United States v. Roy Baker , 755 F.3d 515 ( 2014 )


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  •                                   In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________________
    No. 13-1641
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.
    ROY BAKER,
    Defendant-Appellant.
    ____________________
    Appeal from the United States District Court for the
    Central District of Illinois.
    No. 1:12-cr-10035-MMM-JAG-1 — Michael M. Mihm, Judge.
    ____________________
    ARGUED NOVEMBER 12, 2013 — DECIDED JUNE 17, 2014
    ____________________
    Before ROVNER and SYKES, Circuit Judges, and DURKIN,
    District Judge. ∗
    DURKIN, District Judge. Individuals convicted of sex of-
    fenses are required under federal and state law to register as
    ∗ Of the United States District Court for the Northern District of Illinois,
    sitting by designation.
    2                                                    No. 13-1641
    a sex offender with the local law enforcement agency where
    they reside. Roy Baker has repeatedly chosen to ignore this
    requirement since the first time he sexually assaulted a
    woman in 1982. This habit caught up to him for the third
    time in May 2012 when he pled guilty to a single count of
    failing to register as a sex offender, in violation of 
    18 U.S.C. § 2250
    (a). The district judge sentenced Baker to 77 months’
    imprisonment, followed by a life term of supervised release.
    The judge also imposed eight special conditions of super-
    vised release. Baker now challenges the length of his super-
    vised release term and four of those special conditions. The
    government agrees that the supervised release term and
    some special conditions should be vacated. For the following
    reasons, Baker’s sentence is affirmed in part and vacated in
    part.
    BACKGROUND
    I. Baker’s Underlying Conduct
    Baker was convicted of criminal sexual assault in Chica-
    go, Illinois, in January 1982 and July 1983, and sentenced to
    concurrent 8-year prison terms. He was released on parole in
    1986, and within three months of that release, kidnapped,
    threatened, and sexually assaulted two other women. For
    those state offenses, Baker received concurrent 28-year pris-
    on sentences.
    Baker was released from prison on parole in 2000 but lat-
    er taken back into custody in 2002 to serve a 2-year prison
    term for a state aggravated fleeing offense. Upon his subse-
    quent parole release in March 2003, Baker was told to regis-
    ter as a sex offender. He did not, and was convicted in
    March 2004 in an Illinois state court for failing to register as
    No. 13-1641                                                  3
    a sex offender. He received a 30-month term of probation,
    though he later violated his probation and went to jail for 6
    months. Baker completed his probation sentence in 2007.
    In April 2007, Baker sought employment with a restau-
    rant in the food court of an Illinois shopping mall. He
    claimed that he had no prior felony convictions—a lie he lat-
    er acknowledged was necessary in order to secure employ-
    ment.
    Baker continued to work at the restaurant until he was
    fired in December 2007 as a result of conduct involving two
    underage girls. On December 6 or 7, 2007, Baker invited two
    14-year old girls to join him in the back area of the restau-
    rant. He proceeded to ask the girls sexual questions and if
    they would engage in explicit sexual activity with him.
    Frightened, the girls left the area but not before Baker gave
    one of them his phone number. The next day, one of the
    girls—who were together at the time—called Baker and pre-
    tended to be the other girl. Baker repeated his desire to en-
    gage in sexual relations with the girl, but the conversation
    went no further. That was the last time Baker ever spoke
    with the girls. Nevertheless, one of the girl’s mothers became
    aware of the incident and contacted police. The police inves-
    tigated the complaint, which led to the discovery of Baker’s
    extensive criminal history and prompted Baker’s employer
    to fire him. For reasons unknown, the state’s attorney’s office
    handling the matter declined to prosecute the case.
    Baker was involved in various state criminal matters over
    the next four years, including a domestic violence incident
    for which no charges were filed, an arrest for violating bail
    bond, and an arrest for driving with a suspended license and
    illegally transporting alcohol. Then, in February 2011, Baker
    4                                                 No. 13-1641
    committed a second state sex offender registration violation
    by failing to report his employment at a new restaurant.
    Baker was incarcerated and later released on bond in March
    2011. A condition of Baker’s release required him to partici-
    pate in a substance-abuse treatment program, for which he
    checked into a residential program. Baker was discharged
    from that program unsuccessfully after failing to attend
    drug treatment and testing positive for alcohol. Baker pled
    guilty to the state failure to register charge in November
    2011, and had his sentencing date scheduled for February 3,
    2012.
    Another condition of Baker’s March 2011 release was to
    refrain from visiting social networking or dating websites.
