United States v. Charles Goodwin

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-2921
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
C HARLES G OODWIN,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 2:11-cr-20036-RM-BGC-1—Richard Mills, Judge.
A RGUED JANUARY 15, 2013—D ECIDED M AY 8, 2013
Before P OSNER, W OOD , and T INDER, Circuit Judges.
T INDER, Circuit Judge. Charles Goodwin pleaded guilty
to knowingly failing to register and update a registra-
tion as a sex offender, as required by the Sex Offender
Registration and Notification Act (“SORNA”). He was
sentenced to 27 months’ imprisonment, to be followed
by a life term of supervised release, subject to ten
special conditions. Goodwin claims that the relevant
SORNA provision is an unconstitutional delegation of
2 No. 12-2921
legislative authority; argues that the district court com-
mitted plain error by miscalculating his advisory Sen-
tencing Guidelines range for supervised release and
then imposing a sentence within that miscalculated
range; and challenges four conditions of his supervised
release. We find his nondelegation claim unpersuasive,
and therefore affirm his conviction. We further hold that
the erroneous calculation of the advisory Guidelines
range and the imposition of special conditions without
explanation by the district court or support in the
record warrant vacating his sentence and remanding to
the district court for resentencing.
I. B ACKGROUND
A. Goodwin’s History & Current Offense
In 1994, Goodwin pleaded no contest to a charge of
an attempted lewd and lascivious act in the presence of
a child. Although the full extent of the conduct sup-
porting the charge is now in dispute, it suffices to say
for the purposes of this appeal that Goodwin concedes
that he did not contest the charge.1 Goodwin received
1
The government’s brief makes reference to additional facts
contained in the police report from this incident. This report
alleges conduct far beyond that used as the basis for the convic-
tion. To the extent that the police report conflicts with and
includes information extraneous to that contained in the
charging document, plea agreement, or plea colloquy, we do
not rely on its description of Goodwin’s conduct. Cf. Shepard
(continued...)
No. 12-2921 3
a noncustodial sentence of three months’ community
control (a Florida program under which offenders are
geographically constrained) and three years’ probation.
Unbeknownst to Goodwin at the time, this light sen-
tence was only the beginning of his self-inflicted trou-
bles. In December 2006, he was convicted of failure
to register as a sex offender in Douglas County (Illinois)
Circuit Court. On August 27, 2007, Goodwin registered
as a sex offender in Illinois, listing as his residence a
homeless shelter in Champaign. Staff at this shelter
did not observe Goodwin there after September 17.
By October 2, Goodwin had moved to Florida, where
he registered as a sex offender on that date. He was
notified by Florida authorities that he was required
to re-register in April 2008, but failed to do so. He
was arrested in Florida in July 2008 for this failure to
register. While in state custody, he registered as a sex
offender and was notified that he was required to re-
register in October 2008.
Goodwin moved from Florida to Illinois in Septem-
ber 2008. Having left the state—or fled, according to his
ex-wife—Goodwin failed to appear at an October 15
court date stemming from his earlier failure to register
1
(...continued)
v. United States, 544 U.S. 13, 16 (2005) (holding that a sen-
tencing court cannot look to police reports to determine
whether a guilty plea to an earlier offense is classifiable as a
violent felony in determining whether certain penalty provi-
sions apply during the sentencing hearing for a later offense).
4 No. 12-2921
in Florida. He also failed to re-register that month
in Florida, as required under Florida law. He further
failed to register in Illinois following his move, running
afoul both of Illinois’s sex-offender-registry law and
of SORNA, which makes it a felony for a sex offender
knowingly to fail to register following an interstate
move, 18 U.S.C. § 2250(a).
Goodwin was arrested in Vermilion County, Illinois,
on June 29, 2011. On July 13, a federal grand jury re-
turned an indictment alleging that he was required to
register under SORNA based on his 1994 conviction,
but knowingly failed to do so when he traveled from
Florida to Illinois in September 2008 and thereafter.
Goodwin pleaded guilty on April 25, 2012.
Following Goodwin’s guilty plea, a probation officer
prepared his Presentencing Report. The probation officer
classified Goodwin’s offense level as 10 and his criminal
history category as V, leading to a Guidelines range of
21 to 27 months’ imprisonment. The officer then stated
that the Guidelines advised a period of supervised
release of five years to life, citing U.S.S.G. § 5D1.2(b)(2)
& (c). The Presentencing Report did not include recom-
mendations regarding either any mandatory or special
conditions related to the recommended period of super-
vised release.
On August 16, the district court sentenced Goodwin to
27 months’ imprisonment, to be followed by a life term
of supervised release. In reaching this sentence, the
district court considered the factors listed in 18 U.S.C.
§ 3553(a). Specifically, the court considered Goodwin’s
No. 12-2921 5
criminal history, particularly his repeated disregard of
sex-offender-registration laws, but also noted that his
difficult childhood and history of drug use and mental
health issues provided some mitigation. The district
court also imposed ten special conditions on Goodwin’s
period of supervised release. The following four condi-
tions are at issue in this appeal:
Condition 4: You shall participate with the U.S. Pro-
bation Office’s Computer and Internet
Monitoring Program . . . . You shall in-
stall filtering software on any computer
you possess or use, which will monitor
and block access to sexually oriented
website[s]. You shall allow the probation
officer unannounced access to any com-
puter you possess or use to verify that
the filtering software is functional . . . .
