United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 26, 2013 Decided December 3, 2013 

No. 12-3069 

UNITED STATES OF AMERICA, 

APPELLEE

v. 

TOM LUSULI MALENYA, 

APPELLANT

Appeal from the United States District Court 

for the District of Columbia 

(No. 1:12-cr-00045-1) 

Jonathan S. Jeffress, Assistant Federal Public Defender 

argued the cause for appellant. With him on the briefs were 

A.J. Kramer, Federal Public Defender, and Rosanna M. 

Taormina, Assistant Federal Public Defender. Tony Axam Jr., 

Assistant Federal Public Defender, entered an appearance. 

James A. Ewing, Assistant U.S. Attorney, argued the 

cause for appellee. With him on the briefs were Ronald C. 

Machen Jr., U.S. Attorney, and Elizabeth Trosman and 

Chrisellen R. Kolb, Assistant U.S. Attorneys.
2

Before: BROWN and KAVANAUGH, Circuit Judges, and 

WILLIAMS, Senior Circuit Judge. 

Opinion for the Court filed by Senior Circuit Judge

WILLIAMS. 

Dissenting opinion filed by Circuit Judge KAVANAUGH. 

WILLIAMS, Senior Circuit Judge: Tom Lusuli Malenya, a 

41-year-old Army nurse, posted a personal ad on the “Men 

Seeking Men” section of Craigslist.com. D.R., who was 14 at 

the time, responded to Malenya’s ad by e-mail and claimed to 

be an 18-year-old “twink”—someone who appears to be 

younger but who is actually an adult male between the ages of 

18 and 23. Via text message, Malenya arranged for D.R. to 

come to his apartment, and the two had sex. A few weeks 

later, D.R.’s mother became concerned about the nature of 

D.R.’s relationship with Malenya and contacted the police. 

Using D.R.’s phone and pretending to be D.R., a detective 

sent a text message giving Malenya D.R.’s actual age and 

saying, “If your [sic] not cool its [sic] ok.” Malenya 

responded, via text message, “As long as you do not tell 

anyone is [sic] cool.” In another exchange of text messages 

the next day, Malenya arranged a second meeting at his 

apartment with D.R., and was arrested when a detective 

turned up instead of D.R.

In an information filed in the United States District Court 

for the District of Columbia, the United States charged 

Malenya with violations of 18 U.S.C. § 2422(b) and D.C. 

Code § 22-3010.02. Pursuant to a plea agreement, Malenya 

pled guilty to the D.C. Code violation. The court sentenced 

Malenya to a 36-month term of incarceration, suspended all 

but a year and a day, and imposed a 36-month term of 

supervised release subject to several special conditions. After 
3

sentencing, the government moved to dismiss the federal 

charge, and the court granted the motion. 

Malenya’s objections to the conditions of supervised 

release are the sole merits subjects before us. We first address 

a couple of preliminary issues. On the merits, we find that the 

district court’s own statements, and the sweeping nature of 

several of the conditions, demonstrate that the court failed to 

weigh the burden of the conditions on Malenya’s liberty 

against their likely effectiveness, as required by 18 U.S.C. 

§ 3583(d). We vacate the challenged conditions and remand 

the case to the district court to impose alternative conditions 

consistent with the governing statute. 

* * * 

Congress has granted the United States District Court for 

the District of Columbia jurisdiction over “[a]ny offense 

under any law applicable exclusively to the District of 

Columbia which offense is joined in the same information or 

indictment with any Federal offense.” District of Columbia 

Court Reorganization Act of 1970, Pub. L. No. 91-358, title I, 

§ 111, 84 Stat. 477, 478 (codified at D.C. Code § 11-502). 

The information here included both the federal offense and 

D.C. Code violation, so the district court had jurisdiction over 

the latter. 

Disposition of the federal offense after proper joinder 

does not withdraw power over the local offense, United States 

v. Kember, 685 F.2d 451, 454 (D.C. Cir. 1982), but “when 

federal charges have faded from the case prior to trial,” the 

court has discretion to divest itself of jurisdiction, reviewable 

for abuse of discretion, id. at 454, 455. Due to variations in 

procedure and substance between the two systems, some 

hesitance to retain jurisdiction over a properly joined D.C. 
4

Code offense is in order once the federal charges have “faded 

from the case.” Malenya, however, has not argued that the 

district court abused its discretion, and, because retention of a 

D.C. Code violation would not affect the district court’s 

power to hear the case even where retention of the case was 

an abuse of discretion, see id. at 454 (citing United States v. 

