FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 07-30105 Plaintiff-Appellee,

D.C. No.

v.  CR-05-05247-RBL

DONALD JAY STREICH,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Western District of Washington

Ronald B. Leighton, District Judge, Presiding

Argued and Submitted

October 21, 2008—Seattle, Washington

Filed March 9, 2009

Before: Diarmuid F. O’Scannlain, Pamela Ann Rymer, and

Andrew J. Kleinfeld, Circuit Judges.

Opinion by Judge O’Scannlain;

Judge Kleinfeld Writes Separately

2937
COUNSEL

Jonathan S. Solovy, Law Office of Jonathan S. Solovy, Seattle, Washington, argued the cause for the defendant-appellant

and filed the briefs. 

Mark Parrent, Assistant United States Attorney, Seattle,

Washington, argued the cause for the plaintiff-appellee and

filed the brief. Jeffrey C. Sullivan, United States Attorney,

Seattle, Washington, was also on the brief.

OPINION

O’SCANNLAIN, Circuit Judge: 

We must decide whether a criminal defendant who pled

guilty can challenge the inclusion of information in his PreSentence Report that might put him at risk of subsequent civil

confinement.

UNITED STATES v. STREICH 2939
I

A

For the better part of 2004, Donald Jay Streich boarded in

the homes of several families with small children at Fort

Lewis, Washington. In most of these households, the father

was serving in Iraq and the mother needed assistance caring

for the children. Streich typically received board and some

spending money in exchange for his help babysitting and

housekeeping. 

In the last such household, Streich was responsible for a

seven year-old boy and a fifteen year-old boy, both the children of a Mrs. T. from a previous marriage. One morning,

military police pulled Streich over for speeding. After a background check, the officers discovered that there was an outstanding warrant for Streich’s arrest in a nearby county for

Failure to Register as a Sex Offender. Streich pled guilty to

this crime and was sentenced to eight months in jail. 

During Streich’s incarceration, Mrs. T.’s husband, Mr. T.,

who had been deployed in Iraq when Streich began living in

the house, returned home. One day, while searching the house

for his wife’s digital camera, he discovered it in a book bag

belonging to Streich. On that camera he found pornographic

photographs of his seven year-old stepson. After investigation, federal officers ultimately found evidence that Streich,

twenty-three years-old at the time, had had multiple sexual

encounters with Mrs. T’s fifteen year-old son.

B

On the basis of the sexual encounters with the fifteen yearold boy only, prosecutors brought an indictment against

Streich for one count of sexual abuse of a minor in violation

of 18 U.S.C. § 2243. The photographs of the seven year-old

boy did not generate separate charges. Streich utlimately pled

2940 UNITED STATES v. STREICH
guilty to the sexual abuse charge pursuant to an agreement

including two provisions important to this appeal. First, in a

section entitled “Ultimate Sentence,” the agreement stated

that the “[d]efendant acknowledges that no one has promised

or guaranteed what sentence the Court will impose.” Indeed

neither side promised to make a particular sentencing recommendation. The agreement also included a provision entitled

“Non-Prosecution of Additional Offenses,” which read in relevant part:

As part of this Plea Agreement, the United States

Attorney’s Office for the Western District of Washington agrees to not prosecute the Defendant for any

additional offenses known to it as of the time of this

Agreement that are based upon evidence in its possession at this time, or that arise out of the conduct

giving rise to this investigation. In this regard,

Defendant recognizes that the United States has

agreed not to prosecute all of the criminal charges

that the evidence establishes were committed by

Defendant solely because of the promises made by

Defendant in this Agreement. Defendant acknowledges and agrees, however, that for purposes of preparing the Presentence Report, the United States

Attorney’s Office will provide the Untied States Probation Officer with evidence of all relevant conduct

committed by Defendant.

In anticipation of sentencing, the probation officer prepared

an unusually long and detailed presentence report (“PSR”).

The PSR included information about an earlier conviction,

when Streich was seventeen years-old, on one count of child

molestation and one count of attempted child molestation.

