United States v. Medina

United States Court of Appeals For the First Circuit

No. 13-1936

UNITED STATES OF AMERICA,

Appellee,

v.

MOISÉS MEDINA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

Torruella, Thompson, and Barron, Circuit Judges.

Edward J. O'Brien, with whom O'Donnell, Trossello & O'Brien, LLP was on brief, for appellant. Marshal D. Morgan, Assistant United States Attorney, with whom Juan Carlos Reyes-Ramos, Assistant United States Attorney, Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez- Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

March 4, 2015

BARRON, Circuit Judge. Moisés Medina failed to register

as a sex offender when he moved to Puerto Rico in May of 2012, even

though he had been convicted of a state sex offense four years

earlier. As a result, Medina was arrested for violating the Sex

Offender Notification and Registration Act, also known as SORNA, 18

U.S.C. § 2250. He then pled guilty and was sentenced to a thirty-

month prison term, to be followed by a twenty-year term of

supervised release.

The supervised release portion of the sentence included

various conditions that Medina must follow or face returning to

prison. Medina now challenges two of those conditions as well the

length of the supervised release term. One of the two conditions

restricts Medina from accessing or possessing a wide range of

sexually stimulating material. The other requires Medina to submit

to penile plethysmograph testing -- a particularly intrusive

procedure -- if the sex offender treatment program in which he must

participate as a condition of his supervised release chooses to use

such testing.

We hold that the District Court erred in setting the

length of the supervised release term. We further hold that the

District Court inadequately justified the imposition of the

supervised release conditions that Medina challenges. We therefore

vacate Medina's supervised release sentence term and the conditions

challenged on this appeal, and remand for re-sentencing.

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I.

Medina has a long criminal history, including robbery,

attempted robbery, and (non-domestic) battery convictions. His

only sex offense, and the source of his registration obligations

under SORNA, is a 2008 conviction in Indiana for sexual battery of

a minor. The pre-sentence report's description of the

circumstances of the Indiana offense -- a description Medina did

not dispute -- is very disturbing.

According to the report, Medina's three-year-old

stepdaughter told his then-wife in 2007 that Medina had "'peed' in

her mouth." Medina's then-wife proceeded to ask her three other

children if Medina had "had any inappropriate contact with them."

The report stated that Medina's then-wife learned that Medina had

"fondled" his seven-year-old stepdaughter on "three or four

separate occasions."

Medina ultimately pled guilty to a single count of sexual

battery of a minor. The conviction was based on Medina's abuse of

the seven-year-old stepdaughter. Medina was sentenced to seven-

and-a-half years in prison, of which he served three years before

he was released on probation in July of 2011.

After release on probation, Medina lived in Indiana and

held a job there. On April 29, 2012, however, he quit that job.

Then, on May 3, he failed to report for a polygraph examination

that the terms of his probation required. On May 11, he was

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suspended from Indiana's Sex Offender Treatment Program. Some time

that same month, Medina moved to Puerto Rico.

On January 10, 2013, Medina was arrested in Puerto Rico

for violating SORNA because he had failed to register there as a

sex offender, as he was required to do as a consequence of his

earlier Indiana conviction. See 18 U.S.C. § 2250(a). Two months

later, on April 5, 2013, Medina entered into a plea agreement. The

District Court accepted Medina's plea to the SORNA offense that

same day. On July 8, 2013, the District Court sentenced Medina to

thirty months of incarceration, followed by twenty years of

supervised release.

Medina now appeals to this court.1 He challenges certain

aspects of the supervised release portion of his sentence. We

consider those challenges in turn.

II.

Medina first argues that the District Court erred when it

imposed a supervised release term of twenty years. Medina traces

that error to the District Court's classification of his failure-

to-register offense under SORNA as a "sex offense."

Under the Sentencing Guidelines, a conviction for a "sex

offense" results in a recommended range for a term of supervised

1 Medina's plea agreement included a waiver-of-appeal clause, but the government concedes that Medina never knowingly waived his right to challenge the supervised release term and conditions on appeal since the District Court assured Medina at the plea hearing that such challenges would be preserved.

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release that spans from a lower bound of the statutory minimum of

five years to an upper bound of life. See 18 U.S.C. § 3583(k);

U.S.S.G. § 5D1.2(b)(2). But Medina argues that the guidelines do

not actually treat a SORNA violation as a "sex offense." And thus

Medina argues that, under the guidelines, the actual recommended

term of supervised relief for the SORNA offense is only the

statutory minimum of five years, with no higher maximum term. See

United States v. Goodwin, 717 F.3d 511 , 520 (7th Cir. 2013).

The guidelines are not binding on the District Court.

United States v. Booker, 543 U.S. 220 , 245 (2005). A mistaken

application of the guidelines, however, can constitute a reversible

sentencing error. That is because "[o]nly after a court has

correctly calculated the applicable [guidelines recommendation]

. . . can it properly exercise its discretion to sentence a

defendant within or outside the applicable Guidelines range."

United States v. Millán-Isaac, 749 F.3d 57 , 66 (1st Cir. 2014).

Thus, Medina contends, we must vacate his supervised release

sentence because the District Court mis-classified his SORNA

offense as a "sex offense" and thus committed a guidelines

calculation error.

In determining the appropriate standard of review, we

note that Medina did object to the recommended term of supervised

release set forth in the probation office's pre-sentence report.

That report classified Medina's SORNA offense as a "sex offense."

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That report thus recommended that Medina receive a term of

supervised relief somewhere within a range from five years to life.

Medina did not, however, press that same objection to the District

Court at the sentencing hearing. And Medina failed to do so even

though he had an opportunity to make that objection, and even

though the District Court adopted the same guidelines calculation

as the report.

In consequence, the government argues that we may review

Medina's challenge to the proper classification of his SORNA

offense only under the strict, plain error standard. Medina

disputes that. For purposes of this appeal, however, we may assume

the plain error standard applies without prejudicing Medina.2 And

that is because Medina's challenge succeeds even under that more

onerous standard.

The District Court set the term of supervised release

after calculating the guidelines range for that term to be five

years to life. That calculation was erroneous, as the government

2 This Circuit has never decided what standard of review applies when a defendant objects to a pre-sentence report but does not reassert that objection at sentencing, and other circuits have diverged. Compare United States v. Hurst, 228 F.3d 751 , 760-61 (6th Cir. 2000) (holding that a sentencing court need not address a defendant's objections to a pre-sentence report where the defendant "did not expressly call them to the court's attention during the sentencing hearing") with United States v. Sager, 227 F.3d 1138 , 1148 (9th Cir. 2000) ("It is technically enough, of course, to file a written objection to the [pre-sentence report], but an astute attorney filing such an objection would also raise the issue again at sentencing if it appears to have gone unaddressed.").

