Case Information
*1 FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT (cid:252) TATES OF A MERICA , No. 11-30256 Plaintiff-Appellee, (cid:253) D.C. No. v. 3:10-cr-00240-MO-1 D AVID L OUIS J OHNSON , OPINION (cid:254) Defendant-Appellant.
Appeal from the United States District Court for the District of Oregon Michael W. Mosman, District Judge, Presiding Argued and Submitted October 11, 2012—Portland, Oregon Filed October 30, 2012 Before: Barry G. Silverman, Richard R. Clifton, and N. Randy Smith, Circuit Judges.
Opinion by Judge Clifton COUNSEL C. Renée Manes, Assistant Federal Public Defender, Portland, Oregon, for defendant-appellant David Johnson.
Kelly A. Zusman (argued) and Johnathan S. Haub, Assistant U.S. Attorneys, Portland, Oregon, for plaintiff-appellee United States.
OPINION
CLIFTON, Circuit Judge:
This appeal presents the question of whether a district court may require a sexual offender assessment—not treatment, just an assessment—as a condition of supervised release when the defendant has two decades-old prior sexual offense convic- tions involving weapons, when the current offense also involves a weapon, and when the defendant’s prior comple- tion of sex offender treatment cannot be confirmed. We con- clude that it may require such an assessment and affirm the condition imposed in this case.
I. Background
Defendant David Louis Johnson pled guilty to knowing and unlawful possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district court sentenced him to five years of supervised release subject to special condi- tions. At the suggestion of the Probation Office, the district court later modified the sentence to require that Johnson undergo a sexual offender assessment as an additional condi- tion of his supervised release.
Johnson had two previous sexual offense convictions. In 1980, Johnson raped a nineteen year-old woman twice at knife point. He was sentenced to nine years in prison for rape, sodomy, kidnaping, and false imprisonment. In 1990, Johnson raped a fourteen year-old girl at gunpoint. He was sentenced to thirteen years in prison for rape. Though Johnson claims that he underwent sexual offense treatment in the past, the Probation Office was unable to verify this claim. The district court acknowledged that Johnson’s sexual offense convictions were dated, specifically referencing our decision in United States v. T.M. , 330 F.3d 1235 (9th Cir. 2003). But it also found that a sexual offender assessment was a “very minor restraint on liberty.” The district court decided that its “obligation for the safety of the public, as well as the rehabilitation of this defendant” justified the sexual offender assessment condition.
Before the district court Johnson argued that if the sexual offender assessment included a polygraph exam, then the assessment would violate his Fifth and Sixth Amendment rights. Without concluding that, the district court ordered that the sexual offender assessment exclude a polygraph exam. Johnson did not express any further concerns about the consti- tutionality of the sexual offender assessment at the district court.
Johnson now challenges the reasonableness of the sexual offender assessment condition. He also argues that the sexual offender assessment violates his Fifth Amendment right against self-incrimination.
II. Reasonableness of the condition
[1]
We review the district court’s decision to impose a
condition of supervised release for an abuse of discretion.
United States v. Baker
,
[2] The district court did not abuse its discretion in order- ing the sexual offender assessment condition. Johnson was twice convicted of serious and violent sexual offenses. In addition, Johnson’s current offense involved possession of a gun, the same sort of weapon he used as a sexual offender. Johnson’s history as a sexual offender, old as it may be, justi- fied the district court’s decision to order a sexual offender assessment. After the district court receives the results of the assessment, it will be better able to determine if additional conditions are necessary to protect the public and rehabilitate Johnson.
Johnson argues that
United States v. T.M.
, 330 F.3d 1235
(9th Cir. 2003), curtails the district court’s discretion to order
sexual offender assessments on the basis of stale convictions.
Johnson reads
T.M.
too broadly. In
T.M.
, we held that the
defendant’s twenty-one year-old conviction and forty-one
year-old sexual offense charge did not justify several stringent
conditions of supervised release, including the requirement
that he participate in a sexual offender treatment program and
submit to necessary testing.
Id.
at 1240. Sexual offender treat-
ment programs can be very significant restraints on liberty.
See United States v. Weber
, 451 F.3d 552, 563 (9th Cir.
2006). Johnson must undergo only an assessment, which is a
much less significant restraint. Further, in
T.M.
, the record
included detailed information regarding the defendant’s prog-
ress in his sexual offense treatment.
T.M
., 330 F.3d at 1241
n.5. The record in this case does not, and Johnson’s assess-
ment will enable the district court to make a more informed
decision. We have consistently noted that district courts have
“wide latitude” to craft conditions of supervised release.
Weber
, 451 F.3d at 557.
T.M.
does not narrow a district
court’s discretion so greatly that the age of a defendant’s con-
victions forecloses its consideration of other statutory factors.
III. Fifth Amendment claim
Johnson’s constitutional challenge to the sexual offender
assessment with a polygraph exam is not ripe. The district
court excluded a polygraph exam from the assessment. As a
result, a polygraph exam does not present “actual or immi-
nent” harm to Johnson.
See United States v. Antelope
, 395
F.3d 1128, 1132 (9th Cir. 2005). Johnson did not challenge
the constitutionality of the condition as ordered at the district
court, so we do not address it here.
See United States v. Reyes
,
AFFIRMED .