United States v. Marc Accardi

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 14, 2011 Decided February 28, 2012

No. 09-3091

UNITED STATES OF AMERICA,

APPELLEE

v.

MARC ACCARDI,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:09-cr-00009-1)

Jonathan S. Zucker, appointed by the court, argued the

cause and filed the briefs for appellant.

Peter S. Smith, Assistant U.S. Attorney, argued the cause

for appellee. With him on the brief were Ronald C. Machen

Jr., U.S. Attorney, and Roy W. McLeese III, John P.

Mannarino, and Julieanne Himelstein, U.S. Attorneys.

Before: GARLAND, BROWN and GRIFFITH, Circuit Judges.

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Opinion for the Court filed by Circuit Judge BROWN.

BROWN, Circuit Judge: Appellant Marc Accardi pled

guilty to one count of transportation of child pornography and

one count of possession of child pornography. On appeal, he

challenges the duration and conditions of his supervised

release. Because the district court committed no plain error,

we affirm.

I

On November 22, 2008, Marc Accardi entered a public

internet chat room using the alias “Jerkinoff” and struck up a

conversation with an individual who claimed to be an adult

male pedophile living in Washington, D.C. Unbeknownst to

Accardi, he was actually communicating with Detective

Timothy Palchak of the Metropolitan Police Department, who

was working undercover with the FBI’s Innocent Images Task

Force. Accardi told Detective Palchak that he “had an interest

in children” ranging in age “from baby on up.” During the

conversation, Accardi sent the detective thirteen images of

prepubescent children engaging in sexual activity with adult

men.

Law enforcement personnel executed a search warrant at

Accardi’s residence in Scranton, Pennsylvania on December

19, 2008. Agents retrieved thousands of images of young

children from Accardi’s computer; most of the pictures

showed children under the age of 12 having sexual contact or

relations with adults. Accardi was subsequently charged, in

Washington, D.C., with transportation and possession of child

pornography. Pursuant to a signed plea agreement and

statement of offense, Accardi pled guilty to both charges at a

May 5, 2009 hearing before the United States District Court

for the District of Columbia.

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On September 2, 2009, the district court sentenced

Accardi to concurrent terms of 100 months of incarceration

for each count of his indictment. The court also imposed a

40-year term of supervised release, during which Accardi

would be required to comply with a number of conditions. At

no point during the sentencing hearing did Accardi or his

counsel object to any aspect of the sentence.

In this appeal, Accardi challenges the duration of his

supervised release and three of its conditions: (1) a ban on

“patroniz[ing] any place where pornography or erotica can be

accessed or is expressly offered, obtained or viewed,

including establishments where sexual entertainment is

available, [such as] adult bookstores, peep shows or adult

entertainment establishments”; (2) a restriction on his use of a

“computer that has access to any online computer service at

any location, including [his] place of employment, without the

prior approval of the probation office”; and (3) participation

in and successful completion of a “residential . . . or

outpatient substance abuse treatment program, specifically

directed toward alcohol abuse, which can include testing and

detoxification service as approved and directed by the

probation office.” Transcript of Sentence at 30–32.

II

We review all of Accardi’s challenges for plain error

because they were not raised before the district court. United

States v. Sullivan, 451 F.3d 884, 892 (D.C. Cir. 2006). To

prevail under the demanding plain error standard, an appellant

must show that the district court made: (1) a legal error; that

was (2) plain or obvious; and that (3) affected his substantial

rights. United States v. Olano, 507 U.S. 725, 733–34 (1993).

Once plain error is established, this Court may exercise its

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discretion to correct plain error only where the error seriously

affects the fairness, integrity, or public reputation of judicial

proceedings. Id. at 736. It is appellant’s burden to

demonstrate that he has met these requirements. United

States v. Smith, 267 F.3d 1154, 1160 (D.C. Cir. 2001).

Accardi argues that the forty-year term of supervised

release was procedurally unsound because the district court

incorrectly applied the Sentencing Guidelines and failed to

adequately explain the sentence. Accardi also argues that the

duration of the term was substantively unsound because it

created an unwarranted sentencing disparity among similarly

situated offenders. None of his arguments have merit.

