In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐2239
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
BRIAN A. MILLER,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 13‐CR‐10098 — James E. Shadid, Chief Judge.
____________________
ARGUED FEBRUARY 25, 2016 — DECIDED JULY 14, 2016
____________________
Before BAUER, MANION, and KANNE, Circuit Judges.
KANNE, Circuit Judge. Defendant Brian Miller filmed at
least five minor girls undressing and showering using a hole
he made in his basement‐bathroom wall. After a bench trial,
the district court convicted him of twenty‐two counts of sex‐
ual exploitation of children. Miller appeals, arguing that
there was insufficient evidence to find that the videos he
created were “lascivious.” He also challenges various aspects
2 No. 15‐2239
of his sentence and conditions of supervised release. We af‐
firm.
I. BACKGROUND
Sometime before July 2011, Miller cut a hole through the
drywall from a basement utility room into the basement
bathroom. He scraped off part of the backing of the bath‐
room mirror and lined it up with the hole in the wall. He lat‐
er installed a clear shower curtain.
From July 2011 through May 2012, Miller used his cell
phone to take photos and videos of five different minor fe‐
males, aged twelve to sixteen, undressing and/or showering
in the basement bathroom. He specifically directed at least
two of the minors to shower in the basement bathroom in‐
stead of the other bathroom in his home. Miller would go
into the utility room and use his cell phone to film the girls
in the bathroom as they became either fully or partially
nude. One of the victims was half‐sister to Miller’s younger
son.
In November 2011, Miller’s older son discovered some
nude videos on Miller’s computer. His son confronted him,
and Miller told him that the female was Miller’s adult live‐in
girlfriend. Afterward, the computer disappeared, but Miller
continued to film minor females in the bathroom.
In June 2012, Miller’s son found the hole in the drywall
and confronted Miller again. Miller’s son left the home, at
which point Miller contacted police to report his son as miss‐
ing and out of control. After police located Miller’s son, he
told them about the videos and hole in the wall. On June 16,
2012, authorities executed a search warrant.
No. 15‐2239 3
On September 25, 2013, Miller was indicted on three
counts of attempted exploitation of children and twenty‐two
counts of sexual exploitation of children in violation of 18
U.S.C. § 2251(a). He consented to a bench trial. Miller’s de‐
fense was that the images were not a “lascivious exhibition
of the genitals” within the meaning of 18 U.S.C. § 2256(2)(A)
because they were “mere nudity.” After presentation of the
evidence, the government dismissed three counts of at‐
tempted exploitation of children.
The district court found Miller guilty of all remaining
counts. It rejected Miller’s argument that the videos were
mere nudity and did not draw attention to the girls’ genitals.
In rejecting Miller’s arguments, the district court relied on
the fact that Miller “took a number of steps before he could
even videotape,” including cutting the hole in the wall,
scraping off the mirror backing, lining up the holes, instruct‐
ing the girls to shower in the basement, filming from the
other side of the wall, and tracking the girls’ movements.
Those actions, the district court found, led to “only one rea‐
sonable inference from these facts, as to the purpose of Mil‐
ler’s actions and his mental state, and that is that he intended
to view the minor teenage girls for his own sexual arousal.”
The district court also rejected Miller’s argument that he had
not zoomed in on the girls’ pubic area, noting that “[t]here is
no requirement under the statute to focus only on the pubic
area, just that there is a focus on the pubic area.”
At sentencing, Miller faced a mandatory minimum of 180
months and at least 5 years of supervised release. The dis‐
trict court determined that he had an offense level of 39 and
a criminal history category of III, producing a guidelines
range of 324 to 405 months. After discussing the relevant
4 No. 15‐2239
sentencing factors, the district court sentenced Miller to a be‐
low‐guidelines sentence of 216 months’ imprisonment. It al‐
so imposed a 15‐year term of supervised release, which in‐
cluded three special conditions to which Miller objected.
The first objectionable condition was that Miller “notify
any individual or entity of any risk associated with his histo‐
ry.” In response to Miller’s argument that the condition was
vague and overbroad, the district court modified it to re‐
quire: “The defendant shall allow probation to notify any
individual(s) or entity of any risk associated with his history,
which would be incident to areas or people or agencies fre‐
quented or attended by minors.”
The second condition to which Miller objected was that
he “shall submit to physiological testing” because the testing
could lead to a violation of his right against self‐
incrimination. The district court overruled the objection, not‐
ing that Miller could invoke his right at the time an issue
arose during testing.
