United States v. Burroughs

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 26, 2010 Decided July 16, 2010

No. 08-3085

UNITED STATES OF AMERICA,
APPELLEE

v.

AARON BURROUGHS,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 1:07-cr-00126-RJL-1)

Tony Axam Jr., Assistant Federal Public Defender,
argued the cause for appellant. With him on the briefs was A.
J. Kramer, Federal Public Defender.

Mary B. McCord, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief was Roy W. McLeese
III, Assistant U.S. Attorney.

Before: SENTELLE, Chief Judge, BROWN and GRIFFITH,
Circuit Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.
 2
Opinion concurring in part and dissenting in part filed by
Circuit Judge BROWN.

GRIFFITH, Circuit Judge: Aaron Burroughs pled guilty to
several offenses involving the sexual abuse of a minor and
was sentenced to a term of imprisonment followed by
supervised release. On appeal Burroughs challenges his
sentence, including several special conditions of his release.
For the reasons set forth below, we vacate two of the
conditions and remand for further proceedings consistent with
this opinion. Otherwise, we affirm.

I.

S.G. was fourteen years old in the fall of 2005 when she
met Burroughs, then a volunteer assistant football coach at her
high school in Maryland. Not long afterwards, Burroughs
introduced S.G. to prostitution. He became her pimp, taught
her how much she could charge for various sex acts, and
repeatedly took her to an area of the District of Columbia
known for its high levels of prostitution. This misconduct
continued until July 31, 2006, when police discovered S.G.
engaged in prostitution in an automobile in Takoma Park,
Maryland. S.G. directed the police to Burroughs, who was
arrested later that evening.

Burroughs confessed to having vaginal and oral sex with
S.G. and to arranging “dates” between her and several of his
friends. He also led authorities to one of those friends,
Michael Malloy, a U.S. Capitol Police Officer. Burroughs
admitted to twice videotaping himself and Malloy engaging in
sex acts with S.G.

Burroughs pled guilty to one count each of sexual
exploitation of a minor, 18 U.S.C. § 2251(a) (2006);
transportation of a minor to engage in prostitution, id.
 3
§ 2423(a); and first degree child sexual abuse, D.C. CODE
§ 22-3008. His guideline range was 235 to 293 months’
imprisonment. Based on Burroughs’s substantial assistance in
the investigation and prosecution of Malloy and others, the
government authorized the court to grant a downward
departure under § 5K1.1 of the Sentencing Guidelines and to
impose a sentence below the statutory minimum in
accordance with 18 U.S.C. § 3553(e). The government
proposed imprisonment for 180 months, the statutory
minimum for sexual exploitation of a minor. See 18 U.S.C.
§ 2251(e). Burroughs asked for a sentence of no longer than
120 months.

In granting the § 5K1.1 departure and selecting a
sentence of 192 months’ imprisonment and 120 months’
supervised release, the district court explained that Burroughs
deserved a longer sentence than Malloy’s 180 months. See
Sentencing Hr’g Tr. at 30 (“[Y]our sentence has to be greater
than Malloy’s to some degree to reflect the seriousness of
your conduct, especially vis-à-vis his. But in light of your
cooperation, it shouldn’t be much greater.”). The court also
imposed, without explanation, numerous conditions of
supervised release.

On appeal, Burroughs alleges his counsel at sentencing
rendered ineffective assistance and challenges some of the
conditions of his supervised release. We have jurisdiction
under 18 U.S.C. § 3742(a)(1). See United States v.
Hankerson, 496 F.3d 303, 304–05 (3d Cir. 2007) (ineffective
assistance at sentencing); United States v. Love, 593 F.3d 1,
5–6 (D.C. Cir. 2010) (conditions of supervised release).

II.

The Sixth Amendment right to counsel in “all criminal
prosecutions” is the right to the effective assistance of
 4
counsel. See Strickland v. Washington, 466 U.S. 668, 684–86
(1984). To prevail on a claim that he was denied this right, a
defendant must show that his lawyer’s representation was
deficient in a way that caused him prejudice. See id. at 687.
“To establish deficiency, [he] must show his ‘counsel’s
representation fell below an objective standard of
reasonableness.’ To establish prejudice, he ‘must show that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.’” Porter v. McCollum, 130 S. Ct. 447, 452
(2009) (quoting Strickland, 466 U.S. at 688, 694) (citations
omitted).

