FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-30017
Plaintiff-Appellee,
D.C. No.
v. 3:05-cr-00101-EJL-2
GERALD LYNN BAINBRIDGE,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
Argued and Submitted
December 4, 2013—Seattle, Washington
Filed March 6, 2014
Before: Sandra Day O’Connor, Associate Justice (Ret.),*
and Richard C. Tallman and Carlos T. Bea, Circuit Judges.
Opinion by Judge Bea
*
The Honorable Sandra Day O’Connor, Associate Justice (Ret.) for the
Supreme Court of the United States, sitting by designation.
2 UNITED STATES V. BAINBRIDGE
SUMMARY**
Criminal Law
The panel affirmed the district court’s order modifying
the conditions of the defendant’s supervised release to require
the defendant, who had completed his prison term for Assault
with Intent to Kidnap, to undergo a sexual deviancy
evaluation to determine whether additional supervised release
conditions were necessary.
The panel held that a district court can modify a
defendant’s conditions of supervised release pursuant to
18 U.S.C. § 3583(e)(2) even absent a showing of changed
circumstances, and that the district court did not abuse its
discretion by requiring a sexual deviancy evaluation for a
crime that did not constitute a “sex offense.” The panel
explained that given the nature of the offense admitted to in
the plea agreement, the district court did not abuse its
discretion when it concluded that a sexual deviancy
evaluation was reasonably related to the sentencing purposes
of deterrence, protection of society, as well as any treatment
that should be provided to the defendant.
COUNSEL
Matthew Campbell, Federal Defenders of Eastern
Washington & Idaho, Spokane, Washington, for Defendant-
Appellant.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. BAINBRIDGE 3
Wendy Olson, United States Attorney, Michael Mitchell,
Assistant United States Attorney, Coeur d’Alene, Idaho;
Syrena Hargrove, Assistant United States Attorney, Boise,
Idaho for Plaintiff-Appellee.
OPINION
BEA, Circuit Judge:
This case presents two questions: can a district court
impose a sexual deviancy evaluation as a condition of
supervised release when deviant sexual conduct was not an
element of the underlying crime of conviction? If so, is it
essential the Government prove a change in circumstances
since the original supervised release conditions were
imposed, to justify such an additional condition?
We hold that in the circumstances of this case, the sexual
deviancy evaluation can be so imposed, without proof of a
change in such circumstances.
Defendant Gerald Lynn Bainbridge (“Bainbridge”)
pleaded guilty to one count of Assault with Intent to Kidnap.
The district court sentenced Bainbridge to 97 months in jail,
followed by three years of supervised release. After
Bainbridge served his prison term, his Probation Officer
petitioned the district court to modify the conditions of his
supervised release. The government then filed a motion to
require Bainbridge to undergo a sexual deviancy evaluation
to determine whether the other additional conditions of
supervised release requested by the Probation Officer were
necessary. The district court granted the government’s
motion. Bainbridge appealed, claiming the district court did
4 UNITED STATES V. BAINBRIDGE
not have jurisdiction to modify the conditions of his
supervised release absent a change in circumstances and that,
assuming the district court had jurisdiction, the modification
was nonetheless unreasonable. We AFFIRM.
Background
On February 21, 2006, Bainbridge pleaded guilty to an
Information charging him with Assault with Intent to Kidnap.
In the plea agreement, Bainbridge admitted that he and his
co-defendant had been driving a motor home in Lapwai,
Idaho and offered a ride to a disabled female who was
walking on the side of the road. Bainbridge further admitted
that after the female entered the motor home, she:
was shoved onto a bed, her hands were bound
behind her back with duct tape, . . . [and
Bainbridge] drove the motor home away. . . .
[Bainbridge’s co-defendant] repeatedly raped
[the woman] . . . . [Bainbridge then] pulled the
motor home over and also engaged in sexual
acts with her. This included oral/genital,
genital/genital and anal/genital sexual
acts. . . . [Bainbridge] takes the position that
he did not understand it was against her will at
the time, however, understanding all the facts
and circumstances, [he] now understands and
accepts that these sexual acts were done
without [the victim’s] voluntary consent.
The government and Bainbridge agreed to a
recommended sentence of 97 months. On May 8, 2006, the
district court sentenced Bainbridge to 97 months
imprisonment followed by three years of supervised release.
