United States v. Mark Russell ( 2022 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 8, 2022 Decided August 16, 2022
No. 20-3080
UNITED STATES OF AMERICA,
APPELLEE
v.
MARK WAYNE RUSSELL,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:06-cr-00176-1)
Tony Axam, Jr., Assistant Federal Public Defender, argued
the cause for appellant. With him on the briefs was A.J.
Kramer, Federal Public Defender.
Eric Hansford, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Chrisellen R. Kolb
and Elizabeth H. Danello, Assistant U.S. Attorneys.
Before: ROGERS, WALKER and JACKSON,* Circuit Judges.
*
Circuit Judge, now Justice, Jackson was a member of the panel at
the time the case was argued but did not participate in this opinion.
2
Opinion for the Court filed by Circuit Judge WALKER.
WALKER, Circuit Judge: Mark Russell has been convicted
of two child-sex crimes. First, in 2006, he pleaded guilty in the
United States District Court for the District of Columbia to
Travel with Intent to Engage in Illicit Sexual Conduct under 18
U.S.C. § 2423(b). Then, in 2020, while on supervised release
for that offense, he engaged in similar conduct and was later
convicted in Maryland state court for Sexual Solicitation of a
Minor.
After his second conviction, the United States District
Court revoked Russell’s supervised release for his first
conviction and sentenced him to three years in prison — to run
consecutive to his Maryland sentence — followed by a new
term of supervised release.
This appeal concerns two aspects of Russell’s new term of
supervised release.
First, Russell says that the district court erred when it
required GPS monitoring for the first two years of his new
term. Because that requirement falls within the district court’s
wide discretion to impose conditions on supervised release, we
will not disturb it.
Second, regarding the length of Russell’s new term of
supervised release, Russell sees a contradiction between the
district court’s oral pronouncement and its written judgment.
Because that oral pronouncement was ambiguous, we remand
for clarification.
3
I
Background
In 2006, the police caught Mark Russell in a sting
operation. When Russell traveled across state lines to a
residence in Washington, D.C., where he had arranged to have
sex with a thirteen-year-old girl, the police were waiting. The
“girl” had been an undercover police officer. Russell later
pleaded guilty in the United States District Court for the
District of Columbia to one count of Travel with Intent to
Engage in Illicit Sexual Conduct under 18 U.S.C. § 2423(b).1
The district court sentenced Russell to three years and ten
months in prison. It also imposed a thirty-year term of
supervised release. As a mandatory condition of his supervised
release, Russell was required not to commit another crime.
In 2020, while on supervised release, Russell was arrested
and convicted in Maryland state court for Sexual Solicitation
of a Minor.
That led the United States District Court to revoke
Russell’s supervised release for his 2006 conviction. It
sentenced him to three years in prison, to run consecutive to his
Maryland sentence, followed by a new term of supervised
release. It said, “I will place him on supervised release for a
1
“Travel With Intent To Engage in Illicit Sexual Conduct.—A
person who travels in interstate commerce or travels into the United
States, or a United States citizen or an alien admitted for permanent
residence in the United States who travels in foreign commerce, with
a motivating purpose of engaging in any illicit sexual conduct with
another person shall be fined under this title or imprisoned not more
than 30 years, or both.” 18 U.S.C. § 2423(b).
4
period of 30 years. Obviously he’s given credit for the time
he’s already been on supervised release.” A 38:10-12.
The district court put mandatory, standard, and special
conditions on Russell’s new term of supervised release.
Russell will be required to stay registered as a sex offender and
submit to polygraphs. He will also need to obtain authorization
before contacting minors, using a computer, selecting a
residence, or traveling outside his judicial district.
In addition, over Russell’s objection, the district court
required GPS location monitoring for the first two years of his
supervised release. That means Russell will wear an electronic
ankle bracelet twenty-four hours a day.
