                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-6-2004

USA v. Landry
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1187




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                                        NOT PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT


                          No. 04-1187


              UNITED STATES OF AMERICA

                              v.

                     JERRY LANDRY,

                           Appellant


        ON APPEAL FROM THE UNITED STATES
                     DISTRICT COURT
          FOR THE DISTRICT OF NEW JERSEY
             (D.N.J. Criminal No. 03-cr-00332-1)
       District Judge: The Honorable Freda L. Wolfson




        Submitted Under Third Circuit L.A.R. 34.1(a)
                    November 3, 2004

   Before: ALITO, BARRY, and FUENTES, Circuit Judges.

                  (Filed: December 6, 2004)




                 OPINION OF THE COURT


FUENTES, Circuit Judge.

      Appellant Jerry Landry pled guilty to one count of
possession of child pornography and was sentenced accordingly

in the District Court. Among the terms of the sentence is a

three-year term of supervised release to be imposed upon the

completion of his incarceration. On appeal, Landry challenges

for the first time three of the conditions of supervised release: a

blanket restriction on internet use, an order to complete a

substance abuse program, and a prohibition on working with

minors. We find that the District Court did not commit plain

error in imposing these restrictions, and therefore affirm the

sentence.

                                 I.

       As we write solely for the parties, our recitation of the

facts will be limited to those necessary to our determination.1

On July 24, 2002, Jerry Landry was pulled over in New Jersey

by the police for driving an unregistered vehicle. After Landry

was unable to produce a driver’s license for the officers, they

discovered through a radio check that his Virginia license was

suspended and also that there existed an outstanding warrant for

his arrest, which had been issued in Maryland. As a result,

       1
          Most of the facts presented here are taken directly from
Landry’s pre-sentencing report.

                                 2
Landry was arrested. The officers then searched his vehicle and

found a fraudulent Maine driver’s license and some fraudulent

personal and commercial checks.

       Shortly after arriving at the police station, Landry waived

his Miranda rights and confessed to creating the fraudulent

materials found in his car using his personal computer. Landry

consented to a search of the motel room at which he was staying

at the time. The police discovered the equipment used to make

the licenses and checks, as well as blank check stock, more

Maine driver’s licenses, and thirteen photographs of minors

engaged in explicit sexual conduct. One of these photographs

depicted salacious conduct involving an adult male and a minor

female. Landry admitted to the police that he knew the girl in

that picture and that he in fact had taken the picture himself. A

subsequent search of the equipment found in Landry’s room

revealed various materials for forgery of identification

documents and checks and an extensive collection of child

pornography, consisting of several hundred movies and images. 2


       2
         To this day, Landry contends that the pornography was already
contained on hard-drives that he purchased used, and that he simply did
not delete the material (rather than having sought it out or produced it
himself). However suspect that claim may be, the State has not

                                   3
       In an interview with the U.S. Secret Service, Landry

explained that he posted child pornography on a website that

provided visitors with the materials in exchange for their

identifying information. He would use the identifying

information to produce fake driver’s licenses.

       Eventually, Landry was arrested by federal authorities on

charges relating to child pornography. As part of a plea

agreement, he pled guilty to one count of possession of child

pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). A

pre-sentencing report was prepared and circulated by a U.S.

probation officer, containing the following relevant information:

(1) that Landry admitted to knowing the minor in one of the

photographs found in his motel room and to actually having

taken that picture; (2) that he admitted to prior recreational drug

use as a teenager and to having been ordered to enter a substance

abuse program; (3) that there is a pending charge against him for

possession of paraphernalia associated with crack cocaine; and

(4) that he once attempted suicide through the swallowing of



produced any contradictory evidence and the District Court accepted
Landry’s contention. We need not concern ourselves with the credulity
of the contention, as it does not affect our analysis.

                                 4
prescription drugs. Landry was sentenced according to the

guidelines to 48 months incarceration, three years of supervised

release, and a special assessment of $100. Additionally, the

judge imposed eight conditions applicable to the supervised

release period, which were not objected to at the hearing.

