United States v. Tom Malenya

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 26, 2013 Decided December 3, 2013

No. 12-3069

UNITED STATES OF AMERICA,

APPELLEE

v.

TOM LUSULI MALENYA,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:12-cr-00045-1)

Jonathan S. Jeffress, Assistant Federal Public Defender

argued the cause for appellant. With him on the briefs were

A.J. Kramer, Federal Public Defender, and Rosanna M.

Taormina, Assistant Federal Public Defender. Tony Axam Jr.,

Assistant Federal Public Defender, entered an appearance.

James A. Ewing, Assistant U.S. Attorney, argued the

cause for appellee. With him on the briefs were Ronald C.

Machen Jr., U.S. Attorney, and Elizabeth Trosman and

Chrisellen R. Kolb, Assistant U.S. Attorneys.

2

Before: BROWN and KAVANAUGH, Circuit Judges, and

WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

WILLIAMS.

Dissenting opinion filed by Circuit Judge KAVANAUGH.

WILLIAMS, Senior Circuit Judge: Tom Lusuli Malenya, a

41-year-old Army nurse, posted a personal ad on the “Men

Seeking Men” section of Craigslist.com. D.R., who was 14 at

the time, responded to Malenya’s ad by e-mail and claimed to

be an 18-year-old “twink”—someone who appears to be

younger but who is actually an adult male between the ages of

18 and 23. Via text message, Malenya arranged for D.R. to

come to his apartment, and the two had sex. A few weeks

later, D.R.’s mother became concerned about the nature of

D.R.’s relationship with Malenya and contacted the police.

Using D.R.’s phone and pretending to be D.R., a detective

sent a text message giving Malenya D.R.’s actual age and

saying, “If your [sic] not cool its [sic] ok.” Malenya

responded, via text message, “As long as you do not tell

anyone is [sic] cool.” In another exchange of text messages

the next day, Malenya arranged a second meeting at his

apartment with D.R., and was arrested when a detective

turned up instead of D.R.

In an information filed in the United States District Court

for the District of Columbia, the United States charged

Malenya with violations of 18 U.S.C. § 2422(b) and D.C.

Code § 22-3010.02. Pursuant to a plea agreement, Malenya

pled guilty to the D.C. Code violation. The court sentenced

Malenya to a 36-month term of incarceration, suspended all

but a year and a day, and imposed a 36-month term of

supervised release subject to several special conditions. After

3

sentencing, the government moved to dismiss the federal

charge, and the court granted the motion.

Malenya’s objections to the conditions of supervised

release are the sole merits subjects before us. We first address

a couple of preliminary issues. On the merits, we find that the

district court’s own statements, and the sweeping nature of

several of the conditions, demonstrate that the court failed to

weigh the burden of the conditions on Malenya’s liberty

against their likely effectiveness, as required by 18 U.S.C.

§ 3583(d). We vacate the challenged conditions and remand

the case to the district court to impose alternative conditions

consistent with the governing statute.

* * *

Congress has granted the United States District Court for

the District of Columbia jurisdiction over “[a]ny offense

under any law applicable exclusively to the District of

Columbia which offense is joined in the same information or

indictment with any Federal offense.” District of Columbia

Court Reorganization Act of 1970, Pub. L. No. 91-358, title I,

§ 111, 84 Stat. 477, 478 (codified at D.C. Code § 11-502).

The information here included both the federal offense and

D.C. Code violation, so the district court had jurisdiction over

the latter.

Disposition of the federal offense after proper joinder

does not withdraw power over the local offense, United States

v. Kember, 685 F.2d 451, 454 (D.C. Cir. 1982), but “when

federal charges have faded from the case prior to trial,” the

court has discretion to divest itself of jurisdiction, reviewable

for abuse of discretion, id. at 454, 455. Due to variations in

procedure and substance between the two systems, some

hesitance to retain jurisdiction over a properly joined D.C.

4

Code offense is in order once the federal charges have “faded

from the case.” Malenya, however, has not argued that the

district court abused its discretion, and, because retention of a

D.C. Code violation would not affect the district court’s

power to hear the case even where retention of the case was

an abuse of discretion, see id. at 454 (citing United States v.

Kember, 648 F.2d 1354, 1359 (D.C. Cir. 1980) (per curiam)),

we need not raise the issue on our own.

