UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-30101
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DOUGLAS TURCK COENEN,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Middle District of Louisiana
_________________________________________________________________
February 18, 1998
Before POLITZ, Chief Judge, GARWOOD, and BARKSDALE, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
In appealing his sentence for transmission of child
pornography, Douglas Turck Coenen challenges the special conditions
of supervised release requiring community notification of his
conviction, claiming also that the district court did not give
notice that it might impose them. We AFFIRM.
I.
Having pled guilty to four counts of transmission of child
pornography, in violation of 18 U.S.C. § 2252(a)(1), Coenen was
sentenced to 33 months imprisonment and three years supervised
release on each count, to be served concurrently. In addition to
the standard conditions of supervised release, the district court
imposed, inter alia, special conditions. This was done pursuant to
a recommendation from the social worker who interviewed Coenen
during the pre-sentence investigation, and found that he met the
diagnostic criteria of pedophilia (“recurrent, intensely sexually
arousing ... behaviors generally involving ... children ... that
occur over a period of at least 6 months” that “could be said to
cause clinical[] impairment in social and occupational, or other
important areas of functioning”).
The special conditions are:
3. As directed by the probation officer, the
defendant shall give notice of the crime for
which he was convicted and his name and
address to:
a. The chief of police in the
municipality and the sheriff of the parish in
which the defendant will reside. The
defendant shall register with the sheriff of
the parish in which he will reside.
b. All people who live within a one
mile radius (rural area), and a three square
block area (urban/suburban area) of
defendant’s residence after release.
c. The superintendent of the school
district where the defendant will reside. The
superintendent will notify the principal of
any school he deems necessary of this
information.
Above notifications must be given by mail
within 30 days of release on supervision
and/or within 30 days of setting up residence
in that locale and shall be at the defendant’s
own expense.
4. As directed by the probation officer, the
defendant shall publish notice in the official
journal of the governing authority of the
parish where the defendant plans to reside on
two separate days within the 30 days of
setting up residence in that local[e]. The
notice shall be published at the defendant’s
own expense.
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5. As directed by the probation officer, the
defendant shall give notice as deemed
appropriate, such as signs, handbills, bumper
stickers, clothing labels, and door-to-door
oral communication. The notice shall be at
the defendant’s own expense.
The notification conditions were based on the provisions of
the Louisiana Registration of Sex Offenders Act, LA. R.S. 15:542,
which requires a convicted sex offender to register with law
enforcement authorities and to provide notice of his crime of
conviction, name, and address to neighbors and the superintendent
of the school district in which he resides, for a period of ten
years following release from imprisonment. LA. R.S. 15:542(B)(1).
It is undisputed that the Louisiana Act does not apply to Coenen as
a federal offender.
II.
Coenen challenges the community notification conditions. In
that regard, he also contends that he was entitled to notice that
the court was considering imposing them.
Special conditions of supervision are reviewed for abuse of
discretion. Along this line, “[s]ection 5D1.3 of the Guidelines
gives a sentencing court broad discretion to impose conditions on
supervised release if they are reasonably related to (1) the nature
and circumstances of the offense, (2) the need for adequate
deterrence of further criminal conduct, and (3) the need to protect
the public.” United States v. Mills, 959 F.2d 516, 519 (5th Cir.
1992) (emphasis added).
The foregoing language from Mills reflects that, in addition
to certain mandatory conditions of supervised release, sentencing
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courts are authorized to “order, as a further condition of
supervised release”, the discretionary conditions of probation set
forth in 18 U.S.C. § 3563(b)(1)-(10) and (12)-(20) (which do not
provide for any community notification requirements), as well as
“any other condition it considers to be appropriate”,
to the extent that such condition
(1) is reasonably related to the factors
set forth in section 3553(a)(1),(a)(2)(B),
(a)(2)(C), and (a)(2)(D);
(2) involves no greater deprivation of
liberty than is reasonably necessary for the
purposes set forth in section 3553(a)(2)(B),
(a)(2)(C), and (a)(2)(D); and
(3) is consistent with any pertinent
policy statements issued by the Sentencing
Commission pursuant to 28 U.S.C. § 994(a)....