Among these conditions are: (1) that Landry “not possess,

procure, purchase or otherwise obtain access to any form of

computer network, bulletin board, Internet, or exchange format

involving computers unless specifically approved by the

Probation Office”; (2) that he “refrain from the illegal possession

and/or use of drugs,” submit to “testing to ensure compliance,”

and “submit to drug treatment, on an inpatient or outpatient

basis”; and (3) that he “shall not obtain employment or perform

volunteer work which includes, as part of its job/work

description, contact with minor children.” Landry filed timely

notice of appeal of the sentence, and challenges these conditions

in this Court as not supported by an articulated bases from the

judge, overly broad, and not reasonably related to the goals of

sentencing.

                                II.



                                5
       Generally, the imposition of special conditions of

supervised release is reviewed under the deferential abuse of

discretion standard. See United States v. Lee, 315 F.3d 206, 210

(3d Cir. 2003). However, challenges to sentencing conditions

not objected to at the sentencing hearing are reviewed under the

even more deferential plain error standard. United States v.

Warren, 186 F.3d 358, 362 (3d Cir. 1999). Thus, because no

objection was made to the conditions challenged here, we apply

the plain error standard. A plain error is one that (obviously) is

plain and that affects substantial rights. See United States v.

Wolfe, 245 F.3d 257, 261 (3d Cir. 2001). Deviation from a legal

rule satisfies this standard. Id. However, even if a defendant

can establish the existence of plain error, it is within the “sound

discretion of the Court of Appeals . . . whether to correct the

error.” Id. (citing Fed. R. Crim. P. 52(b)). “[A] court should not

exercise that discretion unless the error seriously affect[s] the

fairness, integrity or public reputation of judicial proceedings.”

United States v. Olano, 507 U.S. 725, 732 (1993) (quotation

omitted).

       As we have noted before, “[a] sentencing judge is given



                                 6
wide discretion in imposing supervised release.” United States

v. Crandon, 173 F.3d 122, 127 (3d Cir. 1999).

       [A] District Court may order any appropriate

       condition to the extent it (1) is reasonably related

       to certain factors, including (a) the nature and

       circumstances of the offense and the history and

       characteristics of the defendant, (b) deterring

       further criminal conduct by the defendant, or (c)

       protecting the public from further criminal conduct

       by the defendant; and (2) involves no greater

       deprivation of liberty than is reasonably necessary

       for the purposes of deterrence and protection of the

       public.

Id. (emphasis added) (citing 18 U.S.C. §§ 3583(d), 3553(a)).

“[T]he courts of appeals have consistently required district

courts to set forth factual findings to justify special probation

conditions.” Warren, 186 F.3d at 362, 366 (discussing

conditions on “probation or supervised release”). However, “if

the district court fails to set forth its findings and justifications,”

“the record below must contain evidence that would support the



                                   7
imposition of a special condition.” Id. at 366-67. “[A] district

court should engage in an inquiry which results in findings on

the record to justify that condition, and to indicate how that

condition meets the statutory purposes of probation.” Id. at 367.

“We will affirm only if the district court has made such findings,

or we can determine from the record a sufficient evidentiary

basis for the [condition].” Id. A district court may adopt the

factual findings in a pre-sentencing report in order to provide a

sufficient record for review on appeal. See, e.g., United States v.

Hallman, 23 F.3d 821, 827-28 (3d Cir. 1994).

                                III.

                   A. Bases for the Conditions

       Landry first contends that the District Court failed to state

bases for any of the three challenges conditions and that the

record is devoid of any such basis for their imposition. Even if

we were to agree with the former contention, we find that the

pre-sentencing report, explicitly adopted by the District Court,

provides ample support for the conditions. The internet

restriction is supported by the fact that Landry used that medium

to trade child pornography for identification information. Thus,



                                 8
the internet facilitated his creation of forged documents and

opened an avenue up for him to disseminate child pornography,

potentially including materials that he himself created.