UNITED STATES V. BAINBRIDGE 5
The district court also imposed a special condition of
supervised release: that Bainbridge register as a sex offender.
The district court stated that it was:
not going to at this point incorporate any of
those other sex offender [conditions] that
would normally be encompassed. If the
Probation department feels that is something
that needs to be addressed at a later time, they
can move the Court for a modification. But at
this time it is just the sex offender
[registration] laws that you are going to have
to comply with.
After Bainbridge served his prison term and began his
term of supervised release, Bainbridge’s Probation Officer
filed a petition with the district court to modify Bainbridge’s
conditions of supervised release. In particular, the petition
requested that the district court add the following conditions:
(1) that Bainbridge “participate . . . in an evaluation for sexual
deviancy by a qualified mental health professional,” at which
evaluation Bainbridge “agrees to waive any right to
confidentiality and allow the treatment provider to supply a
written report to the United States Probation Office”; (2) that
Bainbridge “successfully complete any course of treatment
related to his offense, as directed by the probation officer”;
(3) that Bainbridge “participate in polygraph testing . . . to
monitor his compliance with treatment conditions and
supervised release”; and (4) that Bainbridge minimize his
contact with minor children. Bainbridge opposed this
petition, and the government subsequently filed a motion
requesting that the district court require Bainbridge to
participate in a sexual deviancy evaluation so that the district
court “will be in a better position to evaluate whether [the
6 UNITED STATES V. BAINBRIDGE
other] additional conditions of supervised release are
necessary.”
On January 23, 2013, the district court granted the
government’s motion for a sexual deviancy evaluation in a
sealed order.1 United States v. Bainbridge, No. 3:05-CR-
00101 (D. Idaho Jan. 23, 2013). “Given the nature of the
underlying facts admitted to in the Plea Agreement,” the
district court found “it is reasonably related and necessary to
[the statutory sentencing purposes of deterrence, protection of
society, and treatment of the defendant] to order [Bainbridge]
to participate in a sexual deviancy evaluation in order to
determine whether the proposed modified conditions should
be imposed in this case.” Id. The next day, Bainbridge
timely filed a notice of appeal.
Standard of Review
Whether a district court has authority to modify
supervised release conditions is a question of law reviewed de
novo. United States v. Miller, 205 F.3d 1098, 1100 (9th Cir.
2000). This court reviews a district court’s imposition of
particular supervised release conditions for abuse of
discretion. United States v. Napulou, 593 F.3d 1041, 1044
(9th Cir. 2010).
1
Because the district court granted the government’s motion in a sealed
order, this opinion contains only content which has been made public
through non-sealed documents filed in the district court, or through the
parties’ non-sealed briefs or excerpts of records on appeal.
UNITED STATES V. BAINBRIDGE 7
Analysis
A. Jurisdiction to modify the conditions of supervised
release
18 U.S.C. § 3583(e) provides:
The [sentencing court] may, after considering
the factors set forth in section 3553(a)(1),
(a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5),
(a)(6), and (a)(7)2 . . . (2) . . . modify, reduce,
or enlarge the conditions of supervised
release, at any time prior to the expiration or
termination of the term of supervised release,
pursuant to the provisions of the Federal
Rules of Criminal Procedure relating to the
modification of probation and the provisions
applicable to the initial setting of the terms
and conditions of post-release supervision[.]
The applicable Federal Rule of Criminal Procedure, Rule
32.1(c), provides in part:
2
These factors include: (1) “the nature and circumstances of the offense
and the history and characteristics of the defendant”; (2) “the need for the
sentence imposed . . . to afford adequate deterrence to criminal conduct”;
(3) “the need for the sentence imposed . . . to protect the public from
further crimes of the defendant”; (4) “the need for the sentence imposed
. . . to provide the defendant with needed educational or vocational
training, medical care, or other correctional treatment in the most effective
manner”; (5) “the applicable guidelines or policy statements issued by the
Sentencing Commission”; (6) “any pertinent policy statement . . . issued
by the Sentencing Commission”; (7) “the need to avoid unwarranted
sentence disparities”; and (8) “the need to provide restitution to any
victims of the offense.” 18 U.S.C.§ 3553(a)(1), (a)(2)(B), (a)(2)(C),
(a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7).
