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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-11921
Non-Argument Calendar
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D.C. Docket No. 3:05-cr-00114-HLA-MCR-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN J. TULIP,
a.k.a. John J. Tulip, III,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(October 14, 2015)
Before HULL, ROSENBAUM, and JULIE CARNES, Circuit Judges.
PER CURIAM:
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Defendant John Tulip appeals the district court’s modification of his
supervised release conditions to include participation in a mental health program
specializing in sex offender treatment. Defendant argues on appeal that the district
court abused its discretion in adding this supervised release condition because it
did not consider whether Defendant’s participation in sex offender treatment would
improve the odds of his successful transition back into community life or make
him less of a risk to the public. After careful review, we affirm.
I. BACKGROUND
A. Original Criminal Proceedings and Sentencing
In April 2006, Defendant pled guilty to inducing a minor to engage in
sexually explicit conduct to produce child pornography and transporting child
pornography in foreign commerce, in violation of 18 U.S.C. §§ 2251(a) and
2252(a)(1), respectively. These convictions stemmed from Defendant having
convinced a German mother (through the internet, a telephone call, and one visit to
the United States) to allow her ten-year old son to come live with Defendant in
Florida based on Defendant’s suggestion that it would be in the child’s best interest
to get an education in the United States. Sadly for the boy, Defendant was actually
interested in sexually exploiting him. In fact, after the boy began living with
Defendant, the latter either enticed or coerced him to pose nude in a sexually
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explicit way while Defendant took photographs. Defendant then sent these
photographs via the internet to a computer in Germany.
The district court sentenced Defendant to 135 months’ imprisonment—the
low end of his applicable guideline—followed by three years’ supervised release.
In addition to imposing the standard conditions of supervised release, the court also
imposed several special conditions, including that Defendant participate in a
mental health program as directed by the probation officer and that Defendant not
be allowed computer or internet access without approval from the probation
officer. Defendant did not appeal his conviction or sentence.
B. Motions to Modify Terms and Conditions of Supervised Release
In January 2013, while still incarcerated, Defendant filed a pro se motion to
modify the terms and conditions of supervised release. He asked the district court
to delete the condition prohibiting the use of a computer or accessing the internet
without approval from the probation officer. He argued that such restriction was
no longer necessary to protect the victim of his crimes or the public because he had
been rehabilitated, as evidenced by his exceptionally good behavior while in
prison, and had completed training to become a successful stock day trader. He
further explained that he would need internet access with minimal or no spyware to
be able to engage in his intended occupation as a day trader and the computer
restriction would hamper his ability to pursue that line of work. The Government
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opposed this motion, questioning why Defendant had concentrated his
rehabilitation efforts in an area that required access to computers, when Defendant
well knew his computer use would be restricted. The district court denied this
motion, and Defendant did not appeal.
Shortly before Defendant’s release from prison, his probation officer
petitioned the district court to modify the terms and conditions of Defendant’s
supervised release to require him to participate “in a mental health program
specializing in sex offender treatment approved by the probation officer.” The
probation officer asserted that this modification was necessary because of the
nature and circumstances of the offense, Defendant’s history and characteristics,
the need to protect the public from future crimes by Defendant, and to provide
correctional treatment. Specifically, the probation officer noted that Defendant had
denied to his Bureau of Prisons’ case manager that he had committed the offense
of conviction, but rather asserted that the boy had taken the naked pictures himself
and then used Defendant’s email to send the pornographic pictures over the
internet. The probation officer further noted that, while imprisoned, Defendant had
initially expressed interest in sex offender treatment, leading to his transfer to a
lower security prison. But upon arrival at the lower security prison, Defendant
refused any treatment, stating that he had only agreed to treatment in order to get
the transfer. Additionally, while incarcerated, Defendant had befriended two
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convicted sex offenders and provided false information to his case manager in an
effort to relocate to Nevada upon his release, specifically claiming that he would
be residing with a “cousin,” when in fact that person had no familial relationship
with Defendant and never returned the probation officer’s calls about arranging for
a home inspection.
