United States v. Reynaldo Sanchez ( 2022 )

United States Court of Appeals
For the Eighth Circuit
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No. 21-2415
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Reynaldo Sanchez
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Western District of Arkansas - Fayetteville
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Submitted: April 11, 2022
Filed: August 15, 2022
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Before LOKEN, ARNOLD, and KOBES, Circuit Judges.
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LOKEN, Circuit Judge.
Reynaldo Sanchez pleaded guilty to transportation of child pornography in
violation of 18 U.S.C. §§ 2252A(a)(1) and (b)(1). At sentencing, the district court1
determined an advisory guidelines sentencing range of 108 to 135 months in prison,
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The Honorable Timothy L. Brooks, United States District Judge for the
Western District of Arkansas.
considered the 18 U.S.C. § 3553(a) sentencing factors, and imposed a sentence of 96
months imprisonment and 20 years of supervised release. The court imposed seven
special conditions of supervised release including, over Sanchez’s timely objection,
that he “submit to periodic polygraph testing at the discretion of the probation office
as a means to ensure that he is in compliance with the requirements of his supervision
or treatment program.” Sanchez appeals his sentence, presenting as the issue for
review whether the district court abused its discretion in “requiring Mr. Sanchez to
submit to periodic polygraph testing at the discretion of the U.S. Probation Office.”
We affirm.
I.
After Homeland Security investigators traced twenty images of child
pornography to Sanchez’s Twitter account, law enforcement conducted a warrant
search of his home in September 2019. A forensic search of his phone uncovered
sixty images of child pornography and two hundred images of child erotica of
children aged five to fifteen years old. Investigators also found chat logs from 2017
and 2019 in which Sanchez requested sexually explicit pictures of females of an
unknown age and described his fantasies of sexual relations with children.
During the warrant search, Sanchez waived his Miranda rights, confirmed the
Twitter account was his, and admitted using Twitter to search for child pornography,
saving images to his phone, and sending images to others. Sanchez said he knew the
search was related to child pornography because agents had previously conducted a
warrant search of his home for child pornography. Paragraph 30 of the Presentence
Investigation Report referred to that statement: “The [earlier] case was referred to the
Washington County Prosecutor’s Office; however, no charges were filed.”
At sentencing, the district court inquired regarding Paragraph 30. In response,
the government advised that Homeland Security agents conducted a warrant search
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of Sanchez’s home in 2015 based on an IP address that was participating in child
pornography via a peer-to-peer file sharing program. After Sanchez admitted
downloading child pornography of children as young as three to five years, twelve
images and ten videos were found on his device. The case was referred to the county
prosecutor, but the state prosecutor’s office ultimately declined to prosecute. The
district court advised that the 2015 incident “has no impact on the guideline
calculation [but] it’s a relevant [§ 3553(a)] consideration”:
To the extent one needed a wake-up call that it was wrong to view
images of child pornography, Mr. Sanchez, that was your wake-up call.
And the Court finds it very disturbing that you would waste a second
chance. The Court is concerned that the only thing that not pursuing
prosecution in 2015 has done is to make you a better perpetrator. I
noticed that the images [here] were only on the phone. I don’t know if
you thought that perhaps if it was on your phone, you couldn’t be traced.
After hearing argument on Sanchez’s objection to the polygraph testing special
condition, the district court explained at length its decision to impose this special
condition. The court referred to a government report explaining why polygraph
testing is recognized as an appropriate tool for sex offender management:
[T]his Court does not read that report to say that polygraph testing is
appropriate or should be required in every sex offense case. Rather . . .
the condition is recommended to be imposed on sex offenders who, one,
are hands-on sex offenders, or, two, are at risk or have predispositions
towards becoming hands-on offenders in the future. And . . . it certainly
could be appropriate in situations where an offender has been dishonest,
has lied, has taken affirmative measures to conceal or deceive detection
in the past.
