“[A] party may not complain on appeal of errors that he himself invited or provoked or caused the court . . . to commit.”
How later courts described this case
- “[A] party may not complain on appeal of errors that he himself invited or provoked or caused the court . . . to commit.”
- “A [party] waives a right [to challenge an error by the court] when that individual invites the error and plays along with a flawed theory 24 ... throughout the litigation . . . .”
Written by the judges who cited it.
The opinion
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 18-1894
____________
UNITED STATES OF AMERICA
v.
TIESHA LASHA HENDERSON,
Appellant
Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal Action No. 1-17-cr-00011-001)
District Judge: Honorable David S. Cercone
Argued on October 18, 2022
Before: GREENAWAY, JR., MATEY and
ROTH, Circuit Judges
(Opinion filed March 29, 2023)
Samantha Stern (ARGUED)
Office of Federal Public Defender
1001 Liberty Avenue
1500 Liberty Center
Pittsburgh, PA 15222
Counsel for Appellant
Adam N. Hallowell (ARGUED)
Laura S. Irwin
Office of United States Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219
Counsel for Appellee
OPINION OF THE COURT
ROTH, Circuit Judge.
This case presents us with the rare opportunity to
clarify conflicting decisions which we have handed down.
United States v. Abreu and United States v. Preston, two cases
addressing the career offender enhancement under the U.S.
Sentencing Guidelines and the Armed Career Criminal Act,
dictate very different sentencing outcomes for defendants
2
convicted of conspiracy and other inchoate offenses. Tiesha
Lasha Henderson appeals the sentence imposed by the District
Court, arguing that the District Court plainly erred in following
Preston and applying the career offender enhancement based
on a conviction for conspiracy. We agree. We recognize that
Preston has been effectively overruled by intervening Supreme
Court precedent, and thus we hold that, under Pennsylvania
law, conspiracy to commit robbery does not constitute a “crime
of violence” for purposes of the career offender enhancement.
Therefore, we will vacate Henderson’s sentence and remand
for resentencing.
I. BACKGROUND
A grand jury indicted Tiesha Lasha Henderson for
possession with intent to distribute 40 grams or more of a
mixture and substance containing fentanyl, in violation of 18
U.S.C. §§ 841(a)(1) and (b)(1)(B)(iv). Henderson pleaded
guilty without a plea agreement.
In sentencing Henderson, the District Court applied the
career offender enhancement under U.S.S.G. § 4B1.1 and the
Armed Career Criminal Act (ACCA), based on findings that
(1) Henderson’s 2015 Pennsylvania conviction for possession
with intent to deliver heroin qualified as a “controlled
substance offense,” and (2) Henderson’s 2005 Pennsylvania
conviction for conspiracy to commit robbery qualified as a
“crime of violence.” In several pre-sentencing filings,
including Henderson’s sentencing memorandum, Henderson
acknowledged being “denominated a ‘career offender under
U.S.S.G. § 4B1.1’”, based on the 2005 conviction for
3
conspiracy to commit robbery.1 The enhancement increased
the applicable Guideline range from 70 to 87 months’
imprisonment to 188 to 235 months’ imprisonment.
Henderson did not challenge the Probation Office’s
Presentence Report Guideline calculations based on this
finding, and the District Court adopted the calculations.
The District Court sentenced Henderson to 120 months’
imprisonment, followed by four years of supervised release.
The court reduced the term of imprisonment 68 months below
the bottom of the range because of Henderson’s “mental health
issues.”2 The conditions of supervised release included that
Henderson “participate in a mental health assessment, and, if
appropriate, a mental health treatment program,” and “abide by
all program rules, requirements and conditions, including
submission to polygraph testing to determine if [Henderson] is
in compliance with the conditions of release.” 3
At sentencing, Henderson objected to the condition of
polygraph testing. The District Court responded by noting that
it imposed polygraph testing “all the time” to “[e]nsure the
defendant is compliant with all of the requirements, the
conditions of supervised release.” 4
Henderson appealed the application of the career
offender enhancement and the order requiring submission to
polygraph testing. After filing a notice of appeal, Henderson
moved to stay the appeal pending United States v. Harris, No.
