*1 958 suggests gave choosing This that the court judge
followed.”
the latter was his
improper presumption
from an
proceeded
guidelines.
statement about the
quick
within-guidelines
that a
sentence was rea-
any
imposition
sentence without
further
States,
v.
sonable. See Nelson United
555 explanation suggests
judge may
that the
350, 352,
890,
129
172 L.Ed.2d
U.S.
S.Ct.
impermissibly placed
a
on
“thumb
the
curiam)
(2009) (per
(finding
719
it “beside
guideline
scale favoring a
sentence.”
sentencing
recog-
that
point”
judge
Sachsenmaier,
States
United
491 F.3d
guidelines
mandatory);
are not
nized
(7th Cir.2007).
680, 685
In similar circum-
Rita,
351,
see
U.S. at
127
also
551
S.Ct.
stances we have remanded for resentenc-
(“[T]he sentencing
2456
court does not en-
See,
Johnson,
ing.3
e.g.,
635
F.3d
989-
legal
joy
presumption
the benefit of a
that
90; Panice,
grettably”). America, UNITED STATES of
Perhaps the judge оnly par- intended Appellee, aphrase the familiar principle that guidelines are initial “the benchmark” for Gall, appropriate an sentence. See Timothy OLSON, Appellant. James 49, U.S. 586. But where a “judge’s subject variety remarks are to a No. 11-1609. interpretations,” arewe left “to wonder Court Appeals, guidelines] whether he treated pre- [the Eighth Circuit. sumptively reasonable.” United States v. Panice, 426, 598 F.3d 441-42 Cir. 18, Nov. Submitted: 2011. 2010). The surrounding discussion adds to 13, Filed: Jan. ambiguity. After finding essentially no difference between 64-month and a sentence,
68-month the only reason calculated, correctly 2. A within-guidelines "sentencing package.” tire See United States appellate Smith, sentence is entitled to rebuttable presumption of reasonableness. United States ("[I]n sentence, judge a district Martinez, (7th Cir.2011); line, quite properly to thе looks bottom see also Rita v. United 551 U.S. (or years guide- number total under the (2007). 127 S.Ct. lines, months) which effectuates a plan, or what we have referred as a ‘sen- Pennington asks to us vacate Counts 1 ”). tencing package.’ We decline to restrict party and 2 because neither advocated for the court’s review on remand to Counts anything other mandatory-minimum than the 2 alone. sentence on A judge's Count 3. sen- tеncing ordinarily concerns the en- *2 Defender, Fulton, Public
Neil Federal Pierre, SD, argued, Duncan McGre- Scott SD, AFPD, Rapid City, Christopher gor, ND, Lancaster, AFPD, Fargo, on the J. brief, Defendant-Appellant. Puhl, AUSA, ar- Jennifer Klemetsrud ND, Plaintiff-Appellee. gued, Fargo, MURPHY, WOLLMAN, Before BENTON, Judges. Circuit MURPHY, Judge. Circuit interest was so intense that he could get towait home from work and mastur- pled Timothy guilty pos- James images bate to his collected even when involving session of materials the sexual stepdaughter present. Olson stated *3 minors, of exploitation materials discover- attempts that his to control his addiction during investigation ed state his into unsuccessful, were and he attributed the of stepdaughter. sexual abuse his of stepdaughter part abuse his in his to district court sentenced Olson his fed- consumption of pornography. child He to eral offense 108 months to conseсutive told the district court that he used the his state sentence and to a life of term appetite” material to “whet [his] and to supervised release with special several stepdaughter teach his that sexual conduct conditions. Olson appeals, arguing that was normal. Olson also judge told the district Tapia court violated v. United — that he had been in participating a self U.S.-, 131 S.Ct. help group try in (2011) statе to to over- L.Ed.2d 357 in imposing consec- come his any addiction and was seeking utive sentence and erred in opportunity treatment available. special prohibiting condition him from pos- sessing depicts or material which describes acknowledged district court the rec- sexually explicit conduct. We vacate and ommended total offense in pre- level resentencing. remand for investigation report, but it stated reported
Olson himself to North Dakota it that would not apply report’s recom- sexually abusing authorities for step- mended five level enhancement for a pat- daughter. begun The abuse had activity when she of involving tern the sexual abuse years was five old and continued until exploitation she of a minor. Because Olson was twelve or thirteen. In the of course an serving undisсharged prison was term interviewing stepdaughter, police Olson’s for his state offense which was also the learned he possessed child pornogra- basis five en- recommended level phy. Olson consented a search of his hancement, his federal sentence would computer by agents. federal On the com- presumptively have been concurrent puter they 2,000 discovered over images state sentence if the district court had nine depicting videos engaged children used the enhancement increase Olson’s sexually explicit conduct, in including im- 5G1.3(b). § offense level. See U.S.S.G. ages of prepubescent girls, babies, and Application pattern of the recommended sadistic and masochistic conduct. activity enhancement would an have led to a guideline offense level 33 and range
