United States v. Armendariz

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED JULY 5, 2006
June 5, 2006
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 05-20427
UNITED STATES OF AMERICA
Plaintiff - Appellant
v.
HORACIO ARMENDARIZ
Defendant - Appellee
Appeal from the United States District Court
for the Southern District of Texas
Before KING, BARKSDALE and DENNIS, Circuit Judges.
KING, Circuit Judge:
The government appeals the five-year prison sentence of
Horacio Armendariz, who pleaded guilty to the offense of use of
the Internet to attempt to entice a minor between twelve and
fifteen years of age to engage in sexual activity that would
constitute an Aggravated Sexual Assault crime under TEX. PENAL CODE
ANN. § 22.021, in violation of 18 U.S.C. § 2422(b).
Specifically, the government argues that the district court’s
failure to impose supervised release was unreasonable. For the
following reasons, we VACATE Armendariz’s sentence and REMAND to
the district court for resentencing.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The Offense
On November 7, 2004, thirty-eight-year-old defendant-
appellee Horacio Armendariz visited the Yahoo “Lil Boys for Older
Men” Internet chat room and began an online conversation with a
person whom he believed to be a thirteen-year-old boy named Toby.
“Toby” was in fact a female undercover law enforcement officer
pretending to be an underage boy. Following their initial
interaction, Armendariz contacted Toby via the Internet on
November 8, 9, 10, 11, 15, 16, 17, and 18. During these online
chats, Armendariz described sexual encounters that he would like
to have with Toby, expressing his desire to teach Toby how to “do
it in a bed,” perform oral and anal sex on him, and take a shower
with him. He also told Toby that he would teach him how to
perform oral sex and how to do other things of a sexual nature.
Armendariz and Toby also exchanged phone numbers, and on November
10, Armendariz called Toby on the telephone, still believing that
the officer who spoke with him was a thirteen-year-old boy.
During that conversation, Armendariz told Toby that he would like
to meet him in person for sex, but acknowledged that it was
illegal for him to “go out” with someone who was underage. In
subsequent Internet conversations with Toby, Armendariz admitted
that he had masturbated after they had talked on the phone, and
began planning to travel from Marshall, Texas, to Houston, Texas,
-2-
for the purpose of having a sexual encounter with the boy.
Although Armendariz had originally planned to travel to
Houston to meet Toby on November 12, Armendariz had to cancel
because of his work schedule. They agreed to meet instead on
Friday, November 19, when Armendariz said that he could take the
entire weekend off of work to spend with Toby. Armendariz booked
a Houston hotel room for that weekend in advance and encouraged
Toby to fabricate a story to explain his whereabouts to his
mother. They arranged to meet that Friday at 3:30 p.m. in a
parking lot near Toby’s school where Armendariz said that he
would be waiting for him in a red car.
On November 19, 2004, Houston law enforcement officials
arrested Armendariz in the parking lot where he and the
undercover officer posing as Toby had agreed to meet. Armendariz
admitted that he knew that Toby was thirteen years old and that,
even though he knew it was wrong, he had traveled to Houston to
meet Toby because he was lonely. Armendariz also admitted that
he believed that Toby was expecting to have sex with him that
weekend, but Armendariz denied that he was expecting the same.
However, when the police performed a consent search of
Armendariz’s single-bed hotel room, they found a pack of condoms,
lubricant, and two enemas.
Law enforcement officials also searched Armendariz’s
computer and found that he had corresponded with at least four to
five other males ranging in age from sixteen to twenty-three, but
-3-
found no evidence that he attempted to have, or succeeded in
having, sex with a minor other than Toby. The officers found no
child pornography on Armendariz’s computer or in his possession.
Prior to this arrest, Armendariz had a steady history of gainful
employment and had no convictions or criminal history of any
kind.
On December 13, 2004, a federal grand jury indicted
Armendariz on one count of use of the Internet to attempt to
entice a minor between twelve and fifteen years of age to engage
in sexual activity that would constitute an Aggravated Sexual
Assault crime under TEX. PENAL CODE ANN. § 22.021, in violation of
18 U.S.C. § 2422(b). On January 10, 2005, Armendariz pleaded
guilty to the indictment without a plea agreement.