The court found Sanchez’s fantasy chatting “very disturbing” because it raises
concern that Sanchez, though not in the past a hands-on offender, “was on a pathway
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towards acting out on his fantasies.” Given that risk of hands-on reoffending, and the
fact “he was not deterred when confronted by law enforcement in 2015,” the court
found that polygraph testing is “an appropriate tool for probation to have in its
arsenal.”
II.
Our court has published many opinions reviewing challenges to special
conditions of supervised release imposed in sentencing sex offenders. Our standards
for this review are well established. Procedurally, the district court “must conduct an
inquiry on an individualized basis, looking at the specific facts of the defendant’s
criminal history and his particular offenses, and make a particularized showing of the
need for the condition in each case.” United States v. Springston, 650 F.3d 1153,
1156 (8th Cir. 2011) (cleaned up), vacated on other grounds, 566 U.S. 931 (2012).
“District courts are encouraged to provide an explanation of how the conditions
satisfy the requirements of [18 U.S.C.] § 3583(d), but where the basis for the special
conditions can be discerned from the record, reversal is not required.” United States
v. Simpson, 932 F.3d 1154, 1156 (8th Cir. 2019), cert denied,140 S. Ct. 826 (2020);
see United States v. Smith, 960 F.3d 1107, 1109 (8th Cir. 2020).
When the district court has conducted an appropriate individualized inquiry,
we deferentially review the special condition for abuse of discretion. “District courts
have wide discretion to impose conditions of supervised release so long as they are
reasonably related to (1) the nature and circumstances of the offense; (2) the
defendant’s history and characteristics; (3) the deterrence of criminal conduct; (4) the
protection of the public from further crimes of the defendant; and (5) the defendant’s
educational, vocational, medicinal, or other correctional needs.” United States v.
Muhlenbruch, 682 F.3d 1096, 1102 (8th Cir. 2012) (quotations omitted); see United
States v. Wiedower, 634 F.3d 490, 493 (8th Cir. 2011). Our ad hoc opinion as to the
wisdom of a particular special condition does not outweigh the careful consideration
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of the sentencing judge and the probation officers who will be responsible for
supervising the defendant when he has completed his term of imprisonment.
In this case, we review a special condition, polygraph testing, that has been in
common use throughout the country. Many of our sister circuits have rejected frontal
attacks on this type of special condition, concluding “that polygraph testing may
serve salutary purposes in the supervised release context.” United States v. Johnson,
446 F.3d 272, 277 (2d Cir.), cert. denied, 549 U.S. 953 (2006), and cases cited. A
polygraph test may provide an added incentive to be truthful to the probation officer,
which assists supervision and monitoring. Id. Sanchez cites not one case, not even
a dissenting opinion, expressing a contrary view. Our court has frequently upheld
this special condition, including at least one condition virtually identical to the one
here at issue. See Simpson, 932 F.3d at 1156. Indeed, polygraph testing special
conditions have become so common and widely accepted that, in most of our
decisions, the district court did not explain why the condition was appropriate for the
defendant being sentenced, but we could discern the basis for the condition from the
record and affirmed. See, e.g., Smith, 960 F.3d at 1109; Simpson, 932 F.3d at 1156;
United States v. Newell, 915 F.3d 587, 590-91 (8th Cir. 2019); United States v.
Thompson, 888 F.3d 347, 351-52 (8th Cir. 2018).
Here, the district court did not procedurally err. It conducted a thorough
individualized analysis of the sentence it was imposing. The seven special conditions
of supervised release require that Sanchez (5) “participate in a sex offense-specific
treatment program,” and (6) “submit to periodic polygraph testing . . . to ensure that
he is in compliance with the requirements of his supervision or treatment program.”
In response to Sanchez’s timely objection, the court carefully explained why the
sentence would include this polygraph testing special condition. Thus, the issue on
appeal is limited to whether the court abused its wide discretion to impose reasonable
special conditions.
