United States v. Timothy Wolf Child

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 11-30241
Plaintiff-Appellee, D.C. No.
v.  4:11-cr-00012-
TIMOTHY ERIC WOLF CHILD, SEH-1
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted
July 12, 2012—Seattle, Washington
Filed October 23, 2012
Before: Mary M. Schroeder, Stephen Reinhardt, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Reinhardt
12807
UNITED STATES v. WOLF CHILD 12811
COUNSEL
Daniel Donovan (argued), Great Falls, Montana, for the
defendant-appellant.
Michael W. Cotter, United States Attorney; Danna R. Jackson
(argued), Leif M. Johnson, Assistant United States Attorneys,
Helena, Montana, for the appellee.
OPINION
REINHARDT, Circuit Judge:
Timothy Eric Wolf Child, a Native American, appeals a
special condition of supervised release imposed by the district
court after he pleaded guilty to attempted sexual abuse. The
special condition, condition 9, prohibited Wolf Child from
residing with or being in the company of any child under the
age of 18, including his own daughters, and from socializing
with or dating anybody with children under the age of 18,
including his fiancée, in both cases unless he had prior written
approval from his probation officer. The district court
imposed the special condition without first making any spe-
cific findings regarding the necessity of restricting Wolf
Child’s ability to have contact with his children and his fian-
cée. It did so on the basis of a record devoid of evidence sup-
porting the need for such a restriction with respect to his
intimate family members. We hold that the fundamental right
to familial association, implicated by the parts of the special
condition prohibiting Wolf Child from residing with or being
in the company of his own daughters and socializing with his
12812 UNITED STATES v. WOLF CHILD
fiancée, is a “particularly significant liberty interest.” The dis-
trict court was therefore required to follow an enhanced pro-
cedural requirement to make special findings on the record
supported by evidence in the record, that the condition is nec-
essary for deterrence, protection of the public, or rehabilita-
tion, and that it involves no greater deprivation of liberty than
reasonably necessary. Because the district court made no such
findings regarding the imposition of the special condition, and
it conducted no individualized examination of Wolf Child’s
relationship with the affected family members, it committed
procedural error with regard to these specific individuals.
Moreover, because of the absence of any evidence in the
record that would support the limitations on the fundamental
liberty interests at issue, we hold that special condition 9, as
applied to restrict Wolf Child’s ability to reside or socialize
with his own children and with his fiancée is substantively
unreasonable.
In addition, we conclude that special condition 9 is over-
broad both by virtue of prohibiting Wolf Child from being in
the company of any child under the age of 18 under any cir-
cumstances and by similarly prohibiting him from dating or
socializing with anybody who has children under the age of
18, regardless of the circumstances, without prior approval of
his probation officer. On remand, if the district court deems
it appropriate to adopt a special condition limiting Wolf
Child’s contact with children under the age of 18 (other than
his own children) and associating with parents of children
under the age of 18 (other than his fiancée) it must ensure that
any such condition is reasonably necessary to accomplish the
statutory goals of supervised release and that it infringes on
his particularly significant liberty interests no more than rea-
sonably necessary to accomplish those goals.
FACTS AND PROCEDURAL HISTORY
Wolf Child is a member of the Chippewa Cree Tribe. On
the morning of August 20, 2010, while at a house party on the
UNITED STATES v. WOLF CHILD 12813
Rocky Boy Indian Reservation, Wolf Child, then 22 years old,
attempted to have sex with B.M., a 16-year-old girl, who was
intoxicated and unconscious. He admitted to kissing B.M. and
rubbing her breasts and vaginal area, taking off her pants and
underwear, pulling down his pants, and positioning himself in
between her legs to have sex with B.M., and further admitted
that his penis might have touched her vagina. Wolf Child
stopped when another girl walked into the room.
Wolf Child was charged in a two-count indictment with
attempted sexual abuse, in violation of 18 U.S.C. §§ 1153(a)
and 2242(2)(B), and abusive sexual contact, in violation of 18
U.S.C. §§ 1153(a) and 2244(a)(2). He pleaded guilty to the
attempted sexual abuse charge pursuant to a plea agreement
and a sentencing hearing was held on August 25, 2011. Dur-
ing that hearing, the district judge stated generally that all of
the 18 U.S.C. § 3553(a) factors had been taken into account
in determining the sentence for Wolf Child. The district judge
then discussed “some of the more specific aspects of the case”
that had a direct bearing on the sentencing determination.
First, the judge stated that “this is a serious crime by any
assessment,” noting that Wolf Child “took advantage of a
passed-out young female,” which resulted in “significant
harm to the victim.” Second, the judge noted that Wolf Child
had “a long history of contributing to the delinquency of
minors,” as reflected in his tribal record, but mentioned no
instances involving sexual activity aside from the conviction
at issue here. Third, the judge stated that he carefully consid-
ered the arguments advanced on behalf of Wolf Child regard-
ing his responsibility to his daughters and the hardship they
would suffer due to his incarceration, but found that it was
“not an appropriate consideration that has any weight.” The
district judge then concluded that the guidelines calculation
was “not out of line for all factors considered in this case” and
“not excessive, given the . . . totality of the circumstances,”
and sentenced Wolf Child to 86 months in prison and 10 years
of supervised release.
12814 UNITED STATES v. WOLF CHILD
Without additional discussion, the district judge imposed
several special conditions of supervised release, including
special condition 9, which ordered in relevant part that Wolf
Child “shall not be allowed to do the following without prior
written approval of United States Probation: [1] reside in the
home, residence, or be in the company of any child under the
age of 18; [2] go to or loiter near school yards, parks, play-
grounds, arcades, or other places primarily used by children
under the age of 18; or [3] date or socialize with anybody who
has children under the age of 18.” (hereinafter “special condi-
tion 9, parts 1, 2, and 3”). After the sentence had been
announced, defense counsel sought to clarify whether special
condition 9 barred Wolf Child from residing with or being in
the company of his own daughters.1 The district judge replied:
Absolutely . . . . This man is now a convicted sex
offender. And I will not allow him to have contact
with children under the age of 18 without the
approval of probation, as stated in the disposition.
This man cannot be trusted with minor children, in
the view of this court. And he will not be. We will
have probationary supervision of this man. If the
probation officer in charge of his case deems it
appropriate, the probation officer will have the
capacity to make that call. But it will not be allowed
as a matter of course.
