USA v. David Johnson

Filing

FILED OPINION (BARRY G. SILVERMAN, RICHARD R. CLIFTON and N. RANDY SMITH) AFFIRMED., Judge: RRC Authoring,. FILED AND ENTERED JUDGMENT. [8380714]

Case: 11-30256

10/30/2012

ID: 8380714

DktEntry: 30-1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAVID LOUIS JOHNSON,
Defendant-Appellant.

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


No. 11-30256
D.C. No.
3:10-cr-00240-MO-1
OPINION

Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Argued and Submitted
October 11, 2012—Portland, Oregon
Filed October 30, 2012
Before: Barry G. Silverman, Richard R. Clifton, and
N. Randy Smith, Circuit Judges.
Opinion by Judge Clifton

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UNITED STATES v. JOHNSON

COUNSEL
C. Renée Manes, Assistant Federal Public Defender, Portland,
Oregon, for defendant-appellant David Johnson.

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UNITED STATES v. JOHNSON

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Kelly A. Zusman (argued) and Johnathan S. Haub, Assistant
U.S. Attorneys, Portland, Oregon, for plaintiff-appellee
United States.

OPINION
CLIFTON, Circuit Judge:
This appeal presents the question of whether a district court
may require a sexual offender assessment—not treatment, just
an assessment—as a condition of supervised release when the
defendant has two decades-old prior sexual offense convictions involving weapons, when the current offense also
involves a weapon, and when the defendant’s prior completion of sex offender treatment cannot be confirmed. We conclude that it may require such an assessment and affirm the
condition imposed in this case.
I.

Background

Defendant David Louis Johnson pled guilty to knowing and
unlawful possession of a firearm in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2). The district court sentenced him
to five years of supervised release subject to special conditions. At the suggestion of the Probation Office, the district
court later modified the sentence to require that Johnson
undergo a sexual offender assessment as an additional condition of his supervised release.
Johnson had two previous sexual offense convictions. In
1980, Johnson raped a nineteen year-old woman twice at
knife point. He was sentenced to nine years in prison for rape,
sodomy, kidnaping, and false imprisonment. In 1990, Johnson
raped a fourteen year-old girl at gunpoint. He was sentenced
to thirteen years in prison for rape. Though Johnson claims
that he underwent sexual offense treatment in the past, the
Probation Office was unable to verify this claim.

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UNITED STATES v. JOHNSON

The district court acknowledged that Johnson’s sexual
offense convictions were dated, specifically referencing our
decision in United States v. T.M., 330 F.3d 1235 (9th Cir.
2003). But it also found that a sexual offender assessment was
a “very minor restraint on liberty.” The district court decided
that its “obligation for the safety of the public, as well as the
rehabilitation of this defendant” justified the sexual offender
assessment condition.
Before the district court Johnson argued that if the sexual
offender assessment included a polygraph exam, then the
assessment would violate his Fifth and Sixth Amendment
rights. Without concluding that, the district court ordered that
the sexual offender assessment exclude a polygraph exam.
Johnson did not express any further concerns about the constitutionality of the sexual offender assessment at the district
court.
Johnson now challenges the reasonableness of the sexual
offender assessment condition. He also argues that the sexual
offender assessment violates his Fifth Amendment right
against self-incrimination.
II.

Reasonableness of the condition

[1] We review the district court’s decision to impose a
condition of supervised release for an abuse of discretion.
United States v. Baker, 658 F.3d 1050, 1053 (9th Cir. 2011),
overruled on other grounds by United States v. King, 687
F.3d 1189 (9th Cir. 2012). A district court may impose a condition of supervised release if it “involves no greater deprivation of liberty than is reasonably necessary” to punish, deter,
protect the public from or rehabilitate the defendant. 18
U.S.C. § 3583(d)(2). The condition should also “reasonably
relate[ ]” to “the nature and circumstances of the offense and
the history and characteristics of the defendant.” 18 U.S.C.
§ 3583(d)(1); id. § 3553 (a)(1). These factors are a “guide,”

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not “a checklist of requisites.” United States v. Johnson, 998
F.2d 696, 698 (9th Cir. 1993).
[2] The district court did not abuse its discretion in ordering the sexual offender assessment condition. Johnson was
twice convicted of serious and violent sexual offenses. In
addition, Johnson’s current offense involved possession of a
gun, the same sort of weapon he used as a sexual offender.
Johnson’s history as a sexual offender, old as it may be, justified the district court’s decision to order a sexual offender
assessment. After the district court receives the results of the
assessment, it will be better able to determine if additional
conditions are necessary to protect the public and rehabilitate
Johnson.
Johnson argues that United States v. T.M., 330 F.3d 1235
(9th Cir. 2003), curtails the district court’s discretion to order
sexual offender assessments on the basis of stale convictions.
Johnson reads T.M. too broadly. In T.M., we held that the
defendant’s twenty-one year-old conviction and forty-one
year-old sexual offense charge did not justify several stringent
conditions of supervised release, including the requirement
that he participate in a sexual offender treatment program and
submit to necessary testing. Id. at 1240. Sexual offender treatment programs can be very significant restraints on liberty.
See United States v. Weber, 451 F.3d 552, 563 (9th Cir.
2006). Johnson must undergo only an assessment, which is a
much less significant restraint. Further, in T.M., the record
included detailed information regarding the defendant’s progress in his sexual offense treatment. T.M., 330 F.3d at 1241
n.5. The record in this case does not, and Johnson’s assessment will enable the district court to make a more informed
decision. We have consistently noted that district courts have
“wide latitude” to craft conditions of supervised release.
Weber, 451 F.3d at 557. T.M. does not narrow a district
court’s discretion so greatly that the age of a defendant’s convictions forecloses its consideration of other statutory factors.

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III.

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UNITED STATES v. JOHNSON

Fifth Amendment claim

Johnson’s constitutional challenge to the sexual offender
assessment with a polygraph exam is not ripe. The district
court excluded a polygraph exam from the assessment. As a
result, a polygraph exam does not present “actual or imminent” harm to Johnson. See United States v. Antelope, 395
F.3d 1128, 1132 (9th Cir. 2005). Johnson did not challenge
the constitutionality of the condition as ordered at the district
court, so we do not address it here. See United States v. Reyes,
8 F.3d 1379, 1390 (9th Cir. 1993).
AFFIRMED.

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