                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-7-2003

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-1478




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 02-1478




                          UNITED STATES OF AMERICA

                                           v.

                                 KARL ALBRIGHT,
                                            Appellant




                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                             D.C. Criminal No. 01-cr-00089
                                (Honorable Yvette Kane)




                               Argued February 25, 2003

           Before: BECKER, Chief Judge*, and SCIRICA**, Circuit Judges,
                        and SHADUR, District Judge***

                                 (Filed : July 7, 2003)




   *Judge Becker completed his term as Chief Judge on May 4, 2003.

   **Judge Scirica succeeded to the position of Chief Judge on May 4, 2003.

   ***The Honorable Milton I. Shadur, United States District Judge for the Northern
District of Illinois, sitting by designation.
ANTHONY T. McBETH, ESQUIRE (ARGUED)
407 North Front Street, First Floor
Harrisburg, Pennsylvania 17101

      Attorney for Appellant


CHRISTIAN A. FISANICK, ESQUIRE (ARGUED)
Office of United States Attorney
235 North Washington Avenue, Suite 311
P.O. Box 309
Scranton, Pennsylvania 18501

THEODORE B. SMITH, III, ESQUIRE
Office of United States Attorney
Federal Building, Suite 220
228 Walnut Street
P.O. Box 11754
Harrisburg, Pennsylvania 17108

      Attorneys for Appellee




                               OPINION OF THE COURT


SCIRICA, Circuit Judge.

      Defendant Karl Albright challenges his resentencing following his violation of

probation. He contends the District Court erred in basing his sentence on a Sentencing

Guidelines enhancement for the use of a computer in connection with a child pornography

offence. We will vacate the judgment of sentence and remand.




                                            2
                                               I.

         In 1999, Albright—twenty-one years old and living with his parents—used a

device called “WebTV”1 to access the internet. The device—an “Internet-access

device”— is an electronic box that connects to a television set, permitting the user to

exchange e-mail and to view internet sites on his television. The version used by Albright

contained no hard drive or other enduring storage capabilities. Albright could not,

therefore, download information from the internet to store on a hard drive. Nor could he

operate the device to run software other than the software contained in the device

allowing internet access.

         At that time, police in Dallas, Texas were conducting an internet sting operation

designed to catch those involved in the distribution of child pornography, including its

consumers. Albright—using his WebTV— responded to an advertisement he found in a

newsgroup. Over the course of two weeks, Albright corresponded by e-mail with a Dallas

detective concerning video tapes for sale. Ultimately, Albright requested a list of tapes

containing girls aged five to fifteen engaged in sexual acts. The detective responded with

a list of tapes from which Albright ordered a tape, sending a fifty-dollar money order to

the detective.

         Albright received a tape some time later. Because it was for use in a sting

operation, it contained only a few minutes of footage. After viewing it, Albright


   1
       The current version of what was WebTV is now sold under the name “MSNTV.”

                                               3
responded by sending the detective an angry letter claiming he had been taken advantage

of.

          Following his initial contact with Albright, the Dallas detective contacted the

United States Postal Inspection Service. After the tape was delivered, a search warrant

was executed at Albright’s parents’ house. The videotape was found in Albright’s

videocassette recorder, having been viewed.

          On March 30, 2001, under a written plea agreement, Albright pleaded guilty to one

count of possessing child pornography that had been transported in interstate commerce,

in violation of 18 U.S.C. § 2252(a)(4)(B). The statute authorizes up to five years’

imprisonment or probation. § 2252(b)(2).

          Albright’s presentence report calculated his total offense level at sixteen. His base

offense level was fifteen. U.S.S.G. § 2G2.4. But two enhancements were recognized as

applicable. First, because the pornographic material involved a minor under the age of

twelve, a two-level enhancement applied. § 2G2.4(b)(1). Second, because the probation

office determined that Albright’s possession “resulted from the defendant’s use of a

computer,” another two-point enhancement was recommended. § 2G2.4(b)(3). The

adjusted offense level of nineteen was reduced by three points for acceptance of

responsibility, resulting in the total offense level of sixteen, and a guideline range for a

defendant with no significant criminal history of twenty-one to twenty-seven months in

prison.



