United States v. Edwin James , 792 F.3d 962 ( 2015 )

United States Court of Appeals
For the Eighth Circuit
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No. 14-2756
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Edwin James
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Arkansas - Texarkana
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Submitted: February 13, 2015
Filed: July 7, 2015
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Before RILEY, Chief Judge, LOKEN and SMITH, Circuit Judges.
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SMITH, Circuit Judge.
Edwin James appeals his sentence of lifetime supervised release and certain
conditions of supervised release imposed by the district court after James pleaded
guilty to failing to register as a sex offender, in violation of 18 U.S.C. § 2250, as is
required by the Sex Offender Registration and Notification Act (SORNA), 42 U.S.C.
§§ 16901–16991. We affirm in part and reverse in part.
I. Background
In 1979, James pleaded guilty in Washington state to one count of statutory
rape in the first degree for having sexual intercourse with a four-year-old girl. Soon
after his conviction, James was declared to be a sexual psychopath. The court
sentenced him to a suspended sentence of twenty years at a psychiatric hospital
contingent on his completion of a sexual psychopathy program. During his treatment
at the hospital, James admitted to hospital staff that he sexually abused three of his
children and his nephews on several occasions. The treatment also elicited a
confession from James that he sexually abused a six-year-old girl when he was
seventeen years old, and that he sexually abused a 12- or 13-year-old girl when he
was in his twenties. Hospital staff also believed that James's dependence on alcohol
exacerbated his deviance and "aggravate[d] his potential for acting out in a predatory
fashion."
In 1985, James decided to leave the sexual psychopathy program short of
completion because of a domestic dispute with his wife. Hospital staff strongly
warned against James leaving the program because they did not believe James had
overcome his sexual deviance. In a letter to the court, hospital staff called attention
to "[h]is deviousness, attempts to shift accountability and to manipulate others" even
after several years of treatment. After James left the program, the court revoked his
suspended sentence and sentenced James to prison. James was paroled in 1988. Soon
after his release, James began a sexual relationship with Linda Hance, a mentally
handicapped woman. James and Hance share a child together who was born in 1993.
Additionally, James was convicted twice in California for failing to register as a sex
offender in 1995.
James and his family moved to De Queen, Arkansas in early 2013. James last
registered as a sex offender on May 17, 2012, in Sacramento, California, where he
was then living. Coordination between law enforcement in Sacramento and De Queen
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lead to James's location and arrest in October 2013. James was indicted on one count
of failing to register under SORNA, to which he pleaded guilty.
The district court sentenced James to 15 months' imprisonment and a lifetime
term of supervised release. Upon James's objection to lifetime supervised release, the
court stated the following:
18 United States Code 3[853(k)] states, the authorized term of
supervised release under section 2250 is, any term of years not less than
5 or life. Guidelines [§] 5D1.2[(b)(2)] . . . says, not withstanding or in
spite of [section 5D1.2(a)(1)–(3),] if [the] offense is a sex offense the
term is then five years to life. Now, [James's counsel] explains that
failure to register is not, and it's supported by the law, a sex offense. It's
merely a violation of the law.
***
I think circumstances like this and maybe the 8th Circuit or somebody
will be corrected, but administrative violations of law can't trump what
you were originally convicted of. Supervised release, I think under these
conditions should be for life. Although, the defendant's crime initially
was the rape of a four year old child . . . on about November 18, 1979.
And, sexual intercourse with another child, age four, in October or
November of '79. Also, another child, three years old, in November '79.
All of these terrible offenses. As a result you were committed to the
Western State Hospital in Washington state for sexual
psychopath[y] . . . . [You] [u]ltimately pled guilty to being a sexual
psychopath.
***
The records of the defendant's hospital stay in the sentence clearly
reflected that you were in need of continuing treatment and evaluation.
In the opinion of [t]he Court this should have been for life. . . . The state
of Washington defines [a] sexual psychopath as any person who is
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affected in a form of psychoneuroses, or in a form of psychopathic
personality. Which form predisposes such person to the commission of
such sexual offenses in the degree constituting him or her a menace to
the health and safety of others. . . . The defendant [was] also diagnos[ed]
as having a schizoid personality with several deviations. Psychopath[y],
pedophillia and severe alcohol addiction. And, the discharge . . . notes
described you as devious, shift[ing] accountability, and tr[ying] to
manipulate others. It's these things that under the law I am going to find
that you should be placed on supervised release, rather than five years,
but for life.
