* United States District Judge, Western District of Texas, sitting by designation.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-51044

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

GARY LEE RODRIGUEZ

Defendant - Appellant

Appeal from the United States District Court 

for the Western District of Texas

Before JONES, Chief Judge, JOLLY, Circuit Judge, and MONTALVO, District

Judge.*

FRANK MONTALVO, District Judge:

GaryLee Rodriguez (“Rodriguez”) pleaded guilty to three counts of assault

on a federal officer pursuant to 18 U.S.C. § 111. At his sentencing, the district

court imposed supervised release conditions, which restricted Rodriguez’s

United States Court of Appeals

Fifth Circuit

F I L E D

February 9, 2009

Charles R. Fulbruge III

Clerk
No. 07-51044

1 The PSR stated the warrant in the assault charge was active, but a detainer had not

been lodged.

2

freedoms of association and travel. Rodriguez appeals. We AFFIRM.

BACKGROUND

On April 9, 2007, Rodriguez, a United States citizen, entered the United

States at the Paso Del Norte Port of Entry. A Customs and Border Patrol

(“CBP”) officer verified Rodriguez was “wanted and extraditable for aggravated

assault and battery and interference with a peace officer and first degree sexual

assault of a minor” by the Albany County Sheriff’s Office in Wyoming. The CBP

officer attempted to handcuff Rodriguez. He resisted the application of

handcuffs and punched or struck three CBP officers before he was apprehended.

Rodriguez was indicted on three counts of assaulting a federal officer, and

subsequently pleaded guilty to all three counts of assault. 

At sentencing, the district court relied upon the “circumstances of

[Rodriguez], the circumstances of the case, and all of the information available,”

as well as the advisory Federal Sentencing Guidelines (“Sentencing Guidelines”),

relevant statutory factors, and the Pre-Sentencing Report (“PSR”) to sentence

Rodriguez. The PSR, among other data, contained information about pending

Wyoming charges for first degree, second degree, and third degree sexual assault

of a fifteen-year-old girl.1 Rodriguez was in a relationship with the girl’s mother.

The PSR stated the girltold her mother Rodriguez forced the teen to have sexual

intercourse with him. According to the PSR, the mother confronted Rodriguez

about the incident, who in reply stated, “I couldn’t help myself.” Rodriguez also

had a prior conviction for aggravated assault on his then-pregnant wife. At the

time, his wife declared she feared Rodriguez would take off with the children if
No. 07-51044

3

she let him see them. 

According to the PSR, the probation officer concluded Rodriguez’s total

offense level was fifteen, and Rodriguez’s criminal history category was III. The

correlative Sentencing Guidelines range was a twenty-four to thirty month term

of imprisonment for each assault count. Rodriguez’s only objection to the PSR

was resolved prior to the sentencing hearing, and he concurred in the above

Sentencing Guidelines calculation. 

Based upon the information before it, the Sentencing Guidelines, and the

relevant statutory authority, the district court imposed three concurrent thirtymonth terms of imprisonment, a three-year term of supervised release, and

supervised release conditions. The supervised release conditions include a

prohibition on “associating with any child or children under the age of eighteen,

except in the presence and supervision of an adult specifically designated in

writing by the probation officer” (“association restriction”), and a prohibition on

residing

within 1000 feet of real property comprising a public or private

elementary, vocational, or secondary school or public or private

college, junior college, university or playground or a housing

authority owned by a public housing authority or within 100 feet of

a public or private youth center, public swimming pool or video

arcade facility, without prior approval of the probation officer

(“residence restriction”).

The district court stated it would not order Rodriguez to register as a sex

offender because Rodriguez had not been convicted of a sex offense.

At sentencing, Rodriguez objected to the association and residence

restrictions. Rodriguez argued his convictions for assaulting federal officers did

not constitute sex offenses. Rodriguez, however, did not assert the information
No. 07-51044

2 Section 3583 states: “The [district] court, in imposing a sentence to a term of

imprisonment . . . , may include as a part of the sentence a requirement that the defendant be

placed on a term of supervised release after imprisonment.” 18 U.S.C. § 3583(a) (emphasis

added). That supervised release is a part of the sentencing decision, rather than separate from

it, comports with the supervised release statute, see id., and this court’s case law, see, e.g.,

United States v. Woods, 547 F.3d 515, 516 (5th Cir. 2008) (stating “The court also sentenced

Woods to concurrent supervised release terms of five years on Count I and three years each on

Counts II and IV.”) (emphasis added); United States v. Sealed Appellant, 123 F.3d 232, 235

(5th Cir. 1997) (vacating portions of district court’s sentences imposing terms of supervised

release because supervised release was unavailable to juvenile whose probation was revoked

under the Federal Juvenile Delinquency Act) (emphasis added). 

