United States v. Randy Kelly , 449 F. App'x 293 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4245
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
RANDY KELLY,
Defendant – Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Thomas E. Johnston,
District Judge. (2:06-cr-00119-1)
Submitted: September 7, 2011 Decided: October 11, 2011
Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, David R. Bungard, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant. R. Booth
Goodwin, II, United States Attorney, Monica K. Schwartz,
Assistant United States Attorney, Charleston, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Randy Kelly appeals the district court’s order
modifying the conditions of his supervised release. On appeal,
he raises the issue of whether the district court abused its
discretion by imposing more restrictive conditions of supervised
release without sufficient proof from the Government that they
met the requirements of 18 U.S.C. § 3583(d) (2006). We affirm.
District courts have broad latitude to impose
conditions on supervised release, and we review such conditions
only for abuse of discretion. United States v. Armel, 585 F.3d
182, 186 (4th Cir. 2009). In addition to a number of mandatory
conditions, the district court “may impose any other condition
it considers to be appropriate,” as long as it is reasonably
related to the factors referred to in 18 U.S.C. § 3583(d)(1)
(2006). United States v. Dotson, 324 F.3d 256, 260 (4th Cir.
2003). These factors include the nature and circumstances of
the offense, the history and characteristics of the defendant,
and protecting the public from further crimes. 18 U.S.C.
§§ 3553(a)(1), (a)(2)(C), 3583(d)(1) (2006). Moreover, special
conditions must involve no greater deprivation of liberty than
is reasonably necessary for achieving the goals enumerated in
§ 3553(a). 18 U.S.C. § 3583(d)(2); Armel, 585 F.3d at 186.
Kelly was convicted by a jury of knowingly traveling
in interstate commerce for the purpose of engaging in illicit
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sexual conduct, in violation of 18 U.S.C. § 2423(b) (2006), and
he was sentenced on November 2, 2006 to sixty-three months in
prison and ten years of supervised release. Kelly traveled in
interstate commerce for the purpose of having sex with a twelve-
year-old girl, and he had a prior conviction for attempted first
degree rape involving a twelve-year-old girl. He was required
to register as a sex offender, and he reported that he did so.
He began his term of supervised release on November 19, 2010.
On January 25, 2011, the probation officer petitioned
the district court to modify the conditions of Kelly’s
supervised release to add the special conditions “outlined in
the Standing Order for Adoption of Standard and Optional
Conditions of Probation and Supervised Release in All Sex
Offense Cases, entered on March 19, 2008.” The district court’s
local rule provides that these special conditions should be
included in the judgment “as appropriate in all cases where the
offense of conviction, or a defendant’s prior state or federal
conviction, would qualify as a ‘sex offense’ as defined in the
Sex Offender Registration and Notification Act (SORNA), 42
U.S.C. § 16911(5) or otherwise result in a reporting obligation
by the defendant to any state or federal sex offender registry.”
S.D.W. Va. R. Crim. P. 32.4. The probation officer recommended
that all twenty-one special conditions be imposed on Kelly based
on his conduct in the instant offense as well as his prior
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conviction for attempted first degree rape, contending that the
special conditions would allow the probation officer to more
effectively supervise Kelly in the community.
At his modification of supervised release hearing,
Kelly argued that the district court was aware of all the facts
of the case when he was sentenced; he had done everything the
probation officer asked him to do during his supervised release;
and the probation officer had not identified any “concerns set
forth in this petition as to anything he’s doing now that would
warrant additional restrictions upon his life.” He also noted
that two of the optional conditions “may cause him problems.”
Specifically, he would not be permitted to “loiter within one
hundred feet” of any school property, but he had to walk by a
high school to get to his job; and he would not be permitted to
possess a cell phone capable of creating images or video, but
the cell phone he currently possesses has “a camera on it.”
The district court “considered the Section 3553(a)
factors” and imposed all twenty-one conditions requested by the
probation officer. The court explained that Kelly had a prior
sex offense conviction involving a twelve-year-old girl, and “in
this case, he was attempting to have sex with a 12-year-old
girl.” The court concluded that Kelly was “precisely the type
of defendant that these conditions were designed for.”
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On appeal, Kelly argues that the district court abused
its discretion because it had no basis beyond its local rule
upon which to modify his supervised release, and the Government
failed to meet its burden of proof to justify the conditions
because it “presented no evidence at the modification hearing
demonstrating why the new conditions were appropriate.”
Based on our review of the record, we conclude that
the district court did not abuse its discretion in modifying
Kelly’s supervised release conditions. A district court may
modify the conditions imposed on a term of supervised release at
any time before the term has expired, even when the modification
is based only on evidence that was available at the original
sentencing and not on changed circumstances. See United States
v. Begay, 631 F.3d 1168, 1172 (10th Cir.), cert. denied, 131 S.
Ct. 3010 (2011); United States v. Davies, 380 F.3d 329, 332 (8th
Cir. 2004); United States v. Allen, 2 F.3d 538, 539 (4th Cir.
1993). In this case, the district court based its decision,
that modification was appropriate under both the local rule and
18 U.S.C. § 3583(d), on Kelly’s record. The Government was not
required to present any evidence of new conduct justifying
modification, and Kelly fails to show the new conditions are not
reasonably related to pertinent § 3553(a) factors referred to in
§ 3583(d), or that they involve a greater deprivation of liberty
than is reasonably necessary to achieve the § 3553(a) goals.
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Accordingly, we affirm the district court’s order. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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