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United States v. Rouland

United States Court of Appeals, Fifth Circuit

August 13, 2013

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
ROGER WAYNE ROULAND, also known as Roger Rouland, Defendant-Appellant.

Appeal from the United States District Court for the Western District of Texas

Before STEWART, Chief Judge, and HIGGINBOTHAM and JONES, Circuit Judges.

CARL E. STEWART, Chief Judge

Defendant-Appellant Roger Wayne Rouland ("Rouland") appeals his 30-month, within-Guidelines sentence and several conditions of his supervised release. For the following reasons, we AFFIRM.

I.

On January 19, 2012, Rouland pleaded guilty to possessing and attempting to possess child pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B), 2252A(b)(2), and 2256(8)(A), after an investigation revealed images of child pornography stored on Rouland's computer media devices. Prior to sentencing, a probation officer prepared a presentence investigation report (PSR), which calculated a total offense level of 19, and a criminal history category of I, and recommended a Sentencing Guidelines range of 30 to 37 months' imprisonment. Rouland did not object to the PSR but subsequently filed a 169-page sentencing memorandum with the district court, contending that a probationary sentence was appropriate given his advance educational and professional achievements, religious faith, familial ties, and history of back pain and surgeries.

At the sentencing hearing on May 16, 2012, the Government sought to introduce Government Exhibit 1 ("the Exhibit"), which was a memorandum from the probation officer to the Assistant United States Attorney recommending nine special conditions to be imposed during Rouland's supervised release. At this point, the district court asked Rouland's counsel whether he had any objections to the Exhibit, to which he responded, "No objections." The district court admitted the Exhibit and sentenced Rouland to 30 months of imprisonment, to be followed by a five-year term of supervised release, and imposed a fine of $1, 000 and a $100 special assessment. The court did not explain its sentence or orally pronounced any conditions of Rouland's supervised release.

On May 22, 2012, the court issued a written judgment, which included special, mandatory, and standard conditions of Rouland's supervised release.[1] Of relevance to this appeal, the district court imposed the following conditions that were listed in the Exhibit and designated as special conditions:

The defendant shall follow all other lifestyle restrictions or treatment requirements imposed by the therapist, and continue those restrictions as they pertain to avoiding risk situations throughout the course of supervision. This includes not residing or going to places where a minor or minors are known to frequent without prior approval of the probation officer.
The defendant shall not associate with any child or children under the age of 18 except in the presence and supervision of an adult specifically designated in writing by the probation officer. The probation officer will notify the designated adult of risks occasioned by the defendant's criminal record or personal history or characteristics. The defendant shall permit the probation officer to make such notifications.
The defendant shall reside in a residence approved, in advance, by the probation officer. Any changes in the residence must be pre-approved by the probation officer.
The defendant shall not reside within 1, 000 feet of the real property comprising a public or private elementary, vocational, or secondary school or a public or private college, junior college, university or playground or a housing authority owned by a public housing authority or within 100 feet of a public or private youth center, public swimming pool or video arcade facility, without prior approval of the probation officer.
The defendant shall refrain from purchasing, possessing, or using any sexually stimulating or sexually oriented materials including but not limited to written, audio and visual depictions, such as, pornographic books, magazines, photographs, films, videos, DVDs, computer programs, or any other media for portrayal of the same.

Furthermore, the written judgment included standard conditions of supervised release that were not contained in the Exhibit but were imposed pursuant to a standing order of the Western District of Texas for defendants on supervised release. These conditions are as follows:

The defendant shall submit to an evaluation for substance abuse or dependency treatment as directed by the probation officer, and if deemed necessary by the probation officer, the defendant shall participate in a program approved by the probation officer for treatment of narcotic addiction or drug or alcohol dependency which may include testing and examination to determine if the defendant has reverted to the use of drugs or alcohol. During treatment, the defendant shall abstain from the use of alcohol and any and all intoxicants. The defendant may be required to contribute to the cost of the services rendered (copayment) in an amount to be determined by the probation officer, based upon the defendant's ability to pay.
The defendant shall submit to an evaluation for mental health counseling as directed by the probation officer, and if deemed necessary by the probation officer, the defendant shall participate in a mental health program approved by the probation officer. The defendant may be required to contribute to the cost of the services rendered (copayment) in an amount to be determined by the probation officer, based upon the defendant's ability to pay.
The defendant shall participate in a cognitive behavioral treatment program as directed by the probation officer, and if deemed necessary by the probation officer. Such program may include group sessions led by a counselor or participation in a program administered by the probation office. The defendant may be required to contribute to the cost of the services rendered (copayment) in an amount to be determined by the probation officer, based upon the defendant's ability to pay.
The defendant shall participate in workforce development programs and services as directed by the probation officer, and if deemed necessary by the probation officer, which include occupational/career development, including but not limited to assessment and testing, education, instruction, training classes, career guidance, job search and retention services until successfully discharged from the program. The defendant may be required to contribute to the cost of the ...

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