On Appeal from the District Court for the Middle District of Pennsylvania (No. 04-cr-0027) District Judge: Honorable Malcolm Muir.
The opinion of the court was delivered by: Fuentes, Circuit Judge
Argued September 14, 2009
Before: SLOVITER, FUENTES, and SMITH, Circuit Judges.
Appellant Donald R. Miller was sentenced to thirty months' imprisonment and a lifetime term of supervised release following his conviction for possession of child pornography and possession of marijuana. The District Court imposed eight special conditions of supervised release, including a restriction on internet access, mandatory computer monitoring, and a limitation on association with minors. On appeal, Miller challenges the duration of his term of supervised release and four of the eight special conditions. We agree with Miller that the lifetime limitation on internet use is a greater restraint of liberty than is reasonably necessary and that the restriction on his association with minors is overbroad. Accordingly, we will vacate and remand to the District Court for further proceedings consistent with this opinion.
In January 2004, the Federal Bureau of Investigation ("FBI") searched Miller's house after discovering that his computer had been identified (based on its IP address) as the source of images of child pornography that were uploaded onto an internet server in Utah. The FBI agents seized Miller's computer and twenty-two computer zip disks. One of the disks contained more than 1200 pornographic images. Approximately eleven of the images depicted child pornography. The adult pornography apparently included five images that could arguably be characterized as sadomasochistic. United States v. Miller, 527 F.3d 54, 78 (3d Cir. 2008) ("Miller I"). The same search uncovered a small amount of marijuana in his house.
At his 2006 trial, Miller argued that he had not downloaded the child pornography images. He testified that he had never seen the images, did not knowingly copy them to the zip disk, and looked only at legal adult pornography, characterizing his collection as "[p]rimarily Playboy centerfolds." Id. at 74. He suggested that the images might have been downloaded by a computer hacker, noting that around the time that they were downloaded, he had been the victim of a billing fraud for a pornography website. A defense expert offered testimony that the images were among several hundred copied onto the zip disk in periodic intervals over a seven-hour period, indicating that they might have been copied automatically, perhaps by a computer virus. The expert also explained that a user might inadvertently download multiple image files when he believes he is downloading only one. This testimony was countered by a government agent, who noted that the images on the zip disk had been "extracted" and thus were not the type of "embedded" files described by the defense. Id. at 66. The agent also expressed doubt that anyone would hack into another person's dial-up internet connection to transmit data that would be attributed to that person's IP address, id., or that any virus existed that would download child pornography onto a person's computer, id. at 63 n.8.
Despite Miller's defense, the jury convicted him on three counts of the five-count Indictment: (1) knowingly receiving child pornography, in violation of 18 U.S.C. § 2252A(a)(2); (2) knowingly possessing child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B); and (3) possession of marijuana, in violation of 21 U.S.C. § 844(a). Miller was acquitted on two counts, transporting and shipping child pornography by computer and receiving and distributing child pornography by computer. The District Court calculated Miller's total offense level as 23, including a two-level enhancement for obstruction of justice based on his purported perjury in denying at trial that his pornography collection included any sadomasochistic images.*fn1 With a criminal history category of I, the advisory Guidelines range was 46 to 57 months' imprisonment. The District Court sentenced Miller to 46 months' imprisonment on the first two counts and 12 months' imprisonment on the marijuana count, to be served concurrently, and imposed a life term of supervised release for the possession of child pornography offense. At the time of the sentencing, Miller was sixty years old; he is now sixty-three years old.
In his first appeal, Miller challenged his conviction on the first two counts on several grounds, including his contention that separate convictions for receiving and possessing the same images of child pornography violated the Double Jeopardy Clause. This Court ruled in Miller's favor on the double jeopardy issue and his challenge to the obstruction of justice enhancement and remanded to the District Court to vacate one of the two child pornography convictions and resentence Miller without the obstruction of justice enhancement. Miller I, 527 F.3d at 54. Miller did not challenge the duration or conditions of his term of supervised release in his first appeal.
