Case: 12-20043 Document: 00512244014 Page: 1 Date Filed: 05/16/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 16, 2013
No. 12-20043 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff – Appellee
v.
DAVID HIEN VINH TANG,
Defendant – Appellant
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 4:11-CR-776-1
Before JOLLY, GARZA, and OWEN, Circuit Judges.
PER CURIAM:*
David Hien Vinh Tang pleaded guilty to failing to register as a sex
offender after traveling in interstate commerce in violation of 18 U.S.C.
§ 2250(a). He appeals three conditions of his supervised release. First, he
appeals a ban on Internet use without permission of his probation officer.
Second, he appeals certain aspects of a requirement that he participate in
mental health or sex offender treatment. Third, he appeals a restriction on
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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contact with minors, including children of his own, part of which is a ban on
dating people with minor children. We AFFIRM in part and VACATE in part.
I
In 2003, Tang was convicted under Iowa law of assault with intent to
commit sexual abuse, not causing bodily injury. IOWA CODE § 709.11. Tang,
drunk at the time of the offense, touched a thirteen year old girl’s breast and
kissed her in an automobile. The offense occurred after the untimely death of
Tang’s seven year old daughter, who fought leukemia for four years. Tang
turned himself in for the offense, and, for the next eight years, compliantly
registered as a sex offender. The 2003 Iowa offense is his only criminal
conviction.
In 2011, Tang moved to Texas to pursue new work opportunities and a
romantic relationship. Before leaving Iowa, Tang notified his probation officer,
and, upon arriving in Texas, Tang went to the Houston Police Department
(“HPD”) to register and was told to return for a sex offender registration
information session. Tang returned and attended the information session, but
was asked to return again because HPD did not yet have Tang’s requisite
documentation from Iowa. As instructed, Tang went to the HPD a third time to
register, but he was turned away because HPD still did not have all the requisite
materials to complete his registration. Although Tang was asked to return to
HPD for a fourth visit scheduled for June 1, 2011 to finish the process, he did
not. Nor did he register as a sex offender with the Harris County Sheriff’s
Office. Thus, he failed to comply with federal law, which required him to
register. 18 U.S.C. § 2250(a).
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After determining that Tang was required to register as a sex offender in
Texas and that he had failed to do so, the Texas Department of Public Safety
notified the United States Marshal Service. The Marshal Service tried to find
Tang at the address he had provided during each of his visits to HPD but was
unable to do so because the address was at a residential location that Tang did
not own and at which Tang did not reside. The owner informed the Marshal
Service that he had given permission to Tang’s girlfriend to use the address to
register for a cell phone.1 Eventually, the Marshal Service was able to locate
Tang at another address in Cypress, Texas. Tang was arrested and charged
with a one count indictment of failing to register as a sex offender after traveling
in interstate commerce, in violation of 18 U.S.C. § 2250(a).
At sentencing, Tang waived the United States Probation Office’s
preparation of a presentence investigative report (“PSR”) and pled guilty. In the
oral pronouncement of sentence, the district court imposed a “[split] sentence at
the low end of the eligible guideline range” consisting of three months of
imprisonment, three months of community supervision, and five years of
supervised release. Three conditions of Tang’s supervised release are at issue
in this appeal: (1) a ban on computer and Internet use, (2) sex offender-related
mental health treatment (including potential physiological testing and a
potential waiver of confidentiality), and (3) a restriction on contact with minors
and persons whom Tang may date.
At sentencing, the court stated the following regarding the Internet ban:
1
Though internally contradictory on the issue, the sentencing transcript seems to
indicate that Tang lived at the address for a short time, but then moved in with his girlfriend’s
family because the owner’s family members moved into that residence.
3
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The defendant shall not subscribe to any computer online
service or access any internet service during the length of his
supervision unless approved in advance by the probation officer.
The defendant may not possess internet cable software on any
hard drive, disk, floppy disk, DVD, diskette, or any other electronic
storage media unless approved in advance by the probation officer.
Tang’s lawyer objected to this condition by saying, “I just wanted to add one
more objection, which is to the restriction of no online service or cable software
so that he could use the Internet.” Twice, Tang’s lawyer stated that her
understanding that the ban would prevent Tang from accessing the Internet in
his home was the root of her objection.
Regarding the treatment program, the court explained:
The defendant shall participate in a mental health
program—treatment program and/or sex offender treatment
program provided by the registered sex offender treatment provider,
as approved by the United States Probation Office, which may
include but not be limited to group and/or individual counseling
sessions and or polygraph testing or medical-physiological testing to
assist in treatment and case monitoring administered by the sex
offender contractor or their designee.
