United States v. Kennedy, 499 F.3d 547 (6th Cir. 2007). · Go Syfert
United States v. Kennedy, 499 F.3d 547 (6th Cir. 2007). Cases Citing This Book View Copy Cite
55 citation events (55 in the last 25 years) across 11 distinct courts.
Treatment trajectory · 2007 → 2026 · click a year to view as-of
2007 2016 2026
Cited for
At page 553 Analyzing congressional intent for lifetime sex offender supervision14 citing cases“congress insists that lifetime supervision be available to courts in sentencing sexual offenders.”2 citing courts quote it · 12 listed here
  • United States v. Moreno Jackson, II, 173 F.4th 282 (6th Cir. 2026).published
    E.g., Jackson, 995 F.3d at 484; United States v. Sherrill, 972 F.3d 752, 769 (6th Cir. 2020) (acknowledging that an “explicit agreement constitutes waiver, or the ‘intentional relinquishment or abandonment of a known right’”) (citation omi…
  • United States v. Jason Zabel, 35 F.4th 493 (6th Cir. 2022).published
    United States v. Kennedy, 499 F.3d 547, 553 (6th Cir. 2007).
  • United States v. William Babcock, 753 F.3d 587 (6th Cir. 2014).published 2 cites
    “Congress insists that lifetime supervision be available to courts in sentencing sexual offenders.” United States v. Kennedy, 499 F.3d 547, 553 (6th Cir. 2007).
  • United States v. James Rogers, 531 F. App'x 597 (6th Cir. 2013).unpublished 2 cites
    Congress has authorized lifetime supervision for sexual offenders, including those who violate 18 U.S.C. § 2252 , see 18 U.S.C. *599 § 3583(k); United States v. Kennedy, 499 F.3d 547, 553 (6th Cir.2007).
  • United States v. Young, 502 F. App'x 726 (10th Cir. 2012).unpublished
    See United States v. Daniels, 541 F.3d 915, 923 (9th Cir.2008) (upholding lifetime of supervision for possession of child pornography in part because the policy statement accompanying U.S.S.G. § 5Dl’.2(b)(2) “reflects the judgment of Congr…
  • United States v. Thomas Maxwell, Jr., 483 F. App'x 233 (6th Cir. 2012).unpublished
    As discussed above, the district court in this case did disclose its rationale for sentencing Maxwell to a lifetime of supervision, thereby allowing us to "review the reasonableness of the sentence imposed.” Id. (citing United States v. Ke…
  • United States v. Inman, 666 F.3d 1001 (6th Cir. 2012).published 2 cites
    United States v. Kennedy, 499 F.3d 547, 549, 553 (6th Cir.2007).
  • United States v. McGlothlin, 391 F. App'x 542 (7th Cir. 2010).unpublished 2 cites
    And with respect to lifetime supervision, 18 U.S.C. § 3583 (k) authorizes a term of supervised release of five years to life for a defendant convicted of producing child pornography, and the sentencing guidelines recommend that district co…
  • United States v. Dana Richardson, 349 F. App'x 38 (6th Cir. 2009).unpublished
    “Congress insists that lifetime supervision be available to courts in sentencing sexual offenders: ... 18 U.S.C. § 8583 (k) expressly authorize[s] the court to subject [Richardson] to a life term of supervised release because [his] crime c…
  • United States v. Rochon, 318 F. App'x 395 (6th Cir. 2009).unpublished 2 cites
    The district court had statutory authority to impose a life term of supervised release pursuant to 18 U.S.C. § 3583 (k), which states that “the authorized term of supervised release for- any offense under *399 ... section 2252 ... is any t…
Show 2 more citing cases
  • United States v. Theodore Harmon, 593 F. App'x 455 (6th Cir. 2014).unpublished
    (Congress insists that lifetime supervision be available to courts in sentencing sexual offenders” in light of concerns regarding the inadequacy of more limited supervision)
  • United States v. Jason Florence, 163 F.4th 1017 (6th Cir. 2026).published 2 cites
    (stating that Congress has “insist[ed] that lifetime supervision be available to courts in sentencing sexual offenders)
At page 552 Limiting inferences from defendant's silence at sentencing10 citing casesupholding a sentencing court’s negative inference as to future dangerousness drawn from a defendant’s refusal to participate in a court-ordered psychosexual examination3 citing courts put it this way · 9 listed here
  • United States v. Jeremy Stout, 686 F. App'x 334 (6th Cir. 2017).unpublished
    But Stout has waived his right to challenge the restitution amount, given his counsel’s statements during the sentencing hearing that Stout would “be fine with” a $2,000 award and that such an award “is agreeable.” See United States v. Pri…
  • United States v. Cabrera, 811 F.3d 801 (6th Cir. 2016).published
    “The Mitchell majority ... explicitly limited its holding regarding inferences drawn from a defendant’s silence to facts about the substantive offense and did not address other inferences that may be drawn from a defendant’s silence.... ”…
