United States v. Soule

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 1, 2023
• Docket: 22-8001
• Status: Unpublished

Opinion

Appellate Case: 22-8001 Document: 010110806524 Date Filed: 02/01/2023 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT February 1, 2023 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 22-8001 (D.C. No. 2:06-CR-00166-SWS-1) ROBERT H. SOULE, (D. Wyo.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before MORITZ, BRISCOE, and CARSON, Circuit Judges. _________________________________

Robert Soule challenges a special condition of his supervised release that

prohibits him from accessing, possessing, sending, or receiving sexually explicit

materials. He argues that the district court abused its discretion by imposing this

special condition without making sufficiently particularized findings on the record.

We agree and therefore vacate the special condition and remand for further

proceedings.

* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). Appellate Case: 22-8001 Document: 010110806524 Date Filed: 02/01/2023 Page: 2

Background

In 2006, Soule pleaded guilty to one count of possession of child pornography.

The district court sentenced him to 130 months in prison and 15 years of supervised

release. As relevant here, the district court imposed a special condition of supervised

release that prohibited Soule from “possess[ing], send[ing,] or receiv[ing] any

pornographic, sexually oriented, or sexually stimulating visual, auditory,

telephonic[,] or electronic signs, signals[,] or sounds from any source, unless part of

a treatment regimen.” R. vol. 1, 25.

Soule began serving his term of supervised release in November 2015. About

one year later, in October 2016, the district court modified Soule’s supervised-release

conditions by ordering him to report to a six-month residential reentry program after

his probation officer determined that he “would benefit from living in an

environment where he will not have the temptation of uncontrolled access to the

internet and pornography.” Id. at 33. The probation officer based his determination,

in part, on a police report alleging that Soule had attempted to print photographs of

“a topless male” and “young males in sexual positions.” Id. The district court

modified Soule’s conditions again in May 2020, this time prohibiting Soule from

using and possessing alcohol and other intoxicants. And in November 2021, the

district court placed Soule on a 60-day alcohol monitoring program. Soule consented

to each of these modifications.

From September to November 2021, Soule violated his supervised-release

conditions by testing positive for alcohol consumption four times and failing to

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report to his probation officer twice. After Soule admitted to these violations, the

district court revoked supervised release and sentenced him to a seven-month prison

term followed by five years of supervised release. For the supervised-release term,

the district court imposed a modified version of the special condition it had

previously imposed:

The [d]efendant shall not access, possess, send, or receive any material that depicts sexually explicit conduct as defined under 18 [U.S.C. §] 2256(2)(A) in any format including, but not limited to, images, books, writings, drawings, video games, or visual depiction of such conduct as defined in [§] 2256(5); any material constituting or containing child pornography as defined under [§] 2256(8); or any material constituting or containing the obscene visual representation of sexual abuse of children as defined under [18 U.S.C. §] 1466A.

The [d]efendant shall not visit bulletin boards, chat rooms, or other internet sites where any material referenced above is discussed.

R. vol. 4, 44–45 (emphasis added).1

Soule’s counsel objected to the modified special condition, arguing that it

requires particularized findings and is vague. The district court disagreed and

determined that the condition was appropriate in this case based on Soule’s state-

court convictions for possession of child pornography in 2001; a recommendation

from a psychosexual assessment prepared by a licensed clinical social worker in

2003; a Sex Offender Management Program (SOMP) discharge evaluation prepared

by the Bureau of Prisons (BOP) in 2015; and the police report that resulted in the

1 The district court made this modification in light of United States v. Koch, which addressed a challenge to the same special condition imposed at Soule’s initial 2006 sentencing and expressed concern about that condition’s “exceedingly broad” language. 978 F.3d 719, 722 n.1 (10th Cir. 2020). 3 Appellate Case: 22-8001 Document: 010110806524 Date Filed: 02/01/2023 Page: 4

October 2016 modification to Soule’s supervised-released conditions. The district

court recognized that Soule had since completed a sex-offender treatment program

and received individual counseling, which suggested that the condition may no longer

be necessary. But without an updated “psychosexual assessment, eliminating any

concerns as to [Soule’s] viewing and/or possession of pornography, child or adult,”

the district court remained concerned about the need for the condition “based upon

the information that ha[d] been provided.” Id. at 46. It invited Soule to seek

modification of the condition, but only if he first underwent a psychosexual

assessment that showed the condition was no longer necessary. Until then, it “would

find that th[e] condition is supported by the facts, information, background, history,

characteristics, and the assessments that were made.” Id. at 47.

