United States v. Robert Fike

USCA11 Case: 23-10350 Document: 35-1 Date Filed: 07/20/2023 Page: 1 of 13

[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-10350

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROBERT FIKE,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 8:22-cr-00333-KKM-CPT-1

____________________

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2 Opinion of the Court 23-10350

Before WILSON, LUCK, and BRASHER, Circuit Judges.

PER CURIAM:

After serving a time-served sentence for sending obscene

materials to a 13-year-old girl, Robert Fike began a three-year term

of supervised release. About six months into that term, Fike vio-

lated his release conditions three times by using illegal drugs and

being discharged from his residential reentry center. The district

court revoked Fike’s supervised release and sentenced him to ten

months’ imprisonment. Fike appeals, arguing that the district court

plainly erred by imposing his prison sentence for rehabilitative pur-

poses in violation of 18 U.S.C. § 3852(a), Tapia v. United States, 564

U.S. 319 (2011), and United States v. Vandergrift, 754 F.3d 1303 (11th

Cir. 2014). We disagree and affirm.

I.

In 2019, Robert Fike, a 48-year-old Florida resident, sent ten

packages of obscene materials to a 13-year-old girl in Pennsylvania.

Fike did not know the minor victim personally—he discovered her

on “a[n] . . . online . . . channel known for featuring wholesome

family content.” The victim’s minor status is a “prominent feature”

of the channel.

The packages Fike sent the minor contained the following

items: girls’ clothing (socks and leggings) visibly marked with Fike’s

semen, sexually explicit letters addressed to the victim, and chil-

dren’s toys. After discovering online that the child’s family was

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23-10350 Opinion of the Court 3

planning a trip to Disney World, Fike wrote to the child that he

was planning to travel to Disney to see her. Government agents

also discovered unsent packages of obscene materials addressed to

the minor at Fike’s residence, including letters that explicitly refer-

enced the victim’s age.

A grand jury charged Fike with eight counts of transferring

obscene materials to a minor, in violation of 18 U.S.C. § 1470, and

one count of stalking, in violation of 18 U.S.C. § 2261A(2)(B). But

Fike entered a plea agreement with the government in which he

pleaded guilty to only two counts of transferring obscene materials

to a minor, and the government dismissed the remaining counts

against him. On April 5, 2022, the district court sentenced Fike to

time served followed by three years of supervised release. As a spe-

cial condition of his supervised release, Fike was required to spend

the first 360 days of his term at a residential reentry center in

Tampa, with the first 180 days on home incarceration and the next

180 days on home detention.

Fike’s presentence investigation report explained that Fike

suffers from a “delusional disorder” about his minor victim. Ac-

cording to his diagnostic report, “[t]he central theme” of Fike’s on-

going condition “is that another person is in love with the [him,]

with efforts to contact the object of the delusion being common.”

The report further explained that, although “the addition of psy-

chiatric medication” has led to either “a decrease in [Fike’s] fixa-

tion” on his delusions about his minor victim “or an ability to sup-

press discussion of them,” Fike nonetheless “continue[s] to endorse

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4 Opinion of the Court 23-10350

the belief that some of [his delusions] [are] real.” The evaluator fur-

ther cautioned that the use of “illicit substances, including canna-

bis, may . . . exacerbate the symptoms of his delusional disorder.”

Less than seven months after Fike began his term of super-

vised release, the probation office filed a petition charging Fike

with three violations of his conditions of supervised release—using

and possessing marijuana on two occasions and being unsuccess-

fully discharged from his residential reentry center because of ille-

gal drug use. In a discharge report prepared by the reentry center,

a BOP staff member who had supervised Fike opined that she

“do[es] not believe [Fike] will be successful upon release” because

he will “not accept[] responsibility for his actions” and “[h]e contin-

ues to talk about his case and how he is still interested in having a

consensual relationship with his [minor] victim.”

The probation office’s filings corroborate the concerns

raised in Fike’s discharge report. In its sentencing recommenda-

tion, the office maintained that “Fike’s prognosis to succeed on su-

pervision is poor” because, “[a]lthough he was taking medicine” for

his “significant mental health needs” while on supervised release,

“Fike’s delusions regarding his romantic relationship with the teen-

age victim persisted.” Specifically, Fike “continued to believe [he

and the minor victim] were in a relationship[] and that he had the

consent of [the minor’s] parents and attorneys to be in a relation-

ship with her.” And Fike “often mentioned that he still wanted to

start a family with the minor victim.” Accordingly, the office rec-

ommended the district court revoke Fike’s supervised release and

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23-10350 Opinion of the Court 5

sentence him to 10 months’ imprisonment, noting as its “primar[]y

concern[]” the safety of “the victim in this case.”

