FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 07-50242
Plaintiff-Appellee,
v. D.C. No.
CR-06-00096-SGL
HARRY JOHN DANIELS,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Stephen G. Larson, District Judge, Presiding
Argued and Submitted
March 6, 2008—Pasadena, California
Filed August 29, 2008
Before: J. Clifford Wallace, Ronald M. Gould, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Wallace
11985
UNITED STATES v. DANIELS 11989
COUNSEL
Sean K. Kennedy, Federal Public Defender, and Kathryn A.
Young, Deputy Federal Public Defender, Los Angeles, Cali-
fornia, for the defendant-appellant.
11990 UNITED STATES v. DANIELS
Thomas P. O’Brien, United States Attorney, Christine C.
Ewell and Joseph N. Akrotirianakis, Assistant United States
Attorneys, Los Angeles, California, for the plaintiff-appellee.
OPINION
WALLACE, Circuit Judge:
Daniels appeals from the sentence he received after plead-
ing guilty to possessing child pornography in violation of 18
U.S.C. § 2252A(a)(5)(B). He challenges the length and sev-
eral conditions of his lifetime term of supervised release. We
affirm in part, and vacate and remand in part.
I
In August 2004, special agents of the Federal Bureau of
Investigation (FBI) were investigating the distribution of child
pornography over the internet through online chat groups.
After identifying a group whose members traded child por-
nography over the internet, the FBI traced the online identity
of one group member to Daniels in Upland, California. In
September 2004, the FBI executed a federal search warrant
for Daniels’ Upland residence. Daniels made two statements
to the FBI in which he admitted that he was a member of the
subject group, that he participated in the group in a female
persona, that on several occasions he had downloaded child
pornography from the internet and uploaded child pornogra-
phy to the internet, and that he had child pornography saved
on his computer hard drive and on computer diskettes in his
home.
FBI agents seized a computer, 223 diskettes, three compact
discs, three videotapes, and eleven file folders of documents
belonging to Daniels. A search of these media revealed thou-
sands of images and videos of child pornography, and exam-
UNITED STATES v. DANIELS 11991
iners at the National Center for Missing and Exploited
Children determined that these thousands of images included
659 images depicting identified victims of child sexual abuse.
In exchange for Daniels’ agreement to plead guilty to a
single-count information alleging possession of child pornog-
raphy and to waive certain appellate rights, the government
agreed not to prosecute Daniels for violations of 18 U.S.C.
§ 2252A(a)(1)-(4) or (6) which would have charged him with
receipt, distribution, reproduction, advertisement, promotion,
solicitation, or sale of child pornography, or possession with
intent to sell child pornography. The plea agreement stated
that the maximum sentence included ten years of imprison-
ment and a lifetime period of supervised release. As part of
the plea agreement, Daniels consented to several conditions of
supervised release related to the use of computers and the
internet. The district court accepted the plea agreement.
The Probation Office filed its Presentence Report (PSR) on
Daniels and recommended a lifetime term of supervised
release, observed that the lifetime term was warranted by
applicable statutory provisions, and recommended incarcera-
tion within the sentencing guidelines. The PSR reasoned that
Daniels’ interest in child pornography over a number of years,
his desire to protect his illegal pornographic images, and “an
unknown clinical risk assessment of his behavior” all sup-
ported the imposition of the lifetime term. The government’s
sentencing memorandum agreed with the Probation Office’s
recommendations and with the justification for the recom-
mendations.
Daniels objected to the lifetime term and certain special
conditions of supervised release, arguing that they were
unreasonable and that they did not comport with the govern-
ing statutory requirements. In response, the Probation Office
reiterated that a lifetime term of supervised release was neces-
sary:
11992 UNITED STATES v. DANIELS
Because the defendant has carefully controlled the
type of information provided to the Court as to his
psychological condition and orientation, a lifetime
term of supervised [release] is necessary for protec-
tion of the community, as a truly independent risk
assessment has not been conducted. Perhaps even
more compelling is that such a term is needed to
meet the goal of ensuring adequate rehabilitative
treatment. The issues underlying sex offenses are
typically deeply ingrained and require life long man-
agement. Should the defendant be able to demon-
strate to the Court during the term of supervised
release that all the underlying clinical truths as to his
condition have been identified and ameliorated, the
defendant can apply for an early termination of his
supervised release.
