United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 5, 2006 Decided June 27, 2006

No. 05-3161

UNITED STATES OF AMERICA,

APPELLEE

v.

ROGER JAMES SULLIVAN,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 04cr00082-01)

Laina C. Wilk argued the cause for appellant. With her on

the briefs was Thomas G. Corcoran, Jr. Herbert A. Dubin

entered an appearance.

Suzanne C. Nyland, Assistant U.S. Attorney, argued the

cause for appellee. With her on the brief were Kenneth L.

Wainstein, U.S. Attorney, and Roy W. McLeese, III, Thomas J.

Tourish, Jr., and Barbara E. Kittay, Assistant U.S. Attorneys.

Before: SENTELLE and BROWN, Circuit Judges, and

EDWARDS, Senior Circuit Judge.
2

Opinion for the Court filed by Senior Circuit Judge

EDWARDS.

Concurring opinion filed by Circuit Judge SENTELLE.

EDWARDS, Senior Circuit Judge: Appellant Roger James

Sullivan pled guilty to one count of knowingly possessing child

pornography images that were transported in interstate

commerce via the Internet, in violation of 18 U.S.C.

§ 2252A(a)(5)(B) (2000). Appellant moved to have his

indictment dismissed by the District Court, arguing that

Congress lacked the power to proscribe purely intrastate

possession of pornography, regardless of whether the

pornography had traversed interstate over the Internet. The

District Court denied Sullivan’s motion, holding that Congress

acted within its authority under Article I, § 8 of the Constitution

when it criminalized certain activities relating to material

constituting or containing child pornography. 

On appeal, Sullivan renews his constitutional claim. We

agree with the District Court that his argument fails. The

Supreme Court’s decision in Gonzales v. Raich, 125 S. Ct. 2195

(2005), which was decided after the District Court’s ruling,

directly controls the disposition of this case. We also reject

appellant’s objections to the conditions of his supervised release

imposed by the District Court. 

I. BACKGROUND

Section 2252A(a)(5)(B) prohibits:

knowingly possess[ing] any book, magazine, periodical,

film, videotape, computer disk, or any other material that

contains an image of child pornography that has been

mailed, or shipped or transported in interstate or foreign

commerce by any means, including by computer, or that

was produced using materials that have been mailed, or
3

shipped or transported in interstate or foreign commerce by

any means, including by computer.

18 U.S.C. § 2252A(a)(5)(B) (2000). On February 19, 2004,

appellant was indicted on one count of possession of ten or more

items of child pornography that had been transported in

interstate or foreign commerce by computer, in violation of

§ 2252A(a)(5)(B). In November 2004, Sullivan executed a plea

agreement, which included a proffer of facts supporting a guilty

plea on the § 2252A(a)(5)(B) charge; he then entered a

conditional plea of guilty, preserving for appeal the issue of

whether § 2252A(a)(5)(B), as applied to him, exceeded

Congress’ authority under the Commerce Clause. 

The proffer of facts supporting the plea agreement is

straightforward. In 2002, appellant was working for FOX News

Productions in Washington, D.C. FOX is a broadcast and cable

news network that produces and distributes news and

information programs throughout the United States. In March

2002, the FBI received a telephone call from an employee at

FOX, reporting that approximately 75,000 files of pornography

had been found on the computer at appellant’s workplace. The

FBI retrieved the hard drive and “zip disks” from appellant’s

computer and found thousands of images of child pornography

that had been downloaded from various Internet sites, through

Usenet, located in Atlanta, Georgia, via the FOX News Internet

provider, MCI UUNet, whose server is located in Herndon,

Virginia. The National Center for Missing and Exploited

Children analyzed the pornography and determined that many

of the images were downloaded from Eastern European and

Russian Internet sites. An officer from the United States Navy

Center for Child Protection would have testified that, in her

expert opinion, at least 24 of the images given to her for

examination contained enough detail and content to determine

that they depicted children who were under 18 years of age and

four images depicted children who were prepubescent. An
4

expert in Forensic Audio, Video and Image Analysis from the

FBI Laboratory would have testified that these images were

taken from photographs of real children and were not artificially

created. 

Appellant admitted that he personally downloaded the

images of child pornography from the Internet. He admitted that

he knew it was illegal to download the imagines of child

pornography from the Internet. He acknowledged that he had

exclusive access to his computer, so no one else was involved in

downloading the pornography to his computer. He also

admitted that he had copied the contents of his hard drive to a

substitute hard drive and that he had acquired the zip disks in

order to move personal data, including the images of child

pornography, from the hard drive of his workplace computer. 

On December 8, 2004, Sullivan moved to dismiss the

indictment on the ground that 18 U.S.C. § 2252A(a)(5)(B), as it

applied to him, exceeded Congress’ authority under the

Commerce Clause. On December 22, the District Court

convened a motions hearing and both parties offered arguments

addressing the Eleventh Circuit’s decision in United States v.

