United States v. Dougan

• Decision Date: 10 July 2012
• Docket Number: No. 11–6173.,11–6173.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Ronald Dean DOUGAN, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

684 F.3d 1030

UNITED STATES of America, Plaintiff–Appellee,

v.Ronald Dean DOUGAN, Defendant–Appellant.

No. 11–6173.

United States Court of Appeals,Tenth Circuit.

July 10, 2012.

Paul Antonio Lacy, Assistant Federal Public Defender, Oklahoma City, OK, for Defendant–Appellant.

Steven W. Creager, Special Assistant United States Attorney, (Sanford C. Coats, United States Attorney, and Edward J. Kumiega, Assistant United States Attorney, with him on the brief), Oklahoma City, OK, for Plaintiff–Appellee.

Before BRISCOE, Chief Judge, SEYMOUR and EBEL, Circuit Judges.

BRISCOE, Chief Judge.

Ronald Dougan, convicted of robbing a post office in violation of 18 U.S.C. § 2114(a), appeals the district court's imposition of special sex-offender conditions of release. The district court imposed these requirements based on Dougan's criminal history, which includes a thirty-three-year-old conviction for sexual battery and a seventeen-year-old conviction for aggravated battery, originally charged as sexual battery. We have jurisdiction under 28 U.S.C. § 1291. Because the underlying sexual offenses, when viewed in the factual context in which they arose, are too remote to be reasonably related to the present offense, we remand with directions to vacate the special sex-offender conditions of release imposed as a part of Dougan's sentence. We dismiss for lack of jurisdiction Dougan's challenge to the district court's recommendation for treatment during incarceration.

I

In January 2011, Dougan pled guilty to robbing the Center City Post Office, in Oklahoma City, Oklahoma. Dougan robbed the post office of $220 by passing a note to the cashier saying that he had a gun in his pocket. He also pretended to have a gun, although he was not actually armed.

After Dougan entered his guilty plea, a probation officer prepared a Presentence Investigation Report (PSR), which chronicled Dougan's lengthy criminal history. As is relevant here, the PSR listed a 1978 conviction for sexual battery and a 1994 conviction for aggravated battery. Neither offense related in any way to minors. The 1994 conviction was originally charged as sexual battery, and the arresting officer's complaint apparently described the alleged sexual battery. The complaint is not in the record presented to us on appeal.

The PSR made several recommendations based on these prior offenses. First, the PSR recommended that Dougan be required to participate in a sex-offender treatment program while incarcerated. Second, it recommended that, as a condition of release, Dougan be required to submit to a sex-offender mental health assessment and a program of offender mental health treatment, potentially including a polygraph and a penile plethysmograph. Third, the PSR recommended that Dougan be required to waive all rights to confidentiality regarding the treatments. Fourth, the PSR recommended that Dougan not be allowed at any residence where children under the age of eighteen reside without the prior written permission of his probation officer. Fifth, the PSR recommended that Dougan not be allowed to associate with children under the age of eighteen except in the presence of a responsible adult who is aware of Dougan's background and who has been approved by his probation officer. Sixth, the PSR recommended that Dougan not be allowed to view, purchase, possess, or distribute any form of pornography depicting sexually explicit conduct as defined in 18 U.S.C. § 2256(2)—unless approved for treatment purposes—or frequent any place where such material is the primary product for sale. Finally, the PSR recommended that Dougan be required to register pursuant to the provisions of the Sex Offender Registration and Notification Act and any applicable state registration law.¹ The court approved all of these conditions.

Dougan objected to the PSR's characterization of the 1994 aggravated battery conviction, maintaining that he did not sexually batter the victim. He also objected to all of the sex-offender conditions that were recommended, arguing that they did not comport with 18 U.S.C. § 3583. Specifically, he argued that the special conditions:

(1) [were not] reasonably related to at least one of the following: nature and circumstances of the offense, the defendant's history and characteristics, the deterrence of criminal conduct, the protection of the public from further crimes of the defendant, and the defendant's educational, vocational, medical, or other correctional needs[;] (2) involved a greater deprivation of liberty than is reasonably necessary to achieve the purpose of deterring criminal activity, protecting the public, and promoting the defendant's rehabilitation [;] and (3) [were] not consistent with any pertinent policy statements issued by the Sentencing Commission.

