United States v. Perazza-Mercado

United States Court of Appeals
For the First Circuit

No. 07-1511

UNITED STATES OF AMERICA,

Appellee,

v.

JOSÉ ANGEL PERAZZA-MERCADO,

Defendant, Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. José A. Fusté, U.S. District Judge]

Before

Torruella, Lipez, and Howard,
Circuit Judges.

José L. Barreto-Rampolla, with whom Rivera, Barreto & Torres
Marcano was on brief, for appellant.
Mariana E. Bauzá-Almonte, Assistant United States Attorney,
with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, Chief
Appellate Division, were on brief, for appellee.

January 21, 2009
 LIPEZ, Circuit Judge. This case requires us to address

the validity of two conditions of supervised release imposed on a

defendant convicted of unlawful sexual contact with a minor. The

first condition prohibited the defendant from having any access to

the internet at home during the fifteen-year supervised release

period. The second condition prohibited the possession of

pornography generally.

I.

Pursuant to a plea agreement, appellant José A. Perazza-

Mercado pled guilty to one count of knowingly engaging in sexual

contact with a female under the age of twelve. The district court

levied a $7,500 fine and sentenced him to forty-six months of

incarceration, to be followed by fifteen years of supervised

release. As special conditions of supervised release, the court

imposed the total ban on appellant's use of the internet at his

home and the prohibition on the possession of pornography of any

kind.

As he did before the sentencing court, Perazza-Mercado

challenges the restriction on his internet use on the grounds that

it is not reasonably related to his offense and involves a greater

deprivation of his liberty than is reasonably necessary. We agree

with appellant that, under the circumstances of this case, the

district court's imposition of a total ban on home internet use was

an abuse of discretion. On remand, the district court should

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consider a narrower restriction on internet use, now feasible in

light of technological developments.

Perazza-Mercado also challenges, for the first time on

appeal, the condition forbidding the possession of pornography. He

relies on the alleged vagueness of the district court's reference

to pornography and the absence of a relationship between his

offense and pornographic materials. We conclude that the district

court committed plain error by failing to offer any explanation for

the total ban on pornography, in the absence of a record containing

any evidence regarding appellant's use of pornography, its

involvement in the offense at issue, or its relationship to the

likelihood of recidivism. On remand, the district court may

reconsider the appropriateness of a ban on possessing pornography

as a condition of supervised release. If it chooses to impose such

a prohibition, it must explain the basis for doing so and the

grounding of that prohibition in the record.

II.

A. Background

The following undisputed facts were stipulated as part of

the plea agreement. Perazza-Mercado was an Educational Technician

(ET) with the Department of Defense's Education and Administration

Antilles Intermediate School at the U.S. Army Base at Fort

Buchanan, Puerto Rico. In this capacity, he directly supervised

two or three special needs students at a time.

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 While working as an ET on or about April 18, 2006,

Perazza-Mercado knowingly engaged in sexual contact with a nine-

year-old female in his care. Under the classroom desk, Perazza-

Mercado touched the female student's genital area and took her hand

to touch his own genitalia. A male student observed this incident

when he dropped his pencil under the desk, and he reported the

conduct to another teacher. Both students were interviewed and

provided consistent narratives of the incident. In an interview

with a federal agent approximately one month later, Perazza-Mercado

admitted that he had engaged in the reported sexual conduct with

the female student.

The parties agreed that, at sentencing, the government

would recommend an offense level of nineteen,1 which, when combined

with defendant's criminal history category (I)2, yielded a

Guidelines sentencing range of thirty to thirty-seven months.

Perazza-Mercado waived his right to appeal the sentence as long as

he was sentenced in accordance with the terms and conditions of the

1
The guidelines range was calculated as follows: a base
offense level of sixteen pursuant to U.S.S.G. § 2A3.4(a)(2); a
four-level increase pursuant to U.S.S.G. § 2A3.4(b)(1) because the
victim was under twelve years old; a two-level increase under
U.S.S.G. § 2A3.4(b)(3) because the victim was under Perazza-
Mercado's care and supervision; and a three-level reduction for
acceptance of responsibility under U.S.S.G. § 3E1.1(a),(b).
2
This is the category for a defendant without a criminal
record.

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plea agreement.3 Pursuant to this plea agreement, Perazza-Mercado

pled guilty on August 8, 2006, to knowingly engaging in sexual

contact with a female under the age of twelve in violation of 18

U.S.C. § 2244(a)(1). His plea was accepted by the court.

B. Sentencing

At the sentencing hearing on February 15, 2007, the

district court relied on the recommendation in the pre-sentence

report (PSR), which differed from the parties' Guidelines

calculation to the extent that it recommended a two-level victim-

related adjustment because the victim was a "vulnerable victim."4

This enhancement increased the total offense level to twenty-one,

which carries a guidelines sentencing range of thirty-seven to

forty-six months for a defendant with no criminal history.

In addition to a description of the specific incident

which led to appellant's conviction, the PSR also contained

evidence of other instances of inappropriate conduct towards the

victim and other minor females at the school where he worked. In

interviews with the defendant's co-workers and supervisors, his

probation officer learned that Perazza-Mercado had previously been

3
The waiver clause states that "[t]he defendant hereby agrees
that if this Honorable Court accepts this agreement and sentences
him according to its terms and conditions, the defendant waives and
surrenders his right to appeal the judgment in the case."
4
If the defendant knew that the victim was a vulnerable
victim, a two-level adjustment pursuant to U.S.S.G. § 3A1.1(b)(1)
applies.

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reprimanded for touching the victim's knee (on another occasion)

and for bringing gifts to other minor female students. The

interviewees also related several of Perazza-Mercado's

inappropriate remarks about the victim and other female students,

and described how, on several occasions, Perazza-Mercado had

attempted to escort female students to the restroom, even though

this was not allowed. Finally, several of his co-workers mentioned

Perazza-Mercado's express preference for working with female

students rather than males.5

The district court sentenced Perazza-Mercado to forty-six

months in prison, the maximum sentence which he could have received

under the guidelines.6 The decision also provided for a $7,500

fine and a fifteen-year term of supervised release.

