United States v. Zabel

• Decision Date: 23 May 2022
• Docket Number: 21-5766
• Citation: 35 F.4th 493
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jason ZABEL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

35 F.4th 493

UNITED STATES of America, Plaintiff-Appellee,

v.Jason ZABEL, Defendant-Appellant.

No. 21-5766

United States Court of Appeals, Sixth Circuit.

Decided and Filed: May 23, 2022

ON BRIEF: Frank W. Heft, Jr., Donald J. Meier, OFFICE OF THE FEDERAL DEFENDER, Louisville, Kentucky, for Appellant. Monica Wheatley, UNITED STATES ATTORNEY'S OFFICE, Louisville, Kentucky, for Appellee.

Before: SUTTON, Chief Judge; COLE and DONALD, Circuit Judges.

BERNICE BOUIE DONALD, Circuit Judge.

Mammoth Cave National Park in Kentucky is home to the world's longest known cave system, spanning more than 400 miles.¹ It is also where Jason Zabel committed abusive sexual contact against a female National Park Service employee—a crime for which he pled guilty and received a sentence of 18 months’ imprisonment, followed by a life term of supervised release. On appeal, Zabel argues that the district court erred in denying his pre-guilty-plea motion to suppress incriminating statements he made to park rangers and that his sentence—both the term of incarceration and lifetime supervision—was procedurally and substantively unreasonable. He also contends that his statutory maximum term of supervised release violates the Eighth Amendment's prohibition against cruel and unusual punishment. For the following reasons, we affirm the district court's judgment and sentence.

I.

On August 4, 2020, United States Park Ranger William Jaynes responded to an incident report at Mammoth Cave. When he arrived at the parking lot, he encountered a "slightly out of breath" female archaeology technician whose job was to monitor a trail restoration project inside the cave. She explained that Jason Zabel, one of the contractors working on the restoration project, had just pinned her against a wall and attempted to kiss her, grabbed her buttocks and breasts, and exposed his penis to her without her consent while she was leaving the cave. Armed with a description of Zabel's appearance and location, Ranger Jaynes and another park ranger who arrived on the scene entered the cave to find him.

The park rangers used an elevator to enter the cave and then walked approximately 25 minutes through its dark, narrow passages until they heard a group of workers speaking. Ranger Jaynes recorded the ensuing encounter from his body camera, which began with the park rangers introducing themselves to the group as law enforcement officers. They then asked: "Is there somebody here named Jason?" When Zabel raised his hand and confirmed his identity, the rangers said: "Come this way and chat with us for a few minutes."

Zabel followed the park rangers around the corner for less than 2 minutes where his coworkers could not hear their conversation. There, Zabel asked if he could use the restroom, and the park rangers replied: "Is there a bathroom around here?" Zabel stated there was a restroom near the cave's entrance, but the rangers responded that "we're quite a ways from there" and "you're going to have to hold it for a few minutes."

Before the park rangers told Zabel about the accusations made against him, they explained that he was "not under arrest," that he was "free to go," that he had "no warrants," that he did not have to talk to them, that it was his "option" to do so, and that they would much rather he be quiet than lie to them. As an alternative to using the restroom near the cave's entrance, Zabel requested to walk to a nearby location where there were "a couple of empty buckets" because he was unsure how "much further than that [he'd] be able to make it." The park rangers responded "alright, first," and then proceeded to question Zabel about what happened with the female employee that morning.

Zabel made several incriminating statements during the interview, including that he had grabbed the female employee's butt in the elevator, asked to kiss her, and showed her his penis, during which he "may have been a little" erect or excited. The interview lasted less than 20 minutes, after which the park rangers told Zabel he would need to exit the cave with them. The rangers frisked Zabel for weapons and eventually allowed him to use the restroom, but they did not handcuff him until they reached the cave's surface due to the potentially dangerous nature of the walk out.