Most of the argument at the sentencing hearing related to
the term of imprisonment. The lifetime term of supervised
release and special conditions of release were not brought up
by either party. The district court ultimately imposed a 51-
month sentence of imprisonment, below the low-end of the
advisory Guidelines range. Although Daniels’ opening brief
challenged his term of imprisonment as unreasonable, he
withdrew that argument in his reply brief. The district court
also imposed a lifetime term of supervised release with sev-
eral special conditions, including those to which Daniels had
consented in the plea agreement and others for which he had
not waived appellate rights. Daniels timely appealed, chal-
lenging the length of his term of supervised release as well as
several of its special conditions.
II
We first address Daniels’ challenges to the district court’s
imposition of a lifetime term of supervised release. The length
of Daniels’ term of supervised release is part of his sentence
and is reviewed for reasonableness. See United States v. Cope,
UNITED STATES v. DANIELS 11993
527 F.3d 944, 950 (9th Cir. 2008). “On appeal, we first con-
sider whether the district court committed significant proce-
dural error, then we consider the substantive reasonableness
of the sentence.” United States v. Carty, 520 F.3d 984, 993
(9th Cir. 2008) (en banc).
[1] Daniels argues that the lifetime term must be reversed
because the district court failed to explain its reasons for its
imposition in violation of 18 U.S.C. § 3553(c), which pro-
vides that “[t]he court, at the time of sentencing, shall state in
open court the reasons for its imposition of the particular sen-
tence.” Failure to explain adequately the sentence selected can
be procedural error. See Carty, 520 F.3d at 993. The Supreme
Court has explained that section 3553(c) requires a sentencing
court to “set forth enough to satisfy the appellate court that
[it] has considered the parties’ arguments and has a reasoned
basis for exercising [its] own legal decisionmaking authority.”
Rita v. United States, 127 S. Ct. 2456, 2468 (2007). “What
constitutes a sufficient explanation will necessarily vary
depending upon the complexity of the particular case, whether
the sentence chosen is inside or outside the Guidelines, and
the strength and seriousness of the proffered reasons for
imposing a sentence that differs from the Guidelines range. A
within-Guidelines sentence ordinarily needs little explanation.
. . .” Carty, 520 F.3d at 992. No lengthy explanation is neces-
sary if “the record makes clear that the sentencing judge con-
sidered the evidence and arguments.” Rita, 127 S. Ct. at 2469.
It is true, as Daniels argues, that the sentencing court did
not expressly state its reasons for imposing the lifetime term
of supervised release during the sentencing hearing. The sen-
tencing hearing simply did not focus on the term of super-
vised release and focused instead on the term of
imprisonment. Neither party brought it up, although Daniels
was given ample opportunity to do so when both he and his
counsel were asked if they had anything to add to the discus-
sion. Despite the district court’s silence on the specific issue
of the term of supervised release, however, we are satisfied
11994 UNITED STATES v. DANIELS
that the record shows that the court considered the arguments
and evidence that Daniels had submitted and chose to reject
those arguments and impose the Guidelines-recommended
lifetime term of supervised release.
[2] The PSR and the government’s sentencing memoran-
dum both discussed the reasons for recommending a lifetime
term of supervised release, and Daniels challenged that rec-
ommendation in his own sentencing memorandum. At the
opening of the sentencing hearing, the judge stated,
The court has also received [the PSR], as well as the
recommendations of the probation officer and the
pre-sentence investigation report. I’ve received the
government’s initial position, the defendant’s posi-
tion regarding sentencing factors, and then the gov-
ernment’s response to the defendant’s sentencing
memorandum on the defendant’s position. I’ve read
all of the exhibits; the report from the treating thera-
pists and doctors; the letters, Mr. Daniels’ letters;
and the various other information that you submitted
concerning sentencing issues and placement issues.
