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United States v. Sebert

United States Court of Appeals, Eighth Circuit

August 13, 2018

United States of America Plaintiff- Appellee
Jonathan Sebert Defendant-Appellant

          Submitted: June 11, 2018

          Appeal from United States District Court for the Northern District of Iowa - Central Division

          Before LOKEN, GRUENDER, and GRASZ, Circuit Judges.

          PER CURIAM.

         In August 2017, the district court[1] sentenced Jonathan Sebert ("Sebert") to two hundred forty months of imprisonment, followed by twenty years of supervised release, based on his guilty plea to receipt of child pornography. Sebert argues on appeal that his sentence is substantively unreasonable and that one of the special conditions for his supervised release term is unconstitutionally overbroad and vague.

         We review a sentence for substantive reasonableness in relation to the advisory sentencing range from the U.S. Sentencing Guidelines Manual (the "Guidelines range") and the factors from 18 U.S.C. § 3553(a). See United States v. Funke, 846 F.3d 998, 1000 (8th Cir. 2017). "A district court abuses its discretion and imposes an unreasonable sentence when it fails to consider a relevant and significant factor, gives significant weight to an irrelevant or improper factor, or considers the appropriate factors but commits a clear error of judgment in weighing those factors." United States v. Miner, 544 F.3d 930, 932 (8th Cir. 2008). We accord a presumption of reasonableness when the sentence is within the Guidelines range. See Funke, 846 F.3d at 1000.

         At sentencing, the district court carefully considered several factors when deciding to impose the statutory maximum sentence, as recommended by the Guidelines.[2] For example, the district court placed great emphasis on the fact the plea deal allowed Sebert to escape a longer sentence for sexually exploiting his girlfriend's thirteen year old daughter. The district court also considered Sebert's distribution of child pornography. It further observed that Sebert's lack of violent criminal history and demonstrated remorse were typical of passive child pornography offenders and did not support a variance in his sentence in light of the aggravating factors. While we recognize that Sebert may disagree with the way the district court weighed the factors, he has not overcome the presumption of reasonableness, nor do we see any basis to conclude the district court abused its discretion. Accordingly, we hold the sentence is substantively reasonable.

         Sebert's challenge to a special condition of supervised release is foreclosed by our precedents. The special condition at issue states that Sebert "must not view, possess, produce, or use any form of erotica or pornographic materials, and the defendant must not enter any establishment where pornography or erotica can be obtained or viewed."

         Sebert argues the term "erotica" is unconstitutionally vague and overbroad. We have previously held that a condition with the same key terms, prohibiting a defendant from "enter[ing] any location where pornography, erotica, or adult entertainment can be obtained or viewed," United States v. Mefford, 711 F.3d 923, 928 (8th Cir. 2013) (alteration in original), was not unconstitutionally vague or overbroad. "We are bound by Mefford and hold that the terms 'pornography' and 'erotica' are not vague as applied in [this] case." United States v. Bordman, No. 17-2395, 2018 WL 3433754, at *10 (8th Cir. July 17, 2018).

         We affirm.

          GRASZ, Circuit Judge, concurring.

         I join the Court's opinion in full. I write separately to observe that this Court's opinion in Mefford, which is the controlling precedent as to the special condition challenge, is suspect because it appears to have been based on the mistaken belief that the panel was bound by Ristine regarding the validity of the special condition concerning "erotica."

         In Mefford, the Court reviewed a special condition relevantly containing provisions substantively identical to those challenged here prohibiting the supervised offender from entering any establishment where "erotica" can be obtained or viewed. The Court upheld the special condition, noting that its language was "virtually identical to wording we have previously upheld" in Ristine. Mefford, 711 F.3d at 928 (citing Ristine, 335 F.3d at 694-95). The problem with the Mefford court's analysis, and its application to the erotica provisions of the special condition, is twofold.

         First, the defendant in Ristine challenged only the portion of the special condition pertaining to pornographic materials. 335 F.3d at 694. The opinion clearly stated that "Ristine does not argue that the restrictions concerning 'erotica' are overbroad or vague." Id. at 694 n.2. Thus, the Court in Mefford was ...

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