U.S. v. Rodriguez

• Decision Date: 09 February 2009
• Docket Number: No. 07-51044.,07-51044.
• Citation: 558 F.3d 408
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gary Lee RODRIGUEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

558 F.3d 408

UNITED STATES of America, Plaintiff-Appellee, v. Gary Lee RODRIGUEZ, Defendant-Appellant.

No. 07-51044.

United States Court of Appeals, Fifth Circuit.

February 9, 2009.

Joseph H. Gay, Jr., Asst. U.S. Atty., Elizabeth Berenguer, San Antonio, TX, for U.S.

Judy Fulmer Madewell, Henry Joseph Bemporad, Fed. Public Defender, San Antonio, TX, for Rodriguez.

Appeal from the United States District Court for the Western District of Texas.

Before JONES, Chief Judge, JOLLY, Circuit Judge, and MONTALVO, District Judge.^*

MONTALVO, District Judge:

Gary Lee Rodriguez ("Rodriguez") pleaded guilty to three counts of assault on a federal officer pursuant to 18 U.S.C. § 111. At his sentencing, the district court imposed supervised release conditions, which restricted Rodriguez's freedoms of association and travel. Rodriguez appeals. We AFFIRM.

BACKGROUND

On April 9, 2007, Rodriguez, a United States citizen, entered the United States at the Paso Del Norte Port of Entry. A Customs and Border Patrol ("CBP") officer verified Rodriguez was "wanted and extraditable for aggravated assault and battery and interference with a peace officer and first degree sexual assault of a minor" by the Albany County Sheriff's Office in Wyoming. The CBP officer attempted to handcuff Rodriguez. He resisted the application of handcuffs and punched or struck three CBP officers before he was apprehended. Rodriguez was indicted on three counts of assaulting a federal officer, and subsequently pleaded guilty to all three counts of assault.

At sentencing, the district court relied upon the "circumstances of [Rodriguez], the circumstances of the case, and all of the information available," as well as the advisory Federal Sentencing Guidelines ("Sentencing Guidelines"), relevant statutory factors, and the Pre-Sentencing Report ("PSR") to sentence Rodriguez. The PSR, among other data, contained information about pending Wyoming charges for first degree, second degree, and third degree sexual assault of a fifteen-year-old girl.¹ Rodriguez was in a relationship with the girl's mother. The PSR stated the girl told her mother Rodriguez forced the teen to have sexual intercourse with him. According to the PSR, the mother confronted Rodriguez about the incident, who in reply stated, "I couldn't help myself." Rodriguez also had a prior conviction for aggravated assault on his then-pregnant wife. At the time, his wife declared she feared Rodriguez would take off with the children if she let him see them.

According to the PSR, the probation officer concluded Rodriguez's total offense level was fifteen, and Rodriguez's criminal history category was III. The correlative Sentencing Guidelines range was a twenty-four to thirty month term of imprisonment for each assault count. Rodriguez's only objection to the PSR was resolved prior to the sentencing hearing, and he concurred in the above Sentencing Guidelines calculation.

Based upon the information before it, the Sentencing Guidelines, and the relevant statutory authority, the district court imposed three concurrent thirty-month terms of imprisonment, a three-year term of supervised release, and supervised release conditions. The supervised release conditions include a prohibition on "associating with any child or children under the age of eighteen, except in the presence and supervision of an adult specifically designated in writing by the probation officer" ("association restriction"), and a prohibition on residing

within 1000 feet of real property comprising a public or private elementary, vocational, or secondary school or public or private college, junior college, university or playground or a housing authority owned by a public housing authority or within 100 feet of a public or private youth center, public swimming pool or video arcade facility, without prior approval of the probation officer ("residence restriction").

The district court stated it would not order Rodriguez to register as a sex offender because Rodriguez had not been convicted of a sex offense.

At sentencing, Rodriguez objected to the association and residence restrictions. Rodriguez argued his convictions for assaulting federal officers did not constitute sex offenses. Rodriguez, however, did not assert the information regarding the alleged sexual assault of a minor in the PSR was untrue, nor did he deny the pending charge. The district court overruled Rodriguez's objections.

