US v. Gregory Alan Haye, No. 10-4344 (4th Cir. 2010)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4344 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. GREGORY ALAN HAYES, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Columbia. Joseph F. Anderson, Jr., District Judge. (3:09-cr-00250-JFA-1) Submitted: November 19, 2010 Decided: December 10, 2010 Before WILKINSON, KING, and GREGORY, Circuit Judges. Affirmed by unpublished per curiam opinion. Parks N. Small, Federal Public Defender, Aileen P. Clare, Research and Writing Specialist, Columbia, South Carolina, for Appellant. William N. Nettles, United States Attorney, Dean A. Eichelberger, Assistant United States Attorney, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Pursuant to a plea agreement, Gregory Alan Hayes pleaded guilty to accessing child pornography via the Internet with intent to § 2252A(a)(5)(B) view it, (West in Supp. violation 2010). of Because 18 U.S.C.A. of his prior Pennsylvania convictions for sexual abuse, the district court sentenced months Hayes to the imprisonment, statutory see 18 mandatory U.S.C. minimum of § 2252A(b)(2) 120 (2006), followed by a lifetime of supervised release. On knowing appeal, or Hayes voluntary; asserts that his his guilty plea sentence was is not grossly disproportionate to his criminal conduct; and that the term of supervised release physiological and and the condition psychological that testing to he submit determine to [his] sexual orientation and patterns of arousal are unreasonable. For the reasons that follow, we reject Hayes arguments and guilty plea not affirm. I. Hayes first asserts that his was knowing and voluntary, under either Federal Rule of Criminal Procedure 11 or due process, because the Government failed to specifically identify the prior conviction it intended to rely upon to support an enhanced sentence. Because Hayes did not raise this issue in the district court and did not move to 2 withdraw his guilty plea on this basis, we will review this claim for plain error. See United States v. Vonn, 535 U.S. 55, 59 (2002); United States v. Massenburg, 564 F.3d 337, 342 (4th Cir. 2009) (stating standard of review for unpreserved Rule 11 error). error To establish plain error, Hayes must show: was made; (2) the error is plain; and (3) (1) an the error Massenburg, 564 F.3d at 342-43. affects substantial rights. To demonstrate impact on his substantial rights, Hayes must show that, but for the errors, he would not have pled guilty. See United States v. Martinez, 277 F.3d 517, 532 (4th Cir. 2002). Even if such error is found, it is within this court s discretion to notice the error, and we will do so only if the error seriously affects the fairness, reputation of judicial proceedings. integrity or public Massenburg, 564 F.3d at 343 (internal quotation marks omitted). The standard for determining whether a guilty plea is constitutionally valid is whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant. North Carolina v. Alford, 400 U.S. 25, 31 (1970); see Burket v. Angelone, 208 F.3d 172, 190 (4th Cir. 2000). Such an evaluation requires us to examine the totality circumstances of the surrounding Burket, 208 F.3d at 190. 3 the guilty plea. Hayes otherwise, in cannot the demonstrate court finding any his error, plea voluntary and accepting his guilty plea. was plain or knowing and During his Rule 11 plea colloquy, the Government stated for the record its position that Hayes prior convictions for sexual abuse of children qualified him for the recidivist enhancement set forth in 18 U.S.C.A. § 2252A(b)(2). * In addition to complying with the mandates of Rule 11, the district court advised Hayes at least three times that, if he had a qualifying prior conviction, he faced a statutory mandatory minimum ten-year sentence. The court specifically questioned Hayes to ensure he understood the potential applicability of this provision. Accordingly, we reject Hayes challenge to the knowing and voluntary nature of his guilty plea. II. Hayes next asserts that his 120-month sentence is grossly disproportionate to his offense conduct and his criminal history, and thus violative * of the Eighth Amendment s Hayes suggests that he should have received notice similar to that which is mandated by 21 U.S.C. § 851 (2006), but offers no authority to support this argument. To the contrary, however, the Eleventh Circuit has specifically rejected this argument. See United States v. Smith, 459 F.3d 1276, 1298-99 (11th Cir. 2006) (conducting plain error review, court rejected defendant s contention that due process demanded additional notice of the enhanced statutory minimum applicable due to his prior qualifying offense). We similarly reject this contention. 