FILED
United States Court of Appeals
Tenth Circuit
December 18, 2008
Elisabeth A. Shumaker
Clerk of Court
PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 07-5117
VINSON L. HAHN,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Oklahoma
(D.C. No. 4:06-CR-00167-001-CVE)
James Fatigante of Tulsa, Oklahoma, for Defendant-Appellant.
Charles M. McLoughlin, Assistant United States Attorney (David E. O’Meilia,
United States Attorney, with him on the brief), Tulsa, Oklahoma, for Plaintiff-
Appellee.
Before HARTZ, SEYMOUR and O’BRIEN, Circuit Judges.
SEYMOUR, Circuit Judge.
Vinson L. Hahn pled guilty to violating 18 U.S.C. § 656, the misapplication
of financial institution funds, and was sentenced to eighteen months incarceration
and a five-year term of supervised release. He appeals, challenging the
calculation of loss, restitution order, consecutive sentence, and application of
special sex offender conditions. We affirm.
I.
Mr. Hahn began his employment with the Bank of Oklahoma (BOK) in
October 1999 as a Transfund ATM technician. In February 2002, following a
discovery of shortages in the automated teller machines (ATMs), BOK began an
investigation. ATMs are stocked with “straps” of cash, with each strap containing
100 bills of varying denominations. The machines were reporting straps
containing only seventy-nine or eighty bills. Investigators learned that the
problem appeared to result from someone taking bills out of the straps used to
refill the ATM and then putting a “short” strap into the machine.
Authorities subsequently initiated a formal investigation focusing on Mr.
Hahn after discovering a strap on his route with only forty-eight bills in it. They
found additional shortages after a change in his regular route. Then, on January
27, 2004, Mr. Hahn was detected by a surveillance camera installed by
investigators. The method Mr. Hahn used to take the money — removing part of
a strap of bills taken from the replenishment stash — was consistent with the
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previous thefts. He was found to have $640 on his person and he admitted to
having taken money on several prior occasions. He was terminated from his
employment at BOK.
Several months later, Mr. Hahn was arrested for an unrelated state offense,
two counts of lewd and indecent proposal to a child. He was found guilty on
April 6, 2006 and sentenced to consecutive seven and twelve year sentences.
The one-count information in the present case charged Mr. Hahn with the
misapplication of financial institution funds between November 22, 1999 and
January 27, 2004. He pled guilty and was sentenced to eighteen months
incarceration followed by a five-year term of supervised release, to run
consecutive to the nineteen-year state sentence. The court also ordered restitution
in the amount of $53,392.75. The court imposed the standard conditions of
supervised release as well as several additional ones including special sex
offender conditions.
II.
Mr. Hahn argues that the district court incorrectly calculated the amount of
loss, and that his sentence under the guidelines is therefore in error. The district
court found by a preponderance of the evidence that the loss to BOK was
$55,782.64, which increased Mr. Hahn’s offense level under the guidelines by 6
levels. See U.S.S.G. § 2B1.1(b)(1).
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We review the district court’s calculation of loss for clear error. United
States v. Leach, 417 F.3d 1099, 1105 n.8 (10th Cir. 2005). “To reverse under this
standard requires that, based on the entire evidence, we have a ‘definite and firm
conviction that a mistake has been committed.’” O’Toole v. Northrop Grumman
Corp., 499 F.3d 1218, 1221 (10th Cir. 2007) (quoting Easley v. Cromartie, 532
U.S. 234, 242 (2001)). The applicable guidelines’ commentary notes that the
sentencing court “need only make a reasonable estimate of the loss,” explaining
that “[t]he sentencing judge is in a unique position to assess the evidence and
estimate the loss based upon that evidence.” U.S.S.G. § 2B1.1. cmt. n.3(C).
Witnesses for the prosecution testified that Mr. Hahn told investigators he
deposited the cash he took from ATMs into his bank account. 1 According to
investigators, Mr. Hahn admitted to having a gambling problem, but said that he
kept his gambling winnings at home. Mr. Hahn did not identify any other sources
of income to explain the cash deposits. The government presented evidence
showing there were between two and seven cash deposits into Mr. Hahn’s account
each month, and that withdrawals from ATMs located in or near casinos occurred
more frequently and for larger amounts over time. The district court based its
calculation of loss on the evidence showing the amount of cash deposited into Mr.
