United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-1793
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Arkansas.
Stephen D. Morais, *
*
Appellant. *
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Submitted: November 17, 2011
Filed: March 13, 2012
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Before SMITH, COLLOTON, and GRUENDER, Circuit Judges.
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COLLOTON, Circuit Judge.
Stephen Morais pleaded guilty to two counts of receiving child pornography,
in violation of 18 U.S.C. § 2252A(a)(2). The district court sentenced him to
concurrent terms of 97 months’ imprisonment and a lifetime of supervised release.
The court also imposed a $15,000 fine. On appeal, Morais challenges his term of
imprisonment, the imposition of a fine, and two special conditions of his supervised
release. We affirm Morais’s sentence, the fine, and one of the special conditions, but
remand with instructions that the district court modify its written judgment to
conform to its oral pronouncement of the other special condition of supervised
release.
I.
In May 2009, a child abuse hotline received a report of suspicious behavior by
Morais involving two sisters, three-year-old H.R. and six-year-old R.W. According
to the report, R.W. and her brother, D.A., saw Morais take a photograph of H.R. with
her pants removed. In subsequent interviews, R.W. and D.A. stated that Morais, who
was acquainted with the children’s family through church, used his cell phone to
photograph H.R. at a park.
Law enforcement officers executed a search warrant at Morais’s residence and
seized, among other things, two cell phones, six computer thumb drives, and four
laptop computers. Forensic examination of the computers and thumb drives revealed
8,200 images of child pornography, which Morais had acquired between January
1998 and May 2009. The examination of Morais’s laptop computer also revealed
sixteen images of H.R. with her genital area exposed. Morais admitted that he used
his cell phone to photograph H.R. while her genitals were exposed, and he admitted
downloading numerous images of nude children from the Internet and possessing
them on his computers and digital storage devices.
A grand jury charged Morais with five counts of receiving child pornography,
in violation of 18 U.S.C. § 2252A(a)(2), and one count of possessing child
pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). Morais pleaded guilty to
two counts of receiving child pornography.
The district court calculated an advisory guideline range of 97 to 121 months’
imprisonment and a fine of $15,000 to $150,000, based on a total offense level of 30
and criminal history category I. The government suggested a sentence within the
advisory guideline range, while Morais sought the statutory minimum sentence of 60
months’ imprisonment on each count. He argued that the statutory minimum term
was appropriate due to the “relatively tame” nature of the child pornography that he
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collected, and due to his diagnosis of autism. In support of the latter argument,
Morais offered the testimony of Dr. James Stone, a neuropsychologist. Dr. Stone
testified that Morais suffers from “mind blindness,” which makes it difficult for him
to “perceive, predict, and react appropriately to another person’s thoughts, emotions,
et cetera, to be able to put yourself in another person’s shoes, essentially.” The expert
testified that Morais has difficulty with social interaction, that autistic individuals
tend to collect things, and that Morais does not understand the “social basis” for the
prohibition on child pornography. Dr. Stone also opined that Morais’s autism placed
him at risk of being victimized or manipulated in prison.
The district court sentenced Morais to 97 months’ imprisonment on each count
and imposed a $15,000 fine. The court also imposed a lifetime term of supervised
release with several special conditions, two of which are relevant here. Special
condition one provides that Morais shall, in certain circumstances, “submit to any
means utilized by the probation office to track his whereabouts or location at any
time.” Special condition four restricts Morais’s access to the Internet.
II.
A.
Morais argues that the district court imposed a substantively unreasonable
sentence. Citing his autism and the nature of the child pornography he possessed,
Morais argues that the district court’s sentence is greater than necessary to comply
with the purposes of sentencing set forth in 18 U.S.C. § 3553(a)(2). We review the
substantive reasonableness of a sentence under a deferential abuse-of-discretion
standard, Gall v. United States, 552 U.S. 38, 41 (2007), and we presume that a
sentence imposed within the advisory guideline range is substantively reasonable.
United States v. Ruelas-Mendez, 556 F.3d 655, 657 (8th Cir. 2009).
