United States v. Parrish Kappes

Case Information

Before B AUER , F LAUM , and T INDER , Circuit Judges . T INDER , Circuit Judge

. Wе resolve three appeals in a single opinion because the appeals raise similar challenges to con- ditions of supervised release. Although supervised release has been a feature of the federal criminal justice system for nearly thirty years, with over a million federal defendants having been sentenced to supervised-release terms, during the past several years we have addressed certain aspects of supervised release for the first time. ^[1] Some defendants, judges, lawyers, and probation officers might characterize our recent focus on these issues as better late than never, while others might grumble that we are trying to fix an un- broken system. In any event, we hope our recent jurispru- dence results in the imposition of supervised-release condi- tions that are properly-noticed, supported by adequate find- ings, and well-tailored to serve the purposes of deterrence, rehabilitation, and protection of the public.

The first section of this opinion provides an overview of the system of supervised release, including four general sen- tencing principles judges should consider. Next, we outline the history, crimes, and sentencings of the three defendants at issue. Then, we address the specific supervised-release challenges raised by each defendant, organized by the four general sentencing principles. Lastly, we consider Defendant Crisp’s contention that the sentencing judge failed to consid- er one of his principal mitigation arguments.

(7th Cir. 2015); United States v. Cary , 775 F.3d 919 (7th Cir. 2015); United States v. Hinds , 770 F.3d 658 (7th Cir. 2014); United States v. Johnson , 765 F.3d 702 (7th Cir. 2014); United States v. Farmer , 755 F.3d 849 (7th Cir. 2014); United States v. Baker , 755 F.3d 515 (7th Cir. 2014); United States v. Bryant , 754 F.3d 443 (7th Cir. 2014); United States v. Siegel , 753 F.3d 705 (7th Cir. 2014); United States v. Poulin , 745 F.3d 796 (7th Cir. 2014); United States v. Shannon , 743 F.3d 496 (7th Cir. 2014); United States v. Adkins , 743 F.3d 176 (7th Cir.), cert. denied , 134 S. Ct. 2864 (2014); United States v. Wil- liams , 739 F.3d 1064 (7th Cir. 2014); United States v. Evans , 727 F.3d 730 (7th Cir. 2013); United States v. Goodwin , 717 F.3d 511 (7th Cir.), cert. de- nied , 134 S. Ct. 334 (2013); United States v. Quinn , 698 F.3d 651 (7th Cir. 2012).

I. Supervised Release

In 1984, Congress passed the Sentencing Reform Act, which replaced the federal parole system with the system of supervised release. See 18 U.S.C. § 3583; see generally S. Rep. No. 98-225 (1983), reprinted in 1984 U.S.C.C.A.N. 3182. The parole system allowed a convicted defendant to be released prior to the expiration of his prison term on conditions de- signed to reduce the likelihood of his committing further crimes. Parole was criticized for creating uncertainty as to how long a particular defendant would actually spend in prison—i.e., the judicially-imposed sentence was not consid- ered the “real sentence” because it was “subject to constant adjustment by the parole commission”—which was viewed as undermining public respect for the law and defendants’ morale. S. Rep. No. 98-225, at 56.

Under the rеplacement system of supervised release, judges impose conditions at sentencing which take effect af- ter the completion of the defendant’s prison term, and, in contrast to parole, do not reduce the length of the custodial portion of a defendant’s sentence. ^[2] The purposes of super- vised release have been variously described as rehabilitation, deterrence, training and treatment, protection of the public, and reduction of recidivism. See United States v. Johnson , 529 U.S. 53, 59–60 (2000); United States v. Siegel , 753 F.3d 705, 708 (7th Cir. 2014); United States v. Evans , 727 F.3d 730, 733 (7th Cir. 2013). Supervised release was not intended to be im- posed for the purposes of punishment or incapacitation, “since those purposes will have been served to the extent necessary by the term of imprisonment.” S. Rep. No. 98-225, at 125; see also Johnson , 529 U.S. at 59 (“Supervised release fulfills rehabilitative ends, distinct from those served by in- carceration.”); cf . 18 U.S.C. § 3583(c) (directing a court con- templating the imposition of supervised release to consider most sentencing factors set forth in 18 U.S.C. § 3553(a), except the need for the sentence to provide just punishment for the offense). The Supreme Court has described supervised re- lease as “the decompression stage” between prison and full release. Johnson v. United States , 529 U.S. 694, 709 (2000). “Prisoners may, of course, vary in the degree of help needed for successful reintegration. Supervised release departed from the parole system it replaced by giving district courts the freedom to provide postrelease supervision for those, and only those, who needed it. Congress aimed, then, to use the district courts’ discretionary judgment to allocate super- vision to those releasees who needed it most.” Id . (citation omitted).

