United States v. Love

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 21, 2009 Decided January 22, 2010

No. 07-3140

UNITED STATES OF AMERICA,

APPELLEE

v.

ALLEN G. LOVE,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 07cr00027-01)

Beverly G. Dyer, Assistant Federal Public Defender,

argued the cause for appellant. With her on the briefs was A.

J. Kramer, Federal Public Defender. Tony W. Miles, Assistant

Federal Public Defender, entered an appearance.

Courtney D. Spivey, Assistant U.S. Attorney, argued the

cause for appellee. With her on the brief were Jeffrey A.

Taylor, U.S. Attorney at the time the brief was filed, and Roy

W. McLeese III, Assistant U.S. Attorney.

Before: GINSBURG and GRIFFITH, Circuit Judges, and

SILBERMAN, Senior Circuit Judge.

2

Opinion for the Court filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge: Allen G. Love pled guilty to

transporting or shipping material involving child pornography

in violation of 18 U.S.C. §§ 2252A(a)(1) and 2256 (2006). On

appeal, he challenges the district court’s application of a

sentencing enhancement, as well as some of the conditions of

his supervised release. We affirm Love’s sentence, save one

condition of supervised release.

I.

On October 19, 2006, two men using the screen names

“James” and “Al” met in an incest chat room on the Internet.

James mentioned he had a ten-year-old daughter, and Al

asked to see a picture of her. James soon replied with a

photograph of a young girl. “Al” was the defendant, Allen

Love. “James” was undercover Metropolitan Police Detective

Timothy Palchak, an investigator of Internet crimes against

children.1

Love and Palchak chatted online many times over the

next several months. Love wrote that he wanted to have sex

with Palchak’s daughter and asked for nude pictures of her.

Love also suggested that Palchak bring his daughter to

Chicago, where Love could have sex with her at a local hotel.

In addition, Love sent Palchak four photographs and two

video clips of prepubescent children engaging in sexually

explicit conduct, including one clip in which a child is

forcibly raped.

1

Our recitation of the facts draws from the proffer signed by Love

in support of his guilty plea and from the district court’s findings

with respect to two disputed paragraphs of the Presentence

Investigation Report.

3

During an online chat on October 26, 2006, Palchak

asked Love for pictures he could show his daughter. Love

sent him a photograph of an adult male’s genitals. On

December 7, 2006, the men chatted again about Love’s

having sex with Palchak’s daughter. Palchak said that he told

his daughter Love wanted to have sex with her and that she

was excited to meet him. Palchak said he was going to show

her the child pornography Love had sent and asked for more.

Love responded, “ok,” and repeated that he wished Palchak

and his daughter were in Chicago so that Love could have sex

with her. Presentence Investigation Report (PSR) ¶ 21. In a

chat on January 23, 2007, Palchak asked Love if he had any

more pictures he could show his daughter or “just the same

stuff” he had sent previously. Love replied, “[J]ust the same

ones.” Id. ¶ 22.

On January 25, 2007, agents from the Federal Bureau of

Investigation executed a search warrant at Love’s home. A

search of his computers discovered over 600 images of child

pornography. Love confessed to the FBI that he regularly

traded child pornography with people he met online. Love

was subsequently indicted for one count of transporting or

shipping material involving child pornography and one count

of possessing such material. Love pled guilty on September 4,

2007, to the distribution count in exchange for the

government’s dismissing the possession count and

recommending a sentence at the low end of the guideline

range.

Under section 2G2.2 of the Sentencing Guidelines, the

base offense level for Love’s conduct is 22. U.S. SENTENCING

GUIDELINES MANUAL § 2G2.2(a) (2007) [hereinafter

U.S.S.G.]. As part of the plea agreement, Love stipulated to

several enhancements to his offense level: a two-level

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increase because he possessed or transmitted illicit material

involving a prepubescent minor, id. § 2G2.2(b)(2); a two-

level increase because he distributed child pornography, id.

§ 2G2.2(b)(3)(F); a four-level increase because the material

portrayed violent, sadistic, or masochistic conduct, id.

§ 2G2.2(b)(4); a two-level increase because he used a

computer to facilitate his offense, id. § 2G2.2(b)(6); and a

five-level increase because he possessed 600 or more illicit

images, id. § 2G2.2(b)(7)(D). In return, the government

agreed the offense level should be decreased by three levels

under section 3E1.1 of the Guidelines for Love’s acceptance

of responsibility. According to the stipulations, Love’s total

offense level was 34.

