     Case: 16-50985      Document: 00514130336         Page: 1    Date Filed: 08/24/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fif h Circuit
                                      No. 16-50985                                FILED
                                                                            August 24, 2017
                                                                             Lyle W. Cayce
UNITED STATES OF AMERICA,                                                         Clerk

              Plaintiff - Appellee
v.

RYAN LLOYD SHARTZER, also known as Ryan L. Shartzer, also known as
Justin McCarty,

              Defendant - Appellant



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:15-CR-181-1


Before STEWART, Chief Judge, and JONES and CLEMENT, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant appeals the term of supervised release and three
supervised release conditions imposed by the district court. We affirm the term
of supervised release and dismiss as moot the three supervised release
conditions.
                         I.      Facts & Procedural History
       In April 2016, Defendant-Appellant Ryan Lloyd Shartzer pleaded guilty
to failure to register as a sex offender, in violation of 18 U.S.C. § 2250(a). The


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 16-50985
presentence report (“PSR”) set forth Shartzer’s criminal history leading up to
the instant offense. In 2003, Shartzer, who was fifteen years old at the time,
was convicted of aggravated sexual assault in Texas after he and his friend
raped Shartzer’s eight-year-old sister. According to the record, Shartzer held
his sister down, threatened to tie her up and tape her mouth shut if she
screamed, and then raped her. When Shartzer finished raping his sister, he
allowed his friend to enter the room and rape his sister for a second time.
      Shartzer was adjudicated delinquent and sentenced to twenty years to
be served in the Texas Youth Commission. This conviction required him to
register as a sex offender until 2033 in Texas and for life in California. In 2009,
Shartzer was transferred to the custody of the adult parole division, and in
2014, his parole was revoked. Shartzer last registered in Texas in November
2011. In 2014, the U.S. Marshals Service located Shartzer in Willows,
California where he had lived for at least two years with his girlfriend, with
whom he had fathered a child. When marshals initiated a traffic stop of the
truck Shartzer was driving, he provided a Texas driver’s license bearing a false
name, jumped out of his vehicle, and fled on foot. He was eventually captured.
      Using the 2015 Guidelines, the PSR calculated a Guidelines range of
imprisonment of 18 to 24 months based on a total offense level of 13 and a
criminal history category of III. The PSR stated that the statutory range of
supervised release was five years to life and that the Guidelines range of
supervised release was five years. See 18 U.S.C. § 3583(k); U.S.S.G. § 5D1.2(c).
      The PSR reflects that in addition to the 2003 aggravated sexual assault
adjudication, Shartzer received a juvenile adjudication for criminal mischief in
2001; he was convicted of public lewdness in 2008; and he was convicted again
in 2008 for failure to register as a sex offender in Texas. Additionally, he
committed the instant offense of failing to register as a sex offender while on
parole. Shartzer objected to the PSR on a basis not relevant to this appeal. At
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sentencing, the district court stated, “[s]hould the Court apply the sentencing
[G]uidelines, the [G]uidelines recommend but do not require imprisonment
between 18 to 24 months, supervised release of five years to life, a fine of
between $3,000 and $30,000 and a special assessment of $100.” Shartzer
explained that he is married 1 with a two-year-old child and that he has a job
waiting for him in Texas. He requested a sentence of time served and a five-
year term of supervised release. The Government requested a Guidelines
sentence and a supervised release term of at least fifteen years.
       In the context of deciding whether to impose sex offender treatment as a
condition of supervised release, the district court asked defense counsel
whether Shartzer had received counseling in connection with the underlying
sex offense, expressing concern that there was a “deeper psychological issue”
because he had “intercourse with [his] own relative.” The court remarked that
“something deeply troubling happened when he was younger and then he
refused to register as a sex offender and then he has had very unstable
employment, and so—and now he has got a baby in the house, and just there
is a pattern of immaturity and lack of judgment going on.” The discussion
regarding Shartzer’s mental health treatment between the district court and
defense counsel continued for a few minutes prior to sentencing.
       After adopting the PSR and reviewing the sentencing factors under 18
U.S.C. § 3553(a), the district court imposed a sentence of time served,
recognizing that Shartzer was “almost at the low end of the [G]uideline range”
of 18 to 24 months. 2 The court then imposed a ten-year term of supervised
release. Shartzer did not object to the sentence. With regard to mental health,



