United States v. Charles Goodwin

In the

United States Court of Appeals

For the Seventh Circuit

No. 12-2921

U NITED S TATES OF A MERICA,

Plaintiff-Appellee,

v.

C HARLES G OODWIN,

Defendant-Appellant.

Appeal from the United States District Court

for the Central District of Illinois.

No. 2:11-cr-20036-RM-BGC-1—Richard Mills, Judge.

A RGUED JANUARY 15, 2013—D ECIDED M AY 8, 2013

Before P OSNER, W OOD , and T INDER, Circuit Judges.

T INDER, Circuit Judge. Charles Goodwin pleaded guilty

to knowingly failing to register and update a registra-

tion as a sex offender, as required by the Sex Offender

Registration and Notification Act (“SORNA”). He was

sentenced to 27 months’ imprisonment, to be followed

by a life term of supervised release, subject to ten

special conditions. Goodwin claims that the relevant

SORNA provision is an unconstitutional delegation of

2 No. 12-2921

legislative authority; argues that the district court com-

mitted plain error by miscalculating his advisory Sen-

tencing Guidelines range for supervised release and

then imposing a sentence within that miscalculated

range; and challenges four conditions of his supervised

release. We find his nondelegation claim unpersuasive,

and therefore affirm his conviction. We further hold that

the erroneous calculation of the advisory Guidelines

range and the imposition of special conditions without

explanation by the district court or support in the

record warrant vacating his sentence and remanding to

the district court for resentencing.

I. B ACKGROUND

A. Goodwin’s History & Current Offense

In 1994, Goodwin pleaded no contest to a charge of

an attempted lewd and lascivious act in the presence of

a child. Although the full extent of the conduct sup-

porting the charge is now in dispute, it suffices to say

for the purposes of this appeal that Goodwin concedes

that he did not contest the charge.1 Goodwin received

1

The government’s brief makes reference to additional facts

contained in the police report from this incident. This report

alleges conduct far beyond that used as the basis for the convic-

tion. To the extent that the police report conflicts with and

includes information extraneous to that contained in the

charging document, plea agreement, or plea colloquy, we do

not rely on its description of Goodwin’s conduct. Cf. Shepard

(continued...)

No. 12-2921 3

a noncustodial sentence of three months’ community

control (a Florida program under which offenders are

geographically constrained) and three years’ probation.

Unbeknownst to Goodwin at the time, this light sen-

tence was only the beginning of his self-inflicted trou-

bles. In December 2006, he was convicted of failure

to register as a sex offender in Douglas County (Illinois)

Circuit Court. On August 27, 2007, Goodwin registered

as a sex offender in Illinois, listing as his residence a

homeless shelter in Champaign. Staff at this shelter

did not observe Goodwin there after September 17.

By October 2, Goodwin had moved to Florida, where

he registered as a sex offender on that date. He was

notified by Florida authorities that he was required

to re-register in April 2008, but failed to do so. He

was arrested in Florida in July 2008 for this failure to

register. While in state custody, he registered as a sex

offender and was notified that he was required to re-

register in October 2008.

Goodwin moved from Florida to Illinois in Septem-

ber 2008. Having left the state—or fled, according to his

ex-wife—Goodwin failed to appear at an October 15

court date stemming from his earlier failure to register

1

(...continued)

v. United States, 544 U.S. 13, 16 (2005) (holding that a sen-

tencing court cannot look to police reports to determine

whether a guilty plea to an earlier offense is classifiable as a

violent felony in determining whether certain penalty provi-

sions apply during the sentencing hearing for a later offense).

4 No. 12-2921

in Florida. He also failed to re-register that month

in Florida, as required under Florida law. He further

failed to register in Illinois following his move, running

afoul both of Illinois’s sex-offender-registry law and

of SORNA, which makes it a felony for a sex offender

knowingly to fail to register following an interstate

move, 18 U.S.C. § 2250(a).

Goodwin was arrested in Vermilion County, Illinois,

on June 29, 2011. On July 13, a federal grand jury re-

turned an indictment alleging that he was required to

register under SORNA based on his 1994 conviction,

but knowingly failed to do so when he traveled from

Florida to Illinois in September 2008 and thereafter.

Goodwin pleaded guilty on April 25, 2012.

Following Goodwin’s guilty plea, a probation officer

prepared his Presentencing Report. The probation officer

classified Goodwin’s offense level as 10 and his criminal

history category as V, leading to a Guidelines range of

21 to 27 months’ imprisonment. The officer then stated

that the Guidelines advised a period of supervised

release of five years to life, citing U.S.S.G. § 5D1.2(b)(2)

& (c). The Presentencing Report did not include recom-

mendations regarding either any mandatory or special

conditions related to the recommended period of super-

vised release.

On August 16, the district court sentenced Goodwin to

27 months’ imprisonment, to be followed by a life term

of supervised release. In reaching this sentence, the

district court considered the factors listed in 18 U.S.C.

§ 3553(a). Specifically, the court considered Goodwin’s

No. 12-2921 5

criminal history, particularly his repeated disregard of

sex-offender-registration laws, but also noted that his

difficult childhood and history of drug use and mental

health issues provided some mitigation. The district

court also imposed ten special conditions on Goodwin’s

period of supervised release. The following four condi-

tions are at issue in this appeal:

Condition 4: You shall participate with the U.S. Pro-

bation Office’s Computer and Internet

Monitoring Program . . . . You shall in-

stall filtering software on any computer

you possess or use, which will monitor

and block access to sexually oriented

website[s]. You shall allow the probation

officer unannounced access to any com-

puter you possess or use to verify that

the filtering software is functional . . . .

