FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 07-50124 Plaintiff-Appellee,

D.C. No.

v.  CR-06-00190-AG

JOSEPH STOTERAU,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Central District of California

Andrew J. Guilford, District Judge, Presiding

Argued and Submitted

March 6, 2008—Pasadena, California

Filed April 29, 2008

Before: J. Clifford Wallace, Ronald M. Gould, and

Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Ikuta

4607
COUNSEL

Jonathan Libby, Deputy Federal Public Defender, Los Angeles, California (argued); Kathryn A. Young, Deputy Federal

Public Defender, Los Angeles, California, for the defendantappellant. 

Anne C. Gannon, Assistant United States Attorney, Santa

Ana, California, for the plaintiff-appellee.

UNITED STATES v. STOTERAU 4611
OPINION

IKUTA, Circuit Judge: 

Joseph Stoterau pleaded guilty to transporting child pornography in violation of 18 U.S.C. § 2252A(a)(1). In this

appeal, he challenges several aspects of his sentence, including the length of his term of imprisonment and several special

conditions of his supervised release. We affirm in part, vacate

in part, and remand.

I

In December 2005, Joseph Stoterau, then 26, met John Doe

at a gay and lesbian support group. Doe was 14 at the time.

In July 2006, Stoterau introduced Doe to the website “rentboy.com.” Stoterau explained that the site was an opportunity

for the two of them to make some money. Doe agreed to

allow Stoterau to take nude pictures of him. Stoterau then

uploaded the photos to rentboy.com and included his own cell

phone number as Doe’s contact information. 

When rentboy.com customers would call, Stoterau would

pretend to be Doe. Stoterau would tell customers that he

(Doe) would engage in whatever type of sex they wanted for

$250 per hour. Stoterau would then get in contact with Doe

and provide him with the customers’ details. On at least two

occasions Stoterau drove Doe to locations where customers

paid Doe $250 for various sex acts. After these meetings, Doe

would give part of the $250 to Stoterau. Stoterau would give

Doe alcoholic beverages before each meeting. 

On August 4, 2006, officers from Immigration and Customs Enforcement executed a search warrant at Stoterau’s residence. During the search, officers seized Stoterau’s personal

computer. A subsequent search of the hard drive revealed

images depicting child pornography, that is, visual depictions

4612 UNITED STATES v. STOTERAU
of a minor child engaged in sexually explicit conduct. On

October 30, 2006, Joseph Stoterau pleaded guilty to a onecount information charging him with transporting child pornography in violation of 18 U.S.C. § 2252A(a)(1).1

Following Stoterau’s guilty plea, the probation office prepared a Presentence Investigation Report (“PSR”), which

included the following calculation of Stoterau’s indicated

Guidelines range. First, the PSR noted that the applicable

Guidelines provision for violations of 18 U.S.C.

§ 2252A(a)(1) is U.S.S.G. § 2G2.2 (base offense level 22).

Second, the PSR applied the cross-reference to U.S.S.G.

§ 2G2.1 (sexually exploiting a minor by production of sexually explicit material) pursuant to U.S.S.G. § 2G2.2(c)

because Stoterau’s offense conduct involved posing and photographing Doe as he engaged in sexually explicit conduct

under 18 U.S.C. § 2256 (sexually explicit conduct includes

“lascivious exhibition of the genitals or pubic area of any person”). This cross-reference had the effect of increasing Stoterau’s base offense level from 22 (per § 2G2.2) to 32 (per

§ 2G2.1). Third, the PSR applied a two-level enhancement

under U.S.S.G. § 2G2.1(b)(2)(A) for an offense involving

“the commission of a sexual act or sexual contact.” Fourth,

the PSR applied a two-level enhancement under U.S.S.G.

§ 2G2.1(b)(3) because Stoterau’s “offense involved distribution” of pornographic materials. Fifth, the PSR applied a

three-level downward adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1(a) and (b). These computations

resulted in a total offense level of 33. Stoterau’s base offense

level was then combined with his criminal history category of

II.2 This resulted in an indicated Guidelines range of 151-188

months. 

1

18 U.S.C. § 2252A(a)(1) punishes “[a]ny person who . . . knowingly

mails, or transports or ships in interstate or foreign commerce by any

means, including by computer, any child pornography.” 

2

In 2002, Stoterau was convicted of grand theft, in violation of Cal.

Penal Code § 487(a), receiving stolen property, in violation of Cal. Penal

UNITED STATES v. STOTERAU 4613
As is customary, the PSR also provided a synopsis of Stoterau’s offense conduct. Some of the information used in this

synopsis was drawn from several law enforcement reports on

Stoterau’s case. In his sentencing brief, Stoterau objected to

the use of this information, arguing that it was unreliable

hearsay. Stoterau also argued for a “no more than 87 month

sentence,” challenged the two-level enhancement under

U.S.S.G. § 2G2.1(b)(2)(A), and lodged objections against

several of the proposed conditions of supervised release. 

The district court held Stoterau’s sentencing hearing on

March 5, 2007. After hearing from the parties and consulting

Stoterau’s PSR, the district court adopted the Guidelines

range calculated in the PSR (151-188 months) and sentenced

Stoterau to a term of imprisonment of 151 months. The court

considered and rejected Stoterau’s argument that the twolevel enhancement under U.S.S.G. § 2G2.1(b)(2)(A) was

inappropriate. Additionally, as part of its sentencing decision,

the district court explicitly referenced the sentencing factors

of 18 U.S.C. § 3553(a) and explained why it believed the sentence was consistent with those factors. 

The district court also sentenced Stoterau to a five-year

term of supervised release. As part of this term of supervised

release, the district court imposed a number of special conditions. The district court did not rule on Stoterau’s contention,

raised in his sentencing brief, that the PSR contained unreliable hearsay. Stoterau timely appealed. 

Stoterau’s appeal raises the following five general issues,

which we discuss in turn: (1) whether the district court erred

Code § 496(a), and second degree burglary from a commercial structure,

in violation of Cal. Penal Code §§ 459, 460(b). In 2003, Stoterau admitted

to being under the influence of a controlled substance, in violation of Cal.

Health & Safety Code § 11550(a). Although this latter case was resolved

through a diversionary disposition, it nevertheless counts for purposes of

a defendant’s criminal history score under U.S.S.G. § 4A1.2(f). 

4614 UNITED STATES v. STOTERAU
in imposing the two-level enhancement under U.S.S.G.

§ 2G2.1(b)(2)(A); (2) whether Stoterau’s overall sentence was

unreasonable; (3) whether the district court abused its discretion in imposing eight special conditions on Stoterau’s fiveyear term of supervised release; (4) whether the district court

erred in failing to rule on Stoterau’s allegation that the PSR

contained unreliable hearsay; and (5) whether this disposition

should be filed under seal or alternatively, whether we should

identify Stoterau by a pseudonym in place of his true name.

II

Stoterau first argues that the district court erred in imposing

a two-level enhancement under U.S.S.G. § 2G2.1(b)(2)(A) for

offenses involving “the commission of a sexual act or sexual

contact.”

3

“This court reviews the district court’s interpretation of the Sentencing Guidelines de novo, the district court’s

application of the Sentencing Guidelines to the facts of this

case for abuse of discretion, and the district court’s factual

findings for clear error.” United States v. Kimbrew, 406 F.3d

1149, 1151 (9th Cir. 2005). 

U.S.S.G. § 2G2.1(b) directs the district court to apply specified enhancements for six different “[s]pecific [o]ffense

[c]haracteristics.” The specific offense characteristic at issue

3The section provides, in pertinent part, 

2G2.1. Sexually Exploiting a Minor by Production of Sexually

Explicit Visual or Printed Material; Custodian Permitting Minor

to Engage in Sexually Explicit Conduct; Advertisement for

Minors to Engage in Production. 

. . . . 