Miller’s third objection was to the condition that he not
have “contact with any person under the age of 18” unless it
is supervised, “in the course of normal commercial busi‐
ness,” or “unintentional incidental contact.” Miller argued
that the condition was improper because it applied to his
own children. The district court overruled the objection, not‐
ing that one of the victims is half‐sister to one of Miller’s
sons.
II. ANALYSIS
On appeal, Miller challenges his convictions, arguing that
there was insufficient evidence to find that the videos were
“lascivious.” He also challenges the length of his sentence
No. 15‐2239 5
and the imposition of three of the conditions of supervised
release. We reject Miller’s arguments.
A. Sufficiency of the Evidence of Lasciviousness
Miller’s primary contention on appeal is that the evi‐
dence at his trial was insufficient to sustain his convictions
for sexual exploitation of children.
“We review challenges to the sufficiency of the evidence
at a bench trial under the same demanding standard applied
to a jury trial.” United States v. Wasson, 679 F.3d 938, 949 (7th
Cir. 2012). That means “we will overturn the verdict only if
we conclude, after viewing the evidence in the light most fa‐
vorable to the prosecution, that no rational trier of fact could
have found the defendant guilty beyond a reasonable
doubt.” Id.
The government charged Miller with violations of 18
U.S.C. § 2251(a), which provides: “Any person who employs,
uses, persuades, induces, entices, or coerces any minor to
engage in, … with the intent that such minor engage in, any
sexually explicit conduct for the purpose of producing any
visual depiction of such conduct … shall be punished” by a
term of imprisonment of at least 15, but not more than 30,
years. 18 U.S.C. § 2251(a), (e). “Sexually explicit conduct”
means a “lascivious exhibition of the genitals or pubic area
of any person.” § 2256(2)(A)(v).
The word “lascivious,” however, is undefined in the stat‐
ute, and we have offered limited instruction on its definition.
Because lascivious means “tending to arouse sexual desire,”
Webster’s Third New Int’l Dictionary, “more than nudity is
required to make an image lascivious.” United States v.
Griesbach, 540 F.3d 654, 656 (7th Cir. 2008); United States v.
6 No. 15‐2239
Russell, 662 F.3d 831, 843 (7th Cir. 2011). Instead, we require
that “the focus of the image must be on the genitals or the
image must be otherwise sexually suggestive.” Griesbach, 540
F.3d at 656.
Aside from those principles,1 the question of whether an
image is lascivious “is left to the factfinder to resolve, on the
facts of each case, applying common sense.” Russell, 662 F.3d
at 843. We need only decide whether the evidence was suffi‐
cient to support a finding that there was an “exhibition” of
the pubic area that was “lascivious.”
We look first to the videos themselves. In each of the vid‐
eos forming the basis for a count of conviction, the minor’s
nude pubic area is visible, supporting the conclusion that
there was an “exhibition” of the pubic area. See United States
v. Price, 775 F.3d 828, 836–40 (7th Cir. 2014) (“Exhibition … is
a showing or presenting to view.” (internal quotation marks
omitted)). Elements of the videos also support a finding of
lasciviousness. The videos depict minors nude in the shower
and sometimes undressing prior thereto. As we have de‐
scribed before, “showers and bathtubs are frequent hosts to
fantasy sexual encounters as portrayed on television and in
1 We acknowledge that there is a “test” for lasciviousness that comes
from United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986). Neither the
government nor Miller advocates our adoption of the Dost factors, and
we have discouraged its mechanical application. See United States v. Price,
775 F.3d 828, 839–40 (7th Cir.2014) (“This case does not require us to de‐
termine whether the Dost factors are always or never permissible, but we
do take this opportunity to discourage their routine use.”). Resolution of
this case does not require adoption of Dost, so we decline to do so.
No. 15‐2239 7
film.” United States v. Schuster, 706 F.3d 800, 808 (7th Cir.
2013) (internal quotation marks omitted).
Miller argues that the videos do not support a finding
that he “focused” on the genitals because the girls’ entire
bodies were in the videos, and he did not “zoom in” on the
pubic area. There is no requirement in the statute that the
creator zoom in on the pubic area. Nor is there a require‐
ment that the pubic area be the sole focus of the depiction.
Determining the focus of a depiction or whether it is “oth‐
erwise sexually suggestive” is properly left to the fact finder.
Griesbach, 540 F.3d at 656.
