FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 07-50242 Plaintiff-Appellee,

D.C. No.

v.  CR-06-00096-SGL

HARRY JOHN DANIELS,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Central District of California

Stephen G. Larson, District Judge, Presiding

Argued and Submitted

March 6, 2008—Pasadena, California

Filed August 29, 2008

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

Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Wallace

11985
COUNSEL

Sean K. Kennedy, Federal Public Defender, and Kathryn A.

Young, Deputy Federal Public Defender, Los Angeles, California, for the defendant-appellant. 

UNITED STATES v. DANIELS 11989
Thomas P. O’Brien, United States Attorney, Christine C.

Ewell and Joseph N. Akrotirianakis, Assistant United States

Attorneys, Los Angeles, California, for the plaintiff-appellee.

OPINION

WALLACE, Circuit Judge:

Daniels appeals from the sentence he received after pleading guilty to possessing child pornography in violation of 18

U.S.C. § 2252A(a)(5)(B). He challenges the length and several conditions of his lifetime term of supervised release. We

affirm in part, and vacate and remand in part. 

I

In August 2004, special agents of the Federal Bureau of

Investigation (FBI) were investigating the distribution of child

pornography over the internet through online chat groups.

After identifying a group whose members traded child pornography over the internet, the FBI traced the online identity

of one group member to Daniels in Upland, California. In

September 2004, the FBI executed a federal search warrant

for Daniels’ Upland residence. Daniels made two statements

to the FBI in which he admitted that he was a member of the

subject group, that he participated in the group in a female

persona, that on several occasions he had downloaded child

pornography from the internet and uploaded child pornography to the internet, and that he had child pornography saved

on his computer hard drive and on computer diskettes in his

home. 

FBI agents seized a computer, 223 diskettes, three compact

discs, three videotapes, and eleven file folders of documents

belonging to Daniels. A search of these media revealed thousands of images and videos of child pornography, and exam11990 UNITED STATES v. DANIELS
iners at the National Center for Missing and Exploited

Children determined that these thousands of images included

659 images depicting identified victims of child sexual abuse.

In exchange for Daniels’ agreement to plead guilty to a

single-count information alleging possession of child pornography and to waive certain appellate rights, the government

agreed not to prosecute Daniels for violations of 18 U.S.C.

§ 2252A(a)(1)-(4) or (6) which would have charged him with

receipt, distribution, reproduction, advertisement, promotion,

solicitation, or sale of child pornography, or possession with

intent to sell child pornography. The plea agreement stated

that the maximum sentence included ten years of imprisonment and a lifetime period of supervised release. As part of

the plea agreement, Daniels consented to several conditions of

supervised release related to the use of computers and the

internet. The district court accepted the plea agreement. 

The Probation Office filed its Presentence Report (PSR) on

Daniels and recommended a lifetime term of supervised

release, observed that the lifetime term was warranted by

applicable statutory provisions, and recommended incarceration within the sentencing guidelines. The PSR reasoned that

Daniels’ interest in child pornography over a number of years,

his desire to protect his illegal pornographic images, and “an

unknown clinical risk assessment of his behavior” all supported the imposition of the lifetime term. The government’s

sentencing memorandum agreed with the Probation Office’s

recommendations and with the justification for the recommendations. 

Daniels objected to the lifetime term and certain special

conditions of supervised release, arguing that they were

unreasonable and that they did not comport with the governing statutory requirements. In response, the Probation Office

reiterated that a lifetime term of supervised release was necessary: 

UNITED STATES v. DANIELS 11991
Because the defendant has carefully controlled the

type of information provided to the Court as to his

psychological condition and orientation, a lifetime

term of supervised [release] is necessary for protection of the community, as a truly independent risk

assessment has not been conducted. Perhaps even

more compelling is that such a term is needed to

meet the goal of ensuring adequate rehabilitative

treatment. The issues underlying sex offenses are

typically deeply ingrained and require life long management. Should the defendant be able to demonstrate to the Court during the term of supervised

release that all the underlying clinical truths as to his

condition have been identified and ameliorated, the

defendant can apply for an early termination of his

supervised release. 

