United States of America v. Derek Clemens
No. 20-1180
United States Court of Appeals For the Eighth Circuit
March 12, 2021
Before SMITH, Chief Judge, LOKEN and MELLOY, Circuit Judges.
Appeal from United States District Court for the Northern District of Iowa - Waterloo. Submitted: December 14, 2020.
LOKEN,
Derek Clemens admitted to investigators that he took photographs of a woman in a gas station bathroom. A warrant search of his cell phone and other electronic devices uncovered more than 100 images and 75 videos of child pornography, including 30 videos and 4 images depicting a victim referred to by the pseudonym “Tara.” Clemens pleaded guilty to receipt of child pornography in violation of
I. Restitution
In 1975, Congress enacted a specific statute providing that a sentencing court “shall order restitution” for any violation of an offense involving Sexual Exploitation and Other Abuse of Children found in Chapter 110 of Title 18.
where it can be shown both that a defendant possessed a victim‘s images and that a victim has outstanding losses caused by the continuing traffic in those images but where it is impossible to trace a particular amount of those losses to the individual defendant by recourse to a more traditional causal inquiry, a court applying
§ 2259 should order restitution in an amount that comports with the defendant‘s relative role in the causal process that underlies the victim‘s general losses. The amount would not be severe in a case . . . [where] the victim‘s general losses from the trade of her images . . . are the product of the acts of thousands of offenders. It would not, however, be a token or nominal amount [but rather] a reasonable and circumscribed award imposed in recognition of the indisputable role of the offender in the causal process underlying the victim‘s losses and suited to the relative size of that causal role.
Id. at 458-59. On December 7, 2018, Congress substantially amended
(b) Scope and nature of order. --
(2) Restitution for trafficking in child pornography. If the defendant was convicted of trafficking in child pornography, the court shall order restitution under this section in an amount to be determined by the court as follows:
(A) Determining the full amount of a victim‘s losses. If the defendant was convicted of trafficking in child pornography, the court shall determine the full amount of the victim‘s losses that were incurred or are reasonably projected to be incurred by the victim as a result of the trafficking in child pornography depicting the victim.
(B) Determining a restitution amount. After completing the determination required under subparagraph (A), the court shall order restitution in an amount that reflects the defendant‘s relative role in the causal process that underlies the victim‘s losses, but which is no less than $3,000.
(C) Termination of payment. A victim‘s total aggregate recovery pursuant to this section shall not exceed the full amount of the victim‘s demonstrated losses. After the victim has received restitution in the full amount of the victim‘s losses as measured by the greatest amount of such losses found in any case involving that victim that has resulted in a final restitution order under this section, the liability of each defendant who is or has been ordered to pay restitution for such losses to that victim shall be terminated. . . .
(c) Definitions.-- (2) Full amount of the victim‘s losses. For purposes of this subsection, the term “full amount of the victim‘s losses” includes any costs incurred, or that are reasonably projected to be incurred in the future, by the victim, as a proximate result of the offenses involving the victim, and in the case of trafficking in child pornography offenses, as a proximate result of all trafficking in child pornography offenses involving the same victim . . . .
Amended
The district court concluded that amended
We reject both these arguments because they are contrary to the plain meaning of
II. Supervised Release Special Condition Three
Clemens argues the district court erred in imposing the requirement
Clemens‘s Presentence Investigation Report recommended special condition three “based upon the nature and circumstances of the offense and the history and characteristics of the defendant.” Clemens timely objected to special condition three, arguing in his sentencing brief that “it prohibits Mr. Clemens from accessing lawful materials which are protected by the First Amendment,” and “there is absolutely no evidence that preventing him from looking at legal, adult pornography, or ‘sexually stimulating’ material will protect children or serve any useful purpose.” At sentencing, after counsel stated they had nothing to add to their sentencing briefs, the district court overruled Clemens‘s objection:
I understand that this language is broad enough to include adult sexual materials, as well as child pornography, but based on my review of the case law and this defendant‘s history and characteristics, of his involvement in possessing and downloading child pornography and also taking photographs of postpubescent and adult females in a clandestine manner, I find this to be an appropriate limitation on his supervised release. Quite frankly, for his own benefit in many ways . . . .
On appeal, Clemens argues that the above-quoted terms in special condition three are unconstitutionally vague and overbroad. He does not renew his objection to including adult pornography in the restriction. And rightly so. We have explicitly upheld conditions imposing adult pornography restrictions on child pornography offenders “that were obviously relevant to the child pornography offense at issue or to the defendant‘s history and characteristics.” United States v. Deatherage, 682 F.3d 755, 764 (8th Cir. 2012). For example, in United States v. Mefford, we upheld a restriction on “any pornography” in part because the sex offender‘s criminal history, rather like in this case, included “convictions for outraging public decency by hiding in a women‘s restroom at the state fair and taking pictures from under a stall[.]” 711 F.3d 923, 925 (8th Cir.), cert. denied 571 U.S. 900 (2013).
We have reviewed and upheld the three terms at issue -- “sexually stimulating,” “sexually oriented,” and “pornographic” -- in numerous cases where the conditions at issue were relevant to the offense of conviction or to the defendant‘s history and characteristics. See, e.g. Bordman, 895 F.3d at 1060 (“pornography“); United States v. Fonder, 719 F.3d 960, 961 (8th Cir. 2013) (“sexually stimulating or sexually oriented“); Mefford, 711 F.3d at 926 (“any pornography“); United States v. Hobbs, 710 F.3d 850, 855 (8th Cir. 2013) (“sexually stimulating or sexually oriented materials“); Deatherage, 682 F.3d at 764 (“pornographic images of sexually oriented materials“); United States v. Demers, 634 F.3d 982, 986 (8th Cir. 2011) (pornographic materials); United States v. Stults, 575 F.3d 834, 845 (8th Cir. 2009) (“any pornographic sexually oriented or sexually stimulating
Clemens attempts to distinguish this line of cases by noting that the similar special conditions “survived vagueness challenges because the condition included a ‘modifier,‘” such as sexually oriented material “deemed inappropriate by the U.S. Probation Officer in consultation with the treatment provider.” Id. at 855. However, Clemens did not make this objection to the district court so it is not properly preserved. The conditions as quoted in a number of our prior opinions contained no such modifier -- see Mefford, Deatherage, Demers -- and we have never suggested that such a modifier is necessary to avoid unconstitutional overbreadth or vagueness.
Beyond that, Clemens concedes that his First Amendment arguments are foreclosed by this line of cases. He urges us to overrule them, but as a panel we may not do so.
The judgment of the district court is affirmed.