§580 Supervised Release
(U.S.S.G. §5D)(for Revocation, see §800)
Supreme Court holds pretrial detention on new charge tolls supervised release term. (580)(600) Under 18 U.S.C. § 3624(e), a “term of supervised release does not run during any period in which the person is imprisoned in connection with a conviction for a Federal, State, or local crime.” The Supreme Court held that pretrial detention later credited as time served for a new conviction is “imprison[ment] in connection with a conviction” and thus tolls the supervised release term under § 3624(e), even if the court must make the tolling calculation after learning whether the time will be credited. Justice Thomas wrote the opinion; Justice Sotomayor dissented, in an opinion joined by Justices Breyer, Kagan, and Gorsuch. Mont v. U.S., 587 U.S. __,139 S.Ct. __ (June 3, 2019).
3d Circuit upholds special conditions of release for fraud defendant. (580) At defendant’s fraud sentencing, the district court imposed four special conditions of supervised release: (1) barring defendant from purchasing digital devices without approval; (2) barring defendant from conducting certain financial transactions without approval; (3) imposing costs and fees on defendant; and (4) requiring defendant to “cooperate in the collection of DNA as directed by the Probation Officer.” The Third Circuit upheld these conditions, finding that they were justified by 18 U.S.C. § 3583, were not vague, and did not force defendant to pay funds he did not have. U.S. v. Banks, __ F.4th __ (3d Cir. Nov. 30, 2022) No. 19-3812.
8th Circuit affirms mental health treatment, GPS and polygraph conditions of release. (580) At defendant’s supervised release revocation hearing for promoting prostitution, the district court imposed three new special conditions of supervised release: mental health treatment, GPS monitoring, and polygraph testing. The district court did not explain these conditions, but the Eighth Circuit found them justified by district court’s findings that defendant assaulted his victim, left the jurisdiction without notifying Probation, and lied to Probation. U.S. v. Clower, __ F.4th __ (8th Cir. Dec. 1, 2022) No. 22-1389.
5th Circuit reverses supervised release term that was based on time it would take to appeal. (580) Defendant was found guilty of illegal reentry after deportation. At sentencing, the district court imposed a supervised release term to account for the time defendant would appeal his conviction. The Fifth Circuit reversed because the timing of an appeal is not a proper fact to consider in imposing supervised release. U.S. v. Barcenas-Rumualdo, __ F.4th __ (5th Cir. Nov. 18, 2022) No. 21-50795.
9th Circuit reverses supervised release conditions that improperly delegated treatment to Probation. (580) At defendant’s sentencing for drug trafficking, the district court imposed two special supervised release condition that required defendant to engage in mental health and substance abuse treatment. Both conditions allowed Probation to supervise defendant’s participation in the programs. The Ninth Circuit reversed and remanded to clarify Probation’s authority, because “plainly read,” the supervised release conditions improperly delegated to a non-judicial officer the nature or extent of defendant’s punishment. U.S. v. Nishida, __ F.4th __ (9th Cir. Nov. 17, 2022) No. 21-10070.
1st Circuit says challenge to condition requiring defendant to complete his education was premature. (580) In sentencing defendant to prison, the district court also ordered, as a condition of supervised release, that defendant complete his high school education. On appeal, the First Circuit said it was “sympathetic” to defendant’s challenge to this condition, but found his challenge was premature because defendant may complete high school while incarcerated. Defendant can challenge this condition when he is released from prison. U.S. v. Rodriguez-Monserrate, __ F.4th __ (1st Cir. Dec. 30, 2021) No. 20-1905.
5th Circuit allows court to delegate to Probation the length of time in halfway house. (580) As a condition of supervised release, the district court ordered defendant to reside in a residential reentry center for at least four months but no longer than 12 months. The Fifth Circuit held that this “modest delegation” of authority to Probation was proper. U.S. v. Ortega, __ F.4th __ (5th Cir. Dec. 10, 2021) No. 20-10491.
9th Circuit strikes supervised release condition that was not orally pronounced. (580) The written judgment included a supervised release condition that the court had not orally pronounced at sentencing . This was contrary to U.S. v. Wise, 391 F.3d 1027 (9th Cir. 1994), which requires notice before imposing a supervised release condition that is not on the list of mandatory or discretionary conditions. The government argued that Wise had been overruled by Irizarry v. U.S., 553 U.S. 708 (2008), which held that no notice is required for an upward variance from the guidelines. The Ninth Circuit rejected the government’s argument, holding that Irizarry was easily distinguishable and did not affect Wise’s requirement of advance notice before imposing a supervised release condition outside the list. U.S. v. Reyes, __ F.4th __ (9th Cir. Nov. 26, 2021) No. 20-50016.
8th Circuit affirms supervised release term despite over-sentencing as Armed Career Criminal. (540) (580) In 2004, defendant was convicted of being a felon in possession of a firearm and sentenced under the Armed Career Criminal Act to 180 months. In 2016, after Johnson v. U.S., 576 U.S. 591 (2015), the district court resentenced defendant to time served and a period of supervised release. Defendant argued that because he had served more than the ten-year statutory maximum for possession of a firearm by a felon, his supervised release sentence was illegal. The Eighth Circuit held that the maximum term of supervised release is governed by the statute and is unaffected by the maximum term of imprisonment. U.S. v. Childs, __ F.4th __ (8th Cir. Nov. 8, 2021) No. 20-3234.
10th Circuit reverses release conditions for lack of adequate explanation. (580) Defendant was convicted of impersonating a government employee after he told aliens that he was a border patrol officer. His sentence included supervised release conditions requiring him to complete community service, submit to search, and not to enter into any contracts without permission from Probation. The district court did not explain these conditions, and defendant did not object to them. Nevertheless, the Tenth Circuit reversed the conditions, finding that the district court’s failure to explain or justify them was clear error. U.S. v. Benvie, __ F.4th __ (10th Cir. Nov. 18, 2021) No. 20-2147.
9th Circuit finds no constitutional right to use marijuana on supervised release. (580) Defendant moved to amend his supervised release conditions to allow him to use medical marijuana as permitted by California law. Defendant submitted a letter from a doctor stating that marijuana was the best medical solution for defendant’s pain issues. The Ninth Circuit held that marijuana is a controlled substance under federal law and therefore its use was properly barred by a number of defendant’s supervised release conditions. Under Raich v. Gonzalez, 500 F.3d 850 (9th Cir. 2007) a defendant has no fundamental right under the Due Process Clause to use marijuana. U.S. v. Langley, __ F.4th __ (9th Cir. Nov. 16, 2021) No. 20-50119
2d Circuit finds mistaken colloquy about supervised release did not justify plea withdrawal. (580)(790) At defendant’s guilty plea colloquy for drug trafficking, the district court erroneously said the mandatory supervised release term was five years, when in fact it was ten years. The PSR correctly said the minimum term was ten years, and the defendant did not object to the PSR. Nevertheless, sentencing was postponed to allow defendant to move to withdraw his plea. In the meantime, the First Step Act was passed, making the effect of the court’s error harmless. When defendant finally moved to withdraw his plea, the district court denied the motion on the ground that its error was harmless, and the Second Circuit agreed. U.S. v, Freeman, __ F.4th __ (2d Cir. Nov. 4, 2021) No. 19-2432.
3d Circuit says probation officer’s relationship with defendant’s girlfriend did not require early end to supervised release. (580)(760) Defendant moved under 18 U.S.C. § 3583(e)(1) to end his supervised release early on the ground that his probation officer’s “personal relationship” with his girlfriend caused them to break up. The district court denied the motion, finding that the probation officer’s purported misconduct did not make defendant less amenable to supervised release. The Third Circuit affirmed, noting that the district court may have erred by finding that the probation officer’s conduct may have affected defendant’s rehabilitation, but the district court properly found that the probation officer’s alleged misconduct did not justify early termination of supervised release. U.S. v. Sheppard, __ F.4th __ (3d Cir. Nov. 3, 2021) No. 20-3088.
5th Circuit affirms conditions of supervised release despite court’s failure to orally reference them. (580) Defendant pleaded guilty to drug-trafficking and firearms offenses. The presentence report recommended imposition of both mandatory and special conditions of supervised release. At sentencing, the court failed to orally cite its standing order that those supervised release conditions would be imposed, but the conditions were spelled out in its written judgment. The Fifth Circuit held that the conditions were a valid part of the sentence, noting that defendant had an opportunity to object to the conditions in the presentence report and did not challenge them. U.S. v. Martinez, __ F.4th __ (5th Cir. Oct. 20, 2021) No. 20-50984.
10th Circuit enforces special conditions of supervised release that were referenced at sentencing. (580) At defendant’s sentencing for revocation of his supervised release, the district court re-imposed special conditions of supervised release that had previously been imposed on defendant. The district court told defendant that defendant would have to familiarize himself with the special conditions and that additional special conditions would be included in the written judgment. The district court did not otherwise mention two of the special conditions of supervised release, but included them in its written judgment. The Tenth Circuit held that the written judgment merely clarified an ambiguity in the oral pronouncement of sentence and did not require the special conditions to be vacated. U.S. v. Bruley, __ F.4th __ (10th Cir. Oct. 19, 2021) No. 20-6078.
10th Circuit upholds condition of release banning internet access. (580) After defendant violated his supervised release four times by possessing child pornography, the district court imposed a condition absolutely banning defendant from any further internet access. The Tenth Circuit found this condition “extreme,” but upheld it as a response to defendant’s repeated violations of his supervised release. U.S. v. Egli, __ F.4th __ (10th Cir. Sept. 23, 2021) No. 19-4140.
8th Circuit upholds condition barring child porn defendant from accessing adult pornography. (580) Defendant pleaded guilty to distributing child pornography after he solicited an undercover FBI agent to arrange for him to have sex with a minor. As a special condition of supervised release, the district court ordered him not to have any contact with adult pornography. The Eighth Circuit upheld the condition, finding it was appropriate for a defendant convicted of distributing child pornography. U.S. v. Adams, __ F.4th __ (8th Cir. Sept. 14, 2021) No. 20-2351.
8th Circuit allows supervised release condition barring contact with defendant’s own child. (580) Defendant solicited an undercover FBI agent to arrange for him to have sex with a minor, and was convicted of distributing child pornography. Aa a condition of supervised release, the court barred defendant from having any contact with minors under 18 without Probation’s permission. Defendant argued that this was improper because he had a child under 18. The Eighth Circuit upheld this condition, finding it was proper to bar defendant from having any contact with his own child without permission. U.S. v. Adams, __ F.4th __ (8th Cir. Sept. 14, 2021) No. 20-2351.
5th Circuit orders written judgment to conform to oral pronouncement of sentence. (580)(750) At the sentencing hearing, the district court ordered defendant to serve five years of supervised release on one charge and three years on another charge. However, the written judgment specified five years on each count. The Fifth Circuit ordered the district court to conform the written judgment to the oral pronouncement of sentence. U.S. v. Esajeda, __ F.4th __ (5th Cir. Aug. 11, 2021) No. 19-50481.
11th Circuit affirms condition requiring defendant to notify third parties of risks. (580) As a condition of supervised release, defendant was ordered to inform third parties of the risks that he posed to those parties by virtue of his criminal history. The district court granted the probation officer’s motion to enforce this condition when defendant worked at a private residence. The Eleventh Circuit affirmed, ruling that the court’s enforcement order did not broaden the supervised release condition. U.S. v. Cordero, __ F.4th __ (11th Cir. Aug. 4, 2021) No. 18-10837.
11th Circuit upholds denial of motion to modify condition barring use of computer. (580) A condition of supervised release for child pornography offenses barred defendant from accessing a computer. Later, he moved to modify this condition, and the district court denied the motion, stating that it had reviewed defendant’s motion, which discussed the 18 U.S.C. § 3553(a) factors at length. On appeal, the Eleventh Circuit found no abuse of discretion, adding that a challenge to the legality of a supervised release condition is limited to direct appeal or a 28 U.S.C. § 2255 motion. U.S. v. Cordero, __ F.4th __ (11th Cir. Aug. 4, 2021) No. 18-10837.
11th Circuit affirms denial of motion for early termination of supervised release. (580) Defendant was serving a supervised release term after conviction for child pornography. He moved for early termination of supervised release, asserting that he was not a risk of recidivism. The district court denied the motion and the Eleventh Circuit affirmed, holding that the court properly considered the applicable 18 U.S.C. § 3553(a) factors. U.S. v. Cordero, __ F.4th __ (11th Cir. Aug. 4, 2021) No. 18-10837.
2d Circuit reverses release condition requiring attendance at restorative justice program. (580) At sentencing for possession of a firearm by a felon, the district court required defendant to attend a program run by Partners in Restorative Initiatives, which could include “a sentencing circle,” “a listening circle,” and stories about people who had suffered for their beliefs. The Second Circuit reversed, ruling that the condition would leave a reasonable person guessing as to what it entailed, and finding that it did not inform defendant about what would constitute a breach. The court noted that Probation had no prior involvement with the program, and should not have to determine what the program consists of. U.S. v. Carlineo, __ F.3d __ (2d Cir. May 25, 2021) No. 20-1020.
2d Circuit affirms 20-year term of supervised release in child porn case. (580) Defendant pleaded guilty to child pornography offenses and was sentenced to 160 months in prison and 20 years of supervised release. The Second Circuit held that the district court’s discussion of the 18 U.S.C. § 3553(a) factors for the sentence was sufficient to support the 20-year term of supervised release, and the length was not substantively unreasonable. U.S. v. Williams, __ F.3d __ (2d Cir. May 26, 2021) No. 20-1021.
4th Circuit reverses lifetime term of supervised release for insufficient explanation. (580) At defendant’s sentencing for receipt of child pornography, the district court imposed a lifetime term of supervised release, adding that defendant could come back later for a reduction. The Fourth Circuit reversed for failure to adequately explain why it imposed lifetime supervised release. The court’s statement that supervised release could be modified later was insufficient. U.S. v. Hardin, __ F.3d __ (4th Cir. May 25, 2021) No. 19-4556.
9th Circuit says condition barring defendant from places frequented by children is not vague. (580) At defendant’s sentencing for distribution of child pornography, the district court imposed a supervised release condition barring defendant from going any place “primarily used by children.” Defendant argued that this condition was impermissibly vague because it did not give notice of what “primarily used by children” means and was overbroad. The Ninth Circuit held that the condition was not unconstitutionally vague or overbroad because the words used in the condition were reasonably subject to definition. U.S. v. Gibson, __ F.3d __ (9th Cir. May 20, 2021) No. 20-10074.
9th Circuit upholds condition requiring child porn defendant to notify others of his record. (580) Defendant was convicted of distributing child pornography. At sentencing, the district court imposed a supervised release condition requiring, if Probation determined, that defendant notify any person that he posed a risk to them. The Ninth Circuit ruled that Probation was limited to requiring defendant to notify others of his criminal record. With this limitation, the panel held that the notice requirement was valid. U.S. v. Gibson, __ F.3d __ (9th Cir. May 20, 2021) No. 20-10074.
11th Circuit says search conditions can be imposed on non-sex offenders. (580) At defendant’s sentencing for possession of a firearm by a felon, the district court imposed a supervised release condition that directed defendant to submit his residence, car, and electronic devices to search by Probation. The Eleventh Circuit noted that search conditions are usually imposed on sex offenders, but could be imposed on non-sex offenders who have long criminal records. Because defendant had a long criminal record (he had been convicted of illegally possessing guns six times), the court upheld the search condition. U.S. v. Taylor, __ F.3d __ (11th Cir. May 21, 2021) No. 20-10742.
11th Circuit allows new supervised release term after First Step Act crack sentence reduction. (250)(580) Defendant received a life term for crack cocaine offenses. After the First Step Act reduced crack penalties, defendant moved for a reduced sentence. The district court reduced the sentence to 262 months, or time served, but added an eight-year term of supervised release. The Eleventh Circuit affirmed, holding that the First Step Act permits a court to impose a term of supervised release when it grants a crack sentence reduction. U.S. v. Edwards, __ F.3d __ (11th Cir. May 13, 2021) No. 19-13366.
11th Circuit says court, in granting First Step Act crack motion, may keep supervised release terms. (250)(580) Defendant committed crack cocaine and firearms offenses. After the First Step Act reduced crack penalties, he filed a motion for reduction of his sentence. While this motion was pending, the district court reduced his sentence to time served as a compassionate release decision. However, the court kept in place the supervised release terms on his crack and firearms offenses. The Eleventh Circuit affirmed, holding that the district court had discretion to maintain defendant’s supervised release obligations. U.S. v. Potts, __ F.3d __ (11th Cir. May 19, 2021) No. 19-12061.
D.C. Circuit reverses supervised release where court relied on child sex abuse guideline in adult case. (580) At defendant’s sentencing for an offense involving the sexual exploitation of adults, the district court mistakenly relied on § 5D1.2(b)(2), which only applies to offenses involving minors. As a result, it imposed a supervised release term of five years to life, when under § 5D2.1(c), the supervised release term was limited to five years. The D.C. Circuit reversed and remanded for resentencing to within the five-year limit for supervised release. U.S. v. Parks, __ F.3d __ (D.C. Cir. Apr. 27, 2021) No. 19-3081.
8th Circuit upholds release condition requiring notification of risk to other people. (580) As a supervised release condition for defendant’s drug-trafficking, the district court authorized Probation to require defendant to notify a person that defendant posed a risk to that person. The Eighth Circuit rejected defendant’s arguments that this condition was vague or improperly delegated a judicial function to Probation. The requirement for Probation to identify a person who defendant must notify dispelled any vagueness risk and Probation did not have ultimate authority over defendant’s compliance with the condition. U.S. v. Janis, __ F.3d __ (8th Cir. Apr. 27, 2021) No. 20-1077.
9th Circuit upholds term of supervised release even though defendant would be deported. (580) Under § 5D1.1, a district court should not “ordinarily” impose a term of supervised release on a defendant who is going to be deported. Defendant pleaded guilty to illegal reentry after deportation and would be deported after he served his term of incarceration. The district court nevertheless imposed a supervised release term. On appeal, the Ninth Circuit affirmed, noting that the term “ordinarily” does not bar a term of supervised release and that the district court had thoroughly explained the need for deterrence in imposing a supervised release term. U.S. v. Figueroa-Beltran, __ F.3d __ (9th Cir. Apr. 27, 2021) No. 16-10388.
5th Circuit finds no improper delegation of drug treatment to Probation. (580) At defendant’s sentencing for possession of a firearm by a felon, the district court imposed a special condition of supervised release requiring him to participate in a drug-treatment program. Probation was to supervise the “provider. location, modality, duration, intensity” of the drug-treatment program. The Fifth Circuit found that this was not an improper delegation to Probation because defendant was required to participate in drug treatment, and Probation only supervised incidental aspects of that participation. U.S. v. Huerta, __ F.3d __ (5th Cir. Apr. 21, 2021) No. 20-50343.
6th Circuit says discussion of sentencing factors also supported supervised release conditions. (580) At defendant’s sentencing for drug trafficking, the district court imposed several special conditions of supervised release. On appeal, defendant argued that the court failed to sufficiently explain these conditions. The Sixth Circuit found that the district court thoroughly discussed the 18 U.S.C. § 3553(a) factors and that discussion provided a sufficient explanation for the supervised release conditions. Moreover, any error was harmless because the record supported each of the supervised release conditions. U.S. v. Booker, __ F.3d __ (6th Cir. Apr. 14, 2021) No. 20-1047.
6th Circuit finds oral and written judgments conveyed the same supervised release conditions. (580) At sentencing, the district court orally imposed a supervised release condition requiring defendant not to possess a cell phone without Probation’s permission and to provide the bill every month to Probation. The written judgment stated these conditions as barring any cell phone use or possession without Probation’s permission and requiring defendant to provide Probation with the number of any cell phone and his monthly home and cell phone bills. The Sixth Circuit found no inconsistency, and held that the oral and written judgments both conveyed the same message. U.S. v. Booker, __ F.3d __ (6th Cir. Apr. 14, 2021) No. 20-1047.
11th Circuit upholds supervised release condition barring defendant from owning a computer. (580) Defendant was convicted of attempting to persuade a minor to engage in sexual activity by use of a computer. At sentencing, the district court imposed a condition of supervised release barring defendant from using a computer without the court’s permission. Defendant argued that this violated Packingham v. North Carolina, 137 S.Ct. 1730 (2017), which struck down a ban prohibiting registered sex offenders from accessing social networking websites that permitted children to be present. The Eleventh Circuit found Packingham distinguishable, noting that the ban in that case applied to sex offenders even after they had completed their sentences. Moreover, the restriction in this case allowed defendant to obtain court permission to use a computer. U.S. v. Bobal, __ F.3d __ (11th Cir. Nov. 30, 2020) No. 19-10678.
7th Circuit finds defendant waived First Amendment challenge to release condition. (580)(855) Defendant pleaded guilty to possession of child pornography. Before sentencing, defendant received all proposed supervised release conditions and discussed them with his attorney. At sentencing, defendant objected to several of the conditions. However, for the first time on appeal, defendant raised a First Amendment objection to one of the conditions of release. The Seventh Circuit found that defendant waived this objection by failing to raise it in the district court, adding that the fact that the objection was based on a constitutional right did not affect the waiver. U.S. v. Barrett, __ F.3d __ (7th Cir. Nov. 30, 2020) No. 19-2254.
2d Circuit says requiring defendant to pay for drug abuse treatment was contingent on ability to pay. (580) At defendant’s sentencing for escape, the district court imposed supervised release conditions requiring defendant to contribute to the cost of substance abuse and mental health conditions of release. The district court found that defendant was unable to pay a fine, but made no finding about his ability to pay for substance abuse and mental health treatment. On appeal, the Second Circuit ruled that the conditions requiring defendant to contribute to the cost of treatment were contingent on defendant’s ability to pay, due to the district court’s finding that defendant was unable to pay a fine,. U.S. v. Rasheed, __ F.3d __ (2d Cir. Nov. 25, 2020) No. 18-3479.
6th Circuit finds condition barring gambling made it more likely defendant could pay restitution. (580) (610) Defendant pleaded guilty to defrauding the social security administration, and the district court ordered her to pay more than $48,000 in restitution. Defendant fell behind in her payments, and the district court modified the supervised release conditions to bar her from entering gambling establishments. The Sixth Circuit upheld the condition, finding that barring defendant from gambling helped her ability to pay restitution. U.S. v. Budzynski, __ F.3d __ (6th Cir. Nov. 25, 2020) No. 20-1264.
6th Circuit upholds search condition imposed on social security fraud defendant. (580) Defendant pleaded guilty to social security fraud and was sentenced to probation. At a hearing to modify defendant’s supervised release conditions, the district court imposed a condition allowing a search of defendant’s premises on probable cause that she had violated her probation conditions. The Sixth Circuit affirmed. The court found this condition was reasonably related to defendant’s history and characteristics because it allowed the district court to determine if defendant could pay her restitution. U.S. v. Budzynski, __ F.3d __ (6th Cir. Nov. 25, 2020) No. 20-1264.
9th Circuit finds lifetime supervised release was not a penalty for maintaining innocence. (580) At defendant’s sentencing for distributing child pornography, the district court varied downward but imposed a lifetime term of supervised release. Defendant argued that the court failed to adequately explain the lifetime term and that it was a penalty him for maintaining his innocence. The Ninth Circuit rejected the argument, finding that the district court applied the applicable factors and gave a number of valid reasons for imposing the lifetime term of supervised release. U.S. v. Rusnak, __ F.3d __ (9th Cir. Nov. 25, 2020) No. 17-10137.
9th Circuit affirms condition allowing Probation search without reasonable suspicion. (580) Defendant was convicted of distributing child pornography. At sentencing, the district court imposed a term of supervised release that required defendant to submit his person and property to a search by his Probation officer. On appeal, the Ninth Circuit rejected defendant’s argument that the condition should have been limited to searches based on reasonable suspicion, holding that reasonable suspicion is not required for a Probation search. U.S. v. Rusnak, __ F.3d __ (9th Cir. Nov. 25, 2020) No. 17-10137.
5th Circuit says decision to make drug treatment “inpatient or outpatient” cannot be delegated to Probation. (580). The Fifth Circuit held that the district court abused its discretion by giving the probation officer the option to choose between inpatient and outpatient drug treatment. The panel relied on U.S. v. Barber, 865 F.3d 837, 839 (5th Cir. 2017) and U.S. v. Franklin, 838 F.3d 564, 568 (5th Cir. 2016), to hold that, because of the defendant’s liberty interests, this is a “core judicial function” that may not be delegated. The panel noted that its holding was in accord with three other circuits that have ruled on the issue. U.S. v. Matta, 777 F.3d 116, 122–23 (2d Cir. 2015); U.S. v. Mike, 632 F.3d 686, 695–96 (10th Cir. 2011); U.S. v. Esparza, 552 F.3d 1088, 1091 (9th Cir. 2009) (per curiam). U.S. v. Martinez, __ F.3d __ (5th Cir. Oct. 27, 2020) No. 20-20184.
5th Circuit allows Probation to decide if drug treatment is “inpatient or outpatient” [apparently unaware of contrary opinion filed the same day]. (580) The district court imposed a condition of supervised release requiring defendant to participate in alcohol and drug treatment, but left it to Probation to decide whether the treatment would be inpatient or outpatient. On appeal, a Fifth Circuit panel noted that three Circuits have held that this is an improper delegation to Probation. See U.S. v. Matta, 777 F.3d 116, 122–23 (2d Cir. 2015); U.S. v. Mike, 632 F.3d 686, 695–96 (10th Cir. 2011); U.S. v. Esparza, 552 F.3d 1088, 1091 (9th Cir. 2009) (per curiam). Nevertheless, the panel relied on U.S. v. Franklin, 838 F.3d 564, 568 (5th Cir. 2016), to hold that “inpatient or outpatient” is simply a detail that can be properly delegated to Probation. [Note: the panel appeared to be unaware of a contrary ruling by a different Fifth Circuit panel in U.S. v. Martinez, __ F.3d __ (5th Cir. Oct. 27, 2020) No. 20-20184, decided the same day.] U.S. v. Medel-Guadalupe, __ F.3d __ (5th Cir. Oct. 27, 2020) No. 19-40901.
10th Circuit reverses condition banning adult pornography without supporting reasons. (120)(580) Defendant pleaded guilty to receiving child pornography. At sentencing, the district court imposed condition of supervised release barring defendant from accessing any adult pornography. Defendant argued that the condition interfered with his First Amendment right to access legally protected materials. The Tenth Circuit vacated the condition for insufficient findings to support it. In particular, the district court failed to explain how defendant’s access to adult materials would aid in his rehabilitation or protect the public. U.S. v. Koch, __ F.3d __ (10th Cir. Oct. 9, 2020) No. 19-8034.
1st Circuit reverses supervised release condition barring contact with daughter. (580) At defendant’s sentencing in Puerto Rico, the district court imposed a supervised release condition barring defendant from having any contact with his then 11-year-old daughter without permission of Probation. The district court acted on a Spanish-language petition that the child’s mother had filed in a Puerto Rican court. The First Circuit reversed because the government violated the Jones Act, 48 U.S.C. § 864, which requires proceedings in Puerto Rican federal court to be conducted in English. The court also reversed because defendant had already spent 19 months under the no-contact condition and the three-year term was excessive. The case was remanded to allow the district court to consider defendant’s conduct since the condition was imposed. U.S. v. Muñiz-López, __ F.3d __ (1st Cir. Oct. 1, 2020) No. 19-1086.
5th Circuit strikes supervised release condition not mentioned at oral pronouncement of sentence. (580) At defendant’s sentencing for possession of a firearm by a felon and other offenses, the district court did not mention a supervised release condition requiring defendant to obtain mental health treatment, that was later included in the written judgment. The Fifth Circuit found that defendant did not have an opportunity to object to the condition and ordered it stricken. U.S. v. Fields, __ F.3d __ (5th Cir. Oct. 2, 2020) No. 19-11639.
5th Circuit says court need not repeat verbatim release conditions identified in presentence report. (580) Prior to defendant’s sentencing for firearms and drug-trafficking offenses, the presentence report set out three supervised release conditions to which defendant would be subject. At sentencing, the court imposed the same three conditions in abbreviated form but did not include the details in the presentence report. The Fifth Circuit held that a district court need not set forth verbatim the applicable supervised release conditions, as long as defendant has an opportunity to object to them. U.S. v. Grogan, __ F.3d __ (5th Cir. Oct. 2, 2020) No. 18-50433.
5th Circuit says 10-year ban on computer or internet use is unreasonable. (580) Defendant was convicted of receipt and possession of child pornography. At sentencing, the district court imposed supervised release conditions barring defendant for 10 years from possessing or using computers or accessing the internet. The Fifth Circuit held that the conditions were not tailored in length and vacated them. The panel said that the conditions would have been more acceptable if they had required Probation’s permission. U.S. v. Becerra, __ F.3d __ (5th Cir. Oct. 6, 2020) No. 19-50447.
5th Circuit remands condition where it was unclear whether defendant received notice. (580) Prior to sentencing for drug trafficking, a sentencing recommendation document was prepared listing special conditions of supervised release. After sentencing, the written judgment listed one of the special conditions that had been in the sentencing recommendation. On appeal, the Fifth Circuit remanded to determine whether defendant had received the sentencing recommendation before sentencing, ruling that if the defendant did not receive it, the special condition must be stricken. U.S. v. Omigie, __ F.3d __ (5th Cir. Oct. 7, 2020) No. 19-40526.
2d Circuit says release condition barring use of social media to promote violence violated First Amendment. (580) Defendant pleaded guilty to lying to FBI agents that he did not possess a firearm. Defendant’s offense grew out of his anti-Semitic, anti-Muslim, and racist postings on social media. At sentencing, as a condition of supervised release, the district court ordered him not to engage in any on-line conduct that promotes violence. The Second Circuit found this condition was reasonably related to the offense, but it could infringe defendant’s First Amendment rights. The court remanded to allow the district court to impose a condition that did not violate defendant’s First Amendment rights. U.S. v. Bolin, __ F.3d __ (2d Cir. Sept. 24, 2020) No. 19-2119.
2d Circuit upholds release condition limiting access to internet. (580) At defendant’s sentencing for lying to FBI agents, the district court imposed a supervised release condition that required defendant to participate in an internet-monitoring program and obtain permission from Probation before possessing any device that could access the internet. The Second Circuit upheld the condition as reasonably related to defendant’s offense which arose out of his anti-Semitic, anti-Muslim, and racist postings. U.S. v. Bolin, __ F.3d __ (11th Cir. Sept. 16, 2020) No. 18-11063.
2d Circuit reverses release condition that barred contact with brother. (580) At defendant’s sentencing for drug trafficking, the district court imposed a supervised release condition barring defendant from interacting with any person who had been engaged in criminal activity. Defendant argued that this condition would bar him from seeing his brother, who was a convicted felon. The Second Circuit remanded to the district court to allow the district court to provide further justification for this condition as applied to defendant’s immediate family. U.S. v. Bryant, __ F.3d __ (2d Cir. Sept. 24, 2020) No. 18-3569.
4th Circuit upholds lifetime supervised release for sex offender. (580) At defendant’s sentencing for enticing a five-year old boy to have sex, the district court imposed a lifetime term of supervised release. Under 18 U.S.C. § 3553(k), defendant was subject to a five-year term of supervised release, and § 5D1.2(b)(2) recommended that defendant be given a lifetime of supervised release. On appeal, defendant argued that the district court failed to explain why it imposed the lifetime term of supervised release. The Fourth Circuit found no error, ruling that the district court had adequately explained how the applicable factors justified the sentence and the lifetime term of supervised release. U.S. v. Arbaugh, __ F.3d __ (4th Cir. Feb. 20, 2020) No. 18-4575.
4th Circuit remands conditions of release relating to computers for greater explanation. (580) At defendant’s sentencing for traveling to a foreign country to have sex with a minor, the district court imposed four conditions of supervised release limiting defendant’s access to computers. Defendant argued that these conditions were improper because his offense did not involve computers. The Fourth Circuit agreed, and remanded the case to the district court for further explanation. U.S. v. Arbaugh, __ F.3d __ (4th Cir. Feb. 20, 2020) No. 18-4575.
6th Circuit says district court had no jurisdiction to consider motion challenging supervised release condition. (580) Defendant pleaded guilty to possession of child pornography. As a condition of supervised release under 18 U.S.C. § 3582(e)(2), the district court ordered him to have no contact with his spouse, who had lied to a probation officer during defendant’s prior supervised release. Later, while on supervised release, defendant filed a motion to modify or rescind this condition on the ground that it unduly burdened his religious practices. The Sixth Circuit held that the district court had no jurisdiction to hear defendant’s motion challenging the legality of the condition under § 3582(e)(2). U.S. v. Faber, __ F.3d __ (6th Cir. Feb. 18, 2020) No. 19-1300.
7th Circuit reverses condition allowing probation to decide if defendant could associate with felon. (580) At defendant’s sentencing for drug trafficking, as a condition of supervised release, the district court ordered defendant not to associate with any known felons without the permission of his Probation officer. The Seventh Circuit found that this release condition violated the Constitution’s non-delegation doctrine by giving the Probation officer the authority to determine whether defendant would associate with felons. Defendant also argued that regardless of the delegation issue, the condition interfered with his famial rights because his sons were convicted felons. The court expressed sympathy, but held this condition was too prospective for it to address, because defendant had not yet served his lengthy prison term and circumstances could change before his release. U.S. v. Lee, __ F.3d __ (7th Cir. Feb. 18, 2020) No. 19-1300.
7th Circuit says failure to challenge supervised release condition is waiver. (580)(855) Defendants pleaded guilty to drug trafficking. Prior to sentencing, they received presentence reports that detailed the supervised release conditions that would apply to them. Although defendants objected to some of the supervised release conditions, they did not object to a condition that barred their going to any place where alcohol would be served. The Seventh Circuit found it “unambiguous” that defendants had waived any right to challenge this supervised release condition. U.S. v. Anderson, __ F.3d __ (7th Cir. Jan. 30, 2020) No. 18-1870.
8th Circuit vacates alcohol supervised release condition. (580) Defendant was convicted of assault and other offenses. At sentencing, the district court imposed a supervised release condition that barred defendant from consuming alcohol or frequenting establishments that served alcohol. Because defendant’s offense did not involve alcohol and the district court did not explain the condition, the Eighth Circuit vacated it. U.S. v. Robertson, __ F.3d __ (8th Cir. Jan. 23, 2020) No. 18-3375.
8th Circuit says supervised release condition requiring notification of risk is not vague. (135)(580) Defendant was convicted of assault and other offenses. As a condition of supervised release, the district court ordered that if the Probation officer determines that defendant poses a risk to any person, the defendant must inform that person of that risk. The Eighth Circuit held that this condition was not unconstitutionally vague because the Probation officer would determine whether defendant had to notify anyone of the risk. U.S. v. Robertson, __ F.3d __ (8th Cir. Jan. 23, 2020) No. 18-3375.
7th Circuit finds defendant waived objection to supervised release conditions. (580)(855) Defendant pleaded guilty to passport fraud, and his presentence report recommended certain conditions of supervised release. In his own sentencing memorandum, defendant argued that those conditions of supervised release would adequately deter him, and therefore the court should give him a below-guidelines sentence. At sentencing, he objected to one of the special conditions of supervised release but agreed to the remainder of the conditions. On appeal, the Seventh Circuit held that defendant had waived his objection to the conditions of supervised release except the one to which he objected at sentencing. U.S. v. Dodds, __ F.3d __ (7th Cir. Jan. 13, 2020) No. 19-1135.
7th Circuit upholds search condition imposed for passport fraud. (580) At defendant’s sentencing for passport fraud, the district court imposed a special condition of supervised release allowing Probation to search upon reasonable suspicion that defendant had violated the terms of his supervised release. The district court explained that the condition would ensure that defendant was not misusing identity documents or engaging in financial wrongdoing. The Seventh Circuit held that the search condition was not overly intrusive and that the district court had reasonably justified it. U.S. v. Dodds, __ F.3d __ (7th Cir. Jan. 13, 2020) No. 19-1135.
7th Circuit affirms concurrent sentences on revocation of supervised release. (580)(800) Defendant pleaded guilty to two counts of drug trafficking and received two concurrent sentences. After his release, he violated supervised release and was sentenced to a single term, plus supervised release. When he again violated his supervised release, the court imposed concurrent sentences of 24 months and 17 months. For the first time on appeal, defendant argued that separate sentences were improper because the court had imposed only one sentence when his initial supervised release was revoked. The Seventh Circuit found no plain error, because any error would not have affected the length of defendant’s imprisonment. U.S. v. Allgire, __ F.3d __ (7th Cir. Dec. 26, 2019) No. 19-2348.
7th Circuit finds defendant waived objection to supervised release condition. (580)(855) Defendant was convicted of Hobbs Act robbery and other offenses. The presentence report outlined the supervised release conditions applicable to defendant, and at sentencing, the district court confirmed that defendant had an opportunity to review the PSR. Defendant did not object to the supervised release conditions. On appeal, defendant argued that one of the supervised release conditions was vague. The Seventh Circuit held that defendant had waived any challenge to the supervised release conditions. U.S. v. Fisher, __ F.3d __ (7th Cir. Nov. 25, 2019) No. 18-2765.
7th Circuit upholds conditions limiting access to minors despite no molestation history. (580) At defendant’s sentencing for failure to register as a sex offender, the district court imposed three supervised release conditions: (1) as required by Probation, defendant inform employers and others of his obligation to register as a sex offender; (2) a ban on spending any time with a minor without permission; and (3) a ban on working any job or participating in any volunteer activity in which he would have access to minors, without permission from Probation. The Seventh Circuit upheld these conditions even though defendant had never molested children, because defendant had lied to Probation about his interest in children. U.S. v. Edwards, __ F.3d __ (7th Cir. Dec. 6, 2019) No.18-3282.
4th Circuit says First Step Act applies during term of supervised release. (580) In 1997, defendant was sentenced for a crack cocaine offense. He completed his prison term and was placed on supervised release, but in 2019, he was incarcerated for violating supervised release. While in custody, he filed a motion under the First Step Act to reduce his sentence, arguing that any reduction should be applied to his current sentence for violating supervised release. The district court denied the motion on the ground that defendant was ineligible for First Step Act relief. The Fourth Circuit reversed, holding that the First Step Act gives the district court discretion to reduce the sentence of a defendant serving a term of imprisonment for a violation of supervised release. U.S. v. Venable, __ F.3d __ (4th Cir. Nov. 20, 2019) No. 19-6280.
9th Circuit rejects release conditions requiring work, support, and notifying third parties. (580) As conditions of defendant’s supervised release, the district court ordered defendant to support his dependents, work regularly, and notify third parties of risks that may be occasioned by his presence. Although these were standard conditions of supervised release when imposed, the Ninth Circuit in U.S. v. Evans, 883 F.3d 1154 (9th Cir. 2018), held that these conditions were unconstitutionally vague. The Ninth Circuit found that imposing these conditions was plain error and remanded for the district court to modify the conditions accordingly. U.S. v. Ped, __ F.3d __ (9th Cir. Nov. 15, 2019) No. 18-50179.
9th Circuit finds violation of the Travel Act involving minor requires sex offender registration. (290)(580) Defendant pleaded guilty to violating the Travel Act, 18 U.S.C. § 1952(a)(3)(A) based on an incident in which she transported a minor across state lines for purposes of prostitution. As a condition of supervised release, the district court ordered defendant to register as a sex offender under the Sex Offender Registration and Notification Act, 34 U.S.C. § 20911. The Ninth Circuit held that defendant’s violation of the Travel Act required her to register as a sex offender, even though the Travel Act does not require involvement of a minor and Department of Justice guidelines do not require registration for violating the Travel Act. U.S. v. Dailey¸ __ F.3d __ (9th Cir. Nov. 4, 2019) No. 18-10134.
9th Circuit says ordering sex offender registration “as required by Probation” was not improper delegation. (310)(580) As a condition of supervised release for violating the Travel Act by taking a minor across state lines for purposes of prostitution, the district court ordered defendant to register as a sex offender “as required by” Probation and state officials. Defendant argued that the district court had delegated its Article III authority by putting the decision whether she had to register in the hands of Probation and state authorities. The Ninth Circuit rejected this argument, finding that registration was required under federal statutes and the order merely gave Probation and state authorities discretion about how to implement the registration requirement. U.S. v. Dailey¸ __ F.3d __ (9th Cir. Nov. 4, 2019) No. 18-10134.
5th Circuit upholds supervised release condition allowing search. (580) Defendant pleaded guilty to possession of a firearm by a felon. As a condition of supervised release, the district court ordered defendant to submit to a search if there was reasonable suspicion that defendant had violated supervised release and the areas to be searched contained evidence of that violation. The Fifth Circuit upheld the condition, finding it was warranted by defendant’s criminal history and offense of conviction. U.S. v. Dean, __ F.3d __ (5th Cir. Oct. 10, 2019) No. 18-50509.
2d Circuit allows court to let probation decide when to begin mandatory curfew. (580) As a condition of supervised release at defendant’s sentencing, the district court ordered defendant to comply with a curfew on a date and under conditions determined by Probation. The Second Circuit held that the district court did not unlawfully delegate to Probation its judicial authority by allowing Probation to decide the days and precise timing of the mandatory curfew. U.S. v. Degroate, __ F.3d __ (2d Cir. Oct. 4, 2019) No. 18-2236.
7th Circuit remands to make supervised release condition more specific. (580) At defendant’s sentencing for a fraud offense, the district court ordered defendant to remain within the “jurisdiction” to allow Probation to communicate with him. The Seventh Circuit found this travel restriction was impermissibly vague and remanded to allow the district court to substitute “federal judicial district” for “jurisdiction.” U.S. v. Collins, __ F.3d __ (7th Cir. Sept. 30, 2019) No. 18-3011.
7th Circuit finds defendant waived challenge to supervised release conditions. (580)(855) Prior to defendant’s sentencing for a fraud offense, he received a presentence investigation report that detailed the supervised release conditions that the district court would impose. Defendant did not object to these conditions, and at sentencing defense counsel stated that defendant had no objection to the conditions. The district court then read the conditions to defendant, and defendant did not object. The Seventh Circuit held that defendant had waived any challenge to these conditions on appeal. U.S. v. Collins, __ F.3d __ (7th Cir. Sept. 30, 2019) No. 18-3011.
7th Circuit says challenge to supervised release conditions was waived by defendant. (580)(855) Defendant received a presentence report that set forth proposed supervised release conditions. He did not object. At sentencing, defense counsel told the court that defendant had no objection to the proposed conditions, and the court imposed them. The Seventh Circuit held that defendant had waived any challenge to his supervised release conditions. U.S. v. De La Torre, __ F.3d __ (7th Cir. Oct. 10, 2019) No. 18-2009.
8th Circuit affirms domestic violence and anger management conditions of release. (580) At defendant’s sentencing for possession of a firearm by a felon, the district court imposed as a condition of supervised release that defendant participate in anger management and domestic abuse treatment programs. The district court relied on defendant’s multiple arrests for domestic abuse, which occurred more than ten years before his sentencing. The Eleventh Circuit found that the conditions were within the district court’s discretion and were reasonably related to defendant’s conviction. U.S. v. Hollingshed, __ F.3d __ (11th Cir. Oct. 3, 2019) No. 17-2951.
10th Circuit reverses supervised release condition requiring mental health medications. (580) At defendant’s sentencing for drug trafficking, the district court imposed a condition of supervised release ordering defendant to take prescribed mental health medications as directed by mental health professionals. The district court did not make findings in support of that condition. The Tenth Circuit found that the district court erred by failing to make clear findings to support that condition. The court said it was “particularly critical” that the condition may affect defendant’s liberty interest, and it was “highly questionable” that the district court could make findings supporting the condition. U.S. v. Malone, __ F.3d __ (10th Cir. Sept. 11, 2019) No. 18-3213.
2d Circuit remands for more complete discussion of restitution order. (580) Defendant’s plea agreement to a fraud offense stated that he would forfeit the contents of his bank accounts (but did not include his retirement account) and would pay restitution to the victim of the fraud. The plea agreement further provided that the government had discretion to apply the forfeited amounts to defendant’s restitution obligation through a process called “restoration.” The district court later allowed the government to use defendant’s retirement account to satisfy the restitution obligation. The Second Circuit vacated and remanded the order permitting use of defendant’s retirement account because the district court’s order did not address whether defendant was misled by the government’s promises. U.S. v. Feldman, __ F.3d __ (2d Cir. Sept. 17, 2019) No. 17-2868.
7th Circuit remands supervised release condition for inadequate statement of reasons. (580) At defendant’s sentencing for violating his supervised release for putting a pipe bomb in his ex-girlfriend’s car, the district court ordered him not to contact five individuals. The district court did not explain this condition. Reviewing for plain error, the Seventh Circuit found that the condition probably did not affect defendant’s substantial rights because one of the people he was forbidden from contacting was his ex-girlfriend, defendant threatened to blow up the house where two of the individuals lived, and he used two other individuals to convey threats to his ex-girlfriend. Nevertheless, the court remanded to the district court for an explanation of this condition. U.S. v. Greco, __ F.3d __ (7th Cir. Sept. 12, 2019) No. 18-3496.
7th Circuit finds defendants waived “administrative” supervised release conditions. (580)(855) At defendants’ separate sentencings, the district courts imposed “administrative” supervised release conditions that are “applicable whenever supervision is imposed.” Those conditions included reporting to Probation, a prohibition on possessing firearms, a direction not to leave the district without permission, and a requirement regularly to communicate with Probation. Both defendants received their presentence reports prior to sentencing, and neither objected to the supervised release conditions. They also signed documents stating that they waived reading of the supervised release conditions. The Seventh Circuit held that defendants’ advance notice, meaningful opportunity to object, and written waiver constituted a waiver of their right to challenge the administrative supervised release conditions. U.S. v. Brown, __ F.3d __ (7th Cir. Aug. 7, 2019) No. 18-2644.
7th Circuit finds defendant waived right to challenge “no communication” condition of release. (580)(855) At defendant’s sentencing for drug-trafficking offense, the district court ordered as a supervised release condition that defendant not communicate with any person who was an “affiliate” of any gang. Defendant argued that the term “affiliate” was unconstitutionally vague. The Seventh Circuit found that defendant waived any right to challenge this condition because he had notice of it and an opportunity to object and his attorney told the court it was acceptable. U.S. v. Clark, __ F.3d __ (7th Cir. Aug. 15, 2019) No. 18-2604.
8th Circuit says prior drug use justified condition banning alcohol. (580) At sentencing, the district court imposed a special condition of supervised release that required defendant to abstain from the use of alcohol during substance abuse treatment. Defendant argued that because he had no history of alcohol abuse, this condition was invalid. The Eighth Circuit upheld the condition, finding that defendant had a long history of drug abuse that justified the special condition. U.S. v. Hataway, __ F.3d __ (8th Cir. Aug. 12, 2019) No. 18-1953.
8th Circuit upholds drug treatment condition after 20 years in prison. (580) Before his release from a 20-year sentence, defendant challenged a supervised release condition requiring him to undergo periodic drug testing and participate in substance abuse treatment. Defendant had a drug habit when he was sentenced but he argued that there was no evidence that he still had a drug problem. The Eighth Circuit upheld the condition, finding that the district court had not abused its discretion in imposing a drug treatment condition on a defendant who had a long history of drug abuse. U.S. v. Romig, __ F.3d __ (8th Cir. Aug. 13, 2019) No. 18-2685.
8th Circuit says condition barring contact with Hell’s Angels is valid after prison sentence. (580) In 2001, defendant was convicted of drug trafficking and sentenced to 240 months. As a condition of supervised release, the district court ordered defendant not to associate with any member of the Hell’s Angels. When defendant was going to be released from prison, he challenged the Hell’s Angels condition on the ground that it was unrelated to his offense and was unnecessary. The Eighth Circuit upheld the condition, noting that prior to his conviction, defendant was a “prospect” with the Hell’s Angels and committed felonies other than the offense of conviction with Hell’s Angels members. U.S. v. Romig, __ F.3d __ (8th Cir. Aug. 13, 2019) No. 18-2685.
10th Circuit reverses ban on using computers without Probation’s permission. (580) At defendant’s sentencing for possession of child pornography, the district court imposed a supervised release condition that barred defendant from any use of computers or internet access devices without the permission of Probation. The Tenth Circuit held that this condition placed a greater restriction on defendant’s liberty than necessary because it completely banned defendant’s use of the internet by failing to place any restraints on Probation’s ability to restrict his internet access. U.S. v. Blair, __ F.3d __ (10th Cir. Aug. 13, 2019) No. 18-1220.
2d Circuit remands supervised release condition barring contact with minors. (580) At defendant’s sentencing for receipt of child pornography, the district court imposed a special condition of supervised release that barred defendant from having direct contact with minors without prior permission from Probation. The Second Circuit held that because the district court did not provide an explanation of this condition and it was not obvious from the record why the condition was imposed, it had to remand to the district court for an explanation of this condition or a modification of defendant’s sentence. U.S. v. Bleau, __ F.3d __ (2d Cir. July 8, 2019) No. 18-1574.
8th Circuit finds no plain error in restricting computer use after conviction for filing false tax returns. (580) Defendant was convicted of filing false tax returns. As a condition of supervised release, the district court directed defendant not to have access to any computer or any online service without his probation officer’s permission and monitoring. For the first time on appeal, defendant argued that the condition was improper absent particularized findings to support it. Reviewing for plain error, the Eighth Circuit found the failure to make particularized findings was error, but it did not affect defendant’s substantial rights. The court noted that defendant had used a computer to file the returns. U.S. v. Osman, __ F.3d __ (8th Cir. July 11, 2019) No. 18-1502.
8th Circuit upholds bar on computer use for sexual predator. (580) Defendant was convicted of enticing a minor to have sexual relations. At sentencing, the district court imposed conditions of supervised release that barred defendant from using a computer or any online service without Probation’s permission and that allowed Probation to conduct unannounced searches of defendant’s cell phone. The Eighth Circuit upheld the conditions, finding that defendant had used a computer to locate his victim and exchange e-mails with the victim’s purported mother. U.S. v. Strubberg, __ F.3d __ (8th Cir. July 12, 2019) No. 17-2087.
8th Circuit finds limiting contact with minors was not plain error. (580) At defendant’s sentencing for enticing a minor to have sex, the district court barred defendant from (1) having any contact with minors, except in the presence of a responsible adult approved by the Probation Office, (2) residing within 1,000 feet of locations frequented by children, and (3) being in places where minors congregate. Reviewing for plain error, the Eighth Circuit found the conditions “troubling,” but found no plain error, stating that Probation and the district court could interpret these conditions in a way that did not overly impinge on defendant’s liberty. U.S. v. Strubberg, __ F.3d __ (8th Cir. July 12, 2019) No. 17-2087.
8th Circuit affirms condition requiring sex offender treatment after failure to register as sex offender. (580) At defendant’s sentencing for failing to register as a sex offender, the district court imposed a special condition of supervised release that required defendant to participate in a sex offender program if deemed necessary by a mental health professional. The Eighth Circuit found no abuse of discretion because defendant’s underlying convictions were for attempted sexual abuse of his minor daughter, so the condition was reasonably related to defendant’s history and characteristics. The court rejected the argument that a sex-offender treatment condition must be related to the offense of conviction. U.S. v. Puckett __ F.3d __ (8th Cir. July 15, 2019) No. 18-3191.
8th Circuit upholds limiting contact with minors where defendant abused his own daughter. (580) Defendant pleaded guilty to failing to register as a sex offender. At sentencing, the district court imposed a special condition of supervised release barring defendant from having unsupervised contact with a minor without Probation’s approval. Although this condition would affect defendant’s ability to see his own children, the Eighth Circuit upheld it, finding that defendant’s prior conviction for attempted abuse of his daughter justified the condition. U.S. v. Puckett __ F.3d __ (8th Cir. July 15, 2019) No. 18-3191.
5th Circuit vacates special supervised release conditions not mentioned in oral sentence. (580) Defendants’ supervised release conditions were listed in the presentence report, but the district court did not orally recite them at sentencing. Defendants argued that this meant the conditions were not part of the sentence. The Fifth Circuit reluctantly held that it was constrained to follow precedent and vacate the special conditions of supervised release. The panel noted, however, that for standard conditions of supervised release, written notification in the presentence report is sufficient. U.S. v. Diggles, __ F.3d __ (5th Cir. June 26, 2019) No. 18-40521.
7th Circuit upholds lifetime of supervised release for child pornography. (580) Defendant was convicted of possession of child pornography. The district court imposed a sentence of 132 months plus a lifetime term of supervised release. Defendant argued that the lifetime term of supervised release was substantively unreasonable. The Seventh Circuit found that the district court weighed the applicable factors and properly found that defendant’s risk of recidivism and need for treatment justified the lifetime term of supervised release. U.S. v. Lickers, __ F.3d __ (7th Cir. June 27, 2019) No. 18-2212.
7th Circuit finds defendant waived objection to supervised release condition. (580)(855) Defendant pleaded guilty to drug trafficking. The presentence report listed as a proposed supervised release condition that defendant maintain lawful employment. Defendant did not object to the condition. At sentencing, the district court asked defendant whether she objected to the presentence report on grounds other than she had already raised. Defendant said she did not and waived reading of the supervised release conditions. On appeal, defendant argued that the supervised release condition that she maintain employment was unconstitutionally vague. The Seventh Circuit found that she had waived any objection to this condition by intentional relinquishment of a known right. U.S. v. Flores, __ F.3d __ (7th Cir. July 3, 2019) No. 18-3249.
7th Circuit finds waiver of supervised release conditions. (580)(855) Defendant, a citizen of Poland, pleaded guilty to fraud. The presentence report stated that defendant was likely to be deported and that ordinarily supervised release should not be imposed on a defendant likely to be deported. Nevertheless, the PSR proposed conditions of supervised release, and the district court sentenced defendant to a term of supervised release. For the first time on appeal, defendant objected that no term of supervised release should be imposed because she was likely to be deported after she had served her term of incarceration. The Seventh Circuit found that defendant had waived any objection to supervised release. U.S. v. Gawron, __ F.3d __ (7th Cir. July 3, 2019) No. 18-2608.
5th Circuit reverses supervised release condition requiring mental health treatment. (580) Defendant, who was 57, pleaded guilty to drug trafficking in connection with his attempt to bring marijuana and cocaine into the U.S. The presentence report noted that as an 18 or 19-year-old, defendant had tried to commit suicide because he was in “an unhealthy relationship” with a woman. The PSR also reported that defendant had a history of alcohol and drug abuse, but had stopped using alcohol and illegal substances at least ten years earlier. At sentencing, the district court imposed a supervised release condition requiring mental health treatment because of defendant’s “substance problems.” The Fifth Circuit reversed, finding that there was no evidence that defendant had been diagnosed with a mental disorder and that a suicide attempt 40 years before defendant’s offense does not support a mental health condition of supervised release. U.S. v. Bree, __ F.3d __ (5th Cir. June 19, 2019) No. 18-40360.
7th Circuit finds defendant waived objection to supervised release conditions. (580)(855) Defendant was convicted of receiving child pornography. The court and the presentence report proposed several conditions of supervised release. Defendant objected to the conditions, and the district court overruled his objections. On appeal, he sought to raise different objections to the same supervised release conditions. The Seventh Circuit held defendant had waived these objections by failing to raise them in the district court. U.S. v. Tjader, __ F.3d __ (7th Cir. June 12, 2019) No. 18-2447.
10th Circuit vacates supervised release condition that was an improper delegation. (580) Defendant pleaded guilty to possession of a firearm by a felon. As a condition of supervised release, the district court ordered defendant to notify others if he posed a risk to them if ordered to do so by Probation. The Tenth Circuit held that this condition impermissibly delegated authority to Probation because it affected defendant’s liberty interest and gave Probation too much authority. U.S. v. Cabral, __ F.3d __ (10th Cir. June 10, 2019) No. 18-1263.
8th Circuit finds written judgment expanded oral supervised release condition. (580) At defendant’s sentencing for assaulting a postal service employee, the district court stated that as a condition of supervised release defendant must abstain from alcohol during mental health counseling sessions. The final written judgment stated that defendant must abstain from alcohol during “the period of supervision.” The Eighth Circuit held that the condition in the written judgment was broader than the condition stated orally in court and remanded to the district court for clarification. U.S. v. Gustus, __ F.3d __ (8th Cir. June 14, 2019) No. 18-2303.
8th Circuit says condition barring access to computers does not violate First Amendment. (120)(580) Defendant pleaded guilty to production of child pornography and commission of a felony offense while being required to register as a sex offender. The district court sentenced him to a lengthy period of incarceration to be followed by a period of supervised release. As a condition of supervised release, the district court directed that defendant “not possess or use a computer or have access to any online service without the prior approval” of Probation. Reviewing for plain error, the Eighth Circuit found that the supervised release condition did not violate the First Amendment because defendant had used a computer to commit his offenses. U.S. v. Perrin, __ F.3d __ (8th Cir. June 19, 2019) No. 18-1503.
10th Circuit finds vagueness challenge to supervised release condition not ripe for review. (120)(580) As a condition of supervised release for defendant’s conviction for possession of a firearm by a felon, the district court required defendant to notify others if he posed a risk to them if Probation required him to do so. The Tenth Circuit declined to consider defendant’s claim that the condition was void for vagueness in violation of the Due Process Clause because the condition may never be applied to defendant and factual development is necessary to consider defendant’s claim. U.S. v. Cabral, __ F.3d __ (10th Cir. June 10, 2019) No. 18-1263.
7th Circuit finds defendant waived right to challenge supervised release conditions. (580)(855) The district court sentenced defendant to imprisonment, followed by a term of supervised release. When the court imposed the supervised release conditions, defense counsel said he had reviewed the conditions with defendant and defendant had no objections to them. On appeal, defendant sought to challenge several conditions of supervised release. The Seventh Circuit found that defendant had waived his right to challenge the conditions by acknowledging that he had received notice of the conditions, by discussing them with counsel, and by telling the district court that he had no objections to them. U.S. v. St. Clair, __ F.3d __ (7th Cir. June 7, 2019) No. 18-1933.
8th Circuit upholds new term of supervised release after violation of supervised release. (580) A month after he began serving his term of supervised release for counterfeiting, defendant violated the conditions of his supervised release by possessing counterfeit cash and other crimes. Defendant’s guidelines range was seven to thirteen months with no supervised release after his term of imprisonment. However, during allocution defendant requested a term of supervised release. The district court sentenced him to 10 months in prison and 24 months of supervised release. The Eighth Circuit found that the district court did not abuse its discretion in imposing supervised release because of defendant’s previous noncompliance with supervised release and his statement at sentencing. U.S. v. Newson, __ F.3d __ (8th Cir. May 23, 2019) No. 18-1256.
5th Circuit says mandatory term of supervised release does not apply to new term after violation. (580)(800) Defendant pleaded guilty to drug-trafficking and was sentenced to a prison term and eight years of supervised release. After his release from prison, his supervised release was revoked. The presentence report said he was subject to a mandatory minimum term of supervised release of eight years for violating his prior supervised release, so the district court imposed a new prison term plus eight years supervised release. The Fifth Circuit held that the mandatory minimum term of supervised release applicable at the time of the original drug-trafficking conviction did not apply to the violation of his supervised release. Only the maximum term of release authorized by the statute for his original offense applied. The error was plain, and the sentence was vacated. U.S. v. Campos __ F.3d __ (5th Cir. Apr. 30, 2019) No. 18-50416.
5th Circuit finds no conflict between supervised release conditions and sentence. (580) At defendant’s sentencing for illegal reentry after deportation, the district court told defendant that he would be subject to a three-year term of supervised release because he had stayed in Mexico only for a month after his last deportation. In its sentencing judgment, the district court ordered defendant to surrender to federal authorities to be deported and that he must remain outside the U.S. unless legally authorized to enter. The Fifth Circuit found that these conditions did not conflict with the district court’s oral pronouncement of sentence and therefore did not need to be stricken from the judgment. U.S. v. Vasquez-Puente, __ F.3dd __ (5th Cir. May 1, 2019) No. 17-41099.
8th Circuit finds factors applicable to both prison term and supervised release. (580) Defendant pleaded guilty to receiving and distributing child pornography. The district court imposed a 20-year sentence, followed by a life term of supervised release. In imposing the prison term, the district court considered several of the factors set forth in 18 U.S.C. § 3553(a), but did not consider any applicable factors in imposing a life term of supervised release. The Eighth Circuit held that supervised release is part of the sentence and that the district court only needed to consider the § 3553(a) factors once. U.S. v. Carson, __ F.3d __ (8th Cir. May 10, 2019) No. 17-3589.
8th Circuit upholds supervised release condition barring access to the internet. (120)(580) After defendant pleaded guilty to receiving and distributing child pornography, the district court imposed a special condition of supervised release that barred him from maintaining or creating a user account on any social networking site that allows access to persons under the age of 18 or allows for the exchange of sexually explicit material. The Eighth Circuit upheld this condition against defendant’s First Amendment challenge, finding that supervised release is part of defendant’s sentence and that restrictions on post-custodial conduct are inapplicable. U.S. v. Carson, __ F.3d __ (8th Cir. May 10, 2019) No. 17-3589.
1st Circuit upholds supervised release condition requiring polygraph testing. (120)(580) At defendant’s sentencing for transporting child pornography, the district court imposed a condition of supervised release requiring defendant periodically to undergo polygraph testing. The condition stated that defendant’s supervised release could not be revoked based solely on his failure to pass a polygraph or failure to answer questions on Fifth Amendment grounds. The First Circuit upheld the condition, finding that it did not intrude on defendant’s Fifth Amendment rights and that any claim that the condition would violate his Fifth Amendment rights in the future if he were not given appropriate warnings was premature. U.S. v. Hood __ F.3d __ (1st Cir. Apr. 3, 2019) No. 18-1407.
5th Circuit upholds supervised release condition allowing search of electronic devices. (580) Defendant pleaded guilty to possession with intent to distribute more than five grams of crack. While on supervised release from that offense, defendant repeatedly tested positive for drugs. The district court revoked defendant’s supervised release and imposed a condition that allowed his probation officer to search his residence, vehicles, or any electronic devices he had upon a showing of reasonable suspicion. Defendant challenged the supervised release condition to the extent it allowed a search of his electronic devices. The Fifth Circuit found that the district court had not abused its discretion in imposing the supervised release condition because electronics could facilitate drug use. U.S. v. Hathorn, __ F.3d __ (5th Cir. Apr. 11, 2019) No. 18-60380.
3rd Circuit holds supervised release term was tolled while defendant was a fugitive. (580)(800) Defendant challenged his revocation of supervised release, contending that the court’s jurisdiction had terminated at the end of his three-year supervised release term. The Third Circuit joined the majority of circuits in holding that defendant’s supervised release term was tolled while he was a fugitive from the court’s supervision. As a result of that tolling, defendant’s term of supervised release had not yet expired when the warrant was issued. The supervised release statute is silent on this issue. See 18 U.S.C. §§ 3583, 3624. However, fugitive tolling furthers the purposes of the supervised release scheme. A defendant cannot count toward his sentence time spent out of the court’s supervision as a consequence of his own doing. Similarly, a defendant’s absence should not free him to violate the terms of his supervised release without consequence; he should remain responsible for his conduct. Judge Rendell dissented. U.S. v. Island, __ F.3d __ (5th Cir. Feb. 26, 2019) No. 17-3826.
5th Circuit says standard “visitation” condition of release was not plain error. (580) The district court imposed a “standard” condition of supervised release that required defendant to “permit a probation officer to visit [him] at any time at home or elsewhere and … to permit confiscation of any contraband observed in plain view by the probation officer.” Defendant argued for the first time on appeal that this standard visitation condition was substantively unreasonable and at least required the district court to explain the reasons for its imposition. The Fifth Circuit noted that it had not previously addressed the constitutionality or substantive reasonableness of the challenged standard condition or whether a court must explain its reasons for imposing a standard condition of supervised release. Courts ordinarily do not find plain error when it has not previously addressed an issue. Accordingly, the panel found no plain error here and upheld the condition. U.S. v. Cabello, __ F.3d __ (5th Cir. Feb. 22, 2019) No. 18-10001.
5th Circuit says motion to relocate supervised release was premature and not appealable. (580)(850) While still incarcerated, defendant sought to relocate the place where he would serve his supervised release under 18 U.S.C. § 3605. The district court found the motion premature because defendant was still incarcerated. The Fifth Circuit found that it lacked jurisdiction because the district court had not entered a final order determining defendant’s request to transfer jurisdiction. U.S. v. Pittman, __ F.3d __ (5th Cir. Feb. 14, 2019) No. 18-10465.
8th Circuit vacates alcohol ban and curfew in supervised release conditions. (580) At defendant’s sentencing, the district court imposed special supervised conditions that banned any alcohol use and imposed a 10 p.m. curfew on defendant. The Eighth Circuit found that the district court imposed the two supervised release conditions without any individualized inquiry and with no evidence that defendant had a problem in either area. The court vacated both conditions. U.S. v. Bell, __ F.3d __ (8th Cir. Feb. 12, 2019) No. 16-3588.
8th Circuit upholds supervised release conditions requiring polygraph and limiting internet access. (580) At defendant’s sentencing for possessing child pornography, the district court imposed conditions of supervised release that required defendant to undergo periodic polygraph testing and restricted defendant’s access to internet devices without the prior approval of his probation officer. The Eighth Circuit upheld the polygraph condition because defendant had demonstrated a pattern of untruthfulness. The court upheld the access to the internet condition because defendant had used a computer to commit his offense and had shared images of a sadistic nature. U.S. v. Newall, __ F.3d __ (8th Cir. Feb. 12, 2019) No. 18-2066.
2d Circuit strikes down child porn supervised release condition requiring notification of risk. (580) Defendant was convicted of possession of child pornography. As a condition of supervised release, the district court ordered defendant to notify another person if the probation office found that defendant posed a risk to that person. The Second Circuit held that this condition was vague and afforded too much discretion to defendant’s probation officer. U.S. v. Boles, __ F.3d __ (2d Cir. Jan. 25, 2019) No. 17-1138.
2d Circuit upholds supervised release condition requiring sex offender to undergo polygraph. (580) As a condition of supervised release for possession of child pornography, the district court ordered defendant to participate in a program of sex offender evaluation and treatment, including a polygraph examination. The Second Circuit upheld the condition, rejecting defendant’s contention that requiring him to take a polygraph examination violated his Fifth Amendment rights, noting that he retained the right to challenge any resulting incrimination in court. U.S. v. Boles, __ F.3d __ (2d Cir. Jan. 25, 2019) No. 17-1138.
8th Circuit upholds supervised release for deportable alien. (580) Defendant, an illegal immigrant, pleaded guilty to unlawful use of identification documents, in violation of 18 U.S.C. § 1546(a). The district court sentenced him to a term of imprisonment and a three-year period of supervised release. Defendant argued that this was improper because § 5D1.1(c) says a court ordinarily should not impose a term of supervised release on a deportable alien. The Eighth Circuit upheld the supervised release term, finding that district courts retain discretion to impose supervised release on deportable aliens if the court finds that supervised release would provide an added level of deterrence and protection. Here, the government asked for a term of supervised release to deter defendant from illegally reentering the U.S. U.S. v. Hernadez-Loera, __ F.3d __ (8th Cir. Jan. 30, 2019) No. 17-3793.
2d Circuit strikes down ban on internet access and adult pornography as conditions of release. (580) In 2004, defendant violated state law by having a sexual relationship with two 13-year-old girls. In 2012, he failed to register as a sex offender and was convicted under 18 U.S.C. § 2250. He repeatedly violated the terms of his supervised release on the federal offense. In connection with one violation, defendant asked the district court not to reimpose a ban on possession and use of internet devices and a ban on possessing or viewing adult pornography. The district court reimposed the two conditions because defendant had used an internet-connected device to view adult pornography and to find adult sexual partners. The Second Circuit found that defendant had a First Amendment right to access the internet and that neither condition was reasonably related to the objectives of sentencing. U.S. v, Eaglin, __ F.3d __ (2d Cir. Jan. 11, 2019) No. 17-1224.
4th Circuit vacates lifetime supervised release term. (580) Defendant was found guilty of receiving and possessing child pornography. The district court imposed a lifetime supervised release term subject to a number of special conditions, including a ban on accessing the internet without the probation officer’s approval and a ban on possessing any pornographic materials. The Fourth Circuit found that the district court had not justified a lifetime period of supervised release subject to special conditions. For that reason, it found the imposition of supervised release procedurally unreasonable. U.S. v. Ross, __ F.3d __ (4th Cir. Jan. 14, 2019) No. 17-4242.
9th Circuit strikes phrase barring “normal familial relations” from supervised release condition. (580) Defendant and his son were found guilty of offenses arising from a scheme to defraud the government. As a special condition of supervised release, the district court ordered defendant to have contact with his son “only for normal familial relations.” The district court banned any contact relating to “financial or investment matters.” The Ninth Circuit found the phrase “only for normal familial relations” unconstitutionally vague and held that it may encroach on constitutionally protected areas. The court struck the offending phrase from the condition. U.S. v. Hall, __ F.3d __ (9th Cir. Jan. 11, 2019) No. 17-10422.
2d Circuit upholds supervised release conditions that require probation office’s approval. (580) Defendant pleaded guilty to drug trafficking. At the sentencing hearing, as conditions of supervised release, the district court ordered defendant to participate in substance abuse and mental health evaluation. The written judgment stated that defendant was to participate in substance abuse and mental health evaluation as approved by the probation office. The Second Circuit held that taken together the court’s oral and written judgments made evaluation mandatory and did not delegate to probation the decision whether defendant should participate in treatment. U.S. v. Young, __ F.3d __ (2d Cir. Dec. 12, 2018) No. 16-3458.
7th Circuit says requiring probation officer’s permission to leave district is not vague. (580) As a condition of supervised release, defendant was ordered not to leave the “judicial district” without the permission of the court or probation officer. Defendant claimed that this condition was vague, but the Seventh Circuit upheld it. The court found that “judicial district” was defined in both the applicable statute and the presentence report. U.S. v. Johnson, __ F.3d __ (7th Cir. Dec. 21, 2018) No. 18-1313.
7th Circuit amends judgment to include supervised release conditions without resentencing. (580) The district court’s written judgment contained a supervised release provision that barred the “excessive” use of alcohol. The Seventh Circuit has previously held that the use of the term “excessive” is “impermissibly vague.” Another supervised release provision differed from the district court’s oral pronouncement of sentence in that it barred defendant from traveling to a neighboring jurisdiction. Rather than ordering a resentencing, the Seventh Circuit ordered the judgment amended to limit defendant’s alcohol use to any use that resulted in a blood alcohol content of more than 0.08 percent and to conform to the district court’s oral pronouncement of sentence. U.S. v. Hudson, __ F.3d __ (7th Cir. Nov. 14, 2018) No. 18-1130.
S.Ct. to decide validity of mandatory minimum for possessing child porn on supervised release. (310) (580) After completing his prison time for possessing child pornography, defendant was placed on supervised release. The district court found that he violated supervised release by again possessing child pornography. This finding triggered a new mandatory minimum five-year prison sentence under 18 U.S.C. § 3583(k). On appeal, in U.S. v. Haymond, 869 F.3d 1153 (10th Cir. 2017), the Tenth Circuit held that subsection (k) is unconstitutional because it strips the sentencing judge of discretion to impose punishment within the statutorily prescribed range, and it imposes heightened punishment based on new conduct that has not been found by a jury beyond a reasonable doubt. On October 26, 2018, the Supreme Court granted certiorari to review the Tenth Circuit’s ruling. U.S. v. Haymond, __ U.S. __, 139 S.Ct. __ (Oct. 26, 2018).
7th Circuit upholds requiring bank robber to submit to 104 drug tests per year. (580) Defendant pleaded guilty to bank robbery. As a condition of supervised release, the district court ordered defendant to submit to mandatory drug testing when he was released from prison and to submit to up to 104 drug tests per year at the discretion of his probation officer. On appeal, defendant did not dispute the drug testing requirement, but argued that the sentence could result in 208 drug tests per year. The Seventh Circuit rejected the argument, ruling that the sentence limited the maximum number of drug tests to 104 per year. U.S. v. Downey, __ F.3d __ (7th Cir. Nov. 2, 2018) No. 17-3286.
7th Circuit affirms condition allowing visits by probation officer at “reasonable” locations. (580) As a condition of supervised release at defendant’s sentencing for bank robbery, the district court directed defendant to allow the probation officer to visit him at any “reasonable” location specified by the probation officer. The Seventh Circuit upheld this condition, finding that the insertion of the word “reasonable” prevented the probation officer from choosing an inappropriate location. The court rejected defendant’s argument that the district court was required to specify a location where defendant could meet his probation officer. U.S. v. Downey, __ F.3d __ (7th Cir. Nov. 2, 2018) No. 17-3286.
5th Circuit says defendant cannot be ordered to pay restitution while in custody. (580)(610) At defendant’s sentencing for tax offenses, the district court imposed a sentence of imprisonment and ordered defendant to begin paying restitution “immediately.” The Fifth Circuit held that a requirement that defendant began paying restitution while incarcerated was “unauthorized.” The court of appeals therefore modified defendant’s judgment to reflect that defendant does not owe restitution until his term of supervised release begins. U.S. v. Bolton, __ F.3d __ (5th Cir. Oct. 23, 2018) No. 17-60502.
7th Circuit finds defendant waived right to object to supervised release condition. (580)(855) Defendant pleaded guilty to filing false tax returns. At sentencing, the district proposed a condition of supervised release that allowed visits from defendant’s probation officer at a reasonable time. After reviewing this condition, defense counsel told the district court that he believed it was “reasonable.” The Seventh Circuit held that defendant had waived his right to object to that condition by agreeing that its imposition was reasonable. U.S. v. Smith, __ F.3d __ (7th Cir. Oct. 16, 2018) No. 16-3575.
7th Circuit reads limitation into supervised release condition barring excessive alcohol use. (580) At defendant’s sentencing for filing fraudulent tax returns, the district court imposed as a condition of supervised release that defendant not engage in “excessive use” of alcohol. Defendant claimed this condition was too vague. The Seventh Circuit held that it prohibited only excessive use that violated state law prohibiting a blood alcohol content of more than 0.08%. In interpreting the condition in this manner, the court of appeals conformed the condition to the recommendation of the presentence report, which had expressly stated the limitation. U.S. v. Smith, __ F.3d __ (7th Cir. Oct. 16, 2018) No. 163575.
7th Circuit holds that reasons for incarceration also support supervised release. (580) At defendant’s sentencing for drug trafficking, the district court imposed a 71-month sentence, followed by a five-year term of supervised release. On appeal, defendant argued that the district court had not adequately justified the supervised release term. The Seventh Circuit noted that the district court had only provided a one-sentence justification for defendant’s supervised release term, but held that the court’s reasons for its sentence of incarceration also applied to its imposition of a supervised release term. U.S. v. Clark, __ F.3d __ (7th Cir. Oct. 18, 2018) No. 18-1803.
5th Circuit upholds sentence for violating supervised release even though original sentence was no longer proper. (540)(580) Defendant pleaded guilty to possession of a firearm by a person convicted of a felony, in violation of 18 U.S.C. § 922(g), and received a 15-year sentence under the Armed Career Criminal Act, 18 U.S.C. §924(e). He did not challenge that sentence on appeal, and after completing his prison time, he was placed on supervised release. Thereafter, he violated the conditions of release, and the district court sentenced him to five years in custody. For the first time on appeal, defendant argued that his original ACCA sentence was invalid because, after the Supreme Court’s decision in Johnson v. U.S., 135 S.Ct. 2551 (2015), his prior convictions were no longer “violent felonies.” Thus, his original sentence should have been lower, and he should not have been on supervised release at the time that he violated the conditions of release. Reviewing for plain error, the Fifth Circuit found none, and upheld the supervised release sentence. U.S. v. Fuentes, __ F.3d __ (5th Cir. Oct. 11, 2018) No. 17-50407.
3rd Circuit finds supervised release conditions imposed on child molester to be insufficiently tailored. (580) Defendant was convicted of using the internet to try to entice a minor to have sex. As a condition of supervised release, the district court banned him from possessing or using computers or other electronic communication devices and banned use of the internet without his probation officer’s approval. The Third Circuit held that these conditions were not sufficiently tailored to defendant’s offense and ordered the district court to conduct a new revocation hearing at which it should consider the restriction’s length, its coverage, and the defendant’s underlying conduct. The court also found that the condition barring defendant from possessing computers was inconsistent with the condition barring access to the internet without his probation officer’s permission. U.S. v. Holena, __ F.3d __ (3d Cir. Oct. 10, 2018) No. 17-3537.
1st Circuit upholds lifetime supervised release for child porn defendant with history of abusing young boys. (580) Defendant pled guilty to possession of child pornography. His criminal history included a juvenile adjudication and adult criminal conviction for abuse of, or misconduct with, boys as young as eight years old. The district court imposed a lifetime term of supervised release, reasoning that defendant posed a “danger to young boys.” On appeal, the First Circuit affirmed. The court noted defendant’s “awful lot of close encounters” with minors and his history of “represent[ing] a danger to young boys.” The Sentencing Commission recommends a maximum term of supervised release for sex offenses like possession of child pornography, and the sentence was reasonable given the seriousness of defendant’s offense and the likelihood he would offend again. U.S. v. Harrison, __ F.3d __ (1st Cir. Aug. 10, 2018) No. 17-2088.
7th Circuit says explanation for prison sentence adequately justified lifetime supervised release. (580) Defendant was arrested at the airport on his way to Syria to join Jabhat al-Nusrah, a militant terrorist group associated with al-Qaida. He pleaded guilty to knowingly attempting to provide material support to a foreign terrorist organization. The district court sentenced him to the statutory maximum of 15 years in prison and a lifetime of supervised release. Defendant argued on appeal that the district judge did not sufficiently justify the lifetime term of supervised release. The Seventh Circuit found that, without any particular emphasis by defense on the supervised release term, the judge was not obligated to explain it at length. A district judge is not required to rehash the relevant factors after he has just discussed them as they relate to an appropriate imprisonment term. U.S. v. Tounisi, __ F.3d __ (7th Cir. Aug. 21, 2018) No. 17-3325.
8th Circuit upholds barring defendant from places where “pornography” and “erotica” could be viewed. (580) Defendant pled guilty to receiving child pornography. He challenged a special condition of supervised release requiring him not to “view, possess, produce, or use any form of erotica or pornographic materials, and the defendant must not enter any establishment where pornography or erotica can be obtained or viewed.” Defendant argued that the term “erotica” was unconstitutionally vague and overbroad. The Eighth Circuit disagreed, noting that U.S. v. Mefford, 711 F.3d 923, 928 (8th Cir. 2013) upheld a condition with the same key terms. The panel found that it was bound by Mefford, and held that the terms “pornography” and “erotica” were not vague. U.S. v. Sebert, __ F.3d __ (8th Cir. Aug. 13, 2018) No. 17-2771.
5th Circuit upholds restricting child porn defendant’s internet and computer access. (580) Defendant pled guilty to possessing child pornography. He challenged for the first time on appeal a special condition of supervised release that restricted his internet and computer access, contending that it burdened his First Amendment rights and citing the Supreme Court’s recent decision in Packingham v. North Carolina, __ U.S. __, 137 S.Ct. 1730 (2017). The Fifth Circuit found no plain error. Packingham struck down a North Carolina statute that prohibited registered sex offenders from accessing commercial social-networking sites, even after their sentences were completed. Because supervised release was part of defendant’s sentence (rather than a post-sentence penalty), and because the panel’s review was for plain error, Packingham did not apply to the supervised-release context. The condition also did not violate defendant’s right to be sentenced an Article III judge. Although the condition allowed the probation officer to grant approval to access the internet, that arrangement was a permissible delegation of implementing the judge’s sentence. U.S. v. Halverson, __ F.3d __ (5th Cir. July 30, 2018) No. 17-40661.
8th Circuit upholds conditions barring possession of porn and operating equipment to view porn. (580) Defendant pleaded guilty to sexual exploitation of a child and possession of child pornography. As conditions of supervised release, the district court prohibited defendant from possessing pornography and erotica, and prohibited defendant from operating or using photographic equipment, a computer, or any electronic storage device to view or produce pornography or erotica. The Eighth Circuit upheld both conditions, rejecting defendant’s claim that they were unconstitutionally overbroad. This court has held that when a defendant is convicted of an offense related to child porn, a ban on the possession of porn is “appropriately tailored to serve [the] dual purposes of promoting [the defendant’s] rehabilitation and protecting children from exploitation.” As a result, courts have “consistently rejected overbreadth arguments where the special condition at issue precluded the defendant from possessing pornography or sexually explicit material.” U.S. v. Bordman, __ F.3d __ (8th Cir. July 17, 2018) No. 17-2395.
1st Circuit upholds restriction on internet access as condition of supervised release. (580) Defendant pled guilty to producing and possessing child pornography. As a condition of supervised release, the district court directed that defendant “not possess or use … any … device with internet accessing capability at any time or place without prior approval from the probation officer.” The First Circuit upheld the condition, rejecting defendant’s argument that it was a “total ban” on his use of the interest. Defendant was permitted to use the internet and possess internet-capable electronic devices, subject to approval from his probation officer and electronic monitoring. Previous cases have upheld broad restrictions on internet access as a condition of supervised release “where (1) the defendant used the internet in the underlying offense; (2) the defendant had a history of improperly using the internet to engage in illegal conduct; or (3) particular and identifiable characteristics of the defendant suggested that such a restriction was warranted.” The first two factors were plainly present here; the underlying offense involved extensive downloading of child pornography and this behavior lasted for at least a year. Meeting a single factor justified a restriction on internet access. U.S. v. Aquino-Florenciani, 894 F.3d 4 (1st Cir. 2018).
7th Circuit says rationale for below-guideline sentence explained duration of supervised release. (580) Defendant pled guilty to defrauding investors. His guideline range was 41-51 months, but the district court imposed a sentence of 24 months, followed by two years of supervised release. Defendant challenged the duration and conditions of supervised release. The Seventh Circuit ruled that the judge’s statement that the 24-month below-guideline prison sentence, when combined with 24-month term of supervised release, was “just enough”, was sufficient explanation for the duration of the term of release. The combined prison and supervised release term only added up to the middle of the advisory guideline range for prison alone. The judge’s overarching rationale for the below-guideline prison sentence explained that duration sufficiently. U.S. v. Moose, 893 F.3d 951 (7th Cir. June 27, 2018) No. 16-3536.
7th Circuit reverses for failure to adequately explain supervised release conditions. (580)(765) At sentencing, defendant challenged a supervised release condition containing a drug testing requirement, and another permitting a probation officer to visit him at work. To each of these objections, the district judge replied: “The objection is over-ruled.” The Seventh Circuit reversed, holding that rejecting defendant’s “specific, rational objections” required further explanation. Defendant had no history of drug abuse. Drug testing was a mandatory condition, but the condition “may be ameliorated or suspended” in certain cases. 18 U.S.C. § 3583(d). Therefore, the court needed to respond to the objection so that a reviewing court could understand its reasons. Defendant’s main objection to the visitation condition was that it was overly broad and might cause him to lose his job if the officer visited him at work. Again, this concern was fairly stated, though its conclusion was debatable. Nevertheless, the lack of explanation was not harmless. Defendant’s concern about his job security after release from prison was a legitimate concern. U.S. v. Moose, 893 F.3d 951 (7th Cir. June 27, 2018) No. 16-3536.
8th Circuit upholds modifying supervised release to prohibit use of medical marijuana. (580) The mandatory terms of defendant’s supervised release required him to “not commit another federal, state or local crime,” to not to unlawfully possess or use a controlled substance. Standard Condition 7 stated that defendant “shall not purchase, possess, use, distribute, or administer any controlled substance … except as prescribed by a physician.” Special Condition (f) stated he “shall take any prescribed medications as directed by his medical provider.” In 2014, the state of Minnesota began allowing physicians to prescribe medical marijuana. At a revocation hearing, defendant admitted using marijuana, but argued that he was following the orders of his physician, To clarify any confusion, the district court modified the terms of defendant’s supervised release to bar him from using, or possessing marijuana, or obtaining a medical marijuana card or prescription. The Eighth Circuit affirmed. Minnesota law conflicted with federal law. Where there is a conflict between federal and state law with respect to marijuana, “federal law shall prevail.” Thus, the district court had no discretion to allow defendant to use medical marijuana while on supervised release. The U.S. v. Schostag, __ F.3d __ (8th Cir. July 13, 2018) No. 17-2530.
8th Circuit reverses ban on gang association as unconstitutionally vague. (580) As a condition of supervised release, the district court banned defendant from “knowingly associat[ing] with any member, prospect, or associate member of any gang without the prior approval of the United States Probation Office. If the defendant is found to be in the company of such individuals while wearing the clothing, colors, or insignia of a gang, the Court will presume that this association was for the purpose of participating in gang activities.” The Eighth Circuit agreed with defendant that the special condition was unconstitutionally vague for three reasons. First, the term gang was undefined, so that it gave no notice as to which groups of people were covered. Second, the term “associate member” lacked specific meaning. Third, any sort of mens rea requirement that was imposed by the first sentence of the condition vanished if defendant was found in the “company” of gang members while wearing “clothing, colors, or insignia” of a gang. In that case, “the Court will presume that this association was for purpose of participating in gang activities.” This presumption ran against the Supreme Court’s admonition in Arciniega v. Freeman, 404 U.S. 4 (1971) that “association” should not be read to include “incidental contacts.” U.S. v. Washington, 893 F.3d 1076 (8th Cir. 2018).
10th Circuit affirms even though supervised release is not required for deportable alien. (580) This was defendant’s fifth conviction for illegally reentering after deportation. He argued for the first time on appeal that the district court committed procedural error by imposing a term of supervised release without considering § 5D1.1(c), which advises that a court “ordinarily should not impose a term of supervised release in a case in which supervised release is not required … and the defendant is a deportable alien ….” The Tenth Circuit held that while the district court committed error, defendant failed to satisfy the third prong of the plain error test, i.e., that there was a “reasonable probability” that the error altered the results of the proceedings. Throughout the proceedings, the district court repeatedly expressed concerns about defendant’s history of illegal reentry offenses, as well as the need to deter him so that he did not illegally reenter the United States a sixth time. Defendant did not show a reasonable probability that upon remand, the district court would decline to reimpose the same term of supervised release. U.S. v. Chavez-Morales, __ F.3d __ (10th Cir. July 3, 2018) No. 17-2124.
10th Circuit upholds requiring defendant to notify third parties of risks he might pose to them. (580) Defendant was convicted of bank robbery. He challenged on appeal a condition of supervised release that required him to notify third parties of risks he might pose to them. The Tenth Circuit upheld the condition, rejecting defendant’s arguments that it was unconstitutionally vague, impermissibly delegated a judicial function to the probation officer, or was an unlawful occupational restriction. The condition was not unconstitutionally vague, and did not delegate a judicial function. It was applicable only to risks relating to defendant’s history of bank robberies and home invasions. Finally, it was not an occupational restriction; it did not prohibit defendant from engaging in any particular profession and it did not categorically require him to notify employers of his convictions. U.S. v. Hull, 893 F.3d 1221 (10th Cir. 2018).
1st Circuit reverses condition barring contact with minor children, despite appeal waiver. (580)(850) Defendant pled guilty to child pornography charges pursuant to a plea agreement that waived the right to appeal any sentence consistent with the parties’ recommendation. Despite the waiver, defendant appealed, challenging his sentence and several supervised release conditions. The First Circuit enforced the waiver except for a condition of supervised release ordering him not to “reside, be in the company, date or socialize by himself with a child or children below the age of 18 unless previously approved by the Probation Officer …” This condition made no exception for defendant’s own children, who would still be minors when he completed his 108-month sentence. The court provided no justification for a condition that burdened defendant’s “fundamental constitutional liberty interest” in his relationship with his children. U.S. v. Cabrera-Rivera, __ F.3d __ (1st Cir. June 20, 2018) No. 15-1337.
10th Circuit upholds gang ban barring defendant from associating with his foster brothers. (580) The district court imposed a special condition of supervised release that banned defendant from associating with any gang members. Defendant challenged the inclusion of two of his foster brothers. The Tenth Circuit upheld the ban. Even assuming the possibility of a right to familial association between foster siblings, defendant provided no evidence of a close familial relationship between himself and the two foster brothers. The special condition was substantively reasonable. Defendant’s history showed extensive involvement with a gang, which was ongoing when defendant met his two foster brothers, who were also members of a gang. Even if there was no evidence that he and his foster brothers were in the same gang, the court could reasonably try to reduce the potential for future crimes by separating defendant from any other gang members. U.S. v. Pacheco-Donelson, __ F.3d __ (10th Cir. June 22, 2018) No. 17-1180.
9th Circuit upholds supervised release condition requiring sex offense assessment. (580) Defendant pleaded guilty to failure to register as a sex offender, in violation of 18 U.S.C. § 2250(a). As a condition of supervised release, the district court ordered defendant to participate in a sex-offense-specific assessment and polygraph testing if recommended by the probation officers. The Ninth Circuit upheld this condition, finding that the supervised release condition was not burdensome and was reasonably necessary to accomplish the goals of supervised release. U.S. v. Hohag, __ F.3d __ (9th Cir. June 28, 2018) No. 17-30049.
1st Circuit upholds drug testing condition of supervised release. (580) Defendant pled guilty to firearms charges. He argued for the first time on appeal that the district court erred in subjected him to a drug testing requirement as a condition of supervised release. The First Circuit held that defendant forfeited his claim by failing to raise it below, and any error was not plain. Defendant did not object to the condition and so the district court had no occasion to discuss it, but the court’s reasoning was easily discerned. As a convicted drug dealer, defendant had ample access to drugs, and he declined to give a urine sample when arrested in this case. Further, because the new offense occurred while defendant was on supervised release for his prior drug offense, the district court clearly considered the “history and characteristics of the defendant,” 18 U.S.C. § 3553(a)(1), in requiring random drug screens. U.S. v. Laureano-Pérez, __ F.3d __ (1st Cir. June 8, 2018) No. 16-2399.
6th Circuit upholds requiring psychosexual evaluation, sex offender mental health treatment, and polygraph testing. (580) Defendant pled guilty to failing to register as a sex offender as required by the Sex Offender Registration and Notification Act (SORNA). He challenged on appeal three special conditions of supervised release: that he undergo a psychosexual evaluation, participate in sex offender mental health treatment, and submit to polygraph testing. The Sixth Circuit affirmed, finding that the special sex offender conditions were “reasonably related” to his failure to comply with SORNA. The conditions were also related to defendant’s “history and characteristics.” Defendant sporadically attended sex offender treatment before absconding to Texas after “meeting some girls.” Considering defendant’s previous failure to comply with mandated sex offender treatment, re-imposing those conditions was reasonable. U.S. v. Barcus, __ F.3d __ (6th Cir. June 8, 2018) No. 17-5646.
1st Circuit remands for inadequate explanation of lengthy term of supervised release. (580)(741) Defendant was convicted of violating the Sex Offender Registration and Notification Act (SORNA). A federal statute, 18 U.S.C. § 3583(k), required a supervised release term of between five years and life, and guideline section 5D1.2(c) recommended five years. Nevertheless, the district court sentenced defendant to 24 months in prison and 15 years of supervised release. Defendant argued that the court failed to explain its reasons for the lengthy term. The First Circuit agreed and remanded. In general, a judge is expected to explain why the defendant or the circumstances of the offense differ significantly from the typical or average at which the guideline is aimed. U.S. v. Lawson, __ F.3d __ (1st Cir. June 4, 2018) No. 16-2263.
7th Circuit holds adoption of PSR sufficiently supported term of supervised release. (580) Defendant pled guilty to financial institution fraud and bankruptcy fraud. His sentence included five years of supervised release. Defendant argued on appeal that the district court erred in failing to provide any justification for the eleven discretionary supervised release conditions. He alleged that the court merely read the discretionary conditions into the record, and failed to link the conditions as a whole to the § 3553(a) factors or provide findings. The Seventh Circuit held that the district court’s adoption of the PSR and its reasoning sufficiently supported the terms of supervised release. The PSR recommended the conditions that the court imposed, and included a statement of reasons identifying the § 3553(a) factors that supported the conditions. Defendant did not object to the PSR. U.S. v. Peterson, __ F.3d __ (7th Cir. May 29, 2018) No. 17-2062.
9th Circuit dismisses appeal of supervised release violation as moot after release from custody. (580) (850) Based on its finding that defendant had committed statutory rape while on supervised release, the district court sentenced him to 24 months in custody, with no further term of supervised release. Defendant appealed, but served his sentence and was unconditionally released before oral argument. The Ninth Circuit dismissed the appeal as moot. The panel rejected defendant’s claim that he faced collateral consequences from the district court’s finding that he committed statutory rape, even though defendant argued that this may in the future require him to register as a sex offender. U.S. v. King, __ F.3d __ (9th Cir. June 4, 2018) No. 17-10006.
10th Circuit affirms sex offender treatment condition of supervised release as not plain error. (580) Defendant was convicted of charges stemming from his straw purchase of two firearms for a felon working as a confidential informant. He argued for the first time on appeal that the district court erred by imposing sex-offender treatment as a special condition of his supervised release. The Tenth Circuit held that defendant could not meet the plain error test. The court’s failure to provide a statement to justify sex offender treatment met the first and second prongs of the plain error test. However, the error did not affect defendant’s substantial rights because defendant had been convicted of a sex offense in 2011, and during the investigation of that crime someone accused him of having intimate sexual contact with a 12-year-old girl. He failed to complete his previous court-ordered sex-offender-treatment program. Because the record revealed a basis for the sex-offender treatment condition, defendant could not show prejudice to his substantial rights. U.S. v. Francis, __ F.3d __ (10th Cir. June 5, 2018) No. 16-1449.
8th Circuit lacks jurisdiction to review recommendation to Bureau of Prisons. (580) A jury found defendant guilty of transporting a minor in interstate commerce with intent to engage in criminal sexual activity, in violation of 18 U.S.C. §2423(a). In addition to prison and a lifetime term of supervised release, the district court stated it was going to “order [defendant] not to ever have contact with the victims in this case again” and later clarified this was a recommendation for the BOP to be included in the recommendation section of the judgment. The Eighth Circuit held that it lacked jurisdiction to hear an appeal of a recommendation to the Bureau of Prisons. To the extent the district court ordered defendant not to have contact with his victims, the district court had no statutory authority to issue such an order. See 18 U.S.C. §3551. Further, the appellate court had no jurisdiction to review the provision recommending the BOP to monitor defendant’s communications. U.S. v. Duffin, 844 F.3d 786 (8th Cir. 2016).
D.C. Circuit finds appeal waiver did not bar challenge to supervised release condition. (580)(760) As part of his plea agreement, defendant waived his right to appeal certain aspects of his sentence. The district court conditioned his supervised release on defendant staying away from the Potomac Gardens housing project. Defendant appealed, challenging both the stay-away condition and the district court’s failure to explain it. The D.C. Circuit held that the appeal waiver did not unambiguously bar defendant’s challenge to the “stay-away” condition. The defendant waived “the right to appeal the sentence in this case, including any term of imprisonment, fine, forfeiture, award of restitution, term of supervised release, authority of the Court to set conditions of release, and the manner in which the sentence was determined.” The condition could be read to include any aspect of the sentence, including the conditions of supervised release. However, defendant might also have reasonably believed that the clauses about his “term of supervised release” and the “authority of the Court to set conditions of release” displacd the more general waiver. Neither clause about supervised release unambiguously barred the claims defendant brought on appeal. U.S. v. Hunt, 843 F.3d 1022 (D.C. Cir. 2016).
D.C. Circuit upholds requiring defendant to “stay away” from a particular housing project. (580)(760) Defendant, a drug dealer that often worked out of Potomac Gardens housing project, pled guilty to heroin conspiracy charges. Without saying why, the district court conditioned his term of supervised release on defendant staying away from Potomac Gardens. On appeal, the D.C. Circuit affirmed the stay-away condition because defendant did not object at sentencing, and he could not meet the requirements of plain error. Moreover, the condition was tailored to defendant’s criminal history, 18 U.S.C. §3553(a)(1), would deter him from criminal conduct, §3553(a)(2)(B), and would protect the public. The condition made drug dealing more difficult and less tempting for defendant, and did not unduly restrict defendant’s liberty. U.S. v. Hunt, 843 F.3d 1022 (D.C. Cir. 2016).
1st Circuit affirms reliance on 10-year old child porn conviction to impose sex offender conditions of release. (580) Defendant pled guilty to failing to register as a sex offender. He was sentenced to time served and five years of supervised release, subject to various conditions, including sex offender treatment and restrictions on contact with minors. He argued on appeal that because his conviction for child pornography occurred nine years before the SORNA violation, the court had insufficient justification to impose conditions related to his child pornography conviction. The First Circuit found no error. In two recent cases, it upheld nearly identical conditions in similar circumstances. U.S. v. Pabon, 819 F.3d 26 (1st Cir.) (2016); U.S. v. Mercado, 777 F.3d 532 (1st Cir. 2015). Here, defendant had been convicted of three more crimes in the intervening years, and was incarcerated for the first five years after his 2006 conviction, which meant that he had committed three crimes in the five years that he was free. U.S. v. DaSilva, 843 F.3d 8 (1st Cir. 2016).
1st Circuit finds adequate explanation for sex offender conditions of supervised release. (580) Defendant pled guilty to failing to register as a sex offender. His sentence included five years of supervised release, subject to various conditions, including sex offender treatment and restrictions on contacts with minors. When the defendant objected to the conditions of supervised release, the district court responded that “the information contained in paragraph 51” of the PSR was “sufficient” to support the conditions. Paragraph 51 explained the details of his 2006 child pornography conviction. The First Circuit found this explanation sufficient. The panel could infer from the district court’s reference to Paragraph 51 that it was concerned about the serious nature of the underlying sex offense, and when combined with the defendant’s criminal history, made him more likely to reoffend. U.S. v. DaSilva, 843 F.3d 8 (1st Cir. 2016).
1st Circuit remands to clarify if contact with fiancée’s child was barred by supervised release condition. (580) Defendant pled guilty to failing to register as a sex offender. His sentence included five years of supervised release, subject to various conditions, including restrictions on contacts with minors. At the time of his arrest, defendant was living as a family with his fiancée, their minor child, and his fiancée’s child, whom defendant claimed to be raising as his own. Defendant argued that the soon-to-be-stepchild should be treated the same as defendant’s biological child for purposes of the release conditions. The First Circuit noted that the district court may have intended this when specifying that he could associate and reside with his “own” children, but the order was not clear on that point. Therefore, the case was remanded to clarify whether the fiancée’s child was included in the exception to the general conditions.. U.S. v. DaSilva, 843 F.3d 8 (1st Cir. 2016).
7th Circuit upholds lifetime term of supervised release for child porn defendant. (580) Defendant was convicted in state court for his predatory criminal assault of a four-year-old family member. He later pled guilty in federal court to videotaping assaults of the same child on two other dates, and receiving and possessing child pornography of other victims. He was sentenced to 630 months’ imprisonment for the federal offenses, and a lifetime term of supervision. The Seventh Circuit held that the district court adequately justified its reasons for imposing a life term of supervision. The judge stated that she took all of the relevant §3553(a) factors into consideration. She acknowledged defendant’s lack of criminal history, his cooperation in the case, his difficult childhood, and his low intellectual capacity. She stated that the sentence would help defendant transition back into society, ensure he did not resume illegal activities, protect the public, create deterrence for similar offenses, and provide defendant with ongoing treatment and support. These reasons were distinct from the judge’s consideration of the need for just punishment, which, under 18 U.S.C. §3583(c), is only appropriate in determining a term of imprisonment.. U.S. v. Schrode, 839 F.3d 545 (7th Cir. 2016).
7th Circuit finds defendant waived non-delegation clause challenge to supervised release conditions. (580)(855) Defendant was convicted in state court for his predatory criminal assault of a four-year-old family member. He later pled guilty in federal court to videotaping assaults of the same child on two other dates, and receiving and possessing child pornography of other victims. His federal sentence included a lifetime term of supervision, subject to several conditions. Defendant argued on appeal that several of the conditions violated the non-delegation clause of the Constitution, pointing to four conditions which authorized varying levels of discretion by the probation office. The Seventh Circuit held that defendant waived any challenges to his conditions of supervised release by affirmatively withdrawing his objections to those conditions at sentencing. The district court explicitly asked defense counsel at his sentencing hearing if he was withdrawing his objections to each of the conditions of supervised release he now challenges, identifying them individually by their paragraph number in the presentence report. He confirmed his withdrawal of objections to all of the conditions he now challenged, contingent on the court’s acceptance of conditions that were agreed to by the parties. U.S. v. Schrode, 839 F.3d 545 (7th Cir. 2016).
