United States v. Eric D. Wagner
2017 U.S. App. LEXIS 18467
| 7th Cir. | 2017Background
- Eric D. Wagner (defendant) was convicted under 18 U.S.C. § 2422(b) for knowingly attempting to persuade or induce a minor ("Jen") to engage in illegal sexual activity following undercover internet communications and an arrest at a planned meeting.
- Separately, Wagner had earlier online communications with someone he believed to be a 14-year-old ("Holly"); that conduct was uncharged but described in the PSR.
- The PSR applied U.S.S.G. § 2G1.3(d)(1) to treat each minor as a separate count for grouping, adding two offense levels and producing a guidelines range of 121–151 months; the district court adopted the PSR and sentenced Wagner to 132 months plus 12 years supervised release.
- The supervised release term included special conditions: (1) mandatory participation in Probation’s Computer and Internet Monitoring Program (CIMP) with filters and electronic access for probation, (3) prohibition on child pornography and a clause allowing a treatment provider to restrict adult pornography, and (6) prohibition on using the internet to view child pornography or sexually explicit conduct unless the treatment provider permits otherwise.
- On appeal (plain-error review because Wagner did not object below), Wagner challenged inclusion of uncharged conduct in the guidelines calculation and three supervised-release conditions; he also asked the court to confirm he had not forfeited a future § 2255 motion.
Issues
| Issue | Wagner's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether uncharged conduct (Holly) properly counted under § 2G1.3(d)(1) for grouping and guideline increase | Inclusion was improper under general rule disallowing uncharged offenses in grouping (Newsom) | § 2G1.3(d)(1) expressly treats relevant conduct involving multiple minors as separate counts; Holly’s conduct was relevant, criminal, and contemporaneous | Affirmed: district court correctly included uncharged conduct under § 2G1.3(d)(1) |
| Whether CIMP condition (computer monitoring/filters) lacked adequate justification | Insufficient reasoning and risk of unfettered probation access to computers | District court explained defendant used a computer to facilitate the offense and hid activities; monitoring reasonably related to § 3553(a) goals | Affirmed: justification sufficient; presumption of reasonable implementation by probation |
| Whether condition delegating authority to treatment provider to restrict adult pornography unlawfully delegated Article III sentencing authority | The clause effectively allows non-judge to decide if adult pornography will be banned; no evidence banning adult porn is necessary | Government reads clause as conditional (treatment provider first determines need) but concedes outright ban would be inappropriate | Vacated: delegation to treatment provider impermissible; clause must be stricken and condition reassessed by the court |
| Whether internet-access condition (ban on viewing sexually explicit material online unless treatment provider directs otherwise) was impermissibly vague or an unlawful delegation | Condition could be read to ban lawful adult pornography online and delegates authority to treatment provider | Court found internet-focused restriction can be appropriate given internet-facilitated offense, but the clause was poorly worded and could be read to permit child pornography or impermissibly delegate | Vacated and remanded for clarification/reassessment: language struck to remove delegation and ambiguity |
Key Cases Cited
- United States v. Newsom, 402 F.3d 780 (7th Cir.) (general rule disallowing uncharged offenses for grouping)
- United States v. Hill, 645 F.3d 900 (7th Cir.) (interpretation of "offense" to include relevant conduct under § 1B1.3)
- United States v. Rollins, 836 F.3d 737 (7th Cir.) (commentary to guidelines given controlling weight)
- United States v. Nance, 611 F.3d 409 (7th Cir.) (relevant-conduct relation requirement)
- United States v. Kappes, 782 F.3d 828 (7th Cir.) (requirements for district court explanation of supervised-release conditions)
- United States v. Schrode, 839 F.3d 545 (7th Cir.) (Article III non-delegation limits on probation/treatment-provider discretion)
- United States v. Cary, 775 F.3d 919 (7th Cir.) (no unmitigated First Amendment right to view adult pornography on internet while on supervision)