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United States v. Scott

United States District Court, E.D. Tennessee, Knoxville

January 29, 2018

UNITED STATES OF AMERICA
v.
MARK EDWARD SCOTT

          MEMORANDUM AND ORDER

          THOMAS W. PHILLIPS, SENIOR UNITED STATES DISTRICT JUDGE.

         Defendant Mark Edward Scott 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. 23]. The defendant has filed objections to six of the proposed special conditions of supervised release in paragraph 61 of the PSR [Doc. 24]. The Probation Office has responded to the objections and declined to remove the proposed special conditions [Doc. 26]. The government has responded by concurring in the Probation Office's response [Doc. 30].

         I. Background

         In 1996, defendant was convicted in the Sixth Circuit Court of Pontiac, Michigan, of four counts of Second Degree Criminal Sexual Conduct involving his 14-year old step- daughter [PSR ¶ 31].[1] Defendant was thereafter required to register as a sex offender for a period of 25 years. The defendant has had two subsequent convictions for driving related offenses [PSR ¶¶ 32-33], but he has had no further convictions or arrests for a sex offense. In the instant case, the defendant was stopped by the Knoxville Police Department for speeding on January 4, 2017 [PSR ¶ 9]. The defendant admitted that he had been living habitually, although somewhat intermittently, in Knoxville since November 18, 2016, and continuously since December 26, 2016 [PSR ¶¶ 8-9]. The defendant did not notify authorities responsible for registering the defendant or for maintaining his sex offender registration status that he was residing in Knoxville [Id. at ¶ 10].

         While on pretrial release in this case, the defendant submitted a diluted drug screen on July 13, 2017, and submitted several subsequent drug screens that were positive for marijuana [Id. at ¶ 4]. Following these positive drug screens, the defendant's pretrial release was revoked.

         II. Analysis

         The defendant's objections pertain to the recommended imposition of six 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 61(b), (e)-(f), (k), 62.

         Special conditions of supervised release must be “reasonably related to the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D).” 18 U.S.C. § 3583(d)(1). They must also impose “no greater deprivation of liberty than is reasonably necessary for the purposes set forth in section 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D), ” and be “consistent with any pertinent policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3583(d)(2), (d)(3). The Sixth Circuit set forth the following factors for consideration in imposing special conditions of supervised release:

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).

         In 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.

         Carter 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.

         A. Sex Offender Mental Health Treatment

         Defendant's first objection is to paragraph 61(a) which recommends the imposition of special condition found in SO-15-06(1):

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, ...

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