United States v. Tang

• Decision Date: 16 May 2013
• Docket Number: No. 12–20043.,12–20043.
• Parties: UNITED STATES of America, Plaintiff–Appellee v. David Hien Vinh TANG, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

718 F.3d 476

UNITED STATES of America, Plaintiff–Appellee

v.David Hien Vinh TANG, Defendant–Appellant.

No. 12–20043.

United States Court of Appeals,Fifth Circuit.

May 16, 2013.

Paula Camille Offenhauser, Renata Ann Gowie, Assistant U.S. Attorneys, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff–Appellee.

Marjorie A. Meyers, Federal Public Defender, Sarah Beth Landau, Assistant Federal Public Defender, Federal Public Defender's Office, Southern District of Texas, Houston, TX, for Defendant–Appellant.

David Hien Vinh Tang, Houston, TX, pro se.

Appeals from the United States District Court for the Southern District of Texas.

Before JOLLY, GARZA, and OWEN, Circuit Judges.

PER CURIAM:

David Hien Vinh Tang pleaded guilty to failing to register as a sex offender after traveling in interstate commerce in violation of 18 U.S.C. § 2250(a). He appeals three conditions of his supervised release. First, he appeals a ban on Internet use without permission of his probation officer. Second, he appeals certain aspects of a requirement that he participate in mental health or sex offender treatment. Third, he appeals a restriction on contact with minors, including children of his own, part of which is a ban on dating people with minor children. We AFFIRM in part and VACATE in part.

I

In 2003, Tang was convicted under Iowa law of assault with intent to commit sexual abuse, not causing bodily injury. IOWA CODE § 709.11. Tang, drunk at the time of the offense, touched a thirteen year old girl's breast and kissed her in an automobile. The offense occurred after the untimelydeath of Tang's seven year old daughter, who fought leukemia for four years. Tang turned himself in for the offense, and, for the next eight years, compliantly registered as a sex offender. The 2003 Iowa offense is his only criminal conviction.

In 2011, Tang moved to Texas to pursue new work opportunities and a romantic relationship. Before leaving Iowa, Tang notified his probation officer, and, upon arriving in Texas, Tang went to the Houston Police Department (“HPD”) to register and was told to return for a sex offender registration information session. Tang returned and attended the information session, but was asked to return again because HPD did not yet have Tang's requisite documentation from Iowa. As instructed, Tang went to the HPD a third time to register, but he was turned away because HPD still did not have all the requisite materials to complete his registration. Although Tang was asked to return to HPD for a fourth visit scheduled for June 1, 2011 to finish the process, he did not. Nor did he register as a sex offender with the Harris County Sheriff's Office. Thus, he failed to comply with federal law, which required him to register. 18 U.S.C. § 2250(a).

After determining that Tang was required to register as a sex offender in Texas and that he had failed to do so, the Texas Department of Public Safety notified the United States Marshal Service. The Marshal Service tried to find Tang at the address he had provided during each of his visits to HPD but was unable to do so because the address was at a residential location that Tang did not own and at which Tang did not reside. The owner informed the Marshal Service that he had given permission to Tang's girlfriend to use the address to register for a cell phone.¹ Eventually, the Marshal Service was able to locate Tang at another address in Cypress, Texas. Tang was arrested and charged with a one count indictment of failing to register as a sex offender after traveling in interstate commerce, in violation of 18 U.S.C. § 2250(a).

At sentencing, Tang waived the United States Probation Office's preparation of a presentence investigative report (“PSR”) and pled guilty. In the oral pronouncement of sentence, the district court imposed a “[split] sentence at the low end of the eligible guideline range” consisting of three months of imprisonment, three months of community supervision, and five years of supervised release. Three conditions of Tang's supervised release are at issue in this appeal: (1) a ban on computer and Internet use, (2) sex offender-related mental health treatment (including potential physiological testing and a potential waiver of confidentiality), and (3) a restriction on contact with minors and persons whom Tang may date.

