United States v. William Elijah Trailer
827 F.3d 933
11th Cir.
2016
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UNITED STATES of America, Plaintiff-Appellee, v. William Elijah TRAILER, Defendant-Appellant.

No. 15-14583

United States Court of Appeals, Eleventh Circuit.

June 30, 2016

933

Non-Argument Calendar

juries to a child while tobogganing in defendants’ sandpit. The court found that, although the landowners had not manifested any affirmative intent to allow such activities, the objective standard in the law provided them with protection against liability.

We agree with those courts finding a subjective intent requirement is not required under recreational use statutes. Instead, it is enough that the Academy‘s purposeful actions implicitly allowed or acquiesced in Mr. Nelson‘s use of the path. Its knowledge that the path was used by the general public, combined with its knowledge of the sign and its refusal to remove it, is enough to demonstrate permission under the Act. Furthermore, requiring intent for both direct and indirect permission would read the term “indirect” out of the statute. Imputing a subjective intent requirement could also lead to varying results, based only on the supposed subjective intention of landowners.

In sum, landowners are entitled to protection by knowingly permitting recreational use of their property. Under a plain reading of the statute, the Academy “indirectly permitted” Mr. Nelson‘s use of the path through its conduct. It knew of the public‘s use of thе path and declined the opportunity to end that use.

C. Willful or Malicious Conduct

Because we find the Academy is entitled to protection under the Recreational Use Act, we reverse the district court‘s judgment that Mr. Nelson can recover as a licensee or invitee. The Recreational Use Act does not, however, completely eliminate liability. Liability is still possible for “willful or malicious” failure to warn.

The Academy urges us to resolve this question, arguing that several findings of fact by the district court show that no willful or malicious conduct occurred. For example, the district court found that the only government employee who knew about the sinkhole failed to report it, not out of malice, but because he believed the path was not used and, thus, that no one was in danger. The government claims this conduct alone could not be willful or malicious. Mr. Nelson counters that the district court did not аdjudicate this issue, and that it should be the first to do so. We agree with Mr. Nelson that the district court should decide this issue in the first instance.

III. Conclusion

We REVERSE the district court‘s judgment and REMAND for further proceedings consistent with this opinion.

George L. Beck, Jr., Sandra J. Stewart, John J. Greer, III, Jonathan Ross, U.S. Attorney‘s Office, Montgomery, AL, for Plaintiff-Appellee.

Donnie Wayne Bethel, Christine A. Freeman, Patricia Vanessa Kemp, Federal Defender Program, Inc., Montgomery, AL, Kevin L. Butler, Federal Public Defender, Birmingham, AL, Defendant-Appellant.

Before HULL, MARCUS, and JULIE CARNES, Circuit Judges.

PER CURIAM:

Defendant William Trailer appeals his 18-month sentence and life term of supervised release, imposed for violating the terms of supervised release that were part of his sentence ‍​​​​‌​​‌​​​‌‌‌‌‌‌​​‌​​‌​​​‌‌‌‌‌​​​​‌​​​​‌​‌​​​​​‍for failing to register as a sex offender. Defendant argues that the life term of supervised release is substantively unreasonable. After careful review, we affirm.

I. BACKGROUND

In 2011, Defendant was sentenced to 37 months’ imprisonment and a life term of supervised release after pleading guilty to one count of failing to register as a sex offender, in violation of 18 U.S.C. § 2250. As a special condition of his supervised release, Defendant was prohibited from having contact with children under the age of 18.

Defendant‘s supеrvised release commenced in August 2014. Just a few months later, on February 26, 2015, Defendant‘s probation officer filed a petition seeking revocation of his supervised release. The petition stated that Defendant had violated the conditions of his supervised release by (1) living with his now-wife‘s four minor сhildren, (2) failing to follow his probation officer‘s instructions to have no contact with these children, (3) committing another crime by violating Alabama‘s Community Notification Act, and (4) failing to answer truthfully inquiries by his probation officer related to whether he was having contact and residing with the children.

At the revoсation hearing, Defendant admitted to the violations set forth in the petition, and the district court revoked his supervised release. The district court calculated a guideline range of 18 to 24 months’ imprisonment based on a Class B violation and a criminal history category of V. Defendant requestеd a lenient sentence because the offense that led to his status as a sex offender had occurred decades earlier. He explained that he had violated the conditions of his supervised release out of a desire to do what was right for his wife and her children. He further assеrted that a life term of supervised release was not appropriate given that he has to register as a sex offender for the rest of his life.

