United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 09-2142
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Jerry Lynn Simons, *
*
Appellant. *
___________
Submitted: March 10, 2010
Filed: July 21, 2010
___________
Before SMITH, BENTON, and SHEPHERD, Circuit Judges.
___________
SHEPHERD, Circuit Judge.
Jerry Simons pled guilty to failing to register as required by the Sex Offender
Registration and Notification Act (SORNA), 42 U.S.C. §§ 16901-16991, in violation
of 18 U.S.C. § 2250(a). The district court sentenced Simons to 24 months
imprisonment and 20 years of supervised release. In addition to the standard
conditions of supervised release, the court imposed 18 special conditions. Simons
appeals four of those special conditions. Because the district court plainly erred in
imposing one of the special conditions, we affirm in part, reverse in part, and remand
for further proceedings.
I.
On December 4, 2008, a criminal complaint was filed against Simons, charging
him with failure to register as a sex offender as required by SORNA, in violation of
18 U.S.C. § 2250(a). The following day, Simons was arrested by United States
Marshals in Omaha, Nebraska. A grand jury returned an indictment against Simons
on December 17, charging that, having previously been convicted in Kansas of an
offense that required him to register as a sex offender, he traveled in interstate
commerce to Nebraska and failed to register there. On January 29, 2009, Simons pled
guilty pursuant to a plea agreement.
The Presentence Investigation Report (PSR) identified two prior convictions
that are relevant here: (1) a 2003 Kansas conviction for attempted indecent liberties
with a child, for which Simons received 24 months probation,1 and (2) a 2005
Oklahoma conviction for first degree rape by force and fear, for which Simons
received a 30-year suspended sentence. As a result of his 2003 Kansas conviction,
Simons was required to register as a sex offender under SORNA; Simons had last
registered in Kansas in 2007. Simons had a base offense level of 16, which the district
court reduced to 13 based on his acceptance of responsibility pursuant to United States
Sentencing Commission, Guidelines Manual, §3E1.1(b) (Nov. 2009). Given Simons’s
4 criminal history points, his advisory Guidelines sentencing range was 24-30 months
imprisonment. Pursuant to the plea agreement, both parties asked the district court to
sentence Simons at the low end of the Guidelines range. The plea agreement was
silent as to any conditions of supervised release to be imposed by the court.
1
In February 2005, Simons’s Kansas probation was revoked for the following
violations: (1) new convictions in Missouri and Oklahoma; (2) failure to attend
treatment; (3) leaving the jurisdiction without permission; (4) failure to make
payments; and (5) failure to complete an evaluation. Simons served 14 months in
prison for the violations. (See PSR ¶ 29.)
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The district court followed the parties’ recommendations and sentenced Simons
to 24 months imprisonment. The court also placed Simons on supervised release for
a term of 20 years. In addition to the standard conditions of supervised release, the
district court imposed 18 special conditions of release recommended by the probation
office, of which 4 are relevant here:
3. Paragraph # 7 of the Standard Conditions of supervision is
modified, i.e., instead of merely refraining from excessive use of
alcohol, the defendant shall not purchase or possess, use,
distribute, or administer any alcohol, just the same as any other
narcotic or controlled substance. . . .
5. The defendant shall have no contact, nor reside with children
under the age of 18, including his/her own children, unless
approved in advance by the U.S. Probation Officer in consultation
with the treatment providers. The defendant must report all
incidental contact with children to the U.S. Probation Officer and
the treatment provider. Should the defendant have incidental
contact with a child, the defendant is required to immediately
remove him/herself from the situation and notify his/her U.S.
Probation Officer within 24 hours of this contact.
6. The defendant shall not access or come within 500 feet of schools,
school yards, parks, arcades, playgrounds, amusement parks, or
other places used primarily by children under the age of 18 unless
approved in advance by the U.S. Probation Officer. . . .
13. The defendant shall neither possess nor have under his/her control
any material, legal or illegal, that contains nudity or that depicts
or alludes to sexual activity or depicts sexually arousing material.
This includes, but is not limited to, any material obtained through
access to any computer, including a computer for employment
purposes, or any other material linked to computer access or use.
(Appellant’s Add. 4-5.) The district court did not explain why it imposed any of the
special conditions, noting only that 20 years of supervised release was “the best thing
that we can do to help [Simons] and to keep him in line.” (Sentencing Hr’g Tr. 8.)
