United States v. Love

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 21, 2009 Decided January 22, 2010

No. 07-3140

UNITED STATES OF AMERICA,
APPELLEE

v.

ALLEN G. LOVE,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 07cr00027-01)

Beverly G. Dyer, Assistant Federal Public Defender,
argued the cause for appellant. With her on the briefs was A.
J. Kramer, Federal Public Defender. Tony W. Miles, Assistant
Federal Public Defender, entered an appearance.

Courtney D. Spivey, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Jeffrey A.
Taylor, U.S. Attorney at the time the brief was filed, and Roy
W. McLeese III, Assistant U.S. Attorney.

Before: GINSBURG and GRIFFITH, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.
 2

Opinion for the Court filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge: Allen G. Love pled guilty to
transporting or shipping material involving child pornography
in violation of 18 U.S.C. §§ 2252A(a)(1) and 2256 (2006). On
appeal, he challenges the district court’s application of a
sentencing enhancement, as well as some of the conditions of
his supervised release. We affirm Love’s sentence, save one
condition of supervised release.

I.

On October 19, 2006, two men using the screen names
“James” and “Al” met in an incest chat room on the Internet.
James mentioned he had a ten-year-old daughter, and Al
asked to see a picture of her. James soon replied with a
photograph of a young girl. “Al” was the defendant, Allen
Love. “James” was undercover Metropolitan Police Detective
Timothy Palchak, an investigator of Internet crimes against
children.1

Love and Palchak chatted online many times over the
next several months. Love wrote that he wanted to have sex
with Palchak’s daughter and asked for nude pictures of her.
Love also suggested that Palchak bring his daughter to
Chicago, where Love could have sex with her at a local hotel.
In addition, Love sent Palchak four photographs and two
video clips of prepubescent children engaging in sexually
explicit conduct, including one clip in which a child is
forcibly raped.

1
Our recitation of the facts draws from the proffer signed by Love
in support of his guilty plea and from the district court’s findings
with respect to two disputed paragraphs of the Presentence
Investigation Report.
 3

During an online chat on October 26, 2006, Palchak
asked Love for pictures he could show his daughter. Love
sent him a photograph of an adult male’s genitals. On
December 7, 2006, the men chatted again about Love’s
having sex with Palchak’s daughter. Palchak said that he told
his daughter Love wanted to have sex with her and that she
was excited to meet him. Palchak said he was going to show
her the child pornography Love had sent and asked for more.
Love responded, “ok,” and repeated that he wished Palchak
and his daughter were in Chicago so that Love could have sex
with her. Presentence Investigation Report (PSR) ¶ 21. In a
chat on January 23, 2007, Palchak asked Love if he had any
more pictures he could show his daughter or “just the same
stuff” he had sent previously. Love replied, “[J]ust the same
ones.” Id. ¶ 22.

On January 25, 2007, agents from the Federal Bureau of
Investigation executed a search warrant at Love’s home. A
search of his computers discovered over 600 images of child
pornography. Love confessed to the FBI that he regularly
traded child pornography with people he met online. Love
was subsequently indicted for one count of transporting or
shipping material involving child pornography and one count
of possessing such material. Love pled guilty on September 4,
2007, to the distribution count in exchange for the
government’s dismissing the possession count and
recommending a sentence at the low end of the guideline
range.

Under section 2G2.2 of the Sentencing Guidelines, the
base offense level for Love’s conduct is 22. U.S. SENTENCING
GUIDELINES MANUAL § 2G2.2(a) (2007) [hereinafter
U.S.S.G.]. As part of the plea agreement, Love stipulated to
several enhancements to his offense level: a two-level
 4

increase because he possessed or transmitted illicit material
involving a prepubescent minor, id. § 2G2.2(b)(2); a two-
level increase because he distributed child pornography, id.
§ 2G2.2(b)(3)(F); a four-level increase because the material
portrayed violent, sadistic, or masochistic conduct, id.
§ 2G2.2(b)(4); a two-level increase because he used a
computer to facilitate his offense, id. § 2G2.2(b)(6); and a
five-level increase because he possessed 600 or more illicit
images, id. § 2G2.2(b)(7)(D). In return, the government
agreed the offense level should be decreased by three levels
under section 3E1.1 of the Guidelines for Love’s acceptance
of responsibility. According to the stipulations, Love’s total
offense level was 34.