You shall submit to the search of

your person, automobile, and property

under your control by the probation

officer. You shall allow the probation

officer to conduct periodic, unannounced

examinations of your computer equip-

ment . . . which may include retrieval

and copying of all data from your

device . . . or removal of such equipment

for the purpose of conducting a more

thorough inspection.

Condition 5: You shall have no contact with any per-

son under the age of 18 except in the

6 No. 12-2921

presence of a responsible adult who is

aware of the nature of your background

and current offense, and who has been

approved by the probation officer.

Condition 6: You shall neither possess nor have under

your control any material, legal or

illegal, that contains nudity or that de-

picts or alludes to sexual activity or de-

picts sexually arousing material . . . .

Condition 7: You shall not receive or transmit any

sexually arousing material, including

child pornography, via the internet, nor

visit any website . . . containing any

sexually arousing material, including

child pornography.

The district court did not discuss its reasons for

imposing these special conditions. Immediately after

stating the conditions, the court asked Goodwin a ques-

tion concerning an unrelated topic. Neither party ob-

jected to the imposition of these conditions.

B. The Sex Offender Registration and Notification Act

Since one of the issues in this appeal concerns the

constitutionality of SORNA, we provide a brief overview

of the relevant sections of this statute and applicable

regulations. Congress enacted SORNA in 2006 as part of

a larger bill, the Adam Walsh Child Protection and

Safety Act (“the Adam Walsh Act”), Pub. L. No. 109-248,

120 Stat. 587, aimed at establishing national standards

No. 12-2921 7

for sex-offender registration programs. 42 U.S.C. §§ 16911-

16929. In the introductory section to the law, Congress

stated that SORNA’s purpose is “to protect the public

from sex offenders . . . and respon[d] to the vicious

attacks by violent predators.” 42 U.S.C. § 16901. With

this purpose in mind, Congress “establish[ed] a compre-

hensive national system for the registration of those

offenders.” Id. Offenders must update their registration

in this new registration system within three days of any

change in name, residence, employer, or student status.

42 U.S.C. § 16913(c). SORNA also makes it a felony for

a covered offender to travel in interstate or foreign com-

merce and knowingly fail to register or update his or

her registration. 18 U.S.C. § 2250(a).

SORNA grants the Attorney General the “authority

to specify the applicability of the [registration] require-

ments . . . to sex offenders convicted before the enact-

ment of [SORNA].” 42 U.S.C. § 16913(d). Beyond this

general grant of authority, the statute contains no provi-

sion that provides guidance to the Attorney General

regarding what factors to consider in making this deter-

mination.

In February 2007, the Attorney General issued an

interim regulation, pursuant to his authority under

§ 16913(d), which applied SORNA’s registration require-

ments to all pre-enactment sex offenders. 72 F.R. 8894,

8897. The Attorney General made this regulation perma-

nent in July 2007. 73 F.R. 38063.

8 No. 12-2921

II. A NALYSIS

Goodwin presents three issues on appeal. First, he

renews his constitutional objection to 42 U.S.C.

§ 16913(d)—which, again, grants the Attorney General

the discretion to prosecute for failure to register under

SORNA offenders whose convictions predate the en-

actment of SORNA—as an unconstitutional delegation

of legislative authority to the executive branch. Second,

he argues that the district court’s miscalculation of the

advisory Guidelines range for his term of supervised

release constitutes plain error. Third, he claims that

Conditions 4 through 7 are not reasonably related to

his failure-to-register offense, involve a greater depriva-

tion of liberty than is necessary, and violate the First

Amendment. We address these arguments in turn.

A. The Constitutionality of SORNA

Goodwin claims that the provision of SORNA

under which he was convicted violates nondelegation

principles and therefore is unconstitutional. We review

the constitutionality of a federal statute de novo. United

States v. Hausmann, 345 F.3d 952, 958 (7th Cir. 2003). A

delegation is “constitutionally sufficient if Congress

clearly delineates [1] the general policy, [2] the public

agency which is to apply it, and [3] the boundaries of

this delegated authority.” Am. Power & Light Co. v. SEC,

329 U.S. 90, 105 (1946).

Here, all three requirements are met. SORNA directs

the Attorney General to exercise his discretion in a

No. 12-2921 9

manner consistent with the intelligible principle of “pro-

tecting the public” from sex offenders and estab-

lishing a “comprehensive” registry; the statute identifies

the Attorney General as the official to exercise this dele-

gated authority; and the Attorney General’s authority

is narrowly restricted to determining the applicability

of SORNA to offenders whose crimes predate the

statute’s enactment.

First, SORNA provides an intelligible principle to

guide the Attorney General’s exercise of delegated au-

thority. When Congress confers policymaking authority

on executive branch officials, it must “lay down by legisla-

tive act an intelligible principle to which the person or

body authorized to [act] is directed to conform.” Whitman

v. Am. Trucking Ass’ns, 531 U.S. 457, 472 (2001) (quotation

marks and citation omitted). The principle set forth

in SORNA to guide the Attorney General’s discretion

qualifies as intelligible. SORNA contains a clear state-

ment of Congress’s purpose in enacting the statute:

In order to protect the public from sex offenders

and offenders against children and [to] respon[d]

to the vicious attacks by violent predators against

the victims listed below, Congress . . . establishes

a comprehensive national system for the registra-

tion of those offenders.

