United States v. Cope

527 F.3d 944, 2008 U.S. App. LEXIS 11826, 2008 WL 2264536
CourtCourt of Appeals for the Ninth Circuit
DecidedJune 4, 2008
Docket06-50441
StatusPublished
Cited by114 cases

This text of 527 F.3d 944 (United States v. Cope) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Cope, 527 F.3d 944, 2008 U.S. App. LEXIS 11826, 2008 WL 2264536 (9th Cir. 2008).

Opinion

ORDER

The panel has decided to withdraw the opinion filed November 5, 2007. The opinion is withdrawn and a substituted opinion is filed concurrently with this order.

With the filing of the substituted opinion, the panel has voted to deny the petition for rehearing and to reject the suggestion for rehearing en banc.

The full court has been advised of the suggestion for rehearing en banc, and no judge of the court has requested a vote on the suggestion for rehearing en banc. Fed. R.App. P. 35(b).

The petition for rehearing is denied and the suggestion for rehearing en banc is rejected. No further petitions for rehearing or rehearing en banc will be allowed.

OPINION

THOMAS, Circuit Judge:

In this appeal we consider, among other matters, whether the district court’s imposition of a lifetime of supervised release was reasonable and whether the district court was required to articulate findings before imposing certain special conditions of supervised release pertaining to medication. Under the circumstances presented by this ease, we conclude that the term of supervised release imposed was reasonable, but that the district court should have articulated findings before imposing special conditions of release that would implicate a particularly significant liberty interest of the defendant. Therefore, we affirm in part, vacate the sentence in part, and remand for further proceedings.

*948 I.

In September of 2003, San Bernardino Sheriffs Department deputies discovered over 600 images and 20 videos of child pornography on Gordon Cope’s home computers, including “videos of sadistic and masochistic acts.” On March 10, 2006, Cope pled guilty to one count of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). Cope entered his plea pursuant to a plea agreement with the government in which both parties stipulated to a total offense level of 28 under the United States Sentencing Guidelines, including numerous upward adjustments relating to the child pornography possession. The government conditionally agreed to seek the low end of the Guidelines range for incarceration, but made no agreement as to what term of supervised release it would seek. In return, Cope agreed to waive his statutory right to appeal “any sentence imposed by” the district court, provided certain requirements were met. Cope retained his right to appeal most of the special conditions of his supervised release.

Following the change of plea hearing, the probation office prepared, using the November 2002 Sentencing Guidelines, a presentence report (“PSR”) recommending a total offense level of 25 and a criminal history category of II. This would ordinarily result in an advisory Guidelines range of 63 to 78 months. However, Cope’s 1981 conviction for attempted sexual assault on a child triggered a statutory mandatory minimum sentence of 120 months under 18 U.S.C. § 2252A(b)(2). The PSR noted that the Guidelines range for supervised release was 2-3 years, but did not mention that the Guidelines contained a policy statement recommending the statutory maximum term of supervised release for those convicted of sex offenses. U.S.S.G. § 5D1.2(c) (Nov.2002). The statute in effect at the time of Cope’s offense, like the one in effect now, provided for a lifetime term of supervised release as the statutory maximum for crimes involving possession of child pornography. 18 U.S.C. § 3583(k) (2007); 18 U.S.C. § 3583(k) (2003). In response to the PSR, the government filed a sentencing memorandum recommending that Cope receive the maximum term of supervised release in accordance with the Guidelines policy statement. Cope filed a memorandum requesting a prison sentence of less than ten years and a term of supervised release of less than life. Cope specifically objected to any special condition of supervised release of which he had not been given notice.

The district court held a sentencing hearing on July 10, 2006. After hearing from the parties, the district court sentenced Cope — 58 years old at the time of sentencing — to 120 months in prison, the statutory minimum, and a lifetime term of supervised release. The district court explained that a three-year term of supervised release was not sufficient in light of Cope’s criminal history, particularly his guilty plea to attempted sexual assault on a child. Instead, the district court found that a lifetime term of supervised release was necessary based on the interest in

the protection of society that the government has referred to.... [T]he nature of the offense, the type of materials that were seized; and I think that the protection of society, particularly in instances of the protection of minors from this kind of offense, is a paramount concern, obviously, to the government, also to the court.

The district court also imposed a number of special conditions of supervised release, including a condition requiring Cope to participate in sex offender treatment. As part of that treatment, the district court imposed conditions requiring Cope to sub *949 mit to polygraph testing, penile plethysmo-graph testing, and Abel testing, and to take all prescribed medication. 1 Another condition prohibits Cope from possessing any materials “depicting and/or describing child pornography as defined in 18 United States Code section 2256, subdivision eight.” Although the district court notified the parties that it was considering a special condition requiring Cope to participate in sex offender treatment, the court made no mention, prior to its announcement of the sentence, sub-conditions relating to testing or medication. This timely appeal followed.

II.

We review a defendant’s sentence for reasonableness, considering whether the district court accurately calculated the Guidelines range and whether the sentence is reasonable in light of the 18 U.S.C. § 3553(a) factors. United States v. Reina-Rodriguez, 468 F.3d 1147, 1158 (9th Cir.2006). We review conditions of supervised release for abuse of discretion. United States v. Williams, 356 F.3d 1045, 1052 (9th Cir.2004).

III.

Cope argues it was unreasonable for the district court to sentence him to a lifetime term of supervised release. He also argues the district court did not adequately explain why the lifetime term was necessary. Before reaching the merits of this challenge, we must determine whether Cope waived his right to appeal this aspect of his sentence. United States v. Michlin,

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Cite This Page — Counsel Stack

Bluebook (online)
527 F.3d 944, 2008 U.S. App. LEXIS 11826, 2008 WL 2264536, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-cope-ca9-2008.