United States v. James Edward Dove , 343 F. App'x 428 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 24, 2009
No. 08-12642 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00097-CR-J-33-MCR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES EDWARD DOVE,
a.k.a. jedog 1979,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(August 24, 2009)
Before DUBINA, Chief Judge, TJOFLAT and BLACK, Circuit Judges.
PER CURIAM:
James Edward Dove appeals his 58-month sentence and life term of
supervised release, imposed after he pled guilty to traveling in interstate commerce
with intent to engage in illicit sexual conduct with a person under the age of 18
years, in violation of 18 U.S.C. § 2423(b), (f). Dove engaged in online
conversations with an individual he believed to be a 13-year-old girl, and he
traveled from South Carolina to Florida to engage in sexual conduct with her. The
“girl” actually was an undercover investigator, and Dove was arrested upon his
arrival at the agreed-upon location. On appeal, Dove argues the district court
abused its discretion by ordering him to register as a sex offender under the Sex
Offender Registration and Notification Act (SORNA) because his offense did not
constitute a qualifying sex offense, as no actual minor was involved. Dove next
asserts the district court abused its discretion by imposing a life term of supervised
release and several conditions of supervised release.
I.
A.
We review for an abuse of discretion the district court’s imposition of a
special condition of supervised release. United States v. Taylor, 338 F.3d 1280,
1283 (11th Cir. 2003). Plain error review applies, however, when a party fails to
object to an error before the district court and raises it for the first time on appeal.
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United States v. Raad, 406 F.3d 1322, 1323 (11th Cir. 2005). “Plain error occurs
where (1) there is an error; (2) that is plain or obvious; (3) affecting the defendant’s
substantial rights in that it was prejudicial and not harmless; and (4) that seriously
affects the fairness, integrity, or public reputation of the judicial proceedings.” Id.Once a party properly presents a federal claim before the district court, the
party can make any argument in support of that claim on appeal. Yee v. City of
Escondido, 112 S. Ct. 1522, 1532 (1992). A party is not limited to the precise
arguments made below in the district court. Id. When a party raises an objection
to the district court, however, he must state the proposition of law in “such clear
and simple language that the trial court may not misunderstand it, and if his point
is so obscurely hinted at that the trial court quite excusably may fail to grasp it,”
the claim is not properly preserved for appellate review. United States v. Zinn, 321
F.3d 1084, 1087–88 (11th Cir. 2003); see also id. at 1090 n.7 (“It is a
defendant’s—or his counsel’s—burden to articulate the specific nature of his
objection to a condition of supervised release so that the district court may
reasonably have an opportunity to consider it.”).
In this case, although Dove objected to the sex offender registration
requirement before the district court, he never contended his offense did not
constitute a qualifying offense under SORNA. At his sentencing hearing, Dove
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instead challenged the constitutionality of SORNA, arguing the statute violated the
Commerce Clause, the Due Process Clause, the nondelegation doctrine, the
Administrative Procedures Act, and the Tenth Amendment. These constitutional
arguments were inadequate to properly apprise the district court of the argument
that he now raises before this Court. See id. at 1090 n.7. Accordingly, Dove has
not preserved this argument for appeal, and we review it for plain error only. See
Raad, 406 F.3d at 1323.
B.
Dove argues his conviction does not constitute a qualifying sex offense
under SORNA because he had contact with only an adult undercover investigator,
and no actual minor was involved. Furthermore, he asserts that the plain meaning
of SORNA’s definition of “minor” cannot be read to include a person above the
age of 18 years pretending to be a person under the age of 18 years.
“SORNA was enacted in July 2006 ‘to protect the public from sex offenders
and offenders against children . . .’ by establishing ‘a comprehensive national
system for the registration of those offenders.’” United States v. Ambert, 561 F.3d
1202, 1205 (11th Cir. 2009) (quoting 42 U.S.C. § 16901). Under SORNA, a sex
offender must register in each jurisdiction where he resides, is employed, or is a
student. 42 U.S.C. § 16913(a). A “sex offender” is defined as a person who has
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been convicted of a “sex offense.” 42 U.S.C. § 16911(1). SORNA defines “sex
offense” to include an offense listed in Chapter 117 of Title 18, which includes
§ 2423(b), the statute under which Dove was convicted. 42 U.S.C.
§ 16911(5)(A)(iii). A “minor” is defined as an individual “who has not attained
the age of 18 years.” 42 U.S.C. § 16911(14).
Neither the Supreme Court nor this Court has addressed whether a
conviction under § 2423(b) involving an undercover agent, rather than an actual
minor, constitutes a sex offense requiring registration under SORNA. Given that
there is no case law on point, the district court did not plainly err in ordering Dove
to register as a sex offender. See United States v. Lejarde-Rada, 319 F.3d 1288,
1291 (11th Cir. 2003) (stating there can be no plain error when there is no
precedent from this Court or the Supreme Court directly resolving an issue).