       1 The record indicates that Shartzer and his wife, Jennifer Blessing, are Wiccan and
were married by a “priestess” in California so he is unsure as to whether he is legally married.
       2 The district court noted that Shartzer had already served 17 months in prison at the

time of the sentencing hearing.
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                                   No. 16-50985
the district court imposed a condition requiring Shartzer to undergo an initial
mental health evaluation with any additional treatment conditioned upon a
request for modification by the probation officer. Shartzer filed this appeal.
                                  II.   Discussion
      On appeal, Shartzer challenges the ten-year term of supervised release
and the three special conditions of supervised release imposed by the district
court. We address each issue in turn.
      A. Supervised Release
      Shartzer contends that the district court plainly erred by calculating his
term of supervised release under the Guidelines as five years to life and by
imposing a term of ten years. Shartzer concedes that his claim is reviewed for
plain error for failure to object below. See United States v. Segura, 747 F.3d
323, 327 (5th Cir. 2014). “There are four requirements that must be satisfied
to justify reversal under our plain error analysis: (1) there must be an error or
deviation from an established legal rule; (2) the error must be clear or obvious
and not subject to reasonable dispute; (3) the error affected the defendant’s
substantial rights; and (4) if the first three requirements are satisfied, the
court of appeals retains the discretion to correct the error and will do so only
when it ‘seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.’” Id. (citing United States v. Escalante-Reyes, 689 F.3d 415, 419
(5th Cir. 2012) (en banc) (alteration in original) (citation omitted)). This court
may affirm the sentence imposed by the district court on any ground supported
by the record. United States v. Castaneda-Lozoya, 812 F.3d 457, 460 (5th Cir.
2016) (citing United States v. Jackson, 453 F.3d 302, 308 n.11 (5th Cir. 2006)).
      The Government concedes that the correct term of supervised release
under the Guidelines is five years. Here, although the PSR set forth the correct
range of five years, the district court recited the incorrect range of five years to
life at sentencing and in its statement of reasons. The Government further
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concedes that based on this court’s precedent, the district court committed
error and that the error was clear and obvious. See United States v. Brown,
826 F.3d 835, 839 (5th Cir. 2016) (noting that Government conceded clear or
obvious error where the district court sentenced Brown to ten years of
supervised release for his failure to register conviction although the correct
range was five years); United States v. Putnam, 806 F.3d 853, 855–57 (5th Cir.
2015) (vacating and remanding, on plain error review, Putnam’s fifteen-year
term of supervised release for failure to register where the district court
incorrectly calculated the term of supervised release as five years to life);
Segura, 747 F.3d at 330 (determining that failure to register is not a sex offense
and that the Guidelines range for supervised release for that offense is five
years). Thus, because he has shown clear or obvious error, the next question
is whether Shartzer has shown that the error affected his substantial rights to
the extent that this court’s exercise of discretion to correct the error is
warranted. Segura, 747 F.3d at 327.
      To show that his substantial rights were affected, a defendant is typically
required “to show that the error ‘affected the outcome of the district court
proceedings.’” Brown, 826 F.3d at 838 (quoting United States v. Mudekunye,
646 F.3d 281, 289 (5th Cir. 2011)). He can do this by showing “a reasonable
probability that, but for the district court’s misapplication of the Guidelines,
he would have received a lesser sentence.” Id. at 838–39. “[A] defendant has
shown a reasonable probability that he would have received a lesser sentence
when (1) the district court mistakenly calculated the wrong Guidelines range,
(2) the incorrect range is significantly higher than the true Guidelines range,
and (3) the defendant is sentenced within the incorrect range.” Id. at 839; see
United States v. Martinez-Rodriguez, 821 F.3d 659, 664 (5th Cir. 2016) (stating
that a defendant’s substantial rights are affected if he can show “the