The court revisited its rationale when pronouncing its sentence. When
discussing James's sentence, the court stated that "the law says . . . five years, but then
I can impose a term of supervised release more than that five years if I explain the
circumstances, and we've done that." The court continued to explain that it thought
James needed the lifetime supervised release because "he's adjudged a
psychopath. . . . He is also deemed [to have a] schizoid personality, sexual deviation,
[and] severe alcoholism." Additionally, the court noted that hospital staff described
James's post-treatment personality as "devious, shifting accountability[,] and
manipulative."
The court also considered James's objections to many of his special conditions
for supervised release. James objected to the child-proximity restriction that
precluded him from being around children without the consent of the probation
office. James argued that this special condition should be modified to accommodate
visitation with his grandchildren because he has not been convicted of a sex offense
in 35 years. James used the same reasoning to argue that the special condition that he
attend sex-offender counseling was unnecessary because he showed no signs of
recidivism. The district court was not convinced. The court found that the challenged
conditions of supervised release were justified when taking into account James's
history of sexual deviance and his untreated mental health diagnoses.
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When announcing James's sentence, the court orally announced each of the
special conditions it was imposing, including a restriction on using computers. James
objected to a special condition restricting his use of computers, to which the court
responded that "[a] lot of times on the computer you can get some things that are
more . . . objectionable than your objection. . . . I'm going to uphold [it]." When the
court issued its written judgment, many of the written special conditions were
materially different from the oral sentence.
II. Discussion
James appeals the district court's lifetime sentence of supervised release and
contends that the district court erred in imposing written special conditions that are
more restrictive than the oral pronouncement. James also renews his challenge to
several conditions of supervised release. The term of supervised release is a part of
a defendant's sentence. 18 U.S.C. § 3583. "In reviewing a challenge to a sentence, we
'must first ensure that the district court committed no significant procedural error.'"
United States v. Dace, 660 F.3d 1011, 1013 (8th Cir. 2011) (quoting Gall v. United
States, 552 U.S. 38, 51 (2007)). In review for procedural error, "we review a district
court's factual findings for clear error and its interpretation and application of the
guidelines de novo." Id. (quotation and citation omitted). "If we discover no
procedural error, we then consider the substantive reasonableness of the sentence
imposed under a deferential abuse-of-discretion standard." United States v.
Timberlake, 679 F.3d 1008, 1011 (8th Cir. 2012) (citation omitted).
A. Lifetime Term of Supervised Release
James first challenges the court's imposition of a lifetime term of supervised
release. James claims the district court committed procedural error and alternatively
argues that his sentence is substantively unreasonable.
1. Procedural Soundness
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Procedurally, James contends that the district court miscalculated the
Guidelines range of the term of supervised release. James first argues that the district
court applied the wrong Guideline section when it stated that "Guidelines [§]
5D1.2[(b)(2)] . . . says . . . if [the] offense is a sex offense the term is then five years
to life." Section 5D1.2(b)(2) was cited in the presentence investigation report ("PSR")
and states that "the term of supervised release . . . may be up to life, if the offense is
. . . . a sex offense." Id. (2013). James argues that failing to register under SORNA is
not a "sex offense." Therefore, to the extent the court adopted the PSR
recommendation and applied § 5D1.2(b)(2) to justify increasing James's term of
supervised release to a lifetime term, the court erred.1
Complete reading of the district court's disposition, however, reveals that the
court did not base its sentence length on § 5D1.2(b)(2) at all. In fact, the court
explicitly acknowledged that "[James's counsel] explains that failure to register is not,
and it's supported by the law, a sex offense. It's merely a violation of the law." Thus,
the court recognized that § 5D1.2(b)(2) was not applicable to James because it
understood that a failure to register is not itself a sex offense.