5th Circuit reverses condition requiring defendant to participate in mental health program. (580) Defendant challenged for the first time on appeal a special condition of supervised release requiring him to participate in a mental health program “as deemed necessary and approved by the probation officer.” The government and defendant both agreed that the special condition was unsupported by the record. The court also required defendant to participate in anger management counseling as part of his supervised release conditions. The parties contended that the anger management counseling requirement addressed any issues apparent in the record involving defendant’s history of anger and violence, thereby rendering the mental health treatment requirement superfluous. The Fifth Circuit agreed. The mental health condition was not reasonably related to any of the §3553 factors. U.S. v. Gordon, __ F.3d __ (5th Cir. Sept. 29, 2016) No. 15-41510.
5th Circuit finds appeal of supervised release condition was not ripe for review. (580) Under §3583(b) and (d), a term of intermittent confinement may be “imposed only for a violation of a condition of supervised release.” Defendant argued for the first time on appeal that the court plainly erred by ordering intermittent confinement as a condition of supervised release regardless of whether a supervised release violation was alleged or adjudicated. The Fifth Circuit held that defendant’s claim was not ripe for review. A supervised release condition that is patently mandatory, i.e., its imposition is “not contingent on future events”, is ripe for review on appeal. However, an appeal is not ripe if it is “a matter of conjecture” whether the requirements of the condition will take effect. Here, defendant would not automatically be subject to intermittent confinement upon release. Rather, the sentence said that defendant would “submit” to a term of intermittent confinement only “at the direction of the Court pursuant to law.” This included the legal limitation that any term of intermittent confinement could be “imposed only for a violation of a condition of supervised release.” U.S. v. Magana, __ F.3d __ (5th Cir. Sept. 13, 2016) No. 15-50986.
1st Circuit reverses condition of release restricting right to associate with minors. (580) Defendant pled guilty to failing to register as a sex offender under the Sex Offender Registration and Notification Act (SORNA). He argued that the district court erred in failing to provide an explanation for a condition of supervised release barring him from contact with children under the age of 18. The First Circuit agreed and reversed. The offense that triggered defendant’s registration requirement occurred in 1999, and defendant had not committed any sexual or violent crimes in the intervening years. The condition here was very broad, barring defendant from having unapproved “direct or indirect contact” with all children, male or female, and of all ages, whether or not they were members of defendant’s family. The record did not contain any instance in which defendant committed a sex offense of any kind against boys, against pre-pubescent children, or against any member of his family. The government made no argument that defendant was a danger to such children. U.S. v. Fey, 834 F.3d 1 (1st Cir. 2016).
1st Circuit upholds requiring approval before defendant works in direct contact with children. (580) Defendant pled guilty to failing to register as a sex offender under the Sex Offender Registration and Notification Act (SORNA). He challenged on appeal a condition of supervised release that he not be employed or volunteer in any capacity that might cause him to come into direct contact with children except as approved by the probation office. The First Circuit affirmed. Although the district court did not spell out its reasoning, the record plainly indicated that defendant could pose a danger to children in the employment context. His prior sex offense involved raping an underage co-worker after providing her with alcohol at a party that he was hosting for his co-workers. Thus, a condition requiring that he seek approval from probation before accepting a job or volunteer activity that would bring him into direct contact with minors was reasonably related to his criminal history. This condition was less sweeping than a more associational condition, since it operated only in the employment context, and required approval before accepting a job that would put him in direct, rather than indirect, contact children. U.S. v. Fey, 834 F.3d 1 (1st Cir. 2016).
1st Circuit says defendant waived objection to sex offender evaluation. (580)(855) Defendant pled guilty to failing to register as a sex offender under the Sex Offender Registration and Notification Act (SORNA). The district court imposed, as a condition of supervised release, a requirement that defendant “participate in a sexual specific evaluation or sex offender specific treatment, conducted by a sex offender treatment provider, as directed and approved by the Probation Office.” The First Circuit held that defendant affirmatively waived his objection to this condition during a colloquy with the district court. In this colloquy, defendant requested that a sex offender evaluation take place. He then affirmatively abandoned any objection to the sex offender treatment portion of the condition upon being told that he could object at a later date if probation did in fact direct such treatment. U.S. v. Fey, 834 F.3d 1 (1st Cir. 2016).
8th Circuit upholds special condition banning child porn defendant from internet access. (580) Defendant pled guilty to receiving child pornography. He challenged for the first time on appeal a special condition of supervised release that banned him from using or possessing a computer. He acknowledged that some limitation on his computer and internet use was appropriate under 18 U.S.C. §3583(d), but contended that the condition created a total ban on his computer and internet use, which amounted to a greater deprivation of liberty than necessary. The Eighth Circuit found that defendant read the condition too broadly, and upheld the condition. The condition as worded was not a model of clarity, but it did not need to be construed as a total ban on all computer use. Complete bans on computer and internet use significantly constrict liberty in an era where computers are ubiquitous. The panel instead read the condition to ban only the use of a computer or other electronic device for obtaining internet access. U.S. v. Gauld, 833 F.3d 941 (8th Cir. 2016).
Commission revises and rearranges conditions of probation and supervised release. (560)(580) In an effort to make conditions of probation and supervised release easier to understand and enforce, the Commission revised, clarified, and rearranged the conditions in §§5B1.3 and 5D1. The amended conditions relate to (1) court-established payment schedules, (2) the Sex Offender Registration and Notification Act, (3) reporting to the probation officer, (4) leaving the jurisdiction, (5) answering truthfully and following instructions, (6) residence and employment, (7) visits by probation officer, (8) association with criminals, (9) arrested or questioned by a law enforcement officer, (10) firearms and dangerous weapons, (11) acting as an informant, (12) duty to notify of risks posed by the defendant, (13) support of dependents, (14) alcohol and controlled substances and frequenting places where controlled substances are sold, and (15) material change in economic circumstances. Amendment 5, effective November 1, 2016.
7th Circuit affirms life term of supervised release for child pornographer. (580) Defendant was convicted of producing child pornography and posting it on the internet. The court sentenced defendant, who was 80 years old, to the statutory minimum 15 years in prison and imposed a life term of supervised release. He argued on appeal that the district court did not justify the length of the supervised release term. The Seventh Circuit held that the district judge sufficiently justified the life term of supervised release. The judge said that given defendant’s “sexual deviancy and ease with which crimes victimizing minors can be committed by means of a computer, the term of supervised release for the balance of defendant’s life is needed to ensure that even at an extremely advanced age the defendant will not be able to victimize any more minors.” U.S. v. Gabriel, __ F.3d __ (7th Cir. Aug. 2, 2016) No. 15-3427.
7th Circuit holds that defendant waived challenge to conditions of supervised release. (580)(855) Defendant was convicted of producing child pornography and posting it on the internet. The court imposed several conditions of supervised release, and defendant argued on appeal that the conditions were vague, overly restrictive and supported by inadequate findings. The Seventh Circuit held that defendant waived these claims by failing to raise them in the district court. The district court followed the procedure recommended in U.S. v. Kappes, 782 F.3d 828 (7th Cir. 2015), to ensure that the parties had ample advance notice of proposed conditions of supervised release. The court took the further step of warning the parties in writing that failure to object to conditions recommended in the PSR could be treated as waiver. Defense counsel then confirmed at the start of the sentencing hearing that defendant did not wish to object, and later the lawyer said no when asked if she had “any objection to those conditions.” U.S. v. Gabriel, __ F.3d __ (7th Cir. Aug. 2, 2016) No. 15-3427.
7th Circuit requires complete resentencing where court did not justify supervised release conditions. (197)(580) While defendant’s appeal was pending, the Seventh Circuit decided U.S. v. Thompson, 777 F.3d 368 (7th Cir. 2015). The parties requested a remand for resentencing under Thompson because the district court had not justified the conditions of supervised release. The Seventh Circuit granted the motion, and at the second sentencing hearing, the district court imposed the same conditions of supervised release. On appeal, the Seventh Circuit clarified that a remand “in light of Thompson” required full resentencing, unless the mandate specified otherwise. A Thompson remand gives a district court the power to hear new evidence and arguments that were not made on appeal. The defendant must also be given an opportunity for allocution. However, the court is not required to rehear the evidence presented at the original sentencing hearing. The panel reversed because it appeared that the district court believed that the remand was limited to the conditions of supervised release. U.S. v. Mobley, __ F.3d __ (7th Cir. Aug. 15, 2016) No. 15-2255.
1st Circuit upholds one year in residential reentry center as condition of supervised release. (580) The judge revoked defendant’s supervised release and sentenced him to 12 months in prison, followed by 24 months of supervised release, on condition that he spend the first year of supervised release at a residential reentry center. Defendant argued that this condition was unreasonable, but the First Circuit found no error. Defendant had a “long history” as a “con man.” His “recidivist ways” supported the court’s finding that ordinary supervised-release conditions would not achieve the statutory goals of sentencing, making it necessary to impose greater restrictions. U.S. v. Marino, __ F.3d __ (1st Cir. Aug. 9, 2016) No. 15-1998.
1st Circuit upholds condition requiring defendant to provide financial information. (580) As a condition of supervised release, the district court required defendant to “provide the Probation Officer access to any financial information upon request.” The First Circuit found no plain error. While the district court did not articulate its rationale for imposing the special condition, the court’s reasoning could be gleaned from the context of the proceedings. The order specifically required defendant to “support his … dependents” and “work regularly at a lawful occupation.” The financial disclosure condition complemented these conditions by allowing the probation officer to monitor the money defendant was earning and spending, which would aid the probation officer in keeping tabs on his rehabilitation. The fact that defendant had no assets, and was not ordered to pay a fine or restitution did not make the condition unreasonable. U.S. v. de Jesus, __ F.3d __ (1st Cir. July 29, 2016) No. 15-1962.
5th Circuit reverses condition delegating unspecified lifestyle restrictions to therapist. (580) Defendant was convicted of failing to register as a sex offender. He argued on appeal that the district court impermissibly delegated judicial authority by directing that he comply with unspecified “lifestyle restrictions” that might be imposed by a therapist during the term of his supervised release. The Fifth Circuit agreed. The manner and means of therapy during a treatment program may be devised by therapists rather than the court. However, the condition here gave therapists the authority to impose, without court review, independent conditions of supervised release that could serve as the basis for violations of supervised release apart from non-compliance with the treatment program. The condition differed from special conditions upheld by other circuits, which were tethered to the treatment program. Moreover, the court here refused to grant a requested modification to require the therapist to recommend lifestyle restrictions to the court through the probation officer. This suggested that the court did not intend to “retain[ ] and exercise[ ] ultimate responsibility.” U.S. v. Morin, __ F.3d __ (5th Cir. Aug. 8, 2016) No. 15-50197.
5th Circuit rejects special condition that was not in oral sentence after defendant objected. (580) Defendant was convicted of failing to register as a sex offender. He challenged on appeal a condition of supervised release that required him to abstain from alcohol and other intoxicants. The condition had been recommended in defendant’s PSR, but defendant had objected, and the court did not mention the condition at sentencing. When there is a conflict between a written sentence and an oral pronouncement, the oral pronouncement controls. The Fifth Circuit ruled that district court’s failure to rule on defendant’s objection to the special condition, coupled with the court’s silence on the condition during its oral pronouncement, created a conflict, not an ambiguity. Accordingly, the panel vacated the special condition and remanded with instructions for the district court “to amend its written judgment to conform to its oral sentence.” U.S. v. Morin, __ F.3d __ (5th Cir. Aug. 8, 2016) No. 15-50197.
7th Circuit says district court should not revise supervised release while appeal is pending. (580) The district court sentenced defendant in December 2014, before the Seventh Circuit announced new requirements for conditions of supervised release. See, e.g., U.S. v. Thompson, 777 F.3d 368 (7th Cir. 2015); U.S. v. Kappes, 782 F.3d 828 (7th Cir. 2015). Conceding that nine of the conditions were problematic, the government asked the district court to fix the problem while defendant’s appeal was pending. The government did not ask the district judge to use Circuit Rule 57, but rather, to proceed as if no appeal were pending and to modify the conditions of supervised release under 28 U.S.C. §3583(e)(2). The court then summarily changed the language of nine conditions. Defendant filed a new appeal, contending that the district court lacked jurisdiction. The Seventh Circuit held that regardless of whether the court had jurisdiction, it should not exercise that jurisdiction without obtaining permission under Circuit Rule 57. U.S. v. Ray, __ F.3d __ (7th Cir. July 27, 2016) No. 14-3799.
8th Circuit upholds requiring defendant to reside at residential reentry center despite previous failure. (580) About a month after defendant reported to a residential reentry center, as required by his second term of supervised release, the district court revoked his supervised release based on defendant’s undisputed rules violations. The court imposed additional imprisonment, and another term of supervised release. The court also reimposed the condition requiring defendant to live at a residential reentry center for up to 120 days upon his release. The Eighth Circuit rejected defendant’s argument that it was illogical for the court to impose the condition after finding that he would not follow the rules at such a center. Although defendant failed to succeed at the reentry center in 2015, temporary residence at such a center was designed to facilitate successful reentry to the community, and the court presumably believed that defendant’s chances of success outside of prison would be enhanced by a productive stint at a reentry center. It was not plain error for the court to require defendant to reside at such a center again in the hope of better performance after his renewed incarceration. U.S. v. Kimball, __ F.3d __ (8th Cir. July 27, 2016) No. 15-2214.
1st Circuit reverses ban on adult pornography that was imposed without explanation. (580) Defendant pled guilty to possessing child pornography. He challenged for the first time on appeal a special condition of supervised release that limited his access to all pornographic material. The condition also barred him from entering any place where such pornography could be accessed. Previous cases have rejected such conditions where the trial court did not “provide a reasoned and case-specific explanation” for the special condition. See U.S. v. Perazza–Mercado, 553 F.3d 65 (1st Cir. 2009), and U.S. v. Medina, 779 F.3d 55 (1st Cir. 2015). Accordingly, the First Circuit found plain error and reversed. No explanation could be inferred from evidence that defendant watched adult porn with his longtime partner, and there was no indication that the court imposed the condition based on the government’s claimed link between recidivism of sexual offenders and exposure to pornography. U.S. v. Gall, __ F.3d __ (1st Cir. July 15, 2016) No. 14-1948.
7th Circuit says requiring notification of “risks” associated with defendant’s “history” is not vague. (580) Defendant, who filmed at least five minor girls undressing and showering in his home, was convicted of 22 counts of sexual exploitation of children. His sentence included 15 years of supervised release. The court ordered, as a condition of supervised release, that defendant “allow probation to notify … areas or people or agencies frequented or attended by minors” of “any risk associated with [defendant’s] history.” Defendant argued, based on U.S. v. Thompson, 777 F.3d 368 (7th Cir. 2015), that the condition was vague because it was not clear what “history” and “risk” meant. The Seventh Circuit held that the requirement was not vague. Criticism of these terms has been guided by the principle that special conditions should “generally apprise [a defendant] of what conduct is lawful and what could land him back in prison for violating his supervised release conditions.” There was no such problem here. Defendant simply had to give permission to probation to notify third parties. The only way he could violate the condition was by withholding consent. U.S. v. Miller, __ F.3d __ (7th Cir. July 14, 2016) No. 15-2239.
7th Circuit upholds condition barring sex offender from “contact” with minors. (580) Defendant, who filmed at least five minor girls undressing and showering in his home, was convicted of 22 counts of sexual exploitation of children. The court ordered, as a condition of supervised release, that defendant not have any contact with any person under the age of 18, unless it was supervised, “in the course of normal commercial business,” or “unintentional incidental contact.” The district court refused to make an exception for children related to defendant because one of the victims was the half-sister of his younger son. The Seventh Circuit upheld the condition. Defendant was serving an 18-year term of imprisonment, so any minor children he might have now would be longer be minors upon his release. The word “contact” was not vague; the condition prohibited all contact. U.S. v. Miller, __ F.3d __ (7th Cir. July 14, 2016) No. 15-2239.
7th Circuit upholds condition that sex offender submit to physiological testing. (580) Defendant, who filmed at least five minor girls undressing and showering in his home, was convicted of 22 counts of sexual exploitation of children. As a condition of supervised release, the court ordered defendant to submit to physiological testing to the extent ordered by his Sex Offender Treatment Program. He argued that the condition was “impermissibly vague, overbroad, and unnecessary,” “greater than necessary deprivation on his liberty,” and not sufficiently tied to the §3553 factors, in large part because it might subject him to plethysmograph testing. The Seventh Circuit upheld the condition, noting that under U.S. v. Kappes, 782 F.3d 828 (7th Cir. 2015), any challenge to hypothetical testing “involve[d] too many contingencies to make the issue ripe for review.” U.S. v. Miller, __ F.3d __ (7th Cir. July 14, 2016) No. 15-2239.
8th Circuit approves financial conditions of supervised release. (580) A jury convicted defendant of multiple counts of assault. He appealed from two conditions of supervised release requiring him to provide financial information to the probation office upon request, and prohibiting him from incurring any new credit card charges or opening lines of credit without approval. The Eighth Circuit upheld the challenged supervised release conditions. Defendant committed the crime almost immediately after asking his stepmother for money, and his prior conviction for terroristic threats was related to money. Further, defendant was ordered to pay restitution of ten dollars, a special assessment of $300 dollars, and to contribute to the cost of drug treatment. At the time of sentencing, defendant also owed $185 for a fine arising out of a prior offense. Defendant’s financial condition potentially played a role in his criminal conduct. Further, these conditions were “not a prohibition on behavior, but rather a monitoring device that [can] be used by the probation office to complement” other conditions. U.S. v. Hart, __ F.3d __ (8th Cir. July 13, 2016) No. 15-3788.
9th Circuit says restitution can be imposed as condition of supervised release. (580)(610) Defendant was convicted of transporting illegal aliens, in violation of 8 U.S.C. §1324(a). At sentencing, the district court ordered defendant to pay restitution to a rental car company whose car had been damaged during his alien smuggling offense. The Ninth Circuit held that restitution can be imposed as a condition of supervised release. The court rejected defendant’s argument that the Supreme Court in Paroline v. U.S., 134 S. Ct. 1710 (2014), held that restitution is a form of punishment that cannot be imposed as a supervised release condition. U.S. v. Alvarez, __ F.3d __ (9th Cir. Sept. 1, 2016) No. 14-50506.
5th Circuit declines to correct error in term of supervised release for failure to register. (580) Defendant was convicted of failure to register as a sex offender. His sentence included a ten-year term of supervised release, which he challenged for the first time on appeal. The PSR relied on 18 U.S.C. §3583(k), which requires a supervised release term of five years to life for failure to register. However, guideline §5D1.2(a)(2) requires a one-to-three year term of supervised release for Class C felonies, such as failure to register. The PSR failed to consider Amendment 786, which clarifies that when the statutory range of supervised release is above the maximum recommended in §5D1.2, then a single point of supervised release exists at the bottom of the statutory range. Since this amendment, the Fifth Circuit has held that the correct term of supervised release for failure to register is five years. See U.S. v. Putnam, 806 F.3d 853 (5th Cir. 2015). Accordingly, the Fifth Circuit found that the court erred, and that the error affected defendant’s substantial rights. Nonetheless, the panel declined to exercise its discretion to correct the error. Defendant had an extensive criminal history, and the district court expressed its concern that defendant’s life was not “squared away.” Moreover, after asking for a below-guidelines prison term, defendant asked the judge to impose “supervision for as much as you want.” Based on this, the term of supervised release was fair and did not call into question the integrity of judicial proceedings. U.S. v. Brown, __ F.3d __ (5th Cir. June 22, 2016) No. 15-50321.
7th Circuit does not require court to separately justify term of supervised release. (580) Defendants were convicted of tax fraud. They contended that the district court did not adequately explain the reasons for their two-year terms of supervised release. They argued that under 18 U.S.C. §3583(c), the district court was required to consider separately the §3553(a) factors justifying their terms and conditions of supervised release. The Seventh Circuit disagreed. Supervised release is part of the sentence, so the district court’s justifications for imposing a sentence of imprisonment also apply to the term of supervised release. Moreover, the district court specifically tied the conditions of supervised release to the §3553(a) factors, explaining that the discretionary conditions were “all necessary to facilitate supervision of you ….” The court also noted that the special conditions were “necessary to provide for your rehabilitation and ensure that you’re engaged in lawful pursuits rather than criminal activity,” and were “necessary in light of the significant losses your scheme caused the United States Treasury.” U.S. v. Bickart, __ F.3d __ (7th Cir. June 17, 2016) No. 15-2890.
7th Circuit upholds supervised release condition requiring defendant to work or study. (580) Defendant argued for the first time on appeal that a condition of supervised release, which provided that defendant must “[s]eek, and work conscientiously, at lawful employment or pursue conscientiously a course of study or vocational training that will equip the defendant for employment,” was impermissibly vague because “conscientiously” was undefined. The Seventh Circuit acknowledged that the condition could be worded more clearly , but found that the condition was permissible, especially under plain error review. “The condition was meant to ensure that defendant[] [was] genuinely working towards paying restitution. This understanding would be sufficiently clear to a reasonable person.” U.S. v. Bickart, __ F.3d __ (7th Cir. June 17, 2016) No. 15-2890.
7th Circuit rejects challenge to restriction on incurring new credit charges. (580) Defendants challenged for the first time on appeal that a condition of supervised release which barred them from “incur[ring] new credit charges or open[ing] additional lines of credit without the approval of a probation officer unless the defendant is in compliance with the financial obligations imposed by” the court. They argued that the condition was overbroad because it would prevent them from making essential purchases such as food and gasoline, impose an undue burden on them, and stifle rehabilitative ends. The Seventh Circuit disagreed. The condition would only restrict defendants if they failed to comply with the restitution obligations imposed by the district court. The schedule of restitution payments only required that defendants pay ten percent of their monthly income less basic expenses. Further, the condition included an exception if defendants obtained the approval of a probation officer. Given these limits, defendants’ concerns were exaggerated. U.S. v. Bickart, __ F.3d __ (7th Cir. June 17, 2016) No. 15-2890.
7th Circuit upholds condition requiring notice of material change in economic circumstances. (580) Defendant argued that a condition of supervised release requiring defendant to “[n]otify the court of any material change in the defendant’s economic circumstances that might affect the defendant’s ability to pay restitution, fines, or special assessments” was unconstitutionally vague because the meaning of “any material change” is not defined. The Seventh Circuit disagreed, finding the condition “more precise” than the one rejected in U.S. v. Kappes, 782 F.3d 828, 845 (7th Cir. 2015). Kappes found that a condition requiring the defendant to notify his probation officer of any change in employment was too vague because it “fail[ed] to indicate whether change in employment just means changing employers or also includes changing from one position to another for the same employer at the same workplace.” This condition only required defendant to notify the court of a change in economic circumstance when that change was material, and the condition specifically tied the requirement to defendants’ ability to pay restitution. U.S. v. Bickart, __ F.3d __ (7th Cir. June 17, 2016) No. 15-2890.
7th Circuit rejects as vague condition requiring notice to third parties of “risks” from defendant’s criminal record. (580) Defendants’ PSR recommended a condition of supervised release that required defendants to notify third parties “of risks that may be occasioned by the defendant’s criminal record or personal history or characteristics.” After defendants objected, the court modified the condition to require the probation office to seek the court’s approval and give defendants seven days’ notice before notifying or requiring notification of third parties. The Seventh Circuit agreed with defendant that the revised condition remained improperly vague under U.S. v. Kappes, 782 F.3d 828, 845 (7th Cir. 2015) and U.S. v. Thompson, 777 F.3d 368 (7th Cir. 2015). Although the district court’s modification softened the consequences of the vagueness identified in Thompson and Kappes, those cases found that the terms “personal history,” “characteristics,” “risks,” and “third parties,” were impermissibly vague. On remand, the district court should define these vague terms or remove them. U.S. v. Bickart, __ F.3d __ (7th Cir. June 17, 2016) No. 15-2890.
7th Circuit upholds condition permitting probation officer to visit at reasonable times at home or work. (580) Defendant argued that a condition of supervised release that he “[p]ermit a probation officer to visit the defendants at any reasonable time at home and at work” was unwarranted and overly broad. He noted that there were other, less invasive ways for the probation office to confirm his employment status, such as calling his employer or requesting proof of employment. The Seventh Circuit upheld the condition as not overly intrusive. A similar condition was disapproved by U.S. v. Thompson, 777 F.3d 368 (7th Cir. 2015) because it “would allow the probation officer to ‘visit’ the defendant at 3:00 a.m. every morning ….” But the condition here only permitted probation officers to visit defendant at a “reasonable time.” In addition, this condition was appropriate because defendant and his wife were convicted for defrauding the government. U.S. v. Bickart, __ F.3d __ (7th Cir. June 17, 2016) No. 15-2890.
7th Circuit does not require district court to provide separate justification for supervised release term. (580) Defendant argued on appeal that the district court committed reversible error when it said nothing to justify its decision to impose a supervised release term of three years. He contended that a district court must provide “separate §3553(a) justifications” for imposing a term of imprisonment and a term of supervised release pursuant to 18 U.S.C. §3853(c). The Seventh Circuit rejected the argument, holding that the court need only provide one overarching explanation and justification, tethered to the §3553(a) factors. Here, the court discussed defendant’s criminal history, and the need to protect the public from him. See 18 U.S.C. §3583(c). The court observed that defendant posed a high risk of recidivism, including “the risk of violent crime,” and had “difficulty complying with conditions of supervision.” Reducing recidivism is the main purpose of supervised release. U.S. v. Bloch, __ F.3d __ (7th Cir. June 17, 2015) No. 15-1648.
7th Circuit affirms despite failure to orally pronounce supervised release conditions where court circulated written conditions before sentencing. (580) Defendant’s first two sentences were vacated because of errors by the district court. Prior to his third resentencing the district court filed a “Notice of Proposed Conditions of Supervision,” stating that it would not “re-impose the conditions originally ordered” and proposing “the following 13 conditions, which [it] believe[d] to be less onerous than those originally imposed.” After each condition, the court explained in italics why it was imposing the condition. The Seventh Circuit found the district court properly followed the “best practice” suggested by its recent decision in U.S. v. Thompson, 777 F.3d 368 (7th Cir. 2015). Ordinarily, the oral sentence prevails over the written judgment, because this prevents courts from imposing supervised release conditions to which the defendant never had an opportunity to object. But here, the defendant had a chance to review the supervised release conditions as well as the reasons for imposing them, and he was given a meaningful opportunity to object. U.S. v. Bloch, __ F.3d __ (7th Cir. June 17, 2015) No. 15-1648.
7th Circuit finds defendant waived objections to seven of eight supervised release conditions. (580)(855) Defendant’s first two sentences were vacated because of errors by the sentencing court. Prior to his third resentencing the district court filed a “Notice of Proposed Conditions of Supervision.” After each proposed condition, the district court provided an explanation in italics for why it was imposing the condition. Defendant objected to one of those conditions, a home visit. On appeal, the Seventh Circuit held that defendant waived his right to challenge the other seven conditions. Defendant acknowledged that he reviewed the court’s proposed notice of conditions. He did object to the condition allowing for home visits, and said he had no other objections. Defendant’s decision to object to only one condition was the very “[t]ouchstone of waiver,” and indicated “a knowing and intentional decision.” U.S. v. Bloch, __ F.3d __ (7th Cir. June 17, 2015) No. 15-1648.
7th Circuit upholds home-visit condition of supervised release. (580) Defendant challenged on appeal a condition of supervised release allowing the “probation officer to meet [defendant] … at home or elsewhere” and to confiscate “any contraband the probation officer observes in plain view.” The condition generally prohibited the probation officer from visiting between the hours of 11 p.m. and 7 a.m. Defendant argued that this condition was invalid under the Fourth Amendment. The Seventh Circuit upheld the home-visit condition. It had previously considered and rejected the Fourth Amendment argument in U.S. v. Armour, 804 F.3d 859 (7th Cir. 2015). The court adequately explained that the home visit could “facilitate the probation officer’s ability to help” defendant. Further, the district court expressed concerns about defendant’s “difficulty complying with conditions of supervision” during the hearing. Assistance in this “decompression stage” was particularly necessary for defendants who have demonstrated issues in complying with conditions of supervised release. U.S. v. Bloch, __ F.3d __ (7th Cir. June 17, 2015) No. 15-1648.
7th Circuit vacates entire sentence where court did not make adequate supervised release findings. (580) Defendant argued that the district court erred in not making adequate findings when imposing conditions of supervised release. The Seventh Circuit agreed, citing U.S. v. Thompson, 777 F.3d 368 (7th Cir. 2015); U.S. v. Kappes, 782 F.3d 828 (7th Cir. 2015); U.S. v. Armour, 804 F.3d 859 (7th Cir. 2015). Although the district court did not have the benefit of guidance provided by Thompson and its progeny, the sentence was vacated and remanded for allow the court to make adequate findings. Because “there might properly be an interplay between prison time and the term and conditions of supervised release,” the panel vacated defendant’s entire sentence and remanded for complete resentencing. U.S. v. Gill, __ F.3d __ (7th Cir. May 31, 2016) No. 15-1779.
2nd Circuit upholds modifying supervised release to include standard conditions for sex offenders. (580) After defendant served his prison sentence for sexual exploitation of a minor and witness tampering, he was placed on supervised release. The probation department petitioned to modify the conditions of release to include what were, at time of the request, standard conditions of supervision for sex offenders. One new condition required defendant to submit his person or property, including electronic devices, to search at any time “with reasonable suspicion concerning a violation of a condition of probation or supervised release or unlawful conduct.” The second new condition required defendant to submit to polygraphs and computerized voice stress analyzers (CVSA). The Second Circuit noted that new or changed conditions were not a prerequisite to a district court’s decision to modify the conditions of release. Changes in technology since defendant was originally sentenced justified a broader search condition. The new polygraph/CVSA condition was also proper. The district court could properly find that defendant’s deceptive behavior during the course of the investigation warranted the condition. U.S. v. Parisi, __ F.3d __ (2d Cir. May 3, 2016) No. 15-963.
4th Circuit finds crime of violence underlying domestic violence offense justified SORNA registration. (580) A jury convicted defendant of kidnapping, interstate domestic violence, and possessing a firearm in furtherance of a crime of violence. The jury also determined that defendant committed aggravated sexual abuse in violation of 18 U.S.C. §2241(a)(2), which served as the predicate crime of violence for the interstate domestic violence charge. The Fourth Circuit upheld requiring defendant register as a sex offender under the Sex Offender Registration and Notification Act (SORNA) as a condition of supervised release. Although defendant’s interstate domestic violence offense was not one of the enumerated sex offenses, the statute also includes an offense with an element “involving a sexual act or sexual contact with another.” Here, the jury found the crime of violence underlying the domestic violence offense was aggravated sexual abuse. Because aggravated sexual abuse “involv[es] a sexual act or sexual contact with another,” defendant was convicted of a criminal offense that “has an element involving a sexual act or sexual contact with another”—a sex offense. U.S. v. Mullet, __ F.3d __ (6th Cir. May 4, 2016) No. 15-3212.
7th Circuit permits home visit by probation officer as condition of supervised release. (580) Defendant, a postal employee, was convicted of delaying the mail by discarding it in a wooded area rather than delivering it. He challenged a condition of supervised release that required him to submit to a visit by his probation officer, “at home or elsewhere” between the hours of 6 AM and 11 PM. The condition permitted a home visit but not a home search, although the probation officer could confiscate any contraband in plain view. Defendant argued that the home-visit condition violated the Fourth Amendment. The Seventh Circuit disagreed, citing U.S. v. Armour, 804 F.3d 859 (7th Cir. 2015). The sentencing court adequately justified the condition. Although defendant had opposed the condition, reminding the judge that he had not committed his crime at home, and, because the Postal Service had fired him, that he would not have any additional mail that he could steal or delay. The judge however, found the home-visit condition would enable the probation office to “keep watch” on defendant. Defendant maintained that the “keep watch” observation did not distinguish him from other felons, but the panel found this was not a problem. Judge Posner dissented. U.S. v. Carson, __ F.3d __ (7th Cir. May 6, 2016) No. 15-2899.
5th Circuit vacates bans on internet access and unsupervised contact with minors. (580) Defendant pled guilty to possessing child pornography. His sentence included a lifetime term of supervised release, including absolute bans on (1) having “access to any computer that is capable of internet access,” and (2) having “unsupervised contact with anyone under the age of 18.” Shortly after sentencing, in U.S. v. Duke, 788 F.3d 392 (5th Cir. 2015), the Fifth Circuit rejected the same lifetime conditions imposed on a child porn defendant. Defendant challenged these conditions for the first time on appeal, and the government conceded that the first two prongs of plain-error review were met because the two conditions were identical to those in Duke. Moreover, the errors affected defendant’s substantial rights because, if the district judge had known how Duke would be resolved, she presumably would not have imposed the same lifetime bans. As for the fourth prong, the panel noted it was not bound by the government’s concession of plain error. However, given the concession, the Fifth Circuit vacated the lifetime bans. U.S. v. Scott, __ F.3d __ (5th Cir. Apr. 19, 2016) No. 15-30516.
9th Circuit reverses ban on internet use as impermissible supervised release condition. (580) At defendant’s sentencing for conspiracy to commit securities fraud, the district court imposed as a condition of supervised release a requirement that defendant could not use the Internet without prior approval from his probation officer. The district court imposed this condition based on testimony from one of defendant’s victims that he had posted disparaging comments about the victim on the Internet. Reviewing for plain error, the Ninth Circuit held that the condition involved a greater deprivation of liberty than was reasonably necessary and directed the district court to craft a more narrowly tailored condition aimed at defendant’s Internet posts. U.S. v. LaCoste, __ F.3d __ (9th Cir. May 12, 2016) No. 15-30001.
9th Circuit finds lack of support for barring residence in counties where offense occurred. (580) As a condition of supervised release at defendant’s sentencing for conspiracy to commit securities fraud, the district court barred defendant from living in the four counties near where he had committed his fraud. The court reasoned that if defendant went back to the communities where he had committed the offense he would fall back into his old behavior. The Ninth Circuit found that the district court had not provided a sufficient explanation for this condition and that the condition appeared to be broader than the counties where the offense occurred. U.S. v. LaCoste, __ F.3d __ (9th Cir. May 12, 2016) No. 15-30001.
1st Circuit says district court articulated need for sex offender treatment and polygraph testing. (580) Defendant was convicted of failing to register as a sex offender. He later violated his conditions of supervised release by eluding an officer, driving under the influence, driving without a license, and criminal mischief. The revocation sentence included a new period of supervised release requiring him to participate in sex offender treatment and to undergo random periodic polygraph exams if required by the therapeutic program. The First Circuit found that the district court sufficiently articulated the need for sex offender treatment and polygraph testing. Defendant’s refusal to accept responsibility for his sex offense, his lack of candor towards the court, and continued self-medication posed a real risk of recidivism. Further, sex offender treatment has been linked to reduced recidivism. Further, his psychologist’s testimony linked defendant’s mental illness and substance abuse to his sexual deviance. Thus, the imposed conditions were reasonably related to defendant’s offense and his characteristics. Defendant’s 2007 sex offense was not too remote to be reasonably related to the imposition of sex offender treatment, given his history and characteristics. U.S. v. Webster, __ F.3d __ (1st Cir. Apr. 13, 2016) No. 15-1045.
1st Circuit approves sex offender treatment, polygraph testing, and restricting association with minors. (580) Defendant was convicted of failing to register as a sex offender. As conditions of supervised release, the district court required defendant to participate in a sex offender treatment program and submit to polygraph testing, and restricted his association with minors. The First Circuit upheld the conditions as reasonable under 18 U.S.C. §3583(d). Defendant had a “copious” criminal history and received a clear explanation for the conditions. In 2005, he repeatedly molested the 14 year-old daughter of his then-girlfriend. He was convicted in 2008, less than three years before the present conviction. This offense was close in time to the SORNA violation, and involved a prolonged sexual relationship with a minor over whom he was in a position of apparent trust. Moreover, defendant had accumulated a staggering array of other convictions, including four for assault. The court found that the conditions were necessary in order to keep the public safe, and to protect minors. The district court did not ban defendant’s association with minors, but instead required prior approval by the probation officer. U.S. v. Pabon, __ F.3d __ (1st Cir. Apr. 8, 2016) No. 14-1850.
5th Circuit upholds conditions of release requiring sex offender treatment program, polygraph exams, and not residing near minors. (580) While on supervised release for the prior offense of failing to register as a sex offender, defendant placed a knife to his daughter’s neck, demanded that she have sex with him, penetrated her vagina with his hand, and threatened to kill himself if she refused. The district court revoked his supervised release, and imposed, as part of his sentence, a life term of supervised release with special conditions. The Fifth Circuit upheld on appeal conditions requiring defendant to participate in a treatment program for sex offenders, submit to polygraph examinations, and refrain from residing within 3,000 feet places frequented by minors. The district court determined these conditions were necessary because of the nature of defendant’s supervised release violation. While defendant disagreed with the court’s weighing of the applicable sentencing factors, he failed to show the conditions were not reasonably related to the need for deterrence and protection of the public or that they imposed a greater infringement upon his liberty than necessary. U.S. v. Winding, __ F.3d __ (5th Cir. Apr. 4, 2016) No. 15-60249.
5th Circuit upholds warrantless searches of computer. (580) While on supervised release, defendant sexually assaulted his daughter. The district court revoked his supervised release, and imposed, as part of his sentence, a life term of supervised release with special conditions. Defendant challenged a special condition of release allowing warrantless searches of his computer, noting that there was no evidence that any of his offenses were caused by or related to the use of a computer. The Fifth Circuit upheld the condition, finding it was reasonable in light of the statutory sentencing goals. Defendant had a recent history of repeated sexual abuse offenses, which bore a reasonable relationship to the search condition. The panel also did not find a greater burden on defendant’s liberty than was necessary. Defendant committed multiple sexual assaults against women while he was in the military, and then against his own minor daughter while on supervised release. A warrantless search of defendant’s electronic devices was permitted only “upon reasonable suspicion” of lawbreaking, thereby subjecting him at most to intermittent searches (and perhaps none at all if there was never reasonable suspicion). U.S. v. Winding, __ F.3d __ (5th Cir. Apr. 4, 2016) No. 15-60249.
7th Circuit rejects as vague, condition requiring defendant to support his dependents. (580) Defendant pled guilty to possessing and distributing illegal drugs and prostituting women. The Seventh Circuit vacated a condition of supervised release that required defendant to “use his best efforts to support his dependents.” In U.S. v. Sewell, 780 F.3d 839 (7th Cir. 2015), the court found a similar condition requiring a defendant to “support dependents and meet family responsibility” to be impermissibly vague and overbroad. Moreover, defendant was correct that the condition was not appropriately tailored to his personal history. He was sentenced to 25 years in prison, so by the time he was released, he would not likely have any dependents. U.S. v. Guidry, __ F.3d __ (7th Cir. Mar. 16, 2016) No. 15-1496.
7th Circuit vacates vague supervised release condition requiring defendant to notify third parties of “risks.” (580) Defendant pled guilty to possessing and distributing illegal drugs and prostituting women. The Seventh Circuit vacated a condition of supervised release that required defendant to “notify third parties of risks that may be occasioned by [his] criminal record or personal history or characteristics and … permit the probation officer to make such notification and confirm [his] compliance with such notification requirement.” In U.S. v. Kappes, 782 F.3d 828 (7th Cir. 2015), the court found a similar condition contained “numerous ambiguities.” As in Kappes, there was no indication of what was meant by “personal history” and “characteristics” or what “risks” must be disclosed to which “third parties.” Presumably, the meaning of these terms would change from defendant to defendant, which made definitions particularly important with this condition. U.S. v. Guidry, __ F.3d __ (7th Cir. Mar. 16, 2016) No. 15-1496.
7th Circuit rejects conditions requiring defendant to pay for treatment without discussing ability to pay. (580) Defendant pled guilty to possessing and distributing illegal drugs and prostituting women. As conditions of supervised release, the district court required defendant to participate in a sex offender treatment program and “pay the cost of the program under the guidance and supervision of his supervising probation officer.” A second condition required defendant to pay for alcohol and drug abuse treatment. In U.S. v. Baker, 755 F.3d 1515 (7th Cir. 2014), the court vacated similarly-worded conditions because they did “not specify what will happen if [the defendant] bears the burden of paying and is unable to do so.” For the same reason, the Seventh Circuit vacated and remanded these conditions. U.S. v. Guidry, __ F.3d __ (7th Cir. Mar. 16, 2016) No. 15-1496.
10th Circuit rejects vagueness challenges to conditions of supervised release. (580) Defendant argued that various conditions of supervised release were unconstitutionally vague. The Tenth Circuit disagreed, finding that the decision in U.S. v. Munoz, 812 F.3d 809 (10th Cir. 2016), resolved most of defendant’s challenges. As for the others, requiring defendant to notify the probation officer within 72 hours of being arrested or questioned by law enforcement was not vague. The requirement that defendant not leave the district without permission was recommended by the sentencing statute, 18 U.S.C. §3563(b)(13), and such conditions do not require particularized findings. The requirement to “report to the probation officer in a manner and frequency directed by the court or probation officer” was also in the statute, §3563(b)(15) and was not vague. Finally, the court did not abuse its discretion in requiring defendant to complete a substance abuse program, not frequent places where drugs were sold or used, and not associate with persons engaged in criminal activity. U.S. v. Llantada, __ F.3d __ (10th Cir. Mar. 8, 2016) No. 15-2082.
1st Circuit says appeal waiver barred challenge to supervised release conditions. (580)(850) Defendant pled guilty to child pornography charges. His plea agreement provided that if the court “sentence[d] him or her to the agreed-upon specific sentence, or agreed-upon sentencing range, the defendant agrees to waive and permanently surrender his or her right to appeal the judgment and sentence in this case.” Defendant challenged various conditions of supervised release on appeal, arguing that his challenges fell outside the scope of the waiver. The First Circuit disagreed, noting that the word “sentence” in a plea agreement encompasses every component of the sentence, including the term of supervised release and its attendant conditions. Defendant’s appeal of his supervised release conditions fell within the scope of his waiver. U.S. v. Velez-Luciano, __ F.3d __ (1st Cir. Feb. 25, 2016) No. 14-1738.
1st Circuit says internet restrictions were not a miscarriage of justice. (580)(850) Defendant pled guilty to child pornography charges, and was sentenced to 10 years in prison and 15 years of supervised release. He challenged on appeal several conditions of supervised release that precluded internet access without a probation officer’s approval. However, because defendant’s plea agreement contained a waiver of appeal, the First Circuit examined the conditions to see whether they would work a miscarriage of justice. The panel concluded they did not, and upheld the internet restrictions. Defendant exchanged sexually explicit Facebook messages with two minors; convinced one minor to view a pornographic site; groomed her behavior with the suggested website; and possessed sexually explicit pictures of the second minor on his computer. Given these facts, defendant could not demonstrate a miscarriage of justice in the district court’s imposition of the internet restrictions. U.S. v. Velez-Luciano, __ F.3d __ (1st Cir. Feb. 25, 2016) No. 14-1738.
1st Circuit says pornography ban would not result in miscarriage of justice. (580)(850) Defendant pled guilty to child pornography charges, and was sentenced to 10 years in prison and 15 years of supervised release. He challenged on appeal several conditions of supervised release that imposed a complete ban on his possession of pornography. Because defendant’s plea agreement contained a waiver of appeal, the First Circuit examined the conditions to see whether they would work a miscarriage of justice, and found that they did not. In contrast to previous cases rejecting such a ban, the record established a relationship between such material and the offense of conviction. Defendant suggested one minor view pornography so that she could perform the sexually explicit conduct defendant desired. Additionally, he encouraged a second minor to view a pornographic website of animated cartoons as a way of communicating to her what he wanted to do with her and the other minor. Undoubtedly, defendant had seen these sites before recommending them to his victims. Thus, defendant used pornography to further conduct related to his offense. Because pornography played a material role in defendant’s conduct, the ban reasonably related to the nature and circumstances of his offense. U.S. v. Velez-Luciano, __ F.3d __ (1st Cir. Feb. 25, 2016) No. 14-1738.
1st Circuit holds restriction on contact with minors was not miscarriage of justice. (580)(850) Defendant pled guilty to child pornography charges. He challenged on appeal several conditions of supervised release that effectively required him to obtain prior approval from a probation officer before interacting with, or even going near, children under the age of 18. However, because defendant’s plea agreement contained a waiver of appeal, the First Circuit examined the conditions to see whether they would work a miscarriage of justice, and concluded they did not. These conditions were not an occupational restriction. Although part of the conditions did limit defendant’s occupational options, the record supported the conditions. Defendant met his two minor victims through his professional oversight of a school band, and used this access to gain influence over and abuse them, including while at school. This met the “reasonably direct relationship” prong of the occupational restriction test. The less stringent conditions suggested by defendant failed to assure public safety. As for his minor son, the record reflected that defendant only posed a threat to young girls, so after his release from prison, the Probation Officer could provide an exception for contact with the son. U.S. v. Velez-Luciano, __ F.3d __ (1st Cir. Feb. 25, 2016) No. 14-1738.
1st Circuit vacates condition allowing PPG testing despite waiver of appeal. (580)(850) Defendant pled guilty to child pornography charges. His plea agreement contained a waiver of appeal, but he nonetheless challenged for the first time on appeal a special condition of supervised release that required him to undergo a sex offender treatment program and to comply with any of that program’s testing requirements, including penile plethysmograph (PPG) testing. After oral argument, the government advised the court in a Rule 28(j) letter that it no longer desired to potentially subject defendant to PPG testing. The First Circuit found that potentially subjecting defendant to PPG testing when the government expressly disavowed the utility of this particular procedure, especially when the record lacked any explanation of the applicability of PPG testing to defendant, was a miscarriage of justice. The panel thus declined to enforce defendant’s waiver of appeal. On the merits, the panel ruled that the condition constituted plain error, and vacated it. U.S. v. Velez-Luciano, __ F.3d __ (1st Cir. Feb. 25, 2016) No. 14-1738.
7th Circuit remands where court failed to orally pronounce conditions of supervised release. (580) Defendant was convicted of drug charges and sentenced to 75 months in prison and four years of supervised release. He argued that the district court erred by failing to orally pronounce certain conditions of supervised release that were included in its written order. The Seventh Circuit agreed, and remanded for full resentencing. Because supervised release is part of the sentence, the court must orally pronounce its conditions of supervised release. The court did not orally pronounce the 13 standard conditions nor the condition forbidding defendant from possessing a “destructive device” or “any other dangerous weapon.” These later added written conditions were therefore a nullity, and the panel vacated them, and remanded for full resentencing. U.S. v. Sanchez, __ F.3d __ (7th Cir. Feb. 26, 2016) No. 15-1252.
7th Circuit says appeal waiver barred challenge to conditions of supervised release. (580)(780)(850) As part of his plea agreement, defendant expressly waived “his right to appeal his sentence, … regardless of how the sentence and the offense level are calculated by the Court.” Defendant challenged on appeal several conditions of supervised release that he claimed were unconstitutionally vague, including that he (1) not leave “the judicial district;” (2) “support” his family and meet family responsibilities; (3) work “regularly” and notify his probation office of changes in employment; (4) avoid “excessive” alcohol use; (5) not knowingly “associate” with felons; and (6) permit regular visits by a probation officer. The Seventh Circuit enforced the waiver and dismissed the appeal. There was no “fundamental fairness” issue, as in U.S. v. Adkins, 743 F.3d 176 (7th Cir. 2014), where the court excused an appellate waiver to allow a defendant to challenge a condition barring defendant from “patroniz[ing]” any place where “sexually stimulating material or sexually oriented material” was available. None of the challenged conditions here involved constitutionally protected speech. U.S. v. Campbell, __ F.3d __ (7th Cir. Feb. 19, 2016) No. 15-1188.
6th Circuit upholds condition of supervised release barring use of alcohol. (580) Defendant argued for the first time on appeal that the district court erred in requiring, as a special condition of supervised release, that he abstain from the consumption of alcohol. The Sixth Circuit found no plain error. Defendant had a lengthy history of substance abuse, and a conviction for driving under the influence of alcohol. He also requested a substance abuse treatment program as part of his sentence, which the PSR recommended. In imposing the special condition, the district court chronicled defendant’s history of substance abuse, and concluded that his use of alcohol “could lead to some other problems.” The special condition was both procedurally and substantively reasonable. U.S. v. Robinson, __ F.3d __ (6th Cir. Feb. 8, 2016) No. 14-6164.
10th Circuit says work condition of supervised release, if vague, was not plain error. (580) Defendant pled guilty to drug charges. The district court imposed multiple conditions of supervised release, including requiring defendant to “work regularly at a lawful occupation, unless excused by the probation officer for schooling, training, or other acceptable reasons.” Defendant argued for the first time on appeal that the condition was impermissibly vague. The Tenth Circuit disagreed, finding any error would not have been plain. The condition was identical to one of the standard conditions recommended in the sentencing guidelines for supervised release. See §5D1.3(c)(5) (2014). In light of this recommendation, district courts impose this condition with virtual uniformity. This court has never addressed a vagueness challenge to the supervised release terms “regularly” or “other acceptable reasons.” In light of the lack of precedent invalidating this condition, the district court did not commit an obvious error (if any). U.S. v. Munoz, __ F.3d __ (10th Cir. Feb. 9, 2016) No. 15-2048.
10th Circuit upholds alcohol restriction as condition of supervised release. (580) Defendant pled guilty to drug charges. The district court imposed multiple conditions of supervised release, including a condition requiring defendant to “refrain from excessive use of alcohol” and not possess or use any controlled substance, except as prescribed by a physician, and a condition that he “refrain from the use and possession of alcohol and other forms of intoxicants.” The Tenth Circuit rejected defendant’s argument, raised for the first time on appeal, that the two conditions were inconsistent. The district court noted the inconsistency and orally explained that the prohibition on alcohol consumption took precedence. An oral condition controls over a written condition. Thus, the inconsistency between the written and oral conditions did not affect defendant’s substantial rights. The terms “excessive use,” “intoxicants” and “alcohol” were not improperly vague. U.S. v. Munoz, __ F.3d __ (10th Cir. Feb. 9, 2016) No. 15-2048.
10th Circuit affirms condition barring defendant from places where drugs are illegally sold or used. (580) Defendant pled guilty to drug charges. The district court imposed a condition of supervised release barring defendant from frequenting places where controlled substances were illegally sold, used, distributed, or administered. The Seventh Circuit has criticized a similar condition as too vague, U.S. v. Kappes, 782 F.3d 828 (7th Cir. 2015), while the Ninth Circuit has rejected a virtually identical challenge under the plain-error standard. U.S. v. Phillips, 704 F.3d 754 (9th Cir. 2012). Neither the Tenth Circuit nor the Supreme Court has ruled on the subject. In light of the split among other courts, any possible error would not have been obvious under the plain-error standard. Thus, the Tenth Circuit upheld the condition. U.S. v. Munoz, __ F.3d __ (10th Cir. Feb. 9, 2016) No. 15-2048.
10th Circuit says supervised release condition allowing workplace search was not plain error. (580) Defendant pled guilty to drug charges. The district court imposed a condition of supervised release requiring defendant to submit to a search of his person, property or automobile under his control. On appeal, defendant argued for the first time that this condition should be limited to searches of his home and automobile because workplace searches would make him less desirable as an employee. The Tenth Circuit upheld the condition, even assuming that the condition would affect defendant’s desirability as an employee. Defendant did not point to any case law supporting his challenge. Thus, any error was not obvious under the plain-error standard. U.S. v. Munoz, __ F.3d __ (10th Cir. Feb. 9, 2016) No. 15-2048.
10th Circuit upholds condition requiring defendant to notify probation within 72 hours of arrest or questioning. (580) Defendant pled guilty to drug charges. The district court imposed multiple conditions of supervised release, including a condition requiring defendant to notify his probation officer within 72 hours of being arrested or questioned by a law enforcement officer. Defendant argued for the first time on appeal that the condition was too vague. The Tenth Circuit found that any error would not have been obvious under the plain error standard. Most individuals would know the meaning of the terms “questioned,” “law enforcement officers,” and “arrested.” Other courts are divided on whether this condition is impermissibly vague. Compare U.S. v. Clarke, 428 F. App’x 712 (9th Cir. 2011) (unpublished) (not impermissibly vague), with U.S. v. Maloney, 513 F.3d 350 (3d Cir. 2008) (impermissibly vague). Thus, any error by the district court was not obvious. U.S. v. Munoz, __ F.3d __ (10th Cir. Feb. 9, 2016) No. 15-2048.
10th Circuit affirms bar on associating with felons. (580) Defendant pled guilty to drug charges. The district court imposed a condition of supervised release directing defendant not to “associate with any persons engaged in criminal activity, … [or] associate with any person convicted of a felony unless granted permission to do so by the probation officer.” Defendant argued for the first time on appeal that the condition was unconstitutionally vague. The Tenth Circuit disagreed. “[I]t is well established that associational conditions do not extend to [casual] or chance meetings.” U.S. v. Mike, 632 F.3d 686 (10th Cir. 2011) Since neither the Supreme Court nor the Tenth Circuit has ever invalidated this condition (or any similar condition) on vagueness grounds, the panel rejected this challenge under the plain-error standard. U.S. v. Munoz, __ F.3d __ (10th Cir. Feb. 9, 2016) No. 15-2048.
10th Circuit says requiring truthful answers to probation officer did not violate 5th Amendment. (580) Defendant pled guilty to drug charges. He challenged a condition of supervised release requiring him to “answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer.” Defendant argued that this condition compromised his 5th Amendment right against self-incrimination, but the Tenth Circuit disagreed. This condition did not prevent defendant from asserting a Fifth Amendment privilege. U.S. v. Munoz, __ F.3d __ (10th Cir. Feb. 9, 2016) No. 15-2048.
10th Circuit upholds condition requiring defendant to meet family responsibilities. (580) Defendant pled guilty to drug charges. The district court imposed a condition of supervised release requiring defendant to “support his or her dependents and meet other family responsibilities.” Defendant challenged the condition as vague. The Tenth Circuit upheld the condition. Although the terms “dependent” and “support” might involve ambiguity in particular circumstances, the court could reasonably assume that defendant would understand what was required. The panel rejected defendant’s contention that his supervised release could be unjustly revoked if he failed to provide the required support, even if he tried in good faith to provide that support. The condition was naturally understood to require only financial support that defendant was able to provide. U.S. v. Munoz, __ F.3d __ (10th Cir. Feb. 9, 2016) No. 15-2048.
10th Circuit upholds condition requiring defendant to work regularly at a lawful occupation. (580) Defendant pled guilty to drug charges. The district court imposed a condition of supervised release requiring defendant to “work regularly at a lawful occupation, unless excused by the probation officer for schooling, training, or other acceptable reasons.” The Tenth Circuit upheld the condition, rejecting defendant’s claim that this condition imposed strict liability because he would be in violation if he was unable to find a job or was fired. Defendant’s interpretation was literal, requiring him to do something that might not be within his control. The court could reasonably interpret the condition differently. The district court had the discretion to require employment even though defendant might not be hired or might be fired. U.S. v. Munoz, __ F.3d __ (10th Cir. Feb. 9, 2016) No. 15-2048.
10th Circuit upholds condition requiring notice to probation before changing residence or employment. (580) Defendant pled guilty to drug charges. The Tenth Circuit upheld a condition of supervised release requiring defendant to “notify the probation officer at least ten days prior to any change in residence or employment.” The condition did not require the impossible of defendant. The most sensible understanding of this condition was that defendant must give notice of an event only if he foresees it. U.S. v. Munoz, __ F.3d __ (10th Cir. Feb. 9, 2016) No. 15-2048.
10th Circuit upholds condition barring associating with felons or persons engaged in criminal activity. (580) Defendant challenged on appeal a condition of supervised release barring him from associating with any convicted felon or any persons engaged in criminal activity. He argued that the condition infringed on his rights to associate with family members and with other convicts. The Tenth Circuit disagreed. A condition of supervised release can sometimes violate the right of familial association, but only when the condition would actually restrict association with a family member. Defendant did not allege that he had any family members with felony convictions. If defendant does interact with a convicted felon, he would not necessarily run afoul of this condition, for associational conditions do not restrict casual or chance meetings. U.S. v. Munoz, __ F.3d __ (10th Cir. Feb. 9, 2016) No. 15-2048.
10th Circuit upholds allowing probation officer to visit anytime and seize contraband in plain sight. (580) Defendant pled guilty to drug charges. The Tenth Circuit upheld a condition of supervised release requiring defendant to “permit a probation officer to visit him or her at any time at home or elsewhere and shall permit confiscation of any contraband observed in plain view of the probation officer.” The court agreed that the condition could be interpreted to allow the probation officer to visit anywhere at any time, but found that this interpretation did not make the condition too harsh. Moreover, the condition did not prevent defendant from challenging the confiscation of property on due process ground. Defendant could challenge the confiscation, but he must first allow the probation officer to confiscate contraband observed in plain view. The court acted within its discretion. U.S. v. Munoz, __ F.3d __ (10th Cir. Feb. 9, 2016) No. 15-2048.
10th Circuit upholds requiring defendant to notify probation within 72 hours of arrest or questioning. (580) Defendant pled guilty to drug charges. The Tenth Circuit upheld a condition of supervised release requiring defendant to notify his probation officer within 72 hours of being arrested or questioned by a law enforcement officer. This condition is recommended in the guidelines as a “basic administrative requirement.” Defendant argued that circumstances might prevent him from complying. However, a common-sense interpretation would prevent revocation if defendant were unable to notify the probation officer. U.S. v. Munoz, __ F.3d __ (10th Cir. Feb. 9, 2016) No. 15-2048.
10th Circuit upholds bar on frequenting places where drugs are sold, used, distributed, or administered. (580) Defendant pled guilty to drug charges. The Tenth Circuit upheld a condition of supervised release barring him from frequenting places where controlled substances were illegally sold, used, distributed, or administered. The panel rejected defendant’s suggestion that the condition, as written, was overbroad because it created strict liability. The most reasonable interpretation of the condition was that it prohibited defendant from going to places only if he knows that drugs are used or sold there. As a result, the district court acted within its discretion in imposing this condition. U.S. v. Munoz, __ F.3d __ (10th Cir. Feb. 9, 2016) No. 15-2048.
7th Circuit upholds condition of supervised release authorizing warrantless searches of drug offender. (580) After completing a term of imprisonment for violating several conditions of supervised release, defendant moved to rescind a special condition authorizing warrantless searches of his person and residence. He insisted that a warrantless search condition was appropriate only for defendants convicted of sex offenses against minors, not drug crimes. The district court upheld the condition. The Seventh Circuit held that 18 U.S.C. §3583(e)(2) permits a defendant to request relief from a condition of supervised release on the ground that the condition is substantively unlawful or no longer serves the purposes of supervised release. However, the warrantless search condition here was reasonable. Defendant objected to participating in drug treatment, yet he had used drugs while on supervised release. Given defendant’s background, the search condition was reasonably related to the goal of discouraging his drug use. U.S. v. Neal, __ F.3d __ (7th Cir. Jan. 21, 2016) No. 14-3473.
7th Circuit upholds condition of release barring interactions with convicted felons. (580) In U.S. v. Thompson, 777 F.3d 368 (7th Cir. 2015), the court found a condition of release vague that barred “associat[ing] with any person convicted of a felony, unless granted permission” by the probation officer. Thompson suggested instead telling a defendant that he may not “meet, communicate, or otherwise interact with a person whom he knows to be engaged, or planning to be engaged, in criminal activity.” The Seventh Circuit found that the condition here restricting defendants’ contact with felons met Thompson’s requirements. The condition provided that defendants could not “knowingly meet, communicate, or otherwise interact with any person whom he knows to be a convicted felon or to be engaged in, or planning to engage in, criminal activity, unless granted permission to do so by the probation officer.” This language made the meaning of “association” clear. Further, it required scienter and went beyond Thompson by creating a safety valve for probation-approved interactions with felons and criminals. U.S. v. Speed, __ F.3d __ (7th Cir. Jan. 19, 2016) No. 15-1520.
7th Circuit finds no conflict between oral and written restrictions on alcohol use. (580) At sentencing, the judge directed both defendants to participate in an alcohol treatment program. The judge noted that alcohol-treatment programs would also require defendants to abstain from alcohol. Later, in its written judgment, the court added this language: “You shall refrain from any use of alcohol.” The Seventh Circuit rejected defendants’ claim that the written judgement’s ban on all alcohol consumption was inconsistent with the oral sentence. It is well established that an oral sentence controls if it conflicts with the written judgment. However, there was no conflict between the court’s statements during the hearing and the written judgment’s full ban on drinking alcohol. U.S. v. Speed, __ F.3d __ (7th Cir. Jan. 19, 2016) No. 15-1520.
7th Circuit upholds special condition barring possessing firearm or dangerous weapon. (580) Defendants challenged on appeal a special condition of supervised release barring them from possessing “a firearm, ammunition, destructive device, or other dangerous weapon.” Although defendants argued that they received no notice of this condition, the Seventh Circuit noted that it was an enumerated special condition of release. See §5D1.3(d)(1). Defendants were deemed to have notice of this condition because it was enumerated in the guidelines. The condition was reasonable and the reason for it was obvious. The first defendant pled guilty to being a felon in possession of a firearm, and the second defendant was seen in illegal possession of a pistol. The term “dangerous weapon” was not vague. While dangerous weapon can mean “virtually any object given appropriate circumstances,” how the defendant uses it matters. U.S. v. Speed, __ F.3d __ (7th Cir. Jan. 19, 2016) No. 15-1520.
D.C. Circuit finds court adequately explained halfway house condition of release. (580) At sentencing, the court ordered defendant to “spend six months in a halfway house or transitional housing at the discretion of the probation office if it is available and needed.” The words “and needed” were omitted from the district court’s later-written judgment. Defendant argued that he was required to spend a portion of his supervised release in a halfway house only if “he had no suitable location to reside at when released.” However, the D.C. Circuit found no error. In the written statement of reasons, the district court explained why, in its view, defendant needed the halfway house notwithstanding the availability of alternative accommodations. The court commented that it was concerned with the “speed with which [defendant] gets very angry. And between the time he got out of jail and the time the halfway house became available, his compliance with the terms of his release were such that it made the Court very concerned.” Thus, the court acknowledged defendant’s contention that he should have been excused from the halfway house requirement, and explained why, in keeping with the court’s intended sentence, he would not be excused from it. In re Sealed Case, __ F.3d __ (D.C. Cir. Jan. 8, 2016) No. 14-3058.
7th Circuit reverses multiple standard conditions of supervised release as vague. (580) Defendant was convicted of child pornography counts. On appeal, defendant claimed that the district court erred in imposing ten standard conditions of supervised release without sufficient discussion. The Seventh Circuit ruled that while the administrative conditions of supervised release were procedurally reasonable, other conditions were not. For example, a standard condition requiring defendant to support his dependents and “meet other family responsibilities” was problematic because the meaning of “other family responsibilities” was not apparent. The court also found ambiguities with a requirement that defendant work “regularly at a lawful occupation,” a requirement that he notify the probation office if he changed employment, a ban on “frequenting” places where controlled substances were sold or used, a ban on “associating” with felons, permission for defendant’s probation officer to visit him at any time, and a requirement that defendant to notify third parties of “risks” caused by his “personal history” and “characteristics.” U.S. v. Poulin, __ F.3d __ (7th Cir. Jan. 5, 2016) No. 14-2458.
7th Circuit holds that defendant waived challenge to treatment conditions. (580)(855) Defendant was convicted of multiple child pornography counts. His initial sentence was reversed. At resentencing, the sentence included a ten-year term of supervised release, subject to various standard and special conditions. On appeal, defendant challenged sex offender, substance abuse, and mental health treatment requirements, contending that the court did not consider the “practical effect of the three treatment conditions imposed together.” The Seventh Circuit agreed with the government that defendant waived this challenge. At resentencing, defendant’s counsel stated that he had no objections to the proposed sex offender treatment, mental health treatment, and substance abuse treatment conditions. He did, however, object to the wording of what became the combined substance abuse treatment condition as well as to the condition’s requirement that, if financially able, defendant pay for either alcohol or drug testing. The government correctly noted that these objections were unrelated to defendant’s claim on appeal. Thus, by stating that he had “no objection” to these conditions, whether independently or in combination, defendant waived this argument. U.S. v. Poulin, __ F.3d __ (7th Cir. Jan. 5, 2016) No. 14-2458.
7th Circuit approves ban on contact with minor females for child porn defendant. (580) Defendant was convicted of multiple child pornography counts. On appeal, he argued that the district court abused its discretion by imposing a “no-contact” condition, which barred defendant from having contact with any female under the age of 18 except in certain specified circumstances. He claimed that the district court failed to consider that this condition would prevent him from having contact with his minor stepsister, that he was not diagnosed with pedophilia, and had never acted inappropriately with a child. The Seventh Circuit concluded that the district court did not abuse its discretion by requiring the presence of another adult when defendant had contact with minor females. The court specifically considered the condition’s impact on defendant’s familial relations, the lack of a diagnosis of a pedophilic condition, and the lack of evidence that he had acted out sexually toward a child. Even so, the court concluded it was reasonable to impose the no-contact condition. U.S. v. Poulin, __ F.3d __ (7th Cir. Jan. 5, 2016) No. 14-2458.
8th Circuit upholds ban on possessing object that could be used as weapon designed to conceal its true nature. (580) Before a pretrial hearing, defendant had hidden a knife designed to look like a carabiner in the bushes outside of the federal courthouse before he entered for a pretrial hearing. A jury later convicted defendant of firearms charges, and the district court imposed a condition of supervised release barring defendant from possessing “any object that could be used as a weapon if such an object is designed to conceal its true nature – such as the carabiner knife seized in this case.” Defendant challenged this condition on appeal as vague and overbroad. The Eighth Circuit disagreed, noting that this special condition merely amplified another condition of release, which defendant did not challenge, barring his possession of any “dangerous weapon.” The carabiner knife seized in this case was a dangerous weapon, and any similar object should likewise be encompassed by the term “dangerous weapon.” The special condition went no further than the unchallenged condition. U.S. v. Tumea, __ F.3d __ (8th Cir. Jan. 14, 2016) No. 14-3650.
8th Circuit modifies special condition to allow possession of prohibited items with prior approval. (580) The district court imposed a condition of supervised release barring defendant from possessing “other dangerous items that are designed to be, or easily convert to, a dangerous weapon.” The court was concerned for the safety of probation officers and others visiting defendant’s home, in light of his past possession of dangerous weapons and his prior declarations that he possessed a baseball bat, knife, and machete to protect against law enforcement officers “illegally” entering his residence. Defendant complained that the general language of the condition could encompass “everyday items” he should be permitted to possess for legitimate use, such as golf clubs or a walking cane. The Eighth Circuit ruled that to avoid a “greater deprivation of liberty than is reasonably necessary” the special condition should be modified to allow for the possession of otherwise-prohibited items with prior approval of the probation office. To secure approval, defendant must show that there was a legitimate purpose for possession of the item and that his possession of the item would not present an unreasonable risk to the safety of probation officers or others. U.S. v. Tumea, __ F.3d __ (8th Cir. Jan. 14, 2016) No. 14-3650.
7th Circuit remands to reconsider conditions of supervised release. (580) Defendant was convicted of drug charges, and received a sentence that included a term of supervised release. The Seventh Circuit remanded for reconsideration of the conditions of supervised release, finding three problems. First, the written judgment contained thirteen so-called “standard” conditions of supervised release that the judge did not mention at sentencing. Those conditions had to be stricken because only punishments stated orally, in open court, at sentencing are valid. Second, the judge did not attempt to justify the conditions that he did impose at sentencing, as required by U.S. v. Thompson, 777 F.3d 368, 373 (7th Cir. 2015). Finally, a number of the conditions listed in the written judgment suffered from a variety of infirmities identified in decisions such as Thompson and U.S. v. Kappes, 782 F.3d 828 (7th Cir. 2015), which were decided after defendant had been sentenced. U.S. v. Sanford, __ F.3d __ (7th Cir. Nov. 25, 2015) No. 14-2860.
5th Circuit upholds conditions regarding drug and alcohol use and mental health evaluation. (580) Defendant pled guilty to heroin distribution. He challenged on appeal three conditions of supervised release, regarding alcohol use, use of controlled substances, and the need for two mental evaluations. The Fifth Circuit rejected defendant’s claim that these conditions were too vague. The district court defined “excessive use” of alcohol as “more than four drinks a day,” and a reasonable person should know what constitutes a “drink.” The court’s oral statement to “refrain from excessive use of any narcotics” was, by itself, ambiguous. But the written conditions made it clear that “excessive use” meant any illegal use or any use not prescribed by doctors. As for the mental health condition, the court connected this condition to defendant’s domestic battery conviction, as well as his “escalation” of criminal behavior. Nevertheless, the panel deleted the requirement of a second mental health evaluation listed in the written conditions, because the oral condition unambiguously required only one. U.S. v. Chatman, __ F.3d __ (5th Cir. Nov. 9, 2015) No. 14-2519.
10th Circuit upholds warrantless search condition for non-SORNA defendant. (580)(800) As a condition of supervised release, the court required defendant to submit his person or property to a search by the probation office “based upon reasonable suspicion of contraband or evidence of a violation of condition of release.” Defendant argued 18 U.S.C. §3583(d) prohibited courts from imposing warrantless-search conditions except in cases involving felons required to register under SORNA, the Sex Offender Registration and Notification Act. The Tenth Circuit disagreed. The text of §3583(d) does not limit the possibility of a warrantless-search condition to felons required to register under SORNA. The “any other condition” provision authorizes district courts to impose “any condition set forth as a discretionary condition of probation in section 3563(b) and any other condition it considers to be appropriate” so long as the three limitations of §3583(d)(1)-(3) were met. U.S. v. Flaugher, __ F.3d __ (10th Cir. Nov. 13, 2015) No. 14-3206.
1st Circuit says treating § 922(q) offense as s felony was not plain error. (580) Defendant pled guilty to multiple counts, including possession of a firearm in a school zone, in violation of 18 U.S.C. 922(q). He challenged for the first time on appeal the three-year term of supervised release and $100 monetary assessment, arguing that his § 922(q) offense was a misdemeanor. He noted that 18 U.S.C. § 924(a)(4) provides that, “Except for the authorization of a term of imprisonment of not more than 5 years made in this paragraph, for the purpose of any other law a violation of section 922(q) [possession of a firearm in a school zone] shall be deemed to be a misdemeanor.” Thus, he claimed that the maximum supervised release term under 18 U.S.C. § 3583(b)(3) was one year, and the maximum monetary assessment under 18 U.S.C. § 3013(a)(1)(A)(iii) was $25. The First Circuit found the statutory language was not as clear as defendant contended, because 18 U.S.C. § 3559(a)(4) classifies an offense as a Class D felony “if the maximum term of imprisonment authorized is less than ten years but five or more years.” The circuits are split, with some following defendant’s reading, while others have at least implicitly understood a § 922(q) violation to be a Class D felony. The statute’s imprecise language and the fact that other courts have fallen prey to the same error, if there was error, meant that any misconstruction by the district court was not plain error. U.S. v. Alvira-Sanchez, 804 F.3d 488 (1st Cir. 2015).
7th Circuit orders full resentencing for misstating terms of supervised release. (580) Defendant was convicted of fraud charges. Her sentence included “one year of mandatory supervised release.” The Seventh Circuit found that the judge’s entire discussion of the conditions of supervised release that she was imposing contained a number of problematic statements. First, discussion stated that supervised release was mandatory, which it was not. The rest of the discussion had numerous ambiguities. Moreover, the written judgment imposed 13 conditions of supervised release that the judge did not mention at the sentencing hearing. That was a mistake; the oral sentence is controlling. Because prison and supervised release could be “substitutes as well as complements,” the court ordered a full resentencing. U.S. v. Harper, __ F.3d __ (7th Cir. Nov. 6, 2015) No. 14-2701.
7th Circuit reverses for lack of reasons for conditions or length of supervised release. (580) Defendant pled guilty to heroin distribution, and was sentenced to 108 months in prison. In addition, the district court imposed three years of supervised release without considering the § 3553(a) sentencing factors. The government conceded that defendant’s case had to be remanded for a new sentencing hearing on the conditions for supervised release. The Seventh Circuit agreed. The district court made no statement of reasons justifying the non-mandatory conditions of supervised release or the length of the term of supervised release. U.S. v. Garcia, 804 F.3d 904 (7th Cir. 2015).
7th Circuit affirms conditions of supervised release for defendant sentenced to life plus 85 years. (580) Defendant was sentenced to life plus 85 years for raping an infant and related child pornography offenses. On top of this, the judge imposed lifetime supervised-release conditions for each count, including several conditions that defendant challenged for the first time on appeal. The Seventh Circuit ruled that defendant failed to show that his substantive rights, the criminal proceeding’s fairness or integrity, or the proceeding’s public reputation would suffer. He was serving a life sentence; he would not be subject to his conditions of release. Further, when a defendant is released and must comply with supervised-release conditions, district courts can readily modify these conditions at the defendant’s request. The panel declined to remand defendant’s conditions of supervised release for resentencing. U.S. v. Bour, __ F.3d __ (7th Cir. Oct. 27, 2015) No. 14-2211.
9th Circuit upholds supervised release condition allowing search of computers. (580) Defendant was convicted of being a felon in possession of a firearm. Defendant ran a business in which individuals could pawn firearms, and he used a computer to keep records of the pawn business. At sentencing for being a felon in possession, the district court imposed a condition of supervised release that allowed a probation officer to search a computer that defendant was using. The Ninth Circuit held that as long as the district court makes a factual finding establishing some nexus between computer use and a goal of sentencing, the district court does not abuse its discretion. Here, the court found that imposing a computer search condition of supervised release was “amply supported by the record.” U.S. v. Bare, __ F.3d __ (9th Cir. Nov. 24, 2015) No. 14-10475.
D.C. Circuit holds that government waived appeal waiver. (580)(850) Defendant pled guilty to firearms and other charges pursuant to a plea agreement that contained a waiver of appeal. The oral sentence did not order defendant to register as a sex offender as a condition of his supervised release, but the written judgment added this condition. On appeal, the government agreed that the district court erred in checking the “sex offender” box on the pre-printed judgment form. The D.C. Circuit remanded with instructions to conform the written judgement to the oral sentence. Waiver of appellate rights is not a jurisdictional issue. By declining to raise the argument on appeal, the government waived the appeal waiver’s bar against appellate review. U.S. v. Ortega-Hernandez, __ F.3d __ (7th Cir. Oct. 26, 2015) No. 15-1604.
7th Circuit upholds condition of supervised release barring defendant from “places” where drugs are sold or used. (580) Defendant argued that a condition of supervised release barring him from “knowingly be[ing] present at places where controlled substances are illegally sold, used, distributed, or administered” was vague and overbroad. He contended that the word “places” was problematic because marijuana use is legal in Illinois but illegal under federal law, creating “a conundrum.” The Seventh Circuit disagreed. The word “place” has a generally understood meaning – a building or area – such that a person of reasonable intelligence would understand what was prohibited by this condition. U.S. v. Armour, __ F.3d __ (7th Cir. Oct. 26, 2015) No. 15-1604.
7th Circuit upholds requiring defendant to report to probation officer as directed. (580) Defendant challenged a condition of supervised release that required him to “report to the probation officer in a manner and frequency as directed by the Court or Probation.” Defendant argued that this posed a risk of inconsistent law enforcement since he could be required to do as little as call the probation officer semi-annually, or he could be subject to more rigorous requirements, such as appearing in person twice a day. The Seventh Circuit found that defendant’s speculative concern was not supported by any evidence. Additionally, this condition was justified by 18 U.S.C. § 3603(2)’s requirement that a probation officer remain informed of the conduct and condition of a person under supervision. Further, the condition was consistent with the policy goal of rehabilitation. U.S. v. Armour, __ F.3d __ (7th Cir. Oct. 26, 2015) No. 15-1604.
7th Circuit upholds ban on possession of dangerous weapons. (580) As a condition of supervised release, the district court prohibited defendant from possessing a “firearm, ammunition, destructive device or any other dangerous weapon.” Defendant challenged this ban as unconstitutionally vague and overbroad. Since a person of reasonable intelligence would have sufficient notice as to the conduct prohibited – not possessing dangerous weapons – the Seventh Circuit ruled that this condition was not unconstitutionally vague. U.S. v. Armour, __ F.3d __ (7th Cir. Oct. 26, 2015) No. 15-1604.
7th Circuit requires defendant to notify probation of changes in residence or employment. (580) As a condition of supervised release, the district court required defendant to notify probation “at least ten days prior to or as soon as you know about any changes in residence and any time you leave a job or accept a job.” The Seventh Circuit upheld the condition, rejecting defendant’s claim that it was vague and unnecessary. The case was distinguishable from U.S. v. Kappes, 782 F.3d 828 (7th Cir. 2015) which found that the condition that defendant notify his probation officer of any “change in … employment” was overly vague because it failed to indicate “whether change in employment just means changing employers or also includes changing from one position to another for the same employer at the same workplace.” This could be distinguished from the reporting condition here, which made clear that it applied when defendant relocated to a new residence or left or accepted a job. U.S. v. Armour, __ F.3d __ (7th Cir. Oct. 26, 2015) No. 15-1604.
7th Circuit upholds ban on associating with known felons. (580) As a condition of supervised release, the district court barred defendant from meeting, communicating or otherwise interacting with any known felon. Defendant argued that banning interactions with a convicted felon served no valid purpose, but the Seventh Circuit disagreed. The district court stated that the purpose of this condition was to limit defendant’s exposure to triggers of negative behavior. Further, this condition included a knowledge requirement, which distinguished it from similar conditions found to be fatally vague. The condition was not an abuse of discretion, especially given defendant’s “long history of abusing drugs and breaking the law, and despite numerous incarcerations, continued negative behavior.” U.S. v. Armour, __ F.3d __ (7th Cir. Oct. 26, 2015) No. 15-1604.
7th Circuit approves requiring defendant to allow probation officer to visit him. (580) As a condition of supervised release, the district court ordered that defendant “permit a probation officer to visit [him] at home or any other reasonable location between the hours of 6:00 AM and 11:00 PM, unless investigating a violation or in case of emergency.” Defendant argued that allowing a probation officer to search his property without a valid warrant was an infringement on his Fourth Amendment rights. The Seventh Circuit disagreed. “A court may impose conditions of supervised release which implicate fundamental rights so long as those conditions are reasonably related to the ends of rehabilitation and protection of the public from recidivism.” This condition here was reasonably related to rehabilitation and protecting the public from recidivism since it would allow probation officers to help defendant reintegrate into society after his time in prison and ensure that he was abiding by the conditions of his supervised release. The term “other reasonable location” did not improperly subject him to searches at a church, hospital, or funeral home since under most circumstances, those visits would be unreasonable and thus barred by the condition itself. U.S. v. Armour, __ F.3d __ (7th Cir. Oct. 26, 2015) No. 15-1604.
7th Circuit requires defendant to notify probation of arrest or questioning by police. (580) As a condition of supervised release, the district court required defendant to “notify Probation within 72 hours of being arrested or questioned by law enforcement.” Defendant argued that this condition violated his Fifth Amendment rights. The Seventh Circuit disagreed. In U.S. v. Kappes, 782 F.3d 828 (7th Cir. 2015), the defendant made this same argument in contesting an identical condition of supervised release. The court said it did not see “how the mere fact of an arrest or law enforcement contact is itself incriminating” and that “this condition assists the probation officer in monitoring the defendant’s conduct and compliance with the other conditions of release, most notably, the mandatory condition that the defendant commit no other criminal offenses.” The district court did not abuse its discretion in imposing the condition here. U.S. v. Armour, __ F.3d __ (7th Cir. Oct. 26, 2015) No. 15-1604.
7th Circuit says failure to explain term in written judgment did not invalidate condition. (580) Defendant’s supervised release included the condition that he “not purchase, possess, use, distribute, or administer any controlled substance or psychoactive substance.” Defendant complained that the district court gave a lengthy oral explanation of the term “psychoactive” at the revocation hearing but that the explanation was not included in the written judgment. The Seventh Circuit found no error. Sentencing judges are simply required to “orally pronounce all conditions, with the written judgment only clarifying the oral pronouncement in a manner that is not inconsistent with an unambiguous oral provision.” Thus, if a dispute were to arise, there was no question that the oral explanation would control, and the district court did not abuse its discretion. U.S. v. Armour, __ F.3d __ (7th Cir. Oct. 26, 2015) No. 15-1604.
11th Circuit holds that defendant invited any error in term of supervised release. (580) Defendant pled guilty to one count of possession of child pornography. He argued on appeal that the district court automatically sentenced him to lifetime supervision without any consideration of the circumstances of his case, and that a life term was not warranted without some showing that he had abused children. The Eleventh Circuit noted that defendant expressly requested that the district court sentence him to a life term of supervised release, and thereby invited any error the court may have made in doing so. It was “a cardinal rule of appellate review that a party may not challenge as error a ruling or other trial proceeding invited by that party.” Although defendant claimed that he only agreed to lifetime supervision to encourage the court to grant his requested downward variance, that argument did not square with what his attorney actually said at sentencing. Counsel argued for a life term of supervised release in its own right, and never said the life term was only appropriate if the court decided to give defendant a downward variance. U.S. v. Carpenter, __ F.3d __ (11th Cir. Oct. 7, 2015) No. 14-13177.
11th Circuit upholds special conditions barring possession of computer or adult pornography. (580) Defendant pled guilty to one count of possession of child pornography. He challenged for the first time on appeal two special conditions of supervised release: that he not possess or use a computer, except in connection with employment as approved by the district court, and that he not possess sexually explicit material involving adults. The Eleventh Circuit found no plain error. The PSR expressly recommended the conditions barring defendant from possessing a computer or pornography, but defendant made no objection. Defendant did not discuss either condition in his sentencing memo in advance of the hearing, and at the hearing, neither he nor his counsel said a word about the conditions. The court did not err in imposing the challenged conditions. Defendant’s crime was a sex offense involving the use of a computer, so the guidelines expressly recommended a condition limiting his computer access. See § 5D1.3(d)(7)(B) and Note 1 to § 5D1.2. As for the other condition, defendant did not cite to any binding authority holding that a restriction on possession all forms of pornography was substantively unreasonable. Cases from sister circuits invalidating bars on adult pornography were distinguishable. U.S. v. Carpenter, __ F.3d __ (11th Cir. Oct. 7, 2015) No. 14-13177.
5th Circuit affirms restriction on sex offender’s location near minors. (580) Defendant pled guilty to failing to register or update his registration as a sex offender. The district court sentenced him to 15 months’ imprisonment and a life term of supervised release. For the first time on appeal, defendant challenged a special condition of supervised release that barred him from residing or going to places where a minor or minors were known to frequent without prior approval of the probation officer. The Fifth Circuit held that the geography restriction did not constitute plain error. The geographic restriction was identical to the one upheld in U.S. v. Fields, 777 F.3d 799 (5th Cir. 2015). Like the defendant in Fields, defendant had molested children in the past, and his failure to register suggested a need for deterrence and protection of the public. U.S. v. Prieto, __ F.3d __ (5th Cir. Sept. 16, 2015) No. 14-50653.
5th Circuit says pornography restriction was plain error, but declines to correct it. (580) Defendant pled guilty to failing to register or update his registration as a sex offender. The district court sentenced him to 15 months’ imprisonment and a life term of supervised release. For the first time on appeal, defendant challenged a special condition of supervised release that barred him from purchasing, possessing, or using any sexually stimulating or sexually oriented materials. The Fifth Circuit found that the pornography restriction constituted plain error, but declined to exercise its discretion to remedy it. As in U.S. v. Salazar, 743 F.3d 445 (5th Cir. 2014), the district court did not provide any explanation for imposing the pornography ban on defendant, and the reasons were not apparent from the record. Nothing in defendant’s history suggested that “sexually stimulated materials” fueled his past crimes, nor did the record suggest that defendant had ever used pornography. Nonetheless, the panel declined to exercise its discretion to correct the error in this case. Defendant failed to persuade the court that the error resulted in a serious injustice. U.S. v. Prieto, __ F.3d __ (5th Cir. Sept. 16, 2015) No. 14-50653.
9th Circuit allows court to change sentence within same proceeding. (115)(580)(750) Defendant faced a two-year statutory maximum for a supervised release violation, but Probation and the government recommended a one-year sentence. At sentencing, the court initially imposed a one-year sentence but said it was “way too low.” After observing defendant laughing, the court said that defendant had “talked himself into more time” and imposed a two-year sentence. The Ninth Circuit upheld the sentence, finding that the district court had not lost jurisdiction once it imposed the one-year sentence. The court of appeals held that as long as there was no formal break in the proceedings, the district court was free to change the sentence that it had already orally imposed. The court also rejected the argument that Federal Rule of Criminal Procedure 35(a) and (c), which define “sentencing “ as “the oral pronouncement of sentence, “ barred the district court from imposing a new sentence in the same proceeding after it had orally pronounced sentence. U.S. v. Ochoa, __ F.3d __ (9th Cir. Oct. 22, 2015) No. 14-10124.
6th Circuit upholds special condition barring defendant from possessing camera or video device. (580) An FBI agent downloaded multiple files containing child pornography from defendant’s computer. Defendant pled guilty to distributing child pornography over the Internet. The district court imposed a special condition of supervised release that barred defendant from owning or possessing any type of camera, including video recording equipment, without the written approval of the probation officer. Defendant argued that the condition was “overly broad” and there was no evidence that he used cameras or photographic devices in the commission of his offenses. The Sixth Circuit upheld the special condition. Defendant possessed more than 600 images of child pornography, he had been convicted earlier for an offense involving a minor, and he admitted that he continued to view child pornography and to have sex with minors despite his earlier conviction. It was not unreasonable for the district court to conclude that a probation officer’s supervision might be necessary to protect the public and deter defendant from collecting new images for himself. U.S. v. Cover, __ F.3d __ (6th Cir. Sept. 1, 2015) No. 14-3641.
7th Circuit reverses discretionary conditions of supervised release imposed without explanation. (580) Defendant Falor was convicted of tax evasion and sentenced to 74 months’ imprisonment and 3 years of supervised release. In an unrelated case, defendant Jines was convicted of drug charges, and sentenced to 96 months’ imprisonment and 5 years of supervised release. The Seventh Circuit consolidated the appeals because they raised similar challenges to conditions of supervised release. In light of its recent decisions in U.S. v. Kappes, 782 F.3d 828 (7th Cir. 2015) and U.S. v. Thompson, 777 F.3d 368 (7th Cir. 2015), the Seventh Circuit reversed the judgments and remanded each case for resentencing. Thompson held that, in imposing discretionary conditions of supervised release, a sentencing court must consider the factors in 18 U.S.C. §§3553(a) and 3583(d) and state its reasons for selecting particular conditions. The government submitted position papers, agreeing that the district court committed procedural error in imposing conditions of supervised release without making findings that those conditions were supported by the §3553(a) factors. The error was not harmless. U.S. v. Falor, __ F.3d __ (7th Cir. Sept. 1, 2015) No. 14-1369.
7th Circuit remands to consider effect of Fair Sentencing Act on term of supervised release. (250)(580) Defendant pled guilty to crack cocaine charges. The Fair Sentencing Act reduced defendant’s maximum penalty to 20 years, a Class C felony. Because the Act reclassified his offenses from Class B felonies to Class C felonies, the term of supervised release recommended by the guidelines also dropped to three years (from a range of four to five years). See U.S.S.G. §5D1.2(a)(2). The judge imposed a four-year term of supervised release. The parties agreed that although the judge had been alerted that the Fair Sentencing Act had reduced the minimum term of supervised release, he was probably unaware that the range recommended by the guidelines also had been reduced. The Seventh Circuit found that a remand was appropriate, limited only to this issue. U.S. v. Rollins, __ F.3d __ (7th Cir. Sept. 1, 2015) No. 13-1731.
6th Circuit affirms special condition banning alcohol and other substances despite lack of reasons. (580) Defendant was convicted of drug offenses. He challenged for the first time on appeal a special condition of supervised release that banned his use of alcohol and other substances. The Sixth Circuit held that the court ‘s failure to explain its reasons for the special condition was harmless error. The rationale for the special conditions, including a ban on alcohol, was obvious. Requiring defendant to remain sober and abstain from addictive and mind-altering sub-stances was reasonably related to his history of drug abuse, the nature of his offense, and the goals of rehabilitation and protection of the public. Although the district court erred by failing to explain in open court its rationale for imposing the special condition, the error was harmless because the reasons for its imposition were clear from the record. U.S. v. Collins, __ F.3d __ (6th Cir. Aug. 24, 2015) No. 13-6617.
7th Circuit commends court for employing the “best practice” for conditions of supervised release. (580) Defendant was convicted of failing to register as a sex offender. The Seventh Circuit affirmed the special conditions of supervised release. commending the district judge for using the “best practice” recommended by U.S. v. Kappes, 782 F.3d 828 (7th Cir. 2015). The court gave the litigants advance notice of the proposed conditions. It then ordered a supplemental PSR setting forth the proposed conditions and the rationale for each one, and it solicited additional memoranda from defendant and the government. It then held a second hearing specifically on the proposed conditions. These steps allowed for a full and fair airing of the issues. U.S. v. Jones, __ F.3d __ (7th Cir. Aug. 19, 2015) No. 14-2787.
7th Circuit upholds special conditions of release even though defendant ‘s prior sex offense was 26 years ago. (580) Defendant was convicted of failing to register as a sex offender. He challenged several special conditions of supervised release that required participation in a mental health or sex offender treatment program, a limit on contact with minors, and government monitoring of his daily activities. The Seventh Circuit upheld the conditions, finding they were warranted by defendant ‘s history and characteristics. Although defendant ‘s underlying sex offense occurred over 26 years ago, the court had sufficient reasons to conclude that defendant still posed a danger. His prior sex offense was severe, and indicated deep-seated problems that were unlikely to vanish with time. Defendant refused to participate in a required treatment program after leaving prison in 1994, and continued to deny that he had a problem nearly a decade after the offenses. Moreover, after his release from prison, he had numerous other convictions that involved violence. Finally, defendant’s sudden failure to register after years of mostly compliance raised a red flag. U.S. v. Jones, __ F.3d __ (7th Cir. Aug. 19, 2015) No. 14-2787.
10th Circuit holds that defendant forfeited challenge to occupational restriction. (580) Defendant, the operator of a guide service, was convicted of violating the Lacey Act in connection with illegal tactics he used attract elk and deer for his hunter clients. The district court ordered conditions of supervised release that restricted defendant ‘s (1) occupation (work as a hunting guide and an outfitter) and (2) hunting and fishing for pleasure. The Tenth Circuit held that defendant forfeited his challenges to the occupational restriction, and the district court had the discretion to impose the restrictions on hunting and fishing for pleasure. Defendant challenged the occupational restriction based on the lack of specific findings and the content. However, he failed to specifically object in district court to any aspect of the occupational restriction. Defendant ‘s objection to the PSR was not specific enough to preserve a challenge to the occupational restriction ‘s content. Defendant mentioned a hardship from a prohibition on accompanying other hunters, but quickly explained that his concern involved “his only pleasure” in life: hunting and fishing. In light of defendant ‘s forfeiture, the panel would ordinarily apply the plain-error standard of review. However, because defendant did not argue plain error on appeal, the panel declined to entertain the challenge. The district court had the discretion to restrict hunting and fishing for pleasure. U.S. v. Rodebaugh, __ F.3d __ (10th Cir. Aug. 25, 2015) No. 13-1081.
1st Circuit remands to clarify that supervised release condition did not prohibit access to internet. (580) The district court imposed a special condition of supervised release designed to ensure the efficacy of electronic monitoring: it required the defendant to maintain a “clean” telephone line, without a modem, in his home. Defendant argued that this condition failed to make clear that the condition did not prohibit him from accessing the internet. The First Circuit found no error, but nonetheless directed the court to clarify that there was no prohibition on defendant’s access to the internet. Such a condition normally should not be construed to bar internet access. In reviewing a substantially similar supervised release condition in an earlier case, the court explained that such a condition “affirmatively commands one particular action (i.e., the maintenance of a certain type of phone line), but does not expressly prohibit any other, including that of accessing the internet from home.” U.S. v. Rivera–López, 736 F.3d 633 (1st Cir. 2013). However, the court erred by not making this explicit. On remand, the district court should correct the judgment to clarify that there was no prohibition on defendant’s access to the internet. U.S. v. Diaz-Arroyo, __ F.3d __ (1st Cir. Aug. 12, 2015) No. 14-1929.
6th Circuit upholds ordering defendant to pay unpaid taxes as condition of supervised release. (580)(610) Defendant, the former mayor of Detroit, was convicted of bribery, extortion, fraud, RICO conspiracy, and tax evasion. On appeal, he argued that court erred in ordering him to pay $195,403.61 as restitution to the IRS for unpaid taxes. The federal restitution statutes do not authorize restitution for tax crimes under Title 26. Nonetheless, the Sixth Circuit held that the district court properly ordered restitution to the IRS as a condition of supervised release. The law gives courts wide discretion in ordering restitution as a condition of supervised release. The supervised release statute, 18 U.S.C. § 3583(d), together with the probation statute, 18 U.S.C. § 3563, “unambiguously authorize[] federal courts to order restitution as a condition of supervised release for any criminal offense, including one under Title 26, for which supervised release is properly imposed.” U.S. v. Kilpatrick, __ F.3d __ (6th Cir. Aug. 14, 2015) No. 13-2500.
7th Circuit remands to clarify bar against “association” with gang members. (580) Defendant was convicted of conspiring to distribute crack cocaine. He challenged on appeal a special condition of supervised release that barred him from associating with any member of any street gang or wearing or carrying any sign, symbol or paraphernalia associated with gang activity. The Seventh Circuit found the condition consistent with the sentencing factors in § 3553(a). However, the panel vacated the condition under U.S. v. Thompson, 777 F.3d 368 (7th Cir. 2015), which found a similar condition “fatally vague” because it failed to include a scienter requirement. Thompson also questioned the clarity of the term “association.” Although the district court required an intent element for wearing gang-related colors, it offered no such requirement for the association component of the condition. The panel was unsure, then, whether an accidental or chance meeting with a street-gang member would violate this condition. On remand, clarification must be provided to determine what “association” meant. U.S. v. Purham, __ F.3d __ (7th Cir. Aug. 5, 2015) No. 14-3424.
7th Circuit vacates community service requirement that did not limit amount of required service. (580) Defendant was convicted of conspiring to distribute crack cocaine. He challenged on appeal a special condition of supervised release that required him, if unemployed after 60 days, to perform at least 20 hours of community service per week. The Seventh Circuit found the condition linked to a job-training requirement, and thus consistent with the factors in § 3553(a). However, the court vacated the condition under U.S. v. Thompson, 777 F.3d 368 (7th Cir. 2015). Thompson involved the same condition, and the panel vacated it because (a) the district court set no limit on the amount of community service that the defendant could be ordered to do, and (b) the district court did not mention the application note to § 5F1.3, which proscribes community service in excess of 400 hours. Because these deficiencies were also present here, Thompson required the condition be vacated. U.S. v. Purham, __ F.3d __ (7th Cir. Aug. 5, 2015) No. 14-3424.
10th Circuit affirms sex offender conditions of release despite court’s failure to justify them. (580) Defendant pled guilty to possessing and distributing child pornography. He argued for the first time on appeal that all of the special sex offender conditions imposed on his supervised release should be vacated because the district court failed to provide any reasons for imposing them. The Tenth Circuit agreed that the district court erred by failing to justify the special conditions, but found that the error did not warrant vacating the conditions. Under plain error review, the panel will only vacate the special conditions if the record reveals no basis for them. Here, the challenged conditions restricted defendant’s access to children and required monitoring of his online activities. Given the nature and scope of the conduct underlying the offense, defendant’s history, and the results of his psychological evaluation, the record supported the district court’s imposition of the conditions. Defendant failed to show the error affected either his substantial rights or the reputation or fairness of the proceeding. U.S. v. Barela, __ F.3d __ (10th Cir. Aug. 18, 2015) No. 14-2103.
10th Circuit says ban on viewing sexually explicit material not “clear or obvious” error. (580) Defendant pled guilty to possessing and distributing child pornography. He challenged for the first time on appeal a special condition of supervised release that prohibited him from viewing or possessing any sexually explicit material. The Tenth Circuit upheld the condition, since defendant did not demonstrate any “clear or obvious” error in prohibiting him from viewing or possessing any materials depicting or describing “sexually explicit conduct or pornography.” See U.S. v. Mike, 632 F.3d 686 (10th Cir. 2011) (applying plain error review to similar arguments against a similar condition and concluding error was neither clear nor obvious). Moreover, given defendant’s circumstances – i.e., his convictions for distributing and possessing child pornography and his history of voracious pornography viewing – the cases he cited were distinguishable and did not show that the error here was clear or obvious. U.S. v. Barela, __ F.3d __ (10th Cir. Aug. 18, 2015) No. 14-2103.
8th Circuit vacates anger management counseling condition of release. (580) Defendant pled guilty to killing a bald eagle and a rough-legged hawk. As a condition of defendant’s supervised release, the district court ordered that defendant participate in anger management counseling. The Eighth Circuit reversed, finding insufficient evidence to support the condition. The PSR failed to show a factual or evidentiary basis for anger-management counseling. Defendant’s participation in assorted behavior-related classes five years ago, without more, failed to show that anger-management counseling was reasonably necessary now, or even appropriate. The record was insufficient to support imposition of the condition. The district court neither heard evidence nor made findings with respect to either the content of the classes or why defendant attended them. U.S. v. Bertucci, __ F.3d __ (8th Cir. July 23, 2015) No. 14-3570.
10th Circuit reverses ban on legal porn for lack of explanation. (580) Defendant violated the terms of his supervised release by failing to return to a residential reentry center. The district court revoked his supervised release, and sentenced him to imprisonment and two years of supervised release. The court imposed several special conditions of supervised release, including: (1) a ban on using or possessing alcohol, (2) a requirement for sex offender treatment, psychosexual evaluation, and polygraph testing; and (3) a prohibition on viewing or possessing any pornography. The Tenth Circuit vacated all three special conditions. The government conceded that the court plainly erred in imposing the first two conditions. As for the third condition, the district court failed to explain how this condition was reasonably related to the statutory factors. Although defendant had previously been convicted of a sex offense against a child, that was not sufficient. Before imposing the special condition, the district court needed to explain why the restriction on legal sexually explicit material was supported by the statutory factors in this case. The district court may have relied on scientific literature or personal experience, but none was cited for the record. U.S. v. Martinez-Torres, __ F.3d __ (10th Cir. July 31, 2015) No. 14-2084.
8th Circuit upholds lifetime term of supervised release for “sexual psychopath. “(580)(741) Defendant pled guilty to failing to register as a sex offender, and was sentenced to imprisonment and a lifetime term of supervised release. In justifying the supervised release term, the district court noted that defendant had raped at least three children ages three and four years old, and was committed to a mental hospital. Defendant needed the lifetime supervised release because he had been “adjudged a psychopath…. He is also deemed [to have a] schizoid personality, sexual deviation, [and] severe alcoholism. “Additionally, hospital staff described defendant’s post-treatment personality as “devious, shifting accountability[,] and manipulative. “The Eighth Circuit held that the lifetime term of supervised release was procedurally and substantively reasonable. Defendant’s sexual psychopathy was not a passing personality quirk, but a deviance that went back to his teenage years. His recovery from his mental diagnoses was at best questionable, since he never completed any mental-health or sex-offender treatment program. The potential dormancy of defendant’s untreated conditions, taken together with his past conduct, provided a sufficient basis for the upward variance. U.S. v. James, __ F.3d __ (8th Cir. July 7, 2015) No. 14-2756.
8th Circuit reverses barring internet access for lack of evidence of defendant’s unlawful use. (580) Defendant pled guilty to failing to register as a sex offender, and was sentenced to 15 months’ imprisonment and a lifetime term of supervised release. The Eighth Circuit vacated a special condition of supervised release that barred defendant from accessing the internet or possessing any device capable of accessing the internet, without permission. There was no evidence in the PSR or any other source in the record that defendant ever used the internet, much less used the internet for unlawful purposes. U.S. v. James, __ F.3d __ (8th Cir. July 7, 2015) No. 14-2756.
8th Circuit requires SORNA defendant to submit to searches of his person and property. (580) Defendant pled guilty to failing to register as a sex offender, and was sentenced to 15 months’ imprisonment and a lifetime term of supervised release. He challenged for the first time on appeal a special condition of supervised release that required him to submit to reasonable searches of his person and his property upon suspicion that he had violated a condition of supervised release. The Eighth Circuit found no plain error. The special condition was expressly allowed by §3583(d) because defendant was an individual required to register under SORNA. U.S. v. James, __ F.3d __ (8th Cir. July 7, 2015) No. 14-2756.