Because Simons’s attorney had not discussed the probation office’s sentencing
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recommendations with him, Simons first learned of these special conditions at his
sentencing hearing. Simons objected to the special conditions generally, but did not
note any specific condition to which he objected or present any argument to support
his objection. The district court denied the objection, and this appeal followed.
II.
Simons appeals the imposition of the four special conditions of his supervised
release detailed above. We generally review the imposition of special conditions for
an abuse of discretion. See United States v. Carlson, 406 F.3d 529, 531 (8th Cir.
2005); United States v. Boston, 494 F.3d 660, 667 (8th Cir. 2007). However, when,
as here, a defendant fails to timely and specifically object to such conditions at the
sentencing hearing, we review only for plain error. See United States v. Stults, 575
F.3d 834, 854 (8th Cir. 2009), cert. denied, 130 S. Ct. 1039 (2010); Carlson, 406 F.3d
at 531. In their briefing to this court, both parties argued that we should review for
abuse of discretion. For the first time at oral argument, however, the government
argued that Simons’s objection at the sentencing hearing was insufficient to preserve
the issue for appeal, therefore we should review only for plain error. Having reviewed
the transcript of the sentencing hearing, it appears that Simons’s attorney presented
only a general objection to the special conditions imposed by the court, noting neither
the basis for his objection nor the specific conditions to which he was objecting. (See
Sentencing Hr’g Tr. 14 (“Judge, my client has got some -- some concerns, and
probably the best thing to do would be just me object to the -- to the special conditions
and then I talk to him and at least there’s a record there in case he needs to appeal
them.”).) Thus, we must review only for plain error.2 “Plain error occurs if the
2
While we agree with the government’s belated argument that we should review
only for plain error, we note that the government’s failure to raise this argument in its
brief or its letter to this Court under Federal Rule of Appellate Procedure 28(j) has
hindered Simons’s ability to adequately respond and, in turn, our ability to decide the
issue after hearing reasoned argument from both parties.
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district court deviates from a legal rule, the error is clear under current law, and the
error affects the defendant’s substantial rights.” United States v. Crose, 284 F.3d 911,
912 (8th Cir. 2002) (per curiam). The error must also “seriously affect the fairness,
integrity or public reputation of judicial proceedings.” United States v. Davis, 452
F.3d 991, 994 (8th Cir. 2006) (quoting United States v. Olano, 507 U.S. 725, 736
(1993)).
Although a district court “is afforded wide discretion when imposing terms of
supervised release,” United States v. Crume, 422 F.3d 728, 732 (8th Cir. 2005), 18
U.S.C. § 3583(d) limits that discretion, providing that a court may impose special
conditions only if three requirements are met:
First, the special conditions must be “reasonably related” to five matters:
the nature and circumstances of the offense, the defendant’s history and
characteristics, the deterrence of criminal conduct, the protection of the
public from further crimes of the defendant, and the defendant’s
educational, vocational, medical or other correctional needs. 18 U.S.C.
§§ 3583(d)(1), 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D); United States
v. Fields, 324 F.3d 1025, 1026-27 (8th Cir. 2003). Second, the
conditions must “involve[] no greater deprivation of liberty than is
reasonably necessary” to advance deterrence, the protection of the public
from future crimes of the defendant, and the defendant’s correctional
needs. 18 U.S.C. §§ 3583(d)(2), 3553(a)(2)(B), (a)(2)(C), (a)(2)(D).
Finally, the conditions must be consistent with any pertinent policy
statements issued by the sentencing commission. 18 U.S.C.
§ 3583(d)(3).
Crume, 422 F.3d at 733. This “inquiry must take place on an individualized basis.”
United States v. Bender, 566 F.3d 748, 752 (8th Cir. 2009) (quotation omitted).
Applying these standards, we consider each of Simons’s objections in turn.
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A.
It is a standard condition of supervised release that the defendant “refrain from
excessive use of alcohol.” USSG §5D1.3(c)(7). Special condition 3 modifies that
standard condition, providing that Simons “shall not purchase or possess, use,
distribute, or administer any alcohol.” Simons argues that this condition is not
reasonably related to him, his offense, deterrence, or protection of the public, as
required by 18 U.S.C. § 3583(d)(1). He argues that there is no evidence that he is an
alcohol abuser or that alcohol contributed in any way to his present conviction. The
government counters that Simons’s self-reported manic-depressive disorder,3
combined with his dishonesty about his alcohol use, was a sufficient basis for the
district court to impose a complete ban on alcohol.
