NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 11-4242
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UNITED STATES OF AMERICA
v.
JACK UNDERWOOD,
Appellant
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On Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal No. 1-09-cr-00471-001)
District Judge: Honorable Renee M. Bumb
___________
Submitted Under Third Circuit L.A.R. 34.1(a)
September 27, 2012
Before: McKEE, Chief Judge, JORDAN AND VANAKSIE, Circuit Judges
(Filed: December 19, 2012)
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OPINION
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VANASKIE, Circuit Judge.
Jack Underwood pled guilty to knowing possession of material containing child
pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). He received a below-
guidelines prison term of 54 months and a supervised release term of life. The conditions
of supervised release included a five year restriction on use of computers. Underwood
appeals, arguing that the District Court erred in declining to grant a greater downward
variance to avoid unwarranted sentencing disparities under 18 U.S.C. § 3553(a)(6), in
imposing a lifetime term of supervision, and in establishing what he characterizes as a
five-year ban on use of the internet. We reject Underwood‟s arguments, and will affirm
the District Court‟s judgment.
I.
We write primarily for the parties, who are familiar with the facts and procedural
history of this case. Accordingly, we set forth only those facts necessary to our analysis.
In August of 2007, as part of a joint local, county, state, and federal investigation,
the New Jersey Police Internet Crimes Against Children Task Force searched file sharing
networks for terms associated with child pornography. On one network, investigators
discovered “several files indicative of child rape.” (PSR 14-15). The IP address
associated with those files was registered to Ronald Ross. On October 1, 2007, law
enforcement officers executed a search warrant at Ross‟ residence. Ross, a convicted sex
offender, was permitting Underwood to reside in his home at the time the search warrant
was executed. Underwood admitted that he searched the internet for child pornography
and had downloaded material onto his computer. Law enforcement officers searched
Underwood‟s computer and found 20 videos containing child pornography. One of the
videos ran 50 minutes in length, depicting an instructional video on how to groom a child
to be sexually abused.
Underwood eventually was charged in a one-count indictment with possession of
child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). He pled guilty on May
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12, 2010. In a sentencing memorandum, Underwood requested a sentence of 18 months‟
imprisonment. Underwood argued for this substantial downward variance from his
advisory guidelines range of 78 to 97 months based on his difficult childhood. He also
sought a downward variance based upon the relatively short prison terms received by
others who were apprehended as a result of the task force investigation and prosecuted
for state child pornography crimes.1 In response, the Government requested a within
Guidelines sentence.
Underwood‟s initial sentencing hearing commenced on March 8, 2011.
Underwood acknowledged that the advisory guidelines imprisonment range was correctly
set at 78 to 97 months, and pursued his request for a substantial downward variance. The
initial sentencing hearing was adjourned to allow Underwood to gather and present the
sentencing court with additional information on his sentencing disparity argument.
On September 15, 2001, Underwood submitted supplemental materials to the
Court, but they contained no additional information in support of his sentencing disparity
argument. On November 17, 2011, the sentencing hearing re-commenced. Underwood
requested a below guidelines sentence of 30 months based on his extraordinarily difficult
childhood and the need to avoid unwarranted sentencing disparities.
On November 17, 2011, the District Court sentenced Underwood to 54 months‟
imprisonment, followed by a lifetime term of supervised release, and a five-year
1
Underwood also sought a downward variance by attacking the Guidelines
provision applicable to possession of child pornography, U.S.S.G. § 2G2.2. The District
Court declined to reduce Underwood‟s sentence on this ground, explaining that it had no
policy disagreement with the child pornography guidelines. Underwood has not pursued
this argument on appeal.
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computer-use restriction. Although finding that Underwood‟s personal history and
characteristics justified a sentence below the guideline range, the District Court
concluded that Underwood had not satisfied his burden of showing he was similarly
situated to others charged as a result of the Task Force investigation, and denied his
request for a downward variance on the grounds of unwarranted sentencing disparities.
The District Court also extensively discussed the duration and conditions of
Underwood‟s supervised release. The District Court explained that the lifetime term and
five-year restriction on computer use were reasonable based on (1) Underwood‟s
possession of the graphic tutorial video; (2) the progression of his initial interest in adult
pornography available on the internet to an interest in child pornography; (3) the absence
of a family or social support network; (4) his disrespect for the law while on pretrial
release; and (5) his need for treatment as evidenced by his forensic evaluation. The
District Court did note, though, that Underwood would be permitted to seek an
amendment to, or termination of, his supervised release term in the future.
