     Case: 12-60370        Document: 00512270769        Page: 1   Date Filed: 06/12/2013




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

                                                                           FILED
                                                                          June 12, 2013
                                       No. 12-60370
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

CALVIN WINDLESS,

                                                   Defendant - Appellant


                    Appeal from the United States District Court
                      for the Northern District of Mississippi


Before HIGGINBOTHAM, OWEN, and GRAVES, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
      A federal district court may not rely on “bare arrest records” when
sentencing a defendant. The district court believed that it could rely on those
records when crafting conditions of supervised release. We disagree.


                                              I.
      The Sex Offender Registration and Notification Act (SORNA) established
“a comprehensive national system for the registration of [sex] offenders.”1
SORNA requires each state to maintain a statewide sex-offender registry.2 It


      1
          42 U.S.C. § 16901.
      2
          Id. §§ 16912(a), 16911(10)(A), 16925.
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also compels each sex offender to register with each state in which he works or
resides.3 A person who fails to comply with one of SORNA’s registration
requirements is, in certain circumstances, guilty of a federal criminal offense
under 18 U.S.C. § 2250.4
      Calvin Windless is a sex offender.5 In 1992, at fifteen years old, he
kidnapped a seven-year-old girl and twice forced her to perform oral sex on him.
Based on those actions, Windless was convicted of aggravated kidnapping and
two counts of aggravated criminal sexual assault. He was paroled in 1997 and,
after a brief return to prison, was released finally in 1999.
      At some point after his release, Windless moved to Minnesota. He left
Minnesota for Mississippi in 2010 and began working in Mississippi in 2011.
Windless knowingly failed to register as a sex offender in Mississippi and, soon
after indictment, pleaded guilty to violating § 2250(a). This case arises out of the
sentencing proceeding that stemmed from that conviction.
      In anticipation of Windless’s sentencing, a probation officer prepared a
Presentence Investigation Report (PSR). The PSR revealed that in 2008,
Windless was convicted for violating Minnesota’s “predatory offender”
registration requirement after failing to update (and knowingly providing false
information regarding) his address. The PSR disclosed no other convictions,
however, putting aside numerous traffic infractions.
      The PSR also noted that Windless had been arrested several times. In
1999, he was charged with criminal sexual assault by force or threat. In each of
2005, 2006, 2007, and 2008, he was charged with failure to register as a
predatory offender. During the same 2008 incident, he was also charged with
theft and driving while impaired.


      3
          Id. § 16913(a); see also United States v. Johnson, 632 F.3d 912, 915 (5th Cir. 2011).
      4
          See Johnson, 632 F.3d at 915; 18 U.S.C. § 2250.
      5
          See 42 U.S.C. § 16911(1) (defining “[s]ex offender”).

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      Several of these prior offenses were not accompanied by a description of
Windless’s alleged conduct. Regarding the 1999 arrest, the PSR read, “[a]
collateral request from the Northern District of Illinois revealed this arrest. No
further information is known about this arrest.” The PSR described the 2007
arrest by noting that “[t]his arrest was located on the defendant’s ATLAS
computerized criminal records report. No additional information could be
ascertained regarding this arrest.” And of the conduct underlying the 2008
arrest, the PSR said only that “[d]etails of this offense are unknown. The
defendant was represented by an attorney.” In sum, three of the five arrests
were included in Windless’s PSR without a description of his alleged conduct.
      Only one of the two other arrests was accompanied by a description of
conduct suggesting Windless’s guilt. The PSR provided inculpatory details
surrounding Windless’s 2005 charge for failure to register. It explained that
while Windless was stopped for a traffic violation, officers discovered that he was
a sex offender from Illinois. “Officers then arrested [Windless] and charged him
with Failure to Register. [He] was later provided with additional information on
where and how to register in Minnesota and the charges were not pursued.”
      The fifth and final arrest was accompanied by an exculpatory description
of Windless’s conduct. Regarding his 2006 arrest, the PSR explained that “police
ran a criminal history check [on Windless] and found [he] was a sex offender
from Illinois. [Windless] was arrested. Upon further investigation, it was
discovered [that he] had registered at his current address in Minnesota and the
case was closed as unfounded.”
      The district court expressly referenced Windless’s arrests when explaining
its sentencing decision. After discussing his convictions, the court noted:
      [T]here are a number of other arrests. Not convictions. I want to
      make that very clear. But there is an arrest that’s in your
      presentence report in 1999, criminal sexual assault by force or
      threat, a failure to register charge in . . . 2005, another charge in
      2006, a charge in 2007, and a charge in 2008.


