United States v. McCullock

United States Court of Appeals
For the First Circuit
No. 20-1234
UNITED STATES OF AMERICA,
Appellee,
v.
ROBERT McCULLOCK,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Lynch, Lipez, and Thompson,
Circuit Judges.
Brendan Kelley, Assistant Federal Public Defender, for
appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Andrew E. Lelling, United States Attorney, was on brief, for
appellee.
March 18, 2021
THOMPSON, Circuit Judge. We affirm the district judge's
imposition of three special conditions of supervised release. The
how, what, and why behind our decision follows.
How the Case Got Here1
Robert McCullock has spent much of his life on the wrong
side of the law. And his rap sheet is quite disturbing, to say
the least.
First there is his state conviction for two counts of
child molestation: In separate incidents in 1999 and 2000,
McCullock sexually abused five- and nine-year-old girls in
Georgia. And the three-year-old brother of the five-year-old girl
witnessed his sister's molestation. McCullock admitted both
offenses, going so far as to reveal that he had tried to (but could
not) put his penis in the five-year-old girl's vagina. He ended
up with an eight-year prison sentence in 2002.
Then there is his federal conviction for using a computer
to send child pornography: In 2001, while on bond during the
pendency of the molestation case, McCullock participated in a
child-porn file-sharing service. German police downloaded three
child-porn images from his computer located in the United States
(two of the images showed adult men raping girls as young as six).
1 The major background events are undisputed.
- 2 -
And Georgia police discovered hundreds of kiddie-porn images — and
thousands of erased images — on a computer he had pawned. During
his presentence interview in that case, he told authorities that
he watched child pornography on his computer to lessen his desire
to abuse children and that he "felt he had no cravings for children
anymore at that point" when "he sold his computer" (these are not
direct quotes from McCullock but rather probation's summary of
what he said). After pleading guilty to using a computer to
transport child porn, he got sentenced to ninety-two months in
prison, to run consecutively with the state-prison term, and to
three years of supervised release. His conditions of supervised
release there included bans on committing any state or federal
crime; possessing or viewing sexual materials depicting children
or adults; having any contact with minors unless accompanied by an
adult who is approved by probation and who knows of his child-sex-
abuse history; and using or possessing a computer with internet
access without probation's prior say-so.
And finally there is his state conviction for indecent
assault and battery on a person over the age of fourteen: In 2017,
while on supervised release for the child-porn offense, McCullock
(according to a report by police in Massachusetts) tried to rape
his then-girlfriend. During the violent encounter, he (according
to her) said that "he was going to rape her" and that she had to
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"'suck[]' and 'fuck him'" — and then he "threw [her] pants across
the room and threw [her] on the bed numerous times." Charged with
"assault to rape," he later pled down to the just-mentioned
indecent-assault-and-battery offense. This time he got two years
in prison.
McCullock's last run-in with the law resulted in the
revocation of his supervised release — the revocation occurred
after his stint in state prison for what he had done to his onetime-
girlfriend and after his civil commitment as a sexual predator.
We will have more to say about the revocation later. But for now
it is enough to note that following a hearing, a district judge
sentenced him to six months in prison plus thirty months (or 2½
years) of supervised release, and imposed a series of special post-
release conditions suggested by probation in its violation report.
Three are relevant here.
Special condition 6 says that McCullock "shall not
possess, access, subscribe, or view any videos, magazines,
literature, or Internet websites depicting children or adults in
the nude and/or engaged in sexual activities." Special condition
9 provides that McCullock "must not possess or use any computer or
internet-capable device without prior approval from the Probation
Office" and adds that "[a]ny such device should not be used to
knowingly access or view sexually explicit materials as defined in
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18 U.S.C. § 2256(2)(A)." And special condition 12 states that
McCullock "must not knowingly have direct contact, or contact
through a 3rd party, with children under the age of 18, unless
previously approved by the Probation Office, or in the presence of
a responsible adult who has been" preapproved "by the Probation
Office, and who is aware of the nature of [McCullock's] background
and current offense."2
Unhappy with these special conditions, McCullock
appeals.3
What McCullock Argues
And Why We Affirm
Reduced to its essence, McCullock argues that the judge
"procedurally" erred by failing to adequately explain the basis
for these special conditions, and then "substantively" erred by
2 We took these quotes from the written judgment, which mimics
language in the violation report. McCullock says that the
"judgment differs from the [judge's] oral pronouncement" at
sentencing "with respect to [special] conditions 6 and 9." But he
makes no claim that the differences are "material," noting instead
that the judge clearly "included the adult content in [his]
prohibitions in both the oral and written conditions." See
generally United States v. Fey, 834 F.3d 1, 6 n.5 (1st Cir. 2016)
(mentioning the general rule that when "the conditions imposed
orally conflict in a material way with the conditions that ended
up on the judgment, the oral conditions control" (quoting United
States v. Santiago, 769 F.3d 1, 10 (1st Cir. 2014)). So we need
say no more on this subject.