Soule appeals.

Analysis

“When a defendant objects to a special condition of supervised release at the

time it is announced, we review the imposition of the special condition for abuse of

discretion.” United States v. Englehart, 22 F.4th 1197, 1207 (10th Cir. 2022). “A

district court abuses its discretion only where it (1) commits legal error, (2) relies on

clearly erroneous factual findings, or (3) where no rational basis exists in the

evidence to support its ruling.” Id. (quoting United States v. A.S., 939 F.3d 1063,

1070 (10th Cir. 2019)). Here, Soule argues that the district court abused its discretion

by not making the particularized findings required to impose the special condition.

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Our precedents make clear that before imposing any special condition of

supervised release, the district court “must analyze and generally explain how, with

regard to the specific defendant being sentenced, the special condition furthers the

three statutory requirements set out in 18 U.S.C. § 3583(d).” Koch, 978 F.3d at 725.

That is, the district court must analyze and generally explain how the special

condition (1) is “reasonably related” to the particular offense at hand, the defendant’s

history and characteristics, the deterrence of criminal conduct, the public’s

protection, or the defendant’s correctional needs; (2) “involve[s] no greater

deprivation of liberty than is reasonably necessary” to deter criminal activity, protect

the public, and promote the defendant’s rehabilitation; and (3) is consistent with any

relevant policy statements from the United States Sentencing Commission. United

States v. Martinez-Torres, 795 F.3d 1233, 1236 (10th Cir. 2015) (quoting § 3583(d)).

“Although we generally are ‘not hypertechnical in requiring the court to explain why

it imposed a special condition of release—a statement of generalized reasons

suffices—the explanation must be sufficient for this court to conduct a proper

review.”’ Englehart, 22 F.4th at 1207 (quoting Koch, 978 F.3d at 725).

Moreover, if the special condition “invades a fundamental right or liberty

interest,” the district court must also “justify the condition with compelling

circumstances.” United States v. Burns, 775 F.3d 1221, 1223 (10th Cir. 2014). For

instance, when, as here, the district court imposes a special condition that “implicates

constitutional interests, such as the right to possess sexually explicit materials

involving adults, more detail may be required if the reasons for the restriction are not

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matters of common knowledge.” Martinez-Torres, 795 F.3d at 1238 (citation

omitted). Specifically, because this kind of “special condition implicates a

fundamental right or interest,” the district court must conduct a “meaningful and

rigorous analysis” supporting its imposition. Koch, 978 F.3d at 726. The district court

satisfies this standard if it “(1) make[s] particularized findings that are specific to

[the defendant’s] history and characteristics, (2) explain[s] how the specific condition

furthers the statutory goals of supervised release, and (3) balance[s] those goals

against the [constitutional] concerns raised by the condition.” Englehart, 22 F.4th at

1211.

We agree with Soule that the district court here failed to engage in the

meaningful and rigorous analysis required to impose the special condition. To be

sure, as the government points out, the district court did reference some evidence

that, in its view, justified imposing the special condition, including the similar

condition recommended in Soule’s 2003 psychosexual assessment; the BOP’s 2015

SOMP discharge evaluation; Soule’s 2001 state-court convictions for possessing

child pornography; and the 2016 police report alleging that Soule had attempted to

print sexually explicit photographs of seemingly underage males. Upon referencing

that evidence, the district court made a conclusory statement in an apparent attempt

to satisfy § 3583(d)(1) that the condition was “supported by the facts, information,

background, history, characteristics, and the assessments that were made.” R. vol. 4,

47. Then, in an apparent attempt to satisfy § 3583(d)(2), it asserted that the condition

“involve[d] no greater deprivation of liberty than [wa]s reasonably necessary for

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deterring criminal activity, protecting the public, and promoting [Soule’s]

rehabilitation.” Id. at 49. But the district court did not “analyze and generally explain

how . . . the special condition furthers the . . . statutory requirements set out in 18

U.S.C. § 3583(d).”2 Koch, 978 F.3d at 725 (emphasis added).

Simply put, this is not the kind of meaningful and rigorous analysis that our

caselaw requires. “[T]he district court ‘needed to explain why the restriction on legal

sexually explicit material was supported by the statutory factors in this case.’”