From this record, it is clear that the sentencing court was
aware of Daniels’ objection to the recommended term of
supervised release and had considered Daniels’ arguments
and evidence before making its decision. See Carty, 520 F.3d
at 996 (reasoning that when a sentencing judge “stated that he
reviewed the papers” and “the papers discussed the applicabil-
ity of § 3553(a) factors,” we can assume that the judge con-
sidered the relevant factors). Certainly the district court could
have said more to explain its decision, as did the district court
in Cope, 527 F.3d at 951-52, but such a lengthy explanation
is not always necessary. Indeed, as we recently stated in
Carty, “[a]n explanation communicates that the parties’ argu-
ments have been heard, and that a reasoned decision has been
made. It is most helpful for this to come from the bench, but
adequate explanation in some cases may also be inferred from
UNITED STATES v. DANIELS 11995
the PSR or the record as a whole.” 520 F.3d at 992. Here, the
PSR and record as a whole communicate that the district court
heard and rejected Daniels’ arguments. Furthermore, the dis-
trict court expressly stated that its sentence was based upon
consideration of the sentencing factors enumerated in 18
U.S.C. § 3553(a). The district court did not commit proce-
dural error.
[3] Daniels also argues that the lifetime term of supervised
release is substantively unreasonable because it improperly
restricts Daniels’ First Amendment rights and because it
involves a greater deprivation of liberty than is necessary to
meet the goals of supervised release. Substantive reasonable-
ness is reviewed “in light of all the 18 U.S.C. § 3553(a) [sen-
tencing] factors, including the applicable Guidelines range.”
United States v. Cantrell, 433 F.3d 1269, 1280 (9th Cir.
2006). While we have not adopted a presumption of reason-
ableness for a within-Guidelines sentence, we “abide by the
Supreme Court’s admonition that ‘when the judge’s discre-
tionary decision accords with the Commission’s view of the
appropriate application of § 3553(a) in the mine run of cases,
it is probable that the sentence is reasonable.’ ” Carty, 520
F.3d at 994 (quoting Rita, 127 S. Ct. at 2465).
[4] 18 U.S.C. § 3583(k) authorizes a term of supervised
release of “not less than 5 [years], or life” for offenses involv-
ing a minor victim, including possession of child pornography
in violation of 18 U.S.C. § 2252A. The Sentencing Guidelines
also provide that “the length of the term of supervised release
shall not be less than the minimum term of years specified for
the offense . . . and may be up to life, if the offense is a sex
offense.” U.S.S.G. § 5D1.2(b)(2). An accompanying policy
statement recommends the maximum term of supervised
release for a sex offense. See id. Application Note 1 to section
5D1.2 defines possession of child pornography as a sex
offense.
[5] The Probation Office recommended a lifetime term of
supervised release in part based on this policy statement,
11996 UNITED STATES v. DANIELS
which reflects the judgment of Congress and the Sentencing
Commission that a lifetime term of supervised release is
appropriate for sex offenders in order to protect the public.
See H.R. Rep. 107-807, 2003 WL 131168 (discussing lifetime
supervised release for sexual offenders). This policy recom-
mendation was a factor in our decision to uphold a lifetime
term of supervised release in Cope, 527 F.3d at 952: “[t]he
lifetime term is also reasonable in light of the ‘pertinent pol-
icy statement’ issued by the Sentencing Commission, which
recommends the maximum term of supervised release for sex
offenses” (internal citations omitted). The recommendation
was also based on Daniels’ “stated interest in child pornogra-
phy over a number of years; his strong desire to protect the
child pornography images . . . ; and an unknown clinical risk
assessment.” Additionally, the Probation Office pointed out
the importance of a lifetime term of supervised release in
rehabilitating Daniels because “[t]he issues underlying sex
offenses are typically deeply ingrained and require life long
management.”
