Filed: Apr. 01, 2011
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4026 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RUFUS NEELEY, Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Big Stone Gap. James P. Jones, Chief District Judge. (2:09-cr-00016-jpj-1) Submitted: March 23, 2011 Decided: April 1, 2011 Before WILKINSON, AGEE, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Larry W. Shelton, Federal Pub
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4026 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RUFUS NEELEY, Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Big Stone Gap. James P. Jones, Chief District Judge. (2:09-cr-00016-jpj-1) Submitted: March 23, 2011 Decided: April 1, 2011 Before WILKINSON, AGEE, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Larry W. Shelton, Federal Publ..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4026
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RUFUS NEELEY,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap. James P. Jones, Chief
District Judge. (2:09-cr-00016-jpj-1)
Submitted: March 23, 2011 Decided: April 1, 2011
Before WILKINSON, AGEE, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Larry W. Shelton, Federal Public Defender, Brian J. Beck,
Assistant Federal Public Defender, Abingdon, Virginia, for
Appellant. Timothy J. Heaphy, United States Attorney, Jennifer
R. Bockhorst, Assistant United States Attorney, W. Elliott
Hunter, Third-Year Law Student, Abingdon, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rufus E. Neeley pled guilty in the Eastern District of
Tennessee in 2003 to one count of possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g) (2006).
Neeley was sentenced to eighty-seven months’ imprisonment,
followed by a three-year term of supervised release. The U.S.
Court of Appeals for the Sixth Circuit affirmed Neeley’s
conviction and sentence in 2004.
Neeley requested to serve his term of supervised
release in the Western District of Virginia upon his release
from prison. The U.S. Probation Office in that district
informed Neeley that it would not agree to accept his
supervision unless he agreed to a modification of his supervised
release terms to include the Tier III sex offender conditions
set forth in the district court’s Standing Order 07-01. Neeley
agreed to the proposed modifications, but would not waive his
right to a hearing on the proposed modifications. The district
court held a hearing and upheld all of the Tier III conditions,
except a curfew restriction and conditions limiting Neeley’s use
of a computer and other devices that could be used to access the
Internet. Neeley appeals the district court’s imposition of the
new conditions.
On appeal, Neeley first claims that the district court
was without authority to impose new terms of supervised release
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after his supervision was transferred from Tennessee to
Virginia. Because the district court’s judgment in Tennessee,
affirmed on appeal, did not include the sex offender conditions,
Neeley contends the imposition of the new terms violated the law
of the case and the Sixth Circuit’s mandate, and the district
court’s action does not fit within any of the recognized
exceptions to the mandate rule.
Neeley did not preserve this objection in the district
court, and thus we review the claim for plain error. See United
States v. Lynn, 592 F.3d 572, 577 (4th Cir. 2010). To establish
plain error, Neeley must show: (1) there was an error; (2) the
error was plain; (3) the error affected his substantial rights.
United States v. Olano,
507 U.S. 725, 732 (1993). Even if
Neeley makes this three-part showing, this court may exercise
its discretion to correct the error only if it “seriously
affects the fairness, integrity or public reputation of judicial
proceedings.”
Id. at 736.
Our review of the record leads us to conclude that
Neeley has not established error. The district court was
expressly authorized by 18 U.S.C. § 3583(e)(2) (2006) to modify
or enlarge the terms of Neeley’s supervised release, and the law
of the case and mandate rules do not invalidate the district
court’s imposition of the new terms.
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Neeley next contends that because the offense that
resulted in his term of supervised release was not a
specifically enumerated offense listed in the district court’s
Standing Order, the court’s application of that order to his
offense of conviction violated his right to procedural due
process. The district court conducts proceedings to modify or
enlarge an offender’s supervised release terms pursuant to the
provisions of the Federal Rules of Criminal Procedure relating
to the modification of probation. 18 U.S.C. § 3583(e)(2). Fed.
R. Crim. P. 32.1(c) provides that “before modifying the
conditions of . . . supervised release, the court must hold a
hearing, at which the person has the right to counsel and an
opportunity to make a statement and present any information in
mitigation.” Here, the district court held a hearing at which
Neeley testified, offered evidence in mitigation, and was
represented by counsel. Thus, despite the fact that Neeley’s
offense was not listed in the district court’s Standing Order,
the court’s application of conditions set forth in that order to
Neeley did not violate his right to procedural due process.