In calculating James's sentence, the court stated that "the law says . . . five
years, but then I can impose a term of supervised release more than that five years if
I explain the circumstances, and we've done that." The court acknowledged that the
term of supervised release was five years (as James himself argues), but he varied
upward to extend the term to life based on several factors he enumerated.2 A court
1
Since James's sentencing on July, 2, 2014, the Guidelines have been updated
to clarify this very issue. The Guidelines now explicitly state that "an offense under
18 U.S.C. § 2250 (Failure to Register)" is not a sex offense. U.S.S.G. § 5D1.2 cmt. 1
(2014).
2
Our holding does not require us to discuss arguments regarding the Sentencing
Commission's amendment 786 to the commentary of § 5D1.2(c) and the status of
United States v. Deans, 590 F.3d 907 (8th Cir. 2010). See U.S.S.G. Supplement to
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may take into account factors from 18 U.S.C. § 3553(a) "in determining the length of
the term and the conditions of supervised release." 18 U.S.C. § 3583(c). See Gall, 552
U.S. at 50 (stating that if a sentencing court "decides that an outside-Guidelines
sentence is warranted, he must . . . ensure that the justification is sufficiently
compelling to support the degree of the variance . . . [and] adequately explain the
chosen sentence to allow for meaningful appellate review"); United States v.
Goodwin, 717 F.3d 511, 521 (7th Cir. 2013) ("Obviously, 18 U.S.C. § 3583(k) clearly
authorizes any term of years from five to life. . . . [I]f on remand the district court
imposes a supervised release term greater than five years, this term will have to be
explained by something other than the currently available five-year Guidelines
range."). The district court adequately supported its sentence by citing James's mental
health diagnoses, which include sexual psychopathy, schizoid personality, sexual
deviation, and severe alcoholism. The court also noted that hospital staff described
James's post-treatment personality as devious, manipulative, and one that shifts
accountability. Further, the court did not abuse its discretion by taking into account
James's history and the need to protect the public given there was no medical
evidence that James recovered from his psychopathy. See 18 U.S.C. § 3553(a)(1),
(2)(C).
2. Substantive Reasonableness
Next, James argues that the upward variance from five years to life is
substantively unreasonable. James essentially challenges the district court's weighing
of relevant § 3553(a) factors. See United States v. Kane, 639 F.3d 1121, 1136 (8th
Cir. 2011) ("[S]ubstantive review exists, in substantial part, to correct sentences that
are based on unreasonable weighing decisions." (quotation omitted)). District courts
have broad discretion to "assign some factors greater weight than others in
App'x C, amend. 786 (2014). Given the disposition of the district court, we do not
believe its decision was based on a stale interpretation of § 5D1.2(c), but rather was
an upward variance from the Guidelines range of supervised release of five years.
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determining an appropriate sentence." United States v. Bridges, 569 F.3d 374, 379
(8th Cir. 2009) (citation omitted). Thus, "[j]ust because we 'might reasonably have
concluded that a different sentence was appropriate is insufficient to justify reversal
of the district court.'" United States v. Boneshirt, 662 F.3d 509, 517 (8th Cir. 2011)
(quoting Gall, 552 U.S. at 51). Therefore, it is an "unusual case when we reverse a
district court sentence—whether within, above, or below the applicable Guidelines
range—as substantively unreasonable." United States v. Feemster, 572 F.3d 455, 464
(8th Cir. 2009) (en banc) (quoting United States v. Gardellini, 545 F.3d 1089, 1090
(D.C. Cir. 2008)).
We believe the district court reasonably weighed James's history and mental
diagnoses, including any mitigating factors. Considering the "totality of the
circumstances," Feemster, 572 F.3d at 461, the district court justified a lifetime term
of supervised release. While James has only been convicted of one sex offense,
James's inveterate sexual deviance illustrates why criminal history may inadequately
capture the gravity of a defendant's actions. James's sexual psychopathy was not a
passing personality querk that temporarily manifested itself in 1979. Rather, James's
sexual deviance goes back to his teenage years when he sexually abused a young girl.
This deviance continued in his twenties when he abused another young girl; in his
thirties when he abused his own children, nephews, and others; and in his forties
when he engaged in a sexual relationship with a mentally handicapped woman.
Further, the court noted that James's recovery from his mental diagnoses is at best
questionable. James has never completed any mental-health or sex-offender treatment
program. The potential dormancy of James's untreated conditions, taken together with
James's past conduct, provide sufficient basis for affirming the district court's exercise
of discretion in varying upward in the term of supervised release.
