US v. Brian Isdell

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:12-cr-00011-MOC-DCK-1 Copies to all parties and the district court/agency. [999516007].. [13-4660]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4660

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRIAN PAIGE ISDELL,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:12-cr-00011-MOC-DCK-1)

Argued:

October 29, 2014

Decided:

January 23, 2015

Before TRAXLER, Chief Judge, and WILKINSON and DUNCAN, Circuit
Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina, for Appellant.
William Michael Miller, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee.
ON BRIEF: Ross Hall
Richardson, Acting Executive Director, FEDERAL DEFENDERS OF
WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for
Appellant. Anne M. Tompkins, United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for
Appellee.

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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Brian Isdell pleaded guilty to failing to register as a sex
offender, see 18 U.S.C. § 2250(a), and was sentenced to a 21month term of imprisonment to be followed by a 15-year term of
supervised

release.

Isdell

appeals

the

term

of

supervised

release imposed by the district court, arguing that the court
erred in calculating the advisory range under the Sentencing
Guidelines
imposing

and

the

failed

15-year

to

adequately

term.

Finding

explain
no

its

reasons

reversible

error,

for
we

affirm.
I.
It is a crime under federal law to “knowingly fail[] to
register

or

update

a

registration

as

required

by

the

Sex

Offender Registration and Notification Act [42 U.S.C. § 16913 et
seq.].” 18 U.S.C. § 2250(a)(3).

The statutory penalties for

violating § 2250 include a 10-year maximum term of imprisonment,
see id. § 2250(a), and a term of supervised release of 5 years
to life, see 18 U.S.C. § 3583(k).
Under the Sentencing Guidelines, the recommended term of
supervised release for a crime with a 10-year maximum prison
term generally is 1-3 years.
18 U.S.C. § 3559(a)(3).

See U.S.S.G. § 5D1.2(a)(2) (2014);

If a statute mandates a longer term

than that recommended by the Guidelines, the term of supervised
release imposed cannot be less than the statutorily required
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term.

See

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id.

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§

And

5D1.2(c).

if

the

underlying

crime

qualifies as a “sex offense,” the upper end of the advisory
supervised-release range is life.

See id. § 5D1.2(b)(2).

At the time of Isdell’s sentencing, the Guidelines defined
“sex offense” as
(A) an offense, perpetrated against a minor, under (i)
chapter 109A of title 18, United States Code; (ii)
chapter 109B of such title; (iii) chapter 110 of such
title, not including a recordkeeping offense; (iv)
chapter 117 of such title, not including transmitting
information about a minor or filing a factual
statement about an alien individual; (v) an offense
under 18 U.S.C. 1201; or (vi) an offense under 18
U.S.C. 1591; or (B) an attempt or a conspiracy to
commit any offense described in subdivisions (A)(i)
through (vi) of this note.
U.S.S.G. § 5D1.2, cmt. n.1 (2012) (emphasis added). 1

The statute

defining the failure-to-register crime at issue in this case, 18
U.S.C. § 2250, is the only statute contained in chapter 109B of
Title 18.

If a violation of § 2250 qualifies as a sex offense

under this definition, then the upper end of Isdell’s advisory
Guidelines range was life.
The

PSR

prepared

in

anticipation

of

Isdell’s

sentencing

indicated that Isdell’s advisory supervised-release range was 5
years to life.

Neither Isdell nor the government filed any

written objections to the PSR, and counsel for Isdell stated at

1

As we will discuss, this portion of the Guidelines has
since been amended.

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the outset of the sentencing hearing that he had no objections
to the PSR.
During

the

sentencing

hearing,

the

government

questioned

whether Isdell’s offense qualified as a sex offense under the
Guidelines.

Counsel

for

the

government

noted

that

the

Department of Justice had previously taken the position that
failure to register was a sex offense, but that the Department
had

recently

changed

its

views

and

determined

registration offense was not a sex offense.

that

a

The government did

not explain the basis for the Department’s initial position, nor
did

it

Regarding

explain
the

why

the

appropriate

Department
term

in

had

this

changed

case,

the

its

view.

government

requested that the court vary upward and impose a 15-year term
of supervised release.
At no time during sentencing did counsel for Isdell argue
that

a

failure-to-register

Guidelines’

definition

of

a

offense
sex

did

offense.

not
And

satisfy
while

the

counsel

requested a time-served term of imprisonment, counsel did not
seek any particular term of supervised release, nor did he argue
against the 15-year term sought by the government.
The

district

court

ultimately

sentenced

Isdell

months’ imprisonment and 15 years’ supervised release.
supervised release, the court stated,

5

to

21

As to

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I do believe that the supervised release term could be
five years to life.
So I don’t think it’s just five
years, I think it [is] five years to life.
I
appreciate what the Justice Department is saying.
I
think I have every right to go up on supervised
release.
J.A. 40.
II.
On appeal, Isdell argues that the district court erred in
determining
his

the

sentence

Guidelines’

is

therefore

supervised-release
procedurally

range

unreasonable.

and

that

Isdell

contends that the failure to register under 18 U.S.C. § 2250 is
not a “sex offense” because the registration offense was not
“perpetrated against a minor,” as required by the Guidelines.
U.S.S.G. § 5D1.2, cmt. n.1 (2012).

