                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-2324
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the Northern
                                        * District of Iowa.
Thomas Mickelson,                       *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: November 15, 2005
                                Filed: January 6, 2006
                                 ___________

Before MURPHY, McMILLIAN, and GRUENDER, Circuit Judges.
                          ___________

MURPHY, Circuit Judge.

       Thomas Mickelson pled guilty to receiving child pornography in violation of
18 U.S.C. § 2252(a)(2)(A). The district court1 sentenced him to 51 months
imprisonment and three years of supervised release with a number of special
conditions. Mickelson appeals, challenging the reasonableness of his sentence and the
validity of several terms of his supervised release. We affirm.




      1
        The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
       Mickelson was charged on December 16, 2003 with one count of receiving
child pornography, in violation of 18 U.S.C. § 2252(a)(2)(A) (count 1), and one count
of possessing child pornography in violation of 18 U.S.C. § 2252(a)(4)(B) (count 2).
He pled guilty to count 1 on December 10, 2004 pursuant to a plea agreement. At the
sentencing hearing he stipulated to a total offense level under the advisory guidelines
of 22, a criminal history category of I, and a guideline range of 41 to 51 months.
Mickelson's counsel suggested that a sentence at the bottom end would be more
appropriate but asked the court to sentence him "somewhere within that range."

       The district court chose to sentence Mickelson at the top of the guideline range.
The court considered the factors in 18 U.S.C. § 3553(a) before choosing a sentence
of 51 months, based on the seriousness of Mickelson's offense, his admission that he
had sent images to other persons, his use of a computer in receiving images, and the
fact that some of the images depicted children under the age of 12 and sadistic or
masochistic violence. Although the district court also recognized potentially
mitigating circumstances, including Mickelson's history of serious mental health
issues, his alcoholism, and his physical disability, it declined to reduce his sentence,
at least in part because the court found no evidence of a causal relationship between
these factors and his offense.

       The district court also sentenced Mickelson to three years of supervised release
with a number of special conditions to which his counsel objected. Special Conditions
3 and 4 required Mickelson to participate in the Remote Alcohol Testing Program or
Video Information Capture and to be placed on the Global Positioning Satellite (GPS)
system for tracking at the discretion of the probation office. Special Condition 6
required Mickelson to receive mental health counseling if his probation officer
deemed it appropriate. Special Condition 12 required Mickelson to have no contact
with children under the age of 18 without the prior written consent of the probation
office.



                                          -2-
       On appeal, Mickelson contends that his 51 month sentence was unreasonable,
that Special Conditions 3, 4, and 6 constituted an improper delegation of the court's
authority to the probation office, and that Special Condition 12 was "unnecessary and
unreasonable" and therefore an abuse of discretion.

       Mickelson first challenges his sentence as unreasonable. He argues that he was
a "fringe offender" in the world of child pornography and the district court therefore
made a "clear error in judgment" by sentencing him at the top of the advisory
guideline range. He also contends that the court abused its discretion by focusing on
whether his mitigating circumstances were causally related to his instant offense.

       The government's initial argument is that this court lacks jurisdiction to review
Mickelson's sentence because it was within the guideline range and a sentence within
the guideline range is not listed as one of the bases for appellate review in 18 U.S.C.
§ 3742(a). Its second argument is that Mickelson waived his right to challenge his
sentence because it was within the guideline range to which he had agreed. Finally,
the government contends that Mickelson's sentence was presumptively reasonable
because it was within the guideline range, the district court did not err in calculating
the guidelines, and it considered all of the relevant factors under 18 U.S.C. § 3553(a).

                                           I.

       We have already rejected the government's jurisdictional argument in United
States v. Frokjer, 415 F.3d 865, 875 n.3 (8th Cir. 2005), and United States v. McCully,
407 F.3d 931, 933 n.2 (8th Cir. 2005). In those cases we held that an unreasonable
sentence would be "in violation of law" and subject to review under 18 U.S.C. §
3742(a)(1) regardless of whether it was within the guideline range. In many other
cases subsequent to United States v. Booker, 125 S.Ct. 738 (2005), we have conducted
a reasonableness review of sentences within the guideline range. See, e.g., United
States v. Marcussen, 403 F.3d 982, 985 (8th Cir. 2005); United States v. Ameri, 412

                                          -3-
F.3d 893, 901 (8th Cir. 2005); United States v. Marshall, 411 F.3d 891, 897 (8th Cir.
2005). The government cites no post Booker case law in support of its jurisdictional
argument.

