RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 12a0021p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

v.

BRANDON M. INMAN,

 Defendant-Appellant.

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No. 10-5702

Appeal from the United States District Court

for the Eastern District of Kentucky at London.

No. 08-00127-001—Gregory F. Van Tatenhove, District Judge.

Decided and Filed: January 26, 2012 

Before: DAUGHTREY, CLAY, and STRANCH, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Christopher C. Bazeley, Cincinnati, Ohio, for Appellant. Charles P.

Wisdom Jr., John Patrick Grant, ASSISTANT UNITED STATES ATTORNEYS,

Lexington, Kentucky, for Appellee. 

_________________

OPINION

_________________

PER CURIAM. Brandon Inman, a federal prisoner who pleaded guilty to

possession of child pornography, appeals from the district court’s judgment imposing

lifetime supervised release and certain conditions of supervised release. The parties

waived oral argument, and we unanimously agree that oral argument is not necessary.

Fed. R. App. P. 34(a). Because the district court did not articulate a rationale for the

length of supervised release and some of the conditions it imposed, we vacate the

judgment and remand for re-sentencing.

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No. 10-5702 United States v. Inman Page 2

Inman pleaded guilty to possession of child pornography in violation of 18

U.S.C. § 2252(a)(4)(B). Inman admitted possession of a computer thumb drive that he

knew contained many images of minors engaged in sexually explicit conduct.

At the sentencing hearing, the district court considered all of the sentencing

factors enumerated in 18 U.S.C. § 3553(a) before imposing a term of incarceration of

fifty-seven months. Although both parties requested a ten-year term of supervised

release, the court imposed a lifetime term of supervised release with standard and special

conditions.

Inman did not object below to the length or conditions of his supervised release,

so we limit our review to plain error. See United States v. Kingsley, 241 F.3d 828, 835

(6th Cir. 2001). Inman must show (1) an error, (2) that was obvious or clear, (3) that

affected his substantial rights, and (4) that affected the fairness, integrity, or public

reputation of his judicial proceedings. United States v. Gunter, 620 F.3d 642, 645 (6th

Cir. 2010). Ordinarily, where a challenge to supervised release is preserved, we consider

whether the district court abused its discretion in imposing special conditions. See

United States v. Brogdon, 503 F.3d 555, 563 (6th Cir. 2007). Under abuse of discretion

review, we first “determine whether the district court adequately stated in open court at

the time of sentencing ‘its rationale for mandating special conditions of supervised

release.’” Id. (quoting United States v. Carter, 463 F.3d 526, 529 (6th Cir. 2006)).

Next, we “determine whether the ‘condition of supervised release is reasonably related

to the dual goals of probation, the rehabilitation of the defendant and the protection of

the public.’” Id. (quoting United States v. Ritter, 118 F.3d 502, 504 (6th Cir. 1997)).

The condition must reasonably relate to the nature of the offense and the history and

characteristics of the defendant and “involve[] no greater deprivation of liberty than is

reasonably necessary” to serve the goals of deterrence, protecting the public, and

rehabilitating the defendant. 18 U.S.C. § 3583(d)(1)-(2); Brogdon, 503 F.3d at 564. The

condition must also be consistent with any pertinent policy statements issued by the

United States Sentencing Commission. 18 U.S.C. § 3583(d)(3). This analysis remains

helpful to us in determining whether plain error occurred in this case.
No. 10-5702 United States v. Inman Page 3

The applicable statute and guideline authorized a term of supervised release

ranging from five years to life. See 18 U.S.C. § 3583(k); USSG § 5D1.2(b). The

guideline also contains a policy statement in § 5D1.2(b) that provides: “If the instant

offense of conviction is a sex offense . . . the statutory maximum term of supervised

release is recommended.” Because “Congress insists that lifetime supervision be

available to courts in sentencing sexual offenders[,]” we upheld a term of lifetime

supervised release where the offender admitted he distributed child pornography, the

court found the offender posed a danger to the public, and the government requested the

lifetime term. United States v. Kennedy, 499 F.3d 547, 549, 553 (6th Cir. 2007). Under

18 U.S.C. § 3583(c), however, a district court must consider § 3553(a)

factors—specifically, § 3553(a)(1), (a)(2)(B), (C), & (D), and (a)(4) through (7)—in

determining the length of supervised release imposed.

