United States v. Sullivan, Roger

in- objective by excluding complishing its — hundred or companies one

vestment advisers and investment

fewer investors fifteen But the than clients.

having fewer only

Hedge Rule exacerbates what- Fund might perceive in Con-

ever one problems

gress’s determining who method rule creates

regulate. The Commission’s funds hun- in which with one situation are exempt

dred investors or fewer demanding Compa- Investment

the more Act, in-

ny with fifteen or more but those the Ad- trigger registration under

vestors arbitrary rule. Act. This is

visers is granted, for review petition Rule is re- Hedge Fund vacated and

manded.

So ordered. America, Appellee

UNITED STATES SULLIVAN, Appellant.

Roger James

No. 05-3161. of Appeals, States Court

District Columbia Circuit. 5,May

Argued 2006.

Decided June

Internet, in violation of 18 U.S.C. 2252A(a)(5)(B) (2000). § Appellant moved to have by his indictment dismissed Court, arguing District that Congress power proscribe lacked the purely intra- state of pornography, regard- less of whether the pornography had tra- versed interstate over the Internet. The District motion, Court denied Sullivan’s holding acted within its au- I, thority § under Article 8 of the Consti- tution when criminalized certain activi- relating ties to material constituting or containing child pornography. appeal, On Sullivan renews his constitu- tional agree claim. We with the District argument Court that his fails. The Su- preme Court’s decision in Gonzales v. U.S. (2005), L.Ed.2d 1 which was decided after the District ruling, directly Court’s con- disposition trols the of this case. We also argued ap- Laina C. Wilk the cause for reject appellant’s objections to the condi- pellant. her on the Thom- With briefs was tions of his supervised imposed by release Corcoran, as G. Jr. Herbert A. Dubin en- the District Court. tered an appearance. Nyland, Suzanne C. Assistant U.S. At- Background I. torney, argued appellee. the cause for 2252A(a)(5)(B) prohibits: Section With her on the brief were Kenneth L. book, knowingly possessing] any maga- Wainstein, Attorney, Roy W. zine,' film, periodical, videotape, comput- McLeese, III, Tourish, Jr., Thomas J. disk, er or other material that con- Kittay, Barbara E. Assistant U.S. Attor- an image pornography tains of child neys. mailed, shipped has been or or trans- BROWN, Before: SENTELLE and ported foreign in interstate or commerce EDWARDS, Judges, Circuit Senior means, by any including by computer, or Judge. Circuit produced using that was materials mailed, shipped have been or or trans- Opinion for by the Court filed Senior ported in foreign interstate or commerce Judge Circuit EDWARDS. means, by any by including computer. Concurring opinion filed Circuit 2252A(a)(5)(B) (2000). § 18 U.S.C. On Judge SENTELLE. 19, 2004, February appellant was indicted EDWARDS, Judge. Senior Circuit on one count of or possession often more items of child pornography had been Appellant Roger pled James Sullivan transported foreign com- guilty to knowingly possess- one count of ing by computer, merce pornography images that were violation 2252A(a)(5)(B). transported in interstate commerce via the In November Sul- admitted that from the Internet. He agreement, phy which plea executed livan supporting facts to download the illegal knew it was proffer included a he 2252A(a)(5)(B)charge; on the In- guilty plea from the images pornography of child plea a conditional entered he then that he had ex- acknowledged He ternet. the issue appeal for guilty, preserving so no one computer, access to his clusive 2252A(a)(5)(B), applied § whether por- the downloading else was involved authority under him, Congress’ exceeded computer. He also admit- nography to Clause. the Commerce of his copied had the contents ted that he plea the supporting of facts proffer The to a substitute hard drive hard drive In straightforward. agreement in order acquired zip the disks that he had News Pro- working for FOX was appellant data, im- including the personal to move FOX is a Washington, D.C. ductions in from the hard ages pornography, of child network that and cable news broadcast workplace computer. drive of his infor- news and and distributes produces 8, 2004, Sullivan moved On December throughout United programs mation ground the indictment on the dismiss FBI received States. March 2252A(a)(5)(B), applied as it 18 U.S.C. FOX, employee call from telephone him, authority Congress’ under exceeded 75,000 files approximately reporting On December the Commerce Clause. found on the had been pornography convened a motions the District Court workplace. The computer appellant’s argu hearing parties and both offered “zip FBI the hard drive and retrieved Eleventh Circuit’s addressing ments computer and disks” from Maxwell, images pornog- of child found thousands decision United States (“Maxwell var- (11th Cir.2004) I”), that had downloaded from raphy been Usenet, sites, locat- through ious Internet Congress held that could not which had Atlanta, News Georgia, ed in via the FOX possession por intrastate of child regulate UUNet, whose provider, Internet MCI I vacated and nography. Maxwell was Herndon, Virginia. is located in server light by Supreme Court remanded and Ex- Missing The National for Center of Gonzales v. see United States ploited analyzed pornography Children — Maxwell, U.S. -, many images and determined that (2005) (mem), subsequent L.Ed.2d 29 European were from Eastern downloaded Circuit, by see ly overturned the Eleventh An officer and Russian Internet sites. Maxwell, 446 F.3d 1210 States v. United Navy from the States Center (11th Cir.2006) (“Maxwell II”). that, have testified Child Protection would Raich or the benefit of either Without expert opinion, in her at least II, ap- District denied Maxwell Court con- images given to her for examination indict- motion to dismiss the pellant’s to deter- enough tained detail and content ment. court ruled they depicted mine that children who were 2252A(a)(5)(B) ap- was constitutional as years age images and four under 18 Sullivan, images plied to because prepubescent. who were depicted children Audio, Video and “instrumentali- expert pornography An Forensic were Laboratory FBI Image Analysis from the “things” in interstate commerce ties” or images these have testified Internet, a “channel” passed over the chil- photographs were taken from of real commerce, or, alternatively, of interstate artificially created. dren and were not the conduct at issue-— a substantial pornography of child personally Appellant admitted that he —has In the commerce. pornogra- relation to interstate images downloaded the of child view, Congress system, any trial court’s acted within board or public other or sought it to limit the private computer its when network.

