United States v. Gerald Bainbridge , 746 F.3d 943 ( 2014 )


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  •                      FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                       No. 13-30017
    Plaintiff-Appellee,
    D.C. No.
    v.                       3:05-cr-00101-EJL-2
    GERALD LYNN BAINBRIDGE,
    Defendant-Appellant.                     OPINION
    Appeal from the United States District Court
    for the District of Idaho
    Edward J. Lodge, District Judge, Presiding
    Argued and Submitted
    December 4, 2013—Seattle, Washington
    Filed March 6, 2014
    Before: Sandra Day O’Connor, Associate Justice (Ret.),*
    and Richard C. Tallman and Carlos T. Bea, Circuit Judges.
    Opinion by Judge Bea
    *
    The Honorable Sandra Day O’Connor, Associate Justice (Ret.) for the
    Supreme Court of the United States, sitting by designation.
    2                UNITED STATES V. BAINBRIDGE
    SUMMARY**
    Criminal Law
    The panel affirmed the district court’s order modifying
    the conditions of the defendant’s supervised release to require
    the defendant, who had completed his prison term for Assault
    with Intent to Kidnap, to undergo a sexual deviancy
    evaluation to determine whether additional supervised release
    conditions were necessary.
    The panel held that a district court can modify a
    defendant’s conditions of supervised release pursuant to
    
    18 U.S.C. § 3583
    (e)(2) even absent a showing of changed
    circumstances, and that the district court did not abuse its
    discretion by requiring a sexual deviancy evaluation for a
    crime that did not constitute a “sex offense.” The panel
    explained that given the nature of the offense admitted to in
    the plea agreement, the district court did not abuse its
    discretion when it concluded that a sexual deviancy
    evaluation was reasonably related to the sentencing purposes
    of deterrence, protection of society, as well as any treatment
    that should be provided to the defendant.
    COUNSEL
    Matthew Campbell, Federal Defenders of Eastern
    Washington & Idaho, Spokane, Washington, for Defendant-
    Appellant.
    **
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    UNITED STATES V. BAINBRIDGE                  3
    Wendy Olson, United States Attorney, Michael Mitchell,
    Assistant United States Attorney, Coeur d’Alene, Idaho;
    Syrena Hargrove, Assistant United States Attorney, Boise,
    Idaho for Plaintiff-Appellee.
    OPINION
    BEA, Circuit Judge:
    This case presents two questions: can a district court
    impose a sexual deviancy evaluation as a condition of
    supervised release when deviant sexual conduct was not an
    element of the underlying crime of conviction? If so, is it
    essential the Government prove a change in circumstances
    since the original supervised release conditions were
    imposed, to justify such an additional condition?
    We hold that in the circumstances of this case, the sexual
    deviancy evaluation can be so imposed, without proof of a
    change in such circumstances.
    Defendant Gerald Lynn Bainbridge (“Bainbridge”)
    pleaded guilty to one count of Assault with Intent to Kidnap.
    The district court sentenced Bainbridge to 97 months in jail,
    followed by three years of supervised release. After
    Bainbridge served his prison term, his Probation Officer
    petitioned the district court to modify the conditions of his
    supervised release. The government then filed a motion to
    require Bainbridge to undergo a sexual deviancy evaluation
    to determine whether the other additional conditions of
    supervised release requested by the Probation Officer were
    necessary. The district court granted the government’s
    motion. Bainbridge appealed, claiming the district court did
    4             UNITED STATES V. BAINBRIDGE
    not have jurisdiction to modify the conditions of his
    supervised release absent a change in circumstances and that,
    assuming the district court had jurisdiction, the modification
    was nonetheless unreasonable. We AFFIRM.
    Background
    On February 21, 2006, Bainbridge pleaded guilty to an
    Information charging him with Assault with Intent to Kidnap.
    In the plea agreement, Bainbridge admitted that he and his
    co-defendant had been driving a motor home in Lapwai,
    Idaho and offered a ride to a disabled female who was
    walking on the side of the road. Bainbridge further admitted
    that after the female entered the motor home, she:
    was shoved onto a bed, her hands were bound
    behind her back with duct tape, . . . [and
    Bainbridge] drove the motor home away. . . .
    [Bainbridge’s co-defendant] repeatedly raped
    [the woman] . . . . [Bainbridge then] pulled the
    motor home over and also engaged in sexual
    acts with her. This included oral/genital,
    genital/genital and anal/genital sexual
    acts. . . . [Bainbridge] takes the position that
    he did not understand it was against her will at
    the time, however, understanding all the facts
    and circumstances, [he] now understands and
    accepts that these sexual acts were done
    without [the victim’s] voluntary consent.
    The government and Bainbridge agreed to a
    recommended sentence of 97 months. On May 8, 2006, the
    district court sentenced Bainbridge to 97 months
    imprisonment followed by three years of supervised release.
    UNITED STATES V. BAINBRIDGE                      5
    The district court also imposed a special condition of
    supervised release: that Bainbridge register as a sex offender.
    The district court stated that it was:
    not going to at this point incorporate any of
    those other sex offender [conditions] that
    would normally be encompassed. If the
    Probation department feels that is something
    that needs to be addressed at a later time, they
    can move the Court for a modification. But at
    this time it is just the sex offender
    [registration] laws that you are going to have
    to comply with.
    After Bainbridge served his prison term and began his
    term of supervised release, Bainbridge’s Probation Officer
    filed a petition with the district court to modify Bainbridge’s
    conditions of supervised release. In particular, the petition
    requested that the district court add the following conditions:
    (1) that Bainbridge “participate . . . in an evaluation for sexual
    deviancy by a qualified mental health professional,” at which
    evaluation Bainbridge “agrees to waive any right to
    confidentiality and allow the treatment provider to supply a
    written report to the United States Probation Office”; (2) that
    Bainbridge “successfully complete any course of treatment
    related to his offense, as directed by the probation officer”;
    (3) that Bainbridge “participate in polygraph testing . . . to
    monitor his compliance with treatment conditions and
    supervised release”; and (4) that Bainbridge minimize his
    contact with minor children. Bainbridge opposed this
    petition, and the government subsequently filed a motion
    requesting that the district court require Bainbridge to
    participate in a sexual deviancy evaluation so that the district
    court “will be in a better position to evaluate whether [the
    6                UNITED STATES V. BAINBRIDGE
    other] additional conditions of supervised release are
    necessary.”
    On January 23, 2013, the district court granted the
    government’s motion for a sexual deviancy evaluation in a
    sealed order.1 United States v. Bainbridge, No. 3:05-CR-
    00101 (D. Idaho Jan. 23, 2013). “Given the nature of the
    underlying facts admitted to in the Plea Agreement,” the
    district court found “it is reasonably related and necessary to
    [the statutory sentencing purposes of deterrence, protection of
    society, and treatment of the defendant] to order [Bainbridge]
    to participate in a sexual deviancy evaluation in order to
    determine whether the proposed modified conditions should
    be imposed in this case.” 
    Id.
     The next day, Bainbridge
    timely filed a notice of appeal.
    Standard of Review
    Whether a district court has authority to modify
    supervised release conditions is a question of law reviewed de
    novo. United States v. Miller, 
    205 F.3d 1098
    , 1100 (9th Cir.
    2000). This court reviews a district court’s imposition of
    particular supervised release conditions for abuse of
    discretion. United States v. Napulou, 
    593 F.3d 1041
    , 1044
    (9th Cir. 2010).
    1
    Because the district court granted the government’s motion in a sealed
    order, this opinion contains only content which has been made public
    through non-sealed documents filed in the district court, or through the
    parties’ non-sealed briefs or excerpts of records on appeal.
    UNITED STATES V. BAINBRIDGE                              7
    Analysis
    A. Jurisdiction to modify the conditions of supervised
    release
    
