USA v. Brandon Inman
PER CURIAM OPINION and JUDGMENT filed : VACATED and REMANDED, decision for publication pursuant to local rule 206. Martha Craig Daughtrey, Eric L. Clay, Jane Branstetter Stranch, Circuit Judges.
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0021p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
BRANDON M. INMAN,
Appeal from the United States District Court
for the Eastern District of Kentucky at London.
No. 08-00127-001—Gregory F. Van Tatenhove, District Judge.
Decided and Filed: January 26, 2012
Before: DAUGHTREY, CLAY, and STRANCH, Circuit Judges.
ON BRIEF: Christopher C. Bazeley, Cincinnati, Ohio, for Appellant. Charles P.
Wisdom Jr., John Patrick Grant, ASSISTANT UNITED STATES ATTORNEYS,
Lexington, Kentucky, for Appellee.
PER CURIAM. Brandon Inman, a federal prisoner who pleaded guilty to
possession of child pornography, appeals from the district court’s judgment imposing
lifetime supervised release and certain conditions of supervised release. The parties
waived oral argument, and we unanimously agree that oral argument is not necessary.
Fed. R. App. P. 34(a). Because the district court did not articulate a rationale for the
length of supervised release and some of the conditions it imposed, we vacate the
judgment and remand for re-sentencing.
United States v. Inman
Inman pleaded guilty to possession of child pornography in violation of 18
U.S.C. § 2252(a)(4)(B). Inman admitted possession of a computer thumb drive that he
knew contained many images of minors engaged in sexually explicit conduct.
At the sentencing hearing, the district court considered all of the sentencing
factors enumerated in 18 U.S.C. § 3553(a) before imposing a term of incarceration of
fifty-seven months. Although both parties requested a ten-year term of supervised
release, the court imposed a lifetime term of supervised release with standard and special
Inman did not object below to the length or conditions of his supervised release,
so we limit our review to plain error. See United States v. Kingsley, 241 F.3d 828, 835
(6th Cir. 2001). Inman must show (1) an error, (2) that was obvious or clear, (3) that
affected his substantial rights, and (4) that affected the fairness, integrity, or public
reputation of his judicial proceedings. United States v. Gunter, 620 F.3d 642, 645 (6th
Cir. 2010). Ordinarily, where a challenge to supervised release is preserved, we consider
whether the district court abused its discretion in imposing special conditions. See
United States v. Brogdon, 503 F.3d 555, 563 (6th Cir. 2007). Under abuse of discretion
review, we first “determine whether the district court adequately stated in open court at
the time of sentencing ‘its rationale for mandating special conditions of supervised
release.’” Id. (quoting United States v. Carter, 463 F.3d 526, 529 (6th Cir. 2006)).
Next, we “determine whether the ‘condition of supervised release is reasonably related
to the dual goals of probation, the rehabilitation of the defendant and the protection of
the public.’” Id. (quoting United States v. Ritter, 118 F.3d 502, 504 (6th Cir. 1997)).
The condition must reasonably relate to the nature of the offense and the history and
characteristics of the defendant and “involve no greater deprivation of liberty than is
reasonably necessary” to serve the goals of deterrence, protecting the public, and
rehabilitating the defendant. 18 U.S.C. § 3583(d)(1)-(2); Brogdon, 503 F.3d at 564. The
condition must also be consistent with any pertinent policy statements issued by the
United States Sentencing Commission. 18 U.S.C. § 3583(d)(3). This analysis remains
helpful to us in determining whether plain error occurred in this case.
United States v. Inman
The applicable statute and guideline authorized a term of supervised release
ranging from five years to life. See 18 U.S.C. § 3583(k); USSG § 5D1.2(b). The
guideline also contains a policy statement in § 5D1.2(b) that provides: “If the instant
offense of conviction is a sex offense . . . the statutory maximum term of supervised
release is recommended.” Because “Congress insists that lifetime supervision be
available to courts in sentencing sexual offenders[,]” we upheld a term of lifetime
supervised release where the offender admitted he distributed child pornography, the
court found the offender posed a danger to the public, and the government requested the
lifetime term. United States v. Kennedy, 499 F.3d 547, 549, 553 (6th Cir. 2007). Under
18 U.S.C. § 3583(c), however, a
district court must consider § 3553(a)
factors—specifically, § 3553(a)(1), (a)(2)(B), (C), & (D), and (a)(4) through (7)—in
determining the length of supervised release imposed.