    Baker ignored this and used the alias “Rob Baker” to create a
    profile on a dating website that included his photo and other
    personal identifying information. Doing this allowed Baker
    to begin an online relationship in November 2011 with a
    woman who lived in Michigan. The pair eventually became
    close, and Baker moved to Michigan to live with the woman
    and her children, ages 8 and 12. Baker informed the woman
    of his sex offender status, and she showed him the local
    Michigan police station where Baker needed to register.
    Again, Baker not only made the conscious decision to not
    register, but he also lied and told the woman that he had. He
    also did not clear his departure from Illinois with the proper
    Illinois authorities.
    Baker’s February 3, 2012 sentencing date on the second
    failure to register charge came and went without a word
    from Baker. A warrant for his arrest was issued on February
    8, 2012, after Illinois authorities discovered Baker was two
    months late in reporting for sex offender registration and
    No. 13-1641                                                   5
    had failed to update his new address. Shortly thereafter, on
    February 22, a police officer stopped Baker in Michigan for
    speeding. The officer discovered the arrest warrant and im-
    mediately took Baker into custody, where Baker was pro-
    cessed and later transported back to Illinois.
    On March 21, 2012, a federal grand jury in Peoria, Illinois,
    returned a one-count indictment charging Baker with violat-
    ing the Sex Offender Registration and Notification Act
    (“SORNA”) by traveling interstate and failing to register or
    update his registration as a sex offender. See 
    18 U.S.C. § 2250
    (a). Baker pled guilty to the charge on May 31, 2012,
    without the benefit of a plea agreement.
    II. Sentencing
    The U.S. Probation Office prepared a presentence inves-
    tigation report (“PSR”) for the district court. The total of-
    fense level was a 13 with a criminal history category of VI,
    making the guidelines range 33 to 41 months’ imprisonment,
    see U.S.S.G. § 5C1.1(f), with a 10-year statutory maximum.
    The PSR noted that this might under-represent Baker’s crim-
    inal history because the 1982 and 1983 sexual assault convic-
    tions were too old to be counted, and Baker was never
    charged for the incident at the mall restaurant. The PSR also
    noted that the applicable supervised release term was 5
    years to life, citing 
    18 U.S.C. § 3583
    (k). Lastly, the Probation
    Office sent the parties a letter describing eight special condi-
    tions that it would recommend as part of Baker’s supervised
    release.
    The government filed a sentencing memorandum and
    advocated for the statutory maximum term of imprison-
    ment, noting the restaurant incident, Baker’s false employ-
    6                                                        No. 13-1641
    ment applications, and the fact Baker erroneously told the
    woman he met online that he had completed his sex offender
    registration in Michigan. Baker opposed the government’s
    request for an upward departure and a life term of super-
    vised release, as well as objected to six of the proposed spe-
    cial conditions of release, including a ban on alcohol; partic-
    ipation in an internet monitoring program; a ban on contact
    with minors, including his own minor children; 1 and a pro-
    vision requiring him to participate in a sex offender treat-
    ment program.
    Baker’s sentencing hearing occurred over the course of
    two days in January 2013. On day one, the government pre-
    sented the testimony of four witnesses in aggravation. They
    included the district manager of Baker’s employer at the
    time of the restaurant incident, the two young girls Baker
    solicited for sexual relations at the restaurant, and the police
    detective who investigated the incident. On day two, the dis-
    trict court began by addressing Baker’s objections to the PSR.
    Regarding the term of supervised release, the sentencing
    judge stated, “So, it is my belief that the range available to
    me is 5 years to life.” The judge next addressed Baker’s ob-
    jections to the conditions of supervised release, overruling
    all of them but modifying the internet-monitoring condition
    to say that the software should only block access to “adult
    rape-related websites and child pornography websites.”
    The district judge then proceeded to announce Baker’s
    sentence. Adopting the factual findings and guidelines cal-
    1 The PSR listed Baker as having three minor children: an 8-year old, a
    20-month old, and a 6-month old.
    No. 13-1641                                                     7
    culation contained in the PSR, the judge announced an up-
    ward departure from the guidelines range and imposed a
    77-month prison term, to be followed by a life term of su-
    pervised release. Each of the eight special conditions of re-
    lease was also imposed. The written judgment listed the four
    conditions at issue on appeal (i.e., conditions 1, 3, 4, and 8) as
    follows:
    1. You shall refrain from any use of alcohol and shall
    not purchase, possess, use, distribute, or adminis-
    ter any controlled substance or mood altering sub-
    stance or any paraphernalia related to any con-
    trolled substance or mood altering substance, ex-
    cept as prescribed by a physician. You shall, at the
    direction of the probation officer, participate in a
    program for substance abuse treatment including
    not more than six tests per month to determine
    whether you have used controlled substances and
    or alcohol. You shall pay for these services as di-
    rected by the probation office.
