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United States v. Dallman

United States Court of Appeals, Eighth Circuit

April 11, 2018

United States of America Plaintiff- Appellee
v.
Mark Richard Dallman Defendant-Appellant

          Submitted: February 12, 2018

          Appeal from United States District Court for the Western District of Missouri - Springfield

          Before LOKEN, BENTON, and ERICKSON, Circuit Judges.

          ERICKSON, CIRCUIT JUDGE.

         Mark Richard Dallman pled guilty to one count of failure to register as a sex offender after traveling in interstate commerce in violation of the Sex Offender Registration and Notification Act, 18 U.S.C. § 2250(a). The district court[1] sentenced Dallman to time served followed by a lifetime of supervised release.

         Dallman challenges a special condition prohibiting him from possessing or using any electronic device with internet access without the prior approval of his probation officer. While we have jurisdiction under 28 U.S.C. § 1291, we dismiss this appeal because Dallman knowingly and voluntarily entered a plea agreement waiving his right to appeal.

         I. Background

         Because Dallman was convicted of Class A felony rape of a child in Washington in 1997, he is required to register as a sex offender for the rest of his life. In August 2013, the United States Marshal's Service became aware that Dallman was living at an RV park in West Plains, Missouri, without having registered as a sex offender. Members of the local sheriff's department went to Dallman's residence where he presented a Missouri driver's license bearing the name John Monroe Sanders, a Missouri man who died in 1971. An investigation showed that Dallman had been using Sanders's name since at least 2007, [2] having used the internet to discover the identity of a young man who had died without survivors. Dallman had been residing as Sanders at the RV park for approximately 18 months. The officers arrested Dallman as an unregistered sex offender.[3]

         After Dallman's arrest, a search was conducted on his computer, which revealed a video of child pornography. The search of the computer was challenging because the computer was organized in a highly complicated manner with multiple partitions, operating systems, and hard drives.

         Dallman was charged in three counts: failure to register as a sex offender, possession of child pornography, and receipt and distribution of child pornography. On November 17, 2016, Dallman pled guilty pursuant to a plea agreement to Count One, failure to register as a sex offender. The two child pornography counts were dismissed following a successful motion to suppress the search of the computer. Dallman's plea agreement includes the following appeal waiver:

The defendant expressly waives his right to appeal his sentence, directly or collaterally, on any ground except claims of . . . (3) an illegal sentence. An "illegal sentence" includes a sentence imposed in excess of the statutory maximum, but does not include less serious sentencing errors, such as a misapplication of the Sentencing Guidelines, an abuse of discretion, or the imposition of an unreasonable sentence.

         The district court sentenced Dallman to time served followed by supervised release for life. He objected to special condition (m), which prohibits the possession or use of an electronic device with internet access without prior approval from a probation officer. Dallman requested that he be allowed to access religious materials and contact friends and family via the internet. The court was unpersuaded, noting that Dallman "has undergone a persistent pattern of efforts to avoid his responsibilities to register as a sex offender." The court specifically noted that it was not inclined to modify special condition (m) because the "problem is that we have [a] probation office with limited resources and it's a lot harder to keep track of someone as to exactly what they're doing on a computer than it is to tell them just don't have a computer."

         In spite of the court's inclination, it slightly modified special condition (m):

The defendant shall not possess or use any computer or electronic device with access to any 'on-line computer service' without the prior approval of the Probation Office. This includes any public or private computer network. The Probation Officer shall attempt to allow the defendant computer access as necessary to participate ...

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