Court Adopts Factors to Determine Exceptions to Waiver of Issues Not Raised in Opening Brief, Remands for More Narrowly Tailored Internet Restrictions

In United States v. Albertson, No. 09-1049, the Third Circuit considered yet again whether a defendant’s supervised release term and special conditions were reasonable under 18 U.S.C. § 3553(a) as incorporated by 18 U.S.C. § 3583(d)(1). Albertson pled to one count of receiving child pornography and received a sentence of 60 months in prison (the mandatory minimum term of imprisonment), along with a 20 year supervised release tail with 8 special conditions. Albertson challenged the length of his supervised release term as well as special conditions that: (1) banned him from associating with children under the age of 18 (other than his children) without his probation officer’s prior approval, (2) banned him from using a computer with internet access without prior written approval of the probation department, and (3) required him to submit to an initial inspection and subsequent inspections of his computer and to allow probation to install monitoring or filtering software onto his computer.

The Court first addressed waiver, because Albertson only challenged the length of his supervised release term in his initial brief. His reason for only raising the challenges to the special conditions in his reply brief was that the Third Circuit issued its opinion in United States v. Miller, 594 F.3d 172 (3d Cir. 2010) a day after his initial brief was filed. The Court noted that normally issues are waived if not raised in the appellant’s opening brief, but there are exceptions in extraordinary circumstances. Relying on the First Circuit’s opinion in In re Kane, 254 F.3d 325, 331 (1st Cir. 2001), the court adopted factors to determine what constitutes extraordinary circumstances. The factors are: (1) whether there is some excuse for the failure to raise the issue in the opening brief, (2) how far the opposing party would be prejudiced, and (3) whether failing to consider the argument would lead to a miscarriage of justice or undermine confidence in the judicial system. Under these factors, the Third Circuit found extraordinary circumstances existed even though Albertson’s reason for failing to initially raise the issue was not compelling in light of the body of case law on computer-related conditions of supervised release that existed before Miller. The most compelling factor was that ignoring overbroad internet restrictions contrary to clear Third Circuit precedent would undermine confidence in the judicial system.

The Court in Miller enunciated 3 factors relevant to assessing whether a supervised release condition is overbroad: (1) the scope of the condition with respect to its substantive breadth; (2) the duration of the condition; and (3) the severity of the defendant’s conduct - particularly whether the defendant used a computer to solicit or personally endanger children. The Albertson court added a fourth factor: the interplay between the prison time served and the term of supervised release, in light of the fact that often times district courts may find that a longer term of supervised release should follow a shorter prison term. The Court also found it relevant to consider the proportion of a supervised release restriction to the total period of restriction, including prison time.

Under these factors, the blanket ban on internet use without probation’s approval was “sweepingly broad” because Albertson never used the internet “as an instrument of harm” and because modern life is extremely difficult without access to the internet. Second, the Court found the duration of the conditions - 20 years - should be considered in light of his age. At 42 years old, Albertson’s 20-year restrictions were basically of the same length as the defendant’s lifetime restrictions in Miller (assuming an 80-year life expectancy - Miller was 60 years old when sentenced). Third, Albertson did not use the internet to actively contact or solicit contact with children. Albertson’s short incarceration period did suggest, however, that a lengthy supervised release tail was appropriate. As such, the Court upheld the 20 year supervised release term, but found the internet restriction condition overbroad and remanded to the district court to consider a more narrowly tailored internet use restriction. The Court also explained that the computer monitoring condition would be perfectly acceptable if paired with a more narrowly tailored and reasonable internet use restriction, so it remanded for reconsideration of that condition in connection with the internet use condition. Further, in light of the fact that Albertson had been charged with molesting his stepdaughter at the time of his federal sentencing (and later convicted), the Court upheld the association with minors condition.

De Novo Sentencing Applies After Court Vacates Part of Interdependent Sentence, Remand for Full Consideration of Post-Sentencing Rehabilitation

In United States v. Diaz, No. 10-3337, the Third Circuit considered whether the district court correctly resentenced the defendant on remand after one count of an interdependent sentence was vacated. Diaz was convicted of one count of possession with intent to distribute heroin and two counts of possessing a firearm in furtherance of drug trafficking in violation of 18 U.S.C. § 924(c). The Third Circuit reversed and remanded for resentencing, holding that Mr. Diaz’s double jeopardy rights were violated because a second § 924(c) count must be based on a separate predicate drug offense. On remand, the defense argued that the district court should simply reduce the sentence by 120 months - the sentence originally associated with the vacated § 924(c) count. The district court treated its original sentence as interdependent, and held that resentencing de novo was appropriate so long as the Third Circuit did not direct otherwise. The district court considered the fact that the defendant was facing one less conviction. The defense also presented evidence of Diaz’s post-sentencing rehabilitation. The district court recognized Diaz’s post sentence rehabilitation, but explained that it was not a major factor in its new sentence. Accordingly, the district court reduced Diaz’s sentence by 80 months.

