United States v. Jeremy Cary , 775 F.3d 919 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 14-1961
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JEREMY S. CARY,
Defendant-Appellant.
Appeal from the United States District Court for the
Central District of Illinois.
No. 11-CR-10054 — Joe B. McDade, Judge.
ARGUED NOVEMBER 4, 2014 — DECIDED JANUARY 6, 2015
Before MANION, WILLIAMS, and SYKES, Circuit Judges.
MANION, Circuit Judge. Jeremy S. Cary pleaded guilty to one
count of failing to register as a sex offender. The district court
sentenced him to thirty-three months’ imprisonment. Cary
now appeals, challenging various special conditions of his
supervised release. We affirm in part, vacate in part, and
remand with the direction that the district court amend Cary’s
conditions of supervised release consistent with this opinion.
A hearing on the nature and scope of the computer monitoring
2 No. 14-1961
and filtering software and sexually oriented websites Cary is
prohibited from accessing will be necessary on remand.
I. Background
Jeremy Cary first became involved in the criminal justice
system at the age of fifteen when he was placed on court
supervision for battery after touching the buttocks of a woman.
He subsequently dropped out of high school and found work
washing dishes and bussing tables at restaurants. Simulta-
neously, he began abusing alcohol (up to ten beers a day) and
hard drugs (powder cocaine, crack, and Ecstacy). He was
diagnosed as cannabis- and alcohol-dependent while receiving
services at a treatment center, and was ultimately asked to
leave after threatening and intimidating staff and other
patients.
Things escalated on June 11, 2009, when at the age of
twenty-five, Cary had sexual intercourse with a minor under
the age of seventeen. In March 2010, he pleaded guilty to
aggravated criminal sexual abuse. In April 2010, he registered
as a sex offender in Illinois. Over the next few months he
pleaded guilty to unrelated charges of theft and domestic
battery (for which he served time). He was released from jail in
August 2010 and by early 2011, had moved to Florida with a
married woman and assumed her husband’s identity. How-
ever, he did not report his departure from Illinois to law
enforcement authorities, nor did he register as a sex offender
upon his arrival in Florida. This decision violated both the
Illinois sex offender registry law and the Sex Offender Regis-
tration and Notification Act (SORNA), which makes it a felony
No. 14-1961 3
for a sex offender knowingly to fail to register following an
interstate move. 18 U.S.C. § 2250.
On May 6, 2011, Cary was found crouching in the dark and
peering into the windows of a sorority house on a university
campus. He was arrested and pleaded guilty to prowling. The
prosecution for failure to register as a sex offender underlying
this appeal was then initiated.
II.
Procedural history of Cary’s federal prosecution
In June 2011, Cary was indicted by a federal grand jury for
knowingly failing to register and update a registration as a sex
offender, as required by the SORNA. See 18 U.S.C. §2250(a). He
pleaded guilty. In December 2011, the district court sentenced
him to a within-Guidelines sentence of thirty-three months’
imprisonment and imposed a twenty-year term of supervised
release. This included the standard conditions of supervised
release as well as number of special conditions. Cary then filed
a habeas corpus petition challenging his counsel’s failure to
properly calculate the Guidelines. In February 2013, the district
court granted Cary’s petition and, in April 2013, it resentenced
him to time served, reduced the term of his supervised release
to ten years, and reimposed the standard and some special
conditions of that supervised release. Cary was then released
into a half-way house.
In July 2013, because of complaints by the half-way house’s
manager, Cary’s probation officer petitioned the district court
to revoke Cary’s supervised release based on his unmonitored
use of a computer and his failure to attend sex offender
4 No. 14-1961
treatment. In September 2013, the district court held a revoca-
tion hearing wherein Cary admitted to the alleged violations.
He was sentenced to an above-Guidelines sentence of eighteen
months and his term of supervised release was reduced from
ten to five years. The court then reimposed the special condi-
tions of his supervised release. In November 2013, Cary filed
a second petition for habeas corpus directed at his second
attorney’s ineffective assistance because he did not appeal the
revocation judgment. In April 2014, the district court held a
hearing on Cary’s petition, granted it, and vacated the Septem-
ber 2013 revocation judgment. The district court then reim-
posed the identical judgment, sentence, and conditions of
supervised release that it had imposed in September 2013.
Cary now appeals, challenging various conditions of the
supervised release reimposed on him at the April 2014 hearing
and that he will be subject to for five years upon his release
from prison.
