United States v. Stoterau ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 07-50124
Plaintiff-Appellee,
v.  D.C. No.
CR-06-00190-AG
JOSEPH STOTERAU,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
Argued and Submitted
March 6, 2008—Pasadena, California
Filed April 29, 2008
Before: J. Clifford Wallace, Ronald M. Gould, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Ikuta
4607
UNITED STATES v. STOTERAU 4611
COUNSEL
Jonathan Libby, Deputy Federal Public Defender, Los Ange-
les, California (argued); Kathryn A. Young, Deputy Federal
Public Defender, Los Angeles, California, for the defendant-
appellant.
Anne C. Gannon, Assistant United States Attorney, Santa
Ana, California, for the plaintiff-appellee.
4612 UNITED STATES v. STOTERAU
OPINION
IKUTA, Circuit Judge:
Joseph Stoterau pleaded guilty to transporting child por-
nography in violation of 18 U.S.C. § 2252A(a)(1). In this
appeal, he challenges several aspects of his sentence, includ-
ing the length of his term of imprisonment and several special
conditions of his supervised release. We affirm in part, vacate
in part, and remand.
I
In December 2005, Joseph Stoterau, then 26, met John Doe
at a gay and lesbian support group. Doe was 14 at the time.
In July 2006, Stoterau introduced Doe to the website “rent-
boy.com.” Stoterau explained that the site was an opportunity
for the two of them to make some money. Doe agreed to
allow Stoterau to take nude pictures of him. Stoterau then
uploaded the photos to rentboy.com and included his own cell
phone number as Doe’s contact information.
When rentboy.com customers would call, Stoterau would
pretend to be Doe. Stoterau would tell customers that he
(Doe) would engage in whatever type of sex they wanted for
$250 per hour. Stoterau would then get in contact with Doe
and provide him with the customers’ details. On at least two
occasions Stoterau drove Doe to locations where customers
paid Doe $250 for various sex acts. After these meetings, Doe
would give part of the $250 to Stoterau. Stoterau would give
Doe alcoholic beverages before each meeting.
On August 4, 2006, officers from Immigration and Cus-
toms Enforcement executed a search warrant at Stoterau’s res-
idence. During the search, officers seized Stoterau’s personal
computer. A subsequent search of the hard drive revealed
images depicting child pornography, that is, visual depictions
UNITED STATES v. STOTERAU 4613
of a minor child engaged in sexually explicit conduct. On
October 30, 2006, Joseph Stoterau pleaded guilty to a one-
count information charging him with transporting child por-
nography in violation of 18 U.S.C. § 2252A(a)(1).1
Following Stoterau’s guilty plea, the probation office pre-
pared a Presentence Investigation Report (“PSR”), which
included the following calculation of Stoterau’s indicated
Guidelines range. First, the PSR noted that the applicable
Guidelines provision for violations of 18 U.S.C.
§ 2252A(a)(1) is U.S.S.G. § 2G2.2 (base offense level 22).
Second, the PSR applied the cross-reference to U.S.S.G.
§ 2G2.1 (sexually exploiting a minor by production of sexu-
ally explicit material) pursuant to U.S.S.G. § 2G2.2(c)
because Stoterau’s offense conduct involved posing and pho-
tographing Doe as he engaged in sexually explicit conduct
under 18 U.S.C. § 2256 (sexually explicit conduct includes
“lascivious exhibition of the genitals or pubic area of any per-
son”). This cross-reference had the effect of increasing Sto-
terau’s base offense level from 22 (per § 2G2.2) to 32 (per
§ 2G2.1). Third, the PSR applied a two-level enhancement
under U.S.S.G. § 2G2.1(b)(2)(A) for an offense involving
“the commission of a sexual act or sexual contact.” Fourth,
the PSR applied a two-level enhancement under U.S.S.G.
§ 2G2.1(b)(3) because Stoterau’s “offense involved distribu-
tion” of pornographic materials. Fifth, the PSR applied a
three-level downward adjustment for acceptance of responsi-
bility under U.S.S.G. § 3E1.1(a) and (b). These computations
resulted in a total offense level of 33. Stoterau’s base offense
level was then combined with his criminal history category of
II.2 This resulted in an indicated Guidelines range of 151-188
months.
1
18 U.S.C. § 2252A(a)(1) punishes “[a]ny person who . . . knowingly
mails, or transports or ships in interstate or foreign commerce by any
means, including by computer, any child pornography.”
2
In 2002, Stoterau was convicted of grand theft, in violation of Cal.
Penal Code § 487(a), receiving stolen property, in violation of Cal. Penal
4614 UNITED STATES v. STOTERAU
As is customary, the PSR also provided a synopsis of Sto-
terau’s offense conduct. Some of the information used in this
synopsis was drawn from several law enforcement reports on
Stoterau’s case. In his sentencing brief, Stoterau objected to
the use of this information, arguing that it was unreliable
hearsay. Stoterau also argued for a “no more than 87 month
sentence,” challenged the two-level enhancement under
U.S.S.G. § 2G2.1(b)(2)(A), and lodged objections against
several of the proposed conditions of supervised release.
The district court held Stoterau’s sentencing hearing on
March 5, 2007. After hearing from the parties and consulting
Stoterau’s PSR, the district court adopted the Guidelines
range calculated in the PSR (151-188 months) and sentenced
Stoterau to a term of imprisonment of 151 months. The court
considered and rejected Stoterau’s argument that the two-
level enhancement under U.S.S.G. § 2G2.1(b)(2)(A) was
inappropriate. Additionally, as part of its sentencing decision,
the district court explicitly referenced the sentencing factors
of 18 U.S.C. § 3553(a) and explained why it believed the sen-
tence was consistent with those factors.
The district court also sentenced Stoterau to a five-year
term of supervised release. As part of this term of supervised
release, the district court imposed a number of special condi-
tions. The district court did not rule on Stoterau’s contention,
raised in his sentencing brief, that the PSR contained unreli-
able hearsay. Stoterau timely appealed.
Stoterau’s appeal raises the following five general issues,
which we discuss in turn: (1) whether the district court erred
Code § 496(a), and second degree burglary from a commercial structure,
in violation of Cal. Penal Code §§ 459, 460(b). In 2003, Stoterau admitted
to being under the influence of a controlled substance, in violation of Cal.
Health & Safety Code § 11550(a). Although this latter case was resolved
through a diversionary disposition, it nevertheless counts for purposes of
a defendant’s criminal history score under U.S.S.G. § 4A1.2(f).
UNITED STATES v. STOTERAU 4615
in imposing the two-level enhancement under U.S.S.G.
§ 2G2.1(b)(2)(A); (2) whether Stoterau’s overall sentence was
unreasonable; (3) whether the district court abused its discre-
tion in imposing eight special conditions on Stoterau’s five-
year term of supervised release; (4) whether the district court
erred in failing to rule on Stoterau’s allegation that the PSR
contained unreliable hearsay; and (5) whether this disposition
should be filed under seal or alternatively, whether we should
identify Stoterau by a pseudonym in place of his true name.
II
Stoterau first argues that the district court erred in imposing
a two-level enhancement under U.S.S.G. § 2G2.1(b)(2)(A) for
offenses involving “the commission of a sexual act or sexual
contact.”3 “This court reviews the district court’s interpreta-
tion of the Sentencing Guidelines de novo, the district court’s
application of the Sentencing Guidelines to the facts of this
case for abuse of discretion, and the district court’s factual
findings for clear error.” United States v. Kimbrew, 406 F.3d
1149, 1151 (9th Cir. 2005).
U.S.S.G. § 2G2.1(b) directs the district court to apply spec-
ified enhancements for six different “[s]pecific [o]ffense
[c]haracteristics.” The specific offense characteristic at issue
3
The section provides, in pertinent part,
2G2.1. Sexually Exploiting a Minor by Production of Sexually
Explicit Visual or Printed Material; Custodian Permitting Minor
to Engage in Sexually Explicit Conduct; Advertisement for
Minors to Engage in Production.
....
(b) Specific Offense Characteristics
....
