United States v. Calvin Windless

Case: 12-60370 Document: 00512270769 Page: 1 Date Filed: 06/12/2013

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

June 12, 2013

No. 12-60370

Lyle W. Cayce

Clerk

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

CALVIN WINDLESS,

Defendant - Appellant

Appeal from the United States District Court

for the Northern District of Mississippi

Before HIGGINBOTHAM, OWEN, and GRAVES, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

A federal district court may not rely on “bare arrest records” when

sentencing a defendant. The district court believed that it could rely on those

records when crafting conditions of supervised release. We disagree.

I.

The Sex Offender Registration and Notification Act (SORNA) established

“a comprehensive national system for the registration of [sex] offenders.”1

SORNA requires each state to maintain a statewide sex-offender registry.2 It

1

42 U.S.C. § 16901.

2

Id. §§ 16912(a), 16911(10)(A), 16925.

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also compels each sex offender to register with each state in which he works or

resides.3 A person who fails to comply with one of SORNA’s registration

requirements is, in certain circumstances, guilty of a federal criminal offense

under 18 U.S.C. § 2250.4

Calvin Windless is a sex offender.5 In 1992, at fifteen years old, he

kidnapped a seven-year-old girl and twice forced her to perform oral sex on him.

Based on those actions, Windless was convicted of aggravated kidnapping and

two counts of aggravated criminal sexual assault. He was paroled in 1997 and,

after a brief return to prison, was released finally in 1999.

At some point after his release, Windless moved to Minnesota. He left

Minnesota for Mississippi in 2010 and began working in Mississippi in 2011.

Windless knowingly failed to register as a sex offender in Mississippi and, soon

after indictment, pleaded guilty to violating § 2250(a). This case arises out of the

sentencing proceeding that stemmed from that conviction.

In anticipation of Windless’s sentencing, a probation officer prepared a

Presentence Investigation Report (PSR). The PSR revealed that in 2008,

Windless was convicted for violating Minnesota’s “predatory offender”

registration requirement after failing to update (and knowingly providing false

information regarding) his address. The PSR disclosed no other convictions,

however, putting aside numerous traffic infractions.

The PSR also noted that Windless had been arrested several times. In

1999, he was charged with criminal sexual assault by force or threat. In each of

2005, 2006, 2007, and 2008, he was charged with failure to register as a

predatory offender. During the same 2008 incident, he was also charged with

theft and driving while impaired.

3

Id. § 16913(a); see also United States v. Johnson, 632 F.3d 912, 915 (5th Cir. 2011).

4

See Johnson, 632 F.3d at 915; 18 U.S.C. § 2250.

5

See 42 U.S.C. § 16911(1) (defining “[s]ex offender”).

2

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Several of these prior offenses were not accompanied by a description of

Windless’s alleged conduct. Regarding the 1999 arrest, the PSR read, “[a]

collateral request from the Northern District of Illinois revealed this arrest. No

further information is known about this arrest.” The PSR described the 2007

arrest by noting that “[t]his arrest was located on the defendant’s ATLAS

computerized criminal records report. No additional information could be

ascertained regarding this arrest.” And of the conduct underlying the 2008

arrest, the PSR said only that “[d]etails of this offense are unknown. The

defendant was represented by an attorney.” In sum, three of the five arrests

were included in Windless’s PSR without a description of his alleged conduct.

Only one of the two other arrests was accompanied by a description of

conduct suggesting Windless’s guilt. The PSR provided inculpatory details

surrounding Windless’s 2005 charge for failure to register. It explained that

while Windless was stopped for a traffic violation, officers discovered that he was

a sex offender from Illinois. “Officers then arrested [Windless] and charged him

with Failure to Register. [He] was later provided with additional information on

where and how to register in Minnesota and the charges were not pursued.”

The fifth and final arrest was accompanied by an exculpatory description

of Windless’s conduct. Regarding his 2006 arrest, the PSR explained that “police

ran a criminal history check [on Windless] and found [he] was a sex offender

from Illinois. [Windless] was arrested. Upon further investigation, it was

discovered [that he] had registered at his current address in Minnesota and the

case was closed as unfounded.”

The district court expressly referenced Windless’s arrests when explaining

its sentencing decision. After discussing his convictions, the court noted:

[T]here are a number of other arrests. Not convictions. I want to

make that very clear. But there is an arrest that’s in your

presentence report in 1999, criminal sexual assault by force or

threat, a failure to register charge in . . . 2005, another charge in

2006, a charge in 2007, and a charge in 2008.

3

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Windless contemporaneously objected to the district court’s reliance on these

arrests. The district court replied:

And, certainly, the Court understands that I must not consider an

arrest in fashioning a sentence, because he is just as likely to be

innocent as guilty of that because there was no disposition of it, and,

therefore, it would be like looking into a crystal ball to see what the

outcome would have been.

But under these circumstances and because we’re not looking at a

sentence but we’re looking at the special conditions, are they

warranted under the circumstances? I feel compelled to look at the

entire criminal history of this defendant, and looking at that

history, including the arrest, I think these conditions are not only

reasonable, but they’re necessary.

