United States v. Stuart Adams

United States Court of Appeals
For the Eighth Circuit
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No. 20-2531
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Stuart Adams
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Eastern District of Arkansas - Central
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Submitted: April 16, 2021
Filed: September 14, 2021
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Before SMITH, Chief Judge, COLLOTON and ERICKSON, Circuit Judges.
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ERICKSON, Circuit Judge.
Stuart Adams pled guilty to distribution of child pornography, in violation of
18 U.S.C. § 2252(a)(2), and was sentenced to a term of imprisonment of 180 months
to be followed by 5 years of supervised release with various conditions. Adams
appeals, claiming his sentence was both substantively unreasonable and the district
court1 abused its discretion in imposing certain special conditions of supervised
release. We affirm the sentence and the imposition of the challenged conditions, but
remand for the district clerk of court to amend the judgment as it relates to certain
conditions of supervised release.
I. BACKGROUND
On February 21, 2019, an undercover FBI agent posted an advertisement on
Craigslist offering children for sexual purposes. Adams responded, expressing
interest in meeting the fictional 8-year old daughter for sexual intercourse. Adams
also sent the undercover agent two videos and one image of sexually explicit material
involving a child. Law enforcement obtained a search warrant and subsequently
seized a cellphone and multiple hard drives from Adams’ residence containing videos
and images of sexually explicit material involving children.
Adams pled guilty to one count of distribution of child pornography pursuant
to a written plea agreement. At sentencing, the district court determined the advisory
Guidelines range was 97 to 121 months’ imprisonment. Both parties requested a
within-Guidelines sentence but the district court varied upwards, imposing a
180-month term of imprisonment because of Adams’ attempted hands-on offense
against the fictional 8-year old girl. The district court also imposed a number of
special conditions of supervised release. Adams appeals.
II. DISCUSSION
Adams raises two claims on appeal: (1) his term of imprisonment is
substantively unreasonable, and (2) the district court erred in imposing certain special
1
The Honorable James M. Moody, Jr., United States District Judge for the
Eastern District of Arkansas.
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conditions of supervised release. The government moved to dismiss Adams’ appeal
of the special conditions, arguing that Adams waived his right to appeal those
conditions in his plea agreement. We take each issue in turn.
A. Substantive Reasonableness
“We review the substantive reasonableness of a sentence for abuse of
discretion.” United States v. Barthman, 983 F.3d 318, 321 (8th Cir. 2020). “A
district court abuses its discretion when it (1) fails to consider a relevant factor that
should have received significant weight; (2) gives significant weight to an improper
or irrelevant factor; or (3) considers only the appropriate factors but in weighing those
factors commits a clear error of judgment.” United States v. Feemster, 572 F.3d 455,
461 (8th Cir. 2009) (en banc) (citation omitted). This is such a narrow and deferential
standard that “it will be the unusual case when we reverse a district court
sentence—whether within, above, or below the applicable Guidelines range—as
substantively unreasonable.” Id. at 464 (citation omitted).
The district court explained its sentence was based on information in Adams’
presentence report (“PSR”), counsel’s arguments, and the sentencing factors set forth
in 18 U.S.C. § 3553. The district court specifically noted it considered factors
weighing in favor of Adams, but found an upwards variance was warranted due to the
seriousness of Adams’ plan to have sexual intercourse with an 8-year-old girl. While
Adams argues the district court, in imposing the 59-month variance, relied on factors
already taken into account by the Guidelines, his argument misapprehends the record
and the court’s reasons for the above-Guidelines sentence.
Adams pled guilty to a distribution charge, which does not include as an
element attempted hands-on sexual abuse of a child. And, while his offense level was
increased due to certain specific offense characteristics, these also did not take into
account Adams’ attempted hands-on abuse. Even if the Guidelines considerations
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had tangentially taken into account hands-on conduct, a sentencing court may vary
upwards on factors already considered in the Guidelines. See United States v.
Luscombe, 950 F.3d 1021, 1032 (8th Cir. 2020).
Adams also argues the district court failed to consider his lack of criminal
history and steady employment history. But these points were raised at sentencing,
included in the PSR, and considered by the district court. We find no abuse of
discretion because the district court gave greater weight to the aggravating factor of
an intended hands-on offense than it did to the mitigating factors argued by Adams.
The record reflects the district court considered all relevant factors, did not
consider any irrelevant or improper factors, and imposed a sentence only after
carefully weighing all the appropriate information before it. The sentence is not
substantively unreasonable.
