UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-6742

UNITED STATES OF AMERICA,

Petitioner – Appellee,

v.

JOHNNY LEE WILLIAMS,

Respondent – Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, District Judge. (5:11-hc-02204-D)

Submitted: September 24, 2021 Decided: November 2, 2021

Before FLOYD, THACKER, and HARRIS, Circuit Judges.

Affirmed by unpublished opinion. Judge Harris wrote the opinion, in which Judge Floyd and Judge Thacker joined.

G. Alan DuBois, Federal Public Defender, Jaclyn L. Tarlton, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Robert J. Higdon, Jr., United States Attorney, Michael G. James, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PAMELA HARRIS, Circuit Judge:

Johnny Lee Williams appeals from an order of the district court modifying the terms

of his discharge from civil commitment. After Williams and the government agreed to a

set of conditions allowing for his safe release, the probation department responsible for

supervising Williams requested two changes to those conditions. The district court granted

one modification, involving home detention and GPS monitoring, over Williams’s

opposition. On appeal, Williams challenges that decision, mainly on the ground that the

district court lacked statutory authority to impose the modified conditions. But Williams

did not raise that argument to the district court, and we will not address it in the first

instance. Finding that the district court did not otherwise abuse its discretion, we affirm.

I.

In 2011, as Williams neared the end of a 210-month federal sentence for a firearms

offense, the government certified him to be a “sexually dangerous person” under the Adam

Walsh Child Protection and Safety Act of 2006, which provides for the civil commitment

of such persons in the custody of the Bureau of Prisons.

; see

§ 4247(a)(5) (defining “sexually dangerous person” as one who has “engaged or attempted

to engage in sexually violent conduct or child molestation and who is sexually dangerous

to others”). In support, it cited Williams’s multiple prior convictions for violent sex

offenses, many of which involved minors, spanning decades before his last arrest. After a

hearing, the district court agreed with the government and ordered Williams committed.

2 Years later, Williams moved for a hearing to determine whether he should be

discharged because he was “no longer sexually dangerous to others” or would “not be

sexually dangerous to others if released under a prescribed regimen of medical, psychiatric,

or psychological care or treatment.” J.A. 56 (quoting

(d)(2)); see

(h). Soon after, he and the government reached a settlement, reporting to

the district court that Williams “will not be sexually dangerous to others if released under

a prescribed regimen of medical, psychiatric, or psychological care o[r] treatment.”

J.A. 62. The parties jointly proposed a consent order that would discharge Williams from

commitment subject to 39 conditions of release. Those conditions included that Williams

would be supervised by the U.S. Probation Office for the Southern District of Texas

(“Probation”), subject to that district’s standard conditions of supervised release and “any

other conditions adopted by Probation,” J.A. 67; live in a residential reentry center for at

least six months; and “[b]e monitored with location monitoring using Global Positioning

System (‘GPS’), for at least six (6) months,” J.A. 71. The parties also agreed that

“Probation may seek modification of these conditions.” J.A. 76. In March 2020, after a

hearing, the district court approved and entered the consent order exactly as the parties had

proposed it.

3 This appeal arises from Probation’s request, about a month later, to modify the

consent order. As relevant here, * Probation reported that GPS monitoring was not feasible

in the reentry center where Williams planned to live after his release. As a result, Probation

asked to amend the consent order to require GPS monitoring only “[u]pon completion” of

Williams’s residence in that facility, and “until released by court order.” J.A. 102. Further,

Probation requested that Williams be placed on home detention (subject to several

exceptions) during the monitoring period.

Williams opposed this request, though only in part. Acknowledging that “GPS

monitoring [was] not compatible with the halfway house in Texas” and that “a period of

GPS monitoring after his exit from the halfway house may be part of a step-down process,”

he “[did] not oppose GPS monitoring for a period of 90 days after completion of the

halfway house placement.”

But he objected to “indefinite GPS monitoring” and “the

home detention provision entirely” as “serious” and unnecessary “curtailments of [his]

liberty.” J.A. 102–03. The government responded, arguing that Probation’s request was

based on Williams’s “criminal history, the instability of his community resources and his

unknown level of progress,” J.A. 106 (internal quotation marks omitted), all of which, it

argued, counseled against any “artificial deadline” for the release terms Probation had

requested, J.A. 107.

* One of Probation’s requests – to which Williams did not object before the district court and which he does not challenge on appeal – clarified that Williams was to reside in a residential reentry center for the six months immediately after his discharge from commitment.