Perazza-Mercado's supervised release was subject to a

number of mandatory conditions. See generally U.S.S.G. § 5D1.3(a).

However, the court, in its discretion, also imposed a number of

other conditions of supervised release, including all of the

5
The record is not explicit about whether the court
considered these additional incidents in determining the
appropriate victim enhancement. At sentencing, however, the court
stated that "[i]t is reasonable to say that the defendant knew that
the victim, as well as those kids who are with her and under his
supervision, were vulnerable individuals; and, therefore, a two-
level increase is warranted under Guideline section
2A1.1(1)(b)(1)." (emphasis added).
6
Because Perazza-Mercado was not sentenced in accordance with
the plea agreement, the government concedes that the waiver of
appeal is inapplicable.

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standard conditions of supervision described in U.S.S.G. § 5D1.3(c)

and several special conditions, two of which are specifically

recommended for sex offenders by the Sentencing Guidelines. See

U.S.S.G. § 5D1.3(d)(7). Perazza-Mercado does not challenge the

special condition requiring him to participate in a treatment and

monitoring program for sex offenders pursuant to U.S.S.G. §

5D1.3(d)(7)(A); the condition that he submit to reasonable searches

of his person and property by his probation officer pursuant to

U.S.S.G. § 5D1.3(d)(7)(C); or the court's prohibitions on working

with minors and residing or loitering near places where children

would typically congregate.7 However, he does challenge two other

special conditions imposed by the trial court: one that prohibited

him from accessing the internet in his home, and another that

banned him from possessing any type of pornographic material.

At the sentencing hearing, Perazza-Mercado challenged the

court's "prohibition as to the computer at home," explaining that

7
At sentencing, the court described these limitations on
defendant's interactions with children as follows:

The defendant will also refrain from engaging in any
specified occupation, business, or profession bearing a
reasonable direct relationship or contact with the
supervision of minors, or engage in any such specified
occupation, business, or profession, in the same degree
and in the same context in which he was engaged in this
case. Specifically, he will not be allowed to work with
children, in other words . . . .

The defendant will not reside or loiter within 100
feet of school yards, play yards, arcades, or other
places primarily used by children under the age of 17.

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"we must not forget that Mr. Perazza is a married person, so -- and

his wife uses that as a work tool. Every day, more and more people

are using that as a work tool." The court responded, "That is a

prohibition. There are ways to deal with that. The wife has a

computer. The wife can get in contact with the Probation

Department, and they can password protect the computer."8 Perazza-

Mercado's counsel also noted, in the context of the internet ban,

that the police found no child pornography when they searched

appellant's home, including his computer. Perazza-Mercado did not

object to the pornography ban at sentencing.

On appeal, Perazza-Mercado raises two issues: (1) whether

the district court abused its discretion in banning his access to

the internet in his home, and (2) whether the district court

committed plain error by prohibiting him from possessing any kind

of pornography.

III.

Whether a court may impose a total ban on a defendant's

home internet use as a condition of supervised release is an issue

of first impression in this circuit. In this case, we address the

validity of such a condition only in a narrow set of circumstances:

where the defendant has no history of impermissible internet use

8
The impact of the restriction on Perazza-Mercado's wife was
not addressed by the parties in their briefs or at argument, and we
therefore do not consider it.

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and the internet was not an instrumentality of the offense of

conviction.

When a defendant objects to the imposition of a special

condition at the time of sentencing, we review the district court's

decision to impose the condition for abuse of discretion. United

States v. York, 357 F.3d 14, 19 (1st Cir. 2004). To assess the

validity of such conditions, we apply 18 U.S.C. § 3583(d) and

U.S.S.G § 5D1.3(b), which require that special conditions cause "no

greater deprivation of liberty than is reasonably necessary" to

achieve the goals of supervised release, 18 U.S.C. § 3583(d)(2),

and that the conditions be "reasonably related" both to these goals

and to the "nature and circumstances of the offense and the history

and characteristics of the defendant." 18 U.S.C. § 3583(d)(1); see

also 18 U.S.C. § 3553(a)(1).

The purposes of supervised release are the same as the

purposes of sentencing generally, which are set forth in 18 U.S.C.

§ 3553(a)(2):

(A) to reflect the seriousness of the offense,
to promote respect for the law, and to provide
just punishment for the offense;

(B) to afford adequate deterrence to criminal
conduct;

(C) to protect the public from further crimes
of the defendant; and

(D) to provide the defendant with needed
educational or vocational training, medical

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 care, or other correctional treatment in the
most effective manner.

See also U.S.S.G. § 5D1.3(b)(2). In order to determine the most

appropriate way to achieve these objectives in a particular case,

a court must consider the nature and circumstances of the offense

and the defendant's individual characteristics and prior conduct,

as required by 18 U.S.C. § 3553(a)(1).

Perazza-Mercado asserts that there was no relationship

between the internet and his offense, and that there is no evidence

that he has ever used the internet to view or download child

pornography or inappropriately communicate with minors. Therefore,

he argues, the internet restriction would not advance the aims of

deterrence or protecting the public from future criminal conduct.

See 18 U.S.C. § 3553(a)(2)(B) and (C). Moreover, he contends that

such a sweeping restriction on his internet access would

unnecessarily hinder his ability to engage in internet use

essential to his rehabilitation. For these reasons, he claims that

the home internet restriction is not reasonably related to his

personal characteristics or his offense (as required by 18 U.S.C.

§ 3583(d)(1)), and that it causes a greater deprivation of liberty

than necessary to carry out the goals of supervised release (see 18

U.S.C. § 3583(d)(2)).

Relying on language from United States v. Smith, 436 F.3d

307 (1st Cir. 2006), the government argues that if a challenged

condition is intended to advance one of the goals of supervised

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release, a restriction is not overbroad simply because there is no

offense-specific nexus. See Smith, 436 F.3d at 311. ("[T]he

critical test is not whether such an offense-specific nexus exists,

but rather, whether the challenged condition is sufficiently

related to one or more of the permissible goals of supervised

release." (quoting United States v. Brown, 235 F.3d 2, 6 (1st Cir.

