### PUBLISH UNITED STATES COURT OF APPEALS Filed 8/9/96 TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. THEODORE J. EDGIN, also known as Theodore John Edgin, also known as Theodore Edgin, Defendant-Appellant, No. 95-6409

Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. CR-95-95-A)

Submitted on the Briefs: William P. Earley, Assistant Federal Public Defende r, Oklahoma City, Oklahoma, for Defendant-Appellant. Patrick M. Ryan, United States Attorney, and Ted A. Richardson, Assistant United States Attorney, Oklahoma City, Oklahoma, fo r Plaintiff-Appellee.

Before SEYMOUR , Chief Judge, KELLY and LUCERO , Circuit Judges.

SEYMOUR , Chief Judge.
Theodore John Edgin pled guilty to using a telephon e to communicate a1 After examining the briefs and appellate record, this panel has

determined unanimously to honor the parties’ reques t for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. Therefore the case is ordered submitted wi thout oral argument. -2- threat in violation of 18 U.S.C. § 875(c), and was sentenced to a term of thirtyseven months imprisonment to be followed by thirty- six months of supervised release under special conditions. He appeals. We affirm in part, but we remand one of the special conditions of supervised release for further consideration by the district court. 1

I. Mr. Edgin met Mischelle Heiser in 1982, and over th e following thirteen years they had a tumultuous relationship. Mr. Edgi n was often incarcerated, and when he was not he lived in Oklahoma while Ms. Heis er lived in North Dakota. Nevertheless, on December 8, 1988, Ms. Heiser gave birth to Jerrad Heiser, Mr. Edgin’s son. Soon thereafter, Mr. Edgin was again incarcerated. When he was released in August 1989, he visited Ms. Heiser and Jerrad in North Dakota. Over the next four years, he visited them periodically. In February 1995, Ms. Heiser chose to end their rel ationship. Mr. Edgin was unwilling to accept this change, and escalated his contacts with Ms. Heiser. He repeatedly called her, mailed letters, and sent flowers. Jerrad did not know that Mr. Edgin was his father u ntil Mr. Edgin told him2Apparently Mr. Edgin has not legally established himself as

Jerrad’s father, but Ms. Heiser told probation offi cers that Mr. Edgin is Jerrad’s father. The government does not suggest o therwise. -3- in a March 1995 telephone conversation. Ms. Heiserwas upset by this, and sought to keep Mr. Edgin away. In response, Mr. Ed gin told her he would establish his rights to visitation in court and see k to have his name added to Jerrad’s birth certificate. 2 Around this time, Ms. Heiser started a relationship with a co-worker, Mr. Highman. In the spring of 1995, Mr. Edgin called a nd wrote Mr. Highman to ask him to respect Mr. Edgin’s relationships with Ms. H eiser and Jerrad. At some point, Mr. Highman responded by thanking Mr. Edgin for leaving a bathrobe at Ms. Heiser’s residence, as it came in handy when he got out of bed. Mr. Highman then told Jerrad that Mr. Edgin did not want to be his father anymore and would not visit him again. On the night of May 4, upset by Mr. Highman and dru nk, Mr. Edgin called Mr. Highman’s residence in North Dakota from his ow n home in Shawnee, Oklahoma. Although Mr. Highman hung up on Mr. Edgi n more than once, Mr. Edgin called back. Eventually, Mr. Edgin left a me ssage on Mr. Highman’s answering machine in which he threatened to hurt Mr . Highman in clear, forceful

