United States v. Allen Ortega

Case: 11-41021 Document: 00511951816 Page: 1 Date Filed: 08/09/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 9, 2012
No. 11-41021 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
ALLEN MANUEL ORTEGA,
Defendant–Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:11-CR-392-1
Before DAVIS, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Allen Manuel Ortega pleaded guilty to one count of using a means of
interstate commerce to attempt to induce a minor to engage in sexual activity
in violation of 18 U.S.C. § 2422(b). On appeal, he challenges the district court’s
imposition of a lifetime term of supervised release as well as one of the special
conditions of his supervised release. We affirm the term of supervised release
and dismiss Ortega’s challenge to the special condition for lack of jurisdiction.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 11-41021
I
The charges against Ortega resulted from an undercover investigation
conducted by the Corpus Christi Police Department. Detective Leonard Garza,
posing as a fourteen-year-old girl named “Cindy” on the social networking site
MocoSpace, was contacted on numerous occasions by Ortega through MocoSpace
and via text messages. Ortega expressed his desire to meet “Cindy” in person
and to have sex with her. He also expressed concern that she would report him
to the police because she was a minor and he was an adult. Eventually, “Cindy”
agreed to meet Ortega at an apartment complex in Corpus Christi. Ortega was
arrested when he arrived at the location, and he was found to be in possession
of a condom. During a video-taped interview, he admitted that he intended to
meet a fourteen-year-old girl to have sex, and forensic analysis of his cellular
telephone revealed numerous messages between him and “Cindy” as well as
nude or partially nude pictures of females, three of which appeared to be minors.
After Ortega pleaded guilty, a probation officer generated a Pre-Sentence
Investigation Report (PSR), which was later adopted as the findings of the
district court. In calculating Ortega’s sentence, the PSR began with a base
offense level of twenty-eight and added two levels because the offense involved
the use of a computer. The PSR subtracted three levels for acceptance of
responsibility, which resulted in a total offense level of twenty-seven. Because
Ortega fell into Criminal History Category I, the United States Sentencing
Guidelines’ advisory range of imprisonment was seventy to eighty-seven months,
but the statutory mandatory minimum sentence was 120 months.1 The
statutory range for supervised release was five years to life, while a Guidelines
1
18 U.S.C. § 2422(b); U.S. SENTENCING GUIDELINES MANUAL, ch. 5, pt. A (2010).
2
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Policy Statement recommended a lifetime term of supervised release because
Ortega was convicted of a sex offense.2
At sentencing, the Government requested a sentence of 120 months of
imprisonment followed by a lifetime term of supervised release, and Ortega
asked for a shorter term of supervised release. Ultimately, the district court
sentenced Ortega to 120 months of imprisonment followed by a lifetime term of
supervised release. The district court departed downward by imposing no fine,
and it imposed a $100 special assessment. The district court imposed the
standard terms and conditions of supervised release along with several special
conditions. The district court also informed Ortega that if during his lifetime the
probation office determined that he was no longer a risk, then the district court
“would be glad to lower [his] lifetime supervision.” At the end of the sentencing
hearing, Ortega’s counsel objected to the sentence on the ground that it was
greater than necessary according to the § 3553 sentencing factors.
Subsequently, Ortega filed this appeal.
II
First, Ortega argues that the district court’s imposition of a lifetime term
of supervised release was procedurally and substantively unreasonable because
the district court based the sentence on its “disgust at the offense and unfounded
assumptions about the likelihood that [he] would recidivate.” We review
Ortega’s sentence under an abuse-of-discretion standard.3 The Supreme Court
has explained how an appellate court is to conduct this review:
It must first ensure that the district court committed no significant
procedural error, such as failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as
2
18 U.S.C. § 3583(k); U.S. SENTENCING GUIDELINES MANUAL § 5D1.2(b) (policy
statement).
3
Gall v. United States, 552 U.S. 38, 51 (2007); see also 18 U.S.C. § 3583(a) (indicating
that supervised release is a part of the sentence).
3
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mandatory, failing to consider the § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence—including an explanation for any
deviation from the Guidelines range. Assuming that the district
court’s sentencing decision is procedurally sound, the appellate
court should then consider the substantive reasonableness of the
sentence imposed under an abuse-of-discretion standard.4
The district court did not commit any procedural error. The district court
discussed the PSR’s Guidelines calculations, and neither side has challenged
those calculations. After imposing the sentence, the district court expressly
stated that it considered the § 3553 factors “to come up with a sentence [it]
thought was appropriate in this case,” and various statements made by the
district court at Ortega’s sentencing confirm this. The district court indicated
that Ortega might need to be watched for the rest of his life in order to protect
other children from a “child predator” who sought to have sex with a fourteen-
year-old girl because, as the court noted, “the cure rate . . . for child pedophilia
is almost nil.” The district court also expressed doubts as to whether Ortega’s
time in prison would “change his sexual preference.”