B. Imposition of Special Conditions
Next, James argues that the district court erroneously imposed nearly every
special condition of supervised release. As a general matter, district courts enjoy
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"wide discretion when imposing terms of supervised release." United States v. Smart,
472 F.3d 556, 557 (8th Cir. 2006) (quotation omitted). This discretion, however, is
not unlimited. Release conditions must "(1) [be] reasonably related to the pertinent
§ 3553(a) sentencing factors, (2) involve[ ] no greater deprivation of liberty than
reasonably necessary for the purposes set forth in § 3553(a), and (3) [be] consistent
with any pertinent policy statements issued by the United States Sentencing
Commission." United States v. Johnson, 773 F.3d 905, 907–08 (8th Cir. 2014)
(alterations in original) (quotation and citation omitted); 18 U.S.C. § 3583(d). In
order to fulfill these statutory requirements, sentencing courts must make
particularized findings to ensure that special conditions are imposed on an
individualized basis. United States v. Curry, 627 F.3d 312, 315 (8th Cir. 2010) (per
curiam) (citing United States v. Bender, 566 F.3d 748, 752 (8th Cir. 2009)), vacated
on other grounds, Curry v. United States, 132 S. Ct. 1533 (2012).
First, we address Special Condition 6, which states that "[t]he defendant shall
have no access to the internet, or any device capable of accessing the internet to
include a computer and/or cell phone without the permission of the probation officer."
There is no evidence in the PSR or any other source in the record of James ever using
the internet, much less using the internet for unlawful purposes. See United States v.
Springston, 650 F.3d 1153, 1156 (8th Cir. 2011) (vacating a restriction on internet
access because "[t]he record . . . is devoid of evidence that [the defendant] has ever
used a computer for any purpose") vacated on other grounds, Springston v. United
States, 132 S. Ct. 1905 (2012); United States v. Crume, 422 F.3d 728, 733 (8th Cir.
2005) (vacating a restriction on computer use and internet access because "the record
is devoid of evidence that [the defendant] has ever used his computer for anything
beyond simply possessing child pornography"). The government concedes that this
special condition should be vacated, and we agree.
Second, James challenges Special Condition 1 in its entirety because the court
failed to make an individualized finding justifying this deprivation of liberty. Special
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Condition 1 requires James to submit to reasonable searches of his person and his
property upon suspicion that he has violated a condition of supervised release.
Because this argument was not raised before the district court, we review for plain
error. See United States v. Durham, 618 F.3d 921, 935 (8th Cir. 2010). "Plain error
occurs if the district court errs, the error is clear under current law, and the error
affects the defendant's substantial rights." United States v. Kreitinger, 576 F.3d 500,
505 (8th Cir. 2009). Section 3583(d) addresses this very condition when it gives
courts the discretion to impose,
as an explicit condition of supervised release for a person who is a felon
and required to register under [SORNA], that the person submit his
person, and any property, house, residence, [or] vehicle . . . to search at
any time . . . by any law enforcement or probation officer with
reasonable suspicion concerning a violation of a condition of supervised
release or unlawful conduct by the person.
Special Condition 1 is expressly allowed by § 3583(d) because James is an individual
required to register under SORNA. Thus, the district court did not commit plain error
by imposing the special condition on James.
James also challenges Special Condition 2's requirement that he participate in
evaluation, treatment, counseling, or testing for substance abuse. The PSR indicates
that James started drinking at age seven and drank heavily in the past. Also, he was
diagnosed with severe alcohol dependency during his stay at the psychiatric hospital.
The hospital also found a link between James's alcohol consumption and his
predatory personality. Additionally, James regularly used methamphetamine, LSD,
and marijuana. Nevertheless, James contends that he has not used drugs in over 20
years, and as a result, the Special Condition is not reasonably related to § 3553(a).
James also contends that the court failed to make individualized findings to impose
the condition. We disagree. James has admitted that his sexual abuse of children was
related to alcohol abuse. Further, the court made particularized findings when it
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referenced James's diagnosis of alcohol addiction more than once when considering
James's sentence. Given the district court's findings and the undisputed information
in the PSR, we find that Special Condition 2's requirement to submit to substance
abuse examination and treatment is reasonably related to § 3553(a) factors such as
protecting the public and providing James with needed medical care and correctional
treatment.