8th Circuit upholds requiring participation in substance abuse treatment and testing. (580) Defendant pled guilty to failing to register as a sex offender. He challenged a special condition of supervised release requiring him to participate in evaluation, treatment, counseling, or testing for substance abuse. The PSR indicated that defendant started drinking at age seven and drank heavily in the past. Also, he was diagnosed with severe alcohol dependency during his stay at a psychiatric hospital. The hospital also found a link between defendant’s alcohol consumption and his predatory personality. Additionally, he regularly used methamphetamine, LSD, and marijuana. Nevertheless, defendant contended that he has not used drugs in over 20 years, and as a result, the special condition was not reasonably related to §3553(a). The Eighth Circuit disagreed. Defendant admitted that his sexual abuse of children was related to alcohol abuse. Given this, the special condition was reasonably related to §3553(a) factors such as protecting the public and providing defendant with needed medical care and correctional treatment. U.S. v. James, __ F.3d __ (8th Cir. July 7, 2015) No. 14-2756.
8th Circuit requires SORNA defendant to participate in mental health or sex offender treatment. (580) Defendant pled guilty to failing to register as a sex offender. He challenged a special condition of supervised release requiring him to participate in a mental-health and/or sex-offender treatment program. Defendant argued that this special condition was not reasonably related to the goals stated in §3553(a) because he had not shown indications of recidivism in over 35 years since 1979. The Eighth Circuit disagreed. First, the facts accepted by the district court included defendant’s sexual deviancy spanning three decades and over ten victims. This history suggested that recidivism remained a substantial risk for him. Also, nearly ten years of defendant’s purported 35 years of good behavior was spent in prison or in a psychiatric hospital. Given defendant’s battle with sexual deviance for the majority of his life and his failure to complete any treatment addressing this issue, the district court did not abuse its discretion. U.S. v. James, __ F.3d __ (8th Cir. July 7, 2015) No. 14-2756.
8th Circuit approves condition of supervised release restricting contact with minors. (580) Defendant pled guilty to failing to register as a sex offender. He challenged a special condition of supervised release precluding him from having contact with minors and restricting him from entering places where minors were known to be present and regularly congregated. The Eighth Circuit found that on defendant’s behavioral history justified the condition. This condition was not based solely on defendant’s 35-year-old sex offense and other alleged acts of sexual deviance committed 20 years ago. Defendant’s mental diagnoses as a sexual psychopath, and his failure to address such a diagnosis, justified measures such as this for the protection of minors. U.S. v. James, __ F.3d __ (8th Cir. July 7, 2015) No. 14-2756.
8th Circuit remands to harmonize oral and written conditions of supervised release. (580) A written special condition of supervised release required defendant to submit to a search of his person or property “based upon reasonable suspicion of a violation of any conditions of release. “The oral pronouncement, however, stated only that defendant must submit to a search “upon a reasonable suspicion of contraband. “The government conceded that the written condition broadened the deprivation of liberty because the reasonableness of the search was expanded to include a violation of any condition of release, as opposed to the more narrow suspicion of contraband. The Eighth Circuit vacated the emphasized language and remanded to the district court to harmonize the written condition with the oral sentence. U.S. v. James, __ F.3d __ (8th Cir. July 7, 2015) No. 14-2756.
8th Circuit vacates polygraph testing not mentioned in oral conditions of supervised release. (580) A written special condition of supervised release required defendant to participate in a mental health and/or sex offender treatment program, as directed by the probation officer, and to abide by all rules, including submission to polygraph testing, to determine if he was in compliance with the conditions of release. The oral condition made no mention of polygraph testing. The Eighth Circuit found that the condition expanded the burden on defendant and therefore had to be vacated. U.S. v. James, __ F.3d __ (8th Cir. July 7, 2015) No. 14-2756.
4th Circuit affirms term of supervised release for deportable alien. (580)(742) Defendant pled guilty to illegal reentry after deportation. The district court imposed a sentence that included three years of supervised release. The Fourth Circuit rejected defendant’s claim that the term of supervised release was procedurally unreasonable. Although supervised release is “ordinarily” discouraged by § 5D1.1(c) for a removable alien, the term “ordinarily” is not mandatory. Where a sentencing court (1) is aware of § 5D1.1(c); (2) considers a defendant’s specific circumstances and the § 3553(a) factors; and (3) determines that additional deterrence is needed, a term of supervised release may be imposed. Here, the district court made repeated references to its desire to deter defendant from illegally entering the country for a fourth time and continuing his pattern of committing criminal acts. The court informed defendant that it would impose a term of supervised release because it thought that he would try to get back into the country again. Under these circumstances, the imposition of supervised release was appropriate. U.S. v. Aplicano-Oyuela, __ F.3d __ (4th Cir. July 7, 2015) No. 14-4244. XE “U.S. v. Aplicano-Oyuela, __ F.3d __ (4th Cir. July 7, 2015) No. 14-4244.”
4th Circuit allows term of supervised release to be based on ease of revocation if violated. (580)(742) Defendant pled guilty to illegal reentry after deportation. The district court imposed a sentence that included three years of supervised release. The court remarked that if defendant violated the conditions of supervised release, the authorities could “get him in jail much faster than if we went through a separate prosecution.” Defendant contended that the court’s premise was flawed, and, as such, constituted substantive error. The Fourth Circuit disagreed. Cf. Morrissey v. Brewer, 408 U.S. 471, 479 (1972) (explaining that a revocation of parole “is often preferred to a new prosecution because of the procedural ease of recommitting the individual on the basis of a lesser showing by the State”). Furthermore, the court’s sentencing rationale was not based on an impermissible factor. The admonition that defendant would be “in jail much faster” was an indication of the court’s intention to provide deterrence and protection for the community. U.S. v. Aplicano-Oyuela, __ F.3d __ (4th Cir. July 7, 2015) No. 14-4244. XE “U.S. v. Aplicano-Oyuela, __ F.3d __ (4th Cir. July 7, 2015) No. 14-4244.”
4th Circuit holds that court adequately explained supervised release. (580) Defendant pled guilty to illegal reentry after deportation, and received a sentence that included three years of supervised release. The Fourth Circuit rejected defendant’s claim, raised for the first time on appeal, that the district court failed to sufficiently explain the nature and consequences of supervised release, as required by Rule 11. During the plea hearing, the district court advised defendant that the maximum possible penalty included supervised release for a period of three years. Defendant indicated that he understood, and acknowledged that he had reviewed the plea letter with his interpreter. The plea letter, signed and dated by defendant, stated that if he violated his supervised release, he “could be returned to custody to serve another period of incarceration and a new term of supervised release.” When questioned by the court late in the plea hearing about whether he understood the proceedings, defendant stated that he understood “everything.” Even if the plea letter did not satisfy the court’s obligations to orally explain the nature of supervised release, defendant did not show that the error affected his substantial rights. U.S. v. Aplicano-Oyuela, __ F.3d __ (4th Cir. July 7, 2015) No. 14-4244. XE “U.S. v. Aplicano-Oyuela, __ F.3d __ (4th Cir. July 7, 2015) No. 14-4244.”
9th Circuit upholds supervised release condition based on statements that defendant was not curable. (310)(580)(770) During defendant’s sentencing on child pornography charges, the district court stated that it “hadn’t heard that this stuff [referring to a desire to see child pornography] is curable.” Based on the nature and quantity of child pornography that defendant possessed, the district court did not believe that defendant could be treated. For those reasons, the district court imposed a lifetime period of supervised release. The Ninth Circuit acknowledged that the district court stated that a desire to possess and distribute child pornography was not curable, but held that the district court never found that defendant would be unable to control his behavior. On that basis, the court of appeals upheld the supervised release condition. U.S. v. Hernandez, __ F.3d __ (9th Cir. Aug. 3, 2015) No. 12-50585. XE “U.S. v. Hernandez, __ F.3d __ (9th Cir. Aug. 3, 2015) No. 12-50585.”
9th Circuit finds condition barring use of uncontrolled substances impermissibly vague. (580) In imposing sentence, the district ordered as a condition of supervised release that defendant “may not knowingly use or possess any substance, controlled or uncontrolled, that [defendant] believe[s] is intended to mimic the effects of any controlled substance.” The district court intended to prevent defendant from using a version of “spice,” which mimics the effect of marijuana. The Ninth Circuit held that this condition was impermissibly vague because it prohibited defendant from using substances such as coffee, chocolate, or sodas with caffeine. U.S. v. Aquino, __ F.3d __ (9th Cir. July 20, 2015) No. 14-10360.
5th Circuit refuses to vacate remaining term of supervised release after defendant was deported. (580) Defendant pled guilty to illegal reentry, and was sentenced to 12 months in prison and three years of supervised release. After filing his appeal, defendant completed his term of imprisonment, was released from custody, and was deported to Mexico. At that point, defense counsel filed an initial brief conceding that defendant’s deportation rendered his appeal moot. He also filed a motion to vacate the sentence or the term of supervised release. The Fifth Circuit dismissed his appeal and denied defendant’s request to vacate his remaining term of supervised release. Defendant’s deportation was foreseen and could not be attributed to happenstance or the unilateral action of the government. The district court imposed the term of supervised release to deter defendant from illegally returning to the United States. Given this, as well as defendant’s failure to object to the imposition of supervised release in the first instance, the panel declined to exercise its equitable discretion to vacate defendant’s term of supervised release. U.S. v. Heredia-Holguin, __ F.3d __ (5th Cir. June 16, 2015) No. 14-10846.
7th Circuit reverses supervised release term for failure to find that it was necessary. (580) Defendant pled guilty to possessing at least 15 unauthorized access devices, and was sentenced to 24 months’ imprisonment and a three-year term of supervised release. He argued that the court erred in imposing a term of supervised release without finding that such a term was necessary. The Seventh Circuit agreed. Before it imposes a term of supervised release, the sentencing court must first make a finding that it is necessary under the circumstances. U.S. v. Thompson, 777 F.3d 368 (7th Cir. 2015). The district court failed to make such a finding here. U.S. v. Moore, __ F.3d __ (7th Cir. June 8, 2015) No. 14-3559.
10th Circuit upholds condition of supervised release allowing probation office to restrict computer use. (580) The district court imposed a condition of supervised release requiring defendant to abide by the policies of the Probation Office’s Computer and Internet Monitoring Program which included “restrictions and/or prohibitions related to: computer and Internet use.” The Tenth Circuit concluded that this language, standing alone, would impermissibly impose a greater deprivation of liberty than reasonably necessary because it suggested the probation office could completely ban a means of communication that has become a necessary component of modern life. No extraordinary circumstances justified such a blanket ban in this case. However, the district court limited the condition in an oral pronouncement, clarifying that it was restricting, rather than prohibiting, defendant’s use of the internet and internet-capable devices. This pronouncement saved the otherwise deficient condition. U.S. v. Ullman, __ F.3d __ (10th Cir. June 9, 2015) No. 14-31485.
5th Circuit rejects lifetime ban on accessing computers capable of internet access. (580) Defendant pled guilty to receiving child pornography. As part of his sentence, the court imposed several special conditions of supervised release, including an unconditional lifetime ban on accessing computers capable of internet access. The Fifth Circuit held that the district court abused its discretion by imposing this restriction. The condition was not narrowly tailored and therefore imposed a greater deprivation than reasonably necessary to prevent recidivism and protect the public. The ubiquity and importance of the internet to the modern world made an unconditional, lifetime ban unreasonable. The ban would completely preclude defendant from meaningfully participating in modern society for the rest of his life. It would prevent him from using a computer for benign purposes such as word processing, or using the internet for innocent purposes such as paying a bill online, taking online classes, or video chatting and emailing with his family in the United Kingdom. U.S. v. Duke, __ F.3d __ (5th Cir. June 5, 2015) No. 14-30559.
5th Circuit rejects lifetime ban barring any contact with minors. (580) Defendant pled guilty to receiving child pornography. As part of his sentence, the court imposed a several special conditions of supervised release, including an unconditional lifetime ban on contact with individuals under the age of 18. The Fifth Circuit held that the district court abused its discretion by imposing this restriction. Although courts have routinely upheld conditions limiting a defendant’s ability to associate with minors, no other court has upheld an absolute, lifetime associational ban in a precedential opinion. The lifetime association ban was unreasonably broad, since it contravened §3583(d)’s requirement that a condition of supervised release be narrowly tailored. The record did not support such a sweeping ban for such an extended duration of time. Defendant did not have any history of direct sexual abuse of a child. Although defendant’s association with children could be limited in some way, without evidence of harmful physical contact, his liberty interest in freely associating with minors should not be so drastically circumscribed for such an extended period of time. U.S. v. Duke, __ F.3d __ (5th Cir. June 5, 2015) No. 14-30559.
7th Circuit rejects several “standard” conditions of supervised release as vague and overbroad. (580) The district court imposed 15 supervised release conditions in one phrase by stating that defendant “shall comply with the 15 standard conditions that have been adopted by this Court.” The court offered no explanation as to the propriety of those conditions, and it conducted no review of the applicable §3553(a) factors. The Seventh Circuit held that several of the conditions were fatally vague under its recent decision in U.S. v. Thompson, 777 F.3d 368 (7th Cir. 2015), including the requirements that defendant support his dependents and meet other family responsibilities, notify the probation officer at least ten days prior to any change of employment, not associate with any persons engaged in criminal activity, and not frequent places where controlled substances were illegally sold, used, distributed, or administered. Several other conditions were too broad to meet statutory requirements. These included the requirement that defendant answer truthfully all inquiries by the probation officer, and permit the probation officer to visit him at any time at home. U.S. v. Sandidge, __ F.3d __ (7th Cir. Apr. 20, 2015) No. 14-1492.
7th Circuit rejects as vague and overbroad condition of release barring use of “mood-altering substance.” (580) The district court imposed several “special” conditions of supervised release, but provided no explanation as to why those conditions were appropriate. Following U.S. v. Thompson, 777 F.3d 368 (7th Cir. 2015), the Seventh Circuit vacated the conditions and remanded. In addition to the absence of explanation, at least one of the conditions also suffered from a fatal degree of vagueness, and potential overbreadth: that defendant “shall not consume … any mood-altering substances.” As held in U.S. v. Siegel, 753 F.3d 705 (7th Cir.2014), a prohibition of mood-altering substances could, by its terms, proscribe everything from chocolate to blueberries, substances “that are not causal factors of recidivist behavior.” The case was remanded to reconsider the scope of the conditions. U.S. v. Sandidge, __ F.3d __ (7th Cir. Apr. 20, 2015) No. 14-1492.
8th Circuit upholds lifetime term of supervised release. (580)(800) In 2001, defendant was convicted of statutory rape, and in 2012, he failed to register as a sex offender. In 2014, two months after his release on the failure to register charges, defendant violated his release conditions, including having unsupervised contact with minors. The court revoked his supervised release and sentenced him to 24 months’ imprisonment and supervision for life. The Eighth Circuit held that the lifetime term of supervised release was substantively reasonable. The guidelines range for supervised release was five years to life. “If the district court imposes a within-Guidelines sentence, this court presumes the sentence is reasonable, and [the defendant] bears the burden to rebut the presumption.” On appeal, defendant made no legal argument rebutting the presumptive reasonableness of lifetime supervision. U.S. v. Phillips, __ F.3d __ (8th Cir. May 5, 2015) No. 14-2118.
8th Circuit rejects ban on all internet access where defendant only possessed adult porn. (580)(800) Two months after defendant’s release from prison after being convicted of failing to register as a sex offender, he violated his release conditions. The court sentenced him to 24 months’ imprisonment and supervision for life. The court ordered, as a condition of supervised release, that defendant not “possess or use … a computer, … or subscribe to or use any Internet service, … without the written approval of the probation office.” The Eighth Circuit reversed and remanded. The record did not indicate that defendant ever possessed child pornography. The court apparently premised the ban on defendant’s possession of adult pornography, and his statutory rape conviction. Because possessing child pornography may not necessarily justify a broad ban on internet access, a court exceeds its discretion under §3583(d) by banning internet access for possessing adult pornography. The prior-approval provision did not save this ban. On remand, lesser restrictions on defendant’s internet access might be consistent with §3583(d). U.S. v. Phillips, __ F.3d __ (8th Cir. May 5, 2015) No. 14-2118.
7th Circuit outlines four sentencing principles for imposing conditions of supervised release. (580)(761) In a consolidated opinion that resolved similar challenges to conditions of supervised release, the Seventh Circuit outlined four general sentencing principles sentencing judges should follow. First, judges should give advance notice of the conditions of release being considered. This principle generally fit into the category of recommended “best practice” rather than a mandatory requirement. Advance notice is only required of supervised release conditions that are not listed in a statute or the guidelines. Second, a sentencing court must justify the conditions and the length of the term at sentencing by an adequate statement of reasons, reasonably related to the applicable §3553(a) factors. All discretionary conditions, whether standard, special or of the judge’s own invention, required findings. Third, sentencing judges should impose conditions of supervised release that are (a) appropriately tailored to the defendant’s offense, personal history and characteristics; (b) involve no greater deprivation of liberty than reasonably necessary to achieve the goals of deterrence, protection of the public, and rehabilitation; and (c) sufficiently specific to place the defendant on notice of what is expected. Fourth, the court should orally pronounce all conditions from the bench, and when there is a conflict between an oral and later written sentence, the oral judgment pronounced from the bench controls. U.S. v. Kappes, __ F.3d __ (7th Cir. Apr. 8, 2015) No. 14-1223.
7th Circuit says request for ten-year term of supervised release was not “principal” argument requiring discussion by judge. (580) Defendant pled guilty to child pornography charges. He contended on appeal that the sentencing judge erred in imposing a 20-year term of supervised release without discussion of his request for a ten-year term. Defendant’s 20-year supervised release term was below the statutory maximum of life, and thus below the term recommended by the Sentencing Commission for a sex offense. See §5D1.2(b)(2). However, even in this situation, defendant was entitled to a discussion of his “principal” arguments. The Seventh Circuit found that defendant’s request for a ten-year term was not one of his “principal” arguments, and thus discussion by the sentencing judge was not required. Defendant’s 21-page sentencing commentary contained only a brief discussion of supervised release, and no mention of the length of defendant’s supervised release term. At sentencing, defense counsel devoted a single sentence to the length of the term of supervised release. The judge did not err by focusing on the topics focused on by defense counsel. U.S. v. Kappes, __ F.3d __ (7th Cir. Apr. 8, 2015) No. 14-1223.
7th Circuit finds standard conditions imposed without explanation were overbroad and ambiguous. (580) Defendant was convicted of child pornography charges. The judge imposed 13 standard conditions of supervised release with no discussion. The Seventh Circuit found that many of these conditions were ambiguous or overbroad. For example, the condition forbidding the defendant from “associat[ing] with any persons engaged in criminal activity” and “associat[ing] with any person convicted of a felony” was fatally vague because it imposed strict liability and did not define “associate.” The panel also found fault with conditions requiring defendant to refrain from “excessive use of alcohol,” “support his or her dependents and meet other family responsibilities,” “notify third parties of risks … [related to] defendant’s criminal record or personal history,” notify his probation officer of any change in employment, not “frequent” places where illegal substances were sold or used, answer truthfully all inquiries by the probation officer, and permit a probation officer to visit his home or office and permit confiscation of contraband. On remand, the court should explain the reasons for each of the standard conditions it imposed, and tailor them to defendant’s circumstances. U.S. v. Kappes, __ F.3d __ (7th Cir. Apr. 8, 2015) No. 14-1223.
7th Circuit vacates ban on “mood-altering substance” imposed without findings. (580) Defendant was convicted of child pornography offenses. He challenged on appeal a special condition of supervised release banning the purchase, possession or use of any “mood altering substance.” The Seventh Circuit vacated the condition. The phrase “mood-altering substance” was not defined nor was its meaning self-evident. A better definition would be “psychoactive substances that impair physical or mental functioning, including street, synthetic, or designer drugs.” Even simply prohibiting “illegal mood-altering substances” would be better. The sentencing judge offered no reasons for imposing the condition, and the record contained no indication defendant had ever used psychoactive substances. Therefore, the lack of findings as to this condition was not harmless. U.S. v. Kappes, __ F.3d __ (7th Cir. Apr. 8, 2015) No. 14-1223.
7th Circuit reverses bans on viewing or receiving legal pornography and viewing Internet. (580) Defendant was convicted of child pornography offenses. He challenged on appeal a special condition of supervised release banning him from receiving or viewing “any material, legal or illegal, that contains pornography,” and forbidding him from “us[ing] the Internet … for the purpose of sexual arousal.” However, adult pornography, unlike child pornography, enjoys First Amendment protection, and so courts must be especially cautious when considering a ban on possessing adult pornography. Previous cases have found that special conditions like these do not survive a vagueness or overbreadth challenge, irrespective of whether plain-error review or abuse-of-discretion review applied. Accordingly, the Seventh Circuit rejected the conditions here. U.S. v. Kappes, __ F.3d __ (7th Cir. Apr. 8, 2015) No. 14-1223.
7th Circuit says issue of plethysmograph testing was not ripe, but upholds computer monitoring condition. (580) Defendant was convicted of child pornography offenses. Several special conditions of supervised release required defendant to participate in “psychiatric services and/or a program of mental health counseling and treatment,” “sex offender treatment,” and probation’s “Computer and Internet Monitoring Program.” He contended that treatment condition included plethysmograph testing, which was a greater than necessary deprivation of his liberty interests. The Seventh Circuit found that to the extent this condition might require defendant to submit to plethysmograph testing, it involved too many contingencies to make the issue ripe for review. As for polygraph testing, a defendant on supervised release retains the privilege to invoke his Fifth Amendment rights. On remand, defendant could request that the judge include language indicating that this condition did not prevent him from invoking the privilege against self-incrimination. The judge made sufficient findings to support the requirement that defendant participate in a computer and internet monitoring program. Defendant’s use of a computer facilitated his offense, and the judge reasonably found that the monitoring program would “ensure compliance” with the other conditions. U.S. v. Kappes, __ F.3d __ (7th Cir. Apr. 8, 2015) No. 14-1223.
7th Circuit reverses prohibition on contact with all minors for lack of evidence defendant was bisexual. (580) Defendant was convicted of child pornography charges, and challenged on appeal a special condition of supervised release prohibiting contact with minors. The Seventh Circuit held that the court adequately explained the condition. The judge found that a lengthy period of supervised release was necessary because, while working as a furniture deliveryman, defendant had stolen “over 30 female panties,” and kept the collection for 20 years. He also surreptitiously photographed children playing in a nearby pool for about ten years. The sentencing judge’s explanation was sufficient to justify imposing an appropriately tailored no-contact condition. However, the no-contact condition actually imposed here was “somewhat overbroad.” The condition prohibited non-incidental “contact” with males as well as females under 18, despite the lack of evidence that defendant was bisexual. Defendant had no children. However, if after he was released from custody in 20 years, he or a family member had any minor children, he could then petition the court to modify the condition. U.S. v. Kappes, __ F.3d __ (7th Cir. Apr. 8, 2015) No. 14-1223.
7th Circuit rules judge adequately explained reasons for no-contact with minors, but condition was overbroad. (580) Defendant’s PSR recommended a special condition of supervised release prohibiting contact with minors. Defendant objected, and the judge revised the condition to prohibit contact with “non-related” minors except in the presence of an adult approved by probation. The judge found the no-contact condition was “especially necessary” because the target age of most of defendant’s child porn was seven- to eight-year-olds and, further defendant made a statement that he “can’t do anything [to minors] when they are not here.” The Seventh Circuit ruled that the court’s explanation was “perhaps the minimum of what might be sufficient to justify a no-contact provision in a possession-only child-pornography case.” However, the condition was overbroad, since it prohibited non-incidental contact with males as well as females under 18, despite the lack of evidence that defendant was bisexual. Moreover, given defendant’s attraction to seven- and eight-year- olds, the restriction on contact with 17-year-olds seemed unsupported. U.S. v. Kappes, __ F.3d __ (7th Cir. Apr. 8, 2015) No. 14-1223.
7th Circuit says search condition of supervised release was not plain error. (580) Defendant was convicted of child pornography charges. He challenged for the first time on appeal a special condition of supervised release that required defendant to “submit to the search of [his] person, automobile, and property” when there was “reasonable suspicion” to believe that he was in violation of a condition of supervised release. The condition also subjected his computers and related devices to “periodic unannounced examinations,” and allowed the probation officer to remove the computer for a more thorough examination. The Seventh Circuit found no plain error. The judge stated that the condition was to “ensure compliance” with the other conditions of release. The condition clearly related to the goals of rehabilitation, deterrence and protection of the public, and was reasonably related to the nature and circumstances of defendant’s computer-facilitated offense. However, on remand, the panel might consider rewording the condition to clarify that the probation officer may only review the computer for a more thorough examination if the officer has reasonable suspicions that defendant was in violation of a condition of supervised release. U.S. v. Kappes, __ F.3d __ (7th Cir. Apr. 8, 2015) No. 14-1223.
1st Circuit declines to enforce waiver of appeal of special conditions that interfered with defendant’s relationship with son. (580)(850) Defendant pled guilty to failing to register as a sex offender. The terms of defendant’s supervised release included a series of special conditions that prohibited him from contact with minors. A waiver of appeal barred defendant’s appeal of most of the special conditions. Nonetheless, he appealed the conditions, arguing that they would interfere with his relationship with his 9-year-old son. To avoid a miscarriage of justice, the First Circuit declined to enforce the waiver as to two conditions that barred defendant from contact with, or residing with minors. These two conditions implicated a fundamental constitutional liberty interest – the relationship between parent and child. The record contained no justification for the conditions that would deprive defendant of any meaningful relationship with his son. However, two other conditions, prohibiting defendant from working with minors and prohibiting him from volunteering with minors, did not present as great an infringement. Thus, the panel enforced the waiver of appeal as it related to these conditions. U.S. v. Del Valle-Cruz, __ F.3d __ (1st Cir. Apr. 6, 2015) No. 13-1050.
4th Circuit says lifetime term of supervised release for child porn offense was procedurally reasonable. (580) Defendant pled guilty to possession of child pornography. He was sentenced to 60 months in prison followed by a lifetime term of supervised release. The Fourth Circuit held that the lifetime term of supervised release was procedurally reasonable. The district judge departed downward from the recommended term of imprisonment of 78-97 months, sentencing defendant to 60 months in prison. Although defendant’s prison term was not directly at issue on appeal, the district judge made clear that the length of the prison term and the length of the supervised release term were linked. The judge also gave full and fair consideration to the §3553(a) factors, considering defendant’s age (21), his lack of criminal history, his extensive mental health issues and his admissions to having viewed child porn as a child. However, she also took notice of his admission that he had sexually abused a three-year old when he was previously in foster care. U.S. v. Helton, __ F.3d __ (4th Cir. Apr. 2, 2015) No. 13-4412.
4th Circuit says lifetime term of supervised release for child porn offense was substantively reasonable. (580) Defendant pled guilty to possession of child pornography. He was sentenced to 60 months in prison followed by a lifetime term of supervised release. The Fourth Circuit held that the lifetime term of supervised release was substantively reasonable. A lifetime term of supervised release is authorized by statute and within the Sentencing Guidelines range. See 18 U.S.C. §3583(k), U.S.S.G. §5D1.2 (authorizing lifetime term of supervised release for sex offenses). Furthermore, an advisory policy statement recommends the statutory maximum term of supervised release for sex offenses. Furthermore, the judge granted defendant a downward variance in his prison term, remarking that she was comfortable doing so because he would be subject to a lengthy term of supervised release. Finally, the judge modified the conditions of supervised release, alleviating some of the more burdensome requirements that she thought inappropriate for defendant given the offense and circumstances of this case and this defendant. U.S. v. Helton, __ F.3d __ (4th Cir. Apr. 2, 2015) No. 13-4412.
8th Circuit rejects alcohol prohibition for defendant who only used marijuana every other month. (580) Defendant pled guilty to failing to register as a sex offense. The Eighth Circuit held that the district court abused its discretion in imposing a condition of supervised release that barred defendant from consuming alcohol or entering establishments that derived their primary source of income from alcohol sales. Defendant’s consumption of marijuana once every other month did not constitute drug dependence. Although his suicide attempt and mental health diagnoses weighed in favor of the alcohol prohibition, the district court’s relied predominantly on a factual conclusion of drug dependency without linking it to another factor such as mental health. U.S. v. Woodall, __ F.3d __ (8th Cir. Apr. 3, 2015) No. 14-2704.
8th Circuit upholds prohibition against contact with minors. (580) Defendant pled guilty to failing to register as a sex offender. He challenged a condition of supervised release barring him from contact with minors, noting that his sex-related offense was 13 years old. The Eighth Circuit nonetheless upheld the condition. The age of defendant’s prior conviction was relevant, but not dispositive. Defendant’s prior offense of sexually abusing his 15-year-old stepsister was very serious, and his failure to register as a sex offender was directly related to potential recidivism. Further, defendant had yet to complete a sex-offender treatment program, which also related to potential recidivism and justified the need to take measures to protect the community after defendant’s release from incarceration. U.S. v. Woodall, __ F.3d __ (8th Cir. Apr. 3, 2015) No. 14-2704.
1st Circuit reverses where 20-year supervised release term was based on belief that SORNA was a “sex offense.” (580) Defendant pled guilty to failing to comply with registration requirements of the Sex Offender Registration and Notification Act (SORNA). He argued on appeal that the district court erred when it imposed a supervised release term of 20 years, claiming it was based on the court’s improper classification of his failure-to-register offense as a “sex offense.” Under the guidelines, a conviction for a “sex offense” has a recommended supervised release range of five years to life. See 18 U.S.C. §3583(k); U.S.S.G. §5D1.2(b)(2). Defendant argued that, under the guidelines, the actual recommended term of supervised release for the SORNA offense was only the statutory minimum of five years, with no higher maximum term. The First Circuit agreed that the district court plainly erred in setting the length of the supervised release term. The term “sex offense” in § 5D1.2(b) does not encompass a SORNA violation. By misclassifying defendant’s SORNA offense, the district court imposed a supervised release term that it believed fell within the guidelines-recommended range. In fact, however, the sentence was four times longer than the term the guidelines actually recommended. U.S. v. Medina, __ F.3d __ (1st Cir. Mar. 4, 2015) No. 13-1936.
1st Circuit rejects condition of supervised release barring possession of pornographic materials. (580) Defendant pled guilty to failing to comply with registration requirements of the Sex Offender Registration and Notification Act (SORNA). The First Circuit held that a condition of supervised release prohibiting defendant from possessing or accessing sexually stimulating materials constituted plain error. The panel was bound by U.S. v. Perazza–Mercado, 553 F.3d 65 (1st Cir. 2009), which vacated on plain error review a supervised release condition that imposed a complete ban on the defendant’s possession of pornographic materials. As in Perazza–Mercado, the district court here did not expressly justify the condition in terms of the statutory considerations of deterrence, protection of the public, and rehabilitation. Nor could the court’s unarticulated reasoning “be inferred” from the record. There was no evidence to indicate that such material “contributed to [defendant’s] offense or would be likely” to contribute to recidivism in the future given his particular history and characteristics. U.S. v. Medina, __ F.3d __ (1st Cir. Mar. 4, 2015) No. 13-1936.
1st Circuit says challenge to supervised release condition requiring penile plethysmograph testing was ripe. (580) Defendant pled guilty to failing to comply with registration requirements of the Sex Offender Registration and Notification Act (SORNA). He challenged on appeal a condition of supervised release mandating his compliance with penile plethysmograph (PPG) testing if his sex offender treatment program required such testing. The government argued that the court could not review the condition until such time as the treatment program actually required defendant to submit to PPG testing. The First Circuit held that defendant’s challenge to the special condition requiring him to submit to PPG testing if required by his treatment program was ripe for review. Defendant was sentenced to 30 months in prison in July of 2013, which meant that he could be subject to the condition in the near term, when he was released from prison and the treatment program commenced. U.S. v. Medina, __ F.3d __ (1st Cir. Mar. 4, 2015) No. 13-1936.
1st Circuit reverses supervised release condition requiring submission to penile plethysmograph testing. (580) Defendant pled guilty to failing to comply with registration requirements of the Sex Offender Registration and Notification Act (SORNA). He challenged a condition of supervised release mandating his compliance with penile plethysmograph (PPG) testing if his sex offender treatment program required such testing. The First Circuit held that the condition was facially unreasonable. The panel agreed with the Second and Ninth Circuits that, due to the invasive nature of the testing, a court must provide a substantial justification before making submission to PPG testing part of a condition of supervised release. Specifically, a district court may not impose the condition unless it can justify it with “a thorough, on-the-record inquiry into whether the degree of intrusion caused by such testing [was] reasonably necessary ‘to accomplish one or more of the factors listed in §3583(d)(1)’ and ‘involve[d] no greater deprivation of liberty than [was] reasonably necessary,’ given the available alternatives.” Here, the court made no effort to respond seriously and on the record to defendant’s objections to the PPG testing condition. U.S. v. Medina, __ F.3d __ (1st Cir. Mar. 4, 2015) No. 13-1936.
6th Circuit approves supervised release for deportable alien despite failure to discuss §5D1.1(c). (580) Defendant pled guilty to reentering the United States following deportation. The district court sentenced him to 18 months of imprisonment, followed by a three-year term of supervised release. He challenged for the first time on appeal the supervised release term, noting that the district court failed to discuss §5D1.1(c), a provision that recommends against sentencing removable aliens to supervised release terms. The Sixth Circuit agreed that the court procedurally erred, but found no plain error because there was no reason to believe the error affected the sentence. The district court explained that a supervised release term was necessary to achieve specific deterrence in light of defendant’s record of repeated illegal re-entries. This discussion closely matched the guidelines commentary acknowledging that in some cases involving deportable aliens, a term of supervised release may be appropriate to provide “an added measure of deterrence and protection.” Note 5 to §5D1.1. The district court’s discussion of the heightened need for specific deterrence in this case, and its reasoning as to how supervised release would further that goal, was explicit, grounded in the record, and clearly articulated. U.S. v. Solano-Rosales, __ F.3d __ (6th Cir. Mar. 23, 2015) No. 13-2692.
7th Circuit remands for failure to explain reasons for conditions of supervised release. (580) Although defendant did not challenge his conditions of supervised release on appeal, the Seventh Circuit nonetheless vacated the conditions in light of its recent decisions in U.S. v. Thompson, __ F.3d __ (7th Cir. Jan. 13, 2015) No. 14-1316, and U.S. v. Siegel, 753 F.3d 705 (7th Cir.2014). As in Thompson, the court imposed 15 standard conditions of supervised release, but did not offer a reason for the conditions. Under Thompson, this approach to sentencing now requires a remand. The conditions were too broad, in the absence of an explanation as to why they were needed. The special conditions also required a remand. As Siegel noted, the prohibition on mood-altering substances could proscribe everything from coffee to chocolate, substances that “are not causal factors of recidivist behavior.” The requirement that defendant obtain his GED was problematic, because it was impossible to require someone to pass a test, let alone the five tests required by the GED. In sum, the general rule for conditions of supervised release now require they be fit to the peculiar circumstances of the defendant being sentenced. They must also be defined in a way that puts defendants on notice of the proscribed behavior. U.S. v. Sewell, __ F.3d __ (7th Cir. Mar. 13, 2015) No. 14-1384.
1st Circuit says supervised release treatment condition was not improper delegation of authority. (580) (855) Defendant pled guilty to failing to register under the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. §2250(a). The First Circuit held that a special condition of supervised release that required defendant to participate in a sex-offender treatment program “as directed by the probation officer” and to submit to periodic polygraph testing at the probation officer’s discretion, was not a plainly erroneous delegation of sentencing authority. Even assuming that the delegation was improper, defendant could not show a reasonable probability that, but for the alleged error, the court would likely have imposed a different and more favorable sentence. This would have required him to show that (1) the court would not have mandated such treatment or testing, and (b) the probation officer would likely have required such treatment or testing. Moreover, the alleged delegation error did not undermine the fairness, integrity or public reputation of the sentencing proceeding. Delegation errors concerning matters incidental to a defendant’s sentence are not so “grave or consequential” as to demand resentencing under plain error review. U.S. v. Mercado, __ F.3d __ (1st Cir. Feb. 6, 2015) No. 13-2268.
1st Circuit holds that sex-offender treatment for SORNA defendant was reasonable. (580) Defendant pled guilty to failing to register under the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. §2250(a). The First Circuit upheld on appeal a special condition of supervised release that required defendant to participate in a sex-offender treatment program. First, in light of the defendant’s prior conviction for a sex offense against a minor and his prodigious criminal history, it was apparent that the sex-offender treatment condition was reasonably related to rehabilitation and protecting the public. The court made clear that the supervised release term was designed not only to help the defendant in abating his criminal tendencies but also to curtail future registration violations. Finally, while a failure to register under SORNA was not itself a sex offense, sex-offender treatment may be imposed as a condition of supervised release even when the offense of conviction is not itself a sex offense. The appropriateness of the condition was evident here. Defendant had been convicted of sexually assaulting a minor in the past, and his persistent criminal involvement over the intervening years made his earlier offense highly relevant. U.S. v. Mercado, __ F.3d __ (1st Cir. Feb. 6, 2015) No. 13-2268.
1st Circuit upholds supervised release condition limiting contact with children. (580) Defendant pled guilty to failing to register under the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. §2250(a). The First Circuit upheld several conditions of supervised release that limited defendant’s contact with minors. The court’s rationale for the conditions was “clear-cut” and plausible. It found that compliance with the conditions would promote defendant’s rehabilitation, and mitigate the obvious risk of recidivism by requiring the defendant to obtain the probation officer’s approval before coming into contact with minors. The conditions were related to his history and characteristics. Defendant had previously been convicted of a sex offense against a minor. Moreover, the offense of conviction was a failure to register under SORNA, a type of lapse that has been credibly linked to an increased risk of recidivism. Finally, the conditions did not comprise an outright ban on defendant’s ability to associate, or even live, with his minor children. The merely required that his association with his children be pre-approved by the probation officer and take place in the presence of an adult familiar with his criminal history. There was no reason to believe the probation officer would unreasonably withhold permission for the defendant to see his own children. U.S. v. Mercado, __ F.3d __ (1st Cir. Feb. 6, 2015) No. 13-2268.
4th Circuit holds that SORNA offense was not “sex offense” for supervised release purposes. (580) Defendant was convicted of knowingly failing to register as a sex offender, as required by the Sex Offender Registration and Notification Act, in violation of 18 U.S.C. §2250(a). He was sentenced to prison and a life term of supervised release. The Fourth Circuit reversed, holding that the district court erred in ruling that defendant’s §2250(a) conviction was for a “sex offense” under §5D1.2(b)(2). This court decided the precise issue raised by defendant only a few weeks earlier in U.S. v. Collins, 773 F.3d 25 (4th Cir. 2014). Collins recognized that a clarifying amendment to the guidelines, effective November 1, 2014, made clear that “failing to register as a sex offender under SORNA is not a ‘sex offense’ for the purposes of the Guidelines.” Thus, defendant was not subject to the enhanced advisory guidelines range for supervised release under §5D1.2(b)(2). U.S. v. Price, __ F.3d __ (4th Cir. Feb. 3, 2015) No. 13-4216.
5th Circuit upholds restriction barring defendant from places where minors were known to frequent. (580) Defendant pled guilty to failing to register as a sex offender, in violation of the Sex Offender Registration and Notification Act (SORNA). The district court imposed a condition of supervised release prohibiting defendant from “residing or going to places where a minor or minors are known to frequent without prior approval of the probation officer.” Defendant did not object to the condition, and the Fifth Circuit upheld it on appeal. The condition was reasonably related to defendant’s “history and characteristics.” Defendant had previously been convicted of sexual assault of a child. Moreover, defendant had a history of refusing to register as a sex offender. His history of noncompliance required a harsher response because defendant posed a greater risk to the public. The condition was not a greater deprivation of defendant’s liberty than reasonably necessary. It only applied to places where minors were “known to frequent,” and thus would include places like schools and playgrounds, but would not include locations like grocery stores, places of worship, and most stores. U.S. v. Fields, __ F.3d __ (5th Cir. Feb. 9, 2015) No. 13-51060.
10th Circuit reverses occupational restriction on supervised release without required findings. (580) Defendant was convicted of multiple child pornography charges. He challenged on appeal a special condition of supervised release mandating his participation in a computer and internet monitoring program. Both parties agreed that the condition was an occupational restriction, as defendant was previously employed as both a computer teacher and computer technician. Section 5F1.5 requires that before a court impose a condition of release that impinges on a defendant’s ability to seek, obtain, and maintain employment, the court must determine that: (1) there was a reasonably direct relationship between defendant’s occupation and the offense of conviction; and (2) imposition of such a restriction was reasonably necessary to protect the public. Even if this determination is made, the court may only impose the condition “for the minimum time and to the minimum extent necessary to protect the public.” The Tenth Circuit ruled that the court plainly erred in imposing the occupational restriction without making these findings. It was unclear whether the district judge even considered the effect of the computer monitoring program on defendant’s prospects for future employment or his ability to pay restitution to his victims. U.S. v. Dunn, __ F.3d __ (10th Cir. Feb. 10, 2015) No. 13-4140.
2nd Circuit bars delegating decision between inpatient and outpatient drug treatment to probation officer. (580)(855) The district court imposed a special condition of supervised release that delegated to the probation department the discretion to select between inpatient and outpatient drug treatment. The Second Circuit agreed that the delegation was improper, and remanded with instructions that the district court itself select which form of treatment defendant should undergo. Although defendant did not object to the delegation below, the panel used a “relaxed” form of plain error review because defendant did not have a sufficient opportunity to raise a contemporaneous objection to the delegation. Defendant could not have known of the delegation until the district court imposed the sentence: the PSR made no mention of delegating the decision about treatment; nor did the district court warn defendant of the possibility before imposing sentence. As for the merits of defendant’s claim, while a district court may delegate to a probation officer decision-making authority over certain minor details of supervised release, a court may not delegate decision-making authority which would make a defendant’s liberty contingent on a probation officer’s discretion. Inpatient drug treatment programs are so much more restrictive than outpatient programs that the difference between them might be said to be the difference between liberty and the loss of liberty. U.S. v. Matta, __ F.3d __ (2d Cir. Jan. 26, 2015) No. 13-4078.
2nd Circuit does not count time spent in residential reentry center toward statutory maximum. (580) After defendant violated his term of supervised release, he was sentenced to 24 months’ imprisonment to be followed by supervised release. Defendant’s special conditions of supervised release included four months in a residential reentry center. Defendant argued that his sentence unlawfully exceeded the statutory maximum of 24 months’ imprisonment. The Second Circuit disagreed. First, 18 U.S.C. § 3583(d) specifically authorizes district courts to require defendants to “reside at, or participate in the program of, a community corrections facility” as a special condition of supervised release. Because defendant’s four months in a residential reentry center was imposed as a condition of supervised release, and supervised release necessarily follows incarceration, defendant’s sentence was authorized by statute. Second, 18 U.S.C. § 3583(e) sets the statutory maximum as a cap only on time spent “in prison.” Residential reentry is a form of community confinement, not a form of home confinement or an extension of prison. U.S. v. Matta, __ F.3d __ (2d Cir. Jan. 26, 2015) No. 13-4078.
7th Circuit rejects bar on contact with persons under 18. (580) Defendant was 23 years old when he began an online relationship with a 14-year old girl. They exchanged nude pictures of themselves. She ran away from home at 16, they crossed state lines, and had sex. Defendant was convicted of possession of child porn, and traveling in interstate commerce for the purpose of engaging in sexual conduct. The Seventh Circuit rejected a condition of supervised release barring defendant from “any contact with persons under the age of 18” unless approved by the probation officer. First, the condition could not be meant literally, since it would also include males under 18 as well as females, and there was no suggestion that defendant was bisexual. Further, “contact” was not defined, and could be understood to include being served by a waitress, paying a cashier, or sitting next to a girl at a baseball game. The Seventh Circuit vacated the condition, since the court did not provide any explanation of how this condition was reasonably related to his offense and background or involved no greater deprivation of liberty than was reasonably necessary. U.S. v. Thompson, __ F.3d __ (7th Cir. Jan. 13, 2015) No. 14-1316.
7th Circuit rejects multiple conditions of supervised release as inappropriate or vague. (580) Defendant was convicted of possession of child porn, and related charges. The judge imposed a total of 24 non-mandatory conditions of supervised release. Because these conditions were part of the sentence, the judge was not permitted to impose them without determining their conformity to the sentencing factors in 18 U.S.C. §3553(a). There was no indication that he did so, and the Seventh Circuit reversed, finding many of the conditions inappropriate or vague. Among the inappropriate conditions was that “defendant shall support his or her dependents and meet other family responsibilities.” This condition assumed arbitrarily that should defendant ever acquire dependents, he would have the resources necessary to support them. Among the vague conditions was that defendant “refrain from excessive use of alcohol,” where “excessive use” was not defined. Another forbid defendant from associating with any person convicted of a felony, without requiring that defendant know the person was a felon. The “best practice,” although not a required practice, would be for the court to inform the parties in advance of the potential conditions and the reasons for imposing them. In the alternative, the judge should explain at sentencing what conditions he was inclined to impose and why, and ask if defense counsel had any objections. U.S. v. Thompson, __ F.3d __ (7th Cir. Jan. 13, 2015) No. 14-1316.
7th Circuit rejects supervised release conditions “riddled with ambiguities.” (580) Defendant pleaded guilty to three bank robberies. The written judgment listed three mandatory conditions of supervised release, 13 standard conditions, and five additional conditions. The judge gave no reasons for any of the conditions. The Seventh Circuit reversed, noting that the conditions were riddled with ambiguities. For example, one condition stated that “as directed by the probation officer, the defendant shall notify third parties of risks that may be occasioned by the defendant’s criminal record or personal history or characteristics.” There was no indication of what was meant by “personal history” and “characteristics” or what “risks” must be disclosed to which “third parties.” Defendant was directed to notify his probation officer of any “change in … employment,” but there was no indication whether change in employment meant changing employers or also included changing from one position to another for the same employer at the same workplace. Defendant was forbidden to “frequent places where controlled substances are illegally sold, used, distributed, or administered,” but there was no requirement that he know or have reason to know or suspect that such activities were taking place. Nor was there any indication of how many trips constituted “frequent[ing]” such places. Defendant was required to pay substantial restitution “at a rate of at least 10% of new monthly income,” but there is no explanation of what “new” was meant to signify. U.S. v. Thompson, __ F.3d __ (7th Cir. Jan. 13, 2015) No. 14-1316.
7th Circuit rejects overbroad conditions of supervised release. (580) Defendant pleaded guilty to three bank robberies and was sentenced to prison for 135 months. Defendant counsel challenged two standard conditions of supervised release. One required defendant to “answer truthfully all inquiries by the probation officer” and the other required defendant to “permit a probation officer to visit him or her at any time at home or elsewhere and shall permit confiscation of any contraband observed in plain view of the probation officer.” The Seventh Circuit found that both conditions were too broad, since there was no explanation from the district court as to why they were needed. It is preferable for a district court to specify limitations in a condition of supervised release in the condition itself, rather than leaving it to the appellate court to interpolate the limitations; otherwise the defendant may think himself bound by the broader interpretation. U.S. v. Thompson, __ F.3d __ (7th Cir. Jan. 13, 2015) No. 14-1316.
7th Circuit reverses where court’s handling of supervised release was “seriously flawed.” (580) Defendant was convicted of drug charges. The Seventh Circuit found that the district court’s handling of supervised release was “seriously flawed.” There was no discussion of any §3553(a) factors to justify the length and conditions of supervised release. Two of the conditions were “seriously questionable.” One stated that “if [the defendant was] unemployed after the first 60 days of supervision or if unemployed for 60 days after termination or layoff from employment, he shall perform at least 20 hours of community service work per week … until gainfully employed.” Taken literally, this meant that if at age 68 defendant was unemployed, he would have to perform 20 hours of community service per week, indefinitely. No doubt the judge, if he thought about this condition, would not have wanted it interpreted literally, especially since an application note to §5F1.3 states that “community service generally should not be imposed in excess of 400 hours.” The judge placed no limit on the community service that defendant could be ordered to perform.Another unsound condition was that the defendant “obtain his GED within the first year of supervision.” The GED is a battery of five tests, and there was no assurance that defendant could pass the tests, let alone within a year. Moreover, defendant would be between 61 and 64 years old when is was released. The judge imposed a 10-year term of supervised release for some but not all of the counts. The judge should have explained the need for a 10-year term of supervised release to take effect when this defendant was in his 60s. U.S. v. Thompson, __ F.3d __ (7th Cir. Jan. 13, 2015) No. 14-1316.
7th Circuit removes ban on “mood-altering substances” that was not in orally-announced conditions. (580) Defendant pled guilty to failing to register as a sex offender. As a mandatory condition of supervised release, §5D1.3(c)(7) prohibits the “excessive use of alcohol.” Here, defendant challenged a special condition that required him to “refrain from the use of alcohol” and not “purchase, possess, use, distribute, or administer any controlled substance or mood altering substance.” The government conceded on appeal that the district court’s oral pronouncement included no mention of the phrase “mood-altering substance.” Because this phrase did not appear in the list of special conditions imposed after the district court’s oral rulings, the Seventh Circuit remanded the issue to the district court with the direction that the prohibition against imbibing “mood-altering substances” be removed from defendant’s special conditions. U.S. v. Cary, __ F.3d __ (7th Cir. Jan. 6, 2015) No. 14-1961.
7th Circuit approves re-imposition of requirement that defendant attend sex offender treatment. (580) Defendant pled guilty to failing to register as a sex offender. He violated his supervised release, and the district court re-imposed a special condition of supervised release that required defendant to participate in a sex offender treatment problem. Defendant argued that the condition was improper because his SORNA offense was not a “sex offense.” The Seventh Circuit upheld the condition. A court is not limited to imposing sex offender treatment on defendants convicted of a sex offender conviction. Here, defendant was convicted of aggravated criminal sexual abuse five years earlier and then he failed to complete sex offender treatment ordered incident to his SORNA conviction. Moreover, defendant was taken into custody after he was arrested for peeping into the windows of a sorority house in the middle of the night. Defendant’s failure to complete this course of treatment was a principal basis for the revocation of his supervised release resulting in the imposition of the special conditions on review here. U.S. v. Cary, __ F.3d __ (7th Cir. Jan. 6, 2015) No. 14-1961.
7th Circuit vacates condition requiring filtering/ monitoring software on defendant’s computer. (580) Defendant pled guilty to failing to register as a sex offender. He challenged a special condition of supervised release that required him to participate in the probation office’s computer and internet monitoring program, and to install filtering software on his computer that would “monitor/block access to sexually oriented websites.” The government conceded that the software filtering condition should be vacated so that the court could clarify precisely what websites should be monitored and blocked. Accordingly, the Seventh Circuit vacated the condition and remanded for the district court to define more precisely the limitation. Further, on remand, the sentencing court must give a reason for imposing this special condition of supervised release. The ban on his access to sexually oriented sites was not necessarily too broad, even though it prohibited him from accessing or viewing adult pornography. Although adult porn generally has First Amendment protection, an offender on supervised release has no unmitigated First Amendment right to view adult pornography on the internet, particularly when he is permitted to view it through other mediums like television or in magazines. U.S. v. Cary, __ F.3d __ (7th Cir. Jan. 6, 2015) No. 14-1961.
7th Circuit upholds requirement that defendant pay for alcohol and mental health services. (580) Defendant pled guilty to failing to register as a sex offender. He argued that he should not be required to pay the costs associated with certain special conditions of supervised release. The Seventh Circuit upheld the conditions, citing 18 U.S.C. §3672. The district court found that defendant was “an offender who is an alcohol-dependent person” and is in need of “psychological … services.” Because the governing statute “authorizes a district court to impose a payment condition for substance abuse treatment” on such a person if he is financially able to do so, the district court did not commit plain error in imposing repayment conditions on defendant in connection with the alcohol and mental health services he was ordered to receive. Defendant’s concern about what would happen if he were unable to pay was overstated. A defendant may not be recommitted to prison for a mere inability to pay. Nonetheless, panel suggested that district courts incorporate language into the special condition that requires the offender to pay for the costs of rehabilitative services if financially able to do so. U.S. v. Cary, __ F.3d __ (7th Cir. Jan. 6, 2015) No. 14-1961.
7th Circuit rejects lifetime term of supervised release without articulated justification. (580) Defendant was 23 years old when he began an online relationship with a 14-year old girl. They exchanged nude pictures of themselves. She ran away from home at 16, they crossed state lines, and had sex. Defendant was convicted of possession of child porn, and traveling in interstate commerce for the purpose of engaging in sexual conduct. The Seventh Circuit held that the district court erred in imposing a lifetime term of supervised release without any articulated justification. The need for an express justification was acute because, as a convicted sex offender, defendant would be subject to a lifetime of mandatory state and local sex-offender reporting apart from supervised release. Moreover, in imposing the life term, the judge was laboring under the misapprehension that “a term of supervised release can be reduced but can’t be extended.” However, supervised release can be extended. 18 U.S.C. §§3583(e)(1)-(2); Fed.R.Crim.P. 32.1(c). U.S. v. Thompson, __ F.3d __ (7th Cir. Jan. 13, 2015) No. 14-1316.
5th Circuit reverses requiring monitoring software where no criminal history involving use of computer. (580) In 2003, at age 20, defendant was convicted of sexual assault of a child based on several sex acts he committed with a 14-year old. The record did not state that the sexual offenses were committed forcibly. In 2013, defendant was convicted of failing to register as a sex offender under the Sex Offender Registration and Notification Act (SORNA). He appealed a special condition of supervised release requiring installation of monitoring software on his computer. Given that defendant neither used a computer nor the internet in committing either his current offense or his underlying sex offense, the Fifth Circuit held that the special condition constituted an abuse of discretion. Supervised release conditions must be “reasonably related” to at least one of the sentencing factors in 18 U.S.C. §3553(a). Section 5D1.3(d)(7)(B) recommends that district courts impose “[a] condition limiting the use of a computer or an interactive computer service in cases in which the defendant used such items.” Defendant did not use a computer in any of his previous offenses. Neither his failure-to-register offense nor his criminal history had any connection to computer use or the internet. U.S. v. Fernandez, __ F.3d __ (5th Cir. Jan. 14, 2015) No. 14-30151.
6th Circuit reverses application of pre-FSA minimum term of supervised release. (192)(250)(580) In 2012, the court sentenced defendant to 192 months in prison and five years of supervised release on a crack cocaine count. However, in August 2010, after defendant committed the offenses, the Fair Sentencing Act (FSA) increased the amount of cocaine base necessary for a five-year minimum term of supervised release from 50 grams to 280 grams. The FSA applies retroactively to defendants who committed their crimes before the FSA’s enactment but were sentenced afterwards. See Dorsey v. U.S., 132 S.Ct. 2321 (2012). The Sixth Circuit held that the district court plainly erred using the pre-FSA statutory range for supervised release. Defendant did not admit any quantity of cocaine base above 50 grams. The error affected defendant’s substantial rights because the sentence was substantially below the guideline range. Thus, there was a reasonable probability that the court did not intend to impose a term of supervised release that was above the statutory minimum. U.S. v. Wilson, __ F.3d __ (6th Cir. Jan. 14, 2015) No. 13-5083.
9th Circuit upholds supervised release for defendant facing deportation. (580) Defendant was convicted of illegal reentry after deportation, in violation of 8 U.S.C. § 1326. At sentencing, the district court imposed a sentence of 34 months in prison and a term of supervised release. The Ninth Circuit held that the district court did not abuse its discretion in imposing a term of supervised release because it found that defendant had a consistent history of coming back to the U.S. after deportation. U.S. v. Jimenez-Arzate, __ F.3d __ (9th Cir. Jan. 12, 2015) No. 12-50373.
10th Circuit reverses restriction on defendant’s contact with daughter. (580) Defendant was convicted of child pornography offenses. He appealed a condition of supervised release that required approval of the probation department before defendant could have any contact with minors, including his youngest daughter. The Tenth Circuit held that the district court plainly erred in restricting defendant’s contact with his daughter without making particularized findings to support the condition. These findings were necessary because the restriction intruded on defendant’s constitutional right to familial association. Because of the burden on defendant’s constitutional right of familial association, the restriction was valid only if defendant presented a danger to his daughter. The record here was not sufficient to make this finding. There was no evidence that defendant had abused or sexually molested children, and the record indicated that defendant had a positive relationship with four of his five children. The district court likely would have softened the contact restrictions if the issue had been raised. As a result, the error seriously affected the fairness and integrity of the proceedings. U.S. v. Burns, __ F.3d __ (10th Cir. Dec. 30, 2014) No. 13-5045.
9th Circuit rejects second or second petition challenging ACCA sentence. (540)(880) Defendant was convict-ed of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). At sentencing, the district court found under the modified categorical approach that both of defendant’s prior burglaries were “violent felonies” under the Armed Career Criminal Act and therefore that defendant should receive a 15-year mandatory sentence. After appealing and filing an unsuccessful petition under 28 U.S.C.§ 2255, defendant sought to file a second or successive § 2255 petition based on the claim that in Descamps v. U.S., 133 S.Ct. 2276 (2013), the Supreme Court announced a new rule of constitutional law that was made retroactive on collateral review. In Descamps, the court held that the modified categorical approach applies only to statutes that are divisible. The Ninth Circuit held that Descamps did not announce a new rule and that even if it did, it was not a constitutional case. Ezell v. U.S., __ F.3d __ (9th Cir. Jan. 23, 2105) No. 14-71696.
9th Circuit rejects supervised release condition barring access to simulated adult sex. (580) When defendant was being released from prison for sexually abusing an infant, a psychologist found that defendant was a pedophile, had an antisocial personality, and was a moderate risk for re-offending. Based on this evaluation, the district court imposed a condition of supervised release that defendant not possess any materials that depicted sexually explicit conduct by adults or children. The Ninth Circuit held that the condition impermissibly violated defendant’s right to patronize establishments that show depictions of simulated adult sexual activity. For that reason, the court re-wrote the condition to apply to depictions of sexually explicit conduct involving children and to materials involving adult sexually explicit activity that are deemed inappropriate by defendant’s probation officer. U.S. v. Gnirke, __ F.3d __ (9th Cir. Jan. 2, 2015) No. 13-50101.
Supreme Court holds supervised release begins upon actual release, despite excess time in prison. (580) By the time two defendant’s convictions were declared invalid, he had served 2.5 years too much prison time. He was at once set free and placed on three years’ supervised release. He moved to reduce his term of supervised release by the amount of extra prison time he served. The district court denied relief, but on appeal, the Sixth Circuit held that defendant’s supervised release term commenced when his lawful term of imprisonment expired, even though he had not yet been released. This was in accord with the Ninth Circuit, but contrary to decisions in the First, Fifth, and Eighth Circuits. The Supreme Court granted certiorari and held that under 18 U.S.C. § 3624(e), the supervised release term is not reduced by reason of excess time served in prison. Under the statute, a supervised release term does not commence until an individual “is released from imprisonment.” However, the statute permits the court to modify the supervised release conditions, or to terminate supervised release after one year. U.S. v. Johnson, 529 U.S. 53, 120 S.Ct. 1114 (2000).
Supreme Court says exclusionary rule does not apply to parole revocation hearings. (580) The Pennsylvania Supreme Court held that the federal exclusionary rule applied to the parolee’s revocation hearing because the officers who conducted the search were aware of his parole status. In a 5-4 opinion written by Justice Thomas, the Supreme Court reversed, holding that evidence obtained in violation of the Fourth Amendment is admissible at parole revocation hearings regardless of whether the officer performing the search knows that the subject of his search is a parolee. The majority noted that previous decisions have declined to extend the exclusionary rule to proceedings other than criminal trials. See U.S. v. Calandra, 414 U.S. 338, 343-346 (1974) (grand jury proceedings); U.S. v. Janis, 428 U.S. 433, 447 (1976) (civil tax proceedings); INS v. Lopez-Mendoza, 468 U.S. 1032, 1050 (1984) (civil deportation proceeding). The majority said that the court has “never suggested that the exclusionary rule must apply in every circumstance in which it might provide marginal deterrence.” Justices Souter, Ginsburg, Breyer and Stevens dissented. Pennsylvania Board of Probation and Parole v. Scott, 524 U.S. 357, 118 S.Ct. 2014 (1998).
Supreme Court requires procedural protections of parole for Oklahoma pre-parole program. (580) Oklahoma operated two programs under which inmates were conditionally released from prison before the expiration of their sentences. One was parole, and the other was the “Preparole Conditional Supervision Program.” The preparole program was intended to reduce overcrowding whenever the population of the prison system exceeded 95% of its capacity. Respondent served five months on pre-parole without incident, but when the governor denied parole, he was returned to prison. In a unanimous opinion written by Justice Thomas, the Supreme Court held that respondent was entitled to the procedural protections set forth in Morrissey v. Brewer, 408 U.S. 471 (1972) because Oklahoma’s pre-parole program was essentially the same as parole. Although the state argued that respondent knew that a denial of parole could result in re-incarceration, the regulation requiring such notice was not promulgated until five months after respondent was returned to prison. Young v. Harper, 520 U.S. 143, 117 S.Ct. 1148 (1997).
Supreme Court holds that supervised release applies to drug offenses committed after October 27, 1986. (580) The Sentencing Reform Act of 1984 eliminated special parole and replaced it with supervised release. However, the SRA did not become effective until November 1, 1987. In the meantime, effective October 27, 1986, Congress passed the Anti-Drug Abuse Act of 1986, mandating supervised release for certain drug offenses. Defendant argued that the ADAA’s supervised release provisions did not become effective until the SRA became effective in 1987. The Supreme Court rejected the argument in a unanimous opinion written by Justice Kennedy. The court ruled that even though the SRA was not yet “operational” when the ADAA became effective, it was reasonable to assume that Congress legislated with reference to the “supervised release” provisions of the SRA. Gozlon-Peretz v. U.S., 498 U.S. 395 (1991).
1st Circuit upholds curfew and 24-hour electronic monitoring as conditions of supervised release. (580) Defendant was convicted of drug and firearms charges, and was sentenced to imprisonment and supervised release. For the first six months of his supervised release, defendant’s sentence also included a nighttime curfew and 24-hour electronic monitoring. When defendant objected, the court responded that “in my courtroom, all gun cases receive [these] conditions.” Despite a waiver of appeal provision in his plea agreement, defendant appealed the conditions of supervised release. The First Circuit held that supervised release conditions of nighttime curfew and 24-hour electronic monitoring did not constitute a miscarriage of justice. First, the court declined to speculate as to why the same conditions were not imposed on defendant’s co-defendants. Defendant provided no proof that he and his co-defendants were identically situated. Second, in support of mitigation, defendant presented his long history of substance abuse, failed treatment attempts, and suicidality. The conditions of release could be understood as efforts to assist in his rehabilitation. U.S. v. Rivera-Lopez, 736 F.3d 633 (1st Cir. 2013).
1st Circuit upholds sex-offender treatment as condition of supervised release. (580) Defendant pled guilty to failing to register as a sex offender. As a condition of supervised release, he was ordered to participate in a sex offender treatment and/or mental health treatment program arranged by his probation officer. He objected to the possibility that the probation officer might deem a sex offender treatment program to be appropriate, noting that his one conviction for a sex offense was 16 years earlier, and nothing else about his history, including his multiple failures to comply with SORNA, provided a permissible justification for the condition. The First Circuit upheld the condition. The district court properly considered defendant’s failure to register under SORNA in three different jurisdictions. The condition that he attend sex-offender treatment was plainly related to his criminal history, as well as to his present offense. Defendant made a conscious choice not to register. He had already served time in prison for failing to register in New Jersey, and knew that there would be a penalty for failing to register again. These continuing failures permitted a rational inference that defendant presented a recidivism risk and warranted deterrent punishment. U.S. v. Morales-Cruz, 712 F.3d 71 (1st Cir. 2013).
1st Circuit upholds restriction on computer use as condition of supervised release. (580) In 2005, defendant was convicted of wire fraud and bank fraud. In 2010, after serving a term of imprisonment, and while on home confinement, defendant used the internet to attempt to fraudulently obtain money from several banks. He was convicted of bank fraud and mail fraud. Defendant objected to two special conditions of supervised release. One limited defendant’s use of computers and access to the internet. The other required defendant to participate in a computer and internet monitoring program, which included periodic unannounced inspections of his computer and other internet capable electronic devices. The First Circuit upheld both special conditions, finding they were reasonably related to the goals of supervised release, to the nature and circumstances of the offense, and to defendant’s history and characteristics. Defendant relied heavily on the internet to perpetrate his frauds, including opening two checking accounts online, opening another using an email address, and conducting a number of electronic money transfers. Moreover, defendant had a history of using the internet to commit crimes. U.S. v. Stergios, 659 F.3d 127 (1st Cir. 2011).
1st Circuit upholds condition requiring defendant to submit to periodic drug tests. (580) Defendant argued, despite her waiver of appeal, that the court erred in directing her, as a condition of supervised release, to submit to periodic drug testing. She noted that nothing in the record suggested that she herself used drugs. The First Circuit found no miscarriage of justice that would warrant disregarding the waiver of appeal. Even though a district court has discretion to refrain from imposing this standard condition of supervised release, leaving it intact does not require a showing that the defendant has a history of drug use. Here, given defendant’s central role in a large-scale drug-related enterprise, the challenged condition fit the circumstances of the crime. U.S. v. Nguyen, 618 F.3d 72 (1st Cir. 2010).
1st Circuit approves sex offender program for defendant convicted of drug offense. (580) Defendant was convicted of drug charges, and sentenced to 193 months’ imprisonment and ten years of supervised release. His criminal history included seven drug convictions, and a 1999 conviction for sexual assault, for which he was sentenced to ten years’ imprisonment, all of which but two were suspended. As special conditions of supervised release, the court required that defendant attend a sex offender treatment program and that he be prohibited from possessing pornography if required by the rules of his treatment program. The First Circuit affirmed the conditions. Sex offender treatment requirements may be imposed when the instant offense is not a sex offense, if the defendant has a conviction for a sex offense. Defendant had previously been convicted of a sexual assault serious enough to warrant a ten-year sentence. That eight of those years were suspended did not detract from the gravity of the offense. U.S. v. Sebastian, 612 F.3d 47 (1st Cir. 2010).
1st Circuit holds that failure to inform defendant that he faced life term of supervised release was reversible plain error. (580) Defendant pled guilty to possession of child pornography. His plea agreement provided that he faced a maximum term of supervised release of three years, and the court reiterated this assertion at his plea hearing. At sentencing, the judge found that, pursuant to 18 U.S.C. § 3583(k), the maximum supervised release term was life. Defendant did not object. The First Circuit held that the failure to inform defendant that he faced a possible life term of supervised release was reversible plain error. The government conceded the first two prongs of plain error review were met – there was an error and it was plain. Given defendant’s assertion that the information he received from the plea agreement and the judge “played a crucial role in his decision to plead guilty,” and the dramatic difference between a three-year period of supervised release and a lifetime of supervised release, defendant showed a reasonable probability that he would not have entered the plea if he understood that his exposure was a lifetime of supervised release. U.S. v. Rivera-Maldonado, 560 F.3d 16 (1st Cir. 2009).
1st Circuit upholds condition of supervised release barring defendant from entering an entire county. (580) As a condition of supervised release, the district court ordered defendants to stay outside the Suffolk County during the entire period of their supervised release (eight and twelve years). Defendants did not challenge the condition below, and the First Circuit held that the district court did not plainly err in imposing the special condition. The appellate court expressed concerns about the breadth and duration of the supervised release condition – most courts have not authorized a blanket exclusion from a particular area lasting as long as the exclusions here. In addition, the evidence justifying the condition was not as stark as in other cases upholding such a restriction. While one defendant had previously violated the housing authority’s “no trespass orders,” and was subject to a wider order prohibiting him from entering any public housing project in Boston, the exclusion from all of Suffolk county was a large leap. However, defendants did not offer any of these arguments below, nor did they suggest any alternative, limited boundary to aid the district court in the exercise of its discretion. Under these circumstances, the condition did not constitute plain error. U.S. v. Garrasteguy, 559 F.3d 34 (1st Cir. 2009).
1st Circuit rejects ban on Internet access at home and ban on possessing any pornography. (580) Defendant was convicted of unlawful sexual contact with a minor. As conditions of supervised release, the district court barred defendant from (1) having any access to the Internet at home; and (2) possessing any pornographic material. The First Circuit held that under the circumstances of the case, the total ban on Internet access at home was overly broad. There was no relationship between the Internet and defendant’s offense, and there was no evidence that he ever used the Internet to view or download child pornography or inappropriately communicate with minors. Moreover, the court’s failure to impose any restriction on defendant’s non-residential Internet usage undermined the rationale for ordering a ban on his use of the Internet at home. Also, given the lack of evidence in the record regarding defendant’s use of pornography, the district court plainly erred by failing to provide an explanation for the total ban on pornography. While defendant’s pattern of conduct toward young girls justified some restriction on his Internet access, there was no evidence suggesting that a complete ban on defendant’s possession of pornography, including legal material involving consenting adults, would serve the same purpose. U.S. v. Perazzo-Mercado, 553 F.3d 65 (1st Cir. 2009).
1st Circuit upholds home confinement as condition of supervised release. (580) After revoking defendant’s first term of supervised release, the district court sentenced defendant to 18 months’ imprisonment, to be followed by one year of supervised release, during the first 180 days of which he was to be subject to limited home confinement. Defendant argued that the plain language of § 3563(b)(19) forbids its application where any term of incarceration is imposed. The First Circuit upheld the home confinement condition. The district court was authorized to impose a maximum sentence of up to two years’ imprisonment. The total period of imprisonment, 18 months, plus the ensuing period of home confinement, 180 days, did not exceed the statutory maximum term of imprisonment of two years. To give defendant relief, the court would have to conclude that the imposition of any period of incarceration under § 3583(e)(3) necessarily precluded any home confinement during the ensuing period of supervised release. U.S. v. Marcano, 525 F.3d 72 (1st Cir. 2008).
1st Circuit holds that non-mandatory, non-standard condition of release imposed for first time in written judgment violated right to be present at sentencing. (580) The written judgment included two conditions of release that were not mentioned by the court at sentencing: a requirement that defendant provide the probation officer with certain financial information, and a requirement that he submit his person, residence, office or vehicle to searches. The First Circuit held that the imposition of non-mandatory, non-standard conditions of supervised release for the first time in the written judgment violated defendant’s right to be present at sentencing. Although some courts have held that defendants have constructive notice for “special” conditions that become “recommended” when certain criteria are met, none of those conditions were met. A financial disclosure condition is a “special” condition that becomes “recommended” if the court imposes an order of restitution, forfeiture, or notice to victims, or orders the defendant to pay a fine. Here, the court did not impose a fine or restitution, and therefore, the financial disclosure condition did not become a “recommended” condition. U.S. v. Sepulveda-Contreras, 466 F.3d 166 (1st Cir. 2006).
1st Circuit reviews drug testing condition for abuse of discretion. (580) The written judgment stated that defendant “shall submit to one drug test within 15 days of release from imprisonment and at least two periodic tests thereafter as required by the Probation Officer.” Both defendant and the government acknowledged that the court improperly delegated to the probation officer the authority to determine the number of drug tests defendant must undergo while on supervised release. The government contended that the review was for plain error, and that the improper delegation could not meet this rigorous test. The First Circuit held that the proper standard of review was not plain error because the court did not announce the condition until the written judgment. Defendant never had the opportunity to object to the wording of the drug testing condition. Instead, the standard of review was abuse of discretion. The district court abused its discretion by delegating to the probation officer the authority to determine the number of drug tests defendant must undergo while on supervised release, and vacated the condition. U.S. v. Sepulveda-Contreras, 466 F.3d 166 (1st Cir. 2006).
1st Circuit expresses surprise that sentencing form violated requirement that judge list maximum number of drug tests. (580) Defendant contended that the district court ought to have imposed a limit on the number of drug tests that his probation officer would be permitted to require of him during his term of supervised release. In U.S. v. Melendez-Santana, 353 F.3d 93 (1st Cir. 2006), the court held that it was error not to impose such a limit, leaving the probation officer’s discretion unbounded. The “standard conditions” worksheet the district court used for specifying the conditions of supervised release did not offer a place for the judge to enter the maximum number of tests as required by Melendez-Santana. The First Circuit expressed surprise that five months after Melendez-Santana, the district court was provided a sentencing form whose use, when filled out as intended, guaranteed a violation of the supervised release statute. On remand, the court should use a sentencing form that implements § 3583(d) as required by Melendez-Santana. U.S. v. Aitoro, 446 F.3d 246 (1st Cir. 2006).
1st Circuit upholds condition of release barring contact with daughter unless Probate Court granted permission. (580) As a condition of supervised release, the district court ordered that defendant stay away from his minor daughter unless and until the Probate Court ordered otherwise. The First Circuit upheld the condition. Although a father-daughter is a constitutionally protected relationship, this did not his mean the court could not impose an order that intruded upon this right. Mere evidence of a biological link does not override all other considerations. Defendant previously was ordered by his probation officer to refrain from contacting his daughter, and he continually attempted to violate this order. The manner in which he did so produced both a state restraining order and a trespass notice. The court could reasonably conclude that both his daughter and his former girlfriend needed to be protected from defendant. Finally, the condition was not absolute. Family matters are best adjudicated in state domestic relations courts, and the district judge constructed this condition to allow for its alteration by the Probate Court (which court defendant had already petitioned for a grant of visitation rights). U.S. v. Smith, 436 F.3d 307 (1st Cir. 2006).
1st Circuit holds that improper delegation to probation officer of authority to determine drug testing regimen was not plain error. (580) The written judgment provided that defendant should “submit to a drug test within fifteen days of release on supervised release, at least two periodic tests thereafter and whenever required by the probation officer.” The First Circuit held that the erroneous delegation to the probation officer of the authority to determine defendant’s drug testing regimen did not satisfy either the third or fourth prongs of the plain error standard. Under U.S. v. Padilla, 415 F.3d 211 (1st Cir. 2005), defendants who fail to preserve this issue are not automatically entitled to plain error relief but must show that the error “affects substantial rights” and “impugns the fairness, integrity or public reputation of the criminal proceeding as a whole.” U.S. v. Vega-Ortiz, 425 F.3d 20 (1st Cir. 2005).
1st Circuit holds that delegation error did not require reversal. (580) Defendants argued that the district court improperly delegated its sentencing authority when it imposed a supervised release condition that allowed a probation officer to determine the number of drug tests. The First Circuit acknowledged that the sentencing court erred in structuring the disputed supervised release condition vis-à-vis the number of drug tests. A sentencing court’s delegation of discretion to a probation officer to determine the number of drug tests that a defendant must undergo, without capping that number, constitutes a delegation error. However, the delegation error did not require reversal, because it did not affect defendants’ substantial rights. They would be required to show circumstances indicating a reasonable probability that the trial court, but for the error, would have imposed a different, more favorable sentence. As to the number of drugs tests, this showing was nearly impossible. As to the condition granting the probation officer discretion to place a defendant in a substantial abuse program, the same rationale was applicable. U.S. v. Sanchez-Berrios, 424 F.3d 65 (1st Cir. 2005).
1st Circuit construes written condition of supervised release to cap the number of drug tests at three. (580) At sentencing, the district court ordered defendant to observe the “standard conditions of supervised release.” In its written judgment, the court specified that “[t]he defendant shall submit to one drug test within 15 days of release from imprisonment and at least two periodic drug tests thereafter.” Defendant argued that the written drug testing provision could be construed as “vest[ing] the probation officer with the discretion to order an unlimited number of drug tests” in violation of 18 U.S.C. § 3583(d), and conflicted with the oral judgment. The First Circuit held that, in accordance with U.S. v. Lewandowski, 372 F.3d 470 (1st Cir. 2004), the condition would be construed to cap the number of drug tests at three. Probation officers who monitor supervisees subject to the drug testing condition may not require more than the minimum three tests without obtaining a modification of the condition under 18 U.S.C. § 3583(e). This construction eliminated the possibility that it could be interpreted as imposing a condition of supervised release materially different from that of which defendant had constructive notice during oral sentencing. U.S. v. De Los Santos, 420 F.3d 10 (1st Cir. 2005).
1st Circuit upholds sex-offender restrictions even though no direct evidence defendant engaged in improper contact with minors. (580) For the first time on appeal, defendant challenged three of the special conditions of supervised release imposed by the district court: (1) that he participate, if directed by the probation office and the court, in a sex-offender treatment program; (2) that he be prohibited from engaging in any occupation that would require direct supervision of child under the age of 18; and (3) that he refrain from having any unsupervised contact with anyone under the age of 18. The First Circuit affirmed the restrictions even though the record contained no direct evidence that defendant engaged in inappropriate conduct with minors. Given his journal entries and a report by defendant’s mental health expert, the record supported the requirement that he undergo evaluation for possible sex offender treatment. Defendant did not demonstrate that the court plainly erred in imposing the conditions on his contact with minors. U.S. v. Prochner, 417 F.3d 54 (1st Cir. 2005).
1st Circuit holds that conventional plain error analysis applied to delegation errors. (580) At sentencing, the district court ordered that defendant submit to at least three drug tests, and delegated to the probation officer the authority to determine the maximum number of tests to be administered. In U.S. v. Padilla, 393 F.3d 256 (1st Cir. 2004), a panel concluded that granting the probation officer unbridled discretion to determine the maximum number of drug tests constituted an improper delegation of judicial authority. Although defendant had raised this claim for the first time on appeal, the panel vacated the disputed condition and remanded for resentencing without engaging in conventional plain error review. That decision was dictated by U.S. v. Melendez-Santana, 353 F.3d 93 (1st Cir. 2003), which required vacation of the disputed condition without resort to conventional plain error analysis. On rehearing en banc, the First Circuit overruled that portion of Melendez-Santana that required automatic reversal for delegation errors, and held that conventional plain error principles must be applied in such cases. Under such principles, the panel concluded that defendant’s sentence could stand, despite the delegation error. Defendant could not demonstrate that the error affected his substantial rights. It was impossible for defendant to show a reasonable probability that he was worse off because the probation officer, rather than the district court, had the power to determine the maximum number of drug tests. There also was nothing fundamentally unfair about the delegation of authority to the probation officer, since it concerned a matter incidental to the case. U.S. v. Padilla, 415 F.3d 211 (1st Cir. 2005) (en banc).
1st Circuit requires defendant to participate in sex offender program even though current offense was not sex-related. (580) While serving a sentence for sexually assaulting a young girl, defendant mailed a threatening letter to his estranged common law wife, threatening to kill her upon his release from prison. He was convicted of sending threatening communications via the U.S. Postal Service. The First Circuit upheld a condition of supervised release requiring defendant to participate in a sex offender treatment program, even though his current offense was not sex-related. In imposing conditions of supervised release, a sentencing court should consider each defendant’s history, regardless of the nature of the crime of conviction. A judge has the authority to impose any condition of release that is reasonably related to (1) the defendant’s offense, history, and characteristics; (2) the need to deter the defendant from further criminal conduct; (3) the need to protect the public from future crimes by defendant; and (4) the educational, vocation, medical, or other correctional treatment of the defendant. U.S.S.G. § 5D1.3(b)(1). Defendant had twice been convicted for sexually assaulting young girls. Given this, and in light of the record in this case, which included a threat of violence against yet another woman, the district court was well within its discretion in requiring defendant to participate in the sex offender treatment program. U.S. v. York, 357 F.3d 14 (1st Cir. 2004).
1st Circuit upholds polygraph testing as means to ensure compliance with sex offender program. (580) As conditions of supervised release, the district court ordered defendant to participate in a sex offender treatment program, and required him to submit to periodic polygraph testing as a means to insure that he was in compliance with this requirement. The First Circuit rejected defendant’s claim that the condition improperly delegated to non-judicial officers the power to determine matters of punishment. The panel also refused to find that the polygraph was inherently unreliable. To the extent defendant feared a false positive, the court ordered that no violation would arise based solely on the defendant’s failure to pass the polygraph. The condition stated that “when submitted to a polygraph exam, the defendant does not give up his Fifth Amendment rights.” The panel interpreted this to mean that defendant’s supervised release would not be revoked based on his refusal to answer polygraph questions on valid Fifth Amendment grounds. U.S. v. York, 357 F.3d 14 (1st Cir. 2004).
1st Circuit says court lacked authority to order parent to return children to U.S. “forthwith.” (580) Defendant was convicted of international parental kidnapping. As a condition of supervised release, the district court ordered defendant to “forthwith” take all reasonable measures to return the children to the United States. However, despite its placement under the heading “Conditions of Supervised Release,” the challenged order was not a condition of supervised release, but rather was an order designed to take effect immediately, while defendant was serving his prison term. The First Circuit ruled that the court did not have the authority to make this order, under either the restitution statutes or the All Writs Act. The return of the children to the U.S. was not an “in-kind payment” contemplated by Congress in 18 U.S.C. § 3664(f)(3)(A). The All Writs Act was not applicable because while the court had criminal jurisdiction over defendant, it did not have jurisdiction over the custody of the children. Nonetheless, if an order to return the children were imposed as a condition of supervised release, such a condition would be lawful. U.S. v. Fazal-Ur-Raheman-Fazal, 355 F.3d 40 (1st Cir. 2004).
1st Circuit holds that supervised release condition subjected premises, not defendant’s visitors, to searches. (580) The written judgment included as a special condition of supervised release that defendant’s person, residence and vehicle be subject to searches and that “defendant shall warn any other residents that the premises may be subject to searches pursuant to this condition.” At sentencing, the court used slightly different language: “The Defendant shall warn any other residents at a premises [sic] that they may be subjected to a search pursuant to this condition.” Defendant argued that this condition was unconstitutional and arbitrary because it implied that probation officers would be allowed to search the person of anybody they find on the “premises” and that defendant was obligated to inform guests and visitors of this possibility. The First Circuit rejected this reading, finding that defendant’s premises, not the people themselves (other than defendant) were the subject of the possible search and required warning. The condition was proper. U.S. v. Padilla-Galarza, 351 F.3d 594 (1st Cir. 2003).
1st Circuit upholds requiring defendant to provide access to financial information. (580) The sentencing court included a special condition of supervised release in its written order that required defendant to provide his probation officer access to his financial information upon request. Section 5D1.3(d) recommends such a special condition where the court imposes an order of restitution or orders defendant to pay a fine. However, the court did not include a fine or order him to pay restitution. However, this did not mean that the court was not justified in imposing the disclosure requirement. The guidelines allow such conditions when they are “appropriate in particular cases.” According to the stipulated statement of fact, defendant was responsible for financing the purchase of 25 kilograms of cocaine at a cost of $300,000. Forcing defendant to provide financial records to the probation officer would assist the officer in detecting whether he had returned to his criminal ways. Given the circumstances of the case, the First Circuit held that the court’s imposition of this condition did not constitute an abuse of discretion. U.S. v. Melendez-Santana, 353 F.3d 93 (1st Cir. 2003), overruled on other grounds, U.S. v. Padilla, 415 F.3d 211 (1st Cir. 2005).
1st Circuit holds that court delegated too much discretion to probation officer to order drug treatment and testing. (580) Defendant argued that the court violated his Sixth Amendment right to be present at his sentencing by including a special drug treatment condition in the written sentencing orders without announcing that condition at the sentencing hearing. The First Circuit agreed. The failure of the sentencing court to announce the drug treatment condition at sentencing created a material conflict between the written and oral sentencing orders. Moreover, the sentencing court delegated too much discretion to the probation officer to decide whether defendant must participate in a drug treatment program. That treatment decision must be made by the court, either at the time of sentencing, or later in response to a motion by the probation officer, citing the positive drug test during the period of supervised release and seeking a change in the conditions of supervised release. Moreover, the court impermissibly delegated its authority to a probation officer when it allowed the officer to decide how many drugs tests defendant would be required to undergo. By its plain terms, 18 U.S.C. § 3583(d) requires courts to determine the maximum number of drug tests to be performed beyond the statutory minimum of three, with probation officers permitted to decide the number of tests to be performed within the range established by the court. U.S. v. Melendez-Santana, 353 F.3d 93 (1st Cir. 2003), overruled on other grounds, U.S. v. Padilla, 415 F.3d 211 (1st Cir. 2005).
1st Circuit upholds requirement that defendant furnish proof of having filed income tax returns. (580) Defendant, a police officer, used his position to improperly seize weapons, and resell them. The district court ordered him, as a condition of supervised release, to produce evidence that he was filing income tax returns in compliance with law. The First Circuit rejected defendant’s claim that the challenged condition was not reasonably related to the offense of conviction. The most that could be said was that the relatedness of the special condition was “somewhat attenuated.” The offense, trafficking in illegal weapons, was commercial in nature and motivated primarily by greed. Given this, the district court had a valid interest in ensuring that defendant complied with income-reporting requirements after his release from custody. U.S. v. Mansur-Ramos, 348 F.3d 29 (1st Cir. 2003).
1st Circuit remands for resentencing as to length of terms of supervised release. (580) Defendants pled guilty to drug conspiracy charges, and received, in part, ten-year terms of supervised release. In U.S. v. Cortes-Claudio, 312 F.3d 17 (1st Cir. 2002), the court held that 21 U.S.C. § 841(b), which mandates a term of supervised release of “at least five years” for covered drug-trafficking offenses, means that a court can impose a turn of supervised release for such an offense in excess of five years. However, a term of more than five years constitutes an upward departure from the guidelines. Thus, the sentencing court must give prior notice to the defendant of its intent to impose a term of such an extended duration and must state on the record the aggravating circumstances that justify the upward departure. Because the district court failed to give such notice, the First Circuit remanded for resentencing. U.S. v. Matos, 328 F.3d 34 (1st Cir. 2003).
1st Circuit holds that four-year term of supervised release did not violate § 3583(b). (580) Defendant argued that the district court erred in sentencing her to four years of supervised release, noting that 18 U.S.C. § 3583(b) authorizes only a three-year term of supervised release for Class C felonies. However, in U.S. v. Corts-Claudio, 312 F.3d 17 (1st Cir. 2002), the court held that § 3583(b) does not limit the length of supervised release under § 841, and that the maximum term of supervised release were those set forth in § 841(b). The “at least” language in § 841(b)(1)(B) establishes a mandatory minimum term of supervised release, but no maximum. See U.S. v. Lopez, 299 F.3d 84 (1st Cir. 2002). The First Circuit found no error in the four-year term of supervised release. U.S. v. Nieves, 322 F.3d 51 (1st Cir. 2003).
1st Circuit finds court failed to support departure from guidelines’ supervised release term. (580) Defendants claimed that their 15 and 20-year terms of supervised release were invalid because they were disproportionately longer as a percentage of their total years of imprisonment than their co-defendants’ terms. The First Circuit disagreed, since nothing in § 3742(a) allows reviews of a sentence imposed in conformity with the guidelines on the ground that a co-defendant was treated differently. U.S. v. Rios-Calderon, 80 F.3d 194 (7th Cir. 1996). However, the district court erred in another respect. Guideline § 5D1.2 states that supervised release terms for Class A or Be felonies shall be “at least three years but not more than five years.” The relevant statute, 21 U.S.C. § 841(b)(1)(A), provides for a term of supervised release of “at least five years.” In U.S. v. Cortes-Claudio, 312 F.3d 17 (1st Cir. 2002), the court held that these provisions should be read together to mean that a defendant convicted under 21 U.S.C. § 841(b)(1)(A) can be sentenced to only five years of supervised release unless the judge makes a permissible upward departure from the guidelines. The judge here mistakenly concluded that the guidelines did not apply to the length of a supervised release term and thus did not give the parties notice of a possible upward departure or make the required findings of aggravated circumstances to support the departure. U.S. v. Nelson-Rodriguez, 319 F.3d 12 (1st Cir. 2003).
1st Circuit says required disclosure of financial information and alcohol prohibition were not overbroad. (580) Defendant argued that the conditions of supervised release requiring that he “provide the probation officer with access to any requested financial information” and limiting his ability to obtain credit were overbroad in violation of U.S.S.G. § 5D1.3(b). The First Circuit disagreed, since these special conditions are recommended by the Commission for defendants who are paying fines in installments. See § 5D1.3(d)(2)-(3). The special conditions prohibiting defendant’s possession of alcohol and his presence at establishments primarily serving alcohol was also proper. The record contained ample evidence of defendant’s history of alcohol abuse, including a conviction for driving while under the influence of alcohol. Defense counsel argued that defendant’s mental illness contributed to the commission of his crime, and that defendant’s abuse of alcohol exacerbated the symptoms of the mental illness. The district court did not commit obvious error in concluding that defendant’s history of alcohol abuse required a stiff prohibition. U.S. v. Allen, 312 F.3d 512 (1st Cir. 2002).
1st Circuit holds that court did not unlawfully delegate the power to determine psychiatric treatment. (580) The district court ordered, as a special condition of supervised release, that defendant “shall participate in a program of mental health treatment, as directed by the probation officer, until such time as the defendant is released from the program by the probation officer.” Defendant argued that this condition was an unlawful delegation because it empowered the probation officer to decide whether and for how long defendant must participate in mental health treatment. The First Circuit affirmed the condition, finding that the judge was merely directing the probation officer to perform ministerial support services and was not giving the officer the power to determine whether defendant had to attend psychiatric counseling. The record contained many references to defendant’s mental illness. This extensive evidence indicated that the court was imposing mandatory counseling and delegating the administrative details to the probation officer, actions constituting a permissible delegation. U.S. v. Allen, 312 F.3d 512 (1st Cir. 2002).
1st Circuit holds that § 841’s provision for supervised release control over general supervised release statute. (580) “Except as otherwise provided,” the maximum supervised release term for Class A and Class B felonies is five years. 18 U.S.C. § 3583(b). However, 21 U.S.C. § 841(b)(1)(A), mandates a supervised release term of “at least five years.” This language in § 841(b) established a mandatory minimum term of supervised release, not a maximum. U.S. v. Lopez, 299 F.3d 84 (1st Cir. 2002). The First Circuit held that § 841(b)’s provisions for supervised release controlled over the general supervised release statute. The maximum five-year supervised release term in § 3583(b) is not applicable. The phrase “[e]xcept as other provided” indicates that § 3583(b) yields to other more specific statutes, such as § 841, that make different provisions for terms of supervised release for particular offenses. However, the district court erred when it sua sponte departed upward to impose a ten-year supervised release term. Under the guidelines, defendant was subject to a three- to five-year supervised release term, U.S.S.G. § 5D1.2(a)(1). The court apparently overlooked this fact, stating that the ten-year period of supervised release was “within the sentencing guidelines.” Thus, the court committed two errors: failing to provide the parties with notice of the potential upward departure, see Burns v. U.S., 501 F.3d 129 (1990) and not making the required findings of an aggravating or mitigating circumstances to support the departure. U.S. v. Cortes-Claudio, 312 F.3d 17 (1st Cir. 2002).
1st Circuit holds that five-year supervised release term is consistent with term of “at least 4 years.” (580) Defendant was convicted of drug charges, and was sentenced under 21 U.S.C. § 841(b)(1)(B), which provides for a term of supervised release of “at least 4 years.” He cited U.S. v. Barnes, 244 F.3d 172 (1st Cir. 2001) for the proposition that “supervised release terms set out in particular sections of the drug laws establish the maximum terms for violations of those sections.” Based on this statement in Barnes, he argued that his five-year term of supervised release should be vacated because it “exceeds the term set forth in [21 U.S.C. § 841(b)(1)(B)].” He argued that according to Barnes, four years was the maximum term of supervised release to which he could be sentenced. The First Circuit disagreed, holding that the five-year term of supervised release defendant received was consistent with the statutory provision for a term of supervised release of “at least 4 years.” To the extent that Barnes suggests otherwise, the quoted statement in Barnes was limited to the specific facts of that case. U.S. v. Lopez, 299 F.3d 84 (1st Cir. 2002).
1st Circuit holds that five-year term of supervised release violated Apprendi. (580) Defendant argued that the length of her sentence violated the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000) (holding that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt). The First Circuit found no Apprendi violation since defendant’s 168-month sentence fell below the 20-year default statutory maximum for her drug offense. See U.S. v. Robinson, 241 F.3d 115 (1st Cir. 2001). However, defendant’s five-year supervised release term violated Apprendi. The penalty statute, 21 U.S.C. § 960(b)(3), provides explicitly for a supervised release term of three years for violations of the importation statute involving less than 500 grams of cocaine. Given that supervised release terms set out in particular sections of the drug laws establish the maximum terms for violations of those sections, Apprendi required defendant’s supervised release term to be reduced to three years. U.S. v. Barnes, 251 F.3d 251 (1st Cir. 2001).
1st Circuit upholds condition that deported defendant remain outside U.S. during supervised release. (580) The district court ordered, as a condition of supervised release, that if defendant were deported, he was to remain outside the U.S. for the entire term of his supervised release. While previous cases have held that a district court may not order a defendant be deported as a condition of supervised release, U.S. v. Sanchez, 923 F.3d 236 (1st Cir. 1991), the court may, if the defendant is deported, provide “as a condition of supervised release, that he be deported and remain outside the United States.” 18 U.S.C. § 3583(d). Thus, the First Circuit affirmed the order. The statute does not violate the separation of powers doctrine or Sanchez. U.S. v. Solares, 236 F.3d 24 (1st Cir. 2000).
1st Circuit holds that defendant was not entitled to advance notice of alcohol restriction. (580) The district court ordered that defendant abstain from the use of alcohol during his period of supervised release. The First Circuit rejected defendant’s claim that he was entitled, under Burns v. United States, 501 U.S. 129 (1991), to advance notice of the court’s intention to impose the “stay dry” condition. Burns dealt with departures from the guidelines that, almost by definition, deviate from those typically imposed on similar offenders for similar offenses. In contrast, the guidelines contemplate, and thus give notice, that a sentencing court will tailor supervised release conditions to fit the circumstances of the offense and the characteristics of the offender. “A defendant rarely, if ever, will be able to claim unfair surprise when the sentencing court establishes the conditions of supervised release.” A standard condition of supervised release prohibits excessive drinking. USSG § 5D1.3(c)(7). The court’s “stay dry” condition merely amplified this standard condition. Moreover, the facts of the case supported the condition. Defendant’s criminal history demonstrated a long-standing problem with alcohol, and a propensity to commit crimes when intoxicated. U.S. v. Brown, 235 F.3d 2 (1st Cir. 2000).
1st Circuit upholds repayment of counsel’s fees as condition of supervised release. (580) In addition to imprisonment and a $4,000 fine, the district court sentenced defendant to a three-year term of supervised release, conditioned on his repayment of $3,000 in counsel fees paid by the government to defendant’s assigned counsel under the Criminal Justice Act. The First Circuit upheld the repayment of counsel’s fees as a condition of supervised release. The district court can require such repayment under 18 U.S.C. § 3006A(f). The judge also had the authority to make repayment a condition of supervised release. A court may order any condition it considers to be appropriate, so long as the condition is reasonably related to certain specified factors, involves no greater deprivation of liberty than reasonably necessary, and is consistent with the Sentencing Commission’s policy statements. The condition that defendant repay counsel fees out of available funds was “reasonable related” to deterrence, one of the factors specified by Congress. Obviously, a court cannot require a penniless defendant to make immediate payments or send a defendant back to jail where he had done his best to comply with an installment schedule. However, in this case the amount was well covered by the $20,000 defendant was due in disability payments. U.S. v. Merric, 166 F.3d 406 (1st Cir. 1999).
1st Circuit refuses to reduce supervised release by time served on vacated count. (580) On defendant’s § 2255 motion, the district court, applying Bailey v. U.S., 116 S.Ct. 501 (1995), dismissed defendant’s § 924(c) conviction and vacated his 60-month sentence for that offense, of which defendant had already served over half. Since defendant had already completed serving his other sentences, the court ordered defendant released, directing that his 3 1/2 year supervised release term begin operating. Defendant argued that the supervised release term should be considered as beginning on the date the two served sentences ended, rather than the date he was released from prison. The First Circuit rejected the argument as contrary to the language of 18 U.S.C. § 3624. Moreover, supervised release terms are not alternate forms of punishment but rather are designed to ease a prisoner’s return to civilian life. Finally, defendant ignored the possibility of relief under 18 U.S.C. § 3583(e), which allows a court to grant early termination of supervised release “in the interests of justice” after serving one full year. U.S. v. Joseph, 109 F.3d 34 (1st Cir. 1997).
1st Circuit upholds purchase limit as condition of supervised release. (580) Defendant fraudulently obtained numerous credit cards, used them, and then reported them as stolen. As a condition of supervised release, the district court required defendant to receive prior approval of the probation department before obtaining any new credit and before making purchases over $100. The First Circuit upheld the special condition limiting his purchasing power, finding a sufficient connection between the restriction and defendant’s crimes. Defendant had a long history of health problems, and had been unable to control his spending. The court believed that defendant’s crimes stemmed from a total lack of financial discipline and a compulsion to make excessive expenditures. It could have rationally concluded that oversight of expenditures over $100 would help deter the kind of overspend U.S. v. Phaneuf, 91 F.3d 255 (1st Cir. 1996).
1st Circuit requires loan shark to obtain probation office approval before getting new credit. (580) Defendant was convicted of making extortionate extensions of credit. He challenged a condition of his supervised release requiring probation office approval prior to incurring new credit charges or opening of new credit lines. He claimed it was not reasonably related to his offense and that its only purpose was to ensure compliance with a fine payment schedule. The First Circuit found that the condition was reasonably related to defendant’s offense, preventing his participation in further extortionate lending, and ensuring payment of his fine. The evidence suggested that defendant’s extortionate lending activity was not limited to the identified victim. Prescreening new credit charges and credit lines was a reasonable information‑gathering device for the probation office to monitor defendant’s use of money. When defendant desires new credit, the probation office can inquire as to its purpose and planned disbursement. Defendant failed to explain how the condition affected his participation in any lawful occupation, business or profession. U.S. v. Peppe, 80 F.3d 19 (1st Cir. 1996).
1st Circuit upholds prohibiting possession of alcohol as condition of supervised release. (580) Defendant pled guilty to possessing stolen mail, theft of postal service property and other charges relating to a crime spree. As part of a three-year sentence of supervised release, the district court ordered defendant to abstain from the use or possession of alcohol and illegal drugs. The Second Circuit upheld the prohibition against defendant’s use or possession of alcohol. Defendant came from a family with an active history of alcohol abuse and substance abuse continued to be a serious problem for him. Moreover, on several occasions defendant used proceeds from his crime spree to purchase alcohol. U.S. v. Thurlow, 44 F.3d 46 (1st Cir. 1995).
1st Circuit remands where defense counsel was unaware of notice requirement in section 851. (580) The district court imposed the mandatory minimum six-year supervised release term prescribed by 21 U.S.C. section 841(b)(1)(C) for repeat offenders. This was an increased punishment which required the filing of a notice under section 851, which the government failed to file. Defendant did not object below and he did not appeal his sentence. On appeal from the denial of his 28 U.S.C. § 2255 motion, the 1st Circuit remanded for reconsideration. There may have been both cause for, and prejudice from, the procedural default. Defense counsel, apparently unaware of the notice requirement in section 851, invited the court to apply the enhanced recidivist penalties. Such an oversight could constitute sufficient cause to excuse the procedural default. Since this issue was not considered below, remand was required. Suveges v. U.S., 7 F.3d 6 (1st Cir. 1993).
1st Circuit upholds alcohol and drug treatment and testing conditions for past drug user. (580) A special condition of defendant’s supervised release required him to submit to random drug testing, as well as drug and alcohol treatment, as directed by the probation service. Defendant objected to this condition on the ground that his use of drugs was five or more years in the past. The 1st Circuit affirmed. The drug testing and treatment requirement, if deemed necessary by the probation service, lay well within the district court’s discretion, given defendant’s past use and past dealing in drugs. As to alcohol, the failure of defendant to raise this objection at sentencing or by post-trial motion made it impossible to assess the district court’s reasons for adding this condition and the failure waived the objection. U.S. v. Elwell, 984 F.2d 1289 (1st Cir. 1993).
1st Circuit upholds continuous employment as a condition of supervised release. (580) The 8th Circuit upheld as a condition of supervised release the requirement that defendant remain continuously employed for compensation throughout his term of supervised release. Guideline section 5B1.4(a)(5) expressly lists this as a standard condition recommended for supervised release. U.S. v. Austin, 957 F.2d 44 (1st Cir. 1992).
1st Circuit finds defendant received adequate notice of terms of supervised release. (580) Defendant’s supervised release was revoked as a result of his drug use. He contended that the district court had erred by not directing the probation officer to provide him with a written statement setting forth the conditions of his supervised release, as required by 18 U.S.C. § 3583(f). The 1st Circuit found that defendant had received adequate notice. Upon being sentenced by the district court, defendant and his counsel received copies of the sentence, to which were attached the conditions of his supervised release. This clearly stated that one of the conditions of the supervised release was that defendant not purchase, possess, use or distribute any narcotic. U.S. v. Ramos-Santiago, 925 F.2d 15 (1st Cir. 1991).