(2) . . . If the offense involved —
(A) the commission of a sexual act or sexual contact,
increase by 2 levels[.]
4616 UNITED STATES v. STOTERAU
here is identified in U.S.S.G. § 2G2.1(b)(2)(A), which states,
“[i]f the offense involved — (A) the commission of a sexual
act or sexual contact, increase by 2 levels.” Stoterau contends
that he pleaded guilty only to transporting child pornography,
and that the sexual contacts between Doe and the rentboy.com
customers were not part of the offense to which he pleaded
guilty. Accordingly, Stoterau argues, it was inappropriate for
the district court to use § 2G2.1(b)(2)(A) to enhance his sen-
tence.
Stoterau’s argument fails in light of the Guidelines’ defini-
tion of “offense” and its directions regarding the determina-
tion of specific offense characteristics for offense conduct
under Chapter 2 of the Guidelines (which includes
§ 2G2.1(b)(2)(A)). As defined in U.S.S.G. § 1B1.1,
“ ‘[o]ffense’ means the offense of conviction and all relevant
conduct under § 1B1.3 (Relevant Conduct) unless a different
meaning is specified or is otherwise clear from the context.”
U.S.S.G. § 1B1.1 cmt. n.1(H) (emphasis added). Because
nothing in U.S.S.G. § 2G2.1(b)(2)(A) specifies that the defini-
tion of “offense” in that section has a different meaning than
the definition provided in U.S.S.G. § 1B1.1, nor is a different
meaning evident from the context, we conclude that “offense”
for purposes of § 2G2.1(b)(2)(A) includes the relevant con-
duct listed in § 1B1.3. U.S.S.G. § 1B1.3, in turn, provides that
specific offense characteristics under Chapter 2 of the Guide-
lines are to be determined on the basis of the relevant conduct
set forth in § 1B1.3(a).
[1] As defined in § 1B1.3(a)(1), “relevant conduct”
includes “all acts and omissions committed, aided, abetted,
counseled, commanded, induced, procured, or willfully
caused by the defendant . . . that occurred during the commis-
sion of the offense of conviction, in preparation for that
offense, or in the course of attempting to avoid detection or
responsibility for that offense.” U.S.S.G. § 1B1.3(a)(1). “Rel-
evant conduct” also includes “all harm that resulted from the
acts and omissions specified in subsection[ ] (a)(1) . . . and all
UNITED STATES v. STOTERAU 4617
harm that was the object of such acts and omissions.”
U.S.S.G. § 1B1.3(a)(3); see United States v. Hicks, 217 F.3d
1038, 1048 (9th Cir. 2000) (explaining that the phrase “re-
sulted from” in § 1B1.3(a)(3) establishes a causation require-
ment which other circuits have held is satisfied when the harm
was a “direct result” or “flowed naturally” from the defen-
dant’s criminal misconduct). Therefore, if a defendant’s rele-
vant conduct under § 1B1.3(a) (including all acts caused by
the defendant during commission of the offense of conviction
and all harm resulting from such acts) involved “the commis-
sion of a sexual act or sexual contact,” then such sexual act
or contact is part of the defendant’s “offense” and must be
considered when determining the specific offense characteris-
tics under § 2G2.1(b)(2)(A).
[2] As noted above, U.S.S.G. § 1B1.1 defines “offense” as
“the offense of conviction and all relevant conduct under
§ 1B1.3.” Stoterau was convicted of transporting child por-
nography in violation of 18 U.S.C. § 2252A(a)(1). The factual
basis for the transportation element of Stoterau’s conviction
was his uploading of Doe’s photos on rentboy.com. Thus,
uploading the photos was “relevant conduct” for purposes of
U.S.S.G. § 1B1.3(a)(1)(A) because it was an act committed
“during the commission of the offense of conviction.” This
conduct directly resulted in Doe undertaking sexual acts with
rentboy.com customers. These sexual acts constituted a harm
to Doe, an underage boy. Therefore, under U.S.S.G.
§ 1B1.3(a)(3), these sexual acts were part of Stoterau’s rele-
vant conduct because they were a “harm that resulted from the
acts . . . specified in subsection[ ] (a)(1).” Because Doe’s sex-
ual acts were part of Stoterau’s relevant conduct under
§ 1B1.3, they were part of his “offense” as defined in § 1B1.1,
and must be used to determine the specific offense character-
istics for purposes of U.S.S.G. § 2G2.1(b)(2)(A). Therefore,
the district court appropriately took such sexual contacts into
account by applying the two-level enhancement under
U.S.S.G. § 2G2.1(b)(2)(A).
4618 UNITED STATES v. STOTERAU
III
Stoterau next challenges the overall reasonableness of his
term of imprisonment. Appellate courts must employ a two-
step process when reviewing a sentence for reasonableness.
See Gall v. United States, 128 S. Ct. 586, 597 (2007). “[We]
must first ensure that the district court committed no signifi-
cant procedural error, such as failing to calculate (or improp-
erly calculating) the Guidelines range, treating the Guidelines
as mandatory, failing to consider the § 3553(a) factors, select-
ing a sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence . . . .” Id. “Assuming
that the district court’s sentencing decision is procedurally
sound,” we “then consider the substantive reasonableness of
the sentence imposed.” Id. When conducting substantive rea-
sonableness review, we “take into account the totality of the
circumstances, including the extent of any variance from the
Guidelines range.” Id. We review the reasonableness of the
district court’s sentencing decision for abuse of discretion. Id.
That we “might reasonably have concluded that a different
sentence was appropriate is insufficient to justify reversal of
the district court.” Id.
Stoterau raises both procedural and substantive objections
to his sentence. He first contends that the district court did not
adequately consider the § 3553(a) factors. According to Sto-
terau, the district court merely engaged in a rote recitation of
§ 3553(a) and thereby violated the Supreme Court’s admon-
ishment that “[t]he sentencing judge should set forth enough
to satisfy the appellate court that he has considered the par-
ties’ arguments and has a reasoned basis for exercising his
own legal decisionmaking authority.” Rita v. United States,
127 S. Ct. 2456, 2468 (2007).
[3] While district courts are required to “state in open court
the reasons for [their] imposition of the particular sentence,”
18 U.S.C. § 3553(c), this obligation does “not necessarily
require lengthy explanation.” Rita, 127 S. Ct. at 2468. “Cir-
UNITED STATES v. STOTERAU 4619
cumstances may well make clear that the judge rests his deci-
sion upon the Commission’s own reasoning that the
Guidelines sentence is a proper sentence (in terms of
§ 3553(a) and other congressional mandates) in the typical
case, and that the judge has found that the case before him is
typical.” Id. “Judges need not rehearse on the record all of the
considerations that 18 U.S.C. § 3553(a) lists; it is enough to
calculate the range accurately and explain why (if the sen-
tence lies outside it) this defendant deserves more or less.”
United States v. Mix, 457 F.3d 906, 912 (9th Cir. 2006) (inter-
nal quotation marks omitted).
Likewise, “when a party raises a specific, nonfrivolous
argument tethered to a relevant § 3553(a) factor in support of
a requested sentence, then the judge should normally explain
why he accepts or rejects the party’s position.” United States
v. Carty, ___ F.3d ___, 2008 WL 763770, at *5 (9th Cir. Mar.
24, 2008) (en banc). However, when a defendant’s arguments
are straightforward and uncomplicated, the district court does
not abuse its discretion when it listens to the defendant’s argu-
ments and then “simply [finds those] circumstances insuffi-
cient to warrant a sentence lower than the Guidelines range.”
Id. at *7 (quoting Rita, 127 S. Ct. at 2469).
[4] In this case, the district court did reference and apply
the sentencing factors of § 3553(a). It stated:
I believe this sentence satisfies the factors to be con-
sidered under section 3553(a). The court considered
the nature and circumstances of the offense and the
history and characteristics of the defendant. The
court believes the sentence reflects the seriousness of
the offense, particularly as it relates to a minor
whose life may very well be negatively affected by
the conduct of the defendant. The court believes the
sentence is necessary to promote respect for the law
and to let the general public know the seriousness of
this crime through the length of the sentence. The
4620 UNITED STATES v. STOTERAU
court believes this provides a just punishment for the
offense provided. The court believes that it affords
adequate deterrence to this type of criminal conduct.