    ***
    3. You shall participate with the U.S. Probation Of-
    fice’s Computer and Internet Monitoring Program
    (CIMP) during your term of supervision. The
    monitoring program will start as soon as possible
    after your supervision term begins. You shall sign
    the rules of the Computer Internet and Monitoring
    Program and comply with the conditions of this
    program. During this time:
    A. You shall install filtering software on any com-
    puter you possess or use which will monitor/block
    8                                                  No. 13-1641
    access to adult rape[-]related websites and child
    pornography websites. You shall allow the proba-
    tion officer unannounced access to any computer
    you possess or use to verify that the filtering soft-
    ware is functional. You shall pay for the cost of the
    filtering software as directed by the probation of-
    ficer.
    ***
    4. You shall have no contact with any person under
    the age of 18, except in the presence of a responsi-
    ble adult who is aware of the nature of your back-
    ground and current offense, and who has been
    approved by the probation officer. This limitation
    applies to the defendant’s children but is not in-
    tended to interfere with any ruling by a state court
    that has jurisdiction over the children.
    ***
    8. You shall participate in a sex offender treatment
    program as deemed necessary by the probation of-
    fice. You shall pay for such services as directed by
    the U.S. Probation Office. … .
    The judge orally declared that Baker should pay for the drug
    abuse treatment, the filtering software, and the sex-offender
    treatment “as directed,” although he did not specify by
    whom, as it did in the written order which specified the
    “probation office,” the “probation officer” and the “U.S.
    Probation Office.” Furthermore, when discussing condition 1
    at the sentencing hearing, the judge did not say anything
    about a ban on “mood altering substance[s]” even though
    the phrase appears in the written order.
    No. 13-1641                                                   9
    DISCUSSION
    Baker’s appeal is two-fold. He first challenges the super-
    vised release term, contending that the life term must be va-
    cated because it was based on an improper guidelines range,
    and in any event, the district judge did not adequately ex-
    plain why it was necessary. His second challenge is to four
    of the special conditions the judge imposed. He contends the
    district judge abused his discretion in imposing the four
    challenged conditions, as well as erred in having terms in
    the written order that differ from the terms announced at
    sentencing.
    I. Supervised Release Term
    A procedural error during sentencing may form the basis
    for reversal. “To avoid procedural error, sentencing judges
    must correctly calculate the guidelines range, evaluate the
    factors in 
    18 U.S.C. § 3553
    (a), and rely on properly support-
    ed facts.” United States v. Chapman, 
    694 F.3d 908
    , 913 (7th Cir.
    2012). We review de novo whether a guidelines range was
    properly calculated. United States v. Sandoval, 
    747 F.3d 464
    ,
    467 (7th Cir. 2014). We also review de novo whether a judge
    adequately explained his chosen sentence so as to permit
    appellate review. United States v. Poulin, 
    745 F.3d 796
    , 800
    (7th Cir. 2014).
    Both sides acknowledge that the guidelines range in the
    PSR, which the district judge adopted, was incorrect. As ex-
    plained in United States v. Goodwin, 
    717 F.3d 511
    , 520 (7th Cir.
    2013), a failure to register is not a “sex offense” for purposes
    of U.S.S.G. § 5D1.2(b)(2), so the “range” for Baker’s super-
    vised release term should have been the statutory term of 5
    10                                                  No. 13-1641
    years—no more, no less. It should not have been “5 years to
    life”; that was a procedural error. See Goodwin, 717 F.3d at
    520.
    In some cases, such an error may be harmless when the
    sentencing judge otherwise provides an explanation that
    would adequately support the chosen supervised release
    term, correct guidelines range or not. See United States v. Gul-
    ley, 
    722 F.3d 901
    , 910 (7th Cir. 2013) (“The issue before us is
    … whether we are convinced the judge would have imposed
    the same sentence but for the procedural error.”). However,
    when a judge imposes an above-guidelines range sentence
    but does not precisely explain why the departure was rea-
    sonable and necessary in light of the 
    18 U.S.C. §3553
    (a) fac-
    tors, we cannot presume the error was harmless. See United
    States v. Tovar-Pina, 
    713 F.3d 1143
    , 1148 (7th Cir. 2013). The
    sentencing judge here did not elaborate on why he thought
    an above-guidelines supervised release term was necessary.
