USA v. Donnie Joe Singleton

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11462
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DONNIE JOE SINGLETON,
Defendant-Appellant.
____________________
Appeals from the United States District Court
for the Southern District of Alabama
D.C. Docket No. 1:14-cr-00104-KD-N-1
____________________
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2 Opinion of the Court 23-11462
____________________
No. 23-11464
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DONNIE JOE SINGLETON,
Defendant-Appellant.
____________________
Appeals from the United States District Court
for the Southern District of Alabama
D.C. Docket No. 1:03-cr-00089-KD-C-1
____________________
Before ROSENBAUM, G RANT, and L AGOA, Circuit Judges.
PER CURIAM:
Donnie Joe Singleton appeals the district court’s revocation
of his supervised release and his 24-month split sentence that the
district court imposed after revoking his supervised release.
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23-11462 Opinion of the Court 3
Singleton first argues that the district court erred in considering the
results of his polygraph tests and the resulting admissions because
his conditions of supervised release allowed only for non-supervi-
sory polygraph tests for the purpose of his mental health treat-
ment. Singleton next argues that the district court plainly erred in
finding that he had violated the condition of supervised release lim-
iting his access to the internet. Finally, Singleton asserts that his 24-
month split sentence is substantively unreasonable. For the reasons
discussed below, we affirm.
I.
We review questions of law from a revocation proceeding
de novo. United States v. Frazier, 26 F.3d 110, 112 (11th Cir. 1994). We
review the revocation of a defendant’s supervised release for an
abuse of discretion. Id. A district court’s findings of fact during a
revocation of supervised release hearing “are binding on this
[C]ourt unless clearly erroneous.” United States v. Almand, 992 F.2d
316, 318 (11th Cir. 1993) (quotation marks omitted). “Where the
evidence has two possible interpretations, the district court’s
choice between them cannot be clearly erroneous.” United States v.
Foster, 155 F.3d 1329, 1331 (11th Cir. 1998). But arguments not
raised before the district court are reviewed for plain error. United
States v. Moore, 22 F.4th 1258, 1264 (11th Cir. 2022.
Issues not raised in an appellant’s initial brief are deemed
abandoned and will not be addressed absent extraordinary circum-
stances. United States v. Campbell, 26 F.4th 860, 873 (11th Cir. 2022)
(en banc).
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A district court may revoke a defendant’s supervised release
if it “finds by a preponderance of the evidence that the defendant
violated a condition of supervised release.” 18 U.S.C. § 3583(e)(3).
The preponderance of the evidence standard “simply requires the
trier of fact to believe that the existence of a fact is more probable
than its nonexistence.” United States v. Trainor, 376 F.3d 1325, 1331
(11th Cir. 2004) (quotation marks omitted).
We have held that the Sixth Amendment does not apply in
hearings for the revocation of supervised release, probation, or pa-
role. United States v. Reese, 775 F.3d 1327, 1329 (11th Cir. 2015). We
have similarly held that the Federal Rules of Evidence do not apply
in supervised release revocation hearings. Frazier, 26 F.3d at 114.
“Although the Federal Rules of Evidence do not apply in supervised
release revocation hearings…[d]efendants involved in revocation
proceedings are entitled to certain minimal due process require-
ments.” Id. (citing Morrissey v. Brewer, 408 U.S. 471 (1972) (involving
parole revocation) and Gagnon v. Scarpelli, 411 U.S. 778 (1973) (in-
volving probation revocation)).
In examining the admissibility of polygraph tests at trial un-
der the Federal Rules of Evidence, we have limited such evidence
to two situations, namely: (1) where the parties have stipulated to
the circumstances of the test and the scope of its admissibility; or
(2) to impeach or corroborate witness testimony. United States v.
Piccinonna, 885 F.2d 1529, 1536 (11th Cir. 1989) (en banc). However,
in the context of supervised release, we have recognized that a dis-
trict court may impose polygraph testing as a condition of
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23-11462 Opinion of the Court 5
supervised release. United States v. Taylor, 338 F.3d 1280, 1283-84
(11th Cir. 2003); United States v. Zinn, 321 F.3d 1084, 1089-90 (11th
Cir. 2003).
In Zinn, the district court imposed a special condition of su-
pervised release that ordered Zinn to “participate as directed in a
program of mental health treatment including a sexual offender
treatment program” and to “abide by the rules, requirements and
conditions of the treatment program, including submitting to pol-
ygraph testing…to aid in the treatment and supervision process.”
Zinn, 321 F.3d at 1086. We held that the requirement was permis-
sible as polygraph testing to ensure compliance with probationary
terms was both reasonably related to Zinn’s offense and personal
history, and as the tests, when reasonably applied, would not un-
duly burden his rights. Id. at 1090.
