United States v. Thomas Luke Guagliardo

PER CURIAM Opinion; Partial Concurrence and Partial Dissent by Judge FERNANDEZ

Thomas L. Guagliardo challenges his conviction for possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B), and three conditions attached to his supervised release. We affirm the conviction but remand for resen-tencing.

I.

On July 1, 1997, Guagliardo “conversed” in an Internet chat room with an undercover police detective. Guagliardo claimed to have a collection of 7,500 images and 105 movies of pre-teen child pornography. Later, Guagliardo met with another undercover officer and gave him three computer disks containing pornographic images of preadolescent girls.

Guagliardo was charged with one count of violating 18 U.S.C. § 2252A(a)(5)(B), which at that time made it a crime to

Guagliardo was convicted after a bench trial. He was sentenced to 15 months’ imprisonment followed by three years of supervised release.

II.

Guagliardo argues that there was -insufficient evidence of a connection to interstate or foreign commerce to satisfy the statutory requirement. Although there may have been insufficient evidence that his images had been “transported” in interstate commerce, we…

278 F.3d 868 UNITED STATES of America, Plaintiff-Appellee, v. Thomas Luke GUAGLIARDO, Defendant-Appellant. No. 01-50066. United States Court of Appeals, Ninth Circuit. Argued and Submitted October 17, 2001. Filed January 17, 2002. COPYRIGHT MATERIAL OMITTED Maria A. Stratton, Federal Public Defender, James H. Locklin, Deputy Federal Public Defender, Los Angeles, California, for the defendant-appellant. James S. Gordon, United States Attorney, Ronald L. Cheng, Assistant United States Attorney, Curtis A. Kin, Assistant United States Attorney, Los Angeles, California, for the plaintiff-appellee. Appeal from the United States District Court for the Central District of California; David O. Carter, District Judge, Presiding. D.C. No. CR-99-00139-DOC. Before: BROWNING, FERNANDEZ, and FISHER, Circuit Judges. PER CURIAM: 1 Thomas L. Guagliardo challenges his conviction for possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B), and three conditions attached to his supervised release. We affirm the conviction but remand for resentencing. I. 2 On July 1, 1997, Guagliardo "conversed" in an Internet chat room with an undercover police detective. Guagliardo claimed to…

Concurring and Dissenting:

I concur in the determination that Gua-gliardo was properly convicted. However, I dissent from the determination that certain of the supervised release terms are improper.

First, although Guagliardo assérts that a prohibition on his possession, use, etc., of pornography is overly broad, it seems to me that we foreclosed that argument when we held that a prohibition on possession of “sexually stimulating” material was a proper condition of supervised release. See United States v. Bee, 162 F.3d 1232, 1234-35 (9th Cir.1998). While the attack there was on the basis of the First Amendment and on a lack of reasonable relationship to rehabilitation, we could hardly have turned the attack aside if we found the condition overly broad or unintelligible. Sexually stimulating” is no narrower than and may well be broader.

Second, the proximity of residence requirement is not too broad at all because Guagliardo could not be trapped into a violation of his supervised release terms. His residence must be approved by the probation officer in the first place, and it is plain that he could not be in violation of the terms if he obtained that approval, as he is required…