United States v. Steven Dean ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-15038
Non-Argument Calendar
________________________
D.C. Docket No. 1:10-tp-20199-JEM-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
STEVEN DEAN,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(December 1, 2017)
Before WILSON and ROSENBAUM, Circuit Judges, and ROBRENO, * District
Judge.
PER CURIAM:
*
Honorable Eduardo C. Robreno, United States District Judge for the Eastern District of
Pennsylvania, sitting by designation.
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While on supervised release following a federal drug crime conviction,
Steven Dean was convicted of felony child abuse in Florida. After he was released
from state prison, the district court revoked Dean’s federal supervised release and
sentenced him to 24 months in prison followed by 36 months of supervised release.
The court also imposed three special conditions, which require Dean to (1) have no
unsupervised contact with children, minors, or the victim; (2) participate in a sex
offender treatment program; and (3) submit to unannounced, warrantless searches
of his person, property, and computers based on reasonable suspicion of unlawful
conduct or a violation of a condition of his supervised release. Dean appeals the
imposition of all three special conditions. For the reasons that follow, we affirm.
I.
A. Federal Drug Conviction
In 1989, Dean was convicted in the United States District Court for the
Northern District of Florida for conspiracy to possess cocaine base with the intent
to distribute, a class A felony under 21 U.S.C §§ 841 and 846. Dean was
sentenced to 365 months of imprisonment followed by five years of supervised
release, which included the standard condition that he would “not commit another
Federal, state or local crime.” After Dean was released from federal prison,
jurisdiction over his supervised release was transferred to the United States District
Court for the Southern District of Florida on October 19, 2010.
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B. Florida Child Abuse Conviction
On June 5, 2012, Dean was arrested in Miami Gardens, Florida, and charged
with committing lewd and lascivious molestation on a child under 12 years old, in
violation of Fla. Stat. § 800.004(5)(B), and lewd and lascivious conduct, in
violation of Fla. Stat. § 800.04(6)(B). The police affidavit accompanying Dean’s
arrest described the allegations: the ten-year-old victim was helping her aunt move
out of Dean’s home, when Dean grabbed her, forced her to kiss him, stuck his
tongue in her mouth, grabbed her buttocks over her clothing, and forced her to kiss
him again. On September 4, 2014, Dean pled guilty to aggravated child abuse in
violation of Fla. Stat. § 827.03(2)(A).1
C. Probation Revocation
After Dean’s arrest on the state charge, the district court issued a warrant for
Dean’s arrest for violating the terms of his federal supervised release, by violating
the law as charged in his state case. Following Dean’s conviction on the state
charge, the Probation Office filed a superseding petition to revoke Dean’s
supervised release, based on Dean’s actual conviction for his violation of state law.
The probation officer submitted a Report and Recommendation (“R&R”)
recounting the facts as alleged in the police report supporting the state charges. He
1
The state dropped the original charges of lewd and lascivious molestation and conduct.
The probation officer’s Report and Recommendation reported that the state explained its
decision to drop the charges as based on preventing the child from having to testify in court.
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recommended that Dean’s supervised release be revoked, but he did not request
any special conditions. Dean filed objections to the R&R but did not challenge the
facts as set forth in the R&R, instead arguing only about which version of the
federal Sentencing Guidelines applied.2
At the revocation hearing, Dean admitted that on June 5, 2012, he committed
“child abuse, aggravated, great bodily harm or torture,” in violation of Fla. Stat.
§ 827.03(2)(a) and that he pled guilty to that charge. Accordingly, the district
court, having “considered the statements of all the parties and the information
contained in the violation report,” found that Dean “violated the terms and
conditions of supervised release.” The district court sentenced Dean to 24 months
in prison followed by 36 months of supervised release.
The district court also imposed three special conditions. Condition One
mandates that Dean “shall have no unsupervised personal mail, telephone or
computer contact with children or minors or with -- and especially the victim.”
Condition Two states that Dean “shall participate in a sex offender treatment
program to include psychological testing and polygraph examination,” including
inpatient or outpatient treatment. Condition Three requires Dean to submit to
unannounced, warrantless searches based on reasonable suspicion:
The defendant shall submit to the US Probation Office conducting
periodic unannounced searches of the defendant’s person, property,
2
Dean does not advance this argument on appeal.
