United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 11-2430
___________
United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * Eastern District of Arkansas.
*
Justin Daniel Deatherage, *
*
Appellant. *
___________
Submitted: February 13, 2012
Filed: June 26, 2012
___________
Before LOKEN, BOWMAN, and BYE, Circuit Judges.
___________
LOKEN, Circuit Judge.
Justin Deatherage was charged with four counts of receiving and one count of
possessing child pornography downloaded to his computer from July 14 to July 17,
2008. After pretrial release and numerous continuances, in November 2010 he
pleaded guilty to the possession count, a violation of 18 U.S.C. § 2252(a)(4)(B).
After a two-day contested hearing, the district court1 sentenced Deatherage to seventy
months in prison and ten years of supervised release. He appeals four special
conditions of supervised release. When a defendant properly objects at sentencing,
1
The Honorable Susan Webber Wright, United States District Judge for the
Eastern District of Arkansas.
we review special conditions for abuse of discretion. United States v. Stults, 575
F.3d 834, 850 (8th Cir. 2009), cert. denied, 130 S. Ct. 1309 (2010). Because the
issues raised on appeal turn primarily on the district court’s credibility findings,
which are virtually unassailable, we affirm.
I.
Our court has published more than twenty opinions reviewing challenges to
special conditions of supervised release imposed in sentencing a variety of sex
offenders. These issues recur in sex offender cases2 because a number of special
conditions commonly imposed, including those recommended by the Sentencing
Commission in § 5D1.3(d)(7) of the Guidelines, may result in “sweeping restrictions
on important constitutional rights,” such as conditions severely restricting a
defendant’s right to contact children, including his own; to view sexually-oriented
materials protected by the First Amendment; or to access and use computers and the
Internet. United States v. Crume, 422 F.3d 728, 733 (8th Cir. 2005). Our standards
of review are now well-established:
A district court has broad discretion to impose special conditions
of supervised release, so long as each condition complies with the
requirements set forth in 18 U.S.C. § 3583(d). Section 3583(d) first
requires that a special condition must be reasonably related to the nature
and circumstances of the offense of conviction, the defendant’s history
and characteristics, the deterrence of criminal conduct, the protection of
the public from further crimes of the defendant, and the defendant’s
educational, vocational, medical, or other correctional needs. . . .
Second, a special condition also must involve no greater deprivation of
liberty than is reasonably necessary to deter criminal conduct, to protect
the public from further crimes of the defendant, and to provide for the
2
See generally U.S. Sentencing Comm’n, Federal Offenders Sentenced to
Supervised Release pp. 20-27 (July 2010).
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defendant’s educational, vocational, medical, and other correctional
needs. Finally, a special condition must be consistent with any pertinent
policy statements issued by the Sentencing Commission. In fashioning
a special condition of supervised release, a court must make an
individualized inquiry into the facts and circumstances underlying a case
and make sufficient findings on the record so as to ensure that the
special condition satisfies the statutory requirements.
* * * * *
Our cases say that a court may impose a special condition on the
ground that it is related to a defendant’s prior offense, but that a court
may not impose a special condition on all those found guilty of a
particular offense.
* * * * *
At some point, there must be a limit to the need for an
individualized inquiry, because certain characteristics may justify
corresponding conditions for virtually all offenders with such
characteristics . . . .
United States v. Springston, 650 F.3d 1153, 1155-56 (8th Cir. 2011), vacated and
remanded on other grounds, 132 S. Ct. 1905 (2012), quoted extensively in United
States v. Schaefer, 675 F.3d 1122, 1124 (8th Cir. 2012). Of critical importance in this
case, even in the absence of individualized findings a special condition need not be
vacated “if the basis for the imposed condition can be discerned from the record.”
United States v. Thompson, 653 F.3d 688, 694 (8th Cir. 2011); accord United States
v. Smith, 655 F.3d 839, 845 (8th Cir. 2011).
II.
