               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 15a0614n.06

                                          No. 15-5090                                 FILED
                                                                                Aug 31, 2015
                          UNITED STATES COURT OF APPEALS                    DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                        )
                                                 )
        Plaintiff-Appellee,                      )         ON APPEAL FROM THE
                                                 )         UNITED STATES DISTRICT
v.                                               )         COURT FOR THE WESTERN
                                                 )         DISTRICT OF KENTUCKY
RICKY VOUGHN HUNDLEY,                            )
                                                 )
                                                                   OPINION
        Defendant-Appellant.                     )
                                                 )


Before: GUY, MOORE, and KETHLEDGE, Circuit Judges.

       KAREN NELSON MOORE, Circuit Judge. In 2005, Ricky Hundley pleaded guilty to

attempted bank robbery, possession of a firearm during and in relation to a crime of violence,

possession of an unregistered short barreled shotgun, and possession of a firearm by a convicted

felon. He was sentenced to 147 months of imprisonment and five years of supervised release.

Shortly after he began his term of supervised release, the U.S. Probation Office requested that he

undergo sex offender treatment, a request that Hundley opposed. At a hearing before the district

court, the government decided to modify its request, asking that Hundley undertake a sex-

offender assessment, rather than treatment.     The district court granted this request.    After

reviewing our decisions in United States v. Carter, 463 F.3d 526 (6th Cir. 2006), and United

States v. Thomas, 212 F. App’x 483 (6th Cir. 2007), we hold that the district court abused its
No. 15-5090, United States v. Hundley


discretion in arriving at this conclusion.    Accordingly, we REVERSE the district court’s

judgment and VACATE the special condition imposed upon Hundley.

                                      I. BACKGROUND

        On December 8, 2004, a federal grand jury returned an indictment against Hundley,

charging him with attempted bank robbery, possession of a firearm during and in relation to a

crime of violence, possession of an unregistered short barreled shotgun, and being a felon in

possession of a firearm. R. 14 (Indictment at 1–3) (Page ID #25–27). Hundley’s indictment

listed two predicate offenses for his felon-in-possession charge:        a 1978 conviction for

“knowingly receiving stolen property over $100” in violation of Kentucky law, and a 1992

conviction for “aggravated criminal sexual abuse” in violation of Illinois law. Id. at 3 (Page ID

#27).

        Hundley pleaded guilty to these charges pursuant to a plea agreement, see R. 29 (Rep. &

Rec. at 1) (Page ID #66), and was sentenced to 147 months of imprisonment and five years of

supervised release, see R. 34 (Judgment at 3–4) (Page ID #81–82). As part of Hundley’s

supervised release, the district court imposed several standard conditions of supervision, and a

number of additional conditions, such as requiring Hundley to participate in a drug treatment

program. See, e.g., id. at 4–5 (Page ID #82–83). None of these conditions dealt with or referred

to Hundley’s prior conviction for sexual abuse.

        Shortly after Hundley began supervised release, the U.S. Probation Office asked if (1) he

would agree to pay for and submit to “Polygraph, Computer Voice Stress Analysis, or other

similar device to obtain information necessary for [his] supervision, case monitoring, and


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No. 15-5090, United States v. Hundley


treatment,” (2) if he would “participate in a sex offender counseling program approved by the

U.S. Probation Office,” and (3) if he would agree to “have no contact with the victim” of his

sexual abuse offense. R. 47 (Pet. at 1) (Page ID #106). Hundley refused to accede to these

conditions, prompting a hearing before the district court.

