                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-8-2003

USA v. Freeman
Precedential or Non-Precedential: Precedential

Docket 01-3475




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"USA v. Freeman" (2003). 2003 Decisions. Paper 827.
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PRECEDENTIAL

       Filed January 6, 2003

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No: 01-3475

UNITED STATES OF AMERICA

v.

ROBB WALKER FREEMAN,

       Appellant

Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 00-cr-00108)
District Judge: Honorable Charles R. Weiner

Argued June 10, 2002

Before: SLOVITER, ROTH & McKEE, Circuit Judges

(Opinion filed: January 6, 2003)

       Patrick L. Meehan
       United States Attorney

       Laurie Magid
       Deputy United States Attorney
        for Policy and Appeals

       Robert A. Zauzmer
       Assistant United States Attorney
       Senior Appellate Counsel




       Louis D. Lappen, Esquire (Argued)
       Assistant United States Attorney
       Suite 1250
       Office of United States Attorney
       615 Chestnut Street
       Philadelphia, PA 19106

        Attorneys for Appellee

       Robert Epstein, Esquire
       Assistant Federal Defender

       Jonathan D. Libby, Esquire (Argued)
       Research & Writing Specialist

       David L. McColgin, Esquire
       Supervising Appellate Attorney
       Maureen Kearney Rowley, Esquire
       Chief Federal Defender
       Federal Court Division
       Defender Association of Philadelphia
       Suite 540 West - Curtis Center
       Independence Square West
       Philadelphia, PA 19106

       Michael J. Kelly, Esquire
       3007 Devereaux Street
       Philadelphia, PA 19149

        Attorneys for Appellant

OPINION OF THE COURT

ROTH, Circuit Judge:

Robb Walker Freeman challenges a 70 month sentence
that he received after pleading guilty to receipt and
possession of child pornography under 18 U.S.C.
S 2252(a)(2) & (4)(B). In sentencing, the District Court
departed upward from Criminal History Category I to
Category III because it believed that Category I under-
represented Freeman’s criminal history and likelihood of
committing future crimes. See United States Sentencing
Guideline (U.S.S.G.) S 4A1.3. The court also imposed a

                                  2


special, supervised release condition that prohibits
Freeman from keeping any computer equipment in his
home and from accessing the internet without permission
of his probation officer.

We will vacate both the District Court’s upward departure
and its supervised release condition. Although the District
Court heeded legitimate concerns when it increased
Freeman’s criminal history category, it erred by awarding a
two-level departure without considering whether a one-level
departure (to Category II) would be more appropriate. It
also erred by failing to state the reasons for its special
condition of supervised release and by imposing a condition
that unreasonably impinges upon Freeman’s liberty
interests. See United States v. Sofsky, 287 F.3d 122, 124
(2d Cir. 2002).

I. Facts and Procedural History

Investigation and arrest of Freeman. This case arises
from a child pornography investigation conducted by U.S.
Customs Service agents and detectives from Delaware
County. They were assisted by John Flemming, a convicted
child molester, who helped in an effort to cooperate with
federal and state authorities. Flemming had met Freeman
many years earlier at Johns Hopkins’ Sexual Disorders
Clinic.

As part of the investigation, Flemming invited Freeman to
his home in Drexel Hill, Pennsylvania. Freeman accepted
Flemming’s invitation and met with Flemming and an
undercover Delaware Police Detective, Mark Bucci. Bucci
posed as a collector of child pornography and urged
Freeman to show him the pictures of child pornography on
Freeman’s laptop. Bucci then showed Freeman a personal
computer containing numerous child pornography images.
Freeman viewed the images and said he would like to copy
them. Freeman then connected his Iomega disk drive to
Bucci’s personal computer and downloaded the file
containing child pornography. After Freeman left the
meeting, he was arrested.

Upon his arrest, Freeman waived his rights and admitted
that he had loaded numerous images of child pornography

                                3


onto his laptop and that he knew his possession and
transportation of child pornography was illegal. The agents
also executed a search warrant of Freeman’s home in
Maryland and discovered additional child pornography in
computers, a scrapbook, and a videotape.

Initial Sentencing. On March 16, 2000, Freeman pled
guilty to one count of receipt of visual depictions of minors
engaged in sexually explicit conduct (18 U.S.C.S 2252(a)(2))
and one count of possession of visual depictions of minors
engaged in sexually explicit conduct (18 U.S.C.
S 2252(a)(4)(B)). Freeman’s guilty plea agreement was
limited to evidence regarding his possession of child
pornography. The government noted that it intended, at the
sentencing hearing, to present further evidence of facts that
Freeman did not agree to in connection with his guilty plea.