The court believes this sentence protects the public
from further crimes of this defendant.
This explanation includes references to several subsections of
18 U.S.C. § 3553(a). Specifically, it refers to subsections
(a)(1), (a)(2)(A), (a)(2)(B), and (a)(2)(C).4
[5] Additionally, at various points in the sentencing hear-
ing, the district court explicitly noted that it had considered
Stoterau’s arguments. The court also imposed a sentence
within Stoterau’s indicated Guidelines range. See Carty, 2008
WL 763770, at *7-8 (noting that, except in an unusual or
complex case, a district court need not provide much explana-
tion for a within-Guidelines sentence). In sum, the record
makes clear that the district court considered the evidence and
arguments of the defendant and based its sentence on an anal-
ysis of the advisory Guidelines range and the provisions of 18
U.S.C. § 3553(a). See Rita, 127 S. Ct. at 2469. Therefore, we
conclude that the district court did not commit procedural
4
18 U.S.C. § 3553(a) provides, in relevant part:
(a) Factors to be considered in imposing a sentence. — The
court shall impose a sentence sufficient, but not greater than nec-
essary, to comply with the purposes set forth in paragraph (2) of
this subsection. The court, in determining the particular sentence
to be imposed, shall consider —
(1) the nature and circumstances of the offense and the his-
tory and characteristics of the defendant;
(2) the need for the sentence imposed —
(A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the
offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the
defendant[.]
UNITED STATES v. STOTERAU 4621
error under Gall and we reject Stoterau’s contentions that the
district court failed to consult the § 3553(a) factors, explain its
sentence in light of those factors, or respond to each of Sto-
terau’s specific, nonfrivolous sentencing arguments. See Gall,
128 S. Ct. at 597; Carty, 2008 WL 763770, at *5.
Stoterau also claims that his term of imprisonment is sub-
stantively unreasonable. He advances three principal argu-
ments in support of this claim.
First, Stoterau argues that his sentence is unreasonable
because it overstates his criminal history. Stoterau’s argument
relies on one of the convictions used to calculate his criminal
history score. In 2003, Stoterau admitted to being under the
influence of a controlled substance, in violation of Cal. Health
& Safety Code § 11550(a). Stoterau resolved this case by suc-
cessfully entering and completing a diversionary disposition
pursuant to Cal. Penal Code §§ 1000-1000.9 (permitting per-
sons accused of specified crimes to enter into various rehabili-
tation programs in lieu of trial). Although Stoterau’s
successful completion of this diversionary program meant that
his offense was “deemed to have never occurred” as a matter
of state law, Cal. Penal Code § 1000.4(a), the United States
Sentencing Guidelines nevertheless count diversionary dispo-
sitions as part of a defendant’s criminal history score.
U.S.S.G. § 4A1.2(f).
Stoterau asserts that it was unfair for the district court to
count this conviction because he could have disposed of his
prior conviction by seeking to have it expunged under Cal.
Penal Code § 1203.4 (where a convicted defendant has met
specified conditions, the court may release the defendant
“from all penalties and disabilities resulting from the offense
of which he or she has been convicted” with certain excep-
tions). Stoterau argues that had he successfully sought
expungement, his 2003 offense would not have counted for
purposes of his criminal history because “[s]entences for
4622 UNITED STATES v. STOTERAU
expunged convictions are not counted” under the Guidelines.
U.S.S.G. § 4A1.2(j).
[6] This argument misses the mark because convictions set
aside pursuant to Cal. Penal Code § 1203.4 are not “ex-
punged” for purposes of U.S.S.G. § 4A1.2(j). United States v.
Hayden, 255 F.3d 768, 774 (9th Cir. 2001). Therefore, even
if Stoterau had successfully sought to resolve his 2003 case
under Cal. Penal Code § 1203.4, rather than § 1000.4(a), it
would have nevertheless counted for purposes of his criminal
history score. Accordingly, the district court was reasonable
in counting the 2003 case as part of Stoterau’s criminal his-
tory score.
Second, Stoterau contends that his sentence was unreason-
able because his base offense level included duplicative
enhancements. He argues that his base offense level was
enhanced multiple times for the same underlying criminal act,
namely, putting Doe’s photo on the website. Stoterau misun-
derstands the nature of our double counting doctrine. “Imper-
missible double counting occurs when one part of the
Guidelines is applied to increase a defendant’s punishment on
account of a kind of harm that has already been fully
accounted for by application of another part of the Guide-
lines.” United States v. Holt, 510 F.3d 1007, 1011 (9th Cir.
2007). “However, [d]ouble counting is not always impermis-
sible; it is sometimes authorized and intended by the Sentenc-
ing Guidelines when each invocation of the behavior serves
a unique purpose under the Guidelines.” Id. (internal quota-
tion marks omitted) (alteration in original).
[7] Here, each of Stoterau’s enhancements served a “unique
purpose under the Guidelines,” and accounted for a different
aspect of the harms caused by Stoterau’s criminal act. As
explained in the PSR, the Guidelines directed three separate
increases in Stoterau’s base offense level for three different
reasons: first, because Stoterau’s offense conduct involved
enticing a minor to engage in sexually explicit conduct for the
UNITED STATES v. STOTERAU 4623
purpose of producing a visual depiction of such conduct, see
U.S.S.G. § 2G2.2 cmt. n.5(A); second, because his offense
included the sexual acts undertaken between Doe and the
rentboy.com customers, see U.S.S.G. § 2G2.1(b)(2)(A); and
finally, because he distributed Doe’s photos over the Internet
to the rentboy.com website, see U.S.S.G. § 2G2.1 cmt. n.1.
Each of these enhancements accounted for a different aspect
of Stoterau’s offense and were separately authorized and
intended by the Guidelines. Accordingly, Stoterau’s sentence
was not unreasonable by virtue of duplicative enhancements
or impermissible double counting.
Finally, Stoterau contends that his circumstances are spe-
cial; he points to the abuse he suffered as a child, his mental
health issues, and his life-long struggle with methamphet-
amine addiction. Stoterau claims that these mitigating consid-
erations render his overall sentence unreasonable. See 18
U.S.C. § 3553(a)(1). This argument too is unpersuasive. Sto-
terau sexually exploited a 14-year-old boy for profit. The dis-
trict court reasonably concluded that Stoterau’s 151-month
sentence was necessary to reflect the seriousness of the
offense, promote respect for the law, and to provide adequate
deterrence for this type of criminal conduct. See 18 U.S.C.
§ 3553(a). Moreover, this sentence was at the low-end of Sto-
terau’s Guidelines range. While we do not apply an appellate
presumption of reasonableness to a within-Guidelines sen-
tence, Carty, 2008 WL 763770, at *6, we recognize that
“ ‘when the judge’s discretionary decision accords with the
Commission’s view of the appropriate application of
§ 3553(a) in the mine run of cases, it is probable that the sen-
tence is reasonable.’ ” Id. (quoting Rita, 127 S. Ct. at 2465).
[8] To the extent that Stoterau raises extenuating circum-
stances relevant under 18 U.S.C. § 3553(a)(1), we do not con-
sider those circumstances so special as to render Stoterau’s
overall sentence unreasonable. See Carty, 2008 WL 763770,
at *8 (noting that the defendant’s circumstances were insuffi-
ciently unusual to compel a lower sentence than the low-end
4624 UNITED STATES v. STOTERAU
of the Guidelines range). Evaluating the record in light of the
totality of the circumstances, we conclude that the district
court did not abuse its discretion in sentencing Stoterau to a
term of imprisonment of 151 months. See Gall, 128 S. Ct. at
597.
