United States v. Medina , 779 F.3d 55 ( 2015 )

United States Court of Appeals
For the First Circuit
No. 13-1936
UNITED STATES OF AMERICA,
Appellee,
v.
MOISÉS MEDINA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Torruella, Thompson, and Barron,
Circuit Judges.
Edward J. O'Brien, with whom O'Donnell, Trossello & O'Brien,
LLP was on brief, for appellant.
Marshal D. Morgan, Assistant United States Attorney, with whom
Juan Carlos Reyes-Ramos, Assistant United States Attorney, Rosa
Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez-
Sosa, Assistant United States Attorney, Chief, Appellate Division,
were on brief, for appellee.
March 4, 2015
BARRON, Circuit Judge. Moisés Medina failed to register
as a sex offender when he moved to Puerto Rico in May of 2012, even
though he had been convicted of a state sex offense four years
earlier. As a result, Medina was arrested for violating the Sex
Offender Notification and Registration Act, also known as SORNA, 18
U.S.C. § 2250. He then pled guilty and was sentenced to a thirty-
month prison term, to be followed by a twenty-year term of
supervised release.
The supervised release portion of the sentence included
various conditions that Medina must follow or face returning to
prison. Medina now challenges two of those conditions as well the
length of the supervised release term. One of the two conditions
restricts Medina from accessing or possessing a wide range of
sexually stimulating material. The other requires Medina to submit
to penile plethysmograph testing -- a particularly intrusive
procedure -- if the sex offender treatment program in which he must
participate as a condition of his supervised release chooses to use
such testing.
We hold that the District Court erred in setting the
length of the supervised release term. We further hold that the
District Court inadequately justified the imposition of the
supervised release conditions that Medina challenges. We therefore
vacate Medina's supervised release sentence term and the conditions
challenged on this appeal, and remand for re-sentencing.
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I.
Medina has a long criminal history, including robbery,
attempted robbery, and (non-domestic) battery convictions. His
only sex offense, and the source of his registration obligations
under SORNA, is a 2008 conviction in Indiana for sexual battery of
a minor. The pre-sentence report's description of the
circumstances of the Indiana offense -- a description Medina did
not dispute -- is very disturbing.
According to the report, Medina's three-year-old
stepdaughter told his then-wife in 2007 that Medina had "'peed' in
her mouth." Medina's then-wife proceeded to ask her three other
children if Medina had "had any inappropriate contact with them."
The report stated that Medina's then-wife learned that Medina had
"fondled" his seven-year-old stepdaughter on "three or four
separate occasions."
Medina ultimately pled guilty to a single count of sexual
battery of a minor. The conviction was based on Medina's abuse of
the seven-year-old stepdaughter. Medina was sentenced to seven-
and-a-half years in prison, of which he served three years before
he was released on probation in July of 2011.
After release on probation, Medina lived in Indiana and
held a job there. On April 29, 2012, however, he quit that job.
Then, on May 3, he failed to report for a polygraph examination
that the terms of his probation required. On May 11, he was
-3-
suspended from Indiana's Sex Offender Treatment Program. Some time
that same month, Medina moved to Puerto Rico.
On January 10, 2013, Medina was arrested in Puerto Rico
for violating SORNA because he had failed to register there as a
sex offender, as he was required to do as a consequence of his
earlier Indiana conviction. See 18 U.S.C. § 2250(a). Two months
later, on April 5, 2013, Medina entered into a plea agreement. The
District Court accepted Medina's plea to the SORNA offense that
same day. On July 8, 2013, the District Court sentenced Medina to
thirty months of incarceration, followed by twenty years of
supervised release.
Medina now appeals to this court.1 He challenges certain
aspects of the supervised release portion of his sentence. We
consider those challenges in turn.
II.
Medina first argues that the District Court erred when it
imposed a supervised release term of twenty years. Medina traces
that error to the District Court's classification of his failure-
to-register offense under SORNA as a "sex offense."
Under the Sentencing Guidelines, a conviction for a "sex
offense" results in a recommended range for a term of supervised
1
Medina's plea agreement included a waiver-of-appeal clause,
but the government concedes that Medina never knowingly waived his
right to challenge the supervised release term and conditions on
appeal since the District Court assured Medina at the plea hearing
that such challenges would be preserved.
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release that spans from a lower bound of the statutory minimum of
five years to an upper bound of life. See 18 U.S.C. § 3583(k);
U.S.S.G. § 5D1.2(b)(2). But Medina argues that the guidelines do
not actually treat a SORNA violation as a "sex offense." And thus
Medina argues that, under the guidelines, the actual recommended
term of supervised relief for the SORNA offense is only the
statutory minimum of five years, with no higher maximum term. See
United States v. Goodwin, 717 F.3d 511, 520 (7th Cir. 2013).
The guidelines are not binding on the District Court.
United States v. Booker, 543 U.S. 220, 245 (2005). A mistaken
application of the guidelines, however, can constitute a reversible
sentencing error. That is because "[o]nly after a court has
correctly calculated the applicable [guidelines recommendation]
. . . can it properly exercise its discretion to sentence a
defendant within or outside the applicable Guidelines range."
United States v. Millán-Isaac, 749 F.3d 57, 66 (1st Cir. 2014).
Thus, Medina contends, we must vacate his supervised release
sentence because the District Court mis-classified his SORNA
offense as a "sex offense" and thus committed a guidelines
calculation error.
In determining the appropriate standard of review, we
note that Medina did object to the recommended term of supervised
release set forth in the probation office's pre-sentence report.
That report classified Medina's SORNA offense as a "sex offense."
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That report thus recommended that Medina receive a term of
supervised relief somewhere within a range from five years to life.
Medina did not, however, press that same objection to the District
Court at the sentencing hearing. And Medina failed to do so even
though he had an opportunity to make that objection, and even
though the District Court adopted the same guidelines calculation
as the report.
In consequence, the government argues that we may review
Medina's challenge to the proper classification of his SORNA
offense only under the strict, plain error standard. Medina
disputes that. For purposes of this appeal, however, we may assume
the plain error standard applies without prejudicing Medina.2 And
that is because Medina's challenge succeeds even under that more
onerous standard.