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                                  No. 16-50985
application of an incorrect, higher Guidelines range and the sentence he
received thereunder”).
      Here, the district court cited the incorrect Guidelines range of five years
to life, rather than five years. The court then sentenced Shartzer to ten years
of supervised release, double the correct Guidelines range. On these facts, we
conclude that Shartzer’s substantial rights were affected by the error. Brown,
826 F.3d at 839.
      We now turn to the final prong of the plain error analysis to determine
whether exercising our discretion to correct the error is warranted under this
circuit’s applicable precedent.     Segura, 747 F.3d at 327.         We do not
automatically reverse on the grounds that a plain error affects substantial
rights. United States v. Torres, 856 F.3d 1095, 1099 (5th Cir. 2017). Rather,
to correct the error, we must determine that “the error seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.” Puckett v.
United States, 556 U.S. 129, 135 (2009) (internal quotation marks omitted).
We have explained that “the rule of forfeiture should bend slightly if necessary
to prevent a grave injustice.” Escalante-Reyes, 689 F.3d at 423. We do not
conclude that the fourth prong is “satisfied simply because the ‘plainly’
erroneous sentencing [G]uideline range yields a longer sentence than the range
. . . we perceive as correct.” Torres, 856 F.3d 1099. Accordingly, we will only
exercise our discretion to correct plain errors “in those circumstances in which
a miscarriage of justice would otherwise result.” Id.
      Additionally, this court has acknowledged that it typically declines to
correct sentencing errors involving recidivism. Martinez-Rodriguez, 821 F.3d
at 666 (“Further, we have declined to exercise our discretion to notice
sentencing errors under the fourth prong when these types of facts are
involved—e.g., recidivistic behavior.” (emphasis in original)).


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       Here, we note that the district court, in imposing Shartzer’s supervised
release term, stated that it had considered the sentencing factors under 18
U.S.C. § 3553(a), including Shartzer’s criminal history. The district court
noted Shartzer’s recidivistic tendencies in light of his previous 2008 “refus[al]
to register as a sex offender.”         The district court expressed concern that
Shartzer “has had very unstable employment,” currently has a young child,
and has exhibited “a pattern of immaturity and lack of judgment.” Presumably
this would include Shartzer’s decision to carry a false driver’s license and flee
from law enforcement prior to being apprehended for the current offense which
he committed while on parole for the 2003 aggravated sexual assault
conviction. Although the district court cited an incorrect Guidelines range of
five years to life, it also noted that it was not required to adhere to the
Guidelines recommendations and outright rejected Shartzer’s explicit request
for a five-year term of supervised release.           Moreover, the ten-year term of
supervised release is well within the statutory term of five years to life. See 18
U.S.C. § 3583(k). 3 These factors all cut against a determination that Shartzer
would likely have received a lesser sentence absent the district court’s
misapplication of the Guidelines range. See Brown, 826 F.3d 838–39.
       Additionally, this court’s recent precedent in Brown weighs in favor of
our declining to correct the sentencing error. In that case, we were presented
with a similar set of facts to the ones at hand. Id. at 837–38. There the
defendant pleaded guilty to failure to register as a sex offender. Id. at 838. As
happened here, the district court calculated his Guidelines range for
supervised release as five years to life and sentenced him to ten years of