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now concedes. The term "sex offense" in section 5D1.2(b) of the

sentencing guidelines does not encompass a SORNA violation for

failing to register as a sex offender. Our reasons for so

concluding are the same as those set forth in the Seventh Circuit

precedent that the government invokes in conceding the District

Court's error. See Goodwin, 717 F.3d at 519-20.

Further, the District Court's contrary interpretation of

the meaning of "sex offense" was -- as the Seventh Circuit also

held in Goodwin, and as the government also now concedes -- "(1) an

error or defect (2) that is clear or obvious (3) affecting the

defendant's substantial rights." Id. at 518. And while the

government does not specifically make the further concession

that the error "seriously affect[ed] the fairness, integrity, or

public reputation of judicial proceedings," Johnson v. United

States, 520 U.S. 461 , 467 (1997) -- the last prong of the plain-

error test -- we believe that the District Court's error

necessarily had that effect on the sentencing, and the government

does not argue otherwise.

By mis-classifying Medina's SORNA offense, the District

Court imposed a supervised release term that it believed fell

within the guidelines-recommended range. In fact, however, the

term imposed was four times longer than the term the guidelines

actually recommend. See Goodwin, 717 F.3d at 520-21 (explaining

the proper calculation, and finding the fourth plain-error prong

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met under similar circumstances); cf. United States v. Farrell, 672

F.3d 27 , 37 (1st Cir. 2012) (finding the fourth prong met where the

government did not argue it was not met, and where the district

court imposed a sentence based on erroneous statutory minimum and

guidelines determinations).

We thus conclude that the District Court did commit plain

error. And, accordingly, we vacate and remand so that the District

Court may take account of the guidelines' actual recommendation

regarding the appropriate term of supervised release for Medina's

SORNA offense.

III.

Medina also challenges two conditions that he must obey

for the duration of his supervised release term, however long it

may turn out to be. In particular, Medina challenges a condition

prohibiting him from possessing or accessing sexually stimulating

materials and a condition mandating his compliance with penile

plethysmograph testing if his sex offender treatment program

requires such testing.

There are two basic kinds of supervised release

conditions. The first kind are mandatory conditions. By operation

of statute, mandatory conditions are automatically imposed in every

case in which a defendant receives supervised release as part of

his sentence. See 18 U.S.C. § 3583(d). The second kind are

special conditions. These conditions are imposed at the discretion

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of the district court. See id. The two conditions that Medina

challenges are of this latter kind.

Although district courts have significant discretion to

impose special conditions of supervised release, that discretion is

not unlimited. A district court may impose a special condition

only if the district court first determines that the condition:

(1) is reasonably related to the factors set forth in [18 U.S.C. §] 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D);

(2) involves no greater deprivation of liberty than is reasonably necessary for the purposes set forth in [18 U.S.C. §] 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D); and

(3) is consistent with any pertinent policy statements issued by the Sentencing Commission pursuant to 28 U.S.C. [§] 994(a).

18 U.S.C. § 3583(d).

In this way, the governing statute directs district

courts, before imposing a special condition, to take account of

"the nature and circumstances of the offense and the history and

characteristics of the defendant," id. § 3553(a)(1), the need "to

afford adequate deterrence to criminal conduct," id.

§ 3553(a)(2)(B), the need "to protect the public from further

crimes of the defendant," id. § 3553(a)(2)(C), and the need "to

provide the defendant with needed educational or vocational

training, medical care, or other correctional treatment in the most

effective manner," id. § 3553(a)(2)(D). By requiring consideration

of these factors, the statute ensures that district courts will

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impose a special condition only if the condition will further at

least one of "the three legitimate statutory purposes of

deterrence, protection of the public, and rehabilitation."3 United

States v. Gementera, 379 F.3d 596 , 600 (9th Cir. 2004); accord

United States v. York, 357 F.3d 14 , 20 (1st Cir. 2004).

But the statute does more than instruct district courts

to ensure a "reasonabl[e] relat[ion]" between the condition and the

sentencing goals the condition is intended to serve with respect to

the individual defendant. 18 U.S.C. § 3583(d). The statute also

requires district courts to ensure the condition "involves no

greater deprivation of liberty than is reasonably necessary" given

who the defendant is, the defendant's offense and criminal history,

and the ends of supervised release.4 See United States v. Roy, 438

3 The retributive purpose, which sentencing generally may also serve, is reflected in the following sentencing factor set forth in 18 U.S.C. § 3553(a)(2)(A): "the need for the sentence imposed . . . to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense." See Tapia v. United States, 131 S. Ct. 2382 , 2387-88 (2011) (explaining that § 3553(a)(2)(A) concerns "retribution"). But the statute governing the imposition of a special condition of supervised release specifically omits this factor from the ones that a district court may consider in imposing a special condition. See 18 U.S.C. § 3583(d)(1); Tapia, 131 S. Ct. at 2388 ("[A] court may not take account of retribution (the first purpose listed in § 3553(a)(2)) when imposing a term of supervised release."). That omission reflects the distinct purposes that supervised release aims to accomplish. 4 The statute additionally requires consideration of "any pertinent policy statements issued by the Sentencing Commission," 18 U.S.C. § 3583(d)(3), but the parties identify no policy statements that are pertinent to the issues before us.

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F.3d 140, 144 (1st Cir. 2006); United States v. Smith, 436 F.3d

307 , 311 (1st Cir. 2006). And finally, our precedent further

requires that the special condition "have adequate evidentiary

support in the record." Roy, 438 F.3d at 144.

With that framework in mind, we now consider the two

special conditions that are at issue in this appeal. With respect

to each, Medina contends that the District Court failed to provide

the statutorily required justification.

IV.

We first address Medina's challenge to the District

Court's imposition of the special condition concerning sexually

stimulating material. That condition provides that Medina may not:

view, use, possess, purchase, distribute and/or subscribe to any form of pornography, erotica or sexually stimulating visual or auditory material, electronic media, computer programs or services including but not limited to videos, movies, pictures, magazines, literature, books, or other products depicting images of nude adults or minors in a sexually explicit manner.

