USA v. Simons

• Citation: 614 F.3d 475
• Decision Date: 21 July 2010
• Docket Number: No. 09-2142.,09-2142.
• Parties: UNITED STATES of America, Appellee, v. Jerry Lynn SIMONS, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

614 F.3d 475

UNITED STATES of America, Appellee,

v.Jerry Lynn SIMONS, Appellant.

No. 09-2142.

United States Court of Appeals,Eighth Circuit.

Submitted: March 10, 2010.

Filed: July 21, 2010.

COPYRIGHT MATERIAL OMITTED.

Jennifer L. Gilg, argued, Shannon Patrick O'Connor, AFPD, on the brief, Omaha, NE, for appellant.

Michael P. Norris, AUSA, argued, Omaha, NE, for appellee.

Before SMITH, BENTON, and SHEPHERD, Circuit Judges.

SHEPHERD, Circuit Judge.

Jerry Simons pled guilty to failing to register as required by the Sex Offender Registration and Notification Act (SORNA), 42 U.S.C. §§ 16901-16991, in violation of 18 U.S.C. § 2250(a). The district court sentenced Simons to 24 months imprisonment and 20 years of supervised release. In addition to the standard conditions of supervised release, the court imposed 18 special conditions. Simons appeals four of those special conditions. Because the district court plainly erred in imposing one of the special conditions, we affirm in part, reverse in part, and remand for further proceedings.

I.

On December 4, 2008, a criminal complaint was filed against Simons, charging him with failure to register as a sex offender as required by SORNA, in violation of 18 U.S.C. § 2250(a). The following day, Simons was arrested by United States Marshals in Omaha, Nebraska. A grand jury returned an indictment against Simons on December 17, charging that, having previously been convicted in Kansas of an offense that required him to register as a sex offender, he traveled in interstate commerce to Nebraska and failed to register there. On January 29, 2009, Simons pled guilty pursuant to a plea agreement.

The Presentence Investigation Report (PSR) identified two prior convictions that are relevant here: (1) a 2003 Kansas conviction for attempted indecent liberties with a child, for which Simons received 24 months probation, ¹ and (2) a 2005 Oklahoma conviction for first degree rape by force and fear, for which Simons received a 30-year suspended sentence. As a result of his 2003 Kansas conviction, Simons was required to register as a sex offender under SORNA; Simons had last registered in Kansas in 2007. Simons had a base offense level of 16, which the district court reduced to 13 based on his acceptance of responsibility pursuant to United States Sentencing Commission, Guidelines Manual, § 3E1.1(b) (Nov.2009). Given Simons's 4 criminal history points, his advisory Guidelines sentencing range was 24-30 months imprisonment. Pursuant to the plea agreement, both parties asked the district court to sentence Simons at the low end of the Guidelines range. The plea agreement was silent as to any conditions of supervised release to be imposed by the court.

The district court followed the parties' recommendations and sentenced Simons to 24 months imprisonment. The court also placed Simons on supervised release for a term of 20 years. In addition to the standard conditions of supervised release, the district court imposed 18 special conditions of release recommended by the probation office, of which 4 are relevant here:

3. Paragraph # 7 of the Standard Conditions of supervision is modified, i.e., instead of merely refraining from excessive use of alcohol, the defendant shall not purchase or possess, use, distribute, or administer any alcohol, just the same as any other narcotic or controlled substance....

5. The defendant shall have no contact, nor reside with children under the age of 18, including his/her own children, unless approved in advance by the U.S. Probation Officer in consultation with the treatment providers. The defendant must report all incidental contact with children to the U.S. Probation Officer and the treatment provider. Should the defendant have incidental contact with a child, the defendant is required to immediately remove him/herself from the situation and notify his/her U.S. Probation Officer within 24 hours of this contact.

6. The defendant shall not access or come within 500 feet of schools, school yards, parks, arcades, playgrounds, amusement parks, or other places used primarily by children under the age of 18 unless approved in advance by the U.S. Probation Officer....

13. The defendant shall neither possess nor have under his/her control any material, legal or illegal, that contains nudity or that depicts or alludes to sexual activity or depicts sexually arousing material. This includes, but is not limited to, any material obtained through access to any computer, including a computer for employment purposes, or any other material linked to computer access or use.

