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United States v. Koch.

No. 19-8034. D.Wyo. Judge Murphy. Child Pornography Sentencing—Special Condition of Supervised Release—First Amendment—Plain Error.

October 5, 2020

Defendant pleaded guilty to receipt of child pornography. The presentence investigation report increased the offense level by five levels because defendant engaged in a pattern of activity involving the sexual abuse or exploitation of a minor. This background included a prior Indiana state felony conviction for child molesting and an ongoing investigation in Wyoming for sexual abuse of a minor. The district court sentenced defendant to a 20-year term of incarceration, followed by a 10-year term of supervised release. Without objection, the court also ordered defendant to comply with a “sexual material prohibition” special condition of supervised release, which extended to “sexually oriented and sexually stimulating images or messages.”

For the first time on appeal, defendant asserted that the district court erred in imposing the prohibition without first making particularized findings justified by compelling circumstances and based on an individual assessment of his case. Under US Supreme Court precedent, the First Amendment protects the rights of individuals to possess sexually explicit materials involving adults. This right is fundamental. When neither a statute nor a sentencing guideline requires or recommends a condition of supervised release, the sentencing court is expected to provide a reasoned basis for applying the condition to the specific defendant. And when a court imposes a special condition that invades a fundamental right or liberty interest, the court must justify the condition with compelling circumstances. Further, it is patently clear in the Tenth Circuit that before a district court can impose a special condition implicating a fundamental right it must set forth, on the record, defendant-specific findings that show a compelling interest.

Here, the district court did not analyze or explain how restricting access to non-pornographic sexually oriented materials would aid in defendant’s rehabilitation or protect the public. In the absence of any findings, it was impossible for defendant to contest and for the Tenth Circuit to resolve as a substantive matter whether the prohibition satisfied statutory imperatives or  served a compelling governmental interest. Accordingly, the district court erred, and the error was plain.

The sexual material prohibition was vacated and the case was remanded for further proceedings.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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