United States v. Edgin

PUBLISH

UNITED STATES COURT OF APPEALS
Filed 8/9/96TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.
No. 95-6409
THEODORE J. EDGIN, also known as
Theodore John Edgin, also known as
Theodore Edgin,

Defendant-Appellant,

Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. CR-95-95-A)

Submitted on the Briefs:

William P. Earley, Assistant Federal Public Defender, Oklahoma City, Oklahoma,
for Defendant-Appellant.

Patrick M. Ryan, United States Attorney, and Ted A. Richardson, Assistant
United States Attorney, Oklahoma City, Oklahoma, for Plaintiff-Appellee.

Before SEYMOUR, Chief Judge, KELLY and LUCERO, Circuit Judges.

SEYMOUR, Chief Judge.

Theodore John Edgin pled guilty to using a telephone to communicate a
threat in violation of 18 U.S.C. § 875(c), and was sentenced to a term of thirty-

seven months imprisonment to be followed by thirty-six months of supervised

release under special conditions. He appeals. We affirm in part, but we remand

one of the special conditions of supervised release for further consideration by the

district court. 1

I.

Mr. Edgin met Mischelle Heiser in 1982, and over the following thirteen

years they had a tumultuous relationship. Mr. Edgin was often incarcerated, and

when he was not he lived in Oklahoma while Ms. Heiser lived in North Dakota.

Nevertheless, on December 8, 1988, Ms. Heiser gave birth to Jerrad Heiser, Mr.

Edgin’s son. Soon thereafter, Mr. Edgin was again incarcerated. When he was

released in August 1989, he visited Ms. Heiser and Jerrad in North Dakota. Over

the next four years, he visited them periodically.

In February 1995, Ms. Heiser chose to end their relationship. Mr. Edgin

was unwilling to accept this change, and escalated his contacts with Ms. Heiser.

He repeatedly called her, mailed letters, and sent flowers.

Jerrad did not know that Mr. Edgin was his father until Mr. Edgin told him

1
After examining the briefs and appellate record, this panel has
determined unanimously to honor the parties’ request for a decision on the
briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R.
34.1.9. Therefore the case is ordered submitted without oral argument.

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in a March 1995 telephone conversation. Ms. Heiser was upset by this, and

sought to keep Mr. Edgin away. In response, Mr. Edgin told her he would

establish his rights to visitation in court and seek to have his name added to

Jerrad’s birth certificate. 2

Around this time, Ms. Heiser started a relationship with a co-worker, Mr.

Highman. In the spring of 1995, Mr. Edgin called and wrote Mr. Highman to ask

him to respect Mr. Edgin’s relationships with Ms. Heiser and Jerrad. At some

point, Mr. Highman responded by thanking Mr. Edgin for leaving a bathrobe at

Ms. Heiser’s residence, as it came in handy when he got out of bed. Mr. Highman

then told Jerrad that Mr. Edgin did not want to be his father anymore and would

not visit him again.

On the night of May 4, upset by Mr. Highman and drunk, Mr. Edgin called

Mr. Highman’s residence in North Dakota from his own home in Shawnee,

Oklahoma. Although Mr. Highman hung up on Mr. Edgin more than once, Mr.

Edgin called back. Eventually, Mr. Edgin left a message on Mr. Highman’s

answering machine in which he threatened to hurt Mr. Highman in clear, forceful

terms:

I mean I’m gonna physically hurt you with my bare hands as
badly as I possibly can. OK? You’re fucking around with the

Apparently Mr. Edgin has not legally established himself as
2

Jerrad’s father, but Ms. Heiser told probation officers that Mr. Edgin is
Jerrad’s father. The government does not suggest otherwise.

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 most dangerous thing you can; a man’s family. You’re half my
size. You sit on your ass all day in an air conditioned office. I
do a man’s work 11 hours a day. I went to the penitentiary for
beating the shit out of cops. You’re not going to be able to wipe
your own ass when I get done with you. . . . If you go anywhere
near Shelly or Jerrad, ever again in your life, you’re, you, you
know, God himself won’t be able to get me off you. I’m gonna
bust some jaws. I’m gonna bust some fingers. I’m going to bust
some arms. . . . God himself cannot keep me off you; and I am
gonna physically hurt your sawed-off Yankee ass as bad as I
possible can.

PSR at ¶ 10. Some eleven days later, Mr. Edgin again called Mr. Highman and

discussed these threats.