Following Love’s guilty plea, the United States Probation

Office issued a Presentence Investigation Report (PSR) that

agreed with those stipulations, with one exception. In lieu of

section 2G2.2(b)(3)(F)’s two-level enhancement for any

distribution of child pornography, the Probation Office

applied section 2G2.2(b)(3)(E)’s seven-level enhancement for

“[d]istribution [of child pornography] to a minor that was

intended to persuade, induce, entice, or facilitate the travel of,

the minor to engage in prohibited sexual conduct.” PSR ¶ 31.

This difference resulted in a total offense level of 39, see id.

¶ 41, five levels higher than that to which the parties had

agreed.

A defendant’s sentence may not exceed the statutory

maximum regardless of the guideline range that results from

his criminal history category and total offense level. See

U.S.S.G. § 5G1.1(a) (“Where the statutorily authorized

maximum sentence is less than the minimum of the applicable

guideline range, the statutorily authorized maximum sentence

shall be the guideline sentence.”). Love’s fairly clean criminal

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record placed him in Criminal History Category I. See PSR

¶¶ 42–49. His total offense level was either 34 or 39,

depending on whether section 2G2.2(b)(3)(E) applied. Given

Love’s criminal history category, a total offense level of 39

would translate to a sentencing range of 262 to 327 months’

imprisonment, and a total offense level of 34 would mean a

sentencing range of 151 to 188 months’ imprisonment. See

U.S.S.G. pt. 5A. But the statutory maximum for Love’s

offense is 240 months’ imprisonment. See 18 U.S.C.

§ 2252A(b)(1).

At Love’s sentencing hearing, the district court applied

the seven-level enhancement recommended by the Probation

Office, Tr. 24–25, but imposed a sentence of 188 months’

imprisonment, followed by supervised release for life.

Judgment in a Criminal Case at 2–3 [hereinafter Judgment].

Love’s term of supervised release is subject to several

standard and special conditions of supervision. Love timely

appealed, and we have jurisdiction under 18 U.S.C. § 3742.2

2

18 U.S.C. § 3742(a)(2) authorizes appeals of sentences “imposed

as a result of an incorrect application of the sentencing guidelines.”

In Love’s case, the district court imposed a sentence (188 months)

below the guideline sentence that results from applying the seven-

level enhancement (240 months). One passage in In re Sealed Case,

449 F.3d 118 (D.C. Cir. 2006), arguably suggests we lack

jurisdiction under § 3742(a)(2) when the district court grants such a

downward departure. See id. at 121–22 & n.1 (“Subsection (2) does

not allow jurisdiction here because Appellant’s sentence was not

the ‘result of an incorrect application of the sentencing guidelines.’

Rather, his sentence was the result of the District Court’s decision

to grant a departure from the Sentencing Guidelines . . . . The

[departure] did not involve an application of the Guidelines. It

involved a decision not to apply the Guidelines at all.”). In re

Sealed Case, however, held only that § 3742(a)(2) is inapplicable

6

Love argues the district court erred in three ways:

(1) applying the seven-level enhancement from section

2G2.2(b)(3)(E); (2) entering a written judgment that

conflicted with the orally pronounced sentence; and

(3) imposing unreasonable conditions of supervised release.

II.

We review sentences for abuse of discretion. See Gall v.

United States, 552 U.S. 38, 46 (2007). In applying this

standard, the court “ensure[s] that the district court committed

no significant procedural error.” Id. at 51. Procedural errors

include “failing to calculate (or improperly calculating) the

Guidelines range, treating the Guidelines as mandatory,

failing to consider the § 3553(a) factors, selecting a sentence

based on clearly erroneous facts, or failing to adequately

explain the chosen sentence—including an explanation for

any deviation from the Guidelines range.” Id.

Love argues the district court committed procedural error

by applying section 2G2.2(b)(3)(E)’s seven-level

enhancement. He alleges error with respect to each element of

the enhancement: (1) distribution of child pornography; (2) to

when the defendant challenges the degree of a section 5K1.1

departure from the guideline range. See id. at 121–22 (citing United

States v. Hazel, 928 F.2d 420, 423 (D.C. Cir. 1991)). Love’s

argument is different. Because Love challenges the district court’s

initial calculation of the guideline range, rather than the degree of

its subsequent downward departure, we have jurisdiction under

§ 3742(a)(2). A sentence that results from a miscalculation of the

guideline range is “imposed as a result of an incorrect application

of the sentencing guidelines,” 18 U.S.C. § 3742(a)(2), regardless of

whether the district court also departed from the guideline range.