Next, James challenges Special Condition 3's requirement that he participate
in a mental-health and/or sex-offender treatment program. Despite his history, James
has never completed a sex offender treatment program and has never otherwise
addressed his mental health diagnoses. "In order to impose a condition of
participation in mental health treatment, the district court must have reason to believe
the defendant needs such treatment." United States v. Wiedower, 634 F.3d 490, 494
(8th Cir. 2011) (quotation and citation omitted). Thus, James argues that this special
condition is not reasonably related to the goals stated in § 3553(a) because he has not
shown indications of recidivism in over 35 years since 1979. James cites United
States v. Scott to illustrate this point. 270 F.3d 632, 635 (8th Cir. 2001). In Scott, the
defendant was convicted of armed bank robbery. Id. at 633. The district court
imposed special conditions tailored to sex offenders "not because of Scott's offense
of conviction . . . , nor because of the conduct that led to revocation of either of his
terms of supervised release, but because of an unrelated 1986 sex-offense conviction.
In our view, this was an abuse of discretion." Id. First, the court noted that the special
conditions did not meet the statutory requirements because they "bear no reasonable
relationship to the nature of the convicted offense." Id. at 636. Second, the court
"[a]dditionally" noted that the age of the 15-year-old offense coupled with a lack of
evidence that the defendant "repeated this behavior in any way since his 1986
conviction" was another reason "the special conditions seem unlikely to serve the
goals of deterrence or public safety, since the behavior on which the special
conditions are based . . . has ceased." Id.-11-
James's case is readily distinguishable from Scott. First, the facts accepted by
the district court included James's sexual deviancy spanning three decades and over
ten victims. This history suggests that recidivism remains a substantial risk for James.
See Smart, 472 F.3d at 599 (the defendant showed a tendency for recidivism because
of a history of sexual deviance). Also, nearly ten years of James's purported 35 years
of good behavior was spent in prison or in a psychiatric hospital. Given James's battle
with sexual deviance for the majority of his life and his failure to complete any
treatment addressing this issue, the district court did not abuse its discretion. Thus,
we find the district court's requirement that James complete a mental-health and/or
sex-offender treatment program is reasonably related to § 3553(a) factors such as
protecting the public and providing James with needed medical care and correctional
treatment.
Last, James challenges Special Condition 5 in its entirety. This condition
precludes James from having contact with minors and restricts him from entering
places where minors are known to be present and regularly congregate. James argues
this special condition is unnecessary because he has not shown any signs of
recidivism that would justify restricting his contact with children. At the sentencing
hearing, James asked the district court to amend the special condition to make
allowance for visiting his grandchildren when other adults were in the house, but the
district court denied this request. On this record, James's behavioral history justifies
the district court's imposition of this release condition. This condition is not based
only on James's 35-year-old sex offense and other alleged acts of sexual deviance
committed 20 years ago. See Scott, 270 F.3d at 635 (finding that a 15-year-old sex
offense was too remote). James's mental diagnoses and his failure to address such
diagnoses justify measures such as Special Condition 5 for the protection of minors.
Therefore, the district court did not err in imposing Special Condition 5.
C. Written Special Conditions Broader Than the Oral Sentence
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James last argues that the district court's written judgments conflict with the
special conditions the court pronounced from the bench. "'Where an oral sentence and
the written judgment conflict, the oral sentence controls.'" Durham, 618 F.3d at 934(quoting United States v. Foster, 514 F.3d 821, 825 (8th Cir. 2008)). James contends
that several of the written special conditions conflict with the oral sentence.