       Although we are bound by our precedents in Frokjer and McCully and only the
court en banc could overturn them, see Biello v. Kum & Go, LLC., 374 F.3d 656, 661
n.4 (8th Cir. 2004), we remain free to analyze the argument which the government
continues to raise. Since its argument is based on statutory wording, we start by
examining the language of the Sentencing Reform Act of 1984, 18 U.S.C. § 3551 et
seq. See Musick, Peeler & Garrett v. Employers Ins. of Wausau, 508 U.S. 286, 302
(1993) ("The starting point in every case involving construction of a statute is the
language itself.") (internal quotations omitted); United States v. McAllister, 225 F.3d
982, 986 (8th Cir. 2000) ("(O)ur starting point in interpreting a statute is always the
language of the statute itself. If the plain language of the statute is unambiguous, that
language is conclusive...If, on the other hand, the language of the statute is ambiguous,
we should consider the purpose, the subject matter, and the condition of affairs which
led to its enactment.") (internal quotations omitted).

       Under 18 U.S.C. § 3742(a) of the Sentencing Reform Act (the Act), appellate
review was authorized for challenges by defendants if the sentence 1) was imposed
in violation of law; 2) resulted from incorrect application of the guidelines; 3) was
greater than the sentence specified under the applicable guideline range; or 4) was
imposed for an offense for which there is no sentencing guideline and is plainly
unreasonable. The parties in this case agree that the district court did not err in
applying the guidelines and that Mickelson's sentence was not above the guideline
range; his sentencing appeal thus does not fit within the second or third provisions.
A sentence within the guideline range is not explicitly mentioned in § 3742(a), and the
government suggests that the plain language of the statute does therefore not provide
for appellate review over such a sentence.



                                          -4-
       Section 3742(a)(1) does not define what is meant by a sentence "imposed in
violation of law," and the language itself can be read to cover Mickelson's sentencing
appeal although it does not do so explicitly. In this respect the statutory language is
ambiguous. Our rule prior to Booker was that courts lacked jurisdiction to review a
sentence "within a properly determined guideline range" unless there was some
constitutional problem, United States v. Smotherman, 326 F.3d 988, 989 (8th Cir.
2003), and other circuits interpreted the statute similarly. See, e.g., United States v.
Tucker, 892 F.2d 8, 11 (1st Cir. 1989); United States v. Colon, 884 F.2d 1550, 1553
(2d Cir. 1989). The present ambiguity in the phrase "in violation of law" results from
Booker's holding that the guidelines are no longer mandatory. See 125 S.Ct. at 764.
This holding transformed the federal guideline system from a mandatory regime to a
system of advisory guidelines, implicitly requiring renewed consideration of which
sentences are "imposed in violation of law."

       We accordingly turn to an examination of the purpose of the Act and its
legislative history. Under the Act as originally written and prior to Booker, the federal
sentencing guidelines were mandatory and a sentence within the guideline range was
required unless there was a valid basis for departure. See, e.g., United States v. Mora-
Higuera, 269 F.3d 905, 913 (8th Cir. 2001). In order to overcome the sixth
amendment infirmities identified in Justice Stevens' majority opinion in Booker, 125
S.Ct. at 749-50, Justice Breyer's remedial opinion looked to the structure and purpose
of the Act to determine what Congress would have intended as a remedy. Id. at 761-
62. The Court then excised two provisions of the Act, eliminating the mandatory
nature of the guidelines and changing the de novo standard of appellate review to
review for reasonableness. Id. at 764-65. We likewise look to the legislative history
to inform our understanding of § 3742(a) and to determine whether a sentence within
the applicable guideline range "was imposed in violation of law" if it was
unreasonable. 18 U.S.C. § 3742(a)(1).




