U.S. v. Moran, No. 08-16987 Non-Argument Calendar.

• Citation: 573 F.3d 1132
• Decision Date: 01 July 2009
• Docket Number: No. 08-16987 Non-Argument Calendar.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Virgil Lee MORAN, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

573 F.3d 1132

UNITED STATES of America, Plaintiff-Appellee, v. Virgil Lee MORAN, Defendant-Appellant.

No. 08-16987 Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

July 1, 2009.

Katherine Earle Yanes, James E. Felman, Kynes, Markman & Felman, P.A., Tampa, FL, for Moran.

Patricia D. Barksdale, Jacksonville, FL, Michella Thresher Taylor, Linda Julin McNamara, Tampa, FL, for U.S.

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

Before BIRCH, HULL and PRYOR, Circuit Judges.

PRYOR, Circuit Judge:

This appeal presents an issue of first impression: whether a defendant is entitled to notice before a district court may impose special conditions of supervised release to address a defendant's proclivity to sexual misconduct when the crime of conviction did not involve sexual activity. Virgil Lee Moran, a convicted sex offender, was convicted of being a felon in possession of a firearm after officers discovered him living with his girlfriend and her minor daughter in violation of his terms of supervised release for an earlier conviction. Soon after officers discovered Moran in that residence, state officials charged him with failing to register as a sex offender. Moran argues that he was entitled to notice before the district court imposed special conditions of supervised release related to potential sexual misconduct. Moran also argues that there is no reasonable relationship between those special conditions and his conviction for being a felon in possession of a firearm. 18 U.S.C. §§ 922(g)(1), 924(e). In the light of the decision of the Supreme Court in Irizarry v. United States, ___ U.S. ___, 128 S.Ct. 2198, 171 L.Ed.2d 28 (2008), we conclude that no notice was necessary. We also conclude that the district court did not abuse its discretion in imposing the special conditions on Moran's supervised release. We affirm.

I. BACKGROUND

In 2003, Moran began a three-year term of supervised release following his conviction in 1998 for unlawfully transporting firearms and knowingly making false statements in the acquisition of those firearms. One year later, a confidential informant told Moran's probation officer that Moran was not living with his mother. Because Moran had failed to report a change of residence, the probation office obtained a warrant to search Moran's new residence. During the search, probation officers and agents of the Bureau of Alcohol, Tobacco, Firearms, and Explosives discovered among Moran's personal items a .25 caliber firearm.

Moran was indicted as a felon in possession of a firearm. The indictment alleged that Moran possessed a firearm following his conviction for three crimes: grand theft, committing a lewd and lascivious act on a child, and dealing in stolen property. Moran pleaded guilty to the possession charge without the benefit of a plea agreement.

The presentence investigation report stated that Moran was discovered by police living with his girlfriend and her minor daughter. State officials later charged Moran with failing to register as a sex offender living at that address. Fla. Stat. § 943.0435. The report mentioned that Moran had an outstanding arrest warrant for that offense.

The presentence report described, among the 23 arrests, charges, and convictions amassed by Moran, two convictions for sex-related crimes. In August 1994, Moran pleaded no contest to committing a lewd and lascivious act on a child under the age of sixteen and was sentenced to prison and sex offender counseling. The report stated that, while Moran's girlfriend was babysitting a four-year-old girl, Moran followed the child into a bathroom, placed her on a vanity, and inserted his finger into her vagina. Also in August 1994, Moran pleaded no contest to assault as a lesser-included offense of sexual assault. The report stated that Moran had forced the victim at knifepoint into his truck, where he beat, kicked, and raped her.

The presentence report also stated that Moran had been arrested in Florida on three occasions for sexual crimes against his wife and child. In January 1994, Moran was charged for the kidnapping, false imprisonment, and sexual assault of his wife, Tonia Moran, after she reported that Moran had used a knife to imprison and sexually assault her for two days. The charges were later dropped. In March 1994, Moran was charged for the sexual battery by force and aggravated battery of Tonia after she reported that Moran beat her, choked her, and forced her at knifepoint to have sex. Those charges were dropped as well. In October 1995, Moran was charged for sexual battery and committing a lewd and lascivious act on a child under the age of twelve after he allegedly sexually assaulted and beat his daughter. These charges were nol prossed.