[6] Daniels does not question that the lifetime term is rea-
sonably related to his offense of conviction or to his back-
ground, but argues that because he “had never posed a threat
to anyone,” the deprivation of liberty involved is greater than
necessary to protect the public and prevent recidivism.
Although, unlike the defendant in Cope, Daniels has no prior
sex offense convictions, the district court was not obligated to
accept his assertion that he “never posed a threat to anyone,”
or to rely on a report he submitted that the Probation Office
found was “based almost exclusively on [Daniels’] self-
interested self-reporting.” See United States v. Rearden, 349
F.3d 608, 620 (9th Cir. 2003) (“Although [defendant] testified
that his sexual interest in children was strictly fantasy . . . , the
district court was entitled not to accept his version of the
facts”). The Probation Office was concerned that “a truly
independent risk assessment” was never conducted on Daniels
because he “carefully controlled the type of information pro-
vided to the Court,” and both the Probation Office and the
UNITED STATES v. DANIELS 11997
court were concerned that Daniels “lack[ed] . . . insight into
his problems.” The court was also concerned about Daniels’
“addictive behavior,” which contributed significantly to his
offense conduct.
[7] Additionally, as the district court reminded Daniels at
sentencing, merely possessing child pornography is not a vic-
timless crime; it fuels the demand for the creation and distri-
bution of child pornography. The government presented
evidence of the harm that children suffer when they are used
in the creation of child pornography and when that pornogra-
phy is distributed to others. A lifetime term of supervised
release was warranted in order to ensure that Daniels does not
relapse into his addictive behavior and again begin collecting
child pornography. The district court was within its discretion
to conclude that a lifetime term of supervised release was nec-
essary to punish Daniels for his crime, to rehabilitate him, and
to protect the public from future crimes by Daniels.
Daniels’ constitutional argument focuses on the fact that
several conditions of supervised release restrict his access to
computers and the internet which, if imposed for an entire
lifetime, he argues, improperly restrict his First Amendment
rights. However, as he admits, Daniels agreed to those condi-
tions in his plea agreement. Contrary to Daniels’ assertion, the
plea agreement expressly informed him that the district court
could impose a sentence up to a lifetime of supervised release.
At his change of plea hearing, Daniels was again reminded
that he could receive a lifetime term of supervised release,
and he stated that he understood the maximum penalties to
which he was subject. As Daniels expressly agreed to the con-
ditions knowing that a lifetime term of supervised release
might be imposed, he has waived his right to challenge them.
His First Amendment argument is therefore meritless.
III
[8] Daniels next challenges a number of the conditions of
supervised release imposed by the district court. We review
11998 UNITED STATES v. DANIELS
the district court’s decision to impose conditions of super-
vised release for an abuse of discretion. United States v.
Weber, 451 F.3d 552, 557 (9th Cir. 2006). In applying this
standard of review, “we give considerable deference to a dis-
trict court’s determination of the appropriate supervised
release conditions,” recognizing that “a district court has at its
disposal all of the evidence, its own impressions of a defen-
dant, and wide latitude.” Id. (internal quotation marks omit-
ted). District courts may impose conditions of supervised
release “if they are reasonably related to the goal of deter-
rence, protection of the public, or rehabilitation of the
offender, and involve no greater deprivation of liberty than is
reasonably necessary for the purposes of supervised release.”
Rearden, 349 F.3d at 618 (internal quotation marks omitted);
see also 18 U.S.C. § 3583(d). “Circuit law establishes that a
sentencing judge is not required to articulate on the record at
sentencing the reasons for imposing each condition of super-
vised release, where we can determine from the record
whether the court abused its discretion.” United States v.
Betts, 511 F.3d 872, 876 (9th Cir. 2007) (internal quotation
marks and footnote omitted). However, to impose a condition
that implicates a significant liberty interest, the district court
must support its decision on the record with evidence justify-
ing the condition. United States v. Williams, 356 F.3d 1045,
1055-57 (9th Cir. 2004).
A.