Emphasizing that this was not a hearing about the severity of the sex offender laws, but was instead a hearing for Defendant‘s violations of supervised relеase, the district court stated that Defendant had ignored the terms of his supervised release and lied about it to his probation officer. After considering the 18 U.S.C. § 3553(a) factors, the district court sentenced Defendant to 18 months’ imprisonment, to be followed by a life term of supervised release with many of the same conditions of supervised release as his original sentence. Defendant objected to the life term of supervised release as excessive, and the district court responded that it was merely continuing the term of supervised release that was previously imposed on Defendant.

II. DISCUSSION

Defendant‘s sole argument on appeal is that the district court‘s imposition of a life term of supervised release is substantively unreasonable because it is greater than necessary to accomplish the goals of sentencing and is not reasonably related to thе 18 U.S.C. § 3553(a) factors.1

Using a two-step process, we review the reasonableness of a district court‘s sentence for abuse of discretion. , cert. denied, ; (reviewing a sentence imposed upon revocation of supervised release for reasonableness). We first look to whether the district court committed any significant procedural error, such as miscalculating the advisory guideline range, treating the Sentencing Guidelines as mandatory, failing to consider the 18 U.S.C. § 3553(a) factors,2 selecting a sentence based on clearly erroneous facts, ‍​​​​‌​​‌​​​‌‌‌‌‌‌​​‌​​‌​​​‌‌‌‌‌​​​​‌​​​​‌​‌​​​​​‍or failing to adequately explain the chosen sentence. . Then, we examine whether the sentence is substantively reasonable in light of the totality of the circumstances and the § 3553(a) factors.

The party challenging the sentence bears the burden of showing that it is unreasonable. . We will only vacate a defendant‘s sentence if we are “left with the definite and firm cоnviction that the district court committed a clear error of judgment in weighing the § 3553(a) factors by arriving at a sentence that lies outside the range of reasonable sentences dictated by the facts of the case.” (quotation omitted).

If a defendant violates a condition of his supervised release, the district court may revoke a defendant‘s supervised release and impose a prison term. 18 U.S.C. § 3583(e)(3). The district court may also impose a new term of supervised release which “shall not exceed the term of supervised release authorized by statute for the offense that resulted in the original term of supervised release, less any term of imprisonment that was imposed upon revocation of supervised release.” Id. § 3583(h).

In the present case, Defendant has not met his burden of showing that the district court abused its discretion by imposing a life term of supervised release. The statutorily-authorized term of supervised release for failing to register as a sex offender under 18 U.S.C. § 2250 is five years to life. 18 U.S.C. § 3583(k). Thus, Defendant‘s life term of supervised release is within the statutory range.3 See 18 U.S.C. § 3583(h), (k).

The district court‘s imposition of a life term of supervised release is also supported by the § 3553(a) factors. In particular, the offense that led to Defendant‘s status as a sex offender involved sexually аbusing his then-girlfriend‘s eight-year-old daughter. With respect to the nature of the present violations, Defendant was not only living with four children between the ages of two and nine, but he was also ‍​​​​‌​​‌​​​‌‌‌‌‌‌​​‌​​‌​​​‌‌‌‌‌​​​​‌​​​​‌​‌​​​​​‍going to the children‘s elementary school on a regular basis. By doing so, he blatantly disregarded the terms of supervised rеlease that were meant to protect against the same conduct that was the basis for his original sex-offense conviction. See 18 U.S.C. § 3553(a)(1). What‘s more, Defendant then repeatedly lied to his probation officer about violating the terms of his supervised release. As emphasized by the distriсt court, a serious term of supervised release was also necessary to promote respect for the law and to deter the future crimes of other defendants because not doing so would send a message that defendants can disregard the terms of their supervised releasе and then lie about it with impunity. See id. § 3553(a)(2)(A), (B).

Defendant asserts that a life term of supervised release ignores the fact that he has been a law-abiding citizen for over seven years and that he chose to violate the terms of his supervised release in order to live with and take care of his wifе‘s children. Whatever Defendant‘s motivation, it does not change the fact that having molested his then girlfriend‘s eight-year-old daughter, he was thereafter prohibited from having contact with children under the age of 18. Nor does it change the fact that Defendant‘s probation officer warned him several times not to have contact with his wife‘s minor children, and yet he continued to do so, all the while lying to the officer about his conduct.