       3As the Government points out, this court has on several occasions “refrained from
fourth-prong correction of a supervised release term falling within statutory confines.” See
United States v. Brown, 826 F.3d 835, 841 (5th Cir. 2016); United States v. Segura, 747 F.3d
323, 331 (5th Cir. 2014); United States v. Diaz, 313 F. App’x 735, 737 (5th Cir. 2009).
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supervision. Id. On appeal, the Government conceded clear or obvious error
in connection with the term of supervision.       Id. at 838–39.     This court
determined that the ten-year term was significantly higher than the correct
range and that the defendant had been sentenced within the incorrect range.
Id. at 840.    Regarding whether Brown would have received an above-
Guidelines sentence absent any error, we found that the record showed that
the district court intended leniency during sentencing because the court
believed the defendant’s reasons for failing to register and sentenced him to a
below-Guidelines sentence of imprisonment.       Id.   We concluded that the
defendant had shown that the ten-year term of supervision affected his
substantial rights. Id. However, we declined to exercise our discretion to
correct the error based on the defendant’s extensive criminal history, also
noting that the district court had expressed concern over the defendant’s
unsatisfactory living arrangements and unsettled life. Id. at 841.
      Although Shartzer appears to take the position that his criminal history
is not extensive, we disagree with this assessment. As the PSR reflects, in
addition to the very serious 2003 conviction for aggravated sexual assault
against his eight-year-old sister, Shartzer has a juvenile adjudication for
criminal mischief in 2001, an adult conviction in 2008 for public lewdness, and
another 2008 conviction in Texas for failure to register.         Moreover, he
committed the instant offense while on parole.         Further, when he was
apprehended for the current offense, he showed a false driver’s license to
authorities, fled on foot, and had to be captured by law enforcement prior to
his arrest. As the district court noted, Shartzer’s actions show a consistent
pattern of lack of sound judgment and support a conclusion similar to the one
we reached in Brown wherein we declined to correct the error, noting the
concern over the defendant’s criminal patterns and history and unsettled life.
Additionally, as in Brown, the record here reflects that the district court took
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                                       No. 16-50985
issue with Shartzer’s current intended living arrangements. The district court
indicated at sentencing that Shartzer’s intentions to live with his grandmother
caused him concern due to the large number of dogs living at her property, a
circumstance that the district court deemed to be potentially dangerous to both
the probation officer and Shartzer’s two-year-old child.
       For these reasons, and in light of our analysis of this case under Brown,
we decline to correct the district court’s sentencing error. See Puckett, 556 U.S.
at 135 (declining to correct sentencing errors that do not “seriously affect[] the
fairness, integrity or public reputation of judicial proceedings”). 4
       B. Special Conditions
       Shartzer contends that the written judgment should be amended to
remove the conditions of supervised release that were not announced at
sentencing.     In particular, he notes that at sentencing, the district court
sustained his objection to a special condition requiring that he participate in a
sex offender or mental health treatment program. Instead, the district court
agreed at sentencing to impose a condition requiring an initial mental health
evaluation with any additional treatment conditioned upon a request for
modification by the probation officer. Shartzer complains on appeal that the
written judgment contains special conditions requiring sex offender, mental




       4 Defendant-Appellant argues that his position is similar to that of the defendant in
Putnam and thus this court should correct the sentencing error as it did in that case. 806
F.3d at 856–57. We disagree. There, the district court erroneously calculated the supervised
release Guidelines range by mistakenly concluding that the defendant’s failure to register
offense was a sex offense. Id. at 855. No such mistake was committed in the instant case,
but rather, the district court appears to have merely cited the statutory range in lieu of the
Guidelines range. Further, we observed in Putnam that the defendant had an extremely
minimal criminal history consisting of only one prior offense, not involving contact. Id. at
856. As we have thoroughly explained here, Shartzer’s recidivism in failing to register,
multiple other criminal offenses, and the circumstances under which he was apprehended for
the current offense, are certainly not minimal in this regard.
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                                     No. 16-50985
health, and cognitive behavioral treatment, as deemed necessary by the
probation officer.
        After Shartzer filed his opening brief in this court, the Government filed
an unopposed expedited motion to modify supervised release in the district
court requesting that the three special conditions at issue be deleted from the
written judgment. The district court granted the motion and ordered that the
clerk    generate    an    amended     judgment     reflecting    the   modifications.
Accordingly, because Shartzer has received the relief he requested, his appeal
of this issue is moot. See United States v. Miller, 343 F. App’x 973, 973–74 (5th
Cir. 2009) (determining that the defendant’s challenge to a condition of
supervised release was moot after the district court granted the Government’s
motion to modify the judgment to reflect the changes sought by the defendant).
                                   III.   Conclusion
         For the foregoing reasons, we affirm the term of supervised release and
dismiss as moot Shartzer’s appeal of the supervised release conditions.




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