    He simply stated, “Following your release from custody,
    you shall serve a lifetime term of supervised release.” This
    explanation is insufficient to support the life term. See Poulin,
    745 F.3d at 802 (explaining that the supervised release term
    should be vacated because the judge “did not provide any
    reasons for why he felt a life term … was appropriate”). The
    explanation is also insufficient for us to be certain the proce-
    dural error here was harmless. We therefore vacate Baker’s
    supervised release term and remand for resentencing using
    the correct guidelines term of 5 years. On remand, the judge
    will also have the opportunity to more fully explain his cho-
    sen supervised release term, which of course can be more or
    less than 5 years with appropriate explanation.
    No. 13-1641                                                   11
    II. Special Conditions of Release
    Baker challenges special condition 1—the ban on any al-
    cohol and mood altering substances; condition 3—the com-
    puter and internet monitoring requirement; condition 4—the
    prohibition on unsupervised contact with children, includ-
    ing his own; and condition 8—the sex-offender treatment
    program requirement. He also challenges the payment pro-
    vision in conditions 1, 3, and 8.
    When a sentencing judge modifies the original conditions
    of supervised release and in turn imposes new discretionary
    conditions on a defendant, the special 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 defendant; (2) involve
    no greater deprivation of liberty than is reasonably neces-
    sary for the purposes set forth in § 3553(a); and (3) [be] con-
    sistent with the policy statements issued by the Sentencing
    Commission.” United States v. Evans, 
    727 F.3d 730
    , 733 (7th
    Cir. 2013) (internal quotation marks omitted) (alteration in
    Evans). The judge has broad discretion when imposing spe-
    cial conditions, so we only review the judge’s decision for an
    abuse of discretion when the defendant objects to a given
    condition. United States v. Neal, 
    662 F.3d 936
    , 938 (7th Cir.
    2011). If a defendant fails to object in the district court, how-
    ever, we review the challenge on appeal solely for plain er-
    ror. United States v. Wolfe, 
    701 F.3d 1206
    , 1211 (7th Cir. 2012).
    A. Ban on Any Alcohol & Mood Altering Substances
    Baker first points out that the oral pronouncement of
    special condition 1 did not include the phrase “or mood al-
    12                                                 No. 13-1641
    tering substance.” The government admits in its response
    that “mood altering substance” seemingly refers to some-
    thing that is not “alcohol” or a “controlled substance,” which
    were the only provisions of condition 1 discussed at the sen-
    tencing hearing. This would also include various innocuous
    foods, vitamins, and beverages, all of which may be “mood
    altering.” Accordingly, the phrase is inconsistent with the
    terms of the condition that the judge orally pronounced at
    the sentencing, and in such a situation, the sentence pro-
    nounced from the bench controls. See United States v. Albu-
    ray, 
    415 F.3d 782
    , 788 (7th Cir. 2005) (“The rule in such situa-
    tions is clear: ‘If an inconsistency exists between an oral and
    the later written sentence, the sentence pronounced from the
    bench controls.’” (quoting United States v. Bonanno, 
    146 F.3d 502
    , 511 (7th Cir. 1998)). The extraneous language in the
    written order (i.e., “or mood altering substance”) must be
    removed from special condition 1.
    The crux of Baker’s argument regarding special condition
    1, however, is the ban on any alcohol. Indeed, Baker
    acknowledges that a ban on excessive use of alcohol would be
    appropriate. He simply does not believe that the record sup-
    ports a conclusion that he is addicted to alcohol or complete-
    ly dependent upon its use, such that an absolute prohibition
    is appropriate. See United States v. Simons, 
    614 F.3d 475
    , 480–
    81 (8th Cir. 2010) (explaining that the court has vacated a
    special condition involving a complete ban on alcohol
    “where the defendant’s history or crime of conviction did
    not support [it]”). The government agrees with that assess-
    ment, conceding that Baker has abused alcohol in the past
    but that there is no evidence that Baker’s alcohol use has
    contributed to his repeated criminal conduct or that Baker is
    dependent on alcohol. In light of that concession, we need
    No. 13-1641                                                  13
    not provide a full analysis explaining why a complete ban is
    inappropriate here. Cf. United States v. Schave, 
    186 F.3d 839
    ,
    842–43 (7th Cir. 1999) (holding that the district court did not
    abuse its discretion in imposing a special condition that
    banned all alcohol use). We do note though that some limita-
    tion on Baker’s use of alcohol is proper because Baker has
    been cited for illegal transportation of alcohol on two occa-
    sions, Baker told the presentence investigator that he con-
    sumed a six-pack of beer or more twice per week, and
    Baker’s breath tested positive for alcohol on two days in Au-
    gust 2011 while he was participating in a substance-abuse
    treatment program while on pre-trial release. These instanc-
    es demonstrate that Baker has abused alcohol in the past, so
    a condition barring him from consuming “certain” amounts
    of alcohol in the future involves no greater deprivation of
    liberty than is reasonably necessary.
