[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 15-11921

Non-Argument Calendar

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D.C. Docket No. 3:05-cr-00114-HLA-MCR-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

versus

JOHN J. TULIP, 

a.k.a. John J. Tulip, III, 

 Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Middle District of Florida

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(October 14, 2015)

Before HULL, ROSENBAUM, and JULIE CARNES, Circuit Judges.

PER CURIAM: 

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Defendant John Tulip appeals the district court’s modification of his 

supervised release conditions to include participation in a mental health program 

specializing in sex offender treatment. Defendant argues on appeal that the district 

court abused its discretion in adding this supervised release condition because it 

did not consider whether Defendant’s participation in sex offender treatment would 

improve the odds of his successful transition back into community life or make 

him less of a risk to the public. After careful review, we affirm. 

I. BACKGROUND 

A. Original Criminal Proceedings and Sentencing 

In April 2006, Defendant pled guilty to inducing a minor to engage in 

sexually explicit conduct to produce child pornography and transporting child 

pornography in foreign commerce, in violation of 18 U.S.C. §§ 2251(a) and 

2252(a)(1), respectively. These convictions stemmed from Defendant having 

convinced a German mother (through the internet, a telephone call, and one visit to 

the United States) to allow her ten-year old son to come live with Defendant in 

Florida based on Defendant’s suggestion that it would be in the child’s best interest 

to get an education in the United States. Sadly for the boy, Defendant was actually 

interested in sexually exploiting him. In fact, after the boy began living with 

Defendant, the latter either enticed or coerced him to pose nude in a sexually 

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explicit way while Defendant took photographs. Defendant then sent these 

photographs via the internet to a computer in Germany. 

The district court sentenced Defendant to 135 months’ imprisonment—the 

low end of his applicable guideline—followed by three years’ supervised release. 

In addition to imposing the standard conditions of supervised release, the court also 

imposed several special conditions, including that Defendant participate in a 

mental health program as directed by the probation officer and that Defendant not 

be allowed computer or internet access without approval from the probation 

officer. Defendant did not appeal his conviction or sentence. 

B. Motions to Modify Terms and Conditions of Supervised Release

In January 2013, while still incarcerated, Defendant filed a pro se motion to 

modify the terms and conditions of supervised release. He asked the district court 

to delete the condition prohibiting the use of a computer or accessing the internet 

without approval from the probation officer. He argued that such restriction was 

no longer necessary to protect the victim of his crimes or the public because he had 

been rehabilitated, as evidenced by his exceptionally good behavior while in 

prison, and had completed training to become a successful stock day trader. He 

further explained that he would need internet access with minimal or no spyware to 

be able to engage in his intended occupation as a day trader and the computer 

restriction would hamper his ability to pursue that line of work. The Government 

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opposed this motion, questioning why Defendant had concentrated his 

rehabilitation efforts in an area that required access to computers, when Defendant 

well knew his computer use would be restricted. The district court denied this 

motion, and Defendant did not appeal. 

Shortly before Defendant’s release from prison, his probation officer 

petitioned the district court to modify the terms and conditions of Defendant’s 

supervised release to require him to participate “in a mental health program 

specializing in sex offender treatment approved by the probation officer.” The 

probation officer asserted that this modification was necessary because of the 

nature and circumstances of the offense, Defendant’s history and characteristics, 

the need to protect the public from future crimes by Defendant, and to provide 

correctional treatment. Specifically, the probation officer noted that Defendant had 

denied to his Bureau of Prisons’ case manager that he had committed the offense 

of conviction, but rather asserted that the boy had taken the naked pictures himself 

and then used Defendant’s email to send the pornographic pictures over the 

internet. The probation officer further noted that, while imprisoned, Defendant had 

initially expressed interest in sex offender treatment, leading to his transfer to a 

lower security prison. But upon arrival at the lower security prison, Defendant 

refused any treatment, stating that he had only agreed to treatment in order to get 

the transfer. Additionally, while incarcerated, Defendant had befriended two 

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convicted sex offenders and provided false information to his case manager in an 

effort to relocate to Nevada upon his release, specifically claiming that he would 

be residing with a “cousin,” when in fact that person had no familial relationship 

with Defendant and never returned the probation officer’s calls about arranging for 

a home inspection. 

