                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-3737
                                   ___________

United States of America,               *
                                        *
            Appellee,                   *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Nebraska.
David T. Mark,                          *
                                        *
            Appellant.                  *
                                   ___________

                             Submitted: June 23, 2005
                                Filed: October 4, 2005
                                 ___________

Before ARNOLD, McMILLIAN, and COLLOTON, Circuit Judges.
                           ___________

COLLOTON, Circuit Judge.

       David T. Mark pleaded guilty to possession of child pornography, in violation
of 18 U.S.C. § 2252(a)(4)(B), and was sentenced to a term of 30 months’
imprisonment, to be followed by three years of supervised release with special
conditions. Mark appeals his sentence, arguing that the district court erred in
rejecting his motion for downward departure from the sentencing guidelines and
abused its discretion by assigning certain conditions of supervised release. We find
no error in the term of imprisonment imposed by the district court. Because we find
the record insufficient to uphold one special condition of supervised release
concerning access to the Internet, however, we remand the case for further
proceedings.

                                          I.

       Mark’s sole argument regarding the length of his incarceration relates to the
calculation of the appropriate sentencing range under the United States Sentencing
Guidelines, a range that is now advisory under the decision in United States v.
Booker, 125 S. Ct. 738 (2005). The district court calculated a sentencing range of 27
to 33 months’ imprisonment, based on the applicable offense level and criminal
history, (S. Tr. at 29-30), but Mark argued that his “involuntary intoxication,”
resulting from psychotropic medication that he took to treat a bipolar condition, was
a mitigating circumstance that the Sentencing Commission did not adequately take
into consideration when it formulated the guidelines. He asserted that his prescription
for the drug was tripled before the commission of his offense, and that the higher
dosage pushed him into a state of mania that made it impossible for him to control his
addiction.

       The district court ruled that it was not permitted to consider a departure based
on Mark’s use of medication, because his involuntary intoxication claim amounted
to an assertion of “diminished capacity,” and a federal statute enacted in 2003
specifically prohibited departures based on “diminished capacity” in child
pornography cases. See Pub. L. No. 108-21, § 401(b), 117 Stat. 650, 669 (2003);
USSG § 5K2.13. The court explained that “Congress’ mandate to me precludes that
defense, because it still fits in the category of diminished capacity because frankly
someone’s mental illness, or someone’s involuntary intoxication, are both
unintentional,” and that “Congress has precluded me from downwardly departing for
diminished capacity for any basis.” (S. Tr. at 54-55).




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      Mark argues on appeal that the district court erred in refusing to entertain his
motion for downward departure because “involuntary intoxication” differs from
diminished capacity, and involuntary intoxication is therefore still available as a basis
for departure from the guidelines in an appropriate case. Reviewing the district
court’s interpretation and application of the guidelines de novo, United States v.
Mashek, 406 F.3d 1012, 1017 (8th Cir. 2005), we hold that the district court properly
concluded that Mark’s proposed departure was forbidden.

      Section 5K2.13 provides that a downward departure may be warranted if “(1)
the defendant committed the offense while suffering from a significantly reduced
mental capacity; and (2) the significantly reduced mental capacity contributed
substantially to the commission of the offense.” The Sentencing Commission has
defined “significantly reduced mental capacity” to mean that “the defendant, although
convicted, has a significantly impaired ability to (A) understand the wrongfulness of
the behavior comprising the offense or to exercise the power of reason; or (B) control
behavior that the defendant knows is wrongful.” USSG § 5K2.13, comment. (n.1).
The guidelines explicitly disallow such a departure where the defendant has been
convicted of an offense involving child pornography. USSG § 5K2.13.

       Mark concedes that if the “state of mania” that allegedly contributed to his
offense were caused by bipolar disorder, then it would constitute “diminished
capacity” on which a departure may not be based. (S. Tr. at 45). He asserts, however,
that because the alleged “state of mania” was caused by medication (which he says
was improperly prescribed), he is eligible for a departure.