    18 U.S.C. § 3583
    (e) provides:
    The [sentencing court] may, after considering
    the factors set forth in section 3553(a)(1),
    (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5),
    (a)(6), and (a)(7)2 . . . (2) . . . modify, reduce,
    or enlarge the conditions of supervised
    release, at any time prior to the expiration or
    termination of the term of supervised release,
    pursuant to the provisions of the Federal
    Rules of Criminal Procedure relating to the
    modification of probation and the provisions
    applicable to the initial setting of the terms
    and conditions of post-release supervision[.]
    The applicable Federal Rule of Criminal Procedure, Rule
    32.1(c), provides in part:
    2
    These factors include: (1) “the nature and circumstances of the offense
    and the history and characteristics of the defendant”; (2) “the need for the
    sentence imposed . . . to afford adequate deterrence to criminal conduct”;
    (3) “the need for the sentence imposed . . . to protect the public from
    further crimes of the defendant”; (4) “the need for the sentence imposed
    . . . to provide the defendant with needed educational or vocational
    training, medical care, or other correctional treatment in the most effective
    manner”; (5) “the applicable guidelines or policy statements issued by the
    Sentencing Commission”; (6) “any pertinent policy statement . . . issued
    by the Sentencing Commission”; (7) “the need to avoid unwarranted
    sentence disparities”; and (8) “the need to provide restitution to any
    victims of the offense.” 18 U.S.C.§ 3553(a)(1), (a)(2)(B), (a)(2)(C),
    (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7).
    8              UNITED STATES V. BAINBRIDGE
    Before modifying the conditions of probation
    or supervised release, the court must hold a
    hearing, at which the person has the right to
    counsel and an opportunity to make a
    statement and present any information in
    mitigation.
    Bainbridge argues that absent a “change in
    circumstances,” the district court lacked jurisdiction to
    modify the conditions of his supervised release. To support
    this argument, Bainbridge cites an advisory committee note
    to Rule 32.1, which states that “[p]robation conditions should
    be subject to modification, for the sentencing court must be
    able to respond to changes in the probationer’s circumstances
    as well as new ideas and methods of rehabilitation.” FED. R.
    CRIM. P. 32.1, advisory committee’s note to 1979 addition.
    Bainbridge also cites two Ninth Circuit cases, United States
    v. Gross and United States v. Miller, for the proposition that
    § 3583(e) allows a sentencing court to modify the conditions
    of supervised release in response to a change in a defendant’s
    circumstances. 
    307 F.3d 1043
    , 1044 (9th Cir. 2002);
    