18 U.S.C. § 3583(d).
Thus, a special condition must be reasonably related to “the
nature and circumstances of the offense and the history and
characteristics of the defendant”, 18 U.S.C. § 3553(a)(1); and must
involve no greater deprivation of liberty than is reasonably
necessary in the light of the need “to afford adequate deterrence
to criminal conduct”, 18 U.S.C. § 3553(a)(2)(B), “to protect the
public from further crimes of the defendant”, 18 U.S.C. §
3553(a)(2)(C), and “to provide the defendant with needed
educational or vocational training, medical care, or other
correctional treatment in the most effective manner”, 18 U.S.C. §
3553(a)(2)(D).
The Sentencing Guidelines track the statute, see U.S.S.G. §
5D1.3; and a policy statement sets forth recommended conditions of
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supervised release, see U.S.S.G. § 5B1.4 (p.s.). Among those
recommended “standard” conditions is the following:
[A]s directed by the probation officer, the
defendant shall notify third parties of risks
that may be occasioned by the defendant’s
criminal record or personal history or
characteristics, and shall permit the
probation officer to make such notifications
and to confirm the defendant’s compliance with
such notification requirement.
U.S.S.G. § 5B1.4(a)(13)(p.s.). This condition was included among
the boilerplate standard conditions of supervised release included
in the judgment against Coenen.
A.
In maintaining that the district court should have given him
notice that it might require community notification, Coenen
analogizes to such notice requirements for an upward departure, and
for victim notification which, pursuant to 18 U.S.C. § 3555, may be
imposed upon a defendant found guilty of fraud.
1.
Before considering whether Coenen was entitled to notice, we
first must determine whether he properly presented this issue in
district court. The pre-sentence investigation report (PSR) noted
that the social worker who had examined Coenen had recommended that
he be required to “comply with the sexual offender notification
regulations of the State of Louisiana”, but Coenen did not object
to that portion of the PSR. Likewise, at the sentencing hearing,
he did not object when the court announced that it “intend[ed] to
invoke the current laws that the State of Louisiana has regarding
notification of neighbors of this offense”. Nor did he object at
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sentencing when the court stated: “I think for the protection of
the children that the sexual offender notification regulations of
the State of Louisiana need to be invoked in this particular case
once this defendant is released from custody.” Finally, he did not
object when the district court imposed the sentence, including the
special conditions at issue.
On the other hand, Coenen’s counsel apparently tried to make
an objection after the district court completed imposition of the
sentence. He stated, “Your Honor, let me if I can --”; but the
court said “Let me just finish”. Accordingly, after the court
advised Coenen of his right to appeal, counsel made the following
objection:
Your Honor, let me register an objection at
this time to your imposition of the notice
requirements to the extent that Part V,
sentencing options, paragraph seventy through
eighty of the presentence [report], did not
reflect that and to the extent that they are
not specifically authorized by the Guidelines
or any other federal statutes that I know of
and that Your Honor is tracking the state’s
statutes, we would object to it on the grounds
that it is a sentence that is greater than
that authorized by the Guidelines or statutes,
or -- and that is a condition that is not
authorized by the Guidelines or statutes.
(Emphasis added.) However, counsel did not then request a
continuance in order to locate and/or present evidence in
opposition to the conditions. After allowing the Government to
respond, the court stated why it was imposing the notification
requirement.
Arguably, this objection was not sufficient to apprise the
district court of Coenen’s position that Rule 32 requires notice
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similar to that required for an upward departure. On the other
hand, neither prior to, nor when it announced its intention to
impose the notification requirement, did the court ask for
additional evidence or for comments on that point. (As discussed
supra and infra, the evidence before the district court included
the PSR and the social worker’s report.) And, when the requirement
was imposed, counsel did note that, in the PSR section for
sentencing options, there was no suggestion for community
notification.