Most of the argument at the sentencing hearing related to

the term of imprisonment. The lifetime term of supervised

release and special conditions of release were not brought up

by either party. The district court ultimately imposed a 51-

month sentence of imprisonment, below the low-end of the

advisory Guidelines range. Although Daniels’ opening brief

challenged his term of imprisonment as unreasonable, he

withdrew that argument in his reply brief. The district court

also imposed a lifetime term of supervised release with several special conditions, including those to which Daniels had

consented in the plea agreement and others for which he had

not waived appellate rights. Daniels timely appealed, challenging the length of his term of supervised release as well as

several of its special conditions.

II

We first address Daniels’ challenges to the district court’s

imposition of a lifetime term of supervised release. The length

of Daniels’ term of supervised release is part of his sentence

and is reviewed for reasonableness. See United States v. Cope,

11992 UNITED STATES v. DANIELS
527 F.3d 944, 950 (9th Cir. 2008). “On appeal, we first consider whether the district court committed significant procedural error, then we consider the substantive reasonableness

of the sentence.” United States v. Carty, 520 F.3d 984, 993

(9th Cir. 2008) (en banc). 

[1] Daniels argues that the lifetime term must be reversed

because the district court failed to explain its reasons for its

imposition in violation of 18 U.S.C. § 3553(c), which provides that “[t]he court, at the time of sentencing, shall state in

open court the reasons for its imposition of the particular sentence.” Failure to explain adequately the sentence selected can

be procedural error. See Carty, 520 F.3d at 993. The Supreme

Court has explained that section 3553(c) requires a sentencing

court to “set forth enough to satisfy the appellate court that

[it] has considered the parties’ arguments and has a reasoned

basis for exercising [its] own legal decisionmaking authority.”

Rita v. United States, 127 S. Ct. 2456, 2468 (2007). “What

constitutes a sufficient explanation will necessarily vary

depending upon the complexity of the particular case, whether

the sentence chosen is inside or outside the Guidelines, and

the strength and seriousness of the proffered reasons for

imposing a sentence that differs from the Guidelines range. A

within-Guidelines sentence ordinarily needs little explanation.

. . .” Carty, 520 F.3d at 992. No lengthy explanation is necessary if “the record makes clear that the sentencing judge considered the evidence and arguments.” Rita, 127 S. Ct. at 2469.

It is true, as Daniels argues, that the sentencing court did

not expressly state its reasons for imposing the lifetime term

of supervised release during the sentencing hearing. The sentencing hearing simply did not focus on the term of supervised release and focused instead on the term of

imprisonment. Neither party brought it up, although Daniels

was given ample opportunity to do so when both he and his

counsel were asked if they had anything to add to the discussion. Despite the district court’s silence on the specific issue

of the term of supervised release, however, we are satisfied

UNITED STATES v. DANIELS 11993
that the record shows that the court considered the arguments

and evidence that Daniels had submitted and chose to reject

those arguments and impose the Guidelines-recommended

lifetime term of supervised release. 

[2] The PSR and the government’s sentencing memorandum both discussed the reasons for recommending a lifetime

term of supervised release, and Daniels challenged that recommendation in his own sentencing memorandum. At the

opening of the sentencing hearing, the judge stated, 

The court has also received [the PSR], as well as the

recommendations of the probation officer and the

pre-sentence investigation report. I’ve received the

government’s initial position, the defendant’s position regarding sentencing factors, and then the government’s response to the defendant’s sentencing

memorandum on the defendant’s position. I’ve read

all of the exhibits; the report from the treating therapists and doctors; the letters, Mr. Daniels’ letters;

and the various other information that you submitted

concerning sentencing issues and placement issues.

From this record, it is clear that the sentencing court was

aware of Daniels’ objection to the recommended term of

supervised release and had considered Daniels’ arguments

and evidence before making its decision. See Carty, 520 F.3d

at 996 (reasoning that when a sentencing judge “stated that he

reviewed the papers” and “the papers discussed the applicability of § 3553(a) factors,” we can assume that the judge considered the relevant factors). Certainly the district court could

have said more to explain its decision, as did the district court

in Cope, 527 F.3d at 951-52, but such a lengthy explanation

is not always necessary. Indeed, as we recently stated in

Carty, “[a]n explanation communicates that the parties’ arguments have been heard, and that a reasoned decision has been

made. It is most helpful for this to come from the bench, but

adequate explanation in some cases may also be inferred from

11994 UNITED STATES v. DANIELS
the PSR or the record as a whole.” 520 F.3d at 992. Here, the

PSR and record as a whole communicate that the district court

heard and rejected Daniels’ arguments. Furthermore, the district court expressly stated that its sentence was based upon

consideration of the sentencing factors enumerated in 18

U.S.C. § 3553(a). The district court did not commit procedural error. 

