                                                                            FILED
                           NOT FOR PUBLICATION                               SEP 10 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-30367

              Plaintiff - Appellee,              D.C. No. 4:09-cr-00015-SEH-1

  v.
                                                 MEMORANDUM *
DENISE MARSH CARLSON,

              Defendant - Appellant.



                    Appeal from the United States District Court
                            for the District of Montana
                     Sam E. Haddon, District Judge, Presiding

                       Argued and Submitted August 3, 2010
                               Seattle, Washington

Before: CANBY, THOMPSON and BERZON, Circuit Judges.

       Denise Marsh Carlson (“Carlson”) pled guilty to receipt of child

pornography, 18 U.S.C. § 2252A(a)(2), and was sentenced to 98 months

incarceration, followed by a lifetime of supervised release. She appeals the length

of her imprisonment term as well as the length and special conditions of her



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
supervised release. We have jurisdiction under 28 U.S.C. § 1291, and we affirm in

part, vacate in part, and order a limited remand for resentencing.

                                 Imprisonment Term

      Carlson, a traveling nurse and mother of three daughters, admitted

downloading and storing hundreds of child pornography videos and images from

the Internet since 1999. The district court sentenced Carlson to 98-months

incarceration—one month more than the lowest sentence in the United States

Sentencing Guidelines range. Carlson contends that her imprisonment term is

unreasonable. We review the substantive reasonableness of a sentence for abuse of

discretion. United States v. Blinkinsop, 606 F.3d 1110, 1116 (9th Cir. 2010).

      Our recent opinion in Blinkinsop makes clear that Carlson’s 98-month

sentence is substantively reasonable. 606 F.3d at 1114-18 (upholding a 97-month

sentence as reasonable for receipt of child pornography). Like Blinkinsop, Carlson

downloaded a significant amount of child pornography from the Internet, had no

prior record of sex-crime convictions, and received a sentence on the low end of

the Guidelines. Id. Moreover, where, as here, “the district judge has considered

the [18 U.S.C §] 3553(a) factors and the totality of the circumstances supports the

sentence, we have held that the sentence is substantively reasonable.” Id. (internal

quotation marks and citation omitted). We affirm Carlson’s imprisonment term.


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                               Supervised Release Term

      Carlson contends that her lifetime term of supervised release is unreasonable

in light of her background, lack of criminal history, and low risk for recidivism.

We review the substantive reasonableness of Carlson’s supervised release term for

abuse of discretion. United States v. Autery, 555 F.3d 864, 871 (9th Cir. 2009).

      We begin by noting that this case is factually similar to Blinkinsop, and that

the same judge presided over the sentencing in both cases. In Blinkinsop, however,

the district judge imposed only a 5-year term of supervised relief. In this case, the

district judge imposed a lifetime term of supervised release, but did not specifically

address why lifetime supervision was merited. We therefore vacate the lifetime

term of supervised release for the district court to reconsider on limited remand in

light of Blinkinsop and the facts of this case.

       Like Blinkinsop, Carlson had no previous record of child abuse. She

voluntarily underwent a psychosexual evaluation and passed a polygraph test

regarding hands-on sexual abuse of children. The record shows strong community

support for Carlson, as numerous individuals wrote letters on her behalf and

traveled more than 400 miles to support her at the sentencing hearing.

      Although Carlson downloaded more child pornography videos over a longer

period of time than did Blinkinsop, the record provides mitigating circumstances


                                            3
for Carlson’s behavior, including the fact that she was sexually abused as a child

and suffered from anxiety, depression, and obsessive compulsive disorder. The

psychiatric evaluation in the record explained that Carlson’s obsessive compulsive

disorder was similar to a hoarding disorder and contributed to the high volume of

child pornography images she accumulated. And both the psychiatric evaluation

and the psychosexual evaluation concluded that Carlson posed a low risk of

recidivism. The district judge should consider these, and other factors, in

reevaluating the term of Carlson’s supervised release.

                     Special Conditions of Supervised Release

      Carlson contends that Special Conditions 3, 4, 5, 7 and 8 of her supervised

release are unreasonable and overbroad. Because Carlson did not object at

sentencing, our review is limited to plain error. Blinkinsop, 606 F.3d at 1118. We

reject Carlson’s challenge with respect to all the Special Conditions, except Special

Condition 4.

      Special Conditions 3 and 5 restrict Carlson’s access to minors and adults

with minor children. At oral argument, Carlson contended that these conditions are

unreasonable because they create an inflexible restriction. Carlson is incorrect.

Both conditions permit access when approved by the probation office, and are

reasonable under the circumstances of this case.


                                          4
      Special Condition 7, which restricts Carlson from possessing devices

capable of covert photography, is reasonable notwithstanding Carlson’s contention

that many cell phones have built-in cameras. Special Condition 7 simply does “not

impose an significant deprivation on [Carlson’s] liberty.” Blinkinsop, 606 F.3d at

1123. Like Blinkinsop, Carlson “may have a cell phone, as long as it does not

have a camera module, and [she] may have a camera, as long as it is readily

identifiable as a camera.” Id.

      Special Condition 8, which restricts Carlson’s access to the Internet unless

permitted by the probation office, is also valid and reasonable. See United States v.

Riley, 576 F.3d 1046, 1049, n.3 (9th Cir. 2009); cf. Blinkinsop, 606 F.3d at 1123

(rejecting absolute restriction on Internet access with no option to seek permission

from the probation office).

      Special Condition 4 provides that Carlson “shall not go to or loiter near

school yards, parks, playgrounds, arcades, or other places primarily used by

children under the age of 18.” Carlson contends that because she has several

young nieces and nephews, and her three adult children will likely have children of

their own, Special Condition 4’s blanket prohibition means that she will not be

able to attend their school functions or sporting events at parks. In Blinkinsop, we

vacated this condition with respect to a five-year supervised release term, noting


                                          5
that the district court should consider tailoring the restriction to allow access based

on permission from the probation office. 606 F.3d at 1119-22. We therefore

vacate Special Condition 4 for the district judge to reconsider on limited remand in

light of Blinkinsop.

      To conclude, we AFFIRM in part Carlson’s sentence as to her term of

imprisonment and Special Conditions 3, 5, 7 and 8. We VACATE Carlson’s

sentence as to the term of her supervised release and Special Condition 4, and

order a LIMITED REMAND for reconsideration consistent with this disposition.




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