Case Information
*1 Before P OSNER , W OOD , W ILLIAMS , Circuit Judges . W OOD Circuit Judge
. In jury convicted Patrick being felon possession firearm, violation U.S.C. §§ 922(g)(1) 924(a)(2), possessing cocaine marijuana intent distribute it, violation U.S.C. §§ 841(a)(1), (b)(1)(C), (b)(1)(D). sentenced him months’ imprisonment followed by three Shortly thereafter, Wisconsin state two *2 ‐ charges involving of minor. state court sentenced him to five years of and ordered this should follow his federal term of supervised release. When district learned of Evans’s state sex convictions two later, it modified terms of Evans’s original sentence to require Evans to attend assessment and program while supervised release his federal convictions.
On appeal, challenges district court’s modification of of his supervised He argues first did have authority change terms he did violate existing terms, and second authorized impose unrelated crimes of conviction federal court. find no merit either of points. District courts wide latitude modify terms release regardless whether violated original terms. Evans’s second argument presents closer call: terms reasonably related goals sentencing—deterrence, rehabilitation, and protecting public—in light characteristics defendant. Because Evans’s conviction contemporaneous drug firearm convictions, goals rehabilitation protecting justified court’s decision impose treatment.
I On February received federal drug firearm offenses. Eleven days later, pleaded contest Wisconsin state one count “child enticement contact” one count “sex *3 ‐ with a child age older.” The criminal complaint underlying these charges alleged Evans abducted a year old girl; forced her to smoke crack; watched her sex another woman; intercourse with her twice. The semen extracted from condom found crime scene from vaginal cervical swabs victim matched Evans’s DNA profile. The record does reflect whether Evans accepted responsibility for all alleged when he pleaded contest to charges. The Wisconsin state court sentenced Evans five years supervised release, during would be required undergo sex offender treatment. This state supervised release term follow three years federal supervised release. began serving federal supervised release term June 29, 2012. Shortly thereafter,
Probation Department contacted Wisconsin Department Corrections regarding Evans’s convictions. Wisconsin officials reported would required attend therapy state supervised Rather wait three federal end before starting Evans’s therapy, probation department petitioned include therapy Evans’s federal release, “to provide risk assessment interventions designed reduce likelihood this behavior would occur future.”
On November held hearing address department’s petition. explained “Evans’s status before today [is] what it sentenced him *4 supervised release,” since the could take the into account at original sentencing because Evans yet been of those charges. It concluded supervised release terms could modified light of “changed circumstances” and accepted department’s recommendation to order Evans to attend while serving federal supervised
II Because objected new condition, we review district court’s decision an of discretion. Sines (7th Cir. 2002). first argues lacked authority modify terms of supervised release did violate original conditions. can readily dispose of this claim. The statute governing supervised release, U.S.C. § 3583(e)(2), allows “to modify, reduce enlarge con ‐ ditions of release any time prior expira ‐ tion termination term re ‐ lease, pursuant … Federal Rule Criminal Procedure [32.1] and provisions applicable initial setting terms and conditions post release supervision.” (Empha ‐ sis added). When initially setting terms and post supervision, “consider[] fac ‐ tors set forth §§ 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7).” U.S.C. § 3583(c). fac ‐ tors forth § 3553(a) include “ nature circum stances characteristics defendant”; “the need imposed [] afford adequate deterrence criminal conduct,” “to from further crimes defendant,” “to *5 provide defendant needed educational or vocation al training, medical care, or other correctional treatment in most effective manner.” U.S.C. §§ (a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D).
Nothing Section 3583(e)(2) requires a violation of existing conditions, or even changed circumstances, identifies authority that suggests as much. To contrary, that statute expressly refers “the provisions of Federal Rules of Criminal Procedure” relating modifications or initial imposition supervised release, Rule 32.1 (the relevant rule) has a Committee note explaining “conditions should be subject modification, for sentencing must able respond changes probationer’s circumstances as well as new ideas methods rehabilitation.” have explained “just district has wide discretion imposing terms supervised release, so too it wide discretion modifying terms release.” Sines (citation omitted). This rule sensible: one can envision a host scenarios would serve both defendant penological system allow district courts latitude modify terms even though defendant has violated them. For instance, a may demonstrate quicker than expected rehabilitation justifies lifting restrictive condition earlier originally prescribed; or new, more effective may become available defendant’s (perhaps new form drug therapy, psychological conditions); behavior prison might persuade more stringent terms are appropriate. law gives power modify terms *6 order take account changed circumstances, whether not the defendant has already violated existing terms.
