In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 12‐3726
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
PATRICK T. EVANS,
Defendant‐Appellant.
____________________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 09‐CR‐157 — Rudolph T. Randa, Judge.
____________________
ARGUED APRIL 10, 2013 — DECIDED AUGUST 16, 2013
____________________
Before POSNER, WOOD, and WILLIAMS, Circuit Judges.
WOOD, Circuit Judge. In 2010 a jury convicted Patrick
Evans of being a felon in possession of a firearm, in violation
of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and of possessing
cocaine and marijuana with intent to distribute it, in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and (b)(1)(D).
The court sentenced him to 55 months’ imprisonment
followed by three years of supervised release. Shortly
thereafter, he was convicted in Wisconsin state court on two
2 No. 12‐3726
charges involving sexual abuse of a minor. The state court
sentenced him to five years of probation and ordered that
this should follow his federal term of supervised release.
When the district court learned of Evans’s state sex‐offense
convictions two years later, it modified the terms of Evans’s
original sentence to require Evans to attend a sex offender
assessment and treatment program while on supervised
release for his federal convictions.
On appeal, Evans challenges the district court’s
modification of the conditions of his supervised release. He
argues first that the district court did not have the authority
to change the terms when he did not violate the existing
terms, and second that the court was not authorized to
impose sex‐offender treatment because it is unrelated to his
crimes of conviction in federal court. We find no merit in
either of these points. District courts have wide latitude to
modify the terms of supervised release regardless of
whether the defendant violated the original terms. Evans’s
second argument presents a closer call: the terms of
supervised release must be reasonably related to the goals of
sentencing—deterrence, rehabilitation, and protecting the
public—in light of the history and characteristics of the
defendant. Because Evans’s sex‐offense conviction was
contemporaneous to his drug and firearm convictions, the
goals of rehabilitation and protecting the public justified the
district court’s decision to impose sex‐offender treatment.
I
On February 4, 2010, Evans received his sentence for the
federal drug and firearm offenses. Eleven days later, he
pleaded no contest in Wisconsin state court to one count of
“child enticement‐sexual contact” and one count of “sex
No. 12‐3726 3
with a child age 16 or older.” The criminal complaint
underlying these charges alleged that Evans abducted a 16‐
year‐old girl; forced her to smoke crack; watched her have
sex with another woman; and had sexual intercourse with
her twice. The semen extracted from a condom found at the
crime scene and from vaginal and cervical swabs of the
victim matched Evans’s DNA profile. The record does not
reflect whether Evans accepted responsibility for all of the
alleged misconduct when he pleaded no contest to these
charges. The Wisconsin state court sentenced Evans to five
years of supervised release, during which he would be
required to undergo sex‐offender treatment. This state
supervised release term was to follow his three years of
federal supervised release.
Evans began serving his federal supervised release term
on June 29, 2012. Shortly thereafter, the United States
Probation Department contacted the Wisconsin Department
of Corrections regarding Evans’s sex‐offense convictions.
Wisconsin officials reported that Evans would be required to
attend sex‐offender therapy as a condition of his state
supervised release. Rather than wait three years for the
federal supervised release to end before starting Evans’s sex
offender therapy, the probation department petitioned the
district court to include sex‐offender therapy in Evans’s
federal supervised release, “to provide a risk assessment and
interventions designed to reduce the likelihood this behavior
would occur in the future.”
On November 20, 2012, the district court held a hearing
to address the probation department’s petition. The court
explained that “Evans’s status before the court today [is] not
what it was when it sentenced him and set the conditions for
4 No. 12‐3726
supervised release,” since the court could not take the sex
offenses into account at the original sentencing because
Evans had not yet been convicted of those charges. It
concluded that the supervised release terms could be
modified in light of these “changed circumstances” and
accepted the probation department’s recommendation to
order Evans to attend sex‐offender treatment while serving
his federal supervised release.
II
Because Evans objected to the new condition, we review
the district court’s decision for an abuse of discretion. United
States v. Sines, 303 F.3d 793, 800 (7th Cir. 2002). Evans first
argues that the district court lacked authority to modify the
terms of his supervised release because he did not violate the
original conditions. We can readily dispose of this claim. The
statute governing supervised release, 18 U.S.C. § 3583(e)(2),
allows a district court “to modify, reduce or enlarge the con‐
ditions of supervised release at any time prior to the expira‐
tion or termination of a defendant’s term of supervised re‐
lease, pursuant to … Federal Rule of Criminal Procedure
[32.1] and the provisions applicable to the initial setting of
terms and conditions of post‐release supervision.” (Empha‐
sis added). When initially setting the terms and conditions of
post‐release supervision, the court is to “consider[] the fac‐
tors set forth in §§ 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D),
(a)(4), (a)(5), (a)(6), and (a)(7).” 18 U.S.C. § 3583(c). The fac‐
tors set forth in § 3553(a) include “the nature and circum‐
stances of the offense and the history and characteristics of
the defendant”; and “the need for the sentence imposed [] to
afford adequate deterrence to criminal conduct,” “to protect
the public from further crimes of the defendant,” and “to
No. 12‐3726 5
provide the defendant with needed educational or vocation‐
al training, medical care, or other correctional treatment in
the most effective manner.” 18 U.S.C. §§ 3553 (a)(1), (a)(2)(B),
(a)(2)(C), (a)(2)(D).