You shall submit to the search of
your person, automobile, and property
under your control by the probation
officer. You shall allow the probation
officer to conduct periodic, unannounced
examinations of your computer equip-
ment . . . which may include retrieval
and copying of all data from your
device . . . or removal of such equipment
for the purpose of conducting a more
thorough inspection.
Condition 5: You shall have no contact with any per-
son under the age of 18 except in the
6 No. 12-2921
presence of a responsible adult who is
aware of the nature of your background
and current offense, and who has been
approved by the probation officer.
Condition 6: You shall neither possess nor have under
your control any material, legal or
illegal, that contains nudity or that de-
picts or alludes to sexual activity or de-
picts sexually arousing material . . . .
Condition 7: You shall not receive or transmit any
sexually arousing material, including
child pornography, via the internet, nor
visit any website . . . containing any
sexually arousing material, including
child pornography.
The district court did not discuss its reasons for
imposing these special conditions. Immediately after
stating the conditions, the court asked Goodwin a ques-
tion concerning an unrelated topic. Neither party ob-
jected to the imposition of these conditions.
B. The Sex Offender Registration and Notification Act
Since one of the issues in this appeal concerns the
constitutionality of SORNA, we provide a brief overview
of the relevant sections of this statute and applicable
regulations. Congress enacted SORNA in 2006 as part of
a larger bill, the Adam Walsh Child Protection and
Safety Act (“the Adam Walsh Act”), Pub. L. No. 109-248,
120 Stat. 587, aimed at establishing national standards
No. 12-2921 7
for sex-offender registration programs. 42 U.S.C. §§ 16911-
16929. In the introductory section to the law, Congress
stated that SORNA’s purpose is “to protect the public
from sex offenders . . . and respon[d] to the vicious
attacks by violent predators.” 42 U.S.C. § 16901. With
this purpose in mind, Congress “establish[ed] a compre-
hensive national system for the registration of those
offenders.” Id. Offenders must update their registration
in this new registration system within three days of any
change in name, residence, employer, or student status.
42 U.S.C. § 16913(c). SORNA also makes it a felony for
a covered offender to travel in interstate or foreign com-
merce and knowingly fail to register or update his or
her registration. 18 U.S.C. § 2250(a).
SORNA grants the Attorney General the “authority
to specify the applicability of the [registration] require-
ments . . . to sex offenders convicted before the enact-
ment of [SORNA].” 42 U.S.C. § 16913(d). Beyond this
general grant of authority, the statute contains no provi-
sion that provides guidance to the Attorney General
regarding what factors to consider in making this deter-
mination.
In February 2007, the Attorney General issued an
interim regulation, pursuant to his authority under
§ 16913(d), which applied SORNA’s registration require-
ments to all pre-enactment sex offenders. 72 F.R. 8894,
8897. The Attorney General made this regulation perma-
nent in July 2007. 73 F.R. 38063.
8 No. 12-2921
II. A NALYSIS
Goodwin presents three issues on appeal. First, he
renews his constitutional objection to 42 U.S.C.
§ 16913(d)—which, again, grants the Attorney General
the discretion to prosecute for failure to register under
SORNA offenders whose convictions predate the en-
actment of SORNA—as an unconstitutional delegation
of legislative authority to the executive branch. Second,
he argues that the district court’s miscalculation of the
advisory Guidelines range for his term of supervised
release constitutes plain error. Third, he claims that
Conditions 4 through 7 are not reasonably related to
his failure-to-register offense, involve a greater depriva-
tion of liberty than is necessary, and violate the First
Amendment. We address these arguments in turn.
A. The Constitutionality of SORNA
Goodwin claims that the provision of SORNA
under which he was convicted violates nondelegation
principles and therefore is unconstitutional. We review
the constitutionality of a federal statute de novo. United
States v. Hausmann, 345 F.3d 952, 958 (7th Cir. 2003). A
delegation is “constitutionally sufficient if Congress
clearly delineates [1] the general policy, [2] the public
agency which is to apply it, and [3] the boundaries of
this delegated authority.” Am. Power & Light Co. v. SEC,
329 U.S. 90, 105 (1946).
Here, all three requirements are met. SORNA directs
the Attorney General to exercise his discretion in a
No. 12-2921 9
manner consistent with the intelligible principle of “pro-
tecting the public” from sex offenders and estab-
lishing a “comprehensive” registry; the statute identifies
the Attorney General as the official to exercise this dele-
gated authority; and the Attorney General’s authority
is narrowly restricted to determining the applicability
of SORNA to offenders whose crimes predate the
statute’s enactment.
First, SORNA provides an intelligible principle to
guide the Attorney General’s exercise of delegated au-
thority. When Congress confers policymaking authority
on executive branch officials, it must “lay down by legisla-
tive act an intelligible principle to which the person or
body authorized to [act] is directed to conform.” Whitman
v. Am. Trucking Ass’ns, 531 U.S. 457, 472 (2001) (quotation
marks and citation omitted). The principle set forth
in SORNA to guide the Attorney General’s discretion
qualifies as intelligible. SORNA contains a clear state-
ment of Congress’s purpose in enacting the statute:
In order to protect the public from sex offenders
and offenders against children and [to] respon[d]
to the vicious attacks by violent predators against
the victims listed below, Congress . . . establishes
a comprehensive national system for the registra-
tion of those offenders.
