               Case: 15-11921     Date Filed: 10/14/2015   Page: 1 of 11


                                                               [DO NOT PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS

                             FOR THE ELEVENTH CIRCUIT
                               ________________________

                                    No. 15-11921
                                Non-Argument Calendar
                              ________________________

                    D.C. Docket No. 3:05-cr-00114-HLA-MCR-1



UNITED STATES OF AMERICA,

                                                                    Plaintiff-Appellee,

                                        versus

JOHN J. TULIP,
a.k.a. John J. Tulip, III,

                                                                Defendant-Appellant.

                              ________________________

                     Appeal from the United States District Court
                         for the Middle District of Florida
                           ________________________

                                  (October 14, 2015)

Before HULL, ROSENBAUM, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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      Defendant John Tulip appeals the district court’s modification of his

supervised release conditions to include participation in a mental health program

specializing in sex offender treatment. Defendant argues on appeal that the district

court abused its discretion in adding this supervised release condition because it

did not consider whether Defendant’s participation in sex offender treatment would

improve the odds of his successful transition back into community life or make

him less of a risk to the public. After careful review, we affirm.

I.    BACKGROUND

      A.     Original Criminal Proceedings and Sentencing

      In April 2006, Defendant pled guilty to inducing a minor to engage in

sexually explicit conduct to produce child pornography and transporting child

pornography in foreign commerce, in violation of 18 U.S.C. §§ 2251(a) and

2252(a)(1), respectively. These convictions stemmed from Defendant having

convinced a German mother (through the internet, a telephone call, and one visit to

the United States) to allow her ten-year old son to come live with Defendant in

Florida based on Defendant’s suggestion that it would be in the child’s best interest

to get an education in the United States. Sadly for the boy, Defendant was actually

interested in sexually exploiting him. In fact, after the boy began living with

Defendant, the latter either enticed or coerced him to pose nude in a sexually




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explicit way while Defendant took photographs. Defendant then sent these

photographs via the internet to a computer in Germany.

      The district court sentenced Defendant to 135 months’ imprisonment—the

low end of his applicable guideline—followed by three years’ supervised release.

In addition to imposing the standard conditions of supervised release, the court also

imposed several special conditions, including that Defendant participate in a

mental health program as directed by the probation officer and that Defendant not

be allowed computer or internet access without approval from the probation

officer. Defendant did not appeal his conviction or sentence.

      B.     Motions to Modify Terms and Conditions of Supervised Release

      In January 2013, while still incarcerated, Defendant filed a pro se motion to

modify the terms and conditions of supervised release. He asked the district court

to delete the condition prohibiting the use of a computer or accessing the internet

without approval from the probation officer. He argued that such restriction was

no longer necessary to protect the victim of his crimes or the public because he had

been rehabilitated, as evidenced by his exceptionally good behavior while in

prison, and had completed training to become a successful stock day trader. He

further explained that he would need internet access with minimal or no spyware to

be able to engage in his intended occupation as a day trader and the computer

restriction would hamper his ability to pursue that line of work. The Government


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opposed this motion, questioning why Defendant had concentrated his

rehabilitation efforts in an area that required access to computers, when Defendant

well knew his computer use would be restricted. The district court denied this

motion, and Defendant did not appeal.

      Shortly before Defendant’s release from prison, his probation officer

petitioned the district court to modify the terms and conditions of Defendant’s

supervised release to require him to participate “in a mental health program

specializing in sex offender treatment approved by the probation officer.” The

probation officer asserted that this modification was necessary because of the

nature and circumstances of the offense, Defendant’s history and characteristics,

the need to protect the public from future crimes by Defendant, and to provide

correctional treatment. Specifically, the probation officer noted that Defendant had

denied to his Bureau of Prisons’ case manager that he had committed the offense

of conviction, but rather asserted that the boy had taken the naked pictures himself

and then used Defendant’s email to send the pornographic pictures over the

internet. The probation officer further noted that, while imprisoned, Defendant had

initially expressed interest in sex offender treatment, leading to his transfer to a

lower security prison. But upon arrival at the lower security prison, Defendant

refused any treatment, stating that he had only agreed to treatment in order to get

the transfer. Additionally, while incarcerated, Defendant had befriended two


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convicted sex offenders and provided false information to his case manager in an

effort to relocate to Nevada upon his release, specifically claiming that he would

be residing with a “cousin,” when in fact that person had no familial relationship

with Defendant and never returned the probation officer’s calls about arranging for

a home inspection.