The District Court set the term of supervised release
after calculating the guidelines range for that term to be five
years to life. That calculation was erroneous, as the government
2
This Circuit has never decided what standard of review
applies when a defendant objects to a pre-sentence report but does
not reassert that objection at sentencing, and other circuits have
diverged. Compare United States v. Hurst, 228 F.3d 751, 760-61
(6th Cir. 2000) (holding that a sentencing court need not address
a defendant's objections to a pre-sentence report where the
defendant "did not expressly call them to the court's attention
during the sentencing hearing") with United States v. Sager, 227
F.3d 1138, 1148 (9th Cir. 2000) ("It is technically enough, of
course, to file a written objection to the [pre-sentence report],
but an astute attorney filing such an objection would also raise
the issue again at sentencing if it appears to have gone
unaddressed.").
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now concedes. The term "sex offense" in section 5D1.2(b) of the
sentencing guidelines does not encompass a SORNA violation for
failing to register as a sex offender. Our reasons for so
concluding are the same as those set forth in the Seventh Circuit
precedent that the government invokes in conceding the District
Court's error. See Goodwin, 717 F.3d at 519-20.
Further, the District Court's contrary interpretation of
the meaning of "sex offense" was -- as the Seventh Circuit also
held in Goodwin, and as the government also now concedes -- "(1) an
error or defect (2) that is clear or obvious (3) affecting the
defendant's substantial rights." Id. at 518. And while the
government does not specifically make the further concession
that the error "seriously affect[ed] the fairness, integrity, or
public reputation of judicial proceedings," Johnson v. United
States, 520 U.S. 461, 467 (1997) -- the last prong of the plain-
error test -- we believe that the District Court's error
necessarily had that effect on the sentencing, and the government
does not argue otherwise.
By mis-classifying Medina's SORNA offense, the District
Court imposed a supervised release term that it believed fell
within the guidelines-recommended range. In fact, however, the
term imposed was four times longer than the term the guidelines
actually recommend. See Goodwin, 717 F.3d at 520-21 (explaining
the proper calculation, and finding the fourth plain-error prong
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met under similar circumstances); cf. United States v. Farrell, 672
F.3d 27, 37 (1st Cir. 2012) (finding the fourth prong met where the
government did not argue it was not met, and where the district
court imposed a sentence based on erroneous statutory minimum and
guidelines determinations).
We thus conclude that the District Court did commit plain
error. And, accordingly, we vacate and remand so that the District
Court may take account of the guidelines' actual recommendation
regarding the appropriate term of supervised release for Medina's
SORNA offense.
III.
Medina also challenges two conditions that he must obey
for the duration of his supervised release term, however long it
may turn out to be. In particular, Medina challenges a condition
prohibiting him from possessing or accessing sexually stimulating
materials and a condition mandating his compliance with penile
plethysmograph testing if his sex offender treatment program
requires such testing.
There are two basic kinds of supervised release
conditions. The first kind are mandatory conditions. By operation
of statute, mandatory conditions are automatically imposed in every
case in which a defendant receives supervised release as part of
his sentence. See 18 U.S.C. § 3583(d). The second kind are
special conditions. These conditions are imposed at the discretion
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of the district court. See id. The two conditions that Medina
challenges are of this latter kind.
Although district courts have significant discretion to
impose special conditions of supervised release, that discretion is
not unlimited. A district court may impose a special condition
only if the district court first determines that the condition:
(1) is reasonably related to the factors set
forth in [18 U.S.C. §] 3553(a)(1), (a)(2)(B),
(a)(2)(C), and (a)(2)(D);
(2) involves no greater deprivation of liberty
than is reasonably necessary for the purposes
set forth in [18 U.S.C. §] 3553(a)(2)(B),
(a)(2)(C), and (a)(2)(D); and
(3) is consistent with any pertinent policy
statements issued by the Sentencing Commission
pursuant to 28 U.S.C. [§] 994(a).
18 U.S.C. § 3583(d).
In this way, the governing statute directs district
courts, before imposing a special condition, to take account of
"the nature and circumstances of the offense and the history and
characteristics of the defendant," id. § 3553(a)(1), the need "to
afford adequate deterrence to criminal conduct," id.
§ 3553(a)(2)(B), the need "to protect the public from further
crimes of the defendant," id. § 3553(a)(2)(C), and the need "to
provide the defendant with needed educational or vocational
training, medical care, or other correctional treatment in the most
effective manner," id. § 3553(a)(2)(D). By requiring consideration
of these factors, the statute ensures that district courts will
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impose a special condition only if the condition will further at
least one of "the three legitimate statutory purposes of
deterrence, protection of the public, and rehabilitation."3 United
States v. Gementera, 379 F.3d 596, 600 (9th Cir. 2004); accord
United States v. York, 357 F.3d 14, 20 (1st Cir. 2004).
But the statute does more than instruct district courts
to ensure a "reasonabl[e] relat[ion]" between the condition and the
sentencing goals the condition is intended to serve with respect to
the individual defendant. 18 U.S.C. § 3583(d). The statute also
requires district courts to ensure the condition "involves no
greater deprivation of liberty than is reasonably necessary" given
who the defendant is, the defendant's offense and criminal history,
and the ends of supervised release.4 See United States v. Roy, 438
3
The retributive purpose, which sentencing generally may
also serve, is reflected in the following sentencing factor set
forth in 18 U.S.C. § 3553(a)(2)(A): "the need for the sentence
imposed . . . to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the
offense." See Tapia v. United States, 131 S. Ct. 2382, 2387-88
(2011) (explaining that § 3553(a)(2)(A) concerns "retribution").
But the statute governing the imposition of a special condition of
supervised release specifically omits this factor from the ones
that a district court may consider in imposing a special condition.
See 18 U.S.C. § 3583(d)(1); Tapia, 131 S. Ct. at 2388 ("[A] court
may not take account of retribution (the first purpose listed in
§ 3553(a)(2)) when imposing a term of supervised release."). That
omission reflects the distinct purposes that supervised release
aims to accomplish.
4
The statute additionally requires consideration of "any
pertinent policy statements issued by the Sentencing Commission,"
18 U.S.C. § 3583(d)(3), but the parties identify no policy
statements that are pertinent to the issues before us.
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F.3d 140, 144 (1st Cir. 2006); United States v. Smith, 436 F.3d
307, 311 (1st Cir. 2006). And finally, our precedent further
requires that the special condition "have adequate evidentiary
support in the record." Roy, 438 F.3d at 144.
With that framework in mind, we now consider the two
special conditions that are at issue in this appeal. With respect
to each, Medina contends that the District Court failed to provide
the statutorily required justification.
IV.
