US v. Randy Kelly
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:06-cr-00119-1. Copies to all parties and the district court/agency. [998696900].. [11-4245]
Appeal: 11-4245
Document: 23
Date Filed: 10/11/2011
Page: 1 of 6
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4245
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
RANDY KELLY,
Defendant – Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.
Thomas E. Johnston,
District Judge. (2:06-cr-00119-1)
Submitted:
September 7, 2011
Decided:
October 11, 2011
Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Lou
Appellate
Defender,
Goodwin,
Assistant
Appellee.
Newberger, Federal Public Defender, Jonathan D. Byrne,
Counsel, David R. Bungard, Assistant Federal Public
Charleston, West Virginia, for Appellant.
R. Booth
II, United States Attorney, Monica K. Schwartz,
United States Attorney, Charleston, West Virginia, for
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Randy
Kelly
appeals
the
district
court’s
modifying the conditions of his supervised release.
order
On appeal,
he raises the issue of whether the district court abused its
discretion by imposing more restrictive conditions of supervised
release without sufficient proof from the Government that they
met the requirements of 18 U.S.C. § 3583(d) (2006).
District
courts
have
broad
latitude
We affirm.
to
impose
conditions on supervised release, and we review such conditions
only for abuse of discretion.
182, 186 (4th Cir. 2009).
United States v. Armel, 585 F.3d
In addition to a number of mandatory
conditions, the district court “may impose any other condition
it considers to be appropriate,” as long as it is reasonably
related to the factors referred to in 18 U.S.C. § 3583(d)(1)
(2006).
United States v. Dotson, 324 F.3d 256, 260 (4th Cir.
2003).
These factors include the nature and circumstances of
the offense, the history and characteristics of the defendant,
and
§§
protecting
the
public
from
further
crimes.
3553(a)(1), (a)(2)(C), 3583(d)(1) (2006).
18
U.S.C.
Moreover, special
conditions must involve no greater deprivation of liberty than
is reasonably necessary for achieving the goals enumerated in
§ 3553(a).
18 U.S.C. § 3583(d)(2); Armel, 585 F.3d at 186.
Kelly was convicted by a jury of knowingly traveling
in interstate commerce for the purpose of engaging in illicit
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sexual conduct, in violation of 18 U.S.C. § 2423(b) (2006), and
he was sentenced on November 2, 2006 to sixty-three months in
prison and ten years of supervised release.
Kelly traveled in
interstate commerce for the purpose of having sex with a twelveyear-old girl, and he had a prior conviction for attempted first
degree rape involving a twelve-year-old girl.
He was required
to register as a sex offender, and he reported that he did so.
He began his term of supervised release on November 19, 2010.
On January 25, 2011, the probation officer petitioned
the
district
court
to
modify
the
conditions
of
Kelly’s
supervised release to add the special conditions “outlined in
the
Standing
Conditions
of
Order
for
Probation
Adoption
and
of
Standard
Supervised
Offense Cases, entered on March 19, 2008.”
local
rule
provides
that
these
special
Release
and
in
Optional
All
Sex
The district court’s
conditions
should
be
included in the judgment “as appropriate in all cases where the
offense of conviction, or a defendant’s prior state or federal
conviction, would qualify as a ‘sex offense’ as defined in the
Sex
Offender
Registration
and
Notification
Act
(SORNA),
42
U.S.C. § 16911(5) or otherwise result in a reporting obligation
by the defendant to any state or federal sex offender registry.”
S.D.W. Va. R. Crim. P. 32.4.
The probation officer recommended
that all twenty-one special conditions be imposed on Kelly based
on his conduct in the instant offense as well as his prior
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conviction for attempted first degree rape, contending that the
special conditions would allow the probation officer to more
effectively supervise Kelly in the community.
At
his
modification
of
supervised
release
hearing,
Kelly argued that the district court was aware of all the facts
of the case when he was sentenced; he had done everything the
probation officer asked him to do during his supervised release;
and the probation officer had not identified any “concerns set
forth in this petition as to anything he’s doing now that would
warrant additional restrictions upon his life.”
He also noted
that two of the optional conditions “may cause him problems.”
Specifically, he would not be permitted to “loiter within one
hundred feet” of any school property, but he had to walk by a
high school to get to his job; and he would not be permitted to
possess a cell phone capable of creating images or video, but
the cell phone he currently possesses has “a camera on it.”
The
district
court
“considered
the
Section
3553(a)
factors” and imposed all twenty-one conditions requested by the
probation officer.
The court explained that Kelly had a prior
sex offense conviction involving a twelve-year-old girl, and “in
this case, he was attempting to have sex with a 12-year-old
girl.”
The court concluded that Kelly was “precisely the type
of defendant that these conditions were designed for.”
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On appeal, Kelly argues that the district court abused
its discretion because it had no basis beyond its local rule
upon which to modify his supervised release, and the Government
failed to meet its burden of proof to justify the conditions
because it “presented no evidence at the modification hearing
demonstrating why the new conditions were appropriate.”
Based on our review of the record, we conclude that
the district court did not abuse its discretion in modifying
Kelly’s supervised release conditions.
A district court may
modify the conditions imposed on a term of supervised release at
any time before the term has expired, even when the modification
is based only on evidence that was available at the original
sentencing and not on changed circumstances.
See United States
v. Begay, 631 F.3d 1168, 1172 (10th Cir.), cert. denied, 131 S.
Ct. 3010 (2011); United States v. Davies, 380 F.3d 329, 332 (8th
Cir. 2004); United States v. Allen, 2 F.3d 538, 539 (4th Cir.
1993).
In this case, the district court based its decision,
that modification was appropriate under both the local rule and
18 U.S.C. § 3583(d), on Kelly’s record.
required
to
present
any
evidence
of
The Government was not
new
conduct
justifying
modification, and Kelly fails to show the new conditions are not
reasonably related to pertinent § 3553(a) factors referred to in
§ 3583(d), or that they involve a greater deprivation of liberty
than is reasonably necessary to achieve the § 3553(a) goals.
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Accordingly, we affirm the district court’s order.
dispense
with
oral
argument
because
the
facts
and
We
legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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