Tenth Circuit Upholds Sentence for Supervised Release Violations Despite Lack of Child Porn Evidence – U.S. v. Olinger

September 26, 2011 by David S. Seltzer

One issue that comes up in my practice as a south Florida cyber crime criminal defense attorney is supervised release for people who have already been convicted of child sex crimes. For these defendants, supervised release frequently comes with strict limitations on what they may do online, including prohibitions on viewing or possessing any kind of pornography. In a few cases, the defendant may be barred from even using the Internet, or from specific uses of the Internet. Breaking these rules can land the defendant back in prison, as the defendant discovered in United States v. Olinger. In that case, the Tenth U.S. Circuit Court of Appeals declined to overturn the sentence given to Brian Charles Olinger for three violations of the terms of his supervised release. Oliger had argued that the sentence was unfairly inflated by allegations he was never charged with and the government could not prove, as well as exceeding three times the low end of the range.

Olinger was on supervised release after serving prison time for failure to register as a sex offender. He lived with his girlfriend at a hostel where another ex-offender, Andrew Wright, lived. Probation officers came to check on Wright and learned from a hostel staff member that Wright had been using a computer belonging to Olinger’s girlfriend. Wright admitted that he had used the computer with Olinger, but told probation officers that he was not responsible for “some things” on it that could get him in trouble. Officers found 1500 pornographic images, including 200 images of child pornography. Olinger ultimately faced and admitted to only three violations of his release: going online without the consent of the probation office, possession of alcohol and association with a known felon. Pornography charges were discarded because they could not be proven; five people in total had access to the computer, and some child pornography had been downloaded at times when Olinger was working. The sentencing range was 5 to 11 months; the court ultimately sentenced Olinger to 18, saying accessing a computer with child pornography on it was “very serious” even if he hadn’t viewed it. Olinger appealed.

He had no better luck with the Tenth U.S. Circuit Court of Appeals. Olinger argued on appeal that the sentence was unreasonable because it was more than triple the minimum part of the sentencing range, and because it reflects the court’s disapproval of the child pornography on the computer, which Olinger was not charged with possessing. However, because Olinger didn’t raise objections at the time, the court said, it reviewed those decisions only for plain error. Construing his argument as an argument against the factors the court considered, the Tenth said Olinger failed to show plain error. The language of the court’s decision did not show reliance on the wrong factors, it said. Furthermore, the appeals court said the court’s statement that “using a computer upon which there was child pornography… was a very serious violation” “clearly refers to the defendant’s breach of trust in admitting a particularly serious violation of his supervised release.” Thus, it found no procedural error. It also found no error in the length of the sentence, because the circumstances of the case included Olinger’s previous flight from justice, multiple violations of the supervised release and the child pornography. Thus, the Tenth upheld all of the sentence.

This decision disappoints me as a Miami-Dade sex offender registration defense lawyer. In a trial, prosecutors are restricted in what they may tell juries because irrelevant information about past crimes, for example, could unfairly hurt the defendant. In this case, the child pornography on the computer seems to have strongly influenced the decisions of both the district court and the Tenth Circuit, even though Olinger may not have actually possessed it or known it was there. Of course, he may be fully responsible for it, but there’s no way for prosecutors to show this. In criminal trials, the standard for convicting someone is high — beyond a reasonable doubt — in part to avoid putting an innocent person in prison in situations like this. People on supervised release and parole have fewer rights, and as this case shows, they can be convicted and sent back to prison easily, even for actions that are perfectly legal for you and me. That’s why, as a Fort Lauderdale child pornography defense attorney, I work hard to keep these kinds of convictions off my clients’ records.

If you’re facing charges for any kind of computer-related crime, you need the legal and technical expertise of Seltzer Law, P.A. To learn more about us or tell us about your case, call us for a free consultation at 1-888-THE-DEFENSE (1-888-843-3333) or send us an email.

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