United States v. Ford

FILED
United States Court of Appeals
Tenth Circuit

February 23, 2018
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v. No. 17-2073
STEVEN ANTHONY FORD,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. NO. 1:08-CR-00229-JAP-2)

Ryan J. Villa, The Law Office of Ryan J. Villa, Albuquerque, New Mexico, for
Appellant.

Marisa A. Ong, Assistant United States Attorney (James D. Tierney, Acting
United States Attorney, with her on the brief), Las Cruces, New Mexico, for
Appellee.

Before TYMKOVICH, Chief Judge, MORITZ, and EID, Circuit Judges.

TYMKOVICH, Chief Judge.

The district court sentenced Steven Ford to twenty years’ imprisonment for

various firearms-possession charges, followed by three years of supervised

release. Because of a sex-offense conviction nineteen years earlier, the district
court placed sex-offense-specific conditions on Ford’s term of supervised release.

Specifically, the court required Ford to undergo a sex-offender assessment, and if

recommended by the assessment, to submit to treatment which could include

polygraph questioning about his sexual past.

Ford contends on appeal that the district court abused its discretion because

the sex-offender conditions are not reasonably related to the sentencing factors in

18 U.S.C. § 3583. We hold that, notwithstanding Ford’s long custodial sentence

and new life sentence for a different crime, Ford’s challenge is ripe for review.

We further hold the district court did not abuse its discretion by requiring Ford to

undergo a sex-offender risk assessment as a condition of supervised release.

I. Background

In 1998, a Kansas state court sentenced Steven Ford to ten years’

imprisonment after he pleaded guilty to a charge of Indecent Liberties with a

Child. The victim was a thirteen-year-old girl.

While serving time for the sex-offense conviction as well as other crimes,

in 2007 Ford escaped from a maximum-security prison in Kansas. Law

enforcement found Ford in New Mexico and brought federal charges for (1) being

a felon in possession of a firearm; (2) being a fugitive in possession of a firearm;

and (3) possessing stolen firearms. A jury convicted Ford on all counts and the

court sentenced Ford to 360 months’ imprisonment.

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 In October 2016, Ford filed a 28 U.S.C. § 2255 motion seeking to vacate

his sentence, and in February 2017, the district court granted the motion. At the

re-sentencing hearing the following month, the district court sentenced Ford to

240 months’ imprisonment, to run consecutively to his state terms of

imprisonment in Kansas. The court also sentenced Ford to supervised release for

three years after completion of his custodial sentence.

Among several special conditions for Ford’s supervised release, the court

imposed two sex-offender-specific conditions. First, the court required Ford to

“undergo a sex offense-specific assessment to determine the level of risk for

sexual dangerousness, recidivism, and amenability to treatment and formulate

treatment recommendations if treatment is necessary.” R., Vol. I at 92. Second,

“[i]f recommended in the sex offense-specific assessment,” Ford “must begin

attending and participating in sex-offender treatment consistent with the

recommendations of the evaluation.” Id. Treatment can include “clinical

polygraph examinations” if they are “directed by the probation officer and/or

treatment provider.” Id.

Ford’s attorney objected to these special conditions. The offenses before

the court were the firearms convictions, he argued, and Ford’s only prior sex-

offense was in 1998—at this point nineteen years before—when Ford was only

seventeen years old.

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 The court explained the special conditions were “based on his prior sex

offense conviction engaging in sexual acts with a 13-year-old girl” and “further,

that there ha[d] been no indication that the defendant ha[d] ever received sex-

offender-specific treatment.” R., Vol. IV at 10. The conditions were “reasonable

and justified” because Ford had not undergone a “sex-offense-specific

assessment, largely because he’[d] been in prison virtually his entire life.” Id. at

12. Though it could “be that after the assessment nothing is recommended,” the

court thought it “appropriate to have the assessment done.” Id. at 13. The

conditions thus remained.

Ford appealed the reasonableness of the district court’s decision to attach

those two conditions to his supervised release. While this appeal was pending, in

a proceeding unrelated to this case, Ford pleaded guilty to the murder of his cell-

mate in an Oklahoma state prison and an Oklahoma court sentenced him to life in

prison without the possibility of parole.

