463 F.3d 526 | 6th Cir. | 2006
Lead Opinion
MOORE, J., delivered the opinion of the court, in which CLAY, J., joined.
GRIFFIN, J. (p. 533), delivered a separate opinion concurring in the result.
OPINION
Defendant-Appellant Larry W. Carter appeals the imposition of a special supervised-release condition mandating sex-offender treatment. Carter challenges the condition on the ground that it is not reasonably related to either his instant conviction of being a felon in possession of a firearm or his convictions for sex offenses committed in 1988. Carter also challenges one aspect of the treatment program— polygraph testing — on the ground that it violates his Fifth Amendment privilege against compelled self-incrimination.
Because Carter’s instant conviction is not a sex offense and Carter’s prior convictions are either too remote in time or not clearly sexual in nature, we VACATE the special condition. We instruct the district court on REMAND to determine whether Carter’s 2004 stalking conviction is sexual in nature and therefore provides an independent basis for the special condition. This resolution makes it unnecessary to address the Fifth Amendment challenge.
I. BACKGROUND
In 2001, Carter pleaded guilty to being a convicted felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). After the sentence initially imposed was reversed for reasons not relevant here, see United States v. Carter, 60 F. App’x 601 (6th Cir.2003) (per curiam) (unpublished opinion), Carter was resen-tenced in 2003 to thirty months’ imprisonment and three years’ supervised release. The sentence included the following special
On September 29, 2004, Carter admitted to violating the standard supervised-release conditions barring him from committing another crime or associating with a convicted felon without his probation officer’s permission. The district court revoked Carter’s supervised release and imposed a sentence of twelve months’ imprisonment and two years’ supervised release. The district court reimposed the same supervised-release conditions, including the special condition of mental-health treatment quoted above.
In May 2005, the government petitioned the district court to modify the special condition. The proposed new condition provided:
The defendant shall participate as directed in a program of mental health treatment, including a sexual offender treatment program and evaluation, as approved by the Probation Officer. The defendant shall abide by the rules, requirements, and conditions of the treatment program, including submitting to polygraph testing, to aid in the treatment and supervision process.
J.A. at 25 (Petition for Warrant or Summons for Offender Under Supervision). Carter filed an objection on the ground that the modified condition was inconsistent with the statutory requirements governing the imposition of special supervised-release conditions. At the subsequent hearing on the modification petition, Carter objected on Fifth Amendment grounds to the portion of the condition mandating polygraph testing. After the hearing, the district court granted the government’s modification petition.
II. ANALYSIS
A. Standard of Review
We review the imposition of a supervised-release condition for abuse of discretion. United States v. Ritter, 118 F.3d 502, 504 (6th Cir.1997). “Abuse of discretion is defined as a definite and firm conviction that the trial court committed a clear error of judgment. A district court abuses its discretion when it relies on clearly erroneous findings of fact, or when it improperly applies the law or uses an erroneous legal standard.” United States ex rel. A+ Homecare, Inc. v. Medshares Mgmt. Group, Inc., 400 F.3d 428, 450 (6th Cir.) (internal quotation marks omitted), cert. denied, — U.S. —, 126 S.Ct. 797, 163 L.Ed.2d 630 (2005).
B. Sex Offender Treatment
We review the imposition of a special condition of supervised release along two dimensions. One dimension is procedural: “ ‘The [district] court, at the time of sentencing, [must] state in open court the reasons for its imposition of the particular sentence,’ including its rationale for mandating special conditions of super
Carter’s attack is instead directed at the second, substantive dimension along which we review special supervised-release conditions. We have said, “This Circuit mandates that where a condition of supervised release is reasonably related to the dual goals of probation, the rehabilitation of the defendant and the protection of the public, it must be upheld.” United States v. Bor-tels, 962 F.2d 558, 560 (6th Cir.1992) (per curiam). This statement was an oversimplification, as the statutory requirements are actually more detailed. A sentencing court may impose a non-mandatory condition of supervised release
Carter basically argues that the special condition is not “reasonably related” to either “the nature and circumstances of the offense” or “the history and characteristics of the defendant,” 18 U.S.C. §§ 3553(a)(1), 3583(d)(1), and therefore constitutes a “greater deprivation of liberty than is reasonably necessary,” id. § 3583(d)(2), to achieve the sentencing purposes of deterrence, protection of the public, and rehabilitation of the defendant, id. § 3553(a)(2)(B)-(D).
We next address whether the special condition is reasonably related to “the history and characteristics of the defendant.” 18 U.S.C. § 3553(a)(1). In actuality, our inquiry is whether the special condition is reasonably related to Carter’s criminal history, as the government has offered no evidence of other “characteristics of the defendant.” When explaining its decision to modify the special condition, the district court relied on sex offenses that Carter committed in 1988:
[G]iven the defendant’s presentenee report, which contains a conviction in 1988 for rape during a burglary and a conviction of assault with intent to commit rape and an attempt to commit a felony which had some similarity to the other offenses, it seems to me that [the special condition] could have been ordered at the initial sentencing on the supervised release violation. Given the defendant’s history of convictions for sexual offenses, I could have ordered at the time*531 that he participate in a sexual offender treatment evaluation and program. And since I could have ordered it at that time, I can order it today without any further hearing.