      At the hearing on the above motion for modification of the conditions of

supervised release, Defendant contested the district court’s authority to modify the

conditions of supervised release, given that Defendant had not yet committed a

supervised release violation. Further, he asserted that 18 U.S.C. § 3583 only

allowed for modification of the supervised release condition if modification was

related to the initial conditions and argued that psychosexual counseling was not

related to the court’s condition requiring mental health treatment. The

Government argued that § 3583(e)(2) allowed for modification at any time prior to

the expiration or termination of supervised release and that, at any rate,

psychosexual counseling was a provision applicable to the initial conditions

because it is a type of mental health treatment.

      The district court granted the motion and modified Defendant’s conditions

of supervised release to require him to participate “in a mental health program

specializing in sex offender treatment approved by the probation officer.” It




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concluded that such a condition was reasonably related to Defendant’s history and

characteristics, his need for treatment, and the need to protect the public from him.

II.   DISCUSSION

      In support of his position that the modification of conditions was improper,

Defendant advances on appeal a different argument than the one he made before

the district court. Specifically, he now argues that the court abused its discretion in

modifying the conditions of his supervised release to include sex offender

treatment because the court failed to consider whether such treatment was

necessary to facilitate his transition back into society, which is the primary goal of

supervised release, and there was no evidence that it would facilitate this transition.

      We generally review the district court’s decision on a motion to modify the

conditions of supervised release for abuse of discretion. See United States v.

Serrapio, 754 F.3d 1312, 1318 (11th Cir. 2014) (reviewing modification of

conditions of probation, under 18 U.S.C. § 3563, for an abuse of discretion);

United States v. Zinn, 321 F.3d 1084, 1087 (11th Cir. 2003) (noting that we review

the district court’s sentence of supervised release for abuse of discretion).

However, where a defendant raises a sentencing argument for the first time on

appeal, we review for plain error. United States v. Heath, 419 F.3d 1312, 1314

(11th Cir. 2005) (reviewing an unpreserved argument as to modification of




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supervised release for plain error); United States v. Aguillard, 217 F.3d 1319, 1320

(11th Cir. 2000).

       The plain error standard is applicable here because Defendant did not raise

in the district court the specific issue he now raises here. There is a difference

between arguing, as Defendant did before the district court, that the court lacked

the authority to modify the conditions of supervised release and arguing, as he does

now, that the court abused its discretion in imposing the particular modified

condition because it had failed to consider a particular fact or factor. Under plain

error review, we will reverse where there is “(1) an error (2) that is plain and (3)

that has affected the defendant’s substantial rights; and . . . (4) the error seriously

affects the fairness, integrity, or public reputation of judicial proceedings.” United

States v. Madden, 733 F.3d 1314, 1322 (11th Cir. 2013). “An error is not plain

unless it is contrary to explicit statutory provisions or to on-point precedent in this

Court or the Supreme Court.” United States v. Schultz, 565 F.3d 1353, 1357 (11th

Cir. 2009).

       Pursuant to § 3583, after the consideration of certain 18 U.S.C. § 3553(a)

factors, 1 a district court may


1
  The § 3553(a) factors to be considered in modifying the conditions of supervised release
include: (1) the nature and circumstances of the offense; (2) the defendant’s history and
characteristics; (3) the need to provide adequate deterrence; (4) the need to protect the public;
(5) the need to provide the defendant with educational or vocational training, medical care, or
other correctional treatment; (6) the kinds of sentence and the sentencing range established for
the defendant’s offense, (7) any pertinent policy statements; (8) the need to avoid unwarranted
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       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 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.

18 U.S.C. § 3583(e)(2). Rule 32.1 of the Federal Rules of Criminal Procedure

requires that, before modifying the conditions of supervised release, the district

court must first hold a hearing at which the individual has the right to counsel and

an opportunity to make a statement and present any mitigating information.

Fed.R.Crim.P. 32.1(c)(1).