1
Appx. 18, 44.
2
Appx. 2–3, 70.
3
Appx. 5.
4
Appx. 73.
4
17-1861 (en banc), which presented the question whether
Pennsylvania first-degree robbery qualifies as a violent felony
under the ACCA. We granted Henderson’s motion. Nearly
three years later, Henderson moved to lift the stay, both
because of delays in Harris and because of our decision in
United States v. Nasir, 17 F.4th 459 (3d Cir. 2021). We
granted the motion in part, lifting the stay but deferring the
issuance of the briefing schedule. We also directed the parties
to file letter briefs addressing whether summary action would
be appropriate and discussing the effect of Borden v. United
States, 141 S. Ct. 1817 (2021), in which the Supreme Court
found that crimes that can be committed with recklessness do
not qualify as “violent felonies” under the ACCA. Henderson
moved for summary reversal, which we denied. We then
directed that the appeal proceed.
II. JURISDICTION AND STANDARD OF
REVIEW
The District Court had subject matter jurisdiction
pursuant to 18 U.S.C. § 3231, which provides district courts
with original jurisdiction over “all offenses against the laws of
the United States.” We have appellate jurisdiction pursuant to
28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), which permit
review of district courts’ final decisions and final sentences.
“Whether an offense qualifies as a crime of violence
under the Sentencing Guidelines is a legal question that this
Court typically reviews de novo.”5 However, when an
appellant has previously failed to challenge an issue, we apply
5
United States v. Scott, 14 F.4th 190, 194 (3d Cir. 2021) (citing
United States v. Henderson, 841 F.3d 623, 626 (3d Cir. 2016)).
5
plain error review.6 By contrast, we review the District Court’s
imposition of a condition of supervised release for abuse of
discretion.7
III. DISCUSSION
A. The District Court Improperly Applied the Career
Offender Enhancement in Sentencing Henderson.
i) Standard of Review
Henderson first challenges application of the career
offender enhancement, based on a conviction for conspiracy to
commit robbery. The government contends that Henderson
waived this issue, inviting the error. 8 The government,
however, confuses waiver with forfeiture.
Waiver is the “intentional relinquishment or
abandonment of a known right,” while forfeiture is the “failure
to make the timely assertion of a right.” 9 Waived arguments
may not be reviewed on appeal while forfeited arguments are
reviewable for plain error. 10 A defendant waives a right when
6
United States v. Glass, 904 F.3d 319, 321 (3d Cir. 2018).
7
United States v. Lee, 315 F.3d 206, 210 (3d Cir. 2003).
8
Although waiver is distinct from invited error, we address
invited error in our analysis because the government relies on
cases that do so, and because we often discuss invited error in
determining whether an issue is waived. See, e.g., Robinson v.
First State Cmty. Action Agency, 920 F.3d 182, 187 (3d Cir.
2019).
9
Id. at 187 (quoting Barna v. Bd. of Sch. Dirs. of Panther
Valley Sch. Dist., 877 F.3d 136, 147 (3d Cir. 2017)).
10
United States v. Olano, 507 U.S. 725, 732–33 (1993).
6
that individual invites the error and “plays along with a flawed
theory . . . throughout the litigation,”11 “ultimately
endors[ing]” the position, as a party may not “complain on
appeal of errors that he himself invited or provoked or caused
the court or the opposite party to commit.” 12 In other words,
to waive a challenge, a party must specifically assent and invite
the error, “evinc[ing] an intent to proceed under” that theory. 13
Simple concessions without more, however, qualify as
forfeiture, not waiver. For example, in United States v. Glass,
the appellant’s counsel made “repeated concessions that Glass
was a career offender,” and yet, we found this constituted
forfeiture and thus “review[ed] the imposition of the career-
offender enhancement for plain error.” 14
Here, because the government confuses waiver for
forfeiture, it improperly relies on Robinson v. First State
Community Action Agency, which involved waiver. In
Robinson, the defendant specifically assented to the jury
instruction at issue, an instruction that had been the subject of
litigation.15 In contrast, Henderson neither invited nor assented
to the error here, an error that was never in dispute. Rather, the
Presentence Investigation Report introduced the error by
labeling Henderson as a career offender. Henderson did not
“invite, or provoke, or cause, the court or” the government to
11
Robinson, 920 F.3d at 189.