42 U.S.C. § 16901.
This section provides sufficient guidance to the
Attorney General for two reasons: (i) § 16901 conveys
to the Attorney General that the delegated authority
should be exercised with the goal of “protect[ing] the
10 No. 12-2921
public” from a specific class of criminals; and (ii) § 16901
notifies the Attorney General that he or she should
act in a manner that furthers Congress’s objective of a
“comprehensive” registration system. See United States
v. Ambert, 561 F.3d 1202, 1214 (11th Cir. 2009) (“By setting
forth the broad policy goal of protecting the public and
seeking a ‘comprehensive’ national registry, Congress
has suggested that the Attorney General should require
pre-2006 sexual offenders to register to the extent that
he determines it would contribute to the protection of
the public and the comprehensiveness of a national sex
offender registry.”). The guidance that SORNA provides
regarding protecting the public from specified offenders
constitutes an intelligible principle. Cf. Yakus v. United
States, 321 U.S. 414, 420 (1944) (directive that any regula-
tion be “generally fair and equitable” qualifies as an
intelligible principle); Nat’l Broad. Co. v. United States,
319 U.S. 190, 216-17 (1943) (principle that regulators
act “in the public interest” qualifies).
Second, SORNA specifies the Attorney General as the
executive branch official designated to exercise
delegated authority. Thus, the nondelegation doctrine’s
requirement that Congress “clearly delineate[ ] . . . the
public agency which is to apply [the policy],” Am. Power &
Light Co., 329 U.S. at 105, is met.
Third, SORNA sets clear boundaries on the Attorney
General’s exercise of discretion in virtually every
respect, with the exception of the provision at issue in
this case. The statute contains detailed directives re-
garding virtually every aspect of the establishment of
No. 12-2921 11
the national registry. For instance, Congress determined
which crimes require registration, 42 U.S.C. § 16911,
the locations, deadlines, and methods for registration,
42 U.S.C. § 16913(a)-(c), and the specific penalties for
violations, 18 U.S.C. § 2250(a). Indeed, the determina-
tion of whether the statute applies to pre-enactment
offenders is one of the few areas in which the Attorney
General exercises discretion. See Ambert, 561 F.3d at
1214 (“Congress made virtually every legislative de-
termination in enacting SORNA, which has the effect
of constricting the Attorney General’s discretion to
a narrow and defined category.”).
We arrived at this same conclusion in United States
v. Dixon, a similar constitutional challenge to SORNA
on nondelegation grounds. 551 F.3d 578, 583-84 (7th Cir.
2008) rev’d on other grounds and remanded sub nom. Carr
v. United States, 130 S. Ct. 2229 (2010). This court will not
re-examine a recent decision unless presented with a
compelling reason for doing so, e.g., a legislative or
regulatory change, a judicial decision concerning a
related or analogous issue, or changes in the social or
economic context surrounding the decision. See United
States v. Dickerson, 705 F.3d 683, 689 (7th Cir. 2013).
Goodwin does not present any argument that could
generously be described as responding to new or
changed conditions. Instead, he argues that the Supreme
Court’s reversal of Dixon on grounds having nothing
to do with nondelegation “should call into question”
the continued validity of Dixon as precedent con-
cerning the constitutionality of SORNA on nondelega-
tion grounds. We think that the opposite conclusion is
12 No. 12-2921
more sensible. Since the Carr Court expressly declined
to comment on our finding in Dixon that SORNA does
not violate the Constitution, Dixon remains good law
on this issue. See Carr, 130 S. Ct. at 2242 n.2 (noting
that SORNA delegates authority to the Attorney
General, and expressly stated that the Court “does not
address the validity of this regulation”). Thus, Dixon’s
continued applicability presents an additional impedi-
ment to Goodwin’s nondelegation claim.
B. The Term of Supervisory Release
In challenging the lifetime restriction of his super-
vised release, Goodwin calls our attention to the section
of the Presentence Report (PSR) concerning supervised
release. This section states that the Guidelines advise
a supervisory period of five years to life for Goodwin’s
offense, citing two Guidelines provisions, U.S.S.G.
§ 5D1.2(b)(2) and (c), for this proposition. Based on
this supposed authority, the report recommends a life
term of supervision. Goodwin argues that U.S.S.G.
§ 5D1.2(b)(2) is inapplicable to his offense, that the
report erroneously relied on this Guideline in recom-
mending a life term of supervised release, and that the
district court’s sentencing him to a life term of super-
vised release under the incorrect assumption that this
sentence was within the advisory Guidelines constitutes
plain error. The government agrees.
The district court did not announce the advisory Guide-
line range from which it chose the lifetime term, but it
did indicate in the written judgment that the PSR was
No. 12-2921 13
accepted “without change.” So we assume that the five
years to life range advised in the PSR played a role in
the district court’s decision.
Goodwin did not object below to either the district
court’s receipt of a report containing this alleged error
or to the court’s later imposition of a life term of super-
vised release following this incorrect calculation. Since
we cannot think of any reason why Goodwin would
deliberately remain silent concerning a miscalculation
that led to the imposition of the longest possible term
of supervised release, we consider his objection on
appeal to be forfeited, not waived. See United States v.