The underlying investigation began in June 2008 when Michele Alford, a
young single mother, contacted the Russellville, Arkansas police. Alford reported
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that she was in a longstanding sexual relationship with Deatherage, a thirty-year-old
married father of two young children, and had become concerned that Deatherage’s
graphic descriptions of abusive sexual contact with his children’s twelve-year-old
babysitter, a ten-year-old friend of the babysitter, and a seven-year-old girl who lived
across the street from Deatherage were not simply fantasizing, as Alford initially
assumed. The police advised they would need more evidence of child sex abuse.
Alford provided an undated printout of an online chat with Deatherage in which he
discussed in lurid detail this illegal sexual contact. At police request, Alford asked
Deatherage if he had pictures of this contact and then met him on the morning of July
18 wearing a hidden “wire” to record their conversation. Deatherage was arrested
when he again detailed sexual encounters with the children in graphic detail.
In a post-arrest interview, Deatherage denied having sexual contact with the
children or being sexually attracted to children, claiming that he only described
sexual fantasies with young girls to arouse Alford. Continuing to investigate, the
police did not identify the babysitter or her friend. The seven-year-old neighbor was
interviewed by an Arkansas State Police investigator. She denied sexual contact with
Deatherage but “had a very strong reaction when asked about anybody touching her
inappropriately,” and her demeanor when Deatherage was mentioned “was not
consistent with a friendly, healthy relationship.”
Meanwhile, Deatherage’s wife consented to seizure of the family computer.
A warrant search uncovered six videos and some twenty images of child pornography
downloaded between July 14 and 17 that included images of prepubescent females
under age twelve being subjected to bondage and engaging in bestiality. Most of the
videos pictured the same young girl whose mother later submitted a victim impact
statement. Police also found a thirty-page listing of more than one hundred links to
pedophile websites. This federal prosecution followed.
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III.
We view these sentencing issues from the perspective of the sentencing judge.
For Judge Wright, the fact-finding began when Deatherage appeared for the change-
of-plea hearing. Defense counsel sought to continue the hearing upon learning that
Deatherage must show “exceptional circumstances” to avoid immediate detention
after pleading guilty to a child pornography offense. Noting the long delay, Judge
Wright responded that Deatherage must change his plea or be promptly tried. The
government urged immediate detention even if Deatherage did not enter a guilty plea.
The court ordered an immediate hearing on that issue. FBI case agent Todd Hudson
testified that Deatherage’s former sister-in-law (his wife having divorced him soon
after his arrest) had called earlier that week from Pennsylvania, where the ex-wife and
children were living. She reported seeing inappropriate sexual contact between
Deatherage and his young children and overhearing the State Police investigator’s
interview of the son, which resulted in the children’s immediate placement in foster
care. She further opined that “both children are in counseling due to the outward
manifestations of sexual abuse.” After hearing testimony by Deatherage, the court
found based on the new allegations and the online chat with Alford that he “is a
danger to the community” and ordered him detained. The court observed, “I am very
concerned after reading this chat. If it’s a fantasy, he doesn’t write it as if it’s a
fantasy.” Deatherage then entered the guilty plea.
The primary issue at sentencing was the prison term to be imposed. Consistent
with non-binding stipulations in the plea agreement, the Presentence Investigation
Report recommended a base offense level of 18, four enhancements totaling 12 levels
under U.S.S.G. § 2G2.2(b), and a 2-level reduction for acceptance of responsibility.
Before the start of the two-day evidentiary hearing, neither party objected to the PSR
recommendations, resulting in an advisory guidelines range of 70 to 87 months in
prison and supervised release that could be imposed for the defendant’s lifetime. As
both sides would present evidence, the court directed the government to proceed first.
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The government’s first witness was FBI agent Hudson who described the state
and federal investigation, laid foundation for copies of the online chat and the wire
recording admitted as Exhibits 1 and 3, described the forensic examination of
Deatherage’s computer, and recounted again the report from the state investigator
who interviewed the seven-year-old neighbor. The six downloaded videos were
admitted as Exhibit 4 and played in open court. The additional images of child
pornography found in the computer’s temporary internet file folder were admitted as
Exhibit 5, and the thirty-page list of pedophile websites previously admitted at the
detention hearing was admitted as Exhibit 2. On cross examination, Hudson admitted
that he had no personal knowledge of Deatherage molesting or being charged with
molesting any child, no other images of child pornography were found on his
computer, and typically in Hudson’s experience offenders are found with large
volumes of child pornography in their possession.