8 UNITED STATES V. BAINBRIDGE
Before modifying the conditions of probation
or supervised release, the court must hold a
hearing, at which the person has the right to
counsel and an opportunity to make a
statement and present any information in
mitigation.
Bainbridge argues that absent a “change in
circumstances,” the district court lacked jurisdiction to
modify the conditions of his supervised release. To support
this argument, Bainbridge cites an advisory committee note
to Rule 32.1, which states that “[p]robation conditions should
be subject to modification, for the sentencing court must be
able to respond to changes in the probationer’s circumstances
as well as new ideas and methods of rehabilitation.” FED. R.
CRIM. P. 32.1, advisory committee’s note to 1979 addition.
Bainbridge also cites two Ninth Circuit cases, United States
v. Gross and United States v. Miller, for the proposition that
§ 3583(e) allows a sentencing court to modify the conditions
of supervised release in response to a change in a defendant’s
circumstances. 307 F.3d 1043, 1044 (9th Cir. 2002);
205 F.3d 1098, 1101 (9th Cir. 2000). However, Bainbridge
goes further and argues that these authorities permit a district
court to modify a probationer’s conditions of supervised
release only when (1) there exist “changed circumstances” or
(2) new ideas and methods of rehabilitation arise. Because
there have been no changes in Bainbridge’s circumstances
from his initial sentencing, and because the government does
not suggest that new ideas and methods of rehabilitation
motivated the district court’s action, Bainbridge contends that
the district court did not have jurisdiction to modify the terms
of his supervised release.
UNITED STATES V. BAINBRIDGE 9
This argument fails because the authorities cited by
Bainbridge do not limit the district court’s ability to modify
conditions of supervised release to situations in which there
is a change in circumstances or where new ideas and methods
of rehabilitation arise. The advisory committee’s note to FED.
R. CRIM. P. 32.1 cited by Bainbridge provides no support for
his argument. First, while an advisory committee’s note is
given “weight” in interpreting the Federal Rules of Criminal
Procedure, see United States v. Petri, 731 F.3d 833, 839 (9th
Cir. 2013) (stating that “‘the construction given by the
Committee [in the advisory committee’s notes to the Federal
Rules of Criminal Procedure] is ‘of weight’” and may be used
to “clarify any ambiguity”) (quoting Schiavone v. Fortune,
477 U.S. 21, 31 (1986)), an advisory committee’s note is not
part of the Rule itself. See Introductory Statement by
Advisory Committee on Rules of Criminal Procedure, Notes
to the Rules of Criminal Procedure for the District Courts of
the United States, 4 F.R.D. 405 (1944) (“The Notes are not to
be regarded as a part of the Rules. They have been prepared
without supervision or revision by the Supreme Court, and
are not approved or sponsored by the Court. They have no
official sanction and are intended merely as suggestions and
guides.”). As a result, an advisory committee’s note does not
have the force of law. See Moody Nat. Bank of Galveston v.
GE Life and Annuity Assurance Co., 383 F.3d 249, 253 (5th
Cir. 2004) (holding that advisory committee notes to the
Federal Rules of Appellate Procedure “do not have the force
of law”); Clark v. Long, 255 F.3d 555, 559 (8th Cir. 2001)
(holding the same with respect to the Federal Rules of Civil
Procedure); United States v. Sandini, 816 F.2d 869, 875 n.7
(3d Cir. 1987) (stating the same with respect to the Federal
Rules of Criminal Procedure). Moreover, Bainbridge does
not cite any authority for the proposition that an advisory
committee’s note may be used to read an additional
10 UNITED STATES V. BAINBRIDGE
requirement into a Rule. Absent such authority, we decline
to do so, especially where the Rule itself in no way suggests
that such a requirement exists. Cf. Tome v. United States,
513 U.S. 150, 168 (1995) (Scalia, J., dissenting) (“[T]he
[advisory committee’s] Notes [to the Federal Rules of
Evidence] cannot, by some power inherent in the draftsmen,
change the meaning that the Rules would otherwise bear.”).