    The question remains as to what amount of alcohol Baker
    should abstain from consuming. Both parties previously
    agreed that a condition simply prohibiting “excessive” use
    of alcohol, rather than “any” use, would be sufficient. That
    was before we decided United States v. Siegel, ___ F.3d ___,
    
    2014 WL 2210762
     (7th Cir. May 29, 2014). In Siegel, we vacat-
    ed conditions of supervised release requiring the defendant
    to refrain from “excessive use of alcohol” and from purchas-
    ing any “mood altering substance (excluding coffee, tea, and
    soda)” because they were unduly vague. 
    Id. at *9
    . Our con-
    clusion requiring “mood altering substance” to be deleted
    from condition 1 removes the question of the phrase’s legit-
    imacy from our consideration here. But as to the issue of
    whether the prohibition of “excessive” use of alcohol, with-
    out more, is appropriate, we do not believe so—even if the
    parties agreed to it. As we noted in Siegel, there are different
    14                                                 No. 13-1641
    definitions of what constitutes excessive use of alcohol. See
    
    id. at 10
    . Whether excessive constitutes the violation of any
    local, state, or federal law as a result of alcohol use; encom-
    passes any use that “adversely affects” one’s employment,
    relationships, or ability to comply with the conditions of su-
    pervision; or involves something specific to a particular in-
    dividual in a given day (e.g., a male defendant consuming
    more than four drinks in a sitting), that is not for us to de-
    cide at this point. Nevertheless, a condition prohibiting a de-
    fendant from “excessive” use of alcohol, without any further
    guidance or direction, will not pass muster. On remand, the
    judge should specify what constitutes excessive use of alco-
    hol as to Baker.
    Finally, although not addressed by either party, we high-
    light the fact that condition 1 requires Baker to undergo “not
    more than six tests per month to determine whether [he has]
    used controlled substances and/or alcohol.” As was the case
    with defendant Norfleet in Siegel, Baker is allowed to con-
    sume alcohol. So, the exact purpose of these tests, at least as
    to Baker’s use of alcohol, is unknown. See 
    id. at *10
     (“Pre-
    sumably the purpose of the tests is to see how much [the de-
    fendant has] consumed, but the statement of conditions of
    supervised release doesn’t say that.”). Whatever the answer
    is, we believe this involves questions best left to the sentenc-
    ing judge and the Probation Office—e.g., whether a test for
    alcohol is necessary to determine whether Baker has con-
    sumed a prohibited amount of alcohol, regardless of how the
    amount is defined; or how frequently any such test should
    occur.
    We vacate condition 1 and remand for further considera-
    tion of the issues discussed, noting that a restriction on
    No. 13-1641                                                  15
    Baker’s use of alcohol is proper if reasonably tailored and
    defined.
    B. Computer & Internet Monitoring
    Special condition 3 requires Baker to “participate with
    the U.S. Probation Office’s Computer and Internet Monitor-
    ing Program” and “install filtering software on any comput-
    er [he] posseses or use[s] which will monitor/block access to
    adult rape[-]related sites and child pornography.” The gov-
    ernment concedes that the filtering software provision
    should be vacated. Baker nevertheless challenges the entire-
    ty of condition 3 on the ground that there is not a sufficient
    nexus between Baker’s use of a computer and corresponding
    internet surfing, and the commission of a crime. Indeed,
    Baker was only convicted of a single count of failing to regis-
    ter as a sex offender, in violation of 
    18 U.S.C. § 2250
    (a). This
    is a conviction that in no way requires, or is facilitated
    through, the use of a computer. The government disagrees,
    focusing on the fact that Baker used a dating website to es-
    tablish an online—and later, in-person—relationship with a
    woman living in another state. It contends that Baker’s move
    from Illinois was what precipitated Baker’s failure to register
    conviction and that this would not have occurred but for
    Baker’s use of the computer. It further contends that Baker’s
    use of an alias on the dating website demonstrates Baker had
    an ulterior motive when accessing the internet. With that
    backdrop, the government believes the Probation Office
    should be allowed to monitor Baker’s computer usage.
    The government’s argument is weak, as even the sentenc-
    ing judge noted that the evidence supporting that condition
    was “barely enough.” Baker has to register as a sex offender
    wherever he goes. To agree with the government’s conten-
    16                                                 No. 13-1641
    tion, we would have to assume for a moment that Baker
    could not have established a relationship with the woman
    through more traditional means. Only then would it be pos-
    sible to say Baker’s use of the internet was what led to his
    move, assuming the move was essentially the cause of the
    violation. Here, it was Baker’s intent to live with the out-of-
    state woman he was communicating with that ultimately led
    to the move. This could have occurred through any number
    of ways that did not involve a computer.
