United States v. Koch

FILED
United States Court of Appeals
Tenth Circuit

October 9, 2020
PUBLISH Christopher M. Wolpert
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v. No. 19-8034
DANIEL AARON KOCH,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
(D.C. NO. 1:18-CR-00167-ABJ-1)

Dean Sanderford, Assistant Federal Public Defender (Virginia L. Grady, Federal
Public Defender, with him on the briefs), Denver, Colorado, for Defendant-
Appellant.

Timothy J. Forwood, Assistant United States Attorney (Mark A. Klaassen, United
States Attorney, with him on the brief), District of Wyoming, Cheyenne,
Wyoming, for Plaintiff-Appellee.

Before HARTZ, MURPHY, and MATHESON, Circuit Judges.

MURPHY, Circuit Judge.
 I. INTRODUCTION

Daniel Koch pleaded guilty to receipt of child pornography. See 18 U.S.C.

§ 2252A(a)(2)(A). The district court sentenced Koch to a twenty-year term of

incarceration, to be followed by a ten-year term of supervised release. Without

objection, the district court ordered Koch to comply with the following special

condition of supervised release (the “Sexual Material Prohibition”):

[Koch] shall not possess, send or receive any pornographic,
sexually oriented, or sexually stimulating visual, auditory, telephonic
or electronic signs, signals or sounds from any source, unless part of
a treatment regimen. Defendant shall not visit bulletin boards, chat
rooms or other Internet sites where any pornographic, sexually
oriented or sexually stimulating images or messages are discussed.
He shall not send or receive e-mail or other documents discussing
any pornographic, sexually oriented, or sexually stimulating images
or messages.

For the first time on appeal, Koch asserts the district court erred in

imposing upon him the Sexual Material Prohibition without first making

particularized findings justified by compelling circumstances and based on an

individual assessment of his case. 1 This obligation arises, Koch argues, because

1
To be clear, Koch’s challenge on appeal is narrowly directed to the
procedures employed by the district court before imposing the condition. Koch
does not challenge, and this court does not address, any substantive aspects of the
condition. Nevertheless, in analyzing the issue raised by Koch on appeal, this
court cannot ignore the exceedingly broad nature of the Sexual Material
Prohibition. To state just one relevant example, the Sexual Material Prohibition
on the possession of “pornographic, sexually oriented, or sexually stimulating
auditory . . . signs, signals or sounds” appears to be so broad on its face so as to
bar Koch from even non-pornographic materials like, for instance, an audio book
(continued...)

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the condition interferes with his fundamental First Amendment right to access

legal, sexually oriented materials. See United States v. Burns, 775 F.3d 1221,

1223 (10th Cir. 2014) (holding that although district courts typically have “broad

discretion to impose conditions on supervised release,” when “the court imposes a

special condition that invades a fundamental right or liberty interest, the court

must justify the condition with compelling circumstances”); United States v.

Martinez-Torres, 795 F.3d 1233, 1238 (10th Cir. 2015) (holding, in the context of

reviewing a special condition of supervised release, that the First Amendment

generally protects even the substantially broader “right to possess sexually

explicit material involving adults”).

1
(...continued)
version of Gustave Flaubert’s Madame Bovary. Cf. United States v. Brune, 767
F.3d 1009, 1018 (10th Cir. 2014) (“An imprecise law that criminalizes access to
Nabokov’s Lolita or Woody Allen’s Manhattan will not survive constitutional
scrutiny even if it also bans access to actual hardcore images of underage
victims.”); cf. also United States v. Wise, 391 F.3d 1027, 1034 (9th Cir. 2004)
(noting potential breadth of the terms “sexually oriented” and “sexually
stimulating”). Accordingly, in analyzing whether the district court plainly erred
in imposing the Sexual Material Prohibition without first making the requisite
particularized findings, this court declines the government’s implied request to
view the Sexual Material Prohibition as applying only to pornography. In so
doing, this court is well aware that “where a broad condition of supervised release
is ambiguous and could be read as restricting a significant liberty interest, we
construe the condition narrowly so as to avoid affecting that significant liberty
interest.” United States v. Bear, 769 F.3d 1221, 1230 (10th Cir. 2014). Here,
however, the Sexual Material Prohibition restricts “pornographic, sexually
oriented, or sexually stimulating” material, so a narrow reading of the condition
as a restriction on pornography alone is simply not possible.