IV
Stoterau challenges eight of the special conditions of his
five-year term of supervised release. We review the district
court’s decision to impose conditions of supervised release for
abuse of discretion. United States v. Weber, 451 F.3d 552,
557 (9th Cir. 2006) In applying this standard of review, “we
give considerable deference to a district court’s determination
of the appropriate supervised release conditions,” recognizing
that “a district court has at its disposal all of the evidence, its
own impressions of a defendant, and wide latitude.” Id. (inter-
nal quotation marks omitted).
The principal statutory provision that constrains the district
court’s discretion to impose conditions of supervised release
is 18 U.S.C. § 3583(d).5 Under this subsection, district courts
5
In relevant part, 18 U.S.C. § 3583(d) authorizes district courts to
impose any condition they deem appropriate, so long as the condition:
(1) is reasonably related to the factors set forth in section
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 section 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) incorporates by reference the following provisions of
18 U.S.C. § 3553(a):
(1) the nature and circumstances of the offense and the history
and characteristics of the defendant;
(2) the need for the sentence imposed —
UNITED STATES v. STOTERAU 4625
may impose conditions “if they are reasonably related to the
goal of deterrence, protection of the public, or rehabilitation
of the offender, and involve no greater deprivation of liberty
than is reasonably necessary for the purposes of supervised
release.” United States v. Rearden, 349 F.3d 608, 618 (9th
Cir. 2003) (internal quotation marks omitted). The govern-
ment must carry the burden of demonstrating that these statu-
tory standards are met. Weber, 451 F.3d at 558.
A
[9] Condition 11 states that, “[t]he defendant shall not
access via computer any material that relates to pornography
of any kind.” Stoterau argues that the word “pornography” is
too vague to put him on notice of what material is prohibited.
We have previously held in the supervised release context that
the word “pornography,” without more, is too vague to put the
defendant on notice of “what conduct will result in his being
returned to prison.” United States v. Guagliardo, 278 F.3d
868, 872 (9th Cir. 2002). We explained:
Reasonable minds can differ greatly about what is
encompassed by ‘pornography.’ Given this inherent
vagueness, Guagliardo cannot determine how
broadly his condition will extend. Further, we cannot
determine whether the condition is otherwise reason-
able under 18 U.S.C. § 3583(d).
Id.
...
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defen-
dant; and
(D) to provide the defendant with needed educational or
vocational training, medical care, or other correctional treat-
ment in the most effective manner[.]
4626 UNITED STATES v. STOTERAU
[10] Like the challenged condition in Guagliardo, Condi-
tion 11 here leaves Stoterau “in the untenable position of dis-
covering the meaning of his supervised release condition only
under continual threat of reimprisonment, in sequential hear-
ings before the court.” Id. (internal quotation marks omitted).
Accordingly, following Guagliardo, we vacate this condition
and remand for the district court to impose a condition with
greater specificity.
B
Condition 12 states:
The defendant shall participate in a psychological or
psychiatric counseling program and/or a sex offender
treatment program, which may include inpatient
treatment, as approved and directed by the probation
officer. The defendant shall abide by all rules,
requirements, and conditions of such program,
including submission to risk assessment, evaluations
and psychological[6] testing, such as polygraph, and
Abel testing.
Stoterau raises two principal objections to this condition.7
6
In this case, there is a discrepancy between the court’s pronouncement
of Condition 12 at the sentencing hearing and in the written judgment. At
the sentencing hearing, the district court used the word “psychological”;
the judgment, however, uses the word “physiological.” “When there is a
discrepancy between an unambiguous oral pronouncement of a sentence
and the written judgment, the oral pronouncement controls.” United States
v. Fifield, 432 F.3d 1056, 1059 n.3 (9th Cir. 2005). We therefore give
legal effect to the word “psychological,” as used by the district court in
its oral pronouncement of sentence. In this case, however, the difference
between “psychological” and “physiological” is immaterial to the question
presented here on appeal, namely, whether the district court abused its dis-
cretion in imposing polygraph and Abel testing. Regardless of whether the
word “psychological” or “physiological” is used, Condition 12 unambigu-
ously specifies that Stoterau must submit to polygraph and Abel testing.
7
Stoterau cursorily raises a number of other challenges to this condition.
He asserts that the polygraph requirement violates his Sixth Amendment
UNITED STATES v. STOTERAU 4627
First, he argues that mandatory polygraph testing violates his
Fifth Amendment right not to be “compelled in any criminal
case to be a witness against himself.” U.S. Const. amend. V.
Second, Stoterau claims that the requirement that he submit
to Abel testing violates his due process rights and the require-
ments of 18 U.S.C. § 3583(d). We address these arguments in
turn.
[11] First, the polygraph prong of Condition 12 does not
infringe on Stoterau’s Fifth Amendment rights because Sto-
terau will retain these rights during his polygraph exams. “[A]
district court may require, as a term of supervised release, that
a defendant submit to polygraph testing, provided such a con-
dition comports with the requirements of § 3583(d), but a
defendant retains his Fifth Amendment rights during any such
testing.” Weber, 451 F.3d at 568 n.17. See also United States
v. Antelope, 395 F.3d 1128, 1134-41 (9th Cir. 2005); United
States v. Lee, 315 F.3d 206, 212-13 (3d Cir. 2003) (upholding
a condition requiring the defendant to submit to random poly-
graph examination, because “the condition does not require
[the defendant] to answer incriminating questions. . . . Thus,
if a question is asked during the polygraph examination which
calls for an answer that would incriminate [the defendant] in
a future criminal proceeding, [the defendant] retains the right
to invoke his Fifth Amendment privilege and remain silent”).
Therefore, if Stoterau receives a question during his poly-
graph exam which calls for him to provide an answer that
would incriminate him in a future criminal proceeding, Sto-
terau retains the right to invoke his Fifth Amendment privi-
rights and that it is constitutionally overbroad and vague. He also contends
that the district court violated the Constitution when it delegated to the
probation officer the power to determine whether Stoterau is obliged to
participate in outpatient or inpatient treatment. These contentions are gen-
eral, mentioned only in passing, and are unsupported by meaningful argu-
ment. Accordingly, they are waived. See Fed. R. App. P. 28(a)(9);
Ghahremani v. Gonzales, 498 F.3d 993, 997 (9th Cir. 2007); United States
v. Kimble, 107 F.3d 712, 715 n.2 (9th Cir. 1997).
4628 UNITED STATES v. STOTERAU
lege and remain silent. Should the government desire Stoterau
to answer, it may afford his answers the protection of use and
derivative use immunity. See Antelope, 395 F.3d at 1141 &
n.5.
Stoterau argues that the polygraph prong of Condition 12
violates his constitutional rights for another reason, namely,
that a polygraph examination is akin to custodial interroga-
tion, and that therefore he would be entitled to Miranda warn-
ings before the exam. See Miranda v. Arizona, 384 U.S. 436,
444 (1966).
[12] This argument fails because the polygraph examina-
tions required by Condition 12 do not constitute custodial
interrogation. In Minnesota v. Murphy, 465 U.S. 420, 430 &
n.5 (1984), the Supreme Court determined that Miranda
warnings are unnecessary in the context of probation inter-
views, where defendants are “not under arrest and [are] free
to leave at the end of the meeting.” Although “the probation
officer could compel [the defendant’s] attendance and truthful
answers,” such compulsion did not transform the probation
interview “into an inherently coercive setting” akin to “formal
arrest” or a “restraint on freedom of movement of the degree
associated with a formal arrest.” Id. at 430-31 (internal quota-
tion marks omitted). In short, the Court concluded, “the gen-
eral obligation to appear and answer questions truthfully”
does not constitute a custodial interrogation for purposes of
Miranda. Id. at 427.
[13] The logic of Murphy applies with equal force in the
present context. Condition 12 imposes polygraph testing as
part of Stoterau’s “psychological or psychiatric counseling
program and/or . . . sex offender treatment program.” There-
fore, Stoterau will not be under arrest during these tests, and
the temporary restrictions on his liberty are far less than if he
were under arrest. To comply with Condition 12, Stoterau
must only appear and answer questions truthfully. To the
extent that the presence of the polygraph machinery increases
UNITED STATES v. STOTERAU 4629
the coercive atmosphere of the interview, we conclude that
the environment remains more akin to a probation interview
than an interrogation in police custody. See Lee, 315 F.3d at
211-12. Therefore, Stoterau is not entitled to receive Miranda
warnings before undergoing polygraph examination pursuant
to Condition 12 of his supervised release.
