monitoring programs on,
those devices. And it limited him to the possession of only one
personal Internet-capable device. Id. at 4.
At sentencing, counsel for the defendant raised only one
objection relating to the computer- and Internet-related
conditions. Legg’s counsel conceded that most of those
conditions were “pretty standard in cases like this,” but
expressed concern about the single-device restriction in
particular, noting that “in today’s age . . . telephones [and
the] . . . tablets that have become so popular” can generally
access the Internet. 8/11/11 Tr. 49-50. The court clarified that
the single-device restriction extended only to “personal”
devices, and that this did not include workplace equipment. Id.
at 50. The court also said that the defendant could have a cell
phone, but would have to decide “whether he wants his Internet
access on the computer or on the cell phone” -- he could not
have Internet capability on both. Id. at 51. The court explained
that the purpose of the limitation was to make the probation
office’s monitoring of Legg’s Internet use feasible. Id. at 50.
Legg filed a timely appeal, challenging the conditions of
supervised release that relate to his computer access and use of
the Internet.
II
District courts are broadly authorized to impose conditions
of supervised release that are “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 needs.”
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Accardi, 669 F.3d at 346; see 18 U.S.C. § 3583(d)(1); id.§ 3553(a). In addition to this “reasonable relationship”
requirement, conditions of supervised release must “involve[] no
greater deprivation of liberty than is reasonably necessary” for
the purposes of deterrence, protection of the public from further
crimes of the defendant, and effective correctional treatment. 18
U.S.C. § 3583(d)(2); see id. § 3553(a); United States v. Sullivan,
451 F.3d 884, 895 (D.C. Cir. 2006). The conditions must also
be consistent with pertinent policy statements issued by the
United States Sentencing Commission pursuant to 28 U.S.C.
§ 994(a). 18 U.S.C. § 3583(d)(3).
Sentencing judges, although constrained by these statutory
limits, are nonetheless afforded wide discretion when imposing
terms and conditions of supervised release, see Accardi, 669
F.3d at 346; Sullivan, 451 F.3d at 895, and we review the
imposition of supervised release conditions only for abuse of
that discretion, see Love, 593 F.3d at 11; Sullivan, 451 F.3d at
895. Moreover, when a defendant fails to make a timely
objection before the district court and instead raises his
argument for the first time on appeal, we review only for plain
error. See Accardi, 669 F.3d at 346; Sullivan, 451 F.3d at 892.
On this appeal, Legg challenges all of the computer- and
Internet-related conditions of his supervised release. In the
district court, however, he objected to only one of those
conditions: the single-device restriction. Accordingly, both
Legg and the government agree that the proper standard of
review for the unobjected-to conditions is plain error, while the
standard for the single-device restriction is abuse of discretion.
See Oral Arg. Recording at 4:38-5:00 (statement of Legg’s
counsel); Gov’t Br. 11.
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III
1. Legg’s opening argument regarding the unobjected-to
release conditions is that they are unreasonable because “the
crime to which he pled occurred through the use of a telephone
and not a computer.” Legg Br. 1. By the end of his brief, he
qualifies this factual claim, arguing only that “the significant
majority of the charged crime occurred over the telephone.” Id.
at 7 (emphasis added). But it is hardly necessary to precisely
characterize the role that a computer (and the Internet) played in
Legg’s offense. A policy statement issued by the Sentencing
Commission recommends that, for offenses including Legg’s,
the sentencing court impose “[a] condition limiting the use of a
computer or an interactive computer service in cases in which
the defendant used such items.” U.S. SENTENCING GUIDELINES
MANUAL § 5D1.3(d)(7)(B); see id. § 5D1.2, Application Note 1.
And this court has stated that such limitations “may be
appropriate for those who use the Internet to initiate or facilitate
the victimization of children.” Love, 593 F.3d at 12 (internal
quotation marks omitted); Laureys, 653 F.3d at 35 (finding no
plain error in Internet restrictions where the defendant “used the
internet to facilitate criminal sexual conduct with minors”).
There is no dispute that Legg “used” a computer in this
case, and that he used it both to “initiate” and “facilitate” his
offense. Legg used a computer to access the social-networking
website on which he found Detective Palchak’s profile, used it
to reply to Palchak’s posting seeking “other no limit pervs in
D.C.,” used it to converse with Palchak about “young” sexual
encounters, used it to tell Palchak that he was interested in
meeting him for the purpose of engaging in anal intercourse with
a 13-year-old boy whom Palchak had mentioned, and used it to
exchange telephone numbers with Palchak to coordinate their in-
person meeting. 5/11/11 Tr. 19-21, 27-29. Indeed, if Legg had
not used a computer to log into the website on which he met
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Detective Palchak, the offense for which he was convicted
would not have occurred at all.