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The sentence imposed was not unreasonable. A district court has substantial
discretion in determining how to weigh the § 3553(a) factors. The court here
considered and rejected Morais’s argument that the nature of his child pornography
warranted a downward departure or variance. The court explained that it was
“difficult to engage in any exercise of differentiation that one is more bad than the
other,” and that such a distinction failed to provide adequate deterrence, promote
respect for the law, or reflect the seriousness of the offense. Morais argues that the
district court did not “specifically address” his arguments regarding the impact of his
autism diagnosis. But whether the court adequately explained the sentence is a matter
of procedural soundness, not substantive reasonableness, and in any event, “not every
reasonable argument advanced by a defendant requires a specific rejoinder by the
judge.” United States v. Gray, 533 F.3d 942, 944 (8th Cir. 2008). On substance, the
district court heard extensive testimony from Dr. Stone, who testified on cross-
examination, that while autism was related to Morais’s collecting tendencies, autism
did not necessarily dictate the content of what he chose to collect. The court also
posed questions to Dr. Stone, who testified that he had neither done nor seen any
research on how individuals with autism fare in prison, calling it an “unstudied
situation,” and who conceded that he was unaware whether Morais could receive
appropriate treatment in prison. The record thus included sufficient reasons for the
court reasonably to adopt the recommendation of the Sentencing Commission that a
sentence of 97 months was appropriate.
B.
Morais next challenges the district court’s imposition of a fine of $15,000. The
court directed that during his term of incarceration, Morais must pay at least $25
quarterly or ten percent of his prison earnings, whichever is greater. The court
ordered that after release, Morais must pay monthly installments of at least ten
percent of his monthly household income, and in no case less than $200 per month.
Morais objected at sentencing on the ground that he would be unable to pay a fine,
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because he lacked sufficient assets or prospects for employment. On appeal, Morais
argues that the district court failed to address the relevant statutory or guideline
factors, and erred in finding that he would be able to pay the fine. We review the
district court’s imposition of a fine and its determination of the amount of the fine for
clear error. United States v. Allmon, 500 F.3d 800, 807 (8th Cir. 2007).
The district court has statutory authority to impose a fine, 18 U.S.C. § 3571,
and the sentencing guidelines recommend imposition of a fine in all cases, unless the
defendant establishes that he is unable to pay and is not likely to become able to pay
a fine. USSG § 5E1.2(a). In determining whether to impose a fine and the amount
of any fine, the court must consider a number of factors under the governing statutes
and the applicable sentencing guideline. See 18 U.S.C. §§ 3553(a), 3572(a); USSG
§ 5E1.2(d). The district court need not provide detailed findings on each of the
factors, but the court must consider at least “the factors relevant to the particular case
before it.” United States v. Berndt, 86 F.3d 803, 808 (8th Cir. 1996). The court
should make findings regarding the defendant’s ability to pay, see Allmon, 500 F.3d
at 807-08, and should not impose a fine that the defendant has little chance of paying.
Berndt, 86 F.3d at 808.
The record at sentencing showed that Morais holds college degrees in math and
physics. Although he had no assets and credit card debt of approximately $40,000
at the time of sentencing, Morais reported several instances of prior employment. He
worked as a weapons mechanic in the United States Air Force from 1977 to 1981, and
served in the Army Reserves from 1981 through 2006. The latter service included
tours in Iraq and Kosovo. Before his deployment to Iraq in 2005, Morais worked part
time as a math tutor at the University of Arkansas and part time at McDonald’s
restaurant, and he worked as a cashier at Wal-Mart in 2007 and 2008. At sentencing,
Morais testified that he had “answered a lot of [his] math questions” during his
incarceration, and had discovered something that “could actually be used as a
product.” He explained that his discovery “can bring [him] a lot of money, possibly,”
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and he could “do that anywhere,” including in prison. Morais also stated that he had
a potential job opportunity as an engineering consultant.
The district court overruled Morais’s objection to imposition of a fine. The
court remarked: “I recall . . . [Morais] telling me he believes he has realistic . . .
aspirations of earning perhaps a million dollars. He may or may not be able to earn
that, but I think the fine is realistic and so I’ll overrule that objection.”
We see no clear error in the district court’s conclusion that Morais could pay
the minimum fine recommended by the sentencing guidelines through payments of
$200 per month over his term of supervised release. The court’s discussion of the
relevant factors was cryptic, but the court did address the key issue: “the defendant’s
income, earning capacity, and financial resources.” 18 U.S.C. § 3572(a)(1). As the
court observed, Morais himself projected an ability to earn money during and after
incarceration, and the court was entitled to consider his college education and prior
employment in determining that payment of the fine was “realistic.” We are not left
with a definite and firm conviction that a mistake was committed. See United States
v. Wright, 540 F.3d 833, 847 (8th Cir. 2008).