B. The Sentencing
A conviction under 18 U.S.C. § 2422(b) carries with it a
sixty-month mandatory minimum prison sentence, which applies even
in situations where the United States Sentencing Guidelines
(“U.S.S.G.” or “the Guidelines”) indicate that a shorter prison
term might be appropriate. See id. Although 18 U.S.C. § 2422(b)
does not prescribe a statutory minimum term of supervised
release, 18 U.S.C. § 3583(b) and (k) provides that the penalty
for the offense, a crime involving a minor victim, may include
supervised release for “any term of years or life.” Further,
§ 5D1.1(a) of the Guidelines states that “[t]he court shall order
-4-
a term of supervised release to follow imprisonment when a
sentence of imprisonment of more than one year is imposed, or
when required by statute.”1 Under the Guidelines, the applicable
range of supervised release for a Class B felony is three to five
years and, if the felony is a sex offense, may be up to life.2
See U.S.S.G. § 5D1.2(a)(1), (b)(2).
In the Presentence Investigation Report (“PSR”), the
probation officer scored Armendariz’s offense at base offense
level 24, recommending a two-level upward adjustment under
U.S.S.G. § 2G1.3(b)(2)(B) for unduly influencing a minor to
engage in prohibited sexual conduct and an additional two-level
increase for the use of a computer or Internet-access device.
The probation officer also recommended a three-level reduction
for acceptance of responsibility under U.S.S.G. § 3E1.1(a) and
(b), for a total offense level of 25. Given Armendariz’s lack of
criminal history (i.e., a Criminal History Category of I), the
resulting applicable sentencing range, taking into account the
1
All references to specific Guidelines provisions are to
the 2004 version of the UNITED STATES SENTENCING GUIDELINES MANUAL,
which applied in this case because it was in effect at the time
of the offense.
2
A conviction under 18 U.S.C. § 2422(b) is a Class B
felony because it provides for a thirty-year maximum term of
imprisonment. See 18 U.S.C. § 3559(a)(2) (classifying an offense
for which the term of imprisonment is twenty-five years or more
as a Class B felony).
-5-
sixty-month mandatory minimum, was sixty to seventy-one months.3
Based on this calculation and on the sentencing factors
enumerated in 18 U.S.C. § 3553(a), the probation officer
recommended a sentence of sixty months imprisonment. The
probation officer also recommended five years of supervised
release to follow Armendariz’s sixty-month term of imprisonment
“to assist the defendant through directive and referral
counseling services in gaining employment and reintegrating back
into the community.” Neither the government nor Armendariz
lodged any objection to the recommendations contained in the PSR.
The district court conducted a sentencing hearing on April
11, 2005. At the hearing, the government acknowledged that “a
sentence at the low-end of the guideline would be appropriate for
Mr. Armendariz, given the facts in this situation, his lack of
criminal history, no pornography was found on his computer that
was at his home in East Texas.” 2 Rawle 5. Armendariz’s attorney
further requested “the lowest supervised release you can also
give him. He’s going to have to register as a sex offender and
deal with all that in the State systems wherever he goes, and
just the additional supervised release is gratuitous, it seems.”
2 Rawle 6. The court then engaged in a colloquy with Armendariz,
emphasizing the importance of professional counseling to combat
3
Absent the statutory mandatory minimum, the recommended
sentencing range under the Guidelines Sentencing Table would have
been fifty-seven to seventy-one months. See U.S.S.G. § 5A.
