United States v. Carey Ray ( 2019 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 21, 2018*
Decided January 3, 2019
Before
JOEL M. FLAUM, Circuit Judge
FRANK H. EASTERBROOK, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 17-3573 Appeal from the United
States District Court for
UNITED STATES OF AMERICA, the Northern District of
Plaintiff-Appellee,
Indiana, Hammond
v. Division.
CAREY RAY, No. 2:12-CR-171
Defendant-Appellant. James T. Moody, Judge.
Order
Resentenced after our remand, see United States v. Ray, 831 F.3d 431 (7th Cir.
2016), Carey Ray again contests some conditions of his supervised release. The
dispute concerns the conditions numbered 29 through 32 in the judgment of
conviction.
*This successive appeal has been submitted to the original panel under Operating Procedure 6(b).
We have unanimously agreed to decide the case without argument because the briefs and record
adequately present the facts and legal arguments, and argument would not significantly aid the
court. See Fed. R. App. P. 34(a)(2)(C).
No. 17-3573 Page 2
Condition 29 provides that Ray “must not have direct contact with any
female you know or reasonably should know to be under the age of 18 …
without the permission of the probation officer.” This is an appropriate
condition, given that Ray has been convicted of raping a 14-year-old girl. Ray
calls it vague and overbroad, but it is neither. The qualifier—“know or
reasonably should know”—forecloses an objection on either score. See Screws
v. United States, 325 U.S. 91, 102 (1945); United States v. Johnson, No. 18-1313 (7th
Cir. Dec. 21, 2018), slip op. 5–6. The condition contains two further safety valves:
one allows Ray to obtain retroactive permission by reporting an unplanned
contact within 24 hours, and the other provides that the condition does not
forbid “incidental contact during ordinary daily activities in public places.”
Similar conditions have been approved in decisions such as United States v.
Warren, 843 F.3d 275, 282–83 (7th Cir. 2016).
Condition 30 provides that Ray “must not go to, or be at, any place where
you know or reasonably should know that children under the age of 18 are likely
to be, including parks, playgrounds, and childcare facilities.” This is appropriate
for the same reason as condition 29. See also Doe v. Lafayette, 377 F.3d 757 (7th
Cir. 2004) (en banc) (sustaining the exclusion of all sex offenders from public
parks). Again the knowledge requirement prevents a vagueness challenge. Ray
observes that the district court’s list is not comprehensive, naming only three
kinds of places. That’s true but hardly a problem. Compiling a complete list
would be impossible. The knowledge requirement is a better way to prevent
accidental violations.
Condition 31 requires Ray to participate in a “sex offense-specific assessment
and treatment program.” This is appropriate for the same reason as conditions 29
and 30. See also United States v. Baker, 755 F.3d 515, 527 (7th Cir. 2014) (citing
cases). Although condition 31 does not set out details about the assessment and
treatment program, Ray will be in prison for more than 20 years before his
release, when this condition takes effect. It would not be sensible for a court to
try to specify details of a program that will not commence for 20 years. Too many
things, including best practices for assessment and treatment, are likely to change
between now and then. Conditions of release may be amended or rescinded at
any time, 18 U.S.C. §3583(e)(2), and if Ray is not satisfied by the treatment
program designed by the probation service he may raise this subject with the
district court as his release approaches.
Condition 32 provides that Ray “must not access the Internet except for
reasons approved in advance by the probation officer.” Ray used the Internet to
No. 17-3573 Page 3
meet and entice the girl he eventually drugged and raped. That makes this
condition appropriate. See United States v. Cary, 775 F.3d 919, 926 (7th Cir. 2015).
Details of this process can be assessed in 20 years. Given the rate of technological
change, anything else we could say now would be a waste of words.
AFFIRMED