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Windless contemporaneously objected to the district court’s reliance on these
arrests. The district court replied:
        And, certainly, the Court understands that I must not consider an
        arrest in fashioning a sentence, because he is just as likely to be
        innocent as guilty of that because there was no disposition of it, and,
        therefore, it would be like looking into a crystal ball to see what the
        outcome would have been.
        But under these circumstances and because we’re not looking at a
        sentence but we’re looking at the special conditions, are they
        warranted under the circumstances? I feel compelled to look at the
        entire criminal history of this defendant, and looking at that
        history, including the arrest, I think these conditions are not only
        reasonable, but they’re necessary.
The court sentenced Windless to thirty months of imprisonment and ten years
of supervised release. On appeal, Windless challenges only the “special
conditions” of that supervision.
        The district court imposed two such conditions. Specifically, it ordered
that:
        1.    The defendant shall participate in a mental health treatment
              program . . . which may include polygraph examinations,
              mental health treatment, and/or a specifically designed
              program to address sex offender treatment, as directed by the
              probation officer, until such time as the defendant is released
              from the program by the probation officer.
        2.    The defendant shall have no direct or indirect contact with
              any children under the age of 18, unless accompanied and
              supervised by an adult, who has been approved in advance by
              the probation officer. The defendant shall immediately report
              any unauthorized contact with children to the probation
              officer.
Windless acknowledges that the Guidelines recommend that “[i]f the instant
offense of conviction is a sex offense,” the conditions of release should include a
requirement that the defendant “participate in a program approved by the
United States Probation Office for the treatment and monitoring of sex



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                                         No. 12-60370

offenders.”6 But he contends that failure to register is not a “sex offense” and, in
any event, that the conditions of his release are substantively unreasonable.
Most importantly, Windless argues that the district court erred by relying on
bare arrest records at sentencing.


                                               II.
       We will reverse a district court’s sentencing judgment if and only if the
district court abused its discretion.7 A district court abuses its sentencing
discretion when it makes a significant procedural error,8 orders a substantively
unreasonable sentence,9 or imposes sentence in a manner inconsistent with a
defendant’s right to due process.10


                                               III.
                                                A.
       Due process requires “that sentencing facts . . . be established by a
preponderance of the evidence.”11 Accordingly, a district court may not rely on




       6
           U.S.S.G. § 5D1.3(d)(7)(A).
       7
           Gall v. United States, 552 U.S. 38, 51 (2007).
       8
           United States v. Rodriguez, 558 F.3d 408, 411–12 (5th Cir. 2009).
       9
           Id. at 411–12.
       10
          See United States v. Johnson, 648 F.3d 273, 277–78 (5th Cir. 2011); cf. Pepper v.
United States, 131 S. Ct. 1229, 1240 n.8 (2011) (“[S]entencing courts’ discretion . . . is subject
to constitutional constraints.”). The Supreme Court has instructed that when reviewing a
sentence, we “must first ensure that the district court made no significant procedural errors.”
Gall, 552 U.S. at 51. But it has never held that we must address a procedural sentencing
question whose answer will have no outcome on the case. Cf. Pearson v. Callahan, 555 U.S.
223, 236 (2009) (recognizing appellate court discretion to “decid[e] which of the two prongs of
the qualified immunity analysis should be addressed first.”).
       11
            Johnson, 648 F.3d at 277.

