FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-30084
Plaintiff-Appellee, D.C. No.
v. 9:09-cr-00020-
WILLIAM VERNON WILLIAMS, DWM-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted
December 6, 2010—Seattle, Washington
Filed March 7, 2011
Before: Robert R. Beezer, Diarmuid F. O’Scannlain, and
Richard A. Paez, Circuit Judges.
Opinion by Judge O’Scannlain
3175
UNITED STATES v. WILLIAMS 3177
COUNSEL
Jessica L. Weltman, Assistant Federal Defender, Missoula,
Montana, argued the cause for the defendant-appellant, and
3178 UNITED STATES v. WILLIAMS
filed the briefs. Anthony Gallagher, the Federal Defender for
the District of Montana, and John Rhodes, Assistant Federal
Defender, Missoula, Montana, were also on the briefs.
Cyndee L. Peterson, Assistant United States Attorney, Mis-
soula, Montana, argued the cause for the United States, and
filed the brief. Michael W. Cotter, the United States Attorney
for the District of Montana, was also on the brief.
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether sentencing a sex offender to a life
term of supervised release constitutes “cruel and unusual”
punishment under the Eighth Amendment.
I
After having his computer seized by his probation officers,
William Vernon Williams admitted that it contained child
pornography. Williams told the officers that some of the files
depicted incest and child rape. A search of his computer con-
firmed this admission, showing that he had obtained videos of
children as young as ten being raped, and had visited websites
that depict graphic sexual violence against children. Williams
later admitted to having rape fantasies and being attracted to
girls between the ages of nine and sixteen. He also stated that
he most enjoyed child pornography that showed men raping
children. Williams pled guilty to receipt of child pornography,
in violation of 18 U.S.C. § 2252A(a)(2).
This was not the first time that Williams got into trouble for
sexual misconduct. In 2000, Williams was convicted in Mon-
tana state court of two counts of sexual assault for an incident
involving two girls, ages nine and thirteen. The victims were
UNITED STATES v. WILLIAMS 3179
playing outside their home when Williams approached them
and asked for hugs. They said “no” and ran away, but Wil-
liams, who is 6′4′′, 285 lbs., followed them into their trailer
and cornered them in a bedroom. He then kissed the girls on
the lips and neck and squeezed their buttocks. Williams
received a ten-year sentence for these crimes, but obtained
supervised release in 2001. His supervised release was
revoked in 2002, however, because he skipped sex offender
treatment sessions and obtained employment at a fair fre-
quented by children.
Because of his sexual assault conviction, the district court
in the instant case determined that Williams was subject to a
mandatory minimum prison term of fifteen years for his child
pornography conviction. See 18 U.S.C. § 2252A(b)(1). The
court noted that the Sentencing Guidelines suggested a term
of supervised release of five years to life. See U.S.S.G.
§ 5D1.2(b). The court concluded that a lifetime of supervised
release was necessary in order to protect the community from
Williams. In making this determination, the court relied on
Williams’s prior sexual assault conviction and his apparent
obsession with child rape, as indicated by the pornography he
possessed and his own statements.
During his supervised release, Williams will be required,
among other conditions, to meet regularly with his probation
officer, to allow the officer to visit his home, to participate in
substance abuse and sex offender treatment, to avoid the com-
pany of children, to permit unannounced searches of his com-
puter, and to comply with the sex offender registration
requirements of any state where he resides. The district court
did allow Williams to serve his fifteen-year federal sentence
concurrently with the undischarged portion of his Montana
sexual assault sentence. Williams timely appealed.
3180 UNITED STATES v. WILLIAMS
II
On appeal, Williams admits that a challenge to his fifteen-
year mandatory prison sentence is foreclosed by Ninth Circuit
precedent.1 He also concedes that his sentence of lifetime
supervised release was appropriate under U.S.S.G.
§ 5D1.2(b). He asserts, however, that a life term of supervised
release violates the Eighth Amendment’s prohibition against
“cruel and unusual punishments,” and is substantively unrea-
sonable.
[1] The Supreme Court has held that the Eighth Amend-
ment contains a “narrow proportionality principle.” Graham
v. Florida, 130 S. Ct. 2011, 2021 (2010) (internal quotation
marks omitted). This principle “does not require strict propor-
tionality between crime and sentence.” Id. But it does forbid
“extreme sentences that are grossly disproportionate to the
crime.” Id. Still, it is exceptionally difficult for a criminal to
show that his sentence is unconstitutionally disproportionate.
