United States v. Todd Hobbs
710 F.3d 850
8th Cir.
2013
Check Treatment
Docket

*2 LOKEN, Bеfore BRIGHT, and COLLOTON, Circuit Judges. LOKEN, Judge. Circuit pleaded guilty possession of child pornography in viola tion 2252(a)(4)(B). 18of U.S.C. At sen tencing, the district court1 downward variance and sentenced Hobbs sixty months in followed five years supervised ap peals sentence, arguing the district court аbused its discretion in imposing conditions of re quiring advance Probation 1. The Honorable Kopf, Richard G. braska. Judge States District for the District of Ne- and dis- receiving to dismiss agreed (i) reside may before On Febru- sentencing. 18, in count at tributing age

contact officer visited “any mаte (ii) services own, possess ary cluding stimulating or smelled alcohol. home and Hobbs’s rial *3 court’s a district had girlfriend long-time review We his that oriented.” admitted super of conditions special beer, that and imposition of 18-pack of an brought home But of discretion. for abuse evening release vised that beers to twelve ten drank he im on “restrictions carefully scrutinize violation, Based on got drunk. and apply de rights” and constitutional portant or- release and pretrial revoked the court are restrictions if such review nоvo sentencing. pending detained Hobbs dered Schaefer, “sweeping.” Report Investigation Presentence The Cir.2012). In advisory guide- an (PSR) recommended con impact at issue case, restrictions the in prison, months of range lines sweeping. not are but rights stitutional statutоry maxi- the 120-month subject to rec sentencing the of careful Upon April 26 the days before Three mum. did the ord, we conclude filed Officer Probation the sentencing, and there discretion its substantial abuse Sentencing Recommendations. lengthy affirm. fore the sentence recommended She months, Background I. advisory range, of the bottom Nebraska, explaining: po- Lincoln, 2011, a depictions the report, visual accessed investigator presentence in the lice As noted sexually explicit in engaged minors of is different case defendant’s IP address by an being shared conduct cases pornography of child majority Lincoln. A in Hobbs assigned of Nebraska in District prosecuted and residence of Hobbs’s search warrant result- prior convictions he has because storage comрuters and his of examination Histo- in a placement Criminal his in 20,000 images of over uncovered media defendant The Category II.... ry vid- including multiple pornography, child dependence alcohol diagnosed been prepu- of penetration adult depicting еos history convictions criminal and his pos- admitted Hobbs females. bescent alcohol abuse to his related to be appear and stated pornography the child sessing pre- Additionally, the defendant’s issue. accessing pornography child had been was after he was revoked release trial He was years. seven approximately on bond while consuming alcohol caught receiving and charged in June Therefore, offense.... instant for the violation pornography child distributing of part an essential will be treatment 2252A(a)(2), § and 18 U.S.C. of defendant’s The future. Mr. Hobbs’ child possessing offence less serious on pornography of child possession of 18 U.S.C. in violation pornography feeds and very serious computer 2252(a)(4)(B). the sexual perpetuates that market Hobbs arraignment, Aftеr time length of The of children. abuse recognizance personal pretrial possessed and collected defendant he ab- including that subject to a sub- case is in this pornography child and attend consumption from alcohol stain factor well. stantial for his counseling sessions treatment and by recom- concluded Probation January On addiction. impose mending that the possession guilty pleaded release, including child pornography, issue, the two here at which provide in Defense counsel then objectеd por- to the tion of Special Condition n #20 prohibiting material part: 11. The defendant shall have no con- possessing “sexually stimulat- tact, nor ing” reside with children material under the office age of including children, [his] own deems to be inappropriate. The cоurt also approved unless advance objection. the U.S. overruled this Probation Officer in consultation with II. Condition # 11 providers.... ... The Before defendant pos- detention, shall not sess, view, or otherwise lived with any partner use material years, their sixteen-year-old stimulating daughter, their eleven- *4 oriented year-old deemed to son, be inappropriate by and Hobbs’s seven-year-old the U.S. stepson. Probation Officer in consulta- boys will still be minors tion with the provider. when Hobbs finishes serving his sentence. It is undisputed that Hobbs has At sentencing, the distriсt a close positive relationship with his Hobbs’s motion for a variance, downward son, Schuyler, who has begun to exhibit in part to avoid unwarranted sentencing behavioral issues at at'school, home and disparity with other District of Nebraska and has a loving parent been to his step- child pornography offenders, and sen- son. On appeal, argues that, Hobbs tenced sixty him to months in prison, fol- requiring prior approval by probation a years lowed five of officer before Hobbs can see and live with subject to “the standаrd togeth- children, his own Special Condition #11 er ‍‌‌‌​‌‌​​‌‌​​‌​‌‌​‌​‌‌‌‌‌​​​‌​​‌‌​​‌​‌​​‌‌​​‌​‌​​‍with the special conditions outlined in exacts a greater deprivation of liberty than the [Probation Officer’s] sentencing recom- necessary and interferes with his funda- mendation.” Defense counsel timely ob- mental libеrty interest in the relationships jected Condition # 11: “I’d like with his children. emphasizes that [the to say today court] that [Hobbs] has his conviction was for possession of child ability to live with own children.” pornography, not the more serious offense The court replied: “I think that that рrovi- of distribution; that he has no history of sion ought to say remain. And I that sexual minors; abuse of that a licensed because of the defendant’s alcoholism.” clinical psychologist opined after a psy- full The colloquy concluded: chological assessment thаt the risk of [DEFENSE Well, COUNSEL]: Hobbs committing sexual violence or even with&emdash; do, has nothing to though, Judge, engaging in “cyber future pornography” is Yeah, THE COURT: it every- low; that family has serious financial thing to do with why that provision is in issues and him wants to return home as there. soon as possible; and that hе again wants [DEFENSE COUNSEL]: But to be a positive influence before son been there’s no showing whatsoever that Schuyler graduates high school. his own children have been at risk for any kind of perpetration sexual by him. The relationship parent between And, fact, all the evidence is to the and child a liberty interest protected by contrary. the Due See, Process Quil Clause. e.g., THE COURT: I respectfully dis- Walcott, loin v. 246, 255, 434 U.S. S.Ct. 98 agree. I think this is an 549, appropriate (1978). 54 L.Ed.2d 511 Thus, in sex condition. cases, offender we scrutinize more careful- 854 - U.S.-, grounds, other vacated on restricting the defendant’s

