United States v. Mike

FILED
United States Court of Appeals
Tenth Circuit

February 17, 2011
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 09-2230
v.
ADRIAN MIKE,

Defendant - Appellant.

Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 1:07-CR-01334-WJ-1)

Joseph W. Gandert, Assistant Federal Public Defender (Michael A. Keefe, Assistant
Federal Public Defender, on the briefs) Albuquerque, New Mexico, for Defendant-
Appellant.

David N. Williams, Assistant United States Attorney (Kenneth J. Gonzales, United States
Attorney, with him on the brief) Albuquerque, New Mexico, for Plaintiff-Appellee.

Before BRISCOE, Chief Circuit Judge, HOLLOWAY, Circuit Judge, and MELGREN,
District Judge.*

MELGREN, District Judge.

In 2009, Appellant Adrian Mike pled guilty to the charge of assault resulting in

*
The Honorable Eric F. Melgren, United States District Judge, District of
Kansas, sitting by designation.
serious bodily injury. Following his plea, the district court sentenced Mike to two years

of imprisonment and three years of supervised release. Because Mike had committed a

sex offense in 1997, the court imposed, in addition to the standard conditions of

supervised release, the district’s standard supervised release conditions for sex offenders,

as well as a number of special conditions of supervision. Mike objected to the imposition

of some of these conditions. The court overruled most of Mike’s objections and Mike

appeals that decision. We have jurisdiction under 28 U.S.C. § 1291, and AFFIRM in

part, REVERSE in part, and REMAND to the district court for further proceedings

consistent with this opinion.

I. BACKGROUND

On August 28, 2006, Mike assaulted a 74 year-old man in whose home he had

been drinking. The assault occurred after the victim returned home and discovered that

Mike and several of his relatives were drunk. According to Mike, the victim placed his

hands on Mike’s neck and ordered Mike to leave his home. In response, Mike shoved the

victim to the floor, which resulted in the victim sustaining a fractured pelvis, fractured

shoulder, and fractured wrist.

A grand jury returned an indictment against Mike, charging him with assault

resulting in serious bodily injury, in violation of 18 U.S.C. §§ 113(a)(6) and 1153. Mike

pled guilty to the indictment pursuant to the terms of a Rule 11(c)(1)(C) plea agreement

to a term of twenty-four months of imprisonment and three years of supervised release.

At sentencing, the court sentenced Mike to twenty-four months of imprisonment

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and three years of supervised release. In addition to the standard conditions of supervised

release, which include a condition requiring the defendant to inform third parties of his

criminal record, the court imposed the district’s standard sex offender conditions in light

of the fact that Mike had committed a sex offense in 1997. These include the following

conditions: (1) the defendant shall not possess any sexually explicit materials; (2) the

defendant shall submit to search of person, property, vehicles, business, computers, and

residence, to be conducted in a reasonable manner and at a reasonable time, for the

purpose of detecting sexually explicit materials; (3) the defendant shall immediately

undergo a psychosexual evaluation upon release and begin participating in sex offender

treatment, consistent with the recommendations of the psychosexual evaluation, and

furthermore, the defendant shall submit to clinical polygraph testing and any other

specific sex offender testing, as directed by the probation officer; and (4) the defendant

shall participate in a mental health program as directed by the probation officer which

may include taking prescribed medication.

In addition to the standard sex offender conditions, the court ordered that the

following special conditions be imposed: (1) the defendant must participate in a substance

abuse treatment program, which may include drug testing, outpatient counseling, or

residential placement; (2) the defendant may not engage in an occupation where he has

access to children without prior approval from his probation officer; (3) the defendant

must not have contact with children under the age of eighteen, and if such contact does

occur, the defendant must report it to the probation officer; (4) the defendant must

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participate in a mental health program, which may include outpatient counseling,

residential placement, or prescribed medication as approved by the probation officer; (5)

the defendant may not loiter within 100 feet of a place used primarily by children under

the age of eighteen; (6) the defendant may not volunteer for activities where he will be

supervising children or adults with mental or physical disabilities; and (7) the defendant

may not possess or use a computer or other related hardware without approval by the

probation officer.

Mike objected to the imposition of the standard sex offender conditions. Mike

contended that these conditions should not be imposed because they were not related to

the present offense and were not reasonably related to the goals of deterrence, public

protection, or rehabilitation. The court admitted that it had never faced the issue of

having to sentence a prior sex offender for a non-sex offender crime, and asked the parties

to brief the matter. The court indicated that it would refrain from filing judgment until

the issue was resolved.