Miller also seizes on the district court’s statement that it
“viewed the videos and to me … , these videos after viewing
them are simply naked teenage minor girls.” According to
Miller then, the videos cannot be lascivious because they de‐
pict “mere nudity.” Fact finders are not constrained, howev‐
er, to the four corners of these videos to find that they were
lascivious. Instead, the finder of fact may look to the crea‐
tor’s intent in making these videos, at which point it is clear
that there was sufficient evidence to support a finding of las‐
civiousness. See Russell, 662 F.3d at 843.
Miller argues that relying on his intent is impermissible
because “there is no intent prong in the statute.”2 (Appellant
2 We assume that Miller is arguing that there is no intent prong in the
meaning of the word “lascivious,” not the entire statute. To the extent
that he suggests there is no intent prong in the statute as a whole, he is
also incorrect. It criminalizes a person who uses a minor, “with the intent
that such minor engage in, any sexually explicit conduct for the purpose of
producing any visual depiction of such conduct.” 18 U.S.C. § 2251(a)
(emphasis added).
8 No. 15‐2239
Br. 18.) Miller is wrong. Of course there is an element of in‐
tent embodied in an evaluation of whether an image is las‐
civious. If there were not, the statute would criminalize a
mother taking a picture of her child in the bathtub or a doc‐
tor taking a picture of a minor patient’s pubic area for a med‐
ical diagnosis. In both of those situations, the creator may be
intending to take a photograph of an “exhibition” of the mi‐
nor’s pubic area, but not a “lascivious” one. Whether the im‐
age “arouses sexual desire” is informed by the intent of the
person creating the image.
That is not to say that the creator’s subjective intent may
be wholly divorced from the image created.3 But the two do
go hand‐in‐hand. Subjective intent—particularly of the crea‐
tor—is a relevant, and quite probative, consideration. “Alt‐
hough the primary focus in evaluating the legality of the
3 We agree with Miller in the general proposition that the subjective in‐
tent of the viewer cannot be the only consideration in a finding of lascivi‐
ous. The statute does not criminalize Sears’s catalogs because they are in
the hands of a pedophile. That is why courts have cautioned against the
sole use of the viewer’s subjective intent in evaluating lasciviousness:
We must, therefore, look at the photograph, rather than
the viewer. If we were to conclude that the photographs
were lascivious merely because [the defendant] found
them sexually arousing, we would be engaging in con‐
clusory bootstrapping rather than the task at hand—a
legal analysis of the sufficiency of the evidence of lasciv‐
iousness.
United States v. Villard, 885 F.2d 117, 125 (3d Cir. 1989). Here, both the
videos themselves and Miller’s subjective intent as the viewer and creator
inform the conclusion that the videos of the nude minors constitute a
lascivious exhibition of the pubic area.
No. 15‐2239 9
charged photographs must be on the images themselves, the
cases reveal that the intent and motive of the photographer
can be a relevant consideration in evaluating those images.”
Russell, 662 F.3d at 843 (citations omitted).
Miller’s intent is clear. He took substantial steps in modi‐
fying his basement, instructing girls to use the downstairs
bathroom, and filming them in the shower. The steps Miller
took to surreptitiously create the images undermine an in‐
ference that there was a legitimate purpose to his video pro‐
duction. Cf. United States v. Holmes, 814 F.3d 1246, 1252 (11th
Cir. 2016) (“[A] lascivious exhibition may be created by an
individual who surreptitiously videos or photographs a mi‐
nor and later captures or edits a depiction, even when the
original depiction is one of an innocent child acting inno‐
cently.”). Instead, the reasonable inference drawn by the fact
finder is that he was creating the videos because they sexual‐
ly excite him.
There were also videos introduced at trial of Miller en‐
gaged in intercourse with adult females, a video of a nude
adult female in the bathroom, and a video of Miller mastur‐
bating while watching homemade pornography. These vide‐
os support the district court’s finding that the filming of
these nude minors was for the purpose of sexual arousal. See
United States v. Raney, 342 F.3d 551, 558 (7th Cir. 2003) (find‐
ing homemade adult pornography relevant to the defend‐
ant’s “intent to manufacture child pornography depicting
identical acts”). And finally, after Miller’s son found the vid‐
eos the first time, Miller lied to cover up his behavior, sup‐
porting the reasonable inference that his videos were not
made for a legitimate purpose. Cf. Russell, 662 F.3d at 837
10 No. 15‐2239
(noting that the defendant “told [the minors] not to tell their
mother”).
