IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 19, 2008
No. 07-51385
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
KELLY ALLEN JONES, SR
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:07-CR-1616-ALL
Before GARZA, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Kelly Allen Jones, Sr., pleaded guilty to attempting to coerce and entice a
minor to engage in sexual activity and was sentenced to 10 years of
imprisonment and 10 years of supervised release. Jones argues that the 10-year
supervised release term is unreasonable. He argues that this “extraordinarily
long” term exceeds that required to effectuate Congress’s sentencing goals stated
in 18 U.S.C. § 3553(a). He contends that his steady employment history, his
personal characteristics, his limited criminal history, and the circumstances
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
No. 07-51385
surrounding his offense all show that a 10-year term of supervised release is
greater than necessary to meet the sentencing goals, making his term of
supervised release unreasonable. He notes that he had no prior history of
engaging in such behavior and that no pornographic materials were found
among his possessions or on his computer. He contends that this offense is an
anomaly and not one he is likely to engage in again.
Because Jones did not object to his term of supervised release in the
district court, we review for plain error. See United States v. Peltier, 505 F.3d
389, 391-92 (5th Cir. 2007) (plain error review applied to unraised issues
concerning the reasonableness of a sentence), cert. denied, 128 S. Ct. 2959
(2008); see also United States v. Allison, 447 F.3d 402, 405 (5th Cir. 2006) (plain
error applied because defendant first objected to term of supervised release on
appeal). Plain error review “requires considerable deference to the district court
and erects a more substantial hurdle to reversal of a sentence than does the
reasonableness standard.” Peltier, 505 F.3d at 391.
Statutorily, the authorized term of supervised release was a minimum of
five years and a maximum of life. See 18 U.S.C. § 3583(k). The Sentencing
Guidelines provide for a term of supervised release of five years to life for this
sex offense. U.S.S.G. § 5D1.2(b)(2) and (c). The policy statement contained in
§ 5D1.2(b) recommends the statutory maximum term of supervised release for
a sex offense, which in this case is life. § 5D1.2, p.s.; Allison, 447 F.3d at 405.
In Allison, we held that a term of supervised release for life was
reasonable for a defendant convicted of production and possession of child
pornography offenses. 447 F.3d at 405-07. We noted that Congress and the
Sentencing Commission “intended to impose life terms of supervised release on
sex offenders” due to the “high rate of recidivism in convicted sex offenders,
especially child sex offenders.” Id. at 405-06. In United States v. Armendariz,
451 F.3d 352, 358-62 (5th Cir. 2006), we vacated the district court’s sentence
which did not include a term of supervised release for a defendant convicted of
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No. 07-51385
an offense under 18 U.S.C. § 2422(b), the same offense for which Jones was
convicted. We held that the district court’s failure to impose a term of
supervised release was unreasonable because it failed to account for the
Guidelines or to account for the statutory factors of the need to deter criminal
conduct, to protect the public, and to provide correctional treatment to the
offender. Id. at 359-61.
Jones’s arguments concerning his employment history, his personal
characteristics, and his limited criminal history do not address the reasons why
Congress and the Sentencing Commission have recommended supervised release
for life for child sex offenders, namely recidivism and the need for treatment of
sexual disorders. See Armendariz, 451 F.3d at 361; Allison, 447 F.3d at 405-07.
It was not plain error for the district court to impose a term of supervised release
of 10 years. See Allison, 447 F.3d at 405-07 (term of supervised release for life
reasonable); see also United States v. Presto, 498 F.3d 415, 420-21 (6th Cir. 2007)
(term of supervised release for life reasonable for defendant convicted of
receiving child pornography), cert. denied, 128 S. Ct. 2958 (2008).
AFFIRMED.
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