United States v. Ross, Kenneth J. ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-1821
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KENNETH ROSS,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 05-CR-24—Charles N. Clevert Jr., Judge.
____________
ARGUED DECEMBER 8, 2006—DECIDED JANUARY 29, 2007
____________
Before BAUER, FLAUM, and KANNE, Circuit Judges.
FLAUM, Circuit Judge. On October 24, 2005, Kenneth
Ross pled guilty to three counts of making false state-
ments to the FBI, in violation of 18 U.S.C. §1001. On
March 13, 2006, the district court sentenced him to 60
months’ imprisonment, followed by three years of super-
vised release. Considering Ross’s personal background as
well as the facts underlying his conviction, the court
imposed as a special condition of supervised release that
Ross participate in a sex offender mental health assess-
ment and any necessary treatment. Ross appeals the
court’s imposition of sex offender assessment and treat-
ment. We affirm.
2 No. 06-1821
I. BACKGROUND
Between March and September of 2004, Kenneth Ross
made several false statements to FBI Special Agent Jack
Felske. Ross told Felske that he and others had buried a
murdered child’s body in Minnesota. Though he identi-
fied an actual missing child and specified a burial loca-
tion, in reality, he had no knowledge of or involvement
in the child’s disappearance. After admitting that his
prior statements were false, Ross changed his story
and said that he had actually buried the child at a Mil-
waukee construction site. The FBI’s further investigation
of the claim revealed that Ross had once again lied.
In another FBI interview, Ross claimed that he was
cooperating with the FBI to protect his son from a child
sex ring with which Ross was associated. He said that
members of the sex ring were holding his son somewhere
in Oregon. Ross then showed Felske a photograph of a
young boy and identified him by name. Further investiga-
tion established that the individual in the photograph
was not Ross’s son. In fact, Ross had obtained the photo-
graph eight years earlier when he was acquainted with
the boy’s family.
Once Ross pled guilty, the probation office prepared a
pre-sentence investigation report (“PSR”), which detailed
the facts underlying Ross’s conviction as well as his
criminal and personal history. The PSR disclosed that
since 1981, Ross had been convicted of numerous offenses
including forgery, arson, petty theft, writing worthless
checks, operating a vehicle without the owner’s consent,
and theft by fraud. Notably, Ross had never been charged
with or convicted of any sex offense. The PSR also indi-
cated that in 1998, while Ross was incarcerated in a
Wisconsin prison, he received a violation report for engag-
ing in sexual activities with other inmates. A majority
of the inmates with whom Ross had sexual contact were
No. 06-1821 3
victims of sexual abuse or in the sex offender treatment
program. Before exchanging sexual favors with them, Ross
would recruit the inmates to join the Gothic Naturalists,
a religious group of which he claimed to be a “High Priest.”
In 2003, Ross underwent a psychological evaluation after
serving time in prison for an unrelated conviction. The
psychological assessment described Ross as a “man of
above average intelligence with no major affective or
thought disorder.” Although it labeled him a “bright,
highly manipulative individual who is likely to prey on
vulnerable dependent individuals,” the assessment stated
that he was unlikely to “act out in a sexually violent
manner.”
At Ross’s sentencing hearing, the district court re-
quired as a special condition of supervised release that
Ross participate in a program of sex offender mental
health treatment. The district court stated:
Let me add hastily, in light of your personal back-
ground you’re not to associate or have any type of
conduct with any person under the age of 18 without
adult supervision or approval by your supervising
probation officer. You’re required to participate in a
program of sex offender mental health assessment
and treatment as approved by your supervising proba-
tion officer.
Transcript of Sentencing Hearing at 20-21, United States
v. Ross (No. 05-CR-24) (E.D. Wis. 2005). Ross then filed
this appeal.
II. DISCUSSION
As a threshold issue, the parties set forth their analyses
under different standards of review. Normally, we review
a district court’s decision to impose a special condition of
4 No. 06-1821
supervised release for abuse of discretion. See United
States v. Angle, 234 F.3d 326, 346 (7th Cir. 2000); United
States v. Wilson, 154 F.3d 658, 667 (7th Cir. 1998). The
government contends, however, that we should review
for plain error only because Ross did not object to the
special condition of supervised release. See, e.g., United
States v. McKissic, 428 F.3d 719, 721-22 (7th Cir. 2005).
Ross does not claim to have objected below. As result, we
agree with the government that plain error review is
appropriate. A plain error is one that not only is clear and
obvious, but also is of such significance that a failure to
correct it may result in a miscarriage of justice. United
States v. Guy, 174 F.3d 859, 861 (7th Cir. 1999).
Under 18 U.S.C. § 3583(d), a sentencing court has
discretion to impose appropriate conditions of supervised
release, to the extent that such conditions (1) are reason-
ably related to the factors identified in § 3553(a), including
the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) involve
no greater deprivation of liberty than is reasonably nec-
essary for the purposes set forth in § 3553(a); and (3) are
consistent with the policy statements issued by the
Sentencing Commission. See Angle, 234 F.3d at 346.
Policies emphasized by the Sentencing Commission in-
clude deterrence, rehabilitation, and protecting the public.
Ross argues that the district court’s imposition of sex
offender treatment did not meet the criteria necessary
for imposing a special condition of supervised release.