Kember, 648 F.2d 1354, 1359 (D.C. Cir. 1980) (per curiam)), 

we need not raise the issue on our own. 

In a footnote to its brief the government noted that § 11-

502(3) does not explicitly address the district court’s 

attachment of conditions to a term of supervised release. 

Govt. Br. 16-17 n.8. The government also pointed out that 

while in criminal cases in D.C. Superior Court the trial court 

sets the duration of any supervised release, it is the U.S. 

Parole Commission that imposes any conditions on that 

release. Compare D.C. Code § 24-403.01(b) (1-4) (duration), 

with D.C. Code § 24-403.01(b) (6) (conditions). We ordered 

the parties to brief the matter, and Malenya, while conceding 

that the district court could impose a sentence, including a 

term of supervised release, argued that its attachment of any 

conditions was error. 

Given § 11-502(3)’s explicit grant of “jurisdiction of . . . 

[a]ny offense under any law applicable exclusively to the 

District of Columbia” (so long as the joinder requirement has 

been met) (emphasis added), there seems little basis for any 

claim that the district court exceeded its jurisdiction in 

imposing conditions on supervised release. Accordingly, the 

issue is subject to normal rules of forfeiture. See United 

States v. Cotton, 535 U.S. 625 (2002). As Malenya didn’t 

raise the issue until prompted by the government’s brief and 

our order, our review is only for “plain error” under Rule 

52(b) of the Federal Rules of Criminal Procedure. 
5

The error, if any, falls far short of satisfying the 

component of plain error review requiring that the error have 

been “clear or obvious, rather than subject to reasonable 

dispute.” Puckett v. United States, 556 U.S. 129, 135 (2009). 

The propriety of the district court’s sentencing Malenya at all 

must be inferred from the general grant of jurisdiction in D.C. 

Code § 11-502(3), and, as defense counsel acknowledged, the 

same is true even for the court’s imposing a term of 

supervised release. Thus any claim that the court’s imposition 

of conditions on that supervised release is improper seems at 

least subject to reasonable dispute. Moreover, reading § 11-

502(3) to allow the district court to attach conditions has the 

appeal of avoiding the peculiar result that no one can impose 

conditions on the supervised release of a defendant sentenced 

under § 11-502(3). Finding the supposed error not to be clear 

enough to qualify as plain error, we will not review Malenya’s 

forfeited claim. 

* * * 

We start our review of the challenged conditions by 

setting them forth, as stated by the district court at sentencing, 

adding bracketed headings for convenience. 

[Computer/internet access.] [Y]ou shall not possess or 

use a computer or have access to any on-line service 

without the prior approval of the United States Probation 

Office; you shall identify all computer systems, Internet 

capable devices, and similar memory and electronic 

devices to which you have access, and allow installation 

of a computer and Internet-monitoring program. 

You are limited to possessing only one personal Internet 

capable device. Monitoring may include random 

examinations of computer systems, along with Internet, 
6

electronic, and media storage devices under your control. 

The computer system or device may be removed for a 

more thorough examination, if necessary. You shall be 

responsible for the costs of such monitoring services. 

[Computer pornography access.] You shall not use a 

computer, Internet capable device, or similar electronic 

device to access pornography of any kind. This includes 

but is not limited to accessing pornographic web sites, 

including web sites depicting images of nude adults or 

minors. You shall not use your computer to view 

pornography stored on related computer media such as 

CDs or DVDs, and shall not communicate via your 

computer with any individual or group who promotes the 

sexual abuse of children. 

[Preclusion of contact with minors.] You shall have no 

direct contact with minors under the age of 18 without the 

written approval of the probation officer, and shall refrain 

from entering into any area where children frequently 

congregate, including but not limited to schools, day care 

centers, theme parks, theatres, playgrounds, shopping 

malls, swimming areas, community recreation centers, 

and arcades. 

[Preclusion of contact with minors in employment or 

volunteer work.] You shall not be employed in any 

capacity that may cause you to come into direct contact 

with children, except under circumstances approved in 

advance by the supervisory probation officer. You shall 

not participate in any volunteer activity that may cause 

you to come in direct contact with children, except under 

those circumstance [sic] approved in advance by your 

probation officer. 

. . . 
7

[Required sex offender treatment.] You shall participate 

in the program of sex offender assessment and treatment 

as directed by the probation officer until such time as you 

are released from the program. This assessment and 

treatment may include physiological testing, such as 

polygraph, to assist in planning, case monitoring, and 

supervision. At the direction of the probation officer, you 

shall pay for all or a portion of any treatment program. 