Streich had been incarcerated by the Washington State Juvenile Rehabilitation Administration and subsequently released

on parole. At some point during his incarceration and parole,

Streich enrolled in a psychosexual treatment program, in the

course of which he volunteered information revealing past,

UNITED STATES v. STREICH 2941
and potentially criminal, conduct, for which he has not been

charged. The only evidence of such conduct appears to be his

own disclosures as part of the psychosexual treatment program, which Streich provided in exchange for immunity. 

When the probation officer was preparing the PSR, he

asked Streich about this prior conviction and the psychosexual

treatment that he underwent. At the officer’s request and in

the presence of defense counsel, Streich signed two releases,

authorizing private parties and government entities, respectively, to provide information to the Probation Office. 

C

At the sentencing hearing, defense counsel objected to the

inclusion in the PSR of the information from Streich’s psychosexual treatment records. He argued that Streich had not

validly consented to their release. On the basis of that view,

the defense urged the district court not to consider information derived from those records to decide on a sentence. In

addition, it argued that the district court should excise the portions of the PSR based on the records because they would significantly prejudice Streich in the future. The district judge

immediately indicated, and repeated several times, that “with

regard to the evidence from the juvenile rehabilitation authority, I was not inclined to use that evidence in formulating a

decision.” 

After hearing testimony, the district court ultimately concluded, “based on a preponderance of the evidence,” that

Streich validly consented to release the psychosexual treatment records and that excision of the PSR was unnecessary.

After further argument from counsel, the district court handed

down a sentence of 120 months imprisonment, followed by a

five-year term of supervised release subject to certain special

conditions. Streich timely appeals. 

2942 UNITED STATES v. STREICH
II

A

Streich first argues that the government breached the plea

agreement by basing its sentencing recommendation on

uncharged conduct, including the photographs he took of Mrs.

T’s seven-year-old son.1 We construe a plea agreement as a

contract between a government and a defendant. See United

States v. Mondragon, 228 F.3d 978, 980 (9th Cir. 2000). If

“the terms of the plea agreement on their face have a clear and

unambiguous meaning, then this court will not look to extrinsic evidence to determine their meaning.” United States v.

Clark, 218 F.3d 1092, 1095 (9th Cir. 2000).

B

Streich’s specific contention is that the government

breached the provision of the plea agreement that bound it not

to “prosecute” him for any additional offenses based on evidence “in its possession” at the time of the agreement or “that

arise out of the conduct giving rise to this investigation.” Consistent with this promise, the government did not charge or

prosecute Streich for any crime other than that involved in

this appeal. However, he points to the fact that the government highlighted the pornographic photographs he took of

1Streich also appears to raise, on appeal, the district court’s failure to

resolve his objection to a specific paragraph of the PSR. But the district

court did not resolve this objection because Streich withdrew it in his second sentencing memorandum and then declined to revive it at the sentencing hearing. Therefore he has done more than forfeit his objection; he has

waived it completely. See United States v. Olano, 507 U.S. 725, 733

(1993) (“Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right.”) (internal quotation marks

omitted). An error to which one waives objection is no error at all, and

leaves a court of appeals with nothing to review. Id. at 732-33 (“Deviation

from a legal rule is “error” unless the rule has been waived.”). 

UNITED STATES v. STREICH 2943
Mrs. T.’s seven year-old son. Essentially, Streich contends

that by arguing for an upward departure from the sentencing

guideline maximum “based, in part, on the evidence concerning the photographs,” the government effectively prosecuted

him for the additional offense of possession of child pornography in violation of the plea agreement. 

[1] The crucial term is the government’s promise not to

“prosecute” Striech for any offenses, other than the charge to

which he pled guilty, with respect to which the government

had evidence at the time of the agreement. Although the government did not in fact charge him with any crime beside that

to which he pled guilty, Streich maintains that a promise not

to prosecute means more than merely a promise not to charge

him with additional crimes. 