At the first sentencing hearing, the government presented
evidence and testimony to support its request that the
court depart from Criminal History Category I to Criminal
History Category III. The government argued that Freeman’s
criminal history did not adequately reflect the seriousness
of his past criminal conduct and the likelihood of
recidivism. See U.S.S.G. S 4A1.3. Evidence in support of the
government’s claim included:

       - Detective Bucci testified that Freeman had admitted
       to molesting numerous young boys and that he had
       admitted to recently taking advantage of opportunities
       to babysit and take nude photographs of young boys in
       Pennsylvania.

       - The pre-sentencing report also referred to records of
       Freeman’s earlier treatment in the Sexual Disorders
       Clinic at Johns Hopkins. The records revealed that
       Freeman did not think it was wrong to engage in
       sexual relationships with young boys, and that Dr.
       Lehne, a licensed psychologist, believed that Freeman
       was at great risk for relapsing into inappropriate sexual
       behavior.
       - Freeman had two prior convictions for sexual
       misconduct which were not included in his Criminal
       History calculation because of their age. They are a

                                4


       1973 conviction for a perverted sex act and a 1984
       conviction for sexual assault of a minor.

On cross-examination, however, Detective Bucci admitted
that all of Freeman’s physical molestation of children
occurred at least 15 years ago. Freeman also testified at the
sentencing hearing. He admitted that he was a pedophile.
Although Freeman testified that he had not had any
"improper" sexual contact with minors since 1984, he did
not refute the government’s contention that, more recently,
he took advantage of opportunities to babysit and take
nude photos of young boys. Freeman did contend
nevertheless that the "the difficult pictures" taken recently
"were not pornographic." Freeman did not contest the fact
of his 1973 and 1984 convictions.

The District Court granted the upward departure from
Criminal History Category I to Category III. Criminal History
Category III, combined with Freeman’s final adjusted
offense level of 24,1 produced a guideline sentencing range
of sixty-three to seventy-eight months imprisonment.
Criminal History Category I would have provided a 60-63
month range for Freeman, and Criminal History Category II
would have provided a 60-71 month range. U.S.S.G. Ch. 5,
Part A. The District Court applied Category III and granted
Freeman a 72 month sentence as the middle range of
sentences for that category. When doing so, the court did
not consider whether Freeman would be more appropriately
sentenced as a Criminal History Category II. Indeed, the
government asked the court to clarify the basis for its
upward departure:
_________________________________________________________________

1. To calculate Freeman’s offense level, the District Court applied
U.S.S.G. S 2G2.2, which covers offenses that include receipt of material
involving the sexual exploitation of a minor. UnderS 2G2.2(a), the
District Court found that Freeman’s base offense level was 17. The court
added two points because Freeman’s offense involved a prepubescent
minor (S 2G2.2(b)(1)); five points because Freeman engaged in a pattern
of activity involving the sexual abuse or exploitation of minors
(S 2G2.2(b)(4)); two points because a computer was used (S 2G2.2(b)(5));
and a one-level multiple count adjustment underS 3D1.4. He received a
three point reduction for acceptance of responsibility under S 3E1.1,
resulting in a total combined offense level of 24.

                                5


       THE COURT: I stated for the record because of his
       previous record and because I think this is a danger to
       the community that we’ve raised the level to which
       we’ve sentenced him.
       MR. LAPPEN: And I apologize, your Honor, but it has
       to be that his Criminal History Category is raised to
       Category [III] because this Criminal History understates
       his true criminal background and his risk for
       recidivism. And if that’s your Honor’s basis that is a
       legal basis under Harvey.

       THE COURT: Couldn’t have said it better myself.

       MR. LAPPEN: Thank you.

This initial sentencing ruling by the District Court was
also based on a mandatory minimum of five years due to
Freeman’s prior conviction under 18 U.S.C. S 2252(b)(1).
Subsequently, in United States v. Galo, 239 F.3d 572 (3d
Cir. 2001), we held that crimes such as Freeman’s could
not support a mandatory minimum sentence under the
categorical approach, i.e., the court must look at the fact of
conviction and the statutory definition of the offense rather
than the actual conduct giving rise to the conviction. Id. at
577. Freeman filed an unopposed appeal of his sentence
and we vacated his original sentence and remanded for
sentencing without a mandatory minimum. As a result, on
re-sentencing, a Criminal History Category I would have
provided a 51-63 month range and a Criminal History
Category II would have provided a 57-71 month range.
U.S.S.G. Ch. 5, Part A.