The government’s second witness was Michele Alford. She candidly described
her extended sexual relationship with Deatherage, including three-way sexual
intercourse with Deatherage and his wife on one occasion. At some point, she
testified, Deatherage began talking about his “flirty” twelve-year-old babysitter, talk
that progressed to increasingly graphic descriptions of sexual contact with the
babysitter, her ten-year-old friend, and a seven-year-old female neighbor. Though
Alford initially did not believe these accounts of sexual contact with young girls, she
eventually became concerned and reported these talks to the Russellville police. They
were concerned but needed proof. Alford then produced the online chat with
Deatherage that became Exhibit 1. She also asked him “to bring photos to prove that
he wasn’t lying to me about what was going on,” and agreed to wear a wire to record
the conversation on July 18 that became Exhibit 3. Alford denied asking Deatherage
to download child pornography and denied any intent to view child pornography with
him. On cross examination, Alford admitted knowing Deatherage was married with
two children when their affair began. She also admitted being sexually involved with
other married men, posting nude pictures of herself on the internet, and being
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involved in “swinging” sexual parties in the Fayetteville area. She denied ever acting
like she was turned on by Deatherage’s stories of having sex with a child, or ever
asking him to leave his wife, or being mad at him when she went to the police. She
asked him for pictures because he told her he was taking pictures of his sexual
contacts with the babysitter and the police had asked for proof.
The first defense witness was a licensed sex-offender treatment therapist who
had administered several tests and opined that Deatherage presented a “low or low
moderate risk” of reoffending. The therapist had not read the online chat, listened to
the wire recording, or viewed the images retrieved from Deatherage’s computer.
More significantly, his opinion was based on Deatherage’s denials, which the district
court found not credible, so his opinion was given little if any weight.3
Deatherage testified in his own defense when the hearing resumed one week
later. He blamed his wife for visiting the “AdultFriend Finder” website to find a
partner for three-way sex, which led to a relationship with Alford that continued long
after his wife lost interest. He asserted that his descriptions of sexual encounters with
underage girls were prompted by fantasies Alford brought up during the last month
or two of their relationship; that none of the activity he described in fact occurred;
and that his fantasy descriptions of abusing young girls were intended to, and did in
fact, appeal to her sexual appetites, which in turn aroused him. He admitted visiting
the pedophile websites listed on Exhibit 2 and downloading the six videos and other
images of child pornography but claimed he only did so at Alford’s insistence and
after she threatened to reveal their affair to his wife. He denied being “turned on by
sex with children,” or having an “inappropriate relationship” with his children or
anyone else’s. On cross exam, Deatherage testified that he intended to give the
3
The district court asked this witness: “Would your result be different if you
had made the assumption that he had had some contact with children?” The expert
answered, “Obviously, yes.”
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downloaded videos and images to Alford but never did; that he used Limewire as the
search engine to find the videos but had never looked at child pornography before
July 14; and that he “previewed” the downloaded videos but never watched them in
full length. He could not explain why the same young girl was in most of the videos.
Recalled as a rebuttal witness, Agent Hudson testified that the government had
re-examined Deatherage’s computer between the two hearing days and determined
that the operating system was installed on June 26, 2008. It was his understanding
that a new operating system may write over prior files on a hard drive, making it
impossible for even a forensic examiner to retrieve them.
IV.
At the conclusion of the evidentiary hearing, defense counsel argued that,
although the “facts are very sordid,” Deatherage is not a typical child pornography
offender because he only downloaded the pornographic materials in one four-day
period for Alford’s gratification. Thus, he is not likely to reoffend, the child
pornography guidelines should not apply, and “probation is an appropriate sentence”
because he has suffered enough from his poor moral judgment. The government
agreed that the guidelines are not appropriate: with the lies put forth in Deatherage’s
unbelievable testimony, “the guidelines are too low.” Based on the wire recording
and online chat, the videos, and Deatherage’s effort to “pull one over on the Court,”
the government urged a statutory maximum sentence of ten years or at least the high
end of the advisory range.