III
Even if had power make changes, argues it went too far case. Any modification, like original conditions, (1) “reasonably related factors identified § 3553(a), including nature and circumstances and characteristics defendant; (2) involve greater deprivation liberty is reasonably necessary purposes forth § 3553(a); (3) [be] consistent policy statements issued by Sentencing Commission.” Ross (7th Cir. 2007). Policies emphasized by Sentencing Commission include deterrence, rehabilitation, protecting public. Id. contends offender treatment condition does meet criteria unrelated gun drug he was being sentenced.
Ross presented question similar one now before us. was making false statements FBI, imposed treatment as special Ross argued was reasonably related conviction. Nothing indictment, plea agreement, pre report suggested part charged offense. Ross further claimed reasonably related personal history, never been charged *7 with of offense. Id. concluded that the was reasonably related to the offense Ross’s lies to the FBI indicated “fantasized about crimes against children.” Id. at 875. Even so, Ross does answer question we are faced with here. First, the standard of review was more deferential in Ross : question was only whether challenged conditions amounted miscarriage justice, whether they were an abuse discretion. Id. Second, Ross defendant’s lies FBI related crimes involving children. Thus, one could see how conduct which Ross being sentenced related child abuse.
Other circuits have addressed situations like Evans’s, where sexual abuse has nothing do un ‐ derlying sentencing standard review is discretion. majority hold there be some connection between defendant’s prior sexual misconduct present application factors forth Section 3553(a). One way connection can be shown is temporal. Even if there is substantive connection between crime punishment defendant’s sexual miscon duct, sexual misconduct may be so recent prominent defendant’s behavior sentencing aiming rehabilitate would be entitled address it.
Other courts have upheld conditions misconduct so recent contemporary characteristic defendant’s profile time sentencing; they vacated such if last incident so remote time does support any *8 8 12 3726 present need rehabilitate defendant or public. For instance, in United States v. Scott F.3d (8th Cir. 2001), Eighth Circuit vacated a sex offender treatment condition included in defendant’s sentence for crime armed robbery, condition was predicated on a sexual offense that occurred in 1986. Id. at 633. The reasoned that because there was no evidence that “has a propensity commit any future sexual offenses, [he] has repeated this behavior in any way since conviction …, special conditions seem unlikely serve goals deterrence safety, since behavior on which special conditions are based, though highly reprehensible, has ceased.” Id. at 636. But in United States v. Smart, F.3d (8th Cir. 2006), same affirmed sex in a for being a felon in possession a firearm, where offenses had occurred more recently, 1999. The explained “Smart’s sexual offenses were much closer time imposition special conditions” were Scott. Id. at 559. In contrast Scott, who had sexual over a decade, Smart still on probation for latest abuse time he committed present offense, still an outstanding warrant violation latest offense. Id. Ninth Circuit has held “supervised conditions need relate [defendant] so long they satisfy any forth [in Section 3553(a)].” T.M., (9th Cir. 2003). But case, vacated prior kidnapping conviction charges previous *9 9 12 ‐ 3726 sexual relationship with a minor occurred twenty and forty years earlier, and “[s]upervised conditions predicated upon twenty year ‐ old incidents, without more, do promote the goals public protection and deterrence.” Id. at 1240. Citing these decisions, the Sixth Circuit vacated a sex offender treatment that predicated on a sexual offense committed 17 earlier in for a firearms conviction. United States v. Carter , 463 F.3d 526, 532 33 (6th Cir. 2006). But found that sex ‐ offender could be predicated on defendant’s two year old stalking conviction, so long as verified defendant “committed offense a manner.” Id. 533. See also United States v. Weatherton , F.3d (5th Cir. 2009) (sex conditions could be predicated on rape conviction warrant charging with rape, rape allegations warrant were specific contained sufficient indicia reliability); Hahn (10th Cir. 2008) (“While conditions imposed Mr. Hahn do relate nature circumstances offense, they do relate history characteristics, given recent conviction involving minor children. The are also reasonably related need ‘to public from further crimes defendant.’”) (emphasis added). common theme decisions is ‐ is reasonably related factors Sec ‐ tion 3553(a), even if conviction ‐ fense, so long are recent enough goals rehabilitation pro tecting justify an order treatment. agree other circuits held there *10 some nexus shown between sexual misconduct ap ‐ plicability Section 3553(a) factors current ‐ fense. Had Evans’s last incident sexual misconduct oc ‐ curred rather we would serious possibility discretion our hands. It difficult see how therapy would suddenly neces ‐ sary twenty later rehabilitate protect public. But Evans’s sexual occurred nearly same time as drug firearm offenses. When stood before sentencing court, were remote part history, but instead part pend ‐ ing, unpunished criminal conduct. court’s dis cretion extends ability address recent still untreated offenses, part its authority impose terms designed deter future crimes, rehabilitate defendant, public.
* * * A FFIRM judgment court.