Second, the advisory committee’s note itself, even if it
had the force of law, does not compel the conclusion that a
change in circumstances is a necessary, as opposed to a
sufficient, reason to give a district court authority to modify
conditions of supervised release. The mention of one
(changed circumstances) or two (new ideas and methods of
rehabilitation) situations in which a statute may be invoked
does not require the interpretation that one or the other are
essential to permit modification of the conditions of
supervised release, or are the exclusive bases thereof. In
particular, the advisory committee’s note to Rule 32.1 is not
subject to the negative implication canon (expressio unius est
exclusio alterius) because that canon can be applied “only
when the unius [changed circumstances or new ideas and
methods of rehabilitation] . . . can reasonably be thought to be
an expression of all that shares in the grant [supervised
release conditions are subject to modification] . . . involved.”
Justice Antonin Scalia and Bryan A. Garner, Reading Law,
107 (2012); see also, Chevron U.S.A. Inc. v. Echazabal,
536 U.S. 73, 81 (2002) (citing E. Crawford, Construction of
Statutes 337 (1940) for the proposition that “expressio unius
properly applies only when in the natural association of ideas
in the mind of the reader that which is expressed is so set over
by way of strong contrast to that which is omitted that the
contrast enforces the affirmative inference”) (internal
quotation marks omitted). Nothing in the advisory
UNITED STATES V. BAINBRIDGE 11
committee’s note suggests a limitation on the reasons for
modification to the two possibilities that the note mentions.
Therefore, the negative implication canon does not apply
here. Indeed, the canon is particularly inapplicable here
because district courts have broad discretion to modify
conditions of supervised release. See Miller, 205 F.3d at
1100 (stating that “the plain language of [18 U.S.C.
§ 3583(e)(2)] indicates that the district courts have broad
discretion to alter the conditions of a defendant’s supervised
release”); Gross, 307 F.3d at 1044 (explaining that the district
court has “broad authority to approve modification of the
conditions” of supervised release).
Likewise, both Miller and Gross stand for the proposition
that a change in circumstances may serve as a sufficient basis
upon which a district court may modify the conditions of
supervised release. However, neither Miller nor Gross
suggest that a change in circumstances is necessary for a
district court to modify such conditions. See United States v.
Murray, 692 F.3d 273, 279 (3d Cir. 2012) (“Neither the Ninth
[Circuit in United States v. Miller] nor the Second Circuit [in
United States v. Lussier,3 104 F.3d 32 (2d Cir. 1997)] has
3
Contrary to Bainbridge’s assertion, the Second Circuit’s decision in
United States v. Lussier does not suggest that changed circumstances are
a prerequisite to modify conditions of supervised release. 104 F.3d 32 (2d
Cir. 1997). In Lussier, the Second Circuit did not confront the issue
before this Court: namely, whether changed circumstances are required
before a district court may modify conditions of supervised release.
Rather, the Lussier court held simply that “the illegality of a condition of
supervised release is not a proper ground for modification under
[18 U.S.C. § 3583(e)(2)].” Id. at 34. The defendant in Lussier was
convicted in federal court of various banking crimes and was required to
pay restitution as a condition of his supervised release. Id. at 33. He
appealed his conviction and sentence, but did not challenge the restitution
order. Id. After the Second Circuit affirmed the conviction and sentence,
12 UNITED STATES V. BAINBRIDGE
gone so far as to describe a showing of new or unforeseen
circumstances as necessary or a prerequisite to modification.
Thus, we might say that these courts have merely described
conditions that are sufficient, but not necessary, to justify
modification.”).4
the defendant filed a motion with the district court to rescind the
restitution order under 18 U.S.C. § 3583(e)(2), arguing that the district
court should modify that condition of his supervised release because it was
“illegal.” Id. The district court “concluded that it lacked the authority
under subsection 3583(e)(2) . . . to modify the restitution order on the
ground of illegality.” Id. at 34. The Second Circuit affirmed.