12
9C Fed. Prac. & Proc. Civ § 2558 (3d ed.) (quoting Harvis
v. Roadway Exp. Inc., 923 F.2d 59, 60 (6th Cir. 1991)).
13
Robinson, 920 F.3d at 188.
14
904 F.3d at 321.
15
920 F.3d at 187–89.
7
commit the error.16 As in Glass, Henderson simply acquiesced,
acknowledging that the Presentence Investigation Report
categorized Henderson as a career offender. This constitutes
forfeiture of Henderson’s claim, not waiver.
Henderson’s failure to object, based on our then-
binding precedent in United States v. Preston, which held that
conspiracy to commit robbery constituted a “violent felony”
under 18 U.S.C. § 924(e)(2)(B), does not mean Henderson
waived this issue. Repeated acquiescence does not qualify as
waiver absent any indication of counsel’s “knowledge of the
error” or concession based on a tactical advantage or strategy. 17
In fact, Henderson could not have had knowledge of an error,
and thus could not have abandoned or intentionally
relinquished a known right when no right existed at the time.
The controlling law at the time of Henderson’s sentencing no
longer holds due to subsequent Third Circuit and Supreme
Court caselaw. That subsequent law established the right that
Henderson now seeks to assert. Henderson has created no
tactical advantage.18
As a result, Henderson’s claim was forfeited, and we
16
See 9C Fed. Prac. & Proc. Civ. § 2558 (3d ed.) (quoting
Harvis, 923 F.2d at 60).
17
Gov’t of Virgin Islands v. Rosa, 399 F.3d 283, 291 (3d Cir.
2005).
18
Rosales-Mireles v. United States, 138 S. Ct. 1897, 1910–11
(2018) (“It is hard to imagine that defense counsel would
‘deliberately forgo objection now’ to a plain Guidelines error
that would subject her client to a higher Guidelines range.”
(emphasis in original)).
8
apply plain error review.
ii) Conspiracy is Not a Crime of Violence under §
4B1.2(a)
Plain error review requires finding that (1) there is an
error that has not been waived, (2) the error is plain, (3) the
error affected appellant’s substantial rights, and (4) the error
“seriously affect[s] the fairness, integrity or public reputation
of judicial proceedings.” 19
First, an error exists where a court “[d]eviat[es] from a
legal rule.”20 Here, the District Court deviated from the “rule”
that conspiracy does not qualify as a crime of violence,
applying the career offender enhancement based on a finding
that Henderson’s conspiracy to commit robbery constituted a
crime of violence. United States Sentencing Guideline §
4B1.2(a) defines “crime of violence” as “any offense under
federal or state law, punishable by imprisonment for a term
exceeding one year,” that “(1) has as an element the use,
attempted use, or threatened use of physical force against the
person of another, or (2) is . . . robbery . . . .” The Guideline
Commentary tries to expand this definition to include inchoate
offenses, including conspiracy. 21 Yet in United States v.
Abreu, we ignored the commentary and unambiguously found
19
Olano, 507 U.S. at 732 (quoting United States v. Young, 470
U.S. 1, 15 (1985)); Fed. R. Crim. P. 52(b); see also Rosales-
Mirales, 138 S. Ct. at 1907 (“A plain Guidelines error that
affects a defendant’s substantial rights is precisely the type of
error that ordinarily warrants relief under Rule 52(b).”).
20
Olano, 507 U.S. at 732–33.
