United States v. Kenneth Lewis , 565 F. App'x 490 ( 2012 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a1147n.06
No. 11-6445
FILED
UNITED STATES COURT OF APPEALS Nov 05, 2012
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR THE
) WESTERN DISTRICT OF TENNESSEE
KENNETH BRUCE LEWIS, )
)
Defendant-Appellant. )
)
Before: SUTTON, GRIFFIN and WHITE, Circuit Judges.
HELENE N. WHITE, Circuit Judge. Defendant Kenneth Lewis appeals the sentences
imposed following his guilty-plea convictions of failure to update registration under the Sex
Offender Registration and Notification Act (SORNA), 18 U.S.C. § 2250(a), and felon in possession
of a firearm, 18 U.S.C. § 922(g). Lewis was sentenced to concurrent terms of 24 months’
imprisonment, to be served consecutively to his seven-year state sentence for a probation violation.
The court also imposed ten years of supervised release with thirteen additional conditions. Lewis
appeals, claiming procedural error with regard to the imposition of a consecutive sentence, and
constitutional and procedural error in connection with the imposition of three of the thirteen
additional conditions of his supervised release. We AFFIRM.
No. 11-6445
United States v. Lewis
I.
A. Facts
On June 3, 1999, Lewis pled guilty of possession of child pornography, Tex. Penal Code
Ann. § 43.26, in Texas state court after several images of child pornography were discovered in his
home. He was sentenced to ten years’ deferred-adjudication probation on July 8, 1999. Lewis was
also found guilty of possession of a controlled substance (cocaine) in a related incident. The
pornography conviction rendered Lewis statutorily required to register as a Tier I sex offender under
SORNA. Lewis promptly registered as a sex offender in Texas. Approximately four years later,
Lewis moved to Michigan and registered as a sex offender with the Detroit Police Department.
In June of 2003, a Texas court issued an arrest warrant for Lewis after he failed to comply
with conditions of his probation. Lewis remained at large for approximately seven years. In May
of 2010, United States Marshals deputies received information regarding Lewis that led to his arrest.
U.S. Marshals interviewed Lewis’s estranged wife, Diane Deveaux, who told them that Lewis had
used at least two alias identities to avoid capture, had undergone cosmetic surgery to alter his
appearance, and had resided near an elementary school. Deveaux also provided the marshals with
a gun that belonged to Lewis, which Lewis had told her was issued to him during his time as an
undercover IRS agent. At no time was Lewis ever employed as an IRS agent.
B. Procedural History
On December 15, 2010, a federal grand jury indicted Lewis on one count of failure to update
his registration as required by SORNA, and one count of being a felon in possession of a firearm.
Lewis pled guilty to both counts on June 8, 2011 without a plea agreement. Lewis’s sentencing
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guidelines range was calculated as a combined offense level of 13 (after an acceptance of
responsibility reduction) with a criminal history in category III. This placed his guidelines range
between 18 and 24 months of incarceration. Lewis’s supervised release term under the guidelines
was calculated as between five years and life. The government requested an upward variance or
departure from the guidelines range.
After hearing arguments, the court imposed a within-guidelines sentence of 24 months’
imprisonment on each count, to be served concurrently with each other but consecutively to the
seven-year Texas sentence Lewis was serving for his probation violation, and ten years of supervised
release as to count one and three years as to count two, to be served concurrently with each other.
II.
A. Standard of Review
The parties do not agree on the standard of review. Lewis argues that because the district
court did not ask for objections to the sentence in accordance with United States v. Bostic, 371 F.3d
865, 872–73 (6th Cir. 2004), the abuse of discretion standard applies; the government contends that
because Lewis had ample opportunity to object, the plain-error standard applies.
In Bostic, this court articulated a new procedural rule:
[This rule requires] district courts, after pronouncing the defendant’s sentence but
before adjourning the sentencing hearing, to ask the parties whether they have any
objections to the sentence just pronounced that have not previously been raised. If the
district court fails to provide the parties with this opportunity, they will not have
forfeited their objections and thus will not be required to demonstrate plain error on
appeal. If a party does not clearly articulate any objection and the grounds upon
which the objection is based, when given this final opportunity to speak, then that
party will have forfeited its opportunity to make any objections not previously raised
and thus will face plain error review on appeal.
