United States v. Sisney

• Court: Court of Appeals for the Tenth Circuit
• Decided: September 30, 2025
• Docket: 24-5130
• Status: Unpublished

Opinion

Appellate Case: 24-5130 Document: 31-1 Date Filed: 09/30/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT September 30, 2025 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 24-5130 (D.C. No. 4:22-CR-00190-JFH-1) RICHARD ALAN SISNEY, (N.D. Okla.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT * _________________________________

Before TYMKOVICH, CARSON, and FEDERICO, 1 Circuit Judges. _________________________________

Richard Sisney pleaded guilty to an indictment charging him with possession

and receipt of child pornography without a plea agreement. At sentencing, the

district court imposed a 121-month custodial sentence with ten years of supervised

release. The district court added several special conditions to his supervised release

based on Sisney’s offense, including a condition that precluded him from possessing

After examining the briefs and appellate record, this panel has determined *

unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

Judge Federico concurs in the Order and Judgment with the exception of 1

footnote 5. Appellate Case: 24-5130 Document: 31-1 Date Filed: 09/30/2025 Page: 2

or viewing child and adult pornography. Sisney appeals, arguing that the district

court abused its discretion by imposing the special condition without conducting an

individualized assessment of Sisney or discussing how the condition furthers the

goals of supervised release.

Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM. We do not

reach the merits of Sisney’s claim because he waived his argument by not arguing

plain error, the correct standard of review here, in his opening brief.

I. Background

A. Factual Background

FBI agents searched Sisney’s residence following an investigation identifying

individuals possessing and sharing child pornography. The search resulted in the

recovery of 958 images and 1,418 videos containing child sexual abuse involving

prepubescent children and young teens. Some of these images were sadomasochistic,

and included a minor female being bound, gagged, choked, and flogged. Sisney was

subsequently charged with a four-count indictment for charges involving receipt,

possession, and distribution of child pornography. He pleaded guilty to all four

counts without a plea agreement. The following year, the government moved to

dismiss counts three and four of the indictment, which the district court granted.

B. Sisney’s Sentencings

Sisney appeared for sentencing several months later. The government did not

move for a one-point reduction of Sisney’s offense level for acceptance of

responsibility under U.S.S.G. § 3E1.1(b); it reasoned that Sisney was not entitled to a 2 Appellate Case: 24-5130 Document: 31-1 Date Filed: 09/30/2025 Page: 3

reduction because he did not take a plea agreement. The court agreed and did not

reduce Sisney’s offense level under § 3E1.1(b), sentencing him to two concurrent

135-month terms of imprisonment. As part of his ten-year supervised release, Sisney

was restricted from possessing or viewing child and adult pornography under

paragraph four of the Special Sex Offender Conditions, as recommended in the PSR.

The court, relying on the PSR, determined that the special condition was necessary to

“adequately protect the public . . . as it is often impractical to differentiate between

children and adults in sexually oriented materials.” Vol. I, 73; see Vol. II, 12. No

objections were made to the special condition both before and at sentencing.

Sisney appealed, asserting that he was entitled to the one-point reduction under

§ 3E1.1(b). He did not appeal any of the imposed special conditions. On appeal, the

government agreed that it could not withhold the reduction merely because Sisney

had pleaded guilty without a plea agreement. The parties thus jointly moved to

remand for de novo sentencing. We granted that motion.

Before Sisney’s resentencing, the probation office prepared a revised PSR that

included the previously contested one-level reduction under § 3E1.1(b). Otherwise,

the revised PSR largely remained the same, including its recommendation of special

conditions as part of Sisney’s supervised release. Again, Sisney did not object to the

revised PSR or to the special conditions. Instead, he filed motions for a departure

and variance, seeking to reduce his offense eight levels to reach a 60-month

imprisonment sentence.