While the Lussier court did broadly discuss the circumstances
pursuant to § 3583(e)(2) under which modification of supervised release
conditions is permissible and did state that “new circumstances may arise
that require a longer term or harsher conditions of supervised release,”
nothing in that decision supports Bainbridge’s claim that changed
circumstances are required prior to the modification of supervised release
conditions. Id. at 36. Indeed, the Lussier court went on to state that the
district court could not modify the defendant’s conditions of supervised
release under § 3583(e)(2) because the defendant’s challenge did “not
involve changed circumstances or affect in any way general punishment
aims such as deterrence, rehabilitation, and proportionality.” Id. at 36
(emphasis added). The Lussier court’s use of the disjunctive strongly
suggests that it believed that changed circumstances were a sufficient, but
not necessary, justification for modification of the conditions of
supervised release. It also suggests that “deterrence” and “rehabilitation”
were separate grounds for modification. Given Bainbridge’s actions as set
forth in the plea agreement, ante at 4, those grounds would support the
additional supervised release condition.
4
The Murray court also noted that “the statute that permits modification
of supervised release conditions, 18 U.S.C. § 3583(e)(2), makes no
mention of any new or changed circumstances requirement—an omission
which leads us to doubt that such a requirement exists.” 692 F.3d at 279.
“Nevertheless,” the court determined that it “need not resolve [any
apparent] circuit split today” because the government had shown changed
circumstances. Id.
UNITED STATES V. BAINBRIDGE 13
Rather, the question whether a change in circumstances
is required for a district court to modify conditions of
supervised release appears to be an issue of first impression
in the Ninth Circuit.5 While the Ninth Circuit in Miller stated
that “the plain language of [18 U.S.C. § 3583(e)(2)] indicates
that the district courts have broad discretion to alter the
conditions of a defendant’s supervised release,” that decision
did not address whether modification of supervised release
conditions was permissible absent changed circumstances.
205 F.3d at 1100. Still, at least two other Circuits have ruled
that a change in circumstances is not required for a district
5
Contrary to the government’s implication in its Answering Brief, our
decision in United States v. King did not determine whether a change in
circumstances is required for a district court to modify conditions of
supervised release. 608 F.3d 1122 (9th Cir. 2010). King was convicted
of possessing cocaine with the intent to distribute and sentenced to a
prison term to be followed by supervised release. Id. at 1124. Once King
finished his prison term and began to serve his term of supervised release,
King’s probation officer moved the district court to modify King’s
conditions of supervised release, alleging that King had committed seven
violations of his initial conditions of supervised release. Id. At a
preliminary revocation hearing, “King’s probation officer asked the
district court to modify King’s supervised release conditions until the full
revocation hearing.” Id. The district court refashioned the probation
officer’s suggested temporary modification, and King did not object. Id.
at 1125–26. On appeal, King argued, inter alia, that “the district court
violated his due process rights at the initial revocation hearing when it
modified his supervised release conditions pending the full revocation
hearing.” Id. at 1130. This Court rejected King’s claim, noting first that
“King did not object to the refashioned condition” at the preliminary
revocation hearing. Id. The panel went on to reject King’s argument
based on Federal Rule of Criminal Procedure 32.1(c), noting that rule
“does not require an evidentiary hearing or a violation finding.” Id.
However, the panel did not address whether 18 U.S.C. § 3583(e)(2) itself,
or the advisory committee notes accompanying Rule 32.1(c), required a
finding of changed circumstances before a district court could modify a
defendant’s supervised release conditions.
14 UNITED STATES V. BAINBRIDGE
court to modify conditions of supervised release: the Eighth
Circuit in United States v. Davies, 380 F.3d 329 (8th Cir.
2004); and the Tenth Circuit in United States v. Begay,
631 F.3d 1168 (10th Cir. 2011).6
In so ruling, the Begay court emphasized that:
By its terms, [§ 3583(e)(2)] does not require
a district court to make particular findings—
such as a finding of changed circumstances—
prior to modifying the terms of supervised
release. In contrast, subsections (e)(1)
[termination of supervised release] and (e)(3)
[revocation of supervised release] do require
more specific determinations. Pursuant to
subsection (e)(1), a district court may
terminate a term of supervised release only “if
it is satisfied that such action is warranted by
the conduct of the defendant released and the
interest of justice. . . .” Pursuant to subsection
(e)(3), a district court may revoke a term of
supervised release only “if the court . . . finds
by a preponderance of the evidence that the
defendant violated a condition of supervised
release. . . .”
631 F.3d at 1171–72. We find this reasoning persuasive and
agree with the Begay court that a “changed circumstances”
requirement should not be read into § 3583(e)(2).