-6-
the recidivist tendencies of pedophiles:
[T]his crime appears, from our current understanding, to
have a substantial either physiological or certainly
psychological component, and it has an extraordinarily
high rate of repeat offense. If for a moment we just
describe it as a compulsion . . . that in no way of
course excuses it any more than if Charlie Manson’s
compulsion with chopping people into small bits at
parties excuses his. But because you’re going to have a
long opportunity to exercise your freedom in the future
. . . this is an area of behavior where counseling can
help. And I don’t know that it can cure the inclination
or the interest . . . but somebody you can trust and talk
to about your feelings, even though you are successfully
repressing them, may make it easier never to act on them
again. And that’s the goal here. . . . [T]his is not
something that you commit, suffer some punishment, and
then everything goes back to the way it was before if you
were just a felon. There are all of those complicated
regulatory things. And while I don’t necessarily agree
with everything done in the name of our children, there
are good reasons to have continual supervision for
pedophiles. There are statistically good reasons. That
doesn’t mean they necessarily apply in your case. This
could have been completely aberrational and be no risk of
your repeating, but public policy is made on averages and
the average pedophile is a repeat offender. So in
addition to what is compelled by the States by way of
registration and disclosure, you need to think very hard
about professional assistance.
2 Rawle 7-8. In response, Armendariz agreed to seek counseling upon
his release from prison. The district court then sentenced
Armendariz to sixty months imprisonment and a $100 special
assessment, with zero years of supervised release. The court
explained that it declined to impose supervised release “because
the statutory minimum [prison sentence] in this case is more than
sufficient for all of the penological purposes of criminal law,
and there will be the secondary effects because of the nature of
the crime,” presumably referring to state sex-offender
-7-
registration requirements. 2 Rawle 10.
The government objected in open court to the lack of
supervised release, asserting that state sex-offender
registration alone was not an adequate substitute for the
mandatory counseling and monitoring that would be required under
the federal supervised release program. Noting the advisory
nature of the Guidelines after the Supreme Court’s decision in
United States v. Booker, 543 U.S. 220 (2005), the court then
cited additional reasons for its decision to “impose a sentence
that is slightly distinct from what [the Guidelines] otherwise
would have suggested,” emphasizing its disagreement with the
mandatory minimum prison sentence required under 18 U.S.C.
§ 2422(b):
[T]he United States Probation Office is not the only
resource. There are State, County, City programs and
there are the State registration and monitoring stuff and
it seems to me . . . it’s redundant and in absence of a
statutory minimum, this offense probably should bear a
short prison time and a long period of supervised
release, if I were making the policy, which I’m not. So
he gets the five years [of imprisonment].
2 Rawle 11.
The district court entered its final judgment on April 15,
2005. On May 10, 2005, the government timely filed a protective
notice of appeal under 18 U.S.C. § 3742(b) and FED. R. APP. P.
4(b)(1)(B)(i) to challenge the lack of supervised release in the
-8-
district court’s sentence.4
II. STANDARD OF REVIEW
In Booker, the Supreme Court struck down the mandatory
Guidelines regime, holding that the mandatory aspect of the
Guidelines sentencing scheme violated a defendant’s Sixth
Amendment right to a jury trial. Booker, 543 U.S. at 233-34; see
United States v. Mares, 402 F.3d 511, 518 (5th Cir. 2005).
Although the Guidelines are now advisory rather than mandatory,
under Booker, a district court still must calculate the
sentencing range under the Guidelines as a starting point and
consider it as one of many factors when selecting an appropriate
sentence. Booker, 543 U.S. at 260; Mares, 402 F.3d at 518. Even
post-Booker, we review the district court’s interpretation and
application of the Guidelines de novo. United States v.
Villegas, 404 F.3d 355, 359 (5th Cir. 2005). We will accept
findings of fact made in connection with sentencing unless
4
Before prosecuting the appeal of a sentence, the
government must obtain approval from the Attorney General, the
Solicitor General, or a deputy solicitor general. See 18 U.S.C.
§ 3742(b) (“The Government may not further prosecute such appeal
without the personal approval of the Attorney General, the
Solicitor General, or a deputy solicitor general designated by
the Solicitor General.”). To this end, the government has
submitted a memorandum approving this appeal, signed by the
Solicitor General and dated October 12, 2005. Although the
Solicitor General did not authorize this appeal until more than
five months after the government timely filed its notice of
appeal on May 10, 2005, the government has fully complied with
the § 3742(b) requirements. See United States v. Inv. Enters.,
Inc., 10 F.3d 263, 272 n.21 (5th Cir. 1993) (authorizing a
government appeal under § 3742(b) even when the Solicitor General
authorizes the appeal after the notice of appeal was filed).