The condition further forbids Medina from entering any location

where such material can be accessed, and from "accessing any

material that relates to the activity in which the defendant was

engaged in committing the instant offense, namely child

pornography."5

5 Medina does not challenge this condition as vague, and so we do not express any opinion on whether it presents a vagueness

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Medina challenges this condition as a whole. But Medina

first argues that the last sentence of this condition must be

vacated. He argues that the text of this last sentence reveals

that it is designed for a defendant who has been convicted of a

"child pornography" offense, a type of offense for which Medina was

not even charged. The government concedes as much -- in part, no

doubt, because striking this portion of the condition has no

practical consequence. That is because a separate, mandatory

condition of supervised release already prohibited Medina from

committing "another Federal, State, or local crime during the term

of supervision." 18 U.S.C. § 3583(d). That condition thus

necessarily prohibited Medina from possessing illegal material,

including, for example, child pornography. See 18 U.S.C. § 2252.

With that portion of the condition out of the way, our

attention focuses on the remainder of the condition, which would

prohibit Medina from possessing and accessing "any form of

pornography, erotica or sexually stimulating visual or auditory

material." In practical effect, this condition restricts only

"legal material involving consenting adults," United States v.

problem. Cf. United States v. Perazza-Mercado, 553 F.3d 65 , 81 (1st Cir. 2009) (Howard, J., dissenting in part) (raising vagueness concerns with respect to a condition that prohibited a defendant from possessing "any kind of pornographic material").

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Perazza-Mercado, 553 F.3d 65 , 76 (1st Cir. 2009), and the

government does not argue otherwise to us.6

The government argues, as it did with respect to Medina's

challenge to the length of his supervised release term, that we may

review the imposition of this condition only for plain error and

not for abuse of discretion as would otherwise be the case. See

id. at 69. Medina responds that he objected when the probation

office recommended the condition in the pre-sentence report.

6 In their briefs, Medina and the government address their arguments to the validity of the special condition as a whole. They do not separately discuss the parts of the condition that refer to "erotica" and "sexually stimulating visual and auditory material." Neither party therefore addresses whether the condition, in addition to prohibiting Medina from possessing or accessing adult pornography, also prohibits Medina from possessing or accessing otherwise legal erotic materials involving simulated sexual depictions of children, such as "virtual child pornography." See Ashcroft v. Free Speech Coalition, 535 U.S. 234 , 250-56 (2002) (holding unconstitutional a criminal prohibition on "virtual child pornography" which does not involve images of actual children). In the absence of briefing from the parties, we will not address here whether the condition is properly interpreted to prohibit Medina from possessing such material, nor whether that particular aspect of the condition might be adequately explained on this record by the nature of Medina's prior offense. See Perazza-Mercado, 553 F.3d at 74-79 (vacating a condition that prohibited "possession of any kind of pornographic material" without addressing this issue). Likewise, the parties' briefs do not separately address the portion of the condition prohibiting Medina from entering locations where sexually stimulating materials may be accessed. That portion of the condition was not present in Perazza-Mercado, and it may raise distinct issues. Cf. id. at 79-80 (Howard J., dissenting) (expressing concern that "allowing unfettered access to adult pornography could lead [a defendant] . . . to places where opportunities may exist to commit other crimes against minors"). Given the parties' lack of attention to those aspects of this supervised release condition, we will leave them to the District Court on remand.

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However, Medina did not raise his objection at the sentencing

hearing, despite the opportunity that he had to do so and despite

the fact that he raised other issues. Thus, here, too, we will

assume that the plain error standard applies, as, once again, we

find reversible error even under that more demanding standard.

In challenging the condition, Medina relies primarily on

our decision in Perazza-Mercado. There, we vacated on plain-error

review a supervised release condition that imposed a complete ban

on a defendant's possession of pornographic materials. We

explained that a district court must "provide a reasoned and

case-specific explanation for the sentence it imposes." Id. at 75

(quoting United States v. Gilman, 478 F.3d 440 , 446 (1st Cir.

2007)). And we concluded that the district court had failed to do

so. See id.

We did observe in Perazza-Mercado that "'a court's

reasoning can often be inferred' after an examination of the

record." Id. (quoting United States v. Jiménez-Beltre, 440 F.3d

514 , 519 (1st Cir. 2006) (en banc)). But we concluded that no

adequate explanation for the pornography restriction could be

inferred from the record. Id. at 76. In particular, we observed,

there was no evidence in the record sufficient to support the

conclusion that pornography had "contributed to [Perazza's] offense

or would be likely to do so in the future." Id. That was so even

though Perazza's crime of conviction ("knowingly engaging in sexual

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contact with a female under the age of twelve") and admitted past

behavior (which included a "pattern of illicit conduct toward young

girls") were "cause for great concern." Id. at 66, 76. We

therefore concluded that the district court had committed plain

error in imposing the condition. Id. at 75.

Here, we are bound by Perazza-Mercado. The District

Court did not expressly justify the condition in terms of the

statutory considerations of deterrence, protection of the public,

and rehabilitation -- or in any other terms. See id. Nor can the

District Court's unarticulated reasoning "'be inferred' after an

examination of the record." Id. As in Perazza-Mercado, "there is

no evidence in the record" to indicate that such material

"contributed to [Medina's] offense or would be likely" to

contribute to recidivism in the future given Medina's particular

history and characteristics. Id. at 76.

The probation officer here did recommend the condition in

the pre-sentence report, unlike in Perazza-Mercado, where the

report did not mention such a condition at all, see id. at 74. But

the probation officer provided no explanation for the condition --

not even in response to Medina's objection. She simply left the

decision whether to impose the condition "to the sound discretion

of the [District] Court."

Nor, under Perazza-Mercado, can the required explanation

be derived from Medina's criminal history. Medina's failure-to-

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register offense did not itself, quite obviously, involve the use

of pornographic or other sexually stimulating materials. And,

revolting as the actions that led to Medina's 2008 conviction are,

the record here, under the controlling reasoning of Perazza-

Mercado, fails to reveal a link between Medina's commission of that

offense and the prohibited adult materials. See id. at 66, 76.

The government responds by identifying one distinction

between this case and Perazza-Mercado. There, we noted that "there

was no suggestion in the [pre-sentence report] or at sentencing

that appellant had abused or even possessed pornography in the

past." Id. at 76 (emphasis added). Here, by contrast, as the

government points out, the pre-sentence report does contain a

reference to the defendant's use of pornography at approximately

the same time as his underlying sex offense. Specifically, the

report notes that Medina's ex-wife "indicated that they often

watched pornography together while having intercourse."