Any refusal to submit to such assessment or tests as 

scheduled is a violation of the conditions of release. 

You shall waive your right of confidentiality in treatment, 

and sign any necessary releases for any records imposed 

as a consequence of this judgment to allow the 

supervisory probation officer to review your course of 

treatment and progress with the treatment providers. 

[Physiological testing condition.] You shall submit to 

penile plethysmograph testing as directed by the United 

States Probation Office as part of your sex offender 

therapeutic treatment. The costs of that testing are to be 

paid by you as directed by the probation office. 

[Limits on places of residence, employment and 

volunteering.] You shall have all residences, 

employment, and volunteer work preapproved by the U.S. 

Probation Office. Your residence may not be in close 

proximity to locations frequented by children such as 

schools, playgrounds, public pools, and video galleries. 

You shall neither reside in a residence where minor 

children also reside, nor shall you work or volunteer for 

any business or organization that provides services or 

employs persons under 18 years of age without the 

permission of the U.S. Probation Office. 
8

. . . . [Romantic relationship limit.] You shall notify the 

U.S. Probation Office when you establish a significant 

romantic relationship, and shall then inform the other 

party of your prior criminal history concerning your sex 

offenses. You understand that you must notify the U.S. 

Probation Office of that significant other’s address, age, 

and where the individual may be contacted. 

The government argues that plain error review should 

apply to two of the conditions—the computer pornography 

prohibition and the restriction on employment or volunteer 

work involving minors. This is incorrect. The Presentence 

Investigation Report (“PSR”) identified both of these as 

suggested conditions for supervised release. Defense counsel 

responded with a brief that quoted § 3583(d)’s insistence that 

any imposed condition “involves no greater deprivation of 

liberty than is reasonably necessary” for the various 

sentencing goals set out in cross-referenced provisions. 

Counsel then asserted that all of the conditions set out in the 

PSR, except two not at issue in this appeal, were not 

“reasonably related to this case and all involve a greater 

deprivation of liberty than is reasonably necessary.” 

This objection both identified the conditions to which 

Malenya objected and the grounds on which he objected. Cf. 

United States v. Love, 593 F.3d 1, 11 (D.C. Cir. 2010). 

Malenya thus gave the court ample opportunity to avoid error 

by considering the mandate of § 3583(d). See Fed. R. Crim. 

P. 51(b). Our review of the challenged conditions is for abuse 

of discretion. Love, 593 F.3d at 11. In such a review we ask 

“whether the district court considered the prescribed factors 

and clearly articulated their effect on its decision.” United 

States v. Wright, 6 F.3d 811, 813 (D.C. Cir. 1993). Failure to 

apply the correct legal standard itself constitutes an abuse of 

discretion. Brayton v. Office of the U.S. Trade 

Representative, 641 F.3d 521, 524 (D.C. Cir. 2011). 
9

By statute the district court may impose conditions of 

supervised release (other than certain mandatory ones) if the 

conditions are “reasonably related” to factors set forth in 18 

U.S.C. § 3553 and “involve[] no greater deprivation of liberty 

than is reasonably necessary for the purposes” identified in 

that section. 18 U.S.C. § 3583(d) (1), (2). 

The statute identifies the permissible purposes by means 

of complex cross-references, but the Sentencing Commission 

has restated those purposes by providing that the conditions 

must be 

reasonably related to (A) the nature and circumstances of 

the offense and the history and characteristics of the 

defendant; (B) the need for the sentence imposed to 

afford adequate deterrence to criminal conduct; (C) the 

need to protect the public from further crimes of the 

defendant; and (D) the need to provide the defendant with 

needed educational or vocational training, medical care, 

or other correctional treatment in the most effective 

manner. 

U.S. Sentencing Guidelines Manual § 5D1.3(b). The 

Guidelines of course also repeat the statute’s requirement that 

conditions must involve “no greater deprivation of liberty than 

is reasonably necessary.” Id. The court therefore must not 

only find the condition to be reasonably related to Congress’s 

goals as related to the defendant but must weigh the 

consequences for the defendant’s liberty against any likely 

achievement of the statutory purposes. Though “reasonably 

necessary” may be quite vague in many legal contexts, see 

Dissent at 2, here it is tethered to deprivation of liberty in 

terms that in effect require the court to choose the least 

restrictive alternative. Section 3583(d)(2) is thus, as the 

Seventh Circuit put it, a “narrow tailoring requirement.” 

