1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

__________________________________

)

UNITED STATES OF AMERICA )

)

v. ) Criminal No. 04-128-08 (RMC)

)

JAMES D. HILL, )

also known as FOXY, )

)

Defendant. )

_________________________________ )

MEMORANDUM OPINION

In 2005, Defendant James D. Hill pled guilty to conspiracy to distribute and 

possess with intent to distribute one kilogram or more of a mixture or substance containing 

phencyclidine (PCP), ecstasy, and fifty grams or more of cocaine base. The Court imposed a 

sentence of 108 months of incarceration, which Mr. Hill has now served, to be followed by five 

years of supervised release. Following Mr. Hill’s release to the community, the United States 

Probation Office petitioned the Court to amend his conditions of supervised release to require a 

sex offender treatment assessment and possible treatment based on Mr. Hill’s 2002 conviction 

for attempted second degree child sexual abuse. Mr. Hill vigorously opposes the proposed 

amendment and, in turn, asks the Court to vacate the “no contact with minors” supervised release 

condition imposed at sentencing. Both requests are fully briefed. For the following reasons, the 

USPO petition will be denied and Mr. Hill’s motion will be granted only in part. 
2

I. FACTS

Along with six co-defendants,1 Mr. Hill entered a “wired” plea agreement with 

the government pursuant to Fed. R. Crim. P. 11(c)(1)(C)2 under which each defendant pled guilty 

to conspiracy to distribute and possess with intent to distribute one kilogram or more of a 

mixture or substance containing phencyclidine (PCP), ecstasy, and fifty grams or more of 

cocaine base, in violation of 21 U.S.C. § 846 and 21 U.S.C. §§ 841(b)(1)(B)(iii), (b)(1)(B)(iv), 

and (b)(1)(C) as then effective. See Judgment [Dkt. 525] at 1.

Mr. Hill’s sentencing was held on April 4, 2006. The Presentence Investigation 

Report (“PSR”) prepared for the Court by the United States Probation Office (“USPO”) stated

that, in 2002, Mr. Hill was convicted in the District of Columbia Superior Court of attempted 

second degree child sexual abuse3 and sentenced to 180 days of incarceration. That conviction 

 1

 The charges to which Mr. Hill pled guilty arose from his involvement with “a massive drug 

ring” in Northeast Washington, D.C. known as the M Street Crew. See generally United States 

v. Wilson, 605 F.3d 985, 1011 (D.C. Cir. 2010).

2

 Rule 11(c)(1)(C) authorizes plea agreements under which the parties “agree that a specific 

sentence or sentencing range is the appropriate disposition of the case, or that a particular 

provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not 

apply.” The parties’ “recommendation or request binds the court once the court accepts the plea 

agreement.” Id.

3

 The record reflects confusion about the precise charges of which Mr. Hill was convicted in 

2002. Mr. Hill’s own sentencing memorandum stated that Mr. Hill “was convicted of . . . First 

Degree Child Sex Abuse and a related Destruction of Property and Assault.” See Def. 

Sentencing Mem. [Dkt. 513] at 3. The instant probation petition states that Mr. Hill was 

convicted of “first degree child sexual abuse and attempted second degree child sexual abuse.” 

See Probation Pet. [Dkt. 1200] at 1. Mr. Hill’s present counsel, Jonathan Jeffress of the Federal 

Public Defender’s Office, notes that “the PSR . . . clearly state[d] [that] Mr. Hill was only 

convicted of Attempted Second Degree Child Sexual Abuse; the First Degree Child Sexual 

Abuse charge was dismissed.” Opp. Probation Pet. [Dkt. 1206] at 3 (citing PSR ¶ 42). The 

Probation Officer later confirmed that Mr. Hill was convicted of attempted second degree child 

sexual abuse and not first degree child sex abuse. The publicly available records of Superior 

Court reflect Mr. Hill’s guilty pleas in two separate 2002 cases. The Court infers that the 

attempted second degree child sexual abuse was the sole count of conviction in case 2002 FEL 

3500 and the simple assault and destruction of property count were the two counts of conviction 
3

arose from an incident in which “Mr. Hill, who was 20 years old at the time, became involved 

with a young woman who represented herself to be 16 or 17 years old, but was in fact 14 years 

old.”4 Def. Opp. Probation Pet. (“Def. Opp.”) [Dkt. 1206] at 2. Mr. Hill’s 2005 sentencing 

memorandum stated further that “[h]e was arrested for the [a]buse charges and following said 

arrest, went to her home, knocked down the door and punched her for lying to him about her 

age.” Def. Sentencing Mem. [Dkt. 513] at 3. As a result of his Superior Court conviction, Mr. 

