United States v. Kyle E. McClamma

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-14446
Non-Argument Calendar
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D.C. Docket No. 5:05-cr-00046-SDM-TBS-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KYLE E. MCCLAMMA,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
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(June 3, 2015)
Before JORDAN, JULIE CARNES, and FAY, Circuit Judges.
PER CURIAM:
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Kyle E. McClamma, proceeding pro se, appeals the district court’s denial of
his 2014 motion to modify the conditions of his supervised release, filed pursuant
to 18 U.S.C. § 3583(e)(2). Mr. McClamma argues that the district court abused its
discretion because it did not consider the factors listed in 18 U.S.C. § 3553(a), and
arbitrarily allowed him to have unsupervised contact with one of his daughters
while requiring supervised contact with another. He also argues that the
supervised contact restriction is substantively unreasonable and unconstitutional.
After careful review of the record and the parties’ briefs, we affirm.
I
In January of 2006, Mr. McClamma pled guilty to possession of child
pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). Prior to
sentencing, the district court required him to avoid contact with children unless an
adult was present. The district court, however, excepted from this condition of Mr.
McClamma’s presentence release his “own newborn child.”
In September of 2006, the district court sentenced Mr. McClamma to 36
months’ imprisonment, followed by a lifetime term of supervised release. One of
the conditions of Mr. McClamma’s supervised release was that he would “have no
direct contact with minors (under the age of 18) without the written approval of the
probation officer . . . .” The district court did not include a written exception
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regarding his daughter. Mr. McClamma did not appeal and served his sentence in
prison. Mr. McClamma began his term of supervised release on April 29, 2009.
In 2010, Mr. McClamma sought an order from the district court to clarify
that the terms of his supervised release permitted unsupervised contact with his
daughter, or in the alternative, allowed his parents to serve as supervisors when he
had contact with her. Following a hearing in January of 2011, Mr. McClamma and
the government agreed to modify the terms of supervised release to allow Mr.
McClamma to have contact with his daughter when he was supervised by an
approved third-party supervisor and according to a safety plan. Based on the
parties’ agreement, the district court granted Mr. McClamma’s motion in part.
In January of 2012, Mr. McClamma filed a motion under 28 U.S.C. § 2255contesting the terms of his supervised release. He argued that (1) the district court
violated his constitutional rights as a parent by restricting his interaction with his
daughter when such interaction was not reasonably related to his crime of
possession of child pornography, (2) the special condition restricting his right to
have unsupervised contact with his daughter violated his due process rights
because it was not specifically imposed at sentencing by the district court, and (3)
his due process rights were violated because the special condition restricting his
right to have unsupervised contact with his daughter was in conflict with the terms
of his plea agreement. The district court has not yet ruled on this motion.
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In December of 2012, Mr. McClamma filed a motion for early termination
of his supervised release, arguing that he was rehabilitated and that his plea
agreement originally provided for only three years of supervised release.
Following an evidentiary hearing, the district court denied Mr. McClamma’s
motion, based on the factors contained in 18 U.S.C. § 3553 and the interests of
justice. The district court’s written order stated that Mr. McClamma’s
term of service under supervised release remains too brief, his routine
and reliable compliance remains too uncertain, and his behavior
remains too unaccountable and uneven to permit a disinterested
observer to achieve the high level of comfort and confidence
necessary to terminate supervised release, especially in the instance of
a sex offender.
D.E. 72 at 3.
Mr. McClamma appealed the district court’s denial of his motion, arguing in
relevant part that the court failed to consider the § 3553(a) factors, gave improper
weight to the probation officer’s opinions and the fact that Mr. McClamma had
passed only 3 of 8 polygraphs, that he had no notice that his presentence release
condition permitting unsupervised visitation with his daughter would not also
apply during his term of supervised release, and that the restriction prohibiting
unsupervised visits with his daughter was unjustly burdensome and punitive.
In 2013, we affirmed the district court’s denial of Mr. McClamma’s motion
for early termination of supervised release. See United States v. McClamma, 548
F. App’x 598 (11th Cir. 2013). We held that the district court properly considered
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the § 3553(a) factors and did not abuse its discretion in reaching its ultimate
conclusion. We also ruled that one of Mr. McClamma’s arguments—that his
supervised release condition was substantively unreasonable—failed because it
was not raised before the district court and was untimely. See id. at 600.
In August of 2014, Mr. McClamma filed the instant motion to modify the
terms of his supervised release under 18 U.S.C. § 3583(e)(2). He alleged that he
divorced in 2010, remarried in 2013, and that his new wife was pregnant. He
requested that the district court modify his supervised release conditions so that he
could have unsupervised visitation with both of his children as well as supervised
contact with other children. The probation office recommended that Mr.
McClamma be allowed to have unsupervised contact with his soon-to-be-born
daughter but that the current restrictions regarding his older daughter remain in
place, given that Mr. McClamma’s ex-wife was not comfortable with unsupervised
contact and that Mr. McClamma had passed only 4 of 11 polygraph tests at the
time. The government supported the probation office’s recommendation.
The district court granted Mr. McClamma’s motion in part, modifying the
terms of supervised release to allow unsupervised contact with his soon-to-be-born
daughter. The district court denied the remainder of the motion and confirmed that
Mr. McClamma was permitted only supervised contact with his older daughter.