42 U.S.C. § 16901.

This section provides sufficient guidance to the

Attorney General for two reasons: (i) § 16901 conveys

to the Attorney General that the delegated authority

should be exercised with the goal of “protect[ing] the

10 No. 12-2921

public” from a specific class of criminals; and (ii) § 16901

notifies the Attorney General that he or she should

act in a manner that furthers Congress’s objective of a

“comprehensive” registration system. See United States

v. Ambert, 561 F.3d 1202, 1214 (11th Cir. 2009) (“By setting

forth the broad policy goal of protecting the public and

seeking a ‘comprehensive’ national registry, Congress

has suggested that the Attorney General should require

pre-2006 sexual offenders to register to the extent that

he determines it would contribute to the protection of

the public and the comprehensiveness of a national sex

offender registry.”). The guidance that SORNA provides

regarding protecting the public from specified offenders

constitutes an intelligible principle. Cf. Yakus v. United

States, 321 U.S. 414, 420 (1944) (directive that any regula-

tion be “generally fair and equitable” qualifies as an

intelligible principle); Nat’l Broad. Co. v. United States,

319 U.S. 190, 216-17 (1943) (principle that regulators

act “in the public interest” qualifies).

Second, SORNA specifies the Attorney General as the

executive branch official designated to exercise

delegated authority. Thus, the nondelegation doctrine’s

requirement that Congress “clearly delineate[ ] . . . the

public agency which is to apply [the policy],” Am. Power &

Light Co., 329 U.S. at 105, is met.

Third, SORNA sets clear boundaries on the Attorney

General’s exercise of discretion in virtually every

respect, with the exception of the provision at issue in

this case. The statute contains detailed directives re-

garding virtually every aspect of the establishment of

No. 12-2921 11

the national registry. For instance, Congress determined

which crimes require registration, 42 U.S.C. § 16911,

the locations, deadlines, and methods for registration,

42 U.S.C. § 16913(a)-(c), and the specific penalties for

violations, 18 U.S.C. § 2250(a). Indeed, the determina-

tion of whether the statute applies to pre-enactment

offenders is one of the few areas in which the Attorney

General exercises discretion. See Ambert, 561 F.3d at

1214 (“Congress made virtually every legislative de-

termination in enacting SORNA, which has the effect

of constricting the Attorney General’s discretion to

a narrow and defined category.”).

We arrived at this same conclusion in United States

v. Dixon, a similar constitutional challenge to SORNA

on nondelegation grounds. 551 F.3d 578, 583-84 (7th Cir.

2008) rev’d on other grounds and remanded sub nom. Carr

v. United States, 130 S. Ct. 2229 (2010). This court will not

re-examine a recent decision unless presented with a

compelling reason for doing so, e.g., a legislative or

regulatory change, a judicial decision concerning a

related or analogous issue, or changes in the social or

economic context surrounding the decision. See United

States v. Dickerson, 705 F.3d 683, 689 (7th Cir. 2013).

Goodwin does not present any argument that could

generously be described as responding to new or

changed conditions. Instead, he argues that the Supreme

Court’s reversal of Dixon on grounds having nothing

to do with nondelegation “should call into question”

the continued validity of Dixon as precedent con-

cerning the constitutionality of SORNA on nondelega-

tion grounds. We think that the opposite conclusion is

12 No. 12-2921

more sensible. Since the Carr Court expressly declined

to comment on our finding in Dixon that SORNA does

not violate the Constitution, Dixon remains good law

on this issue. See Carr, 130 S. Ct. at 2242 n.2 (noting

that SORNA delegates authority to the Attorney

General, and expressly stated that the Court “does not

address the validity of this regulation”). Thus, Dixon’s

continued applicability presents an additional impedi-

ment to Goodwin’s nondelegation claim.

B. The Term of Supervisory Release

In challenging the lifetime restriction of his super-

vised release, Goodwin calls our attention to the section

of the Presentence Report (PSR) concerning supervised

release. This section states that the Guidelines advise

a supervisory period of five years to life for Goodwin’s

offense, citing two Guidelines provisions, U.S.S.G.

§ 5D1.2(b)(2) and (c), for this proposition. Based on

this supposed authority, the report recommends a life

term of supervision. Goodwin argues that U.S.S.G.

§ 5D1.2(b)(2) is inapplicable to his offense, that the

report erroneously relied on this Guideline in recom-

mending a life term of supervised release, and that the

district court’s sentencing him to a life term of super-

vised release under the incorrect assumption that this

sentence was within the advisory Guidelines constitutes

plain error. The government agrees.

The district court did not announce the advisory Guide-

line range from which it chose the lifetime term, but it

did indicate in the written judgment that the PSR was

No. 12-2921 13

accepted “without change.” So we assume that the five

years to life range advised in the PSR played a role in

the district court’s decision.