4

regarding the alleged sexual assault of a minor in the PSR was untrue, nor did

he deny the pending charge. The district court overruled Rodriguez’s objections.

On appeal, Rodriguez argues the district court abused its discretion by

imposing the association and residence restrictions. Rodriguez contends these

supervised release conditions are (1) not reasonably related to the sentencing

factors of 18 U.S.C. § 3553(a) (“section 3553(a)”) and (2) impose greater

deprivations of liberty than are necessary to achieve the goals of section 3553(a).

DISCUSSION

The district court may impose upon a defendant a term of supervised

release as part of its sentencing decision. See 18 U.S.C. § 3583(a) (“section

3583”).2 This court reviews the portion of a sentencing decision related to an

imposed imprisonment term based upon the Sentencing Guidelines under a

deferential abuse of discretion standard. See United States v.

Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008) (citing Gall v. United

States, — U.S.—, 128 S. Ct. 586, 594 (2007)). Pursuant to Gall, this court must

ensure “the district court committed no significant procedural error.” Id. (citing

Gall, — U.S. at —, 128 S. Ct. at 597). If the imposition of the imprisonment

term is “procedurally sound,” this court “then considers the ‘substantive
No. 07-51044

3 This court notes its United States v. Ferguson, 369 F.3d 847, 854 (5th Cir. 2004)

decision militates in favor of applying the axiomatic abuse-of-discretionstandard; however,the

Supreme Court’s decision in Gall is clear:“courts of appeals must review all sentences . . . under

a deferential abuse-of-discretion standard.” Gall, — U.S. at —, 128 S. Ct. at 591 (emphasis

added).

4 This is not to say a defendant should be required to “litigate” a pending sexual offense

charge described in the PSR. Rather, a defendant can simply attack the reliability and

credibility of the information presented. Thus, section 3661 permits the district court to take

this information into consideration during a defendant’s sentencing without forcing a

defendant to waive any other rights. See 18 U.S.C. § 3661.

5

reasonableness ofthe sentence imposed under an abuse-of-discretion standard.’”

Id. (citing Gall, — U.S. at —, 128 S. Ct. at 597). 

By implication, the appropriate standard by which to review conditions of

supervised release, which are part of the sentencing decision, is a deferential

abuse-of-discretion standard, pursuant to Gall.

3 The Record shows the district

court considered the appropriate factors under sections 3553(a) and 3583. Thus,

the only issue that remains is whether the district court imposed conditions that

are substantively unreasonable, and, therefore, abused its discretion.

I. Overview

Title 18 of the United States Code, section 3661 (“section 3661”), provides

“[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.” As a general rule, a PSR bears sufficient indicia of

reliability to be considered by a district court when making a factual

determination. See United States v. Rome, 207 F.3d 251, 254 (5th Cir. 2000).

When a district court relies on information in a PSR, “the defendant bears the

burden of demonstrating that the information is unreliable or untrue.” Id.4
No. 07-51044

6

A district court may impose any condition of supervised release “it

considers to be appropriate.” 18 U.S.C. § 3583(d). Supervised release conditions

may include barring a defendant from “frequenting specified kinds of places or

from associating unnecessarily with specified persons” or prohibiting the

defendant from “resid[ing] in a specified place or area, or refrain[ing] from

residing in a specified place or area.” Id. §§ 3563(b)(6), (13), 3583(d) (stating a

district court may impose “any condition set forth as a discretionary condition

of probation in section 3563(b)”). Further conditions of supervised release,

however, may only be imposed if certain requirements are met. Id. § 3583(d). 