We first address Medina's challenge to the District
Court's imposition of the special condition concerning sexually
stimulating material. That condition provides that Medina may not:
view, use, possess, purchase, distribute
and/or subscribe to any form of pornography,
erotica or sexually stimulating visual or
auditory material, electronic media, computer
programs or services including but not limited
to videos, movies, pictures, magazines,
literature, books, or other products depicting
images of nude adults or minors in a sexually
explicit manner.
The condition further forbids Medina from entering any location
where such material can be accessed, and from "accessing any
material that relates to the activity in which the defendant was
engaged in committing the instant offense, namely child
pornography."5
5
Medina does not challenge this condition as vague, and so
we do not express any opinion on whether it presents a vagueness
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Medina challenges this condition as a whole. But Medina
first argues that the last sentence of this condition must be
vacated. He argues that the text of this last sentence reveals
that it is designed for a defendant who has been convicted of a
"child pornography" offense, a type of offense for which Medina was
not even charged. The government concedes as much -- in part, no
doubt, because striking this portion of the condition has no
practical consequence. That is because a separate, mandatory
condition of supervised release already prohibited Medina from
committing "another Federal, State, or local crime during the term
of supervision." 18 U.S.C. § 3583(d). That condition thus
necessarily prohibited Medina from possessing illegal material,
including, for example, child pornography. See 18 U.S.C. § 2252.
With that portion of the condition out of the way, our
attention focuses on the remainder of the condition, which would
prohibit Medina from possessing and accessing "any form of
pornography, erotica or sexually stimulating visual or auditory
material." In practical effect, this condition restricts only
"legal material involving consenting adults," United States v.
problem. Cf. United States v. Perazza-Mercado, 553 F.3d 65, 81
(1st Cir. 2009) (Howard, J., dissenting in part) (raising vagueness
concerns with respect to a condition that prohibited a defendant
from possessing "any kind of pornographic material").
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Perazza-Mercado, 553 F.3d 65, 76 (1st Cir. 2009), and the
government does not argue otherwise to us.6
The government argues, as it did with respect to Medina's
challenge to the length of his supervised release term, that we may
review the imposition of this condition only for plain error and
not for abuse of discretion as would otherwise be the case. See
id. at 69. Medina responds that he objected when the probation
office recommended the condition in the pre-sentence report.
6
In their briefs, Medina and the government address their
arguments to the validity of the special condition as a whole.
They do not separately discuss the parts of the condition that
refer to "erotica" and "sexually stimulating visual and auditory
material." Neither party therefore addresses whether the
condition, in addition to prohibiting Medina from possessing or
accessing adult pornography, also prohibits Medina from possessing
or accessing otherwise legal erotic materials involving simulated
sexual depictions of children, such as "virtual child pornography."
See Ashcroft v. Free Speech Coalition, 535 U.S. 234, 250-56 (2002)
(holding unconstitutional a criminal prohibition on "virtual child
pornography" which does not involve images of actual children). In
the absence of briefing from the parties, we will not address here
whether the condition is properly interpreted to prohibit Medina
from possessing such material, nor whether that particular aspect
of the condition might be adequately explained on this record by
the nature of Medina's prior offense. See Perazza-Mercado, 553
F.3d at 74-79 (vacating a condition that prohibited "possession of
any kind of pornographic material" without addressing this issue).
Likewise, the parties' briefs do not separately address the
portion of the condition prohibiting Medina from entering locations
where sexually stimulating materials may be accessed. That portion
of the condition was not present in Perazza-Mercado, and it may
raise distinct issues. Cf. id. at 79-80 (Howard J., dissenting)
(expressing concern that "allowing unfettered access to adult
pornography could lead [a defendant] . . . to places where
opportunities may exist to commit other crimes against minors").
Given the parties' lack of attention to those aspects of this
supervised release condition, we will leave them to the District
Court on remand.
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However, Medina did not raise his objection at the sentencing
hearing, despite the opportunity that he had to do so and despite
the fact that he raised other issues. Thus, here, too, we will
assume that the plain error standard applies, as, once again, we
find reversible error even under that more demanding standard.
In challenging the condition, Medina relies primarily on
our decision in Perazza-Mercado. There, we vacated on plain-error
review a supervised release condition that imposed a complete ban
on a defendant's possession of pornographic materials. We
explained that a district court must "provide a reasoned and
case-specific explanation for the sentence it imposes." Id. at 75
(quoting United States v. Gilman, 478 F.3d 440, 446 (1st Cir.
2007)). And we concluded that the district court had failed to do
so. See id.
We did observe in Perazza-Mercado that "'a court's
reasoning can often be inferred' after an examination of the
record." Id. (quoting United States v. Jiménez-Beltre, 440 F.3d
514, 519 (1st Cir. 2006) (en banc)). But we concluded that no
adequate explanation for the pornography restriction could be
inferred from the record. Id. at 76. In particular, we observed,
there was no evidence in the record sufficient to support the
conclusion that pornography had "contributed to [Perazza's] offense
or would be likely to do so in the future." Id. That was so even
though Perazza's crime of conviction ("knowingly engaging in sexual
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contact with a female under the age of twelve") and admitted past
behavior (which included a "pattern of illicit conduct toward young
girls") were "cause for great concern." Id. at 66, 76. We
therefore concluded that the district court had committed plain
error in imposing the condition. Id. at 75.
Here, we are bound by Perazza-Mercado. The District
Court did not expressly justify the condition in terms of the
statutory considerations of deterrence, protection of the public,
and rehabilitation -- or in any other terms. See id. Nor can the
District Court's unarticulated reasoning "'be inferred' after an
examination of the record." Id. As in Perazza-Mercado, "there is
no evidence in the record" to indicate that such material
"contributed to [Medina's] offense or would be likely" to
contribute to recidivism in the future given Medina's particular
history and characteristics. Id. at 76.
The probation officer here did recommend the condition in
the pre-sentence report, unlike in Perazza-Mercado, where the
report did not mention such a condition at all, see id. at 74. But
the probation officer provided no explanation for the condition --
not even in response to Medina's objection. She simply left the
decision whether to impose the condition "to the sound discretion
of the [District] Court."
Nor, under Perazza-Mercado, can the required explanation
be derived from Medina's criminal history. Medina's failure-to-
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register offense did not itself, quite obviously, involve the use
of pornographic or other sexually stimulating materials. And,
revolting as the actions that led to Medina's 2008 conviction are,
the record here, under the controlling reasoning of Perazza-
Mercado, fails to reveal a link between Medina's commission of that
offense and the prohibited adult materials. See id. at 66, 76.
