United States v. Miller

Case: 10-50500 Document: 00511694504 Page: 1 Date Filed: 12/13/2011

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
December 13, 2011

No. 10-50500 Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,

Plaintiff–Appellee,
v.

AUBREY RUFFIN MILLER,

Defendant–Appellant.

Appeal from the United States District Court
for the Western District of Texas

Before DAVIS, PRADO, and OWEN, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
Aubrey Miller pled guilty to one count of transportation of child
pornography in violation of 18 U.S.C. § 2252(a)(1). The district court sentenced
Miller to 220 months of imprisonment (18 years and 4 months), a term within
the advisory Guidelines range and less than the statutory maximum of 240
months of imprisonment. The district court also imposed a twenty-five-year
term of supervised release. Miller appeals his sentence and elements of his
supervised release. We affirm.
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I
A grand jury indicted Miller on three counts. He ultimately pled guilty to
Count One of the indictment: the knowing transportation or shipment of child
pornography in violation of 18 U.S.C. § 2252(a)(1). The indictment described
some of the materials found in Miller’s possession. One example, among many,
was a “video file depicting a nude minor female being anally raped by a nude
adult male while a nude adult female holds the minor female in place.” As part
of his plea, Miller affirmed that the descriptions of child pornography set forth
in the indictment were accurate.
For the purposes of Miller’s Sentencing Guidelines calculation, he was
attributed with possession of 495 images—45 still photos and 6 videos that were
deemed under the Guidelines to contain 75 images each. Miller’s offense level
was determined to be 36 with a criminal history category of I, leading to an
advisory Guidelines range of 188 to 235 months of imprisonment. Miller does
not dispute the calculation of the Guidelines range.
Many of the facts relevant to this appeal are drawn from the presentence
investigation report. Miller did not object to that report, nor does he contest the
accuracy of its factual content on appeal. The report reflects that an
investigation of an online service that provided child pornography to its paid
subscribers led federal and local law enforcement to Miller. Investigators
discovered the child pornography for which Miller has been convicted of
transporting or shipping. Images were recovered both from his computer and
from his cellular phone. When confronted, Miller told investigators that he had
viewed child pornography, which he defined as “like adult, but using children as
sex slaves.”
The investigation revealed other attempts by Miller to acquire child
pornography. Forensic investigators discovered Google searches on Miller’s
computer that included search terms such as “illegal child porn” and searches

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for six-year-old girls engaged in sexual activity. Miller admitted to investigators
that he engaged in online “chats” with individuals he believed to be underage
girls. Miller indicated to an investigator that a photo of one such girl, “Molly,”
could be found on his computer and that his computer password was “pedophile.”
In a “chat” with “Molly” recovered by forensic investigators, “Molly” indicated
that she had previously sent Miller photos of herself at his request. When
“Molly” asked which photo Miller preferred, he responded “‘all an the naked ones
[sic].’”
The investigation revealed that Miller attempted to trade child
pornography he possessed for child pornography possessed by others. He sent
one such request by email, with the subject line “I Love being a PEDOPHILE,”
in which Miller requested movies in exchange for six videos that he sent. Miller
also admitted to using a web camera to communicate with a juvenile female on
two occasions.
Miller admitted to investigators that he had previously been investigated
for possession of child pornography while he served in the United States Navy.
Miller admitted that his military career ended because he had used military
computers to search for child pornography and to “chat” with underage females.
While a member of the Navy, he had memberships to two commercial child
pornography websites. He had acknowledged to Navy investigators that he used
government computers to search and download adult and child pornography.
The investigation that led to the present conviction also revealed that a
complaint had been filed with the National Center for Exploited Children
indicating that an email address on Miller’s computer had been used to solicit
nude photographs from an individual posing online as a fourteen-year-old girl.
In the messages, the emailer stated to the girl that he had previously engaged
in sexual conduct with his eight-year-old niece. Miller notes on appeal that he
has no nieces, and therefore contends that this “likely was a fantasy.”

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Letters were also recovered in connection with the naval investigation.
One of those letters led law enforcement to a girl who indicated that she had
communicated with Miller when she was fourteen years old and that he was
aware of her age. Miller asked her to send him a nude photo of her
masturbating. Notes from the naval investigation also indicate that Miller
interacted with a fourteen-year-old girl who said that Miller had requested nude
photos, solicited her to meet in person, and told her that he enjoyed having sex
with younger girls. Miller informed naval investigators that he was aroused
looking at girls between the ages of ten and fifteen, and expressed a fear to the
investigators that if not stopped he would become a “sexual predator” or a “child
rapist.” Miller received an Other Than Honorable Discharge from the Navy as
a result of the investigation, though criminal charges were dismissed for a
violation of the Speedy Trial Act.
The presentence investigation report suggests that Miller had a difficult
childhood and had issues as an adult. With regard to his childhood, Miller
stated that his mother suffers from bi-polar disorder, and Miller’s mother
believed that he may have been sexually abused as a child. With regard to
Miller’s potential to harm others, Miller’s mother indicated that she believes
Miller has anger issues and that he has been violent in the past, sentiments
echoed by his aunt who stated that Miller often has serious and destructive
outbursts. Both indicated that they believe Miller is a threat to others,
especially children.
The presentence investigation report indicates that Miller viewed adult
pornography before he commenced viewing child pornography. That report also
reflects that Miller frequently accessed phone sex providers, in some cases
amassing charges in excess of $100 per call.
Miller told the court at sentencing that while he was incarcerated awaiting
sentencing, he had been raped. He asserted that this experience had helped him

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to empathize with the victims of child pornography and that now, the thought
of viewing child pornography made him feel “sick to think of being a spectator”
of such images.
Miller asked the district court to impose a sentence below the advisory
Guidelines sentencing range of 188 to 235 months of imprisonment. The district
court rejected that request and chose a sentence of 220 months, which Miller
challenges as unreasonable. The district court also imposed a twenty-five-year
term of supervised release, with conditions that included restrictions on
possession of sexually stimulating materials, computer and Internet use, and use
of photographic equipment and devices.
Miller appeals, contending his prison sentence is longer than necessary to
satisfy the sentencing goals set forth in 18 U.S.C. § 3553(a) and that certain
restrictions imposed as part of his supervised release should be vacated. We
have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291.
II
Miller contends that his sentence of 220 months of imprisonment is
substantively unreasonable. He voiced this objection in the district court, and
we therefore review for an abuse of discretion.1 Our “review is highly deferential
as the sentencing judge is in a superior position to find facts and judge their
import under [18 U.S.C.] § 3553(a) with respect to a particular defendant.”2
Congress has directed that in selecting a sentence, a district “court shall
impose a sentence sufficient, but not greater than necessary, to comply with the

1
United States v. Key, 599 F.3d 469, 473 (5th Cir. 2010) (citing Gall v. United States,
552 U.S. 38, 51 (2007)), cert. denied, 131 S. Ct. 997 (2011).
2
United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008) (citing Gall,
552 U.S. at 51).

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purposes set forth in paragraph (2)” of 18 U.S.C. § 3553(a).3 Sentencing courts
are further directed to consider “the nature and circumstances of the offense and
the history and characteristics of the defendant.”4
The arguments in support of Miller’s contention that the length of his
sentence is substantively unreasonable are multi-faceted. He first asserts that
because the Sentencing Guidelines applicable to child pornography offenses are
not based on empirical sentencing data, they are seriously flawed and can lead
to unreasonable and disproportionate prison sentences. Miller acknowledges
that our court has held that there is a rebuttable presumption that a sentence
within the applicable advisory Guidelines range is reasonable, even if the
applicable Guideline is not empirically based.5 Rebutting this presumption
requires a “showing that the sentence does not account for a factor that should

3
18 U.S.C. § 3553(a). Those purposes are:

(2) the need for the sentence imposed--

(A) to reflect the seriousness of the offense, to promote respect for
the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or
vocational training, medical care, or other correctional treatment in the
most effective manner . . . .

Id. § 3553(a)(2).
4
Id. § 3553(a)(1).
5
See United States v. Duarte, 569 F.3d 528, 529 (5th Cir. 2009) (noting that “numerous
panels of this court have faced and rejected arguments” that the presumption of
reasonableness should be removed as to “non-empirically-grounded provisions of the
Guidelines”); United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009)
(holding that, even when a Guideline is not empirically based, “we will presume a sentence
within the current version of the Guidelines to be reasonable, and the defendant must rebut
that presumption to demonstrate substantive unreasonableness”).

