United States v. Emil Rath ( 2015 )

Case: 14-30912 Document: 00513071509 Page: 1 Date Filed: 06/09/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-30912
United States Court of Appeals
Fifth Circuit
FILED
UNITED STATES OF AMERICA, June 9, 2015
Lyle W. Cayce
Plaintiff – Appellee Clerk
v.
EMIL ROLAND RATH,
Defendant – Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:13-CR-204-1
Before HIGGINBOTHAM, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
In this case we review the imposition of conditions of supervised release
prohibiting the defendant from accessing “any computer that is capable of
internet access” and requiring him to “consent to [the] installation of
monitoring software on any computer to which [he] has access.” Concluding
that the district court neither plainly erred nor abused its discretion in
imposing these conditions, we AFFIRM.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 14-30912
I.
Emil Rath pled guilty in 2014 to abusive sexual contact with a minor who
has not attained the age of twelve years in violation of 18 U.S.C. § 2244(a)(1)
and (c). The stipulated factual basis for Rath’s guilty plea provided as follows. 1
Rath became acquainted with the victim and her family while stationed with
the United States Army at the Fort Polk Military Reservation in Louisiana.
On the night of the offense underlying Rath’s instant conviction, which
occurred in late 2002 or early 2003, Rath was sitting on a couch beside the
victim in the living room of her family’s residence while watching a movie. The
victim was seven or eight years old. Rath was twenty-seven years old. Rath
placed his hand on the victim’s breast and then placed his hand between her
legs on her inner thigh. He also undid his pants and asked the victim to touch
his penis.
The pre-sentence investigation report (PSR) indicated that Rath has
multiple prior convictions for sexual offenses involving minor victims. 2 In 1996,
Rath pled guilty in Arkansas state court to two counts of first-degree sexual
abuse and was sentenced to sixty months’ probation. 3 In 2006, Rath was
convicted in Arkansas state court of fourth-degree sexual assault and
sentenced to seventy-two months’ imprisonment. 4
According to the PSR, Rath’s 2006 conviction stemmed from allegations
that in August 2005 he engaged in sexual intercourse with a fourteen-year-old
girl in Mena, Arkansas. 5 Rath was thirty years old. Rath had met the victim
about one year prior and cultivated a relationship by communicating with her
“by phone, email, and instant messaging via computer for some time . . . [He]
1 R.130-31.
2 R.150.
3 This conviction was subsequently sealed by the state court. R.83-84.
4 R.150.
5 R.150-51.
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developed a code for them to use so no one else would know what they were
talking about.” 6 Beginning in July 2005, the victim began sneaking out of her
house late at night to meet Rath alone in the backyard while her mother was
sleeping. The victim reported to investigators that although at the second such
meeting she told Rath that she did not want to have sex with him, at a later
meeting she told him that she did want to have sex. She stated that at this
later meeting Rath proceeded to remove her clothes and pull her underwear to
one side before inserting his penis into her vagina. The PSR indicated that
after initially denying these allegations Rath admitted that he had sexual
intercourse with the victim on one occasion.
Based on a total offense level of 31 and a criminal history category of V,
and relying on the United States Sentencing Guidelines (the “Guidelines”), the
PSR indicated a guideline imprisonment range of 168 months to 210 months. 7
Rath does not challenge these calculations on appeal. 8 At sentencing, the
district court indicated that, in addition to the Guidelines and the sentencing
factors contained in 18 U.S.C. § 3553, it was taking into account “the number
of people we know were abused by [Rath]. Those are just the ones we know
about, and that’s at least four at my last count.” 9 The court sentenced Rath to
a within-guideline-range sentence of 210 months’ imprisonment followed by a
five-year term of supervised release. 10
Among other special conditions of supervision, the court imposed the
following two conditions related to internet access:
5. You are to refrain from any access to any computer that is
capable of internet access.
