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 ...