BEAM, Circuit Judge.
This is defendant Randall Muhlenbruch's second appeal in this child pornography case. In the first appeal, United States v. Muhlenbruch, 634 F.3d 987 (8th Cir.), cert. denied, ___ U.S. ___, 132 S.Ct. 228, 181 L.Ed.2d 127 (2011) (Muhlenbruch I), we held that Muhlenbruch's convictions for both receiving child pornography, in violation of 18 U.S.C. § 2252(a)(2), and possessing child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B), violated the Double Jeopardy Clause. Muhlenbruch I, 634 F.3d at 1003-04. Therefore, we reversed and remanded with instructions for the district court to exercise its discretion to vacate one of Muhlenbruch's convictions and to resentence Muhlenbruch on the remaining count. Id. at 1004-05. On remand, the district court
On remand, pursuant to our instructions in Muhlenbruch I, the district court held a hearing to decide which conviction to vacate and to resentence Muhlenbruch on the remaining count. At the hearing, the government argued that the court should vacate the lesser-included possession conviction
The district court then proceeded to resentence Muhlenbruch on the receipt count. Initially, the court calculated Muhlenbruch's advisory Guidelines range at 151 to 188 months' imprisonment based on a criminal history category of II and an offense level of 33. Then, the court sustained Muhlenbruch's motion for a downward departure based on an overstated criminal history and, applying a criminal history category of I, calculated a Guidelines range of 135 to 168 months' imprisonment. Muhlenbruch requested a downward variance, claiming the child pornography Guideline is not based on empirical research and emphasizing Muhlenbruch's good behavior in prison. The district court declined to vary downward on these bases, but did vary downward to a sentence of 120 months' imprisonment because the case had been pending for a long time. The court also imposed a five-year term of supervised release with various special conditions. Muhlenbruch appeals.
Muhlenbruch argues that the district court erred when it vacated the lesser-included possession count instead of the receipt conviction. We review the district court's decision for an abuse of discretion. See United States v. Fischer, 205 F.3d 967, 970-71 (7th Cir.2000).
When the district court vacated the possession count, it explained that "it would be an inappropriate exercise of discretion to vacate [the receiving count]" given the jury's verdict and the evidence introduced at trial, including Muhlenbruch's videotaped confession. Based on this statement, Muhlenbruch contends the court failed to exercise its discretion and operated under the erroneous assumption that it was required to vacate the possession conviction. The record belies this argument. In addition to the statement highlighted by Muhlenbruch, the district court also expressly acknowledged that it had discretion to decide which count to vacate and reasoned that it had to "exercise that discretion with due regard for what the record shows." Therefore, Muhlenbruch's argument on this point is without merit.
Next, Muhlenbruch claims that, based on the rule of lenity and other "principles of leniency," the district court should have vacated the receipt conviction. We disagree. The rule of lenity "is not applicable unless there is a grievous ambiguity or uncertainty in the language and structure of [a statute]," Chapman v. United States, 500 U.S. 453, 463, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991) (internal quotation omitted), and should not be applied as an "overriding consideration of being lenient to wrongdoers" in cases such as this. Id. (quotation omitted); Fischer, 205 F.3d at 971.
Our review of the resentencing transcript reveals that the district court carefully considered the parties' arguments and vacated the lesser-included possession conviction based on the jury's verdict and
Muhlenbruch argues that his 120-month below-Guidelines sentence is procedurally unsound and substantively unreasonable. In reviewing a sentence, we must first ensure that the district court committed no significant procedural error. United States v. Burnette, 518 F.3d 942, 945 (8th Cir.2008). Then, we review the sentence for substantive reasonableness under a deferential abuse-of-discretion standard. Id. at 946.