2000)) (internal quotation marks omitted)). The government argues

that the internet condition, while perhaps not connected to

Perazza-Mercado's specific offense of conviction, is related to two

of the goals of supervised release: namely, protecting the public

from further crimes by the defendant and his rehabilitation.9 The

government correctly notes both that the Guidelines do not require

a direct relationship between the offense and the condition, and

also that we must focus on whether the condition is "reasonably

related" to one or more of the goals of supervised release.

However, the government does not fully acknowledge that the

Guidelines also require us to consider whether the challenged

condition is reasonably related to the "history and characteristics

of the defendant" and whether the condition deprives Perazza-

9
In invoking those goals of supervised release, the
government cites United States v. Johnson, 446 F.3d 272, 281 (2d
Cir. 2006), for the proposition that a restriction on internet use
will keep an offender away from an instrumentality of his offenses.
As we have explained, there is no evidence in this case that the
internet was in any way an instrumentality of Perazza-Mercado's
offense.

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Mercado of more liberty than is reasonably necessary to achieve the

goals that the statute describes. 18 U.S.C. § 3583(d).

With these requirements in mind, our sister circuits have

upheld broad restrictions on internet access as a condition of

supervised release where (1) the defendant used the internet in the

underlying offense; (2) the defendant had a history of improperly

using the internet to engage in illegal conduct; or (3) particular

and identifiable characteristics of the defendant suggested that

such a restriction was warranted. See, e.g., United States v.

Boston, 494 F.3d 660, 668 (8th Cir. 2007) (finding that

"prohibiting [the defendant] from accessing or possessing a

computer without written approval of his probation officer[] did

not constitute an abuse of discretion because it was not absolute"

and because of evidence that defendant had used computers to print

out images of child pornography); United States v. Johnson, 446

F.3d 272, 282-83 (2d Cir. 2006) (upholding an absolute ban on

internet use where defendant's sophisticated computer skills would

enable him to circumvent monitoring software, allowing him to

continue the offense of having sexually explicit conversations with

minors and luring minors into having sex with him); United States

v. Paul, 274 F.3d 155, 169 (5th Cir. 2001) (affirming total ban on

defendant's internet and computer use where he had previously used

the internet to "encourage exploitation of children by seeking out"

other pedophiles and advising them on how to locate potential child

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victims); United States v. Alvarez, 478 F.3d 864, 868 (8th Cir.

2007) (affirming a condition prohibiting residential internet

access where, due to the defendant's characteristics, "severe

restrictions may [have been] the only way to prevent [defendant]

from accessing prohibited material" due to a documented "problem

with self control").

Conversely, in cases where there is an insufficient nexus

with a defendant's conduct or characteristics, courts have vacated

supervised release conditions restricting internet access. For

example, in United States v. Freeman, 316 F.3d 386 (3d Cir. 2003),

"there [was] nothing in t[he] record to suggest that [defendant]

ha[d] used the internet to contact young children" or solicit

inappropriate sexual contact. Id. at 392. Accordingly, the court

found that a restriction forbidding defendant from owning a

computer or accessing the internet without the approval of his

probation officer was "overly broad." Id.10

The reluctance of many of our sister circuits to uphold

a ban on internet use unless the internet was integral to the

offense of conviction and/or the defendant's history of misconduct

reflects an awareness that supervised release is supposed to

10
Other circuit court decisions have gone even further and
suggested that severe restrictions on a defendant's internet access
are invalid even if the defendant had previously used the internet
for certain kinds of illegal activity. See, e.g., United States v.
Sofsky, 287 F.3d 122, 126-27 (2d Cir. 2002); United States v.
Crume, 422 F.3d 728, 733 (8th Cir. 2005); United States v. Holm,
326 F.3d 872, 878 (7th Cir. 2003).

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advance the rehabilitation of the defendant. "[T]he ultimate

purpose of supervised release is its eventual end and the

offender's return to society." Frank E. Correll, Jr., "You Fall

into Scylla in Seeking to Avoid Charybdis": The Second Circuit's

Pragmatic Approach to Supervised Release for Sex Offenders, 49 Wm.

& Mary L. Rev. 681, 703-04 (2007). Therefore, "the value of a

release program as a rehabilitative tool mirrors the extent to

which the conditions of supervised release simulate life after the

program's end." Id. at 703. Unduly harsh conditions would,

instead of "facilitat[ing] an offender's transition back into the

every day life of the community," be a "significant barrier to a

full reentry into society." Id. at 703-04.

Not surprisingly, then, the Guidelines mandate that a

sentencing court consider the implications of any special condition

of supervised release on a defendant's potential rehabilitation.

Specifically, the Guidelines insist that supervised release must

"provide the defendant with needed educational or vocational

training . . . and other correctional treatment in the most

effective manner." 18 U.S.C. § 3553(b)(1)(D).

We recognize that the district court's prohibition on any

access to the internet at home is not a total ban on appellant's use

of the internet.11 Thus, under the condition imposed by the

11
Although the district court did not explain its basis for
differentiating between defendant's use of the internet inside and
outside the home, it may have believed that he would be less likely

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district court, Perazza-Mercado could use the internet in a library,

a coffee shop, or at the home of a friend or neighbor. Most

importantly, the condition, as written, would permit Perazza-Mercado

to use the internet in an office setting, thereby enabling him to

take a job that requires internet use. Certainly, the freedom to

use the internet in a professional environment might lessen the

negative impact the condition would otherwise have on Perazza-

Mercado's educational and vocational pursuits. However, if the

district court had concluded that appellant's internet use would

facilitate his unlawful sexual contact with a minor, allowing him

unlimited access outside the home seems inconsistent with that

concern. In other words, the district court's failure to impose any

restriction on Perazza-Mercado's non-residential internet usage

undermines the rationale for ordering a complete ban on his use of

the internet at home.