Defense counsel expressly objected to this condition as
applied to Wolf Child’s access to his own daughters, and the
1
Wolf Child has several intimate relationships that are affected by spe-
cial condition 9. He shares custody of his eldest daughter, who was seven
years old at the time of his sentencing, with N.N., who began her romantic
relationship with Wolf Child when she was 14 and he was 16 or 17 years
old. Wolf Child and N.N. now maintain a platonic relationship. Wolf
Child also has two younger children, aged two and three at the time of
sentencing, with his fiancée W.F., with whom he has been in a serious
relationship since she was 16 years old and he was 20 or 21.
UNITED STATES v. WOLF CHILD 12815
judge replied “I understand. You may take that issue to the
circuit if you wish to do so, counsel.”
Wolf Child filed a timely Notice of Appeal.
ANALYSIS
I.
“We review for abuse of discretion the conditions of super-
vised release set by the district court and challenged on . . .
appeal” when trial counsel objects to a supervised release
condition. United States v. Napulou, 593 F.3d 1041, 1044 (9th
Cir. 2010). When trial counsel fails to object to the imposition
of a supervised release condition, “we review [the] conditions
for plain error.” United States v. Johnson, 626 F.3d 1085,
1088-89 (9th Cir. 2010). Because “a district court has at its
disposal all of the evidence, its own impressions of a defen-
dant, and wide latitude, . . . we give considerable deference
to [its] determination of the appropriate supervised release
conditions.” United States v. Weber, 451 F.3d 552, 557 (9th
Cir. 2006) (internal quotation marks and citation omitted).
Conditions affecting fundamental rights, however, are “re-
viewed carefully.” United States v. Soltero, 510 F.3d 858, 866
(9th Cir. 2007) (internal quotation marks and citation omit-
ted). In imposing a condition of supervised release, the court
must consider “the nature and circumstances of the offense
and the history and characteristics of the defendant” and “the
need for the sentence imposed . . . to afford adequate deter-
rence to criminal conduct; . . . to protect the public from fur-
ther crimes of the defendant; and . . . to provide the defendant
with needed educational or vocational training, medical care,
or other correctional treatment in the most effective manner.”
18 U.S.C. §§ 3583(d), 3553(a); Napulou, 593 F.3d at 1044.
Under 18 U.S.C. § 3583(d), conditions of supervised release
“must: (1) be reasonably related to the goals of deterrence,
protection of the public, and/or defendant rehabilitation; (2)
involve no greater deprivation of liberty than is reasonably
12816 UNITED STATES v. WOLF CHILD
necessary to achieve those goals; and (3) be consistent with
any pertinent policy statements issued by the Sentencing
Commission.” Napulou, 593 F.3d at 1044. The government
bears the burden of establishing the necessity of any condition
of supervised release. Weber, 451 F.3d at 558.
In reviewing a sentence, including a condition of super-
vised release, we first determine whether the district court
committed procedural error. United States v. Carty, 520 F.3d
984, 993 (9th Cir. 2008) (en banc). “It would be procedural
error . . . to fail adequately to explain the sentence selected,”
and the district court must provide a sufficient explanation to
“permit meaningful appellate review” and communicate “that
a reasoned decision has been made.” Carty, 520 F.3d at 992-
93. “While we have held that the district court need not state
at sentencing the reasons for imposing each condition of
supervised release, that is only true if the reasoning is appar-
ent from the record.” United States v. Collins, 684 F.3d 873,
890 (9th Cir. 2012) (emphasis in original) (internal quotation
marks, alteration and citation omitted). Moreover, there is an
exception for conditions of supervised release that implicate
a “particularly significant liberty interest,” in which case “the
district court must support its decision to impose the condition
on the record with record evidence that the condition of super-
vised release sought to be imposed is necessary to accomplish
one or more of the factors listed in § 3583(d)(1) and involves
no greater deprivation of liberty than is reasonably neces-
sary.” United States v. Stoterau, 524 F.3d 988, 1005 (9th Cir.
2008) (internal quotation marks, brackets and citation omit-
ted) (emphasis added); see also Weber, 451 F.3d at 568(describing these “enhanced procedural requirements”). Addi-
tionally, when a supervised release condition targets a defen-
dant’s right to associate with an intimate family member, the
district court must “undertake an individualized review” on
the record of the relationship between the defendant and the
family member at issue to determine whether the restriction
is necessary to accomplish the goals of deterrence, protection
of the public, or rehabilitation. Napulou, 593 F.3d at 1047.
UNITED STATES v. WOLF CHILD 12817
We then review the substantive reasonableness of the
supervised release conditions, “accounting for the totality of
the circumstances presented to the district court.” Collins, 684
F.3d at 887 (internal quotation marks and citation omitted). A
supervised release condition is substantively unreasonable if
it “is not reasonably related to the goal[s] of deterrence, pro-
tection of the public, or rehabilitation of the offender,” id. at
892, or if it infringes more on the offender’s liberty than is
“reasonably necessary” to accomplish these statutory goals,
18 U.S.C. § 3583(d)(2). “The touchstone of ‘reasonableness’
is whether the record as a whole reflects rational and mean-
ingful consideration” of those factors. United States v. Rudd,
662 F.3d 1257, 1261 (9th Cir. 2011) (internal citation and
quotation marks omitted). Finally, when appropriate, we also
examine whether a challenged condition of supervised release
is impermissibly vague in violation of the requirements of due
process, or overbroad, thereby restricting more of the defen-
dant’s liberty than necessary. See Soltero, 510 F.3d at 865-66.
Applying this framework, in Sections II.A and B we exam-
ine whether the district court complied with the applicable
procedural requirements when it imposed parts 1 and 3 of spe-
cial condition 9 insofar as they apply to prohibit Wolf Child
from being in the company of his own children or socializing
with his fiancée. In Section II.C we respond to the govern-
ment’s argument that the district court was not required to fol-
low the enhanced procedures that apply to supervised release
conditions that infringe on a defendant’s particularly signifi-
cant liberty interests because Wolf Child may seek and obtain
written permission from a probation officer not to follow
these restrictions in certain circumstances to be determined by
the probation officer. In Section II.D we examine whether
these restrictions on Wolf Child associating with his own chil-
dren and fiancée are substantively reasonable. Finally, in part
III we consider whether parts 1 and 3 of special condition 9
are overbroad in prohibiting Wolf Child from having contact
with any minors under the age of 18 (other than his daughters)
or any adults with children under the age of 18 (other than his
12818 UNITED STATES v. WOLF CHILD
fiancée) without his probation officer’s prior written permis-
sion. Because Wolf Child has not challenged any facet of part
2 of special condition 9, which prohibits him from going to
or loitering in places primarily used by children, we do not
consider whether part 2 was properly imposed or whether it
is substantively reasonable or overbroad. Rather, part 2
remains in effect as is.