Hill was required to register as a sex offender for ten years under District of Columbia law, but 

no conditions were imposed that limited his contact with children. Def. Opp. at 2; see also D.C. 

Code § 22-4001 et seq.

This Court imposed a sentence of 108 months’ incarceration with credit for time 

served, to be followed by five years of supervised release. Judgment at 2–3. The Court imposed 

two special conditions of supervised release in addition to the standard conditions:

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 off [sic] 18 without 

the expressed and written approval of the minor’s legal guardian 

and the written permission of the Court. 

The defendant shall comply with the Sex Offender Registration 

requirements in any state or jurisdiction where he resides, is 

employed, carries on a [sic] avocation, or is a student.

Id. at 3. Mr. Hill did not appeal his conviction or sentence.5 

 

in case 2002 FEL 5030. The Superior Court imposed a sentence of 180 days’ incarceration in 

each case, to run concurrently. 

4

 Neither the USPO nor the government has challenged Mr. Hill’s characterization of the facts of 

the incident.

5 While incarcerated, Mr. Hill filed a pro se motion, Dkt. 1050, for a reduction in his sentence 

due to the 2007 retroactive crack cocaine amendments, see U.S.S.G., App. C, Ams. 706, 711 & 
4

On January 24, 2013, Mr. Hill was released from incarceration, beginning a term 

of supervised release that will expire on January 24, 2018. The USPO petitioned the Court on 

February 15, 2013, for a hearing and modification to Mr. Hill’s conditions of supervised release. 

Specifically, the USPO stated:

Based on Mr. Hill’s prior conviction for . . . Attempted Second 

Degree Child Sexual Abuse, the probation officer believes the 

conditions of supervised release should be modified as follows:

Treatment Assessment: You shall participate in and successfully 

complete a program of sex offender assessment and treatment, as 

directed by the probation officer. This assessment and treatment 

may include physiological testing such as a polygraph or 

plethysmograph testing 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. To allow the supervising probation officer to 

review your course of treatment and progress with the treatment 

provider(s), you shall waive your right of confidentiality in 

treatment and sign any necessary releases for access to any records 

imposed as a consequence of this judgment.

Probation Pet. [Dkt. 1200] (“Petition”) at 1–2. The Petition noted that the government did not 

oppose the request but that Mr. Hill did. Id. at 2. 

The parties convened on March 22, 2013, to address the Petition. Mr. Hill was 

present, as were an AUSA, the petitioning Probation Officer, and Mr. Hill’s newly-appointed 

lawyer from the Office of the Federal Public Defender. Counsel for Mr. Hill and Mr. Hill 

himself voiced strong opposition to the Petition. Addressing the Court on his own, Mr. Hill

stated that he found the potential use of a penile plethysmograph6 particularly repugnant. The 

 

713, in June 2008. The Court denied the motion because the quantity of phencyclidine, not crack 

cocaine, was dispositive in determining Mr. Hill’s sentencing guidelines. See Order [Dkt. 1079] 

at 1–2.

6

 “Penile plethysmograph testing is a procedure that ‘involves placing a pressure-sensitive device 

around a man’s penis, presenting him with an array of sexually stimulating images, and 
5

Probation Officer noted that an alternative to penile plethysmography was available but

continued to request an amendment to Mr. Hill’s conditions of supervised release. Upon 

counsel’s request, the Court did not rule immediately and permitted the parties to file additional 

briefs. Throughout their briefs, the parties refer to the Petition as encompassing a Sex Offender 

Treatment Assessment—for short, “SOTA.”