Maxwell, 386 F.3d 1042 (11th Cir. 2004) (“Maxwell I”), which

had held that Congress could not regulate intrastate possession

of child pornography. Maxwell I was vacated and remanded by

the Supreme Court in light of Gonzales v. Raich, see United

States v. Maxwell, 126 S. Ct. 321 (2005) (mem), and

subsequently overturned by the Eleventh Circuit, see United

States v. Maxwell, 446 F.3d 1210 (11th Cir. 2006) (“Maxwell

II”). 

Without the benefit of either Raich or Maxwell II, the

District Court denied appellant’s motion to dismiss the

indictment. The court ruled that § 2252A(a)(5)(B) was

constitutional as applied to Sullivan, because the images of

child pornography were “instrumentalities” or “things” in

interstate commerce and passed over the Internet, a “channel” of
5

interstate commerce, or, alternatively, because the conduct at

issue – possession of child pornography – has a substantial

relation to interstate commerce. In the trial court’s view,

Congress acted within its authority when it sought to limit the

supply and demand for child pornography by targeting all

participants in the illicit market: 

Congress intended to reach people who create this kind of

material, and also people who are seeking it through

whatever means, including through the Internet. People

like Mr. Sullivan fuel the market for it.

Motions Tr. at 30. 

Subsequently, on September 16, 2005, the District Court

conducted a hearing to address issues related to appellant’s

sentence. After securing the parties’ agreement that the

Presentence Report (“PSR”) contained no factual errors, the

court went on to hear arguments regarding the proper sentence.

The court explained that it would apply the 2002 Sentencing

Guidelines, not the version currently in force, in order to give

appellant the benefit of a lower base offense level. See United

States v. Bolla, 346 F.3d 1148, 1151 n.1 (D.C. Cir. 2003)

(discussing U.S.S.G. §§ 1B1.11(a) & 1B1.11(b)(1)). The parties

presented arguments related mainly to Sullivan’s psychological

condition and the method of applying the Guidelines in light of

United States v. Booker, 543 U.S. 220 (2005). The District Court

then sentenced appellant to 30 months’ imprisonment, to be

followed by two years of supervised release. Three of the

conditions of supervised release are at issue in this appeal: 

(1) The defendant shall not possess or use a computer that

has access to any “on-line computer service” at any

location, including his place of employment, without the

prior written approval of the Probation Office. “On-line

computer service” includes, but is not limited to, any
6

Internet service provider, bulletin board system, or any

other public or private computer network. 

. . . 

(2) Without the approval of a legal guardian, the defendant

shall have no direct, or indirect, contact with children, age

18 or younger, and shall refrain from loitering in any place

where children congregate, including but not limited to

residences, arcades, parks, playgrounds, and schools. He

shall not reside with a child or children under the age of 18

without the expressed and written approval of the minor’s

legal guardian and the written permission of the Court. 

(3) The defendant shall not possess any pornographic,

sexually oriented, or sexually stimulating materials,

including visual, auditory, telephonic, or electronic media,

and/or computer programs or services that relevant [sic] to

the offender’s deviant behavior pattern. He shall not

patronize any place where pornography or erotica can be

accessed, obtained, or viewed, including establishment [sic]

where sexual entertainment is available. 

Judgment in a Criminal Case, United States v. Sullivan, CR 04-

82 (D.D.C. 2005), at 3-4 (numbering added).

Appellant now renews his challenge to the indictment,

maintaining that, as applied to him, § 2252A(a)(5)(B) represents

an unconstitutional exercise of congressional power. He also

challenges certain of the conditions of supervised release

imposed by the District Court. 

II. ANALYSIS

A. The Constitutionality of Sullivan’s Indictment

Appellant makes the following argument in support of his

appeal:
7

Title 18 U.S.C. § 2252A(a)(5)(B) is unconstitutional as

applied to Sullivan because the statute exceeds Congress’

authority pursuant to the Commerce Clause. In [United

States v. Lopez, 514 U.S. 549, 558 (1995)], the Supreme

Court identified three areas that Congress could regulate

pursuant to the Commerce Clause: 1) the channels of

interstate commerce; 2) the instrumentalities of interstate

commerce; and 3) conduct that substantially affects

interstate commerce. 514 U.S. at 558-59. As case authority

shows, the conduct regulated here – possession – is a purely

intrastate activity, and therefore if it may be regulated at all,

it can be regulated only pursuant to the third Lopez

category. . . . Congress cannot regulate Sullivan’s conduct

pursuant to the third Lopez category because the conduct

did not substantially affect interstate commerce.

Appellant’s Br. at 11-12. The problem with this argument is

that it completely ignores the Court’s decision in Gonzales v.

Raich. 