Because the record will not often “disclose the facts
necessary to decide either prong of the Strickland analysis,” a
claim of ineffective assistance ordinarily cannot be resolved
on direct appeal. Massaro v. United States, 538 U.S. 500, 505
(2003). When a “defendant raises on appeal a colorable and
previously unexplored claim of ineffective assistance,” United
States v. Rashad, 331 F.3d 908, 908 (D.C. Cir. 2003), our
practice has been to remand to the district court to give the
defendant an opportunity to develop the factual basis for his
claim, see United States v. Geraldo, 271 F.3d 1112, 1115–16
(D.C. Cir. 2001). But “[w]e do not reflexively remand.”
United States v. Harris, 491 F.3d 440, 443 (D.C. Cir. 2007).
To raise a colorable claim, the defendant must make “factual
allegations that, if true, would establish a violation of his sixth
amendment right to counsel.” United States v. Poston, 902
F.2d 90, 99 n.9 (D.C. Cir. 1990). Once that threshold is
cleared, we remand for an evidentiary hearing unless the
“record alone conclusively shows that the defendant either is
or is not entitled to relief.” Rashad, 331 F.3d at 909–10
(internal quotation marks omitted).
 5
Burroughs alleges that his lawyers should have had him
evaluated by a mental health expert before he was sentenced.
Although Burroughs could not have afforded the evaluation,
the Criminal Justice Act (CJA) makes funding available for
expert services “necessary for adequate representation” when
the defendant “is financially unable to obtain them.” 18
U.S.C. § 3006A(e)(1). According to Burroughs, his lawyers
“realized” that his “mental health was relevant” to the
sentencing decision and went so far as to suggest he undergo
a mental health evaluation, but they failed to request CJA
funding for one. Reply Br. at 5. If their failure to seek funding
under the CJA “reflected ignorance of the law, rather than a
reasonable strategic decision, . . . then the [attorneys’]
performance must be deemed deficient.” United States v.
Williams, 358 F.3d 956, 964 (D.C. Cir. 2004) (emphasis
omitted).

We assume, without deciding, that Burroughs’s lawyers
erred, but we do not remand because Burroughs has not raised
allegations that, if proven at an evidentiary hearing, would
show prejudice. Burroughs contends that a mental health
evaluation could have led to evidence that could have resulted
in a downward variance from the guideline range in addition
to the downward departure he received under § 5K1.1. But
this argument rests on the assumption that the district court
would have provided funding for an evaluation.

Because “[i]t cannot be true . . . that a defendant always
has a right to a psychiatrist under § 3006A,” United States v.
Chavis, 476 F.2d 1137, 1142 (D.C. Cir. 1973), the CJA
requires a showing of necessity, see, e.g., United States v.
Kennedy, 64 F.3d 1465, 1470 (10th Cir. 1995) (“[T]he
defendant must do more than allege that the services would be
helpful.”). “Necessity is made out where . . . a reasonable
attorney would engage such services for a client having the
 6
independent means to pay for them.” United States v.
Anderson, 39 F.3d 331, 343 (D.C. Cir. 1994) (internal
quotation marks omitted), rev’d on other grounds, 59 F.3d
1323 (D.C. Cir. 1995) (en banc). Burroughs points to four
factors he thinks demonstrate that expert mental health
assistance was necessary in his case: the nature of the offense,
his lack of prior convictions, his post-incarceration
depression, and his request to enter a sex offender treatment
program. See Reply Br. at 4. Setting aside for a moment his
depression, the factors Burroughs invokes are present in the
case of nearly every first-time sex offender seeking a mental
health evaluation. Paid counsel regularly and ably represent
their clients in these circumstances without the aid of expert
psychologists. Clearly these allegations do not suffice to show
the necessity of expert services under the CJA.

About his depression, the Presentence Investigation
Report notes that Burroughs was briefly treated for
“depression and adjustment disorder with depressed mood”
following “a difficult adjustment to incarceration.” PSR ¶ 41.
Burroughs provides no reason to think that his trouble
acclimating to prison indicates that he suffers from other,
underlying mental health issues. Indeed, his initial difficulties
may reflect nothing more than the normal course of
adjustment to life in prison. See Craig Haney, The
Psychological Impact of Incarceration: Implications for
Postprison Adjustment, in PRISONERS ONCE REMOVED 33, 37–
40 (Jeremy Travis & Michelle Waul eds., 2003). Without
more—and Burroughs offers nothing more—his post-
incarceration depression provides no basis for concluding that
a mental health evaluation was necessary for adequate
representation at sentencing. See United States v. Anderson,
547 F.3d 831, 833–34 (7th Cir. 2008).
 7
Should an evidentiary hearing demonstrate the truth of
everything Burroughs alleges, it still would not be reasonably
probable that the district court would have granted him
funding under the CJA. Without “any substantial issue that
requires a determination of facts,” Poston, 902 F.2d at 99 n.9,
a remand is unwarranted. Burroughs’s claim of ineffective
assistance fails because he has not raised a colorable claim of
prejudice under the second prong of Strickland.

III.

A sentencing court has discretion to impose any
condition of supervised release “it considers to be
appropriate” so long as the condition is reasonably related to
factors enumerated in 18 U.S.C. § 3553(a), involves no
greater deprivation of liberty than is reasonably necessary,
and is consistent with the Sentencing Guidelines. 18 U.S.C.
§ 3583(d). Burroughs challenges several conditions of his
release as inconsistent with the relevant § 3553(a) factors.
Before turning to his arguments, we address our standard of
review.

