Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
12-6-2004
USA v. Landry
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-1187
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-1187
UNITED STATES OF AMERICA
v.
JERRY LANDRY,
Appellant
ON APPEAL FROM THE UNITED STATES
DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.N.J. Criminal No. 03-cr-00332-1)
District Judge: The Honorable Freda L. Wolfson
Submitted Under Third Circuit L.A.R. 34.1(a)
November 3, 2004
Before: ALITO, BARRY, and FUENTES, Circuit Judges.
(Filed: December 6, 2004)
OPINION OF THE COURT
FUENTES, Circuit Judge.
Appellant Jerry Landry pled guilty to one count of
possession of child pornography and was sentenced accordingly
in the District Court. Among the terms of the sentence is a
three-year term of supervised release to be imposed upon the
completion of his incarceration. On appeal, Landry challenges
for the first time three of the conditions of supervised release: a
blanket restriction on internet use, an order to complete a
substance abuse program, and a prohibition on working with
minors. We find that the District Court did not commit plain
error in imposing these restrictions, and therefore affirm the
sentence.
I.
As we write solely for the parties, our recitation of the
facts will be limited to those necessary to our determination.1
On July 24, 2002, Jerry Landry was pulled over in New Jersey
by the police for driving an unregistered vehicle. After Landry
was unable to produce a driver’s license for the officers, they
discovered through a radio check that his Virginia license was
suspended and also that there existed an outstanding warrant for
his arrest, which had been issued in Maryland. As a result,
1
Most of the facts presented here are taken directly from
Landry’s pre-sentencing report.
2
Landry was arrested. The officers then searched his vehicle and
found a fraudulent Maine driver’s license and some fraudulent
personal and commercial checks.
Shortly after arriving at the police station, Landry waived
his Miranda rights and confessed to creating the fraudulent
materials found in his car using his personal computer. Landry
consented to a search of the motel room at which he was staying
at the time. The police discovered the equipment used to make
the licenses and checks, as well as blank check stock, more
Maine driver’s licenses, and thirteen photographs of minors
engaged in explicit sexual conduct. One of these photographs
depicted salacious conduct involving an adult male and a minor
female. Landry admitted to the police that he knew the girl in
that picture and that he in fact had taken the picture himself. A
subsequent search of the equipment found in Landry’s room
revealed various materials for forgery of identification
documents and checks and an extensive collection of child
pornography, consisting of several hundred movies and images. 2
2
To this day, Landry contends that the pornography was already
contained on hard-drives that he purchased used, and that he simply did
not delete the material (rather than having sought it out or produced it
himself). However suspect that claim may be, the State has not
3
In an interview with the U.S. Secret Service, Landry
explained that he posted child pornography on a website that
provided visitors with the materials in exchange for their
identifying information. He would use the identifying
information to produce fake driver’s licenses.
Eventually, Landry was arrested by federal authorities on
charges relating to child pornography. As part of a plea
agreement, he pled guilty to one count of possession of child
pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). A
pre-sentencing report was prepared and circulated by a U.S.
probation officer, containing the following relevant information:
(1) that Landry admitted to knowing the minor in one of the
photographs found in his motel room and to actually having
taken that picture; (2) that he admitted to prior recreational drug
use as a teenager and to having been ordered to enter a substance
abuse program; (3) that there is a pending charge against him for
possession of paraphernalia associated with crack cocaine; and
(4) that he once attempted suicide through the swallowing of
produced any contradictory evidence and the District Court accepted
Landry’s contention. We need not concern ourselves with the credulity
of the contention, as it does not affect our analysis.
4
prescription drugs. Landry was sentenced according to the
guidelines to 48 months incarceration, three years of supervised
release, and a special assessment of $100. Additionally, the
judge imposed eight conditions applicable to the supervised
release period, which were not objected to at the hearing.
Among these conditions are: (1) that Landry “not possess,
procure, purchase or otherwise obtain access to any form of
computer network, bulletin board, Internet, or exchange format
involving computers unless specifically approved by the
Probation Office”; (2) that he “refrain from the illegal possession
and/or use of drugs,” submit to “testing to ensure compliance,”
and “submit to drug treatment, on an inpatient or outpatient
basis”; and (3) that he “shall not obtain employment or perform
volunteer work which includes, as part of its job/work
description, contact with minor children.” Landry filed timely
notice of appeal of the sentence, and challenges these conditions
in this Court as not supported by an articulated bases from the
judge, overly broad, and not reasonably related to the goals of
sentencing.
II.
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Generally, the imposition of special conditions of
supervised release is reviewed under the deferential abuse of
discretion standard. See United States v. Lee, 315 F.3d 206, 210
(3d Cir. 2003). However, challenges to sentencing conditions
not objected to at the sentencing hearing are reviewed under the
even more deferential plain error standard. United States v.
Warren, 186 F.3d 358, 362 (3d Cir. 1999). Thus, because no
objection was made to the conditions challenged here, we apply
the plain error standard. A plain error is one that (obviously) is
plain and that affects substantial rights. See United States v.
Wolfe, 245 F.3d 257, 261 (3d Cir. 2001). Deviation from a legal
rule satisfies this standard. Id. However, even if a defendant
can establish the existence of plain error, it is within the “sound
discretion of the Court of Appeals . . . whether to correct the
error.” Id. (citing Fed. R. Crim. P. 52(b)). “[A] court should not
exercise that discretion unless the error seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.”
United States v. Olano, 507 U.S. 725, 732 (1993) (quotation
omitted).
As we have noted before, “[a] sentencing judge is given
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wide discretion in imposing supervised release.” United States
v. Crandon, 173 F.3d 122, 127 (3d Cir. 1999).