The government responds by identifying one distinction
between this case and Perazza-Mercado. There, we noted that "there
was no suggestion in the [pre-sentence report] or at sentencing
that appellant had abused or even possessed pornography in the
past." Id. at 76 (emphasis added). Here, by contrast, as the
government points out, the pre-sentence report does contain a
reference to the defendant's use of pornography at approximately
the same time as his underlying sex offense. Specifically, the
report notes that Medina's ex-wife "indicated that they often
watched pornography together while having intercourse."
But nothing in the record links this single reference,
involving lawful adult behavior, to the criminal acts that serve as
the basis for the special supervised release condition. See United
States v. Ramos, 763 F.3d 45, 64 n.28 (1st Cir. 2014) (declining to
distinguish Perazza-Mercado based on a similar reference to adult
pornography in the pre-sentence report, because "nothing in the
record justifies, as far as we can tell, the conclusion that
viewing adult pornography was a habit that 'contributed to [the
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defendant's] offense or would be likely to do so in the future'").
Nor can it suffice for the government to assert, as it does, that
the condition may be inferentially justified because there is a
general correspondence between sex offender recidivism and the use
of pornography. If such an asserted correspondence sufficed, we
would not have invalidated the pornography ban in Perazza-Mercado.
See 553 F.3d at 78. We thus conclude that, given our controlling
precedent, the record before us "simply does not support the
conclusion that the condition would promote the goals of supervised
release without effecting a greater deprivation of liberty than
reasonably necessary to achieve those goals." Id. at 75.
The government's final attempt to defend the condition
also fails. The government contends that our decision in United
States v. Sebastian, 612 F.3d 47 (1st Cir. 2010), indicates that
the District Court was not obliged to offer more of an explanation
for this special condition than was given. But that case, unlike
this one and unlike Perazza-Mercado, did not involve a "total ban
on . . . possession of any pornography in the home." Id. at 52.
The condition in Sebastian instead prohibited possession of
pornography only "if [Sebastian's] [sex offender] treatment program
mandated such a ban." Id. Sebastian thus explained that this
"conditional limitation" was "hardly the same" as the blanket ban
in Perazza-Mercado, and did "little more than require Sebastian to
follow the rules of any program he may be required to attend" as
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part of his supervised release. Id. In consequence, we concluded
that the District Court's explanatory obligations had been met, as
they were not the same as they had been in Perazza-Mercado. Id.
Here, though, the ban is total, as in Perazza-Mercado,
rather than conditioned on the requirements imposed by a sex
offender treatment program, as in Sebastian. And thus, we believe,
as we recently held in a similar case, that Perazza-Mercado sets
forth the appropriate standard for determining whether the
condition is justified. See Ramos, 763 F.3d at 64 n.29 (following
Perazza-Mercado, and distinguishing Sebastian, where the case
involved a total ban on pornography possession).
Under that controlling precedent, the imposition of this
condition, on this record, is plain error. See id. at 64; Perazza-
Mercado, 553 F.3d at 76. There "may well be a reason to impose a
pornography ban" in this case. Perazza-Mercado, 553 F.3d at 76.
But if so, the District Court has not yet provided it. Thus, we
vacate the District Court's imposition of this special condition.
V.
We now turn to Medina's remaining challenge. Medina
objects to the District Court's requirement that he submit to
penile plethysmograph, or PPG, testing, if the sex offender
treatment program he must participate in as a condition of his
supervised release requires such testing.
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In bringing this challenge, Medina does not contest the
requirement that he undergo sex offender treatment as a special
condition of supervised release. See United States v. Morales-
Cruz, 712 F.3d 71, 75-76 (1st Cir. 2013) (finding no abuse of
discretion in that case in the imposition of a sex offender
treatment special condition in connection with a SORNA conviction).
And the treatment condition that the District Court imposed does
not require, by its terms, that the sex offender treatment program
Medina must complete actually use PPG testing.7 In fact, the
condition does not address at all how the treatment program may use
such testing. But the condition does specifically oblige Medina to
comply with PPG testing if his particular treatment program chooses
to order such testing. And it is that mandatory compliance
obligation to which Medina objects.
PPG testing "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
7
The condition provides:
The defendant shall undergo a sex-offense-specific
evaluation and participate in a sex offender
treatment/and or [sic] mental health program arranged by
the Probation Officer. The defendant shall abide by all
rules, requirements, and conditions of the sex offender
treatment program(s), including submission to testing;
such as polygraph, penile plethysmograph (PPG), Abel
Assessments, visual reaction testing or any other testing
available at the time of his release.
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States v. Weber, 451 F.3d 552, 554 (9th Cir. 2006) (quoting Jason
R. Odeshoo, Of Penology and Perversity: The Use of Penile
Plethysmography on Convicted Child Sex Offenders, 14 Temp. Pol. &
Civ. Rts. L. Rev. 1, 2 (2004)). Thus, where the pornography-ban
condition seeks to limit Medina's viewing of pornographic material,
PPG testing affirmatively requires it, and in extremely invasive
circumstances. See id. Testing may take as long as several hours
to complete per session. Id. at 563.
The testing is controversial, both as to whether it is
effective and as to whether it is unduly invasive and thus
degrading. See id. And, in consequence of such concerns, two of
our sister circuits have imposed substantial explanatory
obligations on district courts that choose to mandate submission to
PPG testing if prescribed by a required sex offender treatment
program. See United States v. McLaurin, 731 F.3d 258, 263 (2d Cir.
2013); Weber, 451 F.3d at 568-69.
Medina relies on these precedents in contending that the
District Court failed to offer a sufficient justification for the
PPG condition here. Before directly addressing that contention,
however, we must first address the government's argument that this
Circuit's precedent limits the scope of our review until such time
as the treatment program actually requires Medina to submit to PPG
testing.
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A.
In arguing that our review is limited, the government
does not dispute that Medina properly preserved his objection to
this condition. Medina first objected to the pre-sentence report's
recommendation that he be required to submit to PPG testing if
ordered to do so as part of a sex offender treatment program.
Medina lodged that objection "on Daubert/Frye unreliability
standards"8 as well as by contending that PPG testing "is
physically invasive and scientifically questionable." Medina went
on to explain that such testing "is degrading and violates the
defendant's right to be free from cruel, degrading, inhuman
treatment and his right to privacy and to be protected from medical
abuse."