In short, the comment by Coenen’s counsel can be fairly read
as being equivalent to “no notice” and that it is required.
Accordingly, we find, dubitante, that he did sufficiently object.
2.
Federal Rule of Criminal Procedure 32(c)(1) provides, in
pertinent part: “At the sentencing hearing, the court must afford
counsel for the defendant and for the Government an opportunity to
comment on the probation officer’s determinations and on other
matters relating to the appropriate sentence”. In Burns v. United
States, 501 U.S. 129, 138 (1991), the Court held: “before a
district court can depart upward on a ground not identified as a
ground for upward departure either in the presentence report or in
a prehearing submission by the Government, Rule 32 requires that
the district court give the parties reasonable notice that it is
contemplating such a ruling.” (Emphasis added.) In addition, the
“notice must specifically identify the ground on which the district
court is contemplating an upward departure.” Id. at 139.
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The Court reasoned that an interpretation that did not require
notice of the grounds under consideration for upward departure
would be “inconsistent with Rule 32's purpose of promoting focused,
adversarial resolution of the legal and factual issues relevant to
fixing Guidelines sentences”. Id. at 137. Similarly, in United
States v. Pankhurst, 118 F.3d 345, 357 (5th Cir.), cert. denied,
___ U.S. ___, 118 S. Ct. 630 (1997), we held that the Government
has the same right to pre-sentencing notice of a downward departure
that Burns requires for an upward departure.
As noted, Coenen asserts that the notification conditions are
analogous to an order requiring a defendant convicted of fraud or
intentionally deceptive practices to give notice and explanation of
the conviction to victims, pursuant to 18 U.S.C. § 3555. In that
regard, 18 U.S.C. § 3553(d) requires pre-sentencing notice:
Prior to imposing an order of notice pursuant
to section 3555, ... the court shall give
notice to the defendant and the Government
that it is considering imposing such an order.
Upon motion of the defendant or the
Government, or on its own motion, the court
shall—
(1) permit the defendant and the
Government to submit affidavits and written
memoranda addressing matters relevant to the
imposition of such an order;
(2) afford counsel an opportunity in open
court to address orally the appropriateness of the
imposition of such an order; and
(3) include in its statement of reasons
pursuant to subsection (c) specific reasons
underlying its determinations regarding the
nature of such an order.
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18 U.S.C. § 3553(d). Coenen maintains that similar notice should
be required when a district court is contemplating imposition of
community notification conditions such as those imposed upon him.
Neither party has cited, nor have we found, any cases directly
on point. In United States v. Mills, our court considered whether
pre-sentencing notice of the imposition of occupational
restrictions on supervised release was required under Burns and
Rule 32. The defendant in Mills pleaded guilty to charges of mail
fraud and altering odometers on cars sold from his dealership. 959
F.2d at 517. The district court imposed the following occupational
restriction as a special condition of supervised release:
That defendant shall not own or operate a new
or used car business during the term of
supervised release. Defendant shall seek
employment in an occupation other than
automobile sales and shall not accept any
employment without approval of the probation
officer. Defendant shall close his current
business ... within 60 days of the entry of
this order.
Id. at 518. Mills contended that imposition of this occupational
restriction constituted an upward departure, entitling him to pre-
sentencing notice; he also asserted that the restriction was not
necessary to protect the public from continued unlawful conduct.
Id.
Our court concluded that the occupational restriction was not
an upward departure from the Guidelines, requiring pre-sentencing
notice to the defendant, but was, instead, “simply an exercise of
the district judge’s authorized discretion to impose additional
terms of probation or supervised release”. Id. at 519. The court
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distinguished Burns on the basis that it involved a situation “in
which the court[s] imposed a term of confinement exceeding the
maximum range set forth in the Guidelines’ sentencing table.” Id.