The court sentenced Windless to thirty months of imprisonment and ten years

of supervised release. On appeal, Windless challenges only the “special

conditions” of that supervision.

The district court imposed two such conditions. Specifically, it ordered

that:

1. The defendant shall participate in a mental health treatment

program . . . which may include polygraph examinations,

mental health treatment, and/or a specifically designed

program to address sex offender treatment, as directed by the

probation officer, until such time as the defendant is released

from the program by the probation officer.

2. The defendant shall have no direct or indirect contact with

any children under the age of 18, unless accompanied and

supervised by an adult, who has been approved in advance by

the probation officer. The defendant shall immediately report

any unauthorized contact with children to the probation

officer.

Windless acknowledges that the Guidelines recommend that “[i]f the instant

offense of conviction is a sex offense,” the conditions of release should include a

requirement that the defendant “participate in a program approved by the

United States Probation Office for the treatment and monitoring of sex

4

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offenders.”6 But he contends that failure to register is not a “sex offense” and, in

any event, that the conditions of his release are substantively unreasonable.

Most importantly, Windless argues that the district court erred by relying on

bare arrest records at sentencing.

II.

We will reverse a district court’s sentencing judgment if and only if the

district court abused its discretion.7 A district court abuses its sentencing

discretion when it makes a significant procedural error,8 orders a substantively

unreasonable sentence,9 or imposes sentence in a manner inconsistent with a

defendant’s right to due process.10

III.

A.

Due process requires “that sentencing facts . . . be established by a

preponderance of the evidence.”11 Accordingly, a district court may not rely on

6

U.S.S.G. § 5D1.3(d)(7)(A).

7

Gall v. United States, 552 U.S. 38, 51 (2007).

8

United States v. Rodriguez, 558 F.3d 408, 411–12 (5th Cir. 2009).

9

Id. at 411–12.

10

See United States v. Johnson, 648 F.3d 273, 277–78 (5th Cir. 2011); cf. Pepper v.

United States, 131 S. Ct. 1229, 1240 n.8 (2011) (“[S]entencing courts’ discretion . . . is subject

to constitutional constraints.”). The Supreme Court has instructed that when reviewing a

sentence, we “must first ensure that the district court made no significant procedural errors.”

Gall, 552 U.S. at 51. But it has never held that we must address a procedural sentencing

question whose answer will have no outcome on the case. Cf. Pearson v. Callahan, 555 U.S.

223, 236 (2009) (recognizing appellate court discretion to “decid[e] which of the two prongs of

the qualified immunity analysis should be addressed first.”).

11

Johnson, 648 F.3d at 277.

5

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a “bare arrest record” at sentencing.12 An arrest record is “bare” when it refers

to the “to the mere fact of an arrest—i.e.[,] the date, charge, jurisdiction and

disposition—without corresponding information about the underlying facts or

circumstances regarding the defendant’s conduct that led to the arrest.”13 By

contrast, an arrest record is not bare when it is accompanied by “a factual

recitation of the defendant’s conduct that gave rise to a prior unadjudicated

arrest” and “that factual recitation has an adequate evidentiary basis with

sufficient indicia of reliability.”14 “If the factual recitation lacks sufficient indicia

of reliability, then it is error for the district court to consider it at

sentencing—regardless of whether the defendant objects or offers rebuttal

evidence.”15

Three of Windless’s arrest records were bare. The first stated that “[a]

collateral request from the Northern District of Illinois revealed this arrest. No

further information is known about this arrest.” The second added that “[t]his

arrest was located on the defendant’s ATLAS computerized criminal records

report. No additional information could be ascertained regarding this arrest.”

And the third admitted that “[d]etails of this offense are unknown. The

defendant was represented by an attorney.”

The district court relied on these arrest records. It explained that it was

“sentencing [Windless] at the higher end of the sentencing guideline range

because [it noted] that [he had] a previous conviction for failure to register as

well as other offenses and charges on—arrests on failure to register.” The

prosecutor understood “the Court [to be] taking into consideration not just the

[kidnapping and sexual assault] offense in ‘92, but [also Windless’s] entire

12

United States v. Harris, 702 F.3d 226, 229 (5th Cir. 2012).

13

Id.

14

Id. at 231.

15

Id.

6

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criminal history . . . which involves the . . . criminal sexual assault [arrest] . . .

and the other arrests for failure to register.” In response to that statement,

Windless objected to consideration of his arrest records. Rather than disavow its

reliance on those records, the court attempted to justify considering them. It

explained, “the Court understands that I must not consider an arrest in

fashioning a sentence, . . . [b]ut under these circumstances and because we’re not

looking at a sentence but we’re looking at the special conditions, are they

warranted under the circumstances? I feel compelled to look at the entire

criminal history of this defendant . . . including the arrest.” Although the district

court said “arrest” instead of “arrests,” nothing suggests that the district court

was relying only on the non-bare, 2005 arrest—which the court never identified

as uniquely worthy of consideration. We therefore conclude that the district

court relied on three bare arrest records.16

This reliance was error. The district court attempted to justify its reliance

by distinguishing between “special conditions” of release and a defendant’s

“sentence.” But that distinction is illusory: supervised release and its conditions

are part of a defendant’s sentence.17 Regardless, the same due process concerns

that bar imposing a “sentence” based on bare arrest records apply to supervised

release—which works a “substantial restriction of freedom.”18 In short, whether

ordering a term of imprisonment or conditions of supervised release, a district

court may not rely on bare arrest records.19

16

Cf. Johnson, 548 F.3d at 279 (“[W]e cannot definitively rule out that the arrests were

considered in sentencing.”); id. at 281 (Smith, J., dissenting) (noting that the sentencing judge

expressly claimed that “the sentence is not based on the arrests”).