The issues that Ortega raises on appeal appear directed at the substantive
reasonableness of imposing a lifetime term of supervised release in this case.
“This court applies a rebuttable presumption of reasonableness to a properly
calculated, within-guidelines sentence such as [Ortega’s].”5 “The presumption
is rebutted only upon a showing that the sentence does not account for a factor
that should receive significant weight, it gives significant weight to an irrelevant
or improper factor, or it represents a clear error of judgment in balancing
sentencing factors.”6
4
Gall, 552 U.S. at 51.
5
United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
6
Id. (citing United States v. Nikonova, 480 F.3d 371, 376 (5th Cir. 2007)).
4
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Ortega argues that the district court decided to impose a lifetime term of
supervised release before it considered his individual circumstances because, in
explaining the maximum possible punishment that could be assessed for
entering a guilty plea at his re-arraignment, the district court stated that it
usually imposes a lifetime term of supervised release. This statement does not
rebut the presumption of reasonableness. The district court was setting forth
for Ortega the possible ramifications of entering a guilty plea, and the district
court’s statement that it usually imposes a lifetime term of supervised release,
when that is what the Guidelines recommend,7 does not show that Ortega’s
circumstances were not considered.
Ortega also argues that the district court relied on “generalizations about
sex offenders” because it referred to him as a “child predator” and a pedophile.
Whether Ortega meets the clinical definition of a pedophile is beside the point.
Ortega pleaded guilty to seeking to have sex with a fourteen-year-old girl, and
the district court noted Ortega’s expressed desire not to get caught when it
mentioned Ortega’s conversations with “Cindy” regarding the television show To
Catch a Predator. Thus, he did seek to sexually “prey” on a child, which fits the
layman’s definition of a pedophile. Additionally, we refuse to fault the district
court for expressing its concern regarding the recidivism rate of sex offenders
who prey on children when this court has done the same.8
7
See 18 U.S.C. § 3583(k) (mandating that the term of supervised release for any offense
under § 2422 is between five years and life); U.S. SENTENCING GUIDELINES MANUAL § 5D1.2(b)
(policy statement) (“If the instant offense of conviction is a sex offense, however, the statutory
maximum term of supervised release is recommended.”); United States v. Allison, 447 F.3d
402, 407 (5th Cir. 2006) (concluding that the sentence imposed was “consistent with Congress’s
and the Sentencing Commission’s intention to punish child sex offenders with life terms of
supervised release”).
8
See United States v. Bacon, 646 F.3d 218, 222 (5th Cir. 2011) (per curiam) (“This court
has frequently noted the increased risk of recidivism associated with the sexual abuse and
exploitation of children.”) (citing United States v. Brigham, 569 F.3d 220, 234 (5th Cir. 2009);
United States v. Allison, 447 F.3d 402, 407 (5th Cir. 2006)).
5
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Ortega insinuates that personal bias may have factored into the
sentencing decision, but we view the cited exchange between the district court
and Ortega’s counsel as nothing more than an attempt by the district court to
illustrate why it refused the suggestion of Ortega’s counsel that it should treat
Ortega more leniently because he was seeking to have sex with a fourteen-year-
old instead of a prepubescent girl. The remainder of Ortega’s arguments were
heard, considered, and rejected by the district court at sentencing, and
essentially Ortega is asking us to reweigh the § 3553(a) sentencing factors.9
“[T]he sentencing judge is in a superior position to find facts and judge their
import under § 3553(a) with respect to a particular defendant.”10 “[T]he
possibility that this court ‘might reasonably have concluded that a different
sentence was appropriate is insufficient to justify reversal of the district court.’”11
Because this and the rest of Ortega’s arguments fail to rebut the presumption
of reasonableness attached to his within-Guidelines sentence, we will not disturb
the lifetime term of supervised release imposed by the district court.
III
Ortega’s second claim is that the district court erred when it imposed a
special condition of his supervised release requiring him to participate in a
mental health treatment program and/or sex offender treatment program, which
might include psycho-physiological testing, including plethysmograph testing.12
9
See United States v. Camero-Renobato, 670 F.3d 633, 636 (5th Cir. 2012) (per curiam).
