UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

DONALD LEE COHEE, 

 Defendant - Appellant. 

No. 17-3099 

(D.C. No. 5:13-CR-40101-DDC-1) 

(D. Kan.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before PHILLIPS, McKAY, and McHUGH, Circuit Judges. 

_________________________________ 

 Mr. Donald Lee Cohee appeals a special condition of supervised release that 

prevents him from having unsupervised contact with his minor child. Because he 

failed to object to this condition in the district court, we apply plain error review. 

Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we affirm 

Mr. Cohee’s sentence. 

 *

 After examining the briefs and appellate record, this panel has determined 

unanimously to honor the parties’ request for a decision on the briefs without oral 

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 

submitted without oral argument. This order and judgment is not binding precedent, 

except under the doctrines of law of the case, res judicata, and collateral estoppel. It 

may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 

and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

November 22, 2017

Elisabeth A. Shumaker 

Clerk of Court
2 

I. Background 

Mr. Cohee pleaded guilty in 2014 to failing to register as a sex offender, in 

violation of 18 U.S.C. § 2250(a). The district court sentenced him to 24 months’ 

imprisonment and five years’ supervised release. The special conditions of his 

supervised release included a prohibition against “unsupervised contact with any 

minor.” R., Vol. 1 at 19, ¶ 6. The court imposed this condition over Mr. Cohee’s 

objection, but he did not appeal his sentence. 

The district court revoked Mr. Cohee’s supervised release in November 2016 

after he failed to comply with a special condition requiring that he successfully 

participate in a sex offender treatment program. The court sentenced him to 

11 months’ imprisonment, followed by three years’ supervised release. It once again 

imposed a special condition limiting Mr. Cohee’s contact with minors, specifically: 

The defendant shall have no contact with any person under the age of 18 

except: (1) in the presence of an adult who is aware of the nature of the 

defendant’s background and offense(s), and who has been approved by the 

U.S. Probation Office; (2) in the course of normal commercial business; or 

(3) in other cases of unintentional and incidental contact. 

Id. at 29, ¶ 6. Mr. Cohee did not object to this condition or appeal his sentence. 

In January 2017, Mr. Cohee was released to supervision again. He violated a 

condition of his release within two months, resulting in another revocation. The 

district court imposed another 11-month prison sentence, as well as a three-year term 

of supervised release. In deciding on this sentence, the court stated it had considered 

the nature and circumstances of Mr. Cohee’s violation, his characteristics, and the 
3 

Sentencing Commission’s policy statements. It also concluded that the three-year 

term of supervised release was necessary to protect the public. 

The district court indicated it would once again impose mandatory and special 

conditions of supervised release, specifically stating that it would continue to include 

a condition forbidding Mr. Cohee from having contact with minors, with the previous 

exceptions including when “in the presence of an adult who is informed and aware of 

the nature of [his] background and offenses and who the probation office has 

approved.” R., Vol. 2 at 29. The court found that “this condition of supervision is 

warranted to prevent further sex crimes based on [Mr. Cohee’s] criminal history.” Id. 

In response to the district court’s tentative ruling, Mr. Cohee stated that he 

“object[ed] to all of it.” Id. at 31. He then proceeded to raise two specific objections 

unrelated to the special condition limiting his unsupervised contact with minors. He 

concluded by stating, “I guess just generally speaking I would object to the 

sentence.” Id. at 32. 

II. Discussion 

 Mr. Cohee appeals the special condition of supervised release limiting his 

contact with minors to the extent there is no exception allowing him to have 

unsupervised contact with his four-year-old daughter. He contends that, without that 

exception, the condition violates 18 U.S.C. § 3583(d)(2) and his constitutional right 

to familial association. 

 “When the defendant objects to a special condition of supervised release at the 

time it is announced, this Court reviews for abuse of discretion.” United States v. 
4 

Mike, 632 F.3d 686, 691 (10th Cir. 2011). But if the defendant fails to object, we 

review only for plain error. Id.