At the hearing on the above motion for modification of the conditions of 

supervised release, Defendant contested the district court’s authority to modify the 

conditions of supervised release, given that Defendant had not yet committed a 

supervised release violation. Further, he asserted that 18 U.S.C. § 3583 only 

allowed for modification of the supervised release condition if modification was

related to the initial conditions and argued that psychosexual counseling was not 

related to the court’s condition requiring mental health treatment. The 

Government argued that § 3583(e)(2) allowed for modification at any time prior to 

the expiration or termination of supervised release and that, at any rate,

psychosexual counseling was a provision applicable to the initial conditions 

because it is a type of mental health treatment. 

The district court granted the motion and modified Defendant’s conditions

of supervised release to require him to participate “in a mental health program 

specializing in sex offender treatment approved by the probation officer.” It 

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concluded that such a condition was reasonably related to Defendant’s history and 

characteristics, his need for treatment, and the need to protect the public from him. 

II. DISCUSSION

In support of his position that the modification of conditions was improper, 

Defendant advances on appeal a different argument than the one he made before 

the district court. Specifically, he now argues that the court abused its discretion in 

modifying the conditions of his supervised release to include sex offender 

treatment because the court failed to consider whether such treatment was 

necessary to facilitate his transition back into society, which is the primary goal of 

supervised release, and there was no evidence that it would facilitate this transition. 

We generally review the district court’s decision on a motion to modify the 

conditions of supervised release for abuse of discretion. See United States v. 

Serrapio, 754 F.3d 1312, 1318 (11th Cir. 2014) (reviewing modification of 

conditions of probation, under 18 U.S.C. § 3563, for an abuse of discretion); 

United States v. Zinn, 321 F.3d 1084, 1087 (11th Cir. 2003) (noting that we review 

the district court’s sentence of supervised release for abuse of discretion). 

However, where a defendant raises a sentencing argument for the first time on 

appeal, we review for plain error. United States v. Heath, 419 F.3d 1312, 1314 

(11th Cir. 2005) (reviewing an unpreserved argument as to modification of 

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supervised release for plain error); United States v. Aguillard, 217 F.3d 1319, 1320 

(11th Cir. 2000). 

The plain error standard is applicable here because Defendant did not raise 

in the district court the specific issue he now raises here. There is a difference 

between arguing, as Defendant did before the district court, that the court lacked 

the authority to modify the conditions of supervised release and arguing, as he does 

now, that the court abused its discretion in imposing the particular modified 

condition because it had failed to consider a particular fact or factor. Under plain 

error review, we will reverse where there is “(1) an error (2) that is plain and (3) 

that has affected the defendant’s substantial rights; and . . . (4) the error seriously 

affects the fairness, integrity, or public reputation of judicial proceedings.” United 

States v. Madden, 733 F.3d 1314, 1322 (11th Cir. 2013). “An error is not plain 

unless it is contrary to explicit statutory provisions or to on-point precedent in this 

Court or the Supreme Court.” United States v. Schultz, 565 F.3d 1353, 1357 (11th 

Cir. 2009). 

Pursuant to § 3583, after the consideration of certain 18 U.S.C. § 3553(a) 

factors,1 a district court may 

 1

 The § 3553(a) factors to be considered in modifying the conditions of supervised release 

include: (1) the nature and circumstances of the offense; (2) the defendant’s history and 

characteristics; (3) the need to provide adequate deterrence; (4) the need to protect the public; 

(5) the need to provide the defendant with educational or vocational training, medical care, or 

other correctional treatment; (6) the kinds of sentence and the sentencing range established for 

the defendant’s offense, (7) any pertinent policy statements; (8) the need to avoid unwarranted 

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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 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 postrelease supervision. 

18 U.S.C. § 3583(e)(2). Rule 32.1 of the Federal Rules of Criminal Procedure 

requires that, before modifying the conditions of supervised release, the district 

court must first hold a hearing at which the individual has the right to counsel and 

an opportunity to make a statement and present any mitigating information. 

Fed.R.Crim.P. 32.1(c)(1). 