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Id. at 872–73. The preferred approach is for district courts to elicit any objections after announcing
the defendant’s sentence, but before adjourning the hearing. Id. at 872 n.6. The purpose of this rule
is threefold: (1) to help the court of appeals ascertain whether a party had an opportunity to make
additional objections, (2) to allow the district court to correct any error in the first instance, and (3)
to create a more reliable record on appeal. United States v. Simmons, 587 F.3d 348, 356–58 (6th Cir.
2009). The Bostic rule is not satisfied when a sentencing judge asks a vague or abstract question
regarding whether there is “anything else” for the court to decide. United States v. Bey, 384 F.
App’x. 486, 489 (6th Cir. 2010) (refusing to apply plain-error standard when district court asked
defendant whether he had “[a]nything more”).
Because the record is ambiguous regarding whether the district court complied with Bostic,
and the standard of review does not affect the result in this case, we will review the challenged
sentence for reasonableness using the abuse-of-discretion standard. In reviewing for reasonableness,
this court must “ensure that the district court committed no significant procedural error, such as
failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous
facts, or failing to adequately explain the chosen sentence . . . .” Gall v. United States, 552 U.S. 38,
51 (2007). The sentencing court must “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).
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B. Analysis
1. Whether the district court committed a procedural error in imposing a federal
sentence consecutive to Lewis’s state sentence.
District courts generally have discretion to impose a concurrent or consecutive sentence.
Section 3584 requires courts to consider the factors set forth in 18 U.S.C. § 3553(a) and the relevant
guideline and policy statements when deciding whether to impose a concurrent or consecutive
sentence. 18 U.S.C. § 3584. Section 5G1.3(c) of the sentencing guidelines states that courts may
impose a sentence to run concurrently, partially concurrently, or consecutively in order “to achieve
a reasonable punishment for the instant offense.” U.S.S.G. § 5G1.3(c). The commentary to this
section explains that in addition to the § 3553(a) factors, courts should consider:
(ii) The type (e.g., determinate, indeterminate/parolable) and length of the prior
undischarged sentence;
(iii) The time served on the undischarged sentence and the time likely to be served
before release;
(iv) The fact that the prior undischarged sentence may have been imposed in state
court rather than federal court, or at a different time before the same or different
federal court; and
(v) Any other circumstance relevant to the determination of an appropriate sentence
for the instant offense.
U.S.S.G. § 5G1.3 cmt. n.3(A). “A court does not abuse its discretion when it makes generally clear
the rationale under which it has imposed the consecutive sentence and seeks to ensure the
appropriate incremental penalty for the instant offense.” United States v. Kitchen, 428 F. App’x.
593, 597 (6th Cir. 2011) (quoting United States v. Berry, 565 F.3d 332, 342 (6th Cir. 2009)). This
court has cautioned, however, that “this is not unfettered discretion, and the record on appeal should
show that the district court turned its attention to § 5G1.3(c) and the relevant commentary in its
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determination of whether to impose a concurrent or consecutive sentence.” United States v. Johnson,
553 F.3d 990, 998 (6th Cir. 2009) (citation and internal quotation marks omitted). It is not necessary
that a district court reference section 5G1.3 by its title, so long as it considers each of the factors
contained in the application note. United States v. Harmon, 607 F.3d 233, 239 (6th Cir. 2010).
In the instant case, the district court clearly analyzed the § 3553(a) factors. The court
addressed the offense conduct by reiterating many of the PSR’s undisputed findings. The court also
addressed Lewis’s personal history, including his history of drug abuse (which the court found to be
minor) as well as his educational background. The court further noted that Lewis had served in the
Air Force from 1981 to 1984, before receiving an honorable discharge. The court placed particular
emphasis on the fact that Lewis had engaged in subterfuge to avoid registering under SORNA, which
it found particularly problematic. In addressing the seriousness of the offense and the need to
promote respect for the law, the court observed that Lewis’s deliberate subterfuge suggested the need
for a higher sentence.
When considering the need to protect the public, the court noted that Lewis had never
committed a crime of violence. However, the court observed that Lewis’s conduct in avoiding
SORNA’s registration requirements supported a need for a longer period of supervision. After
balancing Lewis’s positive personal history in the Air Force and strong work history against the
subterfuge involved in altering his appearance and the length of time he had avoided registration, the
court concluded that a within-guidelines period of imprisonment of 24 months would be adequate
to meet the objectives of § 3553(a).