Hahn’s checking account during his employment with BOK. The government
1
Mr. Hahn’s paychecks from his Transfund employment and the National
Guard were deposited directly into his bank account.
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concedes that it does not have direct evidence of the actual amount of loss to
BOK, which it believes to be much higher. 2
The government presented an exhibit comparing actual losses from the
ATMs to expected or “baseline” losses, with expected losses based on average
loss per ATM machine prior to Mr. Hahn’s employment with BOK. The total
above-baseline loss to the Tulsa region from 2000 to 2004 was $203,690. The
loss jumped from $18,664 in 1998 and $19,918 in 1999 to $41,039 in 2000,
$50,972 in 2001, $77,155 in 2002, and $104,954 in 2003. The most damaging
circumstantial evidence came from 2004, when Mr. Hahn only worked for twenty-
seven days in January before being dismissed. The loss for that one month was
$22,033, while the total loss for the remainder of the year was only $7,707. One
witness’s conclusion when asked about the figures was that “[the losses] started
ramping up at the time of the first cash deposit last November [1999] and came to
a screeching halt in the month of January of 2004.” Rec., vol. III at 79 (testimony
of Mr. Bourgeois). The government introduced several additional pieces of
evidence, including Mr. Hahn’s admissions to investigators regarding the amount
2
The court found the loss was $55,782.64 but noted that it “believe[d] that
the amount of that loss actually sustained as a result of thefts by this defendant
[was] much higher, but that the defendant has benefitted from the fact that
perhaps only a portion of his thefts were deposited into his checking accounts.”
Rec., vol. III at 96.
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of the thefts 3 and audits of losses on Mr. Hahn’s route. 4
Defendant argues that the government failed to present evidence sufficient
to support the court’s finding. He points to the lack of evidence linking the cash
deposits in his account to BOK’s losses and to the 2000 and 2001 audits that
failed to reveal problems with his route. Mr. Hahn also challenges the
government’s calculation of losses based on the entire Tulsa region, rather than
on Mr. Hahn’s routes specifically. 5
The district court relied on the “credibility of the witnesses called by the
government and [] the strength of the pattern evidenced in [the] Government’s
Exhibits.” Rec., vol. III at 95. The court noted the pattern and frequency of cash
deposits (which were often in round numbers), Mr. Hahn’s gambling habit and
“financially precarious position,” and his admission that he deposited the stolen
3
When he was first apprehended in January 2004, Mr. Hahn told
investigators that he had stolen from ATMs on two or three occasions during the
past year, taking a total amount of between six and eight thousand dollars. Mr.
Hahn later told investigators that the total could be between ten and twelve
thousand and that he was unsure of the exact amount, as “he would just take cash
out and put it in his pocket.” Rec., vol. III at 15. He said that he first began
taking money out “around 1999 or 2000.” Id.
4
Audits performed in 2000 and 2001 did not reveal a problem with Mr.
Hahn’s route. Audits in 2002 and 2003 did reveal shortages in his route, although
only in the amount of a few thousand dollars. Following Mr. Hahn’s
apprehension in early 2004, investigating officers performed a full audit on his
route and found five ATMs with shortages.
5
It is not clear from the record why the government did not provide data
specific to the route that Mr. Hahn serviced.
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cash into his checking account but kept his gambling winnings at home. Id. at 95-
96. Mr. Hahn is correct to note there is no evidence directly linking the deposits
made to his account to the losses recorded by the bank. There are, however,
possible explanations for this apparent discrepancy, such as difficulty in
detection 6 and the likelihood that Mr. Hahn did not immediately deposit all of the
money he took. Audits of Mr. Hahn’s routes revealed shortages, the losses to the
Tulsa region dropped off drastically following his termination, and Mr. Hahn
admitted he deposited cash from the ATM thefts into his account and was unable
to name any other source for the cash deposits. In short, under a clear error
standard, the record contains evidence sufficient to support the sentencing court’s
findings. We therefore affirm the district court’s calculation of loss.
