5th Circuit addresses CP sentencing, terms of release

The Fifth Circuit released a 38-page opinion today regarding sentencing enhancements and terms of supervised release in a child pornography case, United States v. Miller, 665 F.3d 114 (5th Cir. 2011). Miller appealed his 220-month sentence and release terms, but the judgment was affirmed by the appellate court.

Miller had pled guilty to the knowing transportation or shipment of child pornography. For sentencing purposes, the court found that he had possessed 495 images, engaged in sexually explicit chats with children, and requested child pornography exchanges via e-mail. The sentencing guidelines called for a range of 188 to 235 months in prison, and he was sentenced to 220 months. Before the Fifth Circuit, he argued that that sentence was unreasonable and was longer than necessary to satisfy the sentencing goals.

As part of his argument, he cited United States v. Dorvee (616 F.3d 174 (2d Cir. 2010)), a Second Circuit case that held Dorvee's sentence to be unreasonable because it would require more time in prison for distributing child pornography than for a person "actually engaged in sexual conduct with a minor." Addressing Dorvee, the Fifth Circuit held, "the Guidelines remain the Guidelines" and that "[i]t is for the Commission to alter or amend them."

Miller also made several arguments that sentencing enhancements should not have been applied or that his punishment should have been mitigated by other factors, but each argument was stuck down by the court.

The terms of supervised release included a normal provision preventing computer access without permission, but also one that he "shall  not  possess  or  use  any  phone  or  any  other electronic device  that allows access  to the internet without prior written permission from [the] probation officer" (Miller had possessed images of child pornography on his cell phone). The court held these terms not to be "overly broad and unduly restrictive" and appropriate for Miller's prior actions and offense. Further, the term is not an absolute ban because the probation officer can give permission. The court addressed how several circuits have decided similar cases, spanning 14 pages of the Miller opinion.

Another term Miller disputed was that he could "not own or possess any type of camera, photographic device, and or other electronic equipment." Despite no facts in the case involving the use of a camera, but he did use a web cam to communicate with children. Therefore, the condition was justified.

Miller also argued that a condition restricting his right to possess adult pornography violated his First Amendment rights. The court found a nexus between legal, adult pornography and his criminal history. He also argued that the provision should not include Playboy or "an art gallery exhibit of erotica," but the court found no plain error. His last argument was that it would ban the viewing of Michelangelo's David, but the court suggested "a commonsense reading" and again found no plain error.