Following Love’s guilty plea, the United States Probation
Office issued a Presentence Investigation Report (PSR) that
agreed with those stipulations, with one exception. In lieu of
section 2G2.2(b)(3)(F)’s two-level enhancement for any
distribution of child pornography, the Probation Office
applied section 2G2.2(b)(3)(E)’s seven-level enhancement for
“[d]istribution [of child pornography] to a minor that was
intended to persuade, induce, entice, or facilitate the travel of,
the minor to engage in prohibited sexual conduct.” PSR ¶ 31.
This difference resulted in a total offense level of 39, see id.
¶ 41, five levels higher than that to which the parties had
agreed.

A defendant’s sentence may not exceed the statutory
maximum regardless of the guideline range that results from
his criminal history category and total offense level. See
U.S.S.G. § 5G1.1(a) (“Where the statutorily authorized
maximum sentence is less than the minimum of the applicable
guideline range, the statutorily authorized maximum sentence
shall be the guideline sentence.”). Love’s fairly clean criminal
 5

record placed him in Criminal History Category I. See PSR
¶¶ 42–49. His total offense level was either 34 or 39,
depending on whether section 2G2.2(b)(3)(E) applied. Given
Love’s criminal history category, a total offense level of 39
would translate to a sentencing range of 262 to 327 months’
imprisonment, and a total offense level of 34 would mean a
sentencing range of 151 to 188 months’ imprisonment. See
U.S.S.G. pt. 5A. But the statutory maximum for Love’s
offense is 240 months’ imprisonment. See 18 U.S.C.
§ 2252A(b)(1).

At Love’s sentencing hearing, the district court applied
the seven-level enhancement recommended by the Probation
Office, Tr. 24–25, but imposed a sentence of 188 months’
imprisonment, followed by supervised release for life.
Judgment in a Criminal Case at 2–3 [hereinafter Judgment].
Love’s term of supervised release is subject to several
standard and special conditions of supervision. Love timely
appealed, and we have jurisdiction under 18 U.S.C. § 3742.2

2
18 U.S.C. § 3742(a)(2) authorizes appeals of sentences “imposed
as a result of an incorrect application of the sentencing guidelines.”
In Love’s case, the district court imposed a sentence (188 months)
below the guideline sentence that results from applying the seven-
level enhancement (240 months). One passage in In re Sealed Case,
449 F.3d 118 (D.C. Cir. 2006), arguably suggests we lack
jurisdiction under § 3742(a)(2) when the district court grants such a
downward departure. See id. at 121–22 & n.1 (“Subsection (2) does
not allow jurisdiction here because Appellant’s sentence was not
the ‘result of an incorrect application of the sentencing guidelines.’
Rather, his sentence was the result of the District Court’s decision
to grant a departure from the Sentencing Guidelines . . . . The
[departure] did not involve an application of the Guidelines. It
involved a decision not to apply the Guidelines at all.”). In re
Sealed Case, however, held only that § 3742(a)(2) is inapplicable
 6

Love argues the district court erred in three ways:
(1) applying the seven-level enhancement from section
2G2.2(b)(3)(E); (2) entering a written judgment that
conflicted with the orally pronounced sentence; and
(3) imposing unreasonable conditions of supervised release.

II.

We review sentences for abuse of discretion. See Gall v.
United States, 552 U.S. 38, 46 (2007). In applying this
standard, the court “ensure[s] that the district court committed
no significant procedural error.” Id. at 51. Procedural errors
include “failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory,
failing to consider the § 3553(a) factors, selecting a sentence
based on clearly erroneous facts, or failing to adequately
explain the chosen sentence—including an explanation for
any deviation from the Guidelines range.” Id.

