U.S. v. Weatherton

• Decision Date: 01 May 2009
• Docket Number: No. 08-30542.,08-30542.
• Citation: 567 F.3d 149
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bobby J. WEATHERTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

567 F.3d 149

UNITED STATES of America, Plaintiff-Appellee, v. Bobby J. WEATHERTON, Defendant-Appellant.

No. 08-30542.

United States Court of Appeals, Fifth Circuit.

May 1, 2009.

Richard Lewis Bourgeois, Jr., Baton Rouge, LA, for U.S.

Rebecca L. Hudsmith, Fed. Pub. Def., Lafayette, LA, for Weatherton.

Appeal from the United States District Court for the Middle District of Louisiana.

Before REAVLEY, DAVIS and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

Bobby J. Weatherton appeals the sentence imposed by the district court following the revocation of his probation. He argues that the district court plainly erred in imposing special conditions of supervised release which require him to undergo psychosexual evaluation and potential treatment and which restrict his possession of sexually explicit materials. We affirm.

I.

In April 2006, Bobby J. Weatherton pleaded guilty to making a false claim to the Federal Emergency Management Agency (FEMA) following Hurricane Katrina. According to the presentence report (PSR), Weatherton was convicted of forcible rape and aggravated burglary in 1979 and was sentenced to 35 years' imprisonment. He was released from imprisonment in 2002. Weatherton was sentenced to three years of probation for FEMA fraud. This probation was subject to several conditions including, inter alia, that he not commit another federal, state, or local crime; that he report to the probation officer; and that he notify the probation officer at least ten days prior to any change in residence or employment. In August 2007, the probation office petitioned the district court for a warrant for Weatherton's arrest, alleging that Weatherton had violated the conditions of his probation. The petition alleged that (1) a warrant for Weatherton's arrest had been issued for attempted first degree murder, aggravated kidnaping, and aggravated rape; (2) Weatherton failed to report to his probation officer and that his whereabouts were unknown; and (3) Weatherton failed to notify his probation officer of his current address.

At a probation revocation hearing, Weatherton stipulated to the second and third violations. The first violation, which involved a pending state charge, was dismissed from the petition. The district court revoked Weatherton's probation and sentenced him to three months' imprisonment and two years of supervised release. The court further ordered that Weatherton comply with numerous conditions of supervised release, including that he register as a sex offender, undergo a psychosexual evaluation and any necessary treatment, and that he not possess any sexually explicit materials as defined in 18 U.S.C. § 2256(2). Weatherton offered no objection to the district court's sentence. Weatherton timely appealed.

II.

Pursuant to Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007), "this court must ensure the district court committed no significant procedural error. If the imposition of the imprisonment term is procedurally sound, this court then considers the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard." United States v. Rodriguez, 558 F.3d 408, 411-12 (5th Cir.2009) (quotations omitted). Weatherton does not challenge the sentencing procedure. Generally, the "the appropriate standard by which to review conditions of supervised release, which are part of the sentencing decision is a deferential abuse-of-discretion standard, pursuant to Gall." Id. at 412. However, because Weatherton did not object to the imposition of the special conditions in the district court, we review for plain error only. See United States v. Talbert, 501 F.3d 449, 452 (5th Cir.2007); see also Fed. R.Crim.P. Rule 52(b) ("A plain error that affects substantial rights may be considered even though it was not brought to the court's attention."). As the Supreme Court recently reiterated, there are four steps, or prongs, to "plain-error review" under Rule 52(b):

First, there must be an error or defect —some sort of deviation from a legal rule—that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant's substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the district court proceedings. Fourth and finally, if the above three prongs are satisfied, the court of appeals has the discretion to remedy the error—discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings. Meeting all four prongs is difficult, as it should be.

Puckett v. United States, ___ U.S. ___, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266, 275 (2009) (quotations omitted).

III.

Weatherton first argues that the district court plainly erred in requiring, as special conditions of his supervised release, that Weatherton undergo psychosexual evaluation and any necessary treatment and not possess sexually explicit materials. A district court may impose any condition of supervised release "it considers to be appropriate" so long as certain requirements are met. 18 U.S.C. § 3583(d). First, the condition must be "reasonably related" to one of four factors:¹ (1) the nature and characteristics of the offense and the history and characteristics of the defendant, (2) the deterrence of criminal conduct, (3) the protection of the public from further crimes of the defendant, and (4) the provision of needed educational or vocational training, medical care, or other correctional treatment to the defendant. Id. §§ 3583(d)(1), 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D). Second, the condition cannot impose any "greater deprivation of liberty than is reasonably necessary" to advance deterrence, protect the public from the defendant, and advance the defendant's correctional needs. See id. §§ 3583(d)(2), 3553(a)(2)(B), (a)(2)(C), (a)(2)(D). Finally, the condition must be consistent with the policy statements issued by the Sentencing Commission. Id. § 3583(d)(3).

Weatherton contends that the conditions in question are not reasonably related to his FEMA fraud conviction, that his 1979 rape conviction is insufficient to support the need for the conditions, and that his 2007 arrest warrant cannot provide a basis for the conditions because it is an unsubstantiated allegation which the government abandoned as a basis for revocation. Because district courts must consider the defendant's history and characteristics, they may take into account "a defendant's prior conviction for a sex offense when imposing sex-offender-related special conditions when the underlying conviction is for a non-sexual offense." United States v. Deleon, 280 Fed.Appx. 348, 351 (5th Cir.2008); see United States v. Dupes, 513 F.3d 338, 344 (2d Cir.2008) (upholding sex-offender related special conditions as part of sentence for securities fraud where they were reasonably related to defendant's "history and characteristics as a sex offender, his need for treatment, and the public's need for protection from him"); see also United States v. Prochner, 417 F.3d 54, 63 (1st Cir.2005) ("[T]he fact that the special condition of sex offender treatment is not related to the crime of conviction does not, by itself, render the condition invalid.").² Moreover, we have previously held in an unpublished opinion that a sentencing court may consider charged criminal behavior of the defendant even in the absence of a conviction if the defendant admitted the behavior or the information was derived from a reliable source. See Deleon, 280 Fed.Appx. at 351 (holding that district court did not abuse its discretion or plainly err in considering defendant's indictment for aggravated sexual assault of a child where the information was contained in the PSR and the defendant failed to state that he did not commit the offense); see also U.S.S.G. § 6A1.3(a) ("In resolving any dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy."); Rodriguez, 558 F.3d at 412 ("Title 18 of the United States Code, section 3661 ... provides `[n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.'"); United States v. Kingsley, 241 F.3d 828, 833 n. 7 (6th Cir.2001) ("[P]rior criminal behavior by the defendant, which, as in the case sub judice, the defendant did not deny during his sentencing proceeding, and/or which was supported by information derived from a reliable source, is relevant to sentencing, even if that prior criminal conduct did not lead to a criminal conviction.").

The record shows that the district court was aware of both Weatherton's "lengthy history" and the state warrant for Weatherton's arrest. Although Weatherton describes the warrant for his arrest as an "unsubstantiated allegation," the petition for revocation contains a reasonably detailed account of the alleged crime,³ and in light of Weatherton's apparent flight and his failure to deny having committed the crime either before the district court or on appeal, we cannot say that the warrant plainly lacked sufficient indicia of reliability. Cf. Rodriguez, 558 F.3d at 414 ("Notably, Rodriguez does not deny he sexually assaulted the fifteen-year-old girl. He merely points out the procedural posture of the pending charge, and offers nothing more than conclusory assertions to rebut the reliability of the PSR. Thus, he has not met his burden of demonstrating the information in the...