17

See 18 U.S.C. § 3583(a) (authorizing supervised release “as a part of the sentence”);

United States v. Gonzalez, 250 F.3d 923, 928 (5th Cir. 2001); see also Gall, 552 U.S. at 48.

18

Gall, 552 U.S. at 48 (internal quotation marks omitted) (citation omitted).

19

We have acknowledged that “[i]t might be true” that “‘there may be situations where

the number of prior arrests, and/or the similarity of prior charges to the offense of conviction,

becomes so overwhelming and suggestive of actual guilt that they become exceedingly difficult

7

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This error was not harmless. Consider this statement from the district

court, with the three bare arrest records (and the exculpatory arrest record)

struck through: “there is an arrest that’s in your presentence report in 1999,

criminal sexual assault by force or threat, a failure to register charge in . . .

2005, another charge in 2006, a charge in 2007, and a charge in 2008.” As

Windless’s criminal history appears quite different when his improperly

considered arrests are ignored, we cannot be “[]certain as to whether the district

court would have imposed the same sentence absent the arrests.”20 We therefore

hold that the district court erred by relying on bare arrest records when

determining Windless’s conditions of supervised release.

B.

We also hold that the “no direct or indirect contact” condition was flawed

by substantive error. A district court has discretion to craft conditions of

supervised release, even if the Guidelines do not recommend those conditions.21

The district court abused its discretion here, however, because this condition was

substantively unreasonable.

In the district court, Windless argued that this restriction on “direct or

indirect contact” swept so broadly that it would effectively prohibit him from

going to the grocery store unaccompanied. The district court did not express

to ignore.’” Johnson, 648 F.3d at 278 (citation omitted). This case does not present such a

situation, cf. United States v. Jones, 489 F.3d 679 (5th Cir. 2007), and the government does not

contend otherwise.

20

Johnson, 648 F.3d at 278.

21

See United States v. Weatherton, 567 F.3d 149, 152–53 (5th Cir. 2009). Windless

argues that the district court procedurally erred by treating his failure to register as a “sex

offense.” But even for sex offenses, the Guidelines do not recommend this condition of

supervised release. See U.S.S.G. § 5D1.3(d)(7). Accordingly, because the district court did not

impose this condition because of the Guidelines, any “sex offense” procedural error was

harmless with respect to this condition. See United States v. Delgado-Martinez, 564 F.3d 750,

753 (5th Cir. 2009) (recognizing that procedural error may be harmless).

8

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disagreement with that understanding. Nor can we. A restriction of this breadth

works a “greater deprivation of liberty than is reasonably necessary”22 where, as

here, a defendant is being sentenced for failing to register as a sex offender; the

offense that required him to register is not of recent origin; and since that

offense, he has committed no other crimes against minors,23 and the evidence

suggests that he has failed to register only twice before. Although it does not

affect our holding, we further note that here, the defendant committed the

underlying sex offense when he was only fifteen years old, and that this

condition would prevent him from ever seeing his minor children without the

supervision of someone approved by a probation officer.

Circumstances may, of course, permit a sentencing court to limit an

offender’s access to places where children are likely to be unsupervised or poorly

supervised. It may be reasonable to bar an offender from initiating unsupervised

or poorly supervised contact with others’ children and reasonable to require him

to report contact that children initiate. But to forbid all “indirect” contact works

a serious restriction on liberty, making a trip to the grocery store or a place of

worship a trip that may end in imprisonment via revocation sentence. We trust

that the district court will carefully address these considerations on remand—if

it decides that, with bare arrest records out of mind, such conditions are

appropriate at all.24

22

Weatherton, 567 F.3d at 153 (internal quotation marks omitted) (citation omitted).

23

We mean this colloquially and express no opinion concerning whether failure to

register is “an offense . . . perpetrated against a minor.” U.S.S.G. § 5D1.2 cmt. 1.

24

See United States v. Goodwin, 12-2921, 2013 WL 1891302 (7th Cir. May 8, 2013) (“In

assessing the appropriateness of special conditions, it . . . is useful to consider the

rehabilitative objectives that supervised release serves. Placing unduly harsh conditions on

supervised release would, instead of facilitating an offender’s transition back into the everyday

life of the community, be a significant barrier to a full reentry into society.” (internal quotation

marks omitted) (citation omitted) (alteration marks removed)).

9

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***

We VACATE imposition of the mental-health treatment condition and

REMAND for resentencing. We REVERSE imposition of the “no direct or

indirect contact” condition, which the district court may not impose (as currently

phrased) on remand.

10