USCA11 Case: 20-12760 Date Filed: 07/29/2021 Page: 1 of 16
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
Nos. 20-12760, 20-14435 Non-Argument Calendar ________________________
D.C. Docket No. 6:19-cr-00220-CEM-GJK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES GROOVER,
Defendant-Appellant.
________________________
Appeals from the United States District Court for the Middle District of Florida ________________________
(July 29, 2021)
Before WILSON, MARTIN, and ROSENBAUM, Circuit Judges.
PER CURIAM: USCA11 Case: 20-12760 Date Filed: 07/29/2021 Page: 2 of 16
In this consolidated appeal, James Groover challenges the district court’s
imposition of a ban on his unapproved internet and computer usage and special
financial conditions as part of his supervised release after he was convicted of
transporting child pornography. He also challenges the district court’s order
requiring him to pay victim restitution. After careful consideration, we affirm.
I.
In 2020, Groover pled guilty without a plea agreement to one count of
knowingly transporting child pornography. Groover was arrested after the
government found thousands of images and videos of child pornography on his
electronic devices upon his return from a three-day cruise in the Bahamas. The
majority of the images and videos depicted prepubescent children, including
infants and toddlers, and some showed violent abuse of children. The government
also found a shortcut to a web-based document on Groover’s computer called
“Pedo Play Ground” which purported to teach the reader “how to have sex with
little girls . . . safely.” Groover obtained all these files on the internet, some of it
from the dark web.
Groover’s presentence investigation report (“PSR”) indicated that he had a
number of previous convictions, including a 2006 conviction in Canada for
possession of child pornography which he also accessed via computer. Groover
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was sentenced to fourteen days’ imprisonment and three years of probation for that
offense and he violated the conditions of that probation in late 2006.
Groover’s PSR also indicated that certain special conditions may be
warranted, including financial monitoring and a prohibition on possessing or using
a computer without prior written approval of the probation officer. The probation
office explained that the financial monitoring is meant to “allow more effective
monitoring of the defendant’s conduct and aid in detecting purchases of devices
capable of connecting to the internet.” In other words, the financial monitoring is
designed to help enforce the computer use restriction. Finally, the PSR pointed out
that victim restitution would be mandatory in this case and that the creation of the
material that Groover possessed “undoubtedly inflicted harm [on] the children who
endured the sexual assaults depicted in the images and videos.”
At the sentencing hearing, Groover claimed that he had accidentally
accessed child pornography on the dark web while doing biblical research as part
of his studies for his doctorate in theology. The district court did not find this
statement credible. The district court pointed out that Groover had previously been
convicted of possessing child pornography, and that the enormous volume and
particularly disturbing nature of the child pornography that formed the basis of his
instant conviction and the fact that he could not go on a three-day cruise without
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access to this material belied his statement that he had accidentally stumbled upon
the child pornography.
Groover objected to both the financial monitoring and the computer use
restriction conditions. He argued that using monitoring software on his devices
would be a less restrictive means of ensuring that he did not access child
pornography in the future. He objected to the financial conditions on the grounds
that his offense was not financial in nature.
At the sentencing hearing, Groover also conceded that he owed restitution to
the abuse victims of whom he possessed images and video recordings. He
objected to the amount of restitution the government proposed and encouraged the
district court to impose an amount in the “hundreds” of dollars rather than the
thousands.
The district court overruled Groover’s objections and sentenced him to 188
months’ imprisonment to be followed by 10 years’ supervised release, and
included the special computer use restriction and financial conditions.
Specifically, Groover would be subject to two forms of financial monitoring: (1)
prohibiting Groover from opening new lines of credit or taking on debt to make
major purchases without prior approval from probation; and (2) requiring Groover
to provide his probation officer access to any requested financial information. And
he would not be permitted to use or possess any computer or device capable of
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connecting to the internet without prior written approval of the probation officer.
The district court explained that the financial conditions would help the
government monitor if and when Groover obtained devices that could connect to
the internet. Of course, monitoring software only works to the extent the
government knows about the devices that Groover has and the financial monitoring
ensures Groover cannot obtain such a device without the government’s knowledge.
The district court further explained that the computer use restriction was justified
based on Groover’s prior child pornography conviction and the fact that he
violated the conditions of probation for that offense. The specifics of Groover’s
case, including: the volume and nature of the child pornography he possessed; the
disturbing “Pedo Play Ground” manual which suggested he had intentions beyond
viewing child pornography; the fact that he used the dark web to access child
pornography (which is extremely difficult to monitor); and his disingenuous
statement at his sentencing hearing that he merely stumbled onto the dark web,
also supported a need to strictly limit Groover’s computer access to usage
approved by his probation officer.