supply pornography and demand for child all targeting participants the illicit approval legal Without of a market: guardian, the defendant shall have no people intended to reach who direct, indirect, contact with chil- material,

create this kind of and also dren, age younger, 18 or and shall re- people seeking through who are what- frain loitering place where means, ever including through the Inter- congregate, children including but not like Mr. People net. Sullivan fuel the residences, arcades, limited to parks, it. market for playgrounds, and schools. He shall not reside with a child or children under Motions Tr. at 30. age of 18 expressed without the 16, 2005, Subsequently, September on written approval legal the minor’s hearing the District Court conducted a guardian permission and the written address issues related to sen- the Court. securing parties’ agree- tence. After (3) The possess any defendant shall not (“PSR”) Report ment that the Presentence oriented, pornographic, sexually or sexu- errors, contained no factual the court went ally materials, stimulating including vi- arguments regarding prop- on to hear sual, auditory, telephonic, or electronic explained er sentence. The court that it media, computer programs or and/or apply Sentencing Guide- services that relevant to the offend- [sic] lines, force, currently not the version er’s pattern. deviant behavior He shall give appellant order to the benefit of a not patronize any place pornogra- where lower base offense level. See United accessed, obtained, phy or erotica can be Bolla, States v. 1148, 346 F.3d 1151 n. 1 viewed, or including establishment [sic] (D.C.Cir.2003) (discussing U.S.S.G. where sexual entertainment is available. lBl.ll(a) lBl.ll(b)(l)). §§ & parties Case, Judgment in a Criminal presented arguments mainly related Sullivan, States v. (D.D.C.2005), CR 04-82 psychological Sullivan’s condition and the added). (numbering at 3-4 applying method of in light the Guidelines Appellant challenge now renews his Booker, of United States v. 543 U.S. indictment, that, maintaining ap- as (2005). L.Ed.2d 621 him, 2252A(a)(5)(B) plied represents The District appel- Court then sentenced congres- unconstitutional exercise of lant imprisonment, to 30 months’ to be power. sional He also challenges certain years followed two re- the conditions of release im- super- lease. Three of the conditions of posed by the District Court. vised release are at appeal: issue (1)The possess defendant shall not Analysis II. computer any use a has access Constitutionality A. The of Sullivan’s computer any “on-line service” at loca- Indictment tion, including place employment, Appellant following argument makes the prior approval without the written of the of his support appeal: computer Probation Office. “On-line 2252A(a)(5)(B) includes, to, service” but is not limited un- Title 18 U.S.C. provider, applied Internet service bulletin constitutional as to Sullivan be- Wickard, (1942). “even As we stated Congress’ au- exceeds the statute cause activity though local and appellee’s if be to the Commerce thority pursuant it Lopez, may regarded not States it be [United Clause. nature, 549, 558, still, may 115 S.Ct. its be whatever (1995)], Supreme Court L.Ed.2d 626 if it exerts a sub- by Congress reached Congress areas that three identified effect on interstate stantial economic to the Com- pursuant regulate could Id., at 63 S.Ct. 82. commerce.” 1) channels of inter- merce Clause: required Congress to We have never 2) commerce; the instrumentalities state exactitude. legislate with scientific “ 3) commerce; conduct that the ‘total When decides ” com- affects interstate substantially a threat practice poses incidence’ of a 115 S.Ct. 514 U.S. merce. market, may regulate to a national it shows, the con- As case entire class. possession—is regulated duct here — Id. at 2205-06. Careful review activity, therefore purely intrastate it clear to decision Raich makes Court’s all, it can be may regulated if be the dis- holding us that the there controls third Lo- only regulated pursuant If, under position of this case. regu- cannot category.... Congress pez Congress may purely criminalize intrastate pursuant conduct late Sullivan’s marijuana, it follows and use of production the con- Lopez category because third possession of may here that it criminalize substantially affect inter- duct did not transmit- pornography that has been state commerce. Inter- through multiple ted states via the problem Br. at 11-12. The Appellant’s net. completely is that it argument with this law, marijuana is classi- Under federal v. decision in Gonzales ignores Court’s I 21 drug, fied as a Schedule U.S.C. Raich. 812(c), illegal, id. and its use is therefore the Court in Raich question before 841(a)(1), 844(a), very §§ with a limited in power vested Con- was “whether 823(f). uses, for id. exception research I, 8,§ gress by Article of the Constitution Act, Compassionate how- California’s Use neces- make all Laws which shall be ‘[t]o ever, a doc- patients allowed certain with carrying into Execu- sary proper and cultivate, approval possess, to and tor’s authority ‘regulate tion’ its to Commerce marijuana. 125 at consume S.Ct. Nations, among the sev- foreign with in plaintiffs 2199. The Raich included power prohibit includes the eral States’ residents who suffer[ed] “California marijuana cultivation and use of the local variety medical conditions and of serious in law.” 125 compliance California medical sought ... to avail themselves of answering question at 2199. In S.Ct. marijuana of the pursuant to the terms affirmative, not- tellingly the Court Act.” at 2199-2200. Compassionate Use Id. ed: licensed, They were under the care of firmly case law establishes Con Our who family practitioners, board-certified purely local gress’ power regulate marijuana only was the had concluded part of an economic activities that are give par- these drug available of activities” that have a substan “class treatment. Id. at 2200. ties effective See, tial on interstate commerce. effect posses- it was determined that their When States, 402 U.S. e.g., [Perez marijuana violated federal sion and use 1357, 146, 151, L.Ed.2d 686 91 S.Ct. 28 law, brought suit Filburn, plaintiffs the Raich ]; 317 U.S. Wickard seeking in- 82, Attorney General 111, 128-129, against L.Ed. 122 63 S.Ct. 87