Nothing in Section 3583(e)(2) requires a violation of
existing conditions, or even changed circumstances, and
Evans identifies no authority that suggests as much. To the
contrary, that statute expressly refers to “the provisions of
the Federal Rules of Criminal Procedure” relating to
modifications of probation or the initial imposition of
supervised release, and Rule 32.1 (the relevant rule) has a
Committee note explaining that “conditions should be
subject to modification, for the sentencing court must be able
to respond to changes in the probationer’s circumstances as
well as new ideas and methods of rehabilitation.” We have
explained that “just as the district court has wide discretion
when imposing the terms of supervised release, so too must
it have wide discretion in modifying the terms of that
supervised release.” Sines, 303 F.3d at 800 (citation omitted).
This rule is sensible: one can envision a host of scenarios in
which it would serve both the defendant and the penological
system to allow district courts latitude to modify terms of
supervised release even though the defendant has not
violated them. For instance, a defendant may demonstrate
quicker‐than‐expected rehabilitation that justifies lifting a
restrictive condition earlier than originally prescribed; or a
new, more effective treatment may become available for a
defendant’s condition (perhaps a new form of drug abuse
therapy, or treatment for psychological conditions); or the
defendant’s behavior in prison might persuade the district
court that more stringent terms are appropriate. The law
gives the district court the power to modify the terms of
6 No. 12‐3726
supervised release in order to take account of changed
circumstances, whether or not the defendant has already
violated existing terms.
III
Even if the district court had the power to make changes,
Evans argues that it went too far in his case. Any
modification, like the original conditions, must (1) be
“reasonably related to the factors identified in § 3553(a),
including the nature and circumstances of the offense and
the history and characteristics of the defendant; (2) involve
no greater deprivation of liberty than is reasonably
necessary for the purposes set forth in § 3553(a); and (3) [be]
consistent with the policy statements issued by the
Sentencing Commission.” United States v. Ross, 475 F.3d 871,
873 (7th Cir. 2007). Policies emphasized by the Sentencing
Commission include deterrence, rehabilitation, and
protecting the public. Id. Evans contends that the sex‐
offender treatment condition does not meet these criteria
because it is unrelated to the gun and drug offenses for
which he was being sentenced.
Ross presented a question similar to the one now before
us. The defendant was convicted of making false statements
to the FBI, and the court imposed sex‐offender treatment as a
special condition of supervised release. Ross argued that the
sex‐offender treatment was not reasonably related to his
offense of conviction. Nothing in the indictment, plea
agreement, or pre‐sentence report suggested that sexual
misconduct was part of the charged offense. Ross further
claimed that the sex‐offender treatment was not reasonably
related to his personal history, as he had never been charged
No. 12‐3726 7
with or convicted of a sex offense. Id. We concluded that the
sex‐offender condition was reasonably related to the offense
because Ross’s lies to the FBI indicated that he “fantasized
about crimes against children.” Id. at 875. Even so, Ross does
not answer the question we are faced with here. First, the
standard of review was more deferential in Ross: the
question was only whether the challenged conditions
amounted to a miscarriage of justice, not whether they were
an abuse of discretion. Id. Second, in Ross the defendant’s
lies to the FBI related to crimes involving children. Thus, one
could see how the offense conduct for which Ross was being
sentenced related to child abuse.
Other circuits have addressed situations like Evans’s,
where sexual abuse has nothing to do with the offense un‐
derlying the sentencing and the standard of review is abuse
of discretion. The majority hold that there must be some
connection between the defendant’s prior sexual misconduct
and the present application of the factors set forth in Section
3553(a). One way in which that connection can be shown is
temporal. Even if there is no substantive connection between
the crime of punishment and the defendant’s sexual miscon‐
duct, the sexual misconduct may be so recent or prominent
in the defendant’s behavior that a sentencing court aiming to
protect the public and rehabilitate the defendant would be
entitled to address it.
