Less than a week ago, we discussed the Seventh Circuit's growing disdain for special conditions of supervised release. Now the Tenth Circuit's turn. The district court, in United States v. Bear, imposed a number of "sex offender special conditions" in a case not involving a sex offense. But the case did involve a sex offender, and that sex offender failed to register, resulting in a federal conviction under the Sex Offender Notification and Registration Act (SORNA). The underlying sex offense conviction was more than 12 years old, however, and the defendant has three young children, so he objected to: (1) a condition requiring mental health and sex offender treatment; and (2) a condition prohibiting unsupervised contact with minors. The objections were overruled, so he appealed.
The Tenth Circuit agreed and disagreed. It agreed that a condition restricting contact with his own children was impermissible because it involved a greater deprivation of liberty than reasonably necessary (see 18 U.S.C. 3383(d)(2)). "The government presented no evidence that in the twelve years since Mr. Bear's sex offense conviction he has committed any sexual offense, displayed a propensity to commit future sexual offenses, or exhibited a proclivity toward sexual violence. Nor is there any evidence in the record that Mr. Bear has continuing deviant sexual tendencies, fantasizes about having sex with children, or has otherwise displayed a danger to his own three children."
The language just quoted is hard to square with the Tenth Circuit's rejection of Bear's other arguments. If everything the Tenth Circuit just said is true, then why does this individual need sex offender treatment? The answer is not at all clear. Instead of addressing head-on the idea that treatment is unnecessary for an individual who has done nothing wrong for 12 years (the actual offense conduct actually happened over 17 years ago), the Court justified its decision by reciting the unfortunate facts of the underlying sex offense conviction and by relying on this case, which upheld similar conditions in a case involving a 12-year-old conviction. The Court also suggested that the conditions were needed to ensure that Mr. Bear complies with his ongoing registration requirements, but it is not at all clear that sex offender treatment is aimed at registration-requirement compliance. That seems like a stretch.
The Court also rejected a nondelegation argument (raised for the first time on appeal), and an argument based on 18 U.S.C. 3583(d)(3) and USSG 5D1.3. The latter analysis should be considered dicta, at least with respect to the no-contact-with-minors condition (because the court struck down that condition). The defendant made this argument in three sentences at the end of the opening brief (the defendant did not ask for oral argument or submit a reply brief). There is more to this argument than that. On the decision, the Court's analysis is remarkably bad. It essentially equates 3583(d)(3) with 3583(d)(1) and rejects an argument based on the former because it had already rejected an argument based on the latter. But it gets worse. The Court also interprets 3583(d)(3) to prohibit only those conditions that are "discourage[d]" by the Guidelines. The problem with this interpretation is that the most applicable Guideline, USSG 5D1.3, sets forth recommended conditions, not non-recommended conditions. With this in mind, it is difficult to imagine a condition that 5D1.3 "discourages."
We say all of this to encourage you not to give up on 3583(d)(3). It has to mean something more than 3583(d)(1) (or it would not exist), and it has to do more than prohibit "discouraged" conditions (again, because these arguably do not exist). Explain that to the court the next time you raise a 3583(d)(3) argument.