In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-1821

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KENNETH ROSS,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 05-CR-24—Charles N. Clevert Jr., Judge.

____________

ARGUED DECEMBER 8, 2006—DECIDED JANUARY 29, 2007

____________

Before BAUER, FLAUM, and KANNE, Circuit Judges.

FLAUM, Circuit Judge. On October 24, 2005, Kenneth

Ross pled guilty to three counts of making false statements to the FBI, in violation of 18 U.S.C. §1001. On

March 13, 2006, the district court sentenced him to 60

months’ imprisonment, followed by three years of supervised release. Considering Ross’s personal background as

well as the facts underlying his conviction, the court

imposed as a special condition of supervised release that

Ross participate in a sex offender mental health assessment and any necessary treatment. Ross appeals the

court’s imposition of sex offender assessment and treatment. We affirm.
2 No. 06-1821

I. BACKGROUND

Between March and September of 2004, Kenneth Ross

made several false statements to FBI Special Agent Jack

Felske. Ross told Felske that he and others had buried a

murdered child’s body in Minnesota. Though he identified an actual missing child and specified a burial location, in reality, he had no knowledge of or involvement

in the child’s disappearance. After admitting that his

prior statements were false, Ross changed his story

and said that he had actually buried the child at a Milwaukee construction site. The FBI’s further investigation

of the claim revealed that Ross had once again lied.

In another FBI interview, Ross claimed that he was

cooperating with the FBI to protect his son from a child

sex ring with which Ross was associated. He said that

members of the sex ring were holding his son somewhere

in Oregon. Ross then showed Felske a photograph of a

young boy and identified him by name. Further investigation established that the individual in the photograph

was not Ross’s son. In fact, Ross had obtained the photograph eight years earlier when he was acquainted with

the boy’s family.

Once Ross pled guilty, the probation office prepared a

pre-sentence investigation report (“PSR”), which detailed

the facts underlying Ross’s conviction as well as his

criminal and personal history. The PSR disclosed that

since 1981, Ross had been convicted of numerous offenses

including forgery, arson, petty theft, writing worthless

checks, operating a vehicle without the owner’s consent,

and theft by fraud. Notably, Ross had never been charged

with or convicted of any sex offense. The PSR also indicated that in 1998, while Ross was incarcerated in a

Wisconsin prison, he received a violation report for engaging in sexual activities with other inmates. A majority

of the inmates with whom Ross had sexual contact were
No. 06-1821 3

victims of sexual abuse or in the sex offender treatment

program. Before exchanging sexual favors with them, Ross

would recruit the inmates to join the Gothic Naturalists,

a religious group of which he claimed to be a “High Priest.”

In 2003, Ross underwent a psychological evaluation after

serving time in prison for an unrelated conviction. The

psychological assessment described Ross as a “man of

above average intelligence with no major affective or

thought disorder.” Although it labeled him a “bright,

highly manipulative individual who is likely to prey on

vulnerable dependent individuals,” the assessment stated

that he was unlikely to “act out in a sexually violent

manner.”

At Ross’s sentencing hearing, the district court required as a special condition of supervised release that

Ross participate in a program of sex offender mental

health treatment. The district court stated:

Let me add hastily, in light of your personal background you’re not to associate or have any type of

conduct with any person under the age of 18 without

adult supervision or approval by your supervising

probation officer. You’re required to participate in a

program of sex offender mental health assessment

and treatment as approved by your supervising probation officer.

Transcript of Sentencing Hearing at 20-21, United States

v. Ross (No. 05-CR-24) (E.D. Wis. 2005). Ross then filed

this appeal.

II. DISCUSSION

As a threshold issue, the parties set forth their analyses

under different standards of review. Normally, we review

a district court’s decision to impose a special condition of
4 No. 06-1821

supervised release for abuse of discretion. See United

States v. Angle, 234 F.3d 326, 346 (7th Cir. 2000); United

States v. Wilson, 154 F.3d 658, 667 (7th Cir. 1998). The

government contends, however, that we should review

for plain error only because Ross did not object to the

special condition of supervised release. See, e.g., United

States v. McKissic, 428 F.3d 719, 721-22 (7th Cir. 2005).

Ross does not claim to have objected below. As result, we

agree with the government that plain error review is

appropriate. A plain error is one that not only is clear and

obvious, but also is of such significance that a failure to

correct it may result in a miscarriage of justice. United

States v. Guy, 174 F.3d 859, 861 (7th Cir. 1999).

Under 18 U.S.C. § 3583(d), a sentencing court has

discretion to impose appropriate conditions of supervised

release, to the extent that such conditions (1) are reasonably related to the factors identified in § 3553(a), including

the nature and circumstances of the offense and the

history and characteristics of the defendant; (2) involve

no greater deprivation of liberty than is reasonably necessary for the purposes set forth in § 3553(a); and (3) are

consistent with the policy statements issued by the

Sentencing Commission. See Angle, 234 F.3d at 346.

Policies emphasized by the Sentencing Commission include deterrence, rehabilitation, and protecting the public.

Ross argues that the district court’s imposition of sex

offender treatment did not meet the criteria necessary

for imposing a special condition of supervised release.