The evidence before the district court at the sentencing hearing was that Simons
consumed alcohol one to three times per month, with his last reported use in
December 2008. Simons also reported that he first used marijuana at the age of 12,
and that he used it a few times until June 2003. Simons reported that he was
diagnosed with manic-depressive disorder as a child and that he was prescribed and
took medication for this condition while he was incarcerated in 2007. However, he
could not provide the names of the medications he took nor the name of the institution
where he was diagnosed. Additionally, the district court was aware that an application
to revoke Simons’s suspended 30-year Oklahoma sentence had been filed for his
“failure to report to the probation office, failure to provide an accurate address, failure
3
Manic-depressive disorder, also called bipolar disorder, is a mood disorder
“characterized by episodes of a very high, often irritable, expansive mood that can be
accompanied with things like impulsive behavior, disturbed sleep, decreased need for
sleep, [and] rapid speech,” combined with “separate depressive episodes which are
low, depressed, sad moods that also have sleep/appetite disturbances.” Sigala v.
Quarterman, 338 F. App’x 388, 392 (5th Cir. 2009) (unpublished per curiam); see also
Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 382-
401 (4th ed. text revision 2000).
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to pay fines and costs, and failure to successfully complete sex offender counseling,
as well as the results of a polygraph examination showing that he was being deceptive
concerning the use of alcohol and having contact with minor children.” (PSR ¶ 30.)
Our prior reviews of special conditions imposing complete bans on alcohol
have yielded mixed results. In general, we have upheld such bans for defendants with
substance-abuse problems. See United States v. Behler, 187 F.3d 772, 778-79 (8th
Cir. 1999) (upholding ban on alcohol for a drug-trafficking defendant with a
significant history of substance abuse because alcohol use was inconsistent with the
defendant’s rehabilitation process and because “the evidence . . . indicated that any
use of alcohol would limit [his] ability to maintain a drug-free lifestyle”); United
States v. Cooper, 171 F.3d 582, 584, 586-87 (8th Cir. 1999) (upholding ban on
alcohol for defendant, an over-the-road truck driver convicted of transporting
explosive materials, because “there [was] some evidence that [the defendant] abused
his wife and children, that he and his wife consumed large quantities of alcohol on
weekends when he was employed as a truck driver, and that the couple argued more
when [he] had been drinking” and because being a truck driver was “particularly
incompatible with alcohol consumption”). But see United States v. Bass, 121 F.3d
1218, 1219, 1223-25 (8th Cir. 1997) (reversing alcohol ban for defendant convicted
of conspiracy and possession of crack cocaine who admitted to smoking marijuana
approximately twice per week). In cases where the defendant’s history or crime of
conviction did not support a complete ban on alcohol, we have reversed. See, e.g.,
United States v. Prendergast, 979 F.2d 1289, 1292-93 (8th Cir. 1992) (reversing
alcohol ban for defendant convicted of fraud because there was “no evidence
indicating that [he] suffers from alcoholism or that the use of alcohol in any way
contributed to the commission of the offense for which he was sentenced”).
Given this precedent, we question whether Simons’s self-reported manic-
depressive disorder, coupled with an application to revoke his suspended sentence in
Oklahoma due, at least in part, to dishonesty about his alcohol use, is sufficient to
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justify a 20-year ban on using or possessing alcohol. However, even assuming the
district court erred in imposing this special condition, we do not believe that it rises
to the level of plain error. See United States v. Bongiorno, 139 F.3d 640, 640-41 (8th
Cir. 1998) (per curiam) (declining to review, under plain error, a special condition of
supervised release forbidding the use or possession of alcohol); United States v.
McKissic, 428 F.3d 719, 720-24 (7th Cir. 2005) (holding that a district court did not
plainly err in imposing a complete ban on alcohol possession for a defendant
convicted of armed bank robbery). As such, we will not disturb it on appeal.
B.
