United States of America v. Gregory Alan Hayes

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4344
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GREGORY ALAN HAYES,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Joseph F. Anderson, Jr., District
Judge. (3:09-cr-00250-JFA-1)
Submitted: November 19, 2010 Decided: December 10, 2010
Before WILKINSON, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Parks N. Small, Federal Public Defender, Aileen P. Clare,
Research and Writing Specialist, Columbia, South Carolina, for
Appellant. William N. Nettles, United States Attorney, Dean A.
Eichelberger, Assistant United States Attorney, Columbia, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Pursuant to a plea agreement, Gregory Alan Hayes
pleaded guilty to accessing child pornography via the Internet
with intent to view it, in violation of 18 U.S.C.A.
§ 2252A(a)(5)(B) (West Supp. 2010). Because of his prior
Pennsylvania convictions for sexual abuse, the district court
sentenced Hayes to the statutory mandatory minimum of 120
months’ imprisonment, see 18 U.S.C. § 2252A(b)(2) (2006),
followed by a lifetime of supervised release.
On appeal, Hayes asserts his guilty plea was not
knowing or voluntary; that his sentence is grossly
disproportionate to his criminal conduct; and that the term of
supervised release and the condition that he submit to
“physiological and psychological testing to determine [his]
sexual orientation and patterns of arousal” are unreasonable.
For the reasons that follow, we reject Hayes’ arguments and
affirm.
I.
Hayes first asserts that his guilty plea was not
knowing and voluntary, under either Federal Rule of Criminal
Procedure 11 or due process, because the Government failed to
specifically identify the prior conviction it intended to rely
upon to support an enhanced sentence. Because Hayes did not
raise this issue in the district court and did not move to

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withdraw his guilty plea on this basis, we will review this
claim for plain error. See United States v. Vonn, 535 U.S. 55,
59 (2002); United States v. Massenburg, 564 F.3d 337, 342 (4th
Cir. 2009) (stating standard of review for unpreserved Rule 11
error). To establish plain error, Hayes “must show: (1) an
error was made; (2) the error is plain; and (3) the error
affects substantial rights.” Massenburg, 564 F.3d at 342-43.
To demonstrate impact on his substantial rights, Hayes must show
that, but for the errors, he would not have pled guilty. See
United States v. Martinez, 277 F.3d 517, 532 (4th Cir. 2002).
Even if such error is found, it is within this court’s
discretion to notice the error, and we will do so “only if the
error seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Massenburg, 564 F.3d at
343 (internal quotation marks omitted).
The standard for determining whether a guilty plea is
constitutionally valid is whether the plea “represents a
voluntary and intelligent choice among the alternative courses
of action open to the defendant.” North Carolina v. Alford, 400
U.S. 25, 31 (1970); see Burket v. Angelone, 208 F.3d 172, 190
(4th Cir. 2000). Such an evaluation requires us to examine “the
totality of the circumstances surrounding the guilty plea.”
Burket, 208 F.3d at 190.

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Hayes cannot demonstrate any error, plain or
otherwise, in the court finding his plea was knowing and
voluntary and accepting his guilty plea. During his Rule 11
plea colloquy, the Government stated for the record its position
that Hayes’ prior convictions for sexual abuse of children
qualified him for the recidivist enhancement set forth in 18
U.S.C.A. § 2252A(b)(2).*
II.
In addition to complying with the
mandates of Rule 11, the district court advised Hayes at least
three times that, if he had a qualifying prior conviction, he
faced a statutory mandatory minimum ten-year sentence. The
court specifically questioned Hayes to ensure he understood the
potential applicability of this provision. Accordingly, we
reject Hayes’ challenge to the knowing and voluntary nature of
his guilty plea.
Hayes next asserts that his 120-month sentence is
grossly disproportionate to his offense conduct and his criminal
history, and thus violative of the Eighth Amendment’s
* Hayes suggests that he should have received notice similar
to that which is mandated by 21 U.S.C. § 851 (2006), but offers
no authority to support this argument. To the contrary,
however, the Eleventh Circuit has specifically rejected this
argument. See United States v. Smith, 459 F.3d 1276, 1298-99
(11th Cir. 2006) (conducting plain error review, court rejected
defendant’s contention that due process demanded additional
notice of the enhanced statutory minimum applicable due to his
prior qualifying offense). We similarly reject this contention.

