United States v. Tom Malenya

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 26, 2013 Decided December 3, 2013

No. 12-3069

UNITED STATES OF AMERICA,
APPELLEE

v.

TOM LUSULI MALENYA,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 1:12-cr-00045-1)

Jonathan S. Jeffress, Assistant Federal Public Defender
argued the cause for appellant. With him on the briefs were
A.J. Kramer, Federal Public Defender, and Rosanna M.
Taormina, Assistant Federal Public Defender. Tony Axam Jr.,
Assistant Federal Public Defender, entered an appearance.

James A. Ewing, Assistant U.S. Attorney, argued the
cause for appellee. With him on the briefs were Ronald C.
Machen Jr., U.S. Attorney, and Elizabeth Trosman and
Chrisellen R. Kolb, Assistant U.S. Attorneys.
 2

Before: BROWN and KAVANAUGH, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.

Dissenting opinion filed by Circuit Judge KAVANAUGH.

WILLIAMS, Senior Circuit Judge: Tom Lusuli Malenya, a
41-year-old Army nurse, posted a personal ad on the “Men
Seeking Men” section of Craigslist.com. D.R., who was 14 at
the time, responded to Malenya’s ad by e-mail and claimed to
be an 18-year-old “twink”—someone who appears to be
younger but who is actually an adult male between the ages of
18 and 23. Via text message, Malenya arranged for D.R. to
come to his apartment, and the two had sex. A few weeks
later, D.R.’s mother became concerned about the nature of
D.R.’s relationship with Malenya and contacted the police.
Using D.R.’s phone and pretending to be D.R., a detective
sent a text message giving Malenya D.R.’s actual age and
saying, “If your [sic] not cool its [sic] ok.” Malenya
responded, via text message, “As long as you do not tell
anyone is [sic] cool.” In another exchange of text messages
the next day, Malenya arranged a second meeting at his
apartment with D.R., and was arrested when a detective
turned up instead of D.R.

In an information filed in the United States District Court
for the District of Columbia, the United States charged
Malenya with violations of 18 U.S.C. § 2422(b) and D.C.
Code § 22-3010.02. Pursuant to a plea agreement, Malenya
pled guilty to the D.C. Code violation. The court sentenced
Malenya to a 36-month term of incarceration, suspended all
but a year and a day, and imposed a 36-month term of
supervised release subject to several special conditions. After
 3

sentencing, the government moved to dismiss the federal
charge, and the court granted the motion.

Malenya’s objections to the conditions of supervised
release are the sole merits subjects before us. We first address
a couple of preliminary issues. On the merits, we find that the
district court’s own statements, and the sweeping nature of
several of the conditions, demonstrate that the court failed to
weigh the burden of the conditions on Malenya’s liberty
against their likely effectiveness, as required by 18 U.S.C.
§ 3583(d). We vacate the challenged conditions and remand
the case to the district court to impose alternative conditions
consistent with the governing statute.

* * *

Congress has granted the United States District Court for
the District of Columbia jurisdiction over “[a]ny offense
under any law applicable exclusively to the District of
Columbia which offense is joined in the same information or
indictment with any Federal offense.” District of Columbia
Court Reorganization Act of 1970, Pub. L. No. 91-358, title I,
§ 111, 84 Stat. 477, 478 (codified at D.C. Code § 11-502).
The information here included both the federal offense and
D.C. Code violation, so the district court had jurisdiction over
the latter.

Disposition of the federal offense after proper joinder
does not withdraw power over the local offense, United States
v. Kember, 685 F.2d 451, 454 (D.C. Cir. 1982), but “when
federal charges have faded from the case prior to trial,” the
court has discretion to divest itself of jurisdiction, reviewable
for abuse of discretion, id. at 454, 455. Due to variations in
procedure and substance between the two systems, some
hesitance to retain jurisdiction over a properly joined D.C.
 4

Code offense is in order once the federal charges have “faded
from the case.” Malenya, however, has not argued that the
district court abused its discretion, and, because retention of a
D.C. Code violation would not affect the district court’s
power to hear the case even where retention of the case was
an abuse of discretion, see id. at 454 (citing United States v.
Kember, 648 F.2d 1354, 1359 (D.C. Cir. 1980) (per curiam)),
we need not raise the issue on our own.

