United States v. Sullivan, Roger

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 5, 2006 Decided June 27, 2006

No. 05-3161

UNITED STATES OF AMERICA,
APPELLEE

v.

ROGER JAMES SULLIVAN,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 04cr00082-01)

Laina C. Wilk argued the cause for appellant. With her on
the briefs was Thomas G. Corcoran, Jr. Herbert A. Dubin
entered an appearance.

Suzanne C. Nyland, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Kenneth L.
Wainstein, U.S. Attorney, and Roy W. McLeese, III, Thomas J.
Tourish, Jr., and Barbara E. Kittay, Assistant U.S. Attorneys.

Before: SENTELLE and BROWN, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
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Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
Concurring opinion filed by Circuit Judge SENTELLE.
EDWARDS, Senior Circuit Judge: Appellant Roger James
Sullivan pled guilty to one count of knowingly possessing child
pornography images that were transported in interstate
commerce via the Internet, in violation of 18 U.S.C.
§ 2252A(a)(5)(B) (2000). Appellant moved to have his
indictment dismissed by the District Court, arguing that
Congress lacked the power to proscribe purely intrastate
possession of pornography, regardless of whether the
pornography had traversed interstate over the Internet. The
District Court denied Sullivan’s motion, holding that Congress
acted within its authority under Article I, § 8 of the Constitution
when it criminalized certain activities relating to material
constituting or containing child pornography.
On appeal, Sullivan renews his constitutional claim. We
agree with the District Court that his argument fails. The
Supreme Court’s decision in Gonzales v. Raich, 125 S. Ct. 2195
(2005), which was decided after the District Court’s ruling,
directly controls the disposition of this case. We also reject
appellant’s objections to the conditions of his supervised release
imposed by the District Court.
I. BACKGROUND
Section 2252A(a)(5)(B) prohibits:
knowingly possess[ing] any book, magazine, periodical,
film, videotape, computer disk, or any other material that
contains an image of child pornography that has been
mailed, or shipped or transported in interstate or foreign
commerce by any means, including by computer, or that
was produced using materials that have been mailed, or
 3

shipped or transported in interstate or foreign commerce by
any means, including by computer.
18 U.S.C. § 2252A(a)(5)(B) (2000). On February 19, 2004,
appellant was indicted on one count of possession of ten or more
items of child pornography that had been transported in
interstate or foreign commerce by computer, in violation of
§ 2252A(a)(5)(B). In November 2004, Sullivan executed a plea
agreement, which included a proffer of facts supporting a guilty
plea on the § 2252A(a)(5)(B) charge; he then entered a
conditional plea of guilty, preserving for appeal the issue of
whether § 2252A(a)(5)(B), as applied to him, exceeded
Congress’ authority under the Commerce Clause.
The proffer of facts supporting the plea agreement is
straightforward. In 2002, appellant was working for FOX News
Productions in Washington, D.C. FOX is a broadcast and cable
news network that produces and distributes news and
information programs throughout the United States. In March
2002, the FBI received a telephone call from an employee at
FOX, reporting that approximately 75,000 files of pornography
had been found on the computer at appellant’s workplace. The
FBI retrieved the hard drive and “zip disks” from appellant’s
computer and found thousands of images of child pornography
that had been downloaded from various Internet sites, through
Usenet, located in Atlanta, Georgia, via the FOX News Internet
provider, MCI UUNet, whose server is located in Herndon,
Virginia. The National Center for Missing and Exploited
Children analyzed the pornography and determined that many
of the images were downloaded from Eastern European and
Russian Internet sites. An officer from the United States Navy
Center for Child Protection would have testified that, in her
expert opinion, at least 24 of the images given to her for
examination contained enough detail and content to determine
that they depicted children who were under 18 years of age and
four images depicted children who were prepubescent. An
 4

expert in Forensic Audio, Video and Image Analysis from the
FBI Laboratory would have testified that these images were
taken from photographs of real children and were not artificially
created.
Appellant admitted that he personally downloaded the
images of child pornography from the Internet. He admitted that
he knew it was illegal to download the imagines of child
pornography from the Internet. He acknowledged that he had
exclusive access to his computer, so no one else was involved in
downloading the pornography to his computer. He also
admitted that he had copied the contents of his hard drive to a
substitute hard drive and that he had acquired the zip disks in
order to move personal data, including the images of child
pornography, from the hard drive of his workplace computer.
On December 8, 2004, Sullivan moved to dismiss the
indictment on the ground that 18 U.S.C. § 2252A(a)(5)(B), as it
applied to him, exceeded Congress’ authority under the
Commerce Clause. On December 22, the District Court
convened a motions hearing and both parties offered arguments
addressing the Eleventh Circuit’s decision in United States v.
Maxwell, 386 F.3d 1042 (11th Cir. 2004) (“Maxwell I”), which
had held that Congress could not regulate intrastate possession
of child pornography. Maxwell I was vacated and remanded by
the Supreme Court in light of Gonzales v. Raich, see United
States v. Maxwell, 126 S. Ct. 321 (2005) (mem), and
subsequently overturned by the Eleventh Circuit, see United
States v. Maxwell, 446 F.3d 1210 (11th Cir. 2006) (“Maxwell
II”).
Without the benefit of either Raich or Maxwell II, the
District Court denied appellant’s motion to dismiss the
indictment. The court ruled that § 2252A(a)(5)(B) was
constitutional as applied to Sullivan, because the images of
child pornography were “instrumentalities” or “things” in
interstate commerce and passed over the Internet, a “channel” of
 5

