After Emil Rath “pled guilty in 2014 to abusive sexual
contact with a minor who has not attained the age of twelve years in violation
of 18 U.S. Code § 2244(a)(1) and (c)”, he appealed the U.S. District Court Judge’s imposing “conditions of supervised release prohibiting [him] from
accessing `any computer that is capable of internet access’ and requiring him
to `consent to [the] installation of monitoring software on any computer to
which [he] has access.’” U.S. v. Rath, 2015 WL 3559160 (U.S.Court of Appeals for the 5th Circuit 2015).
The Court of Appeals begins its opinion by explaining how
these charges arose and by reviewing similar, earlier allegations that had been
made against Rath:
The stipulated factual basis for Rath's
guilty plea provided as follows. Rath became acquainted with the
victim and her family while stationed with the United States Army at the Fort
Polk Military Reservation in Louisiana.
On the night of the offense underlying
Rath's instant conviction, which occurred in late 2002 or early 2003, Rath was
sitting on a couch beside the victim in the living room of her family's
residence while watching a movie. The victim was seven or eight years old. Rath
was twenty-seven years old. Rath placed his hand on the victim's breast and
then placed his hand between her legs on her inner thigh. He also undid his
pants and asked the victim to touch his penis.
The pre-sentence investigation report
(PSR) indicated that Rath has multiple prior convictions for sexual offenses
involving minor victims. In
1996, Rath pled guilty in Arkansas state court to two counts of first-degree
sexual abuse and was sentenced to sixty months' probation. In 2006, Rath was convicted in Arkansas state
court of fourth-degree sexual assault and sentenced to seventy-two months'
imprisonment.
According to the PSR, Rath's 2006
conviction stemmed from allegations that in August 2005 he engaged in sexual
intercourse with a fourteen-year-old girl in Mena, Arkansas. Rath
was thirty years old. Rath had met the victim about one year prior and
cultivated a relationship by communicating with her `by phone, email, and
instant messaging via computer for some time . . . [He] developed a code for them to use so no
one else would know what they were talking about.’
Beginning in July 2005, the victim
began sneaking out of her house late at night to meet Rath alone in the
backyard while her mother was sleeping. The victim reported to investigators
that although at the second such meeting she told Rath that she did not want to
have sex with him, at a later meeting she told him that she did want to have
sex. She stated that at this later meeting Rath proceeded to remove her clothes
and pull her underwear to one side before inserting his penis into her
vagina. The PSR indicated that after initially denying these allegations
Rath admitted that he had sexual intercourse with the victim on one occasion.
U.S. v. Rath, supra.
The court then explained the process by which Rath was
sentenced:
Based on a total offense level of 31
and a criminal history category of V, and relying on the United States Sentencing Guidelines (the `Guidelines’), the PSR indicated a guideline
imprisonment range of 168 months to 210 months. Rath does not challenge these calculations on
appeal. At sentencing, the
district court indicated that, in addition to the Guidelines and the sentencing
factors contained in 18 U.S. Code § 3553, it was taking into account `the
number of people we know were abused by [Rath]. Those are just the ones we know
about, and that's at least four at my last count.’ The court sentenced Rath to a
within-guideline-range sentence of 210 months' imprisonment followed by a five-year
term of supervised release.
U.S. v. Rath, supra.
The court then points out that
Among other special conditions of
supervision, the court imposed the following two conditions related to internet
access:
5. You are to refrain from any access
to any computer that is capable of internet access.
6. You are to comply with the
requirements of the computer monitoring program as administered by the
probation officer and consent to installation of all monitoring software on any
computer to which the defendant has access; and this will be further explained
to you by your probation officer.
Counsel for Rath objected to the
conditions concerning internet access and computer monitoring on the basis that
the instant offense `did not involve anything involving a computer.’ The court overruled counsel's objection. It
then recited the following bases in its written statement of additional reasons
justifying Rath's sentence: `This defendant has two other convictions for
sexual crimes involving contact with underage females. The defendant continues
to rationalize his behavior, never fully accepting responsibility for his actions.’
U.S. v. Rath, supra.
As the Court of Appeals explains, at the sentencing hearing,
Rath’s attorney
objected to the conditions concerning
internet access and computer monitoring on the basis that the instant offense `did
not involve anything involving a computer.’ The court overruled counsel's
objection. It then recited the following bases in its written statement of
additional reasons justifying Rath's sentence: `This defendant has two other
convictions for sexual crimes involving contact with underage females. The
defendant continues to rationalize his behavior, never fully accepting responsibility
for his actions.’