    205 F.3d 1098
    , 1101 (9th Cir. 2000). However, Bainbridge
    goes further and argues that these authorities permit a district
    court to modify a probationer’s conditions of supervised
    release only when (1) there exist “changed circumstances” or
    (2) new ideas and methods of rehabilitation arise. Because
    there have been no changes in Bainbridge’s circumstances
    from his initial sentencing, and because the government does
    not suggest that new ideas and methods of rehabilitation
    motivated the district court’s action, Bainbridge contends that
    the district court did not have jurisdiction to modify the terms
    of his supervised release.
    UNITED STATES V. BAINBRIDGE                   9
    This argument fails because the authorities cited by
    Bainbridge do not limit the district court’s ability to modify
    conditions of supervised release to situations in which there
    is a change in circumstances or where new ideas and methods
    of rehabilitation arise. The advisory committee’s note to FED.
    R. CRIM. P. 32.1 cited by Bainbridge provides no support for
    his argument. First, while an advisory committee’s note is
    given “weight” in interpreting the Federal Rules of Criminal
    Procedure, see United States v. Petri, 
    731 F.3d 833
    , 839 (9th
    Cir. 2013) (stating that “‘the construction given by the
    Committee [in the advisory committee’s notes to the Federal
    Rules of Criminal Procedure] is ‘of weight’” and may be used
    to “clarify any ambiguity”) (quoting Schiavone v. Fortune,
    
    477 U.S. 21
    , 31 (1986)), an advisory committee’s note is not
    part of the Rule itself. See Introductory Statement by
    Advisory Committee on Rules of Criminal Procedure, Notes
    to the Rules of Criminal Procedure for the District Courts of
    the United States, 
    4 F.R.D. 405
     (1944) (“The Notes are not to
    be regarded as a part of the Rules. They have been prepared
    without supervision or revision by the Supreme Court, and
    are not approved or sponsored by the Court. They have no
    official sanction and are intended merely as suggestions and
    guides.”). As a result, an advisory committee’s note does not
    have the force of law. See Moody Nat. Bank of Galveston v.
    GE Life and Annuity Assurance Co., 
    383 F.3d 249
    , 253 (5th
    Cir. 2004) (holding that advisory committee notes to the
    Federal Rules of Appellate Procedure “do not have the force
    of law”); Clark v. Long, 
    255 F.3d 555
    , 559 (8th Cir. 2001)
    (holding the same with respect to the Federal Rules of Civil
    Procedure); United States v. Sandini, 
    816 F.2d 869
    , 875 n.7
    (3d Cir. 1987) (stating the same with respect to the Federal
    Rules of Criminal Procedure). Moreover, Bainbridge does
    not cite any authority for the proposition that an advisory
    committee’s note may be used to read an additional
    10             UNITED STATES V. BAINBRIDGE
    requirement into a Rule. Absent such authority, we decline
    to do so, especially where the Rule itself in no way suggests
    that such a requirement exists. Cf. Tome v. United States,
    
    513 U.S. 150
    , 168 (1995) (Scalia, J., dissenting) (“[T]he
    [advisory committee’s] Notes [to the Federal Rules of
    Evidence] cannot, by some power inherent in the draftsmen,
    change the meaning that the Rules would otherwise bear.”).
    Second, the advisory committee’s note itself, even if it
    had the force of law, does not compel the conclusion that a
    change in circumstances is a necessary, as opposed to a
    sufficient, reason to give a district court authority to modify
    conditions of supervised release. The mention of one
    (changed circumstances) or two (new ideas and methods of
    rehabilitation) situations in which a statute may be invoked
    does not require the interpretation that one or the other are
    essential to permit modification of the conditions of
    supervised release, or are the exclusive bases thereof. In
    particular, the advisory committee’s note to Rule 32.1 is not
    subject to the negative implication canon (expressio unius est
    exclusio alterius) because that canon can be applied “only
    when the unius [changed circumstances or new ideas and
    methods of rehabilitation] . . . can reasonably be thought to be
    an expression of all that shares in the grant [supervised
    release conditions are subject to modification] . . . involved.”
    Justice Antonin Scalia and Bryan A. Garner, Reading Law,
    107 (2012); see also, Chevron U.S.A. Inc. v. Echazabal,
    