1st Circuit upholds payment of city fine as condition of supervised release. (580) Defendant was convicted of knowingly discharging into the city sewer system excessive amounts of zinc and cyanide. Defendant contended that the district court improperly conditioned his term of supervised release on the payment of a $60,000 fine due the city. He argued that the fine actually represented restitution to the victim, no basis for restitution was established, and it was an abuse of discretion to condition supervised release on the payment of a fine which the court knew defendant could not pay. The 1st Circuit rejected these contentions. A sentencing court may impose conditions on a term of supervised release to the extent the conditions are reasonably related to the nature and circumstance of the offense. The city fined defendant $60,000 for violating his sewer permit. This fine was reasonably related to the offense, and its payment was an appropriate condition of defendant’s term of supervised release. U.S. v. Wells Metal Finishing, Inc., 922 F.2d 54 (1st Cir. 1991).
2nd Circuit reverses condition of supervised release permitting plethysmograph exams for sex offender. (580) Defendant, a convicted sex offender, was convicted of failing to register a change in his address. As a condition of supervised release, he was ordered to participate in an approved sex offender treatment, which might include plethysmograph examinations, as directed by the probation officer. The Second Circuit held that this “extraordinarily invasive condition” was unjustified, was not reasonably related to the statutory goals of sentencing, and violated defendant’s right to substantive due process. The condition was a sufficiently serious invasion of liberty such that it could be justified only if it was narrowly tailored to serve a compelling government interest. The government proffered no such justification. Although the government asserted that plethysmography was a useful form of correctional treatment for sex offenders who have an unusually high recidivism rate, the district court here concluded that defendant was unlikely to reoffend. The government also could not point to any consensus on the reliability of plethysmographic data. The offense was not reasonably related to the nature and circumstances of the offense. There was no reasonable connection between this defendant, his conviction more than a decade ago, his failure to fill out paperwork, and the government-mandated measurement of his penis. U.S. v. McLaurin, 731 F.3d 258 (2d Cir. 2013).
2nd Circuit upholds term of supervised release imposed on deportable alien. (580) Defendant, a deportable alien, argued that the district court plainly erred in imposing a three-year term of supervised release, even though guideline § 5D1.1(c) says district courts “ordinarily should not impose a term of supervised release” on a “deportable alien who likely will be deported after imprisonment.” The district court believed that the sentence was needed to deter defendant from reentering the U.S. illegally in the future. The Second Circuit held that imposing supervised release is appropriate and not a departure from § 5D1.1 if the district court finds “that supervised release would provide an added measure of deterrence and protection based on the facts and circumstances of a particular case.” The district court did not err in sentencing defendant to a three-year term of supervised release. U.S. v. Alvarado, 720 F.3d 153 (2d Cir. 2013).
2nd Circuit affirms supervised release for illegal alien as mandatory for drug trafficking. (580) A recent amendment to § 5D1.1(c) says sentencing courts “ordinarily should not impose a term of supervised release in a case in which supervised release is not required by statute and the defendant is a deportable alien who likely will be deported after imprisonment.” The Second Circuit found this provision inapplicable because defendant’s term of supervised release was a required component of his sentence for drug trafficking. See 21 U.S.C. §§ 841(b)(1)(A) and 960(b)(1)(H). Moreover, the amendment did not go into effect until November 1, 2011, well after defendant was sentenced. U.S. v. Roccisano, 673 F.3d 153 (2d Cir. 2012).
2nd Circuit reverses tax sentence that exceeded statutory maximum. (580) Defendant was convicted of 16 counts of aiding and assisting in the preparation of false federal income tax returns, in violation of 26 U.S.C. § 7206(2). The court sentenced him to concurrent terms of 41 months’ incarceration and three years of supervised release. The Second Circuit reversed, ruling that the terms of imprisonment and supervised release imposed by the district court exceeded the maximum permitted by statute. The maximum term of imprisonment that may be imposed for a violation of 26 U.S.C. § 7206(2) is three years’ incarceration, and the maximum period of supervised release on each count of conviction is one year, 18 U.S.C. § 3585(b)(3) (2006). U.S. v. Cadet, 664 F.3d 27 (2d Cir. 2011).
2nd Circuit says condition requiring defendant to notify probation office of “significant romantic relationship” was too vague. (580) Defendant was convicted of possessing child pornography. As a special condition of supervised release, the court required defendant to “notify the Probation Department when he establishes a significant romantic relationship and … inform the other party of his prior criminal history concerning his sex offenses.” The Second Circuit held that the special condition was too vague to comply with due process. People of common intelligence would find it impossible to agree on the proper application of a release condition triggered by entry into a “significant romantic relationship.” In addition to be being too vague to be enforceable, the special condition was not “reasonably related” to the sentencing objectives of 18 U.S.C. § 3553(a). The history and characteristics of defendant’s offenses did not indicate that he posed a risk to those with whom he would have a “significant romantic relationship.” The condition also effected an unnecessary deprivation of liberty, because it was not reasonably necessary for deterrence, the protection of the public, or rehabilitation, and was not narrowly tailored. U.S. v. Reeves, 591 F.3d 77 (2d Cir. 2010).
2nd Circuit says employer notification requirement would not apply where use of computer was unlikely. (580) Defendant pled guilty to one count of possessing child pornography. As a special condition of supervised release, the district court authorized the probation office to discuss third-party risks with defendant’s employers. He argued that this condition was overbroad because it assumed that his employment would be related to his offense of possessing child pornography. The Second Circuit held that the condition was not overbroad. The district court’s statements at sentencing, as well as the circumstances of the case, informed probation that the purpose of the employer notification condition was to aid the prevention of improper computer use. The court was not persuaded that the condition would be read to apply to all types of employment, including those where defendant’s use of a computer was unlikely. U.S. v. MacMillen, 544 F.3d 71 (2d Cir. 2008).
2nd Circuit upholds prohibition against visiting places children are likely to congregate. (580) As a condition of supervised release, the district court prohibited defendant from being in “any areas or locations where children are likely to congregate[,] such as schools, daycare facilities, playgrounds, theme parks, arcades, recreational facilities, and recreation parks,” without prior approval from defendant’s probation officer. Defendant argued that the condition was both overly broad and unconstitutionally vague, like the condition struck down in U.S. v. Peterson, 248 F.3d 79 (2d Cir. 2001). Peterson involved a condition barring the defendant from “being on any school grounds, child care center, playground, park, recreational facility or any area in which children are likely to congregate.” The Peterson court ruled that the condition as written was excessively broad because it could be interpreted to bar the defendant from a national park or joining an adult gym where children do not congregate. The Second Circuit found that the restriction imposed here could not be interpreted unreasonably broad – the condition applied only to places where children were likely to congregate. U.S. v. MacMillen, 544 F.3d 71 (2d Cir. 2008).
2nd Circuit upholds prohibition against visiting places children are likely to congregate. (580) As a condition of supervised release, the district court prohibited defendant from being in “any areas or locations where children are likely to congregate[,] such as schools, daycare facilities, playgrounds, theme parks, arcades, recreational facilities, and recreation parks,” without prior approval from defendant’s probation officer. Defendant argued that the condition was both overly broad and unconstitutionally vague, like the condition struck down in U.S. v. Peterson, 248 F.3d 79 (2d Cir. 2001). Peterson involved a condition barring the defendant from “being on any school grounds, child care center, playground, park, recreational facility or any area in which children are likely to congregate.” The Peterson court ruled that the condition as written was excessively broad because it could be interpreted to bar the defendant from a national park or joining an adult gym where children do not congregate. The Second Circuit found that the restriction imposed here could not be interpreted unreasonably broad – the condition applied only to places where children were likely to congregate. U.S. v. MacMillen, 544 F.3d 71 (2d Cir. 2008).
2nd Circuit bars defendant from doing mental health counseling, as condition of release. (580) Defendant was convicted of making false statements relating to a health care matter, in violation of 18 U.S.C. § 1035. The district court ordered, as a condition of supervised release, that defendant not “engage in the business of counseling.” Section 5F1.5 authorizes a sentencing court to impose an occupational restriction as a condition of supervised release provided that there is “a reasonably direct relationship … between the defendant’s occupation, business, or profession and the conduct relevant to the offense of conviction” and the imposition of such a restriction is reasonably necessary to protect the public.” The district court found that defendant was in “positions of providing treatment, medical and mental health treatment, when not qualified, and he gets there by way of making false representations” and that he had “been engaged in this kind of conduct for years.” The Second Circuit affirmed the occupational restriction. U.S. v. Gill, 523 F.3d 107 (2d Cir. 2008).
2nd Circuit upholds special conditions of supervised release related to prior unrelated sex offenses. (580) Defendant pled guilty to securities fraud charges. In addition to the mandatory and standard conditions of supervised release, the court imposed several special conditions of supervised released relating to defendant’s prior, but unrelated, crimes of possessing child pornography and traveling in interstate commerce to have sex with a minor. The conditions included participation in a sex offender treatment program and a requirement that defendant register with the state as a sex offender. The Second Circuit held that the imposition of special conditions of supervised release relating to prior sex offenses did not violate the Double Jeopardy clause. The challenge conditions of supervised release were an authorized punishment for defendant’s securities fraud conviction, not a successive punishment for his prior sex offense convictions. Each condition was reasonably related to defendant’s history and characteristics as a sex offender, his need for treatment, and the public’s need for protection from him. U.S. v. Dupes, 513 F.3d 338 (2d Cir. 2008).
2nd Circuit upholds requiring defendant to waive confidentiality of sex offender treatment. (580) As a condition of supervised release, the district court ordered defendant to waive therapeutic confidentiality in connection with court-ordered sex offender treatment. Defendant argued that the condition was an abuse of discretion because it was not reasonably related to his rehabilitation or the protection of the public. Further, he contended that treatment would not be effective without the assurance of confidentiality. The Second Circuit upheld the waiver requirement. While it could be argued that the waiver condition might retard defendant’s treatment, it could also advance his treatment by allowing the probation officer to monitor defendant’s progress and, if necessary, make adjustments to his court-ordered therapy program. Moreover, allowing the probation officer access to information about defendant’s treatment could reasonably further public safety regardless of whether the treatment was effective or not. Therefore, the district court’s determination that the waiver was reasonably related to defendant’s rehabilitation and public safety was not an abuse of discretion. U.S. v. Dupes, 513 F.3d 338 (2d Cir. 2008).
2nd Circuit holds that court is not required to give notice before sua sponte imposing non-guideline revocation sentence. (580) Guideline § 7B1.4 recommended a three-to-nine month sentence for defendant’s violation of supervised release, but the district court sentenced defendant to one year, noting that he received a tremendous break on his original sentence, and that he continued to violate supervised release on multiple occasions. Defendant argued that the district court erred when it failed to give him notice that it intended to impose a sentence outside the range recommended by the guidelines. In U.S. v. Pelensky, 129 F.3d 63 (2d Cir. 1997), decided a decade earlier, the court rejected a similar challenge, ruling that because the guidelines governing the revocation of supervised release were non-binding policy statements, the court was not required to give notice before imposing a revocation sentence outside the recommended sentencing range. The Second Circuit held that Booker did not change this holding. While this court has held that a defendant must receive notice when a judge sua sponte imposes a non-guideline sentence, U.S. v. Anati, 457 F.3d 233 (2d Cir. 2006), abrogated by Irizarry v. U.S., 553 U.S. 708, 128 S.Ct. 2198 (2008), there is a distinction between policy statements and sentencing guidelines. The policy statements relating to violations of supervised release were advisory in 1997, and remain so today. The status of those policy statements has not changed. Anati sought to give vitality to the notice and comment requirements of Rule 32(i)(1)(C) in light of the district court’s continued obligation to consider the appropriate guideline range in determining a procedurally and substantive reasonable sentence. Anati did not alter Pelensky’s holding. U.S. v. Hargrove, 497 F.3d 256 (2d Cir. 2007).
2nd Circuit upholds lifetime term of supervised release for sex offender. (580) Defendant was convicted of multiple child pornography charges. The district court sentenced him to 151 months’ imprisonment and a lifetime term of supervised release. The Second Circuit held that the lifetime term of supervised release was not unreasonable. In fact it is expressly recommended under the guidelines. The upper bound of the supervised-release guideline range for a conviction under 18 U.S.C. § 2252A is life. See U.S.S.G. § 5D1.2, note 1. A guideline policy statement adds that if the current offense is “a sex offense … the statutory maximum term of supervised release is recommended. § 5D1.2(b) (2). While a guideline recommendation does not automatically make a lifetime term of supervised release reasonable, the court also considered the relevant § 3553(a) factors. The court weighed, on the record, defendant’s statistical evidence against congressional findings presented by the government linking sex offenders to recidivism and specifically rebutted defendant’s claim that the link weakens with age (defendant was 68 years old). The court found particularly significant that defendant had been convicted in state court of sexually abusing a 12-year old girl more than a year after the events in this case. Thus, in defendant’s case, there was a correlation between child pornography and molestation of children. U.S. v. Hayes, 445 F.3d 536 (2d Cir. 2006).
2nd Circuit remands for additional findings supporting prohibition against visiting own son. (580) Defendant pled guilty to child pornography charges. The district court imposed several special conditions as part of defendant’s supervised release, including one which prohibited him from time alone with his child absent advance authorization from the probation department. The Second Circuit remanded, finding the record inadequate to determine why the condition was imposed or whether defendant, an unwed father whose son was in foster care, possessed a constitutionally protected liberty interest in visiting his son. The record did not clearly reveal the goal of the condition – if the goal was to protect defendant’s son, then the record would need to be developed, because no danger to the son was established. Neither the offense of conviction nor his prior offense involved defendant’s own child, and the PSR stated that the focus of defendant’s pedophilia was an attraction to females. It was also unclear whether defendant possessed a liberty interest in seeing his son. There was no evidence to support his claim that he had played an active role in the boy’s life, and while he had been attempting to obtain visitation rights, no such rights had yet been granted. Where a child is in foster care, applicable state law prohibits visitation between out-of-wedlock children and a parent whose parental rights have not been adjudicated. U.S. v. Myers, 426 F.3d 117 (2d Cir. 2005).
2nd Circuit upholds special condition requiring defendant to provide financial records to probation officer. (580) One of defendant’s conditions of supervised release required him to provide the probation office “with access to any requested personal and/or business information.” Defendant argued that the condition was not reasonably related to his offense (drug charges), and that courts generally have approved such special conditions only in cases where the sentence included a fine or restitution. The Second Circuit upheld that the financial disclosure special condition, finding that it could be an effective monitoring device of an offender’s finances. This in turn could deter the offender from returning to a life of crime by forcing him to account for his income. Defendant’s “criminal record and sparse employment history demonstrate[d] his pronounced proclivity to support himself through drug dealing.” U.S. v. Brown, 402 F.3d 133 (2d Cir. 2005).
2nd Circuit rejects condition barring former drug dealer from incurring debt. (580) One of the conditions of defendant’s supervised release prohibiting him from incurring any debt, including the use of existing credit cards or private loans, without obtaining prior approval from the probation office. The Second Circuit held that this condition was not reasonably related to the factors courts must consider when imposing special conditions, was a greater deprivation of liberty than necessary, and thus was an abuse of discretion. Defendant’s offense (drug dealing) did not involve the incursion of debt, nor was his debt, as reflected in the PSR, unusually large. Nothing in the record suggested that a total ban on debt accumulation would deter criminal conduct, protect the public or assist in defendant’s rehabilitation. Given defendant’s indigence, the limited use of credit cards or other forms of credit will likely be necessary to facilitate his reintegration into society. U.S. v. Brown, 402 F.3d 133 (2d Cir. 2005).
2nd Circuit upholds condition requiring defendant to register as sex offender in jurisdictions “as applicable.” (580) The district court included as a condition of supervised release a requirement that defendant register as a sex offender in those jurisdictions in which the requirement was “applicable.” The Second Circuit held that the condition requiring registration as a sex offender “where applicable” did not violate the Tenth Amendment. Although the principles of federalism inherent in the Tenth Amendment “must not be transgressed when a federal court exercises its considerable discretion to impose a sentence [that includes] supervised release,” the courts have upheld a condition of supervised release requiring the defendant to pay a fine previously imposed by New York City. See U.S. v. A-Abras, Inc., 185 F.3d 26 (2d Cir. 1999). The requirement to register as a sex offender will precipitate somewhat more activity by state officials than the steps needed to receive a previously imposed fine, but was still a task that the state elected to undertake, and involved no intrusion on state authority. U.S. v. Rosario, 386 F.3d 166 (2d Cir. 2004).
2nd Circuit says challenges to computer limits were premature because dependent on state of computer technology at time of supervised release. (580) Defendant was convicted of transporting child pornography in interstate commerce through the use of a computer. As conditions of supervised release, the district court imposed a number of limitations on defendant’s computer use, including provisions requiring defendant to provide notice of the computers he used, and monitoring and on-site inspection of such computers by the probation office. The Second Circuit held that the conditions were reasonably related to defendant’s offense, but the question of whether they involved a greater deprivation of liberty than reasonably necessary was a question that was governed by the state of computer technology. Because it is impossible to predict the state of computer technology at the commencement of defendant’s supervised release, most of the challenges were premature. For example, one condition authorized the probation officer to install any application to permit remote monitoring of defendant’s computer. The extent to which the “remote monitoring” provision involved a greater deprivation of liberty than reasonably necessary was governed by technological considerations. This technology is rapidly changing, and defendant would not begin to serve his term of supervised release for three years. It was impossible to evaluate at this time whether one method or another, or a combination of methods, would occasion a greater deprivation of his liberty than necessary. The court dismissed the portions of defendant’s appeal regarding the monitoring of defendant’s computer, and directed the court to reconsider the issue at a time closer to defendant’s term of supervised release. U.S. v. Balon, 384 F.3d 38 (2d Cir. 2004).
2nd Circuit applies supervised release statute in effect at time of original offense. (580) At the time defendant committed his original offense and was first sentenced, 18 U.S.C. § 3583(g) required that a person who committed a drug-related violation of supervised release be imprisoned to a term equal to one-third of the period of the supervised release. In 1994, however, Congress amended the statute, eliminating this requirement and giving the court discretion to not order imprisonment if its believed that proper drug treatment services were available. In 1997, one of defendant’s convictions was vacated and he was resentenced on the remaining charges. The Second Circuit held that the version of the supervised release statute in effect at the time of defendant’s original offense governed, rather than the more lenient version in effect when he was resentenced in 1997. U.S. v. Smith, 354 F.3d 171 (2d Cir. 2003).
2nd Circuit upholds prohibition against possessing pornographic material. (580) Defendant drugged a minor female and then videotaped himself sexually assaulting her while she was unconscious. Defendant challenged a condition of supervised release prohibiting his possession or viewing of pornographic material, contending that the condition (1) did not provide adequate notice of what is prohibited, and (2) was not reasonable related to a legitimate sentencing purpose nor sufficiently tailored to serve only such a legitimate purpose. Following U.S. v. Cabot, 325 F.3d 384 (2d Cir. 2003), the Second Circuit concluded that it was not error to impose this condition. While the term “pornography” is “notoriously elusive” for purposes of evaluating artistic or cultural merit, federal law provides considerable guidance as to the meaning of the term under the statute defendant was convicted of violating. The condition was reasonably related to a legitimate sentencing purpose. While incarcerated, defendant refused to participate in a sexual behavior clinic, and was evaluated as “at high risk for general and violent recidivism.” Given that defendant often videotaped his sexual attacks upon his victims, it was reasonable for the judge to conclude that there was a connection between defendant’s viewing and possessing sexually explicit material and his criminal behavior. U.S. v. Simmons, 343 F.3d 72 (2d Cir. 2003).
2nd Circuit holds that omission of condition of supervised release from oral sentence was error. (580) Defendant’s original sentence included, as a condition of supervised release, a prohibition against working on government contracts. At the initial sentencing, defendant did not object to this condition. On appeal, the court reversed several convictions. On remand, the written judgment of conviction and sentence included, as a condition of supervised release, the previously imposed prohibition against working on government contracts, but this condition was not included in the district judge’s oral pronouncement of sentence. The Second Circuit held that the omission of the condition of supervised release from the oral sentence did not comport with Rule 43(a)(3), and remanded for the limited purpose of allowing defendant to contest the occupation restriction. The occupational restriction was not a mandatory or standard condition listed in § 5D1.3(a) and (c), nor a recommended condition listed in subsection 5D1.3(d). U.S. v. Handakas, 329 F.3d 115 (2d Cir. 2003).
2nd Circuit rejects written condition of supervision that was not mandatory or basic administrative requirement. (580) The written judgment included five “special” conditions of supervised release that the district court did not mention when pronouncing sentence. Defendant was required to: (1) provide the probation officer with access to any requested financial information; (2) not incur new credit charges; (3) not possess any identification in the name of another person; (4) report to the nearest probation office within 72 hours of release; and (5) be supervised by the district of residence. In U.S. v. Truscello, 168 F.3d 61 (2d Cir. 1999), the Second Circuit held that a written judgment does not conflict with an oral sentence where a district court fails to specify conditions of supervised release orally, but nevertheless includes in the written judgment conditions listed as mandatory or standard in USSG § 5D1.3(a) or (c). Such conditions are “basic administrative requirement[s].” In U.S. v. Asuncion-Pimental, 290 F.3d 91 (2d Cir. 2002), the court extended Truscello to the special conditions in § 5G1.3(d)(1). The first two special conditions in defendant’s written judgment were listed in § 5D1.3(d)(3) (Access to Financial Information) and § 5D1.3(d)(2) (Debt Obligations) and thus were proper. The fourth and fifth conditions, while not enumerated in § 5D1.3, were clearly basic administrative requirements that were necessary to supervised release. The third condition, however, was not a basic administrative requirement. The Second Circuit refused to extend Truscello to conditions of supervision that are neither mandatory under, not specifically recommended by, the guidelines and are not a basic requirement for the administration of supervised release. The court’s third special condition was not such a condition, and thus it violated Rule 43(a). U.S. v. Thomas, 299 F.3d 150 (2d Cir. 2002).
2nd Circuit says letter grade of offense is determined by statutory maximum, not guideline range. (580) Defendant’s plea agreement specified that the maximum punishment for his offense was “not more than 5 years of imprisonment,” and “not more than a three (3) year period of supervised release, pursuant to 18 U.S.C. § 3583(b)(2). The district court sentenced defendant, pursuant to the plea agreement’s recommendation, to time served (11 and 1/2 months imprisonment) and two years of supervised release. Defendant argued that his personal guideline range, rather than the prescribed statutory maximum, should determined the letter grade of his offense and thus control the length of supervised release. Under defendant’s analysis, he could receive a maximum of one year of supervised release. The Second Circuit rejected this argument, finding that under the plain reading of 18 U.S.C. § 3559, the letter grade of an offense is determined by the statutory maximum, not the defendant’s guideline range. U.S. v. Cunningham, 292 F.3d 115 (2d Cir. 2002).
2nd Circuit upholds conditions of release that were included in written but not oral judgment. (580) The district court orally sentenced defendant to three years of supervised release, but no mention was made of conditions of release. The court’s written judgment included 18 conditions of supervised release; 17 of the conditions were identical or similar to the mandatory and standard conditions provided in the guidelines. The remaining condition, that defendant not “own or possess a firearm or destructive device,” tracked the language of a special condition recommended in USSG § 5D1.3(d). Defendant argued on appeal that the conditions of supervised release should be struck from the written judgment because they were inconsistent with the oral judgment. However, his challenge to the 17 standard and mandatory conditions was foreclosed by U.S. v. Truscello, 168 F.3d 61 (2d Cir. 1999). Standard conditions are “basic administrative requirements[s] essential to the functioning of the supervised release system,” and do not constitute additional punishment. Moreover, one of the mandatory conditions of defendant’s release was that he not commit another offense. As a convicted felon, defendant was barred from possessing a firearm. Thus, the specific condition that defendant not possess a firearm was largely only a clarification of the more general mandatory condition that he not break the law. U.S. v. Asuncion-Pimental, 290 F.3d 91 (2d Cir. 2002).
2nd Circuit holds that ban on computer and Internet access imposed greater deprivation than necessary. (580) Defendant received on his home computer via the Internet more than 1000 images of child pornography. He also used the Internet to exchange images of child porn with others. The district court included a condition of supervised release that prohibited defendant from using a computer or the Internet without the approval of his probation officer. While the condition was reasonably related to the purpose of defendant’s sentencing, the Second Circuit held that the condition inflicted a greater deprivation on defendant’s liberty than was reasonably necessary. A total ban on Internet access prevents use of e-mail, an increasingly widely used form of communication, and prevents other common computer use, such as doing research, getting a weather forecast, or reading a newspaper online. A more focused restriction, limited to pornography sites and images, can be enforced by unannounced inspections of defendant’s premises and examination of material stored on his hard drive or removable disk. Even the restriction as imposed would require monitoring to ensure that defendant was not using a computer. Finally, the government could check on defendant’s Internet usage with a sting operation – surreptitiously inviting him to respond to government placed Internet ads for pornography. U.S. v. Sofsky, 287 F.3d 122 (2d Cir. 2002).
2nd Circuit upholds drug and alcohol treatment as condition of supervised release. (580) The Second Circuit held that the district court did not abuse its discretion by imposing drug and alcohol treatment and tests as a condition of supervised release. Defendant’s PSR indicated that he had a history of drug and alcohol problems, including positive tests in 1988 and 1989 while on federal probation and a 1996 conviction for driving while intoxicated. The report also suggested a connection between his drug and alcohol abuse and his long history of criminal behavior. The court’s imposition of the drug and alcohol conditions was well within its wide discretion to protect the public from further crimes and to rehabilitate the defendant. U.S. v. Chaklader, 232 F.3d 343 (2d Cir. 2000).
2nd Circuit approves upward supervised release departure despite downward imprisonment departure. (580) The district court found that certain factors suggested a high likelihood that defendant would commit future crimes, while other factors suggested that defendant’s criminal history category of VI overstated the risk of recidivism. The court elected to depart from category VI to IV, but at the same time, the court departed upward to a five-year supervised release term as a “hedge” against possible recidivism. In view of the early start to defendant’s criminal career 18 tears before, and the fact that his law-abiding years largely coincided with a previous term of imprisonment, the Second Circuit held that the upward departure was not an abuse of discretion. Further, the upward departure was not “fatally inconsistent” with the downward departure in imprisonment. The sentence reflected the court’s finding that the risk of recidivism was high enough to warrant a prolonged period of supervised release, but not so high as to warrant the range of imprisonment contemplated by defendant’s uncorrected guideline range. U.S. v. Rivera, 192 F.3d 81 (2d Cir. 1999).
2nd Circuit upholds condition of supervised release requiring payment of local fine. (580) Based on defendant’s faulty removal of asbestos from a building, the City of New York ordered him to pay a fine of $22,000. Defendant later pled guilty in federal court to illegally removing asbestos. The district court ordered, as a condition of supervised release, that defendant pay the city fine, at the principal rate of $611.11 per month over three years. The Second Circuit held that principles of federalism did not bar the federal court from requiring payment of a state or local fine in accordance with local law. Such a condition does not interfere with the municipal enforcement scheme per se; it merely specifies the negative federal consequences that would flow from a decision not to comply with the city’s scheme. However, whether a federal court may require payment of a local fine at a rate not imposed by the city is an unsettled question. The Second Circuit affirmed the condition imposed here for two reasons. First, the district court’s decision not to impose a federal fine was motivated by the fact that the city fine had already been imposed. Thus, it was within the court’s discretion to ensure that defendant actually paid the city fine. Second, in the event the city someday requires a rate of payment different from that imposed here, defendant may seek modification of the condition pursuant to 18 U.S.C. § 3853(e). U.S. v. A-Abras Inc., 185 F.3d 26 (2d Cir. 1999).
2nd Circuit requires electronic monitoring of family’s telephone as condition of supervised release. (580) Defendant, once of high-ranking member of the Genovese crime family, was convicted of various RICO charges. The district court ordered that the first 2½ years of supervised release should be “served on home detention, subject to electronic monitoring and the acceptance by the defendant and his family and all residing with him of electronic monitoring by the government of all telephones and other means of communications that are available in the home …” The Second Circuit held that the electronic monitoring was a reasonable condition of supervised release necessary to keep defendant from being in touch with the Genovese Family without the government’s knowledge. Although defendant challenged the electronic monitoring as it affected his wife and daughter, defendant did not have standing to raise the rights of his own family. U.S. v. Bellomo, 176 F.3d 580 (2d Cir. 1999).
2nd Circuit holds that standard conditions of release added to written judgment did not conflict with oral judgment. (580) Defendant asked the district court to delete certain conditions of supervised release that were listed in a written judgment. These conditions were not specifically mentioned when his oral sentence was imposed. The Second Circuit upheld the district court’s refusal to delete the conditions, since the written judgment’s enumeration of the conditions did not conflict with or alter the oral sentence, but merely provided an explanation of what the supervised release entailed. The conditions objected to by defendant were standard conditions that are almost uniformly imposed by the district courts and have become boilerplate. The standards are “basic administrative requirement[s] essential to the functioning of the supervised release system,” such as requiring the defendant to report to the probation officer and answer truthfully all of the officer’s inquiries. During defendant’s plea colloquy, the trial court made it clear that certain conditions would apply to defendant’s term of supervised release, and failure to comply with them would result in imprisonment. At sentencing, the court reiterated that defendant would be required to serve a term of supervised release. The written judgment merely clarified the meaning of that by specifying what the supervision was to entail. U.S. v. Truscello, 168 F.3d 61 (2d Cir. 1999).
2nd Circuit requires payment of tax liability as condition of supervised release. (580) Defendant was convicted of tax evasion. The Second Circuit upheld the requiring defendant to contribute 10 percent of his gross monthly income to his tax liability as a condition of supervised release. This condition does not violate 28 U.S.C. § 3663, which provides for restitution only when the defendant is convicted under certain specified statutes, none applicable here. However, a plain reading of § 3583(d) and § 3563(b) permits a judge to award restitution as a condition of supervised release without regard to the limitations in § 3663(a). Moreover, the 1990 version of § 5E1.1(a) in effect when defendant committed his offense specifically authorized a court to order restitution as a condition of supervised release in all cases, without reference to the limitations in § 3663(a). Recent revisions have been clearer, requiring the judge to order restitution as a condition of supervised release or probation where restitution would be available under § 3663(a) but for the fact that the offense is not within the category of offenses listed in the statute. U.S. v. Bok, 156 F.3d 157 (2d Cir. 1998).
2nd Circuit says court cannot toll supervised release during alien’s exclusion from U.S. (580) Defendant, an alien, was arrested bringing heroin into the U.S. The district court sentenced him to 21 months’ imprisonment, a three-year term of supervised release, and exclusion from the U.S., with the term of supervised release to be suspended upon his exclusion, and resumed upon his reentry into the U.S. The Second Circuit held that the district court lacked authority to toll the supervised release term during defendant’s exclusion from the country. The district court relied on 18 U.S.C. § 3583(d), which allows a court to impose “any other conditions it considers to be appropriate.” However, virtually every “condition” in the statute expressly confines the conduct of the defendant. An order specifying the beginning, running, or ending of the period is not an order to do or refrain from doing something. Moreover, section 3624(e) has an expressly tolls supervised release when the defendant is returned to prison. Finally, 8 U.S.C. § 1228(a)(1) provides that an alien convicted of a drug offense should be subject to special proceedings to assure “expeditious removal” following incarceration and says supervised release is not a reason to defer removal. U.S. v. Balogun, 146 F.3d 141 (2d Cir. 1998).
2nd Circuit approves subjecting defendant to search as supervised release condition. (580) Defendant was convicted of fraud and ordered to pay more than $1 million in restitution. The Second Circuit upheld a condition of supervised release subjecting defendant to searches of his person and property by the probation department to secure information regarding defendant’s finances. The judge stated that she had never seen a defendant obstruct justice more than defendant by consistently lying about records and other information. He concealed documents by stating that they had been stolen, only to present the documents in court. He also posed as an attorney on multiple occasions. To frustrate the investigation of the instant offense, he filed a false complaint against a postal inspector. The judge was appropriately skeptical of defendant’s future willingness to satisfy the restitution order or to disclose accurate and complete financial information upon request. Because defendant’s candor on financial matters was demonstratively untrustworthy, a condition requiring that he submit to searches of his property was reasonable. Searches of defendant’s person might disclose items relevant to his financial condition such as credit cards, checkbooks, receipts, car keys or business cards. U.S. v. Germosen, 139 F.3d 120 (2d Cir. 1998).
2nd Circuit upholds condition of supervised release requiring defendant to return abducted children to U.S. (580) Defendant, an Egyptian citizen residing in the U.S., violated the International Parental Kidnapping Crime Act by abducting his children from their mother and taking them to Egypt. The Second Circuit upheld a special condition of supervised release requiring defendant to return the children to their mother in the U.S. The condition is closely related to “the nature and circumstances of the offense” of child abduction and “the history and characteristics” of defendant. It also serves the goal of general deterrence. Re-imprisoning defendant for violating the special condition would not violate double jeopardy because the entire condition, including the period of supervised release, is punishment for the original crime. The order did not conflict with an Egyptian court’s recent order granting defendant custody over the children. The condition does not seek to settle any underlying custody dispute between defendant and his wife, but merely attempts to restore the status quo prior and deny defendant any legal advantage he gained from the abduction. U.S. v. Amer, 110 F.3d 873 (2d Cir. 1997).
2nd Circuit says § 3583(e)(2) does not permit restitution to be modified for claimed illegality. (580) Defendant was convicted of 17 counts of bank fraud. On direct appeal, he did not dispute the restitution order, and his conviction and sentence were affirmed. He then filed a motion to rescind the restitution order claiming it was improperly based on conduct outside the offenses of conviction. He argued the court had jurisdiction to entertain this motion because restitution was a condition of his supervised release under § 3663(g), and under 3583(e)(2), the sentencing court may modify the conditions of supervised release at any time. The Second Circuit held that illegality of a condition of supervised release is not a basis for modifying supervised release under §§ 3583(e)(2) or 3663(g). A court may modify a condition of release only after considering the factors set forth in § 3553(a). Defendant’s interpretation of § 3583(e)(2) was inconsistent with the scheme of appellate and collateral review established by the Sentencing Reform Act of 1984. U.S. v. Lussier, 104 F.3d 32 (2d Cir. 1997).
2nd Circuit finds judge did not order home detention as condition of supervised release. (580) Defendant argued that the magistrate judge improperly sentenced him to home detention as a condition of his supervised release. The Second Circuit held that the judge did not impose any type of home detention as a condition of supervised release. Although the judge explored with defense counsel and the probation officer the possibility of restricting defendant to his home, no condition of home detention appeared in the judgment and commitment order. Home detention may be imposed as a condition of probation or supervised release, but only as a substitute for imprisonment. The judge sentenced defendant to the maximum possible term of imprisonment. Having made that decision, she could not also sentence him to home detention. U.S. v. Leaphart, 98 F.3d 41 (2d Cir. 1996).
2nd Circuit reverses two year term of supervised release where defendant pled guilty to misdemeanor. (580) Defendant failed to surrender to begin serving a 90-day sentence for misdemeanor bank theft, and later pled guilty to failure to appear. The Second Circuit reversed a two-year term of supervised release because the maximum term that can be imposed in connection with a misdemeanor is one year. Because defendant failed to appear in connection with a sentence for a misdemeanor, he faced only a misdemeanor charge for failure to appear. U.S. v. Leaphart, 98 F.3d 41 (2d Cir. 1996).
2nd Circuit reverses supervised release condition to repay personal debts. (580) Defendant pled guilty to transferring a false identification document. The district court ordered, as a condition of supervised release, that defendant repay his personal debts. The only justification was that defendant’ failure to repay his debts was “basically taking money from these people.” The Second Circuit reversed, finding the release condition was not reasonably related to any of the factors listed in 18 U.S.C. §§ 3553(a)(2) and 3583(d). U.S. v. Abrar, 58 F.3d 43 (2d Cir. 1995).
2nd Circuit okays lifetime term of supervised release, but reverses extent of departure (580) The general statute establishing supervised release terms, 18 U.S.C. § 3583(b), states that “[e]xcept as otherwise provided,” the maximum period of supervised release for Class A and Class B felonies is five years. However, the statute establishing drug offense penalties, 21 U.S.C. § 841(b)(1)(B), provides that for offenses above stated minimum quantities, a sentence must include supervised release term of at least four years. Here, the court departed upward to a lifetime term of supervised release. The 2nd Circuit, relying on U.S. v. Eng, 14 F.3d 165 (2nd Cir. 1994), held that § 841(b)(1)(B) overrides the limitations in § 3583(b). Thus, the district court could impose a lifetime term of supervised release. However, the extent of the departure was unreasonable, because it was based solely on the fact that defendant was arrested for drug trafficking less than two years after having served a four year prison term. U.S. v. Mora, 22 F.3d 409 (2d Cir. 1994).
2nd Circuit says drug statute overrides five year limitation on supervised release. (580) Under 18 U.S.C. § 3583(b), the maximum term of supervised release for Class A and B felonies is five years, unless otherwise provided. But under 21 U.S.C. § 841(b)(1)(A), a sentence for a first-time drug offender must include a term of supervised release of at least five years. The 2nd Circuit approved a lifetime term of supervised release, holding that Congress intended in section 841(b)(1)(A) to override the limitations in section 3583(b). Defendant’s reading would render the “at least” language of section 841(b)(1) irrelevant. More importantly, defendant’s construction ignores the fact that the supervised release terms authorized by Congress for drug offenses, including section 841, were added in the same statute that amended section 3583(b) by adding the phrase “except as otherwise provided.” U.S. v. Eng, 14 F.3d 165 (2nd Cir. 1994).
2nd Circuit finds understatement of maximum term of supervised release was harmless. (580) Defendant’s plea agreement and the district judge at defendant’s plea allocution erroneously understated the maximum term of supervised release for defendant’s crime, while the PSR correctly stated the maximum term. The 2nd Circuit found that the failure to comply with Fed. R. Crim. P. 11 was harmless, because after learning from the PSR that the maximum supervised release term was longer than he expected, defendant made no protest and did not seek to withdraw his plea. Neither at sentencing nor resentencing did defendant seek to withdraw his plea. Finally, during this appeal, defendant confirmed that he did not wish to withdraw his plea, but rather sought to have his supervised release term reduced. Such relief was not available. When a Rule 11 error is made, it is to be corrected by giving the defendant an opportunity to enter a new plea. U.S. v. Renaud, 999 F.2d 622 (2nd Cir. 1993).
2nd Circuit reverses life term of supervised release in absence of grounds for departure. (580) The guidelines provided for a three to five year term of supervised release. Without stating that it was departing, the district court imposed a life term of supervised release. Although defendant failed to object at sentencing to the term of supervised release, the 2nd Circuit ruled that the term constituted clear error. The life term of supervised release was outside the guidelines range. Although departures can be made, a district court is required to state in open court the specific reason for imposing a sentence outside the guidelines range. Here, the sentencing judge announced that he would not be departing from the guidelines. U.S. v. Pico, 966 F.2d 91 (2nd Cir. 1992).
2nd Circuit affirms supervised release even though conspiracy statute did not authorize it. (580) Defendant pled guilty to conspiring to distribute cocaine in violation of 21 U.S.C. section 846. At the time of his offense, November 14, 1988, there was no supervised release provision in section 846. Nevertheless, the 2nd Circuit held that authority for supervised release came from the sentencing guidelines. Section 2D1.4(a) provides that the offense level for conspiracy shall be the same as for the underlying controlled substance offense. Thus, defendant had an offense level of 26, which required a minimum 63 months imprisonment, and under section 5D1.1(a), a term of supervised release. The fact that Congress later amended section 846 to expressly provide for supervised release did not alter this analysis. Additional support for defendant’s term of supervised release was found in 18 U.S.C. section 3583(a), which authorizes the imposition of supervised release for all federal felonies and misdemeanors. Rodriguez v. U.S., 951 F.2d 26 (2nd Cir. 1991).
2nd Circuit reverses failure to apply guidelines to term of supervised release. (580) Defendant was sentenced at the top of his applicable guideline range to a term of 12 months imprisonment, which the district court termed “a gift.” The court then noted that the guidelines did not restrict him as to supervised release, and accordingly sentenced defendant to 20 years supervised release. The 2nd Circuit reversed so that the district court could determine the appropriate term of supervised release within the three to five year term mandated by guideline § 5D1.2(a). The court also rejected defendant’s contention that an upward departure from the guidelines as to supervised release is not permitted if the district court does not also depart as to term of imprisonment. There may be circumstances where the specified term of imprisonment is adequate but the specified term of supervised release is not. U.S. v. Marquez, 941 F.2d 60 (2nd Cir. 1991).
2nd Circuit rules that 10-year term of supervised release exceeded statutory maximum. (580) Defendant was convicted of conspiracy to distribute cocaine. In sentencing defendant, the district court departed upward and imposed a 10 year term of supervised release. The 2nd Circuit reversed, finding that at the time defendant was sentenced, the only punishment for conspiracy was a fine or imprisonment or both, and the only statutory authority for a term of supervised release was 18 U.S.C. 3583(b), which provided a maximum term of three years for a Class C felony. In addition, the district court improperly failed to give advance warning of its intention to depart upward. U.S. v. Cardenas, 917 F.2d 683 (2nd Cir. 1990).
3rd Circuit affirms modification of supervised release to require mental health assessment. (580) Following defendant’s release from prison, the United States Probation Office petitioned to modify the conditions of his supervised release to require that defendant undergo a mental health assessment and, if necessary, participate in an approved mental health treatment program. The district court granted the motion. The Third Circuit held that the district court acted within its discretion in modifying the terms of supervised release. Defendant received a full and fair hearing in accordance with Rule 32.1, and the court gave meaningful consideration to the § 3553(a) factors. The court concluded that a mental health evaluation and, if necessary, mental health treatment, were necessary to protect the public from possible harm. The court found “at the very least there [are] reasonable grounds to believe that [defendant] may not be in complete touch with reality, certainly to the extent that he may possibly commit additional crimes or, perhaps, be a danger to himself or others in the community.” U.S. v. Wilson, 707 F.3d 412 (3d Cir. 2013).
3rd Circuit allows appeal of order modifying supervised release despite waiver. (580) Following defendant’s release from prison, the United States Probation Office petitioned to modify his conditions of supervised release to require him to undergo a mental health assessment and, if necessary, participate in an approved mental health treatment program. The district court granted the motion and defendant appealed. The Third Circuit held that the broad waiver of appeal in defendant’s plea agreement did not bar his appeal of the order modifying the terms and conditions of his supervised release. The court was persuaded by the reasoning of its sister circuits. See U.S. v. Lonjose, 663 F.3d 1292 (10th Cir. 2011); U.S. v. Carruth, 528 F.3d 845 (11th Cir. 2008). A defendant would not reasonably contemplate that a broad, general waiver of appeal from the judgment would foreclose an appeal of a later-imposed condition of supervised release. Defendant’s appellate waiver could reasonably be understood to encompass only a waiver of his right to appeal his “sentence,” that is, what was imposed at sentencing and memorialized in the judgment and commitment order. U.S. v. Wilson, 707 F.3d 412 (3d Cir. 2013).
3rd Circuit says five-year term of supervised release was not incongruous with short prison term. (580) Defendant pled guilty to bank fraud, and was sentenced to a six-month term of imprisonment to be followed by a five-year term of supervised release. The six-month prison term fell below his 12-18-month advisory guideline range, while the supervised release term was the maximum available under the statute. The Third Circuit rejected defendant’s claim that the combination of a below-guidelines prison sentence and a maximum supervised release term was an “incongruity.” The primary purpose of supervised release is to “facilitate the integration of offenders back into the community rather than to punish them.” Because imprisonment and supervised release serve distinct purposes, the district court’s finding that defendant’s conduct, criminal history, and high risk of recidivism warranted a five-year term of supervised release was not incongruous with the court’s decision to impose a relatively short term of imprisonment. U.S. v. Joline, 662 F.3d 657 (3rd Cir. 2011).
3rd Circuit rejects 20-year ban on internet use as not reasonably necessary. (580) Defendant pled guilty to receiving child pornography. As a condition of supervised release (which ran for 20 years), the district court barred defendant from using a computer with access to any “online computer service” without the prior written approval of the probation officer. It also provided for the monitoring of defendant’s computer usage. The Third Circuit struck down the conditions as a greater restraint on defendant’s liberty than reasonably necessary. The ban was quite broad, and has been recognized as too broad unless the defendant had used the internet as an instrument of harm. Since defendant was 60 years old, the length of the ban, 20 years, was effectively a lifetime ban. Ultimately, the court concluded that while the 20-year term of supervised release was not improper, the internet use restriction was too restrictive. “In a time where the daily necessities of life and work demand not only internet access but internet fluency, sentencing courts need to select the least restrictive alternative for achieving their sentencing purposes.” U.S. v. Albertson, 645 F.3d 191 (3d Cir. 2011).
3rd Circuit approves condition of supervised release barring contact with children outside family. (580) Defendant pled guilty to receiving child pornography. As a condition of supervised release (which ran for 20 years), the district court banned defendant from associating with children under the age of 18 (with the exception of his children) except in the presence of an adult approved by the Probation Officer. The Third Circuit held that the evidence supported the condition. At the time of his sentencing, defendant had been charged with, among other things, indecent assault on his then 13- or 14-year-old stepdaughter, and he had since been convicted of that crime. U.S. v. Albertson, 645 F.3d 191 (3d Cir. 2011).
3rd Circuit finds extraordinary circumstances warranted review of supervised release conditions. (580) In his opening brief, defendant argued only that his 20-year term of supervised release was unreasonable. However, in his reply brief, he argued for the first time that several conditions of release were unreasonable, citing U.S. v. Miller, 594 F.3d 172 (3d Cir. 2010). An appellant’s failure to argue an issue in his opening brief usually constitutes waiver of that issue on appeal, absent “extraordinary circumstances.” The Third Circuit adopted the following principles for deciding whether there are extraordinary circumstances: whether there is some excuse for the failure to raise the issue in the opening brief; how far the opposing party would be prejudiced; and whether failing to consider the argument would lead to a miscarriage of justice. Applying the facts to defendant’s case, the balance weighed in favor of reviewing the merits of defendant’s claims. Defendant’s reason for failing to raise the issue in his opening brief was not compelling. However, the second two factors weighed against waiver. The government would suffer no prejudice, since it was permitted to file a sur-reply, and then failed to meaningfully present its waiver argument in the sur-reply. The miscarriage of justice factor also weighed against waiver, since one of the challenged conditions was directly contrary to a line of cases governing the propriety of internet restrictions for child porn offenders. U.S. v. Albertson, 645 F.3d 191 (3d Cir. 2011).
3rd Circuit upholds five-year restriction on Internet access. (580) Defendant pled guilty to possessing child pornography. He argued that a special condition of supervised release limiting his access to the Internet was unduly restrictive given that he never contacted a minor for sex. The Third Circuit held that the supervised release restriction was reasonable. Although defendant did not use the Internet to exploit a person that was actually a minor, he did contact “Nate,” a fictitious 18-year-old person created by police, and explicitly stated that he was interested in “young guys your age and under.” Moreover, defendant was clearly willing to use the Internet to facilitate a sexual encounter. He directed “Nate” to a website featuring images of himself engaging in sexual acts and expressed a desire to “meet and have some good fun together.” Defendant’s expressed interest in minors, when coupled with his demonstrated willingness to use the Internet as a means for arranging sexual encounters, presented a tangible risk to children. The duration of the restriction (five years), and the scope of the restriction (restriction applied to Internet, not all computer use, with exceptions permitted by probation office), was reasonable. U.S. v. Maurer, 639 F.3d 72 (3rd Cir. 2011).
3rd Circuit upholds five-year restriction on contact with minors. (580) Defendant pled guilty to possessing child pornography. As a condition of supervised release, the district court barred defendant from having any contact with children under 18 without approval of the probation office. The Third Circuit rejected defendant’s argument that the condition was overly broad and amounted to an excessive delegation of authority to the probation office. Defendant’s condition was of limited effect given his age and circumstances. Each of defendant’s children was an adult. Moreover, the condition here lasted only five years, unlike the condition struck down in U.S. v. Voelker, 489 F.3d 144 (3rd Cir. 2007). U.S. v. Maurer, 639 F.3d 72 (3rd Cir. 2011).
3rd Circuit says lifetime limit on defendant’s Internet use was broader than necessary. (580) Defendant was convicted of receiving and possessing child pornography. One condition of supervised release barred defendant for life from using a computer with access to any online computer service, without prior written approval of the probation officer. A second condition required defendant to submit to monitoring of his computer. The Third Circuit found that the limitation on defendant’s access to the Internet was overly restrictive while the condition providing for computer monitoring was narrowly tailored and reasonable. For the rest of his life, defendant was confined to using a computer that did not have online access unless he received approval from his probation officer. On remand, the district court could impose a restriction on defendant’s computer use and Internet access and could require computer monitoring, but any such conditions must be tailored and in accordance with 18 U.S.C. § 3583(d)(2). In crafting the conditions, the district court should consider their scope, both duration and substantive breadth, as well as their relationship to the facts underlying defendant’s conviction. U.S. v. Miller, 594 F.3d 172 (3d Cir. 2009).
3rd Circuit upholds requiring defendant to participate in sex offender treatment program. (580) Defendant was convicted of receiving and possessing child pornography. As a special condition of release, the district court ordered defendant to participate in a sex offender treatment program. Defendant argued that the requirement was not reasonably related to his history and characteristics, and that the record did not support a finding that he had a propensity to commit any further sex crimes. Although only 11 of the hundreds of images of pornography he possessed involved children, the offense was still a sex offense. Possession of even a small number of images of child porn contributes to the victimization of children and creates a market for child abuse. Moreover, there was ample evidence of Congress’s intent that offenses involving child pornography be treated severely. Sex offender treatment is reasonably related to these deterrent and preventive goals. The Third Circuit upheld the condition requiring defendant to participate in a sex offender treatment program. U.S. v. Miller, 594 F.3d 172 (3d Cir. 2009).
3rd Circuit rejects as overbroad condition barring defendant from associating with children under 18. (580) Defendant was convicted of receiving and possessing child pornography. As a special condition of supervised release, the court barred defendant from associating with children under the age of 18 except in the presence of an adult who had been approved by the probation officer. Defendant argued that the record did not support the conclusion that he was a danger to minors, and complained that the condition prohibited him from being in contact with family members under the age of 18, which severely restricted his ability to engage in family gatherings. The district court later modified the condition to allow for contact with family members under the age of 18. The Third Circuit agreed that the condition as originally written was overbroad. On remand, the court could include the modified version of the special condition in defendant’s new sentence. U.S. v. Miller, 594 F.3d 172 (3d Cir. 2009).
3rd Circuit holds that condition barring access to any Internet for life was too broad. (580) Defendant was convicted of transporting child pornography. As a special condition of supervised release, defendant was prohibited “from access to any Internet service provider, bulletin board system, or any other public or private computer network” for the remainder of his life, without exception. The Third Circuit held that the restriction was too broad, and reversed. If approved, defendant’s ban would be the most restrictive Internet ban that the circuit had ever permitted, both in terms of the length and coverage of the ban itself and the nature of defendant’s underlying conduct. It was much longer than the three and ten year bans recently approved, and had no provisions allowing for access to the Internet on approval by the Probation Office. Finally, if upheld, this would be the first time the circuit upheld an Internet ban for a conviction involving the transmission of child pornography rather than the direct exploitation of children. Defendant had never been convicted of criminal behavior that involved the use of the Internet either to lure a minor into direct sexual activity or to entice another to exploit a child directly. U.S. v. Heckman, 592 F.3d 400 (3d Cir. 2010).
3rd Circuit upholds mental health treatment requirement. (580) Defendant was convicted of transporting child pornography. As a special condition of supervised release, the district court ordered defendant to participate in a mental health program “for evaluation and/or treatment as directed by the United States Probation Office. Defendant shall remain in treatment until satisfactorily discharged with the approval of the United States, including sex offender treatment.” The Third Circuit found ample support in the record for this condition, and rejected defendant’s argument that the condition delegated too much authority to the probation office. It was possible to read the phrase “shall participate in a mental health program for evaluation and/or treatment” as allowing the Probation Office to order evaluation but not treatment, a potentially impermissible delegation of authority. However, the second sentence, which states that defendant “shall remain in treatment …” was most naturally read as requiring mandatory treatment and thus limited the Probation Office’s discretion. Participation in the mental health program itself was mandatory, and only the details were to be set by the Probation Office. U.S. v. Heckman, 592 F.3d 400 (3d Cir. 2010).
3rd Circuit rejects delegating discretion to probation office to determine permissible contact with children. (580) Defendant was convicted of transporting child pornography. As a special condition of supervised release, the district court ordered defendant to “follow the directions” of the probation office “regarding any contact with child of either sex under the agent of 18.” In addition, defendant was barred from being employed or volunteering in any capacity that included “contact with minor children.” On its face, this condition delegated full discretion over defendant’s contact with minors to the probation office. The government conceded that his condition should be rejected as an improper delegation of authority to the probation office and remanded for further clarification, and the Third Circuit agreed. A court may not delegate to a probation officer the authority to “decide the nature or extent of the punishment.” U.S. v. Heckman, 592 F.3d 400 (3d Cir. 2010).
3rd Circuit upholds restriction on viewing sexually explicit material involving adults where defendant commingled adult and child sexual conduct. (580) Defendant pled guilty to receiving child pornography. The district court ordered, as special conditions of release, restrictions on defendant’s computer use and his viewing of sexually explicit material. The Third Circuit affirmed both conditions. There was a significant nexus between restricting defendant from access to adult “sexually explicit” material and the goals of supervised release. Defendant commingled adult and child sexual conduct – he used pornographic images of children in order to seduce heterosexual males, and his sexual experiences with adults and adult pornography were inextricably linked to his sexual interest in children. Thus, defendant’s exposure to sexual material, even involving only adults, would contribute to future offenses. The rationale for the computer restriction was self-evident. The offense evolved from defendant’s use of a computer and the internet. The restriction was not too broad – he could own or use a personal computer as long as it was not connected to the internet, and could seek permission from the probation office to use the internet during the term of his 10-year restriction. U.S. v. Thielemann, 575 F.3d 265 (3d Cir. 2009).
3rd Circuit says court cannot toll supervised release while defendant is out of country. (580) Defendant pled guilty to illegal reentry into the U.S. The district court sentenced defendant to 71 months in prison and three years of supervised release. As a “special condition of supervision,” the court ordered that defendant’s term of supervised run “inactive if the defendant is deported. Should the defendant re-enter the United States after deportation, such action will be considered a violation of supervised release.” The Third Circuit held that such tolling exceeded the district court’s power to set conditions of supervised release. Tolling is not a condition of supervised release. Rather, it is a suspension of the supervised release period, a way of removing the defendant from the effects of his sentence for a specific period of time. The error was plain. Even though the district court had no precedent from the Third Circuit to guide its decision, all of the other circuits that have addressed the issue have found that such tolling is impermissible based upon the statutory provisions. U.S. v. Cole, 567 F.3d 110 (3d Cir. 2009).
3rd Circuit holds that waiver of appeal waived right to appeal condition of supervised release. (580) Defendant waived, in his plea agreement “the right to take a direct appeal from his conviction or sentence under 28 U.S.C. §1291 or 18 U.S.C. §3742” unless the government appealed or the sentence exceeded the statutory maximum or the advisory guideline range. Defendant brought an appeal to challenge a condition of supervised release, arguing that it was excepted from the appellate waiver because it was not among either the mandatory or discretionary conditions set forth in the U.S. Code, and thereby exceeded the applicable statutory limits. The Third Circuit disagreed. The plain text of 18 U.S.C. 3583(d) provides that the court may order, as a further condition of supervised release “any other condition it considers to be appropriate.” The waiver included the right to appeal the special condition of supervised release. The term “sentence” as used in the appellate waiver, applies not only to the period of incarceration, but also any other component of punishment. U.S. v. Goodson, 544 F.3d 53 (3d Cir. 2008).
3rd Circuit says lifetime ban on computer use and internet access was overbroad. (580) Defendant pled guilty to possessing child pornography, and was sentenced to 71 months’ imprisonment followed by a lifetime term of supervised release. As a condition of supervised release, the district court prohibited defendant from accessing any computer equipment at any location, including employment or education. The Third Circuit held that the lifetime ban on using computers and accessing the Internet, with no exception for employment or education, involved “a greater deprivation of liberty than [was] reasonably necessary and [was] not reasonably related to the factors set forth in 18 U.S.C. § 3583.” The district court did not explain its reasons for imposing such an unprecedented and sweeping lifetime restriction. The case was distinguishable from the three-year ban approved in U.S. v. Crandon, 173 F.3d 122 (3d Cir. 1999). The restrictions here bore no resemblance to the narrowly tailored sanctions that are required by § 3553(a). The ban effectively constituted an occupational restriction. Defendant worked as a respiratory therapist, and he would not be able to remain employed absent access to computer equipment. U.S. v. Voelker, 489 F.3d 139 (3d Cir. 2007).
3rd Circuit rejects lifetime ban on possessing sexually explicit material. (580) Defendant pled guilty to possessing child pornography, and was sentenced to 71 months imprisonment followed by a lifetime term of supervised release. As a condition of supervised release, the district court prohibited defendant from possessing any textual or visual descriptions of “sexually explicit conduct.” The Third Circuit vacated the condition as overbroad, since it barred defendant from possessing sexually explicit material involving adults. Although a ban on accessing sexual explicit material involving children would be reasonable here, there are First Amendment implications for a ban that extends to explicit material involving adults. U.S. v. Voelker, 489 F.3d 139 (3d Cir. 2007).
3rd Circuit holds that restrictions on associating with minors lacked clarity. (580) Defendant pled guilty to possessing child pornography, and was sentenced to 71 months imprisonment followed by a lifetime term of supervised release. As a condition of supervised release, the district court prohibited defendant from associating with minors without the prior approval of the probation officer and mandated that any such contact be in the presence of an adult who was familiar with defendant’s criminal background. The Third Circuit remanded for clarification as to whether the restrictions applied to defendant’s own children. Although there was evidence that defendant might be capable to exploiting his own children, it was not clear that the court intended the lifetime ban on associating with minors to extend to his own children. However, any lifetime ban on associating with minors should be supported by sufficient evidence to resolve the dispute over whether defendant was simply role-playing when he offered his minor daughter for sex over the Internet. In addition, the court delegated absolute authority to the probation office to allow such contacts while providing no guidance whatsoever for the exercise of that discretion. U.S. v. Voelker, 489 F.3d 139 (3d Cir. 2007).
3rd Circuit holds that job offer after sentencing changed circumstances to give court authority to modify conditions of release. (580) Defendant pled guilty to wire fraud in connection with a scheme in which he held himself out as a legal consultant and misrepresented his ability to broker a deal. At the time he was sentenced, he had no offer to work, and the district court did not impose an occupational restriction on his term of supervised release. However, after he received an offer to work for a law firm while he was on supervised release, the government petitioned the district court to modify defendant’s term of supervised release to impose an occupational restriction barring defendant from seeking or obtaining any type of employment with a law firm or any other entity where defendant would have access to personal information of legal or business clients. The Third Circuit held that the job offer constituted “a new unforeseen circumstance” that permitted modification of the conditions of defendant’s supervised release. 18 U.S.C. § 3583(e). The occupational restriction was proper – there was a reasonably direct relationship between defendant’s employment as a paralegal in a law office and his conduct in the current offense. U.S. v. Smith, 445 F.3d 713 (3d Cir. 2006).
3rd Circuit rejects mental health condition of release where there was no evidence of need for treatment. (580) As a condition of supervised release, the district court required defendant to “participate in a mental health treatment program at the discretion of the probation officer.” The statute allows a court to impose a condition of supervised release to the extent that the condition “is reasonably related” to certain factors set forth in § 3353(a)(1) and (2) and involves no greater deprivation of liberty than is reasonably necessary to achieve the § 3353(a)(2) purposes. The Third Circuit held that the district court erred in imposing the mental health condition. The district court did not point to any evidence that any of the § 3553(a) factors were present. As for § 3553(a) (1), neither the “nature and circumstances of the offense,” here the attempt to purchase a weapon illegally, nor the “history and characteristics of the defendant,” provided any evidence of a need for mental health treatment. The PSR tended to show that defendant had a good mental state with no history of mental illness. The condition was also invalid because it delegated to defendant’s probation officer the decision whether to require mental health treatment. U.S. v. Pruden, 398 F.3d 241 (3d Cir. 2005).
3rd Circuit holds that total ban on Internet access was overly broad. (580) Defendant pled guilty to the receipt and possession of child pornography. The district court imposed a special supervised release condition that prohibited defendant from keeping any computer equipment in his home and barred him from accessing the Internet without permission of his probation officer. The Third Circuit agreed with defendant that a special condition forbidding him from possessing any computer in his home or using any on-line computer service without the written approval of the probation officer was overly broad. See U.S. v. Sofsky, 287 F.3d 122 (2d Cir. 2002). A total ban on Internet access prevents use of email, a widely used form of communication, and other common-place computer uses such as getting a weather forecast or reading a newspaper online. There was no need to cut off defendant’s access to email or benign Internet usage when a more focused restriction, limited to pornography sites and images, could be enforced by unannounced inspections of material stored on defendant’s hard drive or removable disks. Unlike the defendant in U.S. v. Lee, 315 F.3d 206 (3d Cir. 2002), defendant did not have a past history of using the Internet to contact children. U.S. v. Freeman, 316 F.3d 386 (3d Cir. 2003).
3rd Circuit upholds random polygraph exams as condition of supervised release. (580) Defendant pled guilty to child pornography charges and enticing a minor by computer to engage in sex. The judge imposed a condition of supervised release which required defendant to submit to random polygraph examinations at the discretion of the probation officer. The Third Circuit held that the condition did not violate the 5th Amendment and was not an abuse of discretion. The condition did not require defendant to answer incriminating questions. The condition was neither unnecessary nor overly burdensome, and could provide an added incentive for defendant to furnish truthful testimony to the probation officer. The condition was not an abuse of discretion. It was based upon the Federal Correctional Institution’s psychological evaluation of defendant. The report was made available to defendant’s counsel prior to sentencing. Finally, the condition was reasonably related to the protection of the public and defendant’s rehabilitation. U.S. v. Lee, 315 F.3d 206 (3d Cir. 2003).
3rd Circuit holds that § 3583 does not limit supervised release terms under § 841. (580) Defendant argued that his ten-year supervised release term violated Apprendi v. New Jersey, 530 U.S. 466 (2000). The statutory provision governing offenses involving an unspecified quantity of cocaine, 21 U.S.C. § 841(b)(1)(C), provides for up to 30 years’ imprisonment and at least six years of supervised release. Defendant’s supervised release term thus did not exceed the statutory maximum in § 841(b)(1)(C). However, defendant argued that the ten-year term exceeded the maximum contained in 18 U.S.C. § 3583, which limits the maximum term of supervised release from one to five years for varying classes of felonies, “[e]xcept as otherwise provided.” The Third Circuit held that § 3583 does not impose a limit on the terms of supervised release available under § 841. Although this argument has been accepted by the Fifth Circuit, see U.S. v. Kelly, 974 F.2d 22 (5th Cir. 1992), several other circuits court have rejected this view. See, e.g. U.S. v. Sanchez, 269 F.3d 1250 (11th Cir. 2001) (en banc); U.S. v. Combs, 267 F.3d 1167 (10th Cir. 2001). The plain meaning of § 3583 is that it always yields to other statutes, such as § 841, that specifically provide terms of supervised release. Any other reading fails to give full effect to the language “except as otherwise provided.” U.S. v. Sanchez-Gonzalez, 294 F.3d 563 (3d Cir. 2002).
3rd Circuit holds that misleading defendant as to maximum supervised release term was harmless. (580) Defendant’s plea agreement expressly stated that the court could not impose more than three years of supervised release. Also, the prosecutor stated the same thing at the Rule 11 change of plea hearing, and that statement was never corrected by the court. However, defendant’s sentence included a five-year term of supervised release, as allowed under 18 U.S.C. § 924. The Third Circuit held that the incorrect advice was harmless error. The court refused to adopt a blanket rule stating that a failure to explain a supervised release term is harmless error if the term of incarceration imposed, combined with the term of supervised release imposed, is less than the maximum sentence the defendant was aware of. Rather, a court should make “an individualized and flexible inquiry” that focuses upon whether “the misinformation” led the defendant to expect a lesser penalty than he actually received. U.S. v. Raineri, 42 F.3d 36 (1st Cir. 1994). An error will be regarded as harmless under Rule 11 only if the government can establish that the error is unlikely to have affected a defendant’s willingness to waive his or her rights and plead guilty. Here, given defendant’s criminal history, a statutory maximum of life imprisonment, and defendant’s knowledge that the court had to impose at least the 15-year mandatory minimum, it was unlikely that the error in informing him of his supervised release affected his decision to plead guilty. U.S. v. Powell, 269 F.3d 175 (3d Cir. 2001).
3rd Circuit upholds condition of release barring defendant from certain counties without permission. (580) The district court imposed a special condition of supervised release that prevented defendant from entering Lehigh and Northampton counties, in Pennsylvania, without permission from her probation officer. Defendant grew up in this area and was pushed at an early age by family and friends towards a life of crime and drug use. When as a teenager, she made an attempt at reform, her associates quickly pulled her back into a life a crime. When in prison, she made strong progress toward turning her life around through drug treatment and college classes. She also admitted to feeling significant anxiety whenever she was in the area. The Third Circuit upheld the geographic restriction. There was ample evidence that if defendant were to return to the location and associates that shaped her youth, she would be extremely likely to return to a life of crime. Thus, the special condition was related to “the history and characteristics of the defendant,” and also served to promote rehabilitation consistent with § 3553(a)(2)(D). The condition did not effectively “banish” her from the two counties, deny her the ability to care for her mother, or force her to abandon her children or relocate them. The prohibition was not absolute, because defendant could enter either county with the permission of her probation officer. U.S. v. Sicher, 239 F.3d 289 (3d Cir. 2000).
3rd Circuit holds that challenge to supervised release condition was justiciable. (580) Defendant argued that a condition of supervised release, barring him from possessing “all forms of pornography, including legal adult pornography,” was vague and overbroad. The government argued that defendant’s challenge was not justiciable, contending on grounds of ripeness and standing that defendant must wait until he was facing revocation proceedings before he could raise his claim. The Third Circuit held that defendant’s challenge to his supervised release condition was not only justiciable, but considering it at this time promoted judicial efficiency and was in keeping with demonstrated congressional intent that sentences be reviewed on direct appeal. As to ripeness, not knowing the scope of the pornography condition was, in itself, a hardship. The government’s claim that defendant should wait until he faced revocation proceeding before being permitted to challenge the condition was at odds with Supreme Court precedent. See Steffel v. Thompson, 415 U.S. 452 (1974). The question was a purely legal one and so was fit for judicial review. The panel also rejected the government’s claim that defendant would not have standing to raise his claim until the condition was applied to his specific conduct. The traditional canons against hearing vagueness challenges prior to a statute’s application are inapplicable in the context of supervised release conditions. U.S. v. Loy, 237 F.3d 251 (3d Cir. 2001).
3rd Circuit holds that prohibition against possessing all forms of pornography was unconstitutionally vague. (580) Defendant argued that a condition of supervised release, barring him from possessing “all forms of pornography, including legal adult pornography,” was vague and overbroad. The Third Circuit agreed. The term “pornography” has never received a precise legal definition from the Supreme Court or any other federal court of appeals. Definitions in various dictionaries are instructive in a general way, but they clearly lack the greater precision of the test for obscenity in Miller v. California, 413 U.S. 15 (1973). There are numerous examples of sexually explicit material that one could not definitively say was or was not pornographic. The government’s suggestion of interpreting the provision to add a scienter requirement did not solve the problem. This did not mean that a court cannot impose restrictions on the consumption of sexually explicit materials by persons convicted of sex crimes. However, the pornography restriction, as currently written, violated due process by failing to provide defendant with adequate notice of what he could and could not do, chilling his First Amendment rights in the process. The district court could restrict defendant’s “access to sexually oriented materials, so long as that restriction was set forth with sufficient clarity and with a nexus to the goals of supervised release.” U.S. v. Loy, 237 F.3d 251 (3d Cir. 2001).
3rd Circuit upholds restriction on unsupervised contact with minors. (580) The district court barred defendant, as a condition of supervised release, from having unsupervised contact with minor children, and further specifying that the requisite supervision must come from someone other than his wife. Defendant argued that this condition was vague, unsupported by the record, and could also potentially inhibit his ability to have and raise his own children. The Third Circuit held that the condition was supported by the record. Defendant twice admitted to an undercover agent that he secretly filmed up young girls’ dresses on escalators at the local mall by placing a bag containing a hidden video camera at their feet. Although defendant contended that the restriction was vague, because it could potentially extend to casual encounters, the panel ruled that accidental or unavoidable contact with minors in public places was not forbidden by the condition. Finally, although defendant and his wife currently have no children, it was possible they might have some while he was on supervised release. Given the severe intrusion on defendant’s family life that would otherwise result, the panel ruled that the condition should be construed to apply only to other people’s children, and not defendant’s own. If at some later date the court comes to believe that the condition should be extended to defendant’s own children, it may consider modification to the condition. U.S. v. Loy, 237 F.3d 251 (3d Cir. 2001).
3rd Circuit upholds limit on Internet access as condition of supervised release. (580) Defendant, a 39-year old New Jersey resident, met a 14-year old girl from Minnesota on the Internet. He eventually traveled to Minnesota, engaged in sexual relations with the girl, and took about 48 photos of her. Two of the photos were sexually explicit. After returning to New Jersey, he had the film developed by a mail-order film processor in another state. Defendant pled guilty to receiving child pornography. The Third Circuit upheld a special condition of supervised release limiting defendant’s access to and use of the Internet. The condition was reasonably related to the defendant’s criminal activities, to the goal of deterring him from engaging in further criminal conduct, and to protecting the public. Although the condition might hamper defendant’s employment opportunities upon release and limit his freedom of speech and association, the restriction was permissible because it was narrowly tailored and directly related to deterring defendant and protecting the public. U.S. v. Crandon, 173 F.3d 122 (3d Cir. 1999).
3rd Circuit reverses conditioning supervised release on repayment of cost of court-appointed counsel. (580) During defendant’s fraud trial it was discovered that his financial affidavit, submitted as part of his application for court-appointed counsel, misrepresented his joint income as $48,000, rather than $104,000. At sentencing, the court ordered him to repay the cost of his attorney as a condition of supervised release. The Third Circuit held this was plain error. A condition of supervised release must be related to the factors listed in § 3553(a)–the nature of the offense and the defendant, and the need for the sentence to afford adequate deterrence, protect the public, and provide the defendant with needed education or other correctional treatment. Although the false statements were similar to the offense in question, the reimbursement condition was not imposed because of defendant’s misstatements, but because of his financial ability. Requiring the repayment of counsel fees would not likely deter crime, protect the public, or serve any rehabilitative function. Although the court did have the power to order reimbursement of counsel fees under the Criminal Justice Act, 18 U.S.C. § 3006A, it could not make compliance with that order a condition of supervised release. U.S. v. Evans, 155 F.3d 245 (3d Cir. 1998).
4th Circuit reverses sex offender conditions of supervised release imposed on drug defendant. (580) Because of defendant’s prior record as a sex offender, the district court imposed federal Tier II sex offender conditions of supervised release, as set forth in a standing order for federal sex-offense convictions. Although defendant’s drug-related offense was not a sex offense, the district court applied the standing order to defendant because he had been convicted 12 years ago in state court for sex crimes committed when he was 21. The conditions included prohibitions against any unsupervised contact with any child, residing in or visiting any residence where minor children lived, and forming any relationship with a person who had physical custody of a child under the age of 18. The Fourth Circuit held that the district court plainly erred in imposing such restrictive conditions—specifically as they affected defendant’s relationship with his family—in the absence of any explanation. The district court based its determination on defendant’s 12-year-old state convictions. However, these convictions did not indicate whether he currently posed a threat to his family and loved ones. As the PSR noted, defendant was not prohibited from seeing his young children while on state supervision for his sex-offense convictions, nor was he barred years later from living with his girlfriend and their toddler. There was nothing in the record that suggested defendant was a danger to his children or girlfriend. U.S. v. Worley, 685 F.3d 404 (4th Cir. 2012).
4th Circuit reverses “very rigid” conditions of release imposed without explanation. (580) Based on a rambling, threatening phone message defendant left at an FBI office, he was convicted of threatening federal officials, in violation of 18 U.S.C. § 115(a)(1)(B). At sentencing, the district court imposed what it characterized as “very rigid” special conditions of supervised release. In addition to requiring defendant to receive psychiatric treatment, the court also ordered that he not possess pornography, not enter places where pornography could be obtained, not have contact with children, and submit to invasive sex offender tests. The Fourth Circuit reversed. While the court accurately described the special conditions as “very rigid,” it offered no explanation as to their necessity in defendant’s case. There was no basis for determining whether they were reasonably related to the factors referred to in 18 U.S.C. § 3583(d)(1) and involved “no greater deprivation of liberty than is reasonably necessary.” The pornography prohibition seemed particularly inexplicable. U.S. v. Armel, 585 F.3d 182 (4th Cir. 2009).
4th Circuit upholds as condition of release polygraph and penile plethysmograph test for sex offender. (580) Defendant pled guilty to attempting to receive in commerce a child pornography videotape. As a special condition of supervised release, the district court required defendant’s participation in a mental health program with sex offender treatment, and stated such treatment “may include physiological testing such as the polygraph and penile plethysmograph, [and] the use of prescribed medications.” The Fourth Circuit held that the district court did not abuse its discretion in providing for the possible use of physiological testing by devices such as a polygraph or penile plethysmograph test in conjunction with the sex offender treatment. Previous cases have found that the plethysmograph test is “useful for treatment of sex offenders.” U.S. v. Powers, 59 F.3d 1460 (4th Cir. 1995). Thus, the district court clearly acted within its discretion in imposing this condition on defendant’s release. The test was “reasonable related” to the statutory factors referred to in § 3583(9d)(1) because it is aimed at providing defendant with treatment, fostering deterrence, and protecting the public. Although a polygraph test is inadmissible at trial, the use of the polygraph was not aimed at gathering evidence to inculpate or exculpate defendant. Rather, the test was contemplated as a potential treatment tool upon defendant’s release from prison. U.S. v. Dotson, 324 F.3d 256 (4th Cir. 2003).
4th Circuit holds that sentence and supervised release term did not violate Apprendi. (580) Defendant argued that the court erred in enhancing his prison sentence, and in imposing a sentence of eight years of supervised release, based on an amount of drugs that were not charged in the indictment or proved beyond a reasonable doubt to the jury. See Apprendi v. New Jersey, 530 U.S. 466 (2000). The Fourth Circuit held that defendant’s 210-month sentence did not violate the rule in Apprendi because it did not exceed the prescribed statutory maximum sentence for the offense of conviction. Since defendant had a prior felony drug conviction, the maximum sentence he could have received without regard to drug quantity was 30 years. See 21 U.S.C. § 841(b)(1)(C). The eight-year term of supervised release also did not violate Apprendi. Section 841(b)(1)(C) provides that, without regard to drug amount, a defendant who has a prior felony conviction is subject to a term of supervised release of at least six years. Six years is the statutory minimum, not a statutory maximum. U.S. v. Osteen, 254 F.3d 521 (4th Cir. 2001).
4th Circuit holds that § 3583 does not cap period of supervised release under drug statute. (580) Defendant argued that his five-year term of supervised release violated Apprendi v. New Jersey, 530 U.S. 466 (2000). The Fourth Circuit disagreed, ruling that three years is not the maximum term of supervised release permitted by § 841(b)(1)(C). The statute says that the court shall impose a term of supervised release “of at least” three years. Contrary to defendant’s claim, 18 U.S.C. § 3583 does not cap the period of supervised release that a court may impose under § 841(b)(1)(C). Section 3583 states that [e]xcept as otherwise provided, the authorized term[] of supervised release … for a Class C … felony [is] not more than three years.” This cap does apply to statutes, such as § 841(b)(1)(C), whose own mandatory minimum periods of supervised release are the same as, or exceed, the maximum periods provided by § 3583. U.S. v. Pratt, 239 F.3d 640 (4th Cir. 2001).
4th Circuit refuses to reduce supervised release for defendant imprisoned too long. (580) Defendant filed a motion under 18 U.S.C. § 3583(e) to terminate his supervised release term because his initial sentence had been miscalculated, and he allegedly remained in prison for 32 months too long. The district court concluded that defendant’s conduct and his extensive criminal history did not warrant a termination of his supervised release. The Fourth Circuit held that the district court did not abuse its discretion in refusing to terminate defendant’s supervised release. Section 3583(e) allows a court to terminate a term of supervised release “if it is satisfied that such action is warranted by the conduct of the defendant released and the interests of justice.” Defendant did not dispute that the district court’s observations regarding his criminal history were correct. Because the district court followed the statutory mandate to consider both defendant’s conduct and the interests of justice, the court did not abuse its discretion under the plain terms of 18 U.S.C. § 3583(e). Even construing defendant’s action as a motion for habeas corpus relief under 28 U.S.C. § 2255, defendant’s motion failed. Barring extraordinary circumstances, an error in the application of the guidelines does not provide a basis for § 2255 relief. U.S. v. Pregent, 190 F.3d 279 (4th Cir. 1999).
4th Circuit upholds imposing supervised release on revocation of parole. (580) After defendant violated his parole in numerous ways, the district court revoked the parole and sentenced defendant to six months in prison and three years supervised release. The Fourth Circuit upheld the court’s authority to impose supervised release upon revocation of parole. When a defendant violates a condition of probation, § 3553(a) permits a court to revoke probation and impose any other sentence that was available under subchapter A at the time of the initial sentencing. The available sentences listed in subchapter A include a term of imprisonment as authorized by subchapter D. Supervised release is “part of” a sentence to a term of imprisonment under subchapter D, and therefore it is one of the sentences authorized under subchapter A and is authorized upon revocation of parole. U.S. v. Wesley, 81 F.3d 482 (4th Cir. 1996).
4th Circuit approves alcohol restriction as special condition of supervised release. (580) Defendant pled guilty to embezzlement and was sentenced to three years’ probation. He failed to report to his probation officer, failed to maintain his employment, tested positive for cocaine six times, and was arrested for assaulting his common law wife while drunk. The district court revoked probation, imposed six months imprisonment and three years supervised release. The Fourth Circuit approved a special condition that defendant not consume alcoholic beverages while on supervised release. The restriction was appropriate and was not greater than reasonably necessary. U.S. v. Wesley, 81 F.3d 482 (4th Cir. 1996).
4th Circuit holds that supervised release is like parole for ACA purposes. (580) Defendant was arrested for driving while impaired on a U.S. army base and was charged under the Assimilative Crimes Act with violating North Carolina law. He was originally sentenced to probation, but after committing several probation violations, a judge revoked his probation and sentenced him to 30 days imprisonment followed by a one-year term of supervised release. Defendant argued that the supervised release was unlawful because the punishment was not authorized by the assimilated North Carolina statute. The Fourth Circuit held that a term of supervised release is “like” parole for purposes of the ACA. Both occur following a term of imprisonment, involve government supervision, and serve to facilitate a prisoner’s transition into society. U.S. v. Pierce, 75 F.3d 173 (4th Cir. 1996).
4th Circuit says failure to advise of effect of supervised release was harmless error. (580) At his plea hearing, the district court correctly advised defendant of the minimum period of supervised release, but did not explain the significance of supervised release. The 4th Circuit held that this was harmless error, because the total term of supervised release and incarceration did not exceed the statutory maximum of 40 years that had been clearly explained to defendant during the plea colloquy. Defendant argued that his supervised release term could be extended to a life term because there was no maximum authorized term in 21 U.S.C. § 841(b)(1)(B). The court rejected this “worst case” scenario, refusing to follow the 9th Circuit’s opinion in U.S. v. Rodriguez, 954 F.2d 1465 (9th Cir. 1992). Under 18 U.S.C. § 3583(a), the maximum period of supervised release for a first offender guilty of a class B felony is five years, even though 21 U.S.C. § 841(b)(1)(B) has no maximum supervised release period. U.S. v. Good, 25 F.3d 218 (4th Cir. 1994).
5th Circuit says failure to register is not a sex offense, but error was not clear. (580) Defendant pled guilty to failure to register as a sex offender. He argued for the first time on appeal that the district court erred by imposing a life term of supervised release based upon its erroneous conclusion that failure to register is a sex offense. The government conceded that an error was committed, and the Fifth Circuit held that failure to register does not qualify as a sex offense for the purposes of § 5D1.2(b)(2). First, footnote 3 in U.S. v. Tang, 718 F.3d 476 n. 3 (5th Cir. 2013), stating that failure to register qualified as a sex offense, was dictum and did not bind the court. Second, there was no specific victim of defendant’s failure to register, so it was not “against a minor.” Nevertheless, the error was not clear, because when defendant was sentenced, this circuit had not addressed whether failure to register was a sex offense under § 2D1.2. Alternatively, even if the error was clear or obvious, defendant failed to demonstrate that it affected his substantial rights. His guideline range was five years to life, and the court was well aware of his extensive criminal history. The decision to impose a life term of supervised release was based upon an assessment that defendant required lifetime supervision. U.S. v. Segura, 747 F.3d 323 (5th Cir. 2014).
5th Circuit finds waiver of appeal applied to conditions of supervised release. (580) At the oral pronouncement of defendant’s sentence, the district court imposed several special conditions of supervised release, including “the drug abuse treatment and/or testing condition” and “the search and seizure condition.” The court did not discuss those conditions in detail, but the written judgment included additional language requiring defendant to (1) contribute to the cost of the drug testing and (2) warn other residents with whom he lived about the search condition. Defendant argued on appeal that the written pronouncement impermissibly broadened the conditions of supervised release. However, defendant’s plea agreement included a general waiver of the right to appeal his sentence, except for “any punishment imposed in excess of the statutory maximum.” The Fifth Circuit held that the waiver of appeal applied to the conditions of supervised release. Although the waiver provision did not explicitly include the terms of supervised release, courts have deemed supervised release to be part of the sentence. The panel also rejected defendant’s argument that only those conditions in the oral pronouncement could be considered his “sentence” for purposes of the waiver. U.S. v. Higgins, 739 F.3d 733 (5th Cir. 2014).
5th Circuit reviews special conditions of supervised release for plain error. (580) At sentencing, the court imposed a term of imprisonment and supervised release, but did not orally pronounce any conditions of supervised release. However, the written judgment filed several days later included special, mandatory and standard conditions of supervised release. Defendant argued that the district court abused its discretion by imposing special conditions in the written judgment that were not pronounced at sentencing. The Fifth Circuit noted that where there is a conflict between the written judgment and oral pronouncement, appellate review of special conditions is generally for abuse of discretion. Here, however, the special conditions were recommended by the probation officer in a memo to the prosecutor. When the government sought to introduce this memo at sentencing, defendant stated “no objections.” Thus, defendant had notice and an opportunity to contest these conditions. Accordingly, the court reviewed only for plain error and found none. U.S. v. Rouland, 726 F.3d 728 (5th Cir. 2013).
5th Circuit affirms standard conditions of supervised release despite omission from oral sentence. (580) Defendant pled guilty to child pornography charges. He challenged standard conditions of his supervised release relating to mental-health, substance-abuse, and cognitive-behavioral treatment, and participation in a workforce development program. He argued that these conditions were special under guideline § 5D1.3(d)(4), (5), and that they only become standard if the district court “has reason to believe” that such conditions are warranted. He further contended that these conditions were improperly imposed because his PSR indicated he was not suffering from mental-health issues or substance-abuse problems. The Fifth Circuit concluded that the conditions were “standard,” not special. The conditions were categorized as “standard” in the district’s judgment form, and there was record evidence supporting these conditions. Defendant had received treatment at a mental-health facility, and was also prescribed antidepressants for the treatment of depression and anxiety. In addition, defendant’s opiate blood level was “above range.” Because the conditions were standard, the district court did not abuse its discretion by failing to orally mention them at sentencing, and only including them in the written judgment. U.S. v. Rouland, 726 F.3d 728 (5th Cir. 2013).
5th Circuit reverses condition requiring no direct or indirect contact with minors. (580) Defendant was convicted of failing to register as a sex offender. The Fifth Circuit rejected as unreasonable a condition of supervised release barring defendant from any “direct or indirect contact with any children under the age of 18.” The restriction worked a “greater deprivation of liberty than [was] reasonably necessary” because (1) defendant was being sentenced for failing to register as a sex offender; (2) the offense that required him to register was not recent; and (3) since that offense, he had committed no other crimes against minors. Circumstances might permit a sentencing court to limit an offender’s access to places where children are likely to be unsupervised or poorly supervised. It might be reasonable to bar an offender from initiating unsupervised or poorly supervised contact with others’ children, and to require him to report contact that children initiate. But to forbid all “indirect” contact worked a serious restriction on liberty, making a trip to the grocery store or a place of worship a trip that might end in imprisonment. U.S. v. Windless, 719 F.3d 415 (5th Cir. 2013).
5th Circuit affirms ban on internet use despite failure to comply with § 3553(c). (580) Defendant pleaded guilty to failing to register as a sex offender after traveling in interstate commerce, in violation of 18 U.S.C. § 2250(a). He argued for the first time that the district court did not adequately explain its reasons for conditions of supervised release banning his use of a computer and the internet, and restricting his contact with minors. The Fifth Circuit found that any error did not affect defendant’s substantial rights, because he failed to show how compliance with § 3553(c) would have changed his sentence. U.S. v. Tang, 718 F.3d 476 (5th Cir. 2013).
5th Circuit rejects internet and computer ban where defendant never used computer to commit crimes. (580) Defendant pleaded guilty to failing to register as a sex offender after traveling in interstate commerce. He argued for the first time on appeal that a supervised release condition banning him from the internet without approval from a probation officer was contrary to guideline § 5D1.3(d)(7) and 18 U.S.C. § 3553(a). The Fifth Circuit agreed with defendant. The internet ban was not “reasonably related to the factors set forth in” § 3553(a) and involved a greater deprivation of liberty than reasonably necessary. The ban did not relate to the “nature and circumstances” of defendant’s offense of failing to register as a sex offender. Nor did it relate to “the history and characteristics of the defendant” because defendant had never committed an offense over the internet and his prior conviction for assault with intent to commit sexual abuse did not involve any use of a computer. Although internet bans are often reasonable conditions of release for sex offenders, the guidelines explicitly state that they are reasonable when the defendant used a computer in the underlying offense, which defendant did not do here. U.S. v. Tang, 718 F.3d 476 (5th Cir. 2013).
5th Circuit upholds mental health program as condition of supervised release. (580) Defendant pleaded guilty to failing to register as a sex offender after traveling in interstate commerce. The district court imposed a supervised release condition requiring defendant to participate in a mental health program, treatment program and/or sex offender treatment program as approved by the probation office. He challenged five aspects of the requirement: (1) the physiological testing, (2) the sex offender treatment, (3) the mandatory nature of the treatment, (4) the funding of the treatment, and (5) the waiver of confidentiality in counseling sessions. The Fifth Circuit found that the first three challenges were without merit because the district court included them only as options for the mental health professionals who treated defendant, not as mandatory conditions. The panel also ruled that the district court did not plainly err in requiring defendant to incur any costs associated with sex offender treatment and testing based on his ability to pay, as determined by the probation officer. Finally, the court properly imposed the confidentiality waiver since it could allow the probation officer to monitor and aid in defendant’s progress. U.S. v. Tang, 718 F.3d 476 (5th Cir. 2013).
5th Circuit approves restriction on contact with minors, but rejects additional written restriction. (580) Defendant pleaded guilty to failing to register as a sex offender after traveling in interstate commerce. The district court imposed a supervised release condition barring contact with minors, including defendant’s own children, and from dating persons with minor children without approval from a probation officer. The Fifth Circuit upheld the restriction on contact with minors, finding it was reasonably related to defendant’s history, specifically his conviction for assault on a minor with intent to commit sexual abuse. It was also reasonably related to deterrence and protecting the public. However, the district court abused its discretion by including a restriction on dating in the written judgment, since it was not part of the oral pronouncement of sentence. U.S. v. Tang, 718 F.3d 476 (5th Cir. 2013).
5th Circuit reverses reliance on “bare arrest records” in imposing supervised release conditions. (580) Defendant was convicted of failing to register as a sex offender. Other than his original 1992 sexual assault conviction and a 2008 registration conviction, defendant’s PSR disclosed no other convictions. However, it also disclosed several arrests, which the district court expressly referenced in imposing special conditions of supervised release. A federal district court may not rely on “bare arrest records” when sentencing a defendant. An arrest record is “bare” when it refers to the to the mere fact of an arrest, without information about the underlying facts or circumstances. The district court attempted to justify its reliance by distinguishing between “special conditions” of release and a defendant’s “sentence.” The Fifth Circuit found that distinction “illusory,” holding that a court may not rely on bare arrest records when imposing special conditions of supervised release. Supervised release and its conditions are part of a defendant’s sentence. U.S. v. Windless, 719 F.3d 415 (5th Cir. 2013).
5th Circuit upholds supervised release term for illegal reentry defendant. (580) Defendant was convicted of illegally reentering the U.S. after deportation, and was sentenced to imprisonment and two years of supervised release. He objected to the supervised release term, contending that recent amendments to §5D1.1 prohibit a district court from adding a term of supervised release to a removable-alien defendant’s sentence unless it specifically finds that the case is “extraordinary.” The Fifth Circuit concluded that the district court properly imposed the term of supervised release “based on the facts and circumstances of [this] particular case.” Note 5 to § 5D1.1. The amendments to § 5D1.1 preserved district courts’ authority to impose terms of supervised release as they deem necessary to provide “an added measure of deterrence and protection.” Under U.S. v. Dominguez–Alvarado, 695 F.3d 324 (5th Cir. 2012), § 5D1.1 obligates district courts to give some “particularized explanation” and “adhere to the Rule 32 process” in imposing supervised release. This requirement is not onerous. The district court here supplied a sufficiently particularized explanation of its decision to impose supervised release. U.S. v. Becerril-Pena, 714 F.3d 347 (5th Cir. 2013).
5th Circuit says possible misunderstanding about supervised release did not make sentence unreasonable. (580) Defendant’s PSR provided that his guideline range included two to three years of supervised release. It also stated that supervised release was required if the court imposed a term of imprisonment of more than one year. However, more than a month before the sentencing, § 5D1.1 was amended to provide that the court should not impose supervised release if not required by statute and the defendant was a deportable alien. The PSR was not modified to reflect the new range, and neither the court nor the government evinced an awareness that the amended guidelines made supervised release discretionary. The district court sentenced defendant to 32 months’ imprisonment and three years of supervised release. The Fifth Circuit held that the three-year term of supervised release was not procedurally or substantively unreasonable. It was error to impose supervised release with reference to an outdated version of the guideline that characterized supervised release as “mandatory.” However, given defendant’s extensive criminal record, the error did not affect his substantial rights. The term was within the applicable guideline range of one to three years. Appellate courts ordinarily apply a presumption of reasonableness to within-guidelines sentences. Defendant offered no compelling rebuttal of that presumption. U.S. v. Cancino-Trinidad, 710 F.3d 601 (5th Cir. 2013).
5th Circuit reverses where court automatically imposing lifetime sentence of supervised release. (580) Defendant pled guilty to failing to register as a sex offender, and was sentenced to 27 months in prison, followed by a lifetime term of supervised release. In U.S. v. Alvarado, 691 F.3d 592 (5th Cir. 2012), the Fifth Circuit found that the sentencing judge erred by automatically imposing a lifetime sentence of supervised release without engaging in any analysis of the circumstances surrounding the defendant’s crime. At re-arraignment, the sentencing judge declared: “I’ve never given, never not given, since it was authorized, a lifetime, a lifetime supervision in child pornography.” Here, the Fifth Circuit also held that the district court erred in automatically imposing the lifetime sentence of supervised release. At defendant’s re-arraignment, the sentencing judge, who was the same judge who had sentenced Alvarado, similarly declared: “And I usually do give … life supervised release in these situations.” As in Alvarado, at the time she imposed the sentence, the sentencing judge did not give reasons for her decision to impose a lifetime term of supervised release. As such, in light of Alvarado, the panel vacated the lifetime term of supervised release and remanded for further proceedings. U.S. v. Fraga, 704 F.3d 432 (5th Cir. 2012).
5th Circuit says appeal waiver barred motion to modify supervised release. (580) Defendant pled guilty to possession child pornography. In his plea agreement, defendant waived the right to appeal his conviction and sentence “on all grounds,” and to contest his sentence in “any post-conviction proceeding.” After sentencing, defendant filed a motion under 18 U.S.C. § 3583(e)(2), seeking to delete or modify the terms of his supervised release. The district court denied the motion. Defendant then filed a second § 3582(e)(2) motion, arguing that the sex offender guidelines were unconstitutional. The district court again denied the motion, and defendant appealed. The Fifth Circuit held that the motion was barred by defendant’s appeal waiver, ruling that the denial of defendant’s § 3583(e)(2) motion to modify the terms of supervised release fell within the scope of defendant’s appeal waiver. The challenges defendant brought in his § 3583(e)(2) motion could have been raised on direct appeal or as part of a collateral attack, and defendant unequivocally waived both of those options in his written plea agreement. U.S. v. Scallon, 683 F.3d 680 (5th Cir. 2012).
5th Circuit upholds ban on sexually oriented materials. (580) Defendant pled guilty to one count of transportation of child pornography. The district court ordered, as a condition of supervised release, that defendant be barred from purchasing, possessing or using any sexually stimulating or sexually oriented materials. Defendant argued that the condition impinged on his First Amendment rights because it forbid him from possessing legal adult pornography and sexually explicit material that is not pornography, such as Playboy magazine. The Fifth Circuit found that defendant’s objection below—that the condition was overbroad—was insufficient to preserve his current challenges, and therefore reviewed only for plain error. The district court did not plainly err in imposing the challenged condition. There was a nexus between defendant’s history, and the prohibitions regarding adult porn and other legal, sexually stimulating material. The PSR documented ways in which defendant’s consumption of adult porn impinged on his daily life, including downloading adult and child porn on his work computer, and using his grandfather’s credit card for paid phone sex companies. U.S. v. Miller, 665 F.3d 114 (5th Cir. 2011).
5th Circuit upholds prohibitions on computer and Internet access. (580) Defendant pled guilty to one count of transportation of child pornography. The district court ordered, as a condition of his 25-year term of supervised release, that defendant not use any computer at any location, and not possess or use any phone or other electronic device that allows access to the Internet, without prior approval from the Probation Office. After reviewing the approaches of various courts of appeal regarding the propriety of such restrictions, the Fifth Circuit concluded that the computer and Internet restrictions were not an abuse of discretion. The court did not recount all of the facts that supported this conclusion—it was sufficient to say that defendant’s history reflected his use of the Internet to victimize minors. The court rejected the argument that a court may only resort to restrictions on Internet access after investigating other options, such as monitoring computer usage, unannounced inspections, and filtering devices. U.S. v. Miller, 665 F.3d 114 (5th Cir. 2011).
5th Circuit upholds condition of supervised release barring defendant from possessing camera. (580) Defendant pled guilty to one count of transportation of child pornography. The district court ordered, as a condition of his 25-year term of supervised release, that defendant not own or possess any type of camera or video recording device, without approval of the probation officer. The Fifth Circuit found that defendant’s history fully supported this condition. Defendant admitted to using a web camera to communicate with a juvenile female on two occasions. His cell phone had images of child pornography, including depictions of bondage. U.S. v. Miller, 665 F.3d 114 (5th Cir. 2011).
5th Circuit upholds sex-offender-related special conditions based on prior sex offense. (580) In 1979, defendant was convicted of forcible rape and served 23 years in prison. In 2006, he pleaded guilty to making a false claim to FEMA following Hurricane Katrina, and was initially sentenced to probation. After he violated probation, he was resentenced to three months imprisonment and two years of supervised release. The district court ordered, as special conditions of his supervised release, that he undergo psycho-sexual evaluation and any necessary treatment and not possess sexually explicit materials. The Fifth Circuit upheld the conditions, holding that the district court properly considered defendant’s prior rape conviction in determining the conditions of release. Because courts must consider the defendant’s history and characteristics, they may take into account a defendant’s prior conviction for a sex offense, even if the underlying conviction is for a non-sexual offense. The court was also aware that the state had issued a warrant for defendant’s arrest for an attempted murder, aggravated kidnapping, and aggravated rape. U.S. v. Weatherton, 567 F.3d 149 (5th Cir. 2009).
5th Circuit upholds sex offender conditions of release even though conviction was not sex offense. (580) When defendant entered the country, Customs learned that defendant was wanted for sexual assault of a minor. Officers attempted to handcuff defendant, and he resisted and struck three officers. Defendant pled guilty to three counts of assault on a federal officer. The district court imposed imprisonment and a three-year term of supervised release. As a condition of supervised release, the court barred defendant from associating with any child under eighteen, except in the presence of an adult designated by the probation office, and from residing within 1000 feet of a school or playground, without prior approval of the probation officer. The Fifth Circuit held that both the residency and association restrictions were reasonably related to the history and characteristics of defendant, even though the underlying conviction was not a sex offense and defendant had never been convicted of a sexual offense. Under Gall’s deferential standards, the district court acted within its discretion when it imposed the conditions of release. Neither condition was overly broad. U.S. v. Rodriguez, 558 F.3d 408 (5th Cir. 2009).
5th Circuit holds that court did not plainly err in requiring firearm defendant to register as sex offender if required by state law. (580) Defendant was convicted of being a felon in possession of a firearm. At sentencing, the court expressed concern about defendant’s lengthy and serious prior criminal history, in particular his two state convictions for sex-related offenses. The court ordered, as a condition of supervised release, that defendant register as a sex offender if required to do so under state law. Because the offense of conviction was not a sex crime, the court did not check the box, appearing in the list of mandatory conditions applicable to certain types of cases, directing that the defendant “shall register … as directed by the probation officer.” The Fifth Circuit found no error. The panel interpreted the condition to require only that defendant register as a sex offender if state law required it. It is axiomatic that a court can include as a condition of release that the defendant obey the law. U.S. v. Talbert, 501 F. 3d 449 (5th Cir. 2007).
5th Circuit upholds the life term of supervised release for child pornography defendant. (580) Defendant pled guilty to multiple counts of possessing child pornography. The district court imposed a life term of supervised release, in accordance with U.S.S.G. § 5D1.2(c). Defendant challenged the term of supervised release for the first time on appeal, but the Fifth Circuit found no plain error. The policy statement in § 5D1.2 recommends a maximum term of supervised release for sex offenders who are convicted under Chapter 110 of the U.S. Code, particularly those who commit crimes against minors. Read in conjunction with statutory provisions governing supervised release, district court are authorized to impose a life term of supervised release on sex offenders, particularly those who commit crimes against minors. Possession and distribution of child pornography are crimes perpetrated against a minor. U.S. v. Planck, 493 F.3d 501 (5th Cir. 2007).
5th Circuit holds that Internet restriction and limit on contact with kids was reasonable. (580) Defendant was convicted of receiving and possessing child pornography. As a condition of supervised release, the district court restricted his Internet use and contact with children. He challenged the conditions for the first time on appeal, but the Fifth Circuit found no plain error. A prohibition on Internet usage is reasonably related to the offense of possession of child pornography and the need to prevent recidivism and protect the public. See U.S. v. Paul, 274 F.3d 155 (5th Cir. 2001). Moreover, in Paul, the court upheld an even broader provision prohibiting contact with minors and requiring avoidance of places frequented by minors. Given that many of the photos here involved children engaged in sexual conduct with adults, the condition was not plain error. U.S. v. Buchanan, 485 F.3d 274 (5th Cir. 2007).
5th Circuit holds that written judgment requiring defendant to participate in mental health program conflicted with oral judgment. (580) In addition to the standard conditions of supervised release, the written judgment against defendant imposed a special condition of supervised release requiring him to participate in a mental health program as deemed necessary by the probation officer. At his earlier sentencing hearing, the court orally imposed one unrelated special condition of supervised release, “Plus all the other terms and conditions.” Because a defendant has a constitutional right to be present at sentencing, where a written judgment conflicts with the oral judgment, the oral judgment controls. The Fifth Circuit held that the written judgment requiring defendant to participate in a mental health program did conflict with the oral judgment, and thus had to be deleted from the judgment. U.S. v. Bigelow, 462 F.3d 378 (5th Cir. 2006).
5th Circuit holds that written condition requiring prior approval to obtain new ID conflicted with oral judgment. (580) At sentencing, the judge orally announced as a special condition of release that defendant tell the probation officer of every bank account, credit card account or driver’s license that he applied for or obtained. However, the written judgment stated that defendant could not obtain any form of identification without the prior approval of the probation officer. owevHowever Because a defendant has a constitutional right to be present at sentencing, where a written judgment conflicts with the oral judgment, the oral judgment controls. The Fifth Circuit held that the written judgment conflicted with the oral judgment and thus had to be conformed to it. The written judgment imposed a more burdensome requirement of prior approval rather than merely notifying the probation officer when applying for or having obtained a new identification document. The difference between the two was not a mere ambiguity. U.S. v. Bigelow, 462 F.3d 378 (5th Cir. 2006).