As a threshold matter, we reject the government’s

contention that Accardi waived any appeal of the length and

conditions of his supervised sentence or “invit[ed]” the

alleged error. Appellee’s Br. at 8. A defendant may waive

his right to appeal his sentence as part of a plea bargain only

if the waiver is “knowing, intelligent, and voluntary.” United

States v. Guillen, 561 F.3d 527, 529 (D.C. Cir. 2009). For a

waiver to be “knowing” and “intelligent,” the court must

assure itself that the defendant is “aware of and understands

the risks involved in his decision.” Id. In the context of a

plea bargain, such a determination is usually made at the plea

hearing, at which the court can fully explain the consequences

of the waiver by informing the defendant of exactly what

rights he is giving up and what rights he retains. See id. at

528.

No such colloquy occurred, so we cannot be sure Accardi

knew that he would waive his ability to challenge his sentence

by addressing the district court at his September 2, 2009

sentencing hearing. Accardi merely said that he would “take

lifetime probation supervision . . . I just ask and I beg for

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leniency and to send me home to my family. I’m willing to

do anything—any restrictions you want to place, I’m willing

to do that and more[.]” Transcript of Sentence at 19–20. The

substance of Accardi’s statement does not align with the

sentence handed down by the district court. By “beg[ging]

for leniency and [asking the judge] to send [him] home to

[his] family”, id., Accardi clearly offered to accept lifetime

supervised release as an alternative to jail time. Nowhere did

he indicate his willingness to accept the sentence he now

challenges, which consists of both an extended term of

incarceration and lifetime supervised release accompanied by

many burdensome restrictions.

We therefore turn to Accardi’s allegations of procedural

error. A sentencing court can commit procedural error “by

failing to calculate (or improperly calculating) the Guidelines

range.” Gall v. United States, 552 U.S. 38, 51 (2007). The

Prosecutorial Remedies and Other Tools to End the

Exploitation of Children Today Act of 2003 (PROTECT Act),

Pub. L. 108–21, codified at 18 U.S.C. § 3583(k), authorized

the imposition of a lifetime period of supervised release for

sex offenders. The relevant Sentencing Guideline defines

“sex offense” as “(A) an offense, perpetrated against a minor,

under… (iii) chapter 110 of [title 18 United States Code],”

U.S.S.G. § 5D1.2 cmt. n. 1. Accardi pled guilty to violations

of § 2252A, which is part of Chapter 110.

Accardi contends his offenses, possessing and

distributing child pornography, do not fall within § 5D1.2

because they were not “perpetrated against a minor.” We—

along with Congress, the Supreme Court, and every federal

court to address this issue—disagree. As the victim impact

statements in this case show, child pornography creates an

indelible record of the children’s participation in a

traumatizing activity, and the harm to the child is only

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exacerbated by the circulation of the materials. See New York

v. Ferber, 458 U.S. 747, 759 (1982); Child Pornography

Protection Act of 1996, Pub. L. No. 104-208, § 101(a)(2), 110

Stat. 3009, 3009 (2006) (finding that “where children are

used in its production, child pornography permanently records

the victim’s abuse, and its continued existence causes the

child victims of sexual abuse continuing harm by haunting

those children in future years”). Moreover, four different

circuits have rejected precisely the argument that Accardi

makes here. See United States v. Daniels, 541 F.3d 915, 924

(9th Cir. 2008) (explaining that “merely possessing child

pornography is not a victimless crime; it fuels the demand for

the creation and distribution of child pornography”); United

States v. Pugh, 515 F.3d 1179, 1196 (11th Cir. 2008) (“The

distribution of photographs and films depicting sexual activity

by juveniles is intrinsically related to the sexual abuse of

children…”); United States v. Gonzalez, 445 F.3d 815, 819

(5th Cir. 2006) (rejecting claim that “mere consumption” of

child pornography is not “an offense perpetrated directly

against a minor”); United States v. Kimler, 335 F.3d 1132,

1147 (10th Cir. 2003) (holding that possession and

consumption of child pornography are crimes “perpetrated

against a minor”). No other federal court has accepted

Accardi’s argument, and we will not be the first.