    536 U.S. 73
    , 81 (2002) (citing E. Crawford, Construction of
    Statutes 337 (1940) for the proposition that “expressio unius
    properly applies only when in the natural association of ideas
    in the mind of the reader that which is expressed is so set over
    by way of strong contrast to that which is omitted that the
    contrast enforces the affirmative inference”) (internal
    quotation marks omitted).           Nothing in the advisory
    UNITED STATES V. BAINBRIDGE                            11
    committee’s note suggests a limitation on the reasons for
    modification to the two possibilities that the note mentions.
    Therefore, the negative implication canon does not apply
    here. Indeed, the canon is particularly inapplicable here
    because district courts have broad discretion to modify
    conditions of supervised release. See Miller, 
    205 F.3d at 1100
     (stating that “the plain language of [
    18 U.S.C. § 3583
    (e)(2)] indicates that the district courts have broad
    discretion to alter the conditions of a defendant’s supervised
    release”); Gross, 
    307 F.3d at 1044
     (explaining that the district
    court has “broad authority to approve modification of the
    conditions” of supervised release).
    Likewise, both Miller and Gross stand for the proposition
    that a change in circumstances may serve as a sufficient basis
    upon which a district court may modify the conditions of
    supervised release. However, neither Miller nor Gross
    suggest that a change in circumstances is necessary for a
    district court to modify such conditions. See United States v.
    Murray, 
    692 F.3d 273
    , 279 (3d Cir. 2012) (“Neither the Ninth
    [Circuit in United States v. Miller] nor the Second Circuit [in
    United States v. Lussier,3 
    104 F.3d 32
     (2d Cir. 1997)] has
    3
    Contrary to Bainbridge’s assertion, the Second Circuit’s decision in
    United States v. Lussier does not suggest that changed circumstances are
    a prerequisite to modify conditions of supervised release. 
    104 F.3d 32
     (2d
    Cir. 1997). In Lussier, the Second Circuit did not confront the issue
    before this Court: namely, whether changed circumstances are required
    before a district court may modify conditions of supervised release.
    Rather, the Lussier court held simply that “the illegality of a condition of
    supervised release is not a proper ground for modification under
    [
    18 U.S.C. § 3583
    (e)(2)].” 
    Id. at 34
    . The defendant in Lussier was
    convicted in federal court of various banking crimes and was required to
    pay restitution as a condition of his supervised release. 
    Id. at 33
    . He
    appealed his conviction and sentence, but did not challenge the restitution
    order. 
    Id.
     After the Second Circuit affirmed the conviction and sentence,
    12               UNITED STATES V. BAINBRIDGE
    gone so far as to describe a showing of new or unforeseen
    circumstances as necessary or a prerequisite to modification.
    Thus, we might say that these courts have merely described
    conditions that are sufficient, but not necessary, to justify
    modification.”).4
    the defendant filed a motion with the district court to rescind the
    restitution order under 
    18 U.S.C. § 3583
    (e)(2), arguing that the district
    court should modify that condition of his supervised release because it was
    “illegal.” 
    Id.
     The district court “concluded that it lacked the authority
    under subsection 3583(e)(2) . . . to modify the restitution order on the
    ground of illegality.” 
    Id. at 34
    . The Second Circuit affirmed.
    While the Lussier court did broadly discuss the circumstances
    pursuant to § 3583(e)(2) under which modification of supervised release
    conditions is permissible and did state that “new circumstances may arise
    that require a longer term or harsher conditions of supervised release,”
    nothing in that decision supports Bainbridge’s claim that changed
    circumstances are required prior to the modification of supervised release
    conditions. Id. at 36. Indeed, the Lussier court went on to state that the
    district court could not modify the defendant’s conditions of supervised
    release under § 3583(e)(2) because the defendant’s challenge did “not
    involve changed circumstances or affect in any way general punishment
    aims such as deterrence, rehabilitation, and proportionality.” Id. at 36
    (emphasis added). The Lussier court’s use of the disjunctive strongly
    suggests that it believed that changed circumstances were a sufficient, but
    not necessary, justification for modification of the conditions of
    supervised release. It also suggests that “deterrence” and “rehabilitation”
    were separate grounds for modification. Given Bainbridge’s actions as set
    forth in the plea agreement, ante at 4, those grounds would support the
    additional supervised release condition.
    4
    The Murray court also noted that “the statute that permits modification
    of supervised release conditions, 
    18 U.S.C. § 3583
    (e)(2), makes no
    mention of any new or changed circumstances requirement—an omission
    which leads us to doubt that such a requirement exists.” 692 F.3d at 279.
    “Nevertheless,” the court determined that it “need not resolve [any
    apparent] circuit split today” because the government had shown changed
    circumstances. Id.
    UNITED STATES V. BAINBRIDGE                            13
    Rather, the question whether a change in circumstances
    is required for a district court to modify conditions of
    supervised release appears to be an issue of first impression
    in the Ninth Circuit.5 While the Ninth Circuit in Miller stated
    that “the plain language of [
    18 U.S.C. § 3583
    (e)(2)] indicates
    that the district courts have broad discretion to alter the
    conditions of a defendant’s supervised release,” that decision
    did not address whether modification of supervised release
    conditions was permissible absent changed circumstances.
    