II.
A.
[1] We first consider part 1 of special condition 9, which
prohibits Wolf Child from residing with or being in the com-
pany of children under the age of 18, insofar as it prohibits
contact with his own daughters. We start by determining
whether the district court committed procedural error in
imposing the special condition. See Carty, 520 F.3d at 993.
Before doing so, however, we must determine what procedure
the district court was required to follow prior to imposing this
particular condition. As explained in Section I, above, the dis-
trict court is ordinarily not required to explain on the record
its reasons for imposing each condition of supervised release.
Stoterau, 524 F.3d at 1005. There is an exception, however,
for conditions that implicate a “particularly significant liberty
interest”; those conditions trigger the “enhanced procedural
requirement” described in Stoterau and Weber. Id.; Weber,
451 F.3d at 561, 568. Part 1 of special condition 9 implicates
such an interest.
[2] We have previously held that “[a] ban on associating
with a ‘life partner’ implicates [a particularly significant lib-
erty] interest.” Napulou, 593 F.3d at 1041. The fundamental
liberty interest in having contact with one’s children is
equally, if not more, significant. “The substantive due process
right to family integrity or to familial association is well
established. A parent has a fundamental liberty interest in
companionship with his or her child.” Rosenbaum v. Washoe
UNITED STATES v. WOLF CHILD 12819
Cnty., 663 F.3d 1071, 1079 (9th Cir. 2011) (internal quotation
marks and citation omitted). It “is perhaps the oldest of the
fundamental liberty interests recognized by [the Supreme
Court].” Troxel v. Granville, 530 U.S. 57, 65 (2000) (plural-
ity). “This interest occupies a unique place in our legal cul-
ture, given the centrality of family life as the focus for
personal meaning and responsibility. ‘Far more precious than
property rights,’ parental rights have been deemed to be
among those ‘essential to the orderly pursuit of happiness by
free men,’ and to be more significant and priceless than ‘liber-
ties which derive merely from shifting economic arrange-
ments.’ ” Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 38
(1981) (Blackmun, J., dissenting) (quoting multiple Supreme
Court cases) (individual citations omitted); see also id. at 27(majority opinion) (acknowledging that “[t]his Court’s deci-
sions have by now made plain beyond the need for multiple
citation that a parent’s desire for and right to the companion-
ship, care, custody and management of his or her children is
an important interest” and that infringement on this right
“work[s] a unique kind of deprivation”) (internal quotation
marks and citation omitted); Wallis v. Spenser, 202 F.3d
1126, 1136 (9th Cir. 2000) (describing parents’ right to famil-
ial association as an “essential liberty interest”).
[3] There can be no doubt that the fundamental right to
familial association is a particularly significant liberty inter-
est, and that part 1 of special condition 9 implicates that interest.2
This does not mean that part 1 is necessarily invalid. “The
2
Although Wolf Child is an unwed father, the government does not
argue that his interest in having contact with his daughters is diminished
or nonexistent as a result of that fact. Nor could it, as the evidence in the
record establishes that Wolf Child has been an active and loving father,
living with his two youngest daughters, and sharing custody of his oldest
daughter. “When an unwed father demonstrates a full commitment to the
responsibilities of parenthood by coming forward to participate in the rear-
ing of his child,” as Wolf Child has with his three daughters, “his interest
in personal contact with his child acquires substantial protection under the
due process clause.” Lehr v. Robertson, 463 U.S. 248, 261 (1983).
12820 UNITED STATES v. WOLF CHILD
existence of a constitutionally protected liberty interest . . .
does not render impermissible any condition that would inter-
fere with the parent-child relationship.” United States v.
Davis, 452 F.3d 991, 995 (8th Cir. 2006). The parents’ funda-
mental right to familial association “is not absolute” and
“must be balanced against the interests of the state, and when
conflicting, against the interests of the children.” Kruse v.
Hawai’i, 68 F.3d 331, 336 (9th Cir. 1995) (internal quotation
marks and citations omitted). Interference with that right,
however, requires “a powerful countervailing interest,” Las-
siter, 452 U.S. at 27 (internal quotation marks and citation
omitted), and strict adherence to procedures is required. Prior
to imposing part 1 of special condition 9 the district court was
required to follow the enhanced procedural requirement
described above: specifically, it was required to “support its
decision to impose the condition on the record with record
evidence that the condition . . . is necessary to accomplish one
or more of the factors listed in § 3583(d)(1) and involves no
greater deprivation of liberty than is reasonably necessary.”
Stoterau, 524 F.3d at 1005 (internal quotation marks, brackets
and citation omitted). It is not enough that a reviewing court
may be able to piece together such evidence from its own
review of the record. Rather, the sentencing court, at the time
it imposes the restrictive condition on the exercise of a partic-
ularly significant liberty interest, must itself point to the evi-
dence in the record on which it relies and explain how on the
basis of that evidence the particular restriction is justified.
Napulou, 593 F.3d at 1047.
[4] The district court here did not comply with the preced-
ing requirements for imposing conditions that infringe on par-
ticularly significant liberty interests. Instead the district court
simply imposed special condition 9 without providing any
explanation until counsel objected to its applicability to Wolf
Child’s right to reside with or be in the company of his own
children. In response to that objection, the”on the record” jus-
tification the district court provided for the restriction was that
UNITED STATES v. WOLF CHILD 12821
Wolf Child “is now a convicted sex offender” and “cannot be
trusted with minor children.”
[5] We need not consider whether a district court’s justifi-
cation of a supervised release condition, provided only after
objection by defense counsel, satisfies the enhanced proce-
dure required by Napulou and its predecessors because here
the district court’s response fails to meet the procedural stan-
dard in any event. The district court pointed to no evidence in
the record to support its determination that Wolf Child could
not be trusted with any minor children, even his own. More-
over, its declaration that Wolf Child is now a “convicted sex
offender” is simply an announcement that he has pled guilty
to the charge and cites to no evidence in the record regarding
the nature of the particular offense or its relationship to the
condition that restricts his ability to reside with or be in the
company of his own daughters. Nor did the district court
attempt to explain why the restriction involved “no greater
deprivation of liberty than is reasonably necessary” to achieve
deterrence, protection of the public, or rehabilitation. See 18
U.S.C. § 3583(d)(2). Therefore, the district court’s “explana-
tion” for part 1 of special condition 9’s restrictions on Wolf
Child’s fundamental right to familial association did not com-
ply with the procedures we have required for imposing such
conditions. In sum, it fails to “support its decision to impose
the condition on the record with record evidence that the con-
dition of supervised release sought to be imposed is necessary
to accomplish one or more of the factors listed in § 3583(d)(1)
and [fails to establish that it] involves no greater deprivation
of liberty than is reasonably necessary.” Stoterau, 524 F.3d
at 1005 (internal quotation marks, brackets and citation omit-
ted) (emphasis added).