21
U.S.S.G. § 4B1.2 cmt.1.
9
that “crime of violence” excludes conspiracies, like
Henderson’s conviction relied upon by the District Court
here.22
The government asks us to ignore Abreu and argues that
we should rely on United States v. Preston,23 in which we held
that, under Pennsylvania law, criminal conspiracy to commit
robbery does qualify as a “violent felony”24 that could be used
to apply the career criminal enhancement under the ACCA.25
The government argues that Preston, rather than Abreu, still
controls because a panel cannot overrule its Circuit’s case law.
However, a panel may do so when the decision conflicts with
later Supreme Court decisions and subsequent case law
applying those decisions. Preston presents such a conflict.26
In Preston, we assumed that, because the elements of a
target offense of a conspiracy, which is distinct from the
elements of conspiracy itself, must be defined for the jury, the
22
32 F.4th 271, 277–78 (3d Cir. 2022).
23
910 F.2d 81 (3d Cir. 1990).
24
While Preston deals with a separate provision, it ultimately
implicates the same issue: Whether conspiracy to commit
robbery under Pennsylvania law is a violent crime. As a result,
although “crime of violence” and “violent felony” are distinct,
their “substantial similarity” means that “courts generally
apply authority interpreting one provision to the other.” United
States v. Brasby, 61 F.4th 127, 132–33 (3d Cir. 2023). As the
government itself contends, Preston is relevant and controls
here. We thus directly discuss Preston to ameliorate any
existing confusion left by Abreu.
25
910 F.2d at 86–87.
26
United States v. Tann, 577 F.3d 533, 541 (3d Cir. 2009).
10
elements of conspiracy subsume the elements of the target
offense.27 Thus, while Pennsylvania statutes on conspiracy
have no element involving the “use, attempted use, or
threatened use of physical force against the person of
another,”28 in Preston, we determined that conspiracy to
commit robbery involves force because the target offense,
robbery, involves force.29 In coming to this conclusion,
however, we explicitly noted that it went “beyond the general
elements of criminal conspiracy” 30—an approach disallowed
by the Supreme Court in United States v. Mathis.31 As the
Mathis Court noted, a crime’s elements are “the constituent
parts of a crime’s legal definition, which must be proved
beyond a reasonable doubt.” 32
27
910 F.2d at 86.
28
Conspiracy to commit robbery in Pennsylvania only requires
findings that an individual (1) “intended to commit or aid in
the commission of” a robbery, (2) “entered into an agreement
with another (a ‘co-conspirator’) to engage in the crime,” and
(3) “committed an overt act in furtherance of the” robbery.
Commonwealth v. Murphy, 577 Pa. 275, 292 (2004).
29
Even though elements of robbery must be detailed for the
jury, they need not be proven beyond a reasonable doubt to
convict an individual of conspiracy. See United States v. Gore,
636 F.3d 728, 731 (5th Cir. 2011) (rejecting Preston’s
conclusion because “[t]he State of Pennsylvania could obtain a
conviction of conspiracy without proving beyond a reasonable
doubt that the defendant committed the crime that was the
conspiracy’s object”).
30
Preston, 910 F.2d at 86–87.
31
579 U.S. 500, 520 (2016).
32
Id. at 500.
11
While the Supreme Court has not analyzed
Pennsylvania robbery per se, in United States v. Taylor it
analyzed a similar provision of robbery, federal robbery under
the Hobbs Act, and found that attempted robbery does not
constitute a crime of violence.33 The Court applied the
categorical approach and held that, while Hobbs Act robbery
includes actual or threatened force, attempted Hobbs Act
robbery does not. 34 While attempt and other inchoate crimes,
such as Pennsylvania conspiracy,35 require a substantial step or
overt act, the step or act need not be forceful or criminal. 36
Thus, a reading of the statute that finds force would “vastly
expand the statute’s reach” and “defy our usual rule of statutory
interpretation.” 37 Preston cannot stand in light of the Supreme
Court’s refusal to include the elements of completed Hobbs
Act robbery, which involves violence, in determining whether
the inchoate offense on its own qualifies as a crime of violence.