    Moreover, whatever the reason for Baker’s move from Il-
    linois to Michigan, the move would not necessarily have led
    to a conviction for failing to register. It wasn’t simply the
    move that caused Baker to be in violation of the law. Rather,
    it was Baker’s conscious, intentional decision to flout his le-
    gal obligation to report for registration and update his ad-
    dress. If Baker had found employment through a website
    such as Linkedin or CareerBuilder, moved to Michigan or
    any other state, and failed to register there, Baker could have
    been convicted of the exact same offense at issue here. In
    that situation, it would be illogical to link Baker’s use of the
    computer to find a job with a subsequent conviction for fail-
    ing to register. The same is true here. Nothing about Baker’s
    use of his computer or the internet was illegal. And the gov-
    ernment has not tied Baker’s quest on the internet to find a
    dating partner to Baker’s prior affinity towards inappropri-
    ate sexual conduct or to any attempt to evade his registration
    obligations. The government even concedes in its brief that
    Baker accessed the website for a lawful purpose.
    Furthermore, one may not infer any improper motive
    from the simple fact Baker utilized a dating website. Their
    use is neither uncommon nor untoward. Baker may have
    No. 13-1641                                                 17
    used a pseudonym or alias on the website (“Rob Baker” in-
    stead of “Roy Baker”), which the government says lends
    support to a possible improper purpose. But a person might
    initially use a pseudonym on a dating website for any num-
    ber of reasons, including initial privacy or the desire to hide
    one’s identity from acquaintances who also might be on the
    website. That is arguably no different than applying for a job
    anonymously or even through a recruiter. Baker told the
    woman that he was a sex offender (granted, he may have
    minimized the offense), and as previously stated, there is no
    evidence linking Baker’s use of the alias on the website with
    an intent to avoid his registration requirements. Thus, the
    fact Baker used a pseudonym on the website cannot be the
    sole rationale for the computer monitoring requirement.
    Without more, the imposition of condition 3 was an abuse of
    discretion.
    C. Unsupervised Contact with Children
    Special condition 4 bars Baker from having unsupervised
    contact with children, including his own, unless a state court
    judge enters an order allowing otherwise. It essentially en-
    compasses two groups: Baker’s minor children and minors
    in general. The issue of no-contact conditions has been dis-
    cussed at length by this Court, in addition to other circuits
    across the country. See, e.g., Goodwin, 717 F.3d at 523–24 (va-
    cating a no-contact condition because the district court did
    not provide an explanation as to why it was reasonably re-
    lated to the defendant’s offense and background); United
    States v. Zobel, 
    696 F.3d 558
    , 564–65, 574–75 (6th Cir. 2012)
    (upholding a no-contact condition where the defendant
    knowingly coerced and enticed minors through online chat-
    ting and text messages to engage in sexual activity); Simons,
    18                                                  No. 13-1641
    
    614 F.3d at
    481–82 (upholding a condition that allowed the
    defendant to have contact with minors, including his own
    children, if he obtained his probation officer’s consent); Unit-
    ed States v. Rodriguez, 
    558 F.3d 408
    , 417–18 (5th Cir. 2009) (af-
    firming a special condition involving a complete ban on un-
    supervised contact with minors, including the defendant’s
    two minor children). The government concedes that the ban
    on supervised contact with Baker’s own children should be
    vacated, noting that there is no evidence that Baker has
    abused or attempted to abuse his own children, or that he is
    a danger to his own family. Cf. United States v. Lonjose, 
    663 F.3d 1292
    , 1302–03 (10th Cir. 2011) (recognizing “a funda-
    mental right of familial association” and vacating a condi-
    tion prohibiting the defendant from having contact with his
    minor son and other minor relatives unless he received ad-
    vance permission from his probation officer). We therefore
    vacate special condition 4. On remand, the judge should also
    consider the scope of the condition and Baker’s argument
    that an exception should be included “for commercial busi-
    ness and in cases of incidental or unintentional conduct”
    with minors in general.
