### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-20043

UNITED STATES OF AMERICA, Plaintiff – Appellee
v. DAVID HIEN VINH TANG, Defendant – Appellant

Appeals from the United States District Court for the Southern District of Texas USDC No. 4:11-CR-776-1

Before JOLLY, GARZA, and OWEN, Circuit Judges. PER CURIAM: * David Hien Vinh Tang pleaded guilty to f a i l i n g to register as a sex offender after tra v e l i n g in interstate c ommerce in violation of 18 U.S.C. § 2250(a). H e appeals three conditions of his s upervised release. First, he appeals a ban on I nternet u se without pe r m i s s i o n of h is p r obation officer. Second, he appeals c ertain aspects of a r equirement that he participate in mental health o r sex offender treatment. Third, he a ppeals a restriction on U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D May16, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et f orth in 5 T H C I R

. R. 47. 5. 4. Case: 12-20043 Document: 00512244014 Page: 1 Date Filed: 05/16/2013No. 12-20043

contact with minors, including children of his own, part of which is a ban on dating people with minor children. We AFFIRM in part and VACATE in part. I In 2003, T a n g was convicted under Iowa law o f assault with intent to commit s exual abuse, not causing bodily injury. I O WA C O D E § 7 0 9

. 1 1

. Tang, drunk at the time of the offense, touched a thirteen y e a r o ld girl’s b reast and kissed h er in an automobile. The offense occ u r r e d a f ter the untimely death of Tang’s s even year old daughter, who fought l e u k e m i a for f our y ears. Tang turn e d himself in for the o ffense, a n d, for the n ext eight y ears, compliantly registered as a sex offender. The 2003 Iowa offense is his only c r i m i nal conviction. In 2011, Tang m o v e d to Texas to pursue new wor k o p p ortunities and a romantic relationship. Before leaving Iowa, Tang notified h is probation officer, and, upon arriving in Texas, Tang went to the H ouston Police D epartment (“HPD”) to r egister a nd was t old to return for a sex offender registration information session. T ang returned and attended the information session, but

was asked to r etu r n a g a i n because HPD did not yet have T ang’s requisite documentation from Iowa. A s instructed, Tang went to the HPD a third time to register, but he was turned away because H PD still did n ot have a ll the requisite materials to complete h is registration. Although Tan g w a s a sked to return to HPD for a fourth visit scheduled f o r June 1, 2011 to finish the process, he did not. Nor did he register as a sex offender with th e H a r r i s C o unty Sheriff’s Office. Thus, h e fai l e d t o c o m ply with federal l a w, which required him to register. 18 U.S.C. § 2250(a).

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After d etermining that Tang w as required to register as a sex offender in Texas and that he had failed to do so, the Texas Departme n t o f P ub l i c Safety notified the United States Marshal Service. The Marshal Service tried to find T a ng at the address he h ad provided during each of his visits t o H P D b u t w a s unable to do so because the address was at a residential location that Tang did not own and at which T a n g did not reside. The owner informed the M arshal Service that he had given permission t o Tang’s girlfriend to use the address to register for a cell p hone. 1 E ventually, the M a r s h a l Service w as able to locate Tang at another ad d r e ss i n C ypress, Texas. Tang was arrested a nd charged with a o ne count indictment of failing to register as a sex offender after traveling in interstate commerce, in violation of 18 U.S.C. § 2250(a). At sentenc i ng, Tang waived the United States P robation Office’s preparation of a presentence i nvestigative report (“PSR”) and pled guilty. In the oral pronouncement of sentence, the district court imposed a “[split] sentence at the l o w end of the eligible guideline range” consisting o f three m onths of imprisonment, three months o f c ommunity supervision, and five y ears of supervised release. Three conditions o f Tang’s su p e r v ised release are at issue in this appeal: (1) a ban on computer and Internet use, (2) sex offender-related mental health treatment (including potential physio l ogical testing and a potential waiver of confidentiality), and (3) a restriction on contact with minors and persons whom Tang may date. At sentencing, the court stated the following regarding the Internet ban:

1 Though internally contrad ictory on the is s ue, the s ent e n c i n g t rans crip t s eem s to ind icate that Tang lived at the ad d res s f or a short tim e, but then m oved in with his girlf riend ’s f am ily becaus e the ow ner’s f am ily m em bers m oved into that res id ence.