II.
The District Court had jurisdiction under 18 U.S.C. § 3231, and we have appellate
jurisdiction under 28 U.S.C. § 1291.
A.
Underwood does not challenge the calculation of his advisory guidelines range of
78 to 97 months‟ imprisonment. What he does challenge is the extent of the District
Court‟s downward variance. In this regard, he contends that the District Court failed to
give meaningful consideration to the sentencing factor set forth in 18 U.S.C. §
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3553(a)(6), asserting that the District Court erred procedurally by rejecting his request for
a downward variance to avoid unwarranted sentencing disparities between himself and
the other defendants apprehended and sentenced as a result of the child pornography task
force investigation.2
The Sentencing Court must consider “the need to avoid unwarranted sentence
disparities among defendants with similar records who have been found guilty of similar
conduct.” 18 U.S.C. § 3553(a)(6). The defendant bears the burden of establishing that he
is similarly situated to those other defendants “in terms of the extent of the crime,
charges, prior history, and jurisdiction.” United States v. Robinson, 603 F.3d 230, 234-
235 (3d Cir. 2010).
In an effort to satisfy his “similarly situated” burden, Underwood provided the
District Court with generalized information about the age and sentence of the other forty-
three individuals arrested in connection with the investigation. Of the younger persons
arrested, five were juveniles, one was 18-years-old, and five (including Underwood) were
19-years-old. Only two of the five young adults prosecuted in state court received prison
sentences, each receiving sentences of three-years but actually serving on average 12
months. Underwood was the only one of this group of young offenders prosecuted
federally. Among the adult defendants, only two were prosecuted federally, each
receiving 51-month sentences.
2
The Sentencing Court must consider the recommended guidelines range together
with the statutory factors listed in 18 U.S.C. § 3553(a). United States v. Booker, 543 U.S.
220, 258-59 (2005). This Court will review the Sentencing Court‟s consideration of the §
3553(a) factors for abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007).
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Underwood relies heavily on United States v. Arrelucea-Zamudio, 581 F.3d 142
(3d. Cir. 2009). Arrelucea-Zamudio pled guilty to illegal reentry into the United States,
in violation of 8 U.S.C. § 1326(a) and (b)(2). The District Court sentenced him to 48
months‟ imprisonment. On appeal, Arrelucea-Zamudio argued that he should receive a
downward variance because of the sentencing disparity between immigration defendants
in fast-track districts and non-fast-track districts. The Court in Arrelucea-Zumudio held,
in the context of sentencing disparities created by the existence of fast track and non-fast
track jurisdictions, that a defendant need not match himself to a specific defendant in
exactly the same circumstance as himself to warrant a downward variance.
Underwood emphasizes that showing other defendants possessed the same
materials as he did was unreasonable, because he had “no practical way of knowing or
showing what another defendant had downloaded or possessed.” (Appellant Br. at 20.)
In particular, he highlights that the disclosure of images in child pornography
prosecutions is tightly regulated under the Adam Walsh Child Protection and Safety Act
of 2008, 19 U.S.C. § 3509(m), so a federal defendant cannot obtain the images from
another defendant‟s prosecution. Accordingly, argues Underwood, it is virtually
impossible to show similarity in circumstances when the focus of the sentencing judge is
on the nature of the child pornography in the possession of the person being sentenced.
Underwood also contends that the District Court ignored the obvious similarities between
himself and the other offenders in denying a variance. Underwood argues that, because
the operation specifically targeted offenders using peer-to-peer file sharing sites to
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download and provide child pornography, the similarities are clear and he did not need to
show that the other offenders engaged in identical conduct.
Initially, it must be noted that Underwood has not presented any evidence that
suggests that he sought to obtain information about the nature of the child pornography
possessed by others who were prosecuted as a result of the task force‟s investigation.
While it may be impossible to obtain access to the images and videos, Underwood has
not shown that he was unable to secure narrative descriptions of the materials. In
particular, he has not shown that he sought to learn whether any of the comparators
possessed the highly offensive tutorial video. Moreover, when additional and more
specific information was requested by the District Court, Underwood failed to provide it.
Specifically, Underwood failed to show that any of the other individuals possessed the
instructional video for training child abusers or other sadistic or violent images such as
those found on his computer. Therefore, Underwood failed to establish that he was
similarly situated to the other defendants prosecuted as part of the task force
investigation.