Stoterau’s second challenge to Condition 12 pertains to
Abel testing. Abel testing is a diagnostic exam for sex offend-
ers that studies “visual reaction time.” United States v. Birds-
bill, 243 F. Supp. 2d 1128, 1131 n.3 (D. Mont. 2003). In Abel
testing:
A test subject is asked to view slides of clothed per-
sons of varying age and sex for the purpose of rating
sexual attractiveness on a paper-and-pencil question-
naire. The subject is supposed to think that the
paper-and-pencil test is the actual test, but the criti-
cal portion of the test calculates how long the subject
gazes at the slide. It is this measure of [visual reac-
tion time] that is used to determine the subject’s sex-
ual interest in the various categories of adults and
children shown in the slides.
Id. Stoterau raises two principal objections to the Abel testing
requirement in Condition 12. First, he argues that the district
court’s failure to articulate on the record at sentencing its rea-
sons for imposing the Abel testing condition violated his due
process rights. Second, Stoterau argues that the imposition of
Abel testing violates 18 U.S.C. § 3583(d)(1) because the test-
ing is too unreliable to be “reasonably related” to the goals of
supervised release.
In considering Stoterau’s due process claim, we begin with
the general rule that district courts are not required to “articu-
late on the record at sentencing the reasons for imposing each
condition.” Rearden, 349 F.3d at 619; see also United States
v. Betts, 511 F.3d 872, 876 (9th Cir. 2007). We have carved
4630 UNITED STATES v. STOTERAU
out an exception to this general rule for conditions of super-
vised release that implicate a particularly significant liberty
interest. Weber, 451 F.3d at 560-61. Where such a particularly
significant liberty interest is at stake, the district court must
follow additional procedures and make special findings. Id. at
561; United States v. Williams, 356 F.3d 1045, 1053 (9th Cir.
2004). Specifically, the district court “must support its deci-
sion [to impose the condition] on the record with record evi-
dence 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.” Weber, 451 F.3d at 561
(internal quotation marks omitted).
We have identified three conditions of supervised release
that implicate particularly significant liberty interests. In Wil-
liams, 356 F.3d at 1055, we determined that a condition of
supervised release “compelling a person to take antipsychotic
medication is an especially grave infringement of liberty” and
thus warranted a departure from the usual rule that district
courts need not articulate their reasons for imposing super-
vised release conditions. In Weber, we applied this heightened
procedural requirement to a condition of supervised release
which mandated penile plethysmograph testing.8 451 F.3d at
563. Finally, in United States v. Cope, 506 F.3d 908, 919 n.5
(9th Cir. 2007), we suggested in passing that “[w]e have no
doubt that chemical castration would, if prescribed against the
will of a defendant on supervised release, implicate a particu-
larly significant liberty interest.”
The relevant liberty interest impinged upon by these testing
procedures and medicines is the “constitutional interest inher-
8
Penile plethysmography is a testing procedure that “involves placing a
pressure-sensitive device around a man’s penis, presenting him with an
array of sexually stimulating images, and determining his level of sexual
attraction by measuring minute changes in his erectile responses.” Weber,
451 F.3d at 554 (internal quotation marks omitted).
UNITED STATES v. STOTERAU 4631
ent in avoiding unwanted bodily intrusions or manipulations.”
Weber, 451 F.3d at 563 (internal quotation marks omitted);
see also Williams, 356 F.3d at 1054 (noting that the potential
for serious negative side effects is also germane to the analy-
sis of whether a condition implicates a particularly significant
liberty interest).
Abel testing does not involve any manipulations or intru-
sions akin to those involved in penile plethysmography, antip-
sychotic medication, or chemical castration.9 As noted above,
Abel testing involves showing subjects a series of slides and
monitoring the amount of time they attend to each slide.
Weber, 451 F.3d at 567. Unlike antipsychotics or chemical
castration, Abel testing does not “interfere[ ] with mental pro-
cesses [or] alter[ ] behavior.” Cope, 506 F.3d at 919 n.5.
Unlike penile plethysmography, Abel testing does not require
the test subject to disrobe and does not “involve the minute
monitoring of changes in the size and shape of a person’s gen-
italia.” Weber, 451 F.3d at 563. Indeed, in Weber, we noted
that Abel testing is “much less intrusive into the body and
somewhat less intrusive into the mind of a defendant than
plethysmograph testing.” 451 F.3d at 567. And in Cope, we
described Abel testing as a “far less intrusive procedure” than
penile plethysmography. 506 F.3d at 913 n.1.
[14] Like polygraph testing, Abel testing uses physiological
data to draw rough inferences about the contents of a subject’s
thoughts. To the extent this is an intrusion into the mind, see
9
Although we have had occasion to discuss Abel testing before, we have
not yet determined whether it implicates a particularly significant liberty
interest. In Weber, we discussed Abel testing “to point out the existence
of a less intrusive alternative to plethysmograph testing.” 451 F.3d at 568.
However, “we [did] not set forth any opinion as to [Abel testing’s] propri-
ety in this, or any other case.” Id. In Cope, we upheld a sex offender treat-
ment condition that included Abel testing against the charge that the
condition was overbroad. 506 F.3d at 920. Like Weber, Cope did not
decide whether Abel testing implicates a particularly significant liberty
interest.
4632 UNITED STATES v. STOTERAU
Weber, 451 F.3d at 567, it is not the type of intrusion which
“tinker[s] with the mental processes,” Williams, 356 F.3d at
1054 (internal quotation marks omitted). It is different in kind
from the intrusions associated with penile plethysmography,
chemical castration, and antipsychotic medication. Accord-
ingly, we conclude that Abel testing does not implicate a par-
ticularly significant liberty interest, and thus does not require
the district court to make the heightened findings required by
Williams and Weber.
Stoterau also argues that Abel testing is too unreliable to be
reasonably related to the goals of supervised release under 18
U.S.C. § 3583(d). Stoterau principally relies on United States
v. Birdsbill, 243 F. Supp. 2d 1128. In that case, the district
court considered whether Abel testing was sufficiently reli-
able to be admissible under the evidentiary standard for scien-
tific testimony articulated in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993). Birdsbill, 243 F.
Supp. 2d at 1132-36. Expressing concern that Abel testing
could be subject to faking, id. at 1135-36, the court stated that
the “known or potential error rate of [Abel testing] varies
from poor . . . to appalling.” Id. at 1135. The court also
explained that the reliability of Abel testing was difficult to
evaluate because “there have been no independent studies
conducted for the purpose of verifying the theory underlying
[Abel testing].” Id. Indeed, the court noted that “there is a fun-
damental problem in any attempt to replicate or verify the
validity of [Abel testing] because the formula used . . . is pro-
prietary information.” Id. at 1133. The creator of Abel testing
“testified that he does not share his formula with anyone out-
side his company.” Id. Ultimately, the district court concluded
that Abel testing was insufficiently reliable to satisfy the Dau-
bert standard. Id. at 1136.
[15] Even if we were to agree with Birdsbill’s conclusion
that Abel testing is too unreliable to be admissible as evidence
under the Daubert standard, such a conclusion would not
answer the question in this case: whether such testing can be
UNITED STATES v. STOTERAU 4633
used as a potential treatment tool for supervised release. Cf.