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house, residence, vehicles, papers, computers, other electronic
communication or data storage device or media, including retrieval
and copying of all data from the computers and any internal or
external peripherals and effects at any time, with or without
warrant, by any law enforcement or probation office, with
reasonable suspicion concerning unlawful conduct or a violation
of condition of probation or supervised release. The search may
include the retrieval and copying of all data from the computer and
any internal or external peripherals to ensure compliance with other
supervision conditions and/or removal of such equipment for the
purpose of conducting a more thorough inspection, and to have
installed on the defendant’s computers, at the defendant’s expense,
any hardware or software systems to monitor the defendant’s
computer use.
(emphasis added).
After imposition of sentence, Dean generally objected to the second and
third special conditions. The entirety of his objection, as relevant to this appeal,
consisted of the following: “Your Honor, to preserve his right to appeal, should he
choose to do so, I . . . would . . . object to the court’s imposition of sex offender
treatment program and the computer search condition.” Dean now appeals the
imposition of all three special conditions.
II.
On appeal, Dean argues that the district court (1) denied him due process of
law when it imposed three special conditions without notice and in reliance on
hearsay and (2) abused its discretion when it imposed these conditions even though
Dean’s aggravated-child-abuse conviction does not make him a sex offender under
Florida law. Because the parties dispute the applicable standard of review, we
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begin there. We then review the due-process claims and analyze each special
condition.
A. Standard of Review
Generally, we review the imposition of special conditions of supervised
release for an abuse of discretion. United States v. Taylor, 338 F.3d 1280, 1283
(11th Cir. 2003) (“Taylor I”). But because Dean did not object to Condition One
and failed to provide the basis for his objections to Conditions Two and Three, we
review for plain error. See United States v. Nash, 438 F.3d 1302, 1304 (11th Cir.
2006) (noting that objections not raised in the district court are reviewed for plain
error); United States v. Straub, 508 F.3d 1003, 1011 (11th Cir. 2007), cert. denied,
555 U.S. 812 (2008) (“To preserve an issue for appeal, one must raise an objection
that is sufficient to apprise the trial court and the opposing party of the particular
grounds upon which appellate relief will later be sought.” (internal quotation marks
omitted)).
“To prevail under a plain error standard, [Dean] must prove that (1) there is
an error; (2) that is plain; and (3) that affects substantial rights.” See United States
v. Parrish, 427 F.3d 1345, 1348 (11th Cir. 2005). If a defendant establishes all
three requirements, we may choose to exercise our discretion to correct a forfeited
error, but only if “the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” United States v. Monroe, 353 F.3d 1346, 1349
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(11th Cir. 2003) (citation and internal quotation marks omitted and alteration
adopted).
B. Due Process and Hearsay
Dean argues that the district court imposed special conditions without
providing him with adequate notice and an opportunity to be heard and by basing
the conditions on unreliable, layered hearsay. We find no plain error.
1. Notice
Dean was not entitled to notice. We have held that a defendant generally is
not entitled to notice before a district court may impose special conditions of
supervised release to address a defendant’s proclivity to sexual misconduct when
the crime of conviction did not involve sexual activity. United States v. Moran,
573 F.3d 1132, 1135 (11th Cir. 2009).
As we explained in Moran, where a presentence report contains allegations
of sexual misconduct, a “defendant ordinarily should not be surprised when a
sentencing court imposes conditions of supervised release.” Id. at 1138. And here,
as in Moran, Dean does not appear to have been unfairly surprised: he did not
allege that he was prejudiced by the court’s decision, he did not move for a
continuance to develop additional arguments, and the record shows he knew the
district court would consider his criminal history and the allegations in the R&R.
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In fact, Dean filed an objection to the R&R but failed to object to any of the facts
contained therein.
2. Opportunity to be heard
Dean was not denied a meaningful opportunity to be heard after his
counsel’s objections to Conditions Two and Three. In support of this contention,
Dean asserts that the court should have inquired as to the basis of his objections.
But the court was under no such obligation. See United States v. Carpenter, 803
F.3d 1224, 1237–38 (11th Cir. 2015).
Nor was the court required to say any more at the hearing or in its order to
justify the imposition of the special conditions, as Dean contends. “When
pronouncing a defendant’s sentence, the court need only ‘set forth enough to
satisfy the appellate court that he has considered the parties’ arguments and has a
reasoned basis for exercising his own legal decisionmaking authority.’”