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receive significant weight, [the sentence] gives significant weight to an
irrelevant or improper factor, or it represents a clear error of judgment in
balancing sentencing factors.”6 Miller cites United States v. Dorvee, a decision
of the Second Circuit, which does not apply such a presumption.7
The defendant in Dorvee was convicted of distributing child pornography
in violation of 18 U.S.C. § 2252(a)(2)(A), and sentenced to 240 months of
imprisonment, less 194 days served for a related state offense.8 In concluding
that this sentence was substantively unreasonable, the Second Circuit explained
that it was “troubled by the district court’s apparent assumption that Dorvee
was likely to actually sexually assault a child, a view unsupported by the record
evidence,” noting that there was “expert record evidence” contrary to this
assumption.9
As a factual matter, the present case is distinguishable from Dorvee.
Miller admitted three years before he was indicted for transporting child
pornography that he was sexually aroused by girls between the ages of 10 and
15. Miller told officers investigating the child pornography offense that if he was
not “stopped,” he feared that he would become a sexual predator or child rapist,
a fact that the district court expressly noted in the course of arriving at the
sentence imposed.
But these factual differences do not address the core of Miller’s argument
regarding the lack of an empirical basis for the child pornography sentencing

6
United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009) (citing United States v.
Nikonova, 480 F.3d 371, 376 (5th Cir. 2007)).
7
616 F.3d 174, 183 (2d Cir. 2010) (“Dorvee’s sentence was a within-Guidelines
sentence. However, we do not presume that such sentences are reasonable when we review
them substantively.”) (citing United States v. Fernandez, 443 F.3d 19, 27 (2d Cir. 2006)).
8
Id. at 176.
9
Id. at 183.

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Guidelines or the Second Circuit’s assessment of those Guidelines as
“irrational[].”10 The Second Circuit discussed at considerable length in Dorvee
the history of the sentencing Guidelines that apply to child pornography offenses
and the role of Congress in that history.11 The Second Circuit surveyed writings
that have expressed disapproval of these Guidelines and congressional actions
regarding them.12 That court was highly critical of the child pornography
Guidelines, concluding that “[a]n ordinary first-time offender is therefore likely
to qualify for a sentence of at least 168 to 210 months, rapidly approaching the
statutory maximum, based solely on sentencing enhancements that are all but
inherent to the crime of conviction.”13 The Second Circuit asserted that
“adherence to the Guidelines results in virtually no distinction between the
sentences for defendants like Dorvee, and the sentences for the most dangerous
offenders who, for example, distribute child pornography for pecuniary gain and
who fall in higher criminal history categories.”14 That court declared, “[t]his
result is fundamentally incompatible with § 3553(a).”15 The Second Circuit also
concluded that if Dorvee had “actually engaged in sexual conduct with a minor,
his applicable Guidelines range could have been considerably lower,” and
compared a hypothetical Guidelines range of 151 to 188 months of imprisonment
for an offense involving actual sexual contact with a child to Dorvee’s within-
Guidelines sentence of 233 months of imprisonment for distributing child

10
Id. at 187 (“The irrationality in § 2G2.2 is easily illustrated by two examples.”).
11
Id. at 184-186.
12
Id.
13
Id. at 186.
14
Id. at 187.
15
Id.

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pornography.16 The Second Circuit then held that “it would be manifestly unjust
to let Dorvee’s sentence stand,” and “conclude[d] that Dorvee’s sentence was
substantively unreasonable . . . .”17
With great respect, we do not agree with our sister court’s reasoning. Our
circuit has not followed the course that the Second Circuit has charted with
respect to sentencing Guidelines that are not based on empirical data.18
Empirically based or not, the Guidelines remain the Guidelines. It is for the
Commission to alter or amend them.19 The Supreme Court made clear in
Kimbrough v. United States that “[a] district judge must include the Guidelines
range in the array of factors warranting consideration,”20 even if the Commission
did not use an empirical approach in developing sentences for the particular
offense.21 Accordingly, we will not reject a Guidelines provision as
“unreasonable” or “irrational” simply because it is not based on empirical data
and even if it leads to some disparities in sentencing. The advisory Guidelines
sentencing range remains a factor for district courts to consider in arriving upon
a sentence.22
However, our circuit has emphasized that we do not blindly approve a
within-Guidelines sentence, even though it carries a rebuttable presumption of
reasonableness. We continue to review a sentence that is within the applicable

16
Id.
17
Id. at 188.
18
See United States v. Duarte, 569 F.3d 528, 529 (5th Cir. 2009); United States v.
Mondragon-Santiago, 564 F.3d 357, 367 (5th Cir. 2009).
19
See Mondragon-Santiago, 564 F.3d at 367.
20
552 U.S. 85, 91 (2007).
21
See id. at 96.
22
Id. at 91.

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Guidelines range for reasonableness based on the statutory factors and
considerations as applied to the record in a particular case, with due deference
to the district court’s assessment and weighing of these considerations in light
of the particular defendant and specific facts before the sentencing court.23
In the present case, the district court expressly considered and rejected
reasoning similar to that in Dorvee to the effect that those who “merely” possess
or transport child pornography should not receive the same or more severe
sentences than those who have actual sexual contact with a child. The district
court explained at Miller’s sentencing hearing:
I will address one factor that I think should not be lost here,
but that often gets lost - - gets lost when we get into scholarly
discussions or reviewing scholarly reports on the guidelines, and
that is the argument that this defendant would not have as high of
a guideline range if he had had a physical encounter with an
underage person. The difference between that in this court's
opinion and what is presented in a case like this is that we have
numerous victims in a case like this, not one victim. Every image
of a child, every image of a nonadult engaged in any type of sexual
activity or any type of pose without clothing or any type of
exploitation constitutes an additional case of victimizing a child.
Without a demand for that type of information and that type of
viewing from persons like this defendant, we don't know how many
child abuse cases we could prevent. And as long as there is a
demand to purchase images of child pornography, there is going to
be an unending stream of child abuse of people - - children who are
forced into these roles.

So although I do not take issue with the writing about what
has happened to the guidelines, I think it begs the question of what
is at stake here in the statutory sentencing scheme and the fact that
this conduct is illegal and the concern that the Congress of the
United States and the courts of this nation and the public of this
nation place on it, and that is, every image has a child who has been

23
See United States v. Murray, 648 F.3d 251, 257-58 (5th Cir. 2011); United States v.
Duarte, 569 F.3d 528, 530-31 (5th Cir. 2009); Unites States v. Lemus-Gonzalez, 563 F.3d 88,
94-95 (5th Cir. 2009).

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exploited and abused, and that is the concern I have. It is the
concern that I have when people are engaged in serially doing this,
the effect it has on children throughout the world and the effect it
has on their future lives.
The district court considered the policies underpinning the child
pornography Guidelines. It concluded that the sentence imposed, 220 months
of imprisonment, was not greater than necessary to accomplish the purposes set
forth in 18 U.S.C. § 3553. The district court made clear that the Guidelines
advisory range was but one factor in its selection of a sentence. In fact, the
district court stated at the sentencing hearing, after a lengthy analysis of
Miller’s conduct and history, that “although I am going to render a sentence that
is within the guideline range, it is within the guideline range solely by
happenstance.”
Miller attempts to persuade us that his sentence is unreasonable by
pointing to statistics collected by the Sentencing Commission in the 2009
SOURCEBOOK OF FEDERAL SENTENCING STATISTICS. He argues that “district
courts in over 600 cases concluded that the advisory guideline range for child
pornography offenses was greater than necessary to meet §3553(a)’s sentencing
goals.” The table of information to which Miller refers reflects that there were
609 sentences below the Guidelines range out of 1,606 sentences (approximately
38%).24 The same table reflects that 717 of these 1,606 sentences were within
the Guidelines range (approximately 45%).25 But appellate courts are not tasked
with applying statistical analyses to assess the reasonableness of a particular

