United States v. Albertson

645 F.3d 191, 2011 U.S. App. LEXIS 9106, 2011 WL 1662786
CourtCourt of Appeals for the Third Circuit
DecidedMay 4, 2011
Docket09-1049
StatusPublished
Cited by80 cases

This text of 645 F.3d 191 (United States v. Albertson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Albertson, 645 F.3d 191, 2011 U.S. App. LEXIS 9106, 2011 WL 1662786 (3d Cir. 2011).

Opinion

OPINION OF THE COURT

AMBRO, Circuit Judge.

We consider once again what are appropriate computer-related supervised release conditions for child pornography offenders. Appellant Randy Albertson pled guilty to one count of receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2)(B). The District Court sentenced him to 60 months’ imprisonment (the minimum mandated) and 20 years’ supervised release with eight special conditions. On appeal, Albertson challenges the reasonableness of the 20-year term and three of the special conditions of his supervised release, including a restriction on internet access, mandatory computer monitoring, and a restriction on his association with minors. As we agree with Albertson only that a wholesale ban on his internet use is broader than necessary to accomplish the sentencing goals of 18 U.S.C. § 3553(a), we affirm the duration of the supervised release term and the association-with-minors restriction, vacate and remand the internet restriction, and remand the monitoring requirement for adaption to a more tailored internet restriction.

I. Background

Albertson’s problem with child pornography surfaced in 2005 when his wife discovered a pornographic image in his dresser drawer. Despite the family’s efforts to monitor his computer access thereafter, Albertson, a former prison guard, continued viewing child porn online. In addition, in 2006, Albertson’s wife (they are now divorced) reported to the local police that he had molested her teenaged daughter (his then-stepdaughter). 1 Consequently, the police searched the family computer. They found over 700 images of child porn, some of which featured pre-pubescent children.

Albertson was charged in a two-count superseding indictment with receipt and possession of child pornography, in viola *194 tion of 18 U.S.C. § 2252A(a)(2)(B) and 18 U.S.C. § 2252A(a)(5)(B). He pled guilty to the receipt count and stipulated to 39 pornographic images. Receipt of child porn carries a mandatory minimum of five years’ imprisonment, 18 U.S.C. § 2252A(b)(l), and that minimum was the jail term imposed here. Five years’ supervised release is also required. 18 U.S.C. § 3583(k). In the plea, the parties agreed to a supervised release term of up to 25 years (with the parties able to argue at sentencing the appropriate term).

At his 2008 sentencing hearing, Albert-son himself argued to the Court as follows:

I found court cases — and this is through a Yoeker (phonetic) case that I found that involves two individuals, a Crandon and a Lloyd (phonetic), both received out of the Third Circuit here under five year sentences for supervised release, the Lloyd being, they’re — from what I’ve read out of their cases, you know, they don’t even compare to my case, my background, or anything that I have ever done as far as law enforcement is concerned. I ask that you, you know, review that and think about even less time than five years [of supervised release] because those two cases, Crandon and Lloyd, they got less than five out of this district. I ask for the same thing.

The Government requested the maximum supervised release term permitted by the plea agreement — 25 years. It stated the nature of the offense and the relevant conduct — that over 700 pornographic images were found (including prepubescent images) on Albertson’s computer, his wife’s discovery of an image, and his failure to abide by his family’s informal restrictions on his computer use.

After imposing the 60-month prison term, the Court decided on a 20-year term of supervised release with eight special conditions. Its primary considerations were the seriousness of the offense, the goal of “deter[ring Albertson’s] conduct in the future,” and the need “to protect the public.” On these bases, it found “that an extended term of supervised release is appropriate.”

Albertson appeals three of the special conditions. 2 He was: banned from “associating] with children under the age of 18 (with the exception of his children) except in the presence of an adult who has been approved by the Probation Officer” (Special Condition 4); barred from “us[ing] a computer with access to any ‘on-line computer service’ without the prior written approval of the probation officer” (Special Condition 5); and required to submit to an initial inspection, and subsequent inspections, of his computer and to allow the installation of monitoring or filtering software (Special Condition 7). The District Court did not discuss the details of these conditions nor did it provide specific reasons for imposing them. On appeal, Albertson argues they subject him to a greater deprivation of liberty than necessary. He relies principally on our decision in United States v. Miller, 594 F.3d 172 (3d Cir.2010). There, as here, we were confronted with a ban on internet use that was imposed on a child porn offender as a special condition of his supervised release. We concluded that the internet ban— which was imposed for life — was over-broad.

II. Waiver

In his opening brief, Albertson argues solely that the 20-year supervised release *195 term is unreasonable. He neither raises nor refers to the conditions of his supervised release. It is only in his reply brief that he addresses those conditions and argues they are unlawful in light of Miller. Thus, we address a threshold question of waiver.

Albertson’s reason for his untimeliness was that our decision in Miller was filed one day after his opening brief. He informed us that it had not occurred to him to challenge his conditions prior to our analysis in that case. According to the Government, however, Albertson’s failure to challenge the conditions of his supervised release in his opening brief waived the argument. It urged us to strike the reply brief or, at least, consider the argument waived. Rather than strike the reply, we granted the Government’s request to file a surreply.

It is standard practice that an appellant must state all issues raised on appeal in the opening brief. See Fed. R.App. P. 28(a)(5); Third Cir. Local App. R. 28.1(a)(1). Indeed, it is essential to our review that the appellant properly present all issues in his opening brief. “It is well settled that an appellant’s failure to identify or argue an issue in his opening brief constitutes waiver of that issue on appeal.” United States v. Pelullo,

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Bluebook (online)
645 F.3d 191, 2011 U.S. App. LEXIS 9106, 2011 WL 1662786, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-albertson-ca3-2011.