United States v. Kirk Pennington , 606 F. App'x 216 ( 2015 )

Case: 14-60182 Document: 00512992669 Page: 1 Date Filed: 04/03/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-60182
United States Court of Appeals
Fifth Circuit
FILED
UNITED STATES OF AMERICA, April 3, 2015
Lyle W. Cayce
Plaintiff - Appellee Clerk
v.
KIRK PENNINGTON,
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 3:13-CR-117-1
Before BARKSDALE, SOUTHWICK, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:*
Kirk Pennington pleaded guilty to failure to register as a sex offender
and was sentenced to a prison term of 84 months and a five-year term of
supervised release, subject to a number of conditions. Pennington now
challenges his sentence on three grounds. First, he argues that the district
court violated the Federal Rules of Criminal Procedure and the Sentencing
Guidelines when it failed to give him prior notice of the factual basis for a
condition of supervised release. Second, he claims that the same condition is
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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overly broad and impermissibly vague. Third, he argues that his 84-month
sentence, an upward variance from the Guidelines range, is procedurally and
substantively unreasonable. We affirm.
FACTS AND PROCEEDINGS
Pennington pleaded guilty to failure to register as a sex offender, in
violation of the Federal Sex Offender Registration and Notification Act. See 18
U.S.C. § 2250(a). According to the factual basis for his guilty plea, Pennington
was convicted of aggravated criminal sexual abuse in 1994 and of “fondling” in
2008. On May 15, 2013, before Pennington was released from the Mississippi
Department of Corrections, he signed a Mississippi Convicted Sex Offender’s
Duty to Register form that indicated he would be residing on County Road 2359
in New Albany, Mississippi. On June 9, 2013, Pennington was released from
the Mississippi Department of Corrections, but he failed to report to the
Mississippi Department of Public Safety to register as a sex offender. He also
did not report to the Mississippi Department of Corrections Probation and
Parole Officer. On July 12, 2013, the U.S. Marshals Service arrested
Pennington in Memphis, Tennessee. When questioned by a marshal,
Pennington stated that church members had reneged on their promise to find
him a place to live in New Albany, Mississippi. He said he then travelled to
Memphis, Tennessee, where he stayed at a hotel, at a hospital, and with
friends, before he was apprehended. He said he did not attempt to register as
a sex offender in Tennessee.
Several weeks before Pennington’s sentencing, the district court advised
the parties that the court was considering an upward variance from the
Guidelines range of 33 to 41 months, even though the government had not
moved for an upward variance. At the sentencing hearing, the district court
gave Pennington, the prosecutor, and defense counsel an opportunity to speak.
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Defense counsel emphasized that when Pennington was released from prison,
he had “no money,” “no family,” “no friends,” and “nowhere to go.” Defense
counsel also stressed that Pennington has a history of mental illness and a low
level of education. He requested a sentence within the Guidelines range. The
district court recognized Pennington’s “lack of resources,” but said an upward
variance was appropriate based on the sentencing factors listed in 18 U.S.C. §
3553(a), including, inter alia, “the nature and circumstances of the offense,”
“the history and characteristics of the defendant,” the need “to protect the
public,” and the need “to afford adequate deterrence to criminal conduct.” The
court noted Pennington’s two prior convictions for sex offenses, his seven prior
convictions for failure to register as a sex offender, and his numerous violations
of probation. The court found that Pennington’s “conduct is the kind that puts
the community at risk, especially in this case, puts the children at risk.”
The court also imposed a number of special conditions of supervised
release. One of the conditions (“condition eight”) prohibited Pennington from
“engag[ing] in a relationship or cohabit[ing] with any individual who has
children under the age of 18 unless approved by the probation officer . . . .” In
explaining its decision to impose these conditions, the court first noted that
Pennington had been convicted of aggravated criminal sexual abuse that
occurred in 1994, when Pennington was 20 years old. Given the elements of
that crime, the victim must have been between 13 and 15 years old. The court
added, “of even greater concern is the court’s understanding of the Union
County conviction” for “fondling a child,” when Pennington was 33 years old.
The court noted that
[a]ccording to the offen[s]e report in that case, Case No. 8MO-017,
the victim in that case was a six-year-old child. The circumstances
was this child being a child of the woman you were dating or
engaged in some relationship with.
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And for that reason, the court finds that these conditions are
not only merited but necessary in order to protect society,
particularly protect victims such as these children.