C.
Morais next argues that the district court’s written judgment must be modified
because it conflicts with the court’s oral pronouncement of special condition one. In
pronouncing sentence, the district court stated: “If and when deemed necessary, due
to an inability to keep track of the defendant’s whereabouts during supervised
release, the defendant shall submit to any means utilized by the probation officer to
track his whereabouts or location at any time.” S. Tr. 158 (emphasis added). The
written judgment, however, provides that, “[a]s need be, should the defendant fail to
comply with sex offender registration, he shall submit to any means utilized by the
probation office to track his whereabouts or location at any time.” R. Doc. 35, at 4
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(emphasis added). The parties agree that the two statements conflict, because each
establishes a different condition precedent for the use of tracking devices. Morais
evidently views the oral pronouncement as narrower, because it allows the use of
tracking devices only when the probation office demonstrates “an inability to keep
track of his whereabouts,” whereas the written judgment allows tracking upon
Morais’s failure to comply with sex offender registration, even when the probation
office nonetheless is able to keep track of him. The government apparently sees the
oral pronouncement as broader: there may be cases in which the probation office
cannot track Morais’s whereabouts even when he has complied with sex offender
registration. As we do not disagree with the parties that the oral pronouncement and
written judgment conflict, the oral sentence controls. United States v. Foster, 514
F.3d 821, 825 (8th Cir. 2008). We therefore remand with instructions to amend the
written judgment to conform to the oral pronouncement of special condition one. See
United States v. Durham, 618 F.3d 921, 945 (8th Cir. 2010).
D.
Finally, Morais challenges special condition four of his supervised release.
This condition provides that Morais “shall not have access to an internet-connected
computer or other device with internet capabilities or access the internet from any
location without prior approval by the probation office and for a justified reason.”
Morais objected to the condition at sentencing, arguing that “less restrictive limits”
should be used. On appeal, he argues that the condition is not reasonably related to
the pertinent § 3553(a) sentencing factors and involves a greater deprivation of his
liberty than is reasonably necessary. He also argues that the district court failed to
make individualized findings regarding the need for the restriction. We review the
district court’s imposition of special conditions for abuse of discretion. Durham, 618
F.3d at 933.
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“A district court has broad discretion to impose special conditions of
supervised release, so long as each condition complies with the requirements set forth
in 18 U.S.C. § 3583(d).” United States v. Springston, 650 F.3d 1153, 1155 (8th Cir.
2011). Under § 3583(d), a district court may impose special conditions of supervised
release if the conditions are reasonably related to the sentencing factors set forth in
§ 3553(a), involve no greater deprivation of liberty than is reasonably necessary for
the purposes set forth in § 3553(a), and are consistent with any pertinent policy
statements issued by the Sentencing Commission.
Morais asserts that the district court failed to conduct an individualized inquiry
into the need for special condition four and instead imposed it “based on a
classification of individuals [that Morais] now falls within—sex offender.” Our cases
call for the district court to “conduct an inquiry on an individualized basis,” and say
that the court “may not impose special conditions categorically on all individuals
convicted of certain offenses.” United States v. Kelly, 625 F.3d 516, 520 (8th Cir.
2010) (internal quotation omitted). The lack of individualized findings, however,
does not require reversal if we can discern from the record the basis for the court’s
imposition of the condition. United States v. Thompson, 653 F.3d 688, 694 (8th Cir.
2011). In overruling Morais’s objection, the district court stated that special
condition four was “fully justified” by Morais’s downloading of child pornography
at his residence, and the restriction was “broad enough to permit [Morais] to have
access, with prior approval and for a justified reason.” We are satisfied by this
explanation that the court conducted an individualized inquiry, and the basis for
special condition four is evident from the record in any event.
Given Morais’s use of the Internet to obtain thousands of images of child
pornography, a condition limiting his Internet access is reasonably related to the
statutory purposes of deterrence and protecting the public. See United States v. Mark,
425 F.3d 505, 509 (8th Cir. 2005). The condition is thus permissible so long as it
does not involve a greater deprivation of liberty than is reasonably necessary.