III.
We review the factual findings underlying the district court’s restitution
order for clear error and the amount of restitution for abuse of discretion. United
States v. Quarrell, 310 F.3d 664, 676 (10th Cir. 2002). As discussed above, the
record contains sufficient evidence to support a finding that the BOK sustained a
6
Witnesses for the prosecution explained that detection was made difficult
by the lack of surveillance cameras in the ATMs and that fact that ATMs are
stocked with a nine-day supply, which means that irregularities are not noticed
until a week or more after the ATM was stocked. Piece count audits–where each
bill is counted–are done only once at year. They also noted that all teams have
access to all of the ATMs in the area, further complicating detection.
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loss of $55,782.64. Accordingly, the evidence is also sufficient to support the
restitution order based on that finding of loss. 7
IV.
Mr. Hahn contends the district court erred in sentencing him consecutively
to his state sentence. We review the district court’s decision for abuse of
discretion. See United States v. Hurlich, 293 F.3d 1223, 1230 (10th Cir. 2002).
Section 5G1.3 of the Sentencing Guidelines governs the imposition of a
sentence where the defendant has an undischarged term of imprisonment.
Subsection § 5G1.3(a) does not apply because the instant offense was not
committed while the defendant was serving a time of imprisonment. Likewise, §
5G1.3(b) does not apply because the undischarged state sentence was not relevant
conduct to the instant offense. See U.S.S.G. § 5G1.3(a)-(b). We therefore look to
§ 5G1.3(c)’s Policy Statement, which applies to all cases involving an
undischarged term of imprisonment not falling within subsections (a) or (b). See
U.S.S.G. § 5G1.3(c). The Policy Statement grants the sentencing court discretion
to determine whether the sentence should be concurrent, partially concurrent, or
consecutive in order to “achieve a reasonable punishment for the instant offense.”
Id. The Application Note instructs the sentencing court to consider, inter alia, the
7
The court subtracted $2,389.89, the amount of restitution Mr. Hahn had
already paid BOK, to arrive at the total restitution ordered, $53,392.75.
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factors laid out in 18 U.S.C. § 3553(a). U.S.S.G. § 5G1.3 cmt. n.3(A).
The district court provided a statement of reasons, as required under our
case law. Hurlich, 293 F.3d at 1230. 8 The court was not required to make
specific findings, as Mr. Hahn argues. Id. at 1230. The sentencing court did not
abuse its discretion in giving Mr. Hahn a consecutive sentence.
V.
Mr. Hahn challenges the imposition of special sex offender conditions,
arguing that the conditions do not meet 18 U.S.C. § 3583(d)’s requirements for
conditions of supervised release. We review the district court’s decision to
impose special conditions of supervised release for abuse of discretion. United
States v. Bartsma, 198 F.3d 1191, 1197 (10th Cir. 1999).
The district court gave Mr. Hahn prior notice of its intent to impose sex
offender conditions as required under our prior holdings. See Bartmsa, 198 F.3d
at 1200 (holding as matter of first impression that district court must give
“reasonable presentence notice” before ordering sex offender registration as a
special condition), overruled on other grounds by United States v. Atencio, 476
F.3d 1099, 1105 n.6 (10th Cir. 2007). Mr. Hahn filed a notice of objection to
8
“The Court has considered the need for this sentence to reflect the
seriousness of the offense, to promote respect for the law, provide for just
punishment, avoid unwarranted disparities among defendants, and to afford
adequate deterrence to protect the public. Based on those factors, the sentence
imposed in this case shall run consecutively to the undischarged terms of
imprisonment imposed in the state court case.” Rec., vol. IV at 20.
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those conditions. At the final sentencing hearing, after hearing argument from
both sides, the court imposed the special sex offender conditions. 9
The district court is required to give reasons on the record for the
imposition of special conditions of supervised release. See United States v.
