Submitted: June 11, 2018
from United States District Court for the Northern District
of Iowa - Central Division
LOKEN, GRUENDER, and GRASZ, Circuit Judges.
August 2017, the district court 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
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.
sentencing, the district court carefully considered several
factors when deciding to impose the statutory maximum
sentence, as recommended by the Guidelines. 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
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."
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).
Circuit Judge, concurring.
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."
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.
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 ...