United States v. Soule ( 2023 )

Appellate Case: 22-8001 Document: 010110806524 Date Filed: 02/01/2023 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 1, 2023
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 22-8001
(D.C. No. 2:06-CR-00166-SWS-1)
ROBERT H. SOULE, (D. Wyo.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MORITZ, BRISCOE, and CARSON, Circuit Judges.
_________________________________
Robert Soule challenges a special condition of his supervised release that
prohibits him from accessing, possessing, sending, or receiving sexually explicit
materials. He argues that the district court abused its discretion by imposing this
special condition without making sufficiently particularized findings on the record.
We agree and therefore vacate the special condition and remand for further
proceedings.
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel.
But it may be cited for its persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R.
32.1(A).
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Background
In 2006, Soule pleaded guilty to one count of possession of child pornography.
The district court sentenced him to 130 months in prison and 15 years of supervised
release. As relevant here, the district court imposed a special condition of supervised
release that prohibited Soule from “possess[ing], send[ing,] or receiv[ing] any
pornographic, sexually oriented, or sexually stimulating visual, auditory,
telephonic[,] or electronic signs, signals[,] or sounds from any source, unless part of
a treatment regimen.” R. vol. 1, 25.
Soule began serving his term of supervised release in November 2015. About
one year later, in October 2016, the district court modified Soule’s supervised-release
conditions by ordering him to report to a six-month residential reentry program after
his probation officer determined that he “would benefit from living in an
environment where he will not have the temptation of uncontrolled access to the
internet and pornography.” Id. at 33. The probation officer based his determination,
in part, on a police report alleging that Soule had attempted to print photographs of
“a topless male” and “young males in sexual positions.” Id. The district court
modified Soule’s conditions again in May 2020, this time prohibiting Soule from
using and possessing alcohol and other intoxicants. And in November 2021, the
district court placed Soule on a 60-day alcohol monitoring program. Soule consented
to each of these modifications.
From September to November 2021, Soule violated his supervised-release
conditions by testing positive for alcohol consumption four times and failing to
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report to his probation officer twice. After Soule admitted to these violations, the
district court revoked supervised release and sentenced him to a seven-month prison
term followed by five years of supervised release. For the supervised-release term,
the district court imposed a modified version of the special condition it had
previously imposed:
The [d]efendant shall not access, possess, send, or receive any material
that depicts sexually explicit conduct as defined under 18 [U.S.C.
§] 2256(2)(A) in any format including, but not limited to, images,
books, writings, drawings, video games, or visual depiction of such
conduct as defined in [§] 2256(5); any material constituting or
containing child pornography as defined under [§] 2256(8); or any
material constituting or containing the obscene visual representation of
sexual abuse of children as defined under [18 U.S.C. §] 1466A.
The [d]efendant shall not visit bulletin boards, chat rooms, or other
internet sites where any material referenced above is discussed.
R. vol. 4, 44–45 (emphasis added).1
Soule’s counsel objected to the modified special condition, arguing that it
requires particularized findings and is vague. The district court disagreed and
determined that the condition was appropriate in this case based on Soule’s state-
court convictions for possession of child pornography in 2001; a recommendation
from a psychosexual assessment prepared by a licensed clinical social worker in
2003; a Sex Offender Management Program (SOMP) discharge evaluation prepared
by the Bureau of Prisons (BOP) in 2015; and the police report that resulted in the
1
The district court made this modification in light of United States v. Koch,
which addressed a challenge to the same special condition imposed at Soule’s initial
2006 sentencing and expressed concern about that condition’s “exceedingly broad”
language. 978 F.3d 719, 722 n.1 (10th Cir. 2020).
3
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October 2016 modification to Soule’s supervised-released conditions. The district
court recognized that Soule had since completed a sex-offender treatment program
and received individual counseling, which suggested that the condition may no longer
be necessary. But without an updated “psychosexual assessment, eliminating any
concerns as to [Soule’s] viewing and/or possession of pornography, child or adult,”
the district court remained concerned about the need for the condition “based upon
the information that ha[d] been provided.” Id. at 46. It invited Soule to seek
modification of the condition, but only if he first underwent a psychosexual
assessment that showed the condition was no longer necessary. Until then, it “would
find that th[e] condition is supported by the facts, information, background, history,
characteristics, and the assessments that were made.” Id. at 47.