The Court now has before it two briefs from Mr. Hill’s counsel, two briefs from 

counsel for the government, and a submission from the USPO (“USPO Submission”).

7

 Mr. Hill 

continues to oppose the Petition and, in addition, asks the Court to vacate the “no contact with 

children” supervised release condition imposed at sentencing. See Def. Opp.; see also Def. 

Reply [Dkt. 1217]. The government asks the Court to grant the Petition and continue the other 

terms of release without change. See Gov’t Mem. [Dkt. 1210] & Gov’t Supp. Mem. [Dkt. 1215]. 

II. LEGAL STANDARD 

18 U.S.C. § 3583(d) governs the imposition of conditions of supervised release at 

sentencing. In relevant part, that section provides:

The court may order, as a further condition of supervised release, 

to the extent that such condition—

(1) is reasonably related to the factors set forth in 

[18 U.S.C.] section 3553(a)(1), (a)(2)(B), (a)(2)(C), 

and (a)(2)(D);

 

determining his level of sexual attraction by measuring minute changes in his erectile responses.’ 

. . . [The procedure] has become routine in the treatment of sexual offenders and is often imposed 

as a condition of supervised release.” United States v. Weber, 451 F.3d 552, 554 (9th Cir. 2006) 

(quoting Jason R. Odeshoo, Of Penology and Perversity: The Use of Penile Plethysmography on 

Convicted Child Sex Offenders, 14 Temp. Pol. & Civ. Rts. L. Rev. 1, 2 (2004)). 

7

 The Court shared the USPO’s Submission with the parties. There being no objection, the 

accompanying Order directs the Clerk to file the USPO Submission on the docket under seal. 
6

(2) involves no greater deprivation of liberty than is 

reasonably necessary for the purposes set forth in 

section 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D); and

(3) is consistent with any pertinent policy 

statements issued by the Sentencing Commission 

pursuant to 28 U.S.C. 994(a);

any condition set forth as a discretionary condition of probation in 

section 3563(b) and any other condition it considers to be 

appropriate . . . .

18 U.S.C. § 3583(d). 

18 U.S.C. § 3583(e)(2) and Federal Rule of Criminal Procedure 32.1(c) govern 

modification of supervised release conditions. 

The court may, after considering the factors set forth in section 

3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and 

(a)(7) . . . modify, reduce, or enlarge the conditions of supervised 

release, at any time prior to the expiration or termination of the 

term of supervised release, pursuant to the provisions of the 

Federal Rules of Criminal Procedure relating to the modification of 

probation and the provisions applicable to the initial setting of the 

terms and conditions of post-release supervision[.]

18 U.S.C. § 3583(e)(2). Federal Rule of Criminal Procedure 32.1(c) requires that the Court hold 

a hearing prior to modification, unless the hearing is waived or the modification is favorable to 

the offender in supervision. 

Effectively, then, the substantive guide for considering changes in terms of 

supervision is a subset of the factors governing sentencing at 18 U.S.C. § 3553(a):

Although Congress required certain findings prior to termination or 

revocation of supervised release, it did not require such findings 

prior to modification. The only statutory requirements for 

modification are that the district court consider the listed § 3553(a) 

factors, follow the procedure outlined in Fed. R. Crim. P. 32.1, and 

ensure that the modified conditions are consistent with the 

requirements applicable to all conditions of supervised release.
7

See United States v. Begay, 631 F.3d 1168, 1172 (10th Cir. 2011). Those factors made relevant 

for modification of supervised release conditions by 18 U.S.C. § 3583(e)(2) are:

(1) the nature and circumstances of the offense and the history and 

characteristics of the defendant;

(2) the need for the sentence imposed . . . (B) to afford adequate 

deterrence to criminal conduct; (C) to protect the public from 

further crimes of the defendant; and (D) to provide the defendant 

with needed educational or vocational training, medical care, or 

other correctional treatment in the most effective manner;

. . .

(4) the kinds of sentence and the sentencing range established for--

(A) the applicable category of offense committed by the applicable 

category of defendant as set forth in the [United States Sentencing 

Guidelines] . . .