ly conditions (2012). L.Ed.2d S.Ct. con than his own contact right to offenders sex restricting childless ditions upholding In our cases Compare children. from contact condition, agreed we type Davis, v. States United restriction that the the district v. Muh (8th Cir.2006), States with United public, protect necessary to reasonably (8th Cir. lenbruch, restrictive, because overly not and was conviction, offense nature of the sex 2012). history of of the defendant’s or because sensi constitutional Despite the proper If the of minors.3 abuse sexuаl restrictions, have re we such tivity risk-of-future-sex-of solely these focus de requiring upheld peatedly factors, agree fense a receive fendants not reveal does in this case the record contacting their officer before probation plac a restriction need” for “particularized v. Si United own children. in the officer’s (8th Cir.2010); mons, 481-82 family reuniting with way of Stults, 575 F.3d But served. has been his sentence when - denied, Cir.2009), cert. treat Hobbs Officer did the Probation *5 1309, L.Ed.2d 175 -, 130 S.Ct. Rather, U.S. she sex offender. typical aas Mark, 425 v. (2010); States United 1093 sentencing recommendations her based Cir.2005); (8th United 505, 507-08 F.3d history of criminal ‍‌‌‌​‌‌​​‌‌​​‌​‌‌​‌​‌‌‌‌‌​​​‌​​‌‌​​‌​‌​​‌‌​​‌​‌​​‍extensive on an part 728, Crume, 733-34 422 F.3d drinking v. States from Hobbs resulting convictions Vick, 421 Cir.2005); v. (8th States United public danger to being a to excess and Cir.2005).2 does&emdash;one (8th That a de disturbing assault, 795 F.3d two he when history physi a not have driving does while intoxicat fеndant peace, and “is not nec minors abstain abuse of failure to convictions&emdash;plus cal or sexual ed issue. this while on essarily determinative” alcohol from Kerr, 523 together 472 F.3d alcohol abuse history v. States This Cir.2006). However, child an “individual (8th longstanding Hobbs’s to reс show led the Probation “particularized a addiction and ized inquiry,” sen range only guidelines a condition, required is ommend not for ing” of need requiring tence, special also Spring but v. States case. United in each testing4 and treatment (8th Cir.2011), and alcohol drug ston, 650 F.3d victim, molest would fearful defendant imposed in was also special condition 2. This (condi Vick, at F.3d 795 daughter); 762 421 Deatherage, F.3d 682 v. States United (8th challenged Cir.2012), histo extensive was not to [defendant's] but tion "tailored Schaefer, minors”). which the appeal. also United ry "strikingly Cir.2006) to this (8th similar” wrongly asserts 568 Levering, 441 F.3d case, was aspect condition sexu (childless forcible defendant committed defendant's factor because not a minor). al act on a age he of 18 when be over the would F.3d 1125-26. released. requires # 3 4.Special Condition "attend, successfully cоmplete and pay (2 Simons, prior crimes at 482 614 F.3d 3. See evaluations, or treatment any diagnostic Stults, victims); F.3d at against minor support approved or programs, counseling of a assault for sexual conviction (prior AA/NA) con- alcohol (e.g., groups and/or Mark, "sexual child); (prior at 508 abuse, by the directed as trolled substance family mem- female exploration” of minor probation officer.” (mother, Crume, ber); herself at 734 in a participation sex-offense-specific sume alcohol consuming accessing sеxu- program, Special well as other Condi- ally explicit materials. including #