Pennington’s counsel objected to the reasonableness of the sentence, citing his
previous arguments for a within-Guidelines sentence, including Pennington’s
history of mental illness and homelessness. Defense counsel further argued
that the special conditions are not “reasonably related to Mr. Pennington’s
history and this offense in representing a greater deprivation of liberty than
reasonably necessary for sentencing purposes.” With respect to the 2008
conviction for fondling a child, defense counsel stated that he “was not aware
that the victim was six years of age or involved a person that Mr. Pennington
was in a relationship with.” He added, “we would object to that aspect of it
as . . . being something that we were not prepared to address and not being in
the record.” Defense counsel further objected to condition eight on the ground
that it would apply to Pennington’s own daughter if she decided to have a child.
In addition, defense counsel argued, “a person of reasonable intelligence who
has . . . common sense, minds like that could differ as to what would be a
violation” of condition eight. The district court overruled these objections,
noting that condition eight “is warranted, particularly in the circumstances of
the Union County case where we know that child was six years of age and was
the child of a girlfriend.”
DISCUSSION
I. Notice of the 2008 Offense Report
Pennington argues that Federal Rule of Criminal Procedure 32 and U.S.
Sentencing Guidelines Manual § 6A1.3 required the district court to give
defense counsel notice, before the sentencing hearing, of the 2008 offense
report on which the court relied in imposing condition eight. Because
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Pennington objected in the district court to the lack of notice, we review this
question de novo. See United States v. Knight, 76 F.3d 86, 87 (5th Cir. 1996).
Section 6A1.3(a) of the Sentencing Guidelines requires that the parties
“be given an adequate opportunity” to address “any factor important to the
sentencing determination [that] is reasonably in dispute.” U.S.S.G. § 6A1.3(a).
Federal Rule of Criminal Procedure 32(i)(1)(C) provides, “[a]t sentencing, the
court . . . must allow the parties’ attorneys to comment on the probation officer’s
determinations and other matters relating to an appropriate sentence.” Fed.
R. Crim. P. 32(i)(1)(C). We have noted that “[t]he touchstone of [R]ule 32 is
reasonable notice to allow counsel adequately to prepare a meaningful
response and engage in adversary testing at sentencing.” United States v.
Angeles-Mendoza, 407 F.3d 742, 749 n.12 (5th Cir. 2005) (internal quotation
marks and citation omitted); see also Irizarry v. United States, 553 U.S. 708,
715 (2008) (“Sound practice dictates that judges in all cases should make sure
that the information provided to the parties in advance of the hearing, and in
the hearing itself, has given them an adequate opportunity to confront and
debate the relevant issues.”). In assessing whether notice was reasonable, we
have considered “the abilities of the average defense counsel,” while keeping
in mind that “the court must have sufficient flexibility to deal with factors not
covered in the PSR or arising after its writing.” Knight, 76 F.3d at 88–89. In
addition, we have held that “actual knowledge satisfies the ‘reasonable notice’
requirement[] of Rule 32 . . . .” United States v. Coenen, 135 F.3d 938, 944 (5th
Cir. 1998), superseded on other grounds by statute as recognized by United
States v. Paul, 274 F.3d 155, 172 (5th Cir. 2001); cf. Knight, 76 F.3d at 88 (“[A]t
least if the defendant has actual knowledge of the facts on which the district
court bases an enhancement or a denial of a reduction, the Sentencing
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Guidelines themselves provide notice of the grounds relevant to the proceeding
sufficient to satisfy the requirements of Rule 32 and U.S.S.G. § 6A1.3.”).
Here, the PSR and Pennington’s own knowledge of his prior case gave
defense counsel adequate notice of the facts on which the district court relied
in imposing condition eight. The PSR stated that Pennington had been
convicted of “[f]ondling a [c]hild,” and noted that “[a]ccording to the Indictment,
between February 15, 2008, and February 16, 2008, the defendant touched and
rubbed his hands and/or other parts of his body on the vagina of A.B., a female
under the age of 14.” The PSR did not state two facts, contained in the offense
report, which the district court cited at sentencing: the exact age of the child
(six), and the fact that Pennington was “dating or engaged in some relationship
with” the child’s mother when he committed the crime. Nevertheless, the fact
that the child was six, and not another age “under . . . 14,” as stated in the
PSR, did not affect condition eight, which applies to all children under age 18.