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The court addressed the indeterminate length of Lewis’s state sentence and engaged in a
discussion with defense counsel regarding the fact that it was unclear when Lewis would be paroled
from his state sentence. The court noted that it was unlikely that Lewis would serve the full seven
years of his Texas sentence, and that he would probably be paroled before then. The court also cited
section 5G1.3(c) while imposing the consecutive sentence, thereby reflecting its recognition that it
possessed the discretion to impose a concurrent, partially concurrent, or consecutive sentence. Thus,
it is clear from the record that the district court adequately considered the § 3553(a) factors, and
understood that it possessed the discretion to impose a concurrent sentence.
2. Whether the district court erred in imposing additional conditions of supervised
release 3, 4 and 8.
Lewis argues that the district court abused its discretion in imposing the following three
conditions on his ten-year period of supervised release:
3. The defendant shall not possess any pornography.
4. The defendant shall not directly or indirectly have any contact with any child
under age 18; shall not reside with any child under the age of 18; and shall not loiter
near school yards, playgrounds, swimming pools, arcades or other places frequented
by children.
8. The defendant shall not possess or use a computer with access to any “on-line
service” or other forms of wireless communication at any location (including
employment) without the prior approval of the Probation Officer. This includes any
Internet Service Provider, bulletin board system or any other public or private
network or email system.
When reviewing the imposition of special conditions on supervised release, this court must
“determine whether the district court adequately stated in open court at the time of sentencing its
rationale for mandating special conditions of supervised release,” United States v. Inman, 666 F.3d
1001, 1004 (6th Cir. 2012) (per curiam) (internal quotation marks omitted), and “whether the
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condition of supervised release is reasonably related to the dual goals of probation, the rehabilitation
of the defendant and the protection of the public.” Id. (internal quotation marks and citations
omitted).
a. The prohibition on the possession of pornography
Lewis raises several objections to the third additional condition of his supervised release,
which prohibits him from possessing “any pornography.” First, Lewis argues that the court’s
reasoning in imposing this condition is unclear and requires “further analysis and explanation” under
this court’s holding in Inman. Next, Lewis contends that this condition is not reasonably related to
the factors enumerated in § 3553(a), that it is a greater deprivation of liberty than is necessary, and
that it is not consistent with pertinent policy statements issued by the Sentencing Commission.
Finally, Lewis argues that a complete ban on the possession of pornography is a content-based
restriction on speech that fails strict scrutiny under the First Amendment.
First, Lewis argues that the district court did not adequately explain and analyze why it
imposed a ban on the possession of pornography. We disagree. The court imposed the terms of
supervised release after a lengthy consideration of the § 3553(a) factors, as detailed above. When
Lewis questioned the prohibition, the court explained its reasoning:
Any means any. You can’t have any. Although adult pornography may be legal, but
in this case we can forbid it. It’s probably—that’s precautionary. And I have had
people actually come in and say, well, you know, I got all this adult pornography, and
then—well, you know, I got some child pornography too, so it is just one of those
things where one thing is legal and one thing clearly not legal, and they’re
attempting—I can even order somebody, for example, not to have any alcohol even
though alcohol is legal because they have a problem with alcohol, I can preclude
them from having it. You have got a past problem with child pornography, this is
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like an ultimate vaccination, it simplifies the supervisory process, and it is actually
good for you. It may not seem good for you, but it is good for you.
From this explanation, it is clear that the district court found it necessary to keep Lewis away from
all pornography because of his previous possession of child pornography. The court expressed a
belief that the possession of adult pornography could lead to the inadvertent or intentional possession
of child pornography, and that the supervisory process would be simpler if issues of inadvertent
possession were removed. A remand for further explanation and analysis is not necessary.
Lewis next argues that the ban on his possession of all pornography violates
§ 3583(d)(1)–(3). This section allows courts to impose a further condition on supervised release to
the extent that the condition is:
(1) reasonably related to the factors set forth in § 3553(a)(1), (a)(2)(B), (a)(2)(C),
and (a)(2)(D);
(2) involves no greater deprivation of liberty than is reasonably necessary for the
purposes set forth in § 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D); and
(3) is consistent with any pertinent policy statements issued by the Sentencing
Commission.
18 U.S.C. § 3583(d). Lewis argues that because his offense conduct was related to a gun charge and
his failure to register under SORNA, the ban on pornography is not reasonably related to his offense.
Lewis further contends that such a ban is not necessary because his original conviction for possession
of child pornography occurred in 1999 and he has not possessed any child pornography since that
time.
In determining Lewis’s sentence, the district court noted numerous times that Lewis avoided
the required sex-offender registration, changed his name, and altered his appearance to elude capture.