7

a minor; and (3) intended to persuade, induce, entice, or

facilitate the travel of, the minor to engage in prohibited

sexual conduct. We address each of his arguments in turn. We

find none persuasive.

A.

Love argues the district court erroneously based the

enhancement on his transmittal of one image of an adult

male’s genitals, rather than his admitted distribution of

pictures and videos of child pornography. Appellant’s Br. at

14; Reply Br. at 6–10. To address this argument, we must

examine the entire sentencing transcript to understand why

the district court applied the enhancement. See United States

v. Brockenborrugh, 575 F.3d 726, 740–41 (D.C. Cir. 2009)

(discussing the need to avoid “reading the district court’s

explanation [of a sentencing adjustment] in a parsed manner

that overlooks its meaning in context”). If Love’s

understanding of the district court’s decision were correct, we

would reverse. The enhancement applies only to distribution

of “material involving the sexual exploitation of a minor.”

U.S.S.G. § 2G2.2 cmt.1. A photograph of an adult’s genitals

does not qualify. A careful reading of the entire sentencing

transcript, however, shows that the district court relied on the

exchange of adult pornography only for its value as

circumstantial evidence that Love distributed child

pornography to a minor with the requisite intent. We therefore

find no error.

In his pre-hearing objections to the PSR, Love raised two

objections to the seven-level enhancement. First, Love

distributed child pornography to Palchak, not “to a minor.”

Second, Love did not intend to facilitate a sexual encounter

with Palchak’s daughter. At the sentencing hearing, the court

8

questioned defense counsel about these objections. In doing

so, the court referred to all the material Love had sent

Palchak:

All of that, at least circumstantially, shows that . . . the

defendant believed that it was being sent, albeit at the

request of the officer, to the officer for the purpose of it

being shown to the child . . . . I think it is reasonable to

infer from all of that, that he sent it with the anticipation

it would be shown to the child, so that it would factor into

the child ultimately having sex with him.

Tr. 24–25 (emphases added).

Love argues the court’s use of the word “it” shows the

court was speaking of a single photograph. Appellant’s Br. at

14; Reply Br. at 7–8. Though plausible, that is not the only

permissible reading of the court’s conclusion. “It” could just

as easily refer to the child pornography Love sent or, more

likely, all the pornography he sent, taken together.

Read in isolation the court’s statement is at most

ambiguous. Read in context, it shows the district court applied

the enhancement because of Love’s distribution of material

that included child pornography. In response to defense

counsel’s argument that Love would not have distributed

child pornography to a minor had Palchak not induced him,

the court stated even more plainly its conclusion that Love

distributed child pornography to Palchak’s daughter with the

intent to facilitate a sexual encounter with her:

[T]he dissemination of material, not only showing young

children in nude situations, but very suggestive situations,

and also showing children actually being raped—I think

it would be very difficult to show that when you send

9

photographs to someone with the intent of having those

photographs shown to a child and you have already

expressed your intent or desire to have sex with that

child, I think it is very difficult to show that there wasn’t

a predisposition to engage in the act.

Tr. 18.

Nevertheless, Love contends the court based the

enhancement on the chat in which he sent Palchak adult—but

not child—pornography because the court repeatedly

mentioned that chat. Appellant’s Br. at 14; Reply Br. at 6–7.

But Love’s reading is too crabbed and fails to take into

account that these comments were made in the context of

Love’s having already conceded that he distributed child

pornography. The court easily found that Love distributed

adult pornography to Palchak’s daughter to facilitate

prohibited sexual conduct. It then reasonably inferred that

when Love sent Palchak child pornography, he did so for the

same reason and expected Palchak’s daughter to see it.

Because the district court based its application of the

enhancement on Love’s distribution of child pornography, it

committed no error.

B.