interstate commerce, or, alternatively, because the conduct at
issue – possession of child pornography – has a substantial
relation to interstate commerce. In the trial court’s view,
Congress acted within its authority when it sought to limit the
supply and demand for child pornography by targeting all
participants in the illicit market:
Congress intended to reach people who create this kind of
material, and also people who are seeking it through
whatever means, including through the Internet. People
like Mr. Sullivan fuel the market for it.
Motions Tr. at 30.
Subsequently, on September 16, 2005, the District Court
conducted a hearing to address issues related to appellant’s
sentence. After securing the parties’ agreement that the
Presentence Report (“PSR”) contained no factual errors, the
court went on to hear arguments regarding the proper sentence.
The court explained that it would apply the 2002 Sentencing
Guidelines, not the version currently in force, in order to give
appellant the benefit of a lower base offense level. See United
States v. Bolla, 346 F.3d 1148, 1151 n.1 (D.C. Cir. 2003)
(discussing U.S.S.G. §§ 1B1.11(a) & 1B1.11(b)(1)). The parties
presented arguments related mainly to Sullivan’s psychological
condition and the method of applying the Guidelines in light of
United States v. Booker, 543 U.S. 220 (2005). The District Court
then sentenced appellant to 30 months’ imprisonment, to be
followed by two years of supervised release. Three of the
conditions of supervised release are at issue in this appeal:
(1) The defendant shall not possess or use a computer that
has access to any “on-line computer service” at any
location, including his place of employment, without the
prior written approval of the Probation Office. “On-line
computer service” includes, but is not limited to, any
 6

Internet service provider, bulletin board system, or any
other public or private computer network.
...
(2) Without the approval of a legal guardian, the defendant
shall have no direct, or indirect, contact with children, age
18 or younger, and shall refrain from loitering in any place
where children congregate, including but not limited to
residences, arcades, parks, playgrounds, and schools. He
shall not reside with a child or children under the age of 18
without the expressed and written approval of the minor’s
legal guardian and the written permission of the Court.
(3) The defendant shall not possess any pornographic,
sexually oriented, or sexually stimulating materials,
including visual, auditory, telephonic, or electronic media,
and/or computer programs or services that relevant [sic] to
the offender’s deviant behavior pattern. He shall not
patronize any place where pornography or erotica can be
accessed, obtained, or viewed, including establishment [sic]
where sexual entertainment is available.
Judgment in a Criminal Case, United States v. Sullivan, CR 04-
82 (D.D.C. 2005), at 3-4 (numbering added).
Appellant now renews his challenge to the indictment,
maintaining that, as applied to him, § 2252A(a)(5)(B) represents
an unconstitutional exercise of congressional power. He also
challenges certain of the conditions of supervised release
imposed by the District Court.
II. ANALYSIS
A. The Constitutionality of Sullivan’s Indictment
Appellant makes the following argument in support of his
appeal:
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Title 18 U.S.C. § 2252A(a)(5)(B) is unconstitutional as
applied to Sullivan because the statute exceeds Congress’
authority pursuant to the Commerce Clause. In [United
States v. Lopez, 514 U.S. 549, 558 (1995)], the Supreme
Court identified three areas that Congress could regulate
pursuant to the Commerce Clause: 1) the channels of
interstate commerce; 2) the instrumentalities of interstate
commerce; and 3) conduct that substantially affects
interstate commerce. 514 U.S. at 558-59. As case authority
shows, the conduct regulated here – possession – is a purely
intrastate activity, and therefore if it may be regulated at all,
it can be regulated only pursuant to the third Lopez
category. . . . Congress cannot regulate Sullivan’s conduct
pursuant to the third Lopez category because the conduct
did not substantially affect interstate commerce.
Appellant’s Br. at 11-12. The problem with this argument is
that it completely ignores the Court’s decision in Gonzales v.
Raich.
The question before the Court in Raich was “whether the
power vested in Congress by Article I, § 8, of the Constitution
‘[t]o make all Laws which shall be necessary and proper for
carrying into Execution’ its authority to ‘regulate Commerce
with foreign Nations, and among the several States’ includes the
power to prohibit the local cultivation and use of marijuana in
compliance with California law.” 125 S. Ct. at 2199. In
answering this question in the affirmative, the Court tellingly
noted:
Our case law firmly establishes Congress’ power to regulate
purely local activities that are part of an economic “class of
activities” that have a substantial effect on interstate
commerce. See, e.g., [Perez v. United States, 402 U.S. 146,
151 (1971)]; Wickard v. Filburn, 317 U.S. 111, 128-129
(1942). As we stated in Wickard, “even if appellee’s
activity be local and though it may not be regarded as
 8