The fact that the final communications arranging the in-
person meeting took place over the telephone does not detract
from this conclusion. In Laureys, a case in which the defendant
had likewise fallen for Detective Palchak’s online ruse, we
found no plain error in a challenge to extensive computer-related
conditions of supervised release. 653 F.3d at 29-30, 35. That
case cannot meaningfully be distinguished from this one along
the lines Legg suggests, as there, too, the final meeting
arrangements were made in a telephone call between Palchak
and the defendant. Id. at 30.
Legg tries to analogize his case to United States v.
Burroughs, in which this circuit vacated as plainly erroneous a
requirement that the defendant submit to probation office
monitoring of his computer use and keep a daily log of his
personal Internet activity. 613 F.3d 233, 242-44 (D.C. Cir.
2010). But in Burroughs, the defendant -- who sexually abused
a teenage girl and introduced her to prostitution -- “did not use
a computer to facilitate his crimes” in any way. Id. at 242.
Because Legg did use a computer, Burroughs is simply
inapposite.
It is true, as Legg points out, that the district court declined
to increase his sentence by imposing a two-level Sentencing
Guidelines enhancement for use of a computer, see U.S.
SENTENCING GUIDELINES MANUAL § 2G1.3(b)(3), noting that
the “meat of the offense w[as] done on the phone,” 8/11/11 Tr.
8-9. (Although the court did characterize its decision not to
impose the enhancement as “a little close.” Id. at 9.) At the
same time, however, the court noted that “the decision to meet
[wa]s on the computer,” id., and told Legg that it was
“appropriate to have these restrictions” because he had “use[d]
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. . . the computer to communicate and initiate the offense,” id. at
36. See also id. at 37 (“I am restricting you based on the fact
that that is the way you communicated with the undercover
officer.”). Since the Supreme Court’s decision in United States
v. Booker, 543 U.S. 220, 245 (2005), the Guidelines have been
advisory only, and there is no abuse of discretion in declining to
increase a defendant’s sentence on account of his computer use
while simultaneously concluding that such use warrants the
imposition of limits on the defendant’s access to a computer
after his release. A fortiori, there is no plain error.
2. In the district court, Legg objected to the condition
limiting him to only one Internet-capable device on the ground
that it was too restrictive. On appeal, he adds no texture to that
objection. We understand the objection, however, to constitute
a claim that the limitation fails the requirement that conditions
of supervised release must “involve[] no greater deprivation of
liberty than is reasonably necessary” for the purposes of
deterrence, protection of the public from further crimes of the
defendant, and effective correctional treatment. 18 U.S.C.
§ 3583(d)(2).
The district court explained that the one-device limit was
necessary to ensure that the probation office would be able to
effectively monitor Legg’s Internet use at reasonable cost.
8/11/11 Tr. 50-51. Given that the Internet was Legg’s avenue of
choice for seeking out a victim, there is no doubt that such
monitoring is itself reasonably related to the nature and
circumstances of Legg’s offense, to deterring criminal conduct,
and to protecting the public from further crimes. Cf. Love, 593
F.3d at 12 (another “Palchak” case in which the court found a
prior approval requirement for Internet access “properly tailored
to the circumstances of the offense and . . . reasonably necessary
to deter future misconduct and to protect children”). Such
monitoring would plainly be more difficult if the defendant had
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multiple Internet-capable devices at his disposal. And Legg
offers no argument at all against the district court’s
determination that, if it did not restrict the number of devices to
which he had access, it would be too difficult for the probation
office to monitor him.
The single-device limitation does not, of course, bar Legg
from using computers or the Internet altogether. Moreover, the
court made clear that, although Legg is limited to only one
“personal” Internet-capable device, the limitation does not apply
to computers or other devices he might use at work. 8/11/11 Tr.
50. Nor, the court said, does it bar him from having a cell phone
in addition to a home computer, as long as only one of them is
Internet-enabled. Id. And while the day may soon come when
it is impossible to obtain a telephone that is not Internet-enabled,
that time has not yet arrived. See id. (statement by probation
officer that “there are plans that can be set up so he can have a
[cell] phone that does not have Internet capabilities”).
Although sentencing courts can and should seek to tailor
computer-related supervised release conditions with an eye to
the possibility of technological change, the fact remains that
judges are not oracles of technological development. “An
Internet restriction that today imposes ‘no greater deprivation of
liberty than is reasonably necessary’ to deter illegal conduct
may, by the time [the defendant] is released, be either wholly
inadequate or entirely too burdensome.” Love, 593 F.3d at 12.
If the latter transpires, Legg remains free throughout his term of
supervised release to ask the district court to modify the
challenged conditions in light of changed circumstances, which
the court is statutorily authorized to do. 18 U.S.C. § 3583(e)(2).
But there are no grounds for finding that the district court
abused its discretion in imposing the single-device restriction on
the record the court had before it.
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IV
For the foregoing reasons, the sentence imposed by the
district court is
Affirmed.