III. Analysis
A. Standard of review
We have several times declined to decide whether the
standard of review for a supervised release condition imposed
at sentencing without prior notice is plain error or abuse of
discretion. See, e.g., United States v. Goodwin, 717 F.3d 511, 522
(7th Cir. 2013); United States v. Shannon, 743 F.3d 496, 499 (7th
Cir. 2014). In Goodwin, for example, we recalled that Fed. R.
Crim. P. 51(b) says: “[i]f a party does not have an opportunity
to object to a ruling or order, the absence of an objection does
not later prejudice that party.” 717 F.3d at 522. Since the
defendant in Goodwin did not have prior knowledge that the
No. 14-1961 5
conditions would be imposed, he maintained plain error
review should not apply. Id. at 522–23. Our subsequent
decision in United States v. Baker, 755 F.3d 515 (7th Cir. 2014),
did not recognize the prior tension in our case law or address
Fed. R. Crim. P. 51(b). And a week after Baker, we ruled in
another supervised release case that “[a]s in Shannon and
Goodwin, we leave for another day the decision on the proper
standard of review” because the outcome would be the same
either way. United States v. Farmer, 755 F.3d 849, 854 (7th Cir.
2014).
At sentencing in this case, Cary “admittedly did not object
to the imposition of any of the conditions of his supervised
release at the [d]istrict [c]ourt level.” Appellant Br. 10. To the
contrary, in lieu of imprisonment, Cary invited the district
court to “amplify these restrictions … [to] keep[] him on a
much shorter leash.” And, indeed, nearly all of the conditions
at issue were previously imposed on him in 2011, so he was
generally on notice of what they entailed. Under these circum-
stances, we review only for plain error. The plain error
standard of review is “remarkably demanding” for an appel-
lant to overcome. United States v. Salazar, 453 F.3d 911, 913 (7th
Cir. 2006). To correct a plain error, the appellant must establish
that there is: “(1) an error or defect (2) that is clear or obvious
(3) affecting the defendant’s substantial rights (4) and seriously
impugning the fairness, integrity, or public reputation of
judicial proceedings.” Goodwin, 717 F.3d at 518 (quoting United
States v. Anderson, 604 F.3d 997, 1001 (7th Cir. 2010)).
6 No. 14-1961
B. Special conditions of supervised release
“Reducing recidivism is the main purpose of supervised
release.” United States v. Siegel, 753 F.3d 705, 708 (7th Cir. 2014).
The general conditions of supervised release are outlined in 18
U.S.C. § 3583(d). But those conditions are a guide, not a limit
on the types of conditions a district court—upon sufficient
findings of fact—may impose on an offender’s conditional
liberty. In furtherance of the Sentencing Commission’s goal of
reducing recidivism, a district court may impose discretionary
or special conditions of supervised release at sentencing, but
those conditions “must: (1) be reasonably related to the factors
identified in § 3553(a), including the nature and circumstances
of the offense and the history and characteristics of the defen-
dant; (2) involve no greater deprivation of liberty than is
reasonably necessary for the purposes set forth in § 3553(a);
and (3) be consistent with the policy statements issued by the
Sentencing Commission.” United States v. Evans, 727 F.3d 730,
733 (7th Cir. 2013) (citation and internal quotations omitted).
“Policies emphasized by the Sentencing Commission include
deterrence, rehabilitation, and protecting the public.” Id. A
sentencing judge must “give a reason, consistent with the
sentencing factors in §3553(a), for every discretionary part of
the sentence … including any non-mandatory conditions of
supervised release.” United States v. Bryant, 754 F.3d 443,
444–45 (7th Cir. 2014). In short, “the terms of supervised
release must be reasonably related to the goals of sentenc-
ing—deterrence, rehabilitation, and protecting the public—in
light of the history and characteristics of the defendant.” Evans,
727 F.3d at 731.
No. 14-1961 7
Because Cary conceded his violations at his revocation
hearing, see Tr. 4-5, and he has not appealed his sentence, the
scope of this appeal is limited to the various special conditions
of supervised release he will be subject to upon his release
from prison.
