United States v. Washington

904 F.3d 204
Court of Appeals for the Second Circuit·Decided September 18, 2018·No. No. 17-2841-cr; August Term 2017·Published·Cited by 29 cases

Opinion

José A. Cabranes, Circuit Judge:

*206Defendant-Appellant Brian Washington ("Washington") appeals the sentence imposed for his conviction on a charge of failure to register as a sex offender in violation of 18 U.S.C. § 2250. On appeal, Washington argues that the United States District Court for the Southern District of New York (George B. Daniels, Judge ) unlawfully modified his sentence by including in the written judgment a duty to submit to polygraph testing that was not mentioned during pronouncement of sentence. We hold that inclusion of a duty to submit to polygraph testing is, in the circumstances presented here, an impermissible modification of the spoken sentence. We REMAND the cause to the District Court for entry of a modified written judgment from which the reference to polygraph testing has been deleted.

I.

This appeal arises from a discrepancy between the terms of sentence that the District Court pronounced in Washington's presence at the sentencing hearing and the terms of sentence that the District Court entered in its written judgment.

Washington's sentence includes a five-year term of supervised release. In the Presentence Investigation Report ("PSR") prepared before sentencing and reviewed by all parties, including the defendant, the United States Probation Office recommended that the District Court impose the usual mandatory and standard conditions and several special conditions for the term of supervised release. One proposed special condition required Washington to participate in a sex-offender-treatment program and to comply with all the rules of the program, "including submission to polygraph testing." PSR at 24, United States v. Washington , No. 1:16-cr-00628-GBD (S.D.N.Y. July 27, 2017), ECF No. 21. The entire proposed special condition ran as follows:

You must undergo a sex-offense-specific evaluation and participate in an outpatient sex offender treatment and/or outpatient mental health treatment program approved by the U.S. Probation Office. You must abide by all rules, requirements, and conditions of the sex offender treatment program(s), including submission to polygraph testing . You must waive your right of confidentiality in any records for mental health assessment and treatment imposed as a consequence of this judgment to allow the probation officer to review your course of treatment and progress with the treatment provider. You must contribute to the cost of services rendered based on your ability to pay and the availability of third-party payments. The Court authorizes the release of available psychological and psychiatric evaluations and reports, including the presentence investigation report, to the sex offender treatment provider and/or mental health treatment provider.

Id. (emphasis added).

The District Court imposed this special condition at Washington's sentencing hearing, together with all the other mandatory, standard, and special conditions of supervised release that the PSR had recommended. But the District Court stated the sex-offender-treatment special condition more briefly than the PSR had. Omitted, among other things, was any explicit reference to polygraph testing. The District Court instead stated the condition in these terms:

The defendant also must undergo a sex-offense-specific evaluation and participate *207in an outpatient sex offender treatment and/or outpatient mental health treatment program approved by the United States Probation Office.

Transcript at 23, Washington (Oct. 16, 2017), ECF No. 27.

After pronouncement of sentence, the District Court restated the sex-offender-treatment special condition in a written judgment. The special condition as restated in the judgment runs longer than the version of the condition at the hearing. It is, however, identical in all material respects to the version of the condition proposed in the PSR. In particular, it includes the PSR's language-omitted from the spoken sentence-imposing a duty of "submission to polygraph testing." The entire written special condition reads:

Defendant shall undergo a sex-offense-specific evaluation and participate in an outpatient sex offender treatment and/or outpatient mental health treatment program approved by the United States Probation Office. Defendant shall abide by all rules, requirements, and conditions of the sex offender treatment program(s), including submission to polygraph testing . Defendant shall waive his right of confidentiality in any records for mental health assessment and treatment imposed as a consequence of this judgment to allow the probation officer to review your course of treatment and progress with the treatment provider. Defendant shall contribute to the cost of services rendered based on his ability to pay and the availability of third-party payments. The Court authorizes the release of available psychological and psychiatric evaluations and reports, including the presentence investigation report, to the sex offender treatment provider and/or mental health treatment provider.

Judgment at 5 (emphasis added), Washington (Sept. 8, 2017), ECF No. 25.

Counsel for the defense had reviewed the PSR-which contained the language imposing the polygraph requirement-with Washington before sentencing, but Washington did not object at sentencing to the PSR's recommendations of special conditions.

Washington now appeals seeking deletion of the duty to submit to polygraph testing from his written sentence.

II.

A.

We review de novo the asserted discrepancy between the spoken and written terms of Washington's sentence. It is a question of law whether the spoken and written terms of a defendant's sentence differ impermissibly. United States v. Jacques , 321 F.3d 255, 262 (2d Cir. 2003). In principle, we review an issue of law for plain error when the defendant has failed to raise the issue in the district court. See United States v. Sofsky , 287 F.3d 122, 125 (2d Cir. 2002) (relaxing the "rigorous standards of plain error review" to correct an unobjected-to sentencing error of which the defendant did not have advance notice). But when the point of law on appeal is a term of the defendant's sentence and the defendant lacked prior notice in the district court that the term would be imposed, we will review the issue de novo even if the defendant failed to raise an objection in the district court. See id.

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United States v. Washington, 904 F.3d 204 (2d Cir. 2018).

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