4 prohibition on cruel and unusual punishment. This court has previously held that proportionality review is not available for any sentence less than possibility of parole. life imprisonment without the United States v. Ming Hong, 242 F.3d 528, 532 (4th Cir. 2001) (citing United States v. Polk, 905 F.2d 54, 55 (4th Cir. 1990)). either explicitly or As one panel of this court cannot implicitly overrule this valid circuit precedent, see United States v. Lighty, 616 F.3d 321, 380 (4th Cir. 2010), we decline to review the proportionality of Hayes sentence. III. Finally, Hayes challenges both the duration of his supervised release term and the special condition imposed upon him. Hayes first argues the district court failed to explain its reasons for imposing a lifetime term of supervised release. We review this issue for plain error because Hayes did not present any argument for a lesser term in the district court. See United States v. Lynn, 592 F.3d 572, 576-78 (4th Cir. 2010). The length of [Hayes ] term of supervised release is part of his sentence and is reviewed for reasonableness[,] United States v. Daniels, 541 F.3d 915, 921 (9th Cir. 2008), cert. denied, 129 S. Ct. 1600 discretion standard of review. U.S. 38, 51 (2007). (2009), using an abuse-of- See Gall v. United States, 552 This 5 review requires appellate consideration of both the reasonableness of a sentence. Here, the procedural and substantive Gall, 552 U.S. at 51. court elected to impose the statutory maximum term of lifetime supervised release, which was the term recommended by the § 2252A(a)(5)(A); Guidelines 18 Manual § Guidelines. U.S.C. See 5D1.2(b), p.s. U.S.C.A. (2006); § 3583(k) 18 U.S. Sentencing Hayes correctly (2009). identifies, though, that the district court did not explain this decision, focusing its explanation instead on the reasons for the 120-month term of imprisonment. The Supreme Court has clearly mandated sentencing courts to adequately explain their sentences to allow for meaningful appellate review and to promote the perception of fair sentencing. court committed Gall, 552 U.S. at 50. procedural error in Even if the district this case, error did not affect Hayes substantial rights. we hold this To reiterate, defense counsel did not rely on any of the statutory sentencing factors to advocate for a term of supervised release below the lifetime term Guidelines. district authorized Accordingly, court s failure by statute Hayes to and cannot explain recommended demonstrate this prejudicial effect on the sentence imposed. decision by the that the had a Lynn, 592 F.3d at 580; see also United States v. Hernandez, 603 F.3d 267, 272-73 (4th Cir. 2010). 6 Hayes next contends substantively unreasonable. the supervised release term is The Supreme Court has authorized appellate courts to afford a presumption of reasonableness to a within-Guidelines sentence. Gall, 552 U.S. at 51; see United States v. Raby, 575 F.3d 376, 381 (4th Cir. 2009). also We do so here, holding the district court s decision to impose the within-Guidelines term of supervised release is presumptively reasonable, and that the duration of this term is insufficient to rebut that presumption. Finally, Hayes argues the requirement that he submit to sexual testing is substantively unreasonable. other arguments condition in on the appeal, district Hayes court, did not limiting As with his object the scope to this of this court s review to plain error. District courts have broad latitude with regard to special conditions of supervised release, and we review the [district] court s decision to impose a condition of supervised release for an abuse of discretion. United States v. Holman, 532 F.3d 284, 288 (4th Cir.) (internal quotation marks omitted), cert. denied, 129 S. Ct. 522 (2008). Any such special condition must be reasonably related to the factors set forth in 18 U.S.C. § 3583(d)(1) circumstances of (2006), the which offenses include: and the the nature history and and characteristics of the defendant; providing adequate deterrence; 7 protecting the public from further crimes; and providing the defendant with training, medical care, or treatment. United States v. Dotson, 324 F.3d 256, 260 (4th Cir. 2003) (internal quotation marks and citations omitted). Circuit requirement authority that Hayes supports submit to See id. at 261. advances that district requiring him to submit to district testing arousal patterns. the the court to court s determine his Further, although Hayes abused testing to its discretion determine his in sexual orientation, he cites no authority to support that proposition. Accordingly, we cannot say the imposition of this condition constitutes an abuse of discretion. For judgment. legal before these we affirm the district court s We dispense with oral argument because the facts and contentions the reasons, court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 8

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