Condition six of Daniels’ supervised release states that he
“shall participate in a psychological/psychiatric counseling
and/or a sex offender treatment program, which may include
inpatient treatment as approved and directed by the treatment
provider. [Daniels] shall abide by all rules, requirements, and
conditions of such program, including submission to risk
assessment evaluation(s) and physiological testing, and shall
take all medication deemed by the treatment provider to be
necessary for rehabilitative purposes.” Daniels raises several
objections to this condition.
UNITED STATES v. DANIELS 11999
[9] First, he points out that although the written judgment
requires Daniels to submit to physiological testing, the tran-
script of the sentencing hearing states only that he must sub-
mit to psychological testing. The difference between
physiological and psychological testing is significant because
physiological testing contemplates Abel and polygraph test-
ing, which are not otherwise specified in Daniels’ conditions
of supervised release. Compare United States v. Stoterau, 524
F.3d 988, 1003 n.6 (9th Cir. 2008) (observing that the differ-
ence between “psychological” and “physiological” in that
case was immaterial because the conditions expressly speci-
fied that the defendant would have to submit to polygraph and
Abel testing). Daniels argues that this court must therefore
amend the written judgment to delete the condition requiring
physiological testing, because “[w]hen there is a discrepancy
between an unambiguous oral pronouncement of a sentence
and the written judgment, the oral pronouncement controls.”
United States v. Fifield, 432 F.3d 1056, 1059 n.3 (9th Cir.
2005).
[10] Here, the source of the discrepancy between the writ-
ten judgment and the transcript of oral proceedings is unclear.
Daniels asserts that the court actually stated “psychological
testing” during the hearing and that the condition must there-
fore be revised to conform with the oral pronouncement, but
the government contends that discrepancy is a result of a mis-
transcription by the court reporter. The government’s position
seems plausible, given that the district court appears to have
been reading the special terms of supervised release directly
from the Probation Officer’s letter recommending physiologi-
cal testing. Because we cannot determine with certainty the
condition that was actually imposed at the sentencing hearing
and because the difference is significant insofar as physiologi-
cal testing contemplates Abel and polygraph testing whereas
psychological testing may not, we vacate this condition and
remand it to the district court. The district court can make any
change necessary so that the written judgment is in confor-
mity with the oral judgment, if the court remembers what that
12000 UNITED STATES v. DANIELS
judgment was. If not, the court may hold a new hearing on
that condition.
Second, Daniels argues that because the condition requiring
him to submit to physiological testing contemplates Abel and
polygraph testing, it is invalid because the district court did
not apply heightened scrutiny before imposing the condition
and because the condition involves a greater deprivation of
liberty than is reasonably necessary for the purposes of super-
vised release. Daniels also asserts that polygraph testing vio-
lates his Sixth Amendment rights, but he fails to assert this
position with any meaningful argument, so this objection to
the condition is waived. See Fed. R. App. P. 28(a)(9);
Ghahremani v. Gonzales, 498 F.3d 993, 997 (9th Cir. 2007).
Finally, he argues that insofar as the condition contemplates
polygraph testing, it violates his Fifth Amendment rights.
[11] These arguments are not new to us. In Stoterau, we
held that polygraph testing as a condition of supervised
release does not infringe on a defendant’s Fifth Amendment
rights because defendants retain such rights during polygraph
examinations. 524 F.3d at 1003-04; see also Weber, 451 F.3d
at 568 n.17; United States v. Antelope, 395 F.3d 1128, 1134-
41 (9th Cir. 2005). We have also rejected Daniels’ argument
that polygraph conditions present constitutional concerns
under Miranda v. Arizona, 384 U.S. 436 (1966), and have
held that polygraph examinations pursuant to a condition of
supervised release do not constitute “custodial interrogation”
and do not therefore implicate Miranda. See Stoterau, 524
F.3d at 1004.