In a footnote to its brief the government noted that § 11-
502(3) does not explicitly address the district court’s
attachment of conditions to a term of supervised release.
Govt. Br. 16-17 n.8. The government also pointed out that
while in criminal cases in D.C. Superior Court the trial court
sets the duration of any supervised release, it is the U.S.
Parole Commission that imposes any conditions on that
release. Compare D.C. Code § 24-403.01(b) (1-4) (duration),
with D.C. Code § 24-403.01(b) (6) (conditions). We ordered
the parties to brief the matter, and Malenya, while conceding
that the district court could impose a sentence, including a
term of supervised release, argued that its attachment of any
conditions was error.

Given § 11-502(3)’s explicit grant of “jurisdiction of . . .
[a]ny offense under any law applicable exclusively to the
District of Columbia” (so long as the joinder requirement has
been met) (emphasis added), there seems little basis for any
claim that the district court exceeded its jurisdiction in
imposing conditions on supervised release. Accordingly, the
issue is subject to normal rules of forfeiture. See United
States v. Cotton, 535 U.S. 625 (2002). As Malenya didn’t
raise the issue until prompted by the government’s brief and
our order, our review is only for “plain error” under Rule
52(b) of the Federal Rules of Criminal Procedure.
 5

The error, if any, falls far short of satisfying the
component of plain error review requiring that the error have
been “clear or obvious, rather than subject to reasonable
dispute.” Puckett v. United States, 556 U.S. 129, 135 (2009).
The propriety of the district court’s sentencing Malenya at all
must be inferred from the general grant of jurisdiction in D.C.
Code § 11-502(3), and, as defense counsel acknowledged, the
same is true even for the court’s imposing a term of
supervised release. Thus any claim that the court’s imposition
of conditions on that supervised release is improper seems at
least subject to reasonable dispute. Moreover, reading § 11-
502(3) to allow the district court to attach conditions has the
appeal of avoiding the peculiar result that no one can impose
conditions on the supervised release of a defendant sentenced
under § 11-502(3). Finding the supposed error not to be clear
enough to qualify as plain error, we will not review Malenya’s
forfeited claim.

* * *

We start our review of the challenged conditions by
setting them forth, as stated by the district court at sentencing,
adding bracketed headings for convenience.

[Computer/internet access.] [Y]ou shall not possess or
use a computer or have access to any on-line service
without the prior approval of the United States Probation
Office; you shall identify all computer systems, Internet
capable devices, and similar memory and electronic
devices to which you have access, and allow installation
of a computer and Internet-monitoring program.

You are limited to possessing only one personal Internet
capable device. Monitoring may include random
examinations of computer systems, along with Internet,
 6

electronic, and media storage devices under your control.
The computer system or device may be removed for a
more thorough examination, if necessary. You shall be
responsible for the costs of such monitoring services.

[Computer pornography access.] You shall not use a
computer, Internet capable device, or similar electronic
device to access pornography of any kind. This includes
but is not limited to accessing pornographic web sites,
including web sites depicting images of nude adults or
minors. You shall not use your computer to view
pornography stored on related computer media such as
CDs or DVDs, and shall not communicate via your
computer with any individual or group who promotes the
sexual abuse of children.

[Preclusion of contact with minors.] You shall have no
direct contact with minors under the age of 18 without the
written approval of the probation officer, and shall refrain
from entering into any area where children frequently
congregate, including but not limited to schools, day care
centers, theme parks, theatres, playgrounds, shopping
malls, swimming areas, community recreation centers,
and arcades.

[Preclusion of contact with minors in employment or
volunteer work.] You shall not be employed in any
capacity that may cause you to come into direct contact
with children, except under circumstances approved in
advance by the supervisory probation officer. You shall
not participate in any volunteer activity that may cause
you to come in direct contact with children, except under
those circumstance [sic] approved in advance by your
probation officer.

...
 7

[Required sex offender treatment.] You shall participate
in the program of sex offender assessment and treatment
as directed by the probation officer until such time as you
are released from the program. This assessment and
treatment may include physiological testing, such as
polygraph, to assist in planning, case monitoring, and
supervision. At the direction of the probation officer, you
shall pay for all or a portion of any treatment program.
Any refusal to submit to such assessment or tests as
scheduled is a violation of the conditions of release.