-9-
clearly erroneous. United States v. Creech, 408 F.3d 264, 270
n.2 (5th Cir. 2005).
The Court in Booker directed appellate courts ultimately to
review all sentences for “unreasonableness.” Booker, 543 U.S. at
261; see United States v. Smith, 440 F.3d 704, 706 (5th Cir.
2006); United States v. Duhon, 440 F.3d 711, 714 (5th Cir 2006).
“Both a district court’s post-Booker sentencing discretion and
the reasonableness inquiry on appeal must be guided by the
sentencing considerations set forth in 18 U.S.C. § 3553(a).”
Smith, 440 F.3d at 706 (citing Booker, 543 U.S. at 261). The
§ 3553(a) factors include:
(1) the nature and circumstances of the offense and the
history and characteristics of the defendant;
(2) the need for the sentence imposed--
(A) to reflect the seriousness of the
offense, to promote respect for the law,
and to provide just punishment for the
offense;
(B) to afford adequate deterrence to criminal
conduct;
(C) to protect the public from further crimes
of the defendant; and
(D) to provide the defendant with needed
. . . medical care, or other correctional
treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range
established for--
(A) the applicable category of offense
committed by the applicable category of
defendant as set forth in the
guidelines . . .;
(5) any pertinent policy statement . . .;
(6) the need to avoid unwarranted sentence disparities
among defendants with similar records who have been
found guilty of similar conduct . . . .
18 U.S.C. § 3553(a) (2000); see Smith, 440 F.3d at 706.
-10-
Where, as here, a district court imposes a post-Booker non-
Guidelines sentence--that is, one that deviates either above or
below the relevant Guidelines sentence as opposed to departing
with reference to an applicable Guidelines departure provision--
we conduct our reasonableness review through an abuse-of-
discretion lens, paying particular attention to the specific
reasons given for deviating from the Guidelines.5 United States
v. Reinhart, 442 F.3d 857, 862 (5th Cir. 2006) (reasoning that
“if reasonableness review requires an abuse of discretion
standard for guideline sentences, the same should follow for non-
guideline sentences”); see also Mares, 402 F.3d at 519 n.7
(distinguishing a “non-Guidelines” sentence “from a Guidelines
sentence which includes a sentence that has been adjusted by
applying a ‘departure’ as allowed by the Guidelines”). We have
made clear that a district court imposing a non-Guidelines
sentence “must more thoroughly articulate its reasons” than when
it imposes a sentence authorized by the Guidelines. Smith, 440
F.3d at 707; Duhon, 440 F.3d at 715. Not only should these
reasons be “fact specific” to the case at hand, but they should
also be consistent with the totality of the relevant factors
5
As in Smith, 440 F.3d at 708 n.3, we treat the sentence
in this case as a non-Guidelines sentence. Because the district
court made reference neither to departing from the Guidelines nor
to the departure provisions of the Guidelines--indeed, as
discussed more fully below, it hardly made reference to the
Guidelines at all--“we do not examine whether [a] . . . departure
. . . was available under the Guidelines.” Id.
-11-
enumerated in § 3553(a). Smith, 440 F.3d at 707. Although
“[t]he court need not make ‘a checklist recitation of the section
3553(a) factors[,]’ . . . ‘the farther a sentence varies from the
applicable Guideline sentence, the more compelling the
justification based on factors in section 3553(a) must be.’”
Duhon, 440 F.3d at 715 (quoting Smith, 440 F.3d at 707 (internal
quotation marks and citation omitted)). A non-Guidelines
sentence unreasonably fails to reflect the totality of the
relevant § 3553(a) sentencing factors, and is therefore an abuse
of discretion, if it “(1) does not account for a factor that
should have received significant weight, (2) gives significant
weight to an irrelevant or improper factor, or (3) represents a
clear error of judgment in balancing the sentencing factors.”
Smith, 440 F.3d at 708 (citing United States v. Haack, 403 F.3d
997, 1004 (8th Cir. 2005)); see also Duhon, 440 F.3d at 715.