II. Analysis

Ford challenges the sex-offender conditions because they are linked to a

crime that occurred long before his federal conviction. In addition to arguing the

conditions were reasonable, the government asks us to defer ruling on the

reasonableness of the conditions on ripeness grounds. Since Ford’s long terms of

incarceration mean he may never begin his period of supervised release, the

government argues that prudence counsels against reviewing Ford’s conditions of

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supervised release at this time. Before we reach the merits, then, we must address

the government’s argument that we should exercise our discretion under the

prudential ripeness doctrine and decline to review Ford’s challenge. 1

A. Prudential Ripeness

The government offers two reasons why this appeal is not ripe: Ford’s

twenty-year federal sentence and the fact that Ford recently pleaded guilty to

murder and received a sentence of life without parole. Neither reason leads us to

withhold review entirely. We conclude, however, that Ford’s challenge is ripe

only as it pertains to the condition requiring him to undergo sex-offender

assessment, not against the condition requiring him to submit to a polygraph

examination if directed to do so by his probation officer or treatment provider.

“A claim is not ripe for adjudication if it rests upon ‘contingent future

events that may not occur as anticipated or indeed may not occur at all.’” United

States v. Bennett, 823 F.3d 1316, 1326 (10th Cir. 2016), cert. denied, 137 S. Ct.

319 (2016) (quoting Texas v. United States, 523 U.S. 296, 300 (1998)). “Our

prudential ripeness doctrine requires us to balance” (1) “the fitness of the issue

1
All parties agree that Ford’s challenge presents a sufficiently ripe case or
controversy for Article III purposes. See United States v. Vaquera-Juanes, 638
F.3d 734, 736 (10th Cir. 2011) (a challenge to conditions of supervised release
“involves a genuine case or controversy because the judgment is a final court
order binding on an incarcerated defendant at the time of his appeal”).

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for judicial review” and (2) “the hardship to the parties from withholding review.”

Id.

As for “whether the issue is fit for judicial review, we focus on whether

determination of the merits turns upon strictly legal issues or requires facts that

may not yet be sufficiently developed.” Id. As for the “hardship to the parties,”

we “consider whether the parties face a direct and immediate dilemma” if we

withhold review. Id. at 1326–27 (internal quotation marks and citation omitted).

Criminal cases are “rarely” subjected to the “hurdle” of prudential ripeness,

United States v. White, 244 F.3d 1199, 1202 (10th Cir. 2001), but our court has

held that application of prudential ripeness doctrine to challenges involving

conditions of supervised release is appropriate in some circumstances. In

Bennett, for example, we declined to review a defendant’s challenge because the

sex-offender testing he protested against was contingent on his treatment

provider’s decision to order it and there was a significant chance that kind of

testing would no longer be in use when he was released. 823 F.3d at 1326–27.

But in United States v. White, 244 F.3d at 1203, and United States v.

Wayne, 591 F.3d 1326, 1329 n.1 (10th Cir. 2010), we noted that challenges to

conditions of supervised release are usually prudentially ripe for review even

before the conditions are actually enforced. The issues are typically “legal ones

that we can easily resolve without reference to concrete facts,” a defendant will

usually “experience a hardship if we do not resolve the issues,” and “the judicial

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system has an interest in dealing with [the] case as expeditiously as possible,

instead of waiting for a distinct appeal of a conviction for a violation of the

conditions of release.” Wayne, 591 F.3d at 1329 n.1 (10th Cir. 2010) (quoting

White, 244 F.3d at 1203).

These observations apply here. Ford’s challenge is a “legal one” that can

be “easily resolved.” And withholding review would place at least a slight

hardship on Ford. It is true that Ford may challenge the sex-offender assessment

term if he is charged with violating it and may also seek to modify his terms of

supervised release before they are applied. See 18 U.S.C. § 3583(e)(2); Fed. R.

Crim. P. 32.1(c). But to challenge the condition by violating it would risk re-

incarceration. And a request to modify the condition—unlike this direct

appeal—will require he proceed pro se or retain an attorney near the end of his

incarceration, see Fed. R. Crim. P. 32.1(c)(2)(B), not to mention the possibility

that Ford could be subjected to the challenged condition “before his request to

modify [is] considered by the district court,” United States v. Rhodes, 552 F.3d

624, 629 (7th Cir. 2009).

Although Ford’s challenge to these conditions of supervised release would

thus ordinarily be ripe on its face, the government puts forward two propositions

as to why Ford’s challenge is unfit for present review. First, that Ford’s twenty-

year custodial sentence places the enforcement of these conditions of supervised

release too far in the future for us to review them now. Second, that Ford’s recent

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sentence to life in prison without the possibility of parole renders any review of

Ford’s conditions of supervised release unripe unless and until that life sentence

is overturned.

