               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 15a0731n.06

                                       Case No. 15-5222

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                   FILED
                                                                             Nov 03, 2015
UNITED STATES OF AMERICA,                         )                      DEBORAH S. HUNT, Clerk
                                                  )
       Plaintiff-Appellee,                        )
                                                  )       ON APPEAL FROM THE UNITED
v.                                                )       STATES DISTRICT COURT FOR
                                                  )       THE EASTERN DISTRICT OF
RICHARD KELLY,                                    )       TENNESSEE
                                                  )
       Defendant-Appellant.                       )
                                                  )

BEFORE: SILER, COOK, and WHITE, Circuit Judges.

       SILER, Circuit Judge. Defendant Richard Kelly appeals his sentence of eleven months’

imprisonment and fifteen years’ supervised release for a violation of a previously imposed term

of supervised release. For the reasons stated below, we AFFIRM IN PART, VACATE IN

PART, and REMAND for resentencing.

                        FACTUAL AND PROCEDURAL BACKGROUND

       In 2011, Kelly was convicted for failing to register as a sex offender. United States v.

Kelly, 560 F. App’x 501, 502–03 (6th Cir. 2014).        Prior to sentencing, the district court

calculated a Guidelines range of thirty-three to forty-one months of imprisonment. The district

court also calculated a Guidelines range of five years to lifetime supervision after release; in

doing so, the district court applied the 2011 version of USSG § 5D1.2, which provided special

instructions for the imposition of supervised release for a “sex offense.” The district court
Case No. 15-5222, United States v. Kelly


sentenced Kelly to forty-one months of imprisonment and fifteen years of supervised release.

The court also imposed, pursuant to Local Rule 83.10(b), special conditions of supervision in

addition to the standard conditions.1 Kelly appealed his sentence, which was subsequently

affirmed as both procedurally and substantively reasonable. Kelly, 560 F. App’x at 505–06.

       Kelly then filed a motion to reduce his sentence on the basis of the United States

Sentencing Commission’s proposal to amend the application notes of USSG § 5D1.2 to clarify

that a failure to register was not a “sex offense” that triggered a Guidelines range of five years to

lifetime supervised release. The motion was denied by the district court, which noted that the

proposal did not affect the statutory range of supervised release terms for a failure to register.

The court emphasized that it had already considered the § 3553(a) factors in Kelly’s case and

determined that a fifteen-year term of supervised release was necessary to protect the public.

       In 2014, Kelly was released from prison and instructed to report to the probation office in

Greeneville, Tennessee. He did not report and remained at large until he was arrested in New

Orleans, Louisiana. While Kelly was at large, the probation office requested the revocation of

Kelly’s supervised release.

       Due to his supervised release violation, Kelly faced a custodial Guidelines range of five

to eleven months’ imprisonment and a statutory maximum of two years’ imprisonment. The

application of the 2014 version of USSG § 5D1.2 yielded a five-year term of supervised release,2

but under 18 U.S.C. § 3583(h), the district court was authorized to impose up to a lifetime term

of supervision. See 18 U.S.C. § 3583(h). The district court determined that a sentence of eleven

       1
          The district court later deleted one of those special conditions from the judgment in a
separate order.
        2
          See U.S. SENTENCING GUIDELINES MANUAL § 5D1.2 cmt. n.1 (stating that the term “sex
offense” does not encompass a failure to register); 18 U.S.C. § 3583(k) (stating that the
statutorily authorized term of supervised release for a failure to register offense cannot be less
than five years).
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Case No. 15-5222, United States v. Kelly


months’ imprisonment and fifteen years’ supervised release was sufficient but not greater than

necessary. As part of Kelly’s sentence, the court declared that “all previous special conditions”

imposed in conjunction with Kelly’s previous, 2013 sentence “shall remain in full effect.” With

respect to the term of supervised release, the court stated:

         I’m going to impose a lengthy term of supervision because to do otherwise would
         simply result in a windfall to you with respect to the term of supervised release. I
         understand [Kelly’s] argument, but the simple fact of the matter is that I imposed
         initially a 15 year term of supervised release. This case has been to the Sixth
         Circuit, the sentence has been affirmed by the Sixth Circuit, it makes no sense
         whatsoever to me to now impose upon a revocation of supervision a 5 year term
         of supervised release resulting in a significant windfall to you in that respect.

The district court also noted a clear “need to protect the public.” Kelly did not raise any

additional objections after his sentence was imposed.