889 declaratory prohibiting general categories relief have identified three junctive and regulation Congress of the Controlled Sub- which is au the enforcement (“CSA”) Act insofar as abro- engage stances thorized to under its commerce rights Compassion- under the gated First; their power. regulate can above, only Act. As noted issue ate Use channels commerce. in Raich was whether before the Court States, 146, Perez v. United 402 U.S. pos- criminalize intrastate Congress could 91 28 L.Ed.2d S.Ct. marijuana. Significant- session and use of (1971). Second, Congress has not attack the ly, plaintiffs the Raich did regulate protect the instrumen- face, of the on their but provisions CSA per talities of interstate only as-applied challenge. See mounted things sons or interstate commerce. the narrowness of Despite id. at 2204-05. Third, Congress power Ibid. has the found no constitu- challenge, the Court regulate substantially activities that af tional defect the Government’s enforce- Ibid.; fect interstate commerce. NLRB drug of federal law. ment Laughlin Corp., v. Jones & Steel support proposition of the Con- 1, 37, L.Ed. gress “power regulate purely had local (1937). part that are of an economic activities (footnotes omitted). at Id. The Court ‘class of activities’ that have a substantial only category— then noted that the third commerce,” effect on interstate id. regulation substantially of activities that

the Court described the evolution affect interstate commerce—was issue Commerce Clause: in the case. Id. As charted considerable detail In amplifying category, this third Lopez, our understand- United States Raich focused on its decision in Court of the Commerce ing of the reach Filburn, 111, Wickard v. 317 U.S. 63 S.Ct. Clause, Congress’ assertion of as well as (1942), 82, 87 L.Ed. which had held thereunder, authority has evolved over Congress’ interstate commerce au emerged The Commerce Clause time. thority regulate produc allowed it to the Framers’ to the central response as personal tion of intended for con wheat problem giving rise to the Constitution on a farm. sumption Central itself: the absence of federal com- prem in analysis Wickard was the Court’s power under the Articles of Con- merce if homegrown ise that even the effect of century For the first of our federation. trivial, on interstate commerce was wheat history, primary use of the Clause congres it remained within the ambit preclude the kind of discriminato- was Wickard, authority. See 317 U.S. at sional ry that had once been legislation state 127-28, 63 82. The Raich Court S.Ct. Then, response rapid in permissible. between this found that the “similarities and an increas- development industrial striking.” 125 S.Ct. case and Wickard are interdependent economy, national ingly at 2206. Both cases involved the cultiva in a new era of fed- Congress “ushered tion, consumption, fungi a [of] “for home regulation eral under commerce commodity is an estab ble for which there beginning the enactment of power,” with 1887, “[j]ust market. Id. And Act in 24 lished” interstate the Interstate Commerce 379, Adjustment Act Agricultural and the Sherman Antitrust [in Stat. as the amended, Act in 26 Stat. as the vol designed was ‘to control ] Wickard § 2 seq. U.S.C. et in moving ume interstate [of wheat] in to avoid sur era,” foreign commerce order during that “new Cases decided ’ consequently ... control the spans century, pluses more than a which now before, many purpose of the have done times we refuse primary a price, market supply components control the of that is to to excise individual Raich] CSA [in in larger of controlled substances and demand scheme. drug markets.” lawful and unlawful both (footnote Id.' at omitted and second (third and fourth alterations Id. at 2206-07 ellipsis original). omitted). (internal citations original) Applying this test to facts of this “Congress The thus concluded Court case, was we must conclude concluding basis for had a rational authority acting well within its under Arti marijuana outside leaving home-consumed i.e., I, § regulate cle “to activities that 8— ... price control would affect federal commerce,” substantially affect interstate conditions,” given especially market criminalizing at 2205 — in homegrown mari- risk of illicit diversion possession of child pornography transmit juana the interstate market. Id. into through ted several states via the Internet. 2207. prohibition against possessing The child ap- The in Raich then stated the Court pornography transported interstate plicable assessing scope test for by computer important commerce is one Congress’ under the Commerce aspect of comprehensive legislative a comprehensive legislation: Clause to enact eliminating scheme traffic in aimed child stress that the task before us is [W]e 2252A(a)(5)(B), pornography. Section need not determine modest one. We case, which is at issue this was enacted activities, taken in respondents’ whether part Pornography the Child Preven substantially aggregate, affect inter- tion Act of Pub.L. No. fact, only state commerce but whether 121(3), 110 Stat. 3009-28 exists for conclud- “rational basis” so (the “CPPA”). regulatory scheme en ing. by Congress acted por to deal child test, Applying