But nothing in the record links this single reference,

involving lawful adult behavior, to the criminal acts that serve as

the basis for the special supervised release condition. See United

States v. Ramos, 763 F.3d 45 , 64 n.28 (1st Cir. 2014) (declining to

distinguish Perazza-Mercado based on a similar reference to adult

pornography in the pre-sentence report, because "nothing in the

record justifies, as far as we can tell, the conclusion that

viewing adult pornography was a habit that 'contributed to [the

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defendant's] offense or would be likely to do so in the future'").

Nor can it suffice for the government to assert, as it does, that

the condition may be inferentially justified because there is a

general correspondence between sex offender recidivism and the use

of pornography. If such an asserted correspondence sufficed, we

would not have invalidated the pornography ban in Perazza-Mercado.

See 553 F.3d at 78. We thus conclude that, given our controlling

precedent, the record before us "simply does not support the

conclusion that the condition would promote the goals of supervised

release without effecting a greater deprivation of liberty than

reasonably necessary to achieve those goals." Id. at 75.

The government's final attempt to defend the condition

also fails. The government contends that our decision in United

States v. Sebastian, 612 F.3d 47 (1st Cir. 2010), indicates that

the District Court was not obliged to offer more of an explanation

for this special condition than was given. But that case, unlike

this one and unlike Perazza-Mercado, did not involve a "total ban

on . . . possession of any pornography in the home." Id. at 52.

The condition in Sebastian instead prohibited possession of

pornography only "if [Sebastian's] [sex offender] treatment program

mandated such a ban." Id. Sebastian thus explained that this

"conditional limitation" was "hardly the same" as the blanket ban

in Perazza-Mercado, and did "little more than require Sebastian to

follow the rules of any program he may be required to attend" as

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part of his supervised release. Id. In consequence, we concluded

that the District Court's explanatory obligations had been met, as

they were not the same as they had been in Perazza-Mercado. Id.

Here, though, the ban is total, as in Perazza-Mercado,

rather than conditioned on the requirements imposed by a sex

offender treatment program, as in Sebastian. And thus, we believe,

as we recently held in a similar case, that Perazza-Mercado sets

forth the appropriate standard for determining whether the

condition is justified. See Ramos, 763 F.3d at 64 n.29 (following

Perazza-Mercado, and distinguishing Sebastian, where the case

involved a total ban on pornography possession).

Under that controlling precedent, the imposition of this

condition, on this record, is plain error. See id. at 64; Perazza-

Mercado, 553 F.3d at 76. There "may well be a reason to impose a

pornography ban" in this case. Perazza-Mercado, 553 F.3d at 76.

But if so, the District Court has not yet provided it. Thus, we

vacate the District Court's imposition of this special condition.

V.

We now turn to Medina's remaining challenge. Medina

objects to the District Court's requirement that he submit to

penile plethysmograph, or PPG, testing, if the sex offender

treatment program he must participate in as a condition of his

supervised release requires such testing.

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In bringing this challenge, Medina does not contest the

requirement that he undergo sex offender treatment as a special

condition of supervised release. See United States v. Morales-

Cruz, 712 F.3d 71 , 75-76 (1st Cir. 2013) (finding no abuse of

discretion in that case in the imposition of a sex offender

treatment special condition in connection with a SORNA conviction).

And the treatment condition that the District Court imposed does

not require, by its terms, that the sex offender treatment program

Medina must complete actually use PPG testing.7 In fact, the

condition does not address at all how the treatment program may use

such testing. But the condition does specifically oblige Medina to

comply with PPG testing if his particular treatment program chooses

to order such testing. And it is that mandatory compliance

obligation to which Medina objects.

PPG testing "involves placing a pressure-sensitive device

around a man's penis, presenting him with an array of sexually

stimulating images, and determining his level of sexual attraction

by measuring minute changes in his erectile responses." United

7 The condition provides: The defendant shall undergo a sex-offense-specific evaluation and participate in a sex offender treatment/and or [sic] mental health program arranged by the Probation Officer. The defendant shall abide by all rules, requirements, and conditions of the sex offender treatment program(s), including submission to testing; such as polygraph, penile plethysmograph (PPG), Abel Assessments, visual reaction testing or any other testing available at the time of his release.

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States v. Weber, 451 F.3d 552 , 554 (9th Cir. 2006) (quoting Jason

R. Odeshoo, Of Penology and Perversity: The Use of Penile

Plethysmography on Convicted Child Sex Offenders, 14 Temp. Pol. &

Civ. Rts. L. Rev. 1, 2 (2004)). Thus, where the pornography-ban

condition seeks to limit Medina's viewing of pornographic material,

PPG testing affirmatively requires it, and in extremely invasive

circumstances. See id. Testing may take as long as several hours

to complete per session. Id. at 563.

The testing is controversial, both as to whether it is

effective and as to whether it is unduly invasive and thus

degrading. See id. And, in consequence of such concerns, two of

our sister circuits have imposed substantial explanatory

obligations on district courts that choose to mandate submission to

PPG testing if prescribed by a required sex offender treatment

program. See United States v. McLaurin, 731 F.3d 258 , 263 (2d Cir.

2013); Weber, 451 F.3d at 568-69.

Medina relies on these precedents in contending that the

District Court failed to offer a sufficient justification for the

PPG condition here. Before directly addressing that contention,

however, we must first address the government's argument that this

Circuit's precedent limits the scope of our review until such time

as the treatment program actually requires Medina to submit to PPG

testing.

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A.

In arguing that our review is limited, the government

does not dispute that Medina properly preserved his objection to

this condition. Medina first objected to the pre-sentence report's

recommendation that he be required to submit to PPG testing if

ordered to do so as part of a sex offender treatment program.

Medina lodged that objection "on Daubert/Frye unreliability

standards"8 as well as by contending that PPG testing "is

physically invasive and scientifically questionable." Medina went

on to explain that such testing "is degrading and violates the

defendant's right to be free from cruel, degrading, inhuman

treatment and his right to privacy and to be protected from medical

abuse."