Mr. Edgin was indicted for one count of making a threat via an interstate

telephone communication. He was arrested, and released on bond. Although a

condition of his release was that he not contact Ms. Heiser, Mr. Highman or

Jerrad, Mr. Edgin nevertheless wrote many letters to Ms. Heiser in which he

repeatedly professed his love for her and his desire to work out their differences.

Mr. Edgin entered a guilty plea. The court sentenced him to a term of

imprisonment of thirty-seven months, followed by three years of supervised

release. As special conditions of release, the court ordered that Mr. Edgin not

communicate with or travel to the state of residence of Ms. Heiser, Jerrad, or Mr.

Highman.

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 II.

Mr. Edgin attacks his sentence on three grounds. First, he maintains the

court erred in denying him a reduction under the Sentencing Guidelines for an

offense involving “a single instance evidencing little or no deliberation.”

U.S.S.G. § 2A6.1(b)(2). Second, he contends the court erred in declining to

reduce his sentence for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1.

Third, he maintains the court erred in imposing a special condition of release

which prevents him from contact with his son.

We review the court’s evidentiary determinations at a sentencing hearing

for clear error. United States v. Cruz, 58 F.3d 550, 553 (10th Cir. 1995). We

review the guidelines’ application de novo. Id. “Conditions of supervised

release, as ordered by the district court, are reviewed for abuse of discretion.”

United States v. Pugliese, 960 F.2d 913, 915 (10th Cir. 1992).

A.

We first consider Mr. Edgin’s contention that the court erred in declining to

reduce his sentence under U.S.S.G. § 2A6.1(b)(2), which provides for a four-point

reduction in the base offense level “if the offense involved a single instance

evidencing little or no deliberation.” Although Mr. Edgin repeatedly called and

wrote to Mr. Highman, he maintains he only threatened Mr. Highman during the

May 4 telephone call.

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 At the sentencing hearing, both the parole officer and Mr. Edgin testified

about the May 15 telephone call to Mr. Highman. The parole officer testified that

“Miss Heiser contacted the FBI for a second time on May 16th and told the

Special Agent Louks that she had received four phone calls the night before from

Mr. Edgin and that he had repeated the threats that he had made to . . . Mr.

Highman to her.” Id. at 25. The parole officer understood Mr. Edgin had

admitted to the FBI that he had made a second threatening phone call. Mr. Edgin

said they “talked about the time that I’d left that message on his machine

threatening to bust him up some.” Rec., vol. II at 17. Questioned by his counsel

as to whether he had made another threat in this second conversation, Mr. Edgin

said, “I don’t believe I did, no.” Id. at 20. Questioned by the court, Mr. Edgin

indicated that “I would feel bad if I did it, I didn’t want to do it. I knew it wasn’t

the right thing to do but I’d tried everything else in the world, I tried writing him

respectful letters, talking to him decently, and he just wants to keep going.” Id. at

18. The court prodded Mr. Edgin to explain his actions. Eventually, he said he

“was trying to find a way to scare [Mr. Highman] off and keep him from telling

[Jerrad] that kind of stuff again, it served no purpose other than to hurt my son’s

feelings.” Id. at 19. In light of this evidence, the district court did not clearly err

in finding that Mr. Edgin’s threats occurred on more than a single instance. 3

3
Mr. Edgin’s reliance on United States v. Pacione, 950 F.2d 1348
(7th Cir. 1991), cert. denied, 505 U.S. 1229 (1992) and United States v.

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 B.

Mr. Edgin next contends the district court erred in declining to reduce his

sentence for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. After Mr.

Edgin pled guilty, he submitted a statement which concluded: “I accept

responsibility for my actions. I know threatening someone over the telephone is

wrong and in violation of the law.” PSR at ¶ 14.

Although a guilty plea “will constitute significant evidence of acceptance

of responsibility,” the application notes indicate that “this evidence may be

outweighed by conduct . . . that is inconsistent with such acceptance of

responsibility.” U.S.S.G. § 3E1.1 (n.3). Indeed, the court found Mr. Edgin’s

repeated attempts to contact Ms. Heiser demonstrated that he “stubbornly refuses

to accept responsibility for, what after all, is a course of conduct.” Rec., vol. II at

36. On appeal, Mr. Edgin counters that his contacts with Ms. Heiser are not

relevant here because he never threatened her. However, the sentencing judge has

a unique capacity to assess the defendant’s demeanor as regards his acceptance of

responsibility. See U.S.S.G. § 3E1.1 (n.5). “For this reason, the determination of

a sentencing judge is entitled to great deference on review.” Id. In light of Mr.