Kravchuk, 335 F.3d 1147, 1159 (10th Cir. 2003). The court need only provide a
“generalized statement of its reasoning.” United States v. Edgin, 92 F.3d 1044,
1049 (10th Cir. 1996). Here, the sentencing court provided an explanation of its
decision at the final sentencing hearing:
9
The special sex offender conditions, pursuant to General Order 99-17
(Northern District of Oklahoma, July 13, 1999), mandate that the defendant (1)
register as a sex offender in accordance with state law; (2) participate in sex
offender and/or mental health treatment as directed by probation officer,
including submission to risk assessment and psychological testing; (3) not have
contact with children under the age of eighteen without prior written permission
of probation officer and immediately report any unauthorized conduct; (4) not
engage in any occupation, business, or profession with access to children under
the age of eighteen without prior written approval of probation officer; (5) not
loiter within 100 feet of schools, parks, playgrounds, arcades, or other places
frequented by children under the age of eighteen; (6) not possess sexually
stimulating or sexually oriented material as deemed inappropriate by probation
officer and/or treatment staff, or patronize any place where such material or
entertainment is available; (7) maintain an appropriate appearance at all times; (8)
not enter the premises or loiter near where the victim resides, is employed, or
frequents except under circumstances approved in advance and in writing by
probation officer; (9) at the discretion of probation officer, post a sign, mounted
on any entrance to the residence, stating “(defendant’s name), who resides in this
residence, will have no contact with person(s) under the age of 18”; (10) at the
discretion of probation officer, reside in and successfully participate in a
Community Corrections Center for up to one year or until discharged by
probation officer; (11) not subscribe to or use any Internet service without first
receiving written permission from probation officer; (12) not consume or possess
alcohol or any other intoxicating beverage.
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[T]he Court finds that the history and characteristics of this
defendant, the fact that the [sex] crimes occurred immediately . . .
after cessation of the activity in this case, and the fact that the United
States probation officer is supervising the defendant and not the
particular crime of which he is convicted, the Court finds that the
imposition of the sex offender conditions . . . is appropriate and
reasonable.
Rec., vol. IV at 24. Accordingly, we reject Mr. Hahn’s claim that the sentencing
court erred by not providing specific factual findings.
We have not dealt squarely with the imposition of sex offender special
conditions where the underlying offense was not a sex crime. 10 We have dealt,
however, with the case of nonmandatory special conditions imposed for conduct
unrelated to the underlying offense. See United States v. Barajas, 331 F.3d 1141,
1143 (10th Cir. 2003) (defendant convicted for firearms offense challenged
special conditions requiring counseling and child support payments); Edgin, 92
F.3d at 1046-47 (defendant convicted of making threatening telephone call
challenged special condition prohibiting communication with son). The general
rule from these decisions applies to sex offender special conditions: while the
sentencing court has broad discretion in setting the conditions of supervised
release, those conditions must satisfy the three statutory requirements laid out in
10
We addressed a challenge to sex offender registration requirements in
Bartsma, 198 F.3d at 1200. In that case, however, we remanded on the basis of
lack of notice and so did not reach the issue of whether the court abused its
discretion by imposing the registration requirement on a defendant convicted of a
firearm offense.
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18 U.S.C § 3583(d). Edgin, 92 F.3d at 1048.
Section 3583(d) provides in pertinent part:
The court may order, as a further condition of supervised release, to
the extent that such condition--(1) is reasonably related to the factors
set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D); (2)
involves no greater deprivation of liberty than is reasonably
necessary for the purposes set forth in section 3553(a)(2)(B),
(a)(2)(C), and (a)(2)(D); and (3) is consistent with any pertinent
policy statements issued by the Sentencing Commission pursuant to
28 U.S.C. 994(a); any condition . . . it considers to be appropriate
....
