UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 98-30705
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JASON BYNUM, also known as Jason James Bynum,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Louisiana
(97-CR-50066-ALL)
_________________________________________________________________
July 9, 1999
Before KING, Chief Judge, SMITH and BARKSDALE, Circuit Judges.
PER CURIAM:*
Having pleaded guilty to threatening to kill a person
protected by the United States Secret Service, in violation of 18
U.S.C. § 879, and the supervised release portion of his sentence
including a special condition prohibiting him from being in the
same town as anyone whose life he has threatened, Jason Bynum
maintains that the special condition was an upward departure,
entitling him to pre-sentencing notice; and that the condition is
improper. Neither issue was raised in district court. There being
no plain error, we AFFIRM.
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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I.
Bynum has an extensive history of mental health problems and
treatment. While incarcerated, he made threats against the
President and others protected by the Secret Service. He pleaded
guilty to one of 26 counts. Moreover, he has threatened to kill
his entire family and about 80 others.
Bynum was sentenced in 1998 to 27 months in prison, followed
by supervised release for a year. His supervised release special
conditions include submitting to mental health treatment as
directed by the probation officer, not having unsupervised contact
with his sister, and not living or otherwise being, “in the same
town as anyone he has threatened”.
II.
At issue is whether the residential restriction is an upward
departure, entitling Bynum to pre-sentencing notice; and whether
the restriction is improper.
Permissible conditions for supervised release, found at 18
U.S.C. § 3583(d), must (1) be reasonably related to the factors set
forth in 18 U.S.C. § 3553(a)(1) and (a)(2)(B)-(D); (2) involve no
greater deprivations of liberty than are reasonably necessary for
the purposes set forth in § 3553(a)(2)(B)-(D); and (3) be
consistent with any pertinent policy statements issued by the
Sentencing Commission pursuant to 28 U.S.C. § 994(a). See 18
U.S.C. § 3583(d)(1)-(3).
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The court is to consider, under the referenced § 3553(a)(1),
the nature and circumstances of the offense and the history and
characteristics of the defendant; under the referenced §
3553(a)(2)(B)-(D), the need to adequately deter criminal conduct,
protect the public from further crimes, and provide rehabilitation
for the defendant.
And, under § 3583(d), the district court may impose additional
conditions of supervised release, set forth as discretionary
conditions of probation in 18 U.S.C. § 3563(b)(1) through (b)(10)
and (b)(12) through (b)(20). Such discretionary conditions include
prohibitions against frequenting specified kinds of places or from
associating unnecessarily with specified persons, 18 U.S.C. §
3563(b)(6), and requiring residing, or refraining from residing, in
a specified location. 18 U.S.C. § 3563(b)(13).
United States Sentencing Guideline § 5D1.3 reflects the
statutory mandate of § 3583. See United States v. Coenen, 135 F.3d
938, 940 (5th Cir. 1998). The Guideline also provides certain
recommended special conditions for supervised release. See id.
But, absent is any reference to residential restrictions. See
U.S.S.G. § 5D1.3. Thus, § 3583, addressing supervised release,
incorporates by reference the § 3563 conditions of probation to
apply likewise as special conditions of supervised release; but,
the Guidelines do not. Compare 18 U.S.C. § 3583(d), with U.S.S.G.
§ 5D1.3.
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Ordinarily, imposition of a supervised release condition is
reviewed for abuse of discretion. See United States v. Mills, 959
F.2d 516, 519 (5th Cir. 1992). However, Bynum objected neither to
lack of notice, nor to the imposition of the special term.
Accordingly, we review only for plain error. See, e.g., United
States v. Milton, 147 F.3d 414, 420 (5th Cir.), rehearing and
suggestion for rehearing en banc denied, 157 F.3d 905 (5th Cir.
1998). “[W]e will reverse for plain error if (1) there is error,
(2) that is clear or obvious, and (3) affecting substantial rights.
