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United States v. Cary

United States Court of Appeals, Seventh Circuit

January 6, 2015

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
JEREMY S. CARY, Defendant-Appellant

Argued November 4, 2014.

Page 920

Appeal from the United States District Court for the Central District of Illinois. No. 11-CR-10054 -- Joe B. McDade, Judge.

For United States of America, Plaintiff - Appellee: Jason M. Bohm, Attorney, Office of The United States Attorney, Urbana Division, Urbana, IL.

For Jeremy S. Cary, Defendant - Appellant: Luke P. Taylor, Attorney, Law Firm of Luke P. Taylor, PC, Pekin, IL.

Before MANION, WILLIAMS, and SYKES, Circuit Judges.

OPINION

Page 921

Manion, Circuit Judge.

Jeremy S. Cary pleaded guilty to one count of failing to register as a sex offender. The district court sentenced him to thirty-three months' imprisonment. Cary now appeals, challenging various special conditions of his supervised release. We affirm in part, vacate in part, and remand with the direction that the district court amend Cary's conditions of supervised release consistent with this opinion. A hearing on the nature and scope of the computer monitoring and filtering software and sexually oriented websites Cary is prohibited from accessing will be necessary on remand.

I. Background

Jeremy Cary first became involved in the criminal justice system at the age of fifteen when he was placed on court supervision for battery after touching the buttocks of a woman. He subsequently dropped out of high school and found work washing dishes and bussing tables at restaurants. Simultaneously, he began abusing alcohol (up to ten beers a day) and hard drugs (powder cocaine, crack, and Ecstacy). He was diagnosed as cannabis- and alcohol-dependent while receiving services at a treatment center, and was ultimately asked to leave after threatening and intimidating staff and other patients.

Things escalated on June 11, 2009, when at the age of twenty-five, Cary had sexual intercourse with a minor under the age of seventeen. In March 2010, he pleaded

Page 922

guilty to aggravated criminal sexual abuse. In April 2010, he registered as a sex offender in Illinois. Over the next few months he pleaded guilty to unrelated charges of theft and domestic battery (for which he served time). He was released from jail in August 2010 and by early 2011, had moved to Florida with a married woman and assumed her husband's identity. However, he did not report his departure from Illinois to law enforcement authorities, nor did he register as a sex offender upon his arrival in Florida. This decision violated both the Illinois sex offender registry law and the Sex Offender Registration and Notification Act (SORNA), which makes it a felony for a sex offender knowingly to fail to register following an interstate move. 18 U.S.C. § 2250.

On May 6, 2011, Cary was found crouching in the dark and peering into the windows of a sorority house on a university campus. He was arrested and pleaded guilty to prowling. The prosecution for failure to register as a sex offender underlying this appeal was then initiated.

II. Procedural history of Cary's federal prosecution

In June 2011, Cary was indicted by a federal grand jury for knowingly failing to register and update a registration as a sex offender, as required by the SORNA. See 18 U.S.C. § 2250(a). He pleaded guilty. In December 2011, the district court sentenced him to a within-Guidelines sentence of thirty-three months' imprisonment and imposed a twenty-year term of supervised release. This included the standard conditions of supervised release as well as number of special conditions. Cary then filed a habeas corpus petition challenging his counsel's failure to properly calculate the Guidelines. In February 2013, the district court granted Cary's petition and, in April 2013, it resentenced him to time served, reduced the term of his supervised release to ten years, and reimposed the standard and some special conditions of that supervised release. Cary was then released into a half-way house.

In July 2013, because of complaints by the half-way house's manager, Cary's probation officer petitioned the district court to revoke Cary's supervised release based on his unmonitored use of a computer and his failure to attend sex offender treatment. In September 2013, the district court held a revocation hearing wherein Cary admitted to the alleged violations. He was sentenced to an above-Guidelines sentence of eighteen months and his term of supervised release was reduced from ten to five years. The court then reimposed the special conditions of his supervised release. In November 2013, Cary filed a second petition for habeas corpus directed at his second attorney's ineffective assistance because he did not appeal the revocation judgment. In April 2014, the district court held a hearing on Cary's petition, granted it, and vacated the September 2013 revocation judgment. The district court then reimposed the identical judgment, sentence, and conditions of supervised release that it had imposed in September 2013.

Cary now appeals, challenging various conditions of the supervised release reimposed on him at the April 2014 hearing and that he will be subject to for ...


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