USCA11 Case: 22-10327 Date Filed: 05/17/2022 Page: 1 of 10
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10327
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CEDRIC B. BOYKIN,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 1:21-cr-00022-LAG-TQL-1
____________________
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2 Opinion of the Court 22-10327
Before JORDAN, NEWSOM, and BRANCH, Circuit Judges.
PER CURIAM:
Cedric Boykin appeals his sentence of 12 months and one
day followed by five years’ supervised release imposed after he
pleaded guilty to one count of failure to register as a sex offender,
in violation of 18 U.S.C. § 2250(a). He argues that the district
court abused its discretion in imposing polygraph testing as a
special condition of his supervised release because it is a greater
deprivation of liberty than necessary and is not reasonably related
to his offense or his personal history and characteristics. After
review, we affirm.
I. Background
In 2003, Boykin was convicted in a jury trial in
Pennsylvania of involuntary deviant sexual intercourse, unlawful
contact with a minor, statutory sexual assault, indecent assault,
and corrupting a minor. As part of his sentence, he was required
to register as a sex offender under the Sex Offender Registration
and Notification Act (SORNA). He was required to update his
registration annually and to notify Pennsylvania authorities with
any change in residence or employment.
Boykin was released from state custody in 2010 and
between 2010 and 2020, he complied with the annual registration
requirements. But in 2021, he moved from Pennsylvania to
Georgia and failed to notify authorities or update his registration.
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In May 2021, an anonymous source reported to local authorities
in Georgia that they observed him peeking through the window
of another apartment in his complex and had looked Boykin up
online and determined that he was a sex offender. Local
authorities determined that Boykin was a sex offender and had
relocated to Georgia without providing the required notification
or updating his registration, and a warrant was issued for his
arrest.
A grand jury charged Boykin with failing to register as a sex
offender in violation of 18 U.S.C. § 2250(a). Boykin pleaded
guilty. His guidelines range was 12 to 18 months’ imprisonment
and a term of supervised release of five years to life. The United
States Probation Office recommended several special conditions
of supervised release, including, but not limited to, (1) that Boykin
participate in a mental health treatment program and a sex
offender treatment program, (2) that he not have contact with
minors unless another adult is present; (3) that his person, home,
vehicle, and electronic devices were subject to search; (4) that he
submit to polygraph testing to determine if he was in compliance
with the conditions of supervision and/or his treatment
programs; and (5) that he comply with SORNA requirements.
Boykin objected to the special conditions, arguing that the
failure to register as a sex offender is not a sex offense and
therefore the special conditions were not reasonably related to
the offense, his history or characteristics, and involved a greater
deprivation of liberty than is necessary to accomplish the goals of
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4 Opinion of the Court 22-10327
the sentencing factors set forth in 18 U.S.C. § 3553(a). He also
noted that he previously completed a sex offender treatment
program. As it related to polygraph testing, he argued that the
condition did not relate to any of the relevant sentencing factors,
was a greater deprivation of liberty than reasonably necessary,
and was inappropriate because failing to register as a sex offender
is not a sex offense.
The probation office responded that:
Polygraph testing is integral to providing effective
treatment and supervision strategies to ensure the
defendant’s rehabilitation, pursuant to 18 U.S.C.
§ 3553(a)(2)(D). The Guide to Judiciary Policy,
Volume 8, Part I, indicates criminal justice
supervision and sex offender specific treatment
interventions are only effective when used alongside
polygraph testing. Polygraph examinations provide
a continued incentive for an offender to be truthful
with the probation officer and treatment provider.
The results allow for an informed and effective
treatment plan to be generated because the officer
and provider have full knowledge of the offender’s
problems, current and historical. The Eleventh
Circuit Court of Appeals upheld polygraph testing as
it “helps ensure compliance with the conditions of
supervised release because probationers fear that
any false denials of violations will be detected.” U.S.
v. Taylor, 338 F.3d 1280, 1283 (11th Cir. 2003).
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22-10327 Opinion of the Court 5
At sentencing, Boykin argued that sex offender treatment
was inappropriate because failing to register as a sex offender was
not a sex offense, and he had already completed a sex offender
treatment program and the treatment provider had not
recommended additional treatment. Boykin argued that the
polygraph testing requirement was related to sex offender
treatment, and if he did not need sex offender treatment then the
polygraph testing requirement was inappropriate. The
government declined to respond to Boykin’s objections, stating it
was “leav[ing] it with the Court.”
The district court imposed a sentence of 12 months and
one day followed by five years’ supervised release. In light of
Boykin’s previous completion of a sex offender treatment
program, the district court ordered that Boykin should undergo
an assessment to determine whether additional treatment was
appropriate, as well as an assessment to determine whether
mental health treatment was appropriate. The district court
concluded that the polygraph testing condition was appropriate
“monitoring to make sure that we’re staying on the right path.”
Boykin now appeals the sentence, challenging only the polygraph
testing special condition of his supervised release.
II. Discussion
Boykin argues that the polygraph testing requirement is
greater than necessary to achieve the goals of § 3553(a) and is not
reasonably related to his conviction for a non-sex offense or his
history and characteristics. He maintains that there were other
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conditions in place to ensure that he would comply with the
requirements of his supervised release, such as the sex offender
and mental health assessments—and assuming treatment was
deemed appropriate, the probation office could work with the
providers to ensure he was complying with the supervision
conditions.1
“[W]e review the imposition of special conditions of
supervised release for abuse of discretion.” United States v.