3 Case: 12-20043 Document: 00512244014 Page: 3 Date Filed: 05/16/2013No. 12-20043 The defendant shall not s u b s cribe to any computer o nline service or access any internet service during the l e ngth o f his supervision unless approved in advance by the probation officer. The defendant may not possess internet cable software o n any hard drive, disk, floppy disk, DVD, diskette, or any other e lectronic storage media unless approved in advance by the probation officer. Tang’s l a wyer objected t o this condition b y saying, “I just wanted to add one

more objection, which is to the restriction of no online service or cable software

so that he could use the Internet.” Twice, Tang’s l a w y er s tated that her understanding that the ban would prevent Tang f rom accessing the Internet in his home was the root of her objection. Regarding the treatment program, the court explained: T h e defendant shall participate in a m ental health program—treatment p rogram and/or sex offender treatment progr a m p r ovi d e d b y the registered sex offender treatment provider, as approved by the United S t a t e s Probation O ffice, which may i n c l ude but not be limited to group a nd/or individual counseling sessions and or polygraph testing or medical-physiological t e s ting to assist in tr e a t ment and case monitoring administered b y the s ex offender contractor or their designee. The defendant shall participate a s instructed and shall abide by all policies a nd procedures o f the sex offender program until such time as the d efendant is released from the program as approved by the United States probation officer. The defendant will incur a ny c osts associated with such s ex offender treatment p rogram and t esting based on abi l ity t o pay as determined by the probation officer. The defendant shall waive h is or h er right to confident i a l i ty i n a ny records f

or mental health treatment imposed a s a consequence of his judgment, allowing the supe r vising U nited States probation officer to review the defendant’s cour s e of

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treatment a nd progress with the treatment provide—and progress with the treatment provider. Tang’s lawyer objected, saying the potential physiological testing “seems gr e ater than n ecessary to achieve the goals o f 3553” 2 and t h a t “ e v e n group [] counseling—and that he waived confidentiality for any counseling that he receives appears grea t e r t han necessary to achieve the goals.” Later, counsel
repe a t e d that she “vehemently emphasized [her] objection to p h ysiological mental health treatment, whatever that might entail” as b eing “vague and overbroad” and not related to his underlying offense of failing to register. Regarding the restriction on contact with minors, the court stated: T he defendant shall not h ave any contact with any m i n o r children u nder the age of 1 8 without prior w ritten permission of th e probation officer. The defendant shall not cohabitate w ith anyone who has children u n d e r the age of 18 unless a pproved in advance by th e probation officer. The probation o fficer p resent clarified that the r estriction does app l y t o one’s

own children. As she did w ith the two conditions discussed above, Tang’s counsel objected to the restriction, saying, “I .

. . object to the no contact with a child under 18 without permission and no cohabitation.” The court o verruled all of T ang’s objections; there f ore, the Internet ban, mental health and s e x o f f e n d er treatment, and restriction on contact with minors all a p p l i e d a s conditions o f Tang’s s upervised release. In the section restricting c ontact with m inors, the written jud g ment changed “shall not

2 “3553” ref

ers to 18 U

. S. C. § 3553, exp lained in greater d etail below

. 5 Case: 12-20043 Document: 00512244014 Page: 5 Date Filed: 05/16/2013No. 12-20043

cohabitate with” to “shall not date o r cohabitate with.” Tang timely a ppealed these conditions, including the change in the written judgment. II W e “f ir s t e n s u r e th at th e district court committed no significant p r o c e du r al
error, such a s . . . failing to adequately e xplain the chosen sentence.” Gall v. United States , 552 U.S. 38, 51 (2007). I f there is no procedural error, we “then consider the substantive reasonablen ess of the sentence i mposed under an abuse-of-discretion standard

. . . tak[ing] into account the totality of the circumstances.” Id

. “To preserve error, a n objection must be sufficiently specific to a l e r t t h e district court to the nature of the a lleged error and to provide an opportunity for c orrection.” United S t ates v. N eal , 5 78 F.3d 270, 272 (5th Cir. 2009). We review the imposition of conditions o f supervised release for abuse of discretion. United States v. Paul , 274 F .3d 155, 165 (5th Cir. 2001). However, “[w]hen a d e f

endant objects to his sentence on grounds different from those raised on appeal, w e review the new arguments raised on appeal for plain error only.” United States v. Mendina-Anicacio , 325 F.3d 638, 643 (5th Cir. 2003). III Although a d istrict court generally has extensive discretion in imposing conditions of supervised release, its discretion is limited b y 18 U.S.C. § 3583(d), which provides that the district court ma y i m p o s e conditions of supervised release that are reasonably related to the factors in 18 U.S.C. § 3553(a). 18 U