First, the condition must be “reasonably related” to (1) the nature and

characteristics of the offense and the defendant; (2) the deterrence of criminal

conduct;(3)the protection ofthe public from any further crimes ofthe defendant;

and (4) the defendant’s correctional needs. Id. §§ 3553(a)(1), (a)(2)(B)–(D),

3583(d)(1). Second, the condition cannot impose any “greater deprivation of

liberty than is reasonably necessary”(1)to promote deterrence; (2)to protectthe

public from the defendant; and (3)to advance the defendant’s correctional needs.

See id. §§ 3553(a)(2)(B)–(D), 3583(d)(2). Finally, the condition must be

consistent with the policy statements issued by the Sentencing Commission. Id.

§ 3583(d)(3). Accordingly, section 3583 defines the limits of the district court’s

discretion to impose supervised release conditions. Thus, when conditions relate

to sentencing factors and are narrowly defined to achieve sentencing goals, and

such conditions are reasonable, the district court does not abuse its discretion

under Gall’s deferential standard. 

II. Reasonable Relation

Rodriguez argues the supervised release conditions are “not reasonably
No. 07-51044

7

related to the nature and circumstances of the offense, or the history and

characteristics of [] [him]” because he has never been convicted of a sexual

offense. He contends the information in the PSR about the pending state charge

for sexual assault of a minor was not sufficiently reliable to justify imposing the

association and residence restrictions. He asserts the PSR contained an

accusation, not a conviction, and whether the accusation had been presented to

a grand jury or subject to cross-examination was not clear. Rodriguez also

argues the district court did not make any evidentiary findings regarding the

outstanding state charge. 

Based on the information contained in the PSR, the United States of

America (“Government”) argues the supervised released conditions are

reasonably related to the statutory factors because (1) Rodriguez was charged

with sexual assault of a minor; (2) medical evidence confirmed the victim was

assaulted;(3) Rodriguez admitted to the victim’s mother he assaulted the victim;

(4) Rodriguez demonstrated his consciousness of guilt when he attempted to flee

from the CBP officers; and (5) Rodriguez admitted he had sexual impulse control

issues around children because he told the victim’s mother,“I can’t help myself.”

The Government contends a defendant’s supervised release conditions can relate

to the defendant’s history and characteristics, and not only to the underlying

offense. Finally, the Government asserts a previous sex offense conviction “is

simply not required to impose sex offender conditions.”

Rodriguez characterizes the further conditions imposed by the district

court as “sex offense” conditions. There is no binding case law from this court

addressing whether a district court may impose supervised release conditions

related to sex offenders, when the underlying conviction is not a sex offense, and

the defendant has no sexual convictions. When the district court sentenced
No. 07-51044

8

Rodriguez, it made clear it took into consideration the “circumstances of

[Rodriguez], the circumstances of the case, and all of the information available,”

as well as the advisory Federal Sentencing Guidelines, the factors that are

required to be taken into consideration by statute, and the PSR. The PSR

indicates Rodriguez was convicted of aggravated assault on his now-ex-wife, who

was pregnant at the time of the assault. Such conduct, along with other

incidents from his past mentioned in the PSR involving violence, as well as

driving under the influence of alcohol, give all indication Rodriguez is a violent

man who wantonly disregards the safety and welfare of the public and those

with whom he is involved. Therefore, Rodriguez’s construction of the further

conditions as “sex offender” conditions simply because they have been applied

as conditions of supervised release for sex offenders misses the mark.

Rodriguez did not dispute the reliability of the information contained in

the PSR regarding his previous convictions, one of which involved violence to

another, and other reckless behavior, or deny the sexual assault charge before

the district court. He presented no proof to challenge the reliability of the PSR

before the district court. While Rodriguez now contends the PSR is unreliable

because it contained an accusation, rather than a conviction, without crossexamination or a grand jury hearing, he does not contest the truthfulness of the

PSR. 

Notably, Rodriguez does not deny he sexually assaulted the fifteen-yearold girl. He merely points out the procedural posture of the pending charge, and

offers nothing more than conclusory assertions to rebut the reliability of the

PSR. Thus, he has not met his burden of demonstrating the information in the

PSR was unreliable or untrue, and therefore has not shown the district court

erred in considering information in the PSR. See Rome, 207 F.3d at 254.
No. 07-51044

5 Rodriguez has two daughters, ages seven and eight. The daughters reside in

Nebraska with Rodriguez’s ex-wife, the same woman he assaulted while she was pregnant.