In his brief to the court, Mike objected to the following six conditions: (1) the

condition mandating sex offender treatment and testing; (2) the condition that he have no

contact with children; (3) the condition prohibiting him from engaging in an occupation

with access to children; (4) the condition barring him from loitering in any place children

may be; (5) the condition limiting the types of activities he could volunteer for; and (6)

the condition declaring that he is not to possess or use a computer. The court overruled

Mike’s objections to the first five conditions, but sustained his objection to the last

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condition. The court held that the first five conditions were consistent with a sentence

that was sufficient, but not greater than necessary, to protect the public from further

crimes committed by Mike and to provide Mike with correctional treatment in the most

effective manner possible. The court reached these conclusions because both of Mike’s

crimes involved a violent assault; that psychosexual and psychological evaluations

performed on Mike in 2004 and 2008 revealed that Mike had serious problems with

substance abuse and poor impulse control; that Mike’s 1997 sexual offense was

particularly gruesome;1 and that Mike had failed to comply with the sex offender

registration requirements. The court determined that Mike could possess and use a

computer, but that any computer he possessed would be subject to monitoring by the

probation officer.

Accordingly, the conditions of Mike’s supervised release ordered by the court in

the judgment were the same as those initially announced, with two exceptions: first, there

was no condition stating that Mike could not possess or use a computer; second, there

were conditions setting forth how Mike’s computer use would be monitored (“the

computer monitoring conditions”): (1) the defendant consents to the probation officer

conducting periodic examinations of his computer; (2) the defendant consents to the

probation officer installing on his computer any software systems to monitor his computer

1
“The record shows that [Mike] had sexual intercourse with an unconscious
minor. He and two minors, acting at his direction, also sexually assaulted the victim with
foreign objects resulting in severe damage to her vaginal area. [Mike] then left the victim
unconscious overnight in an open field.” United States v. Mike, 1999 WL 100913, at *1
(10th Cir. Mar. 1, 1999) (unpublished).

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use and to warning others of the probation officer’s ability to place monitoring software

on his computer or any such computer he may have access to; (3) the defendant consents

to the probation officer placing tamper resistence tape over unused ports and sealing his

computer case; (4) the defendant consents to maintaining a current inventory of his

computer access, including, but not limited to, any bills pertaining to computer access,

and shall submit on a monthly basis any card receipts/bills, telephone bills used for

modem access, or any other records accrued in the use of a computer to the probation

officer; and (5) the defendant shall not make any changes to his computer services, user

identifications, or passwords without the prior approval of the probation officer.

II. STANDARD OF REVIEW

When the defendant objects to a special condition of supervised release at the time

it is announced, this Court reviews for abuse of discretion. See United States v. Hahn,

551 F.3d 977, 982 (10th Cir. 2008), cert. denied, 129 S. Ct. 1687 (2009). However, when

the defendant fails to object, we review for plain error. See United States v. Barajas, 331

F.3d 1141, 1145 (10th Cir. 2003). To establish plain error, the defendant must show: “(1)

error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects

the fairness, integrity, or public reputation of judicial proceedings.” United States v.

Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir. 2005) (en banc) (quotation omitted). “We

conduct this analysis less rigidly when reviewing a potential constitutional error.” United

States v. Dazey, 403 F.3d 1147, 1174 (10th Cir. 2005) (internal quotation marks omitted).

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 III. ANALYSIS

On appeal, Mike raises objections to the following conditions of release: (1) the

computer monitoring conditions; (2) the condition mandating sex offender treatment and

testing; (3) the condition stating that he is to have no contact with children; (4) the

condition prohibiting him from engaging in an occupation with access to children; (5) the

condition requiring third party notification; (6) the conditions commanding participation

in a mental health treatment program; (7) the condition ordering participation in a

substance abuse treatment program; and (8) the condition forbidding him from possessing

sexually explicit materials.

District courts have broad discretion to prescribe special conditions of release.

See, e.g., United States v. Hanrahan, 508 F.3d 962, 970 (10th Cir. 2007). However, this

discretion is not without limits. For instance, the conditions imposed “must satisfy the

three statutory requirements laid out in 18 U.S.C. § 3583(d).” See Hahn, 551 F.3d at 983.

First, they must be reasonably related to at least one of following: 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. See id. at

983-84; 18 U.S.C. § 3583(d)(1). Second, they must involve no greater deprivation of

liberty than is reasonably necessary to achieve the purpose of deterring criminal activity,

protecting the public, and promoting the defendant’s rehabilitation. See 18 U.S.C. §

3583(d)(2). Third, they must be consistent with any pertinent policy statements issued by

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the Sentencing Commission. See id. at § 3583(d)(3). In addition to the statutory

requirements, the conditions must also comport with the relevant constitutional

provisions. See, e.g., United States v. Huffman, 146 Fed. Appx. 939, 944 (10th Cir. 2005)

(unpublished) (Article III’s grant of authority over cases and controversies to the courts

limits the courts’ ability to delegate federal judicial power to non-Article III persons or

entities (citing United States v. Pruden, 398 F.3d 241, 250 (3d Cir. 2005))).