Accardi also claims the district court failed to adequately

explain his sentence, in violation of Section 3553(c). We find

the district court’s reasons for imposing a 40-year sentence to

be apparent from the record. The court explained the conduct

underlying Accardi’s offenses was “of grave concern,”

Transcript of Sentence at 26, because “[t]here was very

aggressive sexual activity [in the images] when compared to

some of the other images that I’ve seen in other cases.” Id. at

23. The judge noted Accardi claimed he had sexual contact

with a six-year-old, id. at 25, and noted his apparent

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willingness “to take this beyond looking at images,” id. at 26.

She further explained that like drug or alcohol dependency,

rehabilitative treatment is “not a cure” and is “something that

you’ll have to deal with for the rest of your life.” Id. She

subsequently explained that supervised release is a “very

critical piece,” the purpose of which is to “monitor and

require a program, when in the community, [to] prevent any

reoccurrence. Id. at 28. This extended discussion about

Accardi’s particular crimes and the purposes of supervised

release makes clear that the district court based the sentence

on what was reasonably necessary to protect the public,

prevent a reoccurrence, and provide Accardi with treatment.

See Rita v. United States, 551 U.S. 338, 356–57 (2007)

(“[W]hen a judge decides simply to apply the Guidelines to a

particular case, doing so will not necessarily require lengthy

explanation . . . Unless a party contests the Guidelines

sentence generally under § 3553(a) . . . or argues for

departure, the judge normally need say no more.”)

Finally, Accardi argues that the 40-year term was

substantively unreasonable because the court failed to give

reasonable weight to one of the statutory factors: “the need to

avoid unwarranted sentence disparities among defendants

with similar records who have been found guilty of similar

conduct.” 18 U.S.C. § 3553(a)(6). He notes that two other

targets of Detective Palchak’s undercover operation received

less jail time and substantially smaller periods of supervised

release, even though both targets transmitted more images to

Detective Palchak than Accardi did. See United States v.

Hedgpeth, 1:08-cr-00251-RWR; United States v. Slagle, 1:08-

cr-00308-HHK. We disagree.

The Supreme Court has held that courts of appeals may

presume that a Guidelines-compliant sentence is reasonable.

Rita, 551 U.S. at 350–51. This circuit applies that

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presumption, see United States v. Dorcely, 454 F.3d 366, 376

(D.C. Cir. 2006), and Accardi fails to rebut it. Without more,

two allegedly similar cases constitute too small a sample size

to support a finding of an “unwarranted disparity” in

sentences, particularly when the district court explained that

the images distributed by Accardi were much more aggressive

and troubling than the images distributed by other offenders.

In light of this finding, it is far from clear that the disparity, if

any, was “unwarranted.” Moreover, a number of circuits have

upheld lifetime terms of supervised release for defendants

convicted of possession of child pornography based on the

same general concerns about recidivism, protection of the

public, and rehabilitation that animated the district court’s

decision here. See Daniels, 541 F.3d at 924 (“The district

court was within its discretion to conclude that a lifetime term

of supervised release was necessary to punish Daniels…, to

rehabilitate him, and to protect the public[.]”); United States

v. Cope, 527 F.3d 944, 952 (9th Cir. 2008) (basing sentence

on general concerns about recidivism and protection of the

public); United States v. Planck, 493 F.3d 501, 506 (5th Cir.

2007); Gonzalez, 445 F.3d at 819 (“The Court finds a

supervised release term of life will benefit society and reflects

the Court’s experience that persons rarely get better in these

types of cases.”). In light of the particular factual

circumstances of this case and the caselaw approving similar

sentences, we find the district court did not substantively err

in ordering a 40-year term of supervised release.