                                           DISCUSSION

                  I.       The Length of Kelly’s Term of Supervised Release

         Kelly argues that the district court abused its discretion and imposed a substantively

unreasonable sentence when it considered this court’s affirmation of the district court’s previous

sentence as a factor in its consideration of Kelly’s new sentence. While Kelly acknowledges that

the district court also cited the desire to avoid giving Kelly “a windfall” from the Sentencing

Commission’s clarification of the guideline range and the “need to protect the public,” Kelly

criticizes the former as an inappropriate characterization of the situation and claims that the latter

is insufficient to justify the sentence given its lack of elaboration and emphasis by the district

court.

         “The court, in determining whether to include a term of supervised release, and . . . in

determining the length of the term and the conditions of supervised release, shall consider the

factors set forth in [18 U.S.C. §] 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6),

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Case No. 15-5222, United States v. Kelly


and (a)(7).” 18 U.S.C. § 3583(c). “A sentence may be considered substantively unreasonable

when the district court selects a sentence arbitrarily, bases the sentence on impermissible factors,

fails to consider relevant sentencing factors, or gives an unreasonable amount of weight to any

pertinent factor.” United States v. Conatser, 514 F.3d 508, 520 (6th Cir. 2008). A defendant

may challenge the substantive reasonableness of his sentence on appeal even if he did not raise

an objection during his sentencing. United States v. Herrera-Zuniga, 571 F.3d 568, 578 (6th Cir.

2009). Procedurally reasonable sentences within the calculated guidelines range are afforded a

rebuttable presumption of substantive reasonableness on appeal, Conatser, 514 F.3d at 520, and

all procedurally reasonable sentencing decisions receive the benefit of “due deference to the

district court’s conclusion that the sentence imposed is warranted by the [18 U.S.C.] § 3553(a)

factors.” United States v. Bolds, 511 F.3d 568, 581 (6th Cir. 2007) (internal quotation marks

omitted).

       There is merit to Kelly’s argument opposing any reliance by the district court on the

affirmation of the previous sentence. A desire to maintain consistency with past sentencing

decisions is not one of the § 3553(a) factors. A district court could reasonably conclude that the

weight and application of the § 3553(a) factors has not materially changed since the previous

sentencing, thereby justifying an identical sentence. But that conclusion would be conceptually

distinct from a predetermined commitment to ensure that any subsequent sentence is at least as

severe as its predecessor. The fact that the previous sentence was affirmed by this court does not

give the district court a free pass to impose an identical sentence for a later violation without

regard for the § 3553(a) factors. That is particularly true in this case, since the previous term of

supervised release was within the calculated guidelines range (thereby triggering a presumption

of reasonableness on appellate review) while this term is above the calculated guidelines range.



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Case No. 15-5222, United States v. Kelly


Therefore, one should not assume that because this court affirmed the previous sentence, it

would automatically affirm this sentence.

       Nevertheless, a review of the most recent revocation hearing transcript indicates that the

district court considered the appropriate § 3553(a) factors in the course of determining its

sentence. A significant portion of the transcript is devoted to a discussion of the nature and

circumstances of the offense, in keeping with § 3553(a)(1). The court also repeatedly alluded to

the characteristics of the defendant, specifically the defendant’s attitude toward compliance. The

court told Kelly that it was imposing the fifteen-year term of supervised release “in light of the

fact that you simply absconded, completely absconded from supervision despite clear

instructions from the probation officer to do otherwise”—a consideration which is relevant to

both aspects of § 3553(a)(1). And as Kelly has noted, the district court alluded to the need to

protect the public, in keeping with § 3553(a)(2)(C). Taken in context, the district court’s

comments about the previous sentence and the desire to avoid a “windfall” reflect a

determination that a more lenient sentence in the wake of Kelly’s willful act of defiance would

not comport with the § 3553(a) factors. The record provides adequate evidence of the district

court’s consideration of the legitimate sentencing factors, and the context of the district court’s

comments about a “windfall” do not evince an intent to ignore or supplant the § 3553(a) factors.

Therefore, the district court did not abuse its discretion by imposing a fifteen-year term of

supervised release.

                II.       Kelly’s Special Conditions of Supervised Release

       Any special conditions of supervised release must be “reasonably related to the factors

set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D).” 18 U.S.C. § 3583(d)(1).

They must also impose “no greater deprivation of liberty than is reasonably necessary for the



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Case No. 15-5222, United States v. Kelly


purposes set forth in section 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D),” and be “consistent with

any pertinent policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3583(d)(2),

(d)(3).