Prior to imposing sentence, the district court reviewed the evidence in some
detail. The court noted that the narrow four-day window in which Deatherage
downloaded child pornography was evidence in favor of his claim the “he is outside
the range of the typical defendant.” However, the court concluded that this factor was
outweighed by its resolution of the critical credibility issue:
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It’s a lot of images of child porn, and the Court unfortunately had
to view this. As I recall, several of the videos are . . . of the same little
girl . . . .
Anyone who would download these things must have some pretty
sick reason for it and, of course, it is against the law. Other evidence
against Mr. Deatherage is the chat [and the wire recording]. Both on the
chat and on the wire Mr. Deatherage describes sexual acts with children
in graphic detail. And I thought at his plea hearing that that detail was
so extensive that, if he didn’t do these things, he really had a heck of an
imagination, and I still think that.
I still think that the government has established more likely than
not that these are real things that happened . . . .
The court also rejected, based on its finding as to her credibility, Deatherage’s claim
that the recorded talks were the product of Alford’s vengeful motive to entrap him.
The court then concluded:
[T]his whole case is extremely sordid, and it is very difficult for
me. But I . . . am not convinced that Mr. Deatherage was just making up
everything in that chat or . . . on that wire. And the fact that he
downloaded these things, which are totally disgusting, and never
showed them to Michele would indicate to me that he was doing this for
his own gratification.
And I, therefore, find that a guideline sentence is fair [after]
considering all the factors in 18 [U.S.C.] § 3553(a).
The court imposed a sentence of 70 months in prison, the bottom of the
advisory range, followed by ten years of supervised release. In addition, the court
imposed ten special conditions of supervised release. Defense counsel responded:
We object to the no . . . adult pornography prohibition. We also
object to the unsupervised contact with anyone under 18 without
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permission from the probation because he still has young children that
he should be permitted to see. We object to no computer ownership or
internet access without permission from the probation because . . . in this
day and age, and particularly in order to get a job, he is going to need a
computer. . . . [H]e should have the right to have internet access and to
adult pornography without involving probation.
THE COURT: I am going to leave those conditions there. We
frequently see in child pornography cases that people also have adult
pornography, and so we would just like to keep these sex offenders
away from pornography. I know that your position and Mr.
Deatherage’s position is he is not a danger to minors. I have found
otherwise. . . . [H]e more likely than not is attracted to minors and has
had some contact with minors and . . . so those are my reasons. . . .
[W]ith respect to computers . . . he got the pornography from a
computer. . . . [E]ven for those who have been convicted of doing that,
there are devices to put on the computer, as I mentioned while I was
imposing these conditions, and with the aid of probation . . . even those
people are allowed to use a computer as long as they have this device.
V.
We set forth, with some abbreviating, the four special conditions that
Deatherage challenges on appeal:
4. The defendant shall not purchase, possess . . . or use any media forms
containing pornographic images or sexually oriented materials
including . . . . materials containing “sexually explicit conduct” as
defined in 18 U.S.C. § 2256(2).
5. The defendant shall not own or use any computer or device . . .
without first receiving written permission from the probation officer. . . .
The defendant shall agree to the installation of computer monitoring
software and hardware approved by the probation office . . . .
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2. Defendant shall participate in sexual offender treatment under the
guidance and supervision of the Probation Officer and abide by the
rules, requirements and conditions of the treatment program . . . . [T]he
defendant shall abstain from the use of alcohol throughout the course of
treatment and submit to testing.
8. The defendant shall disclose business and personal financial
information upon request of the U.S. Probation Office.
We have two overriding problems with Deatherage’s contentions on appeal.