3 For anyone wondering: McCullock completed the six-month
prison term and is now on supervised release, subject of course to
the complained-of special conditions.
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making them "overly broad" (we will give more specifics shortly)
— in other words, he challenges these special conditions as
"unreasonable." But like the government, we find his arguments
unconvincing.
Standards of Review
We review preserved challenges to the imposition of
special-supervised-release conditions for abuse of discretion and
unpreserved ones for plain error. See, e.g., United States v.
Vega-Rivera, 866 F.3d 14, 20 (1st Cir. 2017).
The abuse-of-discretion standard is multi-dimensional,
however. Within it, we inspect fact findings for clear error,
legal issues de novo (in nonlegalese, with fresh eyes), and
judgment calls with some deference. See, e.g., United States v.
Hood, 920 F.3d 87, 92-93 (1st Cir. 2019). And we will find an
abuse of discretion only when left with a definite conviction that
"no reasonable person could agree with the judge's decision." See
United States v. Cruz-Ramos, 987 F.3d 27, 41 (1st Cir. 2021)
(internal quotations and citation omitted).
As for plain error, the standard is quite formidable.
The complaining party must show that the judge erred, and glaringly
so (such that the judge should have acted without an objection
from counsel), and that the error affected that party's substantial
rights — typically, because it likely influenced the proceeding's
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outcome. See United States v. Takesian, 945 F.3d 553, 565 (1st
Cir. 2019). And even if he meets those conditions, we will use
our discretion to fix the error only if he also shows that it
"seriously imperil[s]" the judiciary's public reputation. See
id.; see also Cruz-Ramos, 987 F.3d at 39.
Explanation
(The Procedural-Reasonableness Challenges)
We begin with McCullock's procedural-reasonableness
challenges to the sufficiency of the judge's explanation for the
special conditions, starting with conditions 6 and 9 — which (to
borrow McCullock's paraphrase) ban, for 2½ years, "any possession
or access to materials involving adult nudity or sexual activity."4
The parties dispute what standard of review applies to
this aspect of McCullock's procedural-reasonableness claim.
McCullock pushes for abuse of discretion, the government for plain
error. We side with the government.
To save the reader the need to flip back to where we quoted
4
these conditions before: Special condition 6 says that, for 2½
years, McCullock "shall not possess, access, subscribe, or view
any videos, magazines, literature, or Internet websites depicting
children or adults in the nude and/or engaged in sexual activity."
And special condition 9 says that, for 2½ years, he "must not
possess or use any computer or internet-capable device without
prior approval from the Probation Office" and notes that "[a]ny
such device should not be used to knowingly access or view sexually
explicit materials as defined in 18 U.S.C. § 2256(2)(A)."
- 7 -
True, as both sides agree, McCullock objected to special
conditions 6 and 9, telling the judge in his predisposition memo
and at the final revocation hearing that nothing in the record
supported adult-content restrictions. And having read every word
of the hearing transcript, we agree with McCullock that the judge
gave no justifications for their imposition. Nor — as McCullock
also notes, without contradiction from the government — did the
prosecutor or probation give any justifications below.
But the hearing transcript does reveal that McCullock
never objected to the judge's lack of explanation — despite having
the chance to do so. And had he protested, the judge could have
cured any problem then and there — thus avoiding the need for an
appeal. See, e.g., Puckett v. United States, 556 U.S. 129, 134
(2009) (noting that plain-error review "serves to induce the timely
raising of claims and objections, which gives the district court
the opportunity to consider and resolve them"); United States v.