    D. Sex-Offender Treatment Program
    Baker contends that condition 8, which requires him to
    complete a sex-offender treatment program, is not reasona-
    bly related to the nature and circumstances of his offense, as
    required by 
    18 U.S.C. § 3583
    (d)(1). In support, he again di-
    rects us to Goodwin. In Goodwin, this Court sua sponte vacated
    a condition requiring the defendant to undergo sex offender
    treatment because the defendant’s offense (failure to register
    as a sex offender) did not have “any connection” to “the
    purposes that sex offender treatment and mental health
    No. 13-1641                                                  19
    counseling typically serve.” 717 F.3d at 525–26. The obvious
    difference between Goodwin and this case, however, is the
    restaurant incident with the two minor girls. Even Baker
    acknowledges this is a “plausible distinction,” which is not
    to be taken lightly.
    We are confronted with the question of whether the pur-
    poses of sex offender treatment have “any connection” to
    Baker’s failure to register offense. Individuals who have
    been convicted of sex offenses are required to register as sex
    offenders for a number of reasons not limited to protecting
    the safety of others. See 
    42 U.S.C. § 16901
     (explaining that the
    purpose of SORNA is “to protect the public from sex offend-
    ers and offenders against children, and [to] respon[d] to the
    vicious attacks by violent predators”). Sex offender treat-
    ment may not be warranted in many cases where the base
    offense is a failure to register, but recent conduct demon-
    strating a propensity to commit sex offenses would seem to
    always provide a justification for the condition. See United
    States v. Evans, 
    727 F.3d 730
    , 733–34 (7th Cir. 2013) (“Even if
    there is no substantive connection between the crime of pun-
    ishment and the defendant’s sexual misconduct, the sexual
    misconduct may be so recent or prominent in the defendant’s
    behavior that a sentencing court aiming to protect the public
    and rehabilitate the defendant would be entitled to address
    it.”) (emphasis added); see also United States v. Morales-Cruz,
    
    712 F.3d 71
    , 74 (1st Cir. 2013) (“[S]ex offender treatment may
    be imposed in a case in which the underlying crime in not a
    sex offense.”); United States v. Hahn, 
    551 F.3d 977
    , 984 (10th
    Cir. 2008) (“[N]othing in [
    18 U.S.C. § 3583
    (d)] limits the spe-
    cial condition of sex-offender treatment to defendants under
    prosecution for sex crimes.”) (alteration in Hahn). The inci-
    dent in late 2007 may have occurred roughly four years be-
    20                                                 No. 13-1641
    fore the failure to register conduct and five years before
    Baker was sentenced, but to say that it is “outdated,” as
    Baker contends, is not accurate. Baker has spent most of his
    life incarcerated, and he engaged in the 2007 conduct not
    long after he was released from prison. This fact significantly
    increases the temporal connection between the time of the
    conduct and the time of Baker’s base offense here.
    Baker attempts to further distinguish Evans on the
    ground that his 2007 conduct did not result in an arrest. That
    is not dispositive. The facts regarding Baker’s conduct are
    disturbing. Baker reached out to minor girls, engaged in ex-
    plicit sexual conversations with them, took them to an area
    of isolation, and solicited sexual activity with them at a later
    date. This is a prominent example of the defendant’s behav-
    ioral history. See Evans, 727 F.3d at 734. That no arrest or
    prosecution followed Baker’s actions does not indicate the
    events did not occur as the girls testified at the sentencing
    hearing. The judge implicitly found their testimony to be
    credible by relying on it when making his sentencing deter-
    minations. The judge also was not merely relying on a bare-
    bones, unsubstantiated police report. Accordingly, that
    Baker was not arrested or prosecuted for his 2007 conduct
    did not prohibit the sentencing judge from considering the
    testimony as evidence of Baker’s history and characteristics,
    which are important considerations when imposing a special
    condition. See 
    18 U.S.C. § 3661
     (“No limitation shall be
    placed on the information concerning the background, char-
    acter, and conduct of a person convicted of an offense which
    a court of the United States may receive and consider for the
    purpose of imposing an appropriate sentence.”); United
    States v. Jones, 
    635 F.3d 909
    , 917 (7th Cir. 2011) (“In arriving
    at an appropriate sentence, ‘a judge may appropriately con-
    No. 13-1641                                                  21
    duct an inquiry broad in scope, largely unlimited as to the
    kind of information he may consider, or the source from
    which it may come.’” (quoting United States v. Tucker, 
    404 U.S. 443
    , 446 (1972))); see also Neal, 
    662 F.3d at
    938–939 (“The
    district judge properly considered [the defendant’s] history
    and character, noting that he smoked marijuana on a daily
    basis in the past, had used illegal substances in 1999 and
    2000 before he was arrested, and had used cocaine prior to
    his incarceration.”). Nor does it take this case beyond the
    purview of our reasoning in Evans. We find that the tem-
    poral connection between the 2007 incident and the failure to
    register offense (which the sentencing judge thought was
    “recent enough”), coupled with the gravity of Baker’s con-
    duct, created a sufficient nexus between Baker’s conduct and
    the § 3553(a) factors for the sentencing judge to impose the
    sex-offender treatment condition. See Evans, 727 F.3d at 735.
