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United States v. Carson

United States Court of Appeals, Eighth Circuit

May 10, 2019

United States of America Plaintiff - Appellee
Kevin P. Carson Defendant-Appellant

          Submitted: November 12, 2018

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

          Before GRUENDER, KELLY, and GRASZ, Circuit Judges.

          GRASZ, Circuit Judge.

         Kevin Carson pled guilty to the receipt, possession, and attempted distribution of child pornography. The district court[1] sentenced Carson to 20 years of imprisonment followed by a life term of supervised release. Carson appeals, arguing the district court failed to explain the basis for his life term of supervised release and erred in imposing certain special conditions on his supervision. We affirm.


         In 2013, an FBI officer downloaded child pornography from two IP addresses assigned to a residence associated with Carson. FBI officers executed a search warrant at the residence, where Carson admitted to using a file sharing program to download and share child pornography. He also admitted to using his cellphone to take pictures of himself and a sixteen-year-old girl having sex. The officers seized Carson's electronics (a laptop, cell phone, and hard drive), on which they discovered 593 still images and 99 videos mostly depicting child bondage and bestiality, including a horrifying image of a female infant being raped by an adult male. Carson also later admitted to exchanging sexually-explicit photos with five girls between the ages of fourteen and seventeen and emailing child pornography to a sixth girl.

         Carson pled guilty to one count of receiving child pornography and two counts of attempting to distribute child pornography in violation of 18 U.S.C. § 2252(a)(2), and one count of possessing child pornography in violation of 18 U.S.C. § 2252(a)(4). The district court imposed the statutory maximum prison term on each count but allowed them to run concurrently, resulting in a total prison term of 20 years - 10 years below Carson's advisory range under the U.S. Sentencing Guidelines Manual (the "Guidelines"). The district court also imposed a life term of supervised release with 13 standard and 17 special conditions. Carson appeals the life term of supervised release and three of the special conditions.



         Carson argues the district court committed procedural error by imposing a life term of supervised release without considering the relevant sentencing factors under 18 U.S.C. § 3553(a) and without explaining the basis for so long a term. Carson notes that while the district court considered several § 3553(a) factors in imposing his term of imprisonment, the district court failed to provide any explanation for imposing a lifetime term of supervised release.

         Carson did not raise this objection before the district court, so our review on appeal is for plain error. United States v. Moore, 565 F.3d 435, 437 (8th Cir. 2009). "To qualify for relief under the plain error standard, [Carson] must show that the district court committed an error that is plain, that affects his substantial rights, and that seriously affects the fairness, integrity, or public reputation of judicial proceedings." United States v. Mayo, 642 F.3d 628, 631 (8th Cir. 2011).

         Carson's argument overlooks the fact "[t]he term of supervised release is part of a defendant's sentence." United States v. James, 792 F.3d 962, 967 (8th Cir. 2015); see also 18 U.S.C. § 3583(a) (stating a court may include a requirement of supervised release "as part of the sentence"). Indeed, federal law provides that in determining the length of supervised release, a district court must consider many of the same § 3553(a) factors underlying a defendant's term of imprisonment, including the nature and circumstances of the offense, the history and characteristics of the defendant, the need to protect the public, and the need to provide the defendant with effective correctional treatment. 18 U.S.C. §§ 3553(a), 3583(c). We therefore agree with other circuits that have said "a single consideration of the sentencing factors" can "embrace[] both the incarceration sentence and the supervised release term," United States v. Presto, 498 F.3d 415, 419 (6th Cir. 2007), and "[o]ne overarching explanation often will provide an adequate explanation for the duration of supervised release," United States v. Moose, 893 F.3d 951, 960 (7th Cir. 2018).

         Here, the district court's consideration of the § 3553(a) factors "applie[d] equally well" to both Carson's terms of imprisonment and supervised release. Id. The district court referenced the nature and circumstances of Carson's offense, noting his offense conduct included the "somewhat unique" aggravating factors of distributing child pornography to a minor and engaging in a pattern of activity involving the sexual exploitation of minors. The district court discussed Carson's history and characteristics, granting a downward variance on the prison term because of Carson's lack of criminal history, the fact he pled guilty, and the fact he received a three-level reduction for acceptance of responsibility. The district court's sentence mirrored the recommendations it reviewed in the government's sentencing memorandum, [2] which analyzed five of the § 3553(a) factors. See United States v. Gray, 533 F.3d 942, 944 (8th Cir. 2008) ("[I]n determining whether the district court considered the relevant factors in a ...

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