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United States v. Shultz

United States Court of Appeals, Sixth Circuit

October 23, 2013

UNITED STATES of America, Plaintiff-Appellee,
v.
Robert Thomas SHULTZ, Defendant-Appellant.

Argued: Oct. 9, 2013.

Page 617

[Copyrighted Material Omitted]

Page 618

ARGUED:

Laura E. Davis, Federal Defender Services Of Eastern Tennessee, Inc., Knoxville, Tennessee, for Appellant.

Luke A. McLaurin, United States Attorney's Office, Knoxville, Tennessee, for Appellee.

ON BRIEF:

Laura E. Davis, Federal Defender Services of Eastern Tennessee, Inc., Knoxville, Tennessee, for Appellant. Luke A. McLaurin, Matthew T. Morris, United States Attorney's Office, Knoxville, Tennessee, for Appellee.

Before: KEITH and SUTTON, Circuit Judges; BLACK, District Judge. [*]

OPINION

SUTTON, Circuit Judge.

Robert Shultz, who stands convicted of receiving and possessing child pornography, appeals from the district court's imposition of two special conditions of supervised release. We affirm.

Page 619

I.

Over a span of three or four years, Shultz downloaded hundreds of images and dozens of videos of child pornography. Some files depicted children as young as six; many showed sadistic, masochistic or violent behavior. Shultz used file-sharing software to make some of his pornography available for others to download.

In 2010, Shultz pled guilty to receiving child pornography, 18 U.S.C. § 2252A(a)(2)(A), and to possessing child pornography, 18 U.S.C. § 2252A(a)(5)(B). The district court sentenced Shultz to 171 months in prison followed by lifetime supervised release subject to a series of special conditions. Shultz appealed, claiming that the district court improperly lengthened his prison term in order to promote his rehabilitation. We agreed, see Tapia v. United States, __ U.S. __, 131 S.Ct. 2382, 2385, 180 L.Ed.2d 357 (2011), and sent the case back for a fresh sentencing. This time the district court imposed a sentence of 168 months in prison, again followed by lifetime supervised release, again subject to a series of special conditions.

Shultz appeals once more. He now challenges two of the district court's twelve conditions of supervised release: condition four, which restricts his contact with children, and condition six, which restricts his possession of sexually arousing material.

II.

The government says that Shultz forfeited his challenge to the supervised release conditions because he did not argue the point in his first appeal. But when Shultz objected to these conditions during his re-sentencing, the government said nothing about forfeiture in response. Shultz may have forfeited his challenge, but if so the government ...


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