. S

. C

. § 3583(d)(1). Section 3553(a) states in relevant part that the distric t court shall consider, inter alia , the following four f a c t o r s : (1) “the nature and circumstances of the offense and t h e h istory and characteristics of the defendant;” (2) “the need

. . . t o afford adequate deterrence to criminal c onduct;”

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(3) “the need . . .to protect the public from further crime of the defendant;” and (4) “the need

. . . to provide the defendant with needed educational o r vocational t r aining, medical care, o r other correctional treatment in th e most effecti v e manner.” 18 U.S. C

. § 3 5 53(a)(1), (2)(B)–(D); see Paul , 274 F.3d at 164–65. Section 3583(d) r equires a reas onable relationship w ith only one of the four factors, not necessarily all of them. United States v. Weatherton , 5 67 F .3d 149, 153 (5th C ir. 2009) (explaining a c ondition of release “ m ust b e reasonably related t o one o f four factors”). In addition to being related to at least one o f t h e f o u r factors, a condition of supervised release cannot involve a “greater deprivation of liberty than is reasonably necessary for the purposes set forth in” § 3 553. 18 U.S.C. § 3 583(d)(2). The S u preme C o u rt h a s recognized that “ [t]he congressional
p o l i c y i n providing for a term of supervised release after incarceration is to improve the odds of a successful transition from the prison to liberty.” J ohnson v. United States , 529 U.S. 694, 708–09 (2000). A Tang asserts the district court erred p rocedurally by not adequately explaining the reasons f or the Internet ban and r estriction on c o n t a c t with minors. 1 8 U.S.C. § 3553(c) requires the district c o urt to “state in open court the

reasons for its i mposition of the particular sentence,” and Tang asserts no such

reasons were given for these two conditions. We review f or plain error because Tang did not object o n this ground at sentencing. Neal , 578 F.3d at 272. Thus,

we m ay not provide r e l i e f unless there was “(1) error, (2) that i s p l ain, and (3) that affects substantial rights.” United States v. Mares , 402 F.3d 511, 520 (5th Cir. 2 005) (internal quotation marks omitted). “Even when these elements are met, w e have discretion to correct the forfeited error only if it ‘seriously affects

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the fairness, integrity, or p ublic r eputation of judicial proceedings.’” United States v. Mondragon-Santiago , 564 F.3d 357, 361 (5th Cir. 2009) ( quoting Mares , 402 F.3d at 520). Even assuming the district cour t plainly erred, any e rror di d not affect Tang’s s ubstantial rights. We ac k n o wledge the Sixth Circuit recently held a district court’s plain error in failing to s ta t e t he reasons f or i t s imposition of supervised release conditio n s af f e c t e d th e d e f

e n d a nt ’ s s ub stantial rights because “the district court might not have imposed the special conditions of supervised release if it had explained the basis for these conditions.” United States v. Doyle , 711 F.3d 729, 736 (6th Cir. 2013). There, the court stated “a district court’s error affects a defendant’s substantial rights where the e rror affected the outcome of the district c ourt proceedings, insofar as the error mayhave had a substantial influence on the outcome of the proceedings.” Id . at 735. In our circu i t , h owever, “[t]o show that a n error affects a defendant’s substantial rights, the defendant must show that it affected the outcome in the district court” by “demonstrat[ing] a probability sufficient to un d ermine confidence in the outcome.” Mondragon-Santiago , 564 F

. 3d at 364 (internal quotation marks omitted). Though Mondragon-Santiago recognized that other circuits have relaxed this requirement in the sentencing context, it held “to show substantial prejudice, the defendant must prove t h at the error affected the sentencing outcome.” Id

. at 365 (emphasis added). M ondragon-Santiago noted that “so far as within-Guidelines sentences are c oncerned,” our circuit precedents reject the “argu[ment] that the district cou r t ’ s e r r o r affect[s]

. . . substantial rights because it makes m eaningful appellate r eview impossib l e.” Id

. There, the district court p lainly erred by not adequately stating its reasons

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for the sentence, but the error did not affect the defendant’s substantial rights because “he fail[ed] to show that a n explanation w ould have changed his sentence.” Id