During resentencing, Muhlenbruch requested a downward variance based on his postsentencing good behavior in prison. See Pepper v. United States, ___ U.S. ___, 131 S.Ct. 1229, 1249, 179 L.Ed.2d 196 (2011) (holding that "evidence of a defendant's postsentencing rehabilitation at resentencing ... may, in appropriate cases, support a downward variance"). The district court rejected Muhlenbruch's request, explaining, "[T]he fact that someone is behaving themselves while in [prison] it seems to me is not extraordinary conduct. If there is extraordinary conduct, then I would certainly consider it, but it's not part of my decision on the variance today." Based on this statement, Muhlenbruch argues that the district court committed procedural error by imposing an "extraordinary circumstances" standard to his request for a Pepper variance. See United States v. Lozoya, 623 F.3d 624, 626 (8th Cir.2010) ("[T]he Supreme Court has explicitly declared that extraordinary circumstances are no longer needed to justify a sentence outside the Guidelines range." (internal quotations omitted)). Because Muhlenbruch failed to object to the district court's alleged application of an "extraordinary circumstances" standard, we review this issue for plain error. United States v. Bain, 586 F.3d 634, 639-40 (8th Cir.2009). Under plain error review, Muhlenbruch must show "(1) an error; (2) that is plain; and (3) that affects substantial rights." Id. at 640 (quotation omitted). In addition, we will not reverse a plain error unless "(4) it seriously affects the fairness, integrity, or public reputation of judicial proceedings." Id.
Assuming without deciding that the district court committed error that is plain, Muhlenbruch cannot demonstrate that the error affects substantial rights — that is, he cannot show "there is a reasonable probability [he] would have received a lighter sentence but for the error." Id. The district court considered the parties' arguments
Muhlenbruch raises several arguments challenging the substantive reasonableness of his sentence, all of which are meritless. First, he argues that the district court gave too much weight to proper sentencing factors — i.e., the seriousness of the offense and the need for deterrence. But, the record reveals that the district court carefully considered the parties' arguments, considered all the § 3553(a) factors, and even granted a downward variance based on the length of time the case had been pending. The district court simply did not commit a "clear error of judgment" while weighing the § 3553(a) factors. United States v. Black, 670 F.3d 877, 882 (8th Cir.2012) (quotation omitted). Next, Muhlenbruch argues that the district court abused its discretion when it rejected his invitation to vary from the Guidelines range because the child pornography Guideline, U.S.S.G. § 2G2.2, and its enhancements are not based on empirical research.
We hold that Muhlenbruch's 120-month sentence is procedurally sound and substantively reasonable.
Finally, Muhlenbruch argues that the district court erred when it imposed several conditions of supervised release. We review the imposition of conditions of supervised release for an abuse of discretion. United States v. Richart, 662 F.3d 1037, 1056 (8th Cir.2011), cert. denied, ___ U.S. ___, 132 S.Ct. 1942, ___ L.Ed.2d ___ (2012). District courts have "wide discretion" to impose conditions of supervised release so long as they are "reasonably related" to (1) the nature and circumstances of the offense; (2) the defendant's history and characteristics; (3) the deterrence of criminal conduct; (4) the protection of the public from further crimes of the defendant; and (5) the defendant's educational, vocational, medicinal, or other correctional needs. Id. (quotations omitted). In addition, the conditions must
Muhlenbruch challenges a condition of supervised release that requires him to attend sex-offender treatment and to submit to polygraph examinations. He contends that these conditions are not reasonably related to his offense and result in a greater deprivation of liberty than is reasonably necessary. We disagree. In United States v. Wiedower, 634 F.3d 490 (8th Cir.2011), we upheld conditions requiring sex-offender treatment and polygraph testing where the defendant was addicted to child pornography, possessed pictures of prepubescent minors, and exhibited a "lack of candor" regarding his level of involvement with child pornography. Id. at 494. Similarly, in this case Muhlenbruch received between 150 and 300 images of child pornography, including pornographic images of prepubescent minors engaged in sadistic or masochistic conduct. Muhlenbruch also described child pornography as a tempting "forbidden fruit," Muhlenbruch I, 634 F.3d at 994, and there is evidence that Muhlenbruch downloaded child pornography and saved it to a disk a year before the instant offense. While Muhlenbruch admitted downloading child pornography in his interview with police officers, he denied doing so at trial. In light of his videotaped confession, the district court found that Muhlenbruch gave false testimony regarding his involvement with child pornography. Under these circumstances, we find that the district court did not abuse its discretion in ordering sex-offender treatment with polygraph testing.
Next, the district court imposed a condition providing that Muhlenbruch cannot have unsupervised contact with minors and may not have any contact with minors without prior approval. Muhlenbruch contends that these restrictions are unnecessary and unreasonable because he has no history of abusing minors and there is no empirical research suggesting that persons who view child pornography pose a risk to minors. We disagree.