While the federal investigation contin- 151-188 months. ued, Olson in pled guilty state court to continuous sexual abuse of a child and was explained The district court “in- that it by sentenced judge years state to 60 impose portion tend[ed] to at least some imprisonment, half of which suspend- the sentence consecutive to the state sen- pled ed. Olson then guilty in federal court tence.” Since the district cоurt declined to 2252(a)(4)(B) § under 18 posses- U.S.C. enhancement, impose the Olson’s offense sion of involving exploitation materials level was with a guideline range of 87- of minors. 108 months. Without the enhancement
At his sentencing, guideline presumption federal Olson there was no de- concurrent, scribed his pornography interest child sentence would be 5G1.3(c), as an “addiction” and said he had “become U.S.S.G. and under 18 U.S.C. powerless it.” “[m]ultiple Olson testified that his imprisonment terms of any materials ... “possessing] depicting times run consecu- different ‘sexually describing explicit conduct’ [or] orders that tively unless 2256(2) §§ at 18 concurrently.” defined U.S.C. are to run See also terms 2256(8).” Lomeli, argues that the district (8th Cir.2010). court violated the Court’s recent by imposing a consecutive consecutive fed- imposing Olson’s Before purpose sentence for the of treatment and sentence, the court addressed eral objects spe- He also to the rehabilitation. U.S.C. all of the factors prohibits cial condition of release that him 3553(a). on the “ex- It commented first sexually possessing explicit from *4 materials. ceptionally egregious” nature of Olson’s offense, both in terms of the number and Tapia The Court decided images he col- pornographic оf the nature sentencing. Tapia, after Olson’s In it held lected, describing profoundly him “a “may sentencing impose that a court not court then disturbed individual.” The dis- lengthen prison or a enable an the need for the sentence to reflect cussed complete program offender to a treatment offense, of the promote the “seriousness promote or otherwise to rehabilitation.” — law, provide pun- U.S.-, respect just for the and v. United (2011). ishment,” adequate 2382, 2393, and to “afford deter- S.Ct. generally.” to criminal conduct It decision on rence The Court based its 18 U.S.C. 3582(a), emphasized protect public the the which instructs sentencing need “recogniz[e] by imprisonment from crimes the defendant and courts that is further not an of people appropriate promoting that “hands-on offenders are meаns stated correction and rehabilitation.” Id. at historically high been at risk to that have Although sentencing 2388-91. a court can The court also ex- recidivate.” district opportunities for “discuss[ ] the rehabilita- plained that: specif- the prison tion within or benefits of appro- the defendant with the Providing training programs,” may ic it treatment correc- priate and effective medical and length the of the sentence” to ] “select[ in most tional treatment the effective a completion pro- ensure of rehabilitation I possible, manner all of that think is gram. examining Id. at 2392. After the that something needs to be taken into Tapia’s sen- district court’s statements Bureau of consideration. federal reversed, tencing, concluding the Court operates system a Prisons ... treatment that [dis- that “the record indicates thе frankly the that Court believes is better may have ... calculated court trict] anything that the of North than State length Tapia’s sentence ensure that the Dakota offers and defendant she certain rehabilitative services.” receive really a can’t be trusted in person that at 2392-93. Tapia, meaningful community without some treatment. Similarly, in this case the district may imposed court Olson’s consecu The district court sentence of consecutively run sentence in order to enable treatment 108 months to to Olson’s tive in a in apparently promote sentence and to ensure rehabilitation federal state did it it “meaningful treat- stitution. Not state that Olson could receive in