A. Mr. Cohee did not Object to the Special Condition of Supervised 

Release in the District Court 

 The government argues that Mr. Cohee’s general objection to the entirety of 

his sentence was insufficient to preserve the specific challenge to a supervised 

release condition that he raises on appeal. “An issue is preserved for appeal if a party 

alerts the district court to the issue and seeks a ruling.” Somerlott v. Cherokee Nation 

Distribs., Inc., 686 F.3d 1144, 1150 (10th Cir. 2012) (internal quotation marks 

omitted). 

In federal criminal cases, Rule 51(b) tells parties how to preserve claims of 

error: ‘by informing the court—when the court ruling or order is made or 

sought—of the action the party wishes the court to take, or the party’s 

objection to the court’s action and the grounds for that objection.’ Failure 

to abide by this contemporaneous-objection rule ordinarily precludes the 

raising on appeal of the unpreserved claim of trial error. 

Puckett v. United States, 556 U.S. 129, 135 (2009) (quoting Fed. R. Crim. P. 51(b)). 

“If an error is not properly preserved, appellate-court authority to remedy the error 

(by reversing the judgment, for example, or ordering a new trial) is strictly 

circumscribed.” Id. at 134. Moreover, a defendant’s objection must be sufficiently 

specific to alert the district court to the issue eventually raised on appeal; otherwise 

“the district court is deprived of the opportunity to correct its action in the first 

instance.” United States v. Winder, 557 F.3d 1129, 1136 (10th Cir. 2009). “[A]n 

objection must be definite enough to indicate to the district court the precise ground 

for a party’s complaint.” Id. (internal quotation marks omitted). 
5 

 Here, Mr. Cohee did not specifically object to the special condition limiting 

his unsupervised contact with minors. In particular, he did not object that the 

condition violates § 3583(d)(2) or his constitutional right to familial association. 

Mr. Cohee argues that his general objection to the entirety of his sentence was 

sufficient to preserve his appeal issue when combined with his expressions of 

dissatisfaction during the sentencing hearing regarding the legal impediments 

preventing him from seeing his daughter. 

We disagree. Although Mr. Cohee did mention, during the sentencing hearing, 

that both his federal sentence and a state-court order precluded unsupervised contact 

with his daughter, he did so in the context of arguing for a non-custody sentence. See

R., Vol. 2 at 14-20. He asked the district court to order his placement in a facility 

where he could be evaluated for treatment of his depression, which he claimed was 

caused by “the fact he has never been able to see his daughter.” Id. at 16. But he 

told the court that he was “not asking the court for any kind of remedy in that.” Id.1

 

Rather, he asked “to be able to have somebody address . . . his depression to help him 

get past that particular problem and to get on with his life.” Id. at 17; see also id. at 

23-24 (reiterating that his depression stems from not seeing his daughter and asking 

for mental health treatment rather than a prison sentence). 

 1

 The government argues based on this statement that Mr. Cohee waived any 

right to have unsupervised contact with his daughter during his supervised release 

and his right to challenge the special condition on appeal. While the statement is 

relevant to our analysis whether Mr. Cohee objected to the condition, we do not find 

it sufficient to constitute a clear waiver of either right. 
6 

Mr. Cohee’s general objection at sentencing, along with his comments about 

his inability to see his daughter, his resulting depression, and his request to avoid 

another prison sentence, failed to alert the district court to the issue he raises on 

appeal. The special condition limiting his contact with minors does not prevent

Mr. Cohee from seeing his daughter while on supervised release; it permits him to do 

so if supervised as specified in the condition. Thus, when the court responded to 

Mr. Cohee’s arguments in favor of placement in a mental health facility rather than 

prison, it pointed to two other issues that have kept him from seeing his daughter: 

his “inability or unwillingness to complete [his] term of supervised release,” resulting 

in his return to prison, and “whatever restriction a state court apparently has imposed 

on [his ability to see his daughter],” over which the court said it had no control. Id.

at 25. 