Jaimes-Jaimes, 406 F.3d 845, 849 (7th Cir. 2005) (“For-
feiture occurs because of neglect while waiver happens
intentionally.”). Accordingly, we review this aspect of the
district court’s sentencing decision for plain error. See
United States v. Anderson, 604 F.3d 997, 1001 (7th Cir. 2010).
Under the plain-error standard, we will reverse the
district court’s sentencing determination “only when we
find: (1) an error or defect (2) that is clear or obvious
(3) affecting the defendant’s substantial rights (4) and
seriously impugning the fairness, integrity, or public
reputation of judicial proceedings.” Id.According to Goodwin, the PSR contains two closely
related errors; the report cites the allegedly inapplicable
U.S.S.G. § 5D1.2(b)(2) in its determination of the ad-
visory Guidelines range for supervised release, and,
based in part on this citation, the report allegedly miscal-
culates the advisory Guidelines range. This Guideline
provides for a maximum life term of supervised release
14 No. 12-2921
for “a sex offense.” U.S.S.G. § 5D1.2(b)(2). Thus, the
applicability of this provision hinges on whether
Goodwin’s failure to register under 18 U.S.C. § 2250qualifies as a sex offense. As noted, the government,
in conceding error, indicates that it shares Goodwin’s
understanding of this Guideline. We were initially con-
cerned that the government’s concession of error might
have been incorrect, but a closer examination of
this problem reveals that neither the Guideline nor
its commentary provide a basis for concluding that
the advisory Guidelines range for Goodwin’s offense
extends to a life term.
To determine whether failure to register should be
classified as a sex offense, we first look to Application
Note 1 to U.S.S.G. § 5D1.2. This note defines a sex offense
as a crime “perpetrated against a minor” under, inter alia,
chapter 109B of Title 18. The only offense listed in
chapter 109B is failure to register, 18 U.S.C. § 2250,
which is Goodwin’s offense.
The phrasing of this Application Note suggests that
a failure to register under SORNA could be considered
an offense “perpetrated against a minor” under certain
circumstances. Otherwise, the inclusion of chapter 109B
of Title 18 in the Application Note would be sur-
plusage. But how are courts to determine whether a
given failure to register was perpetrated against a mi-
nor? The Guidelines and their commentary offer no
assistance.
Perhaps the Note means to say that if the original
offense that gave rise to the registration requirement
No. 12-2921 15
were perpetrated against a minor, then the subsequent
offense of failure to register should be considered a sex
offense.2 Although such a rule arguably would be
sensible, it cannot be derived from the language of the
Guideline and it would be purely a judicial creation.
The Application Note does not provide a clear state-
ment that the Sentencing Commission had such a
purpose in mind.
It seems to us that the application of the term “perpe-
trated against a minor” to any failure to register
stretches this term past its breaking point. In Goodwin’s
case, there was no specific victim of his failure to
register, and the victim of the sex offense for which he
was convicted was nine years old at the time of the
2
This interpretation is consistent with the practice of two of
our sister circuits, which have applied this Guideline—without
explanation, and in unpublished opinions—to failures to
register where the original offense was perpetrated against a
minor. See United States v. Zeiders, 440 F. App’x 699 (11th
Cir. 2011); United States v. Nelson, 400 F. App’x 781 (4th Cir.
2010). This practice, however, is hardly universal. See United
States v. Herbert, 428 F. App’x 37 (2d Cir. 2011) (finding that a
defendant’s failure to register was not a sex offense under
U.S.S.G. § 5D1.2(b)(2); the defendant’s original crime was
committed against two minors, according to Appellee Br., 2010
WL 4815032 at *3); see also United States v. Maxwell, 483 F. App’x
233, 236 n.1 (6th Cir. 2012) (noting that “[t]here is some
basis” for the defendant’s argument “that his failure to
update his sex offender registration does not constitute a ‘sex
offense’ as defined by [U.S.S.G. § 5D1.2],” but finding
this argument to be waived).
16 No. 12-2921
offense, and, therefore, had reached the age of majority
by 2008 when Goodwin failed to register in Illinois.
Thus, it seems incorrect to claim that Goodwin com-
mitted his failure to register “against a minor.”
Instead of ignoring or placing conditions on the Ap-
plication Note’s reference to chapter 109B of Title 18,
would it be more sensible to read the phrase “per-
petrated against a minor” out of the Note? This inter-
pretation would place all failures to register within
the purview of U.S.S.G. § 5D1.2, eliminating the task
of determining how a failure to register could be per-
petrated against a minor. But ignoring the phrase “per-
petrated against a minor” with respect to chapter 109B
of Title 18 seemingly also would require us to ignore
this phrase with respect to all of the other statutory
provisions that are listed in the Note. These include
offenses for which it is relatively easy to determine
whether a minor was victimized and rational to
advise harsher penalties to offenses perpetrated against
minors. See, e.g., 18 U.S.C. § 1201 (kidnapping). Conse-
quently, reading the phrase “perpetrated against a mi-
nor” out of the Note would greatly expand the applica-
tion of U.S.S.G. § 5D1.2 to these other listed offenses.
