United States v. Baker

• Decision Date: 17 June 2014
• Docket Number: No. 13–1641.,13–1641.
• Citation: 755 F.3d 515
• Court: U.S. Court of Appeals — Seventh Circuit
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Roy BAKER, Defendant–Appellant.

755 F.3d 515

UNITED STATES of America, Plaintiff–Appellee,

v.Roy BAKER, Defendant–Appellant.

No. 13–1641.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 12, 2013.

Decided June 17, 2014.

Joseph H. Hartzler, Attorney, Office of the United States Attorney, Springfield, IL, for Plaintiff–Appellee.

Robert A. Alvarado, Attorney, Daniel T. Hansmeier, Attorney, Office Of The Federal Public Defender, Springfield, IL, for Defendant–Appellee.

Before ROVNER and SYKES, Circuit Judges, and DURKIN, District Judge. ^*

DURKIN, District Judge.

Individuals convicted of sex offenses are required under federal and state law to register as a sex offender with the local law enforcement agency where they reside. Roy Baker has repeatedly chosen to ignore this requirement since the first time he sexually assaulted a woman in 1982. This habit caught up to him for the third time in May 2012 when he pled guilty to a single count of failing to register as a sex offender, in violation of 18 U.S.C. § 2250(a). The district judge sentenced Baker to 77 months' imprisonment, followed by a life term of supervised release. The judge also imposed eight special conditions of supervised release. Baker now challenges the length of his supervised release term and four of those special conditions. The government agrees that the supervised release term and some special conditions should be vacated. For the following reasons, Baker's sentence is affirmed in part and vacated in part.

BACKGROUND

I. Baker's Underlying Conduct

Baker was convicted of criminal sexual assault in Chicago, Illinois, in January 1982 and July 1983, and sentenced to concurrent 8–year prison terms. He was released on parole in 1986, and within three months of that release, kidnapped, threatened, and sexually assaulted two other women. For those state offenses, Baker received concurrent 28–year prison sentences.

Baker was released from prison on parole in 2000 but later taken back into custody in 2002 to serve a 2–year prison term for a state aggravated fleeing offense. Upon his subsequent parole release in March 2003, Baker was told to register as a sex offender. He did not, and was convicted in March 2004 in an Illinois state court for failing to register as a sex offender. He received a 30–month term of probation, though he later violated his probation and went to jail for 6 months. Baker completed his probation sentence in 2007.

In April 2007, Baker sought employment with a restaurant in the food court of an Illinois shopping mall. He claimed that he had no prior felony convictions—a lie he later acknowledged was necessary in order to secure employment.

Baker continued to work at the restaurant until he was fired in December 2007 as a result of conduct involving two underage girls. On December 6 or 7, 2007, Baker invited two 14–year old girls to join him in the back area of the restaurant. He proceeded to ask the girls sexual questions and if they would engage in explicit sexual activity with him. Frightened, the girls left the area but not before Baker gave one of them his phone number. The next day, one of the girls—who were together at the time—called Baker and pretended to be the other girl. Baker repeated his desire to engage in sexual relations with the girl, but the conversation went no further. That was the last time Baker ever spoke with the girls. Nevertheless, one of the girl's mothers became aware of the incident and contacted police. The police investigated the complaint, which led to the discovery of Baker's extensive criminal history and prompted Baker's employer to fire him. For reasons unknown, the state's attorney's office handling the matter declined to prosecute the case.

Baker was involved in various state criminal matters over the next four years, including a domestic violence incident for which no charges were filed, an arrest for violating bail bond, and an arrest for driving with a suspended license and illegally transporting alcohol. Then, in February 2011, Baker committed a second state sex offender registration violation by failing to report his employment at a new restaurant. Baker was incarcerated and later released on bond in March 2011. A condition of Baker's release required him to participate in a substance-abuse treatment program, for which he checked into a residential program. Baker was discharged from that program unsuccessfully after failing to attend drug treatment and testing positive for alcohol. Baker pled guilty to the state failure to register charge in November 2011, and had his sentencing date scheduled for February 3, 2012.

