[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 3, 2008
THOMAS K. KAHN
No. 07-14724
CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 07-20214-CR-CMA
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SAMMY LEE CARPENTER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 3, 2008)
Before BIRCH, DUBINA and BLACK, Circuit Judges.
PER CURIAM:
Sammy Lee Carpenter appeals his sentence for sex trafficking of a minor
and enticing a minor to engage in prostitution, in violation of 18 U.S.C.
§§ 1591(a)(1), (2), 2422(a), (b). After Carpenter pled guilty, the district court
sentenced him to 180 months’ imprisonment and lifetime supervised release, and
imposed, inter alia, the following special terms of supervised release: (1) prior
written permission of the court before entering into any self-employment; (2) no
unsupervised contact with minors; and (3) no possession of “visual depictions of
minors or adults engaged in sexually explicit conduct.” Carpenter challenges
various issues related to his lifetime term of supervised release, and we address
them in turn.
I. LIFETIME SUPERVISED RELEASE
Carpenter first challenges his lifetime term of supervised release, asserting
(1) it violates the Eighth Amendment, (2) it creates an unwarranted sentencing
disparity among codefendants, and (3) the district court made no factual findings to
support a lifetime term of supervised release. According to the U.S. Code, the
district court may impose a term of supervised release for offenses under §§ 1591
and 2422 of any term of years not less than five, or life. 18 U.S.C. § 3583(k).
Pursuant to the Guidelines, a life term of supervised release may be imposed for
sex offenses, which include inter alia, violations of §§ 1591 and 2422. See
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U.S.S.G. § 5D1.2(b)(2) & comment. (n.1). The policy statement recommends a
statutory maximum term of supervised release for sex offense convictions. See
U.S.S.G. § 5D1.2, p.s.
Carpenter’s assertion, raised for the first time on appeal, that his life term of
supervised release violates the Eighth Amendment is reviewed for plain error. See
United States v. Moriarty, 429 F.3d 1012, 1018 (11th Cir. 2005) (reviewing
constitutional objection not raised before the district court for plain error). “When
neither the Supreme Court nor this Court has resolved an issue . . . there can be no
plain error in regard to that issue.” Id. at 1019. In Moriarty, we rejected the
argument, by a defendant who had pled guilty to several child pornography
offenses, that a term of lifetime supervised release constituted cruel and unusual
punishment. Id. at 1023-25. Because neither this Court nor the Supreme Court
have held a life term of supervised release for sex trafficking of a minor or enticing
a minor into prostitution violates the Eighth Amendment, and this Court has
affirmed a life term of supervised release for a similar sex offenses, Carpenter
cannot demonstrate any constitutional error that is plain.
Additionally, Carpenter’s argument his codefendants’ lesser terms of
supervised release create sentence disparities is meritless, as Carpenter’s offense
conduct, culpability, and convictions were significantly different than those of his
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codefendants. Carpenter (1) had sex with J.B. and first forced her to work as a
prostitute in 2003, when she was 14 years old; (2) recruited J.B., forced her into
prostitution, and directly controlled her during the instant offense conduct; and
(3) pled guilty to all four counts, including one count with which his codefendants
were not charged, one count of which his codefendants were acquitted, and two
counts for which the jury found his codefendants did not use force.
We also reject Carpenter’s contention the lifetime term of supervised release
was unreasonable because the district court made no factual findings to support a
lifetime term of supervised release. The district court imposed Carpenter’s term of
lifetime supervised release after stating it had considered the Guidelines and other
§ 3553(a) factors. See United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005)
(explaining a district court, in determining a reasonable sentence, must correctly
calculate the sentencing range under the Guidelines and then consider the factors
set forth in 18 U.S.C. § 3553(a)). Because he violated §§ 1591 and 2422,
Carpenter was statutorily eligible for a life term of supervised release. See 18
U.S.C. § 3583(k). The Guidelines recommend a life term of supervised release,
and the policy statement recommends the statutory maximum term, i.e., life, for
sex offenses. See U.S.S.G. § 5D1.2, p.s.