Carpenter, 803 F.3d at 1232 (quoting Rita v. United States, 551 U.S. 338, 356
(2007)). In particular, a “sentencing court is not required to incant the specific
language used in the guidelines or articulate its consideration of each individual §
3553(a) factor, so long as the record reflects the court’s consideration of many of
those factors.” Id. (internal quotation marks omitted) (quoting United States v.
Ghertler, 605 F.3d 1256, 1262 (11th Cir. 2010)); United States v. Ridgeway, 319
F.3d 1313, 1317 (11th Cir. 2003) (when the condition being imposed is clear and
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undisputed facts in the PSI support the condition, then no error where court did not
make a specific findings on each sentencing factor).
Here, the district court listed everything it considered in determining the
sentence: the R&R, the Superseding Petition for offender under supervision, the
order reducing the defendant’s sentence, the original presentence investigation
report for the 1988 conspiracy charge, and the defendant’s objections to the R&R.
It also stated before ruling that it had carefully considered the statements of all the
parties and the information contain in the violation report. This is enough to allow
this Court to understand the basis for the special conditions.
3. Hearsay
Dean also argues that the court relied upon unsubstantiated, layered hearsay
in the R&R in violation of his right to confront witnesses. Again, we find no plain
error.
First, as we have noted, Dean failed to object at all to the facts in the R&R,
much less to object based on hearsay. So the district court had the authority to
consider all of the unobjected-to-facts in the R&R. See, e.g., United States v.
Cobb, 842 F.3d 1213, 1215 n.1 (11th Cir. 2016).
Plus, the Federal Rules of Evidence do not apply in supervised-release
revocation hearings. United States v. Frazier, 26 F.3d 110, 114 (11th Cir. 1994).
Rather, the admission of hearsay evidence, while not automatic, is limited by
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minimal due-process rights. Id. “Admission of hearsay evidence in probation
hearings does not violate due process, as long as it bears some indicia of
reliability.” United States v. Taylor, 931 F.2d 842, 847 (11th Cir. 1991) (“Taylor
II”).
And even assuming that the court’s consideration of the hearsay violated due
process, Dean bears the burden to show (1) that the challenged evidence is
materially false or unreliable and (2) that it actually served as the basis for the
court’s sentence. Taylor II, 931 F.2d at 847. Dean has failed to meet this burden.
He never lodged a hearsay objection or otherwise objected to the facts in the R&R,
and it is too late to claim for the first time on appeal that the evidence was
materially false or unreliable. We thus conclude that the district court did not
plainly err by considering the unobjected-to-facts underlying Dean’s conviction
when imposing the special conditions.
C. Standard for Imposing Special Conditions
In 18 U.S.C. § 3583(d), Congress granted the district court broad authority
to impose additional conditions of supervised release to the extent such conditions
fall within three limitations:
The court may order, as a further condition of supervised release, to
the extent that such condition—
(1) is reasonably related to the factors set forth in section
3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D);
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(2) involves no greater deprivation of liberty than is reasonably
necessary for the purposes set forth in section 3553(a)(2)(B),
(a)(2)(C), and (a)(2)(D); and
(3) is consistent with any pertinent policy statements issued by
the Sentencing Commission pursuant to 28 U.S.C. 994(a);
any condition set forth as a discretionary condition of probation in
section 3563(b) and any other condition it considers to be
appropriate . . . .
18 U.S.C. § 3583(d) (emphasis added); see also U.S.S.G. § 5D1.3(b) (setting forth
similar requirements for imposing a discretionary condition of supervised release);
United States v. Okoko, 365 F.3d 962, 965 n.5 (11th Cir. 2004) (explaining that
because § 5D1.3(b) mirrors the language of § 3583(d) we consider them together).
The particular 18 U.S.C. § 3553(a) factors that § 3583(d)(1) references are
(1) the nature and circumstances of the offense and the history and characteristics
of the defendant and (2) the need for the sentence imposed to reflect the
seriousness of the offense, afford adequate deterrence, protect the public from
further crimes of the defendant, and provide the defendant with needed training,
medical care, or other correctional treatment. 18 U.S.C. § 3553(a)(1), (a)(2)(B-D).