You shall waive your right of confidentiality in treatment,
and sign any necessary releases for any records imposed
as a consequence of this judgment to allow the
supervisory probation officer to review your course of
treatment and progress with the treatment providers.

[Physiological testing condition.] You shall submit to
penile plethysmograph testing as directed by the United
States Probation Office as part of your sex offender
therapeutic treatment. The costs of that testing are to be
paid by you as directed by the probation office.

[Limits on places of residence, employment and
volunteering.] You shall have all residences,
employment, and volunteer work preapproved by the U.S.
Probation Office. Your residence may not be in close
proximity to locations frequented by children such as
schools, playgrounds, public pools, and video galleries.
You shall neither reside in a residence where minor
children also reside, nor shall you work or volunteer for
any business or organization that provides services or
employs persons under 18 years of age without the
permission of the U.S. Probation Office.
 8

. . . . [Romantic relationship limit.] You shall notify the
U.S. Probation Office when you establish a significant
romantic relationship, and shall then inform the other
party of your prior criminal history concerning your sex
offenses. You understand that you must notify the U.S.
Probation Office of that significant other’s address, age,
and where the individual may be contacted.

The government argues that plain error review should
apply to two of the conditions—the computer pornography
prohibition and the restriction on employment or volunteer
work involving minors. This is incorrect. The Presentence
Investigation Report (“PSR”) identified both of these as
suggested conditions for supervised release. Defense counsel
responded with a brief that quoted § 3583(d)’s insistence that
any imposed condition “involves no greater deprivation of
liberty than is reasonably necessary” for the various
sentencing goals set out in cross-referenced provisions.
Counsel then asserted that all of the conditions set out in the
PSR, except two not at issue in this appeal, were not
“reasonably related to this case and all involve a greater
deprivation of liberty than is reasonably necessary.”

This objection both identified the conditions to which
Malenya objected and the grounds on which he objected. Cf.
United States v. Love, 593 F.3d 1, 11 (D.C. Cir. 2010).
Malenya thus gave the court ample opportunity to avoid error
by considering the mandate of § 3583(d). See Fed. R. Crim.
P. 51(b). Our review of the challenged conditions is for abuse
of discretion. Love, 593 F.3d at 11. In such a review we ask
“whether the district court considered the prescribed factors
and clearly articulated their effect on its decision.” United
States v. Wright, 6 F.3d 811, 813 (D.C. Cir. 1993). Failure to
apply the correct legal standard itself constitutes an abuse of
discretion. Brayton v. Office of the U.S. Trade
Representative, 641 F.3d 521, 524 (D.C. Cir. 2011).
 9

By statute the district court may impose conditions of
supervised release (other than certain mandatory ones) if the
conditions are “reasonably related” to factors set forth in 18
U.S.C. § 3553 and “involve[] no greater deprivation of liberty
than is reasonably necessary for the purposes” identified in
that section. 18 U.S.C. § 3583(d) (1), (2).

The statute identifies the permissible purposes by means
of complex cross-references, but the Sentencing Commission
has restated those purposes by providing that the conditions
must be

reasonably related to (A) the nature and circumstances of
the offense and the history and characteristics of the
defendant; (B) the need for the sentence imposed to
afford adequate deterrence to criminal conduct; (C) the
need to protect the public from further crimes of the
defendant; and (D) the need to provide the defendant with
needed educational or vocational training, medical care,
or other correctional treatment in the most effective
manner.

U.S. Sentencing Guidelines Manual § 5D1.3(b). The
Guidelines of course also repeat the statute’s requirement that
conditions must involve “no greater deprivation of liberty than
is reasonably necessary.” Id. The court therefore must not
only find the condition to be reasonably related to Congress’s
goals as related to the defendant but must weigh the
consequences for the defendant’s liberty against any likely
achievement of the statutory purposes. Though “reasonably
necessary” may be quite vague in many legal contexts, see
Dissent at 2, here it is tethered to deprivation of liberty in
terms that in effect require the court to choose the least
restrictive alternative. Section 3583(d)(2) is thus, as the
Seventh Circuit put it, a “narrow tailoring requirement.”
United States v. Holm, 326 F.3d 872, 877 (7th Cir. 2003); see
 10

also United States v. Perazza-Mercado, 553 F.3d 65, 73 (1st
Cir. 2009); United States v. Voelker, 489 F.3d 139, 144-45 (3d
Cir. 2007).

