US v. Charles Dougla

Filing

AMENDED OPINION filed amending and superseding opinion dated 03/09/2017. Originating case number: 3:16-cr-00017-NKM-1 Copies to all parties.. [16-4615]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-4615

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CHARLES D. DOUGLAS, a/k/a Chris Davis,
Defendant - Appellant.

Appeal from the United States District Court for the Western District of Virginia, at
Charlottesville. Norman K. Moon, Senior District Judge. (3:16-cr-00017-NKM-1)

Argued: January 24, 2017

Decided: March 9, 2017
Amended: March 9, 2017

Before NIEMEYER, TRAXLER, and DIAZ, Circuit Judges.

Affirmed by published opinion.
Niemeyer and Judge Diaz joined.

Judge Traxler wrote the opinion, in which Judge

ARGUED: Lisa M. Lorish, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Charlottesville, Virginia, for Appellant. Nancy Spodick Healey, OFFICE OF THE
UNITED STATES ATTORNEY, Charlottesville, Virginia, for Appellee. ON BRIEF:
Larry W. Shelton, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Roanoke, Virginia, for Appellant. John P. Fishwick, Jr., United States

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Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for
Appellee.

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TRAXLER, Circuit Judge:
Defendant-Appellant Charles Douglas pled guilty to failure to register as a sex
offender under the Sex Offender Registration and Notification Act (“SORNA”), in
violation of 18 U.S.C. § 2250(a). He was sentenced to 15 months in prison, followed by
five years of supervised release. On appeal, Douglas challenges the district court’s
imposition as a special condition of supervised release that he undergo a sex-offender
evaluation. For the reasons that follow, we affirm.
I.
Douglas was convicted in Virginia state court of aggravated sexual abuse in
August 1994, arising out of the sexual abuse of a minor from January 1990 through
February 1992, when his victim was between 10 and 12 years old. Douglas was in his
early thirties at the time. He was sentenced to ten years in prison, suspended to one year,
plus two years of supervised probation. Douglas participated in a sex-offender treatment
program in 1995, while he was on state probation. As a result of this state conviction,
Douglas was also required to register as a sex offender for life. Douglas was arrested for
failure to register as a sex offender in Virginia in December 1999, but the charges were
dropped in April 2000. He last registered as a sex offender in October 2001, also in
Virginia.
In 2002 and again in 2010, the Virginia State Police obtained arrest warrants for
Douglas based on his failure to register as a sex offender.

However, Douglas

successfully evaded detection and arrest by assuming a false name and moving across
state lines. He resided at various times in Washington, D.C., Kentucky, and Texas. In
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October 2015, the United States Marshals Service attempted to arrest Douglas in
Kentucky when they became aware that he was residing there with an adult woman and
using the alias “Chris Davis.” According to their interview of the woman, Douglas had
no identification, no driver’s license, and no birth certificate during his time in Kentucky,
and he avoided working for employers that required identification or paperwork. When
Douglas learned that the Marshals had come to his home to arrest him, he fled to Texas,
where he was finally located and arrested in February 2016. He was indicted in the
Western District of Kentucky for failure to register as a sex offender in violation of 18
U.S.C. § 2250(a), but consented to a transfer of his case to the Western District of
Virginia, where he pled guilty without a plea agreement.
A presentence report (“PSR”) was prepared setting forth a guideline imprisonment
range of 15-21 months for the SORNA conviction, plus a statutorily required term of
supervised release of not less than five years. In addition to the standard conditions of
supervised release not challenged here, the PSR recommended that the court impose 16
special “Sex Offender Conditions” for supervised release provided for in Standing Order
2013-04 of the Western District of Virginia. Douglas objected to the imposition of 13 of
the 16 conditions, arguing that his SORNA violation was not a sex offense and that his
prior conviction for aggravated sexual assault in 1994 was too remote in time to justify
the conditions.
The government agreed that Douglas’s prior sex offense conviction was remote in
time, but it argued that most of the sex-offender conditions were justified because “the
remoteness of the defendant’s sex offense is directly related to his efforts to avoid
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apprehension” and “there is no way to know whether the defendant poses a recidivism
risk.” J.A. 18. At a minimum, the government requested that the district court require
Douglas to submit to a sex-offender evaluation for the purpose of evaluating his risk to
the public and determining what, if any, other treatment or conditions were warranted to
serve the goals of sentencing.
The district court agreed. Douglas was sentenced to 15 months’ imprisonment,
plus five years of supervised release, with the special condition that he “submit to an
evaluation by a qualified mental health professional, approved by the probation officer,
who is experienced in the treatment of sexual offenders” and “take all medications
reasonably related to his condition, complete all treatment recommendations, and abide
by all rules, requirements, and conditions imposed by the treatment provider until
discharged from treatment by the provider.”

