United States v. Eric Putnam , 806 F.3d 853 ( 2015 )


Menu:
  •      Case: 14-51238   Document: 00513286141        Page: 1   Date Filed: 11/25/2015
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 14-51238                  United States Court of Appeals
    Fifth Circuit
    FILED
    UNITED STATES OF AMERICA,                                         November 25, 2015
    Lyle W. Cayce
    Plaintiff - Appellee                                        Clerk
    v.
    ERIC STEVEN PUTNAM,
    Defendant - Appellant
    Appeal from the United States District Court
    for the Western District of Texas
    Before JOLLY, HAYNES, and COSTA, Circuit Judges.
    PER CURIAM:
    Eric Putnam appeals his 15-year term of supervised release on the
    grounds that the district court erroneously treated his conviction for failure to
    register as a sex offender as a “sex offense.” He also challenges the special
    condition of supervised release that prohibits him from consuming alcohol. For
    the reasons explained below, we VACATE the term of supervised release and
    REMAND for resentencing.
    I.
    Putnam pleaded guilty to failure to register as a sex offender in violation
    of 18 U.S.C. § 2250. That violation carries a statutory range for supervised
    release of five years to life. 18 U.S.C. § 3583(k). The Presentence Investigation
    Case: 14-51238     Document: 00513286141       Page: 2   Date Filed: 11/25/2015
    No. 14-51238
    Report (PSR) calculated the Guidelines range for supervised release the same
    as the statutory range by treating Putnam’s conviction as a sex offense under
    section 5D1.2(b)(2) of the Guidelines. It also recommended a special condition
    prohibiting him from consuming alcohol while on supervised release. The
    district court adopted the PSR and sentenced Putnam to ten months in prison
    followed by a supervised release term of 15 years with, among other conditions,
    a condition prohibiting alcohol consumption.
    II.
    Because Putnam did not object to either the length of the supervised
    release term or the alcohol condition in the district court, we review for plain
    error. See United States v. Warren, 
    720 F.3d 321
    , 332 (5th Cir. 2013). Putnam
    therefore must show a plain error that affected his substantial rights. See
    United States v. Escalante–Reyes, 
    689 F.3d 415
    , 419 (5th Cir. 2012) (en banc).
    If he can do so, we have discretion to correct the error only if it seriously affects
    the fairness, integrity, or public reputation of the proceeding. See 
    id. The government
    concedes that a plain error occurred with respect to the
    Guidelines calculation for the length of Putnam’s supervised release term.
    This court has held that failure to register under the Sex Offender Registration
    and Notification Act does not qualify as a sex offense under section 5D1.2(b)(2)
    of the Guidelines. See United States v. Segura, 
    747 F.3d 323
    , 329–31 (5th Cir.
    2014). Furthermore, amendments to the Guidelines, which took effect prior to
    Putnam’s      sentencing,      revised       the   commentary        accompanying
    section 5D1.2(b)(2) to clarify that failure to register as a sex offender does not
    constitute a sex offense. U.S. Sentencing Guidelines Manual, Supp. to App’x
    C, Amend. 786, at 80–82 (U.S. Sentencing Comm’n 2014). The Guidelines
    2
    Case: 14-51238        Document: 00513286141           Page: 3     Date Filed: 11/25/2015
    No. 14-51238
    recommendation for the length of supervised release is thus just five years,
    rather than the range of five years to life listed in Putnam’s PSR. 1
    Putnam has also met his burden of showing that the error affected his
    substantial rights. He has demonstrated “a reasonable probability that, but
    for the district court’s misapplication of the Guidelines, he would have received
    a lesser sentence.” See United States v. Mudekunye, 
    646 F.3d 281
    , 289 (5th
    Cir. 2011) (per curiam). Absent other evidence indicating that the Guidelines
    range did not influence the sentence, a defendant meets this burden “when (1)
    the district court mistakenly calculates the wrong Guidelines range, (2) the
    incorrect range is significantly higher than the true Guidelines range, and (3)
    the defendant is sentenced within the incorrect range.” 2 
    Id. Putnam’s case
    meets all three requirements as the 15-year term of supervised release, which
    1  The Guidelines provide that for all offenses the term of supervised release may not
    be less than the statutory minimum, and that for “sex offenses” the term may be up to life.
    U.S.S.G. § 5D1.2(b)(2), (c). Thus, if failure to register were a sex offense, the Guidelines range
    would be five years to life. See 18 U.S.C. § 3583(k) (setting minimum supervised release term
    for a violation of section 2250 at five years).
    In contrast, when failure to register is not construed as a sex offense, the
    recommended range under the Guidelines is determined by reference to the severity of the
    offense. Failure to register has a ten-year maximum term of imprisonment, see 18 U.S.C.
    § 2250(a), making it a Class C felony. See 18 U.S.C. § 3559(a)(3) (classifying an offense with
    a maximum imprisonment term of at least 10 years but less than 25 years as a Class C
    felony). Under section 5D1.2(a)(2), the Guidelines recommend a supervised release term
    lasting between one and three years for a Class C felony. But because this directly conflicts
    with the statutory minimum, the statutory minimum of five years becomes the Guidelines
    range under section 5D1.2(c).