Then, at sentencing, Medina's counsel renewed the
objection. Medina's counsel emphasized that she "object[ed] to the
imposition of that treatment, in particular to the PPG. We
8
The references presumably were to Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Frye v. United
States, 293 F. 1013 (D.C. Cir. 1923), which set forth the inquiry
into scientific reliability that a district court must undertake
before admitting expert testimony into evidence. Although neither
Daubert nor Frye has a direct application to conditions of
supervised release, the defendant appears to have invoked those
cases as a shorthand way of attacking the reliability of PPG
testing. And the Ninth Circuit has observed that "[c]ourts have
uniformly declared that the results of [PPG] tests are
'inadmissible as evidence'" under the Daubert standard because
"'there are no accepted standards for this test in the scientific
community.'" Weber, 451 F.3d at 565 n.15 (quoting Doe ex rel.
Rudy–Glanzer v. Glanzer, 232 F.3d 1258, 1266 (9th Cir. 2000)).
-21-
understand it's invasive, it's humiliating, it hasn't even passed
the Daubert standard."
Confronted with a timely objection to a special condition
of supervised release, we ordinarily would review a district
court's imposition of that aspect of the sentence for abuse of
discretion. See Perazza-Mercado, 553 F.3d at 69. But the
government argues that Medina's burden to show error in the
imposition of the sentence is even greater here because there is
necessarily uncertainty over how and why PPG testing would actually
be used on Medina -- if, that is, it ever is used at all.
Under our decision in Sebastian, the government argues,
the contingent nature of this condition requires Medina to show
that PPG testing is "facially unreasonable" in order to invalidate
it on direct appeal. 612 F.3d at 52. And that means, the
government further contends, that Medina's challenge must fail for
one of two reasons.
First, the government argues that the challenge is
premature because the actual application of the testing will occur,
if at all, only in the future, and will depend on the procedures
that the sex offender treatment program chooses to use. Second,
the government argues that, to the extent the challenge is not
premature, it is still without merit because PPG testing is "widely
used for evaluating and treating sex offenders like" Medina and
thus the requirement to submit to it if prescribed by a treatment
-22-
program cannot possibly be deemed unreasonable on its face at
present. But we do not find persuasive either of the government's
contentions about why Medina's challenge necessarily fails under
that "facially unreasonable" standard.
1.
The government does not use the word "ripeness" in making
the argument that Medina's challenge is premature. But the
argument would seem to be a close cousin of a ripeness argument
that two circuits have accepted in this context. See United States
v. Rhodes, 552 F.3d 624 (7th Cir. 2009); United States v. Lee, 502
F.3d 447 (6th Cir. 2007).
Those circuits emphasized that contingent PPG-testing
conditions like this one "implicate[] only the potential use of a
penile plethysmograph," and that "there is no guarantee that [the
defendant] will ever be subject to plethysmograph testing." Lee,
502 F.3d at 450; see also Rhodes, 552 F.3d at 628. Moreover, the
Sixth and Seventh Circuits emphasized that the defendants in those
cases were still serving long prison sentences and would not
potentially face PPG testing for many years, see Rhodes, 552 F.3d
at 628 (at least eight-and-a-half years); Lee, 502 F.3d at 450 (not
before 2021), and thus that scientific or legal developments might
render the testing an anachronism by the time the defendants were
released from prison, see Rhodes, 552 F.3d at 628 ("[T]he
development of science or the law may render the PPG testing
-23-
irrelevant or even illegal, or maybe the movement will be in a
different direction altogether . . . ."); Lee, 502 F.3d at 451 ("We
cannot speculate on what will happen by 2021 with respect to penile
plethysmograph testing. For example, by then, the test may be held
to violate due process rights. Or, its reliability will have been
debunked. Or, perhaps a less intrusive test will have replaced
it.").
But this Circuit concluded in United States v. Davis, 242
F.3d 49, 51 (1st Cir. 2001) (per curium), that a challenge to even
a contingent supervised release condition was ripe, and "not
hypothetical," where the judgment explicitly spelled out the
condition and the defendant challenged "the special condition
itself, not its application or enforcement." Id. We explained
that "[t]he judgment imposing sentence, of which the challenged
special condition is a part, is a final judgment." Id. And we
permitted the challenge to proceed even though the condition at
issue merely required the defendant to cooperate with hypothetical
future "investigations and interviews" by his probation officer,
noting that "Davis's term of supervised release will commence in
less than two months." Id. at 50-51.
We conclude the challenge in this case, like the one in
Davis, is ripe. As in Davis, the judgment imposing the sentence in
this case expressly spells out the condition that the defendant
-24-
challenges.9 Moreover, Medina was sentenced to thirty months in
prison in July of 2013. That means he, too, could be subject to
the condition he challenges in the near term, when he is released
from prison and the treatment program commences.
Finally, consistent with the requirement imposed by
Sebastian's "facially unreasonable" standard, Medina does not argue
that PPG testing is impermissible because it will be used against
him in some unusually inappropriate or ineffective way. See 612
F.3d at 52. And thus his challenge does not depend on the
particular way in which his treatment program may choose to use PPG
testing. Medina instead contends that PPG testing is so inherently
invasive and unreliable that the requirement that he submit to its
use, on the record before the District Court, is unlawful however
the testing may be used. Cf. Davis, 242 F.3d at 51-52 (upholding
a conditional condition on direct appeal since it had "obvious
relevance" to the defendant's "probationary status" and would not
"necessarily" raise the problems that the defendant was concerned
about); Sebastian, 612 F.3d at 52 (emphasizing that the defendant
9
Because the conditional condition challenged in this case,
as in Davis, is explicitly spelled out in and allowed by the
District Court's judgment, we need not address here the distinct
ripeness issues that could arise if a defendant sought to challenge
the possibility of PPG testing in connection with a special
condition that required only that the defendant comply with a sex
offender treatment program's rules without discussing PPG testing
in particular. Cf. Weber, 451 F.3d at 561 n.12 (distinguishing a
case involving a special condition requiring only compliance with
a program's rules and not mentioning PPG testing specifically).
-25-
had a limited basis on which to challenge a contingent condition on
direct review, as "what [pornography] ban, if any, may be imposed
is uncertain"). And, indeed, Sebastian applied the "facially
unreasonable" standard to adjudicate on direct review such a facial
challenge to a contingent condition of supervised release, even
though that condition would not take effect for another decade.
See 617 F.3d at 52 (finding the condition adequately justified).10
2.
That leaves only the government's argument that
Sebastian's "facially unreasonable" standard requires that we
reject Medina's facial challenge as meritless due to the
"widespread" use of PPG testing in sex offender treatment programs
and the fact that Medina will be forced to submit to such testing,
if at all, only in connection with such a program. But we do not
find this argument for rejecting Medina's challenge persuasive
either.
