United States Court of Appeals, District of Columbia Circuit
September 22, 2016
from the United States District Court for the District of
Columbia (No. 1:11-cr-00376-1)
Jonathan S. Jeffress, Assistant Federal Public Defender,
argued the cause for appellant. With him on the brief was
A.J. Kramer, Federal Public Defender.
P. Seifert, Assistant U.S. Attorney, argued the cause for
appellee. With her on the brief was Elizabeth Trosman,
Assistant U.S. Attorney. Lauren R. Bates, Assistant U.S.
Attorney, entered an appearance.
Before: Henderson and Millett, Circuit Judges, and Sentelle,
Senior Circuit Judge.
Opinion Senior Circuit Judge Sentelle.
Brandon Rock was sentenced to 172 months' imprisonment
and 10 years of supervised release after pleading guilty to
distribution of child pornography. He appeals the length of
his sentence and the conditions of his supervised release.
For the reasons stated below, we affirm his sentence length
but vacate two of the release conditions.
to June 2011, appellant Brandon Rock was involved in a
romantic relationship with a woman who had an 11-year-old
daughter. Rock installed a hidden camera in the child's
bedroom at the woman's house. Over the course of six
months, Rock captured numerous video segments of the child in
her bedroom, some of which showed the child completely naked
from the front and back. From these videos Rock made still
pornographic images. Subsequently, Rock entered an internet
chat room where, unbeknownst to him, he began communicating
with undercover Metropolitan Police Department Detective
Timothy Palchak. Palchak was posing as an individual who had
access to a fictional 12-year-old girl. Rock told Palchak
about his camera recordings and sent several of the still
images to Palchak. Rock also sent Palchak 11 image files, 6
or 7 of which showed children in sexually explicit poses.
During these chats, Rock expressed interest in having sex
with the fictional 12-year-old and openly solicited Detective
Palchak's rape of the 12-year-old by offering to pay
Palchak with more images of child pornography if Palchak
would let him watch the assault. On June 17, 2011, Rock was
arrested at his home. His computers were confiscated. On
these computers were more than 100 videos containing child
pled guilty in district court to one count of distribution of
child pornography, in violation of 18 U.S.C. §
parties agreed to a sentencing range of between 144 and 180
months' imprisonment. Rock was sentenced to 172
months' imprisonment and 10 years' supervised
now appeals the length of his sentence and the special
conditions attached to his supervised release.
Rock argues that his sentence was procedurally unreasonable
because the district court expressly relied on the incorrect
premise that child pornography offenses involve a greater
rate of recidivism. According to Rock, the district court,
when deciding on its 172 months' sentence, relied on a
comment it made during sentencing concerning a higher rate of
recidivism for child pornography offenders. Rock argues that
this proposition articulated by the district court has been
disproved time and again, including in a definitive study
conducted by the United States Sentencing Commission. Citing
United States v. Lemon, 723 F.2d 922, 933 (D.C. Cir.
1983), Rock argues that where, as here, the district court
has relied on incorrect information in imposing a sentence,
the appropriate course is to remand for re-sentencing. In
response, the government acknowledges that at the close of
the sentencing hearing, in explaining the basis for
Rock's sentence, the court recognized that the type of
crime here "is so hard to know about and so easy to do
again and again." But, argues the government, the
district court promptly qualified its remark by noting that
recidivism is very hard to predict in this kind of crime. The