The defendant shall participate as instructed and shall abide
by all policies and procedures of the sex offender program until such
time as the defendant is released from the program as approved by
the United States probation officer.
The defendant will incur any costs associated with such sex
offender treatment program and testing based on ability to pay as
determined by the probation officer.
The defendant shall waive his or her right to confidentiality
in any records for mental health treatment imposed as a
consequence of his judgment, allowing the supervising United
States probation officer to review the defendant’s course of
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treatment and progress with the treatment provide—and progress
with the treatment provider.
Tang’s lawyer objected, saying the potential physiological testing “seems greater
than necessary to achieve the goals of 3553”2 and that “even group []
counseling—and that he waived confidentiality for any counseling that he
receives appears greater than necessary to achieve the goals.” Later, counsel
repeated that she “vehemently emphasized [her] objection to physiological
mental health treatment, whatever that might entail” as being “vague and
overbroad” and not related to his underlying offense of failing to register.
Regarding the restriction on contact with minors, the court stated:
The defendant shall not have any contact with any minor
children under the age of 18 without prior written permission of the
probation officer.
The defendant shall not cohabitate with anyone who has
children under the age of 18 unless approved in advance by the
probation officer.
The probation officer present clarified that the restriction does apply to one’s
own children. As she did with the two conditions discussed above, Tang’s
counsel objected to the restriction, saying, “I . . . object to the no contact with a
child under 18 without permission and no cohabitation.”
The court overruled all of Tang’s objections; therefore, the Internet ban,
mental health and sex offender treatment, and restriction on contact with
minors all applied as conditions of Tang’s supervised release. In the section
restricting contact with minors, the written judgment changed “shall not
2
“3553” refers to 18 U.S.C. § 3553, explained in greater detail below.
5
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cohabitate with” to “shall not date or cohabitate with.” Tang timely appealed
these conditions, including the change in the written judgment.
II
We “first ensure that the district court committed no significant procedural
error, such as . . . failing to adequately explain the chosen sentence.” Gall v.
United States, 552 U.S. 38, 51 (2007). If there is no procedural error, we “then
consider the substantive reasonableness of the sentence imposed under an
abuse-of-discretion standard . . . tak[ing] into account the totality of the
circumstances.” Id. “To preserve error, an objection must be sufficiently specific
to alert the district court to the nature of the alleged error and to provide an
opportunity for correction.” United States v. Neal, 578 F.3d 270, 272 (5th Cir.
2009). We review the imposition of conditions of supervised release for abuse of
discretion. United States v. Paul, 274 F.3d 155, 165 (5th Cir. 2001). However,
“[w]hen a defendant objects to his sentence on grounds different from those
raised on appeal, we review the new arguments raised on appeal for plain error
only.” United States v. Mendina-Anicacio, 325 F.3d 638, 643 (5th Cir. 2003).
III
Although a district court generally has extensive discretion in imposing
conditions of supervised release, its discretion is limited by 18 U.S.C. § 3583(d),
which provides that the district court may impose conditions of supervised
release that are reasonably related to the factors in 18 U.S.C. § 3553(a). 18
U.S.C. § 3583(d)(1). Section 3553(a) states in relevant part that the district
court shall consider, inter alia, the following four factors: (1) “the nature and
circumstances of the offense and the history and characteristics of the
defendant;” (2) “the need . . . to afford adequate deterrence to criminal conduct;”
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(3) “the need . . .to protect the public from further crime of the defendant;” and
(4) “the need . . . to provide the defendant with needed educational or vocational
training, medical care, or other correctional treatment in the most effective
manner.” 18 U.S.C. § 3553(a)(1), (2)(B)–(D); see Paul, 274 F.3d at 164–65.
Section 3583(d) requires a reasonable relationship with only one of the four
factors, not necessarily all of them. United States v. Weatherton, 567 F.3d 149,
153 (5th Cir. 2009) (explaining a condition of release “must be reasonably related
to one of four factors”). In addition to being related to at least one of the four
factors, a condition of supervised release cannot involve a “greater deprivation
of liberty than is reasonably necessary for the purposes set forth in” § 3553. 18
U.S.C. § 3583(d)(2). The Supreme Court has recognized that “[t]he congressional
policy in providing for a term of supervised release after incarceration is to
improve the odds of a successful transition from the prison to liberty.” Johnson
v. United States, 529 U.S. 694, 708–09 (2000).