In some felony cases, including certain cases involving drug-trafficking, sex offenses and domestic violence, super- vised release is mandated by statute. See, e.g. , 18 U.S.C. § 3583(a), (k); 21 U.S.C. §§ 841(b), 960(b). Between 2005 and 2009, approximately 41 percent of sentenced federal defend- ants were subject to statutes mandating supervised release. See U.S. Sentencing Comm’n, Federal Offenders Sentenced to Supervised Release at 69 n.275 (2010), available at http://www.ussc.gov/sites/default/files/pdf/research-and- publications/research-publications/2010/20100722_ Supervised_Release.pdf (last visited Mar. 26, 2015, as were all websites in this opinion) . Although the sentencing guidelines call for supervised release in all remaining cases with a pris- оn sentence of more than one year (with limited exceptions), see U.S.S.G. § 5D1.1(a)(2), the Supreme Court made the rele- vant provisions of the guidelines discretionary in 2005. See United States v. Booker , 543 U.S. 220, 245 (2005); United States v. Parker , 508 F.3d 434, 442 (7th Cir. 2007). The change from supervised release being mandatory to discretionary has made little practical difference: between 2005 and 2009, dis- trict courts imposed a term of supervised release in 99.1 per- cent of cases with a prison sentence in excess of one year but not subject to statutorily-mandated supervised release. U.S. Sentencing Comm’n, Federal Offenders Sentenced to Super- vised Release at 7, 52 n.241. So while supervised release may have been intended “for those, and only those, who needed it,” Johnson , 529 U.S. at 709, the reality is that virtually all federal defendants who spend at least a year in custody are subject to supervised release.

The sentencing procedure generally is as follows. First the probation officer conducts a presentence investigation which culminates in the preparation of a presentence report. See 18 U.S.C. § 3552(a), (b); Fed. R. Crim. P. 32(c), (d). The presentence report identifies the kinds of sentences availa- ble, including the terms of supervised release which may be appropriate. See Fed. R. Crim. P. 32(d)(1)(C). The presen- tence report is disclosed to the parties at least 35 days before sentencing, and the parties state in writing any objections 14 days later. See Fed. R. Crim. P. 32(e)(2), (f)(1). At least seven days before sentencing, the presentence report, including any addenda addressing objections, is submitted to the court and the parties. See Fed. R. Crim. P. 32(g).

At the sentencing hearing, the sentencing judge hears from the lawyers, the defendant and any victims who are present, and may receive evidence related to objections. See Fed. R. Crim. P. 32(i). Ultimately, the judge engages in a two- part analysis. First, the judge determines the defendant’s sentencing range under the guidelines. United States v. Ad- kins , 743 F.3d 176, 189 (7th Cir.), cert. denied , 134 S. Ct. 2864 (2014). Second, the judge makes “an individualized assess- ment of the appropriate sentence based on the § 3553(a) fac- tors.” Id. (quotation omitted). Any term of supervised release is considered part of the overall sentence. Id . at 192. In de- termining whether to include a term of supervised release, and, if so, in determining the length of the term and the con- ditions of supervised release, the judge is required to con- sider the factors set out in 18 U.S.C. §§ 3553(a) and 3583(c)– (d), which are discussed below.

The sentencing judge’s difficult task is not undertaken on a completely blank slate, but rather is structured by statutes and the guidelines, which recommend a range of terms of supervised release depending upon the category of offense, see 18 U.S.C. § 3583(b), and list certain mandatory and dis- cretionary conditions, see id. §§ 3563(a)–(b), 3583(d); U.S.S.G. § 5D1.3. Some of the discretionary conditions are called “standard,” U.S.S.G. § 5D1.3(c), while others are called “spe- cial,” id . § 5D1.3(d)–(e), and are recommended for particular offenses. Sentencing judges also are empowered to “impose conditions of their own devising.” Siegel , 753 F.3d at 707.