In a footnote to its brief the government noted that § 11-

502(3) does not explicitly address the district court’s

attachment of conditions to a term of supervised release.

Govt. Br. 16-17 n.8. The government also pointed out that

while in criminal cases in D.C. Superior Court the trial court

sets the duration of any supervised release, it is the U.S.

Parole Commission that imposes any conditions on that

release. Compare D.C. Code § 24-403.01(b) (1-4) (duration),

with D.C. Code § 24-403.01(b) (6) (conditions). We ordered

the parties to brief the matter, and Malenya, while conceding

that the district court could impose a sentence, including a

term of supervised release, argued that its attachment of any

conditions was error.

Given § 11-502(3)’s explicit grant of “jurisdiction of . . .

[a]ny offense under any law applicable exclusively to the

District of Columbia” (so long as the joinder requirement has

been met) (emphasis added), there seems little basis for any

claim that the district court exceeded its jurisdiction in

imposing conditions on supervised release. Accordingly, the

issue is subject to normal rules of forfeiture. See United

States v. Cotton, 535 U.S. 625 (2002). As Malenya didn’t

raise the issue until prompted by the government’s brief and

our order, our review is only for “plain error” under Rule

52(b) of the Federal Rules of Criminal Procedure.

5

The error, if any, falls far short of satisfying the

component of plain error review requiring that the error have

been “clear or obvious, rather than subject to reasonable

dispute.” Puckett v. United States, 556 U.S. 129, 135 (2009).

The propriety of the district court’s sentencing Malenya at all

must be inferred from the general grant of jurisdiction in D.C.

Code § 11-502(3), and, as defense counsel acknowledged, the

same is true even for the court’s imposing a term of

supervised release. Thus any claim that the court’s imposition

of conditions on that supervised release is improper seems at

least subject to reasonable dispute. Moreover, reading § 11-

502(3) to allow the district court to attach conditions has the

appeal of avoiding the peculiar result that no one can impose

conditions on the supervised release of a defendant sentenced

under § 11-502(3). Finding the supposed error not to be clear

enough to qualify as plain error, we will not review Malenya’s

forfeited claim.

* * *

We start our review of the challenged conditions by

setting them forth, as stated by the district court at sentencing,

adding bracketed headings for convenience.

[Computer/internet access.] [Y]ou shall not possess or

use a computer or have access to any on-line service

without the prior approval of the United States Probation

Office; you shall identify all computer systems, Internet

capable devices, and similar memory and electronic

devices to which you have access, and allow installation

of a computer and Internet-monitoring program.

You are limited to possessing only one personal Internet

capable device. Monitoring may include random

examinations of computer systems, along with Internet,

6

electronic, and media storage devices under your control.

The computer system or device may be removed for a

more thorough examination, if necessary. You shall be

responsible for the costs of such monitoring services.

[Computer pornography access.] You shall not use a

computer, Internet capable device, or similar electronic

device to access pornography of any kind. This includes

but is not limited to accessing pornographic web sites,

including web sites depicting images of nude adults or

minors. You shall not use your computer to view

pornography stored on related computer media such as

CDs or DVDs, and shall not communicate via your

computer with any individual or group who promotes the

sexual abuse of children.

[Preclusion of contact with minors.] You shall have no

direct contact with minors under the age of 18 without the

written approval of the probation officer, and shall refrain

from entering into any area where children frequently

congregate, including but not limited to schools, day care

centers, theme parks, theatres, playgrounds, shopping

malls, swimming areas, community recreation centers,

and arcades.

[Preclusion of contact with minors in employment or

volunteer work.] You shall not be employed in any

capacity that may cause you to come into direct contact

with children, except under circumstances approved in

advance by the supervisory probation officer. You shall

not participate in any volunteer activity that may cause

you to come in direct contact with children, except under

those circumstance [sic] approved in advance by your

probation officer.

...

7

[Required sex offender treatment.] You shall participate

in the program of sex offender assessment and treatment

as directed by the probation officer until such time as you

are released from the program. This assessment and

treatment may include physiological testing, such as

polygraph, to assist in planning, case monitoring, and

supervision. At the direction of the probation officer, you

shall pay for all or a portion of any treatment program.

Any refusal to submit to such assessment or tests as

scheduled is a violation of the conditions of release.

