U.S. v. Coenen, 97-30101

• Decision Date: 18 February 1998
• Docket Number: No. 97-30101,97-30101
• Citation: 135 F.3d 938
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Douglas Turck COENEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 938

135 F.3d 938

UNITED STATES of America, Plaintiff-Appellee, v. Douglas Turck COENEN, Defendant-Appellant.

No. 97-30101.

United States Court of Appeals Fifth Circuit.

Feb. 18, 1998.

M. Patricia Jones, Baton Rouge, LA, for Plaintiff-Appellee.

Rebecca L. Hudsmith, Wayne Joseph Blanchard, Lafayette, LA, for Defendant-Appellant.

Appeal from the United States District Court for the Middle District of Louisiana.

Before POLITZ, Chief Judge, and GARWOOD and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

In appealing his sentence for transmission of child pornography, Douglas Turck Coenen challenges the special conditions of supervised release requiring community notification of his conviction, claiming also that the district court did not give notice that it might impose them. We AFFIRM.

I.

Having pled guilty to four counts of transmission of child pornography, in violation of 18 U.S.C. § 2252(a)(1), Coenen was sentenced to 33 months imprisonment and three years supervised release on each count, to be served concurrently. In addition to the standard conditions of supervised release, the district court imposed, inter alia, special conditions. This was done pursuant to a recommendation from the social worker who interviewed Coenen during the pre-sentence investigation, and found that he met the diagnostic criteria of pedophilia ("recurrent, intensely sexually arousing ... behaviors generally involving ... children ... that occur over a period of at least 6 months" that "could be said to cause clinical[ ] impairment in social and occupational, or other important areas of functioning").

The special conditions are:

3. As directed by the probation officer, the defendant shall give notice of the crime for which he was convicted and his name and address to:

a. The chief of police in the municipality and the sheriff of the parish in which the defendant will reside. The defendant shall register with the sheriff of the parish in which he will reside.

b. All people who live within a one mile radius (rural area), and a three square block area (urban/suburban area) of defendant's residence after release.

c. The superintendent of the school district where the defendant will reside. The superintendent will notify the principal of any school he deems necessary of this information.

Above notifications must be given by mail within 30 days of release on supervision and/or within 30 days of setting up residence in that locale and shall be at the defendant's own expense.

4. As directed by the probation officer, the defendant shall publish notice in the official journal of the governing authority of the parish where the defendant plans to reside on two separate days within the 30 days of setting up residence in that local[e]. The notice shall be published at the defendant's own expense.

5. As directed by the probation officer, the defendant shall give notice as deemed appropriate, such as signs, handbills, bumper stickers, clothing labels, and door-to-door oral communication. The notice shall be at the defendant's own expense.

The notification conditions were based on the provisions of the Louisiana Registration of Sex Offenders Act, LA. R.S. 15:542, which requires a convicted sex offender to register with law enforcement authorities and to provide notice of his crime of conviction, name, and address to neighbors and the superintendent of the school district in which he resides, for a period of ten years following release from imprisonment. LA. R.S. 15:542(B)(1). It is undisputed that the Louisiana Act does not apply to Coenen as a federal offender.

II.

Coenen challenges the community notification conditions. In that regard, he also contends that he was entitled to notice that the court was considering imposing them.

Special conditions of supervision are reviewed for abuse of discretion. Along this line, "[s]ection 5D1.3 of the Guidelines gives a sentencing court broad discretion to impose conditions on supervised release if they are reasonably related to (1) the nature and circumstances of the offense, (2) the need for adequate deterrence of further criminal conduct, and (3) the need to protect the public." United States v. Mills, 959 F.2d 516, 519 (5th Cir.1992) (emphasis added).

The foregoing language from Mills reflects that, in addition to certain mandatory conditions of supervised release, sentencing courts are authorized to "order, as a further condition of supervised release", the discretionary conditions of probation set forth in 18 U.S.C. § 3563(b)(1)-(10) and (12)-(20) (which do not provide for any community notification requirements ), as well as "any other condition it considers to be appropriate",

to the extent that such condition

(1) is reasonably related to the factors set forth in section 3553(a)(1),(a)(2)(B), (a)(2)(C), and (a)(2)(D);

(2) involves no greater deprivation of liberty than is reasonably necessary for the purposes set forth in section 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D); and

(3) is consistent with any pertinent policy statements issued by the Sentencing Commission pursuant to 28 U.S.C. § 994(a)....