Dominguez Benitez, 542 U.S. 74, 82 (2004) (stating that the plain-
error standard "encourage[s] timely objections and reduce[s]
wasteful reversals by demanding strenuous exertion to get relief
for unpreserved error"); United States v. Correa-Osorio, 784 F.3d
11, 22 (1st Cir. 2015) (explaining that the plain-error test
"deters unsavory sandbagging by lawyers" — "i.e., their keeping
mum about an error, pocketing it for later just in case" things do
- 8 -
not work out in the district court — and "gives judges the chance
to fix" any problem so cases do not needlessly bounce back and
forth between district and circuit courts).
Put bluntly, McCullock's objection to the substantive
constraints imposed by special conditions 6 and 9 does nothing to
preserve a claim that the judge did not sufficiently explain the
reasons for imposing them. See United States v. Hunt, 843 F.3d
1022, 1029 n.2 (D.C. Cir. 2016) (collecting cases from other
circuits). So plain-error review it is.
This hard-to-meet standard puts McCullock in a bind,
however. For even if he has shown error that is plain — after
all, no one "question[s] that a district court is required to
provide a reasoned and case-specific explanation for the sentence
it imposes," see United States v. Gilman, 478 F.3d 440, 446 (1st
Cir. 2007) — he never even tries to carry his burden of showing
both that the error likely changed the case's result and that
enforcing these conditions in these circumstances would seriously
imperil the judiciary's reputation for fairness and integrity.
Which means he has not done enough here to win on plain error.
See Fey, 834 F.3d 1, 7 (1st Cir. 2016); United States v. Mulero-
Díaz, 812 F.3d 92, 96-97 (1st Cir. 2016); see also Cruz-Ramos, 987
F.3d at 44.
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We shift then to McCullock's procedural-reasonableness
challenge to special condition 12 — which (as a matter of helpful
repetition) we note says that, for 2½ years, he
must not knowingly have direct contact . . .
with children under the age of 18, unless
previously approved by the Probation Office,
or in the presence of a responsible adult who
has been approved by the Probation Office, and
who is aware of the nature of [his] background
and current offense.
Despite conceding that he must prove plain error to succeed —
because he neither questioned this condition's relevance below,
nor complained about the judge's missing explanation at sentencing
— he has not shown that applying special condition 12 would
jeopardize his substantial rights and the public's perception of
the fairness and integrity of our criminal-justice system. Which
dashes his plain-error hopes on this issue as well. See Fey, 834
F.3d at 7; Mulero-Díaz, 812 F.3d at 96-97; see also Cruz-Ramos,
987 F.3d at 44.
Looking to turn the tables, McCullock's reply brief
faults the government for not proving with record-based facts that
the judge would unlikely change any of these special conditions on
remand. But it is on McCullock to prove all four plain-error
factors, not on the government to disprove them. See, e.g., United
States v. López, 957 F.3d 302, 310 (1st Cir. 2020). So this
argument does not alter our conclusion.
- 10 -
On to the next set of issues.
Overbroadness
(The Substantive-Reasonableness Challenges)
We now take up McCullock's substantive-reasonableness
attacks on the contested special conditions, leading off with
special conditions 6 and 9 — which (to copy another of McCullock's
sum-ups) disallows "adult pornography and content" for 2½ years.5
As he sees things, "[n]othing in the record" — not his "child
molestation conviction," not his "child pornography conviction,"
and not his "indecent assault and battery conviction" — links
"viewing adult pornography or adult content containing sexually
explicit scenes" to his criminal conduct. And, his argument
continues, because the facts in no way justify these special
conditions, they are too "broad" and "restrictive" to stand.
Reviewing for abuse of discretion, as the parties agree
we should, we keep the following checklist in mind:
5 Here we again quote these special conditions, for the
reader's convenience: Special condition 6 declares that, for 2½
years, McCullock "shall not possess, access, subscribe, or view
any videos, magazines, literature, or Internet websites depicting
children or adults in the nude and/or engaged in sexual activity."
And special condition 9 declares that, for 2½ years, McCullock
"must not possess or use any computer or internet-capable device
without prior approval from the Probation Office" and stresses
that "[a]ny such device should not be used to knowingly access or
view sexually explicit materials as defined in 18 U.S.C.
§ 2256(2)(A)."
