Sentencing courts have been given the green light in federal criminal cases to modify the terms of supervised release to include a sexual offender assessment whenever a defendant has a prior sexual offense conviction, even if the conviction is twelve years old.
In a case recently decided by the Ninth Circuit Court of Appeals, the defendant pleaded guilty to unlawful possession of a firearm. He was sentenced to five years of supervised release. The probation office later asked the court to modify the terms of supervision to require the defendant to also undergo a sexual offender assessment. The probation office justified this request by citing to the defendant’s two prior convictions – a 1980 conviction for raping a young woman at knife point, and a 1990 conviction for raping a fourteen year-old girl at gunpoint. The sentencing court agreed and modified the terms of release to include a sex offender assessment.
A sentencing court can only impose a condition on supervised release if it involves no greater deprivation of liberty than is necessary to “punish, deter, protect the public from or rehabilitate the defendant.” The Ninth Circuit upheld the sentencing court’s decision. The court agreed that because the last sexual offense and the current conviction both involved a firearm, requiring the assessment as part of the terms for supervised release was proper in an effort to protect the public. The court noted that while the last sexual conviction was twelve years old, it was not stale.
In closing its opinion, the Ninth Circuit noted that the defendant did not challenge the constitutionality of the sexual offender assessment. The defendant had only argued that the assessment was an abuse of the sentencing court’s discretion. It is possible that the Ninth Circuit is indicating there may be a different outcome if a future defendant raises a constitutional challenge.
You have the right to have an attorney represent you at sentencing hearings and at modification hearings. If your probation officer attempts to modify the terms of your release and asks you to sign a voluntary modification, call your attorney first.