IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 failing to register as a sex

offender after traveling in interstate commerce in violation of 18 U.S.C.

§ 2250(a). He appeals three conditions of his supervised release. First, he

appeals a ban on Internet use without permission of his probation officer. 

Second, he appeals certain aspects of a requirement that he participate in

mental health or sex offender treatment. Third, he appeals a restriction on

United States Court of Appeals

Fifth Circuit

F I L E D

May 16, 2013

Lyle W. Cayce

Clerk

*Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be

published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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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, Tang was convicted under Iowa law of assault with intent to

commit sexual abuse, not causing bodily injury. IOWA CODE § 709.11. Tang,

drunk at the time of the offense, touched a thirteen year old girl’s breast and

kissed her in an automobile. The offense occurred after the untimely death of

Tang’s seven year old daughter, who fought leukemia for four years. Tang

turned himself in for the offense, and, for the next eight years, compliantly

registered as a sex offender. The 2003 Iowa offense is his only criminal

conviction.

In 2011, Tang moved to Texas to pursue new work opportunities and a

romantic relationship. Before leaving Iowa, Tang notified his probation officer,

and, upon arriving in Texas, Tang went to the Houston Police Department

(“HPD”) to register and was told to return for a sex offender registration

information session. Tang returned and attended the information session, but

was asked to return again because HPD did not yet have Tang’s requisite

documentation from Iowa. As instructed, Tang went to the HPD a third time to

register, but he was turned away because HPD still did not have all the requisite

materials to complete his registration. Although Tang was asked to return to

HPD for a fourth visit scheduled for June 1, 2011 to finish the process, he did

not. Nor did he register as a sex offender with the Harris County Sheriff’s

Office. Thus, he failed to comply with federal law, which required him to

register. 18 U.S.C. § 2250(a).

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After determining that Tang was required to register as a sex offender in

Texas and that he had failed to do so, the Texas Department of Public Safety

notified the United States Marshal Service. The Marshal Service tried to find

Tang at the address he had provided during each of his visits to HPD but was

unable to do so because the address was at a residential location that Tang did

not own and at which Tang did not reside. The owner informed the Marshal

Service that he had given permission to Tang’s girlfriend to use the address to

register for a cell phone.1 Eventually, the Marshal Service was able to locate

Tang at another address in Cypress, Texas. Tang was arrested and charged

with a one 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 sentencing, Tang waived the United States Probation Office’s

preparation of a presentence investigative report (“PSR”) and pled guilty. In the

oral pronouncement of sentence, the district court imposed a “[split] sentence at

the low end of the eligible guideline range” consisting of three months of

imprisonment, three months of community supervision, and five years of

supervised release. Three conditions of Tang’s supervised release are at issue

in this appeal: (1) a ban on computer and Internet use, (2) sex offender-related

mental health treatment (including potential physiological 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:

1Though internally contradictory on the issue, the sentencing transcript seems to

indicate that Tang lived at the address for a short time, but then moved in with his girlfriend’s

family because the owner’s family members moved into that residence.

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The defendant shall not subscribe to any computer online

service or access any internet service during the length of his

supervision unless approved in advance by the probation officer.

The defendant may not possess internet cable software on any

hard drive, disk, floppy disk, DVD, diskette, or any other electronic

storage media unless approved in advance by the probation officer.

Tang’s lawyer objected to this condition by 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 lawyer stated that her

understanding that the ban would prevent Tang from accessing the Internet in

his home was the root of her objection.

Regarding the treatment program, the court explained:

The defendant shall participate in a mental health

program—treatment program and/or sex offender treatment

program provided by the registered sex offender treatment provider,

as approved by the United States Probation Office, which may

include but not be limited to group and/or individual counseling

sessions and or polygraph testing or medical-physiological testing to

assist in treatment and case monitoring administered by the sex

offender contractor or their designee.

The defendant shall participate as instructed and shall abide

by all policies and procedures of the sex offender program until such

time as the defendant is released from the program as approved by

the United States probation officer.

The defendant will incur any costs associated with such sex

offender treatment program and testing based on ability to pay as

determined by the probation officer.

The defendant shall waive his or her right to confidentiality

in any records for mental health treatment imposed as a

consequence of his judgment, allowing the supervising United

States probation officer to review the defendant’s course of

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treatment and progress with the treatment provide—and progress

with the treatment provider.

