RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 07a0338p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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05-6586
v.
,
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RITCHIE G. KENNEDY, -
Defendant-Appellant. -
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Appeal from the United States District Court
for the Eastern District of Tennessee at Greeneville.
No. 04-00006—J. Ronnie Greer, District Judge.
Argued: May 31, 2007
Decided and Filed: August 24, 2007
Before: GIBBONS and COOK, Circuit Judges; and CLELAND, District Judge.*
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COUNSEL
ARGUED: Mary Ellen Coleman, Chattanooga, Tennessee, for Appellant. Caryn L. Hebets,
UNITED STATES ATTORNEY, Johnson City, Tennessee, for Appellee. ON BRIEF: Nikki C.
Pierce, FEDERAL DEFENDER SERVICES, Greeneville, Tennessee, for Appellant. Guy W.
Blackwell, UNITED STATES ATTORNEY, Greeneville, Tennessee, for Appellee.
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OPINION
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COOK, Circuit Judge. Ritchie G. Kennedy, who pleaded guilty to distributing child
pornography in violation of 18 U.S.C. § 2252A, now appeals his 87-month sentence and life term
of supervised release. Kennedy asserts that the district court violated his Fifth Amendment right
against self-incrimination by drawing a negative inference from his refusal to complete a
psychosexual examination prior to sentencing, and he urges that his life term of supervised release
is unreasonable. We affirm.
*
The Honorable Robert H. Cleland, United States District Judge for the Eastern District of Michigan, sitting
by designation.
1
No. 05-6586 United States v. Kennedy Page 2
I
Federal Bureau of Investigation (FBI) agents arrested Kennedy after he emailed an image
of child pornography to an undercover agent. Searching Kennedy’s computer, the FBI uncovered
seventy-seven images of child pornography in his email account. Kennedy cooperated with the FBI,
admitting that he had sent additional images to the undercover agent and had electronically traded
images with others.
The district court accepted Kennedy’s guilty plea, but deferred sentencing until the probation
officer could prepare a presentence investigation report (PSR). To this end, the probation officer
requested that Kennedy undergo a psychosexual evaluation, which consists of an interview,
plethysmograph, and polygraph. Kennedy moved the court to reject the request, but the court denied
Kennedy’s motion and ordered that he be evaluated. Kennedy moved the court to reconsider,
asserting that the examination would violate his Fifth Amendment right against self-incrimination.
The district court again denied Kennedy’s motion, holding that (1) it had authority to order
the examination under 18 U.S.C. § 3552(b) and (c), which permit the court to “order a study of the
defendant”; and that (2) although Kennedy maintained a Fifth Amendment right against self-
incrimination through sentencing under Mitchell v. United States, 526 U.S. 314 (1999), he must
assert that right “on an issue by issue basis, [and] not as a blanket claim.” Kennedy filed a Notice
of Appeal and had submitted a proof brief when the government asked the district court to revoke
Kennedy’s bond and order him incarcerated. The district court, troubled by Kennedy’s adamance
in opposing the examination, found that Kennedy posed a danger to the public, revoked his bond,
and remanded him to custody. See 18 U.S.C. § 3143(a)(1).
Seeking to avoid a lengthy presentence prison stay, Kennedy voluntarily dismissed his appeal
and agreed to be examined. The probation officer contracted with Counseling and Consultation
Services (CCS) to conduct the examination. CCS successfully interviewed Kennedy, but soon after
starting the plethysmograph portion of testing, CCS’s machine malfunctioned and testing terminated.
CCS contacted Kennedy’s lawyer, who was unaware that CCS had examined Kennedy in her
absence, to inform her that they would have to finish testing at a later date. Kennedy and CCS,
however, never completed the psychosexual examination.
At Kennedy’s sentencing hearing, the district court acknowledged that the PSR calculated
the appropriate Guidelines-recommended range as 70 to 87 months, and that both parties agreed a
sentence within that range would be reasonable. The government did not seek a specific Guidelines
sentence, but it did request a life term of supervised release. Kennedy’s counsel pressed for the
lowest Guidelines sentence and contested life supervision.
In making its determination, the district court considered Kennedy’s incomplete
psychosexual evaluation highly relevant, explaining:
One of the things that bears heavily in terms of any decision I have to make about
lifetime supervision is . . . Kennedy’s unwillingness to give the court any assurance
that he’s not dangerous. He refused to take the polygraph and has fought tooth and
nail against having the evaluation that this court ordered, and in fact has apparently
managed to obstruct it. What am I to make of that?
Kennedy’s counsel maintained that her client was merely following her advice, and that the local
Federal Defender’s Offices had adopted a policy of opposing on Fifth Amendment grounds
polygraph testing for defendants not yet sentenced, though later discussion suggested that the
offices’ concerns had yet to crystallize into a formal policy. Kennedy was willing to submit to the
polygraph and plethysmograph, she said, after sentencing or as part of supervision, but not prior to
sentencing.