Then, at sentencing, Medina's counsel renewed the

objection. Medina's counsel emphasized that she "object[ed] to the

imposition of that treatment, in particular to the PPG. We

8 The references presumably were to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), which set forth the inquiry into scientific reliability that a district court must undertake before admitting expert testimony into evidence. Although neither Daubert nor Frye has a direct application to conditions of supervised release, the defendant appears to have invoked those cases as a shorthand way of attacking the reliability of PPG testing. And the Ninth Circuit has observed that "[c]ourts have uniformly declared that the results of [PPG] tests are 'inadmissible as evidence'" under the Daubert standard because "'there are no accepted standards for this test in the scientific community.'" Weber, 451 F.3d at 565 n.15 (quoting Doe ex rel. Rudy–Glanzer v. Glanzer, 232 F.3d 1258 , 1266 (9th Cir. 2000)).

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understand it's invasive, it's humiliating, it hasn't even passed

the Daubert standard."

Confronted with a timely objection to a special condition

of supervised release, we ordinarily would review a district

court's imposition of that aspect of the sentence for abuse of

discretion. See Perazza-Mercado, 553 F.3d at 69. But the

government argues that Medina's burden to show error in the

imposition of the sentence is even greater here because there is

necessarily uncertainty over how and why PPG testing would actually

be used on Medina -- if, that is, it ever is used at all.

Under our decision in Sebastian, the government argues,

the contingent nature of this condition requires Medina to show

that PPG testing is "facially unreasonable" in order to invalidate

it on direct appeal. 612 F.3d at 52. And that means, the

government further contends, that Medina's challenge must fail for

one of two reasons.

First, the government argues that the challenge is

premature because the actual application of the testing will occur,

if at all, only in the future, and will depend on the procedures

that the sex offender treatment program chooses to use. Second,

the government argues that, to the extent the challenge is not

premature, it is still without merit because PPG testing is "widely

used for evaluating and treating sex offenders like" Medina and

thus the requirement to submit to it if prescribed by a treatment

-22-

program cannot possibly be deemed unreasonable on its face at

present. But we do not find persuasive either of the government's

contentions about why Medina's challenge necessarily fails under

that "facially unreasonable" standard.

1.

The government does not use the word "ripeness" in making

the argument that Medina's challenge is premature. But the

argument would seem to be a close cousin of a ripeness argument

that two circuits have accepted in this context. See United States

v. Rhodes, 552 F.3d 624 (7th Cir. 2009); United States v. Lee, 502

F.3d 447 (6th Cir. 2007).

Those circuits emphasized that contingent PPG-testing

conditions like this one "implicate[] only the potential use of a

penile plethysmograph," and that "there is no guarantee that [the

defendant] will ever be subject to plethysmograph testing." Lee,

502 F.3d at 450; see also Rhodes, 552 F.3d at 628. Moreover, the

Sixth and Seventh Circuits emphasized that the defendants in those

cases were still serving long prison sentences and would not

potentially face PPG testing for many years, see Rhodes, 552 F.3d

at 628 (at least eight-and-a-half years); Lee, 502 F.3d at 450 (not

before 2021), and thus that scientific or legal developments might

render the testing an anachronism by the time the defendants were

released from prison, see Rhodes, 552 F.3d at 628 ("[T]he

development of science or the law may render the PPG testing

-23-

irrelevant or even illegal, or maybe the movement will be in a

different direction altogether . . . ."); Lee, 502 F.3d at 451 ("We

cannot speculate on what will happen by 2021 with respect to penile

plethysmograph testing. For example, by then, the test may be held

to violate due process rights. Or, its reliability will have been

debunked. Or, perhaps a less intrusive test will have replaced

it.").

But this Circuit concluded in United States v. Davis, 242

F.3d 49 , 51 (1st Cir. 2001) (per curium), that a challenge to even

a contingent supervised release condition was ripe, and "not

hypothetical," where the judgment explicitly spelled out the

condition and the defendant challenged "the special condition

itself, not its application or enforcement." Id. We explained

that "[t]he judgment imposing sentence, of which the challenged

special condition is a part, is a final judgment." Id. And we

permitted the challenge to proceed even though the condition at

issue merely required the defendant to cooperate with hypothetical

future "investigations and interviews" by his probation officer,

noting that "Davis's term of supervised release will commence in

less than two months." Id. at 50-51.

We conclude the challenge in this case, like the one in

Davis, is ripe. As in Davis, the judgment imposing the sentence in

this case expressly spells out the condition that the defendant

-24-

challenges.9 Moreover, Medina was sentenced to thirty months in

prison in July of 2013. That means he, too, could be subject to

the condition he challenges in the near term, when he is released

from prison and the treatment program commences.

Finally, consistent with the requirement imposed by

Sebastian's "facially unreasonable" standard, Medina does not argue

that PPG testing is impermissible because it will be used against

him in some unusually inappropriate or ineffective way. See 612

F.3d at 52. And thus his challenge does not depend on the

particular way in which his treatment program may choose to use PPG

testing. Medina instead contends that PPG testing is so inherently

invasive and unreliable that the requirement that he submit to its

use, on the record before the District Court, is unlawful however

the testing may be used. Cf. Davis, 242 F.3d at 51-52 (upholding

a conditional condition on direct appeal since it had "obvious

relevance" to the defendant's "probationary status" and would not

"necessarily" raise the problems that the defendant was concerned

about); Sebastian, 612 F.3d at 52 (emphasizing that the defendant

9 Because the conditional condition challenged in this case, as in Davis, is explicitly spelled out in and allowed by the District Court's judgment, we need not address here the distinct ripeness issues that could arise if a defendant sought to challenge the possibility of PPG testing in connection with a special condition that required only that the defendant comply with a sex offender treatment program's rules without discussing PPG testing in particular. Cf. Weber, 451 F.3d at 561 n.12 (distinguishing a case involving a special condition requiring only compliance with a program's rules and not mentioning PPG testing specifically).

-25-

had a limited basis on which to challenge a contingent condition on

direct review, as "what [pornography] ban, if any, may be imposed

is uncertain"). And, indeed, Sebastian applied the "facially

unreasonable" standard to adjudicate on direct review such a facial

challenge to a contingent condition of supervised release, even

though that condition would not take effect for another decade.

See 617 F.3d at 52 (finding the condition adequately justified).10

2.

That leaves only the government's argument that

Sebastian's "facially unreasonable" standard requires that we

reject Medina's facial challenge as meritless due to the

"widespread" use of PPG testing in sex offender treatment programs

and the fact that Medina will be forced to submit to such testing,

if at all, only in connection with such a program. But we do not

find this argument for rejecting Medina's challenge persuasive

either.