First, he claims, sex offender treatment is not reasonably

related to the offense of lying to the FBI. Ross correctly

observes that nothing in the indictment, plea agreement,

or PSR suggested that any sexual misconduct was part

of the charged offense.

Second, Ross argues, sex offender treatment is not

reasonably related to his personal history. In particular, he
No. 06-1821 5

1 In our estimation, Ross’s 2003 psychological assessment does

not demonstrate that he is unlikely to commit a sexual offense.

Although the report deems Ross unlikely to act out in a sexually

violent manner, not all sexual offenses are violent.

emphasizes the fact that he has never been charged with

or convicted of a sex offense. He also points out that the

psychological assessment performed on him upon his

release from prison in 2003 stated that “it did not appear

the defendant would act out in a sexually violent

manner1

.” Ross continues by attacking the district court’s

reliance on Ross’s 1998 prison violation report, noting

that the sexual conduct at issue did not involve a minor

and was consensual.

Finally, Ross contends, requiring sex offender treatment

in this case will not help protect the public or rehabilitate

Ross. In other words, Ross maintains that he poses no

danger to the public and, thus, does not need to be rehabilitated. Therefore, he concludes, sex offender treatment

is a greater deprivation of liberty than is necessary under

the circumstances.

The government disagrees with Ross’s analysis, arguing

that numerous facts support the imposition of sex offender treatment. First, although Ross’s conviction does

not, on its face, suggest any sexual misconduct, Ross made

a number of statements to the FBI regarding his association with and participation in a child sex ring. Second, it

continues, Ross’s “sexual misconduct” while in prison,

which the government characterizes as “preying on fellow

inmates who were victims of sexual abuse or who were

in the sex offender treatment program,” indicates Ross’s

need for treatment. Finally, it contends that the district

court’s sentence entailed a relatively minor deprivation of

liberty and was reasonably related to the goals of providing treatment to Ross and protecting the public from

further crimes.
6 No. 06-1821

Although we have not had occasion to decide whether

sex offender treatment may be imposed as a special

condition of supervised released where the offense of

conviction is not a sex offense, other circuits have. In

United States v. Carter, 463 F.3d 526, 527 (6th Cir. 2006),

the defendant pled guilty to being a felon in possession

of a firearm. His criminal history included two seventeenyear-old sex offenses, and the district court ordered sex

offender treatment based on those offenses. Id. at 530. The

Sixth Circuit vacated the district court’s imposition of

sex offender treatment, holding that it was not reasonably related to the defendant’s offense of conviction

or criminal history. Id. It noted that sex offender treatment was not reasonably related to being a felon in

possession of a firearm and then determined that the

remoteness of the prior sex crimes destroyed any reasonable relationship between sex offender treatment

and deterrence, public protection, or rehabilitation. Id. at

530-32.

Carter is distinguishable from this case for a few reasons. First, the supervisory condition in Carter was

vacated under an abuse of discretion standard of review.

By contrast, review in this case is for plain error, meaning

that we will reverse only if the district court’s decision

threatens a miscarriage of justice. Presumably, Ross would

only have to undergo sex offender treatment in the event

that the court-ordered evaluation finds such treatment

necessary, and that does not constitute a miscarriage of

justice. Second, the facts underlying the offense of conviction in Carter raised no “red flags,” whereas here

Ross’s lies to the FBI included claims that he buried a

murdered child and was involved with a child sex ring.

Moreover, the troublesome facts underlying Ross’s conviction were by no means remote. Accordingly, Carter is

of no help to Ross.
No. 06-1821 7

2 Because the underlying facts of the conviction are sufficient to

support the imposition of sex offender treatment under plain

error review, we do not consider the probative value, if any, of

Ross’s sexual conduct in prison.

The First Circuit’s holding in United States v. Prochner,

417 F.3d 54 (1st Cir. 2005), supports affirming the special

condition in this case. In Prochner, the defendant was

convicted of credit card fraud, and the record contained

no direct evidence that the defendant engaged in inappropriate conduct with minors. Id. at 63-64. Nevertheless,

his work history showed frequent contact with young

boys, and his journal expressed sexual fantasies about

adolescent males. Id. This was enough, the court reasoned,

under a plain error standard, to affirm the imposition of

sex offender treatment, because the district court “could

reasonably believe that Prochner might pose a threat to

children.” Id. at 64; see also United States v. York, 357

F.3d 14 (1st Cir. 2004) (approving sex offender treatment

for a defendant convicted of mailing threatening letters to

his ex-wife, even though the offense of conviction was not

sexual).

In this case, as in Prochner, the district court considered evidence suggesting that Ross fantasized about

crimes against children.2

 We agree with the First Circuit’s conclusion that evidence of such fantasies is sufficient to warrant sex offender treatment where review

is for plain error. Although the imposition of sex offender treatment in this case is somewhat unusual given

that the offense of conviction, on its face, is not sexual in

nature, the facts underlying the conviction convince

us that the sentence will not result in a miscarriage of justice.
8 No. 06-1821

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s

imposition of a sex offender assessment followed by

treatment, if necessary.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—1-29-07