                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0328n.06

                                             No. 10-1451

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                       FILED
                                                                                  Mar 23, 2012
UNITED STATES,                                                )
                                                              )             LEONARD GREEN, Clerk
        Plaintiff-Appellee,                                   )
                                                              )       ON APPEAL FROM THE
                v.                                            )      UNITED STATES DISTRICT
                                                              )      COURT FOR THE WESTERN
MICHAEL WHITFIELD,                                            )       DISTRICT OF MICHIGAN
                                                              )
        Defendant-Appellant.                                  )
                                                              )
                                                              )

BEFORE: GILMAN, ROGERS, and STRANCH, Circuit Judges.

        ROGERS, Circuit Judge. Criminal defendant Michael Whitfield, who was convicted of

being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1), appeals the imposition of a

curfew as a special condition of his supervised released. He argues for the first time on appeal that

the district court did not provide a rationale for imposing the curfew, and that a curfew is not related

to his prior criminal history or the district court’s purported aim of protecting the public. As one

“tool” to limit Whitfield’s opportunities for recidivism and to protect the public, however, the curfew

is a reasonable condition on Whitfield’s supervised release, and does not amount to plain error.

        Following a 911 call, Kalamazoo police officers approached Whitfiled at the Interfaith

apartment complex in Kalamazoo, Michigan at approximately 3 a.m., and chased Whitfield on foot

when he fled. When the officers caught him, he had a 9 mm semiautomatic handgun tucked in his



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waistband and a loaded magazine in his right front pants pocket. Whitfield had been paroled only

two weeks earlier, after serving seven and a half years in jail for gross negligence causing a

miscarriage. R. 44, Sentencing Tr. at 33.

        Whitfield was tried and convicted of being a felon in possession of a firearm, in violation of

18 U.S.C. § 922(g)(1). R. 1, Indictment. The district court sentenced Whitfield to 120 months

imprisonment, followed by 3 years of supervised release, as well as a $2,500 fine and $100 special-

assessment fee. After evaluating the Section 3553(a) factors, the district court justified Whitfield’s

120-month sentence by describing Whitfield’s long criminal history, which culminated in the death

of unborn twins after he fled from police officers and crashed into a vehicle with a pregnant woman

inside. R. 44, Sentencing Tr. at 32-33. The district court found that 120 months was “an appropriate

sentence, even a necessary sentence, to achieve deterrence with respect to Mr. Whitfield and public

safety.” Id. at 31.

        The district court also imposed a curfew as a condition of Whitfield’s supervised release.

Under the terms of the curfew, “on weekdays he [is to] be in his residence by 10 p.m. and on

weekends [Friday, Saturday, Sunday] by 11 p.m., . . . until 6 a.m.[,] unless approved in advance by

the probation officer.” Id. at 40. When imposing the curfew, the court noted that “I don’t [impose

a curfew] very often, particularly for a person who will be around 40 years old by the time of release,

but, again, I think it’s an important element and tool to promote public safety in the case of Mr.

Whitfield.” Id. at 40-41. Neither the Government’s nor Whitfield’s sentencing memorandum

addressed the need for a curfew. Appellant Br. at 5; See also R.30, Sentencing Memorandum by

USA; R. 31, Sentencing Memorandum by Whitfield.                 The Presentencing Report, which

recommended the statutory maximum sentence of 120 months, was also silent on this matter.


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        After discussing the sentence and the special condition, the district court asked the

government and defense counsel if they had any “legal objections” to the sentence. R.44, Sentencing

Tr. at 41. To this, defense counsel replied: “None. General.” Id.

        On appeal, Whitfield argues that the district court abused its discretion when it imposed a

curfew upon Whitfield as a special condition of his supervised release. Imposition of the curfew,

however, was not plain error.

        Plain-error review applies because Whitfield did not clearly articulate to the district court his

objection to the curfew. United States v. Kingsley, 241 F.3d 828, 835 (6th Cir. 2001). In response

to the district court’s inquiry as to whether either party had “legal objections” to the sentence,

defense counsel vaguely replied, “None. General.” R. 44, Sentencing Tr. at 41. This response was

of such a “high-degree of generality” that the district court was unable to respond to or note the

objection, See United States v. Simmons, 587 F.3d 348, 357 (6th Cir. 2009), and thus we will review

the curfew under the heightened plain-error standard. Kingsley, 241 F.3d at 835.

