UNITED STATES of America, Plaintiff-Appellee v. SEALED JUVENILE, Defendant-Appellant
No. 14-30357
United States Court of Appeals, Fifth Circuit
March 16, 2015
782 F.3d 747
For the foregoing reasons, the judgment of the district court is AFFIRMED.
Camille Ann Domingue, Assistant U.S. Attorney, Daniel J. McCoy, U.S. Attorney‘s Office, Lafayette, LA, for Plaintiff-Appellee.
Cristie Gautreaux Gibbens, Assistant Federal Public Defender, Federal Public Defender‘s Office, Lafayette, LA, for Defendant-Appellant.
Before BENAVIDES, SOUTHWICK, and COSTA, Circuit Judges.
This appeal concerns a 15-year-old juvenile who has been sentenced to detention and a subsequent period of juvenile delinquent supervision in connection with a conviction for abusive sexual contact with a minor who had not attained the age of 12 years. In this appeal, we review several special conditions imposed for juvenile delinquent supervision, a matter of first impression.
I. FACTUAL AND PROCEDURAL BACKGROUND
The Juvenile is a 15-year-old male who suffers from Oppositional Defiant Disorder and Bipolar Disorder, Type I, Mixed, with suicidal ideations and hallucinations. On November 3, 2013, while living on a military base with his family, the Juvenile had sexual contact with a four-year-old child. Because the offense occurred on a military base, he was charged in a sealed juvenile information with an act of juvenile delinquency by engaging or attempting to engage in a sexual act with a person who had not attained the age of 12 years, in violation of
A probation officer issued a predispositional report that described the offense conduct. The Juvenile admitted that he lied on top of the victim, that both had their pants around their ankles, that he placed his mouth on the victim‘s vagina, that he planned to put his penis into her vagina but changed his mind just before his sister entered the room, and that his erect penis was above the victim‘s vagina
After describing behavioral problems that included physical outbursts of anger and getting into fights with others, the report said the following about other sexually inappropriate behavior besides the offense conduct:
In the last year, the juvenile‘s problems transformed from being anger oriented to being sexually oriented. His parents indicated that he became obsessed with sex, and looking up sexual material on the internet. They found notes to and from various girls at school in which the juvenile discusses having sexual intercourse with the girls. He also asked his sister to engage in sexual activity with him, and aggressively held her down.
The report used the 2013 Sentencing Guidelines and calculated the advisory guidelines range as if the Juvenile was an adult. The report recommended a base offense level of 30 under U.S.S.G. §§ 2A3.1, 2A3.4, because the offense involved a criminal sexual act. Four levels were added under U.S.S.G. § 2A3.1(b)(2) because the victim was under the age of 12 years. With a three-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(a), the total offense level was 31. Because he had no prior criminal history, his criminal history score was I. With an offense level of 31 and a criminal history category of I, the advisory guidelines range was 108 to 135 months of imprisonment if the Defendant had been an adult. However, under
The district court adjudicated the Juvenile as a juvenile delinquent and sentenced him to 18 months in the Garza County Juvenile Treatment Center in Post, Texas (where he is currently detained), and to a term of juvenile delinquent supervision “until his 21st birthday, in a non-secure facility such as AMIKids in Sandoval, New Mexico.”1 In addition to the mandatory and standard conditions of supervision, the district court imposed numerous special conditions of supervision.2 Specific conditions at issue in this appeal are ones restricting the Juvenile‘s contact with children, choice of occupation, ability to loiter near certain places, and use of computers and the Internet. The Juvenile timely appealed.
II. APPLICABLE LAW
This Court has recognized that district courts have broad discretion in imposing conditions of supervised release, subject to
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner[.]
The district court may, under
III. DISCUSSION
On appeal, the Juvenile makes three major arguments. First, he argues that the district court failed to give reasons at the sentencing hearing for its decision to impose the special conditions, and thus failed to explain how the conditions were reasonably related to the factors in
A. District Court‘s Explanation for Imposing Special Conditions
For each of the special conditions, the Juvenile argues that the district court did not give any reasons for imposing the conditions at the sentencing hearing, and thus failed to explain how the conditions were reasonably related to the factors of
First, there must be an error or defect—some sort of deviation from a legal rule—that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant‘s substantial rights, which in the ordinary case means he
The Juvenile has not been able to meet this high standard. Even though the district court did not provide reasons during the sentencing hearing, it did provide a statement of additional facts in the judgment to explain the imposition of these special conditions. In that statement, the district court gave the following reasons for the sentence imposed:
The juvenile defendant J.C.C. is adjudicated delinquent for a very serious sexual offense, in which he forced a sexual act upon a four year old child. Had his sister not walked into the room, he may have had sexual intercourse with the victim. He has acted out sexually towards his sister, and is aggressive towards his siblings. He continues to try to lure his sister into his room, when he knows that this is not acceptable. He also has a history of serious mental health issues, including but not limited to suicidal ideations and hallucinations.
