United States v. Bear
| Decision Date | 31 October 2014 |
| Docket Number | No. 13–6207.,13–6207. |
| Parties | UNITED STATES of America, Plaintiff–Appellee, v. Wesley A. BEAR, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Submitted on the briefs:*
Brooke A. Tebow, Assistant Federal Public Defender, Oklahoma City, OK, for Appellant.
Sanford C. Coats, United States Attorney, and Timothy W. Ogilvie, Assistant United States Attorney, Oklahoma City, OK, for Appellee.
Before HARTZ, PHILLIPS, and McHUGH, Circuit Judges.
Defendant, Wesley A. Bear, pled guilty to one count of failing to register or update a registration as a sex offender in violation of 18 U.S.C. § 2250. At sentencing, the district court imposed certain special sex offender conditions of supervised release in addition to its standard conditions of supervised release. Mr. Bear objected to the conditions restricting his contact with children and requiring him to submit to sex offender mental health assessment and treatment. The district court overruled his objections, and Mr. Bear now appeals.
This case requires us to resolve three disputes. First, Mr. Bear argues it was an abuse of discretion for the district court to impose sex offender conditions where his conviction of the prior sex offense occurred twelve years before this conviction. Second, Mr. Bear contends the conditions involve a greater deprivation of liberty than reasonably necessary to achieve the purposes of sentencing. Third, Mr. Bear claims the special conditions are not consistent with pertinent policy statements issued by the Sentencing Commission. Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM in part, VACATE in part, and REMAND to the district court for further proceedings consistent with this opinion.
In 2001, Mr. Bear was convicted in Iowa state court on two counts of committing lascivious acts with a child. According to the criminal complaint, from 1994 to 1996, Mr. Bear forced one female under the age of twelve to engage in oral and sexual intercourse with him and fondled the genitals of another female child. As a result of his conviction for these sex offenses, Mr. Bear is required to register as a sex offender by the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. § 2250. Nine years after his sex offenses, in 2010, Mr. Bear was convicted of a sex offender registration violation in a different part of Iowa.
Following his 2010 SORNA conviction, Mr. Bear married and purchased a trailer, which he placed on tribal land in Tama, Iowa. He used the trailer's address in his Iowa sex offender registration. Shortly thereafter, Mr. Bear, his wife, and their three young children moved to his mother-in-law's house in Oklahoma City. Mr. Bear did not update his registration. When this omission was discovered, Mr. Bear was arrested and charged with the present failure to comply with SORNA, to which Mr. Bear pled guilty.
The district court sentenced Mr. Bear to twenty-three months of imprisonment and five years of supervised release. In addition to the standard conditions of supervised release, the court imposed sex offender conditions of supervised release. One condition required Mr. Bear to “submit to a sex offender mental health assessment and a program of sex offender mental health treatment, as directed by the U.S. Probation Officer, until such time as the defendant is released from the program by the probation officer.” R. Vol. 1 at 31. Two other conditions prohibited Mr. Bear from being “at any residence where children under the age of 18 are residing without the prior written permission of the U.S. Probation Officer” or associating “with children under the age of 18 except in the presence of a responsible adult who is aware of the defendant's background and current offense, and who has been approved by the U.S. Probation Officer.” R. Vol. 1 at 31.
Mr. Bear objected to the imposition of these conditions, asserting they violated 18 U.S.C. § 3583(d).1 Specifically, he claimed the underlying sex offenses, which he committed seventeen years prior to sentencing, were too remote in time to be reasonably related to the imposition of conditions of supervised release. He also argued the conditions improperly restricted his right to see and parent his own children, and the assessment and treatment condition was unnecessary because he underwent an assessment and completed treatment around the time of his sex offense conviction.
The district court overruled Mr. Bear's objections and imposed the special conditions of supervised release. The court reasoned that an assessment and further treatment based on that assessment were appropriate because there was no record evidence of a prior assessment or treatment.2 It also rejected Mr. Bear's objection to the restrictions on his contact with his children, noting the condition was not a total ban—Mr. Bear could still parent in the presence of an approved adult supervisor—and Mr. Bear's prior sex offense, though old, involved minor children.
Mr. Bear now appeals from the imposition of the challenged sentencing conditions.
“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. Dougan, 684 F.3d 1030, 1034 (10th Cir.2012). Thus, “we will not disturb the district court's ruling absent a showing it was based on a clearly erroneous finding of fact or an erroneous conclusion of law or manifests a clear error of judgment.” United States v. Batton, 602 F.3d 1191, 1196 (10th Cir.2010) (internal quotation marks omitted).
District courts have broad discretion to impose special conditions of supervised release. See United States v. Mike, 632 F.3d 686, 692 (10th Cir.2011). The limits of that discretion are prescribed by 18 U.S.C. § 3583(d), which requires the conditions (1) be reasonably related to 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, or the defendant's educational, vocational, medical, or other correctional needs; (2) 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; and (3) be consistent with any pertinent policy statements issued by the Sentencing Commission. See 18 U.S.C. § 3583(d) ( “Statutory Sentencing Factors”); id. § 3553(a); Mike, 632 F.3d at 692. Sex offender conditions of supervised release may be imposed, even at sentencing for crimes which are not sex crimes, if supported by § 3583(d). United States v. Hahn, 551 F.3d 977, 983–86 (10th Cir.2008) ; United States v. King, 431 Fed. App'x. 630, 635–36 (10th Cir.2011)3 (unpublished) (); see also United States v. Morales–Cruz, 712 F.3d 71, 72 (1st Cir.2013) (); United States v. Brogdon, 503 F.3d 555, 563–66 (6th Cir.2007) ().
Mr. Bear raises three challenges to the assessment and treatment condition and the restrictions on his contact with children, which we address in turn. First, he argues his underlying sex offense conviction is too old to be reasonably related to the sex-offender conditions imposed. Second, he contends the conditions involve a greater deprivation of liberty than reasonably necessary in violation of § 3583(d)(2). Third, he claims the conditions are not consistent with pertinent policy statements issued by the Sentencing Commission.
Prior sex offenses can be too temporally remote for sex-offender conditions of supervised release to be reasonably related to 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, or the defendant's educational, vocational, medical, or other correctional needs. United States v. Dougan, 684 F.3d 1030, 1034 (10th Cir.2012). There is no bright-line rule for the outer limit of temporal remoteness, in part because district courts must consider more than just the age of a defendant's prior conviction. Id. at 1034–35. In addition to the time that has passed since the prior conviction, the district court must consider whether the special conditions are “reasonably related to” the Statutory Sentencing Factors in 18 U.S.C. § 3553(a). Id. at 1035 ; 18 U.S.C. §§ 3583(d)(1) ; 3553(a)(1), (a)(2)(B)-(D); see also United States v. Vinson, 147 Fed.Appx. 763, 771–75 (10th Cir.2005) (unpublished) ().
In United States v. Mike, we addressed the imposition of special conditions following an assault conviction, when a defendant's sexual offense occurred nine years before the assault, and twelve years prior to his assault conviction. 632 F.3d 686, 689 (10th Cir.2011). One condition limited Mr. Mike's access to computers. Id. at 693. Although we remanded to have the condition clarified on other grounds, we held it was reasonably related to both protecting the public from future crimes and...
To continue reading
Request your trial