    205 F.3d at 1100
    . Still, at least two other Circuits have ruled
    that a change in circumstances is not required for a district
    5
    Contrary to the government’s implication in its Answering Brief, our
    decision in United States v. King did not determine whether a change in
    circumstances is required for a district court to modify conditions of
    supervised release. 
    608 F.3d 1122
     (9th Cir. 2010). King was convicted
    of possessing cocaine with the intent to distribute and sentenced to a
    prison term to be followed by supervised release. 
    Id. at 1124
    . Once King
    finished his prison term and began to serve his term of supervised release,
    King’s probation officer moved the district court to modify King’s
    conditions of supervised release, alleging that King had committed seven
    violations of his initial conditions of supervised release. 
    Id.
     At a
    preliminary revocation hearing, “King’s probation officer asked the
    district court to modify King’s supervised release conditions until the full
    revocation hearing.” 
    Id.
     The district court refashioned the probation
    officer’s suggested temporary modification, and King did not object. 
    Id.
    at 1125–26. On appeal, King argued, inter alia, that “the district court
    violated his due process rights at the initial revocation hearing when it
    modified his supervised release conditions pending the full revocation
    hearing.” 
    Id. at 1130
    . This Court rejected King’s claim, noting first that
    “King did not object to the refashioned condition” at the preliminary
    revocation hearing. 
    Id.
     The panel went on to reject King’s argument
    based on Federal Rule of Criminal Procedure 32.1(c), noting that rule
    “does not require an evidentiary hearing or a violation finding.” 
    Id.
    However, the panel did not address whether 
    18 U.S.C. § 3583
    (e)(2) itself,
    or the advisory committee notes accompanying Rule 32.1(c), required a
    finding of changed circumstances before a district court could modify a
    defendant’s supervised release conditions.
    14               UNITED STATES V. BAINBRIDGE
    court to modify conditions of supervised release: the Eighth
    Circuit in United States v. Davies, 
    380 F.3d 329
     (8th Cir.
    2004); and the Tenth Circuit in United States v. Begay,
    
    631 F.3d 1168
     (10th Cir. 2011).6
    In so ruling, the Begay court emphasized that:
    By its terms, [§ 3583(e)(2)] does not require
    a district court to make particular findings—
    such as a finding of changed circumstances—
    prior to modifying the terms of supervised
    release.      In contrast, subsections (e)(1)
    [termination of supervised release] and (e)(3)
    [revocation of supervised release] do require
    more specific determinations. Pursuant to
    subsection (e)(1), a district court may
    terminate a term of supervised release only “if
    it is satisfied that such action is warranted by
    the conduct of the defendant released and the
    interest of justice. . . .” Pursuant to subsection
    (e)(3), a district court may revoke a term of
    supervised release only “if the court . . . finds
    by a preponderance of the evidence that the
    defendant violated a condition of supervised
    release. . . .”
    
    631 F.3d at
    1171–72. We find this reasoning persuasive and
    agree with the Begay court that a “changed circumstances”
    requirement should not be read into § 3583(e)(2).
    6
    “Absent some good reason to do so, we are disinclined to create a
    direct conflict with another circuit.” United States v. Larm, 
    824 F.2d 780
    ,
    784 (9th Cir. 1987).
    UNITED STATES V. BAINBRIDGE                            15
    Indeed, “[t]he only statutory requirements for
    modification [under § 3583(e)(2)] are that the district court
    consider the listed § 3553(a) factors, follow the procedure
    outlined in FED. R. CRIM. P. 32.1 [which requires a hearing
    and provides for the right to counsel], and ensure that the
    modified conditions are consistent with the requirements
    applicable to all conditions of supervised release.” Id. at
    1172.7 Moreover, § 3583(e)(2) permits a district court to
    modify the conditions of supervised release “at any time prior
    to the expiration or termination of the term of supervised
    release.” 
    18 U.S.C. § 3583
    (e)(2) (emphasis added).
    We therefore agree with the Eighth and Tenth Circuits
    and hold that a district court can modify a defendant’s
    conditions of supervised release pursuant to 
    18 U.S.C. § 3583
    (e)(2) even absent a showing of changed
    circumstances. Although it may be “inefficient to omit
    important conditions and later, upon further reflection,
    petition the court to incorporate such conditions, the relevant
    7
    The Begay court also rejected Begay’s argument that § 3582(e)(2)
    “must be read in light of . . . well-entrenched interests in the finality of
    judgments,” concluding that:
    As regards the imposition of conditions of supervised
    release, it is arguable that a district court is in a more
    informed position to evaluate a defendant’s conditions
    of release immediately prior to a defendant’s release
    rather than at the time of sentencing. . . . A policy
    favoring finality does not require us to read a changed
    circumstances requirement into 
    18 U.S.C. § 3583
    (e)(2).”
    
