United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 22, 2016 Decided July 18, 2017
No. 12-3032
UNITED STATES OF AMERICA,
APPELLEE
v.
BRANDON J. ROCK,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:11-cr-00376-1)
Jonathan S. Jeffress, Assistant Federal Public Defender,
argued the cause for appellant. With him on the brief was A.J.
Kramer, Federal Public Defender.
Karen P. Seifert, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief was Elizabeth Trosman,
Assistant U.S. Attorney. Lauren R. Bates, Assistant U.S.
Attorney, entered an appearance.
Before: HENDERSON and MILLETT, Circuit Judges, and
SENTELLE, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
SENTELLE.
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SENTELLE, Senior Circuit Judge: Appellant Brandon Rock
was sentenced to 172 months’ imprisonment and 10 years of
supervised release after pleading guilty to distribution of child
pornography. He appeals the length of his sentence and the
conditions of his supervised release. For the reasons stated
below, we affirm his sentence length but vacate two of the
release conditions.
BACKGROUND
Prior to June 2011, appellant Brandon Rock was involved
in a romantic relationship with a woman who had an 11-year-old
daughter. Rock installed a hidden camera in the child’s
bedroom at the woman’s house. Over the course of six months,
Rock captured numerous video segments of the child in her
bedroom, some of which showed the child completely naked
from the front and back. From these videos Rock made still
pornographic images. Subsequently, Rock entered an internet
chat room where, unbeknownst to him, he began communicating
with undercover Metropolitan Police Department Detective
Timothy Palchak. Palchak was posing as an individual who had
access to a fictional 12-year-old girl. Rock told Palchak about
his camera recordings and sent several of the still images to
Palchak. Rock also sent Palchak 11 image files, 6 or 7 of which
showed children in sexually explicit poses. During these chats,
Rock expressed interest in having sex with the fictional 12-year-
old and openly solicited Detective Palchak’s rape of the 12-year-
old by offering to pay Palchak with more images of child
pornography if Palchak would let him watch the assault. On
June 17, 2011, Rock was arrested at his home. His computers
were confiscated. On these computers were more than 100
videos containing child pornography.
Rock pled guilty in district court to one count of distribution
of child pornography, in violation of 18 U.S.C. § 2252(a)(2).
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The parties agreed to a sentencing range of between 144 and 180
months’ imprisonment. Rock was sentenced to 172 months’
imprisonment and 10 years’ supervised release.
Rock now appeals the length of his sentence and the special
conditions attached to his supervised release.
LENGTH OF SENTENCING
First, Rock argues that his sentence was procedurally
unreasonable because the district court expressly relied on the
incorrect premise that child pornography offenses involve a
greater rate of recidivism. According to Rock, the district court,
when deciding on its 172 months’ sentence, relied on a comment
it made during sentencing concerning a higher rate of recidivism
for child pornography offenders. Rock argues that this
proposition articulated by the district court has been disproved
time and again, including in a definitive study conducted by the
United States Sentencing Commission. Citing United States v.
Lemon, 723 F.2d 922, 933 (D.C. Cir. 1983), Rock argues that
where, as here, the district court has relied on incorrect
information in imposing a sentence, the appropriate course is to
remand for re-sentencing. In response, the government
acknowledges that at the close of the sentencing hearing, in
explaining the basis for Rock’s sentence, the court recognized
that the type of crime here “is so hard to know about and so easy
to do again and again.” But, argues the government, the district
court promptly qualified its remark by noting that recidivism is
very hard to predict in this kind of crime. The government
argues that, consequently, the district court’s recidivism
concerns were wholly independent of statistical recidivism data,
and this court should decline to construe the district court’s
single statement as evidence that the district court relied on
recidivism rates at all in imposing Rock’s sentence.
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The government goes on to argue that even if the district
court had so relied, there is no basis to conclude that the district
court relied on misinformation. According to the government,
in its sentencing memorandum the prosecution cited numerous
studies showing that as many as 9.5 percent of child
pornography offenders re-offended within 6 years. And even if
the district court had relied on misinformation, argues the
government, Rock has not shown, or even argued, that such
reliance had any impact on Rock’s sentencing range.
We agree with the government that the district court’s
recidivism comment was only that—a comment—and appears
to have had no influence on the length of imprisonment to which
Rock was sentenced.
Second, Rock argues that his sentence was procedurally
unreasonable because the government falsely represented that
Rock did not attempt sexual abuse of the fictitious 12-year-old
only because he was arrested first. According to Rock, he and
the government disagreed in their sentencing memoranda as to
why Rock did not attempt sexual abuse of the fictitious 12-year-
old. Rock states that his memorandum noted that he ceased
engaging with Detective Palchak before any such abuse could
take place, while the government’s memorandum claimed that
no abuse took place because Rock was arrested first. Relying
principally on United States v. Bigley, 786 F.3d 11, 12 (D.C. Cir.
2015) (per curiam), Rock argues that it was error for the district
court not to resolve this dispute. Furthermore, Rock argues,
there was a significant possibility that the information provided
by the government was false and infected the district court’s
sentencing decision. Rock argues that consequently this court
should remand for re-sentencing. The government agrees that
the district court did not specifically resolve the dispute between
the parties regarding why Rock stopped his contact with
Palchak.