A special condition of supervised release need not be related to all of the § 3553(a)
factors; rather, each is an independent consideration to be weighed. United States
v. Zinn, 321 F.3d 1084, 1089 (11th Cir. 2003) (citing United States v. Bull, 214
F.3d 1275, 1278 (11th Cir. 2000)).
D. Special Conditions
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All three special conditions meet the three factors in 18 U.S.C. § 3538(d).
We discuss each in turn.
1. Condition One: Restrictions on contact with minors
Condition One prohibits Dean from having “unsupervised, personal, mail,
telephone, or computer contact with children/minors, or with the victim.” This
condition is reasonably related to Dean’s history as a convicted child abuser as
well as to the need to protect the victim—and other children—from potential future
harm. This condition also does not unreasonably deprive Dean of his liberty, as
“the district court was entitled to find that a restriction on [Dean’s] affiliation with
children was justified based on previous incidents involving minor victims.”
Moran, 573 F.3d at 1140.
Furthermore, the restriction is narrowly tailored and not unduly restrictive
because the restriction prohibits only unsupervised contact, so Dean may seek
permission from his probation officer to have supervised contact with minors. See
Zinn, 321 F.3d at 1092-93 (affirming restriction on sex offender’s use of the
internet where it was narrowly tailored and permitted the defendant to access the
internet with his probation officer’s permission); Moran, 573 F.3d at 1140 (“the
right of association ‘may properly be restricted where the doing so is necessary to
protect the public.’”). Accordingly, the district court did not plainly err in
imposing this condition.
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2. Condition Two: Sex-offender therapy
The Second Condition requires Dean to participate in sex-offender therapy,
which includes psychological testing and polygraph examination. The guideline
pertaining to mental-health programs states,
(d) “Special” Conditions (Policy Statement) The following “special”
conditions of supervised release are recommended in the
circumstances described and, in addition, may otherwise be
appropriate in particular cases:
...
(5) Mental Health Program Participation
If the court has reason to believe that the defendant is in need of
psychological or psychiatric treatment—a condition requiring
that the defendant participate in a mental health program
approved by the United States Probation Office.
§ 5D1.3(d)(5).
We have previously held that mental-health treatment, including sexual-
offender therapy, may be imposed even where the conviction did not involve the
defendant’s mental health or was not a sexual offense. See, e.g., Moran, 573 F.3d
at 1139-40 (approving condition for sexual offender therapy where the defendant,
who pled guilty to being a felon in possession of a firearm, had a documented
history of sex-related offenses); Bull, 214 F.3d at 1278 (requiring mental-health
treatment for anger and violence based on defendant’s history of domestic violence
where defendant was convicted of use of an unauthorized credit card).
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Furthermore, we cannot say that it was plain error to impose polygraph
testing as a part of the mental-health treatment. See Zinn, 321 F.3d at 1090
(concluding that “polygraph testing to ensure compliance with probationary terms
is both reasonably related to Appellant’s offense [of possession of child
pornography] and personal history, and when reasonably applied will not unduly
burden his rights”); Taylor I, 338 F.3d at 1283 n.2 (noting that polygraph
examinations “help insure compliance with the conditions of supervised release
because probationers fear that any false denials of violations will be detected”). If
it was not plain error to require sex-offender therapy, we cannot say it was plain
error to require polygraph testing to support that therapy.
3. Condition Three: Warrantless searches upon reasonable suspicion
The third special condition requires Dean to submit to searches of his
property, including electronic data, with or without a warrant by any law-
enforcement officer or probation officer with reasonable suspicion that Dean is
engaging in unlawful conduct or violating the terms of his supervised release.
It is undisputed that Dean’s conviction for aggravated child abuse does not
require him to register as a sex offender under the Sex Offender Registration and
Notification Act (SORNA). See 34 U.S.C § 20913; Fla. Stat.
§ 943.0435(1)(h)(1)(a) (listing the statutes of conviction triggering sex offender
status). Dean argues that the third condition is improper because § 3583(d), which
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expressly permits warrantless searches on “felons required to register as sex
offenders,”3 cannot be applied to felons who are not sex offenders. We disagree.
The text of § 3583(d) specifically permits a district court to impose “any other
condition it considers to be appropriate,” which includes a warrantless search.
