746 F.3d 943 (9th Cir. 2014), 13-30017, United States v. Bainbridge

Docket Nº:13-30017
Citation:746 F.3d 943
Opinion Judge:BEA, Circuit Judge:
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GERALD LYNN BAINBRIDGE, Defendant-Appellant
Attorney:Matthew Campbell, Federal Defenders of Eastern Washington & Idaho, Spokane, Washington, for Defendant-Appellant. Wendy Olson, United States Attorney, Michael Mitchell, Assistant United States Attorney, Coeur d'Alene, Idaho; Syrena Hargrove, Assistant United States Attorney, Boise, Idaho for Plain...
Judge Panel:Before: Sandra Day O'Connor, Associate Justice (Ret.),[*] and Richard C. Tallman and Carlos T. Bea, Circuit Judges.
Case Date:March 06, 2014
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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746 F.3d 943 (9th Cir. 2014)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

GERALD LYNN BAINBRIDGE, Defendant-Appellant

No. 13-30017

United States Court of Appeals, Ninth Circuit

March 6, 2014

Argued and Submitted, Seattle, Washington December 4, 2013.

Appeal from the United States District Court for the District of Idaho. D.C. No. 3:05-cr-00101-EJL-2. Edward J. Lodge, District Judge, Presiding.

Matthew Campbell, Federal Defenders of Eastern Washington & Idaho, Spokane, Washington, for Defendant-Appellant.

Wendy Olson, United States Attorney, Michael Mitchell, Assistant United States Attorney, Coeur d'Alene, Idaho; Syrena Hargrove, Assistant United States Attorney, Boise, Idaho for Plaintiff-Appellee.

Before: Sandra Day O'Connor, Associate Justice (Ret.),[*] and Richard C. Tallman and Carlos T. Bea, Circuit Judges.

OPINION

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BEA, Circuit Judge:

This case presents two questions: can a district court impose a sexual deviancy evaluation as a condition of supervised release when deviant sexual conduct was not an element of the underlying crime of conviction? If so, is it essential the Government prove a change in circumstances since the original supervised release conditions were imposed, to justify such an additional condition?

We hold that in the circumstances of this case, the sexual deviancy evaluation can be so imposed, without proof of a change in such circumstances.

Defendant Gerald Lynn Bainbridge (" Bainbridge" ) pleaded guilty to one count of Assault with Intent to Kidnap. The district court sentenced Bainbridge to 97 months in jail, followed by three years of supervised release. After Bainbridge served his prison term, his Probation Officer petitioned the district court to modify the conditions of his supervised release. The government then filed a motion to require Bainbridge to undergo a sexual deviancy evaluation to determine whether the other additional conditions of supervised release requested by the Probation Officer were necessary. The district court granted the government's motion. Bainbridge appealed, claiming the district court did not have jurisdiction to modify the conditions of his supervised release absent a change in circumstances and that, assuming the district court had jurisdiction, the modification was nonetheless unreasonable. We AFFIRM.

Background

On February 21, 2006, Bainbridge pleaded guilty to an Information charging him

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with Assault with Intent to Kidnap. In the plea agreement, Bainbridge admitted that he and his co-defendant had been driving a motor home in Lapwai, Idaho and offered a ride to a disabled female who was walking on the side of the road. Bainbridge further admitted that after the female entered the motor home, she:

was shoved onto a bed, her hands were bound behind her back with duct tape, . . . [and Bainbridge] drove the motor home away. . . . [Bainbridge's co-defendant] repeatedly raped [the woman] . . . . [Bainbridge then] pulled the motor home over and also engaged in sexual acts with her. This included oral/genital, genital/genital and anal/genital sexual acts. . . . [Bainbridge] takes the position that he did not understand it was against her will at the time, however, understanding all the facts and circumstances, [he] now understands and accepts that these sexual acts were done without [the victim's] voluntary consent.

The government and Bainbridge agreed to a recommended sentence of 97 months. On May 8, 2006, the district court sentenced Bainbridge to 97 months imprisonment followed by three years of supervised release. The district court also imposed a special condition of supervised release: that Bainbridge register as a sex offender. The district court stated that it was:

not going to at this point incorporate any of those other sex offender [conditions] that would normally be encompassed. If the Probation department feels that is something that needs to be addressed at a later time, they can move the Court for a modification. But at this time it is just the sex offender [registration] laws that you are going to have to comply with.