Rodriguez stated at his sentencing, “I really need to stay out, so I can keep up with my child

support for my children.” Aside from this vague statement, which goes more to Rodriguez’s

desire to stay out of prison rather than his desire to visit his children, Rodriguez presented no

evidence of how often he visits his children, nor how involved he is in their upbringing.

According to the PSR, Rodriguez had made only one child support payment in five years and

had no contact with his ex-wife or his children in the last five years.

9

Accordingly, under Gall’s deferential standard, the district court remained

within the bounds of its discretion because it imposed conditions of supervised

release, which are reasonably related to the sentencing factors of section 3553(a),

in particular, Rodriguez’s history and characteristics. 

III. Overbreadth

Rodriguez argues the supervised release conditions “involve significant

deprivations of Rodriguez’s freedom of association and travel.” Rodriguez

contends the association restriction limits his contact with his own minor

children.5 Rodriguez contends the residence condition is “so broad that it

prohibits residing near places unlikely to be frequented by minors, such as

colleges, universities, and vocational schools.” Rodriguez argues the residence

restriction is overly broad because it could prevent him from attending college

or living in public housing. 

The Government argues the supervised release conditions do not impose

greater deprivations of liberty than are necessary because (1) Rodriguez is free

to contact his own children, so long as he is supervised by another adult; (2)

Rodriguez’s argument regarding his children is “somewhat disingenuous given

that he has no contact with his children and does not contribute to their

support;” and (3) “given [Rodriguez’s] sexual assault of a teenager and the

presence of teenagers in his truck at the time of his arrest, the [district] court
No. 07-51044

6 Congress has provided “[a] probation officer shall . . . use all suitable methods . . . to

aid . . . a person on supervised release . . . and to bring about improvements in his conduct and

condition.” 18 U.S.C. § 3603(3).

10

reasonably prohibited the defendant from residing near educational facilities

where teenagers indisputably congregate.” 

A. Designation of Duties to the Probation Officer

As a preliminary matter, the district court’s imposition of the residence

restriction does not prohibit Rodriguez from attending a college or university.

Rather,the residence restriction merely prevents him from residing within 1000

feet of such institutions “without prior approval of the probation officer.”

Similarly, the association restriction prohibits Rodriguez from interacting with

children under the age of eighteen, except if an adult, who has been “specifically

designated in writing by the probation officer,” is present to supervise. 

Probation officers have broad statutory authority to advise and supervise

persons on supervised release to improve the releasees’ conduct and lives, and

to “perform any other duty thatthe court may designate.” See 18 U.S.C. §§ 3601,

3603(3), (10).6In Rodriguez’s case, the district court recognized the association

and residence restrictions should be flexible, and accordingly designated to the

probation officer the duties to advise and supervise Rodriguez with respect to

these restrictions. Our sister Circuits have consistently upheld conditions of

supervised release which require the prior approval of a probation officer, so long

as the district court has not abdicated its judicial responsibility. 

The Eighth Circuit concluded a supervised release condition which barred

the defendant from accessing or possessing a home computer without prior

approval of the probation officer was permissible because the prohibition was

related to the defendant’s history and because the ban on using a computer was
No. 07-51044

11

not absolute. United States v. Boston, 494 F.3d 660, 668 (8th Cir. 2007) (citing

United States v. Ristine, 335 F.3d 692, 696 (8th Cir. 2003)). Similarly, where a

district court proscribed a defendantfrom incurring credit charges without prior

approval of the probation officer, the Ninth Circuit upheld the condition of

supervised release because “[a]llowing the probation officer to monitor [the

defendant’s] finances [wa]s important to ensure that [the defendant complied

with the restitution requirement of his sentence].” United States v. Jeremiah,

493 F.3d 1042, 1046 (9th Cir. 2007). The Ninth Circuit determined such a

condition was “reasonably related to supervising his ability to make restitution

payments.” Id.