[3] Daniels also argues that the lifetime term of supervised

release is substantively unreasonable because it improperly

restricts Daniels’ First Amendment rights and because it

involves a greater deprivation of liberty than is necessary to

meet the goals of supervised release. Substantive reasonableness is reviewed “in light of all the 18 U.S.C. § 3553(a) [sentencing] factors, including the applicable Guidelines range.”

United States v. Cantrell, 433 F.3d 1269, 1280 (9th Cir.

2006). While we have not adopted a presumption of reasonableness for a within-Guidelines sentence, we “abide by the

Supreme Court’s admonition 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.’ ” Carty, 520

F.3d at 994 (quoting Rita, 127 S. Ct. at 2465). 

[4] 18 U.S.C. § 3583(k) authorizes a term of supervised

release of “not less than 5 [years], or life” for offenses involving a minor victim, including possession of child pornography

in violation of 18 U.S.C. § 2252A. The Sentencing Guidelines

also provide that “the length of the term of supervised release

shall not be less than the minimum term of years specified for

the offense . . . and may be up to life, if the offense is a sex

offense.” U.S.S.G. § 5D1.2(b)(2). An accompanying policy

statement recommends the maximum term of supervised

release for a sex offense. See id. Application Note 1 to section

5D1.2 defines possession of child pornography as a sex

offense. 

[5] The Probation Office recommended a lifetime term of

supervised release in part based on this policy statement,

UNITED STATES v. DANIELS 11995
which reflects the judgment of Congress and the Sentencing

Commission that a lifetime term of supervised release is

appropriate for sex offenders in order to protect the public.

See H.R. Rep. 107-807, 2003 WL 131168 (discussing lifetime

supervised release for sexual offenders). This policy recommendation was a factor in our decision to uphold a lifetime

term of supervised release in Cope, 527 F.3d at 952: “[t]he

lifetime term is also reasonable in light of the ‘pertinent policy statement’ issued by the Sentencing Commission, which

recommends the maximum term of supervised release for sex

offenses” (internal citations omitted). The recommendation

was also based on Daniels’ “stated interest in child pornography over a number of years; his strong desire to protect the

child pornography images . . . ; and an unknown clinical risk

assessment.” Additionally, the Probation Office pointed out

the importance of a lifetime term of supervised release in

rehabilitating Daniels because “[t]he issues underlying sex

offenses are typically deeply ingrained and require life long

management.” 

[6] Daniels does not question that the lifetime term is reasonably related to his offense of conviction or to his background, but argues that because he “had never posed a threat

to anyone,” the deprivation of liberty involved is greater than

necessary to protect the public and prevent recidivism.

Although, unlike the defendant in Cope, Daniels has no prior

sex offense convictions, the district court was not obligated to

accept his assertion that he “never posed a threat to anyone,”

or to rely on a report he submitted that the Probation Office

found was “based almost exclusively on [Daniels’] selfinterested self-reporting.” See United States v. Rearden, 349

F.3d 608, 620 (9th Cir. 2003) (“Although [defendant] testified

that his sexual interest in children was strictly fantasy . . . , the

district court was entitled not to accept his version of the

facts”). The Probation Office was concerned that “a truly

independent risk assessment” was never conducted on Daniels

because he “carefully controlled the type of information provided to the Court,” and both the Probation Office and the

11996 UNITED STATES v. DANIELS
court were concerned that Daniels “lack[ed] . . . insight into

his problems.” The court was also concerned about Daniels’

“addictive behavior,” which contributed significantly to his

offense conduct. 

[7] Additionally, as the district court reminded Daniels at

sentencing, merely possessing child pornography is not a victimless crime; it fuels the demand for the creation and distribution of child pornography. The government presented

evidence of the harm that children suffer when they are used

in the creation of child pornography and when that pornography is distributed to others. A lifetime term of supervised

release was warranted in order to ensure that Daniels does not

relapse into his addictive behavior and again begin collecting

child pornography. The district court was within its discretion

to conclude that a lifetime term of supervised release was necessary to punish Daniels for his crime, to rehabilitate him, and

to protect the public from future crimes by Daniels. 