Englehart, 22 F.4th at 1209 (quoting Martinez-Torres, 795 F.3d at 1238). For

example, “[i]f the district court believed that there was some relationship between

[Soule’s] possession and use of adult pornography and the likelihood that he would

engage in sexual misconduct involving [children], the court should have explained

the basis for that conclusion.” Id. (emphasis added) (quoting United States v.

Perazza-Mercado, 553 F.3d 65, 76 (1st Cir. 2009)). Because the district court failed

to articulate such a relationship, we cannot assess whether the special condition

“satisfies the statutory imperatives set out in [§ 3583(d)], let alone the requirement

that any such special condition, given that it implicates a fundamental right, serves a

compelling governmental interest.” Koch, 978 F.3d at 726. Likewise, though the

2 The district court also did not discuss whether the condition “is consistent with any pertinent policy statements issued by the Sentencing Commission.” § 3583(d)(3). The government asserts that this is because “[t]here are no pertinent policy statements issued by the Sentencing Commission regarding the imposition of a condition prohibiting possession/access of sexual materials.” Aplee. Br. 20. We need not decide whether that is correct because, as explained above, the district court inadequately analyzed the other two statutory requirements, § 3583(d)(1) and (2). 7 Appellate Case: 22-8001 Document: 010110806524 Date Filed: 02/01/2023 Page: 8

district court stated in a conclusory fashion “that the condition is not overly broad” in

light of the statutory goals of supervised release, R. vol. 4, 47, it is at best unclear

what “compelling circumstances” overcame the First Amendment concerns

implicated by this special condition, Koch, 978 F.3d at 724.

The government counters that the district court made sufficiently

particularized findings to justify imposing the special condition because the

documents the district court alluded to specifically explain why Soule’s possession of

sexually explicit material presents a risk of reoffending. “Maybe so, but that is not

the same as showing that the district court ‘set forth, on the record, defendant-

specific findings.’” Englehart, 22 F.4th at 1211 (quoting Koch, 978 F.3d at 726).

Perhaps information in the referenced documents justify imposing the condition on

Soule. But we have made clear that the district court itself must engage in that

meaningful and rigorous analysis. And even if we were to overlook that requirement

and accept the explanation supplied in the documents themselves, the district court

still needed to “balance any . . . purpose [served by the condition] against

[constitutional] concerns,” keeping in mind that only “compelling circumstances will

overcome those concerns.” Id. at 1210, 1211. Yet it did not do so here.

For similar reasons, we reject the government’s suggestion that we may

remedy any inadequacies in the district court’s explanation by “infer[ring] the district

court’s reasoning [from] the record.” Aplee. Br. 21. We have unequivocally stated

that a “district court is required to give reasons on the record for the imposition of

special conditions of supervised release.” United States v. Hahn, 551 F.3d 977, 982

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(10th Cir. 2008) (emphasis added). And when it fails to do so, “we ‘decline to enter

the zone of appellate speculation in reviewing for abuse of discretion.’”3 United

States v. Kravchuk, 335 F.3d 1147, 1159 (10th Cir. 2003) (quoting United States v.

Zanghi, 209 F.3d 1201, 1205 (10th Cir. 2000)). Because the district court here did

not make the requisite findings on the record, “we will not make those findings in the

first instance” on appeal. Englehart, 22 F.4th at 1213. We accordingly hold that the

district court abused its discretion in imposing the special condition on Soule under

these circumstances.4

Conclusion

For these reasons, we vacate the special condition and remand for further

Entered for the Court

Nancy L. Moritz Circuit Judge

3 The government asserts that Martinez-Torres suggests otherwise. But the portion of that decision the government cites simply discusses two out-of-circuit cases in which appellate courts assessed whether “the district court’s reasoning [could] be inferred from the record”; it does not purport to adopt a similar approach for the Tenth Circuit. 795 F.3d at 1239. And to the extent that Martinez-Torres elsewhere suggests adoption of such an approach, we adhere to our earlier, settled precedents in which we have declined to speculate on reasons supporting a special condition that the district court itself did not provide on the record. See United States v. Hansen, 929 F.3d 1238, 1256 (10th Cir. 2019). 4 Because this conclusion is sufficient to vacate the special condition, we need not address Soule’s alternative argument that the district court also abused its discretion by requiring him to disprove the need for imposing that condition. 9