Where a district court imposed a condition of supervised release, which

barred a defendant from accessing the Internet or other similar computer

networks without prior approval from the U.S. Probation Office, the Third

Circuit upheld the condition because it related to the defendant’s prior conduct

and the need to protect the public. United States v. Crandon, 173 F.3d 122, 128

(3d Cir. 1999). On the other hand, the Third Circuit concluded a district court’s

delegation to a probation officer of the duty to determine what material was

“pornographic”to the extent necessary for the defendant’s rehabilitation was an

abdication ofthe district court’s judicial responsibility. UnitedStates v. Loy, 237

F.3d 251, 266 (3d Cir. 2001) (citing United States v. Mohammad, 53 F.3d 1426,

1438 (7th Cir. 1995)). The Third Circuit determined 

[a] condition with no core meaning beyond ‘whatever is necessary for

[the defendant’s] rehabilitation’ cannot be cured by allowing the

probation officer an unfettered power of interpretation, as this

would create one of the very problems against which the vagueness

doctrine is meant to protect, i.e., the delegation of ‘basic policy

matters to policemen . . . for resolution on an ad hoc and subjective
No. 07-51044

12

basis.’” 

Id. (citing Grayned v. City of Rockford, 408 U.S. 104, 109, 33 L. Ed. 2d 222, 92

S. Ct. 2294 (1972)). The Third Circuit concluded “without a more definitive

standard to guide the probation officer’s discretion, there [wa]s a real danger

that the prohibition on pornography may ultimately translate to a prohibition

on whatever the officer personally finds titillating.” Id. (citation omitted). 

The Ninth Circuit went the opposite direction of the Third Circuit and

upheld the delegation to the probation officer of the duty to assess the

appropriateness of “sexually stimulating or sexually oriented material” on the

basis the condition would “promote [the defendant’s] rehabilitation and to

protect the public.” United States v. Bee, 162 F.3d 1232, 1235 (9th Cir. 1998).

Yet, the Ninth Circuit determined a district court’s restriction of requiring a

defendant who had been convicted of possessing child pornography to seek the

prior approval of a probation officer to make software modifications was overly

broad and unworkable because of the fast-paced nature of software upgrading,

which could prevent the defendant from using any computer at work without

continually contacting his probation officer. United States v. Goddard, 537 F.3d

1087, 1091 (9th Cir. 2008). The Ninth Circuit concluded the condition was

unworkable and more restrictive than necessary. Id.

In the same case, however, the Ninth Circuit determined a supervised

release condition requiring the defendant to obtain prior approval from the

probation officer before using a post office box or receiving mail through a

private carrier was permissible because the defendant was not restricted from

receiving mail at a private residence or actually obtaining mail through a post

office box with prior approval of his probation officer. Id. at 1092-93. The Ninth
No. 07-51044

13

Circuit concluded the condition was “reasonably related to the goals of his

supervised release and impose[d] no greater a deprivation of liberty than [wa]s

reasonably necessary to discourage him from obtaining child pornography.” Id.

at 1093. 

In the case of an association restriction, the Third Circuit determined the

district court’s delegation of “absolute authority to the Probation Office to allow

any such contacts while providing no guidance whatsoever for the exercise of

that discretion” was untenable. United States v. Voelker, 489 F.3d 139, 154 (3d

Cir. 2007). Because the defendant had been sentenced to a lifetime of supervised

release, the Third Circuit concluded that designating the probation officer the

sole authority for deciding ifthe defendant could ever have unsupervised contact

with any minor, including his own children, was an impermissible “unbridled

delegation of authority.” Id. (citing Loy, 237 F. 3d at 266). The defendant’s

circumstances in Voelker, however, are distinguishable from Rodriguez’s

situation. Here, Rodriguez was only sentenced to three years of supervised

release, while the defendant in Voelker was sentenced to a lifetime of supervised

release. 

Therefore, the association condition permitting the probation officer to

designate an adult to supervise Rodriguez’s contact with minors does not

completely prohibit Rodriguez from contact with his children, or any children.

Rodriguez may associate with children under the age of eighteen so long as he

complies with the district court’s caveats to the association restriction. Hence,

the restriction is not absolute because Rodriguez may associate with minors,

including his own children, after his probation officer designates in writing an

adult who will supervise the contact. Cf. Goddard, 537 F.3d at 1091 (finding no
No. 07-51044

14

absolute bar as a result of condition because probation officer could consent to

activity).

Similarly, the district court’s residence restriction does not bar Rodriguez

from living within 1000 feet of the enumerated institutions completely.

