United States v. Nicolai Quinn

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-2260
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
N ICOLAI D. Q UINN,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 12-CR-04-WMC-01—William M. Conley, Chief Judge.
A RGUED O CTOBER 2, 2012—D ECIDED O CTOBER 18, 2012
Before E ASTERBROOK, Chief Judge, and P OSNER and
R OVNER, Circuit Judges.
E ASTERBROOK, Chief Judge. Nicolai Quinn pleaded
guilty to possessing child pornography, 18 U.S.C.
§2252(a)(4)(B), and was sentenced to 97 months’ impris-
onment. His plea agreement contains a promise not to
appeal the conviction and length of imprisonment. But
Quinn did not promise to refrain from appealing his
sentence of supervised release. He contends that the
2 No. 12-2260
district judge erred by sentencing him to supervision
for life.
Both the Criminal Code and the Sentencing Guidelines
authorize lifetime supervised release for violations of
§2552. 18 U.S.C. §3583(k); U.S.S.G. §5D1.2(b)(2). More-
over, the Sentencing Commission recommends “the
statutory maximum term of supervised release” for
every sex offense. See §5D1.2(b) hanging paragraph. Yet
although Quinn’s sentence is within the Guidelines
range and entitled to a presumption of substantive rea-
sonableness, see Rita v. United States, 551 U.S. 338(2007); United States v. Mykytiuk, 415 F.3d 606 (7th
Cir. 2005), a judge still must consider a defendant’s
serious arguments for a sentence below the Sentencing
Commission’s recommendations. See, e.g., United States
v. Villegas-Miranda, 579 F.3d 798 (7th Cir. 2009); United
States v. Tahzib, 513 F.3d 692, 695 (7th Cir. 2008).
Quinn asked the judge to choose a ten-year term of
supervised release. He submitted a forensic psycholo-
gist’s evaluation, which concluded that he has a lower-
than-normal risk of recidivism. He also submitted
the testimony that two psychologists (Michael Seto
and Richard Wollert) recently had presented to the
Sentencing Commission regarding the recidivism rate
for persons convicted of child-pornography offenses.
The judge discussed the forensic psychologist’s evalua-
tion briefly when explaining why he chose a sentence
of 97 months, but he did not discuss Seto’s or Wollert’s
views. Indeed, the district judge did not discuss either
the length of supervision or the terms that Quinn
would be required to follow while under supervision.
No. 12-2260 3
The prosecutor has confessed error, and we agree with
the prosecutor’s conclusion that a district judge must
explain important decisions such as the one at issue
here. On remand the judge should consider not only
how Quinn’s arguments about recidivism affect the
appropriate length of supervised release, but also the
interaction between the length and the terms of super-
vised release. The more onerous the terms, the shorter
the period should be. One term of Quinn’s supervised
release prevents contact with most minors without
advance approval. Quinn has a young child, whom he
has never been accused of abusing. Putting the parent-
child relationship under governmental supervision for
long periods (under this judgment, until the son
turns 18) requires strong justification.
Our research has turned up only a few decisions
that discuss the relation between the terms and length
of supervised release. The third circuit has observed
that the more onerous the term, the greater the justifica-
tion required—and that a term can become onerous
because of its duration as well as its content. See United
States v. Miller, 594 F.3d 172, 187–88 (3d Cir. 2010). The
court said that when discussing a lifetime limit on
access to the Internet, a limit that this circuit already
has treated as in need of powerful justification even
for short durations. See United States v. Scott, 316 F.3d 733(7th Cir. 2003) (judges should not give probation officers
control over what convicted persons can read on the
Internet). Rules that allow public officials to regulate
family life likewise call for special justification, and
lifetime regulatory power is hard to support when the
4 No. 12-2260
defendant has not been convicted of crimes against his
family or other relatives. Other terms of Quinn’s super-
vised release also may require strong justification
when extended for a lifetime.
Although district judges can reduce the length of super-
vised release, or modify its terms, at any time, 18 U.S.C.
§3583(e)—an opportunity that may lead a judge to
think that uncertainties at the time of sentencing should
be resolved in favor of a long (but reducible) period—still
this is a subject that requires an explicit decision by
the judge after considering the defendant’s arguments.
The judge also should consider the possibility of setting
sunset dates for some of the more onerous terms, so
that Quinn can regain more control of his own activities
without needing a public official’s advance approval,
while enough supervision remains to allow interven-
tion should Quinn relapse.
The term of supervised release is vacated, and the
case is remanded for resentencing on that issue only.
10-18-12