United States v. Holm, 326 F.3d 872, 877 (7th Cir. 2003); see 
10

also United States v. Perazza-Mercado, 553 F.3d 65, 73 (1st 

Cir. 2009); United States v. Voelker, 489 F.3d 139, 144-45 (3d 

Cir. 2007). 

The court’s characterization of the conditions imposed 

was quite inconsistent with the statutorily required 

consideration of Malenya’s liberty. First, it justified them as 

“the standard conditions that are imposed in these cases,” thus 

wrapping the case before it into a cluster of “these cases”—

cases whose distinguishing features it did not delineate. 

Further, the court explained that the conditions were 

reasonably necessary to “minimize the risk” of re-offense, a 

formulation that ignores the balancing of goals against the 

defendant’s liberty, as required by § 3583(d)(2). Nor was the 

implicit rejection of balancing in this language corrected or 

offset by any indication of balancing elsewhere in the court’s 

discussion. 

The limit on computer/internet access illustrates the 

failure to consider the consequences of the conditions. Its key 

phrase says that “you [Malenya] shall not possess or use a 

computer or have access to any on-line service without the 

prior approval of the United States Probation Office . . . and 

[shall] allow installation of a computer and Internetmonitoring program.” 

We have often noted the ubiquity of computers in modern 

society and their essentialness for myriad types of 

employment. See, e.g., United States v. Russell, 600 F.3d 

631, 637 (D.C. Cir. 2010). Given the need to use a computer 

to apply for a job at McDonald’s, id., it seems likely that fullbore enforcement would shrink Malenya’s employment 

opportunities to the vanishing point. And even if he secured 

probation office approval for use of the computer systems in 

his chosen vocation of medicine, the monitoring requirement 

appears inconsistent with medical privacy requirements. 
11

Quite apart from employment, the internet provides, as we 

noted in another decision, “the easiest way to pay . . . bills, 

check the weather, stay on top of world events, and keep in 

touch with friends.” Love, 593 F.3d at 12. A ban on 

computer and internet usage, qualified only by the possibility 

of probation office approval, is obviously a significant 

deprivation of liberty. 

Implicitly the government suggests that this significant 

deprivation of liberty is no more than is “reasonably 

necessary” for the purposes referred to in § 3583(d)(2). The 

government contends that the deprivation is reasonably 

necessary because but for the internet, Malenya would not 

have met his victim. But this alone cannot be enough to 

justify such a deprivation of liberty. If it were, district courts 

could impose bans on reading newspapers if a defendant met 

his victim through the wanted ads, or ban the wearing of 

eyeglasses if a defendant first saw the victim through 

corrective lenses. Because the net is so novel, powerful and 

protean, it may seem to have a kind of magic. But pen, paper 

and literacy (or at least their widespread availability) once 

enjoyed all three characteristics, yet we would laugh at 

criminologists who advocated banning access for prisoners 

who had served their term. 

When challenged as to its but-for causation argument, the 

government argued that Malenya’s use of the internet to seek 

a sexual relationship with an adult demonstrated that he might 

use the internet to seek sex with children. But this rationale is 

similarly unavailing. We explained in United States v. 

Burroughs, 613 F.3d 233, 243 (D.C. Cir. 2010), that the mere 

possibility that “the Internet can be used to arrange sexual 

encounters with minors” is inadequate to justify an internet 

restriction. It is unclear if any computer or internet restriction 

could be justified in Malenya’s case, but the condition in its 

current form is surely a greater deprivation of liberty than is 
12

reasonably necessary to achieve the goals referenced in § 

3583(d). Cf. United States v. McLaurin, 731 F.3d 258, 262 

(2d Cir. 2013). 

The pornography restriction also illustrates the district 

court’s failure to consider the appropriateness of the probation 

office’s proposed conditions. The district court may have 

been within reason to restrict a child sex offender’s access to 

child pornography, which is of course already illegal, see, e.g., 

18 U.S.C. § 2252A. But the record contains no evidence 

either that Malenya indulged in adult or child pornography, or 

that viewing adult pornography would increase the likelihood 

that he would again indulge in sex with non-adults—which, 

after all, he did not seek out in this case. With no evidence of 

a need for the restriction, it appears to be a more significant 

deprivation of liberty than is reasonably necessary. See 

Perazza-Mercado, 553 F.3d at 75-76, 78 (vacating an adult 

pornography restriction as plain error when the district court 

gave no explanation for the condition and no discernible 

evidence in the record justified the ban). 