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Additionally, after his term of lifetime supervised release was imposed,
rather than requesting the court’s reasoning for imposing a lifetime term of
supervised release, Carpenter requested the district court include in his written
judgment that supervised release could be revisited depending upon the
defendant’s performance while under supervision. The district court did exactly
what Carpenter requested, and the Judgment reads: “The defendant may petition
the Court for early termination of supervised release.” Accordingly, Carpenter has
not met his burden in demonstrating the life term of supervised release, which was
statutorily permissible, recommended by the Guidelines policy statement, imposed
after consideration of the § 3553(a) factors, and is expressly allowed to be revisited
depending on Carpenter’s performance while under supervision, is unreasonable.
See Talley, 431 F.3d at 788 (11th Cir.2005) (“[T]he party who challenges the
sentence bears the burden of establishing that the sentence is unreasonable in the
light of both [the] record and the factors in section 3553(a).”).
II. SPECIAL CONDITIONS
Carpenter next contends the district court failed to make factual findings
justifying the: (1) “broad ban” on sexually explicit materials extending to material
involving adults; (2) the ban on unsupervised contact with any minor; and
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(3) restriction on self-employment. He asserts the “broad ban” on sexually explicit
materials extending to material involving adults violates the First Amendment.
A district court’s imposition of a special condition of supervised release
ordinarily is reviewed for an abuse of discretion, but where, as here, objections
were not preserved for appeal, we review for plain error. See United States v. Zinn,
321 F.3d 1084, 1087-88 (11th Cir. 2003) (noting objections to sentence of
supervised release not clearly stated in the district court are deemed waived, and
review is for plain error). The U.S. Code allows the district court to impose any
condition of supervised release it deems appropriate, so long as it comports with
the factors enumerated in § 3553(a). 18 U.S.C. § 3583(d). The Sentencing
Guidelines permit the sentencing court to impose any conditions of supervised
release that:
(1) are reasonably related to (A) the nature and circumstances of the
offense and the history and characteristics of the defendant; (B) the
need for the sentence imposed to afford adequate deterrence to
criminal conduct; (C) the need to protect the public from further
crimes of the defendant; and (D) the need to provide the defendant
with . . . correctional treatment in the most effective manner; and
(2) involve no greater deprivation of liberty than is reasonably
necessary for the purposes set forth above and are consistent with any
pertinent policy statements issued by the Sentencing Commission.
U.S.S.G. § 5D1.3(b). While the Guidelines recognize “a condition of supervised
release should not unduly restrict a defendant’s liberty, a condition is not invalid
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simply because it affects a probationer’s ability to exercise constitutionally
protected rights.” Zinn, 321 F.3d at 1089 (citation omitted).
With regard to the ban on possessing sexually explicit materials, neither this
Court nor the Supreme Court have held a lifetime condition prohibiting a similarly
situated sex offender from possessing any sexually explicit materials is overly
broad. Accordingly, the district court did not plainly err in prohibiting Carpenter
from possessing sexually explicit materials. See Moriarty, 429 F.3d at 1019.
Moreover, a special condition of supervised release is not invalid simply because it
affects an appellant’s ability to exercise constitutionally protected rights. See Zinn,
321 F.3d at 1089.
Carpenter only challenges the condition prohibiting unsupervised contact
with minors, but does not challenge the broader ban on any contact with minors.
Accordingly, he has abandoned any objection to the broader condition. See United
States v. Ford, 270 F.3d 1346, 1347 (11th Cir. 2001) (noting issues and
contentions not timely raised in briefs are deemed abandoned). To the extent his
claim survives, the district court did not commit plain error by imposing the
prohibition on unsupervised contact because the condition was reasonably related
to the § 5D1.3(b) factors and involved no greater deprivation of liberty than
reasonably necessary to meet the purposes of the factors. See U.S.S.G. § 5D1.3(b).
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Carpenter’s offense conduct involved an intimate relationship with a minor, taking
provocative pictures of her, and forcing her into prostitution at two different times.
Accordingly, prohibiting Carpenter from having unsupervised contact with minors
was reasonably related to the nature and circumstances of the offense and the
history and characteristics of the defendant, the need to afford deterrence, the need
to protect the public, and his correctional treatment. See U.S.S.G. § 5D1.3(b).
Finally, the district court did not commit plain error by requiring Carpenter
to obtain the court’s approval before entering into any self-employment, as he has
exhibited a pattern of “self employment” consisting of forcing women into
prostitution, and he admitted to not having formal employment for at least 20 years
prior to the offenses. Moreover, this condition involves no great deprivation of
liberty because he may obtain court approval for legitimate self-employment.
Accordingly, we affirm Carpenter’s sentence.
AFFIRMED.
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