The court’s characterization of the conditions imposed
was quite inconsistent with the statutorily required
consideration of Malenya’s liberty. First, it justified them as
“the standard conditions that are imposed in these cases,” thus
wrapping the case before it into a cluster of “these cases”—
cases whose distinguishing features it did not delineate.
Further, the court explained that the conditions were
reasonably necessary to “minimize the risk” of re-offense, a
formulation that ignores the balancing of goals against the
defendant’s liberty, as required by § 3583(d)(2). Nor was the
implicit rejection of balancing in this language corrected or
offset by any indication of balancing elsewhere in the court’s
discussion.

The limit on computer/internet access illustrates the
failure to consider the consequences of the conditions. Its key
phrase says that “you [Malenya] shall not possess or use a
computer or have access to any on-line service without the
prior approval of the United States Probation Office . . . and
[shall] allow installation of a computer and Internet-
monitoring program.”

We have often noted the ubiquity of computers in modern
society and their essentialness for myriad types of
employment. See, e.g., United States v. Russell, 600 F.3d
631, 637 (D.C. Cir. 2010). Given the need to use a computer
to apply for a job at McDonald’s, id., it seems likely that full-
bore enforcement would shrink Malenya’s employment
opportunities to the vanishing point. And even if he secured
probation office approval for use of the computer systems in
his chosen vocation of medicine, the monitoring requirement
appears inconsistent with medical privacy requirements.
 11

Quite apart from employment, the internet provides, as we
noted in another decision, “the easiest way to pay . . . bills,
check the weather, stay on top of world events, and keep in
touch with friends.” Love, 593 F.3d at 12. A ban on
computer and internet usage, qualified only by the possibility
of probation office approval, is obviously a significant
deprivation of liberty.

Implicitly the government suggests that this significant
deprivation of liberty is no more than is “reasonably
necessary” for the purposes referred to in § 3583(d)(2). The
government contends that the deprivation is reasonably
necessary because but for the internet, Malenya would not
have met his victim. But this alone cannot be enough to
justify such a deprivation of liberty. If it were, district courts
could impose bans on reading newspapers if a defendant met
his victim through the wanted ads, or ban the wearing of
eyeglasses if a defendant first saw the victim through
corrective lenses. Because the net is so novel, powerful and
protean, it may seem to have a kind of magic. But pen, paper
and literacy (or at least their widespread availability) once
enjoyed all three characteristics, yet we would laugh at
criminologists who advocated banning access for prisoners
who had served their term.

When challenged as to its but-for causation argument, the
government argued that Malenya’s use of the internet to seek
a sexual relationship with an adult demonstrated that he might
use the internet to seek sex with children. But this rationale is
similarly unavailing. We explained in United States v.
Burroughs, 613 F.3d 233, 243 (D.C. Cir. 2010), that the mere
possibility that “the Internet can be used to arrange sexual
encounters with minors” is inadequate to justify an internet
restriction. It is unclear if any computer or internet restriction
could be justified in Malenya’s case, but the condition in its
current form is surely a greater deprivation of liberty than is
 12

reasonably necessary to achieve the goals referenced in §
3583(d). Cf. United States v. McLaurin, 731 F.3d 258, 262
(2d Cir. 2013).

The pornography restriction also illustrates the district
court’s failure to consider the appropriateness of the probation
office’s proposed conditions. The district court may have
been within reason to restrict a child sex offender’s access to
child pornography, which is of course already illegal, see, e.g.,
18 U.S.C. § 2252A. But the record contains no evidence
either that Malenya indulged in adult or child pornography, or
that viewing adult pornography would increase the likelihood
that he would again indulge in sex with non-adults—which,
after all, he did not seek out in this case. With no evidence of
a need for the restriction, it appears to be a more significant
deprivation of liberty than is reasonably necessary. See
Perazza-Mercado, 553 F.3d at 75-76, 78 (vacating an adult
pornography restriction as plain error when the district court
gave no explanation for the condition and no discernible
evidence in the record justified the ban).