1. The Length of the Custodial Sentence

As a general matter, a long custodial sentence is a factor weighing against

reviewing a condition that presents difficult legal or factual components. In

Bennett, we suggested that when a condition of supervised release will not be

applied for many years, the legal issue may not be entirely fit for review. 823

F.3d 1316, 1326–27 (10th Cir. 2016), cert. denied, 137 S. Ct. 319 (2016). “Even

if we remanded,” we said, “the district court would be faced with the nearly

impossible task of determining how effective [experimental] testing might be for

Bennett after completing his ten-year sentence. This factor weighs against

review.” Id. (emphasis added).

Other circuits have similarly considered the imminence of a defendant’s

release when evaluating the ripeness of challenges to conditions of supervised

release. See United States v. Medina, 779 F.3d 55, 67 (1st Cir. 2015) (“Moreover,

Medina was sentenced to thirty months in prison in July of 2013. That means he,

too, could be subject to the condition he challenges in the near term . . . .”);

Rhodes, 552 F.3d at 628 (“His term of supervision will begin only after his

release from imprisonment[,] which could not be sooner than eight and one-half

years after he enters the federal prison system upon the completion of his

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Wisconsin sentence . . . .”); United States v. Lee, 502 F.3d 447, 450 (6th Cir.

2007) (“In addition, Lee will not be released from prison until 2021—fourteen

years from now.”); United States v. Balon, 384 F.3d 38, 46 (2d Cir. 2004)

(“Because Balon will not begin his term of supervised release for three years, it is

impossible to evaluate at this time whether . . . [the condition] will occasion a

greater deprivation of his liberty than necessary . . . .”); United States v. Thomas,

198 F.3d 1063, 1065 (8th Cir. 1999) (“Thomas will not be subject to the condition

for nearly a decade, during which time any number of events may occur that

would make the condition irrelevant.”).

But the length of the custodial sentence is only one factor. As we said in

Bennett, overemphasis on this factor “would counsel against adjudication for most

conditions of supervised release where the defendant has a lengthy sentence.”

823 F.3d at 1327. And prudential ripeness is, of course, a discretionary doctrine.

Even when a case involves a lengthy custodial sentence, resolving the challenge

on direct review may be the simpler course—especially since defendants must

challenge their conditions of supervised release on direct appeal to keep their

claims of error from becoming time-barred. See United States v. Wayne, 591 F.3d

1326, 1334 (10th Cir. 2010) (“Ms. Wayne should have challenged the legal and

factual basis of the initial supervised release condition on direct appeal from the

sentencing court’s judgment. Because Ms. Wayne neglected to raise this claim at

that time, she is time-barred from doing so now.”); Fed. R. App. P. 4(b)(1)(A).

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We think the wiser course here is to review Ford’s challenge in spite of his long

term of incarceration.

2. The Unrelated Life Sentence

The government’s second ripeness argument centers around an entirely

different legal proceeding. In 2012, the Kansas Department of Corrections

transferred Ford to the Oklahoma Department of Corrections to complete his

sentence. In 2013, prison authorities found Ford’s cell-mate dead. While initially

believed to be a natural death, an autopsy revealed that Ford’s cell-mate was

strangled. Cleveland County, Oklahoma then charged Ford with first-degree

murder, and Ford faced a possible sentence of life in prison or life without parole.

At oral argument, counsel informed us that Ford recently pleaded guilty to the

murder and received a sentence of life without the possibility of parole.

Appellees have since supplemented the record with a copy of that judgment. 2

The government says this fact should preclude our review. Before Ford

pleaded guilty, the government argued the enforcement of the challenged

conditions were “contingent” on Ford not being sentenced to life in prison for this

other crime. Now that Ford has been sentenced to life without parole, the

government argues the enforcement of the conditions are “contingent” on the

reversal of this life sentence.

2
We GRANT appellee’s motion to supplement the record.

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 But this is not the kind of “contingency” we have considered before. When

we have found a condition of supervised release too “contingent” to be ripe, the

condition was, by its own terms, contingent on the decision of another person.

See Bennett, 823 F.3d at 1327. In Bennett, we held the defendant’s challenge to a

condition requiring him to be subject to a particular kind of sex-offender testing

was not ripe for review because that condition’s application was contingent on the

treatment provider’s say-so. Id. at 1327. Under the condition’s own terms, the

treatment provider had to “evaluate him and find that testing [was] appropriate”

before the requirement would be triggered. Id.

Unlike Bennett, the so-called “contingency” the government points to here

has nothing to do with the terms themselves. Nothing in the sex-offender

assessment term itself is contingent on the fate of Ford’s murder conviction.

Rather, the government is simply saying that we should find Ford’s challenge

“prudentially moot,” so to speak, because a new circumstance might prevent the

defendant from ever being released.

