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United States v. Hill

United States District Court, District Circuit

August 12, 2013

UNITED STATES OF AMERICA
v.
JAMES D. HILL, also known as FOXY, Defendant.

MEMORANDUM OPINION

ROSEMARY M. COLLYER, District Judge.

In 2005, Defendant James D. Hill pled guilty to conspiracy to distribute and possess with intent to distribute one kilogram or more of a mixture or substance containing phencyclidine (PCP), ecstasy, and fifty grams or more of cocaine base. The Court imposed a sentence of 108 months of incarceration, which Mr. Hill has now served, to be followed by five years of supervised release. Following Mr. Hill's release to the community, the United States Probation Office petitioned the Court to amend his conditions of supervised release to require a sex offender treatment assessment and possible treatment based on Mr. Hill's 2002 conviction for attempted second degree child sexual abuse. Mr. Hill vigorously opposes the proposed amendment and, in turn, asks the Court to vacate the "no contact with minors" supervised release condition imposed at sentencing. Both requests are fully briefed. For the following reasons, the USPO petition will be denied and Mr. Hill's motion will be granted only in part.

I. FACTS

Along with six co-defendants, [1] Mr. Hill entered a "wired" plea agreement with the government pursuant to Fed. R. Crim. P. 11(c)(1)(C)[2] under which each defendant pled guilty to conspiracy to distribute and possess with intent to distribute one kilogram or more of a mixture or substance containing phencyclidine (PCP), ecstasy, and fifty grams or more of cocaine base, in violation of 21 U.S.C. § 846 and 21 U.S.C. §§ 841(b)(1)(B)(iii), (b)(1)(B)(iv), and (b)(1)(C) as then effective. See Judgment [Dkt. 525] at 1.

Mr. Hill's sentencing was held on April 4, 2006. The Presentence Investigation Report ("PSR") prepared for the Court by the United States Probation Office ("USPO") stated that, in 2002, Mr. Hill was convicted in the District of Columbia Superior Court of attempted second degree child sexual abuse[3] and sentenced to 180 days of incarceration. That conviction arose from an incident in which "Mr. Hill, who was 20 years old at the time, became involved with a young woman who represented herself to be 16 or 17 years old, but was in fact 14 years old."[4] Def. Opp. Probation Pet. ("Def. Opp.") [Dkt. 1206] at 2. Mr. Hill's 2005 sentencing memorandum stated further that "[h]e was arrested for the [a]buse charges and following said arrest, went to her home, knocked down the door and punched her for lying to him about her age." Def. Sentencing Mem. [Dkt. 513] at 3. As a result of his Superior Court conviction, Mr. Hill was required to register as a sex offender for ten years under District of Columbia law, but no conditions were imposed that limited his contact with children. Def. Opp. at 2; see also D.C. Code § 22-4001 et seq.

This Court imposed a sentence of 108 months' incarceration with credit for time served, to be followed by five years of supervised release. Judgment at 2-3. The Court imposed two special conditions of supervised release in addition to the standard conditions:

The defendant shall have no direct, or indirect, contact with children, age 18 or younger, and shall refrain from loitering in any place where children congregate, including but not limited to residences, arcades, parks, playgrounds, and schools. He shall not reside with a child or children under the age off [sic] 18 without the expressed and written approval of the minor's legal guardian and the written permission of the Court.
The defendant shall comply with the Sex Offender Registration requirements in any state or jurisdiction where he resides, is employed, carries on a [sic] avocation, or is a student.

Id. at 3. Mr. Hill did not appeal his conviction or sentence.[5]

On January 24, 2013, Mr. Hill was released from incarceration, beginning a term of supervised release that will expire on January 24, 2018. The USPO petitioned the Court on February 15, 2013, for a hearing and modification to Mr. Hill's conditions of supervised release. Specifically, the USPO stated:

Based on Mr. Hill's prior conviction for... Attempted Second Degree Child Sexual Abuse, the probation officer believes the conditions of supervised release should be modified as follows:
Treatment Assessment: You shall participate in and successfully complete a program of sex offender assessment and treatment, as directed by the probation officer. This assessment and treatment may include physiological testing such as a polygraph or plethysmograph testing to assist in planning, case monitoring, and supervision. At the direction of the probation officer, you shall pay for all or a portion of any treatment program. Any refusal to submit to such assessment or tests as scheduled is a violation of the conditions of release. To allow the supervising probation officer to review your course of treatment and progress with the treatment provider(s), you shall waive your right of confidentiality in treatment and sign any necessary releases for access to any records imposed as a consequence of this judgment.

Probation Pet. [Dkt. 1200] ("Petition") at 1-2. The Petition noted that the government did not oppose the request but that Mr. Hill did. Id. at 2.

The parties convened on March 22, 2013, to address the Petition. Mr. Hill was present, as were an AUSA, the petitioning Probation Officer, and Mr. Hill's newly-appointed lawyer from the Office of the Federal Public Defender. Counsel for Mr. Hill and Mr. Hill himself voiced strong opposition to the Petition. Addressing the Court on his own, Mr. Hill stated that he found the potential use of a penile plethysmograph[6] particularly repugnant. The Probation Officer noted that an alternative to penile plethysmography was available but continued to request an amendment to Mr. Hill's conditions of supervised release. Upon counsel's request, the Court did not rule immediately and permitted the parties to file additional briefs. Throughout their briefs, the parties refer to the Petition as encompassing a Sex Offender Treatment Assessment-for short, "SOTA."

The Court now has before it two briefs from Mr. Hill's counsel, two briefs from counsel for the government, and a submission from the USPO ("USPO Submission").[7] Mr. Hill continues to oppose the Petition and, in addition, asks the Court to vacate the "no contact with children" supervised release condition imposed at sentencing. See Def. Opp.; see also Def. Reply [Dkt. 1217]. The government asks the Court to grant the Petition and continue the other terms of release without change. See Gov't Mem. [Dkt. 1210] & Gov't Supp. Mem. [Dkt. 1215].

II. LEGAL STANDARD

18 U.S.C. § 3583(d) governs the imposition of conditions of supervised release at sentencing. In ...


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