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Morais relies on United States v. Crume, 422 F.3d 728 (8th Cir. 2005), and
United States v. Wiedower, 634 F.3d 490 (8th Cir. 2011), for the proposition that
because he used his computer “simply” to receive and possess child pornography, and
not to produce or distribute it, the restriction is overbroad.* Crume vacated a
comparable condition for a defendant convicted of receiving and possessing child
pornography, after citing the absence of “more serious abuses,” and expressing
“confiden[ce] that the district court can impose a more narrowly-tailored restriction
on [the defendant’s] computer use through a prohibition on accessing certain
categories of websites and Internet content and can sufficiently ensure his compliance
with this condition through some combination of random searches and software that
filters objectionable material.” 422 F.3d at 733. But cf. United States v. Lifshitz, 369
F.3d 173, 192 (2d Cir. 2004) (“It is well known that experienced computer users are
quite resourceful in circumventing the software employed, and federal officials have
even publicly remarked upon this fact.”). Wiedower vacated a broader condition that
banned the use of any computer, whether connected to the Internet or not, without the
prior approval of the probation office, for a defendant convicted of possessing two
images and three short videos of child pornography. 634 F.3d at 492. The panel
reasoned that the defendant “simply” used his computer to receive and possess child
pornography, and that he “may have done so frequently or for an extended period of
time” did not mean that the computer and Internet restrictions were justified. Id. at
495.
Despite some broad language in these prior decisions, we decline to construe
Wiedower and Crume as establishing a per se rule that a district court may never
impose a prior-approval Internet use restriction based on a defendant’s receipt and
possession of child pornography. See Mark, 425 F.3d at 510 (stating, after Crume,
*
The government argued at sentencing that Morais produced child pornography
when he used a cell phone to photograph a three-year-old girl with her genital area
exposed, but the district court was not convinced. S. Tr. 132-33.
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that “[w]e reserve judgment on whether a complete ban on Internet access, in some
case of a defendant involved in possessing child pornography, may be reasonably
necessary within the meaning of § 3583(d)(2)”) (emphasis added). Such a per se rule
would be in tension with our cases holding that a district court should fashion
conditions of supervised release on an individualized basis in light of the statutory
factors, see 18 U.S.C. §§ 3583(d)(2), 3553(a)(2)(B), (a)(2)(C), (a)(2)(D), and not by
treating defendants as part of a class that is defined solely by the offense of
conviction. See Kelly, 625 F.3d at 519-20.
Morais’s conduct is more egregious than anything described in Crume or
Wiedower: he collected 8,200 images of child pornography over more than a decade.
PSR ¶ 23. The images were in large part downloaded from the Internet, and they
depicted children ranging in age from 3 to 13 years. Id. ¶¶ 20, 23. The district court
found that the offense involved material that portrays sadistic or masochistic conduct
or other depictions of violence. Id. ¶ 33; S. Tr. 135. There was also reason for the
court to be concerned about incorrigibility. Morais’s own expert, Dr. Stone, testified
that Morais was diagnosed with autism and a compulsive nature, and that without
successful treatment, Morais was likely to repeat the same conduct. S. Tr. 95-97.
The Eleventh Circuit thought a restriction on Internet use without prior approval was
sufficiently narrow for a defendant who possessed over 4,000 images of child
pornography, United States v. Zinn, 321 F.3d 1084, 1093 & n.11 (11th Cir. 2003),
noting that “the particular facts of this case highlight the concomitant dangers of the
Internet and the need to protect both the public and sex offenders themselves from its
potential abuses.” Id. at 1093. We reach the same conclusion with respect to Morais.
Cf. United States v. Lantz, 443 F. App’x 135, 144 (6th Cir. 2011) (“[T]here are many
cases that have struck down internet bans of various types because the sentencing
conduct involved ‘only’ possession of child pornography, and not something more
heinous. This circuit is not part of that ‘consensus,’ and we will not join today.”).
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The special condition at issue here is not a complete ban on use of the Internet.
With prior approval of the probation office, Morais may access the Internet for
legitimate purposes of research, communication, and commerce. Given the
importance of the Internet as a resource, we expect that the probation office will not
arbitrarily refuse such approval when it is reasonably requested and when appropriate
safeguards are available. But we conclude that the condition requiring prior approval
does not involve a greater deprivation of liberty than is reasonably necessary to
protect the public and to deter criminal activity in light of the record in this case.
* * *
The judgment of the district court is affirmed with respect to the term of
imprisonment, the fine, and special condition four of supervised release. We remand
with instructions to amend the written judgment to conform to the district court’s oral
pronouncement of special condition one.
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