  • State v. Ronald G. Bird (Idaho Ct. App. 2015).unpublished
    (upholding a sentencing court’s negative inference as to future dangerousness drawn from a defendant’s refusal to participate in a court-ordered psychosexual examination)
  • United States v. Stephen Graham-Wright, 715 F.3d 598 (6th Cir. 2013).published 2 cites
    All of these limitations on the application of Estelle to this case also respect United States v. Kennedy, 499 F.3d 547, 552 (6th Cir. 2007).
  • United States v. Alvia Williams, 520 F. App'x 420 (6th Cir. 2013).unpublished
    And this court has previously noted that Mitchell “does not limit the district court’s ability to consider a wide variety of ‘information concerning the background, character, and conduct’ of the defendant in determining an appropriate sen…
  • Brian Miller v. Blaine Lafler, 505 F. App'x 452 (6th Cir. 2012).unpublished
    In rejecting this argument, the panel highlighted the narrowness of Mitchell , stating that the defendant’s case “implicated Justice Scalia’s ‘clutter swept under the rug,’ as the district court plainly considered [the defendant’s] refusal…
  • United States v. Saani, 650 F.3d 761 (D.C. Cir. 2011).published
    See Mitchell, 526 U.S. at 325-30 , 119 S.Ct. 1307 (privilege against self-incrimination extends through sentencing *771 phase of criminal trial; “defendant [is often] less concerned with the proof of her guilt or innocence than with the se…
  • State v. Marcos Apollo Jimenez, No. 42098 (Idaho Ct. App. Dec. 4, 2015).published 2 cites
    (upholding a sentencing court’s negative inference as to future dangerousness drawn from a defendant’s refusal to participate in a court-ordered psychosexual examination)
  • State of Tennessee v. Keiresha Majors, No. M2023-01182-CCA-R3-CD (Tenn. Crim. App. Jan. 3, 2025).published
    (concluding that Mitchell “does not limit the district court’s ability to consider a wide variety of information concerning the background, character, and conduct of the defendant in determining an appropriate sentence.)
At page 551 Considering defendant's refusal in sentencing discretion5 citing casesconcluding that it was within the court’s discretion to consider the defendant’s refusal to take a psychosexual examination when selecting a sentence1 citing court put it this way
  • State of Iowa v. Kenneth Ray Washington III, 832 N.W.2d 650 (Iowa 2013).published
    For example, in United States v. Kennedy, the Sixth Circuit held Mitchell permits the district court applying federal sentencing guidelines to consider the defendant’s refusal to participate in a court-ordered psycho-sexual evaluation and…
  • State of Tennessee v. Mustapha Boutchiche, No. E2007-00473-CCA-R3-CD (Tenn. Crim. App. Jan. 12, 2009).published
    Citing United States v. Kennedy, 499 F.3d 547, 551-52 (6th Cir. 2007), and Dzul v. State, 56 P.3d 875, 880-81 (Nev. 2002), the State notes that other jurisdictions have concluded that a defendant’s Fifth Amendment right against self- incri…
  • United States v. Beiermann, 584 F. Supp. 2d 1167 (N.D. Iowa 2008).published
    The prosecution does cite United States v. Kennedy, 499 F.3d 547, 551-52 (6th Cir.2007), as recognizing the court's authority to order an expert study of the defendant, pursuant to § 3552, for purposes of sentencing, but the prosecution ac…
  • United States v. McElheney, 524 F. Supp. 2d 983 (E.D. Tenn. 2007).published
    United States v. Kennedy, 499 F.3d 547, 551 (6th Cir.2007). 9 .
  • State of Tennessee v. Jose Gonzalez Bonilla, No. M2019-01193-CCA-R3-CD (Tenn. Crim. App. July 7, 2020).published
    (concluding that it was within the court’s discretion to consider the defendant’s refusal to take a psychosexual examination when selecting a sentence)
At page 549 cited at this page1 citing case
  • United States v. Inman, 666 F.3d 1001 (6th Cir. 2012).published 2 cites
    United States v. Kennedy, 499 F.3d 547, 549, 553 (6th Cir.2007).
Other citing cases1 with no pin cite or quoted language on record
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Ritchie G. KENNEDY, Defendant-Appellant
05-6586.
Court of Appeals for the Sixth Circuit.
Aug 24, 2007.
Published opinion
499 F.3d 547
2007 U.S. App. LEXIS 20265
2007 WL 2403660
ARGUED: Mary Ellen Coleman, Chattanooga, Tennessee, for Appellant. Caryn L. Hebets, United States Attorney, Johnson City, Tennessee, for Appellee. ON BRIEF: Nikki C. Pierce, Federal Defender Services, Greeneville, Tennessee, for Appellant. Guy W. Blackwell, United States Attorney, Greeneville, Tennessee, for Appellee.
Gibbons and Cook, Circuit Judges and Cleland, District Judge.
Cited by 37 opinions  |  Published
Pinpoint authority: bottom 68%
Citer courts: E.D. Michigan (1)