No. 05-6586 United States v. Kennedy Page 3
The district court balked at this position:
One of the factors that I have to consider is the need to impose a sentence that
will protect the public from further crimes of the defendant, and that’s where the
discussion we’ve had about your refusal to submit to a polygraph and your refusal
to submit to initially and to complete the psychosexual evaluation ordered by the
court comes into play. By not having the results of those, I can’t properly assess
what the risk is that you will further offend. I can’t properly assess what kind of
danger you pose to the community.
. . . . [Q]uite simply, your actions, whether they’re your conscious actions or
whether you were following advice of counsel, have deprived me of in this case of
having the information I need to make that determination.
And the court took pains to provide a record for appellate review:
So that the record will be clear for the Sixth Circuit . . . , I do think that your refusal
to submit to a polygraph and your refusal to submit to and complete a psychosexual
evaluation are factors that are to be considered by this court in determining not only
a reasonable term of imprisonment, but also a reasonable term of supervised release.
The court further stated that it could not “risk not assuming that he is a danger to the public” and,
consequently, felt it should order lifetime supervision. At this point, Kennedy’s counsel replied, “I
think you can impose the life supervision, and that way . . . you will be able to know after the fact
. . . supervision wise . . . what needs to be done to treat him. . . . [But] [p]unishment should be
separate from supervision; that’s all I ask.”
The court then inquired into the situation with CCS and the malfunctioning machine, and the
parties offered conflicting accounts as to why they did not complete testing. Kennedy’s counsel
maintained that CCS was unwilling to proceed after learning that, as she saw it, she was meant to
be present from the outset. The probation officer, in contrast, reported that although CCS was
initially unaware that Kennedy’s counsel desired to be present, CCS was willing to go through with
testing if the parties agreed. But, as Kennedy’s counsel had already expressed Kennedy’s
unwillingness to again submit to the testing, the district court responded, “All right,” and then
addressed Kennedy directly about its sentencing determination:
I have considered very carefully the need to protect the public from further crimes
committed by you; and . . . I feel like that I do not have sufficient information,
information that would otherwise be available, on which to base a complete
judgment about whether or not the sentence I’m about to impose is necessary to
protect the public from further crimes.
The court sentenced Kennedy to 87 months, the highest Guidelines-recommended sentence.
Addressing the appropriate term of supervised release, the court again stressed its position for the
record, explaining as follows:
So that the record will be clear, . . . I am assuming based upon what appears to the
court to be your unwillingness to . . . participate in appropriate testing, that you are
in fact a danger, which, therefore, requires that I impose a lifetime term of supervised
release; so upon release from imprisonment, you shall be placed on supervised
release for a term of life.
No. 05-6586 United States v. Kennedy Page 4
II
We review a defendant’s sentence for reasonableness, crediting a sentence within the
Guidelines range with a presumption of reasonableness. United States v. Williams, 436 F.3d 706
(6th Cir. 2006); Rita v. United States, 127 S. Ct. 2456, 2462 (2007). Reasonableness encompasses
both a substantive and a procedural component. United States v. Jones, 445 F.3d 865, 869 (6th Cir.
2006); United States v. McBride, 434 F.3d 470, 475 n.3 (6th Cir. 2006). “A sentence may be
considered substantively unreasonable when the district court ‘select[s] the sentence arbitrarily,
bas[es] the sentence on impermissible factors, fail[s] to consider pertinent [18 U.S.C.] § 3553(a)
factors or giv[es] an unreasonable amount of weight to any pertinent factor.’” United States v.
Collington, 461 F.3d 805, 808 (6th Cir. 2006) (quoting United States v. Webb, 403 F.3d 373, 385
(6th Cir. 2005)). Procedural reasonableness requires that the sentencing court adequately consider
the § 3553(a) factors, including a correctly calculated Guidelines range. See McBride, 434 F.3d at
475–76; see also Rita, 127 S. Ct. at 2468 (“The sentencing judge should set forth enough to satisfy
the appellate court that he has considered the parties’ arguments and has a reasoned basis for
exercising his own legal decisionmaking authority.”).
A. Fifth Amendment Challenge
Kennedy argues that the district court improperly took account of his unwillingness to
complete the ordered psychosexual examination. We conclude, however, that it was well within the
district court’s discretion to consider Kennedy’s refusal when selecting its sentence. Congress has
explicitly authorized sentencing courts to “order a study of the defendant,” including “psychiatric
or psychological examination” to determine “the mental condition of the defendant,” 18 U.S.C.
§ 3552(b) and (c); and has instructed that “[n]o limitation shall be placed” on what information may
be considered by the court in making its sentencing determination, id. § 3661. Although Kennedy
contends that the district court’s express reliance on his refusal offended his Fifth Amendment rights
and did limit the court’s consideration, Mitchell makes clear that it did not.