You shall waive your right of confidentiality in treatment,

and sign any necessary releases for any records imposed

as a consequence of this judgment to allow the

supervisory probation officer to review your course of

treatment and progress with the treatment providers.

[Physiological testing condition.] You shall submit to

penile plethysmograph testing as directed by the United

States Probation Office as part of your sex offender

therapeutic treatment. The costs of that testing are to be

paid by you as directed by the probation office.

[Limits on places of residence, employment and

volunteering.] You shall have all residences,

employment, and volunteer work preapproved by the U.S.

Probation Office. Your residence may not be in close

proximity to locations frequented by children such as

schools, playgrounds, public pools, and video galleries.

You shall neither reside in a residence where minor

children also reside, nor shall you work or volunteer for

any business or organization that provides services or

employs persons under 18 years of age without the

permission of the U.S. Probation Office.

8

. . . . [Romantic relationship limit.] You shall notify the

U.S. Probation Office when you establish a significant

romantic relationship, and shall then inform the other

party of your prior criminal history concerning your sex

offenses. You understand that you must notify the U.S.

Probation Office of that significant other’s address, age,

and where the individual may be contacted.

The government argues that plain error review should

apply to two of the conditions—the computer pornography

prohibition and the restriction on employment or volunteer

work involving minors. This is incorrect. The Presentence

Investigation Report (“PSR”) identified both of these as

suggested conditions for supervised release. Defense counsel

responded with a brief that quoted § 3583(d)’s insistence that

any imposed condition “involves no greater deprivation of

liberty than is reasonably necessary” for the various

sentencing goals set out in cross-referenced provisions.

Counsel then asserted that all of the conditions set out in the

PSR, except two not at issue in this appeal, were not

“reasonably related to this case and all involve a greater

deprivation of liberty than is reasonably necessary.”

This objection both identified the conditions to which

Malenya objected and the grounds on which he objected. Cf.

United States v. Love, 593 F.3d 1, 11 (D.C. Cir. 2010).

Malenya thus gave the court ample opportunity to avoid error

by considering the mandate of § 3583(d). See Fed. R. Crim.

P. 51(b). Our review of the challenged conditions is for abuse

of discretion. Love, 593 F.3d at 11. In such a review we ask

“whether the district court considered the prescribed factors

and clearly articulated their effect on its decision.” United

States v. Wright, 6 F.3d 811, 813 (D.C. Cir. 1993). Failure to

apply the correct legal standard itself constitutes an abuse of

discretion. Brayton v. Office of the U.S. Trade

Representative, 641 F.3d 521, 524 (D.C. Cir. 2011).

9

By statute the district court may impose conditions of

supervised release (other than certain mandatory ones) if the

conditions are “reasonably related” to factors set forth in 18

U.S.C. § 3553 and “involve[] no greater deprivation of liberty

than is reasonably necessary for the purposes” identified in

that section. 18 U.S.C. § 3583(d) (1), (2).

The statute identifies the permissible purposes by means

of complex cross-references, but the Sentencing Commission

has restated those purposes by providing that the conditions

must be

reasonably related to (A) the nature and circumstances of

the offense and the history and characteristics of the

defendant; (B) the need for the sentence imposed to

afford adequate deterrence to criminal conduct; (C) the

need to protect the public from further crimes of the

defendant; and (D) the need to provide the defendant with

needed educational or vocational training, medical care,

or other correctional treatment in the most effective

manner.

U.S. Sentencing Guidelines Manual § 5D1.3(b). The

Guidelines of course also repeat the statute’s requirement that

conditions must involve “no greater deprivation of liberty than

is reasonably necessary.” Id. The court therefore must not

only find the condition to be reasonably related to Congress’s

goals as related to the defendant but must weigh the

consequences for the defendant’s liberty against any likely

achievement of the statutory purposes. Though “reasonably

necessary” may be quite vague in many legal contexts, see

Dissent at 2, here it is tethered to deprivation of liberty in

terms that in effect require the court to choose the least

restrictive alternative. Section 3583(d)(2) is thus, as the

Seventh Circuit put it, a “narrow tailoring requirement.”

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

10

also United States v. Perazza-Mercado, 553 F.3d 65, 73 (1st

Cir. 2009); United States v. Voelker, 489 F.3d 139, 144-45 (3d

Cir. 2007).