(b) Specific Offense Characteristics 

. . . . 

(2) . . . If the offense involved — 

(A) the commission of a sexual act or sexual contact,

increase by 2 levels[.] 

UNITED STATES v. STOTERAU 4615
here is identified in U.S.S.G. § 2G2.1(b)(2)(A), which states,

“[i]f the offense involved — (A) the commission of a sexual

act or sexual contact, increase by 2 levels.” Stoterau contends

that he pleaded guilty only to transporting child pornography,

and that the sexual contacts between Doe and the rentboy.com

customers were not part of the offense to which he pleaded

guilty. Accordingly, Stoterau argues, it was inappropriate for

the district court to use § 2G2.1(b)(2)(A) to enhance his sentence. 

Stoterau’s argument fails in light of the Guidelines’ definition of “offense” and its directions regarding the determination of specific offense characteristics for offense conduct

under Chapter 2 of the Guidelines (which includes

§ 2G2.1(b)(2)(A)). As defined in U.S.S.G. § 1B1.1,

“ ‘[o]ffense’ means the offense of conviction and all relevant

conduct under § 1B1.3 (Relevant Conduct) unless a different

meaning is specified or is otherwise clear from the context.”

U.S.S.G. § 1B1.1 cmt. n.1(H) (emphasis added). Because

nothing in U.S.S.G. § 2G2.1(b)(2)(A) specifies that the definition of “offense” in that section has a different meaning than

the definition provided in U.S.S.G. § 1B1.1, nor is a different

meaning evident from the context, we conclude that “offense”

for purposes of § 2G2.1(b)(2)(A) includes the relevant conduct listed in § 1B1.3. U.S.S.G. § 1B1.3, in turn, provides that

specific offense characteristics under Chapter 2 of the Guidelines are to be determined on the basis of the relevant conduct

set forth in § 1B1.3(a). 

[1] As defined in § 1B1.3(a)(1), “relevant conduct”

includes “all acts and omissions committed, aided, abetted,

counseled, commanded, induced, procured, or willfully

caused by the defendant . . . that occurred during the commission of the offense of conviction, in preparation for that

offense, or in the course of attempting to avoid detection or

responsibility for that offense.” U.S.S.G. § 1B1.3(a)(1). “Relevant conduct” also includes “all harm that resulted from the

acts and omissions specified in subsection[ ] (a)(1) . . . and all

4616 UNITED STATES v. STOTERAU
harm that was the object of such acts and omissions.”

U.S.S.G. § 1B1.3(a)(3); see United States v. Hicks, 217 F.3d

1038, 1048 (9th Cir. 2000) (explaining that the phrase “resulted from” in § 1B1.3(a)(3) establishes a causation requirement which other circuits have held is satisfied when the harm

was a “direct result” or “flowed naturally” from the defendant’s criminal misconduct). Therefore, if a defendant’s relevant conduct under § 1B1.3(a) (including all acts caused by

the defendant during commission of the offense of conviction

and all harm resulting from such acts) involved “the commission of a sexual act or sexual contact,” then such sexual act

or contact is part of the defendant’s “offense” and must be

considered when determining the specific offense characteristics under § 2G2.1(b)(2)(A). 

[2] As noted above, U.S.S.G. § 1B1.1 defines “offense” as

“the offense of conviction and all relevant conduct under

§ 1B1.3.” Stoterau was convicted of transporting child pornography in violation of 18 U.S.C. § 2252A(a)(1). The factual

basis for the transportation element of Stoterau’s conviction

was his uploading of Doe’s photos on rentboy.com. Thus,

uploading the photos was “relevant conduct” for purposes of

U.S.S.G. § 1B1.3(a)(1)(A) because it was an act committed

“during the commission of the offense of conviction.” This

conduct directly resulted in Doe undertaking sexual acts with

rentboy.com customers. These sexual acts constituted a harm

to Doe, an underage boy. Therefore, under U.S.S.G.

§ 1B1.3(a)(3), these sexual acts were part of Stoterau’s relevant conduct because they were a “harm that resulted from the

acts . . . specified in subsection[ ] (a)(1).” Because Doe’s sexual acts were part of Stoterau’s relevant conduct under

§ 1B1.3, they were part of his “offense” as defined in § 1B1.1,

and must be used to determine the specific offense characteristics for purposes of U.S.S.G. § 2G2.1(b)(2)(A). Therefore,

the district court appropriately took such sexual contacts into

account by applying the two-level enhancement under

U.S.S.G. § 2G2.1(b)(2)(A). 

UNITED STATES v. STOTERAU 4617
III

Stoterau next challenges the overall reasonableness of his

term of imprisonment. Appellate courts must employ a twostep process when reviewing a sentence for reasonableness.

See Gall v. United States, 128 S. Ct. 586, 597 (2007). “[We]

must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines

as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to

adequately explain the chosen sentence . . . .” Id. “Assuming

that the district court’s sentencing decision is procedurally

sound,” we “then consider the substantive reasonableness of

the sentence imposed.” Id. When conducting substantive reasonableness review, we “take into account the totality of the

circumstances, including the extent of any variance from the

Guidelines range.” Id. We review the reasonableness of the

district court’s sentencing decision for abuse of discretion. Id.

That we “might reasonably have concluded that a different

sentence was appropriate is insufficient to justify reversal of

the district court.” Id. 

Stoterau raises both procedural and substantive objections

to his sentence. He first contends that the district court did not

adequately consider the § 3553(a) factors. According to Stoterau, the district court merely engaged in a rote recitation of

§ 3553(a) and thereby violated the Supreme Court’s admonishment that “[t]he sentencing judge should set forth enough

to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his

own legal decisionmaking authority.” Rita v. United States,

127 S. Ct. 2456, 2468 (2007). 

[3] While district courts are required to “state in open court

the reasons for [their] imposition of the particular sentence,”

18 U.S.C. § 3553(c), this obligation does “not necessarily

require lengthy explanation.” Rita, 127 S. Ct. at 2468. “Cir4618 UNITED STATES v. STOTERAU
cumstances may well make clear that the judge rests his decision upon the Commission’s own reasoning that the

Guidelines sentence is a proper sentence (in terms of

§ 3553(a) and other congressional mandates) in the typical

case, and that the judge has found that the case before him is

typical.” Id. “Judges need not rehearse on the record all of the

considerations that 18 U.S.C. § 3553(a) lists; it is enough to

calculate the range accurately and explain why (if the sentence lies outside it) this defendant deserves more or less.”

United States v. Mix, 457 F.3d 906, 912 (9th Cir. 2006) (internal quotation marks omitted). 

Likewise, “when a party raises a specific, nonfrivolous

argument tethered to a relevant § 3553(a) factor in support of

a requested sentence, then the judge should normally explain

why he accepts or rejects the party’s position.” United States

v. Carty, ___ F.3d ___, 2008 WL 763770, at *5 (9th Cir. Mar.

24, 2008) (en banc). However, when a defendant’s arguments

are straightforward and uncomplicated, the district court does

not abuse its discretion when it listens to the defendant’s arguments and then “simply [finds those] circumstances insufficient to warrant a sentence lower than the Guidelines range.”

Id. at *7 (quoting Rita, 127 S. Ct. at 2469). 

[4] In this case, the district court did reference and apply

the sentencing factors of § 3553(a). It stated: 

I believe this sentence satisfies the factors to be considered under section 3553(a). The court considered

the nature and circumstances of the offense and the

history and characteristics of the defendant. The

court believes the sentence reflects the seriousness of

the offense, particularly as it relates to a minor

whose life may very well be negatively affected by

the conduct of the defendant. The court believes the

sentence is necessary to promote respect for the law

and to let the general public know the seriousness of

this crime through the length of the sentence. The

UNITED STATES v. STOTERAU 4619
court believes this provides a just punishment for the

offense provided. The court believes that it affords

adequate deterrence to this type of criminal conduct.