In overruling Russell’s objection, the district court
connected the monitoring of Russell’s travel to the travel that
had facilitated his previous crimes: “So obviously there’s
movement on his part for the purpose of engaging in this type
of reprehensible behavior.” A 44:15-16 (emphasis added). It
noted the limits of the monitoring’s restriction on his liberty:
“as long as he’s having interaction with adults there’s no
prohibition or no restriction on his movement.” A 44:21-23.
And it explained why this restriction on his liberty was
necessary: “probation and the Court need[] to know what his
movement is in order to ensure to the best of our capability
since no one can be with him physically 24/7 that he’s not
potentially putting children at risk.” A 45:2-5.
Later, the court issued its written judgment. For the term
of supervised release, the judgment says “THIRTY (30)
YEARS.” A 22.
Russell now appeals. He argues that the district court erred
when it made GPS monitoring a condition of his supervised
5
release. He also asks us to order the district court to align the
term of supervised release in its written judgment (thirty years)
with the term that Russell believes the district court
pronounced at his revocation hearing.
II
GPS Location Monitoring
Congress requires that a condition of supervised release be
“reasonably related to the” nature and circumstances of the
defendant’s offense, his characteristics and history, the need to
deter criminal conduct and protect the public, and the needed
correctional treatment. 18 U.S.C. § 3583(d)(1). The condition
must also “involve[] no greater deprivation of liberty than is
reasonably necessary” to achieve deterrence, protection, and
correctional treatment. Id. § (d)(2).2
“Sentencing judges, although constrained by these
statutory limits, are nonetheless afforded wide discretion when
imposing terms and conditions of supervised release, and we
review the imposition of supervised release conditions only for
abuse of that discretion.” United States v. Legg, 713 F.3d 1129,
1131 (D.C. Cir. 2013) (cleaned up).
A
Reasonably Related
For four reasons, GPS monitoring is “reasonably related
to” Russell’s offense, his characteristics and history,
2
In addition, Congress requires a condition of supervised release to
be “consistent with any pertinent policy statements issued by the
Sentencing Commission.” Id. § (d)(3). But in this case, Russell does
not argue that his supervised release is inconsistent with those policy
statements, so we do not discuss that statutory requirement.
6
deterrence, protection of the public, and correctional treatment.
18 U.S.C. § 3583(d)(1).
First, GPS monitoring is related to enforcing other
conditions of Russell’s supervised release — which are
themselves related to the § 3583(d)(1) factors. Those
conditions require him to obtain authorization before he can
travel outside his judicial district, contact minors, or use a
computer. By monitoring his movement, his probation officer
will know if he is in another district, is hanging around a
playground, or is visiting an internet café — to give just three
of many possible destinations that would raise red flags.
Second, GPS monitoring is directly related to deterring
Russell and protecting the public. As explained above, it will
detect unauthorized travel and other activities that endanger
children. Equally important, it will discourage recidivism
because Russell can expect to be incriminated with
“incontestable evidence that he was at the place where and at
the time when a sexual offense was reported to have occurred”
if he sexually abuses a child who reports his crime. Belleau v.
Wall, 811 F.3d 929, 938 (7th Cir. 2016).
True, GPS monitoring will not provide the public with
perfect protection. But perfection is not the standard. Just as a
prohibition against a drug-dealer’s return to his old selling site
is reasonably related to deterring him from selling more drugs
(even if it does not stop him from finding new places to sell
drugs) so too is GPS monitoring reasonably related to deterring
Russell from traveling again to meet children for sex (even if it
does not stop him from finding new ways to prey on children).
See United States v. Hunt, 843 F.3d 1022, 1030-32 (D.C. Cir.
2016) (affirming a prohibition on a drug-dealer visiting the
location of his past drug-dealing).
7
Third, unlike monitoring the travel of many other
individuals on supervised release, GPS monitoring of Russell’s
travel is related to a jurisdictional component — travel — of
Russell’s underlying offense, “Travel With Intent To Engage
in Illicit Sexual Conduct.” 18 U.S.C. § 2423(b). Indeed, there
are few underlying offenses for which GPS monitoring could
be more closely related. If Russell had not engaged in interstate
travel — travel that will now be monitored through GPS — he
would not have been guilty of his underlying offense.