III. DISCUSSION
The sentencing colloquy reflects that, in imposing the
sentence at issue, the district court took into account
Armendariz’s history and characteristics, specifically his lack
of a criminal record and his steady employment history,
consistent with § 3553(a)(1). Although such considerations in
some cases might sufficiently support a sentence that does not
include supervised release, given the facts and the nature of the
crime in this case, the district court’s failure to impose
-12-
supervised release was unreasonable because it fails to account
for the totality of the relevant § 3553(a) factors. See Duhon,
440 F.3d at 715 (explaining that “[u]nder § 3553(a) . . . a
sentence must be supported by the totality of the relevant
statutory factors”); see also Reinhart, 442 F.3d at 864
(assessing “the district court’s justification in light of all
the § 3553(a) factors”).
Specifically, the sentence does not adequately account for
the following factors which should have received significant
weight: (1) the properly calculated sentence under the advisory
Guidelines and the pertinent policy statement in U.S.S.G.
§ 5D1.2(b), see 18 U.S.C. § 3553(a)(4)(A), (5); and (2) the need
for the sentence to afford adequate deterrence, to protect the
public from the defendant, and to provide the defendant with
needed correctional treatment. See id. § 3553(a)(2)(B)-(D).
A. Applicable Sentencing Guidelines Range and Pertinent Policy
Statement
As an initial matter, the district court did not adequately
consider the recommended Guidelines sentencing range as a factor
in imposing Armendariz’s sentence. See 18 U.S.C. § 3553(a)(4)
(listing the Guidelines “sentencing range” as a factor to be
considered in sentencing); see also Booker, 543 U.S. at 260
(noting that district courts are required “to take account of the
Guidelines together with other sentencing goals” under
§ 3553(a)); Mares, 402 F.3d at 519. Although the probation
-13-
officer correctly calculated the Guidelines sentencing range in
the PSR as sixty to seventy-one months imprisonment and a three-
year to life term of supervised release, it is unclear from the
sentencing transcript how much weight, if any, the district court
placed on the Guidelines range. Indeed, the district court did
not even mention the Guidelines or any provision thereof until
after it had announced Armendariz’s sentence and the government
objected to the lack of supervised release. Only then did it
note that it had, “after considering the Guidelines and their
advisory capacity, elected to impose a sentence that is slightly
distinct from what they otherwise would have suggested.” 2 Rawle
13. It did not, however, give a fact-specific explanation for
its decision to deviate significantly from the Guidelines range
with respect to the term of supervised release; rather, the court
merely imposed the mandatory minimum prison sentence without
reference to the Guidelines.
Additionally, in imposing zero years of supervised release,
the district court ignored the pertinent policy statement
contained in U.S.S.G. § 5D1.2(b)(2). See 18 U.S.C. § 3553(a)(5)
(listing “any pertinent policy statement” issued by the
Sentencing Commission as a factor to be considered in
sentencing). Although U.S.S.G. § 5D1.2(a)(1) notes that the
length of a term of supervised release imposed for a Class B
felony shall be “at least three years but not more than five
years,” § 5D1.2(b)(2) specifies that “the length of the term of
-14-
supervised release shall be not less than the minimum term of
years specified for the offense under subdivision[] (a)(1) . . .
and may be up to life, if the offense is . . . a sex offense.”
The policy statement that follows subsection (b)(2) further
suggests that “[i]f the instant offense of conviction is a sex
offense, however, the statutory maximum term of supervised
release is recommended.” The statutory maximum in Armendariz’s
case is a life term of supervised release. See 18 U.S.C.
§ 3583(b), (k); see also United States v. Allison, 447 F.3d 402,
407 (5th Cir. 2006) (noting that “the policy statement
recommending a life term of supervised release cannot be read in
a vacuum, as the policy statement is derived from the statutory
authority in 18 U.S.C. § 3583(k) and is consistent with
Congress’s intention to punish [sex offenders] with life terms of
supervised release because of the high rate of recidivism”).