OPINION

COOK, Circuit Judge.

Ritchie G. Kennedy, who pleaded guilty to distributing child pornography in violation of 18 U.S.C. § 2252A, now appeals his 87-month sentence and life term of supervised release. Kennedy asserts that the district court violated his Fifth Amendment right against self-incrimination by drawing a negative inference from his refusal to complete a psychosexual examination prior to sentencing, and he urges that his life term of supervised release is unreasonable. We affirm.

I

Federal Bureau of Investigation (FBI) agents arrested Kennedy after he emailed an image of child pornography to an undercover agent. Searching Kennedy’s computer, the FBI uncovered seventy-seven images of child pornography in his email account. Kennedy cooperated with the FBI, admitting that he had sent additional images to the undercover agent and had electronically traded images with others.

The district court accepted Kennedy’s guilty plea, but deferred sentencing until the probation officer could prepare a pre-sentence investigation report (PSR). To this end, the probation officer requested that Kennedy undergo a psychosexual evaluation, which consists of an interview, plethysmograph, and polygraph. Kennedy moved the court to reject the request, but the court denied Kennedy’s motion and ordered that he be evaluated. Kennedy moved the court to reconsider, asserting that the examination would violate his Fifth Amendment right against self-incrimination.

The district court again denied Kennedy’s motion, holding that (1) it had authority to order the examination under 18 U.S.C. § 3552(b) and (c), which permit the court to “order a study of the defendant”; and that (2) although Kennedy maintained a Fifth Amendment right against self-incrimination through sentencing under Mitchell v. United States, 526 U.S. 314, 119 S.Ct. 1307, 143 L.Ed.2d 424 (1999), he must assert that right “on an issue by issue basis, [and] not as a blanket claim.” Kennedy filed a Notice of Appeal and had submitted a proof brief when the government asked the district court to revoke Kennedy’s bond and order him incarcerated. The district court, troubled by Kennedy’s adamance in opposing the examination, found that Kennedy posed a danger to the public, revoked his bond, and remanded him to custody. See 18 U.S.C. § 3143(a)(1).