    631 F.3d at 1173
    . We agree with the Begay court in this respect.
    16               UNITED STATES V. BAINBRIDGE
    statutes and rules do not prohibit such practice.” Davies,
    
    380 F.3d at 332
    .8
    8
    Bainbridge also argues that the law of the case doctrine precludes the
    district court from modifying the terms of his supervised release. While
    the law of the case doctrine does require lower courts to “follow the
    mandate of a higher court after remand on appeal, . . . when the law of the
    case doctrine is applied by a court to its own prior decisions [as
    Bainbridge argues here] . . . the doctrine is properly characterized as
    discretionary in nature.” 18 Moore’s Federal Practice, § 134.21 (3d ed.
    1997). Indeed, this Court has stated:
    the effect of the doctrine is not dispositive, particularly
    when a court is reconsidering its own judgment, for the
    law of the case directs a court’s discretion, it does not
    limit the tribunal’s power. In other words, there is
    nothing in the Constitution of the United States to
    require [invocation of the doctrine], or to prevent a
    [court] from allowing a past action to be modified while
    a case remains in court.
    Gonzalez v. Arizona, 
    624 F.3d 1162
    , 1186 (9th Cir. 2010) (quotation
    marks and citations omitted). Here, when the district court sentenced
    Bainbridge, it stated: “If the Probation department feels that [additional
    conditions are] something that needs to be addressed at a later time, they
    can move the Court for a modification.” In such circumstances, we
    conclude that the law of the case doctrine does not bar the district court
    from reconsidering the conditions of Bainbridge’s supervised release.
    Likewise, Bainbridge’s argument that the government waived its
    ability to request modifications to his supervised release conditions fails
    because he cites no authority on point. Moreover, the plain language of
    