Soule appeals.
Analysis
“When a defendant objects to a special condition of supervised release at the
time it is announced, we review the imposition of the special condition for abuse of
discretion.” United States v. Englehart, 22 F.4th 1197, 1207 (10th Cir. 2022). “A
district court abuses its discretion only where it (1) commits legal error, (2) relies on
clearly erroneous factual findings, or (3) where no rational basis exists in the
evidence to support its ruling.” Id. (quoting United States v. A.S., 939 F.3d 1063,
1070 (10th Cir. 2019)). Here, Soule argues that the district court abused its discretion
by not making the particularized findings required to impose the special condition.
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Our precedents make clear that before imposing any special condition of
supervised release, the district court “must analyze and generally explain how, with
regard to the specific defendant being sentenced, the special condition furthers the
three statutory requirements set out in 18 U.S.C. § 3583(d).” Koch, 978 F.3d at 725.
That is, the district court must analyze and generally explain how the special
condition (1) is “reasonably related” to the particular offense at hand, the defendant’s
history and characteristics, the deterrence of criminal conduct, the public’s
protection, or the defendant’s correctional needs; (2) “involve[s] no greater
deprivation of liberty than is reasonably necessary” to deter criminal activity, protect
the public, and promote the defendant’s rehabilitation; and (3) is consistent with any
relevant policy statements from the United States Sentencing Commission. United
States v. Martinez-Torres, 795 F.3d 1233, 1236 (10th Cir. 2015) (quoting § 3583(d)).
“Although we generally are ‘not hypertechnical in requiring the court to explain why
it imposed a special condition of release—a statement of generalized reasons
suffices—the explanation must be sufficient for this court to conduct a proper
review.”’ Englehart, 22 F.4th at 1207 (quoting Koch, 978 F.3d at 725).
Moreover, if the special condition “invades a fundamental right or liberty
interest,” the district court must also “justify the condition with compelling
circumstances.” United States v. Burns, 775 F.3d 1221, 1223 (10th Cir. 2014). For
instance, when, as here, the district court imposes a special condition that “implicates
constitutional interests, such as the right to possess sexually explicit materials
involving adults, more detail may be required if the reasons for the restriction are not
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matters of common knowledge.” Martinez-Torres, 795 F.3d at 1238 (citation
omitted). Specifically, because this kind of “special condition implicates a
fundamental right or interest,” the district court must conduct a “meaningful and
rigorous analysis” supporting its imposition. Koch, 978 F.3d at 726. The district court
satisfies this standard if it “(1) make[s] particularized findings that are specific to
[the defendant’s] history and characteristics, (2) explain[s] how the specific condition
furthers the statutory goals of supervised release, and (3) balance[s] those goals
against the [constitutional] concerns raised by the condition.” Englehart, 22 F.4th at
1211.
We agree with Soule that the district court here failed to engage in the
meaningful and rigorous analysis required to impose the special condition. To be
sure, as the government points out, the district court did reference some evidence
that, in its view, justified imposing the special condition, including the similar
condition recommended in Soule’s 2003 psychosexual assessment; the BOP’s 2015
SOMP discharge evaluation; Soule’s 2001 state-court convictions for possessing
child pornography; and the 2016 police report alleging that Soule had attempted to
print sexually explicit photographs of seemingly underage males. Upon referencing
that evidence, the district court made a conclusory statement in an apparent attempt
to satisfy § 3583(d)(1) that the condition was “supported by the facts, information,
background, history, characteristics, and the assessments that were made.” R. vol. 4,
47. Then, in an apparent attempt to satisfy § 3583(d)(2), it asserted that the condition
“involve[d] no greater deprivation of liberty than [wa]s reasonably necessary for
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deterring criminal activity, protecting the public, and promoting [Soule’s]
rehabilitation.” Id. at 49. But the district court did not “analyze and generally explain
how . . . the special condition furthers the . . . statutory requirements set out in 18
U.S.C. § 3583(d).”2 Koch, 978 F.3d at 725 (emphasis added).
Simply put, this is not the kind of meaningful and rigorous analysis that our
caselaw requires. “[T]he district court ‘needed to explain why the restriction on legal
sexually explicit material was supported by the statutory factors in this case.’”