Finally, the vague language and vast scope of the contact
and residential conditions demonstrate the district court’s
failure to consider the effect of the imposed conditions on
Malenya’s liberty. The restrictions not only prevent Malenya
from intentionally interacting directly with children, which
could potentially be justified, but also prevent him from
participating in many activities of everyday American life,
activities that Malenya is not shown to have abused. For
instance, a reasonable reading of the contact restriction would
prevent Malenya from entering a shopping mall or going to a
movie, even one that children cannot attend, for three years.
Moreover, use of vague language like “close proximity” and
“frequently congregate” gives the probation office the power
to prevent Malenya from living almost anywhere and going to
almost any place.
 13

This significant deprivation of liberty might be justified
in a case where an offender has frequented such locations for
the purpose of preying on children, or has shown a
pathological attraction to children. Here there is no evidence
of such behavior. In fact, the evidence that Malenya is
attracted to children per se is ambiguous and seems to place
him in a category fitting neither the government’s nor
defendant’s characterization. While he never (so far as
appears) sought a sexual encounter with anyone underage, he
did persist in his plans here even after learning that D.R. was
only 14; neither his preferences nor his ethics called a halt.

We pause to consider the thought that the district court
may have substituted stringency of conditions for time in
prison. See Dissent at 5-6. Such a trade-off is obviously
conceivable. But in addressing the character of conditions,
§ 3583(d)(2) introduces the goal of minimizing the
deprivation of liberty and thus the narrow tailoring
requirement considered earlier, making the execution of such
a trade-off distinctly awkward. Further, in placing a
defendant on supervised release, the court has necessarily
determined that the goals of sentencing would at that point be
better served by putting the defendant at liberty (albeit a
constrained liberty), a shift that inherently seems to increase
the weight due to rehabilitative goals over those of retribution,
deterrence and incapacitation. Whatever the merits of the
view that a court may trade off the duration of prison and
supervised release, see United States v. Albertson, 645 F.3d
191, 198 (3d Cir. 2011), trading off duration of sentence for
stringency of conditions may prove to be a difficult practical
exercise. As the district court here gave no hint of making
such a trade-off, we need not consider whether it would have
complied with the statute.

Since the district court did not apply the correct standard
for imposing conditions of supervised release, we vacate all
 14

the challenged conditions and remand to the district court to
impose special conditions of supervised release in compliance
with § 3583(d).

So ordered.
 KAVANAUGH, Circuit Judge, dissenting: Malenya, then a
41-year-old man, attempted to have sex with someone he
knew to be 14. Malenya’s attempt was thwarted only because
the 14-year-old’s mother fortuitously intercepted explicit text
messages Malenya sent to the 14-year-old. For his conduct,
Malenya ultimately pled guilty and received a relatively short
prison sentence of one year and a day in prison, followed by
three years of supervised release with certain special
conditions attached. On appeal, Malenya objects to the
special conditions imposed by the District Court and asks that
they be vacated. The majority opinion vacates the special
conditions. With one exception, I would affirm the special
conditions. I therefore respectfully dissent.

I

Under Section 3583 of Title 18, a district court at
sentencing may impose a term of supervised release to follow
a term of imprisonment. By statute, a term of supervised
release comes with certain conditions attached; some are
mandatory and some are discretionary. If the defendant
violates a condition, the defendant’s term of supervised
release may be revoked and the defendant sent back to prison.

The mandatory conditions of supervised release include,
for example, a requirement that the defendant not commit
another crime or unlawfully possess a controlled substance
during the term of supervised release. See 18 U.S.C.
§ 3583(d).

By statute, the court also has discretion to impose
additional supervised release conditions, which are commonly
referred to as “special conditions,” provided that three
statutory requirements are met. First, special conditions must
be “reasonably related” to some of the general sentencing
factors identified in Section 3553(a), including “the nature
and circumstances of the offense,” “the history and
 2
characteristics of the defendant,” deterrence, protection of the
public, and providing needed correctional treatment to the
defendant. Id. § 3583(d)(1) (citing id. § 3553(a)(1)-(2)).
Second, special conditions must entail “no greater deprivation
of liberty than is reasonably necessary” for certain purposes
set forth in Section 3553(a), including deterrence, protection
of the public, and providing treatment to the defendant. Id.
§ 3583(d)(2) (citing id. § 3553(a)(2)). And third, special
conditions must be “consistent with any pertinent policy
statements issued by the Sentencing Commission.” Id.
§ 3583(d)(3). The first two requirements – the “reasonably
related” and “reasonably necessary” requirements – are the
focus of this appeal.