Although condition eight was based on information, omitted from the PSR, that
the child’s mother was Pennington’s “girlfriend,” Pennington had actual
knowledge of that fact. 1 Given the expectation of communication between
lawyer and client, above all when a sentencing court informs the parties of its
intention to impose a non-heartland Guidelines sentence, Pennington’s counsel
had adequate notice to meaningfully respond to the district court’s reference
to facts in the 2008 offense report. We further note that the district court gave
defense counsel an opportunity to comment “[a]t sentencing” on the factual
basis for condition eight, Fed. R. Crim. P. 32(i)(1)(C), and that defense counsel
did not request a continuance to further prepare a response. Cf. Irizarry, 553
1 Pennington has not disputed the accuracy of this fact in the district court or on
appeal.
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U.S. at 715–16 (noting, in the context of an upward variance from the
Guidelines, that where “the factual basis for a particular sentence . . . come[s]
as a surprise to a defendant or the Government,” the “appropriate response” is
“for a district judge to consider granting a continuance when a party has a
legitimate basis for claiming that the surprise was prejudicial”).
II. Substantive Challenge to Condition Eight
We review substantive reasonableness challenges to conditions of
supervised release for abuse of discretion where, as here, the defendant
objected in the district court. United States v. Ellis, 720 F.3d 220, 224 (5th Cir.
2013). A district court may impose any condition of supervised release “it
considers to be appropriate,” as long as certain requirements are met. 18
U.S.C. § 3583(d); see also United States v. Weatherton, 567 F.3d 149, 153 (5th
Cir. 2009). A condition of supervised release “must be related to one of four
factors: (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 crime 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.” Ellis, 720 F.3d at 225 (internal quotation marks and
alterations omitted) (quoting 18 U.S.C. §§ 3583(d)(1), 3553(a)(1), (a)(2)(B)−(D)).
In addition, “the condition cannot impose any ‘greater deprivation of liberty
than is reasonably necessary’ to advance deterrence, protect the public from
the defendant, and advance the defendant’s correctional needs.” Weatherton,
567 F.3d at 153 (quoting 18 U.S.C. § 3583(d)(2)). Finally, the condition must
be consistent with the policy statements issued by the Sentencing Commission.
18 U.S.C. § 3583(d)(3). Condition eight, as stated in the judgment, provides:
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The defendant may not date, engage in a relationship or co-habitat
[sic] with an individual who has children under the age of 18 unless
approved by the probation officer and third party risk issues have
been identified and notification has been provided by the probation
officer.
Pennington challenges only the condition’s provisions on “dat[ing]” and
“engag[ing] in a relationship,” and not its provision on “co-habit[ing].” In light
of vagueness concerns, we note that the record of the sentencing hearing makes
clear that the terms “date” and “relationship” are used to convey romantic
involvement. The district court, in explaining condition eight, stated that it
“would require you to have the conversation with probation about your intent
to engage in a relationship or cohabit with a mate that had small children so
that probation could make your partner, your girlfriend aware of your history
and let that person have knowledge of propensity.” Based on this
understanding of condition eight, we now analyze Pennington’s arguments
that the condition is overly broad and impermissibly vague.
A. Overbreadth
Pennington argues that condition eight involves a greater deprivation of
liberty than is reasonably necessary to protect the public and prevent
recidivism. See 18 U.S.C. § 3583(d)(2). Pennington’s overbreadth argument
depends on a misconstruction of the condition. He argues that under condition
eight, he “would have to first get approval to write a letter to someone or if he
were to think about striking up a casual conversation with a person anywhere.”
Pennington further claims that the condition would apply to his own daughter
if she decided to have a child. Pennington overlooks that the terms “date” and
“relationship,” as imposed by this sentencing judge, involve romantic
engagement.
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Understood in the context of this record, condition eight is not overly
broad. “Congress has made clear that children . . . are members of the public it
seeks to protect by permitting a district court to impose appropriate conditions
on terms of supervised release.” United States v. Rodriguez, 558 F.3d 408, 417
(5th Cir. 2009). Pennington’s previous conviction for fondling the child of a
girlfriend points to a concern about the use of romantic relationships to reach
children. See Ellis, 720 F.3d at 226 (finding that a restriction on contact with
adults who have minor children was “related to public safety” given Ellis’s
“proclivity to use close relationships to reach children”). In addition, condition
eight is not an absolute ban, but rather a requirement to obtain permission
from the probation officer. See Tang, 718 F.3d at 487 (“The restriction on
contact with minors . . . is not a greater deprivation than reasonably necessary
as Tang can request permission to have contact with minors (or cohabitate with
someone having minor children).”). Given these factors, condition eight is not
broader than is reasonably necessary to protect the public and prevent
recidivism. Our court has previously upheld similar conditions against
overbreadth challenges. See Rodriguez, 558 F.3d at 411, 417–18 (upholding a
condition prohibiting the defendant from “associating with any child or
children under the age of eighteen, except in the presence and supervision of
an adult specifically designated in writing by the probation officer”); see also
United States v. Byrd, 551 F. App’x 726, 727 (5th Cir. 2013) (under plain error
review, upholding a condition prohibiting Byrd from “entering into a
relationship with anyone with minor children without approval from the
probation officer”); United States v. Cortez, 543 F. App’x 411, 412 (5th Cir.
