US v. Isaac Smathers, Jr., No. 09-4091 (4th Cir. 2009)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4091 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ISAAC LEE SMATHERS, JR., Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Durham. Thomas David Schroeder, District Judge. (1:08-cr-00327-TDS-1) Submitted: November 2, 2009 Decided: November 13, 2009 Before MICHAEL, GREGORY, and DUNCAN, Circuit Judges. Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion. Benjamin D. Porter, MORROW ALEXANDER PORTER & WHITLEY, PLLC, Winston-Salem, North Carolina, for Appellant. Anna Mills Wagoner, United States Attorney, Michael A. DeFranco, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Isaac Lee Smathers, Jr., timely appeals from the 220month sentence and term of supervised release for life imposed following Smathers s exploitation (2006). of guilty minors, in plea to violation one of 18 count U.S.C. of sexual § 2251(a) Specifically, Smathers alleges that the district court erred in imposing a special condition of supervised release that forbids him from possess[ing] or us[ing] a personal computer or any other means to access any on-line computer service at any location (including employment) without the prior approval of the probation officer. This includes any Internet service provider, bulletin board system, or any other public or private computer network. We affirm Smathers s conviction, but vacate his sentence and remand for resentencing. District courts have conditions on supervised release. broad latitude to impose United States v. Dotson, 324 F.3d 256, 260 (4th Cir. 2003) (citation omitted). The court may impose any condition it deems appropriate, so long as it is reasonably related to: the nature and circumstances of the offense and the history and characteristics of the defendant; the need to afford adequate deterrence to criminal conduct; the need to protect the public from further crimes of the defendant; and the need to provide the defendant with needed educational or vocational training, 2 medical care, or other correctional treatment in the most effective manner. §§ 3553(a)(1), (a)(2)(B), (a)(2)(C), 18 U.S.C. (a)(2)(D), (2006); see also Dotson, 324 F.3d at 260. 3583(d)(1) The condition must not cause a greater deprivation of liberty than is reasonably necessary to achieve the above goals, 18 U.S.C. § 3583(d)(2), and must be statements. consistent with Sentencing Commission policy 18 U.S.C. § 3583(d)(3). Generally, we review the district court s imposition of special discretion. conditions of supervised Dotson, 324 F.3d at 259. release for abuse of However, because Smathers failed to object to the special condition in the district court, we review for plain error. See Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 731-32 (1993). To demonstrate plain error, a defendant must show that: (1) there was an error; (2) the error was plain; substantial rights. required to correct justice would and (3) the error affected Olano, 507 U.S. at 732. a plain otherwise error result, unless meaning a his We are not miscarriage that the of error seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id. at 736 (internal quotation marks, alteration, and citations omitted). In this case, it is uncontested that Smathers s crime did not involve a computer or the Internet. Nor is there any evidence that Smathers has a history of using the computer or 3 Internet to obtain or disseminate child pornography. Thus, we find that the district court plainly erred because the special condition is not reasonably related to the § 3553(a) factors identified above, nor is it in Commission s policy statement limiting use a the of line with the [a] recommending computer or an Sentencing condition interactive computer service in cases in which the defendant used such items in committing a sex offense. § 5D1.3(d)(7) (2008). U.S. Sentencing Guidelines Manual Additionally, we have held that [t]he terms and conditions of supervised release are a substantial imposition on a person s liberty. 285 F.3d 336, 342 (4th Cir. United States v. Maxwell, 2002). Thus, the erroneous imposition of a special condition of supervised release affected Smathers s substantial rights. Accordingly, we See id. affirm Smathers s conviction, vacate his sentence and remand for resentencing. but We dispense with oral argument because the facts and legal conclusions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED IN PART, VACATED IN PART, AND REMANDED 4

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