Even assuming that he sought but was unable to obtain information that others
possessed equally outrageous materials, Underwood relied upon a universe of
comparators who, by definition, are not similarly situated to him because they were not
prosecuted federally. “Congress‟s primary goal in enacting § 3553(a)(6) was to promote
national uniformity in sentencing rather than uniformity among co-defendants in the
same case.” United States v. Parker, 462 F.3d 273, 277 (3d Cir 2006). The “„sole
concern‟ of §3553(a)(6) remains disparities among sentences of federal defendants,” not
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disparities between state and federal defendants. United States v. Begin, 696 F.3d 405,
412 (3d Cir. 2012). The fact that states may enforce their criminal sentencing schemes in
dissimilar fashions has no effect on the federal sentencing guidelines and § 3553(a)
factors. In fact, “[a]djusting federal sentences to conform to those imposed by the states
where the offenses occurred would not serve the purposes of § 3553(a)(6), but, rather,
would create disparities within the federal system, which is what § 3553(a)(6) is designed
to discourage.” Begin, 696 F.3d at 412 (citing United States v. Branson, 463 F.3d 1110,
1112 (10th Cir. 2006)). State court defendants, therefore, are not proper comparators for
sentencing disparities in the federal system, and Underwood‟s reliance upon sentences
imposed by the state court is unavailing.
The two remaining defendants, prosecuted federally, received sentences of 51
months‟ imprisonment. Underwood was sentenced to 54 months‟ imprisonment. A
three-month difference in prison terms is insufficient to establish an unwarranted
sentencing disparity among federal defendants.
The District Court extensively assessed the § 3553(a) factors in the context of the
facts of this case prior to imposing a sentence that was twenty-four months below the
minimum term in the advisory guidelines range. The District Court considered
Underwood‟s troubling upbringing, the disturbing nature of the materials found on
Underwood‟s computer, the amount of material found on his computer, his disrespect for
the law and the court while on pretrial release, the tremendous harm to the victims
evidenced in the Victim Impact Statements, and the need to protect both society and
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Underwood from the possibility of recidivism. We discern no error, procedural or
substantive, in the decision to sentence Underwood to prison for four and a half years.
B.
Underwood next argues that the District Court erred by imposing a lifetime term
of supervised release and a five-year internet restriction. Underwood did not object in
the District Court to either the duration or the conditions of supervised release. Where a
defendant fails to raise a claim of error in the District Court, we will review for plain
error. United States v. Maurer, 639 F.3d 72, 82 n. 9 (3d Cir. 2011). We employ a four-
prong test to determine whether the District Court committed plain error. Id. The
appellant must show “(1) that an error was committed; (2) the error was plain; (3) the
error affected the defendant‟s substantial rights; and (4) the error „seriously affects the
fairness, integrity, or public reputation of judicial proceedings.‟” Id. (quoting United
States v. Olano, 507 U.S. 725, 732-34)(1993)). Even if those requirements are satisfied,
this Court may deny a remedy. United States v. Tyson, 653 F.3d 192, 211 (3d Cir. 2011).
The terms and conditions of supervised release must impose “no greater
deprivation of liberty than is reasonably necessary.” United States v. Albertson, 645 F.3d
191, 197 (3d Cir. 2011) (quoting United States v. Pruden, 398 F.3d 241, 248 (3d Cir.
2005)) (internal quotation marks omitted). In deciding whether supervised release “is
overbroad,” this Court considers (1) “the scope of the condition, . . . with respect to
substantive breadth,” (2) the “duration” of the supervised release condition, (3) “„the
severity of the defendant‟s criminal conduct and the facts underlying the conviction,‟”
and, if applicable, (4) “the proportion of a supervised release restriction to the total period
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of restriction.” Id. at 198 (quoting United States v. Miller, 594 F.3d 172, 187 (3d Cir.
2010)).
Underwood first asserts that imposition of a lifetime term of supervised release
was plain error. First, as to factors one and two, Underwood contends that his “term
could not have been broader or longer.” (Appellant Br. at 27.) Regarding the third
factor, Underwood contends that his term of supervised release was disproportionate to
his crime, because although his crime was serious, it was not violent and it involved no
actual contact with a minor. He also emphasizes that he was immature at the time of his
offense, and that he intends to better his life upon release from prison. Regarding the
fourth factor, Underwood argues that the lifetime term of supervision is completely
disproportionate to the total period of restriction.
