Ban on accessing adult pornography is vacated

Where a man who pleaded guilty to transporting child pornography was ordered to not access any pornography, but the government failed to offer any individualized evidence, like testimony from a witness responsible for the man’s treatment that linked his consumption of adult pornography and his risk of viewing child pornography, the district court erred.

Background

Joseph D. Castellano pleaded guilty to transporting child pornography. The district court sentenced him to 12 years in prison and lifetime supervised release, subject to certain conditions. Castellano has struggled to comply with the conditions, returning to prison three times for violating them.

Castellano now challenges the sentence imposed after his third revocation of supervised release. He argues that the court erred in reimposing a special condition limiting his access to pornography and in imposing a plainly unreasonable 24-month prison term.

Special condition nine

The government urges the court to reject Castellano’s challenge to special condition nine as untimely. Castellano should have objected to the condition when it was imposed at his original sentencing, the government argues — not at a subsequent revocation hearing. But this argument was available to the government when Castellano objected to the special condition in the district court. Yet the government’s brief in opposition never mentioned it, instead opting to respond to Castellano’s arguments on the merits. And the district court accordingly ruled on the merits.

The court also disagrees with the government’s contention that any “unique interests in judicial efficiency, conservation of scarce judicial resources, and orderly and prompt administration of justice” compel the court to overlook the omission. Accordingly, the court holds that the government forfeited any timeliness objection to Castellano’s special condition nine challenge.

Standard

The district court treated Castellano’s objection as a request to modify the condition after it was imposed. Consequently the court views Castellano’s objection as one to modify the terms of his upcoming supervised release under 18 U.S.C. § 3583(e), requiring Castellano to point to “new, unforeseen, or changed legal or factual circumstances.”

Merits

Castellano suggests that United States v. Van Donk, 961 F.3d 314 (4th Cir. 2020), and United States v. Ellis, 984 F.3d 1092 (4th Cir. 2021), satisfy this requirement. The court agrees. Van Donk and Ellis flesh out exactly what kind of explanation and evidence are required in the pornography-restriction context. Under Van Donk and Ellis, the government needed to put forth “individualized evidence linking pornography to [Castellano’s] criminal conduct or rehabilitation and recidivation risk.” And the district court had to provide an “individualized explanation[]” for the condition’s “broad sweep.”

The district court found that Castellano “obviously has an addiction to pornographic images that he has yet to adequately address.” And though the court acknowledged that “possession of adult pornography is not the same as juvenile images,” it concluded that Castellano’s “unstable addiction and continued disrespect for terms of supervised release [] indicate that possession of any juvenile image, no matter how harmless, is a slippery slope for Defendant.”

Castellano’s seeming inability to comply with his supervised-release conditions, the court found, “indicates that [he] is spiraling down a path of bad habits which could potentially lead to another charge related to the underlying offense.” While the court’s reasoning “may seem intuitive or commonsense to some, it must be supported by individualized evidence to meet § 3583(d)’s reasonably related standard.” Such evidence is lacking here.

The government didn’t offer any individualized evidence, like the “testimony from a witness responsible for [Castellano’s] treatment,” linking Castellano’s consumption of adult pornography and his risk of viewing child pornography. The court’s“ slippery slope” inference can’t bridge the gap. The lack of evidence and explanation here is particularly troubling given special condition nine’s broad sweep.

The court therefore reverses the order declining to modify special conditions and directs the district court to strike special condition nine on remand. And because the district court imposed a 24-month sentence based largely on Castellano’s alleged violation of special condition nine, that sentence is vacated so that the district court may reconsider whether Castellano’s actions merited the statutory maximum sentence.

Dismissed in part, reversed in part, vacated and remanded.

Dissenting opinion

Rushing, J., dissenting:

I would affirm the district court’s reimposition of special condition nine. Even assuming that the government could and did forfeit its timeliness objection, that we may treat Castellano’s objection as a modification request and that Van Donk and Ellis present changed legal circumstances supporting a modification request, I disagree with the majority’s conclusion that the district court abused its discretion in denying Castellano’s request to modify the condition on that ground.

United States v. Castellano, Case No. 21-4419, Feb. 17, 2023. 4th Cir. (Diaz), from EDVA at Norfolk (Jackson). Andrew William Grindrod for Appellant. Aidan Taft Grano-Mickelsen for Appellee. VLW 023-2-049. 24 pp.