III

Under Section 3583(d), each condition of supervised

release must be reasonably related to the nature and

circumstances of the offense, the history and characteristics of

the defendant, deterrence of criminal conduct, protection of

the public, and treatment of the defendant’s correctional

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needs. In applying these standards, “sentencing judges are

afforded wide discretion when imposing terms and conditions

of supervised release.” Sullivan, 451 F.3d at 895. Because

Accardi failed to lodge any objection to his sentence before

the district court, we review the district court’s imposition of

the terms and conditions of supervised release for plain error.

Id.

We conclude the district court did not plainly err in

imposing any of the challenged conditions, though we do

subject the prohibition on patronizing any place where

pornography is available to a limiting construction to prevent

it from being impermissibly vague.

Accardi first challenges the condition barring him from

“patroniz[ing] any place where pornography or erotica can be

accessed or is expressly offered, obtained, or viewed,

including establishments where sexual entertainment is

available, adult bookstores, peep shows, or adult

entertainment establishments.” Transcript of Sentence at 31.

He claims the condition, as imposed, is overbroad, because it

gives his future probation officer the power to arbitrarily

define “pornography or erotica” and could be construed to

ban him from places not directly related to the goals of

sentencing, such as bookstores, newsstands, and even the

Library of Congress.

Accardi notes a governmental restriction can be

impermissibly vague “if it authorizes or even encourages

arbitrary and discriminatory enforcement.” Hill v. Colorado,

530 U.S. 703, 732 (2000). He points to United States v. Loy,

237 F.3d 251, 266 (3d Cir. 2001), which held that a

supervised release condition prohibiting the defendant from

possessing “pornography” was unconstitutionally vague.

“[W]ithout a more definitive standard to guide the probation

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officer’s discretion,” the court warned, “there is a real danger

that the prohibition on pornography may ultimately translate

to a prohibition on whatever the officer personally finds

titillating.” Id.

The condition imposed upon Accardi is different from the

one invalidated in Loy. The district court’s restriction on

Accardi’s access to “pornography and erotica” refers to those

terms as part of a more general prohibition on “patroniz[ing]

establishments where sexual entertainment is available,”

which is accompanied by examples illustrating the intended

scope of the prohibition. While we agree with Accardi that

the condition, if enforced using the broadest plausible

interpretation, could lead to constitutionally problematic

results, we do not believe the district court intended to prevent

Accardi from going to the library or buying a newspaper. To

avoid any constitutional problem—and to give effect to the

intent of the district court—we construe the ban as limited to

places like those enumerated in the condition’s “including”

clause, i.e., places in which adult entertainment is the primary

offering. At argument, the government agreed this is the

meaning intended, and the defendant agreed that so construed

the condition is not impermissibly vague.

Next, Accardi challenges the district court’s ban on

“possess[ion] or use [of] a computer that has access to any

online computer service at any location, including [his]

employment, without the prior approval of the probation

office,” claiming this condition is more restrictive than

necessary because it gives the probation officer “unchecked

power to censor his on-line speech” for the rest of his life.

Appellant’s Br. 21. We find that the condition does not

warrant reversal under plain error review.

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In cases involving prosecution for “sex crimes,” which is

defined to include Accardi’s offense, the Sentencing

Guidelines suggest computer restrictions can be “reasonably

related” to the conduct underlying the offense. See U.S.S.G.

§ 5D1.3(d)(7) (2004). When faced with a substantially

similar internet restriction, we noted that “[t]his circuit has yet

to decide whether individuals convicted of sex crimes may

have their Internet usage conditioned on Probation Office

approval, and our sister circuits are divided on the issue.”

Sullivan, 451 F.3d at 895–96. Five years after deciding

Sullivan, this Court still has yet to decide the issue, and

disagreement among our sister circuits has continued. Some

courts have upheld qualified internet bans where, as here, the

defendant used a computer for distribution of child

pornography. See United States v. Boston, 494 F.3d 660, 668

(8th Cir. 2007). See also United States v. Bender, 566 F.3d

748, 751–52 (8th Cir. 2009) (upholding a restriction on

internet usage subject to permission from defendant’s

probation officer); United States v. Thielemann, 575 F.3d 265,

278 (3d Cir. 2009) (same); United States v. Rearden, 349 F.3d

608, 620–21 (9th Cir. 2003) (same); United States v. Zinn,

321 F.3d 1084, 1093 (11th Cir. 2003) (same). Others,

however, have found that such conditions impose a greater

restraint than was reasonably necessary. See, e.g., United

States v. Albertson, 645 F.3d 191, 199 (3d Cir. 2011)

(reversing internet restriction). In light of the circuit split on

this issue and this Court’s ongoing silence, the district court

did not plainly err by imposing a qualified ban on Accardi’s

ability to access the internet.