Before turning to the question of whether the challenged conditions meet the

standards set forth by the governing law, the Court addresses a ripeness argument raised

by the Government in both its briefing and oral argument. The Government contends that

this matter is not ripe for review for two reasons: first, Mike has not started serving the

terms of his supervised release; and second, Mike must first seek a modification of his

terms of supervised release from the sentencing court before he can file an appeal. Both

of the Government’s contentions are erroneous. Contrary to the Government’s assertion,

Mike has completed his term of imprisonment and is currently subject to enforcement of

the terms of his supervised release. Furthermore, as we stated in United States v. Smith,

606 F.3d 1270 (10th Cir. 2010), supervised release terms are directly appealable, despite

the fact that they are subject to later modification, because they “are part of the sentencing

court’s final orders.” 606 F.3d at 1283 n.4. Therefore, we reject the Government’s

ripeness argument.

The Computer Monitoring Conditions

Mike raises four challenges with regard to the computer monitoring conditions:

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first, he claims that the sentencing court erred by not making any particularized findings

or providing a generalized statement of its reasoning for imposing these conditions;

second, he argues that the conditions are not reasonably related to his history and

characteristics, the nature and circumstances of his offenses, or any of the sentencing

goals set forth in 18 U.S.C. § 3553(a)(2); third, he avers that the conditions are

impermissibly vague, as it is not clear whether they apply only to computers he owns or

also to computers owned by others; and fourth, he contends that the conditions involve a

greater deprivation of liberty than is reasonably necessary to deter criminal activity,

protect the public, or promote his rehabilitation.2 Mike failed to raise any of these

challenges to the district court. Normally, this failure would result in plain error review.

However, because the court first announced these conditions in its written judgment, thus,

stripping Mike of an opportunity to object to them, we will review his challenges under

the abuse of discretion standard. See Fed. R. Crim. P. 51(b), United States v. Edgin, 92

F.3d 1044, 1049 (10th Cir. 1996).

Mike’s first challenge lacks merit. A sentencing court need not provide reasons

for each specific special condition that it imposes; rather, it must “only provide a

generalized statement of its reasoning.” See, e.g., Hahn, 551 F.3d at 983. Our holding in

2
It appears that Mike is attempting to also argue that a court may only impose
computer-related restrictions in cases where the defendant had used a computer to commit
an offense. Mike offers no support for this argument and does not develop it beyond
simply citing U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 5D1.3(d)(7)(B) and
noting that neither of Mike’s convictions involved a computer. Because Mike has not
adequately briefed this argument, we will not consider it. See, e.g., United States v.
Kunzman, 54 F.3d 1522, 1534 (10th Cir. 1995).

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Hahn illustrates this point. There, we held that the sentencing court had satisfied the

requisite burden by stating that its imposition of twelve special conditions of supervised

release was appropriate in light of the defendant’s history and characteristics, the fact that

the sex crimes occurred immediately after the cessation of the offense the defendant was

charged with, and the fact that the defendant’s probation officer is charged with

supervising the defendant and not just the crime of which he has been convicted. Id. at

983. Consistent with Hahn, the sentencing court here provided its general rationale for

imposing computer monitoring conditions and the sex offender conditions Mike had

challenged: the results of psychological evaluations performed on Mike in 2004 and

2008, the nature of Mike’s 1997 sexual offense, and the fact that Mike had failed to

comply with his sex offender registration requirements. We find that this meets the

applicable standard, and, thus, reject Mike’s first challenge.

We also reject Mike’s second challenge. While it is true that Mike’s offense of

conviction did not involve a computer and there is no evidence in the record showing that

Mike had a history of using computers in an abusive manner, these facts are not

dispositive here. In 1997, Mike committed a particularly gruesome sex offense.

Furthermore, psychosexual evaluations that were performed in 2004 and 2005 revealed

that Mike had a “sex deviance problem involving rape,” that “he did not take full

responsibility for his sexual misconduct, and [that] he may possibly have emotional

problems associated with inadequacy in social/sexual interactions involving age-

appropriate females.” ROA, Vol. 2, at 25. In addition, a 2008 mental health assessment

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showed that Mike has “serious problems in the area of substance abuse, anxiety,

delusional thinking and poor impulse control.” Id. at 18. In light of these facts, and the

prevalence of content on the internet that appeals to individuals prone to committing

sexual offenses, we cannot say that the court abused its discretion in finding that the

monitoring of Mike’s computer usage was reasonably related to the goals of protecting

the public from further crimes committed by Mike and providing Mike with the

correctional treatment he needs. As a result, we will not vacate the conditions on this

ground.