In Taylor, the district court imposed a special condition of
supervised release that ordered Taylor to “participate in a mental
health program specializing in sexual offender treatment approved
by the probation officer, and abide by the rules, requirements and
conditions of the treatment program, including submitting to pol-
ygraph testing to aid in the treatment and supervision process.”
Taylor, 338 F.3d at 1283. We held that the condition was permissible
as it helped ensure Taylor’s compliance with the terms of super-
vised release and helped ensure that he received the required men-
tal treatment. Id. We noted that examinations of this kind help
ensure compliance with the conditions of supervised release. Id.
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6 Opinion of the Court 23-11462
n.2 (citing Owens v. Kelley, 681 F.2d 1362, 1364, 1369-70 (11th
Cir.1982)).
We have “recognized the vital role probation officers fulfill
in effectuating the district court’s sentence.” Zinn, 321 F.3d at 1092.
We have held that a probation officer is an “arm of the court” and
a “liaison between the sentencing court . . . and the defendant.”
United States v. Bernardine, 237 F.3d 1279, 1283 (11th Cir. 2001) (quo-
tation marks omitted). A probation officer is statutorily mandated
to perform enumerated duties and any other duty that the court
may designate. Id.; see 18 U.S.C. § 3603(10).
As an initial matter, the government argues on appeal that
Singleton’s arguments about his post-polygraph statements should
be reviewed for plain error as he failed to raise them before the dis-
trict court. But during his revocation hearing, Singleton objected
to both the consideration of the polygraph results and the things
leading from it. This was sufficient to preserve his current chal-
lenge. Additionally, on appeal Singleton challenges the district
court’s consideration of his polygraph test results only on the
ground that the use of supervisory polygraph testing was not
within the scope of his conditions of supervised release. He has
not challenged the general admissibility of polygraph results at a
revocation hearing nor raised any constitutional challenges arising
from the use of the polygraph testing in revoking his supervised
release. Accordingly, he has abandoned any such arguments.
Campbell, 26 F.4th at 873.
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23-11462 Opinion of the Court 7
Here, we conclude that the district court did not err in con-
sidering the polygraph test results and the resulting admissions.
Singleton’s terms of supervised release mandated that he “shall
participate in a program of mental health treatment/sex offender
treatment, evaluation, testing, clinical polygraphs and other assess-
ment instruments, as directed by the Probation Office.” While less
clearly stated than in Zinn or Taylor, the condition authorizes the
probation office to order polygraph testing, as was conducted in
this case. Even assuming, arguendo, that “clinical polygraphs” were
limited to polygraphs used solely for Singleton’s mental health, the
polygraphs here fall within the catch-all provision of “other assess-
ment instruments.” Accordingly, the district court did not err in
considering the polygraph test results and Singleton’s later admis-
sions as the polygraph tests were authorized by his conditions of
supervised release. We thus affirm as to this issue.
II.
The Sentencing Guidelines provide special conditions of su-
pervised release. U.S.S.G. § 5D1.3(d). The Guidelines recommend
a “computer” or “interactive computer service” restriction for a de-
fendant who has committed a sex offense, including coercion and
enticement of a minor and receipt and transportation of child por-
nography, in which the defendant used such items. Id.
§ 5D1.3(d)(7)(B); id. § 5D1.2, comment. (n.1(A)(ii)).
We have “uniformly upheld conditions prohibiting defend-
ants convicted of sex offenses from accessing a computer or the
Internet for the duration of their supervised release.” United States
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8 Opinion of the Court 23-11462
v. Carpenter, 803 F.3d 1224, 1239 (11th Cir. 2015). In Zinn, we held
that a special condition restricting the defendant’s internet usage
was not overly broad because he could still use the internet for valid
purposes by obtaining his probation officer’s prior permission. 321
F.3d at 1093. In doing so, we recognized the importance of the in-
ternet in society, but noted that “the particular facts of [the] case
highlight the concomitant dangers of the Internet and the need to
protect both the public and sex offenders themselves from its po-
tential abuses.” Id. Additionally, in Taylor, we concluded that a spe-
cial condition restricting the defendant’s internet usage was “unde-
niably related” to the § 3553(a) factors, especially considering that
the defendant “used the internet as a tool” in the underlying of-
fense. 338 F.3d at 1285. We have favorably cited Zinn and Taylor to
uphold computer and internet use restrictions, including life-time
restrictions on computer and internet use. See, e.g., United States v.
Bobal, 981 F.3d 971, 976 (11th Cir. 2020) (applying Zinn); Carpenter,
803 F.3d at 1239 (applying Zinn and Taylor).
Because Singleton failed to challenge the district court’s in-
terpretation and application of his supervisory conditions before
the district court, we review only for plain error. Moore, 22 F.4th at
1264.
