United States v. David Tang

718 F.3d 476, 2013 WL 2099065
CourtCourt of Appeals for the Fifth Circuit
DecidedMay 16, 2013
Docket12-20043
StatusUnpublished
Cited by41 cases

This text of 718 F.3d 476 (United States v. David Tang) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth 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. David Tang, 718 F.3d 476, 2013 WL 2099065 (5th Cir. 2013).

Opinion

PER CURIAM:

David Hien Vinh Tang pleaded guilty to failing to register as a sex offender after traveling in interstate commerce in violation of 18 U.S.C. § 2250(a). He appeals three conditions of his supervised release. First, he appeals a ban on Internet use without permission of his probation officer. Second, he appeals certain aspects of a requirement that he participate in mental health or sex offender treatment. Third, he appeals a restriction on contact with minors, including children of his own, part of which is a ban on dating people with minor children. We AFFIRM in part and VACATE in part.

I

In 2003, Tang was convicted under Iowa law of assault with intent to commit sexual abuse, not causing bodily injury. IOWA CODE § 709.11. Tang, drunk at the time of the offense, touched a thirteen year old girl’s breast and kissed her in an automobile. The offense occurred after the un *480 timely death of Tang’s seven year old daughter, who fought leukemia for four years. Tang turned himself in for the offense, and, for the next eight years, compliantly registered as a sex offender. The 2003 Iowa offense is his only criminal conviction.

In 2011, Tang moved to Texas to pursue new work opportunities and a romantic relationship. Before leaving Iowa, Tang notified his probation officer, and, upon arriving in Texas, Tang went to the Houston Police Department (“HPD”) to register and was told to return for a sex offender registration information session. Tang returned and attended the information session, but was asked to return again because HPD did not yet have Tang’s requisite documentation from Iowa. As instructed, Tang went to the HPD a third time to register, but he was turned away because HPD still did not have all the requisite materials to complete his registration. Although Tang was asked to return to HPD for a fourth visit scheduled for June 1, 2011 to finish the process, he did not. Nor did he register as a sex offender with the Harris County Sheriffs Office. Thus, he failed to comply with federal law, which required him to register. 18 U.S.C. § 2250(a).

After determining that Tang was required to register as a sex offender in Texas and that he had failed to do so, the Texas Department of Public Safety notified the United States Marshal Service. The Marshal Service tried to find Tang at the address he had provided during each of his visits to HPD but was unable to do so because the address was at a residential location that Tang did not own and at which Tang did not reside. The owner informed the Marshal Service that he had given permission to Tang’s girlfriend to use the address to register for a cell phone. 1 Eventually, the Marshal Service was able to locate Tang at another address in Cypress, Texas. Tang was arrested and charged with a one count indictment of failing to register as a sex offender after traveling in interstate commerce, in violation of 18 U.S.C. § 2250(a).

At sentencing, Tang waived the United States Probation Office’s preparation of a presentence investigative report (“PSR”) and pled guilty. In the oral pronouncement of sentence, the district court imposed a “[split] sentence at the low end of the eligible guideline range” consisting of three months of imprisonment, three months of community supervision, and five years of supervised release. Three conditions of Tang’s supervised release are at issue in this appeal: (1) a ban on computer and Internet use, (2) sex offender-related mental health treatment (including potential physiological testing and a potential waiver of confidentiality), and (3) a restriction on contact with minors and persons whom Tang may date.

At sentencing, the court stated the following regarding the Internet ban:

The defendant shall not subscribe to any computer online service or access any internet service during the length of his supervision unless approved in advance by the probation officer.
The defendant may not possess internet cable software on any hard drive, disk, floppy disk, DVD, diskette, or any other electronic storage media unless approved in advance by the probation officer.

Tang’s lawyer objected to this condition by saying, “I just wanted to add one more *481 objection, which is to the restriction of no online service or cable software so that he could use the Internet.” Twice, Tang’s lawyer stated that her understanding that the ban would prevent Tang from accessing the Internet in his home was the root of her objection.

Regarding the treatment program, the court explained:

The defendant shall participate in a mental health program — treatment program and/or sex offender treatment program provided by the registered sex offender treatment provider, as approved by the United States Probation Office, which may include but not be limited to group and/or individual counseling sessions and or polygraph testing or medical-physiological testing to assist in treatment and case monitoring administered by the sex offender contractor or their designee.
The defendant shall participate as instructed and shall abide by all policies and procedures of the sex offender program until such time as the defendant is released from the program as approved by the United States probation officer.
The defendant will incur any costs associated with such sex offender treatment program and testing based on ability to pay as determined by the probation officer.
The defendant shall waive his or her right to confidentiality in any records for mental health treatment imposed as a consequence of his judgment, allowing the supervising United States probation officer to review the defendant’s course of treatment and progress with the treatment provide — and progress with the treatment provider.

Tang’s lawyer objected, saying the potential physiological testing “seems greater than necessary to achieve the goals of 3553” 2 and that “even group [] counseling — and that he waived confidentiality for any counseling that he receives appears greater than necessary to achieve the goals.” Later, counsel repeated that she “vehemently emphasized [her] objection to physiological mental health treatment, whatever that might entail” as being “vague and overbroad” and not related to his underlying offense of failing to register.

Regarding the restriction on contact with minors, the court stated:

The defendant shall not have any contact with any minor children under the age of 18 without prior written permission of the probation officer.
The defendant shall not cohabitate with anyone who has children under the age of 18 unless approved in advance by the probation officer.

The probation officer present clarified that the restriction does apply to one’s own children.

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Bluebook (online)
718 F.3d 476, 2013 WL 2099065, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-david-tang-ca5-2013.