6-12-2013 Mississippi:US v Windless
A federal district court may not rely on "bare arrest records" when sentencing a defendant. The district court believed that it could rely on those records when crafting conditions of supervised release. We disagree.
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We VACATE imposition of the mental-health treatment condition and REMAND for resentencing. We REVERSE imposition of the "no direct or indirect contact" condition, which the district court may not impose (as currently phrased) on remand.
New sentence ordered for sex offender who failed to register after coming to Miss. from Minn.
JACKSON, Miss. — A convicted sex offender has won a new sentencing hearing for failing to register in Mississippi because a federal judge erred in putting conditions on his supervised release, a federal appeals court panel has ruled.
Calvin Windless pleaded guilty in 2011 to failing to register as a sex offender in Mississippi. He was sentenced to two-and-a-half years in prison plus 10 years of supervised release.
Windless did not challenge the lengths of the prison sentence and supervised release. He argued the conditions put on his supervised release were unreasonable.
A three-judge panel of the New Orleans-based 5th U.S. Circuit Court of Appeals earlier this month agreed with Windless.
Court records show Windless was convicted in 1993 in Cook County, Ill. Windless, then 15, kidnapped a 7-year-old girl and twice forced her to perform oral sex. He was convicted of aggravated kidnapping and two counts of aggravated criminal sexual assault. He was paroled in 1997 and, after a brief return to prison, was released finally in 1999.
At some point after his release, Windless moved to Minnesota, where he was convicted of failing to register in 2008. Court records show he maintained his registration until he failed to notify Minnesota authorities when he moved to Belzoni, Miss., in 2010.
Windless was arrested by U.S. marshals on a warrant from Minnesota and was indicted when he admitted he had not registered in Mississippi. He pleaded guilty in October of 2011 to failing to register and was sentenced in April 2012 in Aberdeen, Miss.
Windless argued failing to register was not a sex crime and conditions on supervised release for one convicted of a sex crime should not apply to him.
U.S. District Judge Sharion Aycock specified Windless could not have direct or indirect contact with anyone younger than 18 unless accompanied and supervised by an adult who has been approved in advance by his probation officer.
"In essence, Mr. Windless could not leave the confines of his home without violating the terms of his supervised release," his attorneys argued in court documents.
Aycock also ordered Windless to undergo mental health treatment. Windless' attorneys argued he would have to live in Mississippi forever because no other state would want to have to provide mental health treatment for him.
Prosecutors said when the judge considered Windless' crime, ongoing criminal history and failure to register, the special conditions on his release "were necessary and did not constitute an unnecessary deprivation of appellant's liberty."
The 5th Circuit panel, in a ruling written by Judge Patrick Higginbotham, threw out the prison term and conditions tied to supervised release.
Higginbotham said the restrictions were overly broad and, for example, would prohibit him from going to a grocery store unaccompanied.
"Circumstances may, of course, permit a sentencing court to limit an offender's access to places where children are likely to be unsupervised or poorly supervised. It may be reasonable to bar an offender from initiating unsupervised or poorly supervised contact with others' children and reasonable to require him to report contact that children initiate," Higginbotham wrote.
"But to 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," the judge wrote. ..Source.. by JACK ELLIOTT JR
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