Moreover, we must be cognizant of the importance of the

internet in today's world. An undue restriction on internet use

"renders modern life -- in which, for example, the government

strongly encourages taxpayers to file their returns electronically,

where more and more commerce is conducted on-line, and where vast

to engage in illegal conduct in a public place than from the
privacy of his own residence. If that was indeed the court's
rationale, we think that this distinction does not accurately
reflect all of the possibilities for internet use outside of the
home which would duplicate many of the privacy protections of home
use.

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amounts of government information are communicated via website --

exceptionally difficult." United States v. Holm, 326 F.3d 872, 878

(7th Cir. 2003); see also United States v. Voelker, 489 F.3d 139,

145 (3d Cir. 2007) ("The ubiquitous presence of the internet and the

all-encompassing nature of the information it contains are too

obvious to require extensive citation or discussion."); United

States v. Peterson, 248 F.3d 79, 83 (2d Cir. 2001) ("Computers and

Internet access have become virtually indispensable in the modern

world of communications and information gathering."). In addition,

there are many legal activities on the internet that are not easily

conducted in public. For example, online banking or managing

medical records are potentially important activities that one might

not wish to conduct in public because of a legitimate interest in

keeping the information private.

In light of the "ubiquitous presence" of the internet and

the "all-encompassing nature of the information it contains,"

Voelker, 489 F.3d at 145, a total ban on Perazza-Mercado's internet

use at home seems inconsistent with the vocational and educational

goals of supervised release. Although appellant's actions were

indisputably abhorrent, the restriction on his internet use must

still meet the statutory requirements. Prohibiting Perazza-Mercado

from logging onto the internet from home, without a substantial

justification for doing so, would be an excessive deprivation of

liberty if it prevented him from engaging in the kind of educational

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and vocational training required for the transition from his prior

employment as a teacher into a new and appropriate career. For

example, if he is occupied during the day interviewing for jobs, he

may need to look for new job postings early in the morning or late

at night, when he may not be able to easily access the internet from

public spaces.

Our concerns about the unqualified prohibition of home

internet use are even more salient because the conditions of

Perazza-Mercado's supervised release will only take effect in a few

years, after the completion of his prison sentence. The importance

of the internet in modern life has steadily increased over time, and

we have no reason to believe that this trend will end. Therefore,

given the nature of the offense and the characteristics of the

defendant, we conclude that requiring Perazza-Mercado to leave his

home in order to take advantage of many of the vocational and

educational opportunities offered by the internet is a greater

deprivation of his liberty than is reasonably necessary for his

rehabilitation.

Nevertheless, our concern regarding a categorical

residential internet ban does not imply that Perazza-Mercado is

entitled to unlimited internet access, particularly if a "relatively

narrowly-tailored condition" would "readily accomplish[] the goal

of restricting use of the Internet and more delicately balance[] the

protection of the public with the goals of sentencing." United

-17-
States v. Zinn, 321 F.3d 1084, 1093 (11th Cir. 2003) (quoting United

States v. Walser, 275 F. 3d 981, 988 (10th Cir. 2001)). See also

Brown, 235 F.3d at 4 ("[T]he [federal sentencing] guidelines

contemplate . . . that the sentencing court will tailor supervised

release conditions to fit the circumstances of the offense and the

characteristics of the offender.") Although the internet did not

play a role in the sexual misconduct which was the basis for his

conviction, we must also consider Perazza-Mercado's documented

propensity for inappropriate behavior towards young girls. The

personal characteristics of the defendant, even though they do not

reflect any history of computer misuse, could justify a targeted

limitation on internet use involving certain kinds of chat rooms or

any sites involving children, especially in light of research

suggesting that convicted sex offenders are likely to reoffend. See

Roe v. Marcotte, 193 F.3d 72, 82 (2d Cir. 1999) (noting that studies

indicated a high rate of recidivism among sexual offenders).12

Because of this concern, and the nature of his prior

conduct, other conditions of Perazza-Mercado's supervised release

forbid him from working with children in a professional capacity and

residing or loitering near areas which are frequented by groups of

children. See supra note 7. We can imagine, and modern technology

permits, an internet prohibition which would essentially replicate

these real-world limitations. As many of our sister circuits have

12
See also McKune v. Lile, 536 U.S. 24, 33 (2002).

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recognized, advances in technology offer courts the tools and

flexibility to "fashion precise restrictions" that would protect the

public as contemplated by § 3553 "and at the same time reflect the

realities of [defendant]'s rehabilitation prospects." Holm, 326

F.3d at 879.13 See, e.g., United States v. White, 244 F.3d 1199,

1206 (10th Cir. 2001) (describing technologies which would limit

defendant's "use of the Internet to obtain child pornography or

other sexually explicit behavior").

In particular, the Second Circuit has examined in some

detail the various technologies available to monitor the computer

usage of sex offenders. See United States v. Lifshitz, 369 F.3d

173, 191-93 (2d Cir. 2004). After a "brief survey of methods of

monitoring," the court noted that "even the varieties of products

and techniques currently available diverge vastly in their breadth,

and in their implications for computer users' privacy." Id. at 191.

For example, the court described two axes along which to distinguish

monitoring technologies. While some software is designed to be

installed on an individual's personal computer, other monitoring

methods rely on information about the offender's internet use which

is obtained from his Internet Service Provider (ISP). Id. Second,

the Lifshitz court differentiated between software which focused on

13
See generally Correll, Jr., supra, pp. 682-702; Dane C.
Miller et al., Conditions of Supervision that Limit an Offender's
Access to Computers and Internet Services: Recent Cases and
Emerging Technology, 42 No. 4 Crim. L. Bull. 3 (July-Aug. 2006).