The court’s characterization of the conditions imposed

was quite inconsistent with the statutorily required

consideration of Malenya’s liberty. First, it justified them as

“the standard conditions that are imposed in these cases,” thus

wrapping the case before it into a cluster of “these cases”—

cases whose distinguishing features it did not delineate.

Further, the court explained that the conditions were

reasonably necessary to “minimize the risk” of re-offense, a

formulation that ignores the balancing of goals against the

defendant’s liberty, as required by § 3583(d)(2). Nor was the

implicit rejection of balancing in this language corrected or

offset by any indication of balancing elsewhere in the court’s

discussion.

The limit on computer/internet access illustrates the

failure to consider the consequences of the conditions. Its key

phrase says that “you [Malenya] shall not possess or use a

computer or have access to any on-line service without the

prior approval of the United States Probation Office . . . and

[shall] allow installation of a computer and Internet-

monitoring program.”

We have often noted the ubiquity of computers in modern

society and their essentialness for myriad types of

employment. See, e.g., United States v. Russell, 600 F.3d

631, 637 (D.C. Cir. 2010). Given the need to use a computer

to apply for a job at McDonald’s, id., it seems likely that full-

bore enforcement would shrink Malenya’s employment

opportunities to the vanishing point. And even if he secured

probation office approval for use of the computer systems in

his chosen vocation of medicine, the monitoring requirement

appears inconsistent with medical privacy requirements.

11

Quite apart from employment, the internet provides, as we

noted in another decision, “the easiest way to pay . . . bills,

check the weather, stay on top of world events, and keep in

touch with friends.” Love, 593 F.3d at 12. A ban on

computer and internet usage, qualified only by the possibility

of probation office approval, is obviously a significant

deprivation of liberty.

Implicitly the government suggests that this significant

deprivation of liberty is no more than is “reasonably

necessary” for the purposes referred to in § 3583(d)(2). The

government contends that the deprivation is reasonably

necessary because but for the internet, Malenya would not

have met his victim. But this alone cannot be enough to

justify such a deprivation of liberty. If it were, district courts

could impose bans on reading newspapers if a defendant met

his victim through the wanted ads, or ban the wearing of

eyeglasses if a defendant first saw the victim through

corrective lenses. Because the net is so novel, powerful and

protean, it may seem to have a kind of magic. But pen, paper

and literacy (or at least their widespread availability) once

enjoyed all three characteristics, yet we would laugh at

criminologists who advocated banning access for prisoners

who had served their term.

When challenged as to its but-for causation argument, the

government argued that Malenya’s use of the internet to seek

a sexual relationship with an adult demonstrated that he might

use the internet to seek sex with children. But this rationale is

similarly unavailing. We explained in United States v.

Burroughs, 613 F.3d 233, 243 (D.C. Cir. 2010), that the mere

possibility that “the Internet can be used to arrange sexual

encounters with minors” is inadequate to justify an internet

restriction. It is unclear if any computer or internet restriction

could be justified in Malenya’s case, but the condition in its

current form is surely a greater deprivation of liberty than is

12

reasonably necessary to achieve the goals referenced in §

3583(d). Cf. United States v. McLaurin, 731 F.3d 258, 262

(2d Cir. 2013).

The pornography restriction also illustrates the district

court’s failure to consider the appropriateness of the probation

office’s proposed conditions. The district court may have

been within reason to restrict a child sex offender’s access to

child pornography, which is of course already illegal, see, e.g.,

18 U.S.C. § 2252A. But the record contains no evidence

either that Malenya indulged in adult or child pornography, or

that viewing adult pornography would increase the likelihood

that he would again indulge in sex with non-adults—which,

after all, he did not seek out in this case. With no evidence of

a need for the restriction, it appears to be a more significant

deprivation of liberty than is reasonably necessary. See

Perazza-Mercado, 553 F.3d at 75-76, 78 (vacating an adult

pornography restriction as plain error when the district court

gave no explanation for the condition and no discernible

evidence in the record justified the ban).

Finally, the vague language and vast scope of the contact

and residential conditions demonstrate the district court’s

failure to consider the effect of the imposed conditions on

Malenya’s liberty. The restrictions not only prevent Malenya

from intentionally interacting directly with children, which

could potentially be justified, but also prevent him from

participating in many activities of everyday American life,

activities that Malenya is not shown to have abused. For

instance, a reasonable reading of the contact restriction would

prevent Malenya from entering a shopping mall or going to a

movie, even one that children cannot attend, for three years.