1. Special condition No. 1 – ban on any alcohol and
mood-altering substances
As a mandatory condition of supervised release, Guideline
§ 5D1.3(c)(7) prohibits the “excessive use of alcohol.” Here,
Cary challenges a special condition that reads, in pertinent
part, that he “shall refrain from the use of alcohol and shall not
purchase, possess, use, distribute, or administer any controlled
substance or mood altering substance.” Cary’s challenge to this
provision is two-fold and directed at the prohibitions against
his consumption of alcohol (a complete ban) and mood-altering
substances. Appellant Br. 43.
a. Ban on alcohol
We previously upheld a complete ban on the consumption
of alcohol when such a condition was supported by evidence
in the record. United States v. Schave, 186 F.3d 839, 842 (7th Cir.
1999) (“[T]he district court here had specific evidence of [the
defendant’s] prior alcohol abuse, including a prior diagnosis of
alcoholism, upon which to reply in imposing the alcohol
restriction.”). But that is not Cary’s argument. In this case, Cary
argues that the prohibition against alcohol should be vacated
because it was not pronounced by the court at Cary’s sentenc-
ing hearing and was imposed only in the written judgment.
Cary argues that “when an inconsistency exists between a
judge’s oral and the later written sentence, the sentence
8 No. 14-1961
pronounced from the bench controls.” United States v. Perry,
743 F.3d 238, 242 (7th Cir. 2014) (citation and internal quota-
tions omitted). The government responds by referencing
record evidence where Cary’s own testimony makes clear that
he has a debilitating problem with alcohol abuse. Gov’t Br. 18.
However, we need not delve further into those details, nor do
we need to decide whether the evidence in the record was
sufficient for the district court to prohibit Cary’s consumption
of any alcohol because Cary withdrew his challenge to this
condition at oral argument. Oral Arg. Tr. 3:17 (“We’re conced-
ing the alcohol, judge.”). Because a “verbal admission by []
counsel at oral argument is a binding judicial admission, the
same as any other formal concession made during the course
of proceedings,” we will affirm the special condition that
prohibits Cary from consuming alcohol. McCaskill v. SCI Mgmt.
Corp., 298 F.3d 677, 680 (7th Cir. 2002).
b. Mood-altering substances
For its part, the government concedes that the district
court’s oral pronouncement included no mention of the phrase
“mood-altering substance.” We recently described some of the
potential complications that this ambiguous phrase may create
for defendants—indeed, “[v]arious innocuous foods, vitamins,
and beverages … may be ‘mood altering.’” United States v.
Baker, 755 F.3d 515, 523 (7th Cir. 2014); United States v. Siegel,
753 F.3d 705, 715 (7th Cir. 2014). While the best practice for
district courts is to impose language prohibiting “illegal mood-
altering substances,” the problem with the phrase included in
this instance is that it appears for the first time in this record on
the list of special conditions imposed after the district court’s
No. 14-1961 9
oral rulings. Accordingly, we will follow our earlier decision in
Baker and remand this issue to the district court with the
direction that the prohibition against imbibing “mood-altering
substances” be removed from condition no. 1 of Cary’s special
conditions. 755 F.3d at 523–24.
2. Special condition No. 3 – required participation in sex-
offender treatment
Guideline § 5D1.3(d)(7)(A) authorizes as a special condition
of supervised release “a condition requiring the defendant to
participate in a program approved by the United States
Probation Office for the treatment and monitoring of sex
offenders.” Cary challenges the imposition of special condition
no. 3, which reads, in pertinent part, that he “shall participate
in a sex offender treatment program as deemed necessary by
the U.S. Probation Office.” Cary argues that this “provision
only applies to ‘sex offenses’ and a SORNA conviction is not a
‘sex offense.’” Appellant Br. 16-17. Cary is half-correct. We
have previously held—consistent with some circuits, but not
with others—that a SORNA conviction arising from a “failure
to register is not a ‘sex offense’ for purposes of U.S.S.G.
§ 5D1.2(b)(2).” United States v. Baker, 755 F.3d 515, 522 (7th Cir.
2014); United States v. Goodwin, 717 F.3d 511, 519 n.2 (7th Cir.
2013). But Cary is wrong that a district court may only impose
a condition requiring sex offender treatment incident to a sex
offense conviction. See United States v. Evans, 727 F.3d 730, 735
(7th Cir. 2013). The rule from Evans controls. There we held
that “sex-offender treatment is reasonably related to the factors
in § 3553(a), even if the offense of conviction is not a sex
offense, so long as the sexual offenses are recent enough in the
defendant’s history that the goals of rehabilitation and protect-
10 No. 14-1961
ing the public justify an order for treatment.” 727 F.3d at 735;
see also United States v. Carter, 463 F.3d 526, 530 n.5 (6th Cir.