Seeking to avoid a lengthy presentence prison stay, Kennedy voluntarily dismissed his appeal and agreed to be examined. The probation officer contracted with Counseling and Consultation Services (CCS) to conduct the examination. CCS successfully interviewed Kennedy, but soon after starting the plethysmograph portion of testing, CCS’s machine malfunctioned and testing terminated. CCS con[*550] tacted Kennedy’s lawyer, who was unaware that CCS had examined Kennedy in her absence, to inform her that they would have to finish testing at a later date. Kennedy and CCS, however, never completed the psychosexual examination.

At Kennedy’s sentencing hearing, the district court acknowledged that the PSR calculated the appropriate Guidelines-recommended range as 70 to 87 months, and that both parties agreed a sentence within that range would be reasonable. The government did not seek a specific Guidelines sentence, but it did request a life term of supervised release. Kennedy’s counsel pressed for the lowest Guidelines sentence and contested life supervision.

In making its determination, the district court considered Kennedy’s incomplete psychosexual evaluation highly relevant, explaining:

One of the things that bears heavily in terms of any decision I have to make about lifetime supervision is ... Kennedy’s unwillingness to give the court any assurance that he’s not dangerous. He refused to take the polygraph and has fought tooth and nail against having the evaluation that this court ordered, and in fact has apparently managed to obstruct it. What am I to make of that?

Kennedy’s counsel maintained that her client was merely following her advice, and that the local Federal Defender’s Offices had adopted a policy of opposing on Fifth Amendment grounds polygraph testing for defendants not yet sentenced, though later discussion suggested that the offices’ concerns had yet to crystallize into a formal policy. Kennedy was willing to submit to the polygraph and plethysmograph, she said, after sentencing or as part of supervision, but not prior to sentencing.

The district court balked at this position:

One of the factors that I have to consider is the need to impose a sentence that will protect the public from further crimes of the defendant, and that’s where the discussion we’ve had about your refusal to submit to a polygraph and your refusal to submit to initially and to complete the psychosexual evaluation ordered by the court comes into play. By not having the results of those, I can’t properly assess what the risk is that you will further offend. I can’t properly assess what kind of danger you pose to the community.
.... [Q]uite simply, your actions, whether they’re your conscious actions or whether you were following advice of counsel, have deprived me of in this case of having the information I need to make that determination.

And the court took pains to provide a record for appellate review:

So that the record will be clear for the Sixth Circuit ..., I do think that your refusal to submit to a polygraph and your refusal to submit to and complete a psychosexual evaluation are factors that are to be considered by this court in determining not only a reasonable term of imprisonment, but also a reasonable term of supervised release.

The court further stated that it could not “risk not assuming that he is a danger to the public” and, consequently, felt it should order lifetime supervision. At this point, Kennedy’s counsel replied, “I think you can impose the life supervision, and that way ... you will be able to know after the fact ... supervision wise ... what needs to be done to treat him.... [But][p]unishment should be separate from supervision; that’s all I ask.”

The court then inquired into the situation with CC S and the malfunctioning machine, and the parties offered conflicting accounts as to why they did not complete testing. Kennedy’s counsel main[*551] tained that CCS was unwilling to proceed after learning that, as she saw it, she was meant to be present from the outset. The probation officer, in contrast, reported that although CCS was initially unaware that Kennedy’s counsel desired to be present, CCS was willing to go through with testing if the parties agreed. But, as Kennedy’s counsel had already expressed Kennedy’s unwillingness to again submit to the testing, the district court responded, “All right,” and then addressed Kennedy directly about its sentencing determination:

I have considered very carefully the need to protect the public from further crimes committed by you; and ... I feel like that I do not have sufficient information, information that would otherwise be available, on which to base a complete judgment about whether or not the sentence I’m about to impose is necessary to protect the public from further crimes.