Zabel was later indicted for knowingly engaging in sexual contact with another person without that other person's permission, in violation of 18 U.S.C. § 2244(b). Zabel moved to suppress his incriminating statements, arguing that the park rangers improperly solicited those statements during a custodial interrogation without first advising him of his Miranda ² rights. The magistrate judge recommended that the motion be denied in relevant part because Zabel was not "in custody" for purposes of Miranda until the park rangers patted him down and told him to exit the cave. The district court adopted the recommendation over Zabel's objections, agreeing that the park rangers were not required to provide Zabel the Miranda warnings because, under the totality of the circumstances, he was not in custody during the interview. After failing to suppress his incriminating statements, Zabel pled guilty, without a plea agreement, to the single charge in the indictment, and admitted that he "intentionally grabbed the victim's buttocks and clothing with an intent to gratify his own sexual desire, all without the victim's consent."

On June 9, 2021, the probation office circulated a Presentence Investigation Report ("PSR") describing the offense conduct above based on Zabel's admissions and what the victim told Ranger Jaynes in the Mammoth Cave parking lot. On July 6, 2021, more than two weeks before Zabel's sentencing date, the probation office circulated a revised PSR that contained "more detailed information regarding the victim's account of the offense" than was included in the initial report, indictment, or factual basis presented at the guilty-plea hearing. Zabel's counsel indicated that he discussed these "previously unknown allegations" from the revised PSR with Zabel sometime on or before July 14, 2021, and that Zabel denied some of those allegations.

Based on the revised PSR, the government's July 12, 2021 sentencing memorandum sought an upward variance and an upward departure under U.S.S.G. § 5K2.8 for Extreme Conduct because Zabel's behavior was more egregious than what constitutes a typical abusive sexual contact. One day before the sentencing hearing, the government also sought to resolve the parties’ remaining factual disputes by filing under seal Ranger Jaynes’ written incident report and the victim's videotaped interview from August 5, 2020. The government simultaneously provided copies of these exhibits to Zabel's counsel, but technical issues prevented him from reviewing the victim's recorded statement before the hearing.

As the district court noted at the July 22, 2021 sentencing hearing, the victim's recorded statement did not contradict anything in the indictment or the factual basis for the guilty plea, but it certainly "paint[ed] a much more serious picture" of what happened in the cave. In it, the victim described in detail that as she was attempting to leave the cave, Zabel (who she had only seen in passing a few times) followed her, grabbed her arm, and made suggestive comments towards her, including that he wanted to see her in a bikini. When the victim made it halfway out of the cave, Zabel asked to touch her buttocks, asked where she lived, and said he wanted to wake up next to her in the morning. Zabel then ran ahead of the victim, and his persistent advances quickly turned physical. And before the victim could surface from the cave, Zabel had cornered her against a wall, attempted to kiss her, placed his arm around her, grabbed her buttocks, breasts, and pubic area over her clothes, asked for oral sex, exposed his penis, and masturbated in front of her, all while making repeated sexual comments. She said she felt trapped in the cave and that Zabel's advances were "very unwanted." Ranger Jaynes included a summary of these statements in his written report.

Before proceeding with sentencing, the district court recessed for over an hour so that Zabel and his counsel could review the victim's video-recorded statements. The district court also provided Zabel an opportunity to testify if he disagreed with anything the victim said, but Zabel declined to do so. As a result, the district court relied on the victim's statements and sentenced Zabel to 18 months’ imprisonment due to his background, the severity of his crime and its impact on the victim, the need to punish him for the offense, and the need to deter others from engaging in similar conduct. The criminal judgment reflects that this sentence was both an upwards departure under U.S.S.G. § 5K2.8 and an upwards variance.³ The district court also imposed a life term of supervised release following Zabel's release from custody.

On appeal, Zabel now challenges: (1) the district court's denial of his pre-guilty-plea motion to suppress; (2) the procedural and substantive reasonableness of both his custodial sentence and term of supervised release; and (3) whether his lifetime supervision violates the Eighth Amendment's prohibition against cruel and unusual punishment. We address each of these arguments in turn.

II.

A. Motion to Suppress

Zabel appeals the district court's denial of his motion to suppress incriminating statements he made to park rangers while in Mammoth Cave, claiming he was in custody during their interview and was not informed of his Miranda rights. As a preliminary matter, "[i]t is elemental that a guilty pleading defendant may not appeal an adverse pre-plea suppression of evidence motion unless he has preserved the right to do so by entering a conditional plea of guilty in compliance with [Federal Rule of Criminal Procedure] 11(a)(2)." United States v. Herrera , 265 F.3d 349, 352 (6th Cir. 2001). We have strictly construed Rule 11(a)(2) ’s...