Mr. McClamma moved for reconsideration, but the district court denied his
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motion, “direct[ing]” his “attention . . . to an earlier order[,] . . . especially” the part
where the court had ruled that a disinterested observer would not have “the high
level of comfort and confidence necessary to terminate [his] supervised release.”
The district court ruled that Mr. “McClamma’s life term of supervision is as
relaxed as the circumstances at this moment permit.” Mr. McClamma now
appeals.
II
We review the denial of a motion to modify the conditions of supervised
release for abuse of discretion. See United States v. Serrapio, 754 F.3d 1312, 1318
(11th Cir. 2014) (reviewing modification of conditions of probation, under 18
U.S.C. § 3563, for an abuse of discretion). Under the abuse of discretion standard,
“[w]e will reverse only if we have a definite and firm conviction that the [district]
court committed a clear error of judgment in the conclusion it reached.” United
States v. Moran, 573 F.3d 1132, 1137 (11th Cir. 2009) (internal quotation marks
and citation omitted, and second alteration in original).
In relevant part, § 3583(e)(2) permits a district court to modify the
conditions of a term of supervised release, after considering specified factors set
forth in § 3553(a). The relevant § 3553(a) factors include the nature and
circumstances of the offense, the defendant’s history and characteristics,
deterrence, public protection, training and education, the applicable sentencing
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guideline range for the offense, and the need to avoid unwarranted sentencing
disparities. See § 3553(a)(1), (a)(2)(B)-(D), and (a)(4)-(7).
Although the district court is required to consider each of the § 3553(a)
factors in determining a reasonable sentence, it is not required to state on the
record that it has explicitly considered, or to discuss, each factor. See United
States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005), abrogated on other grounds
by Rita v. United States, 551 U.S. 338 (2007). It is sufficient if the record shows
that the district court considered the § 3553(a) factors through its conduct, even if
the court failed to explicitly mention § 3553(a). See United States v. Dorman, 488
F.3d 936, 944 (11th Cir. 2007).
Here, the district court did not abuse its discretion in denying Mr.
McClamma’s recent motion to modify his supervised release. The record indicates
that the district court properly considered the § 3553(a) factors when it decided in
2014 not to modify the terms of Mr. McClamma’s supervised release.
When the district court denied Mr. McClamma early termination from his
supervised release in February of 2013, it explicitly considered many of the §
3553(a) factors. Part of the reason the district court denied Mr. McClamma’s early
termination motion was that the supervised release term to that point was “too
brief,” Mr. McClamma’s routine was “too uncertain,” and the behavior was “too
unaccountable and uneven.” We affirmed this denial in December of 2013 and
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held that the district court had “considered the entire record” and “expressly
referenced the § 3553(a) factors” in its order. McClamma, 548 F. App’x at 599.
Less than one year later, Mr. McClamma filed the instant motion to modify
the terms of his supervised release, again seeking unsupervised contact with his
older daughter. Mr. McClamma also sought unsupervised contact with his younger
daughter (who was then about to be born), as well as supervised contact with any
other child. The record shows that, according to Mr. McClamma, the significantly
changed circumstances were that Mr. McClamma’s new wife was about to give
birth, and he had passed 4 of 11 polygraphs, as opposed to 3 of 8 during the district
court’s previous denial. Mr. McClamma did not argue that any other
circumstances had changed with regard to his older daughter, and the probation
office indicated that Mr. McClamma’s ex-wife opposed any modification to his
supervised visitation restrictions.
On this record, we cannot say that the district court abused its discretion by
continuing to enforce the condition of Mr. McClamma’s supervised release
requiring supervised visitation with his older daughter. The district court granted
Mr. McClamma’s motion in part by permitting unsupervised visitation with his
younger daughter, and when it denied Mr. McClamma’s motion for
reconsideration, it directed his attention to its earlier but relatively recent
conclusion that he needed to show more accountability and even behavior over a
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longer period of time. There is no evidence that the district court summarily
denied Mr. McClamma’s motion without considering the relevant § 3553(a)
factors. Any claim to the contrary fails.
III
Mr. McClamma also argues that his supervised release condition requiring
supervised contact with his older daughter is substantively unreasonable and
unconstitutional. These claims, however, fail for the same reason they failed
during his 2013 appeal from the district court’s denial of his motion for early
termination of his supervised release.
As was the case during the 2013 appeal, Mr. McClamma failed to raise in
his current motion to modify his supervised release any arguments that his
supervised release condition was either substantively unreasonable or
unconstitutional. We noted in the 2013 appeal that such claims could be
reviewable through a § 3583(e)(2) motion, but Mr. McClamma still had an
obligation to make these arguments before the district court. See Access Now, Inc.
v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004) (“This Court has
repeatedly held that an issue not raised in the district court and raised for the first
time in an appeal will not be considered by this court.”) (internal quotation marks
and citation omitted).
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As we did before, we recognize that Mr. McClamma has a separate,
counseled, and still pending 28 U.S.C. § 2255 petition from January of 2012
challenging the constitutionality and substantive unreasonableness of this special
condition. But we cannot pass on these issues until the district court has had an
opportunity to rule on the petition.
IV
Accordingly, we affirm the district court’s denial of the motion to modify
the conditions of supervised release, and leave for another day Mr. McClamma’s
claims that the supervised contact condition with respect to his older daughter is
substantively unreasonable or unconstitutional.
AFFIRMED.
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