commerce, it may still, whatever its nature, be reached by
Congress if it exerts a substantial economic effect on
interstate commerce.” Id., at 125. We have never required
Congress to legislate with scientific exactitude. When
Congress decides that the “‘total incidence’” of a practice
poses a threat to a national market, it may regulate the
entire class.
Id. at 2205-06. Careful review of the Court’s decision in Raich
makes it clear to us that the holding there controls the
disposition of this case. If, under Raich, Congress may
criminalize purely intrastate production and use of marijuana, it
follows here that it may criminalize possession of child
pornography that has been transmitted through multiple states
via the Internet.
Under federal law, marijuana is classified as a Schedule I
drug, 21 U.S.C. § 812(c), and its use is therefore illegal, id.
§§ 841(a)(1), 844(a), with a very limited exception for research
uses, id. § 823(f). California’s Compassionate Use Act,
however, allowed certain patients with a doctor’s approval to
cultivate, possess, and consume marijuana. Raich, 125 S. Ct. at
2199. The plaintiffs in Raich included “California residents who
suffer[ed] from a variety of serious medical conditions and . . .
sought to avail themselves of medical marijuana pursuant to the
terms of the Compassionate Use Act.” Id. at 2199-2200. They
were under the care of licensed, board-certified family
practitioners, who had concluded that marijuana was the only
drug available that would give these parties effective treatment.
Id. at 2200. When it was determined that their possession and
use of marijuana violated federal law, the Raich plaintiffs
brought suit against the Attorney General seeking injunctive and
declaratory relief prohibiting the enforcement of the Controlled
Substances Act (“CSA”) insofar as it abrogated their rights
under the Compassionate Use Act. As noted above, the only
issue before the Court in Raich was whether Congress could
 9

criminalize intrastate possession and use of marijuana.
Significantly, the Raich plaintiffs did not attack the provisions
of the CSA on their face, but mounted only an as-applied
challenge. See id. at 2204-05. Despite the narrowness of the
challenge, the Court found no constitutional defect in the
Government’s enforcement of federal drug law.
In support of the proposition that Congress had “power to
regulate purely local activities that are part of an economic
‘class of activities’ that have a substantial effect on interstate
commerce,” id. at 2205, the Court described the evolution of the
Commerce Clause:
As charted in considerable detail in United States v. Lopez,
our understanding of the reach of the Commerce Clause, as
well as Congress’ assertion of authority thereunder, has
evolved over time. The Commerce Clause emerged as the
Framers’ response to the central problem giving rise to the
Constitution itself: the absence of any federal commerce
power under the Articles of Confederation. For the first
century of our history, the primary use of the Clause was to
preclude the kind of discriminatory state legislation that had
once been permissible. Then, in response to rapid industrial
development and an increasingly interdependent national
economy, Congress “ushered in a new era of federal
regulation under the commerce power,” beginning with the
enactment of the Interstate Commerce Act in 1887, 24 Stat.
379, and the Sherman Antitrust Act in 1890, 26 Stat. 209,
as amended, 15 U.S.C. § 2 et seq.
Cases decided during that “new era,” which now spans
more than a century, have identified three general
categories of regulation in which Congress is authorized to
engage under its commerce power. First, Congress can
regulate the channels of interstate commerce. Perez v.
United States, 402 U.S. 146, 150 (1971). Second, Congress
has authority to regulate and protect the instrumentalities of
 10