[12] We have similarly held against the challenges Daniels
raises to Abel testing: “Abel testing does not implicate a par-
ticularly significant liberty interest, and thus does not require
the district court to make the heightened findings” Daniels
requests. Id. at 1006. We also disagreed that Abel testing is
unreliable, holding that a “district court could reasonably con-
clude that the Abel test has value in rehabilitation and protec-
UNITED STATES v. DANIELS 12001
tion of the public as part of a treatment program for assessing
a sex offender’s interest in children.” Id. at 1007. Therefore,
here, as in Stoterau, we hold that the district court did not
abuse its discretion in imposing a condition of supervised
release that may require Daniels to submit to Abel and poly-
graph testing.
[13] Third, and finally, Daniels objects to the supervised
release condition that he “take all prescribed medication.” In
Cope, which was decided after Daniels was sentenced, we
held that certain medications such as anti-psychotic medica-
tions implicate significant liberty interests and that to impose
a condition requiring a defendant to take those types of medi-
cations, a district court must make “ ‘on-the-record,
medically-grounded findings that court-ordered medication is
necessary to accomplish one or more of the factors listed in
§ 3583(d)(1).’ ” 527 F.3d at 954 (quoting Williams, 356 F.3d
at 1057). We stated that “where, as here, a district court orders
a defendant to take ‘any’ or ‘all’ medication prescribed by
medical or other treatment personnel during his term of super-
vised release without making heightened Williams findings,”
the condition must “be understood as limited to those medica-
tions that do not implicate a particularly significant liberty
interest of the defendant.” Cope, 527 F.3d at 955. We
remanded “to permit the district court to make the necessary
. . . findings with regard to the condition requiring [defendant]
to ‘take all prescribed medication.’ ” Id. at 956. The district
court did not have the benefit of Cope when it sentenced Dan-
iels, and therefore we remand this condition to the district
court so that it can make necessary findings with respect to
the requirement that Daniels take all prescribed medication.
In sum, although we reject Daniels’ challenges to Condi-
tion six insofar as he objects its potential to submit him to
Abel and polygraph testing, we order a limited remand of this
condition so that the district court can either conform the writ-
ten judgment to the oral pronouncement or hold a new hearing
to decide whether “psychological” or “physiological” testing
12002 UNITED STATES v. DANIELS
will be imposed. We also remand so that an appropriate
record can be developed for the phrase mandating that Dan-
iels take all prescribed medication. If no such record is devel-
oped, the condition will be construed to be limited to
medications that do not implicate Daniels’ significant liberty
interests.
B.
[14] Condition seven provides that, “As directed by the
Probation Officer, the defendant shall pay all or part of the
costs of the defendant’s sex offender treatment or psychiatric
disorder. . . .” Daniels argues it is improper for a district court
to delegate to the Probation Officer such a responsibility;
however, he recognizes that this argument, which he failed to
raise in the district court, is foreclosed by United States v.
Dupas, 419 F.3d 916, 922-24 (9th Cir. 2005). See also Sto-
terau, 524 F.3d at 1007-08 (holding the district court did not
plainly err when it delegated to the probation officer the
power to direct the defendant to pay some or all of the costs
of treatment). The district court did not plainly err when it
imposed this condition.
C.
Condition eight prohibits Daniels from “possess[ing] any
materials, including pictures, photographs, books, writings,
drawings, videos, or video games, depicting and/or describing
‘sexually explicit conduct’ as defined in 18 U.S.C.
§ 2256(2).” Daniels objects to this condition, arguing that it
involves a greater deprivation of liberty than is reasonably
necessary, because Daniels was convicted only of simple pos-
session of child pornography, and that it violates the First
Amendment because the condition would apply to legal adult
pornography and even perhaps non-pornographic media with
sexual content. Daniels did not object to this condition in the
district court, and so we review for plain error. See United
States v. Ortiz, 362 F.3d 1274, 1278 (9th Cir. 2004).