5th Circuit holds that court’s failure to impose term of supervised release on sex offender was unreasonable. (580) Defendant pled guilty to using the Internet to attempt to entice a minor to engage in sexual activity. The district court sentenced defendant to 60 months’ imprisonment, but declined to impose a term of supervised release, finding the statutory minimum sentence was “more than sufficient.” The Fifth Circuit held that the district court’s failure to impose a term of supervised release rendered the sentence unreasonable. The sentence failed to give adequate weight to the guidelines and the pertinent policy statement in U.S.S.G. § 5D1.2(b), which recommends the statutory maximum supervised release term for sex offenses. The lack of supervised release did not effectuate the statutory goals enumerated in § 3553(a)(2)(B)-(D): the need to deter criminal conduct, protect the public, and provide correctional treatment to the offender. Although the court emphasized defendant’s need to seek professional counseling after his release from prison, the sentence imposed provided no mechanism to ensure that he would received the supervision he needed upon his release to prevent the urge to recidivate. State sex-offender registration requirements are not an adequate substitute for federal supervised release. U.S. v. Armendariz, 451 F.3d 352 (5th Cir. 2006).
5th Circuit upholds life term of supervised release. (580) Defendant pled guilty to possession and production of child pornography, and received a sentence that included a life term of supervised release. The Fifth Circuit affirmed. Under 18 U.S.C. § 3583(b), as amended by § 3583(k), the maximum term of supervised release for various sex offenses is life. Congress explicitly recognized the high rate of recidivism in convicted sex offenders, especially child sex offenders. Defendant had adequate notice of the possible life term of supervised release in the PSR, which referenced § 3583(k) and the policy statement in § 5D1.2(c). The judge’s statement that “scientific evidence” showed that possession of child pornography was a “perpetual problem” that would not be “cured” with a 96-month sentence, was not improper, and was nothing more than a shorthand reference to the general notion (reflected in the statute and the guidelines) that pedophiles are typically recidivists. The court did not abuse its discretion in deciding to depart upward or in the extent of the departure. U.S. v. Allison, 447 F.3d 402 (5th Cir. 2006).
5th Circuit upholds condition of supervised release requiring defendant to pay previously ordered, but unpaid, restitution. (580) On revocation of defendant’s supervised release, the district court sentenced her to imprisonment followed by another term of supervised release. As a condition of this release, the judge ordered not only that defendant pay the remaining restitution previously ordered in this case, but also that she should pay about $50,000 in unpaid restitution ordered by a different federal court following a 1993 fraud conviction. The Fifth Circuit found no error. The order was not a new order of restitution, and thus was proper under the catch-all provision of § 3583(d) (the court may impose “any other condition it considers to be appropriate”). While the catch-all provision might not allow a court to order restitution that Congress has specifically denied, it does allow a court to order compliance with a previously existing order. U.S. v. Love, 431 F.3d 477 (5th Cir. 2005).
5th Circuit says defendant is not entitled to have jury find facts supporting supervised release revocation. (580) Defendant argued that the district court violated her Sixth Amendment right to a jury trial in revoking her supervised release and imposing a two-year sentence of re-imprisonment based on facts neither found by a jury nor admitted by her. The Fifth Circuit held that defendant was not entitled to a jury trial to determine whether the terms of her supervised release had been violated. Mandatory Sentencing Guidelines have never been applicable to revocation of supervised release, only advisory policy statements apply to sentences imposed upon revocation. U.S. v. Hinson, 429 F.3d 114 (5th Cir. 2005).
5th Circuit holds that prohibition against possession of dangerous weapon was standard condition of release. (580) When there is a conflict between a written sentence and an oral pronouncement, the oral pronouncement controls. However, an explicit reference to each and every “standard” condition of supervision is not essential because such conditions are implicit in supervised release. Defendant argued that the condition in the written judgment barring him from possessing “any other dangerous weapon” during supervised release was a “special” condition that must be pronounced at oral sentencing. The Fifth Circuit disagreed. The Sentencing Guidelines’ identification of the conditions enumerated in § 5D1.3(d) as “special” does not foreclose the possibility that a district court may properly include them in its judgment without orally informing the defendant of the conditions at sentencing. Section 5D1.3(d)(1) recommends a firearm prohibition if the current conviction is for a felony, or if the defendant was previously convicted of a felony or used a firearm or other dangerous weapon. Defendant pled guilty to a felony; therefore, the “special” condition recommended in § 5D1.3(d) was as standard as those conditions in § 5D1.3(c), which the guidelines specifically refer to as “standard.” U.S. v. Torres-Aguilar, 352 F.3d 934 (5th Cir. 2003).
5th Circuit holds that conditions of supervised release in written judgment did not conflict with oral sentence. (580) Defendant alleged that during the sentencing hearing, the district court never mentioned several special conditions of supervision that later appeared in the written judgment, including (1) his responsibility for the costs of drug and alcohol treatment, (2) a provision requiring inpatient drug treatment, (3) specific drug testing methods, and (4) the requirement that he comply with the rules and regulations of the drug treatment agency. The Fifth Circuit found no conflict. First, the imposition of the costs of drug treatment, even if mentioned for the first time in the written judgment, did not create a conflict between the written and oral judgment. The only close issue was whether the court’s inclusion of the written condition for “further drug-detection techniques in addition to those performed by the treatment agency” conflicted with the oral sentence, which specified only that defendant “participate in a program for drug and alcohol abuse addiction as required by the probation office, including inpatient if required.” The panel concluded there was no conflict. The court had ordered defendant to comply with “the standard conditions,” which included drug testing. Thus, defendant was already obligated to submit to periodic drug testing at the direction of the probation officer. The challenged language merely clarified that defendant’s participation in a treatment program did not free him from his obligation to submit to drug testing at the direction of his probation officer. U.S. v. Vega, 332 F.3d 849 (5th Cir. 2003).
5th Circuit reduces supervised release term rather than remand for resentencing. (580) Defendant pled guilty to the transportation of illegal aliens, in violation of 8 U.S.C. § 1324(a) (1)(A)(ii), and was sentenced to imprisonment and five years of supervised release. The government conceded that this was plain error, since defendant’s offense was a Class C felony, and the maximum authorized term of supervised release for a Class C felony is not more than three years. The Fifth Circuit found no need to remand for resentencing, ruling that it could just modify the term of supervised release. Since the district court previously imposed a five-year supervised release term, and sentenced defendant to the guideline maximum term of imprisonment, the court would most likely impose the maximum of three years of supervised release on remand. U.S. v. Rodriguez-Martinez, 329 F.3d 419 (5th Cir. 2003).
5th Circuit says conditions barring possession of sexually oriented materials was not too vague. (580) As a special condition of supervised release, the district court prohibited defendants from possessing “sexually oriented or sexually stimulating materials” and from “patroniz[ing] any place where such material or entertainment is available.” Defendants argued that this condition was unconstitutionally vague, but the Fifth Circuit disagreed. While the category of “sexually oriented or sexually stimulating materials” is somewhat vague, the condition must be read in a commonsense way. See U.S. v. Paul, 274 F.3d 155 (5th Cir. 2001). Thus, the condition did not apply to newspapers and magazines that contain lingerie. Moreover, the prohibition on patronizing sexual oriented establishments referred with sufficient precision to places such as strip clubs and adult theaters or bookstores. U.S. v. Phipps, 319 F.3d 177 (5th Cir. 2003).
5th Circuit rules convictions for driving under the influence were not “crimes against the person.” (580) Defendant illegally reentered the U.S. after deportation. The maximum term of imprisonment for violations of § 1326(a) is two years, and the maximum term of supervised release is one year. However, the district court found that defendant’s three prior misdemeanor convictions for driving under the influence were “crimes against the person,” thereby triggering the enhanced sentencing in 8 U.S.C. § 1326(b)(1), which authorizes up to three years of supervised release. Construing the term in accordance with its accepted common law definition, the Fifth Circuit held that “crimes against the person” is an offense that, by its nature, involves a substantial risk that the offender will intentionally use physical force against another person. “Crimes against the person” plainly did not include defendant’s misdemeanor convictions for driving under the influence because the offense did not involve the intentional use or threat of force. U.S. v. Trejo-Galvan, 304 F.3d 406 (5th Cir. 2002).
5th Circuit upholds gambling prohibition as condition of supervised release. (580) Defendant argued that the court improperly forbid him from gambling or visiting gambling establishments while on supervised release. The district court, however, noted the many cash withdrawals that defendant made from casinos while in such dire financial straits that he had to resort to fraud. The Fifth Circuit upheld the gambling prohibition as a condition of supervised release. A district court does not abuse its discretion, much less commit plain error, by restricting a criminal defendant with a history of excessive gambling from visiting casinos or gambling during supervised release. The district court also properly required defendant to receive “substance abuse treatment as directed by the probation office.” A court can require participation in a substance abuse program if it has reason to believe that the defendant abuses controlled substances. USSG § 5D1.3(4). In 1992, defendant pled guilty to possession of marijuana. In 1999, he was arrested and charged with possession of crack, but the charges were dismissed. Although defendant denied drug use, the district court had a reasonable basis to grant the probation department the authority to order him into drug treatment. U.S. v. Cothran, 302 F.3d 279 (5th Cir. 2002).
5th Circuit holds that error in failing to explain effect of supervised release did not affect substantial rights. (580) The judge told defendant: “When you get out, for three years, if you go to jail, for three years, you are going to have to follow certain rules and regulations, and if you don’t do what I tell you, I am going to send you back for more time.” To satisfy Rule 11’s required explanation of the effect of supervised release, the district court should inform the defendant “that a term of supervised release is imposed in addition to any sentence of imprisonment and that a violation of the conditions of supervised release can subject the defendant to imprisonment for the entire term of supervised release, without credit for any time already served on the term of supervised release.” The Fifth Circuit held that the district court’s failure to explain the effect of supervised release constituted clear error, but the error did not affect his substantial rights. In defendant’s “worst-case scenario,” the 151-month term of imprisonment combined with the three years of supervised release and the two-year period of incarceration that could be imposed after revocation of his supervised release would not exceed the 20-year maximum prison sentence of which he was advised. The conditions of supervised release, as opposed to 20 years of imprisonment, were not so onerous that they would deter defendant from pleading guilty. U.S. v. Reyes, 300 F.3d 555 (5th Cir. 2002).
5th Circuit upholds order to pay treatment costs based on ability to pay as determined by probation officer. (580) As conditions of supervised release, the district court ordered defendant to attend drug treatment and counseling, sex offender counseling, and anger management counseling. The judgment stated that defendant would incur the costs associated with these treatments, “based on ability to pay as determined by the probation officer.” The Fifth Circuit rejected defendant’s claim that the court improperly delegated its authority to the probation officer by permitting the officer to determine defendant’s “ability to pay” the costs of the relevant treatment. The case relied on by defendant U.S. v. Albro, 32 F.3d 173 (5th Cir. 1994), could be distinguished as it concerned restitution payments, rather than payment for the costs of drug treatment and counseling. Moreover, in Albro, the probation officer was clearly charged with determining the “manner” of payments by creating a payment schedule to govern amounts paid to third parties. Here, the probation officer was only given the responsibility to make a determination as to defendant’s ability to pay, a fact-finding determination commonly made by probation officers in other contexts. U.S. v. Warden, 291 F.3d 363 (5th Cir. 2002).
5th Circuit says written order that defendant pay cost of treatment was not inconsistent with oral judgment. (580) At sentencing, the judge ordered defendant to undergo a sex-offender evaluation and receive counseling, if necessary. The court also ordered defendant to participate in drug abuse counseling as required by the Probation Department, and to be evaluated for anger treatment. The written judgment provided that defendant was responsible for paying for the costs of drug treatment and counseling, sex offender counseling, and anger management counseling. Defendant argued that the district court erred by including in its written judgment special conditions of supervised release that were not part of its oral pronouncement of sentence. Any conflict between the oral pronouncement of sentence and the written sentence must be resolved in favor of the oral pronouncement. However, the Fifth Circuit found no conflict. The difference between the two statements made by the district court created, if anything, an ambiguity. Because the requirement that defendant bear the costs of the ordered treatments was clearly consistent with the court’s intent that he attend the treatments, the court upheld the conditions. U.S. v. Warden, 291 F.3d 363 (5th Cir. 2002).
5th Circuit says due process limit on sentence does not affect term of supervised release after revocation. (580) In U.S. v. Doggett, 230 F.3d 160 (5th Cir. 2000), the Fifth Circuit held that defendants charged with unspecified drug quantities could only be sentenced using 21 U.S.C. § 841(b)(1)(C). Because that section authorizes no more than three years’ supervised release, defendant argued that it was improper for the district court to sentence her to a four-year term after her original supervised release term was revoked. The Fifth Circuit found this argument unavailing, because Doggett was not the law when defendant was convicted and sentenced and she never challenged the language of her indictment or the drug quantity used in calculating her original sentence. “She may not now use her new term of supervised release as a vehicle to do so.” The plain language of 18 U.S.C. § 3583(h) directs courts to look to the “statute for the offense that resulted in the original term of supervised release.” Because defendant was sentenced under § 841(b)(1)(B), the maximum term of supervised release the court could have imposed was five years less the nine months of incarceration imposed on revocation, so the four year term of supervised release was proper. U.S. v. Moody, 277 F.3d 719 (5th Cir. 2001).
5th Circuit upholds broad restrictions on defendant who possessed child pornography. (580) Defendant was convicted of possessing child pornography on the hard drive of his computer. As a condition of supervised release, defendant was directed to avoid “direct and indirect contact with minors,” as well as “places, establishments, and areas frequented by minors.” He was also barred from possessing or having access to “computers, the Internet, photographic equipment, audio/video equipment, or any item capable to producing a visual image.” Finally, defendant was instructed to “register with the sex offender registration” in any state where he resided or was employed. The Fifth Circuit upheld the conditions of release. The prohibition on “indirect” contact with minors was neither impermissibly vague nor unreasonably overbroad, and did not extend to casual or chance meetings. The court rejected the implication in U.S. v. White, 244 F.3d 1199 (10th Cir. 2001) that an absolute prohibition on accessing computers or the Internet is per se an unacceptable condition of supervised release. Moreover, White was distinguishable because there was evidence here that defendant had used the Internet to “initiate and facilitate a pattern of criminal conduct and victimization.” The restriction on defendant’s ability to use photo equipment was reasonably related to his offense, given the evidence that he had produced child pornography in the past. Defendant had adequate presentence notice of the sex offender registration requirement. U.S. v. Paul, 274 F.3d 155 (5th Cir. 2001).
5th Circuit says Apprendi error not harmless even though court could have imposed consecutive terms. (580) Because defendant’s five-year term of supervised release represented an enhanced penalty under § 841(b)(1)(B), but a quantity of drugs was not stated in the indictment or submitted to a jury for a finding beyond a reasonable doubt, the Fifth Circuit found plain error in defendant’s sentence. In addition, defendant’s 65-month sentence was erroneous under Apprendi v. New Jersey, 530 U.S. 466 (2000), even though defendant did not raise this issue on appeal. Because the government failed to state a quantity of drugs in the indictment and prove it beyond a reasonable doubt, defendant could not be sentenced to more than 60 months on each count pursuant to 21 U.S.C. § 841(b)(1)(D). Although the government argued that the error was harmless because the district court could have imposed consecutive rather than concurrent terms, the district court found concurrent terms of 65 months incarceration for both counts appropriate punishment. Because the district court has discretion to fashion a penalty that combines terms of imprisonment with periods of supervised release, the Fifth Circuit remanded for sentencing. U.S. v. Vasquez-Zamora, 253 F.3d 211 (5th Cir. 2001).
5th Circuit reduces supervised release term in light of Apprendi. (580) Defendants argued for the first time on appeal that their terms of supervised release violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), which held that any fact other than a prior conviction that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. Three of the defendant received multiple concurrent terms of supervised release. The Fifth Circuit ruled that it would only find plain error in these concurrent terms only if the error actually resulted in a longer term of supervised release; i.e., it would only reduce overlong terms of supervised release down to what would be the longest term had supervised release been calculated in accordance with Apprendi. Defendants Thomas and Parker received five-year terms of supervised release for their respective crack convictions. The Fifth Circuit reduced these terms to the maximum term allowable by statute for crack offenses that do not require a drug quantity showing. For both defendants, this was three years. See 18 U.S.C. § 3583(b)(2); 21 U.S.C. § 841(b)(1)(C). Defendants Hodge and Meshack both received ten year terms of supervised release. In both cases, the maximum term of supervised release irrespective of drug amount—based on their prior offenses—was six years. See 21 U.S.C. § 841(b)(1)(C). U.S. v. Meshack, 225 F.3d 556 (5th Cir. 2000), amended, 244 F.3d 367 (5th Cir. 2001).
5th Circuit holds that defendant could be on both parole and supervised release concurrently. (580) Section 1002 of the Anti-Drug Abuse Act of 1986 mandates supervised release for all individuals convicted of drug offenses after October 26, 1986. See 21 U.S.C. § 841(b)(1)(A). However, the “good conduct statutes,” 18 U.S.C. §§ 4161-4164, according to which the U.S. Parole Commission calculated pre-guideline offenders’ sentences, were not repealed until November 1, 1987. Therefore, for those individuals convicted of drug offenses that occurred during the year and four days between October 26, 1986 and November 1, 1987, the Fifth Circuit ruled the Parole Commission can calculate their sentences pursuant to the good conduct statute—thereby allowing them to be paroled—but the district court will also sentence them to supervised release in accordance with the ADAA. Thus, a defendant can be on both parole and supervised release concurrently. U.S. v. Lewis, 211 F.3d 932 (5th Cir. 2000).
5th Circuit rejects consecutive terms of supervised release. (580) In 1997, defendant was convicted of illegally smuggling aliens into the U.S. At the time of sentencing, he was serving a one-year prison term for a 1996 smuggling offense and was subject to a three-year term of supervised release for that crime. The district court imposed a 24-month sentence to run consecutively to the 1996 sentence. In addition, the court imposed a three-year term of supervised release to run consecutively to the 1996 term of supervised release. The Fifth Circuit held that 18 U.S.C. § 3624(e) barred the court from ordering the current supervised release term to run consecutively to the 1996 supervised release term. Under § 3624(e), once a defendant is released from prison, his supervised release term must run concurrently to any other supervision to which he is subject. U.S. v. Hernandez-Guevara, 162 F.3d 863 (5th Cir. 1998).
5th Circuit holds financial disclosure requirement did not infringe freedom of religion. (580) Defendant, a minister, pled guilty to filing a false tax return. As a condition of supervised release, the district court required him to disclose information to his probation officer relating to financial transactions, both personal and business. The Fifth Circuit held that this financial disclosure requirement did not infringe defendant’s free exercise of religion under the 1st Amendment. Defendant read the order too broadly. While the order required defendant to report income that he received personally or on behalf of the two closely-held church-related entitles that he controlled, it did not require any church to provide the probation officer with financial information. U.S. v. Grant, 117 F.3d 788 (5th Cir. 1997).
5th Circuit rejects consecutive terms of supervised release. (580) Defendant argued that the court erred in departing upward to make some of his terms of supervised release consecutive. He contended that 18 U.S.C. § 3624(e) did not authorize supervised release terms to be “stacked” and that the commentary to § 5G1.2 expressly prohibits such consecutive terms. The government conceded that this argument was correct, so the Fifth Circuit remanded for resentencing. U.S. v. Myers, 104 F.3d 76 (5th Cir. 1997).
5th Circuit requires defendant to provide probation officer with all financial information. (580) Defendant challenged a condition of supervised released that required him to provide the probation officer with any requested financial information. The Fifth Circuit upheld the requirement because it was identical to § 5B1.4(b)(18). That guideline recommends that if the court imposes restitution, it include a condition requiring the defendant to provide the probation officer with any requested financial information. The court had also ordered defendant to pay restitution of $380,689.23. U.S. v. Ismoila, 100 F.3d 380 (5th Cir. 1996).
5th Circuit holds that court may not order deportation as condition of supervised release. (580) Defendant made false statements on immigration documents and applications for educational grants. The district court sentenced him to 10 months imprisonment and ordered him deported as a condition of his supervised release. The Fifth Circuit, agreeing with the First Circuit and disagreeing with the Eleventh Circuit, held that the district court exceeded its statutory power under 18 U.S.C. § 3583(d) in ordering defendant deported as a condition of supervised release. Section 3583(d) simply permits the sentencing court to order, as a condition of supervised release, that an alien defendant who is subject to deportation be surrendered to immigration officials for deportation proceedings. Following such surrender, the defendant is entitled to whatever process and procedures are prescribed by the Immigration and Naturalization Act. U.S. v. Quaye, 57 F.3d 447 (5th Cir. 1995).
5th Circuit says supervised release was not extinguished when defendant was deported. (580) Defendant was involved in a conspiracy to import marijuana from Jamaica to the U.S. He received two criminal history points under § 4A1.1(d) for being on supervised release at the time of the offense. Defendant argued that his supervised release was extinguished in October 1990 when he was deported. The Fifth Circuit disagreed, holding that deportation does not extinguish a term of supervised release. If Congress had intended for deportation to terminate supervised release, it could have plainly said so. Moreover, other courts have recognized that a supervised release term remains intact after an alien’s deportation. U.S. v. Brown, 54 F.3d 234 (5th Cir. 1995).
5th Circuit says requiring repayment schedule with IRS conflicted with plea agreement. (580) Defendant did not file tax returns or pay taxes from 1982 to 1989. His plea agreement provided that the court could order defendant as a condition of supervised release to “resolve” any civil tax liability with the IRS. The district court ordered that defendant reach a repayment schedule with the IRS during his year of supervised release. The 5th Circuit held that this obligation was inconsistent with the plea agreement. The plea agreement only obligated defendant to negotiate a settlement with the IRS. Defendant never stated that he would pay all or any specific portion of his remaining tax liability. U.S. v. Stout, 32 F.3d 901 (5th Cir. 1994).
5th Circuit rejects three-year term of supervised release for Class E felony. (580) The 5th Circuit agreed that the district court improperly classified defendant’s violation of 26 U.S.C. § 7206(2) as a Class D felony, authorizing a three-year term of supervised release under 18 U.S.C. § 3583(b)(2). Each violation of § 7206(2) carries a maximum penalty of three years imprisonment, and therefore is classified as a Class E felony. Defendant should have been sentenced to a one-year rather than a three-year term of supervised release after imprisonment. U.S. v. Welch, 19 F.3d 192 (5th Cir. 1994).
5th Circuit modifies judgment to impose mandatory three-year term of supervised release. (580) Defendant pled guilty to violating 21 U.S.C. section 846. Because this was a Class C felony, defendant was subject to a maximum three-year term of supervised release. The government conceded that his five-year supervised release term exceeded the statutory maximum. The 5th Circuit agreed. Since 21 U.S.C. section 841(b)(1)(C) requires a minimum of three years supervised release, there was no need for a new sentencing proceeding. Instead, the court simply modified the district court’s judgment to impose the statutorily mandated three-year term of supervised release. U.S. v. McCaskey, 9 F.3d 368 (5th Cir. 1993).
5th Circuit says payment of restitution was not condition precedent to supervised release. (580) Defendant’s judgment required him to pay any unpaid restitution at the commencement of the term of supervised release. He argued that this unfairly conditioned his release upon pre-payment of these amounts. The 5th Circuit held that the payment of restitution was a condition subsequent, rather than a condition precedent of supervised release. If defendant should fail to pay the restitution by the time of his supervised release, all that the government could do would be to seek to enforce that order of restitution. If such collection efforts were fruitless, defendant’s supervised release still would not be revoked automatically. The Supreme Court has held that a defendant’s probation cannot be revoked without inquiring into the reasons for the failure to pay. Nothing in the statute or guidelines governing the revocation of supervised release suggests that they would be applied in violation of this principle. U.S. v. Payan, 992 F.2d 1387 (5th Cir. 1993).
5th Circuit modifies supervised release term to conform to statutory maximum and minimum. (580) The 5th Circuit agreed that the district court exceeded the statutory maximum in imposing a five year term of supervised release. Since 21 U.S.C. section 841(b)(1)(C) provides for a maximum of 20 years imprisonment, violation of that statute constituted a class “C” felony and carried a maximum supervised release term of three years. However, because section 841(b)(1)(C) requires a minimum of three years supervised release, there was no need for a new sentencing proceeding. In the interest of judicial economy, the court merely modified the judgment to impose the statutorily mandated three-year term of supervised release. U.S. v. Gracia, 983 F.2d 625 (5th Cir. 1993).
5th Circuit finds understatement of minimum potential term of supervised release was harmless. (580) At defendant’s re-arraignment hearing, the district court understated by one year the minimum potential term of supervised release. The 5th Circuit held that this constituted harmless error. Under U.S. v. Bachynsky, 934 F.2d 1349 (5th Cir.) (en banc), cert. denied, 112 S.Ct. 402 (1991), a district court’s failure to mention the possibility of supervised release does not alone constitute a total failure to address a core concern of Rule 11, provided the sentence actually cannot restrict the defendant’s liberty for a period exceeding the statutory maximum as advised. U.S. v. Gracia, 983 F.2d 625 (5th Cir. 1993).
5th Circuit affirms prohibition against employment in used-car industry for odometer tamperer. (580) Defendant was convicted of odometer tampering. The 5th Circuit affirmed a prohibition against employment in the used-car industry as a condition of defendant’s supervised release. U.S. v. Whitlow, 979 F.2d 1008 (5th Cir. 1992).
5th Circuit holds five-year supervised release term for Class C felony exceeded statutory maximum. (580) Defendant pled guilty to possession with intent to distribute cocaine base in violation of 21 U.S.C. section 841(a)(1). He was sentenced under section 841(b)(1)(C), which provides for a minimum term of supervised release of three years. As a Class C felony, 18 U.S.C. section 3583(b)(2) limited the term of supervised release to three years. The 5th Circuit vacated the five-year term of supervised release because it exceeded the statutory maximum. Section 5D1.2 does not mandate a different result. That section provides that if a defendant is convicted under a statute that requires a term of supervised release, the term should be three to five years, or the minimum required by statute, whichever is greater. The purpose of section 5D1.2 is to ensure that where there is a minimum term of supervised release required by statute, that minimum will be imposed over a lesser guideline term. U.S. v. Kelly, 974 F.2d 22 (5th Cir. 1992).
5th Circuit holds that Parole Commission setting release date for prisoner from Mexico need not impose statutory minimum term of supervised release. (580) Defendant was arrested in Mexico on drug charges and sentenced to nine years imprisonment. Pursuant to a treaty with Mexico, defendant was transferred to the United States. Under 18 U.S.C. section 4106A(b)(A), the Parole Commission is directed to determine a release date and a period and conditions of supervised release. The combined periods of imprisonment and supervised release may not exceed the sentence imposed by the foreign court. The Parole Commission ordered that defendant serve a 91-month term of imprisonment followed by an eight-month term of supervised release. Defendant argued that the Commission improperly departed below the statutory minimum three-year term of supervised release under 21 U.S.C. section 841(b)(1)(C) so that it could order a longer term of imprisonment. The 5th Circuit held that the Parole Commission was not required to impose the statutory minimum period of supervised release under section 841(b)(1)(C), because it was only determining a release date and not sentencing defendant. Molano-Garza v. U.S. Parole Commission, 965 F.2d 20 (5th Cir. 1992).
5th Circuit holds that occupational restriction on supervised release was not an upward departure requiring advance notice. (580) Defendant was forbidden from working in the car sales business during his period of supervised release. The 5th Circuit rejected his contention that this occupational restriction constituted an upward departure from the guidelines and thus required advance notice prior to sentencing. Section 5F1.5 authorizes an occupational restriction as a special condition of supervised release. The restriction here was not an upward departure because it fell within the range of sentencing conditions available to the court under the guidelines. Moreover, it would not be in the interest of justice to extend the notice requirement to cases where the term of confinement was not at stake. Judge Jolly dissented, believing that notice was required because an occupational restriction is a significant deprivation of a liberty interest. U.S. v. Mills, 959 F.2d 516 (5th Cir. 1992).
5th Circuit upholds prohibition against working in car sales but strikes down requirement to sell dealership. (580) Defendant was a used car salesman who pled guilty to turning back odometers on 12 cars he sold, and to reporting false sales prices for state sales tax purposes. The district court prohibited defendant from working in the car sales business during his period of supervised release, and ordered him to close and sell his car dealership. The 5th Circuit upheld the employment restriction as a valid condition of supervised release, but struck down as overbroad the provision requiring sale of the business. Defendant’s occupation as a car dealer obviously bore a direct relationship to his offense of tampering with odometers. However, guideline section 5F1.1 limits the scope of the occupational restriction to the minimum reasonably necessary to protect the public. It would be sufficient to ban defendant from all personal participation in the operation of this or any other car business during the term of supervised release. U.S. v. Mills, 959 F.3d 516 (5th Cir. 1993).
5th Circuit rejects supervised release term for use of a firearm during a felony. (580) Defendant was convicted of various counts, including use of a firearm in the commission of a felony, in violation of 18 U.S.C. section 924. The district court imposed a three year term of supervised release on each of the four counts, all running concurrently. Since no supervised release is allowed under the punishment provisions of section 924, the 5th Circuit reformed the sentence on the firearm count to delete the term of supervised release. U.S. v. Allison, 953 F.2d 870 (5th Cir. 1992), amended, 986 F.2d 896 (5th Cir. 1993).
5th Circuit upholds guilty plea despite court’s failure to advise defendant that he could be imprisoned if he violated terms of supervised release. (580) The 5th Circuit upheld the validity of defendant’s guilty plea, even though it found that the district court failed to advise him that if he violated the conditions of supervised release, he would face additional imprisonment. The court did not totally fail to address the subject of supervised release, and thus defendant must demonstrate that he was prejudiced, i.e. that the district court’s failure to explain the effects of supervised release caused him to plead guilty when he would not have otherwise so pled. Defendant did not meet this burden. He was willing to plead guilty with the prospect of receiving a substantial jail sentence. He did not explain why the knowledge of all of the requirements of supervised release would have caused him to go to trial rather than enter a plea. U.S. v. Arlen, 947 F.2d 139 (5th Cir. 1991).
5th Circuit remands where district court failed to advise defendant of possibility of supervised release. (580) In U.S. v. Bachynsky, 934 F.2d 1349 (5th Cir. 1991) (en banc), the 5th Circuit held that a district court’s failure to advise defendant of the possibility of a term of supervised release is not necessarily an error mandating reversal. The case may be examined for harmless error under Rule 11(h) if the sentence, including supervised release, does not exceed the statutory maximum explained to defendant. In this case, defendant’s sentence was 25 years, plus an additional three years of supervised release, plus possible additional incarceration if his supervised release was revoked. This aggregate was greater than the 25-year statutory maximum explained to defendant. The case was remanded to permit defendant to plead anew. U.S. v. Bounds, 943 F.2d 541 (5th Cir. 1991), appeal after remand, 985 F.2d 188 (5th Cir. 1993).
5th Circuit rules failure to advise about supervised release was not harmless. (580) In U.S. v. Bachynsky, 934 F.2d 1349 (5th Cir. 1991), overruling recognized by U.S. v. Watch, 7 F.3d 422 (5th Cir. 1993), the 5th Circuit overruled prior circuit precedent and held that a district court’s total failure during a plea colloquy to mention or explain the effect of supervised release does not automatically constitute a failure to address a core concern of Fed. R. Crim. P. 11 and thus does not automatically mandate reversal. Here, the district court’s total failure to mention or explain the effect of supervised release was not harmless error. In contrast to the defendant in Bachynsky, defendant faced a possible period of incarceration in excess of the maximum penalty of which he was advised. Moreover, defendant was a foreigner who did not speak English, was only 21 years old, had a sixth grade education, and pled guilty to the indictment without the benefit of a plea bargain. U.S. v. Garcia-Garcia, 939 F.2d 230 (5th Cir. 1991).
5th Circuit rules that failure to explain effect of supervised release was harmless error. (580) Defendant was informed that he could receive a term of supervised release of at least five years. However, the district court failed to advise him of the effect of that term as required by Fed. R. Crim. P. 11. The 11th Circuit held that this failure was an “inadequate address,” and the error was harmless. No substantial rights were affected because defendant was unable to show that he was prejudiced by the failure. He could not argue that he would not have pled guilty but for the error. The evidence of his guilt was substantial. The conditions of supervised release were not so onerous that they would deter him from pleading guilty particularly where, as here, the total sentence of imprisonment plus supervised release was far less than the life sentence he might otherwise have received. U.S. v. Tuangmaneeratmun, 925 F.2d 797 (5th Cir. 1991).
5th Circuit remands where court was under mistaken belief that three-year term of supervised release was mandatory. (580) Defendant was convicted of conspiracy under the pre-amendment version of 21 U.S.C. § 846. This version did not provide for a term of supervised release. However, because defendant committed a Class C felony, the guidelines required a term of supervised release of at least two years but not more than three years. The presentence report erroneously indicated that the amended version of § 846 governed defendant’s conviction, requiring a minimum three-year term of supervised release. The judge sentenced defendant on this basis. The 5th Circuit remanded for resentencing. Although defendant’s sentence was within the proper guideline range, it was proper to remand the case because the district court was unaware of its discretion to sentence defendant to a two year term of supervised release. U.S. v. Badger, 925 F.2d 101 (5th Cir. 1991).
5th Circuit finds failure to inform defendant of maximum term of supervised release was harmless error. (580) Defendant contended that his plea should be vacated because the district court failed to advise him of the maximum possible period of supervised release. The court informed defendant twice that the maximum possible penalty was 20 years imprisonment and/or a one million dollar fine, and in addition, a term of supervised release of at least three years. Defendant ultimately received a five year term of supervised release. The 5th Circuit found that it was harmless error to fail to advise defendant of the maximum term of supervised release. It was unreasonable to believe that defendant would not have pled guilty had he been advised of the maximum term for supervised release. U.S. v. Hatchett, 923 F.2d 369 (5th Cir. 1991).
5th Circuit upholds supervised release under Assimilative Crimes Act even though state law provides for parole. (580) The Assimilative Crimes Act makes a state offense committed on a federal installation a federal crime, and provides that a person convicted under the Act receive punishment that is “like” the punishment that the state would impose. Defendant contended that it was improper to impose a term of supervised release on him, since state law only provided for parole. The 5th Circuit found that parole and supervised release were sufficiently similar to satisfy the “like punishment” requirement. However, one important difference is that parole occurs before the completion of the period of incarceration, and does not extend a sentence beyond the statutory maximum, whereas a person convicted under federal law can be required to undergo supervised release after serving the maximum prison term. Therefore, under the Assimilative Crimes Act, when the applicable state law provides for parole, a sentence of imprisonment plus supervised release is “like punishment” so long as the period of imprisonment plus the period of supervised release does not exceed the maximum sentence allowable under state law. U.S. v. Marmolejo, 915 F.2d 981 (5th Cir. 1990).
5th Circuit holds that supervised release is authorized by 18 U.S.C. § 3583(a). (580) Defendant pled guilty to conspiracy to possess with intent to distribute more than 100 grams of heroin in violation of 21 U.S.C. sections 841(a)(1), 841(b)(1) and 846. Defendant contended that the district court erred in sentencing him to a term of supervised release because the 1981 version of § 846 in effect when defendant was sentenced allowed only the imposition of imprisonment, a fine, or both. The 5th Circuit rejected the argument, finding that 18 U.S.C. § 3583(a) provided an independent basis for imposing a term of supervised release on defendant. U.S. v. Badillo, 909 F.2d 849 (5th Cir. 1990).
5th Circuit upholds supervised release term even though not specified in the statute of conviction. (580) Defendants were convicted of aiding and abetting the submission of fraudulent immigration documents in violation of 8 U.S.C. § 1160(b)(7)(A)(ii). That section does not provide for the imposition of a term of supervised release. Nevertheless the 5th Circuit held that supervised release is made applicable to a violation of that statute by 18 U.S.C. § 3583(a). The 5th Circuit rejected the defendant’s arguments that this violated their rights to due process and “fair warning” of the punishment assignable to their crime, refusing to reduce their sentence “merely because actual notice of the punishment . . . involved reading two unambiguous statutes rather than one.” U.S. v. Camacho-Dominguez, 905 F.2d 82 (5th Cir. 1990).
5th Circuit holds that defendant had no standing to challenge imposition of fine under the guidelines. (580) Defendant argued that the Commission violated its statutory mandate by making the imposition of minimum fines and minimum terms of supervised release mandatory under the guidelines. The 5th Circuit held that defendant had no standing to make this argument because he was not fined since he had no assets. The court held that the imposition of the special assessment under 18 U.S.C. § 3013 was not a fine within the meaning of the guidelines. U.S. v. Hurtado, 899 F.2d 371 (5th Cir. 1990).
5th Circuit upholds imposition of minimum terms of supervised release against statutory challenge. (580) Defendant argued that the Commission violated its statutory mandate by requiring minimum terms of supervised release for felonies. The 5th Circuit rejected the argument, holding that the Commission was given broad authority to implement Congress’ specific goals and policies. The Commission’s decision to mandate minimum terms of supervised release for felony convictions was “entirely consistent” with the statutory mandate. U.S. v. Hurtado, 899 F.2d 371 (5th Cir. 1990).
6th Circuit says failure to explicitly explain reason for life term of supervised release was not plain error. (580) Defendant pled guilty to attempting to entice a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b). The Sixth Circuit upheld a lifetime term of supervised release, even though the court failed to explicitly give its reasons for the term. The guidelines urge district courts to impose the maximum term available for sex offenders. See § 5D1.2(b). Section 4B1.5 carries its own presumption that a life term of supervised release is appropriate. Nonetheless, the district court was still required to explain why it chose this term. Here, the court did not explicitly give its reasoning for selecting life term, but did fully explain why it concluded that 190 months of incarceration was appropriate. “In outlining its reasons for imposing the sentence of incarceration … the district court was also outlining the reasons supporting the [term] of supervised release,” even though the court did not do so explicitly. Defendant failed to show that the court’s failure to explicitly lay out its reasoning suporting a life term of supervised release was plain error. U.S. v. Babcock, 753 F.3d 587 (6th Cir. 2014).
6th Circuit reverses for failure to give reasons for special conditions of supervised release. (580) Defendant pled guilty to failing to register as a sex offender. The court imposed four special conditions of supervised release. Defendant could not: (1) possess any pornography, either adult or child; (2) have any contact with any child under 18, (3) use sexually-oriented telephone numbers or computer services; and (4) possess a computer with access to the Internet. The Sixth Circuit found that the district court erred procedurally by failing to explain its reasons for any of the special conditions. The error was not harmless. The record did not clarify how the conditions reasonably related to defendant’s rehabilitation or protection of the public. Forbidding defendant from possessing any pornography or calling a sexually-oriented phone number did not reasonably relate to his offense of failing to register as a sex offender. His offense did not involve pornography of any kind. The record also did not justify barring defendant from having contact with his own children. Finally, banning defendant from using the internet could not have a rehabilitative effect because the crime for which defendant was convicted did not involve the use of the Internet. U.S. v. Doyle, 711 F.3d 729 (6th Cir. 2013).
6th Circuit upholds requiring defendant to participate in drug treatment as directed by probation officer. (580) One of the conditions of defendant’s supervised release required him to participate in a program of both drug testing and treatment, as directed by his probation officer. The Sixth Circuit rejected defendant’s argument that this condition was an impermissible delegation of judicial authority. Under U.S. v. Logins, No. 11-2514 (6th Cir. Oct. 26, 2012) (unpublished), when imposing a special condition of drug treatment, the district court need only decide whether such treatment is required. Decisions such as which program to select and how long it will last can be left to the probation officer. The details of the treatment, including how often and how many drug tests will be performed, can be left to the expertise of the professionals running the program. The special condition here was proper and did not give the probation officer the authority to determine whether a drug treatment program would be imposed. The court also did not improperly delegate its authority by allowing the drug treatment professionals to design the course of treatment, because the court specifically required that the treatment include testing. U.S. v. Carpenter, 702 F.3d 882 (6th Cir. 2012).
6th Circuit bars defendant from loitering where minors congregate. (580) Defendant pled guilty to knowingly coercing and enticing a minor to engage in sexual activity. The Sixth Circuit upheld a special condition of supervised release barring defendant from “loitering where minors congregate, such as playgrounds, arcades, amusement parks, recreation parks, sporting events, shopping malls, swimming pools, etc.” The condition was not unconstitutionally vague. Because defendant was convicted of sexual enticement of a minor, prohibiting him from loitering near places where children congregate was reasonably related to the goal of public safety. U.S. v. Zobel, 696 F.3d 558 (6th Cir. 2012).
6th Circuit holds that ban on “sexually suggestive” material was overbroad. (580) Defendant pled guilty to knowingly coercing and enticing a minor to engage in sexual activity. He argued that a special condition of supervised release barring him from possessing pornography or sexually explicit or suggestive materials was unconstitutionally vague and overbroad. The Sixth Circuit upheld the ban on pornography and sexually explicit material, but agreed that the condition barring him from possessing or viewing sexually suggestive materials was overbroad. Defendant’s addiction to pornography was a risk factor that increased his likelihood of recidivism. Therefore, it was not plain error to ban the possession of such materials on grounds that this would decrease defendant’s likelihood of recidivism. However, the part of this condition that banned materials that were merely sexually suggestive was facially overbroad. This condition would bar defendant from possessing or viewing anything containing a mere hint or suggestion of sex, “an extremely wide prohibition that, in today’s society, would extend to a host of both highbrow and mainstream literature, art, music, television programs, and movies.” U.S. v. Zobel, 696 F.3d 558 (6th Cir. 2012).
6th Circuit upholds barring defendant from contact with minors without prior approval. (580) Defendant pled guilty to knowingly coercing and enticing a minor to engage in sexual activity. The Sixth Circuit upheld a special condition of supervised release barring defendant from having any contact with minors under 18 without prior approval. The condition did not bar mere incidental interactions with minors. The district court explained that defendant’s sentence was largely based on “the safety of the community” and his moderate risk of re-offending. Because defendant enticed two minors to perform sexual acts, this condition, which restricted his access to minors, was “reasonably related to the … protection of the public.” The circuits are split on whether the condition would unreasonably restrict his ability to have contact with his own children, should he one day become a father. Because of the split in authority, this meant any error was not plain. Moreover, should this condition become too onerous in the future, defendant was free to petition the district court to modify it. U.S. v. Zobel, 696 F.3d 558 (6th Cir. 2012).
6th Circuit rejects special condition requiring defendant to seek employment outside field of boxing. (580) Defendant was convicted of drug charges. He challenged on appeal a special condition of supervised release prohibiting him from obtaining full time work as a boxer upon his release from prison. The Sixth Circuit rejected the occupational restriction as unreasonable. The district court noted defendant’s age and the difficulties of competing in a sport as one gets older, stating “it is time to move on” and “you really need to go ahead and move past it.” At no point did the district court address the relationship between boxing and the instant offense, nor did the court address the reason why banning defendant from boxing would better protect the public. The district court’s justification appeared to be solely that defendant was too old to maintain full-time work boxing, rather than any relationship between boxing and drug trafficking. This was not a valid reason for imposing an occupational restriction. U.S. v. Stepp, 680 F.3d 651 (6th Cir. 2012).
6th Circuit rules defendant waived challenges to special conditions of supervised release. (580) Defendant challenged five of the special conditions of supervised release imposed by the district court as not narrowly tailored and not reasonably related to his rehabilitation or protection of the public. The Sixth Circuit agreed with the government that defendant knowingly and voluntarily waived his right to appeal the special conditions in his plea agreement, and therefore his challenge to the special conditions was foreclosed. Defendant entered into the plea agreement with the government which contained a “waiver of appeal and post-conviction attack” provision. He initialed every page of the plea agreement, indicating that he was aware of the waiver at the time he entered into the plea agreement. After the district court explained the waiver of appellate rights in the plea agreement, defendant indicated that he understood that he had “entered into a plea agreement which waives some or all of [his] rights to challenge the judgment of conviction and the sentence by way of appeal or habeas corpus” and explicitly confirmed that he agreed to the terms of the appellate waiver in the agreement. The plain language of the waiver indicated that defendant waived his right to challenge the special conditions. U.S. v. Ferguson, 669 F. 3d 756 (6th Cir. 2012).
6th Circuit remands for failure to articulate rationale for lifetime term of supervised release. (580) Defendant pled guilty to possessing child pornography. Although both parties requested a 10-year term of supervised release, the court imposed a lifetime term, with standard and special conditions. Defendant did not object below to the length or conditions of his supervised release. The Sixth Circuit remanded because the record did not show that the district court considered any of the pertinent § 3553(a) factors when it imposed the term of supervised release, and the court did not explain why it chose a life term over the parties’ recommendation for a 10-year term. Without proper analysis and an explanation for the length of the supervised release term chosen, the appellate court could not review the reasonableness of the sentence. U.S. v. Inman, 666 F.3d 1001 (6th Cir. 2012).
6th Circuit remands for court to explain requirements for drug and alcohol testing. (580) Defendant pled guilty to possession of child pornography. The district court imposed a lifetime term of supervised release, with various requirements for drug and alcohol testing. The court imposed a mandatory condition requiring defendant to submit to drug testing within 15 days of release from imprisonment, and to submit to at least two additional periodic drug tests. The court also prohibited defendant from consuming any alcoholic beverages, and required him to inform the probation office in writing of every prescription medication in his possession upon his release from prison. The Sixth Circuit remanded for the court to explain its drug and alcohol restrictions. Nothing suggested that defendant had any problem with alcohol or drug dependence; yet he was now barred from consuming alcohol for life, required to submit to periodic drug testing, and required to keep the probation office informed of any prescription medications in his possession. Because defendant appeared to present a low risk of future substance abuse, the district court should explain why these conditions of supervised release were warranted. U.S. v. Inman, 666 F.3d 1001 (6th Cir. 2012).
6th Circuit remands where court gave no reasons for lifetime video and camera restrictions. (580) Defendant pled guilty to possession of child pornography, and was sentenced to a lifetime term of supervised release. As a condition of supervised release, the district court allowed defendant to have restricted access to computers, but precluded him from using any device capable of creating pictures or video. This special condition effectively prohibited defendant for his lifetime from possessing a cell phone with photo or video capability, a video camera, or any other device capable of creating pictures or videos, even if such devices might be used appropriately in connection with employment or family activities. The court also prohibited defendant from renting or using a post office box or storage facility. The Sixth Circuit questioned the reasons for these restrictions, particularly since the underlying conviction involved receiving child porn through the Internet. On remand, the district court should consider whether the search provision in the Sex Offender Registration and Notification Act would be sufficient to alleviate any concerns about defendant’s use of electronic equipment, a postal box, or a storage unit. U.S. v. Inman, 666 F.3d 1001 (6th Cir. 2012).
6th Circuit rejects condition requiring defendant to provide probation office with personal financial information. (580) Defendant pled guilty to possession of child pornography. He challenged a special condition of supervised release requiring him to provide the probation office with any requested personal financial information. The Sixth Circuit rejected this condition without any additional explanation. Defendant’s crime was not financial in nature. While defendant’s finances might give a probation officer insight into whether defendant was involved in illegal conduct, the panel could not approve a requirement that defendant disclose any and all financial information to the probation officer without first reviewing the district court’s explanation as to why such a condition was necessary in light of the pertinent sentencing factors. U.S. v. Inman, 666 F.3d 1001 (6th Cir. 2012).
6th Circuit upholds condition of release barring defendant from contacting members of postal service. (580) Defendant sent six threatening letters to a federal district judge who had sentenced him to prison. One of the letters contained a white powder, which was later determined to be a harmless artificial sweetener. Defendant pled guilty to committing a hoax involving a biological weapon, in violation of 18 U.S.C. § 1038(a)(1). The district court sentenced him to the statutory maximum of 60 months, and then, as a condition of supervised release, barred defendant from contact with any member of the postal service. The Sixth Circuit upheld the condition of supervised release. Defendant used the postal service to commit his crimes, so the supervised release condition was reasonably related to the “nature and circumstances of [his] offense.” 18 U.S.C. § 3553(a)(1). The condition also served to deter defendant against future criminal conduct, including retaliation against postal employees. The condition was not greater than necessary. Defendant was only prohibited from contacting members of the postal service; he was not barred from using the service altogether. U.S. v. Nixon, 664 F.3d 624 (6th Cir. 2011).
6th Circuit holds that court gave inadequate explanation for re-imposing same term of supervised release. (580) Defendant was convicted of tax fraud, and originally sentenced to 21 months of imprisonment plus one year of supervised release. The Supreme Court remanded the case for resentencing in light of Booker. The district court reimposed the same sentence. However, defendant had completed his 21-month sentence long before he was resentenced. The term of supervised release was still pending, however, because defendant was serving another sentence on a separate conviction. Defendant argued that the court should reconsider the term of supervised release because the district court allegedly treated that portion of the sentence as mandatory. The Sixth Circuit agreed with defendant that the supervised-release term was summarily imposed without an adequate explanation. The problem was not the court’s failure to repeat its §3553(a) analysis with respect to the supervised-release term. Rather, the procedural error stemmed from the court’s failure to recognize that defendant’s completion of his custodial sentence rendered that portion moot at resentencing. U.S. v. O’Georgia, 569 F.3d 281 (6th Cir. 2009).
6th Circuit bars defendant from working in financial services industry and requires him to file tax returns. (580) Defendant, the director and president of a financial advisory firm, was convicted of numerous counts of income tax evasion and fraud. As special conditions of supervised release, the district court ordered defendant to pay the balance he owed the Ohio Attorney general, to refrain from having any association with the financial services industry, except as a consumer, and to file within the first six months of supervision amended tax returns for all relevant years. The Sixth Circuit upheld the conditions. Requiring someone convicted of six counts of tax evasion to file amended tax returns within six months of release is not an abuse of discretion. Nor was it an abuse of discretion to order defendant to have no association with the financial services industry. The court was concerned about defendant’s working in the financial services industry again when he had already demonstrated that he could not be trusted with other people’s money. As for the money owed the Ohio Attorney General, requiring him to honor this settlement would allow defendant to develop the habit of paying obligations when they were due. U.S. v. May, 568 F.3d 597 (6th Cir. 2009).
6th Circuit says court can order community confinement as condition of supervised release. (580) Defendant argued for the first time on appeal that the district court lacked authority to sentence him to a community corrections facility because congressional amendments to the Mandatory Victims Restitution Act of 1996 (MVRA), removed such authority. The Sixth Circuit held that the 1996 MVRA amendments did not remove the district court’s authority to order a sentence of community confinement as a condition of release. The MVRA amendment renumbered §3565(b), shifting the community confinement provision from §3563(b)(12) to §3563(b)(11). Because the MVRA did not also renumber the cross-reference found in §3583(d)(3), the community confinement provision fell into the gap not cross-referenced by the supervised release statute. However, there was no indication in any of the legislative history surrounding the MVRA that Congress intended to deprive district courts of the power to impose community confinement as a condition of release. U.S. v. Gilpatrick, 548 F.3d 479 (6th Cir. 2008).
6th Circuit holds that challenge to supervised release condition was not ripe for review. (580) Defendant pled guilty to using a computer and telephone for purposes of persuading a minor to engage in sexual acts, and was sentenced to 188 months’ imprisonment, to be followed by supervised release for life. As a condition of supervised release, the court ordered that defendant participate in a specialized sex offender treatment program that might include the use of a penile plethysmograph. The Sixth Circuit held that defendant’s challenge to this supervised release condition was not ripe for review. Although conditions of supervised release may be ripe for appellate review immediately following their imposition at sentencing, the panel found that defendant’s rights would be better served if his appeal was preserved until after he was released from prison. First, there was no guarantee that defendant would ever be subject to plethysmograph. The condition only involved the potential use of a penile plethysmograph. Defendant will not be released from prison until 2021 – 14 years from now. He would be 51 years old and would have served over 15 years in prison, during which time he would likely have received sex offender treatment. The panel had no idea whether the probation office would determine that such treatment would be necessary at that time. Finally, it was unclear whether, by the year 2021, penile plethysmograph testing would still be used. Such testing implicates significant liberty interests and further, its reliability is questionable. The court did not want to speculate what would happen by 2021 with respect to penile plethysmograph testing. U.S. v. Lee, 502 F.3d 447 (6th Cir. 2007).
6th Circuit holds that single consideration of sentencing factors for both incarceration and supervised release was procedurally reasonable. (580) For an incarceration sentence, procedural reasonableness requires that the district court consider the factors in 18 U.S.C. § 3553(A), including the advisory guideline range. For sentencings of supervised release, the sentencing court is required to “consider the factors set forth in § 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7).” 18 U.S.C. § 3583(C). In sentencing defendant to 135 months’ imprisonment and a lifetime term of supervised release for his child pornography offenses, the sentencing court engaged in a single consideration of the sentencing factors, which embraced both the incarceration sentence and the supervised release term. Its consideration was thorough; the court named and discussed the effect on its sentencing decision of almost all of the sentencing factors in § 3553(a), and thus almost all of the factors specified for consideration in § 3583(c). The Sixth Circuit held that the district court complied with the requirements of procedural reasonableness. U.S. v. Presto, 498 F.3d 415 (6th Cir. 2007).
6th Circuit holds that lifetime term of supervised release for child porn offender was reasonable. (580) Defendant was convicted of receiving and possessing child pornography. He was sentenced to 135 months’ imprisonment and, pursuant to the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, a lifetime term of supervised release. Defendant claimed that the imposition of lifetime supervision in all child pornography cases results in a disparity in sentencing between offenders, since there would be no incremental increases for more serious offenses of conviction. The Sixth Circuit held that the lifetime supervised release term was reasonable. The district court did not mechanically sentence defendant to lifetime supervised release. Instead, the court found that his offense was a more serious offense than that of other defendants convicted of receipt of child pornography. Defendant had not only possessed pictures of minors being sexually abused, but had himself molested a child. His contention that the sentence was disproportionate to the gravity of the offense was without merit. Defendant “significantly underestimate[d] the seriousness of his offense.” U.S. v. Presto, 498 F.3d 415 (6th Cir. 2007).
6th Circuit rejects special condition of release requiring sex offender treatment. (580) Defendant was convicted of being a felon in possession of a firearm. The Sixth Circuit struck down a special condition of release requiring him to participate in sex offender treatment. The condition was not reasonably related to either “the nature and circumstances of the offense” or “the history and characteristics of the defendant.” The offense was not related at all to his felon in possession offense. In addition, it was not related to “the history and characteristics of the defendant.” The sex offenses that defendant committed in 1988 (17 year before the imposition of the condition) were too remote in time to be reasonably related to a sex-offender condition. The special condition could not be justified by his 2004 stalking conviction. The conviction was based on an obscene telephone call defendant made, and while an “obscene” telephone call might be sexual in nature, it need not be. U.S. v. Carter, 463 F.3d 526 (6th Cir. 2006).
6th Circuit holds that supervised release condition barring defendant from profiting from crime was not plain error. (580) The district court imposed a special condition of supervised release prohibiting defendant from profiting from the production of books, movies or other media products as a result of his involvement in the current offense. Defendant challenged this condition for the first time on appeal. Assuming without deciding that the imposition of the condition constituted error, the Sixth Circuit ruled that the error was not “plain” or “obvious.” At least one other Circuit has upheld an identical provision. U.S. v. Terrigno, 838 F.2d 371 (9th Cir. 1988). This indicates that “reasonable minds could differ as to the legality of the disputed condition,” and therefore, any error was not “plain.” U.S. v. Blackwell, 459 F.3d 739 (6th Cir. 2006).
6th Circuit holds that authority to impose new supervised release not extinguished by maximum post-revocation prison term. (580) Section 3583(e) provides that a court may revoke a term of supervised release, and require the person to serve in prison all or part of the term of supervised release without credit for time previously served on post release supervision …” The Sixth Circuit held that a district court’s § 3583(e) authority to impose a supervised-release term to follow a post-revocation prison term is not extinguished simply because that prison term is the maximum. The Supreme Court has interpreted § 3583(e)(3) to “limit the possible prison term to the duration of the term of supervised release originally imposed…. But nothing in these specific provisions suggests that the possibility of supervised release following imprisonment was meant to be eliminated.” Johnson v. U.S., 529 U.S. 694, 712-13 (2000). Thus, even when the district court imposes the maximum post revocation prison sentence authorized by § 3583(e)(3), the balance of the initial term of supervised release can remain effective as a term of supervised release when the reincarceration is over. U.S. v. VanHoose, 437 F.3d 497 (6th Cir. 2006).
6th Circuit holds that Ex Post Facto Clause is not implicated by erroneous reliance on § 3583(h). (580) In 1994, defendant was sentenced to prison and a term of supervised release. He violated supervised release, and the district court sentenced defendant to the maximum statutorily-authorized prison term, to be followed by a new term of supervised release. The court invoked 18 U.S.C. § 3583(h), which went into effect after defendant was originally sentenced. The Sixth Circuit held that it was erroneous for the court to impose defendant’s post-revocation sentence pursuant to § 3583(h) rather than § 3583(e). However, this error did not have constitutional significance. See Johnson v. U.S., 529 U.S. 694 (2000) (holding that post-revocation sentence did not implicate Ex Post Facto Clause because Congress did not intend § 3583(h) to have retroactive effect). Section § 3583(h) applies “only to cases in which that initial offense occurred after the effective date of the amendment, September 13, 1994.” Thus, the only question was whether defendant’s post-revocation sentence was permissible under § 3583(e)(3). U.S. v. VanHoose, 437 F.3d 497 (6th Cir. 2006).
6th Circuit says supervised release in drug statutes is not subject to limits in 18 U.S.C. § 3583(b). (580) The maximum term of supervised release that may be imposed under 18 U.S.C. § 3583(b) is three years. However, this conflicts with 21 U.S.C. § 841, which provides a minimum term of three years of supervised release if the drug quantity is not specified (and there is no prior conviction) and a minimum term of five years if the quantity is fifty grams or more of pure methamphetamine. 21 U.S.C. § 841(b)(1) (A). In U.S. v. Page, 131 F.3d 1173 (6th Cir. 1997), the Sixth Circuit considered the two statutory directives and affirmed a five-year term of supervised release under § 841. The court found that “these specific provisions [of § 841(b)] are excluded from the limits on supervised release provided for in § 3583(b).” Id. at 1180; Accord U.S. v. Pratt, 239 F.3d 640, 646-48 (4th Cir. 2001). Thus, Page foreclosed defendant’s argument that the court erred in sentencing him to five years of supervised release. U.S. v. King, 272 F.3d 366 (6th Cir. 2001).
6th Circuit affirms special release conditions permitting random warrantless searches and total ban on driving. (580) Based on defendant’s 20-year record of habitual intoxication, recidivist illegal possession of drugs, pattern of reckless vehicular crimes, and multiple serious firearms offenses, plus demonstrated psychological abnormalities, the district court imposed, among other things, two special conditions of supervised release. One required defendant to submit to random warrantless searches of his person and/or effects, and the other barred defendant from operating a motor vehicle. The Sixth Circuit held that the special conditions were not plain error. The warrantless search condition was “a necessary and justifiable means” to enforce the court’s proscriptions against defendant’s possession of drugs, weapons, and/or other contraband; and to detect criminal activity or other probation violations. Moreover, the provision was “essential” for the protection of the probation officer. The driving ban was reasonably related to defendant’s “demonstrative past wanton automotive violations, including multiple episodes of reckless operation while chemically impaired and/or in possession of dangerous weapons.” Moreover, the condition was independently supported by “the nature and circumstances” of the offense of conviction. U.S. v. Kingsley, 241 F.3d 828 (6th Cir. 2001).
6th Circuit holds that supervised release term was valid despite court’s failure to include in oral sentence. (580) Defendant argued that the court had no jurisdiction to revoke his supervised release because the supervised release term was invalid. He cited the widely accepted rule that if there is a discrepancy between the oral pronouncement of a sentence and the written judgment, the oral sentence generally controls. The sentencing court’s oral pronouncement did not mention the possibility of supervised release, while the written judgment and commitment order did. The Sixth Circuit held that the supervised release term was valid, and thus the court had jurisdiction to revoke it. A supervised release term was mandatory under the applicable guidelines. To the extent the court erred in failing to mention the term orally at sentencing, the error was harmless, and was corrected later the same day when the written judgment and commitment order was filed in the district court. Also, defendant failed to object to his sentence once the written judgment and commitment order was entered, did not raise this issue on direct appeal, or in his § 2255 motion. Thus, he waived his opportunity to challenge the imposition of the supervised release term. U.S. v. Cofield, 233 F.3d 405 (6th Cir. 2000).
6th Circuit requires defendant to notify present and future employers of embezzlement conviction. (580) While working for a bank, defendant electronically transferred money from a customer’s account to his own account. Defendant later explained that at the time collection agencies were calling and he panicked and took the “easiest way out.” Defendant argued that a condition of supervised release requiring him to notify his employer of his embezzlement conviction was arbitrary and unreasonable. The Sixth Circuit held the employer notification requirement was reasonably related to the nature and circumstances of defendant’s crime. At the time of the plea hearing, defendant had not told his employer nor his great aunt with whom he lived about his conviction. The court was rightly bothered by defendant’s reluctance to acknowledge his wrongdoing to those most likely to be impacted. The judge took into consideration that defendant’s current job as a dispatcher did not involve handling money, financial records, or valuable cargo. Nonetheless, the court found that the minimally intrusive notification requirement would alleviate potential threats to current and future employers. U.S. v. Ritter, 118 F.3d 502 (6th Cir. 1997).
6th Circuit rules court tolled supervised release upon defendant’s deportation. (580) Defendant pled guilty to immigration fraud charges. The district court imposed as special conditions of supervised release that (1) defendant agree to voluntary deportation, (2) he would not reenter the U.S. illegally, and (3) if he was permitted, “at any time in the future,” to reenter the U.S., he would report to the probation office within 48 hours of reentry, at which time the period of supervised release would be “resumed.” The Sixth Circuit held that the condition meant that defendant’s supervised release would be tolled upon his deportation and would not begin again unless and until he returned to the U.S. The period of supervised release could only “resume” upon defendant’s return if suspended during his absence. The district court had the authority to provide for the supervised release term to be tolled. Section 5D1.3 gives a sentencing court broad discretion in fashioning appropriate conditions of supervised release. Judge Moore dissented. U.S. v. Isong, 111 F.3d 428 (6th Cir. 1997).
6th Circuit permits terminating supervised release after one year despite mandatory three-year term. (580) Under 18 U.S.C. § 3583(e)(1), enacted in 1984, a district court has discretionary authority to terminate a term of supervised release after one year if it is satisfied that such action is warranted. The Anti-Drug Abuse Act of 1986 requires courts to impose a minimum three-year term of supervised release for certain drug offenses. The Sixth Circuit held that a district court retains discretionary authority under § 3583(e)(1) to terminate a term of supervised release after one year, even if the defendant is subject to a mandatory three-year term of supervised release under 21 U.S.C. § 841(b)(1)(C) and 18 U.S.C. § 3583(a). The sentencing phase is different than the post-sentencing phase. The two statutes are not in conflict, and thus, a court must give effect to both of them. U.S. v. Spinelle, 41 F.3d 1056 (6th Cir. 1994).
6th Circuit upholds adding mandatory term of supervised release to sentence after initial sentencing order. (580) The district court, sua sponte, added a three-year term of supervised release to defendant’s sentence one week after the initial sentencing order was filed. Following the 4th Circuit’s decision in U.S. v. Cook, 890 F.2d 672 (4th Cir. 1989), the 6th Circuit found that a district court has the authority to amend a sentence sua sponte (a) within the time for appeal and (b) to conform the sentence to the mandatory provisions of the guidelines. In this case the amended judgment was entered one week after the initial judgment, within the 10-day time limit for appeals. Guideline § 5D1.1(a) provides for a mandatory term of supervised release when “a sentence of imprisonment” of more than one year is imposed. Defendant’s “split sentence” of seven months imprisonment and seven months community confinement was sufficient to require come within the guideline. However, the court’s authority to amend the sentence only allowed it to conform defendant’s sentence to the mandatory requirements of the guidelines, in this case two years of supervised release. U.S. v. Strozier, 940 F.2d 985 (6th Cir. 1991).
7th Circuit vacates life term of supervised release where court did not provide reasons. (580) Defendant was convicted of possessing child pornography. The district court sentenced him to concurrent 115-month terms of imprisonment, and a lifetime term of supervised release. The statutory supervised-release range was five years to life, but § 5D.2(b)(2) recommended the maximum term because the case involved sex offenses. The district judge imposed the maximum term (life) but did not provide any reasons for why he felt a life term of supervised release was appropriate. Defendant contended, and the government agreed, that this was an error requiring reversal. The Seventh Circuit vacated the life term of supervised release without further discussion. U.S. v. Poulin, 745 F.3d 796 (7th Cir. 2014).
7th Circuit vacates supervised release conditions for child porn defendant for inadequate explanation. (580) Defendant was convicted of possessing child pornography. He challenged two conditions of supervised release: (1) a prohibition of unsupervised contact with minors, including his own son and family members; and (2) a prohibition on accessing and possessing adult pornography. The government agreed that the court should vacate the conditions, conceding that the record lacked the explanation necessary to review the validity of the challenged conditions. This was the approach followed in U.S. v. Shannon, 743 F.3d 496 (7th Cir. 2014), a case involving a lifetime ban on adult pornography. The Seventh Circuit found the same approach appropriate here, and vacated the conditions of defendant’s supervised release. U.S. v. Poulin, __ F.3d __ (7th Cir. Mar. 6, 2014) No. 13-1592.
7th Circuit reverses lifetime ban on possession of porn for inadequate explanation. (580) While on supervised release for possessing child pornography, defendant violated the conditions of his release by attaching a web camera to his computer. He also viewed several sexually explicit websites. The district court revoked defendant’s supervised release, and sentenced him to 28 days imprisonment and a lifetime term of supervised release. Defendant contested a special condition of his supervised release: a ban on the possession of any sexually explicit material. This ban was not restricted to material involving minors. Nor was it limited to visual depictions. And it was not discussed before or during the hearing, by anyone, including the judge. In light of the lack of findings or explanation for the lifetime ban on the possession of all sexually explicit material, the Seventh Circuit vacated the condition and remanded for further proceedings. Adult pornography, unlike child pornography, enjoys First Amendment protection, and courts must be especially cautious when considering a ban on possessing adult pornography. Adequate findings are especially important when the subject matter of the ban is a lifetime ban on otherwise-legal material. U.S. v. Shannon, 743 F.3d 496 (7th Cir. 2014).
7th Circuit approves repayment of unrecovered “buy money” as condition of supervised release. (580) Defendant pled guilty to being a felon in possession of a firearm. A confidential informant had bought three guns from him, for $400 apiece, with money supplied by the government. The purchases provided the essential evidence of the defendant’s guilt, although the $1200 that the defendant had received in payment for the guns was never recovered. As a condition of supervised release, he was ordered to repay the buy money to the government at a minimum rate of $50 per month, which would enable him to repay the full $1200 in exactly 24 months. The Seventh Circuit upheld the condition. Previous circuit cases, starting with U.S. v. Daddato, 996 F.2d 903 (7th Cir. 1993), never questioned the validity of such a condition. The panel rejected defendant’s request to overrule its previous decisions. Repayment of buy money resembles payment of a fine, but here, the court declined to impose a fine because of defendant’s “financial situation.” It should have explained why, if the defendant’s financial situation precluded a fine, it did not preclude an order to repay buy money. However, the lack of explanation was harmless. U.S. v. Williams, 739 F.3d 1064 (7th Cir. 2014).
7th Circuit finds vagueness exception to appellate waiver. (580) Defendant pled guilty to receipt of child pornography under an agreement that contained an appeal waiver. Nonetheless, he challenged on appeal a special condition of supervised release that barred him from viewing or listening “to any pornography or sexually stimulating material or sexually oriented material or patronize[zing] locations where such material is available.” The Seventh Circuit held that there is a vagueness exception to appellate waivers, and that this condition was unconstitutionally vague and overbroad. The panel agreed with defendant that a waiver cannot preclude review of an obvious due process violation based on vagueness. Although it is generally unproblematic to knowingly waive a constitutional right or to lose a constitutional right via special conditions of supervised release, there was a crucial distinction here. No reasonable person could know what conduct was or was not proscribed by the challenged special condition. Read literally, the challenged special condition might preclude defendant from using a computer or entering a library because both are “locations” where “sexually stimulating material … is available.” U.S. v. Adkins, 743 F.3d 176 (7th Cir. 2014).
7th Circuit rejects post-imprisonment conditions absent supervised release term. (580) Defendant, a noncitizen felon, was sentenced to prison with no supervised release. Under the heading “additional imprisonment terms,” the judgment stated that upon defendant’s completion of his term of incarceration, he was to be turned over to immigration authorities for deportation proceedings. The Seventh Circuit held that absent a term of supervised release, the “additional imprisonment term” was not authorized. Federal judges may impose restrictions on a defendant, effective after he completes the prison term to which the judge sentenced him, only as conditions of supervised release. U.S. v. Zamudio, 718 F.3d 989 (7th Cir. 2013).
7th Circuit rejects broad computer restriction as condition of supervised release. (580) Defendant was convicted of failing to register as a sex offender. The Seventh Circuit rejected a supervised release condition that required defendant to install internet monitoring software on his computers; to submit to searches of his person, car, computer, and other property; and to allow his computer equipment to be removed for more thorough examinations. The broad computer-related terms of this condition were not reasonably related to defendant’s offense, history, or personal characteristics. The record did not indicate that a computer played any role in either the failure to register offense or his 1994 conviction for an attempted lewd and lascivious act in the presence of child. Nor was there any evidence that defendant had ever used a computer to commit any crime. It was also unclear how the broad warrantless search and seizure authority was connected to defendant’s offense, history, and personal characteristics, or how it was reasonably necessary to further the deterrence, public protection, and rehabilitative goals in 18 U.S.C. § 3583(d)(2). U.S. v. Goodwin, 717 F.3d 511 (7th Cir. 2013).
7th Circuit rejects condition of supervised release prohibiting contact with minors. (580) Defendant was convicted of failing to register as a sex offender, and was sentenced to imprisonment and supervised release, subject to ten special conditions. The Seventh Circuit rejected Condition 5, prohibiting defendant from having any contact with minors, except in the presence of an approved adult who was aware of defendant’s prior sex offense. The panel was skeptical that such a sweeping condition could be reasonably related to defendant’s offense, history, and characteristics, particularly since there was no evidence in the record of any incidents involving minors in the nearly two decades since defendant’s 1994 conviction. It was not clear why the district court imposed the no-contact condition. U.S. v. Goodwin, 717 F.3d 511 (7th Cir. 2013).
7th Circuit rejects condition defendant from possessing material that “depicts or alludes to sexual activity.” (580) Defendant was convicted of failing to register as a sex offender. The Seventh Circuit rejected a supervised release condition that prohibited defendant from possessing material that “depicts or alludes to sexual activity.” Defendant’s failure to register under SORNA had nothing to do with material depicting or alluding to sexual activity. Moreover, there was nothing in the record that shed light on a hypothetical connection between defendant’s 1994 conviction or other past acts and such material. Thus, it was unclear how this condition was reasonably related to any of the considerations set forth in 18 U.S.C. § 3583(d). Moreover, the language “alludes to” sexual activity was particularly problematic. The dictate went beyond a ban on the possession of pornography. If read literally, it could block defendant from possessing much of the Western literary canon. U.S. v. Goodwin, 717 F.3d 511 (7th Cir. 2013).
7th Circuit rejects internet restriction for defendant who failed to register as sex offender. (580) Defendant was convicted of failing to register as a sex offender. The Seventh Circuit rejected a supervised release condition that restricted defendant’s use of the internet. The portion of this condition regarding the use of the internet to send, receive, or view child pornography seemed justifiable, given defendant’s 1994 conviction for an attempted lewd and lascivious act in the presence of child. However, the court did not provide a sufficient explanation for the condition. The sections of the condition that prohibited defendant from receiving or sending any sexually arousing material that was otherwise legal via the internet or from visiting “any website, including chat rooms or bulletin boards containing any sexually arousing material,” was overbroad and vague. U.S. v. Goodwin, 717 F.3d 511 (7th Cir. 2013).
7th Circuit holds that failure to register was not “sex offense.” (580) Defendant pled guilty to failing to comply with the registration requirements of the Sex Offender Registration and Notification Act (SORNA), and was sentenced to 27 months and a life term of supervised release. He argued for the first time on appeal that § 5D1.2(b)(2), which provides for a maximum life term of supervised release for “a sex offense,” was inapplicable to his offense. Note 1 to § 5D1.2 defines a sex offense as a crime “perpetrated against a minor” under chapter 109B of Title 18. The only offense listed in chapter 109B was defendant’s failure to register, 18 U.S.C. § 2250. The Seventh Circuit refused to defer to Note 1, finding that defendant’s failure to register did not constitute a sex offense, and that the life term of supervised release was plain error. There was no specific victim of his failure to register, and the victim of the sex offense for which he was convicted had reached the age of majority by the time defendant failed to register. To the extent that Note 1 purports to include failures to register as sex offenses, this portion of the Note was plainly erroneous as a definition of “sex offense” under § 5D1.2(b)(2). U.S. v. Goodwin, 717 F.3d 511 (7th Cir. 2013).
7th Circuit requires court to explicitly address defendant’s arguments before imposing supervised release. (580) Defendant pled guilty to child pornography offenses, and was sentenced to 97 months and a lifetime term of supervised release. At sentencing, defendant asked for a ten-year term of supervised release, submitting a forensic psychologist’s evaluation which concluded that he had a lower than normal risk of recidivism. He also submitted testimony that two psychologists recently had presented to the Sentencing Commission regarding the recidivism rate for child porn offenders. The judge discussed the forensic psychologist’s evaluation briefly when explaining why he chose a sentence of 97 months, but he did not discuss the psychologists’ views, and did not discuss either the length of supervision or the terms that defendant would be required to follow while under supervision. The prosecutor confessed error, and the Seventh Circuit agreed that the district court erred by failing to address defendant’s arguments before imposing the term of supervised release. On remand the judge should consider not only how defendant’s arguments about recidivism affect the appropriate length of supervised release, but also the interaction between the length and the terms of supervised release. The more onerous the terms, the shorter the period should be. U.S. v. Quinn, 698 F.3d 651 (7th Cir. 2012).
7th Circuit allows court to modify supervised release for additional drug testing. (580) While defendant was serving a term of supervised release, the probation department filed a petition requesting the conditions of defendant’s supervision be modified to add a condition for mental health treatment. At the hearing, the district court modified the supervised release as requested, but also modified defendant’s existing drug testing condition to require additional drug testing. The Seventh Circuit held that the court acted within its discretion in modifying the supervised release condition to add additional drug testing. A district court “may modify, reduce, or enlarge the conditions of supervised release, at any time prior to the expiration or termination of the term of supervised release, . . .” 18 U.S.C. § 3583(e)(2). Although the court did not articulate each of the factors it was considering when it changed the conditions of defendant’s supervised release, the court was within its discretion to modify his supervision to include additional drug testing. U.S. v. Neal, 662 F.3d 936 (7th Cir. 2011).
7th Circuit upholds ban on Internet access during supervised release. (580) Defendant was convicted of possession of child pornography, attempt to entice a minor to engage in sexually prohibited activity, and related charges. The district court ordered as a special condition of supervised release that defendant “shall not have personal access to computer Internet services.” Under the circumstances of this case, the Seventh Circuit held that the district court did not abuse its discretion in barring defendant from gaining access to the Internet during his supervised release. In 1997 and 1998, when the Internet was fairly new, defendant was convicted of using the Internet to solicit a minor for sex. He also used the Internet to set up a pornography trade with a distributor, and possessed an extensive amount of child porn on computer and zip disks. Further, his use of the Internet was not integrally connected to his profession as he was previously employed as a salesman and mechanic. U.S. v. Angle, 598 F.3d 352 (7th Cir. 2010).
7th Circuit allows requiring halfway house as a condition of supervised release. (580) In three separate cases, the district court interpreted U.S. v. Head, 552 F.3d 640 (7th Cir. 2009), as precluding it from imposing, as a condition of supervised release, placement in a halfway house. The Seventh Circuit held that the district court could impose the halfway-house condition under the catch-all provision of the supervised release statute. Although halfway-house placement is not expressly listed as a discretionary condition of release by §§ 3583(d) and 3563(b), the omission was almost certainly accidental. Placement in a halfway house should be viewed as a legitimate additional condition not affirmatively authorized by the statute, rather than as one expressly forbidden. The district court was therefore free to consider halfway-house placement as a possible condition of supervised release, provided that it complied with the restrictions on the use of its authority under the catch-all provision of the statute. U.S. v. Anderson, 583 F.3d 504 (7th Cir. 2009).
7th Circuit says court may order repayment of buy money as condition of release. (580) Defendant sold crack cocaine to a witness cooperating with the federal government, and pled guilty to distributing crack. The district court ordered defendant, as a condition of his supervised release, to repay the $1,400 used by the government to buy the drugs. Defendant argued that the district court erred by imposing a repayment obligation without considering defendant’s ability to pay. A district court has the power to impose as a condition of supervised release “any other condition it considers appropriate.” 18 U.S.C. § 3583(D). The Seventh Circuit has interpreted this power to authorize a condition requiring the repayment of buy money, U.S. v. Daddato, 996 F.3d 9903 (7th Cir. 1993). Although defendant asserted that the court should have considered his ability to repay when imposing the condition, the Seventh Circuit found that the court appropriately deferred any such consideration until defendant’s release from prison. Defendant could raise this issue after he served his ten-year prison term. U.S. v. Gibbs, 578 F.3d 694 (7th Cir. 2009).
7th Circuit says court erred in failing to calculate Guidelines recommended term of supervised release. (580) Defendant pled guilty to an offense carrying a statutory minimum supervised release term of five years and a statutory maximum of life. The appropriate Guideline, § 2D1.2(a)(1), recommended a range of three to five years. Thus, the advisory Guideline range was five years. In imposing a ten-year term of supervised release, the district court stated that the supervised release term was “five years to life. I am imposing a period of 10 years supervised release.” The court identified the statutory range, but it never calculated the advisory Guideline range. The Seventh Circuit held that this procedural error entitled defendant to a redetermination of his supervised release term. U.S. v. Gibbs, 578 F.3d 694 (7th Cir. 2009).
7th Circuit holds that challenge to potential penile plethysmograph testing was not ripe for review. (580) Defendant pled guilty to possessing child pornography. The court sentenced defendant to a 10 years’ imprisonment followed by a life term of supervised release. As a condition of supervised release, the court ordered a psychosexual evaluation, which could then lead to mandatory participation in a sex offender treatment program. As part of such a program, defendant could be required to undergo polygraph and penile plethysmograph (PPG) testing. The Seventh Circuit dismissed defendant’s challenge to the PPG testing as unripe. The supervised release condition only potentially required the defendant to have PPG testing. It was unclear whether PPG testing would still be used for evaluation or treatment by the time defendant was released from prison. The panel refused to require the district court to state why PPG was preferable to less intrusive methods. Defendant could later petition the court to modify the condition, and he should be permitted to have the court consider his request to modify the condition before he was required to undergo the testing. U.S. v. Rhodes, 552 F.3d 624 (7th Cir. 2009).
7th Circuit says former statute barred community confinement as condition of supervised release. (580) The district court specified that the first six months of defendant’s term of supervised release term be served in a “residential reentry center.” At the time of defendant’s sentence, 18 U.S.C. §3583(d) defined the permissible discretionary conditions of supervised release by incorporating by reference “any condition set forth as a discretionary condition of probation in 18 U.S.C. §3563(b)(1) through (b)(10) and (b)(12) through (b)(20) and any other condition it considers to be appropriate.” The residential reentry center to which defendant was sentenced fell within the scope of (b)(11), which authorizes placing defendant in a community corrections facility. The Seventh Circuit held that under the plain meaning of §3583(d), the district court did not have the authority to order that defendant serve time in a residential reentry center after his release from prison. The panel acknowledged that the First, Fifth, Sixth, Eighth and Ninth Circuits have all adopted the contrary position, but disagreed with those opinions. Congress has since amended §3583(d) to include §3563(b)(11). U.S. v. Head, 552 F.3d 640 (7th Cir. 2009).
7th Circuit holds that challenge to potential penile plethysmograph testing was not ripe for review. (580) Defendant pled guilty to possessing child pornography. The court sentenced defendant to a 10 years’ imprisonment followed by a life term of supervised release. As a condition of supervised release, the court ordered a psychosexual evaluation, which could then lead to mandatory participation in a sex offender treatment program. As part of such a program, defendant could be required to undergo polygraph and penile plethysmograph (PPG) testing. The Seventh Circuit dismissed defendant’s challenge to the PPG testing as unripe. The supervised release condition only potentially required the defendant to have PPG testing. It was unclear whether PPG testing would still be used for evaluation or treatment by the time defendant was released from prison. The panel refused to require the district court to state why PPG was preferable to less intrusive methods. Defendant could later petition the court to modify the condition, and he should be permitted to have the court consider his request to modify the condition before he was required to undergo the testing. U.S. v. Rhodes, 552 F.3d 624 (7th Cir. 2009).
7th Circuit upholds 60 drug tests a year for defendant with history of alcohol, but not drug, abuse. (580) The district court ordered, as a condition of supervised release, that defendant undergo frequent drug testing. Defendant appealed the order on the grounds that he had no history of drug abuse. Drug testing is a mandatory condition of supervised release, although district courts have discretion to exempt a defendant from complying with this condition when the court is convinced a defendant is unlikely to abuse a controlled substance. 18 U.S.C. §3583(d). The Seventh Circuit held that the district court did not abuse its discretion in declining to suspend or ameliorate the statutorily-mandated testing or in ordering defendant to submit to 60 tests per year. Although defendant had no history of drug abuse, he did have a history of alcohol abuse that resulted in three separate drunk driving convictions. He also had a gambling problem. Both of these factors were consistent with an addictive personality. U.S. v. Paul, 542 F.3d 596 (7th Cir. 2008).
7th Circuit rejects restrictions on gambling and internet use on supervised release. (580) Defendant was convicted of mail fraud, sentenced to 105 months’ imprisonment, and ordered to pay $1.2 million in restitution. He challenged for the first time on appeal various conditions of supervised release, including that he refrain from all forms of gambling and join Gamblers Anonymous, that he maintain only one personal checking account, that he not possess or use a computer with Internet access without prior approval of a probation officer, and he “repatriate all monies” in his Haitian bank account. The Seventh Circuit found two of these conditions overbroad and unrelated to the circumstances of the case. First, the ban on gambling and the requirement to join Gamblers Anonymous appeared arbitrary, because the record contained no evidence that defendant had a gambling problem. Second, a total ban on the use of computers with access to the Internet is in most cases an overbroad condition of supervised release. However, the imposition of these two conditions did not amount to plain error requiring appellate court intervention. The other challenged conditions were more closely related to the facts of defendant’s case and consistent with § 3583(d)(1)-(3). U.S. v. Silvious, 512 F.3d 364 (7th Cir. 2008).
7th Circuit upholds supervised release condition requiring participation in substance abuse program despite limited evidence of drug use. (580) The district court ordered, as a condition of supervised release, that defendant participate in a substance abuse program “as directed and approved by the Probation Office,” and completely abstain from alcohol during treatment. Defendant argued for the first time on appeal that the condition was not justified because he did not use drugs or alcohol. However, this was defendant’s third drug-trafficking conviction, and on three separate occasions he had been charged with possession of a controlled substance, suggesting possession of “personal use” amounts of drugs. Given the nature of defendant’s present offense and his criminal history, the Seventh Circuit found the condition did not meet the plain error test. The court ordered participation in treatment “as directed and approved by the Probation Office,” so it was possible that after defendant completed his lengthy prison sentence, the probation office would find drug or alcohol treatment unnecessary. However, the panel did find “cause for concern” in the district court’s failure to explain its reasons for the condition. It reminded district courts that drug or alcohol treatment conditions of supervised release “should not be imposed simply by rote in all drug cases. Instead, the record should reflect an exercise of discretion based on the evidence and the applicable legal standards.” U.S. v. Jordan, 485 F.3d 982 (7th Cir. 2007).
7th Circuit upholds supervised release condition banning all alcohol use. (580) The district court ordered special conditions of supervised release relating to alcohol use, education, employment and community service. The Seventh Circuit upheld the condition banning all alcohol use. Although defendant’s offense was unrelated to alcohol use and he had not been diagnosed with alcoholism, he had a history of alcohol use and abuse, including an incident in which he was issued a citation for operating a motor vehicle in which there were open containers of alcohol. Moreover, defendant’s history and criminal record showed a “progressive unwillingness to conform his conduct to the law.” This condition would help “ensure [defendant’s] emerging life pattern changed.” The panel also upheld conditions that defendant attempt to complete his high school education, that he maintain employment and he perform community service in the event he failed to maintain employment. Education and employment are specifically listed as discretionary conditions that the court may impose. See 18 U.S.C. §§ 3563(b) (4), 3583(b) and U.S.S.G. § 5D1.3(c)(5). U.S. v. McKissic, 428 F.3d 719 (7th Cir. 2005).
7th Circuit remands for additional findings to support surrender of commercial drivers license. (580) Defendant, a licensed commercial truck driver, picked up a load of toys. However, instead of delivering the shipment, defendant pulled off the road at various points and sold toys off the back of the truck, using the money to support his drug habit. As a condition of supervised release, the district court ordered defendant to surrender his commercial driver’s license, and he was prohibited from “ever” obtaining another, or “from ever being employed as a truck driver.” The Seventh Circuit remanded for additional findings to support the restriction. Section 5F1.5 permits a court to impose an occupational restriction under certain limited conditions. The connection between defendant’s employment as a commercial truck and his crime of theft of interstate theft was obvious. However, the court made no findings as to the remaining factors under § 5F1.5. The absence of a finding that the restriction was necessary to prevent defendant from engaging the same conduct was troubling in light of the court’s reliance on factors unrelated to the offense of conviction. Moreover, the record was unclear regarding the length of time the restriction was in effect. U.S. v. Smith, 332 F.3d 455 (7th Cir. 2003).
7th Circuit rejects total ban in Internet access as overly broad. (580) Defendant was an information system technologist who downloaded onto his home computer more than 100,000 pornographic images, about 10 to 20 percent of which involved underage children. The district court ordered as a condition of supervised release that defendant “not possess or use a computer that is equipped with a modem, that allows access to any part of the Internet, e-mail service, or other “on-line” services. The Seventh Circuit found that the extent that the condition was intended to be a total ban on Internet use, it swept more broadly and imposed a greater deprivation on defendant’s liberty than was necessary. Such a strict ban “renders modern life … exceptionally difficult.” Various forms of “monitored Internet usage might provide a middle ground” between the need to ensure defendant did not use the Internet for illegal purposes and the need to allow him to function in modern life. Defendant had a 30-year history of working in computerized telecommunications, and defendant presented undisputed evidence that he had not used any of the computer systems in his place of work in committing his crimes. “Because [defendant] was most likely to find gainful employment in the computer field upon his release, the conditions as currently written could affect his future productivity and jeopardize his rehabilitation in violation of § 3583(d). U.S. v. Holm, 326 F.3d 872 (7th Cir. 2003).
7th Circuit holds that defendant was entitled to notice of unusual condition of supervised release. (580) Defendant pled guilty to fraud. As a condition of supervised release, the district court prohibited defendant from “access to any Internet Services without prior approval of the probation officer.” The rationale for this condition was that a search of defendant’s office computer turned up a few images of child pornography. Defendant argued that he was entitled to some notice that this condition was an option, see Burns v. U.S., 501 U.S. 129 (1991), and also argued that the condition was too broad. The Seventh Circuit agreed that a defendant is entitled to notice of unusual conditions of supervised release. Although a special condition of supervised release is not an upward departure, making supervised release significantly more onerous than the norm adds to the severity of punishment and thus may be seen as a back-door form of departure. Burns does not hold or say that notice is required only if the judge imposes a term of imprisonment that exceeds the guideline range. Burns concluded that Rule 32(c) affords the defendant notice about (an thus an opportunity to address) all of the important options to be considered at sentencing. An unusual condition of supervised release is such an important option. U.S. v. Scott, 316 F.3d 733 (7th Cir. 2003).
7th Circuit upholds modification of release condition barring defendant from contact with former roommate. (580) As a condition of supervised release, the judge imposed a standard provision that defendant not associate with any person conviction of a felony unless granted permission to do so by the probation officer. At a later hearing, the district court modified the conditions of release to prohibit defendant from having any contact with his former roommate, Henry. Henry had been convicted in Indiana of the misdemeanor charge of possessing child pornography, based on his possession of a videotape portraying defendant engaged in illegal sexual acts with a minor. The judge found that the defendant’s association with Henry would jeopardize his ability to comply with the other conditions of his supervised release and would create an atmosphere ripe with potential for more continued activity. The Seventh Circuit affirmed the condition of release. U.S. v. Sines, 303 F.3d 793 (7th Cir. 2002).
7th Circuit holds that defendant waived the right to challenge sex offender treatment program. (580) At sentencing, the judge stated, “The defendant shall participate in an approved sex offender treatment program, including periodic progress as directed by the probation office.” (emphasis added). The written judgment stated, “The defendant shall participate in a program of treatment for sex offenders, including periodic polygraph examinations, as directed by the probation officer.” (emphasis added). The Seventh Circuit rejected defendant’s challenge to the condition, since he waived, as part of his plea agreement, the right to appeal his conviction or the sentence imposed by the judge. His attempt to dress his collateral attack in the guise of a modification of supervised release must fail. Allowing him to challenge the sentence in this manner would gut the effectiveness of most waivers of appeal and waivers of collateral attack. The panel also rejected defendant’s claim that the requirement to take periodic polygraph examinations as part of a sex offender treatment program was not part of his original sentence. It was likely that the discrepancy between the court’s oral pronouncement requiring “periodic progress” and the written judgment requiring “periodic polygraphs” was merely a transcription error. However, even if not, periodic polygraphs are merely a means of evaluating progress and thus, the written judgment was simply a more specific rendering of the pronouncement at the hearing. U.S. v. Sines, 303 F.3d 793 (7th Cir. 2002).
7th Circuit rejects consecutive terms of supervised release. (580) Defendant was convicted of three counts relating to his improper sexual contact with his minor daughter. The government and the defendant both stated on appeal that the district court committed plain error in imposing consecutive terms of supervised release as a component of defendant’s sentence. The Seventh Circuit agreed. A term of supervised release begins on the day an individual is released from incarceration. 18 U.S.C. § 3624(c). The term “runs concurrently with any Federal, State, or local term of probation or supervised release or parole for another offense to which the person is subject during the supervised release.” Section 3624(e) and the guidelines do not permit sentencing courts to impose consecutive terms of supervised release. The panel rejected the government’s argument that on remand, the district court should be allowed to “repackage” defendant’s sentence and impose a lengthier period of incarceration. U.S. v. Danser, 270 F.3d 451 (7th Cir. 2001).
7th Circuit upholds condition of release allowing warrantless searches but requires seizure provision to be more precise. (580) Defendant used others’ names and social security numbers to fraudulently obtain credit and purchase merchandise. As a special condition of supervised release, the district court ordered that defendant’s “person, residence, and vehicle shall be subject to search and seizure upon demand of any law enforcement officer.” The Seventh Circuit held that the search portion of the condition was reasonably related to the goals of rehabilitation and protection of the public. Defendant’s extensive history of fraud demonstrated the need for “exceptional vigilance” on the part of law enforcement officials to deter him from future crimes. Moreover, allowing the searches by any law enforcement officer, rather than just defendant’s probation officer, was justified. In order for the possibility of a search to deter defendant from future fraud, the possibility of a search must be real. However, the seizure authority contained in the special condition was too broad. The plain language wording of the condition allowed a law enforcement officer to seize defendant, his home or his car on demand. It was unclear from the record why the district court believed such broad authority to seize was required to ensure the ends of rehabilitation and protection of the public were met. U.S. v. Monteiro, 270 F.3d 465 (7th Cir. 2001).
7th Circuit holds that defendant was entitled to notice of sex offender registration requirement. (580) Defendant claimed that the court should have provided notice of its intent to impose a sex offender registration requirement as a condition of supervised release because the condition was analogous to an upward departure for which advance notice is required under Rule 32 and Burns v. United States, 501 U.S. 129 (1991). The Seventh Circuit, following the Fifth Circuit’s decision in U.S. v. Coenen, 135 F.3d 938 (5th Cir. 1998), agreed. The sex offender registration requirement is analogous to an upward departure, since it is not expressly contemplated by the guidelines. Thus, reasonable notice must be given to criminal defendants, either by the PSR, a prehearing submission, or the district court itself, when the court is considering this special condition of supervised release. U.S. v. Angle, 234 F.3d 326 (7th Cir. 2000) (en banc).
7th Circuit interprets supervised release as beginning immediately upon release to avoid illegal sentence. (580) The district court sentenced defendant to one day’s imprisonment and six months’ home confinement. The court ordered that upon completion of the term of home confinement, defendant was to begin her term of five years’ supervised release. During her period of home confinement, the Missouri district judge transferred jurisdiction over defendant’s case to the Illinois district where defendant worked and lived. See 18 U.S.C. § 3605 (defendant on supervised release may be transferred to another district). The transfer order stated that the period of supervised release ran from December 10, 1999, the date of her sentencing, to December 9, 2004. In May, the probation officer filed a petition seeking to revoke the supervised release. The Illinois district court granted the petition. Defendant argued that the Missouri judge had no jurisdiction to transfer her case to another district since in February, when she was transferred, she was still under home confinement and supervised release had not yet begun. The Seventh Circuit agreed that the most natural interpretation of what the sentencing judge intended was that the period of supervised release was to begin upon the defendant’s release from home confinement. However, if this was the case, the sentence was illegal, because there is no authority in federal law for imposing a free-standing sentence of home confinement. In addition, defendant’s interpretation would have prevented transferring supervision of her case to the district in which she lived during the very period in which she was confined to her home. Thus, it was better to interpret the five-year supervised release term to run from the date of the sentencing, and require as a condition of supervised release that she spend the first six months in home confinement. U.S. v. Bass, 233 F.3d 536 (7th Cir. 2000).
7th Circuit remands where supervised release term exceeded statutory maximum. (580) The parties agreed that the district court erred in sentencing defendant to a three-year period of supervised release. Misprision of felony is punishable by a term of imprisonment not to exceed three years. See 18 U.S.C. § 4. A person found guilty of an offense punishable by a term of imprisonment of not more than three years is guilty of a Class E felony. See 18 U.S.C. § 3581(b) (5). The term of supervised release for a Class E felony is not more than one year. See 18 U.S.C. § 3583(b)(3). Accordingly, the Seventh Circuit vacated the sentence and remanded with directions to impose a sentence of supervised release that did not exceed the statutory maximum of one year. U.S. v. Shabazz, 230 F.3d 899 (7th Cir. 2000).
7th Circuit upholds total ban on alcohol use while on supervised release. (580) Defendant, a member of New Order, a white supremacy group, sold explosives to an undercover agent posing as a fellow member of the group. The district court ordered, as a condition of supervised release, that defendant refrain from using alcohol and “other legally obtained intoxicants.” A standard condition of supervised release requires only that a defendant refrain from excessive use of alcohol. See 18 U.S.C. § 3563(b)(7) and USSG § 5D1.3(c)(7). Some courts have struck down similar blanket prohibitions on alcohol use where, as here, the offense of conviction was unrelated to any substance abuse. See, e.g. U.S. v. Prendergast, 979 F.2d 1289 (8th Cir. 1992). The Seventh Circuit upheld the prohibition here since the district court had specific evidence of defendant’s prior alcohol abuse, including a prior diagnosis of alcoholism. This brought defendant’s case closer to those in which courts have upheld total restrictions on alcohol use as a condition of supervised release. See e.g. U.S. v. Wesley, 81 F.3d 482 (4th Cir. 1996). The restriction was reasonably related to the need to protect the public from further crimes and provide defendant with rehabilitative treatment. U.S. v. Schave, 186 F.3d 839 (7th Cir. 1999).
7th Circuit upholds restriction against associating with white supremacist groups. (580) Defendant, a member of New Order, a white supremacy group, sold explosives to an undercover agent posing as a fellow member of the group. The district court prohibited defendant, during his term of supervised release, from associating with any organizations, or its members, that espouse violence or the supremacy of the white race. Although the restriction was “inartfully drafted,” and could be interpreted as overbroad and vague, the Third Circuit upheld the condition, finding these potential constitutional difficulties could be “easily avoided through appropriate limiting construction.” The restriction must be interpreted in light of defendant’s crime: providing weapons and explosives to a fellow member of the New Order to facilitate attacks against a number of civil rights organizations. The district court’s associational restriction reached only those activities reasonably related to the danger of defendant’s reassociating with white supremacist groups or organizations that pursue their aims through violent means. So understood, the condition provided sufficient notice of the conduct prohibited and hence was not unconstitutionally vague. U.S. v. Schave, 186 F.3d 839 (7th Cir. 1999).
7th Circuit says community confinement is not a form of imprisonment. (580) Defendant argued that the judge erred when he sentenced defendant to both the maximum term of 24 months’ imprisonment and a subsequent 120 days in community confinement as a condition of supervised release. He contended that because community confinement is a form of imprisonment, the two components of the sentence were redundant. The Seventh Circuit held that defendant’s community confinement was not a form of imprisonment but an order of supervision relating to supervised release. Community confinement and home detention, rather than being forms of imprisonment, are substitutes for imprisonment. Thus, the sentence imposed did not exceed the guidelines. U.S. v. Elkins, 176 F.3d 1016 (7th Cir. 1999).
7th Circuit upholds court’s failure to suspend drug testing despite no history of drug use. (580) Defendant argued for the first time on appeal that the district court erred by choosing not to suspend the drug testing provisions required under 18 U.S.C. § 3583(d) when a defendant is placed on supervised release. If a court chooses, it may “ameliorate or suspend” the testing conditions if the defendant’s presentence report or “other reliable sentencing information indicates a low risk of future abuse by the defendant.” 18 U.S.C. § 3563(a)(5). Defendant argued that the court should have exercised this power because she had never used narcotics in the past, and her screening test turned up negative for all illicit drugs. The Seventh Circuit held that the court’s failure to suspend the drug testing provision was not plain error. The language of § 3563(a)(5) is not obligatory, and vests the district court with wide discretion. While it might have been appropriate for the district court to suspend the condition, it was not plain error for the court to impose the drug testing. The court’s decision to order defendant to submit to up to 104 random drug tests per year as ordered by the Probation Office was not an abuse of discretion. The district court has broad discretion to impose special conditions of supervised release. U.S. v. Guy, 174 F.3d 859 (7th Cir. 1999).
7th Circuit requires participation in mental health program as condition of supervised release. (580) Defendant, an abortion protestor, was convicted of violating the Freedom of Access to Clinic Entrances Act. The Seventh Circuit held that the district court did not abuse its discretion in requiring defendant to participate in a mental health program as a condition of his supervised release. Information, primarily from defendant’s mother, indicated he needed such treatment. Defendant’s behavior was so erratic that she attempted to have him evaluated, but he refused. Both sides of his family had a history of mental illness. A former employer also noted that defendant displayed mood swings and depression. The judge also had ample opportunity to observe defendant. The judge was not confusing behavior arising from a mental condition and behavior arising from a rational decision to protest abortion–the court did not require a co-defendant to participate in a mental health program. U.S. v. Wilson, 154 F.3d 658 (7th Cir. 1998).
7th Circuit says court must determine number of drug tests to which defendants must submit. (580) Defendants were convicted of fraud charges. The judge ordered drug tests as a condition of supervised release, ruling that the random drug tests were to be at the discretion of the Probation Department. The Seventh Circuit reversed, ruling that the district court improperly left to the probation department the discretion to determine the number of drug tests to which defendants would be subject during their period of supervised release. Under 18 U.S.C. § 3853(d), the district court must determine the number of drugs tests to which the defendants must submit. U.S. v. Bonanno, 146 F.3d 502 (7th Cir. 1998).
7th Circuit upholds gambling restriction as condition of supervised release. (580) Defendant, the owner and operator of two small grocery stores, was convicted of food stamp fraud. The district court ordered him not to engage in any gambling activities or frequent a gambling establishment for the 3-year period of his supervised release. The Seventh Circuit upheld the gambling restriction as a reasonable condition of supervised release. Defendant admitted being a compulsive gambler, and the ledgers confiscated from his stores confirmed this. The condition was not an abuse of discretion. U.S. v. Brown, 136 F.3d 1176 (7th Cir. 1998), superseded by statute on other grounds by U.S. v. Rodriguez-Cardenas, 362 F.3d 956 (7th Cir. 2004).
