United States v. Floss
| Decision Date | 29 July 2022 |
| Docket Number | 21-1870 |
| Citation | 42 F.4th 854 |
| Parties | UNITED STATES of America, Plaintiff - Appellee v. Brian Don FLOSS, Defendant - Appellant |
| Court | U.S. Court of Appeals — Eighth Circuit |
Counsel who represented the appellant was Sylvia Talley, AFPD, of Little Rock, AR.
Counsel who represented the appellee was Joan Shipley, AUSA, of Little Rock, AR.
Before LOKEN, GRUENDER, and GRASZ, Circuit Judges.
Brian Don Floss pleaded guilty to knowingly failing to provide information and then engaging in intended travel in foreign commerce in violation of 18 U.S.C. § 2250(b), part of the Sex Offender Registration and Notification Act ("SORNA"). The district court1 sentenced him to 36 months imprisonment and 15 years of supervised release, including "up to" three years of home detention in Special Condition 1 of his supervised release. Floss appeals, arguing the court (i) procedurally erred and imposed a substantively unreasonable term of imprisonment; (ii) procedurally erred in determining his supervised release advisory guidelines range and failed to adequately explain why it imposed a 15-year term; and (iii) erred in imposing sex-offender-related special conditions of supervised release. We affirm the sentence but remand with instructions to amend the written judgment to conform to the court's oral pronouncement of Special Condition 1 at sentencing.
Floss was convicted of second-degree sexual assault in Arkansas state court in February 2003, an offense requiring him to register under the Arkansas Sex Offender Registration Act of 1997. See Ark. Code Ann. § 12-12-901 et seq. At the time of his arrest, Floss was an elementary school teacher. The victim, B.H., was one of his third-grade students. The Arkansas Sex Offender Assessment Committee later classified Floss as a Level 4 "sexually dangerous person," the highest assigned risk level, in a procedure that is subject to administrative and judicial review. See § 12-12-918; see generally Weems v. Little Rock Police Dep't, 453 F.3d 1010, 1012-13 (8th Cir. 2006), cert. denied, 550 U.S. 917, 127 S.Ct. 2128, 167 L.Ed.2d 862 (2007). Arkansas requires lifetime registration for a Level 4 offender. § 12-12-919(a)(2). In addition, SORNA requires Floss to register in the State where he resides, 42 U.S.C. §§ 16911(1), 16913(a), and provides that knowing failure to do so is a federal offense, 18 U.S.C. § 2250(a).
SORNA also provides that Floss must notify his probation officer of intended international travel 21 days in advance of such travel. See 18 U.S.C. § 2250(b) ; 34 U.S.C. § 20914(a)(7). While registering in January 2020, Floss signed a form verifying that he understood his international travel reporting responsibility. Without reporting beforehand, Floss departed Little Rock, Arkansas, on March 7, 2020, arriving in Ukraine the next day. COVID-19 restrictions extended his travel. He returned to the United States on May 30. This prosecution followed.
At sentencing, the government urged imprisonment for 48 to 60 months, an upward variance from the advisory guidelines range of 18 to 24 months. In support, it offered an April 2014 Sex Offender Community Notification Assessment Report ("SOCNA"), prepared as part of the Arkansas Department of Corrections risk classification process. Floss objected to the report's accuracy and reliability. The court admitted the report and found by a preponderance of the evidence that Floss has a long-standing sexual attraction to 9- to 11-year-old girls and has offended a total of 10 to 12 victims between the ages of 9 to 11. These additional victims led the court to conclude that the Presentence Investigation Report ("PSR") under-represented Floss's criminal history at Category III, warranting an above-guidelines range sentence. But the court stated that 48 months "for a SORNA violation of this kind is just too long" and sentenced Floss to 36 months imprisonment.