Fourth and finally, GPS monitoring is also related to
Russell’s later child-sex crime in Maryland. Although travel
was not a jurisdictional component there, Russell’s crime
would have been impossible without it. That is precisely what
the district court identified when it imposed a condition of GPS
monitoring: “So obviously there’s movement on his part for the
purpose of engaging in this type of reprehensible behavior.
And again, I think under the circumstances probation needs to
know what his whereabouts are.” A 44:15-18 (emphasis
added).
B
No Greater Deprivation of Liberty Than Is Reasonably
Necessary
GPS monitoring is not a “greater deprivation of liberty
than is reasonably necessary” to deter Russell, protect the
public, and provide Russell correctional treatment. 18 U.S.C.
§ 3583(d)(2).
Consider first that, as the district court said, GPS
monitoring imposes “no prohibition or no restriction on his
movement” when Russell is “having interaction with adults.”
A 44:21-23. To be sure, wearing an ankle bracelet is
sometimes uncomfortable and inconvenient. And the Supreme
8
Court has held that GPS monitoring can be an intrusion into the
privacy of ordinary citizens. See Carpenter v. United States,
138 S. Ct. 2206, 2217 (2018); United States v. Jones, 565 U.S.
400, 404 (2012). But Russell does not have a typical
“expectation of privacy that society would recognize as
legitimate.” Samson v. California, 547 U.S. 843, 852 (2006).
Instead, “persons subject to supervised release have
significantly diminished expectations of privacy.” United
States v. Lambus, 897 F.3d 368, 402 (2d Cir. 2018) (cleaned
up). Russell must, for example, allow warrantless searches of
his home and other property in certain circumstances. He
makes no objection here to those searches — or to other
conditions of his supervised release that limit his liberty to
travel, use a computer, own a gun, contact children, reside
where he wishes, or refuse a polygraph.
Now consider the significant deterrent effects of
monitoring Russell’s travel. As explained above, GPS
monitoring can deter criminal conduct by making a defendant
“aware that he is being monitored and is likely therefore to be
apprehended should a sex crime be reported at a time, and a
location, at which he is present.” Belleau, 811 F.3d at 935.
Next consider the vital importance of protecting children
from sexual predators. As the district court said, conduct like
Russell’s “destroys children’s lives.” A 36:15; see also United
States v. Russell, 600 F.3d 631, 637 (D.C. Cir. 2010) (“Had the
‘child’ been an actual minor and had Russell proceeded to have
sex with her, the harm would have been great.”).
Finally, consider the odds that Russell will sexually abuse
children if he is not closely supervised. In this case’s
underlying offense, he arrived with two condoms at what he
believed was the home of a thirteen-year-old girl, after sending
her a real-time video of himself masturbating and then telling
9
her that he would wear the condoms so she would not get
pregnant. A 12-13. And after serving his sentence for that
crime — despite being “under extensive monitoring,” though
notably not under GPS monitoring — Russell did it all over
again. A 32:7-8.
Based on those considerations, we hold that the district
court did not abuse its wide discretion when it concluded that
two years of GPS monitoring was “reasonably necessary.” 18
U.S.C. § 3583(d)(2). GPS monitoring’s potential to protect
children — from a serial child-sex predator who will otherwise
be better able to sexually assault children — outweighs the
effect of that monitoring on Russell’s liberty. See United States
v. Malenya, 736 F.3d 554, 559 (D.C. Cir. 2013) (we “weigh the
consequences for the defendant’s liberty against any likely
achievement of the statutory purposes”).
