United States v. Christian

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 4, 2009
No. 08-10087 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JESSE LEON CHRISTIAN
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:07-CR-226
Before JONES, Chief Judge, HIGGINBOTHAM and HAYNES, Circuit Judges.
PER CURIAM:*
Jesse Leon Christian (“Christian”) appeals the imposition of a condition
of supervised release preventing him from having unsupervised contact with
minors without the permission of his probation officer. We affirm. He also
appeals a sentencing condition requiring his participation in sex offender
treatment. We reject this challenge as unripe. Finally, Christian challenges the
district court's ruling that his federal sentence run consecutively with any state
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 08-10087
sentences, which have not yet been imposed. He admits this argument is
foreclosed by precedent.
Christian pled nolo contendere to second degree rape of an adult, in
Oklahoma in April 2005. Released on probation in September 2006, he
registered as a sex offender in Oklahoma City. But when he traveled to Texas
in February 2007, he failed to notify his probation officer or to register as a sex
offender in Texas, as required by 18 U.S.C. § 2250.
On June 1, 2007, he was arrested in Texas for eight outstanding felony
warrants and two misdemeanor warrants, all originating from Oklahoma.
Christian claimed he traveled to Texas just for a short time, back in February,
to get his son, Shane Fontaine, out of foster care. Shane was in the custody of
Child Protective Services because of alleged sexual abuse perpetrated by
someone else. At the time of his arrest, Christian was employed and living with
his girlfriend, who was his estranged wife's daughter by another father.
Christian was indicted on a single count of failure to register as a sex
offender, 18 U.S.C. § 2250. The presentence report (“PSR”) calculated
Christian's offense level at 12. His extensive criminal record placed him in
criminal history category VI. As a result, the sentencing range was calculated
at 30 to 37 months. Christian objected to portions of the PSR. The district court
denied the government's motion to depart upward and sentenced Christian to
37 months and five years of supervised release, with the sentence to run
consecutively to any as yet unimposed state sentences stemming from the
outstanding warrants. The court also imposed two special terms of supervised
release. The court ordered Christian to "participate in sex offender treatment
services . . . [which] may include psycho-physiological testing." Also, the court
barred Christian from "any form of unsupervised contact with minors under the
age of 18 at any location . . . without prior permission of the probation officer."
Christian objected to both conditions, and after an off-the-record conversation
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with the probation officer, the court ruled that the record justified these
conditions.
Christian appeals the two conditions of supervised release and the
imposition of a sentence to run consecutively with a future state sentence.
Because Christian objected below to the imposition of both special
conditions of supervised release, we review the district court's decision for an
abuse of discretion. United States v. Rodriguez, 558 F.3d 408, 412 (5th Cir.
2009). A district court has wide discretion to impose any condition of supervised
release it deems appropriate, but the conditions must be reasonably related to
three criteria. Rodriguez, 558 F.3d at 412-13 (citing 18 U.S.C. § 3583(d)). First,
the sentence must be reasonably related, to (1) "the nature and circumstances
of the offense and the history and characteristics of the defendant," (2) the
deterrence of criminal conduct, (3) the protection of the public from any further
crimes, and (4) the defendant's "needed educational or vocational training,
medical care, or other correctional treatment." § 3583(d)(1) (citing 18 U.S.C.
§ 3553(a)(1), (a)(2)(B)-(D)). Second, the condition cannot impose any "greater
deprivation than is reasonably necessary" to deter criminal conduct, protect the
public from any of the defendant's future crimes, and provide the defendant with
"needed educational or vocational training, medical care, or other correctional
treatment." § 3583(d)(2) (citing 18 U.S.C. § 3553(a)(2)(B)-(D)). Third, the
condition must be consistent with any pertinent policy statements the United
States Sentencing Commission issues. § 3583(d)(3).
1. No Contact with Minor Children Without Permission
Christian challenges the condition of supervised release that he not have
any unsupervised contact with minors without a probation officer's prior
approval. Similar restrictions have been upheld in cases involving child
pornography or sexual contact with minors. United States v. Rodriguez,
558 F.3d 408 (5th Cir. 2009) (pending state charge for sexual assault of a
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minor); United States v. Buchanan, 485 F.3d 274, 288 (5th Cir. 2007) (convicted
of receipt of child pornography); United States v. Paul, 274 F.3d 155, 165-66 (5th
Cir. 2001) (pled guilty to possession of child pornography).