II.
Dove next argues the life term of supervised release is unreasonable and the
district court abused its discretion by ordering as conditions of supervised release
that he (1) refrain from possessing or using a computer with Internet service,
(2) have no direct contact with minors or enter any area where minors congregate,
(3) participate in a mental health treatment program specializing in sex offender
treatment, (4) register as a sex offender, and (5) submit to searches for life.
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A.
We review the ultimate sentence imposed by a district court for
“reasonableness.” United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir. 2008)
(citing Rita v. United States, 127 S. Ct. 2456, 2465 (2007)). When reviewing for
reasonableness, courts of appeals apply the deferential abuse-of-discretion
standard. Gall v. United States, 128 S. Ct. 586, 591, 597 (2007). We first must
determine the “district court committed no significant procedural error.” Id.
at 597. If we conclude the district court made no procedural errors, we “then
consider the substantive reasonableness of the sentence imposed under an
abuse-of-discretion standard.” Id. Review for substantive reasonableness involves
inquiring whether the factors in § 3553(a) support the sentence in question.1 Id. at
600.
Reasonableness review is “deferential,” and “the party who challenges the
sentence bears the burden of establishing that the sentence is unreasonable in the
light of both [the] record and the factors in section 3553(a).” United States v.
Talley, 431 F.3d 784, 788 (11th Cir. 2005). A lengthy discussion of the § 3553(a)
factors is not required in the typical case, so long as the district court judge “set[s]
1
Dove has not argued that his life term of supervised release is procedurally
unreasonable. Therefore, only the substantive reasonableness of the life term of supervised
release is before us. United States v. Silvestri, 409 F.3d 1311, 1338 n.18 (11th Cir. 2005) (noting
issues not raised in the initial brief are waived).
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forth enough to satisfy the appellate court that [she] has considered the parties’
arguments and has a reasoned basis for exercising [her] own legal decisionmaking
authority.” Rita, 127 S. Ct. at 2468. There is a range of reasonable sentences, and
we ordinarily expect a sentence within the Guidelines range to be reasonable.
Talley, 431 F.3d at 788.
The § 3553(a) factors include (1) the nature and circumstances of the offense
and the history and characteristics of the defendant; (2) the need for the sentence
(A) to reflect the seriousness of the offense, to promote respect for the law, and to
provide just punishment for the offense, (B) to afford adequate deterrence to
criminal conduct, (C) to protect the public from further crimes by the defendant,
and (D) to provide the defendant with needed educational or vocational training or
medical care; (3) the kinds of sentences available; (4) the Sentencing Guidelines
range; (5) pertinent policy statements of the Sentencing Commission; (6) the need
to avoid unwarranted sentencing disparities; and (7) the need to provide restitution
to victims. 18 U.S.C. §§ 3553(a)(1)-(7).
Dove’s life term of supervised release was within the Guidelines range,
which we ordinarily expect to be reasonable, and it did not exceed the statutory
maximum. Furthermore, the record reflects the district court considered the nature
and circumstances of the offense, the history and characteristics of the defendant,
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the need to protect the public, and the need to provide correctional treatment.
Therefore, we conclude Dove’s life term of supervised release was reasonable, and
the district court did not abuse its discretion when it sentenced Dove to a life term
of supervised release.
B.
We review a district court’s imposition of a special condition of supervised
release for an abuse of discretion. Taylor, 338 F.3d at 1283. A district court may
impose any condition of supervised release it deems appropriate as long as it
comports with the § 3553(a) factors, involves no greater deprivation of liberty than
reasonably necessary to achieve the purposes set forth in § 3553(a), and is
consistent with any pertinent policy statements issued by the Sentencing
Commission. Id.; see also 18 U.S.C. § 3583(d); U.S.S.G. § 5D1.3(b). It is not
necessary for a special condition to be supported by each factor enumerated in
§ 3553(a). Taylor, 338 F.3d at 1283. Rather, each factor is an independent
consideration to be weighed. Id.In Dove’s case, every condition that the district court imposed as part of the
supervised release order was related to, and supported by, the § 3553(a)
factors—specifically, Dove’s history and characteristics, the need to protect the
public, and the need to provide appropriate treatment. Furthermore, this Court has
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previously held similar conditions of supervised release were not overly broad or
an abuse of discretion. See Taylor, 338 F.3d at 1286 (upholding a condition
prohibiting the defendant from entering places where children congregated); Zinn,
321 F.3d at 1093 (upholding a restriction on Internet usage). Thus, the district
court did not abuse its discretion in imposing any of the challenged conditions.
Accordingly, we affirm Dove’s conviction, sentence, and conditions of
supervised release.
AFFIRMED.
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