     Case: 12-60537      Document: 00512531100         Page: 1    Date Filed: 02/12/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit

                                                                                   FILED
                                      No. 12-60537                         February 12, 2014
                                                                              Lyle W. Cayce
UNITED STATES OF AMERICA,                                                          Clerk

                                                 Plaintiff – Appellee
v.

JAMES TRACY CUNEO,

                                                 Defendant – Appellant



                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 3:11-CR-168-1




Before SMITH, DeMOSS, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant James Tracy Cuneo pleaded guilty to failure to
register as a sex offender in violation of the Sex Offender Registration and
Notification Act (“SORNA”), 18 U.S.C. § 2250(a). The district court sentenced
Cuneo to twenty-four months of imprisonment and five years of supervised
release. As a special condition of supervised release, the court required that
Cuneo participate in a program of mental health and/or sexual offender



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 12-60537
treatment that could include polygraph examinations. Cuneo appeals the
district court’s imposition of this special condition of supervised release. We
AFFIRM the district court’s sentence.
                        FACTUAL BACKGROUND
      On September 11, 1989, Cuneo was convicted of attempted sexual
assault in Cook County, Illinois. By virtue of this conviction, Cuneo was
required to register as a sex offender but failed to do so upon moving to
Mississippi, despite multiple notices and warnings. Pursuant to an oral plea
agreement, Cuneo pleaded guilty to one count of failing to register as a sex
offender in violation of the SORNA.
      In the presentence report (PSR), the probation officer determined that
Cuneo’s total offense level was thirteen, his criminal history category was III,
and his Guideline sentencing range was eighteen to twenty-four months of
imprisonment and five years to life of supervised release. The district court
sentenced Cuneo to twenty-four months of imprisonment and five years of
supervised release. As a special condition of supervised release, the district
court ordered that Cuneo participate in (1) “a program of testing and treatment
for substance abuse” and (2) “a program of mental health treatment and/or a
specifically designed program to address sex offender treatment which may
include polygraph examinations, as directed by the probation officer, until such
time as the defendant is released from the program by the probation officer.”
Cuneo objected to the imposition of sex offender treatment as a greater than
necessary deprivation of liberty because he had not been charged with, or
convicted of, a sex offense since 1989. Cuneo further noted that the expense of
sex offender treatment could make it difficult for him to move to another
jurisdiction while on supervised release.     The district court overruled the
objection.


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                                     No. 12-60537
        Cuneo timely appealed. He challenges the district court’s imposition of
sex offender treatment as both procedurally incorrect and substantively
unreasonable.
                            STANDARD OF REVIEW
        We review the procedurally sound imposition of conditions of supervised
release for abuse of discretion. United States v. Rodriguez, 558 F.3d 408, 412
(5th Cir. 2009). However, when a defendant either fails to object at sentencing
or raises on appeal arguments different from those presented to the district
court, the court reviews the new arguments for plain error only. United States
v. Juarez, 626 F.3d 246, 253-54 (5th Cir. 2010). In order to preserve error, a
defendant must make an objection that is “sufficiently specific to alert the
district court to the nature of the alleged error and to provide an opportunity
for correction.”    United States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009)
(internal citation omitted). 1
                                    DISCUSSION
   A.       Procedural Reasonableness
        Cuneo maintains that the district court committed procedural error by
ordering the conditions of supervised release recommended for sex offenses
under § 5D1.3(d)(7) because failure to register as a sex offender is not a “sex
offense” as defined in U.S.S.G. § 5D1.2, cmt. n.1. Cuneo further contends that,
even if we determine that failure to register is a “sex offense” under the
Guidelines, the district court erred in ordering polygraph examinations as this
condition is not expressly listed among the conditions prescribed by the
Guidelines at § 5D1.3(d)(7) as applicable to sex offenses.


