USA v. Kenneth Ellington

Filing

Opinion issued by court as to Appellant Kenneth Lamar Ellington. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 16-10928

Date Filed: 03/08/2017

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-10928
Non-Argument Calendar
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D.C. Docket No. 4:96-cr-00020-WS-CAS-1

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KENNETH LAMAR ELLINGTON,
a.k.a. Kenneth Larimar Ellington,
a.k.a. Larimar Ellington,
a.k.a. Kevin Lewis Ellington,
a.k.a. Kenneth Lamarn Ellington,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
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(March 8, 2017)

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Before TJOFLAT, WILLIAM PRYOR, and JORDAN, Circuit Judges.
PER CURIAM:
Kenneth Ellington appeals the conditions of his supervised release, which
the district court ordered pursuant to 18 U.S.C. § 3583 as part of a new sentence it
imposed after finding that he had violated the previous terms of his supervised
release by committing two bank robberies. Mr. Ellington specifically challenges
the special condition that he allow his probation officer to search his computer and
other electronic devices. He argues that the district court abused its discretion
because such a special condition is unrelated to his criminal history and personal
characteristics, and not reasonably necessary for the protection of the public. After
reviewing the record and the parties’ briefs, we affirm.
I
We review the imposition of special conditions of supervised release for
abuse of discretion. See United States v. Moran, 573 F.3d 1132, 1137 (11th Cir.
2009). We 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.” Id.
(internal quotation marks omitted) (quoting United States v. Taylor, 338 F.3d 1280,
1283 (11th Cir. 2003)).
II

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Mr. Ellington argues that the district court abused its discretion when it
ordered, as a special condition of his supervised release, that he submit his
computer and other similar devices to searches by his probation officer. Such a
condition, he contends, is generally reserved for sex offenders. Mr. Ellington
concedes that the special condition could legally apply to his case under 18 U.S.C.
§ 3583(d) if it is “reasonably related” to certain factors set forth in 18 U.S.C.
§ 3553(a), but nonetheless maintains that the special condition is unreasonable
because his criminal history does not reflect a deviant use of technology and
therefore “involves [a] greater deprivation of liberty than is reasonably necessary,”
§ 3583(d)(2), to achieve the sentencing purposes set forth in § 3553(a). See Br. of
Appellant 12–13.
As part of supervised release, a district court may impose “any . . . condition
it considers to be appropriate” provided that such condition “(1) is reasonably
related to the factors set forth in [§§] 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 [§§] 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.” § 3583(d). See also U.S.S.G. § 5D1.3(b). We have explained that
special conditions need not be directly related to the particular offense and to each
enumerated § 3553(a) factor. See United States v. Bull, 214 F.3d 1275, 1276, 1278

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(11th Cir. 2000). “Instead, each factor is an independent consideration to be
weighed.” See id. at 1278.
We are not persuaded that the district court abused its discretion. Mr.
Ellington is correct that requiring an individual on supervised release to submit his
computers and electronic devices for searches by his probation officer is usually
reserved for sex offenders. See U.S.S.G. § 5D1.3(d)(7)(C). But Mr. Ellington, a
recidivist bank robber and habitual violator of conditions of supervised release, is
not the normal non-sex offender.
Mr. Ellington has committed violent and nonviolent offenses, some of which
suggest a propensity for flight, such as when he absconded from temporary release,
and repeatedly violated terms of supervised release. See D.E. 109; 117. When
given the benefit of the doubt, he has betrayed the trust placed in him. For
instance, the district court in this case previously found that Mr. Ellington violated
a condition of supervised release by driving under the influence, but decided not to
revoke his supervised release. See D.E. 90. Mr. Ellington rewarded this act of
leniency by committing two bank robberies roughly a year later. And that was not
the first time he had committed bank robberies while on supervised release or
parole. As the government points out, a close look at this criminal history raises
serious doubts about whether Mr. Ellington has ever successfully completed a term
of supervised release.

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Because “the threat of warrantless searches may deter wrongdoing before it
begins,” Castillo v. United States, 816 F.3d 1300, 1305 (11th Cir. 2016), the
district court did not abuse its discretion in imposing a special condition aimed at
curbing Mr. Ellington’s criminal propensity (which seems not to ebb even when
under supervised release).

Such a special condition reasonably reflects Mr.

Ellington’s extensive criminal history, see § 3553(a)(1), and furthers both general
and specific deterrence, see § 3553(a)(2). It also reflects the fact that the district
court here had previously imposed conditions of supervised release that failed to
prevent Mr. Ellington from recidivating. We certainly find it reasonable that the
third time around (recall his DUI violation that did not result in revocation), the
district court would find it necessary to impose more demanding conditions.
III
The district court’s efforts may be futile. Perhaps the added deterrence of
this special condition will accomplish nothing and Mr. Ellington will violate
supervised release again. But even then the condition may prove prescient—as we
have recognized, “a warrantless search can help catch a wayward participant.”
Castillo, 816 F.3d at 1305.
AFFIRMED.

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