Id. at the Court nography prohibits: exploiting children that, held producing pornography using materi [gjiven enforcement difficulties that als 18 U.S.C. distinguishing marijuana attend between (2000); § transporting, shipping, or locally marijuana cultivated and grown receiving depictions pornography of child ... elsewhere and concerns about diver- commerce, in foreign or interstate id. channels, illicit sion into we have no 2252; § producing exporting por or child difficulty concluding Congress had nography abroad with the intent believing a rational basis for that failure States, 2260; § enter the United id. and regulate to the intrastate manufacture possessing pornography child that has marijuana possession of would leave in traveled interstate id. Thus, gaping hole the CSA. as in § subjects 2252A. statute also prop Wickard, comprehen- when it enacted erty pornography used child offenses regulate legislation sive the interstate criminal provisions. and civil forfeiture Id. fungible in a commodity, market Con- §§ 2253-2254. gress acting was well within its authori- drug Like the illicit motivating networks ty to “make all Laws which be shall CSA, passage of trade child necessary proper” “regulate pornography “quintessentially econom- ... among Commerce several Raich, Const., I, ic.” See 125 S.Ct. at 2211. The § States.” U.S. Art. That 8. regulation explained ensnares in- Court “economics” refers to purely some distribution, activity production, trastate is of no moment. As we “the and con- exploitative Id. at 2211 nate the market for the sexual of commodities.” sumption 104-208, use of children.” Pub.L. No. (quoting Webster’s New Interna- Third (1966)). The activi- Dictionary 121(1)(12), (empha- § 110 Stat. at 3009-27 tional in its anti-child targeted by Congress added). Wickard, ties recog- In the Court sis clearly fit this def- pornography legislation congressional objective of nized marijuana, pornogra- child inition. Like by controlling regu- the market for wheat fungible commodity “a for which phy is lating price accomplished its “can be established, illegal, an albeit inter- there is effectively by sustaining increasing Controlling Id. at 2206. state market.” by limiting supply,” including demand as thus re- pornography the trade of child homegrown supply by consumed farm- marketplace. of the illicit quires regulation ers. S.Ct. digital por- of child possession Intrastate Criminalizing pornog- of child possession susceptible to “diversion” into nography is “price” of raphy likewise increases the markets, at least as much as by of pornography attaching pros- the risk marijuana. Accordingly, the Government’s ecution, a market intervention meant by marketplace the illicit efforts to control the illicit trade. eliminate and demand is facilitated limiting supply Raich, sum, following we find that a possession of intrastate by regulation believing rational basis exists for that fail- pornography. child the intrastate regulate ure to Indeed, effects this case the economic pornography child that has been “trans- compelling than appear to be even more ported foreign interstate or commerce In contrast to in Raich or Wickard. those computer,” see 18 U.S.C. marijuana, supply of electron- wheat or 2252A(a)(5)(B), significant would leave pornography has a viral images ic gap Congress’ comprehensive efforts user downloads every character: time one sexually exploita- the market for eliminate simultaneously produces a image, he application That the tive uses of children. image. version of that Transfers duplicate 2252A(a)(5)(B)might some “ensnare[ ] marijuana merely subdivide an of wheat or activity intrastate is of no moment.” purely cache; digital pornog- existing transfers of legiti- at 2209. hand, multiply the raphy, on the other problem a national that is mately identified commodity, so that existing supply of the ie., economic, it involves quintessentially holdings if are possessor’s even the initial of a com- the manufacture and distribution may fur- destroyed, subsequent possessors subject supply modity to the forces propagate images. ther This means problem, To ameliorate that demand. increases the possessor that each new in an illicit market- Congress intervened supply pornographic images. available rationally conclude place. it could Because the im- multiplying highlights This effect pornog- of child possession that intrastate a stash eliminating possessor’s portance market has an effect on those raphy instance, in it can be dis- the first before forces, pro- it acted within its marketplace. into the seminated holding Both the and scribing possession. findings at- Congress As noted easily to this reasoning apply of Raich CPPA, “prohibiting pos- tached to the case. pornography child viewing session and every appellate noteworthy that It ma- encourage possessors of such will question court that has considered destroy the to rid themselves of or terial conclu- reached the same material, post-Raich has protect thereby helping II, In Maxwell today. reach