J.A. at 38 (Hr’g Tr. at 9); see also J.A. at 51-53 (2001 Presentence Investigation Report at 6-8). Before this court, the government defends the special condition on the basis of both the 1988 offenses and Carter’s guilty plea to a Tennessee charge of stalking in 2004, just months before the modification hearing. Appellee Br. at 6, 9; J.A. at 19 (Pet. on Probation and Supervised Release, Memo, at 2).
We first consider the 1988 offenses. There is no doubt that they were sexual in nature. Carter argues, however, that these offenses were too remote in time to justify the imposition of a sex-offender-treatment condition in 2005 (which is when the mental-health condition was modified to a sex-offender condition). It appears that this is a matter of first impression in this circuit,
[Tjhere is no evidence supporting the need for the special conditions in [this] case. [The defendant] was convicted of a sexual offense in 1986, but the “special conditions of sex offenders” had never been imposed on [him] prior to the 2001 sentence. The government presented no evidence that [the defendant] has a propensity to commit any future sexual offenses, or that [he] has repeated this behavior in any way since his 1986 conviction. Therefore, the special conditions seem unlikely to serve the goals of deterrence or public safety, since the behavior on which the special conditions are based, though highly reprehensible, has ceased.
Scott, 270 F.3d at 636. The Ninth Circuit employed similar reasoning in vacating sex-offender conditions imposed on the basis of even older convictions:
The conditions imposed run afoul of the supervised release statute because there is no reasonable relationship between them and either deterrence, public pro*532 tection or rehabilitation.... [The sex offenses] took place twenty and forty years ago respectively. Supervised release conditions predicated upon twenty-year-old incidents, without more, do not promote the goals of public protection and deterrence. The fact that [the defendant] has lived the last twenty years without committing a sex offense suggests that he no longer needs to be deterred or shielded from the public.
T.M., 330 F.3d at 1240 (citations omitted). See also United States v. Kent, 209 F.3d 1073, 1074, 1077 (8th Cir.2000) (vacating a condition mandating psychological counseling where the last instance of physical abuse was at least thirteen years prior to the sentencing hearing). We adopt the persuasive reasoning of Scott, T.M., and Kent. We need not and do not decide precisely how much time must elapse before a sex offense becomes too remote in time to be reasonably related to a sex-offender condition, as the instant gap — • Carter’s 1988 sex offenses occurred seventeen years before the imposition of the sex-offender-treatment condition in 2005
We now turn to whether the special condition can be justified by the 2004 stalking conviction. The statute under which Carter was convicted provided: “A person commits the offense of stalking who intentionally and repeatedly follows or harasses another person in such a manner as would cause that person to be in reasonable fear of being assaulted, suffering bodily injury or death.” TENN. CODE ANN. § 39 — 17—315(a)(1) (2004).
In sum, the sex-offender-treatment condition is not reasonably related to either the instant offense of being a felon in possession of a firearm or Carter’s criminal history (as reflected in the record). Thus, we vacate the special condition. We instruct the district court on remand to determine whether the nature and circumstances of the 2004 stalking offense justify reimposition of the special condition. We note that because the polygraph-testing requirement is part of the sex-offender-treatment condition (rather than an independent condition), it is vacated along with the rest of the condition. This result makes it unnecessary to reach Carter’s Fifth Amendment claim, and we express no opinion on its merits.
III. CONCLUSION
For the reasons set forth above, we VACATE the special condition and REMAND for further proceedings consistent with this opinion.
. The modification ordered by the district court was worded slightly differently than that proposed by the government:
The defendant shall participate as directed in a program of mental health treatment, including a sexual offender treatment program and evaluation as approved by the Probation Officer. The defendant shall abide by the rules, requirements, and conditions of the treatment program, including submitting to polygraph testing, to aid in the treatment and supervision process approved by the Probation Officer.
J.A. at 29 (Order Granting Pet. to Modify Conditions of Release). These minor differences are insignificant and therefore have no bearing on our analysis.
. A district court’s failure to explain its reasons for imposing a special condition will be deemed harmless error, however, if such reasons are clear from the record. United States v. Berridge, 74 F.3d 113, 119 (6th Cir.1996).
. The district court may choose from among most of the conditions enumerated in 18 U.S.C. § 3563(b) or impose "any other condition it considers to be appropriate.” 18 U.S.C. § 3583(d).
. These three requirements are also encapsulated in the following Guidelines policy statement:
The court may impose other conditions of supervised release to the extent that such conditions (1) are reasonably related to (A) the nature and circumstances of the offense and the history and characteristics of the defendant; (B) the need for the sentence imposed to afford adequate deterrence to criminal conduct; (C) the need to protect the public from further crimes of the defendant; and (D) the need to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; and (2) involve no greater deprivation of liberty than is reasonably necessary for the purposes set forth above and are consistent with any pertinent policy statements issued by the Sentencing Commission.