Section 3583’s “reasonably related” and “reasonably
necessary” standards are obviously quite vague. The vague
statutory text means that district courts possess significant
discretion to balance the competing sentencing considerations
listed in Section 3553(a) (and cross-referenced by Section
3583) when imposing special conditions of supervised
release. The significant discretion in turn means that we can
expect variety. Different “district courts may have distinct
sentencing philosophies.” United States v. Gardellini, 545
F.3d 1089, 1093 (D.C. Cir. 2008). And even apart from such
philosophical differences, the special conditions that appear
“reasonably related” and “reasonably necessary” to one
district court judge in a particular case may appear unduly
restrictive to another district court judge.

On appeal, we review the district court’s selection of
special conditions of supervised release only for an abuse of
discretion. See United States v. Love, 593 F.3d 1, 11 (D.C.
Cir. 2010). Appellate deference is thus stacked upon wide
district court discretion. As appellate judges, it is not our role
to impose the mix of special conditions we would have
 3
selected as district court judges in the first instance. Rather,
our more modest task is simply to ensure that the district
court has not jumped the rails bounding its wide discretion.

II

In this case, in considering whether the District Court
abused its discretion in finding the special conditions
“reasonably related” to Section 3553(a)’s sentencing goals
and not more restrictive than “reasonably necessary,” I begin
with four overarching considerations that inform my
evaluation of the specific special conditions.1

1
Malenya here challenges the District Court’s imposition of
special conditions of supervised release that require that he: (1)
“not possess or use a computer or have access to any on-line
service without the prior approval of the United States Probation
Office”; (2) “not use a computer, Internet capable device, or similar
electronic device to access pornography of any kind”; (3) “have no
direct contact with minors under the age of 18 without the written
approval of the probation officer”; (4) “refrain from entering into
any area where children frequently congregate, including but not
limited to schools, day care centers, theme parks, theatres,
playgrounds, shopping malls, swimming areas, community
recreation centers, and arcades”; (5) “not be employed in any
capacity that may cause [him] to come into direct contact with
children, except under circumstances approved in advance by the
supervisory probation officer” and not “work or volunteer for any
business or organization that provides services or employs persons
under 18 years of age without the permission of the U.S. Probation
Office”; (6) “participate in [a] program of sex offender assessment
and treatment as directed by the probation officer”; (7) “submit to
penile plethysmograph testing as directed by the United States
Probation Office”; (8) not reside “in close proximity to locations
frequented by children such as schools, playgrounds, public pools,
and video galleries”; (9) not reside “where minor children also
 4
First, any analysis of the special conditions must begin
with the one critical fact in this case. Malenya, then a 41-
year-old man, targeted and attempted to have sex with
someone he knew to be 14 years old. This is a contact case.
In other words, Malenya was doing far more than watching
pornography. In what seems to be an overly generous
interpretation, the majority opinion terms the evidence
“ambiguous” as to whether Malenya was attracted to children
per se. Maj. Op. at 12. But we know that Malenya (then 41
years old) actively sought to have sex with someone he knew
to be 14 years old. That is not ambiguous. In light of
Malenya’s admitted effort to sexually prey on a 14-year-old,
it was entirely rational for the District Court to impose
various special conditions of supervised release in order to try
to prevent Malenya from sexually exploiting future under-age
victims.

Second, the special conditions imposed on Malenya are
common for sex offenders, particularly for those such as
Malenya who have engaged in or sought to engage in actual
sexual activities with individuals they knew to be under age.
See generally U.S. SENTENCING COMMISSION, FEDERAL
OFFENDERS SENTENCED TO SUPERVISED RELEASE 20-27
(2010). That these kinds of special conditions are commonly
imposed by district court judges helps demonstrate the
reasonableness of the special conditions, in the same way that
a sentence’s being within the Sentencing Guidelines helps
demonstrate the reasonableness of the sentence. Cf. United
States v. Dorcely, 454 F.3d 366, 376 (D.C. Cir. 2006)

reside . . . without the permission of the U.S. Probation Office”;
and (10) “notify the U.S. Probation Office when [he] establish[es] a
significant romantic relationship” and “inform the other party of
[his] prior criminal history.” Tr. Sentencing Hearing at 42-45, Aug.
20, 2012.
 5
(appellate presumption of reasonableness for within-
Guidelines sentence).