    18 U.S.C. § 3583
    (e)(2) states that a district court may modify . . . the
    conditions of supervised release, at any time prior to the expiration or
    termination of the term of supervised release.” (emphasis added). We
    therefore find that the government did not waive its ability to request a
    modification of the conditions of Bainbridge’s supervised release.
    UNITED STATES V. BAINBRIDGE                         17
    B. The district court’s order modifying the conditions of
    supervised release does not constitute error.
    Bainbridge next argues that the district court abused its
    discretion when it modified the conditions of his supervised
    release. Under 
    18 U.S.C. § 3583
    (e)(2), the district court
    “may modify, reduce, or enlarge the conditions of supervised
    release, at any time prior to the expiration or termination of
    the term of supervised release” provided that the district
    court: (1) “consider[s] the factors in section 3553(a)(1),
    (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and
    (a)(7)”; (2) abides by the provisions of FED. R. CRIM. P.
    32.1(c), which require a hearing and provide for the right to
    counsel; and (3) follows “the provisions applicable to the
    initial setting of the terms and conditions of post-release
    supervision.” 
    18 U.S.C. § 3583
    (e)(2); Begay, 
    631 F.3d at 1171
    . With respect to this last requirement, 
    18 U.S.C. § 3583
    (d), which governs the initial setting of the conditions
    of supervised release, permits such conditions if they: (1) “are
    reasonably related to the factors set forth in section
    3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D)”; 9
    (2) “involve[] no greater deprivation of liberty than is
    reasonably necessary to achieve” the goals of deterrence,
    protection of the public, and defendant rehabilitation; and
    (3) are “consistent with any pertinent policy statements issued
    by the Sentencing Commission.” 
    18 U.S.C. § 3583
    (d);
    United States v. Wolf Child, 
    699 F.3d 1082
    , 1090 (9th Cir.
    2012).
    9
    As noted above, 
    18 U.S.C. § 3583
    (e)(2) requires district courts to
    consider these four factors in addition to four additional factors when
    determining whether to modify conditions of supervised release.
    18                UNITED STATES V. BAINBRIDGE
    A “condition of supervised release does not have to be
    related to the offense of conviction because the sentencing
    judge is statutorily required to look forward in time to crimes
    that may be committed in the future by the convicted
    defendant.” United States v. Blinkinsop, 
    606 F.3d 1110
    , 1119
    (9th Cir. 2010). Moreover, “the district court [generally]10
    need not state at sentencing the reasons for imposing each
    condition of supervised release, if it is apparent from the
    record.” United States v. Becker, 
    682 F.3d 1210
    , 1213 (9th
    Cir. 2012) (citing United States v. Rudd, 
    662 F.3d 1257
    ,
    1261–62 (9th Cir. 2011)) (internal quotation marks omitted).
    The only modification at issue in this appeal is the district
    court’s order that Bainbridge participate in a sexual deviancy
    evaluation “in order for the Court to properly determine
    whether the [additional] proposed conditions are appropriate
    to impose.” Bainbridge, slip op. at 4. Bainbridge argues that,
    assuming the district court had jurisdiction to modify the
    conditions, the modification granted was nonetheless
    unreasonable. However, Bainbridge cites no authority for the
    proposition that the district court abused its discretion by
    ordering the sexual deviancy evaluation. Instead, Bainbridge
    recites the requirements for modifications of supervised
    release terms under 
    18 U.S.C. § 3583
    (e)(2), as discussed
    above, and conclusorily states that:
    10
    As we stated in Wolf Child, “there is an exception [to this general rule]
    for conditions of supervised release that implicate a ‘particularly
    significant liberty interest.’” 699 F.3d at 1090. In such cases, “the district
    court must support its decision to impose the condition on the record with
    record evidence that the condition of supervised release sought to be
    imposed is necessary to accomplish one or more of the factors listed in
    [18 U.S.C.] § 3583(d)(1) and involves no greater deprivation of liberty
    than is reasonably necessary.” Id. (internal quotation marks omitted).
    UNITED STATES V. BAINBRIDGE                   19
    There was no basis for concluding that the
    condition was necessary. Rather, it appears
    that the government was on a fishing
    expedition based on speculation. In other
    words, the government was guessing that
    something might come from the evaluation,
    which would then provide a basis for
    modifying the conditions.
    Bainbridge also argues that:
    The Sentencing Commission’s policy
    statements suggest that a Court consider
    “treatment and monitoring of sex offenders”
    only when “the instant offense of conviction
    is a sex offense.” U.S.S.G. § 5D1.3(d)(7).
    Mr. Bainbridge was in fact convicted of
    assault with intent to kidnap. While the facts
    certainly indicated sexual misconduct, the
    parties elected to proceed on a non-sex
    offense charge, and the District Court elected
    not to apply these conditions at sentencing.
    However, U.S.S.G. § 5D1.3(d) provides that “[t]he following
    ‘special’ conditions of supervised release are recommended
    in the circumstances described and, in addition, may
    otherwise be appropriate in particular cases.” (emphasis
    added). Moreover, as noted above, a “condition of supervised
    release does not have to be related to the offense of
    conviction because the sentencing judge is statutorily
    required to look forward in time to crimes that may be
    committed in the future by the convicted defendant.”
    Blinkinsop, 
    606 F.3d at 1119
    . Therefore, the district court did
    not abuse its discretion merely by requiring a sexual deviancy
    20                UNITED STATES V. BAINBRIDGE
    evaluation for a crime that did not constitute a “sex
    offense.”11
    To the contrary, the record shows that the district court
    properly followed the requirements of 
    18 U.S.C. § 3583
    (e)(2)
    in modifying Bainbridge’s conditions of supervised release to
    include the requirement that Bainbridge submit to a sexual
    deviancy evaluation. In particular, the district court
    considered “the nature and circumstances of the offense”
    (§ 3553(a)(1)), the need for deterrence (§ 3553(a)(2)(B)), the
    need to protect the public (§ 3553(a)(2)(C)), and the need to
    provide the defendant with the most effective treatment
    (§ 3553(a)(2)(D)) when it stated:
    The facts admitted to in the Plea Agreement
    involve the Defendant having engaged in a
    violent assault upon the victim. At the
    11
    In his Reply Brief, Bainbridge argues that “the condition [requiring
    him to undergo a psychosexual evaluation] involves a particularly
    significant liberty interest.” As such, he suggests that the condition should
    be subject to the heightened standard of review required of other
    conditions which affect “significant liberty interests.” However,
    Bainbridge has waived this argument because he did not raise it in his
    Opening Brief. See Greenwood v. FAA, 
    28 F.3d 971
    , 977 (9th Cir. 1994).
    Moreover, the Ninth Circuit has “conclude[d] that Abel testing [a form of
    psychosexual evaluation which involves showing subjects a series of
    slides and monitoring the amount of time they attend to each slide] does
    not implicate a particularly significant liberty interest, and thus does not
    require the district court to make [] heightened findings.” United States
    v. Stoterau, 
    524 F.3d 988
    , 1006 (9th Cir. 2008); see also United States v.
    Daniels, 
    541 F.3d 915
    , 926 (9th Cir. 2008). Because Bainbridge has not
    presented any authority which would compel this Court to determine that
    requiring a sexual deviancy evaluation implicates a “significant liberty
    interest,” and we have likewise found no such authority, we decline to do
    so here.
    UNITED STATES V. BAINBRIDGE                   21
    sentencing the Court recognized several times
    its concern regarding the risk the Defendant
    posed to society given the seriousness of the
    offense. . . . The Court finds such evaluation
    of the Defendant is proper here because such
    a condition is reasonably related, necessary,
    and appropriate to the statutory sentencing
    purposes given the violent sexual abuse that
    occurred in this case. In particular, the
    evaluation is reasonably related to the
    sentencing purposes of deterrence, protection
    of society, as well as any treatment that
    should be provided to the Defendant.
    Bainbridge, slip op. at 4–5 (citations omitted).
    Given the nature of the offense admitted to in the plea
    agreement, the district court did not abuse its discretion when
    it concluded that a sexual deviancy evaluation was
    “reasonably related to the sentencing purposes of deterrence,
    protection of society, as well as any treatment that should be
    provided to the Defendant.” See United States v. Hinkson,
    