. The same result is required here because Tang does n ot explain how compliance w ith § 3553(c) would have changed his sentence. Therefore, we hold the district court did not reversibly err on procedural grounds. B Tang asserts the b an on Internet without approval from a probation officer is contrary t o U

. S

. S e ntencing Guidelines Manual § 5D1.3(d)(7) and the § 3553(a) facto r s . O ur review is for abuse o f discretion because Tang objected to this condition at sentencing. Paul , 274 F

. 3 d at 165. Section 5D1.3(d)(7) recommends, as a special condition of rele a s e f or a n individual convicted of a “sex o ffense,” 3 a limitation on the “use of a c omputer or an interactive computer service in cas e s i n w h i c h the defendant used s uch items .” U.S. S E N T E N C I N G G U I D E L I N E S MA N U A L § 5D1. 3 ( d) ( 7 )(B) ( 2012) (emphasis a dded). The instant offense for which Tang w as sentenced is his failure to register. His prior offense,

a ssault with intent to c ommit sexual abuse, not causing b odily injury, did n o t involve a computer or the Internet. There is no evidence that T ang has e ver used the Internet to commit an offense of a n y sort. Thus, Tang asserts this condition cannot be based on § 5 D 1

. 3 ( d)(7). Tang further asserts the Internet ban does not satisfy the § 3553 factors. In particular, he claims the Internet ban is not “reasonably related” to the nature of the offense (here, the failure to register) and i nvolves a greater deprivation of liberty than reasonably necessary given the circumstances. See18 U.S.C. § 3583(d)(1)–(2).

3 Tang’s f ailure to regis ter qualif ies as a s ex of

f ens e. See U

. S. S E NT E N C I N G G U I DE L I N E S MANU AL § 5D 1. 2 cm t. n. 1. 9 Case: 12-20043 Document: 00512244014 Page: 9 Date Filed: 05/16/2013No. 12-20043

We a g r e e . T h e Internet ban is not “reasonably related to the factors set forth i n” § 3553(a) and involves a greater deprivation o f liberty than reasonably
necessary. 1 8 U.S.C. § 358 3 ( d) ( 1)–(2). The ban does n ot relate to the “nature and circumstances” of Tang’s offense: here, the failure to r egister as a sex offender. 1 8 U.S.C. § 3553(a)(1); see Unit e s States v. Miller , 665 F.3d 1 14, 130 (5th Cir. 2011) (“The decisions of our court h ave tended t o permit sentencing courts to give more weight to the goals of protecting the public and preventing recidivism in balancing those considerations with a defendant’s liberty interests when Internet usage was related to the offense f or w h i c h the defendant was convicted .”) (emphasis added), cert. denied , 132 S. Ct. 2773 (2012). Nor does it relate to “ t h e h i s tory and characteristics of the defendant” b ecause Tang has

never committed an offense over the Internet and his p rior conviction f or assault with i ntent to commit sexual abuse did n ot i nvolve any use of a computer or the finding of the minor victim online. 18 U.S.C. § 3553(a) ( 1). Deterrence is only marginally promoted by an Inter n et ban on an individual who has never used computers for illicit purposes nor shown a proclivity to do s o in the future, even though, as the Government points out, t h e I n t e r n et is often used for such
purposes. 18 U.S.C. § 3553(a)(2)(B); see also Pepper v. U nited States , 1 31 S. Ct. 1229, 1 239–40 ( 2011) (“It has been uniform and constant in the f ederal judicial tradition f

or the sentencing judge to consider every convicted person as an individual

. . . .”) (citation a nd quotation m arks omitted). Last l y , restricting Tang’s access to a computer has the potential to stifle a n y “ e ducational and vocational training” Tang may need, so this factor weighs against imposing an I n ternet ban. 18 U.S.C. § 3 553(a)(2)(D). Although Internet b ans a r e o f t e n reasonable conditions of release for sex offenders, the Sentencing Guidelines

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explicitly state that they are reasonable when the defendant used a computer in the u nderlying offense, which Tang did not do here. U.S. S E N T E N C I N G G U I D E L I N E S M A N U A L § 5 D1.3(d)(7)(B) (2012). That the ban may be limited insofar a s Tang may gain access to the Internet a fter requesting permission does not change the requirement that the condition be “reasonably related” to the § 3553 factors, a showing that has not been made. See 18 U.S.C. § 3583(d) ( 1). Therefore, we hold the district court ab u s e d its di scretion in imposing this blanket ban on all Internet use absent permission from a probation officer. C Tang appeals the condition that he “p articipa t e i n a mental health program—treatment program and/or sex offender treatment program p rovided by the registered s e x o f f e nder treatment provider, as approved by the United States Prob a t i o n O ffice.” Tang acknowledges he has h ad p a st p roblems with alcoholism and d epression