[2] We disagree. As a matter of common usage, to “prosecute,” in connection with the law, means “to institute legal

proceedings against.” Webster’s Third New International Dictionary 1820 (1986). Streich relies on our decision in Mondragon for the proposition that a promise not to prosecute

certain conduct includes a promise not to recommend a

heightened sentence on the basis of such conduct. It is true

that in Mondragon we held it a breach for the government “to

influence the district court to impose a harsher sentence than

that suggested by [defendant’s] counsel.” 228 F.3d at 980. But

the government in that case had, in fact, promised to “make

no recommendation regarding sentence.” Id. at 979. There,

the government’s action violated the clear, plain meaning of

the term in the plea agreement. Furthermore, in Mondragon

we began, as we do in this case, with the common, dictionary

definition of the contractual term in question. Id. at 980 n.3.

Thus, Mondragon does not support the counterintuitive notion

that a promise not to prosecute conduct means a promise not

to make a recommendation concerning a sentence; indeed its

ratio decidendi refutes any such idea. It is irrelevant that the

government advocated for a higher sentence based on

uncharged conduct. It never promised to do the contrary, and

2944 UNITED STATES v. STREICH
we therefore conclude that it did not breach the plea agreement.

III

Streich also raises a variety of arguments, based on state

law, the Federal Rules of Criminal Procedure, Federal privacy

laws, and the Fifth and Sixth Amendments to the Federal

Constitution, to challenge the inclusion of the pyschosexual

treatment information in his PSR. The gravamen of all of

these arguments is Streich’s fear that the pyschosexual treatment information will ultimately factor into a proceeding to

commit him civilly under the Adam Walsh Act. See 18 U.S.C.

§ 4248. Given that the government has not initiated or indicated an interest in initiating any such proceeding, we must

ask, as a threshold matter, whether these claims are ripe. 

A

Ripeness is a constitutional prerequisite for jurisdiction; we

therefore have no jurisdiction to review claims unless they are

ripe. Reg’l Rail Reorganization Act Cases, 419 U.S. 102, 138-

39 (1974). “Ripeness,” the Supreme Court has observed, “is

peculiarly a question of timing.” Thomas v. Union Carbide

Agr. Prods. Co., 473 U.S. 568, 580 (1985) (internal quotations and citation omitted). A claim is not ripe if it involves

“contingent future events that may not occur as anticipated, or

indeed may not occur at all.” Id. at 580-81 (internal quotations

and citation omitted). At the same time, a litigant need not

“await the consummation of threatened injury to obtain preventive relief. If the injury is certainly impending, that is

enough.” 18 Unnamed John Smith Prisoners v. Meese, 871

F.2d 881, 883 (9th Cir. 1989) (internal quotations and citations omitted) (emphasis added). With this in mind, we evaluate “both the fitness of the issues for judicial decision, and the

hardship to the parties of withholding court consideration.” Id.

(quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967)).

UNITED STATES v. STREICH 2945
Several of our decisions illustrate how to make this evaluation. In 18 Unnamed John Smith Prisoners, we held that a

challenge under the Eighth and Fifth Amendments was not

ripe. 871 F.2d at 883. Several inmates, held in protective custody as part of a witness protection program, objected to a

proposed policy to “double bunk” them. Id. Even though the

relevant institution “had been advised by the . . . Bureau of

Prisons . . . that it would be double bunked,” this Court found

the alleged injury to be “speculative.” Id. Similarly, we held,

in United States v. Abbouchi, that a Fifth Amendment challenge to a condition of supervised release that the defendant

“truthfully answer any questions asked of him by the probation officer” was not ripe. 502 F.3d 850, 859 (9th Cir. 2007).

By contrast, the defendant’s similar Fifth Amendment challenge in United States v. Antelope was ripe because the government had already incarcerated him for violating the

challenged condition of supervised release. See 395 F.3d

1128, 1132-33 (9th Cir. 2005).

B

[3] Streich repeatedly invokes the specter of civil commitment under the Adam Walsh Act as the injury of which he

complains. He cannot complain about the district court’s use

of the psychosexual treatment information in sentencing,

because the district court explicitly stated that it would not use

it. Although there are other uses to which the Bureau of Prisons might put a PSR,2

 Streich does not complain about those.