A.

In United States v. Sullivan, we explained that the
standard of review for a challenge to a special condition of
supervised release depends on whether the defendant first
objected in the district court. 451 F.3d 884, 892–95 (D.C. Cir.
2006). When the defendant has done so, we review for abuse
of discretion “how the trial court measured the conditions
imposed against the statutorily enumerated sentencing goals.”
Id. at 895. But when the defendant has failed to raise the issue
in the district court, we ask whether the condition “is so
plainly out of sync with the statutory goals enumerated in
 8
§ 3553(a) as to warrant reversal under a plain error standard
of review.” Id.; accord Love, 593 F.3d at 11, 14.1

Burroughs concedes that his lawyers did not contest in
the district court the conditions he now challenges and that
Sullivan calls for plain error review. He argues, however, that
Sullivan is in tension with our subsequent decision in United
States v. Bras, 483 F.3d 103 (D.C. Cir. 2007). In Bras, we
held that a defendant need not lodge with the district court a
specific objection to the reasonableness of the length of his
prison sentence in order to avoid plain error review on appeal.
See id. at 113. The argument over the length of imprisonment
that ordinarily precedes sentencing is sufficient to preserve
the issue. Requiring another challenge—expressly couched in
terms of “reasonableness”—after the court has pronounced
the sentence would exalt form over substance. Id. Burroughs
argues that the logic of Bras likewise applies to challenges to
supervised release conditions, eliminating the need to
challenge such conditions before the district court. According
to Burroughs, under this reasoning, a condition may be

1
Every circuit agrees that the plain error standard governs when the
defendant fails to make his position on a condition of supervised
release known to the district court. See United States v.
Garrasteguy, 559 F.3d 34, 41, 44 (1st Cir. 2009); United States v.
Simmons, 343 F.3d 72, 80 (2d Cir. 2003); United States v. Warren,
186 F.3d 358, 362 (3d Cir. 1999); United States v. Smathers, 351 F.
App’x 801, 802 (4th Cir. Nov. 13, 2009) (unpublished); United
States v. Balderas, 358 F. App’x 575, 578–81 (5th Cir. Dec. 23,
2009) (unpublished); United States v. Kingsley, 241 F.3d 828, 837–
38 (6th Cir. 2001); United States v. Silvious, 512 F.3d 364, 370 (7th
Cir. 2008); United States v. Alvarez, 478 F.3d 864, 866–68 (8th Cir.
2007); United States v. Rearden, 349 F.3d 608, 618–19 (9th Cir.
2003); United States v. Fabiano, 169 F.3d 1299, 1307 (10th Cir.
1999); United States v. Moran, 573 F.3d 1132, 1137, 1139–40
(11th Cir. 2009).
 9
challenged in the first instance on appeal, where it will be
reviewed for abuse of discretion rather than plain error.

We think Burroughs misreads Bras and adhere to the
view that “[t]he proper standard of review here is plain error.”
Sullivan, 451 F.3d at 894. When a defendant fails to preserve
a substantive challenge to a special condition of supervised
release under 18 U.S.C. § 3583(d)(1), the court of appeals can
vacate the condition only if it is “plainly out of sync with” the
relevant statutory factors. Id. at 895.

“The very word ‘review’ presupposes that a litigant’s
arguments have been raised and considered in the tribunal of
first instance.” Freytag v. Comm’r, 501 U.S. 868, 895 (1991)
(Scalia, J., concurring in part and concurring in the judgment).
The federal rules require that a party timely inform the trial
court of either “the action the party wishes the court to take,
or the party’s objection to the court’s action and the grounds
for that objection.” FED. R. CRIM. P. 51(b). Errors “not
brought to the court’s attention” are subject to review only for
plain error. FED. R. CRIM. P. 52(b). The Bras court did not
suggest otherwise. The government argued in Bras that the
length of a sentence should be reviewed only for plain error
when the defendant did not object that the sentence imposed
was “unreasonable.” We disagreed. “Reasonableness,” we
explained, “is the standard of appellate review, not an
objection that must be raised upon the pronouncement of a
sentence.” Bras, 483 F.3d at 113 (citation omitted). The
defendant need not “label his sentence ‘unreasonable’ before
the sentencing hearing adjourn[s]” “[s]ince the district court
will already have heard argument and allocution from the
parties and weighed the relevant § 3553(a) factors before
pronouncing sentence.” Id. (quoting United States v. Castro-
Juarez, 425 F.3d 430, 434 (7th Cir. 2005)) (emphasis added).
In other words, objecting to the “reasonableness” of the
 10
sentence is unnecessary because a defendant’s arguments that
the § 3553(a) factors favor a shorter sentence have already
notified the court of the grounds for “the action the party
wishes the court to take.” FED. R. CRIM. P. 51(b). The rules
require no more to avoid plain error review. See United States
v. Rashad, 396 F.3d 398, 401 (D.C. Cir. 2005); United States
v. Morgan, 581 F.2d 933, 939 n.16 (D.C. Cir. 1978); see also
United States v. Bartlett, 567 F.3d 901, 910 (7th Cir. 2009)
(requiring a “reasonableness” objection from a defendant who
has already argued for a lower sentence would be inconsistent
with Rule 51(b)).