10
United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008) (per curiam)
(citing Gall v. United States, 552 U.S. 38, 51 (2007)).
11
Camero-Renobato, 670 F.3d at 636 (quoting Gall, 552 U.S. at 51).
12
“Penile plethysmograph testing is a procedure that ‘involves placing a pressure-
sensitive device around a man’s penis, presenting him with an array of sexually stimulating
images, and determining his level of sexual attraction by measuring minute changes in his
erectile responses.’” United States v. Rhodes, 552 F.3d 624, 626 (7th Cir. 2009) (quoting Jason
R. Odeshoo, Of Penology and Perversity: The Use of Penile Plethysmography on Convicted
6
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Ortega argues that the special condition is “overly broad and involves a greater
deprivation of liberty than is necessary” and asks that we “strike from the
judgment the portion of the condition of supervised release authorizing
plethysmograph testing.” In response, the Government argues that this claim
is not ripe for consideration at this time. Because ripeness is a jurisdictional
issue, we will address it first, and we review the issue de novo.13 We agree with
the Government that this claim is not ripe at this time.
The special condition that Ortega challenges reads:
The defendant shall participate in a mental health treatment
program and/or sex offender treatment program provided by a
Registered Sex Offender Treatment Provider, which may include
but not be limited to group and/or individual counseling sessions,
Abel Screen, polygraph testing and/or psycho-physiological testing,
including but not limited to plethysmograph testing, to assist in
treatment and case monitoring administered by the sex offender
contractor or their designee.
The district court did not order Ortega to participate in plethysmograph testing.
It ordered him to participate in a mental health treatment program and/or sex
offender treatment program. Plethysmograph testing is included in the special
condition as one of several non-exclusive examples of the types of treatments
that may be included in such programs.
At this time, we cannot be certain whether, after Ortega completes his
120-month term of imprisonment, he will be ordered to participate in a
treatment program that requires plethysmograph testing. “A claim is not ripe
for adjudication if it rests upon ‘contingent future events that may not occur as
anticipated, or indeed may not occur at all.’”14 Because there is no certainty as
Child Sex Offenders, 14 TEMP. POL. & CIV. RTS. L. REV. 1, 2 (2004)).
13
Lopez v. City of Hous., 617 F.3d 336, 339 (5th Cir. 2010).
14
Texas v. United States, 523 U.S. 296, 300 (1998) (quoting Thomas v. Union Carbide
Agric. Prods. Co., 473 U.S. 568, 580-81 (1985)) (internal quotation marks omitted).
7
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to whether plethysmograph testing will be ordered, we conclude that this claim
is not ripe. As did a prior panel of this court in an unpublished opinion, we too
agree with our sister circuits that have dismissed similar challenges for lack of
ripeness.15 The cases that Ortega cites to show that we have considered similar
claims in the past are distinguishable because the special conditions in those
cases were not contingent on future events.16 When Ortega’s claim is ripe, he
may request that the district court modify his conditions of supervised release.17
* * *
For the foregoing reasons, we AFFIRM the district court’s imposition of a
lifetime term of supervised release, and we DISMISS Ortega’s challenge to the
special condition of supervised release for lack of jurisdiction.
15
United States v. Christian, 344 F. App’x 53, 56-57 (5th Cir. 2009) (unpublished); see
United States v. Rhodes, 552 F.3d 624, 628-29 (7th Cir. 2009); United States v. Lee, 502 F.3d
447, 450-51 (6th Cir. 2007); see also United States v. Carmichael, 343 F.3d 756, 761-62 (5th
Cir. 2003). But see United States v. Weber, 451 F.3d 552, 556-57 (9th Cir. 2006).
16
See United States v. Segura-Lara, No. 04-20631, 2006 WL 565687, at *1-2 (5th Cir.
2006) (per curiam) (unpublished) (considering a special condition prohibiting the use of drugs,
alcohol, or tobacco without a prescription from a non-relative physician); United States v.
Ferguson, 369 F.3d 847, 849, 853 (5th Cir. 2004) (per curiam) (considering special conditions
prohibiting the use of tobacco, alcohol, and certain medications without a prescription).
17
See 18 USC § 3583(e); FED. R. CRIM. P. 32.1(c); Christian, 344 F. App’x at 57; Rhodes,
552 F.3d at 629; Lee, 502 F.3d at 451.
8