     Case: 16-51034    Document: 00514218128       Page: 1   Date Filed: 10/31/2017




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

                                    No. 16-51034
                                                                             Fifth Circuit

                                                                           FILED
                                                                    October 31, 2017

UNITED STATES OF AMERICA,                                             Lyle W. Cayce
                                                                           Clerk
             Plaintiff - Appellee

v.

MICHAEL GEORGE IVERSON, also known as Michael George Byrnes, also
known as Michael Byrns, also known as Michael G. Iverson, also known as
Mike Bernard, also known as John P. Byrns, also known as Michael Barnes,
also known as J. D. Barnes, also known as Michael Belanger, also known as
Michael Byrne, also known as Mike Barnes, also known as Michael Belager,
also known as J. D. Byrns, also known as Mike Byrns,

             Defendant - Appellant



                 Appeal from the United States District Court
                      for the Western District of Texas


Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
GREGG COSTA, Circuit Judge:
      Michael Iverson pleaded guilty to failure to register as a sex offender.
He now challenges the length of his prison term and some of the conditions of
his supervised release. The principal question his appeal raises is whether the
Sentencing Guidelines’ obstruction-of-justice enhancement covers false
statements made to obtain appointed counsel. We join the majority side of a
circuit split in concluding that it does.
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                                         I.
      Iverson was required to register under the Sex Offender Registration and
Notification Act because he had been convicted of rape and kidnapping in New
York. Because he was classified as a sexually violent offender under New York
law, Iverson had to register every 90 days. Although Iverson moved to Texas
in 2013, he never registered in the state.        The authorities learned about
Iverson’s failure to register when they arrested him in Guadalupe County on a
parole violation warrant.
      Iverson was convicted of failure to register as a sex offender, and the
district court imposed a sentence of thirty-seven months, which was the low
end of the Guidelines range. That range included a two-level enhancement for
obstruction of justice.     The presentence report (PSR) recommended that
enhancement because Iverson “admitted to intentionally lying to U.S. Pretrial
Services regarding the value of his assets with intentions to make himself
appear more destitute.” That false statement, which the magistrate used to
determine eligibility for court-appointed counsel, was included in a financial
affidavit that Iverson signed under penalty of perjury. In the affidavit, Iverson
claimed the value of three vehicles he owned was $5,500, much less than the
$18,500 later listed in the PSR.
      The district court also required Iverson to serve five years of supervised
release after he finishes his prison term.        As part of that supervision, it
required that Iverson abide by a number of special conditions typically directed
at sex offenders.
                                        II.
                                        A.
      Iverson contests the obstruction enhancement on two grounds. He first
argues that making misrepresentations on a pretrial financial affidavit does
not fall within the Guidelines’ definition of obstruction of justice because it does
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                                 No. 16-51034
not interfere with the investigation or prosecution of the offense. If Iverson
loses that legal argument, he also maintains that he did not intentionally
mislead the court in seeking appointed counsel.
      The enhancement applies when “(1) the defendant willfully obstruct[s]
or impede[s], or attempt[s] to obstruct or impede, the administration of justice
with respect to the investigation, prosecution, or sentencing of the instant
offense of conviction, and (2) the obstructive conduct relate[s] to (A) the
defendant’s offense of conviction and any relevant conduct; or (B) a closely
related offense.” U.S.S.G. § 3C1.1. On its face, that language appears to
include lying to a court to obtain free counsel.      Procuring the financial
resources of a court under false pretenses interferes with the proper
administration of the criminal justice system. And that obstruction is with
respect to, and relates to—that is, it occurred in connection with—the
prosecution of Iverson’s failure-to-report offense.   The commentary to this
section also lists examples of obstruction, which include producing a “false,
altered, or counterfeit document or record during an official investigation or
judicial proceeding” and “providing materially false information to a judge or
magistrate judge.” Id. at cmt. n.4(C), (F). Lying on a financial affidavit used
by a magistrate judge to assess eligibility for appointed counsel falls within
either example.
      We have applied the enhancement to false statements made to obtain
appointed counsel, albeit in unpublished opinions only briefly addressing the
question. See United States v. Sanchez, 227 F. App’x 412, 413 (5th Cir. 2007)
(“False statements on a financial affidavit can serve as the basis for the
obstruction adjustment.”); United States v. Resendez, 1999 WL 499774, at *1
(5th Cir. June 16, 1999) (also finding no error in applying the obstruction
enhancement because the defendant submitted a false financial affidavit).
Other circuits have divided on this question. Two agree with our unpublished
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cases in applying the obstruction enhancement to false statements made to a
court in connection with obtaining appointed counsel. See United States v.
Hernandez-Ramirez, 254 F.3d 841, 842-43 (9th Cir. 2001); United States v.
Ruff, 79 F.3d 123, 125-26 (11th Cir. 1996); cf. United States v. Greig, 717 F.3d
212, 220-22 (1st Cir. 2013) (applying the enhancement to false statements
made in connection with obtaining bail).
       But the Second Circuit holds that a false statement that only has the
effect of obtaining free counsel does not qualify for the obstruction
enhancement. United States v. Khimchiachvili, 372 F.3d 75, 80, 82-83 (2d Cir.
2004). The disagreement among these circuits is over whether the defendant’s
false statements must have been intended to undermine the investigation or
prosecution of the offense. Compare id. at 80 (holding that the enhancement
only applies to conduct that is intended to affect or “interfere with the
disposition of the criminal charges against a defendant”), with Ruff, 79 F.3d at
126 (explaining that false statements made to a judge need not have an “effect
on the investigation or prosecution” and “the sole question is whether [the]
statement was material”). 1
       In concluding that a false statement to a court must be intended to
prevent or delay justice, as opposed to just being the product of wanting a free
lawyer, the Second Circuit cited its common understanding of obstruction and
a 1998 amendment to the adjustment. Khimchiachvili, 372 F.3d at 78-80. As
to the ordinary meaning of obstruction, the Second Circuit may have
overlooked a distinction between false statements made to judicial officers and
false statements to law enforcement officials that may nonetheless have an