6
“Absent some good reason to do so, we are disinclined to create a
direct conflict with another circuit.” United States v. Larm, 824 F.2d 780,
784 (9th Cir. 1987).
UNITED STATES V. BAINBRIDGE 15
Indeed, “[t]he only statutory requirements for
modification [under § 3583(e)(2)] are that the district court
consider the listed § 3553(a) factors, follow the procedure
outlined in FED. R. CRIM. P. 32.1 [which requires a hearing
and provides for the right to counsel], and ensure that the
modified conditions are consistent with the requirements
applicable to all conditions of supervised release.” Id. at
1172.7 Moreover, § 3583(e)(2) permits a district court to
modify the conditions of supervised release “at any time prior
to the expiration or termination of the term of supervised
release.” 18 U.S.C. § 3583(e)(2) (emphasis added).
We therefore agree with the Eighth and Tenth Circuits
and hold that a district court can modify a defendant’s
conditions of supervised release pursuant to 18 U.S.C.
§ 3583(e)(2) even absent a showing of changed
circumstances. Although it may be “inefficient to omit
important conditions and later, upon further reflection,
petition the court to incorporate such conditions, the relevant
7
The Begay court also rejected Begay’s argument that § 3582(e)(2)
“must be read in light of . . . well-entrenched interests in the finality of
judgments,” concluding that:
As regards the imposition of conditions of supervised
release, it is arguable that a district court is in a more
informed position to evaluate a defendant’s conditions
of release immediately prior to a defendant’s release
rather than at the time of sentencing. . . . A policy
favoring finality does not require us to read a changed
circumstances requirement into 18 U.S.C.
§ 3583(e)(2).”
631 F.3d at 1173. We agree with the Begay court in this respect.
16 UNITED STATES V. BAINBRIDGE
statutes and rules do not prohibit such practice.” Davies,
380 F.3d at 332.8
8
Bainbridge also argues that the law of the case doctrine precludes the
district court from modifying the terms of his supervised release. While
the law of the case doctrine does require lower courts to “follow the
mandate of a higher court after remand on appeal, . . . when the law of the
case doctrine is applied by a court to its own prior decisions [as
Bainbridge argues here] . . . the doctrine is properly characterized as
discretionary in nature.” 18 Moore’s Federal Practice, § 134.21 (3d ed.
1997). Indeed, this Court has stated:
the effect of the doctrine is not dispositive, particularly
when a court is reconsidering its own judgment, for the
law of the case directs a court’s discretion, it does not
limit the tribunal’s power. In other words, there is
nothing in the Constitution of the United States to
require [invocation of the doctrine], or to prevent a
[court] from allowing a past action to be modified while
a case remains in court.
Gonzalez v. Arizona, 624 F.3d 1162, 1186 (9th Cir. 2010) (quotation
marks and citations omitted). Here, when the district court sentenced
Bainbridge, it stated: “If the Probation department feels that [additional
conditions are] something that needs to be addressed at a later time, they
can move the Court for a modification.” In such circumstances, we
conclude that the law of the case doctrine does not bar the district court
from reconsidering the conditions of Bainbridge’s supervised release.
Likewise, Bainbridge’s argument that the government waived its
ability to request modifications to his supervised release conditions fails
because he cites no authority on point. Moreover, the plain language of
18 U.S.C. § 3583(e)(2) states that a district court may modify . . . the
conditions of supervised release, at any time prior to the expiration or
termination of the term of supervised release.” (emphasis added). We
therefore find that the government did not waive its ability to request a
modification of the conditions of Bainbridge’s supervised release.
UNITED STATES V. BAINBRIDGE 17
B. The district court’s order modifying the conditions of
supervised release does not constitute error.
Bainbridge next argues that the district court abused its
discretion when it modified the conditions of his supervised
release. Under 18 U.S.C. § 3583(e)(2), the district court
“may modify, reduce, or enlarge the conditions of supervised
release, at any time prior to the expiration or termination of
the term of supervised release” provided that the district
court: (1) “consider[s] the factors in section 3553(a)(1),
(a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and
(a)(7)”; (2) abides by the provisions of FED. R. CRIM. P.