Moran objected to the presentence report. Moran denied abusing his wife and child and argued that his sister-in-law had concocted the allegations. Moran requested the district court grant a downward departure because Moran possessed the firearm for self-protection. United States Sentencing Guideline § 5K2.12 (Nov.2004). Moran did not contest his conviction of a sex offense against a minor in 1994.

At the sentencing hearing, Moran testified that he possessed a firearm because his mother's neighbor had threatened to kill him. The district court accepted Moran's testimony "at face value," but commented that the threats "occurred ... because of your past history and the impression of that neighbor regarding your past history with regard to children." The district court remarked that Moran's "history at the age of 42[,] ... [his] conduct towards children, including a child at the age of four, ... [a]nd [his] continual activity of crime and sexual activity of people in varying ages is nothing to be proud of." The district court denied Moran's request for a downward departure.

The district court sentenced Moran to 63 months of imprisonment and three years of supervised release. In addition to the standard conditions of release, the district court imposed several special conditions of release. The special conditions required Moran to "participate in a mental health program specializing in sex-offender treatment"; register under the Sexual Offender Registration and Notification Act as a sex offender in "any state where he resides, visits, is employed, carries on a vocation, or is a student, as directed by his probation officer"; comply with instructions from his probation officer to provide state officials with information required by the Florida Sexual Predators Act, Fla. Stat. § 943.0435(2); refrain from "direct contact with minors under the age of 18 without the written approval of [his] probation officer and ... refrain from entering into any area where children frequently congregate, including schools, daycare centers, theme parks, and playgrounds, et cetera"; refrain from possessing, subscribing, or viewing "any video, magazines, or literature depicting children in the nude and/or in sexually explicit positions"; "not possess or use a computer with access to any online service at any location, including employment, without written approval from [his] probation officer"; and "submit to a search of his person, residence, place of business, any storage units under his control, computer or vehicle at a reasonable time in a reasonable manner based upon reasonable suspicion of contraband or evidence of a violation of a condition of release."

When the district court asked for objections, defense counsel stated that he had "a generalized objection, because [he was] not really prepared to respond to all of the sexual-offender conditions...." The district court responded that Moran could respond after a break for lunch. When the hearing resumed, defense counsel "advise[d] the Court that [he] hadn't ... previously been apprised that those were going to be the sanctions that would be imposed" and, even though he had not "specifically examined the statutes that might be behind those," he "couch[ed] an objection" based on the staleness of Moran's "sexual offense in 1994," his lack of recidivism, and the failure of the court earlier to "impose these kinds of conditions" for transporting firearms. Defense counsel argued that the "allegations that surfaced" regarding Moran's wife and child were "false accusations" and "came out to be unsubstantiated to the point where they didn't even prosecute him." Defense counsel also argued that the decision to impose the special conditions "on the basis of what happened in 1994 might subject [Moran] to unnecessary conditions of supervised release" and suggested as an alternative that Moran undergo "a mental evaluation and then treatment as necessary if someone, a professional, evaluates him and determines that" Moran "is some kind of a threat or has some sort of a problem to go forward."

The district court asked the probation officer for his opinion "with regard to the litany of restrictions." The probation officer responded that "the sex-offender treatment is dynamic" and that Moran "would be evaluated throughout the process" and could be released "[i]f at some point Mental-Health Treatment doesn't feel he needs the treatment...." The probation officer expressed concern that "the least [Moran] did was commit a lewd and lascivious act on a four-year-old child"; "recommend[ed] the sexual-offender treatment"; and agreed with the "rest of the other restrictions[.]" The district court overruled Moran's objection.

II. STANDARDS OF REVIEW

We review the imposition of special conditions of supervised release for abuse of discretion. United States v. Taylor, 338 F.3d 1280, 1283 (11th Cir.2003). "We will reverse only if we have a `definite and firm conviction that the [district] court committed a clear error of judgment in the conclusion it reached.'" Id. (quoting Davenport Recycling Assocs. v. Comm'r of Internal Revenue, 220 F.3d 1255, 1258 (11th Cir.2000)). Objections not raised in ...