We have no indication that the Commission intended
this result, and are unwilling to infer an intent to do
so based solely on the flimsy argument that the phrase
“perpetrated against a minor” is surplusage.
Although we ordinarily grant “controlling weight” to
the Sentencing Commission’s interpretations of its own
Guidelines, as expressed in the Commission’s Applica-
No. 12-2921 17
tion Notes, we do not defer to interpretations that are
“plainly erroneous or inconsistent” with the relevant
Guideline, federal law, or the Constitution. See United
States v. Raupp, 677 F.3d 756, 759 (7th Cir. 2012) (quoting
Stinson v. United States, 508 U.S. 36, 44-45 (1993)). Here,
the illogic of the implication that registration offenses
can be perpetrated against minors indicates that, to the
extent that the Note purports to include failures to
register as sex offenses, this portion of the Note is
plainly erroneous as a definition of “sex offense” for
purposes of U.S.S.G. § 5D1.2(b)(2). Moreover, the Note
is inconsistent with definitions of “sex offense” else-
where in the U.S. Code, see, e.g., 18 U.S.C. § 3559(e)(2)(A)
(defining “Federal sex offense” by referring to a set
of crimes, all of which clearly involve child victims), and
is equally inconsistent with the definition of “child
crimes and sexual offenses” elsewhere in the Guidelines,
see, e.g., Application Note 4(A) to U.S.S.G. § 5K2.0. Thus,
we do not defer to this Note’s unclear definition of “sex
offense.” If the Commission does in fact consider some
failures to register to be sex offenses, it should say so
plainly, and provide courts with guidance as to which
failures to register qualify. Moreover, as a portion of the
Adam Walsh Act, 18 U.S.C. § 3583(k), mandates that
registry violations should be eligible for lifetime terms
of supervised release regardless of whether they involve
a minor victim, the Guidelines should explain the cir-
cumstances under which that outcome is within range.
Since nothing about Goodwin’s failure to register
demonstrates that it is a sex offense—and since neither
the Sentencing Commission nor the district court
18 No. 12-2921
provides a rationale for the contrary position—U.S.S.G.
§ 5D1.2(b)(2) does not apply. The PSR’s citation to
U.S.S.G. § 5D1.2(b)(2) and miscalculation of the ad-
visory Guidelines range as five years to life, based on this
citation, were therefore in error. Instead, the properly
calculated advisory Guidelines “range” for Goodwin’s
offense appears to actually be a point: five years.
To see why, note first that the Guidelines advise a
term of supervised release of between one and three
years for Goodwin’s offense. See U.S.S.G. § 5D1.2(a)(2)
(setting this range for Class C felonies); see also 18 U.S.C.
3559(a)(3) (applying the Class C label to felonies for
which the maximum term of imprisonment is between
ten and twenty-five years); 18 U.S.C. § 2250(a) (mandating
a ten-year maximum term of imprisonment for failure
to register as a sex offender). This advisory Guidelines
range, however, conflicts with the statutory mandate
that individuals convicted of Goodwin’s offense re-
ceive a mandatory sentence of no less than five years
of supervised release. 18 U.S.C. § 3583(k). Where, as
here, the statutory minimum term of supervised release
is greater than the top end of the Guidelines range of
§ 5D1.2(a)(2), the statutory minimum controls. U.S.S.G.
§ 5D1.2(c); cf. United States v. Gibbs, 578 F.3d 694, 695 (7th
Cir. 2009) (“[T]he statutory minimum term of supervised
release defines either the bottom limit of the advisory
Guidelines range or the entire range (if it coincides
with the top of the Guidelines range).”). Thus, the entire
Guidelines “range” becomes the statutory minimum of
five years—not five years to life, as the PSR erroneously
states. Before we move forward, though, we note that
No. 12-2921 19
this conclusion even leaves U.S.S.G. § 5D1.2(c) unfulfilled,
because it indicates that the supervised release term
“shall be not less than” the statutorily required term. It
does not say that it “shall be equal to” that required
minimum term, but that is the required result here.
Having shown that the district court plainly erred in
its adoption of the PSR’s erroneous calculation of the
advisory Guidelines range for Goodwin’s term of super-
vised release, we turn to examining whether this error
affected Goodwin’s substantial rights. See Anderson,
604 F.3d at 1001. District courts should treat the Guide-
lines “as the starting point and the initial benchmark”
in sentencing determinations. Gall v. United States, 552
U.S. 38, 49 (2007). In addition, in reviewing sentences
we apply a rebuttable presumption of reasonableness
to within-Guidelines sentences. See United States v.
Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005); see also Rita
v. United States, 551 U.S. 338, 347 (2007) (holding that
courts of appeals may apply such a presumption post-
Booker). Given the important role that the Guidelines
play both in the imposition and in the review of sen-
tences, we find that the district court’s adoption of an
incorrect Guidelines range affected Goodwin’s sub-
stantial rights.