Sanders, 41 F.3d 480 (9th Cir. 1994), cert. denied, 115 S. Ct. 2010 (1995),
is misplaced because both cases involved threats which occurred over the
period of a few hours or less.

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Edgin’s determined efforts to contact Ms. Heiser and the other evidence presented

at the sentencing hearing, the district court did not clearly err in finding that Mr.

Edgin had not accepted responsibility.

C.

Finally, Mr. Edgin challenges the district court’s imposition of a special

condition of supervised release preventing him from contacting his son. At the

close of the sentencing hearing, the court ruled “first, during supervised release

Mr. Edgin may not have any communication in any form whatsoever, letter,

telephone call, personally-delivered note, personal visit, visit through

intermediary or any other form whatsoever, with Miss Heiser, with Jerrad Heiser,

or with Mr. Highman.” Rec., vol. II at 47. Second, the court barred Mr. Edgin

from traveling to the state in which either Ms. Heiser or Jerrad resides. Id. Mr.

Edgin contends the court did not have the statutory authority to impose these

conditions with respect to Jarrad.

In most cases, a court may impose a term of supervised release after a term

of imprisonment. 18 U.S.C. § 3583(a). A court enjoys broad discretion in setting

a condition of supervised release, see United States v. Pendergast, 979 F.2d 1289,

1292 (8th Cir. 1992); United States v. Showalter, 933 F.2d 573, 574 (7th Cir.

1991), but such a term must meet three requirements:

-8-
 The court may order, as a further condition of supervised release, to the
extent that such condition--

(1) is reasonably related to the factors set forth in section 3553(a)(1),
(a)(2)(B), (a)(2)(C), and (a)(2)(D);

(2) involves no greater deprivation of liberty than is reasonably
necessary for the purposes set forth in section 3553(a)(2)(B), (a)(2)(C), and
(a)(2)(D); and

(3) is consistent with any pertinent policy statements issued by the
Sentencing Commission pursuant to 28 U.S.C. 994(a);

any condition . . . it considers to be appropriate.

18 U.S.C. 3583(d).

Under this statutory scheme, a condition of supervised release must be

reasonably related to “the nature and circumstances of the offense and the history

and characteristics of the defendant.” 18 U.S.C. § 3553(a)(1). Moreover, the

condition must involve no greater deprivation of liberty than is reasonably

necessary given the needs “to afford adequate deterrence to criminal conduct,” id.

§ 3553(a)(2)(B), “to protect the public from further crimes of the defendant,” id.

§ 3553(a)(2)(C), and “to provide the defendant with needed educational or

vocational training, medical care, or other correctional treatment in the most

effective manner,” id. § 3553(a)(2)(D). 4

4
The sentencing guidelines echo the statute, see U.S.S.G. § 5D1.3(b), and
add: “Recommended conditions of supervised release are set forth in § 5B1.4,”
id.

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 Mr. Edgin raises the argument regarding his son for the first time on

appeal. However, the Federal Rules of Criminal Procedure require that “[a]t the

sentencing hearing, a court must afford counsel for the defendant and for the

Government an opportunity to comment on the probation officer’s determinations

and on other matters relating to the appropriate sentence . . . .” Fed. R. Crim. P.

32(c)(1). The court imposed the special condition after it had resolved all the

objections to the presentence report and had permitted Mr. Edgin to make a final

statement. Mr. Edgin was afforded no notice of or opportunity to comment on the

special condition. Under these circumstances, Mr. Edgin’s attack on the special

condition was not waived by his failure to assert it below. See United States v.

Esqueda-Moreno, 56 F.3d 578, 580 (5th Cir.) (“[A] Rule 32 violation may be

addressed for the first time on appeal . . . .”), cert. denied, 116 S. Ct. 348 (1995).

See also Burns v. United States, 501 U.S. 129, 134 (1991) (“Federal Rule of

Criminal Procedure 32 provides for focused, adversarial development of the

factual and legal issues relevant to determining the appropriate Guidelines

sentence.”).

Indeed, the district court imposed the special condition at issue here at the

close of the sentencing hearing without making factual findings or providing any

reasons in support. As we have previously stated, “the district court must make a

generalized statement of its reasoning for imposing a particular sentence so that

appellate review does not flounder in the ‘zone of speculation.’” United States v.