The question before the Court in Raich was “whether the

power vested in Congress by Article I, § 8, of the Constitution

‘[t]o make all Laws which shall be necessary and proper for

carrying into Execution’ its authority to ‘regulate Commerce

with foreign Nations, and among the several States’ includes the

power to prohibit the local cultivation and use of marijuana in

compliance with California law.” 125 S. Ct. at 2199. In

answering this question in the affirmative, the Court tellingly

noted:

Our case law firmly establishes Congress’ power to regulate

purely local activities that are part of an economic “class of

activities” that have a substantial effect on interstate

commerce. See, e.g., [Perez v. United States, 402 U.S. 146,

151 (1971)]; Wickard v. Filburn, 317 U.S. 111, 128-129

(1942). As we stated in Wickard, “even if appellee’s

activity be local and though it may not be regarded as
8

commerce, it may still, whatever its nature, be reached by

Congress if it exerts a substantial economic effect on

interstate commerce.” Id., at 125. We have never required

Congress to legislate with scientific exactitude. When

Congress decides that the “‘total incidence’” of a practice

poses a threat to a national market, it may regulate the

entire class.

Id. at 2205-06. Careful review of the Court’s decision in Raich

makes it clear to us that the holding there controls the

disposition of this case. If, under Raich, Congress may

criminalize purely intrastate production and use of marijuana, it

follows here that it may criminalize possession of child

pornography that has been transmitted through multiple states

via the Internet.

Under federal law, marijuana is classified as a Schedule I

drug, 21 U.S.C. § 812(c), and its use is therefore illegal, id.

§§ 841(a)(1), 844(a), with a very limited exception for research

uses, id. § 823(f). California’s Compassionate Use Act,

however, allowed certain patients with a doctor’s approval to

cultivate, possess, and consume marijuana. Raich, 125 S. Ct. at

2199. The plaintiffs in Raich included “California residents who

suffer[ed] from a variety of serious medical conditions and . . .

sought to avail themselves of medical marijuana pursuant to the

terms of the Compassionate Use Act.” Id. at 2199-2200. They

were under the care of licensed, board-certified family

practitioners, who had concluded that marijuana was the only

drug available that would give these parties effective treatment.

Id. at 2200. When it was determined that their possession and

use of marijuana violated federal law, the Raich plaintiffs

brought suit against the Attorney General seeking injunctive and

declaratory relief prohibiting the enforcement of the Controlled

Substances Act (“CSA”) insofar as it abrogated their rights

under the Compassionate Use Act. As noted above, the only

issue before the Court in Raich was whether Congress could
9

criminalize intrastate possession and use of marijuana.

Significantly, the Raich plaintiffs did not attack the provisions

of the CSA on their face, but mounted only an as-applied

challenge. See id. at 2204-05. Despite the narrowness of the

challenge, the Court found no constitutional defect in the

Government’s enforcement of federal drug law. 

In support of the proposition that Congress had “power to

regulate purely local activities that are part of an economic

‘class of activities’ that have a substantial effect on interstate

commerce,” id. at 2205, the Court described the evolution of the

Commerce Clause:

As charted in considerable detail in United States v. Lopez,

our understanding of the reach of the Commerce Clause, as

well as Congress’ assertion of authority thereunder, has

evolved over time. The Commerce Clause emerged as the

Framers’ response to the central problem giving rise to the

Constitution itself: the absence of any federal commerce

power under the Articles of Confederation. For the first

century of our history, the primary use of the Clause was to

preclude the kind of discriminatory state legislation that had

once been permissible. Then, in response to rapid industrial

development and an increasingly interdependent national

economy, Congress “ushered in a new era of federal

regulation under the commerce power,” beginning with the

enactment of the Interstate Commerce Act in 1887, 24 Stat.

379, and the Sherman Antitrust Act in 1890, 26 Stat. 209,

as amended, 15 U.S.C. § 2 et seq.

Cases decided during that “new era,” which now spans

more than a century, have identified three general

categories of regulation in which Congress is authorized to

engage under its commerce power. First, Congress can

regulate the channels of interstate commerce. Perez v.

United States, 402 U.S. 146, 150 (1971). Second, Congress

has authority to regulate and protect the instrumentalities of
10

interstate commerce, and persons or things in interstate

commerce. Ibid. Third, Congress has the power to regulate

activities that substantially affect interstate commerce.

Ibid.; NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1,

37, 57 S.Ct. 615, 81 L.Ed. 893 (1937).

Id. at 2205 (footnotes omitted). The Court then noted that only

the third category – regulation of activities that substantially

affect interstate commerce – was at issue in the case. Id.

In amplifying this third category, the Raich Court focused

on its decision in Wickard v. Filburn, 317 U.S. 111 (1942),

which had held that Congress’ interstate commerce authority

allowed it to regulate the production of wheat intended for

personal consumption on a farm. Central to the Court’s analysis

in Wickard was the premise that even if the effect of homegrown

wheat on interstate commerce was trivial, it remained within the

ambit of congressional authority. See Wickard, 317 U.S. at 127-

28. The Raich Court found that the “similarities between this

case and Wickard are striking.” 125 S. Ct. at 2206. Both cases

involved the cultivation, “for home consumption, [of] a fungible

commodity for which there is an established” interstate market.

