                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-2-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1186




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"USA v. Proctor" (2008). 2008 Decisions. Paper 1079.
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                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 07-1186


                            UNITED STATES OF AMERICA

                                             v.

                               KEITH ALLEN PROCTOR,

                                                  Appellant


                     On Appeal from the United States District Court
                         for the Western District of Pennsylvania
                                 (D.C. No. 05-cr-00002-1)
                      District Judge: Honorable Sean J. McLaughlin


                       Submitted Under Third Circuit LAR 34.1(a)
                                    May 22, 2008

            Before: SMITH, HARDIMAN and NYGAARD, Circuit Judges.

                                   (Filed: June 2, 2008)



                               OPINION OF THE COURT


HARDIMAN, Circuit Judge.

       Keith Allen Proctor appeals an order of the District Court imposing conditions of

supervised release following his guilty plea to possession, receiving, and transporting
material depicting the sexual exploitation of a minor in violation of 18 U.S.C.

§§ 2252(a)(1), (a)(2), and (a)(4)(B). We will affirm.

       Following Proctor’s guilty plea, the District Court imposed a sentence of 198

months in prison and supervised release for life. A district court has broad discretion to

impose conditions of supervised release and a life term is specifically contemplated by 18

U.S.C. § 3583(k). See United States v. Smith, 445 F.3d 713, 716 (3d Cir. 2006). That

discretion is not unlimited, however, as conditions must be reasonably related to the

factors in 18 U.S.C. § 3553(a)(1) & (2)(B)-(D) and comport with the parsimony provision

of 18 U.S.C. § 3583(d)(2). See United States v. Loy, 237 F.3d 251, 256 (3d Cir. 2001).

       Here, the District Court found that lifetime supervised release was warranted in

light of the seriousness of Proctor’s crimes involving child pornography and his criminal

history which includes, inter alia, the molestation of a 13 year-old girl, the furnishing of

alcohol to minors, and the possession of a document which attempts to justify pederasty.

In light of these facts, the District Court did not abuse its discretion in ordering Proctor to

serve a lifetime term of supervised release.

       Proctor next argues that the District Court erred when it imposed the following

conditions of supervised release:

       [Proctor] shall submit his person, residence, place of business, computer,
       and/or vehicle, to a warrantless search conducted and controlled by the
       United States Probation Office at a reasonable time and in a reasonable
       manner, based upon reasonable suspicion of contraband or evidence of a
       violation of a condition of release. Failure to submit to a search may be
       grounds for revocation. [Proctor] shall inform any other residents that his


                                               2
       premises and his computer may be subject to a search pursuant to this
       condition.

Proctor insists that this special condition is unusually broad, particularly with respect to a

warrantless search of his place of business.

       We first note that most of the conditions imposed by the District Court — those

regarding Proctor’s person, residence, computer, and vehicle — are specifically

authorized by statute. See 18 U.S.C. §§ 3563(b)(23) and 3583(d). In light of Proctor’s

history, those conditions are reasonably related to the § 3553(a)(1) & (2) factors. See

Loy, 237 F.3d at 256. Unlike the aforementioned conditions, the warrantless search of

Proctor’s place of business is not specifically authorized by statute. See 18 U.S.C.

§ 3563(b)(23). The conditions enumerated in § 3563(b)(23) are not exhaustive, however.

As § 3583(d) makes clear, the court may impose “any other condition it considers to be

appropriate.” Likewise, 18 U.S.C. § 3563(b)(22) notes that the sentencing court may

require the defendant to “satisfy such other conditions as [it] may impose,” provided that

those other conditions are reasonably related to the § 3553(a) factors.

       Proctor cites no case holding that it is unreasonable to require a supervised

releasee to submit to a warrantless search of his workplace. Indeed, imposing this

condition on Proctor, who used computer software to share images depicting child

pornography with others over the internet, is reasonably related to the § 3553(a) factors of

deterrence, protection, and rehabilitation. See Loy, 237 F.3d at 256. The fact that this

may affect Proctor’s employer is of no moment because Proctor lacks standing to object


                                               3
that this condition would violate the Fourth Amendment rights of a prospective employer

or co-worker. See Rakas v. Illinois, 439 U.S. 128, 143 (1978) (a third party has standing

to challenge the constitutionality of a search only when one has a “legitimate expectation

of privacy” in the premises or items searched).

       Nor does the warrantless search of Proctor’s place of business infringe on his

personal liberties more than is reasonably necessary. Although this condition might well

impair Proctor’s ability to find a job, we find that it is necessary to meet the goals of 18

U.S.C. § 3583(d)(2) in light of Proctor’s offenses. Therefore, the District Court did not

abuse its discretion in requiring Proctor to submit to warrantless searches at his place of

business.

       Finally, Proctor claims that the District Court improperly delegated judicial

authority to the probation officer when it ordered Proctor to refrain from associating with

children except under the supervision of persons approved in advance by the probation

officer and to participate in substance abuse, mental health, and sex offender treatment as

directed by the probation officer. Because Proctor did not object to these conditions at

sentencing, we review this argument for plain error. See United States v. Voelker, 489

F.3d 139, 153 (3d Cir. 2007).

       Although Proctor was ordered to fulfill the substance abuse, mental health, and sex

offender treatment conditions “as directed by the probation officer,” we read these

conditions as mandatory. Proctor must undergo mental health/sex offender treatment

programs and substance abuse testing. If that testing indicates that treatment is needed,

                                              4
then Proctor must undergo substance abuse treatment. The probation officer has

discretion over the administrative details of these programs, but no control over these

requirements per se. Thus, this case is unlike United States v. Pruden, 398 F.3d 241, 245

(3d Cir. 2005), where the district court ordered the defendant to participate in mental

health treatment “at the discretion of the probation officer.” (emphasis added).

       As for the condition that Proctor not associate with children unsupervised, the

District Court found that Proctor had a “long history of preying on children.” This

condition is distinguishable from that in Voelker, where the restriction on unsupervised

contact did not distinguish between the defendant’s own children and other children.

Thus, Voelker’s probation officer had “sole authority for deciding if he will ever have

unsupervised contact with any minor, including his own children, for the rest of his life.”

See Voelker, 489 F.3d at 154 (emphasis added). Here, on the other hand, Proctor lost all

parental rights to his children and stepchildren in 2003. Accordingly, the probation

officer could not infringe upon parental rights that Proctor no longer possesses.1

Therefore, we find that the imposition of these conditions was not plain error, particularly

in light of Proctor’s impulsive sexual behavior toward children — including his own

stepchildren — and his inability to resist child pornography.

       For all of the foregoing reasons, we will affirm the judgment of the District Court.



       1
          Should the conditions of Proctor’s supervised release prove too onerous in
practice, the District Court could modify those conditions. See 18 U.S.C. § 3583(e)(2);
see also Loy, 237 F.3d at 270.

                                             5