On remand, the District Court vacated the conviction for knowing receipt of child pornography and resentenced Miller solely on the knowing possession of child pornography and marijuana counts. Without the enhancement for obstruction of justice, Miller's total offense level was 19, resulting in an advisory Guidelines range of 30 to 37 months, with a mandatory supervised release term of five years to life pursuant to 18 U.S.C. § 3583(k). At an October 7, 2008 sentencing proceeding, the District Court sentenced Miller to 30 months' imprisonment to be followed by a life term of supervised release. The Court also imposed eight special conditions of supervised release, including four that are at issue in this appeal: Miller was required to participate in a sex offender treatment program at his own expense (Special Condition 1); he was barred from "associat[ing] with children under the age of 18, except in the presence of an adult who has been approved by the probation officer" (Special Condition 3); he was prohibited from using a computer with internet access "without the prior written approval of the [p]robation [o]fficer" (Special Condition 4); and he was required to submit to random inspections of his computer and permit the installation of software to monitor his computer use (Special Condition 7). (App. 6.) At the conclusion of the proceeding, Miller objected to these supervised release conditions, arguing that they were not "reasonably related to the offense conduct in this case." (Id. at 95.) On October 8, 2008, the District Court filed an Order formalizing the oral rulings made at the sentencing proceeding, including the vacation of the receipt of child pornography count and the entry of conviction on the possession count ("October Order"). This Order did not mention the term of supervised release. The District Court filed a Judgment setting forth the full sentence on October 15, 2008. On the same day, the District Court signed a Statement of Reasons explaining the sentence, which is dated October 7, 2008.
On October 14, 2008, Miller filed a motion to correct his sentence under Federal Rule of Criminal Procedure 35(a), challenging both the supervised release term and the special conditions. On October 20, 2008, Miller timely appealed his sentence to this Court. In a November 17, 2008 Order (the "November Order"), the District Court granted the Rule 35(a) motion in part. While acknowledging Miller's appeal, the Court stated that it still had jurisdiction to address the Rule 35(a) motion because the Government had not challenged its jurisdiction. In addition, the District Court relied on Federal Rule of Appellate Procedure 4(b)(5), which states that the filing of a notice of appeal "does not divest a district court of jurisdiction to correct a sentence under Federal Rule of Criminal Procedure 35(a)."
In substance, the November Order largely affirmed the supervised release term and the conditions imposed in the October sentencing, but it contained a much more thorough explanation of the Court's reasoning. The District Court justified the lifetime term based on the high rate of recidivism among sex offenders and a Sentencing Guidelines policy statement recommending the imposition of the statutory maximum supervised release term on convicted sex offenders, including child pornography offenders. The District Court also relied on Miller's mischaracterization of the nature of his pornography collection as "Playboy centerfold" images, despite his possession of five images allegedly depicting sadomasochism, and his continuing denial of any involvement in the possession of child pornography. Lastly, the District Court explained that the lifetime term was not greater than reasonably necessary as it could be terminated if, in the future, there was no need to continue Miller's supervision. As to the special conditions, the District Court indicated that the factors supporting the lifetime term also provided a basis for each of the four restrictions at issue.
The November Order altered Miller's sentence in two respects. First, the District Court agreed that Special Condition 3-the bar on Miller's association with minors-was overly broad based on a non-precedential decision of this Court rejecting similar language. See United States v. Smyth, 213 F. App'x 102, 106--07 (3d Cir. 2007). Therefore, the Court modified the condition to include exceptions for "brief, unanticipated, and incidental contacts" with minors and for contacts with Miller's own family members or children. (App. 107.)
Second, although disagreeing with Miller's characterization of Special Conditions 4 and 7 as imposing a complete ban on his ability to access the internet, the District Court sought to minimize confusion by moving the text of Special Condition 7 to the end of Special Condition 4 "so that both conditions are read together." (Id. at 108.) This new, combined special condition reads as follows:
The defendant shall not use a computer with access to any "on-line computer service" without the prior written approval of the [p]robation [o]fficer. This includes any [i]nternet service provider, bulletin board system, or any other public or private computer network[.] The defendant shall submit to an initial inspection by the U.S. Probation Office and to any examinations during supervision of the defendant's computer and any devices, programs, or applications. The defendant shall allow the installation of any hardware or software systems which monitor or filter computer use. The defendant shall abide by the standard conditions of computer monitoring and filtering that will be approved by this Court. The defendant is to pay the cost of the computer monitoring, not to exceed the monthly contractual rate, in accordance with the probation officer's direction[.]
(Id. at 106--07.) In all other respects, the District Court denied Miller's Rule 35(a) motion. On appeal, Miller challenges the sentence imposed by the District Court, arguing that the lifetime duration of his term of supervised release and Special Conditions 1, 3, 4, and 7 subject him to a greater deprivation of liberty than is reasonably necessary.*fn2
We first address the Government's argument that Miller has waived any right to challenge his sentence. According to the Government, Miller waived the arguments that he now advances by failing to raise them during his first appeal to this Court; therefore, the District Court's judgment must be affirmed in all respects. Miller disagrees, arguing that because his second sentencing was de novo, the arguments were not waived and we are therefore free to review his challenge to the length of his term and the special conditions of his supervised release. Should we agree with Miller, we must also determine whether our review is limited to the District Court's October Order, which offers limited reasoning for the Court's sentencing decision, or if we can consider the District Court's November Order ruling on Miller's motion under Federal Rule of Criminal Procedure 35(a), which contains a more detailed statement of reasons but was issued beyond the seven-day period required by Rule 35(a).