And, even then, we have discretion to correct such errors;
generally, we will do so only if they ‘seriously affect the
fairness, integrity, or public reputation of judicial
proceedings.’” Id. (quoting United States v. Calverley, 37 F.3d
160, 162-64 (5th Cir. 1994)(en banc),cert. denied, 513 U.S. 1196
(1995)). (The Government urges such review; Bynum does not
respond. Of course, no authority need be cited for the rule that
we, not the parties, determine the appropriate standard of review.
Nevertheless, Bynum’s silence on this point speaks volumes.)
A.
In determining whether FED. R. CRIM. P. 32 pre-sentencing notice
to Bynum was required, we must look to whether the residential
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restriction was an upward departure; such departure mandates such
notification. Burns v. United States, 501 U.S. 129, 138-39 (1991).
Our court concluded in Coenen that a community notification
condition was so far-reaching as to be tantamount to an upward
departure, requiring notice. See Coenen, 135 F.3d at 943. In
other words, notice is required for a supervised release condition
not expressly contemplated by the Guidelines. Id. On the other
hand, a special condition so contemplated is simply not an upward
departure, “because it falls within the range of sentencing
conditions available to the court under the Guidelines”; therefore,
notice is not required. Mills, 959 F.2d at 518-19.
For purposes of this opinion, because we are reviewing only
for plain error, it is not necessary to determine whether the
restriction is an upward departure. Instead, because there is no
plain error if the putative error was neither “clear” nor
“obvious”, we first need only to engage in that part of the four-
part plain error analysis. See Calverley, 37 F.3d at 162-64
(forfeited errors corrected on appeal only if, inter alia, “clear”
or “obvious”). Restated, if the restriction is arguably permitted,
then it cannot be an “obvious” or “clear” error not to consider it
an upward departure and, concomitantly, not to give Rule 32 notice.
As noted, although the restriction is not included in the
Guidelines’ discussion, it is referred to in the statute. See
U.S.S.G. § 5D1.3; 18 U.S.C. § 3583. At § 5B1.3(a)(2), the
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Guidelines refer to residential restrictions under terms of
probation, but do not incorporate this term to include supervised
release conditions as is done in the § 3583 statutory scheme.
Even though residential restrictions are statutorily
permitted, Bynum asserts that the Guidelines’ silence on the same
point translates into the restriction being an upward departure.
Consequently, he maintains that, pursuant to Rule 32, he was
entitled to notice of the court’s intention to impose the
restriction. If Bynum is correct, then he should have received
notice and had the opportunity to comment on the departure and
perhaps submit testimony or other evidence challenging the scope of
the condition and whether it was reasonably related to the
sentencing goals of public protection, deterrence, and
rehabilitation.
Bynum claims that his situation is similar to Coenen, 135 F.3d
at 942, in which our court stated that a special condition, which
required expansive community notification by a defendant convicted
of possessing child pornography, was “analogous” to either an
upward departure or to the statutory requirement of notice to the
defendant when the district court is considering requiring notice
to third parties. Bynum maintains that the residential restriction
is similar to the Coenen notification requirement.
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Coenen is distinguishable in several respects. First, the
community notification condition was far more expansive than the
restriction at issue. The Coenen special condition required
not only notice to law enforcement officials,
neighbors, and school officials, but also, if
the probation officer so direct[ed], signs,
handbills, bumper stickers, clothing labels,
and door-to-door oral communication....
Id. at 943 (emphasis in original). On the other hand, Bynum is
simply prohibited, for a period of one year following release from
prison, from being in the same town as any of the persons he has
threatened. This is hardly as onerous as the Coenen condition.
Further, our court noted in Coenen that § 3553(d) and
Guideline § 5F1.4 directed the district court to notify the
Government and the defendant if it was considering imposing notice
to victims. Id. There is no comparable statutory or Guidelines
provision requiring notice in this case.
Instead, this case is closer to Mills, 959 F.2d at 517-18,
involving a special condition forbidding the defendant from working
in the automobile business after he pleaded guilty to charges in
connection with turning back the odometers on vehicles he had sold.