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Sanchez acknowledges our precedents affirming polygraph testing
requirements for child pornography offenders, but distinguishes those cases as
involving polygraph testing imposed as a component of sex-offender treatment, or on
a defendant who was dishonest, deceptive, or uncooperative. By contrast, Sanchez
argues, he is not a hands-on offender, truthfully admitted his illegal activity to law
enforcement, and fully complied with his conditions of pretrial release. Therefore,
he posits, a polygraph testing condition is not reasonably related to the § 3553(a)
factors and involves a greater deprivation of liberty than is reasonably necessary. But
our cases have never limited imposition of polygraph testing to defendants who fall
in the categories he describes. This argument fails to suggest an abuse of discretion.
Sanchez argues that our court and others have limited the use of polygraph test
results at trial because they can be inaccurate and unreliable. This argument does not
apply. In the supervised release context, “polygraph testing is for treatment, not for
evidence at trial or sentencing.” Smith, 960 F.3d at 1110; see United States v. Lee,
315 F.3d 206, 214 (3d Cir.), cert. denied, 540 U.S. 858 (2003).
Sanchez also argues his other conditions of supervised release “were sufficient
to address” the district court’s concern over the likelihood of future hands-on
offenses, making this condition a greater deprivation of liberty than is reasonably
necessary. But his deprivation focus is faulty. The standard conditions of supervised
release, which the district court imposed here, include obligations that Sanchez report
to the probation officer as instructed and “answer truthfully the questions asked by
the probation officer.” USSG § 5D1.3(c)(1)-(2) and (4). “The additional requirement
that [he] be subject to polygraph testing does not substantially increase the burden on
him.” Lee, 315 F.3d at 214.
Sanchez further argues the special condition is overbroad because it “would
permit polygraph examination to be used at the discretion of Probation in an attempt
to sniff out potential violations in the ordinary course of its supervision of a
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defendant.” We disagree. The district court expressly stated that polygraph testing
is “not to be used to ensnare people” but is instead “a preventative measure.” Thus,
the court recognized that polygraph questioning should be limited to issues that relate
to “supervision, monitoring, and treatment.” Lee, 315 F.3d at 215. The special
condition explicitly links the probation officer’s discretion to Sanchez’s compliance
with supervision or his treatment program. “Polygraph testing supports the
Sentencing Commission’s policy that sex offenders participate in a program for
treatment and monitoring.” Smith, 960 F.3d at 1110 (citing USSG § 5D1.3(d)(7)(A)).
Sanchez “has recourse to the district court if he objects to the direction of the
probation office.” Thompson, 888 F.3d at 352.
Turning to the district court’s reasons for imposing this special condition,
Sanchez argues (i) his fantasy chats do not show he is a predator on a pathway to
acting out those fantasies, and (ii) the district court placed too much emphasis on his
2015 encounter with law enforcement, which “was not serious enough to merit
prosecution or punishment.” But this is simply disagreeing with the district court; it
does not establish abuse of discretion. The court found that chat transcripts quoted
in the PSR graphically describing to others Sanchez’s desire for sexual encounters
with minors “very disturbing” because they persuaded the court “that he is a person
who has predatory thoughts. He is a person who is at risk of committing future
hands-on offenses.” That finding is not unreasonable. See Wiedower, 634 F.3d at
494 (affirming polygraph condition based in part on defendant’s participation in a
“fetish chat room”). Regarding the 2015 incident, it strongly supported imposing this
special condition for the reasons explained by the district court.
III.
Polygraph testing, like other special conditions of supervised release, cannot
be routinely imposed on all sex offenders. As the district court expressly recognized,
it must be warranted by an individualized inquiry into a particular offender’s
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circumstances. See Thompson, 888 F.3d at 351-52. The court carefully made that
inquiry. In light of the widely recognized public benefits of polygraph testing in
treating and managing many sex offenders who are on supervised release, the district
court did not abuse its discretion in concluding that polygraph testing was “an
appropriate tool for probation to have in its arsenal in this case.”
Sanchez has not met his burden “to establish that a special condition is
unreasonable.” United States v. Deatherage, 682 F.3d 755, 765 (8th Cir. 2012). The
judgment of the district court is affirmed.
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