We do not believe it to be in the interest of
justice or the efficient administration of the
sentencing process to extend the notice
requirements of Burns to cases where the
defendant’s term of confinement is not at
stake. Requiring trial judges to give prior
notice of their intent to impose an
occupational restriction would only further
encumber the lengthy sentencing process
without adding anything to defendant’s
existing procedural protections.
Id. (emphasis added).
Along this line, our court reasoned that it would be
“impractical to require a sentencing judge to give detailed notice
of an intended sentence before” the sentencing hearing and that,
“[i]f either side is dissatisfied with the proposed sentence,
counsel can request a continuance for further preparation”; if a
continuance is denied, “counsel can move for reconsideration or
modification after the sentence is imposed, 28 U.S.C. § 2255, and
failing success at the district court level, can appeal.” Id. In
sum, our court upheld the condition requiring Mills to seek
employment in an occupation other than automobile sales, but
concluded that the record did not warrant imposition of the
condition requiring Mills to sell his business. Id. at 519-20.
In United States v. Edgin, 92 F.3d 1044 (10th Cir. 1996),
cert. denied, ___ U.S. ___, 117 S. Ct. 714 (1997), the Tenth
Circuit considered the propriety of a special condition of
supervised release preventing the defendant from contacting his
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son. Id. at 1048. The defendant challenged the condition for the
first time on appeal. Because the condition was imposed after the
court had resolved all of the objections to the PSR and after the
defendant had made a final statement, and the defendant was given
no notice of or opportunity to comment on the condition, the court
concluded that the defendant’s “attack on the special condition was
not waived by his failure to assert it below”. Id. at 1049 (citing
Burns, 501 U.S. at 134, and FED. R. CRIM. P. 32). It is not clear
what type of notice would be required under Edgin, because the
court addressed the lack of notice only in the context of whether
the defendant had preserved his challenge to the imposition of the
special condition. However, it may well be that the court’s
citation to Burns and Rule 32 indicates that it believed that at
least some pre-sentencing notice was required.
The Government asserts that Mills is controlling, citing our
court’s conclusion that it is not “in the interest of justice or
the efficient administration of the sentencing process to extend
the notice requirements of Burns to cases where the defendant’s
term of confinement is not at stake.” Mills, 959 F.2d at 519. At
issue in Mills, however, was an occupational restriction that is
quite dissimilar to — indeed, far less invasive than — the
community notification conditions at issue. Arguably, the “term of
confinement is not at stake” language is dicta; it was not
necessary in order to dispose of the specific item in issue. See
F.D.I.C. v. Enventure V, 77 F.3d 123, 125 (5th Cir. 1996)
(statements which are not necessary to the holding of a case are
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dicta); United States v. Nixon, 777 F.2d 958, 966 (5th Cir. 1985)
(same). In any event, the Guidelines make specific provisions for
occupational restrictions such as the one imposed in Mills, see
U.S.S.G. § 5F1.5, and the commentary to § 5F1.5 does not
contemplate or require pre-sentencing notice.
Likewise, as noted, the Guidelines policy statement recommends
as a standard condition of supervised release the notification of
third parties of “risks that may be occasioned by the defendant’s
criminal record or personal history or characteristics”, U.S.S.G.
§ 5B1.4(a)(13) (p.s.). But, that general statement does not
expressly contemplate imposition of far-reaching conditions of
community notification such as those imposed in this case.
Section 5F1.4 is the only other pertinent provision in the
part of the Guidelines dealing with “Sentencing Options”. It
provides that the court may order the defendant to pay the cost of
giving the earlier mentioned 18 U.S.C. § 3555 notice to victims (as
discussed, § 3555 provides that, in cases where a defendant has
been convicted of an offense involving fraud or intentionally
deceptive practices, the court may order the defendant to “give
reasonable notice and explanation of the conviction” to victims of
the offense). The commentary to § 5F1.4 states that, “[i]f an
order of notice to victims is under consideration, the court must
notify the government and the defendant”, as required by 18 U.S.C.