United States v. Russell, 600 F.3d 631 (D.C. Cir. 2010),
which we decided after oral argument in this case, is of no
help to Burroughs. In Russell, we reviewed a defendant’s
challenge to the reasonableness of the length of his supervised
release. See id. at 633–36. The defendant was sentenced to a
term of supervised release of thirty years despite having
argued at his sentencing hearing that five years would be
more appropriate. See Reply Br. at 4 n.1, United States v.
Russell, 600 F.3d 631 (D.C. Cir. 2010) (No. 08-3120); see
also Sentencing Hr’g Tr. at 13, United States v. Russell, Crim.
No. 06-176 (Sept. 28, 2006) (“I was going to ask you for a
period of three years supervised release, but if you think that
that would be too short, to impose a period of five years
supervised release, and require counseling when he’s
released.”). Like Bras, however, Russell did not expressly
object to the reasonableness of the district court’s sentencing
determination after it was made. Russell, 600 F.3d at 633. As
to the standard of review, “we [found] the reasoning in Bras
to be persuasive,” id. at 634, and held “that we review claims
of substantive reasonableness for abuse of discretion,
regardless of whether an objection on those terms was made,”
id. at 633 (emphasis added).
 11
Under Bras and Russell, a defendant’s argument to the
district court regarding the length of his term of imprisonment
or supervised release preserves for appeal the issue of whether
the sentence imposed was unreasonable. He need not also take
exception to the reasonableness of the sentence once it is
pronounced. Even if the same principle applied to conditions
of supervised release, the defendant in this case did not
oppose the challenged conditions at any point—not in his
sentencing memorandum, not in allocution before the
sentence was pronounced, and not after it was imposed.
Where, as here, the defendant altogether fails to inform the
court that he opposes a condition of supervised release, Bras
and Russell are inapposite. Instead, Sullivan controls, and the
“appellate court reviews for plain error under [Rule 52(b)].”
Sullivan, 451 F.3d at 894 (internal quotation marks and
citation omitted).

In applying Rule 52(b), we will vacate a plainly
erroneous condition of supervised release only if it impinges
upon the defendant’s “substantial rights,” FED. R. CRIM. P.
52(b), in a way that “‘seriously affect[s] the fairness, integrity
or public reputation of judicial proceedings,’” United States v.
Olano, 507 U.S. 725, 736 (1993) (quoting United States v.
Atkinson, 297 U.S. 157, 160 (1936)).

B.

Burroughs challenges three conditions that restrict his
computer use. These conditions require him (1) to submit to
Probation Office monitoring of his computer use and to pay
for the monitoring technology himself; (2) to keep a daily log
of any Internet activity unrelated to his employment; and
(3) to inform potential employers of any computer-related
conditions of his supervised release.2 We consider the
2
The challenged conditions read:
 12
monitoring and log-keeping conditions together and vacate
both, but we affirm the employer-notification requirement.

Burroughs did not use a computer to facilitate his crimes.
We are told that he owns a computer, that the government
searched it after his arrest, and that the search turned up
nothing illegal. The government did not recommend that the
court impose any supervised release conditions related to
computers. See Gov’t Memorandum in Aid of Sentencing at
17. The Probation Office did, but neither the Probation Office
nor the district court explained its reasons for restricting
Burroughs’s computer access. Not knowing the court’s
reasons for imposing these conditions, finding the
government’s reasons unsupported by the record, and unable
to identify any ourselves, we vacate the conditions as plainly
out of sync with the relevant factors and remand for further
proceedings.

Section 3583(d)(1) of Title 18 requires that discretionary
conditions of supervised release be “reasonably related to the
factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C),
and (a)(2)(D).” Those factors are: “the nature and
circumstances of the offense and the history and

Computer Search – . . . . Defendant shall allow installation of
any hardware or software systems to monitor his computer use
and shall pay for the cost of such monitoring equipment.

Computer Restriction – Defendant shall maintain a daily log
of all addresses accessed by way of any computer, other than
those authorized for employment, and he shall make the log
available to the Probation Office for review. Defendant shall
consent to third party disclosure to any employer or potential
employer, concerning any computer related restrictions that
are imposed upon defendant.

Judgment at 4.
 13
characteristics of the defendant,” 18 U.S.C. § 3553(a)(1); the
need “to afford adequate deterrence to criminal conduct,” id.
§ 3553(a)(2)(B); the need “to protect the public from further
crimes of the defendant,” id. § 3553(a)(2)(C); and the need
“to provide the defendant with needed educational or
vocational training, medical care, or other correctional
treatment in the most effective manner,” id. § 3553(a)(2)(D).

