United States v. McCullock

• Decision Date: 18 March 2021
• Docket Number: No. 20-1234,20-1234
• Citation: 991 F.3d 313
• Parties: UNITED STATES of America, Appellee, v. Robert MCCULLOCK, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

991 F.3d 313

UNITED STATES of America, Appellee,

v.Robert MCCULLOCK, Defendant, Appellant.

No. 20-1234

United States Court of Appeals, First Circuit.

March 18, 2021

Brendan Kelley, Assistant Federal Public Defender, for appellant.

Donald C. Lockhart, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, was on brief, for appellee.

Before Lynch, Lipez, and Thompson, Circuit Judges.

THOMPSON, Circuit Judge.

We affirm the district judge's imposition of three special conditions of supervised release. The how, what, and why behind our decision follows.

How the Case Got Here¹

Robert McCullock has spent much of his life on the wrong side of the law. And his rap sheet is quite disturbing, to say the least.

First there is his state conviction for two counts of child molestation: In separate incidents in 1999 and 2000, McCullock sexually abused five- and nine-year-old girls in Georgia. And the three-year-old brother of the five-year-old girl witnessed his sister's molestation. McCullock admitted both offenses, going so far as to reveal that he had tried to (but could not) put his penis in the five-year-old girl's vagina. He ended up with an eight-year prison sentence in 2002.

Then there is his federal conviction for using a computer to send child pornography: In 2001, while on bond during the pendency of the molestation case, McCullock participated in a child-porn file-sharing service. German police downloaded three child-porn images from his computer located in the United States (two of the images showed adult men raping girls as young as six). And Georgia police discovered hundreds of kiddie-porn images — and thousands of erased images — on a computer he had pawned. During his presentence interview in that case, he told authorities that he watched child pornography on his computer to lessen his desire to abuse children and that he "felt he had no cravings for children anymore at that point" when "he sold his computer" (these are not direct quotes from McCullock but rather probation's summary of what he said). After pleading guilty to using a computer to transport child porn, he got sentenced to ninety-two months in prison, to run consecutively with the state-prison term, and to three years of supervised release. His conditions of supervised release there included bans on committing any state or federal crime; possessing or viewing sexual materials depicting children or adults; having any contact with minors unless accompanied by an adult who is approved by probation and who knows of his child-sex-abuse history; and using or possessing a computer with internet access without probation's prior say-so.

And finally there is his state conviction for indecent assault and battery on a person over the age of fourteen: In 2017, while on supervised release for the child-porn offense, McCullock (according to a report by police in Massachusetts) tried to rape his then-girlfriend. During the violent encounter, he (according to her) said that "he was going to rape her" and that she had to " ‘suck[ ]’ and ‘fuck him’ " — and then he "threw [her] pants across the room and threw [her] on the bed numerous times." Charged with "assault to rape," he later pled down to the just-mentioned indecent-assault-and-battery offense. This time he got two years in prison.

McCullock's last run-in with the law resulted in the revocation of his supervised release — the revocation occurred after his stint in state prison for what he had done to his onetime-girlfriend and after his civil commitment as a sexual predator. We will have more to say about the revocation later. But for now it is enough to note that following a hearing, a district judge sentenced him to six months in prison plus thirty months (or 2½ years) of supervised release, and imposed a series of special post-release conditions suggested by probation in its violation report. Three are relevant here.

Special condition 6 says that McCullock "shall not possess, access, subscribe, or view any videos, magazines, literature, or Internet websites depicting children or adults in the nude and/or engaged in sexual activities." Special condition 9 provides that McCullock "must not possess or use any computer or internet-capable device without prior approval from the Probation Office" and adds that "[a]ny such device should not be used to knowingly access or view sexually explicit materials as defined in 18 U.S.C. § 2256(2)(A)." And special condition 12 states that McCullock "must not knowingly have direct contact, or contact through a 3rd party, with children under the age of 18, unless previously approved by the Probation Office, or in the presence of a responsible adult who has been" preapproved "by the Probation Office, and who is aware of the nature of [McCullock's] background and current offense."²

Unhappy with these special conditions, McCullock appeals.³

What McCullock Argues And Why We Affirm

Reduced to its essence, McCullock argues that the judge "procedurally" erred by failing to adequately explain the basis for these special conditions, and then "substantively" erred by making them "overly broad" (we will give more specifics shortly) — in other words, he challenges these special conditions as "unreasonable." But like the government, we find his arguments unconvincing.