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Slater, 971 F.2d 626, 633 (10th Cir. 1992)(quoting United States v. Underwood,

938 F.2d 1086, 1091-92 (10th Cir. 1991)). See also 18 U.S.C. § 3553(c) (“The

court, at the time of sentencing, shall state in open court the reasons for its

imposition of the particular sentence . . . .”); United States v. Zackson, 6 F.3d

911, 923 (2d Cir. 1993) (“Zackson’s claim of abuse of discretion cannot be

properly reviewed without some statement in the record which reveals the

justification for the imposition of the particular sentence.”).

Accordingly, we remand the case for the district court to state its reasoning

for imposing the special conditions of supervised release on Mr. Edgin. In so

doing, we reiterate that section 3583(d)(2) requires conditions restricting a

defendant’s liberty to be especially fine-tuned to achieve the goals set forth in

section 3553(a)(2)(B), (C) and (D). 5 The special condition regarding Mr. Edgin’s

son implicates Mr. Edgin’s liberty. As a general matter, a father has a

fundamental liberty interest in maintaining his familial relationship with his son.

See Quilloin v. Walcott, 434 U.S. 246, 255 (1978). We “have, in the Fourteenth

Amendment context, recognized that the relationship between parent and child is

5
While section 3583(d)(1) requires only that a condition of supervised
release be “reasonably related” to certain ends, section 3583(d)(2) requires more:
that the deprivation of liberty be “reasonably necessary” to deter Mr. Edgin from
further criminal conduct, protect the public, or provide Mr. Edgin with
educational training or medical care. Compare 18 U.S.C. § 3583(d)(2) with Porth
v. Templar, 453 F.2d 330, 333 (10th Cir. 1971) (“The only limitation [on terms of
probation] is that the conditions have a reasonable relationship to the treatment of
the accused and the protection of the public.”).

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constitutionally protected.” Wise v. Bravo, 666 F.2d 1328, 1331 (10th Cir. 1981);

see also id. at 1336-37 (Seymour, J., concurring) (relating cases recognizing the

“right to a relationship with one’s child”). Unwed fathers’ relationships are

protected because of “a practical recognition that biology and association can

together establish a relationship between father and child that may be essential to

the happiness of both, even if the formality of marriage is missing.” Pena v.

Mattox, F.3d , 1996 WL 269989, *6 (7th Cir. 1996). However, a lack of

support for or relationship with the child is relevant to the weightiness of the

unwed father’s liberty interest. See generally id.

Mr. Edgin has not appealed the special conditions which prevent him from

contact with Ms. Heiser or Mr. Highman. These terms of supervised release may

suffice to deter further criminal conduct by Mr. Edgin directed at Ms. Heiser and

Mr. Highman without a total prohibition on his contact with his son. 6 On remand,

the district court is free to consider “fine tuning” the supervised-release

conditions so that Mr. Edgin may not use contacts with his son to harass Ms.

Heiser and Mr. Highman.

We REMAND to the district court for further findings.

6
Although § 3583 does not directly contemplate Jerrad Heiser’s interests,
the terms of supervised release would prevent him from any contact with his
father. Of course, state courts possess the jurisdiction and expertise to address
these concerns, and Mr. Edgin’s sentencing would in no way bar Mr. Edgin and
Ms. Heiser from seeking to resolve their respective rights and Jerrad Heiser’s
interests.

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No. 95-6409, United States v. Theodore J. Edgin.

Kelly, Circuit Judge, concurring.

I concur in the court’s opinion, with the exception of the discussion

concerning a constitutional liberty interest. There is no need to reach this issue

even as “a general matter” because the statute, 18 U.S.C. § 3583(d)(2), limits the

extent of any deprivation of liberty. At this point, we lack sufficient facts to

decide whether Mr. Edgin has a constitutional liberty interest in his relationship

with the child. I note that in both Quilloin v. Walcott, 434 U.S. 246, 254-56

(1978), and Pena v. Mattox, 84 F.3d 894, 899 (7th Cir. 1996), the biological

fathers were unsuccessful in gaining relief on constitutional claims. In this case,

any constitutional liberty interest would have to be balanced against the

government’s right to restrict the liberty of a convicted person such as Mr. Edgin,

whether it be for punitive, deterrence or rehabilitative purposes.