32.1(c), which require a hearing and provide for the right to
counsel; and (3) follows “the provisions applicable to the
initial setting of the terms and conditions of post-release
supervision.” 18 U.S.C. § 3583(e)(2); Begay, 631 F.3d at
1171. With respect to this last requirement, 18 U.S.C.
§ 3583(d), which governs the initial setting of the conditions
of supervised release, permits such conditions if they: (1) “are
reasonably related to the factors set forth in section
3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D)”; 9
(2) “involve[] no greater deprivation of liberty than is
reasonably necessary to achieve” the goals of deterrence,
protection of the public, and defendant rehabilitation; and
(3) are “consistent with any pertinent policy statements issued
by the Sentencing Commission.” 18 U.S.C. § 3583(d);
United States v. Wolf Child, 699 F.3d 1082, 1090 (9th Cir.
2012).
9
As noted above, 18 U.S.C. § 3583(e)(2) requires district courts to
consider these four factors in addition to four additional factors when
determining whether to modify conditions of supervised release.
18 UNITED STATES V. BAINBRIDGE
A “condition of supervised release does not have to be
related to the offense of conviction because the sentencing
judge is statutorily required to look forward in time to crimes
that may be committed in the future by the convicted
defendant.” United States v. Blinkinsop, 606 F.3d 1110, 1119
(9th Cir. 2010). Moreover, “the district court [generally]10
need not state at sentencing the reasons for imposing each
condition of supervised release, if it is apparent from the
record.” United States v. Becker, 682 F.3d 1210, 1213 (9th
Cir. 2012) (citing United States v. Rudd, 662 F.3d 1257,
1261–62 (9th Cir. 2011)) (internal quotation marks omitted).
The only modification at issue in this appeal is the district
court’s order that Bainbridge participate in a sexual deviancy
evaluation “in order for the Court to properly determine
whether the [additional] proposed conditions are appropriate
to impose.” Bainbridge, slip op. at 4. Bainbridge argues that,
assuming the district court had jurisdiction to modify the
conditions, the modification granted was nonetheless
unreasonable. However, Bainbridge cites no authority for the
proposition that the district court abused its discretion by
ordering the sexual deviancy evaluation. Instead, Bainbridge
recites the requirements for modifications of supervised
release terms under 18 U.S.C. § 3583(e)(2), as discussed
above, and conclusorily states that:
10
As we stated in Wolf Child, “there is an exception [to this general rule]
for conditions of supervised release that implicate a ‘particularly
significant liberty interest.’” 699 F.3d at 1090. In such cases, “the district
court must support its decision to impose the condition on the record with
record evidence that the condition of supervised release sought to be
imposed is necessary to accomplish one or more of the factors listed in
[18 U.S.C.] § 3583(d)(1) and involves no greater deprivation of liberty
than is reasonably necessary.” Id. (internal quotation marks omitted).
UNITED STATES V. BAINBRIDGE 19
There was no basis for concluding that the
condition was necessary. Rather, it appears
that the government was on a fishing
expedition based on speculation. In other
words, the government was guessing that
something might come from the evaluation,
which would then provide a basis for
modifying the conditions.
Bainbridge also argues that:
The Sentencing Commission’s policy
statements suggest that a Court consider
“treatment and monitoring of sex offenders”
only when “the instant offense of conviction
is a sex offense.” U.S.S.G. § 5D1.3(d)(7).
Mr. Bainbridge was in fact convicted of
assault with intent to kidnap. While the facts
certainly indicated sexual misconduct, the
parties elected to proceed on a non-sex
offense charge, and the District Court elected
not to apply these conditions at sentencing.
However, U.S.S.G. § 5D1.3(d) provides that “[t]he following
‘special’ conditions of supervised release are recommended
in the circumstances described and, in addition, may
otherwise be appropriate in particular cases.” (emphasis
added). Moreover, as noted above, a “condition of supervised
release does not have to be related to the offense of
conviction because the sentencing judge is statutorily
required to look forward in time to crimes that may be
committed in the future by the convicted defendant.”