And because his offense is

not a sex offense, Isdell argues that the supervised-release
range recommended by the Guidelines is not a “range” but is
instead a single point – 5 years, the minimum term authorized by
18 U.S.C. § 3583(k).
Because

this

argument

is

raised

appeal, we review for plain error only. 2

2

for

the

first

time

on

To obtain relief under

Despite his failure to object, Isdell contends that the
issue is preserved (and thus subject to harmless-error review)
because the government raised the issue below.
We disagree.
Assuming without deciding that an objection or argument made by
the government could be sufficient to preserve an appellate
issue for a criminal defendant, the government’s argument is not
sufficient in this case.
The government explained the
Department of Justice’s change of position in general terms
(Continued)
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plain-error review, Isdell bears the burden of establishing that
“the district court erred, that the error was plain, and that it
affected his substantial rights.

Even when this burden is met,

we have discretion whether to recognize the error, and should
not

do

so

unless

the

error

seriously

affects

the

fairness,

integrity or public reputation of judicial proceedings.”

United

States v. Aidoo, 670 F.3d 600, 611 (4th Cir. 2012) (citation and
internal quotation marks omitted).
The first two prongs of the plain-error standard are met
here.

After sentencing in this case, the Sentencing Commission

amended the commentary to § 5D1.2 to clarify that failure-toregister violations under 18 U.S.C. § 2250 are not sex offenses.
See U.S.S.G. § 5D1.2, cmt. n.1 (2014).
effect

to

that

amendment

on

appeal.

We are obliged to give
See

United

States

v.

Collins, ___ F.3d ___, 2014 WL 6871409, at *6 (4th Cir. Dec. 8,
2014); see also Henderson v. United States, 133 S. Ct. 1121,
1130-31 (2013) (error is “plain” for purposes of plain-error

without ever bringing to the district court’s attention the
issue raised on appeal – whether a violation of the sex-offender
registration requirements is a crime perpetrated against a
minor.
See, e.g., United States v. Zayyad, 741 F.3d 452, 459
(4th Cir. 2014) (“To preserve an argument on appeal, the
defendant must object on the same basis below as he contends is
error on appeal.
Because he must state
the specific ground
upon which he objects below, Fed. R. Evid. 103(a), an objection
on one ground does not preserve objections on different grounds
on appeal.” (internal quotation marks omitted)).

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review as long as the error is plain at the time of appellate
review).
not

a

Thus, as Isdell argues, his offense of conviction is

sex

offense,

and

the

release “range” is 5 years.

Guidelines’

advisory

supervised-

See Collins, 2014 WL 6871409, at

*7; U.S.S.G. § 5D1.2 cmt. n.6 (2014).
Although the district court is deemed to have committed
plain error by concluding that the Guidelines supervised-release
range was 5 years to life, that error does not warrant reversal
in

this

case.

As

noted

above,

Isdell

bears

the

burden

of

establishing not only the existence of plain error, but also
that the plain error affected his substantial rights.

He cannot

satisfy that burden in this case.
“In the sentencing context, the [substantial-rights] prong
of the plain-error standard is satisfied if there is a nonspeculative basis in the record to conclude that the district
court would have imposed a lower sentence upon the defendant but
for the error.”

United States v. McLaurin, 764 F.3d 372, 388

(4th Cir. 2014) (internal quotation marks omitted).

Here, the

record does not show that the district court would have imposed
a shorter term of supervised release but for the error.

If

anything, the record establishes just the opposite – that the
district court was prepared to impose the same term even if the
Guidelines range were 5 years.

See J.A. 34 (“I don’t want any

problem, if I have the authority to go up on the supervised
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release, I don’t mind doing that.”); J.A. 40 (“I think I have
every right to go up on supervised release.”).

Because Isdell

cannot satisfy his burden under plain-error review, we affirm
the term of supervised release imposed by the district court. 3
III.
When imposing sentence, the district court must consider
the advisory Guideline range and the arguments of the parties in
light of the factors set forth in 18 U.S.C. § 3553(a), and the
court

must

select

what

it

believes

to

be

the

appropriate

sentence based on an “individualized assessment” of the facts of
the

case.

“Regardless

Gall
of

v.

United

whether

the

below,

or

within-Guidelines

record

an

individualized

States,
district

U.S.

court

sentence,

assessment

facts of the case before it.”

552

it

based

38,

imposes
must
on

50
an

place
the

(2007).
above,
on

the

particular

United States v. Carter, 564 F.3d

325, 330 (4th Cir. 2009) (internal quotation marks omitted).
Isdell

contends

that

the

district

court

failed

to

sufficiently explain the reasoning behind the supervised-release

3

Facing a similar issue, the court in United States v.
Collins, ___ F.3d ___, 2014 WL 6871409 (4th Cir. Dec. 8, 2014),
vacated a 10-year supervised-release term and remanded for
reconsideration, see id. at *7. Our application of plain-error
review, which requires the defendant to prove prejudice, rather
than harmless-error review, which requires the government to
prove the absence of prejudice, distinguishes this case from
Collins.

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term it selected, particularly given the extent of the variance
it imposed.

We disagree.

Although the district court did not

tick off each of the § 3553(a) factors or explicitly tie its
sentence to the relevant factors, the statements made by the
district

court

during

the

sentencing

established the basis for the sentence.

hearing

sufficiently

As the record shows,

the district court was concerned about protecting the public
given Isdell’s potential for violence, as revealed by the nature
of the sex offense that led to the registration requirement, and
his history of non-compliance with terms of supervision.

See

J.A. 36 (“How am I going to protect folks if he’s cutting these
things [an ankle monitor] off?

What am I supposed to do?”);

J.A. 39 (“I don’t know how well we’re going to keep up with
him.”).

While the court’s comments during sentencing were not

exhaustive, we nonetheless believe they sufficiently reveal the
basis for the 15-year term of supervised release imposed by the
district court.
IV.
Accordingly, for the foregoing reasons, we hereby affirm
the sentencing judgment of the district court.
AFFIRMED

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