Another condition of Baker's March 2011 release was to refrain from visiting social networking or dating websites. Baker ignored this and used the alias “Rob Baker” to create a profile on a dating website that included his photo and other personal identifying information. Doing this allowed Baker to begin an online relationship in November 2011 with a woman who lived in Michigan. The pair eventually became close, and Baker moved to Michigan to live with the woman and her children, ages 8 and 12. Baker informed the woman of his sex offender status, and she showed him the local Michigan police station where Baker needed to register. Again, Baker not only made the conscious decision to not register, but he also lied and told the woman that he had. He also did not clear his departure from Illinois with the proper Illinois authorities.

Baker's February 3, 2012 sentencing date on the second failure to register charge came and went without a word from Baker. A warrant for his arrest was issued on February 8, 2012, after Illinois authorities discovered Baker was two months late in reporting for sex offender registration and had failed to update his new address. Shortly thereafter, on February 22, a police officer stopped Baker in Michigan for speeding. The officer discovered the arrest warrant and immediately took Baker into custody, where Baker was processed and later transported back to Illinois.

On March 21, 2012, a federal grand jury in Peoria, Illinois, returned a one-count indictment charging Baker with violating the Sex Offender Registration and Notification Act (“SORNA”) by traveling interstate and failing to register or update his registration as a sex offender. See18 U.S.C. § 2250(a). Baker pled guilty to the charge on May 31, 2012, without the benefit of a plea agreement.

II. Sentencing

The U.S. Probation Office prepared a presentence investigation report (“PSR”) for the district court. The total offense level was a 13 with a criminal history category of VI, making the guidelines range 33 to 41 months' imprisonment, seeU.S.S.G. § 5C1.1(f), with a 10–year statutory maximum. The PSR noted that this might under-represent Baker's criminal history because the 1982 and 1983 sexual assault convictions were too old to be counted, and Baker was never charged for the incident at the mall restaurant. The PSR also noted that the applicable supervised release term was 5 years to life, citing 18 U.S.C. § 3583(k). Lastly, the Probation Office sent the parties a letter describing eight special conditions that it would recommend as part of Baker's supervised release.

The government filed a sentencing memorandum and advocated for the statutory maximum term of imprisonment, noting the restaurant incident, Baker's false employment applications, and the fact Baker erroneously told the woman he met online that he had completed his sex offender registration in Michigan. Baker opposed the government's request for an upward departure and a life term of supervised release, as well as objected to six of the proposed special conditions of release, including a ban on alcohol; participation in an internet monitoring program; a ban on contact with minors, including his own minor children; ¹ and a provision requiring him to participate in a sex offender treatment program.

Baker's sentencing hearing occurred over the course of two days in January 2013. On day one, the government presented the testimony of four witnesses in aggravation. They included the district manager of Baker's employer at the time of the restaurant incident, the two young girls Baker solicited for sexual relations at the restaurant, and the police detective who investigated the incident. On day two, the district court began by addressing Baker's objections to the PSR. Regarding the term of supervised release, the sentencing judge stated, “So, it is my belief that the range available to me is 5 years to life.” The judge next addressed Baker's objections to the conditions of supervised release, overruling all of them but modifying the internet-monitoring condition to say that the software should only block access to “adult rape-related websites and child pornography websites.”

The district judge then proceeded to announce Baker's sentence. Adopting the factual findings and guidelines calculation contained in the PSR, the judge announced an upward departure from the guidelines range and imposed a 77–month prison term, to be followed by a life term of supervised release. Each of the eight special conditions of release was also imposed. The written judgment listed the four conditions at issue on appeal (i.e., conditions 1, 3, 4, and 8) as follows:

1. You shall refrain from any use of alcohol and shall not purchase, possess, use, distribute, or administer any controlled substance or mood altering substance or any paraphernalia related to any controlled substance or mood altering substance, except as prescribed by a physician. You shall, at the direction of the probation officer, participate in a program for substance abuse treatment including not more than six tests per month to determine whether you have used controlled substances and or alcohol. You shall pay for these services as directed by the probation office.

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3. You shall participate with the U.S. Probation Office's Computer and Internet Monitoring Program (CIMP) during your term of...