The government does not even attempt to argue that the
computer restrictions are reasonably related to two of the
statutory factors: the history and characteristics of the
defendant and the need to provide general deterrence to
criminal conduct. We can nevertheless affirm, the government
contends, because the restrictions are consistent with the
nature and circumstances of the offense, the need to protect
the public from further crimes of the defendant, and the need
to provide the defendant with needed educational and
vocational training, medical care, or other correctional
treatment.

We disagree that the computer restrictions are reasonably
related to “the nature and circumstances of the offense.” Id.
§ 3553(a)(1). The government argues that these restrictions
are related to Burroughs’s conduct because the Internet can be
used to arrange sexual encounters with minors and to
advertise minors for prostitution. Of course it can. But from
drug dealers to Ponzi schemers and smugglers to stalkers—
nearly any criminal can use the Internet to facilitate illegal
conduct. That an offense is sometimes committed with the
help of a computer does not mean that the district court can
restrict the Internet access of anyone convicted of that
offense.

If Internet restrictions were appropriate for every
defendant convicted of a sex offense against a minor, we
 14
think the Sentencing Guidelines would say so. See United
States v. Perazza-Mercado, 553 F.3d 65, 77 (1st Cir. 2009)
(“The Sentencing Commission creates such generally
applicable conditions of supervised release, not appellate
judges.”). Section 5D1.3(d)(7) of the Guidelines recommends
conditions of supervised release for every defendant
convicted of a sex offense against a minor. U.S. SENTENCING
GUIDELINES MANUAL § 5D1.3(d)(7) (2007); see also id.
§ 5D1.2 cmt. n.1. Conditions “limiting the use of a computer
or an interactive computer service” make the list, but only “in
cases in which the defendant used such items.” Id.
§ 5D1.3(d)(7)(B). By implication, restrictions on computer or
Internet access are not categorically appropriate in cases
where the defendant did not use them to facilitate his crime.
The government points to no facts making the computer
restrictions reasonably related to the nature and circumstances
of Burroughs’s offense that would not also make computer
restrictions appropriate for every defendant convicted of the
same crimes. We cannot affirm the conditions on this ground.
Cf. United States v. Peterson, 248 F.3d 79, 83 (2d Cir. 2001)
(holding that a restriction on computer and Internet use was
not “reasonably necessary” to protect the public or the family
of a defendant convicted of incest or to serve any other
§ 3553(a)(2) goal when the offense lacked “any connection to
computers or to the Internet”).

Nor can it be said that restricting Burroughs’s computer
access satisfies a need “to protect the public from further
crimes of the defendant.” 18 U.S.C. § 3553(a)(2)(C). This
sentencing factor turns on “the likelihood that [the defendant]
will . . . commit crimes in the future.” United States v. Mason,
966 F.2d 1488, 1496 (D.C. Cir. 1992); see, e.g., United States
v. Gardellini, 545 F.3d 1089, 1095 (D.C. Cir. 2008) (noting
that the district court’s finding that the defendant “posed no
risk of recidivism” was “directly relevant” to the need to
 15
protect the public and other § 3553(a) factors). The
government suggests that because Burroughs’s contact with
minors will be restricted after his release from prison, “the
Internet is a likely avenue for obtaining the access he will not
otherwise have” should he “choose to resume the behavior
that resulted in his convictions.” Appellee’s Br. at 30. This is
nothing but post hoc conjecture. The district court did not find
Burroughs, a first-time offender, likely to recidivate let alone
use a computer in doing so. Indeed, in explaining its decision
to sentence Burroughs to 192 months’ imprisonment, the
court mentioned nearly every § 3553(a) factor but the need to
protect the public. See Sentencing Hr’g Tr. at 28–30. Because
the court did not find Burroughs likely to return to his illegal
course of conduct and did not explain why it deemed the
computer restrictions appropriate, we have no reason to think
the court shared the government’s speculation.

The government finally suggests that the computer
restrictions will provide Burroughs with needed correctional
treatment under 18 U.S.C. § 3553(a)(2)(D). Making passing
reference to this factor, the government refers us to United
States v. Johnson, which states that “[r]estrictions on Internet
use may serve several sentencing objectives, chiefly therapy
and rehabilitation, as well as the welfare of the community
(by keeping an offender away from an instrumentality of his
offenses).” 446 F.3d 272, 281 (2d Cir. 2006). In affirming an
Internet ban for a defendant who repeatedly used the Internet
to lure minors for sex, see id. at 274, the Johnson court
explained that an Internet restriction would “serve[] as an
external control to predatory Internet behavior, standing in for
[his] deficient internal controls,” id. at 281–82. But
Burroughs, unlike Johnson, did not use the Internet as an
instrument of his offense. There is no reason to think that
restricting his computer use would have any therapeutic
value.
 16
Having determined that the Internet monitoring and log-
keeping conditions are not reasonably related to the statutory
factors, we ask whether the district court’s error was plain.
The government first argues that the absence of controlling
precedent from this court or the Supreme Court prevents us
from answering ‘yes.’ The lack of case law squarely on point
does “militate against” finding plain error, United States v.
Blackwell, 694 F.2d 1325, 1342 (D.C. Cir. 1982), but it is not
dispositive, In re Sealed Case, 573 F.3d 844, 851–52 (D.C.
Cir. 2009). It is sufficient that the challenged conditions of
supervised release are “plainly out of sync” with the factors
listed in § 3583(d)(1). Sullivan, 451 F.3d at 895; see also
Olano, 507 U.S. at 734 (“‘Plain’ is synonymous with ‘clear’
or, equivalently, ‘obvious.’”).