                                          -5-
       By passage of the Act Congress greatly expanded appellate review of
sentencing decisions by federal district courts. See S. Rep. No. 98-225, at 150 (1983).
To overturn a sentence prior to the Act defendants had to show that it was so
disproportionate to the offense as to violate the Eighth Amendment, Rummel v.
Estelle, 445 U.S. 263, 271 (1980), or that there was some other procedural infirmity.
See, e.g., North Carolina v. Pearce, 395 U.S. 711, 725-26 (due process violated by
vindictive imposition of more severe sentence following successful appeal); see also
Gore v. United States, 357 U.S. 386, 393 (1958) ("Whatever views may be entertained
regarding severity of punishment ...these are peculiarly questions of legislative
policy."). With the Act Congress provided for sentencing appeals by defendants under
§ 3742(a), as well as by the government under § 3742(b).

       To the authors of the Act the chief flaws of the old system were the "almost
absolute (judicial) discretion to impose any sentence legally available," S. Rep. No.
98-225, at 150 (1983), and the resulting lack of consistency in sentences imposed by
different federal district courts for similar offenses. Id. at 41-46. The Act's provisions
for appellate review of federal sentencing decisions were intended to reduce disparity
in sentencing while also serving as a means to identify potential problems with the
guidelines that could be remedied by the United States Sentencing Commission. Id.
at 151. Appellate review would "focus attention on those sentences whose review is
crucial to the functioning of the sentencing guidelines system, while also providing
adequate means for correction of erroneous and clearly unreasonable sentences." Id.
at 155. The Act would also require the sentencing judge to give "reasons for the
sentence imposed" to assist review of the "reasonableness of a sentence outside the
(mandatory) guidelines." Id. at 60. And case law could be developed on "the
appropriate reasons for sentencing outside the guidelines." Id. at 151.

      The remedial opinion in Booker examined the Act to determine which of its
provisions are "the most compatible with the legislature's intent as embodied in the
1984 Sentencing Act." 125 S.Ct. at 757. The Court recognized the central legislative

                                           -6-
intent to diminish disparity in sentencing, id. at 761, and to refine the guidelines
system through the process of appellate review. Id. at 767. The Court thought it
important to invalidate no more of the Act than was necessary while retaining the
provisions which could function independently of the constitutional infirmities. Id.
at 764. Consequently, the sentencing judge in the advisory guideline system is to
consider the guideline range, any "pertinent Sentencing Commission policy
statement," and the factors in § 3553(a) of the Act which remain valid. Id. at 764-65.
The appropriate standard of review for advisory guideline sentencing was inferred
from the text and structure of the Act. Sentences are to be reviewed for
unreasonableness, a standard Justice Breyer found compatible with the structure of the
Act, and one contained in its original provisions for review of departures and
sentences outside the guideline range, thus "already familiar to appellate courts." Id.
at 765. The Court concluded that review of all sentences for unreasonableness would
be compatible with the central goals of the Act. Id. at 767-68.

       In this section of the remedial opinion Justice Breyer specifically stated that §
3742(a) "continues to provide for appeals from sentencing decisions (irrespective of
whether the trial judge sentences within or outside the Guidelines range in the
exercise of his discretionary power under § 3553(a))." Id. at 765 (emphasis added).
The majority's decision that appellate courts are to review sentencing decisions within
the guideline range for reasonableness was attacked by Justice Scalia who recognized
that the Court was imposing reasonableness review "across the board to all sentencing
appeals, even to sentences within 'the applicable guideline range,' where there is no
legal error or misapplication of the Guidelines." Id. at 794 (Scalia, J., dissenting).
Justice Breyer responded to this portion of Justice Scalia's dissent by affirming that
it correctly characterized the reach of the majority's remedial opinion for "we believe
that appellate judges will prove capable of facing with greater equanimity than would
Justice Scalia what he calls the 'daunting prospect' of applying such a standard across
the board." Id. at 766 (internal citation omitted) (emphasis added).