The record does not demonstrate that the district court considered any of the

pertinent § 3553(a) factors when it imposed the term of supervised release, and the court

did not explain why it chose a life term of supervised release over the parties’

recommendation for a ten-year term. Without proper analysis and an explanation for the

length of the supervised release term chosen, we cannot review the reasonableness of the

sentence as imposed. See Kennedy, 499 F.3d at 553 (reviewing term of supervised

release for reasonableness). Therefore, we must remand so that the district court can

provide a more thorough analysis of the pertinent sentencing factors and an explanation

for the lifetime term of supervised release. We note that, should the district court on

remand decide to impose the ten-year term of supervised release recommended by the

Government, the governing statute allows the court to extend the term of supervised

release and to modify the conditions at any time prior to the term’s expiration if

circumstances warrant such an extension or modification. 18 U.S.C. § 3583(e)(2).

We also conclude that some of the supervised release conditions the district court

imposed require further analysis and explanation. First, we consider the requirements

for drug and alcohol testing. The court imposed a mandatory condition requiring Inman

to submit to drug testing within fifteen days of release from imprisonment and also to
No. 10-5702 United States v. Inman Page 4

submit to at least two periodic drug tests thereafter, as determined by the court. The

district court also imposed special conditions prohibiting Inman from consuming any

alcoholic beverages and requiring him to inform the probation office in writing of every

prescription medication in his possession, custody, or control upon his release from

prison and to notify his probation officer of any prescription medication received during

the period of supervised release, whether those medications contain controlled

substances or not.

Nothing in the record suggests that Inman has any problem with alcohol or drug

dependence; yet, he is now barred from consuming alcohol for life, required to submit

to periodic drug testing, and required to keep the probation office informed of any

prescription medications in his possession. Supervised release conditions must be

tailored to the specific case before the court. Where appropriate, the mandatory

condition of drug testing “may be ameliorated or suspended by the court for any

individual defendant if the defendant’s presentence report or other reliable sentencing

information indicates a low risk of future substance abuse by the defendant.” 18 U.S.C.

§ 3563(a)(5). Moreover, the pertinent statute on discretionary conditions does not permit

a total ban on alcohol, but allows a court to order the defendant to “refrain from

excessive use of alcohol.” 18 U.S.C. § 3563(b)(7) (emphasis added). Because Inman

appears to present a low risk of future substance abuse, the district court should explain

why these conditions of supervised release are warranted.

Next, we consider the special conditions imposed concerning the use of

computers, other electronic devices, and the rental or use of a post office box or storage

unit. The district court allowed Inman to have restricted access to computers, but

precluded him from using any device capable of creating pictures or video. This special

condition effectively prohibits Inman for his lifetime from possessing a cell phone with

photo or video capability, a video camera, or any other device capable of creating

pictures or videos, even if such devices might be used appropriately in connection with

employment or family activities. The court also prohibited Inman from renting or using

a post office box or storage facility. Because the record is silent, we question the reasons
No. 10-5702 United States v. Inman Page 5

for these restrictions, particularly where the underlying conviction involved receiving

child pornography through the Internet.

We believe there may be another option available to the district court to address

any concern that Inman might use electronic equipment, a post office box, or a storage

unit for improper or unlawful purposes. Where a defendant is required to register under

the Sex Offender Registration and Notification Act, the district court may impose a

special condition that the defendant submit to a search at any time of his “person and any

property, house, residence, vehicle, papers, computer, other electronic communication

or data storage devices or media and effects” conducted by a law enforcement officer or

a probation officer, with or without a warrant, if the officer has “reasonable suspicion

concerning a violation of a condition of [supervised release] or unlawful conduct by the

defendant” or “by any probation officer in the lawful discharge of the officer’s

supervision functions.” 18 U.S.C. §§ 3583(d) & 3563(b)(23). On remand the district

court may wish to consider whether the search provision is sufficient to alleviate any

concerns about Inman’s use of electronic equipment, a postal box, or a storage unit. We

recognize that the district court may find, after conducting an analysis of the pertinent

factors under § 3553(a) and § 3583(d), that the special conditions as originally imposed

are warranted. In either event, the district court should provide a sufficient explanation

for the special conditions imposed.