Love next argues his distribution of child pornography

was not “to a minor.” Appellant’s Br. at 14–15; Reply Br. at

10–12. He gives three reasons: (1) the evidence does not

support a finding that Palchak’s fictitious daughter was a

“minor” as defined in the commentary to the guideline; (2) the

evidence was insufficient to support a finding that Love had

the requisite intent or knowledge that Palchak would show his

daughter the child pornography; and (3) the enhancement is

limited to “direct” distribution of child pornography to a

10

minor and therefore does not apply here. Because its findings

were not clearly erroneous and its interpretation of the

guideline was correct, the district court did not abuse its

discretion. See United States v. Sammoury, 74 F.3d 1341,

1345 (D.C. Cir. 1996).

The commentary to section 2G2.2 defines “minor” to

include “an individual, whether fictitious or not, who a law

enforcement officer represented to a participant (i) had not

attained the age of 18 years, and (ii) could be provided for the

purposes of engaging in sexually explicit conduct.” U.S.S.G.

§ 2G2.2 cmt.1. Love argues there was insufficient evidence to

find that Palchak “represented” that his young daughter

“could be provided for the purposes of engaging in sexually

explicit conduct.” The record contains ample evidence to

support that finding. Palchak wrote that he told his daughter

Love wanted to have sex with her and she was excited to meet

him, PSR ¶ 21, from which one could reasonably infer that he

was offering his daughter for sex. Moreover, Palchak made

that statement during several months of chats in which Love

made repeated entreaties to have sex with his daughter.

Love also argues the enhancement applies only if the

government shows he intended for Palchak to display the

child pornography to his daughter. But Love provides no

authority that the government must prove specific intent.

Knowing the child pornography he distributed would reach a

minor is sufficient, see U.S.S.G. § 2G2.2 cmt.1 (defining

“distribution to a minor” as “the knowing distribution to an

individual who is a minor at the time of the offense”

(emphasis added)), and the district court did not clearly err in

concluding Love acted with such knowledge. During their

chats, Palchak repeatedly asked for photographs or movies

that he could show his daughter. On January 23, 2007,

11

Palchak again asked if there were pictures he could show the

young girl, and Love responded: “[J]ust the same ones” he

had already sent. PSR ¶ 22. By that time, Love had given

Palchak numerous photographs and movie clips containing

child pornography.

Finally, nothing in the Guidelines supports Love’s

argument that section 2G2.2(b)(3)(E) applies only to

distribution of child pornography “directly” to a minor. Love

suggests that, if the Sentencing Commission intended the

enhancement to apply to distribution through an intermediary,

it would have made the guideline explicit on that point.

Appellant’s Br. at 15. But the Commission could just as easily

have limited the guideline in the manner Love suggests by

inserting the word “directly” before “to a minor.” We will not,

without good reason, read into the guideline a requirement not

included in its text. Cf. Jama v. Immigration & Customs

Enforcement, 543 U.S. 335, 341 (2005) (“We do not lightly

assume that Congress has omitted from its adopted text

requirements that it nonetheless intends to apply . . . .”).

Rather, we understand section 2G2.2(b)(3)(E) to apply when,

acting with the requisite purpose, the defendant engages in an

act related to the transfer of child pornography with the

knowledge it will be received or viewed by a minor.

C.

Love also asserts, as he did below, that the record does

not support a finding that his distribution of child

pornography was “intended to persuade, induce, entice,

coerce, or facilitate the travel of” Palchak’s daughter to

engage in prohibited sexual conduct. We review the district

court’s factual finding about Love’s intent for clear error. See

United States v. Leonzo, 50 F.3d 1086, 1088 (D.C. Cir. 1995).

12

The district court did not clearly err in concluding Love

intended his distribution of child pornography to “factor into

the child ultimately having sex with him.” Tr. 25. During their

first conversation, Love asked Palchak for a picture of his

daughter. After Palchak sent a photograph of a young girl,

Love said he wanted to have sex with her and asked Palchak

to bring her to Chicago for that purpose. When Palchak told

Love he was going to show his daughter the videos he had

sent, Love replied, “ok,” and that he wished Palchak and his

daughter were in Chicago so Love could have sex with her.

PSR ¶ 21. The district court inferred from these exchanges

that Love’s purpose in conversing with Palchak and sending

him child pornography was to facilitate a sexual encounter

with Palchak’s ten-year-old daughter. This was not clearly

erroneous.

We therefore affirm the district court’s application of

section 2G2.2(b)(3)(E)’s seven-level enhancement.

III.

Next, Love challenges seven conditions of his supervised

release, some on the ground that they differ from the sentence

announced from the bench and all on the ground that they are

unreasonable.

A.