                                                4
       Albright objected to the enhancement for “use of a computer,” an objection in

which the government concurred. The government also moved, under section 5K1.1 of

the Sentencing Guidelines, for a downward departure based on defendant’s substantial

assistance to law enforcement. The motion suggested the departure be at least one level,

but acknowledged that the court might want to depart further.

       The District Court rejected Albright’s and the government’s position with respect

to Albright’s use of a computer. The court accepted the parties’ claim that the WebTV

device is not itself a computer, but stated, “It is obviously connected to some computer

somewhere or would be of no use to anybody in connecting to the internet, so there is a

computer here as I see it.” The court adopted the presentence report’s calculation of the

sentencing guidelines.

       Nevertheless, the court substantially departed downward from this calculation,

stating “Mr. Albright is not the typical offender that I have seen in these cases.” The court

sentenced Albright to five years’ probation. He was required to reside at a community

corrections facility (half-way house) for the first six months, followed by four months’

house arrest. Albright was permitted to continue working at a drug store during his stay at

the half-way house.

       Albright served the first part of his sentence at Conewago Wernersville Half-Way

House in Wernersville, Pennsylvania. Albright acknowledged that he was told that he

could not possess pornographic materials at the half-way house. Nevertheless, during a



                                              5
routine search of residents’ possessions, the staff found and confiscated several

pornographic magazines from Albright. Although some apparently focused on young

women, none of the materials contained child pornography.

       On January 15, 2002, Albright was removed from the half-way house and expelled

from the program for possessing pornography. The director of the facility cited a rule that

reads, in part, “No resident may possess or bring into the facility any written or pictorial

material that would encourage illegal behavior, particularly violence, drug use, or sexual

contact.”

       Albright contended he did not violate this rule because there was no basis for

concluding that his possession of sexually explicit material “would encourage illegal

behavior.” Accordingly, he argued that his expulsion from the facility was wrongful. The

District Court disagreed, concluding that Albright’s failure to abide by the half-way

house’s rules constituted a violation of probation. At a January 24, 2002 hearing, the

District Court revoked Albright’s probation.

       The court resentenced Albright, imposing a period of incarceration it understood to

be authorized by the original guideline determination prior to the court’s downward

departure—twenty-four months. The District Court stated:

       In spite of substantial consideration from the Court at the time of the initial
       sentencing, M r. Albright violated the rules of the Warnersville facility in his
       unsuccessful discharge from that facility. In light of the nature of Mr.
       Albright’s criminal conviction and his subsequent possession of prohibited
       pornographic materials in the community correction center, a sentence of 24
       months, which is within the original sentencing guideline range, is believed

                                               6
          necessary to sanction Mr. Albright, to deter others, to promote respect for
          the law and to protect the community. (Emphasis added).

          Albright appealed the sentence.

                                                II.

          Albright contends the twenty-four-month sentence imposed was not, as the District

Court stated, within the original guidelines, because the District Court had erred in

calculating the offense level at sentencing. Had the District Court not found that Albright

used a computer in connection with his offense, his offense level would have been

fourteen, which provides a range of fifteen to twenty-one months’ incarceration.

Consequently, Albright argues, the twenty-four-month sentence imposed by the court was

outside of the original guideline range and was, for that reason, impermissible.

          The government disputes the merits of Albright’s claim. But the government also

contends the District Court’s sentence is not now subject to review.2 Our review of

criminal sentences is limited by statute. Under 18 U.S.C. § 3742(a), 3 we may inquire only

   2
    The government speaks of Albright’s claim being “moot.” But mootness, as
commonly understood in this context, addresses whether there is a live underlying
controversy between the parties. Albright has not completed the requirements of his
sentence, so there is no question of mootness here.
   3
       The statute provides:
         A defendant may file a notice of appeal in the district court for review of an
         otherwise final sentence if the sentence—
         (1) was imposed in violation of law;
         (2) was imposed as a result of an incorrect application of the sentencing
         guidelines; or
         (3) is greater than the sentence specified in the applicable guideline range to
                                                                                  (continued...)

                                                7
into whether the sentence was “imposed in violation of law,” “as a result of an incorrect

application of the sentencing guidelines,” or was “plainly unreasonable.” The government

contends there is no basis for challenging a sentence for violation of probation based on

the original guidelines under this framework.4

                                            III.

