United States v. Tinney ( 2021 )

Case: 20-10849 Document: 00515918879 Page: 1 Date Filed: 06/29/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
June 29, 2021
No. 20-10849 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Larry J. Tinney,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:16-CR-204-1
Before Davis, Duncan, and Oldham, Circuit Judges.
Per Curiam:
Larry J. Tinney is a serial sexual predator of children and people with
disabilities. He violated the conditions of his supervised release, so the
district court gave him an 18-month revocation sentence and another five
years of supervised release. On appeal, he challenges the sentence and the
supervised-release conditions. We affirm.
I.
Larry J. Tinney is a recidivist sex offender. Among his prior
convictions are two for sexually assaulting two 13-year-old children and one
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for aggravated sexual assault of a developmentally disabled 15-year-old.
Those convictions make Tinney subject to the registration requirements in
the Sex Offender Registration and Notification Act (“SORNA”).
Tinney last registered as a sex offender in Springfield, Illinois, in June
2014. He moved in October 2014 but failed to update his address within the
grace period, thus violating SORNA. See 18 U.S.C. § 2250(a). In July 2016,
the United States Marshals Service found Tinney in a motel in Fort Worth,
Texas. Tinney admitted that he obtained a Texas driver’s license in March
2015 and had been in the State of Texas for over a year when he was arrested.
Tinney then pled guilty to violating SORNA. The pre-sentence report
(“PSR”) assigned Tinney a criminal history category of III and an offense
level of 13, yielding a Guidelines range of 18 to 24 months’ imprisonment.
Because Tinney’s “history of arrests, convictions, and lengthy sentences
ha[d] not deterred [him] from engaging in criminal conduct,” the PSR
recommended an upward departure. The district court agreed. The court
sentenced Tinney to 48 months’ imprisonment and a five-year term of
supervised release. As part of his supervised release, Tinney was directed to
“answer truthfully all inquiries by the U.S. Probation Officer and follow [his]
instructions.”
After serving his custodial sentence, Tinney was released to a
residential nursing and rehabilitation center. Almost immediately after
arriving there, Tinney preyed on a younger patient with end-stage renal
disease who was “incapable of consenting to any type of relationship.”
Tinney also did not meaningfully participate in sex offender rehabilitation
treatment—he “refus[ed] to answer questions, passively resist[ed] by stating
the questions were ‘stupid[,]’ and ignor[ed] the counselor at times.” And
during a polygraph examination, Tinney attempted to deceive examiners
about his prior offenses. The Probation Office therefore petitioned to revoke
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Tinney’s supervised release. Tinney eventually admitted the factual
allegations in the revocation petition.
The Probation Office classified Tinney’s supervised-release violation
as Grade C. See U.S.S.G. § 7B1.1(a)(3). It further assigned Tinney a criminal
history category of III, which yielded a revocation-sentence range of 5–11
months. See id. § 7B1.4(a). The petition further noted that the commentary
to § 7B1.4 provided that, “in the case of a Grade C violation that is associated
with a high risk of new felonious conduct, an upward departure may be
warranted.” And it noted that the statutory maximum was 24 months.
At the revocation hearing, Tinney requested a revocation sentence at
the low end of Guidelines range. In response, the district court stated:
I do question whether a nursing home facility is the appropriate
place for Mr. Tinney, given his Category VI criminal history,
criminal history going back to 1968, that’s the Lyndon Johnson
administration, 52 years ago.
I do question the wisdom of having him in a nursing home, but
that’s not my decision, that’s another government agency.
Then after listening to Tinney’s allocution, the district court
sentenced Tinney to 18 months in prison. The district court explained its
upward variance in part by stating:
It’s my determination that Larry J. Tinney . . . be committed to
[prison] for a period of 18 months. That does represent an
upward variance from the guidelines found in Chapter 7, which
are five through 11 months. However, the Court feels that a
period of 18 months is still necessary and appropriate in this
case when I consider the facts of this case and the facts of these
violations that I previously found.
It’s my position that a period of 18 months will sufficiently
address Mr. Tinney’s continuing high-risk conduct with a
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cognitively-impaired female patient at [the nursing and
rehabilitation center] and his disregard for the orders of the
Court to engage in progress in sex offender treatment to reduce
his risk of re-offense. As borne out in his original [PSR], Mr.
Tinney has an extensive criminal history, indeed a history
going back 52 years. He has also a prior criminal history score of
a VI. His criminal history includes two prior convictions for
sexual offenses and a prior sexual offense which was
unprosecuted.
Taking into account the vulnerability of the victims in these
cases, his prior failure to register on more than one occasion,
his violent history towards women and the inference that the
sentence imposed in the prior convictions in the instant offense
did not sufficiently deter his conduct, I believe that an upward
variance from [the] Chapter 7 guidelines and an 18-month
sentence will protect the community from future crimes of this
defendant, allowing for both reimposition of a term of
supervised release and additional custody.
I have every belief, Mr. Tinney, you’ll continue to engage in
noncompliant, high-risk behaviors, in that you’ve spent . . . at
least the last 50 years doing so.
The district court also imposed another five-year term of supervised
release. Attendant to that term, the court reimposed Tinney’s supervised-
release conditions and added some new ones. One of the previously imposed
(and reimposed) conditions for supervised release stated: “The defendant
shall answer truthfully all inquiries by the U.S. Probation Officer and follow
the instructions of the U.S. Probation Officer.” Tinney objected to none of
this.