3 Appellate Case: 24-5130 Document: 31-1 Date Filed: 09/30/2025 Page: 4

At his resentencing proceeding, Sisney affirmed that he had no objections to

the revised PSR. He advocated for a lower sentence in light of his age, health, lack

of criminal history, and the need to avoid unwarranted sentencing disparities. The

court acknowledged Sisney’s arguments but determined he did not warrant a

departure or variance. Sisney was sentenced to the bottom of the Guidelines range to

121 months of imprisonment 2 with ten years of supervised release. Like at his first

sentencing, the court again imposed special sex offender conditions, including that he

be precluded from possessing or viewing child and adult pornography. See Vol. I,

131 (“The defendant shall not possess or view books or any form of writings, images

or videos depicting or describing sexually explicit conduct 3 or child pornography, as

defined in 18 U.S.C. §§ 2256(2) and 2256(8).”). The court repeated its reasoning for

the special condition: the condition was necessary to adequately protect the public

because at least some of the child pornography Sisney possessed depicted teenage

victims, and “it is often impractical to differentiate between teenage children and

adults in sexually oriented materials.” Vol. III, 17.

Upon remanding Sisney to the custody of the United States Marshals Service,

the district court asked if there was “anything else from the defense.” Vol. III, 21.

2 Sisney’s offense level was 32 with a criminal history category of I. His Guidelines range was thus 121 to 151 months of imprisonment. 3 “‘Sexually explicit conduct’ is defined as ‘actual or simulated’ sexual intercourse, bestiality, masturbation, sadistic or masochistic abuse, or ‘lascivious exhibition of the genitals or pubic area of any person.’” United States v. Barela, 797 F.3d 1186, 1193 n.3 (10th Cir. 2015) (quoting 18 U.S.C. § 2256(2)(A)). 4 Appellate Case: 24-5130 Document: 31-1 Date Filed: 09/30/2025 Page: 5

Defense counsel responded that he wished to “note for the record our continuing

objection to the court’s denial of our motion for variance, our motion for departure,

as well as the court’s imposition of special sex offender [paragraph] number 4 as it’s

unconstitutional.” Vol. III, 21–22. The court noted the objection.

II. Discussion

Sisney appeals the imposition of the special condition that prohibits him from

possessing or viewing both child and adult pornography. Critically, he overlooks the

fact that he failed to timely object and preserve the issue for appeal. And because he

did not satisfy his burden of demonstrating plain error in his opening brief, we deem

the issue waived.

A. Plain Error

“When the defendant objects to a special condition of supervised release at the

time it is announced, this Court reviews for abuse of discretion.” United States v.

Mike, 632 F.3d 686, 691 (10th Cir. 2011) (citation omitted). But if the defendant

failed to object below, we typically treat the argument as forfeited and review for

plain error. Id.; United States v. Leffler, 942 F.3d 1192, 1196 (10th Cir. 2019). It is

not enough to object generally—the defendant must have raised the specific objection

they now appeal before the district court. United States v. Henry, 979 F.3d 1265,

1268–69 (10th Cir. 2020); United States v. Finnesy, 953 F.3d 675, 689 (10th Cir.

2020) (applying plain error review because defendant’s “general request” or

objection was insufficient and defendant “directed the district court toward[s] an

alleged error” different from the one “he presents on appeal”). 5 Appellate Case: 24-5130 Document: 31-1 Date Filed: 09/30/2025 Page: 6

Here, plain error review applies because Sisney did not make timely and

specific objections. Despite ample opportunity to do so, Sisney did not submit

objections to the revised PSR—which included the special condition—before his two

sentencings, nor did he timely raise relevant objections during the proceeding “at the

time [the special condition was] announced.” See Mike, 632 F.3d at 691 (citations

omitted). Only after the sentence and supervised release was imposed, and after

Sisney was remanded to the Marshals Service and no longer present at his

resentencing, did his defense counsel note his objection to the special condition of

supervised release on “constitutional” grounds, without any explanation. 4 And if not

already enough to trigger plain error review, defense counsel indicated he was noting

and preserving this objection for the record; he did not elaborate on the basis of the

objection, nor did he raise the objection for the purpose of having the court resolve it.

Accordingly, the court was not aware of the need to clarify reasons for the

applicability of the special condition. See United States v. Rodebaugh, 798 F.3d

1281, 1313 (10th Cir. 2015) (“It is not enough for a party to make a remark to the

district court that is related to the eventual appeal point” because “[a]bsent a specific

4 Sisney argues that his defense counsel objected at the next possible moment after the special condition was rendered. But there is no showing that defense counsel attempted to object to the special condition until the last possible moment before Sisney was remanded to the Marshals Service. Moreover, Sisney’s initial PSR from his first sentencing proceeding included the same special sex offender condition. And that same condition was imposed as part of his supervised release in his first sentencing proceeding. In other words, Sisney had adequate prior notice of the court’s intent to impose sex offender conditions and could have timely objected to the imposition of the condition. See United States v. Hahn, 551 F.3d 977, 982 (10th Cir. 2008). 6 Appellate Case: 24-5130 Document: 31-1 Date Filed: 09/30/2025 Page: 7

objection, the district court is deprived of the opportunity to correct its action in the

first instance.” (citations omitted)). We therefore review Sisney’s forfeited argument

under the plain-error standard. See Henry, 979 F.3d at 1268 (reviewing for plain

error because defendant “did not raise [the] specific procedural objection . . . before

the district court”).