Third, in thinking about the overall reasonableness of the
special conditions of supervised release in this case, we
cannot lose sight of the sentence as a whole. As the cross-
relationship between Sections 3583 and 3553 indicates,
Congress considered imprisonment and supervised release,
including attendant conditions, to be elements of a single
sentencing package. Here, Malenya was sentenced to only
one year and a day in prison, a fairly short prison term for a
41-year-old who attempted to have sex with someone he
knew to be 14 years old. After all, the statutory maximum
sentence Malenya could have received under the D.C. Code
provision to which he pled guilty was three years’
imprisonment. See D.C. CODE §§ 22-3010.02(b), 24-403.01.
And the federal offense for which Malenya was originally
indicted, attempted enticement of a minor in violation of 18
U.S.C. § 2422(b), carried a federal mandatory minimum of 10
years’ imprisonment. But for the Government’s exercise of
prosecutorial discretion, Malenya would have been subject to
that 10-year mandatory minimum sentence for his conduct.

The relative brevity of Malenya’s term of imprisonment
certainly bears on any assessment of the severity of the
special conditions. After all, living in freedom subject to a
few special conditions is – at least up to a point, depending on
the nature of the special conditions – a far lesser restraint on a
defendant’s liberty than living in prison. Moreover, when as
here a district court selects a shorter term of imprisonment, it
may correspondingly want to impose more restrictive special
conditions of supervised release – or a lengthier term of
supervised release – in order to achieve Section 3553(a)’s
goals of deterrence and protection of the public. See 18
U.S.C. § 3553(a)(2)(B)-(C); United States v. Albertson, 645
 6
F.3d 191, 198 (3d Cir. 2011) (because of the “interplay
between prison time and the term of supervised release,” “a
district court may find it proper to impose a longer term of
supervised release to follow a relatively shorter term of
imprisonment”).

Fourth, the special conditions in Malenya’s case apply
for only three years. Contrast that limited term with the
lengthy terms of supervised release in some of our recent
cases involving sex offenders. See, e.g., United States v.
Accardi, 669 F.3d 340, 343-46 (D.C. Cir. 2012) (40 years);
United States v. Love, 593 F.3d 1, 5 (D.C. Cir. 2010) (life
term). The relatively short duration of Malenya’s term of
supervised release diminishes the overall impact of the special
conditions on Malenya’s liberty, and further shows that the
District Court was careful to impose special conditions that
were not more restrictive than “reasonably necessary.”

III

With those four overarching considerations in mind, I
turn now to specific analysis of the disputed special
conditions. Applying our deferential standard of review, I
would uphold all but one of the special conditions.

One group of disputed special conditions limits
Malenya’s ability to undertake certain activities: owning or
using a computer, accessing the Internet, contacting minors
directly, and working, volunteering, or residing with minors.
Importantly, however, Malenya is not banned from those
activities. Rather, Malenya must simply obtain the approval
of the United States Probation Office before engaging in any
of those activities.

Malenya’s probation officer will presumably exercise his
or her discretion in an appropriate manner befitting Malenya’s
 7
circumstances. As this Court has emphasized in a prior case,
we can “assume the Probation Office will reasonably exercise
its discretion” to lift a prohibition when that prohibition “no
longer serves the purposes of [the defendant’s] supervised
release.” United States v. Love, 593 F.3d 1, 12 (D.C. Cir.
2010). If the probation officer acts arbitrarily, such as in
policing Malenya’s use of a computer, Malenya may petition
the district court to modify the special conditions and cabin
the officer’s discretion. See 18 U.S.C. § 3583(e)(2); United
States v. Legg, 713 F.3d 1129, 1134 (D.C. Cir. 2013); United
States v. Padilla, 415 F.3d 211, 223 (1st Cir. 2005) (en banc).
With that point in mind, I do not believe that the District
Court abused its discretion in imposing those special
conditions.

Relatedly, Malenya contends that some of the terms in
the special conditions are impermissibly vague, including the
terms “close proximity” and “significant romantic
relationship.” But again, Malenya may consult with his
probation officer or, as appropriate, the district court
regarding the proper construction of those terms should
Malenya disagree with how they are applied in practice by the
probation officer. See United States v. Forde, 664 F.3d 1219,
1224-25 (8th Cir. 2012).