and to elimi- sion that we pornography victims of child lating was able to “find equipment. the Eleventh Circuit material” and video He constitutionally very distinguish little to asserts that these conditions were unlaw- Maxwell’s claim from Raich’s.” Maxwell fully imposed, they were not listed (footnote omitted). II, 446 F.3d at 1216 as suggested conditions of release either Raich, analysis in Following the Court’s Sentencing the 2002 Guidelines or the PSR the Maxwell II court determined that and he received no other advance notice part comprehensive “the CPPA is of a them, might impose alleg- the court regulatory criminalizing scheme the re- edly required by Federal Rule Criminal distribution, sale, ceipt, production, pos- 32(i)(l)(C). Appellant Procedure also con- session, solicitation and advertisement of tends the conditions are inconsistent child Id. at 1216-17. The pornography.” statutory with the factors listed in 18 court therefore reversed its earlier course 3553(a) (2000), § U.S.C. which the court upheld Maxwell’s conviction. issuing was bound to consider in non-man- rejected Fourth Circuit likewise an as- (or datory “special”) terms of 2252A(a)(5)(B) § applied challenge to release, 3583(d), § see id. (4th Forrest, United States v. 429 F.3d 73 District Court never “substantiated” the Cir.2005). Having found the case before disputed need for the Apply- conditions. Raich,” it “strikingly similar to the court ing applicable plain error standard of “in explained both instances review, we find arguments none these had a rational basis for concluding that persuasive. prohibition of mere local commodity regulation was essential to the Our analysis appellant’s sentenc established, illegal, of ‘an albeit ing arguments on lodge turns his failure to ” Raich, (quoting market.’ Id. at 78 125 any objections with the District Court. 2206). Finally, S.Ct. at the Tenth Circuit Appellant and his counsel stood in the in rejecting has twice invoked Raich simi- sentencing judge’s presence, listened to § prohibition against lar attacks on 2251’s specific sentence, yet terms of the producing pornography using materi- objections any alleged voiced no lack of shipped als that have been in interstate opportunity advance notice or to comment Grimmett, United States v. conditions, on proposed or to the sub (10th Cir.2006); F.3d 1263 United States stance of the terms release. Jeronimo-Bautista, 425 F.3d 1266 timely When defendant fails to raise a Cir.2005), and the Sixth Circuit has cited objection Court, with the District we re rebuffing Raich an attack on arguments view appeal introduced on 2252(a)(1), Chambers, United States v. plain error. Simpson, United States v. (6th Cir.2006). 441 F.3d 438 Applying the (D.C.Cir.2005). 430 F.3d To principles we, too, set forth are prevail, appellant must show that the reject constrained to the constitutional (1) District legal Court committed error 2252A(a)(5)(B). challenge to (2) (a that was “plain” synony term that is Supervised B. The Terms of “obvious”), Release mous with “clear” or and that affected the substantial challenges Sullivan also the conditions of Olano, rights. United States v. 507 U.S. supervised release, focusing on the condi- 725, 732-34, 113 123 S.Ct. L.Ed.2d (1) tions that computer restrict his use of (1993). met, If all three (2) conditions are services, require Internet him to we retain discretion a to notice forfeited approval have from the Probation Office (4) error, having any minors, only seriously before but if the error contact with fairness, forbid possession “sexually his of stimu- integrity, public affects the or “[bjecause that, Id. at made it judicial proceedings. the Court clear reputation of 735-36, 113 of the of the reason- question timing the S.Ct. required not by able notice Rule 32 is that, be first contends Appellant us, express opinion we no on before super challenged conditions of cause the Rather, we it to the lower issue. leave mandatory not were listed as vised release courts, which, course, of remain free to applica discretionary or conditions the procedures by local adopt appropriate Guidelines, District Sentencing ble the 6,n. It is rule.” Id. at 139 111 S.Ct. 2182. sua imposition the conditions Court’s significant also the Bums decision Rule 32. Rule a sponte violated Under plain not involve an application does parties’ “must the sentencing court allow Appellant recog- apparently error rule. probation attorneys to comment on the does dis- nizes that Bums not control the matters determinations and other officer’s Nonetheless, position appel- of this case. relating appropriate to an sentence.” logic us to the broadly lant invites embrace 32(i)(l)(C). Imposing P. FED. R. CRIM. in a case in is of Bums which review to a that were never forecast conditions by plain the controlled error standard. defendant, argues, runs afoul of appellant the invitation. not decide this We decline requirement. We need question, even if was error for it position, in- support appellant disputed to