The Denver-based federal appeals court concluded on Friday that a judge imposed sex offender treatment for a defendant’s attempted bank robbery conviction in violation of federal sentencing rules.

James Robert Clark is serving 78 months in prison for an attempted December 2023 bank robbery in Commerce City. He will also serve two years of supervised release after prison. Among other conditions, Clark will need to participate in sex offender evaluation and treatment, stemming from the lone attempted sex offense he committed 21 years earlier.

A three-judge panel of the U.S. Court of Appeals for the 10th Circuit noted Clark had objected to his sentencing materials containing the original allegations against him of “hands-on” sex assault, which he never admitted and never pleaded guilty to. Clark’s trial judge had an obligation to either determine if those allegations were true or to ignore them when handing down the sentence.

Instead, “we agree with Mr. Clark that the district court committed legal error by neither requiring the Government to prove the veracity of the disputed Warrant Affidavit nor ignoring that information altogether as required,” wrote Judge Carolyn B. McHugh in the panel’s Aug. 1 order.

Beginning from Clark’s 2003 offense for attempted sex assault on a child, he pleaded guilty in 2008 and served a prison sentence. On parole in 2011, Clark committed a federal bank robbery offense to which he pleaded guilty. He received another prison sentence plus supervised release, which, among other things, required him to participate in sex offender treatment due to his prior attempted sex assault.

Clark completed his bank robbery sentence in 2022 and violated the conditions of his supervised release by being terminated from the sex offender treatment. His treatment provider had required him to admit to sexual assault because it was relying on the incorrect assumption that Clark pleaded guilty to actually assaulting two children. Clark, who pleaded guilty only to attempted assault, denied the hands-on allegations.

After being removed from the halfway house and becoming homeless, Clark then committed the attempted bank robbery in Commerce City.

Upon pleading guilty, Clark received a presentence report from probation officials that recommended he receive sex offender treatment. The report again relied on the allegations of hands-on assault that were not the basis of his conviction for attempt. He objected to the accuracy of those allegations and their inclusion in the report.

Under the federal sentencing rules, a judge faced with a dispute over a presentence report must issue a ruling or else determine the disputed portions will not affect the sentence.

At a May 2024 hearing, U.S. District Court Judge Daniel D. Domenico indicated at first he might not consider the disputed allegations of hands-on assault in the sentencing.

“I understand that — that the defendant does not admit to any of the allegations,” he said, “but the presentence report is clear that those are simply allegations, not necessarily findings that those facts are true.”

And yet, Domenico decided to impose sex offender treatment “based on what’s been alleged, what may have happened.” He added Clark’s treatment providers are “licensed by the state” and are “not comfortable saying” Clark is low risk.

Public defender Matthew K. Belcher argued that the condition would only doom Clark for failure, as he would enter another round of sex offender treatment, deny the allegations of hands-on assault and again be ejected onto the street.

“He’s not going to admit to it. He wasn’t convicted of it. He never admitted to it. And because of that, he is not a candidate for specific offense treatment,” said Belcher.

Domenico told Clark to “do your best,” and that he may reconsider the requirement to receive treatment in the future if Clark does enter the failure cycle.

Clark appealed that condition of his sentence and also argued his single attempted sex assault conviction was too distant to be the basis of a sentence in 2024.

The 10th Circuit panel did not address whether Clark’s sex offense was too remote to be considered. Instead, it agreed Domenico violated the federal sentencing rule by neglecting to find the hands-on allegations true or ignore them entirely.

“The ‘well-established’ due process right to be sentenced based on accurate information” motivates the rule, wrote McHugh. 

Rather than find the hands-on allegations were accurate, she continued, “the district court seems to have reasoned that because the facts contained in the allegations ‘may have happened,’ the special condition was necessary.”

Domenico had also indicated he wanted to respect the treatment provider’s assessment of Clark’s risk to the community, but that assessment was based on the same disputed allegations that were neither proven nor ignored.

“Because the district court’s reliance on the risk assessments compounded” the error, wrote McHugh, “we cannot conclude that the district court would have imposed the special condition in the absence of that error.”

The panel returned the case to Domenico for him to redo Clark’s sentencing.

The case is United States v. Clark.