[A] District Court may order any appropriate
condition to the extent it (1) is reasonably related
to certain factors, including (a) the nature and
circumstances of the offense and the history and
characteristics of the defendant, (b) deterring
further criminal conduct by the defendant, or (c)
protecting the public from further criminal conduct
by the defendant; and (2) involves no greater
deprivation of liberty than is reasonably necessary
for the purposes of deterrence and protection of the
public.
Id. (emphasis added) (citing 18 U.S.C. §§ 3583(d), 3553(a)).
“[T]he courts of appeals have consistently required district
courts to set forth factual findings to justify special probation
conditions.” Warren, 186 F.3d at 362, 366 (discussing
conditions on “probation or supervised release”). However, “if
the district court fails to set forth its findings and justifications,”
“the record below must contain evidence that would support the
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imposition of a special condition.” Id. at 366-67. “[A] district
court should engage in an inquiry which results in findings on
the record to justify that condition, and to indicate how that
condition meets the statutory purposes of probation.” Id. at 367.
“We will affirm only if the district court has made such findings,
or we can determine from the record a sufficient evidentiary
basis for the [condition].” Id. A district court may adopt the
factual findings in a pre-sentencing report in order to provide a
sufficient record for review on appeal. See, e.g., United States v.
Hallman, 23 F.3d 821, 827-28 (3d Cir. 1994).
III.
A. Bases for the Conditions
Landry first contends that the District Court failed to state
bases for any of the three challenges conditions and that the
record is devoid of any such basis for their imposition. Even if
we were to agree with the former contention, we find that the
pre-sentencing report, explicitly adopted by the District Court,
provides ample support for the conditions. The internet
restriction is supported by the fact that Landry used that medium
to trade child pornography for identification information. Thus,
8
the internet facilitated his creation of forged documents and
opened an avenue up for him to disseminate child pornography,
potentially including materials that he himself created.
Similarly, the work restriction finds support in his apparent
attraction to minors and willingness to exploit them for his own
benefit. Admittedly, the drug treatment order finds less robust
support in the record, but his teenage substance abuse and more
recent substance-based suicide attempt provide sufficient
support, given the extraordinarily deferential standard of review
that we must apply.
B. Overbreadth of the Internet Restriction
Landry argues that the condition restricting his use of the
internet and similar network-based communication systems is
overly broad, as it prevents him from accessing email, news,
weather, and other important information. He relies heavily on
our decision in United States v. Freeman, 316 F.3d 386 (3d Cir.
2003), in which we found that a similar restriction “involve[d] a
greater deprivation of liberty than is reasonably necessary to
deter future criminal conduct and to protect the public.” Id. at
392. We noted that, because Freeman had only downloaded
9
child pornography (not to downplay the wrongfulness of such
action, of course), “[t]here is no need to cut off Freeman’s access
to email or benign internet usage when a more focused
restriction, limited to pornography sites and images, can be
enforced by unannounced inspections of material stored on
Freeman’s hard drive or removable disks.” Id. We
distinguished our decision in Crandon, in which a similar
restriction was upheld, because “the defendant in Crandon used
the internet to contact young children and solicit inappropriate
sexual contact with them.” Freeman, 316 F.3d at 392.
We first note that the restriction here is somewhat more
narrow than that in Freeman, as Landry is not barred from using
a stand-alone computer.3 Moreover, Freeman can be
characterized as a case involving a simple “consumer” of child
pornography, with Crandon instead concerning someone directly
involved in the exploitation of children. Under that dichotomy,
it is not unreasonable to place Landry in the latter category, as he
not only traded in the pornographic material, but in fact created
3
It is also worth noting that the restriction here allows Landry
access to the internet if he receives permission from the Probation
Office. However, this fact does not distinguish this case from Freeman
or Crandon, as similar allowances were made in those cases.
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some of it. Additionally, he used the internet to acquire
information that he used in his production of forged documents.
We are therefore satisfied that the imposition of the internet
restriction here does not constitute plain error that must be
corrected.
C. The Relationship to the Goals of Sentencing
Finally, Landry challenges the drug and work-related
conditions as not reasonably related to the goals of sentencing.
He cites our decision in United States v. Loy, 191 F.3d 360 (3d
Cir. 1999), for the proposition that “the conditions of supervised
release must be reasonably related to the goals of deterrence,
protection of the public and rehabilitation of the defendant.”
Id. at 371. Earlier in that opinion, we cited “the need for the
sentence imposed to deter future criminal conduct, protect the
public, and provide the defendant with necessary training,
medical care, or other correctional treatment.” Id. at 370 (citing
18 U.S.C. § 3553(a)(1) & (2)).
Given the evidence we cited earlier as a basis for the drug
restriction and the legitimacy of the goal of rehabilitation, we
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cannot say that the District Court committed plain error in
imposing the condition. We note again that the record may not
support the conclusion that Landry has a serious drug problem,
but it also does not compel the conclusion that he completely
lacks “any substance abuse problem.” See United States v.
Modena, 302 F.3d 626, 636 (6th Cir. 2002) (rejecting a similar
drug treatment condition as an abuse of discretion because “the
PSR specifically states that the probation officer ‘has no
information pertaining to substance abuse/use pertaining to Mr.
Modena’”). Similarly, our stated basis for the work restriction
provides a reasonable relationship between the restriction and
the goal of protecting the public, as Landry’s previous
exploitation of at least one minor suggests that he might revert to
similar depravity if regularly exposed to other minors.
IV.
For the reasons set forth above, we find that the District
Court did not commit plain error meriting intervention by this
Court in imposing the supervised release conditions challenged
by Landry. Accordingly, the sentence dispensed by the District
Court is affirmed.
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