FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

No. 07-50293

v. 

OPINION

FERNANDO ESPARZA,

Defendant-Appellant. 

Appeal from the United States District Court

for the Central District of California

Virginia A. Phillips, District Judge, Presiding

Argued and Submitted

November 20, 2008—Pasadena, California

Filed January 20, 2009

Before: Susan P. Graber and Richard R. Clifton,

Circuit Judges, and David G. Trager,* District Judge.

Per Curiam Opinion

*The Honorable David G. Trager, Senior United States District Judge

for the Eastern District of New York, sitting by designation. 

769
COUNSEL

James H. Locklin, Deputy Federal Public Defender, Los

Angeles, California, for the defendant-appellant. 

Robert Charles Stacy, II, Assistant U.S. Attorney, Riverside,

California, for the plaintiff-appellee.

OPINION

PER CURIAM: 

Defendant Fernando Esparza posted child pornography

online. The FBI executed a search warrant at his residence

and discovered hundreds of such images. Defendant pleaded

guilty to distribution of child pornography in violation of 18

U.S.C. § 2252A(a)(2)(A). The district court imposed a prison

sentence of 235 months and ordered lifetime supervised

release with certain conditions. Defendant timely appeals his

sentence. In this opinion, we consider only Condition 5 of the

terms of supervised release.1 We review for abuse of discretion, United States v. Weber, 451 F.3d 552, 557 (9th Cir.

2006), and affirm in part, vacate in part, and remand. 

1We dispose of the remaining issues in a memorandum filed this date.

UNITED STATES v. ESPARZA 771
Condition 5 provides: 

The defendant shall participate in a psychological/

psychiatric counseling and/or a sex offender treatment program, which may include inpatient treatment, as approved and directed by the Probation

Officer. The defendant shall abide by all rules,

requirements, and conditions, of such program,

including submission to risk assessment evaluation(s), and physiological testing, such as polygraph

and Abel testing,[2] and shall take all prescribed

medication[.] 

Defendant argues that the district court failed to make the requisite findings at sentencing to justify two aspects of Condition 5: (1) the requirement that he take all prescribed

medication and (2) the requirement of physiological testing.

Defendant also argues that a third aspect of Condition 5—the

potential for inpatient treatment—involves an improper delegation of judicial authority. 

A. Requisite Findings at Sentencing

[1] “[A] district court is not generally required to articulate

on the record at sentencing the reasons for imposing each condition” of supervised release.3 Weber, 451 F.3d at 559 (internal quotation marks omitted). If a condition of supervised

release “involves an especially significant liberty interest,”

2

“Abel testing, [a] procedure used in sexual offender treatment programs, involves presenting individuals with non-erotic pictures of children

and adults and determining sexual interest by measuring how long a person spends viewing each picture.” Weber, 451 F.3d at 555 n.3 (internal

quotation marks omitted). 

3As we have observed previously, our rule differs from the rule in some

other circuits, which requires specific findings for each condition of supervised release. See Weber, 451 F.3d at 560 n.10 (citing United States v.

Loy, 191 F.3d 360, 371 (3d Cir.1999), and United States v. Edgin, 92 F.3d

1044, 1049 (10th Cir. 1996)). 

772 UNITED STATES v. ESPARZA
however, the district court must make certain “specific findings” justifying imposition of the supervised-release condition. Id. at 560. For example, a condition requiring a

defendant to take “psychotropic medication” involves an

especially significant liberty interest and, therefore, requires

the district court to make certain findings, as described in

United States v. Williams, 356 F.3d 1045, 1052-57 (9th Cir.

2004). But a condition requiring a defendant to take other

types of medications does not necessarily involve an especially significant liberty interest and may not require specific

findings. United States v. Cope, 527 F.3d 944, 955 (9th Cir.),

cert. denied, 129 S. Ct. 321 (2008). 

[2] Here, Condition 5 requires Defendant to “take all prescribed medication.” On its face, that condition encompasses

both categories of medication—those that require specific

findings and those that do not. In Cope and United States v.