Ultimately, after the district court specifically stated it would re-impose the 

same special condition prohibiting unsupervised contact with all minors, Mr. Cohee 

raised only a general objection to his entire sentence and unrelated specific 

objections. He failed to raise any specific objection to the special condition he 

challenges on appeal, much less an objection to its lack of an exception allowing 

unsupervised visitation with his minor daughter. Mr. Cohee did not alert the district 

court to the issue he raises on appeal and seek a ruling on it; consequently, the court 

had no opportunity to correct the alleged error in the first instance. Winder, 557 F.3d 

at 1136. 
7 

B. Mr. Cohee Fails to Show Plain Error2

“A plain error that affects substantial rights may be considered even though it 

was not brought to the court’s attention.” Fed. R. Crim. P. 52(b). To establish plain 

error, the defendant “must demonstrate that there is (1) an error; (2) that is plain; 

(3) that affects substantial rights; and (4) that seriously affects the fairness, integrity, 

or public reputation of judicial proceedings.” United States v. Mann, 786 F.3d 1244, 

1249 (10th Cir. 2015) (internal quotation marks omitted). “Meeting all four prongs is 

difficult, as it should be.” Puckett, 556 U.S. at 135 (internal quotation marks 

omitted). “We will find plain error only when an error is particularly egregious, and 

the failure to remand for correction would produce a miscarriage of justice.” Mann, 

786 F.3d at 1249 (internal quotation marks omitted). 

“District courts have broad discretion to prescribe special conditions of 

release,” subject to the three statutory requirements in 18 U.S.C. § 3583(d). Mike, 

632 F.3d at 692. First, special conditions “must be reasonably related to at least one 

of following: the nature and circumstances of the offense, the defendant’s history 

and characteristics, the deterrence of criminal conduct, the protection of the public 

from further crimes of the defendant, and the defendant’s educational, vocational, 

medical, or other correctional needs.” Id. They must also “involve no greater 

 2

 The government argues that Mr. Cohee has waived plain-error review by not 

arguing for its application in his opening brief. We do not ordinarily consider issues 

not adequately addressed in an opening brief. See United States v. Courtney, 

816 F.3d 681, 684 (10th Cir.), cert. denied, 137 S. Ct. 238 (2016). But we have 

exercised our discretion to do so where a criminal defendant argued for plain error in 

his reply brief. See id. We choose to do so here. 
8 

deprivation of liberty than is reasonably necessary to achieve the purpose of deterring 

criminal activity, protecting the public, and promoting the defendant’s rehabilitation” 

and “be consistent with any pertinent policy statements issued by the Sentencing 

Commission.” Id.

Mr. Cohee first argues that the district court plainly erred in depriving him of 

unsupervised contact with his minor daughter under our reasoning in United States v. 

Burns, 775 F.3d 1221 (10th Cir. 2014). But we held in Burns that the court plainly 

erred when it failed to make any findings in support of a special condition of 

supervised release. See id. at 1223 (holding that “[t]he district court failed to make 

the required findings” and “[o]ur precedents unambiguously require supporting 

findings when courts impose special conditions”). Here, Mr. Cohee acknowledges 

that the district did make a finding. Therefore, contrary to his assertion, this case is 

not “just like” Burns. Aplt. Reply Br. at 17. 

Mr. Cohee next argues that no evidence in the record justifies a special 

condition infringing on his familial rights, and in particular, that his previous sex 

offense convictions are too remote in time to justify the condition the district court 

imposed. For this proposition he relies on United States v. Bear, 769 F.3d 1221, 

1225-26, 1229 (10th Cir. 2014), in which the defendant argued that restrictions on his 

contact with children were improper because they prevented him from being alone 

with his own children. We explained: “When a defendant has committed a sex 

offense against children or other vulnerable victims, general restrictions on contact 

with children ordinarily do not involve a greater deprivation of liberty than 
9 

reasonably necessary. But restrictions on a defendant’s contact with his own children 

are subject to stricter scrutiny.” Id. at 1229 (citation omitted). We held that special 

conditions can interfere with a parent’s “fundamental liberty interest in maintaining 

his familial relationship with his children. . . . only in compelling circumstances.” Id.