Daniels’ constitutional argument focuses on the fact that

several conditions of supervised release restrict his access to

computers and the internet which, if imposed for an entire

lifetime, he argues, improperly restrict his First Amendment

rights. However, as he admits, Daniels agreed to those conditions in his plea agreement. Contrary to Daniels’ assertion, the

plea agreement expressly informed him that the district court

could impose a sentence up to a lifetime of supervised release.

At his change of plea hearing, Daniels was again reminded

that he could receive a lifetime term of supervised release,

and he stated that he understood the maximum penalties to

which he was subject. As Daniels expressly agreed to the conditions knowing that a lifetime term of supervised release

might be imposed, he has waived his right to challenge them.

His First Amendment argument is therefore meritless.

III

[8] Daniels next challenges a number of the conditions of

supervised release imposed by the district court. We review

UNITED STATES v. DANIELS 11997
the district court’s decision to impose conditions of supervised release for an 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). District courts may impose conditions of supervised

release “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.”

Rearden, 349 F.3d at 618 (internal quotation marks omitted);

see also 18 U.S.C. § 3583(d). “Circuit law establishes that a

sentencing judge is not required to articulate on the record at

sentencing the reasons for imposing each condition of supervised release, where we can determine from the record

whether the court abused its discretion.” United States v.

Betts, 511 F.3d 872, 876 (9th Cir. 2007) (internal quotation

marks and footnote omitted). However, to impose a condition

that implicates a significant liberty interest, the district court

must support its decision on the record with evidence justifying the condition. United States v. Williams, 356 F.3d 1045,

1055-57 (9th Cir. 2004).

A.

Condition six of Daniels’ supervised release states that he

“shall participate in a psychological/psychiatric counseling

and/or a sex offender treatment program, which may include

inpatient treatment as approved and directed by the treatment

provider. [Daniels] shall abide by all rules, requirements, and

conditions of such program, including submission to risk

assessment evaluation(s) and physiological testing, and shall

take all medication deemed by the treatment provider to be

necessary for rehabilitative purposes.” Daniels raises several

objections to this condition. 

11998 UNITED STATES v. DANIELS
[9] First, he points out that although the written judgment

requires Daniels to submit to physiological testing, the transcript of the sentencing hearing states only that he must submit to psychological testing. The difference between

physiological and psychological testing is significant because

physiological testing contemplates Abel and polygraph testing, which are not otherwise specified in Daniels’ conditions

of supervised release. Compare United States v. Stoterau, 524

F.3d 988, 1003 n.6 (9th Cir. 2008) (observing that the difference between “psychological” and “physiological” in that

case was immaterial because the conditions expressly specified that the defendant would have to submit to polygraph and

Abel testing). Daniels argues that this court must therefore

amend the written judgment to delete the condition requiring

physiological testing, because “[w]hen 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). 

[10] Here, the source of the discrepancy between the written judgment and the transcript of oral proceedings is unclear.

Daniels asserts that the court actually stated “psychological

testing” during the hearing and that the condition must therefore be revised to conform with the oral pronouncement, but

the government contends that discrepancy is a result of a mistranscription by the court reporter. The government’s position

seems plausible, given that the district court appears to have

been reading the special terms of supervised release directly

from the Probation Officer’s letter recommending physiological testing. Because we cannot determine with certainty the

condition that was actually imposed at the sentencing hearing

and because the difference is significant insofar as physiological testing contemplates Abel and polygraph testing whereas

psychological testing may not, we vacate this condition and

remand it to the district court. The district court can make any

change necessary so that the written judgment is in conformity with the oral judgment, if the court remembers what that

UNITED STATES v. DANIELS 11999
judgment was. If not, the court may hold a new hearing on

that condition. 