10 Of course, as Sebastian shows, the requirement that the defendant challenge the condition itself and not the nature of its future implementation may mean that a defendant's "facially unreasonable" challenge to a contingent condition will fail. See Sebastian, 612 F.3d at 52. And when that occurs, "[i]t remains open to [the defendant] to challenge specific applications of" the contingent condition "when actually imposed in the future." Id. (citing York, 357 F.3d at 23); see also 18 U.S.C. § 3583(e)(2) (allowing a district court to "modify, reduce, or enlarge the conditions of supervised release, at any time prior to the expiration or termination of the term of supervised release"). But the availability of that distinct form of challenge to a condition of supervised release provides no basis for denying Medina the right to challenge this significant part of his sentence on direct appeal. See Weber, 451 F.3d at 569-70.

-26-

Sebastian's application of the "facially unreasonable"

standard did take account of the fact that the challenged condition

might facilitate a sex offender treatment program. See 612 F.3d at

52. And Sebastian further took account of the importance of

allowing the district court to mandate compliance with such a

treatment program in advance. Id. Applying those considerations,

Sebastian concluded (on review for plain error) that a limited

justification rooted in the value of ensuring compliance with

treatment-program rules sufficed to uphold the conditionally

imposed pornography ban there at issue, even though there was a

factual dispute about the efficacy of the use of such bans in

general. See id.

But Sebastian did not hold that a minimal justification

relating to compliance with treatment-program rules would suffice

to ward off a challenge to the facial reasonableness of every

condition connected with a treatment program that a district court

might choose to impose, no matter its nature. See id. And Medina

contends that PPG testing raises distinct issues because it is so

invasive and of such questionable reliability. There is no

question that, in combination, these concerns do make his challenge

to PPG testing distinguishable from the challenge to the condition

at issue in Sebastian itself. For that reason, we do not believe

Sebastian compels us to reject Medina's challenge, even if, as the

government asserts, PPG testing is widely used in sex offender

-27-

treatment programs. Instead, Medina's challenge must be confronted

on its own terms and in light of the particular arguments the

government makes about the reasonableness of this condition on the

record in this case.

Likewise, the case on which Sebastian relied in setting

forth the "facially unreasonable" standard -- United States v.

York, 357 F.3d 14 , 23 (1st Cir. 2004) -- does not dictate rejection

of Medina's facial challenge to this condition. In rejecting a

challenge to a requirement that the defendant in that case submit

to polygraph testing as part of his supervised release, York

focused largely on considerations unique to polygraph testing and

on arguments the government advanced about the condition's

reasonableness that are not relevant here. See id. For example,

in rejecting the defendant's challenge to polygraphy as "inherently

unreliable," York emphasized that even an unreliable lie-detector

test could deter the defendant from lying and thus further the

goals of supervised release. Id.

In this case, however, the government (for good reason)

makes no similar contention that PPG testing would be useful in

treating Medina even assuming that Medina was right that such

testing is both unusually invasive and unreliable. Thus, the

particular rationale that York relied on to uphold the polygraph

condition's facial reasonableness in that case is not applicable

here.

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Finally, we emphasize, that in Sebastian, the defendant

had made no objection to the condition below. 612 F.3d at 50. We

thus applied the strict plain error standard to the defendant's

contention that the pornography-ban condition was facially

unreasonable. Id. And we referenced that strict standard in

explaining why we saw no need to resolve the "empirical question"

of whether pornography bans assist in sex offender treatment. See

id. at 52. Similarly, in York, our review of the reasonableness of

the polygraph condition also took place without there having been

"[a] timely objection and the creation of a record [that] would

have permitted both the district court and this court to review

York's claims with the benefit of that information." 357 F.3d at

19.

By contrast, here the defendant did make a timely

objection that the contingent supervised release condition was

inherently humiliating and unreliable and thus impermissible -- an

objection that clearly asserted the condition was unreasonable on

its face. Our review, therefore, is not circumscribed in this

case, as it was in Sebastian and York, by the defendant's lateness

in raising the challenge.

Thus, for all of these reasons, we do not believe our

prior precedent, whether Sebastian or York, forecloses Medina's

challenge to the PPG aspect of the supervised release portion of

-29-

his sentence. And so we turn to the merits of his challenge to the

PPG testing condition.

B.

Our Circuit has not yet decided a case involving a

challenge to the imposition of PPG testing as part of a condition

of supervised release -- whether contingent on a treatment

program's prescription or otherwise. And thus we have not

considered before whether such a condition may be successfully

challenged under Sebastian's "facially unreasonable" standard. But

other circuits have addressed whether and when this type of

condition may be imposed, and thus their analysis informs our

assessment of Medina's facial challenge to the condition.

The Fourth Circuit has held that the "plethysmograph test

is 'useful for treatment of sex offenders,'" and thus that a

district court "clearly act[s] within its discretion in imposing"

it as a condition, even, it seems, without offering much of an

explanation for doing so. United States v. Dotson, 324 F.3d 256 ,

261 (4th Cir. 2003) (quoting United States v. Powers, 59 F.3d 1460 ,

1471 (4th Cir. 1995)). But while the government urges us to follow

Dotson here, and thus to reject Medina's facial challenge to the

condition, two other circuits have taken a very different approach.

And their analyses support the conclusion that, at least on this

record, the condition at issue in this case is facially

unreasonable.

-30-

The Second Circuit, in United States v. McLaurin,

identified significant constitutional concerns with PPG testing and

thus required that a district court satisfy strict scrutiny before

imposing a PPG testing obligation as a supervised release

condition.11 731 F.3d 258 , 261 (2d Cir. 2013). The Second Circuit

did so, moreover, even though the condition did not directly

mandate PPG testing and instead made submission to such testing

contingent on the treatment program's decision to require it. Id.

Seeing a "clear distinction between penis measurement and

other conditions of supervised release," id. at 264, the court held

that PPG testing is so invasive that "it could be justified only if

it is narrowly tailored to serve a compelling government interest,"

id. at 261. McLaurin explained that "the procedure inflicts the

obviously substantial humiliation of having the size and rigidity

of one's penis measured and monitored by the government under the

threat of reincarceration for a failure to fully cooperate." Id.

at 263. Thus, before requiring compliance with PPG testing

prescribed by a treatment program, McLaurin held that a district

court must, "at a minimum, make findings, sufficiently informative

11 Because we conclude that the District Court's justification for the condition in this case was inadequate as a statutory matter, we need not address the existence of a separate, substantive due process limitation on supervised release conditions. Cf. United States v. Smith, 436 F.3d 307 , 310 (1st Cir. 2006) ("It is beyond hope of contradiction that those who are convicted of crimes against society lose a measure of constitutional protection.").