Although Mike’s first two challenges fail, his third does not. Recently, in United

States v. Matteson, 327 Fed. Appx. 791 (10th Cir. 2009) (unpublished), we were faced

with a case that involved a computer monitoring condition very similar to one of the

conditions at issue here.3 There, the defendant argued that the condition was infirm for

two reasons: first, it was overly vague, and second, it was too intrusive to comply with

3
The challenged condition stated:

The defendant shall consent, at the direction of the United States Probation
Officer, to having installed on his/her computer(s), any hardware or
software systems to monitor his/her computer use. The defendant
understands that the software may record any and all activity on his/her
computer, including the capture of keystrokes, application information,
Internet use history, e-mail correspondence, and chat conversations.
Monitoring will occur on a random and/or regular basis. The defendant
further understands that he/she will warn others of the existence of the
monitoring software placed on his/her computer or any such computer [to
which] the defendant may have access.

Matteson, 327 Fed. Appx. at 792 (emphasis in the original).

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either § 3583(d)(2)’s requirements or the Fourth Amendment. Matteson, 327 Fed. Appx.

at 792. Because we agreed with the defendant that the condition was vague, as it could be

reasonably interpreted to apply to any computer he used, not just the one he owned, we

remanded the matter back to the sentencing court for clarification.

Here, we are presented with essentially the same problem we faced in Matteson: it

is not clear to which computers the conditions in question apply. In its response, the

Government argues that the conditions “cannot be read fairly to encompass public

computers or computers owned by employers.” Appellee Br. 28. We disagree.

Computer monitoring condition two states that “[t]he defendant further understands that

he/she will warn others of the existence of the monitoring software placed on his/her

computer or any such computer the defendant may have access.” ROA, Vol. 1, at 41-42

(emphasis added). Additionally, computer monitoring condition four states that the

defendant “shall submit on a monthly basis any card receipts/bills, telephone bills used

for modem access, or any other records accrued in the use of a computer to the probation

officer.” Id. at. 42 (emphasis added). Due to the presence of the above language, we find

that the probation officer could reasonably believe that the computer monitoring

conditions apply not only to computers that Mike owns, but also to those owned by

others, including Mike’s employer. As a consequence, we remand these conditions to the

district court to clarify their scope. If on remand the court decides that it intends for the

computer monitoring conditions to apply to computers owned by Mike’s employers, it

must make the necessary findings, which we outline infra in our discussion of the

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condition limiting the types of occupations that Mike may engage in.

In light of our holding, we will not address Mike’s deprivation of liberty argument.

See Matteson, 327 Fed. Appx. at 793 (remanding without deciding the issue of whether

the condition at issue was too intrusive).

Sex Offender Treatment and Testing Condition

Mike contends that this condition is infirm because it improperly delegates to the

probation officer the discretion to decide whether he will be subject to inpatient treatment

and/or penile plethysmographic testing, requirements he claims implicate significant

liberty interests. The Government counters by arguing that because the district court

clearly mandated that Mike participate in sex offender treatment and testing, it could

permissibly delegate to the probation officer the decision of which types of treatment and

testing that would be employed. Mike raised this argument to the district court, therefore,

we will review for abuse of discretion.

It is well established that “[p]robation officers have broad authority to advise and

supervise probationers . . . .” Pruden, 398 F.3d at 250; accord United States v.

Rodriguez, 558 F.3d 408, 414-15 (5th Cir. 2009). There are limits to this authority,

though. For instance, Article III prohibits a judge from delegating the duty of imposing

the defendant’s punishment to the probation officer. See, e.g., United States v. Kent, 209

F.3d 1073, 1078 (8th Cir. 2000). In determining whether a particular delegation violates

this restriction, courts distinguish between those delegations that merely task the

probation officer with performing ministerial acts or support services related to the

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punishment imposed and those that allow the officer to decide the nature or extent of the

defendant’s punishment. See United States v. Stephens, 424 F.3d 876, 881 (9th Cir.

2005); Pruden, 398 F.3d at 250. Delegations that do the former are permissible, while

those that do the latter are not.

Recently, in United States v. Esparza, 552 F.3d 1088, 1091 (9th Cir. 2009) (per

curiam), the Ninth Circuit addressed the question of whether a district court could

permissibly delegate to a probation officer the decision of whether the defendant was to

be subject to inpatient treatment. There, the defendant contended that the delegation was

infirm because inpatient treatment is a condition so different in kind from other forms of

treatment that to allow his probation officer to decide whether he would be required to

participate in such treatment would mean that the officer would be deciding the nature or

extent of his punishment. The government responded by claiming that the decision

between whether treatment would be inpatient or out was merely a ministerial one, and,

as a result, could be delegated. The Ninth Circuit sided with the defendant, stating that, in

light of the liberty interest implicated by residential treatment, the probation officer could

not be given the discretion to decide whether the defendant must participate in such

treatment.

