U.S. v. Mike

Decision Date17 February 2011
Docket NumberNo. 09–2230.,09–2230.
PartiesUNITED STATES of America, Plaintiff–Appellee,v.Adrian MIKE, Defendant–Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

OPINION TEXT STARTS HERE

Joseph W. Gandert, Assistant Federal Public Defender (Michael A. Keefe, Assistant Federal Public Defender, on the briefs) Albuquerque, NM, for DefendantAppellant.David N. Williams, Assistant United States Attorney (Kenneth J. Gonzales, United States Attorney, with him on the brief) Albuquerque, NM, for PlaintiffAppellee.Before BRISCOE, Chief Circuit Judge, HOLLOWAY, Circuit Judge, and MELGREN, District Judge.*MELGREN, District Judge.

In 2009, Appellant Adrian Mike pled guilty to the charge of assault resulting in serious bodily injury. Following his plea, the district court sentenced Mike to two years of imprisonment and three years of supervised release. Because Mike had committed a sex offense in 1997, the court imposed, in addition to the standard conditions of supervised release, the district's standard supervised release conditions for sex offenders, as well as a number of special conditions of supervision. Mike objected to the imposition of some of these conditions. The court overruled most of Mike's objections and Mike appeals that decision. We have jurisdiction under 28 U.S.C. § 1291, and AFFIRM in part, REVERSE in part, and REMAND to the district court for further proceedings consistent with this opinion.

I. BACKGROUND

On August 28, 2006, Mike assaulted a 74 year-old man in whose home he had been drinking. The assault occurred after the victim returned home and discovered that Mike and several of his relatives were drunk. According to Mike, the victim placed his hands on Mike's neck and ordered Mike to leave his home. In response, Mike shoved the victim to the floor, which resulted in the victim sustaining a fractured pelvis, fractured shoulder, and fractured wrist.

A grand jury returned an indictment against Mike, charging him with assault resulting in serious bodily injury, in violation of 18 U.S.C. §§ 113(a)(6) and 1153. Mike pled guilty to the indictment pursuant to the terms of a Rule 11(c)(1)(C) plea agreement to a term of twenty-four months of imprisonment and three years of supervised release.

At sentencing, the court sentenced Mike to twenty-four months of imprisonment and three years of supervised release. In addition to the standard conditions of supervised release, which include a condition requiring the defendant to inform third parties of his criminal record, the court imposed the district's standard sex offender conditions in light of the fact that Mike had committed a sex offense in 1997. These include the following conditions: (1) the defendant shall not possess any sexually explicit materials; (2) the defendant shall submit to search of person, property, vehicles, business, computers, and residence, to be conducted in a reasonable manner and at a reasonable time, for the purpose of detecting sexually explicit materials; (3) the defendant shall immediately undergo a psychosexual evaluation upon release and begin participating in sex offender treatment, consistent with the recommendations of the psychosexual evaluation, and furthermore, the defendant shall submit to clinical polygraph testing and any other specific sex offender testing, as directed by the probation officer; and (4) the defendant shall participate in a mental health program as directed by the probation officer which may include taking prescribed medication.

In addition to the standard sex offender conditions, the court ordered that the following special conditions be imposed: (1) the defendant must participate in a substance abuse treatment program, which may include drug testing, outpatient counseling, or residential placement; (2) the defendant may not engage in an occupation where he has access to children without prior approval from his probation officer; (3) the defendant must not have contact with children under the age of eighteen, and if such contact does occur, the defendant must report it to the probation officer; (4) the defendant must participate in a mental health program, which may include outpatient counseling, residential placement, or prescribed medication as approved by the probation officer; (5) the defendant may not loiter within 100 feet of a place used primarily by children under the age of eighteen; (6) the defendant may not volunteer for activities where he will be supervising children or adults with mental or physical disabilities; and (7) the defendant may not possess or use a computer or other related hardware without approval by the probation officer.