       1Although a circuit split exists about whether the two-level obstruction enhancement
applies to false statements made to obtain appointed counsel, its practical effect may be
minimal. Even though the Second Circuit does not believe two levels should be added for this
conduct, it recognizes that a court can nonetheless consider this misconduct in its overall
determination of the appropriate sentence. Khimchiachvili, 372 F.3d at 82-83.
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effect on the proceeding. We have recognized that attempts to improperly
influence judicial proceedings more directly interfere with the administration
of justice than does similar conduct occurring in non-judicial contexts. See
United States v. Reeves, 752 F.2d 995, 999 (5th Cir. 1985) (comparing an
obstruction statute applying only to judicial proceedings, in which many acts
can be deemed “per se corrupt,” with an obstruction statute not limited to
conduct in court, which thus required a heightened showing of corrupt intent).
The commentary to the obstruction enhancement also makes this distinction,
as the Eleventh Circuit has recognized.                 See Ruff, 79 F.3d at 125-26
(underscoring “the importance of the identity of the person to whom the false
statement is provided” (quoting United States v. Mafanya, 24 F.3d 412, 415 (2d
Cir. 1994))). As noted above, the commentary lists “providing materially false
information to a judge” and producing a false document during an investigation
or judicial proceeding as examples of obstructive conduct without any need to
show the effect of that conduct. U.S.S.G. § 3C1.1 cmt. n.4(C), (F). 2 In contrast,
when it lists the example of providing false information to law enforcement, it
limits the enhancement to acts that “significantly obstructed or impeded the
official investigation or prosecution of the instant offense.” Id. at cmt. n.4(G);
see also Hernandez-Ramirez, 254 F.3d at 844 (noting that lack of candor toward
judicial officers is regarded differently than lack of candor toward law
enforcement).
       Admittedly, this distinction does less to undermine the second reason the
Second Circuit cited for concluding that the enhancement does not cover false
statements about indigence used to obtain counsel.                         Khimchiachvili
highlighted a 1998 amendment to the enhancement commentary that added