The district court’s justification for part 1 of special condi-
tion 9 as it relates to Wolf Child’s daughters was procedurally
infirm for an additional reason. When a supervised release
condition “singles out a person with whom the individual on
supervised release has an intimate relationship, the sentencing
12822 UNITED STATES v. WOLF CHILD
court must undertake an individualized review of that person
and the relationship at issue . . . .” Napulou, 593 F.3d at 1047(emphasis added). The same holds true when the district court
purposefully burdens a defendant’s familial relationship using
a more generalized condition. Here, the district judge was
fully aware of the relevant family relationships and stated that
the impact of Wolf Child’s sentence on his children was “not
an appropriate consideration that has any weight with this
court in any significant way,” When Wolf Child’s counsel
objected to part 1 of special condition 9 as it applied to his
daughters the district court’s response was simply that “I will
not allow him to have contact with children under the age of
18 without the approval of probation.” The district court’s
refusal to exempt a defendant’s intimate family members
from an otherwise standard supervised release condition, as in
Wolf Child’s case, implicates his intimate family members as
surely as would a separate condition. In such circumstances,
“[o]nly an examination of all the relevant facts surrounding
the relationship between [the defendant and his intimate rela-
tion] will provide a record sufficient to permit the district
court, and a reviewing court, to arrive at an adequate answer
as to whether a judicial prohibition against the intimate rela-
tionship at issue is warranted.” Napulou, 593 F.3d at 1047.
Thus, it is not enough for a district court to rely on broad gen-
eralities under such circumstances; instead it must consider
“the history and characteristics of the defendant” and the his-
tory of his relationship with the affected intimate family
members as well as the need for deterrence, protection of the
public, and rehabilitation. 18 U.S.C. § 3583(d)(1). The two
explanations given by the district court in response to coun-
sel’s objection do not constitute the individualized enquiry we
have required.
First, the district court relied on the fact that Wolf Child is
now a convicted sex offender. This runs contrary to our hold-
ing that “a generalized assessment based on the class of sex
offenders generally, rather than on the particular sex offenses
a defendant has committed or related offenses he is likely to
UNITED STATES v. WOLF CHILD 12823
commit . . . , cannot fulfill the mandate that a term of super-
vised release satisfy the ‘reasonably related’ standard.”
Weber, 451 F.3d at 569; accord Davis, 452 F.3d at 995. This
need to avoid generalizing across all sex offenders “is all the
more important in cases such as this, where a particularly
strong liberty interest is at stake.” Weber, 451 F.3d at 566-67.
Not all sex offenders are the same; nor are all who plead to
a particular type of sex offense. Imposing a supervised release
condition that implicates a particularly significant liberty
interest based solely on a conviction of a particular type, with-
out consideration of the facts of the specific case or the goals
of supervised release, constitutes clear procedural error.
Second, the district court’s conclusory statement that Wolf
Child “cannot be trusted with minor children” is procedurally
insufficient to support the application of part 1 of special con-
dition 9 to Wolf Child’s daughters. The statement does not
explain why the fact that Wolf Child might pose a risk to cer-
tain minors demonstrates that he poses a risk to his own chil-
dren. The generalization offered by the district court in
response to counsel’s objection falls short of what a sentenc-
ing court is required to do prior to imposing such an intrusive
condition interfering with a familial relationship.
[6] The district court was required to consider all of the
facts relevant to the relationships at issue, i.e. between Wolf
Child and his daughters, to justify the all-encompassing scope
of part 1 of special condition 9. Napulou, 593 F.3d at 1047.
These facts include, for example, the type of relationship
Wolf Child has had with each of his daughters; any evidence
of abuse or mistreatment of them, or of any other minor chil-
dren in his family, such that it could be concluded that he
would violate a familial relationship; whether, as stated in the
sentencing letters submitted in support of Wolf Child, the
incident with B.M. was an instance of aberrant behavior; and
any psychological evaluation to support or rebut the belief
that Wolf Child cannot be trusted with minor children, includ-
ing his own children. Here, the district court did even less
12824 UNITED STATES v. WOLF CHILD
than the district court in Napulou because it did not even men-
tion Wolf Child’s relationships to his daughters, let alone per-
form a detailed examination of those relationships. This
failure to examine the particular relationships between Wolf
Child and his daughters was clear procedural error.
B.
[7] The same conclusion applies to part 3, the even broader
portion of special condition 9, which prohibits Wolf Child
from dating or socializing with anybody who has children
under the age of 18, including his fiancée, W.F., without prior
written approval of the probation officer. Because Wolf Child
did not raise a specific objection to part 3 at trial, we review
for plain error. Johnson, 626 F.3d at 1088-89. We reverse
under that standard if there is “an (1) error, (2) that was clear
or obvious, (3) that affected substantial rights, and (4) that
seriously affected the fairness, integrity, or public reputation
of the judicial proceedings.” Id. at 1088 (internal quotation
marks and citation omitted).
[8] As we have already explained, a defendant’s romantic
relationship with his life partner, in this case Wolf Child’s
fiancée, is a relationship that implicates a particularly signifi-
cant liberty interest in intimate association. Napulou, 593 F.3d
at 1047. Moreover, prohibiting Wolf Child from socializing
with W.F. also has the practical effect of prohibiting him from
associating with the daughters he and W.F. had together. Yet
the district court never mentioned the effect part 3 of special
condition 9 would have on Wolf Child’s relationship with
W.F. or his daughters.3 The failure to point to any evidence
3
Normally we would construe part 3 not to apply to W.F. because we
adopt narrowing constructions of release conditions when necessary to
ensure that they “involve no greater a deprivation of liberty than is reason-
ably necessary.” United States v. Goddard, 537 F.3d 1087, 1089 (9th Cir.
2008). Here, however, the district court’s intent that special condition 9
impinge on Wolf Child’s right to familial association is sufficiently evi-
dent from its discussion of part 1 of the special condition, pertaining to
Wolf Child’s ability to reside with or be in the company of his daughters
that we are foreclosed from adopting a narrowing construction of part 3
of the condition as well.
UNITED STATES v. WOLF CHILD 12825
in the record to justify this part of special condition 9, or to
conduct an individualized enquiry examining the impact it
could have on Wolf Child’s relationship with W.F. and his
daughters, or indeed to examine the nature of his relationships
with any of those individuals before subjecting him to the spe-
cial condition in question, was plain procedural error for the
same reasons it was procedural error to impose restrictions on
Wolf Child’s ability to reside with or be in the company of his
children.
