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Criminal Practice – Court Could Order Sex-Offender Evaluation

U.S. v. Douglas (Lawyers Weekly No. 001-066-17, 13 pp.) (Traxler, J.) No. 16-4615, March 9, 2017; USDC at Charlottesville, Va. (Moon, J.) 4th Cir.

Holding: When sentencing defendant on his guilty plea to failure to register as a sex offender as required by 18 U.S.C. § 2250(a), the district court did not err in imposing as a special condition of supervised release that defendant undergo a sex-offender evaluation, according to the 4th Circuit.

Virginia Criminal Record

Defendant was convicted in Virginia state court of aggravated sexual abuse in August 1994, arising out of sexual abuse of a minor from January 1990 through February 1992, when his victim was between 10 and 12 years old. Defendant was in this early 30s at the time. He was sentenced to 10 years in prison, suspended to one year, plus two years of supervised probation. He participated in a sex-offender treatment program in 1995, while on state probation. He last registered as a sex offender in October 2001, in Virginia. He has successfully evaded detention and arrest by assuming a false name and moving across state lines. He resided at various times in Washington D.C., Kentucky and Texas. He was finally located and arrested in Texas in February 2016.

In addition to a 15-month suspension and five years of supervised release for violation of the Sex Offender Registration and Notification Act, the district court imposed the condition of undergoing a sex-offender evaluation.

Sex offender conditions of supervised release may be imposed, even at sentencing for crimes which are not sex crimes, if supported by 18 U.S.C. § 3583(d).

Here, the district court shared the government’s concern about the 14-plus years of evasive actions that defendant took to avoid apprehension by law enforcement after he failed to register as a sex offender. The district court stated that it had considered the factors noted in 18 U.S.C. § 3553(a): defendant’s history, characteristics and the nature and circumstances of the offense, as well as defendant’s prior sex conviction.

Having reviewed all of the relevant considerations, the district court decided to only impose the limited condition that defendant submit to a sex-offender evaluation, explaining that the probation officer will then know what the provider determined, and can look for guidance from the sex offender conditions for further appropriate conditions.

We are satisfied that the district court adequately considered the parties’ arguments and that the district court’s explanation, while brief, was sufficient to allow meaningful appellate review of the substantive reasonableness of the challenged condition.

On the Run

The district court plainly did not ground the challenged condition that defendant submit to a sex-offender evaluation solely upon defendant’s 1994 conviction. Rather, a number of other circumstances weighed into and justified the court’s decision. Defendant’s prior sex offense involved sexual assault of a prepubescent minor on multiple occasions.

Although he completed a sex-offender treatment program in 1995, defendant ceased complying with his registration requirements in 2010, within five years of completing his state probation term. He then took affirmative steps, including changing his name and moving regularly, to elude detection and arrest for over 14 years. Defendant made a conscious choice to defeat the purposes of the sex-offender registration law in several different jurisdictions for well over a decade.

We hold the district court acted well within its broad discretion to impose the condition that defendant submit to a sex-offender evaluation. The condition is reasonably related to the nature and circumstances of the offense and the history and characteristics of the defendant, including his prior sex offense and the extraordinary steps he took to avoid registration and apprehension by law enforcement for many years. The condition is also reasonably related to the need to protect the public from further crimes of defendant, to provide defendant with needed treatment in the most effective manner and to afford adequate deterrence to criminal conduct in the future.

Judgment affirmed.

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