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specific types of unauthorized materials, and other programs which

allowed a probation officer to monitor all of the user's online

activities. Id. Although Lifshitz arose in the context of a

probation condition, the analysis that a district court would have

to undertake to arrive at a valid condition of supervised release

is substantially similar. Additionally, an emerging body of

literature provides helpful guidance to sentencing judges as to the

features of available technology and the principles that a court

should consider in selecting among them. See, e.g., Miller, supra

note 13; Stephen Brake & Jim Tanner, Determining The Need for

Internet Monitoring of Sex Offenders, available at

http://www.kbsolutions.com/MonitoringNeed.pdf (last visited Nov. 25,

2008); Jim Tanner, Rethinking Sex Computer Management of Sex

Offenders Under Community Supervision,

http://www.kbsolutions.com/rcm.pdf (2007); Brian K. Payne & Matthew

DeMichele, Warning: Sex Offenders Need to be Supervised in the

Community, 72 Federal Probation 37 (Jun. 2008). Therefore, we will

remand to the district court so that, in light of the variety of

technological options at its disposal, it may devise an appropriate

restriction on Perazza-Mercado's internet use. Such an approach

reconciles our concern that a convicted sex offender could use the

internet to continue a pattern of inappropriate behavior towards

minors with the potential for legitimate uses of the internet that

might be crucial to that individual's rehabilitation.

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 IV.

Perazza-Mercado also contests the condition of supervised

release that prohibits him from possessing pornographic materials.

This challenge presents another issue of first impression in our

circuit. We have yet to consider whether a ban on pornographic

material as a condition of supervised release for an individual

convicted of sexual contact with a minor constitutes error when

there is no evidence that possession of such material has any

relationship to the offense of conviction and there is no evidence

in the record that the appellant previously possessed such

materials.

At Perazza-Mercado's sentencing hearing, the district

court stated that "[i]f he is ever found to be in possession of any

kind of pornographic material, that will be an automatic violation

of his terms of supervision." Neither the prosecutor nor the

probation officer requested this specific condition. The PSR said

nothing about it. Perazza-Mercado concedes that we must review this

claim for plain error because he did not object to this condition

at sentencing.14 York, 357 F.3d at 19. To establish plain error,

14
Perazza-Mercado makes a passing reference in his brief to
the absence of advance notice that the court was contemplating a
ban on pornography. In York, we suggested that if a defendant
could not have reasonably anticipated the special conditions
imposed by the court, we may review a forfeited objection for abuse
of discretion rather than plain error. 357 F.3d at 19. We need
not consider this issue, however, because the appellant concedes
that plain error applies.

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Perazza-Mercado must show that "there is (1) an error (2) that is

plain, and that the error (3) affects substantial rights and (4)

seriously impairs the fairness, integrity, or public reputation of

judicial proceedings." United States v. Prochner, 417 F.3d 54, 59

(1st Cir. 2005).

Perazza-Mercado argues that this condition is

impermissible because it (1) restricts his ability to possess

"perfectly legal adult pornography," (2) restricts his liberty

interest more than reasonably necessary in light of the goals of

supervised release, and (3) does not provide fair warning as to what

constitutes pornography due to the term's inherent ambiguity. To

evaluate these arguments, it would have been helpful if the district

court had explained the basis for its prohibition on the possession

of pornography. Yet the district court offered no explanation for

this condition. "There is no question that a district court is

required to provide a reasoned and case-specific explanation for the

sentence it imposes." United States v. Gilman, 478 F.3d 440, 446

(1st Cir. 2007). Such an explanation enables appellate review.

Id.; see also United States v. Jimenez-Beltre, 440 F.3d 514, 519

(1st Cir. 2006) (en banc). Accordingly, "courts of appeals have

consistently required district courts to set forth factual findings

to justify special probation conditions." United States v. Warren,

186 F.3d 358, 366 (3d Cir. 1999).

-22-
 However, even in the absence of an explanation from the

court, "a court's reasoning can often be inferred" after an

examination of the record. Jimenez-Beltre, 440 F.3d at 519. While

we "have on occasion gone to significant lengths in inferring the

reasoning behind, and thus in affirming, some less-than-explicit

explanations by district courts[,] . . . there are limits" to our

willingness to supply our own justification for a particular

sentence. Gilman, 478 F. 3d at 446. A trial court's "decision to

impose [a] challenged condition must have adequate evidentiary

support in the record." York, 357 F.3d at 20; see also United

States v. Scherrer, 444 F.3d 91, 95-96 (1st Cir. 2006) (en banc)

(remanding to allow sentencing judge to strike several conditions

of supervised release where "the need for those conditions [was]

unsupported by the record"); United States v. Roy, 438 F.3d 140, 144

(1st Cir. 2006) (stating that conditions of supervised release must

have "adequate evidentiary support in the record"); Brown, 235 F.3d

at 6 ("min[ing]" the record "to determine whether the sentencing

court had a reasonable basis" for the imposition of a condition of

supervised release, and finding a "meaningful connection between the

condition and the appellant's criminal history"). "A condition with

no basis in the record or with only the most tenuous basis, will

inevitably violate 3585(d)(2)'s command that such conditions involve

no greater deprivation of liberty than is reasonably necessary."

United States v. Pruden, 398 F.3d 241, 249 (3d Cir. 2005) (internal

-23-
quotation marks omitted). Thus, where we are unable, through our

own examination of the record, to discern the court's reasoning,

"'it is incumbent upon us to vacate, though not necessarily to

reverse.'" Gilman, 478 F.3d at 446-47 (quoting United States v.

Feliz, 453 F.3d 33, 36 (1st Cir. 2006)); see also United States v.

Rhone, 535 F.3d 812 (8th Cir. 2008) (vacating and remanding for

resentencing where district court failed to adequately explain and

record did not support condition of supervised release requiring

defendant to register as a sexual offender); Voelker, 489 F.3d at

155 (remanding for resentencing because of district court's failure

to explain condition prohibiting defendant from possessing sexually

explicit materials); United States v. Wallace, 461 F.3d 15, 43-45

(1st Cir. 2006) (same with respect to court's failure to explain

reasons for departing from sentencing guidelines).