6 R.150.
7 R.155, 165.
8 See Appellant’s Brief at 3.
9 R.115-16.
10 R.97, 116.
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6. You are to comply with the requirements of the computer
monitoring program as administered by the probation officer and
consent to installation of all monitoring software on any computer
to which the defendant has access; and this will be further
explained to you by your probation officer. 11
Counsel for Rath objected to the conditions concerning internet access and
computer monitoring on the basis that the instant offense “did not involve
anything involving a computer.” 12 The court overruled counsel’s objection. It
then recited the following bases in its written statement of additional reasons
justifying Rath’s sentence: “This defendant has two other convictions for sexual
crimes involving contact with underage females. The defendant continues to
rationalize his behavior, never fully accepting responsibility for his actions.” 13
Rath timely appealed. 14
II.
We normally review conditions of supervised release “under a deferential
abuse of discretion standard.” 15 In this case, although Rath objected below to
the substantive reasonableness of the conditions he now challenges, he did not
articulate an objection on procedural grounds. Where a defendant fails to
preserve a procedural objection, including a claim “that the district court did
not properly explain the sentence,” we review only for plain error. 16
III.
“Although a district court generally has extensive discretion in imposing
conditions of supervised release, its discretion is limited by 18 U.S.C. § 3583(d),
which provides that the district court may impose conditions of supervised
11 R.117-18; see R.99.
12 R.119.
13 R.168.
14 R.102.
15 United States v. Rodriguez, 558 F.3d 408, 412 (5th Cir. 2009).
16 United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009).
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release that are reasonably related to the factors [set forth] in 18 U.S.C. §
[3553(a)(1), (2)(B)-(D)].” 17 Section 3553(a), in relevant part, requires the
district court to consider:
(1) “the nature and circumstances of the offense and the history
and characteristics of the defendant;”
(2) “the need . . . to afford adequate deterrence to criminal conduct;”
(3) “the need . . . to protect the public from further crimes of the
defendant;” and
(4) “the need . . . to provide the defendant with needed educational
or vocational training, medical care, or other correctional
treatment in the most effective manner.” 18
We have interpreted section 3583(d) to require that a condition of supervised
release must reasonably relate “only [to] one of the four factors, not necessarily
all of them.” 19 In addition, “the condition cannot impose any greater
deprivation of liberty than is reasonably necessary” to accomplish the purposes
set out in 18 U.S.C. § 3553(a). 20
Finally, the condition must be “consistent with any pertinent policy
statements issued by the Sentencing Commission,” 21 some of which are
implicated here. The Commission’s policy statement regarding recommended
special conditions for defendants convicted of sex offenses includes “[a]
17 United States v. Tang, 718 F.3d 476, 482 (5th Cir. 2013) (per curiam) (citing 18
U.S.C. § 3583(d)).
18 18 U.S.C. § 3553(a)(1), (2)(B)-(D); see Tang, 718 F.3d at 482.
19 Tang, 718 F.3d at 482 (citing United States v. Weatherton, 567 F.3d 149, 153 (5th
Cir. 2009)).
20 Weatherton, 567 F.3d at 153 (citing 18 U.S.C. § 3583(d)(2)) (internal quotation
marks omitted).
21 18 U.S.C. § 3583(d)(3).
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condition limiting the use of a computer or an interactive computer service in
cases in which the defendant used such items.” 22
A.
Rath challenges the internet- and computer-related conditions on two
fronts. First, he asserts that the district court procedurally erred by failing to
explain its reasons for imposing them. Second, he argues that they are
substantively unreasonable because the offense underlying Rath’s instant
conviction did not involve use of a computer or the internet. We address each
contention in turn. 23
1.