J.A. 39.

However, the district court

declined to impose the remaining 12 sex-offender conditions recommended by the PSR
and objected to by Douglas, opting instead to add the proviso that the probation officer
could “request modifications to the conditions of supervision as determined by the
assessment of [the] qualified mental health professional.” J.A. 39. 1
II.

1

The district court also imposed the three sex-offense conditions recommended
by the PSR that Douglas did not challenge. Specifically, Douglas is required to comply
with all federal, state, and local registration requirements; he is prohibited from
possessing, viewing, or using any child pornography materials, or knowingly entering or
remaining in any location where such materials are present; and he is required to obtain
his probation officer’s approval of his residence and employment situation.

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District courts are afforded “broad latitude to impose conditions on supervised
release,” which we review for abuse of discretion only. United States v. Armel, 585 F.3d
182, 186 (4th Cir. 2009). The court may impose any special condition that is “reasonably
related” to the statutory sentencing factors referenced in 18 U.S.C. § 3583(d)(1), which
include:

(1) “the nature and circumstances of the offense and the history and

characteristics of the defendant,” 18 U.S.C. § 3553(a)(1); and (2) “the need for the
sentence imposed . . . 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); see United States v. Dotson, 324 F.3d 256, 260 (4th Cir. 2003).
When imposing such conditions, the sentencing court must also ensure that the condition
“involves no greater deprivation of liberty than is reasonably necessary” to serve these
sentencing goals, 18 U.S.C. § 3583(d)(2), and that it “is consistent with any pertinent
policy statements issued by the Sentencing Commission,” 18 U.S.C. § 3583(d)(3); see
Dotson, 324 F.3d at 260-61.
“Sex offender conditions of supervised release may be imposed, even at
sentencing for crimes which are not sex crimes, if supported by § 3583(d).” United
States v. Bear, 769 F.3d 1221, 1226 (10th Cir. 2014). The “particular restriction does not
require an offense-specific nexus, but the sentencing court must adequately explain its
decision and its reasons for imposing it.” United States v. Worley, 685 F.3d 404, 407 (4th
Cir. 2012) (internal citation and quotation marks omitted). The “court must demonstrate
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that it considered the parties’ arguments and had a reasoned basis for exercising its own
legal decisionmaking authority.” United States v. Lynn, 592 F.3d 572, 576 (4th Cir.
2010) (internal quotation marks omitted).

The “statement of reasons is important

because it helps the sentencing process evolve, allows for meaningful appellate review,
and promotes the perception of fair sentencing.” Id. (internal citation, quotation marks
and alterations omitted)).
A.
Douglas first contends that the district court committed procedural error by failing
to adequately explain the basis for the condition requiring him to submit to a sex-offender
evaluation. We disagree.
The district court record contains the information necessary for us to conduct a
meaningful appellate review of the substantive reasonableness of the special condition.
See id.; Armel, 585 F.3d at 186. At the sentencing hearing, the district court explicitly
considered the remoteness of Douglas’s prior sex offense, mindful that it should not
“dwell” solely on the prior sex offense when evaluating whether the sex-offense
conditions of supervised release were warranted. J.A. 49. However, the district court
also shared the government’s concern about the 14-plus years of evasive actions that
Douglas took to avoid apprehension by law enforcement after he failed to register as a
sex offender. The district court then stated that it had “considered the factors noted in 18
U.S.C. [§]3553(a):

