United States v. Tilley

105 F.4th 482

• Court: Court of Appeals for the First Circuit
• Decided: June 26, 2024
• Docket: 23-1494
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 23-1494

UNITED STATES OF AMERICA,

Appellee,

v.

RONALD TILLEY,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. Lance E. Walker, U.S. District Judge]

Before

Barron, Chief Judge, Selya and Gelpí, Circuit Judges.

Lawrence D. Gerzog on brief for appellant. Darcie N. McElwee, United States Attorney, and Benjamin M. Block, Assistant United States Attorney, on brief for appellee.

June 26, 2024 SELYA, Circuit Judge. Defendant-appellant Ronald Tilley

challenges an order of the district court granting the government's

petition to modify his conditions of supervised release.

Concluding that his modified conditions are reasonable and that no

other error appears, we affirm.

I

We briefly rehearse the relevant facts and travel of the

case. "Where, as here, a sentencing appeal follows a guilty plea,

we glean the relevant facts from the change-of-plea colloquy, the

unchallenged portions of the presentence investigation report (PSI

Report), and the record of the disposition hearing." United States

v. Vargas, 560 F.3d 45, 47 (1st Cir. 2009).

In March of 2019, the appellant robbed a credit union in

Bangor, Maine. He was shortly apprehended and pleaded guilty to

bank robbery under 18 U.S.C. § 2113(a). His PSI Report identified

two prior convictions that involved potential sexual misconduct

and, consequently, suggested the imposition of special conditions

of supervised release requiring the appellant to "participate in

sex-offender treatment as directed by the supervising officer."

The first prior conviction — in 2005 — was for aggravated assault,

assault and terrorizing and involved an incident in which the

appellant's wife at the time accused him of choking and sexually

assaulting her. The second prior conviction — in 2008 — was for

violating a protective order and involved text messages of a sexual

- 2 - nature allegedly exchanged between the appellant and his underage

niece.

Inasmuch as the appellant objected to the sex-offender

treatment conditions, the parties reached a compromise requiring

the appellant to undergo an assessment to determine whether

sex-offender treatment was necessary. The district court

provisionally sentenced the appellant to fifty-two months in

prison and three years of supervised release, and the appellant

commenced his term of supervised release in November of 2022.

In early 2023, the appellant completed the agreed upon

Sexual Offense Assessment and Treatment Evaluation (SOATE), which

was conducted by a licensed clinical social worker. According to

one of the instruments used to assess the appellant's risk of

sexual recidivism, he fell into the "well below average risk"

category of being charged or convicted of another sexual offense

due to the length of time that had elapsed since his last sexual

misconduct. The SOATE recommended, though, that this risk

assessment finding be interpreted "with caution" because the

sexual history polygraph administered as part of the evaluation

found the appellant's answer to the question "Since September 24,

2005, did you have physical sexual contact with a person under the

age of eighteen?" to be deceptive. When asked about his response

to this question in the post-test interview, the appellant denied

that he had physical sexual contact with his niece. His

- 3 - explanation for the deceptive response was that he was thinking of

a famous singer whom he met in 2004, when she was fifteen years

old, and had romantic thoughts about at the time. He claimed that

he kept in touch with the singer and engaged in physical sexual

contact with her after she turned eighteen.

On a different assessment of risk factors for sexual

recidivism, the appellant scored in the 87th percentile, placing

him "in the High density range of criminogenic needs." Areas

identified by this assessment as being of "significant clinical

concern" or "some noted clinical concern" included hostility

toward women and deviant sexual preference.

The SOATE diagnosed the appellant with antisocial

personality disorder and opioid use disorder, heroin, severe, in

sustained remission. Among other things, it recommended that the

appellant "have no unsupervised contact with minors" and

"participate in weekly group therapy with a treatment provider

specifically trained to intervene with sexually problematic

behavior."

Based on the SOATE report's recommendations, the

government filed a petition to add several special conditions to

the appellant's supervised release terms. These conditions would

require the appellant to participate in sex-offender treatment as

directed by his probation officer; require the appellant to submit

to periodic random polygraph examinations as directed by the

- 4 - probation officer "to assist in treatment and/or case planning

related to behaviors potentially associated with sex offense

conduct"; prohibit the appellant from associating or communicating

with minors (excluding incidental contact) except in the presence

of a responsible adult who is aware of his background and with

approval from the probation officer; prohibit the appellant from

"go[ing] to, or remain[ing] at" any place where he knows minors

are likely to be, such as a park, school, playground or childcare

facility; and authorize the probation office to notify any

organization or person to whom it determined the appellant to pose

a risk.