While Muhlenbruch emphasizes that he has no history of abusing minors, "the absence of such a history is not necessarily determinative when deciding whether the district court erred in imposing contact conditions" in child pornography cases. United States v. Kerr, 472 F.3d 517, 523 (8th Cir.2006). For example, in United States v. Mickelson, 433 F.3d 1050 (8th Cir.2006), the defendant pled guilty to receiving child pornography and, even though the defendant had no history of sexually abusing children, we affirmed a condition that barred the defendant from having contact with minors without prior approval. Id. at 1057; see Kerr, 472 F.3d at 523 (discussing Mickelson). In doing so, we reasoned that "requiring prior approval before a convicted sex offender has contact with minors is a reasonable means of ensuring that such contact remains appropriate." Mickelson, 433 F.3d at 1057. Similarly, in United States v. Thompson, 653 F.3d 688 (8th Cir.2011), we affirmed various restrictions on the defendant's contact with minors, even though the defendant
After careful review, we hold that the district court did not abuse its discretion when it imposed the no-contact restrictions at issue. Muhlenbruch received between 150 and 300 images of child pornography, some of which depicted the sort of molestation described in Thompson, and Muhlenbruch referred to child pornography as an enticing "forbidden fruit." In addition, the restrictions are not a total ban on Muhlenbruch's contact with minors. See Thompson, 653 F.3d at 692 (emphasizing that the contact conditions were "not complete prohibitions on [defendant's] interaction with minors"). Indeed, during his five-year term of supervised release, Muhlenbruch may still have contact with minors so long as he (1) obtains prior approval, and (2) is accompanied by a responsible adult. Muhlenbruch is not barred from having incidental contact with minors — e.g., incidental contact while making purchases at a retail establishment. And finally, because Muhlenbruch is childless, these restrictions do not interfere with his parental rights. See United States v. Davis, 452 F.3d 991, 994-95 (8th Cir.2006) (reversing no-contact provision where it interfered with defendant's constitutional interest in raising his daughter); Mickelson, 433 F.3d at 1057 (holding that the district court's failure to "incorporate a blanket exception for ... [extended] family members was not unreasonable"). These restrictions are "a reasonable means of ensuring" that Muhlenbruch's contact with minors "remains appropriate." Mickelson, 433 F.3d at 1057; cf. United States v. Demers, 634 F.3d 982, 987 (8th Cir.2011) (per curiam) (affirming, under plain error review, a lifetime ban on defendant's unsupervised contact with minors).
Muhlenbruch next challenges conditions that bar him from possessing a computer or accessing the internet without prior approval from a probation officer. Muhlenbruch contends that, because his offense was limited to receiving child pornography, such conditions are overly restrictive. We disagree. As an initial matter, the computer and internet restrictions are no doubt reasonably related to the nature and circumstances of Muhlenbruch's offense — he downloaded between 150 and 300 images of child pornography from the internet and stored them on his computer. United States v. Durham, 618 F.3d 921, 944 (8th Cir.2010).
Further, we find that the restrictions do not involve a greater deprivation of liberty
Muhlenbruch also challenges conditions that bar him from viewing and possessing pornography or sexually oriented material, or entering establishments where pornography, erotica, or adult entertainment is the primary product. He generally contends, without citing any case law, that these restrictions are not related to his offense and result in a greater deprivation of liberty than is reasonably necessary under the circumstances. We disagree.
Restrictions on pornographic materials are "not unusual special conditions" in child pornography cases, Wiedower, 634 F.3d at 496 (quotation omitted), and we have repeatedly affirmed restrictions similar to those at issue here. See, e.g., id.; United States v. Ristine, 335 F.3d 692, 694 (8th Cir.2003). The record reveals that Muhlenbruch referred to child pornography as an enticing "forbidden fruit"; indicated to officers that he was addicted to pornography; considered child pornography as an offshoot of regular pornography; downloaded child pornography a year before the instant offense; and downloaded pornographic images of prepubescent minors engaged in sadistic or masochistic conduct. Under these circumstances, the restrictions at issue "would likely facilitate [Muhlenbruch's] rehabilitation and protect the community." Wiedower, 634 F.3d at 497; see id. (affirming pornography ban where defendant had a "deeply rooted affinity" for child pornography); Ristine, 335 F.3d at 694 (affirming pornography ban and restrictions on entering certain establishments where the record demonstrated the defendant's "obsession with or addiction to child pornography"). Accordingly, the district court did not abuse its discretion on this point.
