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


5-28-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3549




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NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                      Case No: 06-3549

                             UNITED STATES OF AMERICA

                                                  v.

                                    RODERICK LONG,

                                               Appellant




                     On Appeal from the United States District Court
                         for the Western District of Pennsylvania
                               District Court No. 04-CR-159
                     District Judge: The Honorable Gustave Diamond


                    Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                     May 20, 2008

                     Before: SMITH, and NYGAARD, Circuit Judges,
                             and STAFFORD, District Judge *

                                    (Filed: May 28, 2008)


                                          OPINION


SMITH, Circuit Judge.

       Roderick Long, pursuant to the terms of a plea agreement containing a waiver of


       *
       The Honorable William H. Stafford, Jr., Senior United States District Judge for the
Northern District of Florida, sitting by designation.
his right to appeal his conviction or sentence, pleaded guilty to count two of a four-count

superceding indictment on March 8, 2006. Count two charged Long with violating 18

U.S.C. § 2252(a)(2) by knowingly receiving by computer visual depictions of a minor

engaging in sexually explicit conduct. The District Court for the Western District of

Pennsylvania sentenced Long to 121 months of imprisonment. In addition, the District

Court imposed a term of supervised release, for life, with conditions, inter alia, that

limited Long’s access to computers and to certain materials depicting or describing

sexually explicit conduct as defined in 18 U.S.C. § 2256(2). This timely appeal

followed.1

       Long’s appeal raises two issues: (1) whether, pursuant to an explicit reservation in

his plea agreement, the District Court correctly calculated the offense level used in

computing his sentencing guideline range; and (2) whether the District Court erred by

imposing as conditions of his period of supervised release the limitations of his computer

use and his access to materials depicting or describing sexually explicit conduct. The

government contends that Long’s appellate waiver bars our review of the terms of

supervised release imposed by the District Court. We agree.

       In United States v. Khattak, 273 F.3d 557 (3d Cir. 2001), we held that “waivers of

appeals, if entered into knowingly and voluntarily, are valid.” Id. at 562. Long does not



       1
         The District Court exercised jurisdiction pursuant to 18 U.S.C. § 3231. Appellate
jurisdiction exists under 28 U.S.C. § 1291, and 18 U.S.C. § 3742(a). See United States v.
Cooper, 437 F.3d 324, 327-28 (3d Cir. 2006).

                                                2
contend that his waiver was unenforceable because it was either unknowing or

involuntary.2 Instead, Long argues that the conditions of his supervised release may be

considered on appeal because the appellate waiver, which must be strictly construed

under Khattak, pertained to only the length of his confinement and the period of

supervised release. In addition, he asserts that conditions at issue here were excepted

from the appellate waiver because they do not appear among the mandatory and

discretionary conditions set forth in 18 U.S.C. § 3583(d).

       In interpreting the scope of the appellate waiver, we are mindful that 18 U.S.C. §

3583(a) provides that “[t]he court, in imposing a sentence to a term of imprisonment for a

felony . . . may include as a part of the sentence a requirement that the defendant be

placed on a term of supervised release after imprisonment.” Id. (emphasis added).

Subsection (c) of this statutory provision specifies certain mandatory and discretionary

conditions of supervised release that a defendant must comply with during any such term

of supervision. 18 U.S.C. § 3583(d). This subsection further provides that “[t]he court


       2
         We note that Long might have argued that his appellate waiver was unenforceable as the
District Court did not fully comply with the directive in Federal Rule of Criminal Procedure
11(b)(N), which requires a district court to “inform the defendant of, and determine that the
defendant understands . . . the terms of any plea-agreement provision waiving the right to
appeal.” Long waived any such argument, however. Laborers’ Int’l Union v. Foster Wheeler
Corp., 26 F.3d 375, 398 (3d Cir. 1994) (observing that “an issue is waived unless a party raises it
in its opening brief”); Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993) (observing that
“where an issue is raised for the first time in a reply brief, we deem it insufficiently preserved for
review before this court”). For that reason, we find the appellate waiver is enforceable and we
will not review Long’s challenge to the conditions of supervised release unless the waiver fails
to encompass this claim.


                                                  3
may order, as a further condition of supervised release . . . any other condition it considers

to be appropriate.” Id. Thus, the duration and the conditions of supervised release are

components of a sentence. By waiving his right to take a direct appeal of his sentence,

Long waived his right to challenge the conditions of his supervised release, which were

part of that sentence.

       The appellate waiver, however, does not bar our review of whether the District

Court erred in calculating his offense level inasmuch as the plea agreement explicitly

reserved that issue for appeal. Long contends that the District Court erred by concluding

that U.S.S.G. § 2G2.2(c)’s cross-reference applied. The cross-reference comes into play

“[i]f the offense involved causing, transporting, permitting or offering or seeking by

notice or advertisement, a minor to engage in sexually explicit conduct for the purpose of

producing a visual depiction of such conduct . . . .” U.S.S.G. § 2G2.2(c). According to

Long, the cross-reference had no bearing on his offense level because his instant

messages neither caused the production of child pornography nor constituted a “notice.”

       We find no error in the District Court’s application of U.S.S.G. § 2G2.2(c)’s cross-

reference. The plain text of the guideline demonstrates that Long did not have to cause

the production of child pornography. Rather, the cross-reference applies to a broad range

of conduct, including “seeking by notice,” and this record establishes that Long’s instant

messages requested “pics” of the minor. See U.S.S.G. § 2G2.2(c), and application note 5.

We agree with the Tenth Circuit’s analysis in United States v. Garcia, 411 F.3d 1173


                                              4
(10th Cir. 2005), which rejected a narrow interpretation of the cross-reference. The

Garcia Court explained that the “conduct the guideline seeks to punish is not only the

actual production of child pornography, but the active solicitation for the production of

such images.” Id. at 1179.

       Long’s argument that his instant messages did not qualify as “notice” under the

cross-reference also lacks merit. As Long concedes, we rejected a similar argument in

United States v. Harrison, 357 F.3d 314 (3d Cir. 2004). There, we concluded that the

term “notice” encompassed “the communication of information to another party” and that

Harrison’s e-mail constituted a notice for purposes of a related provision in guideline

§ 2G2.2. Because Long’s instant messages requested “pics” of the minor and conveyed

information to another party, we conclude that these instant messages also constituted

“notice” under § 2G2.2(c)’s cross-reference.

       We will affirm the judgment of the District Court.




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