                                          -7-
       By selecting a reasonableness standard of review as most compatible with the
Act and applicable to sentences either "within or outside" the range of the now
advisory guidelines, Booker, 125 S.Ct. at 765, the Court conformed the Act to its sixth
amendment remedy and provided for appellate review over all discretionary
sentencing decisions for unreasonableness. As we recognized in United States v.
Haack, 403 F.3d 997, 1002-03 (8th Cir. 2005), calculation of the appropriate guideline
sentence is only the first step in sentencing decisions under Booker, for the court must
also consider the § 3553(a) factors before making its ultimate decision. Under this
regime a guideline sentence, although presumptively reasonable, United States v.
Lincoln, 413 F.3d 716, 717-18 (8th Cir. 2005), can still be unreasonable when all the
§ 3553(a) factors are taken into consideration. The extent of a departure was always
reviewed under the Act for reasonableness using the § 3553(a) factors, 18 U.S.C. §
3742(e)(3), and consideration of these factors under the discretionary guideline system
is similarly subject to review for reasonableness.

       Adoption of the rule urged by the government, that a sentence within the
guideline range is not subject to reasonableness review, would have the effect of
returning federal sentencing to something like the mandatory guideline system found
unconstitutional in Booker. See 125 S.Ct. at 746. Under such a rule trial courts would
be encouraged to sentence only within the guideline range to avoid having sentences
overturned on appeal. This would effectively restore the rigidity in sentencing which
the Booker majority held to violate the sixth amendment rights of defendants. See id.
at 750-51. It is unlikely that Congress would have intended the appellate review it
created in § 3742(a) to be construed so restrictively since the legislative history shows
its purpose in enlarging such review was to reduce disparity and to identify potential
sentencing problems. See S. Rep. No. 98-225, at 49, 151 (1983).

      In contrast to the sentencing scheme before Booker when a sentence outside the
mandatory guideline range was permitted only on very limited grounds, there are now
more sentencing variables. Both the grounds to support a sentence outside the range

                                          -8-
and the sentencing judge's discretion in weighing those grounds have increased
significantly. While appellate review of sentences within the guideline range was not
seen as essential to the functioning of the original mandatory system, with advisory
guidelines appellate review of sentences both within and without the guideline range
is critically important to meet the congressional goals of eliminating sentencing
disparities and refining the guideline system. See S. Rep. No. 98-225, at 151 (1983).

       We conclude that appellate review for sentences both within or outside the
guideline range fits within "what Congress would have intended in light of the Court's
constitutional holding." Id. at 757 (internal quotations omitted). Our holdings in
Frokjer, 415 F.3d at 875 n.3, and McCully, 407 F.3d at 933 n.2, are supported by the
language and structure of the Act, its legislative history, and Booker, and we thus
reject the government's argument that we do not have jurisdiction to review
Mickelson's sentence for reasonableness under § 3742(a)(1).2

                                           II.

       The government next argues that Mickelson waived his right to challenge his
51 month sentence. A defendant who explicitly and voluntarily exposes himself to a
specific sentence may not challenge that punishment on appeal. United States v.
Nguyen, 46 F.3d 781, 783 (8th Cir. 1995). Mickelson stipulated to the total offense
level on which the district court based its guideline determination and to a guideline
range of 41-51 months. Moreover, at sentencing his counsel asked for a sentence
within that range but stated a preference for a sentence at the bottom. Mickelson did
not waive his right to appeal his sentence in his plea agreement, but his stipulation and


      2
       Because of this conclusion, we need not address whether § 3742(a)(4) would
also support reasonableness review over a sentence within the guideline range as some
suggest. (Section 3742(a)(4) provides for appeal of sentences "imposed for an offense
for which there is no sentencing guideline and is plainly unreasonable," and after
Booker there is no longer a binding sentencing guideline for any offense.)

                                          -9-
his counsel's request for a sentence within the guideline range may be interpreted as
an acknowledgment that any sentence within the range would have been reasonable.

        Even without such an acknowledgment, sentences within the applicable
guideline range are presumptively reasonable. Lincoln, 413 F.3d at 717-18. The
district court chose a sentence at the top of the range stipulated to by the parties only
after considering all of the § 3553(a) factors individually. The factors that appear to
have been most determinative for the court were the "nature and circumstances" of
Mickelson's offense, which the district court considered to be "very serious." It also
discounted the importance of his mitigating factors because it concluded that they had
had no causal relationship to his offense. The court did not imply that a cause and
effect relationship was necessary in order to take account of mitigating factors, only
that it found the absence of such a relationship significant in this case. Mickelson has
not shown that the district court considered any impermissible factor or gave undue
weight to a pertinent factor in arriving at his sentence. See Haack, 403 F.3d at 1004.
We conclude from our review of the record that Mickelson's sentence was not
unreasonable.

