United States District Court, E.D. Tennessee, Knoxville Division
MEMORANDUM AND ORDER
LEON JORDAN, District Judge.
The defendant pled guilty to being a felon in possession of firearms. He will be sentenced on September 10, 2014. The United States Probation Office has prepared and disclosed a Presentence Investigation Report ("PSR"). The defendant has filed objections to 12 paragraphs of the PSR - paragraphs 21, 42, 43, 44, 85, 86, 87, 88, 91, 92, 93, and 97. In response, the prosecution states that it does not oppose removal of paragraph 21 [doc. 28] and that it takes no position on the remaining objections [doc. 34]. For the reasons that follow, the defendant's objections will be sustained in small part but otherwise overruled.
The defendant has moved to withdraw his objections to paragraphs 42, 43, and 44 [doc. 32]. It is unclear to the court whether defendant's motion also seeks to withdraw his objection to paragraph 93. The motion, as it is understood by the court, will be granted, and the objections to paragraphs 42, 43, and 44 will be deemed withdrawn.
The original PSR increased the defendant's total offense level by four pursuant to advisory United States Sentencing Guideline 2K2.1(b)(6)(B) for possessing firearms in connection with another felony offense. The defendant objected to that increase.
Because the United States does not oppose removal of the 2K2.1(b)(6)(B) adjustment [doc. 28], the revised PSR no longer includes it. The issue is therefore moot. The court further notes that the defendant's advisory guideline range exceeds his statutory maximum sentence with or without the 2K2.1(b)(6)(B) increase. The question of whether the defendant possessed firearms in connection with another felony offense would therefore not have been an issue this court would have considered in the sentencing of this defendant. See Fed. R. Crim. P. 32(i)(3)(B) (district court need not rule on an objection that will not affect sentencing).
Defendant's Background and Criminal History
The remaining objections pertain to the PSR's recommended imposition of seven special sex-offender supervision conditions taken from this court's Local Rules. See E.D. Tenn. L.R. 83.10(b). Paragraphs 85, 86, 87, 88, 91, 92, and 93 set forth the conditions at issue, and paragraph 97 recommends their imposition.
Before turning to the general and specific objections to each of these conditions, a brief summary of the defendant's history and characteristics is necessary. All facts discussed below are taken from the original and amended PSR and have not been objected to by the defense. As such, these details are conclusively accepted by the court as findings of fact. See Fed. R. Crim. P. 32(i)(3)(A).
In October, 2005, the defendant pled guilty to attempted rape, having engaged in sexual intercourse with a 14-year-old girl on February 26, 2005. [Doc. 21, ¶ 42]. The defendant is now required to register as a sex offender. Id. ¶¶ 51, 52, 56.
In the present case, the defendant was apprehended following a dangerous high-speed pursuit on June 25, 2013. Id. ¶¶ 10, 15. After the van he was driving was finally stopped, the defendant fled on foot as did two other occupants of the vehicle, one of whom was a juvenile female. Id. ¶10. The defendant had removed the electronic monitoring device that he was required to wear by the Tennessee Board of Probation and Parole. Id. ¶ 9. Fifteen stolen firearms were found either in the defendant's vehicle or in the area where he fled. Id. ¶ 11.
The court need not set out, crime by crime, the defendant's criminal history in its entirety. Suffice it to say that the present defendant has one of the more alarming histories (and one of the more alarming records of noncompliance) that this court has seen.
As relevant to the remaining objections, the PSR documents a staggering number of probation violations, id. ¶¶ 33, 34. 38, 39, 40, 42, 44, and flight offenses including resisting arrest, evading arrest, and facilitating escape. Id. ¶¶ 35, 36, 37, 41, 44, 45. There are at least five pending charges for failure to register as a sex offender between 2011 and 2013. Id. ¶¶ 51, 52, 56. There is a 2012 assault conviction and a pending charge for another 2012 (aggravated) assault. Id. ¶¶ 45. 55. There is a pending charge for the 2012 rape of a fifteen-year-old. [Doc. 37, ¶ 53]. A 2002 sexual battery charge was dismissed for unknown reasons. [Doc. 21, ¶ 59].
It further appears that the defendant has not been honest in his statements to law enforcement and probation officers. The PSR documents three different stories regarding the defendant's number of children. Id. ¶ 63. Additionally, the defendant told this court's probation officer that "he experienced a good childhood with no significant problems." Id. ¶ 62. However, a 2003 Tennessee Board of Probation and Parole report states that the defendant "related a very unhappy childhood" in a difficult home. Id. ¶ 65. That same report includes the defendant's statement that by age 13 he was drinking a case of beer per week supplemented by marijuana, Percocet, and Xanax. Id. ¶ 70. The defendant told this court's probation officer that he has a GED, but that information cannot be verified. ...