Re-sentencing. The District Court did not conduct
another evidentiary hearing at re-sentencing, as it
reincorporated all statements and filings from the initial
sentencing hearing into the re-sentencing proceeding. The
government maintained its position that, under U.S.S.G.
S 4A1.3, Freeman should be sentenced under Criminal
History Category III. Freeman continued to oppose this
position.

The District Court again decided to sentence Freeman
under Criminal History Category III, although, because of
Freeman’s age,2 it reduced the sentence to 70 months,
_________________________________________________________________

2. Freeman was born on September 19, 1938.

                                6


followed by five years of supervised release. The District
Court’s reasons for departing to Category III at the first
sentencing hearing were read into the record, and the court
reiterated its rationale at this second hearing:

       Let me repeat it again. The Court will grant the
       Government’s motion and will go to Category III
       because [Freeman’s] Criminal History understates his
       criminal background, and also there is a risk of his
       recidivism, that is what the Court is looking at . .. .
       That is why it has decided to impose a seventy month
       sentence.
The court also issued a written memorandum providing the
same reasons for granting the government’s motion for an
upward departure pursuant to U.S.S.G. S 4A1.3. Neither
the District Court’s statements nor its written order suggest
that it considered whether Freemen’s background or risk of
recidivism could be appropriately addressed by a sentence
under Criminal History Category II.

The District Court also imposed special conditions on
Freeman’s supervised release. It stated that:

       Defendant is prohibited from having any computer
       equipment in [his] place of residence. The defendant
       shall not possess or use a computer with access to any
       on-line computer service at any location without the
       written approval of the Probation Officer. This includes,
       although it is not limited to, any Internet service
       provider, bulletin board system, or any other public or
       private computer network. The defendant shall consent
       to periodic, unannounced examinations of [his]
       residence and possessions, to determine if the
       defendant is in possession of computer equipment or
       any child pornography. Any computer equipment or
       suspected pornography shall be seized.

II. Jurisdiction and Standard of Review

This litigation began as a criminal prosecution of
Freeman for alleged violations of laws of the United States.
Thus, the District Court had jurisdiction over Freeman’s
plea bargain and sentencing under 28 U.S.C. S 3231. We

                                7


have appellate jurisdiction to review the District Court’s
August 28, 2001 amended judgment. 28 U.S.C. S 1291; 18
U.S.C. S 3742(a).

We review the District Court’s decision to grant an
upward departure in sentencing for an abuse of discretion.
Koon v. United States, 518 U.S. 81, 100 (1996). We review
the District Court’s decision to impose a special condition
of supervised release under the same standard. United
States v. Crandon, 173 F.3d 122, 127 (3d Cir. 1999).

III. Discussion

Freeman raises two basic challenges to the District
Court’s sentencing decision. First, he argues that the
District Court erred by granting an upward departure of
two criminal history categories without adequate
consideration of a one category departure. Second, he
argues that the District Court erred by imposing a
condition of supervised release prohibiting Freeman from
using or possessing a computer without the permission of
his probation officer. We agree with both contentions.

A. Whether the District Court erred by granting an
       upward departure of two criminal history
       categories without adequate consideration of a
       one category departure.

The basic calculation of Freeman’s criminal history score
placed him in Criminal History Category I. Coupled with a
final offense level of 24, Freeman’s Category I guideline
sentencing range was 51 to 63 months. The District Court
departed upward from that range under U.S.S.G. S 4A1.3
based on its conclusion that Criminal History Category I
did not adequately represent Freeman’s criminal
background or risk of recidivism. Thus, the court sentenced
him to 70 months, the middle of the range for a person
with Criminal History Category III and a final offense level
of 24.

The District Court was justifiably concerned about
Freeman’s extensive molestation of children in the past and
his likelihood of committing such crimes in the future,
especially in light of his recent activity in babysitting and

                                8


taking nude photographs of young boys. Unfortunately,
however, the court failed to follow the procedures set forth
under S 4A1.3 for departing in such cases.

Section 4A1.3 allows a district court to consider
departing from the applicable guideline range if"reliable
information indicates that the criminal history category
does not adequately reflect the seriousness of the
defendant’s past criminal conduct or the likelihood that the
defendant will commit other crimes."3 The Sentencing
Commission has also made clear that courts, in considering
a departure under S 4A1.3, must "use[ ] as a reference[ ] the
guideline range for a defendant with a higher . . . criminal
history category." Id. Thus, we have explained that this
regime requires a district court to determine "which
category (of those higher than the category originally
calculated for the defendant) best represents the
defendant’s prior criminal history." United States v.
Hickman, 991 F.2d 1110, 1114 (3d Cir. 1993).