Rodriguez is free to seek the advice of his probation officer. In accordance with

the probation officer’s statutory duties to assist Rodriguez in improving his

conduct and condition,the probation officer may permit Rodriguez to reside near

these institutions, in keeping with the district court’s considerations in

sentencing Rodriguez, including protecting the public from Rodriguez. See 18

U.S.C. §§ 3583, 3603. The district court’s delegation of these duties to

Rodriguez’s probation officer in accordance with the statutory and Sentencing

Guidelines, rather than with unfettered power of interpretation, see Loy, 237

F.3d at 266 (citing Grayned, 408 U.S. at 109, 33 L. Ed. 2d 222, 92 S. Ct. 2294),

limits the breadth of the restriction, removes any arbitrariness from the district

court’s sentencing decision, and imposes no “greater deprivation of liberty than

is reasonably necessary.”

B. Association Restriction

In disputing the association restriction, Rodriguez directs this court’s

attention to the Eighth Circuit’s opinion in United States v. Davis, 452 F.3d 991,

995 (8th Cir. 2006). Based upon Davis, Rodriguez argues “there is no evidence

that [he] ever endangered his two children or that he would do so while on

supervised release” to merit the association restriction. In Davis, the Eighth

Circuit determined the district court plainly erred in precluding the defendant

from having any unsupervised contact “with persons/females/males under the

age of 18,” including his own daughter, as a condition of supervised release. 452
No. 07-51044

7 The Eighth Circuit upheld similar supervised release conditions, United States v.

Crume, 422 F.3d 728 (8th Cir. 2005), because the defendant’s daughter was conceived as the

result of defendant impregnating a minor. See also United States v. Heidebur, 417 F.3d 1002

(8th Cir. 2005) (upholding supervised release conditions because the defendant had taken

sexually explicit pictures of his step-daughter). 

15

F.3d at 994. The defendant argued “the condition interfer[ed] with his parental

rights to a greater degree than [wa]s reasonably necessary.” Id. at 995 (emphasis

added). 

In Davis, the defendant was convicted of possessing child pornography.

Id. at 993. The Eighth Circuit noted, however, “[t]here [wa]s no evidence in the

record that Mr. Davis [] ever sexually abused a child or that he would try to

abuse his daughter once released from prison.” Id. at 995. In the absence of

such evidence, the Eighth Circuit found the challenged condition “would

interfere with Mr. Davis’s constitutional liberty interest in raising his own

child.” Id. Therefore, the Eighth Circuit concluded “a condition of supervised

release that limit[ed] Mr. Davis’s access to his daughter [wa]s not reasonably

necessary either to protect Mr. Davis’s daughter or to further his rehabilitation.”

Id. The Eighth Circuit recognized it upheld similar restrictions in other cases,

but it did so because “there were additional facts that justified the condition.”7

Id.

The instant case is distinguishable from Davis because there is unrebutted

evidence in the PSR that Rodriguez sexually assaulted a minor. Here, “there

[a]re additional facts that justif[y] the condition.” See id. Rodriguez violated a

close familial relationship by sexually assaulting his girlfriend’s daughter. Not

only did the evidence in the PSR support this, but Rodriguez also did not deny

the charge. The Eighth Circuit has similarly upheld an association restriction
No. 07-51044

16

where the defendant violated a close familial relationship by photographing his

step-daughter in a sexually explicit manner. See Heidebur, 417 F.3d at 1005-06.

Congress has made clear that children, including Rodriguez’s, are

members of the public it seeks to protect by permitting a district court to impose

appropriate conditions on terms of supervised release. See 18 U.S.C. §§

3583(d)(2), 3553(a)(2)(C). Rodriguez has at least one conviction involving

violence against a pregnant woman. He is a repeat offender of driving under the

influence of alcohol. Furthermore, unlike the defendant in Davis, here the PSR,

the truthfulness of which Rodriguez has never disputed, shows Rodriguez has

actually harmed a child. In addition, the PSR indicates that Rodriguez’s ex-wife

feared Rodriguez’s visitation with the children because he might take off with

them.

Any liberty interest Rodriguez has in freely associating with minors and

raising his own children is outweighed by the need to protect them. Therefore,

restricting Rodriguez from having contact with children, including his own,

except under the supervision of another adult designated in writing by the

probation officer, is not overly broad because the restriction provides no “greater

deprivation of liberty than is necessary”to protect his children and other minors.