UNITED STATES v. DANIELS 12003
[15] We approved a substantially similar condition in Rear-
den, where we held that the district court did not plainly err
in imposing the condition that the defendant “not possess any
materials depicting sexually explicit conduct as defined in 18
U.S.C. § 2256(2).” 349 F.3d at 619. We reasoned that “[a]
defendant’s right to free speech may be abridged to ‘effec-
tively address [his] sexual deviance problem,’ ” id. (citations
omitted) (alteration in original), even where the defendant
was convicted only of transmission of child pornography and
not of child molestation. Id. at 620. We have also held that the
phrase “sexually explicit conduct” is neither vague nor over-
broad. See id.; see also United States v. X-Citement Video,
Inc., 982 F.2d 1285, 1288-89 (9th Cir. 1992) (holding that
definition of “sexually explicit conduct” set forth in prior ver-
sion of 18 U.S.C. § 2256(2) survived vagueness and over-
breadth challenges), rev’d on other grounds, 513 U.S. 64
(1994).
[16] Daniels acknowledges that we upheld a similar condi-
tion in Rearden, but argues that his case is distinguishable
from Rearden because there the defendant was involved with
a co-defendant who was “a dangerous pedophile” and had an
“interest in extremely vile and graphic depictions of child
rape and murder.” Rearden, 349 F.3d at 620. However, we
hold that any distinction between the defendant in Rearden
and Daniels does not make the district court’s ruling plainly
erroneous. Neither defendant had a history of child molesta-
tion. The defendant in Rearden had an admitted interest in
depictions of child rape and murder; Daniels’ child pornogra-
phy collection included a number of “sadomasochistic images
of prepubescent children” and over 600 images depicting
identified victims of child sexual abuse. Also, although pursu-
ant to his plea agreement, Daniels was charged only with pos-
session of child pornography, he had admitted to uploading
child pornography onto the internet and participating in chat-
rooms discussing sexual activity with children. Finally, we
observe, as the district court continually reminded Daniels
during his sentencing hearing, that the possession of child
12004 UNITED STATES v. DANIELS
pornography itself facilitates the abuse of children by fueling
the demand for its production and distribution. Even if Dan-
iels does not pose a risk of sexually abusing children, he may
slip into old habits of amassing child pornography. In these
circumstances and based on the nature of Daniels’ offense, the
district court “did not plainly err in limiting [Daniels’] posses-
sion of materials depicting sexually explicit conduct because
the condition furthered the goals of rehabilitating him and
protecting the public.” Id.; see also United States v. Bee, 162
F.3d 1232, 1235 (9th Cir. 1998) (upholding similar condition
for a convicted sex abuser in order to promote rehabilitation
and protection of the public).
D.
Condition ten prohibits Daniels from “frequent[ing], or
loiter[ing], within 100 feet of school yards, parks, public
swimming pools, playgrounds, youth centers, video arcade
facilities, or other places primarily used by persons under the
age of 18.” Condition fourteen restricts his choice of housing,
stating that Daniels “shall not reside within direct view of”
such places. Daniels argues that because the government has
submitted “absolutely no evidence that Daniels has ever been
any danger to a minor,” these conditions are not reasonably
related to his offense of conviction or his personal back-
ground.
[17] Daniels did not object to this condition in the district
court, so we review for plain error. See Ortiz, 362 F.3d at
1278. We approved a similar condition on plain error review
in Rearden, 349 F.3d at 620. It is true that there the govern-
ment presented evidence “from which the district court could
conclude that [the defendant] posed a risk to children.” Id.
The defendant there also had an admitted life-long sexual
interest in children, “used news stories about child murders or
abductions to become sexually excited,” and had written and
“described in graphic detail the rape, abuse, and murder of
children.” Id. Here, by contrast, Daniels maintains that he has
UNITED STATES v. DANIELS 12005
no sexual interest in children but instead collected child por-
nography only so that he would have a comprehensive collec-
tion of pornography generally. However, the district court was
not required to believe Daniels’ self-serving statements, par-
ticularly where the Probation Office stated that no “indepen-
dent risk assessment” had been conducted. Moreover, there
was evidence before the district court suggesting that Daniels
did have a sexual interest in children, whether or not he had
acted on that interest. Besides the sheer volume of child por-
nography that Daniels had collected, organized, stored, and
distributed, Daniels had written emails about having engaged
in a sexually deviant lifestyle that included sex with children.