Goodwin did not object below to either the district

court’s receipt of a report containing this alleged error

or to the court’s later imposition of a life term of super-

vised release following this incorrect calculation. Since

we cannot think of any reason why Goodwin would

deliberately remain silent concerning a miscalculation

that led to the imposition of the longest possible term

of supervised release, we consider his objection on

appeal to be forfeited, not waived. See United States v.

Jaimes-Jaimes, 406 F.3d 845, 849 (7th Cir. 2005) (“For-

feiture occurs because of neglect while waiver happens

intentionally.”). Accordingly, we review this aspect of the

district court’s sentencing decision for plain error. See

United States v. Anderson, 604 F.3d 997, 1001 (7th Cir. 2010).

Under the plain-error standard, we will reverse the

district court’s sentencing determination “only when we

find: (1) an error or defect (2) that is clear or obvious

(3) affecting the defendant’s substantial rights (4) and

seriously impugning the fairness, integrity, or public

reputation of judicial proceedings.” Id.

According to Goodwin, the PSR contains two closely

related errors; the report cites the allegedly inapplicable

U.S.S.G. § 5D1.2(b)(2) in its determination of the ad-

visory Guidelines range for supervised release, and,

based in part on this citation, the report allegedly miscal-

culates the advisory Guidelines range. This Guideline

provides for a maximum life term of supervised release

14 No. 12-2921

for “a sex offense.” U.S.S.G. § 5D1.2(b)(2). Thus, the

applicability of this provision hinges on whether

Goodwin’s failure to register under 18 U.S.C. § 2250

qualifies as a sex offense. As noted, the government,

in conceding error, indicates that it shares Goodwin’s

understanding of this Guideline. We were initially con-

cerned that the government’s concession of error might

have been incorrect, but a closer examination of

this problem reveals that neither the Guideline nor

its commentary provide a basis for concluding that

the advisory Guidelines range for Goodwin’s offense

extends to a life term.

To determine whether failure to register should be

classified as a sex offense, we first look to Application

Note 1 to U.S.S.G. § 5D1.2. This note defines a sex offense

as a crime “perpetrated against a minor” under, inter alia,

chapter 109B of Title 18. The only offense listed in

chapter 109B is failure to register, 18 U.S.C. § 2250,

which is Goodwin’s offense.

The phrasing of this Application Note suggests that

a failure to register under SORNA could be considered

an offense “perpetrated against a minor” under certain

circumstances. Otherwise, the inclusion of chapter 109B

of Title 18 in the Application Note would be sur-

plusage. But how are courts to determine whether a

given failure to register was perpetrated against a mi-

nor? The Guidelines and their commentary offer no

assistance.

Perhaps the Note means to say that if the original

offense that gave rise to the registration requirement

No. 12-2921 15

were perpetrated against a minor, then the subsequent

offense of failure to register should be considered a sex

offense.2 Although such a rule arguably would be

sensible, it cannot be derived from the language of the

Guideline and it would be purely a judicial creation.

The Application Note does not provide a clear state-

ment that the Sentencing Commission had such a

purpose in mind.

It seems to us that the application of the term “perpe-

trated against a minor” to any failure to register

stretches this term past its breaking point. In Goodwin’s

case, there was no specific victim of his failure to

register, and the victim of the sex offense for which he

was convicted was nine years old at the time of the

2

This interpretation is consistent with the practice of two of

our sister circuits, which have applied this Guideline—without

explanation, and in unpublished opinions—to failures to

register where the original offense was perpetrated against a

minor. See United States v. Zeiders, 440 F. App’x 699 (11th

Cir. 2011); United States v. Nelson, 400 F. App’x 781 (4th Cir.

2010). This practice, however, is hardly universal. See United

States v. Herbert, 428 F. App’x 37 (2d Cir. 2011) (finding that a

defendant’s failure to register was not a sex offense under

U.S.S.G. § 5D1.2(b)(2); the defendant’s original crime was

committed against two minors, according to Appellee Br., 2010

WL 4815032 at *3); see also United States v. Maxwell, 483 F. App’x

233, 236 n.1 (6th Cir. 2012) (noting that “[t]here is some

basis” for the defendant’s argument “that his failure to

update his sex offender registration does not constitute a ‘sex

offense’ as defined by [U.S.S.G. § 5D1.2],” but finding

this argument to be waived).

16 No. 12-2921

offense, and, therefore, had reached the age of majority

by 2008 when Goodwin failed to register in Illinois.

Thus, it seems incorrect to claim that Goodwin com-

mitted his failure to register “against a minor.”

Instead of ignoring or placing conditions on the Ap-

plication Note’s reference to chapter 109B of Title 18,

would it be more sensible to read the phrase “per-

petrated against a minor” out of the Note? This inter-

pretation would place all failures to register within

the purview of U.S.S.G. § 5D1.2, eliminating the task

of determining how a failure to register could be per-

petrated against a minor. But ignoring the phrase “per-

petrated against a minor” with respect to chapter 109B

of Title 18 seemingly also would require us to ignore

this phrase with respect to all of the other statutory

provisions that are listed in the Note. These include

offenses for which it is relatively easy to determine

whether a minor was victimized and rational to

advise harsher penalties to offenses perpetrated against

minors. See, e.g., 18 U.S.C. § 1201 (kidnapping). Conse-

quently, reading the phrase “perpetrated against a mi-

nor” out of the Note would greatly expand the applica-

tion of U.S.S.G. § 5D1.2 to these other listed offenses.