       Before September 1994, when courts revoked probation, they were required, in

most cases, to impose a sentence “that was available under subchapter A at the time of the



   3
   (...continued)
       the extent that the sentence includes a greater fine or term of imprisonment,
       probation, or supervised release than the maximum established in the
       guideline range, or includes a more limiting condition of probation or
       supervised release under section 3563(b)(6) or (b)(11) than the maximum
       established in the guideline range; or
       (4) was imposed for an offense for which there is no sentencing guideline
       and is plainly unreasonable.
18 U.S.C. § 3742(a).
   4
    The government also contends Albright cannot challenge the District Court’s
determination that he had used a computer in connection with his offense because he
failed to appeal his original sentencing. (As noted, at sentencing, Albright protested the
computer enhancement.) Because the court initially imposed a probationary sentence,
there was no reason for Albright to challenge that sentence. In any event, on these facts
we believe Albright may appeal his later sentence.
        The cases cited by the government in support of its position address the ability to
challenge, following revocation, conditions of supervised release or of probation. See
United States v. Loy, 237 F.3d 251, 256-58 (3d Cir. 2001) (recognizing ability to
“consider the legality of conditions of supervised release at the time of their imposition,
rather than only in the context of an appeal from a revocation proceeding”); United States
v. Stine, 646 F.2d 839, 844 (3d Cir. 1981) (mentioning fact that defendant had not
appealed challenged condition of probation at time of sentence in declining to consider
appeal). Albright, by contrast, is not challenging a condition of his probation or any other
condition imposed upon him at the original sentencing hearing.

                                             8
initial sentencing.” 18 U.S.C. § 3565(a)(2) (1993). We interpreted this section as

requiring that “the sentence imposed upon revocation of probation cannot exceed the

sentencing range available at the time of the initial sentencing for the underlying crime. ”

United States v. Boyd, 961 F.2d 434, 438 (3d Cir. 1992). But the statute was amended in

1994. Under the amended statute, courts are required only to “resentence the defendant

under subchapter A.” 18 U.S.C. § 3565(a)(2). Subchapter A requires a sentencing court to

“consider … in the case of a violation of probation or supervised release, the applicable

guidelines or policy statements issued by the Sentencing Commission.” § 3553(a)(4)(B).

As we discuss, at issue here are “policy statements,” not guidelines. With respect to 18

U.S.C. § 3565(a)(2), every appellate court to address the issue has read the current statute

to mean that “the district court is not restricted to the range applicable at the time of the

initial sentencing.” United States v. Hudson, 207 F.3d 852, 853 (6th Cir. 2000); see also

United States v. Tschebaum, 306 F.3d 540 (8th Cir. 2002); United States v. Cook, 291

F.3d 1297 (11th Cir. 2002); United States v. Schaefer, 120 F.3d 505, 507 (4th Cir. 1997)

(Section 3565(a)(2) “plainly permits a district court to begin the sentencing process anew

and to impose any sentence appropriate under the provisions of subchapter A.”).

       We agree that § 3565(a)(2) no longer imposes an explicit limit on a sentence

imposed after a probation violation. In other words, this section does not restrict the court

at resentencing after a violation of probation to the upper sentencing range available at

the time of the initial sentencing. The amended statute requires only that courts consider



                                               9
the guidelines and policy statements in the United States Sentencing Commission

Guidelines Manual.

       Here, the Sentencing Manual recommends a sentence range of three to nine

months for Albright’s violation of probation. U.S.S.G. § 7.B1.4. But these are not true

“guidelines” for sentences for revocation of probation. Instead, the Sentencing

Commission has chosen to issue non-binding “policy statements” governing sentencing

for violation of probation and supervised release. U.S.S.G. § 7. “The Sentencing

Commission has not yet promulgated any binding probation revocation guidelines;

instead, the Sentencing Commission has opted for the flexibility of advisory policy

statements, which are nonbinding on the courts.” Cook, 291 F.3d at 1301.

       In sum, 18 U.S.C. § 3565(a)(2) contains no limits on sentences for violation of

probation and requires courts only to “consider” the guidelines and policy statements of

the Sentencing Commission. The Sentencing Commission has chosen only to promulgate

non-binding recommendations for the appropriate sentence. Accordingly, neither the

statute nor the Guidelines contain express restrictions on such sentences.

                                             A.

       But this does not end our consideration of Albright’s claims. We may still consider

whether the sentence was contrary to law and whether it was plainly unreasonable.