First, a primary focus is the alleged inadequacy of the district court’s explanations in
response to defense counsel’s objections at the conclusion of the sentencing hearing,
for example, repeated assertions that an explanation did not reflect the individualized
findings our cases require. But that objection was not made to the district court. A
general objection at sentencing to the substantive restriction imposed by a special
condition is not enough to preserve an allegation that the court did not adequately
explain its specific reasons for imposing the special condition. See Stults, 575 F.3d
at 854; United States v. Simons, 614 F.3d 475, 478-79 (8th Cir. 2010). Therefore, we
review the court’s explanations for plain error, a “formidable” standard of review that
is not met if “the reasons for the imposition . . . are discernable from the record.”
United States v. Poitra, 648 F.3d 884, 889-90 (8th Cir. 2011); see generally United
States v. Olano, 507 U.S. 725, 732 (1993).4
4
In the opinion of the author and Judge Bowman, because special conditions
of supervised release can be anticipated in every sex offender sentencing, and our
standards for imposing them are now well-established, we should stop doing plain
error review of this procedural issue. Liberal plain error review in which we parse
the district court’s explanation and then scrounge the record to find support for a
perceived deficiency invites defense counsel not to object, since an objection gives
the district court an opportunity to correct any deficiency. In my view, if counsel
does not timely object that the reasons for imposing a condition have not been
adequately explained, defendant has voluntarily relinquished the issue, and we should
deem it waived, not merely forfeited. Cf. United States v. Harrison, 393 F.3d 805,
806 (8th Cir. 2005).
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Second, Deatherage’s arguments on appeal reflect the major premise he
unsuccessfully urged at sentencing -- that he is simply a one-time offender who
downloaded child pornography over a four-day period and was not shown to be
“obsessed with or addicted to child or adult pornography.” The sentencing record is
to the contrary. Once the district court made adverse credibility findings, its most
difficult task was to fashion a sentence that is “sufficient but not greater than
necessary.” 18 U.S.C. § 3553(a). Given Deatherage’s false denials, likely abuse of
three young girls and his own children, and possession of a large quantity of vile
child pornography, imposing a maximum prison term (ten years) and a lifetime of
supervised release warranted some consideration. The court instead imposed a prison
term of 70 months -- without doubt a substantial punishment but considerably less
than sentences that have been imposed on other dangerous child sex offenders -- and
only ten years of supervised release. In these circumstances, stringent special
conditions were necessary “to reflect the seriousness of the offense” and to “protect
the public” -- young children -- “from further crimes of the defendant.” 18 U.S.C.
§ 3553(a)(2)(A), (C). On this extensive evidentiary record that includes the court’s
careful findings of fact, little additional explanation was needed to make the need for
carefully tailored special conditions “discernable from the record.”
A. Turning to the specific conditions at issue, Deatherage first argues that
Special Condition 4 was an abuse of the court’s discretion because it includes a ban
on adult pornography not supported by individualized findings and imposing a greater
deprivation of liberty than necessary. We carefully review broad bans on possessing
sexually explicit materials because they implicate important First Amendment rights.
See, e.g., United States v. Kelly, 625 F.3d 516, 520-22 (8th Cir. 2010). Thus, in
United States v. Bender, 566 F.3d 748, 752 (8th Cir. 2009), we vacated a broad ban
on adult pornography explained only by the district court’s opinion that “a sex
offender doesn’t have any business looking at Playboy magazine.” But we have
upheld conditions that were obviously relevant to the child pornography offense at
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issue or to the defendant’s history and characteristics. See United States v. Anderson,
664 F.3d 758, 768-69 (8th Cir. 2012); United States v. Wiedower, 634 F.3d 490, 496-
97 (8th Cir. 2011); Thompson, 653 F.3d at 693-96; United States v. Boston, 494 F.3d
660, 667-68 (8th Cir. 2007); United States v. Ristine, 335 F.3d 692, 694 (8th Cir.
2003). Here, given the obvious relationship between the child pornography offense,
Deatherage’s likely abuse of young children, and his sordid affair with Alford, the
district court did not abuse its discretion by banning possession of all sexually
oriented materials during his ten years of supervised release.