-31-

and defendant-specific for appellate review, that the test is

therapeutically beneficial, that its benefits substantially

outweigh any costs to the subject's dignity, and that no less

intrusive alternative exists." Id.

The Ninth Circuit reached a similar result in United

States v. Weber, although it relied exclusively on the

justificatory requirements imposed by the statute governing the

imposition of special conditions of supervised release. 451 F.3d

at 552-53 (citing 18 U.S.C. § 3583(d)). The court emphasized that

"[p]lethysmograph testing not only encompasses a physical intrusion

but a mental one, involving not only a measure of the subject's

genitalia but a probing of his innermost thoughts as well." Id. at

562-63. Because such testing is "exceptionally intrusive in nature

and duration," the Ninth Circuit held that "the procedure

implicates a particularly significant liberty interest." Id. at

563. The Ninth Circuit further explained that there were serious

concerns about both the testing's reliability and efficacy,

including its "susceptibility to manipulation via faking," id. at

564, and the "lack[ of] 'uniform administration and scoring

guidelines,'" id. at 565 (quoting Walter T. Simon & Peter G.W.

Schouten, The Plethysmograph Reconsidered: Comments on Barker and

Howell, 21 Bull. Am. Acad. Psychiatry & L. 505, 510 (1993)).

On the basis of those concerns, the Ninth Circuit

construed the statute governing the imposition of special

-32-

conditions of supervised release to require "heightened procedural

protections" before a district court could mandate submission to

PPG testing if a sex offender treatment program chose to use the

procedure. Id. at 570. These protections included the requirement

that the district court undertake a "consideration of evidence that

plethysmograph testing is reasonably necessary for the particular

defendant based upon his specific psychological profile." Id. at

569-70.

Weber further explained that, under the governing

statute, a district court needed to give consideration to available

alternatives to PPG testing, such as self-reporting interviews,

polygraph testing, and "Abel testing," which measures the amount of

time a defendant looks at particular photographs. Id. at 567-68.

And finally, Weber explained that, before imposing such a

condition, the district court must "support its decision on the

record with record evidence that the condition of supervised

release sought to be imposed is 'necessary to accomplish one or

more of the factors listed in § 3583(d)(1)' and 'involves no

greater deprivation of liberty than is reasonably necessary.'"12

Id. at 561 (quoting United States v. Williams, 356 F.3d 1045 , 1057

(9th Cir. 2004)).

12 Judge Noonan, who concurred, would have gone further "to hold the Orwellian procedure at issue to be always a violation of the personal dignity of which prisoners are not deprived." Weber, 451 F.3d at 570 (Noonan, J., concurring).

-33-

The concerns raised by the Second and Ninth Circuits

accord with those we have previously raised about PPG testing,

although we raised them outside the context of a supervised release

condition mandating sex offender treatment. In two cases in the

1990s, we addressed the use of PPG testing as a prerequisite for

continued public employment for employees who came under suspicion

for, respectively, sexually abusing children and possessing child

pornography. See Berthiaume v. Caron, 142 F.3d 12 (1st Cir. 1998);

Harrington v. Almy, 977 F.2d 37 (1st Cir. 1992). And, in doing so,

we acknowledged in each case the unusually invasive nature of such

testing and the debate over its reliability. Berthiaume, 142 F.3d

at 17; Harrington, 977 F.2d at 44.

In Harrington, we described the practice as involving

"bodily manipulation of the most intimate sort," and explained that

"[o]ne does not have to cultivate particularly delicate

sensibilities to believe degrading the process of having a strain

gauge strapped to an individual's genitals while sexually explicit

pictures are displayed in an effort to determine his sexual arousal

patterns." Harrington, 977 F.2d at 44. We also remarked on the

lack of evidence regarding both "the procedure's reliability" and

the availability of any "less intrusive means of obtaining the

relevant information." Id. We thus held that it was a jury

question whether the testing requirement had violated a public

employee's constitutional rights such that the employee was

-34-

entitled to damages. Id. And the Second and Ninth Circuits relied

on Harrington in vacating PPG-testing supervised release

conditions. See McLaurin, 731 F.3d at 261; Weber, 451 F.3d at 563.

In Berthiaume, we did back away somewhat from the

conclusion in Harrington about the plaintiff's right to damages

based on PPG testing. See Berthiaume, 142 F.3d at 15-17. We

concluded that PPG testing's acceptance by some in the treatment

community at that time entitled a public official, who was a

layperson, to qualified immunity from being liable for damages.

Id. at 18. But we explained that it was "highly pertinent" that

the plaintiff there had, to some extent, consented to the test.

Id. And, we were careful to say that "[f]orcible administration"

of PPG testing "would be an entirely different case." Id.

C.

Here, we are confronted with the "[f]orcible

administration" of PPG testing, id., as we are reviewing a

challenge involving a defendant's forced submission to such testing

in connection with a criminal sentence. And now faced with such a

challenge to PPG testing, we conclude that the Second and Ninth

Circuits were right to require a district court to provide a

substantial justification before making submission to PPG testing

part of a condition of supervised release. And we further conclude

that, absent such a justification, the condition is facially

unreasonable.

-35-

In reaching this conclusion, we, like the Ninth Circuit,

are not prepared to "say categorically that, despite the questions

of reliability, [PPG] testing can never reasonably" be imposed as

a special condition of supervised release. Weber, 451 F.3d at 556.

But, like the Second Circuit, we "see a clear distinction" between

the invasiveness of PPG testing "and other conditions of supervised

release." McLaurin, 731 F.3d at 264. And the disputes regarding

the procedure's reliability reinforce the concern raised by its

distinctive invasiveness and unusual physical intrusion into an

individual's most intimate realm. See Weber, 451 F.3d 564-65.

We thus conclude that the condition in this case cannot

be deemed reasonable merely because of the general interest in

ensuring in advance that a treatment program's rules will be

followed. Nor can the condition be deemed reasonable simply

because the condition concerns a procedure that arguably may

facilitate the treatment program.

Instead, in order for the condition to be deemed facially

reasonable, district courts must provide a more substantial

justification, at least once a defendant objects. See 18 U.S.C.

