                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-3181
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Northern District of Iowa.
Derrick Crume,                          *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: May 12, 2005
                                Filed: September 6, 2005
                                 ___________

Before ARNOLD, LAY, and BENTON, Circuit Judges.
                           ___________

ARNOLD, Circuit Judge.

       Derrick Crume appeals his convictions and sentence, including his special
conditions of supervised release, for knowingly receiving child pornography, see
18 U.S.C. § 2252A(a)(2)(A), and knowingly possessing child pornography, see
18 U.S.C. § 2252A(a)(5)(B). We affirm Mr. Crume's convictions, but we vacate
certain special conditions of his supervised release and remand the case for further
proceedings not inconsistent with this opinion.

      Mr. Crume contends that he is entitled to a new trial because the district court
permitted his probation officer to describe briefly one image of child pornography
found on a computer disk in his apartment. The government offered this testimony
and multiple photographs found by his probation officer as "other acts" evidence
under Federal Rule of Evidence 404(b). Although the court initially overruled
Mr. Crume's objection that the admission of testimony describing the contents of the
computer disk violated the best evidence rule, see Fed. R. Evid. 1002, it later reversed
course and instructed the jury to disregard that portion of the officer's testimony.
Therefore, even if the evidence was not admissible, any error was cured. See United
States v. Uphoff, 232 F.3d 624, 626 (8th Cir. 2000).

        Mr. Crume also appeals his sentence. In light of the uncertainty at the time
regarding the constitutionality of the United States Sentencing Guidelines, cf. Blakely
v. Washington, 542 U.S. 296 (2004), the district court pronounced three sentences.
It first imposed a formal sentence of 262 months under the regime in place before
United States v. Booker, 125 S. Ct. 738 (2005). It also pronounced two sentences
alternative to the formal sentence and instructed that certain actions of the Supreme
Court would trigger the imposition of those sentences: It imposed a sentence of
60 months if the Supreme Court interpreted Blakely to prohibit upward guideline
adjustments from the base offense level in the absence of a jury finding; if the
guidelines were "found unconstitutional, as a whole or in relation to this case," the
court ordered the imposition of an alternative sentence of 300 months. The order
indicates that the district court used the criteria set forth in 18 U.S.C. § 3553(a) to
arrive at the 300-month sentence. The district court did not, however, pronounce an
alternative sentence that would take effect if the sentencing guidelines were declared
advisory.

       The government and the defendant contend that our task here is to review the
262-month sentence. We agree. In Booker the Supreme Court expressly avoided
holding that the Sentencing Guidelines were unconstitutional "as a whole," but
instead excised certain portions of 18 U.S.C. § 3553 to make the guidelines advisory,
rather than mandatory. See Booker, 125 S. Ct. at 756-57. The guidelines also have

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not been held unconstitutional as applied in this case. Therefore, the condition that
would trigger the imposition of the 300-month sentence (that the guidelines be found
unconstitutional "as a whole or in relation to this case") has not been satisfied. Cf.
U.S. v. Archuleta, 412 F.3d 1003, 1006-07 (8th Cir. 2005). Furthermore, Booker did
not prohibit upward adjustments from the base offense level in the absence of a jury
finding, see Booker, 125 S. Ct. at 756-57, and so the condition that would trigger the
imposition of the 60-month sentence also has not been satisfied.

       We must therefore review the default sentence of 262 months' imprisonment.
Although the district court committed Booker error by pronouncing this sentence
under the theory that the guidelines were mandatory, see United States v. Thompson,
403 F.3d 533, 535 (8th Cir. 2005), Mr. Crume does not contest this error. Instead he
argues that the district court erred in enhancing his offense level for obstruction of
justice, see U.S.S.G. § 3C.1.1, and in departing upward from the guidelines because
his criminal history category did not adequately reflect the seriousness of his past
criminal conduct or the likelihood that he would commit further crimes, see U.S.S.G.
§ 4A1.3. We construe his arguments to be that his sentence was premised on an
erroneous calculation of the guidelines sentence including any appropriate departures
and that his overall sentence was unreasonable in light of the criteria of 18 U.S.C.
§ 3553(a). See Booker, 125 S. Ct. at 765; United States v. Shannon, 414 F.3d 921,
922-23 (8th Cir. 2005).

