Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil Action No. 00-cr-00108) District Judge: Honorable Charles R. Weiner
Before: Sloviter, Roth & McKEE, Circuit Judges
The opinion of the court was delivered by: Roth, Circuit Judge
Robb Walker Freeman challenges a 70 month sentence that he received after pleading guilty to receipt and possession of child pornography under 18 U.S.C. S 2252(a)(2) & (4)(B). In sentencing, the District Court departed upward from Criminal History Category I to Category III because it believed that Category I under-represented Freeman's criminal history and likelihood of committing future crimes. See United States Sentencing Guideline (U.S.S.G.) S 4A1.3. The court also imposed a special, supervised release condition that prohibits Freeman from keeping any computer equipment in his home and from accessing the internet without permission of his probation officer.
We will vacate both the District Court's upward departure and its supervised release condition. Although the District Court heeded legitimate concerns when it increased Freeman's criminal history category, it erred by awarding a two-level departure without considering whether a one-level departure (to Category II) would be more appropriate. It also erred by failing to state the reasons for its special condition of supervised release and by imposing a condition that unreasonably impinges upon Freeman's liberty interests. See United States v. Sofsky, 287 F.3d 122, 124 (2d Cir. 2002).
I. Facts and Procedural History
Investigation and arrest of Freeman. This case arises from a child pornography investigation conducted by U.S. Customs Service agents and detectives from Delaware County. They were assisted by John Flemming, a convicted child molester, who helped in an effort to cooperate with federal and state authorities. Flemming had met Freeman many years earlier at Johns Hopkins' Sexual Disorders Clinic.
As part of the investigation, Flemming invited Freeman to his home in Drexel Hill, Pennsylvania. Freeman accepted Flemming's invitation and met with Flemming and an undercover Delaware Police Detective, Mark Bucci. Bucci posed as a collector of child pornography and urged Freeman to show him the pictures of child pornography on Freeman's laptop. Bucci then showed Freeman a personal computer containing numerous child pornography images. Freeman viewed the images and said he would like to copy them. Freeman then connected his Iomega disk drive to Bucci's personal computer and downloaded the file containing child pornography. After Freeman left the meeting, he was arrested.
Upon his arrest, Freeman waived his rights and admitted that he had loaded numerous images of child pornography onto his laptop and that he knew his possession and transportation of child pornography was illegal. The agents also executed a search warrant of Freeman's home in Maryland and discovered additional child pornography in computers, a scrapbook, and a videotape.
Initial Sentencing. On March 16, 2000, Freeman pled guilty to one count of receipt of visual depictions of minors engaged in sexually explicit conduct (18 U.S.C.S 2252(a)(2)) and one count of possession of visual depictions of minors engaged in sexually explicit conduct (18 U.S.C. S 2252(a)(4)(B)). Freeman's guilty plea agreement was limited to evidence regarding his possession of child pornography. The government noted that it intended, at the sentencing hearing, to present further evidence of facts that Freeman did not agree to in connection with his guilty plea.
At the first sentencing hearing, the government presented evidence and testimony to support its request that the court depart from Criminal History Category I to Criminal History Category III. The government argued that Freeman's criminal history did not adequately reflect the seriousness of his past criminal conduct and the likelihood of recidivism. See U.S.S.G. S 4A1.3. Evidence in support of the government's claim included:
ù Detective Bucci testified that Freeman had admitted to molesting numerous young boys and that he had admitted to recently taking advantage of opportunities to baby-sit and take ...