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a “bare arrest record” at sentencing.12 An arrest record is “bare” when it refers
to the “to the mere fact of an arrest—i.e.[,] the date, charge, jurisdiction and
disposition—without corresponding information about the underlying facts or
circumstances regarding the defendant’s conduct that led to the arrest.”13 By
contrast, an arrest record is not bare when it is accompanied by “a factual
recitation of the defendant’s conduct that gave rise to a prior unadjudicated
arrest” and “that factual recitation has an adequate evidentiary basis with
sufficient indicia of reliability.”14 “If the factual recitation lacks sufficient indicia
of reliability, then it is error for the district court to consider it at
sentencing—regardless of whether the defendant objects or offers rebuttal
evidence.”15
      Three of Windless’s arrest records were bare. The first stated that “[a]
collateral request from the Northern District of Illinois revealed this arrest. No
further information is known about this arrest.” The second added that “[t]his
arrest was located on the defendant’s ATLAS computerized criminal records
report. No additional information could be ascertained regarding this arrest.”
And the third admitted that “[d]etails of this offense are unknown. The
defendant was represented by an attorney.”
      The district court relied on these arrest records. It explained that it was
“sentencing [Windless] at the higher end of the sentencing guideline range
because [it noted] that [he had] a previous conviction for failure to register as
well as other offenses and charges on—arrests on failure to register.” The
prosecutor understood “the Court [to be] taking into consideration not just the
[kidnapping and sexual assault] offense in ‘92, but [also Windless’s] entire


      12
           United States v. Harris, 702 F.3d 226, 229 (5th Cir. 2012).
      13
           Id.
      14
           Id. at 231.
      15
           Id.

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criminal history . . . which involves the . . . criminal sexual assault [arrest] . . .
and the other arrests for failure to register.” In response to that statement,
Windless objected to consideration of his arrest records. Rather than disavow its
reliance on those records, the court attempted to justify considering them. It
explained, “the Court understands that I must not consider an arrest in
fashioning a sentence, . . . [b]ut under these circumstances and because we’re not
looking at a sentence but we’re looking at the special conditions, are they
warranted under the circumstances? I feel compelled to look at the entire
criminal history of this defendant . . . including the arrest.” Although the district
court said “arrest” instead of “arrests,” nothing suggests that the district court
was relying only on the non-bare, 2005 arrest—which the court never identified
as uniquely worthy of consideration. We therefore conclude that the district
court relied on three bare arrest records.16
       This reliance was error. The district court attempted to justify its reliance
by distinguishing between “special conditions” of release and a defendant’s
“sentence.” But that distinction is illusory: supervised release and its conditions
are part of a defendant’s sentence.17 Regardless, the same due process concerns
that bar imposing a “sentence” based on bare arrest records apply to supervised
release—which works a “substantial restriction of freedom.”18 In short, whether
ordering a term of imprisonment or conditions of supervised release, a district
court may not rely on bare arrest records.19


       16
         Cf. Johnson, 548 F.3d at 279 (“[W]e cannot definitively rule out that the arrests were
considered in sentencing.”); id. at 281 (Smith, J., dissenting) (noting that the sentencing judge
expressly claimed that “the sentence is not based on the arrests”).
       17
        See 18 U.S.C. § 3583(a) (authorizing supervised release “as a part of the sentence”);
United States v. Gonzalez, 250 F.3d 923, 928 (5th Cir. 2001); see also Gall, 552 U.S. at 48.
       18
            Gall, 552 U.S. at 48 (internal quotation marks omitted) (citation omitted).
       19
         We have acknowledged that “[i]t might be true” that “‘there may be situations where
the number of prior arrests, and/or the similarity of prior charges to the offense of conviction,
becomes so overwhelming and suggestive of actual guilt that they become exceedingly difficult

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       This error was not harmless. Consider this statement from the district
court, with the three bare arrest records (and the exculpatory arrest record)
struck through: “there is an arrest that’s in your presentence report in 1999,
criminal sexual assault by force or threat, a failure to register charge in . . .
2005, another charge in 2006, a charge in 2007, and a charge in 2008.” As
Windless’s criminal history appears quite different when his improperly
considered arrests are ignored, we cannot be “[]certain as to whether the district
court would have imposed the same sentence absent the arrests.”20 We therefore
hold that the district court erred by relying on bare arrest records when
determining Windless’s conditions of supervised release.