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 Upon review of the relevant Tenth Circuit authorities, we conclude the

district court plainly erred in imposing the Sexual Material Prohibition without

first making the necessary case-specific findings. Accordingly, exercising

jurisdiction pursuant to 28 U.S.C. § 1291, this court vacates the condition and

remands the matter to the district court for further proceedings consistent with

this opinion.

II. BACKGROUND

An indictment charged Koch with, inter alia, receipt of child pornography.

See 18 U.S.C. § 2252A(a)(2)(A). Pursuant to a plea agreement, Koch pleaded

guilty to the charge. In advance of sentencing, a United States Probation Officer

prepared a Presentence Investigation Report (“PSR”). Among other things, the

PSR increased Koch’s offense level by five levels because Koch engaged in “a

pattern of activity involving the sexual abuse or exploitation of a minor.” See

U.S.S.G. § 2G2.2(b)(5); id. § 2G2.2 cmt. n.1 (“‘Pattern of activity involving the

sexual abuse or exploitation of a minor’ means any combination of two or more

separate instances of the sexual abuse or sexual exploitation of a minor by the

defendant, whether or not the abuse or exploitation (A) occurred during the

course of the offense; (B) involved the same minor; or (C) resulted in a

conviction for such conduct.”). In support of the application of § 2G2.2(b)(5), the

PSR noted Koch’s 2004 Indiana state felony conviction for “Child Molesting” and

an ongoing investigation in Campbell County, Wyoming, for sexual abuse of a

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minor. The PSR also included disturbing background summaries of the facts

underlying the activities used to support the applicability of § 2G2.2(b)(5). Koch

filed a response to the PSR, which objected to proposed restitution figures and

offered minor biographical corrections. Koch did not, however, object to the

applicability of § 2G2.2(b)(5) or to the PSR’s summaries of the factual bases of

the two instances of child sex abuse underlying the applicability of § 2G2.2(b)(5).

At the sentencing hearing, the district court reviewed Koch’s personal and

criminal history in light of the factors set forth in 18 U.S.C. § 3553(a). The

district court repeatedly noted Koch’s prior conviction for child molestation and

the then-current investigation into his sexual abuse of a fifteen-year-old girl. The

district court deemed this history “very, very concerning” and noted the difficulty

of ascertaining “what leads an individual . . . into this kind of abuse.” Finally,

the district court recognized that society does not “know at this point how a

person can ever be rehabilitated from these charges from this conduct.” Although

the district court noted there exist “sex offense classes and so forth,” it did not

“have any good statistics as to how effective they are.”

The district court then sentenced Koch to twenty years in prison and ten

years of supervised release. Prior to delineating the applicable conditions of

supervised release, the court stated that “due to the nature of [the] offense of

conviction, conditions are recommended to address [Koch’s] risk of sexually

deviant behavior.” Among those conditions, the district court imposed the Sexual

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Material Prohibition. Koch did not object to any of the terms of his supervised

release or the court’s stated justification for those conditions.

III. ANALYSIS

A. Standard of Review

Koch failed to object at sentencing to the district court’s failure to support

its imposition of the Sexual Material Prohibition with particularized findings that

amount to a compelling justification. Accordingly, this court reviews the issue

for plain error. United States v. Malone, 937 F.3d 1325, 1327 (10th Cir. 2019).

Under this standard, we will “reverse only if there is (1) error, (2) that is plain,

which (3) affects substantial rights, and which (4) seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Id. (quotation omitted).

B. Discussion

1. Error

The district court erred in failing to justify the imposition of the Sexual

Material Prohibition with compelling circumstances particularized to Koch’s case.