When we have withheld review for such a reason, we have demanded

substantial certainty that the defendant will never be subject to supervised release.

In United States v. Vaquera-Juanes, for example, we held the defendant’s

challenge unripe because it was certain the defendant would be removed from the

country as soon as he completed his term of incarceration. 638 F.3d 734, 737

(10th Cir. 2011). The record “fail[ed] to reveal any realistic possibility” the

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defendant would ever “be released.” Id. But we rejected the government’s

argument that the seventy-seven-year-old defendant’s challenge was not ripe

because he “could die in prison.” Id. at 736 n.1. While it was true the

defendant’s death in prison would mean his supervised release would never begin,

that possibility was not sufficiently certain and could potentially apply to “all

criminal defendants,” whatever their age or term of incarceration. Id.

Here, we decline to withhold judicial review. Ford’s murder conviction or

sentence may be subject to direct appeal or future habeas proceedings. Since the

case is now before us and can be resolved on the record we have, we think the

better course is to consider Ford’s appeal.

3. The Contingency of the Polygraph Term

But even though we choose to consider Ford’s appeal, his challenge is not

ripe with respect to all the conditions of supervised release. When a condition of

supervised release is, by its own terms, contingent on the decision of a different

actor, that condition is not ripe for immediate review. See Bennett, 823 F.3d at

1327; United States v. Carmichael, 343 F.3d 756, 761 (5th Cir. 2003) (the

challenged action was not ripe because it would only occur if another actor, the

Bureau of Prisons, failed to follow the law); Lee, 502 F.3d at 450 (holding

challenge unripe in part because “there [was] no guarantee” the treatment

provider would require the testing at issue); Rhodes, 552 F.3d at 629 (same); but

see United States v. Rock, 863 F.3d 827, 833 & n.1 (D.C. Cir. 2017) (challenge to

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condition was ripe even though defendant would only be subject to it if “directed

by the United States probation office”); United States v. Weber, 451 F.3d 552,

556–57 (9th Cir. 2006) (“A term of supervised release, even if contingent, is part

and parcel of the defendant’s sentence and can be challenged on direct appeal.”);

United States v. Zinn, 321 F.3d 1084, 1088–89 (11th Cir. 2003) (challenge to a

condition that was contingent on a treatment plan was ripe).

Here, the condition that Ford undergo a sex-offender risk assessment is not

contingent on anything: upon release, Ford must be assessed. But the condition

that Ford submit to polygraph testing is only required if (1) treatment is

“recommended in the sex-offense-specific assessment” and (2) polygraph testing

in particular is “directed by the probation officer and/or treatment provider.” R.,

Vol. I at 92. As the very terms indicate and Ford himself admits, Aplt. Reply at 6

n.2, the polygraph term is contingent. That term is therefore not ripe for review.

For this reason, we only review whether the district court abused its

discretion by requiring that Ford undergo sex-offender risk assessment upon

release.

B. The Reasonableness of the Assessment Condition

Since Ford objected to this “special condition of supervised release at the

time it [was] announced, this Court reviews for abuse of discretion.” United

States v. Dougan, 684 F.3d 1030, 1034 (10th Cir. 2012). “[W]e will not disturb

the district court’s ruling absent a showing it was based on a clearly erroneous

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finding of fact or an erroneous conclusion of law or manifests a clear error of

judgment.” United States v. Bear, 769 F.3d 1221, 1226 (10th Cir. 2014)

(alterations incorporated) (quoting United States v. Batton, 602 F.3d 1191, 1196

(10th Cir. 2010)).

“District courts have broad discretion to impose special conditions of

supervised release.” Bear, 769 F.3d at 1226. Under 18 U.S.C. § 3583(d), the

conditions must (1) “be reasonably related to the nature and circumstances of the

offense, the defendant’s history and characteristics, the deterrence of criminal

conduct, the protection of the public from further crimes of the defendant, or the

defendant’s educational, vocational, medical, or other correctional needs”; (2)

“involve no greater deprivation of liberty than is reasonably necessary to achieve

the purpose of deterring criminal activity, protecting the public, and promoting

the defendant’s rehabilitation”; and (3) “be consistent with any pertinent policy

statements issued by the Sentencing Commission.” Id. at 1226; see 18 U.S.C. §§

3553(a), 3583(d).

“The district court is required to give reasons on the record for the

imposition of special conditions of supervised release.” United States v. Hahn,

551 F.3d 977, 982 (10th Cir. 2008). While a “generalized statement of its

reasoning” suffices, id. at 982–83, “the explanation must be sufficient for this

court to conduct a proper review.” United States v. Martinez-Torres, 795 F.3d

1233, 1238 (10th Cir. 2015).