10
Of course, as Sebastian shows, the requirement that the
defendant challenge the condition itself and not the nature of its
future implementation may mean that a defendant's "facially
unreasonable" challenge to a contingent condition will fail. See
Sebastian, 612 F.3d at 52. And when that occurs, "[i]t remains
open to [the defendant] to challenge specific applications of" the
contingent condition "when actually imposed in the future." Id.
(citing York, 357 F.3d at 23); see also 18 U.S.C. § 3583(e)(2)
(allowing a district court to "modify, reduce, or enlarge the
conditions of supervised release, at any time prior to the
expiration or termination of the term of supervised release"). But
the availability of that distinct form of challenge to a condition
of supervised release provides no basis for denying Medina the
right to challenge this significant part of his sentence on direct
appeal. See Weber, 451 F.3d at 569-70.
-26-
Sebastian's application of the "facially unreasonable"
standard did take account of the fact that the challenged condition
might facilitate a sex offender treatment program. See 612 F.3d at
52. And Sebastian further took account of the importance of
allowing the district court to mandate compliance with such a
treatment program in advance. Id. Applying those considerations,
Sebastian concluded (on review for plain error) that a limited
justification rooted in the value of ensuring compliance with
treatment-program rules sufficed to uphold the conditionally
imposed pornography ban there at issue, even though there was a
factual dispute about the efficacy of the use of such bans in
general. See id.
But Sebastian did not hold that a minimal justification
relating to compliance with treatment-program rules would suffice
to ward off a challenge to the facial reasonableness of every
condition connected with a treatment program that a district court
might choose to impose, no matter its nature. See id. And Medina
contends that PPG testing raises distinct issues because it is so
invasive and of such questionable reliability. There is no
question that, in combination, these concerns do make his challenge
to PPG testing distinguishable from the challenge to the condition
at issue in Sebastian itself. For that reason, we do not believe
Sebastian compels us to reject Medina's challenge, even if, as the
government asserts, PPG testing is widely used in sex offender
-27-
treatment programs. Instead, Medina's challenge must be confronted
on its own terms and in light of the particular arguments the
government makes about the reasonableness of this condition on the
record in this case.
Likewise, the case on which Sebastian relied in setting
forth the "facially unreasonable" standard -- United States v.
York, 357 F.3d 14, 23 (1st Cir. 2004) -- does not dictate rejection
of Medina's facial challenge to this condition. In rejecting a
challenge to a requirement that the defendant in that case submit
to polygraph testing as part of his supervised release, York
focused largely on considerations unique to polygraph testing and
on arguments the government advanced about the condition's
reasonableness that are not relevant here. See id. For example,
in rejecting the defendant's challenge to polygraphy as "inherently
unreliable," York emphasized that even an unreliable lie-detector
test could deter the defendant from lying and thus further the
goals of supervised release. Id.
In this case, however, the government (for good reason)
makes no similar contention that PPG testing would be useful in
treating Medina even assuming that Medina was right that such
testing is both unusually invasive and unreliable. Thus, the
particular rationale that York relied on to uphold the polygraph
condition's facial reasonableness in that case is not applicable
here.
-28-
Finally, we emphasize, that in Sebastian, the defendant
had made no objection to the condition below. 612 F.3d at 50. We
thus applied the strict plain error standard to the defendant's
contention that the pornography-ban condition was facially
unreasonable. Id. And we referenced that strict standard in
explaining why we saw no need to resolve the "empirical question"
of whether pornography bans assist in sex offender treatment. See
id. at 52. Similarly, in York, our review of the reasonableness of
the polygraph condition also took place without there having been
"[a] timely objection and the creation of a record [that] would
have permitted both the district court and this court to review
York's claims with the benefit of that information." 357 F.3d at
19.
By contrast, here the defendant did make a timely
objection that the contingent supervised release condition was
inherently humiliating and unreliable and thus impermissible -- an
objection that clearly asserted the condition was unreasonable on
its face. Our review, therefore, is not circumscribed in this
case, as it was in Sebastian and York, by the defendant's lateness
in raising the challenge.
Thus, for all of these reasons, we do not believe our
prior precedent, whether Sebastian or York, forecloses Medina's
challenge to the PPG aspect of the supervised release portion of
-29-
his sentence. And so we turn to the merits of his challenge to the
PPG testing condition.
B.
Our Circuit has not yet decided a case involving a
challenge to the imposition of PPG testing as part of a condition
of supervised release -- whether contingent on a treatment
program's prescription or otherwise. And thus we have not
considered before whether such a condition may be successfully
challenged under Sebastian's "facially unreasonable" standard. But
other circuits have addressed whether and when this type of
condition may be imposed, and thus their analysis informs our
assessment of Medina's facial challenge to the condition.
The Fourth Circuit has held that the "plethysmograph test
is 'useful for treatment of sex offenders,'" and thus that a
district court "clearly act[s] within its discretion in imposing"
it as a condition, even, it seems, without offering much of an
explanation for doing so. United States v. Dotson, 324 F.3d 256,
261 (4th Cir. 2003) (quoting United States v. Powers, 59 F.3d 1460,
1471 (4th Cir. 1995)). But while the government urges us to follow
Dotson here, and thus to reject Medina's facial challenge to the
condition, two other circuits have taken a very different approach.
And their analyses support the conclusion that, at least on this
record, the condition at issue in this case is facially
unreasonable.
-30-
The Second Circuit, in United States v. McLaurin,
identified significant constitutional concerns with PPG testing and
thus required that a district court satisfy strict scrutiny before
imposing a PPG testing obligation as a supervised release
condition.11 731 F.3d 258, 261 (2d Cir. 2013). The Second Circuit
did so, moreover, even though the condition did not directly
mandate PPG testing and instead made submission to such testing
contingent on the treatment program's decision to require it. Id.
Seeing a "clear distinction between penis measurement and
other conditions of supervised release," id. at 264, the court held
that PPG testing is so invasive that "it could be justified only if
it is narrowly tailored to serve a compelling government interest,"
id. at 261. McLaurin explained that "the procedure inflicts the
obviously substantial humiliation of having the size and rigidity
of one's penis measured and monitored by the government under the
threat of reincarceration for a failure to fully cooperate." Id.
at 263. Thus, before requiring compliance with PPG testing
prescribed by a treatment program, McLaurin held that a district
court must, "at a minimum, make findings, sufficiently informative
11
Because we conclude that the District Court's justification
for the condition in this case was inadequate as a statutory
matter, we need not address the existence of a separate,
substantive due process limitation on supervised release
conditions. Cf. United States v. Smith, 436 F.3d 307, 310 (1st
Cir. 2006) ("It is beyond hope of contradiction that those who are
convicted of crimes against society lose a measure of
constitutional protection.").
