United States Court of Appeals
For the Eighth Circuit
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No. 12-1118
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Jose Antonio Soto
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota - St. Paul
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Submitted: February 12, 2013
Filed: February 28, 2013
[Unpublished]
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Before WOLLMAN, BOWMAN, and GRUENDER, Circuit Judges.
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PER CURIAM.
Jose Antonio Soto appeals the district court’s judgment entered after he pleaded
guilty to producing child pornography, in violation of 18 U.S.C. § 2251(a) and (e).
The district court sentenced him to 360 months in prison. Soto’s counsel has moved
to withdraw and filed a brief under Anders v. California, 386 U.S. 738 (1967), arguing
that a downward variance from the Guidelines range was warranted because Soto was
abused as a child.
Upon careful review of the prison sentence, we conclude that the district court
committed no significant procedural error, properly considered and weighed
appropriate sentencing factors, and did not impose a substantively unreasonable
sentence. See United States v. Feemster, 572 F.3d 455, 460-62 (8th Cir. 2009) (en
banc) (appellate court’s review of sentence for abuse of discretion includes (1)
ensuring no significant procedural error occurred, and (2) considering substantive
reasonableness under totality of circumstances; court abuses discretion when it fails
to consider relevant factor, gives significant weight to irrelevant or improper factor,
or considers appropriate factors but commits clear error of judgment in weighing
factors).
Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75
(1988), however, we find that the district court plainly erred in imposing one special
condition of supervised release. See United States v. Simons, 614 F.3d 475, 478-79
(8th Cir. 2010) (plain-error standard). In special condition (d), the court ordered that
Soto could not possess “any material that contains nudity, depicts or alludes to sexual
activity, or depicts sexually arousing material,” and could not patronize any place of
business where such material was available. This court has held that a nearly identical
condition was unconstitutional, reasoning that it would have prohibited the defendant
from viewing a biology textbook, many art books, and the Bible, see United States v.
Kelly, 625 F.3d 516, 521-22 (8th Cir. 2010) (stating that “a convicted individual does
not shed his right to freedom of speech and religion under the First and Fourteenth
Amendments”), and has vacated the condition under plain-error review, see Simons,
614 F.3d at 483-85. Thus, the condition is invalid. We note that this court has upheld
a similar supervised-release condition that prohibited a defendant from possessing
child pornography, or photographic depictions of child nudity or of children engaged
in sexual activity. See United States v. Kelly, 677 F.3d 373, 375, 377-78 (8th Cir.
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2012) (finding that condition was less restrictive than those previously rejected, and
district court had made individualized finding that condition was related to
rehabilitative process).
Accordingly, we deny counsel’s motion to withdraw. The judgment of the
district court is affirmed in part and vacated in part. Special condition of supervised
release (d) is vacated, and the case is remanded for further proceedings consistent with
this opinion.
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