United States v. Dotson, 324 F.3d 256, 261 (4th Cir. 2003)
(the polygraph test is generally inadmissible at trial, but it
may be used as a treatment tool upon an offender’s release
from prison); see also United States v. Johnson, 446 F.3d 272,
278 (2d Cir. 2006) (“[P]olygraph results are inadmissible as
evidence. But that does not much bear on the therapeutic
value of the tool . . . .”). Under Daubert, a court must deter-
mine that proposed scientific testimony is both reliable and
relevant. 509 U.S. at 597. However, a condition of supervised
release need only be “reasonably related to the goal of deter-
rence, protection of the public, or rehabilitation of the
offender, and involve no greater deprivation of liberty than is
reasonably necessary.” Rearden, 349 F.3d at 618 (internal
quotation marks omitted). The district court could reasonably
conclude that the Abel test has value in rehabilitation and pro-
tection of the public as part of a treatment program for assess-
ing a sex offender’s interest in children. See Weber, 451 F.3d
at 567 (noting that “[o]ne researcher . . . has deemed Abel
testing to be a ‘promising development’ ”); see also Birdsbill,
243 F. Supp. 2d at 1135 (noting another study concluding that
the “ ‘Abel Assessment has promise and deserves to be tried
in the field’ ”) (quoting Richard B. Krueger, John M. W.
Bradford, and Graham D. Glancy, The Abel Assessment for
Sexual Interest - A Brief Description, 26 J. Am. Acad. Psychi-
atry Law 279 (1998)). Accordingly, we conclude that the dis-
trict court did not abuse its discretion in imposing Abel testing
as part of Condition 12.
C
[16] Condition 13 states:
As directed by the Probation Officer, the defendant
shall pay all or part of the costs of treating the defen-
dant’s psychological or psychiatric disorder and/or
sex offender treatment to the aftercare contractor
during the period of community supervision, pursu-
4634 UNITED STATES v. STOTERAU
ant to 18 U.S.C. § 3672. The defendant shall provide
payment and proof of payment as directed by the
Probation Officer.
Stoterau argues that this condition violates § 3672, which in
his view entrusts the district court with a non-delegable power
to make the defendant pay for the costs of his treatment as
part of his supervised release.10 Therefore, Stoterau reasons,
the district court abused its discretion in delegating that power
to the probation officer. Stoterau did not object to the imposi-
tion of this condition before the district court, and we there-
fore review it for plain error. See United States v. Ortiz, 362
F.3d 1274, 1278 (9th Cir. 2004). We have previously held that
district courts do not abuse their discretion when they impose
conditions of supervised release that delegate to the probation
officer the power to direct the defendant to pay some or all of
the costs of treatment. See United States v. Soltero, 510 F.3d
858, 864 (9th Cir. 2007); see also United States v. Dupas, 419
F.3d 916, 924 (9th Cir. 2005) (rejecting the same challenge on
plain error review). Following Soltero and Dupas, we con-
clude that the district court did not plainly err in imposing this
condition as part of Stoterau’s term of supervised release.
D
Condition 15 states: “The defendant shall not own, use, or
have access to the services of any commercial mail-receiving
agency. Nor shall he open or maintain a post office box with-
out the prior written approval of the Probation Officer.” Sto-
terau argues that this condition is not reasonably related to the
goals of supervised release specified in 18 U.S.C. § 3583(d).
10
18 U.S.C. § 3672 details the “Duties of Director of Administrative
Office of the United States Courts.” In relevant part, it provides:
Whenever the court finds that funds are available for payment by
or on behalf of a person furnished [rehabilitative] services, train-
ing, or guidance, the court may direct that such funds be paid to
the Director.”
UNITED STATES v. STOTERAU 4635
In particular, he argues that nothing in the record ties his
crime to the use of the mail.
[17] Supervised release conditions need not relate to the
offense for which the defendant was convicted as long as they
satisfy the requirements of 18 U.S.C. § 3583(d). United States
v. T.M., 330 F.3d 1235, 1240 (9th Cir. 2003). Condition 15
meets the criteria set forth in 18 U.S.C. § 3583(d) for permis-
sible conditions of supervised release. First, it is reasonably
related to the goal of specific deterrence. 18 U.S.C.
§ 3583(d)(1). The mail and the Internet are both channels for
the transmission of child pornography. See, e.g., United States
v. Fellows, 157 F.3d 1197, 1199 (9th Cir. 1998) (defendant
received child pornography through the mail and through the
Internet). Commercial mail services allow customers to
receive mail at non-residential locations. So do post office
boxes. It is reasonable to infer that people may choose to
receive mail at non-residential locations when they are
attempting to conceal their identity. Second, this condition
does not impose a “greater deprivation of liberty than is rea-
sonably necessary” as required by § 3583(d)(2), because Sto-
terau will still have unencumbered access to the mail through
his residential address and has the option of utilizing a P.O.
box with prior approval from his probation officer. Accord-
ingly, the district court did not abuse its discretion in impos-
ing this condition.
E
Condition 17 states:
The defendant shall not associate or have verbal,
written, telephonic, or electronic communication
with any person under the age of 18, except: a) in the
presence of the parent or legal guardian of said
minor; and b) on the condition that the defendant
notify said parent or legal guardian of his conviction
in the instant offense.
4636 UNITED STATES v. STOTERAU
Stoterau argues that the notification prong of this condition is
unnecessary, given the required presence of the parent during
any and all allowed communications.
[18] We have previously upheld a condition which ordered
a sex offender to “not have contact with children under the
age of 18 unless approved by [his] probation officer.” United
States v. Bee, 162 F.3d 1232, 1235 (9th Cir. 1998) (internal
quotation marks omitted) (alteration in original). Like the
condition in Bee, Condition 17 comports with the require-
ments of 18 U.S.C. § 3583(d) because it promotes Stoterau’s
rehabilitation, deters him from committing future crimes, and
protects the public. Moreover, contrary to Stoterau’s asser-
tion, the notification prong of Condition 17 is reasonably
related to the goals of supervised release. Parents may watch
their children more closely depending on the company they
keep. The notification prong of Condition 17 enables parents
to exercise the appropriate level of vigilance in monitoring
interactions between their children and Stoterau. Because the
notification requirement alerts parents to a possible threat, it
is reasonably related to the goals of rehabilitation, deterrence,
and protection of the public pursuant to 18 U.S.C. § 3583(d).
F
Condition 18 states that “[t]he defendant shall not affiliate
with, own, control, volunteer or be employed in any capacity
by any business or organization that causes him to regularly
contact persons under the age of 18.” Condition 19 provides
that “[t]he defendant shall not affiliate with, own, control, or
be employed in any capacity by any business whose principal
product is the production or selling of materials depicting or
describing ‘sexually explicit conduct’ as defined at 18 U.S.C.
§ 2256(2).”11 Stoterau objects to the effect these conditions
will have on his choice of future occupations.
11
The general definition of “sexually explicit conduct” under 18 U.S.C.
§ 2256(2) is:
UNITED STATES v. STOTERAU 4637
[19] Like other special conditions, occupational restrictions
must comport with the requirements of 18 U.S.C. § 3583(d).
In addition, the Guidelines provide for heightened scrutiny of
occupational restrictions which impinge upon a defendant’s
“specified occupation, business, or profession.” U.S.S.G.
§ 5F1.5.
We have previously indicated that a “specified occupation”
as used in § 5F1.5 refers to the defendant’s profession or
occupation prior to the instant conviction. See Rearden, 349
F.3d at 622 (explaining that § 5F1.5 was not triggered because
the restriction did not prohibit the defendant from working “in
his previous profession as an art director or set decorator”);
see also United States v. Paul, 274 F.3d 155, 171 n. 18 (5th
Cir. 2001) (holding that if the defendant’s “primary means of
supporting himself” were involved, then he would be entitled
to the higher level of scrutiny for occupational restrictions
under § 5F1.5).
[20] Moreover, the plain text of § 5F1.5 supports the inter-
pretation that the provision applies only to restrictions on the
specific occupation or occupations held by the defendant prior
to conviction. In order to impose a restriction pursuant to
§ 5F1.5, the court must determine that a “reasonably direct
relationship existed between the defendant’s occupation . . .
and the conduct relevant to the offense of conviction.”
actual or simulated —
(i) sexual intercourse, including genital-genital, oral-
genital, anal-genital, or oral-anal, whether between persons
of the same or opposite sex;
(ii) bestiality;
(iii) masturbation;
(iv) sadistic or masochistic abuse; or
(v) lascivious exhibition of the genitals or pubic area of
any person[.]