If the court is considering departing by more than one
category, moreover, it is "obliged to proceed sequentially,"
and it "may not move to the next higher category" before it
finds that all lesser categories are inadequate. Id. This
ratcheting requirement is not intended to have the District
Court pay mere lip service to a discussion of each criminal
history category that it rejects en route to the one finally
selected. Indeed, too cursory a statement dismissing each
lesser category would also be inadequate. United States v.
Harris, 44 F.3d 1206, 1212 (3d Cir. 1995) (vacating
sentence where district court stated that "the application of
criminal history categories two, three, four and five are too
lenient for the conduct in this case."). The ratcheting
requirement is instead designed to ensure that the
sentencing court’s reasons for rejecting each lesser category
be clear from the record as a whole. Id. The District Court
must provide an adequate basis for us to ascertain whether
it completed its task of identifying the category
encompassing those defendants whose criminal histories
_________________________________________________________________

3. Although S 4A1.3 is a "policy statement," this Court has noted that it
is an "authoritative guide" for the application of the Guidelines. United
States v. Hickman, 991 F.2d 1110, 1113 n.7 (3d Cir. 1993).

                                9


most closely resemble the defendant’s own. Id . at 1213; see
also United States v. Thomas, 961 F.2d 1110, 1118-19 (3d
Cir. 1992).

Under this standard, the District Court’s sentencing
decision is clearly inadequate. When the District Court
departed from Category I to Category III, it never considered
whether the sentencing range provided by Category II would
be more appropriate to address Freeman’s criminal history
and likelihood of committing further crimes. We do not
mean to intimate that Category III is inappropriate for
Freeman. The District Court may well find that Category II
understates his criminal history. We must vacate the
District Court’s current sentencing decision, however,
because the District Court failed to exercise its discretion in
determining which of the higher guideline sentencing
ranges most accurately represents Freeman’s profile. On
remand, the court must consider whether Category II or
Category III most accurately addresses Freeman’s criminal
history and proclivity to commit further crimes.

B. Whether the District Court erred by imposing a
       condition of supervised release prohibiting
       Freeman from using or possessing a computer.

As an initial matter, we note that both the government
and Freeman agree that the District Court erred in failing
to state a basis for the computer restriction imposed as
part of Freeman’s supervised release. See United States v.
Loy, 191 F.3d 360, 371 (3d Cir. 1999) ("sentencing judge is
required by statute to state the reasons in open court for
imposing a particular sentence"). Thus, we will remand for
the District Court to substantiate the reasoning behind its
conditions of supervised release.

We also agree with Freeman that a special condition
forbidding him from possessing any computer in his home
or using any on-line computer service without the written
approval of the probation officer is overly broad; it involves
a greater deprivation of liberty than is reasonably necessary
to deter future criminal conduct and to protect the public.
18 U.S.C. S 2553(a)(2). United States v. Sofsky, 287 F.3d
122, 124 (2d Cir. 2002) (vacating condition that would
require probation officer to approve all computer and

                                10


internet access by a defendant who pled guilty to receiving
child pornography over the internet).

As in Sofsky, a total ban on internet access prevents use
of email, an increasingly widely used form of
communication, and other common-place computer uses
such as getting a weather forecast or reading a newspaper
online. Id. at 126. There 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. Although we have previously allowed a condition
restricting all internet access, see United States v. Crandon,
173 F.3d 122, 125 (3d Cir. 1999), the defendant in Crandon
used the internet to contact young children and solicit
inappropriate sexual contact with them. Such use of the
internet is harmful to the victims contacted and more
difficult to trace than simply using the internet to view
pornographic web sites. There is nothing in this record to
suggest that Freeman has used the internet to contact
young children. We are not in any way limiting our ability
to so restrict the use of computers when a defendant has a
past history of using the internet to contact children. See
United States v. Lee, ___ F.3d ___, ___ fn 1 (3d Cir. 2002)
(Condition 5 of supervised release prohibits defendant from
owning or using a personal computer with Internet access
in his home, except for work). Moreover, if Freeman does
not abide by more limited conditions of release permitting
benign internet use, it might be appropriate to ban all use.
Under the record before us, however, it is not reasonably
necessary to restrict all of Freeman’s access to the internet
when a more limited restriction will do.4

IV. Conclusion

The District Court’s August 28, 2001 sentencing order
will be vacated, and we will remand this case for a
_________________________________________________________________

4. In light of our disposition, we need not discuss the discrepancy
between the District Court’s orally announced sentence and the written
sentence.

                                11


resentencing determination consistent with the above
opinion.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                                12