                                              B.
       We also hold that the “no direct or indirect contact” condition was flawed
by substantive error. A district court has discretion to craft conditions of
supervised release, even if the Guidelines do not recommend those conditions.21
The district court abused its discretion here, however, because this condition was
substantively unreasonable.
       In the district court, Windless argued that this restriction on “direct or
indirect contact” swept so broadly that it would effectively prohibit him from
going to the grocery store unaccompanied. The district court did not express



to ignore.’” Johnson, 648 F.3d at 278 (citation omitted). This case does not present such a
situation, cf. United States v. Jones, 489 F.3d 679 (5th Cir. 2007), and the government does not
contend otherwise.
       20
            Johnson, 648 F.3d at 278.
       21
          See United States v. Weatherton, 567 F.3d 149, 152–53 (5th Cir. 2009). Windless
argues that the district court procedurally erred by treating his failure to register as a “sex
offense.” But even for sex offenses, the Guidelines do not recommend this condition of
supervised release. See U.S.S.G. § 5D1.3(d)(7). Accordingly, because the district court did not
impose this condition because of the Guidelines, any “sex offense” procedural error was
harmless with respect to this condition. See United States v. Delgado-Martinez, 564 F.3d 750,
753 (5th Cir. 2009) (recognizing that procedural error may be harmless).

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                                         No. 12-60370

disagreement with that understanding. Nor can we. A restriction of this breadth
works a “greater deprivation of liberty than is reasonably necessary”22 where, as
here, a defendant is being sentenced for failing to register as a sex offender; the
offense that required him to register is not of recent origin; and since that
offense, he has committed no other crimes against minors,23 and the evidence
suggests that he has failed to register only twice before. Although it does not
affect our holding, we further note that here, the defendant committed the
underlying sex offense when he was only fifteen years old, and that this
condition would prevent him from ever seeing his minor children without the
supervision of someone approved by a probation officer.
       Circumstances may, of course, permit a sentencing court to limit an
offender’s access to places where children are likely to be unsupervised or poorly
supervised. It may be reasonable to bar an offender from initiating unsupervised
or poorly supervised contact with others’ children and reasonable to require him
to report contact that children initiate. But to forbid all “indirect” contact works
a serious restriction on liberty, making a trip to the grocery store or a place of
worship a trip that may end in imprisonment via revocation sentence. We trust
that the district court will carefully address these considerations on remand—if
it decides that, with bare arrest records out of mind, such conditions are
appropriate at all.24




       22
            Weatherton, 567 F.3d at 153 (internal quotation marks omitted) (citation omitted).
       23
          We mean this colloquially and express no opinion concerning whether failure to
register is “an offense . . . perpetrated against a minor.” U.S.S.G. § 5D1.2 cmt. 1.
       24
           See United States v. Goodwin, 12-2921, 2013 WL 1891302 (7th Cir. May 8, 2013) (“In
assessing the appropriateness of special conditions, it . . . is useful to consider the
rehabilitative objectives that supervised release serves. Placing unduly harsh conditions on
supervised release would, instead of facilitating an offender’s transition back into the everyday
life of the community, be a significant barrier to a full reentry into society.” (internal quotation
marks omitted) (citation omitted) (alteration marks removed)).

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                                      ***
      We VACATE imposition of the mental-health treatment condition and
REMAND for resentencing. We REVERSE imposition of the “no direct or
indirect contact” condition, which the district court may not impose (as currently
phrased) on remand.




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