Moreover, use of vague language like “close proximity” and

“frequently congregate” gives the probation office the power

to prevent Malenya from living almost anywhere and going to

almost any place.

13

This significant deprivation of liberty might be justified

in a case where an offender has frequented such locations for

the purpose of preying on children, or has shown a

pathological attraction to children. Here there is no evidence

of such behavior. In fact, the evidence that Malenya is

attracted to children per se is ambiguous and seems to place

him in a category fitting neither the government’s nor

defendant’s characterization. While he never (so far as

appears) sought a sexual encounter with anyone underage, he

did persist in his plans here even after learning that D.R. was

only 14; neither his preferences nor his ethics called a halt.

We pause to consider the thought that the district court

may have substituted stringency of conditions for time in

prison. See Dissent at 5-6. Such a trade-off is obviously

conceivable. But in addressing the character of conditions,

§ 3583(d)(2) introduces the goal of minimizing the

deprivation of liberty and thus the narrow tailoring

requirement considered earlier, making the execution of such

a trade-off distinctly awkward. Further, in placing a

defendant on supervised release, the court has necessarily

determined that the goals of sentencing would at that point be

better served by putting the defendant at liberty (albeit a

constrained liberty), a shift that inherently seems to increase

the weight due to rehabilitative goals over those of retribution,

deterrence and incapacitation. Whatever the merits of the

view that a court may trade off the duration of prison and

supervised release, see United States v. Albertson, 645 F.3d

191, 198 (3d Cir. 2011), trading off duration of sentence for

stringency of conditions may prove to be a difficult practical

exercise. As the district court here gave no hint of making

such a trade-off, we need not consider whether it would have

complied with the statute.

Since the district court did not apply the correct standard

for imposing conditions of supervised release, we vacate all

14

the challenged conditions and remand to the district court to

impose special conditions of supervised release in compliance

with § 3583(d).

So ordered.

KAVANAUGH, Circuit Judge, dissenting: Malenya, then a

41-year-old man, attempted to have sex with someone he

knew to be 14. Malenya’s attempt was thwarted only because

the 14-year-old’s mother fortuitously intercepted explicit text

messages Malenya sent to the 14-year-old. For his conduct,

Malenya ultimately pled guilty and received a relatively short

prison sentence of one year and a day in prison, followed by

three years of supervised release with certain special

conditions attached. On appeal, Malenya objects to the

special conditions imposed by the District Court and asks that

they be vacated. The majority opinion vacates the special

conditions. With one exception, I would affirm the special

conditions. I therefore respectfully dissent.

I

Under Section 3583 of Title 18, a district court at

sentencing may impose a term of supervised release to follow

a term of imprisonment. By statute, a term of supervised

release comes with certain conditions attached; some are

mandatory and some are discretionary. If the defendant

violates a condition, the defendant’s term of supervised

release may be revoked and the defendant sent back to prison.

The mandatory conditions of supervised release include,

for example, a requirement that the defendant not commit

another crime or unlawfully possess a controlled substance

during the term of supervised release. See 18 U.S.C.

§ 3583(d).

By statute, the court also has discretion to impose

additional supervised release conditions, which are commonly

referred to as “special conditions,” provided that three

statutory requirements are met. First, special conditions must

be “reasonably related” to some of the general sentencing

factors identified in Section 3553(a), including “the nature

and circumstances of the offense,” “the history and

2

characteristics of the defendant,” deterrence, protection of the

public, and providing needed correctional treatment to the

defendant. Id. § 3583(d)(1) (citing id. § 3553(a)(1)-(2)).

Second, special conditions must entail “no greater deprivation

of liberty than is reasonably necessary” for certain purposes

set forth in Section 3553(a), including deterrence, protection

of the public, and providing treatment to the defendant. Id.

§ 3583(d)(2) (citing id. § 3553(a)(2)). And third, special

conditions must be “consistent with any pertinent policy

statements issued by the Sentencing Commission.” Id.

§ 3583(d)(3). The first two requirements – the “reasonably

related” and “reasonably necessary” requirements – are the

focus of this appeal.

