FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 07-50293
v.
OPINION
FERNANDO ESPARZA,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding
Argued and Submitted
November 20, 2008—Pasadena, California
Filed January 20, 2009
Before: Susan P. Graber and Richard R. Clifton,
Circuit Judges, and David G. Trager,* District Judge.
Per Curiam Opinion
*The Honorable David G. Trager, Senior United States District Judge
for the Eastern District of New York, sitting by designation.
769
UNITED STATES v. ESPARZA 771
COUNSEL
James H. Locklin, Deputy Federal Public Defender, Los
Angeles, California, for the defendant-appellant.
Robert Charles Stacy, II, Assistant U.S. Attorney, Riverside,
California, for the plaintiff-appellee.
OPINION
PER CURIAM:
Defendant Fernando Esparza posted child pornography
online. The FBI executed a search warrant at his residence
and discovered hundreds of such images. Defendant pleaded
guilty to distribution of child pornography in violation of 18
U.S.C. § 2252A(a)(2)(A). The district court imposed a prison
sentence of 235 months and ordered lifetime supervised
release with certain conditions. Defendant timely appeals his
sentence. In this opinion, we consider only Condition 5 of the
terms of supervised release.1 We review for abuse of discre-
tion, United States v. Weber, 451 F.3d 552, 557 (9th Cir.
2006), and affirm in part, vacate in part, and remand.
1
We dispose of the remaining issues in a memorandum filed this date.
772 UNITED STATES v. ESPARZA
Condition 5 provides:
The defendant shall participate in a psychological/
psychiatric counseling and/or a sex offender treat-
ment program, which may include inpatient treat-
ment, as approved and directed by the Probation
Officer. The defendant shall abide by all rules,
requirements, and conditions, of such program,
including submission to risk assessment evalua-
tion(s), and physiological testing, such as polygraph
and Abel testing,[2] and shall take all prescribed
medication[.]
Defendant argues that the district court failed to make the req-
uisite findings at sentencing to justify two aspects of Condi-
tion 5: (1) the requirement that he take all prescribed
medication and (2) the requirement of physiological testing.
Defendant also argues that a third aspect of Condition 5—the
potential for inpatient treatment—involves an improper dele-
gation of judicial authority.
A. Requisite Findings at Sentencing
[1] “[A] district court is not generally required to articulate
on the record at sentencing the reasons for imposing each con-
dition” of supervised release.3 Weber, 451 F.3d at 559 (inter-
nal quotation marks omitted). If a condition of supervised
release “involves an especially significant liberty interest,”
2
“Abel testing, [a] procedure used in sexual offender treatment pro-
grams, involves presenting individuals with non-erotic pictures of children
and adults and determining sexual interest by measuring how long a per-
son spends viewing each picture.” Weber, 451 F.3d at 555 n.3 (internal
quotation marks omitted).
3
As we have observed previously, our rule differs from the rule in some
other circuits, which requires specific findings for each condition of super-
vised release. See Weber, 451 F.3d at 560 n.10 (citing United States v.
Loy, 191 F.3d 360, 371 (3d Cir.1999), and United States v. Edgin, 92 F.3d
1044, 1049 (10th Cir. 1996)).
UNITED STATES v. ESPARZA 773
however, the district court must make certain “specific find-
ings” justifying imposition of the supervised-release condi-
tion. Id. at 560. For example, a condition requiring a
defendant to take “psychotropic medication” involves an
especially significant liberty interest and, therefore, requires
the district court to make certain findings, as described in
United States v. Williams, 356 F.3d 1045, 1052-57 (9th Cir.
2004). But a condition requiring a defendant to take other
types of medications does not necessarily involve an espe-
cially significant liberty interest and may not require specific
findings. United States v. Cope, 527 F.3d 944, 955 (9th Cir.),
cert. denied, 129 S. Ct. 321 (2008).
[2] Here, Condition 5 requires Defendant to “take all pre-
scribed medication.” On its face, that condition encompasses
both categories of medication—those that require specific
findings and those that do not. In Cope and United States v.