A
Tang asserts the district court erred procedurally by not adequately
explaining the reasons for the Internet ban and restriction on contact with
minors. 18 U.S.C. § 3553(c) requires the district court to “state in open court the
reasons for its imposition of the particular sentence,” and Tang asserts no such
reasons were given for these two conditions. We review for plain error because
Tang did not object on this ground at sentencing. Neal, 578 F.3d at 272. Thus,
we may not provide relief unless there was “(1) error, (2) that is plain, and (3)
that affects substantial rights.” United States v. Mares, 402 F.3d 511, 520 (5th
Cir. 2005) (internal quotation marks omitted). “Even when these elements are
met, we have discretion to correct the forfeited error only if it ‘seriously affects
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the fairness, integrity, or public reputation of judicial proceedings.’” United
States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009) (quoting Mares,
402 F.3d at 520).
Even assuming the district court plainly erred, any error did not affect
Tang’s substantial rights. We acknowledge the Sixth Circuit recently held a
district court’s plain error in failing to state the reasons for its imposition of
supervised release conditions affected the defendant’s substantial rights because
“the district court might not have imposed the special conditions of supervised
release if it had explained the basis for these conditions.” United States v. Doyle,
711 F.3d 729, 736 (6th Cir. 2013). There, the court stated “a district court’s error
affects a defendant’s substantial rights where the error affected the outcome of
the district court proceedings, insofar as the error may have had a substantial
influence on the outcome of the proceedings.” Id. at 735.
In our circuit, however, “[t]o show that an error affects a defendant’s
substantial rights, the defendant must show that it affected the outcome in the
district court” by “demonstrat[ing] a probability sufficient to undermine
confidence in the outcome.” Mondragon-Santiago, 564 F.3d at 364 (internal
quotation marks omitted). Though Mondragon-Santiago recognized that other
circuits have relaxed this requirement in the sentencing context, it held “to show
substantial prejudice, the defendant must prove that the error affected the
sentencing outcome.” Id. at 365 (emphasis added). Mondragon-Santiago noted
that “so far as within-Guidelines sentences are concerned,” our circuit
precedents reject the “argu[ment] that the district court’s error affect[s] . . .
substantial rights because it makes meaningful appellate review impossible.”
Id. There, the district court plainly erred by not adequately stating its reasons
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for the sentence, but the error did not affect the defendant’s substantial rights
because “he fail[ed] to show that an explanation would have changed his
sentence.” Id. The same result is required here because Tang does not explain
how compliance with § 3553(c) would have changed his sentence. Therefore, we
hold the district court did not reversibly err on procedural grounds.
B
Tang asserts the ban on Internet without approval from a probation officer
is contrary to U.S. Sentencing Guidelines Manual § 5D1.3(d)(7) and the § 3553(a)
factors. Our review is for abuse of discretion because Tang objected to this
condition at sentencing. Paul, 274 F.3d at 165. Section 5D1.3(d)(7)
recommends, as a special condition of release for an individual convicted of a
“sex offense,”3 a limitation on the “use of a computer or an interactive computer
service in cases in which the defendant used such items.” U.S. SENTENCING
GUIDELINES MANUAL § 5D1.3(d)(7)(B) (2012) (emphasis added). The instant
offense for which Tang was sentenced is his failure to register. His prior offense,
assault with intent to commit sexual abuse, not causing bodily injury, did not
involve a computer or the Internet. There is no evidence that Tang has ever
used the Internet to commit an offense of any sort. Thus, Tang asserts this
condition cannot be based on § 5D1.3(d)(7). Tang further asserts the Internet
ban does not satisfy the § 3553 factors. In particular, he claims the Internet ban
is not “reasonably related” to the nature of the offense (here, the failure to
register) and involves a greater deprivation of liberty than reasonably necessary
given the circumstances. See 18 U.S.C. § 3583(d)(1)–(2).
3
Tang’s failure to register qualifies as a sex offense. See U.S. SENTENCING GUIDELINES
MANUAL § 5D1.2 cmt. n.1.