24
U.S. SENTENCING COMM’N, 2009 SOURCEBOOK OF FEDERAL SENTENCING STATISTICS
78-81 tbl. 28 (FY 2009).
25
Id.

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sentence in a particular case.26 Nor are district courts.27 While sentences
imposed by other courts may be a consideration for a district court, such
information does not set a median, floor, or ceiling. The Supreme Court has
explained how district courts are to select a sentence, within the parameters
given by Congress in § 3553, and appellate courts are to review that
determination for reasonableness.28 The sentence the district court imposed
upon Miller was not rendered unreasonable by the statistics on which Miller
relies.
Once again attacking the policies and rationale that underpin the
Guidelines, Miller next argues that his offense was “typical” and “[y]et, his
offense level was extremely high, in part because the child pornography
guideline provides offense level enhancements, ‘some quite extreme,’ that are
based on ‘circumstances that appear in nearly every child pornography case.’”29
Miller assails enhancements that increase the offense level: for use of the
Internet,30 based on the number of images,31 if the pornographic material
involved a prepubescent minor who had not attained the age of 12 years,32 if the
material portrays sadistic or masochistic conduct or other depictions of

26
See Duarte, 569 F.3d at 530.
27
Id.
28
See Gall v. United States, 552 U.S. 38, 49-51 (2007).
29
Miller quotes United States v. Beiermann, 599 F. Supp. 2d 1087, 1105 (N.D. Iowa
2009).
30
U.S. SENTENCING GUIDE MANUAL § 2G2.2(b)(6) (2009).
31
Id. § 2G2.2(b)(7).
32
Id. § 2G2.2(b)(2).

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violence,33 and for distributing material in exchange for other images.34 He also
takes issue with the Guidelines directive that each video or movie is considered
to contain 75 images.35 Each of these Guideline provisions applied in Miller’s
case and increased his advisory sentencing range. He does not contend that the
enhancements and image calculations should not have been applied but rather
that since many of these enhancements are applied in a large percentage of cases
involving child pornography, sentences are “‘illogically skew[ed],’” he asserts,
“‘for even average defendants.’”36
We disagree for reasons that include those discussed above. The
Guidelines remain the Guidelines, and district courts must take them into
account. But we also disagree that it is “illogical” to differentiate between
defendants who view or distribute images of prepubescent children being raped
and sodomized, as one example under the Guidelines, and those defendants who
view or distribute pornography that depicts minors who are not prepubescent
engaged in sexual activity that is not violent or sadistic. We reject the view that
because there are many defendants who view images of children under the age
of 12 being raped and sodomized, and because there are many defendants who
obtain hundreds of pornographic images of children, the terms of imprisonment
should be reduced for all who receive or transport child pornography, regardless
of the content of those images and regardless of the number of the images. The
Guidelines treat differing behavior differently, and in our view, that
differentiation is not unreasonable.

33
Id. § 2G2.2(b)(4).
34
Id. § 2G2.2(b)(3)(B) or (F).
35
Id. § 2G2.2, Commentary n.4(B)(ii).
36
Miller quotes United States v. Beiermann, 599 F. Supp. 2d 1087, 1105 (N.D. Iowa
2009).

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The district court in this case was cognizant of the undeniable fact that
real children are actually being abused and violated when pornographic images
are made. Without a market for such images, and without a strong appetite for
more and more images exhibited by Miller and similarly situated defendants,
there would be far fewer children who are injured and criminally assaulted in
this way. If a handful of pornographic images taken twenty years ago were
sufficient to satisfy the perverse desires of those who possess and traffic in child
pornography, we would not have the huge industry that exists internationally
today. No other child would be raped or sodomized or otherwise violated to
produce pornographic images. Tragically, the reality is that there is a huge
demand for “fresh” faces and images.
There is a rational basis for enhancing punishment based not only on the
number of images amassed but also on the degree of abuse or molestation of
children that the images depict. All acts depicted in child pornography are
despicable, but that does not mean that punishment for possessing or
transporting child pornography should be uniform, irrespective of the acts
depicted. Some defendants traffic in images of children that are pornographic
but not violent or sadistic. Other defendants seek out depictions that are violent
and sadistic. The enhancements applicable under the Guidelines do not
unreasonably impose increases in offense levels for each of the categories
identified by Miller. A sentence is not unreasonable simply because it applied
these enhancements to arrive upon the properly calculated advisory Guidelines
range.
Miller contends that punishment for his offense should have been
mitigated by his personal characteristics and history, including his difficult
childhood, his service in the Navy (prior to his other-than-honorable discharge),
and the empathy for child pornography victims and remorse he attained after he
was raped in prison. The district court considered each of these factors. Miller’s

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disagreement is with the weight that the court gave to each. The district court
did not fail to give sufficient weight to Miller’s characteristics and history.
We have included in the margin the reasons, in their entirety, that the
district court gave for selecting a sentence of 220 months of imprisonment.37

37
The district court stated at sentencing:

I don’t have a real concern about the guidelines in this case. I look at the
facts of this case and I see that the statutory range of punishment is 5 to 20
years. The guidelines are the guidelines and since Kimbrough and Gall,
beginning with Booker, the guidelines are but one factor that this Court must
consider in Title 18 of United States Code, Section 3553, to determine a
sentence that is sufficient but not greater than necessary to comply with all of
the factors set forth in 3553, one of which is the guidelines.

As I have stated, the correct guideline range in my opinion is as
computed by the Probation Department, which is 188 to 235 months. The
statutory range is 60 months to 240 months, as I have said. It is with that that
I start in this case, this particular case, trying to determine what the
appropriate sentence would be.

I will address one factor that I think should not be lost here, but that
often gets lost - - gets lost when we get into scholarly discussions or reviewing
scholarly reports on the guidelines, and that is the argument that this
defendant would not have as high of a guideline range if he had had a physical
encounter with an underage person. The difference between that in this court’s
opinion and what is presented in a case like this is that we have numerous
victims in a case like this, not one victim. Every image of a child, every image
of a nonadult engaged in any type of sexual activity or any type of pose without
clothing or any type of exploitation constitutes an additional case of victimizing
a child. Without a demand for that type of information and that type of viewing
from persons like this defendant, we don’t know how many child abuse cases we
could prevent. And as long as there is a demand to purchase images of child
pornography, there is going to be an unending stream of child abuse of people
- - children who are forced into these roles.

So although I do not take issue with the writing about what has
happened to the guidelines, I think it begs the question of what is at stake here
in the statutory sentencing scheme and the fact that this conduct is illegal and
the concern that the Congress of the United States and the courts of this nation
and the public of this nation place on it, and that is, every image has a child
who has been exploited and abused, and that is the concern I have. It is the
concern that I have when people are engaged in serially doing this, the effect it
has on children throughout the world and the effect it has on their future lives.

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In distilling a little bit from the presentence investigation report, which
is lengthy and I think was very thorough here, let me tell you what impacts me
in determining what a sentence that is sufficient but not greater than necessary
to comply with the purposes of Title 18, Section 3553, might be. Mr. Miller is
a 31-year-old male who has pleaded guilty in this case. He paid for access to
pay for - - to pay for access to a child pornography Website known as CPT. As
a member, he purchased membership packages where he could view and
download images that contained minors. They included prepubescents engaged
in sexually explicit conduct.

At the time of his arrest, Miller admitted to the agents that he was in
possession of an Acer laptop computer that he used to download child
pornography. Subsequent forensic exams confirmed that the computer’s hard
drive contained six videos and 37 pictures which depicted child pornography,
including prepubescents engaged in sexually explicit conduct. I don’t know how
many minors were being abused totally in those pictures. The material
portrayed multiple images that depicted sadistic conduct. An examination also
confirmed that Miller had conducted Google searches using terms like “illegal
child porn, underage girls naked and masturbating six-year-old girls.”

Using his personal email account, he sent an email that contained an
attachment to an individual known as 1Garth@live.co.UK. Located in the
attachment were the same videos that were located during the forensic
examination that contained child pornography. Now, that may not seem like
much, but when you exchange these things, when you get involved in a network
with these things, it leads to the producers of these type of videos wanting more
and more and different productions to sell to people who have subscribed to this
group and to allow them to exchange and more children become abused that
way.

Additionally, after Miller’s arrest, the case agents in this case was [sic]
given the defendant’s cellular telephone that contained additional images of
child pornography, including bondage. A review of all of these images confirmed
that they contained multiple prepubescent females, many under age 5, engaged
in sexual conduct with adults, males and females.