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But the government notes that the district court found that,
regardless of Palchak’s actions, Rock was doing more than just
looking at child pornography; he was in fact victimizing his
girlfriend’s child. Relying principally on Rita v. United States,
551 U.S. 338, 356 (2007), the government argues that although
the district court did not resolve the dispute, the court need not
issue a full opinion, especially where, as here, the court found
Rock’s ultimate argument insufficient. The government further
argues that Rock has not shown that the district court’s failure
to resolve the parties’ disagreement impacted his sentence in any
way. Finally, the government argues that in any event the
district court’s statements at sentencing show that it partly based
Rock’s sentence on his conduct, i.e., secretly taping the child
and then distributing it over the internet.
We agree with the government that under our precedent the
district court need not resolve all disputes between the parties.
See United States v. Locke, 664 F.3d 353, 357-58 (D.C. Cir.
2011). Here, although Rock argues that he forcefully put
forward the reason-for-quitting issue in the district court, we
conclude that a reading of the sentencing hearing transcript
reveals that the sentencing judge did not find the issue relevant
to its reasons for imposition of its sentence.
CONDITIONS OF SUPERVISED RELEASE
At sentencing, the district court imposed several conditions
of supervised release on Rock once he was released from prison.
Rock contends that these conditions are not reasonably related
to his offense conduct and involve a greater deprivation of
liberty than is reasonably necessary under the facts and
circumstances of this case, as required by 18 U.S.C. § 3583(d).
We observe at the outset that with the exception of a condition
concerning “significant romantic relationships,” we review these
conditions for plain error, the defendant not having preserved
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them in the district court. United States v. Love, 593 F.3d 1, 11
(D.C. Cir. 2010). In that context, we further observe that
appellant’s general objection to all conditions was “insufficient”
to preserve the arguments for our review. See id.
One supervised release term prohibits Rock from possessing
or using a computer, or having access to any online service,
without the prior approval of the probation office. Rock argues
that this broad computer/internet restriction is at odds with this
court’s opinion in United States v. Malenya, 736 F.3d 554 (D.C.
Cir. 2013). According to Rock, in that case this court struck
down precisely the same condition imposed here on the ground
that it violated § 3583(d). See id. at 559-61. Rock argues that
such a computer restriction will, among other things,
unreasonably limit his ability to work, and therefore negatively
impact his rehabilitation, a goal of supervised release. The
government counters that this court in United States v. Legg, 713
F.3d 1129, 1132-33 (D.C. Cir. 2013), upheld an almost identical
internet restriction where the defendant used the internet to
facilitate his crime. Furthermore, argues the government, in
United States v. Accardi, 669 F.3d 340, 347-48 (D.C. Cir. 2012),
this court found no plain error in imposing a qualified internet
ban where the defendant used a computer for distribution of
child pornography. We find no plain error in the imposition of
the internet-access condition given that we upheld an analogous
condition in Love, 593 F.3d at 159-61. We also have upheld
conditions analogous or even identical to this repeatedly on
plain error review. See Legg, 713 F.3d at 1131-33; Accardi, 669
F.3d at 348; United States v. Laureys, 653 F.3d 27, 35 (D.C. Cir.
2011); United States v. Sullivan, 451 F.3d 884, 896 (D.D. Cir.
2006).
The Supreme Court’s recent decision in Packingham v.
North Carolina, 137 S. Ct. 1730 (2017), does not make the error
plain because Rock’s condition is imposed as part of his
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supervised-release sentence, and is not a post-custodial
restriction of the sort imposed on Packingham, 137 S. Ct. at
1734, 1736. Cf. United States v. Knights, 534 U.S. 112, 119
(2001) (individuals on probation “‘do not enjoy the absolute
liberty to which every citizen is entitled,’” and “a court granting
probation may impose reasonable conditions that deprive the
offender of some freedoms enjoyed by law-abiding citizens”
(quoting Griffin v. Wisconsin, 483 U.S. 868, 874 (1987))).
Relatedly, another supervised release condition states that
Rock “shall not use a computer, internet capable device, or
similar electronic device to access pornography of any kind.”
Rock argues that this computer pornography restriction is
unnecessary because the district court imposed this condition in
the absence of any evidence demonstrating that viewing adult
pornography would increase Rock’s likelihood of re-offending.
Citing United States v. Loy, 237 F.3d 251 (3d Cir. 2001), Rock
further argues that the condition suffers from being
unconstitutionally vague and overly broad. The government
responds that the district court did not plainly err by imposing
conditions on Rock’s access to pornography. In support of this
argument, the government cites United States v. Laureys, 653
F.3d 27 (D.C. Cir. 2011), and United States v. Love, 593 F.3d 1
(D.C. Cir. 2010), in which, according to the government, this
court found no plain error regarding similar bans on possession
of any pornography in cases involving child pornography
possession and distribution.
Each of the cases cited by the parties involved sentences for
convictions of offenses similar to those in the present case.