The record does not demonstrate that the district court considered any of the
pertinent § 3553(a) factors when it imposed the term of supervised release, and the court
did not explain why it chose a life term of supervised release over the parties’
recommendation for a ten-year term. Without proper analysis and an explanation for the
length of the supervised release term chosen, we cannot review the reasonableness of the
sentence as imposed. See Kennedy, 499 F.3d at 553 (reviewing term of supervised
release for reasonableness). Therefore, we must remand so that the district court can
provide a more thorough analysis of the pertinent sentencing factors and an explanation
for the lifetime term of supervised release. We note that, should the district court on
remand decide to impose the ten-year term of supervised release recommended by the
Government, the governing statute allows the court to extend the term of supervised
release and to modify the conditions at any time prior to the term’s expiration if
circumstances warrant such an extension or modification. 18 U.S.C. § 3583(e)(2).
We also conclude that some of the supervised release conditions the district court
imposed require further analysis and explanation. First, we consider the requirements
for drug and alcohol testing. The court imposed a mandatory condition requiring Inman
to submit to drug testing within fifteen days of release from imprisonment and also to
United States v. Inman
submit to at least two periodic drug tests thereafter, as determined by the court. The
district court also imposed special conditions prohibiting Inman from consuming any
alcoholic beverages and requiring him to inform the probation office in writing of every
prescription medication in his possession, custody, or control upon his release from
prison and to notify his probation officer of any prescription medication received during
the period of supervised release, whether those medications contain controlled
substances or not.
Nothing in the record suggests that Inman has any problem with alcohol or drug
dependence; yet, he is now barred from consuming alcohol for life, required to submit
to periodic drug testing, and required to keep the probation office informed of any
prescription medications in his possession. Supervised release conditions must be
tailored to the specific case before the court. Where appropriate, the mandatory
condition of drug testing “may be ameliorated or suspended by the court for any
individual defendant if the defendant’s presentence report or other reliable sentencing
information indicates a low risk of future substance abuse by the defendant.” 18 U.S.C.
§ 3563(a)(5). Moreover, the pertinent statute on discretionary conditions does not permit
a total ban on alcohol, but allows a court to order the defendant to “refrain from
excessive use of alcohol.” 18 U.S.C. § 3563(b)(7) (emphasis added). Because Inman
appears to present a low risk of future substance abuse, the district court should explain
why these conditions of supervised release are warranted.
Next, we consider the special conditions imposed concerning the use of
computers, other electronic devices, and the rental or use of a post office box or storage
unit. The district court allowed Inman to have restricted access to computers, but
precluded him from using any device capable of creating pictures or video. This special
condition effectively prohibits Inman for his lifetime from possessing a cell phone with
photo or video capability, a video camera, or any other device capable of creating
pictures or videos, even if such devices might be used appropriately in connection with
employment or family activities. The court also prohibited Inman from renting or using
a post office box or storage facility. Because the record is silent, we question the reasons
United States v. Inman
for these restrictions, particularly where the underlying conviction involved receiving
child pornography through the Internet.
We believe there may be another option available to the district court to address
any concern that Inman might use electronic equipment, a post office box, or a storage
unit for improper or unlawful purposes. Where a defendant is required to register under
the Sex Offender Registration and Notification Act, the district court may impose a
special condition that the defendant submit to a search at any time of his “person and any
property, house, residence, vehicle, papers, computer, other electronic communication
or data storage devices or media and effects” conducted by a law enforcement officer or
a probation officer, with or without a warrant, if the officer has “reasonable suspicion
concerning a violation of a condition of [supervised release] or unlawful conduct by the
defendant” or “by any probation officer in the lawful discharge of the officer’s
supervision functions.” 18 U.S.C. §§ 3583(d) & 3563(b)(23). On remand the district
court may wish to consider whether the search provision is sufficient to alleviate any
concerns about Inman’s use of electronic equipment, a postal box, or a storage unit. We
recognize that the district court may find, after conducting an analysis of the pertinent
factors under § 3553(a) and § 3583(d), that the special conditions as originally imposed
are warranted. In either event, the district court should provide a sufficient explanation
for the special conditions imposed.