          Kelly challenges the special sex-offender conditions that were imposed by the district

court pursuant to Local Rule 83.10(b)(1), (b)(3), (b)(4), (b)(7), (b)(9), and (b)(10). Those

conditions require that:


          (1) The defendant shall participate in a program of sex offender mental health
          treatment at his/her own expense, as approved by the probation officer, until such
          time as he/she is released from the program by the probation officer. The
          defendant shall comply with the policies and procedures of the treatment program.
          The defendant shall waive all rights to confidentiality regarding sex offender
          mental health treatment in order to allow release of information to the United
          States Probation Officer, and to authorize open communication between the
          probation officer and the treatment providers.

          (3) The defendant shall not associate and/or be alone with children under 18 years
          of age, nor shall he/she be at any residence where children under the age of 18 are
          residing, without the prior written approval of the probation officer. In addition,
          the defendant shall not visit, frequent, or remain about any place where children
          under the age of 18 normally congregate (public parks, playgrounds, etc.) or any
          business that caters to and/or targets child customers.

          (4) The defendant shall not associate with anyone, under any circumstance, that
          he/she knows to be a sex offender, someone who engages in sexual activity with
          children under 18 years of age, or someone who condones and/or supports the
          sexual abuse/exploitation of children under 18 years of age (i.e., NAMBLA,
          BOYCHAT, Boylover Message Board), except while participating in sex offender
          mental health treatment as approved by the probation officer.

          (7) The defendant shall submit to a psychosexual assessment at his/her own
          expense, as directed by the probation officer.

          (8) The defendant shall submit to polygraph testing at his/her own expense, as
          directed by the probation officer, in order to determine if he/she is in compliance


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Case No. 15-5222, United States v. Kelly


       with the conditions of supervision, or to facilitate sex offender treatment. The
       defendant shall be truthful during polygraph evaluations.

       (10) The defendant shall submit his/her person, residence, vehicle, or any area
       over which he/she exercises control to a search conducted by a United States
       Probation Officer, at a reasonable time and in a reasonable manner, without prior
       notice or search warrant, in order to determine if the defendant is in compliance
       with the conditions of supervision. The defendant shall warn anyone with whom
       he/she resides that the premises may be subject to searches pursuant to this
       condition.

U.S. Dist. Ct. Rules E.D. Tenn. LR 83.10. Kelly argues that these “special conditions of

supervision are not reasonably related to [his] conviction for failing to register as a sex offender.”

Kelly does not challenge the procedural reasonableness of his special conditions, only their

substantive reasonableness. He does not challenge the special condition regarding alcohol testing

and treatment. His argument relies on the fact that he committed his last sex offense twenty-six

years ago and United States v. Carter, 463 F.3d 526 (6th Cir. 2006), where we invalidated a

special condition of sex-offender treatment that was imposed seventeen years after the relevant

sex offenses.

       Kelly does not argue that special conditions of release are never appropriate in a case that

does not involve a sex offense. Instead, he argues that his particular criminal history, given the

age of his relevant sex offenses, does not justify the imposition of the special conditions. The

Government does not address the substance of this argument, except insofar as it cites the

unpublished case of United States v. Cabrera-Jimenez, 545 F. App’x 385, 388–89 (6th Cir.

2013). In that case, this court upheld the imposition of special conditions on a defendant whose

most recent sex convictions were sixteen years old. See id. at 389. Cabrera-Jimenez noted that

Carter did not establish “a per se rule marking the temporal bounds” of a sex offense’s relevancy

for purposes of special conditions of release, id., cited a published opinion where Carter had


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Case No. 15-5222, United States v. Kelly


been distinguished, see id. (citing United States v. Brogdon, 503 F.3d 555, 563–65 (6th Cir.

2007)), and emphasized the fact that the defendant had committed multiple sex offenses during

his lifetime. Id. Cabrera-Jimenez concluded with a statement that “surely imposing special

conditions on a serial sex offender does not amount to plain error.” Id.

       Taken at face value, the categorical statement in Cabrera-Jimenez is far too broad. While

the presence of multiple sex offenses in a defendant’s criminal history is undoubtedly a fact that

can modify a sentencing court’s view of how remote a particular conviction must be before it

loses relevance, that fact does not give a sentencing court carte blanche to impose special

conditions. It would almost certainly be an abuse of discretion to impose special sex offender

conditions on a hypothetical seventy-year-old defendant in a tax fraud case because of two

statutory rape convictions the defendant incurred when he was eighteen and his then-girlfriend

was sixteen. Yet Cabrera-Jimenez would not leave any room for this court to vacate special sex-

offender conditions in that scenario. Furthermore, both Cabrera-Jimenez and Brogdon have

erroneously implied that the defendant in Carter had only committed one sex offense. Compare

Cabrera-Jimenez, 545 F. App’x at 389 (“Cabrera-Jimenez’s case does not involve a single sex

offense”), and Brogdon, 503 F.3d at 565 (“this case does not merely involve a single sexual

offense”), with Carter, 463 F.3d at 530–31 (noting that the defendant had at least two

convictions for sex offenses).