2006) (explaining that § 5D1.3(d) does not restrict sex offender
treatment condition to sex offenses).
Here, Cary was convicted of aggravated criminal sexual
abuse only five years ago and an uncontested fact giving rise
to his revocation hearing was that he failed to complete sex
offender treatment ordered incident to his SORNA conviction.
And it is difficult to ignore the fact that Cary was taken into
custody after he was arrested for peeping into the windows of
a sorority house in the middle of the night. Although sorority
girls are typically not minors, this illegal and perverted
behavior does not reflect the conduct of a person in control of
his sexual urges. These facts at hand, the district court stated at
sentencing that it “believe[d] that there’s a substantial likeli-
hood [Cary] will continue to act out [his] predispositions in
having sexual contacts … with underage females.” Tr. 36. With
the sex offender treatment, the court hoped that Cary would
“come to terms” with the fact that he is a sex offender and will
begin “living an acceptable life.” Tr. 38. Here, the district court
explained the reasons for its conclusion that Cary was not yet
rehabilitated from his illegal sexual proclivities and was in
need of sex offender treatment. This case fits squarely within
the boundaries of Evans. We bear in mind that Cary’s failure to
complete this course of treatment was a principal basis for the
revocation of his supervised release resulting in the imposition
of the special conditions on review today. The district court did
not commit plain error—or any error—by requiring him to
complete sex offender treatment. Accordingly, we will affirm
No. 14-1961 11
the imposition of that treatment as part of Cary’s special
conditions of supervised release.
3. Special condition No. 6 – computer and internet
monitoring
Cary raises two challenges to special condition no. 6, which
requires him to “participate with the U.S. Probation Office’s
Computer and Internet Monitoring Program” and “install
filtering software on any computer [he] possesses or use[s]
which will monitor/block access to sexually oriented websites.”
He argues that it is vague, overbroad, and stricter than the
computer monitoring condition that he labored under as a
special condition resulting from his SORNA conviction, which
monitored and blocked only child pornography websites. He
also asserts that it fails for a lack of adequate evidentiary
foundation because “there was no discussion or rationale
presented by the court for its imposition.” Appellant Br. 32.
The government concedes that “the software filtering require-
ment should be vacated so that the court may clarify precisely
what websites should be monitored and blocked.” Gov’t Br. 25.
Accordingly, we vacate this special condition and remand to
allow the district court to define more precisely the limitations.
While we remand for this purpose, we note that Cary is
incorrect in his argument that the district court ban on his
access to sexually oriented sites is necessarily too broad
because it prohibits him from accessing or viewing adult
pornography on the internet. Cary is correct that special
condition no. 5, which barred him from viewing “illegal
pornography,” did not prohibit him from viewing (legal) adult
pornography. Cary also correctly notes that adult pornogra-
12 No. 14-1961
phy, unlike child pornography, generally has First Amend-
ment protection. United States v. Shannon, 743 F.3d 496, 500 (7th
Cir. 2014). But an offender on supervised release has no
unmitigated First Amendment right to view adult pornogra-
phy on the internet, particularly when he is permitted to view
it through other mediums like television or in magazines. That
we have upheld complete bans on activities as special condi-
tions of supervised release (including a ban on internet use)
informs this conclusion. See, e.g., United States v. Angle, 598 F.3d
352, 361 (7th Cir. 2010) (affirming ban on personal use of the
internet as a special condition of supervised release because of
the connection between the offender’s use of the internet and
his child pornography-related criminal activity); Schave, 186
F.3d at 842 (affirming complete prohibition on the use of
alcohol when supported by the record); see also United States v.
Brigham, 569 F.3d 220, 234 (5th Cir. 2009) (affirming the
imposition of a three-year ban on possession of “pornographic
sexually oriented or sexually stimulating materials” where the
offender’s sex offender treatment counselor testified that even
sexually explicit images of adults would reinforce the of-
fender’s previous behavior).
Further, on remand, the sentencing court must give a
reason for imposing this special condition of supervised
release. Bryant, 754 F.3d at 445. We recently addressed the need
of a sentencing court to provide its reasoning for imposing a
special condition of supervised release that required a sex
offender to obtain and pay for filtering software to block his
access to sexually oriented websites. United States v. Siegel, 753
F.3d 705, 714 (7th Cir. 2014). After addressing numerous other
deficiencies in the sentencing court’s findings, we “remanded
No. 14-1961 13
for reconsideration of the conditions of supervised release that
we have determined to be inappropriate, inadequately defined,
or imposed without the sentencing judges having justified
them by reference to the sentencing factors in 18 U.S.C.
