United States v. Caldwell ( 2023 )

Case: 23-10295 Document: 00516982439 Page: 1 Date Filed: 11/29/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 23-10295
Summary Calendar FILED
____________ November 29, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Arkon Caldwell,
Defendant—Appellant,
consolidated with
_____________
No. 23-10296
_____________
United States of America,
Plaintiff—Appellee,
versus
Arkon Christopher Caldwell,
Defendant—Appellant.
Case: 23-10295 Document: 00516982439 Page: 2 Date Filed: 11/29/2023
No. 23-10295
c/w No. 23-10296
______________________________
Appeals from the United States District Court
for the Northern District of Texas
USDC Nos. 2:22-CR-96-1, 2:22-CR-103-1
______________________________
Before Jones, Southwick, and Ho, Circuit Judges.
Per Curiam: *
Arkon Caldwell pleaded guilty to failing to register as a sex offender.
For this conviction, the district court sentenced him to 16 months of
imprisonment, to be followed by 10 years of supervised release. It also
imposed a six-month term of imprisonment upon revocation of a previously
imposed term of supervised release.
Caldwell has failed to brief, and thus abandoned, any argument
regarding the revocation case. See United States v. Buendia, 73 F.4th 336, 338
n.1 (5th Cir. 2023), petition for cert. filed (U.S. Oct. 10, 2023) (No. 23-5788).
However, Caldwell challenges his sentence for failure to register as a sex
offender on several grounds.
First, he argues that the district court plainly erred in failing to
adequately explain its imposition of an above-guidelines term of supervised
release. Contrary to Caldwell’s arguments, the record reflects that the
district court had the correct guidelines range in mind at sentencing but
intended to impose an upward variance on the term of supervised release;
thus, Caldwell’s arguments fail to establish an effect on his substantial rights.
See United States v. Escalante-Reyes, 689 F.3d 415, 424 (5th Cir. 2012) (en
banc); see also Puckett v. United States, 556 U.S. 129, 135 (2009).
_____________________
*
Pursuant to 5th Circuit Rule 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should not be published and is not precedent except under the limited circumstances set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 Circuit Rule 47.5.4.
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Case: 23-10295 Document: 00516982439 Page: 3 Date Filed: 11/29/2023
No. 23-10295
c/w No. 23-10296
Next, Caldwell challenges the conditions of his supervised release
requiring mental-health and sex-offender treatment. Both conditions are
reasonably related to the relevant statutory factors and are supported by the
record, particularly Caldwell’s (1) prior mental-health diagnosis and use of
medication and (2) prior child sex offense and his repeated attempts in the
instant case to defy the registration requirement, which, we have recognized,
implicate a greater likelihood of recidivism. See United States v. Miller,
665 F.3d 114, 126 (5th Cir. 2011); United States v. Bree, 927 F.3d 856, 860-61
(5th Cir. 2019); United States v. Fields, 777 F.3d 799, 803-04 (5th Cir. 2015).
We reject Caldwell’s argument, raised for the first time on appeal, that the
sex-offender-treatment condition is not narrowly tailored, as the district
court’s chief concern in imposing that condition was Caldwell’s risk of
recidivism, not the need for polygraph testing. See Miller, 665 F.3d at 134;
Fields, 777 F.3d at 804.
AFFIRMED.
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