We have no indication that the Commission intended

this result, and are unwilling to infer an intent to do

so based solely on the flimsy argument that the phrase

“perpetrated against a minor” is surplusage.

Although we ordinarily grant “controlling weight” to

the Sentencing Commission’s interpretations of its own

Guidelines, as expressed in the Commission’s Applica-

No. 12-2921 17

tion Notes, we do not defer to interpretations that are

“plainly erroneous or inconsistent” with the relevant

Guideline, federal law, or the Constitution. See United

States v. Raupp, 677 F.3d 756, 759 (7th Cir. 2012) (quoting

Stinson v. United States, 508 U.S. 36, 44-45 (1993)). Here,

the illogic of the implication that registration offenses

can be perpetrated against minors indicates that, to the

extent that the Note purports to include failures to

register as sex offenses, this portion of the Note is

plainly erroneous as a definition of “sex offense” for

purposes of U.S.S.G. § 5D1.2(b)(2). Moreover, the Note

is inconsistent with definitions of “sex offense” else-

where in the U.S. Code, see, e.g., 18 U.S.C. § 3559(e)(2)(A)

(defining “Federal sex offense” by referring to a set

of crimes, all of which clearly involve child victims), and

is equally inconsistent with the definition of “child

crimes and sexual offenses” elsewhere in the Guidelines,

see, e.g., Application Note 4(A) to U.S.S.G. § 5K2.0. Thus,

we do not defer to this Note’s unclear definition of “sex

offense.” If the Commission does in fact consider some

failures to register to be sex offenses, it should say so

plainly, and provide courts with guidance as to which

failures to register qualify. Moreover, as a portion of the

Adam Walsh Act, 18 U.S.C. § 3583(k), mandates that

registry violations should be eligible for lifetime terms

of supervised release regardless of whether they involve

a minor victim, the Guidelines should explain the cir-

cumstances under which that outcome is within range.

Since nothing about Goodwin’s failure to register

demonstrates that it is a sex offense—and since neither

the Sentencing Commission nor the district court

18 No. 12-2921

provides a rationale for the contrary position—U.S.S.G.

§ 5D1.2(b)(2) does not apply. The PSR’s citation to

U.S.S.G. § 5D1.2(b)(2) and miscalculation of the ad-

visory Guidelines range as five years to life, based on this

citation, were therefore in error. Instead, the properly

calculated advisory Guidelines “range” for Goodwin’s

offense appears to actually be a point: five years.

To see why, note first that the Guidelines advise a

term of supervised release of between one and three

years for Goodwin’s offense. See U.S.S.G. § 5D1.2(a)(2)

(setting this range for Class C felonies); see also 18 U.S.C.

3559(a)(3) (applying the Class C label to felonies for

which the maximum term of imprisonment is between

ten and twenty-five years); 18 U.S.C. § 2250(a) (mandating

a ten-year maximum term of imprisonment for failure

to register as a sex offender). This advisory Guidelines

range, however, conflicts with the statutory mandate

that individuals convicted of Goodwin’s offense re-

ceive a mandatory sentence of no less than five years

of supervised release. 18 U.S.C. § 3583(k). Where, as

here, the statutory minimum term of supervised release

is greater than the top end of the Guidelines range of

§ 5D1.2(a)(2), the statutory minimum controls. U.S.S.G.

§ 5D1.2(c); cf. United States v. Gibbs, 578 F.3d 694, 695 (7th

Cir. 2009) (“[T]he statutory minimum term of supervised

release defines either the bottom limit of the advisory

Guidelines range or the entire range (if it coincides

with the top of the Guidelines range).”). Thus, the entire

Guidelines “range” becomes the statutory minimum of

five years—not five years to life, as the PSR erroneously

states. Before we move forward, though, we note that

No. 12-2921 19

this conclusion even leaves U.S.S.G. § 5D1.2(c) unfulfilled,

because it indicates that the supervised release term

“shall be not less than” the statutorily required term. It

does not say that it “shall be equal to” that required

minimum term, but that is the required result here.

Having shown that the district court plainly erred in

its adoption of the PSR’s erroneous calculation of the

advisory Guidelines range for Goodwin’s term of super-

vised release, we turn to examining whether this error

affected Goodwin’s substantial rights. See Anderson,

604 F.3d at 1001. District courts should treat the Guide-

lines “as the starting point and the initial benchmark”

in sentencing determinations. Gall v. United States, 552

U.S. 38, 49 (2007). In addition, in reviewing sentences

we apply a rebuttable presumption of reasonableness

to within-Guidelines sentences. See United States v.

Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005); see also Rita

v. United States, 551 U.S. 338, 347 (2007) (holding that

courts of appeals may apply such a presumption post-

Booker). Given the important role that the Guidelines

play both in the imposition and in the review of sen-

tences, we find that the district court’s adoption of an

incorrect Guidelines range affected Goodwin’s sub-

stantial rights.

