U.S. v. Carter

• Citation: 463 F.3d 526
• Decision Date: 18 September 2006
• Docket Number: No. 05-6129.,05-6129.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Larry W. CARTER, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

463 F.3d 526

UNITED STATES of America, Plaintiff-Appellee, v. Larry W. CARTER, Defendant-Appellant.

No. 05-6129.

United States Court of Appeals, Sixth Circuit.

Argued: July 25, 2006.

Decided and Filed: September 18, 2006.

ARGUED: Richard C. Strong, Office of the Federal Public Defender for the Western District of Tennessee, Memphis, Tennessee, for Appellant. Richard Leigh Grinalds, Assistant United States Attorney, Jackson, Tennessee, for Appellee. ON BRIEF: M. Dianne Smothers, Office of the Federal Public Defender for the Western District of Tennessee, Memphis, Tennessee, for Appellant. James W. Powell, Assistant United States Attorney, Jackson, Tennessee, for Appellee.

Before: MOORE, CLAY, and GRIFFIN, Circuit Judges.

MOORE, J., delivered the opinion of the court, in which CLAY, J., joined.

GRIFFIN, J. (p. 533), delivered a separate opinion concurring in the result.

OPINION

KAREN NELSON MOORE, Circuit Judge.

Defendant-Appellant Larry W. Carter appeals the imposition of a special supervised-release condition mandating sex-offender treatment. Carter challenges the condition on the ground that it is not reasonably related to either his instant conviction of being a felon in possession of a firearm or his convictions for sex offenses committed in 1988. Carter also challenges one aspect of the treatment program — polygraph testing — on the ground that it violates his Fifth Amendment privilege against compelled self-incrimination.

Because Carter's instant conviction is not a sex offense and Carter's prior convictions are either too remote in time or not clearly sexual in nature, we VACATE the special condition. We instruct the district court on REMAND to determine whether Carter's 2004 stalking conviction is sexual in nature and therefore provides an independent basis for the special condition. This resolution makes it unnecessary to address the Fifth Amendment challenge.

I. BACKGROUND

In 2001, Carter pleaded guilty to being a convicted felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). After the sentence initially imposed was reversed for reasons not relevant here, see United States v. Carter, 60 F. App'x 601 (6th Cir.2003) (per curiam) (unpublished opinion), Carter was resentenced in 2003 to thirty months' imprisonment and three years' supervised release. The sentence included the following special condition of supervised release: "The defendant shall participate as directed in a program of mental health treatment approved by the Probation Officer." Joint Appendix ("J.A.") at 15 (Judgment at 4). Carter's supervised-release term commenced on September 19, 2003.

On September 29, 2004, Carter admitted to violating the standard supervised-release conditions barring him from committing another crime or associating with a convicted felon without his probation officer's permission. The district court revoked Carter's supervised release and imposed a sentence of twelve months' imprisonment and two years' supervised release. The district court reimposed the same supervised-release conditions, including the special condition of mental-health treatment quoted above.

In May 2005, the government petitioned the district court to modify the special condition. The proposed new condition provided:

The defendant shall participate as directed in a program of mental health treatment, including a sexual offender treatment program and evaluation, as approved by the Probation Officer. The defendant shall abide by the rules, requirements, and conditions of the treatment program, including submitting to polygraph testing, to aid in the treatment and supervision process.

J.A. at 25 (Petition for Warrant or Summons for Offender Under Supervision). Carter filed an objection on the ground that the modified condition was inconsistent with the statutory requirements governing the imposition of special supervised-release conditions. At the subsequent hearing on the modification petition, Carter objected on Fifth Amendment grounds to the portion of the condition mandating polygraph testing. After the hearing, the district court granted the government's modification petition.¹ Carter now appeals.

II. ANALYSIS

A. Standard of Review

We review the imposition of a supervised-release condition for abuse of discretion. United States v. Ritter, 118 F.3d 502, 504 (6th Cir.1997). "Abuse of discretion is defined as a definite and firm conviction that the trial court committed a clear error of judgment. A district court abuses its discretion when it relies on clearly erroneous findings of fact, or when it improperly applies the law or uses an erroneous legal standard." United States ex rel. A+ Homecare, Inc. v. Medshares Mgmt. Group, Inc., 400 F.3d 428, 450 (6th Cir.) (internal quotation marks omitted), cert. denied, ___ U.S. ___, 126 S.Ct. 797, 163 L.Ed.2d 630 (2005).

