United States District Court, E.D. Tennessee, Knoxville
MEMORANDUM AND ORDER
W. PHILLIPS, SENIOR UNITED STATES DISTRICT JUDGE.
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].
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]. 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].
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screens, the defendant's pretrial release was revoked.
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.
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
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.
Sex Offender Mental Health Treatment
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, ...