Finally, the plain error here “seriously affect[ed] the
fairness, integrity, or public reputation of judicial pro-
ceedings.” United States v. Trujillo-Castillon, 692 F.3d
575, 578 (7th Cir. 2012). Here, the district court im-
posed a life term of supervised release after having re-
ceived a report recommending this sentence. Although
20 No. 12-2921
the district court did not specifically cite the report or
the Guidelines in explaining the length of supervised
release that it imposed during Goodwin’s sentencing
hearing, it is no stretch to infer that the PSR’s recom-
mended life term of supervised release impacted the
court’s imposition of a life term. We have found in
similar circumstances that such errors impact the funda-
mental fairness of sentencing hearings. See, e.g., United
States v. Garrett, 528 F.3d 525, 530 (7th Cir. 2008) (“[W]e
have no reason to believe [the district court’s] error in
the application of the Guidelines did not affect its
selection of the particular sentence . . . and the resulting
prejudice to [the defendant] justifies remand for
resentencing.”). Moreover, while Goodwin failed to
notice the error in district court, “so did . . . the Assistant
United States Attorney, the probation officer, and the
district court judge, and . . . it would be unjust to place
the entire burden for these oversights on [him].” Jaimes-
Jaimes, 406 F.3d at 851. Thus, these errors concerning
the application of the advisory Guidelines warrant
resentencing.
As Section II.C., infra, explains, we also are remanding
with instructions that the district court reassess the im-
position of special conditions on Goodwin’s supervised
release. This remand on the special conditions provides
an additional reason for the district court to reconsider
the length of Goodwin’s supervised release. Since the
district court’s determinations regarding the length of
the supervisory period and any conditions imposed on
Goodwin during this period may involve interrelated
decisions, a reassessment of one of these elements
No. 12-2921 21
may provide cause for giving a second look to the
entire supervisory regime.
We also note that in reaching the conclusion that
errors concerning the application of U.S.S.G. § 5D1.2(b)(2)
warrant resentencing, we do not mean to imply that
the district court is not authorized to impose a lifetime
term of supervised release. Obviously, 18 U.S.C. § 3583(k)
clearly authorizes any term of years from five to life.
Rather, we are stating that if on remand the district
court imposes a supervised release term greater than
five years, this term will have to be explained by some-
thing other than the currently available five-year Guide-
lines range.
C. Special Conditions
Finally, Goodwin objects to the district court’s im-
position of four special conditions—labeled Conditions 4,
5, 6, and 7, above—during his period of supervised
release. The government agrees that Conditions 4, 6,
and 7 should be vacated, but argues that the district
court did not plainly err in imposing Condition 5.
A district court may impose special conditions of super-
vised release, provided that these conditions meet three
requirements. First, post-release conditions must be rea-
sonably related to the penological purposes set forth in
18 U.S.C. § 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D).
See 18 U.S.C. § 3583(d). Specifically, special conditions
“must be reasonably related to (1) the defendant’s
offense, history and characteristics; (2) the need for ade-
22 No. 12-2921
quate deterrence; (3) the need to protect the public from
further crimes of the defendant; and (4) the need to
provide the defendant with treatment.” United States v.
Angle, 598 F.3d 352, 360-61 (7th Cir. 2010); see also 18
U.S.C. § 3553(a)(1)-(2). Second, special conditions cannot
involve a greater deprivation of liberty than is rea-
sonably necessary to achieve the goals of deterrence,
incapacitation, and rehabilitation. United States v. Holm,
326 F.3d 872, 876 (7th Cir. 2003); see also 18 U.S.C.
§ 3583(d)(2). Third, the conditions must be “consistent
with any pertinent statements issued by the Sentencing
Commission.” 18 U.S.C. § 3583(d)(3).
In assessing the appropriateness of special conditions,
it also is useful to consider the rehabilitative objectives
that supervised release serves. See United States v.
Johnson, 529 U.S. 53, 59 (2000) (“Supervised release ful-
fills rehabilitative ends, distinct from those served by
incarceration.”). Placing “unduly harsh conditions [on
supervised release] would, instead of facilitating an of-
fender’s transition back into the everyday life of the
community, be a significant barrier to a full reentry into
society.” United States v. Perazza-Mercado, 553 F.3d 65,
71 (1st Cir. 2009) (quotation marks and citation omitted).
1. Standard of Review
Goodwin did not object to the imposition of these
conditions. The parties dispute the effect of this failure
to object on our standard of review, with the govern-
ment arguing that plain-error review for forfeited claims
No. 12-2921 23
ought to apply, see United States v. Tejeda, 476 F.3d 471,
474 (7th Cir. 2007), and Goodwin countering that his
lack of notice that the district court would impose these
conditions absolves him of the responsibility to object in
order to avoid plain-error review on appeal.
The government claims that, in order to preserve
claimed error on appeal under Federal Rule of Criminal
Procedure 51, a party must object before the district court
makes its ruling, or, where the party did not have
an opportunity to object beforehand, only if the party
raised the issue at the time of the ruling. United States
v. Brown, 662 F.3d 457, 461 n.1 (7th Cir. 2011), cert.
granted, judgment vacated sub nom. Vance v. United States,
133 S. Ct. 65 (2012); see also United States v. Bartlett, 567
F.3d 901, 910 (7th Cir. 2009) (stating that Rule 51(b)
“requires a protest immediately after the ruling if the
litigant did not have an opportunity to argue the point
earlier”). According to the government, such an ex post
objection would not be considered an unnecessary ex-
ception to a ruling under Rule 51(a) because in order
for Rule 51(a) to apply, the party must have already
raised its claim before the ruling. See Brown, 662 F.3d at461 n.1.
