United States v. Tilley ( 2024 )

United States Court of Appeals
For the First Circuit
No. 23-1494
UNITED STATES OF AMERICA,
Appellee,
v.
RONALD TILLEY,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Lance E. Walker, U.S. District Judge]
Before
Barron, Chief Judge,
Selya and Gelpí, Circuit Judges.
Lawrence D. Gerzog on brief for appellant.
Darcie N. McElwee, United States Attorney, and Benjamin M.
Block, Assistant United States Attorney, on brief for appellee.
June 26, 2024
SELYA, Circuit Judge. Defendant-appellant Ronald Tilley
challenges an order of the district court granting the government's
petition to modify his conditions of supervised release.
Concluding that his modified conditions are reasonable and that no
other error appears, we affirm.
I
We briefly rehearse the relevant facts and travel of the
case. "Where, as here, a sentencing appeal follows a guilty plea,
we glean the relevant facts from the change-of-plea colloquy, the
unchallenged portions of the presentence investigation report (PSI
Report), and the record of the disposition hearing." United States
v. Vargas, 560 F.3d 45, 47 (1st Cir. 2009).
In March of 2019, the appellant robbed a credit union in
Bangor, Maine. He was shortly apprehended and pleaded guilty to
bank robbery under 18 U.S.C. § 2113(a). His PSI Report identified
two prior convictions that involved potential sexual misconduct
and, consequently, suggested the imposition of special conditions
of supervised release requiring the appellant to "participate in
sex-offender treatment as directed by the supervising officer."
The first prior conviction — in 2005 — was for aggravated assault,
assault and terrorizing and involved an incident in which the
appellant's wife at the time accused him of choking and sexually
assaulting her. The second prior conviction — in 2008 — was for
violating a protective order and involved text messages of a sexual
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nature allegedly exchanged between the appellant and his underage
niece.
Inasmuch as the appellant objected to the sex-offender
treatment conditions, the parties reached a compromise requiring
the appellant to undergo an assessment to determine whether
sex-offender treatment was necessary. The district court
provisionally sentenced the appellant to fifty-two months in
prison and three years of supervised release, and the appellant
commenced his term of supervised release in November of 2022.
In early 2023, the appellant completed the agreed upon
Sexual Offense Assessment and Treatment Evaluation (SOATE), which
was conducted by a licensed clinical social worker. According to
one of the instruments used to assess the appellant's risk of
sexual recidivism, he fell into the "well below average risk"
category of being charged or convicted of another sexual offense
due to the length of time that had elapsed since his last sexual
misconduct. The SOATE recommended, though, that this risk
assessment finding be interpreted "with caution" because the
sexual history polygraph administered as part of the evaluation
found the appellant's answer to the question "Since September 24,
2005, did you have physical sexual contact with a person under the
age of eighteen?" to be deceptive. When asked about his response
to this question in the post-test interview, the appellant denied
that he had physical sexual contact with his niece. His
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explanation for the deceptive response was that he was thinking of
a famous singer whom he met in 2004, when she was fifteen years
old, and had romantic thoughts about at the time. He claimed that
he kept in touch with the singer and engaged in physical sexual
contact with her after she turned eighteen.
On a different assessment of risk factors for sexual
recidivism, the appellant scored in the 87th percentile, placing
him "in the High density range of criminogenic needs." Areas
identified by this assessment as being of "significant clinical
concern" or "some noted clinical concern" included hostility
toward women and deviant sexual preference.
The SOATE diagnosed the appellant with antisocial
personality disorder and opioid use disorder, heroin, severe, in
sustained remission. Among other things, it recommended that the
appellant "have no unsupervised contact with minors" and
"participate in weekly group therapy with a treatment provider
specifically trained to intervene with sexually problematic
behavior."
Based on the SOATE report's recommendations, the
government filed a petition to add several special conditions to
the appellant's supervised release terms. These conditions would
require the appellant to participate in sex-offender treatment as
directed by his probation officer; require the appellant to submit
to periodic random polygraph examinations as directed by the
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probation officer "to assist in treatment and/or case planning
related to behaviors potentially associated with sex offense
conduct"; prohibit the appellant from associating or communicating
with minors (excluding incidental contact) except in the presence
of a responsible adult who is aware of his background and with
approval from the probation officer; prohibit the appellant from
"go[ing] to, or remain[ing] at" any place where he knows minors
are likely to be, such as a park, school, playground or childcare
facility; and authorize the probation office to notify any
organization or person to whom it determined the appellant to pose
a risk.