Tang’s lawyer objected, saying the potential physiological testing “seems greater

than necessary to achieve the goals of 3553”2and that “even group []

counseling—and that he waived confidentiality for any counseling that he

receives appears greater than necessary to achieve the goals.” Later, counsel

repeated that she “vehemently emphasized [her] objection to physiological

mental health treatment, whatever that might entail” as being “vague and

overbroad” and not related to his underlying offense of failing to register.

Regarding the restriction on contact with minors, the court stated:

The defendant shall not have any contact with any minor

children under the age of 18 without prior written permission of the

probation officer.

The defendant shall not cohabitate with anyone who has

children under the age of 18 unless approved in advance by the

probation officer.

The probation officer present clarified that the restriction does apply to one’s

own children. As she did with 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 overruled all of Tang’s objections; therefore, the Internet ban,

mental health and sex offender treatment, and restriction on contact with

minors all applied as conditions of Tang’s supervised release. In the section

restricting contact with minors, the written judgment changed “shall not

2

“3553” refers to 18 U.S.C. § 3553, explained in greater detail below.

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cohabitate with” to “shall not date or cohabitate with.” Tang timely appealed

these conditions, including the change in the written judgment.

II

We “first ensure thatthe district court committed no significant procedural

error, such as . . . failing to adequately explain the chosen sentence.” Gall v.

United States, 552 U.S. 38, 51 (2007). If there is no procedural error, we “then

consider the substantive reasonableness of the sentence imposed under an

abuse-of-discretion standard . . . tak[ing] into account the totality of the

circumstances.” Id. “To preserve error, an objection must be sufficiently specific

to alert the district court to the nature of the alleged error and to provide an

opportunity for correction.” United States v. Neal, 578 F.3d 270, 272 (5th Cir.

2009). We review the imposition of conditions of supervised release for abuse of

discretion. United States v. Paul, 274 F.3d 155, 165 (5th Cir. 2001). However,

“[w]hen a defendant objects to his sentence on grounds different from those

raised on appeal, we 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 district court generally has extensive discretion in imposing

conditions of supervised release, its discretion is limited by 18 U.S.C. § 3583(d),

which provides that the district court may impose 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 district

court shall consider, inter alia, the following four factors: (1) “the nature and

circumstances of the offense and the history and characteristics of the

defendant;” (2) “the need . . . to afford adequate deterrence to criminal conduct;”

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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 or vocational

training, medical care, or other correctional treatment in the most effective

manner.” 18 U.S.C. § 3553(a)(1), (2)(B)–(D); see Paul, 274 F.3d at 164–65. 

Section 3583(d) requires a reasonable relationship with only one of the four

factors, not necessarily all of them. United States v. Weatherton, 567 F.3d 149,

153 (5th Cir. 2009) (explaining a condition of release “must be reasonably related

to one of four factors”). In addition to being related to at least one of the four

factors, a condition of supervised release cannot involve a “greater deprivation

of liberty than is reasonably necessary for the purposes set forth in” § 3553. 18

U.S.C. § 3583(d)(2). The Supreme Courthas recognized that “[t]he congressional

policy in providing for a term of supervised release after incarceration is to

improve the odds of a successful transition from the prison to liberty.” Johnson

v. United States, 529 U.S. 694, 708–09 (2000).

A

Tang asserts the district court erred procedurally by not adequately

explaining the reasons for the Internet ban and restriction on contact with

minors. 18 U.S.C. § 3553(c) requires the district court to “state in open court the

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

reasons were given for these two conditions. We review for plain error because

Tang did not object on this ground at sentencing. Neal, 578 F.3d at 272. Thus,

we may not provide relief unless there was “(1) error, (2) that is plain, and (3)

that affects substantial rights.” United States v. Mares, 402 F.3d 511, 520 (5th

Cir. 2005) (internal quotation marks omitted). “Even when these elements are

met, we have discretion to correct the forfeited error only if it ‘seriously affects

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the fairness, integrity, or public reputation 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 court plainly erred, any error did not affect

Tang’s substantial rights. We acknowledge the Sixth Circuit recently held a

district court’s plain error in failing to state the reasons for its imposition of

supervised release conditions affected the defendant’s substantial 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 error affected the outcome of

the district court proceedings, insofar as the error may have had a substantial

influence on the outcome of the proceedings.” Id. at 735.