        The district court committed no error in calculating Mr. Crume's guidelines
sentence. Mr. Crume first maintains that the district court erred by concluding that
he obstructed justice by threatening two of his fellow prisoners with harm if they
provided information to law enforcement agents. He argues that because he did not
know when he made the threat that those he threatened were cooperating witnesses
of the government, he did not obstruct justice. See U.S.S.G. § 3C1.1; see also United
States v. Oppedahl, 998 F.2d 584, 585-86 (8th Cir. 1993). But there was evidence at
trial that when he made the threat, Mr. Crume knew that those he threatened intended

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to provide information to the prosecution. Indeed, a reasonable inference is that that
is why he threatened them. The district court found that Mr. Crume "did threaten [the
two fellow prisoners] while they were in Linn County Jail in an attempt to get them
not to jump his case." This factual finding is not clearly erroneous. See United States
v. Molina, 172 F.3d 1048, 1058 (8th Cir. 1999), cert. denied, 528 U.S. 893 (1999).
Accordingly, the district court properly assessed the obstruction-of-justice
enhancement.

       Mr. Crume also argues that the district court erred in departing upward for an
inadequate criminal history, see U.S.S.G. § 4A1.3, because his criminal history
category had already been increased substantially for his prior illegal conduct of a
sexual nature. The district court's upward departure from criminal history category
IV to category VI produced a guidelines imprisonment range of 210 to 262 months,
up from a range of 168 to 210 months. "We review [a district] court's decision to
depart upward under the advisory guidelines for abuse of discretion." See Shannon,
414 F.3d at 923.


       The district court provided a written statement of its reasons for the departure
in which it indicated that it was concerned about Mr. Crume's likelihood to recidivate.
The statement also indicates that the court decided to depart upward after considering
the defendant's prior convictions resulting from and related to the sexual abuse of a
child and his refusal to register as a sex offender. Mr. Crume's repeated violations of
the terms of his supervision, see United States v. Yahnke, 395 F.3d 823, 825-26 (8th
Cir. 2005), not all of which influenced his criminal history score, and his pattern of
engaging in sexual misconduct, would justify a conclusion that he would engage in
sexual abuse in the future to an extent that his criminal history does not fully capture.
Cf. United States v. Mugan, 394 F.3d 1016, 1026 (8th Cir. 2005). The district court,
therefore, did not abuse its discretion in departing upward for the purpose of
deterrence. See United States v. Carey, 898 F.2d 642, 646 (8th Cir. 1990).


                                          -4-
      After concluding that the sentence imposed, including the upward departure,
was consistent with the guidelines, we have little difficulty concluding that it was also
reasonable in light of the criteria of 18 U.S.C. § 3553(a). See Shannon, 414 F.3d at
924; cf. United States v. Lincoln, 413 F.3d 716, 717 (8th Cir. 2005).


       Mr. Crume also takes issue with the terms of his supervised release. A
sentencing judge is afforded wide discretion when imposing terms of supervised
release, see United States v. Crose, 284 F.3d 911, 912 (8th Cir. 2002) (per curiam),
and we review a decision to impose special terms of supervised release for abuse of
that discretion. United States v. Weiss, 328 F.3d 414, 417 (8th Cir. 2003). But this
discretion is limited by 18 U.S.C. § 3583(d), which provides that a court may impose
only those special conditions of supervised release that satisfy three statutory
requirements. First, the special conditions must be "reasonably related" to five
matters: the nature and circumstances of the offense, the defendant's history and
characteristics, the deterrence of criminal conduct, the protection of the public from
further crimes of the defendant, and the defendant's educational, vocational, medical
or other correctional needs. 18 U.S.C. §§ 3583(d)(1), 3553(a)(1), (a)(2)(B), (a)(2)(C),
(a)(2)(D); United States v. Fields, 324 F.3d 1025, 1026-27 (8th Cir. 2003). Second,
the conditions must "involve[] no greater deprivation of liberty than is reasonably
necessary" to advance deterrence, the protection of the public from future crimes of
the defendant, and the defendant's correctional needs. 18 U.S.C. §§ 3583(d)(2),
3553(a)(2)(B), (a)(2)(C), (a)(2)(D). Finally, the conditions must be consistent with
any pertinent policy statements issued by the sentencing commission. 18 U.S.C.
§ 3583(d)(3). Mr. Crume argues that the conditions imposed, including those
restricting his use of computers and the Internet, prohibiting him from being in places
where minor children congregate, and restricting his contact with children under the
age of eighteen, fail to satisfy the requirements of § 3583(d).