Indeed, the Circuits have imposed warrantless search conditions for crimes
unrelated to sex offenses. See, e.g., United States v. Betts, 511 F.3d 872, 876 (9th
Cir. 2007) (approving warrantless search condition in a bribery conspiracy case
even with no reasonable suspicion requirement); United States v. Kingsley, 241
F.3d 828, 837 (6th Cir. 2001) (finding a blanket search condition was necessary,
justifiable, and advanced the legitimate goals of supervised release, given the
defendant’s extensive criminal record); United States v. Germosen, 139 F.3d 120,
132 (2d Cir. 1998) (holding that a condition of supervised release subjecting the
3
The statute provides, in relevant part, that the court may order, to the extent the
condition is reasonably related to the factors in § 3553(a), involves no greater deprivation of
liberty than necessary, and is consistent with policy,
any condition set forth as a discretionary condition of probation in section 3563(b)
and any other condition it considers to be appropriate . . . . The court may
order, as an explicit condition of supervised release for a person who is a felon
and required to register under the Sex Offender Registration and
Notification Act, that the person submit his person, and any property, house,
residence, vehicle, papers, computer, other electronic communications or data
storage devices or media, and effects to search at any time, with or without a
warrant, by any law enforcement or probation officer with reasonable suspicion
concerning a violation of a condition of supervised release or unlawful conduct by
the person, and by any probation officer in the lawful discharge of the officer's
supervision functions.
18 U.S.C. § 3583(d) (emphasis added).
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defendant in a wire-fraud case to searches necessary to secure financial
information was reasonably necessary to ensure compliance with the restitution
order).
The Sentencing Commission has also recognized that warrantless searches
may be appropriate in cases not involving sexual offenders. “In fact, while the
Sentencing Commission recommends that persons convicted of sex offenses
against minors always be subject to a special condition permitting warrantless
searches, the Commission has also said that the same condition ‘may otherwise be
appropriate in particular cases.’” United States v. Neal, 810 F.3d 512, 520-21 (7th
Cir. 2016) (emphasis and citation omitted) (citing U.S.S.G. § 5D1.3(d)). “The
[United States Sentencing Guidelines] policy statement therefore indicates
warrantless-search conditions may be appropriate in cases other than those
involving sex offenders,” and such a condition could thus “satisfy § 3583(d)(3)
because it would be consistent with the relevant policy statement.” United States
v. Flaugher, 805 F.3d 1249, 1252 (10th Cir. 2015), cert denied, 137 S. Ct. 35
(2016).
Thus, the district court had the statutory authority to impose this condition.
We must now determine whether the condition is reasonably related here to a §
3553(a) factor and if it involves no greater deprivation than necessary. Under
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plain-error review, we cannot say that the imposition of this condition was
improper.
The condition is reasonably related to the goals of deterring further criminal
activity and protecting the public because the searches will ensure that Dean is
complying with the terms of his supervised release. See Neal, 810 F.3d at 521
(search condition reasonably related to goal of discouraging further drug use
because a search would ensure defendant did not possess drugs). Moreover, while
the condition allows Dean to use the internet for legitimate purposes, a search of
Dean’s computer and electronic data will safeguard against his contacting the
victim, whom he knew, or other minors. See Taylor I, 338 F.3d at 1284-85 (sex
offender “used the internet as his tool to harass his former client and to endanger
her daughter by capitalizing on the internet’s effectiveness as a means of reaching
pedophiles.”); Owens v. Kelley, 681 F.2d 1362, 1368 (11th Cir. 1982) (searches
help “to deter the commission of crime and to provide supervisors with
information on the progress of their rehabilitative efforts.”).
Finally, a search may be conducted only upon a “reasonable suspicion” that
Dean is engaging in illegal conduct or violating the terms of his supervised release.
We have previously upheld warrantless searches that were not premised on
reasonable suspicion. See Owens, 681 F.2d at 1366-69 (finding a Georgia
probation condition allowing warrantless searches without reasonable cause for a
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person convicted of a violation of the Georgia Controlled Substances Act did not
violate the Fourth Amendment); see also Samson v. California, 547 U.S. 843, 846
(2006) (holding that a suspicion-less search based on a California condition for
release on state parole does not violate the Constitution). Thus, we cannot say that
the court plainly erred in imposing this condition.
III.
For the foregoing reasons, we affirm Dean’s sentence.
AFFIRMED.
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