the defendant’s history, characteristics, and the nature and

circumstances of the offense, as well as the defendant’s prior sex conviction,” and
proceeded to address the sex offender-conditions recommended in the PSR. J.A. 60. In
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doing so, the district court explained that “the remoteness of [Douglas’s] conviction[] is
such that the Court should not assume that all of these [recommended] conditions, after
an assessment, be complied with,” and further noted that “otherwise, I think we would be
going into punishing the defendant for the original offense rather than what he is here for
today.” J.A. 62 (emphasis added). Having reviewed all of the relevant considerations,
the district court decided to only impose the limited condition that Douglas submit to a
sex-offender evaluation, explaining that “[t]he probation officer will [then] know what
the provider determined,” J.A. 61-62, and “can look [for] guidance from the sex offender
conditions” for further appropriate conditions. J.A. 62 (emphasis added). Accordingly,
we are satisfied that the district court adequately considered the parties’ arguments and
that the district court’s explanation, while brief, was sufficient to allow meaningful
appellate review of the substantive reasonableness of the challenged condition.
B.
Douglas next contends that the district court abused its discretion in imposing the
limited condition that he submit to a sex-offender evaluation, arguing that it is not
reasonably related to the sentencing factors set forth in §§ 3553(a)(1), (a)(2)(B),
(a)(2)(C), and (a)(2)(D), and that it involves a greater deprivation of liberty than
reasonably necessary in violation of § 3583(d)(2). Specifically, Douglas argues that his
1994 sex-offense conviction is too remote, standing alone, to justify the need for a sexoffender evaluation. As further support, Douglas points out that he completed a sexabuse treatment program in 1995 (during his two years of supervised probation for his
prior sex offense), and that his criminal record has been clean since then (with the
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exception of the 1999 arrest for failure to register and a 2002 arrest for driving while
suspended).
As the district court recognized, “[p]rior sex offenses can be too temporally
remote for sex-offender conditions of supervised release to be reasonably related to the
nature and circumstances of the offense, the defendant’s history and characteristics, the
deterrence of criminal conduct, the protection of the public from further crimes of the
defendant, or the defendant’s educational, vocational, medical or other correctional
needs.” Bear, 769 F.3d at 1227. For example, we have held that a 12-year-old sex
offense conviction, committed when the defendant was 21 years old, could not, “standing
alone,” justify special sex-offender conditions. Worley, 685 F.3d at 409. However,
“[t]here is no bright-line rule for the outer limit of temporal remoteness, in part because
district courts must consider more than just the age of a defendant’s prior conviction.”
Bear, 769 F.3d at 1227. That is precisely what the district court properly did in this case.
While Douglas is correct that his SORNA violation is not a "sex offense" for
purposes of imposing a term of supervised release under the Guidelines, see U.S.S.G. §
5D1.2, cmt. n.1, a SORNA violation is not wholly unrelated to the prior sex offense.
Indeed, the very purpose of SORNA is to “protect the community from the risks posed by
convicted sex offenders by requiring registration and then by providing notification” to
the public. United States v. Morales-Cruz, 712 F.3d 71, 75 (1st Cir. 2013); United States
v. Under Seal, 709 F.3d 257, 260 (4th Cir. 2013) (SORNA “was enacted ‘to protect the
public from sex offenders and offenders against children, and in response to the vicious
attacks by violent predators,’” [by] “‘establish[ing] a comprehensive national system for
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the registration of those offenders.’”) (quoting 42 U.S.C. § 16901); see also Smith v. Doe,
538 U.S. 84, 99 (2003) (noting with respect to analogous requirements under Alaska law,
that “[t]he purpose and the principal effect of notification are to inform the public for its
own safety, not to humiliate the offender”). SORNA “‘ma[d]e more uniform what had
remained a patchwork of federal and 50 individual state registration systems, with
loopholes and deficiencies that had resulted in an estimated 100,000 sex offenders
becoming missing or lost.” Nichols v. United States, 136 S. Ct. 1113, 1119 (2016)
(internal quotation marks omitted).

The “[r]egistration requirements [that] SORNA

imposes are justified by the high recidivism rate for offenders.” Morales-Cruz, 712 F.3d
at 75; Smith, 538 U.S. at 105 (“[R]ecidivism is the statutory concern”).
Here, the district court plainly did not ground the challenged condition that
Douglas submit to a sex-offender evaluation solely upon Douglas’s 1994 conviction.
Rather, there are a number of other circumstances that weighed into and justified the
district court’s decision to impose the limited condition that Douglas submit to the
evaluation as a first step to determining what, if any, additional treatment and conditions
were warranted.
Douglas’s prior sex offense involved the sexual assault of a prepubescent minor on
multiple occasions over a two-year period -- when Douglas was in his thirties and the
child was between 10 and 12 years old. Although he completed a sex-offender treatment
program in 1995, while he was on state probation, Douglas ceased complying with his
registration requirements in 2001, within five years of completing his state probation

