United States Court of Appeals
For the First Circuit
No. 08-2533
UNITED STATES OF AMERICA,
Appellee,
v.
CALVIN SEBASTIAN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Lynch, Chief Judge,
Boudin and Lipez, Circuit Judges.
Leslie W. O'Brien for the appellant.
Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, United States Attorney, was on brief for the appellee.
July 16, 2010
LYNCH, Chief Judge. Calvin Sebastian was convicted of
leading a significant cocaine drug conspiracy and sentenced to 193
months' imprisonment and ten years of supervised release. He
appeals both his sentence and certain terms of his supervised
release. Sebastian's primary argument is that the district court
erred in requiring him to attend a sex-offender treatment program
as a condition of his supervised release. He also argues the court
erred in imposing, as a condition, a requirement to abide by all
policies and procedures of such a program as directed by a
supervising officer to the extent that program would ban him from
possessing pornographic material. Sebastian finally claims the
district court should have considered the sentencing disparity
between offenses involving powder and crack cocaine. He failed to
raise either claim before the district court, and so appellate
review is for plain error. If there was any error, it was not
plain error.
I.
On October 29, 2007, Sebastian pled guilty to a
conspiracy to distribute and possess with intent to distribute
cocaine and fifty or more grams of cocaine base in violation of 21
U.S.C. § 841(a)(1). Since at least early 2006, he and others
working for him transported cocaine, crack cocaine, and OxyContin
tablets from Connecticut to Biddeford and Saco, Maine, for
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distribution. He frequently used female drug addicts in his
network.
Sebastian's presentence report ("PSR") concluded that
because of the quantity of drugs involved and Sebastian's three
previous felony drug convictions he faced a mandatory sentence of
life imprisonment under 21 U.S.C. § 841(b)(1)(A).1 By age thirty-
six, Sebastian had eight convictions, seven for drugs. Sebastian
was convicted in 1999 for sexual assault in Connecticut and was
sentenced to ten years' imprisonment, of which all but two years
were suspended. The PSR stated that no further information about
the sexual assault was known and that the probation office for the
District of Connecticut had failed to respond to a request for
further information.
The PSR recommended a term of supervised release of ten
years to life, which included the special conditions that Sebastian
register as a sex offender, participate in a sex-offender treatment
program, and be prohibited from possessing pornographic materials
if and as required by the sex-offender treatment program.
Sebastian raised no objections to the PSR's recommended supervised
release conditions and did not suggest that the court should modify
his sentence to mitigate the crack/powder cocaine disparity.
1
The PSR also stated that the statutory mandatory life
sentence also bumped his U.S. Sentencing Guidelines sentence up to
a mandatory life sentence, under U.S.S.G. § 5G1.1(c)(2).
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Because Sebastian faced a mandatory minimum life
sentence, the court could reduce that sentence only under very
limited conditions. One condition was a motion by the government
for a downward departure under 18 U.S.C. § 3553(e) because he had
provided substantial assistance to the government. The government
filed such a motion.
At Sebastian's December 1, 2008, sentencing hearing, the
district court adopted the PSR's recommendations but also granted
the government's motion under 18 U.S.C. § 3553(e) and U.S.S.G.
§ 5K1.1 for a downward departure, based on assistance Sebastian had
provided the government. The district court sentenced Sebastian to
193 months' imprisonment. The court made clear that it would have
imposed a life sentence but for the government's motion.
The court imposed ten years' supervised release under
most of the terms recommended in Sebastian's PSR, including the
requirement that Sebastian attend a sex-offender treatment program
and that he be prohibited from possessing pornography should that
be required by the rules of his sex-offender treatment program.
The court specifically found that the sentence was sufficient but
not greater than necessary to effectuate the goals of 18 U.S.C.
§ 3553(a). At no time in the sentencing hearing before the judge
or thereafter did Sebastian object to the sex-offender treatment
program requirement or raise the question of what role, if any, the
crack/powder cocaine disparity should play.
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II.
Since Sebastian did not raise either of his sentencing
objections in the district court, we review them for plain error.2
See United States v. Perazza-Mercado, 553 F.3d 65, 74 (1st Cir.
2009). Under this standard, Sebastian has the burden of showing
that "(1) an error occurred; (2) the error was clear and obvious;
(3) the error affected the defendant's substantial rights; and (4)
the error impaired the fairness, integrity, or public reputation of
the judicial proceedings." United States v. Guzman, 603 F.3d 99,
110 (1st Cir. 2010) (quoting United States v. Mangual-Garcia, 505
F.3d 1, 15 (1st Cir. 2007)) (internal quotation marks omitted); see
also United States v. Olano, 507 U.S. 725, 736 (1993).
