                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                              November 16, 2012
                 UNITED STATES COURT OF APPEALS A. Shumaker
                                            Elisabeth
                                                                  Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 11-7049
 v.                                          (D.C. No. 6:10-CR-00081-JHP-1)
                                                     (E. Dist. Okla.)
 TERRI AUSTIN YOUNG,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *

Before BRISCOE, Chief Judge, SEYMOUR and EBEL, Circuit Judges.



      Terri Austin Young pled guilty to one count of possession of child

pornography in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2). The district

court sentenced Mr. Young to seventy-eight months’ imprisonment and a lifetime

term of supervised release. On appeal, Mr. Young contends the length of his

supervised release is substantively unreasonable. We disagree and affirm.




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      “Reasonableness review is a two-step process comprising a procedural and a

substantive component.” United States v. Sayad, 589 F.3d 1110, 1116 (10th Cir.

2009) (internal quotation marks omitted). “Procedural reasonableness involves

using the proper method to calculate the sentence.” Id. (internal quotation marks

omitted). “[S]ubstantive reasonableness review broadly looks to whether the

district court abused its discretion in weighing permissible [18 U.S.C.] § 3553(a)

factors in light of the ‘totality of the circumstances.’” Id. at 1118 (quoting Gall v.

United States, 552 U.S. 38, 51 (2007)). Mr. Young challenges only the

substantive reasonableness of his supervised release term.

      Under the governing abuse of discretion standard, “a district court’s

sentence is substantively unreasonable only if it is arbitrary, capricious,

whimsical, or manifestly unreasonable.” Sayad, 589 F.3d at 1116 (internal

quotation marks omitted). As Mr. Young recognizes, this court has held that “a

sentence that is properly calculated under the Guidelines is entitled to a rebuttable

presumption of reasonableness.” United States v. Kristl, 437 F.3d 1050, 1054

(10th Cir. 2006); see also Rita v. United States, 551 U.S. 338, 347 (2007) (holding

“a court of appeals may apply a presumption of reasonableness to a district court

sentence that reflects a proper application of the Sentencing Guidelines”).

      The sentencing guidelines applicable here provide that the term of

supervised release for a sex offense may be up to life, USSG § 5D1.2(b)(2), and

further state that where “the instant offense of conviction is a sex offense, . . . the

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statutory maximum term of supervised release is recommended.” USSG §

5D1.2(b), p.s. (emphasis added); see also 18 U.S.C. § 3583(k) (authorizing

supervised release of five years to life for sex offense). We therefore presume the

lifetime term of supervised release given to Mr. Young is reasonable. Mr. Young

has the burden to convince us to the contrary.

      In sentencing Mr. Young, the district court explained its reasons for

applying the lengthy term of supervised release:

      [S]upervised release for life is not meant to be punishment, it’s meant
      to be of help to you. That means the probation office will be
      available to you for counseling, and that could be, on their
      recommendation, shortened if there is – I’m not sure the
      ramifications. You will be the first person I put on supervised release
      for life. I look at supervised release as a time when you have access
      to trained probation officers and who will give you additional
      treatment, counseling, as long as need be. You’re a young person. I
      don’t want to limit it to five years for that reason . . . .

      Supervised release is not going to be anything but something that I
      anticipate will help you . . . . [O]ne of the reasons I’m inclined for the
      life supervised release is nobody is ever terminated from treatment
      with any assurance that it’s worked. I mean, we’re just not there yet.
      And when I mean worked or whether the treatment has been valid or
      not, there’s just no way to validate. Hopefully, in your lifetime, there
      will be a validation and there will be – if healing is the correct word,
      there will be an opportunity for you to be healed of this problem.
      That’s the hope. You are a young person. I know that the sentence
      perhaps seems harsh. It’s not intended to be. And life supervised
      release is designed to assist you, hopefully, in your future as you live
      through this experience.

Rec., Vol. 2 at 55-56. In so doing, the court clearly communicated its recognition

of the difficulty of treating and curing this type of sex offender and its conclusion


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that a lifetime term of supervised release would promote Mr. Young’s

rehabilitation. 1

       In an attempt to rebut the presumption of reasonableness, Mr. Young first

contends the district court’s explanation did not demonstrate how the sentence

imposed would also “further the statutory goals of reflecting the seriousness of the

offense, promoting respect for the law, providing just punishment, affording

adequate deterrence to criminal conduct, and protecting the public from further

crimes.” Aplt. Br. at 4. While Mr. Young’s counsel was arguing at the sentencing

hearing for a downward variance from the guideline term of imprisonment,

however, he pointed out the following about supervised release:

       [W]e have these trained officers that will go out and make sure
       there’s no computer, will go out and make sure there’s no access to
       children, or go out and make sure there’s no Internet connection.
       That, Judge, serves the [statutory goals of] providing respect for the
       law and . . . protect[ing] the public.




       1
         The court also acknowledged that it has authority to shorten the term in
the future on the recommendation of the probation office. See id. at 55 (“[T]he
probation office will be available to you for counseling, and [supervised release
for life] could be, on their recommendation, shortened . . . .”); see also 18 U.S.C.
§ 3583(e)(1) (“The court may, after considering the factors set forth in section
3553 . . . terminate a term of supervised release . . . if it is satisfied that such
action is warranted by the conduct of the defendant released and the interest of
justice.”).