Section 3583’s “reasonably related” and “reasonably

necessary” standards are obviously quite vague. The vague

statutory text means that district courts possess significant

discretion to balance the competing sentencing considerations

listed in Section 3553(a) (and cross-referenced by Section

3583) when imposing special conditions of supervised

release. The significant discretion in turn means that we can

expect variety. Different “district courts may have distinct

sentencing philosophies.” United States v. Gardellini, 545

F.3d 1089, 1093 (D.C. Cir. 2008). And even apart from such

philosophical differences, the special conditions that appear

“reasonably related” and “reasonably necessary” to one

district court judge in a particular case may appear unduly

restrictive to another district court judge.

On appeal, we review the district court’s selection of

special conditions of supervised release only for an abuse of

discretion. See United States v. Love, 593 F.3d 1, 11 (D.C.

Cir. 2010). Appellate deference is thus stacked upon wide

district court discretion. As appellate judges, it is not our role

to impose the mix of special conditions we would have

3

selected as district court judges in the first instance. Rather,

our more modest task is simply to ensure that the district

court has not jumped the rails bounding its wide discretion.

II

In this case, in considering whether the District Court

abused its discretion in finding the special conditions

“reasonably related” to Section 3553(a)’s sentencing goals

and not more restrictive than “reasonably necessary,” I begin

with four overarching considerations that inform my

evaluation of the specific special conditions.1

1

Malenya here challenges the District Court’s imposition of

special conditions of supervised release that require that he: (1)

“not possess or use a computer or have access to any on-line

service without the prior approval of the United States Probation

Office”; (2) “not use a computer, Internet capable device, or similar

electronic device to access pornography of any kind”; (3) “have no

direct contact with minors under the age of 18 without the written

approval of the probation officer”; (4) “refrain from entering into

any area where children frequently congregate, including but not

limited to schools, day care centers, theme parks, theatres,

playgrounds, shopping malls, swimming areas, community

recreation centers, and arcades”; (5) “not be employed in any

capacity that may cause [him] to come into direct contact with

children, except under circumstances approved in advance by the

supervisory probation officer” and not “work or volunteer for any

business or organization that provides services or employs persons

under 18 years of age without the permission of the U.S. Probation

Office”; (6) “participate in [a] program of sex offender assessment

and treatment as directed by the probation officer”; (7) “submit to

penile plethysmograph testing as directed by the United States

Probation Office”; (8) not reside “in close proximity to locations

frequented by children such as schools, playgrounds, public pools,

and video galleries”; (9) not reside “where minor children also

4

First, any analysis of the special conditions must begin

with the one critical fact in this case. Malenya, then a 41-

year-old man, targeted and attempted to have sex with

someone he knew to be 14 years old. This is a contact case.

In other words, Malenya was doing far more than watching

pornography. In what seems to be an overly generous

interpretation, the majority opinion terms the evidence

“ambiguous” as to whether Malenya was attracted to children

per se. Maj. Op. at 12. But we know that Malenya (then 41

years old) actively sought to have sex with someone he knew

to be 14 years old. That is not ambiguous. In light of

Malenya’s admitted effort to sexually prey on a 14-year-old,

it was entirely rational for the District Court to impose

various special conditions of supervised release in order to try

to prevent Malenya from sexually exploiting future under-age

victims.

Second, the special conditions imposed on Malenya are

common for sex offenders, particularly for those such as

Malenya who have engaged in or sought to engage in actual

sexual activities with individuals they knew to be under age.

See generally U.S. SENTENCING COMMISSION, FEDERAL

OFFENDERS SENTENCED TO SUPERVISED RELEASE 20-27

(2010). That these kinds of special conditions are commonly

imposed by district court judges helps demonstrate the

reasonableness of the special conditions, in the same way that

a sentence’s being within the Sentencing Guidelines helps

demonstrate the reasonableness of the sentence. Cf. United

States v. Dorcely, 454 F.3d 366, 376 (D.C. Cir. 2006)

reside . . . without the permission of the U.S. Probation Office”;

and (10) “notify the U.S. Probation Office when [he] establish[es] a

significant romantic relationship” and “inform the other party of

[his] prior criminal history.” Tr. Sentencing Hearing at 42-45, Aug.

20, 2012.

5

(appellate presumption of reasonableness for within-

Guidelines sentence).