                                          -5-
       He first argues that the conditions of supervised release that completely bar his
access to computers and the Internet (without first receiving written consent from his
probation officer) represent a greater deprivation of his first amendment rights than
is reasonably necessary. Although the district court is entrusted with broad discretion
to fashion special conditions of supervised release, we are particularly reluctant to
uphold sweeping restrictions on important constitutional rights. Our decisions to
uphold similar restrictions on Internet access and computer use in United States v.
Ristine, 335 F.3d 692, 696 (8th Cir. 2003), and Fields, 324 F.3d at 1027, were "based
largely on two considerations," Ristine, 335 F.3d at 696. One of those considerations
was that there was evidence that the defendant used his computer and the Internet to
do more than merely possess child pornography. Id. We were careful to note in
Fields, 324 F.3d at 1027, that "[a]ppellate courts have overturned conditions seen as
overly restrictive, especially in cases involving simple possession of child
pornography," but "[i]n cases where defendants used computers or the internet to
commit crimes involving greater exploitation, such restrictions have been upheld."
In Fields, the defendant used his computer and the Internet to sell subscriptions to
pornographic images, id. at 1026-27, and in Ristine, 335 F.3d at 696, the defendant
exchanged images with other Internet users and attempted to use his computer and
the Internet to arrange sexual relations with underage girls.


      Although Mr. Crume has a lengthy history of grievous sexual misconduct, the
record is devoid of evidence that he has ever used his computer for anything beyond
simply possessing child pornography. We are not convinced that a broad ban from
such an important medium of communication, commerce, and information-gathering
is necessary given the absence of evidence demonstrating more serious abuses of
computers or the Internet. We are confident that the district court can 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



                                          -6-
ensure his compliance with this condition through some combination of random
searches and software that filters objectionable material.


       Mr. Crume also challenges a condition barring him "from places where minor
children under the age of 18 congregate such as residences, parks, beaches, pools,
daycare centers, playgrounds, and schools without the prior written consent of his
probation officer." He argues that this prohibition is not "reasonably related" to the
matters listed in the relevant statute because he has never engaged in sexual
misconduct in a public place. Furthermore, he asserts that it constitutes too great a
deprivation of liberty because it bars him from much of the common space of the
community and, by his reading, restricts him from all residences, whether or not
minor children live there. But in Ristine, 335 F. 3d at 696-97, we read a very similar
condition to prohibit the defendant's presence "only at those residences, parks ...
where children under the age of 18 actually congregate." So read, we held that such
a restriction, designed to limit a convict's access to children, was "sensible" and "not
overbroad." Id. We have little difficulty reaching the same conclusion here.


       Finally, Mr. Crume challenges the condition of his supervised release that
prohibits him from contact with children under the age of eighteen without the written
consent of his probation officer. He contends that this restriction constitutes an
unnecessary deprivation of his liberty interest in having contact with his own
children. But children, including those of Mr. Crume, are members of the public that
the terms of supervised release seek to protect. Cf. 18 U.S.C. §§ 3583(d)(1), (d)(2),
3553(a)(2)(C). In fact, the daughter with whom he desires contact is the child
conceived as the result of his impregnating a fourteen-year-old girl. The presentence
investigation report reflects that this now-adult woman remains fearful of Mr. Crume
and worries that he may try to molest her daughter.




                                          -7-
       The challenged condition, moreover, does not completely prohibit Mr. Crume
from interacting with his children. He may have contact with children, including his
own, with the written consent of his probation officer. We also note that we do not
agree with the defendant that this provision prohibits him from accepting a letter
written to him by one of his children. Accordingly, the district court did not abuse
its discretion by forbidding Mr. Crume from having contact with children under the
age of eighteen absent written consent.


       We affirm Mr. Crume's conviction and his 262-month prison sentence. But we
vacate special conditions of supervision two and four regarding Mr. Crume's access
to computers and the Internet and remand the case to the district court for further
proceedings not inconsistent with this opinion. We also call the district court's
attention to its intention to vacate Mr. Crume's conviction on Count II if his
conviction on Count I was affirmed.
                            ______________________




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