The court believes this sentence protects the public

from further crimes of this defendant. 

This explanation includes references to several subsections of

18 U.S.C. § 3553(a). Specifically, it refers to subsections

(a)(1), (a)(2)(A), (a)(2)(B), and (a)(2)(C).4

[5] Additionally, at various points in the sentencing hearing, the district court explicitly noted that it had considered

Stoterau’s arguments. The court also imposed a sentence

within Stoterau’s indicated Guidelines range. See Carty, 2008

WL 763770, at *7-8 (noting that, except in an unusual or

complex case, a district court need not provide much explanation for a within-Guidelines sentence). In sum, the record

makes clear that the district court considered the evidence and

arguments of the defendant and based its sentence on an analysis of the advisory Guidelines range and the provisions of 18

U.S.C. § 3553(a). See Rita, 127 S. Ct. at 2469. Therefore, we

conclude that the district court did not commit procedural

4

18 U.S.C. § 3553(a) provides, in relevant part: 

(a) Factors to be considered in imposing a sentence. — The

court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of

this subsection. The court, in determining the particular sentence

to be imposed, shall consider — 

(1) the nature and circumstances of the offense and the history and characteristics of the defendant; 

(2) the need for the sentence imposed — 

(A) to reflect the seriousness of the offense, to promote

respect for the law, and to provide just punishment for the

offense; 

(B) to afford adequate deterrence to criminal conduct; 

(C) to protect the public from further crimes of the

defendant[.] 

4620 UNITED STATES v. STOTERAU
error under Gall and we reject Stoterau’s contentions that the

district court failed to consult the § 3553(a) factors, explain its

sentence in light of those factors, or respond to each of Stoterau’s specific, nonfrivolous sentencing arguments. See Gall,

128 S. Ct. at 597; Carty, 2008 WL 763770, at *5. 

Stoterau also claims that his term of imprisonment is substantively unreasonable. He advances three principal arguments in support of this claim. 

First, Stoterau argues that his sentence is unreasonable

because it overstates his criminal history. Stoterau’s argument

relies on one of the convictions used to calculate his criminal

history score. In 2003, Stoterau admitted to being under the

influence of a controlled substance, in violation of Cal. Health

& Safety Code § 11550(a). Stoterau resolved this case by successfully entering and completing a diversionary disposition

pursuant to Cal. Penal Code §§ 1000-1000.9 (permitting persons accused of specified crimes to enter into various rehabilitation programs in lieu of trial). Although Stoterau’s

successful completion of this diversionary program meant that

his offense was “deemed to have never occurred” as a matter

of state law, Cal. Penal Code § 1000.4(a), the United States

Sentencing Guidelines nevertheless count diversionary dispositions as part of a defendant’s criminal history score.

U.S.S.G. § 4A1.2(f). 

Stoterau asserts that it was unfair for the district court to

count this conviction because he could have disposed of his

prior conviction by seeking to have it expunged under Cal.

Penal Code § 1203.4 (where a convicted defendant has met

specified conditions, the court may release the defendant

“from all penalties and disabilities resulting from the offense

of which he or she has been convicted” with certain exceptions). Stoterau argues that had he successfully sought

expungement, his 2003 offense would not have counted for

purposes of his criminal history because “[s]entences for

UNITED STATES v. STOTERAU 4621
expunged convictions are not counted” under the Guidelines.

U.S.S.G. § 4A1.2(j). 

[6] This argument misses the mark because convictions set

aside pursuant to Cal. Penal Code § 1203.4 are not “expunged” for purposes of U.S.S.G. § 4A1.2(j). United States v.

Hayden, 255 F.3d 768, 774 (9th Cir. 2001). Therefore, even

if Stoterau had successfully sought to resolve his 2003 case

under Cal. Penal Code § 1203.4, rather than § 1000.4(a), it

would have nevertheless counted for purposes of his criminal

history score. Accordingly, the district court was reasonable

in counting the 2003 case as part of Stoterau’s criminal history score. 

Second, Stoterau contends that his sentence was unreasonable because his base offense level included duplicative

enhancements. He argues that his base offense level was

enhanced multiple times for the same underlying criminal act,

namely, putting Doe’s photo on the website. Stoterau misunderstands the nature of our double counting doctrine. “Impermissible double counting occurs when one part of the

Guidelines is applied to increase a defendant’s punishment on

account of a kind of harm that has already been fully

accounted for by application of another part of the Guidelines.” United States v. Holt, 510 F.3d 1007, 1011 (9th Cir.

2007). “However, [d]ouble counting is not always impermissible; it is sometimes authorized and intended by the Sentencing Guidelines when each invocation of the behavior serves

a unique purpose under the Guidelines.” Id. (internal quotation marks omitted) (alteration in original). 

[7] Here, each of Stoterau’s enhancements served a “unique

purpose under the Guidelines,” and accounted for a different

aspect of the harms caused by Stoterau’s criminal act. As

explained in the PSR, the Guidelines directed three separate

increases in Stoterau’s base offense level for three different

reasons: first, because Stoterau’s offense conduct involved

enticing a minor to engage in sexually explicit conduct for the

4622 UNITED STATES v. STOTERAU
purpose of producing a visual depiction of such conduct, see

U.S.S.G. § 2G2.2 cmt. n.5(A); second, because his offense

included the sexual acts undertaken between Doe and the

rentboy.com customers, see U.S.S.G. § 2G2.1(b)(2)(A); and

finally, because he distributed Doe’s photos over the Internet

to the rentboy.com website, see U.S.S.G. § 2G2.1 cmt. n.1.

Each of these enhancements accounted for a different aspect

of Stoterau’s offense and were separately authorized and

intended by the Guidelines. Accordingly, Stoterau’s sentence

was not unreasonable by virtue of duplicative enhancements

or impermissible double counting. 

Finally, Stoterau contends that his circumstances are special; he points to the abuse he suffered as a child, his mental

health issues, and his life-long struggle with methamphetamine addiction. Stoterau claims that these mitigating considerations render his overall sentence unreasonable. See 18

U.S.C. § 3553(a)(1). This argument too is unpersuasive. Stoterau sexually exploited a 14-year-old boy for profit. The district court reasonably concluded that Stoterau’s 151-month

sentence was necessary to reflect the seriousness of the

offense, promote respect for the law, and to provide adequate

deterrence for this type of criminal conduct. See 18 U.S.C.

§ 3553(a). Moreover, this sentence was at the low-end of Stoterau’s Guidelines range. While we do not apply an appellate

presumption of reasonableness to a within-Guidelines sentence, Carty, 2008 WL 763770, at *6, we recognize that

“ ‘when the judge’s discretionary decision accords with the

Commission’s view of the appropriate application of

§ 3553(a) in the mine run of cases, it is probable that the sentence is reasonable.’ ” Id. (quoting Rita, 127 S. Ct. at 2465).

[8] To the extent that Stoterau raises extenuating circumstances relevant under 18 U.S.C. § 3553(a)(1), we do not consider those circumstances so special as to render Stoterau’s

overall sentence unreasonable. See Carty, 2008 WL 763770,

at *8 (noting that the defendant’s circumstances were insufficiently unusual to compel a lower sentence than the low-end

UNITED STATES v. STOTERAU 4623
of the Guidelines range). Evaluating the record in light of the

totality of the circumstances, we conclude that the district

court did not abuse its discretion in sentencing Stoterau to a

term of imprisonment of 151 months. See Gall, 128 S. Ct. at

597. 

IV

Stoterau challenges eight of the special conditions of his

five-year term of supervised release. We review the district

court’s decision to impose conditions of supervised release for

abuse of discretion. United States v. Weber, 451 F.3d 552,

557 (9th Cir. 2006) In applying this standard of review, “we

give considerable deference to a district court’s determination

of the appropriate supervised release conditions,” recognizing

that “a district court has at its disposal all of the evidence, its

own impressions of a defendant, and wide latitude.” Id. (internal quotation marks omitted). 