    Baker’s alternative argument is that the sex-offender
    treatment condition involves a greater deprivation of liberty
    than necessary because the judge did not limit how long
    Baker is required to undergo treatment. This argument is
    grounded in the fact that the judge imposed a life term of
    supervised release; so conceivably, Baker could be required
    to attend sex-offender treatment for the rest of his life. In-
    deed, as we have explained, certain conditions of release
    “may require strong justification when extended for a life-
    time.” United States v. Quinn, 
    698 F.3d 651
    , 652–53 (7th Cir.
    2012) (“The judge also should consider the possibility of set-
    ting sunset dates for some of the more onerous terms, so [the
    defendant] can regain more control of his own activities
    without needing a public official’s advance approval, while
    enough supervision remains to allow intervention should
    [the defendant] relapse.”). But the basic premise of Baker’s
    22                                                          No. 13-1641
    argument has been addressed; we have already held that
    Baker’s term of supervised release must be vacated because
    it was based on an improper guidelines range. On remand,
    the sentencing judge will be able to address the length of
    Baker’s supervised release, which in turn affects the length
    of the sex-offender treatment requirement. Baker’s argument
    on this point is moot.
    E. Payment Provision of Conditions 1, 3 & 8
    Conditions 1, 3, and 8 of the written judgment require
    Baker to pay for the costs or services of the particular condi-
    tion “as directed” by “the probation office,” “the probation
    officer,” and “the U.S. Probation Office,” respectively. 2 The
    conditions do not specify what will happen if Baker bears
    the burden of paying and is unable to do so. Siegel, 
    2014 WL 2210762
    , at *8 (“Nothing is said about what happens if he
    can’t pay the entire cost. Will his supervised release be re-
    voked because he won’t be complying with the conditions in
    question in their entirety? Or will the government pay for
    them? It must mean the latter … .”). This is problematic be-
    cause conditions of supervised release must make clear what
    conduct is prohibited, see United States v. Preacely, 
    702 F.3d 2
     Any argument that the payment conditions should be vacated because
    the written judgment, explicitly stating the entity or official who can di-
    rect Baker to pay, is inconsistent with the oral pronouncement, which
    only says “as directed” without specifying by whom, is unavailing. The
    specifications in the written judgment clarify the oral pronouncement;
    they are not inconsistent with an unambiguous provision. See United
    States v. Bonanno, 
    146 F.3d 502
    , 511–12 (7th Cir. 1998); see also United
    States v. Zepeda, 
    329 Fed. Appx. 647
    , 649 (7th Cir. 2009) (stating that “an
    oral pronouncement of sentence, if unambiguous, controls over a con-
    flicting written one”).
    No. 13-1641                                                             23
    373, 376 (7th Cir. 2012), as well as the scope of the provi-
    sions. See Siegel, 
    2014 WL 2210762
    , at *11 (vacating a special
    condition because the sentencing did not make clear that the
    behavior therapy program it required the defendant to com-
    plete would not necessarily have to continue for the entire
    supervised release term); see also United States v. Monteiro,
    
    270 F.3d 465
    , 473 (7th Cir. 2001) (vacating a “vague and
    overbroad” special condition so the sentencing judge could
    “craft more precisely” its terms). A defendant may not be
    recommitted to prison “for mere inability to pay,” Siegel,
    
    2014 WL 2210762
    , at *11, and the conditions should account
    for the possibility of Baker failing to satisfy any payment re-
    quirement imposed. This deficiency is an error that the judge
    must address on remand. 3 It is unnecessary for us to address
    Baker’s alternative arguments.
    CONCLUSION
    We VACATE Baker’s supervised release term, special
    conditions 1 and 4, and the payment provision in conditions
    1, 3, and 8; and REMAND for resentencing consistent with
    this opinion. We AFFIRM Baker’s prison term and all of the
    other terms in the special conditions imposed.
    3
    The government contends our review of the condition is confined to
    plain error because Baker did not specifically object to the part of the
    conditions requiring him to pay. See United States v. Fluker, 
    698 F.3d 988
    ,
    1003 (7th Cir. 2012). The deficiency we have identified is a reversible er-
    ror, regardless of which standard of review is applied. See Goodwin, 717
    F.3d at 522–23 (declining to resolve the issue of whether plain-error re-
    view or review for abuse of discretion applied because the special condi-
    tions were required to be vacated under either standard).