B. Sex Offender Treatment

We review the imposition of a special condition of supervised release along two dimensions. One dimension is procedural: "`The [district] court, at the time of sentencing, [must] state in open court the reasons for its imposition of the particular sentence,' including its rationale for mandating special conditions of supervised release."² United States v. Kingsley, 241 F.3d 828, 836 (6th Cir.) (quoting 18 U.S.C. § 3553(c)), cert. denied, 534 U.S. 859, 122 S.Ct. 137, 151 L.Ed.2d 90 (2001). Carter does not challenge the procedural aspect of the imposition of the special condition, and in any event the district court did in fact state its reasons at the modification hearing.

Carter's attack is instead directed at the second, substantive dimension along which we review special supervised-release conditions. We have said, "This Circuit mandates that where a condition of supervised release is reasonably related to the dual goals of probation, the rehabilitation of the defendant and the protection of the public, it must be upheld." United States v. Bortels, 962 F.2d 558, 560 (6th Cir.1992) (per curiam). This statement was an oversimplification, as the statutory requirements are actually more detailed. A sentencing court may impose a non-mandatory condition of supervised release³ only if it meets three requirements. First, the condition must be "reasonably related to" several sentencing factors. 18 U.S.C. § 3583(d)(1). These factors are "the nature and circumstances of the offense and the history and characteristics of the defendant" and "the need for the sentence imposed ... to afford adequate deterrence to criminal conduct; ... to protect the public from further crimes of the defendant; and ... to provide the defendant with needed educational or vocational training, medical care or other correctional treatment in the most effective manner." 18 U.S.C. § 3553(a)(1), (a)(2)(B)-(D). Second, the condition must "involve[] no greater deprivation of liberty than is reasonably necessary for" several sentencing purposes. 18 U.S.C. § 3583(d)(2). These purposes are "to afford adequate deterrence to criminal conduct; ... to protect the public from further crimes of the defendant; and ... to provide the defendant with needed educational or vocational training, medical care or other correctional treatment in the most effective manner." 18 U.S.C. § 3553(a)(2)(B)-(D). Third, the condition must be "consistent with any pertinent policy statements issued by the Sentencing Commission." 18 U.S.C. § 3583(d)(3). See Kingsley, 241 F.3d at 836-37 (reviewing these detailed requirements); Ritter, 118 F.3d at 504 (same).⁴ Because they are written in the conjunctive, a condition must satisfy all three requirements. See 18 U.S.C. § 3583(d)(1)(3). However, a condition need not satisfy every single factor and purpose within each of the first two requirements. See United States v. Johnson, 998 F.2d 696, 699 (9th Cir.1993).

Carter basically argues that the special condition is not "reasonably related" to either "the nature and circumstances of the offense" or "the history and characteristics of the defendant," 18 U.S.C. §§ 3553(a)(1), 3583(d)(1), and therefore constitutes a "greater deprivation of liberty than is reasonably necessary," id. § 3583(d)(2), to achieve the sentencing purposes of deterrence, protection of the public, and rehabilitation of the defendant, id. § 3553(a)(2)(B)-(D).⁵ We first address whether the special condition is reasonably related to "the nature and circumstances of the offense," id. § 3553(a)(1), which in this case is being a felon in possession of a firearm. Of course, the offense on its face has nothing to do with sex. See 18 U.S.C. § 922(g)(1). Moreover, being a felon in possession of a firearm is not a sex offense as defined by the Guidelines for purposes of supervised release. See U.S. SENTENCING GUIDELINES MANUAL § 5D1.2 cmt. n. 1 (2003). Finally, being a felon in possession is no more sexual in nature than other offenses that courts have concluded are not reasonably related to sex-offender conditions. See United States v. Scott, 270 F.3d 632, 636 (8th Cir.2001) (explaining that sex-offender conditions "bear no reasonable relationship to" the crime of armed bank robbery); United States v. T.M., 330 F.3d 1235, 1237, 1240 (9th Cir.2003) (implying that sex-offender conditions did "not relate to the offense" of conspiracy to distribute and possess marijuana). Cf. United States v. Modena, 302 F.3d 626, 629, 636 (6th Cir. 2002) (where drug- and alcohol-related conditions were imposed, observing that "[n]either alcohol nor drug use played a role in [the instant] crime" of conspiracy to defraud the United States), cert. denied, 537 U.S. 1145, 123 S.Ct. 950, 154 L.Ed.2d 845 (2003). Thus, we conclude that Carter is correct that a sex-offender-treatment condition is not reasonably related to being a felon in possession of a firearm. Indeed, the government concedes as much. Appellee Br. at 4.

We next address whether the special condition is reasonably related to "the history and characteristics of the defendant." 18...