2013) (under plain error review, upholding a condition “conditionally
restricting [Cortez] from dating or befriending anyone with children under the
age of 18 who live at home”).
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Contrary to Pennington’s argument, condition eight also is not
redundant in light of condition six. 2 While condition six limits direct
unsupervised contact with children, condition eight relates to romantic
relationships with parents of minor children. Although the district court’s
purpose for imposing both conditions—to protect children and prevent
recidivism—may be the same, the two conditions achieve that purpose in
different ways.
B. Vagueness
Pennington also claims that condition eight is impermissibly vague.
“Restrictions on an offender’s ability to interact with particular groups of
people . . . must provide fair notice of the prohibited conduct.” Paul, 274 F.3d
at 166 (internal quotation marks and citation omitted). But conditions need
not be “precise to the point of pedantry.” Id. at 167. “[C]ategorical terms can
provide adequate notice of prohibited conduct when there is a commonsense
understanding of what activities the categories encompass.” Id.
Under a commonsense reading of condition eight, and in light of the
district court’s statements at sentencing, Pennington must obtain permission
from the probation officer before cohabiting or becoming romantically involved
with another person who has a child under age 18. Contrary to Pennington’s
argument, the condition does not apply to a “meeting with a friend” or “striking
up a conversation with someone.” Our court, reviewing for plain error a
restriction on friendships, noted in dicta that “the term ‘befriend’ is vague and
may have been subject to vacatur and remand to the district court for greater
2 Condition six provides: “With the exception of unanticipated and/or incidental
contact, the defendant shall have no direct unsupervised contact, including by
correspondence, telephone, internet or other electronic communication, or through third
parties, with children under the age of 18, except in the presence of an adult who has been
approved in advance by the probation officer.”
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specificity” had the defendant objected on vagueness grounds in the district
court. Ellis, 720 F.3d at 227 n.2. However, the requirement of romantic
involvement provides sufficient specificity to put Pennington on notice of when
he must notify and seek approval from his probation officer. 3
III. Reasonableness of Upward Variance
Pennington challenges the procedural and substantive reasonableness of
his 84-month sentence, which is 43 months greater than the top of his
Guidelines range. Because Pennington did not challenge the procedural
reasonableness of his sentence in the district court, we review that argument
for plain error. Under plain error review, “we may not provide relief unless
there was (1) error, (2) that is plain, and (3) that affects substantial rights.
Even when these elements are met, we have discretion to correct the forfeited
error only if it seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” Tang, 718 F.3d at 482–483 (internal quotation marks
and citations omitted). Pennington argues that his sentence is procedurally
unreasonable because the district court did not adequately explain the
We may part ways here with the Second Circuit. See United States v. Reeves, 591
3
F.3d 77, 80–81 (2d Cir. 2010) (finding “too vague to be enforceable” a condition requiring the
defendant to notify the probation department “when he establishes a significant romantic
relationship”). But see State v. Maddox, Nos. 2010-194, 2010-195, 2010-196, 2011 WL
4979925, at *2 (Vt. 2011) (finding that a condition requiring the defendant to “inform the
probation officer of his intent to begin a romantic or dating relationship” was “sufficiently
clear to put defendant on notice” and distinguishing Reeves on the ground that the condition
did not include the term “significant”). The Second Circuit cites Hollywood for the truth that
relationships often begin, and continue, with romantic uncertainty. Reeves, 591 F.3d at 81.
However, while the line between friendship and romance may not be immediately clear to a
moviegoer, or even to the target of affections, Pennington should know when he intends to
become romantically involved with another person. Regardless, courts every day are obliged
to adjudicate criminal cases, even with arrested persons and not twice-convicted sex
offenders, and must assess and impose no-contact orders, as well as lesser restrictions on
personal associations. 18 U.S.C. § 3142(c)(B)(iv); see generally United States v. Salerno, 481
U.S. 739 (1987).
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sentence and failed to address the mitigating factors that Pennington offered.
These factors include Pennington’s history of mental illness, his homelessness,
his low level of education, and his lack of family support.