The principal statutory provision that constrains the district

court’s discretion to impose conditions of supervised release

is 18 U.S.C. § 3583(d).5 Under this subsection, district courts

5

In relevant part, 18 U.S.C. § 3583(d) authorizes district courts to

impose any condition they deem appropriate, so long as the condition: 

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

3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D); 

(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)[.] 

18 U.S.C. § 3583(d) incorporates by reference the following provisions of

18 U.S.C. § 3553(a): 

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

and characteristics of the defendant; 

(2) the need for the sentence imposed — 

4624 UNITED STATES v. STOTERAU
may impose conditions “if they are reasonably related to the

goal of deterrence, protection of the public, or rehabilitation

of the offender, and involve no greater deprivation of liberty

than is reasonably necessary for the purposes of supervised

release.” United States v. Rearden, 349 F.3d 608, 618 (9th

Cir. 2003) (internal quotation marks omitted). The government must carry the burden of demonstrating that these statutory standards are met. Weber, 451 F.3d at 558.

A

[9] Condition 11 states that, “[t]he defendant shall not

access via computer any material that relates to pornography

of any kind.” Stoterau argues that the word “pornography” is

too vague to put him on notice of what material is prohibited.

We have previously held in the supervised release context that

the word “pornography,” without more, is too vague to put the

defendant on notice of “what conduct will result in his being

returned to prison.” United States v. Guagliardo, 278 F.3d

868, 872 (9th Cir. 2002). We explained: 

Reasonable minds can differ greatly about what is

encompassed by ‘pornography.’ Given this inherent

vagueness, Guagliardo cannot determine how

broadly his condition will extend. Further, we cannot

determine whether the condition is otherwise reasonable under 18 U.S.C. § 3583(d). 

Id.

. . . 

(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[.] 

UNITED STATES v. STOTERAU 4625
[10] Like the challenged condition in Guagliardo, Condition 11 here leaves Stoterau “in the untenable position of discovering the meaning of his supervised release condition only

under continual threat of reimprisonment, in sequential hearings before the court.” Id. (internal quotation marks omitted).

Accordingly, following Guagliardo, we vacate this condition

and remand for the district court to impose a condition with

greater specificity. 

B

Condition 12 states:

The defendant shall participate in a psychological or

psychiatric counseling program 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, evaluations

and psychological[6] testing, such as polygraph, and

Abel testing. 

Stoterau raises two principal objections to this condition.7

6

In this case, there is a discrepancy between the court’s pronouncement

of Condition 12 at the sentencing hearing and in the written judgment. At

the sentencing hearing, the district court used the word “psychological”;

the judgment, however, uses the word “physiological.” “When there is a

discrepancy between an unambiguous oral pronouncement of a sentence

and the written judgment, the oral pronouncement controls.” United States

v. Fifield, 432 F.3d 1056, 1059 n.3 (9th Cir. 2005). We therefore give

legal effect to the word “psychological,” as used by the district court in

its oral pronouncement of sentence. In this case, however, the difference

between “psychological” and “physiological” is immaterial to the question

presented here on appeal, namely, whether the district court abused its discretion in imposing polygraph and Abel testing. Regardless of whether the

word “psychological” or “physiological” is used, Condition 12 unambiguously specifies that Stoterau must submit to polygraph and Abel testing.

7Stoterau cursorily raises a number of other challenges to this condition.

He asserts that the polygraph requirement violates his Sixth Amendment

4626 UNITED STATES v. STOTERAU
First, he argues that mandatory polygraph testing violates his

Fifth Amendment right not to be “compelled in any criminal

case to be a witness against himself.” U.S. Const. amend. V.

Second, Stoterau claims that the requirement that he submit

to Abel testing violates his due process rights and the requirements of 18 U.S.C. § 3583(d). We address these arguments in

turn. 

[11] First, the polygraph prong of Condition 12 does not

infringe on Stoterau’s Fifth Amendment rights because Stoterau will retain these rights during his polygraph exams. “[A]

district court may require, as a term of supervised release, that

a defendant submit to polygraph testing, provided such a condition comports with the requirements of § 3583(d), but a

defendant retains his Fifth Amendment rights during any such

testing.” Weber, 451 F.3d at 568 n.17. See also United States

v. Antelope, 395 F.3d 1128, 1134-41 (9th Cir. 2005); United

States v. Lee, 315 F.3d 206, 212-13 (3d Cir. 2003) (upholding

a condition requiring the defendant to submit to random polygraph examination, because “the condition does not require

[the defendant] to answer incriminating questions. . . . Thus,

if a question is asked during the polygraph examination which

calls for an answer that would incriminate [the defendant] in

a future criminal proceeding, [the defendant] retains the right

to invoke his Fifth Amendment privilege and remain silent”).

Therefore, if Stoterau receives a question during his polygraph exam which calls for him to provide an answer that

would incriminate him in a future criminal proceeding, Stoterau retains the right to invoke his Fifth Amendment privirights and that it is constitutionally overbroad and vague. He also contends

that the district court violated the Constitution when it delegated to the

probation officer the power to determine whether Stoterau is obliged to

participate in outpatient or inpatient treatment. These contentions are general, mentioned only in passing, and are unsupported by meaningful argument. Accordingly, they are waived. See Fed. R. App. P. 28(a)(9);

Ghahremani v. Gonzales, 498 F.3d 993, 997 (9th Cir. 2007); United States

v. Kimble, 107 F.3d 712, 715 n.2 (9th Cir. 1997). 

UNITED STATES v. STOTERAU 4627
lege and remain silent. Should the government desire Stoterau

to answer, it may afford his answers the protection of use and

derivative use immunity. See Antelope, 395 F.3d at 1141 &

n.5. 

Stoterau argues that the polygraph prong of Condition 12

violates his constitutional rights for another reason, namely,

that a polygraph examination is akin to custodial interrogation, and that therefore he would be entitled to Miranda warnings before the exam. See Miranda v. Arizona, 384 U.S. 436,

444 (1966). 

[12] This argument fails because the polygraph examinations required by Condition 12 do not constitute custodial

interrogation. In Minnesota v. Murphy, 465 U.S. 420, 430 &

n.5 (1984), the Supreme Court determined that Miranda

warnings are unnecessary in the context of probation interviews, where defendants are “not under arrest and [are] free

to leave at the end of the meeting.” Although “the probation

officer could compel [the defendant’s] attendance and truthful

answers,” such compulsion did not transform the probation

interview “into an inherently coercive setting” akin to “formal

arrest” or a “restraint on freedom of movement of the degree

associated with a formal arrest.” Id. at 430-31 (internal quotation marks omitted). In short, the Court concluded, “the general obligation to appear and answer questions truthfully”

does not constitute a custodial interrogation for purposes of

Miranda. Id. at 427. 

[13] The logic of Murphy applies with equal force in the

present context. Condition 12 imposes polygraph testing as

part of Stoterau’s “psychological or psychiatric counseling

program and/or . . . sex offender treatment program.” Therefore, Stoterau will not be under arrest during these tests, and

the temporary restrictions on his liberty are far less than if he

were under arrest. To comply with Condition 12, Stoterau

must only appear and answer questions truthfully. To the

extent that the presence of the polygraph machinery increases

4628 UNITED STATES v. STOTERAU
the coercive atmosphere of the interview, we conclude that

the environment remains more akin to a probation interview

than an interrogation in police custody. See Lee, 315 F.3d at

211-12. Therefore, Stoterau is not entitled to receive Miranda

warnings before undergoing polygraph examination pursuant

to Condition 12 of his supervised release. 