Finally, the plain error here “seriously affect[ed] the

fairness, integrity, or public reputation of judicial pro-

ceedings.” United States v. Trujillo-Castillon, 692 F.3d

575, 578 (7th Cir. 2012). Here, the district court im-

posed a life term of supervised release after having re-

ceived a report recommending this sentence. Although

20 No. 12-2921

the district court did not specifically cite the report or

the Guidelines in explaining the length of supervised

release that it imposed during Goodwin’s sentencing

hearing, it is no stretch to infer that the PSR’s recom-

mended life term of supervised release impacted the

court’s imposition of a life term. We have found in

similar circumstances that such errors impact the funda-

mental fairness of sentencing hearings. See, e.g., United

States v. Garrett, 528 F.3d 525, 530 (7th Cir. 2008) (“[W]e

have no reason to believe [the district court’s] error in

the application of the Guidelines did not affect its

selection of the particular sentence . . . and the resulting

prejudice to [the defendant] justifies remand for

resentencing.”). Moreover, while Goodwin failed to

notice the error in district court, “so did . . . the Assistant

United States Attorney, the probation officer, and the

district court judge, and . . . it would be unjust to place

the entire burden for these oversights on [him].” Jaimes-

Jaimes, 406 F.3d at 851. Thus, these errors concerning

the application of the advisory Guidelines warrant

resentencing.

As Section II.C., infra, explains, we also are remanding

with instructions that the district court reassess the im-

position of special conditions on Goodwin’s supervised

release. This remand on the special conditions provides

an additional reason for the district court to reconsider

the length of Goodwin’s supervised release. Since the

district court’s determinations regarding the length of

the supervisory period and any conditions imposed on

Goodwin during this period may involve interrelated

decisions, a reassessment of one of these elements

No. 12-2921 21

may provide cause for giving a second look to the

entire supervisory regime.

We also note that in reaching the conclusion that

errors concerning the application of U.S.S.G. § 5D1.2(b)(2)

warrant resentencing, we do not mean to imply that

the district court is not authorized to impose a lifetime

term of supervised release. Obviously, 18 U.S.C. § 3583(k)

clearly authorizes any term of years from five to life.

Rather, we are stating that if on remand the district

court imposes a supervised release term greater than

five years, this term will have to be explained by some-

thing other than the currently available five-year Guide-

lines range.

C. Special Conditions

Finally, Goodwin objects to the district court’s im-

position of four special conditions—labeled Conditions 4,

5, 6, and 7, above—during his period of supervised

release. The government agrees that Conditions 4, 6,

and 7 should be vacated, but argues that the district

court did not plainly err in imposing Condition 5.

A district court may impose special conditions of super-

vised release, provided that these conditions meet three

requirements. First, post-release conditions must be rea-

sonably related to the penological purposes set forth in

18 U.S.C. § 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D).

See 18 U.S.C. § 3583(d). Specifically, special conditions

“must be reasonably related to (1) the defendant’s

offense, history and characteristics; (2) the need for ade-

22 No. 12-2921

quate deterrence; (3) the need to protect the public from

further crimes of the defendant; and (4) the need to

provide the defendant with treatment.” United States v.

Angle, 598 F.3d 352, 360-61 (7th Cir. 2010); see also 18

U.S.C. § 3553(a)(1)-(2). Second, special conditions cannot

involve a greater deprivation of liberty than is rea-

sonably necessary to achieve the goals of deterrence,

incapacitation, and rehabilitation. United States v. Holm,

326 F.3d 872, 876 (7th Cir. 2003); see also 18 U.S.C.

§ 3583(d)(2). Third, the conditions must be “consistent

with any pertinent statements issued by the Sentencing

Commission.” 18 U.S.C. § 3583(d)(3).

In assessing the appropriateness of special conditions,

it also is useful to consider the rehabilitative objectives

that supervised release serves. See United States v.

Johnson, 529 U.S. 53, 59 (2000) (“Supervised release ful-

fills rehabilitative ends, distinct from those served by

incarceration.”). Placing “unduly harsh conditions [on

supervised release] would, instead of facilitating an of-

fender’s transition back into the everyday life of the

community, be a significant barrier to a full reentry into

society.” United States v. Perazza-Mercado, 553 F.3d 65,

71 (1st Cir. 2009) (quotation marks and citation omitted).

1. Standard of Review

Goodwin did not object to the imposition of these

conditions. The parties dispute the effect of this failure

to object on our standard of review, with the govern-

ment arguing that plain-error review for forfeited claims

No. 12-2921 23

ought to apply, see United States v. Tejeda, 476 F.3d 471,

474 (7th Cir. 2007), and Goodwin countering that his

lack of notice that the district court would impose these

conditions absolves him of the responsibility to object in

order to avoid plain-error review on appeal.

The government claims that, in order to preserve

claimed error on appeal under Federal Rule of Criminal

Procedure 51, a party must object before the district court

makes its ruling, or, where the party did not have

an opportunity to object beforehand, only if the party

raised the issue at the time of the ruling. United States

v. Brown, 662 F.3d 457, 461 n.1 (7th Cir. 2011), cert.

granted, judgment vacated sub nom. Vance v. United States,

133 S. Ct. 65 (2012); see also United States v. Bartlett, 567

F.3d 901, 910 (7th Cir. 2009) (stating that Rule 51(b)

“requires a protest immediately after the ruling if the

litigant did not have an opportunity to argue the point

earlier”). According to the government, such an ex post

objection would not be considered an unnecessary ex-

ception to a ruling under Rule 51(a) because in order

for Rule 51(a) to apply, the party must have already

raised its claim before the ruling. See Brown, 662 F.3d at

461 n.1.