    585 F.3d 1247
    , 1251 (9th Cir. 2009). In particular, the sexual
    deviancy evaluation may reveal that certain types of therapy
    or treatment are necessary—and should be required per the
    Probation Officer’s second requested condition of supervised
    release—to prevent future sexual assaults of the kind
    involved in Bainbridge’s crime of conviction. Moreover,
    Bainbridge cites no authority that would suggest that
    requiring a sexual deviancy evaluation in these circumstances
    would involve a “greater deprivation of liberty than is
    reasonably necessary to achieve” those goals. 
    18 U.S.C. § 3583
    (d). Indeed, the district court noted that “in order for
    the Court to properly determine whether the proposed
    22             UNITED STATES V. BAINBRIDGE
    conditions [other than the sexual deviancy evaluation] are
    appropriate to impose in this case, the requested sexual
    evaluation is necessary.” In this way, the district court
    appears to have ordered the sexual deviancy evaluation, in
    part, to protect Bainbridge’s liberty interests by making sure
    that further conditions were necessary before ordering them.
    Finally, Bainbridge does not suggest any pertinent policy
    statements issued by the Sentencing Commission which
    would support his contention that such a sexual deviancy
    evaluation was not warranted in the present circumstances.
    Therefore, the district court did not abuse its discretion
    when it ordered Bainbridge to undergo a sexual deviancy
    evaluation to determine whether additional supervised release
    conditions were necessary.
    Conclusion
    For the foregoing reasons, we conclude that the district
    court had jurisdiction to modify Bainbridge’s conditions of
    supervised release, despite the lack of changed circumstances.
    We also find that the district court did not abuse its discretion
    by requiring Bainbridge to undergo a sexual deviancy
    evaluation as a condition of his supervised release.
    Therefore, we AFFIRM the district court’s order.
    

Document Info

Docket Number: 13-30017

Citation Numbers: 746 F.3d 943, 2014 WL 878832, 2014 U.S. App. LEXIS 4227

Judges: O'Connor, Tallman, Bea

Filed Date: 3/6/2014

Precedential Status: Precedential

Modified Date: 11/5/2024

Authorities (18)

Moody National Bank of Galveston v. Ge Life and Annuity ... , 383 F.3d 249 ( 2004 )

United States v. Bernard Gross , 307 F.3d 1043 ( 2002 )

United States v. Daniels , 541 F.3d 915 ( 2008 )

United States v. Blinkinsop , 606 F.3d 1110 ( 2010 )

United States v. Begay , 631 F.3d 1168 ( 2011 )

Chevron U. S. A. Inc. v. Echazabal , 122 S. Ct. 2045 ( 2002 )

United States v. Stoterau , 524 F.3d 988 ( 2008 )

UNITED STATES OF AMERICA, — v. JOHN A. DAVIES, — , 380 F.3d 329 ( 2004 )

United States v. Roger Lussier , 104 F.3d 32 ( 1997 )

Dwight M. Clark v. Steve Long Gene Stubblefield Larry ... , 255 F.3d 555 ( 2001 )

UNITED STATES of America, Plaintiff-Appellee, v. Peter LARM,... , 824 F.2d 780 ( 1987 )

United States v. Hinkson , 585 F.3d 1247 ( 2009 )

the-united-states-v-hilmer-burdette-sandini-ernest-g-rockwell-george , 816 F.2d 869 ( 1987 )

Ashley Hunt Greenwood v. Federal Aviation Administration , 28 F.3d 971 ( 1994 )

United States v. James A. Miller , 205 F.3d 1098 ( 2000 )

United States v. Napulou , 593 F.3d 1041 ( 2010 )

United States v. Rudd , 662 F.3d 1257 ( 2011 )

United States v. King , 608 F.3d 1122 ( 2010 )

View All Authorities »