We find the Ninth Circuit’s approach of focusing on the liberty interest implicated

when determining whether a particular delegation is infirm to be correct. Conditions that

touch on significant liberty interests are qualitatively different from those that do not. See

United States v. Stoterau, 524 F.3d 988, 1005-06 (9th Cir. 2008) (implicitly recognizing

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this fact by requiring the district court to make special findings before imposing a

condition that implicates a significant liberty interest). In light of this difference, we are

of the belief that granting the probation officer the discretion to decide whether such

conditions will be imposed is tantamount to allowing him to decide the nature or extent of

the defendant’s punishment. Accordingly, we hold that any condition that affects a

significant liberty interest, such as one requiring the defendant to participate in residential

treatment, see, e.g., Addington v. Texas, 441 U.S. 418, 425 (1979) (“This Court

repeatedly has recognized that civil commitment for any purpose constitutes a significant

deprivation of liberty . . . .”), or undergo penile plethysmographic testing, see, e.g., United

States v. Weber, 451 F.3d 552, 563 (9th Cir. 2006), must be imposed by the district court

and supported by particularized findings that it does not constitute a greater deprivation of

liberty than reasonably necessary to accomplish the goals of sentencing, see, e.g., id. at

561.

With it established that a district court cannot delegate the decision of whether to

subject a defendant to residential treatment or penile plethysmograph testing to the

probation officer, we turn to the condition at issue. The condition in this case, unlike the

one in Esparza, does not explicitly state that the probation officer has the discretion to

force Mike to participate in residential treatment nor does it say that plethysmograph

testing is an option. However, due to its open-ended language, the condition could be

read to delegate such discretion. When reviewing challenges to non-specific, all-

encompassing conditions like the one here, other courts have opted to construe them in a

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manner that does not make them infirm. See, e.g, United States v. Daniels, 541 F.3d 915,

926 (9th Cir. 2008) (finding that a condition that ordered the defendant to “take all

prescribed medication” must necessarily be understood not to include medications that

implicated significant liberty interests because the district court did not make the

necessary findings). We believe this approach is best, as we see no reason to require

“district courts to include language eliminating all potential forms of treatment [or

testing] not contemplated at the time of sentencing.” United States v. Villamil, 383 Fed.

Appx. 632, 633 (9th Cir. 2010). Construing the challenged condition as not delegating to

the probation officer the authority to decide whether to subject Mike to inpatient

treatment or plethysmograph testing, we conclude that it does not delegate the duty of

imposing Mike’s punishment to the probation officer. As a result, we reject Mike’s

challenge to this condition.

Prohibition on Contact with Children Condition

Mike presents two challenges to this condition.4 The first is that the condition is

vague and suffers from overbreadth, as it offers no guidance in determining what

constitutes contact with children and effectively excludes him from all places where

children may be. The second is that the condition violates the Fifth Amendment by

“plac[ing] [Mike] in a position necessitating a choice ‘between making incriminating

4
Mike also states that the condition imposes a greater deprivation than is
reasonably necessary. Mike does not develop this argument nor does he cite any
authority in support of it. As a result, we do not address it. See, e.g., Kunzman, 54 F.3d
at 1534.

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statements and jeopardizing his conditional liberty by remaining silent.’ ” Appellant Br.

29-30 (quoting Minnesota v. Murphy, 465 U.S. 420, 426 (1984)). Mike fairly raised these

challenges to the district court so our review is for abuse of discretion.

In support of his first argument, Mike cites United States v. Peterson, 248 F.3d 79

(2d Cir. 2001), and United States v. Smyth, 213 Fed. Appx. 102 (3d Cir. 2007)

(unpublished). In Peterson, the Second Circuit vacated a condition prohibiting the

defendant from “being on any school grounds, child care center, playground, park,

recreational facility or in any area in which children are likely to congregate” on the

ground that is was ambiguous, and, depending on its construction, excessively broad. 248

F.3d at 86. In Smyth, the Third Circuit vacated a condition stating that the defendant

“shall not associate with children, other than his own children, under the age of 18.” 213

Fed. Appx. at 104. As is clear from its opinion, the Smyth court’s decision hinged on the

fact that the sentencing court itself could not say how the condition would be imposed

when pressed by defense counsel. Id. at 107.

