United States v. Tom

FILED
United States Court of Appeals
Tenth Circuit
February 29, 2012
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 11-2206
v. (D. New Mexico)
RONALD TOM, (D.C. No. 1:09-CR-03424-JCH-1)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before MURPHY, ANDERSON, and HARTZ, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Defendant and appellant Ronald Tom pled guilty to one count of abusive
sexual contact, in violation of 18 U.S.C. §§ 1153, 2244(a)(3) and 2246(3). He
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
was sentenced to sixteen months’ imprisonment, followed by one year of
supervised release. Shortly before Mr. Tom was scheduled to be released from
prison to commence his term of supervised release, the United States Probation
Department (“USPO”) filed an ex parte petition with the district court requesting
that an additional condition be added to Mr. Tom’s conditions of supervised
release. Specifically, the USPO asked that Mr. Tom be required to “reside at
residential re-entry center . . . for a period of up to 6 months as approved by the
probations officer.” Motion at 2, R. Vol. 2 at 37. After three hearings, the
district court imposed this special additional condition, which Mr. Tom now
appeals. We affirm.
BACKGROUND
In the fall of 2008, The Federal Bureau of Investigation and the Navajo
Department of Law Enforcement began investigating allegations of abusive sexual
contact involving a 14-year-old girl known as T.W. T.W. disclosed that for
nearly a year and a half, beginning in April 2007, Mr. Tom had been touching her
inappropriately. T.W. described various types of touching, from her inner thigh
to her breasts and buttocks.
Mr. Tom admitted during an interview with investigators that he had
touched T.W. over her clothing on at least four different occasions. Specifically,
he admitted to an incident in September 2008, when he walked into T.W.’s room
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where she was sleeping and began touching her leg until she awoke and told him
to stop. When T.W. told Mr. Tom that she was going to tell her grandmother
about the incident, Mr. Tom left the room.
Mr. Tom also admitted to a second incident that occurred the following
evening. He stated that he entered T.W.’s room while she was sleeping and began
touching her on her inner thigh. T.W. woke up and became upset and again told
Mr. Tom that she was going to tell her grandmother. Mr. Tom then left the room.
He admitted that he became excited when he touched T.W., including getting an
erection.
When asked about his relationship with T.W., Mr. Tom stated he was the
step-grandfather of T.W. He had helped to raise T.W. since the age of three,
along with T.W.’s grandmother, Elise Long, and a woman with whom Mr. Tom
had had a long-term relationship. T.W. and her grandmother moved out of
Mr. Tom’s house after the sexual abuse allegations were made.
As indicated, Mr. Tom pled guilty to the one count of abusive sexual
contact. In preparation for sentencing, the USPO prepared a presentence report
(“PSR”), which recommended an advisory sentence under the United States
Sentencing Commission, Guidelines Manual (“USSG”) (2009). With a total
offense level of 12 and a criminal history category of I, the advisory sentencing
range was ten to sixteen months. At sentencing, the district court sentenced
Mr. Tom to sixteen months’ imprisonment, followed by one year of supervised
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release. The court’s judgment provided that the terms of Mr. Tom’s supervised
release included a number of standard and special conditions, including that he
would “not have contact with children under the age of 18 without prior written
permission of the probation officer.” Amended Judgment at 5, R. Vol. 1 at 26.
The Judge did not order that Mr. Tom reside at a residential re-entry center after
his release from prison prior to his return home.
When the USPO filed its ex parte petition with the district court requesting
that an additional condition be imposed of residence in a Residential Re-Entry
Center for an additional six months, Mr. Tom opposed the motion.
The Probation Office’s reasons for imposing the condition were that, upon
his release from supervised release, Mr. Tom would live in close proximity (in the
family compound which Mr. Tom has inhabited for the prior thirty years) to his
now-eight-year-old granddaughter, and that a mental health counselor, Dr. Bobby
Sykes, believed Mr. Tom could not safely be in the community (and in particular
the compound near his granddaughter) without further treatment. Dr. Sykes noted
that Mr. Tom had a recurring, and chronic, alcohol abuse problem, interspersing
periods of sobriety with periods of moderate to little to considerable consumption
of alcohol.
On the other hand, Mr. Tom’s own daughter, as well as the father of the
eight-year old granddaughter, opposed the imposition of the special condition,
testifying that they had already kept their daughter away from Mr. Tom when he
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lived in the compound on his own recognizance before his trial. The daughter
testified that she would do the same upon his release from supervised release. In
particular, she testified that the granddaughter would be away at school for much
of the day, and then would be under the supervision of one or the other of her
parents when she was home.
Not surprisingly, Mr. Tom objected to the testimony of Dr. Sykes. Dr.
Sykes interviewed Mr. Tom four times, entirely in English without an interpreter,
despite the fact that Mr. Tom had essentially spent his entire life within the
Navajo community. Dr. Sykes admitted that he never established a rapport with
Mr. Tom, and he further agreed that Mr. Tom did not express himself or
understand English well. Dr. Sykes claimed, however, that he took care to make
sure that Mr. Tom understood him. Dr. Sykes’ examination of Mr. Tom revealed
that all four formal sex-offender-risk instruments indicated there was a low risk
that Mr. Tom would re-offend. Nonetheless, he determined that Mr. Tom was at a
high risk of re-offending because Mr. Tom was an introverted man from an
introverted culture with limited ability in the English language, with whom Dr.