The Supreme Court has made clear that the First Amendment protects the

right of individuals to possess sexually explicit materials involving adults, let

alone non-explicit sexually oriented materials. See United States v. Williams, 553

U.S. 285, 288 (2008) (“[T]o protect explicit material that has social value, we

have limited the scope of the obscenity exception, and have overturned

convictions for the distribution of sexually graphic but nonobscene material.”);

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Martinez-Torres, 795 F.3d at 1238 (citing Williams for the proposition that

special conditions of supervised release like those at issue here “implicate[]

constitutional interests, such as the right to possess sexually explicit materials

involving adults”). This right, like the other rights enshrined in the First

Amendment is fundamental. See McIntyre v. Ohio Elections Comm’n, 514 U.S.

334, 336 n.1 (1995) (“The right of free speech, the right to teach and the right to

assembly are, of course, fundamental rights.” (quotation omitted)); Meyer v.

Grant, 486 U.S. 414, 420 (1988) (“The freedom of speech and of the press, which

are secured by the First Amendment against abridgment by the United States, are

among the fundamental personal rights and liberties which are secured to all

persons by the Fourteenth Amendment against abridgment by a State.” (quotation

and alteration omitted)); Doe v. City of Albuquerque, 667 F.3d 1111, 1128 (10th

Cir. 2012) (“[T]he First Amendment includes a fundamental right to receive

information.”); United States v. Voelker, 489 F.3d 139, 150-51 (3d Cir. 2007)

(holding that a restriction significantly narrower than the one at issue here (i.e., a

ban on possession of “textual descriptions or visual descriptions of ‘sexually

explicit conduct,’ as defined by 18 U.S.C. § 2256(2)”) implicates “serious First

Amendment concerns”).

This court’s precedents create something of a hierarchy as to the extent of

justification required when a district court imposes conditions of supervised

release. A district court is not required to undertake an individualized assessment

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of whether it is appropriate to impose upon a defendant a mandatory condition of

supervised release. Martinez-Torres, 795 F.3d at 1237. “When, however, neither

the Sentencing Commission nor Congress has required or recommended a

condition, we expect the sentencing court to provide a reasoned basis for applying

the condition to the specific defendant before the court.” Id. That is, before a

district court can impose upon a defendant a special condition of supervised

release, the district court must analyze and generally explain how, with regard to

the specific defendant being sentenced, the special condition furthers the three

statutory requirements set out in 18 U.S.C. § 3583(d). Id. at 1236. 2 Although this

court is “not hypertechnical in requiring the court to explain why it imposed a

special condition of release—a statement of generalized reasons suffices—the

explanation must be sufficient for this court to conduct a proper review.

2
In Martinez-Torres, this court explained that to satisfy the statutory
standard set out in § 3583(d), a special condition of supervised release

must (1) be “reasonably related” to the nature and circumstances of
the offense, the defendant’s history and characteristics, the
deterrence of criminal conduct, the protection of the public from
further crimes of the defendant, or the defendant’s educational,
vocational, medical, or other correctional needs; (2) “involve[] no
greater deprivation of liberty than is reasonably necessary” for the
purposes of deterring criminal activity, protecting the public, and
promoting the defendant’s rehabilitation; and (3) be consistent with
any pertinent policy statements issued by the Sentencing
Commission.

795 F.3d at 1236 (quoting § 3583(d)).

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Particularly where the condition of release implicates constitutional interests,

such as the right to possess sexually oriented materials involving adults, more

detail may be required if the reasons for the restriction are not matters of common

knowledge.” Id. at 1238 (quotation and citations omitted). Finally, “when a court

imposes a special condition that invades a fundamental right or liberty interest,

the court must justify the condition with compelling circumstances.” Burns, 775

F.3d at 1223; see also Malone, 937 F.3d at 1327 (citing Burns for this

proposition).