Here, we conclude that the district court did not plainly err
in finding that Singleton had violated his conditions of supervised
release by using an online streaming service. Singleton’s terms of
supervised release stated that he “shall not possess or use a com-
puter with access to any on-line computer service at any location
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23-11462 Opinion of the Court 9
(including employment) without the permission of the Probation
Office.” Despite this, he admitted in a signed affidavit to using a
device connected to the internet to stream documentaries contain-
ing naked children from an internet based streaming platform,
namely Netflix. This constitutes a clear breach of his supervisory
conditions and, to the extent that he argues that such a condition
exceeds the permitted scope of supervisory conditions, his argu-
ments are meritless. See Zinn, 321 F.3d at 1093. We thus affirm as
to this issue.
III.
The substantive reasonableness of a sentence imposed upon
the revocation of supervised release is normally reviewed under
the deferential abuse-of-discretion standard. United States v. Trailer,
827 F.3d 933, 935 (11th Cir. 2016). A defendant may preserve an
objection to the substantive reasonableness of a sentence by advo-
cating for a shorter sentence before the district court, thereby argu-
ing that a shorter sentence would have been sufficient, and a longer
sentence greater than necessary, to comply with statutory purposes
of punishment. Holguin-Hernandez v. United States, 140 S. Ct. 762,
767 (2020).
We will vacate the sentence “if, but only if, [it we are] left
with the definite and firm conviction that the district court com-
mitted a clear error of judgment in weighing the § 3553(a) factors
by arriving at a sentence that lies outside the range of reasonable
sentences dictated by the facts of the case.” United States v. Irey, 612
F.3d 1160, 1190 (11th Cir. 2010) (en banc) (quotation marks
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10 Opinion of the Court 23-11462
omitted). We may not “set aside a sentence merely because [it]
would have decided that another one is more appropriate,” because
the district court’s sentence need only be “a reasonable one.” Id. at
1191. The party challenging the sentence bears the burden of
showing it to be unreasonable in light of the record and the
§ 3553(a) factors. United States v. Langston, 590 F.3d 1226, 1236 (11th
Cir. 2009).
The district court must issue a sentence “sufficient, but not
greater than necessary” to comply with the purposes of 18 U.S.C.
§ 3553(a)(2). 18 U.S.C. § 3553(a). These purposes include the need
for a sentence to reflect the seriousness of the offense, promote re-
spect for the law, provide just punishment, deter criminal conduct,
and protect the public from future criminal conduct. Id.
§ 3553(a)(2). Additional considerations include the nature and cir-
cumstances of the offense, the history and characteristics of the
defendant, the applicable guideline range, the need to avoid unwar-
ranted sentence disparities among similarly situated defendants,
and the pertinent policy statements of the Sentencing Commis-
sion. Id. § 3553(a)(1)-(7). The weight due each § 3553(a) factor lies
within the district court’s sound discretion, and we will not substi-
tute its judgment for that of the district court. United States v. Jo-
seph, 978 F.3d 1251, 1266 (11th Cir. 2020). However, a district court
can abuse its discretion when it (1) fails to consider relevant factors
that were due significant weight, (2) gives significant weight to an
improper or irrelevant factor, or (3) commits a clear error of judg-
ment by balancing the proper factors unreasonably. United States v.
Kuhlman, 711 F.3d 1321, 1326-27 (11th Cir. 2013). Nevertheless, a
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23-11462 Opinion of the Court 11
district court may reasonably attach great weight to a single factor.
Id. at 1327. We have “upheld large upward deviations based solely
on an offender’s extensive criminal history.” United States v. Osorio-
Moreno, 814 F.3d 1282, 1288 (11th Cir. 2016).
Here, we conclude that the district court’s 24-month split
sentence is substantively reasonable. On appeal, Singleton argues
that the district court placed too much weight on his prior criminal
history, inflating his sentence beyond what was reasonable given
his violations. However, a district court may reasonably attach
great weight to a single factor and we have upheld large upward
deviations based solely on an offender’s extensive criminal history.
Kuhlman, 711 F.3d at 1327; Osorio-Moreno, 814 F.3d at 1288. In this
case, Singleton’s extensive criminal history involved the abuse of
children and various child pornography offenses, one of which he
committed while on supervised release. Despite this, less than two
months after being released from custody Singleton again violated
his conditions of supervised release, establishing a residence within
2,000 feet of a daycare and accessing the internet. Given this, we
conclude that the district court did not commit a “clear error of
judgment in weighing the § 3553(a) factors” by imposing a 24-
month split sentence. Irey, 612 F.3d at 1190. Accordingly, we af-
firm in this respect as well.
IV.
For all these reasons, we affirm the district court’s revoca-
tion of Singleton’s supervised release and the 24-month split
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12 Opinion of the Court 23-11462
sentence imposed by the district court after the revocation of Sin-
gleton’s supervised release.
AFFIRMED.
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