At the hearing on the above motion for modification of the conditions of
supervised release, Defendant contested the district court’s authority to modify the
conditions of supervised release, given that Defendant had not yet committed a
supervised release violation. Further, he asserted that 18 U.S.C. § 3583 only
allowed for modification of the supervised release condition if modification was
related to the initial conditions and argued that psychosexual counseling was not
related to the court’s condition requiring mental health treatment. The
Government argued that § 3583(e)(2) allowed for modification at any time prior to
the expiration or termination of supervised release and that, at any rate,
psychosexual counseling was a provision applicable to the initial conditions
because it is a type of mental health treatment.
The district court granted the motion and modified Defendant’s conditions
of supervised release to require him to participate “in a mental health program
specializing in sex offender treatment approved by the probation officer.” It
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concluded that such a condition was reasonably related to Defendant’s history and
characteristics, his need for treatment, and the need to protect the public from him.
II. DISCUSSION
In support of his position that the modification of conditions was improper,
Defendant advances on appeal a different argument than the one he made before
the district court. Specifically, he now argues that the court abused its discretion in
modifying the conditions of his supervised release to include sex offender
treatment because the court failed to consider whether such treatment was
necessary to facilitate his transition back into society, which is the primary goal of
supervised release, and there was no evidence that it would facilitate this transition.
We generally review the district court’s decision on a motion to modify the
conditions of supervised release for abuse of discretion. See United States v.
Serrapio, 754 F.3d 1312, 1318 (11th Cir. 2014) (reviewing modification of
conditions of probation, under 18 U.S.C. § 3563, for an abuse of discretion);
United States v. Zinn, 321 F.3d 1084, 1087 (11th Cir. 2003) (noting that we review
the district court’s sentence of supervised release for abuse of discretion).
However, where a defendant raises a sentencing argument for the first time on
appeal, we review for plain error. United States v. Heath, 419 F.3d 1312, 1314
(11th Cir. 2005) (reviewing an unpreserved argument as to modification of
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supervised release for plain error); United States v. Aguillard, 217 F.3d 1319, 1320
(11th Cir. 2000).
The plain error standard is applicable here because Defendant did not raise
in the district court the specific issue he now raises here. There is a difference
between arguing, as Defendant did before the district court, that the court lacked
the authority to modify the conditions of supervised release and arguing, as he does
now, that the court abused its discretion in imposing the particular modified
condition because it had failed to consider a particular fact or factor. Under plain
error review, we will reverse where there is “(1) an error (2) that is plain and (3)
that has affected the defendant’s substantial rights; and . . . (4) the error seriously
affects the fairness, integrity, or public reputation of judicial proceedings.” United
States v. Madden, 733 F.3d 1314, 1322 (11th Cir. 2013). “An error is not plain
unless it is contrary to explicit statutory provisions or to on-point precedent in this
Court or the Supreme Court.” United States v. Schultz, 565 F.3d 1353, 1357 (11th
Cir. 2009).
Pursuant to § 3583, after the consideration of certain 18 U.S.C. § 3553(a)
factors, 1 a district court may
1
The § 3553(a) factors to be considered in modifying the conditions of supervised release
include: (1) the nature and circumstances of the offense; (2) the defendant’s history and
characteristics; (3) the need to provide adequate deterrence; (4) the need to protect the public;
(5) the need to provide the defendant with educational or vocational training, medical care, or
other correctional treatment; (6) the kinds of sentence and the sentencing range established for
the defendant’s offense, (7) any pertinent policy statements; (8) the need to avoid unwarranted
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modify, reduce, or enlarge the conditions of supervised release, at any
time prior to the expiration or termination of the term of supervised
release, pursuant to provisions of the Federal Rules of Criminal
Procedure relating to the modification of probation and the provisions
applicable to the initial setting of the terms and conditions of post-
release supervision.
18 U.S.C. § 3583(e)(2). Rule 32.1 of the Federal Rules of Criminal Procedure
requires that, before modifying the conditions of supervised release, the district
court must first hold a hearing at which the individual has the right to counsel and
an opportunity to make a statement and present any mitigating information.
Fed.R.Crim.P. 32.1(c)(1).