Peterson and Smyth are distinguishable from the present case. To begin with, the

condition vacated in Peterson is different in kind from the one at issue here, as it imposed

a location restriction, not an associational restriction. Furthermore, the Third Circuit’s

ruling in Smyth was motivated by the fact that not even the sentencing judge could tell the

defendant how the restriction would be imposed, a fact not present here. As a

consequence, both of these cases’ holdings are of little persuasive value in this case.

Two cases that we believe are more on point are United States v. Loy, 237 F.3d

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251 (3d Cir. 2001), and United States v. Paul, 274 F.3d 155 (5th Cir. 2001), cert. denied,

535 U.S. 1002 (2002). In Loy, the Third Circuit rejected the defendant’s contention that a

condition barring him from having any unsupervised contact with minors was vague

because it was unclear whether it applied to casual or unavoidable contact made in public

places. 237 F.3d at 268. The court premised its rejection on the fact that “it is well

established that associational conditions do not extend to causal or chance meetings.” Id.

at 269. In Paul, the defendant challenged, among other things, a condition requiring him

to avoid “direct and indirect contact with minors” on overbreadth grounds. 274 F.3d at

165. The defendant claimed that the inclusion of the word “indirect” meant that the

condition encompassed chance or incidental encounters with children. Id. at 166. Citing

to Loy, the Fifth Circuit denied this challenge, stating that, properly interpreted, the

condition did not include such encounters. Id. We believe the Third and Fifth Circuits’

interpretation of associational restrictions similar to the one here is correct. As a result,

we find no merit to Mike’s vagueness and overbreadth arguments.

We also find that Mike’s Fifth Amendment argument is meritless. The Fifth

Amendment provides, in relevant part, that no person “shall be compelled in any criminal

case to be a witness against himself.” U.S. CONST. amend V (emphasis added). In

claiming that this condition runs afoul of this provision, Mike cities to United States v.

Saechao, 418 F.3d 1073 (9th Cir. 2005). In Saechao, the defendant was trying to have

incriminating statements he had already made to his probation officer suppressed on the

ground that one of his conditions of release compelled him to make the statements. 418

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F.3d at 1076. Mike’s reliance on Saechao is misplaced, as a crucial distinction exists

between that case and this one: the defendant here has yet to make any incriminating

statements. Because no incriminating statements have been made, the Fifth Amendment

is not implicated. As a result, the condition will not be vacated on this ground. See Zinn,

321 F.3d 1084, 1091-92 (11th Cir. 2003) (rejecting the defendant’s argument that a

condition requiring him to be subjected to polygraph testing violated his Fifth

Amendment rights because the defendant had not yet been compelled to give

incriminating statements).

No Occupation with Access to Children Condition

Mike raises several issues with regard to this condition; we only need to address

one, though: the said condition constitutes an improper occupational restriction. Mike

objected to the imposition of this condition to the district court, therefore, our review is

for abuse of discretion.

A sentencing court may impose a condition prohibiting the defendant from

engaging in a specified occupation, business, or profession, or limiting the terms on

which the defendant may do so, only if it finds that:

(1) a reasonably direct relationship existed between the defendant’s
occupation, business, or profession and the conduct relevant to the offense
of conviction; and

(2) imposition of such a restriction is reasonably necessary to protect the
public because there is reason to believe that, absent such restriction, the
defendant will continue to engage in unlawful conduct similar to that for
which the defendant was convicted.

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U.S.S.G. § 5F1.5(a)(1)-(2). Additionally, the court must find that the “occupational

restriction is the minimum restriction necessary.” United States v. Souser, 405 F.3d 1162,

1167 (10th Cir. 2005).

The condition in question here clearly prohibits Mike from engaging in certain

occupations. Therefore, the sentencing court was required to make the aforementioned

findings, which it failed to do. As a result, we vacate and remand this condition.

Third Party Notification Condition

Based on our holding in Souser, 405 F.3d 1162, Mike contends that to the extent

this condition requires him to notify potential employers or educational programs about

his criminal convictions, it is infirm because such notification constitutes an occupational

restriction and the court did not make the findings required by law. The Government

agrees. So do we. As a result, we vacate this condition to the extent it requires such

notification. If on remand, the court still wishes to require Mike to notify his employer

and/or educational program, it must make the necessary findings.

Mental Health Program and Prescribed Medication Conditions

Mike raises two challenges with regard to the conditions requiring him to

participate in a mental health program and to take the prescribed medication. The first is

that the portion of the conditions stating that he must take the medication that is

prescribed is overly broad because it is not explicitly limited to medication reasonably

necessary for effective treatment. The second is that the conditions impermissibly

delegate to his probation officer the decision of whether he must participate in inpatient

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treatment and take psychotropic drugs, requirements he claims implicate significant

liberty interests. Mike failed to raise either of these arguments to the district court, thus,

our review is for plain error.

