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United States v. Cook

United States District Court, E.D. Tennessee

February 26, 2018

UNITED STATES OF AMERICA
v.
WESLEY COOK

          MEMORANDUM AND ORDER

          THOMAS W. PHILLIPS, SENIOR UNITED STATES DISTRICT JUDGE.

         Defendant Wesley Cook 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 revised Presentence Investigation Report (“PSR”) [Doc. 22]. The defendant has filed objections to four of the proposed special conditions of supervised release in paragraph 88 of the revised PSR [Docs. 20, 24]. The government has responded by concurring in the Probation Officer's recommendation of the proposed special conditions [Doc. 26]. The Probation Office has also responded to the objections and declined to remove the proposed special conditions [Doc. 27].

         I. Background

         In 2011, the defendant was convicted of Rape in the Court of Common Pleas for Cuyahoga County, Ohio, a Tier III offense [PSR ¶ 47]. This offense involved three child victims, ages 5, 5 and 8, and included physical sexual contact [Id.]. It is noteworthy that the description of these crimes indicates that defendant “committed the offenses by holding the victims down and locking doors” [Id.]. Following this conviction, the defendant was required to register as a sex offender under SORNA [PSR ¶ 9].

         After a three-year term of incarceration, the defendant was supervised by the State of Tennessee [PSR ¶ 47].[1] In July 2016, the Tennessee Department of Corrections reported to the State of Ohio that the defendant had violated the terms of his parole, including testing positive for marijuana, possession of marijuana, having pornography on his phone, and failing to attend sex offender treatment [PSR ¶¶ 5, 47]. In August 2016, the defendant was ordered to return to Cleveland, Ohio for a parole hearing during which the Ohio Parole Board ordered the defendant to remain in Ohio for the duration of his parole, that is, until 2019 [PSR ¶ 5]. The defendant admittedly did not do so and returned to Tennessee [Id. at ¶ 6]. The defendant did not notify law enforcement or update his sex offender registration status from August 2016 until his arrest on October 20, 2016 [Id. at ¶¶ 6, 9]. The defendant was indicted in the instant case in February 2017 [Doc. 1].

         II. Analysis

         The defendant's objections pertain to the recommended imposition of four 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 88(b) - (f), (j)-(k), (m).

         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 “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 88(a) which recommends the imposition of ...


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