A. Sex-Offender Treatment Conditions
Sebastian argues that these conditions could not be
imposed because nothing in the record indicates that (1) he needs
a sex-offender treatment program, (2) requiring him to participate
in one would protect the public or benefit him, or (3) possession
of pornography would render him more prone to criminal conduct. He
also argues that the judge failed to provide a reasoned explanation
for these conditions.
The district court's reasoning is easy to infer from the
record, the PSR, and the court's statements at the sentencing
2
Normally, we review conditions of supervised release for
abuse of discretion. United States v. Prochner, 417 F.3d 54, 62
(1st Cir. 2003).
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hearing, so we discard that objection, see United States v.
Jiménez-Beltre, 440 F.3d 514, 519 (1st Cir. 2006), and turn to
substance--asking whether the conditions complained of is "clearly
erroneous;" because we conclude that it was not, issues of
prejudice and miscarriage of justice need not be reached.
If we were reviewing the conditions based on a preserved
objection, the substantive question would be whether these
conditions were both reasonably related to the history and
characteristics of the defendant and whether they would serve a
permissible purpose such as deterring criminal conduct, protecting
the public, or providing the defendant with needed treatment.3
"'[T]he critical test is whether the challenged condition is
sufficiently related to one or more of the permissible goals of
supervised release[,]' [and] . . . . the fact that a condition of
supervised release is not directly related to [the] crime of
conviction does not render that condition per se invalid." United
States v. York, 357 F.3d 14, 20 (1st Cir. 2004) (quoting United
States v. Brown, 235 F.3d 2, 6 (1st Cir. 2000)).
3
A district court may impose additional conditions of
supervised release that are reasonably related to the sentencing
factors in 18 U.S.C. § 3553(a)(1)-(2). See id. § 3583(d). Those
factors include "the nature and circumstances of the offense and
the history and characteristics of the defendant" and the need for
the sentence to "afford adequate deterrence to criminal conduct,"
"protect the public from further crimes of the defendant," and
"provide the defendant with . . . correctional treatment in the
most effective manner." Id. § 3553(a)(1)-(2); see also id.
§ 3583(d); U.S.S.G. § 5D1.3(b).
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This court has previously ruled that such conditions of
supervised release may be imposed when the instant offense of
conviction is not a sex offense but the defendant had a conviction
for a sex offense. York, 357 F.3d at 14; accord United States v.
Prochner, 417 F.3d 54, 63 (1st Cir. 2003).
Sebastian had previously been convicted of a sexual
assault serious enough to warrant a ten-year sentence. That eight
of those years were suspended does not detract from the gravity of
the offense: two years in prison is not a trivial amount and the
additional eight years under a suspended sentence may reflect a
concern about long-term behavior. Pertinently, the Supreme Court
has recognized that "[t]he risk of recidivism posed by sex
offenders is 'frightening and high.'" Smith v. Doe, 538 U.S. 84,
105 (2003) (quoting McKune v. Lile, 536 U.S. 24, 34 (2002)).4
The Smith Court approved a state sex-offender-
registration statute and noted,
Empirical research on child molesters, for instance, has
shown that, "[c]ontrary to conventional wisdom, most
reoffenses do not occur within the first several years
after release," but may occur "as late as 20 years
following release." National Institute of Justice, R.
Prentky, R. Knight, & A. Lee, U.S. Dept. of Justice,
Child Sexual Molestation: Research Issues 14 (1997).
4
"When convicted sex offenders reenter society, they are
much more likely than any other type of offender to be rearrested
for a new rape or sexual assault. . . . Therapists and
correctional officers widely agree that clinical rehabilitative
programs can enable sex offenders to manage their impulses and in
this way reduce recidivism." McKune, 536 U.S. at 33.
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538 U.S. at 104 (alteration in original); see also P. A. Langan,
PhD, et al., Recidivism of Sex Offenders Released from Prison in
1994, at 1 (2003) (finding that 5.3 percent of 9,691 convicted sex
offenders released in 1994 were rearrested for a sex crime within
three years, a rate four times higher than for other types of
offenders released in 1994).
Further, various studies indicate that sex-offender
treatment programs may help reduce recidivism. Ctr. for Sex
Offender Mgmt., U.S. Dep't of Justice, Myths and Facts About Sex
Offenders (2000). Indeed, in 2006, Congress enacted the Sex
Offender Registration and Notification Act ("SORNA"), Pub. L. No.
109-248, Sec. 1, §§ 101-55, 120 Stat. 587, 587-88 (2006), to
address the risks posed by high recidivism rates of convicted sex
offenders. State registration laws also serve those functions.
See Smith, 538 U.S. at 104-05.