       We agree with the district court that Mark, in seeking to distinguish his claim
of “involuntary intoxication” from a claim of “diminished capacity,” has invited us
to join in “dancing on the head of a pin,” and we reject the proffered distinction. The
policy statement on “diminished capacity” focuses not on the cause of the defendant’s
diminished capacity, but on the defendant’s ultimate mental state – that is, whether

                                          -3-
he in fact had a “significantly impaired ability” to understand the wrongfulness of his
behavior or to exercise the power of reason, regardless of the cause. The policy
statement implicitly confirms that “involuntary intoxication” is within the scope of
“diminished capacity” when it directs that a court may not depart when the
defendant’s reduced mental capacity “was caused by the voluntary use of drugs or
other intoxicants.” USSG § 5K2.13 (emphasis added). Conversely, with respect to
offenses not categorically excluded by the 2003 statute, a court may depart pursuant
to § 5K2.13 when a defendant’s reduced mental capacity is caused by involuntary use
of drugs. When Congress did away with the departure in child pornography cases,
however, it prohibited the sort of reduction sought by Mark.

       The district court, applying the then-mandatory sentencing guidelines, properly
sentenced Mark within the guideline range of 27 to 33 months’ imprisonment. Mark
has not argued on appeal that the district court’s imposition of sentence constituted
plain error warranting relief under Booker and United States v. Pirani, 406 F.3d 543
(8th Cir. 2005) (en banc), petition for cert. filed, (U.S. July 27, 2005) (No. 05-5547).
Therefore, we affirm that portion of the judgment imposing a term of 30 months’
imprisonment.

                                           II.

        Mark also argues that the special supervised release conditions imposed by the
district court are inconsistent with 18 U.S.C. § 3583(d). The statute provides, inter
alia, that a district court may order a condition of supervised release beyond those
listed in § 3583, provided that such a condition is reasonably related to the sentencing
factors set forth in 18 U.S.C. § 3553(a), involves no greater deprivation of liberty than
is reasonably necessary for the purposes set forth in § 3553(a), and is consistent with
any pertinent policy statements issued by the Sentencing Commission. Among the
purposes set forth in § 3553(a) are deterrence, protection of the public, and effective



                                          -4-
provision, in the most effective manner, of needed educational or vocational training,
medical care, or other correctional treatment to the defendant.

                                          A.

       The first special condition about which Mark complains requires that he have
no contact with, or reside with, any children under 18 years of age, including his own
children, unless approved in advance and in writing by the probation office. Mark
asserts that there is nothing in the record indicating that he is a danger to his own or
other children and that this condition is “simply too great a restriction on the
Defendant’s liberty to be allowed.” (Appellant’s Br. at 13). He further argues that
the condition improperly delegated a judicial function to the probation office by
allowing a probation officer to determine whether he has contact with his children.

       Mark explained at sentencing that he would prefer a condition that he must
follow any and all orders with respect to his children from the District Court of
Douglas County, Nebraska, in which he was engaged in relevant litigation. His
counsel explained that “What I don’t want to see, Judge, is the probation office all of
a sudden double guessing the District Court of Douglas County, Nebraska, or its
orders, and Mr. Mark finding himself at odds as to what to do.” (S. Tr. at 57). The
condition ultimately imposed required the probation office to consult with treatment
providers and act “consistent with the orders of the Douglas County District Court or
the Separate Juvenile Court of Douglas County.” (S. Tr. at 72). The district court
clarified that “once the Douglas County District Court, the Separate Juvenile Court,
makes a decision with respect to contact, then that will be the controlling document,
but the court is not giving up its jurisdiction as well, because I don’t know how long
the county court might have jurisdiction.” (Id.).