In addition, the district court noted that the sentencing decision was based on the recommendation of the U.S. Probation Department of the District of New Mexico, which “has an extensive history of working with juvenile offenders,” and that the Bureau of Prisons had agreed with that recommendation.
Given that the district court‘s statement refers to the nature of the offense at hand, as well as the Juvenile‘s history of serious mental health issues, we can conclude that the district court considered the factors under
B. Contact Condition
Special Condition 6 states, “The juvenile must not have contact with children under the age of 16 without prior written permission of the Probation Officer. He must immediately report unauthorized contact with children to the Probation Officer.” Because the Juvenile specifically objected to this special condition, we review for abuse of discretion. See United States v. Rodriguez, 558 F.3d 408, 412 (5th Cir. 2009). That is, we determine “whether the district court imposed conditions that are substantively unreasonable, and, therefore, abused its discretion.” Id.
The Juvenile argues that the restriction is a much greater deprivation of liberty or property than reasonably necessary for the purposes of
As to the challenge for arbitrariness, the record does not explicitly state how the district court settled on age 16 as the relevant age for the contact restriction. But the predispositional report does show, as noted in Part I, supra, that the Juvenile has a history of sexually inappropriate behavior directed toward other children, including his 12-year-old sister and girls at school who are likely close to his age. Because of this history of inappropriate conduct with children closer to 16 years old, and because “district courts have broad discretion in establishing conditions for supervised release,” United States v. Miller, 665 F.3d 114, 132 (5th Cir. 2011), we do not find the age cut-off to be arbitrary.
Turning to the Juvenile‘s challenge that the restriction is overbroad and would deprive him of much needed interaction with peers, the Government argues that any interest in associating with children his own age is outweighed by the need to protect children, and that the condition is warranted in light of the Juvenile‘s history and risk he poses to children. We agree with the Government. While it is important to ensure that the Juvenile is set on a path to becoming a healthy, productive, law-abiding citizen—one who is able to appropriately engage with and have healthy relationships with peers—such that recidivism does not occur,4 we must also account for the justifiable concerns at the time of sentencing regarding the Juvenile‘s contact with children. Considering the threat posed by the Juvenile, as shown not only by the act that formed the basis of his conviction but also other inappropriate behavior toward his sister and other children, and recognizing that the district court may modify this condition (and any of the conditions before us) under
C. Occupation Condition
Special Condition 7 states, “The juvenile is restricted from engaging in an occupation where he has access to children, without prior approval of the Probation Officer.” Because the Juvenile did not specifically object to this special condition, we review for plain error. See Alvarado, 691 F.3d at 598.
The Juvenile argues that the occupation condition is not reasonably related to the factors of
The Juvenile argues that the condition imposed a much greater deprivation of liberty or property than reasonably necessary because he “will likely be unable to find employment since most employers of
D. Loitering Condition
Special Condition 8 states, “The juvenile must not loiter with[in] 100 feet of school yards, parks, playgrounds, arcades, or other places primarily used by children under the age of 16.” Because the Juvenile specifically objected to this special condition, we review for abuse of discretion. See Rodriguez, 558 F.3d at 412.
The Juvenile argues that the restriction is not reasonably related to the factors in
The Juvenile argues that the restriction is a much greater deprivation of liberty or property than is reasonably necessary for the purposes of
Applying the common understanding of the word “loiter,” we find no abuse of discretion as to this condition. The relevant definitions of “loiter” from Merriam-Webster are “to remain in an area for no obvious reason” and “to lag behind.” Loiter, Merriam-Webster, http://www.merriamwebster.com/dictionary/loiter (last visited Feb. 20, 2015). With respect to the Juvenile‘s first challenge, the prohibition against loitering would not prevent the Juvenile from attending school because he would not be at a school to remain there for no obvious reason or to merely lag behind; he would be there to attend as a student. With respect to his second challenge—that the condition will prevent him from engaging in essential functions of a member of society—the specific language of the condition suggests otherwise. The type of places delineated as well as the limiting language of the condition imply that this condition would not restrict the Juvenile from going to a shopping center or anywhere else where children may be present, but rather from loitering near places primarily used by children under 16. Finally, regarding the Juvenile‘s third challenge, this condition will not prevent him from establishing any relationships with peers. The condition leaves open the possibility for him to go to—and even loiter near—places primarily used by people aged 16 and over. Since the Juvenile will be around 16 or 17 years old when he leaves the detention center and moves to a non-secure facility, this condition will not prevent him from interacting with people
E. Computer and Internet Conditions
The special conditions restricting the Juvenile‘s use of computers and the Internet—all challenged on appeal—are as follows:
(13) The juvenile shall not possess or use a computer with access to any “on-line computer service” at any location without the prior written approval of the probation office. The defendant must allow the Probation Officer to install appropriate software to monitor the use of the Internet.
(14) The juvenile must submit to search of person, property, vehicles, business, computers and residence to be conducted in a reasonable manner and at a reasonable time, for the purpose of detecting sexually explicit material at the direction of the Probation Officer. He must inform any residents that the premises may be subject to a search.