9
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We agree. The Internet ban is not “reasonably related to the factors set
forth in” § 3553(a) and involves a greater deprivation of liberty than reasonably
necessary. 18 U.S.C. § 3583(d)(1)–(2). The ban does not relate to the “nature
and circumstances” of Tang’s offense: here, the failure to register as a sex
offender. 18 U.S.C. § 3553(a)(1); see Unites States v. Miller, 665 F.3d 114, 130
(5th Cir. 2011) (“The decisions of our court have tended to permit sentencing
courts to give more weight to the goals of protecting the public and preventing
recidivism in balancing those considerations with a defendant’s liberty interests
when Internet usage was related to the offense for which the defendant was
convicted.”) (emphasis added), cert. denied, 132 S. Ct. 2773 (2012). Nor does it
relate to “the history and characteristics of the defendant” because Tang has
never committed an offense over the Internet and his prior conviction for assault
with intent to commit sexual abuse did not involve any use of a computer or the
finding of the minor victim online. 18 U.S.C. § 3553(a)(1). Deterrence is only
marginally promoted by an Internet ban on an individual who has never used
computers for illicit purposes nor shown a proclivity to do so in the future, even
though, as the Government points out, the Internet is often used for such
purposes. 18 U.S.C. § 3553(a)(2)(B); see also Pepper v. United States, 131 S. Ct.
1229, 1239–40 (2011) (“It has been uniform and constant in the federal judicial
tradition for the sentencing judge to consider every convicted person as an
individual . . . .”) (citation and quotation marks omitted). Lastly, restricting
Tang’s access to a computer has the potential to stifle any “educational and
vocational training” Tang may need, so this factor weighs against imposing an
Internet ban. 18 U.S.C. § 3553(a)(2)(D). Although Internet bans are often
reasonable conditions of release for sex offenders, the Sentencing Guidelines
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explicitly state that they are reasonable when the defendant used a computer in
the underlying offense, which Tang did not do here. U.S. SENTENCING
GUIDELINES MANUAL § 5D1.3(d)(7)(B) (2012). That the ban may be limited
insofar as Tang may gain access to the Internet after requesting permission does
not change the requirement that the condition be “reasonably related” to the §
3553 factors, a showing that has not been made. See 18 U.S.C. § 3583(d)(1).
Therefore, we hold the district court abused its discretion in imposing this
blanket ban on all Internet use absent permission from a probation officer.
C
Tang appeals the condition that he “participate in a mental health
program—treatment program and/or sex offender treatment program provided
by the registered sex offender treatment provider, as approved by the United
States Probation Office.” Tang acknowledges he has had past problems with
alcoholism and depression. For that reason, he does not dispute that mental
health treatment is a reasonable condition of his supervised release. Rather, his
challenge is directed at certain aspects of the condition. Specifically, he points
to (1) the physiological testing, (2) the sex offender treatment, (3) the mandatory
nature of the treatment, (4) the funding of the treatment, and (5) the waiver of
confidentiality in counseling sessions.
The first three challenges are without merit because the district court
included them only as options for the mental health professionals who treat
Tang, not as mandatory conditions. First, Tang complains that by including
“physiological testing” in its written judgment regarding his sentence, the
district court left available the troubling possibility that his treatment include
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intrusive and objectionable procedures, like plethysmography.4 The language
of the judgment, however, states that Tang’s treatment “may include . . .
physiological testing,” not “must include” such testing (emphasis added).
Second, Tang asserts the district court did not realize it could mandate
mental health treatment apart from sex offender treatment. The Sentencing
Guidelines contain two relevant provisions, one for mental health treatment and
another for sex offender treatment. Compare U.S. SENTENCING GUIDELINES
MANUAL § 5D1.3(d)(5) (2012), with U.S. SENTENCING GUIDELINES MANUAL
§ 5D1.3(d)(7) (2012). According to Tang, the district court did not have to—and
would not have, had it understood its authority—mandated treatment by the sex
offender treatment provider or left open the possibility of sex offender treatment,
but rather should have mandated only mental health treatment. The district
court, however, included sex offender treatment only as an alternative or
additional option to mental health treatment. The fact that any mental health
counseling would be administered by the sex offender treatment program does
not mean it would necessarily become sex offender treatment, as the district
4
“Penile plethysmograph testing is a procedure that involves placing a pressure-
sensitive device around a man’s penis, presenting him with an array of sexually stimulating
images, and determining his level of sexual attraction by measuring minute changes in his
erectile responses.” United States v. Weber, 451 F.3d 552, 554 (9th Cir. 2006) (internal
quotation marks omitted). Plethysmography has become “routine in the treatment of sexual
offenders and is often imposed as a condition of supervised release.” Id. In his original
appellate brief, Tang mistakenly cited the district court’s written judgment as including
plethysmograph testing as part of the sex offender treatment that was imposed on him as a
condition of supervised release. In his Reply Brief, Tang recognizes that this was error and
clarifies that the judgment at no point mentions plethysmography explicitly. Nevertheless,
Tang asserts plethysmography is a potential form of “physiological testing,” and that, despite
the lack of its explicit mention at the oral pronouncement of the sentence or in the written
judgment, it is a distinct possibility that Tang could be subjected to plethysmography as a
condition of his supervised release.