He has therefore forfeited any challenges he might have made

in connection with them. Furthermore, although Streich

claims that the district court violated certain statutory and

constitutional rights by including the pyschosexual treatment

information in his PSR, those technical violations do not

motivate his appeal.3 On this issue, Streich’s appeal addresses

2The Bureau of Prisons can rely on the information included in a PSR

for various penological purposes. See, e.g., 28 C.F.R. §§ 301.103, 545.11.

3

In any event, if they did, Streich’s appeal might very well lack standing

on different grounds, namely the absence of any injury in fact. See Lujan

2946 UNITED STATES v. STREICH
only the potential use of the psychosexual treatment information in the PSR for the purposes of civil commitment. His

briefs repeatedly invoke the Adam Walsh Act as the cause of

his injury and the motivator of his appeal. 

[4] Taking Streich at his word, then, we assume that his

claimed injury is a potential civil commitment on the basis of

the inclusion of the psychosexual treatment information in his

PSR. This strikes us as the classic example of a “contingent

future event” that “may not happen at all.” Unlike in 18

Unnamed John Smith Prisoners, the Bureau of Prisons has not

yet made the decision, the consequences of which the defendant objects to. Streich is at the start of his sentence, in a posture similar to Mr. Abbouchi. See Abbouchi, 502 F.3d at 853

(stating that the defendant was appealing his conviction and

sentence on various grounds). If Abbouchi’s Fifth Amendment injury from a condition of supervised release—a condition the district court had already imposed but which had not

yet begun—was not ripe, then Streich’s injury arising from a

hypothetical civil commitment cannot be ripe.4

v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (describing injury-infact as an “irreducible constitutional minimum”). A plaintiff who asserts

a legal claim without any injury-in-fact specific to the litigant has no more

standing than a litigant whose injury-in-fact is not ripe. 

Under standing law, “[a]bstract injury is not enough,” Schlesinger v.

Reservists Committee to Stop the War, 418 U.S. 208, 219 (1975) (internal

quotation marks omitted), for “the party seeking review must himself have

suffered an injury,” Sierra Club v. Morton, 405 U.S. 727, 738 (1972). It

is not enough for the law to have been violated; its violation must harm

or affect the plaintiff in some way. Even the most generous interpretation

of standing doctrine requires that “the interest sought to be protected by

the complainant [be] arguably within the zone of interests to be protected

or regulated by the statute or constitutional guarantee in question.” Ass’n

of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970).

That is to say, there must be an interest apart from the adherence to the

law that the plaintiff wishes to protect. 

4Streich also argues that the “harm is not hypothetical because the proposed regulations provide in mandatory terms that the B[ureau of ] P[riUNITED STATES v. STREICH 2947
IV

[5] For the foregoing reasons, we AFFIRM the sentence of

the district court with respect to the defendant’s breach of plea

agreement claim and DISMISS WITHOUT PREJUDICE the

defendant’s claims challenging the inclusion of the psychosexual information in the Pre-Sentence Report. 

KLEINFELD, Circuit Judge, writing separately: 

I concur in the majority’s rejection of Streich’s challenge.

Indeed, I concur in the entirety of the opinion, except for the

conclusion that Streich’s challenge is unripe. In my view,

Streich’s challenge is ripe. True, insofar as the challenge is

addressed to the use of the presentence report in a civil commitment proceeding subsequent to Streich’s custodial sentence, the challenge is not ripe. Ripeness, though, flows from

the district court’s duties under Federal Rule of Criminal Procedure 32, and from the use that will be made of the presentence report even if there never is a civil commitment

proceeding. 

I. Procedural Considerations

Federal Rule of Criminal Procedure 32 governs the preparation and consideration of presentence reports. The probation

officer preparing the report must include an analysis of the

applicable sentencing guidelines as well as the defendant’s

offense history, financial condition, circumstances, and “any

sons] must review the presentence report in determining whether to file a

petition under the Adam Walsh Act.” The point, however, is that the

Bureau must still determine whether to file such petition. It may not file

it at all; but if it does, Streich will then have an opportunity to challenge

his commitment under the procedures of that Act. See 18 U.S.C.

