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United States v. Mercer

United States District Court, E.D. Tennessee

July 6, 2017

UNITED STATES OF AMERICA
v.
JOSHUA FRANKLIN MERCER

          MEMORANDUM AND ORDER

          Leon Jordan United States District Judge

         The defendant pled guilty to failing to register as a sex offender. He will be sentenced on July 20, 2017. The United States Probation Office has prepared and disclosed a Presentence Investigation Report (“PSR”) [doc. 17]. The defendant has filed five objections to the PSR, including a challenge to the recommendation that the court impose a 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.”

         The probation office has filed a PSR Addendum responding to the defendant's objections [doc. 20], and the United States has addressed the disputed special supervision condition in its sentencing memorandum [doc. 21]. For the reasons that follow, all of the defendant's objections will be overruled and the disputed special condition will be imposed, although in a slightly modified form.

         I.

         Background and Criminal History

         The agreed factual basis in this case, which was signed by the defendant and his attorney, provides in material part,

On April 27, 2005, the defendant pleaded guilty to two counts of sexual battery in violation of Tennessee Code Annotated § 39-13-505 in Sullivan County, Tennessee. As a result of this conviction, the defendant was required to register as a sex offender.
The defendant was placed on supervised release [in 2015, following state convictions for violations of the sex offender registry] and fitted with an electronic monitoring device. On November 1, 2016, while under supervised release, the defendant removed the electronic monitoring device and the Tennessee Board of Probation and Parole submitted a Violation of Probation petition and requested assistance from the Tennessee Department of Corrections, which placed the defendant in a fugitive status.
On January 12, 2017, the Tennessee Department of Corrections and the United States Marshals Service arrested the defendant at the Veterans Affairs Medical Center in Mountain Home, Tennessee [where he was working].
Between November 1, 2016[, ] and January 12, 2017, the defendant traveled in interstate commerce between various communities in Virginia and Tennessee. The defendant did not notify law enforcement authorities of his presence in those communities and did not comply with the sex offender registration laws of Tennessee and Virginia during that period of time.
The defendant was aware of his obligation to update his registration in Tennessee and in Virginia and knowingly and willfully failed to register.

[Doc. 13].

         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).

         The above-cited 2005 convictions, for Sexual Battery, stemmed from events occurring in 2003. The victim was thirteen years old and the defendant was eighteen. [PSR ¶ 26]. The defendant had consumed at least fourteen beers. Id.

         The defendant's subsequent convictions include violent and reckless conduct. Id. ¶¶ 28, 29. He committed multiple infractions while in the custody of the Tennessee Department of Correction. Id. ¶ 28. He has violated conditions of probation and has three prior convictions for violation of the sex offender registry. Id. ¶¶ 26, 31, 32. On one of those occasions, he was ultimately located hiding in a home where children were present. Id. ¶ 33. The defendant subsequently used a knife to cut off an electronic tracking device and went missing for more than two months. Id. ¶ 32. Admittedly, he was “on the ...


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