Another special condition forbids Malenya from using a
computer to view pornography. But that prohibition is hardly
onerous, and it is justified for an admitted sex offender by the
apparent “connection” that courts have recognized “between
pornography and sex crimes.” United States v. Laureys, 653
F.3d 27, 35 (D.C. Cir. 2011) (citing United States v.
Sebastian, 612 F.3d 47, 52 (1st Cir. 2010); Amatel v. Reno,
156 F.3d 192, 199-201 (D.C. Cir. 1998)).
 8
An additional special condition requires Malenya to
enroll in a sex offender treatment program. But that
requirement is manifestly appropriate for a contact sex
offender such as Malenya. Sex offender treatment programs
can reduce the risk of recidivism and allow clinical therapists
to supervise sex offenders during their reintegration into
society. Cf. McKune v. Lile, 536 U.S. 24, 33 (2002) (plurality
opinion) (“Therapists and correctional officers widely agree
that clinical rehabilitative programs can enable sex offenders
to manage their impulses and in this way reduce
recidivism.”).

Another special condition prohibits Malenya from
“entering into any area where children frequently
congregate.” Tr. Sentencing Hearing at 43, Aug. 20, 2012.
But that special condition certainly makes sense for a
defendant such as Malenya who has already tried to have sex
with someone he knew to be 14 years old. Malenya expresses
concern that this special condition would forbid many day-to-
day activities. But even if the condition were considered
problematic in the abstract, sensibly interpreted it applies only
to entering areas such as schools and children’s playgrounds
where children are commonly present in large numbers. It
cannot reasonably and should not be read to proscribe casual
or chance encounters or entering areas such as theaters or
shopping malls unless those venues are, for example, a
children’s theater or a mall catering specifically to children.
See United States v. Burroughs, 613 F.3d 233, 246 (D.C. Cir.
2010); see also Arciniega v. Freeman, 404 U.S. 4, 4 (1971).
Again, Malenya may consult with his probation officer if he
has questions.

To reiterate, moreover, my analysis of all of the special
conditions is buttressed by the surrounding circumstances
here: Malenya tried to have sex with a 14-year-old, the
 9
special conditions here are common (and thus have been
deemed reasonable by many district court judges) for sex
offenders, Malenya received a relatively short prison
sentence, and the length of the term of supervised release is
also relatively short. Therefore, I would uphold all of the
special conditions of supervised release, with one exception.
I would vacate the special condition that authorizes penile
plethysmograph testing. That procedure implicates
significant liberty interests and would require, at a minimum,
a more substantial justification than other typical conditions
of supervised release. See United States v. McLaurin, 731
F.3d 258 (2d Cir. 2013). Such a justification is not present on
this record. In light of the record in this case and the
significant liberty interests infringed by this invasive
procedure, I would vacate that one special condition.

IV

In vacating the special conditions, the majority opinion,
among other things, says that the District Court did not
sufficiently explain its reasoning for the special conditions.
But in imposing the sentence, including the special conditions
of supervised release, the District Court carefully and
painstakingly explained the Section 3553(a) sentencing
factors and how the competing considerations played out in
this case. Contrary to the suggestion in the majority opinion,
moreover, the District Court did not ignore mitigating factors.
The District Court stressed Malenya’s remorse, military
service, and lack of criminal history, and emphasized that this
was a “difficult case.” See Tr. Sentencing Hearing at 37-41,
Aug. 20, 2012. A review of the sentencing transcript shows
that the District Court grappled with and plainly understood
the relevant sentencing factors. As our precedents have
repeatedly said, although the district court must consider the
Section 3553(a) factors, it need not expressly address all of
 10
them at the sentencing hearing. See, e.g., United States v.
Brinson-Scott, 714 F.3d 616, 626 (D.C. Cir. 2013) (“[T]he
district court’s explanation did not invoke any of the section
3553(a) factors by name. But we do not require that it do so.
Sentencing, after all, is not a game of Simon Says.”); United
States v. Simpson, 430 F.3d 1177, 1186 (D.C. Cir. 2005). As
I read the record, the District Court did its job here and
committed no procedural error.

***

A 41-year-old man sought to have sex with someone he
knew to be 14 years old. That is a serious crime. With the
one exception described above, I would uphold the special
conditions imposed by the District Court. I respectfully
dissent.