Under plain error review, Sisney has the burden to demonstrate “(1) error,

(2) that is plain, which (3) affects substantial rights, and which (4) seriously affects

the fairness, integrity, or public reputation of judicial proceedings.” Id. at 1269.

B. Waiver

Sisney did not brief arguments under the plain error standard in his opening

brief, but belatedly addressed plain error in his reply brief only after the government

noted a potential waiver issue. The question then is whether we overlook waiver.

We decline to do so.

“When an appellant fails to preserve an issue and also fails to make a

plain-error argument on appeal, we ordinarily deem the issue waived . . . and decline

to review the issue at all—for plain error or otherwise.” Leffler, 942 F.3d at 1196

(citation omitted). That is because it is the appellant’s burden to satisfy our rigorous

plain-error test, Henry, 979 F.3d at 1268, and we will not craft arguments on his

behalf.

Applying that general principle here and relying on our precedent, we decline

to address the merits of Sisney’s claim. Sisney chose to argue in his opening brief

that the court abused its discretion in applying the special condition—thus he waived

7 Appellate Case: 24-5130 Document: 31-1 Date Filed: 09/30/2025 Page: 8

his already forfeited argument on appeal. See United States v. Wright, 848 F.3d

1274, 1281 (10th Cir. 2017) (declining to review appellant’s argument under the

plain-error standard because he incorrectly argued the court abused its discretion).

Even though Sisney briefed plain error in his reply brief, our conclusion

remains unchanged. Indeed, “we generally do not consider arguments made for the

first time on appeal in an appellant’s reply brief and deem those arguments waived.”

Leffler, 942 F.3d at 1198. In certain circumstances, we have exercised our discretion

and “left open the door for a criminal defendant to argue error in an opening brief and

then allege plain error in a reply brief after the government asserts waiver.” Id.

(citing United States v. MacKay, 715 F.3d 807, 831 n.17 (10th Cir. 2013)). But we

will only exercise our discretion if the error is obvious enough and it “permit[s] the

appellee to be heard and the adversarial process to be served.” Id. (quoting United

States v. Isabella, 918 F.3d 816, 844 (10th Cir. 2019)).

The circumstances here do not warrant forgiving Sisney’s briefing

deficiencies. Sisney forfeited his challenge when he did not properly object to the

special condition before the district court, despite having notice that the special

condition would be imposed and numerous opportunities to do so. And even though

he addressed plain error in his reply brief, he continues to insist that his argument

was preserved notwithstanding his last-minute, cursory objection. Reviewing

Sisney’s argument would not serve the adversarial process and would only pardon

8 Appellate Case: 24-5130 Document: 31-1 Date Filed: 09/30/2025 Page: 9

poor litigation practices. We thus decline to exercise our discretion to review his

claim for plain error. 5

III. Conclusion

For these reasons, we affirm.

Entered for the Court

Timothy M. Tymkovich Circuit Judge

5 Even if we were to exercise our discretion to review Sisney’s claim under the plain-error standard, we are doubtful Sisney would be entitled to relief. Assume the district court did in fact fail to adequately explain why it was prohibiting Sisney from possessing or viewing adult pornography—Sisney would still not prevail because the error does not affect a substantial right when a compelling basis existed for the special condition. See United States v. Doty, No. 24-5091, 2025 WL 2525198, at *4 (10th Cir. Sept. 3, 2025). Recall, Sisney possessed child pornography that depicted prepubescent and young teenage victims. The imposed special condition eases the difficulty probation officers will face in policing Sisney’s use of pornography given the close boundary between illicit child pornography and licit adult pornography. It also reasonably protects the public from Sisney’s further crimes and affords adequate deterrence of his criminal conduct. 9