United States v. Crain , 321 F. App'x 329 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4071
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHRISTOPHER CHASE CRAIN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:07-cr-00211-RBH-1)
Argued: January 30, 2009 Decided: March 31, 2009
Before SHEDD and AGEE, Circuit Judges, and Arthur L. ALARCÓN,
Senior Circuit Judge of the United States Court of Appeals for
the Ninth Circuit, sitting by designation.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
ARGUED: Michael A. Meetze, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Florence, South Carolina, for Appellant. Carrie Ann
Fisher, OFFICE OF THE UNITED STATES ATTORNEY, Florence, South
Carolina, for Appellee. ON BRIEF: Kevin F. McDonald, Acting
United States Attorney, Columbia, South Carolina; William E.
Day, II, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Christopher Crain appeals from the district court’s
judgment and sentence imposing a term of 27 months confinement,
followed by three years of supervised release with certain
special conditions, including the requirement that Crain
register with the state sex offender registration agency in the
state where he resides, as directed by his probation officer.
We conclude that the district court did not abuse its discretion
in ordering the special condition of release because the
condition was reasonably related to the statutory factors set
forth in 18 U.S.C. § 3583(d). We therefore affirm the judgment
of the district court.
I
A
Crain is a resident of Tennessee. He was originally
charged with violating the Mann Act, 18 U.S.C. § 2423(a), for
transporting a minor across state lines with the intent to
commit the felony of statutory rape under Tennessee law. The
charges arose out of an online discourse Crain began with a
fourteen-year-old girl from Florence, South Carolina. The
discourse started in the fall of 2006, when Crain was nineteen
years old, and lasted several months. During that time, Crain
and the victim sent nude photographs of themselves to one
another. On January 18, 2007, Crain drove from Tennessee to
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Florence, South Carolina to meet the victim. They returned to
Tennessee together. During the car trip, and after they arrived
at Crain’s house, Crain engaged in sexual conduct with the
fourteen-year-old victim. At the time the sexual conduct
occurred, Crain was twenty years old.
On the night of January 19, 2007, after the victim’s
parents reported her missing and learned she was with Crain,
local Sheriff’s deputies went to Crain’s residence and found the
victim. Crain told investigators that the victim represented
herself as being seventeen years old and that he did not learn
her true age until the police picked her up at his house.
Conversely, the victim’s father told investigators that prior to
his daughter’s disappearance, he had contacted Crain, informed
him that his daughter was fourteen years old, and asked Crain to
stop communicating with her.
On October, 4, 2007, Crain pleaded guilty to one count of
violating 18 U.S.C. § 1470. 1 In return, the Government withdrew
the first indictment charging Crain with violating the Mann Act,
1
18 U.S.C. § 1470 provides that “[w]hoever, using the mail
or any facility or means of interstate or foreign commerce,
knowingly transfers obscene matter to another individual who has
not attained the age of 16 years, knowing that such other
individual has not attained the age of 16 years, or attempts to
do so, shall be fined under this title, imprisoned not more than
10 years, or both.”
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a crime that carries with it a statutory minimum five-year
sentence. Crain was sentenced to 27 months imprisonment, and
three years of supervised release with special conditions. As a
condition of his supervised release, Crain was ordered to
“register with the state sex offender registration agency in the
state where [he] resides, works, or is a student, as directed by
the probation officer.” At the sentencing hearing, Crain
informed the court that he “want[ed] to preserve an objection to
any requirement that subjects [him] to the sex offender
registry, any of those conditions that [the court] included in
there to the extent that he has the right to argue about those
things.” The district court overruled the objection. The
record does not reflect any discussion of or reference to SORNA
during the sentencing hearing. Crain filed a timely notice of
appeal.
B
1
Before this Court, Crain argues that requiring him to
register as a sex offender in his state of residence as a
condition of his release is “substantively unreasonable” since
“his offense of conviction [transferring obscene material to a
minor] has no element of sexual contact.” Crain also argues
that the condition is “unenforceable by the federal courts.” We
review special conditions of supervised release for abuse of
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discretion. United States v. Dotson, 324 F.3d 256, 259 (4th
Cir. 2003)(citing United States v. Crandon, 173 F.3d 122, 127
(3d Cir. 1999)).