Therefore, we find that the evidence is sufficient to sus‐
tain a conviction for sexual exploitation of children by the
creation of a depiction that includes a lascivious exhibition
of the genitals. See United States v. Johnson, 639 F.3d 433, 441
(8th Cir. 2011) (reinstating jury verdict and finding evidence
of lasciviousness sufficient where the defendant set up a
camera and then instructed female weightlifters to weigh
themselves in the nude).
B. Term of Imprisonment
Next, Miller challenges his below‐guidelines sentence of
18 years’ imprisonment as both procedurally unsound and
substantively unreasonable. It is not.
We first review whether there was a procedural error in
sentencing de novo. United States v. Annoreno, 713 F.3d 352,
356–57 (7th Cir. 2013). If we are satisfied that there was no
procedural error, we then review the substantive reasona‐
bleness of the sentence for an abuse of discretion. Id.
For the procedural challenge, we make sure that the dis‐
trict court calculated the correct guidelines range, considered
the 18 U.S.C. § 3553(a) factors, and adequately explained the
chosen sentence. Id. at 357. A district court is not required,
however, to enumerate and provide an explanation for each
§ 3553(a) factor. United States v. Rodriguez‐Alvarez, 425 F.3d
1041, 1047 (7th Cir. 2005). Instead, “we regularly affirm sen‐
tences where the district judge does not explicitly mention
each mitigation argument raised by the defendant,” United
States v. Paige, 611 F.3d 397, 398 (7th Cir. 2010), as long as it
gave “meaningful consideration to the relevant factors in
No. 15‐2239 11
light of the individual circumstances of the case.” United
States v. Grigsby, 692 F.3d 778, 791 (7th Cir. 2012) (internal
quotation marks omitted).
Miller argues that the district court committed procedur‐
al error by not considering all of the § 3553(a) factors. He
claims that “there is no evidence or reference suggesting that
[Miller] is a particular danger to others, has a high likelihood
of recidivism, or that treatment would likely be unsuccess‐
ful” and that “[t]he court did not address whether there was
a less restrictive means to satisfy the seriousness of the of‐
fense, promote respect for the law, provide adequate deter‐
rence, or protect the public.” (Appellant Br. 26.)
We may swiftly reject Miller’s stock argument. Although
the district court did not explicitly list each § 3553(a) factor, it
gave meaningful consideration to the relevant factors. It con‐
sidered that Miller had made a sincere apology, was re‐
morseful, and had a limited criminal history. It contrasted
that, however, with the seriousness of Miller’s offense, in
particular the detrimental effect on the victims. It also con‐
sidered the circumstances of the offense, which required ex‐
tensive preparation including cutting a hole, scraping off the
mirror, and filming over a long period of time, explaining
that Miller’s conduct was far worse than just a “lapse in
judgment.” Given that discussion, the district court did not
commit a procedural error in its consideration of the
§ 3553(a) factors.
Because there was no procedural error, we next evaluate
the substantive reasonableness of Miller’s sentence. Because
“[i]t is hard to conceive of below‐range sentences that would
be unreasonably high,” United States v. George, 403 F.3d 470,
473 (7th Cir. 2005), there is a nearly irrebuttable presumption
12 No. 15‐2239
that a below‐range sentence is reasonable. See United States v.
Jackson, 598 F.3d 340, 345 (7th Cir. 2010) (“We have never
deemed a below‐range sentence to be unreasonably high.”
(internal quotation marks omitted)).
Miller has not rebutted that presumption. In fact, he has
offered no specific arguments as to why the sentence the dis‐
trict court imposed should have been different. He balks at
being labeled a “felon,” having to “register as a sex offender,
face restrictions on where he can live, [and] face restrictions
on the jobs he can work.” (Appellant Br. 27–28 (citations
omitted).) But Miller does not explain how any of these limi‐
tations make his sentence unreasonable. Had the district
court sentenced him to the statutory mandatory minimum of
15 years, Miller would still be subject to these same limita‐
tions. Miller’s objections to the stigma of his conviction are
insufficient grounds for finding that the sentence imposed is
unreasonable.
Miller next argues that after considering “the likelihood
to reoffend, the option of treatment, the ability to supervise
[Miller] in a less restrictive setting than the Federal Bureau of
Prisons, and many others, the district court did impose a
sentence greater than necessary.” (Id. at 28–29.) But Miller
does not explain how any of those considerations make his
below‐guidelines sentence unreasonable. Are we to take him
at his word that he is not likely to reoffend? The opposite
conclusion is quite reasonable given that Miller continued to
videotape minor girls even after his son caught him doing so.