Englehart, 22 F.4th at 1209 (quoting Martinez-Torres, 795 F.3d at 1238). For
example, “[i]f the district court believed that there was some relationship between
[Soule’s] possession and use of adult pornography and the likelihood that he would
engage in sexual misconduct involving [children], the court should have explained
the basis for that conclusion.” Id. (emphasis added) (quoting United States v.
Perazza-Mercado, 553 F.3d 65, 76 (1st Cir. 2009)). Because the district court failed
to articulate such a relationship, we cannot assess whether the special condition
“satisfies the statutory imperatives set out in [§ 3583(d)], let alone the requirement
that any such special condition, given that it implicates a fundamental right, serves a
compelling governmental interest.” Koch, 978 F.3d at 726. Likewise, though the
2
The district court also did not discuss whether the condition “is consistent
with any pertinent policy statements issued by the Sentencing Commission.”
§ 3583(d)(3). The government asserts that this is because “[t]here are no pertinent
policy statements issued by the Sentencing Commission regarding the imposition of a
condition prohibiting possession/access of sexual materials.” Aplee. Br. 20. We need
not decide whether that is correct because, as explained above, the district court
inadequately analyzed the other two statutory requirements, § 3583(d)(1) and (2).
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district court stated in a conclusory fashion “that the condition is not overly broad” in
light of the statutory goals of supervised release, R. vol. 4, 47, it is at best unclear
what “compelling circumstances” overcame the First Amendment concerns
implicated by this special condition, Koch, 978 F.3d at 724.
The government counters that the district court made sufficiently
particularized findings to justify imposing the special condition because the
documents the district court alluded to specifically explain why Soule’s possession of
sexually explicit material presents a risk of reoffending. “Maybe so, but that is not
the same as showing that the district court ‘set forth, on the record, defendant-
specific findings.’” Englehart, 22 F.4th at 1211 (quoting Koch, 978 F.3d at 726).
Perhaps information in the referenced documents justify imposing the condition on
Soule. But we have made clear that the district court itself must engage in that
meaningful and rigorous analysis. And even if we were to overlook that requirement
and accept the explanation supplied in the documents themselves, the district court
still needed to “balance any . . . purpose [served by the condition] against
[constitutional] concerns,” keeping in mind that only “compelling circumstances will
overcome those concerns.” Id. at 1210, 1211. Yet it did not do so here.
For similar reasons, we reject the government’s suggestion that we may
remedy any inadequacies in the district court’s explanation by “infer[ring] the district
court’s reasoning [from] the record.” Aplee. Br. 21. We have unequivocally stated
that a “district court is required to give reasons on the record for the imposition of
special conditions of supervised release.” United States v. Hahn, 551 F.3d 977, 982
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(10th Cir. 2008) (emphasis added). And when it fails to do so, “we ‘decline to enter
the zone of appellate speculation in reviewing for abuse of discretion.’”3 United
States v. Kravchuk, 335 F.3d 1147, 1159 (10th Cir. 2003) (quoting United States v.
Zanghi, 209 F.3d 1201, 1205 (10th Cir. 2000)). Because the district court here did
not make the requisite findings on the record, “we will not make those findings in the
first instance” on appeal. Englehart, 22 F.4th at 1213. We accordingly hold that the
district court abused its discretion in imposing the special condition on Soule under
these circumstances.4
Conclusion
For these reasons, we vacate the special condition and remand for further
proceedings.
Entered for the Court
Nancy L. Moritz
Circuit Judge
3
The government asserts that Martinez-Torres suggests otherwise. But the
portion of that decision the government cites simply discusses two out-of-circuit
cases in which appellate courts assessed whether “the district court’s reasoning
[could] be inferred from the record”; it does not purport to adopt a similar approach
for the Tenth Circuit. 795 F.3d at 1239. And to the extent that Martinez-Torres
elsewhere suggests adoption of such an approach, we adhere to our earlier, settled
precedents in which we have declined to speculate on reasons supporting a special
condition that the district court itself did not provide on the record. See United States
v. Hansen, 929 F.3d 1238, 1256 (10th Cir. 2019).
4
Because this conclusion is sufficient to vacate the special condition, we need
not address Soule’s alternative argument that the district court also abused its
discretion by requiring him to disprove the need for imposing that condition.
9