§ 3553(a).” Id. at 717. To be clear, Siegel did not establish a
bright-line rule for sex offenders’ access to sexually oriented
websites or materials. It is a case about sentencing court
discretion and the record evidence necessary for certain special
conditions of supervised release to withstand appellate
scrutiny. See Siegel, 753 F.3d at 707–08, 710–11.
We acknowledge that this is a “challenging area” of law
that is developing daily. United States v. Adkins, 743 F.3d 176,
194 (7th Cir. 2014). And we recognize that the circuits are
replete with fact-intensive cases reflecting a broad range of
uncertainty about whether and which sex-based special
conditions will be upheld or struck down. Id. at 194–95
(collecting cases from other circuits reaching various outcomes
where special conditions banned access to sexual materials).
However, one consistent theme emerges from these cases—a
sentencing court must buttress its conclusions with factual
findings to support them. See, e.g., Bryant, 754 F.3d at 444–45;
Siegel, 753 F.3d at 707–08, 710–11. Accordingly, on remand the
district court must also provide an adequate explanation for
any internet ban it imposes—and any such ban must be
defined to some degree of precision. Cf. 18 U.S.C. § 2256(2)(B)
(defining “sexually explicit conduct”).
4. Special condition No. 9 – mental health services
Cary disputes that he should be subject to mental health
counseling and treatment and that he take all prescribed
14 No. 14-1961
medications as directed by the U.S. Probation Office. He argues
that “while the district court may have discussed the fact that
[he] has been diagnosed with mental health issues, that
acknowledgment alone is insufficient to [require the imposition
of this condition].” Appellant Br. 35. The facts in the record
dispatch this argument.
When the district court offered Cary the opportunity to
make a statement in mitigation, he accepted, and chose to focus
his remarks exclusively on his hope for an order recommitting
him to mental health services treatment so that he could obtain
medication he believed was necessary for his rehabilitation at
a reduced cost or for free. The district court inquired of Cary’s
medication history during his previous incarceration. The court
also asked whether the Department of Corrections’ mental
health services issued Cary a continuing prescription for
medication upon discharge, and Cary confirmed that it did not.
During sentencing, the district court ordered that Cary “[t]ake
this medication.” Tr. 37. The district court then recounted for
the record that Cary had been diagnosed with a mental illness
while in the custody of the Department of Corrections and was
given medication. Id. The court then concluded that he “should
receive treatment” for his illness. Id. Finally, the court accom-
modated Cary’s request and pronounced this special condition.
Both Cary’s request for mental health services and the
district court’s inquiry into Cary’s mental health history prior
to ordering the mental health services Cary himself requested
are each independent reasons for us to reject Cary’s change of
tune on appeal. We will not second-guess conditions of
supervised release imposed consistent with an offender’s
request in the district court. By asking for the very condition
No. 14-1961 15
the court subsequently imposed, Cary waived any argument
against it. See United States v. Hible, 700 F.3d 958, 961 (7th Cir.
2012). Because the district court did not commit plain error by
imposing psychiatric services and mental health counseling
and treatment and the requirement that Cary take all pre-
scribed medications as directed by treatment providers, we
will affirm the imposition of special condition no. 9.
5. Payment provisions of special conditions 1, 6, & 9
Finally, Cary argues that he should not be required to pay
the costs associated with certain special conditions. Cary
argues that we “should relieve Mr. Cary of the obligation to
pay for any of his treatment requirements.” Appellant Br. 44.
Conditions 1, 6, and 9 of the written judgment require that
Cary “shall pay for [the costs of] these services as directed by
probation offices.”
Title 18 U.S.C. § 3672 provides that:
[t]he Director of Administrative Office of the United
States Courts … shall have the authority to contract
with any appropriate public or private agency or
person for the detection of and care in the commu-
nity of an offender who is an alcohol-dependent
person … . This authority shall include the authority
to provide … psychological … services; and other
rehabilitative services designed to protect the public
and benefit the alcohol-dependent person … .