(5) any pertinent policy statement [issued by the United States 

Sentencing Commission] . . .

(6) the need to avoid unwarranted sentence disparities among 

defendants with similar records who have been found guilty of 

similar conduct; and

(7) the need to provide restitution to any victims of the offense.

18 U.S.C. §§ 3553(a)(1), (a)(2)(B)–(D), (a)(4)–(7).

The Third Circuit recently observed that “there appears to be a split” among

circuits as to “whether a district court must find new or unforeseen circumstances before it may 

modify a person’s conditions of supervised release.” United States v. Murray, 692 F.3d 273, 

278–79 (3d Cir. 2012) (noting possible split between, inter alia, United States v. Miller, 205 F.3d 

1098, 1101 (9th Cir. 2000) (suggesting changed circumstance required) and, inter alia, Begay, 

631 F.3d at 1170–71 (10th Cir. 2011) (suggesting no changed circumstance required)). The D.C. 

Circuit has not spoken directly on this issue, although, as Mr. Hill notes, in a case involving a 

challenge to conditions of supervised release imposed at sentencing, the D.C. Circuit recently 
8

observed that a defendant “remains free throughout his term of supervised release to ask the 

district court to modify the challenged conditions in light of changed circumstances, which the 

court is statutorily authorized to do.” United States v. Legg, 713 F.3d 1129, 1134 (D.C. Cir. 

2013). Mr. Hill asserts that the Court should seize upon that language (and a sentence in Chief 

Justice Roberts’s 2010 dissent in a restitution case, Dolan v. United States, 130 S. Ct. 2533, 2545 

(2010)) and require changed circumstances as a predicate to any modification requiring him to 

submit to a sex offender treatment assessment or further treatment. See Def. Reply [Dkt. 1217] 

at 1–5. Since there are no changed conditions, he asserts the Petition should simply be denied.

Because the Court ultimately concludes that new terms sought by the Petition are

not warranted and because the “no contact with children” provision in Mr. Hill’s original 

sentence was overbroad, it reaches no conclusion as to whether a changed circumstance must be 

found as a predicate to any change in terms of supervision.

III. ANALYSIS

The Court addresses the Petition before turning to Mr. Hill’s counterproposal to 

vacate the “no contact with children” condition.

A. Sex Offender Treatment Assessment

As support for its request that the Court require a Sex Offender Treatment 

Assessment, Mr. Hill’s Probation Officer believed it was appropriate “[b]ased on Mr. Hill’s prior 

conviction for . . . Attempted Second Degree Sexual Abuse.” Probation Pet. at 1. The USPO has 

expanded on its reasoning, both at the hearing and in its Submission, to explain that the conduct 

underlying Mr. Hill’s 2002 conviction is indicative of a need for sex offender treatment, and an 

Assessment will determine whether such treatment is necessary. See USPO Submission at 1–2. 

The government agrees and argues that an Assessment is appropriate because it “directly 
9

relate[s] to the purpose of the Sex Offender Registration and Notification Act.” Gov’t Mem. at 4 

(citing 42 U.S.C. § 16901). 

Mr. Hill opposes the Petition. First noting that the crime of conviction was a 

narcotics offense, he asserts that “it violates [18 U.S.C. § 3583(d)] to impose sex offender 

conditions that ‘bear no reasonable relationship to the nature of the convicted offense.’” Def. 

Opp. at 6 (quoting United States v. Scott, 270 F.3d 632, 636 (8th Cir. 2001)). Second, Mr. Hill

asserts that “[n]othing else in [his] history even tangentially suggests that he has committed or is 

likely to commit sexual misconduct,” in part because “it is plain from the circumstances of the 

2002 offense that Mr. Hill was not seeking to be sexually involved with anyone under age, but 

instead was initially lied to concerning the victim’s age.” Id. at 7; see also Def. Reply at 6 

(noting that no condition for an Assessment was imposed by the Superior Court judge in 2002). 