       2 The Guidelines define a “material statement” as a statement “that, if believed, would
tend to influence or affect the issue under determination.” U.S.S.G. § 3C1.1 cmt. n.6.
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“lying to a probation or pretrial services officer about defendant’s drug use” as
an example of conduct not ordinarily covered. 372 F.3d at 78-79 (quoting
U.S.S.G. § 3C1.1 cmt. n.5(E)).      Although the Second Circuit analogized
falsehoods about drug use to falsehoods in a CJA financial affidavit on the basis
that neither necessarily thwarts the prosecution of the case, id. at 79-80, the
drug situation addressed in commentary note 5(E) was a targeted Guidelines
response to end a circuit split. See U.S.S.G. app. C, amend. 582. Regardless,
when a false statement seeking appointed counsel is exposed there is a more
direct effect on the administration of justice than occurs when a defendant lies
about using drugs. The appointment of counsel affects the entirety of the
case—discovery, plea or trial, sentencing, and notice of appeal—and, among
other things, discovery of the false statement might cause delay if new counsel
needs to be engaged.
      We therefore follow the previous decisions of this court and those of the
Ninth and Eleventh Circuits in holding that lying to a judicial officer to obtain
appointed counsel qualifies as obstruction under the Guidelines.
                                       B.
      We have thus far assumed that Iverson did intend to mislead the
magistrate, but he also disputes that factual finding. So we must decide
whether the district court clearly erred in finding that Iverson lied about the
value of his vehicles. See United States v. Juarez-Duarte, 513 F.3d 204, 208
(5th Cir. 2008).
      Iverson contends that the discrepancy between his statements to pretrial
services and his statements to the probation officer merely resulted from
confusion over whether to state the value of his assets as is (he notes that the
motorcycle has a cracked block and broken-down engine) or in perfect running
condition. He also argues that although at one point he possessed title to all


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                                 No. 16-51034
three vehicles, the “ownership is not mine because I don’t have the titles in my
name at all.”
      The problem with Iverson’s claim is that the PSR asserts that he
“admitted to intentionally lying to U.S. Pretrial Services” in an attempt to
make himself appear more destitute and qualify for appointed counsel, and the
district court implicitly adopted that finding. Even if Iverson now has an
innocent explanation for his erroneous valuation, he cannot overcome the
deference we afford the district court’s contrary finding when one of the more
powerful forms of evidence—a confession—supports it.
                                       III.
      Iverson also challenges the special conditions he must follow while on
supervised release. Those five conditions are:
      [First,] [t]he defendant shall abide by all program rules,
      requirements, conditions of the sex offender treatment including
      submission for polygraph and any other testing. The defendant
      will be required to make a copayment based on the defendant’s
      ability to pay.

      Second, the defendant shall follow all other lifestyle or restrictions
      or treatment requirements imposed by the therapist and continue
      those restrictions as they pertain to avoiding risk situations
      throughout the course of supervision. This includes not residing
      or going to places where a minor or minors are known to frequent
      without prior approval of the officer.

      Third, the defendant shall reside in a residence approved in
      advance by the probation officer.

      Four[th], the defendant shall have no direct or indirect . . . contact
      with victims without prior consent of the probation officer. . . .

      [Fifth]: If required to register under the Sex Offender Registration
      Act, the defendant shall submit his person and any other property,
      house, residence, vehicle, papers, computer, or electronic
      communication, or data storage and effects to search at any time