Second, Daniels argues that because the condition requiring

him to submit to physiological testing contemplates Abel and

polygraph testing, it is invalid because the district court did

not apply heightened scrutiny before imposing the condition

and because the condition involves a greater deprivation of

liberty than is reasonably necessary for the purposes of supervised release. Daniels also asserts that polygraph testing violates his Sixth Amendment rights, but he fails to assert this

position with any meaningful argument, so this objection to

the condition is waived. See Fed. R. App. P. 28(a)(9);

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

Finally, he argues that insofar as the condition contemplates

polygraph testing, it violates his Fifth Amendment rights. 

[11] These arguments are not new to us. In Stoterau, we

held that polygraph testing as a condition of supervised

release does not infringe on a defendant’s Fifth Amendment

rights because defendants retain such rights during polygraph

examinations. 524 F.3d at 1003-04; see also Weber, 451 F.3d

at 568 n.17; United States v. Antelope, 395 F.3d 1128, 1134-

41 (9th Cir. 2005). We have also rejected Daniels’ argument

that polygraph conditions present constitutional concerns

under Miranda v. Arizona, 384 U.S. 436 (1966), and have

held that polygraph examinations pursuant to a condition of

supervised release do not constitute “custodial interrogation”

and do not therefore implicate Miranda. See Stoterau, 524

F.3d at 1004. 

[12] We have similarly held against the challenges Daniels

raises to Abel testing: “Abel testing does not implicate a particularly significant liberty interest, and thus does not require

the district court to make the heightened findings” Daniels

requests. Id. at 1006. We also disagreed that Abel testing is

unreliable, holding that a “district court could reasonably conclude that the Abel test has value in rehabilitation and protec12000 UNITED STATES v. DANIELS
tion of the public as part of a treatment program for assessing

a sex offender’s interest in children.” Id. at 1007. Therefore,

here, as in Stoterau, we hold that the district court did not

abuse its discretion in imposing a condition of supervised

release that may require Daniels to submit to Abel and polygraph testing. 

[13] Third, and finally, Daniels objects to the supervised

release condition that he “take all prescribed medication.” In

Cope, which was decided after Daniels was sentenced, we

held that certain medications such as anti-psychotic medications implicate significant liberty interests and that to impose

a condition requiring a defendant to take those types of medications, a district court must make “ ‘on-the-record,

medically-grounded findings that court-ordered medication is

necessary to accomplish one or more of the factors listed in

§ 3583(d)(1).’ ” 527 F.3d at 954 (quoting Williams, 356 F.3d

at 1057). We stated that “where, as here, a district court orders

a defendant to take ‘any’ or ‘all’ medication prescribed by

medical or other treatment personnel during his term of supervised release without making heightened Williams findings,”

the condition must “be understood as limited to those medications that do not implicate a particularly significant liberty

interest of the defendant.” Cope, 527 F.3d at 955. We

remanded “to permit the district court to make the necessary

. . . findings with regard to the condition requiring [defendant]

to ‘take all prescribed medication.’ ” Id. at 956. The district

court did not have the benefit of Cope when it sentenced Daniels, and therefore we remand this condition to the district

court so that it can make necessary findings with respect to

the requirement that Daniels take all prescribed medication. 

In sum, although we reject Daniels’ challenges to Condition six insofar as he objects its potential to submit him to

Abel and polygraph testing, we order a limited remand of this

condition so that the district court can either conform the written judgment to the oral pronouncement or hold a new hearing

to decide whether “psychological” or “physiological” testing

UNITED STATES v. DANIELS 12001
will be imposed. We also remand so that an appropriate

record can be developed for the phrase mandating that Daniels take all prescribed medication. If no such record is developed, the condition will be construed to be limited to

medications that do not implicate Daniels’ significant liberty

interests. 

B.

[14] Condition seven provides that, “As directed by the

Probation Officer, the defendant shall pay all or part of the

costs of the defendant’s sex offender treatment or psychiatric

disorder. . . .” Daniels argues it is improper for a district court

to delegate to the Probation Officer such a responsibility;

however, he recognizes that this argument, which he failed to

raise in the district court, is foreclosed by United States v.

Dupas, 419 F.3d 916, 922-24 (9th Cir. 2005). See also Stoterau, 524 F.3d at 1007-08 (holding the district court did not

plainly err when it delegated to the probation officer the

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

of treatment). The district court did not plainly err when it

imposed this condition.

C.