Similarly, the work restriction finds support in his apparent

attraction to minors and willingness to exploit them for his own

benefit. Admittedly, the drug treatment order finds less robust

support in the record, but his teenage substance abuse and more

recent substance-based suicide attempt provide sufficient

support, given the extraordinarily deferential standard of review

that we must apply.

           B. Overbreadth of the Internet Restriction

       Landry argues that the condition restricting his use of the

internet and similar network-based communication systems is

overly broad, as it prevents him from accessing email, news,

weather, and other important information. He relies heavily on

our decision in United States v. Freeman, 316 F.3d 386 (3d Cir.

2003), in which we found that a similar restriction “involve[d] a

greater deprivation of liberty than is reasonably necessary to

deter future criminal conduct and to protect the public.” Id. at

392. We noted that, because Freeman had only downloaded



                                 9
child pornography (not to downplay the wrongfulness of such

action, of course), “[t]here is no need to cut off Freeman’s access

to email or benign internet usage when a more focused

restriction, limited to pornography sites and images, can be

enforced by unannounced inspections of material stored on

Freeman’s hard drive or removable disks.” Id. We

distinguished our decision in Crandon, in which a similar

restriction was upheld, because “the defendant in Crandon used

the internet to contact young children and solicit inappropriate

sexual contact with them.” Freeman, 316 F.3d at 392.

       We first note that the restriction here is somewhat more

narrow than that in Freeman, as Landry is not barred from using

a stand-alone computer.3 Moreover, Freeman can be

characterized as a case involving a simple “consumer” of child

pornography, with Crandon instead concerning someone directly

involved in the exploitation of children. Under that dichotomy,

it is not unreasonable to place Landry in the latter category, as he

not only traded in the pornographic material, but in fact created


       3
         It is also worth noting that the restriction here allows Landry
access to the internet if he receives permission from the Probation
Office. However, this fact does not distinguish this case from Freeman
or Crandon, as similar allowances were made in those cases.

                                  10
some of it. Additionally, he used the internet to acquire

information that he used in his production of forged documents.

We are therefore satisfied that the imposition of the internet

restriction here does not constitute plain error that must be

corrected.




         C. The Relationship to the Goals of Sentencing

       Finally, Landry challenges the drug and work-related

conditions as not reasonably related to the goals of sentencing.

He cites our decision in United States v. Loy, 191 F.3d 360 (3d

Cir. 1999), for the proposition that “the conditions of supervised

release must be reasonably related to the goals of deterrence,

protection of the public and rehabilitation of the defendant.”

Id. at 371. Earlier in that opinion, we cited “the need for the

sentence imposed to deter future criminal conduct, protect the

public, and provide the defendant with necessary training,

medical care, or other correctional treatment.” Id. at 370 (citing

18 U.S.C. § 3553(a)(1) & (2)).

       Given the evidence we cited earlier as a basis for the drug

restriction and the legitimacy of the goal of rehabilitation, we



                                 11
cannot say that the District Court committed plain error in

imposing the condition. We note again that the record may not

support the conclusion that Landry has a serious drug problem,

but it also does not compel the conclusion that he completely

lacks “any substance abuse problem.” See United States v.

Modena, 302 F.3d 626, 636 (6th Cir. 2002) (rejecting a similar

drug treatment condition as an abuse of discretion because “the

PSR specifically states that the probation officer ‘has no

information pertaining to substance abuse/use pertaining to Mr.

Modena’”). Similarly, our stated basis for the work restriction

provides a reasonable relationship between the restriction and

the goal of protecting the public, as Landry’s previous

exploitation of at least one minor suggests that he might revert to

similar depravity if regularly exposed to other minors.

                                IV.

       For the reasons set forth above, we find that the District

Court did not commit plain error meriting intervention by this

Court in imposing the supervised release conditions challenged

by Landry. Accordingly, the sentence dispensed by the District

Court is affirmed.



                                12