Because “[t]he pronouncement of the sentence constitutes

the judgment of the court,” Kennedy v. Reid, 249 F.2d 492,

495 (D.C. Cir. 1957), “the written judgment form is a nullity

to the extent it conflicts with the previously pronounced

sentence,” United States v. Booker, 436 F.3d 238, 245 (D.C.

Cir. 2006). This rule rests on two foundational principles:

(1) the defendant has a right to be present at sentencing,

13

Borum v. United States, 409 F.2d 433, 440 n.28 (D.C. Cir.

1967), and (2) “when a final judgment has once been entered,

no second or different judgment may be rendered . . . until the

first shall be vacated and set aside or reversed on appeal or

error.” Booker, 436 F.3d at 245 (quoting 49 C.J.S.

JUDGMENTS § 76, at 150–51 (2005)). When the two are in

conflict, we will order the judgment corrected to conform to

the sentence imposed from the bench, see, e.g., United States

v. Lewis, 626 F.2d 940, 953 (D.C. Cir. 1980), but we will not

remand when the judgment is consistent with the sentence,

see Borum, 409 F.2d at 440.

This circuit has not squarely addressed whether the

district court may use the written judgment to clarify an

ambiguous oral pronouncement of the sentence. Today we

join the vast majority of our sister circuits in holding that it

may. See United States v. Penson, 526 F.3d 331, 334–35 (6th

Cir. 2008); United States v. Napier, 463 F.3d 1040, 1043–44

(9th Cir. 2006); United States v. Vega-Ortiz, 425 F.3d 20, 23

(1st Cir. 2005); United States v. Osborne, 345 F.3d 281, 283

n.1 (4th Cir. 2003); Ruggiano v. Reish, 307 F.3d 121, 133–35

(3d Cir. 2002); United States v. Thomas, 299 F.3d 150, 152–

53 (2d Cir. 2002); United States v. Warden, 291 F.3d 363, 365

(5th Cir. 2002); United States v. Bull, 214 F.3d 1275, 1279

(11th Cir. 2000); United States v. Bonanno, 146 F.3d 502,

511–12 (7th Cir. 1998); United States v. Villano, 816 F.2d

1448, 1451 (10th Cir. 1987) (en banc) (“This is the purpose of

the written order: to help clarify an ambiguous oral sentence

by providing evidence of what was said from the bench.”).

But cf. Holloway v. United States, 960 F.2d 1348, 1358 (8th

Cir. 1992) (“[A]mbiguities in the sentence pronouncement are

to be construed in favor of the defendant.”). Therefore, we

will not remand for the district court to correct a written

14

judgment that clarifies—rather than contradicts—the oral

pronouncement of the sentence.

Love contends that the descriptions of several special

conditions of supervised release in the written judgment

impermissibly conflict with the conditions imposed orally at

sentencing. Most of the alleged discrepancies simply clarify

or define terms included in the oral pronouncement. Not every

difference Love finds between the sentence and judgment

warrants discussion, but some do, and with respect to one

condition he is correct.

First, Love argues that the judgment’s description of the

condition regarding mental health treatment impermissibly

differs from the sentence. At the sentencing hearing, the

district court required that, while in prison, Love receive “any

mental-health treatment that needs to be provided.” Tr. 63.

The court further required that when Love is “on supervised

release, if it’s felt further treatment is needed, either in the

sex-offender area or in the mental-health area, [Love] also

participate in that.” Tr. 64. The written judgment provides:

The defendant shall participate in a mental health

program specifically related to sexual offender

therapy, as approved by the Probation Office. The

defendant shall abide by all program rules,

requirements and conditions, which may include, but

[are] not limited to, submission to periodic and

random polygraph testing, plethysmograph

examinations, and ABEL Assessment, as directed by

the Probation Office.

Judgment at 4.

15

Love maintains the oral pronouncement of the sentence

made treatment conditional, rather than mandatory, by

requiring mental health or sex offender treatment only “if it’s

felt further treatment is needed.” Tr. 64. Love also challenges

the reasonableness of the oral pronouncement as

impermissibly vague because it fails to identify who will

decide if treatment is necessary and when such a

determination will be made. Appellant’s Br. at 20–21; Reply

Br. at 15.

Oral pronouncements of supervised release conditions are

often worded imprecisely. Cf. United States v. Daugherty, 269

U.S. 360, 363 (1926) (“Sentences in criminal cases should

reveal with fair certainty the intent of the court . . . . [But]

elimination of every possible doubt cannot be demanded.”).

