Filed: Jan. 17, 2013
Latest Update: Feb. 12, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 12-1693 _ UNITED STATES OF AMERICA v. ADAM J. WINDON, Appellant _ On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 1-11-cr-00070-001) District Judge: Honorable Christopher C. Conner _ Submitted Pursuant to Third Circuit LAR 34.1(a) January 8, 2013 Before: RENDELL, FISHER and JORDAN, Circuit Judges. (Filed: January 17, 2013) _ OPINION OF THE COURT _ FISHER, Circuit Judge. A
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 12-1693 _ UNITED STATES OF AMERICA v. ADAM J. WINDON, Appellant _ On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 1-11-cr-00070-001) District Judge: Honorable Christopher C. Conner _ Submitted Pursuant to Third Circuit LAR 34.1(a) January 8, 2013 Before: RENDELL, FISHER and JORDAN, Circuit Judges. (Filed: January 17, 2013) _ OPINION OF THE COURT _ FISHER, Circuit Judge. Ad..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 12-1693
____________
UNITED STATES OF AMERICA
v.
ADAM J. WINDON,
Appellant
____________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 1-11-cr-00070-001)
District Judge: Honorable Christopher C. Conner
____________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 8, 2013
Before: RENDELL, FISHER and JORDAN, Circuit Judges.
(Filed: January 17, 2013)
____________
OPINION OF THE COURT
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FISHER, Circuit Judge.
Adam Windon appeals the District Court’s judgment that he serve his federal
sentence consecutively to his state sentence. He also appeals the conditions of his
supervised release. For the reasons stated below, we will affirm.
I.
We write principally for the parties, who are familiar with the factual context and
legal history of this case. Therefore, we will set forth only those facts necessary to our
analysis.
On September 26, 2008, Windon was arrested and charged with aggravated
indecent assault, corruption of minors, and unlawful conduct with minors. On May 6,
2010, a state court judge sentenced Windon to a term of five to fifteen years’
imprisonment.
Jennifer Sager, Windon’s wife, later contacted police in order to turn over some of
Windon’s electronic equipment. Police obtained search warrants for the equipment and
eventually discovered 1,134 images and 165 movies that met the federal standards for
child pornography. None of the children shown in the images or movies were among the
children whom Windon abused in committing the state offenses. On September 1, 2011,
Windon pled guilty to possession of child pornography, in violation of 18 U.S.C.
§ 2252A(a)(5)(B).
The presentence investigation report (“PSR”) indicated that Windon’s base
offense level was governed by U.S.S.G. § 2G2.2(a)(1). The PSR included a five point
enhancement for a pattern of sexual abuse. The PSR also noted that under U.S.S.G.
§ 5G1.3(c), the District Court had discretion to run Windon’s federal sentence
concurrently, partially concurrently, or consecutively to his state prison sentence.
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Windon objected to this determination in the PSR and argued that U.S.S.G. § 5G1.3(b),
which provides for a concurrent sentence, should be applied.
The District Court disagreed and imposed a 120-month sentence to be served
consecutively to the five-to-fifteen-year state sentence that Windon was already serving.
The District Court also referenced the nature of Windon’s criminal history and imposed a
twelve-year term of supervised release, which requires Windon to submit himself to be
searched at any time by any law enforcement officer who has reasonable suspicion that
Windon is violating a condition of his supervised release or engaging in unlawful
conduct.
II.
The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate
jurisdiction under 28 U.S.C. § 1291. Our review of the District Court’s interpretation of
the Sentencing Guidelines is plenary. United States v. Kulick, 629 F.3d 165, 168 (3d Cir.
2010). We review the District Court’s factual findings as to whether the offenses were
part of a continuing course of conduct for clear error.
Id. We review the District Court’s
decision to impose a special condition of supervised release for abuse of discretion.
United States v. Maurer,
639 F.3d 72, 77 (3d Cir. 2011).
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III.
A.
In a sentencing situation such as this one where a previous offense forms the basis
for an increase in the offense level for the instant offense, a sentence shall be imposed to
run concurrently if the previous offense involved “relevant conduct to the instant
offense.” U.S.S.G. § 5G1.3(b). “In any other case involving an undischarged term of
imprisonment, the sentence for the instant offense may be imposed to run concurrently,
partially concurrently, or consecutively to the prior undischarged term of imprisonment.”
U.S.S.G. § 5G1.3(c).
With respect to offenses, such as Windon’s, for which U.S.S.G. § 3D1.2(d)
requires grouping of multiple counts, “relevant conduct” includes “all acts or omissions
. . . that were part of the same course of conduct or common scheme or plan as the
offense of conviction.” U.S.S.G. § 1B1.3(a)(2); Jansen v. United States, 369 F.3d 237,
248 (3d Cir. 2004) (applying the U.S.S.G. § 1B1.3(a)(2) standard “when the offense of
conviction is a groupable offense, regardless of the nature of the alleged relevant
conduct.”).
We consider three factors in determining whether offenses are part of the same
course of conduct: “(1) the temporal proximity between the two offenses; (2) the
similarity of the offenses; and (3) the regularity of the offenses.” Kulick, 629 F.3d at 171
(citing U.S.S.G. § 1B1.3, cmt. n. 9(B)). Although there is no bright-line rule defining
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what constitutes the same course of conduct, the relative strengths of the three factors
must be individually assessed. Id.
Although Windon possessed child pornography during the time period in which he
was found to have sexually assaulted children, the two offenses are not sufficiently
similar to be part of the same course of conduct. Windon argues that both offenses
involve vulnerable children and offenders who operate “in the darkest corners of
society’s secretive and salacious underbelly.” Appellant’s Br. at 24. Possession of child
pornography, however, involves separate and distinct conduct from sexual assault of
children who are not associated with the child pornography. Furthermore, given the
separate and distinct conduct of these two offenses, we cannot conclude that the offenses
occurred with the same regularity.
Because the two offenses were not part of the same course of conduct, Windon’s
conviction for aggravated assault is not relevant conduct to his conviction for possession
of child pornography, and thus, under U.S.S.G. § 5G1.3(c), it was within the District
Court’s discretion to impose Windon’s federal sentence to be served consecutively to his
state sentence.
B.
Windon also challenges as overbroad the District Court’s supervised release
condition requiring him to submit to be searched at any time by any law enforcement
officer who has reasonable suspicion that Windon is violating a condition of his release
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or engaging in unlawful conduct. Sentencing courts have broad discretion to impose
special conditions of supervised release if such conditions are “reasonably related” to the
factors set forth in 18 U.S.C. § 3553(a). Maurer, 639 F.3d at 82. Moreover, conditions
of supervised release may impose “no greater deprivation of liberty than is reasonably
necessary to deter criminal conduct, protect the public, and rehabilitate the defendant.”
Id. at 83 (internal quotation mark omitted).
Here, after finding that Windon presented a danger to the public, the District Court
stated that the condition of supervised release was based on the nature of Windon’s
criminal history. The District Court also limited searches to situations in which officers
have reasonable suspicion to believe Windon is violating a condition of his release or
engaging in criminal activity, and thus, the District Court ensured that the deprivation of
liberty was not greater than necessary. Therefore, the District Court did not abuse its
discretion in imposing the condition of supervised release.
IV.
For the foregoing reasons, we will affirm the District Court’s judgment that
Windon serve his federal sentence consecutively to his state sentence. We will also
affirm the District Court’s condition of supervised release.
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