18 U.S.C. § 3583(d).

Thus, a special condition must be reasonably related to "the nature and circumstances of the offense and the history and characteristics of the defendant", 18 U.S.C. § 3553(a)(1); and must involve no greater deprivation of liberty than is reasonably necessary in the light of the need "to afford adequate deterrence to criminal conduct", 18 U.S.C. § 3553(a)(2)(B), "to protect the public from further crimes of the defendant", 18 U.S.C. § 3553(a)(2)(C), and "to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner", 18 U.S.C. § 3553(a)(2)(D).

The Sentencing Guidelines track the statute, see U.S.S.G. § 5D1.3; and a policy statement sets forth recommended conditions of supervised release, see U.S.S.G. § 5B1.4 (p.s.). Among those recommended "standard" conditions is the following:

[A]s directed by the probation officer, the defendant shall notify third parties of risks that may be occasioned by the defendant's criminal record or personal history or characteristics, and shall permit the probation officer to make such notifications and to confirm the defendant's compliance with such notification requirement.

U.S.S.G. § 5B1.4(a)(13)(p.s.). This condition was included among the boilerplate standard conditions of supervised release included in the judgment against Coenen.

A.

In maintaining that the district court should have given him notice that it might require community notification, Coenen analogizes to such notice requirements for an upward departure, and for victim notification which, pursuant to 18 U.S.C. § 3555, may be imposed upon a defendant found guilty of fraud.

1.

Before considering whether Coenen was entitled to notice, we first must determine whether he properly presented this issue in district court. The pre-sentence investigation report (PSR) noted that the social worker who had examined Coenen had recommended that he be required to "comply with the sexual offender notification regulations of the State of Louisiana", but Coenen did not object to that portion of the PSR. Likewise, at the sentencing hearing, he did not object when the court announced that it "intend[ed] to invoke the current laws that the State of Louisiana has regarding notification of neighbors of this offense". Nor did he object at sentencing when the court stated: "I think for the protection of the children that the sexual offender notification regulations of the State of Louisiana need to be invoked in this particular case once this defendant is released from custody." Finally, he did not object when the district court imposed the sentence, including the special conditions at issue.

On the other hand, Coenen's counsel apparently tried to make an objection after the district court completed imposition of the sentence. He stated, "Your Honor, let me if I can--"; but the court said "Let me just finish". Accordingly, after the court advised Coenen of his right to appeal, counsel made the following objection:

Your Honor, let me register an objection at this time to your imposition of the notice requirements to the extent that Part V, sentencing options, paragraph seventy through eighty of the presentence [report], did not reflect that and to the extent that they are not specifically authorized by the Guidelines or any other federal statutes that I know of and that Your Honor is tracking the state's statutes, we would object to it on the grounds that it is a sentence that is greater than that authorized by the Guidelines or statutes, or--and that is a condition that is not authorized by the Guidelines or statutes.

(Emphasis added.) However, counsel did not then request a continuance in order to locate and/or present evidence in opposition to the conditions. After allowing the Government to respond, the court stated why it was imposing the notification requirement.

Arguably, this objection was not sufficient to apprise the district court of Coenen's position that Rule 32 requires notice similar to that required for an upward departure. On the other hand, neither prior to, nor when it announced its intention to impose the notification requirement, did the court ask for additional evidence or for comments on that point. (As discussed supra and infra, the evidence before the district court included the PSR and the social worker's report.) And, when the requirement was imposed, counsel did note that, in the PSR section for sentencing options, there was no suggestion for community notification.

In short, the comment by Coenen's counsel can be fairly read as being equivalent to "no notice" and that it is required. Accordingly, we find, dubitante, that he did sufficiently object.

2.

Federal Rule of Criminal Procedure 32(c)(1) provides, in pertinent part: "At the sentencing...