C.
The government contends that even these most highly
restrictive parts of special condition 9 do not substantially
limit Wolf Child’s liberty interests because his probation offi-
cer may in his discretion authorize exceptions to the prohibi-
tions. For that reason, the government contends, enhanced
procedures do not apply.
It is true that we have recognized that delegation of author-
ity to a probation officer to allow a defendant to engage in
certain activities while on supervised release may help miti-
gate the severity of a condition restricting such activities. See,
e.g., United States v. Blinkinsop, 606 F.3d 1110, 1121 (9th
Cir. 2010) (probation officer’s discretion can alleviate the
harshness of a condition on loitering where children congre-
gate); see also United States v. Quiznon, 643 F.3d 1266, 1274
(9th Cir. 2011). We have also acknowledged that the fact that
a defendant is able to engage in certain types of activities with
permission from a probation officer, as opposed to being pro-
hibited entirely from engaging in those activities, might jus-
tify a finding that a narrowly tailored condition infringes on
no more liberty than necessary. See Quiznon, 643 F.3d at
1274. Nevertheless, the interposition of a probation officer
does not change the threshold analysis of whether the liberty
interest being protected is a particularly significant one or
whether there is justification in the record for infringing upon
the defendant’s particularly significant liberty interest in
12826 UNITED STATES v. WOLF CHILD
familial association. If the record does not justify imposing a
supervised release condition that infringes on a defendant’s
liberty interests, the limiting condition may not be imposed
simply because a probation officer has the authority to miti-
gate the severity of the improper deprivation of liberty.
[9] Here, parts 1 and 3 of special condition 9, insofar as
they prohibit Wolf Child from residing with or being in the
company of his daughters and socializing with or dating his
fiancée, were improperly imposed; the district court did not
comply with the enhanced procedural requirement applicable
to conditions of supervised release that implicate a particu-
larly significant liberty interest, nor, as we explain below,
does the record as a whole support imposition of the infring-
ing conditions. That Wolf Child might nonetheless be able to
see his daughters or his fiancée if he obtains permission from
a probation officer is therefore irrelevant.4
D.
Ordinarily, we might simply remand parts 1 and 3 of spe-
cial condition 9 in their entirety to the district court so that it
might follow the procedures that govern the imposition of
special conditions that restrict the defendant’s exercise of par-
ticularly significant liberty interests in familial association.
See, e.g., Weber, 451 F.3d at 570 (remanding for district court
to make on-the-record findings to support imposition of con-
4
In light of our holding, we need not determine whether the delegation
here violates the principle that a probation officer “may not decide the
nature or extent of the punishment imposed upon a probationer, since
under our constitutional system the right to impose the punishment pro-
vided by law is judicial.” Stephens, 424 F.3d 876, 881 (9th Cir. 2005)
(internal quotation marks, ellipses and citations omitted); see also United
States v. Esparza, 552 F.3d 1088, 1091 (9th Cir. 2009). We note, however,
that at least one other circuit has held that delegating to a probation officer
the decision whether a defendant may have contact with his children is an
impermissible abdication of judicial authority. See, e.g., Voelker, 489 F.3d
at 154.
UNITED STATES v. WOLF CHILD 12827
dition implicating particularly significant liberty interest);
United States v. Cope, 527 F.3d 944, 955 (9th Cir. 2008)
(same). However, when a part of a condition substantially
infringes on fundamental liberties and when the record is suf-
ficient to determine that there is no plausible basis for the
imposition of that part of the condition, the offending part
must be excised and we remand solely to allow the district
court to revise the remaining parts. See Soltero, 510 F.3d at
867 (remanding an overbroad restriction on defendant’s right
to free association with instructions to excise the offending
part of the condition) United States v. Lonjose, 663 F.3d 1292,
1303 (10th Cir. 2011) (reversing condition prohibiting defen-
dant from having contact with his son where there was “abso-
lutely no evidence in the record” that he posed a danger to the
son, and remanding only for district court to devise a more
limited condition that did not infringe on defendant’s funda-
mental right to familial association); Davis, 452 F.3d 991, 996
(8th Cir. 2006) (finding district court erred by not conducting
an individualized analysis of defendant’s threat to his daugh-
ter and striking the impermissible part condition because “no
evidence in the record” supported a conclusion that he might
sexually assault his own daughter).
[10] Here, although we remand parts 1 and 3 of special
condition 9 to allow the district court to remedy their over-
breadth, see infra Section III, it is clear from the record that
the parts of special condition 9 that prohibit Wolf Child from
residing with or being in the company of his children and
socializing with or dating his fiancée are substantively unrea-
sonable and may not be reimposed. Nothing in the record
would support a finding that these restrictions on his funda-
mental liberties involve no greater deprivation of liberty than
is reasonably necessary to accomplish the goals of deterrence,
protection of the public, or rehabilitation.5
5
In Napulou we remanded to the district court to determine whether any
restrictions on Napulou’s association with her life partner were appropri-
12828 UNITED STATES v. WOLF CHILD
Even when we examine the generalized findings of the dis-
trict court during the sentencing hearing and all of the facts
in the record, rather than limiting our review to the court’s
specific justifications for imposing parts 1 and 3 of special
condition 9, we find no support for prohibiting Wolf Child
from residing with or being in the company of his own daugh-
ters or dating or socializing with his fiancée during the ten
years of his supervised release. In imposing Wolf Child’s sen-
tence, the district court stated that the defendant had “a long
history of contributing to the delinquency of minors,” as
reflected in his tribal record. The record reflects that Wolf
Child has one conviction for contributing to the delinquency
of a minor, two pending charges, two dismissed charges, and
one charge with an unknown disposition from when he was
18 years old. The record is devoid of any facts regarding most
of these conviction or charges, although based on a review of
concurrent charges, none appears to have involved a sexual
offense. Indeed, Wolf Child had never been charged with any
sexual offense until the one for which he was sentenced here.
Instead, the use of alcohol or drugs, sometimes in the pres-
ence of minors, is the common theme that connects Wolf
Child’s past history of offenses involving minors.6 It is also
ate. In that case, however, unlike here, the district court had suggested a
plausible reason why the defendant should be prohibited from having con-
tact with her life partner. Specifically, the district judge recalled based on
previous experience, and stated on the record, that Napolou’s life partner
was “a good manipulator” and the life partner’s relationship with a previ-
ous ex-felon girlfriend had “devolved into violence.” See 593 F.3d at
1046. Accordingly, remand was appropriate for the district court to
develop a record as to whether the life partner had “improved her own
behavior” since that time and to examine her role “in shaping Napulou’s
conduct and attitudes.” Id. Here, as we explain below, nothing in the
record, and nothing said at sentencing, provides any reason to think Wolf
Child might pose a threat to his own daughters or his fiancée or her chil-
dren (of whom Wolf Child is the father).