We agree with the circuits that have held similar
computer restrictions to be plainly erroneous in closely
analogous circumstances. Like Burroughs, the defendant in
United States v. Smathers was convicted of sexual
exploitation of a minor; like Burroughs, he did not use a
computer in committing the offense of conviction; and like
Burroughs, he had no prior history of illicit computer use. 351
F. App’x 801, 802 (4th Cir. Nov. 13, 2009) (unpublished).
The Fourth Circuit held that the condition was plainly
inconsistent with the statutory factors and inconsistent with
§ 5D1.3 of the Guidelines. Id. And in United States v.
Barsumyan, the Ninth Circuit vacated a computer restriction
imposed on a defendant twice convicted of credit card frauds
in which he did not use a computer, holding that the
sentencing court had plainly erred. 517 F.3d 1154, 1160–62
(9th Cir. 2008). In some cases involving computer restrictions
imposed on a defendant with no history of illegal computer
use, courts have remanded for clarification, United States v.
Stanfield, 360 F.3d 1346, 1354 (D.C. Cir. 2004), or for the
district court to consider less burdensome alternatives,
 17
Perazza-Mercado, 553 F.3d at 73–74. But the government
does not direct us to a single case in which a court of appeals
has affirmed the imposition of such a condition, and its
inability to articulate a reasonable justification for the
condition that finds support in the record leads us to conclude
the district court plainly erred.

Contrary to the government’s contention, Stanfield does
not support the district court’s decision. In Stanfield, we
remanded for clarification of an Internet restriction imposed
on a defendant who had a “history of identity theft” but “had
not used the internet in the commission of those crimes.” 360
F.3d at 1349. The court expressly declined “to address the
validity of the internet restriction [under § 3583 and the First
Amendment] in the absence of a clearer understanding of its
scope.” Id. at 1353. We decline to read into that act of judicial
restraint an implicit conclusion that the condition was
reasonable under the statutory factors. Cf. Sullivan, 451 F.3d
at 895. In any case, even the government’s reading of
Stanfield suggests nothing more than that in some cases
restrictions on a defendant’s Internet access may be
reasonably related to some of the § 3583(d)(1) factors even
when he does not use a computer to commit his crime. We do
not foreclose that possibility. On remand, the district court
may reconsider whether the vacated conditions are
appropriate in light of the statutory factors. But when the
sentencing court does not explain why it imposes a special
condition of supervised release, the government is unable to
offer a reasonable justification supported by the record, and
this court cannot discern the basis for the condition, we
cannot affirm even under the plain-error standard.

We turn next to whether the district court’s error
impacted the defendant’s “substantial rights.” FED. R. CRIM.
P. 52(b); see also United States v. Marcus, 560 U.S. ___
 18
(2010). A sentencing error affects substantial rights when
there is a reasonable likelihood it impacted the sentence. See
United States v. Saro, 24 F.3d 283, 287–88 (D.C. Cir. 1994);
see also id. at 288 (“[T]he burden of persuasion in showing
‘prejudice’ should be somewhat lighter in the sentencing
context [than for errors committed at trial].”). The district
court imposed the challenged conditions without explaining
its reasons, and the record does not allow us to infer what
those reasons might have been. It might be that no
explanation is possible. Although the district court may
ultimately decide on remand that Internet monitoring and log-
keeping conditions are appropriate, it is reasonably likely that
the court will reconsider its previous decision and decline to
impose these conditions a second time. See Perazza-Mercado,
553 F.3d at 78 (“[T]here is a reasonable probability that the
court might not have imposed the prohibition if it had fulfilled
its obligation to explain the basis for the condition or at least
made sure that the record illuminated the basis for the
condition.”).

Our final consideration is whether “the error seriously
affects the fairness, integrity or public reputation of judicial
proceedings.” In re Sealed Case, 573 F.3d at 852. The district
court imposed supervised release conditions that were
inconsistent with the statutory factors and did so without
explanation. A sentencing court’s failure to explain its
reasoning may hinder effective appellate review and
undermine the perceived fairness of sentencing proceedings.
See In re Sealed Case, 527 F.3d 188, 193 (D.C. Cir. 2008). To
avoid those “institutional harm[s],” id., we will exercise our
discretion to correct the error by vacating the conditions
requiring Burroughs to keep a daily log of his Internet activity
and to submit to monitoring of his computer use. If the district
court chooses to impose the same conditions on remand, it
 19
should explain its reasoning and develop the record in support
of its decision.