treatment prison system. in It wanted Olson receive ment” the federal any in addition to services supervised program also for a lifetimе of federal provided prison, specifi he in state it might of the of that receive release. As one conditions release, cally rejected presentence report from rec- prohibited court for a five level tive ommendation enhancement sentence as Olson concedes. dis- 2G2.2(b)(5). trict under The factual basis for court’s references to rehabilitation activity pаttern enhancement and treatment calculating when total undisputed report possible purpose in offense level with the presentence avoiding again sentencing, presumptively concurrent sen- conceded but the en- tence require clarity remand for about hancement would have had the effect of Tapia, court’s intent. See 131 S.Ct. at making presumptively the federal sentence concurrent to the state sentence. U.S.S.G. 5G1.3(b). significance The dissent finds in the dis tance transcript between
Selecting “length sen- [Olson’s] apply court’s not to a five level tence to ensure that [he] receive certain sentencing enhancement and its discussion rehabilitative services” federal of Olson’s need for rehabilitation. The by would directly proscribed Tapia. be Gall, simply followеd howev recently Id. at 2393. We affirmed in a er, by establishing first the offense level different case where the district court *5 guideline and range hearing before merely responded to the defendant’s dis- requests sentencing of counsel and the de cussion his rehabilitative and needs did statement, own important fendant’s all not appear lengthen to the sentence to steps a before sentence. Gall v. accommodate program. United 38, 49-50, United 552 U.S. 128 Blackmon, 981, (8th States v. 662 F.3d 987 586, (2007); S.Ct. see also Cir.2011) (concluding that there was no Mireles, United 1009, 617 F.3d error). plain Here, the court went (8th Cir.2010). 1012 beyond discussing federal rehabilitative programs may and have imposed the con- sentencing Before Olson the district secutive sentence specifically to address 3553(a) carefully court discussed fac- need for Olson’s treatment but the record tors, but it did not have the benefit of the is not clear. We therefore vacate Olson’s Supreme clarifying Court’s interpretation sentence and 3582(a). remand resentencing. §of In Tapia the Court read Kubeczko, See United States v. 660 F.3d provisions these two sentencing together (7th 260, Cir.2011); 261 United States in way. a They fresh had both been enact- cf. Garciar-Hemandez, 657, 530 F.3d 665- years ed some 25 sepa- earlier and werе (8th Cir.2008) 66 (remanding where dis- rate subparts lengthy in a statute. The trict factor); court relied on erroneous 3582(a)’s Court now has made clear that Roberson, 990, United States v. 517 F.3d statement imprisonment an inap- (8th Cir.2008) (since 995 record was un- propriate means promote to rehabilitation clear whether there was a Kimbrough er- imposition bars imprison- a sentence of ror, remanding for district court exer- ment in rehabilitation, order to achieve cise its discretion under correct legal fourth purpose of sentencing listed in framework). 3553(a)(2)(D). Tapia, 2387, 131 at recognize
We that the district court also crime, discussed the egregiousness of the Many potential Tapia will errors not the use of the pornographic in require plain material remand under error review. Blackmon, abuse stepdaughter, of Olson’s and the See 662 at F.3d 987-88. need for incapacitation. Supreme deterrence and not Court did indicate that its All of those permissible are factors for should have prospective ap- consideration support and could plication, a consecu- however. In order give effect
963 sexually explicit or material cases raphy our role as and not abdicate reject court, closely involving examine pornography we must child and reviewing Tapia is- sentencing transcript challenge when here. United States such See (8th v. Ta- raised. See United States 695 Cir. Thompson, sues are 2011). pia, repeatedly 665 F.Sd referred his Olson resentencing remanding for (vacating and and pornography “addiction” to child dis- Court). The on remand from facilitating its role in the abuse of cussed opinion is incon- asserts that this dissent stepdaughter at the hear- Blackmon, with our decisions sistent special condition be tied ing. While must Werlein, 664 F.3d States v. findings, to individualized Cir.2011). (8th The differ- 1146-47 Wiedower, Cir. that there the rec- in those cases is ence 2011), amply sup- statements Olson’s own had that the district courts ords showed imposition of the condition