Finally, Muhlenbruch challenges a condition that requires him to obtain a residence approved by a probation officer, notify the probation office of any location where he may receive mail, and get prior approval before obtaining a new mailing address or post office box. Again, without citing any case law, Muhlenbruch generally claims these restrictions are unreasonable and unnecessary. The residence restriction
For the foregoing reasons, we affirm.
BYE, Circuit Judge, concurring in part and dissenting in part.
I concur in the majority's decision to affirm the district court on all issues except the computer and Internet restrictions discussed in Part II.C.3. Because I believe these special conditions of supervised release involve a greater deprivation of liberty than is reasonably necessary, I would vacate the challenged conditions. Therefore, I respectfully dissent on this issue.
In assessing challenges to conditions barring computer and Internet access, we have drawn a line distinguishing cases where a defendant merely possessed or received child pornography from those where a defendant "used his computer to do more than merely possess child pornography[.]" United States v. Boston, 494 F.3d 660, 668 (8th Cir.2007). This case belongs in the former category, because "the record only shows that [Muhlenbruch] used his computer to receive and access child pornography, which under Crume
The majority cites three facts it concludes amount to more than mere possession or receipt of child pornography: (1) Muhlenbruch saved child pornography images on a disk a year before the instant offense; (2) the images involved prepubescent minors engaged in sadistic or masochistic violence; and (3) Muhlenbruch saved the images in a hidden folder on his computer. None of these facts transform Muhlenbruch's conduct into more than mere possession or receipt, however, regardless of where in particular the images were stored or what was depicted therein. See generally id. ("The mere fact that [the defendant] may have [received and possessed child pornography] frequently or for an extended period of time does not change our conclusion."). For instance, there was no evidence to show Muhlenbruch distributed child pornography or used his computer to entice minors to engage in illicit sexual conduct, which we have cited in past cases affirming related conditions. See, e.g., United States v. Munjak, 669 F.3d 906, 908 (8th Cir.2012) (affirming Internet restrictions where a defendant distributed child pornography over a file-sharing network); United States v. Mayo, 642 F.3d 628, 632 (8th Cir.2011) (affirming restrictions on computer access where the defendant used his computer to communicate with a minor and transmit graphic videos of himself); United States v. Ristine, 335 F.3d 692, 696 (8th Cir.2003) ("[The defendant] more than merely possessed images of child pornography — he exchanged the images with other
Nor is this case similar to United States v. Koch, 625 F.3d 470 (8th Cir.2010), which the majority cites in support. In Koch, the defendant was heard discussing intercourse with a boy, and proceeded to clear his web history and remove his hard drives so the probation officer could not find his files — in violation of his conditions of release prior to sentencing. Id. at 481-82.
Finally, I agree with the majority that the instant restrictions are not absolute because they allow computer and Internet access with prior approval from Muhlenbruch's probation officer. Nonetheless, "Crume, with a similar prior-approval provision, forecloses this argument, at least where the defendant only received and possessed child pornography." Wiedower, 634 F.3d at 495 (citing Crume, 422 F.3d at 733). Accordingly, the prior-approval provision does not change the conclusion under our precedent.
Ultimately, I believe this case is more similar to Wiedower and Crume, where there was little beyond mere possession or receipt, than those cases affirming computer and Internet restrictions. Like Wiedower and Crume, I am "confident that the district court can impose a more narrowly-tailored restriction on [Muhlenbruch's] computer use through a prohibition on accessing certain categories of websites and Internet content and can sufficiently ensure his compliance with this condition through some combination of random searches and software that filters objectionable material." Crume, 422 F.3d at 733; see also Wiedower, 634 F.3d at 496 (remanding for the district court to "create a more narrowly tailored ban" on the defendant's computer and Internet activity); United States v. Freeman, 316 F.3d 386, 392 (3d Cir.2003) ("There is no need to cut off [the defendant's] access to email or benign internet usage when a more focused restriction, limited to pornography sites and images, can be enforced by unannounced inspections of material stored on [the defendant's] hard drive or removable disks.").
For the foregoing reasons, I would vacate the special conditions restricting Muhlenbruch's computer and Internet access and remand to the district court. I therefore respectfully dissent from the majority's decision to affirm the district court on this issue.