         To demonstrate plain error, a defendant must show: (1) an error; (2) that was “obvious or

clear”; (3) that “affected defendant’s substantial rights”; and (4) that “seriously affected the fairness,

integrity or public reputation of the judicial proceedings.” United States v. Koeberlein, 161 F.3d 946,

949 (6th Cir. 1998) (citations omitted). In this case there was no error, and in any case no error that

affected defendant’s substantial rights or seriously affected the fairness of the proceedings.

        The district court did not commit a procedural error at sentencing. The curfew imposed was

procedurally proper because the district court stated its rationale for imposing this special condition

in open court. See United States v. Carter, 463 F.3d 526, 529 (6th Cir. 2006); Kingsley, 241 F.3d

at 836 (citing 18 U.S.C. § 3553(c)). During sentencing, the district court stated that the curfew is


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“an important element and tool to promote public safety in the case of Mr. Whitfield.” R.44,

Sentencing Tr. at 40-41. By mentioning “the case of Mr. Whitfield,” the district court effectively

referred to its lengthy discussion of Whitfield’s criminal history, id. at 31-32, 35, 37, 39, which

supported the district court’s concern for public safety, and more explanation than this brief rationale

was not required.

       The brevity of the rationale provided at sentencing also did not affect Whitfield’s substantial

rights and did not affect the fairness or integrity of the judicial proceedings. Although the district

only briefly discussed its rationale for imposing the curfew, the district court repeatedly expressed

its concern for public safety throughout the sentencing hearing, id. at 31, 39, 41, in light of

Whitfield’s extensive criminal record and history of recidivism. Id. at 32, 37. With these concerns,

it was reasonable for the district court to impose a curfew in an effort to hinder Whitfield’s

opportunities to participate in further criminal activity, aiding his own rehabilitation and enhancing

public safety. A district court’s failure to explain its reasons for imposing a special condition

amounts to harmless error if the reasons are clear from the record, Carter, 463 F.3d at 529 n.2, and

“the subject special condition is related to the dual major purposes of probation, namely

rehabilitation of the offender and enhancement of public safety.” United States v. Brogdon, 503 F.3d

555, 564 (6th Cir. 2007); see also United States v. Berridge, 74 F.3d 113, 119 (6th Cir. 1996).

Because the brief rationale provided sufficient reasoning for the curfew, Whitfield’s substantial

rights were not affected.

       There was no plain error with respect to Whitfield’s substantive challenge to the curfew

because there was no error—the condition is reasonable. The district court carefully considered and

weighed the relevant § 3553(a) factors as incorporated in 18 U.S.C. § 3583(c). The relevant factors


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include the nature and circumstances of the offense; Whitfield’s history and characteristics; the need

to provide adequate deterrence of future criminal conduct; the need to protect the public; the need

to provide for Whitfield’s rehabilitation; recognition of the applicable sentencing range; and

consideration of any pertinent policy statements by the Sentencing Commission. 18 U.S.C. §

3583(c); 18 U.S.C. § 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5). To the extent that the

district court did not discuss the need to avoid unwarranted sentencing disparities among defendants

with similar records, 18 U.S.C. § 3553(a)(6), this omission did not sufficiently undermine the

substantive reasonableness of the curfew under plain-error review. There was also no need to

provide restitution to victims because there were none for this particular offense. 18 U.S.C. §

3553(a)(7).

        As a preliminary matter, the district court discussed Whitfield’s sentencing range, based upon

the applicable category of the offense committed and his applicable category as a defendant, and

recognized that the sentencing range was limited by the statutory maximum. R. 44, Sentencing Tr.

at 9; 18 U.S.C. § 3553(a)(4).

        The factors considered by the district court were reasonably related to the imposition of the

curfew. First, the curfew is reasonably related to the “nature and circumstances of the offense”

because the underlying conviction, as well as at least one other of Whitfield’s felonies, occurred at

night. 18 U.S.C. § 3553(a)(1). In this instance, the police arrested him at 3 a.m., brandishing a gun

with an obliterated serial number and frightening the residents of an apartment complex. R.46,

Testimony of Wolbrink at 5; R.44, Sentencing Tr. at 35. In Kingsley, we held that a prohibition on

operating all motor vehicles was reasonable, even though the underlying offense was for being a

felon in possession of firearms, because “the vehicle’s involvement . . . materially contributed to [the


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offense’s] overall nature.” 241 F.3d at 838. Similarly, the fact that Whitfield’s offense occurred at

night contributed to its “overall nature”; for instance, it is arguably easier to brandish a weapon and

threaten others with it during the middle of the night than in broad daylight.