In support of his argument, Defendant also relies on a state investigation that did not find any evidence that his wife‘s children had been sexually abused. The investigation also revealed, however, that the children had been coached on what to say. In fact, investigators eventually asked the children‘s mother to encourage the children to speak truthfully. And without getting into specifics as to what investigators learned, the investigation indicated that Defendant was involved in the children‘s lives in a way, and to a degree, that could give cause for concern.

We are also not persuaded by Defendant‘s argument that because he is already required to register as a sex offender for life, a life term of supervised release is greater than necessary to accomplish the goals of sentencing. Again, a life term of supervised release is authorized by statute. See 18 U.S.C. § 3583(k). Moreover, Defendant‘s argument also completely ignores the fact that he was on supervised release in the first place because he hаd failed to register as a sex offender. Defendant then compounded this act of disregard for the law by choosing to live with and care for four minor children, in clear and willful violation of the terms of supervised release.

Defendant points to research showing that “sex offenders, as a group, reoffend less than other criminal offenders,” as additional support for his argument that his life term of supervised release is grossly unreasonable. This research, however, does not lend credence to his argument because it does not show that Defendant is less likely to re-offend. Nor does it have any bearing on whether a life term of supervised release is reasonable in light of the facts and circumstances in this particular case.

As a final matter, we note that Defendant‘s life term of supervised release can be shortened in the future by the district court. Indeed, Defendant can petition that court for modification of the conditions of supervised release. See 18 U.S.C. § 3583(e)(2). He may also seek early ter- mination of his supervised release after he has served at least one year of the term. See id. § 3583(e)(1). The district court may shorten the term of supervised release “if it is satisfied that such action is warranted by the conduct of the defendant released and the interest of justice.” Id. In fact, the district court acknowledged that if Defendant demonstrated a willingness to comply with the terms of supervised ‍​​​​‌​​‌​​​‌‌‌‌‌‌​​‌​​‌​​​‌‌‌‌‌​​​​‌​​​​‌​‌​​​​​‍release, he could petition the court in the future for modification or eаrly termination of his supervised release.

Further, a defendant is not without recourse if a district court denies a motion to terminate early (or shorten) supervised release because a defendant may appeal the district court‘s denial of such a motion. See (entertaining, under an abuse of discretion standard, an appeal of the district court‘s denial of an offender‘s motion to shorten his term of supervised release); (the same); (the same).

Thus, given the totality of the circumstances in this case, considered in light of the § 3553(a) factors, we are not “left with a definite and firm conviction” that Defеndant‘s life term of supervised release lies outside the range of reasonable sentences. See . In short, Defendant has failed to demonstrate that the district court abused its discretion when it imposed a life term of supervised release.

For the foregoing reasons, Defendant‘s sentence is AFFIRMED.

Bobby A. RALEIGH, Petitioner-Appellant, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Attorney General, State of Florida, Respondents-Appellees.

No. 14-14198

United States Court of Appeals, Eleventh Circuit.

(June 30, 2016)

Notes

1
To the extent Defendant also attempts to challenge the severity of the sex offender laws and the restrictions placed upon him for being a sex offender, this argument is not properly before this Court.
2
The § 3553(a) factors include: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (3) the need for deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed education or vocational training or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwarranted sentencing disparities; and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a).
3
Although not mentioned by the parties, at the time of Defendant‘s original sentencing for the failure to register offense, the Guidelines recommended the statutory ‍​​​​‌​​‌​​​‌‌‌‌‌‌​​‌​​‌​​​‌‌‌‌‌​​​​‌​​​​‌​‌​​​​​‍maximum term of supervised release for a “sex offense,” but were ambiguous as to whether failure to register qualified as a sex offense. See U.S.S.G. § 5D1.2(b) & comment. (n.1) (2010). Since then, the Guidelines have been amended and now explicitly state that failure to register is not a sex offense under U.S.S.G. § 5D1.2(b). See id. § 5D1.2(b) & comment. (n.1) (2014); U.S.S.G. App. C, Amend. 786 (2014). As such, the Guidelines’ advisory supervised release range for failure to register is now five years. See 18 U.S.C. § 3583(k); U.S.S.G. § 5D1.2(a), (c) & comment. (n.6) (2014).
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