With that in mind, we do not think the district court intended

to make Love’s mental health treatment conditional on a

subsequent determination of its necessity. Once again, we

look to the context of the district court’s statements. See

Brockenborrugh, 575 F.3d at 740–41. The district court had

before it the Sentencing Guidelines, which recommend

mandatory mental health treatment, see U.S.S.G.

§ 5D1.3(d)(7), and the government’s sentencing

memorandum, which recommended the same. Love lodged no

objection to the court’s reliance upon either. Tr. 47, 66. As

such, we think the court intended the condition to be

mandatory, regardless of the phrasing used at sentencing. The

written judgment is consistent with that understanding. Our

conclusion moots Love’s concerns about the condition’s

vagueness. Because the district court made treatment

mandatory, there is no need to ask who decides whether

treatment is necessary and when that decision is to be made.

16

Second, Love contends the written judgment is more

restrictive than the oral sentence because it limits his ability,

absent permission, to reside or volunteer with minors. We find

no error because both restrictions are encompassed in a third

one: The oral pronouncement barring all contact with

children. Tr. 64. Moreover, to the extent the oral

pronouncement and written judgment differ, the judgment is

more lenient because it permits Love to reside or volunteer

with children as long as he receives permission. The oral

pronouncement could be read to prohibit even that.3

Finally, Love argues the district court impermissibly

expanded a condition restricting possession of pornography

by adding in the written judgment that he “shall not patronize

any place where pornography or erotica can be accessed,

obtained, or viewed, including establishments where sexual

entertainment is available.” Judgment at 4. The government

suggests this prohibition may be “reasonably viewed as a

clarification” of the restriction on Love’s possession of

pornographic materials. Appellee’s Br. at 39 n.17. The oral

pronouncement, however, unambiguously limits the

restriction to possession of pornography. The written

judgment is not so limited. It prohibits visiting certain

establishments—including, presumably, many bookstores and

newsstands—regardless of whether Love possesses

pornography while he is there. This cannot be understood as a

mere clarification of the pornography restriction pronounced

orally. We therefore remand to the district court for the sole

purpose of deleting from the written judgment the provision

that “[h]e shall not patronize any place where pornography or

erotica can be accessed, obtained, or viewed, including

3

The government does not challenge the judgment as insufficiently

restrictive.

17

establishments where sexual entertainment is available.” See,

e.g., United States v. Braxtonbrown-Smith, 278 F.3d 1348,

1356 (D.C. Cir. 2002) (remanding for the district court to

strike from the judgment a special condition of supervised

release).

B.

Love also challenges seven of the special conditions of

his supervised release as unreasonable or inconsistent with the

Guidelines. At sentencing, he specifically objected only to the

conditions related to Internet usage, associations with known

sex offenders, and contact with children through employment.

Tr. 47–52. We review the imposition of these conditions for

abuse of discretion. See United States v. Sullivan, 451 F.3d

884, 895 (D.C. Cir. 2006). The statutory factors guiding the

district court’s exercise of its discretion are outlined in United

States v. Stanfield, 360 F.3d 1346 (D.C. Cir. 2004):

[T]he court may order any condition of supervised

release “it considers to be appropriate,” to the extent

the condition is “reasonably related” to the nature and

circumstances of the offense and the history and

characteristics of the defendant, and to the need to

deter crime, to protect the public from further crimes

of the defendant, and to provide needed training,

medical care, or other correctional treatment to the

defendant. 18 U.S.C. § 3583(d)(1). The condition also

must entail “no greater deprivation of liberty than is

reasonably necessary” to provide adequate deterrence,

to protect the public, and to meet the defendant’s

vocational and medical needs. Id. § 3583(d)(2).

360 F.3d at 1352–53. Love’s general objection to the other

conditions, see Tr. 66 (objecting “to any condition of

18

supervised release beyond that which I indicated in my

proffer”), was insufficient to preserve his arguments for

appeal. See United States v. Breedlove, 204 F.3d 267, 270

(D.C. Cir. 2000) (“An objection is not properly raised if it is

couched in terms too general to have alerted the trial court to

the substance of the petitioner’s point.”). We therefore review

those conditions for plain error, see FED. R. CRIM. P. 52(b),

and find none.