Further examination on his computer reviewed [sic] chat logs where he
engaged in sexually explicit chats with others to include what he presumed to
be an underage female. During his chat, knowing it was sexually explicit, he
requested that the female provide him with additional naked pictures of herself.
In another chat, Miller attempted to barter child pornography images with
another by sending the same six videos.

At the time of his arrest, Miller admitted to being in possession of child
pornography. He also admitted that he had used his work computer while in
the Navy and the computer - - and he accessed child pornography. During the

16
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No. 10-50500

presentence interview, he admitted to being in possession as well as
transporting child pornography to individuals he met at online chatrooms.

Although his offense level was reduced by three levels for accepting
responsibility, and I have accepted that, so Mr. Ibbotson, you need not worry
about what you provided with the Court with regard to the guidelines as
affecting his acceptance of responsibility, I have no doubt he has accepted
responsibility. But I have many concerns regarding him, Mr. Miller, and his
risk around the community. He has a prior history of approaching and
engaging young females, as well as an obsession for making phone sex calls and
viewing pornography, including child pornography, to the point that it’s
interfered with his employment.

In 2007, he established to maintain contact with a 14-year-old female in
Lometa, Texas. During their conversation, he was often sexually explicit and
once asked the female to travel to meet him in person.

Also a concern is the fact that Mr. Miller, in my opinion, demonstrates
how a social behavior and how a social attitude since, according to Dr. Tucker
with Austin Neuropsychology, has a history of assaultive and threatening
behavior.

According to family members, Miller has displayed serious and
destructive outbursts. By his own admission, 2007, Miller sexually aroused a
girl between the ages of 10 and 15 and indicated that if not stopped he would
become a sexual predator or a child rapist. These things are disturbing to this
Court.

During the presentence interview, however, and his admission
statement, Miller refers to himself as a spectator of child pornography,
indicating that he’s no longer sexually aroused or interested in doing child
pornography.

The statement, though, is not only offering superficial recognition of his
what I consider deviant sexual interest, but he is denying his interest and
fantasies, and I have questions whether treatment would produce anything in
the near term.

That is what I consider when I look at the full range of statutory
punishment. And although I am going to render a sentence that is within the
guideline range, it is within the guideline range solely by happenstance. I will
render a sentence that I believe is justified under Title 18 of United States
Code, Section 3553, it is a sentence that is sufficient but not greater than
necessary to comply with the purposes of that statute and is a sentence which
for the reasons that I have just stated takes into account all of the facts and
circumstances of this defendant’s background and the crime for which he has

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No. 10-50500

The district court did not fail to account for a factor that should have received
significant weight, and the sentence does not represent a clear error of judgment
in balancing sentencing factors.
Even were Miller’s sentence outside the properly calculated advisory
Guidelines range, which it is not, we must give due deference to the discretion
sentencing courts possess following the Supreme Court’s decision in Gall v.
United States.38 In United States v. Rowan, the defendant was convicted of
possession of child pornography, and the applicable Guidelines range was 46-57
months of imprisonment.39 The district court sentenced the defendant to 60
months of probation.40 We affirmed, noting that the district court “meticulously
considered the § 3553(a) factors.”41
In the present case, the district court considered the statutory factors, and
the sentence imposed was not unreasonable.
III
The district court imposed certain conditions that are to apply during the
twenty-five-year term of supervised release that is to commence when Miller is
released from prison. One of these pertains to computer and Internet access:
[The defendant] shall not use any computer at any location,
whether or not at [his] place of employment, residence, or elsewhere,
without the prior written permission of the probation officer. [The

been convicted and further takes into account all of the Title 18, Section 3553
factors.

Whether it is a guideline sentence or whether it is an equitable sentence
under Title 18 of United States Code, Section 3553, it is what I believe to be a
sentence that is sufficient but not greater than necessary to impose in this case.
38
552 U.S. 38, 51 (2007).
39
530 F.3d 379, 380 (5th Cir. 2008).
40
Id.
41
Id. at 381.

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No. 10-50500

defendant] shall not possess or use any phone or any other
electronic device that allows access to the internet without prior
written permission from [the] probation officer.

Miller objected to this restriction at the time he was sentenced on the basis
that it did not reasonably relate to the statutory criteria set forth in 18 U.S.C.
§§ 3553(a) or 3583, and was a greater restriction on his liberty than necessary.
He carries these complaints forward on appeal, and we apply an abuse of
discretion standard of review.42
Pursuant to 18 U.S.C. § 3583, supervised release for a violation of 18
U.S.C. § 2252—to which Miller pled guilty—is authorized to be “any term of
years not less than 5, or life.”43 We have explained that § 3583 and § 3553
require that supervised release conditions be “reasonably related” to “(1) the
nature and characteristics of the offense and the history and characteristics of
the defendant, (2) the deterrence of criminal conduct, (3) the protection of the
public from further crimes of the defendant, and (4) the provision of needed
educational or vocational training, medical care, or other correctional treatment
to the defendant.”44 A condition of supervised release must be related to “‘any’”
of these factors, “‘not necessarily all of them.’”45 The condition “cannot impose
any ‘greater deprivation of liberty than is reasonably necessary.’”46 The
condition should take into consideration the policy statements issued by the
Sentencing Commission. The Guidelines state that for a “sex offense” such as

42
United States v. Paul, 274 F.3d 155, 165 (5th Cir. 2001).
43
18 U.S.C. § 3583(k).
44
United States v. Weatherton, 567 F.3d 149, 153 (5th Cir. 2009) (citations omitted).
45
Id. at 153 n.1 (citation omitted).
46
Id. at 153 (citations omitted).

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No. 10-50500

that committed by Miller, the term “may be up to life.”47 The Guidelines also
include the following “Policy Statement”: “If the instant offense of conviction is
a sex offense, however, the statutory maximum term of supervised release is
recommended.”48
Miller concedes that some restrictions on his use of a computer or the
Internet “may have been appropriate.” He asserts, however, that the restrictions
imposed went beyond merely “limiting” the use of a computer by sex offenders,
as recommended by a policy statement in the Guidelines,49 and that the
restrictions amount to a 25-year ban on all computer and Internet use. We
disagree. The ban is not absolute or unconditional, as were the bans in United
States v. Voelker50 and United States v. Heckman,51 two opinions of the Third

47
U.S. SENTENCING GUIDE MANUAL § 5D1.2(b) (2009).
48
Id. (the definitions in application note 1 define a "sex offense" as including an offense
against a minor under Title 18, Chapter 110—which includes the instant provision, 18 U.S.C.
§ 2252).
49
U.S. SENTENCING GUIDE MANUAL § 5D1.3(d)(7)(B):

(d) (Policy Statement) The following “special” conditions of supervised
release are recommended in the circumstances described and, in
addition, may otherwise be appropriate in particular cases: . . .

(7) Sex Offenses

If the instant offense of conviction is a sex offense, as defined in
Application Note 1 of the Commentary to § 5D1.2 (Term of
Supervised Release)– . . .

(B) A condition limiting the use of a computer or an
interactive computer service in cases in which the
defendant used such items.
50
489 F.3d 139, 143 (3d Cir. 2007).
51
592 F.3d 400, 403 (3d Cir. 2010).