Finally, the vague language and vast scope of the contact 

and residential conditions demonstrate the district court’s 

failure to consider the effect of the imposed conditions on 

Malenya’s liberty. The restrictions not only prevent Malenya 

from intentionally interacting directly with children, which 

could potentially be justified, but also prevent him from 

participating in many activities of everyday American life, 

activities that Malenya is not shown to have abused. For 

instance, a reasonable reading of the contact restriction would 

prevent Malenya from entering a shopping mall or going to a 

movie, even one that children cannot attend, for three years. 

Moreover, use of vague language like “close proximity” and 

“frequently congregate” gives the probation office the power 

to prevent Malenya from living almost anywhere and going to 

almost any place. 
13

This significant deprivation of liberty might be justified 

in a case where an offender has frequented such locations for 

the purpose of preying on children, or has shown a 

pathological attraction to children. Here there is no evidence 

of such behavior. In fact, the evidence that Malenya is 

attracted to children per se is ambiguous and seems to place 

him in a category fitting neither the government’s nor 

defendant’s characterization. While he never (so far as 

appears) sought a sexual encounter with anyone underage, he 

did persist in his plans here even after learning that D.R. was 

only 14; neither his preferences nor his ethics called a halt. 

We pause to consider the thought that the district court 

may have substituted stringency of conditions for time in 

prison. See Dissent at 5-6. Such a trade-off is obviously 

conceivable. But in addressing the character of conditions, 

§ 3583(d)(2) introduces the goal of minimizing the 

deprivation of liberty and thus the narrow tailoring 

requirement considered earlier, making the execution of such 

a trade-off distinctly awkward. Further, in placing a 

defendant on supervised release, the court has necessarily 

determined that the goals of sentencing would at that point be 

better served by putting the defendant at liberty (albeit a 

constrained liberty), a shift that inherently seems to increase 

the weight due to rehabilitative goals over those of retribution, 

deterrence and incapacitation. Whatever the merits of the 

view that a court may trade off the duration of prison and 

supervised release, see United States v. Albertson, 645 F.3d 

191, 198 (3d Cir. 2011), trading off duration of sentence for 

stringency of conditions may prove to be a difficult practical 

exercise. As the district court here gave no hint of making 

such a trade-off, we need not consider whether it would have 

complied with the statute. 

Since the district court did not apply the correct standard 

for imposing conditions of supervised release, we vacate all 
14

the challenged conditions and remand to the district court to 

impose special conditions of supervised release in compliance 

with § 3583(d). 

 So ordered. 
KAVANAUGH, Circuit Judge, dissenting: Malenya, then a 

41-year-old man, attempted to have sex with someone he 

knew to be 14. Malenya’s attempt was thwarted only because 

the 14-year-old’s mother fortuitously intercepted explicit text 

messages Malenya sent to the 14-year-old. For his conduct, 

Malenya ultimately pled guilty and received a relatively short 

prison sentence of one year and a day in prison, followed by 

three years of supervised release with certain special 

conditions attached. On appeal, Malenya objects to the 

special conditions imposed by the District Court and asks that 

they be vacated. The majority opinion vacates the special 

conditions. With one exception, I would affirm the special 

conditions. I therefore respectfully dissent. 

I 

Under Section 3583 of Title 18, a district court at 

sentencing may impose a term of supervised release to follow 

a term of imprisonment. By statute, a term of supervised 

release comes with certain conditions attached; some are 

mandatory and some are discretionary. If the defendant 

violates a condition, the defendant’s term of supervised 

release may be revoked and the defendant sent back to prison. 

The mandatory conditions of supervised release include, 

for example, a requirement that the defendant not commit 

another crime or unlawfully possess a controlled substance 

during the term of supervised release. See 18 U.S.C. 

§ 3583(d). 

By statute, the court also has discretion to impose 

additional supervised release conditions, which are commonly 

referred to as “special conditions,” provided that three 

statutory requirements are met. First, special conditions must 

be “reasonably related” to some of the general sentencing 

factors identified in Section 3553(a), including “the nature 

and circumstances of the offense,” “the history and 
2 

characteristics of the defendant,” deterrence, protection of the 

public, and providing needed correctional treatment to the 

defendant. Id. § 3583(d)(1) (citing id. § 3553(a)(1)-(2)). 

Second, special conditions must entail “no greater deprivation 

of liberty than is reasonably necessary” for certain purposes 

set forth in Section 3553(a), including deterrence, protection 

of the public, and providing treatment to the defendant. Id.

§ 3583(d)(2) (citing id. § 3553(a)(2)). And third, special 

conditions must be “consistent with any pertinent policy 

statements issued by the Sentencing Commission.” Id.