The question then becomes whether the district court complied with these

dictates when it imposed upon Koch the Sexual Material Prohibition. The answer

to that question is a clear “no.” In imposing the Sexual Material Prohibition, the

district court merely noted the following: (1) the extent of Koch’s criminal history

(i.e., sexual contact with thirteen-year-old and fifteen-year-old girls and

possession of child pornography); (2) a personal doubt offenders like Koch were

amenable to rehabilitation; and (3) a desire to address Koch’s “cognitive thinking

errors.” This district court did not, however, analyze or explain how restricting

Koch’s access to sexually oriented (but non-pornographic) materials, specifically

including such materials only involving adults, would aid in Koch’s rehabilitation

or protect the public. The district court did not, for instance, find that accessing

sexual material involving adults impaired Koch’s rehabilitation because it

rendered him unable to undertake the tasks associated with daily life, see United

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States v. Miller, 665 F.3d 114, 136 (5th Cir. 2011), or acted as some kind of

sexualizing gateway leading to the consumption of child pornography. The

district court did not, likewise, analyze whether something inherent in the nature

of Koch’s crime, like the age of his victims, made it impracticable to differentiate

between children and adults in sexually oriented materials. See Voelker, 489 F.3d

at 152. Nor did the district court consider any of the other potentially numerous

valid reasons for restricting Koch’s access to constitutionally protected materials.

Absent such analyses on the part of the district court, it is simply impossible for

Koch to contest, or for this court to resolve as a substantive matter, whether a

prohibition like the Sexual Material Prohibition satisfies the statutory imperatives

set out in § 3583(a), let alone the requirement that any such special condition,

given that it implicates a fundamental right, serves a compelling governmental

interest. It is for this very reason that this court’s case law mandates that the

district court engage in an on-the-record analysis of the propriety of all special

conditions of supervised release and a particularly meaningful and rigorous

analysis when the special condition implicates a fundamental right or interest.

Because the district court failed in its obligation to undertake that analysis, its

imposition of the Sexual Material Prohibition on Koch amounted to error.

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 2. Plainness

In light of the current state of this court’s precedents, the district court’s

error is plain. That is, it is now patently clear in the Tenth Circuit that before a

district court can impose a special condition implicating a fundamental right,

including a condition like the Sexual Material Prohibition, the district court must

set forth, on the record, defendant-specific findings that show a compelling

interest.

An error is plain if it is “clear or obvious at the time of the appeal.” United

States v. Salas, 889 F.3d 681, 686-87 (10th Cir. 2018) (quotation omitted); see

also Henderson v. United States, 568 U.S. 266, 276 (2013) (holding that the

plainness of an error is measured against the law “in effect at the time [the

appellate court] renders its decision” (quotation omitted)). To be obvious, an

error must be “contrary to well-settled law.” Salas, 889 F.3d at 687 (quotation

omitted). “In general, for an error to be contrary to well-settled law, either the

Supreme Court or this court must have addressed the issue. The absence of such

precedent will not, however, prevent a finding of plain error if the district court’s

interpretation was clearly erroneous.” Id. (quotations omitted). “In the absence

of Supreme Court or circuit precedent directly addressing a particular issue, a

circuit split on that issue weighs against a finding of plain error. But

disagreement among the circuits will not prevent a finding of plain error if the

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law is well settled in the Tenth Circuit itself.” Id. (quotation and citation omitted).

The plainness requirement is “easily satisfied” where, as here, the district

court failed to make particularized findings to support a condition that intrudes on

a fundamental right or liberty interest. See United States v. Dunn, 777 F.3d 1171,

1178 (10th Cir. 2015) (holding that general rule requiring supportive findings

before imposing special conditions of supervised release made plain the district

court’s error in failing to make such findings in support of an occupation

restriction, even though this court had not previously applied the general rule in

the context of occupation restrictions). As this court recently made clear in

Malone, our precedents in this area “unambiguously require” the following two

actions on the part of sentencing courts: (1) a sentencing court must make

“supporting findings” when it “imposes a special condition of supervised

release”; and (2) a sentencing court “must justify the condition with compelling

circumstances” when it “imposes a special condition that invades a fundamental

right or liberty interest.” 937 F.3d at 1327 (quotations omitted). Consistent with

this dictate, this court has in at least three separate cases over the last several

years, vacated special conditions that touch on constitutional rights for lack of

adequately supportive findings. Id. at 1327-29; Dunn, 777 F.3d at 1178-79;