Blinkinsop, 606 F.3d at 1119. Therefore, the district court did
not abuse its discretion merely by requiring a sexual deviancy
20 UNITED STATES V. BAINBRIDGE
evaluation for a crime that did not constitute a “sex
offense.”11
To the contrary, the record shows that the district court
properly followed the requirements of 18 U.S.C. § 3583(e)(2)
in modifying Bainbridge’s conditions of supervised release to
include the requirement that Bainbridge submit to a sexual
deviancy evaluation. In particular, the district court
considered “the nature and circumstances of the offense”
(§ 3553(a)(1)), the need for deterrence (§ 3553(a)(2)(B)), the
need to protect the public (§ 3553(a)(2)(C)), and the need to
provide the defendant with the most effective treatment
(§ 3553(a)(2)(D)) when it stated:
The facts admitted to in the Plea Agreement
involve the Defendant having engaged in a
violent assault upon the victim. At the
11
In his Reply Brief, Bainbridge argues that “the condition [requiring
him to undergo a psychosexual evaluation] involves a particularly
significant liberty interest.” As such, he suggests that the condition should
be subject to the heightened standard of review required of other
conditions which affect “significant liberty interests.” However,
Bainbridge has waived this argument because he did not raise it in his
Opening Brief. See Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994).
Moreover, the Ninth Circuit has “conclude[d] that Abel testing [a form of
psychosexual evaluation which involves showing subjects a series of
slides and monitoring the amount of time they attend to each slide] does
not implicate a particularly significant liberty interest, and thus does not
require the district court to make [] heightened findings.” United States
v. Stoterau, 524 F.3d 988, 1006 (9th Cir. 2008); see also United States v.
Daniels, 541 F.3d 915, 926 (9th Cir. 2008). Because Bainbridge has not
presented any authority which would compel this Court to determine that
requiring a sexual deviancy evaluation implicates a “significant liberty
interest,” and we have likewise found no such authority, we decline to do
so here.
UNITED STATES V. BAINBRIDGE 21
sentencing the Court recognized several times
its concern regarding the risk the Defendant
posed to society given the seriousness of the
offense. . . . The Court finds such evaluation
of the Defendant is proper here because such
a condition is reasonably related, necessary,
and appropriate to the statutory sentencing
purposes given the violent sexual abuse that
occurred in this case. In particular, the
evaluation is reasonably related to the
sentencing purposes of deterrence, protection
of society, as well as any treatment that
should be provided to the Defendant.
Bainbridge, slip op. at 4–5 (citations omitted).
Given the nature of the offense admitted to in the plea
agreement, the district court did not abuse its discretion when
it concluded that a sexual deviancy evaluation was
“reasonably related to the sentencing purposes of deterrence,
protection of society, as well as any treatment that should be
provided to the Defendant.” See United States v. Hinkson,
585 F.3d 1247, 1251 (9th Cir. 2009). In particular, the sexual
deviancy evaluation may reveal that certain types of therapy
or treatment are necessary—and should be required per the
Probation Officer’s second requested condition of supervised
release—to prevent future sexual assaults of the kind
involved in Bainbridge’s crime of conviction. Moreover,
Bainbridge cites no authority that would suggest that
requiring a sexual deviancy evaluation in these circumstances
would involve a “greater deprivation of liberty than is
reasonably necessary to achieve” those goals. 18 U.S.C.
§ 3583(d). Indeed, the district court noted that “in order for
the Court to properly determine whether the proposed
22 UNITED STATES V. BAINBRIDGE
conditions [other than the sexual deviancy evaluation] are
appropriate to impose in this case, the requested sexual
evaluation is necessary.” In this way, the district court
appears to have ordered the sexual deviancy evaluation, in
part, to protect Bainbridge’s liberty interests by making sure
that further conditions were necessary before ordering them.
Finally, Bainbridge does not suggest any pertinent policy
statements issued by the Sentencing Commission which
would support his contention that such a sexual deviancy
evaluation was not warranted in the present circumstances.
Therefore, the district court did not abuse its discretion
when it ordered Bainbridge to undergo a sexual deviancy
evaluation to determine whether additional supervised release
conditions were necessary.
Conclusion
For the foregoing reasons, we conclude that the district
court had jurisdiction to modify Bainbridge’s conditions of
supervised release, despite the lack of changed circumstances.
We also find that the district court did not abuse its discretion
by requiring Bainbridge to undergo a sexual deviancy
evaluation as a condition of his supervised release.
Therefore, we AFFIRM the district court’s order.