Special condition 5 prohibits Simons from having any contact with children
under the age of 18, including his own children, unless the contact is approved in
advance by his probation officer. It also requires Simons to report any incidental
contact he has with children. Simons argues that prohibitions on contact with children
are appropriate only for defendants convicted of serious crimes, such as possession
of child pornography, and not for what he characterizes as relatively minor offenses,
such as failure to register as a sex offender. Thus, he argues that the condition
involves a greater deprivation of liberty than is reasonably necessary, in violation of
18 U.S.C. § 3583(d)(2).
Simons is correct that we have often upheld conditions like special condition
5 for defendants convicted of child pornography offenses. See, e.g., United States v.
Kerr, 472 F.3d 517, 521-23 (8th Cir. 2006) (possessing and distributing child
pornography); United States v. Mickelson, 433 F.3d 1050, 1051, 1056-57 (8th Cir.
2006) (receiving child pornography); United States v. Mark, 425 F.3d 505, 506-08
(8th Cir. 2005) (possessing child pornography); Crume, 422 F.3d at 730, 734
(receiving and possessing child pornography); United States v. Heidebur, 417 F.3d
1002, 1003, 1005 (8th Cir. 2005) (possessing materials involving the sexual
exploitation of a minor). But Simons is incorrect in inferring that possession of child
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pornography is the only type of offense for which a prohibition on contact with
children is appropriate. For example, in United States v. Levering, 441 F.3d 566, 569-
70 (8th Cir. 2006), we upheld a prohibition on contact with female children under the
age of 18 unless the defendant had prior approval of the probation office. There, the
defendant had pled guilty to knowingly using force to engage in a sexual act with his
13-year-old cousin. Id. at 568. In upholding the special condition, we noted that “we
have, on several occasions, approved virtually identical supervised release conditions
for defendants guilty of less egregious conduct[.]” Id. at 569 (quotation omitted).
In many of our cases affirming no-contact conditions, we have cited a
defendant’s history of sexual abuse of minors as a factor in our decisions. See, e.g.,
Mark, 425 F.3d at 508 (finding the district court did not abuse its discretion by
imposing condition limiting contact with minors without permission, where defendant
had a history of violating conditions of release and the record reflected some sexual
exploration with a minor); Crume, 422 F.3d at 734 (finding no abuse of discretion
where district court imposed a no-contact condition because the child with whom the
defendant desired contact was conceived as a result of his impregnating a
fourteen-year-old girl). Furthermore, § 3583(d) requires us to examine a defendant’s
history and personal characteristics. See 18 U.S.C. § 3583(d)(1) (citing 18 U.S.C. §
3553(a)(1)). Here, Simons has two convictions involving minor victims: (1) his 2003
Kansas conviction for attempted indecent liberties with a child, and (2) his 2005
Oklahoma conviction for first degree rape by force and fear. It appears that the victim
of Simons’s Oklahoma rape was his 15-year-old sister-in-law. We conclude that
Simons’s criminal record adequately supports the district court’s no-contact condition,
protecting the public from his future crimes. Moreover, we note that the condition is
not a complete ban, as Simons can still have contact with minors, including his own
children, if he obtains permission from his probation officer. Thus, because
“requiring prior approval before [Simons,] a convicted sex offender[,] has contact with
minors is a reasonable means of ensuring that such contact remains appropriate[,]”
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Mickelson, 433 F.3d at 1057, we hold that special condition 5 is not unreasonably
restrictive, and the district court did not plainly err in imposing it.
C.
Special condition 6 prohibits Simons from coming within 500 feet of schools,
parks, playgrounds, or other places used primarily by children under the age of 18,
unless he secures prior approval from his probation officer. Simons argues that this
condition is unnecessarily restrictive, in violation of 18 U.S.C. § 3583(d)(1), as it
bears no relationship to his offense or criminal history.
We have previously upheld conditions prohibiting a defendant from visiting
places where children congregate. See Crume, 422 F.3d at 730, 733-34 (upholding
special condition prohibiting a child-pornography defendant from visiting “places
where minor children under the age of 18 congregate” without permission of his
probation officer); United States v. Ristine, 335 F.3d 692, 693, 696-97 (8th Cir. 2003)
(same). But see Bender, 566 F.3d at 753-54 (reversing, as a greater deprivation of
liberty than was reasonably necessary, a condition that prohibited a defendant from
frequenting places minors are known to frequent without permission, and then only
in the presence and supervision of a responsible adult). As Simons points out, special
condition 6 goes beyond Crume and Ristine in that it prohibits him not just from going
to places where children congregate, but from even coming within 500 feet of such
places. However, in Stults, we addressed an identical condition that prohibited a
defendant from coming “within 500 feet of schools, school yards, parks, arcades,
playgrounds, amusement parks, or other places used primarily by children under the
age of 18 unless approved in advance and in writing by the probation officer.” 575
F.3d at 851. Given the defendant’s history of sexually abusing minors, and the fact
that he could get permission from his probation officer to come within 500 feet of
places used primarily by children, we upheld the condition. Id. at 853.