Regarding supervised release, the PSR correctly noted that the statutory range is five years to life, see 18 U.S.C. § 3583(k), and the relevant guideline provision is USSG § 5D1.2(b). Floss's response to the government's upward variance motion noted that Application Note 1 to § 5D1.2(b) expressly provides that the term "sex offense" "does not include an offense under 18 U.S.C. § 2250 (Failure to register)." However, at sentencing, the district court stated:
With respect to the guidelines since the statute requires a term of supervised release of five years ... the guidelines requirement for a term of supervised release is five years to life. That's from U.S.S.G. 5D1.2(b).
The court asked if defense counsel agreed with this statement. Counsel responded, "Yes, sir." After lengthy argument regarding the term of imprisonment, the court imposed a prison term of 36 months to be followed by "supervised release for a term of 15 years." The court then asked if defense counsel has "any objection to the form of the sentence." The response:
Floss argues that the district court procedurally and substantively erred when it failed to adequately explain his sentence. By sentencing Floss to 36 months of imprisonment and 36 months of home detention, he contends that the district court imposed a sentence of 72 months of "confinement," a sentence that cannot be reconciled with the court's statement that 48 months of imprisonment "for a SORNA violation of this kind is just too long." This contention is without merit.
A person found guilty of a federal offense shall be sentenced to a term of probation, a fine, or "a term of imprisonment as authorized by subchapter D." 18 U.S.C. § 3551(a) - (b). Subchapter D provides that "[a] defendant who has been found guilty of an offense may be sentenced to a term of imprisonment." § 3581(a). In determining whether to impose a term of imprisonment, the court "shall consider the factors set forth in section 3553(a) to the extent that they are applicable." § 3582(a). In imposing the sentence, the court "may include as a part of the sentence a requirement that the defendant be placed on a term of supervised release after imprisonment. " § 3583(a) (emphasis added). "Home detention may be imposed as a condition of probation or supervised release, but only as a substitute for imprisonment ." USSG § 5F1.2 (emphasis added). The plain meaning of these governing provisions makes clear what common sense teaches -- home detention may be a form of "confinement," but it is not "imprisonment." Thus, the district court did not procedurally or substantively err when it thoroughly but separately explained why it was imposing a 36 month term of imprisonment and up to 36 months of home detention as a special condition of supervised release.
A. Floss first argues his supervised release sentence must be reversed because the district court procedurally erred in calculating the advisory guidelines range under USSG § 5D1.2. For the following reasons, we disagree.
At sentencing, the district court stated: Defense counsel, authorized to speak for Floss on this issue, agreed. Under United States v. Olano, 507 U.S. 725, 732-35, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), that should have waived the issue. See Fed. R. Crim. P. 51(b) ; United States v. Williams, 994 F.2d 1287, 1294 (8th Cir. 1993). If the issue was forfeited but not waived, our review is for plain error. Fed. R. Crim. P. 52(b). Plain error review is governed by a four-part test:
before an appellate court can correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.
Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (cleaned up). Floss has the burden of proving plain error. Olano, 507 U.S. at 734-35, 113 S.Ct. 1770. "Appellate review under the plain-error doctrine ... is circumscribed and we exercise our power under Rule 52(b) sparingly." Jones v. United States, 527 U.S. 373, 389, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999).
As the PSR and the district court noted, the statutory supervised release range for a SORNA offense is 5 years to life. See 18 U.S.C. § 3583(k), which expressly provides that the authorized term for a list of offenses including 18 U.S.C. § 2250 "is any term of years not less than 5, or life." As relevant here, Section 5D1.2 of the Guidelines provides:
The term "sex offense" is defined in Application Note 1. In Amendment 786, effective November 1, 2014, the Sentencing Commission, to resolve a perceived circuit conflict, amended Application Note 1 to provide, "Such term does not include an offense under 18 U.S.C. § 2250 (Failure to register)." USSC Guidelines Manual, 2021 Supp. to App'x C, at 74-77. The Commission explained:
If a failure to register is a sex offense, then [ § 5D1.2 ](b) specifically provides for a term of supervised release of anywhere from the minimum provided by subsection (a) to the maximum provided by statute (i.e....
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