We “must first ensure that the district court committed no significant
procedural error.” 24 Rath asserts that the district court failed to explain its
reasons for imposing the special conditions in violation of section 3553(c),
which requires a sentencing court to “state in open court the reasons for its
imposition of the particular sentence.” 25 Reviewing for plain error, we may not
provide relief unless Rath can show: “(1) error, (2) that is plain, and (3) that
affects [his] substantial rights.” 26 Yet even if he meets these elements, “we
have discretion to correct the forfeited error only if it ‘seriously affects the
22 U.S.S.G. § 5D1.3(d)(7)(B).
23 Rath also argues that the challenged conditions are “irreconcilably at odds” with
one another, because one forbids him to access a computer with access to the internet while
the other requires him to install monitoring software on any computer he accesses. As an
initial matter, we reject this argument. We understand the two conditions as intended to
work in concert to ensure that Rath does not violate the prohibition on internet access; the
monitoring software thus “serves the purpose of monitoring [Rath’s] progress under
supervision.” United States v. Rearden, 349 F.3d 608, 621 (9th Cir. 2003).
24 Gall v. United States, 552 U.S. 38, 51 (2007).
25 18 U.S.C. § 3553(c).
26 United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005) (internal quotation marks
and citation omitted).
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fairness, integrity, or public reputation of judicial proceedings.’” 27 We need not
contemplate exercise of that discretion here, though, because Rath has not
demonstrated plain error affecting his substantial rights.
As an initial matter, it is not apparent that the district court failed to
comply with section 3553(c). At Rath’s sentencing hearing, the court stated
that in imposing the sentence and conditions it had considered “the factors
contained in 18 U.S.C. [section] 3553” as well as “the number of people we know
were abused by [Rath].” 28 The court reinforced this consideration in its written
statement of reasons: “This defendant has two other convictions for sexual
crimes involving contact with underage females. The defendant continues to
rationalize his behavior, never fully accepting responsibility for his actions.” 29
We have indicated that “little explanation is required” where, as here, a
sentencing judge imposes a within-guideline-range sentence “and states for the
record that she is doing so.” 30 The district court’s statements, albeit brief,
arguably support a conclusion that it justified the conditions as reasonably
related to one or more of the section 3553(a) factors.
Regardless, even assuming, without deciding, that the court plainly
erred by failing to adequately state its reasons, we have held in similar cases
that such error does not affect a defendant’s substantial rights where the
defendant “fails to show that an explanation would have changed his
sentence.” 31 “[T]he defendant must prove that the error affected the sentencing
outcome.” 32 Rath makes no attempt to explain how the district court’s
27 United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009) (citing
Mares, 402 F.3d at 520)).
28 R.116.
29 R.168.
30 See Mares, 402 F.3d at 519.
31 Mondragon-Santiago, 564 F.3d at 365 (reviewing a similar procedural challenge for
plain error); see Tang, 718 F.3d at 483.
32 Mondragon-Santiago, 564 F.3d at 365.
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compliance with section 3553(c) would have altered the special conditions it
sought to impose. We therefore hold that the district court did not commit
reversible procedural error.
2.
“Assuming that the district court’s sentencing decision is procedurally
sound, [we next] consider the substantive reasonableness of the sentence
imposed under an abuse-of-discretion standard . . . tak[ing] into account the
totality of the circumstances.” 33 Rath first argues that the internet-related
conditions are not reasonably related to any of the section 3553(a) factors
because the offense underlying his instant conviction did not involve use of a
computer or the internet. He cites United States v. Tang, 34 where we held that
similar conditions were not related to the statutory factors because “[t]here
[was] no evidence that [the defendant had] ever used the [i]nternet to commit
an offense of any sort.” 35
Tang is inapposite here. By contrast to the facts of that case, although
the offense underlying Rath’s instant conviction did not involve a computer, he
indisputably used internet access—specifically, email and instant messaging—
to groom a subsequent victim over an extended period of time in developing a
relationship that culminated in illegal sexual intercourse. Rath urges that this
distinction is of no import because internet use was not “integral” to his
commission of that offense. We disagree. The record demonstrates that access
to the internet played a significant role in Rath’s long-term cultivation of a
relationship with that victim. We therefore conclude that the conditions
concerning internet access are reasonably related to one or more of the section
33 Gall, 552 U.S. at 51. This includes our review of challenged conditions of supervised
release. United States v. Paul, 274 F.3d 155, 165 (5th Cir. 2001).