. F o r that reason, he does not dispute that mental health treatment is a reasonable condition of his supervised release. Rather, his challenge i s directed at certain aspects o f the c ondition. S pecifically, he points to (1) the physiological testing, (2) the sex offender t r eatment, (3) the mandatory nature of the treatment, (4) the funding of the treatment, and (5) the waiver of confidentiality in counseling sessions. The first three challenges are w i t hout merit because the district court include d t h em only as options for the mental health p rofessionals who treat Tang, not as mandatory conditions. First, Tang c o m p l a i n s that by including “physiological test i ng” in its written judgment regarding h is sentence, the district court left available the troubling possibility that his t reatment include

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intrusive and objectionable procedures, like plethysmography. 4 The language of the judgment, however, states that Tang’s treatm e n t “ m a y include

. . . physiological testing,” not “ m ust include” such testing (emphasis added). Second, Tang asserts the distri c t c o u rt did not realize it could mandate mental health t reat m e nt apart from sex o ffender treatment. The Sentencing Guidelines contain two relevant provisions, one for mental health treatment and

ano t her for sex o ffender treatment. Compare U.S. S E N T E N C I N G G U I D E L I N E S MA N U A L § 5D1.3( d) (5) ( 2012), w ith U.S. S E N T E N C I N G G U I D E L I N E S MA N U A L § 5D1.3(d)(7) (2012). According to Tang, the di strict c ourt did not have to—and would not have, had i t understood its authority—m a ndated treatment by the sex offender treatment provider or left open the possibility of sex offender tr e at m ent, b u t rather should have mandated only mental h ealth treatment. The dis t r i c t court, however, included sex offender treatment only a s an alternative or additional option to mental health treatment. The fact that any mental health counseling w ould be administered by the sex offender treatment program does not mean it would necessarily become s e x o f fender treatment, as the district

4 “Penile p lethys m ograp h tes ting is a p roced ure that involves p lacing a p res s ures ens itive device around a m an’s p enis , p res enting him w ith an array of s exually stim ulating im ages , and d eterm ining his level of s exual attraction by m eas uring m inute changes in his erectile res p ons es . ” U ni ted Sta tes v . Weber , 451 F. 3d 552, 554 ( 9th Cir. 2006) (internal quotation m ark s om itted). Plethys m ograp hy has becom e “routine in the treatm ent of s exual of f e n d e r s a n d is of

ten im p os ed as a cond ition of s up ervis ed releas e. ” Id

. In his original ap p ellate brief, Tang m is tak enly cited the d is trict court ’ s w ritten jud gm ent as includ ing p lethys m ograp h tes ting as p art of the s ex of f end er treatm ent that was im p os ed on him as a cond ition of s up ervis ed releas e. In his Rep ly Brief, Tang recognizes that this was error and clarif ies that the jud gm ent at no p oint m entions p lethys m ograp hy exp licitly. N evert heles s , Tang as s erts p lethys m ograp hy is a p otential f orm of “p hys iological tes ting, ” and that, d es pite the lack of its exp licit m ention at the oral p ronouncem ent o f t h e s entence or in the w ritten jud gm ent, it is a d is tinct p os s ibility that Tang coul d b e s ubjected to plethys m ograp hy as a cond ition of his s up ervis ed releas e. 12 Case: 12-20043 Document: 00512244014 Page: 12 Date Filed: 05/16/2013No. 12-20043

court instructed the program to admi n ister “ a mental health

. . . treatment progr a m a n d / or sex offender treatment program” (emphasis added). The district court simply l eft to the discretion of the treatment provider the decision

o f w h a t t y p e of treatment would be most effective; i t did not mandate sex offender treatment. Third, Tang asserts the treatment is, but should not be, mandatory. We

are aided in our understanding of this i ssue b y the distri c t c o u r t’s response to Tang’s objection at sentencing, where the court indicated the treatment is “not mand a t o r y . . . . Just if [the Probation Office] determine[s] after he gets out based o n their own evaluation that they think he needs some mental h ealth treatment, that they would be able t o refer him.” Accordingly, Tang’s first three challenges are not ripe for r eview. United States v. Carmichael , 343 F.3d 756, 761 (5th Cir. 2003). If h e i s in fact required to submit to conditio n s s u c h a s invasive physiological testing procedures, he may then petition the district court for modification. 1 8 U.S.C. § 3583(e)(2); F E D

. R. C R I M

. P. 32

. 1 ( c ) ; see United States v. Rhodes , 552 F.3d 624, 628– 29 (7th Cir. 2009) (“As the condition is stated, there is a fair amount of discretion regarding the tech n i q u e s to be utilized.