§ 3553(d). U.S.S.G. § 5F1.4, comment.
We agree with Coenen that the notification conditions at
issue, which include not only notice to law enforcement officials,
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neighbors, and school officials, but also, if the probation officer
so directs, signs, handbills, bumper stickers, clothing labels, and
door-to-door oral communication, are far more analogous to an
upward departure or to the § 3555 notice to victims that may be
imposed in cases in which the defendant has been convicted of
fraud, both of which require pre-sentencing notice, than to the
occupational restriction imposed in Mills, which does not require
such notice. And, because the type of notification provisions
imposed in this case are not expressly contemplated by the
Guidelines, we believe that requiring pre-sentencing notice will
serve to greatly further Rule 32's “purpose of promoting focused,
adversarial resolution of the legal and factual issues relevant to
fixing Guidelines sentences”. See Burns, 501 U.S. at 137; see also
United States v. Edgin, 92 F.3d at 1048 (remanding case for
district court to state reasoning for sua sponte imposition of
special condition prohibiting defendant from contacting his son,
because special condition implicates defendant’s liberty interest
in maintaining his familial relationship with his son).
Accordingly, Coenen was entitled, under Rule 32 and Burns, to
receive reasonable pre-sentencing notice that such notification
provisions were under consideration.
3.
The Government responds, in the alternative, that Coenen had
actual knowledge of the possibility that the court would order
community notification and, therefore, had ample notice/opportunity
to be heard. In Burns, the Court did not address the question of
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the timing of reasonable notice, or specify a uniform procedure for
how such notice was to be given. See Burns, 501 U.S. at 135, 139
n.6. It stated, however, that “[i]n the ordinary case, the
presentence report or the Government’s own recommendation will
notify the defendant that an upward departure will be at issue and
of the facts that allegedly support such a departure.” Id. at 135.
As emphasized supra, the Court held that notice was required before
a district court “can depart upward on a ground not identified ...
either in the presentence report or in a prehearing submission by
the Government”. Id. at 138 (emphasis added).
Our court, as well as others, have interpreted Burns to
require notice either from the court, the PSR, or a pre-hearing
submission by the Government. See Pankhurst, 118 F.3d at 357
(“Under Burns, Rule 32 requires that, before a district court may
depart upward, the defendant must have notice, either in the PSR
(see Rule 32(b)(4)(B)), or in a pre-hearing submission by the
Government, or from the court.”); United States v. Singleton, 49
F.3d 129, 135 (5th Cir.) (defendant received sufficient notice of
possible departure where both PSR and government’s motion for
upward departure “identified the grounds for departure upon which
the district court ultimately relied”), cert. denied, ___ U.S. ___,
116 S. Ct. 324 (1995); United States v. Doucette, 979 F.2d 1042,
1047 n.4 (5th Cir. 1992) (PSR’s “reference to criminal history as
a potential ground for upward departure ... clearly satisfies the
notice requirement set out in Burns”); United States v. Ewing, 129
F.3d 430, 436-37 (7th Cir. 1997) (“Of course, a presentence report
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listing specific factors that may warrant an upward departure
provides adequate notice.”).
As noted, in the section entitled “Offender Characteristics”,
the PSR reported that the examining social worker had recommended
that Coenen be required to comply with Louisiana’s sexual offender
notification regulations. But, the section entitled “Sentencing
Options” (paragraphs 70-80, referred to, and relied upon, by Coenen
in his district court objection) does not contain any reference to
notification conditions in the subsection discussing the statutory
and Guidelines provisions for supervised release.
We question whether the PSR’s reporting of the social worker’s
recommendation was adequate to give Coenen reasonable notice that
community notification was being considered by the district court.