34 718 F.3d 476 (5th Cir. 2013) (per curiam).
35 Id. at 483 (emphasis added).
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3553(a) factors, specifically: (1) “the history and characteristics of the
defendant;” (2) “adequate deterrence;” (3) “protect[ing] the public from further
crimes;” and (4) “provid[ing] the defendant with needed . . . correctional
treatment in the most effective manner.” 36
Rath next asserts that the challenged conditions are not consistent with
the Sentencing Commission’s recommendation of “[a] condition limiting the
use of a computer or an interactive computer service in cases in which the
defendant used such items” 37 because there is no indication that he used a
computer in the instant case. Again we disagree. The challenged conditions,
while not expressly recommended in the Commission’s policy statements, are
in no way inconsistent with those statements. “A district court has discretion
to craft conditions of supervised release, even if the Guidelines do not
recommend those conditions.” 38
Finally, Rath argues that the challenged conditions constitute a greater
deprivation of his liberty than is reasonably necessary. He asserts that a total
ban on internet access with no provision of discretion for a probation officer to
make exceptions will disadvantage him at school and work and will hamper
his transition back into society. Again we disagree. The challenged conditions
are neither overbroad nor unduly restrictive. 39 First, as we understand the
conditions, Rath may use a computer for school and work as long as that
computer is not capable of internet access. Second, although the conditions do
not permit Rath’s probation officer to make discretionary exceptions, Rath “has
prompt access to modification of [these] conditions pursuant to [section]
36 18 U.S.C. § 3553(a)(1), (2)(B)-(D).
37 U.S.S.G. § 5D1.3(d)(7)(B) (emphasis added).
38 United States v. Windless, 719 F.3d 415, 421 (5th Cir. 2013) (citation omitted).
39 See Paul, 274 F.3d at 167-70 (upholding a similar “strict ban on computer and
internet use”).
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3583(e) and Federal Rule of Criminal Procedure 32.1(c),” 40 should modification
become necessary and appropriate. 41 Third, Rath’s term of supervised release
is only five years. 42 This despite the Sentencing Commission’s recommendation
of a lifelong term of supervised release for sex offenses. 43 Along with several of
our sister circuits, we have considered terms more limited in duration to weigh
in favor of affirmance. 44 In addition to these reasons, Rath “has offered nothing
more than raw speculation and conclusional statements to support his claim” 45
that the conditions will hamper his transition back into society.
In light of Rath’s criminal history, which spans several convictions for
sexual offenses involving minor victims, including at least one in which he used
the internet to lure the victim before perpetrating the offense, we hold that the
district court did not abuse its discretion in imposing the conditions prohibiting
Rath from accessing the internet and requiring him to comply with a computer
monitoring program during his five-year term of supervised release.
IV.
We AFFIRM the district court’s imposition of special conditions related
to internet access and computer monitoring.
40 United States v. Lyons, 482 F. App’x 891, 893 n.3 (5th Cir. 2012) (per curiam); see
also United States v. Hilliker, 469 F. App’x 386, 389 (5th Cir. 2012) (per curiam) (noting that
section 3583(e) and Federal Rule of Criminal Procedure 32.1(c) “contemplate ongoing judicial
review, termination, or modification of stringent supervised realize [sic] terms which is apt
for terms that extend far into the future yet necessarily must adjust as technology changes”).
41 See United States v. Sealed Juvenile, 781 F.3d 747, 758 (5th Cir. 2015).
42 R.98.
43 U.S.S.G. § 5D1.2(b)(2) (Policy Statement).
44 See United States v. Miller, 665 F.3d 114, 131 & n.83 (5th Cir. 2011) (citing cases
from the Third and District of Columbia Circuits).
45 United States v. Emerson, 231 F. App’x 349, 355 (5th Cir. 2007).
10