Even if Daniels was not actually a pedophile and had not
actually engaged in sexual acts with children, such evidence
suggested that he at least had a sexual interest in children and
that preventing his loitering around or living near areas where
children frequent was reasonably related to his offense of con-
viction and to the goals of rehabilitating Daniels and protect-
ing the public from his potential sexual interest in children.
As we recognized in Bee, which upheld similar restrictions on
loitering for a convicted sex abuser, “even very broad condi-
tions are reasonable if they are intended to promote the proba-
tioner’s rehabilitation and to protect the public.” 162 F.3d at
1236. The conditions here were so intended and there was no
plain error.
E.
Conditions eleven and twelve provide that, without prior
approval of the Probation Office, Daniels shall not be
employed by a business or organization “that causes him to
regularly contact persons under the age of 18,” or “whose
principal product is the production and/or selling of materials
depicting and/or describing ‘sexually explicit conduct,’ as
defined at 18 U.S.C. § 2256(2).” Daniels, for the first time on
appeal, challenges these restrictions as “improper occupa-
tional restrictions.”
12006 UNITED STATES v. DANIELS
[18] We approved almost identically-worded conditions in
Stoterau. 524 F.3d at 1009-10. In interpreting U.S.S.G.
§ 5F1.5, which requires heightened scrutiny of certain occu-
pational restrictions, we held “that the provision applies only
to restrictions on the specific occupation or occupations held
by the defendant prior to conviction.” Id. Here, neither condi-
tion restricts Daniels from engaging in his previous occupa-
tion as an insurance salesperson, and so neither condition is
an “occupational restriction” under section 5F1.5. Thus, Dan-
iels’ arguments with regard to U.S.S.G § 5F1.5 lack persua-
siveness, and the conditions here only have to meet the
requirements of 18 U.S.C. § 3583(d). We hold, on plain error
review, that they do. The restrictions on Daniels’ future
employment are reasonably related to the goals of deterrence,
rehabilitation, and protection of the public, given his potential
sexual interest in children. Furthermore, the restrictions are
not a “greater deprivation than is reasonably necessary” to
further these goals, because Daniels is not precluded from
resuming his work as an insurance salesperson. See Stoterau,
524 F.3d at 1010.
F.
[19] Finally, Daniels objects to the court’s authorization for
the Probation Officer to disclose the PSR and any previous
mental evaluations or reports to the treatment provider, and
for the treatment provider to provide information to state or
local service agencies for rehabilitative purposes. Daniels
contends this authorization violates the psychotherapist-
patient privilege recognized in Jaffee v. Redmond, 518 U.S. 1
(1996). Daniels’ argument is foreclosed by United States v.
Lopez, where we recognized that the psychotherapist-patient
evidentiary privilege is “beside the point of a supervised
release condition.” 258 F.3d 1053, 1057 (9th Cir. 2001); see
also Stoterau, 524 F.3d at 1011 (holding the district court did
not abuse its discretion in authorizing the limited disclosure
of the defendant’s PSR and mental health records). Here,
“[t]he district court could reasonably conclude that the limited
UNITED STATES v. DANIELS 12007
disclosure of [Daniels’] PSR and mental health evaluations
was necessary to facilitate his treatment and successfully
monitor his reintegration into society following his release
from prison.” Stoterau, 524 F.3d at 1011.
IV
For the above reasons, we AFFIRM the district court’s sen-
tence of a lifetime term of supervised release. We AFFIRM
the special conditions of release, with the exception of condi-
tion six. We VACATE and REMAND condition six to the
district court for a determination of whether the condition
requires Daniels to submit to psychological or physiological
testing, and to make specific findings concerning the medica-
tions that Daniels may be required to take.
AFFIRMED IN PART; VACATED AND REMANDED
IN PART.