Stoterau’s second challenge to Condition 12 pertains to

Abel testing. Abel testing is a diagnostic exam for sex offenders that studies “visual reaction time.” United States v. Birdsbill, 243 F. Supp. 2d 1128, 1131 n.3 (D. Mont. 2003). In Abel

testing: 

A test subject is asked to view slides of clothed persons of varying age and sex for the purpose of rating

sexual attractiveness on a paper-and-pencil questionnaire. The subject is supposed to think that the

paper-and-pencil test is the actual test, but the critical portion of the test calculates how long the subject

gazes at the slide. It is this measure of [visual reaction time] that is used to determine the subject’s sexual interest in the various categories of adults and

children shown in the slides. 

Id. Stoterau raises two principal objections to the Abel testing

requirement in Condition 12. First, he argues that the district

court’s failure to articulate on the record at sentencing its reasons for imposing the Abel testing condition violated his due

process rights. Second, Stoterau argues that the imposition of

Abel testing violates 18 U.S.C. § 3583(d)(1) because the testing is too unreliable to be “reasonably related” to the goals of

supervised release. 

In considering Stoterau’s due process claim, we begin with

the general rule that district courts are not required to “articulate on the record at sentencing the reasons for imposing each

condition.” Rearden, 349 F.3d at 619; see also United States

v. Betts, 511 F.3d 872, 876 (9th Cir. 2007). We have carved

UNITED STATES v. STOTERAU 4629
out an exception to this general rule for conditions of supervised release that implicate a particularly significant liberty

interest. Weber, 451 F.3d at 560-61. Where such a particularly

significant liberty interest is at stake, the district court must

follow additional procedures and make special findings. Id. at

561; United States v. Williams, 356 F.3d 1045, 1053 (9th Cir.

2004). Specifically, the district court “must support its decision [to impose the condition] on the record with record evidence that the condition of supervised release sought to be

imposed is necessary to accomplish one or more of the factors

listed in § 3583(d)(1) and involves no greater deprivation of

liberty than is reasonably necessary.” Weber, 451 F.3d at 561

(internal quotation marks omitted). 

We have identified three conditions of supervised release

that implicate particularly significant liberty interests. In Williams, 356 F.3d at 1055, we determined that a condition of

supervised release “compelling a person to take antipsychotic

medication is an especially grave infringement of liberty” and

thus warranted a departure from the usual rule that district

courts need not articulate their reasons for imposing supervised release conditions. In Weber, we applied this heightened

procedural requirement to a condition of supervised release

which mandated penile plethysmograph testing.8 451 F.3d at

563. Finally, in United States v. Cope, 506 F.3d 908, 919 n.5

(9th Cir. 2007), we suggested in passing that “[w]e have no

doubt that chemical castration would, if prescribed against the

will of a defendant on supervised release, implicate a particularly significant liberty interest.” 

The relevant liberty interest impinged upon by these testing

procedures and medicines is the “constitutional interest inher8Penile plethysmography is a testing procedure that “involves placing a

pressure-sensitive device around a man’s penis, presenting him with an

array of sexually stimulating images, and determining his level of sexual

attraction by measuring minute changes in his erectile responses.” Weber,

451 F.3d at 554 (internal quotation marks omitted). 

4630 UNITED STATES v. STOTERAU
ent in avoiding unwanted bodily intrusions or manipulations.”

Weber, 451 F.3d at 563 (internal quotation marks omitted);

see also Williams, 356 F.3d at 1054 (noting that the potential

for serious negative side effects is also germane to the analysis of whether a condition implicates a particularly significant

liberty interest). 

Abel testing does not involve any manipulations or intrusions akin to those involved in penile plethysmography, antipsychotic medication, or chemical castration.9

 As noted above,

Abel testing involves showing subjects a series of slides and

monitoring the amount of time they attend to each slide.

Weber, 451 F.3d at 567. Unlike antipsychotics or chemical

castration, Abel testing does not “interfere[ ] with mental processes [or] alter[ ] behavior.” Cope, 506 F.3d at 919 n.5.

Unlike penile plethysmography, Abel testing does not require

the test subject to disrobe and does not “involve the minute

monitoring of changes in the size and shape of a person’s genitalia.” Weber, 451 F.3d at 563. Indeed, in Weber, we noted

that Abel testing is “much less intrusive into the body and

somewhat less intrusive into the mind of a defendant than

plethysmograph testing.” 451 F.3d at 567. And in Cope, we

described Abel testing as a “far less intrusive procedure” than

penile plethysmography. 506 F.3d at 913 n.1. 

[14] Like polygraph testing, Abel testing uses physiological

data to draw rough inferences about the contents of a subject’s

thoughts. To the extent this is an intrusion into the mind, see

9Although we have had occasion to discuss Abel testing before, we have

not yet determined whether it implicates a particularly significant liberty

interest. In Weber, we discussed Abel testing “to point out the existence

of a less intrusive alternative to plethysmograph testing.” 451 F.3d at 568.

However, “we [did] not set forth any opinion as to [Abel testing’s] propriety in this, or any other case.” Id. In Cope, we upheld a sex offender treatment condition that included Abel testing against the charge that the

condition was overbroad. 506 F.3d at 920. Like Weber, Cope did not

decide whether Abel testing implicates a particularly significant liberty

interest. 

UNITED STATES v. STOTERAU 4631
Weber, 451 F.3d at 567, it is not the type of intrusion which

“tinker[s] with the mental processes,” Williams, 356 F.3d at

1054 (internal quotation marks omitted). It is different in kind

from the intrusions associated with penile plethysmography,

chemical castration, and antipsychotic medication. Accordingly, we conclude that Abel testing does not implicate a particularly significant liberty interest, and thus does not require

the district court to make the heightened findings required by

Williams and Weber. 

Stoterau also argues that Abel testing is too unreliable to be

reasonably related to the goals of supervised release under 18

U.S.C. § 3583(d). Stoterau principally relies on United States

v. Birdsbill, 243 F. Supp. 2d 1128. In that case, the district

court considered whether Abel testing was sufficiently reliable to be admissible under the evidentiary standard for scientific testimony articulated in Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993). Birdsbill, 243 F.

Supp. 2d at 1132-36. Expressing concern that Abel testing

could be subject to faking, id. at 1135-36, the court stated that

the “known or potential error rate of [Abel testing] varies

from poor . . . to appalling.” Id. at 1135. The court also

explained that the reliability of Abel testing was difficult to

evaluate because “there have been no independent studies

conducted for the purpose of verifying the theory underlying

[Abel testing].” Id. Indeed, the court noted that “there is a fundamental problem in any attempt to replicate or verify the

validity of [Abel testing] because the formula used . . . is proprietary information.” Id. at 1133. The creator of Abel testing

“testified that he does not share his formula with anyone outside his company.” Id. Ultimately, the district court concluded

that Abel testing was insufficiently reliable to satisfy the Daubert standard. Id. at 1136. 

[15] Even if we were to agree with Birdsbill’s conclusion

that Abel testing is too unreliable to be admissible as evidence

under the Daubert standard, such a conclusion would not

answer the question in this case: whether such testing can be

4632 UNITED STATES v. STOTERAU
used as a potential treatment tool for supervised release. Cf.

United States v. Dotson, 324 F.3d 256, 261 (4th Cir. 2003)

(the polygraph test is generally inadmissible at trial, but it

may be used as a treatment tool upon an offender’s release

from prison); see also United States v. Johnson, 446 F.3d 272,

278 (2d Cir. 2006) (“[P]olygraph results are inadmissible as

evidence. But that does not much bear on the therapeutic

value of the tool . . . .”). Under Daubert, a court must determine that proposed scientific testimony is both reliable and

relevant. 509 U.S. at 597. However, a condition of supervised

release need only be “reasonably related to the goal of deterrence, protection of the public, or rehabilitation of the

offender, and involve no greater deprivation of liberty than is

reasonably necessary.” Rearden, 349 F.3d at 618 (internal

quotation marks omitted). The district court could reasonably

conclude that the Abel test has value in rehabilitation and protection of the public as part of a treatment program for assessing a sex offender’s interest in children. See Weber, 451 F.3d

at 567 (noting that “[o]ne researcher . . . has deemed Abel

testing to be a ‘promising development’ ”); see also Birdsbill,

243 F. Supp. 2d at 1135 (noting another study concluding that

the “ ‘Abel Assessment has promise and deserves to be tried

in the field’ ”) (quoting Richard B. Krueger, John M. W.