§ 3583(d)(3). The first two requirements – the “reasonably 

related” and “reasonably necessary” requirements – are the 

focus of this appeal. 

Section 3583’s “reasonably related” and “reasonably 

necessary” standards are obviously quite vague. The vague 

statutory text means that district courts possess significant 

discretion to balance the competing sentencing considerations 

listed in Section 3553(a) (and cross-referenced by Section 

3583) when imposing special conditions of supervised 

release. The significant discretion in turn means that we can 

expect variety. Different “district courts may have distinct 

sentencing philosophies.” United States v. Gardellini, 545 

F.3d 1089, 1093 (D.C. Cir. 2008). And even apart from such 

philosophical differences, the special conditions that appear 

“reasonably related” and “reasonably necessary” to one 

district court judge in a particular case may appear unduly 

restrictive to another district court judge. 

On appeal, we review the district court’s selection of 

special conditions of supervised release only for an abuse of 

discretion. See United States v. Love, 593 F.3d 1, 11 (D.C. 

Cir. 2010). Appellate deference is thus stacked upon wide 

district court discretion. As appellate judges, it is not our role 

to impose the mix of special conditions we would have 
3 

selected as district court judges in the first instance. Rather, 

our more modest task is simply to ensure that the district 

court has not jumped the rails bounding its wide discretion. 

II 

In this case, in considering whether the District Court 

abused its discretion in finding the special conditions 

“reasonably related” to Section 3553(a)’s sentencing goals 

and not more restrictive than “reasonably necessary,” I begin 

with four overarching considerations that inform my 

evaluation of the specific special conditions.1

 1

 Malenya here challenges the District Court’s imposition of 

special conditions of supervised release that require that he: (1) 

“not possess or use a computer or have access to any on-line 

service without the prior approval of the United States Probation 

Office”; (2) “not use a computer, Internet capable device, or similar 

electronic device to access pornography of any kind”; (3) “have no 

direct contact with minors under the age of 18 without the written 

approval of the probation officer”; (4) “refrain from entering into 

any area where children frequently congregate, including but not 

limited to schools, day care centers, theme parks, theatres, 

playgrounds, shopping malls, swimming areas, community 

recreation centers, and arcades”; (5) “not be employed in any 

capacity that may cause [him] to come into direct contact with 

children, except under circumstances approved in advance by the 

supervisory probation officer” and not “work or volunteer for any 

business or organization that provides services or employs persons 

under 18 years of age without the permission of the U.S. Probation 

Office”; (6) “participate in [a] program of sex offender assessment 

and treatment as directed by the probation officer”; (7) “submit to 

penile plethysmograph testing as directed by the United States 

Probation Office”; (8) not reside “in close proximity to locations 

frequented by children such as schools, playgrounds, public pools, 

and video galleries”; (9) not reside “where minor children also 
4 

First, any analysis of the special conditions must begin 

with the one critical fact in this case. Malenya, then a 41-

year-old man, targeted and attempted to have sex with 

someone he knew to be 14 years old. This is a contact case. 

In other words, Malenya was doing far more than watching 

pornography. In what seems to be an overly generous 

interpretation, the majority opinion terms the evidence 

“ambiguous” as to whether Malenya was attracted to children 

per se. Maj. Op. at 12. But we know that Malenya (then 41 

years old) actively sought to have sex with someone he knew 

to be 14 years old. That is not ambiguous. In light of 

Malenya’s admitted effort to sexually prey on a 14-year-old, 

it was entirely rational for the District Court to impose 

various special conditions of supervised release in order to try 

to prevent Malenya from sexually exploiting future under-age 

victims. 

Second, the special conditions imposed on Malenya are 

common for sex offenders, particularly for those such as 

Malenya who have engaged in or sought to engage in actual 

sexual activities with individuals they knew to be under age. 

See generally U.S. SENTENCING COMMISSION, FEDERAL 

OFFENDERS SENTENCED TO SUPERVISED RELEASE 20-27 

(2010). That these kinds of special conditions are commonly 

imposed by district court judges helps demonstrate the 

reasonableness of the special conditions, in the same way that 

a sentence’s being within the Sentencing Guidelines helps 

demonstrate the reasonableness of the sentence. Cf. United 

States v. Dorcely, 454 F.3d 366, 376 (D.C. Cir. 2006) 

 

reside . . . without the permission of the U.S. Probation Office”; 

and (10) “notify the U.S. Probation Office when [he] establish[es] a 

significant romantic relationship” and “inform the other party of 

[his] prior criminal history.” Tr. Sentencing Hearing at 42-45, Aug. 