To hold otherwise would make this Court an outlier, as
appellate courts have repeatedly affirmed decisions to
condition a child-sex offender’s supervised release on GPS
monitoring. And they have done so even when the need to
track travel is less obvious than here. Unlike Russell’s
underlying offense — Travel with Intent to Engage in Illicit
Sexual Conduct — other child-sex crimes such as possession
of child pornography do not require perpetrators to leave their
homes; nevertheless, GPS or location monitoring can be a
condition of supervised release for those convicted of such
crimes. See, e.g., United States v. Musso, 643 F.3d 566, 569-
70 (7th Cir. 2011); United States v. Johnson, 773 F.3d 905 (8th
Cir. 2014); United States v. Brown, 821 F. App’x 902 (9th Cir.
2020). And even outside the context of child-sex crimes,
“[c]ourts routinely rely on GPS technology to supervise
individuals on probation or supervised release.” United States
v. Brooks, 715 F.3d 1069, 1078 (8th Cir. 2013).
10
III
Term of Supervised Release
At Russell’s revocation hearing, the district court said, “I
will place him on supervised release for a period of 30 years.”
A 38:10-11. It then added, seemingly as an aside, “Obviously
he’s given credit for the time he’s already been on supervised
release.” A 38:11-12. Then, the district court issued a written
judgment providing that Russell’s term of supervised release is
“THIRTY (30) YEARS.” A 22.
Because the district court’s oral pronouncement of a
sentence controls over a written judgment, and because the
district court’s aside at the revocation hearing created
ambiguity about the length of Russell’s new term of supervised
release, we remand for the district court to clarify it. See
Kennedy v. Reid, 249 F.2d 492, 495 (D.C. Cir. 1957) (a district
court’s oral “pronouncement of sentence constitutes the
judgment of the court”); United States v. Booker, 436 F.3d 238,
245 (D.C. Cir. 2006) (a written judgment cannot change the
previously pronounced sentence).
Russell asks for more. He wants us to order a sentence of
less than thirty years by discerning an intention of the district
court to award Russell a time-served credit for his earlier years
on supervised release. But when the district court said that
“[o]bviously he’s given credit for the time he’s already been on
supervised release,” the court did not explain what authority
“[o]bviously” guarantees it. A 38:11-12. Nor has Russell
demonstrated that crediting him for time served is
“[o]bvious[]” or even common. Indeed — though we need not
decide the question today — it is possible that Congress
11
prohibits crediting a defendant’s previous time on supervised
release toward a new term of supervised release.3
In light of that context, we cannot be certain that the
district court — in its oral pronouncement — intended to credit
Russell’s first term of supervised release toward his new term.
Nor is it clear that the district court’s written judgment
contradicted, rather than clarified, its ambiguous oral
pronouncement. Cf. United States v. Love, 593 F.3d 1, 9 (D.C.
Cir. 2010) (a written judgment can “clarif[y]—rather than
contradict[]—the oral pronouncement of the sentence”).
Rather than accepting Russell’s invitation for us to divine
the intent of the district court — and discover a contradiction
between its oral pronouncement and written judgment where
none may exist — we will remand for clarification.
3
See 18 U.S.C. § 3583(h) (“When a term of supervised release is
revoked and the defendant is required to serve a term of
imprisonment, the court may include a requirement that the
defendant be placed on a term of supervised release after
imprisonment. The length of such a term of supervised release shall
not exceed the term of supervised release authorized by statute for
the offense that resulted in the original term of supervised release,
less any term of imprisonment that was imposed upon revocation of
supervised release.”); United States v. Pla, 345 F.3d 1312, 1314
(11th Cir. 2003) (“[B]y explicitly stating that credit shall only be
given for time served in prison post revocation, congressional intent
was to foreclose any other type of credit. This silence is also
consistent with subsection (e)(3), which also forecloses credit for
time previously served on supervised release. This decision is
consistent with our sister circuits.” (citing United States v. Pettus,
303 F.3d 480, 484-85 (2d Cir. 2002); United States v. Cade, 236 F.3d
463, 467 (9th Cir. 2000)); cf. 18 U.S.C. § 3583(e)(3).
12
* * *
We affirm the district court’s decision to require GPS
monitoring for the first two years of Russell’s new term of
supervised release, and we remand for the district court to
clarify the length of that term.
So ordered.