The district court held two revocation hearings. First, Judge

Barber—who was temporarily covering the case for the assigned

judge—held an initial revocation hearing in January 2023. During

the initial hearing, the government asked Judge Barber to revoke

Fike’s term of supervised release and sentence him to four months’

imprisonment. But Judge Barber decided not to sentence Fike dur-

ing this hearing, believing it made more sense to transfer the case

back to the assigned judge for sentencing. Before adjourning, how-

ever, Judge Barber recounted the facts of Fike’s underlying crimes

and said “there’s no way in the world” that he would sentence Fike

to only “four months[’]” imprisonment. In Judge Barber’s opinion,

“there’s only one possible outcome, and that’s the absolute maxi-

mum sentence available under the law to protect the public from

[Fike’s] activities.” Judge Barber reiterated that Fike’s ultimate sen-

tence would be up to the assigned judge upon transfer, but he “just

c[ould not] see any other possible outcome in light of” Fike’s rec-

ord. The statutory maximum penalty for Fike’s Class C violations

is two years’ imprisonment followed by three years of supervised

release. See 18 U.S.C. § 3583(g), (h).

Judge Barber then transferred the case back to the assigned

judge, who held a final revocation hearing a week later. During the

hearing, Fike admitted to all three violations of his supervised re-

lease conditions, and the district court calculated a sentencing

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6 Opinion of the Court 23-10350

guideline range of four to ten months’ imprisonment. See U.S.

Sent’g Guidelines Manual § 7B1.4(a) (U.S. Sent’g Comm’n 2021).

The district court then heard argument from counsel. Coun-

sel for the government stated that the government had reached an

agreement with the defense to request a sentence of four months’

imprisonment with no supervised release to follow. The govern-

ment explained that “the reason” it and the probation office both

requested “no supervised release to follow” is because “[t]here’s

simply too many mental health . . . [and] other associated issues”

Fike must overcome “to have a successful residential reentry center

treatment” and “get back on his feet.”

The sentencing judge “agree[d]” that Fike would likely not

“be successful on any further supervised release,” but she was “con-

cerned” that four months’ imprisonment was “insufficient, partic-

ularly with [Fike’s] mental health issues and [because] . . . it appears

he still has delusions about a relationship with the minor victim.”

The judge thus asked the government whether it had any “addi-

tional facts with regards to . . . [the judge’s] concern with the minor

victim.” Counsel responded that, if the district court revoked Fike’s

supervised release, Fike would “ha[ve] to go through all the proper

registrations and monitoring.” The court asked, “Would that keep

him from sending obscene materials to the victim in Pennsylva-

nia?” The government responded, “I have no idea.”

The district court then heard argument from defense coun-

sel, who asked the court to impose a sentence of time served fol-

lowed by one year of supervised release. To support its argument

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23-10350 Opinion of the Court 7

against imprisonment and in favor of supervised release, defense

counsel focused on Fike’s own apparent necessities—that Fike

“need[s] significant mental health treatment,” needs “a place to

live,” “needs services,” “needs help getting his disability forms filled

out so that he has some income,” “needs help getting his medica-

tion,” and “needs . . . supervision.” Counsel asserted that Fike is

experiencing “trauma” from being treated unfairly in this case and

argued that Fike “doesn’t need further incarceration for that[;] he

needs mental health treatment, a safe place where he can talk about

what happened to him.” The defense conceded that Fike “occasion-

ally . . . talks about the underlying crime because of his mental

health diagnosis” for which “there is no cure,” but assured the

court that “when he’s . . . taking his medication[,] . . . he’s not talk-

ing about it as much.”