        1While neither Cuneo nor the government argues that plain error review applies to
Cuneo’s challenge to the procedural reasonableness of the special condition, we may make
this determination sua sponte because “no party has the power to control our standard of
review.” See United States v. Duhon, 541 F.3d 391, 396 n.2 (5th Cir. 2008) (quoting United
States v. Vontsteen, 950 F.2d 1086, 1091 (5th Cir. 1992)).
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                                  No. 12-60537
      Although Cuneo objected to the condition at sentencing, his objection was
limited to challenging the condition as a greater than necessary deprivation of
liberty based on (1) the age of his prior sex offense and (2) the difficulty of
transferring to a different jurisdiction during his supervised release given the
cost of such treatment. He did not challenge the special condition on the
grounds that the instant crime was not a sex offense or that the special
condition was more extensive than the conditions recommended by the
Guidelines for sex offenses. We therefore review Cuneo’s challenge to the
procedural reasonableness of the special condition for plain error. See Juarez,
626 F.3d at 253-54. To establish plain error, Cuneo must show an error that
is clear or obvious and affects his substantial rights. See Puckett v. United
States, 556 U.S. 129, 135 (2009). If Cuneo makes such a showing, this court
has the discretion to correct the error if it seriously affects the fairness,
integrity, or public reputation of the judicial proceedings. Id.; see also United
States v. Weatherton, 567 F.3d 149, 152 (5th Cir. 2009).
      Our court recently, in three unpublished decisions, rejected similar
challenges to the procedural reasonableness of requiring mental health and/or
sex offender treatment for defendants convicted of failing to register. See
United States v. Kroft, 535 F. App’x 422, 422 (5th Cir. 2013); United States v.
Nelson, No. 12-60894, 2013 WL 5881246, at *1 (5th Cir. Nov. 4, 2013); United
States v. Byrd, No. 12-60659, 2013 WL 6510891, at *1 (5th Cir. Dec. 13, 2013).
None of these cases resolved the question of whether failure to register is a “sex
offense,” but instead determined that regardless, “treating failure to register
as a sex offense is not plain error.” See id. The text of § 5D1.2 cmt. n.1 is not
determinative of whether the district court’s categorization of failure to




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                                        No. 12-60537
register as a sex offense was plain error. 2 This note defines a “sex offense” as
a crime under, inter alia, chapter 109B, 3 and “[t]he only offense listed in
chapter 109B is failure to register, 18 U.S.C. § 2250.”                    United States v.
Goodwin, 717 F.3d 511, 518 (7th Cir. 2013) (interpreting § 5D1.2 cmt. n.1). 4 In
light of our rulings in Kroft, Nelson, and Byrd and the circuit split, and for the
above reasons, we find that Cuneo has failed to establish plain, procedural
error.
         As elaborated on below (but relevant to our analysis of harmlessness and
any miscarriage of justice), even assuming arguendo that the district court



         2U.S.S.G. § 5D1.2, cmt. n.1 provides in full that a “‘sex offense’ means (A) an offense,
perpetrated against a minor, under (i) chapter 109A of title 18, United States Code; (ii)
chapter 109B of such title; (iii) chapter 110 of such title, not including a recordkeeping
offense; (iv) chapter 117 of such title, not including transmitting information about a minor
or filing a factual statement about an alien individual; (v) an offense under 18 U.S.C. 1201;
or (vi) an offense under 18 U.S.C. 1591; or (B) an attempt or a conspiracy to commit any
offense described in subdivisions (A)(i) through (vi) of this note.”
        3 This court in Kroft also noted that § 5D1.2, cmt. n.1 expressly excludes certain

offenses as “sex offenses” but does not explicitly exclude failure to register as a sex offender.
Kroft, 2013 WL 3492347, at *1.
        4 We recognize that our sister circuits are in disagreement as to whether failure to