20, 2012.
5 

(appellate presumption of reasonableness for withinGuidelines sentence). 

Third, in thinking about the overall reasonableness of the 

special conditions of supervised release in this case, we 

cannot lose sight of the sentence as a whole. As the crossrelationship between Sections 3583 and 3553 indicates, 

Congress considered imprisonment and supervised release, 

including attendant conditions, to be elements of a single 

sentencing package. Here, Malenya was sentenced to only 

one year and a day in prison, a fairly short prison term for a 

41-year-old who attempted to have sex with someone he 

knew to be 14 years old. After all, the statutory maximum 

sentence Malenya could have received under the D.C. Code 

provision to which he pled guilty was three years’ 

imprisonment. See D.C. CODE §§ 22-3010.02(b), 24-403.01. 

And the federal offense for which Malenya was originally 

indicted, attempted enticement of a minor in violation of 18 

U.S.C. § 2422(b), carried a federal mandatory minimum of 10 

years’ imprisonment. But for the Government’s exercise of 

prosecutorial discretion, Malenya would have been subject to 

that 10-year mandatory minimum sentence for his conduct. 

The relative brevity of Malenya’s term of imprisonment 

certainly bears on any assessment of the severity of the 

special conditions. After all, living in freedom subject to a 

few special conditions is – at least up to a point, depending on 

the nature of the special conditions – a far lesser restraint on a 

defendant’s liberty than living in prison. Moreover, when as 

here a district court selects a shorter term of imprisonment, it 

may correspondingly want to impose more restrictive special 

conditions of supervised release – or a lengthier term of 

supervised release – in order to achieve Section 3553(a)’s 

goals of deterrence and protection of the public. See 18 

U.S.C. § 3553(a)(2)(B)-(C); United States v. Albertson, 645 
6 

F.3d 191, 198 (3d Cir. 2011) (because of the “interplay 

between prison time and the term of supervised release,” “a 

district court may find it proper to impose a longer term of 

supervised release to follow a relatively shorter term of 

imprisonment”). 

Fourth, the special conditions in Malenya’s case apply 

for only three years. Contrast that limited term with the 

lengthy terms of supervised release in some of our recent 

cases involving sex offenders. See, e.g., United States v. 

Accardi, 669 F.3d 340, 343-46 (D.C. Cir. 2012) (40 years); 

United States v. Love, 593 F.3d 1, 5 (D.C. Cir. 2010) (life 

term). The relatively short duration of Malenya’s term of 

supervised release diminishes the overall impact of the special 

conditions on Malenya’s liberty, and further shows that the 

District Court was careful to impose special conditions that 

were not more restrictive than “reasonably necessary.” 

III 

With those four overarching considerations in mind, I 

turn now to specific analysis of the disputed special 

conditions. Applying our deferential standard of review, I 

would uphold all but one of the special conditions. 

One group of disputed special conditions limits 

Malenya’s ability to undertake certain activities: owning or 

using a computer, accessing the Internet, contacting minors 

directly, and working, volunteering, or residing with minors. 

Importantly, however, Malenya is not banned from those 

activities. Rather, Malenya must simply obtain the approval 

of the United States Probation Office before engaging in any 

of those activities. 

Malenya’s probation officer will presumably exercise his 

or her discretion in an appropriate manner befitting Malenya’s 
7 

circumstances. As this Court has emphasized in a prior case, 

we can “assume the Probation Office will reasonably exercise 

its discretion” to lift a prohibition when that prohibition “no 

longer serves the purposes of [the defendant’s] supervised 

release.” United States v. Love, 593 F.3d 1, 12 (D.C. Cir. 

2010). If the probation officer acts arbitrarily, such as in 

policing Malenya’s use of a computer, Malenya may petition 

the district court to modify the special conditions and cabin 

the officer’s discretion. See 18 U.S.C. § 3583(e)(2); United 

States v. Legg, 713 F.3d 1129, 1134 (D.C. Cir. 2013); United 

States v. Padilla, 415 F.3d 211, 223 (1st Cir. 2005) (en banc). 

With that point in mind, I do not believe that the District 

Court abused its discretion in imposing those special 

conditions. 

Relatedly, Malenya contends that some of the terms in 

the special conditions are impermissibly vague, including the 

terms “close proximity” and “significant romantic 

relationship.” But again, Malenya may consult with his 

probation officer or, as appropriate, the district court 

regarding the proper construction of those terms should 

Malenya disagree with how they are applied in practice by the 

probation officer. See United States v. Forde, 664 F.3d 1219, 

1224-25 (8th Cir. 2012). 