Sykes had admittedly established no rapport and because Mr. Tom was very
reluctant to talk about his first sexual experiences.
On the other hand, Dr. Eric Westfried, who was a licensed clinical
psychologist, strongly disagreed with Dr. Sykes’ reasoning and methodology.
Dr. Westfield relied on a number of factors to conclude that Mr. Tom would not
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re-offend if released as scheduled and not required to attend extra time in the
Residential Re-Entry Center: Mr. Tom had done well living in his family
compound while on pretrial release, he had appeared to abstain from alcohol, and
he had significant family support.
Faced with these conflicting opinions, the district court determined to
follow neither one. Rather, the district court ultimately issued a memorandum
and opinion on October 18, 2011, granting the government’s motion in support of
the petition to modify the conditions of Mr. Tom’s supervised release and require
him to spend the extra six months in the Residential Re-Entry Center:
The Court has carefully considered Defendant’s arguments and
concerns. However, the Court is confronted in this case with a
convicted sex offender whose victim was a young teenager that
Defendant considered his step-granddaughter and whom he had
helped raise from the age of three. Defendant’s underlying conduct
involved multiple inappropriate contacts with his victim over the
course of months. He would be returning home to a situation where
his eight-year-old granddaughter would be living in very close
proximity to him in an isolated compound. This close proximity, by
itself, raises the risk that Defendant could inadvertently violate a
condition of release, namely that he not come into contact with any
children under the age of 18 without the written consent of his
probation officer. The Court is aware that Defendant’s daughter has
testified that she would relocate her children if necessary to enable
Defendant to return home, but the Court has not received any
information indicating that this has yet occurred.
Memorandum Opinion & Order at 5, R. Vol. 1 at 32. The court further
determined that:
[l]ooking at the nature and circumstances of the offense and the
history and characteristics of the Defendant, as required by 18 U.S.C.
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§§ 3583(d)(1) and 3553(a)(1) [the statutory provisions dealing with
conditions of supervised release and the general appropriate statutory
sentencing factors, respectively], the Court sees someone who has
demonstrated the capacity and willingness to sexually assault a girl
who, while not a blood relative, was almost like a member of his
family. He made multiple inappropriate advances multiple times
while his young victim was sleeping, and claims to have no memory
of doing so because of his level of intoxication. Continuing a course
of treatment at a residential re-entry center would help to protect the
public, and especially Defendant’s young granddaughter, from
further crime of Defendant, as contemplated by 18 U.S.C.
§ 3553(a)(2)(C). It would also provide Defendant with needed
sexual therapy to help him come to terms with why he acted in the
manner that he did, before being exposed to his granddaughter and
other children. See 18 U.S.C. § 3553(a)(2)(D).
Id. at 32-33. The court adequately performed its duty to explain its reasons for
imposing the special condition. As we have explained, “Title U.S.C. § 3583(e)(2)
provides district courts authority to ‘modify, reduce, or enlarge the conditions of
supervised release, at any time prior to the expiration or termination of the term
of supervised release. . . .’” United States v. Begay, 631 F.3d 1168, 1170 (10th
Cir.), cert. denied, 131 S. Ct. 3010 (2011). Thus, “a district court has authority to
modify conditions of supervised release after considering certain 18 U.S.C.
§ 3553(a) factors.” Accordingly, as we have stated recently:
Read together with the cross-references to 18 U.S.C.
§ 3553(a), the condition must (1) “be reasonably related to the nature
and circumstances of the offense and the history and characteristics
of the defendant” and (2) “involve no greater deprivation of liberty
than is reasonably necessary given the needs to afford adequate
deterrence to criminal conduct, to protect the public from further
crimes of the defendant, and to provide the defendant with needed
educational or vocational training, medical care, or other correctional
treatment in the most effective manner.
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United States v. Hahn, 551 F.3d 977, 983 (10th Cir. 2008) (quoting United States
v. Edgin, 92 F.3d 1044, 1049 (10th Cir. 1996)).
The court accordingly granted the government’s motion to impose the
additional term on Mr. Tom’s supervised release that he spend up to six more
months in a Residential Re-Entry center before being released from his supervised
release.
DISCUSSION
“When the defendant objects to a special condition of supervised release at
the time it is announced, this Court reviews for abuse of discretion.” United
States v. Mike, 632 F.3d 686, 691 (10th Cir. 2011); see also Begay, 631 F.3d at
1170. As required under our precedents, Mr. Tom was given prior notice of the
court’s intent to provide added conditions to his supervised release. See Hahn,
551 F.3d at 982. “The district court is required to give reasons on the record for
the imposition of special conditions of supervised release” although the court
“need only provide a ‘generalized statement of its reasoning.’” Mike, 632 F.3d
at 982 (quoting Edgin, 92 F.3d at 1049)).
As indicated above from the quotations from the court’s decision, it
considered the need to protect the public, to provide Mr. Tom with needed
treatment, and the history and characteristics of the defendant, as well as the
nature and circumstances of the offense. It clearly followed the mandate to
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consider the § 3553(a) factors. We cannot say that the district court abused its
discretion in imposing the special condition of supervised release that it did.
CONCLUSION
For the foregoing reasons, we AFFIRM the decision of the district court.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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