After Bainbridge served his prison term and began his term of supervised release, Bainbridge's Probation Officer filed a petition with the district court to modify Bainbridge's conditions of supervised release. In particular, the petition requested that the district court add the following conditions: (1) that Bainbridge " participate . . . in an evaluation for sexual deviancy by a qualified mental health professional," at which evaluation Bainbridge " agrees to waive any right to confidentiality and allow the treatment provider to supply a written report to the United States Probation Office" ; (2) that Bainbridge " successfully complete any course of treatment related to his offense, as directed by the probation officer" ; (3) that Bainbridge " participate in polygraph testing . . . to monitor his compliance with treatment conditions and supervised release" ; and (4) that Bainbridge minimize his contact with minor children. Bainbridge opposed this petition, and the government subsequently filed a motion requesting that the district court require Bainbridge to participate in a sexual deviancy evaluation so that the district court " will be in a better position to evaluate whether [the other] additional conditions of supervised release are necessary."

On January 23, 2013, the district court granted the government's motion for a sexual deviancy evaluation in a sealed order.1 United States v. Bainbridge, No. 3:05-CR-00101 (D. Idaho Jan. 23, 2013). " Given the nature of the underlying facts admitted to in the Plea Agreement," the district court found " it is reasonably related and necessary to [the statutory sentencing purposes of deterrence, protection of

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society, and treatment of the defendant] to order [Bainbridge] to participate in a sexual deviancy evaluation in order to determine whether the proposed modified conditions should be imposed in this case." Id. The next day, Bainbridge timely filed a notice of appeal.

Standard of Review

Whether a district court has authority to modify supervised release conditions is a question of law reviewed de novo. United States v. Miller, 205 F.3d 1098, 1100 (9th Cir. 2000). This court reviews a district court's imposition of particular supervised release conditions for abuse of discretion. United States v. Napulou, 593 F.3d 1041, 1044 (9th Cir. 2010).

Analysis

A. Jurisdiction to modify the conditions of supervised release

18 U.S.C. § 3583(e) provides:

The [sentencing court] may, after considering the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7)2 . . . (2) . . . 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[.]

The applicable Federal Rule of Criminal Procedure, Rule 32.1(c), provides in part:

Before modifying the conditions of probation or supervised release, the court must hold a hearing, at which the person has the right to counsel and an opportunity to make a statement and present any information in mitigation.

Bainbridge argues that absent a " change in circumstances," the district court lacked jurisdiction to modify the conditions of his supervised release. To support this argument, Bainbridge cites an advisory committee note to Rule 32.1, which states that " [p]robation conditions should be subject to modification, for the sentencing court must be able to respond to changes in the probationer's circumstances as well as new ideas and methods of rehabilitation." Fed. R. Crim. P. 32.1, advisory committee's note to 1979 addition. Bainbridge also cites two Ninth Circuit cases, United States v. Gross and United States v. Miller, for the proposition that § 3583(e) allows a sentencing court to modify the conditions of supervised release in response to a change in a defendant's circumstances. 307 F.3d 1043, 1044 (9th Cir. 2002); 205 F.3d 1098, 1101 (9th Cir. 2000). However, Bainbridge goes further and argues that these authorities permit a district court to modify a probationer's conditions of supervised release only when (1) there exist " changed circumstances" or (2) new ideas and methods

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of rehabilitation arise. Because there have been no changes in Bainbridge's circumstances from his initial sentencing, and because the government does not suggest that new ideas and methods of rehabilitation motivated the district court's action, Bainbridge contends that the district court did not have jurisdiction to modify the terms of his supervised release.

This argument fails because the authorities cited by Bainbridge do not limit the district court's ability to modify conditions of supervised release to situations in which there is a change in circumstances or where new ideas and methods of rehabilitation arise. The advisory committee's note to Fed. R. Crim. P. 32.1 cited by Bainbridge provides no support for his argument. First, while an advisory committee's note is given " weight" in interpreting the Federal Rules of Criminal Procedure, see United States v. Petri, 731 F.3d 833, 839 (9th Cir. 2013) (stating that " 'the construction given...

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