1. Restriction on Internet Access

Love challenges a condition that will require him to

obtain prior written approval from the Probation Office for

Internet access. The condition states, “The defendant shall not

possess or use a computer that has access to any ‘on-line

computer service’ at any location, including his place of

employment, without the prior written approval of the

Probation Office.” Judgment at 4. The condition is overbroad,

Love argues, in light of the near ubiquity of the Internet in

everyday life. He suggests a more tailored condition that

would ban only electronic communication involving

prohibited sexual material, or, alternatively, would require

that his Internet use be monitored remotely by the Probation

Office. Appellant’s Br. at 22–25.

The Internet prohibition will, no doubt, substantially

affect Love’s day-to-day activities. It will deprive him of the

easiest way to pay his bills, check the weather, stay on top of

world events, and keep in touch with friends. It will also

prevent him from using the Internet to trade child

pornography. These are all factors district courts should

weigh in considering restrictions on Internet access as

conditions of supervised release. Given the alternatives of

remote monitoring of an individual’s Internet usage and

19

unannounced examinations of his computers, an Internet ban

subject to Probation Office approval may in some cases

impose a “greater deprivation of liberty than is reasonably

necessary” to deter illegal conduct and protect the public. 18

U.S.C. § 3583(d)(2); see, e.g., United States v. Perazza-

Mercado, 553 F.3d 65, 69–74 (1st Cir. 2009); United States v.

Crume, 422 F.3d 728, 733 (8th Cir. 2005); United States v.

Holm, 326 F.3d 872, 877–79 (7th Cir. 2003); United States v.

Sofsky, 287 F.3d 122, 126–27 (2d Cir. 2002); United States v.

White, 244 F.3d 1199, 1205–07 (10th Cir. 2001). But not

here. In Love’s case, this restriction is eminently reasonable.

On this record, the condition is properly tailored to the

circumstances of the offense and Love’s background, and it is

reasonably necessary to deter future misconduct and to protect

children. Consensus is emerging among our sister circuits that

Internet bans, while perhaps unreasonably broad for

defendants who possess or distribute child pornography, may

be appropriate for those who use the Internet to “initiate or

facilitate the victimization of children.” Holm, 326 F.3d at

878; see United States v. Thielemann, 575 F.3d 265, 278 (3d

Cir. 2009); United States v. Johnson, 446 F.3d 272, 283 (2d

Cir. 2006); United States v. Boston, 494 F.3d 660, 668 (8th

Cir. 2007); United States v. Paul, 274 F.3d 155, 169 (5th Cir.

2001). The distinction is grounded in the simple proposition

that when a defendant has used the Internet to solicit sex with

minors, “the hazard presented by recidivism” is greater than

when the defendant has traded child pornography. Johnson,

446 F.3d at 283.

The district court found that Love not only distributed

child pornography but that he also solicited sex with

Palchak’s fictitious daughter. The court concluded that Love

would have had sex with her if given the opportunity, Tr. 18,

20

59, 60, and he would likely repeat this conduct upon release if

he thought he would not be caught, Tr. 62. In sum, the hazard

presented by Love’s potential recidivism is substantial, and

his inclination towards reoffending is great. Making Love’s

Internet use subject to Probation Office approval is therefore

appropriately tailored to the harm that may result should he

resume his previous course of conduct after release from

prison.

Moreover, the continuing development of the Internet

makes it reasonable for the district court to give the Probation

Office broad authority to determine the scope of Love’s

permissible Internet use. Love’s term of supervised release

will not begin any time soon. Sentencing courts can predict

neither the new ways in which child pornography will then be

available nor the new technologies the government may use to

police its availability. An Internet restriction that today

imposes “no greater deprivation of liberty than is reasonably

necessary” to deter illegal conduct may, by the time Love is

released, be either wholly inadequate or entirely too

burdensome. A broad Internet prohibition, which the

Probation Office will tailor to the technology in use at the

time of Love’s release, is an appropriate way to deal with that

uncertainty. We assume the Probation Office will reasonably

exercise its discretion by permitting Love to use the Internet

when, and to the extent, the prohibition no longer serves the

purposes of his supervised release. The Internet restriction

therefore imposes no greater deprivation of liberty than is

reasonably necessary to serve the purposes of supervised

release.