register as a sex offender constitutes a “sex offense” for purposes of § 5D1.2. The Fourth and
Eleventh Circuits have both applied this Guideline to failures to register. See United States
v. Nelson, 400 F. App’x 781, 783 (4th Cir. 2010) (unpublished); United States v. Zeiders, 440
F. App’x 699, 701 (11th Cir. 2011) (unpublished). By contrast, the Second and Seventh
Circuits have found that failure to register is not a sex offense under § 5D1.2. See United
States v. Hebert, 428 F. 37, 39 (2d Cir. 2011) (unpublished); United States v. Allen, 519 F.
App’x 727, 730 (2d Cir. 2013) (unpublished); United States v. Goodwin, 731 F.3d 511, 520 (7th
Cir. 2013). The Second and Seventh Circuits assert that § 5D1.2, cmt. n.1 “defines a ‘sex
offense’ as encompassing only offenses ‘perpetrated against a minor,’” and violation of
registration requirements “plainly does not count as an offense ‘perpetrated against a
minor.’” Allen, 519 Fed. App’x at 727. Recognizing that § 5D1.2, cmt. n.1 explicitly defines
failure to register as a sex offense, the Seventh Circuit considered reading “perpetrated
against a minor” out of the Note, but was concerned that it would greatly expand the
application of § 5D1.2 as to other listed offenses. Goodwin, 717 F.3d at 519. The Seventh
Circuit instead deemed the Note’s definition of “sex offense” plainly erroneous as applied to
the failure to register. Id. at 519-20. In the context of Cuneo’s circumstances elaborated on
below, especially with no contemporaneous objection hence on plain error review, we do not
reach the question dividing courts of appeal of whether failure to register as a sex offender
constitutes a “sex offense” for purposes of § 5D1.2. See Weatherton, 567 F.3d at 152-53.
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                                       No. 12-60537
erred in classifying failure to register as a “sex offense,” and hence the special
conditions recommended at § 5D1.3(d)(7) for sex offenses did not apply, a
district court may impose conditions of release not recommended by the
Guidelines without committing procedural error. Weatherton, 567 F.3d at 152-
53. Cuneo’s circumstances justified imposition of the special condition objected
to, particularly because the condition expires after 5 years. Cf. Goodwin, 717
F.3d at 513 (considering a life term of supervised release and attendant
conditions). By that same logic, the district court was within its rights to order
polygraph examinations even if the condition was not expressly listed by the
Guidelines at § 5D1.3(d)(7) as applicable to sex offenses. 5 See Nelson, 2013 WL
5881246, at *2; Kroft, 535 F. App’x at 423; Byrd, 2013 WL 6510891, at *1 (all
upholding special conditions of supervised releases not specifically set forth in
the Guidelines as recommended for sex offenses).
   B.       Substantive Reasonableness
        Cuneo further asserts that the requirement of sex offender treatment
was substantively unreasonable because the condition did not reasonably
relate to the characteristics of his offense or criminal history. He maintains
that the condition was a greater restriction on his liberty than necessary given
the nature of the instant crime and the age of his prior sex offense conviction.
While the district court ordered “mental health treatment and/or a specifically
designed program to address sex offender treatment which may include
polygraph examinations, as directed by the probation officer,” Cuneo does not
object to mental health treatment. He objects only to the possible alternative




