FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 11-30256 Plaintiff-Appellee,

D.C. No.

v.  3:10-cr-00240-MO-1

DAVID LOUIS JOHNSON,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the District of Oregon

Michael W. Mosman, District Judge, Presiding

Argued and Submitted

October 11, 2012—Portland, Oregon

Filed October 30, 2012

Before: Barry G. Silverman, Richard R. Clifton, and

N. Randy Smith, Circuit Judges.

Opinion by Judge Clifton

13031
COUNSEL

C. Renée Manes, Assistant Federal Public Defender, Portland,

Oregon, for defendant-appellant David Johnson.

13032 UNITED STATES v. JOHNSON
Kelly A. Zusman (argued) and Johnathan S. Haub, Assistant

U.S. Attorneys, Portland, Oregon, for plaintiff-appellee

United States.

OPINION

CLIFTON, Circuit Judge:

This appeal presents the question of whether a district court

may require a sexual offender assessment—not treatment, just

an assessment—as a condition of supervised release when the

defendant has two decades-old prior sexual offense convictions involving weapons, when the current offense also

involves a weapon, and when the defendant’s prior completion of sex offender treatment cannot be confirmed. We conclude that it may require such an assessment and affirm the

condition imposed in this case.

I. Background

Defendant David Louis Johnson pled guilty to knowing and

unlawful possession of a firearm in violation of 18 U.S.C.

§§ 922(g)(1) and 924(a)(2). The district court sentenced him

to five years of supervised release subject to special conditions. At the suggestion of the Probation Office, the district

court later modified the sentence to require that Johnson

undergo a sexual offender assessment as an additional condition of his supervised release. 

Johnson had two previous sexual offense convictions. In

1980, Johnson raped a nineteen year-old woman twice at

knife point. He was sentenced to nine years in prison for rape,

sodomy, kidnaping, and false imprisonment. In 1990, Johnson

raped a fourteen year-old girl at gunpoint. He was sentenced

to thirteen years in prison for rape. Though Johnson claims

that he underwent sexual offense treatment in the past, the

Probation Office was unable to verify this claim.

UNITED STATES v. JOHNSON 13033
The district court acknowledged that Johnson’s sexual

offense convictions were dated, specifically referencing our

decision in United States v. T.M., 330 F.3d 1235 (9th Cir.

2003). But it also found that a sexual offender assessment was

a “very minor restraint on liberty.” The district court decided

that its “obligation for the safety of the public, as well as the

rehabilitation of this defendant” justified the sexual offender

assessment condition.

Before the district court Johnson argued that if the sexual

offender assessment included a polygraph exam, then the

assessment would violate his Fifth and Sixth Amendment

rights. Without concluding that, the district court ordered that

the sexual offender assessment exclude a polygraph exam.

Johnson did not express any further concerns about the constitutionality of the sexual offender assessment at the district

court.

Johnson now challenges the reasonableness of the sexual

offender assessment condition. He also argues that the sexual

offender assessment violates his Fifth Amendment right

against self-incrimination.

II. Reasonableness of the condition

[1] We review the district court’s decision to impose a

condition of supervised release for an abuse of discretion.

United States v. Baker, 658 F.3d 1050, 1053 (9th Cir. 2011),

overruled on other grounds by United States v. King, 687

F.3d 1189 (9th Cir. 2012). A district court may impose a condition of supervised release if it “involves no greater deprivation of liberty than is reasonably necessary” to punish, deter,

protect the public from or rehabilitate the defendant. 18

U.S.C. § 3583(d)(2). The condition should also “reasonably

relate[ ]” to “the nature and circumstances of the offense and

the history and characteristics of the defendant.” 18 U.S.C.

§ 3583(d)(1); id. § 3553 (a)(1). These factors are a “guide,”

13034 UNITED STATES v. JOHNSON
not “a checklist of requisites.” United States v. Johnson, 998

F.2d 696, 698 (9th Cir. 1993). 

[2] The district court did not abuse its discretion in ordering the sexual offender assessment condition. Johnson was

twice convicted of serious and violent sexual offenses. In

addition, Johnson’s current offense involved possession of a

gun, the same sort of weapon he used as a sexual offender.

Johnson’s history as a sexual offender, old as it may be, justified the district court’s decision to order a sexual offender

assessment. After the district court receives the results of the

assessment, it will be better able to determine if additional

conditions are necessary to protect the public and rehabilitate

Johnson.

Johnson argues that United States v. T.M., 330 F.3d 1235

(9th Cir. 2003), curtails the district court’s discretion to order

sexual offender assessments on the basis of stale convictions.

Johnson reads T.M. too broadly. In T.M., we held that the

defendant’s twenty-one year-old conviction and forty-one

year-old sexual offense charge did not justify several stringent

conditions of supervised release, including the requirement

that he participate in a sexual offender treatment program and

submit to necessary testing. Id. at 1240. Sexual offender treatment programs can be very significant restraints on liberty.

See United States v. Weber, 451 F.3d 552, 563 (9th Cir.

2006). Johnson must undergo only an assessment, which is a

much less significant restraint. Further, in T.M., the record

included detailed information regarding the defendant’s progress in his sexual offense treatment. T.M., 330 F.3d at 1241

n.5. The record in this case does not, and Johnson’s assessment will enable the district court to make a more informed

decision. We have consistently noted that district courts have

“wide latitude” to craft conditions of supervised release.

Weber, 451 F.3d at 557. T.M. does not narrow a district

court’s discretion so greatly that the age of a defendant’s convictions forecloses its consideration of other statutory factors.

UNITED STATES v. JOHNSON 13035
III. Fifth Amendment claim

Johnson’s constitutional challenge to the sexual offender

assessment with a polygraph exam is not ripe. The district

court excluded a polygraph exam from the assessment. As a

result, a polygraph exam does not present “actual or imminent” harm to Johnson. See United States v. Antelope, 395

F.3d 1128, 1132 (9th Cir. 2005). Johnson did not challenge

the constitutionality of the condition as ordered at the district

court, so we do not address it here. See United States v. Reyes,

8 F.3d 1379, 1390 (9th Cir. 1993).

AFFIRMED.

13036 UNITED STATES v. JOHNSON