Burns, 775 F.3d at 1223-25. That none of these three cases involved a condition

like the Sexual Material Prohibition is of no moment given that in Martinez-

Torres this court concluded that a justification virtually identical to the one

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offered here was insufficient to support a far more limited restriction on adult

pornography. 795 F.3d at 1238 (“Particularly where the condition of release

implicates constitutional interests, such as the right to possess sexually explicit

materials involving adults, see United States v. Williams, 553 U.S. 285, 288

(2008), more detail may be required if the reasons for the restriction are not

matters of common knowledge. See Burns, 775 F.3d at 1222 (The condition of

supervised release ‘intrudes on [the defendant’s] constitutional right to familial

association. Because of this intrusion on a constitutional right, the district court

should have made particularized findings before restricting [the defendant’s]

contact with his daughter.’”)); see also Doe, 667 F.3d at 1128 (recognizing a

fundamental First Amendment right to receive information). 3 Thus, the district

3
In this regard it is worth noting the Supreme Court’s more than fifty-year-
old decision in Stanley v. Georgia, 394 U.S. 557 (1969). Stanley noted that the
right to receive information was at its zenith in a person’s home, so that the
government could not, consistent with the First Amendment, prohibit possession
of even obscene material. Id. at 564-68 As Stanley noted,

It is now well established that the Constitution protects the
right to receive information and ideas. . . . This right to receive
information and ideas, regardless of their social worth, is
fundamental to our free society. Moreover, in the context of this
case—a prosecution for mere possession of printed or filmed matter
in the privacy of a person’s own home—that right takes on an added
dimension. For also fundamental is the right to be free, except in
very limited circumstances, from unwanted governmental intrusions
into one’s privacy.

The makers of our Constitution undertook to secure conditions
(continued...)

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 3
(...continued)
favorable to the pursuit of happiness. They recognized the
significance of man’s spiritual nature, of his feelings and of his
intellect. They knew that only a part of the pain, pleasure and
satisfactions of life are to be found in material things. They sought
to protect Americans in their beliefs, their thoughts, their emotions
and their sensations. They conferred, as against the government, the
right to be let alone—the most comprehensive of rights and the right
most valued by civilized man.

These are the rights that appellant is asserting in the case
before us. He is asserting the right to read or observe what he
pleases—the right to satisfy his intellectual and emotional needs in
the privacy of his own home. He is asserting the right to be free
from state inquiry into the contents of his library. Georgia contends
that appellant does not have these rights, that there are certain types
of materials that the individual may not read or even possess.
Georgia justifies this assertion by arguing that the films in the
present case are obscene. But we think that mere categorization of
these films as “obscene” is insufficient justification for such a drastic
invasion of personal liberties guaranteed by the First and Fourteenth
Amendments. Whatever may be the justifications for other statutes
regulating obscenity, we do not think they reach into the privacy of
one’s own home. If the First Amendment means anything, it means
that a State has no business telling a man, sitting alone in his own
house, what books he may read or what films he may watch. Our
whole constitutional heritage rebels at the thought of giving
government the power to control men’s minds.

Id. at 565-66 (citations, quotations, and alteration omitted). As emphasized
repeatedly above, the Sexual Material Prohibition applies even to materials that
do not amount to pornography, let alone obscenity. See supra n.1. Given all
these considerations, this court has no doubt the Sexual Material Prohibition
implicates Koch’s fundamental First Amendment rights. To be clear, however,
although Stanley and Martinez-Torres hint at the answer, it is unnecessary for this
court to resolve whether a more limited special condition, for instance one
directed specifically at pornography, plainly implicates fundamental First
Amendment interests. Instead, it is enough for this court to conclude it is plain
(continued...)

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court’s error in failing to make the requisite findings in support of the Sexual

Material Prohibition imposed on Koch is obvious under extant Tenth Circuit

precedent. Dunn, 777 F.3d at 1178.

In arguing against this result, the government relies on this court’s

decisions in United States v. Mike, 632 F.3d 686 (10th Cir. 2011), and United

States v. Barela, 797 F.3d 1186 (10th Cir. 2015). Neither of these cases,

however, support the conclusion that the error at issue here is not plain. The

government’s reliance on Mike is somewhat perplexing. In Martinez-Torres, the

government similarly relied on Mike in arguing that district courts are under no

obligation to make particularized findings in support of special conditions

restricting a supervised releasee’s access to adult pornography. 795 F.3d at 1242.