    2 The Supreme Court recently granted certiorari the review this court’s standard for
    assessing the “substantial rights” requirement of plain error review. See United States v.
    Molina-Martinez, 588 Fed. App’x 333 (5th Cir. 2014), cert. granted, 
    84 U.S.L.W. 3163
    (U.S.
    Oct. 1, 2015). But that case involves this court’s more stringent standard for demonstrating
    that an error affected the defendant’s substantial rights when the defendant was sentenced
    within the overlap between the incorrect and correct Guidelines ranges. See Appellant’s
    Petition for Writ of Cert., Molina-Martinez v. United States, No. 14-8913, 
    2015 WL 5766728
     (U.S. Mar. 16, 2015), available at http://www.scotusblog.com/wp-content/uploads/
    2015/10/2015_03_16_Molina-Martinez_Saul_CRTPET.pdf. That standard is not implicated
    here because Putnam was sentenced outside the correct Guidelines range and thus receives
    the benefit of the presumption.
    3
    Case: 14-51238     Document: 00513286141     Page: 4   Date Filed: 11/25/2015
    No. 14-51238
    was within the erroneous “five years to life” range, is three times the
    recommended term under the correct Guidelines calculation.
    The Government does not provide much argument that this presumption
    is rebutted by evidence from the sentencing hearing, although it relies heavily
    on Segura throughout its briefing. In Segura, we held that the Government
    did overcome the presumption that plain error affected the defendant’s
    substantial rights even though he received a lifetime term of supervised
    release that greatly exceeded the Guidelines range of five years.            The
    additional evidence that persuaded us that the defendant would have received
    the same term under the correct Guidelines range was the district court’s
    emphasis on the defendant’s extensive, three-decade long criminal history
    involving sexual contact offenses as well as the fact that it did not refer to the
    Guidelines during 
    sentencing. 747 F.3d at 330
    –31. In contrast, Putnam has
    only one prior offense, which did not involve contact, and the district court
    referred to the low end of the Guidelines range for Putnam’s custodial sentence,
    indicating that it was generally relying on the Guidelines at the sentencing
    hearing. The record from the sentencing hearing therefore does not rebut the
    presumption of prejudice that attaches to the term of supervised release that
    was three times as long as the correct Guidelines range.
    That leaves the question whether the plain error affects the fairness,
    integrity, and reputation of the judicial proceeding. Although this final inquiry
    is far from automatic when the other requirements for correcting plain error
    are met, we have often exercised our discretion to correct error when it resulted
    in a custodial sentence in excess of the correct Guidelines recommendation.
    See, e.g., United States v. Hernandez, 
    690 F.3d 613
    , 621–22 (5th Cir. 2012)
    (exercising discretion to vacate a prison sentence 12 months above the correct
    Guidelines range); 
    Mudekunye, 646 F.3d at 290
    –91 (same for a 19-month
    disparity); United States v. John, 
    597 F.3d 263
    , 285–86 (5th Cir. 2010) (same
    4
    Case: 14-51238        Document: 00513286141           Page: 5     Date Filed: 11/25/2015
    No. 14-51238
    for 21-month disparity). Miscalculation of the Guideline range for a term of
    supervised release is less common. But we have recognized that supervised
    release terms also constitute a substantial restraint on liberty by correcting in
    the plain error posture statutory errors that substantially affected this aspect
    of sentencing. See, e.g., United States v. Segura, 61 F. App’x 119, at *1 (5th
    Cir. 2003) (“This court will correct overlong terms of supervised release on
    plain-error review.”); United States v. Cooper, 
    274 F.3d 230
    , 244 (5th Cir. 2001)
    (correcting an overlong term of supervised release outside the statutory
    maximum); United States v. Meshack, 
    225 F.3d 556
    , 578 (5th Cir. 2000) (the
    same), amended on reh’g in part on other grounds by 
    244 F.3d 367
    (5th Cir.
    2001). We thus conclude that the error in Putnam’s case that resulted in a
    supervised release term ten years above the Guidelines range satisfies all the
    plain error inquiries and exercise our discretion to correct it. 3
    Because we vacate the supervised release term as a result of the error in
    the Guidelines calculation of its length, we need not reach the question of
    whether the special condition prohibiting alcohol consumption was also in
    plain error. When imposing the new term of supervised release, the district
    court may again consider the propriety of the alcohol prohibition.
    We VACATE Putnam’s sentence and REMAND for resentencing
    consistent with this opinion.
    3 After it found that the erroneous Guideline calculation did not substantially affect
    the defendant’s substantial rights, Segura also noted that the defendant’s “23-year criminal
    history” and multiple failures to register would have led the court to not exercise its discretion
    to correct the 
    error. 747 F.3d at 331
    . As discussed above, the defendant in this case does not
    have nearly as extensive a criminal history.
    5