In imposing (or modifying) a term of supervised release, the district court 

may order special conditions that: (1) are reasonably related to the nature and 

circumstances of the offense, history and characteristics of the defendant, the need 

for adequate deterrence, the need to protect the public, and the need to provide the 

defendant with needed training, medical care, or correctional treatment in an 

effective manner; (2) involve no greater deprivation of liberty than is reasonably 

necessary; and (3) are consistent with any pertinent policy statements issued by the 

sentencing commission. 18 U.S.C. § 3583(d)(1)-(3); see also U.S.S.G. § 5D1.3(b). 

The special conditions need not be related to each applicable § 3553(a) factor; 

rather, each factor is an independent consideration to be weighed. United States v. 

 

sentence disparities; and (9) the need to provide restitution. 18 U.S.C. §§ 3553(a)(1), (a)(2)(B)-

(D), (a)(4)-(7) and 3583(e)(2).

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Bull, 214 F.3d 1275, 1278 (11th Cir. 2000). When a defendant has been convicted 

of a “sex offense,” the Sentencing Commission recommends that the district court 

impose as a special condition the requirement that the defendant “participate in a 

program approved by the United States Probation Office for the treatment and 

monitoring of sex offenders.” U.S.S.G. § 5D1.3(d)(7)(A), p.s. 

Defendant has failed to demonstrate that the district court plainly erred when 

it modified his conditions of supervised release to include a mental health program 

specializing in sex offender treatment. The district court is statutorily allowed to 

modify the conditions of supervised release after holding a hearing as required by 

Rule 32.1, considering certain § 3553(a) factors, and ensuring that the modified 

conditions are consistent with the requirements applicable to all conditions of 

supervised release. See 18 U.S.C. § 3583(e)(2). The district court did just that in 

this case. Specifically, after a hearing, the court identified Defendant’s history and 

characteristics, his need for treatment, and the public’s need to be protected from 

him as the § 3553(a) factors supporting the court’s requirement that he participate 

in sex offender treatment. The court also determined that such a condition was 

consistent with the statutory purposes of sentencing. 

Upon review of the record in this case, we discern neither plain error nor an 

abuse of discretion in the district court’s imposition of the modified condition of 

supervised release. As to the former, Defendant has directed us to no on-point 

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precedent from this Court or the Supreme Court and to no explicit statutory 

provision that would have prohibited the district court’s decision. See Schultz, 565 

F.3d at 1357. As to whether the court abused its discretion, Defendant was 

convicted of a serious sex offense. He lured a child to his home, had the child get 

nude, photographed the child, and then electronically transmitted those images 

overseas.

2

 Sex offender treatment and monitoring is recommended by the 

Sentencing Guidelines for such an offense. See U.S.S.G. § 5D1.3(d)(7)(A), p.s. 

Defendant’s post-conviction behavior further indicates his continuing failure 

to accept responsibility for his crime and suggests little inclination on his part to 

mend his ways. While incarcerated, Defendant twice declined sex offender 

treatment. Then, he falsely denied that he had ever committed the sexual offense 

to which he pled guilty. Also while in prison, Defendant befriended other sex 

offenders. These actions, which relate to Defendant’s history and characteristics,

raise great concern about the need to protect the public from his future crimes. 

Defendant’s denial of responsibility for his admitted crimes weighs greatly against 

his potential rehabilitation and suggests a likelihood that he might commit further 

sex crimes from which the public needs to be protected. See McKune v. Lile, 536 

U.S. 24, 47 (2002) (recognizing in the context of sex-offender treatment, 

“[a]cceptance of responsibility is the beginning of rehabilitation”); United States v. 

 2

 In addition, the record reflects that, prior to sentencing, Defendant attempted to threaten and 

bribe the boy and his mother to prevent them from cooperating with authorities. 

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Moran, 573 F.3d 1132, 1139 (11th Cir. 2009) (noting that sex offender treatment 

could assist the defendant is avoiding similar misconduct, which would protect the 

public); United States v. Mercado, 777 F.3d 532, 537-38 (1st Cir. 2015) (noting 

that sex offender treatment has been linked to reduced recidivism and a condition 

requiring sex offender treatment was reasonably related to rehabilitation and 

protecting the public). In short, we conclude that the district court neither plainly 

erred nor abused its discretion in requiring that Defendant undergo mental health 

treatment that focused on treatment for sexual offenders. 

III. CONCLUSION

For all the above reasons, the district court’s modification of Defendant’s 

conditions of supervised release is AFFIRMED.

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