Carpenter, 803 F.3d 1224, 1237 (11th Cir. 2015) (quotation
omitted).
[U]nder the abuse of discretion standard of review
there will be occasions in which we affirm the
district court even though we would have gone the
1
Boykin also argues for the first time on appeal that the polygraph testing
condition is “overbroad and vague . . . and allows for arbitrary and
discriminatory enforcement by the probation office.” “Where a defendant
fails to clearly state the grounds for an objection in the district court,
however, he waives the objection on appeal and we are limited to reviewing
for plain error.” See United States v. Carpenter, 803 F.3d 1224, 1237 (11th
Cir. 2015) (quotation omitted). A defendant must “articulate the specific
nature of his objection to a condition of supervised release so that the district
court may reasonably have an opportunity to consider it.” Id. (quotation
omitted). Because Boykin failed to make this specific argument in the district
court, we review only for plain error. Id. Boykin fails to cite any authority
to support his argument. Accordingly, he cannot satisfy the plain error
standard. See United States v. Lejarde–Rada, 319 F.3d 1288, 1291 (11th Cir.
2003) (stating that, when the explicit language of a statute or rule does not
specifically resolve an issue, plain error cannot exist in absence of precedent
from the Supreme Court or our Court directly resolving the issue).
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other way had it been our call. . . . As we have
stated previously, the abuse of discretion standard
allows a range of choice for the district court, so
long as that choice does not constitute a clear error
of judgment.
United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004) (en
banc) (quotation omitted). Thus, “[w]e will reverse only if we
have a definite and firm conviction that the district court
committed a clear error of judgment in the conclusion it
reached.” United States v. Moran, 573 F.3d 1132, 1137 (11th Cir.
2009) (quotation omitted).
The district court has the discretion to order special
conditions of supervised release that it deems appropriate
provided that the condition: “(1) is 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 the most effective manner; “(2) involves no greater
deprivation of liberty than is reasonably necessary” to achieve the
purposes of the § 3553(a) factors; and “(3) is consistent with any
pertinent policy statements issued by the Sentencing
Commission.” 18 U.S.C. § 3583; see also United States v. Zinn,
321 F.3d 1084, 1089 (11th Cir. 2003). The weight given to any
§ 3553(a) factor is a matter committed to the discretion of the
district court. See United States v. Williams, 526 F.3d 1312, 1322
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(11th Cir. 2008). “[I]t is not necessary for a special condition to be
supported by each factor enumerated in § 3553(a). Rather, each is
an independent consideration to be weighed.” Zinn, 321 F.3d at
1089.
Here, the district court did not abuse its discretion in
imposing the polygraph testing condition. This condition was
reasonably related to Boykin’s history and characteristics and the
nature and circumstances of his offense and promoted the goals of
deterrence and protecting the public. Although Boykin is correct
that the failure to register as a sex offender is not a sex offense, it
still “has everything to do with sex” because it is his sex offender
status that caused him to have to register in the first place. See
United States v. Barcus, 892 F.3d 228, 236 (6th Cir. 2018); see also
United States v. Hohag, 893 F.3d 1190, 1195 (9th Cir. 2018)
(“SORNA exists, in part, to address the concern that, when a sex
offender fails to register or to update his or her registry, the
offender may have done so as part of an effort, conscious or not,
to re-offend.”). Boykin was convicted in 2003 of several sexual
offenses related to a minor. Although he did not have any issues
after his release from custody in 2010, after his failure to register
in 2021, law enforcement received an allegation that he was
behaving inappropriately in his neighborhood. Given his criminal
history, his recent disregard for the registration requirements and
failure to notify authorities when he moved, and the recent
allegation of inappropriate behavior, we cannot say that the
district court committed a “clear error of judgment” in imposing
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22-10327 Opinion of the Court 9
polygraph testing to ensure Boykin’s compliance with the
conditions of his supervised release—including that he avoid
contact with minors except in the presence of another adult.
The fact that some of Boykin’s special conditions may be
repetitive in that they could serve the same function of ensuring
his compliance with the supervised release conditions does not
establish that the district court’s decision was a clear error of
judgment. And to the extent that Boykin argues that polygraph
testing per se deprives him of his liberty interests, we have
rejected that argument. United States v. Taylor, 338 F.3d 1280,
1284 (11th Cir. 2003); Zinn, 321 F.3d at 1090.
Furthermore, although we have never addressed in a
published opinion the propriety of polygraph testing as a special
condition for a failure-to-register conviction, we have upheld sex
offender conditions for non-sex offenses. For example, in Moran,
the defendant was convicted of being a felon in possession of a
firearm, and we upheld as special conditions of his supervised
release the requirements that he participate in mental health
treatment for sex offenders, register as a sex offender, and have
limited contact with minors, reasoning that those conditions were
appropriate given his prior sex offense conviction and his history
and characteristics. 573 F.3d at 1135, 1139–40. We also note that
two of our sister circuits have upheld as reasonable polygraph
testing conditions for a failure-to-register conviction. See Barcus,
892 F.3d at 237; United States v. Pabon, 819 F.3d 26, 30–33 (1st
Cir. 2016).
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Consequently, we are not left with a “definite and firm
conviction that the district court committed a clear error of
judgment in the conclusion it reached.” Moran, 573 F.3d at 1137
(quotation omitted). Accordingly, we affirm.
AFFIRMED.