Condition eight prohibits Daniels from “possess[ing] any

materials, including pictures, photographs, books, writings,

drawings, videos, or video games, depicting and/or describing

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

§ 2256(2).” Daniels objects to this condition, arguing that it

involves a greater deprivation of liberty than is reasonably

necessary, because Daniels was convicted only of simple possession of child pornography, and that it violates the First

Amendment because the condition would apply to legal adult

pornography and even perhaps non-pornographic media with

sexual content. Daniels did not object to this condition in the

district court, and so we review for plain error. See United

States v. Ortiz, 362 F.3d 1274, 1278 (9th Cir. 2004). 

12002 UNITED STATES v. DANIELS
[15] We approved a substantially similar condition in Rearden, where we held that the district court did not plainly err

in imposing the condition that the defendant “not possess any

materials depicting sexually explicit conduct as defined in 18

U.S.C. § 2256(2).” 349 F.3d at 619. We reasoned that “[a]

defendant’s right to free speech may be abridged to ‘effectively address [his] sexual deviance problem,’ ” id. (citations

omitted) (alteration in original), even where the defendant

was convicted only of transmission of child pornography and

not of child molestation. Id. at 620. We have also held that the

phrase “sexually explicit conduct” is neither vague nor overbroad. See id.; see also United States v. X-Citement Video,

Inc., 982 F.2d 1285, 1288-89 (9th Cir. 1992) (holding that

definition of “sexually explicit conduct” set forth in prior version of 18 U.S.C. § 2256(2) survived vagueness and overbreadth challenges), rev’d on other grounds, 513 U.S. 64

(1994). 

[16] Daniels acknowledges that we upheld a similar condition in Rearden, but argues that his case is distinguishable

from Rearden because there the defendant was involved with

a co-defendant who was “a dangerous pedophile” and had an

“interest in extremely vile and graphic depictions of child

rape and murder.” Rearden, 349 F.3d at 620. However, we

hold that any distinction between the defendant in Rearden

and Daniels does not make the district court’s ruling plainly

erroneous. Neither defendant had a history of child molestation. The defendant in Rearden had an admitted interest in

depictions of child rape and murder; Daniels’ child pornography collection included a number of “sadomasochistic images

of prepubescent children” and over 600 images depicting

identified victims of child sexual abuse. Also, although pursuant to his plea agreement, Daniels was charged only with possession of child pornography, he had admitted to uploading

child pornography onto the internet and participating in chatrooms discussing sexual activity with children. Finally, we

observe, as the district court continually reminded Daniels

during his sentencing hearing, that the possession of child

UNITED STATES v. DANIELS 12003
pornography itself facilitates the abuse of children by fueling

the demand for its production and distribution. Even if Daniels does not pose a risk of sexually abusing children, he may

slip into old habits of amassing child pornography. In these

circumstances and based on the nature of Daniels’ offense, the

district court “did not plainly err in limiting [Daniels’] possession of materials depicting sexually explicit conduct because

the condition furthered the goals of rehabilitating him and

protecting the public.” Id.; see also United States v. Bee, 162

F.3d 1232, 1235 (9th Cir. 1998) (upholding similar condition

for a convicted sex abuser in order to promote rehabilitation

and protection of the public).

D.

Condition ten prohibits Daniels from “frequent[ing], or

loiter[ing], within 100 feet of school yards, parks, public

swimming pools, playgrounds, youth centers, video arcade

facilities, or other places primarily used by persons under the

age of 18.” Condition fourteen restricts his choice of housing,

stating that Daniels “shall not reside within direct view of”

such places. Daniels argues that because the government has

submitted “absolutely no evidence that Daniels has ever been

any danger to a minor,” these conditions are not reasonably

related to his offense of conviction or his personal background. 

[17] Daniels did not object to this condition in the district

court, so we review for plain error. See Ortiz, 362 F.3d at

1278. We approved a similar condition on plain error review

in Rearden, 349 F.3d at 620. It is true that there the government presented evidence “from which the district court could

conclude that [the defendant] posed a risk to children.” Id.