Third, in thinking about the overall reasonableness of the

special conditions of supervised release in this case, we

cannot lose sight of the sentence as a whole. As the cross-

relationship between Sections 3583 and 3553 indicates,

Congress considered imprisonment and supervised release,

including attendant conditions, to be elements of a single

sentencing package. Here, Malenya was sentenced to only

one year and a day in prison, a fairly short prison term for a

41-year-old who attempted to have sex with someone he

knew to be 14 years old. After all, the statutory maximum

sentence Malenya could have received under the D.C. Code

provision to which he pled guilty was three years’

imprisonment. See D.C. CODE §§ 22-3010.02(b), 24-403.01.

And the federal offense for which Malenya was originally

indicted, attempted enticement of a minor in violation of 18

U.S.C. § 2422(b), carried a federal mandatory minimum of 10

years’ imprisonment. But for the Government’s exercise of

prosecutorial discretion, Malenya would have been subject to

that 10-year mandatory minimum sentence for his conduct.

The relative brevity of Malenya’s term of imprisonment

certainly bears on any assessment of the severity of the

special conditions. After all, living in freedom subject to a

few special conditions is – at least up to a point, depending on

the nature of the special conditions – a far lesser restraint on a

defendant’s liberty than living in prison. Moreover, when as

here a district court selects a shorter term of imprisonment, it

may correspondingly want to impose more restrictive special

conditions of supervised release – or a lengthier term of

supervised release – in order to achieve Section 3553(a)’s

goals of deterrence and protection of the public. See 18

U.S.C. § 3553(a)(2)(B)-(C); United States v. Albertson, 645

6

F.3d 191, 198 (3d Cir. 2011) (because of the “interplay

between prison time and the term of supervised release,” “a

district court may find it proper to impose a longer term of

supervised release to follow a relatively shorter term of

imprisonment”).

Fourth, the special conditions in Malenya’s case apply

for only three years. Contrast that limited term with the

lengthy terms of supervised release in some of our recent

cases involving sex offenders. See, e.g., United States v.

Accardi, 669 F.3d 340, 343-46 (D.C. Cir. 2012) (40 years);

United States v. Love, 593 F.3d 1, 5 (D.C. Cir. 2010) (life

term). The relatively short duration of Malenya’s term of

supervised release diminishes the overall impact of the special

conditions on Malenya’s liberty, and further shows that the

District Court was careful to impose special conditions that

were not more restrictive than “reasonably necessary.”

III

With those four overarching considerations in mind, I

turn now to specific analysis of the disputed special

conditions. Applying our deferential standard of review, I

would uphold all but one of the special conditions.

One group of disputed special conditions limits

Malenya’s ability to undertake certain activities: owning or

using a computer, accessing the Internet, contacting minors

directly, and working, volunteering, or residing with minors.

Importantly, however, Malenya is not banned from those

activities. Rather, Malenya must simply obtain the approval

of the United States Probation Office before engaging in any

of those activities.

Malenya’s probation officer will presumably exercise his

or her discretion in an appropriate manner befitting Malenya’s

7

circumstances. As this Court has emphasized in a prior case,

we can “assume the Probation Office will reasonably exercise

its discretion” to lift a prohibition when that prohibition “no

longer serves the purposes of [the defendant’s] supervised

release.” United States v. Love, 593 F.3d 1, 12 (D.C. Cir.

2010). If the probation officer acts arbitrarily, such as in

policing Malenya’s use of a computer, Malenya may petition

the district court to modify the special conditions and cabin

the officer’s discretion. See 18 U.S.C. § 3583(e)(2); United

States v. Legg, 713 F.3d 1129, 1134 (D.C. Cir. 2013); United

States v. Padilla, 415 F.3d 211, 223 (1st Cir. 2005) (en banc).

With that point in mind, I do not believe that the District

Court abused its discretion in imposing those special

conditions.

Relatedly, Malenya contends that some of the terms in

the special conditions are impermissibly vague, including the

terms “close proximity” and “significant romantic

relationship.” But again, Malenya may consult with his

probation officer or, as appropriate, the district court

regarding the proper construction of those terms should

Malenya disagree with how they are applied in practice by the

probation officer. See United States v. Forde, 664 F.3d 1219,

1224-25 (8th Cir. 2012).