        5U.S.S.G. § 5D1.3(d)(7) provides that “[i]f the instant offense of conviction is a sex
offense, as defined in Application Note 1 of the Commentary to § 5D1.2 (Term of Supervised
Release)--(A) A condition requiring the defendant to participate in a program approved by
the United States Probation Office for the treatment and monitoring of sex offenders” is
appropriate. It does not mention whether sex offender treatment could include polygraphs.
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                                 No. 12-60537
of sex-offender treatment, which may include polygraphs, should his probation
officer deem it necessary.
      A district court may impose any condition of supervised release that it
deems appropriate, so long as the condition meets three requirements.
Weatherton, 567 F.3d at 153. First, “the condition must be reasonably related
to one of four factors [set forth in 18 U.S.C. § 3553(a)]: (1) the nature and
characteristics of the offense and the history and characteristics of the
defendant, (2) the deterrence of criminal conduct, (3) the protection of the
public from further crimes of the defendant, and (4) the provision of needed
educational or vocational training, medical care, or other correctional
treatment.” Id. (citing 18 U.S.C. § 3583(d)(1)). A particular restriction need
not be related to the instant crime but could instead be deemed reasonable
based on prior criminal behavior. Id. at 153-54. Second, the “condition cannot
impose any ‘greater deprivation of liberty than is reasonably necessary’ to
advance deterrence, protect the public from the defendant, and advance the
defendant’s correctional needs.” Id. at 153 (quoting 18 U.S.C. § 3583(d)(2)).
Lastly, “the condition must be consistent with the policy statements issued by
the Sentencing Commission.” Id. (quoting 18 U.S.C. § 3583(d)(3)).
      In the district court, Cuneo specifically challenged the alternative of sex
offender treatment as substantively unreasonable, and as a greater than
necessary deprivation of liberty, given that he was last convicted of a sex
offense in 1989.     Accordingly, we review his challenge to the substantive
reasonableness of that condition for abuse of discretion. See Rodriguez, 558
F.3d at 412.
      This court previously upheld the substantive reasonableness of requiring
mental health and/or sex offender treatment when applied to similarly situated
defendants in Kroft, Nelson, and Byrd. See Nelson, 2013 WL 5881246, at *2;
Kroft, 535 F. App’x at 423; Byrd, 2013 WL 6510891, at *2. Applying our three-
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                                  No. 12-60537
part review for conditions of supervised release, we likewise find that, under
the circumstances of Cuneo’s offense and history, the condition imposed was
substantively reasonable, and the district court did not abuse its discretion.
      While his last sexual assault conviction was twenty-three years ago,
Cuneo has a long record of violent offenses. Following his 1989 sexual assault
offense, Cuneo was subsequently convicted of unlawful use of a weapon,
domestic battery, theft, possession of marijuana, and felon in possession of a
firearm—the last of which occurred in 2009 after he made repeated death
threats against federal judges, agents, and police offers. See United States v.
Morales-Cruz, 712 F.3d 71, 73 (1st Cir. 2013) (upholding identical condition
where defendant convicted of failing to register had recently been convicted of
battery of an adult female). Moreover, Cuneo’s refusal to register, despite
multiple warnings from Mississippi officials, culminating in his guilty plea to
the crime, evidences a refusal to abide by the restrictions placed on sex
offenders thereby undermining efforts to combat sex-offender recidivism. See
United States v. Smith, 655 F.3d 839 (8th Cir. 2011), judgment vacated on other
grounds, 132 S. Ct. 2712 (2012), reinstated on remand, 504 F. App’x 519 (8th
Cir. 2012) (upholding identical condition imposed on defendant for failure to
register, based on his triggering 1998 statutory rape conviction and 2007
conviction for failure to register). Cuneo’s extensive criminal history (including
two convictions for violence against his ex-wife) and his repeated refusal to
register permit a rational inference that Cuneo presents a recidivism risk and
warrants rehabilitative conditions, such as mental health and/or sex offender
treatment. See, e.g. Morales-Cruz, 712 F.3d at 75 (“Given [his] manifest lack
of respect for the SORNA registration requirements, and the reasonable
inference that his refusal to comply with these requirements poses a risk of
recidivism, the district court’s imposition of sex-offender treatment was
reasonably related to [his] present offense as well as to his criminal history,
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                                       No. 12-60537
which included a recent assault on an adult female.”); United States v. King,
431 F. App’x 630, 635 (10th Cir. 2011) (unpublished) (holding that imposing
sex offender treatment on a defendant, whose sole conviction was in 2003 for
possession of child pornography, was appropriate given his history of deviant
sexual fantasies involving children and his treatment needs). Accordingly, the
special condition imposed was reasonably related to the history and
characteristics of the defendant, his rehabilitation, and the protection of the
public as required under U.S.C. § 3553(a) and 18 U.S.C. § 3583(d)(1).
       Cuneo acknowledges a long history of mental health issues, including bi-
polar disorder, anti-social personality disorder, agoraphobia disorder, paranoid
beliefs, anxiety disorder, and marijuana and alcohol dependence. We also note
that this special condition has a finite duration of five years, and, during that
time, Cuneo could move to modify the condition. See 18 U.S.C. § 3583(e)(1);
FED. R. CRIM. P. 32.1(c).
       As the cases relied upon are persuasive but not controlling, Sauseda, 596
F.3d at 282, Cuneo urges us to instead rely on the Fourth and Seventh Circuit’s
decisions in United States v. Rogers, 468 Fed. App’x 359, 361 (4th Cir. 2012)
(unpublished), and United States v. Goodwin, 717 F.3d 511, 520 (7th Cir.
2013). 6 Both are distinguishable. In Rogers, the Fourth Circuit relied on its