Bradford, and Graham D. Glancy, The Abel Assessment for

Sexual Interest - A Brief Description, 26 J. Am. Acad. Psychiatry Law 279 (1998)). Accordingly, we conclude that the district court did not abuse its discretion in imposing Abel testing

as part of Condition 12. 

C

[16] Condition 13 states: 

As directed by the Probation Officer, the defendant

shall pay all or part of the costs of treating the defendant’s psychological or psychiatric disorder and/or

sex offender treatment to the aftercare contractor

during the period of community supervision, pursuUNITED STATES v. STOTERAU 4633
ant to 18 U.S.C. § 3672. The defendant shall provide

payment and proof of payment as directed by the

Probation Officer.

Stoterau argues that this condition violates § 3672, which in

his view entrusts the district court with a non-delegable power

to make the defendant pay for the costs of his treatment as

part of his supervised release.10 Therefore, Stoterau reasons,

the district court abused its discretion in delegating that power

to the probation officer. Stoterau did not object to the imposition of this condition before the district court, and we therefore review it for plain error. See United States v. Ortiz, 362

F.3d 1274, 1278 (9th Cir. 2004). We have previously held that

district courts do not abuse their discretion when they impose

conditions of supervised release that delegate to the probation

officer the power to direct the defendant to pay some or all of

the costs of treatment. See United States v. Soltero, 510 F.3d

858, 864 (9th Cir. 2007); see also United States v. Dupas, 419

F.3d 916, 924 (9th Cir. 2005) (rejecting the same challenge on

plain error review). Following Soltero and Dupas, we conclude that the district court did not plainly err in imposing this

condition as part of Stoterau’s term of supervised release. 

D

Condition 15 states: “The defendant shall not own, use, or

have access to the services of any commercial mail-receiving

agency. Nor shall he open or maintain a post office box without the prior written approval of the Probation Officer.” Stoterau argues that this condition is not reasonably related to the

goals of supervised release specified in 18 U.S.C. § 3583(d).

1018 U.S.C. § 3672 details the “Duties of Director of Administrative

Office of the United States Courts.” In relevant part, it provides: 

Whenever the court finds that funds are available for payment by

or on behalf of a person furnished [rehabilitative] services, training, or guidance, the court may direct that such funds be paid to

the Director.” 

4634 UNITED STATES v. STOTERAU
In particular, he argues that nothing in the record ties his

crime to the use of the mail. 

[17] Supervised release conditions need not relate to the

offense for which the defendant was convicted as long as they

satisfy the requirements of 18 U.S.C. § 3583(d). United States

v. T.M., 330 F.3d 1235, 1240 (9th Cir. 2003). Condition 15

meets the criteria set forth in 18 U.S.C. § 3583(d) for permissible conditions of supervised release. First, it is reasonably

related to the goal of specific deterrence. 18 U.S.C.

§ 3583(d)(1). The mail and the Internet are both channels for

the transmission of child pornography. See, e.g., United States

v. Fellows, 157 F.3d 1197, 1199 (9th Cir. 1998) (defendant

received child pornography through the mail and through the

Internet). Commercial mail services allow customers to

receive mail at non-residential locations. So do post office

boxes. It is reasonable to infer that people may choose to

receive mail at non-residential locations when they are

attempting to conceal their identity. Second, this condition

does not impose a “greater deprivation of liberty than is reasonably necessary” as required by § 3583(d)(2), because Stoterau will still have unencumbered access to the mail through

his residential address and has the option of utilizing a P.O.

box with prior approval from his probation officer. Accordingly, the district court did not abuse its discretion in imposing this condition. 

E

Condition 17 states: 

The defendant shall not associate or have verbal,

written, telephonic, or electronic communication

with any person under the age of 18, except: a) in the

presence of the parent or legal guardian of said

minor; and b) on the condition that the defendant

notify said parent or legal guardian of his conviction

in the instant offense. 

UNITED STATES v. STOTERAU 4635
Stoterau argues that the notification prong of this condition is

unnecessary, given the required presence of the parent during

any and all allowed communications. 

[18] We have previously upheld a condition which ordered

a sex offender to “not have contact with children under the

age of 18 unless approved by [his] probation officer.” United

States v. Bee, 162 F.3d 1232, 1235 (9th Cir. 1998) (internal

quotation marks omitted) (alteration in original). Like the

condition in Bee, Condition 17 comports with the requirements of 18 U.S.C. § 3583(d) because it promotes Stoterau’s

rehabilitation, deters him from committing future crimes, and

protects the public. Moreover, contrary to Stoterau’s assertion, the notification prong of Condition 17 is reasonably

related to the goals of supervised release. Parents may watch

their children more closely depending on the company they

keep. The notification prong of Condition 17 enables parents

to exercise the appropriate level of vigilance in monitoring

interactions between their children and Stoterau. Because the

notification requirement alerts parents to a possible threat, it

is reasonably related to the goals of rehabilitation, deterrence,

and protection of the public pursuant to 18 U.S.C. § 3583(d).

F

Condition 18 states that “[t]he defendant shall not affiliate

with, own, control, volunteer or be employed in any capacity

by any business or organization that causes him to regularly

contact persons under the age of 18.” Condition 19 provides

that “[t]he defendant shall not affiliate with, own, control, or

be employed in any capacity by any business whose principal

product is the production or selling of materials depicting or

describing ‘sexually explicit conduct’ as defined at 18 U.S.C.

§ 2256(2).”

11 Stoterau objects to the effect these conditions

will have on his choice of future occupations. 

11The general definition of “sexually explicit conduct” under 18 U.S.C.

§ 2256(2) is: 

4636 UNITED STATES v. STOTERAU
[19] Like other special conditions, occupational restrictions

must comport with the requirements of 18 U.S.C. § 3583(d).

In addition, the Guidelines provide for heightened scrutiny of

occupational restrictions which impinge upon a defendant’s

“specified occupation, business, or profession.” U.S.S.G.

§ 5F1.5. 

We have previously indicated that a “specified occupation”

as used in § 5F1.5 refers to the defendant’s profession or

occupation prior to the instant conviction. See Rearden, 349

F.3d at 622 (explaining that § 5F1.5 was not triggered because

the restriction did not prohibit the defendant from working “in

his previous profession as an art director or set decorator”);

see also United States v. Paul, 274 F.3d 155, 171 n. 18 (5th

Cir. 2001) (holding that if the defendant’s “primary means of

supporting himself” were involved, then he would be entitled

to the higher level of scrutiny for occupational restrictions

under § 5F1.5). 

[20] Moreover, the plain text of § 5F1.5 supports the interpretation that the provision applies only to restrictions on the

specific occupation or occupations held by the defendant prior

to conviction. In order to impose a restriction pursuant to

§ 5F1.5, the court must determine that a “reasonably direct

relationship existed between the defendant’s occupation . . .

and the conduct relevant to the offense of conviction.”

actual or simulated — 

(i) sexual intercourse, including genital-genital, oralgenital, anal-genital, or oral-anal, whether between persons

of the same or opposite sex; 

(ii) bestiality; 

(iii) masturbation; 

(iv) sadistic or masochistic abuse; or 

(v) lascivious exhibition of the genitals or pubic area of

any person[.] 

