Appeal from the United States District Court for the Western District of Washington Ronald B. Leighton, District Judge, Presiding D.C. No. CR-05-05247-RBL.
The opinion of the court was delivered by: O'scannlain, Circuit Judge
Argued and Submitted October 21, 2008 -- Seattle, Washington
Before: Diarmuid F. O'Scannlain, Pamela Ann Rymer, and Andrew J. Kleinfeld, Circuit Judges.
Opinion by Judge O'Scannlain; Judge Kleinfeld Writes Separately
We must decide whether a criminal defendant who pled guilty can challenge the inclusion of information in his PreSentence Report that might put him at risk of subsequent civil confinement.
For the better part of 2004, Donald Jay Streich boarded in the homes of several families with small children at Fort Lewis, Washington. In most of these households, the father was serving in Iraq and the mother needed assistance caring for the children. Streich typically received board and some spending money in exchange for his help baby-sitting and housekeeping.
In the last such household, Streich was responsible for a seven year-old boy and a fifteen year-old boy, both the children of a Mrs. T. from a previous marriage. One morning, military police pulled Streich over for speeding. After a background check, the officers discovered that there was an outstanding warrant for Streich's arrest in a nearby county for Failure to Register as a Sex Offender. Streich pled guilty to this crime and was sentenced to eight months in jail.
During Streich's incarceration, Mrs. T.'s husband, Mr. T., who had been deployed in Iraq when Streich began living in the house, returned home. One day, while searching the house for his wife's digital camera, he discovered it in a book bag belonging to Streich. On that camera he found pornographic photographs of his seven year-old stepson. After investigation, federal officers ultimately found evidence that Streich, twenty-three years-old at the time, had had multiple sexual encounters with Mrs. T's fifteen year-old son.
On the basis of the sexual encounters with the fifteen year-old boy only, prosecutors brought an indictment against Streich for one count of sexual abuse of a minor in violation of 18 U.S.C. § 2243. The photographs of the seven year-old boy did not generate separate charges. Streich utlimately pled guilty to the sexual abuse charge pursuant to an agreement including two provisions important to this appeal. First, in a section entitled "Ultimate Sentence," the agreement stated that the "[d]efendant acknowledges that no one has promised or guaranteed what sentence the Court will impose." Indeed neither side promised to make a particular sentencing recommendation. The agreement also included a provision entitled "Non-Prosecution of Additional Offenses," which read in relevant part:
As part of this Plea Agreement, the United States Attorney's Office for the Western District of Washington agrees to not prosecute the Defendant for any additional offenses known to it as of the time of this Agreement that are based upon evidence in its possession at this time, or that arise out of the conduct giving rise to this investigation. In this regard, Defendant recognizes that the United States has agreed not to prosecute all of the criminal charges that the evidence establishes were committed by Defendant solely because of the promises made by Defendant in this Agreement. Defendant acknowledges and agrees, however, that for purposes of preparing the Presentence Report, the United States Attorney's Office will provide the Untied States Probation Officer with evidence of all relevant conduct committed by Defendant.
In anticipation of sentencing, the probation officer prepared an unusually long and detailed presentence report ("PSR"). The PSR included information about an earlier conviction, when Streich was seventeen years-old, on one count of child molestation and one count of attempted child molestation. Streich had been incarcerated by the Washington State Juvenile Rehabilitation Administration and subsequently released on parole. At some point during his incarceration and parole, Streich enrolled in a psychosexual treatment program, in the course of which he volunteered information revealing past, and potentially criminal, conduct, for which he has not been ...