interstate commerce, and persons or things in interstate
commerce. Ibid. Third, Congress has the power to regulate
activities that substantially affect interstate commerce.
Ibid.; NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1,
37, 57 S.Ct. 615, 81 L.Ed. 893 (1937).
Id. at 2205 (footnotes omitted). The Court then noted that only
the third category – regulation of activities that substantially
affect interstate commerce – was at issue in the case. Id.
In amplifying this third category, the Raich Court focused
on its decision in Wickard v. Filburn, 317 U.S. 111 (1942),
which had held that Congress’ interstate commerce authority
allowed it to regulate the production of wheat intended for
personal consumption on a farm. Central to the Court’s analysis
in Wickard was the premise that even if the effect of homegrown
wheat on interstate commerce was trivial, it remained within the
ambit of congressional authority. See Wickard, 317 U.S. at 127-
28. The Raich Court found that the “similarities between this
case and Wickard are striking.” 125 S. Ct. at 2206. Both cases
involved the cultivation, “for home consumption, [of] a fungible
commodity for which there is an established” interstate market.
Id. And “[j]ust as the Agricultural Adjustment Act [in Wickard]
was designed ‘to control the volume [of wheat] moving in
interstate and foreign commerce in order to avoid surpluses . . .’
and consequently control the market price, a primary purpose of
the CSA [in Raich] is to control the supply and demand of
controlled substances in both lawful and unlawful drug
markets.” Id. at 2206-07 (third and fourth alterations in original)
(internal citations omitted). The Court thus concluded that
“Congress had a rational basis for concluding that leaving home-
consumed marijuana outside federal control would . . . affect
price and market conditions,” especially given the risk of illicit
diversion of homegrown marijuana into the interstate market.
Id. at 2207.
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The Court in Raich then stated the applicable test for
assessing the scope of Congress’ authority under the Commerce
Clause to enact comprehensive legislation:
[W]e stress that the task before us is a modest one. We
need not determine whether respondents’ activities, taken
in the aggregate, substantially affect interstate commerce in
fact, but only whether a “rational basis” exists for so
concluding.
Id. at 2208. Applying this test, the Court held that,
[g]iven the enforcement difficulties that attend
distinguishing between marijuana cultivated locally and
marijuana grown elsewhere . . . and concerns about
diversion into illicit channels, we have no difficulty
concluding that Congress had a rational basis for believing
that failure to regulate the intrastate manufacture and
possession of marijuana would leave a gaping hole in the
CSA. Thus, as in Wickard, when it enacted comprehensive
legislation to regulate the interstate market in a fungible
commodity, Congress was acting well within its authority
to “make all Laws which shall be necessary and proper” to
“regulate Commerce . . . among the several States.” U.S.
Const., Art. I, § 8. That the regulation ensnares some
purely intrastate activity is of no moment. As we have done
many times before, we refuse to excise individual
components of that larger scheme.
Id. at 2209 (footnote omitted and second ellipsis in original).
Applying this test to facts of this case, we must conclude
that Congress was acting well within its authority under Article
I, § 8 – i.e., “to regulate activities that substantially affect
interstate commerce,” Raich, 125 S. Ct. at 2205 – in
criminalizing possession of child pornography transmitted
through several states via the Internet. The prohibition against
possessing child pornography transported in interstate commerce
 12

by computer is one important aspect of a comprehensive
legislative scheme aimed at eliminating traffic in child
pornography. Section 2252A(a)(5)(B), which is at issue in this
case, was enacted as part of the Child Pornography Prevention
Act of 1996, Pub. L. No. 104-208, §121(3), 110 Stat. 3009,
3009-28 (1996) (the “CPPA”). The regulatory scheme enacted
by Congress to deal with child pornography prohibits:
exploiting children by producing child pornography using
materials in interstate commerce, 18 U.S.C. § 2251 (2000);
transporting, shipping, or receiving depictions of child
pornography in foreign or interstate commerce, id. § 2252;
producing or exporting child pornography abroad with the intent
that it enter the United States, id. § 2260; and possessing child
pornography that has traveled in interstate commerce, id.
§ 2252A. The statute also subjects property used in child
pornography offenses to criminal and civil forfeiture provisions.
Id. §§ 2253-2254.
Like the illicit drug networks motivating passage of the
CSA, the trade in child pornography is “quintessentially
economic.” See Raich, 125 S. Ct. at 2211. The Court explained
that “economics” refers to “the production, distribution, and
consumption of commodities.” Id. at 2211 (quoting WEBSTER’S
THIRD NEW INTERNATIONAL DICTIONARY 720 (1966)). The
activities targeted by Congress in its anti-child pornography
legislation clearly fit this definition. Like marijuana, child
pornography is “a fungible commodity for which there is an
established, albeit illegal, interstate market.” Id. at 2206.
Controlling the trade of child pornography thus requires
regulation of the illicit marketplace. Intrastate possession of
digital child pornography is susceptible to “diversion” into
interstate markets, at least as much as marijuana. Accordingly,
the Government’s efforts to control the illicit marketplace by
limiting supply and demand is facilitated by regulation of
intrastate possession of child pornography.
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Indeed, the economic effects in this case appear to be even
more compelling than those in Raich or Wickard. In contrast to
wheat or marijuana, the supply of electronic images of child
pornography has a viral character: every time one user
downloads an image, he simultaneously produces a duplicate
version of that image. Transfers of wheat or marijuana merely
subdivide an existing cache; transfers of digital pornography, on
the other hand, multiply the existing supply of the commodity,
so that even if the initial possessor’s holdings are destroyed,
subsequent possessors may further propagate the images. This
means that each new possessor increases the available supply of
pornographic images. This multiplying effect highlights the
importance of eliminating a possessor’s stash in the first
instance, before it can be disseminated into the marketplace.
As Congress noted in the findings attached to the CPPA,
“prohibiting the possession and viewing of child pornography
will encourage the possessors of such material to rid themselves
of or destroy the material, thereby helping to protect the victims
of child pornography and to eliminate the market for the sexual
exploitative use of children.” Pub. L. No. 104-208,
§ 121(1)(12), 110 Stat. at 3009-27 (emphasis added). In
Wickard, the Court recognized that the congressional objective
of controlling the market for wheat by regulating its price “can
be accomplished as effectively by sustaining or increasing the
demand as by limiting supply,” including the homegrown supply
consumed by farmers. 317 U.S. at 127-28. Criminalizing
possession of child pornography likewise increases the “price”
of pornography by attaching the risk of prosecution, a market
intervention meant to eliminate the illicit trade.
In sum, following Raich, we find that a rational basis exists
for believing that failure to regulate the intrastate possession of
child pornography that has been “transported in interstate or
foreign commerce . . . by computer,” see 18 U.S.C.
§ 2252A(a)(5)(B), would leave a significant gap in Congress’
 14