6
The most recent incident reported in the record, a dismissed charge for
endangering the welfare of a child, involved an allegation that Wolf Child,
UNITED STATES v. WOLF CHILD 12829
true, of course, that on one occasion — the occasion that pro-
duced the plea in the instant case — he attempted to engage
in sexual relations with a sixteen year old girl who had passed
out from the overconsumption of alcohol. This record does
not, however, support imposition of prohibitions on Wolf
Child’s residing with or being in the company of his daugh-
ters or socializing with his fiancée. We cannot justify the
imposition of conditions of supervised release that so drasti-
cally infringe on the fundamental right to familial association
on the basis of a record devoid of any suggestion that Wolf
Child poses a sexual risk to his daughters or to his fiancée (or
to her daughters, of whom he is the father).7
The district court also stated at sentencing that “this is a
serious crime by any assessment,” noting that Wolf Child
“took advantage of a passed-out young female” and caused
“significant harm to the victim.” We agree. Wolf Child com-
mitted a serious offense against a young woman who
undoubtedly suffered great harm as a result, and his conduct
merits the severe punishment that the district judge imposed.
The gravity of the instant offense, however, is not a sufficient
reason to deprive Wolf Child of his fundamental right to
reside with and be in the company of his daughters during the
10 years of his supervised release that follows his seven year
then 23 years old, served alcohol to persons under the age of 21 while
hosting a party where small children were present. His only conviction for
contributing to the delinquency of a minor involved a concurrent convic-
tion for public intoxication. Similarly, both of the pending charges for
contributing to the delinquency of a minor were filed concurrently with
charges involving alcohol or drug-related offenses and involve no charges
that would suggest inappropriate sexual behavior.
7
Special conditions 1-4, which prohibit Wolf Child’s consumption of
alcohol and drugs during the supervised release period and subject him to
up to 104 urinalysis and breathalyzer tests annually are designed to
address Wolf Child’s problems in these areas. These conditions should
have been considered, along with the other facts, by the district judge in
considering whether any limitation on Wolf Child’s fundamental liberty in
familial association was necessary.
12830 UNITED STATES v. WOLF CHILD
prison sentence. Although the facts that make a particular
offense serious may justify a lengthy sentence to be followed
by particular supervised release conditions designed to pro-
mote the goals of deterrence, protection of the public, or reha-
bilitation, the mere fact that the offense is serious does not
justify the imposition of supervised release conditions for
punitive or other purposes not contemplated by § 3583(d)(1).
Compare 18 U.S.C. § 3553(a)(2)(A) (listing the seriousness
of the offense as a factor to consider in imposing a sentence),
with 18 U.S.C. § 3583(d)(1) (listing some § 3553(a) factors,
but not the seriousness of the offense, as factors to consider
in imposing conditions of supervised release).
The government next contends that the commission of the
instant offense, coupled with the relationships Wolf Child had
with N.N. and W.F., who were 14 and 16 years old, respec-
tively, at the time they began their relationships with Wolf
Child and with whom he fathered his three daughters, shows
“a lack of self-control around underage females.” The govern-
ment ignores the fact that Wolf Child was close in age to N.N.
and W.F. at the time of those relationships: he was a teenager,
between 16 and 17 years old, when he dated N.N., and
between 20 and 21 years old when he began dating W.F.
More important, there is no indication that these relationships
were anything but consensual. Wolf Child and N.N. were in
a relationship for three years, shared custody of their daugh-
ter, and continue to do so, as well as to maintain a platonic
relationship. Wolf Child and W.F. lived together with their
daughters prior to his arrest in this case, and the two plan to
marry. In fact, many of the sentencing letters from friends and
family refer to W.F. as his wife. That N.N. and W.F. were
underage at the time they began their long-term relationships
with Wolf Child does not demonstrate that he has a “lack of
self-control around underage females.”8
8
As to Wolf Child’s relationship with W.F., we note that 16 is the age
of consent under Montana law, see MONT. CODE. ANN. § 45-5-
UNITED STATES v. WOLF CHILD 12831
[11] Finally, nothing in the commission of the instant
offense, an attempted sexual assault on a stranger, suggests
that Wolf Child would violate a familial relationship or pres-
ent a danger to his own daughters. To the contrary, the evi-
dence in the record supports a finding that he is a good, caring
and loving father. Even if the Government were correct that
Wolf Child’s prior romantic relationships demonstrate his
sexual preference for or lack of control around young women,
this would not demonstrate that he has shown a sexual pro-
clivity towards his own daughters any more than an average
heterosexual man’s sexual preference for adult women sug-
gests that he will develop a sexual preference for his own
daughters once they become adults. Whatever the record
shows as to Wolf Child’s willingness to take advantage of
other individuals, the record does not support a finding that
Wolf Child presents a danger to his own daughters or will do
so seven years from now.
[12] Nor does the record provide any substantive support
for part 3 of special condition 9’s restriction on Wolf Child’s
particularly significant liberty interest in associating with his
fiancée, W.F. For the reasons already discussed, the record
does not support a finding that Wolf Child would be a threat
to the children they have together if he were to date or social-
501(1)(a)(ii)(D), as well as under the Model Penal Code and the law of the
majority of states. See Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1153
(9th Cir. 2008) (en banc) (surveying state laws), overruled on other
grounds by United States v. Aguila-Montes de Oca, 655 F.3d 915, 928 (9th
Cir. 2011) (en banc); see also 18 U.S.C. § 2243 (defining sexual abuse of
a minor as sexual acts with one who “has not attained the age of 16 years”
and “is at least four years younger than” the defendant). As to his relation-
ship with N.N., when Wolf Child was 16 or 17 years old, sexual relations
between two minors hardly demonstrates that the elder of the two will
have a lifelong proclivity for minor girls. Indeed, we have recognized that
the model penal code, as well as federal law and the law of many states,
criminalizes sexual contact with a minor under the age of 16 only if her
partner is four or more years older than the minor. See Estrada-Espinoza,
546 F.3d at 1153; 18 U.S.C. § 2243.
12832 UNITED STATES v. WOLF CHILD
ize with her. Nor does the record provide any reason to
believe that Wolf Child would be a threat to W.F. herself. To
the contrary, the PSR determined that the couple have a
“healthy relationship and have plans of marriage,” and in a
letter to the district court W.F. stated that Wolf Child is “al-
ways at home with me and my girls” and that “[w]e all love
him and cant [sic] wait for him to get out.” In short, nothing
in the record suggests that the relationship between Wolf
Child and W.F. is anything other than a loving partnership
and certainly nothing suggests that their association places
their children in jeopardy from their devoted father.