But, we need not so decide; the record contains other information
indicating that Coenen had actual knowledge of the possibility that
those conditions would be imposed.
The social worker’s report reflects that Coenen was informed
of the report and the social worker’s findings on 22 November 1996
(more than a month prior to the 3 January sentencing hearing). In
addition, the probation officer informed Coenen in a telephone
conversation on 5 December 1996 that it was possible that the
notification requirements would be imposed; she also discussed this
possibility with Coenen’s attorney (replaced before sentencing by
another) several times during the pre-sentence investigation.
Thus, even assuming that the PSR was insufficient to notify
Coenen that the notification conditions were under consideration,
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Coenen and his attorney were given notice through these other
means. Such actual knowledge satisfies the “reasonable notice”
requirements of Rule 32 and Burns.
B.
Turning to the merits, it bears repeating that, pursuant to 18
U.S.C. § 3583(d), a special condition of supervised release must be
reasonably related to “the nature and circumstances of the offense
and the history and characteristics of the defendant”, 18 U.S.C. §
3553(a)(1); and must involve no greater deprivation of liberty than
is reasonably necessary in the light of the need “to afford
adequate deterrence to criminal conduct”, 18 U.S.C. §
3553(a)(2)(B), “to protect the public from further crimes of the
defendant”, 18 U.S.C. § 3553(a)(2)(C), and “to provide the
defendant with needed educational or vocational training, medical
care, or other correctional treatment in the most effective
manner”, 18 U.S.C. § 3553(a)(2)(D). (Emphasis added.)
Coenen asserts that the damage to his reputation and the
invasion of his right to privacy which accompanies notification
implicates a protected liberty interest; that notification will
subject him to harassment, possible vigilante reprisals, loss of
employment, and banishment; and that the conditions effectuate a
far greater deprivation of that liberty interest than is reasonably
necessary for purposes of deterrence, protection of the public, or
rehabilitation. In this regard, he maintains that the imposition
of the conditions was an abuse of discretion, claiming in support
that his conviction for transmitting child pornography on the
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Internet was not a violent offense and that there is no evidence
that he has ever engaged in, or had any interest in engaging in,
sexual activity with children.
We conclude that the district court did not abuse its
discretion in determining that the notification conditions are
reasonably related to Coenen’s history and characteristics, and the
nature and circumstances of his offenses. Coenen told the agents
who searched his residence that he began collecting and trading
child pornography approximately seven months earlier, in January
1996; that he had uploaded into and downloaded child pornography
from several news groups on the Internet; and, for that relatively
short period of time, that he had 1,000 or more images of child
pornography on his computer hard drive.
In addition, Coenen admitted to the interviewing social worker
that he found children in photographs as attractive as adults; and
that he continued to have an interest in sexually explicit
photographs of children. (Militating against this is his telling
the probation officer during the pre-sentence investigation that he
was getting bored with the photographs and had planned, before the
search warrant was executed, to delete the material from his hard
drive. But, as discussed infra, this could mean that, no longer
satisfied with pictures, Coenen would start molesting or otherwise
assaulting children.) Although the social worker reported that
Coenen “has displayed no behaviors, that I have seen clinically, in
what may be termed a predatory pedophile”, he also stated that
Coenen “does seem to have many features associated with the
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Diagnostic & Statistical Manual, IV (DSM,IV) diagnostic criteria of
Pedophilia”. As stated, the social worker concluded that Coenen
“indicate[d] a recurrent, intensely sexually arousing behaviors
[sic] generally involving children that occur over a period of at
least 6 months ... [and] could be said to cause clinical[]
impairment in social and occupational, or other important areas of
functioning”.