Another special condition forbids Malenya from using a

computer to view pornography. But that prohibition is hardly

onerous, and it is justified for an admitted sex offender by the

apparent “connection” that courts have recognized “between

pornography and sex crimes.” United States v. Laureys, 653

F.3d 27, 35 (D.C. Cir. 2011) (citing United States v.

Sebastian, 612 F.3d 47, 52 (1st Cir. 2010); Amatel v. Reno,

156 F.3d 192, 199-201 (D.C. Cir. 1998)).

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An additional special condition requires Malenya to

enroll in a sex offender treatment program. But that

requirement is manifestly appropriate for a contact sex

offender such as Malenya. Sex offender treatment programs

can reduce the risk of recidivism and allow clinical therapists

to supervise sex offenders during their reintegration into

society. Cf. McKune v. Lile, 536 U.S. 24, 33 (2002) (plurality

opinion) (“Therapists and correctional officers widely agree

that clinical rehabilitative programs can enable sex offenders

to manage their impulses and in this way reduce

recidivism.”).

Another special condition prohibits Malenya from

“entering into any area where children frequently

congregate.” Tr. Sentencing Hearing at 43, Aug. 20, 2012.

But that special condition certainly makes sense for a

defendant such as Malenya who has already tried to have sex

with someone he knew to be 14 years old. Malenya expresses

concern that this special condition would forbid many day-to-

day activities. But even if the condition were considered

problematic in the abstract, sensibly interpreted it applies only

to entering areas such as schools and children’s playgrounds

where children are commonly present in large numbers. It

cannot reasonably and should not be read to proscribe casual

or chance encounters or entering areas such as theaters or

shopping malls unless those venues are, for example, a

children’s theater or a mall catering specifically to children.

See United States v. Burroughs, 613 F.3d 233, 246 (D.C. Cir.

2010); see also Arciniega v. Freeman, 404 U.S. 4, 4 (1971).

Again, Malenya may consult with his probation officer if he

has questions.

To reiterate, moreover, my analysis of all of the special

conditions is buttressed by the surrounding circumstances

here: Malenya tried to have sex with a 14-year-old, the

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special conditions here are common (and thus have been

deemed reasonable by many district court judges) for sex

offenders, Malenya received a relatively short prison

sentence, and the length of the term of supervised release is

also relatively short. Therefore, I would uphold all of the

special conditions of supervised release, with one exception.

I would vacate the special condition that authorizes penile

plethysmograph testing. That procedure implicates

significant liberty interests and would require, at a minimum,

a more substantial justification than other typical conditions

of supervised release. See United States v. McLaurin, 731

F.3d 258 (2d Cir. 2013). Such a justification is not present on

this record. In light of the record in this case and the

significant liberty interests infringed by this invasive

procedure, I would vacate that one special condition.

IV

In vacating the special conditions, the majority opinion,

among other things, says that the District Court did not

sufficiently explain its reasoning for the special conditions.

But in imposing the sentence, including the special conditions

of supervised release, the District Court carefully and

painstakingly explained the Section 3553(a) sentencing

factors and how the competing considerations played out in

this case. Contrary to the suggestion in the majority opinion,

moreover, the District Court did not ignore mitigating factors.

The District Court stressed Malenya’s remorse, military

service, and lack of criminal history, and emphasized that this

was a “difficult case.” See Tr. Sentencing Hearing at 37-41,

Aug. 20, 2012. A review of the sentencing transcript shows

that the District Court grappled with and plainly understood

the relevant sentencing factors. As our precedents have

repeatedly said, although the district court must consider the

Section 3553(a) factors, it need not expressly address all of

10

them at the sentencing hearing. See, e.g., United States v.

Brinson-Scott, 714 F.3d 616, 626 (D.C. Cir. 2013) (“[T]he

district court’s explanation did not invoke any of the section

3553(a) factors by name. But we do not require that it do so.

Sentencing, after all, is not a game of Simon Says.”); United

States v. Simpson, 430 F.3d 1177, 1186 (D.C. Cir. 2005). As

I read the record, the District Court did its job here and

committed no procedural error.

***

A 41-year-old man sought to have sex with someone he

knew to be 14 years old. That is a serious crime. With the

one exception described above, I would uphold the special

conditions imposed by the District Court. I respectfully

dissent.