(15) The juvenile shall consent to the United States Probation Office conducting periodic unannounced examinations of his computer, hardware, and software which may include retrieval and copying of all data from his computer. This also includes the removal of such equipment, if necessary, for the purpose of conducting a more thorough inspection.
(16) The juvenile shall consent, at the discretion of the United States Probation Officer, to having installed on his computer, any hardware or software systems to monitor his computer use. The juvenile understands that the software may record any and all activity on his computer, including the capture of keystrokes, application information, Internet use history, em-mail [sic] correspondence, and chat conversations. Monitoring will occur on a random and/or regular basis. The defendant further understands that he will warn others of the existence of the monitoring software placed on his computer. The defendant understands that the probation officer may use measures to assist in monitoring compliance with these conditions such as placing tamper resistant tape over unused ports and sealing his computer case and conducting a periodic hardware/software audit of his computer.
(17) The juvenile shall maintain a current inventory of his computer access including but not limited to any bills pertaining to computer access; and shall submit on a monthly basis any card receipts/bills, telephone bills used for modem access, or any other records accrued in the use of a computer to the probation officer.
(18) The juvenile shall provide to the probation officer all copies of telephone bills, including phone card usage, all credit card uses, and any other requested financial information to verify there have been no payments to an Internet Service Provider or entities that provide access to the Internet.
Because the Juvenile specifically objected to these special conditions, we review for abuse of discretion. See Rodriguez, 558 F.3d at 412.
The Juvenile contends that these conditions are not reasonably related to the factors in
The Juvenile gives four specific objections that these conditions are much greater deprivations of liberty or property than reasonably necessary: (1) the restrictions are not limited to sexually explicit conduct; (2) every keystroke and other action on his computer will be monitored; (3) the conditions allow the probation officer to enter the Juvenile‘s home and seize his computer at any time; and (4) the Juvenile will have to give access to his financial records even when there is no suspicion of any improper behavior.
In arguing that the restrictions are overbroad in substantive scope, the Juvenile argues that “[r]equiring prior written approval for everyday functions that use the internet[] will entomb Juvenile Appellant and prevent him from job hunting, conducting class assignments, or even emailing with his doctors and psychiatrists.”5 We must recognize that access to computers and the Internet is essential to functioning in today‘s society. The Internet is the means by which information is gleaned, and a critical aid to one‘s education and social development. To the extent these conditions require the Juvenile to request permission every time he needs to use a computer, or every time he needs to access the Internet, we find them to be unreasonably restrictive. Moreover, the important interest underlying these computer and Internet restrictions is in preventing access to sexually explicit materials. There is already a separate condition that restricts access to sexually explicit materials, and that has not been challenged.6 Concluding that Special Condition 13 is unreasonably restrictive, the district court is instructed that Special Condition 13 is not to be construed or enforced in such a manner that the Juvenile would be required to seek prior written approval every single time he must use a
The Juvenile‘s second challenge is that it is overbroad to monitor every action on his computer.7 This Court has ruled both ways in cases addressing monitoring conditions imposed on adult offenders. Compare United States v. McGee, 559 F. App‘x 323, 328-30 (5th Cir.) (per curiam), cert. denied, — U.S. —, 135 S.Ct. 130, 190 L.Ed.2d 99 (2014) (affirming condition that required adult defendant to “install filtering software on any computer he possesses or uses which will monitor/block access to sexually oriented websites“), with United States v. Fernandez, 776 F.3d 344, 346-48 (5th Cir. 2015) (per curiam) (discussing similar cases like McGee and finding abuse of discretion in imposing software-installation condition when neither the defendant‘s failure-to-register offense nor his criminal history had any connection to computer use or the Internet). What is most distinguishable about this case from the other cases is that Appellant is a mentally ill juvenile. Given the potential influence of the Internet on his sexual development, and the apparent influence the Internet has already had on his behavior, it is in the interests of deterrence and rehabilitation to monitor his access to technology. We AFFIRM the monitoring provisions because we recognize that these provisions are useful in ensuring that the Juvenile complies with the restrictions against accessing sexually explicit materials.
As to the Juvenile‘s third challenge—that the probation officer could seize his computer at any time8—the Government responds that the district court was authorized to impose such a condition because the Juvenile is subject to the registration requirements of the Sex Offender Registration and Notification Act (“SORNA“).9 The district court did not impose a SORNA registration requirement. We need not determine whether the Juvenile would be subject to SORNA because, regardless of this, the search-and-seizure conditions are reasonably related to the Juvenile‘s history of accessing inappropriate materials on the Internet. They are also reasonably necessary, as an additional safeguard to supplement the monitoring provisions, to ensure that the Juvenile does not access prohibited materials and to check for whether he does access them. Thus, we AFFIRM the imposition of the search-and-seizure conditions.
Finally, the Juvenile complains generally that the special conditions are overbroad
IV. CONCLUSION
For the foregoing reasons, we AFFIRM AS MODIFIED with instructions that any enforcement of the conditions be subject to our interpretation, determinations, and instructions contained herein. In affirming, we reiterate that the Juvenile may seek modifications to any of the conditions under