Christian argues that his prior conviction, in contrast, is for the rape of an
adult. He also argues that there is no proof of his sexual contact with children,
or that he is likely to abuse children. He contends that the restriction will
prevent him from seeing his son, although it is unclear when Christian last saw
Shane Fontaine or his other children.1
The government argues the restriction is justified because the court found,
based on the PSR, that Christian viewed adult pornography in the vicinity of
children, and the PSR stated that "[a]ccording to records from the Texas
Department of Family and Protective Services, there is a lengthy record of abuse
and neglect associated with [Christian], his wife, and their children." 2 Although
Christian is not under investigation for sexually abusing Shane Fontaine, the
details of this investigation are unclear as the PSR states that the investigation
is ongoing. The PSR also mentions a March 9, 2005, arrest for "corporeal injury
to child" where Christian denied causing a bruise to the rear end of another
infant son with another woman. While being questioned, Christian apologized
and asked for forgiveness.3 Statements in a PSR usually have sufficient indicia
of reliability to be used as evidence, unless the PSR merely recites the
prosecutor's conclusions. United States v. Rome, 207 F.3d 251, 254 (5th Cir.
1
Christian has two other children with two different women.
2
Christian and his estranged wife, Sherry Fontaine, had twins together, Shane
Fontaine and Shania Christian, who died from sudden infant death syndrome at the age of two
months. Sherry Fontaine has four other children not by Christian. Presumably the PSR was
referencing some combination of these five children.
3
Christian’s written objections to the PSR state that he believes the charge was
dropped. The arrest alone would not be compelling, but this one was coupled with his apology
and request for forgiveness.
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No. 08-10087
2000). The statements here are sufficiently reliable, and Christian offers no
evidence in rebuttal. See id.
Because the district court has wide discretion to impose terms of
supervised release, this evidence, viewed in its entirety, is sufficient to support
the restriction. Christian is not, however, ineluctably barred from contact with
his children. The term of supervised release allows such contact with the
probation officer's permission. If such permission is unfairly denied, the district
court can modify this term under 18 U.S.C. § 3583(e)(2) and Fed. R. Crim.
P. 32.1(c). See United States v. Phipps, 319 F.3d 177, 193-94 (5th Cir. 2003)
(upholding condition of supervised release and suggesting modification as a
possible remedy).
2. Sex Offender Treatment
Christian argues that requiring him to participate in sex offender
treatment services that might include psycho-physiological testing is a greater
deprivation of liberty than is reasonably necessary under 18 U.S.C. § 3582(d)(2).
He fears that part of his treatment will involve a mentally and physically
intrusive procedure of disputed scientific validity called the penile
plethysmograph. Christian's broadside against this testing is unripe because the
court did not order him to submit to this procedure, and there is no certainty
whatsoever the procedure will be ordered. See United States v. Carmichael,
343 F.3d 756, 761-62 (5th Cir. 2003). This challenge to a condition of supervised
release is unlike Christian's challenge related above, where the restriction is not
contingent on future events or decisions. See, e.g., United States v. Paul,
274 F.3d 155, 164-55 (5th Cir. 2001) (addressing the appeal of several
restrictions including no contact with minors). We agree with those circuits that
dismissed similar challenges to penile plethsymograph testing for lack of
ripeness. See United States v. Rhodes, 552 F.3d 624, 628 (7th Cir. 2009); United
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No. 08-10087
States v. Lee, 502 F.3d 447, 449-451 (6th Cir. 2007). But see United States v.
Weber, 451 F.3d at 556-57 (9th Cir. 2006).
Nevertheless, as with the no-contact restriction, Christian can petition the
district court to modify this condition if he is ordered to submit to the procedure.
3. Concurrent sentences
Christian challenges the district court's ruling that his federal sentence
must run consecutively with any state sentence that may be imposed for the
Oklahoma charges pending at the time of his arrest. This argument is foreclosed
by our prior caselaw. United States v. Brown, 920 F.2d 1212, 1216-17 (5th Cir.
1991)
For these reasons, the sentence imposed by the district court is
AFFIRMED.
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