Love argues the district court committed procedural error
by applying section 2G2.2(b)(3)(E)’s seven-level
enhancement. He alleges error with respect to each element of
the enhancement: (1) distribution of child pornography; (2) to

when the defendant challenges the degree of a section 5K1.1
departure from the guideline range. See id. at 121–22 (citing United
States v. Hazel, 928 F.2d 420, 423 (D.C. Cir. 1991)). Love’s
argument is different. Because Love challenges the district court’s
initial calculation of the guideline range, rather than the degree of
its subsequent downward departure, we have jurisdiction under
§ 3742(a)(2). A sentence that results from a miscalculation of the
guideline range is “imposed as a result of an incorrect application
of the sentencing guidelines,” 18 U.S.C. § 3742(a)(2), regardless of
whether the district court also departed from the guideline range.
 7

a minor; and (3) intended to persuade, induce, entice, or
facilitate the travel of, the minor to engage in prohibited
sexual conduct. We address each of his arguments in turn. We
find none persuasive.

A.

Love argues the district court erroneously based the
enhancement on his transmittal of one image of an adult
male’s genitals, rather than his admitted distribution of
pictures and videos of child pornography. Appellant’s Br. at
14; Reply Br. at 6–10. To address this argument, we must
examine the entire sentencing transcript to understand why
the district court applied the enhancement. See United States
v. Brockenborrugh, 575 F.3d 726, 740–41 (D.C. Cir. 2009)
(discussing the need to avoid “reading the district court’s
explanation [of a sentencing adjustment] in a parsed manner
that overlooks its meaning in context”). If Love’s
understanding of the district court’s decision were correct, we
would reverse. The enhancement applies only to distribution
of “material involving the sexual exploitation of a minor.”
U.S.S.G. § 2G2.2 cmt.1. A photograph of an adult’s genitals
does not qualify. A careful reading of the entire sentencing
transcript, however, shows that the district court relied on the
exchange of adult pornography only for its value as
circumstantial evidence that Love distributed child
pornography to a minor with the requisite intent. We therefore
find no error.

In his pre-hearing objections to the PSR, Love raised two
objections to the seven-level enhancement. First, Love
distributed child pornography to Palchak, not “to a minor.”
Second, Love did not intend to facilitate a sexual encounter
with Palchak’s daughter. At the sentencing hearing, the court
 8

questioned defense counsel about these objections. In doing
so, the court referred to all the material Love had sent
Palchak:

All of that, at least circumstantially, shows that . . . the
defendant believed that it was being sent, albeit at the
request of the officer, to the officer for the purpose of it
being shown to the child . . . . I think it is reasonable to
infer from all of that, that he sent it with the anticipation
it would be shown to the child, so that it would factor into
the child ultimately having sex with him.

Tr. 24–25 (emphases added).

Love argues the court’s use of the word “it” shows the
court was speaking of a single photograph. Appellant’s Br. at
14; Reply Br. at 7–8. Though plausible, that is not the only
permissible reading of the court’s conclusion. “It” could just
as easily refer to the child pornography Love sent or, more
likely, all the pornography he sent, taken together.

Read in isolation the court’s statement is at most
ambiguous. Read in context, it shows the district court applied
the enhancement because of Love’s distribution of material
that included child pornography. In response to defense
counsel’s argument that Love would not have distributed
child pornography to a minor had Palchak not induced him,
the court stated even more plainly its conclusion that Love
distributed child pornography to Palchak’s daughter with the
intent to facilitate a sexual encounter with her:

[T]he dissemination of material, not only showing young
children in nude situations, but very suggestive situations,
and also showing children actually being raped—I think
it would be very difficult to show that when you send
 9

photographs to someone with the intent of having those
photographs shown to a child and you have already
expressed your intent or desire to have sex with that
child, I think it is very difficult to show that there wasn’t
a predisposition to engage in the act.

Tr. 18.

Nevertheless, Love contends the court based the
enhancement on the chat in which he sent Palchak adult—but
not child—pornography because the court repeatedly
mentioned that chat. Appellant’s Br. at 14; Reply Br. at 6–7.
But Love’s reading is too crabbed and fails to take into
account that these comments were made in the context of
Love’s having already conceded that he distributed child
pornography. The court easily found that Love distributed
adult pornography to Palchak’s daughter to facilitate
prohibited sexual conduct. It then reasonably inferred that
when Love sent Palchak child pornography, he did so for the
same reason and expected Palchak’s daughter to see it.
Because the district court based its application of the
enhancement on Love’s distribution of child pornography, it
committed no error.

B.