B. Special Conditions of Supervised Release
Before addressing the merits of Adams’ challenge to the special conditions of
supervised release, we first consider the government’s argument that Adams waived
his right to appeal those conditions in the plea agreement.
When reviewing a purported waiver, we consider whether: (1) the appeal falls
within the scope of the waiver; (2) both the waiver and plea agreement were entered
into knowingly and voluntarily; and (3) enforcing the waiver would not result in a
miscarriage of justice. United States v. Guice, 925 F.3d 990, 992 (8th Cir. 2019)
(citing United States v. Andis, 333 F.3d 886, 889–90 (8th Cir. 2003) (en banc)). The
government bears the burden of proving that the plea agreement clearly and
unambiguously waives a defendant’s right to appeal, so we construe any ambiguities
against the government. Andis, 333 F.3d at 890.
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Adams’ plea agreement “reserve[d] the right to appeal the sentence if [he]
ma[de] a contemporaneous objection because the sentence imposed is above the
Guideline range that is established at sentencing.” The parties agree these conditions
precedent were met. They dispute whether an appeal of the special conditions of
supervised release falls within the scope of the waiver. The government contends
Adams’ right to appeal is limited to his term of imprisonment while Adams argues
he can challenge the entire sentence on appeal.
We have held that “[t]he term of supervised release is a part of a defendant’s
sentence.” United States v. James, 792 F.3d 962, 967 (8th Cir. 2015). Subsection (a)
of 18 U.S.C. § 3583—the statute governing terms of supervised release—provides
that “[t]he court, in imposing a sentence to a term of imprisonment for a felony or a
misdemeanor, may include as a part of the sentence a requirement that the defendant
be placed on a term of supervised release after imprisonment.” By conditionally
reserving the right to appeal “the sentence,” Adams conditionally reserved the right
to appeal the special conditions of supervised release. Even if we found the plea
agreement was ambiguous on this point, we would read the plea agreement in favor
of Adams’ appellate rights.
When imposing a sentence, a 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). United States v. Mayo, 642 F.3d 628, 631 (8th Cir. 2011) (per
curiam). Section 3583(d) provides that any special condition: (1) “must be
reasonably related to the nature and circumstances of the offense and the history and
characteristics of the defendant, deterrence of criminal conduct, protection of the
public, and treatment of the defendant’s correctional needs”; (2) cannot deprive the
defendant of liberty “greater than reasonably necessary for the purposes of deterring
criminal conduct, protecting the public from the defendant, and treating the
defendant’s correctional needs”; and (3) “must be consistent with pertinent
Sentencing Commission policy statements.” Id.-5-
Adams argues the district court erred in imposing four special conditions of
supervised release. He also contends the written judgment as to two additional
conditions is inconsistent with the court’s oral judgment. While we find the district
court acted within its discretion when imposing the special conditions, the written
judgment is not entirely consistent with the district court’s oral pronouncement at
sentencing. For the reasons explained below, we direct the district court to amend the
judgment consistent with this opinion.
Adams challenges Special Condition 15, which forbids him from viewing or
possessing pornography, including adult pornography. Because Adams failed to
object at sentencing, we review for plain error. United States v. Osman, 929 F.3d
962, 966 (8th Cir. 2019). Our court has repeatedly upheld similar provisions in the
past. United States v. Thompson, 653 F.3d 688, 694 (8th Cir. 2011); see also United
States v. Wiedower, 634 F.3d 490, 496–97 (8th Cir. 2011). The imposition of Special
Condition 15 was not error, plain or otherwise.
Adams also challenges Special Condition 16, which bans him from entering
“adult bookstores, strip clubs, or adult sex-themed entertainment businesses, or any
establishments where such material or entertainment is available.” Adams objected
to Special Condition 16 at sentencing; therefore, we review for abuse of discretion.
United States v. Mays, 993 F.3d 607, 620 (8th Cir. 2021). When confronted with
defendants convicted of child pornography offenses, we have routinely affirmed bans
on entering certain adult-themed establishments, irrespective of whether the relevant
conduct involved such establishments. See United States v. Sebert, 899 F.3d 639,
641 (8th Cir. 2018) (per curiam); United States v. Muhlenbruch, 682 F.3d 1096, 1105
(8th Cir. 2012). We have found these conditions reasonably related to the nature of
the offense, and do so again here.
