United States v. Christopher J. Abbate (5th Cir. August 2020)

The Federal Docket

Supervised Release/Conditions – The defendant’s term of supervised release included overbroad conditions prohibiting him from owning or possessing a gaming console and was narrowed to only prohibit consoles that allowed internet communciation.

Christopher J. Abbate was convicted of possessing child pornography and sentenced to 120 months of imprisonment followed by a lifetime term of supervised release.  He violated two conditions of his supervised release that prohibited possession of any pornographic material and use or possession of any gaming console or device without permission from his probation officer.

Upon appeal, the Court reviewed the district court’s supervised release condition prohibiting access to any pornographic material for abuse of discretion.  The Court held that the term “pornographic” was not vague since 18 U.S.C. § 2256 defines child pornography as “any visual depiction…of sexually explicit conduct” and remains unambiguous after removing the word “child.” The Court also held that the condition did not result in greater deprivation of liberty than reasonably necessary since sexually stimulating materials involving adults is intertwined with defendant’s interest in minors and his psychotherapist cautioned possession of any sexually explicit material could result in recidivism.

The Court reviewed the district court’s supervised release condition prohibiting use or possession of game consoles or devices for plain error.  The Court held that the condition was overbroad and narrowed it to a commonsense construction that the intent was to prohibit consoles that allowed internet communication.  The district court’s judgment was affirmed as modified.

Appeal from the Northern District of Texas

Per Curiam Opinion by Davis, Jones, and Willett

Click here to read the opinion.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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