Underwood‟s statutory term of supervised release was five years to life. See 18
U.S.C. § 3583(k). The Sentencing Guidelines provide in a policy statement that “. . . the
statutory maximum term of [lifetime] supervised release is recommended” for those
individuals convicted of a sex offense. U.S.S.G. § 5D1.2(b)(2) (policy statement); see
U.S.S.G. § 5D1.2 cmt. n.1. The District Court explained that it imposed a lifetime term
of supervised release due to the disturbing nature of the videos on Underwood‟s
computer; his interest in both child and adult pornography; his lack of a social network
outside of Mr. Ross, a convicted sex offender; and his need for treatment as explained in
Underwood‟s forensic evaluation. Moreover, the District Court noted Underwood‟s
“addictive personality” and refusal to conform his actions to the law evidenced by
repeated use of illegal drugs while released on bail. (A. 85). The District Court noted the
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opportunity for Underwood to come back before the Court and petition for a reduction in
the duration of his supervised release if his behavior indicates supervision is no longer
necessary.
The District Court‟s statement reflects a careful assessment of the pertinent
factors. A lifetime term of supervised release is reasonable in view of the nature of
Underwood‟s crime, his acknowledged interest in child pornography, the nature of the
materials he possessed, his addictive traits, and the pertinent policy statement
recommending the maximum period of supervised release for this type of offense. See
United States v. Cope, 527 F.3d 944, 952 (9th Cir. 2008). Accordingly, the District
Court did not commit plain error in imposing a lifetime term of supervised release.
Next, Underwood argues that the District Court plainly erred by imposing a five-
year ban on internet access. This Court has recognized that “a complete ban on the use of
a computer and internet will rarely be sufficiently tailored to the § 3553(a) factors,” even
in child pornography cases. Albertson, 645 F.3d at 197 (finding that a twenty year ban on
internet access where the defendant downloaded over 700 images of child pornography
and allegedly molested his wife‟s teenage daughter was overly broad because Albertson
did not use the internet to actively communicate with or to solicit sexual contact with
children.) Although “a complete ban on internet access . . . may be permissibly imposed
temporarily on those offenders who have used or have clearly demonstrated a willingness
to use the internet as a direct instrument of physical harm,” Underwood did not
communicate or solicit sexual contact with minors via the internet. Id. at 197.
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Accordingly, Underwood argues that the District Court should have “consider[ed]
whether a tailored internet limitation [was] feasible.” Id. at 198.
Sentencing courts may impose special conditions of supervised release, so long as
those conditions are “„reasonably related to the factors set forth in § 3553(a)‟” and
“„involve no greater deprivation of liberty than is reasonably necessary‟ to deter future
crime, protect the public, and rehabilitate the defendant.” United States v. Thielemann,
575 F.3d 265, 272 (3d Cir. 2009) (quoting 18 U.S.C. § 3583(d)(1)-(2)). The Government
contends that the Court did not ban Underwood from internet use, but merely imposed a
limited computer monitoring restriction. The Government reasons that, although the
District Court initially used the word “ban” when referring to Underwood‟s internet
access, its remaining discussion of the internet limitation referred to it as a restriction.
The District Court made clear that it contemplated the restriction to be far less onerous
than a total ban. The Court explained that a “5-year limitation on the use of the internet”
was a “reasonable range of time,” and it was being imposed due to the possession of the
pedophile “tutorial” and evolving interest from adult pornography to child pornography.
(A. 89.)
The actual language used in formally imposing the sentence supports the
conclusion that the District Court intended to establish an internet monitoring restriction,
not a total ban. The District Court stated:
You shall submit to an initial inspection by the U.S. Probation
Office, and to any unannounced examination during
supervision of your computer equipment for a period of five
years. This includes, but is not limited to, personal computers,
personal digital assistants, entertainment consoles, cellular
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telephones and/or electronic media devices which [are] owned
or accessed by you. You shall allow the installation on your
computer of any hardware or software [systems] which
monitors computer use. You shall pay the cost of the computer
monitoring program. You shall abide by the standard
conditions of computer monitoring. Any dispute as to the
applicability of this condition shall be decided by the court.
(A. 93-94.)
It is thus evident that the District Court did not intend to impose a complete ban on
use of the internet for a period of five years. Moreover, Underwood does not challenge
the restrictions on computer use imposed in the formal pronouncement of his sentence.
Accordingly, Underwood is not entitled to relief on this ground.
III.
For the foregoing reasons, we will affirm the District Court‟s judgment.
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