First, he claims, sex offender treatment is not reasonably
related to the offense of lying to the FBI. Ross correctly
observes that nothing in the indictment, plea agreement,
or PSR suggested that any sexual misconduct was part
of the charged offense.
Second, Ross argues, sex offender treatment is not
reasonably related to his personal history. In particular, he
No. 06-1821 5
emphasizes the fact that he has never been charged with
or convicted of a sex offense. He also points out that the
psychological assessment performed on him upon his
release from prison in 2003 stated that “it did not appear
the defendant would act out in a sexually violent
manner1.” Ross continues by attacking the district court’s
reliance on Ross’s 1998 prison violation report, noting
that the sexual conduct at issue did not involve a minor
and was consensual.
Finally, Ross contends, requiring sex offender treatment
in this case will not help protect the public or rehabilitate
Ross. In other words, Ross maintains that he poses no
danger to the public and, thus, does not need to be rehabil-
itated. Therefore, he concludes, sex offender treatment
is a greater deprivation of liberty than is necessary under
the circumstances.
The government disagrees with Ross’s analysis, arguing
that numerous facts support the imposition of sex of-
fender treatment. First, although Ross’s conviction does
not, on its face, suggest any sexual misconduct, Ross made
a number of statements to the FBI regarding his associa-
tion with and participation in a child sex ring. Second, it
continues, Ross’s “sexual misconduct” while in prison,
which the government characterizes as “preying on fellow
inmates who were victims of sexual abuse or who were
in the sex offender treatment program,” indicates Ross’s
need for treatment. Finally, it contends that the district
court’s sentence entailed a relatively minor deprivation of
liberty and was reasonably related to the goals of provid-
ing treatment to Ross and protecting the public from
further crimes.
1
In our estimation, Ross’s 2003 psychological assessment does
not demonstrate that he is unlikely to commit a sexual offense.
Although the report deems Ross unlikely to act out in a sexually
violent manner, not all sexual offenses are violent.
6 No. 06-1821
Although we have not had occasion to decide whether
sex offender treatment may be imposed as a special
condition of supervised released where the offense of
conviction is not a sex offense, other circuits have. In
United States v. Carter, 463 F.3d 526, 527 (6th Cir. 2006),
the defendant pled guilty to being a felon in possession
of a firearm. His criminal history included two seventeen-
year-old sex offenses, and the district court ordered sex
offender treatment based on those offenses. Id. at 530. The
Sixth Circuit vacated the district court’s imposition of
sex offender treatment, holding that it was not rea-
sonably related to the defendant’s offense of conviction
or criminal history. Id. It noted that sex offender treat-
ment was not reasonably related to being a felon in
possession of a firearm and then determined that the
remoteness of the prior sex crimes destroyed any rea-
sonable relationship between sex offender treatment
and deterrence, public protection, or rehabilitation. Id. at
530-32.
Carter is distinguishable from this case for a few rea-
sons. First, the supervisory condition in Carter was
vacated under an abuse of discretion standard of review.
By contrast, review in this case is for plain error, meaning
that we will reverse only if the district court’s decision
threatens a miscarriage of justice. Presumably, Ross would
only have to undergo sex offender treatment in the event
that the court-ordered evaluation finds such treatment
necessary, and that does not constitute a miscarriage of
justice. Second, the facts underlying the offense of con-
viction in Carter raised no “red flags,” whereas here
Ross’s lies to the FBI included claims that he buried a
murdered child and was involved with a child sex ring.
Moreover, the troublesome facts underlying Ross’s con-
viction were by no means remote. Accordingly, Carter is
of no help to Ross.
No. 06-1821 7
The First Circuit’s holding in United States v. Prochner,
417 F.3d 54 (1st Cir. 2005), supports affirming the special
condition in this case. In Prochner, the defendant was
convicted of credit card fraud, and the record contained
no direct evidence that the defendant engaged in inap-
propriate conduct with minors. Id. at 63-64. Nevertheless,
his work history showed frequent contact with young
boys, and his journal expressed sexual fantasies about
adolescent males. Id. This was enough, the court reasoned,
under a plain error standard, to affirm the imposition of
sex offender treatment, because the district court “could
reasonably believe that Prochner might pose a threat to
children.” Id. at 64; see also United States v. York, 357
F.3d 14 (1st Cir. 2004) (approving sex offender treatment
for a defendant convicted of mailing threatening letters to
his ex-wife, even though the offense of conviction was not
sexual).
In this case, as in Prochner, the district court con-
sidered evidence suggesting that Ross fantasized about
crimes against children.2 We agree with the First Cir-
cuit’s conclusion that evidence of such fantasies is suffi-
cient to warrant sex offender treatment where review
is for plain error. Although the imposition of sex of-
fender treatment in this case is somewhat unusual given
that the offense of conviction, on its face, is not sexual in
nature, the facts underlying the conviction convince
us that the sentence will not result in a miscarriage of jus-
tice.
2
Because the underlying facts of the conviction are sufficient to
support the imposition of sex offender treatment under plain
error review, we do not consider the probative value, if any, of
Ross’s sexual conduct in prison.
8 No. 06-1821
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
imposition of a sex offender assessment followed by
treatment, if necessary.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-29-07