Similar to its treatment of the Guidelines sentencing range, the
district court did not refer to or even acknowledge this policy
statement when it sentenced Armendariz without imposing a term of
supervised release.
Although “[d]eparture from the guidelines range . . . cannot
alone support a finding of unreasonableness after Booker,”
Reinhart, 442 F.3d at 864, the district court’s failure to
consider the Guidelines as a starting point for a reasonable
sentence is inconsistent with Booker’s directive to “take
account” of the Guidelines as one of many factors in an advisory-
-15-
Guidelines sentencing regime. See Booker, 543 U.S. at 260; see
also Smith, 440 F.3d at 707 (noting that, even under an advisory
regime, the Guidelines range must be a “frame of reference” for a
non-Guidelines sentence); Duhon, 440 F.3d at 716 (holding that
the district court’s miscalculation of the applicable Guidelines
range “deprives the sentence of ‘great deference’ and is a factor
to be considered in assessing the reasonableness of a sentence”).
Particularly because “the farther a sentence varies from the
applicable Guideline sentence, the more compelling the
justification based on factors in section 3553(a) must be,” the
district court’s failure to articulate fact-specific reasons with
reference to the Guidelines for its substantial deviation from
both the Guidelines sentencing range and the § 5D1.2(b)(2) policy
statement militates against a holding that the sentence was
reasonable. Smith, 440 F.3d at 707 (internal quotation marks and
citation omitted); Duhon, 440 F.3d at 717 (noting that, in
determining the reasonableness of a non-Guidelines sentence, the
district “court’s failure to take into account the Sentencing
Guidelines is significant”).
B. Need for Sentence to Afford Deterrence, Protect the Public,
and Provide Correctional Treatment
In addition to the failure of the district court’s sentence
to account for the Guidelines, the lack of supervised release
does not effectuate the statutory goals enumerated in 18 U.S.C.
-16-
§ 3553(a)(2)(B)-(D): the need to deter criminal conduct, protect
the public, and provide correctional treatment to the offender.
The district court addressed these considerations at length
during the sentencing hearing, describing the “statistically good
reasons” for continual supervision of pedophiles because of the
high rate of recidivism associated with child sex crimes. The
district court also repeatedly emphasized the need for Armendariz
to seek professional counseling after his release from prison to
address the “psychological component” of pedophilia and to help
prevent him from offending again. After articulating these
concerns, the district court announced that “supervised release
is not being imposed because the statutory minimum is more than
sufficient for all of the penological purposes of criminal law,”
later noting that “in absence of a statutory minimum, this
offense should probably bear a short prison time and a long
period of supervised release, if I were making the policy, which
I’m not.” 2 Rawle 10, 11. The district court also indicated that
the state sex-offender registration requirement was a sufficient
substitute for a term of supervised release. While the district
court correctly identified and was aware of the appropriate
relevant sentencing factors under § 3553(a)(2)(B)-(D), the
sentence that it imposed--five years imprisonment and no
supervised release--does not reflect these considerations.
Specifically, without federal supervised release, the
sentence provides no mechanism to ensure that Armendariz will
-17-
receive the supervision he needs upon his release from prison to
prevent the urge to recidivate and to address the psychological
component of the crime that the district court described. Under
the federal supervised release program, offenders must comply
with the mandatory reporting and notification provisions set
forth in 18 U.S.C. § 3563(a). Moreover, the district court would
have the authority to order Armendariz, as conditions of his
release, to undergo counseling, submit to travel restrictions,
report monthly to a probation officer, and permit a probation
officer to visit his home. 18 U.S.C. § 3563(b)(9), (14)-(17).
Furthermore, imposing some term of federal supervised
release in this case would be consistent with the intent of
Congress, as evidenced in 18 U.S.C. § 3583(k), which provides
that the authorized term of supervised release for a sex offense
involving a minor victim is “any term of years to life.” The
legislative history of § 3583(k) reveals that the enactment of
this statute providing a longer term of supervised release for
sex offenders was in response to the same concerns regarding the
offender’s potential for recidivism and need for counseling that
the district court voiced in Armendariz’s case:
This section responds to the long-standing concerns of
Federal judges and prosecutors regarding the inadequacy
of the existing supervision periods for sex offenders,
particularly for the perpetrators of child sexual abuse
crimes, whose criminal conduct may reflect deep-seated
aberrant sexual disorders that are not likely to
disappear within a few years of release from prison. The
current length of the authorized supervision periods is
not consistent with the need presented by many of these
-18-
offenders for long-term--and in some cases,
life-long-monitoring and oversight.