7th Circuit upholds drug testing as condition of supervised release. (580) As a condition of supervised release, the district court ordered defendant to submit to drug testing and treatment at the discretion of a probation officer. The Seventh Circuit held that the drug testing was a proper condition of supervised release given defendant’s history of drug problems. Section 5B1.4(23) permit drug testing and treatment as a condition of supervised release if the court has reason to believe that the defendant is an abuser of narcotics, other controlled substances or alcohol. U.S. v. Simmons, 130 F.3d 1223 (7th Cir. 1997).
7th Circuit approves order to repay drug buy money as condition of supervised release. (580) The Seventh Circuit, following U.S. v. Daddato, 996 F.2d 903 (7th Cir. 1993), affirmed the district court’s order that defendant repay drug buy money as a condition of supervised release. Although a court cannot order such money be repaid as “restitution” under the Victim and Witness Protection Act, a court may order repayment as a condition of supervised release. U.S. v. Brooks, 114 F.3d 106 (7th Cir. 1997).
7th Circuit rules that deportation does not extinguish supervised release. (580) Defendant was originally convicted of drug charges, and sentenced to prison followed by five years of supervised release. When he was released from prison, the INS deported him. Two years later, defendant illegally reentered the U.S. The district court assessed him two criminal history points under § 4A1.1(d) for committing the illegal reentry offense while on supervised release. Defendant argued that he was not on supervised release when he reentered the U.S. because the supervised release terminated when he was deported. The Seventh Circuit ruled that deportation does not extinguish supervised release. A plain reading of 18 U.S.C. § 3583(d) and 8 U.S.C. § 1252(h) supports this conclusion. Moreover, no statute, court order, or sentencing guideline provides for the termination of the supervised release period. U.S. v. Akinyemi, 108 F.3d 777 (7th Cir. 1997).
7th Circuit rejects 10-year supervised release term as upward departure. (580) Defendant was convicted of drug offenses which, under § 5D1.2, required a maximum five-year term of supervised release. The Seventh Circuit vacated a 10-year term of supervised release, finding it was an upward departure that the district court failed to justify. The district court did not give notice or an adequate explanation on the record for the departure. U.S. v. Sasson, 62 F.3d 874 (7th Cir. 1995).
7th Circuit says failure to impose split sentence not moot where supervised release would have begun during alternative confinement. (580) Defendant received an eight month sentence of imprisonment. He challenged the district court’s failure to impose a split sentence of four months imprisonment and four months community confinement or home detention. The government argued the appeal was moot since at the time of the appeal, defendant had finished serving his eight month prison term and begun serving his three years of supervised release. The 7th Circuit held that the appeal was not moot. The community confinement or home detention component of a split sentence is considered a condition of supervised release. Thus, if the district court had imposed a split sentence in conjunction with the same three year term of supervised release, defendant’s supervised release would have began during his four months of alternative confinement. Thus, because the appeal has the potential of affecting defendant’s term of supervised release, it was not moot. U.S. v. Swigert, 18 F.3d 443 (7th Cir. 1994).
7th Circuit requires notification to employers of criminal conduct and supervised release status. (580) Defendant pled guilty to income tax evasion. The 7th Circuit affirmed a condition of supervised release that required defendant to notify all employers of his past criminal conduct and current status on supervised release. The presentence report revealed that defendant had embezzled money on three different occasions from three different employers. Sections 3553(a), 3563(b)(6) and 3583(d) authorized the court to impose this condition and nothing in the Fifth or Eighth Amendments prohibited it. U.S. v. Schechter, 13 F.3d 1117 (7th Cir. 1994).
7th Circuit says lifelong term of supervised release was departure requiring notice to defendant. (580) Defendant was convicted of drug crimes and was sentenced to 112 months’ imprisonment followed by a life term of supervised release. The 7th Circuit held that a lifelong term of supervised release represents “an extraordinary” upward departure from the guidelines and required advance notice to the defendant under Burns v. U.S., 111 S.Ct. 2182 (1991). On remand the judge must give notice to defendant of his intent to depart and the basis of the proposed departure. The court also noted that a life term of supervised release is “extraordinary and not often warranted.” U.S. v. Amaechi, 991 F.2d 374 (7th Cir. 1993).
7th Circuit holds that error in warning about supervised release did not entitle defendant to withdraw guilty plea. (580) The district court advised defendant that in addition to his term of imprisonment, he faced a term of supervised release of four years to life. In fact, the term was eight years to life, and defendant actually received an eight year term of supervised release. The 7th Circuit held that the district court’s error in advising defendant of his mandatory minimum term of supervised release was harmless, and did not entitle defendant to withdraw his guilty plea. Defendant’s plea agreement did not promise that the term of supervised release would be at the low end of the range. The term he received fell within the range of the warning defendant received. U.S. v. Saenz, 969 F.2d 294 (7th Cir. 1992).
7th Circuit upholds requiring defendant to report wife’s financial obligations as condition of supervised release. (580) One of the conditions of defendant’s supervised release required him to inform the probation office of any financial transaction by his wife in excess of $250. He was also ordered to pay in excess of $29,000 as restitution. The 7th Circuit found no impropriety in requiring defendant to report his wife’s financial transactions. Defendant’s family assets were held solely in his wife’s name, and defendant conducted many of his transactions through his wife. Significantly, the wife was not required to report her financial transactions, and thus, the condition did not affect the exercise of any of her lawful rights. The condition served a monitoring purpose in light of defendant’s history of masking his income and ownership of assets, and was related to evaluating his ability to meet his restitution payment schedule. U.S. v. Kosth, 943 F.2d 798 (7th Cir. 1991).
7th Circuit upholds prohibition against associating with white supremacists as condition of supervised release. (580) Defendant pled guilty to possessing an unregistered firearm and was sentenced to 14 months imprisonment and a term of supervised release. One of the conditions of the supervised release was that defendant not participate in or associate with members of “skinhead” or other neo-Nazi groups. The 7th Circuit upheld this as a proper condition of supervised release. The condition did not lack certainty, and was sufficiently clear to put defendant on notice regarding the parameters of the court’s restriction on his activities. The condition also complied with the specificity requirements of 18 U.S.C. § 3563(b)(7). Moreover, the condition did not involve a greater deprivation of liberty than was necessary, in violation of 18 U.S.C. 3583(d)(2). The district court was correct in concluding that defendant needed to be separated from other members of white supremacist groups in order to stay out of trouble. U.S. v. Showalter, 933 F.2d 573 (7th Cir. 1991).
7th Circuit holds supervised release is authorized by 18 U.S.C. § 3583. (580) Defendant contended that it was improper to sentence him to a term of supervised release because the drug conspiracy statute then in effect, 21 U.S.C. § 846, only authorized a fine or imprisonment. Following the 2nd, 5th and 11th Circuits, the 7th Circuit held that the term of supervised release was authorized by 18 U.S.C § 3583 for violations of § 846 committed after November 1, 1987. U.S. v. Osborne, 931 F.2d 1139 (7th Cir. 1991).
8th Circuit upholds barring defendant from sexually stimulating material while on supervised release. (580) Defendant pled guilty to possessing, receiving and distributing child pornography. He objected to a condition of supervised release that barred him from possessing, viewing, or using “any material that is sexually stimulating or sexually oriented deemed to be inappropriate by the U.S. Probation Officer in consultation with the treatment provider.” The Eighth Circuit upheld the condition, rejecting defendant’s argument that it was overbroad and void for vagueness. Defendant’s argument was foreclosed by U.S. v. Hobbs, 710 F.3d 850 (8th Cir. 2013), which rejected a similar challenge to an identical special condition. The restriction held overbroad in previous cases “was an absolute ban on possessing material ‘that contains nudity,’ which would include biology textbooks and famous works of art.” The ban here was properly limited. U.S. v. Fonder, 719 F.3d 960 (8th Cir. 2013).
8th Circuit approves restitution to IRS as condition of supervised release. (580) Defendant, a manager at an car assembly plant, was convicted of four counts of willful income tax evasion for failing to report and then concealing kickbacks he received from vendors. As a special condition of supervised release, he was ordered to pay restitution to the IRS. Defendant contended the restitution order was improper because the Victim and Witness Protection Act and the Mandatory Victims Restitution Act do not apply to Title 26 offenses. See 18 U.S.C. §§ 3663(a) (1)(A), 3663A(c)(1). The Eighth Circuit upheld the restitution order. Congress has explicitly granted district courts discretionary authority to “make restitution to a victim of the offense” a condition of supervised release, regardless of whether the defendant committed an offense enumerated in §§ 3663(a) (1)(A) or 3663A(c)(1). The court made clear that restitution was being ordered as a condition of defendant’s supervised release, not pursuant to the VWPA or the MVPA. The court did not abuse its discretion by including interest in a restitution order intended to compensate the IRS as a victim for the full amount of its losses from defendant’s evasion of income taxes owed. U.S. v. Perry, 714 F.3d 570 (8th Cir. 2013).
8th Circuit upholds condition of release restricting defendant’s contact with children, including his own. (580) Defendant pled guilty to possession of child pornography. As a special condition of release, the district court ordered that defendant obtain advance approval from his probation officer before he could reside with or contact children under age 18, including his own. Defendant argued that the special condition exacted a greater deprivation of liberty than necessary and interfered with his fundamental liberty interest in the relationships with his children. The Eighth Circuit held that the condition was not an abuse of discretion. Defendant had an extensive history of criminal convictions resulting from drinking to excess, and being a danger to the public – one assault, two disturbing the peace, and two driving while intoxicated convictions – plus his failure to abstain from alcohol while on pretrial release. Defendant’s history of alcohol abuse, together with his longstanding child pornography addiction, led the probation officer to recommend special conditions requiring drug and alcohol treatment and testing and participation in a sex-offense-specific program, as well as the restriction on contact with children. U.S. v. Hobbs, 710 F.3d 850 (8th Cir. 2013).
8th Circuit upholds condition barring defendant from viewing “sexually stimulating or sexually oriented” material. (580) Defendant pled guilty to possession of child pornography. As a special condition of release, the district court barred defendant from possessing, viewing, or using any “sexually stimulating or sexually oriented” material “deemed inappropriate by the U.S. Probation Officer in consultation with the treatment provider.” The Eighth Circuit rejected defendant’s argument that the condition was unconstitutionally overbroad or vague. The restriction was obviously relevant to defendant’s admitted child pornography addiction. In addition, the ban was not absolute, but simply required condition prior approval of the probation officer in consultation with the treatment provider. U.S. v. Hobbs, 710 F.3d 850 (8th Cir. 2013).
8th Circuit upholds no-contact order as condition of supervised release. (580) Defendant pled guilty to firearms and domestic abuse charges. He later violated the terms of his supervised release, including, on at least six occasions, violating an Iowa state court’s order that he have no contact with his domestic assault victim. The district court revoked his supervised release and ordered him not to have contact with the victim and her family members, either during his term of imprisonment or during his subsequent term of supervision. The Eighth Circuit upheld the no-contact order as a condition of supervised release. The district court imposed the no-contact order because violation of the Iowa no-contact order was one of the grounds for revoking defendant’s supervised release, and it showed lack of respect for the law. These justifications were “reasonably related” to his offense, history and characteristics, the need to deter him from future criminal conduct, and the need to protect his victim. Any error in ordering the no-contact term for his term of imprisonment was harmless. Defendant had completed his term of imprisonment, and there was no evidence that the Bureau of Prisons ever enforced the order. U.S. v. Wilson, 709 F.3d 1238 (8th Cir. 2013).
8th Circuit upholds various conditions of supervised release in child porn case. (580) Defendant was convicted of knowingly receiving and possessing child pornography. The Eighth Circuit upheld conditions of supervised release requiring defendant to attend sex offender treatment and submit to polygraph exams, barring him from having unsupervised contact with minors, prohibiting him from possessing a computer or accessing the Internet without prior approval, and prohibiting him from viewing and possessing pornography or sexually oriented material. Previous cases have upheld conditions requiring sex-offender treatment and polygraph testing where the defendant was addicted to child pornography, possessed pictures of prepubescent minors, and exhibited a “lack of candor” regarding his level of involvement with child pornography. While defendant had no history of abusing minors, the absence of such a history was not necessarily determinative when deciding whether the court erred in imposing contact conditions. The computer and internet restrictions were reasonably related to the nature and circumstances of defendant’s offense—he downloaded 150-300 images of child pornography from the internet and stored them on his computer. Restrictions on pornographic materials are “not unusual special conditions” in child pornography cases. U.S. v. Muhlenbruch, 682 F.3d 1096 (8th Cir. 2012).
8th Circuit upholds supervised release restrictions in child porn case. (580) Defendant was convicted of receiving and possessing child pornography downloaded to his computer over a four-day period. The Eighth Circuit upheld conditions of supervised release barring defendant from possessing all sexually oriented material, including adult pornography, restricting computer use, requiring abstention from alcohol use during sexual offender treatment, and requiring disclosure of business and personal financial information. Given the relationship between the child porn offense, defendant’s likely abuse of young children, and his affair with a married woman, the district court did not abuse its discretion by banning possession of all sexually oriented materials. Although defendant did not use computers to produce or distribute child pornography, computer use and internet access were central to his child pornography offense as well as his sexual relationship with the married woman. Defendant’s array of sexual misconduct, and persistent efforts to deny and cover up that misconduct, clearly warranted mandatory sex offender treatment. Alcohol consumption could adversely affect the course of sex offender treatment. Although the court had some doubts about the disclosure of financial information, defendant failed to show specific hardship or adverse effect. U.S. v. Deatherage, 682 F.2d 755 (8th Cir. 2012).
8th Circuit upholds special condition of supervised release barring possession of child porn. (580) Defendant was convicted of being a felon in possession of a firearm. As part of his supervised release, the district court prohibited defendant from possessed material that contained nudity or depicted sexually arousing material. This condition was struck down as overbroad, and on remand, the district court revised the special condition to bar defendant from possessing any child pornography or any “photographic depictions of child nudity or of children engaged in sexual activity.” The court found that defendant was a sexual predator who was predisposed to exploiting children sexually, and that such material would be contrary to his rehabilitation. The court referenced a prior offense where defendant was convicted of sexually assaulting a child. The Eighth Circuit upheld the special condition, finding it was supported by individualized findings, and sufficient narrow in light of those findings. Judge Bye dissented. U.S. v. Kelly, 677 F.3d 373 (8th Cir. 2012).
8th Circuit permits supervised release term in excess of 60 months for § 841 violation. (580) Defendant was initially sentenced to 60 months of supervised release. In May 2010, the court revoked defendant’s supervised release, sentencing him to 90 days’ imprisonment, followed by a new 60-month term of supervised release. After being released from his 90-day sentence, defendant again violated the terms of his supervised release, and the court sentenced him to another term of 90 days of imprisonment, followed by a new 57-month term of supervised release. Defendant did not object to the sentence. On appeal, defendant argued that the district court erred in extending his supervised release term beyond the five years set forth in 18 U.S.C. § 3583(b)(1) (“Except as otherwise provided, the authorized terms of supervised release for a Class A or Class B felony [is] not more than five years). The Eighth Circuit rejected this argument. Defendant was convicted of violating 21 U.S.C. § 841, a statute which authorizes supervised release terms exceeding five years. Thus, the terms of the relevant sentencing statute, § 841, trumped the general terms of supervised release provided in § 3583(b). U.S. v. Brown, 676 F.3d 1138 (8th Cir. 2012).
8th Circuit upholds special condition of supervised release limiting defendant’s Internet access. (580) Defendant was convicted of receiving child pornography. He challenged a special condition of supervised release that barred him from accessing an Internet-connected computer or other device with Internet capabilities without prior approval of his probation officer. The Eighth Circuit upheld the condition. Given defendant’s use of the Internet to obtain thousands of images of child pornography, the condition was reasonably related to the statutory purposes of deterrence and protecting the public. The condition did not involve a greater deprivation of liberty than was reasonably necessary. The cases cited by defendant, U.S. v. Crume, 422 F.3d 728 (8th Cir. 2005), and U.S. v. Wiedower, 634 F.3d 490 (8th Cir. 2011), did not establish a per se rule that a district court may never impose a prior-approval Internet use restriction based on a defendant’s receipt and possession of child pornography. Defendant’s conduct was more egregious than the defendants in Crume and Wiedower. There was also reason for the court to be concerned about incorrigibility, since defendant was diagnosed with autism and a compulsive nature, and without successful treatment, was likely to repeat the conduct. U.S. v. Morais, 670 F.3d 889 (8th Cir. 2012).
8th Circuit approves limit on access to Internet as condition of supervised release. (580) Defendant was convicted of two counts of possession of child pornography. He contended that the district court abused its discretion by imposing a special condition of supervised release prohibiting him from accessing the Internet without approval from the probation office. The Eighth Circuit held that the district court did not plainly err in imposing the Internet restriction. The district court found that defendant was not just a passive possessor of child pornography, but rather “actively used a retrieval computer-type device in order to execute the crime.” The PSR, which stated that defendant had used a Limewire file sharing program, demonstrated that the limitations placed on defendant’s supervised release were appropriate because of the manner and method by which defendant had accessed the child pornography. U.S. v. Black, 670 F.3d 877 (8th Cir. 2012).
8th Circuit upholds ban on alcohol for defendant with history of substance abuse and mental health problems. (580) Defendant was convicted of being a felon in possession of a firearm. The court imposed, as a special condition of supervised release, a prohibition on the use of alcohol and the frequenting of bars, taverns, or other establishments whose primary source of income was derived from the sale of alcohol. Defendant had a history of substance abuse. At the time of her arrest, defendant failed to yield to law enforcement for about three miles and could not walk or stand when finally apprehended. She also had a history of mental health issues, including an attempted suicide. The Eighth Circuit ruled that the combination of substance abuse and mental health problems were sufficient to justify a supervised release condition prohibiting the use of alcohol. It was reasonable to treat defendant as a recovering drug user, and the sentencing court was permitted to recognize that “the use of alcohol limits a recovering person’s ability to maintain a drug-free lifestyle.” Moreover, defendant had been prescribed anti-depressant medications from 2003 through sentencing. Mixing a depressant like alcohol with a mental health condition of depression and antidepressant medications might well interfere with defendant’s rehabilitation upon release from custody. U.S. v. Mosley, 672 F.3d 586 (8th Cir. 2012).
8th Circuit remands where oral pronouncement conflicted with written judgment. (580) Defendant argued that the district court’s written judgment conflicted with its oral pronouncement of one of his conditions of supervised release. In pronouncing sentence, the district court stated: “If and when deemed necessary, due to an inability to keep track of the defendant’s whereabouts during supervised release, the defendant shall submit to any means utilized by the probation officer to track his whereabouts or location at any time.” The written judgment, however, provided that, “[a]s need be, should the defendant fail to comply with sex offender registration, he shall submit to any means utilized by the probation office to track his whereabouts or location at any time.” The parties agreed that the two statements conflicted, because each established a different condition precedent for the use of tracking devices. The Eighth Circuit agreed that the two conflicted, and found that the oral sentence controlled. The panel remanded with instructions to amend the written judgment to conform to the oral pronouncement of the special condition. U.S. v. Morais, 670 F.3d 889 (8th Cir. 2012).
8th Circuit approves prohibition on accessing Internet without approval of probation officer. (580) Defendant was convicted of possessing child pornography. He challenged for the first time on appeal a special condition of supervised release that prohibited him from accessing the Internet without the prior approval of the probation office. The Eighth Circuit found no plain error. The reasons for imposing the Internet condition were evident from the record, so any error did not affect defendant’s substantial rights. Defendant possessed 600 or more images of child pornography, including material that portrayed sadistic or masochistic conduct or other depictions of violence. These images were possessed on a computer connected to the Internet, and defendant distributed child pornography by using a peer-to-peer file-sharing program. The condition was reasonably related to the § 3553(a) factors and reasonably necessary to further the purposes of sentencing, including adequate deterrence and protection of the public from future crimes. U.S. v. Munjak, 669 F. 3d 906 (8th Cir. 2012).
8th Circuit upholds ban on using alcohol or entering bars or taverns. (580) Defendant challenged a special condition of supervised release prohibiting him from using alcohol and “from entering bars, taverns, or other establishments whose primary source of income is derived from the sale of alcohol.” Previous cases have upheld such bans for defendants with substance-abuse problems, but have reversed where the defendant’s history or crime of conviction did not support a complete ban on alcohol. Here, defendant’s crime of conviction was not related to alcohol or bars. He considered himself a “social” drinker, but reported daily use of marijuana since he was 13-years old. The district court found that defendant was a substance abuser, and noted that drug addicts, when they stop using drugs, frequently abuse alcohol. The Eighth Circuit upheld the special condition. Considering defendant’s extensive history of drug abuse, the record supported the district court’s assessment that defendant was drug dependent. The district court did not abuse its discretion by imposing the condition based on its belief that “drug users when they get off of drugs frequently abuse alcohol.” U.S. v. Forde, 664 F.3d 1219 (8th Cir. 2012).
8th Circuit upholds ban on alcohol use during lifetime term of supervised release. (580) Defendant argued that the district court plainly erred by prohibiting him from consuming alcohol during his lifetime term of supervised release because the court merely speculated that he had a drinking problem. Previous cases have reversed a complete ban on alcohol use where the defendant’s history or crime of conviction did not support it. The Eighth Circuit upheld the alcohol ban, finding alcohol played a role in defendant’s sexual abuse of a minor. Alcohol was used in the offense as part of the grooming process. Defendant provided the 13-year-old victims with alcohol both before and after he engaged in sexual intercourse with one of them. Defendant was a member of several Facebook groups devoted to drinking, and in Facebook chats with adolescent girls, he described partying with adolescents. U.S. v. Anderson, 664 F.3d 758 (8th Cir. 2012).
8th Circuit upholds prohibition on possessing sexually explicit materials. (580) Defendant was convicted of traveling with intent to engage in illicit sexual conduct with a 13-year-old girl. He argued for the first time on appeal that the district court erred by imposing a condition of supervised release that barred him from possessing sexually explicit materials. The Eighth Circuit agreed that the district court should have articulated its reasoning for the condition, but held that the oversight did not require reversal. Defendant failed to show how the error affected his substantial rights. There was substantial evidence in the record supporting the ban on porn. Although the current offense was defendant’s first offense for sexually predatory behavior, the record indicated that defendant had been engaged in such conduct since at least 2006. Second, even if the error affected his substantial rights, the appellate court would only exercise its discretion to remedy the error if it affect the fairness, integrity or public reputation of the judicial proceedings. The error did not. Prohibiting defendant from possessing sexually explicit material was reasonably related to “the nature and circumstances of [defendant’s] offense” and the goal of “protect[ing] the public from further crimes.” U.S. v. Anderson, 664 F.3d 758 (8th Cir. 2012).
8th Circuit finds no impermissible delegation to probation officer. (580) Defendant pled guilty to receipt and distribution of child pornography. The Eighth Circuit rejected defendant’s claim that several conditions of supervised release, requiring defendant to undergo certain testing and evaluation as required by the probation officer, constituted an impermissible delegation of judicial authority to the probation officer. An impermissible delegation occurs only where the district court gives an “affirmative indication” that it will not retain “ultimate authority over all of the conditions of supervised release.” No such affirmative indication occurred in this case. U.S. v. Thompson, 653 F.3d 688 (8th Cir. 2011).
8th Circuit upholds ban on possessing child or adult pornography. (580) Defendant pled guilty to the receipt and distribution of child pornography. As a condition of supervised release, the district court prohibited defendant from possessing or having under his control “any child or adult pornography which includes any sexually explicit materials.” The Eighth Circuit upheld the condition. Although defendant correctly asserted that the district court erred when it failed to make individualized findings on the record, the error was harmless. The reasons for the special conditions were sufficiently evident from the record. Defendant downloaded and viewed child porn for years before his conviction. When a defendant has demonstrated a sexual interest in children, a ban on the possession of child porn often serves to rehabilitate the defendant, to protect children, and to deter future activity. The condition was not unconstitutionally overbroad nor unconstitutionally vague. U.S. v. Thompson, 653 F.3d 688 (8th Cir. 2011).
8th Circuit upholds restricting child porn defendant’s access to children. (580) Defendant pled guilty to the receipt and distribution of child pornography. He challenged conditions of supervised release that barred him from residing with minors, prohibited him from coming within 500 feet of schools and other places used primarily by children, and barred him from working or volunteering in any activity that involved contact with children. He claimed that these conditions were an abuse of discretion because there was no evidence that defendant had abused children in the past. The Eighth Circuit found that restricting defendant’s interaction with minors was reasonable. Many of the images on defendant’s computer involved the molestation of prepubescent minors by adults. Moreover, defendant pled guilty both to receiving and distribution. This was a more serious offense than mere possession. U.S. v. Thompson, 653 F.3d 688 (8th Cir. 2011).
8th Circuit upholds supervised release condition barring working at credit union or bank. (580) Defendant pled guilty to being a felon in possession of a firearm. The district court imposed a special condition of supervised release barring him from obtaining employment with a federal credit union or any institution insured by the FDIC. Defendant argued that the occupational restriction was not reasonably related to the relevant § 3553(a) factors and that the court failed to support the restriction with sufficient individualized findings. At sentencing, the court explained that the special condition was appropriate “because of his history.” The Eighth Circuit agreed that this oral pronouncement was worded imprecisely, but found that the written judgment sufficiently clarified that the restriction was pursuant to 12 U.S.C. §§ 1785 and 1829. These statues provide that “any person who has been convicted of any criminal offense involving dishonesty or a breach of trust” may not serve as an employee of an “insured credit union” or an institution insured by the FDIC. Defendant’s prior convictions for theft and robbery were criminal offenses “involving dishonesty or a breach of trust.” Since the district court merely incorporated a statutory prohibition and ordered defendant to comply with federal law, there was no abuse of discretion. U.S. v. Carter, 652 F.3d 894 (8th Cir. 2011).
8th Circuit upholds standard conditions of supervised release that were not in oral sentence. (580) Defendant contended that the district court committed a sentencing error and violated his double jeopardy rights by imposing certain supervised release conditions through a written judgment after the district court failed to expressly state those conditions at the oral pronouncement of defendant’s sentence. The Eighth Circuit found no double jeopardy violation. The record reflected that defendant received sufficient notice at the time of the oral pronouncement of his sentence that he would be subject to numerous standard conditions of supervised release that would be described in more detail in the written judgment. The standard conditions of supervised release contained in the written judgment were virtually identical to the first 13 standard conditions listed in the Guidelines Manual. Thus, defendant had no legitimate expectation in the finality of his sentence as it was announced orally by the district court. U.S. v. White Bull, 646 F.3d 1082 (8th Cir. 2011).
8th Circuit upholds standard supervised release conditions spelled out in written judgment. (580) Two days after the district court orally imposed a sentence, the district court issued a written order containing the supervised release conditions. Defendant argued that the district court improperly added two new mandatory conditions and 13 new discretionary conditions to his supervised release terms. The Eighth Circuit affirmed the conditions. As to the allegedly new conditions, the court did advise defendant at sentencing that he must cooperate in the collection of DNA. As for the written requirement that defendant submit to drug testing, the district court had ordered that defendant comply with the standard conditions that it had adopted. Thus, he was on constructive notice of the mandatory statutory condition. The judge was not required to mechanically recite each standard condition. Defendant’s responsibility to submit to drug testing was also required by one of his special conditions that was recited during sentencing. U.S. v. Drapeau, 644 F.3d 646 (8th Cir. 2011).
8th Circuit rejects alcohol restrictions absent evidence defendant drank alcohol before offense. (580) Defendant challenged on appeal special conditions of release that barred him from consuming any alcoholic beverages, subjected him to warrantless searches of his person or residence or business, and required him to submit to blood, breath or urine tests. The government claimed the conditions were reasonably related to the § 3553(a) factors on the sole basis that even minimal involvement with alcohol might exacerbate defendant’s volatile temper. However, there was no allegation or evidence in the record to suggest that defendant had consumed any alcohol before his altercation, or that he ever had problems related to alcohol. The PSR did not recommend the special conditions at issue, and the court gave no explanation whatsoever when it imposed the conditions. The Eighth Circuit held that the error was plain, and affected defendant’s substantial rights. U.S. v. Wisecarver, 644 F.3d 764 (8th Cir. 2011).
8th Circuit holds that standard conditions of release did not conflict with oral pronouncement of sentence. (580) Defendant argued that the court’s written judgment, issued after defendant began serving his sentence, included conditions of supervised release that the court did not mention in the oral pronouncement of sentence, which altered his sentence in violation of the Double Jeopardy clause. The Eighth Circuit disagreed, ruling that the written judgment was not inconsistent with the oral pronouncement of defendant’s sentence. The disputed supervised release conditions were 13 “standard” conditions listed in § 5D1.3(c). At sentencing, the court told defendant that while on supervised release he would “be required to follow what are called standard conditions of supervision.” The court then provided a general overview of the standard conditions, telling defendant that “basically those standard conditions of supervision require that you live a law-abiding lifestyle,” and the court listed some of the specific requirements included in the standard conditions. The court also told defendant that these standard conditions would be “spelled out in the judgment that I’ll sign.” Defendant never objected to the court’s explanation of the standard conditions. U.S. v. Demery, 674 F.3d 776 (8th Cir. 2011).
8th Circuit rules court did not improperly delegate judicial function to probation officer. (580) As a condition of supervised release, the court said defendant would be required to “participate in any form of psychological, psychiatric counseling or sex offender treatment programming and counseling that the probation officer feels is reasonable and warranted.” The written judgment provided that defendant “shall participate in psychological/psychiatric counseling and/or a sex offender program, which may include inpatient treatment as approved by the probation officer.” The Eighth Circuit rejected defendant’s claim that the district court improperly delegated a judicial function to the probation officer by leaving to that officer’s discretion whether defendant must undergo counseling. Previous decisions establish that as long as the district court does not indicate affirmatively that it has disclaimed ultimate authority over the condition of supervised release, limited delegation to a probation officer is permissible. “Implicit in these decisions is the assumption that … the probation officer will consult with the court about the matter, or, at a minimum, the court will entertain a motion from the defendant for reconsideration of the probation officer’s initial decision.” U.S. v. Demery, 674 F.3d 776 (8th Cir. 2011).
8th Circuit rejects as overbroad condition barring defendant from material that contains nudity or alludes to sexual activity. (580) Defendant was convicted of being a felon in possession of a firearm. The district court barred defendant, as a special condition of supervised release, from possessing any material that “contains nudity or that depicts or alludes to sexual activity ….” The Eighth Circuit rejected the condition for two reasons. First, the court failed to make any findings to support the condition, let alone the individualized fact-finding required to show the need for the condition. Second, the condition involved a greater deprivation of liberty than was reasonably necessary and was overbroad. Nudity alone is not enough to make material legally obscene. Moreover, the condition barred defendant from material that merely alluded to sexual activity, which would include benign material such as the Bible, that made merely a passing reference to sexual activity. The rule would also prevent defendant from possessing contraceptives. U.S. v. Kelly, 625 F.3d 516 (8th Cir. 2010).
8th Circuit upholds computer and Internet restrictions on defendant who possessed child pornography. (580) Defendant was convicted of possessing child pornography. The court ordered, as conditions of supervised release, that defendant not, without prior permission, (1) use or possess a computer or access the Internet, (2) possess any type of camera, or (3) have any contact with any child under the age of 18. The Eighth Circuit affirmed. Even if his offense did not involve the use of a camera or contact with minors, such conditions have previously been upheld for defendants who were found guilty of possessing or receiving child pornography. The restriction on defendant’s computer use and Internet access was proper, given that defendant was a sophisticated computer user who had already violated a less restrictive condition of release. While defendant was on release prior to sentencing, the court restricted defendant’s use of computers and the Internet to college courses. During an unannounced visit to defendant’s home, a probation officer heard male voices originating from the computer, and discussing intercourse with a boy. When officers obtained a court order to seize the computer, the hard drives had been removed. U.S. v. Koch, 625 F.3d 470 (8th Cir. 2010).
8th Circuit upholds condition allowing probation office to track child porn defendant’s whereabouts. (580) Defendant pled guilty to knowingly receiving child pornography. The Eighth Circuit held that the district court did not abuse its discretion in imposing a special condition of supervised release allowing the probation office to track defendant’s whereabouts by any means it deemed necessary. See U.S. v. Mickelson, 433 F.3d 1050 (8th Cir. 2006) (upholding a similar condition in a receipt of child porn case). The condition was designed to assist defendant if he was tempted to have problems in the future. Defendant’s bond revocation during pretrial supervision for first degree forgery provided further support for the condition, particularly given the magistrate judge’s finding that defendant was a flight risk. Moreover, the district court maintained the ultimate authority over defendant. U.S. v. Durham, 618 F.3d 921 (8th Cir. 2010).
8th Circuit rejects special condition barring defendant from possessing material that contained nudity. (580) Defendant pled guilty to failing to register as a sex offender, in violation of 18 U.S.C. § 2250(a). The Eighth Circuit upheld conditions of supervised release barring defendant from using or possessing alcohol, from having any contact with children, including his own, without prior approval by the probation officer, and a condition barring defendant from coming within 500 feet schools, parks and other places commonly used by children. However, the panel ruled that the condition barring defendant from possessing any material, legal or illegal, that contained nudity or depicted or alluded to sexual activity, was plain error. Although prohibitions against possessing pornography have often withstood First Amendment challenges, this special condition went beyond that, barring defendant from possessing any material that depicted nudity. By its terms, it would prohibit defendant from viewing a biology textbook or purchasing some art books. If the district court wished to limit defendant’s access to pornography, the special condition could have been written to state exactly that. U.S. v. Simons, 614 F.3d 475 (8th Cir. 2010).
8th Circuit finds error in advising of supervised release term did not affect guilty plea. (580) The AUSA correctly told defendant the maximum sentence for his offense was ten years, but incorrectly stated the maximum term of supervised release was three years. The statutory minimum and maximum terms of supervised release were five years and life, respectively. In order to show plain error in this context, defendant was required to show “a reasonable probability that but for the error, he would not have entered a guilty plea.” The Eighth Circuit ruled that defendant failed to make this showing. Defendant’s affidavit was unconvincing. It was improbable that a defendant’s decision to enter into a plea agreement would be driven by the potential term of supervised release rather than the potential ten-year term of actual incarceration. Moreover, defendant’s actions belied his claim that he ascribed high importance to the potential term of supervised release. He failed to object to the PSR’s statement that differed from the advice he previously received, and did not attempt to withdraw his plea or object at sentencing when the court imposed the five-year term of supervised release. U.S. v. Garcia, 604 F.3d 575 (8th Cir. 2010).
8th Circuit upholds release condition requiring defendant to participate in and pay for sex offender treatment. (580) Defendant and others were convicted of drug conspiracy charges. He argued that the district court erred by ordering, as a condition of supervised release, that he participate in and pay for “sex offender and/or mental health treatment.” His PSR indicated that in 1995, defendant was found guilty of first-degree criminal sexual conduct for raping a woman he met at a bar. According to the PSR, defendant ordered her to perform oral sex at gunpoint, and then he and another individual raped her. He had previously pled guilty to misdemeanor domestic assault and failed to complete a domestic abuse program. He served eight years for the criminal sexual conduct conviction, and refused to undergo “treatment” while in prison. Defendant was still under supervision at the time of the instant drug offense. He was required to register as a sex offender under state and federal law for the sex offense. The Eighth Circuit upheld the sex-offender treatment requirement. Although it did not relate to the drug offenses, it did relate to “another offense that the defendant previously committed.” U.S. v. Fenner, 600 F.3d 1014 (8th Cir. 2010).
8th Circuit upholds ban on Internet access for child porn defendant. (580) Defendant was convicted of possessing child pornography. He objected to four special conditions of release, which prohibited him from (1) having contact or living with children under the age of 19 unless approved by his probation officer; (2) coming within 500 feet of schools, yards, parks or other places used primarily by children, unless approved by the probation officer; (3) viewing or possessing any sexually-oriented materials; and (4) except for purposes of his employment, using or having access to any electronic media that had Internet service or photography capability. The Eighth Circuit upheld all four conditions. The special condition barring Internet access unless approved by the probation officer was the closest question. However, the condition was sufficiently tailored to the particular facts of this case. The condition was not a blanket prohibition—defendant would have unlimited access to computers for employment purposes. In addition, he could obtain permission from his probation officer and gain computer access for any and all other legitimate personal purposes. U.S. v. Stults, 575 F.3d 834 (8th Cir. 2009).
8th Circuit says requiring defendant to participate in treatment program was not plain error. (580) The district court imposed a special condition of supervised release that required defendant to “participate in and successfully complete a program of testing and treatment for substance abuse.” She argued that this was error because there was no indication in the record that she ever abused controlled substances. However, unobjected portions of defendant’s PSR alleged that (a) a psychiatrist at a community mental health center expressed a concern that defendant may have been taking medications prescribed by a large number of doctors and many of said medications were of a duplicate nature; and (2) records from the Bureau of Prisons reflected that during an altercation, medical staff classified elements of her behavior to be of a drug seeking nature. Although these suspicions, without more, were a weak basis for the special condition, the Eighth Circuit found no plain error. U.S. v. Kreitinger, 576 F.3d 500 (8th Cir. 2009).
8th Circuit upholds condition of release to pay $2,000 a month toward IRS obligation. (580) Defendant was sentenced to five years probation after being convicted of failing to file employment tax returns or pay employment taxes. Special conditions of release required defendant to “cooperate fully” with the IRS in filing “all tax returns required by law,” and to “pay all amounts due to the IRS as finally determined.” The district court later revoked defendant’s supervised release and sentenced her to 32 months of supervised release. The court re-imposed the special conditions, and added a new special condition requiring defendant to pay $2,000 per month towards her IRS obligations beginning 30 days after her release from prison. The Eighth Circuit held that the new condition of release was not an abuse of discretion. The new special condition was not required to comport with the Mandatory Victims Restitution Act, because it did not impose a restitution requirement. It was merely a requirement that defendant comply with the tax laws, including the payment of her outstanding tax obligations. U.S. v. Miller, 557 F.3d 919 (8th Cir. 2009).
8th Circuit upholds requirement of DNA testing while in prison. (580) Defendant objected to a condition of supervised release requiring him to “cooperate in the collection of DNA,” arguing that the collection must be conducted by qualified medical personnel rather than a probation officer. Defendant’s challenge arose from his experience on probation, when a probation officer in Arkansas sought to collect DNA by pricking defendant’s finger to draw six drops of blood. The Eighth Circuit upheld the condition, noting that the district court’s order did not make the collection of DNA under the direction of the probation office, but included the requirement in its discussion of defendant’s incarceration. Federal law requires the Bureau of Prisons to collect a DNA sample from each individual in custody who has been convicted of a felony. 42 U.S.C. § 14135a(A)(1)(B). Defendant made no showing about the procedures used by the BOP to collect DNA or the qualifications of personnel who do so. U.S. v. Wynn, 553 F.3d 1114 (8th Cir. 2009).
8th Circuit upholds mental health counseling requirement as directed by probation office. (580) The district court ordered that during supervised release, defendant “participate in mental health counseling (if so directed) under the supervision of the U.S. Probation Office.” Defendant argued that there was no nexus between his offense (impersonating a federal officer) and any mental condition. However, defendant had a history of violent and threatening conduct. He was referred for mental health counseling as part of supervised release in 1998 and 1999 and was prescribed medications. While on probation for the current offense, defendant participated in a counseling session during which he told a counselor that he entertained suicidal thoughts. The Eighth Circuit found that the counselor’s report provided a legitimate basis for the court to impose the condition. Giving the probation office the authority to decide whether to order mental health counseling was not an impermissible delegation of judicial function. U.S. v. Wynn, 553 F.3d 1114 (8th Cir. 2009).
8th Circuit approves requirement that defendant remove misleading decals from his vehicle. (580) Defendant pled guilty to impersonating a federal officer, in violation of 18 U.S.C. § 912. As a condition of supervised release, the district court ordered defendant to remove from his Jeep several decals which created the impression that defendant was with the U.S. Border Patrol. The Eighth Circuit held that the district court did not abuse its discretion in ordering defendant to remove the decals from his vehicle. The decals were instrumentalities of his offense of conviction, and the condition was reasonably related to the nature and circumstances of the offense. The restriction imposed was tailored to prevent defendant from displaying only those decals used in the commission of his offense. It did not extend to other objects or images that defendant could use to communicate patriotic ideas in a lawful manner. U.S. v. Wynn, 553 F.3d 1114 (8th Cir. 2009).
8th Circuit upholds prohibition on viewing all sexually oriented material and restriction on computer access. (580) Defendant was convicted of producing child pornography. One condition of supervised release prohibited defendant from viewing, possessing or entering any location that sells any form of pornography or sexually oriented material. Another condition prohibited defendant from accessing or possessing a computer without prior approval of his probation officer. The Eighth Circuit upheld both conditions. Given defendant’s history of sexual offenses and the desire to deter him from this conduct in the future, the condition prohibiting him from accessing sexual explicit material involving adults was not overly broad. Moreover, a restriction on computer usage does not constitute an abuse of discretion if the district court has found that the defendant used his computer to do more than merely possess child pornography, particularly if the prohibition on computer usage is not absolute. Here, the special condition was not an abuse of discretion because it was not absolute and because evidence was presented that defendant had used a computer to print out images of child pornography, which could easily have been done for the purpose of transferring them to others. U.S. v. Boston, 494 F.3d 660 (8th Cir. 2007).
8th Circuit finds sufficient nexus between use of Internet and exploitation to warrant supervised release condition restricting Internet access. (580) Defendant pled guilty to receiving and attempting to receive child pornography. The district court imposed a lifelong term of supervised release, with a special condition that restricted defendant’s Internet access. The Eighth Circuit affirmed the Internet restriction, finding a sufficient nexus between defendant’s use of the Internet and his sexual abuse of his young niece to make the condition “reasonably related” to the sentencing factors in 18 U.S.C. § 3553(a). Defendant admitted that he could not refrain from looking at child pornography on the Internet, and that his actions with his niece were similar to material he found online. His admission suggested that he thought about and took instruction from images and “stories” he had seen online, and that he compared them to what he was doing to the little girl. Moreover, severe restrictions might be the only way to prevent defendant from accessing the prohibited material. U.S. v. Alvarez, 478 F.3d 864 (8th Cir. 2007).
8th Circuit holds that non-binding recommendation to BOP that defendant receive sex offender treatment was not reviewable. (550) Defendant pled guilty to possession and distribution of child pornography. He argued that the district court erred in recommending to the Bureau of Prisons (BOP) that he receive sex offender treatment while incarcerated. The Eighth Circuit held that the non-binding recommendation was not a final decision by the district court and thus, was not reviewable on appeal. U.S. v. Kerr, 472 F.3d 517 (8th Cir. 2006).
8th Circuit upholds conditions of release requiring defendant to register as sex offender and limiting contact with minors. (580) Defendant pled guilty to possession and distribution of child pornography. The Eighth Circuit upheld a condition of supervised release requiring defendant to register as a sex offender. Defendant’s claim that he was not a sexual predator was based on the testimony of his expert. However, the court specifically discredited this testimony and found the expert’s report not helpful. The appellate court also upheld three special conditions of supervised release that limited defendant’s contact with minors. Although defendant did not have a history of sexually abusing minors, the absence of such a history is not necessarily determinative when deciding whether the district court erred in imposing contact conditions. Child pornography distribution offenses are more serious than mere possession offenses. Defendant could still contact minors or enter places minors congregate as long as he obtained prior permission from the probation office. Moreover, because he was childless, he was not restricted from contacting his own children. U.S. v. Kerr, 472 F.3d 517 (8th Cir. 2006).
8th Circuit holds that four-year term of supervised release was a mistake, not a variance or a departure. (580) Defendant pled guilty to marijuana conspiracy charges, in violation of 21 U.S.C. § 841. The PSR stated that the guideline range of supervised release was three years. The district court sentenced defendant to 46 months’ imprisonment to be followed by four years of supervised release. The court gave no explanation for deviating from the guidelines, and defendant never objected to the four-year term. The Eighth Circuit held that the error in imposing a term of supervised release exceeding the guideline maximum was plain error. The four-year term was a mistake, not a departure or a variance. At the plea hearing, the judge mistakenly stated that defendant was subject to a three-to-five-year guideline term of supervised release. The court repeated this error in its written Statement of Reasons. Moreover, at sentencing, there was no discussion concerning increasing defendant’s term of supervised release beyond the guideline range. Defendant was prejudiced by the error, since his period of supervision was erroneously increased by a year. U.S. v. Leppa, 469 F.3d 1206 (8th Cir. 2006).
8th Circuit remands for finding of whether complete Internet ban was least restrictive means necessary to protect public. (580) Defendant pled guilty to possession of child pornography. The Eighth Circuit remanded for a determination of whether the special supervised release condition complete barring defendant from Internet access was the least restrictive means reasonably necessary to deter further criminal conduct and protect the public. Given defendant’s repeated offenses of viewing child pornography over the Internet, a complete ban on Internet access was reasonably related to the statutory purposes of deterring criminal conduct and protecting the public from further crimes of the defendant. However, a complete ban on Internet access is difficult to justify as a least restrictive means of satisfying the statutory objectives of supervised release in the case of a defendant whose criminal conduct involved simple possession of child pornography. “Such a condition should only be imposed on a record that permits a thorough evaluation of other alternatives that might be sufficient to serve the statutory purposes of protecting the public and deterring future crimes.” The record here was not sufficient to demonstrate that the complete prohibition on Internet access was reasonably necessary. It was unclear why the court believed that a filtering program, combined with regular monitoring and inspections by the probation office, would be inadequate. U.S. v. Mark, 425 F.3d 505 (8th Cir. 2005).
8th Circuit directs more tailored restriction on computer use where defendant never used computer to attract children. (580) The district court ordered as conditions of supervised release restricting defendant from using a computer and the Internet, prohibiting him from being in places where minor children congregate, and restricting his contact with children under the age of 18. The Eighth Circuit ruled that the computer restriction was overbroad. Although defendant had a lengthy history of grievous sexual misconduct, there was no evidence that ever used his computer for anything beyond simply possessing child pornography. Given the absence of evidence demonstrating more serious abuses of computers or the Internet, the district court on remand should impose a more narrowly-tailored prohibition against accessing certain categories of websites and Internet content. The other two conditions of release were proper. The court read the restriction from places where children congregate to bar defendant’s presence only at those places where children under the age of 18 actually congregate, not from all such places. Finally, the condition limiting his contact with children under the age of 18 was not overbroad. He could have contact with children, including his own, with the written permission of his probation officer. This provision did not bar defendant from accepting a letter written to him by one of his children. U.S. v. Crume, 422 F.3d 728 (8th Cir. 2005).
8th Circuit upholds release condition that defendant disclose financial information to probation officer. (580) Defendant pled guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He argued that the district court abused its discretion by imposing a special condition of supervised release that required him to reveal financial information to the probation office upon request. The Eighth Circuit found no error. While the condition was not reasonably related to his offense, the condition was reasonably related to defendant’s history of non-payment of his child support obligations. The condition did not involve a greater restriction than necessary. The condition required defendant to disclose financial information upon the request of the probation office and to obtain that office’s approval before obtaining any new lines of credit. It is not a prohibition on behavior, but rather a monitoring device that is to be used by the probation office to complement the condition that he follow state court child support orders and remain employed. U.S. v. Camp, 410 F.3d 1042 (8th Cir. 2005).
8th Circuit approves occupational restriction for physician’s assistant addicted to pain pills. (580) Defendant, who worked as a physician’s assistance for more than 15 years, became addicted to prescription pain medication. He supported his addiction with prescriptions he obtained by either injuring himself or feigning injury, and was convicted of health care fraud. A condition of supervised release barred defendant from “working in the medical field during the term of supervision.” The Eighth Circuit upheld the special condition because it was clearly related to his crimes. Defendant fraudulently obtained prescription medication hundreds of times over the course of several years. His occupation as an orthopedic physician’s assistant placed him in close proximity to prescription medication, and he used sample medications obtained through his employment on at least two previous occasions. Although defendant voluntarily sought inpatient treatment for his addiction in 2001, he withdrew from the program against medical advice and was characterized as having a “very high” risk of relapse. U.S. v. Carlson, 406 F.3d 529 (8th Cir. 2005).
8th Circuit upholds condition of release barring defendant from using alcohol or frequenting bars. (580) As a special condition of supervised release, the district court prohibited defendant from the “use of alcohol” and “from frequenting bars, taverns, or other establishments whose primary source of income is derived from the sale of alcohol.” Defendant argued that this condition violated his right to contract for employment. The Eighth Circuit upheld the condition. The record clearly demonstrated that defendant had a significant problem with alcohol and controlled substances. The PSR detailed at least one incident in which defendant assaulted others while drunk. Defendant admitted to drinking “a couple of quarts” of beer on weekends and receiving treatment on an out-patient basis on several occasions. Defendant’s claim that this restriction would impact his potential for future employment was without merit. Defendant was free to pursue all forms of employment upon release from prison. If upon release he could only find employment that required him to enter a bar, he may seek modification of his release conditions from the district court. U.S. v. Henkel, 358 F.3d 1013 (8th Cir. 2004).
8th Circuit says claim that supervised release condition was illegal was insufficient to invoke exception to waiver of appeal. (580) Defendant contended that the district court improperly required him to register as a sex offender as a special condition of his supervised release. However, as part of his plea agreement, defendant knowingly and voluntarily waived most of his appellate rights. Defendant contended that the waiver was not applicable because the challenged condition resulted in an illegal sentence. The Eighth Circuit ruled that it should dismiss his appeal unless it resulted in a miscarriage of justice. Although the miscarriage of justice exception allows an appellate court to hear appeals of illegal sentences, even where an otherwise valid waiver exists, the conditions of supervised release imposed by a district court do not fall within this narrow exception, unless the conditions “were based on some other constitutionally impermissible factor….” U.S. v. Andis, 333 F.3d 886 (8th Cir. 2003) (en banc). Since defendant did not allege any circumstance surrounding the imposition of his sentence that would fall within the miscarriage of justice exception, this case was indistinguishable from Andis. The panel dismissed his appeal. U.S. v. Blue Coat, 340 F.3d 539 (8th Cir. 2003).
8th Circuit holds that waiver of appeal included conditions of supervised release. (580) As part of his plea agreement, defendant waived “all rights to appeal whatever sentence is imposed, including any issues that relate to the establishment of the Guideline range, reserving only the right to appeal from an upward or downward departure ….” On appeal, defendant claimed that he implicitly retained the right to appeal an illegal sentence, and that the conditions of his supervised release were illegal because they were generic conditions imposed without regard to the specific characteristics of his crime, as required by 18 U.S.C. § 3583(d). The Eighth Circuit held that because defendant entered into a plea agreement that contained a valid waiver of his appellate rights and the sentence imposed was not illegal, the conditions of his supervised release could not be reviewed on appeal. Although a defendant has the right to appeal an illegal sentence in the face of otherwise valid waiver, this exception is extremely narrow. Any sentence imposed within the statutory range is not subject to appeal. The challenged conditions here did not constitute an illegal sentence. Defendant did not claim that he failed to enter into the appeal waiver knowingly and voluntarily, or that the supervised release conditions constituted a miscarriage of justice because they were based on some constitutionally impermissible factor, such as race. Thus, the conditions were not subject to review on appeal. U.S. v. Andis, 333 F.3d 886 (8th Cir. 2003) (en banc).
8th Circuit upholds requirement that defendant obtain approval before opening new lines of credit. (580) The district court ordered, as a special condition of supervised release, that defendant obtain the probation officer’s prior approval before opening new lines of credit or incurring debt. Defendant argued that the condition was not reasonably related to the offense of conviction (burglary and assault) and involved a greater deprivation of liberty than necessary. However, the guidelines recommend such a condition in cases in which the court has ordered a defendant to pay restitution or a fine pursuant to an installment schedule and the defendant is not compliance with the payment schedule. U.S.S.G. § 5D1.3(d)(2). Here, defendant was ordered to pay $3740 to the victim as restitution for lost wages and property damage resulting from the burglary and assault. Because defendant had a documented history of unemployment and had no assets, the Eighth Circuit held that the special condition was not an abuse of discretion. U.S. v. Weiss, 328 F.3d 414 (8th Cir. 2003).
8th Circuit bars child pornographer from owning photographic equipment, having internet access or possessing computer. (580) Defendant sold child pornography through a website he operated. Defendant challenged two special conditions of his supervised release. The first condition prohibited defendant from “owning or operating any photographic equipment including … computers, scanner, and printers.” The other challenged condition stated that defendant may not have internet service in his residence and may only possess a computer if he is granted permission by his probation officer and agreed to periodic inspections and other restrictions. The Eighth Circuit upheld the conditions. First, they were reasonably related to the statutory factors for supervised release. Limits on defendant’s use of computers and the internet were related to the circumstances of his offense – running a child pornography website for profit. The conditions were calculated to deter defendant from repeating his illegal activity and to protect the public from similar conduct Second, the conditions did not involve “a greater deprivation of liberty than is reasonably necessary” to advance the statutory interest. Selling subscriptions to child pornography is more serious than a possession offense. The conditions were not occupational restrictions and did not constitute cruel and unusual punishment. U.S. v. Fields, 324 F.3d 1025 (8th Cir. 2003).
8th Circuit upholds ban on possession or consumption of alcohol as condition of supervised release. (580) As a condition of supervised release, the district court mandated that defendant not consume or possess alcohol. Although defendant contended that his offense was not related to alcohol and there was no evidence he abused alcohol, the Eighth Circuit disagreed and affirmed the condition. There was adequate evidence in the record for the district court to conclude that a ban on alcohol was reasonably related to the history and characteristics of defendant. He was cited twice for possession of intoxicants while he was in prison. He was arrested in 1991 for exposing himself when he was extremely intoxicated. Furthermore, according to defendant’s wife and mother, defendant was either “high on drugs or very intoxicated” when they had to call the police because he threatened to kill two relatives and then himself. In addition, defendant had a serious substance abuse problem. He admitted that he had abused a large variety of illegal drugs. The use of alcohol “limits a recovering person’s ability to maintain a drug-free lifestyle.” U.S. v. Crose, 284 F.3d 911 (8th Cir. 2002).
8th Circuit says five-year term of supervised release did not violate Apprendi. (580) Defendant argued that under Apprendi v. New Jersey, 530 U.S. 466 (2000), his five-year term of supervised release was inconsistent with USSG 5D1.2. He contended that the court must construe the penalty for his conviction without reference to drug quantity under § 841(b)(1)(C) in light of Apprendi, and not based on drug quantity under § 841(b)(1)(A), as defendant was initially sentenced. Following this reasoning, defendant argued that the applicable term of supervised release under the guidelines changes from three to five years for Class A felonies like § 841(b)(1) (D), and two to three years for Class C felonies like § 841(b)(1)(C). The Eighth Circuit concluded, however, that Apprendi does not require this result. The relevant statute, 21 U.S.C. § 841(b)(1)(C), mandates a term of at least three years’ supervised release. The statute sets a mandatory minimum, but no maximum penalty, thus permitting supervised release terms from three years to life. Because defendant’s five-year term of supervised release did not exceed the life term authorized by § 841(b)(1)(C), Apprendi did not require submission to a jury of factors used to determine the penalty. U.S. v. Kurkowski, 281 F.3d 699 (8th Cir. 2002).
8th Circuit holds that court abused discretion in imposing sex offender conditions of supervised release. (580) Defendant originally pled guilty to bank robbery. His supervised release was revoked on two separate occasions. At the second revocation hearing, the district court sentenced him to six months’ imprisonment and an additional term of supervised release. In determining the terms and conditions of his third term of supervised release, the district court for the first time took into account his 1986 rape conviction and ordered that “special conditions of sex offenders” be imposed. The Eighth Circuit held that the district court abused its discretion in imposing the sex offender conditions of release, since they bore no reasonable relationship to the nature of the convicted offense, armed bank robbery. The record did not show that the special conditions were reasonably necessary to deter defendant from repeating his sex crime, which occurred 15 years ago. U.S. v. Scott, 270 F.3d 632 (8th Cir. 2001).
8th Circuit finds no plain error under Apprendi in setting supervised release term. (580) Defendant pled guilty to drug trafficking charges. He argued for the first time on appeal that his five-year term of supervised release exceeded the three-year maximum term authorized under 18 U.S.C. § 3583(b)(2), which he contended was applicable to his conviction under Apprendi v. New Jersey, 530 U.S. 466 (2000) because the jury did not make the drug quantity finding upon which his sentence was based. In U.S. v. Le May, 952 F.2d 995 (8th Cir. 1991), the Eighth Circuit held that the maximum-term limitations in § 3583(b) do not apply when a statute such as 21 U.S.C. § 841(b) expressly authorizes a longer term of supervise release. Thus, even if Apprendi applies to the supervised release portion of a sentence, the Eighth Circuit found no plain error in sentencing defendant, since his term of supervised release did not exceed the maximum term authorized under § 841(b)(1)(C) (“at least 3 years”), the sentencing statute that applied in the absence of a specific drug quantity finding. U.S. v. Scott, 243 F.3d 1103 (8th Cir. 2001).
8th Circuit holds court lacked authority to toll supervised release upon deportation. (580) Appellate courts have reached contrary answers on whether a district court has the sentencing authority to toll a criminal defendant’s supervised release upon deportation or unknown illegal presence in the U.S. Compare U.S. v. Balogun, 146 F.3d 141 (2d Cir. 1998) (holding that Congress did not provide for suspension of supervised release term upon deportation), with U.S. v. Isong, 111 F.3d 428 (6th Cir. 1997) (holding that sentencing court has discretionary authority under 18 U.S.C. § 3583(d)). The Eighth Circuit, agreeing with the Second Circuit, held that the district court did not have the authority to suspend defendant’s supervised release upon deportation and during any unknown illegal presence in the U.S. The authorization in 18 U.S.C. § 3583(d) to impose “any other condition [of supervised release] it considers to be appropriate” must be read in the overall context of the statute. Virtually every condition mentioned in § 3583(d) as a possible condition of supervised release expressly confines the conduct of the defendant. Thus, the phrase “any other condition” likewise was intended to refer to other requirements that the defendant do or refrain from doing specified acts. Moreover, Congress has authorized courts to order deportation as conditions of release. Congress could not have intended to allow a defendant to be excluded from the U.S. as a condition of supervised release while, at the same time, allow all conditions of supervised release to be suspended for the duration of that exclusion. U.S. v. Juan-Manuel, 222 F.3d 480 (8th Cir. 2000).
8th Circuit rejects condition of supervised release requiring psychological counseling. (580) Defendant pled guilty to attempting to cause a financial institution not to file a required report. As a condition of supervised release, the district court ordered defendant to “participate in an appropriate psychological/psychiatric counseling program as directed by the probation officer.” The Eighth Circuit held that the counseling requirement was an abuse of discretion. The instances of physical abuse recounted by defendant’s wife occurred at least 13 years earlier, and the wife admitted that defendant had not abused her since then. Thus, the use of the condition as a deterrent made little sense since the behavior had ceased independently. Moreover, the PSR did not suggest any past or present mental health problems. There was nothing to suggest the condition would provide “needed” medical attention. Instead, it appeared based on a groundless assumption that defendant would become abusive towards his wife upon his release from prison, even though he had not abused her in over a decade. U.S. v. Kent, 209 F.3d 1073 (8th Cir. 2000).
8th Circuit rules that failure to advise of effects of supervised release would not have changed plea. (580) Defendant argued that the district court erred in accepting his plea because it did not advise him of the effect of his supervised release. Under Rule 11, a district court must inform a defendant of both the applicability of a term of supervised release and the effect of that term, including the consequences upon revocation. See U.S. v. Osment, 13 F.3d 1240 (8th Cir. 1994). The Eighth Circuit ruled that the court’s omission was harmless error. Unlike the defendant in Osment, who was not informed that he faced supervised release at all, defendant was told that he faced up to five years’ supervised release. Defendant’s decision to plead guilty was prompted by last-minute evidence obtained by the government. Given defendant’s knowledge that he faced five years’ supervised release, and the government’s evidence that negated his defense, the Eighth Circuit concluded that being told of the precise effect of violating supervised release would not have changed defendant’s mind about pleading guilty. U.S. v. Prado, 204 F.3d 843 (8th Cir. 2000).
8th Circuit finds restriction on additional debt reasonable in light of restitution obligation. (580) The district court ordered, as a condition of supervised release, that defendant not incur new credit charges or open additional lines of credit without written approval of the district court. The Eighth Circuit found the condition reasonable given defendant’s restitution obligations. Section 5D1.3(d)(2) recommends that if an installment schedule for payment of restitution or a fine is imposed, the court should also impose a condition prohibiting the defendant from incurring new credit charges or opening new lines of credit without approval of the probation officer. Here, the district court ordered defendant to pay more than $5.7 million in restitution to more than 100 former clients. Given this restitution obligation, it was not unreasonable for the district court to insist that defendant refrain from taking on additional debt without permission. U.S. v. Ervasti, 201 F.3d 1029 (8th Cir. 2000).
8th Circuit upholds total ban on alcohol and counseling program as condition of supervised release. (580) The district court ordered as conditions of defendant’s supervised release (1) a total prohibition on his purchase, use or distribution of alcohol, and (2) the requirement that he attend and complete any treatment or counseling program for alcohol or controlled substances as directed by his probation officer. The Eighth Circuit affirmed the restrictions even though there was no evidence that defendant had an alcohol problem. Defendant’s personal history included years of substance abuse (from 1968 to 1989), consisting largely of methamphetamine abuse and infrequent use of cocaine and LSD. Any use of alcohol would limit defendant’s ability to maintain a drug-free lifestyle. Thus, the case was distinguishable from U.S. v. Bass, 121 F.3d 1218 (8th Cir. 1997), where the court struck down a total alcohol ban where there was no evidence of substance abuse. The requirement that defendant attend counseling or treatment as directed by his probation officer was appropriate because defendant had been a substance abuser in the past. U.S. v. Behler, 187 F.3d 772 (8th Cir. 1999).
8th Circuit upholds financial disclosure requirement even though no fine or restitution ordered. (580) Defendant argued that because he was not ordered to pay a fine or restitution, the district court abused its discretion by ordering him to provide his probation officer with access to financial information. The Eighth Circuit disagreed. The district court understood that money and greed were at the heart of defendant’s drug distribution offenses and believed that monitoring his financial situation would aid in detecting any return to his former lifestyle of drug distribution. U.S. v. Behler, 187 F.3d 772 (8th Cir. 1999).
8th Circuit upholds prohibition against self-employment as condition of supervised release. (580) Defendants were convicted of RICO charges stemming from their operation of several fraudulent insurance companies. The Eighth Circuit upheld a condition of supervised release barring defendants from being self-employed during the period of supervised release. “In light of defendants’ long-standing and extensive pattern of criminal racketeering activities, a prohibition against self-employment during supervised release [was] a restriction reasonably necessary to protect the public.” U.S. v. Coon, 187 F.3d 888 (8th Cir. 1999).
8th Circuit rejects condition of supervised release barring employment as truck driver. (580) Based on a tip from defendant’s family, police searched a storage locker and found explosives that defendant had stolen years earlier while in the Army. At the time, defendant was employed as an over-the-road truck driver. At sentencing, doctors reported that defendant suffered from depression that improved with medication, but that he would probably cease taking medication if removed from a controlled environment. As a condition of supervised release, the district court barred defendant from employment as a truck driver, if it involved more than 24 hours absence from his home. The Eighth Circuit rejected the condition because it was not reasonably related to defendant’s offense. Although the government was concerned that it could not monitor whether defendant was taking his medication and abstaining from drug and alcohol use while on the road, truck drivers are subject to strict government regulation of drug and alcohol use and are typically subject to work rules that permit employer monitoring while on the road. On remand, the court can modify the standard conditions of supervised release to fit the situation. The Eighth Circuit affirmed other special conditions of supervised release, including an alcohol consumption prohibition, a requirement that defendant participate in drug and alcohol testing and treatment, a condition that he undergo mental health counseling and treatment, and a requirement that he participate in a Batterer’s Education Program. U.S. v. Cooper, 171 F.3d 582 (8th Cir. 1999).
8th Circuit holds that safety valve provision applies to both imprisonment and supervised release. (580) Defendant was convicted of drug charges, which carried a mandatory minimum sentence of 20 years in prison and ten years of supervised release. The district court found that defendant qualified for safety valve protection under § 5C1.2. The district court sentenced defendant to 76 months of imprisonment, but nevertheless imposed the statutory minimum ten years of supervised release, stating that it was bound by the mandatory minimum statute. The Eighth Circuit held that the safety valve provision applies to both terms of imprisonment and terms of supervised release. See § 5C1.2, note 9. The district court erred in its belief that it was bound by law to impose the statutory minimum period of supervised release. Once the district court determined that defendant was subject to safety valve protection, the court was not bound by the mandatory minimum statute, and in fact had no authority to consider it at all. The court’s statement that it believed a ten-year term of supervised release was appropriate was not sufficient, by itself, to support an upward departure. U.S. v. Hendricks, 171 F.3d 1184 (8th Cir. 1999).
8th Circuit upholds six-year term of supervised release. (580) Defendant pled guilty to violating 21 U.S.C. § 841(a)(1) and § 846. The district court sentenced him to 41 months’ imprisonment and 6 years’ supervised release. He argued that the 6-year supervised release term violated the 3-year maximum supervised release term for a Class C felony found in 18 U.S.C. § 3583(b)(2). The Eighth Circuit upheld the six-year term of supervised release. The Anti-Drug Abuse Act of 1986, under which defendant was sentenced, amended § 3583(b) by adding the caveat “[e]xcept as otherwise provided” to the maximum term of supervised release. This eliminated any conflict with statutes such as § 841(b), which authorize supervised release terms that exceed § 3583(b). U.S. v. Bongiorno, 139 F.3d 640 (8th Cir. 1998).
8th Circuit upholds alcohol restriction during 6-year period of supervised release. (580) Defendant pled guilty to drug crimes and was sentenced to 41 months’ imprisonment and 6 years’ supervised release. The Eighth Circuit upheld the special conditions of supervised release. Requiring defendant to complete community service is expressly authorized under § 5F1.3. The court declined to exercise its remedial discretion to review the condition that defendant not consume or have anything to do with alcohol during the period of supervised release. Judge Arnold dissented, arguing that there was no evidence that alcohol was in any way related to the offense. U.S. v. Bongiorno, 139 F.3d 640 (8th Cir. 1998).
8th Circuit finds supervised release is like South Dakota probation for Assimilative Crimes Act purposes. (580) Defendant was charged under the Assimilative Crimes Act with attempted indecent exposure on an Indian reservation. Applicable South Dakota law provided for a one-year maximum term of incarceration. The district court imposed a maximum one year term of imprisonment plus a one-year term of supervised release. Defendant argued that the imposition of supervised release violated the “like punishment” provision of the ACA. The Eighth Circuit held that because probation, under South Dakota law, can follow a term of incarceration, involves government supervision, and serves society’s goal of rehabilitation, the sentence of imprisonment plus supervised release was like a punishment defendant could have faced in a state court. Although the term of incarceration imposed upon a defendant convicted under the ACA may not exceed that provided by state substantive law, the total sentence imposed—including supervised release—may exceed the maximum term of incarceration provided by state law. This is true even where, as here, the defendant was not eligible for any parole or probation because he was sentenced to the maximum term of imprisonment. U.S. v. Engelhorn, 122 F.3d 508 (8th Cir. 1997).
8th Circuit rejects alcohol prohibition as condition of supervised release. (580) Defendant argued that the district court abused its discretion when as a special condition of supervised release it absolutely prohibited him from obtaining or consuming alcohol. The Eighth Circuit agreed that alcohol prohibition was an abuse of discretion since there was no evidence that defendant abused alcohol or that the use of alcohol played a role in his offense. In U.S. v. Prendergast, 979 F.2d 1289 (8th Cir. 1992), the court found a similar restriction did not reasonably relate to the goals of rehabilitation and protection where there was no evidence that the defendant was an alcoholic or that the use of alcohol contributed in any way to the offense. Although defendant used marijuana twice a week, this did not make him drug dependent. The court could not assume that defendant would as a matter of course replace alcohol for marijuana. Moreover, even if he did, this would not be entirely unwelcome since alcohol is legal and marijuana is not. U.S. v. Bass, 121 F.3d 1218 (8th Cir. 1997).
8th Circuit upholds condition of supervised release requiring participation in drug treatment. (580) As a condition of supervised release, the district court ordered defendant to participate, as instructed by his probation officer, in a drug treatment program. Defendant argued that this improperly transferred to the probation officer the duty of the court to establish periodic drug testing. The Eighth Circuit disagreed. Section 3583(d) authorizes the district court to impose discretionary supervised release conditions. Defendant was a long-term drug addict who stole to feed his addiction. His sentence mandated 500 hours of drug treatment while he was in prison. Giving the probation officer authority to require additional drug treatment during supervised release was an appropriate discretionary condition that went beyond drug testing mandated by § 3583(d). The court also upheld a condition barring defendant from owning or possessing a firearm while on supervised release. Because defendant was a convicted felon who could not lawfully possess a gun, the condition merely clarified the requirement under § 3583(d) not to commit a crime. U.S. v. Morey, 120 F.3d 142 (8th Cir. 1997).
8th Circuit upholds condition of supervised release barring self‑employment. (580) Defendant sold franchises by misrepresenting what the buyers would receive for their money and by exaggerating the amount of money the buyers would be able to make through operating the franchises. After defendant was indicted and while he was out on bond, he sold more franchises under a different name. The Eighth Circuit upheld a condition of supervised release prohibiting defendant from maintaining self-employment during his term of supervised release. Defendant demonstrated that he was “given to excesses of salesmanship” in his businesses. Defendant operated three separate businesses that all ended up perpetuating the same cycle of fraud. Defendant needed an employment situation in which he was not left to his own devices. The prohibition on self‑employment was a reasonable way to protect the public from defendant’s practices and to channel his energies into a less destructive path. U.S. v. Choate, 101 F.3d 562 (8th Cir. 1996).
8th Circuit holds that use of later guidelines did not violate ex post facto clause where Congress amended statute to increase sentence. (580) Defendant was originally sentenced under the 1992 guidelines for four drug crimes. The appellate court affirmed the convictions but vacated the sentences on two counts for violating the ex post facto clause. After resentencing, defendant argued that the district court should have applied the 1987 guidelines for the supervised release determination. The Eighth Circuit held that use of the 1992 guidelines did not violate ex post facto clause. The October 1987 supervised release guideline designates only a three year term of supervised release for a Class A or B felony. In December 1987, however, Congress amended the statute to provide for a five‑year term of supervised release for a Class A or Class B felony. Although courts should generally adhere to a “one book” rule in applying the guidelines, it should not be done without recognizing a statutory amendment that lengthens the sentence. The 1987 guidelines provide that if the guidelines sentence is below the statutory minimum, the statutory minimum shall be the guideline sentence. Thus the statutory change, effective while defendant’s crime was still occurring, trumped the guidelines. U.S. v. Behler, 100 F.3d 632 (8th Cir. 1996).
8th Circuit requires supervised release term even though defendant should have been released earlier. (580) Defendant was originally sentenced to 120 months’ imprisonment. Pursuant to a clarifying guideline amendment, he successfully reduced his guidelines range to 27‑33 months, with a supervised release range of two to three years. Because he had already served 46 months in prison, he requested that no supervised release be imposed, arguing that the time he had spent imprisoned beyond the guidelines range should qualify as an intensive supervised release. The Eighth Circuit ruled that supervised release was required even though defendant had already served a term of imprisonment that exceeded his guidelines range. Defendant was convicted of a Class C felony, and therefore under § 5D1.2(a)(2) the court was required to impose a supervised release term of at least two years. The court rejected cases from other circuits suggesting that prison time served in excess of a defendant’s revised sentence can be credited against the defendant’s term of supervised release. U.S. v. Douglas, 88 F.3d 533 (8th Cir. 1996).
8th Circuit holds that change in venue did not affect terms of supervised release. (580) In 1994, jurisdiction over defendant’s supervised release was transferred from a district court in the Fifth Circuit to a district court in the Eighth Circuit. When he violated the supervised release terms, the new district court revoked the supervised release and imposed a new term of imprisonment followed by supervised release. Defendant argued that such “stacking” of supervised release terms was not permitted in the Fifth Circuit, and that the terms of conditions of his supervised release were improperly modified when he was transferred to a jurisdiction that permitted “stacking.” The Eighth Circuit held that the change of venue did not affect the terms of defendant’s release. Those terms were clearly set out by the first district court in a document called “Standard Conditions of Supervision.” The venue affected only what happened if he violated these conditions. U.S. v. Evans, 87 F.3d 1009 (8th Cir. 1996).
8th Circuit holds that career offender amendment 506 is invalid. (580) A career offender sentence is based on the “offense statutory maximum.” Until recently, courts addressing the issue have held that where a statute (such as 21 U.S.C. § 841), provides for an enhanced penalty based on a defendant’s criminal record, the “offense statutory maximum” is the enhanced statutory maximum. In Amendment 506, the Sentencing Commission defined “offense statutory maximum” as the unenhanced maximum sentence. The Eighth Circuit, agreeing with the Seventh and Tenth Circuits, and disagreeing with the First and Ninth Circuits, held that the amendment was inconsistent with 28 U.S.C. § 994(h), and thus invalid. Section 994(h) requires a sentence “at or near the maximum term authorized for categories of defendants” who have two convictions that are either drug offenses of crimes of violence. The language is unambiguous. The category is repeat offenders. Moreover, the Commission’s interpretation is implausible because it effectively nullifies the criminal history penalties carefully enacted in statutes like § 841. U.S. v. Fountain, 83 F.3d 946 (8th Cir. 1996).
8th Circuit approves supervised release in addition to statutory maximum sentence. (580) Defendant pled guilty to using a firearm in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c) and received the maximum 60-month term of imprisonment. He contended that any term of supervised release in excess of the maximum five-year term was illegal because section 924(c) did not provide for supervised release. The 8th Circuit held defendant’s two-year supervised release term was within the three-year term authorized by 18 U.S.C. § 3583(b)(2) and guideline section 5D1.2(b)(2). Section 3583(a) empowers courts to include as a part of the sentence a term of supervised release to be served after imprisonment. Authorizing supervised release as part of the sentence, as opposed to part of the incarceration, implies that the supervised release is to be imposed in addition to any incarceration authorized by a particular substantive statute. U.S. v. Watkins, 14 F.3d 414 (8th Cir. 1994).
8th Circuit vacates plea for failure to advise of mandatory term of supervised release. (580) The government argued that the district court’s failure to advise defendant about the mandatory term of supervised release was harmless error under Rule 11(h). The 8th Circuit disagreed. The plain language of Rule 11(c) indicates that the court must tell the defendant not only of the applicability of a term of supervised release, but of that term’s effect. The district court advised defendant that he faced a maximum prison term of five years. Thus, on its face, defendant’s sentence of fifteen months and three years supervised release did not exceed the statutory penalty of which he was advised. However, if his supervised release was revoked, defendant could serve up to two more years in prison, without credit for time served post-release. Thus, the worst case scenario would involve a total of 75 months, exceeding the 60-month maximum the court advised defendant. Thus, the error was not harmless. U.S. v. Osment, 13 F.3d 1240 (8th Cir. 1994).
8th Circuit upholds supervised release for conspiracy that continued after effective date of 18 U.S.C. § 3583(a). (580) Defendant argued that the district court lacked authority to sentence her to supervised release because at the time she committed the crime, 21 U.S.C. section 846 made no provision for supervised release. The 8th Circuit held that supervised release was authorized because the conspiracy continued after the effective date of 18 U.S.C. section 3583(a), which allows a term of supervised release after imprisonment. U.S. v. Wagner, 999 F.2d 312 (8th Cir. 1993).
8th Circuit grants relief from illegal term of supervised relief despite procedural default. (580) In a §2255 motion, defendant argued that his four-year term of supervised release exceeded the maximum authorized by law. The 5th Circuit agreed. Defendant was convicted of violating section 21 U.S.C. section 841(d), which is a Class C felony. Unless a statute authorizes a longer term, the authorized supervised release term for a Class C felony is not more than three years. Although defendant had procedurally defaulted this claim, §2255 makes relief available if the sentence was in excess of the maximum authorized by law. Relief should be granted to avoid “manifest injustice.” U.S. v. Wilson, 997 F.2d 429 (8th Cir. 1993).
8th Circuit rejects term of inactive supervised release. (580) The district court imposed a five year term of supervised release on one defendant, which consisted of one year of “active” supervised release and four years of “inactive” supervised release. A second defendant received three years of active supervised release and two years of inactive supervised release. The period of inactive supervised release was for the purpose of administering and monitoring the repayment of defendants’ restitution obligations. The 8th Circuit reversed. First, the maximum term of supervised release authorized for their equity skimming offense was one year. The district court did not have authority to impose consecutive terms of supervised release; terms of supervised release on multiple convictions are to run concurrently. In addition, there was no authority supporting imposition of a term of “inactive” supervised release. The level of intensity of the supervision of a defendant on supervised release is a function of the supervising probation officer’s discretion. U.S. v. Ravoy, 994 F.2d 1332 (8th Cir. 1993).
8th Circuit holds that court’s warning at sentencing provided defendant with adequate notice of condition of supervised release. (580) The district court failed to direct the probation officer to provide defendant with a written statement of the conditions of his supervised release, as required by 18 U.S.C. section 3583. The only notice defendant received of the conditions of his supervised release was the oral statement the district judge made at sentencing. The 8th Circuit held that this provided defendant with adequate notice of the requirement that he not commit any additional crimes while on supervised release. The court refused to hold that a failure to provide a written statement of the conditions of supervised release automatically prevents a sentencing court from revoking supervised release based on a violation of one of the conditions. Here, defendant received adequate notice at his sentencing hearing that the court expected him to remain law-abiding during his term of supervised release. At his revocation hearing, defendant acknowledged that he had failed in his “promise” to “stay clean,” and then explained why he committed the new crimes. U.S. v. Felix, 994 F.2d 550 (8th Cir. 1993).
8th Circuit rejects consecutive terms of supervised release. (580) The 8th Circuit held that it was impermissible under 18 U.S.C. section 3624(e) to sentence defendant to consecutive terms of supervised release. The statute unambiguously states that terms of supervised release on multiple convictions are to run concurrently. U.S. v. Gullickson, 981 F.2d 344 (8th Cir. 1993).
8th Circuit rejects warrantless searches for alcohol and drugs as condition of supervised release. (580) As a condition of defendant’s supervised release, defendant was prohibited from purchasing or using any alcohol or narcotic, was subject to testing for alcohol or drugs, and was subject to warrantless searches to determine the presence of drugs or alcohol. The 8th Circuit rejected the total prohibition of all alcohol and the warrantless searches for alcohol and drugs, finding these terms were not reasonably related to the goals of rehabilitation and protection. Defendant pled guilty to wire fraud. There was no evidence indicating that he suffered from alcoholism or that the use of alcohol contributed to the commission of his crime. There was no finding that defendant was in need of substance abuse rehabilitation or that he used his fraud proceeds for drug activity. U.S. v. Prendergast, 979 F.2d 1289 (8th Cir. 1992).
8th Circuit affirms that 18 U.S.C. section 3553(b) authorizes supervised release departures. (580) The 8th Circuit rejected defendant’s argument that 18 U.S.C. section 3553(b) which allows departures from the sentencing guidelines, does not apply to terms of supervised release. The language in the statute is broad enough to cover departures from terms of supervised release. However, the supervised release terms provided for in the guidelines are identical to the statutory maximums in 18 U.S.C. section 3583(b). The district court could not impose a five year term of supervised release because it exceeded the statutory maximum of three years. The district court could, however, impose consecutive terms of supervised release. U.S. v. Saunders, 957 F.2d 1488 (8th Cir. 1992).
8th Circuit affirms 10-year term of supervised release as provided in plea agreement. (580) Defendant’s plea agreement provided for a downward departure in prison term, but a 10-year period of supervised release, rather than the three to five years called for in guideline section 5D1.2(a). The 8th Circuit rejected defendant’s claim that the 10-year term of supervised release was illegal. The three to five year term in section 5D1.2(a) should be construed as a guideline range, subject to the same departures that are applicable to the Chapter 5C imprisonment ranges. U.S. v. LeMay, 952 F.2d 995 (8th Cir. 1991).
8th Circuit upholds employment restrictions on supervised release term. (580) Defendant pled guilty to failing to surrender to serve his sentence for fraud arising from his sale of vending machines. The 8th Circuit upheld as a condition of supervised release the requirement that defendant be employed in a business which did not require travel or involve the sale of vending machines. Guideline section 5F1.5 provides that a court may impose a condition of supervised release prohibiting defendant from engaging in a specified occupation if the restriction is reasonably related to the offense and reasonably necessary to protect the public. The court did not err in failing to consider his age in requiring that defendant be employed, since the two-year term of supervised release ran concurrently to a five-year period of probation during which he was already required to be legitimately employed. U.S. v. Burnett, 952 F.2d 187 (8th Cir. 1991).
8th Circuit upholds warrantless searches for drugs and alcohol as condition of supervised release. (580) The 8th Circuit rejected defendant’s contention that it was improper to subject him, as a condition of supervised release, to warrantless searches for drugs and alcohol. The district court may order conditions of supervised release which are reasonably related to the nature and circumstances of the offense and history and characteristics of the defendant. U.S. v. Sharp, 931 F.2d 1310 (8th Cir. 1991).
9th Circuit upholds supervised release term for alien who would be deported. (580) Defendant was sentenced to probation on his conviction for illegal reentry after deportation, in violation of 8 U.S.C. § 1326. Defendant violated his probation by illegally reentering the U.S. The district court sentenced defendant to prison, to be followed by a one-year term of supervised release. Under § 5D1.1, a court should not impose a term of supervised release on an alien who will be deported unless supervised release will provide an added measure of deterrence or protection of the public. The Ninth Circuit held that defendant’s repeated illegal reentries to the U.S. and his violation of a promise to the district court not to illegally reenter supported the imposition of a term of supervised release. U.S. v. Castro-Verdugo, 750 F.3d 1065 (9th Cir. 2014).
9th Circuit reverses insufficient reasons for denying supervised release termination. (580) Defendant pleaded guilty to mail fraud and was sentenced to 51 months’ imprisonment, to be followed by three years’ supervised release. After serving two years of supervised release, defendant filed a motion for early termination of his supervised release. The district court denied the motion without holding a hearing, finding that defendant had not demonstrated that supervised release imposed any undue hardship. The Ninth Circuit vacated on the ground that the district court had failed to articulate sufficient reasons for denying defendant’s request. U.S. v. Emmett, 749 F.3d 817 (9th Cir. 2014).
9th Circuit allows supervised release conditions to be modified without change in circumstances. (580) Defendant pleaded guilty to assault with intent to kidnap based on evidence that he had assaulted and raped a disabled female. After he served his sentence and begun his supervised release term, the Probation Office and the government moved to modify defendant’s conditions of supervised release to require defendant to participate in a sexual deviancy evaluation program. The district court granted the motion, and defendant appealed. The Ninth Circuit held that a district court has authority under 18 U.S.C. § 3583(e) to modify a defendant’s conditions of supervised release even without a change in the defendant’s circumstances. U.S. v. Bainbridge, 746 F.3d 943 (9th Cir. 2014).
9th Circuit upholds modification of supervised release to include sexual deviancy evaluation. (580) Defendant sexually assaulted a disabled female and was convicted of assault with intent to kidnap. When he finished his prison term and began supervised release, the district court altered the conditions of supervised release to require defendant to participate in a sexual deviancy evaluation. The Ninth Circuit held that the district court did not abuse its discretion in imposing the new supervised release condition because the facts admitted in the plea agreement showed that defendant engaged in a sexual assault on the victim and posed a threat to society. U.S. v. Bainbridge, 746 F.3d 943 (9th Cir. 2014).
9th Circuit finds Nevada conspiracy to commit robbery is a violent felony. (540) Under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), a defendant convicted of being a felon in possession of a firearm who has three prior convictions for a “violent felony” is subject to a 15-year mandatory minimum sentence. A “violent felony” is defined in part to mean a felony that “involves conduct that presents a serious potential risk of physical injury to another.” Defendant, convicted of being a felon in possession of a firearm, had a prior conviction under Nevada Revised Statute §§ 199.480 and 200.380 for conspiracy to commit robbery, a crime defined in part as an agreement to unlawfully take property from another by means of force or violence or fear of injury. The Ninth Circuit held that conspiracy to commit robbery is a “violent felony” under the ACCA. Two judges concurred but wrote separately to question whether conspiracy to commit a violent felony should always be considered a violent felony. U.S. v. Chandler, 743 F.3d 648 (9th Cir. 2014).
9th Circuit holds that Nevada second-degree kidnapping is a violent felony. (540) The Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), requires a 15-year mandatory minimum for a defendant convicted of being a felon in possession of a firearm who has three prior convictions for a “violent felony.” The ACCA defines a “violent felony” in part to be a felony that “involves conduct that presents a serious potential risk of physical injury to another.” Defendant was convicted of being a felon in possession of a firearm and had a prior conviction under Nevada Revised Statutes § 200.310 and 200.330 for second-degree kidnapping. Nevada defines that offense as willfully and without authority kidnapping another; it does not require use of force. The Ninth Circuit held that Nevada second-degree kidnapping is a “violent felony.” U.S. v. Chandler, 743 F.3d 648 (9th Cir. 2014).
9th Circuit allows court to order restitution even if not a supervised release condition. (580) Defendant pleaded guilty to wire fraud. At sentencing, the district court ordered defendant to pay restitution. The parties believed that the restitution owed would be paid out of the forfeiture of defendant’s assets. The sale of the assets did not cover the amount of restitution ordered, however, and the district court then ordered defendant to pay the remainder. The Ninth Circuit held that because restitution was not made a condition of supervised release, defendant could not challenge the restitution order under 18 U.S.C. § 3583(e)(2), which allows a court to modify the conditions of supervised release. The court of appeals held, however, that the district court had the authority to enforce the order of restitution and that authority allowed the district court to set the amount of restitution. U.S. v. Carter, 742 F.3d 440 (9th Cir. 2014).
9th Circuit upholds lifetime supervised release imposed after supervised release revocation. (580) Defendant was convicted of failing to register as a sex offender, in violation of 18 U.S.C. § 2250(a). At sentencing, the district court imposed a lifetime supervised release term, among other penalties. When released from prison, defendant violated his supervised release conditions. The district court sentenced defendant to a prison term and a new term of lifetime supervised release. The Ninth Circuit held that under 18 U.S.C. § 3583(h), a district court may impose a lifetime term of supervised release following revocation of supervised release. The court rejected the argument that § 3583(h) does not allow a lifetime term of supervised release on revocation of supervised release even though the statute requires a term of imprisonment to be subtracted the term of supervised release imposed on revocation. U.S. v. Crowder, 738 F.3d 1103 (9th Cir. 2013).
9th Circuit reverses penile plethysmograph testing as condition of supervised release. (580) As a condition of supervised release at defendant’s sentencing for receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2), the district court ordered defendant to undergo “psychological testing.” On appeal, defendant argued that he could not be ordered to undergo penile plethysmograph testing as part of a sex-offender treatment program. The Ninth Circuit agreed, holding that penile plethysmograph testing could not be required as a condition of defendant’s supervised release, because the district court did not make any findings supporting the need for it. U.S. v. Roybal, 737 F.3d 621 (9th Cir. 2013).
9th Circuit says supervised release does not begin during home confinement. (580) Defendant was sentenced to a prison term, to be followed by five years of supervised release. The Bureau of Prisons allowed defendant to serve the conclusion of his prison sentence in home confinement. More than five years after he was released to home confinement, but less than five years after he completed home confinement, defendant violated the terms of his supervised release. The Ninth Circuit held that supervised release does not begin when a defendant is released into home confinement and therefore that defendant remained on supervised release when he violated its terms. U.S. v. Earl, 729 F.3d 1064 (9th Cir. 2013).
9th Circuit requires payment of financial obligations as condition of supervised release. (580) As a condition of supervised release, the district court ordered defendant to apply all funds he received from income tax refunds, lottery winnings, inheritance, or judgments to his court-ordered financial obligations, including restitution. The Ninth Circuit held that the district court did not err in imposing this requirement as a condition of supervised release. U.S. v. Moschella, 727 F.3d 888 (9th Cir. 2013).
9th Circuit rules that six months in state custody tolls supervised release term. (580) Under 18 U.S.C. § 3624(e), a term of supervised release is tolled during any period of imprisonment longer than 30 days in connection with a federal, state, or local crime. While on supervised release, defendant served six months in state custody. The Ninth Circuit held that defendant’s term of supervised release was tolled while defendant was in state custody. It rejected defendant’s argument that 18 U.S.C. § 3583(i) requires the government to file a revocation petition within the period of the original term of supervised release (that is, without the tolling caused by state incarceration) to toll a period of supervised release. U.S. v. Ahmadzai, 723 F.3d 1089 (9th Cir. 2013).
9th Circuit finds no error in failure to follow future amendment to Guidelines. (580) Defendant was convicted of illegal reentry after deportation, in violation of 8 U.S.C. § 1326. At sentencing, the district court imposed a term of supervised release. A month later, the guidelines were amended to state that a court ordinarily should not impose a supervised release term when the defendant is likely to be deported after serving his sentence. The Ninth Circuit held that district courts are not required to consider a future amendment to the guidelines unless the amendment has been given retroactive effect by the Sentencing Commission. U.S. v. Rojas-Pedroza, 716 F.3d 1253 (9th Cir. 2013).
9th Circuit says blood sample need not be returned at end of supervised release. (580) As a condition of supervised release, defendant was required to give a blood sample for analysis of his DNA, so that the government could include his DNA profile in its CODIS database. When defendant completed his term of supervised release, he filed a motion under Federal Rule of Criminal Procedure 41(g) seeking return of his blood sample. Defendant did not seek to delete his DNA from the CODIS database, only the return of his blood sample. The Ninth Circuit held that the government has an interest in maintaining the blood samples to ensure accurate matches to DNA found at crime scenes. U.S. v. Kriesel, 720 F.3d 1137 (9th Cir. 2013).
9th Circuit upholds supervised release for illegal reentry. (580) Under § 5D1.1, a district court ordinarily should not impose a supervised release term if supervised release is not required by statute and the defendant is likely to be deported after completion of his sentence. Application Note 5 states, however, that supervised release can be imposed in those circumstances if the court determines that supervised release would provide an added measure of deterrence and protection. The Ninth Circuit held that imposition of a term of supervised release was not substantively unreasonable and that a district court did not err in imposing supervised release on a defendant convicted under 8 U.S.C. § 1326 because the defendant had a family in the U.S. U.S. v. Valdavinos-Torres, 704 F.3d 679 (9th Cir. 2012).
9th Circuit upholds condition barring “frequenting” places where drugs are used or sold. (580) At sentencing for defendant’s fraud convictions, the district court imposed a three-year term of supervised release with the standard condition prohibiting defendant from “frequenting places” where controlled substances are illegally sold, used, or distributed.” Reviewing for plain error, the Ninth Circuit held that the prohibition on “frequenting places” where drugs were sold or used barred defendant from knowingly going to a specific place where drugs were used or sold. So interpreted, the court found no plain error in the imposition of the condition. U.S. v. Phillips, 704 F.3d 754 (9th Cir. 2012).
9th Circuit strikes supervised release condition barring contact with own children. (580) Defendant pleaded guilty to attempted sexual abuse, in violation of 18 U.S.C. §§ 1153(a) and 2242(2)(B). At sentencing, the district court, without making any supporting findings, imposed a condition of supervised release that barred defendant, without prior approval from Probation, from residing in any home of any person under the age of 18, be in the company of any person under 18, or date or socialize with any person who children under the age of 18. The Ninth Circuit held that barring defendant from residing with or being in the company of his own children or socializing with his fiancée, who had minor children, violated defendant’s fundamental right to familial association. U.S. v. Wolf Child, 699 F.3d 1082 (9th Cir. 2012).
9th Circuit upholds supervised release condition requiring sexual offender assessment. (580) Defendant pleaded guilty possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g). In 1980, defendant had been convicted of twice raping a 19-year-old woman and received a nine-year sentence. In 1990, defendant had been convicted of raping a 14-year-old girl at gunpoint and received a 13-year sentence. Defendant argued that he underwent sexual offense treatment after these convictions, but the Probation Office was unable to verify that claim. At his sentencing for violating §922(g), the district court imposed a five-year term of supervised release with the special condition that defendant undergo a sexual offender assessment. The court did not order that defendant undergo sexual offender treatment. The Ninth Circuit held that the district court had not abused its discretion in requiring defendant to undergo a sexual offender assessment as a condition of supervised release. U.S. v. Johnson, 697 F.3d 1249 (9th Cir. 2012).
9th Circuit enforces appeal waiver to dismiss supervised release claim. (580) Defendant pleaded guilty pursuant to a plea agreement in which he waived his right to appeal any sentence within or below the guidelines range. The district court imposed a sentence below the range. The court also ordered defendant to undergo drug testing as a condition of supervised release, as required by 18 U.S.C. § 3583(d). Defendant sought to appeal the supervised release condition. The Ninth Circuit held that the appeal waiver was enforceable and required dismissal of defendant’s appeal. U.S. v. Mendez-Gonzalez, 697 F.3d 1101 (9th Cir. 2012).
9th Circuit says supervised release not tolled by detention pending civil commitment hearing. (580) While on supervised release for distributing visual depictions of minors engaged in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(2), defendant violated the conditions of his release. The district court sentenced him to eight months in prison and 22 months of supervised release. When defendant completed the prison term, he was detained under 18 U.S.C. § 4248(a), which allows for the detention of a person pending a determination whether he should be civilly committed as a “sexually dangerous person.” More than 22 months later, the district court found that the government had not shown that defendant was a “sexually dangerous person,” and he was released from detention. The Ninth Circuit held that defendant’s detention pending a civil commitment hearing did not toll his supervised release term and that defendant’s supervised release term expired while he was in detention. U.S. v. Turner, 689 F.3d 1117 (9th Cir. 2012).
9th Circuit vacates release condition barring residence close to places where children are found. (580) When imposing sentence on defendant for possession of child pornography he had obtained over the Internet, the district court imposed a lifetime term of supervised release. As a condition of that term, the court ordered defendant not to reside within 2,000 feet of school yards, parks, public swimming pools, video arcades, and other locations where children may gather. The Ninth Circuit noted that the supervised release condition effectively prevented defendant from living in any urban area and held that the district court had failed to provide sufficient justification for such a restrictive condition. The court did not decide whether the condition was substantively unreasonable. U.S. v. Collins, 684 F.3d 873 (9th Cir. 2012).
9th Circuit allows registration as sex offender as supervised release condition. (580) Defendant pleaded guilty to knowingly taking or receiving obscene material over a computer, in violation of 18 U.S.C. § 1462. At the plea colloquy, defendant admitted that he had downloaded child pornography. As a condition of supervised release, the district court ordered defendant to register as a sex offender. The Ninth Circuit held that defendant’s admissions at the plea colloquy were sufficient to support the district court’s finding that defendant was a sex offender, and that, in any event, the district court could impose sex registration as a discretionary condition of supervised release. U.S. v. Becker, 682 F.3d 1210 (9th Cir. 2012).
9th Circuit says supervised release revocation may not rest on violations of prior supervised release term. (580) While on supervised release after pleading guilty to bank embezzlement, defendant violated the conditions of supervised release and was sentenced to imprisonment, to be followed by another term of supervised release. On the day before that supervised release term was to begin, a probation officer filed a petition to revoke defendant’s term of supervised release based on conduct that occurred while she was on supervised release after her first term of imprisonment. A divided Ninth Circuit panel held that the district court lacked jurisdiction to revoke defendant’s supervised release based on violations of the first term of supervised release. U.S. v. Wing, 682 F.3d 861 (9th Cir. 2012).
9th Circuit finds no procedural error in imposition of lifetime term of supervised release. (580) For the offense of child pornography, the Sentencing Guidelines authorize a supervised release term of no less than five years and recommend a lifetime term. At defendant’s sentencing for possession of child pornography, the district court imposed a lifetime term of supervised release. In imposing the lifetime term, the count discussed the nature and characteristics of defendant’s offense. The Ninth Circuit held that the district court had not committed procedural error by failing to explain its reasons for imposing a lifetime term of supervised release. U.S. v. Collins, 684 F.3d 873 (9th Cir. 2012).
9th Circuit rejects clear-and-convincing standard for ban on residing close to children. (580) Defendant was convicted of possession of child pornography. As a condition of defendant’s lifetime term of supervised release, the district court barred defendant from residing within 2,000 feet of school yards, parks, public swimming pools, or other places where children may gather. Defendant argued that the district court should not have imposed this condition unless it found by clear and convincing evidence that the condition was justified. The Ninth Circuit held that the clear and convincing standard did not apply to conditions of supervised release. U.S. v. Collins, 684 F.3d 873 (9th Cir. 2012).
9th Circuit says summons need not be signed by judge to authorize post-expiration revocation of supervised release. (580) During the final month of defendant’s supervised release term, he was arrested for drunk driving. Four days before the end of defendant’s supervised release, his probation officer filed a petition to revoke supervised release, and the district court signed the petition and ordered that a summons be issued. A district court clerk signed and issued the summons; the district court judge did not personally sign the summons. Defendant argued that issuance of the summons did not allow the district court to revoke his supervised release after the term had expired because the summons had not been signed by the district judge. The Ninth Circuit held that requiring a judge to sign a summons for a defendant who has violated supervised release “would exalt form over substance” and is not necessary to allow a court to rule on defendant’s supervised release violation after his term of supervised release had expired. U.S. v. Vallee, 677 F.3d 1263 (9th Cir. 2012).
9th Circuit requires juvenile to register as sex offender under SORNA. (580) Juveniles pleaded “true” to committing aggravated sexual abuse with children. As a condition of probation or supervised release, the juveniles were ordered to register as sex offenders under the federal Sex Offender Registration and Notification Act. The Ninth Circuit held that the SORNA registration requirement did not impermissibly conflict with the confidentiality requirement of the Federal Juvenile Delinquency Act. The court also rejected challenges to the registration requirement under the Equal Protection Clause, the Eighth Amendment prohibition on cruel and unusual punishment, the Self-Incrimination Clause, and the Due Process Clause. U.S. v. Juvenile Male, 670 F.3d 999 (9th Cir. 2012).
9th Circuit strikes down residency limitation for sex offender. (580) Defendant was convicted of traveling to a foreign country and engaging in illicit sexual conduct, in violation of 18 U.S.C. § 2423(c). At sentencing, the district court imposed a condition of supervised release that barred defendant from residing within 2,000 feet of school yards, parks, public swimming pools, playgrounds, youth centers, video arcade facilities, or other places primarily used by minors. The Ninth Circuit held that the district court erred in imposing this condition because it did not explain the condition and there was no explanation in the record. The court remanded to allow the district court to explain or reconsider the restriction. U.S. v. Rudd, 662 F.3d 1257 (9th Cir. 2011).
9th Circuit says ban on using marijuana does not violate religious liberty statute. (580) As a condition of supervised release for his conviction for manufacturing methamphetamine, the district court ordered defendant not to possess or use any controlled substance. While on supervised release, defendant joined a church that views the use of marijuana as a “religious sacrament” that brings church members closer to God. On that basis, defendant sought an exemption from his supervised release condition under the Religious Freedom and Restoration Act (RFRA). The Ninth Circuit held that because the government has a compelling interest in denying a convicted drug felon a religious exemption that would permit him to use drugs while serving his term of supervised release, the supervised release condition did not violate defendant’s RFRA rights. U.S. v. Laffley, 656 F.3d 936 (9th Cir. 2011).
9th Circuit finds defendant received adequate notice of supervised release condition. (580) Defendant pleaded guilty to possession of child pornography pursuant to a plea agreement stating the district court could impose a condition of supervised release requiring the installation of monitoring software on defendant’s computer. At sentencing, the district court informed the parties that it was considering imposing a condition of supervised release requiring installation of monitoring software on defendant’s computer. Defendant argued against imposition of that condition, claiming that less restrictive alternatives existed. The district court imposed the condition. On appeal, the Ninth Circuit held that defendant received adequate notice that the court was considering imposing the computer-monitoring condition. The court noted that defendant apparently anticipated that the court would impose the condition because he was prepared at sentencing to argue against it. U.S. v. Quinzon, 643 F.3d 1266 (9th Cir. 2011).
9th Circuit allows computer monitoring supervised release condition in child porn case. (580) Defendant pleaded guilty to possession of child pornography. At sentencing, the district court imposed a condition of supervised release requiring the installation of a monitoring device on defendant’s computer. Although such devices may record all activity on a computer, even when it is not connected to the Internet, the Ninth Circuit interpreted the condition to allow only monitoring of defendant’s computer when it was connected to the Internet. So construed, the court upheld the condition as reasonably related to defendant’s offense. U.S. v. Quinzon, 643 F.3d 1266 (9th Cir. 2011).
