United States v. Alphonzo Wright

529 F. App'x 553
CourtCourt of Appeals for the Sixth Circuit
DecidedJune 28, 2013
Docket12-5843
StatusUnpublished
Cited by3 cases

This text of 529 F. App'x 553 (United States v. Alphonzo Wright) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth 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. Alphonzo Wright, 529 F. App'x 553 (6th Cir. 2013).

Opinion

OPINION

ALAN E. NORRIS, Circuit Judge.

Defendant Alphonzo Wright pleaded guilty to one count of transporting child pornography in interstate commerce in violation of 18 U.S.C. § 2252(a)(1), and to one count of possession of a computer containing child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). He received a sentence of 144 months of incarceration, which he does not challenge on appeal. However, he contends that the district court abused its discretion when it imposed these conditions as part of his ten-year term of supervised release: 1) being forbidden to reside with any child under the age of 18; 2) submitting to periodic urinalysis tests as directed by his probation officer; 3) being barred from using a computer that has internet access without the prior approval of his probation officer; and 4) having to abide by a curfew as set by his probation officer.

I.

In March of 2011, the Bradley County, Tennessee Sheriffs Department began an online investigation as part of an initiative to undercover those consuming or trafficking in child pornography. The investigation led officers to defendant and his computer, which contained a sizable number of illegal images. Defendant pleaded guilty to two counts of a three-count indictment, and also agreed to a forfeiture provision. *555 At the time of the arrest, defendant was 45 years-old, unmarried, employed, and without any prior convictions.

II.

When defense counsel lodges a timely objection to a term of supervised release, we review the district court’s decision with respect to that term for an abuse of discretion. United States v. Carter, 463 F.3d 526, 528 (6th Cir.2006). Finding such an abuse requires us to have a definite conviction that the district court “committed a clear error ofjudgment.” Id. (quoting United States ex rel. A + Homecare, Inc. v. Medshares Mgmt. Group, Inc., 400 F.3d 428, 450 (6th Cir.2005)). However, when defense counsel fails to raise an objection, our review is for plain error. United States v. Butler, 297 F.3d 505, 517 (6th Cir.2002). Plain error requires a showing that there was error, that was plain, and that it affected the substantial rights of the accused. Id.

We now turn to each of the four conditions of his supervised release challenged by defendant.

1. Residence with a Minor

The order of supervised release contains this condition:

The defendant shall not directly or indirectly have any contact with any child under age 18; shall not reside with any child under the age of 18; and shall not loiter near school yards, playgrounds, swimming pools, arcades or other places frequented by children.

At sentencing defense counsel lodged this objection: “we would object to that [provision] because ... there’s a chance that it would prohibit him from actually residing with someone in a family environment should he decide to marry and have children within that period of supervised release, then he may not be able to live with his own child.”

The district court responded that the condition does not preclude him from marrying or living with his child: “[the condition] is not designed to preclude him from marrying and having children of his own with whom he would reside provided that everything is subject to the supervision of the probation officer.” However, the judgment itself does not explicitly reflect that exception to the condition.

First, we must determine whether this condition is ripe for review. In United States v. Lee, 502 F.3d 447, 450 (6th Cir.2007), we held that a special condition is not ripe for review when there is a likelihood that it may not be imposed. The government contends that defendant’s age, the fact that he has a lengthy sentence ahead of him, and that he has never married, or fathered children, means that the challenged condition may never take effect. Furthermore, if it does, then defendant may request that the district court modify this condition pursuant to 18 U.S.C. § 3583(e). While we agree that this argument has some force, another decision of this court, which is factually closer to the instant ease, suggests that defendant’s condition is ripe for appeal. United States v. Zobel, 696 F.3d 558, 573 (6th Cir.2012) (conditions of supervised release may be ripe for review at imposition of sentence unless the challenged condition is “potential, rather than mandatory”) (citing Lee). In Zobel, as in this case, the defendant challenged a condition that barred him from having contact with any person under the age of 18 unless the minor’s parent is present or has been notified of his sex offense, arguing that “this condition would restrict his ability to have contact with his own children, should he one day become a father.” Id. at 574. In holding that the issue was ripe for review, we distinguished *556 Lee and reasoned: “Zobel’s conditions do not include anything akin to the potential use of a penile plethysmograph [the condition challenged by Lee], and indeed are not potential at all. Rather they are mandatory.” Id. at 57B. Zobel is indistinguishable from the instant case and we therefore hold that defendant’s challenge is ripe for review.

Turning to the merits, we are aided by a Third Circuit decision. United States v. Loy, 237 F.3d 251 (3d Cir.2001). Once again, the trial court imposed as a condition of supervised release that defendant was prohibited from having unsupervised contact with minors. Although he had no children, defendant argued that the condition “might deter him from exercising his constitutional right to procreation.” Id. at 269. The Third Circuit resolved the matter in this manner:

There is certainly a legitimate question as to whether the record would support a finding that Loy represents a threat to an infant child of his own. But it is unnecessary to decide this question, because we believe it unlikely that the District Court intended its condition to extend so far. Given the severe intrusion on Loy’s family life that would otherwise result, we believe that, absent a clearer sign from the District Court, the condition should be construed to apply only to other people’s children, and not to Loy’s own.

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Related

United States v. Sean Widmer
785 F.3d 200 (Sixth Circuit, 2015)

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Bluebook (online)
529 F. App'x 553, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-alphonzo-wright-ca6-2013.