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Circuit cited by Miller. Miller’s probation officer may grant permission to use
a computer and to access the Internet.52
Miller relies heavily on decisions from other circuits in arguing that we
should vacate the restrictions placed on computer and Internet access as overly
broad and unduly restrictive. Again citing Voelker53 and relying upon the
District of Columbia Circuit’s decision in United States v. Russell,54 Miller
contends that “‘[c]omputers and internet access have become virtually
indispensable in the modern world,’”55 and that “employment today often
requires access to computers, just as work ‘100 years ago would almost
invariably have required the use of pens and pencils.’”56 He contends that the
restrictions imposed by the district court undermine the sentencing goal of

52
See, e.g., United States v. Boston, 494 F.3d 660, 668 (8th Cir. 2007) (concluding that
a prohibition from accessing or possessing a computer at home or elsewhere without the prior
written approval of a probation officer “was not absolute”); United States v. Alvarez, 478 F.3d
864, 868 (8th Cir. 2007) (“[T]he special condition does not completely prohibit Alvarez’s use of
the Internet; should he present sufficient justification and secure his probation officer’s
consent, the terms of the special condition allow him access to the Internet outside of his
residence”); United States v. Fields, 324 F.3d 1025, 1027 (8th Cir. 2003) (examining a similar
prohibition and concluding that the defendant “may use and even possess a computer wtih the
permission of is probation officer”); United States v. Walser, 275 F.3d 981, 988 (10th Cir. 2001)
(concluding that the defendant was “not completely banned from using the Internet. Rather,
he must obtain prior permission from the probation office,” but also noting “the vagueness of
the special condition leaves open the possibility that the probation office might unreasonably
prevent [the defendant] from accessing one of the central means of information-gathering and
communication in our culture today,” while concluding that this vagueness did not constitute
plain error).
53
489 F.3d 139, 148 (3d Cir. 2007).
54
600 F.3d 631, 637 (D.C. Cir. 2010) (quoting United States v. Peterson, 248 F.3d 79,
83 (2d Cir. 2001)).
55
Voelker, 489 F.3d at 148 n.8.
56
Russell, 600 F.3d at 637.

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No. 10-50500

rehabilitation by severely limiting his future employment prospects, again citing
Russell.57
Quoting Voelker, Miller argues that the Internet restrictions unduly
burden his liberty interests because computers and other devices that access the
Internet are “‘an important medium of communication, commerce, and
information-gathering.’”58 Citing the District of Columbia Circuit’s decision in
United States v. Love,59 he asserts that the restrictions deprive him “of the
easiest way to pay his bills, check the weather, stay on top of world events, and
keep in touch with friends.”60 In Voelker, the ban that was vacated was a
lifetime restriction that applied not only to Internet usage but to computer
equipment as well and did not permit a probation officer to allow any access, at
all, to either.61 In Love, the court of appeals upheld a restriction on Internet
access similar to the restriction the district court imposed on Miller.62 The
reasoning in these decisions does not compel the conclusion that the restrictions
imposed upon Miller are overly broad.
Nevertheless, we acknowledge that there is some tension among various
courts of appeals’ opinions regarding the reasonableness of restrictions on
computer use and Internet access.63 Dichotomies can be discerned.

57
Id. at 636-39.
58
Voelker, 489 F.3d at 148 (quoting United States v. Crume, 422 F.3d 728, 733 (8th Cir.
2005)).
59
593 F.3d 1 (D.C. Cir. 2010).
60
Id. at 12.
61
Voelker, 489 F.3d at 143.
62
Love, 593 F.3d at 11-13.
63
See United States v. Sullivan, 451 F.3d 884, 895 (D.C. Cir. 2006) (observing “[t]his
circuit has yet to decide whether individuals convicted of sex crimes may have their Internet
usage conditioned on Probation Office approval, and our sister circuits are divided on the

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With regard to absolute bans (those that do not permit a probation officer
to allow exceptions), the Seventh Circuit vacated a condition that prohibited the
possession or use of a computer equipped with Internet capability,64 although
that court noted that such a ban might be appropriate if there were “at least
some evidence of the defendant’s own outbound use of the Internet to initiate
and facilitate victimization of children.”65 Our court upheld an absolute, three-
year ban on possessing or having access to a computer or the Internet in United
States v. Paul,66 which we will discuss in more detail below. This court also
affirmed a revocation of supervised release for violation of a similar three-year
prohibition in United States v. Brigham.67
Even when a condition of release is not absolute and provides that the
Probation Office may grant permission to a defendant to access the Internet,
some courts have held that if the defendant was convicted “merely” of possessing
or receiving child pornography, such a condition was a greater deprivation of the
defendant’s liberty than was reasonably necessary.68 However, some of those

issue.”) (comparing United States v. Rearden, 349 F.3d 608, 621 (9th Cir. 2003), and United
States v. Zinn, 321 F.3d 1084, 1093 (11th Cir. 2003), with Crume, 422 F.3d at 733, and United
States v. Sofsky, 287 F.3d 122, 126 (2d Cir. 2002)).
64
See United States v. Holm, 326 F.3d 872, 877 (7th Cir. 2003).
65
Id. at 878.
66
274 F.3d 155, 169-70 (5th Cir. 2001).
67
569 F.3d 220, 224, 234 (5th Cir. 2009) (affirming a special condition that provided
“[t]he defendant shall not possess or utilize a computer or internet connection device during
the term of supervised release.”).
68
Crume, 422 F.3d at 733 (holding that one consideration in prior decisions upholding
restrictions on Internet access and computer use “was that there was evidence that the
defendant used his computer and the Internet to do more than merely possess child
pornography” and vacating restrictions that prohibited internet access unless prior written
consent from the probation officer was obtained) (citing United States v. Ristine, 335 F.3d 692,
696 (8th Cir. 2003), United States v. Fields, 324 F.3d 1025, 1027 (8th Cir. 2003)); see also
United States v. Freeman, 316 F.3d 386, 391-92 (3d Cir. 2003); United States v. Sofsky, 287

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No. 10-50500

same courts have upheld, or stated that they would uphold, such bans when
there was an indication that the defendant might “use the Internet to locate
children and lure them to sexual abuse.”69 Other courts have similarly
concluded that, although “an Internet ban subject to Probation Officer approval
may in some cases impose a ‘greater deprivation of liberty than is reasonably
necessary’ to deter illegal conduct and protect the public,” Internet bans “may
be appropriate for those who use the Internet to ‘initiate or facilitate the
victimization of children’”70
Other courts have not required evidence of actual contact with a minor to
support the imposition of a prohibition on Internet use as a condition of
supervised release. The Eighth Circuit upheld a prohibition on accessing or
possessing a computer unless the defendant obtained the prior written
permission of his probation officer as reasonable because the defendant “had
used a computer to print out images of child pornography which could easily

F.3d 122, 126 (2d Cir. 2002).
69
United States v. Johnson, 446 F.3d 272, 274-75, 281-83 (2d Cir. 2006) (upholding ban
similar to Miller’s because the defendant was a sophisticated user of computers who had sex
with two minors and was on his way to have sex with a third when apprehended and
distinguishing Sofsky, 287 F.3d 122); see also United States v. Bender, 566 F.3d 748, 751-52
(8th Cir. 2009) (upholding restriction on use of a computer and online access without the prior
approval of a probation officer because the defendant “arranged on-line to meet a woman for
sexual relations, and pursued a sexual relationship despite discovering that she was a minor”);
Crume, 422 F.3d at 733 (noting that “‘[i]n cases where defendants used computers or the
internet to commit crimes involving greater exploitation [than possessing child pornography],
such restrictions have been upheld’”) (quoting Fields, 324 F.3d at 1027); Freeman, 316 F.3d
at 392 (“We are not in any way limiting our ability to so restrict the use of computers when a
defendant has a past history of using the internet to contact children.”).
70
United States v. Love, 593 F.3d 1, 12 (D.C. Cir. 2010); see also United States v.
Heckman, 592 F.3d 400, 408 (3d Cir. 2010) (vacating an unconditional lifetime ban on Internet
usage, observing that the defendant “has never been convicted of criminal behavior that
involved the use of the Internet either to lure a minor into direct sexual activity (such as
Crandon) or to entice another to exploit a child directly (such as Thielemann)”) (discussing
United States v. Thielemann, 575 F.3d 265 (3d Cir. 2009), United States v. Crandon, 173 F.3d
122 (3d Cir. 1999)).