(brackets and internal quotation marks omitted). 

In Bear, we vacated a special condition of supervised release that was 

substantially similar to the condition Mr. Cohee challenges on appeal. See id. at 

1225, 1229. We held that the “record [did] not provide compelling evidence that 

could support restrictions on [the defendant’s] contact with his own children.” Id. at 

1229. More specifically, we found there was no evidence in the years since the 

defendant’s sex offense conviction of any new sexual offense, a propensity to commit 

such offenses, a proclivity toward sexual violence, continuing deviant sexual 

tendencies, or fantasies about sex with children. Id. Nor was there evidence that the 

defendant had “otherwise displayed a danger to his own three children.” Id. We 

concluded that, under these circumstances, the defendant’s 12-year-old sex offense 

conviction was “simply too remote in time, standing alone, to provide compelling 

evidence justifying infringement upon [the defendant’s] right of familial association.” 

Id.

Mr. Cohee argues that, as in Bear, there is insufficient evidence in the record 

to support a special condition that infringes on his familial rights. He notes that his 

most recent sex offense conviction was in 1997, twenty years before his latest 

revocation of supervised release. And he contends there is no other evidence that he 
10 

has a present propensity to commit sexual offenses or a proclivity towards sexual 

violence. He maintains further that “there is no evidence that he is in any way a risk 

to his own young daughter, whom he has never met.” Aplt. Opening Br. at 14. 

 The government responds that, unlike in Bear, Mr. Cohee’s previous sex 

offenses are not the only evidence in the record supporting the special condition 

requiring supervised contact with his minor child. It points to other evidence from 

which the district court could have concluded that Mr. Cohee “has a continuing 

propensity for recidivism, a continuing propensity for violence against women, an 

inability to succeed in completing terms of probation or supervised release, and 

mental and physical health issues, which make him a potential danger to others, 

including his daughter, who is a stranger to him.” Aplee. Br. at 23-24; see also id. at 

28-30 (citing supporting evidence). This evidence includes Mr. Cohee’s recent 

disorderly conduct conviction, in 2013, for making phone calls threatening the life of 

the mother of his minor daughter. This conviction also resulted in a state no-contact 

order with the child’s mother. 

Although confronted with this evidence, Mr. Cohee addresses none of it and 

makes no effort to demonstrate that it is irrelevant or fails to involve compelling 

circumstances sufficient to support the special condition of supervised release 

limiting his contact with minors, including his own daughter. We will not make 
11 

these arguments for him. Consequently, Mr. Cohee fails to show, under Bear, that 

the district court plainly erred in imposing this special condition.3

III. Conclusion 

 The judgment of the district court is affirmed. 

Entered for the Court 

Monroe G. McKay 

Circuit Judge 

 3

 Mr. Cohee appears to contend in his reply brief that the district court’s 

findings supporting the special condition, which referenced only his remote criminal 

history, were insufficient. He did not make this argument in his opening brief. 

Although we choose to apply plain error review despite Mr. Cohee’s failure to 

address that standard of review in his opening brief, we decline to reach this 

argument of error raised only in his reply. In any event, even if the district court 

plainly erred in the extent of its findings, Mr. Cohee fails to satisfy the third prong of 

plain error review by showing that the error affected his substantial rights. See 

Burns, 775 F.3d at 1224. He has not demonstrated that, but for the district court’s 

error, there is a reasonable probability that the court would not have restricted his 

contact with his daughter. See id. (holding, based on lack of evidence, that the 

district court probably would have rejected a limitation on the defendant’s contact 

with his own child).