Finally, Miller asks us to consider the punishment he
would have received had he been charged in state court. Ac‐
cording to Miller, in Illinois, he would have been guilty of
“unauthorized video recording,” 720 ILCS 5/26‐4, which is
No. 15‐2239 13
punishable by 2–5 years’ imprisonment. He argues that “[i]t
is difficult to reasonably reconcile the possible punishment
administered by the State of Illinois as compared to the
mandatory minimum sentence of 15 years required to be
imposed in federal court.” (Appellant Br. 29.) We disagree.
Miller was convicted of sexual exploitation of children,
not unauthorized video recording. It is strange to suggest
that those two offenses are comparable in seriousness. Mil‐
ler’s argument only reinforces the district court’s concern
that Miller “think[s] that maybe these young people weren’t
victims because they didn’t know that they were the subject
of your viewing or videotaping.” Miller is free to express his
concern about the federal mandatory minimum sentence to
Congress. His concern does not, however, make his below‐
guidelines sentence unreasonable.
C. Conditions of Supervised Release
Miller also challenges three conditions of his supervised
release: (1) notification of risk; (2) no contact with minors;
and (3) submission to physiological testing.
We review any conditions to which the defendant object‐
ed in the district court for an abuse of discretion. United
States v. Poulin, 809 F.3d 924, 930 (7th Cir. 2016). Any condi‐
tions uncontested in the district court are reviewed only for
plain error. Id.
1. Notification of Risk
The district court, in response to Miller’s objection, modi‐
fied the notification‐of‐risk condition to require that Miller
“allow probation to notify … areas or people or agencies fre‐
quented or attended by minors” of “any risk associated with
[Miller’s] history.”
14 No. 15‐2239
Miller, parroting United States v. Thompson, 777 F.3d 368,
379 (7th Cir. 2015), first argues that the condition is vague
because it is not clear what “history” and “risk” mean. Our
case law has been critical of vague terms like “risk.” But our
criticism has been guided by the principle that a defendant
“is entitled to special conditions that generally apprise him
of what conduct is lawful and what could land him back in
prison for violating his supervised release conditions.” Unit‐
ed States v. Adkins, 743 F.3d 176, 193 (7th Cir. 2014).
There is no such problem here. To comply with this con‐
dition of supervised release, Miller does not have to do any‐
thing besides give permission to probation to notify third
parties. The only way Miller could violate the condition is by
withholding consent. That requirement is not vague.
Relying on United States v. Bonnano, Miller next argues
that the condition is an improper delegation of authority to
probation. 146 F.3d 502, 511 (7th Cir. 1998). Bonnano is inap‐
posite. In Bonnano, we held that the district court could not
delegate to probation the discretion to determine the number
of random drug tests the defendant had to take. Id. at 510–
11. The delegation was improper because the statute author‐
izing drug tests “requires that the court determine the num‐
ber of drug tests to which the defendants must submit.” Id.
at 511; see also 18 U.S.C. § 3583(d). There is no similar statuto‐
ry requirement with respect to the notification‐of‐risk condi‐
tion.
Furthermore, the district court limited the discretion of
probation in response to Miller’s vagueness objection. It lim‐
ited notification to places “frequented or attended by mi‐
nors” and indicated that it was thinking of “day camps,
camps, scouting, little leagues, those types of things.” Alt‐
No. 15‐2239 15
hough we disapprove of conferring “probation officers with
essentially unlimited discretion[,] … at some point, we must
fairly presume [the defendant]’s probation officer will apply
the conditions in a reasonable manner.” United States v.
Kappes, 782 F.3d 828, 857 (7th Cir. 2015) (third alteration in
original) (citation and internal quotation marks omitted). We
think the district court gave sufficient instructions for the
probation officer to exercise his discretion to determine the
places that may need to be notified of the risk Miller poses to
minors. Cf. United States v. Bloch, No. 15‐1648, 2016 WL
3361724, at *10 (7th Cir. June 17, 2016) (finding district court’s
explanation of the term “elsewhere” to mean “a ‘public
place,’ such as a Starbuck’s coffee shop” provided probation
with sufficient guidance). Should the probation officer abuse
his discretion in making those determinations, Miller may
bring that to the district court’s attention. Kappes, 782 F.3d at
857–58.
2. No Contact with Minors
Miller also challenges the condition that he not have any
contact with “any person under the age of 18” unless it is
supervised, “in the course of normal commercial business,”
or “unintentional incidental contact.” The district court re‐
fused to make an exception for children related to Miller be‐
cause one of the victims was the half‐sister of his younger
son.