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No. 10-50500

have been done for the purpose of transferring them to others.”71 The Eleventh
Circuit recognized that “the Internet has become an important resource for
information, communication, commerce, and other legitimate uses, all of which
may be potentially limited to Appellant as a result of our decision.”72 That court
nevertheless affirmed a condition that prohibited Internet access unless
permission was obtained from the probation officer, stressing that the defendant
had more than 4,000 images of child pornography in his possession, and his
counsel had admitted that it was a “‘reasonable assumption’” that they came
from the Internet.73
The Ninth Circuit commented on the divisions among court decisions in
United States v. Rearden, observing that courts that have upheld prohibitions
on Internet usage unless prior permission to access the Internet is given by the
Probation Office “reason that there is a ‘strong link between child pornography
and the Internet, and the need to protect the public, particularly children, from
sex offenders,’”74 “while those [courts] rejecting prohibitions on Internet use are
more impressed with the ‘virtually indispensable’ nature of the Internet in
today’s world.”75 In Rearden, reviewing for plain error, the Ninth Circuit held
that the Internet restriction, similar to Miller’s, was reasonably related to his
offense of shipping, by means of e-mail transmissions, “quite graphic child
pornography,” and the restriction was also reasonably related to “the important
goal of deterring [the defendant]” and thus “rehabilitation and protecting the

71
United States v. Boston, 494 F.3d 660, 668 (8th Cir. 2007).
72
United States v. Zinn, 321 F.3d 1084, 1093 (11th Cir. 2003).
73
Id. at 1093 n.11.
74
349 F.3d 608, 621 (9th Cir. 2003) (quoting Zinn, 321 F.3d at 1092).
75
Id. (quoting United States v. Sofsky, 287 F.3d 122, 126 (2d Cir. 2002)).

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No. 10-50500

public.”76 The Rearden decision held that the restriction did not plainly involve
a greater than reasonably necessary deprivation of liberty, recognizing that the
Probation Office could approve online access.77
The decisions of our court have tended to permit sentencing courts to give
more weight to the goals of protecting the public and preventing recidivism in
balancing those considerations with a defendant’s liberty interests when
Internet usage was related to the offense for which the defendant was convicted.
In United States v. Paul, the condition “prohibit[ed] access to both computers
and the Internet and it contain[ed] no proviso permitting [the defendant] to use
these resources with the approval of his probation office.”78 In Paul, the
defendant was convicted of possession of child pornography, but there was
evidence that he had “in the past used the Internet to encourage exploitation of
children by seeking out fellow ‘boy lovers’ and providing them with advice on
how to find and obtain access to ‘young friends.’”79 We considered decisions from
other circuits and expressly “reject[ed] the White court’s [Tenth Circuit’s]
implication that an absolute prohibition on accessing computers or the Internet
is per se an unacceptable condition of supervised release, simply because such
a prohibition might prevent a defendant from using a computer at the library to
‘get a weather forecast’ or to ‘read a newspaper online’ during the supervised
release term.”80 We concluded that a condition like that imposed on Paul “can
be acceptable if it is reasonably necessary to serve the statutory goals outlined

76
Id.
77
Id.
78
274 F.3d 155, 169 (5th Cir. 2001).
79
Id.
80
Id. at 169-70 (quoting United States v. White, 244 F.3d 1199, 1206 (10th Cir. 2001)).

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in 18 U.S.C. § 3583(d).”81 We observed that “the district court had strong
evidentiary support for its determination that a strict ban on computer and
Internet use was reasonably necessary” and that the defendant “articulated no
specific objections to the computer and Internet ban suggesting how his
occupational affairs or his expressive activities will be adversely impacted by the
fact that he will be unable to ‘use a computer or the Internet at a library,
cybercafe or . . . an airport’ during the term of his supervised release.”82
There are at least two factual distinctions between Paul and the present
case, one that weighs at least slightly in Miller’s favor and one that does not.
The term of supervised release in Paul was three years, while Miller’s term is
25 years. The other difference is that the ban on Internet access in Paul was
unconditional. It did not permit the Probation Office to make exceptions.
Miller’s restriction is not unconditional, as we have discussed above. There are
decisions from other jurisdictions that have drawn a distinction between the
comparatively short three-year term of supervised release in Paul and much
longer bans on Internet access.83 There are, however, other decisions that have
upheld a ban on Internet access, even one that applied for the duration of the

81
Id. at 170.
82
Id.
83
See, e.g., United States v. Russell, 600 F.3d 631, 638 (D.C. Cir. 2010) (“Paul’s
computer restriction was to last three years, or one tenth of the duration of Russell’s [30-year
term of supervised release]—a difference that makes Paul’s restriction both less burdensome
and less likely to become a still poorer fit over time.”); United States v. Heckman, 592 F.3d 400,
407 n.9 (3d Cir. 2010) (“The Internet bans cited in the Government’s brief [including the ban
in Paul] are each for limited periods of time. . . . To our knowledge, only the Eighth Circuit
Court has upheld a lifetime ban on either Internet or computer access in a precedential
opinion.”) (citing United States v. Stults, 575 F.3d 834 (8th Cir. 2009)).

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defendant’s life, when the Probation Office had the authority to permit Internet
access.84
The Court of Appeals for the District of Columbia Circuit has described
Paul as an “outlier.”85 But in the same opinion, that court discussed at some
length the facts in Paul that made it “a far stronger case for blanket restriction”
than the case then before the D.C. Circuit.86 Just three months earlier, the D.C.
Circuit had cited Paul as one among several decisions supporting that court’s
conclusion that “[c]onsensus is emerging among our sister circuits that Internet
bans, while perhaps unreasonably broad for defendants who possess or
distribute child pornography, may be appropriate for those who use the Internet
to ‘initiate or facilitate the victimization of children.’”87 That court reasoned that
“[t]he distinction is grounded in the simple proposition that when a defendant
has used the Internet to solicit sex with minors, ‘the hazard presented by
recidivism’ is greater than when the defendant has traded child pornography.”88
We do not join a “consensus,” as described by the D.C. Circuit in Love, that
may or may not exist when the various writings of various circuit courts are
considered.89 We are not persuaded that a district court should be stripped of

84
See, e.g., United States v. Love, 593 F.3d 1, 5, 12 (D.C. Cir. 2010) (affirming lifetime
ban); United States v. Lay, 583 F.3d 436, 445 (6th Cir. 2009) (affirming ban during 20-year
supervised release period); United States v. Boston, 494 F.3d 660, 667-68 (8th Cir. 2007)
(affirming lifetime ban).
85
Russell, 600 F.3d at 638 (“We have found only one case, [Paul], that upholds, against
proper challenge, a categorical prohibition on computer possession or use without provision
for probation office modification. Not only is Paul an outlier, but in key respects it represents
a far stronger case for blanket restriction.”).
86
Id.
87
Love, 593 F.3d at 12.
88
Id. (quoting United States v. Johnson, 446 F.3d 272, 283 (2d Cir. 2006)).
89
Id.

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authority to limit Internet access when there is no evidence of solicitation of sex
with minors. We instead recognize that district courts have broad discretion in
establishing conditions for supervised release. The sentencing judge has the
opportunity to consider not only a defendant’s past behavior but his demeanor
and credibility. The district court in the present case did not abuse its discretion
in imposing the prohibitions on computer and Internet access in light of the
record before it. We will not recount all the facts that support this conclusion.
Suffice it to say that Miller’s history reflects his use of the Internet to victimize
minors.
Miller contends that the twenty-five-year duration of the restrictions
regarding Internet access is longer than necessary to accomplish the goals of
supervised release. The Guideline’s policy statement recommends the
imposition of the maximum statutory term,90 which would be a life term in cases
such as Miller’s.91 Noting the Guidelines’ policy statement, we have previously
upheld a lifetime term of supervised release for an individual convicted of
possession of child pornography.92 Similarly, the Ninth Circuit upheld lifetime
limitations on computer and Internet use in a child pornography possession
case.93 Here, the district court had strong evidentiary support for its
determination that a 25-year prohibition on computer and Internet use unless
prior permission from the Probation Office is obtained was reasonably necessary.

90
U.S. SENTENCING GUIDELINES MANUAL § 5D1.2(b) (2009) (“(Policy Statement) If the
instant offense of conviction is a sex offense, however, the statutory maximum term of
supervised release is recommended.”).
91
18 U.S.C. § 3583(k).
92
United States v. Gonzalez, 445 F.3d 815, 818-19 (5th Cir. 2006) (citing U.S.
SENTENCING GUIDELINES MANUAL § 5D1.2(b) (2009)).
93
United States v. Daniels, 541 F.3d 915, 922-24 (9th Cir. 2008) (citing U.S.
SENTENCING GUIDELINES MANUAL. § 5D1.2(b) (2009)).