       At this hearing, the government notified the district court that it was no longer seeking

treatment for Hundley, but only a “sex offender assessment.” R. 56 (Hr’g Tr. at 2) (Page ID

#146). When asked by the court what this assessment would involve, the government stated it

was “not 100 percent sure, honestly.” Id. at 6 (Page ID #150); see also id. (“At this time,

[neither] the United States nor probation is fully clear exactly what that assessment would

entail.”). In response, the court indicated that it “would prefer to go ahead and adjourn this

hearing and reconvene it once [more] information’s available,” a sentiment to which the

government initially concurred. Id. at 7 (Page ID #151). Yet, before the district court could act

further, the government reported that it “was just informed that the assessment would likely take

about two hours and would cost approximately $100, and it would entail questioning.” Id. at 8

(Page ID #152). After learning this information, the court decided to impose the assessment,

describing it as a “baby step,” id. at 11 (Page ID #155), and noting that it “would hate not to have

a two-hour assessment conducted and then have some kind of tragedy befall on our community,”

id. at 12 (Page ID #156). In a subsequent order, the district court found “that the requested

condition reasonably relates to the history and characteristics of the defendant as required in 18

U.S.C. 3553(a)(1) and involves no greater deprivation of liberty or property than is reasonable to

obtain a determination as to whether the defendant is in need of sex offender treatment and/or


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No. 15-5090, United States v. Hundley


additional conditions.” R. 52 (Dist. Ct. Order at 1) (Page ID #132). Hundley has timely

appealed, and the district court’s order was stayed pending the disposition of this appeal. R. 59

(Dist. Ct. Order at 1) (Page ID #171).

                                         II. DISCUSSION

A. Standard of Review

       We review for abuse of discretion the district court’s decision to impose a supervised-

release condition. United States v. Carter, 463 F.3d 526, 528 (6th Cir. 2007). “An abuse of

discretion occurs when we are left with the ‘definite and firm conviction that the [district] court

. . . committed a clear error of judgment in the conclusion it reached upon a weighing of the

relevant factors’ or ‘where it improperly applies the law or uses an erroneous legal standard.’”

United States v. Haywood, 280 F.3d 715, 720 (6th Cir. 2002) (quoting Huey v. Stine, 230 F.3d

226, 228 (6th Cir. 2000)).

B. Analysis

       We review the imposition of a special condition of supervised release along two

dimensions: procedural and substantive. Carter, 463 F.3d at 528–29. As we stated in Carter,

from a procedural perspective, the district court must “state in open court the reasons for its

imposition of the particular sentence, including its rationale for mandating special conditions of

supervised release.” Id. (internal quotation marks omitted). We believe that the district court did

so here, and, in any event, Hundley has not raised a procedural challenge.

       Hundley instead challenges the district court’s decision from a substantive perspective.

On a substantive level, “[a] sentencing court may impose a non-mandatory condition of


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No. 15-5090, United States v. Hundley


supervised release only if it meets three requirements.” Id. at 529 (footnote omitted). Those

requirements are laid out in 18 U.S.C. § 3583(d). First, the condition must be “reasonably

related to the factors set forth in [18 U.S.C.] section 3553(a)(1), (a)(2)(B), (a)(2)(C), and

(a)(2)(D).”1 18 U.S.C. § 3583(d)(1). Second, the condition must involve “no greater deprivation

of liberty than is reasonably necessary for the purposes set forth in [18 U.S.C.] section

3553(a)(2)(B), (a)(2)(C), and (a)(2)(D).” 18 U.S.C. § 3583(d)(2). And third, the condition must

be “consistent with any pertinent policy statements issued by the Sentencing Commission

pursuant to 28 U.S.C. 994(a).” 18 U.S.C. § 3583(d)(3). A condition “must satisfy all three

requirements.” Carter, 463 F.3d at 529.