H.R. REP. NO. 108-66, at 49-50 (2003) (Conf. Rep.), reprinted in
2003 U.S.C.C.A.N. 683, 684; see also Allison, 447 F.3d at 405-06;
United States v. Moriarty, 429 F.3d 1012, 1025 (11th Cir. 2005).
In light of these well-founded concerns expressed both by the
district court in this case and by Congress, the district court’s
decision not to impose supervised release because, in its
estimation, the mandatory minimum prison sentence served “all of
the penological purposes of criminal law” was unreasonable. As
the Supreme Court has recognized, “[t]he objectives of supervised
release would be unfulfilled if excess prison time were to offset
and reduce terms of supervised release. Congress intended
supervised release to assist individuals in their transition to
community life. Supervised release fulfills rehabilitative ends,
distinct from those served by incarceration.” United States v.
Johnson, 529 U.S. 53, 59 (2000) (citing S. REP. NO. 98-225, at 124
(1983)).
Likewise, the district court’s belief that the state sex-
offender registration requirement was a sufficient substitute for
federal supervised release was unreasonable. In contrast with
federal supervised release, the Texas sex-offender registration
requirement does not provide rehabilitative resources, intensive
monitoring, or publicly funded postconfinement assistance.
Rather, sex offenders subject to the state registration
-19-
requirement merely need to provide their name and current address
to state authorities. See TEX. CODE CRIM. PROC. ANN. arts.
62.051(a),(d), 62.055(a) (West Supp. 2005)); see also Lutz v.
Texas, 184 S.W.3d 366, 367 (Tex. App.--Austin 2006) (“The [Texas]
sex offender registration program requires a person having a
reportable conviction to register with his local law enforcement
authority, periodically verify his registration, and report any
change of address.”). This registration requirement is not an
adequate substitute for the counseling and monitoring that can be
mandated under federal supervised release, particularly in light
of the heightened concern in sex offense cases with an offender’s
potential for recidivism.6
Especially in the case of a sex crime--and particularly for
one involving a child--the need for deterrence, protecting the
public, and providing the offender with necessary correctional
treatment are highly relevant factors that should have been
6
During the sentencing hearing, Armendariz agreed to seek
counseling on his own after his term of imprisonment; however,
the sentence that the district court imposed does not require him
to do so. Although he had a history of gainful employment, there
is no guarantee that Armendariz will return to a steady job and
have the means to obtain counseling after he is released from
prison. It is precisely this type of offender that supervised
release was designed to rehabilitate. See S. REP. NO. 98-225, at
124 (1983) (“[T]he primary goal [of supervised release] is to
ease the defendant’s transition into the community after the
service of a long prison term for a particularly serious offense,
or to provide rehabilitation to a defendant who has spent a
fairly short period in prison for punishment or other purposes
but still needs supervision and training programs after
release.”).
-20-
effectuated in the sentence that the district court imposed.
Because the sentence in this case fails to reflect any of these
statutory goals, and because the district court substantially
deviated from the advisory Guidelines range without articulating
valid, fact-specific reasons for doing so, the sentence is
unreasonable insofar as it lacks a term of supervised release.
See Duhon, 440 F.3d at 721 (holding that a sentence was
unreasonable where “the totality of the statutory sentencing
factors fails to reasonably support the court’s sentence”);
Smith, 440 F.3d at 708 (noting that a sentence is unreasonable
when it “does not account for a factor that should have received
significant weight”).
IV. CONCLUSION
Because the district court abused its discretion by imposing
an unreasonable sentence, we VACATE the sentence and REMAND to
the district court for resentencing consistent with this opinion.
-21-