[13] We therefore hold that parts 1 and 3 of special condi-
tion 9, to the extent that they prohibit Wolf Child from resid-
ing with or being in the company of his own daughters and
from dating or socializing with his fiancée, are substantively
unreasonable. The record fails to support a conclusion that
these elements of special condition 9 are necessary to accom-
plish the goals of deterrence, protection of the public, or reha-
bilitation or that they involve “no greater deprivation of [Wolf
Child’s] liberty than is reasonably necessary” to accomplish
those goals, 18 U.S.C. § 3583(d). Thus, the district court erred
in applying parts 1 and 3 of special condition 9 to prohibit
Wolf Child’s association with his intimate family members.
For this reason, on remand the district court may not reimpose
any prohibitions on Wolf Child residing with or being in the
company of his own daughters or socializing with or dating
his fiancée during his ten-year term of supervised release.
We do not by this holding imply a per se rule that a super-
vised release condition may not infringe on a defendant’s fun-
damental right to familial association. If the record before the
district court demonstrates the need for such infringement —
for example if a defendant has a proclivity for sexual viola-
tions of familial relationships — such a condition may be
appropriate. See, e.g., Voelker, 489 F.3d at 154 (noting that
restriction on defendant’s access to his children might be jus-
tified on remand, after district court followed appropriate pro-
UNITED STATES v. WOLF CHILD 12833
cedures, where “the record contains evidence that supports a
conclusion that [the defendant] may be capable of exploiting
his own children” because he had exposed his daughter’s but-
tocks online and made comments suggesting a willingness to
offer her for sex with a stranger).
III.
[14] Aside from the procedural and substantive unreason-
ableness of parts 1 and 3 of special condition 9 as they apply
to Wolf Child’s children and his fiancée, these parts of the
special condition are overbroad. They impose significant
restrictions on Wolf Child’s right to free association by pro-
hibiting him from “dat[ing] or socializ[ing] with anybody who
has children under the age of 18” and from being “in the com-
pany of any child under the age of 18” without prior written
permission from his probation officer. (emphasis added).
Such restrictions on a defendant’s right to free association are
valid only if they “(1) [are] reasonably related to the goals of
deterrence, protection of the public, and/or defendant rehabili-
tation; (2) involve[ ] no greater deprivation of liberty than is
reasonably necessary to achieve these goals; and (3) [are]
consistent with any pertinent policy statements issued by the
Sentencing Commission.” Soltero, 510 F.3d at 866. (internal
quotation marks and citation omitted).
[15] We have invalidated broad conditions that restrict
associational rights on several occasions. In Soltero, for
example, we invalidated the part of a condition that prohibited
association with members of “disruptive groups,” holding that
“disruptive groups” was a broad category that included politi-
cal activists, union members on strike, and sports fans, and
that a restriction on associating with such individuals was not
reasonably related to the goals of deterrence, protection of the
public or rehabilitation. 510 F.3d at 867. In Napulou, we
invalidated a condition that prohibited the defendant from
associating with people who had past misdemeanor convic-
tions, holding that a misdemeanor encompassed “a wide range
12834 UNITED STATES v. WOLF CHILD
of minor offenses” and persons with past misdemeanor con-
victions “might currently be law-abiding,” and therefore the
restriction “is not reasonably related to the risk that [the
defendant] will reoffend.” 593 F.3d at 1045-46. Finally, in
Johnson, we invalidated a part of a condition that prohibited
association with persons who associated with gang members,
holding that because “it encompasses not only those who are
involved in the gang’s criminal activities, but also those who
may have only a social connection to an individual gang
member,” the condition was not related to the goals of super-
vised release. 626 F.3d at 1091. The conditions here are simi-
larly overbroad and thus not sufficiently limited to achieving
the goals of deterrence, protection of the public or rehabilita-
tion.
Part 3 of special condition 9 orders that Wolf Child shall
not “date or socialize with anybody who has children under
the age of 18” without prior written approval from his proba-
tion officer.9 The category of people covered by this condition
9
At first glance the terms “date” and “socialize” in part 3 of special con-
dition 9 might appear impermissibly vague. “A defendant has a . . . due
process right to conditions of supervised release that are sufficiently clear
to inform him of what conduct will result in his being returned to prison.”
United States v. Vega, 545 F.3d 743, 749 (9th Cir. 2008) (internal quota-
tion marks and citation omitted). As we have done with conditions of
supervised release ordering that a defendant not “associate” with a particu-
lar group, however, if called upon to do so we would limit the ordinary
definitions of “date” and “socialize” in order “to avoid [their] potentially
vague outer boundaries.” United States v. King, 608 F.3d 1122, 1128 (9th
Cir. 2010). First, consistent with the “well-established jurisprudence under
which we presume prohibited criminal acts require an element of mens
rea,” Vega, 545 F.3d at 750, an order that Wolf Child not “date” or “so-
cialize” with anyone who has children under the age of 18 should be inter-
preted to prohibit only knowing interactions with individuals that Wolf
Child knows fit this category. Second, we would interpret “date” and “so-
cialize” to mean more than incidental contacts. Soltero, 510 F.3d at 866.
Because Wolf Child cannot be penalized for incidental contacts or for dat-
ing or socializing with persons he does not know have children under the
age of 18, part 3 of special condition 9 is not impermissibly vague. See
id. We therefore limit our analysis in this section to the question of over-
breadth.
UNITED STATES v. WOLF CHILD 12835
with whom Wolf Child is prohibited from establishing social
relationships is enormous. Probably more than half the people
in the United States would be on the “do not associate” list.
See U.S. Census Bureau, Statistical Abstract of the United
States (2012)10 (45% of family households have children
under the age of 18). The prohibited group includes people
close to Wolf Child, such as family members, friends, and
neighbors who might have children. It would also include a
boss or coworker, a sponsor in a support group, or a spiritual
leader. The number of people with whom Wolf Child might
socialize, knowing them to have children under the age of 18,
is indeed vast. For the 10 years of his supervised release,
Wolf Child would be required to obtain prior written approval
from his probation officer before, for instance, having dinner
with N.N. on a special occasion, or meeting a close family
member or friend for coffee, or going to an AA meeting or a
tribal function with others seeking to improve their own lives
or their tribe’s social conditions generally; he might even find
himself prohibited from joining his coworkers in the lunch-
room or at a social activity sponsored by his employer. It is
hard to imagine how Wolf Child would be able to develop
friendships, maintain meaningful relationships with others,
remain employed, or in any way lead a normal life during the
10 years of his supervised release were he to abide by part 3.