This provision goes on to state that “[w]henever the court
finds that funds are available for payment by or on behalf of a
16 No. 14-1961
person furnished such services … the court may direct that
such funds be paid to the Director.” Id.A sentencing judge is “empower[ed] … to impose as a
condition of such release any condition authorized as a
discretionary condition of probation plus ‘any other condition
it considers to be appropriate.’” 18 U.S.C. § 3583(d). We held in
United States v. Daddato that this language is “broad enough to
encompass the requirement that [a] defendant make good the
government’s ‘buy money.’” 996 F.2d 903, 904 (7th Cir. 1993).
Cary protests that “if he is unable to pay, who knows what
might happen?” Appellant Br. 20. This concern is overstated.
While the conditions as presently written do not forewarn Cary
of what consequences may follow if he fails to comply, we held
most recently in Baker and earlier in Siegel that a “defendant
may not be recommitted to prison ‘for a mere inability to
pay.’” Baker, 755 F.3d at 529 (quoting Siegel, 753 F.3d at 714).
However, that we will not recommit a defendant to prison for
failure to pay does not mean that a sentencing judge may not
impose upon an offender the obligation to do so if he or she is
able. See United States v. Hinds, 770 F.3d 658, 666 (7th Cir. 2014)
(acknowledging a district court’s authority to impose a
payment condition for substance abuse treatment and drug
testing); United States v. Williams, 739 F.3d 1064, 1067 (7th Cir.
2014) (citing 18 U.S.C. § 3583(d) to hold that repayment
condition was authorized because it serves a penological
function through incentivizing offenders to succeed with their
rehabilitative efforts).
Here, the district court found that Cary is “an offender who
is an alcohol-dependent person” and is in need of “psychologi-
No. 14-1961 17
cal … services.” Because the governing statute “authorizes a
district court to impose a payment condition for substance
abuse treatment” on such a person if he is financially able to do
so, the district court did not commit plain error in imposing
repayment conditions on Cary in connection with the alcohol
and mental health services he was ordered to receive. Hinds,
770 F.3d at 666 (quoting 18 U.S.C. § 3672); see also United States
v. Bull, 214 F.3d 1275, 1278 (11th Cir. 2000) (holding that district
court did not clearly err by imposing a payment requirement
for mental health treatment while considering the offender’s
ability to pay).
But that is not the end of it. Although we have just con-
cluded that title 18 U.S.C. § 3672 affords district courts the
discretion to require that offenders repay the government for
rehabilitative services furnished to them if they are financially
able to do so, the problem with applying traditional fact-
finding practices to predict offenders’ future financial circum-
stances is that the conclusions are speculative. To avoid this
speculation while remaining faithful to the fact-finding
requirement imposed by 18 U.S.C. § 3672, the best practice for
district courts to follow is to incorporate language into the
special condition that requires the offender to pay for the costs
of rehabilitative services if financially able to do so. See, e.g.,
Hinds, 770 F.3d at 666; Baker, 755 F.3d at 529; Siegel, 753 F.3d at
714.
The district court did not do that here. So despite affirming
the substance of special condition nos. 1 and 9, because the
district court made no findings about Cary’s financial circum-
stances before it imposed mandatory repayment requirements
on him, these special conditions must be remanded to the
18 No. 14-1961
district court for this limited purpose. If the district court, on
this limited remand, elects to order the imposition of a condi-
tional repayment plan on any of the special conditions imposed
on Cary, it should incorporate the phrase “if financially able”
or a similar phrase to the last sentence of the applicable special
conditions in the judgment. Hinds, 770 F.3d at 666 (remanding
because the district court failed to make a determination
“based on the offender’s financial resources” before imposing
a special condition). We need not address payment responsibil-
ities in connection with condition no. 6 because we have
vacated it.
IV. Conclusion
In sum: (a) special condition no. 1 is affirmed in part and
remanded for the limited purpose of removing the phrase
concerning “mood-altering substances” and imposing the
phrase “if financially able” or a similar phrase; (b) special
condition no. 3 is affirmed; (c) special condition no. 6 is vacated
and remanded for a hearing on the nature and scope of the
computer monitoring and filtering software and sexually
oriented websites Cary is prohibited from accessing while on
supervised release; and (d) special condition no. 9 is vacated
and remanded for the imposition of the phrase “if financially
able” or a similar phrase. Accordingly, the judgment of the
district court is AFFIRMED IN PART and VACATED IN PART
and this case is REMANDED to the district court for proceed-
ings consistent with this opinion.