In Mitchell, the Supreme Court held that (1) in the federal criminal system, a guilty plea does
not waive the privilege against self-incrimination at sentencing, and (2) a sentencing court may not
draw an adverse inference from a defendant’s silence in determining facts relating to the
circumstances and details of the crime. 526 U.S. at 324, 328. The Mitchell majority, however,
explicitly limited its holding regarding inferences drawn from a defendant’s silence to facts about
the substantive offense and did not address other inferences that may be drawn from a defendant’s
silence: “Whether silence bears upon the determination of a lack of remorse, or upon acceptance of
responsibility for purposes of the downward adjustment provided in § 3E1.1 of the United States
Sentencing Guidelines (1998), is a separate question. It is not before us, and we express no view
on it.” Id. at 330. Justice Scalia, dissenting for four Justices, underscored Mitchell’s narrowness,
observing that
the clutter swept under the rug by limiting the opinion to ‘determining facts of the
offense’ is not merely application of today’s opinion to § 3E1.1, but its application
to all determinations of acceptance of responsibility, repentance, character, and
future dangerousness, in both federal and state prosecutions—that is to say, to what
is probably the bulk of what most sentencing is all about.
Id. at 340 (Scalia, J., dissenting) (second emphasis added).
Kennedy’s case implicates Justice Scalia’s “clutter swept under the rug,” as the district court
plainly considered Kennedy’s refusal to complete testing in determining his propensity for future
dangerousness, rather than in determining facts of the offense. Given the narrowness of its holding,
Mitchell simply does not limit the district court’s ability to consider a wide variety of “information
No. 05-6586 United States v. Kennedy Page 5
concerning the background, character, and conduct” of the defendant in determining an appropriate
sentence, 18 U.S.C. § 3661; to “order a study of the defendant,” id. § 3552(b); and, therefore, to
consider the defendant’s refusal to cooperate in assessing what sentence is necessary “to protect the
public from further crimes of the defendant,” id. § 3553(a)(2)(C). In fact, as Justice Scalia aptly
observed, “Few facts available to a sentencing judge . . . are more relevant to ‘the likelihood that [a
defendant] will transgress no more, the hope that he may respond to rehabilitative efforts to assist
with a lawful future career, [and] the degree to which he does or does not deem himself at war with
his society’ than a defendant’s willingness to cooperate.” Mitchell, 526 U.S. at 339 (Scalia, J.,
dissenting) (quoting Roberts v. United States, 445 U.S. 552, 558 (1980)).
Thus, because the district court’s consideration of Kennedy’s refusal was not improper,
because the record demonstrates the court’s candid and thorough consideration of the § 3553(a)
factors in determining Kennedy’s sentence, and because Kennedy cannot overcome the presumption
of reasonableness credited to within-Guidelines sentences, we do not find Kennedy’s 87-month
sentence unreasonable.
B. Lifetime Supervision Challenge
Kennedy separately challenges the district court’s selection of lifetime supervised release.
But counsel’s statement to the court during sentencing, in which she explicitly advised the court that
it could appropriately account for the defendant’s potential for future dangerousness by imposing
lifetime supervision, puts counsel in the untenable position of having agreed in “open court with a
judge’s proposed course of conduct and [now] charg[ing] the court with error in following that
course.” United States v. Aparco-Centeno, 280 F.3d 1084, 1088 (6th Cir. 2002) (internal quotations
omitted). Doing so represents the “intentional relinquishment or abandonment of a known right.”
United States v. Olano, 507 U.S. 725, 732–33 (1993). Consequently, Kennedy waived this
challenge.
Waiver notwithstanding, this challenge would fail on its merits because we do not consider
the district court’s supervised-release decision unreasonable. Congress insists that lifetime
supervision be available to courts in sentencing sexual offenders: in this case, 18 U.S.C. § 3583(k)
expressly authorized the court to subject Kennedy to a life term of supervised release because
Kennedy’s crime constituted a violation of 18 U.S.C. § 2252A. Congress provided this option in
response to the
long-standing concerns of Federal judges and prosecutors regarding the inadequacy
of the existing supervision periods for sex offenders, particularly for the perpetrators
of child sexual abuse crimes, whose criminal conduct may reflect deep-seated
aberrant sexual disorders that are not likely to disappear within a few years of release
from prison.
H.R. Rep. No. 108-66, at 49-20 (2003) (Conf. Rep.), reprinted in 2003 U.S.C.C.A.N. 683, 684. The
Sentencing Guidelines, also, mirror the lifelong supervision provided for in the statute: although
the Guidelines range of supervised release is between two and three years for a defendant convicted
of a Class C or D felony, as here, see U.S.S.G. § 5D1.2(a)(2), that section contains a clear caveat,
providing that for “a sex offense, however, [lifetime] supervised release is recommended,” id.
§ 5D1.2(c), policy statement. We agree with the Fifth Circuit that, “[r]eading 18 U.S.C. § 3583(k)
together with the policy statement in § 5D1.2(c) indicates that the Congress and the Sentencing
Commission intended to impose life terms of supervised release on sex offenders.” United States
v. Allison, 447 F.3d 402, 405 (5th Cir. 2006). In light of these considerations, the district court
reasonably subjected Kennedy to lifetime supervised release.
No. 05-6586 United States v. Kennedy Page 6
And finally, as with the selection of Kennedy’s prison term, the district court did not err in
considering Kennedy’s refusal to complete the psychosexual examination in selecting a term of
supervision, and its thorough regard for the § 3553(a) factors demonstrates a reasonable decision.
III
For the foregoing reasons, we affirm.