Read together with the cross-references to 18 U.S.C. § 3553(a), then, the
condition must (1) “be reasonably related to the nature and circumstances of the
offense and the history and characteristics of the defendant” and (2) “involve no
greater deprivation of liberty than is reasonably necessary given the needs to
afford adequate deterrence to criminal conduct, to protect the public from further
crimes of the defendant, and to provide the defendant with needed educational or
vocational training, medical care, or other correctional treatment in the most
effective manner.” Edgin, 92 F.3d at 1048 (internal citations, quotation marks
omitted). 11 While the condition must satisfy both § 3583(d)(1) (requiring
reasonable relationship to the § 3553 factors) and § 3583(d)(2) (involve no
greater deprivation of liberty than necessary), id. at 1049 n.5, it does not need to
be reasonably related to all of the factors in § 3553. See Barajas, 331 F.3d at
11
Section 5D1.3(b) of the Sentencing Guidelines mirrors 18 U.S.C. §
3583(d). See id.; U.S.S.G. § 5D1.3(b).
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1146 (“[E]very circuit to have decided the issue has held that a condition of
supervised release may be imposed despite not being related to every enumerated
factor, so long as it is reasonably related to one or more of the factors. . . . We
agree with these decisions.”).
Other circuits addressing this issue have followed the rule that special
conditions may be imposed notwithstanding the conduct at which they are
targeted is unrelated to the offense of conviction. See, e.g., United States v.
McKissic, 428 F.3d 719 (7th Cir. 2005) (upholding ban on alcohol use where
defendant had not been diagnosed as alcoholic and offense was unrelated to
alcohol use); United States v. Camp, 410 F.3d 1042 (8th Cir. 2005) (upholding
child support payments and employment requirement where underlying offense
was felon in possession of a firearm). More to the point here, courts have
rejected the argument that sex offender conditions are limited to cases where the
underlying offense is a sex offense. United States v. York, 357 F.3d 14, 20 (1st
Cir. 2004) (“[N]othing in [18 U.S.C. § 3583(d)] limits the special condition of
sex-offender treatment to defendants under prosecution for sex crimes.”); see also
United States v. Ross, 475 F.3d 871 (7th Cir. 2007) (affirming sex offender
mental health assessment and treatment where offense of conviction was making
false statements to the FBI); United States v. Smart, 472 F.3d 556 (8th Cir. 2006)
(affirming imposition of sex offender special conditions where defendant’s
underlying crime was felon in possession of a firearm). Indeed, the First Circuit
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upheld special conditions mandating sex offender treatment and prohibiting the
defendant from engaging in an occupation involving supervision of minors even
though the defendant, who was convicted of credit card fraud, had not been
convicted or accused of sexual misconduct, and “the record contain[ed] no direct
evidence that [he] ha[d] engaged in inappropriate conduct with minors.” United
States v. Prochner, 417 F.3d 54, 63 (1st Cir. 2005). The evidence there
supporting the condition was the defendant’s journal, which indicated that he
“may have had, or, at minimum, desired to have, sexual relationships with
adolescent males,” and a mental health evaluation suggesting that he had “a
potential problem with adolescent males.” Id. at 64.
While the sex offender conditions imposed on Mr. Hahn do not relate to the
nature and circumstances of his offense, they do relate to his history and
characteristics, given his recent conviction for a sex offense involving minor
children. The conditions are also reasonably related to the need “to protect the
public from further crimes of the defendant.” 18 U.S.C. § 3553(a)(2)(C).
Mr. Hahn’s argument focuses on the fact that the sex offender conditions
will not take effect until eighteen years after the state offense, upon his release
from prison. 12 We find this argument unpersuasive. Because conditions of
12
Under state law, Mr. Hahn is required to serve at least eighty-five percent
of his consecutive twelve and seven year state sentences. See O KLA . S TAT . tit. 21,
§ 13.1.
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supervised release always follow an individual’s release from prison, those who
serve lengthy terms of incarceration are necessarily subject to conditions of
release that were first imposed many years before. 13 Accepting Mr. Hahn’s
argument would require invalidating such provisions. The “temporal proximity”
cases upon which Mr. Hahn relies all involve situations where the conduct that
formed the basis for the special condition occurred many years prior to the
sentencing, which is a different matter altogether than the length of time between
sentencing and the defendant’s anticipated release from prison. See United States
v. Scott, 270 F.3d 632 (8th Cir. 2001) (vacating sex offender conditions where sex
offense was fifteen years old and instant offense involved unrelated conduct);
United States v. Kent, 209 F.3d 1073 (8th Cir. 2000) (vacating special condition
requiring mental health counseling where abuse occurred thirteen years before
hearing and instant offense involved unrelated conduct); see also United States v.