Mike’s first argument is based on the holding in United States v. Cope, 527 F.3d

944 (9th Cir.), cert. denied, 129 S. Ct. 321 (2008). In that case, the Ninth Circuit found

that the requirement that the defendant “ ‘shall take all prescribed medication’ [wa]s

overbroad insofar as it is not clearly limited to medications that are reasonably related to

sex offender treatment.” Cope, 527 F.3d at 956. Due to this finding, the court vacated

and remanded the condition to the district court. Id.

We are unpersuaded by the holding in Cope. We believe that viewing the

medication requirements at issue here in the context in which they were placed reveals

that Mike must only take those medications that are related to his mental health programs.

Cf. United States v. Phipps, 319 F.3d 177, 193 (5th Cir. 2003) (determining the scope of a

restriction by looking at the context in which it is placed); United States v. Cutler, 259

Fed. Appx. 883, 887 (7th Cir. 2008) (same). As a result, we reject Mike’s overbreadth

argument.

Mike’s second argument raises two issues: first, can a court delegate the decision

of whether a defendant must participate in residential treatment, and second, can a court

delegate the decision of whether a defendant must take psychotropic medications.

Starting with the first, as we noted above, it is error for a court to grant to the probation

officer the discretion to determine whether the defendant will participate in residential

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treatment. Here, the special condition dealing with mental health treatment requires Mike

to participate in a mental health treatment program, which may include “residential

placement,” as approved by the probation officer. Thus, while the court clearly ordered

participation in some type of program, it expressly left the decision of whether the

program would be residential to the probation officer.5 This was error. However, this

error was not plain at the time of appeal, as this Court had not decided the issue and there

appears to be a split in the circuits.6 See, e.g., United States v. Juarez-Galvan, 572 F.3d

1156, 1160-61 (10th Cir. 2009) (stating that an error is not plain when we have yet to

address an issue and the case law from other circuits appears to conflict). As a

consequence, we do not vacate the portion of the special condition that relates to the type

of mental health program to which Mike will be subject.

With regard to the second issue, we have not had occasion to address it. However,

our earlier discussion on delegation sheds light on the matter. As stated above, a district

court cannot delegate decisions that implicate significant liberty interests because such

delegations allow the probation officer to determine the nature or extent of the

5
The standard condition dealing with mental health treatment did not expressly
delegate such discretion to the probation officer. Therefore, we do not construe the
condition as delegating the duty of imposing Mike’s punishment to the probation officer.
6
Compare United States v. Cutler, 259 Fed. Appx. 883, 887 (7th Cir. 2008)
(unpublished) (stating that it is permissible for the probation officer to determine the
“level of treatment [the defendant] would receive – inpatient treatment or outpatient
treatment”) and United States v. Calnan, 194 Fed. Appx. 868, 870-71 (11th Cir. 2006)
(unpublished) (per curiam) (same) with Esparza, 552 F.3d at 1091 (finding that a court
cannot delegate to the probation officer the decision of whether the defendant will be
subject to inpatient treatment).

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defendant’s punishment. It is well established that individuals have a significant interest

in avoiding the involuntary administration of psychotropic drugs. See United States v.

Bradley, 417 F.3d 1107, 1113 (10th Cir. 2005); United States v. Williams, 356 F.3d 1045,

1057 (9th Cir. 2004). As a consequence, district courts cannot delegate the decision of

whether to force the defendant to take psychotropic drugs to the probation officer.

Here, neither of the conditions relating to mental health treatment explicitly

delegate such discretion to the probation officer. Therefore, we do not construe the

conditions as doing so. Because of this fact, we do not find the portions of the conditions

discussing the administration of medication to be infirm.

Substance Abuse Treatment Condition

Mike claims for the first time on appeal that this condition is infirm because it

impermissibly delegates to his probation officer the decision of whether he must

participate in residential treatment. The condition at issue requires Mike to participate in

and complete a substance abuse treatment, but expressly delegates to the probation officer

the decision of whether such treatment will be residential. Because Mike did not raise

this argument to the district court our review is for plain error.

As noted in the previous section, at the time of this appeal, it was not plain error

for a district court to delegate to the probation officer the discretion of whether the

defendant must participate in residential treatment. Accordingly, we do not vacate this

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condition.7

Prohibition on Possessing Sexually Explicit Materials Condition8

Mike contends that this condition is unrelated to his criminal history and the goal

of preventing recidivism, is overly broad, and effects a greater deprivation of liberty than

is necessary to achieve the goals of sentencing. Mike did not object to the imposition of

this condition in his brief to the district court. Nevertheless, Mike now argues that his

claim should not be subject to plain error review because the district court understood him

to be objecting to all of the sex offender conditions imposed. We disagree. If Mike

wanted to preserve his objections to this condition, he should have raised them in the

same brief that he raised his objections to six of the other conditions the court imposed.