II.
Tinney now seeks to challenge his sentence as procedurally erroneous
and the “follow instructions” supervised-release condition as unlawful. As
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Tinney concedes, his arguments were not preserved below, so we review
them only for plain error. Puckett v. United States, 556 U.S. 129, 135 (2009);
Fed. R. Crim. P. 52(b).
To establish plain error, Tinney must show (1) an error (2) that is
clear, rather than subject to reasonable dispute, (3) which affected the
outcome below, and which (4) “seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.” Id. (quotation omitted). Tinney
cannot make the requisite showing.
A.
Tinney first argues the district court erred in calculating his
revocation sentence. He says the district court’s reference to “his Category
VI criminal history” shows the court conflated criminal history score with
criminal history category—two distinct terms used in the Sentencing
Guidelines.
It is undisputed that Tinney’s criminal history category was three,
while his criminal history score was six. But it is unclear whether the district
court erred at all. And it is clear that any error did not prejudice Tinney.
First, it isn’t obvious the district court actually believed Tinney had a
criminal history category of six. The court’s misstatement appears to be an
offhand remark during a colloquy with defense counsel regarding whether
Tinney could safely return to a nursing home. In the portion of the sentencing
hearing where the district court actually explained its upward variance, it
correctly stated that Tinney’s criminal history score was six. Moreover, we
know the district court relied on the correct criminal history category because
it noted the correct Guidelines range (5–11 months) for offenders who fall in
category III, not IV. See U.S.S.G. § 7B1.4(a).
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Given that the district court correctly stated the facts in its sentencing
pronouncement and recognized the correct Guidelines range, Tinney can
show no more than the district court made a one-word misstatement.
Although such a misstatement might be an error in the colloquial sense, it is
not a cognizable error in the legal sense. Cf. United States v. Izydore, 167 F.3d
213, 222 (5th Cir. 1999) (explaining that a “single misstatement” does not
enter “the realm of clear error”); Error, Black’s Law Dictionary
(11th ed. 2019) (“[A] belief that what is false is true or that what is true is
false.”). Indeed, it would be a perverse result if a defendant could lie behind
the log during a hearing, say nothing about a district court’s one-word, later-
corrected misstatement during a background portion of the proceeding, then
win relief on appeal without any evidence to distinguish between a potential
error and a solecism.
Second, and in all events, any error did not prejudice Tinney. The
district court started with the correct Guidelines range. Cf. Molina-Martinez
v. United States, 136 S. Ct. 1338, 1345–46 (2016) (noting that plain error can
attach where the district court relies on the incorrect Guidelines range).
Then it mentioned “the vulnerability of the victims in these cases . . . and the
inference that the sentence imposed in the prior convictions in the instant
offense did not sufficiently deter his conduct.” It further explained that “an
upward variance from Chapter 7 guidelines and an 18-month sentence will
protect the community from future crimes of this defendant.” The district
court thus gave a robust, non-erroneous explanation for its upward
departure. Given all this, the district court’s misstatement—even if error—
was not a prejudicial one. See Puckett, 556 U.S. at 135; United States v. Price,
516 F.3d 285, 289 (5th Cir. 2010) (noting a sentencing error affects a
defendant’s substantial rights when he “can show a reasonable probability
that, but for the district court’s misapplication of the Guidelines, he would
have received a lesser sentence” (quotation omitted)).
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B.
Next, Tinney argues the district court unlawfully delegated judicial
authority in directing him to “follow the instructions of the U.S. Probation
Officer.” Again, we find no plain error.
Our court has held that district courts may not require criminal
defendants to follow “lifestyle . . . restrictions or treatment requirements
imposed by [a] therapist” as a condition of supervised release. United States
v. Iverson, 874 F.3d 855, 860–61 (5th Cir. 2017); accord United States v. Huor,
852 F.3d 392, 403 (5th Cir. 2017); United States v. Morin, 832 F.3d 513, 516–
17 (5th Cir. 2016). But the cases announcing and applying that rule do not
control here. Tinney challenges the district court’s delegation of authority to
a probation officer, not to a therapist. And that distinction matters. Unlike the
unfettered authority of a private therapist, a probation officer’s authority to
“instruct” a criminal supervisee is substantially limited by statute. See 18
U.S.C. § 3603(1) (providing that a probation officer “shall . . . instruct a
probationer or a person on supervised release, who is under his supervision,
as to the conditions specified by the sentencing court” (emphasis added)); cf.
Morin, 832 F.3d at 518 (invalidating delegation to therapist because it “vests
a private therapist with the ability to impose ‘lifestyle restrictions’ that are
potentially unnecessary to the treatment process”). And unlike private
therapists, probation officers are appointed by, and serve at the pleasure of,
the district courts. 18 U.S.C. § 3602(a) (“A district court of the United States
shall appoint qualified persons to serve . . . as probation officers . . . .”); cf.
Iverson, 874 F.3d at 861 (invalidating delegation to therapist because it
“usurps a judge’s exclusive sentencing authority”).
The upshot is that our court has not extended Iverson to a case like
this. That is fatal to Tinney’s claim of plain error. See United States v. Evans,
587 F.3d 667, 671 (5th Cir. 2009) (“Even where the argument requires only
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extending authoritative precedent, the failure of the district court to do so
cannot be plain error.” (quotation omitted)).
AFFIRMED.
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