§ 3583(d)(2) (mandating that special conditions "involve[] no

greater deprivation of liberty than is reasonably necessary"); see

also United States v. Malenya, 736 F.3d 554 , 560 (D.C. Cir. 2013)

(explaining that § 3583(d)(2) requires "balancing" the sentencing

"goals against the defendant's liberty," and vacating a set of

-36-

challenged conditions); id. at 566 (Kavanaugh, J., dissenting)

(agreeing with the majority that PPG testing in particular

"implicates significant liberty interests and would require, at a

minimum, a more substantial justification than other typical

conditions of supervised release," but disagreeing with the vacatur

of the other challenged conditions). Specifically, in such

circumstance, a district court may not impose the condition unless

it can justify it through "a thorough, on-the-record inquiry into

whether the degree of intrusion caused by such testing is

reasonably necessary 'to accomplish one or more of the factors

listed in § 3583(d)(1)' and 'involves no greater deprivation of

liberty than is reasonably necessary,' given the available

alternatives." Weber, 451 F.3d at 568-69 (quoting Williams, 356

F.3d at 1057).

In conducting that inquiry, district courts must explain

why the imposition of the PPG testing condition would be reasonable

given the individual characteristics of the particular defendant

who would be subject to the condition. See Weber, 451 F.3d at 569-

70. And district courts must base that justification on "adequate

evidentiary support in the record." Roy, 438 F.3d at 144. At

least when confronted with a defendant's objection, we will not

infer a district court's unexpressed justification for this

particularly fraught condition from the record, as we have done

with regard to other conditions. See Perazza-Mercado, 553 F.3d at

-37-

75 (explaining that "'there are limits' to our willingness to

supply our own justification for a particular sentence" (quoting

United States v. Gillman, 478 F.3d 440 , 446 (1st Cir. 2007))).

D.

In this case, the District Court made no effort to

respond seriously and on the record to Medina's objections to the

PPG testing condition. The District Court failed to do so even

though Medina apprised first the probation office and then the

District Court that he had serious concerns about the reliability

of PPG testing and about its degrading nature. Instead, when

Medina's counsel objected to the requirement to comply with a

treatment program decision to use PPG testing, the District Court's

response was curt. "The PPGs and all that. Yes, I am going to

allow that. That's for sure." Medina's counsel then responded:

[Medina's Counsel]: Okay. And just for purposes of the[] record, we object to the imposition of that treatment, in particular to the PPG. We understand it's invasive, it's humiliating, it hasn't even passed the Daubert standard.

THE COURT: What he has done in his life is humiliating.

[Medina's Counsel]: Excuse me?

THE COURT: What he has done in his life is humiliating to victims. Now we're talking about humiliating him.

The District Court did not then elaborate on this unusually

dismissive response.

-38-

The District Court thus said nothing specific about the

required statutory considerations of deterrence, protection of the

public, and rehabilitation in imposing the PPG condition. But see

18 U.S.C. §§ 3553(a), 3583(d). And, similarly, the District Court

did not address whether the condition "involve[d] no greater

deprivation of liberty than [was] reasonably necessary to" promote

the statutory factors of deterrence, protection of the public, and

rehabilitation, as related to the characteristics of the defendant

and his criminal history. Id. § 3583(d). Nor did the District

Court engage in an evidentiary inquiry into any of the relevant

considerations or point to anything in the record that could have

supplied an evidentiary basis for its imposition of the condition.

See Roy, 438 F.3d at 144 (requiring "adequate evidentiary support

in the record"). We thus vacate the imposition of the PPG testing

portion of this special condition of supervised release, as in the

absence of an on-the-record explanation for it, the condition was

unreasonable on its face.

On remand, we emphasize, any decision to reimpose the PPG

testing condition would require further factual development to show

its reasonableness. The record presently contains no evidence that

would support the sweeping judgment that the PPG testing condition

was justified. For while the pre-sentence report does refer to PPG

testing, the report says nothing about the reliability or efficacy

of PPG testing in particular. Nor does the report offer any

-39-

explanation for how PPG testing would help to address concerns

about recidivism given Medina's particular psychological profile

and criminal history. And the report does not consider whether

alternative methods such as self-reporting interviews, polygraph

testing, and Abel testing would be equally effective. See Weber,

451 F.3d at 567-68.

In fact, the only "evidence" concerning PPG testing

contained in the pre-sentence report is the conclusory statement

that such testing is "a standard condition for this type of

case[]." But that bare assertion is not adequate to show the

condition was reasonable given the serious liberty and reliability

concerns that PPG testing presents and that Medina specifically

raised about such testing in objecting to the condition at

sentencing.

Even in defending the condition on appeal, we note, the

government "makes no distinct argument" that PPG testing "would be

justified as a deterrent measure." McLaurin, 731 F.3d at 264. The

government simply asserts to us that the testing would have a

deterrent effect. The government does argue that the testing is

justified by the interest in providing Medina treatment and

protecting the public from possible future recidivism. But the

government bases that assertion on the conclusory statement that

PPG testing "is widely used for evaluating and treating sex

offenders like" Medina. That statement comes unadorned, however,

-40-

with any explanation of what "widely used" means in practice or in

context. Thus, "[t]he Government is unable to say, except with

vague generalities, how the use of the device amounts to

'treatment,' and is unable to point to any expected, much less

tangible, benefits to [Medina or the public] from the testing."

Id. at 262. In that regard, the government offers no more in

defense of the condition on appeal than was offered on behalf of

the condition at sentencing. But the "showing" provided below, as

we have explained, was insufficient to overcome Medina's contention

that the condition is unreasonable on its face, and thus without

regard to the particular way in which it may be applied to him.

VI.

A district court has significant discretion in setting a

term of supervised release. A district court also has significant

discretion to craft special supervised release conditions. But a

district court's exercise of its discretion must still accord with

the statutory framework governing supervised release.

Here, we conclude that the District Court improperly

determined the relevant guidelines range in setting the term of

supervised release; imposed a blanket pornography ban without

explanation and contrary to directly applicable precedent; and then

imposed an extraordinarily invasive supervised release condition

without considering the condition's efficacy in achieving the

statutory purposes of such conditions, given both the particular

-41-

defendant whose liberty was at stake and the evident concerns he

directly raised about the appropriateness and reliability of the

condition to which he was being required to submit. Although we

have been deferential in reviewing district courts crafting of

special conditions of supervised release, Congress and our

precedent required more of the district court in this instance. We

thus vacate the supervised release sentence term, as well as the

conditions challenged on this appeal, and remand the case for re-

sentencing.

-42-