. . . [W]e would d o well t o await a more c oncrete presentation of the issue. Regardless, R hodes can later petition the di strict court to m odify the condition.”) (citations omitted). Fourth, Ta n g asserts the district court gave c onflicting directions about who will bear financial responsibility for the treatment. Tang did not object to this aspect of the c ondition at sentencing; therefore, our review i s for plain error. Neal , 5 78 F.3d at 272. During sentencing the district court stated, “The defendant will incur any costs associated wit h s u c h s e x offender treatment

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program and testing based on ability to pay as d e termine d by the probation officer,” but i n its r esponse to Tang’s objections i t said that “the probation department actually is the one who pays for it.” T h e district court, h owever, could have reasonably thought that by tying payment to Tang’s ability to pay, the Probation Office would actually pay for the treatment since Tang’s counsel stated Tang “doesn ’ t h a v e much money.” Because we give credence to the district c ourt’s response that “the probation department actually is the one [which would pay] for it,” the district court did not plainly err in allocating the financial burden of the treatment. Fifth, Tang asserts the confidentiali t y w a i v er is contrary to the fourth § 3553 factor. 5 Tang objected t o the waiver at s entencing, so our review is for abuse of discretion. Paul , 274 F.3d at 165. Tang premises his challenge on his inability to share his personal thoughts with any psychotherapi s t without running the risk that they would be used against him at a revocation hearing. The waiver c ould, however, advance the purposes o f the f ourth § 3553 factor by allowing the p robation officer to effectively monitor a nd a id i n T ang’s progress. Because the condition need only relate to one factor, Weatherton , 567 F.3d at153, and the waiver could aid in deterrence, the district court properly i m posed this condition. See U

nited States v. Dupes , 513 F.3d 338, 344–45 (2d Cir. 2008) (affirming confidentiality waiver condition on plain error review (citing Unites States v. Lopez , 258 F .3d 1053, 1057 (9th Cir. 2 001) and United States v . Cooper , 171 F.3d 582, 587 (8th Cir. 1999))). Therefore, the district court did not abuse its discretion by imposing the confidentiality waiver condition.

5 A s p ecial cond ition of s up ervis ed releas e can be reas onably related to “p rovid [ ing] the d ef end ant w ith need ed ed ucational or vocational training, m ed ical care, or other correctional treatm ent in the m os t ef f ective m anner. ” 18 U

. S. C. § 3553( a) ( 2) ( D ) ; see 18 U

. S. C

. § 3583( d) (1)

.

14 Case: 12-20043 Document: 00512244014 Page: 14 Date Filed: 05/16/2013No. 12-20043 D Tang appeals the restriction o n contact with mino r s , including his own children, and on dating persons with minor child r e n without approval from a probation officer. Tang asserts the restriction on dating in the written judgment conflicts with the oral pronouncement of sentence, which restricts cohabitation but not dating. He asserts the restric t i o n on contact with minors, including children of his own, is overbroad a n d n o t reasonably related to the § 3553 factors. In the oral pronouncement the district court stated, “The d efendant shall not cohabitate with anyone who has children under the age o f 1 8 u n less approved in advance by the probation o fficer.” The written judgment, h owever, states, “The defendant s hall not date or c ohabitate with anyone who has children under the age of 1 8 unless approved in advance by the probation officer” (em p hasis added). Since Tang did not have the opportunity to object to the dating restriction a t the time of sentencing (as i t had n ot y et been p r onounced),

we review for abuse of discretion r a t h e r t han p lain error. United States v. Bigelow , 462 F.3d 3 78, 381 (5th Cir. 2006). In Bigelow , we held where there is

a conflict b etween the oral pronouncement a n d the written judgment, the oral pronouncement controls. I d

