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United States v. Washington

United States Court of Appeals, Second Circuit

September 18, 2018

United States of America, Appellee,
v.
Brian Washington, a/k/a Brian E. Ward, a/k/a Brian K. Ward, a/k/a Brian E. Washington, a/k/a Brian Eugene Washington, a/k/a Brian Ward, a/k/a Eugene Brian Ward, Defendant-Appellant.

          Argued: August 15, 2018

          On Appeal from the United States District Court for the Southern District of New York

         Defendant-Appellant Brian Washington ("Washington") appeals the sentence imposed for his conviction on a charge of failure to register as a sex offender in violation of 18 U.S.C. § 2250. On appeal, Washington argues that the United States District Court for the Southern District of New York (George B. Daniels, Judge) unlawfully modified his sentence by including in the written judgment a duty to submit to polygraph testing that was not mentioned during pronouncement of sentence. We hold that inclusion of a duty to submit to polygraph testing is, in the circumstances presented here, an impermissible modification of the spoken sentence. We REMAND the cause to the District Court for entry of an amended judgment from which the reference to polygraph testing has been deleted.

          Jacob Warren, Assistant United States Attorney (Anna M. Skotko, Assistant United States Attorney, on the brief), for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, NY, for Appellee.

          Allegra Glashausser, Appeals Bureau, Federal Defenders of New York, Inc., New York, NY, for Defendant-Appellant.

          Before: Cabranes and Pooler, Circuit Judges, and Oetken, District Judge. [*]

          Jose A. Cabranes, Circuit Judge

         Defendant-Appellant Brian Washington ("Washington") appeals the sentence imposed for his conviction on a charge of failure to register as a sex offender in violation of 18 U.S.C. § 2250. On appeal, Washington argues that the United States District Court for the Southern District of New York (George B. Daniels, Judge) unlawfully modified his sentence by including in the written judgment a duty to submit to polygraph testing that was not mentioned during pronouncement of sentence. We hold that inclusion of a duty to submit to polygraph testing is, in the circumstances presented here, an impermissible modification of the spoken sentence. We REMAND the cause to the District Court for entry of a modified written judgment from which the reference to polygraph testing has been deleted.

         I.

         This appeal arises from a discrepancy between the terms of sentence that the District Court pronounced in Washington's presence at the sentencing hearing and the terms of sentence that the District Court entered in its written judgment.

         Washington's sentence includes a five-year term of supervised release. In the Presentence Investigation Report ("PSR") prepared before sentencing and reviewed by all parties, including the defendant, the United States Probation Office recommended that the District Court impose the usual mandatory and standard conditions and several special conditions for the term of supervised release. One proposed special condition required Washington to participate in a sex-offender-treatment program and to comply with all the rules of the program, "including submission to polygraph testing." PSR at 24, United States v. Washington, No. 1:16-cr-00628-GBD (S.D.N.Y. July 27, 2017), ECF No. 21. The entire proposed special condition ran as follows:

You must undergo a sex-offense-specific evaluation and participate in an outpatient sex offender treatment and/or outpatient mental health treatment program approved by the U.S. Probation Office. You must abide by all rules, requirements, and conditions of the sex offender treatment program(s), including submission to polygraph testing. You must waive your right of confidentiality in any records for mental health assessment and treatment imposed as a consequence of this judgment to allow the probation officer to review your course of treatment and progress with the treatment provider. You must contribute to the cost of services rendered based on your ability to pay and the availability of third-party payments. The Court authorizes the release of available psychological and psychiatric evaluations and reports, including the presentence investigation report, to the sex offender treatment provider and/or mental health treatment provider.

Id. (emphasis added).

         The District Court imposed this special condition at Washington's sentencing hearing, together with all the other mandatory, standard, and special conditions of supervised release that the PSR had recommended. But the District Court stated the sex- offender-treatment special condition more briefly than the PSR had. Omitted, among other things, was any ...


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