Although the District Court imposed the same lifetime term and special conditions in the original sentencing in this case, Miller did not challenge the supervised release aspect of his sentence in his first appeal. Consequently, the Government, invoking the authority of United States v. Pultrone, 241 F.3d 306 (3d Cir. 2001), contends that Miller waived his arguments regarding his term of supervised release.*fn3
Pultrone had been convicted of attempted possession of cocaine with intent to distribute and was sentenced to 76 months' imprisonment. Pultrone filed an appeal, and the Government cross-appealed on the ground that the district court had failed to apply a mandatory statutory minimum sentence of ten years' imprisonment. Pultrone voluntarily withdrew his appeal; we remanded for application of the statutory minimum. Pultrone was accordingly sentenced to 120 months' imprisonment, a sentence he appealed. Assessing whether we had jurisdiction over the second appeal, we held that Pultrone had waived all of the arguments contained therein because "[e]ach of these allegations of error could and should have been raised in that [first] direct appeal; because Pultrone voluntarily withdrew the appeal, he failed to preserve these issues." Id. at 307; accord United States v. Quintieri, 306 F.3d 1217, 1225 (2d Cir. 2002) (holding that the law of the case doctrine forecloses the appellate court from reconsidering issues decided by a previous appellate panel or previously waived by the defendant); United States v. Marmolejo, 139 F.3d 528, 530--31 (5th Cir. 1998) (holding that the defendant had waived his argument regarding the obstruction of justice enhancement as he did not raise it on appeal from his original sentencing); United States v. Walterman, 408 F.3d 1084, 1085--86 (8th Cir. 2005) (same); United States v. Whren, 111 F.3d 956, 959--60 (D.C. Cir. 1997) (same). Accordingly, we dismissed Pultrone's second appeal for lack of jurisdiction. Pultrone, 241 F.3d at 308.
Pultrone and the other court of appeals cases we cite recognize an exception to the waiver doctrine. "[W]hen a case is remanded for de novo resentencing, the defendant may raise in the district court and, if properly preserved there, on appeal to the court of appeals, issues that he or she had previously waived by failing to raise them." Quintieri, 306 F.3d at 1225. In contrast, in Pultrone, we were addressing a limited resentencing rather than a de novo proceeding. 241 F.3d at 308. In that posture, we noted that as the proceeding on remand "reflected only our direction that the statutory minimum sentence be imposed" and "because Pultrone abandoned his appeal, no other aspect of his conviction or sentence was at issue. In this circumstance, '[t]he grant of remand on appeal does not reopen the order appealed from . . . .'" Id. (quoting United States v. Mendes, 912 F.2d 434, 437--38 (10th Cir. 1990)); accord Whren, 111 F.3d at 960 (instructing that "upon a resentencing occasioned by a remand, unless the court of appeals expressly directs otherwise, the district court may consider only such new arguments or new facts as are made newly relevant by the court of appeals' decision . . . ."); Marmolejo, 139 F.3d at 531 (same); Walterman, 408 F.3d at 1085 (same). As stated in Quintieri, however, when the resentencing is de novo rather than limited, issues concerning the first sentence that were previously waived may be raised in the first instance if warranted by the second sentence. Miller argues that this exception applies because his second sentencing was essentially de novo.
Our sister circuits are divided over whether a district court absent specific direction should generally treat a vacation and remand of a sentence as a de novo resentencing or as a limited proceeding in which the sentencing court revisits only the particular issues identified as grounds for remand. See Quintieri, 306 F.3d at 1228 n.6 (collecting cases on both sides of the circuit split). In those circuits that have adopted a de novo sentencing default rule, resentencing is de novo absent explicit direction otherwise from the remanding appellate court. See, e.g., United States v. Jennings, 83 F.3d 145, 151 (6th Cir. 1996) (creating a default rule of de novoresentencing), amended by 96 F.3d 799 (6th Cir. 1996); United States v. Cornelius, 968 F.2d 703, 705--06 (8th Cir. 1992) (same); United States v. Ponce, 51 F.3d 820, 826 (9th Cir. 1995) (same); United States v. Stinson, 97 F.3d 466, 469 (11th Cir. 1996) (same).
Other circuits follow a default rule of limited resentencing, in which resentencing is not considered to be de novo unless expressly designated as such. In these circuits, "upon a resentencing occasioned by a remand, unless the court of appeals expressly directs otherwise, the district court may consider only such new arguments or new facts as are made newly relevant by the court of appeals' decision-whether by the reasoning or by the result." Whren, 111 F.3d at 960; accord United States v. Wallace, 573 F.3d 82, 88 & n.5 (1st Cir. 2009); United States v. Lee, 358 F.3d 315, ...