4 In April 2020, the district court granted Probation’s requests. It explained that,

despite its prior approval of the consent order, Williams’s “criminal history and

background [we]re nevertheless import[ant] considerations in fashioning appropriate

release conditions.” J.A. 113. Because Probation sought these changes to “monitor and

supervise [Williams] . . . effectively,” the district court found them “reasonable” for the

reasons Probation had given and modified the consent order as requested. J.A. 113–14.

Williams timely appealed the district court’s decision.

II.

On appeal, Williams’s first and primary argument is that the district court’s

imposition of indefinite home detention and GPS monitoring was improper because those

conditions were not part of a “prescribed regimen of medical, psychiatric, or psychological

care or treatment,” as he claims § 4248 requires. See

(e)(2) (providing

for discharge from commitment upon a finding that a person “will not be sexually

dangerous to others if released under a prescribed regimen of medical, psychiatric, or

psychological care or treatment”). As a result, Williams argues, the district court lacked

statutory authority to impose those conditions on his discharge. But Williams did not make

this argument to the district court. And his litigation conduct before the district court

conflicts with this new argument as he has presented it to us. Accordingly, we reject this

argument as waived.

“[I]ssues raised for the first time on appeal are generally not considered absent

exceptional circumstances.” United States v. Savage,

(4th Cir. 2013)

5 (internal quotation marks omitted). We have recently applied this principle to similar facts,

where an appellant argued, also under § 4248, that the district court erred in “failing to

explain ‘why it imposed’ the conditions it did and ‘how they are part of a prescribed

regimen’ of care or treatment.” United States v. Shea,

(4th Cir. 2021).

There, “Shea never argued . . . to the district court that the conditions – in part or in whole

– were not appropriate aspects of a prescribed regimen.”

And “[m]ore remarkably,

during the proceedings before the district court, Shea actually proposed imposition of the

conditions” at issue as an alternative argument.

As a result, we held, Shea had waived

his challenge to the conditions the district court had imposed.

.

So too here. Before the district court, Williams did not argue that § 4248 precluded

terms of release beyond a “prescribed regimen of medical, psychiatric, or psychological

care or treatment.” And that is no surprise, given that the original, jointly proposed consent

order under which Williams was discharged itself included multiple conditions with no

obvious connection to a regimen of “care or treatment.” See, e.g., J.A. 67, 90 (requiring

compliance with the Southern District of Texas’s “standard conditions of supervision,

[and] any other conditions adopted by Probation”); id. at 71, 94 (imposing a nightly

curfew); id. at 72, 95 (requiring Williams to submit a driving log and detailed financial

information to Probation). Indeed, the original consent order included the very term of

indefinite GPS monitoring that Williams now contends is outside the district court’s

authority. See J.A. 71, 94 (requiring GPS monitoring “for at least six (6) months”

(emphasis added)).

6 Williams’s waiver persisted even through his opposition to the modifications now

at issue: There, Williams proposed, as an alternative to rejecting Probation’s request

altogether, the imposition of GPS monitoring for 90 days – a condition, like those cited

above, that his appellate theory would likely preclude as beyond a prescribed treatment

regimen. In sum, having secured release by persuading the government and district court

that the terms of the consent order would protect the public, Williams cannot now upend

that agreement to avoid modifications that the order expressly permits – much less with an

argument that he failed to make to the district court. “If this is not invited error, . . . it

certainly constitutes a waiver.” Shea,

. Accordingly, we reject, as waived,

Williams’s argument that the district court lacked authority to impose the challenged

conditions.

Williams also briefly argues that even if the district court had authority to impose

the modified GPS and home-confinement conditions, it abused its discretion in doing so

given Williams’s advanced age, health conditions, and other factors. We disagree. The

consent order expressly permits modifications, consistent with the governing statute. See

(e) (allowing modifications to “regimen of medical, psychiatric, or

psychological care or treatment”). And the district court explained why it viewed the

modifications at issue to be appropriate. Williams contends that, in citing his “criminal

history and background,” J.A. 113, the district court improperly relied on “speculation and

decades-old conduct,” Appellant’s Br. at 19. But as we have explained, “[w]hen the

question is whether an inmate . . . will have serious difficulty refraining from re-offending

if released, consideration of the nature of his prior crimes provides a critical part of the

7 answer.” United States v. Wooden,

(4th Cir. 2002). Williams has not

shown that any of the other factors he now emphasizes – none of which he raised before

the district court – must outweigh that “critical” consideration or others cited by the district

court. As a result, the district court did not abuse its discretion in modifying the consent

order as it did.

III.

For the foregoing reasons, we affirm the decision of the district court.

AFFIRMED

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