In imposing (or modifying) a term of supervised release, the district court
may order special conditions that: (1) are reasonably related to the nature and
circumstances of the offense, history and characteristics of the defendant, the need
for adequate deterrence, the need to protect the public, and the need to provide the
defendant with needed training, medical care, or correctional treatment in an
effective manner; (2) involve no greater deprivation of liberty than is reasonably
necessary; and (3) are consistent with any pertinent policy statements issued by the
sentencing commission. 18 U.S.C. § 3583(d)(1)-(3); see also U.S.S.G. § 5D1.3(b).
The special conditions need not be related to each applicable § 3553(a) factor;
rather, each factor is an independent consideration to be weighed. United States v.
sentence disparities; and (9) the need to provide restitution. 18 U.S.C. §§ 3553(a)(1), (a)(2)(B)-
(D), (a)(4)-(7) and 3583(e)(2).
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Bull, 214 F.3d 1275, 1278 (11th Cir. 2000). When a defendant has been convicted
of a “sex offense,” the Sentencing Commission recommends that the district court
impose as a special condition the requirement that the defendant “participate in a
program approved by the United States Probation Office for the treatment and
monitoring of sex offenders.” U.S.S.G. § 5D1.3(d)(7)(A), p.s.
Defendant has failed to demonstrate that the district court plainly erred when
it modified his conditions of supervised release to include a mental health program
specializing in sex offender treatment. The district court is statutorily allowed to
modify the conditions of supervised release after holding a hearing as required by
Rule 32.1, considering certain § 3553(a) factors, and ensuring that the modified
conditions are consistent with the requirements applicable to all conditions of
supervised release. See 18 U.S.C. § 3583(e)(2). The district court did just that in
this case. Specifically, after a hearing, the court identified Defendant’s history and
characteristics, his need for treatment, and the public’s need to be protected from
him as the § 3553(a) factors supporting the court’s requirement that he participate
in sex offender treatment. The court also determined that such a condition was
consistent with the statutory purposes of sentencing.
Upon review of the record in this case, we discern neither plain error nor an
abuse of discretion in the district court’s imposition of the modified condition of
supervised release. As to the former, Defendant has directed us to no on-point
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precedent from this Court or the Supreme Court and to no explicit statutory
provision that would have prohibited the district court’s decision. See Schultz, 565
F.3d at 1357. As to whether the court abused its discretion, Defendant was
convicted of a serious sex offense. He lured a child to his home, had the child get
nude, photographed the child, and then electronically transmitted those images
overseas.2 Sex offender treatment and monitoring is recommended by the
Sentencing Guidelines for such an offense. See U.S.S.G. § 5D1.3(d)(7)(A), p.s.
Defendant’s post-conviction behavior further indicates his continuing failure
to accept responsibility for his crime and suggests little inclination on his part to
mend his ways. While incarcerated, Defendant twice declined sex offender
treatment. Then, he falsely denied that he had ever committed the sexual offense
to which he pled guilty. Also while in prison, Defendant befriended other sex
offenders. These actions, which relate to Defendant’s history and characteristics,
raise great concern about the need to protect the public from his future crimes.
Defendant’s denial of responsibility for his admitted crimes weighs greatly against
his potential rehabilitation and suggests a likelihood that he might commit further
sex crimes from which the public needs to be protected. See McKune v. Lile, 536
U.S. 24, 47 (2002) (recognizing in the context of sex-offender treatment,
“[a]cceptance of responsibility is the beginning of rehabilitation”); United States v.
2
In addition, the record reflects that, prior to sentencing, Defendant attempted to threaten and
bribe the boy and his mother to prevent them from cooperating with authorities.
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Moran, 573 F.3d 1132, 1139 (11th Cir. 2009) (noting that sex offender treatment
could assist the defendant is avoiding similar misconduct, which would protect the
public); United States v. Mercado, 777 F.3d 532, 537-38 (1st Cir. 2015) (noting
that sex offender treatment has been linked to reduced recidivism and a condition
requiring sex offender treatment was reasonably related to rehabilitation and
protecting the public). In short, we conclude that the district court neither plainly
erred nor abused its discretion in requiring that Defendant undergo mental health
treatment that focused on treatment for sexual offenders.
III. CONCLUSION
For all the above reasons, the district court’s modification of Defendant’s
conditions of supervised release is AFFIRMED.
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