These actions had the effect of undermining the purpose of SORNA, which is to protect the
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community at large. Because the violation of SORNA is related to Lewis’s initial offense of
possession of child pornography, the additional condition barring Lewis from possessing all
pornography is reasonably related to the offense conduct. Further, given Lewis’s history, the court
did not abuse its discretion in concluding that a ban on possession of pornography of any kind was
reasonably necessary to insure that Lewis will not re-offend.
Lewis also challenges the ban as a violation of his First Amendment rights. Specifically, he
argues that the ban on his possession of pornography is a content-based restriction that cannot
survive strict scrutiny. However, this is not the correct standard. As we have noted, “[e]ven
individual fundamental rights safeguarded by the United States Constitution may be denied or
limited by judicially exacted special conditions of supervised release, as long as those restrictions
are ‘directly related to advancing the individual’s rehabilitation and to protecting the public from
recidivism.’” United States v. Kingsley, 241 F.3d 828, 839 n.15 (6th Cir. 2001) (quoting United
States v. Ritter, 118 F.3d 502, 504–05 (6th Cir. 1997)). “Just as other punishments for criminal
convictions curtail an offender’s freedoms, a court granting probation may impose reasonable
conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens.” United
States v. Knights, 534 U.S. 112, 119 (2001). The district court reasonably related the supervised
release condition prohibiting Lewis from possessing pornography with his offense conduct, the need
to protect the public, and Lewis’s need for rehabilitation. Thus, the condition does not violate
Lewis’s rights under the First Amendment.
b. The prohibition on contact with minors
Lewis next challenges the fourth additional condition of his supervised release:
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4. The defendant shall not directly or indirectly have any contact with any child
under age 18; shall not reside with any child under the age of 18; and shall not loiter
near school yards, playgrounds, swimming pools, arcades or other places frequented
by children.
Lewis argues that the district court did not reasonably relate this condition to his personal history and
the § 3553(a) factors as required by § 3583(d). He further contends that the restriction on living with
minors violates his fundamental right to marry, procreate, and rear and educate his children.
The same factors and reasons that support the court’s imposition of the pornography ban
support the no-contact and no-loitering bans. Regarding the prohibition on living with children,
“[e]ven individual fundamental rights safeguarded by the United States Constitution may be denied
or limited by judicially exacted special conditions of supervised release, as long as those restrictions
are ‘directly related to advancing the individual’s rehabilitation and to protecting the public from
recidivism.’” Kingsley, 241 F.3d at 839 n.15 (quoting Ritter, 118 F.3d at 504–05). Given that Lewis
does not have children, the condition that he refrain from living with children is reasonable,
especially since he has demonstrated a willingness to go to great lengths to conceal his history of
possessing child pornography. Further, the district court indicated its willingness to revisit the
condition if circumstances arose where Lewis wanted to have children of his own or marry someone
who already had children. The imposition of this condition was not an abuse of the court’s
discretion.
c. The restrictions on internet and computer usage
The final condition Lewis challenges is the restriction of his ability to use a computer:
8. The defendant shall not possess or use a computer with access to any “on-line
service” or other forms of wireless communication at any location (including
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employment) without the prior approval of the Probation Officer. This includes any
Internet Service Provider, bulletin board system or any other public or private
network or email system.
Lewis contends both that there is a conflict between the condition as it was imposed orally at the
sentencing hearing and the condition as it was written in the judgment, and that the condition is not
reasonably related to the section 3553(a) factors.
There is no conflict between the oral and written conditions. Both convey the same message:
Computer usage by Lewis is restricted but not banned entirely, and Lewis may use a computer for
work purposes so long as he first obtains the approval of his probation officer who may search his
computer for pornographic materials. Lewis cites only the very last portion of the court’s discussion
with him as evidence that the oral condition was less onerous than the written judgment indicated.
However, a review of the entire sentencing hearing transcript makes it clear that the district court
intended to impose the restriction that the probation officer approve any work-related use of a
computer. For this reason, Lewis’s argument is without merit.
Finally, we reject Lewis’s argument that additional condition number 8 is not reasonably
related to the § 3553(a) factors as required by § 3583(d). The court clearly intended the restriction
on computer usage to limit Lewis’s ability to access pornographic materials (and child pornography
in particular) from the internet. The court analyzed and weighed Lewis’s history in imposing this
condition and we find no abuse of discretion.
Accordingly, we AFFIRM Lewis’s sentence.
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