United States v. Justin Richard Ulbrik , 625 F. App'x 446 ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-15538
Non-Argument Calendar
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D.C. Docket No. 6:14-cr-00139-RBD-KRS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUSTIN RICHARD ULBRIK,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(August 28, 2015)
Before MARCUS, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Justin Richard Ulbrik plead guilty to one count of possession of child
pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B), and two counts of receipt
of child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(B). On appeal, he
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argues that: (1) the district court erred by imposing certain conditions of supervised
release restricting Ulbrik’s ability to incur new credit charges and requiring him to
release financial information to his probation officer, due to the court’s incorrect
belief that the conditions were standard conditions of supervised release for sex
offenders; and (2) in the alternative, the conditions were substantively
unreasonable. After careful review, we vacate and remand.
Where an issue is not properly preserved for appeal, the district court’s
decision is reviewed only for plain error. United States v. Hunerlach, 197 F.3d
1059, 1068 (11th Cir. 1999). “The plain error standard applies even where the
defendant objects on one ground [before the district court] and then argues on
appeal that the objection should have been sustained on other grounds.” United
States v. Graziano, 710 F.2d 691, 697 (11th Cir. 1983). Under plain error review,
the defendant must demonstrate that (1) an error occurred, (2) the error was plain,
and (3) the error affected his or her substantial rights. United States v. Rodriguez,
398 F.3d 1291, 1298 (11th Cir. 2005). If those conditions are met, we may choose
to exercise our discretion to correct the forfeited error only if the error seriously
affects the fairness, integrity, or reputation of judicial proceedings. Id. For an
error to be plain there must be some controlling authority -- such as a statute,
Supreme Court decision, or a decision of this Court -- that squarely supports the
defendant’s argument. See United States v. Dortch, 696 F.3d 1104, 1112 (11th Cir.
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2012) (holding that, to be plain, an error must be “clear under current law”). To
show that the error affected his substantial rights, a defendant must show a
“reasonable probability that the result would have been different but for the error.”
United States v. Heath, 419 F.3d 1312, 1316 (11th Cir. 2005) (quotation omitted)
(holding that the imposition of an improper condition of supervised release
affected the defendant’s substantial rights).
The standard conditions of supervised release are set forth in U.S.S.G. §
5D1.3(c). Although some of the conditions deal with a defendant’s economic
circumstances, none of the conditions restrict a defendant’s ability to take on new
debt or require the disclosure of financial information to the probation officer. See
U.S.S.G. § 5D1.3(c). Rather, the conditions of supervised release concerning
Ulbrik’s finances appear to be based on two “special” conditions of supervised
release that are recommended for cases where the court imposed a fine, an order of
restitution, or in circumstances where they “may otherwise be appropriate.” See
id. § 5D1.3(d)(2) (prohibiting “the defendant from incurring new credit charges or
opening additional lines of credit without approval of the probation officer”) and §
5D1.3(d)(3) (requiring “the defendant to provide the probation officer access to
any requested financial information”). A court may impose a special condition of
supervised release, so long as the condition is reasonably related to such factors as
the nature and circumstances of the offense and the history and characteristics of
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the defendant, and the condition does not create greater deprivation of liberty than
is reasonably necessary to protect the public from further crimes of the defendant
and to provide the defendant with correctional treatment in the most effective
manner. U.S.S.G. § 5D1.3(b).
In this case, although Ulbrik objected to the conditions at his sentencing
hearing, he “argues on appeal that the objection should have been sustained on
other grounds,” and thus plain error review applies to his argument that the court
erred in its belief that the conditions were standard. See Graziano, 710 F.2d at 697.
But even under the plain error standard of review, we must vacate and remand, as
we explain below.
For starters, the record flatly contradicts the government’s argument that the
district court did not believe the conditions were standard. When defense counsel
objected to the conditions in question -- restricting Ulbrik’s ability to incur new
credit charges and requiring him to release financial information to his probation
officer -- the court asked the probation officer about the reason for the financial
conditions. The probation officer responded, “Those are normally imposed in sex
offender cases. And I can see it being appropriate that we would be aware if he is
trying to obtain any type of credit or anything. I think [they are] standard
condition[s].” The district court then noted that “[i]f it is a standard condition, I
can see where the probation office might have some need to be apprised of major
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purchases, you know, to the extent that it might include some sort of technology
equipment or computers or things of that sort.” The court went on: “I don’t know.
I confess I’ve not given the matter a great deal of thought until you just raised it.”
Ulbrik again objected to the conditions, offering that the probation officer could
monitor by other means Ulbrik’s use of technology that could access the internet.
The district court again overruled Ulbrik’s objection and concluded, “I am going to
continue to impose the standard conditions, and that’s one of them.”
It appears, from this somewhat ambiguous record, that the district court
erroneously assumed that the financial conditions imposed were standard
conditions of probation, rather than special conditions. While the judgment, issued
two days after the sentencing hearing, listed the financial conditions in question
under “Additional Conditions of Supervised Release” instead of “Standard
Conditions,” the entire colloquy from the sentencing hearing suggests that the
court believed otherwise. Among other things, the probation officer asserted at the
hearing that the financial conditions were standard conditions, and no one disputed
the probation officer’s assessment. Then, the court agreed with the probation
officer’s rationale for the financial conditions being standard ones. Further, the
court concluded by saying that it would “impose the standard conditions,” and that
the financial conditions were included in those. Thus, the record indicates that the
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district court believed the financial conditions it was imposing were standard
conditions when it fashioned Ulbrik’s sentence.
Because the record indicates that the district court believed that these
financial conditions were standard ones, we are compelled to conclude that its error
in doing so was plain. Under the clear language of the Sentencing Guidelines,
these financial conditions are not standard ones. Compare U.S.S.G. § 5D1.3(c),
with id. § 5D1.3(d)(2), (3). It is true that a court may impose a special condition of
supervised release, so long as the condition is reasonably related to such factors as
the nature and circumstances of the offense and the history and characteristics of
the defendant, and the condition does not create greater deprivation of liberty than
is reasonably necessary to protect the public from further crimes of the defendant
and to provide the defendant with correctional treatment in the most effective
manner. U.S.S.G. § 5D1.3(b). However, there is nothing in this record suggesting
that the district court considered whether these special conditions were appropriate
to the defendant’s circumstances; rather, the record reveals that the district court’s
decision to impose the conditions was based on its belief that the conditions were
standard. Thus, the district court’s decision to impose the conditions as standard
was in clear contradiction to the Guidelines, and moreover, Ulbrik has shown a
“reasonable probability that the result would have been different but for the error.”
See Heath, 419 F.3d at 1316. The error in this case also seriously affected the
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fairness of the judicial proceeding because the court’s reasoning for imposing the
conditions was based on a clear error of fact. See Rodriguez, 398 F.3d at 1298.
Accordingly, we vacate Ulbrik’s sentence as to the conditions of supervised
release that he challenges on appeal and remand the case for the purpose of
allowing the district court to consider whether such special conditions are
appropriate under the circumstances of this case. See U.S.S.G. § 5D1.3(b), (d). At
this stage, we need not reach the question of whether the conditions would be
substantively unreasonable.
VACATED AND REMANDED.
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