United States v. Burns

• Decision Date: 30 December 2014
• Docket Number: No. 13–5045.,13–5045.
• Citation: 775 F.3d 1221
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. James Howard BURNS, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

775 F.3d 1221

UNITED STATES of America, Plaintiff–Appellee,

v.James Howard BURNS, Defendant–Appellant.

No. 13–5045.

United States Court of Appeals, Tenth Circuit.

Dec. 30, 2014.

Barry L. Derryberry, Office of the Federal Public Defender, Tulsa, OK (Julia L. O'Connell, Federal Public Defender, and Stephen J. Greubel, Assistant Federal Public Defender, Tulsa, OK, on the briefs) for Appellant–Defendant.

Leena Alam, Assistant United States Attorney, Tulsa, OK (Danny C. Williams, Sr., United States Attorney, and Matthew P. Cyran, Assistant United States Attorney, Tulsa, OK, on the brief) for Appellee–Plaintiff.

Before GORSUCH, SEYMOUR, and BACHARACH, Circuit Judges.

BACHARACH, Circuit Judge.

Mr. James Burns was convicted of possession and attempted possession of child pornography. See18 U.S.C. § 2252(a)(4)(B), (b)(2). He was sentenced to 63 months in prison, followed by 5 years of supervised release. This appeal involves one of the conditions of his supervised release. That condition requires approval of the probation department before Mr. Burns can have any contact with minors, including his youngest daughter (S.B.).

This restriction intrudes on Mr. Burns's constitutional right to familial association. Because of this intrusion on a constitutional right, the district court should have made particularized findings before restricting Mr. Burns's contact with his daughter. Because the district court failed to make these findings, we reverse on plain error.¹

I. Plain Error

Because Mr. Burns did not object to the condition in district court, we review only for plain error. United States v. Mike, 632 F.3d 686, 691 (10th Cir.2011). To establish plain error, Mr. Burns must show an error that is plain, that affects substantial rights, and that seriously affects the fairness, integrity, or public reputation of judicial proceedings. United States v. Gonzalez–Huerta, 403 F.3d 727, 732 (10th Cir.2005).

Mr. Burns has established plain error. The district court restricted his contact with a family member without making the constitutionally required findings. If the court had addressed these findings, there is a reasonable probability that the court wouldn't have restricted Mr. Burns's contact with S.B. Thus, we vacate the restriction that requires probation office approval for Mr. Burns to contact his daughter and remand for reconsideration of this restriction.

A. Error

Mr. Burns has shown that the district court made an error.²

A district court has broad discretion to impose conditions on supervised release. United States v. Mike, 632 F.3d 686, 692 (10th Cir.2011). But when a court imposes a special condition that invades a fundamental right or liberty interest, the court must justify the condition with compelling circumstances. Id. at 1284.

Mr. Burns has a fundamental liberty interest that is invaded by the special condition, for “a father has a fundamental liberty interest in maintaining his familial relationship with his [child].” United States v. Edgin, 92 F.3d 1044, 1049 (10th Cir.1996). Thus, the circumstances had to be compelling before the district court could restrict Mr. Burns's contact with S.B. See United States v. Lonjose, 663 F.3d 1292, 1303 (10th Cir.2011) (stating that a similar condition interfered with the right of familial association); Edgin, 92 F.3d at 1049 (remanding for reconsideration of a sentence when the court prohibited contact without justification).

The district court failed to make the required findings, as the government conceded in oral argument. Oral Arg. 23:38–47; 31:00–22. Thus, the district court erred by failing to justify the invasion on Mr. Burns's fundamental right of familial association.

B. Plain

Mr. Burns must also show that the error was plain. “An error is plain if it is ‘clear and obvious under current law.’ ” United States v. Brown, 316 F.3d 1151, 1158 (10th Cir.2003) (quoting United States v. Fabiano, 169 F.3d 1299, 1302–03 (10th Cir.1999)).

Our precedents unambiguously require supporting findings when courts impose special conditions of supervised release. Edgin, 92 F.3d at 1049; United States v. Smith, 606 F.3d 1270, 1283 (10th Cir.2010); United States v. Hahn, 551 F.3d 977, 982–83 (10th Cir.2008). This precedent was “clear and obvious” when Mr. Burns was sentenced in April 2013. Thus, the error was plain under current law.

C. Affects Substantial Rights

Mr. Burns has satisfied his burden to show that the court's error affects his substantial rights. But for the district court's error, a reasonable probability exists that the court would not have restricted Mr. Burns's contact with S.B.

An error affects substantial rights if there is a reasonable probability that the error affected the outcome of the proceedings. United States v. Marcus, 560 U.S. 258, 262, 130 S.Ct. 2159, 176 L.Ed.2d 1012 (2010). In the sentencing context, we ask: Is there a reasonable probability that but for the court's error, Mr. Burns would have received a lesser sentence? See United States v. Trujillo–Terrazas, 405 F.3d 814, 819 (10th Cir.2005) (reviewing an application of the sentencing guidelines for plain error).

To resolve this question, we analyze the requirements for imposing a special condition of supervised release. Courts may impose a special condition if two requirements are met:

1. The condition is reasonably related to the nature and circumstances of the offense and the history and characteristics of the defendant.

2. The condition involves no greater deprivation of liberty than is reasonably necessary.

United States v. Hahn, 551 F.3d 977, 983 (10th Cir.2008). To be valid, the condition must satisfy both requirements. Hahn, 551 F.3d at 983–84.

The condition likely fails under the second requirement. At sentencing, neither the pretrial services officer nor government counsel spoke of a need to restrict Mr. Burns's right to visit his daughter.³ As a result, if the district court had addressed the issue, it probably would not have restricted contact with S.B.

Because of the burden on Mr. Burns's constitutional right of familial association, the restriction is valid only if Mr. Burns presents a danger to S.B. United States v. Lonjose, 663 F.3d 1292, 1303 (10th Cir.2011). But, the record is not sufficient for us to make this determination in the first instance. There is no evidence that Mr. Burns has abused or sexually molested children, and the record indicates that Mr. Burns has a positive relationship with four of his five children. II App. at 8–9. Thus, there was little to support a restriction on Mr. Burns's contact with S.B.

The government argues that the condition was appropriate because it provides an alternative for Mr. Burns “to pursue contact with his daughter, while still providing needed protection for her and other children.” Aplee's Br. at 16. But the district court probably would have rejected this alternative in light of the absence of any evidence or argument on a need to protect S.B. from Mr. Burns. See Lonjose, 663 F.3d at 1303 (stating that a restriction on contact with the defendant's young relatives violated the Constitution notwithstanding the allowance of contact upon permission by a probation officer); ⁴see also United States v. Doyle, 711 F.3d 729, 736 (6th Cir.2013) (holding that the imposition of special conditions of supervised release for a sex offender, without the required findings, affected the defendant's substantial rights because a reasonable probability existed that the court may not have imposed the special conditions if it had explained the basis for the conditions or made sure that the record supported the conditions); United States v. Perazza–Mercado, 553 F.3d 65, 78 (1st Cir.2009) (holding that the erroneous imposition of a condition of supervised release, which banned possession of all pornography by a sex offender, affected the defendant's substantial rights because the lack of explanation for the ban created a reasonable probability that the court might not have imposed the condition if it had explained the basis for the condition or made sure that “the record illuminated the basis for the condition”).

D. Seriously Affects Judicial Proceeding

Finally, Mr. Burns has shown that the error “ ‘seriously affects the fairness, integrity, or public...