- 11 -
• Judges have "significant flexibility" in crafting special
conditions. See United States v. Marino, 833 F.3d 1, 10 (1st
Cir. 2016) (quoting United States v. Garrasteguy, 559 F.3d
34, 41 (1st Cir. 2009)).
• A special condition must be "reasonably related" to certain
factors, including "the nature and circumstances of the
offense and the history and characteristics of the
defendant," see 18 U.S.C. §§ 3583(d)(1), 3553(a)(1) — as well
as three goals of punishment: "deter[ring] and protect[ing]
others and . . . rehabilitat[ing] the defendant," see Marino,
833 F.3d at 10 (citing 18 U.S.C. § 3553(a)(2)(B)-(D). Of
note too is that the special condition must "involve[] no
greater deprivation of liberty than is reasonably necessary"
to accomplish those goals, see 18 U.S.C. § 3583(d)(2), and
"be supported by the record," see Marino, 833 F.3d at 10
(quoting Garrasteguy, 559 F.3d at 42).
• In applying the abuse-of-discretion standard here, we focus
on the "reasonableness" of the judge's judgment, taking into
account the totality of the circumstances and knowing that
"any one of several sentences may be reasonable in a
particular case." See id. (internal quotations and citation
omitted). So, looking to see if the sentence reflects "a
plausible view of the circumstances and culminates in a
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defensible overall result," see id. at 12 (internal
quotations and citations omitted), we will undo "the judge's
sentencing decision only if it falls outside the expansive
boundaries of the entire range of reasonable sentences," see
id. at 10 (internal quotations and citations omitted).
Ultimately, what "separates" a "permissible" condition from
an "impermissible" one "is whether, given the facts," the
"restriction was 'clearly unnecessary.'" United States v.
Santiago, 769 F.3d 1, 9 (1st Cir. 2014) (quoting United States
v. Brown, 235 F.3d 2, 7 (1st Cir. 2000)).
McCullock cites a quintet of First Circuit cases
striking down supervised-release conditions banning the possession
or viewing of adult sex-related materials where the defendant stood
convicted of child-sex or child-porn crimes. See United States
v. Hinkel, 837 F.3d 111, 127 (1st Cir. 2016); United States v.
Gall, 829 F.3d 64, 76-77 (1st Cir. 2016); United States v. Medina,
779 F.3d 55, 61-64 (1st Cir. 2015); United States v. Ramos, 763
F.3d 45, 63-64 n.28 (1st Cir. 2014); United States v. Perazza-
Mercado, 553 F.3d 65, 74-79 (1st Cir. 2009). But his case is very
different from those.
Recall McCullock's convictions for two child-molestation
crimes, one involving his admitted attempt to force his penis into
a five year old's vagina. Recall too his possessing and trading
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child porn on a mind-blowing scale, with at least two images
showing an adult man raping a very young girl. This concatenation
of circumstances justifies an inference — unlike in the quintet of
cases — that porn plays a role in McCullock's sexual misconduct.6
See generally Ramos, 763 F.3d at 64 (indicating that the reasonable
inference only has to be that "a ban on adult pornography" is
"reasonably related to" the offense's "nature and circumstances"
and to the defendant's "history and characteristics"). Now recall
his aiming his violent sexual impulses not only at young girls but
also at an adult woman: the revocation-triggering conduct,
remember, involved his viciously attacking his adult girlfriend,
telling her that "he was going to rape" her and that she had to
"suck[] and fuck him" — just before chucking her pants aside and
tossing her on a bed. And given how his perverse interests extend
beyond young girls and to adult women, one can also reasonably
infer that his porn problem in the child context could spill over
into the adult context. Which means that the conditions here —
unlike in the quintet of cases — draw on this lawbreaker's history
and characteristics, providing case-specific reasons to believe
To the extent the judge did not review the presentence
6
report in the child-porn case — a report included in the parties'
sealed joint appendix, by the way — we simply point out that we
can affirm on any basis supported by the record. See, e.g., United
States v. Etienne, 772 F.3d 907, 923 n.9 (1st Cir. 2006).
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that adult-sexual materials could play a role in his re-offending.