here. port based on the defen- sentences Thompson, See Werlein, 664 rehabilitative needs. dant’s reasons, foregoing For the we vacate Blackmon, 1146-47; F.3d at for resen- Olson’s sentence remand contrast, in a case like this where 987. In tencing Tapia. with consistent clear from the record whether it is not impermissibly based not the district BENTON, dissenting. Judge, Circuit sentence on Olson’s “rehabilita- its needs,” we Tapia, S.Ct. at tive object failed to *6 or not there cannot determine whether The Court left to imposed. when plain error. application appeals the courts of the of Tapia plain-error unpreserved review resentencing A is therefore remand for — States, Tapia issues. v. United U.S. im- the court can appropriate so district 2382, 2393,180 -, 131 S.Ct. L.Ed.2d 357 with the benefit of pose a lawful sentence 52(b) (2011), citing Fed.R.Crim.P. and the district guidance. Because Tapia’s Olano, 725, 731, v. U.S. States 507 may resentencing at reim- court choose (1993) S.Ct. 113 special condition of su- pose particular the the (articulating plain-error standards that Olson now chal- pervised release review). lenges, argument that we also consider prohibition possessing material that the on circuit, circuits, applies This like most sexually explicit or con- depicts describes Tapia unpreserved review to plain-error A unwarranted and overbroad. duct is Blackmon, 662 States v. issues. United special may court order a condition Cir.2011) (8th (finding no 986-87 F.3d reasonably release which supervised of is despite the error district court’s dis- plain to the nature and circumstances related rehabilitation, the court did cussion of offense, characteristics of the de-
the the express lengthen an the sen- not intent deterrence, fendant, the protection pub- purposes), citing tence for rehabilitation lic, treatment of the defendant’s cor- and Pirani, 406 F.3d 549 United States 3583(d); rectional needs. 18 U.S.C. Cir.2005) (en (8th banc); United States Bender, 748, 751 566 F.3d (8th Werlein, 1143,1147 Cir.2011) 664 Cir.2009). (8th curiam) find (citing Blackmon to no (per error, as court did not rejected the consistently plain
We intent to the sentence challenges express lengthen an special condi overbreadth generally purposes). See pornog- for rehabilitative possession tions the precluding 964 opinion requirements
the Table at end
this
of plain-error
review
Blackmon,
adopted
cases from other circuits.
in Blackmon.
an
987-88. Even if
oc-
“error”
panel
by
This
bound
is
Blackmon
“plain,”
curred that was
is
remand
and Werlein
Mader v. Unit-
decisions. See
automatic. Olson must demonstrate “an
ed
654 F.3d
rights.”
error
affected his substantial
(en banc) (“one panеl
by
is bound
Id.,
Bain,
citing United
panel.”).
prior
decision of a
Cir.2009)
curiam).
(per
review,
inqui-
plain-error
Under
the first
[Wjhere the effect of the
on
error
ry
whether there is indeed an
is
error.
result in the district court is uncertain
Blackmon,
Werlein,
987-88;
F.3d at
or indeterminate —where we would have
at 1146-47. Just before
speculate
appellant has not met
sentence,
—the
the district
here ad-
showing
his burden of
a reasonable
dresses,
name,
by
order
each sen-
probability
the result would have
3553(a).
tencing factor in 18 U.S.C.
been different but for the error.
once,
district court mentions rehabilitation
quoted
in the
paragraph
panel’s
Id.,
Pirani,
quoting
1061-62, WL (on 2011) 8, remand from
Dec.
Court) Grant, 276, 279- v.
United (9th 6016182, Cir. Dec. 80, at *3 2011 WL GONZALEZ, Petitioner- Jesse 2011) 5, Appellant, 1103, Cordery, 656 F.3d United States WONG, of California Robert Warden Cardenas-Mireles, 446 United States Quentin, Prison at State San 991, 11-2138, 2011 993-94 No. Fed-Appx. Respondent-Appellee. 21, (10th *2 Cir. Dec. WL No. 08-99025. 2011) Appeals,
United States Court Acknowledging plain-error review as Ninth Circuit.
proper standard Jan. Argued and Submitted 1, 2 Molignaro, Filed Dec. (1st Cir.2011) plain-error (assuming 1n. novo applying but de apply,
review would sentencing judge made
review because objected at defendant
clear he understood
sentencing) Orrellana-Rosales, 446 States v. 11-11395, 2011 241-42 No.
Fed.Appx. 5420830, at *1 n. 1 Cir. Nov.
WL
2011) “ordinarily (noting that the court *8 stringent plain error apply
would more review,” applying but abuse
standard of the defendant’s claim
discretion because the court’s comment
error was based on an- after the sentence was
a sidebar
nounced)
Others Walker, Cir.2011) (reviewing under a deferen- standard)
tial abuse-of-discretion 660,F.3d 260, Kubeczko, no standard (mentioning