       6 Cuneo also cites three cases—Dougan, Carter, and T.M.—involving convictions for
non-sex crimes (though not failure to register) and several-years-old convictions for sex
crimes. In each case, the circuit court found that the district court erred by ordering special
conditions of supervised applicable to sex offenders. See United States v. Dougan, 684 F.3d
1030, 1037 (10th Cir. 2012); United States v. Carter, 463 F.3d 526, 527 (6th Cir. 2006); United
States v. T.M., 330 F.3d 1235, 1237 (9th Cir. 2003). These cases are less persuasive as the
crimes in question were not failures to register but robbery of a post office, possession of a
firearm, and conspiracy to possess and distribute marijuana, respectively. See Dougan, 684
F.3d at 1031; Carter, 463 F.3d at 527; T.M., 330 F.3d at 1237. In all three cases, the district
court ordered that the defendant undergo sexual offender treatment, rather than allowing
mental health and/or sex offender treatment. See Dougan, 684 F.3d at 1032; Carter, 463 F.3d
at 528; T.M., 330 F.3d at 1239. Furthermore, as the government notes, an equal number of
cases could be cited from this circuit and others in which similar special conditions were
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                                       No. 12-60537
finding that “there was no evidence before the district court that such an act of
violence had characterized Rogers’s offense behaviors in the many years since
he was released from incarceration” in holding the special condition imposed
was substantively unreasonable. Rogers, 468 Fed. App’x at 363. Moreover, the
district court in Rogers ordered: “The defendant shall participate in sex
offender treatment . . . and shall submit to random polygraphs.” Id. at 363. In
the instant case, the district court ordered mental health “and/or” sex offender
treatment, which could include polygraphs, at the discretion of the probation
officer. This distinction was significant to the Fourth Circuit, which noted that
the “district court failed even to order that Rogers first be professionally
evaluated” to determine if “participation in a treatment program for sexual
offenders actually comported with the needs of society or of Rogers himself.”
Rogers, 468 Fed. App’x at 363.             Notably, Cuneo has not objected to, or
challenged as error, this discretionary attribute of his special condition.
       In Goodwin, the Seventh Circuit vacated the sex offender treatment and
mental health counseling conditions because “the district court imposed these
conditions without explanation” and extended them into lifetime restrictions.
Goodwin, 731 F.3d at 525. The court then remanded the case to the district
court to reconsider the appropriateness of these lifetime conditions given
Goodwin’s offense and criminal history. Id. at 526. Here, the district court
specifically noted that, while Cuneo has not been convicted of any other


upheld for non-sex offenses. See, e.g., United States v. Ybarra, 289 F. App’x 726, 731-32 (5th
Cir. 2008) (unpublished) (upholding special condition of sex offender treatment based on past
behavior of a defendant convicted of possession of marijuana with intent to distribute, even
though defendant had never been convicted of sex offense); United States v. Moran, 573 F.3d
1132, 1134-36 (11th Cir. 2009) (upholding imposition of sex offender treatment for a
defendant convicted of felon in possession of firearm based on the defendant’s criminal
history). This variability is understandable because appropriate release conditions for
defendants with violent and sex offender criminal histories, coupled with longstanding
mental health issues, are highly individualized judgments made firsthand by sentencing
judges.
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                                No. 12-60537
sexually-related offenses since his 1989 conviction, he does have several other
convictions—including unlawful use of a weapon, domestic battery, and
violation of a protective order—sufficient to justify the imposition of these
conditions.
                               CONCLUSION
      For the above reasons, we AFFIRM the district court’s sentence.




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