tions Special III. Condition # 20 highly Based on individualized in- quiry, conclude the we did Simons, Relying primarily on discretion in imposing abuse its recom- 483-85, F.3d at and United v. Kelly, mended Condition # 11. pur- Cir.2010), pose of protect this restriction is to argues portion that the of Special Condi “children, public; including those of Mr. tion # 20 prohibiting him possessing, [Hobbs], public are members of the viewing, any or using “sexually stimulating the terms of release seek to or sexually oriented” material in “deemed Crume, protect.” 422 F.3d at 734. Hobbs appropriate by the U.S. Probation Officer repeatedly demonstrated that he is in consultation with the provid prone is dangerous to alcohol abuse and er” is unconstitutionally overbroad and when he That poses is drunk. risk to all vague. This contentiоn is without merit. Hopefully, those who live with him. he Though have acknowledged will comply requiring him terms like “pornography” lack precise le to abstain consuming alcohol ‍‌‌‌​‌‌​​‌‌​​‌​‌‌​‌​‌‌‌‌‌​​​‌​​‌‌​​‌​‌​​‌‌​​‌​‌​​‍and suc- definitions, gal repeatedly upheld we have cessfully participate substancе abuse very these same or similar conditions when does, and sex-offender If treatment. they “obviously were relevant child officer “in consultation with pornography offense at issue or to the providers” the treatment will ap- doubtless history defendant’s and characteristics.” prove living family. with his “If such Deatherage, (“sexually 682 F.3d at 764 ori arbitrarily unfairly denied, materials”); ented see United States v. [Hobbs be] will free to seek relief from the *6 Thompson, 653 F.3d 3583(e).” Cir. district under U.S.C.] court [18 2011) explicit materials”); (“sexually Mickelson, Unit United States 433 F.3d Wiedower, (8th Cir.2006). ed States v. 492- (8th Cir.2011) (“sexually explicit We have one unanswered concern with Stults, material”); (“sexu 575 F.3d at 841 Special Condition # failure to 11—its ad- ally sexually oriented stimulating or mate dress the probation whether office must rials”); Boston, United States v. decide to his custody release from if (8th Cir.2007) (“sexually stimulаt may initially in with move his chil- material”). ing Here, oriented dren. This seems to us a critical issue for obviously the restriction is relevant to family, the yet counsel at oral Hobbs’s admitted child addic argument give could no assurance that a addition, In Special tion. #20 Condition timely forthcoming. answer would be We is limited to stimulating or sexual remanding considered consid- explicit ly material, oriented and further limited to eration of this issue but instead conclude obtaining prior probation the may that it reasonably be left to the dis- “in officer consultatiоn with the treatment office, probation cretion of the subject to contrast, provider.” By in Simons and prompt by the court. district Kelly, it view, possessing was an absolute ban on record, our this only on an adverse material nudity,” “that contains which development during incarceration would biology warrant would include and fa prohibiting again Hobbs from liv- textbooks release, art, family upon subject mous works of that caused to over us proceedings revocation should he then re- turn conditions as overbroad. Here, the 483-84, F.3d at in its discretion did not abuse

district court # 20. Special

imposing Condition reasons, affirm foregoing

For the court.

judgment of the district

COLLOTON, concurring Judge, Circuit

in judgment. affirming judgment

I concur condi- imposing special ‍‌‌‌​‌‌​​‌‌​​‌​‌‌​‌​‌‌‌‌‌​​​‌​​‌‌​​‌​‌​​‌‌​​‌​‌​​‍court district join I

tions do regarding statements what

the court’s in 2016 approve officer will by would rule on a decision

how this court record, on district

deny Condition

# 11 Todd Hobbs to move in with his Any custody. upon and the by probation office

decision per- grant court about whether to depend specific on facts and

mission will time they exist at the

circumstances request. Any future decision ren- appellate ‍‌‌‌​‌‌​​‌‌​​‌​‌‌​‌​‌‌‌‌‌​​​‌​​‌‌​​‌​‌​​‌‌​​‌​‌​​‍review should be a contemporane- the benefit of

dered with and an the dis- explanation

ous' record

trict court. *7 America, STATES

UNITED

Plaintiff-Appellee LOGAN, Levitha Defendant-

Elnora

Appellant.

No. 11-3862. of Appeals,

United States Court

Eighth Circuit. Dec.

Submitted: 2012.

Filed:

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