Third, Mr. Hill argues that “[t]he SOTA condition is also not reasonably related to the sentencing 

goals of deterrence, protection of the public, or rehabilitation” because “[t]here is no evidence 

that the public will in any way be protected by Mr. Hill’s submission to sex offender assessment 

and treatment.” Def. Opp. at 8. Finally, Mr. Hill contends that a Sex Offender Treatment 

Assessment involves an “extreme deprivation of liberty” that is far greater than necessary to 

achieve permissible sentencing goals under 18 U.S.C. § 3583(d)(2).8 Def. Opp. at 9. 

The Court has carefully considered the Petition and declines to require a Sex 

Offender Treatment Assessment. Certainly, the crime of conviction in this case does not support 

such a condition of release, and the full record now before the Court suggests that Mr. Hill’s 

 8 The USPO has indicated that an alternative to penile plethysmography is available, so the Court 

does not address the argument that the procedure is an independent violation of relevant statutes 

and substantive due process. Def. Reply at 9–10. Moreover, the Court does not need to address

Mr. Hill’s further argument that requiring a sex offender assessment and, perhaps, subsequent 

treatment, would constitute an impermissible delegation of authority from the Court to the 

USPO. Def. Mot. & Opp. at 11–12, Def. Reply at 8–9. 
10

earlier conviction resulted from a criminal indiscretion based, in part, on erroneous information.9 

These facts do not erase Mr. Hill’s 2002 conviction for attempted second degree child sexual 

abuse, as it is now an indelible part of his “history and characteristics.” But they do mitigate the 

concerns for deterrence, public protection, and future treatment. The Court has great confidence 

in Mr. Hill’s Probation Officer and will be vigilant, along with the USPO, in ensuring that this 

conclusion carries no untoward consequences. 

District courts are “afforded wide discretion when imposing terms and conditions 

of supervised release,” Legg, 713 F.3d at 1131 (citing United States v. Accardi, 669 F.3d 340, 

343 (D.C. Cir. 2012)), including imposing conditions that aim at rehabilitation, restitution, or 

protection of the public in ways that may bear no facial relationship to the offense committed. 

See, e.g., United States v. Love, 431 F.3d 477, 482 (5th Cir. 2005) (affirming condition of 

payment of outstanding balance of restitution first ordered in an unrelated case). Nonetheless, as 

the cases cited by Mr. Hill show, courts have repeatedly insisted on a searching inquiry into the 

need for sex offender treatment when the offense of conviction was not a sex offense. E.g., 

Scott, 270 F.3d at 636 (reversing imposition of sex offender treatment conditions because they 

were “not reasonably related to the current offense” of bank robbery, there was “no evidence 

supporting the need for the special conditions” when the sex-offense conviction was fifteen years 

old, and “the record contain[ed] no information indicating that [the defendant was] likely to 

repeat the offense, or that additional restrictions on his freedom [were] necessary to deter him 

from doing so”). Accordingly, the Court declines to require a Sex Offender Treatment 

Assessment.

 9

 The parties here are in agreement as to the facts underlying the 2002 conviction—at age 20, 

Mr. Hill mistakenly believed he was engaging in relations with a girl he believed to be of legal 

age under D.C. law but who was only 14. The law criminalizes this conduct with zero tolerance 

for “mistake” as a defense.
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B. “No Contact with Children” 

As a condition of his release, Mr. Hill is ordered to have “no contact with 

children.” He argues that this condition must be vacated because it “plainly violates [18 U.S.C. 

§] 3583(d) under the facts and circumstances of this case and should not have been imposed in 

the first instance.” Def. Opp. & Mot. at 12–13. Mr. Hill contends that the restrictions lack a 

“reasonable relation” to his situation, that they are impermissibly vague, and that they bar him 

from “interacting even with his own children.” Id. at 13–14. 

The USPO does not address Mr. Hill’s motion to vacate the “no contact with 

children” condition, but the government has filed two briefs in opposition. The government

asserts that the restriction should remain in place as a reasonable, permissible restriction under 

18 U.S.C. § 3583(d) because it will “ensure the defendant is not a danger to children under the 

age of 18.” Gov’t Mem. at 4. Moreover, the government contends that the “no contact with 

children” restriction will carry out the intent of the Sex Offender Registration and Notification 

Act, with which Mr. Hill was directed to comply in 2002 following his Superior Court 

conviction.10 Id. at 3–4. 