In our circuit, however, “[t]o show that an 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 undermine

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 that the error affected the

sentencing outcome.” Id. at 365 (emphasis added). Mondragon-Santiago noted

that “so far as within-Guidelines sentences are concerned,” our circuit

precedents reject the “argu[ment] that the district court’s error affect[s] . . .

substantial rights because it makes meaningful appellate review impossible.” 

Id. There, the district court plainly 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 an explanation would have changed his

sentence.” Id. The same result is required here because Tang does not explain

how compliance with § 3553(c) would have changed his sentence. Therefore, we

hold the district court did not reversibly err on procedural grounds.

B

Tang asserts the ban on Internet without approval from a probation officer

is contrary to U.S.Sentencing Guidelines Manual § 5D1.3(d)(7) and the § 3553(a)

factors. Our review is for abuse of discretion because Tang objected to this

condition at sentencing. Paul, 274 F.3d at 165. Section 5D1.3(d)(7)

recommends, as a special condition of release for an individual convicted of a

“sex offense,”3a limitation on the “use of a computer or an interactive computer

service in cases in which the defendant used such items.” U.S. SENTENCING

GUIDELINES MANUAL § 5D1.3(d)(7)(B) (2012) (emphasis added). The instant

offense for which Tang was sentenced is his failure to register. His prior offense,

assault with intent to commit sexual abuse, not causing bodily injury, did not

involve a computer or the Internet. There is no evidence that Tang has ever

used the Internet to commit an offense of any sort. Thus, Tang asserts this

condition cannot be based on § 5D1.3(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 involves a greater deprivation of liberty than reasonably necessary

given the circumstances. See 18 U.S.C. § 3583(d)(1)–(2).

3Tang’s failure to register qualifies as a sex offense. See U.S. SENTENCING GUIDELINES

MANUAL § 5D1.2 cmt. n.1.

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We agree. The Internet ban is not “reasonably related to the factors set

forth in” § 3553(a) and involves a greater deprivation of liberty than reasonably

necessary. 18 U.S.C. § 3583(d)(1)–(2). The ban does not relate to the “nature

and circumstances” of Tang’s offense: here, the failure to register as a sex

offender. 18 U.S.C. § 3553(a)(1); see Unites States v. Miller, 665 F.3d 114, 130

(5th Cir. 2011) (“The decisions of our court have tended to 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 for which the defendant was

convicted.”) (emphasis added), cert. denied, 132 S. Ct. 2773 (2012). Nor does it

relate to “the history and characteristics of the defendant” because Tang has

never committed an offense over the Internet and his prior conviction for assault

with intent to commit sexual abuse did not involve 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 Internet ban on an individual who has never used

computers for illicit purposes nor shown a proclivity to do so in the future, even

though, as the Government points out, the Internet is often used for such

purposes. 18 U.S.C. § 3553(a)(2)(B); see also Pepper v. United States, 131 S. Ct.

1229, 1239–40 (2011) (“It has been uniform and constant in the federal judicial

tradition for the sentencing judge to consider every convicted person as an

individual . . . .”) (citation and quotation marks omitted). Lastly, restricting

Tang’s access to a computer has the potential to stifle any “educational and

vocational training” Tang may need, so this factor weighs against imposing an

Internet ban. 18 U.S.C. § 3553(a)(2)(D). Although Internet bans are often

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 underlying offense, which Tang did not do here. U.S. SENTENCING

GUIDELINES MANUAL § 5D1.3(d)(7)(B) (2012). That the ban may be limited

insofar as Tang may gain access to the Internet after 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 abused its discretion in imposing this

blanket ban on all Internet use absent permission from a probation officer.

C

Tang appeals the condition that he “participate in a mental health

program—treatment program and/or sex offender treatment program provided

by the registered sex offender treatment provider, as approved by the United

States Probation Office.” Tang acknowledges he has had past problems with

alcoholism and depression. For that reason, he does not dispute that mental

health treatment is a reasonable condition of his supervised release. Rather, his

challenge is directed at certain aspects of the condition. Specifically, he points

to (1) the physiological testing, (2) the sex offender treatment, (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 without merit because the district court

included them only as options for the mental health professionals who treat

Tang, not as mandatory conditions. First, Tang complains that by including

“physiological testing” in its written judgment regarding his sentence, the

district court left available the troubling possibility that his treatment include

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intrusive and objectionable procedures, like plethysmography.4 The language

of the judgment, however, states that Tang’s treatment “may include . . .

physiological testing,” not “must include” such testing (emphasis added).