U.S. SENTENCING GUIDELINES MANUAL (U.S.S.G.) § 5D1.3(b) (2003).
. Carter's brief might be read to include the independent argument that the imposition of the special condition is not "consistent with any pertinent policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3583(d)(3). This argument relies on (1) the fact that the pertinent Guidelines policy statement recommends a sex-offender-treatment condition "[i]f the instant offense of conviction is a sex offense,” U.S.S.G. § 5D1.3(d)(7), and (2) the fact that being a felon in possession of a firearm is not a sex offense, see id. § 5D1.2 cmt. n. 1. However, the policy statement also provides that special conditions "may otherwise be appropriate in particular cases.” Id. § 5D1.3(d). Therefore, the mere fact that the instant offense is not a sex offense does not make the imposition of the special condition inconsistent with the policy statement.
. The government informed the district court of the 2004 stalking conviction at the modification hearing. J.A. at 37 (Hr’g Tr. at 8). As the passage quoted above makes clear, however, the district court did not rely on the 2004 stalking conviction in imposing the special condition, as it made no mention of the offense at all. Furthermore, the allusion to the presentence report cannot be understood to incorporate the 2004 conviction because the report was completed in 2001.
. Contrary to Carter’s assertion, Modena is not quite on point. There, we vacated special conditions forbidding the use of alcohol and mandating drug and alcohol testing and treatment where there was no evidence of substance abuse whatsoever. Modena, 302 F.3d at 636. Therefore, we did not face the issue of whether otherwise relevant conduct was too remote in time to "count” as the basis for a special condition.
. Noting that he was in prison for many of these seventeen years, the government argues that Carter should not be fully credited for refraining from committing sex offenses during this period. To the extent that the government is suggesting that Carter could not have committed sex offenses in prison even if he had wanted to, prison-violence studies and the prison-violence cases regularly brought in the federal courts suggest otherwise. See, e.g., Hudson v. Palmer, 468 U.S. 517, 526, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984); Farmer v. Brennan, 511 U.S. 825, 853, 114 S.Ct. 1970, 128 L.Ed.2d 811 n. * (1994) (Blackmun, J„ concurring); United States v. Bailey, 444 U.S. 394, 421, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980) (Blackmun, J., dissenting); McGhee v. Foltz, 852 F.2d 876, 880 (6th Cir.1988). Moreover, if Carter had committed a sex offense while in prison, there is little doubt that the government (appropriately) would rely on it to support the imposition of a sex-offender condition. The government is not entitled to a one-way ratchet wherein prison behavior may count against but not in favor of the defendant.
. The statute has since been amended; it now provides: " 'Stalking' means a willful course of conduct involving repeated or continuing harassment of another individual that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested, and that actually causes the victim to feel terrorized, frightened, intimidated, threatened, harassed, or molested[.]'' TENN. CODE ANN. § 39-17-315(a)(4) (2005). Of course, the relevant statute for present purposes is the one we quote in the text: the 2004 version in effect when Carter committed the offense.
.This point is confirmed when one compares the language of the 2004 statute to the prior (1994) version, which provided: “A person commits the offense of stalking ... [w]ho repeatedly follows or harasses another person with the intent to place that person in reasonable fear of a sexual offense, bodily injury or death; and ... [w]hose actions would cause a reasonable person to suffer substantial emotional distress; and ... [w]hose acts induce emotional distress to that person.” TENN. CODE ANN. § 39-17-315(a)(l) (1994) (emphasis added). The disjunctive phrase "reasonable fear of a sexual offense, bodily injury or death” demonstrates that the 1994 version encompassed both sexual and nonsexual conduct. The 2004 version under which Carter was convicted replaced "a sexual offense” with "being assaulted,” making the relevant phrase "reasonable fear of being assaulted,
. Obscenity is associated with sex in the First Amendment context, but it also has a more general meaning that is not necessarily related to sex. See, e.g., BLACK’S LAW DICTIONARY (8th ed. 2004) ("Extremely offensive under contemporary community standards of morality and decency; grossly repugnant to the generally accepted notions of what is appropriate.”); OXFORD ENGLISH DICTIONARY (2d ed.1989) ("1. Offensive to the senses, or to taste or refinement; disgusting, repulsive, filthy, foul, abominable, loathsome.”); WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY (1981) (“1 a: disgusting to the senses usu. because of some filthy, grotesque, or unnatural quality ____ b: grossly repugnant to the generally accepted notions of what is appropriate ....”).
Concurrence Opinion
concurring.
I concur in the result reached by the majority, but, on remand, I would not limit the discretion of the sentencing judge. I view it imprudent to establish a bright-line rule regarding how remote in time a prior conviction must be before it is not reasonably related to a district court’s sentencing calculations. However, I agree with the majority that on this record, the government did not demonstrate, and the district court did not sufficiently explain, why, if at all, Carter’s prior sex offenses were reasonably related to the imposition of the specific condition of mental-health treatment seventeen years later.
On remand, I would not preclude the sentencing judge from articulating reasons, if any, why defendant’s 1988 rape and assault with intent to commit rape
For these reasons, I would not limit the discretion of the district court on remand.