Although the social worker reported that Coenen had no access
to children, “does not baby-sit any children nor does he like to”,
and that he did not seem to have offended any children, Coenen
testified at sentencing that a woman who had a small female child
had lived with him and that he had “baby-sat other children over
the years”. We note also that agents executing the search warrant
at Coenen’s residence seized a pair of girl’s underwear; Coenen
told them that he did not know where it came from. Coenen also told
them that he expected them to find one or two photographs of a nude
child, which had been taken in his residence, but that he did not
take them and did not know how they were in his home. The
photographs were not located during the search.
We conclude also that the district court did not abuse its
discretion in determining that the conditions involve no greater
deprivation of liberty than is reasonably necessary in the light of
the sentencing goals of deterrence and protection of the public.
The district court found that Coenen “has very serious mental
problems and I believe the public-at-large, particularly young
children, are at risk when they are around him”; that it did not
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know whether Coenen’s “boredom” with pictures meant that he would
start molesting children, but could not take that chance; and that,
“if something is not done, he is going to hurt some children”. The
court stated that the community notification conditions were
necessary “for the protection of the children ... once this
defendant is released from custody”, and concluded that it “would
be an injustice to a lot of potential injured children that this
man could come in contact with” not to require notification.
Coenen asserts that the notification conditions will serve
primarily to shame, humiliate, and further isolate him, rather than
furthering his reintegration back into society to become a
productive citizen. These concerns have been recognized by others.
See Artway v. Attorney General of New Jersey, 81 F.3d 1235, 1266
(3d Cir. 1996) (such notification may subject defendants to
ostracism, “possible vigilante reprisals and loss of employment”);
Doe v. Pataki, 940 F. Supp. 603, 625-26 (S.D.N.Y. 1996) (such
notification is “the modern-day equivalent of branding and
shaming”, which may result in “banishment of sex offenders both
literally and psychologically”, making it “difficult if not
impossible for them to reintegrate into society”), aff’d in part
and rev’d in part, 120 F.3d 1263 (2d Cir. 1997).
On the other hand, as the Government points out, the
conditions require the release of limited information: Coenen’s
name, address, and the crime for which he was convicted —
transmission of child pornography, not assaults on children. In
this regard, his name and conviction are already matters of public
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record. And, as the Government points out, much of the stigma and
community reactions feared by Coenen would not be directly
attributable to the conditions of his supervised release, but to
the crime he committed. See Doe v. Pataki, 120 F.3d 1263, 1280-81
(2d Cir. 1997); E.B. v. Verniero, 119 F.3d 1077, 1099-1100 (3d Cir.
1997). Moreover, although Coenen will be required to publish
notice in the newspaper following his release, the conditions
require direct notification by mail only to law enforcement
officials and to individuals whose proximity to Coenen may make
their children particularly vulnerable.
Additional notification (such as signs, handbills, bumper
stickers, clothing labels, and door-to-door oral communication) is
required only if the probation officer deems it to be appropriate
and necessary. Toward that end, the district court stated: “[I]f
things work out and [Coenen] goes through therapy and he is out on
probation and he is doing everything he is supposed to do, and the
probation officer believes that this is no longer necessary, you
can always modify these conditions”. As no such additional
notification has yet been required, and we have no indication any
will be, the propriety of any particular form or manner of
additional notification, or the circumstances which might justify
it, is not now before us.
In sum, the notification conditions are consistent with the
Guidelines policy statement, which contemplates notification to
“third parties of risks that may be occasioned by the defendant’s
criminal record or personal history or characteristics”. U.S.S.G.
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§ 5B1.4(a)(13)(p.s.). In the light of the nature and circumstances
of the offense and the social worker’s report concerning Coenen’s
personal history and characteristics, the district court did not
abuse its broad discretion in finding that children might be at
risk, and that, therefore, community notification is necessary to
protect them from such risks.
III.
For the foregoing reasons, the sentence is
AFFIRMED.
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United States v. Coenen
Court: Court of Appeals for the Fifth Circuit
Date filed: 1998-02-18
Citations: 135 F.3d 938
Copy CitationsCombined Opinion