U.S. v. Rath, supra. Rath then appealed. U.S. v.
Rath, supra.
The court prefaced its analysis of the arguments Rath made
on appeal by explaining that
[w]e normally review conditions of
supervised release `under a deferential abuse of discretion standard.’ In this
case, although Rath objected below to the substantive reasonableness of the
conditions he now challenges, he did not articulate an objection on procedural
grounds. Where a defendant fails to preserve a procedural objection, including
a claim `that the district court did not properly explain the sentence,’ we
review only for plain error.
U.S. v. Rath, supra.
The court then took up Rath’s challenge to the conditions
the District Court Judge attached to his supervised release. U.S. v.
Rath, supra. It began by explaining
that
`[a]lthough a district court generally
has extensive discretion in imposing conditions of supervised release, its
discretion is limited by 18 U.S. Code § 3583(d), which provides that the
district court may impose conditions of supervised release that are reasonably
related to the factors [set forth] in 18 U.S. Code § [3553(a)(1), (2)(B)-(D)].’ Section 3553(a), in relevant part, requires
the district court to consider:
(1) `the
nature and circumstances of the offense and the history and characteristics of
the defendant;’
(2) `the
need . . . to afford adequate deterrence to criminal conduct;
(3) `the need . . . to protect the public from further crimes of
the defendant;’ and
(4) `the need . . .
to provide the defendant with needed educational or vocational training,
medical care, or other correctional treatment in the most effective manner.’
We have interpreted section
3583(d) to require that a condition of supervised release must reasonably
relate `only [to] one of the four factors, not necessarily all of them.’ In
addition, `the condition cannot impose any greater deprivation of liberty than
is reasonably necessary’ to accomplish the purposes set out in 18
U.S. Code § 3553(a).
Finally, the condition must be `consistent
with any pertinent policy statements issued by the Sentencing Commission,’ some
of which are implicated here. The Commission's policy statement regarding
recommended special conditions for defendants convicted of sex offenses
includes `[a] condition limiting the use of a computer or an interactive
computer service in cases in which the defendant used such items.’
U.S. v. Rath, supra.
The coiurt then explained that
Rath challenges the internet- and
computer-related conditions on two fronts. First, he asserts that the [U.S.
District Court Judge] procedurally erred by failing to explain its reasons for
imposing them. Second, he argues that they are substantively unreasonable
because the offense underlying Rath's instant conviction did not involve use of
a computer or the internet. We address each contention in turn.
U.S. v. Rath, supra.
In a footnote, the Court of Appeals explains that Rath also
argued that the
challenged conditions are
`irreconcilably at odds’ with one another, because one forbids him to access a
computer with access to the internet while the other requires him to install
monitoring software on any computer he accesses. As an initial matter, we
reject this argument. We understand the two conditions as intended to work in
concert to ensure that Rath does not violate the prohibition on internet access;
the monitoring software thus `serves the purpose of monitoring [Rath's]
progress under supervision.’ U.S. v. Rearden, 349 F.3d 608 (U.S. Court of Appeals for the 9th Circuit 2003).
U.S. v. Rath, supra.
The court went on to explain that
[w]e `must first ensure that the
district court committed no significant procedural error.’ Rath asserts that
the district court failed to explain its reasons for imposing the special
conditions in violation of [18 U.S. Code §] 3553(c), which requires a
sentencing court to `state in open court the reasons for its imposition of the
particular sentence.’ Reviewing for plain error, we may not provide relief
unless Rath can show: `(1) error, (2) that is plain, and (3) that affects [his]
substantial rights.’ Yet even if he meets these elements, `we have discretion
to correct the forfeited error only if it “seriously affects the fairness,
integrity, or public reputation of judicial proceedings.”’ We need not
contemplate exercise of that discretion here, though, because Rath has not
demonstrated plain error affecting his substantial rights.
U.S. v. Rath, supra.
It also explained that,
[a]s an initial matter, it is not
apparent that the district court failed to comply with section 3553(c). At
Rath's sentencing hearing, the court stated that in imposing the sentence and
conditions it had considered `the factors contained in 18 U.S. Code
[section] 3553’ as well as `the number
of people we know were abused by [Rath].’ The court reinforced this
consideration in its written statement of reasons: `This defendant has two
other convictions for sexual crimes involving contact with underage females.
The defendant continues to rationalize his behavior, never fully accepting responsibility
for his actions.’ We have indicated that `little explanation is required’
where, as here, a sentencing judge imposes a within-guideline-range sentence `and
states for the record that she is doing so.’ The district court's statements,
albeit brief, arguably support a conclusion that it justified the conditions as
reasonably related to one or more of the section 3553(a) factors.