§ 4247(d). 

2948 UNITED STATES v. STREICH
other information that the court requires.”

1

 The preparer must

exclude information that could harm the defendant or others,

such as the name of an informant or certain diagnoses. 

A copy of the report is given to the defense and prosecution

at least a month before the judge considers it. The parties can

object to its contents. The court must ensure that the parties

are aware of the information that the judge is planning to rely

on at sentencing and allow the parties to comment on that

information. The court may accept any undisputed portion of

the presentence report as true. As for disputed portions, the

court must either “rule on the dispute or determine that a ruling is unnecessary . . . because the court will not consider the

matter.”

2

 The advisory committee notes make it clear that a

court may do both — it can rule on an objection even if the

matter is unnecessary to sentencing but could affect correctional management of the offender.3

 The court must append a

copy of its determination to the report provided to the Bureau

of Prisons. 

The court must do so because the Bureau of Prisons is entitled to rely on the information the judge considered reliable.

The presentence report is used by the Bureau of Prisons to

determine institutional placement, eligibility for programs,

work assignments, financial plans, continuing security evaluations, and possible civil commitment.4

 Leaving disputes unre1Fed. R. Crim. P. 32(d)(1)-(2). 

2Fed. R. Crim. P. 32(i)(3)(B). 

3Fed. R. Crim. P. 32, Advisory Committee Notes, 2002 Amendments

(“If counsel objects to material in the presentence report that could affect

the defendant’s service of sentence, the court may resolve the question, but

is not required to do so.”) (emphasis added). 

4

28 C.F.R. §§ 301.103, 545.11 (2007); Civil Commitment of a Sexually

Dangerous Person, 72 Fed. Reg. 43205, 43206 (proposed Aug. 3, 2007)

(to be codified at 28 C.F.R. pt. 549); Fed. Bureau of Prisons, Program

Statement: Inmate Security Designation and Custody Classification (2006)

*15-22, *48-49, available at http://www.bop.gov/policy/progstat/

5100_008.pdf (presentence report used in initial placement and continuing

security evaluations).

UNITED STATES v. STREICH 2949
solved is inconsistent with the Bureau’s use of the contested

portions. 

In this case, the district judge followed exactly the right

procedure. The judge determined that the information from

Streich’s psychosexual treatment was unnecessary for the

determination of his sentence. The court did not, however,

stop there. It held a hearing to resolve the dispute over the

validity of Streich’s waiver of whatever right he might have

to nondisclosure of the records at issue. The court heard testimony from the probation officer. It concluded that the waiver

was valid and ruled that Streich’s history could be both

included in the presentence report and considered by the

Bureau of Prisons. 

The district court thus performed its duty under Rule 32.

Presentence reports should include “any circumstances affecting the defendant’s behavior that may be helpful in imposing

sentence or in correctional treatment.”

5

 Consideration of this

information will enable the Bureau of Prisons to determine

the best method to address Streich’s criminality. If the information is incorrectly included, however, the Bureau will be

misled in ways that may harm current management of Streich

in his institutional placement and program eligibility.6

Because Streich’s claims are ripe for review on this basis, I

would reach their merits discussed below in part II. 

II. Substantive Considerations

Just because the challenge is ripe does not mean that it is

meritorious. It is not. Streich argues that the material regarding his sex crimes as a juvenile was provided confidentially,

so its inclusion violated his Fifth Amendment rights. The

5Fed. R. Crim. P. 32(d)(2)(A)(iii) (emphasis added). 

6These harms are potential injuries-in-fact to Streich as well. For example, he may be placed in a different prison or subjected to more security

restrictions based on the information. Streich therefore has standing. 

2950 UNITED STATES v. STREICH
record, though, does not support the argument that it was confidential. First, the two paragraphs of the presentence report

on which Streich relies for the claim of confidentiality do not

say that the information was confidential. They say that

“Streich had been given immunity” for the information he disclosed. Immunity and confidentiality are altogether different.