That leaves the related requirement that Burroughs notify
potential employers of “any computer related restrictions”
imposed as conditions of his supervised release. Judgment at
4. We leave this condition intact. The district court provided
for periodic, unannounced examinations of Burroughs’s
computer—a condition he has not appealed. When the
Probation Office conducts its searches, it will have access not
only to Burroughs’s personal data but to any work-related
information stored on his computer as well. We see no reason
why potential employers should not be made aware of that
fact.

C.

Burroughs also challenges the condition requiring that he
not have direct or indirect contact with children or loiter in
places where children congregate.3 This condition is both
overly broad and impermissibly vague, Burroughs argues, and
would inhibit his reintegration into the community following

3
The condition on contact with children is part of a broader
restriction, which reads in full:

Contact Restriction – Defendant shall have no direct, or
indirect, contact with children, age 18 or younger, and refrain
from loitering in any place where children congregate,
including but not limited to residences, arcades, parks,
playgrounds, and schools. Defendant shall not reside with a
child or children under the age of 18 without the expressed
and written approval of the minor’s legal guardian and the
written permission of the Court.

Judgment at 4 (emphasis added). Burroughs contests only the
italicized portion of the condition.
 20
imprisonment. We affirm the imposition of this condition but
do so only after clarifying its scope.

The government tells us that associational restrictions
like this one do not prohibit incidental or unintentional
contact with minors. Appellee’s Br. at 36–38. That
observation finds support in our survey of the case law. See,
e.g., Johnson, 446 F.3d at 281 (“Generally, supervised release
provisions are read to exclude inadvertent violations.”);
United States v. Loy, 237 F.3d 251, 269 (3d Cir. 2001) (“[I]t
is well established that associational conditions do not extend
to . . . chance meetings.” (citing Arciniega v. Freeman, 404
U.S. 4, 4 (1971) (per curiam))). Read against the backdrop of
this assumption about associational conditions, the restriction
on “indirect” contact was clearly meant to reach contact by
means of a computer, phone, other device, or a third-party
intermediary—not inadvertent or chance contact. Cf. Johnson,
446 F.3d at 280–81; United States v. Paul, 274 F.3d 155, 166
(5th Cir. 2001). Burroughs says the condition would be
unobjectionable if it did not encompass unintentional or
incidental encounters. Reply Br. at 14 n.2. Construing the
condition in a manner acceptable to both parties, we affirm
the imposition of the restriction on contact with children.

D.

We conclude by briefly addressing the contention that
Burroughs’s lawyers were ineffective in failing to object to
the challenged conditions of supervised release. A reasonable
attorney would have objected, according to Burroughs, and
thereby avoided plain error review on appeal. Our resolution
of the appeal moots this argument with respect to all the
challenged conditions except the employer-notification
requirement. As to that condition, counsel was not deficient in
failing to object. “The Sixth Amendment . . . does not pledge
 21
perfection,” United States v. Hurt, 527 F.3d 1347, 1357 (D.C.
Cir. 2008), and any defect in the condition is not so obvious
that counsel’s silence signals incompetence, see id.

IV.

We vacate the supervised release conditions that require
the defendant to “allow installation of any hardware or
software systems to monitor his computer use and . . . pay for
the cost of such monitoring equipment” and to “maintain a
daily log of all addresses accessed by way of any computer,
other than those authorized for employment, and . . . make the
log available to the Probation Office for review,” and remand
for further proceedings consistent with this opinion. In all
other respects, we affirm.

So ordered.
 BROWN, Circuit Judge, concurring in part and dissenting
in part: I agree appellant has not presented any colorable
claim that his counsel at trial or at sentencing was
unconstitutionally ineffective. I also agree unpreserved
challenges to his supervised release conditions should be
reviewed under a plain error standard. I disagree, however,
with the result of this decision and would affirm the district
court’s sentence in all respects. My disagreement operates at
two levels. First, I do not believe appellant identified any
errors so obvious that they satisfy the demanding plain error
standard. Second, the plain error the court identifies is
chimerical: at the same time substantive and procedural. This
oddity, I believe, raises a broader question regarding how this
circuit treats procedural sentencing challenges.

Although the principle is familiar, it bears restating that
courts rarely grant relief when reviewing for plain error.
Such relief is appropriate only in exceptional cases in which
the district court has been so egregiously derelict that it
causes a miscarriage of justice to hang like a specter over the
judicial process. See United States v. Frady, 456 U.S. 152,
163 (1982); United States v. Atkinson, 297 U.S. 157, 160
(1936). In appellant’s case, it is difficult to characterize the
monitoring and logging of his Internet usage as plainly and
obviously illegal as a substantive matter. And when such
modest conditions are placed on the freedom of a criminal
who preyed upon and sexually exploited a child for fun and
profit, I see no specter.