      In essence, the district court gave Mark what he requested: the probation office
was instructed to follow the lead of the county court insofar as Mark’s visitation

                                          -5-
rights were concerned. Requiring Mark to obtain prior approval is a reasonable
mechanism to promote compliance and to ensure that Mark’s contact with minors is
reasonably limited to appropriate situations. Mark has a history of violating
conditions of release (he was on probation for a previous child pornography
conviction when he committed the instant offense), and the record reflects that during
his youth, Mark engaged in sexual exploration with a female family member who was
a minor. (PSR ¶ 104). Under these circumstances, the district court did not abuse its
discretion in imposing the condition.

       Mark’s argument that the district court impermissibly delegated the judicial
function to the probation office is also unconvincing. In United States v. Kent, 209
F.3d 1073, 1079 (8th Cir. 2000), on which Mark relies, we held that where a court
“explicitly stated it hoped it would not be ‘riding herd’ in the probation officer’s
decision to require Kent to undergo psychiatric treatment,” the condition imposed was
inconsistent with both Article III and U.S.S.G. § 5D1.3(b), because it was “entirely
possible that Kent’s probation officer, as opposed to the court, would retain and
exercise ultimate responsibility over the situation.” 209 F.3d at 1079. In this case,
there is no such broad delegation. The district court provided ample guidance to the
probation office by directing it to condition approval of Mark’s contact with children
on the decisions of the county court, and there is no indication that the court
delegated ultimate responsibility over the situation to the probation officer.

                                         B.

       Mark next contends that two special conditions of supervised release,
numbered 8 and 9, which prohibit him from using or having access to any online
computer programs, and from using or possessing a computer, except under
supervised work conditions and on a computer with no Internet connection, are “far
too broad and involves too great a restriction on [Mark’s] liberty than is reasonably
related to any rehabilitation nor to serve the ends of protecting the public.”

                                         -6-
(Appellant’s Br. at 15). Mark points out that he “is a computer consultant who earns
his livelihood through the use of computers,” and argues that the restrictions imposed
would have a severe detrimental effect on his ability to hold a job and earn a living.
(Id.). He argues that less restrictive alternatives exist that could satisfy the needs of
the sentencing court. According to Mark, the district court could have addressed its
concerns by ordering him to install filtering software that would block access to
sexually-oriented websites and to permit the probation office unannounced access to
verify that the software was functioning properly. This approach, in Mark’s view,
would allow him to make use of the Internet for employment purposes, but preclude
him from abusing access.

       Given Mark’s repeated offenses of viewing child pornography over the
Internet, a complete ban on Internet access is reasonably related to the statutory
purposes of deterring criminal conduct and protecting the public from further crimes
of the defendant. The more difficult question is whether the condition is overbroad
– that is, whether it involves a “greater deprivation of liberty than is reasonably
necessary” under the circumstances. On plain error review, we have upheld narrower
bans on Internet access in cases involving offenders who committed crimes more
serious than simple possession of child pornography. In United States v. Fields, 324
F.3d 1025 (8th Cir. 2003), we discerned no abuse of discretion (and thus, a fortiori,
no plain error) in a condition that barred a defendant from having Internet access at
his home, where the offense of conviction involved running a child pornography
website for profit, and the defendant pointed to no specific negative impact on his
educational or vocational training that would result from the condition. Similarly, in
United States v. Ristine, 335 F.3d 692, 695-96 (8th Cir. 2003), we found no plain
error where the district court barred the defendant from having Internet service at his
residence, noting again that the defendant exchanged images with other Internet
users, and thus “did more than merely possess child pornography.” Id. at 696.




                                          -7-
        We observed in Fields, however, that “[a]ppellate courts have overturned
conditions seen as overly restrictive, especially in cases involving simple possession
of child pornography.” 324 F.3d at 1027. And in United States v. Crume, No. 04-
3181, 2005 WL 2124103 (8th Cir. Sep. 6, 2005), we recently held, in the case of a
defendant whose criminal conduct involved only possession of child pornography,
that a broad ban on access to computers and the Internet (without written consent of
a probation officer) was not reasonably necessary. We concluded that the district
court could “impose a more narrowly-tailored restriction on Mr. Crume’s computer
use through a prohibition on accessing certain categories of websites and Internet
content and can sufficiently ensure his compliance with this condition through some
combination of random searches and software that filters objectionable material.” Id.
at * 4.