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prohibition on cruel and unusual punishment. This court has
previously held that “proportionality review is not available
for any sentence less than life imprisonment without the
possibility of parole.” United States v. Ming Hong, 242 F.3d
528, 532 (4th Cir. 2001) (citing United States v. Polk, 905 F.2d
54, 55 (4th Cir. 1990)). As one panel of this court cannot
either explicitly or implicitly overrule this valid circuit
precedent, see United States v. Lighty, 616 F.3d 321, 380 (4th
Cir. 2010), we decline to review the proportionality of Hayes’
sentence.
III.
Finally, Hayes challenges both the duration of his
supervised release term and the special condition imposed upon
him. Hayes first argues the district court failed to explain
its reasons for imposing a lifetime term of supervised release.
We review this issue for plain error because Hayes did not
present any argument for a lesser term in the district court.
See United States v. Lynn, 592 F.3d 572, 576-78 (4th Cir. 2010).
“The length of [Hayes’] term of supervised release is
part of his sentence and is reviewed for reasonableness[,]”
United States v. Daniels, 541 F.3d 915, 921 (9th Cir. 2008),
cert. denied, 129 S. Ct. 1600 (2009), using an abuse-of-
discretion standard of review. See Gall v. United States, 552
U.S. 38, 51 (2007). This review requires appellate

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consideration of both the procedural and substantive
reasonableness of a sentence. Gall, 552 U.S. at 51.
Here, the court elected to impose the statutory
maximum term of lifetime supervised release, which was the term
recommended by the Guidelines. See 18 U.S.C.A.
§ 2252A(a)(5)(A); 18 U.S.C. § 3583(k) (2006); U.S. Sentencing
Guidelines Manual § 5D1.2(b), p.s. (2009). Hayes correctly
identifies, though, that the district court did not explain this
decision, focusing its explanation instead on the reasons for
the 120-month term of imprisonment.
The Supreme Court has clearly mandated sentencing
courts to “adequately explain” their sentences “to allow for
meaningful appellate review and to promote the perception of
fair sentencing.” Gall, 552 U.S. at 50. Even if the district
court committed procedural error in this case, we hold this
error did not affect Hayes’ substantial rights. To reiterate,
defense counsel did not rely on any of the statutory sentencing
factors to advocate for a term of supervised release below the
lifetime term authorized by statute and recommended by the
Guidelines. Accordingly, Hayes cannot demonstrate that the
district court’s failure to explain this decision “had a
prejudicial effect on the sentence imposed.” Lynn, 592 F.3d at
580; see also United States v. Hernandez, 603 F.3d 267, 272-73
(4th Cir. 2010).

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Hayes next contends the supervised release term is
substantively unreasonable. The Supreme Court has authorized
appellate courts to afford a presumption of reasonableness to a
within-Guidelines sentence. Gall, 552 U.S. at 51; see also
United States v. Raby, 575 F.3d 376, 381 (4th Cir. 2009). We do
so here, holding the district court’s decision to impose the
within-Guidelines term of supervised release is presumptively
reasonable, and that the duration of this term is insufficient
to rebut that presumption.
Finally, Hayes argues the requirement that he submit
to sexual testing is substantively unreasonable. As with his
other arguments on appeal, Hayes did not object to this
condition in the district court, limiting the scope of this
court’s review to plain error.
“District courts have broad latitude with regard to
special conditions of supervised release, and we review the
[district] court’s decision to impose a condition of supervised
release for an abuse of discretion.” United States v. Holman,
532 F.3d 284, 288 (4th Cir.) (internal quotation marks omitted),
cert. denied, 129 S. Ct. 522 (2008). Any such special condition
must be “reasonably related” to the factors set forth in 18
U.S.C. § 3583(d)(1) (2006), which include: “the nature and
circumstances of the offenses and the history and
characteristics of the defendant; providing adequate deterrence;

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protecting the public from further crimes; and providing the
defendant with training, medical care, or treatment.” United
States v. Dotson, 324 F.3d 256, 260 (4th Cir. 2003) (internal
quotation marks and citations omitted).
Circuit authority supports the district court’s
requirement that Hayes submit to testing to determine his
arousal patterns. See id. at 261. Further, although Hayes
advances that the district court abused its discretion in
requiring him to submit to testing to determine his sexual
orientation, he cites no authority to support that proposition.
Accordingly, we cannot say the imposition of this condition
constitutes an abuse of discretion.
For these reasons, we affirm the district court’s
judgment. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED

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