On appeal for the second time, the Third Circuit examined United States v. Miller, 594 F.3d 172, 181-82 (3d Cir. 2010) and United States v. Davis, 112 F.3d 118, 122 (3d Cir. 1997), which held that resentencing is to be conducted de novo when one count of an interdependent sentence is vacated. The Court also considered the “grouping” provisions of the United States Sentencing Guidelines embodied in U.S.S.G. § 4B1.1. The Court, quoting Davis, noted that “when a defendant is found guilty on a multicount indictment, there is a strong likelihood that the district court will craft a disposition in which the sentences on the various counts form part of an overall plan.” Thus, the district court is entitled to sentence de novo when one count imposing a mandatory sentence is vacated. Since Diaz’s original sentence was interdependent, the district court correctly resentenced Diaz de novo. The Court left open whether resentencing should be conducted de novo where one count of a non-interdependent sentence is vacated.

The Third Circuit also held that in light of Pepper v. United States, 131 S. Ct. 1229 (2011), which the Supreme Court issued after Diaz’s second sentencing, remand for a third resentencing was appropriate. The district court’s language was unclear, and left the Third Circuit concerned that the district court was not fully aware it could consider Diaz’s post-sentence rehabilitation. As Pepper later made clear, the district court may consider post-sentencing rehabilitation when sentencing de novo. Therefore, the Third Circuit remanded for another de novo sentencing to include a full consideration of Diaz’s post-sentencing rehabilitation.

Enhancement for Counterfeit Obligations Based on Face Value, Not Intended Loss

In United States v. Wright, No. 10-2970 (3d. Cir. June 1, 2011), the Third Circuit vacated a sentence of twenty months imprisonment and remanded for resentencing. The court recognized the facts of this case could never have been envisioned by the Sentencing Commission. Wright and a man he falsely identified as his brother attempted to sell $120,000 worth of fake U.S. currency for $60,000 to a small business owner. Wright and his "brother" told the business owner that their father was a politician and banker in Sierra Leone, who had recently been assassinated, and that he and his brother fled to the United States as refugees. They claimed to have brought with them millions of dollars in U.S. currency, that had been provided to Sierra Leone by the U.S. as aid. They claimed that the currency had been dyed black in order to prevent the use of the currency by rebels who might have intercepted it. In a meeting with the business owner, Wright and his "brother" demonstrated the process of cleaning the black papers with special solvent. After the two black papers they used for demonstration were "sloshed" in the solvent, they were revealed to be two genuine $100 bills. Distrustful of the arrangement, the small business owner notified the U.S. Secret Service. They arranged a second meeting, where the business owner told Wright that he was bringing another prospective buyer. At this time, they agreed to sell $200,000 worth of currency for $100,000. During this meeting, they again performed the demonstration, revealing two genuine $100 bills.

Wright’s "brother," Soko Kanneh, pled guilty and Wright chose to proceeded to trial. At the conclusion of his trial, the jury convicted Wright of possession of altered currency and conspiracy. Wright’s PSR recommended a base level offense of 9 plus an 8-level enhancement for a total offense level of 17.

Wright objected to the 8 level enhancement, as § 2B5.1(b)(1) bases the enhancement on the "face value of the counterfeit items." All parties in this case acknowledged the "face value" of the counterfeit items to be $400, the four $100 bills used for demonstration purposes. The district court overruled Wright’s objection, concluding that the enhancement could be applied based on the loss Wright intended to cause. Wright appealed.

The government argued the district court did not make a one-step enhancement based on § 2B5.1(b)(1), but instead made a two-step upward departure based on § 5K2.0(a)(2)(B), which allows upward departures where "there is present a circumstance that the Commission has not identified. . ." The Third Circuit acknowledged that by focusing on the face value of the defaced currency rather than the intended loss, § 2B5.1 does not address the gravamen of the harm, thus an upward departure under § 5K2.0(a)(2)(B) would be justified, as would an upward variance under § 3553(a)(2)(A). However, the Third Circuit found the district court did not reach its sentence by an upward departure or an upward variance, but rather, clearly based its sentence on an enhancement for intended loss based on § 2B5.1(b)(1). Because the language of § 2B5.1(b)(1) clearly states that the enhancements are based on the face value of the counterfeit currency, the Third Circuit found the district court erred in imposing the enhancement based on intended loss.