On appeal, Rodriguez argues the district court abused its discretion by imposing the association and residence restrictions. Rodriguez contends these supervised release conditions are (1) not reasonably related to the sentencing factors of 18 U.S.C. § 3553(a) ("section 3553(a)") and (2) impose greater deprivations of liberty than are necessary to achieve the goals of section 3553(a).

DISCUSSION

The district court may impose upon a defendant a term of supervised release as part of its sentencing decision. See 18 U.S.C. § 3583(a) ("section 3583").² This court reviews the portion of a sentencing decision related to an imposed imprisonment term based upon the Sentencing Guidelines under a deferential abuse of discretion standard. See United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir.2008) (citing Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 594, 169 L.Ed.2d 445 (2007)). Pursuant to Gall, this court must ensure "the district court committed no significant procedural error." Id. (citing Gall, 128 S.Ct. at 597). If the imposition of the imprisonment term is "procedurally sound," this court "then considers the `substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.'" Id. (citing Gall, 128 S.Ct. at 597).

By implication, the appropriate standard by which to review conditions of supervised release, which are part of the sentencing decision, is a deferential abuse-of-discretion standard, pursuant to Gall.³ The Record shows the district court considered the appropriate factors under sections 3553(a) and 3583. Thus, the only issue that remains is whether the district court imposed conditions that are substantively unreasonable, and, therefore, abused its discretion.

I. Overview

Title 18 of the United States Code, section 3661 ("section 3661"), provides "[n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence." As a general rule, a PSR bears sufficient indicia of reliability to be considered by a district court when making a factual determination. See United States v. Rome, 207 F.3d 251, 254 (5th Cir.2000). When a district court relies on information in a PSR, "the defendant bears the burden of demonstrating that the information is unreliable or untrue." Id.⁴

A district court may impose any condition of supervised release "it considers to be appropriate." 18 U.S.C. § 3583(d). Supervised release conditions may include barring a defendant from "frequenting specified kinds of places or from associating unnecessarily with specified persons" or prohibiting the defendant from "resid[ing] in a specified place or area, or refrain[ing] from residing in a specified place or area." Id. §§ 3563(b)(6), (13), 3583(d) (stating a district court may impose "any condition set forth as a discretionary condition of probation in section 3563(b)"). Further conditions of supervised release, however, may only be imposed if certain requirements are met. Id. § 3583(d).

First, the condition must be "reasonably related" to (1) the nature and characteristics of the offense and the defendant; (2) the deterrence of criminal conduct; (3) the protection of the public from any further crimes of the defendant; and (4) the defendant's correctional needs. Id. §§ 3553(a)(1), (a)(2)(B)-(D), 3583(d)(1). Second, the condition cannot impose any "greater deprivation of liberty than is reasonably necessary" (1) to promote deterrence; (2) to protect the public from the defendant; and (3) to advance the defendant's correctional needs. See id. §§ 3553(a)(2)(B)-(D), 3583(d)(2). Finally the condition must be consistent with the policy statements issued by the Sentencing Commission. Id. § 3583(d)(3). Accordingly, section 3583 defines the limits of the district court's discretion to impose supervised release conditions. Thus, when conditions relate to sentencing factors and are narrowly defined to achieve sentencing goals, and such conditions are reasonable, the district court does not abuse its discretion under Gall's deferential standard.

II. Reasonable Relation

Rodriguez argues the supervised release conditions are "not reasonably related to the nature and circumstances of the offense, or the history and characteristics of [ ] [him]" because he has never been convicted of a sexual offense. He contends the information in the PSR about the pending state charge for sexual assault of a minor was not sufficiently reliable to justify imposing the association and residence restrictions. He asserts the PSR contained an accusation, not a conviction, and whether the accusation had been presented to a grand jury or subject to cross-examination was not clear. Rodriguez also argues the district court did not make any evidentiary findings regarding the outstanding state charge.

Based on the information contained in the PSR, the United States of America ("Government") argues the supervised released conditions are reasonably related to the statutory factors because (1) Rodriguez was charged with sexual assault of a minor; (2) medical evidence confirmed the victim was assaulted; (3) Rodriguez admitted to the victim's mother he assaulted the victim; (4) Rodriguez demonstrated his consciousness of guilt when he attempted to flee from the CBP officers; and (5) Rodriguez admitted he had sexual impulse control issues around children because he told the victim's mother, "I...