Daniels, 541 F.3d 915 (9th Cir. 2008), we addressed the same
issue concerning an identically worded condition of super-
vised release and held that, in the absence of specific findings
by the district court, we would construe such a condition “ ‘as
limited to those medications that do not implicate a particu-
larly significant liberty interest of the defendant.’ ” Daniels,
541 F.3d at 926 (quoting Cope, 527 F.3d at 955). As the gov-
ernment concedes, those cases control here. Because the dis-
trict court did not have the benefit of Cope when it sentenced
Defendant, we also “remand this condition to the district court
so that it can make necessary findings with respect to the
requirement that [he] take all prescribed medication,” if the
court chooses to require Defendant to take medications impli-
cating a particularly significant liberty interest. Id.
[3] A similar analysis applies to the condition that Defen-
dant submit to “physiological testing, such as polygraph and
Abel testing.” A district court may require some forms of
physiological testing, including polygraph and Abel testing,
without making specific findings. Weber, 451 F.3d at 567-70.
Other forms of physiological testing, though, may not be
774 UNITED STATES v. ESPARZA
imposed without additional findings. Id. As with the medica-
tion requirement, the physiological testing requirement
encompasses both categories of testing—those that require
specific findings and those that do not. We therefore apply the
same reasoning and reach the same result. We hold that, in the
absence of specific findings, Condition 5 necessarily must be
understood as limited to those forms of physiological testing
that do not implicate a particularly significant liberty interest.
And, as in Cope and Daniels, the district court may, on
remand, make the necessary supporting findings insofar as
Condition 5 may require Defendant to undergo testing that
implicates a particularly significant liberty interest.
B. Delegation and Inpatient Treatment
[4] With respect to the inpatient treatment aspect of Condi-
tion 5, Defendant argues that the district court impermissibly
delegated judicial authority to the probation officer.
[W]here the [district] court makes the determination
of whether a defendant must abide by a condition,
and how (or, when the condition involves a specific
act such as drug testing, how many times) a defen-
dant will be subjected to the condition, it is permissi-
ble to delegate to the probation officer the details of
where and when the condition will be satisfied.
United States v. Stephens, 424 F.3d 876, 880 (9th Cir. 2005).
But “a probation officer may not decide the nature or extent
of the punishment imposed upon a probationer.” Id. at 881
(internal quotation marks omitted).
[5] Here, Condition 5 requires Defendant to participate in
a counseling or sex offender treatment program, “which may
include inpatient treatment, as approved and directed by the
Probation Officer.” (Emphasis added.)4 Thus, although the
4
We have held that a similar condition is not overbroad, Cope, 527 F.3d
at 956, but we have not addressed whether such a condition is an improper
UNITED STATES v. ESPARZA 775
court clearly mandated participation in a treatment program of
some sort, the decision whether Defendant would receive
inpatient or outpatient treatment is left to the discretion of the
probation officer. Defendant argues that inpatient treatment is
a condition different in kind from an outpatient program, such
that the probation officer would be deciding “the nature or
extent of the punishment” to be imposed. Stephens, 424 F.3d
at 881. The government counters that the district court
required psychological treatment and that the inpatient/
outpatient format is simply a decision about “where and when
the condition will be satisfied.” Id. at 880.
[6] We are persuaded by Defendant’s argument. In terms of
the liberty interest at stake, confinement to a mental health
facility is far more restrictive than having to attend therapy
sessions, even daily. Our conclusion in this regard is bolstered
by Congress’ recognition of procedural and substantive pro-
tections that apply to civil commitment to inpatient facilities.
E.g., 18 U.S.C. § 4248. Accordingly, we hold that, on remand,
the district court must strike from Condition 5 the phrase
“which may include inpatient treatment.”5
CONDITION 5 AFFIRMED in part, VACATED in part,
and REMANDED.
delegation of authority, see United States v. Stoterau, 524 F.3d 988, 1003
n.7 (9th Cir. 2008) (noting the issue, but declining to reach it), cert.
denied, ___ U.S.L.W. ___ (U.S. Jan. 12, 2009) (No. 08-7566).
5
We hold only that a district court may not delegate to the probation
officer the decision whether a defendant must be committed to inpatient
treatment. We express no view on the question whether a district court
could order mandatory inpatient treatment as a condition of lifetime super-
vised release.