When Oliver North described his activities to the Iran/Contra

congressional committees, pursuant to a grant of immunity,

the immunity protected him from prosecution, but there was

nothing confidential about the information broadcast on

worldwide television.7 Second, the judge determined that

Streich waived any confidentiality he might have with regard

to the information, a finding fully supported by the record.

Streich therefore waived his claimed right to confidentiality,

which was not violated in any event. 

Streich bases a second confidentiality claim on Federal

Rule of Criminal Procedure 32(d)(3). That rule requires that

the presentence report exclude “any diagnoses that, if disclosed, might seriously disrupt a rehabilitation program”

8

 and

“any sources of information obtained upon a promise of confidentiality.”9

 The former provision only applies to diagnoses;

the latter to sources. Neither provision requires exclusion of

the information in Streich’s presentence report. The purpose

of Rule 32(d)’s exclusions is to prevent revealing to the

defendant information that might harm the defendant or others.10

7

See United States v. North, 910 F.2d 843, 851 (D.C. Cir. 1990), modified, United States v. North, 920 F.2d 940 (D.C. Cir. 1990). 

8Fed. R. Crim. P. 32(d)(3)(A). 

9Fed. R. Crim. P. 32(d)(3)(B). 

10See Fed. R. Crim. P. 32, Advisory Committee Notes, 1975 enactment

(“However, the court may decline to let the defendant read the report if

it contains (a) diagnostic opinion . . . (b) sources of information . . . , or

(c) any other information that, if disclosed, might result in harm to the

defendant or other persons.”); id., 1989 Amendments (“Although the

Committee was concerned about the potential unfairness of having confidential or diagnostic material included in the presentence reports but not

disclosed to a defendant . . . . some of this material might assist correctional officials in prescribing treatment programs for an incarcerated

defendant.”) (emphases added). 

UNITED STATES v. STREICH 2951
The latter provision protects someone who, for example,

might tell something relevant to the sentence to the probation

officer, but fears retaliation if his or her identity is revealed.

There is no basis in Rule 32(d)(3)(B) for hiding the material,

just the “sources” of the material. 

Streich’s other challenges are also without merit. Hearsay

may be used in sentencing.11 The Federal Privacy Act does

not apply to state agencies.12 Washington state privacy laws

do not apply because federal admissibility is not predicated on

state law.13 HIPAA does not provide any private right of

action, much less a suppression remedy.14

18 U.S.C. § 3661 provides that “[n]o limitation shall be

placed on the information concerning the background, character, and conduct of a person convicted of an offense which a

court of the United States may receive and consider for the

purpose of imposing an appropriate sentence.”

15 Congress

thus made a broad policy choice to have a judge be as fully

informed as possible before passing sentence on a defendant.

Justice in sentencing requires that the judge be fully informed

about all the aspects of the defendant’s history. Both rehabilitation possibilities and protection of the public require that the

judge know who the defendant really is. 

Justice is what Donald Streich got. Streich’s history as a

sexual predator shows that the sexual predation for which he

11E.g., United States v. Littlesun, 444 F.3d 1196, 1200 (9th Cir. 2006).

125 U.S.C. § 552a(a)(1). 

13United States v. Becerra-Garcia, 397 F.3d 1167, 1173 (9th Cir. 2005).

14Webb v. Smart Document Solutions, LLC, 499 F.3d 1078, 1081 (9th

Cir. 2007) (“HIPAA itself provides no right of action.”); United States v.

Frazin, 780 F.2d 1461, 1466 (9th Cir. 2006) (“Had Congress intended to

authorize a suppression remedy, it surely would have included it among

the remedies it expressly authorized.”). 

1518 U.S.C. § 3661 (2006). See also Fed. R. Evid. 1101(d)(3) (evidentiary restrictions inapplicable at sentencing). 

2952 UNITED STATES v. STREICH
was convicted in this case was not an out of character episode,

but rather consistent with what his character had been for

years. Treatment during his imprisonment, and supervision

when he is eventually released, ought properly to reflect his

history, and section 3661 requires that the court have access

to it.

UNITED STATES v. STREICH 2953