. at 381. I f the written judgment simply c larifies an ambiguity in the oral pronouncement, we l ook to the sentenc i ng court’s intent to determine the sentence. United States v. Warden , 291 F.3d 363, 365 (5th Cir. 2002). Here, the o ral pronouncement conflicts with the w r i tten j udgment by adding a new r estriction, as cohabitation generally concerns T ang’s residential l i f e a nd dating generally concerns Tang’s social life. See B igelow , 462 F. 3 d a t 381; s ee also United States v. V ega , 332 F.3d 8 49, 8 52–53 ( 5 t h C ir. 2003)

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( e x plaining defendant’s “constitutional right to be p resent at sentencing” i s reason for ensuring oral pronouncement controls when written judgment adds condition). Accordingly, the district court abused its discretion by including an additional restriction in the written j udgment that w as not part o f t h e o ral pronouncement of sentence. Tang as s e r t s the restriction on c ontact with minors is a greater deprivation than reasonably necessary and unrelated to the § 3553 factors. In particular, T ang asserts his prior convi c t i o n does not evince a generalized inappropriate interest in c hildren that would just i f y a restriction on his parenting decisions as a deterrent to p o t e n tial future criminal activity. 6 Our review i s for abuse o f discretion because Tang obje c t e d to this condition at sentencing. Paul , 274 F.3d at 165. The restriction on contact w ith m inors is reasonably related to the § 3553 factors. First, it is r easonably related to Tang ’ s h i s t ory, specifically his conviction for assault of a minor w ith intent to commit sexual abuse. Second, it is r easonably related to d eterrence and protecting the public, as “Congress has made clear that children

. . . are members of the p u b l i c i t seeks t o protect by
per m i t ting a district court to impose appropriate conditions on t erms of supervised r elea s e . ” U n i ted States v. Rodriguez , 558 F.3d 408, 417 (5th Cir. 2009). Lastly, the restriction is not a greate r d e p rivation than reasonably
necessary a s Tang can request permission to have contact with minors (or cohabitate with someone having minor children). See 1 8 U.S.C. § 3583(d)(2).

6 It is not clear in the record w hether Tang currently has child ren of his ow n. 16 Case: 12-20043 Document: 00512244014 Page: 16 Date Filed: 05/16/2013No. 12-20043 E Tang asserts the district court unconstitutionally delegated its authority to the Probation Office by giving the O f fice discretion over the length of Tang’s mental health or sex offender treatment and Tang’s contact with m inors. 7 We review t h i s c hallenge f or plain error because Tang did not object to the delegation at his sentencing. Neal , 578 F.3d at 272. We addressed a similar challenge t o th e Probation Office’s discretion over counseling in United States v. Bishop , a nd w e held any error in the limits o f “a d i strict court’s authority to delegate to a p robation officer the d etermination o f whether and to w hat extent

a convicted d efendant on supervised release must participate in c ounseling” was not plain. 603 F.3d 2 79, 281 (5th C ir. 2 010). I n addition, we addressed a similar challenge to the Probation Office’s discretion o ver contact with minors in United States v. Rodriguez : Probation officers have bro a d statutory authority to advise and sup e r v ise persons on supervised release to improve the releasees’ conduct a n d l i v es, and to “perform any other duty that the court may designate.” See 18 U.S.C. §§ 3601, 3603(3), (10). I n Rodriguez’s case, the district court recognized the association and residence restrictions should be flexible, and accordingly design a t e d to th e probation officer the duties to advise and supervise R odriguez with respect to these restrictions. 558 F.3d 408, 414–15 (5th Cir. 2009) (footnote omitted). Like in Rodriguez and Bishop , Tang’s challenges do not succeed in show i n g p l ain error on the part of the district court. Rodriguez , 558 F.3d at 417; Bishop , 603 F.3d at 281.

7Tang als o as s erts the d is trict court uncons titutionally d elegated its authority b y giving the Probation O ff

ice d is cretion over Tang’s Internet us e, but we d o not ad d res s this as s ertion becaus e w e hold the I nternet ban is not reas onably r e l a t e d t o t he § 3553 f actors

. See Part III. A, sup ra . 17 Case: 12-20043 Document: 00512244014 Page: 17 Date Filed: 05/16/2013No. 12-20043 IV In summary, w e AFFIRM the mental health o r s e x offender treatment condition and the restriction on c ontact w ith minors and VACATE the Internet ban and dating restriction.

18 Case: 12-20043 Document: 00512244014 Page: 18 Date Filed: 05/16/2013