Finally, Inman also challenges the special condition requiring him to provide the
probation office with any requested personal financial information. Inman’s crime was
not financial in nature. We realize that Inman’s finances may give a probation officer
insight into whether Inman is involved in illegal conduct, but we cannot approve a
requirement that Inman disclose any and all financial information to the probation officer
without first reviewing the district court’s explanation as to why such a condition is
necessary in light of the pertinent sentencing factors.
Having concluded that the district court erred in certain respects, we must
determine whether those errors are clear or obvious. Gunter, 620 F.3d at 645. A
sentence that is not adequately explained is procedurally erroneous. See Rita v. United
United States v. Inman
States, 551 U.S. 338, 357 (2007). In an analogous case, the Ninth Circuit determined
that the district court clearly erred in imposing a supervised release term of life without
giving an adequate explanation. United States v. Mota, 434 F. App’x 636, 639 (9th Cir.
2011). Furthermore, our precedent clearly requires a district court to “state in open
court at the time of sentencing its rationale for mandating special conditions of
supervised release.” Brogdon, 503 F.3d at 563 (internal quotation marks and citation
omitted). Accordingly, we conclude that the district court’s errors are clear.
The error must also affect Inman’s substantial rights. See Gunter, 620 F.3d at
645. An error affects substantial rights when it “affect[s] the outcome of the district
court proceedings.” United States v. Olano, 507 U.S. 725, 734 (1993). Sentencing
errors meet this criterium where there is a reasonable likelihood the errors impacted the
sentence. See United States v. Abbouchi, 502 F.3d 850, 858 (9th Cir. 2007) (explaining
that failure to consider adequately the rationale for a supervised release condition affects
defendant’s “substantial rights”); cf. United States v. Swanberg, 370 F.3d 622, 629–30
(6th Cir. 2004) (holding that defendant’s substantial rights were affected where error led
to a more severe sentence). The district court’s imposition of a lifetime term of
supervised release—despite the parties’ recommendation for ten years—and the
imposition of the challenged supervised release conditions without providing an
adequate rationale affected Inman’s substantial rights. See United States v. PerazzaMercado, 553 F.3d 65, 79 (D.C. Cir. 2010) (“[T]here is a reasonable probability that the
court might not have imposed the prohibition if it had fulfilled its obligation to explain
the basis for the condition or at least made sure that the record illuminated the basis for
Finally, the error seriously affected the fairness, integrity, or public reputation
of judicial proceedings. Gunter, 620 F.3d at 645. A sentencing error that leads to a
“more severe sentence . . . would diminish the integrity and public reputation of the
judicial system [and] also would diminish the fairness of the criminal sentencing
system.” United States v. Oliver, 397 F.3d 369, 380 (6th Cir. 2005) (internal quotation
marks and citation omitted); United States v. Barsumyan, 517 F.3d 1154, 1162 (9th Cir.
United States v. Inman
2008) (vacating supervised release condition on plain error review). Because both the
length of supervised release and the conditions imposed are likely more severe than if
the district court had followed the correct procedures, the district court’s errors seriously
affect the fairness, integrity, or public reputation of the proceedings.
For the reasons stated, we VACATE the district court’s judgment imposing
supervised release with conditions and we REMAND for further proceedings consistent
with this opinion. On remand, we direct the district court to consider the lifetime term
of supervised release and the following conditions of supervised release:
requirements for mandatory drug testing, to notify the probation office and provide
documentation of any prescription medication, and to provide the probation office with
access to any personal financial information, as well as the prohibitions against
consuming any alcoholic beverages, possession or use of a device capable of creating
pictures or video, and renting or using a post office box or a storage facility.
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