Id. And “[j]ust as the Agricultural Adjustment Act [in Wickard]

was designed ‘to control the volume [of wheat] moving in

interstate and foreign commerce in order to avoid surpluses . . .’

and consequently control the market price, a primary purpose of

the CSA [in Raich] is to control the supply and demand of

controlled substances in both lawful and unlawful drug

markets.” Id. at 2206-07 (third and fourth alterations in original)

(internal citations omitted). The Court thus concluded that

“Congress had a rational basis for concluding that leaving homeconsumed marijuana outside federal control would . . . affect

price and market conditions,” especially given the risk of illicit

diversion of homegrown marijuana into the interstate market.

Id. at 2207. 
11

The Court in Raich then stated the applicable test for

assessing the scope of Congress’ authority under the Commerce

Clause to enact comprehensive legislation:

[W]e stress that the task before us is a modest one. We

need not determine whether respondents’ activities, taken

in the aggregate, substantially affect interstate commerce in

fact, but only whether a “rational basis” exists for so

concluding.

Id. at 2208. Applying this test, the Court held that,

[g]iven the enforcement difficulties that attend

distinguishing between marijuana cultivated locally and

marijuana grown elsewhere . . . and concerns about

diversion into illicit channels, we have no difficulty

concluding that Congress had a rational basis for believing

that failure to regulate the intrastate manufacture and

possession of marijuana would leave a gaping hole in the

CSA. Thus, as in Wickard, when it enacted comprehensive

legislation to regulate the interstate market in a fungible

commodity, Congress was acting well within its authority

to “make all Laws which shall be necessary and proper” to

“regulate Commerce . . . among the several States.” U.S.

Const., Art. I, § 8. That the regulation ensnares some

purely intrastate activity is of no moment. As we have done

many times before, we refuse to excise individual

components of that larger scheme.

Id. at 2209 (footnote omitted and second ellipsis in original).

Applying this test to facts of this case, we must conclude

that Congress was acting well within its authority under Article

I, § 8 – i.e., “to regulate activities that substantially affect

interstate commerce,” Raich, 125 S. Ct. at 2205 – in

criminalizing possession of child pornography transmitted

through several states via the Internet. The prohibition against

possessing child pornography transported in interstate commerce
12

by computer is one important aspect of a comprehensive

legislative scheme aimed at eliminating traffic in child

pornography. Section 2252A(a)(5)(B), which is at issue in this

case, was enacted as part of the Child Pornography Prevention

Act of 1996, Pub. L. No. 104-208, §121(3), 110 Stat. 3009,

3009-28 (1996) (the “CPPA”). The regulatory scheme enacted

by Congress to deal with child pornography prohibits:

exploiting children by producing child pornography using

materials in interstate commerce, 18 U.S.C. § 2251 (2000);

transporting, shipping, or receiving depictions of child

pornography in foreign or interstate commerce, id. § 2252;

producing or exporting child pornography abroad with the intent

that it enter the United States, id. § 2260; and possessing child

pornography that has traveled in interstate commerce, id.

§ 2252A. The statute also subjects property used in child

pornography offenses to criminal and civil forfeiture provisions.

Id. §§ 2253-2254. 

Like the illicit drug networks motivating passage of the

CSA, the trade in child pornography is “quintessentially

economic.” See Raich, 125 S. Ct. at 2211. The Court explained

that “economics” refers to “the production, distribution, and

consumption of commodities.” Id. at 2211 (quoting WEBSTER’S

THIRD NEW INTERNATIONAL DICTIONARY 720 (1966)). The

activities targeted by Congress in its anti-child pornography

legislation clearly fit this definition. Like marijuana, child

pornography is “a fungible commodity for which there is an

established, albeit illegal, interstate market.” Id. at 2206.

Controlling the trade of child pornography thus requires

regulation of the illicit marketplace. Intrastate possession of

digital child pornography is susceptible to “diversion” into

interstate markets, at least as much as marijuana. Accordingly,

the Government’s efforts to control the illicit marketplace by

limiting supply and demand is facilitated by regulation of

intrastate possession of child pornography. 
13

Indeed, the economic effects in this case appear to be even

more compelling than those in Raich or Wickard. In contrast to

wheat or marijuana, the supply of electronic images of child

pornography has a viral character: every time one user

downloads an image, he simultaneously produces a duplicate

version of that image. Transfers of wheat or marijuana merely

subdivide an existing cache; transfers of digital pornography, on

the other hand, multiply the existing supply of the commodity,

so that even if the initial possessor’s holdings are destroyed,

subsequent possessors may further propagate the images. This

means that each new possessor increases the available supply of

pornographic images. This multiplying effect highlights the

importance of eliminating a possessor’s stash in the first

instance, before it can be disseminated into the marketplace.

As Congress noted in the findings attached to the CPPA,

“prohibiting the possession and viewing of child pornography

will encourage the possessors of such material to rid themselves

of or destroy the material, thereby helping to protect the victims

of child pornography and to eliminate the market for the sexual

exploitative use of children.” Pub. L. No. 104-208,

§ 121(1)(12), 110 Stat. at 3009-27 (emphasis added). In

Wickard, the Court recognized that the congressional objective

of controlling the market for wheat by regulating its price “can

be accomplished as effectively by sustaining or increasing the

demand as by limiting supply,” including the homegrown supply

consumed by farmers. 317 U.S. at 127-28. Criminalizing

possession of child pornography likewise increases the “price”

of pornography by attaching the risk of prosecution, a market

intervention meant to eliminate the illicit trade. 

