United States District Court, E.D. Tennessee, Greeneville
MEMORANDUM AND ORDER
LEON JORDAN, District Judge.
The defendant pled guilty to a controlled substance offense and a firearm offense. He will be sentenced on November 4, 2014. The United States Probation Office has prepared and disclosed a Presentence Investigation Report ("PSR") [doc. 24]. The defendant objects to the PSR's recommendation that the court impose one special condition of supervised release pertaining to sex offenders. That condition provides, "The defendant shall submit to a psychosexual assessment at his/her own expense, as directed by the probation officer." See E.D. Tenn. L.R. 83.10(b)(7). For the reasons that follow, the defendant's objections will be overruled and the disputed condition will be imposed, although in a slightly modified form.
Background and Criminal History
In the present case, the defendant admittedly carried a concealed and loaded semi-automatic pistol in furtherance of a drug trafficking offense. [Doc. 17]. He committed those offenses in October 2013. Id.
In January 2007, the defendant pled guilty in the Horry County, SC, Family Court to the reduced charge of assault and battery of a high and aggravated nature. The defendant was either 13 or 14 years old when he committed that offense. He was initially charged with criminal sexual conduct with a five-year-old child. The PSR describes the offense in greater detail, and the defendant objects to that description. The facts cited by the court immediately above, however, are taken from the Horry County Family Court's Petition and January 16, 2007 Order. While the particulars of the offense conduct may be in dispute, the undersigned has reviewed the Family Court documents and is satisfied that the underlying conduct in that case was of an aggressive and sexual nature.
The remaining pertinent background information discussed below is taken from the PSR and has 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 September 2010, the defendant was convicted of offenses including evading arrest. [Doc. 24, ¶ 35]. A probation violation warrant was subsequently issued in that case due in part to the defendant's failure to report to his probation officer. Id. Also in September 2010, the defendant was separately convicted of failure to appear. [Doc. 24, ¶ 37].
In August 2012, the defendant was convicted of offenses including evading arrest and tampering with evidence. [Doc. 24, ¶ 36]. The defendant fled on foot from a traffic stop and hid a semi-automatic handgun from the arresting officer. Id. In March 2013, a probation violation warrant was issued in that case due to the defendant's noncompliance with numerous conditions of supervision, including his failure to report to his probation officer in the preceding three months. Id.
As noted, the PSR recommends imposition of one of the twelve sex-offender special conditions of supervision adopted by this court's Local Rule 83.10(b). The condition at issue provides, "The defendant shall submit to a psychosexual assessment at his/her own expense, as directed by the probation officer." See E.D. Tenn. L.R. 83.10(b)(7). The defendant objects to this requirement because "the conviction in this case is not related in any way to a sex crime...."
The defendant also objects to the PSR's reference to the Adam Walsh Child Protection and Safety Act of 2006 and the PSR's listing of all twelve of the Local Rule 83.10(b) special conditions. The PSR's brief mention of the Adam Walsh Child Protection and Safety Act of 2006 is merely introductory language found in all PSRs in this district if sex-offender conditions are at issue. Similarly, the PSR's listing of all of the 83.10(b) conditions is merely background information. Neither of these matters will impact the defendant's sentencing, nor should they affect classification within the Bureau of Prisons. As such, these specific issues need not be further addressed.
As to the defendant's ultimate argument that Local Rule 83.10(b)(7) should not be applied to him because "the conviction in this case is ...