The district court heard argument regarding Dougan's objections at sentencing. As regards the 1994 conviction, the district court reviewed the arresting officer's complaint for additional background information concerning the underlying offense. The court noted:

The complaint of the arresting officer clearly states what it states, and I think the body of that is pretty much reflected on page 7 of the Presentence Report, that supports the statement that he committed sexual battery. It goes on to describe the specific acts he did, as they referred to it as sexual battery. Now, there was not a charge filed that was called sexual battery.

Record on Appeal (ROA), Vol. 4, at 8. The court stated that it would “not ... ignore the report of the complaining officer in that case,” id. at 11, and overruled Dougan's objection to the PSR's assessment of the 1994 conviction as an offense involving sexual battery. Id. at 12.

The district court then determined that Dougan's participation in a sex-offender treatment program while incarcerated did not involve a deprivation of liberty and was warranted by his history. Id. at 15. Finally, the court overruled Dougan's objectionsto all of the recommended conditions of supervision. The court explained its reasoning:

[T]he sex-offender treatment recommendations and conditions are reasonably related to defendant's prior criminal history which includes a conviction of a sex offense and ... the instant offense and defendant's prior offenses involving sexual battery are related in that they are all violent offenses. Additionally, ... these sex-offender treatment recommendations and conditions do not involve a greater deprivation of liberty than is reasonably necessary to achieve the purpose of deterring criminal activity, protecting the public, and promoting the defendant's rehabilitation. Finally, ... these sex-offender treatment recommendations and conditions are consistent with any pertinent policy statements issued by the Sentencing Commission.

ROA, Vol. 3, at 5. Thus, the court recommended the sex-offender assessment and treatment while Dougan was incarcerated and also imposed the sex-offender conditions of release.

II

Dougan timely appealed the district court's decision, arguing that the district court erred when it (1) overruled his objection to the PSR's finding of fact related to his 1994 conviction; (2) recommended that he participate in a sex-offender treatment program while incarcerated; and (3) ordered the special sex-offender conditions of release.²

As we ultimately conclude that the district court erred in relying on the sex crimes at issue to justify imposition of the special sex-offender conditions, we need not consider at length his objection to the PSR's finding of fact.³ Further, we do not have jurisdiction to address his objection to the district court's recommendation concerning treatment during incarceration because the district court's recommendations are not binding on the Bureau of Prisons and so are not appealable as “final decisions” under 28 U.S.C. § 1291 nor as a “final sentence” under 18 U.S.C. § 3742. United States v. Yousef, 327 F.3d 56, 165 (2d Cir.2003). Thus, we only address his objections to the special sex-offender conditions of release.

A. 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.” United States v. Mike, 632 F.3d 686, 692 (10th Cir.2011). This “means we will not disturb the district court's ruling ‘absent a distinct showing it was based on ... an erroneous conclusion of law or manifests a clear error of judgment.’ ” United States v. Batton, 602 F.3d 1191, 1196 (10th Cir.2010).

B. The district court abused its discretion when it ordered special sex-offender conditions of release.

We have described the scope of the district court's discretion when imposing special conditions of release as follows:

District courts have broad discretion to prescribe special conditions of release. 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). First, they must be reasonably related to at least one of following: the nature and circumstances of the offense, the defendant's history and characteristics, the deterrence of criminal conduct, the protection of the public from further crimes of the defendant, and the defendant's educational, vocational, medical, or other correctional needs. Second, they must involve no greater deprivation of liberty than is reasonably necessary to achieve the purpose of deterring criminal activity, protecting the public, and promoting the defendant's rehabilitation. Third, they must be consistent with any pertinent policy statements issued by the Sentencing Commission.

Mike, 632 F.3d at 692 (citations and internal quotation marks omitted). In this case, Dougan argues that as a result of the remoteness of his sex offenses, the sex-offender conditions imposed by the court are not reasonably related to the nature and circumstances of his current offense, his history and characteristics, the deterrence of...