In addition to the mandatory conditions of supervised
release set forth in 18 U.S.C. § 3583(d), a sentencing court may
impose any other condition of release it considers to be
appropriate, so long as that condition is “reasonably related”
to (1) “the nature and circumstances of the offense and the
history and characteristics of the defendant,” 18 U.S.C.
§ 3553(a)(1); (2) “the need for the sentence imposed to afford
adequate deterrence to criminal conduct,” 18 U.S.C.
§ 3553(a)(2)(B); (3) “the need for the sentence imposed to
protect the public from further crimes of the defendant,” 18
U.S.C. § 3553(a)(2)(C); and, (4) “the need for the sentence
imposed to provide the defendant with needed [training], medical
care, or other correctional treatment in the most effective
manner.” 18 U.S.C. § 3553(a)(2)(D). See 18 U.S.C. § 3583(d)
(setting forth statutory factors to which sentence must be
reasonably related).
Section 3583(d) further provides that a condition can
“involve[] no greater deprivation of liberty than is reasonably
necessary” to achieve the purposes of supervised release, and it
must be “consistent with any pertinent policy statements issued
by the Sentencing Commission[.]” Id.; see also, Dotson, 324
5
F.3d at 260-61. A special condition of supervised release may
restrict fundamental rights when the special condition “is
narrowly tailored and is directly related to deterring [the
defendant] and protecting the public.” Crandon, 173 F.3d at
128. Within these confines, “[a] sentencing judge is given wide
discretion in imposing [conditions of] supervised release.” Id.
at 127.
Crandon is instructive here. In Crandon, a thirty-nine-
year-old New Jersey resident used the Internet to contact and
begin a discourse with a fourteen-year-old female victim who
lived in Minnesota. Id. Crandon drove to Minnesota, collected
the victim, and attempted to drive her back to New Jersey. Id.While en route to New Jersey with the minor female victim,
Crandon was arrested. Id. Crandon pleaded guilty to receiving
child pornography through the mail, based upon his having taken,
on a prior visit to Minnesota, sexually explicit film photos of
the minor female victim which he sent by U.S. mail to be
developed. Id. On appeal, Crandon challenged the special
condition of his supervised release restricting his ability to
access the Internet. He argues that it “bears no logical
relation to his offense.” Id. The Third Circuit affirmed,
concluding that the condition restricting Crandon’s Internet
access was “reasonably related to Crandon’s criminal activities,
to the goal of deterring him from engaging in further criminal
6
conduct, and to protecting the public.” Id. The court reasoned
as follows:
In this case, Crandon used the Internet as a means to
develop an illegal sexual relationship with a young
girl over a period of several months. Given these
compelling circumstances, it seems clear that the
condition of release limiting Crandon's Internet
access is related to the dual aims of deterring him
from recidivism and protecting the public.
Id. at 127-28. See also United States v. Fabiano, 169 F.3d
1299, 1307 (10th Cir. 1999)(holding that the district court
acted within its discretion in ordering defendant to comply with
Colorado state sex offender registration requirements as a
condition of supervised release, whether or not defendant’s
conduct was "unlawful sexual behavior” under the state’s
statutory definition).
This circuit has upheld discretionary special conditions of
supervised release in similar contexts. See, e.g., Dotson, 324
F.3d at 260-61. In Dotson, this court held that a special
condition providing for use of devices such as a polygraph or
penile plethysmograph was reasonable where the record showed
that defendant pleaded guilty to attempting to receive in
commerce a child pornography videotape, and the criminal
activities involved the ordering of two “custom” pornographic
videotapes of girls between 9 and 12 years old, for which he
provided graphic details of his preferences. Id. at 260; see
also, United States v. Wesley, 81 F.3d 482 (4th Cir.
7
1996)(upholding abstention from alcohol as a condition of
supervised release where defendant pleaded guilty to
embezzlement from the Veterans’ Administration and had been
previously convicted of being intoxicated and disruptive).