       Our decision in Crume is consistent with such opinions as United States v.
Sofsky, 287 F.3d 122 (2d Cir. 2002), where the Second Circuit vacated a complete
ban on Internet access, noting that “[c]omputers and Internet access have become
virtually indispensable in the modern world of communications and information
gathering,” id. at 126, and United States v. Freeman, 316 F.3d 386 (3d Cir. 2003),
which held with respect to a defendant convicted of possessing child pornography
that “[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. at 392. The court in Freeman distinguished a case in which
it upheld a complete ban on Internet use by noting that the defendant in the previous
case “used the internet to contact young children and solicit inappropriate sexual
contact with them” – a use that was “harmful to the victims contacted and more
difficult to trace than simply using the internet to view pornographic web sites.” Id.;
see also United States v. Holm, 326 F.3d 872, 877-78 (7th Cir. 2003) (holding that
a prohibition on Internet access failed to satisfy § 3583(d)(2), because “such a ban
renders modern life – in which, for example, the government strongly encourages

                                         -8-
taxpayers to file their returns electronically, where more and more commerce is
conducted on-line, and where vast amounts of government information are
communicated via website – exceptionally difficult,” and the defendant had a long
history of working in computerized telecommunications, such that the special
condition “could affect his future productivity and jeopardize his rehabilitation in
violation of the command of § 3583(d).”); United States v. White, 244 F.3d 1199,
1206-07 & n.8 (10th Cir. 2001) (cautioning against an across-the-board prohibition
on Internet access, which would bar a defendant “from using a computer at a library
to do any research, get a weather forecast, or read a newspaper online,” and
explaining that filtering software, although not “completely effective” in 2001, might
provide a reasonable method of preventing the defendant from viewing illegal content
while allowing him to use the Internet legitimately).

       As Crume and the decisions from other circuits illustrate, a complete ban on
Internet access is difficult to justify as a least restrictive means of satisfying the
statutory objectives of supervised release in the case of a defendant whose criminal
conduct involved simple possession of child pornography. At a minimum, such a
condition should be imposed only on a record that permits a thorough evaluation of
other alternatives that might be sufficient to serve the statutory purposes of protecting
the public and deterring future crimes. In this case, we believe the record is not
sufficient to demonstrate that the complete prohibition on Internet access is
reasonably necessary. The potential efficacy of a filtering program, for example, has
not been explored. Whether such a program would likely be effective in preventing
Mark from accessing illegal content cannot be judged on this record. Nor does the
record show why the district court apparently believed that restrictions on time and
place of Internet access, combined with regular monitoring and inspections by the
probation office, would be inadequate to protect the public and deter future
violations. See Crume, 2005 WL 2124103, at *4; cf. Sofsky, 287 F.3d at 126-27.




                                          -9-
       We reserve judgment on whether a complete ban on Internet access, in some
case of a defendant involved in possessing child pornography, may be reasonably
necessary within the meaning of § 3583(d)(2), particularly if a defendant is
incorrigible and other alternatives are thoroughly considered but reasonably found to
be ineffective. In this case, however, we conclude that the record is insufficiently
developed to justify the condition, both with respect to evidence concerning potential
alternatives and an explanation from the district court as to why less restrictive
alternatives are inadequate.

                                  *       *      *

      For the foregoing reasons, we vacate the special conditions of supervised
release prohibiting access to any online computer programs, and prohibiting the use
or possession of a computer with Internet access, and remand the case for further
proceedings in accordance with this opinion.
                       ______________________________




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