United States v. Verner , 229 F. App'x 789 ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
June 21, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee,
No. 06-5202
v. N.D. Okla.
DEANDRE LARON VERNER, also (D.C. No. 06-CR-044-001-TCK)
known as D ’Andre Laron Verner,
Defendant - Appellant.
OR D ER AND JUDGM ENT *
Before KELLY, M U RPH Y, and O’BRIEN, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Deandre Laron Verner pled guilty to drug and firearms charges. The
district court sentenced Verner to a total of 127 months imprisonment to be
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
followed by a five year term of supervised release. Verner challenges the district
court’s imposition of sex offender restrictions as a condition of his supervised
release without giving him prior notice of its intention to do so.
The Presentence Report (PSR ) did not recommend imposing sex offender
restrictions as a condition of Verner’s supervised release. Indeed, the district
court only mentioned sex offender restrictions when it imposed the restrictions at
the sentencing hearing. Even then, the court did not list each restriction it
imposed; instead, in the judgment, the court later referred to a number of
restrictions contained in the “Special Sex Offender Restrictions,” enumerated in
General Order Number 99-17.
The government concedes the law in effect at the time of V erner’s
sentencing required Verner receive presentence notice that the court was
contemplating imposing sex offender restrictions as a condition of supervised
release. See U nited States v. Bartsma, 198 F.3d 1191, 1199 (10th Cir. 1999).
Additionally, Bartsma did not require defendants to raise the error in the district
court in order to preserve it and establish harmless error as the proper standard of
review. Id. at 1198-99; United States v. Atencio, 476 F.3d 1099, 1105-06 n.6
(10th Cir. 2007). 1
1
In Atencio, this Court overruled Bartsma’s holding that harmless error
review would apply even where a party failed to object in the district court.
Atencio, 476 F.3d 1099, 1105-06 & n.6. Instead, we determined plain error
review was appropriate in such cases. Id. However, we announced the new rule
would apply prospectively. Id. Because Verner was sentenced prior to Atencio,
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In Bartsm a, Bartsma received no notice prior to sentencing that the district
court was intending to require him to register as a sex offender as a condition of
supervised release. 198 F.3d at 1198-99. W e remanded, holding Bartsma “was
entitled to receive reasonable presentence notice, either from the Presentence
Report, a prehearing submission from the Government, or the district court itself,
that a special condition of supervised release requiring him to register as a sex
offender was a possibility.” Id. at 1200. M oreover, we noted any condition
imposed must “involve no greater deprivation of liberty than is reasonably
necessary to deter criminal conduct, protect the public, and provide the defendant
with needed educational or vocational training, medical care, or other correctional
treatment.” Id. at 1200 (quotations omitted). “The conditions must also be
reasonably related to the nature and circumstances of the offense and the history
and characteristics of the defendant.” Id. (quotations and brackets omitted).
Like Bartsma, Verner was “entitled to receive reasonable presentence
notice” of the court’s intention to impose sex offender restrictions as a condition
of his supervised release. Id. Therefore, we reverse the imposition of the sex
offender restrictions and remand for re-sentencing with appropriate notice. 2
we will apply harmless error review even though Verner did not object in the
district court.
2
Atencio leads to the same result. There, we applied Bartsma to remand
for re-sentencing where the district court imposed a sex offender registration
requirement as a condition of supervised release without advance notice to the
defendant. Atencio, 476 F.3d at 1108. Applying harmless error, we could not say
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Verner also contends the sex offender restrictions imposed by the district
court run afoul of the Bartsma standards governing conditions of supervised
release. W e decline to address this argument in the first instance. On remand,
Verner may argue the propriety of imposing sex offender restrictions as a
condition of his supervised release.
R EVER SED and R EM A N DED.
ENTERED FOR THE COURT
Terrence L. O’Brien
Circuit Judge
the lack of notice was harmless.
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