Love next argues his distribution of child pornography
was not “to a minor.” Appellant’s Br. at 14–15; Reply Br. at
10–12. He gives three reasons: (1) the evidence does not
support a finding that Palchak’s fictitious daughter was a
“minor” as defined in the commentary to the guideline; (2) the
evidence was insufficient to support a finding that Love had
the requisite intent or knowledge that Palchak would show his
daughter the child pornography; and (3) the enhancement is
limited to “direct” distribution of child pornography to a
 10

minor and therefore does not apply here. Because its findings
were not clearly erroneous and its interpretation of the
guideline was correct, the district court did not abuse its
discretion. See United States v. Sammoury, 74 F.3d 1341,
1345 (D.C. Cir. 1996).

The commentary to section 2G2.2 defines “minor” to
include “an individual, whether fictitious or not, who a law
enforcement officer represented to a participant (i) had not
attained the age of 18 years, and (ii) could be provided for the
purposes of engaging in sexually explicit conduct.” U.S.S.G.
§ 2G2.2 cmt.1. Love argues there was insufficient evidence to
find that Palchak “represented” that his young daughter
“could be provided for the purposes of engaging in sexually
explicit conduct.” The record contains ample evidence to
support that finding. Palchak wrote that he told his daughter
Love wanted to have sex with her and she was excited to meet
him, PSR ¶ 21, from which one could reasonably infer that he
was offering his daughter for sex. Moreover, Palchak made
that statement during several months of chats in which Love
made repeated entreaties to have sex with his daughter.

Love also argues the enhancement applies only if the
government shows he intended for Palchak to display the
child pornography to his daughter. But Love provides no
authority that the government must prove specific intent.
Knowing the child pornography he distributed would reach a
minor is sufficient, see U.S.S.G. § 2G2.2 cmt.1 (defining
“distribution to a minor” as “the knowing distribution to an
individual who is a minor at the time of the offense”
(emphasis added)), and the district court did not clearly err in
concluding Love acted with such knowledge. During their
chats, Palchak repeatedly asked for photographs or movies
that he could show his daughter. On January 23, 2007,
 11

Palchak again asked if there were pictures he could show the
young girl, and Love responded: “[J]ust the same ones” he
had already sent. PSR ¶ 22. By that time, Love had given
Palchak numerous photographs and movie clips containing
child pornography.

Finally, nothing in the Guidelines supports Love’s
argument that section 2G2.2(b)(3)(E) applies only to
distribution of child pornography “directly” to a minor. Love
suggests that, if the Sentencing Commission intended the
enhancement to apply to distribution through an intermediary,
it would have made the guideline explicit on that point.
Appellant’s Br. at 15. But the Commission could just as easily
have limited the guideline in the manner Love suggests by
inserting the word “directly” before “to a minor.” We will not,
without good reason, read into the guideline a requirement not
included in its text. Cf. Jama v. Immigration & Customs
Enforcement, 543 U.S. 335, 341 (2005) (“We do not lightly
assume that Congress has omitted from its adopted text
requirements that it nonetheless intends to apply . . . .”).
Rather, we understand section 2G2.2(b)(3)(E) to apply when,
acting with the requisite purpose, the defendant engages in an
act related to the transfer of child pornography with the
knowledge it will be received or viewed by a minor.

C.

Love also asserts, as he did below, that the record does
not support a finding that his distribution of child
pornography was “intended to persuade, induce, entice,
coerce, or facilitate the travel of” Palchak’s daughter to
engage in prohibited sexual conduct. We review the district
court’s factual finding about Love’s intent for clear error. See
United States v. Leonzo, 50 F.3d 1086, 1088 (D.C. Cir. 1995).
 12

The district court did not clearly err in concluding Love
intended his distribution of child pornography to “factor into
the child ultimately having sex with him.” Tr. 25. During their
first conversation, Love asked Palchak for a picture of his
daughter. After Palchak sent a photograph of a young girl,
Love said he wanted to have sex with her and asked Palchak
to bring her to Chicago for that purpose. When Palchak told
Love he was going to show his daughter the videos he had
sent, Love replied, “ok,” and that he wished Palchak and his
daughter were in Chicago so Love could have sex with her.
PSR ¶ 21. The district court inferred from these exchanges
that Love’s purpose in conversing with Palchak and sending
him child pornography was to facilitate a sexual encounter
with Palchak’s ten-year-old daughter. This was not clearly
erroneous.