21

2. Restriction on Contact with Known Sex Offenders

The district court required that Love “not associate with

known sex offenders or groups of individuals engaged in such

activity.” Tr. 64. Love argues compliance with this condition

would be unduly burdensome because it could preclude his

residence with other sex offenders in shared housing and

prevent his rehabilitation through group therapy with other

sex offenders. He also argues the condition is overbroad

because distribution of child pornography is not ordinarily

committed in groups.

In addition to the contact-with-sex-offenders condition,

Love’s supervised release is subject to the standard condition

prohibiting him from associating “with any persons engaged

in criminal activity” or “with any person convicted of a

felony, unless granted permission to do so by the probation

officer.” Judgment at 3. The Guidelines recommend this

condition be attached to any term of supervised release, see

U.S.S.G. § 5D1.3(c)(9), and Love does not challenge its

imposition here. The special condition prohibiting contact

with known sex offenders is merely one particular application

of the standard condition. The only difference between the

two is that the sex-offender condition contains no explicit

exception for contact with the permission of the Probation

Office. We do not agree with Love, however, that the absence

of such an exception will require the Probation Office to

enforce the condition at the expense of other post-

incarceration objectives like supervision and treatment. There

is no conflict in principle between these conditions. Should

the Probation Office find the conditions to be inconsistent in

practice, it may reasonably reconcile them through non-

enforcement of the contact-with-sex-offenders condition.

22

Moreover, we find entirely meritless Love’s contention

that the condition is overbroad because distribution of child

pornography is not usually a group offense. Distribution is

inherently interpersonal. Preventing Love from interacting

with others who share his predilections is reasonably related

to the specific-deterrence objectives of supervised release.

3. Restriction on Employment

Love also challenges as inconsistent with section 5F1.5

of the Sentencing Guidelines the requirement that he obtain

approval for employment involving contact with minors.4

That condition is impermissible, Love argues, because there

was no “reasonably direct relationship” between his

“occupation, business, or profession and the conduct relevant

to the offense of conviction.” U.S.S.G. § 5F1.5(a)(1).

Because, as we discuss below, we uphold a broader

condition that prohibits Love from having any contact with

minors, we need not decide whether the lesser included

condition banning employment involving contact with minors

is inconsistent with the Guidelines. Nothing we might say

about this narrower condition would relieve Love of his

obligation to avoid such employment.

4. Remaining Restrictions

We review for plain error the conditions relating to

Love’s possession of pornographic materials, possession of

4

As reflected in the written judgment, the condition provides: “The

defendant shall not be employed in any capacity or participate in

any volunteer activity that involves contact with minors under the

age of 18, except under circumstances approved in advance and in

writing by the Court.” Judgment at 4.

23

camera or video recording equipment, contact with children,

and post-incarceration mental health treatment.

The first three of these conditions are nearly identical to

those upheld under plain error review in United States v.

Sullivan, 451 F.3d 884 (D.C. Cir. 2006).5 We found

Sullivan’s challenges “meritless” because the conditions were

not “even arguably inconsistent” with any D.C. Circuit

authority. 451 F.3d at 896. Love cites no case decided in the

three years since Sullivan that makes any error by the district

court more plain than it would have been then. Although Love

will be on supervised release from the time he leaves prison

until the time he dies, whereas Sullivan served only a two-

year term of supervised release, compare Sullivan, 451 F.3d at

887, with Judgment at 2–3, we do not think this difference

5

The conditions read:

The defendant shall have no direct, or indirect, contact with

children under the age of 18, and shall refrain from loitering in

any place where children congregate, including but not limited

to residences, arcades, parks, playgrounds, and schools. He

shall not reside with a child or children under the age of 18

without the expressed and written approval of the minor’s

legal guardian and the written permission of the Court. . . .

The defendant shall not possess any pornographic, sexually

oriented, or sexually stimulating materials, including visual,

auditory, telephonic, or electronic media, and/or computer

programs or services that are relevant to the offender’s deviant

behavior pattern. . . .

The defendant shall not own or possess any type of camera or

video recording device without the approval of the Probation

Office.

Judgment at 4.

24

makes any error committed by the district court an obvious

one.

The only remaining condition at issue is the requirement

that Love obtain mental health treatment. As discussed above,

our holding that the condition is mandatory resolves Love’s

substantive concerns.

IV.

We remand the case to the district court with instructions

to conform the condition in the written judgment relating to

possession of sexual materials to the corresponding condition

imposed orally at the sentencing hearing. Otherwise, we

affirm.

So ordered.