Other courts have found similar conditions of supervised release to be

permissible. See United States v. Levering, 441 F.3d 566, 568-69 (8th Cir. 2006)

(upholding special condition of supervised release prohibiting all contact with

female children under age 18, including the defendant’s children, unless

approved by the probation officer); United States v. Smith, 436 F.3d 307 (1st Cir.

2006) (upholding supervised release condition requiring defendant to stay away

from his minor daughter unless and until the probate court ordered otherwise).
No. 07-51044

8 Rodriguez does not contend the residence restrictions imposed by the district court

inhibited his ability to live with a family member, who may live within 1000 or 100 feet of

these locations,thereby, potentially impeding his rehabilitation or interfering with his intimate

associations. See Woods, 547 F.3d at 516. Therefore, the court will not address such a

contention.

9 This court’s cursory literature research revealed studies by the National Center for

Education Statistics, explaining “dual enrollment” (also known as “dual credit”), a program

whereby high school students can participate in college-level courses and earn college

credits, is “an area in which interest has grown rapidly over the past decade.” BRIAN

KLEINER & LAURIE LEWIS, DUAL ENROLLMENT OF HIGH SCHOOL STUDENTS AT

POSTSECONDARY INSTITUTIONS: 2002–03, 1, (NCES 2005–008), U.S. Dep’t of Educ., Nat’l

Ctr for Educ. Statistics (2005) (“DUAL ENROLLMENT”); TIFFANY WAITS, J. CARL SETZER, &

LAURIE LEWIS, DUAL CREDIT AND EXAM-BASED COURSES IN U.S. PUBLIC HIGH SCHOOLS:

2002–03, 1, (NCES 2005–009), U.S. Dep’t of Educ., Nat’l Ctr for Educ. Statistics (2005)

(“DUAL CREDIT”). “[C]ourses for dual enrollment c[an] be taught on a college campus, on a

high school campus, or at some other location.” DUAL ENROLLMENT at 2. Among the

17

Therefore, pursuant to Gall’s deferential abuse-of-discretion standard, the

district court did not err in imposing the association condition. 

C. Residence Restriction

The residence restriction, though encompassing, is not overly broad,

either.8 Congress has mandated such a restriction is permissible if it imposes

“no greater deprivation of liberty than is necessary” to protect the public. See 18

U.S.C. §§ 3583(d), 3563(b)(13). Here, the district court tailored the residence

restriction by permitting Rodriguez to live within a 1000 or 100 feet of such

areas with the prior approval of his probation officer. Therefore, the restriction

is not absolute, and Rodriguez may live in such areas if improvements in his

conduct and condition might occur as a result of living in such areas. See id. §

3603(3). Likewise, the residence restriction is not overly broad because it

prevents Rodriguez from having contact with minors in places where minors are

present and potentially vulnerable. Though not well-developed in the Record,

it is well-established that minors can be found at these various institutions.9
No. 07-51044

institutions with “dual enrollment” programs, eighty percent of them offered courses to high

school students on college campuses, and twelve percent of them offered courses at other

locations. Id. at 9. 

During the 2002-2003, twelve-month academic school year, seventy-one percent of

public high schools offered “dual credit” courses. DUAL CREDIT at 4. Approximately

813,000 high school students took college-level courses through post-secondary institutions

during the 2002-2003, twelve-month academic school year, which represents about five

percent of all high school students. DUAL ENROLLMENT at 7. These statistics demonstrate

high school students are indeed present at these institutions. See id. at 2, 7. 

18

Restricting Rodriguez’s access to these areas is a measure which serves to

protect the public and deters Rodriguez from criminal conduct. See 18 U.S.C. §

3583(d)(3). Based upon the information in the PSR,the district court reasonably

concluded the residence restriction would prevent harm to the numerous

individuals who attend such institutions. The condition does not impose a

“greater deprivation of liberty than is necessary” to protect the public who

attends such institutions. See id. The district court, therefore, remained within

the bounds of its discretion when it imposed the residence restriction. 

CONCLUSION

For the reasons stated, the judgment of the district court is AFFIRMED.