United States v. Child

Citation699 F.3d 1082
Decision Date23 October 2012
Docket NumberNo. 11–30241.,11–30241.
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Timothy Eric WOLF CHILD, Defendant–Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

699 F.3d 1082

2012 Daily Journal D.A.R. 14,690

UNITED STATES of America, Plaintiff–Appellee,
v.
Timothy Eric WOLF CHILD, Defendant–Appellant.

No. 11–30241.

United States Court of Appeals,
Ninth Circuit.

Argued and Submitted July 12, 2012.
Filed Oct. 23, 2012.


[699 F.3d 1087]


Daniel Donovan (argued), Great Falls, MT, for the defendant-appellant.

Michael W. Cotter, United States Attorney; Danna R. Jackson (argued), Leif M. Johnson, Assistant United States Attorneys, Helena, MT, for the appellee.


Appeal from the United States District Court for the District of Montana, Sam E. Haddon, District Judge, Presiding. D.C. No. 4:11–cr–00012–SEH–1.
Before: MARY M. SCHROEDER, STEPHEN REINHARDT, and MILAN D. SMITH, JR., Circuit Judges.

OPINION

REINHARDT, Circuit Judge:

Timothy Eric Wolf Child, a Native American, appeals a special condition of supervised release imposed by the district court after he pleaded guilty to attempted sexual abuse. The special condition, condition 9, prohibited Wolf Child from residing with or being in the company of any child under the age of 18, including his own daughters, and from socializing with or dating anybody with children under the age of 18, including his fiancée, in both cases unless he had prior written approval from his probation officer. The district court imposed the special condition without first making any specific findings regarding the necessity of restricting Wolf Child's ability to have contact with his children and his fiancée. It did so on the basis of a record devoid of evidence supporting the need for such a restriction with respect to his intimate family members. We hold that the fundamental right to familial association, implicated by the parts of the special condition prohibiting Wolf Child from residing with or being in the company of his own daughters and socializing with his fiancée, is a “particularly significant liberty interest.” The district court was therefore required to follow an enhanced procedural requirement to make special findings on the record supported by evidence in the record, that the condition is necessary for deterrence, protection of the public, or rehabilitation, and that it involves no greater deprivation of liberty than reasonably necessary. Because the district court made no such findings regarding the imposition of the special condition, and it conducted no individualized examination of Wolf Child's relationship

[699 F.3d 1088]

with the affected family members, it committed procedural error with regard to these specific individuals. Moreover, because of the absence of any evidence in the record that would support the limitations on the fundamental liberty interests at issue, we hold that special condition 9, as applied to restrict Wolf Child's ability to reside or socialize with his own children and with his fiancée is substantively unreasonable.

In addition, we conclude that special condition 9 is overbroad both by virtue of prohibiting Wolf Child from being in the company of any child under the age of 18 under any circumstances and by similarly prohibiting him from dating or socializing with anybody who has children under the age of 18, regardless of the circumstances, without prior approval of his probation officer. On remand, if the district court deems it appropriate to adopt a special condition limiting Wolf Child's contact with children under the age of 18 (other than his own children) and associating with parents of children under the age of 18 (other than his fiancée) it must ensure that any such condition is reasonably necessary to accomplish the statutory goals of supervised release and that it infringes on his particularly significant liberty interests no more than reasonably necessary to accomplish those goals.

Facts and Procedural History

Wolf Child is a member of the Chippewa Cree Tribe. On the morning of August 20, 2010, while at a house party on the Rocky Boy Indian Reservation, Wolf Child, then 22 years old, attempted to have sex with B.M., a 16–year–old girl, who was intoxicated and unconscious. He admitted to kissing B.M. and rubbing her breasts and vaginal area, taking off her pants and underwear, pulling down his pants, and positioning himself in between her legs to have sex with B.M., and further admitted that his penis might have touched her vagina. Wolf Child stopped when another girl walked into the room.