Each involved conditions in some ways similar to those imposed
on Rock. And while each of the cases cited by the parties is in
some fashion distinguishable from the present controversy, Love
is the most instructive. In Love, we held overbroad a written
expansion of the district court’s oral sentence which restricted
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a defendant’s access to all pornography, including legal adult
pornography, as well as illegal child pornography. 593 F.3d at
10-11. However, our judgment in that case remanded the
sentence to the district court for restoration of its oral sentence,
which was closer to the judgment imposed in this case. See id.
at 11, 14; see also Laureys, 653 F.3d at 35 (noting the
“connection between pornography and sex crimes”). Moreover,
limiting Rock’s ability to access pornography on the internet is
directly related to the conduct that led to his conviction–namely,
using his computer to distribute child pornography. Based on
the nature of the offense, we cannot agree with Rock that the
ban on possession of pornography on a computer is arbitrary.
Thus, unlike Loy, upon which Rock relies, this condition is
“narrowly tailored and directly related to the goals of protecting
the public and promoting [the defendant’s] rehabilitation.” Cf.
Loy, 237 F.3d at 264 (citation and internal quotation marks
omitted). As in Love, the condition imposed upon Rock is not
vague and is not unconstitutional.
Another imposed condition of supervised release, the only
preserved objection in the district court, under the heading
“Additional Standard Conditions of Supervision,” states that
Rock “shall notify the U.S. Probation Office when he establishes
a significant romantic relationship and then shall inform the
other party of his prior criminal history concerning the sex
offenses.” Rock argues that this condition should be vacated
because such a condition is unconstitutionally vague, not
reasonably related to the goals of sentencing, and constitutes a
greater restriction on liberty than necessary.
In reply, the government argues that the district court did
not abuse its discretion in ordering that Rock notify the
probation office of any significant romantic relationship. The
government contends that the condition reasonably relates to the
facts of the case because Rock expressly used his significant
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romantic relationship with his girlfriend to prey on her daughter.
The government further argues that the condition is not vague
because people of common intelligence understand what
“significant romantic relationship” means. If the court disagrees
with this assessment, the government argues, it should remand
in order to give the district court the opportunity to define the
term significant romantic relationship in a way that would
eliminate the vagueness objection.
We cannot agree with the government’s proposition that
people of common intelligence would share a conclusion as to
whether the affairs of two people constituted a “significant
romantic relationship.” Indeed, we think it likely that in many
cases, the two persons involved might not agree as to whether
they had such a relationship. In short, we agree with Rock that
the vagueness of this condition is problematic. In Malenya, the
same condition was imposed upon a defendant. See 736 F.3d at
558-59; see also id. at 563 n.1 (Kavanaugh, J., dissenting).
Although in that case we did not specifically address this
condition, we vacated all of the conditions imposed because the
district court had not applied the correct standard for imposing
its conditions of supervised release. Id. at 556, 562. We note
that one of our sister circuits has held that such a condition was
unconstitutionally vague. See United States v. Reeves, 591 F.3d
77, 81 (2d Cir. 2010). We agree and order the condition
vacated.
Another condition of supervised release imposed upon Rock
is that he “shall submit to penile plethysmograph testing as
directed by the United States probation office as part of your
sexual offender therapeutic treatment.” Rock contends that
when the district court ordered him to submit to penile
plethysmograph, there was no demonstration of what such
testing actually required or if it is effective, and no discussion of
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why it is necessary.1 Again, the same condition of supervised
release was imposed in Malenya. As noted above, although we
vacated this condition (along with all of the other challenged
release conditions), we did not specifically address it, other than
to hold that the district court did not apply the correct standard
for imposing conditions of supervised release. See Malenya,
736 F.3d at 556, 562. We note, however, that a dissenting judge
would have upheld all the conditions except penile
plethysmograph testing, because in his view the district court
had not erred in its procedure. See id. at 562, 566 (Kavanaugh,
J., dissenting). The dissenter would have stricken the penile
plethysmograph testing condition on the grounds that the
procedure “implicates significant liberty interests and would
require, at a minimum, a more substantial justification than other
typical conditions of supervised release.” Id. at 566. We agree
with the Malenya dissent and order this condition vacated as
well. See United States v. McLaurin, 731 F.3d 258, 260 (2d Cir.
2013) (holding a penile plethysmograph testing condition
unconstitutional as violative of due process).
The parties make further arguments, none of which warrant
separate discussion.
1
The government responds that it is not clear that Rock will
ever be subject to penile plethysmograph testing in 2026 or thereafter,
and his challenge is therefore unripe. But supervisory conditions are
ordinarily ripe for challenge upon imposition, especially when as here
the argument presents a purely legal issue requiring no further factual
development and this court’s ruling will provide Rock with “an
immediate, concrete, and valuable benefit: certainty” regarding whether
he will have to face such testing. VanderKam v. VanderKam, 776 F.3d
883, 889 (D.C. Cir. 2015).
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CONCLUSION
For the reasons stated above, we affirm Rock’s 172 months’
imprisonment. However, we vacate two of the imposed
supervised release conditions: subjection to penile
plethysmograph testing; and notification to the probation office
of any significant romantic relationship in which he may
become involved.
So ordered.