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We find the reasoning in Stults persuasive. First, given Simons’s history of
committing crimes against children, a ban on coming near places where children
congregate is consistent with the district court’s duty to protect the public from
Simons’s future crimes. Second, as in Stults, Crume, and Ristine, special condition
6 is not a complete ban. Simons may still come within 500 feet of places used
primarily by children, as long as he has the prior approval of his probation officer.
Such “[c]onditions requiring the prior approval of a probation officer are consistently
upheld.” Stults, 575 F.3d at 853 (quotation omitted). Finally, although a prohibition
on coming within 500 feet of a place where children congregate is stricter than a
prohibition on merely being in such places, this does not change our analysis.
Although Simons claims that this will “restrict where [he] lives, works, drives, shops,
and eats,” those concerns are alleviated by the fact that his probation officer can
approve, in advance, certain exceptions to the 500-foot prohibition. Thus, we hold
that the district court did not plainly err in imposing special condition 6.
D.
Special condition 13 prohibits Simons from possessing or having under his
control “any material, legal or illegal, that contains nudity or that depicts or alludes
to sexual activity or depicts sexually arousing material.” (Appellant’s Add. 5.)
Simons argues that the condition is unconstitutionally vague and overbroad, infringing
on what he alleges to be his First Amendment right to view nonobscene material that
contains nudity. See Erznoznik v. City of Jacksonville, 422 U.S. 205, 208-12 (1975);
see also United States v. Loy, 237 F.3d 251, 261-62, 266-67 (3d Cir. 2001) (holding
that a prohibition on possessing pornography violated the defendant’s First
Amendment rights because it “might apply to a wide swath of work ranging from
serious art to ubiquitous advertising” and “to any art form that employs nudity”); cf.
Miller v. California, 413 U.S. 15, 23 (1973) (noting that “obscene material is
unprotected by the First Amendment”). Simons also argues that the condition grants
too much discretion to the probation officer in deciding what constitutes “sexual
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activity” and “sexually arousing material,” and is not sufficiently related to his crime,
his criminal history, or the sentencing purposes of 18 U.S.C. § 3583(d)(1).
Prohibitions on the possession of pornographic materials are not unusual special
conditions, and they have often withstood First Amendment challenges. See, e.g.,
Stults, 575 F.3d at 854-55 (upholding, on plain error review, a child-pornography
defendant’s ban on “accessing, viewing, or possessing any pornographic sexually
oriented or sexually stimulating materials”) (quotation and alteration omitted); Boston,
494 F.3d at 667-68 (holding that district court did not abuse its discretion in imposing
a ban on “view[ing] or possess[ing] any form of pornography, sexually stimulating or
sexually oriented material”); Ristine, 335 F.3d at 694-95 (upholding, on plain error
review, a ban on possessing pornographic materials for a defendant convicted of
receiving child pornography). The portion of special condition 13 that prohibits
Simons from possessing or viewing material that depicts or alludes to sexual activity
or depicts sexually arousing material is very similar to the conditions we upheld in
Stults and Boston. As a whole, however, special condition 13 goes beyond those
cases, prohibiting Simons from possessing any material that depicts nudity. By its
terms, it would prohibit Simons from viewing a biology textbook or purchasing an art
book that contained pictures of the Venus de Milo, Michelangelo’s David, or
Botticelli’s Birth of Venus, all of which depict nudity.
To our knowledge, the Seventh Circuit is the only federal court to have
addressed a special condition similar to the one at issue here. In United States v.
Holm, 326 F.3d 872 (7th Cir. 2003), the defendant had pled guilty to possession of
child pornography. Id. at 874. In addition to challenging the constitutionality of his
conviction, the defendant challenged a number of his conditions of supervised release,
one of which prohibited “possession of material containing nudity.” Id. His
discussion of the supervised release issues on appeal, however, was “brief to the point
of brushing up against full-blown waiver,” as the “entire discussion of the subject
[was] contained within slightly more than a single page” of his brief, and included “no
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citations to additional material in the record, beyond the court’s judgment itself, that
might help to illuminate the basic contours of his claims.” Id. at 877. Nevertheless,
the court “look[ed] briefly at [the defendant’s] claims” and affirmed the special
condition prohibiting possession of material containing nudity without discussion. Id.
