Filed: Dec. 12, 2013
Latest Update: Mar. 02, 2020
Summary: Case: 13-10838 Date Filed: 12/12/2013 Page: 1 of 6 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 13-10838 Non-Argument Calendar _ D.C. Docket No. 5:05-cr-00046-SDM-TBS-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus KYLE E. MCCLAMMA, Defendant-Appellant. _ Appeal from the United States District Court for the Middle District of Florida _ (December 12, 2013) Before PRYOR, MARTIN, and JORDAN, Circuit Judges. PER CURIAM: Case: 13-10838 Date Filed: 12/
Summary: Case: 13-10838 Date Filed: 12/12/2013 Page: 1 of 6 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 13-10838 Non-Argument Calendar _ D.C. Docket No. 5:05-cr-00046-SDM-TBS-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus KYLE E. MCCLAMMA, Defendant-Appellant. _ Appeal from the United States District Court for the Middle District of Florida _ (December 12, 2013) Before PRYOR, MARTIN, and JORDAN, Circuit Judges. PER CURIAM: Case: 13-10838 Date Filed: 12/1..
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Case: 13-10838 Date Filed: 12/12/2013 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-10838
Non-Argument Calendar
________________________
D.C. Docket No. 5:05-cr-00046-SDM-TBS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KYLE E. MCCLAMMA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(December 12, 2013)
Before PRYOR, MARTIN, and JORDAN, Circuit Judges.
PER CURIAM:
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Kyle E. McClamma appeals the district court’s denial of his motion for
termination of his life term of supervised release. See 18 U.S.C. § 3583(e)(1). Mr.
McClamma argues that the district court failed to properly consider the factors set
forth in 18 U.S.C. § 3553(a), as required by § 3583(e)(1), and assigned improper
weight to his failed polygraph exams and the opinion of the probation officer.
Mr. McClamma also challenges Special Condition No. 3 of the terms of his
supervised release on the grounds that his similar pre-trial restriction against
having contact with minors excluded his daughter, there was no notice that the
exclusion would not be applicable to his terms of supervised release, and the
restriction was unwarranted given the low risk he presented of committing a hands-
on offense. He further objects to the requirement that he attend and pay for sex
offender treatment and the restriction against his internet use as being unjustly
burdensome and punitive.
We review the denial of a motion to modify supervised release, in this case
to terminate supervised release, for an abuse of discretion. See United States v.
Cunningham, 607 F.3d 1264, 1266 (11th Cir. 2010) (reviewing a motion for
revocation of supervised release, pursuant to 18 U.S.C. § 3583(e)(3), for an abuse
of discretion). In relevant part, § 3583(e)(1) permits a district court to terminate a
term of supervised release after the completion of one year of the term if, after
considering specified factors set forth in § 3553(a), the court determines that such
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action is warranted by the defendant’s conduct and is in the interest of justice. 18
U.S.C. § 3583(e)(1). The Supreme Court has explained that the purpose of
supervised release “is to improve the odds of a successful transition from the
prison to liberty.” Johnson v. United States, 529 U.S. 694, 708-09 (2000). By
requiring courts to consider §§ 3553(a)(1), (a)(2)(B)–(D), and (a)(4)–(7), Congress
has indicated that the history and characteristics of the defendant, the nature of the
offense, deterrence, public protection, training and education, the applicable
guideline range for the offense, and avoidance of an unwarranted sentence
disparity with similarly situated defendants are all relevant to the determination
whether to modify a term of supervised release. See 18 U.S.C. § 3583(e)(1).
Here, in denying Mr. McClamma’s motion both at the hearing and in a
written order, the district court indicated that it had considered the entire record,
expressly referenced the § 3553(a) factors, emphasized the need to protect the
community from sex offenders like Mr. McClamma, and concluded that his
behavior indicated that he still posed a threat to others. The court was particularly
concerned with the short length of time Mr. McClamma had been on supervised
release, his aggressive and adversarial behavior throughout the process contesting
his supervised release, and his negative polygraph test results. Although Mr.
McClamma argues that the court did not properly consider all of the relevant
evidence, the court stated that it considered the record evidence, and we find
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nothing in the statute that requires the district court to give any particular weight to
any of the § 3553(a) factors. Similarly, because the court was permitted to
consider the characteristics of the defendant and deterrence, see 18 U.S.C.§§
3553(a)(1), (a)(2)(B), we cannot say that it abused its discretion in considering Mr.
McClamma’s failed polygraph tests in reaching its ultimate conclusion.
For the first time on appeal, Mr. McClamma also challenges as substantively
unreasonable three of the conditions of his supervised release, including the
prohibition on direct contact with minors under the age of 18 without the written
approval of his probation officer, the requirement that he attend sex offender
treatment at his own expense and a restriction against internet use without prior
authorization from the probation office. Although we hold Mr. McClamma’s pro
se pleadings to a less stringent standard and construe them liberally, we cannot
review these claims. See Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir. 2003)
First, Mr. McClamma did not raise these arguments before the district court
in his motion for early termination of supervised release and thus, the district court
has had no opportunity to rule on these claims in this proceeding. See Access Now,
Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004) (holding that
arguments raised for the first time on appeal need not be considered). Although
these claims might be reviewable if brought pursuant to a motion to modify the
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conditions of supervised release, under 18 U.S.C. § 3583(e)(2), 1 that is not the
motion filed by Mr. McClamma in this proceeding. Nor is there any indication in
the record that he addressed or requested modification of these conditions of his
supervised release in the district court proceedings. 2
Second, to the extent that Mr. McClamma’s claims are a direct challenge to
the district court’s sentencing order from 2006 that imposed these conditions of
supervised release, his appeal is untimely. Under the Federal Rules of Appellate
Procedure, a defendant’s notice of appeal must be filed in the district court within
14 days of the entry of judgment. See Fed. R. App. P. 4(b). Upon a finding of
excusable neglect or good cause, the district court may extend the time to file a
notice of appeal for an additional period of up to 30 days. See Fed. R. App. P.
4(b)(4). Although the timeliness requirements of Rule 4(b) are not jurisdictional,
they assure relief to a party that properly raises them. See United States v. Lopez,
562 F.3d 1309, 1313-14 (11th Cir. 2009). As Mr. McClamma seeks to challenge
1
This statutory provision provides that a court may
extend a term of supervised release if less than the maximum
authorized term was previously imposed, and may modify, reduce,
or enlarge the conditions of supervised release, at any time prior to
the expiration or termination of the term of supervised release,
pursuant to the provisions of the Federal Rules of Criminal
Procedure relating to the modification of probation and the
provisions applicable to the initial setting of the terms and
conditions of post-release supervision. (Emphasis added).
2
We note that the record indicates that Mr. McClamma has challenged the condition
related to his contact with minors in a separate counseled 28 U.S.C. § 2255 proceeding.
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the terms of his supervised release more than six years since his sentence was
imposed in 2006, his claims are untimely.
Accordingly, we dismiss Mr. McClamma’s claims challenging the
conditions of his supervised release and affirm the district court’s denial of his
motion for early termination of his supervised release.
AFFIRMED.
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