Mills asserted on appeal that the occupational restriction was an
upward departure, requiring notice. Id. at 518. Our court held
otherwise, noting that Guideline § 5F1.5 authorized the district
court to impose such a restriction; requiring such notice would
undermine the efficient administration of the sentencing process;
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and Mills’ term of confinement was not at stake. Id. at 518-19.
(As stated in Coenen, “[a]rguably, the ‘term of confinement is not
at stake’ language [in Mills] is dicta; it was not necessary in
order to dispose of the specific item in issue”. Coenen, 135 F.3d
at 943.)
Although the Guidelines fail to mention a residential
restriction as a special condition, they do mention such
restrictions in § 5B1.3(a)(2), which discusses conditions of
probation, which is analogous to supervised release. More
importantly, as noted, § 3583(d) states that the district court
may, in its discretion, impose a condition that is set forth in §
3563(b)(12) through (b)(20); § 3563(b)(13) provides that a
defendant may be required to “reside in a specified place or area,
or refrain from residing in a specified place or area”. Thus, §
3583, which provides the statutory basis for supervised release,
authorizes a residential restriction as a special condition of
supervised release.
Again, because Bynum did not object to the lack of notice, we
review this issue only for plain error. It is quite arguable that
the residential restriction is not an upward departure. Therefore,
failure to give pre-sentencing notice was neither an “obvious” or
“clear” error. In short, there was no plain error.
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B.
Bynum challenges the propriety of the residential restriction.
Once again, because he did not present this issue in district
court, we review only for plain error. See, e.g., United States v.
Ravitch, 128 F.3d 865, 869 (5th Cir. 1997); United States v.
Wright, 86 F.3d 64, 65 (5th Cir. 1996).
Bynum having threatened to kill many people, including family
members, it is reasonable to conclude that, in the interests of
public safety, he should be kept apart from those so threatened,
even though it interferes with his liberty interests. See United
States v. Bird, 124 F.3d 667, 684 (5th Cir. 1997), cert. denied,
118 S. Ct. 1189 (1998) (defendant’s conviction for violent activity
under the Freedom of Access to Clinic Entrances Act constitutes
sufficient governmental interest to justify temporary limitation on
his First Amendment rights); Wright, 86 F.3d at 65 (persons on
supervised release do not enjoy absolute liberty but only
conditional liberty dependent upon observance of special
conditions).
Bynum, however, asserts that his situation is similar to
United States v. Edgin, 92 F.3d 1044, 1046-47 (10th Cir. 1996),
cert. denied, 519 U.S. 1069 (1997), in which the defendant pleaded
guilty to threatening the boyfriend of his son’s mother. As a
supervised release condition, the court ordered the defendant to
refrain from contact with his son. Id. at 1047. The Tenth Circuit
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remanded for the district court to state its reasoning for imposing
this condition, noting that “a father has a fundamental liberty
interest in maintaining his familial relationship with his son”.
Id. at 1049.
Bynum asserts that he has a similar liberty interest in seeing
his family. However, his situation is quite distinguishable from
that in Edgin, to say the least. In Edgin, the defendant’s son was
not the object of the defendant’s threats, so protecting him was
not an issue. Bynum’s family has been the subject of his threats.
Contending that his liberty interest outweighs any interests
in deterrence, protection of the public, or rehabilitation that may
be furthered by the imposition of the restriction, Bynum maintains
that he is not a prototypical violent offender, he was not
convicted of a violent offense, and there is no finding in the PSR
that he will be a future danger to society, but forbidding him from
living near his family will cause him further alienation and hinder
his chances of rehabilitation. In this regard, the PSR noted that
Bynum has made repeated threats against many persons, including his
entire family, and that he was twice charged with sexually
assaulting his younger sister (again, one of the uncontested
special conditions is his not contacting his sister except under
supervision).
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In the light of this information, any error in imposing the
restriction was neither “clear” nor “obvious”. Again, there was no
plain error.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
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