In this case, there is no evidence in the record that

justifies the ban on Perazza-Mercado's possession of all forms of

pornography. There was no suggestion in the PSR or at sentencing

that appellant had abused or even possessed pornography in the past,

much less that it contributed to his offense or would be likely to

do so in the future.15 We recognize that Perazza-Mercado's pattern

15
To the contrary, as part of his objections to the PSR,
appellant submitted the report of Dr. Jose R. Pando, a clinical
psychologist. Ironically, this evaluation contained the only
mention of pornographic material in the entire record. Perazza-
Mercado had reported to Dr. Pando that "[d]uring his late
adolescence and college years some of his friends lent him some
adult movies, but he never developed a taste or any sort of habit

-24-
of illicit conduct toward young girls is cause for great concern,

and, as we have explained, it certainly justifies some restriction

on his internet access, which he could otherwise abuse at the

expense of the public safety and deterrent goals of supervised

release. In contrast, the record is devoid of any evidence

suggesting that a complete ban on Perazza-Mercado's possession of

pornography -- including legal material involving consenting adults

-- would serve the same purposes.16 If the district court believed

that there was some relationship between the defendant's possession

and use of adult pornography and the likelihood that he would engage

in sexual misconduct involving young girls, the court should have

explained the basis for that conclusion.

We emphasize that we are not, as a general matter,

foreclosing the imposition of similar conditions in cases where

pornography was not involved in the offense of conviction and there

is no documented history of the defendant viewing such material.17

for these kinds of activities." Certainly, the court was entitled
to make a judgment on the appropriate weight to give this report.
We mention it to show not only that the record is silent as to the
need for imposing the ban on the possession of pornography, but
also that the only piece of evidence that is directly on point
suggests that the prohibition might have been unnecessary.
16
Possession of child pornography is, of course, a crime.
See, e.g., 18 U.S.C. § 2252. Also, under the Guidelines, one of
the mandatory conditions of supervised release is a prohibition on
the defendant's commission of any further federal, state, or local
crimes. U.S.S.G. § 5D1.3(a)(1).
17
See, e.g., United States v. Mark, 425 F.3d 505, 510 (8th
Cir. 2005)(reserving judgment as to whether a particular condition

-25-
There may well be a reason to impose a pornography ban in such

circumstances. However, such a reason is not apparent from the

record before us, which simply does not support the conclusion that

the condition would promote the goals of supervised release without

effecting a greater deprivation of liberty than reasonably necessary

to achieve those goals.

The dissent sees the record differently. In fact, the

dissent sees no error at all, let alone plain error, in the trial

court's imposition of the total pornography ban, explicitly stating

that it would uphold the condition even under the abuse of

discretion standard of review. This is so because the dissent

concludes that the fact of conviction, in conjunction with Perazza-

Mercado's "pattern of illicit conduct" toward young girls, justifies

the ban. According to the dissent, the ban on Perazza-Mercado's

possession of adult pornography is necessary to prevent his future

criminal conduct against minors. In asserting this proposition, the

dissent makes the behavioral assumption that access to adult

pornography increases the likelihood that any individual convicted

of sexual misconduct with a minor would reoffend. Other than

asserting that this assumption is "rather obvious," the dissent

may be appropriate in other cases, but finding the record before it
to be "insufficiently developed to justify the condition, both with
respect to evidence concerning potential alternatives and an
explanation from the district court as to why less restrictive
alternatives are inadequate").

-26-
offers no support for it.18 Neither the probation officer nor the

18
In Voelker, 489 F.3d at 150, the court considered and
vacated a pornography ban similar to the one at issue here. The
court acknowledged that a sentencing judge could, "perfectly
consonant with the Constitution, restrict [an offender's] access to
sexually oriented materials." Id. (quotation marks and citation
omitted). However, the restriction must have a nexus "to the goals
of supervised release," and the Voelker court found no such nexus
in the case before it. Id. The court explained:

We assume the [district] court believed a lifetime ban on
possessing "sexually explicit materials" would further
his rehabilitation and reduce the chances of recidivism.
. . . However, nothing on this record suggests that
sexually explicit material involving only adults
contributed in any way to Voelker's offense, nor is there
any reason to believe that viewing such material would
cause Voelker to reoffend.

Id. at 151 (citation omitted). On this record, the same is true
here. It is curious, therefore, that the dissent cites Voelker for
the proposition that the fact of conviction alone justifies the
pornography ban. While the Voelker court did observe that "the
conduct the defendant admitted to offers some support for this
restriction," id. at 150, it did so in the context of striking down
the condition, and in a case where it would have been far more
reasonable to infer a link between the defendant's possession of
pornography and the exploitation of minors. The court described
Voelker's conduct as follows:

During [an] online communication, Voelker . . . briefly
exposed the buttocks of his three year-old daughter over
a webcam that was connected to his computer.
When the FBI subsequently confronted Voelker with
this information, he acknowledged downloading child
pornography onto his computer, and he directed agents to
computer discs where the files were stored. He also
admitted to partially exposing his daughter over his
webcam, but he insisted that statements he had made about
sexual contact with minors or offering his daughter for
sex were merely gratuitous statements in the nature of
“role-playing.” He claimed that he never intended to
follow through on any of those statements but admitted
that he engaged in such online “role-playing” on a daily
basis. Agents subsequently searched Voelker's home
pursuant to a warrant and seized computer files

-27-
prosecutor in this case made such a behavioral claim, and the trial

judge did not invoke any experience with prior sentences to support

the ban on adult pornography.

The logic of the dissent is that the ban on the

possession of adult pornography should be a condition of supervised

release in every case where a defendant is convicted of a sexual

offense with a minor. The Sentencing Commission creates such

generally applicable conditions of supervised release, not appellate

judges. The Commission has not promulgated such a condition,

despite the Guidelines' intricate and detailed framework of

conditions of supervised release. Guidelines § 5D1.3(a) sets out

the mandatory conditions of supervised release for all offenders,

which include prohibitions on the commission of further crimes and

the use or possession of controlled substances, a requirement that

the defendant submit a DNA sample and, for certain sexual offenders,

a requirement that they register as sexual offenders with the state

in which they reside.19 There are also certain "standard"

conditions of supervised release that are recommended for all cases,

containing child pornography.