Finally, Inman also challenges the special condition requiring him to provide the

probation office with any requested personal financial information. Inman’s crime was

not financial in nature. We realize that Inman’s finances may give a probation officer

insight into whether Inman is involved in illegal conduct, but we cannot approve a

requirement that Inman disclose any and all financial information to the probation officer

without first reviewing the district court’s explanation as to why such a condition is

necessary in light of the pertinent sentencing factors.

Having concluded that the district court erred in certain respects, we must

determine whether those errors are clear or obvious. Gunter, 620 F.3d at 645. A

sentence that is not adequately explained is procedurally erroneous. See Rita v. United
No. 10-5702 United States v. Inman Page 6

States, 551 U.S. 338, 357 (2007). In an analogous case, the Ninth Circuit determined

that the district court clearly erred in imposing a supervised release term of life without

giving an adequate explanation. United States v. Mota, 434 F. App’x 636, 639 (9th Cir.

2011). Furthermore, our precedent clearly requires a district court to “state[] in open

court at the time of sentencing its rationale for mandating special conditions of

supervised release.” Brogdon, 503 F.3d at 563 (internal quotation marks and citation

omitted). Accordingly, we conclude that the district court’s errors are clear.

The error must also affect Inman’s substantial rights. See Gunter, 620 F.3d at

645. An error affects substantial rights when it “affect[s] the outcome of the district

court proceedings.” United States v. Olano, 507 U.S. 725, 734 (1993). Sentencing

errors meet this criterium where there is a reasonable likelihood the errors impacted the

sentence. See United States v. Abbouchi, 502 F.3d 850, 858 (9th Cir. 2007) (explaining

that failure to consider adequately the rationale for a supervised release condition affects

defendant’s “substantial rights”); cf. United States v. Swanberg, 370 F.3d 622, 629–30

(6th Cir. 2004) (holding that defendant’s substantial rights were affected where error led

to a more severe sentence). The district court’s imposition of a lifetime term of

supervised release—despite the parties’ recommendation for ten years—and the

imposition of the challenged supervised release conditions without providing an

adequate rationale affected Inman’s substantial rights. See United States v. PerazzaMercado, 553 F.3d 65, 79 (D.C. Cir. 2010) (“[T]here is a reasonable probability that the

court might not have imposed the prohibition if it had fulfilled its obligation to explain

the basis for the condition or at least made sure that the record illuminated the basis for

the condition.”).

Finally, the error seriously affected the fairness, integrity, or public reputation

of judicial proceedings. Gunter, 620 F.3d at 645. A sentencing error that leads to a

“more severe sentence . . . would diminish the integrity and public reputation of the

judicial system [and] also would diminish the fairness of the criminal sentencing

system.” United States v. Oliver, 397 F.3d 369, 380 (6th Cir. 2005) (internal quotation

marks and citation omitted); United States v. Barsumyan, 517 F.3d 1154, 1162 (9th Cir.
No. 10-5702 United States v. Inman Page 7

2008) (vacating supervised release condition on plain error review). Because both the

length of supervised release and the conditions imposed are likely more severe than if

the district court had followed the correct procedures, the district court’s errors seriously

affect the fairness, integrity, or public reputation of the proceedings.

For the reasons stated, we VACATE the district court’s judgment imposing

supervised release with conditions and we REMAND for further proceedings consistent

with this opinion. On remand, we direct the district court to consider the lifetime term

of supervised release and the following conditions of supervised release: the

requirements for mandatory drug testing, to notify the probation office and provide

documentation of any prescription medication, and to provide the probation office with

access to any personal financial information, as well as the prohibitions against

consuming any alcoholic beverages, possession or use of a device capable of creating

pictures or video, and renting or using a post office box or a storage facility.