9th Circuit upholds 15-year supervised release term in child porn case. (580) Defendant was convicted of transporting child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). The district court departed downward from the guidelines range of 135 to 168 months and imposed the mandatory minimum sentence of 60 months, to be followed by 15 years of supervised release. To support the 15-year term of supervised release, the district court relied on the seriousness of the offense, defendant’s addiction to child pornography and illegal substances, and the fact that defendant had twice violated the conditions of his pretrial release. The Ninth Circuit held that the district court had not abused its discretion in imposing a 15-year term of supervised release. U.S. v. Kennedy, 643 F.3d 1251 (9th Cir. 2011).
9th Circuit says probation officer’s sentencing recommendation need not be disclosed to parties. (580) Under Federal Rule of Criminal Procedure 32(e)(3), a court may direct a probation officer not to disclose the officer’s sentencing recommendation to the parties. District of Idaho Local Rule 32.1 provides that probation officers may not disclose their sentencing recommendations to the parties without the court’s express authorization. Prior to defendant’s supervised release violation hearing, the probation office submitted a sentencing recommendation to the court, and the court denied defendant’s request for access to the recommendation. The Ninth Circuit held that Rule 32(3)(3) applies to supervised release violation hearings and that neither that rule nor Idaho Local Rule 32.1 violates equal protection. U.S. v. Whitlock, 639 F.3d 935 (9th Cir. 2011).
9th Circuit says lifetime supervised release term for child porn possession was not disproportionate. (580) At defendant’s sentencing for possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B), the district court imposed a lifetime term of supervised release. On appeal, defendant argued that a lifetime term of supervised release was disproportionate to the offense of possession of child pornography. The Ninth Circuit found “plausible reasons” to question whether a lifetime term of supervised release is too severe for a possession offense, but held that the lifetime supervise release was not substantively unreasonable. U.S. v. Apodaca, 641 F.3d 1077 (9th Cir. 2011).
9th Circuit upholds supervised release condition barring contact with minors. (580) Defendant was convicted of possession of child pornography. At sentencing, the district court ordered defendant, as a condition of supervised release, not to associate or have any contact with a person under the age of 18 except in the presence of a parent or guardian who has been notified of the defendant’s conviction for possession of child porn. The court excluded from the condition waiters, cashiers, and other persons whom the defendant would contact in the course of obtaining commercial services. The Ninth Circuit held that the condition did not unconstitutionally prevent defendant from having contact with any child of his own because he would be the parent of such a child. U.S. v. Apodaca, 641 F.3d 1077 (9th Cir. 2011).
9th Circuit rules life supervised release for sex offender is not cruel and unusual. (580) Defendant pleaded guilty to receipt of child pornography, in violation of 18 U.S.C. § 2252A(a)(2). When arrested, defendant admitted to having fantasies about the rape of young girls. He had a prior state conviction for sexual assault for an incident involving girls aged nine and 13. His supervised release term on this offense was revoked when he skipped counseling sessions and obtained employment that brought him into contact with children. At his § 2252A sentencing, the district court imposed a mandatory minimum 15-year sentence and a supervised release term of life. The court concluded that a life supervised release term was necessary to protect the community. The Ninth Circuit held that the lifetime supervised release term did not constitute cruel and unusual punishment, in violation of the Eighth Amendment and was not substantively unreasonable. U.S. v. Williams, 636 F.3d 1229 (9th Cir. 2011).
9th Circuit says contact with state authorities did not restart fugitive’s supervised release term. (580) Defendant began a four-year term of supervised release in September 1993. In 1995, he violated the terms of his supervised release and became a fugitive. Between 1996 and 2007, state authorities in Minnesota arrested him 11 times. In 2009, he was arrested by federal authorities for violating his supervised release. Defendant conceded that when he became a fugitive, his supervised release term ceased to run, but he argued that it began to run again when Minnesota state authorities arrested him and that it had therefore expired when he was arrested in 2009. The Ninth Circuit held that because there was no evidence that federal authorities knew of his presence in Minnesota, his arrest by state authorities there did not restart his term of supervised release. U.S. v. Watson, 623 F.3d 929 (9th Cir. 2011).
9th Circuit rejects supervised release condition barring association with persons who associate with gang members. (580) At defendant’s sentencing on drug-trafficking offenses, the district court ordered defendant as a condition of supervised release not to associate with anyone known to him to be a member of a specific gang or who associated with a gang member or who wears any clothing showing an affiliation with that gang. The Ninth Circuit held that the district court properly barred defendant from wearing clothing showing his affiliation with a gang, but that the court exceeded its authority by prohibiting defendant from associating with anyone who associates with gang members. U.S. v. Johnson, 626 F.3d 1085 (9th Cir. 2010).
9th Circuit holds that contempt based on escape carries three-year supervised release term. (580) Under 18 U.S.C. § 3583, when a district court finds that a defendant has violated the terms of supervised release, the maximum sentence depends on the seriousness of the underlying offense. Defendant violated a term of supervised release imposed after his conviction for contempt, in violation of 18 U.S.C. § 401. Because contempt does not have a statutory maximum, the district court analogized defendant’s conduct to escape and found that it was a Class D felony subject to a three-year maximum term of supervised release. The Ninth Circuit reaffirmed that the severity of contempt violations turns on the most analogous underlying offense, and it held that defendant’s contempt offense was most analogous to escape. Because the maximum sentence for escape is five years, the court held that it was a Class D felony. U.S. v. Broussard, 611 F.3d 1069 (9th Cir. 2010).
9th Circuit upholds supervised release condition barring associating with known felons. (580) As a condition of supervised release for defendant’s conviction on drug-trafficking offenses, the district court barred him from “associating” with known felons. When defendant began his supervised release, his probation officer told him that he was forbidden to have “any type” of contact with known felons. Defendant argued that this condition was unconstitutionally vague because it failed to inform him that telephone and e-mail communications were forbidden. The Ninth Circuit held that the ordinary meaning of “associate,” together with the instructions from defendant’s probation officer, adequately put him on notice that telephone and e-mail contacts with felons were forbidden. U.S. v. King, 608 F.3d 1122 (9th Cir. 2010).
9th Circuit permits modification of supervised release condition at revocation hearing. (580) While defendant was serving his supervised release term, his probation officer alleged that defendant had violated the conditions of his supervised release. At a hearing on the allegations, the district court modified defendant’s conditions to include a provision allowing a search of defendant’s computers. Defendant argued that the district court violated due process by amending his supervised release conditions without holding a hearing. The Ninth Circuit held that at a supervised release revocation hearing, a district court may modify conditions of supervised release without taking new evidence or ruling on the alleged violations. U.S. v. King, 608 F.3d 1122 (9th Cir. 2010).
9th Circuit allows restitution as condition of supervised release for tax offense. (580) Defendant pleaded guilty to assisting in the preparation of fraudulent tax returns, in violation of 26 U.S.C. § 7206(2). At sentencing, the district court ordered defendant to pay restitution to the IRS as a condition of supervised release. On appeal, defendant argued that the district court lacked authority to order restitution as a condition of supervised release for a defendant convicted of a tax offense defined in Title 26. The Ninth Circuit held that the district court properly ordered restitution as a condition of supervised release under 18 U.S.C. § 3583(d), which allows a court to order as a condition of supervised release any condition that may be ordered as a condition of probation. U.S. v. Batson, 608 F.3d 630 (9th Cir. 2010).
9th Circuit says child porn defendant can be barred from possessing camera. (580) Defendant pleaded guilty to receiving child pornography based on his possession of hundreds of child pornography images, including sadomasochistic images of prepubescent children. The district court imposed a condition of supervised release that barred him from possessing a camera phone or electronic device that could be used for covert photography. On appeal, defendant challenged this condition on the ground that photography played no role in his offense. The Ninth Circuit upheld the condition because the large number of images on defendant’s computer showed that he might engage in covert photography in the future. U.S. v. Blinkinsop, 606 F.3d 1110 (9th Cir. 2010).
9th Circuit finds supervised release condition barring loitering near children overbroad. (580) Defendant downloaded hundreds of images of child pornography, including sadomasochistic images of prepubescent children. At defendant’s sentencing for receiving child pornography, the district court imposed a condition of supervised release prohibiting defendant from going to or loitering “near school yards, parks, play grounds, arcades, or other places primarily used by children under the age of 18.” The Ninth Circuit noted that the condition addressed defendant’s conduct, promoted his rehabilitation, and protected the public, but held that it was overbroad because it prevented defendant from attending school events involving his own children. U.S. v. Blinkinsop, 606 F.3d 1110 (9th Cir. 2010).
9th Circuit finds bar on associating with misdemeanants to be overbroad. (580) Defendant violated the conditions of her supervised release on a drug-trafficking conviction by associating with a known felon. The district court sentenced defendant to prison and a new term of supervised release. As a condition of supervised release, the district court ordered defendant not to have regular contact with anyone having a misdemeanor conviction without the permission of her probation officer. The Ninth Circuit held that the condition should be construed to bar only knowing contact with persons who have prior convictions. So construed, the court held that the condition was still overbroad because persons who have misdemeanor convictions may not pose any threat to defendant’s rehabilitation. U.S. v. Napulou, 593 F.3d 1041 (9th Cir. 2010).
9th Circuit remands supervised ban on associating with “life partner.” (580) While on supervised release for a drug-trafficking conviction, defendant violated the conditions of her supervised release by associating with a convicted felon. The district court found that defendant had violated the terms of her supervised release and sentenced her to prison and a new term of supervised release. As a condition of the new term of supervised release, the court ordered defendant not to have any contact with the convicted felon who had been involved in the incidents that led to the violation of defendant’s supervised release. Defendant appealed this condition on the ground that it improperly barred her from associating with her “life partner.” The Ninth Circuit held that the district court had failed to provide a sufficient rationale for barring defendant from associating with the convicted felon and remanded for an examination of all the relevant facts. U.S. v. Napulou, 593 F.3d 1041 (9th Cir. 2010).
9th Circuit finds increase in supervised release after new trial was not vindictive. (580) Defendant was convicted of traveling with the intent to engage in a sexual act with a minor, in violation of 18 U.S.C. § 2423(b). The district court imposed a five-year prison term, to be followed by five years’ supervised release. The court of appeals reversed defendant’s conviction. Defendant was again convicted at a retrial. At sentencing, the district court (in the person of a different district court judge) again imposed a five-year prison sentence, but ordered defendant to serve a lifetime term of supervised release. The Ninth Circuit found that the increase in supervised release term was not vindictive in light of the change in district court judges and evidence that defendant posed an ongoing threat to children. U.S. v. Curtin, 588 F.3d 993 (9th Cir. 2009).
9th Circuit upholds supervised release condition barring return to home city. (580) Defendant pleaded guilty to carjacking. The presentence report noted that defendant and his accomplice were part of a San Francisco gang, that at age 19 defendant had already acquired a lengthy criminal record, and that defendant received poor support from his family. At sentencing, the district court imposed a condition of supervised release requiring defendant to stay out of San Francisco unless he obtained his probation officer’s permission. The court explained that if defendant returned to San Francisco, he would fall in with the “the old gang” and commit additional criminal activity. The Ninth Circuit upheld the supervised release condition, although it noted that the district court could have provided additional justification for it. U.S. v. Watson, 582 F.3d 974 (9th Cir. 2009).
9th Circuit upholds appeal waiver after finding challenged supervised release condition lawful. (580) Defendant’s plea agreement stated that he waived his right to appeal “any aspect of [his] sentence.” At defendant’s change-of-plea colloquy, the district court explained that defendant was giving up his right to appeal. At sentencing, the district court imposed a supervised release condition that prevented defendant from entering San Francisco except with his probation officer’s permission. When defense counsel objected to the condition, the district court initially told counsel to appeal, but then noted that defendant had waived his right to appeal. Defendant nevertheless took an appeal to challenge the supervised release condition. The Ninth Circuit noted that a defendant may not waive the right to appeal an illegal sentence. For that reason, it first held that the supervised release condition was lawful and then held that the appeal waiver was valid and dismissed the appeal. U.S. v. Watson, 582 F.3d 974 (9th Cir. 2009).
9th Circuit says failure to give notice of supervised release condition was not plain error. (580) At defendant’s sentencing on carjacking charges, the district court ordered defendant as a condition of supervised release to remain outside of San Francisco. Defense counsel objected to the condition on the ground that it was overbroad and violated defendant’s First Amendment rights. On appeal, defendant argued that he had insufficient notice of the condition. Reviewing for plain error, the Ninth Circuit held that the failure to give notice had not affected defendant’s substantial rights because his attorney had immediately objected, and counsel’s objections raised the same arguments that defendant made on appeal. U.S. v. Watson, 582 F.3d 974 (9th Cir. 2009).
9th Circuit says maximum supervised release term is limited by prior terms of imprisonment. (580) Under 18 U.S.C. § 3583(h), when a district court revokes a defendant’s supervised release, the court may impose a term of supervised release to follow a term of imprisonment, but the supervised release term must be no longer than the statutory maximum term reduced by any term of imprisonment that was imposed for a revocation of supervised release. Defendant was subject to a maximum supervised release term of 36 months. When the district court revoked his supervised release the first time, it imposed a nine-month sentence. After defendant was released from this sentence, the district court again revoked his supervised release and imposed another nine-month sentence. When released, defendant violated his supervised release a third time, and the district court imposed a 24-month sentence to be followed by 12 months’ supervised release. The Ninth Circuit held that under § 3583(h), the district court could not impose a period of supervised release when defendant violated his supervised release the third time because the aggregate time of incarceration imposed (42 months) exceeded the maximum term of supervised release (36 months). U.S. v. Knight, 580 F.3d 933 (9th Cir. 2009).
9th Circuit permits supervised release sentence without reduction for sentence at prior revocations. (580) Under 18 U.S.C. § 3583(e)(3), when a court revokes a term of supervised release, it may sentence a defendant to prison for all or part of the supervised release term without credit for time previously served on supervised release, except that a defendant may not be required to serve more than five years “on any such revocation.” The district court revoked defendant’s supervised release on three different occasions. The statutory maximum term of imprisonment that the district court could impose upon the third revocation was two years. The Ninth Circuit held that the maximum term of imprisonment that can be imposed on a defendant who violates his supervised release need not be reduced by the aggregate length of any terms of imprisonment imposed after prior revocations of supervised release. For that reason, the court held, the district court properly sentenced defendant to 24 months, without reducing the sentence to account for the sentences that defendant had received for prior revocations. U.S. v. Knight, 580 F.3d 933 (9th Cir. 2009).
9th Circuit strikes down ban on using computer for any purpose related to minors. (580) Defendant was convicted of possession of child pornography, in violation of 18 U.S.C. §2252A(a)(5). The evidence showed that defendant used a computer to order child porn on a CD-ROM from undercover officers posing as sellers of adult material. When officers searched defendant’s house, they found 148 images of child porn on the hard drive of defendant’s computer. At sentencing, the district court prohibited defendant from using a computer to obtain access to “any material that relates to minors.” The Ninth Circuit held that this supervised release condition was impermissibly broad because, read literally, it would prevent defendant from using a computer to watch any material containing minors or to communicate with his own children. U.S. v. Riley, 576 F.3d 1046 (9th Cir. 2009).
9th Circuit applies limiting construction to supervised release conditions requiring medication and testing. (580) Defendant was convicted of distributing child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A). As a condition of supervised release, the district court ordered defendant to participate in a psychological counseling or sex offender treatment program. In completing that program, defendant was ordered to undergo physiological testing, such as polygraph and Abel testing, and take all prescribed medications. The Ninth Circuit held that in the absence of specific findings by the district court, the requirement that defendant take all prescribed medications must be construed as limited to non-psychotropic medications. Likewise, although the court properly ordered defendant to undergo polygraphs and Abel testing, the condition could not be construed to allow testing that invaded a significant liberty interest. U.S. v. Esparza, 552 F.3d 1088 (9th Cir. 2009).
9th Circuit says decision to require in-patient counseling cannot be delegated to probation. (580) At defendant’s sentencing for distributing child pornography, the court ordered defendant to participate in psychological or sex offender counseling, “which may include in-patient treatment, as approved and directed by the Probation Officer.” The Ninth Circuit held that a district court may not delegate to the Probation Officer the decision whether to include in-patient treatment in a defendant’s psychological or sex offender counseling. U.S. v. Esparza, 552 F.3d 1088 (9th Cir. 2009).
9th Circuit construes condition of supervised release to allow only drug tests mentioned in order. (580) At defendant’s sentencing on drug-trafficking offenses, the district court ordered defendant to submit to drug testing as a condition of supervised release. The court ordered defendant to submit to immediate drug testing on his release from prison and to “at least” two periodic drug tests thereafter. Defendant claimed that by not setting the maximum number of drug tests, the court impermissibly delegated the number of tests to the probation officer. The Ninth Circuit construed the district court’s order as implicitly limiting the maximum number of drug tests to three. Construing the order in that fashion, the Court of Appeals found no error. U.S. v. Garcia, 522 F.3d 855 (9th Cir. 2008).
9th Circuit holds that gang member can be barred from associating with street gangs. (580) Defendant, who had a history of association with the Harpys street gang, was convicted of possession of a firearm in furtherance of a drug-trafficking offense. At sentencing, the district court ordered as a condition of supervised release that defendant refrain from associating with “any criminal street gang,” including the Harpys street gang. Reviewing for plain error, the Ninth Circuit held that this condition’s use of the terms “associate” “any criminal street gang,” and “Harpys street gang” did not make the condition impermissibly vague. U.S. v. Vega, 545 F.3d 743 (9th Cir. 2008).
9th Circuit upholds supervised release condition for firearms offense requiring alcohol abstention. (580) Defendant was convicted of possessing a firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c). The presentence report disclosed that defendant’s family had a history of alcohol abuse and that defendant began drinking alcohol at age 14, had been arrested at age 16 for loitering and drinking beer, and had been ordered by a state court to attend Alcoholics Anonymous meetings. At sentencing, the district court ordered defendant as a condition of supervised release to abstain from using alcohol. The Ninth Circuit held that the alcohol-abstention condition was relevant to defendant’s history and reasonably related to the goal of rehabilitation. U.S. v. Vega, 545 F.3d 743 (9th Cir. 2008).
9th Circuit says community service may be supervised release condition for gun violation. (580) The Sentencing Guidelines, in § 5F1.3, state that community service may be ordered as a condition of supervised release. At defendant’s sentencing for possession of a firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c), the court imposed a condition of supervised release requiring defendant to perform 20 hours of community service a week, as directed by the probation officer, when defendant is not employed or in school. The Ninth Circuit held that in light of defendant’s history of gang membership and scattered employment, the condition of supervised release was valid. U.S. v. Vega, 545 F.3d 743 (9th Cir. 2008).
9th Circuit upholds lifetime supervised release term for possession of child porn. (580) Under 18 U.S.C. § 3583(k), defendants convicted of possession of child pornography, in violation of 18 U.S.C. § 2252A, may be sentenced to a lifetime term of supervised release. Prior to defendant’s sentencing on his § 2252A conviction, the probation office recommended that he receive a lifetime term of supervised release in order to protect the public and because defendant had failed to provide information that allowed an assessment of his “psychological condition and orientation.” Relying on the presentence report, the district court imposed a lifetime term of supervised release. The Ninth Circuit rejected defendant’s contention that the lifetime supervised release term was unreasonable in light of any evidence that he had ever harmed anyone. U.S. v. Daniels, 541 F.3d 915 (9th Cir. 2008).
9th Circuit allows physiological testing for child porn defendant as condition of supervised release. (580) Defendant was convicted of possession of child pornography. As a condition of supervised release, he was ordered to submit to physiological testing, which could include polygraph and Abel testing. The Ninth Circuit held that requiring defendant to engage in polygraph or Abel testing did not violate defendant’s Fifth Amendment or due process rights. U.S. v. Daniels, 541 F.3d 915 (9th Cir. 2008).
9th Circuit affirms ban on pictures of sexually explicit conduct for child porn offense. (580) When sentencing defendant for possession of child pornography, the district court barred defendant, as a condition of supervised release, from possessing any materials depicting or describing sexually explicit conduct, as that term is defined in 18 U.S.C. § 2256(2). Defendant argued that this condition effected a greater deprivation of liberty than necessary and violated the First Amendment because he was convicted only of possession of child pornography. Reviewing for plain error, the Ninth Circuit upheld the condition, rejecting defendant’s contention that such a condition may not be imposed in the absence of evidence that a defendant has a history of child molestation or pedophilia. U.S. v. Daniels, 541 F.3d 915 (9th Cir. 2008).
9th Circuit restricts child porn defendant from frequenting places used by minors. (580) At defendant’s sentencing for possession of child pornography, the district court imposed conditions of supervised release that prohibited defendant from loitering within 100 feet of a school yard, park, or other places primarily used by minors and from residing “within direct view” of such places. Defendant challenged these conditions because there was no evidence that he had ever posed a danger to a minor. Reviewing for plain error, the Ninth Circuit upheld the condition based on the sheer volume of child porn defendant possessed and e-mails he had written that discussed having had sex with children. U.S. v. Daniels, 541 F.3d 915 (9th Cir. 2008).
9th Circuit finds no error in failure to explain lifetime supervised release term. (580) Defendant pleaded guilty to possession of child pornography. Prior to sentencing, both the probation office and the government recommended that defendant be sentenced to a lifetime period of supervised release. Defendant’s sentencing memorandum opposed the lifetime supervised release term. At sentencing, neither party mentioned the length of supervised release, and the district court did not explain its reasons for imposing a lifetime supervised release term. The Ninth Circuit held that because the record showed that the court considered the arguments and evidence that defendant submitted, it had not erred in failing to explain the reasons for imposing a lifetime supervised release term. U.S. v. Daniels, 541 F.3d 915 (9th Cir. 2008).
9th Circuit upholds computer use restrictions on child porn defendant, as long as they are reasonably construed. (580) Defendant pleaded guilty to possession of child pornography that he downloaded from the Internet. At sentencing, the district court imposed conditions of supervised release that required defendant’s probation officer to approve his use of computers and Internet service providers, allowed the search and seizure of any computer defendant owned and the installation of software to monitor computer use, and required the probation officer’s approval before defendant made any software modifications in a computer. The Ninth Circuit held that these conditions were reasonably related to defendant’s offense, as long as the requirement that defendant receive approval for software modifications was not construed to apply to automatic and routine software updates or additions. U.S. v. Goddard, 537 F.3d 1087 (9th Cir. 2008).
9th Circuit construes ban on use of computers except at work to forbid use of work computer except for work. (580) A condition of supervised release imposed on defendant, who was convicted of possession of child pornography that he downloaded from the Internet, barred him from all use of computers except within the scope of his employment. The Ninth Circuit stated that if interpreted as a total ban on the use of computers for any purpose except work, this condition would be “problematic.” The court construed the condition to mean that while at work, defendant could use computers and computer-related devices only within the scope of his employment. So construed, the court found the condition reasonably related to defendant’s offense. U.S. v. Goddard, 537 F.3d 1087 (9th Cir. 2008).
9th Circuit upholds supervised release conditions regulating employment. (580) At defendant’s sentencing for possession of child porngraphy, the district court imposed conditions of supervised release that barred defendant from working in an environment that would bring him into regular contact with minors or from working for a company whose principal product involves materials displaying sexually explicit conduct and that required his probation officer to approve any employment. The Ninth Circuit found that the district court did not err in imposing these conditions, even though defendant worked as a warehouse foreman before his conviction. U.S. v. Goddard, 537 F.3d 1087 (9th Cir. 2008).
9th Circuit affirms condition restricting use of mail box for defendant who downloaded child porn. (580) Defendant was convicted of possession of child pornography that he downloaded from the Internet. As a condition of supervised release, the district court ordered defendant to obtain the probation officer’s approval before using a post office box or receiving mail through a private carrier. Defendant argued that this condition was invalid because he did not use the mails when committing his offense. The Ninth Circuit upheld the condition because both the mail and the Internet are channels for the distribution of child pornography. U.S. v. Goddard, 537 F.3d 1087 (9th Cir. 2008).
9th Circuit upholds supervised release term for prisoner transferred from foreign country. (580) Defendant was convicted of drug offenses in Korea and sentenced to 60 months’ imprisonment. Pursuant to a treaty with South Korea, defendant was transferred to the U.S. to serve his sentence. Under 18 U.S.C. § 4106A(b) (1)(C), the combined periods of imprisonment and supervised release that a defendant serves when transferred from a foreign country may not exceed the term of imprisonment imposed by the foreign court. In defendant’s case, the Parole Commission, which administers the sentences of prisoners transferred from foreign countries, set defendant’s supervised release term at 36 months or until the end of the 60-month imprisonment term set by the foreign court, whichever is longer. Under the Parole Commission’s decision, defendant would serve a longer term of supervised release if the Bureau of Prisons granted him early release from prison based on his good-time credits. Defendant argued that the Parole Commission should have set a fixed term of supervised release. The Ninth Circuit disagreed and held that the Parole Commission acted within its discretion in imposing a term of supervised release that began when he was released and ended when his 60-month sentence expired. U.S. v. Tsui, 531 F.3d 977 (9th Cir. 2008).
9th Circuit rejects supervised release condition barring access to pornography. (580) At defendant’s sentencing for transporting child pornography, the district court imposed a condition of supervised release barring defendant from accessing “any material that relates to pornography of any kind.” The Ninth Circuit held that the term “pornography” is too vague to put defendant on notice of the prohibited conduct. It vacated the condition and remanded to allow the district court to impose a more specific condition. U.S. v. Stoterau, 524 F.3d 988 (9th Cir. 2008).
9th Circuit holds that requiring a polygraph as a condition of supervised release does not violate Fifth Amendment. (580) Defendant posted pictures of a minor boy on a website and then arranged for the boy to have sex with men who saw his picture on the site. He pleaded guilty to transporting child pornography. At sentencing, the district court ordered defendant as a condition of supervised release to enroll in a sex offender treatment program and to submit to polygraph testing if it was part of the program. The Ninth Circuit held that mandatory polygraph examinations would not infringe on defendant’s Fifth Amendment privilege against compelled self-incrimination because defendant could assert the privilege during the polygraph exam. The court also held that the polygraph exam also would not constitute custodial interrogation and therefore that defendant would not be entitled to Miranda warnings before the exam. U.S. v. Stoterau, 524 F.3d 988 (9th Cir. 2008).
9th Circuit upholds Abel testing as supervised release condition for sex offender. (580) Defendant pleaded guilty to transporting child pornography. The child pornography consisted of photographs of a minor boy that defendant posted on the Internet so that he could arrange for the boy to provide sex to other men for money. As a condition of supervised release, the district court ordered defendant to under Abel testing, which attempts to measure the subject’s sexual attraction to various categories of children and adults by showing the subject pictures. The Ninth Circuit held that required Abel testing did not significantly intrude on defendant’s liberty and that regardless of the reliability of Abel testing the district court could reasonably conclude that it had value as part of a sex offender treatment program. U.S. v. Stoterau, 524 F.3d 988 (9th Cir. 2008).
9th Circuit says defendant can be required to pay for sex offender treatment as a condition of supervised release. (580) Defendant pleaded guilty to an offense involving the sexual exploitation of a minor and the transportation of child pornography. As a condition of supervised release, the district court ordered defendant to participate in a sex offender program and to pay “all of part” of the costs of that program. The court directed defendant to provide the payment to the Probation Officer. The Ninth Circuit held that the district court did not commit plain error in imposing this condition. U.S. v. Stoterau, 524 F.3d 988 (9th Cir. 2008).
9th Circuit upholds supervised release condition barring ownership of P.O. Box in child porn case. (580) As a condition of supervised release at defendant’s sentencing for transportation of child pornography, the district court ordered defendant not to own, use, or have access to the services of any commercial mail-receiving agency or to open a post-office box without the approval of his Probation Officer. The Ninth Circuit rejected defendant’s challenge to this condition, holding that supervised release conditions need not be reasonably related to the offense of conviction and that this condition was reasonably related to the goals of specific deterrence and did not impose an undue deprivation of liberty. U.S. v. Stoterau, 524 F.3d 988 (9th Cir. 2008).
9th Circuit approves supervised release condition barring contact with minors for child porn offense. (580) Defendant convinced a 14-year-old boy to allow defendant to post pictures of the boy on the Internet and to have sex with men who saw the boy’s pictures. He pleaded guilty to transporting child pornography. As a condition of supervised release, the district ordered defendant to have no unsupervised contact with any person under the age of 18. The Ninth Circuit upheld the condition on the ground that it was reasonably related to defendant’s rehabilitation and to protecting the public. U.S. v. Stoterau, 524 F.3d 988 (9th Cir. 2008).
9th Circuit says child porn defendant who exploited minor may be barred from job involving contact with minors. (580) Defendant pleaded guilty to transporting child pornography based on conduct that included arranging for a 14-year-old boy to have sex with men who saw the boy’s picture on a website. As a condition of supervised release, the district court barred defendant from affiliating with or working for any business or organization that caused him to regularly contact persons under the age of 18. The Ninth Circuit held that by limiting defendant’s occupation, the condition was reasonably related to the goal of ensuring that defendant did not commit similar offenses in the future. The court therefore upheld the condition. U.S. v. Stoterau, 524 F.3d 988 (9th Cir. 2008).
9th Circuit upholds financial disclosure condition for drug-trafficking offense. (580) Defendant was convicted of drug-trafficking offenses. As a condition of supervised release, the district court ordered defendant to provide the probation officer with any requested financial information. The Ninth Circuit held that this condition was reasonably related to defendant’s offense because evidence that defendant was receiving significant funds would tend to show that he was involved in illegal activity. U.S. v. Garcia, 522 F.3d 855 (9th Cir. 2008).
9th Circuit upholds financial disclosure condition for drug-trafficking offense. (580) Defendant was convicted of drug-trafficking offenses. As a condition of supervised release, the district court ordered defendant to provide the probation officer with any requested financial information. The Ninth Circuit held that this condition was reasonably related to defendant’s offense because evidence that defendant was receiving significant funds would tend to show that he was involved in illegal activity. U.S. v. Garcia, 522 F.3d 855 (9th Cir. 2008).
9th Circuit construes condition of supervised release to allow only drug tests mentioned in order. (580) At defendant’s sentencing on drug-trafficking offenses, the district court ordered defendant to submit to drug testing as a condition of supervised release. The court ordered defendant to submit to immediate drug testing on his release from prison and to “at least” two periodic drug tests thereafter. Defendant claimed that by not setting the maximum number of drug tests, the court impermissibly delegated the number of tests to the probation officer. The Ninth Circuit construed the district court’s order as implicitly limiting the maximum number of drug tests to three. Construing the order in that fashion, the court of appeals found no error. U.S. v. Garcia, 522 F.3d 855 (9th Cir. 2008).
9th Circuit says new term of supervised release after revocation is not limited to duration of revoked term. (580) Defendant was convicted before 1994 and sentenced to 63 months in prison followed by a five year term of supervised release. His supervised release was revoked twice and he was placed on 90 days supervised release. When the 90 day term was revoked, the court sentenced him to three years’ supervised release. He appealed, arguing that the new term of supervised release was limited to the duration of the revoked term. On appeal, the Ninth Circuit rejected this argument noting that in 1994, Congress amended the supervised release statute and gave district courts the authority to order post-revocation supervised release under 18 U.S.C. § 3583(h). However, for defendants whose conviction occurred before the 1994 amendment, the district court’s authority to impose post-revocation penalties is governed by the pre-amendment version of § 3583. After analyzing the Supreme Court’s decision in Johnson v. U.S., 529 U.S. 694 (2000), the Ninth Circuit held that for defendants convicted before 1994, the new term of supervised release after revocation is limited to the original term minus any time served on an earlier revocation. In defendant’s case the original term was five years or 60 months and defendant had served 6, 7, and 3 months imprisonment on earlier revocations. So the court could impose no more than 44 months of supervised release, and the 36 month term here was permissible. U.S. v. Anderson, 519 F.3d 1021 (9th Cir. 2008).
9th Circuit rejects ban on possession of computers for defendant convicted of identity theft offense. (580) Defendant pleaded guilty to possession of an illegal device for stealing credit card numbers, in violation of 18 U.S.C. § 1029(a)(4). As a condition of supervised release, the district court barred defendant from accessing or possessing any computer or “computer-related device.” The Ninth Circuit held that this condition was impermissibly vague because the court did not define “computer-related device” and that it was not reasonably related to defendant’s offense because defendant had not used a computer to commit his offense. U.S. v. Barsumyan, 517 F.3d 1154 (9th Cir. 2008).
9th Circuit upholds requirement that deported defendant report to probation if he reenters U.S. (580) At defendant’s sentencing for possession of an illegal device for stealing credit card numbers, in violation of 18 U.S.C. § 1029(a)(4), the district court imposed a condition of supervised release requiring defendant to report to the probation office if he is deported and re-enters the U.S. Defendant contended that the condition violated his Fifth Amendment privilege against compelled self-incrimination because he would in effect have to report that he illegally re-entered the U.S. after deportation. The Ninth Circuit held that the condition did not violate the Fifth Amendment. U.S. v. Barsumyan, 517 F.3d 1154 (9th Cir. 2008).
9th Circuit holds that invalid supervised release condition is plain error even though defendant will be deported. (580) The government argued that an improper condition of supervised release did not rise to the level of plain error because the defendant would be deported when released from prison and therefore would probably never serve his term of supervised release. Because defendant would not be subject to the condition, the government argued that it could not affect his substantial rights. The Ninth Circuit disagreed and held that the probability that a defendant will ever be subject to a supervised release condition is irrelevant to the determination whether it affects his substantial rights. U.S. v. Barsumyan, 517 F.3d 1154 (9th Cir. 2008).
9th Circuit upholds lifetime supervised release term for possession of child porn. (580) Under 18 U.S.C. § 3583(k), defendants convicted of possession of child pornography, in violation of 18 U.S.C. § 2252A, may be sentenced to a lifetime term of supervised release. Prior to defendant’s sentencing on his § 2252A conviction, the probation office recommended that he receive a lifetime term of supervised release in order to protect the public and because defendant had failed to provide information that allowed an assessment of his “psychological condition and orientation.” Relying on the presentence report, the district court imposed a lifetime term of supervised release. The Ninth Circuit rejected defendant’s contention that the lifetime supervised release term was unreasonable in light of any evidence that he had ever harmed anyone. U.S. v. Daniels, __ F.3d __ (9th Cir. Aug. 29, 2008) No. 07-50242.
9th Circuit upholds lifetime supervised release term for child porn offense defendant with prior sexual assault record. (580) Defendant pleaded guilty to possession of child pornography, in violation of 18 U.S.C. § 2552A. At sentencing, the district court imposed a lifetime term of supervised release, explaining that the term was necessary because defendant had a prior conviction for attempted sexual assault and because his offense involved images of sadistic acts. The Ninth Circuit held that the district court had articulated sufficient reasons for the length of the supervised release term and that the lifetime term was reasonable. U.S. v. Cope, 527 F.3d 944 (9th Cir. 2007).
9th Circuit says that defendant convicted of child porn possession can only be ordered to take medication related to treatment. (580) Defendant was convicted of possession of child pornography. As a condition of supervised release, the district court ordered defendant to take all prescribed medication. The Ninth Circuit held that this condition was overbroad to the extent that it required defendant to take medications that were not reasonably related to his treatment as a sex offender. U.S. v. Cope, 527 F.3d 944 (9th Cir. 2007).
9th Circuit finds supervised release condition barring possession of child porn reasonable. (580) In sentencing defendant for possession of child pornography, the district court ordered as a condition of supervised release that defendant not possess any materials depicting or describing child pornography. Defendant objected to this condition on the ground that it barred him from possessing statutes or case law describing child pornography or writings that he was required to do in a sex treatment program. The Ninth Circuit held that the condition reached statutes and case law describing child pornography and defendant’s own writings about child pornography, but held that the condition was reasonable if interpreted to allow defendant to read statutes and case law without retaining them and to participate in a sex offender treatment program. U.S. v. Cope, 527 F.3d 944 (9th Cir. 2007).
9th Circuit finds that waiver of right to appeal sentence within negotiated range does not bar appeal of supervised release term. (580) Defendant pleaded guilty to possession of child pornography pursuant to an agreement in which the parties agreed to the term of imprisonment that defendant should receive, but did not agree on a term of supervised release. In the agreement, defendant waived his right to appeal “any sentence imposed” by the district court “and the manner in which the sentence is determined,” as long as the sentence was not illegal or above the sentencing range yielded by the guidelines offense level negotiated by the parties. At sentencing, the district court imposed a lifetime term of supervised release, a permissible term for defendant’s offense. The Ninth Circuit held that defendant’s waiver of his right to appeal did not bar his appeal challenging the length of his supervised release term because the term of supervised release is not governed by the Sentencing Guidelines and therefore it was unclear whether the parties intended the appeal waiver to apply to defendant’s supervised release term. U.S. v. Cope, 527 F.3d 944 (9th Cir. 2007).
9th Circuit upholds warrantless search condition for first offender. (580) At defendant’s sentencing for conspiring to participate in a scheme that resulted in defrauding banks, the court ordered as a condition of supervised release that defendant submit to warrantless searches. Defendant argued that this condition was unreasonable because he had no prior convictions and had accepted full responsibility for his crime. The Ninth Circuit held that even though the condition was “very intrusive,” it was not an abuse of discretion. U.S. v. Betts, 511 F.3d 872 (9th Cir. 2007).
9th Circuit upholds supervised release condition barring employment involving access to employer’s funds. (580) Defendant, an employee of a credit reporting agency, took payments to falsely improve people’s credit scores so that they could obtain loans for which they would not otherwise have qualified. At defendant’s sentencing, the court ordered as a condition of supervised release that defendant “shall not be employed in any capacity wherein he has custody, control, or management of his employer’s funds, lines of credit, or any similar sources of money.” The Ninth Circuit rejected the contention that this condition was unreasonable because defendant had not been convicted of stealing from his employer. Instead, the court held, the restriction was intended to protect the public from the prospect that defendant would commit crimes “reasonably similar” to the offense of conviction. U.S. v. Betts, 511 F.3d 872 (9th Cir. 2007).
9th Circuit holds that court may order windfalls applied to restitution but may not delegate authority to probation. (580) Defendant was convicted of participating in a scheme that caused substantial losses to banks that made loans to unqualified borrowers. At sentencing, he was ordered to pay about $1 million in restitution. As a condition of supervised release, the court ordered defendant, “as directed by the Probation Officer,” to apply any money he received from lottery winnings, tax refunds, inheritances, or other unanticipated windfalls to the restitution obligation. The Ninth Circuit held that the court could properly order defendant to apply financial windfalls to his restitution obligation, but that the court erred in delegating discretion to the Probation Officer to determine the extent to which defendant must use windfalls to pay restitution. U.S. v. Betts, 511 F.3d 872 (9th Cir. 2007).
9th Circuit vacates supervised release condition barring use of alcohol. (580) Defendant participated in a scheme to falsely inflate borrower’s credit scores so that they could obtain loans for which they were not qualified. At sentencing, as a condition of supervised release, the district court barred defendant from using alcohol. The Ninth Circuit vacated this condition, holding that there was nothing in the record to suggest that defendant’s offense had been caused by alcohol abuse or that defendant had a history of alcohol abuse. U.S. v. Betts, 511 F.3d 872 (9th Cir. 2007).
9th Circuit holds that probation officer may decide if defendant has ability to pay for drug treatment. (580) Defendant was convicted of being a felon in possession of a firearm. As a condition of supervised release, the court ordered defendant to pay the costs of treating defendant’s drug or alcohol dependency “as directed by the Probation Officer.” The Ninth Circuit held that this condition did not impermissibly delegate to the probation officer the decision whether defendant had the ability to pay for drug or alcohol treatment. U.S. v. Soltero, 510 F.3d 858 (9th Cir. 2007).
9th Circuit upholds supervised release conditions barring association with gang or wearing gang insignia. (580) At defendant’s sentencing for being a felon in possession of a firearm, the court ordered as conditions of supervised release that he not “associate with any known member” of a street gang or “disruptive group,” not be present during any gathering of a particular street gang, and not wear any clothing or insignia that “connoted affiliation” with, or membership in, that gang. The Ninth Circuit held that the conditions were not impermissibly vague, except for the condition that defendant not associate with any “disruptive group.” U.S. v. Soltero, 510 F.3d 858 (9th Cir. 2007).
9th Circuit, in amended opinion, upholds supervised release condition requiring defendant to use “true legal name.” (580) At defendant’s sentencing for being a felon in possession of a firearm, the court imposed a condition of supervised release that barred defendant from having any form of identification in any name other than the defendant’s “true legal name.” Defendant objected because he did not use the name that may “technically” be his true legal surname. In its original opinion, the Ninth Circuit vacated this condition and remanded with directions to alter the condition to allow defendant to use the name under which he was prosecuted. In an amended opinion, the court affirmed the condition, stating that if defendant wished to be called by a name other than his given name, he should legally change it. U.S. v. Soltero, 506 F.3d 718 (9th Cir. 2007).
9th Circuit vacates supervised release condition requiring defendant to use “true legal name.” (580) At defendant’s sentencing for being a felon in possession of a firearm, the court imposed a condition of supervised release that barred defendant from having any form of identification in any name other than the defendant’s “true legal name.” Defendant objected because he did not use the name that may “technically” be his true legal surname. The Ninth Circuit vacated this condition and remanded with directions to alter the condition to allow defendant to use the name under which he was prosecuted. U.S. v. Soltero, 506 F.3d 718 (9th Cir. 2007).
9th Circuit affirms collecting DNA from persons on supervised release. (580) The DNA Analysis Backlog Elimination Act of 2000 authorizes a probation officer to collect a DNA sample from a person on supervised release. In U.S. v. Kincade, 379 F.3d 813 (9th Cir. 2004) (en banc), and U.S. v. Reynard, 473 F.3d 1008 (9th Cir. 2007), the court held that requiring convicted offenders to give DNA samples does not constitute an unconstitutional suspicionless search, in violation of the Fourth Amendment, and did not violate the Ex Post Facto Clause as applied to defendants sentenced before the Act became effective. Here, the Ninth Circuit held that the Act does not impose punishment on a disfavored class and therefore does not constitute an unconstitutional bill of attainder. The court also held that the Act does not violate the constitutional separation of powers by allowing probation officers to exercise executive branch functions. U.S. v. Lujan, 504 F.3d 1003 (9th Cir. 2007).
9th Circuit finds evidence insufficient to require participation in domestic violence program. (580) As a condition of supervised release in sentencing defendant for transferring false identification documents, the district court ordered defendant to participate in a domestic violence treatment program. The only evidence supporting this condition was a statement in the presentence report that defendant and his wife had separated. The Ninth Circuit held that this evidence was insufficient to support the requirement that defendant participate in a domestic violence treatment program. U.S. v. Abbouchi, 494 F.3d 825 (9th Cir. 2007).
9th Circuit upholds new supervised release conditions imposed for failure to pay restitution. (580) Defendant committed bank fraud by inducing a bank to provide him with a credit card vendor machine that he used to submit unauthorized credit transactions to the bank for payment. While on supervised release after serving his prison sentence, defendant violated the conditions of supervised release by failing to make restitution payments. The district court revoked his supervised release and imposed new conditions of release, including that he maintain a single bank account, truthfully file tax returns, claim no more than one allowance on his W-4, incur no credit charges without prior approval of his probation officer, and submit to drug testing. The Ninth Circuit held that because allowing the probation officer to monitor defendant’s finances would ensure that he paid restitution, the district court properly imposed the conditions concerning defendant’s bank accounts, credit transactions, and taxes. The court also upheld the drug-testing condition, even though there was no evidence of drug use by defendant, because defendant failed to establish that the testing would be a significant deprivation of liberty. U.S. v. Jeremiah, 493 F.3d 1042 (9th Cir. 2007).
9th Circuit says that after Booker statutory maximum determines maximum term for supervised release violation. (580) The statutory maximum sentence for the offense of conviction usually determines the maximum term of supervised release and the maximum sentence that a defendant can receive for violating the terms of his supervised release. 18 U.S.C. § 3583. Prior to Booker, courts understood the maximum sentence for purposes of determining the permissible supervised release term as the maximum statutory sentence, not the maximum sentence available under the applicable guidelines. Defendant, who was sentenced before Booker, argued that the maximum sentence she could receive for violating the conditions of her supervised release should be determined by the maximum term available under the guidelines. The Ninth Circuit rejected this argument and held that Booker did not alter the meaning of the term “statutory maximum.” Thus the statutory maximum sentence for the underlying offense determines the permissible term of supervised release and the maximum sentence that can be imposed for a violation of supervised release. U.S. v. Ray, 484 F.3d 1168 (9th Cir. 2007).
9th Circuit upholds supervised release condition barring association with neo-Nazis or white supremacists. (580) Defendant pleaded guilty to making a false statement regarding the acquisition of a firearm. At sentencing, the court heard evidence that defendant was actively involved in a neo-Nazi/white supremacist movement and that he had several firearms hidden in his house near white supremacist propaganda. Based on that evidence, the district court made it a condition of defendant’s supervised release that he not associate with known neo-Nazi or white supremacists or organizations that advocates criminal activity or overthrowing the U.S. government. The court also ordered defendant not to possess neo-Nazi/white supremacist propaganda. The Ninth Circuit upheld this condition as reasonably related to defendant’s rehabilitation and the protection of the public. U.S. v. Ross, 476 F.3d 719 (9th Cir. 2007).
9th Circuit finds supervised release bar on alcohol use justified by prior history of substance abuse. (580) Defendant was convicted of counterfeiting. As a condition of supervised release, the district court ordered defendant to abstain from using alcohol and to submit to alcohol testing. Defendant had no history of alcohol abuse, and his offense did not involve alcohol, but he did have a history of substance abuse. Reviewing for plain error, the district court held that the district court did not err when it directed defendant to abstain from alcohol and to submit to alcohol testing. U.S. v. Sales, 476 F.3d 732 (9th Cir. 2007).
9th Circuit rejects supervised release condition restricting access to computers as too broad. (580) Defendant used a computer and computer peripherals to produce counterfeit currency. As a condition of supervised release for defendant’s conviction for counterfeiting, the district court ordered defendant to obtain approval from his probation officer before using any particular computer or computer-related device, Internet service provider, or computer or Internet account. The Ninth Circuit held that this supervised release condition was not reasonably related to defendant’s counterfeiting offense because it entailed computer devices beyond those he had used to commit his offense and because defendant had no prior offenses involving computers. U.S. v. Sales, 476 F.3d 732 (9th Cir. 2007).
9th Circuit strikes down supervised release condition allowing search of all computer equipment. (580) As a condition of supervised release for defendant’s counterfeiting offense, the district court required that defendant submit all computers in his possession to search by the government. The Ninth Circuit held that some computer monitoring would be a reasonable condition of supervised release but that the condition imposed by the district court was too broad and failed to specify the computer equipment to which it applied. U.S. v. Sales, 476 F.3d 732 (9th Cir. 2007).
9th Circuit finds error in imposition of drug-treatment supervised release condition. (580) As a condition of supervised release at defendant’s sentencing for fraudulently converting federal funds, the district court ordered defendant to participate in either in-patient or out-patient substance abuse treatment programs. Defendant had a 20-year-old conviction for selling cocaine, but no evidence was presented that defendant was currently using drugs. The Ninth Circuit held that the district court abused its discretion in imposing this condition because defendant’s offense was not drug related and there was no evidence of drug abuse bearing any relation to the fraud. U.S. v. Napier, 463 F.3d 1040 (9th Cir. 2006).
9th Circuit upholds mental-health examination required as a condition of supervised release. (580) At defendant’s sentencing for fraudulently converting federal funds, the district court ordered defendant, as a condition of supervised release, “to participate in and fully comply with a mental health evaluation.” The Ninth Circuit upheld this condition, finding it justified by defendant’s history of violence toward women. U.S. v. Napier, 463 F.3d 1040 (9th Cir. 2006).
9th Circuit holds that nonstandard supervised release conditions may not be imposed after sentencing hearing. (580) After orally imposing sentence on defendant, the district court issued a written judgment that contained nonstandard conditions of supervised release that it had not imposed at the sentencing hearing. The Ninth Circuit held that standard, statutorily required conditions of supervised release need not be orally imposed at a sentencing hearing, but that nonstandard conditions cannot be deemed to be implicit in the oral pronouncement of sentence. The court held that by adding the conditions after the sentencing hearing, the district court violated defendant’s right to be present for the imposition of that part of his sentence. The court vacated and remanded for resentencing instead of striking the nonstandard conditions because the district court informed defendant at sentencing that it would include additional supervised release conditions in the written judgment. U.S. v. Napier, 463 F.3d 1040 (9th Cir. 2006).
9th Circuit finds no plain error in supervised release condition that may allow probation officer to order drug testing. (580) In U.S. v. Stephens, 424 F.3d 876 (9th Cir. 2005), the court held that in imposing conditions of supervised release, the district court could not delegate to the probation officer the decision to require drug testing apart from a drug treatment program. As a condition of supervised release, the district court ordered defendant to participate in drug abuse treatment and drug and alcohol testing, “as instructed by the probation officer.” The Ninth Circuit held that the language used to impose the condition of supervised release was ambiguous but that the court need not determine its meaning because defendant could not show that any error amounted to plain error. U.S. v. Maciel-Vasquez, 458 F.3d 994 (9th Cir. 2006).
9th Circuit upholds supervised release condition requiring alcohol abstention. (580) As a condition of supervised release, the district court ordered defendant to abstain from alcohol. The Ninth Circuit held that because defendant had a prior conviction for driving under the influence of alcohol and a prior arrest for possession of an open bottle of alcohol, the district court did not abuse its discretion in imposing this condition. U.S. v. Maciel-Vasquez, 458 F.3d 994 (9th Cir. 2006).
9th Circuit defines procedures for requiring penile plethysmograph testing during supervised release. (580) Penile plethysmograph testing involves “placing a pressure-sensitive device around a man’s penis, presenting him with an array of sexually stimulating images, and determining his level of sexual attraction by measuring changes in his erectile response.” The Ninth Circuit held that courts may require this procedure as a condition of supervised release, but only if the government carries its burden of showing that the procedure is a reasonable necessary condition of the defendant’s supervised release in that particular case. Before a court imposes that condition, the probation officer should ordinarily consult a psychologist or other expert, and the court must consider whether the procedure is necessary in light of the particular offenses committed by the defendant. U.S. v. Weber, 451 F.3d 552 (9th Cir. 2006).
9th Circuit holds that supervised release does not violate Apprendi. (580) Under 18 U.S.C. § 3583, a district court may impose a term of supervised release for any felony (and must impose supervised release when required by statute). The Ninth Circuit held that § 3583 does not require proof of any fact beyond the fact of the defendant’s conviction on the underlying offense and thus that supervised release does not amount to punishment beyond the punishment authorized by the offense of conviction. For that reason, the court held that imposition of a term of supervised release does not violate the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), that a court may not increase a defendant’s statutory maximum sentence based on a fact not found by a jury. U.S. v. Huerta-Pimental, 445 F.3d 1220 (9th Cir. 2006).
9th Circuit finds that government may collect restitution even if defendant is no longer on supervised release. (580) While defendant was on supervised release, the government filed an action to garnish his wages to satisfy his restitution obligation. While the garnishment action was pending, defendant’s supervised release ended. The Ninth Circuit held that the existence or non-existence of supervised release has no bearing on the district court’s jurisdiction to enter a post-judgment garnishment order. U.S. v. Mays, 430 F.3d 963 (9th Cir. 2005).
9th Circuit says court may delegate selection of drug treatment program to probation officer. (580) The Ninth Circuit held that when a court orders a defendant to participate in a drug treatment program as a condition of supervised release, it may delegate the selection of the program to the probation officer. The court also held that when the court orders defendant to participate in a drug treatment program it may also allow the professionals who conduct the program to determine the frequency with which the defendant is subjected to drug testing. U.S. v. Stephens, 424 F.3d 876 (9th Cir. 2005).
9th Circuit holds that court may not delegate number of drug tests required during supervised release. (580) As a condition of supervised release, the district court ordered defendant to submit to a drug test within 15 days of release from prison and “at least” two periodic tests thereafter as directed by the probation officer. The Ninth Circuit held that when a court orders a defendant to be tested for drugs on a specific number of occasions, it may delegate the scheduling of the testing to the probation officer. A court may not, however, delegate to the probation officer the number and timing of drug tests. On this basis, the Ninth Circuit held that the district court erred by setting only the minimum number of drug tests for the defendant. U.S. v. Stephens, 424 F.3d 876 (9th Cir. 2005).
9th Circuit finds no violation of due process right to confrontation at supervised release hearing. (580) In a supervised release revocation proceeding, the defendant has a due process right to confront witnesses against him, but the government may introduce hearsay testimony if its reasons for using hearsay outweigh the defendant’s right to confront witnesses. To sustain false imprisonment charges against defendant at his supervised release violation hearing, the government introduced hearsay statements from his girlfriend, who did not testify at the hearing. The Ninth Circuit held that the government’s inability to find the girlfriend provided good cause for the government not to produce her, that the hearsay testimony bore some indicia of reliability, and that the government’s reasons for using hearsay therefore outweighed defendant’s interest in confronting the girlfriend. U.S. v. Hall, 419 F.3d 980 (9th Cir. 2005).
9th Circuit rejects facial challenge to supervised release search condition. (580) A condition of defendant’s supervised release required him to submit to his person or property to search or seizure at any time by any law enforcement officer with or without a warrant or reasonable or probable cause. The Ninth Circuit rejected defendant’s facial challenge to this conviction, although it noted that “there may be circumstances in which a search conducted pursuant to this condition would raise Fourth Amendment concerns.” U.S. v. Dupas, 417 F.3d 1064 (9th Cir. 2005), amended, U.S. v. Dupas, 419 F.3d 916 (9th Cir. 2005).
9th Circuit upholds supervised release condition requiring defendant to pay for alcohol or drug dependency treatment. (580) A condition of defendant’s supervised release required him to pay all or part of the costs of treating his drug or alcohol dependency and allowed defendant’s probation officer to determine the amount of payment. The Ninth Circuit found that this condition did not constitute plain error and therefore rejected defendant’s contention that this condition improperly delegated to the probation officer the determination of the amount that defendant would pay for his drug or alcohol treatment. U.S. v. Dupas, 417 F.3d 1064 (9th Cir. 2005), amended, U.S. v. Dupas, 419 F.3d 916 (9th Cir. 2005).
9th Circuit rejects mandatory polygraph as supervised release condition for sex offense. (580) As a condition of supervised release for possession of child pornography, defendant was required to submit to mandatory polygraph examinations in which he would have to divulge his full sexual history, including illegal sexual conduct. Defendant’s admissions could then be used to prosecute him for any crimes he admitted. The Ninth Circuit held that this condition violated defendant’s Fifth Amendment privilege against compelled self-incrimination. U.S. v. Antelope, 395 F.3d 1128 (9th Cir. 2005).
9th Circuit approves ban on contact with children as long as defendant receives notice. (580) Defendant, convicted of making false statements to a government agency, in violation of 18 U.S.C. § 1001, had a history of mental illness, neglect of her children, taking sexually explicit pictures of minors, and relationships with violent and sexually abusive men. At sentencing, the district court, without giving defendant notice, imposed a condition of supervised release that barred defendant from having contact with children, including her own children, without approval from the Probation Department. The Ninth Circuit held that barring defendant from unapproved contact with children was a reasonable condition of supervised release, even though it was not related to her offense, but that the district court erred by not giving defendant notice before imposing it. U.S. v. Wise, 391 F.3d 1027 (9th Cir. 2004).
9th Circuit holds that requiring DNA testing is permissible condition of supervised release. (580) A condition of supervised release required a defendant convicted of involuntary manslaughter to “cooperate in the collection” of a DNA sample. The Ninth Circuit held that the condition was not unconstitutionally vague and that it did not violate the Fourth Amendment. U.S. v. Hugs, 384 F.3d 762 (9th Cir. 2004).
9th Circuit upholds supervised release condition requiring defendant to wear sign stating his crime. (580) Defendant was convicted of theft of mail. At sentencing, the district court ordered defendant, as a condition of supervised release, to stand outside a post office for a day wearing a signboard stating, “I stole mail. This is my punishment.” A divided panel of the Ninth Circuit held that requiring defendant to wear the sign was reasonably related to the permissible goal of rehabilitation and did not violate 18 U.S.C. § 3583(d). The court also held that the supervised release condition did not violate the Eighth Amendment ban on cruel and unusual punishments. U.S. v. Gementera, 379 F.3d 596 (9th Cir. 2004).
9th Circuit refuses to vacate order revoking supervised release when appeal becomes moot. (580) In U.S. v. Munsingwear, Inc., 340 U.S. 36 (1950), the Supreme Court held that when a civil case becomes moot while on appeal, the judgment below should be vacated and the cause should be dismissed. Here, the Ninth Circuit held that when a defendant’s appeal of the judgment revoking his supervised release becomes moot because the defendant completed the term of supervised release, the defendant is not entitled to vacatur of the judgment when existing precedent squarely foreclosed the only issue he raised on appeal. U.S. v. Tapia-Marquuez, 361 F.3d 535 (9th Cir. 2004).
9th Circuit holds that appeal waiver of “sentence” waived special supervised release conditions. (580) Defendant’s plea agreement stated that if the court imposed the sentence recommended by the parties, he would waive his right “to appeal the sentence imposed.” Another provision of the agreement stated that defendant agreed to waive his appeal “of any aspect of the sentence imposed.” Defendant filed an appeal challenging special supervised release conditions imposed by the district court. The Ninth Circuit held that defendant’s appeal waiver barred his appeal of the supervised release conditions, not just the term of imprisonment. U.S. v. Joyce, 357 F.3d 921 (9th Cir. 2004).
9th Circuit requires medical basis for supervised release condition mandating use of antipsychotic drugs. (580) Defendant, convicted of transmitting a threatening communication in interstate commerce in violation of 18 U.S.C. § 875, had a history of mental illness and had been temporarily adjudged incompetent to stand trial. After regaining his competence with the help of medication, he pleaded guilty. At sentencing, the court ordered him as a condition of supervised release to take psychotropic medications prescribed by a physician. The Ninth Circuit held that because mandatory administration of antipsychotic drugs implicates “a grave infringement of liberty,” a court may not impose a condition of supervised release requiring a defendant to take such drugs absent on-the-record, medically informed findings establishing that the condition involves no greater deprivation of liberty than is necessary to accomplish the goals of supervised release. U.S. v. Williams, 356 F.3d 1045 (9th Cir. 2004).
9th Circuit rejects ripeness challenge to appeal challenging unenforced supervised release condition. (580) As a condition of supervised release, defendant was ordered to take psychotropic medication if prescribed by a physician. On defendant’s appeal challenging that contention, the government argued that review was premature because defendant had not been prescribed any medication and refused to take it. The Ninth Circuit distinguished cases finding premature challenges to the consequences of a potential revocation of supervised release and held that a defendant may appeal the legality of a condition of supervised release. U.S. v. Williams, 356 F.3d 1045 (9th Cir. 2004).
9th Circuit upholds supervised release conditions on defendant convicted of possessing sadistic child porn. (580) As conditions of supervised release for a defendant convicted of transmitting images depicting sadistic sexual exploitation of children, the district court imposed several special conditions of probation. The Ninth Circuit upheld the conditions, finding that defendant’s possession of small amounts of drugs at the time of his arrest justified the court’s order that defendant participate in outpatient drug treatment; there was nothing improper in letting the Probation Department choose defendant’s counseling program; defendant’s right to possess adult pornography could be abridged to address his sexual deviance problem; the lack of evidence that defendant ever molested a child did not bar the district court from concluding that defendant posed a risk to children and barring him from frequenting public places used by minors; restricting defendant’s Internet access was a reasonably necessary measure given defendant’s use of a computer to obtain and transmit child pornography; and the condition requiring defendant to consent to search of any computer he owned was not unreasonably vague. U.S. v. Rearden, 349 F.3d 608 (9th Cir. 2003).
9th Circuit strikes down occupational restriction imposed as supervised release condition. (580) While serving a term of supervised release for a drug trafficking violation, defendant violated the conditions of his release by leaving his county of residence and by operating a boat while under the influence of alcohol. In sentencing defendant for these violations, the court imposed new supervised release conditions requiring defendant (1) to provide his probation officer with a record of all of his business telephone calls, and (2) if defendant’s employment involved the collection of personal financial information, to notify his clients or customers of “third party risks.” The Ninth Circuit held that these conditions were not sufficiently related either to his offense of conviction or his supervised release violations, as required by § 5F1.5. U.S. v. Britt, 332 F.3d. 1229 (9th Cir. 2003).
9th Circuit vacates conditions of supervised release that did not relate to deterrence or public protection. (580) Under 18 U.S.C. § 3583(d)(2), conditions of supervised release can involve “no greater deprivation of liberty than is reasonably necessary for the purposes” of supervised release. Here, defendant was convicted of conspiracy to distribute and possess marijuana, but the district court imposed conditions of supervised release appropriate for sex offenders, based largely on a 1961 arrest for a sexual relationship with a minor and a 1981 kidnapping conviction involving the nude picture-taking of an eight-year-old girl. In addition, while he was on supervised release in this case, defendant, in the company of a convicted sex offender, impersonated a clergyman in an attempt to enter Canada for the purpose of setting up a children’s charity. On appeal, the Ninth Circuit held that the sex offender conditions ran afoul of the supervised release statute because there was “no reasonable relationship between them and either deterrence, public protection or rehabilitation.” Basing the conditions on twenty-year-old incidents, without more, did not promote the goals of public protection and deterrence. Moreover, the fact that defendant sought to set up a Children’s Charity with a convicted sex offender “is not probative of his likelihood of committing future sex crimes.” The presentence report characterized defendant’s charitable efforts as “nothing more than a financial scam seeking to exploit those with soft spots in their hearts for children rather than a veiled attempt to gain access to minors without whom he could have sexual relations.” U.S. v. T.M., 330 F.3d 1235 (9th Cir. 2003).
9th Circuit holds revocation of supervised release can be based on conviction resulting from nolo plea. (580) In U.S. v. Guadarrama, 742 F.2d 487 (9th Cir. 1984), the Ninth Circuit held that the district court could consider a state conviction resulting from a nolo contendere plea as probative of a charge that a person on probation violated the terms of his probation not to commit another crime. In the present case, the Ninth Circuit extended that holding to supervised release, affirming the district court’s finding that defendant violated the terms of his supervised release based on his no contest plea in California state court to a charge of manufacturing methamphetamine in violation of California Health and Safety Code § 11379.6. U.S. v. Verduzco, 330 F. 3d 1182 (9th Cir. 2003).
9th Circuit holds that automatic deportation may not be condition of supervised release. (580) Under 18 U.S.C. § 3583(d), a court may order as a condition of supervised release that a defendant be deported if the defendant is otherwise subject to deportation. The Ninth Circuit held that this statute does not authorize a court to order that a defendant be automatically deported as a condition of supervised release. Instead, the court held that § 3583(d) only authorizes a court to order that a defendant be delivered to immigration officials for deportation proceedings under the immigration laws. U.S. v. Tinoso, 327 F.3d 864 (9th Cir. 2003).
9th Circuit finds failure to provide written notice of supervised release condition did not invalidate condition. (580) Both 18 U.S.C. § 3583(f) and 18 U.S.C. § 3603(1) require that a person on supervised release receive a written statement of his conditions of supervised release. Defendant received oral notice of his supervised release conditions, but apparently did not receive written notice. When defendant violated the conditions of his release, he claimed that the failure to give him the requisite notice required dismissal of the order to show cause alleging the violation. The district court rejected that contention, and the Ninth Circuit affirmed. Although the court stressed the importance of complying with §§ 3583(f) and 3603(1), it held that a violation of these provisions does not automatically invalidate a defendant’s supervised release conditions. U.S. v. Ortega-Brito, 311 F.3d 1136 (9th Cir. 2002).
9th Circuit holds that modification motion cannot address illegal supervised release conditions. (580) Defendant sought modification of his supervised release conditions under 18 U.S.C. § 3583(e)(2) on the ground that they were illegal. That statute allows a court to modify supervised release conditions based on the factors specified in 18 U.S.C. § 3553(a). The Ninth Circuit held that because illegality is not one of the specified reasons for modifying a supervised release condition, a defendant cannot seek modification on that ground through a motion under § 3583(e)(2). Instead, a defendant may challenge the legality of a supervised release condition only by direct appeal, motion under 28 U.S.C. § 2255, or, within seven days of the court’s imposition of sentence, by a motion under Federal Rule of Criminal Procedure 35(c). U.S. v. Gross, 307 F.3d 1043 (9th Cir. 2002).
9th Circuit okays requiring defendant to register as state drug offender as supervised release condition. (580) Defendant was subject to a supervised release condition requiring him to notify persons of risks that might be occasioned by his criminal record. Pursuant to this condition, defendant’s probation officer ordered him to register with California state authorities under a state statute requiring the registration of certain drug offenders. The Ninth Circuit held that the probation officer’s registration order was a valid implementation of defendant’s supervised release condition, even if defendant would not have been required to register if he had been convicted under state law. U.S. v. Lawrence, 300 F.3d 1126 (9th Cir. 2002).
9th Circuit holds that Apprendi does not bar imposition of supervised release term. (580) Defendant pleaded guilty to importing marijuana, in violation of 21 U.S.C. §§ 952 and 960, and was sentenced to a mandatory term of supervised release. When he violated the terms of his supervised release, the district court revoked it and sentenced him to nine months in prison. The Ninth Circuit held that the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), does not bar a district court from imposing a term of supervised release. The court held that the mandatory supervised release term is part of the maximum sentence authorized for the offense, not an addition to the sentence for the original offense. U.S. v. Liero, 298 F.3d 1175 (9th Cir. 2002).
9th Circuit upholds search clause, but rejects supervised release conditions for child porn defendant. (580) As conditions of supervised release, defendant, convicted of possessing child pornography, was ordered not to possess any pornography or to reside in “close proximity” to places frequented by children. The Ninth Circuit held that because reasonable minds could differ over what qualified as pornography, the first condition was unreasonably vague. Likewise, the court held that the phrase “close proximity” was too vague and that the district court should specify a “precise distance limitation.” The court upheld a condition requiring defendant to submit to probation searches by any law enforcement officer. U.S. v. Guagliardo, 278 F.3d 868 (9th Cir. 2002).
9th Circuit bars possession of firearms or bows and arrows as condition of supervised release. (580) As a condition of supervised release, the district court barred defendant from possessing any firearms or other dangerous weapons, including but not limited to any bows and arrows or crossbows. On appeal, the Ninth Circuit affirmed, noting that defendant was convicted of a violent assault, which included ripping the victim’s ear from his head and breaking his nose. The presentence report disclosed that defendant had previously been convicted of several other assaults. Moreover he had killed a 500-pound bear by using a 75-pound adjustable graphite bow, and had killed five cougars using his crossbow. The court found this evidence demonstrated that defendant posed a threat to others and there was a need to protect the public from further crimes involving his use of a dangerous weapon. The condition was in accord with the recommendation in § 5D1.3(d)(1) in cases of this kind “prohibiting the defendant from possessing a firearm or other dangerous weapon.” U.S. v. Gallaher, 275 F.3d 784 (9th Cir. 2001).
9th Circuit bars restitution for Title 42 offenses, and holds false statement did not injure private victim. (580) Defendant was convicted of improperly storing and disposing of hazardous waste, in violation of 42 U.S.C. § 6928. Relying on 18 U.S.C. § 3663, the district court ordered him to pay restitution to a worker who was seriously injured during the improper waste disposal. The Ninth Circuit held that the restitution order constituted plain error because § 3663 authorizes restitution only for violations of Title 18. The indictment’s reference to the aiding and abetting statute, 18 U.S.C. § 2, did not bring the Title 42 offenses within the restitution statute. The court also held that the restitution order could not be upheld based on the defendant’s false statements conviction under 18 U.S.C. § 1001 because the worker was not a victim of that offense. Nevertheless, the panel later amended this opinion to state that the district court “may consider further amending the sentence by imposing a term of supervised release with a condition requiring restitution, pursuant to … § 5E1.1(a)(2).” U.S. v. Elias, 269 F.3d 1003 (9th Cir. 2001).
9th Circuit holds five-year supervised release term under 21 U.S.C. § 841(b)(1)(C) does not violate Apprendi. (580) Under 18 U.S.C. § 3559 (a)(3), a defendant convicted of a Class C felony is subject to a maximum of three years of supervised release. Under 21 U.S.C. § 841(b) (1)(C), however, a defendant convicted of drug offenses that fall into the definition of a Class C felony must receive “at least three years” of supervised release. In U.S. v. Garcia, 112 F.3d 395 (9th Cir. 1997), the court held that § 841’s supervised release requirements overrode the limits in § 3559 (a)(3). Here, relying on Garcia, the Ninth Circuit held that defendant’s five-year supervised release term imposed under § 841(b) (1)(C) did not violate the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), because it was within the term authorized under that provision for a conviction under 21 U.S.C. § 841(a)(1) without regard to the quantity involved in the offense. U.S. v. Barragan, 263 F.3d 919 (9th Cir. 2001).
9th Circuit allows delaying supervised release revocation hearing until defendant’s release from state custody. (580) Under 18 U.S.C. § 3583(i), the power of a district court to revoke supervised release “extends beyond the expiration of the term of supervised release for any period reasonably necessary for the adjudication of matters arising before its expiration if, before its expiration, a warrant or summons has been issued on the basis of an allegation of such a violation.” In this case, the defendant argued that the two years he spent in state custody before he was brought to federal court to execute the revocation warrant were not “reasonably necessary.” In a 2-1 opinion, the Ninth Circuit rejected the argument, holding that the “reasonably necessary” language referred only to the period after defendant is brought into federal custody. The majority said that a contrary interpretation “would be tantamount to holding that the federal government is statutorily required to writ a defendant out of state custody and bring him before the federal court for his revocation hearing.” Judge Berzon dissented, pointing out that defendant had been in state custody only a few blocks from the federal courthouse when the warrant was issued. U.S. v. Garrett, 253 F.3d 443 (9th Cir. 2001).
9th Circuit says pretrial detention on state charge did not toll supervised release term. (580) Under 18 U.S.C. § 3624(e), a defendant’s term of supervised release is tolled “during any period in which the person is imprisoned in connection with a conviction for a federal, state, or local crime.” However, in U.S. v. Morales-Allejo, 193 F.3d 1102, 1106 (9th Cir. 1999), the Ninth Circuit held that “pretrial detention does not constitute an ‘imprisonment’ within the meaning of § 3624(e) and thus does not operate to toll a term of supervised release.” In this case, defendant was arrested on June 15, 1999, but did not plead guilty to the state charges until June 28, 1999, and was not sentenced on those charges until Sept. 8, 1999. Therefore, the Ninth Circuit held that defendant’s confinement from June 15, 1999 until his supervised release term expired on June 22, 1999 was not sufficient to toll the running of the supervised release term because he was in pretrial detention during that time. U.S. v. Garrett, 253 F.3d 443 (9th Cir. 2001).
9th Circuit says court may order payment of child support as condition of supervised release. (580) Under 18 U.S.C. § 3563(b) and USSG § 5D1.3(c)(4), a district court is expressly authorized to require a defendant, as a condition of supervised release, to comply with the terms of any court order requiring payments by the defendant for the support and maintenance of a child or of a child and parent with whom the child is living. Therefore, the Ninth Circuit held that a court can require a defendant to comply with a pre-existing child support order as a condition of supervised release. However in this case, the district court abused its discretion in accelerating defendant’s back child support payments, holding that the district court’s “formulation of a repayment schedule at odds with the order of the California Superior Court qualifies as federal intervention into a ‘traditional area of state concern.’“ Judge Thomas concurred in part and dissented in part. U.S. v. Lakatos, 241 F.3d 690 (9th Cir. 2001).
9th Circuit permits modification of fine where it is an express condition of supervised release. (580) Under 18 U.S.C. § 3583(e), district courts have broad discretion to alter the conditions of a defendant’s supervised release. However, in this case the district court held that it lacked jurisdiction to modify defendant’s fine because the fine was imposed independently of the conditions for supervised release. On appeal, the Ninth Circuit disagreed, noting that “even if the original $6,000 fine was imposed by the court’s judgment, payment of $3,000, in $100 monthly installments, was nevertheless expressly made a condition of supervised release.” Therefore, “because the payment of $3,000 of [defendant’s] fine is a condition of his supervised release, § 3583(e)(2) gives the district court the power to modify that portion of the fine.” U.S. v. Miller, 205 F.3d 1098 (9th Cir. 2000).
9th Circuit allows reinstatement of supervised release after defendant violates conditions of release. (580) Shortly after he was placed on supervised release, defendant fled the state, thereby violating several conditions of his supervised release. He remained at large for almost two years. When he was finally arrested, the district court reinstated the original five-year term of supervised release, tolling the two-year period during which he was a fugitive. He appealed, claiming the district court had no authority to reinstate the original term of supervised release. The Ninth Circuit rejected the argument, noting that the Sentencing Commission had promulgated a policy statement addressing the precise issue. That statement says that when a court finds that a defendant has violated a condition of supervised release, “it may continue the defendant on supervised release, with or without extending the term or modifying the conditions.” USSG Ch. 7, Pt. A, intro. comment 2(b). This policy statement binds federal courts pursuant to 18 U.S.C. § 3553(a)(4)(B). Thus, a district court has authority under 18 U.S.C. § 3583(e) to reinstate a person’s supervised release after that person has violated the conditions of the release. U.S. v. Trenter, 201 F.3d 1262 (9th Cir. 2000).
9th Circuit upholds confinement in community treatment center for sexual deviancy as condition of supervised release. (580) The purpose of imposing conditions of supervised release is to ensure that the rehabilitative needs of the defendant are met and that the community is protected from further harm. In this case, the district court found that defendant needed treatment for his sexual deviancy and therefore determined that confinement to a community treatment center was necessary to ensure that he received that treatment. The Ninth Circuit held that this condition of supervised release served the primary goals for conditions of supervised release. Therefore it was reasonably related to the factors set forth in the statute and involved no greater deprivation than was reasonably necessary, in accordance with the dictates of 18 U.S.C. § 3583(d). U.S. v. Bahe, 201 F.3d 1124 (9th Cir. 2000).
9th Circuit permits confinement in a halfway house as condition of supervised release. (580) In authorizing a district court to impose conditions of supervised release, 18 U.S.C. § 3583(d) specifically refers to certain subsections of the probation statute, 18 U.S.C. § 3563(b). Conspicuously absent however, is any reference to subsection § 3563(b)(11), which permits a court to impose confinement in a community treatment center or halfway house as a condition of probation. Accordingly, in the present case, defendant argued that a court could not impose confinement in a community treatment center as a condition of supervised release. The Ninth Circuit rejected the argument, holding that despite the apparent clarity of the statute, the omission of subsection (11) was a “clerical error,” and “an inadvertent casualty of [the] complex drafting process” involved in enacting the mandatory Victim Restitution Act of 1996. The court thus looked behind the “plain meaning” of the statute in order to avoid an “absurd” result. U.S. v. Bahe, 201 F.3d 1124 (9th Cir. 2000).
9th Circuit holds pretrial detention does not toll a term of supervised release. (580) Under 18 U.S.C. § 3624(e), a term of supervised release is tolled “during any period in which the person is imprisoned in connection with conviction … unless the imprisonment is for a period of less than 30 consecutive days.” In a case of first impression, the Ninth Circuit held that the phrase “imprisoned in connection with a conviction” did not include pretrial detention before the defendant pled guilty to a new offense. Thus, defendant’s term of supervised release expired two weeks before the district court issued the warrant and order to show cause regarding revocation, and the district court had no jurisdiction to revoke it. U.S. v. Morales-Alejo, 193 F.3d 1102 (9th Cir. 1999).
9th Circuit holds mandatory drug testing as condition of supervised release is retroactive. (580) Defendant argued that the district court erred in using the 1997 guidelines, which required drug testing as a mandatory condition of supervised release. The 1992 guideline, based on an earlier version of 18 U.S.C. § 3583(d), allowed for discretion. Nevertheless, the Ninth Circuit found no ex post facto violation because the drug testing condition is not “punishment.” Its purpose is to protect society from the future criminal behavior of drug abusers and to identify those who need treatment. The small affirmative restraint that a drug testing requirement imposes is not excessive in relation to these protective and rehabilitative alternative purposes. The condition is mandatory unless a low risk of future substance abuse is indicated. The Ninth Circuit found no evidence that defendant had a low risk for future substance abuse, even though there was no evidence that he had abused drugs and his convictions were not drug-related. U.S. v. Jackson, 189 F.3d 820 (9th Cir. 1999).
9th Circuit says defendant was not on supervised release while on bail pending appeal. (580) Defendant argued that her term of supervised release had expired before the court revoked it, because she had completed two years of supervised release while on bail pending appeal before surrendering herself to serve a one-year prison term. The Ninth Circuit rejected this argument, because 18 U.S.C. § 3624(e) provides that “[t]he term of supervised release commences on the day the person is released from imprisonment.” Moreover, guideline § 5D1.1 authorizes, and in some cases requires, that courts impose a term of supervised release following imprisonment. The panel found this was consistent with U.S. v. Vallejo, 69 F.3d 992 (9th Cir. 1995), where the Ninth Circuit held that even though defendant had been released on bail after reversal on appeal, his supervised release did not begin until the day he was sentenced to time served plus one year of supervised release. U.S. v. Malandrini, 177 F.3d 771 (9th Cir. 1999).
9th Circuit upholds ban on sexually oriented materials as a condition of supervised release. (580) Defendant was convicted of sexually abusing a six-year old girl, in violation of 18 U.S.C. §§ 1153, 2244(a)(1) and 2246. At sentencing, the district court imposed the following conditions of supervised release: (1) that defendant not have contact with children under the age of 18 unless approved by his probation officers; (2) that he not loiter within 100 feet of schoolyards, parks, playgrounds, arcades or other places primarily used by children under the age of 18; and (3) that he not possess any sexually stimulating or sexually oriented material deemed inappropriate by his probation officer and/or treatment staff, or patronize any place where such material or entertainment is available. The Ninth Circuit rejected defendant’s argument that the third condition violated his First Amendment rights, finding it was sufficiently related to the goal of “protect[ing] the public from further crimes of the defendant.” 18 U.S.C. § 3553(a)(2) (C). The court also upheld the condition that defendant not have unapproved contact with children or loiter in places primarily used by children. U.S. v. Bee, 162 F.3d 1232 (9th Cir. 1998).
9th Circuit says court may impose a period of supervised release after probation revocation. (580) Defendant argued that the statute governing revocation of probation, 18 U.S.C. § 3565, permits a custodial sentence, but does not allow for a term of supervised release. Defendant recognized that his argument was contrary to U.S. v. Donaghe, 50 F.3d 608, 614-15 (9th Cir. 1995), but he argued that Donaghe was not controlling because § 3565 was amended in the meantime. The Ninth Circuit rejected the argument, holding that the amendment did not affect the district court’s ability to impose a term of supervised release after revoking probation. The amendment was intended to allow the court after revoking probation to sentence defendant to any statutorily permitted sentence. U.S. v. Vasquez, 160 F.3d 1237 (9th Cir. 1998).
9th Circuit upholds drug testing as a mandatory condition of supervised release. (580) Defendant argued that it was inappropriate for the district court to require him to undergo drug testing as a condition of supervised release because he had no history of drug abuse and his crime was not drug related. The Ninth Circuit rejected the argument, noting that under 18 U.S.C. § 3583(d) drug testing is a mandatory condition of supervised release. The statute permits the district court to suspend the drug testing conditions if the defendant’s presentence report or other reliable sentencing information indicates a low risk of future substance abuse by the defendant. 18 U.S.C. § 3563(a)(5) However, the district court was not required to suspend the mandatory conditions of 3583(d) because the evidence did not support a finding that defendant was a low risk of future substance abuse. U.S. v. Carter, 159 F.3d 397 (9th Cir. 1998).
9th Circuit affirms alcohol testing, drug treatment program, and prescription drug restrictions as conditions of supervised release. (580) There was evidence that defendant had attempted suicide by overdosing on migraine medication. Moreover, the district court noted that defendant’s behavior had been unstable. Accordingly, even though defendant had no history of drug or alcohol abuse, the Ninth Circuit held that the district court could reasonably conclude that requiring defendant to undergo drug treatment and abstain from alcohol and abusing prescription medication would be beneficial both to defendant and to society. U.S. v. Carter, 159 F.3d 397 (9th Cir. 1998).
9th Circuit upholds condition of supervised release requiring defendant to follow therapist’s “life style restrictions.” (580) Defendant was convicted of possessing child pornography. He was also convicted in state court of child molestation. The district court imposed several conditions of supervised release, including requiring defendant to participate in a sexual offender treatment program. Defendant challenged the condition that required him to “follow all other life style restrictions or treatment requirements imposed by defendant’s therapist.” Defendant argued that this condition was too broad and improperly delegated judicial authority. The Ninth Circuit rejected the argument, finding the restrictions “eminently reasonable.” “The court cannot be expected to design and implement the particularities of a treatment program.” U.S. v. Fellows, 157 F.3d 1197 (9th Cir. 1998).
9th Circuit says stricter conditions of release on resentencing did not violate double jeopardy. (580) Defendant argued that the district court violated double jeopardy by imposing stricter conditions of release at resentencing than had been originally imposed. The Ninth Circuit rejected the argument, reiterating that “a resentencing mandate from an appellate court . . . does away with the entire initial sentence, and authorizes the district court to impose any sentence which could lawfully have been imposed originally . . . double jeopardy is not implicated.” U.S. v. Moreno-Hernandez, 48 F.3d 1112, 1116 (9th Cir. 1995). Thus, the district court was free to impose the additional conditions of supervised release. U.S. v. Allen (98-30002), 153 F.3d 1037 (9th Cir. 1998).
9th Circuit permits supervised release under Assimilative Crimes Act beyond state maximum. (580) The Ninth Circuit joined all other circuits in holding that when a defendant is convicted under the Assimilative Crimes Act, 18 U.S.C. § 13, the total sentence (comprised of a term of incarceration and a period of supervised release) may exceed the term of imprisonment allowed under the assimilated state law, in order to further the federal policy of supervised release. In the present case, defendant was convicted under the Assimilative Crimes Act of forgery and negotiating a worthless instrument in violation of Hawaii state law. She was sentenced to four months imprisonment and one year of supervised release on each count concurrently. This exceeded the maximum sentence allowed under Hawaii law (one year, or probation up to one year), but it was proper under the Federal Assimilative Crimes Act. U.S. v. Rapal, 146 F.3d 661 (9th Cir. 1998).
9th Circuit says supervised release term in drug statute trumps general statute. (580) Defendant was sentenced to a five-year term of supervised release, as permitted by 21 U.S.C. § 841(b). In his revocation hearing, he argued that his supervised release term should not have exceeded three years, because his crime was a Class C felony under 18 U.S.C. § 3559(a)(3) and the maximum term of supervised release for a Class C felony is three years under 18 U.S.C. § 3583(b)(2). The Ninth Circuit found no merit in this argument, agreeing with the Second Circuit’s decision in U.S. v. Eng, 14 F.3d 165, 172 (2d Cir.), cert. denied, 115 S.Ct. 64 (1994). Section 3583(b) specifically provides that its maximums apply unless other statutes provide otherwise, and 21 U.S.C. § 841(b) does provide otherwise. The panel noted that the Sentencing Commission amended guideline § 5D1.2 in November, 1995 in an apparent attempt to relieve the tension between these statutes. U.S. v. Garcia, 112 F.3d 395 (9th Cir. 1997).
9th Circuit permits retroactive amendment to be used to reduce supervised release. (580) Defendant was convicted of conspiracy to manufacture and distribute more than fifty marijuana plants. After completing his sentence, he was placed on supervised release. He violated the terms of his supervised release and was sentenced to seven months in prison. On November 1, 1995, while he was serving his seven months, the Commission adopted retroactive amendment 516, reducing the marijuana plant equivalency from 1 kilo to 100 grams of marijuana. Defendant filed a motion to reduce his sentence under Guideline §1B1.10 and 18 U.S.C. §3582(c)(2), and the court reduced the seven-month term to time served. On appeal, the Ninth Circuit affirmed. The court rejected the government’s argument that §3582(c) does not authorize a reduction in the sentence for a supervised release violation. Under U.S. v. Paskow, 11 F.3d 873, 881 (9th Cir. 1993), a term of supervised release is “simply part of the whole matrix of punishment which arises out of a defendant’s original crimes.” In light of Paskowl and Koon v. U.S., 518 U.S. 81, 116 S.Ct. 2035 (1996), the statute’s directive to “reduce the term of imprisonment” extends to the entirety of the original sentence, including the term of imprisonment imposed on revocation of supervised release. Judge T. G. Nelson dissented. U.S. v. Etherton, 101 F.3d 80 (9th Cir. 1996).
9th Circuit says supervised release does not run while defendant is imprisoned on another charge. (580) Under 18 U.S.C. § 3624(e) a “term of supervised release does not run during any period in which the person is imprisoned in connection with a conviction for a federal, state or local crime unless the imprisonment is for a period less than 30 consecutive days.” Thus, defendant’s supervised release term did not begin when he completed his underlying sentence, but instead began almost a year later, when he was released from confinement on another charge. U.S. v. Schmidt, 99 F.3d 315 (9th Cir. 1996), overruled on other grounds by U.S. v. Palomba, 182 F.3d 1121 (9th Cir. 1999).
9th Circuit says supervised release term began at sentencing, not at earlier release on bail. (580) After defendant’s sentence was reversed on appeal, he was released on bail in November, 1992. Eight months later, in June, 1993, he pled guilty to a lesser charge and was sentenced to “time served” plus one year of supervised release. In February, 1994, defendant violated his supervised release when he committed a series of state offenses. The district court revoked his supervised release and sentenced him to a year in prison. On appeal, defendant argued the district court had no jurisdiction because his supervised release term began in November, 1992, the day he was released on bail. The Ninth Circuit rejected the argument, noting that defendant was not subject to the conditions of supervised release while he was free on bail and therefore that time did not serve the goals of the supervised release statute, 18 U.S.C. §3624(e). His term began the day he was sentenced. U.S. v. Vallejo, 69 F.3d 992 (9th Cir. 1995).
9th Circuit retroactively applies “clarifying” amendment to reduce sentence even though it changed substantive law of circuit. (580) The Ninth Circuit, in U.S. v. Shorthouse, 7 F.3d 149 (9th Cir. 1993), superseded by rule as stated in U.S. v. Sanders, 67 F.3d 855 (9th Cir. 1995), held that the Commentary to § 5G1.2 permitted consecutive terms of supervised release. Thereafter, effective November 1, 1994, the Commission amended the Commentary to note that under 18 U.S.C. § 3624(e) “any term of supervised release imposed is to run concurrently with any other term of supervised release imposed.” In the present case, the court noted that although this was a “clarifying” amendment, it also had the effect of changing the substantive law of the Ninth Circuit as stated in Shorthouse. Ordinarily, this means that the amendment will not be applied retroactively. In this case, however, the court said the ex post facto clause was not implicated because applying the amendment would not increase defendant’s sentence but would decrease it. Accordingly, the majority applied the amendment retroactively. Judge Fernandez dissented. U.S. v. Sanders, 67 F.3d 855 (9th Cir. 1995).
9th Circuit reverses order to repay CJA attorney’s fees as a condition of supervised release. (580) The district court conditioned defendant’s supervised release upon his repaying the government for CJA funds expended to pay for his attorney under 18 U.S.C. § 3006A(f). The Ninth Circuit noted that in the context of probation, the courts have reached conflicting positions based on different interpretations of the probation statute. However, the range of permissible supervised release conditions is “narrower than the range of permissible probation conditions.” A district court can impose probation conditions that are punitive, but “just punishment is not a criterion for supervised release conditions.” Compare 18 U.S.C. § 3563(b) with 18 U.S.C. § 3883(d)(1). The Ninth Circuit found that the recoupment order bore no relationship to any of the statutory criteria. It was not related to defendant’s criminal conduct and had no rehabilitative effects. It did not protect the public from future crimes or provide defendant with any treatment. Therefore the order to repay CJA attorneys fees as a condition of supervised release was stricken. U.S. v. Eyler, 67 F.3d 1386 (9th Cir. 1995).
9th Circuit says extension of supervised release cannot exceed maximum originally imposable term. (580) In Rodriguera v. U.S., 954 F.2d 1465, 1468 (9th Cir. 1992), and U.S. v. Sanclemente-Bejarano, 861 F.2d 206, 208 (9th Cir. 1988), the Ninth Circuit held that a term of supervised release can be extended, potentially to a life term. However those cases involved offenses committed before the sentencing guidelines became effective and did not discuss whether an extension under 18 U.S.C. § 3583(e)(2) could exceed the maximum originally imposable term. Accordingly, the Ninth Circuit distinguished the above cases and held, in harmony with the Fourth and Eleventh Circuits, that an extension of supervised release cannot exceed the maximum originally imposable term. In the present case, defendant’s supervised release term could be extended only to a maximum of five years, with three additional years of imprisonment if his supervised release were revoked. Thus any error in failing to advise him at the time of his plea of the effect of a term of supervised release was harmless because he was told that he could be sentenced to 40 years in custody. U.S. v. Fuentes-Mendoza, 56 F.3d 1113 (9th Cir. 1995).
9th Circuit holds juvenile delinquent may not be sentenced to supervised release. (580) The Juvenile Delinquency Act, 18 U.S.C. §5037(a) offers four sentencing alternatives for adjudicated juvenile delinquents: (1) a suspended finding of delinquency; (2) restitution; (3) probation; or (4) official detention. Nothing in the act authorizes supervised release as a sentencing option. Accordingly, it was error for the district court to place the juvenile in this case on supervised release, and to revoke the supervised release and sentence him to a four year prison term. The order was vacated and the case remanded to correct defendant’s sentence. U.S. v. Doe, 53 F.3d 1081 (9th Cir. 1995).
9th Circuit says if objection to supervised release was waived, the government “waived” the waiver. (580) Defendant did not challenge the court’s ability to impose a term of supervised release until after his supervised release had been revoked. The court of appeals suggested that this may have constituted a waiver of the issue. Nevertheless, the court noted that “waiver does not divest the court of jurisdiction it otherwise enjoys,” and that “waiver is a creature of judicial policy, informed in this purely federal context by concerns of fairness, finality, and economy.” Generally, the court will not address waiver if not raised by the opposing party. Here, the government did not argue waiver in its briefs or at oral argument, and specifically urged the court to reach the merits of the appeal. Under these circumstances, the court concluded that the government “waived” any waiver argument it may have had, and therefore the court addressed the merits of defendant’s claim. U.S. v. Doe, 53 F.3d 1081 (9th Cir. 1995).
9th Circuit orders supervised release in Assimilative Crimes Act case. (580) The Assimilative Crimes Act, 18 U.S.C. § 13, requires a defendant to receive convicted of a state crime on a federal enclave to receive a “like punishment” to what he would have received if he had been convicted in state court. Defendant was convicted of driving under the influence on a Hawaii military reservation. The magistrate sentenced him to four months in custody followed by six months supervised release. The district court vacated the supervised release, on the ground that supervised release was not an available sentence in state court. On appeal, the Ninth Circuit reversed, holding that probation is available in state court, and supervised release and probation have similar goals, thus constituting “like punishment” under the Assimilative Crimes Act. U.S. v. Reyes, 48 F.3d 435 (9th Cir. 1995).
9th Circuit permits court to add conditions of supervised release after sentencing. (580) At sentencing, the district court forgot to mention the conditions of supervised release. Although the formal entry of the judgment was delayed at defendant’s request, the court did not modify the sentence until more than seven days after the original oral pronouncement. Defendant argued that this violated Rule 35(c) which limits the time for correcting a sentence to seven days after “the imposition of sentence.” The 9th Circuit found it unnecessary to decide whether the delay in the entry of judgment made the modification timely under Rule 35, because 18 U.S.C.§3583(e)(2) permits a district court to “modify, reduce, or enlarge the conditions of supervised release, at any time prior to expiration or termination of the term of supervised release.” Since the court complied with the terms of this statute, the modification was proper without regard to the time limits in Rule 35. U.S. v. Navarro-Espinosa, 30 F.3d 1169 (9th Cir. 1994).
9th Circuit says Class C felony is limited to three years of supervised release. (580) Since defendant’s offense carried a maximum term of imprisonment of fifteen years, it was a Class C felony under 18 U.S.C. § 3559(a)(3). A defendant convicted of a Class C felony may be sentenced to no more than three years of supervised release. 18 U.S.C. § 3583(b)(2). Thus the five year term imposed by the district court was plain error. U.S. v. Guzman-Bruno, 27 F.3d 420 (9th Cir. 1994).
9th Circuit rejects argument that supervised release should have been “wedged” between prison sentences. (580) Defendant argued that his supervised release term should have been wedged in between his prison time on the drug sentence and his consecutive five year sentence on the gun charge. The 9th Circuit rejected the argument, noting that the purposes of consecutive sentencing under 18 U.S.C. section 924(c) would be ill-served by permitting a defendant to go free on supervised release before serving a consecutive sentence. U.S. v. Steward, 16 F.3d 317 (9th Cir. 1994).
9th Circuit says failure to advise of supervised release at time of plea required sentence to be vacated. (580) At the time of his plea, the judge told defendant that he faced a statutory maximum sentence of 20 years, but mentioned nothing about supervised release. Before he was sentenced, the Supreme Court upheld the constitutionality of the sentencing guidelines, and accordingly at sentencing, the defendant received the twenty year maximum plus a three year term of supervised release. On appeal, the 9th Circuit held that this violated Rule 11, Fed. R. Crim. P., vacated the sentence, and remanded with instructions either to delete the three year term of supervised release or to allow defendant to replead. U.S. v. Roberts, 5 F.3d 365 (9th Cir. 1993).
9th Circuit holds that amendment requiring supervised release did not apply before 1988. (580) Effective November 18, 1988, the drug conspiracy statute, 21 U.S.C. §846, was amended so conspirators would get the same penalties, including a mandatory term of supervised release, as people who commit the underlying offense under §841. Nonetheless, in a footnote, the 9th Circuit held that applying the amended version of §846 to offenses committed before its effective date, would violate the Ex Post Facto Clause. U.S. v. Roberts, 5 F.3d 365 (9th Cir. 1993).
9th Circuit says release from imprisonment did not moot appeal where it could affect supervised release. (580) While this appeal was pending, the defendant completed her term of imprisonment and was released. However, the 9th Circuit held that her appeal, seeking credit against her sentence for 7 months spent under house arrest prior to trial was not moot because the appellate court decision could affect her two-year term of supervised release. Fraley v. U.S. Bureau of Prisons, 1 F.3d 924 (9th Cir. 1993).
9th Circuit says conditions of supervised release need not be related to circumstances of offense. (580) Defendant pled guilty to possessing five or more identification documents with intent to use them unlawfully. As a condition of supervised release, the court required him to participate in a drug treatment program, abstain from the use of alcohol and to participate in a mental health program. Defendant challenged these conditions on the ground that they were not reasonably related to “the nature and characteristics of his offense” as set forth in U.S.S.G. section 5D1.3(b). The 9th Circuit rejected the argument, holding that supervised release conditions need not be related to the offense of conviction, as long as they satisfy the other factors in the guideline, including the need to protect the public and to provide the defendant with needed medical care. The defendant’s long history of substance abuse and violent aggression and prior diagnosis as having a personality disorder amply justified the conditions of supervised release. U.S. v. Johnson, 998 F.2d 696 (9th Cir. 1993).
9th Circuit reverses revocation of supervised release where defendant was not allowed to retest urine samples. (580) The district court revoked defendant’s supervised release and sentenced him to one third of the term as required by 18 U.S.C. section 3583(g) for possessing a controlled substance. The only evidence consisted of two laboratory urinalysis reports showing the presence of methadone and cocaine metabolites. The due process requirements of Morrissey v. Brewer, 408 U.S. 471 (1972) and Gagnon v. Scarpelli, 411 U.S. 778 (1973), are incorporated in Fed. R. Crim. P. 32.1, which applies to supervised release revocation. This includes the “right to confront and cross examine adverse witnesses” unless the hearing officer specifically finds good cause for not allowing confrontation. Here, the defendant’s right of confrontation outweighed the government’s good cause for denying it. The laboratory results were uniquely important. The revocation of supervised release was reversed and the case was remanded for further proceedings. U.S. v. Martin, 984 F.2d 308 (9th Cir. 1993).
9th Circuit upholds revocation of both probation and supervised release for same act. (580) While on supervised release for a theft offense, defendant was sentenced to probation for escape and placed in a community treatment center. when he walked away from the community treatment center both his supervised release and his probation were revoked, and he was given consecutive sentences. The 9th Circuit rejected defendant’s argument that this constituted double jeopardy. Defendant “was not directly prosecuted for [the act of walking away] at all.” “Although the violating act underlying revocation was the same in both cases, the punishment was for the conduct underlying the original convictions. This does not violate double jeopardy.” U.S. v. Clark, 984 F.2d 319 (9th Cir. 1993).
9th Circuit says supervised release guidelines are consistent with Sentencing Reform Act. (580) After receiving a sentence of 15 months and a two year term of supervised release, defendant challenged the mandatory nature of the supervised release guidelines on the basis that the Sentencing Reform Act permits an optional term of supervised release. The 9th Circuit rejected the challenge, finding that section 5D1.1 and section 5D1.2 can be read consistently with 18 U.S.C. section 3583, the statute authorizing terms of supervised release. The trial judge is permitted to depart from the mandatory supervised release term set forth in the guidelines. Here, the trial judge simply declined to exercise his discretion to depart. The mandatory terms of supervised release are not contrary to congressional intent because even assuming that the length of supervision should depend on the defendant’s need for supervision and not the length of the original prison term, the trial judge does have authority to depart. U.S. v. Chinske, 978 F.2d 557 (9th Cir. 1992).
9th Circuit finds supervised release conditions were reasonably related to offense. (580) As a condition of supervised release, the district court ordered the defendant not to possess any firearms, to participate in a substance abuse treatment program, to submit to a search upon request by the probation officer and to pay a fine on a schedule to be determined by the probation office. The court imposed these conditions after finding that the defendant had supported himself by growing and selling marijuana for profit for at least five years. Both the special and standard conditions were valid and reasonably related to the nature and circumstances of the offense and the need to deter future criminal conduct. U.S. v. Chinske, 978 F.2d 557 (9th Cir. 1992).
9th Circuit remands where plea stipulation required choice between honesty to defendant and disclosure to Parole Commission. (580) The plea agreement stipulated that the quantity of cocaine was less than 5 kilos, that there would be no minimum mandatory sentence, and the sentence would be “paroleable.” However, the presentence report accurately stated that the scheme involved more than 18 kilograms of cocaine. To avoid the discrepancy in the amount of drugs, the district court ordered the PSR to be amended before it was sent to the U.S. Parole Commission. Nevertheless, both versions of the PSR were received by the Parole Commission, which asked the AUSA to explain the discrepancy. The AUSA responded that 18 kilograms was the correct amount, and said the government would oppose parole. On appeal, the 9th Circuit expressed its disappointment that “the government may have placed itself between the rock of disclosure to the Parole Commission and the hard place of honesty in its dealings with the defendant.” The court found the plea agreement ambiguous, and remanded the case for the district court to decide what obligations the agreement imposed on the government. U.S. v. Anderson, 970 F.2d 602 (9th Cir. 1992), amended, 990 F.2d 1163 (1993).
9th Circuit upholds six year supervised release term despite five year limit in section 5D3.2(a). (580) Defendant argued that the district court erred in sentencing him to six years of supervised release under the Anti Drug Abuse Act of 1986 (ADAA), 21 U.S.C. section 841(b)(1)(C). He pointed out that section 5D3.2(a) of the Sentencing Guidelines establishes a maximum of five years of supervised release. The 9th Circuit rejected the argument, noting that the ADAA contains no maximum term of supervised release, and in Gozlon-Peretz v. U.S., 111 S.Ct. 840, 848-49 (1991), the Supreme Court held that the ADAA authorizes supervised release for narcotics offenses occurring between October 27, 1986, and the effective date of the Sentencing Guidelines, November 1, 1987. Since the defendant’s offense occurred during this period, the ADAA-mandated time period for supervised release applied. U.S. v. Anderson, 970 F.2d 602 (9th Cir. 1992), amended, 990 F.2d 1163 (1993).
9th Circuit holds robberies committed forty minutes apart were separate offenses under Armed Career Criminal Act. (580) The Armed Career Criminal Act, 18 U.S.C. section 924(e), requires a fifteen year minimum sentence for the illegal possession of a firearm if the defendant has three prior convictions for violent felonies or serious drug offenses. The prior offenses must be “committed on occasions different from one another.” In this case, defendant robbed a 7-11 market in Downey, California at 9:45 p.m. and a Winchell’s Donut House in Bellflower, California at 10:25 p.m. The district court, “struck by the harshness of the statute’s application to a defendant who may have experienced one bad night,” held that the two robberies amounted to one prior offense. On appeal, the 9th Circuit held that the prior convictions “arose from two separate and distinct criminal episodes,” and required a fifteen year minimum sentence. U.S. v. Antonie, 953 F.2d 496 (9th Cir. 1991).