impose the District Court Wise, States 391 F.3d vokes United to giving advance notice conditions without (9th Cir.2004), in which the Ninth Circuit Sullivan, certainly it most was not revers conditions of release reversed plain under the rule. ible error error contact with that restricted defendant’s the District argument Sullivan’s own), (including prohibit- her children give to failing Court committed error in possessing pornography her from ed him notice of the conditions advance stimulating Id. at 1030- sexually material. purported release rests on ruled was a 31. The court that notice States, 501 to Burns v. United analogy restrictions, necessary antecedent to those 115 L.Ed.2d 123 impose not “first to enough and that is that, (1991). held The Court Bums sentence, counsel to and then to invite depart upward court can “before a district comment, objects as at least where counsel ground ground on a not identified as a (emphasis Id. occurred here.” at 1033 presen- either in the upward departure added). quite different The instant case is prehearing or in a submission report tence Wise, did appellant here because the Government, requires Rule 32 objection District an with the not raise give parties court reason district object- had If counsel Court. it is such a contemplating able notice that ed, time to sought could have more he iden ruling. specifically This notice must If that adequate response. an prepare tify court ground on which the district denied, have request had been we upward departure.” contemplating position in a decide whether been 138-39, Id. As the S.Ct. 2182. reasoning embrace Wise. “it explained, Court makes no sense prin- applied Circuit The Tenth has Congress an that a defen impute to intent with a matter ciples of Bums connection right on the dant have the comment supervised release in United involving appropriateness sponte departure sua Bartsma, 1191, 1194 that the States right not the to be but notified Cir.1999). pled there The defendant Id. contemplating ruling.” such a court is by a a firearm Importantly, guilty 111 S.Ct. 2182. view, when, here, and was required, convicted felon as a our a defendant is release, supervised register condition of to provided opportunity with an to articulate as a sex offender because his criminal his- position by and then stands as the tory, things, among prior other reflected court announces its determination without rape convictions for and child molestation. interposing any objection, we can find no Although object the defendant did not to fairness, threat to the integrity, public this condition until the case was heard on reputation judicial proceedings justify- appeal, the court nonetheless held that ing grounds reversal on plain error. applies “the Bums rationale when a dis- Appellant urges us to review the sub- considering imposing trict court is a sex validity stantive supervised terms of registration requirement offender spe- as a for release abuse of discretion. He ac- release, cial supervised condition of that, knowledges “[generally, where a the condition is not on its face related to sentencing court affords the defendant an charged.” the offense Id. at 1199-1200. opportunity object special condi- evidently The Tenth Circuit was concerned silent, tions but the defendant remains an glaring disjunction about the between the appellate court plain reviews for un- error crime of conviction and the nature of the 52(b).” der Fed.R.Crim.P. Appellant’s Br. Indeed, conditions of release. the court contends, at 47. Appellant however, that expressly any disclaimed intent to “create where “a court imposes special condition a rule ... notice requiring prior to the resolving objections to the PSR and after imposition every special condition of permitting defendant to make a release,” after restricting holding its statement, the defendant has no meaning- unique “the facts” of the it case decided. opportunity ful to comment.” Id. at 47-48. Id. at 1200 n. 7. The instant case does not Appellant that, argues instance, “[i]n disjunction involve a between the crime the attack special on the condition is not release, and the conditions of so Bartsma waived the defendant’s failure to assert gives support little position. below, and the abuse of discretion stan- Finally, that, Fifth Circuit has held applies.” dard Id. at reject 48. We this Bums, under Rule 32 and a defendant who argument. There is neither compelling le- subject is to sex-offender conditions is en- gal authority good nor reason for such a titled to receive notice advance sen- proper rule. The standard of here review tencing that such conditions are under con- plain error. Coenen, sideration. United States (5th Cir.1998). However, F.3d above, As noted once appellant was defense objected counsel Coenen when made aware of the conditions that pronounced sentence was and thus District Court intended to impose, his preserved appeal. the issue for Id. at 941. position counsel was in a to respond or to seek additional time which to formulate case,