4638 UNITED STATES v. STOTERAU
U.S.S.G. § 5F1.5(a)(1). The reference to “the defendant’s
occupation” indicates that a district court must consider the
specific occupation or occupations held by the defendant sub-
ject to the sentencing proceeding, rather than speculate about
the range of options for employment that might be available
to the defendant in the future. We therefore conclude that
§ 5F1.5 applies only to the “specified occupation, business, or
profession” held by the defendant prior to conviction.
[21] U.S.S.G. § 5F1.5 is not applicable here. The PSR
described Stoterau’s numerous unspecified brief periods of
employment in the customer service field beginning in 1997
and continuing until 2001. The PSR also reported Stoterau’s
work as a singer and indicated that he previously toured with
the group “Up With People” from 1998 to 1999. Because Sto-
terau was not in the business of producing depictions or
descriptions of sexually explicit conduct, the condition pro-
hibiting him from working in this area does not qualify as an
occupational restriction under § 5F1.5. See Rearden, 349 F.3d
at 622. Likewise, the record does not indicate that Stoterau
ever pursued an occupation which brought him into regular
contact with minors. Accordingly, the condition prohibiting
Stoterau from working in such an environment does not
amount to an occupational restriction under § 5F1.5. See id.
Because § 5F1.5 is not applicable, the district court was not
obliged to make the findings required by that section.
[22] We next consider Stoterau’s claims that Condition 18
violates 18 U.S.C. § 3583(d) and is overbroad. Like Condition
17, Condition 18 limits Stoterau’s interactions with minors in
order to forestall the possibility that he will offend again.
Given the predatory nature of Stoterau’s offense conduct,
such limitations are reasonably related to the goals of deter-
rence, rehabilitation, and protection of the public. 18 U.S.C.
§ 3583(d)(1). Nor does Condition 18 impose a “greater depri-
vation of liberty than is reasonably necessary” to further these
goals. 18 U.S.C. § 3583(d)(2). Stoterau is not precluded from
resuming his work as a singer or a customer service represen-
UNITED STATES v. STOTERAU 4639
tative, so long as he does not do so in environments which
regularly include minors. For much the same reasons, we con-
clude that Condition 18 is not overbroad. “[E]ven very broad
conditions are reasonable if they are intended to promote the
probationer’s rehabilitation and to protect the public.” Bee,
162 F.3d at 1236. Condition 18 meets these goals. Moreover,
we upheld a condition of similar breadth in Bee. Id. at 1235
(directing a defendant, who had sexually abused a minor, not
to “have contact with children under the age of 18 unless
approved by [his] probation officer”) (internal quotation
marks omitted) (alteration in original). Accordingly, we con-
clude that Condition 18 is consistent with § 3583(d) and not
overbroad.
A similar analysis leads to the conclusion that Condition 19
is consistent with § 3583(d) and reasonable in breadth. We
have previously held that a defendant’s access to sexually
explicit materials may be restricted in order to reasonably fur-
ther the goals of supervised release. In Bee, we affirmed the
district court’s imposition of a condition prohibiting the pos-
session of sexually explicit material in a case where the defen-
dant was convicted of sexual abuse of a minor. Id. In
Rearden, a case concerning a defendant convicted of shipping
child pornography, we concluded that the district court “did
not plainly err in limiting [the defendant’s] possession of
materials depicting sexually explicit conduct because the con-
dition furthered the goals of rehabilitating him and protecting
the public.” 349 F.3d at 620. Condition 19 is similarly consis-
tent with the requirements of 18 U.S.C. § 3583(d). By limiting
Stoterau’s exposure to materials depicting sexually explicit
conduct, this condition decreases the likelihood that Stoterau
will commit a similar sex offense in the future.
Stoterau also contends that Condition 19 is overbroad
because it would prevent him from working for businesses
that produce legal adult pornography as well as non-
pornographic materials which include depictions or descrip-
tions of simulated sexual acts or nudity. We reject this over-
4640 UNITED STATES v. STOTERAU
breadth argument, given our conclusion that Condition 19
meets the goals of § 3583. See Bee, 162 F.3d at 1236. More-
over, our precedent forecloses Stoterau’s argument that the
phrase “sexually explicit conduct” is vague and overbroad. In
Rearden, 349 F.3d at 620, we concluded that the district court
did not plainly err in imposing a special condition that the
defendant not possess any materials depicting sexually
explicit conduct as defined in 18 U.S.C. § 2256(2), notwith-
standing the defendant’s contentions that the condition was
vague and overbroad. And in Antelope, 395 F.3d at 1142, we
noted that the condition imposed in Rearden “passed constitu-
tional muster.”
[23] In sum, we conclude the district court did not abuse its
discretion in imposing Condition 18 and Condition 19. They
do not trigger the heightened findings required by U.S.S.G.
§ 5F1.5, they comport with the requirements of 18 U.S.C.
§ 3583(d), and they are not overbroad.
G
Stoterau challenges the district court’s authorization of the
Probation Officer “to disclose the Presentence Report and/or
any previous mental health evaluations or reports to the treat-
ment provider.” The court further allowed that “[t]he treat-
ment provider may provide information, excluding the
Presentence Report, to State or local social service agencies,
such as the California Department of Social Services, for the
purpose of the defendant’s rehabilitation.”
[24] Stoterau contends that this authorization violates the
psychotherapist-patient privilege recognized in Jaffee v. Red-
mond, 518 U.S. 1, 15 (1996) (holding that “confidential com-
munications between a licensed psychotherapist and her
patients in the course of diagnosis or treatment are protected
from compelled disclosure under Rule 501 of the Federal
Rules of Evidence”). Stoterau’s claim is foreclosed by United
States v. Lopez, 258 F.3d 1053, 1057 (9th Cir. 2001), where
UNITED STATES v. STOTERAU 4641
we explained that the psychotherapist-patient evidentiary
privilege is “beside the point of a supervised release condi-
tion.” The district court could reasonably conclude that the
limited disclosure of Stoterau’s PSR and mental health evalu-
ations was necessary to facilitate his treatment and success-
fully monitor his reintegration into society following his
release from prison. See id. Accordingly, the district court did
not abuse its discretion in authorizing the limited disclosure
of Stoterau’s PSR and mental health records.
V
Stoterau next argues that the district court violated Rule
32(i)(3)(B) of the Federal Rules of Criminal Procedure by
failing to rule on Stoterau’s objection that several paragraphs
of his PSR included facts based on unreliable hearsay. “This
court reviews de novo the district court’s compliance with
Rule 32.” United States v. Herrera-Rojas, 243 F.3d 1139,
1142 (9th Cir. 2001). “If the district court fails to make the
required Rule 32 findings or determinations at the time of sen-
tencing, the sentence must be vacated and the defendant
resentenced.” Id. (internal quotation marks omitted).
Rule 32(i)(3)(B) provides that at sentencing a court “must
— for any disputed portion of the presentence report or other
controverted matter — rule on the dispute or determine that
a ruling is unnecessary either because the matter will not
affect sentencing, or because the court will not consider the
matter in sentencing.” Only specific factual objections trigger
Rule 32(i)(3)(B). See United States v. Saeteurn, 504 F.3d
1175, 1181 (9th Cir. 2007) (holding that Rule 32(i)(3)(B) “is
limited to factual disputes which affect the temporal term of
the sentence the district court imposes”); United States v.
Lindholm, 24 F.3d 1078, 1085 n.7 (9th Cir. 1994) (holding
that Rule 32(c)(3)(D), Rule 32(i)(3)(B)’s predecessor, “only
4642 UNITED STATES v. STOTERAU
applies to factual inaccuracies, not to recommendations, opin-
ions or conclusions not factual in nature”).12
[25] In his sentencing position memorandum, Stoterau
challenged several paragraphs of his PSR on the ground that
the information gathered from police reports contained multi-
ple levels of unreliable hearsay. Stoterau did not deny that the
police reports contained the information alleged in the PSR or
that the information was factually inaccurate. Instead, he
argued that law enforcement reports are not generally a reli-
able source of accurate information. This challenge is not a
specific factual dispute about issues affecting the temporal
term of sentence but rather a general evidentiary legal chal-
lenge to the inclusion of information in the PSR drawn from
sources other than the plea agreement. Accordingly, the dis-
trict court did not violate Rule 32(i)(3)(B) by not ruling on
Stoterau’s objection.