9th Circuit holds that supervised release provision applies to offenses committed after November 1, 1987. (580) Petitioner argued that since 21 U.S.C. § 846 did not provide for a term of supervised release in addition to his prison sentence, the supervised release term was improper. The 9th Circuit rejected the argument, agreeing with the 2nd, 5th, 7th and 11th Circuits that because the petitioner was sentenced for a class B felony for a violation occurring after November 1, 1987, “the district court had discretion to sentence him up to a 60 month term of supervised release. See 18 U.S.C. sections 3583(a) and (b).” U.S. v. Schanning, 941 F.2d 807 (9th Cir. 1991).
9th Circuit upholds condition of supervised release barring defendant from participation in motorcycle clubs. (580) As a special condition of defendant’s supervised release, the district court directed that he “not participate in the activities, or be a member of any motorcycle clubs, including but not limited to the Dirty Dozen.” Defendant argued that this condition impermissibly restricted his freedom of association. The 9th Circuit rejected the argument, ruling that the sentencing judge, in his broad discretion, could properly have concluded that the defendant “was more likely to relapse into crime if he returned to his prior associations.” U.S. v. Bolinger, 940 F.2d 478 (9th Cir. 1991).
9th Circuit reaffirms supervised release guidelines as consistent with intent of Congress. (580) Defendant claimed that § 5D1.1(a) of the guidelines which requires supervised release when a sentence of more than one year is imposed, is contrary to the intent of Congress. He made the same claim with respect to § 5D1.2, which establishes mandatory minimum terms of supervised release. The 9th Circuit noted that these arguments had been recently rejected. U.S. v. Mondello, 927 F.2d 1463 (9th Cir. 1991).
9th Circuit holds that mandatory supervised release for felonies does not violate Congressional mandate. (580) Defendant argued that the Sentencing Commissions’ requirement of mandatory supervised release following incarceration for any person convicted of a felony violates its Congressional mandate under 28 U.S.C. § 994(a)(1)(C). The 9th Circuit rejected the argument, noting that Congress did not specify whether the Commission was to create a discretionary structure, a quasi discretionary structure, or a mandatory structure. Accordingly the Commissions’ establishment of mandatory supervised release “while not particularly magnanimous,” was “sufficiently reasonable.” U.S. v. Martinez-Cortez, 924 F.2d 921 (9th Cir. 1991).
9th Circuit holds that custodial sentence plus supervised release may exceed statutory maximum. (580) Relying on recent circuit precedent, the 9th Circuit held that “a sentencing judge is free to impose a period of supervised release regardless of the length of time of the defendant’s prison term.” U.S. v. Doering, 909 F.2d 392 (9th Cir. 1990).
9th Circuit holds that supervised release term may extend beyond the statutory maximum. (580) Defendant argued that his sentence was illegal because his one year term of supervised release extended his total punishment beyond the statutory maximum for the underlying offense. Judges Hall, Hug and Wiggins rejected the argument, noting that 18 U.S.C. § 3583(a) authorizes a term of supervised release in addition to a maximum term of imprisonment. U.S. v. Montenegro-Rojo, 908 F.2d 425 (9th Cir. 1990).
9th Circuit holds that supervised release can be added to maximum prison term. (580) Defendant argued that supervised release was part of the sentence, and therefore the total sentence, including a term of supervised release, could not exceed the statutory maximum, 5 years. The 9th Circuit rejected the argument, holding that 18 U.S.C. § 3583(a) “allows the court to impose a term of supervised release after imprisonment.” Since supervised release is not imprisonment, it was proper for the court to impose five years of imprisonment followed by a three year term of supervised release. U.S. v. Robertson, 901 F.2d 733 (9th Cir. 1990).
9th Circuit holds that supervised release provision for drug offenses took effect October 27, 1986. (580) Correcting their earlier opinion, the 9th Circuit held that – for drug offenses under 21 U.S.C. § 841(b)(1)(A) – the “supervised release” provisions of the 1986 amendments to the Comprehensive Crime Control Act took effect on October 27, 1986. This is so even though other amendments did not take effect until November 1, 1987. Thus, since the defendant’s sentence was imposed after October 27, 1986, the district court properly imposed a term of supervised release. However, as stated in the earlier opinion, no statutory authorization existed after October 12, 1984, for a special parole term for a drug related offense involving more than 5 kilograms of cocaine. U.S. v. Torres, 880 F.2d 113 (9th Cir. 1989).
10th Circuit finds defendant waived challenge to special condition of release. (580) Defendant challenged a special condition of supervised re¬lease banning his use of a computer without prior permission. The government argued that defendant invited the alleged error by arguing that the ban on the use of a computer would justify a lesser sentence. The Tenth Circuit was not persuaded that defendant invited the alleged error. Counsel was merely recognizing that the district court was already planning to impose a ban on internet use, and contended that because of the ban, a lesser sentence was warranted. However, the panel ruled that defendant waived his challenge to the special condition. At the end of sentencing, the court acknowledged that defense counsel would ob¬ject to the special conditions regarding the use of cam¬eras and the use of computers. Counsel then objected to the ban on the use of a camera, but made no objection to the ban on the use of a computer. Defendant did not merely forget to object to the computer condition. Rather, he deliberately thought about the argument, used it to argue in favor of a lesser sentence, and then chose not to object to it at the end of sentencing even after the court stated it believed defendant would object. This amounted to an intentional abandonment of the issue. U.S. v. Morrison, __ F.3d __ (10th Cir. Nov. 13, 2014) No. 13-7051.
10th Circuit upholds ban of use of a camera as special condition of supervised release. (580) Defendant pled guilty to possession of child pornography. He challenged on appeal a special condition of supervised release banning his use of a camera. He argued that the ban was not reasonably related to his offense conduct, criminal history, or his characteristics. The Tenth Circuit found no abuse of discretion. Although defendant did not use a camera in committing his offense, other courts have up¬held an almost identical condition of supervised release, even where the defendant did not use a camera in the child porn offense. Here, the fact that defendant possessed over 20,000 images of child pornography made it reasonable to believe that he might use a camera in the future for such purposes. The prohibition did not involve a greater deprivation of liberty than reasonably necessary. Significantly, the special condition did not completely ban defendant from using a camera because he could do so with permission from his probation officer. U.S. v. Morrison, __ F.3d __ (10th Cir. Nov. 13, 2014) No. 13-7051.
10th Circuit says it could not grant sentencing relief to defendant already released from prison. (580) Defendant was convicted of charges stemming from his failure to file a tax return for 2001. He challenged the court’s calculation of tax loss on appeal. However, at the time of the appeal, he had already completed his prison sentence. Counsel suggested that the claim was not moot, and that the court could shorten defendant’s term of supervised release through some sort of declaration that the prison sentence defendant served had been too long and the excess prison sentence should be credited against the length of defendant’s term of supervised release. The Tenth Circuit ruled that it could not grant such relief. Section 3624(e) of Title 18 provides that a prisoner’s “term of supervised release commences on the day the person is released from imprisonment.” In U.S. v. Johnson, 529 U.S. 53 (2000), the Supreme Court interpreted this statute to mean that a term of supervised release begins on the day someone is released from prison, regardless of whether the person was released after serving too much time. Moreover, even if defendant were still incarcerated for his original failure-to-file conviction, the record was insufficient to properly understand his challenge to his sentence. U.S. v. Brody, 705 F.3d 1277 (10th Cir. 2013).
10th Circuit rejects occupational restriction for deer poacher. (580) Defendants sold guided deer hunts to out-of-state hunters, and encouraged their clients to violate state hunting laws. They pled guilty to conspiring to sell and transport poached deer in violation of the Lacey Act, 16 U.S.C. §§ 3372(a)(2)(A) and 3373(d). The district court imposed special conditions of supervised release on one defendant, preventing him from hunting, fishing, or trapping wildlife. The Tenth Circuit vacated this occupational restriction. Since 2006, defendant had worked as the business manager of a commercial deer operation owned by a third party. The restrictions imposed would have prevented him from continuing in this position or others similar to it. The sentencing record was devoid of any finding that the “occupational restriction [was] the minimum restriction necessary.” U.S. v. Butler, 694 F.3d 1177 (10th Cir. 2012).
10th Circuit finds appeal from sentence modification was not barred by waiver. (580) Defendant pled guilty to engaging in a sexual act with a minor in Indian Country. As part of his plea agreement, defendant waived his right to appeal his sentence. One week before defendant was due to complete his prison sentence and begin serving supervised release, the Probation Office filed an ex parte petition seeking to modify defendant’s conditions of supervised release to include two additional special conditions, including a condition restricting his contact with children under the age of 18. The Tenth Circuit held that defendant’s appeal of the modification of his supervised release conditions did not fall within the scope of the waiver of appeal in his plea agreement. Construing defendant’s waiver narrowly and against the government, the waiver of “the right to appeal any sentence” could reasonably be understood to encompass only a waiver of the right to appeal the sentence that was imposed at sentencing and memorialized in the judgment of conviction. U.S. v. Lonjose, 663 F.3d 1292 (10th Cir. 2011).
10th Circuit reverses condition limiting defendant’s association with underage male family members. (580) Defendant pled guilty to engaging in a sexual act with a minor in Indian Country. He challenged a condition of supervised release barring him from contact with children under the age of 18, without prior written permission of the probation officer. He argued that the condition was overly broad and infringed on his right to familial association with his six-year-old son and other minor male relatives. The Tenth Circuit held that the district court lacked compelling circumstances to justify limiting defendant’s contact with underage male family members. Defendant’s conviction was based on sexual encounters with an underage female. The additional evidence the court considered also involved improper sexual contact with an underage female. There was no evidence indicating that defendant was a danger to underage boys. Thus, there was no compelling need to interfere with defendant’s fundamental right of familial association as it pertained to male relatives. U.S. v. Lonjose, 663 F.3d 1292 (10th Cir. 2011).
10th Circuit declines to exercise jurisdiction to consider challenge to condition of supervised release. (580) The district court ordered, as a condition of supervised release, that defendant “notify third parties of risks that may be occasioned by [his] criminal record.” A similar supervised release condition was held to be an occupational restriction that may not be imposed unless the sentencing court first finds that it comports with § 5F1.5. Defendant argued for the first time on appeal that the court imposed this condition without making the required findings. The Tenth Circuit found that defendant failed to show he would suffer any hardship if his appeal was dismissed on prudential grounds. The challenged condition would have no impact on him unless he was released into the United States after his term of incarceration was completed. The district court ordered removal proceedings to begin during the term of incarceration, and defendant presented no convincing argument that he would not be taken into ICE custody upon his release from prison and immediately deported. Further, he failed to convince the court he would obtain the Attorney Genera’s permission to remain in the country, or return with permission, while the two-year term of supervised release was in effect. Defendant also did not give the court any reason to believe he would be able to obtain lawful employment in the country even if released from prison custody. Defendant did not show any practical possibility he would ever legally be in a position to violate the terms of the challenged condition. U.S. v. Vaquera-Juanes, 638 F.3d 734 (10th Cir. 2011).
10th Circuit remands to clarify scope of computer monitoring restrictions. (580) Defendant pled guilty to assault. The district court ordered, as a condition of supervised release, that defendant’s computer use be monitored in a variety of ways. The Tenth Circuit rejected defendant’s claims that the court did not make sufficient findings in support of the computer monitoring condition, or that the condition was not reasonably related to his history and characteristics. However, the court agreed with defendant that the condition was problematic because it did not specify to which computers the restrictions applied. The condition could be read by a probation officer to apply not only to computers that defendant owned, but to computers owned by others, including defendant’s employers. The court remanded these computer monitoring conditions to the district court to clarify their scope. U.S. v. Mike, 632 F.3d 686 (10th Cir. 2011).
10th Circuit says court cannot delegate to probation officer decisions about residential treatment or penile plethysmographs. (580) Defendant challenged a condition of supervised release mandating sex offender treatment and testing, arguing that it improperly delegated to the probation officer the discretion to decide whether he would be subject to inpatient treatment or penile plethysmographic testing. The Tenth Circuit, following the Ninth Circuit’s approach to focusing on the liberty interest implicated, agreed that granting the probation officer the discretion to decide whether such conditions will be imposed was tantamount to allowing him to decide the nature or extent of the defendant’s punishment. Any condition that affects a significant liberty interest, such as one requiring the defendant to participate in residential treatment, must be imposed by the district court and supported by particularized findings that it does not constitute a greater deprivation of liberty than reasonably necessary to accomplish the goals of sentencing. However, the condition here did not explicitly state that the probation officer had discretion to force defendant to participate in residential treatment or say that plethysmographic testing was an option. Thus, the court construed the condition as not delegating this authority to the probation officer, and upheld the condition as proper. U.S. v. Mike, 632 F.3d 686 (10th Cir. 2011).
10th Circuit says prohibiting contact with children was occupational restriction requiring additional findings. (580) Based on a previous sex offense conviction, the district court included as a condition of supervised release a prohibition against any contact with children. The Tenth Circuit rejected defendant’s argument that the condition was vague and overbroad. The panel agreed with the Third Circuit’s interpretation of a similar condition in U.S. v. Loy, 237 F.3d 251 (3d Cir. 2001), that “associational conditions do not extend to causal or chance meetings.” However, the panel agreed with defendant that the condition constituted an occupational restriction, since it clearly prohibited defendant from engaging in occupations where he would have direct access to children. As such, the court was required to make findings that there was a reasonably direct relationship between defendant’s occupation and the offense of conviction, and the restriction was reasonably necessary to protect the public. Since the court failed to make such findings, the case was remanded. U.S. v. Mike, 632 F.3d 686 (10th Cir. 2011).
10th Circuit construes medication requirement to apply only to conditions related to mental health program. (580) The district court ordered a number of supervised release conditions relating to defendant’s status as a sex offender, including a requirement that he participate in a mental health program as directed by the probation officer, which might include taking prescribed medication. Relying on U.S. v. Cope, 527 F.3d 944 (9th Cir. 2008), defendant argued that the requirement that he should take all prescribed medication was overbroad because it was not clearly limited to medications that were reasonably related to sex offender treatment. The Tenth Circuit found Cope unpersuasive. Viewing the medication requirement in the context in which it was placed, the panel found that the condition only required defendant to take those medications that were related to his mental health programs. U.S. v. Mike, 632 F.3d 686 (10th Cir. 2011).
10th Circuit upholds ban on possessing sexually explicit material. (580) The district court ordered a number of supervised release conditions relating to defendant’s status as a sex offender, including a requirement not to possess any sexually explicit material. The Tenth Circuit rejected defendant’s argument, raised for the first time on appeal, that the condition was unrelated to his criminal history and was overly broad. The circuits are split on whether such a ban is permissible where there is no evidence that the defendant possessed pornographic material in the past. In light of this split, and defendant’s background, the Tenth Circuit declined to hold that the ban on possessing sexually explicit material was not reasonably related to the sentencing factors. The panel also rejected defendant’s argument that the condition was too broad, and could be interpreted to bar him from materials like his PSR, which discussed his previous sexual assault, writings required for his sex offender treatment, and adult porn. This interpretation, similar to one adopted by the Ninth Circuit in U.S. v. Cope, 527 F.3d 944 (9th Cir. 2008), was “overly technical.” Instead, the court applied a more “commonsense” approach to find that the condition did not apply to defendant’s PSR or any writings that were part of his treatment. U.S. v. Mike, 632 F.3d 686 (10th Cir. 2011).
10th Circuit upholds requiring defendant to release evaluation results to probation officer. (580) As a condition of supervised release, the sentencing court ordered defendant to “participate in a mental health evaluation as directed by the Probation Office for the purpose of determining if mental health counseling is needed while under supervision.” Defendant reported to a scheduled evaluation, but refused to sign a release authorizing the probation office to receive the evaluation results. The district court ordered defendant to engage in the mental health evaluation and to sign a release that authorized the evaluation be submitted to the probation office. The court also authorized the probation office to give a copy of the PSR to the mental health evaluator. The Tenth Circuit affirmed. Ordering defendant to sign a release did not unreasonably deprive defendant of her liberty. The probation office needed the mental health evaluation to determine whether to recommend that defendant receive mental health counseling. Ordering defendant to release her prior medical records to the evaluator also did not unreasonably deprive her of her liberty. Defendant need only release her prior records to the extent the evaluator needed them to make a proper evaluation. U.S. v. Wayne, 591 F.3d 1326 (10th Cir. 2010).
10th Circuit finds no plain error where no decision or Guideline addressed supervised release argument. (580) Defendant was sentenced to a 10-year term of supervised release under 21 U.S.C. § 841(b)(1)(C), which mandates a term of supervised release of at least six years in addition to any term of imprisonment. Under the Guidelines, the term of supervised release for a Class A or B felony is at least three years, but not more than five years, but the term of supervised release “shall not be less than any statutorily required term of supervised release.” § 5D1.2(c). Defendant argued for the first time on appeal that six years was both the minimum and maximum term of supervised release. The Tenth Circuit found no plain error. Because 21 U.S.C. § 841(b)(1)(C) mandates a supervised release term of at least 6 years, the 10-year term was within the relevant statutory range. Defendant did not point to any Supreme Court or Tenth Circuit decisions directly addressing the Guideline issue he raised. Because the Guidelines are not “clearly and obviously … limited” to the interpretation defendant advocated, the district court’s interpretation was not clearly erroneous. U.S. v. Poe, 556 F.3d 1113 (10th Cir. 2009).
10th Circuit upholds special sex offender conditions of release for financial crimes defendant. (580) Defendant, an ATM technician, was fired for stealing from the ATMs in his route. Several months later, defendant was arrested and convicted of two counts of lewd and indecent proposal to a child. He then pled guilty in federal court to misapplication of bank funds. The district court sentenced him to incarceration followed by a five-year term of supervised release. In addition to the standard conditions of release, the court ordered several special sex offender conditions. The Tenth Circuit upheld that the sex offender conditions, even though the underlying offense was not a sex crime. The court explained its decision at sentencing, noting that the sex crimes occurred immediately after the cessation of the activity in this case. While the sex offender conditions did not relate to the nature and circumstances of his offense, they did relate to his history and characteristics, given defendant’s recent conviction for a sex offense involving minor children. The fact that the sex offender conditions would not take effect until 18 years after his state release did not matter. Conditions of supervised release always follow an individual’s release from prison. U.S. v. Hahn, 551 F.3d 977 (10th Cir. 2008).
10th Circuit holds that occupational restriction was not reasonable. (580) Defendant, the CEO of a utility company, loaned $1.5 million to the former CEO and president of his bank. Both concealed the loan from the bank through false documentations, and defendant was convicted of conspiracy, bank fraud and money laundering. As a condition of supervised release, the district court prohibited defendant from being employed as an executive and engaging in any financial agreements or negotiations in a professional capacity without first obtaining court approval. The Tenth Circuit rejected the occupational restriction. First, an occupational restriction requires a reasonably direct relationship between the defendant’s profession and the offense of conviction. § 5F1.5(a)(1). Here, the offense of conviction was based on defendant’s personal conduct. Second, an occupational restriction must be “reasonably necessary to protect the public,” which requires a finding that, in the absence of the restriction, the defendant will continue to engage in similar unlawful conduct. The court made no such finding. Third, an occupational restriction should be “for the minimum time and to the minimum extent necessary to protect the public.” There was no indication that the court considered any less restrictive alternatives. U.S. v. Wittig, 528 F.3d 1280 (10th Cir. 2008).
10th Circuit upholds condition of supervised release requiring defendant to submit to suspicionless searches. (580) Defendant was convicted of being a felon in possession of a firearm. The Tenth Circuit affirmed a condition of supervised release requiring defendant to submit to suspicionless searches. The purpose of supervised release is to provide enough supervision to prevent recidivism on the part of the offender. One effective means of preventing defendant from possessing a firearm again in the future is to require him to submit to suspicionless searches after he has been released from prison but while he is still under the supervision of the probation office. U.S. v. Hanrahan, 508 F.3d 962 (10th Cir. 2007).
10th Circuit holds that employment verification policy did not constitute “occupational restriction.” (580) In U.S. v. Souser, 405 F.3d 1162 (10th Cir. 2005), the Tenth Circuit held that Colorado’s policy of requiring probationers to notify potential employers of their conviction and supervision status constituted a “occupational restriction” under U.S.S.G. § 5F1.5. Because the policy was an occupational restriction, the probation office could not enforce the policy without an individualized assessment of its need for each probationer. In response, Colorado revised the policy to require probation officers simply to verify the employment of persons on probation by contacting their employers. The Tenth Circuit held that the employment verification policy was not an occupational restriction. It did not place any limits on the terms of employment or require a probationer to engage in a specified occupation, business, or profession. U.S. v. Du, 476 F.3d 1168 (10th Cir. 2007).
10th Circuit remands where court failed to give pre-hearing notice special condition of release authorizing suspicionless searches. (580) Defendant was convicted of two counts of assault in connection with the beating of his girlfriend. The PSR indicated a term of supervised release was appropriate, but did not discuss the potential applicability of any special terms of supervised release. Nevertheless, at sentencing, the district court announced as one of the special terms of defendant’s supervised release that he “must submit to a search of his person, property, or automobile, to ensure compliance with conditions of supervision.” The court did not offer any rationale for the imposition of this specific condition, and did not undertake an analysis of the propriety of the special condition under the limitations set out in 18 U.S.C. § 3583(d). The Tenth Circuit reversed and remanded, because the district court failed to give pre-hearing notice of the court’s intent to impose this special condition. See U.S. v. Bartsma, 198 F.3d 1191 (10th Cir. 1999). The special condition involved a liberty interest, and there was no obvious nexus between the special condition and the crimes of conviction. The “nexus” proposed by the government (the assaults involved alcohol, and the searches were necessary to ensure that defendant did not violate the condition barring his possession and use of alcohol) was far too attenuated. U.S. v. Bruce, 458 F.3d 1157 (10th Cir. 2006).
10th Circuit rejects three-month term of home confinement as part of supervised release. (580) The district court sentenced defendant to 27 months imprisonment plus three years of supervised release, at least the first three months of which he was to serve in home confinement. The maximum guideline term of imprisonment for defendant’s offense was 27 months. A condition of home confinement is only to be substituted for imprisonment. U.S.S.G. § 5D1.3(e)(2). The Tenth Circuit found, and the government conceded, that the three months of home detention was improper, in the absence of an explicit upward departure from the guidelines. The government also conceded that the district court failed to provide its reasons for the terms and conditions of the remainder of defendant’s supervised release on the record. The Tenth Circuit refused to enter the “zone of appellate speculation” and postulate about what the court’s reasons were for the imposition of the sentence. It remanded for the district court to state its reasons on the record for imposing the three months to be served in home confinement, and to make explicit its upward departure from the guidelines in imposing this condition. In the alternative, the district court must resentence defendant in accordance with the guidelines. U.S. v. Kravchuk, 335 F.3d 1147 (10th Cir. 2003).
10th Circuit holds that defendant had constructive notice of child support and mental health program requirements. (580) The district court imposed several conditions of supervised release, including that defendant (1) pay child support as ordered by state authorities, and (2) participate in a program for mental health treatment. Defendant argued that these conditions were imposed without proper presentence notice. Without holding that defendant was in fact entitled to such notice, the Tenth Circuit held that defendant had constructive notice that the challenged conditions might be imposed. The challenged conditions were among the recommended conditions set forth in the Sentencing Guidelines, and the factual predicates for their imposition were fully addressed in the PSR. The condition that a defendant support his children and comply with child-support orders, § 5D1.3(c) (4), is among the “standard conditions” recommended for supervised release. Similarly, § 3583(d) authorizes a district court to require that the defendant “undergo available medical, psychiatric, or psychological treatment” and participation in an approved mental health program is a “special” condition recommended by the guidelines “[I]f the court has reason to believe that the defendant is in need of psychological or psychiatric treatment….” § 5D1.3(d)(5). In light of the facts detailed in the PSR, defendant could not have been caught off-guard by the court’s determination that he should undergo mental health counseling. The PSR contained 14 paragraphs describing violent behavior by defendant dating back to 1989. U.S. v. Barajas, 331 F.3d 1141 (10th Cir. 2003).
10th Circuit rejects prohibition from engaging in commercial fishing as condition of supervised release. (580) Game wardens arrested defendant after he was observed illegally netting fish for commercial purposes. During an inventory search of his truck, police found ammunition and shotgun shells. He eventually pled guilty to illegally possessing ammunition, in violation of 18 U.S.C. § 922(g). The government dropped charges of transporting in interstate commerce fish taken in violation of state law. The court sentenced defendant to 15 months’ imprisonment and three years’ supervised release. As a condition of supervised release, the court prohibited defendant from commercial fishing. The Tenth Circuit reversed, because the condition bore no relationship to the offense of conviction, the ammunition possession charge. A sentencing court may impose an occupational restriction only if the occupation “bear[s] a reasonably direct relationship to the conduct constituting the offense.” See 18 U.S.C. § 3563(b)(5) and USSG § 5F1.5(a)(2). The record did not establish that prohibiting defendant from fishing commercially was reasonably necessary to protect the public from conduct similar to that for which he was convicted, possession of ammunition. U.S. v. Erwin, 299 F.3d 1230 (10th Cir. 2002).
10th Circuit requires clarification of ban on possessing computer with Internet access. (580) Defendant pled guilty to a single count of receiving child pornography. He challenged three special conditions of supervised release: a prohibition against possessing a computer with Internet access, a requirement that he participate in a mental health program for sex offenders that might include physiological testing, and a requirement that he submit to searches of his home, auto and person. The Tenth Circuit ruled that the ban on possessing a computer with Internet access was both overly broad and at the same time potentially too narrow, and remanded for clarification. The computer ban was too narrow in that it did not bar defendant’s access to the Internet, only his possession of a computer with Internet access. Thus, defendant could still use a computer at a library, cybercafe, or even an airport to log into the Internet. The prohibition was too broad in that it barred defendant from possessing a computer to do research in non-pornographic areas. Thus, the condition was “greater than necessary.” 18 U.S.C. § 3553(a). On remand, the district court must more clearly specify the parameters of the prohibition, and permit reasonable monitoring by a probation officer to ensure compliance. The special condition providing for “physiological” testing also required clarification. During sentencing, the district court stated that defendant must participate in a mental health program that might include “psychological” testing, but the written order stated “physiological” testing. Finally, the condition requiring defendant to submit to warrantless searches was reasonable. U.S. v. White, 244 F.3d 1199 (10th Cir. 2001).
10th Circuit holds that challenge to supervised release conditions were ripe for review. (580) After serving the custodial portion of his sentence, defendant sought to challenge three of the five special conditions of supervised release imposed: prohibition of Internet access, physiological testing, and probationary searches. Because, so far, no searches had occurred, physiological testing ordered, or Internet access denied, the government contended the issues were not ripe for review. The Tenth Circuit held that defendant’s challenge to the conditions of supervised release was ripe, even though the government had not attempted to enforce those conditions and there had not yet been a violation. To assure a live “case or controversy,” court must assess “both the fitness of the issues for judicial decision and the hardship to the parties of withholding the court consideration.” Abbott Laboratories v. Gardner, 387 U.S. 136 (1967). Thus, in U.S. v. Loy, 237 F.3d 251 (3d Cir. 2001), the Third Circuit found that a defendant challenging a prohibition against possessing all forms of pornography had established hardship, given that he could only learn of the prohibition’s reach when he faced a revocation proceeding. The issue was fit for judicial review–the breadth of the prohibition presented a question of law for which prompt resolution would inform defendant’s conduct. This case was similar to Loy. U.S. v. White, 244 F.3d 1199 (10th Cir. 2001).
10th Circuit finds no Apprendi error where sentence fell within range for unspecified drug quantity. (580) In Apprendi v. New Jersey, 120 S.Ct. 2348 (2000), the Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.” Although defendant’s indictment did not allege drug quantity, the Tenth Circuit found that it was legally sufficient because his 121-month sentence fell within the 240-month statutory maximum for an offense involving an unspecified quantity of cocaine base. See 21 U.S.C. § 841(b)(1)(C). “A district court may not impose a sentence in excess of the maximum set forth in 21 U.S.C. § 841(b)(1)(C) unless the benchmark quantity of cocaine base for an enhanced penalty is alleged in the indictment in addition to being submitted to the jury and proven beyond a reasonable doubt.” U.S. v. Jones, 235 F.3d 1231 (10th Cir. 2000). Moreover, defendant’s concurrent five-year terms of supervised release did not violate Apprendi because they were within the minimum statutory range. Section 841(b)(1)(C) provides for a minimum of three years’ supervised release, and consistent with this, the guidelines authorize a term of not less than three years and not more than five years. USSG § 5D1.2. U.S. v. Thompson, 237 F.3d 1258 (10th Cir. 2001).
10th Circuit upholds greater than three-year term of supervised release for § 841 violations. (580) Under 18 U.S.C. § 3583(b)(2), “[e]xcept as otherwise provided, the authorized terms of supervised release are … for a Class C or D felony, not more than three years….” Defendant violated 21 U.S.C. § 841(a), which requires under § 841(b)(1)(C) that any term of supervised release be “at least 3 years.” Because Congress added the language “except as otherwise provided” in § 3583(b)(2) when § 841 was enacted, previous Tenth Circuit cases have held that Congress carved out an exception to § 3583(b)(2) for the supervised release terms in § 841. See U.S. v. Orozco-Rodriguez, 60 F.3d 705 (10th Cir. 1995). However, defendant pointed out that the 1998 version of § 5D1.2(a), in effect when defendant was sentenced, provided that “if a term of supervised release is ordered, the length of the terms shall be … at least two years but nor more than three years for a defendant convicted of a Class C or D felony.” The Tenth Circuit held that § 841(b)(1)(C) is not restricted by USSG § 5D1.2(a) or § 3583(b)(2) from establishing terms of supervised release greater than three years. Statutes trump guidelines when the two conflict. The Sentencing Commission itself noted: “If the statute requires imposition of a sentence other than that required by the guidelines, the statute shall control.” See commentary to § 5G1.1. U.S. v. Heckard, 238 F.3d 1222 (10th 2001).
10th Circuit directs court to state reason for term of supervised release and home confinement. (580) The district court sentenced defendant to six months’ imprisonment, followed by three years’ supervised release, the first six months of which were to be in home detention. Because the record did not reflect the district court’s reasons for imposing a term of supervised release and the special condition of home confinement, the Tenth Circuit remanded to the district court. Under 18 U.S.C. § 3553(c), the court, “at the time of sentencing, shall state in open court the reasons for its imposition of the particular sentence.” It is not necessary for a sentencing court to make specific factual findings regarding each of the factors enumerated for consideration in § 3583(c) and (d). However, the record must indicate some reason given by the sentencing court for its decisions, or else the requirement of § 3553(c) that a court state its reasons for imposing a particular sentence would be rendered meaningless. In the present case, the court failed to give any indication as to why it elected to impose, in addition to a prison term, a three-year term of supervised release, when none was required by the statute, or why it decided the defendant must serve the first six months of that release in home confinement. U.S. v. Zanghi, 209 F.3d 1201 (10th Cir. 2000).
10th Circuit requires notice of sex offender registration requirement where not related to charged offense. (580) Defendant pled guilty to being a felon in possession of a firearm. Based on his criminal history, the district court imposed, as a condition of supervised release, a requirement that he register as a sex offender in any state in which he resided. Defendant argued that he was entitled to presentence notice that the condition was under consideration. In Burns v. United States, 501 U.S. 129 (1991), the Supreme Court held Rule 32 required reasonable notice to the parties when a district court is contemplating an upward departure based on a ground not listed in the PSR or in a prehearing submission by the government. Allowing such departures would render “meaningless the parties’ express right [under Rule 32] to comment upon … matters relating to the appropriate sentence.” The Tenth Circuit held that the Burns rationale applies when a district court is considering imposing a sex offender registration requirement as a special condition of supervised release, and the condition is not on its face related to the charged offense. Defendant was entitled to receive reasonable presentence notice that a special condition of supervised release requiring him to register as a sex offender was a possibility. U.S. v. Bartsma, 198 F.3d 1191 (10th Cir. 1999), overruled on other grounds by U.S. v. Atencio, 476 F.3d 1099 (10th Cir. 2007).
10th Circuit upholds special condition of supervised release relating to financial disclosures and restrictions. (580) Defendant presented a document to the U.S. Marshal’s Office which falsely indicated that he had prevailed in a civil action against a bank, when in fact the action had been dismissed. This document also indicated that the lawsuit entitled him to possession of certain real property. The Tenth Circuit upheld the imposition of special conditions of supervised release relating to financial disclosures and restrictions. Under 18 U.S.C. § 3583(d), a special condition of supervised release must be reasonably related to “the nature and circumstances of the offense and the history and characteristics of the defendant.” All three counts of the original indictment related to defendant’s attempts to defraud financial institutions. Defendant belonged to the organization “We the People,” which “does not believe the federal banking system has authority after they ceased being backed by the gold standard.” Given defendant’s history and characteristics, and the need to protect the public from further similar crimes, the financial conditions imposed on defendant met the requirements of § 3583(d). U.S. v. Ensminger, 174 F.3d 1143 (10th Cir. 1999).
10th Circuit says supervised release began when defendant was released on regular parole. (580) Defendant pled guilty to drug offenses committed before the effective date of the guidelines. He was sentenced to five years in prison and three years of supervised release. Thereafter, U.S. v. Levario, 877 F.2d 1483 (10th Cir. 1989) held that persons in defendant’s circumstances could not be sentenced to supervised release, so the district court substituted a two-year term of special parole. Defendant was released from prison in 1991 and placed on regular parole for two years. When the regular parole expired on October 17, 1993, he began serving the two-year special parole. On May 8, 1995, he was arrested for violating special parole. Upon discovering that Levario had been repudiated, the court reinstated the term of supervised release to begin on October 17, 1993, when defendant completed his regular parole, and then revoked the supervised release. The Tenth Circuit held that the supervised release term began in 1991 when defendant was released on regular parole, not the day the special parole began. Thus, the violation occurred after the expiration of the supervised release, October 17, 1994, and could not be a basis for revocation. U.S. v. Reider, 103 F.3d 99 (10th Cir. 1996).
10th Circuit requires reasons for barring defendant from seeing son while on supervised release. (580) After the end of tumultuous relationship, defendant repeatedly called, mailed letters to and sent flowers to his former girlfriend, who was also the mother of his son. He was convicted of using a telephone to communicate a threat after leaving a threatening message on her new boyfriend’s answering machine. As a special condition of supervised release, the district court prohibited defendant from contacting the girlfriend, their son, or the new boyfriend. The Tenth Circuit remanded with direction for the court to state its reasons for barring defendant from seeing his son. Section 3583(d)(2) requires conditions restricting a defendant’s liberty to be especially fine-tuned to achieve the goals in § 3553(a)(2)(B), (C) and (D). The special condition regarding defendant’s son implicated defendant’s liberty. On remand, the court was free to consider “fine tuning” the supervised release conditions so that defendant could not use contacts with his son to harass his former girlfriend or her new boyfriend. U.S. v. Edgin, 92 F.3d 1044 (10th Cir. 1996).
10th Circuit holds that § 3583(b)(2) does not limit supervised release term imposed under § 841(b)(1)(C). (580) Defendant pled guilty to possession of more than 50 kilograms of marijuana with intent to distribute. Defendant argued that three years was the maximum period of supervised release he could receive because his conviction was for a Class C felony, which carries a maximum of three years’ supervised release under 18 U.S.C. § 3583(b)(2). The Tenth Circuit affirmed a four year term of supervised release, holding that § 3583(b)(2) does not limit to three years a supervised release term imposed under 21 U.S.C. § 841(b)(1)(C). Section 841(b)(1)(C), which governed defendant’s sentence, provides for a minimum three year term of supervised release. When this section was enacted, Congress amended § 3583(b) to add the phrase “except as otherwise provided.” The phrase was added so that § 3583(b) would not conflict with § 841(b). Supervised release terms ordered under § 841(b) are not constrained by § 3583(b)(2). U.S. v. Orozco-Rodriguez, 60 F.3d 705 (10th Cir. 1995).
10th Circuit upholds supervised release even though statute of conviction did not mention it. (580) Defendant argued that his five-year supervised release term was improper, since the statute under which he was convicted did not even mention supervised release. He also argued that the district court may have incorrectly believed the term was mandatory. The 10th Circuit rejected both of these claims. The legislative authority for imposing a supervised release term is found in 18 U.S.C. § 3583. This statute gives sentencing courts discretion to determine whether a supervised release term is appropriate unless the statute of conviction requires it, in which case it is mandatory. There was nothing in the record to suggest the district court believed the supervised release term was mandatory. U.S. v. Allen, 24 F.3d 1180 (10th Cir. 1994).
10th Circuit affirms that defendant possessed cocaine even though drugs were never found. (580) The 10th Circuit affirmed that there also was sufficient evidence that defendant committed a Grade A violation of his supervised release by illegally possessing cocaine, even though the cocaine was never found. A police informant arranged to have someone deliver to him an ounce of cocaine. The defendant arrived at the appointed place at the appointed time, in a vehicle meeting the description provided to the informant. When the police arrived he fled, leading police on a high-speed chase until he wrecked his car. He then fled on foot and hid in the woods until discovered by a helicopter with a heat-seeking device. He also admitted tossing the cocaine from the car. The window of the car was found open, supporting this admission. U.S. v. Hall, 984 F.2d 387 (10th Cir. 1993).
10th Circuit affirms consecutive terms of supervised release where defendant had section 924(c) conviction. (580) Defendant was convicted of a drug charge and carrying a firearm during a drug trafficking crime, in violation of 18 U.S.C.924(c)(1). In addition to a term of imprisonment, he received a six year term of supervised release. The 10th Circuit rejected the claim that the six-year term of supervised release exceeded the period authorized by statute. Section 5D1.2(a) of the guidelines authorizes a maximum supervised release term of five years, or the minimum which is required by statute, whichever is greater. The drug statute under which defendant was convicted did not list a maximum. Thus, if defendant was only convicted of the drug offense, the six year term would not be authorized. However, defendant was also convicted of the weapons charge under 18 U.S.C. section 924(c)(1). Under section 5D1.1(a), the court was required to imposed a supervised release term for the weapons conviction. The court found that nothing precluded the district court from imposing a consecutive term of supervised release on the weapons charge, consecutive to that which it imposed on the drug conviction. Congress clearly intended consecutive penalty schemes for weapons violations under section 924(c). U.S. v. Maxwell, 966 F.2d 545 (10th Cir. 1992).
10th Circuit upholds prohibition against returning to family in Thailand during period of supervised release. (580) Defendant was convicted of drug trafficking. As a condition of supervised release, the district court prohibited him from leaving the district without permission of the court or his probation officer. The 10th Circuit upheld the denial of a request for a modification of these terms to permit defendant to return to his home, wife and child in Thailand. The court agreed that there was no “direct impediment” to authorizing a person on supervised release to leave the United States, if the necessary supervision could be enforced abroad. However, the district court did not abuse its discretion in imposing conditions that mandated regular, frequent monitoring by a trained probation officer. The structure needed to support defendant’s rehabilitative supervision was absent outside the U.S. U.S. v. Pugliese, 960 F.2d 913 (10th Cir. 1992).
10th Circuit reverses supervised release term in excess of three years. (580) Defendant pled guilty to one count of possession with intent to distribute less than 100 grams of heroin. In addition to other penalties, defendant received a five year term of supervised release. On appeal, the government conceded that the offense to which defendant pled guilty was a Class C felony subject to a maximum term of supervised release of three years as provided in 18 U.S.C. section 3583(b)(2). Thus, the 10th Circuit remanded for resentencing on this issue. U.S. v. Padilla, 947 F.2d 893 (10th Cir. 1991).
10th Circuit rules failure to advise defendant of supervised release was harmless error. (580) The 10th Circuit upheld defendant’s sentence despite the district court’s failure to advise defendant that his sentence would include a period of supervised release as required by Rule 11. Defendant did not argue that he would not have pled guilty had the court advised him of the supervised release. The court did advise defendant that the maximum penalty for his offense was five years’ imprisonment, plus fines and fees. Defendant received a sentence of 14-months imprisonment and three years supervised release. Thus, the total sentence was a fraction of the maximum stated by the district court, and defendant’s substantial rights were not affected. The court rejected the suggestion that a possible future violation of supervised release might affect the harmless error analysis. U.S. v. Elias, 937 F.2d 1514 (10th Cir. 1991).
10th Circuit holds that failure to advise of mandatory period of supervised release was harmless error. (580) The 10th Circuit ruled that in taking a guilty plea under Rule 11, Fed. R. Crim. P., the district court must inform the defendant that, if sentenced to prison, he would be subject to a mandatory term of supervised release. The court erred in failing to do so here, but the 10th Circuit found the error harmless. Defendant was advised that the maximum penalty was 40 years, that parole had been abolished and that he would be sentenced under the guidelines. Since his total sentence — including the term of supervised release — was only a fraction of the maximum penalty, the failure to advise him “could not have had a significant influence on appellant’s decision to plead guilty.” U.S. v. Barry, 895 F.2d 702 (10th Cir. 1990).
11th Circuit approves condition of release requiring defendant to report from Mexico. (580) Defendant pled guilty to unlawful reentry after deportation, and was sentenced to imprisonment and a three-year term of supervised release. A special condition of defendant’s supervised release required defendant to report from Mexico with his current address and any change in address. The Eleventh Circuit held that the condition was reasonably related to several § 3553(a) factors: his unlawful re-entry crime, deterrence from illegally re-entering the United States again, and protection for the public from his future attempt to re-enter this country unlawfully. This was particularly true since this was defendant’s second deportation from the US, and his re-entry took place a month after his first deportation. U.S. v. Garza-Mendez, 735 F.3d 1284 (11th Cir. 2013).
11th Circuit upholds 25-year term of supervised release for sex offense involving minor. (580) Defendant was convicted of attempting to persuade or coerce a minor to engage in unlawful sexual activity, and of knowingly transporting an individual in interstate commerce with the intent that she engage in prostitution. The Eleventh Circuit held that it was within the district court’s discretion to impose a 25-year term of supervised release. The applicable statute, 18 U.S.C. § 3583(k), authorizes a sentence of any term or life for defendants convicted of violations of §§ 2421 and 2422 in cases where the victim was a minor. In cases with sex offenses involving minors, the statutory maximum term is recommended. § 5D1.2(a),(c). The district court did not abuse its discretion when it imposed defendant’s 25-year term of supervised release. U.S. v. Daniels, 685 F.3d 1237 (11th Cir. 2012).
11th Circuit upholds sex offender registration for former D.A. who stroked minor’s genitals during drug test. (580) Defendant, a local district attorney, fondled the genitals of several individuals who were urinating in a cup as part of a drug test. He was convicted before a magistrate of depriving individuals of their right to be free from unreasonable searches. As a condition of supervised release, the magistrate ordered defendant to register as a sex offender. Defendant appealed to the district court, challenging only the order that he register as a sex offender. His argument focused solely on the age of one of the victims. The district court affirmed the magistrate judge’s sentence, and the Eleventh Circuit upheld the district court’s decision. While defendant raised the issue of not being convicted of a qualifying offense before the magistrate judge, he did not raise this issue in his appeal to the district court, and thus the argument was waived or abandoned. Moreover, the magistrate examined the underlying conduct of the offense and correctly determined that defendant had engaged in conduct that by its nature, was a sex offense against a minor. As for the age of the victim, defendant failed to object to the PSR’s statement that one of the victims was a minor, and thus had admitted it for sentencing purposes. U.S. v. Pilati, 627 F.3d 1360 (11th Cir. 2010).
11th Circuit upholds one-year Internet ban for offender who had Internet contact with other sex offenders while on previous release. (580) Defendant pled guilty to 13 violations of his supervised release that he was serving due to a child pornography conviction. The district court sentenced defendant to 24 months’ imprisonment, followed by another year of supervised release with additional conditions. He argued on appeal that a condition of his one-year supervised release—imposing a ban on all access to the Internet—was unreasonably broad, but the First Circuit disagreed. Defendant violated his first supervised release by having inappropriate Internet contact with other convicted sex offenders, and his underlying conviction involved child pornography downloaded from the Internet to his personal computer. Defendant did not show that the district court abused its discretion in imposing a one-year Internet ban as a condition of defendant’s second supervised release. The panel also ruled that the 24-month imprisonment sentence was not unreasonable. U.S. v. Tome, 611 F.3d 1371 (11th Cir. 2010).
11th Circuit upholds special conditions of supervised release even though crime of conviction did not involve sexual misconduct. (580) Defendant, a convicted sex offender, was convicted of being a felon in possession of a firearm. In addition to the standard conditions of release, the district court imposed several special conditions of release, including requiring defendant to (1) participate in a sex offender treatment program, (2) register as a sex offender, (3) refrain from contact with minors, and (4) avoid any area where children congregate. The Eleventh Circuit upheld all of these conditions, even though defendant’s current offense did not involve sexual misconduct. Defendant’s history and characteristics supported the mental health treatment. He had a documented history of sex-related offenses, and was a convicted sex offender. Even if the last conviction was remote in time (which it was not), defendant’s argument ignored that he was discovered in a household containing a minor female soon after his release from prison and had failed to register as a sex offender. U.S. v. Moran, 573 F.3d 1132 (11th Cir. 2009).
11th Circuit holds that defendant was not entitled to notice of supervised release conditions addressing sexual misconduct. (580) Defendant, a convicted sex offender, was convicted of being a felon in possession of a firearm. In addition to the standard conditions of release, the district court imposed several special conditions of release relating to his status as a sex offender. The Eleventh Circuit rejected defendant’s claim that he was entitled to a new sentencing hearing because the district court failed to provide notice that it intended to impose special conditions on his supervised release. In Irizarry v. U.S., 553 U.S. 708, 128 S.Ct. 2198 (2008), the Supreme Court held that the notice requirement in Burns v. U.S., 501 U.S. 129 (1991), does not apply to a variance from the advisory range under the Sentencing Guidelines. The district court was not required to notify defendant before it imposed special conditions to address his proclivity for sexual misconduct. U.S. v. Moran, 573 F.3d 1132 (11th Cir. 2009).
11th Circuit upholds condition of supervised release requiring defendant to inform probation officer in writing of his address within 72 hours of deportation. (580) As a special condition of supervised release, the district court required defendant to inform the probation officer in writing of his address in Mexico within 72 hours of his deportation from the United States. Defendant challenged the condition, arguing that because the government would be aware of defendant’s deportation, the reporting requirement had no practical purpose and was not reasonably related to any of the § 3553(a) factors. The Eleventh Circuit upheld the reporting condition. The requirement was not imposed to confirm that defendant was in fact deported, but was rather designed to ensure that he remained in Mexico. The required was intended to discourage defendant from immediately re-entering the U.S., and more importantly, allow the probation officer to monitor his location. U.S. v. Arnoldo Guzman, 558 F.3d 1262 (11th Cir. 2009).
11th Circuit upholds imposition of supervised release as part of sentence following probation revocation. (580) For his drug convictions, defendant was sentenced to five years’ probation. The court later revoked his probation, and imposed a sentence of four months’ imprisonment to be followed by a three-year term of supervised release. Defendant argued that the district court erred in concluding that it was required to impose a term of supervised release in addition to a sentence of imprisonment for a probation violation. The Eleventh Circuit held that defendant could not show that the district court imposed supervised release in violation of law. Although there was nothing in 18 U.S.C. § 3583(a) which required the imposition of supervised release in addition to a term of imprisonment, there was nothing in the statute which stated that the court could not impose supervised release upon revocation of probation. U.S. v. Mitsven, 452 F.3d 1264 (11th Cir. 2006).
11th Circuit holds that maximum sentence plus term of supervised release did not exceed statutory maximum. (580) Defendant was sentenced to 12 months’ imprisonment, the statutory maximum term of imprisonment for his drug misdemeanor, followed by one year of supervised release. Defendant argued that the court imposed an illegal sentence in excess of the statutory maximum because any imprisonment given for violating supervised release would result in a greater period of incarceration than permitted by the statute of conviction. The Eleventh Circuit disagreed. The Supreme Court case relied on by defendant, Johnson v. U.S., 529 U.S. 694 (2000) did not address this issue. Johnson dealt with a retroactivity issue. Johnson did not change the well-settled rule that a term of supervised release may be imposed in addition to the statutory maximum term of imprisonment. U.S. v. Cenna, 448 F.3d 1279 (11th Cir. 2006).
11th Circuit holds that condition requiring defendant to participate in mental health program was improper delegation of sentencing authority. (580) The district court imposed 14 standard conditions and four special conditions on defendant’s supervised release. The Eleventh Circuit held that the condition requiring defendant to participate in a mental health program “as deemed necessary by the probation officer” was an improper delegation of judicial sentencing authority. The Sentencing Guidelines expressly permit the court, and only the court, to impose a condition requiring that the defendant participate in a mental health program. U.S. v. Heath, 419 F.3d 1312 (11th Cir. 2005). See U.S.S.G. § 5B1.3(d)(5). The court delegated to the probation the “ultimate responsibility” of whether defendant must participate in mental health counseling instead of the “ministerial function” of how, when, and where the defendant must participate. The condition requiring defendant to secure prior approval from the probation office before opening any checking, credit or debit account did not improperly delegate a judicial function. The guidelines explicitly recommend “a condition prohibiting the defendant from incurring new credit charges or opening additional lines of credit without approval of the probation officer” where restitution is imposed. See U.S.S.G. § 5D1.3(d) (2). The condition requiring defendant to notify third parties of risks that may be occasioned by [defendant’s] criminal record was not vague and overbroad. It was undeniably related to her current fraud conviction, previous convictions, restitution obligation, and the need to protect the public from defendant’s financial fraud. U.S. v. Nash, 438 F.3d 1302 (11th Cir. 2006).
11th Circuit holds that lifetime supervised release term was not cruel and unusual punishment. (580) Defendant pled guilty to several child pornography-related counts. The district court sentenced him to the statutory maximum sentence of 240 months and a lifetime of supervised release. Section 3583(k) of Title 18 authorized the imposition of a lifelong term of supervised release on two of the three counts. However, the maximum term of supervised release for the violation of 18 U.S.C. § 1466A(a), a Class C felony, was three years. Remand was necessary to clarify as to the term of supervised release for Count Three. However, the Eleventh Circuit rejected defendant’s argument that the lifetime supervised release constituted cruel and unusual punishment. Whatever relevance various factors such the years of sexual abuse he suffered as a child might have to his degree of moral culpability, they did not lessen the need for supervised release. Given the connection between defendant’s possession of child pornography and his apparent propensity for engaging in the sexual abuse of children, a lifetime term of supervised release was not grossly disproportionate to his child pornography offenses under 18 U.S.C. § 2252A. U.S. v. Moriarty, 429 F.3d 1012 (11th Cir. 2005).
11th Circuit says court improperly delegated to probation officer decision whether defendant should participate in mental health program. (580) The district court included as a condition of supervised release that defendant submit to a mental health evaluation as well as any necessary follow-up treatments. The probation officer filed a petition with the court asserting that defendant had not cooperated with the doctor performing the evaluation. The district court then modified defendant’s conditions of release, ordering that he “participate if and as directed by the probation office in such mental health programs as recommended by a psychiatrist or psychologist …” The Eleventh Circuit held in leaving to the probation officer the decision whether defendant had to participate in a mental health program, the district court improperly delegated an Article III judicial function to the probation officer. The error satisfied the plain error test. The error was plain – requiring a defendant to participate in a mental health program as a condition of supervised release is unquestionably a judicial function. The error affected defendant’s substantial rights, since his sentence would certainly have been different but for the error. Finally, a violation of Article III through the improper delegation of a judicial function is an error that “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” U.S. v. Heath, 419 F.3d 1312 (11th Cir. 2005).
11th Circuit says court lacked authority to toll supervised release while defendant lawfully out of country. (580) At defendant’s 1997 sentencing, the court ordered that (1) if defendant should be deported, his term of supervised release would be tolled; and (2) if defendant should re-enter the U.S., the term of supervised release would resume. Four months later, defendant was deported. In 2002, he was arrested in the U.S. and convicted of a variety of charges. As a result of these convictions, the probation officer charged defendant with violating the terms of his 1997 supervised release. The Eleventh Circuit held that the district court lacked the authority to toll defendant’s term of supervised release while he was out of the country and thus, lacked jurisdiction to revoke a probation period that had already expired. Nothing in the language of the congressional scheme for supervised release expressly permits the tolling in such a situation. Moreover, the permission in 18 U.S.C. § 3553(a) to impose “any other condition” during a supervised release under § 3583(d) relates to the conduct of the defendant, rather than the timing of supervised release. Finally, supervised release is to commence immediately upon an alien defendant’s release from prison. Tolling during deportation as a condition of the release would circumvent the policy underlying that provision. U.S. v. Okoko, 365 F.3d 962 (11th Cir. 2004).
11th Circuit upholds polygraph testing, Internet restrictions, registration as sex offender, and bar against visiting places where children gather. (580) After a contractual dispute with a woman over some remodeling work, defendant responded by harassing the family, including posting an Internet message encouraging men to call the woman’s 12-old daughter to engage in sexual activities. Defendant pled guilty to using the Internet to transmit information about a minor “with the intent to entice … any person to engage in [criminal] sexual activity” with the minor. The district court ordered the following special conditions of supervised release: (1) submission to polygraph testing, (2) restrictions on Internet access, (3) registration as a sex offender, and (4) a restriction on visiting places where children congregate. The Eleventh Circuit affirmed the special conditions, finding that there were reasonably related to the factors set forth in 18 U.S.C. § 3553(a), and did not impinge upon defendant’s constitutional rights. The polygraph testing was intended to help insure defendant’s compliance with his supervised release terms. The condition did not violate his 5th Amendment privilege against self-incrimination – any injury to him was entirely speculative since no incriminating questions had been asked. The restriction on Internet access was undeniable related to the factors listed in 18 U.S.C. § 3553(a) – defendant used the Internet as a tool to harass his victim. Defendant did not have a procedural due process right to a hearing before being stigmatized as a sex offender. See U.S. v. Veal, 322 F.3d 1275 (11th Cir. 2003). Finally, the restriction on visiting places where children congregate was not vague. U.S. v. Taylor, 338 F.3d 1280 (11th Cir. 2003).
11th Circuit upholds requirement that defendant register as sex offender. (580) Defendant pled guilty to transporting or shipping child pornography. As a special condition of supervised release, the district court required that defendant register with the state sexual offender registration agency. Defendant argued that (1) the district court’s finding that he was a sexual predator was unsupported by the record, and (2) he was not given due process hearing to determine whether he was “particularly likely to be currently dangerous.” Guideline § 5D1.3(a)(7) requires, as a mandatory condition of supervised release, that “a defendant convicted of a sexual offense as described in 18 U.S.C. § 4042(c)(4) shall … register as a sex offender in any State where the person resides, is employed, carries on a vocation, or is a student.” The Eleventh Circuit upheld the special condition, since § 5D1.3(a)(7) does not require a district court to make a factual finding that defendant is a sexual predator. Defendant’s offense of conviction, § 2252(a)(1), is listed as a qualifying offense under § 4042(c) (4); thus, § 5D1.3(a)(7)’s mandatory conditions of supervised release were applicable. Moreover, defendant did not cite any authority to support the position that an individual who is convicted of a sex offense is entitled to due process before a district court imposes § 5D1.3(a)(7)’s mandatory condition of supervised release. U.S. v. Veal, 322 F.3d 1275 (11th Cir. 2003).
11th Circuit upholds conditions of supervised release requiring defendant to submit to polygraph testing. (580) Defendant pled guilty to possession of child pornography and was sentenced to imprisonment and then supervised release. The district court ordered, as a condition of supervised release, that defendant submit to polygraph testing “to aid the treatment and supervision process.” The Eleventh Circuit affirmed the condition. Defendant admitted having severe psychological problems, including an affinity for child pornography. He posed a danger to himself and others and was likely to require further rehabilitation upon his release from prison. Under these circumstances, polygraph testing to ensure compliance with probationary terms was both reasonably related to defendant’s offense and personal history, and when reasonably applied would not unduly burden his rights. U.S. v. Zinn, 321 F.3d 1084 (11th Cir. 2003).
11th Circuit upholds ban on Internet usage for defendant who received child pornography. (580) Defendant pled guilty to possession of child pornography. As a condition of supervised release, the district court barred him from possessing or using a computer with access to any on-line service at any location. Defendant argued that the restriction on Internet usage was improper under 18 U.S.C. § 3583(d) because it was not reasonable related to legitimate sentencing considerations and overly burdened his First Amendment rights. The Eleventh Circuit found no abuse of discretion in the court’s limited restriction on defendant’s Internet usage. Although the Internet has become an important resource for information, communication and commerce, the particular facts of this case highlighted the dangers of the Internet and the need to protect both the public and sex offenders themselves from its potential abuses. The condition was not overly broad because defendant could still use the Internet for valid purposes by obtaining his probation officer’s prior permission. The panel recognized that two other circuits have reached a different result, see U.S. v. Freeman, 316 F.3d 386 (3d Cir. 2003); U.S. v. Sofsky, 287 F.3d 122 (2d Cir. 2002), but found that a limited restriction on a sex offender’s Internet use is a necessary and reasonable condition of supervised release. U.S. v. Zinn, 321 F.3d 1084 (11th Cir. 2003).
11th Circuit rejects as too broad condition barring conduct that would give “reasonable cause to believe you have violated any criminal law.” (580) At sentencing, the district court imposed certain conditions of supervised release, including that defendant “abide by all the conditions of release on file with this court.” This referred to a list of 18 conditions of supervised release adopted by the Southern District of Alabama and encompassed in Probation Form 7A. Conditions 16 states: “You shall refrain from conduct or activities which would give reasonable cause to believe you have violated any criminal law.” The Eleventh Circuit held that the condition was not validly imposed because, given its breadth and vagueness, a court could not reasonably determine that it met the “reasonably related” requirements of U.S.S.G. § 5D1.3(b)(1) or the “no greater deprivation” requirement of § 5D1.3(b)(2). The condition proscribes not just criminal activity but a range of behavior so broad as to be inherently vague. Since it is impossible to determine exactly what conduct was prohibited by Condition 16, no court could sufficiently evaluate it to determine if it satisfied the requirements of § 5D1.3. U.S. v. Ridgeway, 319 F.3d 1313 (11th Cir. 2003).
11th Circuit holds that term of supervised release for drug offense not limited to three years. (580) Defendant argued for the first time on appeal that their supervised release term was limited by statute to three years, and that the four-year term violated Apprendi v. New Jersey, 530 U.S. 466 (2000). Section 841(b)(1)(C) requires a term of supervised release of “at least three years.” Defendant relied on 18 U.S.C. § 3583 (b)(2), which provides that “[e]xcept as other provided,” the term of supervised release for a “Class C felony” may be “not more than three years.” Section 841(b)(1)(C), which provides for a maximum prison term of 20 years, constitutes a Class C felony. The Eleventh Circuit found no Apprendi error, holding that § 3583(b) does not limit the term of supervised release authorized in § 841(b)(1)(C). Section 3583 limits the maximum term of supervised release for a Class C felony “except as otherwise provided.” Section 841(b) (1)(C), in fact, expressly “otherwise provides” that the term of supervised release for that particular Class C felony must be at least three years. U.S. v. Sanchez, 269 F.3d 1250 (11th Cir. 2001) (en banc).
11th Circuit affirms judicial removal order for aliens convicted of RICO violations. (580) In U.S. v. Romeo, 122 F.3d 941, 943 (11th Cir. 1997), the Eleventh Circuit held that district courts have no authority to order judicial deportation as a condition of supervised release, so the district court erred in doing so here. However, 8 U.S.C. § 1228(c) empowers a district court to order the deportation of a defendant at sentencing if the government gives the requisite notice of its intent to seek deportation. Here, the government’s notice failed to include an allegation as to the alienage of each defendant. But the Eleventh Circuit found no plain error because the defendants failed to demonstrate how this prejudiced them. Accordingly, the judicial removal orders were affirmed. U.S. v. Nguyen, 255 F.3d 1335 (11th Cir. 2001).
11th Circuit rules substantial rights not affected by failure to mention mandatory supervised release term. (580) At defendant’s plea colloquy, the district court advised defendant of the maximum and minimum term of imprisonment, but failed to inform defendant that there was a mandatory minimum term of supervised release of five years. At sentencing, defendant did not object to the five-year supervised release period. The Eleventh Circuit held that the court’s failure to inform him of the mandatory minimum supervised release term was not plain error because defendant’s substantial rights were not affected. Both the written plea agreement and the district court’s statement during the plea colloquy informed defendant that he could receive a sentence up to life imprisonment, and there was a mandatory minimum sentence of 10 years’ imprisonment, and that his sentence would include a period of supervised release. Further, defendant’s PSR stated that a five-year period of supervised release was required by statute, and defendant failed to object to the PSR at sentencing. Thus, defendant’s conduct indicated that his substantial rights were not affected by the court’s failure to inform him at his plea colloquy of the specific term of supervised release required by statute. U.S. v. Bejarano, 249 F.3d 1304 (11th Cir. 2001).
11th Circuit finds no plain error in supervised release terms, regardless of drug quantity. (580) Under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2362-63 (2000), any fact other than prior convictions that increases the statutory maximum sentence must be charged in the indictment and proved beyond a reasonable doubt. Because both defendants’ imprisonment terms were below the statutory maximum of 20 years for a cocaine offense without reference to drug quantity, see 21 U.S.C. § 841(b)(1)(C), Apprendi did not apply to the imprisonment portion of their sentences. However, they argued for the first time on appeal that their five-year supervised release terms violated Apprendi. Section 841(b)(1)(C) provides for “a term of supervised release of at least 3 years.” Under 18 U.S.C. § 3583(b)(2), the maximum term of supervised release for a Class C felony is three years, “[e]xcept as otherwise provided[.]” Defendants claimed that three years was the maximum term of supervised release under § 841(b)(1)(C). The Eleventh Circuit found no plain error, since there was no Supreme Court or Eleventh Circuit precedent on the issue of whether § 3582(b)(2) provides the maximum term of supervised release for a sentence under § 841(b)(1)(C). Other circuits that have addressed this issue are split, and the majority of them have resolved the issue against defendant’s position. Accordingly, the district court could not have committed plain error in imposing terms of supervised release in excess of three years, regardless of the quantity of drugs involved. U.S. v. Gerrow, 232 F.3d 831 (11th Cir. 2000).
11th Circuit says court cannot restrict defendant’s ability to seek relief from deportation. (580) The district court ordered, as a condition of supervised release, that defendant not seek relief from deportation proceedings. The government and the Eleventh Circuit agreed that the district court lacked authority to impose such a restriction. The IIRIRA provides that a hearing before an immigration judge is the exclusive procedure for determining whether an alien should be deported from the U.S. See 8 U.S.C. § 1229(a)(a). The IIRIRA divests the federal courts of jurisdiction to order deportation independently. See U.S. v. Romeo, 122 F.3d 941 (11th Cir. 1997). Although the district court did not literally order defendant deported, preventing him from raising a defense or challenging the government’s case during a deportation hearing would have the same effect, circumventing both the IIRIRA and Romeo. Therefore, the restriction was improper. U.S. v. Maldonado-Ramirez, 216 F.3d 940 (11th Cir. 2000).
11th Circuit holds that special condition of supervised release need not relate to every listed factor. (580) The district court imposed mental health treatment for anger control as a special condition of supervised release, which was unrelated to the nature of defendant’s credit card fraud. A district court has discretion to order special conditions of supervised release if the conditions are reasonably related to the factors set forth in § 3553(a)(1) and (a)(2)(B)-(D). Defendant argued that the condition was not reasonably related to “the nature and characteristics of his offense” as required by § 5D1.3(b). Agreeing with the Ninth Circuit’s analysis in U.S. v. Johnson, 998 F.2d 696 (9th Cir. 1993), the Eleventh Circuit held that as a matter of law, the special condition imposed need not be related to each listed factor. Instead, each factor is an independent consideration to be weighed. In this case, defendant had an extensive history of domestic violence, had been involved in other incidents involving threats of violence, and had failed to attend a battery-intervention program. Thus, the special condition required defendant to participate in mental health treatment for anger and violence clearly related to his history and characteristics. The requirement that defendant contribute to the costs of his mental health treatment was not clear error, since it applied only if he could afford it. U.S. v. Bull, 214 F.3d 1275 (11th Cir. 2000).
11th Circuit rejects consecutive terms of supervised release. (580) Defendant was convicted of false identification offenses and bond jumping. The district court imposed a three-year tem of supervised release in both cases to be served consecutively. The Eleventh Circuit vacated the sentence, since “any term of supervised release imposed is to run concurrently with any other term of supervised release.” 18 U.S.C. § 3624(e). U.S. v. Magluta, 198 F.3d 1265 (11th Cir. 1999), vacated in part on other grounds, 203 F.3d 1304 (11th Cir. 2000).
11th Circuit holds that probation officer cannot impose occupational restriction as condition of supervised release. (580) The district court imposed a term of supervised release, but did not impose any occupational restrictions. Nonetheless, defendant’s probation officer imposed a condition which prohibited him from engaging in the rare coin business. The Eleventh Circuit held that the probation officer lacked authority to impose an occupational restriction as a condition of supervised release. The statute which authorizes imposition of an occupational restriction as a condition of supervised release, 18 U.S.C. § 3583(d), refers exclusively to a court’s authority to impose the restriction. Likewise, USSG § 5F1.5, which implements § 3583(d), only authorizes a court to impose occupational restrictions and limits its authority to do so to those instances where the court finds (1) “a reasonably direct relationship” between the occupational restriction and the conduct relevant to defendant’s offense, and (2) the restriction is “reasonably necessary to protect the public.” U.S. v. Dempsey, 180 F.3d 1325 (11th Cir. 1999).
11th Circuit upholds plea despite failure to advise of supervised release. (580) Defendant argued for the first time on appeal that his guilty plea was invalid under Rule 11(c)(1) because the district judge did not inform him of his potential range of supervised release under the Sentencing Guidelines. The Eleventh Circuit held that the judge did not clearly err in not advising defendant of his supervised release range. Rule 11(c)(1) requires the judge to determine that the defendant understands “the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law, including the effect of any special parole or supervised release term …” The judge elicited from defendant at the plea proceeding that he knew about the Sentencing Guidelines and that he had discussed the effect of the guidelines on his sentence with his attorney. Under the guidelines, that is all that is required. U.S. v. Mosley, 173 F.3d 1318 (11th Cir. 1999).
11th Circuit rules court had no jurisdiction to order deportation as condition of supervised release. (580) Defendant was convicted of numerous drug charges. The district court relied on 18 U.S.C. §3583(d) to order, as a condition of supervised release, that defendant be deported. The Eleventh Circuit held that the district court lacked authority to deport defendant. In U.S. v. Romeo, 122 F.3d 941 (11th Cir. 1997), the court held that 8 U.S.C. §1229a(a), enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act, divested district courts of jurisdiction to order deportation under § 3583(d). U.S. v. Ramirez-Perez, 166 F.3d 1106 (11th Cir. 1999).
11th Circuit holds court may not order deportation as condition of supervised release. (580) Defendant contended that the district court erred in ordering him deported as a condition of his supervised release. The Eleventh Circuit agreed that the sentencing court did not have the authority to order deportation. The sentence violates the rule of law articulated in U.S. v. Romeo, 122 F.3d 941 (11th Cir. 1997), which states that under the new immigration laws, district courts no longer have the independent legal authority to order deportation. U.S. v. Hernandez, 145 F.3d 1433 (11th Cir. 1998).
11th Circuit holds court had authority to order deportation as a condition of supervised release. (580) The 11th Circuit held that the district court had authority under 18 U.S.C. section 3583(d) to order a defendant to be deported as a condition of supervised release. That section plainly states that if a defendant is subject to deportation, he may be ordered deported as a condition of supervised release. This does not infringe the INS’s authority to deport resident aliens. The INS maintains, at all times, the authority to deport individuals and to carry out the actual deportation. Congress was presumably aware of existing laws when it passed section 3585, and therefore the court’s authority to deport coexists with the INS’s deportation authority. The deportation order did not deny defendant a deportation hearing. The sentencing hearing conducted here met the requirements of an INS deportation hearing. U.S. v. Chukwura, 5 F.3d 1420 (11th Cir. 1993).
11th Circuit rules that four-year term of supervised release for Class C felony was plain error. (580) Defendant pled guilty to violating 21 U.S.C. section 841(d)(2), possessing or distributing a listed chemical with knowledge that it would be used to manufacture a controlled substance. The 11th Circuit reversed a four-year term of supervised release as plain error. Because violations of section 841(d)(2) carry a statutory maximum of 10 years imprisonment, it is a Class C felony. Under guideline section 5D1.2(b)(2), courts may impose a term of supervised release of between two and three years for a Class C felony. U.S. v. Neely, 979 F.2d 1522 (11th Cir. 1992).
11th Circuit upholds supervised release term imposed upon defendant convicted of conspiracy. (580) Defendant was convicted of conspiracy under 21 U.S.C. § 846, which at the time of his offense provided for punishment by “imprisonment or fine or both.” Relying upon Bifulco v. U.S., 447 U.S. 381 (1980), defendant argued that a sentence of supervised release was not within the permissible statutory penalties for a violation of § 846. Bifulco had held that since § 846 did not explicitly authorize the imposition of special parole as punishment for those convicted of conspiracy, no special parole terms could be imposed. The 11th Circuit rejected defendant’s argument, finding that the district court had authority to impose a term of supervised release under 18 U.S.C. 3583(a). Enacted as part of the Sentencing Reform Act, § 3583(a) gives a federal district court the authority to impose supervised release as part of any criminal sentence. U.S. v. Jordan, 915 F.2d 622 (11th Cir. 1990).
11th Circuit finds two year sentence imposed upon violation of supervised release was reasonable. (580) Defendant was originally sentenced to one year in prison and two years of supervised release. Defendant violated the terms of his supervised release by committing the same crime for which he was originally sentenced. The district court revoked the supervised release and imposed a sentence of two years incarceration. The 11th Circuit upheld the sentence as reasonable under 18 U.S.C. § 3553, which provides that a court may revoke a term of supervised release and require the defendant to serve in prison all or part of the term of supervised release without credit for time previously served on post-release supervision. The court rejected defendant’s argument that his sentence should be calculated under the guidelines as if he had committed another crime, rather than violating the terms of his supervised release. U.S. v. Scroggins, 910 F.2d 768 (11th Cir. 1990).
11th Circuit holds that defendant who failed to object to term of supervised release waived objection. (580) Defendant claimed that the term of supervised release imposed by the district court violated the terms of his plea agreement. The 11th Circuit found that defendant had waived his right to appeal this issue by failing to raise the issue in the district court. U.S. v. Jefferies, 908 F.2d 1520 (11th Cir. 1990).
11th Circuit finds statutory authorization for mandatory supervised release guidelines. (580) Defendant argued that U.S.S.G. § 5D3.1(a) (now 5D1.1(a)), which requires a mandatory term of supervised release, is inconsistent with the enabling statute, 18 U.S.C. § 3583(a). The 11th Circuit disagreed, noting that 28 U.S.C. § 994(a) gives the commission complete discretion to determine “whether a sentence to a term of imprisonment should include a requirement that the defendant be placed on a term of supervised release.” The court held that this section provides sufficient authority for the guidelines’ mandatory provisions for supervised release. U.S. v. West, 898 F.2d 1493 (11th Cir. 1990).
11th Circuit holds that supervised release is “in addition to” the period of imprisonment. (580) Defendant argued that since 18 U.S.C. 3583(a) states only that the term of supervised release shall be “included as part of the sentence,” the term should not extend beyond the end of the term of actual imprisonment. Thus the defendant argued that his term of supervised release should equal the period measured by the difference between his 51 month sentence and the date of his release from prison pursuant to 18 U.S.C. § 3624. The 11th Circuit rejected the argument, holding that the term of supervised release is a separate part of defendant’s sentence rather than being the end of the term of imprisonment. Congress intended it to be “in addition to” the term of imprisonment. U.S. v. West, 898 F.2d 1493 (11th Cir. 1990).
D.C. Circuit remands supervised release conditions where court applied wrong standard. (580) Defendant was convicted of arranging to engage in a sexual act with a child. The court imposed various conditions of supervised release, including barring defendant from possessing or using a computer without approval of a probation officer, not using a computer to access pornography, no contact with minors, and sex offender treatment. The D.C. Circuit held that the district court failed to apply the correct statutory standards for special conditions of supervised release, and remanded. Conditions of supervised release must be “reasonably related” to factors in 18 U.S.C. § 3553 and “involve[ ] no greater deprivation of liberty than is reasonably necessary for the purposes” identified in that section. The court explained that the conditions were reasonably necessary to “minimize the risk” of re-offense, but did not balance the goals against the defendant’s liberty, as required by § 3583(d)(2). For example, computers are essential for myriad types of employment, including applying for a job at McDonalds. A ban on computer and internet usage was a significant deprivation of liberty. The mere possibility “that the Internet can be used to arrange sexual encounters with minors” was inadequate to justify an internet restriction. U.S. v. Malenya, 736 F.3d 554 (D.C. Cir. 2013).
D.C. Circuit affirms conditions of supervised release restricting use of computers and access to internet. (580) Defendant was convicted of persuading a person to travel in interstate commerce to engage in criminal sexual activity The court imposed numerous supervised release conditions, including restrictions on his use of computers and his access to the Internet. On appeal, defendant objected to all of the computer and Internet-related conditions of his supervised release. In the district court, however, he had objected to only one of the conditions. The D.C. Circuit held that the unobjected-to computer limitations did not constitute plain error. Defendant used a computer to access a social-networking profile on which he found the profile of an undercover agent. He used the computer to reply to the agent’s posting, used it to converse with the agent about sexual encounters, and used it to exchange telephone numbers. The fact that the final communication took place over the telephone did not matter. Moreover, the fact that the court declined to apply a sentencing increase for use of a computer did not mean it was an abuse of discretion for the court to impose limits on defendant’s access to a computer after his release. The court also upheld the one condition that defendant objected-to below – a provision barring his possession of more than one Internet-capable device. U.S. v. Legg, 713 F.3d 1129 (D.C. Cir. 2013).
D.C. Circuit holds supervised release began when defendant was resentenced, not when he was released pending appeal. (580) A jury convicted defendant of multiple counts of bank fraud. He appealed, and was released in December 2009 pending resolution of the appeal. The appeal was successful, and the case was remanded. Defendant then pled guilty to a single count, and in March 2011, received a sentence of time served plus five years of supervised release. He argued that his term of supervised release should be calculated as beginning in December 2009, when he was released pending appeal. The D.C. Circuit disagreed, holding that defendant’s term of supervised release did not begin until March 2011, when he was sentenced on the charge to which he pled guilty. Although 18 U.S.C. § 3524(e) states, in part, that “[t]he term of supervised release commences on the day the person is released from imprisonment,” this was of no help to defendant. Other parts of § 3524(e) make clear that the “supervised release” referred to is a component of a particular sentence that was imposed on the prisoner. The supervised release defendant challenged on appeal did not exist in December 2009. U.S. v. Davis, 711 F.3d 174 (D.C. Cir. 2013).
D.C. Circuit upholds 40-year term of supervised release for child porn offenses. (580) Defendant pled guilty to transportation and possession of child pornography, and was sentenced to 100 months’ imprisonment, and 40 years of supervised release. He challenged the length of his supervised release, contending that his offenses did not fall within § 5D1.2 because they were not “perpetrated against a minor.” The D.C. Circuit disagreed, noting that every other federal court to address this issue reached the same result. The district court’s reasons for imposing a 40-year sentence were apparent from the record. The court’s extended discussion about the gravity of defendant’s particular crimes and his need for extended supervision made clear that the district court based the sentence on what was reasonably necessary to protect the public, prevent a reoccurrence, and provide defendant with treatment. The 40-year term fell within the guideline range and was thus presumptively reasonable. The two allegedly similar cases mentioned by defendant were too small a sample size to support a finding of an “unwarranted disparity” in sentences, particularly when the district court explained that the images distributed by defendant were much more aggressive and troubling than the images distributed by other offenders. U.S. v. Accardi, 669 F. 3d 340 (D.C. Cir. 2012).
D.C. Circuit limits ban on patronizing places where porn is available to prevent constitutional problems. (580) Defendant pled guilty to transportation and possession of child pornography. He challenged conditions of supervised release (1) banning him from patronizing any place where pornography or erotica could be accessed; (2) restricting him, without prior approval from his probation officer, from using a computer that had access to any online computer service; and (3) requiring him to participate and complete a substance abuse program. The D.C. Circuit held that the district court did not plainly err in imposing any of the challenged conditions, though the court subjected the prohibition on patronizing any place where pornography was available to a limiting construction to prevent it from being impermissibly vague. The district court did not intend to prevent defendant from going to the library or buying a newspaper. To avoid any constitutional problem, the panel construed the ban as limited to places in which adult entertainment was the primary offering. The circuits are divided on the validity of computer restrictions. In light of the circuit split on this issue and the D.C. Circuit’s own silence on the issue, the district court did not plainly err by imposing a qualified ban on defendant’s ability to access the Internet. The courts are similarly divided on the validity of the treatment requirement, which allowed the probation officer to direct his placement in a residential program. A district court cannot “plainly” err on an issue that has divided the circuits. U.S. v. Accardi, 669 F. 3d 340 (D.C. Cir. 2012).
D.C. Circuit holds begging for leniency did not waive right to appeal supervised release terms. (580) At sentencing, defendant said he would “take lifetime probation supervision … I just ask and I beg for leniency and to send me home to my family. I’m willing to do anything—any restrictions you want to place, I’m willing to do that and more[.]” He was sentenced to 100 months of incarceration and a 40-year term of supervised release. The D.C. Circuit rejected the government’s claim that defendant waived his right to appeal the length and conditions of his supervised release or “invited” the alleged error. The substance of defendant’s statement did not align with the sentence handed down by the district court. By begging for leniency and asking the judge to “send [him] home to [his] family,” defendant clearly offered to accept lifetime supervised release as an alternative to jail time. Nowhere did he indicate his willingness to accept the sentence he now challenged, which consisted of both an extended term of incarceration and lifetime supervised release accompanied by many burdensome restrictions. U.S. v. Accardi, 669 F. 3d 340 (D.C. Cir. 2012).
D.C. Circuit upholds supervised release condition banning sex offender from loitering in arcades. (580) Defendant was convicted of attempted enticement of a minor and traveling across state lines with intent to engage in illicit sexual conduct. He challenged conditions of supervised release that barred him from loitering in arcades, parks, and other places where children congregate, possessing any type of camera, and patronizing any place where porn or erotica could be accessed. The D.C. Circuit affirmed the conditions. Defendant’s challenges to the restrictions on loitering in arcades and parks and on possessing a camera were foreclosed by U.S. v. Love, 593 F.3d 1 (D.C. Cir. 2010), a child porn case with similar facts where the circuit upheld the same conditions on plain error review. Given defendant’s request for photographs of his child-victims, these conditions were not “plainly out of sync” with the nature and circumstances of the offense, the history and characteristics of the defendant, and the need to protect the public from further crimes of the defendant. For the same reason, the ban on defendant patronizing any place where porn could be accessed was proper. U.S. v. Laureys, 653 F.3d 27 (D.C. Cir. 2011).
D.C. Circuit reverses computer restrictions where offense did not involve a computer. (580) Defendant pled guilty to several offenses involving the sexual abuse of a minor, and was sentenced to a term of imprisonment followed by supervised release. The D.C. Circuit rejected special conditions of release requiring defendant to submit to the probation office monitoring of his computer use, and to keep a daily log of any Internet activity unrelated to his employment. These computer restrictions were not reasonably related to “the nature and circumstances of the offense.” § 3553(a)(1). Although the Internet can be used to arrange sexual encounters with juveniles, any criminal can use the Internet to facilitate illegal conduct. Defendant’s offense did not involve the use of a computer, and he had no prior history of illicit computer use. The restrictions also were not related to any need to protect the public or any need to provide correctional treatment to defendant. The court committed plain error in imposing the restrictions. U.S. v. Burroughs, 613 F.3d 233 (D.C. Cir. 2010).
D.C. Circuit rejects as overly restrictive a condition barring use or possession of computer. (580) Defendant invited an undercover agent posing on the Internet as a 13-year old to have sex with him. The purported child provided her address to defendant, and he was arrested after he travelled to that address. The district court sentenced him to 46 months of imprisonment and 30 years of supervised release. A special condition of supervised release specified that defendant could not “possess or use a computer for any reason.” The D.C. Circuit held that the 30-year term of supervised release was reasonable, but that the special condition barring defendant from possessing or using a computer for any reason was not. The restriction affirmatively and aggressively interfered with the goal of rehabilitation. Defendant held a B.S. and Masters degree in engineering, and had worked for ten years as an applied systems engineer. Because the computer restriction prevented defendant from continuing in a field in which he had decades of academic and professional experience, it directly conflicted with the rehabilitative goals of sentencing. At a minimum, the condition must allow for modification by the probation department to secure a reasonable balance between the statute’s rehabilitative and deterrence goals. U.S. v. Russell, 600 F.3d 390 (D.C. Cir. 2010).
D.C. Circuit reverses where court expanded condition of release beyond oral pronouncement. (580) Defendant pled guilty to transporting and shipping child pornography. He challenged several special conditions of supervised release on the ground that they differed from the sentence announced from the bench. The D.C. Circuit found that most of the alleged discrepancies simply clarified or defined terms included in the oral pronouncement, and thus were valid. Oral pronouncements of supervised release conditions are often worded imprecisely. However, the district court did impermissibly expand a condition restricting defendant’s possession of pornography by adding in the written judgment that he “shall not patronize any place where pornography or erotica can be accessed, obtained, or viewed.” The oral pronouncement unambiguously limited the restriction to possession of pornography. U.S. v. Love, 593 F.3d 1 (D.C. Cir. 2010).
D.C. Circuit remands for clarification of scope of condition barring defendant’s computer use. (580) The district court originally ordered as a condition of probation that defendant be barred from using the internet “in any way, shape, or form until further order of the Court.” Defendant then violated his terms of probation by, among other things, posting on a website poetry and e-mail addresses through which he could be reached. The court revoked his probation and imposed a new sentence that included a period of supervised release. As a condition of release, defendant was only permitted to use the internet (1) “as any employer legally directs,” so long as he had no access to certain personal information; and (2) was barred from viewing and using internet sites that provide such personal information. The D.C. Circuit refused to determine the validity of this restriction without a clearer understanding of its scope. The condition did not explicitly state that defendant could use a computer only as “any employer legally directs,” but defense counsel stated her belief that the condition included that restriction. Moreover, because the condition could be read broadly to bar defendant from accessing any site that contained birth dates, the restriction could bar him from reading an encyclopedia or a newspaper online. The case was remanded for a clarification of the scope of the internet restriction. U.S. v. Stanfield, 360 F.3d 1346 (D.C. Cir. 2004).
D.C. Circuit rejects excessive term of supervised release and clarifies restitution order. (580) The government conceded on appeal that the district court erred in sentencing defendant to five years of supervised release on all counts. Counts 1, 3-12 and 15 were either Class C or Class D felonies subject to three years of supervised release. The D.C. Circuit remanded for the district court to correct the judgment. In addition, assuming ambiguity in the restitution order, on remand the district court must clarify that the phrase “not less than $250 as directed by the probation office” does not give the Probation Office authority to modify the monthly amount of restitution that defendant was required to make upon release from custody. The court was also directed to strike from the judgment the special condition regarding defendant’s participation in a mental health treatment program for anger control that appeared to have been inadvertently carried over from another case. Finally, defendant’s contention that the district court’s order to pay back taxes was an improper restitution order was meritless, as her obligation to pay back taxes is established by the relevant provisions of the Internal Revenue Code. U.S. v. Braxtonbrown-Smith, 278 F.3d 1348 (D.C. Cir. 2002).
D.C. Circuit agrees judge was unaware of discretion to impose shorter term of supervised release. (580) Defendant challenged the district court’s imposition of a five-year term of supervised release, arguing that the judge was unaware that under § 5D1.2(a) he had the discretion to sentence her to as few as three years. The D.C. Circuit agreed. Section 5D1.2(a) provides for a supervised release term of at least three but not more than five years for a Class A or B felony. However, the PSR erroneously stated that the guidelines required a five-year term of supervised release. Following that recommendation, the court wrote on the Statement of Reasons that the supervised release range was “– to 5 years.” Since the court admitted that if it were not “locked in” by the guidelines it would probably impose a shorter sentence, it was likely that the court would have sentenced defendant to a term of supervised release lower than the maximum specified in the guidelines. U.S. v. Calderon, 163 F.3d 644 (D.C. Cir. 1999).
D.C. Circuit upholds term of supervised release after maximum prison term. (580) The D.C. Circuit rejected defendant’s contention that the imposition of a term of supervised release following a maximum term of imprisonment constituted an illegal sentence. Although the statute provided for imprisonment for not more than five years, the language of the supervised release statute allows a court to include such release “as part of the sentence.” not “as part of the imprisonment.” These phrases suggest that imprisonment and supervised release are discrete portions of a sentence. Moreover, every court to consider this issue has held that 18 U.S.C. § 3583 permits a term of supervised release beyond the maximum term of imprisonment. U.S. v. Jamison, 934 F.2d 371 (D.C. Cir. 1991).
Kansas District Court holds it need not give credit for time served upon revocation of supervised release. (580) In a case involving the revocation of a term of supervised release, the Kansas District Court concluded that the determination of whether to give a defendant credit for time already served under the primary term of incarceration was a matter within the discretion of the district court. However, the total length of imprisonment imposed for the primary offense and supervised release violation is subject to the absolute limits set forth in 18 U.S.C. § 3583(e)(3). U.S. v. Medrano-Gonzalez, 751 F.Supp. 931 (D. Kansas. 1990).
Commission resolves conflicts in supervised release minimums and for sex offenders. (580) The Commission adopted a new application note to guideline section 5D1.2 explaining that, under subsection (c), a statutorily required minimum term of supervised release operates to restrict the low end of the guidelines term of supervised release. This is consistent with U.S. v. Gibbs, 578 F.3d 694, 695 (7th Cir. 2009), which held that when there is a statutory minimum term of supervised release, the minimum term becomes the bottom of the guideline range (replacing the bottom of the range provided by (a)) or, if it equals or exceeds the top of the guideline range provided by subsection (a), it becomes a guidelines “range” of a single point at the statutory minimum. Thus, if subsection (a) provides a range of three to five years, but the statute provides a range of five years to life, the “range” is precisely five years. See also U.S. v. Goodwin, 717 F.3d 511, 519-20 (7th Cir. 2013) (applying Gibbs to a case involving a failure to register for which 18 U.S.C. § 3583(k) required a supervised release term of five years to life). The new application note disapproves U.S. v. Deans, 590 F.3d 907, 911 (8th Cir. 2010), which held that 21 U.S.C. § 841(b)(1)(C), “trumped” subsection (a), and the guideline range became the statutory range—three years to life. 590 F.3d at 911. The Commission also amended the commentary to §5D1.2 to clarify the required five-year term of supervised release for defendants convicted under 18 U.S.C. of failing to register as a sex offender. U.S. v. Goodwin, 717 F.3d 511, 518-20 (7th Cir. 2013), held that a failure to register can never be a “sex offense” within the meaning of Application Note 1. The amendment clarifies that offenses under section 2250 are not “sex offenses,” and therefore offenses under section 2250 are not covered by subsection (b) of §5D1.2. Proposed Amendment 7, effective Nov. 1, 2014.
Commission reduces supervised release for deportable aliens. (580) In a new subsection (c) to § 5D1.1(a), the Commission created an exception to the general rule that supervised release should be imposed if the defendant is sentenced to more than one year in prison. The exception says that supervised release ordinarily should not be imposed if it is not required by statute and the defendant is a deportable alien who likely will be deported after imprisonment. Non-citizens now are approximately half of the overall population of federal offenders, and supervised release is imposed in more than 91 percent of cases in which the defendant is a non-citizen. Second, the amendment lowers the minimum term of supervised release in § 5D1.2 from three years to two years for a defendant convicted of a Class A and B felony and one year for a defendant convicted of a Class C or D felony. The amendment also adds commentary at new Application Note 5 encouraging courts to exercise their authority to terminate supervised release at any time after the expiration of one year of supervised release in appropriate cases. Amendment 756, effective November 1, 2011.
Commission authorizes limiting use of computer as condition of probation or supervised release. (580) In response to a circuit conflict, the Commission added a condition to § 5B1.3 and 5D1.3 permitting the court to limit the use of a computer or an interactive computer service where the defendant used such items in committing sex offenses. The circuit courts have disagreed about the propriety of imposing restrictions on computer use and internet access in such cases. Amendment 664, effective November 1, 2004.
Commission requires DNA samples where required by statute. (580) The Commission amended §§ 5B1.3 and 5D1.3 to require the defendant to provide a DNA sample as a condition of probation or supervised release, whenever required by statute (e.g., murder, kidnapping). Amendment 644, effective November 1, 2002.
Commission increases penalties for stalking and domestic violence. (580) The Victims of Trafficking and Violence Protection Act of 2000 amended 18 U.S.C. §§ 2261, 2261A, and 2262 to broaden the reach of those statutes to include international travel to stalk, commit domestic violence or violate a protective order. Section 2261A was also amended to protect intimate partners of the person stalked and to prohibit the use of the mail or any facility of interstate or foreign commerce to commit a stalking offense. In response, the Commission referenced the new “stalking by mail” offense to § 2A6.2 (Stalking or Domestic Violence), and increased the base offense level from level 14 to level 18. The amendment also conformed the definition of “stalking” in Application Note 1 of § 2A6.2 to the statutory changes made by the Act. Amendment 616, effective November 1, 2001.
Commission proposes to increase penalties for sexual predators. (580) In the Protection of Children from Sexual Predators Act of 1998, Pub. L. 105-314, Congress directed the Commission to increase the penalties where the defendant engaged in a pattern of activity involving the sexual abuse or exploitation of a minor. The proposed amendment offers four options that could be used either in combination or alone to implement the directive. In addition, the proposal amends the guideline covering terms of supervised release in § 5D1.2 to provide that the term of supervised release for a defendant convicted of a sex crime shall be the maximum term authorized by statute. 2001 Proposed Amendment 5A.
Commission clarifies that no supervised release is required for “safety valve” or 5K1 motion. (580) The Commission amended § 5D1.2 (Term of Supervised Release) to make it clear that a defendant who qualifies under the “safety valve” (§ 5C1.2, 18 U.S.C. § 3553(f)), or who is the beneficiary of a Government substantial assistance motion under 18 U.S.C. § 3553(e), is not subject to any statutory minimum term of supervised release. This amendment also clarifies that the requirement in subsection (a), with respect to the length of a term of supervised release, is subject to the requirement in subsection (b) that the term be not less than any statutorily required term of supervised release. Amendment 570, effective November 1, 1997.
Commission revises conditions of probation and supervised release. (580) To reflect new required conditions of probation and supervised release required by Section 203 of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1227, and other laws, the Commission revised the guideline provisions on conditions of probation and supervised release. In addition, the amendment revises §§ 5B1.3, 5B1.4, 5D1.3, and 8B1.1 to better distinguish among the statutorily required, standard, and special conditions of probation and supervised release. Amendment 569, effective November 1, 1997.
Article summarizes exclusionary rule in probation and parole revocation proceedings. (580) Craig Hemmens, assistant professor at Boise State University and Rolando V. Del Carmen, professor at Sam Houston State University collect and analyze the state and federal case law regarding the admissibility of illegally obtained evidence in probation and parole revocation hearings. According to the article, nineteen states have held that the exclusionary rule does not apply at all, while fourteen others hold that it only applies in certain circumstances such as where the officer is aware that the suspect is on probation or parole. On the other hand, five states apply the exclusionary rule and exclude the evidence. The case law is unsettled in ten additional states. Of the federal circuits, only the Fourth Circuit has held that the exclusionary rule applies. However, five circuits have applied the exclusionary rule if the officer is aware the suspect is on probation or parole or the search is for the express purpose of finding cause to revoke probation or parole. The decisions holding that the exclusionary rule applies will have to be reconsidered in light of the Supreme Court’s ruling in Pennsylvania Board of Probation and Parole v. Scott, 524 U.S. 357, 118 S.Ct. 2014 (1998) that the federal exclusionary rule does not apply to probation and parole hearings. Craig Hemmens and Rolando V. Del Carmen, The Exclusionary Rule in Probation and Parole Revocation Proceedings: Does It Apply? 61 Federal Probation, 32 (Sept. 1997).
Article authoritatively discusses law and cases on probation and supervised release. (580) Catherine Goodwin, Assistant General Counsel of the Administrative Office of the Courts, comprehensively discusses the statutes and caselaw regarding imposition, tolling and revocation of probation and supervised release. The article is intended as a reference for probation officers, and includes an excellent bibliography of articles and memoranda. This comprehensive discussion of the numerous issues that arise regarding probation and supervised release is illuminating and cogent, and the author points out areas of the law that are presently unresolved. Catherine Goodwin, Legal Developments in the Imposition, Tolling, and Revocation of Supervision, 61 Fed. Probation 76-85 (Dec. 1997).
Article says applying supervised release amendments retroactively violates ex post facto. (580) There is a conflict in the circuits over whether amendments to the statutes governing supervised release, particularly 18 U.S.C. § 3583, can be applied to defendants who committed their crimes before the amendments were adopted, without violating the ex post facto clause. Most courts have held that punishment for a supervised release violation is part of the punishment for the original offense, and therefore applying the new statutory amendment to defendants whose crimes were committed before enactment would constitute an ex post facto violation. However, the Sixth Circuit reached the opposite conclusion in U.S. v. Reese, 71 F.3d 582 (6th Cir. 1995), cert. denied, 116 S.Ct. 2529 (1996), reasoning that the punishment for a supervised release violation is separate from the punishment for the original crime. The author argues that the Sixth Circuit is wrong, because the punishment for violating supervised release is “very much a part of the original sentence.” Ryan M. Zenga, Retroactive Law or Punishment for a New Offense? ¾ The Ex Post Facto Implications of Amending the Statutory Provisions Governing Violations of Supervised Release. 19 W. New Eng. L. Rev. 499 (1997).
Commission clarifies that no supervised release is required for “safety valve” or 5K1 motion. (580) The Commission amended § 5D1.2 (Term of Supervised Release) to make it clear that a defendant who qualifies under the “safety valve” (§ 5C1.2, 18 U.S.C. § 3553(f)), or who is the beneficiary of a Government substantial assistance motion under 18 U.S.C. § 3553(e), is not subject to any statutory minimum term of supervised release. This amendment also clarifies that the requirement in subsection (a), with respect to the length of a term of supervised release, is subject to the requirement in subsection (b) that the term be not less than any statutorily required term of supervised release. Amendment 570, effective November 1, 1997.
Commission revises conditions of probation and supervised release. (580) To reflect new required conditions of probation and supervised release required by Section 203 of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1227, and other laws, the Commission revised the guideline provisions on conditions of probation and supervised release. In addition, the amendment revises §§ 5B1.3, 5B1.4, 5D1.3, and 8B1.1 to better distinguish among the statutorily required, standard, and special conditions of probation and supervised release. Amendment 569, effective November 1, 1997.
Article summarizes exclusionary rule in probation and parole revocation proceedings. (580) Craig Hemmens, assistant professor at Boise State University and Rolando V. Del Carmen, professor at Sam Houston State University collect and analyze the state and federal case law regarding the admissibility of illegally obtained evidence in probation and parole revocation hearings. According to the article, nineteen states have held that the exclusionary rule does not apply at all, while fourteen others hold that it only applies in certain circumstances such as where the officer is aware that the suspect is on probation or parole. On the other hand, five states apply the exclusionary rule and exclude the evidence. The case law is unsettled in ten additional states. Of the federal circuits, only the Fourth Circuit has held that the exclusionary rule applies. However, five circuits have applied the exclusionary rule if the officer is aware the suspect is on probation or parole or the search is for the express purpose of finding cause to revoke probation or parole. The decisions holding that the exclusionary rule applies will have to be reconsidered in light of the Supreme Court’s ruling in Pennsylvania Board of Probation and Parole v. Scott, 524 U.S. 357, 118 S.Ct. 2014 (1998) that the federal exclusionary rule does not apply to probation and parole hearings. Craig Hemmens and Rolando V. Del Carmen, The Exclusionary Rule in Probation and Parole Revocation Proceedings: Does It Apply? 61 Federal Probation, 32 (Sept. 1997).
Article authoritatively discusses law and cases on probation and supervised release. (580) Catherine Goodwin, Assistant General Counsel of the Administrative Office of the Courts, comprehensively discusses the statutes and caselaw regarding imposition, tolling and revocation of probation and supervised release. The article is intended as a reference for probation officers, and includes an excellent bibliography of articles and memoranda. This comprehensive discussion of the numerous issues that arise regarding probation and supervised release is illuminating and cogent, and the author points out areas of the law that are presently unresolved. Catherine Goodwin, Legal Developments in the Imposition, Tolling, and Revocation of Supervision, 61 Fed. Probation 76-85 (Dec. 1997).
Article says applying supervised release amendments retroactively violates ex post facto. (580) There is a conflict in the circuits over whether amendments to the statutes governing supervised release, particularly 18 U.S.C. § 3583, can be applied to defendants who committed their crimes before the amendments were adopted, without violating the ex post facto clause. Most courts have held that punishment for a supervised release violation is part of the punishment for the original offense, and therefore applying the new statutory amendment to defendants whose crimes were committed before enactment would constitute an ex post facto violation. However, the Sixth Circuit reached the opposite conclusion in U.S. v. Reese, 71 F.3d 582 (6th Cir. 1995), cert. denied, 116 S.Ct. 2529 (1996), reasoning that the punishment for a supervised release violation is separate from the punishment for the original crime. The author argues that the Sixth Circuit is wrong, because the punishment for violating supervised release is “very much a part of the original sentence.” Ryan M. Zenga, Retroactive Law or Punishment for a New Offense? ¾ The Ex Post Facto Implications of Amending the Statutory Provisions Governing Violations of Supervised Release. 19 W. New Eng. L. Rev. 499 (1997).
Commission amends supervised release guidelines. (580) In Amendment 533, effective November 1, 1995, the Commission amended §7B1.3(g)(2) to provide that the defendant may be placed on supervised release following a term of imprisonment that was imposed upon revocation of supervised release. A new commentary note 5 points out that 18 U.S.C. §3565(b) and 3583(g) make revocation mandatory where the defendant is found to be in possession of a controlled substance or firearm or by refusing to comply with a condition requiring drug testing. However, note 6 says that in the case of a defendant who fails a drug test, the court shall consider whether the availability of appropriate substance abuse programs warrants an exception from the requirement of mandatory revocation and imprisonment, as permitted in 18 U.S.C. §3563(a) and 3583(d).
Commission permits court not to impose supervised release. (580) In Amendment 529, effective November 1, 1995, the Commission amended Application Note 1 to §5D1.1 to authorize the court to depart and not impose a term of supervised release “if it determines that supervised release is neither required by statute nor required for any of the following reasons: (1) to protect the public welfare; (2) to enforce a financial condition; (3) to provide drug or alcohol treatment or testing; (4) to assist the reintegration of the defendant into the community; or (5) to accomplish any other sentencing purpose.”
Commission permits court not to impose supervised release. (580) In proposed Amendment 22, effective November 1, 1995, the Commission amended Application Note 1 to §5D1.1 to authorize the court to depart and not impose a term of supervised release “if it determines that supervised release is neither required by statute nor required for any of the following reasons: (1) to protect the public welfare; (2) to enforce a financial condition; (3) to provide drug or alcohol treatment or testing; (4) to assist the reintegration of the defendant into the community; or (5) to accomplish any other sentencing purpose.” Proposed 1995 Guideline Amendments, 60 Federal Register 25074.
Article explores supervised release, introduces related articles. (580) Harold B. Wooten, Chief of Operations of the Probation and Pretrial Services Division of the Administrative Office of the United States Courts, examines the system of supervised release designed to replace the preguidelines parole system, including revisions to the supervised release program that has made it less distinctive. He recommends a number of reforms, including elimination of the requirement that supervised release be revoked for possession or use of drugs. He also reviews a series of articles that accompany his and discusses such topics as changes in the Congressional vision of supervised release, the effect of revocation policies on court workload, and the costs of reimprisonment. Harold B. Wooten, Violation of Supervised Release: Erosion of a Promising Congressional Idea into Troubled Policy and Practice, 6 Fed. Sent. Rptr. 183-86 (1994).
Commission amendment says supervised release terms are to run concurrently. (580) In an amendment effective November 1, 1994, the Sentencing Commission amended the commentary to § 5G1.2 to provide that even where consecutive terms of imprisonment are mandated by statute, any term of supervised release is to run concurrently with any other term of supervised release.