Standards of Review

We review preserved challenges to the imposition of special-supervised-release conditions for abuse of discretion and unpreserved ones for plain error. See, e.g., United States v. Vega-Rivera, 866 F.3d 14, 20 (1st Cir. 2017).

The abuse-of-discretion standard is multi-dimensional, however. Within it, we inspect fact findings for clear error, legal issues de novo (in nonlegalese, with fresh eyes), and judgment calls with some deference. See, e.g., United States v. Hood, 920 F.3d 87, 92-93 (1st Cir. 2019). And we will find an abuse of discretion only when left with a definite conviction that "no reasonable person could agree with the judge's decision." See United States v. Cruz-Ramos, 987 F.3d 27, 41 (1st Cir. 2021) (internal quotations and citation omitted).

As for plain error, the standard is quite formidable. The complaining party must show that the judge erred, and glaringly so (such that the judge should have acted without an objection from counsel), and that the error affected that party's substantial rights — typically, because it likely influenced the proceeding's outcome. See United States v. Takesian, 945 F.3d 553, 565 (1st Cir. 2019). And even if he meets those conditions, we will use our discretion to fix the error only if he also shows that it "seriously imperil[s]" the judiciary's public reputation. See id.; see also Cruz-Ramos, 987 F.3d at 39.

Explanation

(The Procedural-Reasonableness Challenges)

We begin with McCullock's procedural-reasonableness challenges to the sufficiency of the judge's explanation for the special conditions, starting with conditions 6 and 9 — which (to borrow McCullock's paraphrase) ban, for 2½ years, "any possession or access to materials involving adult nudity or sexual activity."⁴

The parties dispute what standard of review applies to this aspect of McCullock's procedural-reasonableness claim. McCullock pushes for abuse of discretion, the government for plain error. We side with the government.

True, as both sides agree, McCullock objected to special conditions 6 and 9, telling the judge in his predisposition memo and at the final revocation hearing that nothing in the record supported adult-content restrictions. And having read every word of the hearing transcript, we agree with McCullock that the judge gave no justifications for their imposition. Nor — as McCullock also notes, without contradiction from the government — did the prosecutor or probation give any justifications below.

But the hearing transcript does reveal that McCullock never objected to the judge's lack of explanation — despite having the chance to do so. And had he protested, the judge could have cured any problem then and there — thus avoiding the need for an appeal. See, e.g., Puckett v. United States, 556 U.S. 129, 134, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) (noting that plain-error review "serves to induce the timely raising of claims and objections, which gives the district court the opportunity to consider and resolve them"); United States v. Dominguez Benitez, 542 U.S. 74, 82, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004) (stating that the plain-error standard "encourage[s] timely objections and reduce[s] wasteful reversals by demanding strenuous exertion to get relief for unpreserved error"); United States v. Correa-Osorio, 784 F.3d 11, 22 (1st Cir. 2015) (explaining that the plain-error test "deters unsavory sandbagging by lawyers" — "i.e. , their keeping mum about an error, pocketing it for later just in case" things do not work out in the district court — and "gives judges the chance to fix" any problem so cases do not needlessly bounce back and forth between district and circuit courts).

Put bluntly, McCullock's objection to the substantive constraints imposed by special conditions 6 and 9 does nothing to preserve a claim that the judge did not sufficiently explain the reasons for imposing them. See United States v. Hunt, 843 F.3d 1022, 1029 n.2 (D.C. Cir. 2016) (collecting cases from other circuits). So plain-error review it is.

This hard-to-meet standard puts McCullock in a bind, however. For even if he has shown error that is plain — after all, no one "question[s] that a district court is required to provide a reasoned and case-specific explanation for the sentence it imposes," see United States v. Gilman, 478 F.3d 440, 446 (1st Cir. 2007) — he never even tries to carry his burden of showing both that the error likely changed the case's result and that enforcing these conditions in these circumstances would seriously imperil the judiciary's reputation for fairness and integrity. Which means he has not done enough here to win on plain error. See Fey, 834 F.3d 1, 7 (1st...