In concept, the government is correct that a “no contact with children” restriction

is reasonably related to the relevant § 3553(a) factors. A “no contact with children” condition is 

directly responsive to the offending conduct that led to Mr. Hill’s 2002 attempted second degree 

 10 The United States also contends that Mr. Hill has waived any objection to the “no contact with 

children” issue by failing to challenge it on direct appeal. U.S. Opp. at 2–3. The United States 

bases this argument in part on United States v. Legg, 713 F.3d 1129, 1132 (D.C. Cir. 2013), 

which applied plain error review to a defendant’s challenges to supervised release conditions 

raised for the first time on appeal. See Gov’t Supp. Opp. at 1–2. However, Legg is inapposite

because it speaks to appellate standards of review. Conditions of supervised release are intended 

to further the goals of sentencing—i.e., deterrence, public protection, etc.—after a period of 

incarceration. They intentionally are subject to change as an offender’s situation or conduct—or 

the law—warrant. See 18 U.S.C. § 3583(e)(2); Fed. R. Crim. P. 32.1(c). 
12

child sexual abuse conviction and addresses “the need for the sentence imposed . . . to protect the 

public from further crimes of the defendant.” 18 U.S.C. § 3553(a)(2)(C). Moreover, it affords

narrowly tailored and proportionate deterrence to the commission of any further criminal errors 

in judgment by Mr. Hill. Id. § 3553(a)(2)(B). 

However, Mr. Hill’s protestations that the condition is overly vague and 

restrictive are well founded. As currently drawn, the “no contact with children” condition 

provides:

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 off [sic] 18 without 

the expressed and written approval of the minor’s legal guardian 

and the written permission of the Court.

Judgment at 3. The Second Circuit found a similar condition of supervised release “ambiguous 

and . . . excessively broad,” and this Court concludes that the instant language should be 

clarified. The present text impermissibly provides no clarity for when Mr. Hill is interacting

with his own children, not even with permission and the supervision of their legal guardians. 

See Goings v. CSOSA, 786 F. Supp. 2d 48, 71–73 (D.D.C. 2011) (surveying cases in which 

“[c]ourts have struck down provisions restricting sex offenders from interacting with their own 

children as unconstitutional because they were not reasonably related or supported by the record”

where sex offenders “had a history of far more egregious behavior than that of the plaintiff,” a 

man with a conviction for sexual battery for sexual relations with a sixteen-year old girl); see 

also United States v. Voelker, 489 F.3d 139, 153–55 (3d Cir. 2007) (finding plain error in 

imposition of condition prohibiting defendant “from associating with minors without the prior 

approval of the Probation Officer and mandat[ing] that any such contact be in the presence of an 

adult who is familiar with [the defendant’s] criminal background” because there is no compelling 
13

state interest in curtailing parental rights absent “sufficient evidence” to indicate that “children 

are potentially in danger from their parents” (internal quotation marks and citation omitted)). 

The Court will thus modify the “no contact with children” provision accordingly.

The revised condition will read:

The defendant shall have no contact with children, age 18 or 

younger, who are not his children. He shall have no contact with 

his own children without the expressed, written approval of the 

guardian(s) of those children. The defendant shall refrain from 

loitering where children congregate, in arcades, in or near schools, 

playgrounds, and day care centers unless he is in the company of 

his own children. He shall not reside with a child or children under 

the age of 18 without the expressed, written approval of the 

minor’s legal guardian and the written permission of the Court.

This amended provision is reasonably related to the factors set forth in 18 U.S.C. §§ 3553(a)(1), 

(a)(2)(B)–(D), and (a)(4)–(7) and involves no greater deprivation of liberty than is reasonably 

necessary. See 18 U.S.C. § 3583(d).

IV. CONCLUSION

For the foregoing reasons, the Court will deny the Petition and will grant in part

Mr. Hill’s motion to vacate the “no contact with children” condition. A memorializing Order 

accompanies this Memorandum Opinion.

DATE: August 12, 2013

 /s/ 

ROSEMARY M. COLLYER

United States District Judge