In sum, following Raich, we find that a rational basis exists

for believing that failure to regulate the intrastate possession of

child pornography that has been “transported in interstate or

foreign commerce . . . by computer,” see 18 U.S.C.

§ 2252A(a)(5)(B), would leave a significant gap in Congress’
14

comprehensive efforts to eliminate the market for sexually

exploitative uses of children. That the application of

§ 2252A(a)(5)(B) might “ensare[] some purely intrastate activity

is of no moment.” Raich, 125 S. Ct. at 2209. Congress

legitimately identified a national problem that is quintessentially

economic, i.e., it involves the manufacture and distribution of a

commodity subject to the forces of supply and demand. To

ameliorate that problem, Congress intervened in an illicit

marketplace. Because it could rationally conclude that intrastate

possession of child pornography has an effect on those market

forces, it acted within its authority in proscribing possession.

Both the holding and reasoning of Raich apply easily to this

case. 

It is noteworthy that every appellate court that has

considered this question post-Raich has reached the same

conclusion that we reach today. In Maxwell II, the Eleventh

Circuit was able to “find very little to distinguish

constitutionally Maxwell’s claim from Raich’s.” Maxwell II,

446 F.3d at 1216 (footnote omitted). Following the Court’s

analysis in Raich, the Maxwell II court determined that “the

CPPA is part of a comprehensive regulatory scheme

criminalizing the receipt, distribution, sale, production,

possession, solicitation and advertisement of child

pornography.” Id. at 1216-17. The court therefore reversed its

earlier course and upheld Maxwell’s conviction. The Fourth

Circuit likewise rejected an as-applied challenge to

§ 2252A(a)(5)(B) in United States v. Forrest, 429 F.3d 73 (4th

Cir. 2005). Having found the case before it “strikingly similar

to Raich,” the court explained that “in both instances Congress

had a rational basis for concluding that prohibition of mere local

possession of the commodity was essential to the regulation of

‘an established, albeit illegal, interstate market.’” Id. at 78

(quoting Raich, 125 S. Ct. at 2206). Finally, the Tenth Circuit

has twice invoked Raich in rejecting similar attacks on § 2251’s

prohibition against producing child pornography using materials
15

that have been shipped in interstate commerce, United States v.

Grimmett, 439 F.3d 1263 (10th Cir. 2006); United States v.

Jeronimo-Bautista, 425 F.3d 1266 (10th Cir. 2005), and the

Sixth Circuit has cited Raich in rebuffing an attack on

§ 2252(a)(1), United States v. Chambers, 441 F.3d 438 (6th Cir.

2006). Applying the principles set forth in Raich, we, too, are

constrained to reject the constitutional challenge to

§ 2252A(a)(5)(B). 

B. The Terms of Supervised Release 

Sullivan also challenges the conditions of supervised

release, focusing on the conditions that (1) restrict his use of

computer and Internet services, (2) require him to have approval

from the Probation Office before having any contact with

minors, and (3) forbid his possession of “sexually stimulating

material” and video equipment. He asserts that these conditions

were unlawfully imposed, because they were not listed as

suggested conditions of release in either the 2002 Sentencing

Guidelines or the PSR and he received no other advance notice

that the court might impose them, as allegedly required by

Federal Rule of Criminal Procedure 32(i)(1)(C). Appellant also

contends that the conditions are inconsistent with the statutory

factors listed in 18 U.S.C. § 3553(a) (2000), which the court was

bound to consider in issuing non-mandatory (or “special”) terms

of supervised release, see id. § 3583(d), and that the District

Court never “substantiated” the need for the disputed conditions.

Applying the applicable plain error standard of review, we find

none of these arguments persuasive.

Our analysis of appellant’s sentencing arguments turns on

his failure to lodge any objections with the District Court.

Appellant and his counsel stood in the sentencing judge’s

presence, listened to the specific terms of the sentence, and yet

voiced no objections to any alleged lack of advance notice or

opportunity to comment on the proposed conditions, or to the

substance of the terms of supervised release. When a defendant
16

fails to raise a timely objection with the District Court, we

review arguments introduced on appeal for plain error. United

States v. Simpson, 430 F.3d 1177, 1183 (D.C. Cir. 2005). To

prevail, an appellant must show that the District Court

committed (1) a legal error that was (2) “plain” (a term that is

synonymous with “clear” or “obvious”), and that (3) affected the

appellant’s substantial rights. United States v. Olano, 507 U.S.

725, 732-34 (1993). If all three conditions are met, we retain

discretion to notice a forfeited error, but only if (4) the error

seriously affects the fairness, integrity, or public reputation of

judicial proceedings. Id. at 735-36. 