Miller argues that the condition interferes with his right
to familial association. We note first that Miller is serving an
18‐year term of imprisonment, so any minor children he may
have now will no longer be minor age upon his release from
custody. To the extent that Miller quibbles with the condition
because of hypothetical minor female relatives, we think the
16 No. 15‐2239
condition is substantially justified given that one of the vic‐
tims was related to him. With respect to hypothetical minor
male relatives, Miller’s argument is “too contingent to be
ripe for review.” See Kappes, 782 F.3d at 859.
Miller’s remaining arguments with respect to the no‐
contact condition were not raised to the district court, and so
we review them for plain error only. Miller argues that he
“cannot be sure whether contact covers incidental contact”
and that he “cannot know whether this is a strict liability
condition.” (Appellant Br. 34.)
The condition expressly excludes from the no‐contact
provision any “unintentional incidental contact.” If Miller is
confused as to whether the condition covers incidental con‐
tact, he need only read the condition. The same goes for the
mens rea requirement; unintentional contact is excluded from
the no‐contact provision.
Miller also argues that the word “contact” is unreasona‐
bly vague because he “cannot be sure whether contact is
physical contact, contact by telephone, and/or contact by
email or letter.” (Id. at 34.) Uncertainty regarding the method
of contact is quite different from our prior cases invalidating
no‐contact provisions. See, e.g., Thompson, 777 F.3d at 376. In
Thompson, we emphasized that the condition would crimi‐
nalize incidental and unintentional contact—a concern alle‐
viated in this case by the district court’s modification. We did
not, however, take issue with “contact” being vague or over‐
broad with respect to the method of contact, nor has Miller
cited any cases where we have. That is because it is not
vague; the condition prohibits all contact. Different methods
of contact are still contact.
No. 15‐2239 17
Miller’s final challenge to the no‐contact provision is that
it is overbroad because it prohibits him from contacting mi‐
nor males and prepubescent females, even though there is
no evidence that he is attracted to either group. We agree
with Miller that this one aspect of the condition is overbroad.
But Miller has not established “that a failure to correct [the
error] would jeopardize the fairness, integrity, or public rep‐
utation of the criminal proceedings,” United States v. Silvious,
512 F.3d 364, 371 (7th Cir. 2008), and so he has not justified
vacating his sentence. This is not a case where multiple er‐
rors in the conditions of supervised release occurred, and so
we decline to vacate Miller’s sentence for correction of this
error, especially in light of the fact that Miller is not without
a remedy: Miller is free to request modification of the condi‐
tion pursuant to 18 U.S.C. § 3583(e)(2).
3. Physiological Testing
The final condition of supervised release that Miller chal‐
lenges is the one requiring him to submit to physiological
testing to the extent ordered by his Sex Offender Treatment
Program. He argues that the condition is “impermissibly
vague, overbroad, and unnecessary,” “a greater than neces‐
sary deprivation on his liberty,” and “not sufficiently tied
to … § 3553,” in large part because it may subject him to ple‐
thysmograph testing. (Appellant Br. 32.) Miller also argues
that physical testing may infringe his ability to exercise his
Fifth Amendment right against self‐incrimination.
We rejected arguments similar to Miller’s in Kappes, 782
F.3d at 855. We held that any challenge to the hypothetical
testing the defendant may be forced to undergo “involves
too many contingencies to make the issue ripe for review.”
Id. We also rejected Miller’s argument with respect to invok‐
18 No. 15‐2239
ing Fifth Amendment rights, explaining that “[a] defendant
on supervised release retains the privilege to invoke his Fifth
Amendment rights.” Id. at 855–56.
Miller offers no reason why we should not hold that his
speculative challenges are not ripe. The closest he comes is
by implying that his probation officer would unfairly inter‐
pret this condition of supervised release so that he could re‐
voke his supervised release and relieve himself of supervis‐
ing Miller during the time he is back in prison. We believe
that is an unfair characterization of probation officers gener‐
ally and should not constitute grounds for this court to con‐
sider speculative concerns about supervised‐release condi‐
tions. Should Miller be given a vindictive probation officer
whose sole goal is to return him to prison, we expect that he
would bring that to the district court’s attention.
III. CONCLUSION
For the foregoing reasons, we AFFIRM Miller’s convic‐
tion, terms of imprisonment and supervised release, and
conditions of supervised release.