See generally, e.g., Gall, 829 F.3d at 76 (explaining that the
record evidence in Perazza-Mercado and Medina did not "support the
conclusion that pornography had 'contributed to [the defendant's]
offense or would be likely to do so in the future'" (quoting
Perazza-Mercado, 553 F.3d at 66, and Medina, citing 779 F.3d at
57)). At least we cannot say on this record that such a conclusion
amounts to an abuse of discretion, which would require us to hold
that "no reasonable person" could have done what the judge did
here. See, e.g., United States v. Rivera-Carrasquillo, 933 F.3d
33, 44 (1st Cir. 2019), cert. denied, 140 S. Ct. 2691 (2020);
United States v. Maldonado, 708 F.3d 38, 42 (1st Cir. 2013).
McCullock raises several counterarguments, none of which
succeed.
For example, McCullock makes much out of how he pled
guilty to "indecent assault and battery" on his then-girlfriend,
not to the original charge of "assault to rape" her. But he is
still stuck with his threat to "rape" her and his demand that she
"suck[]" and "fuck[]" him, as well as his actions of flinging her
pants across the room and dumping her on the bed. And as to these
threats/demands, he never denies making them, offers no convincing
ground for not crediting them, and gives us no persuasive reason
why we cannot factor them into our analysis.
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McCullock also protests that "no evidence" shows "that
adult pornography or content played any role" in his "background
. . . , much less in or contemporaneous to any criminal offense."
But our decisions have not "forclos[ed] the imposition of"
conditions like the ones here even if "pornography was not involved
in the offense of conviction and there is no documented history of
the defendant viewing such material" — so long as "a reason to
impose" such conditions is "apparent from the record." See
Perazza-Mercado, 553 F.3d at 76. And as we pointed out three
paragraphs ago, the record justifies the conditions' imposition —
which undermines his suggestion that this is all "post hoc
conjecture."
Still searching for a winning argument, McCullock says
that because German authorities downloaded the child porn from his
computer "some 18 months" after his state child-molestation
conviction, one cannot infer that child porn "likely caused the
molestation conduct." But the record offers no support for the
idea that he began his child-porn file-sharing after the
molestation crimes — do not forget, he had hundreds of images of
child-porn on his computer, with thousands of other images erased
from there as well.
The bottom line is that because in this instance we
cannot say that special conditions 6 and 9 were "clearly
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unnecessary," see Santiago, 769 F.3d at 9 (quoting Brown, 235 F.3d
at 7), McCullock's first substantive-unreasonableness challenge
fails.
That leaves us only with McCullock's substantive-
unreasonableness challenge to special condition 12 — which we again
note (one last time) says that, for 2½ years, he
must not knowingly have direct contact . . .
with children under the age of 18, unless
previously approved by the Probation Office,
or in the presence of a responsible adult who
has been approved by the Probation Office, and
who is aware of the nature of [his] background
and current offense.
Conceding that our review is for plain error — which again requires
him "to show error; plainness; an adverse effect on his substantial
rights; and a serious compromise of the fairness, integrity, or
reputation of" the sentencing process, see Cruz-Ramos, 987 F.3d at
44 — he offers many reasons why we should vacate this special
condition. But while we respect his effort, we cannot do what he
asks us to do.
McCullock, for instance, complains that special
condition 12 bans any "incidental" contact with minors even if
"unexpected" or not "purposeful." But the special condition says
(emphasis ours) that he "must not knowingly have direct contact
. . . with children under the age of 18," language that limits the
condition to intentional contacts with minors. Also and
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importantly, the special condition is not a flat ban on knowing
contacts with minors. And we know this because such contacts
simply require preapproval from probation. See United States v.
Cabrera-Rivera, 893 F.3d 14, 26 (1st Cir. 2018) (placing some
weight on the condition's preapproval component); United States v.
Pabon, 819 F.3d 26, 31-32, 35 (1st Cir. 2016) (same, adding that
"associational restrictions" work "to protect the public,
especially children, from the defendant, as well as to promote the
defendant's rehabilitation," and noting that such restrictions
"are usually read to exclude incidental encounters").
Moving on, McCullock objects that special condition 12
does not distinguish between girls and boys. Admittedly, as he
emphasizes, his two molestation crimes involved very young girls.