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                                 No. 16-51034
      with or without a warrant by any law enforcement officer with
      reasonable suspicion concerning a violation of a condition of
      probation or unlawful conduct by the person and the probation
      officer in the lawful discharge of the officer’s supervision function.
      At the outset, we can readily vacate the second one as it suffers from the
same defect that existed in identical conditions we have repeatedly rejected
even on plain error review. United States v. Morin, 832 F.3d 513, 517-18 (5th
Cir. 2016); see also United States v. Huor, 852 F.3d 392, 403 (5th Cir. 2017);
United States v. Pitts, 670 F. App’x 375, 376 (5th Cir. 2016). We have done so
because allowing private therapists to set restrictions on a defendant’s
conduct, without the court having to approve those restrictions, usurps a
judge’s exclusive sentencing authority. Morin, 832 F.3d at 517-18. We again
exercise our discretion on plain error review to correct this unlawful delegation
of sentencing authority and vacate the condition.
      As to the remaining four conditions, Iverson argues that the district
court failed to explain how they are reasonably related to factors the court must
consider, which include the nature and circumstances of the offense, the
history and characteristics of the defendant, and the need to protect the public
from further crimes. 18 U.S.C. § 3583(d)(1) (referring to the factors in 18
U.S.C. § 3553(a)(1), (a)(2)(B)-(D), and (a)(4)-(7)). The government argues that
Iverson’s objection to the conditions was not preserved because it was made
“[o]n the grounds that failure to register is not a sex offense.” This argument,
however, ignores that Iverson then objected on the “additional ground” that
“these sex offender conditions are not rationally related to the offense of
conviction.” That objection was sufficient to put the district court on notice
that Iverson believed it was not complying with the statutory mandate to
connect the conditions to the particular circumstances of the case. As a result,
our review is for abuse of discretion. United States v. Salazar, 743 F.3d 445,
448-50 (5th Cir. 2014).
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      The district court did not give reasons for imposing the challenged
conditions. We can nonetheless uphold them if the justification can be inferred
from the record. United States v. Prieto, 801 F.3d 547, 550 (5th Cir. 2015);
Salazar, 743 F.3d at 451. This case fits within that “it goes without saying”
category. In 1995, Iverson and another assailant beat and raped a woman in
New York. To keep the victim from speaking to police, Iverson and the other
assailant brought her to a wooded area, gagged her, and tied her to a tree. The
victim suffered “severe post-traumatic stress disorder as well as physical
injuries from the beating.” Iverson was convicted of rape and kidnapping, and
was also charged with attempted murder. Despite undergoing sex offender
and aggression replacement programming—both in and out of custody—
Iverson was later fired from a carnival job in Louisiana after exposing himself
to the wife of a political official.
      With all this information detailed in the PSR, the district court
reasonably concluded that the four remaining special conditions (numbers 1
and 3-5) were necessary to account for the history and characteristics of the
defendant and to protect the public from additional crimes Iverson might be
inclined to commit.        Notably, the conditions—which order sex offender
treatment, prevent contact with victims, require approval of any residence, and
authorize a search upon reasonable suspicion of a probation violation or other
unlawful conduct—are not as onerous as conditions often imposed on sex
offenders. See, e.g., United States v. Miller, 665 F.3d 114, 126, 133 (5th Cir.
2011) (affirming special conditions that barred the defendant from using
computers or other electronic devices with Internet access, unless permitted
by his probation officer); United States v. Weatherton, 567 F.3d 149, 152-54 (5th
Cir. 2009) (upholding special conditions requiring the defendant to undergo
“psychosexual evaluation” and refrain from possessing sexually explicit
material). And it does not matter that the failure-to-register offense itself was
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                                 No. 16-51034
not one involving sexual conduct. We have rejected challenges to conditions
aimed at preventing further sex crimes even when imposed for a fraud offense
because the conditions can take account of a defendant’s “history and
characteristics” and the need to “protect the public from further crimes.” See
id. at 153 (citing 18 U.S.C. § 3583(d)(1)); see also United States v. Dupes, 513
F.3d 338, 343-44 (2d Cir. 2008) (upholding sex offender conditions for a
defendant sentenced for securities fraud).
      Although the better course is for a district court to explain why the
special conditions of supervised release being imposed are needed to satisfy the
statutory sentencing objectives, we find that connection can be inferred from
the record in this case.
                                    ***
      The judgement of the district court is AFFIRMED except for special
condition two, which is VACATED, and the case REMANDED for further
proceedings consistent with this opinion.




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