In addition, as the district court noted at the
sentencing, Sebastian apparently had earlier professed regret and
assured courts that he would never again commit such crimes, but
his multiple convictions for drug offenses (eight in eighteen
years, including the present conviction) showed just the opposite
about him. The district judge characterized Sebastian as "an
individual who has created a remarkable record of ignoring every
possible warning that has been provided to [him] by the criminal
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justice system." That "salesmanship," the court said, "has come to
an end."
All of this makes clear that it was hardly "clearly
erroneous" for the district court, on the basis of a condition
recommended by the PSR and not objected to in any way, to impose
the treatment condition. Sebastian suggests that the district
court did not know enough about the circumstances of the earlier
assault that led to the sentence. Sebastian himself, had he
objected to the condition, could have provided relevant
information, but he chose not to do so and can hardly complain.
This brings us to Sebastian's separate argument that
nothing justified a condition prohibiting him from possessing
pornography if his treatment program mandated such a ban.5 This is
not the main focus of Sebastian's attack and understandably so.
The program for him may not even be selected until his release in
2024 and what ban, if any, may be imposed is uncertain. Nor do we
know anything about how the ban will relate to his circumstances at
that time. In the absence of such details, Sebastian must show
5
The sentencing judge imposed two relevant conditions.
Paragraph 5 of the supervised-release terms requires Sebastian to
comply "scrupulously" with all policies and procedures of any sex-
offender treatment program as directed by a supervising officer.
Paragraph 3 requires Sebastian to submit to a search of his
premises if the supervising officer has reasonable basis "to
believe that such a search will lead to the discovery of evidence
of the defendant's violation of the terms of supervised release,
including pornographic materials which defendant is prohibited from
possessing under the rules of his sex offender treatment program."
(emphasis added).
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that the conditional ban is facially unreasonable. See York, 357
F.3d at 23.
We have previously remanded when, with no explanation and
unrelated to any treatment program ordered, a district court
imposed a total ban on a convicted sex offender's use of the
internet at home (over objection) or (without objection) possession
of any pornography in the home. Perazza-Mercado, 553 F.3d at
74-75, 79. But this is hardly the same as the conditional
limitation imposed in this case--which does little more than
require Sebastian to follow the rules of any program he may be
required to attend. If the district court could not mandate
compliance with the rules of the treatment program, the required
participation would be ineffectual. See United States v. Vega, 332
F.3d 849, 852 (5th Cir. 2003) (per curiam); see also United States
v. Fellows, 157 F.3d 1197, 1204 (9th Cir. 1998) (affirming a
condition of supervised release that the defendant participate in
a sex-offender treatment program and "follow all other lifestyle
restrictions or treatment requirements imposed by [his] therapist")
(alteration in original) (internal quotation marks omitted).
Further, the use of such bans in connection with the
treatment of sexual offenders has support in some studies, which
find a link between recidivism of sexual offenders and exposure to
pornography. See, e.g., D.A. Kingston et al., Pornography Use and
Sexual Aggression: The Impact of Frequency and Type of Pornography
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Use on Recidivism Among Sexual Offenders, 34 Aggressive Behav. 341,
341-43 (2008) (reviewing mixed literature). Without attempting to
settle the empirical question, we see no plain error in requiring
Sebastian to comply with a pornography ban if and only as required
by any treatment program he may attend--in effect, remitting the
matter to the judgment of the treatment program. It remains open
to him to challenge specific applications of any program's
requirements when actually imposed in the future. York, 357 F.3d
at 23; see also United States v. Davis, 242 F.3d 49, 51-52 (1st
Cir. 2001) (per curiam).
B. Crack/Powder Disparity
Sebastian argues to us, though he did not to the district
court, that the court erred in not reducing Sebastian's sentence in
light of the crack/powder sentencing disparity. He asserts that,
had the disparity been taken into account, his sentence would have
been shorter.
Courts have discretion to depart from the U.S. Sentencing
Guidelines based on policy disagreements over the sentencing
disparity between crack and powder cocaine. Kimbrough v. United
States, 552 U.S. 85, 108-10 (2007). But discretion under Kimbrough
applies to the Sentencing Guidelines and not to statutory mandatory
minimum sentences. Id. at 107; United States v. Fanfan, 558 F.3d
105, 111 n.6 (1st Cir. 2009). Sebastian's sentence was driven by
the statutory minimum, under 21 U.S.C. § 841(b)(1)(A), after he
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pled guilty to an offense involving fifty or more grams of cocaine
base.
Even if the court did have discretion, there was no
error. On plain error review defendants must also show a
"reasonable probability" that the sentence would have been more
lenient had the disparity been taken into account. United States
v. Matos, 531 F.3d 121, 122 (1st Cir. 2008). There is not a whiff
in this record that even if the court had discretion to reduce the
mandatory minimum sentence on disparity grounds the court would
have imposed a more lenient sentence.
The district court's judgment is affirmed.
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