At the sentencing hearing, the district court also stated that the financial
monitoring conditions were “standard language,” and the government said that this
type of monitoring was “typically recommend[ed]” in child pornography cases.
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The written judgment included the special financial and computer use conditions in
a section separate and apart from the standard conditions.
Following the sentencing hearing, the district court held a hearing about
restitution. The government presented evidence that they had identified two of the
victims depicted in the materials Groover possessed, Pia and Andy, 1 both of whom
made restitution claims. Pia was four years old at the time that she was abused and
photographed. Still a minor,2 Pia now suffers from depression, anxiety, stress
disorder, educational difficulties, and suicidal ideation. A psychological
evaluation determined that the lifetime costs of her care and treatment are between
$286,000 and $323,000. The abuse depicted in the eight images Groover had of
Pia was extreme, but because Groover did not produce or distribute the images, the
government proposed that a restitution order of $5,000 was appropriate.
Andy was sexually abused for several years starting from the time he was six
years old. Andy now suffers from depression, anxiety, difficulties in school, and
substance abuse. The costs of his continued treatment are estimated at $267,038
and his lost future income at $1,854,925. The videos of Andy’s prolonged abuse
are some of the most widely distributed pieces of child pornography on the
1 ‘Pia’ and ‘Andy’ are pseudonyms. 2 Because she is still a minor, Pia’s future lost income could not be quantified at the time she made the restitution claim. 6 USCA11 Case: 20-12760 Date Filed: 07/29/2021 Page: 7 of 16
internet. Groover transported two images of Andy which again depicted extreme
sexual abuse of a young child. However, again in recognition of the fact that
Groover neither produced nor distributed the images, the government requested
only the mandatory minimum $3,000 restitution award.
Groover argued that the requested restitution was too high in light of the
limited role he played in Andy and Pia’s losses. Groover offered evidence
showing that of the images and videos of Pia and Andy he possessed, only one
video of Andy had been opened for a “maximum of 26 seconds,” and no evidence
that any of the other materials depicting these two victims had been opened. He
also suggested that the government failed to prove the identity of the victims, but
did not lodge an objection on that ground nor did he identify any discovery he did
not receive.
Pursuant to 18 U.S.C. § 2259, the district court ordered Groover to pay
$5,000 in restitution to Pia and $3,000 to Andy. The district court explained that,
as to Pia, the restitution order was justified by the number of images Groover
possessed of her and the “compounding effect” his possession had on the harm she
suffered. As to Andy, the district court stated that because the images of his abuse
are so widespread, Groover’s role in causing the harm he suffered was reduced,
which explained the lower restitution order.
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Groover timely appealed both the supervised release sentence and the
restitution order. This Court consolidated Groover’s appeals of his sentence and
the restitution order. On appeal, Groover raises two challenges to the conditions of
his supervised release and two challenges to the restitution order. We begin with
the challenges to the conditions of his supervised release before addressing the
challenges to his restitution order.
II.
Groover first argues that the district court erred by imposing a special
condition prohibiting him from using or owning a computer without prior written
approval from his probation officer. We review the imposition of a special
condition of supervised release for an abuse of discretion. United States v. Taylor,
338 F.3d 1280, 1283 (11th Cir. 2003) (per curiam). A district court abuses its
discretion when it applies an incorrect legal standard, follows improper procedures
in making the determination, or makes findings of fact that are clearly erroneous.
United States v. Khan, 794 F.3d 1288, 1293 (11th Cir. 2015). A finding is clearly
erroneous when we are “left with a definite and firm conviction that a mistake has
been committed.” United States v. Almedina, 686 F.3d 1312, 1315 (11th Cir.
2012) (quotation marks omitted). Generally, we do not consider evidence not in
the record. United States v. Trader, 981 F.3d 961, 969 (11th Cir. 2020).
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When imposing a special condition, the district court must consider whether
it: “(1) is reasonably related to the [18 U.S.C.] § 3553(a) factors; (2) involves no
greater deprivation of liberty than is reasonably necessary to serve the purposes of
punishment specified in § 3553(a)(2); and (3) is consistent with any pertinent
policy statements issued by the Sentencing Commission.” United States v.
