United States v. Freeman

94 F. App'x 40
CourtCourt of Appeals for the Third Circuit
DecidedMarch 11, 2004
DocketNo. 03-1804
StatusPublished

This text of 94 F. App'x 40 (United States v. Freeman) 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. Freeman, 94 F. App'x 40 (3d Cir. 2004).

Opinion

OPINION OF THE COURT

PER CURIAM.

Appellant Robb Walker Freeman challenges the sentence he received from the district court on remand. Freeman’s appellate counsel moved for permission to withdraw as counsel because he could find no non-frivolous issues for appeal. He filed a supporting brief invoking Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Third Circuit Local Appellate Rule 109.2. The Clerk of the Court advised Freeman of his right to file a pro se brief raising any points that might support his appeal, but he did not do so.

The district court had jurisdiction under 18 U.S.C. § 3231. Our jurisdiction derives from the provisions of 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). Our independent review of the record convinces us that there are no issues of even arguable merit to be considered here, and we will accordingly grant counsel’s motion to withdraw and affirm the district court’s judgment of sentence.

I

This is the third time Freeman is before a panel of this court to challenge his sentence. Freeman pled guilty in March 2000 to receipt and possession of child pornography, in violation of 18 U.S.C. §§ 2252(a)(2) and (a)(4)(B). Freeman initially received a 72-month sentence, which was vacated (with the government’s consent) on his first appeal, to allow resentencing in accordance with a case decided after Freeman was sentenced, United States v. Galo, 239 F.3d 572 (3d Cir.2001).

On remand, as at the initial sentencing, the district court found that Freeman’s criminal history category did not reflect the seriousness of his criminal history and his likelihood of recidivism. Accordingly, under the United States Sentencing Guidelines (“U.S.S.G.”), the court departed upward, raising his Criminal History from Category I to Category III, resulting in a sentencing range of 63-78 months, and sentencing Freeman to 70 months imprisonment. The court also imposed a special condition on Freeman’s post-imprisonment supervised release, prohibiting him from having a computer in his home or from using any computer with on-line access without permission of his probation officer.

On Freeman’s second appeal, a panel of this court again remanded for resentencing. United States v. Freeman, 316 F.3d 386 (3d Cir.2003). That panel held that the district court did not follow the proper “ratcheting” procedure for upward departures; it should not have granted a two-category upward departure without first determining whether a one-category departure would suffice. Id. at 391 (citing United States v. Hickman, 991 F.2d 1110, 1114 (3d Cir.1993)) (“[T]he court is obliged to proceed sequentially through these categories. It may not move to the next higher category until it has found that a prior category still fails to adequately reflect the seriousness of the defendant’s past criminal conduct.”). The panel noted that the district court “was justifiably concerned about Freeman’s extensive molestation of children in the past and his likelihood of committing such crimes in the future.” It expressly stated that this decision did not “intimate that Category III is inappropriate,” noting that the court on remand [42]*42could “well find that Category II understates [Freeman’s] criminal history.” Id. The panel also ruled that the prohibition on Freeman’s computer use during his supervised release term was overbroad, and that the district court erred in failing to provide a statement of reasons for imposing this special condition. Id. at 391-92.

The facts were fully stated in our earlier opinion, id. at 387-89, and because we write only for the parties, it is unnecessary for us to restate them here.

II

On remand, the district court held a resentencing hearing on March 3, 2003, which was continued until March 14, 2003, to allow the parties to answer questions raised at the initial hearing and to further brief the government’s motion for an upward departure from Criminal History Category I to Criminal History Category II. On March 14, the district court granted that motion and issued a three-page order explaining its basis for holding that Criminal History Category I did not “adequately reflect the seriousness of [Freeman’s] past criminal conduct and the likelihood that he will commit other crimes.” Based on testimony and investigative reports admitted into evidence at earlier sentencing hearings, the court found, inter alia, that: (1) Freeman had two prior convictions for sexual misconduct (including one for sexual assault of a minor) that were not included in the criminal history calculation because of their age; (2) Freeman admitted to an undercover officer that he had recently photographed nude young boys for whom he was babysitting, showing “a continued willingness to exploit minors and violate the trust of their parents”; (3) Freeman showed the undercover agent the nude photographs of the young boys for whom he was babysitting, as well as “numerous child pornography photographs that he claimed to have taken himself’; (4) Freeman admitted to an undercover officer that he “had molested over 50 children in his life.”

The sentencing judge stated that Freeman’s “conduct demonstrates the likelihood that he will commit further crimes” and found him “a danger to the community.” The court held that Freeman’s “consistent pattern of exploitation of children” justified the requested upward departure. The judge further noted “it also would [depart upward] for any of the reasons set forth above individually.” The court explained that “had the defendant engaged in any of [those] acts of sexual misconduct ..., such conduct would warrant at least a 1-level upward departure to a category II, as that is the lowest possible criminal history category of similarly situated repeat offenders.” The judge found that Freeman’s “conduct in this case as well as his history of crimes against children warrants a sentence ... in the upper end of this guideline range” of 57 to 71 months. He sentenced Freeman to a 70-month term, the same sentence that was imposed after the first remand.

As required by the remand, the court also modified the earlier restrictions on Freeman’s computer use, imposing as specialized conditions of supervised release: (1) unannounced periodic inspections of computer equipment at his home and office, including removal of equipment if a “preliminary inspection” suggests that he used the equipment to access child pornography; (2) informing the probation department of all computers to which he has access and any internet provider he uses; (3) accepting installation of monitoring software on his personal and business computers; (4) “not us[ing] a computer to access any material involving child pornography, including pedophilia materials of all types, or depictions or descriptions of mi[43]

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Related

Anders v. California
386 U.S. 738 (Supreme Court, 1967)
United States v. Chris Hickman
991 F.2d 1110 (Third Circuit, 1993)
United States v. Donald Wayne Marvin
211 F.3d 778 (Third Circuit, 2000)
United States v. Andrew F. Galo
239 F.3d 572 (Third Circuit, 2001)
United States v. Ralph Pultrone
241 F.3d 306 (Third Circuit, 2001)
United States v. Robb Walker Freeman
316 F.3d 386 (Third Circuit, 2003)

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Bluebook (online)
94 F. App'x 40, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-freeman-ca3-2004.