In response, Goodwin calls our attention to our state-

ment in United States v. Courtland: “If a party does not

have an opportunity to object to a ruling or order, the

absence of an objection does not later prejudice that

party.” 642 F.3d 545, 547 (7th Cir. 2011) (quoting Fed.

R. Crim. P. 51(b)). In this case, neither the PSR nor the

addendum to it mentioned any potential conditions on

24 No. 12-2921

Goodwin’s supervised release. In fact, there is nothing

in the record that indicates that Goodwin could have

expected that the district court would impose special

conditions prior to its doing so. Given this lack of oppor-

tunity, Goodwin argues that a less deferential abuse

of discretion standard ought to apply to our review of

this issue.

We need not resolve whether plain-error review

(as Brown and Bartlett would suggest) or review for

abuse of discretion (as per Courtland) applies in these

circumstances, since we find that the special conditions

must be vacated under either standard.

2. Condition 4

Condition 4 deals mostly with Goodwin’s physical

property, requiring him to install internet monitoring

software on his computers; to submit to searches of his

person, car, computer, and other property; and to

allow his computer equipment to be removed for more

thorough examinations, among other requirements.

We consider the computer-related terms of this condi-

tion first. We fail to see how these broad restrictions

are reasonably related to Goodwin’s offense, history,

and personal characteristics. The record does not

indicate that a computer played any role in either the

instant offense for failure to register or his 1994 convic-

tion for an attempted lewd and lascivious act in the

presence of child. Cf. United States v. Freeman, 316 F.3d

386, 392 (3d Cir. 2003) (vacating a condition barring

all access to the internet as overly broad, where there

No. 12-2921 25

was no indication that the defendant had used the

internet to contact children). Nor is there any indication

in the record that Goodwin has ever used a computer

to commit any crime. Although we stop short of stating

that such restrictions could never be appropriate in

these circumstances, our skepticism leads us to con-

clude that the district court must provide some justifica-

tion for these particular conditions.

Condition 4 also requires that Goodwin submit

to warrantless searches of his person and property by

his probation officer, as well the potential seizure—

temporary, presumably—of his computer equipment

for supplemental inspections. Given the nature of

Goodwin’s convictions, we are once again at a loss to

see how this broad search and seizure authority is con-

nected to Goodwin’s offense, history, and personal char-

acteristics, or how it is reasonably necessary to fur-

thering the deterrence, public protection, and rehabil-

itative goals articulated in 18 U.S.C. § 3583(d)(2). See

United States v. Monteiro, 270 F.3d 465, 473 (7th Cir. 2001)

(vacating a seizure-related special condition, based on

an inability to “discern from this record the reason

why the district court was of the view that such broad

authority to seize was required to ensure that the ends

of rehabilitation and protection of the public were

met.”). Accordingly, we vacate this condition.

3. Condition 5

Condition 5 prohibits Goodwin from having any

contact with minors, except in the presence of an adult

26 No. 12-2921

who is aware of Goodwin’s prior sex offense and who

has been approved by the probation department. We

are skeptical that such a sweeping condition could be

reasonably related to Goodwin’s offense, history and

characteristics, particularly since there is no evidence

in the record of any incidents involving minors in the

almost two decades since Goodwin’s 1994 conviction.

Moreover, given the potentially severe restrictions on

Goodwin’s day-to-day life that this condition imposes,

the district court’s lack of explanation of why it thinks

this condition involves no greater deprivation of liberty

than necessary to achieve the penological goals stated

in 18 U.S.C. § 3553(a) is troubling.

The government responds by noting that district

courts have the discretion to impose special conditions

barring contact with minors where the immediate

offense, as with Goodwin’s failure-to-register offense,

does not involve contact with minors. But district courts’

ability to impose no-contact conditions does not absolve

them of their responsibility to explain why such condi-

tions are warranted in particular cases. Furthermore,

while we agree that such a condition may be appro-

priate in certain circumstances, we caution that these

circumstances are less common than the government

suggests. Tellingly, in over six pages of discussion of

case law concerning no-contact provisions, the govern-

ment cites only one case from our circuit: United States

v. Musso, 643 F.3d 566 (7th Cir. 2011). In Musso, we

upheld the imposition of a no-contact condition where

the defendant’s immediate offense—the violation of

his original terms of supervised release following a con-

No. 12-2921 27

viction for possession of child pornography—was not

a sex crime. Id. at 571. But Musso’s violation of his

original terms of supervised release involved him

having prolonged contact with a minor, so the re-imposi-

tion of this no-contact provision following the revoca-

tion of Musso’s supervised release can be viewed as an

extension of his original sentence for crimes involving

a child victim. Moreover, all of the cases from our sister

circuits that the government cites involve much more

serious offenses than Goodwin’s failure-to-register vio-

lation stemming from a conviction for an attempted

lewd and lascivious act in the presence of child. See,

e.g., United States v. Zobel, 696 F.3d 558 (6th Cir. 2012)

(upholding no-contact provision where defendant had

knowingly coerced and enticed minors to engage in

sexual activity); United States v. Bee, 162 F.3d 1232 (9th

Cir. 1998) (upholding no-contact provision where de-

fendant had sexually abused a six-year-old).