-31-
and defendant-specific for appellate review, that the test is
therapeutically beneficial, that its benefits substantially
outweigh any costs to the subject's dignity, and that no less
intrusive alternative exists." Id.
The Ninth Circuit reached a similar result in United
States v. Weber, although it relied exclusively on the
justificatory requirements imposed by the statute governing the
imposition of special conditions of supervised release. 451 F.3d
at 552-53 (citing 18 U.S.C. § 3583(d)). The court emphasized that
"[p]lethysmograph testing not only encompasses a physical intrusion
but a mental one, involving not only a measure of the subject's
genitalia but a probing of his innermost thoughts as well." Id. at
562-63. Because such testing is "exceptionally intrusive in nature
and duration," the Ninth Circuit held that "the procedure
implicates a particularly significant liberty interest." Id. at
563. The Ninth Circuit further explained that there were serious
concerns about both the testing's reliability and efficacy,
including its "susceptibility to manipulation via faking," id. at
564, and the "lack[ of] 'uniform administration and scoring
guidelines,'" id. at 565 (quoting Walter T. Simon & Peter G.W.
Schouten, The Plethysmograph Reconsidered: Comments on Barker and
Howell, 21 Bull. Am. Acad. Psychiatry & L. 505, 510 (1993)).
On the basis of those concerns, the Ninth Circuit
construed the statute governing the imposition of special
-32-
conditions of supervised release to require "heightened procedural
protections" before a district court could mandate submission to
PPG testing if a sex offender treatment program chose to use the
procedure. Id. at 570. These protections included the requirement
that the district court undertake a "consideration of evidence that
plethysmograph testing is reasonably necessary for the particular
defendant based upon his specific psychological profile." Id. at
569-70.
Weber further explained that, under the governing
statute, a district court needed to give consideration to available
alternatives to PPG testing, such as self-reporting interviews,
polygraph testing, and "Abel testing," which measures the amount of
time a defendant looks at particular photographs. Id. at 567-68.
And finally, Weber explained that, before imposing such a
condition, the district court must "support its decision on the
record with record evidence that the condition of supervised
release sought to be imposed is 'necessary to accomplish one or
more of the factors listed in § 3583(d)(1)' and 'involves no
greater deprivation of liberty than is reasonably necessary.'"12
Id. at 561 (quoting United States v. Williams, 356 F.3d 1045, 1057
(9th Cir. 2004)).
12
Judge Noonan, who concurred, would have gone further "to
hold the Orwellian procedure at issue to be always a violation of
the personal dignity of which prisoners are not deprived." Weber,
451 F.3d at 570 (Noonan, J., concurring).
-33-
The concerns raised by the Second and Ninth Circuits
accord with those we have previously raised about PPG testing,
although we raised them outside the context of a supervised release
condition mandating sex offender treatment. In two cases in the
1990s, we addressed the use of PPG testing as a prerequisite for
continued public employment for employees who came under suspicion
for, respectively, sexually abusing children and possessing child
pornography. See Berthiaume v. Caron, 142 F.3d 12 (1st Cir. 1998);
Harrington v. Almy, 977 F.2d 37 (1st Cir. 1992). And, in doing so,
we acknowledged in each case the unusually invasive nature of such
testing and the debate over its reliability. Berthiaume, 142 F.3d
at 17; Harrington, 977 F.2d at 44.
In Harrington, we described the practice as involving
"bodily manipulation of the most intimate sort," and explained that
"[o]ne does not have to cultivate particularly delicate
sensibilities to believe degrading the process of having a strain
gauge strapped to an individual's genitals while sexually explicit
pictures are displayed in an effort to determine his sexual arousal
patterns." Harrington, 977 F.2d at 44. We also remarked on the
lack of evidence regarding both "the procedure's reliability" and
the availability of any "less intrusive means of obtaining the
relevant information." Id. We thus held that it was a jury
question whether the testing requirement had violated a public
employee's constitutional rights such that the employee was
-34-
entitled to damages. Id. And the Second and Ninth Circuits relied
on Harrington in vacating PPG-testing supervised release
conditions. See McLaurin, 731 F.3d at 261; Weber, 451 F.3d at 563.
In Berthiaume, we did back away somewhat from the
conclusion in Harrington about the plaintiff's right to damages
based on PPG testing. See Berthiaume, 142 F.3d at 15-17. We
concluded that PPG testing's acceptance by some in the treatment
community at that time entitled a public official, who was a
layperson, to qualified immunity from being liable for damages.
Id. at 18. But we explained that it was "highly pertinent" that
the plaintiff there had, to some extent, consented to the test.
Id. And, we were careful to say that "[f]orcible administration"
of PPG testing "would be an entirely different case." Id.
C.
Here, we are confronted with the "[f]orcible
administration" of PPG testing, id., as we are reviewing a
challenge involving a defendant's forced submission to such testing
in connection with a criminal sentence. And now faced with such a
challenge to PPG testing, we conclude that the Second and Ninth
Circuits were right to require a district court to provide a
substantial justification before making submission to PPG testing
part of a condition of supervised release. And we further conclude
that, absent such a justification, the condition is facially
unreasonable.
-35-
In reaching this conclusion, we, like the Ninth Circuit,
are not prepared to "say categorically that, despite the questions
of reliability, [PPG] testing can never reasonably" be imposed as
a special condition of supervised release. Weber, 451 F.3d at 556.
But, like the Second Circuit, we "see a clear distinction" between
the invasiveness of PPG testing "and other conditions of supervised
release." McLaurin, 731 F.3d at 264. And the disputes regarding
the procedure's reliability reinforce the concern raised by its
distinctive invasiveness and unusual physical intrusion into an
individual's most intimate realm. See Weber, 451 F.3d 564-65.
We thus conclude that the condition in this case cannot
be deemed reasonable merely because of the general interest in
ensuring in advance that a treatment program's rules will be
followed. Nor can the condition be deemed reasonable simply
because the condition concerns a procedure that arguably may
facilitate the treatment program.
Instead, in order for the condition to be deemed facially
reasonable, district courts must provide a more substantial
justification, at least once a defendant objects. See 18 U.S.C.