Martinez-Torres rejected the argument that Mike was controlling, noting Mike’s

holding was limited to the proposition that the error at issue there, assuming it

amounted to error, was not plain. Id. In Martinez-Torres, on the other hand, the

issue was preserved for review and the court was obligated to decide whether the

failure to make the requisite findings amounted to error. Id. It is certainly true

that in this case, like in Mike, the court is reviewing Koch’s claim of error under

the plain error standard. The difference, however, and it is a significant one, is

that in the interim between the decision in Mike and the resolution of this appeal

3
(...continued)
that the Sexual Material Prohibition implicates such interests.

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this court has resolved the legal question by requiring district courts to support

special conditions of supervised release implicating fundamental rights with

particularized and compelling justifications. Martinez-Torres, 795 F.3d at 1241;

Malone, 937 F.3d at 1327-29; Dunn, 777 F.3d at 1178-79; Burns, 775 F.3d at

1223-25. And, as the Supreme Court has made clear, the plainness of an error is

measured against the law “in effect at the time [the appellate court] renders its

decision.” Henderson, 568 U.S. at 276 (quotation omitted).

Barela, a case issued a few weeks after the decision in Martinez-Torres, is

equally unhelpful to the government. Barela involved a different appellate claim

than the one at issue here. The claim in Barela was not a procedural challenge to

the district court’s failure to adequately justify a special condition that prohibited

the defendant from “viewing or possessing any material depicting and/or

describing sexually explicit conduct or pornography.” 797 F.3d at 1193

(quotation and alteration omitted). 4 Instead, it was a substantive claim that the

condition at issue in that case could not be imposed even using the correct

procedures because it was “not related to the relevant sentencing factors.” Id.

This court held that Barela could not establish that the condition violated his

4
United States v. Barela further noted that the term “sexually explicit
conduct” is clearly defined in federal law. 797 F.3d 1186, 1193 n.3 (10th Cir.
2015) (“‘Sexually explicit conduct’ is defined as ‘actual or simulated’ sexual
intercourse, bestiality, masturbation, sadistic or masochistic abuse, or ‘lascivious
exhibition of the genitals or pubic area of any person.’ 18 U.S.C.
§ 2256(2)(A).”).

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substantive First Amendment rights because of Barela’s particular circumstances

and because some courts had approved similar prohibitions against First

Amendment challenges. Id. at 1194. In contrast, the precedents identified above

make clear the proposition that a district court is required to make particularized

findings before prohibiting the possession of sexual materials that fall within the

ambit of the First Amendment. Koch does not assert that the First Amendment

categorically prohibits the district court from imposing on him, no matter the

circumstances, a limitation on his ability to access sexually oriented materials.

Instead, he asserts that absent particularized findings on the part of the district

court it is impossible to decide whether the imposition of the Sexual Material

Prohibition is consistent with the First Amendment. Because the law in this

circuit now makes patently clear that such findings are necessary, the district

court’s error in failing to make such findings is plain.

3. Substantial Rights

Because there is a reasonable probability the district court would not have

imposed the Sexual Material Prohibition if it had complied with the procedural

requirements plainly set out in this court’s precedents, Koch has demonstrated

that the district court’s error affected his substantial rights.

“An error affects substantial rights if there is a reasonable probability that

the error affected the outcome of the proceedings.” Burns, 775 F.3d at 1224. An

error in failing to make necessary findings affects a defendant’s substantial rights

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if there is a reasonable probability the district court would not have imposed the

special condition if it had undertaken the required analysis. Id.; United States v.

Francis, 891 F.3d 888, 898 (10th Cir. 2018). “Under plain error review, we may

vacate special conditions of supervised release only if the record reveals no basis

for the conditions. This is because if the record reveals a basis, there is no

reasonable probability that but for the error the defendant’s sentence would be

different and thus the proceeding’s fairness was not impacted.” Francis, 891 F.3d

at 898 (quotations, alterations, and citation omitted).