Neeley also argues that the substance of several of
the new conditions violates his right to due process and his
First Amendment right of association, and also fails the
requirements of the supervised release statute. “District
courts have broad latitude to impose conditions on supervised
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release,” and so we review such conditions only for abuse of
discretion. United States v. Armel, 585 F.3d 182, 186 (4th Cir.
2009). The sentencing court may impose any condition that is
reasonably related to the relevant statutory sentencing factors,
which include: the nature and circumstances of the offense and
the history and characteristics of the defendant, providing
adequate deterrence, protecting the public from further crimes,
and providing the defendant with training, medical care, or
treatment.
Id. at 186. The sentencing court must also ensure
that the condition involves no greater deprivation of liberty
than is reasonably necessary to afford adequate deterrence, to
protect the public from further crimes, and to provide the
defendant with training, care or treatment. 18 U.S.C.
§ 3583(d)(2); United States v. Dotson,
324 F.3d 256, 260-61 (4th
Cir. 2003). The conditions must also be consistent with
Sentencing Commission policy statements. 18 U.S.C.
§ 3583(d)(3). A particular restriction does not require “an
offense-specific nexus,” United States v. Perazza-Mercado,
553
F.3d 65, 70 (1st Cir. 2009), but the sentencing court must
explain its decision and its reasons for imposing the chosen
conditions.
Armel, 585 F.3d at 186.
This court reviews de novo constitutional due process
claims. United States v. Legree, 305 F.3d 724, 729 (4th Cir.
2000). Similarly, a condition that restricts fundamental rights
5
must be “narrowly tailored and . . . directly related to
deterring [the defendant] and protecting the public.” United
States v. Crandon, 173 F.3d 122, 128 (3d Cir. 1999). However,
if a defendant fails to raise a particular constitutional
challenge in the district court, this court reviews the issue
for plain error. United States v. Mackins,
315 F.3d 399, 408
(4th Cir. 2003).
Neeley contends that the terms prohibiting him from
possessing “pornography or erotica” and “sexually oriented or
stimulating material” and from patronizing or entering any
locations where such material may be accessed are not defined
with sufficient clarity and therefore violate his right to due
process. He argues that the conditions fail to provide notice
of what materials he may not possess and what locations he may
not patronize or enter. Neeley did not preserve this objection
in the district court, and thus we review the claim for plain
error. Our review of the record leads us to conclude that
Neeley has not established plain error. Even if we assume
error, an error is plain only if it runs afoul of well-settled
law. United States v. Baum, 555 F.3d 1129, 1135-36 (10th Cir.
2009). Neither this court nor the Supreme Court has addressed
whether the challenged terms are constitutional. Thus, the
district court’s imposition of these terms does not run afoul of
well-settled law.
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Neeley also claims that these conditions are not
reasonably related to the sentencing factors set forth in 18
U.S.C. § 3583(d)(1) (2006), and involve a greater deprivation of
liberty than reasonably necessary to accomplish the goals of
supervised release. Our review of the record leads us to
conclude that the district court did not abuse its discretion in
imposing these conditions.
Finally, Neeley argues that the condition prohibiting
him from “form[ing] a romantic interest or sexual relationship
with a person who has physical custody of any child under the
age of eighteen” fails to conform to the requirements of the
supervised release statute, violates his First Amendment right
of association, and violates his due process rights in that it
fails to adequately define the type of conduct that could result
in revocation of his supervised release. We have reviewed the
record and conclude that the district court did not abuse its
discretion in imposing this term. We also find that the term is
narrowly tailored to protect children and to prevent Neeley from
being placed in a compromising situation. Crandon, 173 F.3d at
128. The terms of this condition permit Neeley to meaningfully
discern the type of conduct that could result in a revocation of
his supervised release. See United States v. Paul,
274 F.3d
155, 167 (5th Cir. 2001) (stating that “[c]onditions of
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probation can be written — and must be read — in a commonsense
way.”).
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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