           Case: 13-10838    Date Filed: 12/12/2013   Page: 1 of 6


                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-10838
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 5:05-cr-00046-SDM-TBS-1


UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus


KYLE E. MCCLAMMA,

                                                          Defendant-Appellant.

                      ________________________

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

                            (December 12, 2013)

Before PRYOR, MARTIN, and JORDAN, Circuit Judges.

PER CURIAM:
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      Kyle E. McClamma appeals the district court’s denial of his motion for

termination of his life term of supervised release. See 18 U.S.C. § 3583(e)(1). Mr.

McClamma argues that the district court failed to properly consider the factors set

forth in 18 U.S.C. § 3553(a), as required by § 3583(e)(1), and assigned improper

weight to his failed polygraph exams and the opinion of the probation officer.

      Mr. McClamma also challenges Special Condition No. 3 of the terms of his

supervised release on the grounds that his similar pre-trial restriction against

having contact with minors excluded his daughter, there was no notice that the

exclusion would not be applicable to his terms of supervised release, and the

restriction was unwarranted given the low risk he presented of committing a hands-

on offense. He further objects to the requirement that he attend and pay for sex

offender treatment and the restriction against his internet use as being unjustly

burdensome and punitive.

      We review the denial of a motion to modify supervised release, in this case

to terminate supervised release, for an abuse of discretion. See United States v.

Cunningham, 607 F.3d 1264, 1266 (11th Cir. 2010) (reviewing a motion for

revocation of supervised release, pursuant to 18 U.S.C. § 3583(e)(3), for an abuse

of discretion). In relevant part, § 3583(e)(1) permits a district court to terminate a

term of supervised release after the completion of one year of the term if, after

considering specified factors set forth in § 3553(a), the court determines that such


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action is warranted by the defendant’s conduct and is in the interest of justice. 18

U.S.C. § 3583(e)(1).    The Supreme Court has explained that the purpose of

supervised release “is to improve the odds of a successful transition from the

prison to liberty.” Johnson v. United States, 529 U.S. 694, 708-09 (2000). By

requiring courts to consider §§ 3553(a)(1), (a)(2)(B)–(D), and (a)(4)–(7), Congress

has indicated that the history and characteristics of the defendant, the nature of the

offense, deterrence, public protection, training and education, the applicable

guideline range for the offense, and avoidance of an unwarranted sentence

disparity with similarly situated defendants are all relevant to the determination

whether to modify a term of supervised release. See 18 U.S.C. § 3583(e)(1).

      Here, in denying Mr. McClamma’s motion both at the hearing and in a

written order, the district court indicated that it had considered the entire record,

expressly referenced the § 3553(a) factors, emphasized the need to protect the

community from sex offenders like Mr. McClamma, and concluded that his

behavior indicated that he still posed a threat to others. The court was particularly

concerned with the short length of time Mr. McClamma had been on supervised

release, his aggressive and adversarial behavior throughout the process contesting

his supervised release, and his negative polygraph test results. Although Mr.

McClamma argues that the court did not properly consider all of the relevant

evidence, the court stated that it considered the record evidence, and we find


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nothing in the statute that requires the district court to give any particular weight to

any of the § 3553(a) factors.       Similarly, because the court was permitted to

consider the characteristics of the defendant and deterrence, see 18 U.S.C.§§

3553(a)(1), (a)(2)(B), we cannot say that it abused its discretion in considering Mr.

McClamma’s failed polygraph tests in reaching its ultimate conclusion.

      For the first time on appeal, Mr. McClamma also challenges as substantively

unreasonable three of the conditions of his supervised release, including the

prohibition on direct contact with minors under the age of 18 without the written

approval of his probation officer, the requirement that he attend sex offender

treatment at his own expense and a restriction against internet use without prior

authorization from the probation office. Although we hold Mr. McClamma’s pro

se pleadings to a less stringent standard and construe them liberally, we cannot

review these claims. See Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir. 2003)

      First, Mr. McClamma did not raise these arguments before the district court

in his motion for early termination of supervised release and thus, the district court

has had no opportunity to rule on these claims in this proceeding. See Access Now,

Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004) (holding that

arguments raised for the first time on appeal need not be considered). Although

these claims might be reviewable if brought pursuant to a motion to modify the




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conditions of supervised release, under 18 U.S.C. § 3583(e)(2), 1 that is not the

motion filed by Mr. McClamma in this proceeding. Nor is there any indication in

the record that he addressed or requested modification of these conditions of his

supervised release in the district court proceedings. 2

       Second, to the extent that Mr. McClamma’s claims are a direct challenge to

the district court’s sentencing order from 2006 that imposed these conditions of

supervised release, his appeal is untimely. Under the Federal Rules of Appellate

Procedure, a defendant’s notice of appeal must be filed in the district court within

14 days of the entry of judgment. See Fed. R. App. P. 4(b). Upon a finding of

excusable neglect or good cause, the district court may extend the time to file a

notice of appeal for an additional period of up to 30 days. See Fed. R. App. P.

4(b)(4). Although the timeliness requirements of Rule 4(b) are not jurisdictional,

they assure relief to a party that properly raises them. See United States v. Lopez,

562 F.3d 1309, 1313-14 (11th Cir. 2009). As Mr. McClamma seeks to challenge


       1
           This statutory provision provides that a court may

                 extend a term of supervised release if less than the maximum
                 authorized term was previously imposed, and may 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 the 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. (Emphasis added).
       2
          We note that the record indicates that Mr. McClamma has challenged the condition
related to his contact with minors in a separate counseled 28 U.S.C. § 2255 proceeding.

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the terms of his supervised release more than six years since his sentence was

imposed in 2006, his claims are untimely.

      Accordingly, we dismiss Mr. McClamma’s claims challenging the

conditions of his supervised release and affirm the district court’s denial of his

motion for early termination of his supervised release.

      AFFIRMED.




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