UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4323
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHARLES W. NAUMANN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Terry L. Wooten, Chief District
Judge. (3:13-cr-00829-TLW-1)
Submitted: October 29, 2014 Decided: November 10, 2014
Before NIEMEYER, AGEE, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Kimberly H. Albro, Research and Writing Specialist, OFFICE OF
THE FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for
Appellant. William N. Nettles, United States Attorney, Jamie
Lea Nabors Schoen, Assistant United States Attorney, Columbia,
South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Charles W. Naumann pled guilty, without a plea
agreement, to failure to register under the Sex Offender
Registration and Notification Act, in violation of 18 U.S.C.
§ 2250(a) (2012). The district court sentenced him to a
Guidelines term of imprisonment of thirty-five months and an
above-Guidelines term of supervised release of fifteen years.
Naumann appeals, claiming that his sentence is procedurally and
substantively unreasonable. We affirm.
In reviewing a district court’s sentence, we first
determine whether “the district court committed [a] significant
procedural error, such as failing to calculate (or improperly
calculating) the Guidelines range, . . . failing to consider the
[18 U.S.C.] § 3553(a) [(2012)] factors, selecting a sentence
based on clearly erroneous facts, or failing to adequately
explain the chosen sentence.” Gall v. United States, 552 U.S.
38, 51 (2007). If there is no significant procedural error, the
court must then review the sentence imposed, “whether inside,
just outside, or significantly outside the Guidelines range[,]”
for substantive reasonableness “under a deferential abuse-of-
discretion standard.” Id. at 41. Substantive reasonableness is
determined by considering “the totality of the circumstances,
including the extent of any variance from the Guidelines range.”
Id. at 51. The court “must give due deference to the district
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court’s decision that the § 3553(a) factors, on a whole, justify
the extent of the variance,” and the fact that we might have
imposed a different sentence “is insufficient to justify
reversal of the district court.” Id.
Naumann argues that the district court erred by
failing to address the § 3553(a) factors when it denied his
request for a downward variance. We conclude that the record
belies his claim, and the court did adequately address the
sentencing factors.
Next, Naumann asserts that the district court
improperly relied on erroneous factual findings to impose an
above-Guidelines term of supervised release. A court’s factual
findings at sentencing must be supported by the preponderance of
the evidence and will be reversed only for clear error. United
States v. Grubbs, 585 F.3d 793, 798-99, 803 (4th Cir. 2009).
First, Naumann argues that the district court erroneously relied
on a disputed Facebook post without finding it reliable. Any
perceived error in this regard is harmless, however, because the
district court did not rely the Facebook post when delivering
Naumann’s sentence. See United States v. Juarez-Gomez, 750 F.3d
379, 379 (4th Cir. 2014) (In reviewing sentencing
determinations, we “must reverse if we find error, unless we can
conclude that the error was harmless.”).
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Naumann also argues that the district court
erroneously found that he previously failed to register as a sex
offender. Although the district court did misspeak by
referencing Naumann’s past failures to register, in view of the
entirety of the court’s discussion, we conclude that the court
was alluding to part of the conduct underlying the offense of
conviction.
Naumann further asserts that the district court erred
by failing to explain why it imposed certain special conditions
of supervision. While the need to explain the chosen sentence
includes any special conditions of supervised release, United
States v. Armel, 585 F.3d 182, 186 (4th Cir. 2009), here the
sentencing transcript reveals that the district court adequately
explained its reasons. Accordingly, Naumann’s sentence is
procedurally reasonable.
Naumann also claims that the length of his term of
supervised release is substantively unreasonable, alleging that
the district court based its decision to vary upward solely on
other cases and not on an individualized assessment of his case.
This assertion is contradicted by the record, which shows that,
while the district court relied on precedent in determining its
authority to vary, it properly conducted an individualized
assessment before selecting a variance sentence.
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Naumann next argues that the district court improperly
relied upon the severity of his offense and the need for
punishment under 18 U.S.C. § 3553(a)(2)(A), in violation of 18
U.S.C. § 3583(c) (2012). Having reviewed the statements cited
by Naumann, we conclude that the district court mentioned the
severity of the offense solely with respect to its proper
consideration of deterrence and protection of the public.
Although the district court’s written statement of reasons
supporting the variance briefly cites § 3553(a)(2)(A) as one of
the factors considered by the district court, the court’s
statements at the sentencing hearing make it clear that the
district court did not improperly consider the need for
punishment in imposing a variance term of supervised release.
Finally, Naumann argues that the supervised release
requirements of mental health treatment and polygraph testing
are substantively unreasonable. Because Naumann did not object
to these conditions at sentencing, we review them for plain
error. United States v. Massenburg, 564 F.3d 337, 342 (4th Cir.
2009); see Henderson v. United States, 133 S. Ct. 1121, 1126-27
(2013) (discussing plain error standard). The district court
stated that it was imposing the mental health treatment and
polygraph requirements so that experts could determine whether
Naumann needed sex offender treatment. This court has held that
a twelve-year-old sex offense against a minor does not, standing
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alone, justify special conditions related to sex offenders.
United States v. Worley, 685 F.3d 404, 409 (4th Cir. 2012); see
also United States v. Morales-Cruz, 712 F.3d 71, 74 (1st Cir.
2013) (distinguishing cases involving recent sex offenses from
cases where sex offenses were more remote). In this case, the
sex offense was less than five years old, and the district court
did not impose sex offender conditions but took the more
measured approach of having Naumann monitored to determine
whether sex offender treatment is necessary. Therefore, any
error in the district court’s imposition of these requirements
was not plain.
Accordingly, we hold that the sentence imposed by the
district court is procedurally and substantively reasonable, and
we affirm the judgment of the district court. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED
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