VI
Stoterau filed a motion requesting that this disposition be
filed under seal, or, in the alternative, that a pseudonym be
used in place of his name. Stoterau argues that the dissemina-
tion of information regarding the nature of his offense could
endanger his personal safety in prison.
[26] “While we deliberate in private, we recognize the fun-
damental importance of issuing public decisions after public
arguments based on public records.” Doe v. United States
(Doe I), 253 F.3d 256, 262 (6th Cir. 2001) (internal quotation
marks omitted). Accordingly, “[a]ny step that withdraws an
element of the judicial process from public view makes the
ensuing decision look more like fiat, which requires compel-
12
Rule 32(i)(3)(B) is a narrower version of its predecessor, Rule
32(c)(3)(D). “The Advisory Committee amended the Rule in part to make
clear that the rule applies only to factual disputes which affect the tempo-
ral term of sentence.” Saeteurn, 504 F.3d at 1179 n.10.
UNITED STATES v. STOTERAU 4643
ling justification.” Union Oil Co. of Cal. v. Leavell, 220 F.3d
562, 568 (7th Cir. 2000). Beyond his stated interest in con-
cealing his identity, Stoterau does not provide a justification
for his request that this entire disposition be filed under seal.
We therefore deny Stoterau’s motion to file this disposition
under seal. Decisions of this court are a matter of public
record, and the circumstances of Stoterau’s case are not suffi-
ciently exceptional so as to warrant a departure from this gen-
eral rule. See United States v. Mentzos, 462 F.3d 830, 843 n.4
(8th Cir. 2006).
Stoterau’s request for a pseudonym presents a closer ques-
tion. As a general rule, “the identity of the parties in any
action, civil or criminal, should not be concealed except in an
unusual case, where there is a need for the cloak of anonymi-
ty.” United States v. Doe (Doe II), 488 F.3d 1154, 1156 n.1
(9th Cir. 2007); see also United States v. Doe (Doe III), 655
F.2d 920, 922 n.1 (9th Cir. 1981) (granting a request for use
of a pseudonym in an “unusual case” where criminal defen-
dant was a government informant who, the parties agreed,
would have “faced a risk of serious bodily harm if his role on
behalf of the government were disclosed to other inmates”).
In the unusual case, we consider whether pseudonymity is
“necessary to protect a person from injury or harassment.”
Doe II, 488 F.3d at 1156 n.1. We must then “balance the need
for anonymity against the general presumption that parties’
identities are public information.” Does I thru XXIII v.
Advanced Textile Corp., 214 F.3d 1058, 1068 (9th Cir. 2000)
(applying this balancing test to the specific context of a civil
employment retaliation claim).
Stoterau argues that he presents an unusual case in which
there is a need for anonymity because sex offenders such as
Stoterau face an elevated risk of violent abuse in prison. How-
ever, because this concern is equally present for all similarly
situated sex offenders who face prison sentences, we cannot
say that Stoterau’s case is unusual. Indeed, in the sentencing
context, courts have rejected the argument that “mere mem-
4644 UNITED STATES v. STOTERAU
bership in a class of offenders that may be targeted by other
inmates” is sufficient to make a defendant’s case extraordi-
nary. United States v. Kapitzke, 130 F.3d 820, 822 (8th Cir.
1997) (reversing a downward departure for susceptibility to
abuse in prison that was based on the defendant’s status as a
child pornographer); see also United States v. Parish, 308
F.3d 1025, 1032 (9th Cir. 2002) (upholding a departure where
the district court did not rely solely on the defendant’s “mere
membership in a class of offenders”) (internal quotation
marks omitted). Inmates may face a heightened risk of abuse
in prison for a range of reasons (for example, membership in
a gang, membership in an ethnic group, or sexual orientation),13
and it is prison officials who have the primary responsibility
to “take reasonable measures to guarantee the safety of the
inmates” and to “protect prisoners from violence at the hands
of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 832-33
(1994) (internal quotation marks omitted). If the nature of
Stoterau’s offense alone could qualify him for the use of a
pseudonym, there would be no principled basis for denying
pseudonymity to any defendant convicted of a similar sex
offense. Such a significant broadening of the circumstances in
which we have permitted pseudonymity is contrary to our
long-established policy of upholding “the public’s common
law right of access to judicial proceedings,” Does I thru
XXIII, 214 F.3d at 1067, and contrary to our requirement that
pseudonymity be limited to the “unusual case.” Doe II, 488
F.3d at 1156 n.1.
Moreover, Stoterau has not shown that his need for ano-
nymity outweighs “the public’s interest in knowing the
party’s identity.” Does I thru XXIII, 214 F.3d at 1068. We
question the value that pseudonymity would have for Stoterau
at this point. Stoterau’s conviction is a matter of public
13
See, e.g., Wilkinson v. Austin, 545 U.S. 209, 227 (2005) (discussing
the problem of racially-based gang violence in prisons); Farmer v. Bren-
nan, 511 U.S. 825, 829-30 (1994) (considering the case where a transsex-
ual prisoner was sexually and physically abused in prison).
UNITED STATES v. STOTERAU 4645
record, and many of the documents in his case were not sub-
mitted under seal. Therefore, the use of a pseudonym in this
disposition will have limited effect in concealing the fact that
Stoterau was convicted of transporting child pornography. On
the other hand, “[i]dentifying the parties to the proceeding is
an important dimension of publicness. The people have a right
to know who is using their courts.” Doe v. Blue Cross & Blue
Shield United of Wis., 112 F.3d 869, 872 (7th Cir. 1997).
Under these circumstances, the interest “weighing in favor of
open judicial proceedings” outweighs the low value of pseu-
donymity at this point in Stoterau’s proceedings. Does I thru
XXIII, 214 F.3d at 1069.
[27] In sum, our precedents dictate that we grant criminal
defendants a pseudonym only in the “unusual case, where
there is a need for the cloak of anonymity.” Doe II, 488 F.3d
at 1156 n.1 (internal quotation marks omitted). Stoterau has
not succeeded in showing that his case qualifies under this
standard. The concern animating Stoterau’s request for ano-
nymity is equally present for all similarly situated sex offend-
ers, and the value of anonymity to Stoterau at this point in the
proceedings is outweighed by the public interest “weighing in
favor of open judicial proceedings.” Does I thru XXIII, 214
F.3d at 1069. We therefore deny Stoterau’s motion to use a
pseudonym in place of his name.14
VII
In conclusion, we hold that the district court did not err in
applying a two-level enhancement pursuant to U.S.S.G.
§ 2G2.1(b)(2)(A). We hold the district court did not abuse its
discretion in sentencing Stoterau to a 151-month term of
14
We have used the name “John Doe” throughout this opinion as a
pseudonym to protect the identity of the then 14-year-old victim. See
United States v. Cunningham, 405 F.3d 497, 499 n.1 (7th Cir. 2005). Doe
is not a party to this case and we use a pseudonym in deference to his pri-
vacy interests.
4646 UNITED STATES v. STOTERAU
imprisonment. With one exception, we hold that the district
court did not abuse its discretion in imposing certain special
conditions on Stoterau’s term of supervised release. We hold
that the district court was not obliged by Rule 32 of the Fed-
eral Rules of Criminal Procedure to rule on Stotearu’s eviden-
tiary challenge to the information contained in his PSR. We
deny Stoterau’s motion to file this disposition under seal, and
we decline to use a pseudonym in place of his name.
Because the use of the word “pornography” in Condition
11 made that condition impermissibly vague, we vacate the
condition and remand for the district court to impose a condi-
tion with greater specificity.
AFFIRMED IN PART, VACATED IN PART, AND
REMANDED.