terms: I mean I’m gonna physically hurt you with my bare h ands as

badly as I possibly can. OK? You’re fucking aroun d with the-4- most dangerous thing you can; a man’s family. You’ re half my size. You sit on your ass all day in an air condit ioned office. I do a man’s work 11 hours a day. I went to the peni tentiary for beating the shit out of cops. You’re not going to be able to wipe your own ass when I get done with you. . . . If yo u go anywhere near Shelly or Jerrad, ever again in your life, you ’re, you, you know, God himself won’t be able to get me off you. I’m gonna bust some jaws. I’m gonna bust some fingers. I’m going to bust some arms. . . . God himself cannot keep me off yo u; and I am gonna physically hurt your sawed-off Yankee ass as bad as I possible can. PSR at ¶ 10. Some eleven days later, Mr. Edgin aga in called Mr. Highman and discussed these threats. Mr. Edgin was indicted for one count of making a th reat via an interstate telephone communication. He was arrested, and rele ased on bond. Although a condition of his release was that he not contact Ms . Heiser, Mr. Highman or Jerrad, Mr. Edgin nevertheless wrote many letters t o Ms. Heiser in which he repeatedly professed his love for her and his desir e to work out their differences. Mr. Edgin entered a guilty plea. The court sentenc ed him to a term of imprisonment of thirty-seven months, followed by th ree years of supervised release. As special conditions of release, the cou rt ordered that Mr. Edgin not communicate with or travel to the state of residenc e of Ms. Heiser, Jerrad, or Mr. Highman.-5- II. Mr. Edgin attacks his sentence on three grounds. F irst, he maintains the court erred in denying him a reduction under the Se ntencing Guidelines for an offense involving “a single instance evidencing little or no deliberation.” U.S.S.G. § 2A6.1(b)(2). Second, he contends the co urt erred in declining to reduce his sentence for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. Third, he maintains the court erred in imposing a s pecial condition of release which prevents him from contact with his son. We review the court’s evidentiary determinations ata sentencing hearing for clear error. United States v. Cruz , 58 F.3d 550, 553 (10th Cir. 1995). We review the guidelines’ application de novo. Id. “Conditions of supervised release, as ordered by the district court, are revi ewed for abuse of discretion.” United States v. Pugliese , 960 F.2d 913, 915 (10th Cir. 1992).

A. We first consider Mr. Edgin’s contention that the c ourt erred in declining to reduce his sentence under U.S.S.G. § 2A6.1(b)(2), w hich provides for a four-point reduction in the base offense level “if the offense involved a single instance evidencing little or no deliberation.” Although Mr . Edgin repeatedly called and wrote to Mr. Highman, he maintains he only threaten ed Mr. Highman during the May 4 telephone call.3 Mr. Edgin’s reliance on United States v. Pacione , 950 F.2d 1348

(7th Cir. 1991), cert. denied , 505 U.S. 1229 (1992) and United States v. -6- At the sentencing hearing, both the parole officer and Mr. Edgin testified about the May 15 telephone call to Mr. Highman. Th e parole officer testified that “Miss Heiser contacted the FBI for a second time on May 16th and told the Special Agent Louks that she had received four phon e calls the night before from Mr. Edgin and that he had repeated the threats thathe had made to . . . Mr. Highman to her.” Id. at 25. The parole officer understood Mr. Edgin ha d admitted to the FBI that he had made a second threatening phone call. Mr. Edgin said they “talked about the time that I’d left that message on his machine threatening to bust him up some.” Rec., vol. II at 17. Questioned by his counsel as to whether he had made another threat in this se cond conversation, Mr. Edgin said, “I don’t believe I did, no.” Id. at 20. Questioned by the court, Mr. Edgin indicated that “I would feel bad if I did it, I did n’t want to do it. I knew it wasn’t the right thing to do but I’d tried everything else in the world, I tried writing him respectful letters, talking to him decently, and he just wants to keep going.” Id. at 18. The court prodded Mr. Edgin to explain his act ions. Eventually, he said he “was trying to find a way to scare [Mr. Highman] of f and keep him from telling [Jerrad] that kind of stuff again, it served no purpose other than to hurt my son’s feelings.” Id

. at 19. In light of this evidence, the district co urt did not clearly err in finding that Mr. Edgin’s threats occurred on mor e than a single instance. 3Sanders , 41 F.3d 480 (9th Cir. 1994), cert. denied , 115 S. Ct. 2010 (1995),

is misplaced because both cases involved threats wh ich occurred over the period of a few hours or less. -7- B. Mr. Edgin next contends the district court erred in declining to reduce his sentence for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. After Mr. Edgin pled guilty, he submitted a statement which c oncluded: “I accept responsibility for my actions. I know threatening someone over the telephone is wrong and in violation of the law.” PSR at ¶ 14. Although a guilty plea “will constitute significantevidence of acceptance of responsibility,” the application notes indicate that “this evidence may be outweighed by conduct . . . that is inconsistent wi th such acceptance of responsibility.” U.S.S.G. § 3E1.1 (n.3). Indeed, the court found Mr. Edgin’s repeated attempts to contact Ms. Heiser demonstrate d that he “stubbornly refuses to accept responsibility for, what after all, is a course of conduct.” Rec., vol. II at 36. On appeal, Mr. Edgin counters that his contact s with Ms. Heiser are not relevant here because he never threatened her. How ever, the sentencing judge has a unique capacity to assess the defendant’s demeano r as regards his acceptance of responsibility. See U.S.S.G. § 3E1.1 (n.5). “For this reason, the det ermination of a sentencing judge is entitled to great deference o n review.” Id. In light of Mr.-8-