B. Deatherage next argues that Special Condition 5 is an unreasonable
restriction on his important rights to use computer devices and to access the internet
because he only used his computer to receive and possess child pornography, like the
defendants in Wiedower, 634 F.3d at 497, and in Crume, 422 F.3d at 733. It is true
that Deatherage did not use computers to produce or distribute child pornography, but
computer use and internet access were central to his child pornography offense as
well as his sexual relationship with Alford. The district court learned at the earlier
detention hearing that Deatherage had violated a condition of pretrial release that he
have no internet access by accessing his “MySpace” page (according to defense
counsel, because a friend accessed Deatherage’s MySpace account, again blaming a
violation on someone else). Deatherage argues that, under this condition, he “simply
will not be able to function in society while on supervision.” But this contention
ignores the court’s explanation that the “ban” will be limited, if he so desires, to
installing approved computer monitoring devices and consenting to unannounced
examination of his computers and storage devices. We have repeatedly upheld
limited conditions on computer usage and internet access that were related to the
offense or to the defendant’s history. See United States v. Morais, 670 F.3d 889, 895-
97 (8th Cir. 2012); United States v. Mayo, 642 F.3d 628, 632-33 (8th Cir. 2011);
Stults, 575 F.3d at 850, 855-56; Bender, 566 F.3d at 750-52; Boston, 494 F.3d at 668;
Ristine, 335 F.3d at 696. Condition 5 was not an abuse of the court’s discretion.
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C. Deatherage next argues the district court committed plain error in imposing
Special Condition 2 because it “bans alcohol consumption and orders mandatory
testing of alcohol use throughout the course of sex offender treatment.” In support,
he relies on our many cases questioning the efficacy of alcohol bans and reversing
broad prohibitions unrelated to the offense or the offender at issue. See Simons, 614
F.3d at 480 (collecting cases). This argument -- not made to the district court --
ignores the context of the special condition, that Deatherage abstain from the use of
alcohol only during the course of sex offender treatment.
Deatherage’s array of sexual misconduct, and persistent efforts to deny and
cover up that misconduct, clearly warranted mandatory sex offender treatment.
Indeed, before addressing the terms of supervised release, the district court
recommended to the Bureau of Prisons “that while he is incarcerated, he participate
in mental health treatment, intensive sex offender treatment, and in educational and
vocational programs.” Deatherage does not challenge the primary purpose of Special
Condition 2, the likely need for post-incarceration treatment. He complains only that
the alcohol restriction is unreasonable because he has no history of alcohol or drug
abuse. Of course, if he is not a drinker, the restriction will have no adverse impact
on him. More importantly, the defendant has the burden to establish that a special
condition is unreasonable. Here, the record is devoid of evidence that alcohol
consumption does not adversely affect a course of sex offender treatment. Common
sense suggests that treatment experts would strongly argue that it does. The district
court committed no plain error in imposing Special Condition 2.
D. Finally, Deatherage argues the district court committed plain error in
imposing Special Condition 8 because requiring him to disclose financial information
to the probation office upon request was unrelated to the offense of conviction. The
district court’s explanation when it imposed this condition -- “because sometimes sex
offenders spend money on the internet or elsewhere to purchase pornographic
materials” -- suggests, as Deatherage argues on appeal, that it was improperly
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imposed because of Deatherage’s membership in the universe of sex offenders, rather
than an individualized inquiry. On the other hand, the record reflects that Deatherage
was in arrears on his court-ordered child support obligations, a factor we cited in
upholding a similar special condition in United States v. Camp, 410 F.3d 1042, 1046
(8th Cir. 2005). Although we have some doubt about this special condition,
Deatherage fails to show specific hardship or adverse effect, and the condition is
limited to monitoring his financial affairs rather than prohibiting specific business or
financial activities. Based on the rigorous nature of plain error review, and the
district court’s abundant opportunity to amend or ameliorate any unreasonable
adverse impact during the term of Deatherage’s supervised release, we conclude that,
even if Special Condition 8 was not based on an individualized inquiry, there was no
plain error.
For the foregoing reasons, the judgment of the district court is affirmed.
BYE, Circuit Judge, concurring in the result.
Because our review is for plain error and because our precedent dictates that
we search the record in an attempt to discern the reasons for the imposed conditions,
I reluctantly concur in the result reached by the majority.