Wolf Child was charged in a two-count indictment with attempted sexual abuse, in violation of 18 U.S.C. §§ 1153(a) and 2242(2)(B), and abusive sexual contact, in violation of 18 U.S.C. §§ 1153(a) and 2244(a)(2). He pleaded guilty to the attempted sexual abuse charge pursuant to a plea agreement and a sentencing hearing was held on August 25, 2011. During that hearing, the district judge stated generally that all of the 18 U.S.C. § 3553(a) factors had been taken into account in determining the sentence for Wolf Child. The district judge then discussed “some of the more specific aspects of the case” that had a direct bearing on the sentencing determination. First, the judge stated that “this is a serious crime by any assessment,” noting that Wolf Child “took advantage of a passed-out young female,” which resulted in “significant harm to the victim.” Second, the judge noted that Wolf Child had “a long history of contributing to the delinquency of minors,” as reflected in his tribal record, but mentioned no instances involving sexual activity aside from the conviction at issue here. Third, the judge stated that he carefully considered the arguments advanced on behalf of Wolf Child regarding his responsibility to his daughters and the hardship they would suffer due to his incarceration, but found that it was “not an appropriate consideration that has any weight.” The district judge then concluded that the guidelines calculation was “not out of line for all factors considered in this case” and “not excessive, given the ... totality of the circumstances,” and sentenced Wolf Child to 86 months in prison and 10 years of supervised release.

Without additional discussion, the district judge imposed several special conditions

[699 F.3d 1089]

of supervised release, including special condition 9, which ordered in relevant part that Wolf Child “shall not be allowed to do the following without prior written approval of United States Probation: [1] reside in the home, residence, or be in the company of any child under the age of 18; [2] go to or loiter near school yards, parks, playgrounds, arcades, or other places primarily used by children under the age of 18; or [3] date or socialize with anybody who has children under the age of 18.” (hereinafter “special condition 9, parts 1, 2, and 3”). After the sentence had been announced, defense counsel sought to clarify whether special condition 9 barred Wolf Child from residing with or being in the company of his own daughters. 1 The district judge replied:

Absolutely.... This man is now a convicted sex offender. And I will not allow him to have contact with children under the age of 18 without the approval of probation, as stated in the disposition. This man cannot be trusted with minor children, in the view of this court. And he will not be. We will have probationary supervision of this man. If the probation officer in charge of his case deems it appropriate, the probation officer will have the capacity to make that call. But it will not be allowed as a matter of course.
Defense counsel expressly objected to this condition as applied to Wolf Child's access to his own daughters, and the judge replied
“I understand. You may take that issue to the circuit if you wish to do so, counsel.”

Wolf Child filed a timely Notice of Appeal.

Analysis
I.

“We review for abuse of discretion the conditions of supervised release set by the district court and challenged on ... appeal” when trial counsel objects to a supervised release condition. United States v. Napulou, 593 F.3d 1041, 1044 (9th Cir.2010). When trial counsel fails to object to the imposition of a supervised release condition, “we review[the] conditions for plain error.” United States v. Johnson, 626 F.3d 1085, 1088–89 (9th Cir.2010). Because “a district court has at its disposal all of the evidence, its own impressions of a defendant, and wide latitude, ... we give considerable deference to [its] determination of the appropriate supervised release conditions.” United States v. Weber, 451 F.3d 552, 557 (9th Cir.2006) (internal quotation marks and citation omitted). Conditions affecting fundamental rights, however, are “reviewed carefully.” United States v. Soltero, 510 F.3d 858, 866 (9th Cir.2007) (internal quotation marks and citation omitted). In imposing a condition of supervised release, the court must consider “the nature and circumstances of the offense and the history and characteristics of the defendant” and “the need for the sentence imposed ... to afford adequate deterrence to criminal conduct; ... to protect the public from further crimes of the defendant; and ... to provide the defendant with needed educational or vocational training, medical

[699 F.3d 1090]

care, or other correctional treatment in the most effective manner.” 18 U.S.C. §§ 3583(d), 3553(a); Napulou, 593 F.3d at 1044. Under 18 U.S.C. § 3583(d), conditions of supervised release “must: (1) be reasonably related to the goals of deterrence, protection of the public, and/or defendant rehabilitation; (2) involve no greater deprivation of liberty than is reasonably necessary to achieve those goals; and (3) be consistent with any pertinent policy statements issued by the Sentencing Commission.” Napulou, 593 F.3d at 1044. The government bears the burden of establishing the necessity of any condition of supervised release. Weber, 451 F.3d at 558.

In reviewing a sentence, including a condition of supervised release, we first determine whether the district court committed procedural error. United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc). “It would be...

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