Preston also conflicts with current Supreme Court
guidance on the level of deference courts should afford
Guideline Commentary. In Preston, we followed the approach
in Stinson v. United States, in which the Supreme Court held
that Guideline Commentary should enjoy deference unless it is
“plainly erroneous or inconsistent with the [underlying]
regulation.”38 In doing so, we accepted commentary to
33
United States v. Taylor, 142 S. Ct. 2015, 2020 (2022).
34
See id. at 2020–23.
35
See 18 Pa.C.S. § 903(e) (2005); Murphy, 577 Pa. at 292.
36
Taylor, 142 S. Ct. at 2021 (“Simply put, no element of
attempted Hobbs Act robbery requires proof that the defendant
used, attempted to use, or threatened to use force.”).
37
Id. at 2023–24.
38
508 U.S. 36, 44 (1993).
12
U.S.S.G. § 4B1.2 that incorporated conspiracy into the
definition of a crime of violence.39 After the District Court
sentenced Henderson, however, the Supreme Court overruled
Stinson in Kisor v. Wilkie, revising the weight courts should
afford agency interpretations.40 There, the Court cut back
broad deference to agency interpretation, holding that courts
should not defer to an agency’s interpretations absent genuine
ambiguity or uncertainty within the text of the statute or
regulation itself. 41 Such ambiguity is determined by applying
the “traditional tools” of statutory construction and considering
the “text, structure, history, and purpose of a regulation.”42 The
Court further noted that not all reasonable agency
interpretations of “truly ambiguous rules are entitled to
deference.”43
In United States v. Nasir, we first addressed the effect
of Kisor on the application of the career offender
enhancement.44 We held that, because the definition of
“controlled substance offense” under § 4B1.2(b) did not
mention inchoate offenses, such offenses were unambiguously
excluded.45 Due to the language of the regulation, we afforded
no Kisor deference to Guideline Commentary which suggested
the inclusion of conspiracy and inchoate crimes. 46
39
910 F.2d at 86–87.
40
139 S.Ct. 2400, 2414–15 (2019); United States v. Nasir, 17
F.4th 459, 471 (3d Cir. 2021) (en banc).
41
Kisor, 139 S. Ct. at 2414–15.
42
Id. at 2415.
43
Id. at 2414.
44
Nasir, 17 F.4th at 468.
45
Id. at 471–72.
46
Id.
13
Section 4B1.2(b) makes no mention of any inchoate
offenses. However, § 4B1.2(a), the provision at issue here,
includes “attempted use.” Applying the canon of construction
that “the expression of one thing is the exclusion of the other,”
this inclusion provides even more reason to find that the statute
clearly excludes conspiracy from the definition of “crimes of
violence.”47 As we pointed out in Abreu, the inclusion of
“attempted use” in § 4B1.2(a) “makes clear that the Sentencing
Commission knew how to include inchoate offenses in the
Guidelines and opted here to include only attempt in the text,
not conspiracy.”48 As a result, the definition of crime of
violence unambiguously excludes conspiracy; thus, the
District Court had “no plausible reason for deference.” 49
Because Kisor preempts our analysis in Preston “that turned to
the commentary rather than the text[, Preston] no longer
hold[s],” and the District Court erred in applying Preston.50
The government argues that no error exists because the
District Court did not deviate from the law at the time of
Henderson’s sentencing. However, plain error is evaluated
47
See id.; see also United States v. Winstead, 890 F.3d 1082,
1091 (D.C. Cir. 2018).
48
Abreu, 42 F.4th at 276. There is another reason here to look
only to the plain text of the statute. The Guideline section at
issue in Abreu, § 2K2.1, neither defined “crime of violence”
nor provided a cross reference. We adopted the definition from
an entirely different section, § 4B1.2(a), and still rejected
conflicting commentary. Here, by contrast, the very statutory
section at issue is the one containing the definition of crime of
violence.