At sentencing, the court stated the following regarding the Internet ban:

The defendant shall not subscribe to any computer online service or access any internet service during the length of his supervision unless approved in advance by the probation officer.

The defendant may not possess internet cable software on any hard drive, disk, floppy disk, DVD, diskette, or any other electronic storage media unless approved in advance by the probation officer.

Tang's lawyer objected to this condition by saying, “I just wanted to add one more objection, which is to the restriction of no online service or cable software so that he could use the Internet.” Twice, Tang's lawyer stated that her understanding that the ban would prevent Tang from accessing the Internet in his home was the root of her objection.

Regarding the treatment program, the court explained:

The defendant shall participate in a mental health program—treatment program and/or sex offender treatment program provided by the registered sex offender treatment provider, as approved by the United States Probation Office, which may include but not be limited to group and/or individual counseling sessions and or polygraph testing or medical-physiological testing to assist in treatment and case monitoring administered by the sex offender contractor or their designee.

The defendant shall participate as instructed and shall abide by all policies and procedures of the sex offender program until such time as the defendant is released from the program as approved by the United States probation officer.

The defendant will incur any costs associated with such sex offender treatment program and testing based on ability to pay as determined by the probation officer.

The defendant shall waive his or her right to confidentiality in any records for mental health treatment imposed as a consequence of his judgment, allowing the supervising United States probation officer to review the defendant's course of treatment and progress with the treatment provide—and progress with the treatment provider.

Tang's lawyer objected, saying the potential physiological testing “seems greater than necessary to achieve the goals of 3553” ² and that “even group [ ] counseling—and that he waived confidentiality for any counseling that he receives appears greater than necessary to achieve the goals.” Later, counsel repeated that she “vehemently emphasized [her] objection to physiological mental health treatment, whatever that might entail” as being “vague and overbroad” and not related to his underlying offense of failing to register.

Regarding the restriction on contact with minors, the court stated:

The defendant shall not have any contact with any minor children under the age of 18 without prior written permission of the probation officer.

The defendant shall not cohabitate with anyone who has children under the age of 18 unless approved in advance by the probation officer.

The probation officer present clarified that the restriction does apply to one's own children. As she did with the two conditions discussed above, Tang's counsel objected to the restriction, saying, “I ... object to the no contact with a child under 18 without permission and no cohabitation.”

The court overruled all of Tang's objections; therefore, the Internet ban, mental health and sex offender treatment, and restriction on contact with minors all applied as conditions of Tang's supervised release. In the section restricting contact with minors, the written judgment changed “shall not cohabitate with” to “shall not date or cohabitate with.” Tang timely appealed these conditions, including the change in the written judgment.

II

We “first ensure that the district court committed no significant procedural error, such as ... failing to adequately explain the chosen sentence.” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). If there is no procedural error, we “then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard ... tak[ing] into account the totality of the circumstances.” Id. “To preserve error, an objection must be sufficiently specific to alert the district court to the nature of the alleged error and to provide an opportunity for correction.” United States v. Neal, 578 F.3d 270, 272 (5th Cir.2009). We review the imposition of conditions of supervised release for abuse of discretion. United States v. Paul, 274 F.3d 155, 165 (5th Cir.2001). However, “[w]hen a defendant objects to his sentence on grounds different from those raised on appeal, we review the new arguments raised on appeal for plain error only.” United States v. Medina–Anicacio, 325 F.3d 638, 643 (5th Cir.2003).

III

Although a district court generally has extensive discretion in imposing conditions of supervised release, its discretion is limited by 18 U.S.C. § 3583(d), which provides that the district court may impose conditions of supervised release that are reasonably related to the factors in 18 U.S.C. § 3553(a). 18 U.S.C. § 3583(d)(1). Section 3553(a) states in relevant part that the district court shall consider, inter alia, the following four factors: (1) “the nature and circumstances of the offense and the history and characteristics of the defendant;” (2) “the need ... to afford adequate deterrence to criminal conduct;” (3) “the need ... to protect the public from further crime of the defendant;” and (4) “the need ... to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.” 18 U.S.C. § 3553(a)(...