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Citing two cases from other circuits,94 Miller asserts that there are
alternative means of monitoring his Internet use that will adequately deter
crime and protect the public. In the first of those cases, Heckman, the district
court had imposed an unconditional, lifetime ban on Internet access,95 and the
availability of alternative means of monitoring Internet usage was just one
consideration that led the Third Circuit to vacate the condition.96 In the second
case cited by Miller, Johnson, the Second Circuit affirmed the Internet
prohibitions in spite of the suggestion that other means of monitoring Internet
use were available.97
We are cognizant that recently, in United States v. Albertson, the Third
Circuit vacated a condition that barred the defendant from online access unless
he obtained the prior written approval of the probation officer.98 That court was
of the view that “in a time where the daily necessities of life and work demand
not only internet access but internet fluency, sentencing courts need to select the
least restrictive alternative for achieving their sentencing purposes.”99 The
Third Circuit then reasoned that in light of the defendant’s history, sentencing
goals could be “achieve[d] . . . through an internet prohibition and monitoring
requirement to assure that Albertson does not engage in offensive conduct.”100

94
United States v. Heckman, 592 F.3d 400, 408 (3d Cir. 2010); United States v. Johnson,
446 F.3d 272, 282 (2d Cir. 2006).
95
Heckman, 592 F.3d at 402.
96
Id. at 408-09.
97
Johnson, 446 F.3d at 282-83.
98
645 F.3d 191, 200 (3d Cir. 2011).
99
Id.
100
Id.

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With great respect to the rationale of some of the decisions of our sister
circuit courts, we reject the argument that a district court may only resort to
restrictions on Internet access like those imposed in the present case after
investigating the efficacy of other options such as monitoring computer usage
and Internet sites visited, unannounced inspections, and filtering devices.
Internet access is widely available at locations other than one’s home or place of
employment. Internet access is similarly widely available from many types of
devices that defendants like Miller might obtain or use without detection. In
addition, there are a variety of devices that are likely to be possessed by friends,
family, and acquaintances that might be available to defendants such as Miller
for Internet access without detection.
We further note that in the present case, Miller will be incarcerated for a
substantial period of time while serving his 25-year prison term. His supervised
release and the restrictions on computer use and Internet access will not
commence until after he is released from prison. Any hearing that the district
court may have conducted regarding alternative means of preventing Miller from
accessing child pornography, such as filtering or screening software, would have
produced information that is likely to be outdated, if not useless, by the time
that Miller’s supervised release begins.101 The district court’s restrictions

101
But cf. United States v. Perazza-Mercado, 553 F.3d 65, 73-74 (1st Cir. 2009)
(concluding that it may be appropriate for a defendant sentenced to 46 months of
incarceration, whose sex offense with a child did not involve Internet use to have, “a targeted
limitation on internet use” during supervised release and discussing various court decisions
and articles that have surveyed the technology available for monitoring computer usage)
(citing United States v. Lifshitz, 369 F.3d 173, 191-93 (2d Cir. 2004); United States v. Holm,
326 F.3d 872, 879 (7th Cir. 2003); United States v. White, 244 F.3d 1199, 1206 (10th Cir. 2001);
Frank E. Correll Jr., “You Fall into Scylla in Seeking to Avoid Charybdis”: The Second
Circuit’s Pragmatic Approach to Supervised Release for Sex Offenders, 49 WM. & MARY L. REV.
681, 682-702 (2007); Dane C. Miller et al., Conditions of Supervision that Limit an Offenders’s
Access to Computers and Internet Services: Recent Cases and Emerging Technology, 42 CRIM.
L. BULL., July-Aug. 2006, at 3; Brian K. Payne & Matthew DeMichele, Warning: Sex Offenders
Need to be Supervised in the Community, 72 FED. PROBATION, June 2008, at 37; Stephen Brake
& Jim Tanner, Determining The Need for Internet Monitoring of Sex Offenders,

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No. 10-50500

instead permit flexibility by allowing the probation officer to consider all the
circumstances, including Miller’s needs for computer and Internet access and
alternatives that may exist in the future for supervising that access. This is a
reasonable means of balancing Miller’s rights and the goal of protecting minors,
as other courts have recognized.102 We, like the District of Columbia Circuit,
“assume the Probation Office will reasonably exercise its discretion by
permitting [the defendant] to use the Internet when, and to the extent, the
prohibition no longer serves the purposes of his supervised release.”103
IV
Miller challenges the condition that he can “not own or possess any type
of camera, photographic device, and or other electronic equipment (including
video recording equipment), without approval of the probation officer.” Miller
objected in the district court on the ground that this condition failed to relate to

http://www.kbsolutions.com/MonitoringNeed.pdf (last visited Nov. 25, 2008); Jim Tanner,
Rethinking Computer Management of Sex Offenders Under Community Supervision,
http://www.kbsolutions.com/rcm.pdf (2007)).
102
See United States v. Love, 593 F.3d 1, 12 (D.C. Cir. 2010) (upholding a similar
restriction while noting that the “term of supervised release will not begin any time soon,” that
there may be changes in technology, and therefore that “[a] broad Internet prohibition, which
the Probation Office will tailor to the technology in use at the time of [the defendant’s] release,
is an appropriate way to deal with that uncertainty.”); see also United States v. Russell, 600
F.3d 631, 638 (D.C. Cir. 2010) (concluding that “[a] provision for modification by the probation
department—a minimum change suitable on remand—would allow the restriction to adjust
to ongoing developments in technology and to secure a reasonable balance between the
statute’s rehabilitative and deterrence goals.”). But see United States v. Mark, 425 F.3d 505,
510 (8th Cir. 2005) (holding that restrictions on computer and Internet access to commence
after a sentence of 30 months of imprisonment for “simple” possession of child pornography
was not supported by the record because the district court did not explore alternatives such
as a filtering program, or restrictions on the time and place of Internet access combined with
regular monitoring and inspections by the probation office).
103
United States v. Love, 593 F.3d 1, 12 (D.C. Cir. 2010).

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the statutory criteria for supervised release conditions, and therefore we
consider that challenge for an abuse of discretion.104
Miller asserts that his offense did not involve a camera or any other
photographic device and therefore the condition is not reasonably related to “the
nature and characteristics of the offense and the history and characteristics of
the defendant.”105 Although Miller did not use a camera in committing his
offense, the record reflects that he engaged in highly inappropriate, if not
criminal, activities that involved the use of photographic equipment. Miller
admitted to using a web camera to communicate with a juvenile female on two
occasions. His cell phone had images of child pornography, including depictions
of bondage. Miller’s history fully supported the condition he now assails.
On appeal, Miller argues for the first time that the ban on “other electronic
equipment” could have a variety of additional applications beyond recording
devices: for instance, “a television, radio, DVD player, or even an MP3 player.”
In objecting in the district court, Miller did not reference the potential for this
phrase to have a meaning uncabined by the other items listed with it. As a
result, the district court had no opportunity to discern Miller’s concern and
obviate the need for our review by clarifying its language. We review Miller’s
unpreserved contention for plain error.106
No such error occurred. This court has stated that “‘conditions of
probation can be written—and must be read—in a commonsense way’ because

104
United States v. Paul, 274 F.3d 155, 165 (5th Cir. 2001).
105
18 U.S.C. § 3553(a)(1).
106
United States v. Gutierrez, 635 F.3d 148, 152 (5th Cir. 2011); see also United States
v. Burns, 526 F.3d 852, 858 (5th Cir. 2008) (quoting United States v. Jimenez, 256 F.3d 330,
340 (5th Cir. 2001)) (“Plain error exists if (1) there was error; (2) the error was clear and
obvious; and (3) the error affected a substantial right. Plain error review is limited to those
errors that ‘seriously affect the fairness, integrity or public reputation of judicial
proceedings.’”).