Second, Tang asserts the district court did not realize it could mandate

mental health treatment apart from sex offender treatment. The Sentencing

Guidelines contain two relevant provisions, one for mental health treatment and

another for sex offender treatment. Compare U.S. SENTENCING GUIDELINES

MANUAL § 5D1.3(d)(5) (2012), with U.S. SENTENCING GUIDELINES MANUAL

§ 5D1.3(d)(7) (2012). According to Tang, the district court did not have to—and

would not have, had it understood its authority—mandated treatment by the sex

offender treatment provider or left open the possibility of sex offender treatment,

but rather should have mandated only mental health treatment. The district

court, however, included sex offender treatment only as an alternative or

additional option to mental health treatment. The fact that any mental health

counseling would be administered by the sex offender treatment program does

not mean it would necessarily become sex offender treatment, as the district

4

“Penile plethysmograph testing is a procedure that involves placing a pressuresensitive device around a man’s penis, presenting him with an array of sexually stimulating

images, and determining his level of sexual attraction by measuring minute changes in his

erectile responses.” United States v. Weber, 451 F.3d 552, 554 (9th Cir. 2006) (internal

quotation marks omitted). Plethysmography has become “routine in the treatment of sexual

offenders and is often imposed as a condition of supervised release.” Id. In his original

appellate brief, Tang mistakenly cited the district court’s written judgment as including

plethysmograph testing as part of the sex offender treatment that was imposed on him as a

condition of supervised release. In his Reply Brief, Tang recognizes that this was error and

clarifies that the judgment at no point mentions plethysmography explicitly. Nevertheless,

Tang asserts plethysmography is a potential form of “physiological testing,” and that, despite

the lack of its explicit mention at the oral pronouncement of the sentence or in the written

judgment, it is a distinct possibility that Tang could be subjected to plethysmography as a

condition of his supervised release.

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court instructed the program to administer “a mental health . . . treatment

program and/or sex offender treatment program” (emphasis added). The

district court simply left to the discretion of the treatment provider the decision

of what type of treatment would be most effective; it 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 issue by the district court’s response to

Tang’s objection at sentencing, where the court indicated the treatment is “not

mandatory . . . . Just if [the Probation Office] determine[s] after he gets out

based on their own evaluation that they think he needs some mental health

treatment, that they would be able to refer him.” Accordingly, Tang’s first three

challenges are not ripe for review. United States v. Carmichael, 343 F.3d 756,

761 (5th Cir. 2003). If he is in fact required to submit to conditions such as

invasive physiological testing procedures, he may then petition the district court

for modification. 18 U.S.C. § 3583(e)(2); FED. R. CRIM. 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 techniques to be

utilized. . . . [W]e would do well to await a more concrete presentation of the

issue. Regardless, Rhodes can later petition the district court to modify the

condition.”) (citations omitted).

Fourth, Tang asserts the district court gave conflicting directions about

who will bear financial responsibility for the treatment. Tang did not object to

this aspect of the condition at sentencing; therefore, our review is for plain error. 

Neal, 578 F.3d at 272. During sentencing the district court stated, “The

defendant will incur any costs associated with such sex offender treatment

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program and testing based on ability to pay as determined by the probation

officer,” but in its response to Tang’s objections it said that “the probation

department actually is the one who pays for it.” The district court, however,

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 have much money.” Because we give credence to the

district court’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 confidentiality waiver is contrary to the fourth

§ 3553 factor.5 Tang objected to the waiver at sentencing, 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 psychotherapist without

running the risk that they would be used against him at a revocation hearing. 

The waiver could, however, advance the purposes of the fourth § 3553 factor by

allowing the probation officer to effectively monitor and aid in Tang’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 imposed this

condition. See United 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. 2001) 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 special condition of supervised release can be reasonably related to “provid[ing] the

defendant with needed educational or vocational training, medical care, or other correctional

treatment in the most effective manner.” 18 U.S.C. § 3553(a)(2)(D); see 18 U.S.C. § 3583(d)(1).

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D

Tang appeals the restriction on contact with minors, including his own

children, and on dating persons with minor children 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 restriction on contact with minors, including

children of his own, is overbroad and not reasonably related to the § 3553

factors.