Edgin’s determined efforts to contact Ms. Heiser an d the other evidence presented at the sentencing hearing, the district court did n ot clearly err in finding that Mr. Edgin had not accepted responsibility.

C. Finally, Mr. Edgin challenges the district court’s imposition of a special condition of supervised release preventing him from contacting his son. At the close of the sentencing hearing, the court ruled “f irst, during supervised release Mr. Edgin may not have any communication in any for m whatsoever, letter, telephone call, personally-delivered note, personal visit, visit through intermediary or any other form whatsoever, with Mis s Heiser, with Jerrad Heiser, or with Mr. Highman.” Rec., vol. II at 47. Second , the court barred Mr. Edgin from traveling to the state in which either Ms. Hei ser or Jerrad resides. Id. Mr. Edgin contends the court did not have the statutory authority to impose these conditions with respect to Jarrad. In most cases, a court may impose a term of supervi sed release after a term of imprisonment. 18 U.S.C. § 3583(a). A court enj oys broad discretion in setting a condition of supervised release, see United States v. Pendergast, 979 F.2d 1289, 1292 (8th Cir. 1992); United States v. Showalter , 933 F.2d 573, 574 (7th Cir. 1991), but such a term must meet three requirements :4The sentencing guidelines echo the statute, see U.S.S.G. § 5D1.3(b), and

add: “Recommended conditions of supervised release are set forth in § 5B1.4,” id. -9- The court may order, as a further condition of supe rvised release, to the extent that such condition-- (1) is reasonably related to the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D); (2) involves no greater deprivation of liberty than is reasonably necessary for the purposes set forth in section 355 3(a)(2)(B), (a)(2)(C), and (a)(2)(D); and (3) is consistent with any pertinent policy stateme nts issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a); any condition . . . it considers to be appropriate. 18 U.S.C. 3583(d). Under this statutory scheme, a condition of supervi sed release must be reasonably related to “the nature and circumstances of the offense and the history and characteristics of the defendant.” 18 U.S.C. § 3553(a)(1). Moreover, the condition must involve no greater deprivation of li berty than is reasonably necessary given the needs “to afford adequate deter rence to criminal conduct,” id

. § 3553(a)(2)(B), “to protect the public from furthe r crimes of the defendant,” id. § 3553(a)(2)(C), and “to provide the defendant with needed educational or vocational training, medical care, or other correct ional treatment in the most effective manner,” id. § 3553(a)(2)(D). 4-10-

Mr. Edgin raises the argument regarding his son forthe first time on appeal. However, the Federal Rules of Criminal Pro cedure require that “[a]t the sentencing hearing, a court must afford counsel forthe defendant and for the Government an opportunity to comment on the probati on officer’s determinations and on other matters relating to the appropriate se ntence . . . .” Fed. R. Crim. P. 32(c)(1). The court imposed the special condition after it had resolved all the objections to the presentence report and had permitted Mr. Edgin to make a final statement. Mr. Edgin was afforded no notice of or opportunity to comment on the special condition. Under these circumstances, Mr. Edgin’s attack on the special condition was not waived by his failure to assert i t below. See United States v. Esqueda-Moreno , 56 F.3d 578, 580 (5th Cir.) (“[A] Rule 32 violati on may be addressed for the first time on appeal . . . .”), c ert. denied , 116 S. Ct. 348 (1995). See also Burns v. United States , 501 U.S. 129, 134 (1991) (“Federal Rule of Criminal Procedure 32 provides for focused, adversa rial development of the factual and legal issues relevant to determining th e appropriate Guidelines sentence.”). Indeed, the district court imposed the special cond ition at issue here at the close of the sentencing hearing without making fact ual findings or providing any reasons in support. As we have previously stated, “the district court must make a generalized statement of its reasoning for imposing a particular sentence so that appellate review does not flounder in the ‘zone of speculation.’” United States v.5 While section 3583(d)(1) requires only that a condi tion of supervised

