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The Court notes that the arguments in Defendant’s motion are aimed primarily at the

legality of his sentence, which is not a proper consideration under § 3583(e) for modifying or

terminating a condition of supervised release. Other procedures, such as direct appeal under 18

U.S.C. § 3742 or a collateral attack under 28 U.S.C. § 2255, are available to challenge the

legality of a condition of supervised release. The Court does not interpret Defendant’s motion as

a motion to vacate under § 2255, because the period of limitation to bring such a motion has run. 

See 28 U.S.C. § 2255(f).

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

UNITED STATES OF AMERICA,

v. CASE NO. 1:95-cr-01007-MP

GARY FLOWERS,

Defendant.

___________________________/

O R D E R 

This matter is before the Court on Doc. 321, “Motion to Protest Conditions of Supervised

Release and Violations of Constitutional Law,” filed by Defendant Gary Flowers. The Court

interprets the motion as a motion to modify the conditions of Defendant’s supervised release

pursuant to 18 U.S.C. § 3583(e).1 

Defendant was convicted of possession with intent to distribute crack cocaine. On

September 15, 1995, Defendant was sentenced to 180 months in the Bureau of Prisons–later

reduced to 90 months–followed by five years of supervised release. See Doc. 234. Defendant

was later arrested for failing to complete a mental health counseling program, which was a

special condition of his supervised release. Id. On October 23, 2001, the Court entered an order,

Doc. 245, postponing disposition of Defendant’s case for violation of a condition of his 

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Case No: 1:95-cr-01007-MP

supervised release but imposing the following additional condition of his supervised release:

“The defendant shall participate in a mental health program

specializing in a sexual offender treatment program, including

submitting to polygraph testing . . . ."

Defendant was again arrested for violation of a condition of his supervised release in

January of 2002. Docs. 259 and 264. On September 12, 2002, the petition and order for

issuance of an arrest warrant was amended to include a new law violation of dealing in stolen

property. Doc. 272. Defendant pled guilty to failing to participate in mental health counseling

and no contest to dealing in stolen property. Id. On October 17, 2002, Defendant was sentenced

to 12 months of imprisonment, followed by 4 years of supervised release. Doc. 276. The

sentence ran consecutively with a state-prison sentence Defendant was serving at that time. The

conditions of Defendant’s supervised release included sex offender counseling, polygraph

testing, a prohibition on unsupervised contact with any child, and a prohibition on residing in

the same home as any child. Id.

Defendant now seeks removal these conditions, arguing that it was improper for the

Court to impose them, because the crime Defendant was convicted of–possessing with intent to

distribute crack cocaine–is not a sex crime. Doc. 321. More to the point, Defendant argues that,

when sentencing Defendant for violating the conditions of his supervised release, the Court

should not have considered his previous state-court conviction for sexually molesting two

children. Id. Defendant claims that he “is being threatened to be reincarcerated if he refuses to

participate in a sex treatment program” and “has continuously been . . . harassed by being asked

about his past state sex crimes and . . . is being threatened to be reincaracerated in the BOP for

not . . . answering questions related to his past state sex crimes.” Id. at 2-3. 

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Case No: 1:95-cr-01007-MP

The Court has consulted with the probation officer in this matter and has again

considered the factors listed in 18 U.S.C. § 3553 to determine whether the imposed sentence is

appropriate. Upon consideration, the Court finds that it is not in the interests of justice to modify

or terminate any conditions of Defendant’s supervised release. Accordingly, it is hereby

ORDERED AND ADJUDGED:

The motion at Doc. 321 is DENIED.

DONE AND ORDERED this 14th day of November, 2008

 s/Maurice M. Paul 

 Maurice M. Paul, Senior District Judge

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