UNITED STATES v. STOTERAU 4637
U.S.S.G. § 5F1.5(a)(1). The reference to “the defendant’s

occupation” indicates that a district court must consider the

specific occupation or occupations held by the defendant subject to the sentencing proceeding, rather than speculate about

the range of options for employment that might be available

to the defendant in the future. We therefore conclude that

§ 5F1.5 applies only to the “specified occupation, business, or

profession” held by the defendant prior to conviction. 

[21] U.S.S.G. § 5F1.5 is not applicable here. The PSR

described Stoterau’s numerous unspecified brief periods of

employment in the customer service field beginning in 1997

and continuing until 2001. The PSR also reported Stoterau’s

work as a singer and indicated that he previously toured with

the group “Up With People” from 1998 to 1999. Because Stoterau was not in the business of producing depictions or

descriptions of sexually explicit conduct, the condition prohibiting him from working in this area does not qualify as an

occupational restriction under § 5F1.5. See Rearden, 349 F.3d

at 622. Likewise, the record does not indicate that Stoterau

ever pursued an occupation which brought him into regular

contact with minors. Accordingly, the condition prohibiting

Stoterau from working in such an environment does not

amount to an occupational restriction under § 5F1.5. See id.

Because § 5F1.5 is not applicable, the district court was not

obliged to make the findings required by that section. 

[22] We next consider Stoterau’s claims that Condition 18

violates 18 U.S.C. § 3583(d) and is overbroad. Like Condition

17, Condition 18 limits Stoterau’s interactions with minors in

order to forestall the possibility that he will offend again.

Given the predatory nature of Stoterau’s offense conduct,

such limitations are reasonably related to the goals of deterrence, rehabilitation, and protection of the public. 18 U.S.C.

§ 3583(d)(1). Nor does Condition 18 impose a “greater deprivation of liberty than is reasonably necessary” to further these

goals. 18 U.S.C. § 3583(d)(2). Stoterau is not precluded from

resuming his work as a singer or a customer service represen4638 UNITED STATES v. STOTERAU
tative, so long as he does not do so in environments which

regularly include minors. For much the same reasons, we conclude that Condition 18 is not overbroad. “[E]ven very broad

conditions are reasonable if they are intended to promote the

probationer’s rehabilitation and to protect the public.” Bee,

162 F.3d at 1236. Condition 18 meets these goals. Moreover,

we upheld a condition of similar breadth in Bee. Id. at 1235

(directing a defendant, who had sexually abused a minor, not

to “have contact with children under the age of 18 unless

approved by [his] probation officer”) (internal quotation

marks omitted) (alteration in original). Accordingly, we conclude that Condition 18 is consistent with § 3583(d) and not

overbroad. 

A similar analysis leads to the conclusion that Condition 19

is consistent with § 3583(d) and reasonable in breadth. We

have previously held that a defendant’s access to sexually

explicit materials may be restricted in order to reasonably further the goals of supervised release. In Bee, we affirmed the

district court’s imposition of a condition prohibiting the possession of sexually explicit material in a case where the defendant was convicted of sexual abuse of a minor. Id. In

Rearden, a case concerning a defendant convicted of shipping

child pornography, we concluded that the district court “did

not plainly err in limiting [the defendant’s] possession of

materials depicting sexually explicit conduct because the condition furthered the goals of rehabilitating him and protecting

the public.” 349 F.3d at 620. Condition 19 is similarly consistent with the requirements of 18 U.S.C. § 3583(d). By limiting

Stoterau’s exposure to materials depicting sexually explicit

conduct, this condition decreases the likelihood that Stoterau

will commit a similar sex offense in the future. 

Stoterau also contends that Condition 19 is overbroad

because it would prevent him from working for businesses

that produce legal adult pornography as well as nonpornographic materials which include depictions or descriptions of simulated sexual acts or nudity. We reject this overUNITED STATES v. STOTERAU 4639
breadth argument, given our conclusion that Condition 19

meets the goals of § 3583. See Bee, 162 F.3d at 1236. Moreover, our precedent forecloses Stoterau’s argument that the

phrase “sexually explicit conduct” is vague and overbroad. In

Rearden, 349 F.3d at 620, we concluded that the district court

did not plainly err in imposing a special condition that the

defendant not possess any materials depicting sexually

explicit conduct as defined in 18 U.S.C. § 2256(2), notwithstanding the defendant’s contentions that the condition was

vague and overbroad. And in Antelope, 395 F.3d at 1142, we

noted that the condition imposed in Rearden “passed constitutional muster.” 

[23] In sum, we conclude the district court did not abuse its

discretion in imposing Condition 18 and Condition 19. They

do not trigger the heightened findings required by U.S.S.G.

§ 5F1.5, they comport with the requirements of 18 U.S.C.

§ 3583(d), and they are not overbroad. 

G

Stoterau challenges the district court’s authorization of the

Probation Officer “to disclose the Presentence Report and/or

any previous mental health evaluations or reports to the treatment provider.” The court further allowed that “[t]he treatment provider may provide information, excluding the

Presentence Report, to State or local social service agencies,

such as the California Department of Social Services, for the

purpose of the defendant’s rehabilitation.” 

[24] Stoterau contends that this authorization violates the

psychotherapist-patient privilege recognized in Jaffee v. Redmond, 518 U.S. 1, 15 (1996) (holding that “confidential communications between a licensed psychotherapist and her

patients in the course of diagnosis or treatment are protected

from compelled disclosure under Rule 501 of the Federal

Rules of Evidence”). Stoterau’s claim is foreclosed by United

States v. Lopez, 258 F.3d 1053, 1057 (9th Cir. 2001), where

4640 UNITED STATES v. STOTERAU
we explained that the psychotherapist-patient evidentiary

privilege is “beside the point of a supervised release condition.” The district court could reasonably conclude that the

limited disclosure of Stoterau’s PSR and mental health evaluations was necessary to facilitate his treatment and successfully monitor his reintegration into society following his

release from prison. See id. Accordingly, the district court did

not abuse its discretion in authorizing the limited disclosure

of Stoterau’s PSR and mental health records. 

V

Stoterau next argues that the district court violated Rule

32(i)(3)(B) of the Federal Rules of Criminal Procedure by

failing to rule on Stoterau’s objection that several paragraphs

of his PSR included facts based on unreliable hearsay. “This

court reviews de novo the district court’s compliance with

Rule 32.” United States v. Herrera-Rojas, 243 F.3d 1139,

1142 (9th Cir. 2001). “If the district court fails to make the

required Rule 32 findings or determinations at the time of sentencing, the sentence must be vacated and the defendant

resentenced.” Id. (internal quotation marks omitted). 

Rule 32(i)(3)(B) provides that at sentencing a court “must

— for any disputed portion of the presentence report or other

controverted matter — rule on the dispute or determine that

a ruling is unnecessary either because the matter will not

affect sentencing, or because the court will not consider the

matter in sentencing.” Only specific factual objections trigger

Rule 32(i)(3)(B). See United States v. Saeteurn, 504 F.3d

1175, 1181 (9th Cir. 2007) (holding that Rule 32(i)(3)(B) “is

limited to factual disputes which affect the temporal term of

the sentence the district court imposes”); United States v.

Lindholm, 24 F.3d 1078, 1085 n.7 (9th Cir. 1994) (holding

that Rule 32(c)(3)(D), Rule 32(i)(3)(B)’s predecessor, “only

UNITED STATES v. STOTERAU 4641
applies to factual inaccuracies, not to recommendations, opinions or conclusions not factual in nature”).12

[25] In his sentencing position memorandum, Stoterau

challenged several paragraphs of his PSR on the ground that

the information gathered from police reports contained multiple levels of unreliable hearsay. Stoterau did not deny that the

police reports contained the information alleged in the PSR or

that the information was factually inaccurate. Instead, he

argued that law enforcement reports are not generally a reliable source of accurate information. This challenge is not a

specific factual dispute about issues affecting the temporal

term of sentence but rather a general evidentiary legal challenge to the inclusion of information in the PSR drawn from

sources other than the plea agreement. Accordingly, the district court did not violate Rule 32(i)(3)(B) by not ruling on

Stoterau’s objection. 