comprehensive efforts to eliminate the market for sexually
exploitative uses of children. That the application of
§ 2252A(a)(5)(B) might “ensare[] some purely intrastate activity
is of no moment.” Raich, 125 S. Ct. at 2209. Congress
legitimately identified a national problem that is quintessentially
economic, i.e., it involves the manufacture and distribution of a
commodity subject to the forces of supply and demand. To
ameliorate that problem, Congress intervened in an illicit
marketplace. Because it could rationally conclude that intrastate
possession of child pornography has an effect on those market
forces, it acted within its authority in proscribing possession.
Both the holding and reasoning of Raich apply easily to this
case.
It is noteworthy that every appellate court that has
considered this question post-Raich has reached the same
conclusion that we reach today. In Maxwell II, the Eleventh
Circuit was able to “find very little to distinguish
constitutionally Maxwell’s claim from Raich’s.” Maxwell II,
446 F.3d at 1216 (footnote omitted). Following the Court’s
analysis in Raich, the Maxwell II court determined that “the
CPPA is part of a comprehensive regulatory scheme
criminalizing the receipt, distribution, sale, production,
possession, solicitation and advertisement of child
pornography.” Id. at 1216-17. The court therefore reversed its
earlier course and upheld Maxwell’s conviction. The Fourth
Circuit likewise rejected an as-applied challenge to
§ 2252A(a)(5)(B) in United States v. Forrest, 429 F.3d 73 (4th
Cir. 2005). Having found the case before it “strikingly similar
to Raich,” the court explained that “in both instances Congress
had a rational basis for concluding that prohibition of mere local
possession of the commodity was essential to the regulation of
‘an established, albeit illegal, interstate market.’” Id. at 78
(quoting Raich, 125 S. Ct. at 2206). Finally, the Tenth Circuit
has twice invoked Raich in rejecting similar attacks on § 2251’s
prohibition against producing child pornography using materials
 15

that have been shipped in interstate commerce, United States v.
Grimmett, 439 F.3d 1263 (10th Cir. 2006); United States v.
Jeronimo-Bautista, 425 F.3d 1266 (10th Cir. 2005), and the
Sixth Circuit has cited Raich in rebuffing an attack on
§ 2252(a)(1), United States v. Chambers, 441 F.3d 438 (6th Cir.
2006). Applying the principles set forth in Raich, we, too, are
constrained to reject the constitutional challenge to
§ 2252A(a)(5)(B).
B. The Terms of Supervised Release
Sullivan also challenges the conditions of supervised
release, focusing on the conditions that (1) restrict his use of
computer and Internet services, (2) require him to have approval
from the Probation Office before having any contact with
minors, and (3) forbid his possession of “sexually stimulating
material” and video equipment. He asserts that these conditions
were unlawfully imposed, because they were not listed as
suggested conditions of release in either the 2002 Sentencing
Guidelines or the PSR and he received no other advance notice
that the court might impose them, as allegedly required by
Federal Rule of Criminal Procedure 32(i)(1)(C). Appellant also
contends that the conditions are inconsistent with the statutory
factors listed in 18 U.S.C. § 3553(a) (2000), which the court was
bound to consider in issuing non-mandatory (or “special”) terms
of supervised release, see id. § 3583(d), and that the District
Court never “substantiated” the need for the disputed conditions.
Applying the applicable plain error standard of review, we find
none of these arguments persuasive.
Our analysis of appellant’s sentencing arguments turns on
his failure to lodge any objections with the District Court.
Appellant and his counsel stood in the sentencing judge’s
presence, listened to the specific terms of the sentence, and yet
voiced no objections to any alleged lack of advance notice or
opportunity to comment on the proposed conditions, or to the
substance of the terms of supervised release. When a defendant
 16

fails to raise a timely objection with the District Court, we
review arguments introduced on appeal for plain error. United
States v. Simpson, 430 F.3d 1177, 1183 (D.C. Cir. 2005). To
prevail, an appellant must show that the District Court
committed (1) a legal error that was (2) “plain” (a term that is
synonymous with “clear” or “obvious”), and that (3) affected the
appellant’s substantial rights. United States v. Olano, 507 U.S.
725, 732-34 (1993). If all three conditions are met, we retain
discretion to notice a forfeited error, but only if (4) the error
seriously affects the fairness, integrity, or public reputation of
judicial proceedings. Id. at 735-36.
Appellant first contends that, because the challenged
conditions of supervised release were not listed as mandatory or
discretionary conditions in the applicable Sentencing
Guidelines, the District Court’s imposition of the conditions sua
sponte violated Rule 32. Under Rule 32, a sentencing court
“must allow the parties’ attorneys to comment on the probation
officer’s determinations and other matters relating to an
appropriate sentence.” FED. R. CRIM. P. 32(i)(1)(C). Imposing
conditions that were never forecast to a defendant, appellant
argues, runs afoul of this requirement. We need not decide this
question, because even if it was error for the District Court to
impose the disputed conditions without giving advance notice to
Sullivan, it most certainly was not reversible error under the
plain error rule.
Sullivan’s argument that the District Court committed error
in failing to give him advance notice of the conditions of
supervised release rests on a purported analogy to Burns v.
United States, 501 U.S. 129 (1991). The Court in Burns held
that, “before a district court can depart upward on a ground not
identified as a ground for upward departure either in the
presentence report or in a prehearing submission by the
Government, Rule 32 requires that the district court give the
parties reasonable notice that it is contemplating such a ruling.
 17