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court instructed the program to administer “a mental health . . . treatment
program and/or sex offender treatment program” (emphasis added). The
district court simply left to the discretion of the treatment provider the decision
of what type of treatment would be most effective; it did not mandate sex
offender treatment.
Third, Tang asserts the treatment is, but should not be, mandatory. We
are aided in our understanding of this issue by the district court’s response to
Tang’s objection at sentencing, where the court indicated the treatment is “not
mandatory . . . . Just if [the Probation Office] determine[s] after he gets out
based on their own evaluation that they think he needs some mental health
treatment, that they would be able to refer him.” Accordingly, Tang’s first three
challenges are not ripe for review. United States v. Carmichael, 343 F.3d 756,
761 (5th Cir. 2003). If he is in fact required to submit to conditions such as
invasive physiological testing procedures, he may then petition the district court
for modification. 18 U.S.C. § 3583(e)(2); FED. R. CRIM. P. 32.1(c); see United
States v. Rhodes, 552 F.3d 624, 628–29 (7th Cir. 2009) (“As the condition is
stated, there is a fair amount of discretion regarding the techniques to be
utilized. . . . [W]e would do well to await a more concrete presentation of the
issue. Regardless, Rhodes can later petition the district court to modify the
condition.”) (citations omitted).
Fourth, Tang asserts the district court gave conflicting directions about
who will bear financial responsibility for the treatment. Tang did not object to
this aspect of the condition at sentencing; therefore, our review is for plain error.
Neal, 578 F.3d at 272. During sentencing the district court stated, “The
defendant will incur any costs associated with such sex offender treatment
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program and testing based on ability to pay as determined by the probation
officer,” but in its response to Tang’s objections it said that “the probation
department actually is the one who pays for it.” The district court, however,
could have reasonably thought that by tying payment to Tang’s ability to pay,
the Probation Office would actually pay for the treatment since Tang’s counsel
stated Tang “doesn’t have much money.” Because we give credence to the
district court’s response that “the probation department actually is the one
[which would pay] for it,” the district court did not plainly err in allocating the
financial burden of the treatment.
Fifth, Tang asserts the confidentiality waiver is contrary to the fourth
§ 3553 factor.5 Tang objected to the waiver at sentencing, so our review is for
abuse of discretion. Paul, 274 F.3d at 165. Tang premises his challenge on his
inability to share his personal thoughts with any psychotherapist without
running the risk that they would be used against him at a revocation hearing.
The waiver could, however, advance the purposes of the fourth § 3553 factor by
allowing the probation officer to effectively monitor and aid in Tang’s progress.
Because the condition need only relate to one factor, Weatherton, 567 F.3d at153,
and the waiver could aid in deterrence, the district court properly imposed this
condition. See United States v. Dupes, 513 F.3d 338, 344–45 (2d Cir. 2008)
(affirming confidentiality waiver condition on plain error review (citing Unites
States v. Lopez, 258 F.3d 1053, 1057 (9th Cir. 2001) and United States v. Cooper,
171 F.3d 582, 587 (8th Cir. 1999))). Therefore, the district court did not abuse
its discretion by imposing the confidentiality waiver condition.
5
A special condition of supervised release can be reasonably related to “provid[ing] the
defendant with needed educational or vocational training, medical care, or other correctional
treatment in the most effective manner.” 18 U.S.C. § 3553(a)(2)(D); see 18 U.S.C. § 3583(d)(1).
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D
Tang appeals the restriction on contact with minors, including his own
children, and on dating persons with minor children without approval from a
probation officer. Tang asserts the restriction on dating in the written judgment
conflicts with the oral pronouncement of sentence, which restricts cohabitation
but not dating. He asserts the restriction on contact with minors, including
children of his own, is overbroad and not reasonably related to the § 3553
factors.