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 We have held that “[s]ex offender conditions of supervised release may be

imposed, even at sentencing for crimes which are not sex crimes, if supported by

§ 3583(d).” Bear, 769 F.3d at 1226. But “in such cases we would require a

stronger nexus . . . between the defendant’s history and characteristics and the

sex-offender-related conditions . . . especially . . . where the special conditions of

release implicate significant liberty interests.” Dougan, 684 F.3d at 1036.

Accordingly, “[p]rior sex offenses can be too temporally remote for

sex-offender conditions of supervised release to be reasonably related” to the

factors prescribed by § 3583. Bear, 769 F.3d at 1227. Yet “[t]here is no

bright-line rule for the outer limit of temporal remoteness, in part because district

courts must consider more than just the age of a defendant’s prior conviction.”

Id.

In this case, the district court decided that requiring Ford to undergo a sex-

offender risk assessment was appropriate under the statutory factors. It did so

because (1) Ford’s prior sex conviction involved a minor; (2) there was no record

of Ford having received sex-offender treatment; and (3) Ford had been

incarcerated almost the entire time since his sex crime conviction.

Ford argues the nineteen-year-old conviction for a sex offense he

committed when he was seventeen was “too temporally remote” to serve as the

sole basis for placing sex-offender-specific conditions of supervised release.

Ford further argues the prior offense was not a violent crime, there is no evidence

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that he has committed another sex offense, and his new conviction was not related

to a sex offense.

We are mindful of cases that look skeptically at the imposition of sex-

offender conditions based solely on prior crimes that are remote in time. See,

e.g., Dougan, 684 F.3d at 1034–35 (collecting cases, none of which upheld

conditions based on convictions more than seventeen years old); United States v.

Miller, 565 F. App’x 139, 142 (3d Cir. 2014) (unpublished) (collecting cases

finding previous sex offenses too old to justify sex-offender conditions). In

Dougan, we held that Dougan’s “seventeen-year-old conviction for a sexual

battery was too remote in time to be reasonably related to the imposition of

special sex-offender-related conditions” because “the government presented no

evidence that Dougan ha[d] a propensity to commit any future sexual offenses or

that Dougan has committed any sexual offense since 1994.” Dougan, 684 F.3d at

1037.

But even in Dougan, we recognized that “a seventeen-year-old sex crime

conviction could plausibly be reasonably related to the imposition of such

conditions, . . . [f]or example, if the defendant had an extensive history of

committing sex crimes that involved minors.” Id. at 1035. Ford’s prior

conviction, unlike Dougan’s, involved a minor.

In addition, the court in Bear thought the district court’s imposition of

sex-offender conditions was justified in part because “there was no record

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evidence of a prior assessment or treatment.” 769 F.3d at 1226. The same is true

here. As Ford’s own counsel admitted during sentencing, there was no record of

Ford having received treatment after his first offense. R., Vol. IV at 10.

And although there is no evidence that Ford has committed another sex

crime, Ford has been incarcerated almost continuously since his first sex

offense—leaving him few chances to relapse. The lack of newer sex offenses,

though having “some merit,” is not as “probative of his proclivities” as a

“similarly blemish-free period of time while at liberty.” Dougan, 684 F.3d at

1036. 3

On this record, we cannot say the district court abused its discretion or

manifested a clear error of judgment. Though Ford’s prior sex-offense conviction

was nineteen years old, the prior offense involved a minor, there was no record

that Ford had received treatment, and Ford spent the nineteen years between the

prior sex offense and the sentencing hearing behind bars—severely curtailing the

probative value of his subsequently “clean record.” See United States v. Johnson,

697 F.3d 1249, 1250 (9th Cir. 2012) (affirming sex-offender assessment condition

based on two decades-old sex offense in part because defendant’s prior

3
Ford also argues his twenty-year term of incarceration makes the
assessment requirement unreasonable because the assessment will not occur until
his release—which at the earliest will be almost forty years after his original sex
offense. But we have already held that a long time gap between sentencing and
the actual application of a condition does not make the district court’s decision an
abuse of discretion. See Hahn, 551 F.3d at 984.

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completion of treatment could not be confirmed); United States v. Brogdon, 503

F.3d 555, 565 (6th Cir. 2007) (upholding condition based on string of sex

offenses between twelve and twenty-two years old because some of the offenses

involved minors).

III. Conclusion

We therefore AFFIRM the district court’s special condition of supervised

release requiring Ford to undergo a sex-offender risk assessment upon release.

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