The district court then probed defense counsel and Fike’s

probation officer about whether Fike was consistent in taking his

medication while on supervised release. Both confirmed that he

was. The judge then asked the probation officer to address the

court’s “concern[]” that Fike’s delusions regarding the minor vic-

tim were “still persisting” despite being “on medication and under

supervision.” The probation officer affirmed the court’s concern,

noting that Fike still “talk[ed] . . . openly . . . about . . . fantasies that

he had with the young . . . girl” and about his “belie[f] that he had

consent to be with that girl” while on medicated supervision. The

judge continued examining these concerns at length, asking the

probation officer whether Fike “ma[d]e comments about continu-

ing to reach out to the victim”; whether he “sa[id] anything about

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8 Opinion of the Court 23-10350

his desire to still have a relationship with her”; and whether “there

is any . . . need to protect the victim” from Fike. The probation

officer responded that she thinks Fike “wants to start a family” with

the victim, but that she “can’t predict if he’s gonna repeat [his] be-

havior.”

Finally, the sentencing judge asked the probation officer

why the office was recommending no additional supervised re-

lease—specifically, whether that recommendation “is based on

[Fike’s] mental health issues making him not as amenable to super-

vision.” The probation officer explained that the primary reason for

this recommendation is that Fike’s lack of support system increases

the risk that he will be unable to secure housing, transportation,

employment, mental health services, and medication upon release.

But defense counsel disagreed with the recommendation, arguing

that a new term of supervised release is necessary because Fike

“need[s] Probation’s help . . . [and] resources” to secure housing.

Lastly, the court allowed Fike to make a statement. Fike be-

gan by suggesting that others had “set him up” and “were respon-

sible” for his crimes. “I know it sounds crazy,” Fike said, “but no

one has seen it from my point of view.” Fike then explained that he

“need[s] help” from the probation office “to get back on [his] feet”

so that he can become “a father.”

The court proceeded to sentencing. The sentencing judge

explained that she had considered the nature and circumstances of

the offense, Fike’s history and characteristics, the need for adequate

deterrence and protection of the public, the guideline range,

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counsel’s argument, and Fike’s statement. In particular, she

stressed “[t]he need for adequate deterrence and the protection of

the public,” reiterating her “concern[] about . . . [Fike’s] potential

contact with the victim of the underlying offense” and noting that

“it . . . seem[s] that [Fike] still ha[s] some . . . lingering frustrations

perhaps as to how [his] prosecution proceeded and whether [he]

w[as] wrongfully convicted or set up.”

Accordingly, the district court revoked Fike’s term of super-

vised release and sentenced him to 10 months’ imprisonment with

no new term of supervised release to follow. Fike timely appealed

his sentence.

II.

If a criminal defendant violates the conditions of his super-

vised release by committing a Class C drug offense, the district

court is required to “revoke the term of supervised release and”

impose “a term of imprisonment not to exceed” two years. 18

U.S.C. § 3583(g), (e)(3). In addition, the district court “may” impose

a new “term of supervised release after imprisonment.” Id.

§ 3583(h).

In determining the term and conditions of any supervised

release, the district court must “consider the factors set forth in [18

U.S.C.] section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4),

(a)(5), (a)(6), and (a)(7).” Id. § 3583(c). Those factors include the

need for the sentence to “afford adequate deterrence to criminal

conduct,” “protect the public from further crimes of the defend-

ant,” and “provide the defendant with needed . . . medical care.” 18

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10 Opinion of the Court 23-10350

U.S.C. § 3553(a). But the law expressly provides that “imprison-

ment is not an appropriate means of promoting correction and re-

habilitation.” 18 U.S.C. § 3852(a). Accordingly, a district court may

not “impose or lengthen a prison sentence to enable an offender to

complete a treatment program or otherwise to promote rehabilita-

tion.” Tapia v. United States, 564 U.S. 319, 335 (2011). See also United

States v. Vandergrift, 754 F.3d 1303 (11th Cir. 2014).

According to Fike, the sentencing judge improperly imposed

a prison term because of his rehabilitative needs. Specifically, he

argues that the court sentenced him to prison because he needed

medication and mental health treatment. We disagree.

Because Fike raises this argument for the first time on ap-

peal, we review his sentence only for plain error. Vandergrift, 754

F.3d at 1307. Under this standard, Fike must show that: (1) an error

occurred, (2) the error was plain, and (3) the error affected his sub-

stantial rights. Id. But even if Fike makes this showing, the decision

to correct the error is within our discretion, which we will “not

exercise . . . unless the error seriously affects the fairness, integrity,

or public reputation of judicial proceedings.” United States v. Mon-

roe, 353 F.3d 1346, 1356–57 (11th Cir. 2003) (cleaned up).

