United States of America v. Robb Walker Freeman

* The Honorable Louis F. Oberdorfer, Senior District Judge for the District of
Columbia, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 03-1804
____________
UNITED STATES OF AMERICA,
v.
ROBB WALKER FREEMAN,
Appellant
____________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(District Court No. 00-cr-00108-1)
District Court Judge: Hon. Charles R. Weiner
Submitted Under Third Circuit LAR 34.1(a)
March 9, 2004
Before: SLOVITER and NYGAARD, Circuit Judges, and OBERDORFER,* District
Judge.
(Opinion Filed: March 11, 2004)

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______________________
OPINION OF THE COURT
______________________
PER CURIAM:
Appellant Robb Walker Freeman challenges the sentence he received from
the district court on remand. Freeman’s appellate counsel moved for permission to
withdraw as counsel because he could find no non-frivolous issues for appeal. He filed a
supporting brief invoking Anders v. California, 386 U.S. 738 (1967), and Third Circuit
Local Appellate Rule 109.2. The Clerk of the Court advised Freeman of his right to file a
pro se brief raising any points that might support his appeal, but he did not do so.
The district court had jurisdiction under 18 U.S.C. § 3231. Our jurisdiction
derives from the provisions of 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). Our
independent review of the record convinces us that there are no issues of even arguable
merit to be considered here, and we will accordingly grant counsel’s motion to withdraw
and affirm the district court’s judgment of sentence.
I
This is the third time Freeman is before a panel of this court to challenge his
sentence. Freeman pled guilty in March 2000 to receipt and possession of child
pornography, in violation of 18 U.S.C. §§ 2252(a)(2) and (a)(4)(B). Freeman initially
received a 72-month sentence, which was vacated (with the government’s consent) on his
first appeal, to allow resentencing in accordance with a case decided after Freeman was

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sentenced, United States v. Galo, 239 F.3d 572 (3d Cir. 2001).
On remand, as at the initial sentencing, the district court found that
Freeman’s criminal history category did not reflect the seriousness of his criminal history
and his likelihood of recidivism. Accordingly, under the United States Sentencing
Guidelines (“U.S.S.G.”), the court departed upward, raising his Criminal History from
Category I to Category III, resulting in a sentencing range of 63-78 months, and
sentencing Freeman to 70 months imprisonment. The court also imposed a special
condition on Freeman’s post-imprisonment supervised release, prohibiting him from
having a computer in his home or from using any computer with on-line access without
permission of his probation officer.
On Freeman’s second appeal, a panel of this court again remanded for
resentencing. United States v. Freeman, 316 F.3d 386 (3d Cir. 386). That panel held that
the district court did not follow the proper “ratcheting” procedure for upward departures;
it should not have granted a two-category upward departure without first determining
whether a one-category departure would suffice. Id. at 391 (citing United States v.
Hickman, 991 F.2d 1110, 1114 (3d Cir. 1993) (“[T]he court is obliged to proceed
sequentially through these categories. It may not move to the next higher category until it
has found that a prior category still fails to adequately reflect the seriousness of the
defendant’s past criminal conduct.”). The panel noted that the district court “was
justifiably concerned about Freeman’s extensive molestation of children in the past and

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his likelihood of committing such crimes in the future.” It expressly stated that this
decision did not “intimate that Category III is inappropriate,” noting that the court on
remand could “well find that Category II understates [Freeman’s] criminal history.” Id.
The panel also ruled that the prohibition on Freeman’s computer use during his
supervised release term was overbroad, and that the district court erred in failing to
provide a statement of reasons for imposing this special condition. Id. at 391-92.
The facts were fully stated in our earlier opinion, id. at 387-89, and because
we write only for the parties, it is unnecessary for us to restate them here.
II
On remand, the district court held a resentencing hearing on March 3, 2003,
which was continued until March 14, 2003, to allow the parties to answer questions raised
at the initial hearing and to further brief the government’s motion for an upward departure
from Criminal History Category I to Criminal History Category II. On March 14, the
district court granted that motion and issued a three-page order explaining its basis for
holding that Criminal History Category I did not “adequately reflect the seriousness of
[Freeman’s] past criminal conduct and the likelihood that he will commit other crimes.”
Based on testimony and investigative reports admitted into evidence at earlier sentencing
hearings, the court found, inter alia, that: (1) Freeman had two prior convictions for
sexual misconduct (including one for sexual assault of a minor) that were not included in
the criminal history calculation because of their age; (2) Freeman admitted to an

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undercover officer that he had recently photographed nude young boys for whom he was
babysitting, showing “a continued willingness to exploit minors and violate the trust of
their parents”; (3) Freeman showed the undercover agent the nude photographs of the
young boys for whom he was babysitting, as well as “numerous child pornography
photographs that he claimed to have taken himself”; (4) Freeman admitted to an
undercover officer that he “had molested over 50 children in his life.”
The sentencing judge stated that Freeman’s “conduct demonstrates the
likelihood that he will commit further crimes” and found him “a danger to the
community.” The court held that Freeman’s “consistent pattern of exploitation of
children” justified the requested upward departure. The judge further noted “it also
would [depart upward] for any of the reasons set forth above individually.” The court
explained that “had the defendant engaged in any of [those] acts of sexual misconduct ...,
such conduct would warrant at least a 1-level upward departure to a category II, as that is
the lowest possible criminal history category of similarly situated repeat offenders.” The
judge found that Freeman’s “conduct in this case as well as his history of crimes against
children warrants a sentence ... in the upper end of this guideline range” of 57 to 71
months. He sentenced Freeman to a 70-month term, the same sentence that was imposed
after the first remand.
As required by the remand, the court also modified the earlier restrictions
on Freeman’s computer use, imposing as specialized conditions of supervised release:

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(1) unannounced periodic inspections of computer equipment at his home and office,
including removal of equipment if a “preliminary inspection” suggests that he used the
equipment to access child pornography; (2) informing the probation department of all
computers to which he has access and any internet provider he uses; (3) accepting
installation of monitoring software on his personal and business computers; (4) “not
us[ing] a computer to access any material involving child pornography, including
pedophilia materials of all types, or depictions or descriptions of minors engaged in
sexually explicit conduct”; and (5) no “unsupervised contact with minors” other than
“incidental contact.” Freeman objected to conditions (2), (3), and (4) only. The judge
stated that he adopted the special conditions “to provide deterrence to future criminal
behavior and to protect the public from this type of offender” in light of “the history and
characteristics of the defendant, particularly in relation to his evident pedophilia.”
III
Freeman’s appointed counsel filed and served on Freeman a motion and
brief addressing “anything in the record that might arguably support the appeal” and
seeking leave to withdraw. See Anders, 386 U.S. at 744. Counsel avers that, “having
conscientiously examined the record in this case and discussed the same with Mr.
Freeman, [he] has determined that there are no non-frivolous issues to raise on appeal.”
Freeman was notified by order and letter that he could “file a pro se brief on the merits of
his appeal” within 30 days. He did not do so.

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“The duties of counsel when preparing an Anders brief are (1) to satisfy the
court that counsel has thoroughly examined the record in search of appealable issues, and
(2) to explain why the issues are frivolous.” United States v. Youla, 241 F.3d 296, 300
(3d Cir. 2001). To be adequate, an Anders brief must show that counsel “thoroughly
scoured the record in search of appealable issues,” and must “explain why the issues are
frivolous.” United States v. Marvin, 211 F.3d 778, 780-81 (3d Cir. 2000). Our role is to
determine, first, whether the brief fulfilled counsel’s responsibilities, and, second,
“whether an independent review of the record presents any nonfrivolous issues.” Youla,
241 F.3d at 300.
On appeal from a judgment entered on remand, the issues for appeal are
limited to those arising on remand. Any claim of error that "could and should have been
raised" on direct appeal is not subject to review in a subsequent appeal. United States v.
Pultrone, 241 F.3d 306, 307 (3d Cir. 2001). Recognizing this, Freeman’s counsel
identified and analyzed three issues that could give rise to an appealable issue in this case:
“(1) the upward departure in criminal history classification from Category I to Category
II; (2) the propriety of the special conditions of supervised release ...; and (3) the
adequacy of the District Court’s statement of reasons for imposing the special
conditions.” These are, of course, the issues that a previous panel of this court instructed
the district court to address on this remand. United States v. Freeman, 316 F.3d at 387.

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IV
After an independent review of the record in this case, we agree with
Freeman’s counsel that any claims challenging the district court’s judgment on remand
would be frivolous.
Upward Departure. The remand order directed the district court to apply
the “ratcheting requirement” and “consider[] whether the sentencing range provided by
Category II would be more appropriate to address Freeman’s criminal history and
likelihood of committing further crimes” before considering a two-level upward departure
to Category III. Id. at 391. The district court complied with this requirement in departing
upward only one level on remand. The 70-month sentence imposed is within the
Guideline range. The remand order found only procedural error in the prior sentence and
did not suggest that the length of the sentence was itself improper. Indeed, that order
explicitly recognized the district court’s “justifiabl[e] concern[] about Freeman’s
extensive molestation of children in the past and his likelihood of committing such crimes
in the future.” Id. at 390.
Nor does there appear to be any other basis to challenge the upward
departure. The Sentencing Guidelines permit upward departure where “reliable
information indicates that the defendant’s criminal history category substantially under-
represents the seriousness of the defendant’s criminal history or the likelihood that the
defendant will commit other crimes.” U.S.S.G. § 4A1.3(a)(1). A court may consider,

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inter alia, “prior sentence(s) not used in computing the criminal history category” and
“prior similar adult criminal conduct not resulting in a criminal conviction” in deciding
whether to depart upward. Here, the sentencing court made explicit findings regarding
both prior convictions (for related conduct) and other similar conduct that did not result in
any conviction, including Freeman’s admitted history of molesting children and of taking
(and keeping) pornographic pictures of children, as well as his recent photographing of
nude young boys. There is no non-frivolous basis for appealing the upward departure.
Special Conditions. The remand order found the prior special conditions
overly broad, holding it was “not reasonably necessary to restrict all of Freeman’s access
to the internet when a more limited restriction will do.” On remand, the district court
imposed far more targeted special conditions. We are satisfied that the three conditions to
which Freeman objected, as described above, are narrowly tailored to prevent improper
conduct without interfering with inoffensive computer and internet use and to allow the
probation office to monitor that behavior. In light of the uncontested evidence outlined
above, these conditions are well within the district court’s discretion. Moreover, the
district court has substantiated to our satisfaction “the reasoning behind its conditions of
supervised release,” id. at 391, namely, “to provide deterrence to future criminal behavior
and to protect the public from this type of offender” in light of “the history and
characteristics of the defendant, particularly in relation to his evident pedophilia.” We
also conclude that there are no nonfrivolous bases for challenging the special conditions.

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V
We will therefore affirm the judgment of sentence and grant counsel’s
motion to withdraw.

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