49
See Kisor, 139 S. Ct. at 2415.
50
See Nasir, 17 F.4th at 472 (Bibas, J., concurring).
14
based on the law applicable on appeal. 51
Because Henderson has established the existence of an
error, we proceed with the remaining three prongs of plain
error review. The second step of plain error review asks
whether the error is plain, that is, whether it is “clear” or
“obvious.”52 Our above discussion demonstrates both that the
elements of Pennsylvania conspiracy clearly do not include a
requirement of force,53 and that under Abreu, conspiracy does
not qualify as a crime of violence. 54 As a result, it is both
obvious and clear that the District Court’s application of the
career offender enhancement is a deviation from existing rules.
Third, an error “affect[s] substantial rights” if it
“affected the outcome of the district court proceedings.” A
defendant has shown a reasonable probability of a different
outcome when he was “sentenced under an incorrect
Guidelines range—whether or not the ultimate sentence falls
within the correct range.” 55 Here, Henderson has shown that
the District Court improperly applied the career offender
enhancement, thus, sentencing Henderson under an incorrect
Guideline range. Even though the District Court gave
51
Johnson v. United States, 520 U.S. 461, 467–68 (1997).
52
Olano, 507 U.S. at 734.
53
Murphy, 577 Pa. at 292.
54
Abreu, 32 F.4th at 274–78.
55
Rosales-Mireles, 138 S. Ct. at 1907; see also Molina-
Martinez v. United States, 578 U.S. 189, 200 (2016) (An
appellant who “has shown that the district court mistakenly
deemed applicable an incorrect, higher Guidelines range has
demonstrated a reasonable probability of a different
outcome”).
15
Henderson a lower sentence, it still accepted the Presentence
Report findings on the career offender enhancement and
sentenced Henderson above the range that would have
otherwise applied. Henderson is not “required to show
more.”56
Fourth, the Supreme Court has held that any “possibility
of additional jail time . . . warrants serious consideration” of
reversal because “[t]he risk of unnecessary deprivation of
liberty particularly undermines the fairness, integrity, or public
reputation of judicial proceedings in the context of a plain
Guidelines error.”57 The Court goes on to ask “what
reasonable citizen wouldn't bear a rightly diminished view of
the judicial process and its integrity if courts refused to correct
obvious errors of their own devise that threaten to require
individuals to linger longer in federal prison than the law
demands?”58 “[T]he public legitimacy of our justice system
relies on procedures that are ‘neutral, accurate, consistent,
trustworthy, and fair,’ and that ‘provide opportunities for error
correction.’” 59 Accurate Guideline calculations are critical in
“achieving uniformity and proportionality” and “providing
certainty and fairness in sentencing.” 60 Therefore, an error in
a Presentence report that leads to an inaccurate Guideline
56
Molina-Martinez, 578 U.S. at 201.
57
Rosales-Mireles, 138 S. Ct. at 1907–08.
58
Id. at 1908 (quoting United States v. Sabillon-Umana, 772
F.3d 1328, 1333–34 (10th Cir. 2014)).
59
Id. (quoting Bowers & Robinson, Perceptions of Fairness
and Justice: The Shared Aims and Occasional Conflicts of
Legitimacy and Moral Credibility, 47 Wake Forest L. Rev.
211, 215–16 (2012)).
60
Id. (quoting 28 U.S.C. § 994(f)).
16
range, like the error made here, ordinarily satisfies the fourth
prong of plain error review.61
Because the District Court plainly erred, we will vacate
Henderson’s sentence and remand for resentencing. In doing
so, we also hold that Preston is overruled by the Supreme
Court’s decisions in Kisor and Mathis.
B. Polygraph Testing as a Condition of Supervised
Release.