It is procedural error to “fail[] to adequately explain the chosen
sentence—including an explanation for any deviation from the Guidelines
range.” Gall v. United States, 552 U.S. 38, 51 (2007). “The sentencing judge
should set forth enough to satisfy the appellate court that he has considered
the parties’ arguments and has a reasoned basis for exercising his own legal
decisionmaking authority.” Rita v. United States, 551 U.S. 338, 356 (2007). “A
sentence within the Guidelines range will require little explanation, but where
a party ‘presents nonfrivolous reasons for imposing a different sentence . . . the
judge will normally go further and explain why he has rejected those
arguments.’” United States v. Rouland, 726 F.3d 728, 732 (5th Cir. 2013) (first
internal quotation marks and citation omitted) (quoting Rita, 551 U.S. at 357).
In United States v. Fraga, 704 F.3d 432, 439 (5th Cir. 2013), we held that the
sentencing judge adequately explained her reasons for rejecting mitigating
evidence and imposing an upward variance where she “heard and considered
the evidence and arguments, repeatedly questioned Fraga, the prosecution and
the probation officer, and gave Fraga multiple opportunities to speak and
present mitigating evidence,” before adopting the PSR and concluding that an
“upward variance was necessary to deter future criminal conduct and to
protect the public.”
At Pennington’s sentencing, the district court listened to Pennington’s
arguments and gave him and his counsel several opportunities to speak. The
court told Pennington, “I hear what you are saying regarding the lack of
resources that have been available to you.” Nevertheless, the court stated that
an upward variance was appropriate based on the sentencing factors listed in
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§ 3553(a), including “the nature and circumstances of the offense,” “the history
and characteristics of the defendant,” the need “to protect the public,” and the
need “to afford adequate deterrence to criminal conduct.” The court thoroughly
explained the factual basis for the variance, including Pennington’s two prior
convictions for sex offenses, his repeated failure to register as a sex offender,
and his numerous violations of probation. We find no plain error in the court’s
explanation of its sentence or its response to Pennington’s arguments.
Pennington also objects to the substantive reasonableness of his
sentence. We review Pennington’s argument for abuse of discretion because he
objected on that basis in the district court. See id. In reviewing Pennington’s
sentence for substantive reasonableness, we must consider “the totality of the
circumstances, including the extent of any variance from the Guidelines
range.” Gall, 552 U.S. at 51; see also United States v. Brantley, 537 F.3d 347,
349 (5th Cir. 2008). However, we “must give due deference to the district
court’s decision that the § 3553(a) factors, on a whole, justify the extent of the
variance.” Gall, 552 U.S. at 51. Moreover, “[t]he fact that the appellate court
might reasonably have concluded that a different sentence was appropriate is
insufficient to justify reversal of the district court.” Id. “A sentence is
unreasonable if it (1) does not account for a factor that should have received
significant weight, (2) gives significant weight to an irrelevant or improper
factor, or (3) represents a clear error of judgment in balancing the sentencing
factors.” United States v. Peltier, 505 F.3d 389, 392 (5th Cir. 2007) (internal
quotation marks and citation omitted). Pennington argues that the district
court failed to account for the mitigating factors that he highlighted, and that
it gave excessive weight to his criminal history.
We find Pennington’s arguments unpersuasive. As noted above, the
district court considered the mitigating factors that Pennington presented. The
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court nevertheless decided that other factors, including Pennington’s criminal
history, supported a significant variance. We have held that “[a] defendant’s
criminal history is one of the factors that a court may consider in imposing a
non-Guideline[s] sentence.” United States v. Smith, 440 F.3d 704, 709 (5th Cir.
2006). “And, we have previously found it permissible for a sentencing judge to
evaluate the ‘nature and circumstances of the offense and the history and
characteristics of the defendant’ and conclude that it would deviate ‘to afford
adequate deterrence to criminal conduct’ and ‘to protect the public from further
crimes of the defendant.’” Fraga, 704 F.3d at 440 (internal quotation marks,
alterations, and citation omitted) (holding that “the district court judge did not
abuse her discretion in giving significant weight to Fraga’s criminal history
and its characteristics”). Given the deference we owe to the sentencing court,
we find no abuse of discretion in the imposition of the variance. See United
States v. McElwee, 646 F.3d 328, 337–38 (5th Cir. 2011) (stating that a
substantial deviation from the Guidelines did not constitute an abuse of
discretion where it was “commensurate with the individualized, case-specific
reasons provided by the district court” (internal quotation marks and citation
omitted)).
CONCLUSION
For the above reasons, Pennington’s sentence is AFFIRMED.
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