However, Adams also argues, and the government concedes, that read literally
Special Condition 16 would prohibit Adams from entering businesses like
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convenience stores and book stores. The government acknowledged this was not the
intent of the condition. We direct that the judgment be corrected to reflect the district
court’s clear intent that Special Condition 16 be limited to establishments whose
primary business involve sex-themed material or entertainment.
Adams next challenges Special Condition 23, which prohibits him from
“us[ing] any sexually stimulating drug unless specifically prescribed by a doctor who
has been notified of the defendant’s sex offender status.” Adams failed to object to
this condition at sentencing, so we once again review for plain error. Osman, 929
F.3d at 966. While raising the issue generally, Adams has made no specific argument
directed at Special Condition 23 other than it, together with Special Conditions 15
and 16, is “unduly restrictive and overly broad.” Such a vague claim is insufficient
to meet his burden of establishing plain error. See United States v. Wisecarver, 644
F.3d 764, 775 (8th Cir. 2011) (to show plain error “the appellant must show that the
district court committed an error that is clear under current law, that the error affects
his substantial rights, and that the error seriously affects the fairness, integrity, or
public reputation of judicial proceedings” (citation omitted)).
Adams also challenges Special Condition 24, which states, in relevant part:
“[t]he defendant must not have any direct contact with any child he knows or
reasonably should know to be under the age of 18, including his own children,
without the permission of the probation officer.” Because Adams objected to this
condition below, we review for abuse of discretion. United States v. Hobbs, 710 F.3d
850, 855 (8th Cir. 2013).
Adams is the father of five children, one of whom will likely still be under the
age of 18 at the time of his release from prison. Adams argues the circumstances in
his case were not sufficiently compelling for the district court to restrict his right to
have contact with his own children. In child pornography cases, “[d]espite the
constitutional sensitivity of such restrictions, we have repeatedly upheld conditions
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requiring defendants to receive permission from a probation officer before contacting
their own children.” Id. at 854 (collecting cases). In Hobbs, the Court noted that we
must “scrutinize more carefully conditions restricting the defendant’s right to contact
his own children.” Id. at 853–54. Even under the more highly individualized inquiry
set forth in Hobbs, the condition is particularly justified here because Adams
attempted to meet the undercover agent’s fictional 8-year-old daughter for sexual
intercourse. Special Condition 24 is reasonably related to the nature and
circumstances of the offense and Adams’ history and characteristics.
In addition, we have highlighted the difference between conditions that entirely
prohibit certain contact with minors and those that allow contact with the permission
of the probation office. See, e.g., United States v. Simons, 614 F.3d 475, 482 (8th
Cir. 2010); United States v. Mickelson, 433 F.3d 1050, 1057 (8th Cir. 2006). The
latter are generally more narrowly tailored to “involve[] no greater deprivation of
liberty than is reasonably necessary” to protect the public. 18 U.S.C. § 3583(d)(2).
This is the case here. We find no abuse of discretion in imposing Special Condition
24.
As a final matter, Adams seeks amendment of the judgment as it pertains to
Special Conditions 14 and 24 to conform the district court’s written judgment with
its oral judgment. In the written judgment, both conditions mention only the
probation office and not the court, whereas at sentencing the district court ordered
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that it may also make those determinations.2 The government concedes that, “[w]here
an oral sentence and the written judgment conflict, the oral sentence controls.”
United States v. Durham, 618 F.3d 921, 934 (8th Cir. 2010) (citation omitted). The
district court is obligated to revise these conditions in the written judgment so they
are consistent with its oral judgment.
III. CONCLUSION
We affirm Adams’ sentence and the imposition of the challenged conditions
of supervised release but remand to the clerk of district court to amend the written
judgment as it relates to Special Conditions 14, 16, and 24 in a manner consistent
with this opinion.
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2
Specifically, Special Condition 24 of the written judgment indicates that
Adams cannot have contact with any children, including his own, without the
permission of the probation officer, but the district court also orally added the caveat
that Adams would be allowed to have contact with his children if the court
determined that he is not a danger to them after reviewing his psychosexual
evaluation.
Special Condition 14 of the written judgment states that Adams must
participate in and pay for the cost of sex offender treatment, with limitations based
on his ability to pay as determined by the probation office. In its oral judgment, the
district court provided that both itself or the probation office could determine Adams’
ability to pay.
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