And, as he also implies, we have no clue on this record if his
stash of child porn had images of boys. But even he concedes that
the record shows that when he tried to sexually penetrate the five-
year-old girl, her three-year-old brother was "present" (to quote
McCullock's brief) — viewing so much that he could tell his mother
what had happened. From all this one could infer that McCullock
either wanted the boy to see the crime or was indifferent to his
seeing it. Which makes the boy another one of McCullock's victims.
McCullock also protests that special condition 12
applies to minors "irrespective of age" and covers contacts with
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"older minors." Again, the molestation crimes and the specific
child-porn images in the record involved prepubescent minors. But
there is no reason to think that his appetite for sexual violence
is limited to that age group. And there is reason to think the
opposite, given his revocation-triggering acts — e.g., his "rape"
threat and demands for sex directed at his then-girlfriend.
Lastly, McCullock stresses that the molestations
occurred about twenty years ago and that he has no child-sex-crime
convictions since then. But he spent the bulk of that intervening
stretch locked up in prison and away from children. So any
suggestion by him that this "time was marked by lawful social
activity" is off base. See Pabon, 819 F.3d at 31.
As for the plain-error standard, knowing that "[t]he
simplest way to decide [an issue] is often the best," see
Stor/Gard, Inc. v. Strathmore Ins. Co., 717 F.3d 242, 248 (1st
Cir. 2013) (quoting Chambers v. Bowersox, 157 F.3d 560, 564 n.4
(8th Cir. 1998)), we jump straight to the plainness prong — which
requires McCullock to show that the judge flouted "controlling
precedent" in imposing special condition 12, see United States v.
Morosco, 822 F.3d 1, 21 (1st Cir. 2016) (quoting Correa-Osorio,
784 F.3d at 22). McCullock does say that the judge "clear[ly] and
obvious[ly] err[ed]" here. But he never convincingly explains how
binding authority makes this so, given the key particulars
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highlighted in the last four paragraphs — that (a) the special
condition is textually limited to intentional contacts with minors
and is not a flat ban because of the probation-preapproval option;
that (b) a boy was a casualty of his horrific conduct; that
(c) there is no clear prepubescent/postpubescent demarcation line
when it comes to his violent-sexual inclinations; and that (d) he
sat in prison for many years between the molestations and the
revocation-triggering behavior. See, e.g., United States v.
López, 957 F.3d 302, 310 (1st Cir. 2020) (stating that the truism
that "[t]he proponent of plain error must carry the burden of
establishing each" facet of the plain-error test).
Perhaps McCullock thinks that his discussion of Fey
fills in the blanks. If so, he is wrong. Fey got convicted under
state law for raping a sixteen-year-old girl in 1999. See Fey,
834 F.3d at 3. He later pled guilty in 2014 to failing to register
as a sex offender under federal law. See id. Applying plain-
error review, we vacated a supervised-release condition barring
"direct" and "indirect" contact with all children. See id. at 3-
6. But unfortunately for McCullock, Fey's case is readily
distinguishable from his. Fey — unlike McCullock — "ha[d] not
committed any sexual or violent crimes in the [roughly fifteen]
intervening years." See id. at 4 (noting that Fey had only failed
to register and violated a condition banning him from living with
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children). Fey's condition — unlike McCullock's — also lacked a
"knowingly" requirement and forbade "indirect contact" (again,
McCullock's forbids him from "knowingly hav[ing] direct contact").
And the government in Fey — unlike the government here — "made no
argument" based on "a danger" to boys. See id. at 5. So Fey does
not help McCullock.
If more were needed, we point out that McCullock is free
to ask the judge to modify the special condition under 18 U.S.C.
§ 3583(e)(2). See, e.g., United States v. Mercado, 777 F.3d 532,
539 (1st Cir. 2015).7
The net result is that because McCullock has failed to
prove the judge plainly erred in imposing special condition 12,
his second substantive-unreasonableness challenge fails too.
Final Words
For the reasons recorded above, we affirm the judgment
entered below.
7 McCullock is right that caselaw says that "[t]o approve
problematic conditions because a judge or a probation officer
might, in her or his discretion, relax them in the future,
undermines the command to sentencing courts to not deprive
offenders of more liberty than is necessary to carry out the goals
of supervised release." See Ramos, 763 F.3d at 61. The difficulty
for him is that his special-condition-12-is-problematic thesis
necessarily depends on his establishing plain error — which he has
not done.
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