Likewise, Accardi’s challenge to the alcohol treatment

requirement fails because of a lack of relevant precedent in

this circuit and a split among the circuits that have evaluated

similar conditions of supervised release. The district court

ordered Accardi to “participate in and successfully complete a

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residential and/or out-patient [alcohol] abuse treatment

program . . . as approved and directed by the probation

office.” Accardi now claims the court improperly delegated

the discretion to decide whether he will be subjected to a

residential rehabilitation program, which implicates

“significant liberty interests that the court may not delegate to

a probation officer.” Appellant’s Br. 25.

Accardi’s argument raises a question of first impression

for this court which would be inappropriate to address under

plain error review. Other circuits, however, have upheld

similar conditions. See United States v. Heckman, 592 F.3d

400, 410 (3d Cir. 2010) (permissible for district court to

impose mandatory treatment and to delegate choice of

treatment program); United States v. Cutler, 259 F. App’x.

883, 887 (7th Cir. 2008) (same); United States v. Allen, 312

F.3d 512, 515–16 (1st Cir. 2002) (permissible to delegate to

probation office “whether and for how long” defendant must

participate in mental health treatment). But see United States

v. Mike, 632 F.3d 686, 696 (10th Cir. 2011) (“any condition

that affects a significant liberty interest, such as one requiring

the defendant to participate in residential treatment, must be

imposed by the district court”); United States. v. Esparza, 552

F.3d 1088, 1091 (9th Cir. 2009) (decision regarding whether

treatment would be inpatient or outpatient could not be

delegated to the probation office). A district court cannot

“plainly” err on an issue that has so divided the circuits.

Sullivan, 451 F.3d at 895–96.

IV

Finally, Accardi argues that his trial counsel was

“ineffective for failing to object” to the three conditions he

now challenges. To succeed on an ineffective assistance of

counsel claim, the defendant must demonstrate both that his

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counsel’s performance fell below an objective standard of

reasonableness and that this deficiency prejudiced his defense.

Strickland v. Washington, 466 U.S. 668, 688–92 (1984).

When raised for the first time on appeal, this court’s general

practice is to remand the claim for an evidentiary hearing

unless the trial record alone conclusively shows the defendant

either is or is not entitled to relief. United States v. Shabban,

612 F.3d 693, 698 (D.C. Cir. 2010).

Accardi claims it was objectively unreasonable for

counsel not to object to his sentence because the lengthy term

of supervised release, coupled with the allegedly overbroad

conditions of release, subjected him to “substantial

deprivations of fundamental rights.” Appellant’s Br. 31. He

further argues that counsel’s failure to object prejudiced this

appeal by forcing this court to review his sentence for plain

error, rather than abuse of discretion. We disagree.

It is clear without the need for further factual

development that counsel’s decision not to object to the

duration and conditions of supervised release reflected a

strategic decision not to challenge the terms of supervised

release in the hope of obtaining a shorter prison sentence. At

the sentencing hearing, Accardi himself indicated his

willingness to accept more restrictive terms of supervised

release in exchange for a reduced prison sentence. In light of

Accardi’s explicit statement that he would “take lifetime

supervised probation supervision,” it would be somewhat

perverse to find counsel constitutionally deficient for failing

to object to the imposition of that very condition. Rather, the

transcript of the sentencing hearing makes clear that counsel’s

failure to object reflected a reasonable strategic choice, which

when “made after thorough investigation of law and facts

relevant to plausible options [is] virtually unchallengeable.”

Strickland, 466 U.S. at 690.

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V

For the foregoing reasons, the sentence imposed by the

district court is hereby

affirmed.