In this defense counsel’s failure to a response. Standing mute is not op- disclose misgivings about the absence tion, not if litigant wishes to avoid a plain of pre-sentencing notice appel- forecloses error standard of review on appeal. lant’s claim This plain At error. least two case does other not involve a courts situation which reviewing similar challenges plain defendant was rejected error have barred from attempts speaking, apply objecting, Rule 32’s or seeking notice strictures in more time after the Ristine, context. See judge United States v. District Court made clear what he Cir.2003); had in mind with respect States to conditions of Brown, (1st Cir.2000). 235 F.3d record, release. On this we

895 Ristine, restrictions, the ing computer pro- to the rejecting in holding with agree the minors, that against there “we should hibition contact with the appellant’s the claim standard, and of discretion sexually stimulating use abuse restrictions on mate- error, defendant’s] plain [the not rials, and on cameras and the ban video lack of object to stemmed failure these recording devices. None of condi- challenged conditions would notice that the sync plainly tions is so out of with the at 694. The ab- imposed.” 335 F.3d be 3553(a) §in statutory goals enumerated in this objection case means sence of an plain to under a as warrant reversal error plain claim we for that review standard review. error, none. and we find First, involving prosecution in cases reviewing conditions Normally, to “sex crimes”—which is defined include the under abuse of release on appellant’s offense—restrictions com- standard, appellate court the discretion explicitly and service are puter Internet trial court measured the considers how the 2004 contemplated Sentencing statutorily against imposed conditions Guidelines, when which were effect Sul- sentencing goals. The deci enumerated livan’s determined. sentence was U.S.S.G. Stanfield, v. sion United States 360 F.3d 5D1.3(d)(7) (2004). While version (D.C.Cir.2004), en describes what is 1346 govern not appel- of the Guidelines did tailed: certainly suggests sentencing, lant’s of supervised of a term imposition computer “reasonably can be restrictions is authorized imprisonment release after related” to offense conduct. Sullivan’s (d) by 18 3583. Subsection U.S.C. Moreover, circuit pro- no this precedent the court provision specifies good deny yalidity to vided reason may condition order points Appellant a restriction. such to be appropriate,” “it considers release Stanfield, not that case does cast but is to the the condition “reason- extent here. on the at issue Re- doubt sentence nature circum- ably and related” confusing viewing a and Internet broad and history offense stances of the restriction, the case “to we remanded allow defendant, of the characteristics clarify scope district court crime, protect to the need to deter F.3d at 1354. But restriction.” 360 crimes of the defen- public from further Stanfield, filed a had motion the defendant dant, provide training, needed and to clarify the court to restric- trial care, treat- or other correctional medical Id. The record in tion. 1351-52. The condition ment to the defendant. shown, case, quite as we different. have greater deprivation “no also must entail reasonably necessary” liberty than is yet to decide whether This circuit has deterrence, provide adequate pro- may of sex crimes individuals convicted meet tect and to the defen- public, usage conditioned on have their Internet and medical needs. dant’s vocational our approval, and sister Probation Office omitted). (internal citations Id. Compare 1352-53 the issue. circuits are divided on standards, “sentencing Rearden, In applying these F.3d States v. 349 United wide discretion when judges are afforded (9th Cir.2003) (upholding Internet re- super conditions of imposing terms Zinn, v. States striction), and United Henkel, States v. vised release.” Cir.2003) (11th (same), F.3d Cir.2004). 1013, 1014 Crume, 422 F.3d with United States (8th Cir.2005) (reversing Internet case, appellant challenges In this Sofsky, States restriction), and United supervised release relat- the conditions of (2nd Cir.2002) 122, (same). 287 126 F.3d can lant] seek modification of the condi- circuits, tions.”). among This division the coupled the indication the Sentencing III. Conclusion Guidelines that measure some of Internet appropriate restriction is in cases like this above, For given the reasons the judg- one, commands our conclusion that the ment of the hereby District Court is af- trial court committed no plain error. firmed.

