United States v. Emil Rath

614 F. App'x 188
CourtCourt of Appeals for the Fifth Circuit
DecidedJune 9, 2015
Docket14-30912
StatusUnpublished
Cited by6 cases

This text of 614 F. App'x 188 (United States v. Emil Rath) 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. Emil Rath, 614 F. App'x 188 (5th Cir. 2015).

Opinion

PER CURIAM: *

In this case we review the imposition of conditions of supervised release prohibiting the defendant from accessing “any computer that is capable of internet access” and requiring him to “consent to [the] installation of monitoring software on any computer to which [he] has access.” Concluding that the district court neither plainly erred nor abused its discretion in imposing these conditions, we AFFIRM.

I.

Emil Rath pled guilty in 2014 to abusive sexual contact with a minor who has not attained the age of twelve years in violation of 18 U.S.C. § 2244(a)(1) and (c). The stipulated factual basis for Rath’s guilty plea provided as follows. 1 Rath became acquainted with the victim and her family while stationed with the United States Army at the Fort Polk Military Reservation in Louisiana. On the night of the offense underlying Rath’s instant conviction, which occurred in late 2002 or early 2003, Rath was sitting on a couch beside the victim in the living room of her family’s residence while watching a movie. The victim was seven or eight years old. Rath was twenty-seven years old. Rath placed his hand on the victim’s breast and then placed his hand between her legs on her inner thigh. He also undid his pants and asked the victim to touch his penis.

The pre-sentence investigation report (PSR) indicated that Rath has multiple prior convictions for sexual offenses involv *190 ing minor victims. 2 In 1996, Rath pled guilty in Arkansas state court to two counts of first-degree sexual’ abuse and was sentenced to sixty months’ probation. 3 In 2006, Rath was convicted in Arkansas state court of fourth-degree sexual assault and sentenced to seventy-two months’ imprisonment. 4

According to the PSR, Rath’s 2006 conviction stemmed from allegations that in August 2005 he engaged in sexual intercourse with a fourteen-year-old girl in Mena, Arkansas. 5 Rath was thirty years old. Rath had met the victim about one year prior and cultivated a relationship by communicating with her “by phone, email, and instant messaging via computer for some time ... [He] developed a code for them to use so no one else would know what they were talking about.” 6 Beginning in July 2005, the victim began sneaking out of her house late at night to meet Rath alone in the backyard while her mother was sleeping. The victim reported to investigators that although at the second such meeting she told Rath that she did not want to have sex with him, at a later meeting she told him that she did want to have sex. She stated that at this later meeting Rath proceeded to remove her clothes and pull her underwear to one side before inserting his penis into her vagina. The PSR indicated that after initially denying these allegations Rath admitted that he had sexual intercourse with the victim on one occasion.

Based on a total offense level of 31 and a criminal history category of V, and relying on the United States Sentencing Guidelines (the “Guidelines”), the PSR indicated a guideline imprisonment range of 168 months to 210 months. 7 Rath does not challenge these calculations on appeal. 8 At sentencing, the district court indicated that, in addition to' the Guidelines and the sentencing factors contained in 18 U.S.C. § 3553, it was taking into account “the number of people we know were abused by [Rath]. Those are just the ones we know about, and that’s at least four at my last count.” 9 The court sentenced Rath to a within-guideline-range sentence of 210 months’ imprisonment followed by a five-year term of supervised release. 10

Among other special conditions of supervision, the court imposed the following two conditions related to internet access:

5. You are to refrain from any access to any computer that is capable of internet access.'
6. You are to comply with the requirements of the computer monitoring program as administered by the probation officer and consent to installation of all monitoring software bn any computer to which the defendant has access; and this will be further explained to you by your probation officer. 11

Counsel for Rath objected to the conditions concerning internet access and computer monitoring on the basis that the instant offense “did'not involve* anything *191 involving a computer.” 12 The court overruled counsel’s objection. It then recited the following bases in its written statement of additional reasons justifying Rath’s sentence: "This defendant has two other convictions for sexual crimes involving contact with underage females. The defendant continues to rationalize his behavior, never fully accepting responsibility for his actions.” 13

Rath timely appealed. 14

II.

We normally review conditions of supervised release “under a deferential abuse of discretion standard.” 15 In this case, although Rath objected below to the substantive reasonableness of the conditions he now challenges, he did not articulate an objection on procedural grounds. Where a defendant fails to preserve a procedural objection, including a claim “that the district court did not properly explain the sentence,” we review only for plain error. 16

III.

“Although a district court generally has extensive discretion in imposing conditions ' of supervised release, its discretion is limited by 18 U.S.C. § 3588(d), which provides that the district court may impose conditions of supervised release that are reasonably related to the factors [set forth] in 18 U.S.C. § [3558(a)(1), (2)(B)-(D) ].” 17 Section 3553(a), in relevant part, requires the district court to consider:

(1) “the nature and circumstances of the offense and the history and characteristics of the defendant;”
(2) “the need ... to afford adequate deterrence to criminal conduct;”
(3) “the need ... to protect the public from further crimes of the defendant;” and
(4) “the need ...

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Cite This Page — Counsel Stack

Bluebook (online)
614 F. App'x 188, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-emil-rath-ca5-2015.