I also do write separately, however, to express my deep concern for our circuit's
rapid erosion of appellate review of special conditions of supervised release. Our
precedent is clear: "When crafting a special condition of supervised release, the
district court must make individualized inquiry into the facts and circumstances
underlying a case and make sufficient findings on the record so as to ensure that the
special condition satisfies the statutory requirements." United States v. Forde, 664
F.3d 1219, 1222 (8th Cir. 2012) (internal quotation marks and citation omitted)
(emphasis added). We continue to cite this language in our opinions discussing the
imposition of special conditions. We continue to emphasize district courts must be
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careful to "conduct an inquiry on an individualized basis" and "not impose special
conditions categorically on all individuals convicted of certain offenses." United
States v. Morais, 670 F.3d 889, 895 (8th Cir. 2012). Yet, we have effectively begun
eroding this requirement by suggesting that "'[a]t some point, there must be a limit to
the need for an individualized inquiry, because certain characteristics may justify
corresponding conditions for virtually all offenders with such characteristics.'" Ante
at 3 (quoting United States v. Springston, 650 F.3d 1153, 1156 (8th Cir. 2011)
(vacated on other grounds) (emphasis added)). I cannot reconcile this newly
suggested approach with the clearly established law of our circuit as to special
conditions having to be based on the "nature and circumstances of the [particular]
offense and the history and characteristics of the [individual] defendant." United
States v. Bender, 566 F.3d 748, 752 (8th Cir. 2009) (internal quotation marks and
citation omitted). Thus, unless and until our en banc court decides otherwise, our
circuit's precedent requires district courts to make an inquiry based on an individual
basis and prohibits them from imposing "a special condition on all those found guilty
of a particular offense." United States v. Davis, 452 F.3d 991, 995 (8th Cir. 2006).
We also continue to emphasize that district courts must "make sufficient
findings on the record so as to ensure that the special condition satisfies the statutory
requirements." Forde, 664 F.3d at 1222 (internal quotation marks and citation
omitted). Yet, we willingly parse through extensive records, as we did in this case,
engaging in unassisted searches of evidence to find some support—any support—for
the imposed conditions and forgetting it is the district court's responsibility in the first
instance to provide us with the reasons behind its decision. See, e.g., United States
v. Schaefer, 675 F.3d 1122, 1124 (8th Cir. 2012) ("While this court encourages
detailed findings, it is enough that the basis for the imposed condition can be
discerned from the record."); United States v. Thompson, 653 F.3d 688, 694 (8th Cir.
2011) (holding a special condition need not be vacated "if the basis for the imposed
condition can be discerned from the record"). We call these unassisted searches a
"harmless error" review. But at some point, we must also remember we are not ferrets
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obligated to sift through voluminous records in search of some evidence which might
support the imposed conditions. We must also remember that the responsibility to
make sufficient findings on the record lies with the district courts, not our court. We
must remember there is a difference between reasons which are easily discerned from
the record, see, e.g., United States v. Carlson, 406 F.3d 529, 532 (8th Cir. 2005)
(upholding a special condition in the absence of detailed findings because the record
clearly "justified, if indeed not compelled" the imposed condition), and reasons we
speculate to be the basis for the imposed conditions only after we have extensively
searched for them in, or even outside, the record, see, e.g., United States v. Mosley,
672 F.3d 586, 591-92 (8th Cir. 2012) (looking to the Physician's Desk Reference to
explain the possible effect of alcohol on individuals taking certain medications and
to support, in part, the district court's decision to impose a special condition banning
the use of any alcohol).
Because I fear our review of special conditions of supervised release is headed
in the wrong direction, I urge us not to forget our precedent still requires "a
particularized showing of the need for the [special] condition in each case." United
States v. Kelly, 625 F.3d 516, 520 (8th Cir. 2010). We must, therefore, not allow the
categorical imposition of special conditions "on all those found guilty of a particular
offense," Davis, 452 F.3d at 995, and hold district courts accountable for the failure
to show they engaged in an individualized inquiry by making sufficient findings on
the record.
I therefore reluctantly concur in the result.
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