(Appellant's Add. 4-5.) The district court did not explain why it imposed any of the special conditions, noting only that 20 years of supervised release was “the best thing that we can do to help [Simons] and to keep him in line.” (Sentencing Hr'g Tr. 8.) Because Simons's attorney had not discussed the probation office's sentencing recommendations with him, Simons first learned of these special conditions at his sentencing hearing. Simons objected to the special conditions generally, but did not note any specific condition to which he objected or present any argument to support his objection. The district court denied the objection, and this appeal followed.

II.

Simons appeals the imposition of the four special conditions of his supervised release detailed above. We generally review the imposition of special conditions for an abuse of discretion. See United States v. Carlson, 406 F.3d 529, 531 (8th Cir.2005); United States v. Boston, 494 F.3d 660, 667 (8th Cir.2007). However, when, as here, a defendant fails to timely and specifically object to such conditions at the sentencing hearing, we review only for plain error. See United States v. Stults, 575 F.3d 834, 854 (8th Cir.2009), cert. denied, --- U.S. ----, 130 S.Ct. 1309, --- L.Ed.2d ---- (2010); Carlson, 406 F.3d at 531. In their briefing to this court, both parties argued that we should review for abuse of discretion. For the first time at oral argument, however, the government argued that Simons's objection at the sentencing hearing was insufficient to preserve the issue for appeal, therefore we should review only for plain error. Having reviewed the transcript of the sentencing hearing, it appears that Simons's attorney presented only a general objection to the special conditions imposed by the court, noting neither the basis for his objection nor the specific conditions to which he was objecting. ( See Sentencing Hr'g Tr. 14 (“Judge, my client has got some-some concerns, and probably the best thing to do would be just me object to the-to the special conditions and then I talk to him and at least there's a record there in case he needs to appeal them.”).) Thus, we must review only for plain error. ² “Plain error occurs if the district court deviates from a legal rule, the error is clear under current law, and the error affects the defendant's substantial rights.” United States v. Crose, 284 F.3d 911, 912 (8th Cir.2002) (per curiam). The error must also “seriously affect the fairness, integrity or public reputation of judicial proceedings.” United States v. Davis, 452 F.3d 991, 994 (8th Cir.2006) ( quoting United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)).

Although a district court “is afforded wide discretion when imposing terms of supervised release,” United States v. Crume, 422 F.3d 728, 732 (8th Cir.2005), 18 U.S.C. § 3583(d) limits that discretion, providing that a court may impose special conditions only if three requirements are met:

First, the special conditions must be “reasonably related” to five matters: the nature and circumstances of the offense, the defendant's history and characteristics, the deterrence of criminal conduct, the protection of the public from further crimes of the defendant, and the defendant's educational, vocational, medical or other correctional needs. 18 U.S.C. §§ 3583(d)(1), 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D); United States v. Fields, 324 F.3d 1025, 1026-27 (8th Cir.2003). Second, the conditions must “involve[ ] no greater deprivation of liberty than is reasonably necessary” to advance deterrence, the protection of the public from future crimes of the defendant, and the defendant's correctional needs. 18 U.S.C. §§ 3583(d)(2), 3553(a)(2)(B), (a)(2)(C), (a)(2)(D). Finally, the conditions must be consistent with any pertinent policy statements issued by the sentencing commission. 18 U.S.C. § 3583(d)(3).

Crume, 422 F.3d at 733. This “inquiry must take place on an individualized basis.” United States v. Bender, 566 F.3d 748, 752 (8th Cir.2009) (quotation omitted). Applying these standards, we consider each of Simons's objections in turn.

A.

It is a standard condition of supervised release that the defendant “refrain from excessive use of alcohol.” U.S.S.G. § 5D1.3(c)(7). Special condition 3 modifies that standard condition, providing that Simons “shall not purchase or possess, use, distribute, or administer any alcohol.” Simons argues that this condition is not reasonably related to him, his offense, deterrence, or protection of the public, as required by 18 U.S.C. § 3583(d)(1). He argues that there is no evidence that he is an alcohol abuser or that alcohol contributed in any way to his present conviction. The government counters that Simons's self-reported manic-depressive disorder, ³ combined with his dishonesty about his alcohol use, was a sufficient basis for the district court to impose a complete ban on alcohol.

The evidence before the district court at the sentencing hearing was that Simons consumed alcohol one to three times per month, with his last reported use in December 2008. Simons also reported that he first used marijuana at the age of 12, and that he used it a few times until June 2003. Simons reported that he was diagnosed with manic-depressive disorder as a child and that he was prescribed and took medication for this condition while he was...