In response, Goodwin calls our attention to our state-
ment in United States v. Courtland: “If a party does not
have an opportunity to object to a ruling or order, the
absence of an objection does not later prejudice that
party.” 642 F.3d 545, 547 (7th Cir. 2011) (quoting Fed.
R. Crim. P. 51(b)). In this case, neither the PSR nor the
addendum to it mentioned any potential conditions on
24 No. 12-2921
Goodwin’s supervised release. In fact, there is nothing
in the record that indicates that Goodwin could have
expected that the district court would impose special
conditions prior to its doing so. Given this lack of oppor-
tunity, Goodwin argues that a less deferential abuse
of discretion standard ought to apply to our review of
this issue.
We need not resolve whether plain-error review
(as Brown and Bartlett would suggest) or review for
abuse of discretion (as per Courtland) applies in these
circumstances, since we find that the special conditions
must be vacated under either standard.
2. Condition 4
Condition 4 deals mostly with Goodwin’s physical
property, requiring him to install internet monitoring
software on his computers; to submit to searches of his
person, car, computer, and other property; and to
allow his computer equipment to be removed for more
thorough examinations, among other requirements.
We consider the computer-related terms of this condi-
tion first. We fail to see how these broad restrictions
are reasonably related to Goodwin’s offense, history,
and personal characteristics. The record does not
indicate that a computer played any role in either the
instant offense for failure to register or his 1994 convic-
tion for an attempted lewd and lascivious act in the
presence of child. Cf. United States v. Freeman, 316 F.3d
386, 392 (3d Cir. 2003) (vacating a condition barring
all access to the internet as overly broad, where there
No. 12-2921 25
was no indication that the defendant had used the
internet to contact children). Nor is there any indication
in the record that Goodwin has ever used a computer
to commit any crime. Although we stop short of stating
that such restrictions could never be appropriate in
these circumstances, our skepticism leads us to con-
clude that the district court must provide some justifica-
tion for these particular conditions.
Condition 4 also requires that Goodwin submit
to warrantless searches of his person and property by
his probation officer, as well the potential seizure—
temporary, presumably—of his computer equipment
for supplemental inspections. Given the nature of
Goodwin’s convictions, we are once again at a loss to
see how this broad search and seizure authority is con-
nected to Goodwin’s offense, history, and personal char-
acteristics, or how it is reasonably necessary to fur-
thering the deterrence, public protection, and rehabil-
itative goals articulated in 18 U.S.C. § 3583(d)(2). See
United States v. Monteiro, 270 F.3d 465, 473 (7th Cir. 2001)
(vacating a seizure-related special condition, based on
an inability to “discern from this record the reason
why the district court was of the view that such broad
authority to seize was required to ensure that the ends
of rehabilitation and protection of the public were
met.”). Accordingly, we vacate this condition.
3. Condition 5
Condition 5 prohibits Goodwin from having any
contact with minors, except in the presence of an adult
26 No. 12-2921
who is aware of Goodwin’s prior sex offense and who
has been approved by the probation department. We
are skeptical that such a sweeping condition could be
reasonably related to Goodwin’s offense, history and
characteristics, particularly since there is no evidence
in the record of any incidents involving minors in the
almost two decades since Goodwin’s 1994 conviction.
Moreover, given the potentially severe restrictions on
Goodwin’s day-to-day life that this condition imposes,
the district court’s lack of explanation of why it thinks
this condition involves no greater deprivation of liberty
than necessary to achieve the penological goals stated
in 18 U.S.C. § 3553(a) is troubling.
The government responds by noting that district
courts have the discretion to impose special conditions
barring contact with minors where the immediate
offense, as with Goodwin’s failure-to-register offense,
does not involve contact with minors. But district courts’
ability to impose no-contact conditions does not absolve
them of their responsibility to explain why such condi-
tions are warranted in particular cases. Furthermore,
while we agree that such a condition may be appro-
priate in certain circumstances, we caution that these
circumstances are less common than the government
suggests. Tellingly, in over six pages of discussion of
case law concerning no-contact provisions, the govern-
ment cites only one case from our circuit: United States
v. Musso, 643 F.3d 566 (7th Cir. 2011). In Musso, we
upheld the imposition of a no-contact condition where
the defendant’s immediate offense—the violation of
his original terms of supervised release following a con-
No. 12-2921 27
viction for possession of child pornography—was not
a sex crime. Id. at 571. But Musso’s violation of his
original terms of supervised release involved him
having prolonged contact with a minor, so the re-imposi-
tion of this no-contact provision following the revoca-
tion of Musso’s supervised release can be viewed as an
extension of his original sentence for crimes involving
a child victim. Moreover, all of the cases from our sister
circuits that the government cites involve much more
serious offenses than Goodwin’s failure-to-register vio-
lation stemming from a conviction for an attempted
lewd and lascivious act in the presence of child. See,
e.g., United States v. Zobel, 696 F.3d 558 (6th Cir. 2012)
(upholding no-contact provision where defendant had
knowingly coerced and enticed minors to engage in
sexual activity); United States v. Bee, 162 F.3d 1232 (9th
Cir. 1998) (upholding no-contact provision where de-
fendant had sexually abused a six-year-old).