Given that Goodwin’s instant offense does not involve

a child victim and that his offense history, while

troubling, does not rise to the level of those offenders in

the cases that the government cites, it is not clear why

the district court imposed this no-contact condition. Be-

cause the district court has not provided any explana-

tion of how this condition is reasonably related to

Goodwin’s offense and background or to the goals of

punishment, involving no greater deprivation of liberty

than is reasonably necessary to achieve these goals, we

vacate the condition.

28 No. 12-2921

4. Condition 6

Similarly, the record before us contains insufficient

support for the imposition of Condition 6, which pro-

hibits Goodwin from possessing material that, inter

alia, “depicts or alludes to sexual activity.” Goodwin’s

failure to register under SORNA has nothing to do

with material depicting or alluding to sexual activity.

Moreover, there is nothing in the record that sheds light

on a hypothetical connection between Goodwin’s 1994

conviction or other past acts and such material. Thus, it

is unclear how this condition is reasonably related to

any of the considerations set forth in 18 U.S.C. § 3583(d).

Cf. Perazza-Mercado, 553 F.3d at 67 (holding that a

district court committed plain error by imposing, without

explanation, a special condition banning the possession

of pornography, where the record did not show a con-

nection between the defendant’s conviction for unlawful

sexual contact with a minor and pornographic material).

The inclusion of material that “alludes to” sexual

activity within Condition 6’s purview is particularly

problematic. This dictate goes beyond a ban on the pos-

session of pornography. If read literally, the inclusion

of this term could block Goodwin from possessing

much of the Western literary canon—or arguably even

from possessing a slip copy of this opinion. Such a dep-

rivation of liberty certainly would be greater than

is reasonably necessarily to achieve the goals of super-

vised release. This vague term therefore provides an

additional reason for vacation of Condition 6. See

Monteiro, 270 F.3d at 473 (vacating a “vague and

No. 12-2921 29

overbroad” special condition to enable the district court

“to craft more precisely” the condition).

5. Condition 7

Condition 7 places content restrictions on Goodwin’s

use of the internet. The portion of this condition

regarding the use of the internet to send, receive, or

view child pornography seems justifiable, given

Goodwin’s 1994 conviction for an attempted lewd and

lascivious act in the presence of child. (It is also

redundant, since another section of the judgment in

this case directs that Goodwin “shall not commit

another federal, state, or local crime” while on super-

vised release, a standard provision.) Still, the nexus

between Goodwin’s history and this section of

Condition 7 does not absolve the district court of the

responsibility to provide an explanation for all special

conditions imposed.

The sections of Condition 7 that prohibit Goodwin

from receiving or sending any sexually arousing material

that is otherwise legal—e.g., depictions of adults—via

the internet or from visiting “any website, including

chat rooms or bulletin boards containing any sexually

arousing material” give us greater pause. These prohibi-

tions can be considered internet-specific versions of

Condition 6’s prohibition on the possession of material

that “contains nudity or . . . depicts or alludes to sexual

activity or depicts sexually arousing material.” Thus,

this portion of Condition 7 suffers from the same

overbreadth and vagueness concerns as we noted con-

30 No. 12-2921

cerning Condition 6. We vacate Condition 7 for simi-

lar reasons.

Goodwin argues that his deprivation of expressive

material under Conditions 6 & 7 violates his First Amend-

ment rights. Since we vacate these conditions on other

grounds, we need not reach this constitutional question.

See Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 341

(19836) (Brandeis, J., concurring).

6. Other Conditions

Goodwin’s objections to the special conditions that

the district court imposed focus exclusively on Condi-

tions 4-7. We wonder why he has not objected to Condi-

tions 8 and 10 as well. These two conditions require him

to participate (at his own expense) in sex offender treat-

ment and mental health counseling, respectively, “as

deemed necessary by the probation officer.” As with

the other special conditions, the district court imposed

these conditions without explanation.

We note once again that each special condition

imposed must be tailored to Goodwin and his needs,

see Angle, 598 F.3d at 360-61, and involve no greater

deprivation of liberty than is reasonably necessary to

achieve the goals of deterrence, protection of the public,

and rehabilitation, see Holm, 326 F.3d at 876. Given that

Goodwin’s instant offense is for a failure to register,

the penological purpose of these treatment and coun-

seling programs is far from clear.

No. 12-2921 31

Courts of appeals ordinarily abstain from considering

issues sua sponte. See Wood v. Milyard, 132 S. Ct. 1826, 1834

(2012). Nonetheless, “[w]hen in a criminal appeal the

court of appeals notices a plain error, it can reverse even

if the appellant had not drawn the error to the court’s

attention.” United States v. Gutierrez-Ceja, 711 F.3d 780, 784

(7th Cir. 2013). Here, we are unable to discern any con-

nection between Goodwin’s offense and the purposes

that sex offender treatment and mental health coun-

seling typically serve. Thus, Conditions 8 and 10 require

additional consideration on remand, for similar reasons

as explained in our discussion of Conditions 4-7.

III. C ONCLUSION

For the foregoing reasons, we A FFIRM Goodwin’s con-

viction, V ACATE the supervised release portion of his

sentence, and R EMAND to the district court for resen-

tencing consistent with this opinion. The resentencing

shall be limited to a reassessment of the length of

Goodwin’s supervised release and any special condi-

tions imposed during this period.

5-8-13