§ 3583(d)(2) (mandating that special conditions "involve[] no
greater deprivation of liberty than is reasonably necessary"); see
also United States v. Malenya, 736 F.3d 554, 560 (D.C. Cir. 2013)
(explaining that § 3583(d)(2) requires "balancing" the sentencing
"goals against the defendant's liberty," and vacating a set of
-36-
challenged conditions); id. at 566 (Kavanaugh, J., dissenting)
(agreeing with the majority that PPG testing in particular
"implicates significant liberty interests and would require, at a
minimum, a more substantial justification than other typical
conditions of supervised release," but disagreeing with the vacatur
of the other challenged conditions). Specifically, in such
circumstance, a district court may not impose the condition unless
it can justify it through "a thorough, on-the-record inquiry into
whether the degree of intrusion caused by such testing is
reasonably necessary 'to accomplish one or more of the factors
listed in § 3583(d)(1)' and 'involves no greater deprivation of
liberty than is reasonably necessary,' given the available
alternatives." Weber, 451 F.3d at 568-69 (quoting Williams, 356
F.3d at 1057).
In conducting that inquiry, district courts must explain
why the imposition of the PPG testing condition would be reasonable
given the individual characteristics of the particular defendant
who would be subject to the condition. See Weber, 451 F.3d at 569-
70. And district courts must base that justification on "adequate
evidentiary support in the record." Roy, 438 F.3d at 144. At
least when confronted with a defendant's objection, we will not
infer a district court's unexpressed justification for this
particularly fraught condition from the record, as we have done
with regard to other conditions. See Perazza-Mercado, 553 F.3d at
-37-
75 (explaining that "'there are limits' to our willingness to
supply our own justification for a particular sentence" (quoting
United States v. Gillman, 478 F.3d 440, 446 (1st Cir. 2007))).
D.
In this case, the District Court made no effort to
respond seriously and on the record to Medina's objections to the
PPG testing condition. The District Court failed to do so even
though Medina apprised first the probation office and then the
District Court that he had serious concerns about the reliability
of PPG testing and about its degrading nature. Instead, when
Medina's counsel objected to the requirement to comply with a
treatment program decision to use PPG testing, the District Court's
response was curt. "The PPGs and all that. Yes, I am going to
allow that. That's for sure." Medina's counsel then responded:
[Medina's Counsel]: Okay. And just for
purposes of the[] record, we object to the
imposition of that treatment, in particular to
the PPG. We understand it's invasive, it's
humiliating, it hasn't even passed the Daubert
standard.
THE COURT: What he has done in his life is
humiliating.
[Medina's Counsel]: Excuse me?
THE COURT: What he has done in his life is
humiliating to victims. Now we're talking
about humiliating him.
The District Court did not then elaborate on this unusually
dismissive response.
-38-
The District Court thus said nothing specific about the
required statutory considerations of deterrence, protection of the
public, and rehabilitation in imposing the PPG condition. But see
18 U.S.C. §§ 3553(a), 3583(d). And, similarly, the District Court
did not address whether the condition "involve[d] no greater
deprivation of liberty than [was] reasonably necessary to" promote
the statutory factors of deterrence, protection of the public, and
rehabilitation, as related to the characteristics of the defendant
and his criminal history. Id. § 3583(d). Nor did the District
Court engage in an evidentiary inquiry into any of the relevant
considerations or point to anything in the record that could have
supplied an evidentiary basis for its imposition of the condition.
See Roy, 438 F.3d at 144 (requiring "adequate evidentiary support
in the record"). We thus vacate the imposition of the PPG testing
portion of this special condition of supervised release, as in the
absence of an on-the-record explanation for it, the condition was
unreasonable on its face.
On remand, we emphasize, any decision to reimpose the PPG
testing condition would require further factual development to show
its reasonableness. The record presently contains no evidence that
would support the sweeping judgment that the PPG testing condition
was justified. For while the pre-sentence report does refer to PPG
testing, the report says nothing about the reliability or efficacy
of PPG testing in particular. Nor does the report offer any
-39-
explanation for how PPG testing would help to address concerns
about recidivism given Medina's particular psychological profile
and criminal history. And the report does not consider whether
alternative methods such as self-reporting interviews, polygraph
testing, and Abel testing would be equally effective. See Weber,
451 F.3d at 567-68.
In fact, the only "evidence" concerning PPG testing
contained in the pre-sentence report is the conclusory statement
that such testing is "a standard condition for this type of
case[]." But that bare assertion is not adequate to show the
condition was reasonable given the serious liberty and reliability
concerns that PPG testing presents and that Medina specifically
raised about such testing in objecting to the condition at
sentencing.
Even in defending the condition on appeal, we note, the
government "makes no distinct argument" that PPG testing "would be
justified as a deterrent measure." McLaurin, 731 F.3d at 264. The
government simply asserts to us that the testing would have a
deterrent effect. The government does argue that the testing is
justified by the interest in providing Medina treatment and
protecting the public from possible future recidivism. But the
government bases that assertion on the conclusory statement that
PPG testing "is widely used for evaluating and treating sex
offenders like" Medina. That statement comes unadorned, however,
-40-
with any explanation of what "widely used" means in practice or in
context. Thus, "[t]he Government is unable to say, except with
vague generalities, how the use of the device amounts to
'treatment,' and is unable to point to any expected, much less
tangible, benefits to [Medina or the public] from the testing."
Id. at 262. In that regard, the government offers no more in
defense of the condition on appeal than was offered on behalf of
the condition at sentencing. But the "showing" provided below, as
we have explained, was insufficient to overcome Medina's contention
that the condition is unreasonable on its face, and thus without
regard to the particular way in which it may be applied to him.
VI.
A district court has significant discretion in setting a
term of supervised release. A district court also has significant
discretion to craft special supervised release conditions. But a
district court's exercise of its discretion must still accord with
the statutory framework governing supervised release.
Here, we conclude that the District Court improperly
determined the relevant guidelines range in setting the term of
supervised release; imposed a blanket pornography ban without
explanation and contrary to directly applicable precedent; and then
imposed an extraordinarily invasive supervised release condition
without considering the condition's efficacy in achieving the
statutory purposes of such conditions, given both the particular
-41-
defendant whose liberty was at stake and the evident concerns he
directly raised about the appropriateness and reliability of the
condition to which he was being required to submit. Although we
have been deferential in reviewing district courts crafting of
special conditions of supervised release, Congress and our
precedent required more of the district court in this instance. We
thus vacate the supervised release sentence term, as well as the
conditions challenged on this appeal, and remand the case for re-
sentencing.
-42-