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United States v. Sherwood

United States Court of Appeals, Eighth Circuit

March 6, 2017

United States of America Plaintiff- Appellee
v.
Ricky Isiah Sherwood Defendant-Appellant

          Submitted: October 21, 2016

         Appeal from United States District Court for the District of Minnesota - St. Paul

          Before LOKEN, SMITH, and COLLOTON, Circuit Judges.

          LOKEN, CIRCUIT JUDGE.

         Ricky Sherwood sexually assaulted a fellow high school student on the Kadena Air Base in Okinawa, Japan, where the families of Sherwood and the victim resided. Sherwood was indicted in the District of Minnesota, which had jurisdiction under the Military Extraterritorial Jurisdiction Act, 18 U.S.C. §§ 3261 et seq, and pleaded guilty to sexual abuse in violation of 18 U.S.C. §§ 2242(2), 2246(2)(A), and 3261(a)(1). At sentencing, the district court varied downward from Sherwood's advisory guidelines range and sentenced him to 60 months in prison followed by the minimum supervised release term of five years. See 18 U.S.C. § 3583(k). Sherwood appeals two special conditions of supervised release that require him to provide any personal financial information the Probation Office requests and to obtain Probation Office approval before incurring new credit charges or opening additional lines of credit. Reviewing these special conditions for abuse of discretion, we reverse.

         I. Background.

         On the afternoon of the assault, Sherwood invited the victim and other classmates to his home and provided everyone with alcohol. At some point, Sherwood and the victim went upstairs and began having sex. After the victim became so intoxicated she could not refuse to participate, Sherwood continued their sexual activity for more than one hour, filming what was now an assault. The videos show Sherwood laughing as he continued the assault with a victim who was unable to hold herself in a seated position or to speak clearly. After Sherwood left to work his shift as a base lifeguard, his friends carried the victim from the house and left her on a public park bench, where a school counselor found her wearing Sherwood's clothes and still severely intoxicated.

         After Sherwood pleaded guilty, the parties submitted extensive pre-sentencing position papers. The government argued that Sherwood video-recorded his sexual assault and should therefore be sentenced within the guidelines range resulting from a cross reference to enhancements for producing child pornography. Sherwood argued the child pornography guidelines should not apply to his offense, and he should receive a downward variance to 24 months in prison because of his youth, his status as a first offender, and the fact that his guardians -- a maternal aunt and uncle --had relocated to Minnesota to assist Sherwood's rehabilitation. The Presentence Investigation Report and the government did not address whether special conditions of supervised release should be imposed, and the district court gave no advance notice of what conditions would be considered. Sherwood's uncle, a psychologist, and the victim's parents testified or spoke at the lengthy sentencing hearing.

         At the end of the hearing, the district court described Sherwood's crime as "absolutely horrible, " "disgusting, " and "infuriating, " but granted a substantial downward variance because "I don't see this as a child pornography case." The court explained that it was imposing a "serious sentence" of 60 months in federal custody, in part because, prior to Sherwood pleading guilty, the court had revoked his pretrial release to a halfway house after he refused to complete job-search duties and attend school, committed numerous infractions of halfway house rules and policies, and attempted to dispose of synthetic marijuana for a fellow resident. The court noted that Sherwood's violations at the halfway house revealed that he was still a "stupid kid doing stupid kid stuff instead of . . . trying to rehabilitate and get what I think is a very severe alcohol issue under control."

         The district court also imposed a five-year term of supervised release, subject to applicable mandatory and standard conditions and eleven special conditions of supervised release. See U.S.S.G. § 5D1.3. At issue on appeal are the last two special conditions appearing in the court's written judgment:

j. The defendant shall provide the probation officer access to any requested financial information, including credit reports, credit card bills, bank statements, and telephone bills.
k. The defendant shall be prohibited from incurring new credit charges or opening additional lines of credit without approval of the probation officer.

         After the court read the supervised release conditions, defense counsel stated: "Your Honor, I would ask that the Court note an objection to the supervision conditions, particularly the financial ones that you ordered." The court responded, "All right. I think under the circumstances those are appropriate. . . . Those will be in ...


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