Given that Goodwin’s instant offense does not involve
a child victim and that his offense history, while
troubling, does not rise to the level of those offenders in
the cases that the government cites, it is not clear why
the district court imposed this no-contact condition. Be-
cause the district court has not provided any explana-
tion of how this condition is reasonably related to
Goodwin’s offense and background or to the goals of
punishment, involving no greater deprivation of liberty
than is reasonably necessary to achieve these goals, we
vacate the condition.
28 No. 12-2921
4. Condition 6
Similarly, the record before us contains insufficient
support for the imposition of Condition 6, which pro-
hibits Goodwin from possessing material that, inter
alia, “depicts or alludes to sexual activity.” Goodwin’s
failure to register under SORNA has nothing to do
with material depicting or alluding to sexual activity.
Moreover, there is nothing in the record that sheds light
on a hypothetical connection between Goodwin’s 1994
conviction or other past acts and such material. Thus, it
is unclear how this condition is reasonably related to
any of the considerations set forth in 18 U.S.C. § 3583(d).
Cf. Perazza-Mercado, 553 F.3d at 67 (holding that a
district court committed plain error by imposing, without
explanation, a special condition banning the possession
of pornography, where the record did not show a con-
nection between the defendant’s conviction for unlawful
sexual contact with a minor and pornographic material).
The inclusion of material that “alludes to” sexual
activity within Condition 6’s purview is particularly
problematic. This dictate goes beyond a ban on the pos-
session of pornography. If read literally, the inclusion
of this term could block Goodwin from possessing
much of the Western literary canon—or arguably even
from possessing a slip copy of this opinion. Such a dep-
rivation of liberty certainly would be greater than
is reasonably necessarily to achieve the goals of super-
vised release. This vague term therefore provides an
additional reason for vacation of Condition 6. See
Monteiro, 270 F.3d at 473 (vacating a “vague and
No. 12-2921 29
overbroad” special condition to enable the district court
“to craft more precisely” the condition).
5. Condition 7
Condition 7 places content restrictions on Goodwin’s
use of the internet. The portion of this condition
regarding the use of the internet to send, receive, or
view child pornography seems justifiable, given
Goodwin’s 1994 conviction for an attempted lewd and
lascivious act in the presence of child. (It is also
redundant, since another section of the judgment in
this case directs that Goodwin “shall not commit
another federal, state, or local crime” while on super-
vised release, a standard provision.) Still, the nexus
between Goodwin’s history and this section of
Condition 7 does not absolve the district court of the
responsibility to provide an explanation for all special
conditions imposed.
The sections of Condition 7 that prohibit Goodwin
from receiving or sending any sexually arousing material
that is otherwise legal—e.g., depictions of adults—via
the internet or from visiting “any website, including
chat rooms or bulletin boards containing any sexually
arousing material” give us greater pause. These prohibi-
tions can be considered internet-specific versions of
Condition 6’s prohibition on the possession of material
that “contains nudity or . . . depicts or alludes to sexual
activity or depicts sexually arousing material.” Thus,
this portion of Condition 7 suffers from the same
overbreadth and vagueness concerns as we noted con-
30 No. 12-2921
cerning Condition 6. We vacate Condition 7 for simi-
lar reasons.
Goodwin argues that his deprivation of expressive
material under Conditions 6 & 7 violates his First Amend-
ment rights. Since we vacate these conditions on other
grounds, we need not reach this constitutional question.
See Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 341
(19836) (Brandeis, J., concurring).
6. Other Conditions
Goodwin’s objections to the special conditions that
the district court imposed focus exclusively on Condi-
tions 4-7. We wonder why he has not objected to Condi-
tions 8 and 10 as well. These two conditions require him
to participate (at his own expense) in sex offender treat-
ment and mental health counseling, respectively, “as
deemed necessary by the probation officer.” As with
the other special conditions, the district court imposed
these conditions without explanation.
We note once again that each special condition
imposed must be tailored to Goodwin and his needs,
see Angle, 598 F.3d at 360-61, and involve no greater
deprivation of liberty than is reasonably necessary to
achieve the goals of deterrence, protection of the public,
and rehabilitation, see Holm, 326 F.3d at 876. Given that
Goodwin’s instant offense is for a failure to register,
the penological purpose of these treatment and coun-
seling programs is far from clear.
No. 12-2921 31
Courts of appeals ordinarily abstain from considering
issues sua sponte. See Wood v. Milyard, 132 S. Ct. 1826, 1834
(2012). Nonetheless, “[w]hen in a criminal appeal the
court of appeals notices a plain error, it can reverse even
if the appellant had not drawn the error to the court’s
attention.” United States v. Gutierrez-Ceja, 711 F.3d 780, 784
(7th Cir. 2013). Here, we are unable to discern any con-
nection between Goodwin’s offense and the purposes
that sex offender treatment and mental health coun-
seling typically serve. Thus, Conditions 8 and 10 require
additional consideration on remand, for similar reasons
as explained in our discussion of Conditions 4-7.
III. C ONCLUSION
For the foregoing reasons, we A FFIRM Goodwin’s con-
viction, V ACATE the supervised release portion of his
sentence, and R EMAND to the district court for resen-
tencing consistent with this opinion. The resentencing
shall be limited to a reassessment of the length of
Goodwin’s supervised release and any special condi-
tions imposed during this period.
5-8-13