This notice must specifically identify the ground on which the
district court is contemplating an upward departure.” Id. at 138-
39. As the Court explained, “it makes no sense to impute to
Congress an intent that a defendant have the right to comment on
the appropriateness of a sua sponte departure but not the right to
be notified that the court is contemplating such a ruling.” Id. at
135-36. Importantly, the Court made it clear that, “[b]ecause the
question of the timing of the reasonable notice required by Rule
32 is not before us, we express no opinion on that issue. Rather,
we leave it to the lower courts, which, of course, remain free to
adopt appropriate procedures by local rule.” Id. at 139 n.6. It is
also significant that the Burns decision does not involve an
application of the plain error rule. Appellant apparently
recognizes that Burns does not control the disposition of this
case. Nonetheless, appellant invites us to broadly embrace the
logic of Burns in a case in which review is controlled by the
plain error standard. We decline the invitation.
In support of his position, appellant invokes United States
v. Wise, 391 F.3d 1027 (9th Cir. 2004), in which the Ninth
Circuit reversed conditions of supervised release that restricted
the defendant’s contact with children (including her own), and
prohibited her from possessing pornography or sexually
stimulating material. Id. at 1030-31. The court ruled that notice
was a necessary antecedent to those restrictions, and that it is not
enough “first to impose the sentence, and then to invite counsel
to comment, at least where counsel objects as occurred here.”
Id. at 1033 (emphasis added). The instant case is quite different
from Wise, because the appellant here did not raise an objection
with the District Court. If appellant’s counsel had objected, he
could have sought more time to prepare an adequate response.
If that request had been denied, we would have been in a
position to decide whether to embrace the reasoning of Wise.
The Tenth Circuit has applied the principles of Burns in
connection with a matter involving supervised release in United
 18

States v. Bartsma, 198 F.3d 1191, 1994 (10th Cir. 1999). The
defendant there pled guilty to possession of a firearm by a
convicted felon and was required, as a condition of supervised
release, to register as a sex offender because his criminal history,
among other things, reflected prior convictions for rape and
child molestation. Although the defendant did not object to this
condition until the case was heard on appeal, the court
nonetheless held that “the Burns rationale applies when a district
court is considering imposing a sex offender registration
requirement as a special condition of supervised release, and the
condition is not on its face related to the offense charged.” Id.
at 1199-1200. The Tenth Circuit evidently was concerned about
the glaring disjunction between the crime of conviction and the
nature of the conditions of release. Indeed, the court expressly
disclaimed any intent to “create a rule . . . requiring notice prior
to the imposition of every special condition of supervised
release,” restricting its holding to “the unique facts” of the case
it decided. Id. at 1200 n.7. The instant case does not involve a
disjunction between the crime and the conditions of release, so
Bartsma gives little support to appellant’s position.
Finally, the Fifth Circuit has held that, under Rule 32 and
Burns, a defendant who is subject to sex-offender conditions is
entitled to receive notice in advance of sentencing that such
conditions are under consideration. United States v. Coenen,
135 F.3d 938, 943 (5th Cir. 1998). However, defense counsel in
Coenen objected when the sentence was pronounced and thus
preserved the issue for appeal. Id. at 941.
In this case, defense counsel’s failure to disclose any
misgivings about the absence of pre-sentencing notice forecloses
appellant’s claim of plain error. At least two other courts
reviewing similar challenges for plain error have rejected
attempts to apply Rule 32’s notice strictures in this context. See
United States v. Ristine, 335 F.3d 692, 694 (8th Cir. 2003);
United States v. Brown, 235 F.3d 2 (1st Cir. 2000). In our view,
 19