       In imposing (or modifying) a term of supervised release, the district court

may order special conditions that: (1) are reasonably related to the nature and

circumstances of the offense, history and characteristics of the defendant, the need

for adequate deterrence, the need to protect the public, and the need to provide the

defendant with needed training, medical care, or correctional treatment in an

effective manner; (2) involve no greater deprivation of liberty than is reasonably

necessary; and (3) are consistent with any pertinent policy statements issued by the

sentencing commission. 18 U.S.C. § 3583(d)(1)-(3); see also U.S.S.G. § 5D1.3(b).

The special conditions need not be related to each applicable § 3553(a) factor;

rather, each factor is an independent consideration to be weighed. United States v.


sentence disparities; and (9) the need to provide restitution. 18 U.S.C. §§ 3553(a)(1), (a)(2)(B)-
(D), (a)(4)-(7) and 3583(e)(2).
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Bull, 214 F.3d 1275, 1278 (11th Cir. 2000). When a defendant has been convicted

of a “sex offense,” the Sentencing Commission recommends that the district court

impose as a special condition the requirement that the defendant “participate in a

program approved by the United States Probation Office for the treatment and

monitoring of sex offenders.” U.S.S.G. § 5D1.3(d)(7)(A), p.s.

      Defendant has failed to demonstrate that the district court plainly erred when

it modified his conditions of supervised release to include a mental health program

specializing in sex offender treatment. The district court is statutorily allowed to

modify the conditions of supervised release after holding a hearing as required by

Rule 32.1, considering certain § 3553(a) factors, and ensuring that the modified

conditions are consistent with the requirements applicable to all conditions of

supervised release. See 18 U.S.C. § 3583(e)(2). The district court did just that in

this case. Specifically, after a hearing, the court identified Defendant’s history and

characteristics, his need for treatment, and the public’s need to be protected from

him as the § 3553(a) factors supporting the court’s requirement that he participate

in sex offender treatment. The court also determined that such a condition was

consistent with the statutory purposes of sentencing.

      Upon review of the record in this case, we discern neither plain error nor an

abuse of discretion in the district court’s imposition of the modified condition of

supervised release. As to the former, Defendant has directed us to no on-point


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precedent from this Court or the Supreme Court and to no explicit statutory

provision that would have prohibited the district court’s decision. See Schultz, 565

F.3d at 1357. As to whether the court abused its discretion, Defendant was

convicted of a serious sex offense. He lured a child to his home, had the child get

nude, photographed the child, and then electronically transmitted those images

overseas.2 Sex offender treatment and monitoring is recommended by the

Sentencing Guidelines for such an offense. See U.S.S.G. § 5D1.3(d)(7)(A), p.s.

       Defendant’s post-conviction behavior further indicates his continuing failure

to accept responsibility for his crime and suggests little inclination on his part to

mend his ways. While incarcerated, Defendant twice declined sex offender

treatment. Then, he falsely denied that he had ever committed the sexual offense

to which he pled guilty. Also while in prison, Defendant befriended other sex

offenders. These actions, which relate to Defendant’s history and characteristics,

raise great concern about the need to protect the public from his future crimes.

Defendant’s denial of responsibility for his admitted crimes weighs greatly against

his potential rehabilitation and suggests a likelihood that he might commit further

sex crimes from which the public needs to be protected. See McKune v. Lile, 536

U.S. 24, 47 (2002) (recognizing in the context of sex-offender treatment,

“[a]cceptance of responsibility is the beginning of rehabilitation”); United States v.

2
  In addition, the record reflects that, prior to sentencing, Defendant attempted to threaten and
bribe the boy and his mother to prevent them from cooperating with authorities.
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Moran, 573 F.3d 1132, 1139 (11th Cir. 2009) (noting that sex offender treatment

could assist the defendant is avoiding similar misconduct, which would protect the

public); United States v. Mercado, 777 F.3d 532, 537-38 (1st Cir. 2015) (noting

that sex offender treatment has been linked to reduced recidivism and a condition

requiring sex offender treatment was reasonably related to rehabilitation and

protecting the public). In short, we conclude that the district court neither plainly

erred nor abused its discretion in requiring that Defendant undergo mental health

treatment that focused on treatment for sexual offenders.

III.   CONCLUSION

       For all the above reasons, the district court’s modification of Defendant’s

conditions of supervised release is AFFIRMED.




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