Supervised Release Terms for Child Pornography Charges – U.S. v. Gabriel

By Reddin & Singer


When an individual is found guilty of committing a crime, a sentence is not usually automatically imposed. Instead, a separate hearing is scheduled for sentencing and other matters. Leading up to the sentencing hearing, the government will create what is known as a pre-sentencing report, which sets forth the applicable sentencing factors to be considered by the judge and provides a recommendation for what the sentence should be. While this pre-sentencing report (PSR) focuses primarily on the jail time to be imposed, it also addresses other factors, such as conditions of probation or supervised release, or fines that must be paid. A recent case before the Seventh Circuit looks at PSRs for those convicted of child pornography-related offenses and when objections to PSRs can be made.

In United States v. Gabriel, Gabriel was charged with enticing a young woman to partake in a disturbing “program” of his whereby she would “train” troubled men around her age to improve their behavior by having sex with them. As part of this program, Gabriel took sexually explicit photographs of young women and posted them online in order to “entice” young men. In the process, Gabriel also had sexually explicit conversations with the young women. Gabriel was discovered and arrested after the young woman’s mother found her emails with Gabriel. He was charged with producing child pornography and ultimately found guilty.

Prior to the sentencing phase, the government’s probation office prepared a PSR, and each side was given an opportunity to prepare sentencing memoranda. In the PSR, the probation officer recommended extended jail time and a lifetime of supervised release, along with certain discretionary conditions. In the PSR, it was noted that any objection to such recommendations should be included in the parties’ sentencing memoranda, and the court further noted that objections should be raised by the parties when providing their position on sentencing. Despite these warnings, Gabriel did not file a sentencing memorandum or otherwise object to the PSR. Accordingly, the judge sentenced Gabriel to 15 years in prison and a lifetime of supervised release. It noted that lifetime supervised release was appropriate, given Gabriel’s “sexual deviancy” and the ease with which minors could be solicited online. In order to avoid Gabriel repeating his prior crimes, it found it necessary that he be under permanent supervision after his jail time was over. Again, Gabriel did not object.

On appeal, Gabriel contended that the judge erred in imposing lifetime supervised release because the judge did not explain or justify the long term, as required under the applicable statutes. The Seventh Circuit immediately rejected this argument, noting that Gabriel had been given multiple opportunities to object to the PSR and the conditions of sentencing through sentencing memoranda and at the sentencing hearing. At all times, he failed to make any objections. Additionally, the court noted that it had previously held that the justifications that a court provides for jail time apply equally to supervised release, and, in this case, the district court had made clear that it was imposing lifetime supervised release because of the significant risk that Gabriel posed. Since the supervised release was justified, and since Gabriel had waived any objection by failing to state it at an earlier time, the Seventh Circuit held that the district court was warranted in imposing lifetime supervised release for a defendant found guilty of producing child pornography.

While criminal defendants and defense attorneys are typically first and foremost concerned about defending their innocence at trial, it is important to remain vigilant during the sentencing phases of a criminal trial as well. If a defendant fails to carefully review the terms of jail time, probation, or supervised release, he or she can unwittingly give up significant rights and freedoms to the government. An experienced criminal defense attorney can assist you in carefully reviewing any PSR that is prepared for your case and in making all necessary objections. At Reddin & Singer, LLP, our experienced Milwaukee child pornography lawyers are available to assist you. To find out more about how to protect your rights during the sentencing phase, do not hesitate to contact the law offices of Reddin & Singer, LLP online or give us a call at (414) 271-6400.