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November 28, 2011

Notable Ninth Circuit ruling questioning residency restriction as supervised release condition

While on the road for the holiday weekend, I missed a notable Ninth Circuit ruling handed down on Wednesday concerning the creation of a residency restriction as a supervised release condition for a sex offender. The panel opinion in US v. Rudd, No. 10-50254 (9th Cir. Nov. 23, 2011) (available here), gets started this way:

William Newton Rudd appeals the district court’s imposition of a residency restriction as a special condition of supervised release, following his conviction and sentencing for one count of violating 18 U.S.C. § 2423(c), which prohibits U.S. citizens from traveling to a foreign country and engaging in illicit sexual conduct.  The special condition prohibits Rudd from residing “within 2,000 feet of school yards, parks, public swimming pools, playgrounds, youth centers, video arcade facilities, or other places primarily used by persons under the age of 18.”  We have jurisdiction pursuant to 18 U.S.C. § 3742.  Because the district court did not provide any explanation for its imposition of the 2,000 foot residency restriction, and none is apparent from the record, the district court committed procedural error.  Thus, we vacate the special condition and remand to the district court to explain or reconsider the 2,000 foot residency restriction. 

November 28, 2011 at 03:15 PM | Permalink

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Comments

How on earth is this what the lower court calls a "minor variation?"

Recommended plea-agreement: (rough approximations)

1% of the city is off-limits to you. (Don't frequent or reside within 100 feet of schools, parks, and various other facilities.)

Court-granted PSR recommendation:

99% of the city is off-limits to you. (Don't reside within 2,000 feet of schools, parks, and various other facilities.)

I would be interested to see how the lower court reasons on remand that 2,000 feet would “involve no greater deprivation of liberty than is reasonably necessary for the purposes of supervised release,” in light of the appellate court's direct query of whether or on what basis a 1,000, 3,000, or 5,000 foot buffer might be appropriate.

Better yet would be to see a legislature's justification for any such buffer.

Posted by: SJS | Nov 29, 2011 2:13:56 AM

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