We therefore affirm the district court’s application of
section 2G2.2(b)(3)(E)’s seven-level enhancement.

III.

Next, Love challenges seven conditions of his supervised
release, some on the ground that they differ from the sentence
announced from the bench and all on the ground that they are
unreasonable.

A.

Because “[t]he pronouncement of the sentence constitutes
the judgment of the court,” Kennedy v. Reid, 249 F.2d 492,
495 (D.C. Cir. 1957), “the written judgment form is a nullity
to the extent it conflicts with the previously pronounced
sentence,” United States v. Booker, 436 F.3d 238, 245 (D.C.
Cir. 2006). This rule rests on two foundational principles:
(1) the defendant has a right to be present at sentencing,
 13

Borum v. United States, 409 F.2d 433, 440 n.28 (D.C. Cir.
1967), and (2) “when a final judgment has once been entered,
no second or different judgment may be rendered . . . until the
first shall be vacated and set aside or reversed on appeal or
error.” Booker, 436 F.3d at 245 (quoting 49 C.J.S.
JUDGMENTS § 76, at 150–51 (2005)). When the two are in
conflict, we will order the judgment corrected to conform to
the sentence imposed from the bench, see, e.g., United States
v. Lewis, 626 F.2d 940, 953 (D.C. Cir. 1980), but we will not
remand when the judgment is consistent with the sentence,
see Borum, 409 F.2d at 440.

This circuit has not squarely addressed whether the
district court may use the written judgment to clarify an
ambiguous oral pronouncement of the sentence. Today we
join the vast majority of our sister circuits in holding that it
may. See United States v. Penson, 526 F.3d 331, 334–35 (6th
Cir. 2008); United States v. Napier, 463 F.3d 1040, 1043–44
(9th Cir. 2006); United States v. Vega-Ortiz, 425 F.3d 20, 23
(1st Cir. 2005); United States v. Osborne, 345 F.3d 281, 283
n.1 (4th Cir. 2003); Ruggiano v. Reish, 307 F.3d 121, 133–35
(3d Cir. 2002); United States v. Thomas, 299 F.3d 150, 152–
53 (2d Cir. 2002); United States v. Warden, 291 F.3d 363, 365
(5th Cir. 2002); United States v. Bull, 214 F.3d 1275, 1279
(11th Cir. 2000); United States v. Bonanno, 146 F.3d 502,
511–12 (7th Cir. 1998); United States v. Villano, 816 F.2d
1448, 1451 (10th Cir. 1987) (en banc) (“This is the purpose of
the written order: to help clarify an ambiguous oral sentence
by providing evidence of what was said from the bench.”).
But cf. Holloway v. United States, 960 F.2d 1348, 1358 (8th
Cir. 1992) (“[A]mbiguities in the sentence pronouncement are
to be construed in favor of the defendant.”). Therefore, we
will not remand for the district court to correct a written
 14

judgment that clarifies—rather than contradicts—the oral
pronouncement of the sentence.

Love contends that the descriptions of several special
conditions of supervised release in the written judgment
impermissibly conflict with the conditions imposed orally at
sentencing. Most of the alleged discrepancies simply clarify
or define terms included in the oral pronouncement. Not every
difference Love finds between the sentence and judgment
warrants discussion, but some do, and with respect to one
condition he is correct.

First, Love argues that the judgment’s description of the
condition regarding mental health treatment impermissibly
differs from the sentence. At the sentencing hearing, the
district court required that, while in prison, Love receive “any
mental-health treatment that needs to be provided.” Tr. 63.
The court further required that when Love is “on supervised
release, if it’s felt further treatment is needed, either in the
sex-offender area or in the mental-health area, [Love] also
participate in that.” Tr. 64. The written judgment provides:

The defendant shall participate in a mental health
program specifically related to sexual offender
therapy, as approved by the Probation Office. The
defendant shall abide by all program rules,
requirements and conditions, which may include, but
[are] not limited to, submission to periodic and
random polygraph testing, plethysmograph
examinations, and ABEL Assessment, as directed by
the Probation Office.