Carter, 463 F.3d 526 (6th Cir. 2006) (vacating special condition requiring
participation in sex offender treatment program where sex offense was seventeen
years old and recent stalking conviction not clearly sexual in nature). Temporal
proximity is not a problem in Mr. Hahn’s case: the underlying conduct that led to
the imposition of special sex offender conditions occurred just five weeks after he
13
Moreover, under 18 U.S.C. § 3583(e), the district court may modify the
conditions of supervised release “at any time prior to the expiration or termination
of the term of supervised release.” Nothing in this opinion precludes Mr. Hahn
from renewing his objection to the sex offender conditions at a later time.
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was terminated from BOK and three years before his federal sentencing. 14
Mr. Hahn points out that despite his being free on bond between his arrest
in 2004 and his conviction in state court in 2006, the government did not present
evidence of any sexually inappropriate behavior since 2004. He argues, “[o]nly if
it was shown that there was a problem at the time of sentencing could the
Conditions imposed by appropriate.” Aplt. Br. at 27 (emphasis in original).
While this statement is truer to the law than his more sweeping temporal
proximity argument, it nonetheless misses the mark. The very language of the
statute instructs the sentencing court to consider the defendant’s “history and
characteristics.” 18 U.S.C. § 3553(a)(1). It is not uncommon for sentencing to
occur several years after the problematic conduct apparently ceased, and courts
have not previously considered this a problem in the imposition of special
conditions. See York, 357 F.3d at 17-18, 21 (upholding sex offender conditions
based on prior convictions for indecent assault on minors, nine years and three
years before sentencing, respectively); United States v. Peterson, 248 F.3d 79, 84
(2d Cir. 2001) (holding four-year-old state conviction for sexual abuse provided
sufficient basis for mandatory sex offender therapy; vacating and remanding for
excessive delegation of discretion to probation officer). Here, where Mr. Hahn
14
Mr. Hahn was apprehended stealing from an ATM on January 27, 2004.
The charges in the state case result from conduct occurring between March 1 and
March 31, 2004.
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committed the state sex offense just weeks after his termination from BOK as a
result of the ATM thefts, the state offense is relevant to his history and
characteristics for the purpose of imposing special conditions.
Mr. Hahn also argues that the sex offender conditions are an improper
infringement on his liberty. Section 3583(d)’s second prong requires that the
condition “involves no greater deprivation of liberty than is reasonably necessary
for the purposes” of 18 U.S.C. § 3553(a)(2)(B)-(D). 18 U.S.C. § 3583(d)(2).
While Mr. Hahn names conditions three, four, five, six, seven, and eleven as
affecting his liberty, see note 9 supra, he does not specify why those conditions
are particularly problematic. Nor did Mr. Hahn direct his argument in his notice
of objection or at the sentencing hearing to specific conditions, other than to note
that the first condition (requiring sex offender registration) could be valid if
required under state law. Had Mr. Hahn objected to specific conditions, the
district court would have had the opportunity to address each condition
specifically and to tailor it as necessary.
As additional support for his claim that the sentencing court abused its
discretion, Mr. Hahn points to the failure of the state court to add sex offender
conditions and the fact that the PSR did not recommend them. Neither fact
affects our disposition here. Mr. Hahn will be in federal, not state, custody
during the period of supervised release, and it is the sentencing judge’s
responsibility to sentence the individual, not the offense. Likewise, we have
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previously upheld conditions that were not recommended by the PSR. See
Barajas, 331 F.3d at 1143; Bartsma, 198 F.3d at 1199.
We conclude that Mr. Hahn’s special sex offender conditions satisfy the
requirements of 18 U.S.C. § 3583(d). They are related to his history and
characteristics and the need to protect the public, and there is no evidence in the
record that they impose a greater deprivation of liberty than is reasonably
necessary to deter him from further criminal conduct or to protect the public.
AFFIRMED.
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