VI

Stoterau filed a motion requesting that this disposition be

filed under seal, or, in the alternative, that a pseudonym be

used in place of his name. Stoterau argues that the dissemination of information regarding the nature of his offense could

endanger his personal safety in prison. 

[26] “While we deliberate in private, we recognize the fundamental importance of issuing public decisions after public

arguments based on public records.” Doe v. United States

(Doe I), 253 F.3d 256, 262 (6th Cir. 2001) (internal quotation

marks omitted). Accordingly, “[a]ny step that withdraws an

element of the judicial process from public view makes the

ensuing decision look more like fiat, which requires compel12Rule 32(i)(3)(B) is a narrower version of its predecessor, Rule

32(c)(3)(D). “The Advisory Committee amended the Rule in part to make

clear that the rule applies only to factual disputes which affect the temporal term of sentence.” Saeteurn, 504 F.3d at 1179 n.10. 

4642 UNITED STATES v. STOTERAU
ling justification.” Union Oil Co. of Cal. v. Leavell, 220 F.3d

562, 568 (7th Cir. 2000). Beyond his stated interest in concealing his identity, Stoterau does not provide a justification

for his request that this entire disposition be filed under seal.

We therefore deny Stoterau’s motion to file this disposition

under seal. Decisions of this court are a matter of public

record, and the circumstances of Stoterau’s case are not sufficiently exceptional so as to warrant a departure from this general rule. See United States v. Mentzos, 462 F.3d 830, 843 n.4

(8th Cir. 2006). 

Stoterau’s request for a pseudonym presents a closer question. As a general rule, “the identity of the parties in any

action, civil or criminal, should not be concealed except in an

unusual case, where there is a need for the cloak of anonymity.” United States v. Doe (Doe II), 488 F.3d 1154, 1156 n.1

(9th Cir. 2007); see also United States v. Doe (Doe III), 655

F.2d 920, 922 n.1 (9th Cir. 1981) (granting a request for use

of a pseudonym in an “unusual case” where criminal defendant was a government informant who, the parties agreed,

would have “faced a risk of serious bodily harm if his role on

behalf of the government were disclosed to other inmates”).

In the unusual case, we consider whether pseudonymity is

“necessary to protect a person from injury or harassment.”

Doe II, 488 F.3d at 1156 n.1. We must then “balance the need

for anonymity against the general presumption that parties’

identities are public information.” Does I thru XXIII v.

Advanced Textile Corp., 214 F.3d 1058, 1068 (9th Cir. 2000)

(applying this balancing test to the specific context of a civil

employment retaliation claim). 

Stoterau argues that he presents an unusual case in which

there is a need for anonymity because sex offenders such as

Stoterau face an elevated risk of violent abuse in prison. However, because this concern is equally present for all similarly

situated sex offenders who face prison sentences, we cannot

say that Stoterau’s case is unusual. Indeed, in the sentencing

context, courts have rejected the argument that “mere memUNITED STATES v. STOTERAU 4643
bership in a class of offenders that may be targeted by other

inmates” is sufficient to make a defendant’s case extraordinary. United States v. Kapitzke, 130 F.3d 820, 822 (8th Cir.

1997) (reversing a downward departure for susceptibility to

abuse in prison that was based on the defendant’s status as a

child pornographer); see also United States v. Parish, 308

F.3d 1025, 1032 (9th Cir. 2002) (upholding a departure where

the district court did not rely solely on the defendant’s “mere

membership in a class of offenders”) (internal quotation

marks omitted). Inmates may face a heightened risk of abuse

in prison for a range of reasons (for example, membership in

a gang, membership in an ethnic group, or sexual orientation),13

and it is prison officials who have the primary responsibility

to “take reasonable measures to guarantee the safety of the

inmates” and to “protect prisoners from violence at the hands

of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 832-33

(1994) (internal quotation marks omitted). If the nature of

Stoterau’s offense alone could qualify him for the use of a

pseudonym, there would be no principled basis for denying

pseudonymity to any defendant convicted of a similar sex

offense. Such a significant broadening of the circumstances in

which we have permitted pseudonymity is contrary to our

long-established policy of upholding “the public’s common

law right of access to judicial proceedings,” Does I thru

XXIII, 214 F.3d at 1067, and contrary to our requirement that

pseudonymity be limited to the “unusual case.” Doe II, 488

F.3d at 1156 n.1. 

Moreover, Stoterau has not shown that his need for anonymity outweighs “the public’s interest in knowing the

party’s identity.” Does I thru XXIII, 214 F.3d at 1068. We

question the value that pseudonymity would have for Stoterau

at this point. Stoterau’s conviction is a matter of public

13See, e.g., Wilkinson v. Austin, 545 U.S. 209, 227 (2005) (discussing

the problem of racially-based gang violence in prisons); Farmer v. Brennan, 511 U.S. 825, 829-30 (1994) (considering the case where a transsexual prisoner was sexually and physically abused in prison). 

4644 UNITED STATES v. STOTERAU
record, and many of the documents in his case were not submitted under seal. Therefore, the use of a pseudonym in this

disposition will have limited effect in concealing the fact that

Stoterau was convicted of transporting child pornography. On

the other hand, “[i]dentifying the parties to the proceeding is

an important dimension of publicness. The people have a right

to know who is using their courts.” Doe v. Blue Cross & Blue

Shield United of Wis., 112 F.3d 869, 872 (7th Cir. 1997).

Under these circumstances, the interest “weighing in favor of

open judicial proceedings” outweighs the low value of pseudonymity at this point in Stoterau’s proceedings. Does I thru

XXIII, 214 F.3d at 1069. 

[27] In sum, our precedents dictate that we grant criminal

defendants a pseudonym only in the “unusual case, where

there is a need for the cloak of anonymity.” Doe II, 488 F.3d

at 1156 n.1 (internal quotation marks omitted). Stoterau has

not succeeded in showing that his case qualifies under this

standard. The concern animating Stoterau’s request for anonymity is equally present for all similarly situated sex offenders, and the value of anonymity to Stoterau at this point in the

proceedings is outweighed by the public interest “weighing in

favor of open judicial proceedings.” Does I thru XXIII, 214

F.3d at 1069. We therefore deny Stoterau’s motion to use a

pseudonym in place of his name.14

VII

In conclusion, we hold that the district court did not err in

applying a two-level enhancement pursuant to U.S.S.G.

§ 2G2.1(b)(2)(A). We hold the district court did not abuse its

discretion in sentencing Stoterau to a 151-month term of

14We have used the name “John Doe” throughout this opinion as a

pseudonym to protect the identity of the then 14-year-old victim. See

United States v. Cunningham, 405 F.3d 497, 499 n.1 (7th Cir. 2005). Doe

is not a party to this case and we use a pseudonym in deference to his privacy interests. 

UNITED STATES v. STOTERAU 4645
imprisonment. With one exception, we hold that the district

court did not abuse its discretion in imposing certain special

conditions on Stoterau’s term of supervised release. We hold

that the district court was not obliged by Rule 32 of the Federal Rules of Criminal Procedure to rule on Stotearu’s evidentiary challenge to the information contained in his PSR. We

deny Stoterau’s motion to file this disposition under seal, and

we decline to use a pseudonym in place of his name. 

Because the use of the word “pornography” in Condition

11 made that condition impermissibly vague, we vacate the

condition and remand for the district court to impose a condition with greater specificity.

AFFIRMED IN PART, VACATED IN PART, AND

REMANDED.

4646 UNITED STATES v. STOTERAU