Daniels, 541 F.3d 915 (9th Cir. 2008), we addressed the same

issue concerning an identically worded condition of supervised release and held that, in the absence of specific findings

by the district court, we would construe such a condition “ ‘as

limited to those medications that do not implicate a particularly significant liberty interest of the defendant.’ ” Daniels,

541 F.3d at 926 (quoting Cope, 527 F.3d at 955). As the government concedes, those cases control here. Because the district court did not have the benefit of Cope when it sentenced

Defendant, we also “remand this condition to the district court

so that it can make necessary findings with respect to the

requirement that [he] take all prescribed medication,” if the

court chooses to require Defendant to take medications implicating a particularly significant liberty interest. Id.

[3] A similar analysis applies to the condition that Defendant submit to “physiological testing, such as polygraph and

Abel testing.” A district court may require some forms of

physiological testing, including polygraph and Abel testing,

without making specific findings. Weber, 451 F.3d at 567-70.

Other forms of physiological testing, though, may not be

UNITED STATES v. ESPARZA 773
imposed without additional findings. Id. As with the medication requirement, the physiological testing requirement

encompasses both categories of testing—those that require

specific findings and those that do not. We therefore apply the

same reasoning and reach the same result. We hold that, in the

absence of specific findings, Condition 5 necessarily must be

understood as limited to those forms of physiological testing

that do not implicate a particularly significant liberty interest.

And, as in Cope and Daniels, the district court may, on

remand, make the necessary supporting findings insofar as

Condition 5 may require Defendant to undergo testing that

implicates a particularly significant liberty interest. 

B. Delegation and Inpatient Treatment

[4] With respect to the inpatient treatment aspect of Condition 5, Defendant argues that the district court impermissibly

delegated judicial authority to the probation officer. 

[W]here the [district] court makes the determination

of whether a defendant must abide by a condition,

and how (or, when the condition involves a specific

act such as drug testing, how many times) a defendant will be subjected to the condition, it is permissible to delegate to the probation officer the details of

where and when the condition will be satisfied. 

United States v. Stephens, 424 F.3d 876, 880 (9th Cir. 2005).

But “a probation officer may not decide the nature or extent

of the punishment imposed upon a probationer.” Id. at 881

(internal quotation marks omitted). 

[5] Here, Condition 5 requires Defendant to participate in

a counseling or sex offender treatment program, “which may

include inpatient treatment, as approved and directed by the

Probation Officer.” (Emphasis added.)4 Thus, although the

4We have held that a similar condition is not overbroad, Cope, 527 F.3d

at 956, but we have not addressed whether such a condition is an improper

774 UNITED STATES v. ESPARZA
court clearly mandated participation in a treatment program of

some sort, the decision whether Defendant would receive

inpatient or outpatient treatment is left to the discretion of the

probation officer. Defendant argues that inpatient treatment is

a condition different in kind from an outpatient program, such

that the probation officer would be deciding “the nature or

extent of the punishment” to be imposed. Stephens, 424 F.3d

at 881. The government counters that the district court

required psychological treatment and that the inpatient/

outpatient format is simply a decision about “where and when

the condition will be satisfied.” Id. at 880. 

[6] We are persuaded by Defendant’s argument. In terms of

the liberty interest at stake, confinement to a mental health

facility is far more restrictive than having to attend therapy

sessions, even daily. Our conclusion in this regard is bolstered

by Congress’ recognition of procedural and substantive protections that apply to civil commitment to inpatient facilities.

E.g., 18 U.S.C. § 4248. Accordingly, we hold that, on remand,

the district court must strike from Condition 5 the phrase

“which may include inpatient treatment.”

5

CONDITION 5 AFFIRMED in part, VACATED in part,

and REMANDED. 

delegation of authority, see United States v. Stoterau, 524 F.3d 988, 1003

n.7 (9th Cir. 2008) (noting the issue, but declining to reach it), cert.

denied, ___ U.S.L.W. ___ (U.S. Jan. 12, 2009) (No. 08-7566). 

5We hold only that a district court may not delegate to the probation

officer the decision whether a defendant must be committed to inpatient

treatment. We express no view on the question whether a district court

could order mandatory inpatient treatment as a condition of lifetime supervised release. 

UNITED STATES v. ESPARZA 775