The district court held a hearing on the government's
petition on May 25, 2023. At this hearing, the appellant objected
to the conditions proposed by the government's petition. He argued
that the conditions were not supported by his 2005 conviction for
assaulting his wife because he was never convicted of any sexual
offense against his wife and that the relevance of both the 2005
and 2008 convictions was significantly mitigated by the amount of
time (more than fifteen years) that had elapsed with no sexual
misconduct incidents in the interim. The appellant also asked the
court to consider his age and medical condition — at the time of
the hearing, the appellant was sixty-three years old and suffered
from serious liver cirrhosis — and emphasized that the SOATE did
not diagnose him with any sexual disorders; nor was his most recent
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conviction related to sexual misconduct. Regarding his deceptive
result on the polygraph test, he argued that the result should be
given "little or no weight" because polygraph tests have "not
scientifically been proven to be reliable enough and accurate."
In June of 2023, the district court granted the
government's petition. It acknowledged that the appellant's most
recent conviction was unrelated to sexual misconduct, but
explained that "his past sexual misconduct, robust and unabated
criminal activity both distant and proximate, and the
recommendations recited in [the] SOATE report all comfortably lead
to the ineluctable conclusion that the proposed modifications
promote the goals of supervised release." It also found that the
conditions restricting the appellant's association with minors
were "proportionate and reasonably related to the goals of
supervised release and . . . [his] history and characteristics"
based on the SOATE's recommendations.
This timely appeal ensued.
II
The appellant's sole challenge to the modified
conditions is that the district court relied on "clearly erroneous
facts" in imposing them. Because the objections were interposed
to the challenges below, our review is for abuse of discretion.
See United States v. Mercado, 777 F.3d 532, 537 (1st Cir. 2015);
see also United States v. Smith, 436 F.3d 307, 310 (1st Cir. 2006).
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A district court may impose any condition of supervised
release that is reasonably related to at least one of "(1) the
defendant's offense, history, and characteristics; (2) the need to
deter the defendant from further criminal conduct; (3) the need to
protect the public from further crimes by the defendant; and (4)
the effective educational, vocational, medical, or other
correctional treatment of the defendant." United States v. York,
357 F.3d 14, 20 (1st Cir. 2004); see United States v. Prochner,
417 F.3d 54, 63 (1st Cir. 2005). Conditions of supervised release
should "cause no greater deprivation of liberty than is reasonably
necessary to achieve the goals of supervised release." United
States v. Del Valle-Cruz, 785 F.3d 48, 58 (1st Cir. 2015) (quoting
United States v. Perazza-Mercado, 553 F.3d 65, 69 (1st Cir. 2009)
(internal quotation marks and citations omitted)). Although the
sentencing court must provide a reasonable explanation of the
conditions, the court's reasoning may also be inferred from the
record. United States v. Garcia, 872 F.3d 52, 54-55 (1st Cir.
2017). A "court's decision to impose [a] condition must have
adequate evidentiary support in the record," Prochner, 417 F.3d at
63, although "the fact that a condition of supervised release is
not directly related to [the defendant's] crime of conviction does
not render that condition per se invalid." York, 357 F.3d at 20;
see Prochner, 417 F.3d at 63.
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We usually will not disturb the district court's factual
findings at sentencing in the absence of clear error. See United
States v. Occhiuto, 784 F.3d 862, 868 (1st Cir. 2015). "Clear
error will be found only when, upon whole-record review, a
reviewing court 'form[s] a strong, unyielding belief that a mistake
has been made.'" Id. (alteration in original) (quoting United
States v. Cintrón-Echautegui, 604 F.3d 1, 6 (1st Cir. 2010)).
We find no clear error here. One of the appellant's
primary claims of error is that the district court decision
inaccurately referred to the appellant's previous "sex-based
offenses" even though the appellant has never been convicted of a
sex offense. For the appellant to have been convicted of a "sex-
based offense," though, is not essential for his sex-offender
treatment conditions to be reasonable.1 We have, for example,
upheld supervised release conditions requiring a defendant to
undergo sex-offender treatment if directed to do so by the
probation office and court even though he had never been convicted
of a sex offense. See Prochner, 417 F.3d at 58, 63-64. In
Prochner, we found the imposition of a sex-offender treatment
condition reasonable because evidence in the record — including
1 By "sex-offender treatment conditions," we refer to the
conditions requiring the appellant to "participate in sex-offender
treatment as directed by the supervising officer" and to submit to
periodic random polygraph examinations to assist in treatment or
case planning "related to behaviors potentially associated with
sex offense conduct."