       Second, the curfew is also reasonably related to “the history and characteristics of the

defendant.” See 18 U.S.C. § 3553(a)(1). Considering Whitfield’s recidivism, R. 44, Sentencing Tr.

at 37, and the fact that the events for the underlying conviction occurred just two weeks into his

parole, id. at 33, it is understandable that the district court wanted to impose a condition in an

attempt to limit any further criminal misconduct. It was also reasonable for the district court to

consider Whitfield’s long criminal history, including six juvenile convictions and three felonies as

an adult, id. at 32, when determining that a curfew would be necessary to protect the public. 18

U.S.C. § 3553(a)(2)(C).

       Though the district court did not explicitly relate Whitfield’s curfew to the need to provide

adequate deterrence of future criminal conduct and to provide for Whitfield’s rehabilitation, the

district court considered these factors when determining the totality of Whitfield’s sentence, which

included the supervised release and any related special conditions. During sentencing, the district

court noted the “need to provide rehabilitation” to Whitfield, “and the need to provide deterrence,

both generally to . . . the public who might be inclined to similar forms of misconduct but also to the

person in front of the Court.” R. 44, Sentencing Tr. at 30-31. In light of these concerns, the district

court could assume that a curfew that restricts Whitifield’s activities to the daytime could limit

Whitfield’s opportunities for recidivism, thus aiding his rehabilitation and protecting the public. In

addition, a curfew could help deter others from brandishing a firearm in a threatening manner.




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       Finally, the curfew is reasonable and consistent with the pertinent policy statement in

U.S.S.G. § 5D1.3(e)(5). See 18 U.S.C. § 3553(a)(5). In this statement, the Sentencing Commission

suggests that a curfew may be imposed “if the court concludes that restricting the defendant to his

place of residence during evening and nighttime hours is necessary to protect the public.” U.S.S.G.

§ 5D1.3(e)(5). As discussed above, the district court imposed the curfew largely because Whitfield’s

extensive criminal history and “lack of penitent” behavior created a concern for the public. R.44,

Sentencing Tr. at 40-41. Therefore, the curfew in this case is consistent with the Sentencing

Commission’s policy.

       Other circuits have found curfews to be reasonable. In United States v. Musso, 643 F.3d 566,

571 (7th Cir. 2011), the Seventh Circuit held that a curfew was reasonable after Musso was

convicted of possessing child pornography because the condition was aimed at “preventing contact

offenses.” In United States v. Asalati, 615 F.3d 1001, 1008 (8th Cir. 2010), the Eighth Circuit held

that “the nature and extent of Asalati’s prior crimes . . . demonstrate a continued and escalating

inability to operate within the confines of the law” and justified the imposition of a curfew.

       Our decision in United States v. Ritter, 118 F.3d 502, 504 (6th Cir. 1997), also indicates that

a special condition should not unnecessarily deprive a defendant of his liberty. The curfew in this

case involved no greater deprivation of liberty than is reasonably necessary to protect the public and

encourage Whitfield’s rehabilitation. When imposing the sentence, the district court specified that

Whitfield’s curfew could be modified if “approved in advance by the probation officer.” R. 44,

Sentencing Tr. at 40. Thus, if Whitfield has a legitimate reason to be out at night, such as working

an overnight shift, the condition is lenient enough to allow for modifications. In Kingsley, this court

held that the prohibition on operating a motor vehicle was reasonable in part because Kingsley could


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apply to the district court for a modification if he were able to prove sufficient rehabilitation or that

“the absolute motorist prohibition somehow render[ed] his participation in the court-ordered

treatment programs impossible.” 241 F.3d at 839; 18 U.S.C. § 3563(c). Similarly, the opportunity

to modify the curfew prevents the curfew from unnecessarily depriving Whitfield of his liberty.

        For the foregoing reasons, we affirm the district court’s imposition of a curfew during

Whitfield’s supervised release.




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