See United States v. Ewing, 538 U.S. 11, 21 (2003) (noting
that successful Eighth Amendment challenges in noncapital
cases are “exceedingly rare”).
A
[2] There are two ways to succeed on a proportionality
claim. The first challenges the sentence as disproportionate
“given all the circumstances in a particular case.” Graham,
130 S. Ct. at 2021. In assessing the proportionality of particu-
lar sentences, we first compare the gravity of the offense to
the severity of the sentence. Id. at 2022. “In the rare case in
which this threshold comparison leads to an inference of gross
disproportionality the court should then compare the defen-
dant’s sentence with the sentences received by other offenders
1
See United States v. Sinerius, 504 F.3d 737, 744-45 (9th Cir. 2007).
Despite this concession, Williams still objects to the fifteen-year manda-
tory minimum in order to preserve the objection.
UNITED STATES v. WILLIAMS 3181
in the same jurisdiction and with the sentences imposed for
the same crime in other jurisdictions.” Id. (internal quotation
marks omitted).
[3] Williams does not come close to passing this test. Wil-
liams committed very serious crimes: sexually assaulting a
nine-year-old girl, sexually assaulting a thirteen-year-old girl,
and numerous instances of receiving child pornography.
Moreover, although supervised release limits a criminal’s lib-
erty and privacy, it is a punishment far less severe than prison.
Cf. Graham, 130 S. Ct. at 2027 (noting that “life without
parole is the second most severe penalty permitted by law”
because it “deprives the convict of the most basic liberties”
and “means denial of hope” (internal quotation marks omit-
ted)). A lifetime of supervised release is not inappropriate for,
much less grossly disproportionate to, the grave infractions
which Williams committed. Indeed, the Supreme Court has
upheld far tougher sentences for less serious crimes. See
Lockyer v. Andrade, 538 U.S. 63 (2003) (fifty years to life for
stealing $150 worth of videotapes under California’s three-
strikes law); Ewing, 538 U.S. 11 (twenty-five years to life for
the theft of a few golf clubs under California’s three-strikes
law); Harmelin v. Michigan, 501 U.S. 957 (1991) (life with-
out parole for possessing a large quantity of cocaine); Rummel
v. Estelle, 445 U.S. 263 (1980) (life with the possibility of
parole for obtaining money by false pretenses, the defendant’s
third nonviolent felony); Hutto v. Davis, 454 U.S. 370 (1982)
(forty years for possession of marijuana with intent to distrib-
ute and distribution of marijuana).
[4] A life term of supervised release is particularly appro-
priate for sex offenders given their high rate of recidivism.
See H.R. Conf. Rep. No. 107-527, at 2 (noting that “sex
offenders are four times more likely than other violent crimi-
nals to recommit their crimes,” and that their “recidivism rate
[does] not appreciably decline as offenders age”). Williams is
himself a recidivist and has admitted to having rape fantasies,
a factor which the district court correctly found to be indica-
3182 UNITED STATES v. WILLIAMS
tive of future dangerousness. See Rummel, 445 U.S. at 276
(noting that states have an interest “in dealing in a harsher
manner with those who by repeated criminal acts have shown
that they are simply incapable of conforming to the norms of
society”). It is therefore not at all excessive to require Wil-
liams to comply with such supervised release conditions as
attending sex offender treatment, avoiding the company of
children, and meeting regularly with a probation officer. See
United States v. Moriarty, 429 F.3d 1012, 1025 (11th Cir.
2005) (“[A] lifetime term of supervised release is not grossly
disproportionate to [the defendant’s] child pornography
offenses . . . .”).
[5] Accordingly, we conclude that a life term of supervised
release is not unconstitutionally disproportionate given the
circumstances of this case.
B
[6] The second way to mount a proportionality challenge
is to show that an entire class of sentences is unconstitution-
ally disproportionate given the severity of the sentence, the
gravity of the crime, and the type of offender. Until last Term,
the Supreme Court had declared a sentence categorically dis-
proportionate only where the penalty was death. See Kennedy
v. Louisiana, 554 U.S. 407 (2008) (prohibiting the death pen-
alty for nonhomicide crimes); Roper v. Simmons, 543 U.S.
551 (2005) (prohibiting the death penalty for offenders who
committed their crimes before the age of eighteen); Atkins v.
Virginia, 536 U.S. 304 (2002) (prohibiting the death penalty
for the mentally retarded). Last Term, however, the Court
held that juvenile offenders cannot be sentenced to life in
prison without parole for nonhomicide crimes. See Graham,
130 S. Ct. at 2011. In so holding, the Court stressed that life
imprisonment without parole is “the second most severe pen-
alty permitted by law.” Id. at 2027 (internal quotation marks
omitted).