Other courts have upheld sex‐offender treatment
conditions when the sexual misconduct was so recent as to
be a contemporary characteristic of the defendant’s offender
profile at the time of sentencing; they have vacated such
conditions if the defendant’s last incident of sexual
misconduct is so remote in time that it does not support any
8 No. 12‐3726
present need to rehabilitate the defendant or protect the
public. For instance, in United States v. Scott, 270 F.3d 632
(8th Cir. 2001), the Eighth Circuit vacated a sex‐offender
treatment condition included in the defendant’s sentence for
the crime of armed robbery, when the condition was
predicated on a sexual offense that occurred in 1986. Id. at
633. The court reasoned that because there was no evidence
that the defendant “has a propensity to commit any future
sexual offenses, or that [he] has repeated this behavior in any
way since his 1986 conviction …, the special conditions seem
unlikely to serve the goals of deterrence or public safety,
since the behavior on which the special conditions are based,
though highly reprehensible, has ceased.” Id. at 636. But in
United States v. Smart, 472 F.3d 556 (8th Cir. 2006), the same
court affirmed sex‐offender treatment in a sentence for being
a felon in possession of a firearm, where the defendant’s sex
offenses had occurred more recently, in 1999. The court
explained that “Smart’s sexual offenses were much closer in
time to the imposition of special sex offender conditions”
than were the sex offenses in Scott. Id. at 559. In contrast to
Scott, who had no history of sexual misconduct in over a
decade, Smart was still on probation for the latest sexual
abuse offense at the time that he committed the present
offense, and he still had an outstanding warrant for a
probation violation on the latest sexual abuse offense. Id.
The Ninth Circuit has held that “supervised release
conditions need not relate to the offense for which
[defendant] was convicted so long as they satisfy any of the
conditions set forth [in Section 3553(a)].” United States v.
T.M., 330 F.3d 1235, 1240 (9th Cir. 2003). But in that case, the
court vacated a sex‐offender treatment condition because a
prior kidnapping conviction and charges of a previous
No. 12‐3726 9
sexual relationship with a minor had occurred twenty and
forty years earlier, and “[s]upervised release conditions
predicated upon twenty‐year‐old incidents, without more,
do not promote the goals of public protection and
deterrence.” Id. at 1240. Citing these decisions, the Sixth
Circuit vacated a sex‐offender treatment condition that was
predicated on a sexual offense committed 17 years earlier in
the sentence for a firearms conviction. United States v. Carter,
463 F.3d 526, 532‐33 (6th Cir. 2006). But the court found that
the sex‐ offender treatment could be predicated on the
defendant’s two‐year‐old stalking conviction, so long as the
district court verified that the defendant “committed the
offense in a sexual manner.” Id. at 533. See also United States
v. Weatherton, 567 F.3d 149, 154 (5th Cir. 2009) (sex offender
conditions could be predicated on a 1979 rape conviction
and a 2007 warrant charging the defendant with rape,
because the rape allegations in the 2007 warrant were
specific and contained sufficient indicia of reliability); United
States v. Hahn, 551 F.3d 977, 984 (10th Cir. 2008) (“While the
sex offender conditions imposed on Mr. Hahn do not relate
to the nature and circumstances of his offense, they do relate
to his history and characteristics, given his recent conviction
for a sex offense involving minor children. The conditions
are also reasonably related to the need ‘to protect the public
from further crimes of the defendant.’”) (emphasis added).
The common theme in these decisions is that sex‐
offender treatment is reasonably related to the factors in Sec‐
tion 3553(a), even if the offense of conviction is not a sex of‐
fense, so long as the sexual offenses are recent enough in the
defendant’s history that the goals of rehabilitation and pro‐
tecting the public justify an order for treatment. We agree
with the other circuits that have held that there must be
10 No. 12‐3726
some nexus shown between the sexual misconduct and ap‐
plicability of the Section 3553(a) factors for the current of‐
fense. Had Evans’s last incident of sexual misconduct oc‐
curred in 1990, rather than 2010, we would have a serious
possibility of abuse of discretion on our hands. It is difficult
to see how sex‐offender therapy would suddenly be neces‐
sary twenty years later to rehabilitate Evans or to protect the
public. But Evans’s sexual misconduct occurred at nearly the
same time as his drug and firearm offenses. When Evans
stood before the sentencing court, the sexual offenses were
not a remote part of his history, but instead part of his pend‐
ing, unpunished criminal conduct. The district court’s dis‐
cretion extends to the ability to address a defendant’s recent
and still‐untreated sexual offenses, as part of its authority to
impose supervised‐release terms designed to deter future
crimes, rehabilitate the defendant, and protect the public.
* * *
We AFFIRM the judgment of the district court.