Koch asserts the district court’s failure to make the requisite findings

before imposing the Sexual Material Prohibition affects his substantial rights

because there is no basis in the record to conclude that possessing legal, sexually

oriented adult material is “reasonably related” to his history or the characteristics

of his offense. See supra n.2 (setting out the statutory requirements and

limitations on special conditions of supervised release). The government, on the

other hand, argues the Sexual Material Prohibition satisfies the statutory

limitations because (1) Koch’s current conviction is for possession of child

pornography; (2) Koch’s criminal history shows a prior child molestation that led

to imprisonment and an abusive sexual relationship with a fifteen-year-old girl

that was under investigation by state authorities at the time of sentencing; and (3)

the district court expressed doubt about whether Koch was amenable to

rehabilitation. Given this background history, the government asserts there is a

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basis in the record supporting the Sexual Material Prohibition and no reasonable

probability the district court would have chosen not to impose the condition if it

had made the required findings.

If the Sexual Material Prohibition were limited to pornography, this court

would likely be constrained to agree that the district court’s procedural error did

not affect Koch’s substantial rights. See Barela, 797 F.3d at 1193-94 (holding

that a district court’s error in failing to make necessary findings to support a

much narrower special condition—one limiting the defendant’s access to

“sexually explicit material”—did not affect the defendant’s substantial rights

because of “his convictions for distributing and possessing child pornography and

his history of voracious pornography viewing”); Martinez-Torres, 795 F.3d at

1241 (noting that courts have upheld special conditions restricting access to

“pornography” or “sexually explicit materials” when a defendant has been

convicted of possessing child pornography); Mike, 632 F.3d at 700 n.9 (“In cases

where the offense of conviction involved child pornography, a number of courts

have held that a ban on adult pornography is not problematic.”). The question on

appeal, however, is not whether some abstract, generic special condition limiting

Koch’s access to adult pornography would withstand review under the plain error

standard. The question is, instead, whether there is a reasonable probability the

district court would not have imposed the Sexual Material Prohibition if it had

engaged in the process mandated by this court’s precedents. See Appellant’s

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Opening Br. at 7 (arguing as follows: “[The potential] intrusion on

constitutionally protected activity is even greater than it was in Martinez-Torres.

While the condition in Martinez-Torres prohibited the defendant only from

possessing materials depicting or describing ‘sexually explicit conduct’ as defined

by federal law, the condition here bars possession of any material that is ‘sexually

stimulating,’ an even more overbroad proscription.”).

As to that question, this court is confident the answer is “yes.” Neither the

Government nor the district court identify anything in the record to suggest that

“sexually oriented” or “sexually stimulating” adult materials not amounting to

pornography contributed to Koch’s crimes or would increase his likelihood of

reoffending. While the record documents at length the kind of child pornography

found on Koch’s electronic devices, there is no indication any other kinds of

materials that might fall into the exceedingly broad Sexual Material Prohibition

contributed to Koch’s consumption of child pornography or his sexual contacts

with young girls. Absent any such basis in the record, this court is constrained to

conclude there is a reasonable probability the district court would not have

imposed the Sexual Material Prohibition if it had engaged in the process

mandated by Martinez-Torres and Malone.

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 4. Fairness, Integrity, or Public Reputation of Judicial Proceedings

Koch has shown that the district court’s error “seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” Malone, 937

F.3d at 1327.

The conclusion that the record is devoid of any basis to support the

imposition of the Sexual Material Prohibition, along with the concomitant

conclusion that it is reasonably probable the district court would not have

imposed the condition had the issue been considered at sentencing, likely satisfies

Koch’s burden. Burns, 775 F.3d at 1225; cf. Rosales-Mireles v. United States,

138 S. Ct. 1897, 1909 (2018). In any event, restrictions on accessing

constitutionally protected speech implicate serious and weighty matters. It

undermines the fairness, integrity, and public reputation of judicial proceedings

for a court to intrude on a defendant’s First Amendment rights before first giving

the matter the “focused attention” it deserves. Martinez-Torres, 795 F.3d at 1234.

IV. CONCLUSION

For those reasons set out above, this court VACATES the Sexual Material

Prohibition and REMANDS the case to the district court for further proceedings

consistent with this opinion.

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