Friday, August 14, 2009

Child Porn: Circuit upholds use of relevant conduct and conditions of release

In United States v. Thielemann, No. 08-2335, the defendant was indicted and pleaded guilty to one count of receiving child pornography. He was sentenced to the statutory maximum of 240 months of imprisonment. He appealed the district court’s consideration of non-charged relevant conduct in calculating his offense level and two special conditions of supervised release restricting computer use and viewing of sexually explicit material.

The district court at sentencing determined Thielemann’s offense level under § 2G2.1, an increase of 10 levels, (offenses causing a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction), using a cross-reference to uncharged relevant conduct—codefendant’s molestation of a minor carried out at defendant’s inducement via the internet. The Third Circuit affirmed the use of relevant conduct in determining the offense level.

The Court also upheld both special conditions of supervised release. The restriction on possession and viewing of sexually explicit material, as defined in 18 U.S.C. § 2256(2)(A), does not violate the Constitution where the purpose is to rehabilitate, protect, and deter future conduct, because the offense conduct demonstrated that defendant previously used legal adult pornography to further his sexual interest in children. The restriction on defendant’s access to computers and the internet was also upheld, given the limitations of the restrictions and the fact that Thielemann’s utilized the internet to facilitate actual molestation of a child.

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