In the oral pronouncement the district court stated, “The defendant shall
not cohabitate with anyone who has children under the age of 18 unless
approved in advance by the probation officer.” The written judgment, however,
states, “The defendant shall not date or cohabitate with anyone who has children
under the age of 18 unless approved in advance by the probation officer”
(emphasis added). Since Tang did not have the opportunity to object to the
dating restriction at the time of sentencing (as it had not yet been pronounced),
we review for abuse of discretion rather than plain error. United States v.
Bigelow, 462 F.3d 378, 381 (5th Cir. 2006). In Bigelow, we held where there is
a conflict between the oral pronouncement and the written judgment, the oral
pronouncement controls. Id. at 381. If the written judgment simply clarifies an
ambiguity in the oral pronouncement, we look to the sentencing court’s intent
to determine the sentence. United States v. Warden, 291 F.3d 363, 365 (5th Cir.
2002). Here, the oral pronouncement conflicts with the written judgment by
adding a new restriction, as cohabitation generally concerns Tang’s residential
life and dating generally concerns Tang’s social life. See Bigelow, 462 F.3d at
381; see also United States v. Vega, 332 F.3d 849, 852–53 (5th Cir. 2003)
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(explaining defendant’s “constitutional right to be present at sentencing” is
reason for ensuring oral pronouncement controls when written judgment adds
condition). Accordingly, the district court abused its discretion by including an
additional restriction in the written judgment that was not part of the oral
pronouncement of sentence.
Tang asserts the restriction on contact with minors is a greater
deprivation than reasonably necessary and unrelated to the § 3553 factors. In
particular, Tang asserts his prior conviction does not evince a generalized
inappropriate interest in children that would justify a restriction on his
parenting decisions as a deterrent to potential future criminal activity.6 Our
review is for abuse of discretion because Tang objected to this condition at
sentencing. Paul, 274 F.3d at 165.
The restriction on contact with minors is reasonably related to the § 3553
factors. First, it is reasonably related to Tang’s history, specifically his
conviction for assault of a minor with intent to commit sexual abuse. Second, it
is reasonably related to deterrence and protecting the public, as “Congress has
made clear that children . . . are members of the public it seeks to protect by
permitting a district court to impose appropriate conditions on terms of
supervised release.” United States v. Rodriguez, 558 F.3d 408, 417 (5th Cir.
2009). Lastly, the restriction is not a greater deprivation than reasonably
necessary as Tang can request permission to have contact with minors (or
cohabitate with someone having minor children). See 18 U.S.C. § 3583(d)(2).
6
It is not clear in the record whether Tang currently has children of his own.
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E
Tang asserts the district court unconstitutionally delegated its authority
to the Probation Office by giving the Office discretion over the length of Tang’s
mental health or sex offender treatment and Tang’s contact with minors.7 We
review this challenge for plain error because Tang did not object to the
delegation at his sentencing. Neal, 578 F.3d at 272. We addressed a similar
challenge to the Probation Office’s discretion over counseling in United States v.
Bishop, and we held any error in the limits of “a district court’s authority to
delegate to a probation officer the determination of whether and to what extent
a convicted defendant on supervised release must participate in counseling” was
not plain. 603 F.3d 279, 281 (5th Cir. 2010). In addition, we addressed a similar
challenge to the Probation Office’s discretion over contact with minors in United
States v. Rodriguez:
Probation officers have broad statutory authority to advise and
supervise persons on supervised release to improve the releasees’
conduct and lives, and to “perform any other duty that the court
may designate.” See 18 U.S.C. §§ 3601, 3603(3), (10). In Rodriguez’s
case, the district court recognized the association and residence
restrictions should be flexible, and accordingly designated to the
probation officer the duties to advise and supervise Rodriguez with
respect to these restrictions.
558 F.3d 408, 414–15 (5th Cir. 2009) (footnote omitted). Like in Rodriguez and
Bishop, Tang’s challenges do not succeed in showing plain error on the part of
the district court. Rodriguez, 558 F.3d at 417; Bishop, 603 F.3d at 281.
7
Tang also asserts the district court unconstitutionally delegated its authority by giving
the Probation Office discretion over Tang’s Internet use, but we do not address this assertion
because we hold the Internet ban is not reasonably related to the § 3553 factors. See Part
III.A, supra.
17
Case: 12-20043 Document: 00512244014 Page: 18 Date Filed: 05/16/2013
No. 12-20043
IV
In summary, we AFFIRM the mental health or sex offender treatment
condition and the restriction on contact with minors and VACATE the Internet
ban and dating restriction.
18