Another special condition forbids Malenya from using a 

computer to view pornography. But that prohibition is hardly 

onerous, and it is justified for an admitted sex offender by the 

apparent “connection” that courts have recognized “between 

pornography and sex crimes.” United States v. Laureys, 653 

F.3d 27, 35 (D.C. Cir. 2011) (citing United States v. 

Sebastian, 612 F.3d 47, 52 (1st Cir. 2010); Amatel v. Reno, 

156 F.3d 192, 199-201 (D.C. Cir. 1998)). 
8 

An additional special condition requires Malenya to 

enroll in a sex offender treatment program. But that 

requirement is manifestly appropriate for a contact sex 

offender such as Malenya. Sex offender treatment programs 

can reduce the risk of recidivism and allow clinical therapists 

to supervise sex offenders during their reintegration into 

society. Cf. McKune v. Lile, 536 U.S. 24, 33 (2002) (plurality 

opinion) (“Therapists and correctional officers widely agree 

that clinical rehabilitative programs can enable sex offenders 

to manage their impulses and in this way reduce 

recidivism.”). 

Another special condition prohibits Malenya from 

“entering into any area where children frequently 

congregate.” Tr. Sentencing Hearing at 43, Aug. 20, 2012. 

But that special condition certainly makes sense for a 

defendant such as Malenya who has already tried to have sex 

with someone he knew to be 14 years old. Malenya expresses 

concern that this special condition would forbid many day-today activities. But even if the condition were considered 

problematic in the abstract, sensibly interpreted it applies only 

to entering areas such as schools and children’s playgrounds 

where children are commonly present in large numbers. It 

cannot reasonably and should not be read to proscribe casual 

or chance encounters or entering areas such as theaters or 

shopping malls unless those venues are, for example, a 

children’s theater or a mall catering specifically to children. 

See United States v. Burroughs, 613 F.3d 233, 246 (D.C. Cir. 

2010); see also Arciniega v. Freeman, 404 U.S. 4, 4 (1971). 

Again, Malenya may consult with his probation officer if he 

has questions. 

To reiterate, moreover, my analysis of all of the special 

conditions is buttressed by the surrounding circumstances 

here: Malenya tried to have sex with a 14-year-old, the 
9 

special conditions here are common (and thus have been 

deemed reasonable by many district court judges) for sex 

offenders, Malenya received a relatively short prison 

sentence, and the length of the term of supervised release is 

also relatively short. Therefore, I would uphold all of the 

special conditions of supervised release, with one exception. 

I would vacate the special condition that authorizes penile 

plethysmograph testing. That procedure implicates 

significant liberty interests and would require, at a minimum, 

a more substantial justification than other typical conditions 

of supervised release. See United States v. McLaurin, 731 

F.3d 258 (2d Cir. 2013). Such a justification is not present on 

this record. In light of the record in this case and the 

significant liberty interests infringed by this invasive 

procedure, I would vacate that one special condition. 

IV 

In vacating the special conditions, the majority opinion, 

among other things, says that the District Court did not 

sufficiently explain its reasoning for the special conditions. 

But in imposing the sentence, including the special conditions 

of supervised release, the District Court carefully and 

painstakingly explained the Section 3553(a) sentencing 

factors and how the competing considerations played out in 

this case. Contrary to the suggestion in the majority opinion, 

moreover, the District Court did not ignore mitigating factors. 

The District Court stressed Malenya’s remorse, military 

service, and lack of criminal history, and emphasized that this 

was a “difficult case.” See Tr. Sentencing Hearing at 37-41, 

Aug. 20, 2012. A review of the sentencing transcript shows 

that the District Court grappled with and plainly understood 

the relevant sentencing factors. As our precedents have 

repeatedly said, although the district court must consider the 

Section 3553(a) factors, it need not expressly address all of 
10 

them at the sentencing hearing. See, e.g., United States v. 

Brinson-Scott, 714 F.3d 616, 626 (D.C. Cir. 2013) (“[T]he 

district court’s explanation did not invoke any of the section 

3553(a) factors by name. But we do not require that it do so. 

Sentencing, after all, is not a game of Simon Says.”); United 

States v. Simpson, 430 F.3d 1177, 1186 (D.C. Cir. 2005). As 

I read the record, the District Court did its job here and 

committed no procedural error. 

* * * 

A 41-year-old man sought to have sex with someone he 

knew to be 14 years old. That is a serious crime. With the 

one exception described above, I would uphold the special 

conditions imposed by the District Court. I respectfully 

dissent.