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Sealed Appellee v. Sealed Appellant

United States Court of Appeals, Fifth Circuit

July 30, 2019

SEALED APPELLEE, Plaintiff-Appellee,
v.
SEALED APPELLANT, Defendant-Appellant.

          Appeal from the United States District Court for the Western District of Texas

          Before SMITH, WIENER, and ELROD, Circuit Judges.

          JERRY E. SMITH, CIRCUIT JUDGE

         Appellant appeals his sentence, challenging two special conditions and the substantive reasonableness of the sentence. We affirm as modified.

         I.

         Appellant pleaded guilty of conspiring to possess with intent to distribute 500 grams or more of cocaine. The presentence investigation report ("PSR") calculated the total offense level as 31 and Appellant's criminal history category as IV. That criminal history included convictions of sexual assault on a child and attempted sexual assault on a child.[1]

         The PSR recommended special conditions of supervised release, including these:

a) The defendant shall participate in a sex offense-specific assessment. The defendant shall pay the costs of the program if financially able.
The defendant is required to register as a Sex Offender. A sex offense-specific assessment is recommended to determine if the defendant is still a danger to the community.
b) The defendant shall participate in a sex offense-specific treatment program and submit to periodic polygraph testing at the discretion of the probation officer as a means to ensure compliance with the requirements of supervision or the treatment program. The defendant shall follow the rules and regulations of the program. The probation officer will supervise the defendant's participation in the program (provider, location, modality, duration, intensity, etc). The defendant shall pay the costs of the program if financially able.
The defendant is required to register as a Sex Offender. Should the sex offense-specific assessment determine the defendant is still a danger to the community, the defendant shall participate in a sex offense-specific treatment program as described in the condition.

         The government moved for a three-level downward departure under U.S.S.G. § 5K1.1 based on Appellant's having provided substantial assistance; the government stated that it would not oppose a three-level downward variance in light of Appellant's age and medical conditions. The district court granted the § 5K1.1 motion.

         II.

         The district court granted Appellant's objection to a two-point criminal history score increase under § 4A1.1(d) and implicitly granted his request for a three-level downward variance. Based on a total offense level of 25 and a criminal history category of III, the court calculated a guideline range of 70 to 87 months' imprisonment and sentenced Appellant to 72 months' incarceration and 5 years' supervised release.

         The court imposed, among others, the following special conditions of supervised release:

You will be ordered to participate in a sex offense specific assessment. You will be ordered to pay the costs of that program if you are financially capable of doing so. You will be responsible for some, all or none of the costs depending upon circumstances. You will be ordered to register as a sex offender, a sex specific -- sex offense specific assessment is recommended to determine if you are still a danger to the community.
Additionally, you will be ordered to participate in a sex offense specific treatment program and submit to periodic polygraph testing. You're to follow the rules and regulations of that program.
I am ordering the probation office to supervise the Defendant's participation in the program as it relates to the provider, location, modality, duration, intensity. And, again, the costs will be income dependent.

         Appellant objected to the special condition requiring him to register as a sex offender but did not object to the assessment or treatment conditions. The court overruled the objection.

         The written judgment's formulation of the special conditions differed from that of the oral pronouncement:

The defendant shall participate in a sex offense-specific assessment. The defendant must pay the costs of the program if financially able.
The defendant shall participate in a sex offense-specific treatment program and submit to periodic polygraph testing at the discretion of the probation officer as a means to ensure compliance with the requirements of supervision or the treatment program. The defendant shall follow the rules and regulations of the program. The probation officer will supervise the defendant's participation in the program (provider, location, modality, duration, intensity, etc.). The defendant shall pay the costs of the program if financially able.
The defendant is required to register as a Sex Offender. A sex-offense specific assessment is recommended to determine if the defendant is still a danger to the community. Should the sex-offense-specific assessment determine that the defendant is still a danger to the community, the defendant shall participate in a sex offense-specific treatment program as described in the condition.

         On appeal, Appellant challenges (1) the assessment and treatment conditions and (2) the substantive reasonableness of the sentence. First, he asserts that the district court plainly erred in imposing the contested special conditions because they are not reasonably related to his history and characteristics, they impose a greater deprivation of liberty than is reasonably necessary to advance deterrence, protect the public from him, and advance his correctional needs, and the error affects his substantial rights. He further maintains that the court impermissibly delegated judicial authority by making the treatment condition contingent on whether the assessing therapist deems him a danger to ...


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