Carpenter, 803 F.3d 1224, 1238 (11th Cir. 2015) (quotation marks omitted and
alteration adopted). The § 3553(a) factors include the nature and circumstances of
the offense, the history and characteristics of the defendant, the need for the
sentence imposed to afford adequate deterrence to criminal conduct, and the need
to protect the public from further crimes of the defendant. 18 U.S.C. § 3553(a)(1),
(a)(2)(B)–(C). The United States Sentencing Guidelines recommend a computer
use restriction for defendants who commit sex offenses by using a computer.
USSG § 5D1.3(d)(7)(B); id. § 5D1.2 cmt. n.1(A)(ii) (defining sex offense).
This Court has “uniformly upheld conditions prohibiting defendants
convicted of sex offenses from accessing a computer or the Internet for the
duration of their supervised release.” Carpenter, 803 F.3d at 1239. We clarified
that such a restriction is not overly broad when the defendant is permitted to use
the internet for valid purposes after obtaining prior approval from his probation
officer. United States v. Zinn, 321 F.3d 1084, 1093 (11th Cir. 2003). And we
have noted that this special restriction is “undeniably related” to the § 3553(a)
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factors where the defendant “use[s] the internet as [a] tool” in the underlying
offense. Taylor, 338 F.3d at 1285.
Groover relies primarily on two sources to overcome the weight of this
Court’s precedent approving computer use restrictions for sex offenders. First, he
cites statistics demonstrating the ubiquity of the internet in modern life. Second,
he cites out-of-circuit precedent that determined that highly restrictive computer
and internet use restrictions are impermissible. Groover argues that this Court’s
precedent is simply outdated given the increasingly important role that the internet
plays in society. He says the Supreme Court recognized this in Packingham v.
North Carolina, 582 U.S. __, 137 S. Ct. 1730, 1737 (2017) (noting that social
media websites are for many “the principal sources for knowing current events,
checking ads for employment, speaking and listening in the modern public square,
and otherwise exploring the vast realms of human thought and knowledge”).
There are a few problems with Groover’s arguments. First, the statistics
about internet usage that he cites are not in the record below and so we cannot
properly consider them. See Trader, 981 F.3d at 969. But even if we were to take
up Groover’s invitation to judicially notice “the indisputable fact that society’s
reliance on the internet and smart phones has increased over the last two decades,”
that would not support a determination that the district court abused its discretion.
Statistics alone do not displace binding precedent and we cannot say the district
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court applied an incorrect legal standard when it relied on binding caselaw
upholding similar computer use restrictions. Khan, 794 F.3d at 1293.
Nor did the district court abuse its discretion in determining that the
computer use restriction was not a greater deprivation of liberty than was necessary
in this case. Groover is not completely banned from using the internet; he may still
access it with prior approval from his probation officer. And the restriction is
reasonably related to the § 3553(a) factors. First, Groover admitted to accessing
child pornography via the dark web which is notoriously difficult to monitor.
Groover also had a previous conviction for possessing child pornography and the
circumstances of the present case indicated he could not go three days without
having access to child pornography. These facts go to his criminal history, his
characteristics, the nature of the offense, and the need to protect the public, all
relevant § 3553(a) factors. 18 U.S.C. § 3553(a)(1), (a)(2)(C).
Groover also challenges the special financial conditions that the district
court imposed. He makes two arguments about these conditions. First, he says the
district court erroneously treated them as standard, not special, conditions and
therefore failed to conduct the required analysis. Second, on the merits, he says the
financial conditions are overly restrictive and not related to his offense.
When a defendant raises a challenge to a special condition of supervised
release for the first time on appeal, we review that challenge for plain error only.
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Carpenter, 803 F.3d at 1237. While Groover did raise objections to the financial
conditions before the district court, he did not do so on the grounds that it
erroneously treated these conditions as standard. We therefore review this
argument for plain error. Under plain error review, the defendant must show that:
(1) an error occurred, (2) that was plain, and (3) that affected his substantial rights.
United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005).
Even assuming that the district court did erroneously view the financial
conditions as standard, 3 Groover cannot show that any error affected his substantial
rights because the district court conducted the required analysis for special
conditions. See Carpenter, 803 F.3d at 1238. The district court devoted significant
time to explaining that the special financial conditions were appropriate in this
specific case as a necessary measure to ensure compliance with the computer
restriction.