when, as here, a defendant is provided with an opportunity to
articulate his position and then stands by as the court announces
its determination without interposing any objection, we can find
no threat to the integrity, fairness, or public reputation of
judicial proceedings justifying reversal on grounds of plain
error.
Appellant urges us to review the substantive validity of the
terms of supervised release for abuse of discretion. He
acknowledges that, “[g]enerally, where a sentencing court
affords the defendant an opportunity to object to the special
conditions but the defendant remains silent, an appellate court
reviews for plain error under Fed. R. Crim. P. 52(b).”
Appellant’s Br. at 47. Appellant contends, however, that where
“a court imposes a special condition after resolving objections
to the PSR and after permitting defendant to make a statement,
the defendant has no meaningful opportunity to comment.” Id.
at 47-48. Appellant argues that, “[i]n that instance, the attack on
the special condition is not waived by the defendant’s failure to
assert it below, and the abuse of discretion standard applies.” Id.
at 48. We reject this argument. There is neither compelling
legal authority nor good reason for such a rule. The proper
standard of review here is plain error.
As noted above, once appellant was made aware of the
conditions that the District Court intended to impose, his counsel
was in a position to respond or to seek additional time in which
to formulate a response. Standing mute is not an option, not if
a litigant wishes to avoid a plain error standard of review on
appeal. This case does not involve a situation in which the
defendant was barred from speaking, objecting, or seeking more
time after the District Court judge made clear what he had in
mind with respect to conditions of supervised release. On this
record, we agree with the holding in Ristine, rejecting the
appellant’s claim there that “we should use an abuse of
discretion standard, and not plain error, because [the
 20

defendant’s] failure to object stemmed from his lack of notice
that the challenged conditions would be imposed.” 335 F.3d at
694. The absence of an objection in this case means that we
review appellant’s claim for plain error, and we find none.
Normally, in reviewing conditions of supervised release
under the abuse of discretion standard, the appellate court
considers how the trial court measured the conditions imposed
against the statutorily enumerated sentencing goals. The
decision in United States v. Stanfield, 360 F.3d 1346 (D.C. Cir.
2004), describes what is entailed:
The imposition of a term of supervised release after
imprisonment is authorized by 18 U.S.C. § 3583.
Subsection (d) of that provision specifies that the court may
order any condition of supervised release “it considers to be
appropriate,” to the extent the condition is “reasonably
related” to the nature and circumstances of the offense and
the history and characteristics of the defendant, and to the
need to deter crime, to protect the public from further
crimes of the defendant, and to provide needed training,
medical care, or other correctional treatment to the
defendant. The condition also must entail “no greater
deprivation of liberty than is reasonably necessary” to
provide adequate deterrence, to protect the public, and to
meet the defendant’s vocational and medical needs.
Id. at 1352-53 (internal citations omitted). In applying these
standards, “sentencing judges are afforded wide discretion when
imposing terms and conditions of supervised release.” United
States v. Henkel, 358 F.3d 1013, 1014 (8th Cir. 2004).
In this case, appellant challenges the conditions of
supervised release relating to the computer restrictions, the
prohibition against contact with minors, the restrictions on
sexually stimulating materials, and the ban on cameras and
video recording devices. None of these conditions is so plainly
 21

out of sync with the statutory goals enumerated in § 3553(a) as
to warrant reversal under a plain error standard of review.
First, in cases involving prosecution for “sex crimes” –
which is defined to include appellant’s offense – restrictions on
computer and Internet service are explicitly contemplated in the
2004 Sentencing Guidelines, which were in effect when
Sullivan’s sentence was determined. U.S.S.G. § 5D1.3(d)(7)
(2004). While that version of the Guidelines did not govern
appellant’s sentencing, it certainly suggests that computer
restrictions can be “reasonably related” to Sullivan’s offense
conduct. Moreover, no precedent in this circuit provided good
reason to deny the validity of such a restriction. Appellant
points to Stanfield, but that case does not cast doubt on the
sentence at issue here. Reviewing a broad and confusing
Internet restriction, we remanded the case “to allow the district
court to clarify the scope of the restriction.” 360 F.3d at 1354.
But in Stanfield, the defendant had filed a motion with the trial
court to clarify the restriction. Id. at 1351-52. The record in this
case, as we have shown, is quite different.
This circuit has yet to decide whether individuals convicted
of sex crimes may have their Internet usage conditioned on
Probation Office approval, and our sister circuits are divided on
the issue. Compare United States v. Rearden, 349 F.3d 608, 621
(9th Cir. 2003) (upholding Internet restriction), and United
States v. Zinn, 321 F.3d 1084, 1093 (11th Cir. 2003) (same),
with United States v. Crume, 422 F.3d 728, 733 (8th Cir. 2005)
(reversing Internet restriction), and United States v. Sofsky, 287
F.3d 122, 126 (2nd Cir. 2002) (same). This division among the
circuits, coupled with the indication in the Sentencing
Guidelines that some measure of Internet restriction is
appropriate in cases like this one, commands our conclusion that
the trial court committed no plain error.
Sullivan’s other challenges to the validity of his terms of
supervised release are also meritless. He points to no D.C.
 22