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‘it would be impossible to list’ every instance of prohibited conduct.”107 Here, the
list of prohibited items refers exclusively to recording devices. A commonsense
reading of the phrase “other electronic equipment,” immediately after the
naming of two recording devices, and immediately followed by a parenthetical
naming a specific type of recording device, limits the phrase to other electronic
recording devices. It would also be nonsensical to include computer use in
another release condition if “electronic equipment” had the broad meaning now
imputed to it by Miller. The term clarifies that Miller cannot use a future
recording device not presently in existence. Our construction of the term is also
consistent with the canon of ejusdem generis, which provides that “‘where
general words follow the enumeration of particular classes of persons or things,
the general words will be construed as applicable only to persons or things of the
same general nature or class as those enumerated.’”108
V
The district court imposed a condition pertaining to sexually stimulating
or sexually oriented materials:
The defendant shall refrain from purchasing, possessing, or
using any sexually stimulating or sexually oriented materials
including but not limited to written, audio and visual depictions,
such as, pornographic books, magazines, photographs, films, videos,
DVDs, computer programs, or any other media for portrayal of the
same.
Miller challenges this condition on three grounds, arguing that it: (1) impinges
on his First Amendment rights because it forbids him from possessing legal
adult pornography, (2) impinges on his First Amendment rights because it

107
United States v. Phipps, 319 F.3d 177, 193 (5th Cir. 2003) (quoting Paul, 274 F.3d
at 166).
108
First Am. Title Ins. Co. v. First Trust Nat’l Ass’n (In re Biloxi Casino Belle Inc.), 368
F.3d 491, 499 n.8 (5th Cir. 2004) (quoting Rhoden v. State Farm Fire & Cas. Co., 32 F. Supp.
2d 907, 912 (S.D. Miss. 1998)).

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forbids him from possessing legal sexually oriented material that is not
pornographic, such as PLAYBOY magazine, and (3) violates his right to due
process because it fails to give sufficient notice of what he is banned from
possessing.
Miller’s only objection to this condition in the district court was

viewing pornography . . . [since] all such conditions on supervision
must reasonably relate to certain statutory criteria set out in
3553(a) or 3583, and they also must be designed to be not any
greater—to impose no greater deprivation of liberty than is
reasonably necessary. Some of those conditions, such as viewing
pornography generally . . . may be overbroad.
Miller’s objection that the condition “may be overbroad” was insufficient to
preserve the specific challenges that he now asserts on appeal. Miller did not
“raise a claim of error with the district court in such a manner so that the
district court may [have] correct[ed] itself and thus, obviate[d] the need for our
review.”109 We therefore review for plain error.110
Miller acknowledges that restrictions on access to sexually oriented
materials is permissible if those restrictions have a clear nexus to the goals of
supervised release, citing a decision of the Third Circuit.111 He argues that there
is no indication in the record that sexually explicit material involving only adults
contributed in any way to his offense of transporting child pornography. In a
related vein, he asserts that there is no reason to believe that viewing adult
pornography would cause him to reoffend. Because Miller’s challenge is based
on factual matters, we accept the legal framework that he posits, without
endorsing or adopting that framework. We conclude that the district court did

109
Gutierrez, 635 F.3d at 152 (quoting United States v. Mondragon-Santiago, 564 F.3d
357, 361 (5th Cir. 2009)).
110
Id.
111
United States v. Thielemann, 575 F.3d 265, 272 (3d Cir. 2009).

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not clearly err in finding a nexus between Miller’s history and the prohibitions
regarding adult pornography and other legal, sexually stimulating material.
Among the items listed in the indictment count to which Miller pled guilty
was a “video file depicting a nude minor female being anally raped by a nude
adult male while a nude adult female holds the minor female in place.” The
presence of both nude adults in Miller’s video permits the conclusion that
Miller’s interest in “sexually stimulating” materials involving adults is
intertwined with his sexual interest in minors and thus, his offense.
The presentence investigation report documented the ways in which
Miller’s consumption of adult pornography impinged on his daily life. For
instance, the Navy’s investigation of Miller began because of the adult and child
pornography he had downloaded to his work computer. He also often used paid
phone sex companies, in some cases charging in excess of $100 to his
grandfather’s credit card. This evidence supports the district court’s explicit
concerns regarding Miller’s “obsession for making phone sex calls and viewing
pornography.” Even were we to review for an abuse of discretion Miller’s
contention that this release condition does not reasonably relate to any of the
§ 3583 and § 3553 factors, the district court would not have abused its discretion
in imposing this condition in light of the foregoing.112
Miller’s second contention on appeal is that the prohibition regarding
sexually oriented or sexually stimulating material could include magazines such
as PLAYBOY, or “an art gallery exhibit of erotica.” We do not address whether the
imposition of this condition constituted error because “[a]n error is considered

112
See United States v. Paul, 274 F.3d 155, 165 (5th Cir. 2001); see also United States
v. Boston, 494 F.3d 660, 668 (8th Cir. 2007) (holding that “the condition in prohibiting his
access to sexually explicit material involving adults is not overly broad” for defendant
convicted of producing child pornography in light of his “history of sexual offenses”).

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plain, or obvious, only if the error is clear under existing law.”113 Miller has cited
no controlling authority on this question of First Amendment overbreadth. Our
sister circuits have upheld, under varying standards of review, conditions of
supervised release barring individuals convicted of child pornography offenses
from possessing sexually explicit materials in the face of First Amendment
overbreadth challenges.114 Because our law is unsettled, and the law of our
sister circuits is not uniformly in the defendant’s favor, plain error is not
demonstrated.115
Miller’s third challenge to this condition of supervised release is that the
condition is vague: “it fails to give Miller sufficient notice of what he is banned
from possessing while on supervised release.” He offers as examples of
ambiguity whether he could be convicted for viewing Michelangelo’s David,
reading the novel Lolita or viewing its film adaptation, and again points to
PLAYBOY magazine.
Under plain error review, we have previously held a supervised release
condition precluding the possession of “sexually oriented or sexually stimulating
materials” was not impermissibly vague.116 We stated that “a commonsense
reading of the special condition” “compels us to disagree with defendants’
suggestion that the condition could apply to newspapers and magazines that
contain lingerie advertisements or even to the ‘Song of Solomon.’”117 That
commonsense reading would be required even if we reviewed a preserved

113
United States v. Salinas, 480 F.3d 750, 756 (5th Cir. 2007) (citing United States v.
Olano, 507 U.S. 725, 734 (1993)).
114
See, e.g., United States v. Daniels, 541 F.3d 915, 927-28 (9th Cir. 2008) (reviewing
for plain error); Boston, 494 F.3d at 667-68 (reviewing for abuse of discretion).
115
See Salinas, 480 F.3d at 759.
116
United States v. Phipps, 319 F.3d 177, 193 (5th Cir. 2003).
117
Id.

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objection. As we noted in United States v. Paul, reviewing for abuse of
discretion, “categorical terms can provide adequate notice of prohibited conduct
when there is a commonsense understanding of what activities the categories
encompass.”118 Indeed, “while a probationer ‘is entitled to notice of what
behavior will result in a violation, so that he may guide his actions accordingly
. . . [c]onditions of probation ‘may afford fair warning even if they are not precise
to the point of pedantry.’”119
Even were there no precedent in this circuit to guide us, we cannot say
that the law in this area is clear when we consider decisions of other circuit
courts.120 The district court did not plainly err in imposing the challenged
condition.
***
We AFFIRM.

118
274 F.3d at 167.
119
Id. at 166-67 (quoting United States v. Gallo, 20 F.3d 7, 12 (1st Cir. 1993)).
120
Compare United States v. Stults, 575 F.3d 834, 854-55 (8th Cir. 2009) (conducting
plain error review and concluding that law was unsettled as to whether the term
“pornography” as used in a condition of supervised release was too vague), United States v.
Rearden, 349 F.3d 608, 619-20 (9th Cir. 2003) (holding that condition prohibiting possession
of “sexually explicit conduct” as defined in 28 U.S.C. § 2256(2) “is neither vague or overly
broad”), and United States v. Simmons, 343 F.3d 72, 80-83 (2d Cir. 2003) (holding that
condition prohibiting possession of “pornographic material” gave adequate guidance of what
was prohibited in light of the definitions in 28 U.S.C. § 2256 of pornography and sexually
explicit conduct), with United States v. Voelker, 489 F.3d 139, 152 (3d Cir. 2007) (recounting
that a prior decision vacated a ban encompassing legal and illegal pornography because it was
found to violate “due process rights by ‘failing to provide [the defendant] with adequate notice
of what he may or may not do, chilling First Amendment rights in the process’”) (quoting
United States v. Loy, 237 F.3d 251, 267 (3d Cir. 2001)), and United States v. Antelope, 395 F.3d
1128, 1141-42 (9th Cir. 2005) (holding that “any pornographic, sexually oriented or sexually
stimulating materials” was impermissibly vague).

38