The district court held a hearing on the government's

petition on May 25, 2023. At this hearing, the appellant objected

to the conditions proposed by the government's petition. He argued

that the conditions were not supported by his 2005 conviction for

assaulting his wife because he was never convicted of any sexual

offense against his wife and that the relevance of both the 2005

and 2008 convictions was significantly mitigated by the amount of

time (more than fifteen years) that had elapsed with no sexual

misconduct incidents in the interim. The appellant also asked the

court to consider his age and medical condition — at the time of

the hearing, the appellant was sixty-three years old and suffered

from serious liver cirrhosis — and emphasized that the SOATE did

not diagnose him with any sexual disorders; nor was his most recent

- 5 - conviction related to sexual misconduct. Regarding his deceptive

result on the polygraph test, he argued that the result should be

given "little or no weight" because polygraph tests have "not

scientifically been proven to be reliable enough and accurate."

In June of 2023, the district court granted the

government's petition. It acknowledged that the appellant's most

recent conviction was unrelated to sexual misconduct, but

explained that "his past sexual misconduct, robust and unabated

criminal activity both distant and proximate, and the

recommendations recited in [the] SOATE report all comfortably lead

to the ineluctable conclusion that the proposed modifications

promote the goals of supervised release." It also found that the

conditions restricting the appellant's association with minors

were "proportionate and reasonably related to the goals of

supervised release and . . . [his] history and characteristics"

based on the SOATE's recommendations.

This timely appeal ensued.

II

The appellant's sole challenge to the modified

conditions is that the district court relied on "clearly erroneous

facts" in imposing them. Because the objections were interposed

to the challenges below, our review is for abuse of discretion.

See United States v. Mercado, 777 F.3d 532, 537 (1st Cir. 2015);

see also United States v. Smith, 436 F.3d 307, 310 (1st Cir. 2006).

- 6 - A district court may impose any condition of supervised

release that is reasonably related to at least one of "(1) the

defendant's offense, history, and characteristics; (2) the need to

deter the defendant from further criminal conduct; (3) the need to

protect the public from further crimes by the defendant; and (4)

the effective educational, vocational, medical, or other

correctional treatment of the defendant." United States v. York,

357 F.3d 14, 20 (1st Cir. 2004); see United States v. Prochner,

417 F.3d 54, 63 (1st Cir. 2005). Conditions of supervised release

should "cause no greater deprivation of liberty than is reasonably

necessary to achieve the goals of supervised release." United

States v. Del Valle-Cruz, 785 F.3d 48, 58 (1st Cir. 2015) (quoting

United States v. Perazza-Mercado, 553 F.3d 65, 69 (1st Cir. 2009)

(internal quotation marks and citations omitted)). Although the

sentencing court must provide a reasonable explanation of the

conditions, the court's reasoning may also be inferred from the

record. United States v. Garcia, 872 F.3d 52, 54-55 (1st Cir.

2017). A "court's decision to impose [a] condition must have

adequate evidentiary support in the record," Prochner, 417 F.3d at

63, although "the fact that a condition of supervised release is

not directly related to [the defendant's] crime of conviction does

not render that condition per se invalid." York, 357 F.3d at 20;

see Prochner, 417 F.3d at 63.

- 7 - We usually will not disturb the district court's factual

findings at sentencing in the absence of clear error. See United

States v. Occhiuto, 784 F.3d 862, 868 (1st Cir. 2015). "Clear

error will be found only when, upon whole-record review, a

reviewing court 'form[s] a strong, unyielding belief that a mistake

has been made.'" Id. (alteration in original) (quoting United

States v. Cintrón-Echautegui, 604 F.3d 1, 6 (1st Cir. 2010)).

We find no clear error here. One of the appellant's

primary claims of error is that the district court decision

inaccurately referred to the appellant's previous "sex-based

offenses" even though the appellant has never been convicted of a

sex offense. For the appellant to have been convicted of a "sex-

based offense," though, is not essential for his sex-offender

treatment conditions to be reasonable.1 We have, for example,

upheld supervised release conditions requiring a defendant to

undergo sex-offender treatment if directed to do so by the

probation office and court even though he had never been convicted

of a sex offense. See Prochner, 417 F.3d at 58, 63-64. In

Prochner, we found the imposition of a sex-offender treatment

condition reasonable because evidence in the record — including

1 By "sex-offender treatment conditions," we refer to the conditions requiring the appellant to "participate in sex-offender treatment as directed by the supervising officer" and to submit to periodic random polygraph examinations to assist in treatment or case planning "related to behaviors potentially associated with sex offense conduct."

