U.S. v. Begay
| Citation | 631 F.3d 1168 |
| Decision Date | 07 February 2011 |
| Docket Number | No. 10–2068.,10–2068. |
| Parties | UNITED STATES of America, Plaintiff–Appellee,v.Toby BEGAY, Defendant–Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
OPINION TEXT STARTS HERE
Joseph W. Gandert, Assistant Federal Public Defender, Albuquerque, NM, for Defendant–Appellant.Shana B. Pennington, Assistant United States Attorney, (Kenneth J. Gonzales, United States Attorney, with her on the brief), Albuquerque, NM, for Plaintiff–Appellee.Before BRISCOE, Chief Judge, MURPHY and MATHESON, Circuit Judges.BRISCOE, Chief Judge.
Defendant/Appellant Toby Begay, a convicted sex offender, appeals the district court's modification of the conditions of his supervised release to include clinical polygraph testing. Title 18 U.S.C. § 3583(e)(2) sets forth the conditions and procedures under which a district court may modify conditions of supervised release. Begay argues that a district court does not have authority to modify conditions of supervised release pursuant to 18 U.S.C. § 3583(e)(2) unless the government can justify the modification by showing that circumstances have changed since the original sentencing. He also argues that clinical polygraph testing is not a valid special condition of supervised release in his case. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
Begay sexually abused a minor child and subsequently, in 1995, he threatened to kill his family and himself after the abuse was reported. These incidents took place within the Navajo Nation. Begay pled guilty to one count of aggravated sexual abuse of a child in violation of 18 U.S.C. §§ 2241(c) and 2246(2)(C); three counts of assault with a dangerous weapon with intent to do bodily harm in violation of 18 U.S.C. § 113(a)(3); one count of using a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c); and one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Supp. ROA at 1, 8.
Begay was sentenced on September 27, 1996 to 196 months' imprisonment and sixty months' supervised release. Id. At the time of sentencing, the district court imposed the standard conditions of supervised release, as well as three special conditions: Begay was ordered to participate in a substance abuse treatment program, prohibited from possessing or consuming alcohol, and ordered “to participate in a sex offender treatment program as directed and approved by the U.S. Probation Office.” Id. at 4.
At the end of his term of imprisonment, Begay was released to a halfway house. Begay had not violated any of the conditions of his supervised release, and he was complying with the rules of the halfway house. Nonetheless, in anticipation of Begay's return to the Navajo Nation in March 2010, the United States Probation Office (USPO) filed a motion to add more special conditions of supervised release, namely: a waiver of confidentiality regarding mental health treatment; submission to sex offender treatment and risk assessment testing, including “clinical polygraph testing and other specific sex offender tests, as directed by the probation officer”; prohibition of sexually explicit material or child pornography; submission to reasonable searches of person, property, vehicles, business, computers and residence; prohibition on contact with children under eighteen without prior written permission of the probation officer; and prohibition on contact with the victims. ROA, Vol. 1 at 4–5 (emphasis omitted). The government explained the purpose of the polygraph testing requirement as follows: Id. at 6.
Begay agreed to all of the proposed additional conditions, except for the polygraph testing condition. He argued that the district court did not have the authority to impose the polygraph condition because there were no changed circumstances warranting modification, and the district court could not add a new condition simply because it thought that polygraph testing was a good idea. He also argued that polygraph testing was not a valid condition of supervised release because it is unreliable and could be used as a ruse to manipulate the supervisee. After a hearing, the district court granted the USPO's motion and imposed all of the requested additional special conditions of supervised release, including the polygraph testing condition.
We review the district court's interpretation of a statute de novo, United States v. Romero, 122 F.3d 1334, 1337 (10th Cir.1997), and the district court's decision to impose special conditions of supervised release for abuse of discretion, United States v. Smith, 606 F.3d 1270, 1282 (10th Cir.2010).
Begay argues that changed or unforeseen circumstances must exist before the district court has the authority to modify conditions of supervised release. Title 18 U.S.C. § 3583(e)(2) provides district courts authority to “modify, reduce, or enlarge the conditions of supervised release, at any time prior to the expiration or termination of the term of supervised release....” It is clear from the language of the statute that a district court has authority to modify conditions of supervised release after considering certain 18 U.S.C. § 3553(a) factors. Although Begay asks us to interpret the statute to limit the district court's authority to modify special conditions of supervised release to only those cases where the government can show a change in circumstances, we refuse to impose that limitation on the district court's authority.
“[A]fter considering the factors set forth in [18 U.S.C.] section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7),” 1 a district court may:
(1) terminate a term of supervised release and discharge the defendant released at any time after the expiration of one year of supervised release, pursuant to the provisions of the Federal Rules of Criminal Procedure relating to the modification of probation, if it is satisfied that such action is warranted by the conduct of the defendant released and the interest of justice;
(2) extend a term of supervised release if less than the maximum authorized term was previously imposed, and may modify, reduce, or enlarge the conditions of supervised release, at any time prior to the expiration or termination of the term of supervised release, pursuant to the provisions of the Federal Rules of Criminal Procedure relating to the modification of probation and the provisions applicable to the initial setting of the terms and conditions of post-release supervision;
(3) revoke a term of supervised release, and require the defendant to serve in prison all or part of the term of supervised release authorized by statute for the offense that resulted in such term of supervised release without credit for time previously served on postrelease supervision, if the court, pursuant to the Federal Rules of Criminal Procedure applicable to revocation of probation or supervised release, finds by a preponderance of the evidence that the defendant violated a condition of supervised release;
....
18 U.S.C. § 3583(e). The Rule of Criminal Procedure relating to the modification of conditions of probation or supervised release, Fed.R.Crim.P. 32.1(c), requires the district court to hold a pre-modification hearing unless such a hearing is waived or the modifications are unopposed and are favorable to the defendant.2
By its terms, subsection (e)(2) of 18 U.S.C. § 3583 does not require a district court to make particular findings—such as a finding of changed circumstances—prior to modifying the terms of supervised release. In contrast, subsections (e)(1) and (e)(3) do require more specific determinations. Pursuant to subsection (e)(1), a district court may terminate a term of supervised release only “if it is satisfied that such action is warranted by the conduct of the defendant released and the interest of justice....” 18 U.S.C. § 3583(e)(1). Pursuant to subsection (e)(3), a district court may revoke a term of supervised release only “if the court ... finds by a preponderance of the evidence that the defendant violated a condition of supervised release....” 18 U.S.C. § 3583(e)(3).
When compared to subsections (e)(1) and (e)(3), there is no clause in subsection (e)(2) which requires the district court to make additional findings before it can modify conditions of supervised release. Although Congress required certain findings prior to termination or revocation of supervised release, it did not require such findings prior to modification. The only statutory requirements for modification are that the district court consider the listed § 3553(a) factors, follow the procedure outlined in Fed.R.Crim.P. 32.1, and ensure that the modified conditions are consistent with the requirements applicable to all conditions of supervised release.
Relying on the language of 18 U.S.C. § 3583(e)(2), the Eighth Circuit has held that a district court is not required to find changed circumstances in order to modify conditions of supervised release. In United States v. Davies, 380 F.3d 329 (8th Cir.2004), the government sought the district court's approval of its proposed addition of an alcohol and drug abuse treatment condition two months after Davies's supervised release began. The district court imposed the new condition based only on information in the presentence report, and not on any new information obtained after the original sentencing. Id. at 331–32. The Eighth Circuit held that:
A district court may modify the conditions imposed on a term of supervised release even when, as in the present case, the modification is based only on evidence that was available at the original sentencing. This is because the statute that authorizes district courts to modify the...
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