United States v. Rhodes

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. BRUCE J. RHODES, Defendant-Appellant.

No. 19-3539

United States Court of Appeals For the Seventh Circuit

Submitted July 8, 2020^*

July 20, 2020

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1

Before DIANE P. WOOD, Circuit Judge AMY C. BARRETT, Circuit Judge AMY J. ST. EVE, Circuit Judge

Appeal from the United States District Court for the Western District of Wisconsin.

No. 07-cr-94-bbc-1

Barbara B. Crabb, Judge.

ORDER

Bruce Rhodes, who was convicted of a federal child-pornography crime, appeals his resentencing after the district court revoked his supervised release. He contends that the district court based his new sentence on two inaccurate findings. In the first finding (made orally without objection and later corrected in writing), the court said that he violated his conditions of federal release while on state supervision, when the fact is that Rhodes committed his underlying pornography crime while on state supervision. Inthe second finding, the court concluded that Rhodes had not participated adequately in sex-offender treatment. Neither finding justifies another resentencing, and so we affirm.

I

After Rhodes pleaded guilty to possessing child pornography, in violation of 18 U.S.C. § 2252(a)(4), he was sentenced in 2007 to 10 years in prison and a lifetime of supervised release. United States v. Rhodes, 552 F.3d 624, 625 (7th Cir. 2009). Rhodes committed this crime while on state supervision for sexually assaulting a girl. Id. at 625.

According to the probation office, Rhodes began to violate the conditions of his federal supervised release soon after it began in April 2019. He was caught using his cell phone, which was monitored by the probation office as a condition of his release, to search the Internet for images of nude girls. Rhodes conceded that he should not access the Internet until he has "progressed in sex offender treatment." Just two months later, however, a probation officer found three unauthorized cell phones in Rhodes's home during a scheduled search. At first, Rhodes denied ever turning them on. He then reversed himself and admitted to turning them on but denied using them to access the Internet. Finally, he shifted again, admitting to using the phones to view images on the Internet of topless girls.

The probation office petitioned to revoke Rhodes's supervised release. After describing Rhodes's inappropriate Internet use, the petition detailed his minimal participation in sex-offender treatment for many years after his state sexual-assault conviction in 2001. Rhodes had nominally enrolled in treatment while first on state probation, but he "demonstrated no desire to participate ... and 'implied in treatment that he should be allowed to engage in the pursuit of his own pleasure/needs.'" During his federal incarceration, Rhodes enrolled in sex-offender treatment, but he was removed from the program "due to his lack of effort and providing excuses for his failure to complete treatment tasks." Later, prison staff confiscated from Rhodes images of, and sexually explicit writings about, minors, so they recommended that he again participate in a sex-offender treatment program, but Rhodes declined. Finally, the petition observed that, although Rhodes attended sex-offender treatment sessions weekly while on supervised release, he also "continuously [sought] images of minors to support his deviant sexual interest." Rhodes's sex-offender treatment provider concluded that Rhodes was in "a moderate-high risk category for sexual re-offending."

Rhodes stipulated that he had violated three conditions of his release: he did not notify his probation officer about his unauthorized cell phones, he lied to his probation officer, and he failed to pay a special assessment of $100. At a hearing, the government's lawyer added, "I don't think there's any dispute as to the facts" stated in the petition, which included Rhodes's refusal for years to take sex-offender treatment seriously. When the court asked Rhodes's attorney if he agreed, he replied, "That's correct."

The court revoked Rhodes's supervised release, and sentencing came next. Because Rhodes committed a Grade C violation and his underlying conviction was a Class C felony, the statutory maximum penalty was two years in prison. The Sentencing Guidelines recommended six to twelve months' reimprisonment because Rhodes's criminal history category was IV. The government urged the court to sentence Rhodes at the top of the guideline range. Doing so, it argued, would punish Rhodes, protect the public, and reflect that he had violated the conditions of his earlier state supervision multiple times and was disinterested in sex-offender treatment. Rhodes asked the court not to revoke his release because he had "made a lot of progress": he had found a good job and housing and was "fully engaging" in sex-offender treatment, despite still being "drawn to ... underage images."

The court imposed a twelve-month sentence of reimprisonment, to be followed by, again, a lifetime term of supervised release. In its explanation, the court made its two challenged findings:

In light of the offense of conviction, his violations are serious. They occurred while you were on state community supervision for a hands-on sex offense involving a minor and while you were prohibited from using internet-capable devices. Your criminal history includes oral intercourse on and vaginal penetration of a 13-year-old female. These repeated and purposeful acts are intended to hide - were intended to hide his pursuit of child pornography and to bypass his computer monitoring are part of what I am considering today and what your probation officer believes is your unwillingness to participate or fully engage in sex offender treatment; also your level of untruthfulness with both your treatment provider and the supervising probation officer.

Rhodes did not object.

The court then issued a written order, which varied from its oral explanation. First, the court corrected its misstatement that Rhodes violated his conditions of federal release during state supervision. It wrote that his recent "violations are serious in light of his offense of conviction, which occurred while he was on state community supervision for a hands-on sex offense involving a minor and while defendant was prohibited from using Internet-capable devices." Second, it omitted its reference to what Rhodes's probation officer "believe[d]," but it still found Rhodes "unwilling[ ] to participate in or fully engage in sex offender treatment."

II

On appeal, Rhodes argues that the district court procedurally erred by sentencing him based on two erroneous facts. A defendant has a due process right to be sentenced based on accurate and reliable information, and so if a court relies on erroneous facts, it commits a "significant procedural error." United States v. Oliver, 873 F.3d 601, 608 (7th Cir. 2017) (quoting United States v. Corona-Gonzales, 628 F.3d 336, 340 (7th Cir. 2010)). To prove that the district court committed such an error, Rhodes "must show both that information before the sentencing court was inaccurate and that the sentencing court relied on the inaccurate information in...