Appellant first contends that, because the challenged

conditions of supervised release were not listed as mandatory or

discretionary conditions in the applicable Sentencing

Guidelines, the District Court’s imposition of the conditions sua

sponte violated Rule 32. Under Rule 32, a sentencing court

“must allow the parties’ attorneys to comment on the probation

officer’s determinations and other matters relating to an

appropriate sentence.” FED. R. CRIM. P. 32(i)(1)(C). Imposing

conditions that were never forecast to a defendant, appellant

argues, runs afoul of this requirement. We need not decide this

question, because even if it was error for the District Court to

impose the disputed conditions without giving advance notice to

Sullivan, it most certainly was not reversible error under the

plain error rule.

Sullivan’s argument that the District Court committed error

in failing to give him advance notice of the conditions of

supervised release rests on a purported analogy to Burns v.

United States, 501 U.S. 129 (1991). The Court in Burns held

that, “before a district court can depart upward on a ground not

identified as a ground for upward departure either in the

presentence report or in a prehearing submission by the

Government, Rule 32 requires that the district court give the

parties reasonable notice that it is contemplating such a ruling.
17

This notice must specifically identify the ground on which the

district court is contemplating an upward departure.” Id. at 138-

39. As the Court explained, “it makes no sense to impute to

Congress an intent that a defendant have the right to comment on

the appropriateness of a sua sponte departure but not the right to

be notified that the court is contemplating such a ruling.” Id. at

135-36. Importantly, the Court made it clear that, “[b]ecause the

question of the timing of the reasonable notice required by Rule

32 is not before us, we express no opinion on that issue. Rather,

we leave it to the lower courts, which, of course, remain free to

adopt appropriate procedures by local rule.” Id. at 139 n.6. It is

also significant that the Burns decision does not involve an

application of the plain error rule. Appellant apparently

recognizes that Burns does not control the disposition of this

case. Nonetheless, appellant invites us to broadly embrace the

logic of Burns in a case in which review is controlled by the

plain error standard. We decline the invitation.

 In support of his position, appellant invokes United States

v. Wise, 391 F.3d 1027 (9th Cir. 2004), in which the Ninth

Circuit reversed conditions of supervised release that restricted

the defendant’s contact with children (including her own), and

prohibited her from possessing pornography or sexually

stimulating material. Id. at 1030-31. The court ruled that notice

was a necessary antecedent to those restrictions, and that it is not

enough “first to impose the sentence, and then to invite counsel

to comment, at least where counsel objects as occurred here.”

Id. at 1033 (emphasis added). The instant case is quite different

from Wise, because the appellant here did not raise an objection

with the District Court. If appellant’s counsel had objected, he

could have sought more time to prepare an adequate response.

If that request had been denied, we would have been in a

position to decide whether to embrace the reasoning of Wise.

The Tenth Circuit has applied the principles of Burns in

connection with a matter involving supervised release in United
18

States v. Bartsma, 198 F.3d 1191, 1994 (10th Cir. 1999). The

defendant there pled guilty to possession of a firearm by a

convicted felon and was required, as a condition of supervised

release, to register as a sex offender because his criminal history,

among other things, reflected prior convictions for rape and

child molestation. Although the defendant did not object to this

condition until the case was heard on appeal, the court

nonetheless held that “the Burns rationale applies when a district

court is considering imposing a sex offender registration

requirement as a special condition of supervised release, and the

condition is not on its face related to the offense charged.” Id.

at 1199-1200. The Tenth Circuit evidently was concerned about

the glaring disjunction between the crime of conviction and the

nature of the conditions of release. Indeed, the court expressly

disclaimed any intent to “create a rule . . . requiring notice prior

to the imposition of every special condition of supervised

release,” restricting its holding to “the unique facts” of the case

it decided. Id. at 1200 n.7. The instant case does not involve a

disjunction between the crime and the conditions of release, so

Bartsma gives little support to appellant’s position. 

Finally, the Fifth Circuit has held that, under Rule 32 and

Burns, a defendant who is subject to sex-offender conditions is

entitled to receive notice in advance of sentencing that such

conditions are under consideration. United States v. Coenen,

135 F.3d 938, 943 (5th Cir. 1998). However, defense counsel in

Coenen objected when the sentence was pronounced and thus

preserved the issue for appeal. Id. at 941.

In this case, defense counsel’s failure to disclose any

misgivings about the absence of pre-sentencing notice forecloses

appellant’s claim of plain error. At least two other courts

reviewing similar challenges for plain error have rejected

attempts to apply Rule 32’s notice strictures in this context. See

United States v. Ristine, 335 F.3d 692, 694 (8th Cir. 2003);

United States v. Brown, 235 F.3d 2 (1st Cir. 2000). In our view,
19

when, as here, a defendant is provided with an opportunity to

articulate his position and then stands by as the court announces

its determination without interposing any objection, we can find

no threat to the integrity, fairness, or public reputation of

judicial proceedings justifying reversal on grounds of plain

error. 

Appellant urges us to review the substantive validity of the

terms of supervised release for abuse of discretion. He

acknowledges that, “[g]enerally, where a sentencing court

affords the defendant an opportunity to object to the special

conditions but the defendant remains silent, an appellate court

reviews for plain error under Fed. R. Crim. P. 52(b).”