       Kelly committed sex offenses in 1974, 1982, and 1989. While he has other violations on

several occasions since 1989, he has not committed any additional sex offenses. The twenty-six-

year gap between his last sex offense and the present day exceeds the gaps in Carter (seventeen

years since last sex offense), Cabrera-Jimenez (sixteen years since last sex conviction), and

Brogdon (twelve years since last sex conviction) by a substantial margin. See Carter, 463 F.3d at



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Case No. 15-5222, United States v. Kelly


532; Cabrera-Jimenez, 545 F. App’x at 389; Brogdon, 503 F.3d at 565. Three of the challenged

special conditions seek to prevent Kelly’s interactions with children, see U.S. Dist. Ct. Rules

E.D. Tenn. LR 83.10(b)(3), (b)(4), (b)(9), yet Kelly’s only sex conviction involving a child

occurred over forty years ago, when Kelly was eighteen years old. Three of the remaining

conditions impose the burden of mental-health treatment, psychosexual assessments, and

polygraph testing—all at Kelly’s expense. Yet a 2010 psychological evaluation found that he

was “NOT highly probable to reoffend,” that he did not have “any . . . mental disorder that

predisposes him to engage in acts of sexual violence,” that he had benefited from past sex

offender therapy, that his risk of recidivism had declined with age, and that his volitional control

in recent years signaled a reduced risk of reoffending.

       The last condition, 83.10(b)(10), gives probation officers wide latitude to search Kelly’s

person and possessions.      This condition could conceivably be justified by Kelly’s 2010

conviction for possession of drugs and drug paraphernalia. However, 83.10(b)(10) is framed

explicitly as a condition related to sex offenses, see U.S. Dist. Ct. Rules E.D. Tenn. LR

83.10(b)(10), and nothing in Kelly’s sexual criminal history suggests a special need to conduct

warrantless searches of his person and possessions.3 The only readily apparent risk posed by

Kelly is the risk of absconding from supervision and failing to register as a sex offender in the

appropriate jurisdiction.   Neither 83.10(b)(1) nor any of the other six special sex-offender

conditions do anything to address that risk. Given the age of Kelly’s sex offenses, the lack of

facts in the record to indicate that Kelly continues to present a risk as a sexual predator, and the




       3
         Kelly has never been charged or convicted of a crime relating to child pornography.
The standard conditions of supervised release in the Eastern District of Tennessee permit a
probation officer to visit a defendant at any time and confiscate any contraband in plain sight.
U.S. Dist. Ct. Rules E.D. Tenn. LR 83.10(a)(10).
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Case No. 15-5222, United States v. Kelly


fact that failing to register is no longer considered a sex offense, it was an abuse of discretion for

the district court to impose the special sex-offender conditions of supervised release.

                                          CONCLUSION

       We AFFIRM the length of Kelly’s term of supervised release, VACATE the special sex-

offender conditions of supervised release and REMAND for resentencing.




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Case No. 15-5222, United States v. Kelly


       COOK, Circuit Judge, concurring in part and dissenting in part. I would affirm the

conditions of supervised release requiring Kelly to complete sex-offender treatment and a

psychosexual evaluation, see U.S. Dist. Ct. Rules E.D. Tenn. LR 83.10(b)(1), (b)(7), and

therefore dissent from those portions of the majority opinion vacating the conditions. At Kelly’s

initial sentencing, the district court remarked that Kelly never completed a sex-offender

treatment program. In fact, after serving a fourteen-year sentence for sexual assault, Kelly

absconded from a court-ordered treatment program in 2005. The district court therefore found

sex-offender treatment and a psychosexual evaluation “fully justified.” Kelly ignored those

conditions on supervised release, and the court reimposed them at the revocation hearing.

District courts enjoy broad discretion to impose special conditions relating to a defendant’s

criminal history, United States v. Shultz, 733 F.3d 616, 619 (6th Cir. 2013), and Kelly’s criminal

history reveals an as-yet-unfulfilled need for treatment. The district court acted within its

considerable discretion in requiring sex-offender treatment and a psychosexual evaluation.




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