UNITED STATES v. WILLIAMS 3183
[7] When considering categorical challenges to classes of
sentences, courts look to “objective indicia of society’s stan-
dards . . . to determine whether there is a national consensus
against the sentencing practice at issue,” and to the court’s
“own independent judgment.” Id. at 2022 (internal quotation
marks omitted).
[8] Here, “objective indicia” suggest that society is com-
fortable with lifetime sentences of supervised release for sex
offenders, as such sentences are common. According to the
United States Sentencing Commission, in the last five years,
federal courts have sentenced 1875 defendants convicted of
child pornography and child prostitution crimes to lifetime
supervised release. See U.S. Sentencing Comm’n, Federal
Offenders Sentenced to Supervised Release 58-59 (July 2010),
www.ussc.gov/general/20100722_Supervised_Release.pdf.
By way of comparison, in banning the sentence of life without
parole for juvenile nonhomicide offenders, the Supreme Court
noted that there were then just 123 people in the county serv-
ing such sentences. See Graham, 130 S. Ct. at 2024. Further,
the percentage of federal sex offenders receiving life terms of
supervised release is increasing, climbing from 9.3 percent in
2005, to 20.5 percent in 2009. See U.S. Sentencing Comm’n,
supra, at 59.
[9] In exercising “independent judgment,” the Supreme
Court has instructed lower courts to “consider[ ] whether the
challenged sentencing practice serves legitimate penological
goals.” Graham, 130 S. Ct. at 2026. Rehabilitation and inca-
pacitation are central purposes of the criminal justice system,
and they are particularly critical here given the propensity of
sex offenders to strike again. Supervised release can further
the end of rehabilitating sex offenders. For instance, in this
case, the express conditions of supervised release will require
Williams to receive sex offender treatment and to avoid situa-
tions where he may be tempted to offend again. Relatedly,
supervised release helps incapacitate sex offenders by keeping
them under the watchful eye of probation officers who may
3184 UNITED STATES v. WILLIAMS
be able to detect problems before they result in irreparable
harm to innocent children.
[10] Accordingly, we conclude that life terms of super-
vised release are not categorically disproportionate for sex
offenders.
III
Williams also asserts that a life term of supervised release
is substantively unreasonable.
Appellate courts review the substantive reasonableness of
sentences for abuse of discretion, and “must give due defer-
ence to the district court’s decision.” Gall v. United States,
552 U.S. 38, 51 (2007). This standard is particularly deferen-
tial where, as here, the court is reviewing a within-Guidelines
sentence. See Rita v. United States, 551 U.S. 338, 347-48
(2007). This special deference reflects the fact that when a
district court imposes a within-Guidelines sentence, “both the
sentencing judge and the Sentencing Commission will have
reached the same conclusion as to the proper sentence in the
particular case.” Id. at 347. Indeed, “[t]hat double determina-
tion significantly increases the likelihood that the sentence is
a reasonable one.” Id.; see also United States v. Carty, 520
F.3d 984, 994 (9th Cir. 2008) (en banc) (“We recognize that
a Guidelines sentence will usually be reasonable . . . .” (inter-
nal quotation marks omitted)).
[11] Here, lifetime supervised release is reasonable given
the seriousness of Williams’ offenses and the likelihood that
he will offend again. The sexual exploitation and abuse of
children are unspeakably horrendous crimes. Moreover, those
who commit such crimes once are likely to commit them
again. See H.R. Conf. Rep. No. 108-66, at 49-50 (noting that
“the perpetrators of child sexual abuse crimes” often have
“deep-seated aberrant sexual disorders that are not likely to
disappear within a few years of release from prison”).
UNITED STATES v. WILLIAMS 3185
Accordingly, the United States Sentencing Commission rec-
ommends the maximum term of supervised release for sex
offenses such as receipt of child pornography, see U.S.S.G.
§ 5D1.2(b)(2) (Policy Statement), and several courts of
appeals, including our own, have held that life terms of super-
vised release are reasonable where the defendant was con-
victed of receipt or possession of child pornography, see, e.g.,
United States v. Cope, 527 F.3d 944, 952 (9th Cir. 2008);
United States v. Gonzalez, 445 F.3d 815, 820 (5th Cir. 2006).
We conclude that a life term of supervised release is rea-
sonable in this case.
IV
For the foregoing reasons, the district court did not err in
sentencing Williams to a fifteen-year sentence, followed by a
life term of supervised release.
AFFIRMED.