                                         -4-
Rec., Vol. 2 at 26 (emphasis added). In addition, after imposing the sentence,

including the supervised release term and all of its conditions, the district court

concluded by stating:

      This sentence is imposed pursuant to 18 U.S.C. Section 3553(a). . . .
      The sentence prescribed by this Court reflects the seriousness of the
      offense, promotes respect for the law, and provides just punishment
      for the offense. This sentence affords adequate deterrence to criminal
      conduct, protects the public from further crimes of this defendant, and
      provides correctional treatment for the defendant in the most effective
      manner. The Court has further determined that this sentence is
      sufficient, but not greater than necessary, to meet the objectives set
      forth in 18 U.S.C. Section 3553(a).

Id. at 58-59.

      Our review of the record convinces us that the district court considered the

guidelines and the statutory bases for imposing supervised release, in light of the

evidence, when it set the lifetime term. The court “set forth enough to satisfy [us]

that he has considered the parties’ arguments and has a reasoned basis for

exercising his own legal decisionmaking authority.” Rita v. United States, 551

U.S. at 356; see also id. (“[W]hen a judge decides simply to apply the Guidelines

to a particular case, doing so will not necessarily require lengthy explanation.”).

      Mr. Young submitted United States v. Inman, 666 F.3d 1001 (6th Cir.

2012), as supplemental authority supporting his argument that his sentence to a

life term of supervised release is unreasonable. However, in contrast to the instant

matter, the record did not demonstrate in Inman that the district court considered

any of the pertinent § 3553(a) factors in sentencing the defendant. Furthermore,

                                          -5-
the court failed to explain its reasons for sentencing the defendant to a life term of

supervised release over both parties’ recommendation for a ten-year term. Id. at

1004. As discussed above, the district court here both explicitly considered the

factors enumerated in § 3553(a) and explained why in its judgment a life term of

supervised release was necessary.

      While not dispositive, it is instructive that several of our sister circuits have

upheld as substantively reasonable a lifetime of supervision for a defendant

convicted of possessing child pornography. See United States v. Daniels, 541 F.3d

915, 923 (9th Cir. 2008) (upholding lifetime of supervision for possession of child

pornography in part because the policy statement accompanying U.S.S.G. §

5D1.2(b)(2) “reflects the judgment of Congress and the Sentencing Commission

that a lifetime term of supervised release is appropriate for sex offenders in order

to protect the public”); United States v. Planck, 493 F.3d 501, 505 (5th Cir. 2007)

(upholding life term of supervised release as reasonable sentence for conviction of

possession of child pornography); United States v. Presto, 498 F.3d 415, 420 (6th

Cir. 2007) (same); see also United States v. Williams, 636 F.3d 1229, 1234-35 (9th

Cir. 2011) (same for defendant convicted of receipt of child pornography); United

States v. Kennedy, 499 F.3d 547, 553 (6th Cir. 2007) (same for distribution of

child pornography stating, “Congress insists that lifetime supervision be available

to courts in sentencing sexual offenders . . . [because such] criminal conduct may

reflect deep-seated aberrant sexual disorders that are not likely to disappear within

                                          -6-
a few years of release from prison”) (internal quotation marks omitted); United

States v. Hayes, 445 F.3d 536, 537 (2d Cir. 2006) (holding that for a defendant

convicted of knowingly transporting child pornography in interstate commerce,

“[t]he district court’s imposition of lifetime supervised release was not

unreasonable and, in fact, is expressly recommended under the Sentencing

Guidelines.”); United States v. Moriarty, 429 F.3d 1012, 1024-25 (11th Cir. 2005)

(upholding lifetime supervision for defendant who was twenty-one years old at the

time he committed several child pornography-related crimes and who had himself

been sexually abused).

      Mr. Young contends further that a lifetime term of supervised release is

excessive in his case given that his sentence to seventy-eight months’

imprisonment was at the bottom end of the guidelines. But “[s]upervised release

fulfills rehabilitative ends, distinct from those served by incarceration,” United

States v. Johnson, 529 U.S. 53, 59 (2000), and the district court made clear it

viewed supervised release as a vehicle to promote Mr. Young’s rehabilitation.

      Mr. Young points out that the district court, by its own admission, had never

before imposed a lifetime term of supervised release, arguing that this disparity in

sentencing and Mr. Young’s young age – he was just twenty-seven years old at the

time of his sentencing – supports a shorter sentence. Although the district court

could have relied on those factors as rationales for imposing a shorter term of

supervised release, neither of those facts rebuts the presumption of reasonableness

                                         -7-
attached to Mr. Young’s within-guidelines sentence. Moreover, the court was

presented with evidence that Mr. Young had engaged in online chats with young

boys about meeting for sex. Although Mr. Young said no meetings ever occurred

and there is no evidence that they did, it is apparent that he had progressed beyond

just viewing child pornography. Given our standard of review, we cannot

conclude that Mr. Young’s life term of supervised release is substantively

unreasonable.

      For the foregoing reasons, we AFFIRM.

                                       ENTERED FOR THE COURT


                                       Stephanie K. Seymour
                                       Circuit Judge




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