Mike objected to the imposition of the standard sex offender conditions. Mike contended that these conditions should not be imposed because they were not related to the present offense and were not reasonably related to the goals of deterrence, public protection, or rehabilitation. The court admitted that it had never faced the issue of having to sentence a prior sex offender for a non-sex offender crime, and asked the parties to brief the matter. The court indicated that it would refrain from filing judgment until the issue was resolved.

In his brief to the court, Mike objected to the following six conditions: (1) the condition mandating sex offender treatment and testing; (2) the condition that he have no contact with children; (3) the condition prohibiting him from engaging in an occupation with access to children; (4) the condition barring him from loitering in any place children may be; (5) the condition limiting the types of activities he could volunteer for; and (6) the condition declaring that he is not to possess or use a computer. The court overruled Mike's objections to the first five conditions, but sustained his objection to the last condition. The court held that the first five conditions were consistent with a sentence that was sufficient, but not greater than necessary, to protect the public from further crimes committed by Mike and to provide Mike with correctional treatment in the most effective manner possible. The court reached these conclusions because both of Mike's crimes involved a violent assault; that psychosexual and psychological evaluations performed on Mike in 2004 and 2008 revealed that Mike had serious problems with substance abuse and poor impulse control; that Mike's 1997 sexual offense was particularly gruesome; 1 and that Mike had failed to comply with the sex offender registration requirements. The court determined that Mike could possess and use a computer, but that any computer he possessed would be subject to monitoring by the probation officer.

Accordingly, the conditions of Mike's supervised release ordered by the court in the judgment were the same as those initially announced, with two exceptions: first, there was no condition stating that Mike could not possess or use a computer; second, there were conditions setting forth how Mike's computer use would be monitored (“the computer monitoring conditions”): (1) the defendant consents to the probation officer conducting periodic examinations of his computer; (2) the defendant consents to the probation officer installing on his computer any software systems to monitor his computer use and to warning others of the probation officer's ability to place monitoring software on his computer or any such computer he may have access to; (3) the defendant consents to the probation officer placing tamper resistant tape over unused ports and sealing his computer case; (4) the defendant consents to maintaining a current inventory of his computer access, including, but not limited to, any bills pertaining to computer access, and shall submit on a monthly basis any card receipts/bills, telephone bills used for modem access, or any other records accrued in the use of a computer to the probation officer; and (5) the defendant shall not make any changes to his computer services, user identifications, or passwords without the prior approval of the probation officer.

II. STANDARD OF REVIEW

When the defendant objects to a special condition of supervised release at the time it is announced, this Court reviews for abuse of discretion. See United States v. Hahn, 551 F.3d 977, 982 (10th Cir.2008), cert. denied, ––– U.S. ––––, 129 S.Ct. 1687, 173 L.Ed.2d 1049 (2009). However, when the defendant fails to object, we review for plain error. See United States v. Barajas, 331 F.3d 1141, 1145 (10th Cir.2003). To establish plain error, the defendant must show: (1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Gonzalez–Huerta, 403 F.3d 727, 732 (10th Cir.2005) (en banc) (quotation omitted). We conduct this analysis less rigidly when reviewing a potential constitutional error.” United States v. Dazey, 403 F.3d 1147, 1174 (10th Cir.2005) (internal quotation marks omitted).

III. ANALYSIS

On appeal, Mike raises objections to the following conditions of release: (1) the computer monitoring conditions; (2) the condition mandating sex offender treatment and testing; (3) the condition stating that he is to have no contact with children; (4) the condition prohibiting him from engaging in an occupation with access to children; (5) the condition requiring third party notification; (6) the conditions commanding participation in a mental health treatment program; (7) the condition ordering participation in a substance abuse treatment program; and (8) the condition forbidding him from possessing sexually explicit materials.

District courts have broad discretion to prescribe special conditions of release. See, e.g., United States v. Hanrahan, 508 F.3d 962, 970 (10th Cir.2007). However, this discretion is not without limits. For instance, the conditions imposed “must satisfy the three statutory requirements laid out in 18 U.S.C. § 3583(d).” See Hahn, 551 F.3d at 983. First...

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