Id. at 142-43.
19
Subsection (b) of that Guideline sets forth the general
requirements, described at length supra, that any other conditions
must be reasonably related to the nature and circumstances of the
offense or the history and characteristics of the defendant and the
goals of supervised release and that they involve no greater
deprivation of liberty than is reasonably necessary to effectuate
those goals.

-28-
many of which are explicitly characterized as "expansions of the

conditions required by statute," U.S.S.G. § 5D1.3(c), and all of

which the district court imposed in this case. Next, there are

certain "special" conditions recommended in specific circumstances,

including, for individuals convicted of sexual offenses against

minors (as defined by Application Note 1 to U.S.S.G. § 5D1.2), a

condition "requiring the defendant to participate in a program

approved by the United States Probation Office for the treatment and

monitoring of sex offenders," a condition "limiting the use of a

computer or an interactive computer service in cases in which the

defendant used such items," and a condition requiring the defendant

to submit to certain searches by law enforcement officers. U.S.S.G.

§ 5D1.3(d)(7)(A)-(C).20

Despite the Guidelines' specificity in prescribing or

suggesting conditions for particular cases (including subsection (e)

of § 5D1.3, which lists "special conditions" that "may be

appropriate on a case-by-case basis"), the Guidelines do not

recognize the connection between the possession of adult pornography

20
As we have explained, the district court followed U.S.S.G.
§ 5D1.3(d)(7)(A) and (C) by requiring Perazza-Mercado to
participate in a treatment and monitoring program for sexual
offenders and to submit to searches of his person and property by
his probation officer. Subsection (B) of § 5D1.3(d)(7) suggests "a
condition limiting the use of a computer or an interactive computer
service in cases in which the defendant used such items" (emphasis
added). As we described in Part III, neither computers nor the
internet played a role in Perazza-Mercado's offense. Therefore,
the internet restriction imposed by the trial court did not draw
its rationale from § 5D1.3(d)(7)(B).

-29-
and the sexual abuse of minors that the dissent claims is self-

evident. Under these circumstances, in the absence of an

explanation from the district court, or any record evidence

supporting its decision, an appellate tribunal should not assume the

role of the Sentencing Commission in order to justify a district

court's decision.

Here, the imposition of the ban on the possession of

adult pornography as a condition of supervised release, without any

explanation and without any apparent basis in the record for the

condition, constitutes an error that is plain. Nevertheless, even

when defendants are able to demonstrate an error of sufficient

magnitude to satisfy the first two prongs of plain error review, the

plain error standard requires that they must still establish

prejudice —— the third prong of plain error review. This prong

requires a showing that the error was "prejudicial in the sense that

'[i]t must have affected the outcome of the district court

proceedings.'" Gilman, 478 F.3d at 447 (quoting United States v.

Olano, 507 U.S. 725, 734 (1993)). "In the sentencing context that

translates to a requirement that a defendant must paint a picture

that illuminates a reasonable probability that, but for the error,

the district court would have imposed a different, more favorable

sentence." Id. (internal quotation marks omitted). Given the lack

of any explanation for the imposition of the prohibition on the

possession of pornography, and given the absence of any evidence in

-30-
the record that permits us to infer the basis for the ban, there 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. See Wallace, 461 F.3d at 44 (noting

that if the sentencing court were required to supply an adequate

explanation for its actions, it "might (although by no means must)

calculate a sentence upon remand different than the precise sentence

it chose through its initial, erroneous . . . analysis").

With respect to the fourth prong of plain error review,

the court imposed an absolute prohibition on the possession of

pornography. It did so without explanation and without any apparent

grounding in the record. There is a reasonable probability that the

court might not have imposed this prohibition if it had not

committed the plain procedural error that underlies it. We cannot

endorse the summary imposition of such a significant prohibition

without impairing the "fairness, integrity, or public reputation of

the judicial proceedings." Wallace, 461 F.3d at 49 (quotation marks

and citation omitted).

Therefore, we must also vacate the special condition

prohibiting Perazza-Mercado from possessing any form of pornography.

The district court may revisit this issue at the resentencing of the

defendant. If it chooses to reimpose such a condition, it must

explain the basis for doing so and its grounding in the record. The

-31-
resentencing shall be limited to a re-examination of the conditions

of supervised release that underlie this appeal.

Vacated and remanded for resentencing.

–Dissenting opinion follows-

-32-
 HOWARD, Circuit Judge, dissenting in part. I agree that

the supervised release condition banning all home internet use is

too broad. I dissent in part, however, because I believe the second

supervised release condition -- prohibiting Perazza-Mercado from

possessing "pornographic materials" -- survives plain error review.

In vacating the district court's ban on pornography, the

majority relies primarily on the ground that the condition lacks

support in the evidentiary record because "[there is] no suggestion

in the PSR or at sentencing that appellant had abused or even

possessed pornography in the past, much less that it contributed to

his offense or would be likely to do so in the future."

The majority thus imposes a requirement that a supervised

release condition must bear a more precise connection to a

defendant's past than our cases demand. Rather, as we have provided

many times before, a supervised release condition need only be

"reasonably" related to one of the four factors set forward in 18

U.S.C. § 3553(a). 18 U.S.C. § 3583(d)(1); United States v.

Prochner, 417 F.3d 54, 63 (1st Cir. 2005); United States v. York,

357 F.3d 14, 17 (1st Cir. 2004) (same); see also United States v.

Smith, 436 F.3d 307, 311 (1st Cir. 2008) ("[T]he critical test is

not whether [] an offense-specific nexus exists but, rather,

'whether the challenged condition is sufficiently related to one or

more [of the four] permissible goals of supervised release.'")

(citing United States v. Brown, 235 F.3d 2, 6 (1st Cir. 2000));

-33-
United States v. Bee, 162 F.3d 1232, 1235 (9th Cir. 1998) (upholding

ban on sexually stimulating material where defendant was convicted

of sexually abusing a minor).