       The district court abused its discretion in requiring that Hundley undergo a sex-offender

assessment.     As we held in our decisions in Carter and Thomas, this condition does not

reasonably relate to the various sentencing factors outlined in 18 U.S.C. § 3583(d)(1). First, with



       1
           18 U.S.C. § 3553(a)(1) and 18 U.S.C. § 3553(a)(2) read as follows:

       (a) Factors to be considered in imposing a sentence.—The court shall impose a
       sentence sufficient, but not greater than necessary, to comply with the purposes
       set forth in paragraph (2) of this subsection. The court, in determining the
       particular sentence to be imposed, shall consider—
               (1) the nature and circumstances of the offense and the history and
               characteristics of the defendant;
               (2) the need for the sentence imposed—
                       (A) to reflect the seriousness of the offense, to promote respect for
                       the law, and to provide just punishment for the offense;
                       (B) to afford adequate deterrence to criminal conduct;
                       (C) to protect the public from further crimes of the defendant; and
                       (D) to provide the defendant with needed educational or vocational
                       training, medical care, or other correctional treatment in the most
                       effective manner.

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No. 15-5090, United States v. Hundley


respect to the “nature and circumstances of the offense,” 18 U.S.C. § 3553(a)(1), it is clear that

the charges to which Hundley pleaded guilty—attempted bank robbery, felon in possession of a

firearm, possession of an unregistered short barreled shotgun, and possession of a firearm during

and in relation to a crime of violence—have “nothing to do with sex.” Carter, 463 F.3d at 530;

see also United States v. Scott, 270 F.3d 632, 636 (8th Cir. 2001) (holding that sex-offender

conditions “bear no reasonable relationship” to armed bank robbery).

       Second, the condition is not reasonably related to Hundley’s “history and characteristics.”

18 U.S.C. § 3553(a)(1). The facts here are nearly identical to those in Carter and in Thomas:

Carter involved a sex offense committed in 1988, seventeen years before the imposition of the

sex-offender treatment condition, 463 F.3d at 532, and Thomas involved a sex offense committed

in 1986, nineteen years before the imposition of the sex-offender assessment condition, 212 F.

App’x at 484–85. In Carter, we reviewed decisions from our sister circuits, before stating that

“[w]e need not . . . decide precisely how much time must elapse before a sex offense becomes

too remote in time to be reasonably related to a sex-offender condition, as the instant gap”—

seventeen years—“fits comfortably within the cases.” 463 F.3d at 532. This reasoning governs

the instant case. The time difference here is in fact even more attenuated: Hundley committed

his sex offense in 1992, and the district court imposed the sex-offender condition in 2015—a

more than twenty-year gap.

       Finally, we address whether the imposed condition “afford[s] adequate deterrence to

criminal conduct,” 18 U.S.C. § 3353(a)(2)(B), whether the condition “protect[s] the public from

further crimes of the defendant,” 18 U.S.C. § 3353(a)(2)(C), and whether the condition


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No. 15-5090, United States v. Hundley


“provide[s] the defendant with needed educational or vocational training, medical care, or other

correctional treatment in the most effective manner,” 18 U.S.C. § 3353(a)(2)(D).

       We do not believe that the sex-offender assessment will deter future criminal conduct. In

Carter, we quoted approvingly from the Eighth Circuit’s decision in Scott. See 463 F.3d at 531

(“The government presented no evidence that [the defendant] has a propensity to commit any

future sexual offenses, or that [he] has repeated this behavior in any way since his 1986

conviction. Therefore, the special conditions seem unlikely to serve the goals of deterrence or

public safety, since the behavior on which the special conditions are based, though highly

reprehensible, has ceased.” (quoting Scott, 270 F.3d at 636)). This reasoning guides our analysis

in this case. Hundley “is not required by Illinois law, Kentucky law or federal law to register as

a sex offender.” R. 56 (Hr’g Tr. at 4) (Page ID #148). There have been no allegations of other

sex-related criminal offenses committed by Hundley. Id. at 13 (Page ID #157). Thus, as in

Scott, “the behavior on which the special conditions are based, though highly reprehensible, has

ceased.” 270 F.3d at 636; see also United States v. T.M., 330 F.3d 1235, 1240 (9th Cir. 2003)

(“Supervised release conditions predicated upon twenty-year-old incidents, without more, do not

promote the goals of public protection and deterrence.”).