Appellant’s Br. at 47. Appellant contends, however, that where

“a court imposes a special condition after resolving objections

to the PSR and after permitting defendant to make a statement,

the defendant has no meaningful opportunity to comment.” Id.

at 47-48. Appellant argues that, “[i]n that instance, the attack on

the special condition is not waived by the defendant’s failure to

assert it below, and the abuse of discretion standard applies.” Id.

at 48. We reject this argument. There is neither compelling

legal authority nor good reason for such a rule. The proper

standard of review here is plain error.

As noted above, once appellant was made aware of the

conditions that the District Court intended to impose, his counsel

was in a position to respond or to seek additional time in which

to formulate a response. Standing mute is not an option, not if

a litigant wishes to avoid a plain error standard of review on

appeal. This case does not involve a situation in which the

defendant was barred from speaking, objecting, or seeking more

time after the District Court judge made clear what he had in

mind with respect to conditions of supervised release. On this

record, we agree with the holding in Ristine, rejecting the

appellant’s claim there that “we should use an abuse of

discretion standard, and not plain error, because [the
20

defendant’s] failure to object stemmed from his lack of notice

that the challenged conditions would be imposed.” 335 F.3d at

694. The absence of an objection in this case means that we

review appellant’s claim for plain error, and we find none. 

 Normally, in reviewing conditions of supervised release

under the abuse of discretion standard, the appellate court

considers how the trial court measured the conditions imposed

against the statutorily enumerated sentencing goals. The

decision in United States v. Stanfield, 360 F.3d 1346 (D.C. Cir.

2004), describes what is entailed:

The imposition of a term of supervised release after

imprisonment is authorized by 18 U.S.C. § 3583.

Subsection (d) of that provision specifies that the court may

order any condition of supervised release “it considers to be

appropriate,” to the extent the condition is “reasonably

related” to the nature and circumstances of the offense and

the history and characteristics of the defendant, and to the

need to deter crime, to protect the public from further

crimes of the defendant, and to provide needed training,

medical care, or other correctional treatment to the

defendant. The condition also must entail “no greater

deprivation of liberty than is reasonably necessary” to

provide adequate deterrence, to protect the public, and to

meet the defendant’s vocational and medical needs.

Id. at 1352-53 (internal citations omitted). In applying these

standards, “sentencing judges are afforded wide discretion when

imposing terms and conditions of supervised release.” United

States v. Henkel, 358 F.3d 1013, 1014 (8th Cir. 2004). 

In this case, appellant challenges the conditions of

supervised release relating to the computer restrictions, the

prohibition against contact with minors, the restrictions on

sexually stimulating materials, and the ban on cameras and

video recording devices. None of these conditions is so plainly
21

out of sync with the statutory goals enumerated in § 3553(a) as

to warrant reversal under a plain error standard of review. 

First, in cases involving prosecution for “sex crimes” –

which is defined to include appellant’s offense – restrictions on

computer and Internet service are explicitly contemplated in the

2004 Sentencing Guidelines, which were in effect when

Sullivan’s sentence was determined. U.S.S.G. § 5D1.3(d)(7)

(2004). While that version of the Guidelines did not govern

appellant’s sentencing, it certainly suggests that computer

restrictions can be “reasonably related” to Sullivan’s offense

conduct. Moreover, no precedent in this circuit provided good

reason to deny the validity of such a restriction. Appellant

points to Stanfield, but that case does not cast doubt on the

sentence at issue here. Reviewing a broad and confusing

Internet restriction, we remanded the case “to allow the district

court to clarify the scope of the restriction.” 360 F.3d at 1354.

But in Stanfield, the defendant had filed a motion with the trial

court to clarify the restriction. Id. at 1351-52. The record in this

case, as we have shown, is quite different.

This circuit has yet to decide whether individuals convicted

of sex crimes may have their Internet usage conditioned on

Probation Office approval, and our sister circuits are divided on

the issue. Compare United States v. Rearden, 349 F.3d 608, 621

(9th Cir. 2003) (upholding Internet restriction), and United

States v. Zinn, 321 F.3d 1084, 1093 (11th Cir. 2003) (same),

with United States v. Crume, 422 F.3d 728, 733 (8th Cir. 2005)

(reversing Internet restriction), and United States v. Sofsky, 287

F.3d 122, 126 (2nd Cir. 2002) (same). This division among the

circuits, coupled with the indication in the Sentencing

Guidelines that some measure of Internet restriction is

appropriate in cases like this one, commands our conclusion that

the trial court committed no plain error.

Sullivan’s other challenges to the validity of his terms of

supervised release are also meritless. He points to no D.C.
22

Circuit authority that is even arguably inconsistent with any of

the remaining restrictions. We are thus satisfied that none of the

conditions that he challenges warrants reversal.

Nor do we find any merit in Sullivan’s terse contention that

his sentence is flawed because the District Court failed to

“substantiate” the terms of supervised release. As with the other

sentencing issues we have discussed, Sullivan and his counsel

sat in court while the judge pronounced the sentence, but they

never voiced an objection on the ground that the District Court

had failed to substantiate the conditions of release that were

imposed. And appellant has offered no viable basis for

ascribing plain error to the trial court on this issue. 