                                          III.

       Mickelson also challenges several of the conditions imposed as part of his
supervised release. He contends that Special Conditions 3, 4, and 6 are improper
delegations of authority by the district court because of the discretion given to the
probation office in overseeing them. These conditions require him to participate in
the Remote Alcohol Testing Program or Video Information Capture and to be placed
on the GPS system for tracking at the discretion of the probation office, and to receive
mental health counseling if deemed appropriate by his probation officer. He also
argues that Special Condition 12, requiring him to have no contact with anyone under
the age of 18 without the express written permission of the probation office, is
unnecessary and unreasonable given the circumstances of his case, including his close

                                          -10-
relationship with his grandchildren. The government responds that the district court
did not abuse its discretion with respect to any of the challenged conditions. We
review terms and conditions of supervised release for abuse of discretion. United
States v. Ristine, 335 F.3d 692, 694 (8th Cir. 2003).

        A sentencing judge may impose special conditions of supervised release if the
conditions are reasonably related to the § 3553(a) factors, involve no greater
deprivation of liberty than is reasonably necessary, and are consistent with any
pertinent policy statements issued by the United States Sentencing Commission. 18
U.S.C. § 3583(d). The judge may also modify a condition at any time prior to the end
of the term of supervised release. 18 U.S.C. § 3583(e). Conditions delegating limited
authority to non judicial officials such as probation officers are permissible so long
as the delegating judicial officer retains and exercises ultimate responsibility. See
United States v. Kent, 209 F.3d 1073, 1078-79 (8th Cir. 2000).

       In Kent we recognized that a trial court "cannot be expected to police every
defendant to the extent that a probation officer is capable of doing." Id. at 1079.
Moreover, flexible conditions can serve a defendant's interests since they can be
tailored to meet his specific correctional needs. See United States v. Cooper, 171 F.3d
582, 587 (8th Cir. 1998). Although we reversed a special condition in Kent requiring
the defendant to undergo psychiatric treatment upon release, that was because
statements by the district court there could have been interpreted to vest final authority
in the probation office. 209 F.3d at 1079. In contrast, the district court here gave no
indication that it would not retain ultimate authority over all of the conditions of
Mickelson's supervised release, and it specifically stated that it intended to limit
conditions to those actually needed. We conclude there was no abuse of discretion in
respect to Special Conditions 3, 4, and 6.

      As for Special Condition 12, Mickelson cites no case law in support of his
contention that it was unnecessary or unreasonable. We have in fact recently

                                          -11-
approved virtually identical supervised release conditions following guilty pleas on
similar charges, albeit in cases involving defendants with more serious records than
that of Mickelson. See United States v. Mark, 425 F.3d 505, 507-08 (8th Cir. 2005);
United States v. Crume, 422 F.3d 728, 733-34 (8th Cir. 2005); United States v.
Heidebur, 417 F.3d 1002, 1005 (8th Cir. 2005). We do not find the differences
between their records determinative, for requiring prior approval before a convicted
sex offender has contact with minors is a reasonable means of ensuring that such
contact remains appropriate. See Mark, 425 F.3d at 508. The district court's refusal
to incorporate a blanket exception for Mickelson's grandchildren or other family
members was not unreasonable given the fact that most sexual abuse of children takes
place at the hands of family members or friends. See, e.g., Michele L. Earl-Hubbard,
The Child Sex Offender Registration Laws, 90 Nw. U. L. Rev. 788, 851-52
(1996)(noting that as many as 92% of reported incidents of child molestation are
committed by family members or friends of the victim). Moreover, Mickelson has not
been forbidden from seeing his grandchildren or any other family member; he is
merely required to seek prior permission. If such permission is arbitrarily or unfairly
denied, he is free to seek relief from the district court under § 3583(e). This
arrangement does not constitute an abuse of discretion.

                                         IV.

      Accordingly, the judgment of the district court is affirmed.

                           _________________________




                                         -12-