       The statute provides that the district court “shall consider” any policy statements

by the Sentencing Commission. 18 U.S.C. § 3553(a)(4)(B) (emphasis added). In



                                             10
resentencing here, the District Court stated that its determination was made “after having

considered the policy statements in Chapter 7.”

       District courts are also required to consider general sentencing considerations set

forth in § 3553(a). In the District Court’s explanation for its sentence, prominent was its

statement that it viewed the twenty-four-month sentence as being “within the original

sentencing guideline range.” Thus, despite that under §§ 3565 and 3553, the District

Court was not required to consider the initial guidelines, nor was it restricted by the upper

limits of the original guidelines, it appears that the court’s interpretation of the original

guidelines played an important—perhaps determinative—role in the court’s choosing a

twenty-four-month sentence—a sentence in the middle of what the District Court

understood to be the sentencing guideline range. Accordingly, whether or not the sentence

was imposed in violation of law, it appears to have been largely based on what may have

been an erroneous interpretation of the Sentencing Guidelines, resulting in a sentence the

District Court may not have intended.

       The District Court did not find, and the government does not argue, that a WebTV

device is itself a computer within the meaning of section 2G2.4(b)(3) of the Sentencing

Guidelines. Nevertheless, the District Court still found the enhancement to apply, stating,

“I don’t think that this M SNTV device is in and of itself a computer. It is obviously

connected to some computer somewhere or would be of no use to anybody in connecting

to the internet, so there is a computer involved here as I see it.”



                                               11
       It is possible that the District Court may have adopted too broad a view of the

scope of this enhancement. Two considerations guide our views. First, that a device is

connected to a computer does not necessarily mean that the user of that device has “used”

a computer. A person may use his telephone to connect to a computerized telephone

ordering system. But it does not necessarily follow that he had “used a computer” in any

common-sense meaning of that phrase. On the other hand, it may be possible to use a

computer remotely. Using a device to operate a remote computer in the same ways that

the computer would be operated by a local user might well amount to “use of [that]

computer.” Whatever the extent of this category, however, merely connecting to a

computer—or having a computer “involved”—may not be enough to warrant

enhancement for “use of a computer.”

       Viewing the provision in the context of other guidelines supports a narrow

approach. Notably, the Sentencing Commission’s has used the term “Internet-access

device” in section 2G2.1, which applies an enhancement for “the use of a computer or an

Internet-access device” in the sexual exploitation of a minor. (Emphasis added). The

Sentencing Commission could have done the same in 2G2.4(b)(3), but did not. It appears

the commission did not view use of an Internet-access device as necessarily involving the

use of a computer. But the District Court’s view implies that the use of an Internet-access

device necessarily involves the use of a computer, which would render the additional

phrase in section 2G2.1 redundant.



                                            12
         We also recognize that any remaining ambiguity should be resolved in favor of

Albright. “The Sentencing Guidelines are read according to the canons of statutory

interpretation,” United States v. Johnson, 155 F.3d 682, 683 (3d Cir.1998), including “the

established rule of construction that ambiguity concerning the ambit of criminal statutes

should be resolved in favor of lenity.” United States v. Rosenberg, 806 F.2d 1169, 1176-

77 (3d Cir. 1986) (quotation omitted). Accordingly, “where, as here, the Guidelines do

not clearly call for enhancement, the rule of lenity should prevent the application of a

significantly increased sentence.” United States v. Fenton, 309 F.3d 825, 828 n.3 (3d Cir.

2002).

         In light of this, we think the best course is to permit the District Court the

opportunity to reexamine Albright’s sentence. If the District Court did view its

understanding of the original guidelines as playing a role in determining Albright’s

sentence, the court may wish to revisit the applicability of section 2G2.4(b)(3) to users of

Internet-access devices. Such consideration should take into account that merely

connecting a non-computer to a computer may not necessarily imply the use of a

computer. The District Court should also consider the Sentencing Commission’s apparent

different treatment of Internet-access devices and computers, as well as the rule of lenity.

The District Court is not bound by section 2G2.4(b)(3). Nor is the District Court

precluded from considering alternatives to further incarceration in resentencing Albright.




                                                13
       For the foregoing reasons, we will vacate defendant’s sentence and remand for

reconsideration of the sentence.




                                           14
TO THE CLERK:

         Please file the foregoing opinion.




                                              Anthony J. Scirica
                                              Chief Judge