The defendant there also had an admitted life-long sexual

interest in children, “used news stories about child murders or

abductions to become sexually excited,” and had written and

“described in graphic detail the rape, abuse, and murder of

children.” Id. Here, by contrast, Daniels maintains that he has

12004 UNITED STATES v. DANIELS
no sexual interest in children but instead collected child pornography only so that he would have a comprehensive collection of pornography generally. However, the district court was

not required to believe Daniels’ self-serving statements, particularly where the Probation Office stated that no “independent risk assessment” had been conducted. Moreover, there

was evidence before the district court suggesting that Daniels

did have a sexual interest in children, whether or not he had

acted on that interest. Besides the sheer volume of child pornography that Daniels had collected, organized, stored, and

distributed, Daniels had written emails about having engaged

in a sexually deviant lifestyle that included sex with children.

Even if Daniels was not actually a pedophile and had not

actually engaged in sexual acts with children, such evidence

suggested that he at least had a sexual interest in children and

that preventing his loitering around or living near areas where

children frequent was reasonably related to his offense of conviction and to the goals of rehabilitating Daniels and protecting the public from his potential sexual interest in children.

As we recognized in Bee, which upheld similar restrictions on

loitering for a convicted sex abuser, “even very broad conditions are reasonable if they are intended to promote the probationer’s rehabilitation and to protect the public.” 162 F.3d at

1236. The conditions here were so intended and there was no

plain error.

E.

Conditions eleven and twelve provide that, without prior

approval of the Probation Office, Daniels shall not be

employed by a business or organization “that causes him to

regularly contact persons under the age of 18,” or “whose

principal product is the production and/or selling of materials

depicting and/or describing ‘sexually explicit conduct,’ as

defined at 18 U.S.C. § 2256(2).” Daniels, for the first time on

appeal, challenges these restrictions as “improper occupational restrictions.” 

UNITED STATES v. DANIELS 12005
[18] We approved almost identically-worded conditions in

Stoterau. 524 F.3d at 1009-10. In interpreting U.S.S.G.

§ 5F1.5, which requires heightened scrutiny of certain occupational restrictions, we held “that the provision applies only

to restrictions on the specific occupation or occupations held

by the defendant prior to conviction.” Id. Here, neither condition restricts Daniels from engaging in his previous occupation as an insurance salesperson, and so neither condition is

an “occupational restriction” under section 5F1.5. Thus, Daniels’ arguments with regard to U.S.S.G § 5F1.5 lack persuasiveness, and the conditions here only have to meet the

requirements of 18 U.S.C. § 3583(d). We hold, on plain error

review, that they do. The restrictions on Daniels’ future

employment are reasonably related to the goals of deterrence,

rehabilitation, and protection of the public, given his potential

sexual interest in children. Furthermore, the restrictions are

not a “greater deprivation than is reasonably necessary” to

further these goals, because Daniels is not precluded from

resuming his work as an insurance salesperson. See Stoterau,

524 F.3d at 1010.

F.

[19] Finally, Daniels objects to the court’s authorization for

the Probation Officer to disclose the PSR and any previous

mental evaluations or reports to the treatment provider, and

for the treatment provider to provide information to state or

local service agencies for rehabilitative purposes. Daniels

contends this authorization violates the psychotherapistpatient privilege recognized in Jaffee v. Redmond, 518 U.S. 1

(1996). Daniels’ argument is foreclosed by United States v.

Lopez, where we recognized that the psychotherapist-patient

evidentiary privilege is “beside the point of a supervised

release condition.” 258 F.3d 1053, 1057 (9th Cir. 2001); see

also Stoterau, 524 F.3d at 1011 (holding the district court did

not abuse its discretion in authorizing the limited disclosure

of the defendant’s PSR and mental health records). Here,

“[t]he district court could reasonably conclude that the limited

12006 UNITED STATES v. DANIELS
disclosure of [Daniels’] PSR and mental health evaluations

was necessary to facilitate his treatment and successfully

monitor his reintegration into society following his release

from prison.” Stoterau, 524 F.3d at 1011.

IV

For the above reasons, we AFFIRM the district court’s sentence of a lifetime term of supervised release. We AFFIRM

the special conditions of release, with the exception of condition six. We VACATE and REMAND condition six to the

district court for a determination of whether the condition

requires Daniels to submit to psychological or physiological

testing, and to make specific findings concerning the medications that Daniels may be required to take. 

AFFIRMED IN PART; VACATED AND REMANDED

IN PART.

UNITED STATES v. DANIELS 12007