Regardless, even assuming, without
deciding, that the court plainly erred by failing to adequately state its
reasons, we have held in similar cases that such error does not affect a
defendant's substantial rights where the defendant `fails to show that an
explanation would have changed his sentence.’
`[T]he defendant must prove that the error affected the sentencing
outcome.’ Rath makes no attempt to explain how the district court's compliance
with section 3553(c) would have altered the special conditions it sought
to impose. We therefore hold that the district court did not commit reversible
procedural error.
U.S. v. Rath, supra.
Next, the Court of Appeals noted that
`[a]ssuming that the district court's
sentencing decision is procedurally sound, [we next] consider the substantive
reasonableness of the sentence imposed under an abuse-of-discretion
standard . . . tak[ing] into
account the totality of the circumstances.’ [quoting Gail v. U.S., 552 U.S. 38 (2007)]. Rath first argues that the internet-related
conditions are not reasonably related to any of the section
3553(a) factors because the offense underlying his instant conviction did
not involve use of a computer or the internet. He cites U.S. v. Tang,
718 F.3d 476 (U.S. Court of Appeals for the 5th Circuit 2013),
where we held that similar conditions were not related to the statutory factors
because `[t]here [was] no evidence that [the defendant had] ever used
the [i]nternet to commit an offense of any sort.’
U.S. v. Rath, supra (emphasis
in the original). The Court of Appeals
went to explain that
Tang
is inapposite here. By contrast to the facts of that case, although the offense
underlying Rath's instant conviction did not involve a computer, he indisputably
used internet access -- specifically, email and instant messaging -- to groom a
subsequent victim over an extended period of time in developing a relationship
that culminated in illegal sexual intercourse. Rath urges that this distinction
is of no import because internet use was not `integral’ to his commission of
that offense. We disagree.
The record demonstrates that access to
the internet played a significant role in Rath's long-term cultivation of a
relationship with that victim. We therefore conclude that the conditions
concerning internet access are reasonably related to one or more of
the section 3553(a) factors, specifically: (1) `the history and characteristics
of the defendant;’ (2) `adequate deterrence;’ (3) `protect[ing] the public from
further crimes;’ and (4) `provid[ing] the defendant with needed . . . correctional
treatment in the most effective manner.’
U.S. v. Rath, supra.
Rath then argued that the
challenged conditions are not
consistent with the Sentencing Commission's recommendation of `[a] condition
limiting the use of a computer or an interactive computer service in
cases in which the defendant used such items’ because there is no
indication that he used a computer in the instant case. Again we
disagree. The challenged conditions, while not expressly recommended in
the Commission's policy statements, are in no way inconsistent with those
statements. `A district court has discretion to craft conditions of supervised
release, even if the Guidelines do not recommend those conditions.’ (quoting U.S. v. Windless, 719 F.3d 415 (U.S.
Court of Appeals for the 5th Circuit 2013).
U.S. v. Rath, supra.
And, finally, Rath claimed the challenged conditions
constitute a greater deprivation of his
liberty than is reasonably necessary. He asserts that a total ban on internet
access with no provision of discretion for a probation officer to make
exceptions will disadvantage him at school and work and will hamper his
transition back into society. Again we disagree. The challenged conditions are
neither overbroad nor unduly restrictive. First, as we understand the conditions, Rath
may use a computer for school and work as long as that computer is not capable
of internet access.
Second, although the conditions do not
permit Rath's probation officer to make discretionary exceptions, Rath `has
prompt access to modification of [these] conditions pursuant to [section]
3583(e) and Federal Rule of Criminal Procedure 32.1(c),’ should
modification become necessary and appropriate.
Third, Rath's term of supervised
release is only five years. This
despite the Sentencing Commission's recommendation of a lifelong term of
supervised release for sex offenses. Along with several of our sister circuits, we
have considered terms more limited in duration to weigh in favor of affirmance.
In addition to these reasons, Rath
`has offered nothing more than raw speculation and conclusional statements to
support his claim’ that the conditions will hamper his transition back into
society.
U.S. v. Rath, supra.
And the court concluded its opinion by explaining that
[i]n light of Rath's criminal history,
which spans several convictions for sexual offenses involving minor victims, including
at least one in which he used the internet to lure the victim before
perpetrating the offense, we hold that the district court did not abuse its
discretion in imposing the conditions prohibiting Rath from accessing the
internet and requiring him to comply with a computer monitoring program during
his five-year term of supervised release.
U.S. v. Rath, supra.
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