Circuit authority that is even arguably inconsistent with any of
the remaining restrictions. We are thus satisfied that none of the
conditions that he challenges warrants reversal.
Nor do we find any merit in Sullivan’s terse contention that
his sentence is flawed because the District Court failed to
“substantiate” the terms of supervised release. As with the other
sentencing issues we have discussed, Sullivan and his counsel
sat in court while the judge pronounced the sentence, but they
never voiced an objection on the ground that the District Court
had failed to substantiate the conditions of release that were
imposed. And appellant has offered no viable basis for
ascribing plain error to the trial court on this issue.
In the end, we can find no plain error with respect to
appellant’s belated objection to his sentencing conditions. There
is no indication here that appellant’s substantial rights have been
affected, see United States v. Baugham, ___ F.3d ___, 2006 WL
1506859, at *14 (D.C. Cir. 2006) (appellant must “‘make a
specific showing of prejudice,’ i.e., show that the error ‘affected
the outcome of the district court proceedings’”) (quoting Olano,
507 U.S. at 735)), because there is no showing here that the
judge would have imposed less onerous conditions even if
appellant had been afforded “advance” notice. Cf. United
States v. McKissic, 428 F.3d 719, 726 (7th Cir. 2005) (“It did
not ‘affect substantial rights’ because [appellant] can seek
modification of the conditions.”).
III. CONCLUSION
For the reasons given above, the judgment of the District
Court is hereby affirmed.
So ordered.
 SENTELLE, Circuit Judge, concurring: I join without
reservation the majority’s disposition of the sentencing issues as
set forth in Part II.B. of the majority opinion. I write separately
as to the merits disposition expressed in Part II.A., not because
I consider the majority’s opinion to be in error, but to express
my concern about what appears to me to be a confused area of
constitutional law. I wholly agree with appellant’s argument
that

Title 18 U.S.C. § 2252A(a)(5)(B) is unconstitutional as
applied to Sullivan because the statute exceeds Congress’
authority pursuant to the Commerce Clause. In [United
States v. Lopez, 514 U.S. 549 (1995)], the Supreme Court
identified three areas that Congress could regulate pursuant
to the Commerce Clause: 1) the channels of interstate
commerce; 2) the instrumentalities of interstate commerce;
and 3) conduct that substantially affects interstate
commerce. 514 U.S. at 558-59. As case authority shows,
the conduct regulated here – possession – is a purely
intrastate activity, and therefore if it may be regulated at all,
it can be regulated only pursuant to the third Lopez category
. . . . Congress cannot regulate Sullivan’s conduct pursuant
to the third Lopez category because the conduct did not
substantially affect interstate commerce.

Appellant’s Br. at 11-12. I would, therefore, vote to reverse
appellant’s conviction were it not for the intervening Supreme
Court decision in Gonzales v. Raich, 125 S. Ct. 2195 (2005).
With some reluctance, I join the majority’s decision that the
latest Supreme Court opinion compels affirmance of this
conviction. But my reluctance arises from the apparent
inconsistency of Raich with Lopez.
 2

As appellant’s argument properly points out, Lopez limited
the reach of the Commerce Clause to three categories. The first
two are plainly not implicated by appellant’s conduct.
Therefore, for the federal government to constitutionally
regulate that conduct, it must fall within the category of
“activities having a substantial relationship to interstate
commerce . . . i.e., those activities that substantially affect
interstate commerce . . . .” Lopez, 514 U.S. at 558-59 (citations
omitted). I am at a loss as to how purely intrastate possession of
a product that has previously traveled interstate substantially
affects interstate commerce. In analyzing the constitutionality
of regulation under category three, the Supreme Court in Lopez
undertook a further analysis which, in the absence of the Raich
opinion, would govern our adjudication of the question before
us. See id., 514 U.S. at 559-65. That analysis generally covers
the following three elements:

– the regulation controls a commercial activity, or an
activity necessary to the regulation of some commercial
activity;

– the statute includes a jurisdictional nexus requirement to
ensure that each regulated instance of the activity affects
interstate commerce; and

– the rationale offered to support the constitutionality of the
statute (i.e., statutory findings, legislative history,
arguments of counsel, or a reviewing court’s own
attribution of purposes to the statute being challenged) has
a logical stopping point, so that the rationale is not so broad
as to regulate on a similar basis all human endeavors,
especially those traditionally regulated by the states.1

1
This specific formulation of the inquiries necessary under
category (3) is drawn from United States v. Wall, 92 F.3d 1444, 1455-
 3

It is not at all plain to me that the present conduct falls within
any of the three analytical elements. First, it is not clear that
regulation of purely intrastate possession of a product is
necessary to the regulation of the commercial activity which
Congress seeks to regulate. Second, there is no relevant
jurisdictional section. Third, if the purely intrastate and
noncommercial possession of a product is regulable simply
because some of the product may have previously passed in
interstate commerce, then I see no stopping point.

In the end, however, I cannot fault the majority’s
application of the later decision in Raich. I can, however, hope
that the High Court in some further decision gives us some
better method of reconciling its holdings on the extent of
congressional power under the Interstate Commerce Clause.

56 (6th Cir. 1996) (Boggs, J., dissenting in part). However, each of
the points summarized in Judge Boggs’s formulation is taken directly
from Lopez, 514 U.S. at 559-65. See also Nat’l Ass’n of Home
Builders v. Babbitt, 130 F.3d 1041, 1064 (D.C. Cir. 1997) (Sentelle,
J., dissenting).