A ban on pornographic material is reasonably related to

at least two goals of supervised release. Perazza-Mercado pled

guilty to sexually abusing a minor. Accordingly, preventing him

from accessing pornographic materials is reasonably related to both

the goal of deterring future criminal conduct against minors and the

goal of protecting the public against further crimes involving the

exploitation of minors. See § 3553 (a)(2)(B), (C). It was

reasonable for the sentencing judge to think, and in my view the

inference is rather obvious, that the general ban against

pornography will provide a buffer against Perazza-Mercado acquiring

child pornography. Furthermore, and again this hardly needed to be

stated, allowing unfettered access to adult pornography could lead

Perazza-Mercado –- who has already evinced a predilection towards

exploiting minors sexually -- to places where opportunities may

exist to commit other crimes against minors.21

As the condition is reasonably related to the goals of

supervised release, I am left with the majority's apparent position

that the fact of conviction in this case cannot constitute

evidentiary support for the ban on pornographic material. I

disagree with that position; it obligates us to ignore what is

21
The majority mischaracterizes these opportunity concerns as
based on "behavioral assumptions."

-34-
perhaps the most critical component of a defendant's criminal

history when reviewing supervised release conditions. In

determining whether the imposed conditions are justified, we are not

required to turn a blind eye to the fact that Perazza-Mercado

admitted to sexually abusing a minor. United States v. Voelker, 489

F.3d 139, 150 (3d Cir. 2007) ("Although the court did not provide

us with an explanation for this condition [], the conduct the

defendant admitted to offers some support for this restriction.");

see United States v. Brogdon, 503 F.3d 555, 565 (6th Cir. 2007)

(relying on defendant's previous convictions to support the

condition imposed); see also United States v. Jimenez-Beltre, 440

F.3d 514, 519 (1st Cir. 2006) (establishing that a "court's

reasoning can often be inferred" by examining the record).

Aside from our disagreement about the significance of the

fact of conviction, there is additional evidentiary support for the

supervised release condition in this case. As part of his plea

agreement, Perazza-Mercado admitted to past behavior which the

majority acknowledges exemplifies a "pattern of illicit conduct

toward young girls." Even were we exercising an abuse of discretion

standard of review, this evidence, in conjunction with the fact of

conviction, justifies the supervised release condition at issue

here. Therefore, I cannot agree that, on plain error review,

allowing the ban on pornographic material to stand would seriously

impugn the "fairness, integrity, or public reputation of judicial

-35-
proceedings." See United States v. Torres, 541 F.3d 48, 53 (1st

Cir. 2008).

The majority criticizes my approach as mandating a ban on

the possession of adult pornography in every case where a defendant

is convicted of a sexual offense with a minor. The criticism is

misplaced. The Sentencing Guidelines, in § 5D1.3(a), establish

mandatory conditions of supervised release. Other conditions, such

as the one imposed here, are not mandatory but are permitted if

justified. 18 U.S.C. § 3583(d); U.S.S.G. § 5D1.3(b). Such

conditions of supervised release may be imposed in one case, without

being required in all similar cases, even where there has been a

conviction for sexually abusing a minor and a "pattern of illicit

conduct toward young girls." It is the province of a sentencing

judge, who is closest to the case, to determine appropriate

supervised release conditions. Our task here is to review whether

the district court committed plain error in imposing the condition.

In concluding that the district court did not commit plain error in

imposing the additional condition as reasonably necessary, we would

in no way be determining that the condition must be imposed in every

similar case.22

22
Were the majority's criticism justified, it would appear to
apply with equal force to our conclusion that a targeted limitation
on internet use would be acceptable. We say that use of the
internet may be restricted, even though "the internet did not play
a role in the sexual misconduct which was the basis for [the]
conviction." This is so because "we must also consider Perazza-
Mercado's documented propensity for inappropriate behavior towards
young girls" and research suggests "that convicted sex offenders

-36-
 That said, I am uneasy about the sentencing court's use

of the undefined word "pornography." The court prohibited the

defendant from acquiring "pornographic material," but did not

elaborate on the extent of the condition's reach. Nevertheless, in

light of the lack of case law in this circuit, and the generic bans

on pornography upheld in cases like United States v. Bee, 162 F.3d

1232 (9th Cir. 1998)23 and United States v. Boston, 494 F.3d 660

(8th Cir. 2007),24 I cannot say the district court plainly erred in

imposing such a condition. See United States v. Griffin, 524 F.3d

71, 77 (1st Cir. 2008) (recognizing that an error is "plain" if it

is "obvious and clear under current law"); see also United States

v. Gallo, 20 F.3d 7, 12 (1st Cir. 1993) (noting that conditions of

conditional release "may afford fair warning even if they are not

are likely to reoffend." Prohibiting access to internet
pornography sites and other forms of pornography provides a buffer
against access to child pornography, questionable chat rooms and
other avenues to illegality. Finding such a condition supportable
as "reasonably necessary" in this case is no more of an across-the-
board mandate than is a targeted internet limitation.
23
The condition in Bee provided: "[The defendant shall] not
possess any sexually stimulating or sexually oriented material as
deemed inappropriate by [his] probation officer and/or treatment
staff, or patronize any place where such material or entertainment
is available." Id. at 1234.
24
The condition in Boston provided: "[The defendant] shall
not view or possess any form of pornography, sexually stimulating
or sexually oriented material including books, videos, magazines,
cut-outs or pornography of any kind as deemed inappropriate by the
probation officer and/or treatment staff. [The defendant] shall
not enter any location where pornography or erotica are the primary
products for purchase. [The defendant] shall not any location
where the primary function is to provide adult entertainment." Id.
at 667-68.

-37-
precise to the point of pedantry" and "can be written -- and must

be read -- in a commonsense way").

I would be inclined to address this vagueness concern by

imposing a limiting construction on the district court's condition.

See United States v. Schave, 186 F.3d 839, 843-44 (7th Cir. 1999).

A ban on pornographic materials depicting "sexually explicit"

conduct, as defined in 18 U.S.C. § 2256(2)(A), would provide

adequate notice to Perazza-Mercado about the condition's grasp.

But, in light of the majority's remand of this condition, the

district court will have the opportunity to consider not only the

basis for the condition but also its scope.

-38-