release be “reasonably related” to certain ends, se ction 3583(d)(2) requires more: that the deprivation of liberty be “reasonably nece ssary” to deter Mr. Edgin from further criminal conduct, protect the public, or pr ovide Mr. Edgin with educational training or medical care. Compare 18 U.S.C. § 3583(d)(2) with Porth v. Templar , 453 F.2d 330, 333 (10th Cir. 1971) (“The only lim itation [on terms of probation] is that the conditions have a reasonable relationship to the treatment of the accused and the protection of the public.”). -11- Slater , 971 F.2d 626, 633 (10th Cir. 1992)(quoting United States v. Underwood, 938 F.2d 1086, 1091-92 (10th Cir. 1991)). See also 18 U.S.C. § 3553(c) (“The court, at the time of sentencing, shall state in op en court the reasons for its imposition of the particular sentence . . . .”); United States v. Zackson , 6 F.3d 911, 923 (2d Cir. 1993) (“Zackson’s claim of abuse of discretion cannot be properly reviewed without some statement in the rec ord which reveals the justification for the imposition of the particular sentence.”)

. Accordingly, we remand the case for the district co urt to state its reasoning for imposing the special conditions of supervised r elease on Mr. Edgin. In so doing, we reiterate that section 3583(d)(2) require s conditions restricting a defendant’s liberty to be especially fine-tuned to achieve the goals set forth in section 3553(a)(2)(B), (C) and (D). 5 The special condition regarding Mr. Edgin’s son implicates Mr. Edgin’s liberty. As a general m atter, a father has a fundamental liberty interest in maintaining his fam ilial relationship with his son.
See Quilloin v. Walcott , 434 U.S. 246, 255 (1978). We “have, in the Fourt eenth Amendment context, recognized that the relationship between parent and child is6Although § 3583 does not directly contemplate Jer rad Heiser’s interests,

the terms of supervised release would prevent him f rom any contact with his father. Of course, state courts possess the jurisd iction and expertise to address these concerns, and Mr. Edgin’s sentencing would in no way bar Mr. Edgin and Ms. Heiser from seeking to resolve their respective rights and Jerrad Heiser’s interests. -12- constitutionally protected.” Wise v. Bravo , 666 F.2d 1328, 1331 (10th Cir. 1981); see also id. at 1336-37 (Seymour, J., concurring) (relating cas es recognizing the “right to a relationship with one’s child”). Unwed fathers’ relationships are protected because of “a practical recognition that biology and association can together establish a relationship between father an d child that may be essential to the happiness of both, even if the formality of mar riage is missing.” Pena v.
Mattox , F.3d , 1996 WL 269989, *6 (7th Cir. 1996). However, a l ack of support for or relationship with the child is relev ant to the weightiness of the unwed father’s liberty interest. See generally id. Mr. Edgin has not appealed the special conditions w hich prevent him from contact with Ms. Heiser or Mr. Highman. These term s of supervised release may suffice to deter further criminal conduct by Mr. Ed gin directed at Ms. Heiser and Mr. Highman without a total prohibition on his cont act with his son. 6 On remand, the district court is free to consider “fine tuning ” the supervised-release conditions so that Mr. Edgin may not use contacts w ith his son to harass Ms. Heiser and Mr. Highman.
We REMAND to the district court for further findings.No. 95-6409, United States v. Theodore J. Edgin.

Kelly, Circuit Judge, concurring.

I concur in the court’s opinion, with the exception of the discussion concerning a constitutional liberty interest. Ther e is no need to reach this issue even as “a general matter” because the statute, 18 U.S.C. § 3583(d)(2), limits the extent of any deprivation of liberty. At this po int, we lack sufficient facts to decide whether Mr. Edgin has a constitutional liberty interest in his relationship with the child. I note that in both Quilloin v. Wa lcott , 434 U.S. 246, 254-56 (1978), and Pena v. Mattox , 84 F.3d 894, 899 (7th Cir. 1996), the biological fathers were unsuccessful in gaining relief on cons titutional claims. In this case, any constitutional liberty interest would have to b e balanced against the government’s right to restrict the liberty of a con victed person such as Mr. Edgin, whether it be for punitive, deterrence or rehabilit ative purposes.