Judgment at 4.
 15

Love maintains the oral pronouncement of the sentence
made treatment conditional, rather than mandatory, by
requiring mental health or sex offender treatment only “if it’s
felt further treatment is needed.” Tr. 64. Love also challenges
the reasonableness of the oral pronouncement as
impermissibly vague because it fails to identify who will
decide if treatment is necessary and when such a
determination will be made. Appellant’s Br. at 20–21; Reply
Br. at 15.

Oral pronouncements of supervised release conditions are
often worded imprecisely. Cf. United States v. Daugherty, 269
U.S. 360, 363 (1926) (“Sentences in criminal cases should
reveal with fair certainty the intent of the court . . . . [But]
elimination of every possible doubt cannot be demanded.”).
With that in mind, we do not think the district court intended
to make Love’s mental health treatment conditional on a
subsequent determination of its necessity. Once again, we
look to the context of the district court’s statements. See
Brockenborrugh, 575 F.3d at 740–41. The district court had
before it the Sentencing Guidelines, which recommend
mandatory mental health treatment, see U.S.S.G.
§ 5D1.3(d)(7), and the government’s sentencing
memorandum, which recommended the same. Love lodged no
objection to the court’s reliance upon either. Tr. 47, 66. As
such, we think the court intended the condition to be
mandatory, regardless of the phrasing used at sentencing. The
written judgment is consistent with that understanding. Our
conclusion moots Love’s concerns about the condition’s
vagueness. Because the district court made treatment
mandatory, there is no need to ask who decides whether
treatment is necessary and when that decision is to be made.
 16

Second, Love contends the written judgment is more
restrictive than the oral sentence because it limits his ability,
absent permission, to reside or volunteer with minors. We find
no error because both restrictions are encompassed in a third
one: The oral pronouncement barring all contact with
children. Tr. 64. Moreover, to the extent the oral
pronouncement and written judgment differ, the judgment is
more lenient because it permits Love to reside or volunteer
with children as long as he receives permission. The oral
pronouncement could be read to prohibit even that.3

Finally, Love argues the district court impermissibly
expanded a condition restricting possession of pornography
by adding in the written judgment that he “shall not patronize
any place where pornography or erotica can be accessed,
obtained, or viewed, including establishments where sexual
entertainment is available.” Judgment at 4. The government
suggests this prohibition may be “reasonably viewed as a
clarification” of the restriction on Love’s possession of
pornographic materials. Appellee’s Br. at 39 n.17. The oral
pronouncement, however, unambiguously limits the
restriction to possession of pornography. The written
judgment is not so limited. It prohibits visiting certain
establishments—including, presumably, many bookstores and
newsstands—regardless of whether Love possesses
pornography while he is there. This cannot be understood as a
mere clarification of the pornography restriction pronounced
orally. We therefore remand to the district court for the sole
purpose of deleting from the written judgment the provision
that “[h]e shall not patronize any place where pornography or
erotica can be accessed, obtained, or viewed, including

3
The government does not challenge the judgment as insufficiently
restrictive.
 17

establishments where sexual entertainment is available.” See,
e.g., United States v. Braxtonbrown-Smith, 278 F.3d 1348,
1356 (D.C. Cir. 2002) (remanding for the district court to
strike from the judgment a special condition of supervised
release).

B.

Love also challenges seven of the special conditions of
his supervised release as unreasonable or inconsistent with the
Guidelines. At sentencing, he specifically objected only to the
conditions related to Internet usage, associations with known
sex offenders, and contact with children through employment.
Tr. 47–52. We review the imposition of these conditions for
abuse of discretion. See United States v. Sullivan, 451 F.3d
884, 895 (D.C. Cir. 2006). The statutory factors guiding the
district court’s exercise of its discretion are outlined in United
States v. Stanfield, 360 F.3d 1346 (D.C. Cir. 2004):

[T]he 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. 18 U.S.C. § 3583(d)(1). 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. § 3583(d)(2).

360 F.3d at 1352–53. Love’s general objection to the other
conditions, see Tr. 66 (objecting “to any condition of
 18

supervised release beyond that which I indicated in my
proffer”), was insufficient to preserve his arguments for
appeal. See United States v. Breedlove, 204 F.3d 267, 270
(D.C. Cir. 2000) (“An objection is not properly raised if it is
couched in terms too general to have alerted the trial court to
the substance of the petitioner’s point.”). We therefore review
those conditions for plain error, see FED. R. CRIM. P. 52(b),
and find none.