       We employ this same analysis in deciding whether the condition “protect[s] the public

from further crimes of the defendant,” 18 U.S.C. § 3353(a)(2)(C), and whether the condition

“provide[s] the defendant with needed educational or vocational training, medical care, or other

correctional treatment in the most effective manner,” 18 U.S.C. § 3353(a)(2)(D). As we have

outlined, the remote nature of a sex-related offense cannot, standing alone, justify a district


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No. 15-5090, United States v. Hundley


court’s decision to impose a sex-offender condition because of a supposed danger to the public.

Moreover, there is insufficient justification for Hundley to receive treatment or training, given

the attenuated nature of his conduct.

       The government concedes that the district court abused its discretion in this case. See

Appellee Br. at 13 (“In summary, the record does not support the grounds the district court cited

to impose the sex-offender assessment on Hundley.”). It nonetheless requests that we remand

this case for further proceedings, so that the record may be “supplemented with information to

explain the sex-offender assessment process” in order to “assess what deprivation of Hundley’s

liberty might result.” Id. In making this argument, the government relies in part on our decision

to remand in Carter. Id. at 14.

       We reject the government’s contentions, for several reasons. First, the government’s

argument appears to be directed towards the second requirement in 18 U.S.C. § 3583(d)—i.e.,

that the condition imposed involve “no greater deprivation of liberty than is reasonably necessary

for the purposes set forth in [18 U.S.C.] section 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D).” But we

have already noted that any imposed condition must comply with all three requirements of

§ 3583. Carter, 463 F.3d at 529. And we have held that the condition at issue does not comply

with § 3583(d)(1)—that the condition be “reasonably related” to a set of various sentencing

factors. That means that we need not delve into the “deprivation of liberty” factor.

       Second, a remand would essentially excuse the government for its remarkable lack of

preparedness. The government had multiple opportunities to describe the nature of the program

at issue. It could have done so at Hundley’s sentencing—it did not. It could have done so in its


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No. 15-5090, United States v. Hundley


initial discussions with Hundley—it did not. Most inexcusably, it could have done so at the

hearing that the district court convened for the express purpose of determining whether the sex-

offender assessment was appropriate—it did not.

       Third, the government’s reliance on Carter is inapt. In Carter, we vacated the special

condition after determining that the district court abused its discretion by imposing this condition

based on Carter’s 1988 sex offense. 463 F.3d at 533. We then remanded the case to the district

court “to determine whether the nature and circumstances of [Carter’s] 2004 stalking offense”—

an offense that the district court did not consider on the first pass—“justify reimposition of the

special condition.” Id (emphasis added). In other words, on a set of nearly identical facts, we

vacated the special condition in Carter, deciding to remand only in light of an offense that the

district court had not considered (and which does not apply here). We made this point clear in

Thomas, where we stated that “[t]here is one fact in Carter not present here”—Carter’s stalking

conviction. 212 F. App’x at 487 n.1; see also id. (“The panel therefore remanded the matter [in

Carter] to the district court to determine if the 2004 conviction would justify the imposition of

sex-offender treatment.”).

       Thomas, in fact, provides a clear path for our decision in this case. The government

moved for a sex-offender assessment in Thomas on the basis of a single sex-offense conviction,

committed almost two decades prior. Id. at 484–85. Relying on Carter, we reversed the

decision of the district court and vacated the special condition—without remanding for additional

fact-finding. We do the same here. After reviewing the relevant facts and circumstances, we

hold that the district court abused its discretion in imposing a sex-offender assessment against


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No. 15-5090, United States v. Hundley


Hundley on the basis of a single offense committed by Hundley in 1992. This condition does not

reasonably relate to the various sentencing factors referenced in 18 U.S.C. § 3583(d)(1), making

it unnecessary to assess whether the condition satisfies § 3583(d)(2) or § 3583(d)(3). We vacate

the sex-offender assessment condition on Hundley’s supervised release.

                                     III. CONCLUSION

       For the reasons stated above, we REVERSE the district court’s judgment and VACATE

the special condition imposed upon Hundley.




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