- 8 - journal entries by the defendant and an evaluation by a clinical

social worker — indicated that the defendant "ha[d] a potential

problem with adolescent males." Id. at 64. Although Prochner —

unlike this case — affirmed the challenged conditions on plain

error review, its reasoning applies foursquare as the relevant

analysis in Prochner focused on whether the district court "could

reasonably believe that [the defendant] might pose a threat to

children" and that participation in sex-offender treatment, "if

further ordered, was reasonably related to the purposes of

supervised release." Id.

So, too, there is "adequate evidentiary support in the

record" for the sex-offender treatment conditions imposed in the

case at hand. York, 357 F.3d at 20. Even putting to one side his

ex-wife's disputed rape allegations from 2005, the undisputed

facts in the record show that in 2008, the appellant was convicted

of violating a protective order involving his underage niece, and

his phone was discovered to contain sexually-charged text

exchanges with her. Moreover, in 2023, a licensed social worker

identified deviant sexual preference as an area of clinical concern

for the appellant and concluded that he would benefit from "therapy

with a treatment provider specifically trained to intervene with

sexually problematic behavior." As in Prochner, these facts show

that the appellant's sex-offender treatment conditions are

reasonably related to the permissible goals of protecting the

- 9 - public from future potential crimes by the appellant and providing

him with necessary treatment. See 417 F.3d at 64.

The appellant insists that the district court erred in

interpreting the text messages between him and his niece as an

instance of sexual misconduct because "[t]here was no indication

in the record that the protection order had anything to do with

sexually explicit messages" and the appellant "explained that the

messages on the phone were not his." We discern no clear error.

To begin, the origin of the protection order that the

appellant allegedly violated is irrelevant to whether the

appellant behaved in a sexually inappropriate manner toward his

niece. Nor is the district court obliged to discredit evidence of

the appellant's inappropriate conduct simply because he denied

that conduct. Although the appellant objected below to the portion

of his PSI Report that mentioned the "sexual nature" of the texts

to his niece, the only basis for this objection was that he was

sharing a phone with his niece's boyfriend at the time. This

uncorroborated claim by the appellant is not enough for us to

"form[] a strong, unyielding belief" that the district court made

a mistake by relying on this portion of the PSI Report. Occhiuto,

784 F.3d at 868 (internal quotation omitted).

So, too, the district court did not err by stating that

the SOATE "identified risks presented to the community by the

[appellant] having unsupervised contact with minors." There is

- 10 - nothing inaccurate about the district court's characterization of

the SOATE: the evaluation explicitly recommended that the

appellant "have no unsupervised contact with minors" and explained

that its risk assessment was influenced by the appellant's

deceptive answer to the polygraph question he was asked about

whether he had engaged in any physical sexual contact with a minor

since 2005. Although the appellant argues that the deceptive

polygraph result was unreliable, he has not provided any evidence

to substantiate this claim. Based on the SOATE findings and

recommendations, combined with the appellant's history of

inappropriately texting his underage niece, it was not clear error

for the district court to find that the appellant would pose a

risk to the community if allowed unsupervised contact with minors.

Finally, the appellant argues that the district court

erred by characterizing his criminal history as

"significant . . . from the time of the sexual misconduct to

date," when in fact his criminal history was unexceptionable "after

2008 until the instant offense."2 In drawing this conclusion, the

district court relied on the appellant's PSI Report which

2The appellant also alleges that the district court misdescribed the SOATE as covering his conduct from 2003 to the present, when in fact it only covered his conduct from 2005 onward. He does not explain, however, why this discrepancy should have made any difference to the district court's analysis. This alleged error appears to be nothing more than a lapsus linguae, which is not a basis for vacating a reasoned decision. See Fed. Refinance Co. v. Klock, 352 F.3d 16, 28 (1st Cir. 2003).

- 11 - recounted, in addition to the appellant's 2005 conviction

concerning an alleged sexual assault, a 2008 conviction involving

sending sexual messages to his minor niece, a 2008 conviction for

escape, and the 2019 conviction for robbery. Given these

convictions, we find no error in the district court's description

of the appellant's criminal history as "significant."

In sum, the district court's decision was not based on

any factual error, and the modified conditions it imposed were

supported by the record and reasonably related to one or more of

the permissible goals of supervised release. See York, 357 F.3d

at 20. Accordingly, the district court did not abuse its

discretion in imposing these conditions.

III

We need go no further. For the reasons elucidated above,

the district court's order modifying the appellant's supervised

release conditions is

Affirmed.

- 12 -