In the oral pronouncement the district court stated, “The defendant shall

not cohabitate with anyone who has children under the age of 18 unless

approved in advance by the probation officer.” The written judgment, however,

states, “The defendant shall not date or cohabitate with anyone who has children

under the age of 18 unless approved in advance by the probation officer”

(emphasis added). Since Tang did not have the opportunity to object to the

dating restriction at the time of sentencing (as it had not yet been pronounced),

we review for abuse of discretion rather than plain error. United States v.

Bigelow, 462 F.3d 378, 381 (5th Cir. 2006). In Bigelow, we held where there is

a conflict between the oral pronouncement and the written judgment, the oral

pronouncement controls. Id. at 381. If the written judgment simply clarifies an

ambiguity in the oral pronouncement, we look to the sentencing court’s intent

to determine the sentence. United States v. Warden, 291 F.3d 363, 365 (5th Cir.

2002). Here, the oral pronouncement conflicts with the written judgment by

adding a new restriction, as cohabitation generally concerns Tang’s residential

life and dating generally concerns Tang’s social life. See Bigelow, 462 F.3d at

381; see also United States v. Vega, 332 F.3d 849, 852–53 (5th Cir. 2003)

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(explaining defendant’s “constitutional right to be present at sentencing” is

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 judgment that was not part of the oral

pronouncement of sentence.

Tang asserts the restriction on contact with minors is a greater

deprivation than reasonably necessary and unrelated to the § 3553 factors. In

particular, Tang asserts his prior conviction does not evince a generalized

inappropriate interest in children that would justify a restriction on his

parenting decisions as a deterrent to potential future criminal activity.6 Our

review is for abuse of discretion because Tang objected to this condition at

sentencing. Paul, 274 F.3d at 165.

The restriction on contact with minors is reasonably related to the § 3553

factors. First, it is reasonably related to Tang’s history, specifically his

conviction for assault of a minor with intent to commit sexual abuse. Second, it

is reasonably related to deterrence and protecting the public, as “Congress has

made clear that children . . . are members of the public it seeks to protect by

permitting a district court to impose appropriate conditions on terms of

supervised release.” United States v. Rodriguez, 558 F.3d 408, 417 (5th Cir.

2009). Lastly, the restriction is not a greater deprivation than reasonably

necessary as Tang can request permission to have contact with minors (or

cohabitate with someone having minor children). See 18 U.S.C. § 3583(d)(2).

6

It is not clear in the record whether Tang currently has children of his own.

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E

Tang asserts the district court unconstitutionally delegated its authority

to the Probation Office by giving the Office discretion over the length of Tang’s

mental health or sex offender treatment and Tang’s contact with minors.7 We

review this challenge for plain error because Tang did not object to the

delegation at his sentencing. Neal, 578 F.3d at 272. We addressed a similar

challenge to the Probation Office’s discretion over counseling in United States v.

Bishop, and we held any error in the limits of “a district court’s authority to

delegate to a probation officer the determination of whether and to what extent

a convicted defendant on supervised release must participate in counseling” was

not plain. 603 F.3d 279, 281 (5th Cir. 2010). In addition, we addressed a similar

challenge to the Probation Office’s discretion over contact with minors in United

States v. Rodriguez:

Probation officers have broad statutory authority to advise and

supervise persons on supervised release to improve the releasees’

conduct and lives, and to “perform any other duty that the court

may designate.” See 18 U.S.C. §§ 3601, 3603(3), (10). In Rodriguez’s

case, the district court recognized the association and residence

restrictions should be flexible, and accordingly designated to the

probation officer the duties to advise and supervise Rodriguez 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 showing plain error on the part of

the district court. Rodriguez, 558 F.3d at 417; Bishop, 603 F.3d at 281.

7Tang also asserts the district court unconstitutionally delegated its authority by giving

the Probation Office discretion over Tang’s Internet use, but we do not address this assertion

because we hold the Internet ban is not reasonably related to the § 3553 factors. See Part

III.A, supra.

17

 Case: 12-20043 Document: 00512244014 Page: 17 Date Filed: 05/16/2013
No. 12-20043

IV

In summary, we AFFIRM the mental health or sex offender treatment

condition and the restriction on contact with minors and VACATE the Internet

ban and dating restriction.

18

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