Because he failed to do this, our review is for plain error.

Mike’s first argument fails. This argument is premised upon the fact that there is

no evidence that Mike has ever abused or even possessed pornography in the past, much

less that it is likely to lead him to commit a sexual offense in the future. Two circuits

7
In his reply, Mike contends that we must vacate this condition in its entirety
because the Government did not respond to the argument he raised with regard to it. We
disagree. The cases relied on by Mike are inapposite here. In those cases, we were
addressing what happens when an appellant fails to raise an argument, not when the
appellee does.
8
Mike also cites the condition stating that he shall submit to searches conducted in
a reasonable manner and at a reasonable time for the purpose of detecting sexually
explicit material. However, Mike never puts forth an argument for why this condition is
infirm. Therefore, he has waived any objection he may have had to it. See, e.g.,
Fuershbach v. Sw. Airlines Co., 439 F.3d 1197, 1209-10 (10th Cir. 2006) (finding that the
appellant had waived her claim by “mak[ing] no argument, cit[ing] to no authority, and
direct[ing] us to no evidence supporting an appeal on this issue”).

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have held in circumstances similar to those presented here that such a ban is

impermissible. See United States v. Perazza-Mercado, 553 F.3d 65, 75-79 (1st Cir.

2009); United States v. Voelker, 489 F.3d 139, 150-53 (3d Cir. 2007). However, at least

one circuit has reached a different conclusion. See United States v. Bee, 162 F.3d 1232,

1234-35 (9th Cir. 1998).9 Therefore, in light of this split, and Mike’s background, namely

the psychosexual evaluations performed in 2004 and 2005, the 2008 mental health

assessment, and the gruesomeness of his 1997 sex offense, we cannot say that it is

obvious or clear that the ban on his possession of sexually explicit materials is not

reasonably related to any of the factors discussed in 18 U.S.C. § 3553(a). Thus, the court

did not plainly err.

Mike’s second and third arguments are, in essence, the same. Therefore, we will

review them together. According to Mike, this condition is overly broad and imposes too

great of a deprivation of liberty because it prohibits him from possessing a copy of his

presentence report, which discusses his sexual assault offense, writings that may be

required for his court-ordered sex offender treatment, and adult pornography. Mike cites

Cope, 527 F.3d 944, in support of his contention that the said condition includes his

presentence report and writings from treatment. In Cope, the Ninth Circuit found that a

condition similar to the one at issue here was overly broad because it “straightforwardly

9
In cases where the offense of conviction involved child pornography, a number of
courts have held that a ban on adult pornography is not problematic. See, e.g., United
States v. Brigham, 569 F.3d 220, 232-34 (5th Cir. 2009); United States v. Rearden, 349
F.3d 608, 619-20 (9th Cir. 2003).

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applie[d]” to the defendant’s own presentence report, copies of statutes and cases that the

defendant might need were he to bring a collateral challenge to an aspect of his sentence

once he is released from prison, and a sexual autobiography that may be a required

element of the defendant’s sex offender treatment program. 527 F.3d at 957-58. Because

of this breadth, the court vacated the condition.

We find the Ninth Circuit’s approach for interpreting release conditions to be

overly technical, and opt instead for a more commonsense one. See United States v.

Brigham, 569 F.3d 220, 234 (5th Cir. 2009) (reviewing a condition prohibiting the

defendant from possessing “any pornographic, sexually oriented or sexually stimulating

materials” in a “common-sense way”). Applying a commonsense approach, we do not

find that the condition at issue includes Mike’s presentence report or any writings that

may be part of his treatment. Therefore, we will not vacate on this ground. We also will

not vacate the condition because of its prohibition on Mike possessing adult pornography.

Given the current state of the law, we cannot say that it is clear or obvious that the

imposition of a condition prohibiting a defendant, who has committed a sexual offense,

but not a sexual offense involving pornography, from possessing legal, adult pornography

is a greater deprivation of liberty than is reasonably necessary. Compare Bee, 162 F.3d at

1234-35 (upholding a condition prohibiting the possession of pornography under a similar

attack), and United States v. Carpenter, 280 Fed. Appx. 866, 869 (11th Cir. 2008)

(unpublished) (stating that a condition banning the possession of sexually explicit

materials involving adults was not overly broad), with Voelker, 489 F.3d at 153 (vacating

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a similar condition). As a consequence, Mike’s overbreadth and greater deprivation than

is necessary arguments fail.

IV. CONCLUSION

The sentence is AFFIRMED in part, VACATED in part, and REMANDED to the

district court for further proceedings consistent with this opinion. Mike’s unopposed

motion to seal the briefs is GRANTED.

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