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journal entries by the defendant and an evaluation by a clinical
social worker — indicated that the defendant "ha[d] a potential
problem with adolescent males." Id. at 64. Although Prochner —
unlike this case — affirmed the challenged conditions on plain
error review, its reasoning applies foursquare as the relevant
analysis in Prochner focused on whether the district court "could
reasonably believe that [the defendant] might pose a threat to
children" and that participation in sex-offender treatment, "if
further ordered, was reasonably related to the purposes of
supervised release." Id.So, too, there is "adequate evidentiary support in the
record" for the sex-offender treatment conditions imposed in the
case at hand. York, 357 F.3d at 20. Even putting to one side his
ex-wife's disputed rape allegations from 2005, the undisputed
facts in the record show that in 2008, the appellant was convicted
of violating a protective order involving his underage niece, and
his phone was discovered to contain sexually-charged text
exchanges with her. Moreover, in 2023, a licensed social worker
identified deviant sexual preference as an area of clinical concern
for the appellant and concluded that he would benefit from "therapy
with a treatment provider specifically trained to intervene with
sexually problematic behavior." As in Prochner, these facts show
that the appellant's sex-offender treatment conditions are
reasonably related to the permissible goals of protecting the
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public from future potential crimes by the appellant and providing
him with necessary treatment. See 417 F.3d at 64.
The appellant insists that the district court erred in
interpreting the text messages between him and his niece as an
instance of sexual misconduct because "[t]here was no indication
in the record that the protection order had anything to do with
sexually explicit messages" and the appellant "explained that the
messages on the phone were not his." We discern no clear error.
To begin, the origin of the protection order that the
appellant allegedly violated is irrelevant to whether the
appellant behaved in a sexually inappropriate manner toward his
niece. Nor is the district court obliged to discredit evidence of
the appellant's inappropriate conduct simply because he denied
that conduct. Although the appellant objected below to the portion
of his PSI Report that mentioned the "sexual nature" of the texts
to his niece, the only basis for this objection was that he was
sharing a phone with his niece's boyfriend at the time. This
uncorroborated claim by the appellant is not enough for us to
"form[] a strong, unyielding belief" that the district court made
a mistake by relying on this portion of the PSI Report. Occhiuto,
784 F.3d at 868 (internal quotation omitted).
So, too, the district court did not err by stating that
the SOATE "identified risks presented to the community by the
[appellant] having unsupervised contact with minors." There is
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nothing inaccurate about the district court's characterization of
the SOATE: the evaluation explicitly recommended that the
appellant "have no unsupervised contact with minors" and explained
that its risk assessment was influenced by the appellant's
deceptive answer to the polygraph question he was asked about
whether he had engaged in any physical sexual contact with a minor
since 2005. Although the appellant argues that the deceptive
polygraph result was unreliable, he has not provided any evidence
to substantiate this claim. Based on the SOATE findings and
recommendations, combined with the appellant's history of
inappropriately texting his underage niece, it was not clear error
for the district court to find that the appellant would pose a
risk to the community if allowed unsupervised contact with minors.
Finally, the appellant argues that the district court
erred by characterizing his criminal history as
"significant . . . from the time of the sexual misconduct to
date," when in fact his criminal history was unexceptionable "after
2008 until the instant offense."2 In drawing this conclusion, the
district court relied on the appellant's PSI Report which
2The appellant also alleges that the district court
misdescribed the SOATE as covering his conduct from 2003 to the
present, when in fact it only covered his conduct from 2005 onward.
He does not explain, however, why this discrepancy should have
made any difference to the district court's analysis. This alleged
error appears to be nothing more than a lapsus linguae, which is
not a basis for vacating a reasoned decision. See Fed. Refinance
Co. v. Klock, 352 F.3d 16, 28 (1st Cir. 2003).
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recounted, in addition to the appellant's 2005 conviction
concerning an alleged sexual assault, a 2008 conviction involving
sending sexual messages to his minor niece, a 2008 conviction for
escape, and the 2019 conviction for robbery. Given these
convictions, we find no error in the district court's description
of the appellant's criminal history as "significant."
In sum, the district court's decision was not based on
any factual error, and the modified conditions it imposed were
supported by the record and reasonably related to one or more of
the permissible goals of supervised release. See York, 357 F.3d
at 20. Accordingly, the district court did not abuse its
discretion in imposing these conditions.
III
We need go no further. For the reasons elucidated above,
the district court's order modifying the appellant's supervised
release conditions is
Affirmed.
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