Henderson challenges special condition five of the
terms of supervised release, which states that, if appropriate,
Henderson is to participate in a mental health treatment
program and to abide by its requirements and conditions,
including “submission to polygraph testing to determine if
[Henderson] is in compliance with the conditions of release.” 62
Conditions of supervised release must be “reasonably
related to the factors set forth in” 18 U.S.C. § 3553(a),
including “the nature and circumstances of the offense and the
history and characteristics of the defendant,” deterrence,
protection of the public, and correctional treatment. 63 Further,
the condition must “involve[] no greater deprivation of liberty
than is reasonably necessary for the purposes set forth” above
and be “consistent with any pertinent policy statements” made
by the Sentencing Commission. 64
We have affirmed imposing polygraph testing as a
61
See id.
62
Appellant Br. at 5.
63
18 U.S.C. §§ 3553(a), 3583(c)–(d).
64
Id. § 3583(d).
17
condition of supervised release in sex offense cases.65 In doing
so, we have found that polygraph testing may be reasonably
related to the factors set forth in § 3553(a) and does not involve
a greater deprivation of liberty than reasonably necessary
where the appellant is “already directed to report periodically
to the probation officer and provide truthful answers.”66
Henderson acknowledges these cases but argues that we
should reject polygraph testing in drug cases. However, when
imposing polygraph testing in sex offense cases, we have
found that it is reasonably related to safety and rehabilitation
where it “could be beneficial in enhancing the supervision and
treatment of” the defendant. 67 This reasoning applies in other
cases where polygraph testing might reasonably be expected to
ensure a defendant’s “compliance with [mental health or other]
treatment” and would in turn deter the commission of future
crime and “protect the public from further . . . offenses.” 68 In
affirming the imposition of polygraph testing, we have
favorably cited Owens v. Kelley, in which the Eleventh Circuit
affirmed the use of polygraph testing as a condition of
supervised release in a drug case. 69
With the above in mind, we nevertheless caution that
65
See, e.g., Lee, 315 F.3d at 217.
66
Id. at 216–17.
67
Id. at 217.
68
See Appellant Br. at 39.
69
Lee, 315 F.3d at 217 (quoting Owens v. Kelley, 681 F.2d
1362, 1370 (11th Cir. 1982)). The court in Owens found that
polygraph testing is reasonably related to probation in a drug
case in that “it deters [defendant] from violating the terms of
his probation by instilling in him a fear of detection.” 681 F.2d
at 1370.
18
polygraph testing is not appropriate across the board, and we
are not yet convinced that it is necessary here. In assessing a
condition of supervised release, we look to the reasons given
by the District Court. If the District Court fails to adequately
explain its reasons for imposing a condition of supervised
release or the condition’s relationship to the applicable
sentencing factors, we may still affirm the condition if we can
“ascertain any viable basis for the . . . restriction in the record
before the District Court . . . on our own.”70 In any event, “a
condition with no basis in the record, or with only the most
tenuous basis, will inevitably violate § 3583(d)(2)’s command
that such conditions ‘involve[] no greater deprivation of liberty
than is reasonably necessary.’”71
The District Court provided no individual basis for
imposing the condition here, instead, stating that it does so all
the time. We will not search for viable bases in the record as
we have already tasked the District Court with resentencing
Henderson. As a result, on remand, if the District Court finds
that polygraph testing is still an appropriate condition of
Henderson’s supervised release, the court should undertake an
individual analysis and provide reasons in the record for
imposing such a condition in Henderson’s specific case.
70
United States v. Voelker, 489 F.3d 139, 144 (3d Cir. 2007)
(quoting United States v. Warren, 186 F.3d 358, 367 (3d Cir.
1999)). Henderson argues that the District Court’s lack of
factual findings constitutes procedural error. Henderson is
incorrect as a matter of law.
71
United States v. Pruden, 398 F.3d 241, 249 (3d Cir. 2005)
(alteration in original) (quoting 18 U.S.C. § 3583).
19
IV. CONCLUSION
For the above reasons, we recognize that Preston v.
United States has been overruled, and we will vacate
Henderson’s sentence and remand for resentencing in line with
this opinion.
20