Cannot Rely on Bare Arrest Records in Sentencing; Prohibiting Indirect Conduct with Minors was Substantively Unreasonable

United States v. Windless, No. 12-60370 (June 12, 2013) (Higginbotham, Owen, Graves)

The panel found reversible error in the district court’s sentencing of Windless, who had failed to register under SORNA. The district court explicitly referenced Windless’ arrest record in sentencing him at the top of the Guidelines and fashioning his conditions of supervised release. Three of these five arrests were "bare" in that they were not accompanied by a description of the alleged conduct. One arrest had a description of conduct suggesting his guilt, and the last arrest had a description of conduct suggesting his innocence. "The district court attempted to justify its reliance by distinguishing between ‘special conditions’ of release and a defendant’s ‘sentence.’" The panel reversed, stating "that distinction is illusory: supervised release and its conditions are part of a defendant’s sentence." The same due process concerns apply to both. "[W]hether ordering a term of imprisonment or conditions of supervised release, a district court may not rely on bare arrest records."

The panel also vacated a special condition of release prohibiting the defendant from having "direct or indirect contact" with a minor "unless accompanied by an adult who has been approved in advance by the probation officer." The panel found this condition to be substantively unreasonable under these circumstances. "[T]o forbid all ‘indirect’ contact works a serious restriction on liberty, making a trip to the grocery store or a place of worship a trip that may end in imprisonment via revocation sentence."

So, keep an eye out for any reliance on bare arrest records or overly broad and unreasonable conditions of supervised release. The Fifth Circuit might just agree with you.