Without some guidance from the Seventh Circuit about the reasoning for its decision
or information about why the district court imposed the special condition on that
particular defendant, Holm does little to assist our analysis here.
The government attempts to save special condition 13 by analogizing it to cases
like Stults, Boston, and Ristine, which upheld prohibitions on possessing
pornography, essentially arguing that special condition 13 was intended to prohibit
Simons from viewing or possessing pornography. But special condition 13 goes well
beyond the conditions upheld in those cases. Whatever the definition of
“pornography,”4 it includes more than mere nudity. See Jenkins v. Georgia, 418 U.S.
153, 161 (1974) (“[N]udity alone is not enough to make material legally
obscene . . . .”); United States v. Kemmerling, 285 F.3d 644, 645-46 (8th Cir. 2002)
(“We have held that more than mere nudity is required before an image can qualify
as ‘lascivious’ within the meaning of the [child pornography statute].”). Indeed, if the
district court was attempting to prohibit Simons’s possession of pornography, a ban
on materials that contain nudity may have been superfluous; a ban on “material that
depicts or alludes to sexual activity or depicts sexually arousing material” would also
ban pornography, at least under some definitions of the word. See Black’s Law
4
Although the definition of “obscenity” has been thoroughly examined by the
Supreme Court, culminating in the now-familiar Miller test, see Miller v. California,
413 U.S. 15 (1973), “[d]efining pornography is notoriously difficult[,]” Cass R.
Sunstein, Pornography and the First Amendment, 1986 Duke L.J. 589, 591. In Miller,
the Court used only a footnoted dictionary definition of the word, see 413 U.S. at 18
n.2, and the Court has not subsequently addressed the term outside the context of
pornography involving or depicting children. To be sure, not all material that
qualifies as pornography would also meet the Miller test of obscenity. See Ashcroft
v. Free Speech Coalition, 535 U.S. 234, 240 (2002).
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Dictionary 1279 (9th ed. 2009) (defining pornography as “[m]aterial (such as writings,
photographs, or movies) depicting sexual activity or erotic behavior in a way that is
designed to arouse sexual excitement”); Miller, 413 U.S. at 18 n.2 (defining
pornography as “a depiction (as in writing or painting) of licentiousness or lewdness:
a portrayal of erotic behavior designed to cause sexual excitement.” (quoting
Webster’s Third New International Dictionary (Unabridged 1969))). Thus, our prior
decisions upholding prohibitions on possessing pornography are insufficient to save
special condition 13.
The government also argues that the probation office and, ultimately, the
district court can act to limit the reach of special condition 13 to obscene materials or
pornography, thereby bringing it within the reach of Stults, Boston, and Ristine. In
essence, the government argues that if special condition 13 is administered in a way
that infringes on Simons’s First Amendment rights, the district court can step in and
correct the problem. The plain language of special condition 13, however, includes
no mechanism for prior approval by the probation office, unlike special conditions 5
and 6. And having the district court determine, on a case-by-case, if material that
Simons possesses violates special condition 13 is an inefficient way of determining
the lawful scope of the condition. While it is true that “[c]ondemned to the use of
words, we can never expect mathematical certainty from our language[,]” Grayned
v. City of Rockford, 408 U.S. 104, 110 (1972), and district courts must be granted
some leeway in fashioning conditions of supervised release that are consistent with
18 U.S.C. § 3583(d), if the district court wished to limit Simons’s access to
pornography, we see no reason why special condition 13 could not have been written
to state exactly that. As it is currently written, however, special condition 13 involves
a “greater deprivation of liberty than is reasonably necessary[,]” 18 U.S.C. §
3583(d)(2), which affected Simons’s substantial First Amendment rights. Thus, we
hold that the district court plainly erred in imposing special condition 13, and we
vacate that condition and remand for additional findings of fact and resentencing.
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III.
For the reasons stated above, we affirm special conditions 3, 5, and 6, vacate
special condition 13, and remand to the district court for further proceedings
consistent with this opinion.
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