1. Restriction on Internet Access

Love challenges a condition that will require him to
obtain prior written approval from the Probation Office for
Internet access. The condition states, “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.” Judgment at 4. The condition is overbroad,
Love argues, in light of the near ubiquity of the Internet in
everyday life. He suggests a more tailored condition that
would ban only electronic communication involving
prohibited sexual material, or, alternatively, would require
that his Internet use be monitored remotely by the Probation
Office. Appellant’s Br. at 22–25.

The Internet prohibition will, no doubt, substantially
affect Love’s day-to-day activities. It will deprive him of the
easiest way to pay his bills, check the weather, stay on top of
world events, and keep in touch with friends. It will also
prevent him from using the Internet to trade child
pornography. These are all factors district courts should
weigh in considering restrictions on Internet access as
conditions of supervised release. Given the alternatives of
remote monitoring of an individual’s Internet usage and
 19

unannounced examinations of his computers, an Internet ban
subject to Probation Office approval may in some cases
impose a “greater deprivation of liberty than is reasonably
necessary” to deter illegal conduct and protect the public. 18
U.S.C. § 3583(d)(2); see, e.g., United States v. Perazza-
Mercado, 553 F.3d 65, 69–74 (1st Cir. 2009); United States v.
Crume, 422 F.3d 728, 733 (8th Cir. 2005); United States v.
Holm, 326 F.3d 872, 877–79 (7th Cir. 2003); United States v.
Sofsky, 287 F.3d 122, 126–27 (2d Cir. 2002); United States v.
White, 244 F.3d 1199, 1205–07 (10th Cir. 2001). But not
here. In Love’s case, this restriction is eminently reasonable.

On this record, the condition is properly tailored to the
circumstances of the offense and Love’s background, and it is
reasonably necessary to deter future misconduct and to protect
children. Consensus is emerging among our sister circuits that
Internet bans, while perhaps unreasonably broad for
defendants who possess or distribute child pornography, may
be appropriate for those who use the Internet to “initiate or
facilitate the victimization of children.” Holm, 326 F.3d at
878; see United States v. Thielemann, 575 F.3d 265, 278 (3d
Cir. 2009); United States v. Johnson, 446 F.3d 272, 283 (2d
Cir. 2006); United States v. Boston, 494 F.3d 660, 668 (8th
Cir. 2007); United States v. Paul, 274 F.3d 155, 169 (5th Cir.
2001). The distinction is grounded in the simple proposition
that when a defendant has used the Internet to solicit sex with
minors, “the hazard presented by recidivism” is greater than
when the defendant has traded child pornography. Johnson,
446 F.3d at 283.

The district court found that Love not only distributed
child pornography but that he also solicited sex with
Palchak’s fictitious daughter. The court concluded that Love
would have had sex with her if given the opportunity, Tr. 18,
 20

59, 60, and he would likely repeat this conduct upon release if
he thought he would not be caught, Tr. 62. In sum, the hazard
presented by Love’s potential recidivism is substantial, and
his inclination towards reoffending is great. Making Love’s
Internet use subject to Probation Office approval is therefore
appropriately tailored to the harm that may result should he
resume his previous course of conduct after release from
prison.

Moreover, the continuing development of the Internet
makes it reasonable for the district court to give the Probation
Office broad authority to determine the scope of Love’s
permissible Internet use. Love’s term of supervised release
will not begin any time soon. Sentencing courts can predict
neither the new ways in which child pornography will then be
available nor the new technologies the government may use to
police its availability. An Internet restriction that today
imposes “no greater deprivation of liberty than is reasonably
necessary” to deter illegal conduct may, by the time Love is
released, be either wholly inadequate or entirely too
burdensome. A broad Internet prohibition, which the
Probation Office will tailor to the technology in use at the
time of Love’s release, is an appropriate way to deal with that
uncertainty. We assume the Probation Office will reasonably
exercise its discretion by permitting Love to use the Internet
when, and to the extent, the prohibition no longer serves the
purposes of his supervised release. The Internet restriction
therefore imposes no greater deprivation of liberty than is
reasonably necessary to serve the purposes of supervised
release.
 21

2. Restriction on Contact with Known Sex Offenders

The district court required that Love “not associate with
known sex offenders or groups of individuals engaged in such
activity.” Tr. 64. Love argues compliance with this condition
would be unduly burdensome because it could preclude his
residence with other sex offenders in shared housing and
prevent his rehabilitation through group therapy with other
sex offenders. He also argues the condition is overbroad
because distribution of child pornography is not ordinarily
committed in groups.