While Crain’s crime of conviction may not be defined
categorically as a “sex offense” in every instance, Crain
acknowledged at his sentencing hearing that he understood he
could “be held accountable for criminal conduct in which [he
was] directly involved . . . [including] conduct alleged in the
counts of [his] indictment which [were] dismissed.” Crain’s
criminal activities included his contacting and beginning a
sexual discourse with the fourteen-year-old victim, driving to
her home state to meet her, and then driving her back to his
home state of Tennessee where he engaged in sexual conduct with
her. The district court appropriately considered these criminal
actions in determining that Crain should register as a sex
offender as a condition of his supervised release, as directed
by his probation officer. This condition is reasonably related
to “the nature and circumstances of [Crain’s] offense.” 18
U.S.C. § 3553(a)(1).
Requiring that Crain register with his state sex offender
registry, as directed by his probation officer, provides the
public with a description of Crain, his residential information,
and alerts the public and local law enforcement, of Crain’s
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status as a sex offender. See 18 U.S.C. § 3553(a)(2)(C).
Registration may also deter Crain from engaging in future
criminal activity, as he will be more closely monitored by local
state law enforcement. 18 U.S.C. § 3553(a)(2)(B).
2
Crain also contends that the district court erred in
ordering him to “register with the state sex offender
registration agency in the state where [he] resides [ . . . ],
as directed by the probation officer,” because “his state,
Tennessee, does not require registration for his underlying
offense, and the federal sex offender registry [SORNA] likewise
does not apply to him.” 2 Crain also contends that SORNA is
unconstitutional insofar as it compels states to administer
federal law. Id.Our review of the record reveals no discussion before the
district court of the applicability of SORNA to Crain’s
sentence. “An appellant who fails to object in the district
2
In his opening brief, Crain argued that the district court
lacked authority to order him to register as a sex offender in
his state of residence (Tennessee) because, under Tennessee’s
Sexual Offender Registration and Monitoring Act, Crain would not
be required to register since his crime of conviction was not
defined as a “sex offense” under the Tennessee Act. See T.C.A.
§ 40-39-202(17)(A)(xvi)(2007). We do not decide the merits of
this argument because we find that the district court had
authority under 18 U.S.C. § 3583 to impose the condition.
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court forfeits the right to protest the error on appeal and we
review the claim for plain error.” United States v. Martin, 520
F.3d 656, 658 (6th Cir. 2008) (citing Fed. R. Crim. P. 52(b)).
Under this standard of review, we may correct an error not
raised in district court if (1) there is an error; (2) the error
is plain; (3) the error affects substantial rights; and (4) we
determine, after examining the particulars of the case, that the
error seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Owens-Illinois, Inc. v.
Rapid Am. Corp. (In re Celotex Corp.), 124 F.3d 619, 630-631
(4th Cir. 1997) (citing United States v. Olano, 507 U.S. 725,
730 (1993)). We find no such error here.
Under 18 U.S.C. § 3583(d), it is mandatory that a district
court “order, as an explicit condition of supervised release for
a person required to register under the Sex Offender
Registration and Notification Act [SORNA], that the person
comply with the requirements of that Act.” 18 U.S.C. § 3583(d).
Here, the district court did not determine that Crain’s offense
of conviction was a “sex offense” as defined by SORNA, nor did
the district court order, as an explicit condition of supervised
release, that Crain comply with the requirements of SORNA.
Rather, the district court imposed, as a discretionary condition
of supervised release, the requirement that Crain register as a
sex offender in his state of residence “as directed by the
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probation officer.” 3 There is no indication in the record that
the district court directed Crain to register pursuant to the
provisions of SORNA. Thus, we find no error.
Similarly, the issues raised by Crain concerning the
alleged constitutional infirmities of SORNA are not properly
before us because they were not raised in the district court.
See Karpel v. Inova Health Sys. Servs., 134 F.3d 1222, 1227 (4th
Cir. 1998) (issues raised for the first time on appeal generally
will not be considered, unless refusal to do so would be plain
error or would result in a fundamental miscarriage of justice).
CONCLUSION
For the reasons set forth above, we affirm the district
court’s judgment and sentence because we conclude that the
district court acted within its discretion in requiring Crain to
register as a sex offender with his state registry as a special
condition of his release, as directed by his probation officer.
AFFIRMED IN PART AND DISMISSED IN PART
3
The district court imposed six other special conditions,
including: participating in a mental health counseling program,
undergoing an evaluation for sex offender treatment, prohibiting
the use of the Internet, submitting to random polygraphs, and
participating in a substance abuse program. Crain did not
challenge any of these other requirements in this appeal.
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