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term. He then took affirmative steps, including changing his name and moving regularly,
to elude detection and arrest for over 14 years.
Consequently, Douglas did not merely fail to register under SORNA years after he
had completed his sentence and treatment for his prior sex offense, and Douglas was not
arrested within a short time after he violated his registration requirements. Instead, he
“made a conscious choice to defeat th[e] purposes” of the sex-offender registration laws
in several different jurisdictions for well over a decade. Morales-Cruz, 712 F.3d at 75.
“These continuing failures certainly permit a rational inference that [Douglas] presented a
recidivism risk and warranted deterrent punishment. His conduct undermined the efforts
made by Congress in SORNA, and by the states in their statutes, to combat the risks of
recidivism.” Id.; see also Bear, 769 F.3d at 1228 (noting that defendant’s “intervening
sex offender registration conviction and current SORNA conviction, while fundamentally
different than the underlying sex offenses, are not entirely unrelated and raise concerns
that [defendant] may not comply with his ongoing SORNA obligations,” justifying
“special conditions related to rehabilitation and monitoring”); cf. United States v.
Springston, 650 F.3d 1153, 1157 (8th Cir. 2011) (noting that special conditions requiring
sex-offender treatment might “be justified in a case involving failure to register as a sex
offender” for a remote prior conviction, “such as when there is reason to believe that the
failure to register evidences recalcitrance and an ongoing proclivity to commit sexual
crimes”), vacated on other grounds, 132 S. Ct. 1905 (2012).
We are also not persuaded by Douglas’s argument that the condition was not
justified because his criminal record has been clean since his prior offense (with the
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exception of the 1999 arrest for failure to register and a 2002 arrest for driving while
suspended), and that he only took steps to evade arrest during the ensuing 14 years to
avoid paying $70,000 in child support, and not to victimize children in secret. Although
there is nothing in the record to indicate that Douglas engaged in sexual offenses or
inappropriate sexual behavior during the time that he was on the run, his arguments
cannot be divorced from the fact that he was, in fact, on the run.

He was taking

affirmative steps to conceal his activities from law enforcement and simultaneously (and
knowingly) violating state and federal registration laws, the very purpose of which are to
alert the public to the presence of a convicted sex offender so as to deter sexually deviant
and recidivist behavior and to prevent, particularly in the case of child sex offenders,
offenses that often take place in secret. Cf. Morales-Cruz, 712 F.3d at 75 (holding that in
light of defendant’s “manifest lack of respect for the SORNA registration requirements,
and the reasonable inference that his refusal to comply with these requirements poses a
risk of recidivism, the district court’s imposition of sex-offender treatment was
reasonably related to [defendant’s] present offense as well as to his criminal history”).
Accordingly, we hold that the district court acted well within its broad discretion
to impose the condition that Douglas submit to a sex-offender evaluation. The condition
is reasonably related to the nature and circumstances of the offense and the history and
characteristics of the defendant, including his prior sex offense and the extraordinary
steps he took to avoid registration and apprehension by law enforcement for many years.
The condition is also reasonably related to the need to protect the public from further
crimes of the defendant, to provide the defendant with needed treatment in the most
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effective manner, and to afford adequate deterrence to criminal conduct in the future.
Moreover, the district court’s approach of imposing the single condition that Douglas
submit to a sex-offender evaluation, and declining to impose additional conditions unless
the evaluation were to indicate that they are warranted, reflects the district court’s
measured judgment to impose conditions causing no greater a deprivation of liberty than
was reasonably necessary to satisfy those factors. 2
III.
For the foregoing reasons, we hold that the sentence imposed by the district court
is procedurally and substantively reasonable, and we affirm the judgment of the district
court.
AFFIRMED

2

On appeal, Douglas complains about the invasiveness of a sex-offender
evaluation, specifically its use of polygraphs and penile plethysmography testing.
Although Douglas did not specifically raise this claim during the sentencing hearing, he
did object collectively to the sex-offender evaluation condition and the separate condition
that he submit to polygraph and plethysmograph examinations in his sentencing
memorandum. The district court only imposed the former condition (the sex-offender
evaluation), and it declined to impose the latter condition (pertaining to polygraphs and
plethysmographs) pending the results of the evaluation. In any event, we have held that
polygraphs and the plethysmograph test are “useful for treatment of sex offenders,” and
we have upheld the use of these tools as a condition of release. See United States v.
Dotson, 324 F.3d 256, 260 (4th Cir. 2003) (internal quotation marks omitted).
Accordingly, even assuming that the qualified mental health provider would include these
examinations as a part of the initial sex-offender evaluation, it would not change our
analysis of the reasonableness of the district court’s exercise of its discretion to impose
the condition in light of all of the circumstances and the goals of sentencing.

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