In addition to the contact-with-sex-offenders condition,
Love’s supervised release is subject to the standard condition
prohibiting him from associating “with any persons engaged
in criminal activity” or “with any person convicted of a
felony, unless granted permission to do so by the probation
officer.” Judgment at 3. The Guidelines recommend this
condition be attached to any term of supervised release, see
U.S.S.G. § 5D1.3(c)(9), and Love does not challenge its
imposition here. The special condition prohibiting contact
with known sex offenders is merely one particular application
of the standard condition. The only difference between the
two is that the sex-offender condition contains no explicit
exception for contact with the permission of the Probation
Office. We do not agree with Love, however, that the absence
of such an exception will require the Probation Office to
enforce the condition at the expense of other post-
incarceration objectives like supervision and treatment. There
is no conflict in principle between these conditions. Should
the Probation Office find the conditions to be inconsistent in
practice, it may reasonably reconcile them through non-
enforcement of the contact-with-sex-offenders condition.
 22

Moreover, we find entirely meritless Love’s contention
that the condition is overbroad because distribution of child
pornography is not usually a group offense. Distribution is
inherently interpersonal. Preventing Love from interacting
with others who share his predilections is reasonably related
to the specific-deterrence objectives of supervised release.

3. Restriction on Employment

Love also challenges as inconsistent with section 5F1.5
of the Sentencing Guidelines the requirement that he obtain
approval for employment involving contact with minors.4
That condition is impermissible, Love argues, because there
was no “reasonably direct relationship” between his
“occupation, business, or profession and the conduct relevant
to the offense of conviction.” U.S.S.G. § 5F1.5(a)(1).

Because, as we discuss below, we uphold a broader
condition that prohibits Love from having any contact with
minors, we need not decide whether the lesser included
condition banning employment involving contact with minors
is inconsistent with the Guidelines. Nothing we might say
about this narrower condition would relieve Love of his
obligation to avoid such employment.

4. Remaining Restrictions

We review for plain error the conditions relating to
Love’s possession of pornographic materials, possession of

4
As reflected in the written judgment, the condition provides: “The
defendant shall not be employed in any capacity or participate in
any volunteer activity that involves contact with minors under the
age of 18, except under circumstances approved in advance and in
writing by the Court.” Judgment at 4.
 23

camera or video recording equipment, contact with children,
and post-incarceration mental health treatment.

The first three of these conditions are nearly identical to
those upheld under plain error review in United States v.
Sullivan, 451 F.3d 884 (D.C. Cir. 2006).5 We found
Sullivan’s challenges “meritless” because the conditions were
not “even arguably inconsistent” with any D.C. Circuit
authority. 451 F.3d at 896. Love cites no case decided in the
three years since Sullivan that makes any error by the district
court more plain than it would have been then. Although Love
will be on supervised release from the time he leaves prison
until the time he dies, whereas Sullivan served only a two-
year term of supervised release, compare Sullivan, 451 F.3d at
887, with Judgment at 2–3, we do not think this difference

5
The conditions read:
The defendant shall have no direct, or indirect, contact with
children under the age of 18, 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. . . .
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 are relevant to the offender’s deviant
behavior pattern. . . .
The defendant shall not own or possess any type of camera or
video recording device without the approval of the Probation
Office.
Judgment at 4.
 24

makes any error committed by the district court an obvious
one.

The only remaining condition at issue is the requirement
that Love obtain mental health treatment. As discussed above,
our holding that the condition is mandatory resolves Love’s
substantive concerns.

IV.

We remand the case to the district court with instructions
to conform the condition in the written judgment relating to
possession of sexual materials to the corresponding condition
imposed orally at the sentencing hearing. Otherwise, we
affirm.

So ordered.