In my view, the computer conditions at issue are not akin
to the full computer use bans found to be unreasonable in the
cases to which the court analogizes. See Maj. Op. at 16.
Appellant is not restricted from using a computer or from
visiting any Internet site; he is only subject to monitoring. So
while the court is correct that the U.S. Sentencing Guidelines
suggest limits on computer use only for sex offenders who
used computers in their crimes, this suggestion is irrelevant.
 2
More helpful is the Guidelines’ suggestion that all sex
offenders be subject to “a search, at any time, with or without
a warrant . . . [of any] computer, or other electronic
communication or data storage devices or media . . . by any
probation officer in the lawful discharge of the officer’s
supervision functions.” U.S. SENTENCING GUIDELINES
MANUAL § 5D1.3(d)(7)(C). That suggestion opens a wide
avenue for the conditions appellant challenges in this case.

To counter that reasoning, appellant cites no case—and
the court finds none—in which monitoring and logging of a
sex offender’s Internet usage was found to be
incommensurate with the generally worded factors referenced
in 18 U.S.C. § 3583(d)(1). The court recognizes this,
volunteers that a lack of precedent militates against a finding
of plain error, and even cites a case of this court holding that
issues of first impression present plain error only when they
tread upon “a well-established constitutional or legal
principle,” United States v. Blackwell, 694 F.2d 1325, 1342
(D.C. Cir. 1982). See Maj. Op. at 16. However, the court
goes against the grain of precedent by stating that the
conditions at issue “are ‘plainly out of sync’ with the factors
listed in § 3583(d)(1).” Even putting aside that the conditions
can be easily justified on the basis of the statute’s deterrence
and public protection factors, the court’s statement is hard to
square with its later contention that it is not foreclosing the
possibility that the conditions “may be reasonably related to
some of the § 3583(d) factors” on remand, Maj. Op. at 17. If
the court is not foreclosing reasonableness, it is a fortiori
foreclosing plain error.

My opinion up to this point treats appellant’s appeal as a
substantive challenge to his release conditions, and the court
insists it does the same in its opinion. But by contemplating
that the conditions could be rehabilitated on remand with
 3
further explanation, the court appears to ascribe procedural
plain error to the district court for not connecting the
conditions to the relevant statutory factors. See Maj. Op. at
12 (“Not knowing the court’s reasons for imposing these
conditions . . . we vacate the conditions as plainly out of sync
with the relevant factors.”). This wrinkle in the court’s
opinion deserves more discussion, first because a proper
procedural analysis would still not result in a finding of plain
error and, second, because it sheds light on a latent problem
in this circuit’s caselaw regarding procedural sentencing
appeals.

If viewed as a procedural challenge, appellant’s argument
for plain error would be stronger, but ultimately unsuccessful.
18 U.S.C. § 3553—the portion of the U.S. Code pertaining to
the imposition of a sentence—mandates that a court “at the
time of sentencing, shall state in open court the reasons of its
imposition of the particular sentence.” 18 U.S.C. § 3553(c).
This court has held that failure to provide such a statement to
support the length of a prison sentence is plain error. See In
re Sealed Case, 527 F.3d 188, 193 (D.C. Cir. 2008). But
what we have not yet held is that failure to provide reasons
for conditions of release is plain error. In fact, we have held
the opposite, albeit in a brief dismissal of an equally brief
argument. See United States v. Sullivan, 451 F.3d 884, 896
(D.C. Cir. 2006) (finding no plain error where appellant
proffered a “terse contention” that the district court failed to
“substantiate” conditions of supervised release).

There is tension between those two holdings, and it
hinges on whether conditions of supervised release are part of
the “sentence” that § 3553 requires to be supported by a
statement of reasons. It is arguable they are, since the
statutory section regulating release conditions authorizes
courts to include conditions “as part of the sentence.” 18
 4
U.S.C. § 3583(a). And it seems logical that if courts must
explain one deprivation of liberty, they must explain others as
well.

But the question is also arguable the other way. The
structure of Title 18 indicates sentences and release
conditions are separate concepts: it discusses them in
separate, non-consecutive sections. Looking specifically at
§ 3583, it does not contain a requirement that courts explain
the imposition of release conditions and it does not reference
the explanation requirement in § 3553. When § 3583 does
reference § 3553, it only borrows factors to be considered in
crafting release conditions, see id. § 3583(c), implying that
the omission of a reference to § 3553’s explanation
requirement is deliberate.

The point of this opinion is not to resolve this question.
The only issue in this case, assuming a procedural challenge,
is whether the district court’s failure to explain release
conditions was an obvious enough error to constitute plain
error. As demonstrated by the foregoing discussion, any
procedural error was far from clear. But there will no doubt
be a case—perhaps in the near future—in which this court
will have to provide clarity.