Fike has not met this rigorous standard because the sentenc-

ing judge did not sentence Fike to a term of imprisonment so that

he could receive rehabilitative services. The law does not prohibit

a district court from merely “discussing rehabilitation during a sen-

tencing hearing.” Vandergrift, 754 F.3d at 1311 (emphasis added);

accord Tapia, 564 U.S. at 334. In particular, “[s]entencing courts are

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23-10350 Opinion of the Court 11

permitted to consider a defendant’s rehabilitative needs when im-

posing sentences of . . . supervised release.” United States v. Alberts,

859 F.3d 979, 986 n.3 (11th Cir. 2017) (citing Tapia, 564 U.S. at 330).

Although the sentencing judge inquired about Fike’s mental

condition and medication during the final revocation hearing, the

context of those statements makes plain that the judge never con-

sidered whether imprisonment would promote Fike’s rehabilitation.

No one suggested at the hearing that imprisonment would assist

Fike’s rehabilitation. Cf. Vandergrift, 754 F.3d at 1311–12 (“[I]n the

course of making th[e defendant’s] prison term 24 months long, the

district court stated that it needed ‘to consider what’s best for the

defendant’ and that ‘the sentence [was] being imposed . . . for the

benefit of the defendant.’”); Tapia, 564 U.S. at 334 (district court

stated the “number one” consideration in crafting its prison sen-

tence was ensuring the defendant “serve a prison term long enough

to qualify and complete” the BOP’s “500 Hour Drug Program”).

The defense counsel referenced Fike’s personal needs only when

arguing against imprisonment or in favor of supervised release. Like-

wise, the judge invoked these topics only when considering (1)

whether to impose a new term of supervised release and (2) the risk

that Fike would inflict further harm on the victim if released. Neither

consideration is improper.

Fike has also not met his burden of establishing that any sup-

posed error affected his substantial rights. For an error to affect sub-

stantial rights, the defendant must show that the error probably af-

fected the outcome of the district court’s proceedings. See United

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12 Opinion of the Court 23-10350

States v. Innocent, 977 F.3d 1077, 1082 (11th Cir. 2020). We’ve held

that a defendant cannot show that an error of this type affected his

substantial rights if “the sentencing transcript shows that rehabili-

tation was merely an ancillary concern” in the court’s sentencing

decision. Alberts, 859 F.3d at 986; see also Vandergrift, 754 F.3d at

1312 (substantial rights not impacted where “rehabilitative needs

clearly constituted only a minor fragment of the court’s reasoning”

(quoting United States v. Bennett, 698 F.3d 194, 201 (4th Cir. 2012))).

And here, the bulk of the sentencing court’s inquiries during the

revocation hearing pertained to the victim’s safety. Cf. Vandergrift,

754 F.3d at 1312 (holding “[t]he court’s primary considerations

were for the safety of the public and deterring others from similar

conduct” where “the court emphasized its concern that [the de-

fendant] continued to possess photographs that he had taken of

young boys about whom he had sexually fantasized”). And as ex-

plained, to the extent any of the court’s imprisonment-related

statements pertained to Fike’s rehabilitation, that concern was

plainly “ancillary” to the court’s “primary” concern for public

safety.

Moreover, the record and applicable law belie any sugges-

tion that Fike “would have been given a lesser sentence” had the

assigned judge not considered his rehabilitative needs. Taylor, 417

F.3d at 1183. For starters, the sentencing judge was required to im-

pose some “term of imprisonment” here because Fike violated his

supervised release by possessing a controlled substance. See 18

U.S.C. § 3583(g) (“If the defendant . . . possesses a controlled sub-

stance in violation of the condition set forth in subsection (d)[,] . . .

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23-10350 Opinion of the Court 13

the court shall . . . require the defendant to serve a term of impris-

onment . . . .”).

Fike cannot establish that his term of imprisonment would

have been shorter absent any improper consideration of rehabilita-

tion. To the contrary, Judge Barber stated that he would have im-

posed a term of imprisonment over twice as long as that imposed

by the assigned judge, which Judge Barber believed was necessary

to “protect the public from [Fike’s] activities.” Both judges ex-

pressed a significant concern for the victim’s safety, and the record

amply supports that concern. The probation office’s presentence

investigation report and sentencing memoranda, the reentry cen-

ter’s discharge report, and counsel’s and Fike’s statements during

the revocation hearing each highlight Fike’s continued infatuation

with the minor victim and his unwillingness to accept the illegality

of his conduct.

III.

The district court is AFFIRMED.