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Monday, March 15, 2010

Ind. Decisions - 7th Circuit decides one Indiana case today

In U.S. v. Angle (ND Ind., Moody), a 17-page opinion, Judge Williams writes:

This is the fourth time Ralph Angle appeals the sentences imposed for his child pornography crimes. Three times we have remanded for resentencing because of our uncertainty about the reliability of information used to justify a total period of imprisonment well above the range established by the sentencing guidelines. In our last remand we also directed the district court to explain why a “pattern of abuse” upward adjustment did not fully account for the uncharged conduct used to justify the stiff punishment. Both of these concerns have now been satisfied. Finally, the district court did not abuse its discretion in thwarting Angle from gaining personal access to the Internet during the period of his supervised release. * * *

Angle makes one additional argument that arose for the first time after our last remand. At the final resentencing, the district court imposed as a special condition of supervised release that Angle “shall not have personal access to computer Internet services.” This condition was not suggested in advance but first raised in open court during sentencing. Angle objected to that condition, and on appeal he contends that the district court was required to give him notice before imposing such a condition and that barring him from using the Internet is both unnecessary and unreasonable. * * *

Angle first argues that the court was required to give notice of its intent to impose this condition of supervised release because it was analogous to a departure from the guidelines. This argument fails. * * * the guidelines contemplate a term of supervised release, and provide the district court with broad discretion in imposing appropriate conditions for the supervised release, Angle could not reasonably believe that an Internet ban was so “out of the ordinary,” as to require notice. United States v. McKissic, 428 F.3d 719, 725 (7th Cir. 2005). In fact, the 2006 guidelines which the district court had the discretion to consult, specifically contemplate limiting the use of a computer in cases where the defendant used a computer for sex offenses. U.S.S.G § 5D1.3(d)(7)(B) (2006).

Angle next argues that the condition is unnecessary and unreasonable. We disagree. In 1997 and 1998, when the Internet was fairly new, Angle was convicted of using the Internet to solicit a minor for sex. He also used the Internet to set up a pornography trade with a distributer, and possessed an extensive amount of child pornography on computer diskettes and zip disks. Furthermore, his use of the Internet was not integrally connected to his profession as he was previously employed as a salesman and mechanic. These facts easily distinguish Angle from the defendant in Holm who was convicted of simply possessing child pornography and used the computer and Internet extensively in his occupation as a information systems technologist. Finally, unlike the district court in Holm, here the district court did not impose a complete ban on the Internet, disallowing only “personal” access to Internet services. Under these circumstances, we cannot conclude that the district court abused its discretion in thwarting Angle from gaining personal access to the Internet during the period of his supervised release.

Posted by Marcia Oddi on March 15, 2010 07:43 PM
Posted to Ind. (7th Cir.) Decisions