The breadth of that part is also troubling given that it was
imposed without any evidence that Wolf Child has ever used
a relationship with an adult to gain access to the adult’s child.
We are also concerned, albeit slightly less so, by the
breadth of part 1 of special condition 9, in that it prohibits
Wolf Child from being “in the company of any child under
the age of 18” without prior written approval of a probation
officer. This portion of special condition 9 effectively prohib-
its Wolf Child from acting as a responsible father to his own
daughters. It requires him to obtain written permission before
10
Available at http://www.census.gov/compendia/statab/2012/tables/
12s0064.pdf (last viewed Aug. 22, 2012).
12836 UNITED STATES v. WOLF CHILD
taking his daughter to a pediatrician; or meeting one of his
daughter’s boyfriends before allowing her to go on a date with
him; or taking his children to places of worship or other tribal
functions, or to family gatherings, or other social affairs. It
prevents him from being in the company of any male child
under the age of 18 (without prior approval from his probation
officer), including his nephews or cousins, although there is
no evidence whatsoever that Wolf Child has any sexual inter-
est in young boys or indeed males of any age. The district
court seems not to have considered the possibility that less
restrictive limitations with more relevant and narrowly limited
conditions might have alleviated some of its concerns. As we
held in Napulou, Soltero, and Johnson, we cannot compre-
hend how such broad prohibitions, encompassing so many
people and circumstances without any narrowing provisions,
are reasonably limited to the goals of deterrence, protection of
the public, or rehabilitation. These broad conditions entail a
greater deprivation of liberty than is necessary to achieve
those goals.
Our holding that parts 1 and 3 of special condition 9 are
overbroad does not unduly bind the district court’s hands; the
district court should still be able to devise reasonable condi-
tions that address its concerns that Wolf Child not be in the
company of unsupervised young women in circumstances that
might lead to or make it possible for him to engage in
improper sexual conduct with them. Thus, on remand, if the
district court concludes that, notwithstanding the provisions of
part 2 of special condition 9 and special conditions 1-4, addi-
tional reasonable restrictions similar to those contained in
parts 1 and 3 are warranted, it must carefully examine what
more narrowly circumscribed conditions would be reasonably
related the statutory purposes of deterrence, protecting the
public, and rehabilitation while restricting Wolf Child’s lib-
erty only so far as is reasonably necessary. See Soltero, 510
F.3d at 866; 18 U.S.C. § 3583(d).
[16] We do not mean to suggest that upon remand the dis-
trict judge should impose revised or amended versions of
UNITED STATES v. WOLF CHILD 12837
parts 1 and 3 of special condition 9 or that any such new con-
ditions would be necessary in order to meet the objectives of
deterrence, protection of the public, and rehabilitation. Rather,
we remand parts 1 and 3 of special condition 9 so that the dis-
trict judge may consider in his discretion whether he is per-
suaded that similar conditions are still required given that part
2 of that special condition and special conditions 1-4 remain
in effect, and if so to devise provisions that do not infringe on
Wolf Child’s particularly significant liberty interests any
more than reasonably necessary to meet these statutory goals.
We reiterate that the district court should consider the breadth
of any such limitations and weigh their effect upon Wolf
Child’s life during his 10 years of supervised release follow-
ing his seven year sentence of imprisonment.
IV.
[17] Finally, Wolf Child requests that we reassign this case
to a different district judge on remand. We remand to a differ-
ent judge only in unusual circumstances or when required to
preserve the interests of justice. United States v. Quach, 302
F.3d 1096 (9th Cir. 2002). When making this determination
we consider:
(1) whether the original judge would reasonably be
expected upon remand to have substantial difficulty
in putting out of his or her mind previously
expressed views or findings determined to be errone-
ous or based on evidence that must be rejected, (2)
whether reassignment is advisable to preserve the
appearance of justice, and (3) whether reassignment
would entail waste and duplication out of proportion
to any gain in preserving appearance of fairness.
Id. (internal citation omitted).
[18] Here, in light of the fact that we have made it clear
that parts 1 and 3 of special condition 9 do not apply to Wolf
12838 UNITED STATES v. WOLF CHILD
Child’s relationship with his own children and fiancée and
that we remand only to cure the remaining overbreadth prob-
lems with those parts of the special condition if the district
judge concludes that following Wolf Child’s seven year term
of imprisonment a narrower version of the vacated parts is
still necessary in addition to the restrictions already contained
in part 2 of special condition 9 and special conditions 1-4, we
do not believe that the test for reassignment has been met.
Although the district judge erred in making remarks express-
ing the view that Wolf Child categorically presented a danger
to all children, including his own daughters, we believe our
opinion gives sufficient guidance that, should he determine
that it is necessary to impose new conditions relating to Wolf
Child’s being in the company of other minors, he will impose
only suitably narrow conditions that will comply with the
applicable legal requirements set forth above.
CONCLUSION
We hold that because the fundamental right to familial
association is a particularly significant liberty interest, the dis-
trict court was required to follow enhanced procedural
requirements before imposing parts 1 and 3 of special condi-
tion 9. Because the district court did not undertake an individ-
ualized review of Wolf Child’s relationship with his daughters
and fiancée and did not make explicit findings, supported by
evidence in the record, that these conditions were necessary
for deterrence, protection of the public and rehabilitation, and
involved no greater deprivation of Wolf Child’s liberty than
necessary, it committed procedural error. Moreover, because
the record contains no evidence supporting any such limita-
tions on Wold Child’s fundamental liberty interest in residing
with and socializing with his intimate family members, we
hold that the imposition of parts 1 and 3 of special condition
9, as applied to Wolf Child’s association with his daughters
and fiancée, was substantively unreasonable and may not be
re-imposed upon remand. Finally, in light of their general
overbreadth, we also vacate parts 1 and 3 of special condition
UNITED STATES v. WOLF CHILD 12839
9 and remand to the district court to consider whether it still
concludes that it is necessary to impose similar but more nar-
rowly drawn restrictions. Should the district judge decide to
impose such narrowly drawn restrictions they must be reason-
ably related to the statutory goals of supervised release and
involve no greater deprivation of Wolf Child’s liberty than
reasonably necessary to accomplish those goals given the
facts, circumstances, and legal requirements set forth in this
opinion.
VACATED AND REMANDED.