The court sentenced Kennedy to 87 months, the highest Guidelines-recommended sentence. Addressing the appropriate term of supervised release, the court again stressed its position for the record, explaining as follows:

So that the record will be clear, ... I am assuming based upon what appears to the court to be your unwillingness to ... participate in appropriate testing, that you are in fact a danger, which, therefore, requires that I impose a lifetime term of supervised release; so upon release from imprisonment, you shall be placed on supervised release for a term of life.

II

We review a defendant’s sentence for reasonableness, crediting a sentence within the Guidelines range with a presumption of reasonableness. United States v. Williams, 436 F.3d 706 (6th Cir. 2006); Rita v. United States, — U.S. -, 127 S.Ct. 2456, 2462, 168 L.Ed.2d 203 (2007). Reasonableness encompasses both a substantive and a procedural component. United States v. Jones, 445 F.3d 865, 869 (6th Cir.2006); United States v. McBride, 434 F.3d 470, 475 n. 3 (6th Cir.2006). “A sentence may be considered substantively unreasonable when the district court ‘select[s] the sentence arbitrarily, bas[es] the sentence on impermissible factors, fail[s] to consider pertinent [18 U.S.C.] § 3553(a) factors or giv[es] an unreasonable amount of weight to any pertinent factor.’ ” United States v. Collington, 461 F.3d 805, 808 (6th Cir.2006) (quoting United States v. Webb, 403 F.3d 373, 385 (6th Cir.2005)). Procedural reasonableness requires that the sentencing court adequately consider the § 3553(a) factors, including a correctly calculated Guidelines range. See McBride, 434 F.3d at 475-76; see also Rita, 127 S.Ct. at 2468 (“The sentencing judge should set forth enough to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decision-making authority.”).

A. Fifth Amendment Challenge

Kennedy argues that the district court improperly took account of his unwillingness to complete the ordered psy-ehosexual examination. We conclude, however, that it was well within the district court’s discretion to consider Kennedy’s refusal when selecting its sentence. Congress has explicitly authorized sentencing courts to “order a study of the defendant,” including “psychiatric or psychological examination” to determine “the mental condition of the defendant,” 18 U.S.C. § 3552(b) and (c); and has instructed that “[n]o limitation shall be placed” on what information may be considered by the court in making its sentencing deter[*552] mination, id. § 3661. Although Kennedy contends that the district court’s express reliance on his refusal offended his Fifth Amendment rights and did limit the court’s consideration, Mitchell makes clear that it did not.

In Mitchell, the Supreme Court held that (1) in the federal criminal system, a guilty plea does not waive the privilege against self-incrimination at sentencing, and (2) a sentencing court may not draw an adverse inference from a defendant’s silence in determining facts relating to the circumstances and details of the crime. 526 U.S. at 324, 328, 119 S.Ct. 1307. The Mitchell majority, however, explicitly limited its holding regarding inferences drawn from a defendant’s silence to facts about the substantive offense and did not address other inferences that may be drawn from a defendant’s silence: “Whether silence bears upon the determination of a lack of remorse, or upon acceptance of responsibility for purposes of the downward adjustment provided in § 3E1.1 of the United States Sentencing Guidelines (1998), is a separate question. It is not before us, and we express no view on it.” Id. at 330, 119 S.Ct. 1307. Justice Scalia, dissenting for four Justices, underscored Mitchell’s narrowness, observing that

the clutter swept under the rug by limiting the opinion to ‘determining facts of the offense’ is not merely application of today’s opinion to § 3E1.1, but its application to all determinations of acceptance of responsibility, repentance, character, and future dangerousness, in both federal and state prosecutions — that is to say, to what is probably the bulk of what most sentencing is all about.

Id. at 340, 119 S.Ct. 1307 (Scalia, J., dissenting) (second emphasis added).