In United States v. Brave, we addressed a release condition in which the district
court pronounced that "you shall not reside with any child under the age of 18, that
would include your children" and "[y]ou shall have no correspondence, telephone
contact, or communication with the victim through a third party unless approved in
advance by the probation officer." 642 F.3d 625, 627 (8th Cir. 2011). The written
judgment, however, stated "[t]he defendant shall not reside with any child under the
age of 18 or contact her children in any manner unless approved in advance and in
writing by the probation officer." Id. (emphasis added). We found that the written
judgment was broader than the oral sentence because the former precluded any
contact with the defendant's children, whereas the oral sentence only precluded the
defendant from living with her children and having contact with the victim, who was
one of her children. Thus, we vacated the phrase "or contact her children in any
manner" from the written special condition. Id. We also addressed this issue briefly
in Durham when a written special condition added the phrase "internet-connected
computer or other device with internet capabilities" to the oral sentence of an internet
restriction condition of release. 618 F.3d at 945. Originally, the oral sentence only
restricted internet access and did not specify any restrictions on devices. Id.Accordingly, we vacated the added phrase "because it broadens the restriction." Id.First, James challenges Special Condition 1, which states in pertinent part that
"[t]he defendant shall submit his person, residence, and/or vehicle(s) to searches
which may be conducted at the request of the United States Probation Officer at a
reasonable time, and in a reasonable manner, based upon reasonable suspicion of a
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violation of any conditions of release." (Emphasis added.) The oral pronouncement,
however, stated that James must "[s]ubmit [him]self, [his] residence, [his] vehicle, to
any and all searches by the probation office upon a reasonable suspicion of
contraband." As the government concedes, the emphasized language in the written
condition broadens the deprivation of liberty because the reasonableness of the search
was expanded to include a violation of any condition of release, as opposed to the
more narrow suspicion of contraband. We, therefore, vacate the emphasized language
and remand to the district court to harmonize the written condition with the oral
sentence.
Second, James challenges Special Condition 2, which states that "[t]he
defendant shall comply with any referral deemed appropriate by the probation officer
for in-patient or out-patient evaluation, treatment, counseling, or testing for substance
abuse and mental health issues." The oral sentence only stated that James would have
to "[s]ubmit to in and out patient counseling for sex abuse, and counseling when and
to the extent necessary." In an earlier explanation, the court stated James would be
required to "[p]articipate in in or out patient counseling for sexual abuse, or any other
health issues."3 While we caution district courts from being loose with oral sentences,
we find that the oral judgment does not materially contradict Special Condition 2.
From the bench, the court referenced that James would have to participate in and
submit to counseling for health issues. This reasonably includes undergoing ordered
evaluations, treatments, counseling and testing for health issues such as mental health
and substance abuse. Special Condition 2 is upheld.
Third, James challenges Special Condition 3, which states that James shall
"participate in a mental health and/or sex offender treatment program, as directed by
3
James concedes that the court likely misspoke when requiring him to attend
"counseling for sex abuse," which is geared towards victims of sex crimes. It is clear
from the context that the court meant to reference sex-offender treatment.
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the probation officer. The defendant shall abide by all program rules, requirements,
and conditions of the sex offender treatment program, including submission to
polygraph testing, to determine if he is in compliance with the conditions of release."
(Emphasis added.) There is some overlap with the oral sentence and explanation
mentioned for Special Condition 2. The oral sentence to "[s]ubmit to in and out
patient counseling for sex abuse, and counseling when and to the extent necessary"
was clearly meant to reference the sex-offender treatment in the written Special
Condition 3. Further, the "health issues" referenced in the court's oral explanation
covers the "mental health" program contemplated in Special Condition 3. Polygraph
testing, however, expands the burden on James and must be vacated from the special
condition.
Fourth, James challenges Special Condition 5, which states that James will
"have no direct contact with minors (under the age of 18) without the approval of the
probation officer. The defendant shall refrain from entering into any area where
children frequently congregate including, but not limited to, schools, daycare centers,
theme parks and playgrounds." (Emphasis added.) The oral sentence only states that
James will "[h]ave no contact with underage children, unless [he has] the permission
of the probation office." The emphasized language appears nowhere in the oral
sentence, and substantially broadens the special condition by prohibiting James's
geographical movements. While such a special condition may be appropriate in sex-
offender cases, we must vacate the emphasized language and remand to the district
court to harmonize the written condition with the oral pronouncement.
III. Conclusion
For the reasons stated herein, we affirm James's lifetime term of supervised
release and the imposition of Special Conditions 1, 2, 3, and 5. We vacate the district
court's imposition of Special Condition 6, and remand to the district court to amend
the written judgment to harmonize the terms of its oral sentence and the written
conditions.
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