In the end, we can find no plain error with respect to

appellant’s belated objection to his sentencing conditions. There

is no indication here that appellant’s substantial rights have been

affected, see United States v. Baugham, ___ F.3d ___, 2006 WL

1506859, at *14 (D.C. Cir. 2006) (appellant must “‘make a

specific showing of prejudice,’ i.e., show that the error ‘affected

the outcome of the district court proceedings’”) (quoting Olano,

507 U.S. at 735)), because there is no showing here that the

judge would have imposed less onerous conditions even if

appellant had been afforded “advance” notice. Cf. United

States v. McKissic, 428 F.3d 719, 726 (7th Cir. 2005) (“It did

not ‘affect substantial rights’ because [appellant] can seek

modification of the conditions.”).

III. CONCLUSION

For the reasons given above, the judgment of the District

Court is hereby affirmed. 

So ordered.
SENTELLE, Circuit Judge, concurring: I join without

reservation the majority’s disposition of the sentencing issues as

set forth in Part II.B. of the majority opinion. I write separately

as to the merits disposition expressed in Part II.A., not because

I consider the majority’s opinion to be in error, but to express

my concern about what appears to me to be a confused area of

constitutional law. I wholly agree with appellant’s argument

that 

Title 18 U.S.C. § 2252A(a)(5)(B) is unconstitutional as

applied to Sullivan because the statute exceeds Congress’

authority pursuant to the Commerce Clause. In [United

States v. Lopez, 514 U.S. 549 (1995)], the Supreme Court

identified three areas that Congress could regulate pursuant

to the Commerce Clause: 1) the channels of interstate

commerce; 2) the instrumentalities of interstate commerce;

and 3) conduct that substantially affects interstate

commerce. 514 U.S. at 558-59. As case authority shows,

the conduct regulated here – possession – is a purely

intrastate activity, and therefore if it may be regulated at all,

it can be regulated only pursuant to the third Lopez category

. . . . Congress cannot regulate Sullivan’s conduct pursuant

to the third Lopez category because the conduct did not

substantially affect interstate commerce. 

Appellant’s Br. at 11-12. I would, therefore, vote to reverse

appellant’s conviction were it not for the intervening Supreme

Court decision in Gonzales v. Raich, 125 S. Ct. 2195 (2005).

With some reluctance, I join the majority’s decision that the

latest Supreme Court opinion compels affirmance of this

conviction. But my reluctance arises from the apparent

inconsistency of Raich with Lopez. 
2

1

This specific formulation of the inquiries necessary under

category (3) is drawn from United States v. Wall, 92 F.3d 1444, 1455-

As appellant’s argument properly points out, Lopez limited

the reach of the Commerce Clause to three categories. The first

two are plainly not implicated by appellant’s conduct.

Therefore, for the federal government to constitutionally

regulate that conduct, it must fall within the category of

“activities having a substantial relationship to interstate

commerce . . . i.e., those activities that substantially affect

interstate commerce . . . .” Lopez, 514 U.S. at 558-59 (citations

omitted). I am at a loss as to how purely intrastate possession of

a product that has previously traveled interstate substantially

affects interstate commerce. In analyzing the constitutionality

of regulation under category three, the Supreme Court in Lopez

undertook a further analysis which, in the absence of the Raich

opinion, would govern our adjudication of the question before

us. See id., 514 U.S. at 559-65. That analysis generally covers

the following three elements:

– the regulation controls a commercial activity, or an

activity necessary to the regulation of some commercial

activity;

– the statute includes a jurisdictional nexus requirement to

ensure that each regulated instance of the activity affects

interstate commerce; and

– the rationale offered to support the constitutionality of the

statute (i.e., statutory findings, legislative history,

arguments of counsel, or a reviewing court’s own

attribution of purposes to the statute being challenged) has

a logical stopping point, so that the rationale is not so broad

as to regulate on a similar basis all human endeavors,

especially those traditionally regulated by the states.1

 
3

56 (6th Cir. 1996) (Boggs, J., dissenting in part). However, each of

the points summarized in Judge Boggs’s formulation is taken directly

from Lopez, 514 U.S. at 559-65. See also Nat’l Ass’n of Home

Builders v. Babbitt, 130 F.3d 1041, 1064 (D.C. Cir. 1997) (Sentelle,

J., dissenting).

It is not at all plain to me that the present conduct falls within

any of the three analytical elements. First, it is not clear that

regulation of purely intrastate possession of a product is

necessary to the regulation of the commercial activity which

Congress seeks to regulate. Second, there is no relevant

jurisdictional section. Third, if the purely intrastate and

noncommercial possession of a product is regulable simply

because some of the product may have previously passed in

interstate commerce, then I see no stopping point. 

In the end, however, I cannot fault the majority’s

application of the later decision in Raich. I can, however, hope

that the High Court in some further decision gives us some

better method of reconciling its holdings on the extent of

congressional power under the Interstate Commerce Clause.