Kennedy’s case implicates Justice Sca-lia’s “clutter swept under the rug,” as the district court plainly considered Kennedy’s refusal to complete testing in determining his propensity for future dangerousness, rather than in determining facts of the offense. Given the narrowness of its holding, Mitchell simply does not limit the district court’s ability to consider a wide variety of “information concerning the background, character, and conduct” of the defendant in determining an appropriate sentence, 18 U.S.C. § 3661; to “order a study of the defendant,” id. § 3552(b); and, therefore, to consider the defendant’s refusal to cooperate in assessing what sentence is necessary “to protect the public from further crimes of the defendant,” id. § 3553(a)(2)(C). In fact, as Justice Scalia aptly observed, “Few facts available to a sentencing judge ... are more relevant to ‘the likelihood that [a defendant] will transgress no more, the hope that he may respond to rehabilitative efforts to assist with a lawful future career, [and] the degree to which he does or does not deem himself at war with his society’ than a defendant’s willingness to cooperate.” Mitchell, 526 U.S. at 339, 119 S.Ct. 1307 (Scalia, J., dissenting) (quoting Roberts v. United States, 445 U.S. 552, 558, 100 S.Ct. 1358, 63 L.Ed.2d 622 (1980)).

Thus, because the district court’s consideration of Kennedy’s refusal was not improper, because the record demonstrates the court’s candid and thorough consideration of the § 3553(a) factors in determining Kennedy’s sentence, and because Kennedy cannot overcome the presumption of reasonableness credited to within-Guidelines sentences, we do not find Kennedy’s 87-month sentence unreasonable.

B. Lifetime Supervision Challenge

Kennedy separately challenges the district court’s selection of lifetime supervised release. But counsel’s statement to the court during sentencing, in which she[*553] explicitly advised the court that it could appropriately account for the defendant’s potential for future dangerousness by imposing lifetime supervision, puts counsel in the untenable position of having agreed in “open court with a judge’s proposed course of conduct and [now] charging] the court with error in following that course.” United States v. Aparco-Centeno, 280 F.3d 1084, 1088 (6th Cir.2002) (internal quotations omitted). Doing so represents the “intentional relinquishment or abandonment of a known right.” United States v. Olano, 507 U.S. 725, 732-33, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Consequently, Kennedy waived this challenge.

Waiver notwithstanding, this challenge would fail on its merits because we do not consider the district court’s supervised-release decision unreasonable. Congress insists that lifetime supervision be available to courts in sentencing sexual offenders: in this case, 18 U.S.C. § 3583(k) expressly authorized the court to subject Kennedy to a life term of supervised release because Kennedy’s crime constituted a violation of 18 U.S.C. § 2252A. Congress provided this option in response to the

long-standing concerns of Federal judges and prosecutors regarding the inadequacy of the existing supervision periods for sex offenders, particularly for the perpetrators of child sexual abuse crimes, whose criminal conduct may reflect deep-seated aberrant sexual disorders that are not likely to disappear within a few years of release from prison.

H.R.Rep. No. 108-66, at 49-20 (2003) (Conf.Rep.), reprinted in 2003 U.S.C.C.A.N. 683, 684. The Sentencing Guidelines, also, mirror the lifelong supervision provided for in the statute: although the Guidelines range of supervised release is between two and three years for a defendant convicted of a Class C or D felony, as here, see U.S.S.G. § 5D1.2(a)(2), that section contains a clear caveat, providing that for “a sex offense, however, [lifetime] supervised release is recommended,” id. § 5D1.2(c), policy statement. We agree with the Fifth Circuit that, “[r]eading 18 U.S.C. § 3583(k) together with the policy statement in § 5D1.2(c) indicates that the Congress and the Sentencing Commission intended to impose life terms of supervised release on sex offenders.” United States v. Allison, 447 F.3d 402, 405 (5th Cir.2006). In light of these considerations, the district court reasonably subjected Kennedy to lifetime supervised release.

And finally, as with the selection of Kennedy’s prison term, the district court did not err in considering Kennedy’s refusal to complete the psychosexual examination in selecting a term of supervision, and its thorough regard for the § 3553(a) factors demonstrates a reasonable decision.

Ill

For the foregoing reasons, we affirm.