For the same reasons, the district court did not abuse its discretion in
imposing the special financial conditions. The financial conditions are related to
the § 3553(a) factors because both Groover’s child pornography convictions
involved use of a computer, and the financial conditions ensure compliance with
the use of a computer restriction. See id. at 1238; 18 U.S.C. § 3553(a)(1),
3 And even that proposition is questionable, as the district court referred to the financial conditions as special conditions when it orally imposed Groover’s sentence and in the written judgment. 12 USCA11 Case: 20-12760 Date Filed: 07/29/2021 Page: 13 of 16
(a)(2)(B)–(C). Further, the Sentencing Guidelines recommend both of the
financial conditions imposed in this case when a defendant is ordered to pay
restitution. USSG § 5D1.3(d)(2), (d)(3). And while the district court had not yet
imposed an order of restitution when it imposed these financial conditions,
restitution is mandatory in child pornography cases. See 18 U.S.C. § 2259(a).
And, for the reasons explained below, we affirm the district court’s restitution
order. The district court therefore did not abuse its discretion when it imposed the
special financial conditions.
III.
Groover raises two challenges to the district court’s restitution order. First,
he says the district court violated his Fifth and Sixth Amendment rights when it
found facts related to the identities of the victims, their losses, and the portion of
their losses that Groover proximately caused. Again here, and as an initial matter,
Groover did not raise this argument before the district court and therefore contends
that plain error review applies. “[T]here can be no plain error where there is no
precedent from the Supreme Court or this Court directly resolving it.” United
States v. Chau, 426 F.3d 1318, 1322 (11th Cir. 2005) (per curiam) (quotation
marks omitted).
In Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), the
Supreme Court determined that, “[o]ther than the fact of a prior conviction, any
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fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id.
at 490, 120 S. Ct. at 2362–63. Groover argues that because the facts related to the
identity of Pia and Andy, the harm they experienced, and what amount of that
harm Groover’s actions proximately caused raised his statutory maximum penalty
by requiring him to pay restitution at all, those facts should have been submitted to
a jury.
Additionally, Groover argues that the $3,000 statutory mandatory-minimum
restitution order is unconstitutional. He says that under Alleyne v. United States,
570 U.S. 99, 133 S. Ct. 2151 (2013), which requires that “any fact that increases
the mandatory minimum . . . must be submitted to the jury,” id. at 103, 133 S. Ct.
at 2155, any fact that subjected him to the mandatory minimum $3,000 restitution
order must have been submitted to a jury and proved beyond a reasonable doubt.
The problem for Groover is that he is not entitled to review of his Alleyne
and Apprendi arguments, because he invited any error the district court committed
in ordering restitution. The invited error doctrine precludes review of any error
that the defendant encouraged the district court to make. Carpenter, 803 F.3d at
1236. We have held that where a defendant “expressly acknowledge[s]” that the
district court could impose a particular form of punishment, the invited error
doctrine precludes review of the defendant’s challenge to the district court’s
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imposition of that punishment. United States v. Love, 449 F.3d 1154, 1157 (11th
Cir. 2006) (per curiam). Groover twice acknowledged that he owed restitution in
this case. First, at his sentencing hearing, he waived his personal appearance at the
restitution hearing and explicitly stated that he “agrees that he owes restitution.”
And at the restitution hearing, he asked the district court to impose a restitution
order, just that it be “in the hundreds, not the thousands” of dollars, on the ground
that the number of images he possessed of Pia and Andy and the documented time
viewing the images show lowered culpability. Because Groover never raised an
Apprendi or Alleyne challenge but instead agreed to pay restitution, we cannot
review his challenge to the restitution order on this basis. See id.
Finally, Groover argues that the district court erred when it failed to
disaggregate the losses that he personally caused the victims from the losses
caused by the initial abuse they suffered. Groover concedes that plain error review
applies to this argument because he did not raise it below. He also concedes that
this Court’s precedent forecloses his argument, as we explicitly rejected a
disaggregation requirement in United States v. Rothenberg, 923 F.3d 1309, 1333
(11th Cir. 2019) (“[W]e conclude that a district court is not required to determine,
calculate, or disaggregate the specific amount of loss caused by the original abuser-
creator or distributor of child pornography before it can decide the amount of the
victim’s losses caused by the later defendant who possesses and views the
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images.”). Groover says he can prevail even on plain error review because the
circuit split that exists over this issue has widened since we decided Rothenberg.
But to establish plain error, Groover would have to point to binding precedent from
this Court or the Supreme Court resolving the issue in his favor. Chau, 426 F.3d at
1322. Not only has Groover failed to do so, but there is precedent directly on point
that contradicts his position. See Rothenberg, 923 F.3d at 1333. Therefore, we
find no plain error here.
AFFIRMED.