United States v. Roy Baker

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).