United States District Court, E.D. Tennessee, Greeneville
MEMORANDUM AND ORDER
W. Phillips SENIOR UNITED STATES DISTRICT JUDGE
Rashan Jordan pled guilty to failing to register as a sex
offender under the Sex Offender Registration and Notification
Act (“SORNA”), in violation of 18 U.S.C. 2250(a).
The United States Probation Office has prepared and disclosed
a Presentence Investigation Report (“PSR”) [Doc.
18]. The defendant has filed objections to three of the
proposed special conditions of supervised release in
paragraphs 93, 100, and 101 of the PSR [Doc. 21]. The
Probation Office has responded to the objections and declined
to remove the proposed special conditions [Doc. 23]. The
government has responded by simply concurring in the
Probation Office's analysis and further noting that the
special conditions in question are not mandatory, but rather
are conditioned on the discretion of the supervising
Probation Officer [Doc. 24].
of background, defendant was convicted in the Knox County
Criminal Court for attempted aggravated sexual battery for a
1998 offense at the age of 17 and he was thereafter required
to register as a sex offender. The defendant has a lengthy
criminal history and a history of probation revocations since
that time, but he has had no further convictions or arrests
for a sex offense. In the instant case, the Knox County
General Sessions Court issued warrants for the defendant in
September 2015 for sex offender registry violations and
community supervision violations. The defendant was
ultimately located in Atlanta, Georgia in January 2016 and
entered a plea to the SORNA violation on October 5, 2016.
defendant's objections pertain to the recommended
imposition of three special sex-offender supervision
conditions taken from this Court's Standing Order 15-06.
It is worth noting that defendant has not objected to
all of the proposed special sex-offender supervision
conditions. See, e.g., PSR paragraphs 94-99,
102-103. Defendant's first objection is to paragraph 93
which recommends the imposition of special condition found in
The defendant shall participate in a program of sex offender
mental health treatment at his/her own expense, as approved
by the probation officer, until such time as he/she is
discharged from treatment by the provider and as approved by
the probation officer. The defendant shall comply with the
policies and procedures of the treatment program. The
defendant shall waive all rights to confidentiality regarding
sex offender mental health treatment in order to allow
release of information to the United States Probation
Officer, and to authorize open communication between the
probation officer and the treatment providers. (Any reference
to the defendant paying for counseling, treatment, and/or
assessments is an indication that the United States Probation
Office will conduct a routine financial assessment of the
defendant's ability to pay.)
[Doc. 18 at ¶ 93].
on United States v. Carter, 463 F.3d 526 (6th Cir.
2006), and two recent cases from this District, United
States v. Curtis, No. 2:02-CR-062, 2009 WL 211119 (E.D.
Tenn. Jan. 28, 2009) (Jordan, J.), and United States v.
Tipton, No. 3:91-CR-52-PLR-CCS, 2014 WL 5089888 (E.D.
Tenn. Oct. 9, 2014) (Reeves, J.), defendant argues that his
prior sex offense is too remote to justify the need for this
special condition. He correctly notes that the instant
offense, failure to register under SORNA, is not a “sex
offense” as defined in United States Sentencing
Guideline (“U.S.S.G.”) §5D1.2, app. n. 1.
Defendant disputes the Probation Office's reasoning that
sex offender treatment, designed to treat the offender's
unlawful sexual proclivities, would assist him in maintaining
his registration [Doc. 21 at pp. 2-4].
Sixth Circuit set forth the following factors for
consideration in imposing special conditions of supervised
A sentencing court may impose a non-mandatory condition of
supervised release only if it meets three requirements.
First, the condition must be “reasonably related
to” several sentencing factors. These factors are
“the nature and circumstances of the offense and the
history and characteristics of the defendant” and
“the need for the sentence imposed . . . to afford
adequate deterrence to criminal conduct; . . . to protect the
public from further crimes of the defendant; and . . . to
provide the defendant with needed educational or vocational
training, medical care or other correctional treatment in the
most effective manner.” Second, the condition must
“involve no greater deprivation of liberty than is
reasonably necessary for” several sentencing purposes.
These purposes are “to afford adequate deterrence to
criminal conduct; . . . to protect the public from further
crimes of the defendant; and . . . to provide the defendant
with needed educational or vocational training, medical care
or other correctional treatment in the most effective
manner.” Third, the condition must be “consistent
with any pertinent policy statements issued by the Sentencing
Commission.” Because they are written in the
conjunctive, a condition must satisfy all three requirements.
However, a condition need not satisfy every single factor and
purpose within each of the first two requirements.
United States v. Carter, 463 F.3d 526, 529 (6th Cir.
2006) (citations omitted).
Carter, the defendant pled guilty in 2001 to being a
felon in possession of a firearm. In 2005, the district court
added a supervised release condition pertaining to sex
offenders. Carter's criminal history included 1988
convictions for rape and assault with intent to commit rape,
along with a 2004 stalking conviction. The Sixth Circuit
concluded that the 1988 convictions were too remote in time
to justify the 2005 imposition of a sex-offender-treatment
condition. Id. at 532. Carter's case was
remanded for the district court to determine whether the 2004
stalking offense was sufficiently sexual in nature to justify
imposition of the special condition. Id. at 533.
did not, however, “decide precisely how much time must
elapse before a sex offense becomes too remote in time to be
reasonably related to a sex-offender condition.”
Id. at 532. Subsequently, the Sixth Circuit has
affirmed the imposition of sex-offender conditions based on
multiple sex offenses occurring as recently as 12 years
prior. See United States v. Brogdon, 503 F.3d 555,
565 (6th Cir. 2007). In the 2006 case of United States v.
Perkins, 207 F. App'x 559, the Sixth Circuit upheld
a sex-offender-treatment condition in light of a 1995 sex
offense conviction, a 1994 assault conviction, and older
assault charges. Id. at 562.
addressing the nature and circumstances of the instant
offense, the defendant correctly notes that his failure to
register as a sex offender is not a “sex offense”
as defined by U.S.S.G. §5D1.2, app. n. 1. Although the
defendant has a prior conviction for a sex offense, this
offense occurred nearly 20 years ago when defendant was 17
years of age. It will be even more remote after he serves a
term of imprisonment for the instant offense. While the
defendant has had numerous arrests and convictions in the
interim, none of the those involve sex offenses. The
Probation Office has provided no information that defendant
is likely to reoffend by committing a sex offense or that he
presents a continuing risk as a sexual predator. Rather, the
risk is that he may abscond from supervision again and/or
fail to register as a sex offender in the appropriate
jurisdiction. The proposed special condition requiring sex
offender mental health treatment does nothing to alleviate
that risk. See United States v. Kelly, 630 F.
App'x 416, 422 (6th Cir. 2015). Thus, the proposed
special condition does not seem likely “to serve the
goals of deterrence or public safety, since the behavior on
which the special condition … [is] based, though
highly reprehensible, has ceased.” Carter, 463
F.3d at 531 (quoting United States v. Scott, 270
F.3d 632, 636 (8th Cir. 2001)). Accordingly, the Court finds
that this proposed special condition of supervision is not
reasonably related to the sentencing factors set forth in 18
U.S.C. § 3553(a) and the defendant's objection to
paragraph 93 is SUSTAINED.
also objects to PSR paragraph 100 which proposes the
following special condition found in SO-15-06(8): “The
defendant shall submit to psychosexual assessment at his/her
own expense, as directed by the probation officer”
[Doc. 18 at ¶ 100]. Defendant particularly objects to