Sullivan’s other challenges to the validi- So ordered.

ty of his terms of release are SENTELLE, Judge,

also Circuit points concurring. meritless. He to no D.C. Cir- authority cuit arguably that is even incon- join I without reservation majority’s any sistent with remaining restric- disposition of the sentencing issues as set tions. areWe thus satisfied that none of forth in Part II.B. of majority opinion. challenges conditions that he warrants I write separately as to the merits disposi- reversal. expressed H.A., tion in Part not I because Nor do we consider majority’s find merit opinion Sullivan’s be error, terse contention that his sentence is but to express my flawed concern about because the District Court failed to what appears “sub- to me to be a confused area stantiate” the terms of release. constitutional law. I wholly agree with As with the sentencing other appellant’s issues we argument that discussed, have Sullivan and his counsel 2252A(a)(5)(B) Title 18 U.S.C. is un- sat in court judge pronounced while the constitutional applied to Sullivan be- sentence, they but never voiced an cause the statute Congress’ exceeds au- objection ground on the that the District thority pursuant to the Commerce Court had failed to substantiate the condi- Clause. In [United States v. Lopez, 514 tions of release that were imposed. And 549, U.S. 115 S.Ct. 131 L.Ed.2d appellant has offered no viable basis for (1995)], 626 the Supreme Court identi- ascribing plain error to the trial court on fied three areas that Congress could this issue. regulate pursuant to the Commerce 1) Clause: the channels of end, interstate In the we can plain find no error 2) commerce; the instrumentalities of with respect appellant’s objec belated 3) commerce; conduct tion to sentencing conditions. There is that substantially affects interstate com- no indication here that substan merce. 514 U.S. at 115 S.Ct. tial rights affected, have been see United shows, As case the con- (D.C.Cir. States Baugham, 449 F.3d 167 regulated duct 2006) possession—is a (appellant must specific “‘make a here — purely activity, intrastate and therefore ie., showing prejudice,’ show that the may if it regulated all, be it can be error ‘affected the outcome of the district regulated only pursuant to the third Lo- ”) court proceedings’ Olano, (quoting pez category .... Congress reg- cannot 1770)), U.S. at 113 S.Ct. because there ulate Sullivan’s pursuant conduct to the showing is no here that judge Lopez third category because the con- imposed have less onerous conditions even duct did not substantially affect inter- if appellant had been afforded “advance” state commerce. McKissic, notice. United States v. Cf. Cir.2005) (“It did not Appellant’s would, Br. at 11-12. I there- ‘affect rights’ substantial [appel- fore, vote to reverse appellant’s conviction — support intervening the rationale offered Supreme not for the were (ie., constitutionality of statute stat- decision Gonzales Court utory legislative history, argu- findings, 162 L.Ed.2d 1, 125 S.Ct. counsel, reluctance, reviewing or a court’s (2005). join I ments of With some stat- purposes own attribution of Supreme the latest decision that majority’s challenged) logical stop- ute has a beihg of this compels affirmance opinion Court point, that the is not so ping from so rationale my But reluctance arises conviction. regulate on a similar basis of broad as to inconsistency Raich apparent the endeavors, those especially all human Lopez. traditionally regulated by the states.1 argument properly points As of the out, limited the reach Com- Lopez to me plain present It is not at all that the categories. three merce Clause ana- any of the three conduct falls within by ap- plainly implicated are not first two First, it clear that lytical elements. is not Therefore, for conduct. the fed- pellant’s regulation purely possession of intrastate constitutionally regu- government to eral necessary product regulation is conduct, fall within the it must late activity of the commercial which having a of “activities substantial category Second, there is no regulate. seeks to ... relationship to interstate commerce Third, if jurisdictional relevant section. ie., substantially af- those activities noncommercial purely the intrastate and ” Lopez, .... 514 commerce fect interstate simply possession product regulable of a (citations 558-59, 1624 at S.Ct. U.S. product may the have some omitted). to how purely I am at a loss as passed interstate previously has product of a intrastate point. I stopping then no see substantially interstate previously traveled however, end, I fault the cannot the In analyzing interstate commerce. affects majority’s the later decision application regulation under constitutionality of can,- however, hope Raich. I three, in Lo- Supreme Court category gives decision High Court in some further which, analysis a further pez undertook reconciling method its us some better opinion, Raich the absence holdings congressional the extent of on adjudication question of the our govern the Interstate Commerce power under id., 559-65, us. See 514 U.S. before Clause. analysis generally That covers following elements: three — a commer- regulation controls activity necessary to activity, or an

cial commercial activ- regulation of some

ity;

— jurisdictional statute includes requirement to ensure that each

nexus activity affects instance of

regulated commerce; and directly Judge taken Boggs’s formulation is inquiries specific of the 1. This formulation 115 S.Ct. Lopez, necessary category is drawn from under Builders Wall, Home also Nat’l Ass’n 1624. See F.3d 1455-56 United States (D.C.Cir. Babbitt, J., 1996) dissenting part). (Boggs, Cir. J., 1997) (Sentelle, However, dissenting). points each summarized in

Case Details

Case Name: United States v. Sullivan, Roger

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jun 27, 2006

Citation: 451 F.3d 884

Docket Number: 05-3161

Court Abbreviation: D.C. Cir.