After the sentencing judge exercises his or her “wide dis- cretion in determining conditions of supervised release” at sentencing, Adkins , 743 F.3d at 193 (quotation omitted), the judge typically has no further occasion to consider the de- fendant’s supervised release until after the defendant has completed the custodial portion of his sentence, begun serv- ing supervised release under supervision by a federal proba- tion officer, and the district court is presented with a motion for modification, revocation, or termination of supervised release. See 18 U.S.C. § 3583(e). Although not currently man- dated by statute or the guidelines, we have suggested that sentencing judges “[r]equire that on the eve of his release from prison, the defendant attend a brief hearing before the sentencing judge (or his successor) in order to be reminded of the conditions of supervised release.” Siegel , 753 F.3d at 717. This “would also be a proper occasion for the judge to consider whether to modify one or more of the conditions in light of any changed circumstances brought about by the de- fendant’s experiences in prison.” Id . Adopting this sugges- tion would help mitigate the inherent difficulty in imposing conditions at sentencing which do not go into effect until the defendant is released from custody—often many years in the future. See id . at 708. A defendant may change substantially during a long prison sentence, and the world outside the prison walls may change even more. A judgeship does not come equipped with a crystal ball.

The sentencing judge may terminate supervised release at any time after one year of supervision, if the judge deter- mines such action is warranted by the defendant’s conduct and serves the interests of justice. 18 U.S.C. § 3583(e)(1). For exаmple, of the 42,984 active supervised release cases that closed during the 12-month period ending September 30, 2014, 13 percent were terminated early by the court. See Admin. Office of the U.S. Courts, Post-Conviction Supervi- sion, Table E-7A, available at http://www.uscourts.gov/ uscourts/Statistics/JudicialBusiness/2014/appendices/E7ASep 14.pdf. Approximately 68 percent of supervised release cases closed during the same period were closed “successfully”, i.e., terminated (whether early or not) without revocation. Id . Approximately 61.3 percent of the supervised release viola- tions during this period were for “technical violations” (such as failure of a drug test, failure to report to a supervising probation officer, or non-payment of financial conditions), 32.3 percent were for “major” violations (i.e., criminal of- fenses with a sentence of more than 90 days imprisonment), and 6.4 percent were for “minor” violations (i.e., criminal offenses with a sentence of 90 days or less of imprisonment). Id .

The three cases here concern legal issues arising at the original sentencing hearing, when the sentencing judge im- posed a term of supervised release and selected the condi- tions and length of the term. We organize our discussion of the defendants’ challenges around four general principles sentencing judges should consider when imposing condi- tions of supervised release: (1) the importance of advance notice of conditions being considered; (2) the need to justify the conditions and the length of the term at sentencing by an adequate statement of reasons, reasonably related to the ap- plicable § 3553(a) factors; (3) the goal of imposing only spe- cific, appropriately-tailored conditions—which is to say, avoiding the imposition of vague or overbroad conditions; and (4) the requirement to orally pronounce all conditions, with the written judgment only clarifying the oral pro- nouncement in a manner that is not inconsistent with an un- ambiguous oral provision. Prior to turning to the defend- ants’ challenges, we outline the history and offenses of the three defendants at issue.

II. Defendants’ History and Offenses A. Jeffrey Jurgens

Defendant Jeffrey Jurgens is the product of a deplorable childhood. He grew up in a rural Illinois house that was strewn with garbage due to his mother’s hoarding; based upon the phоtos admitted at sentencing, his childhood home more closely resembled a landfill than a house. Jurgens’ mother was a neglectful alcoholic who “always had a beer in her hand,” and his father, also an alcoholic, abused her until they divorced when Jurgens was nine. No one taught Jurgens proper hygiene, and he was teased and bullied at school because he was dirty and smelled. Despite his up- bringing, Jurgens graduated from high school in 2003 and from DeVry University in 2005 with an associate’s degree. He continued to live with his mother until she died in 2007.

At the time of his mother’s death, Jurgens was 23. He moved into his own apartment and got a job with a tech company as a help-desk technician. He held that job for nearly six years until his arrest and detention in this case in 2013. During that time, he suffered severe social anxiety, left his apartment only for work and groceries, and allowed gar- bage to accumulate in his apartment because he feared en- countering other people when he took out the trash. He had occasional social contact with co-workers, but he has never dated or had an intimate relationship.

Beginning in about 2007, Jurgens developed an interest in pre-pubescent and adolescent girls and in child pornogra- phy. For the next five years, he used file-sharing software to find child pornography and downloaded files to his com- puter hard drives. On February 17, 2012, a Moline, Illinois, police detective executed a search warrant at Jurgens’ apartment and seized three computer hard drives containing 69 videos of child pornography. After waiving his Miranda rights, Jurgens told the detective that he had been watching child pornography for about five years and knew it was ille- gal. Jurgens said he did not pursue or have any contact with minors. He said, “I can’t do anything when they are not here.”

On September 25, 2013, a grand jury charged Jurgens with one count of receipt and distribution of child pornog- raphy in violation of 18 U.S.C. § 2252A(a)(2)(A), and one count of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). On October 24, 2013, Jurgens plead- ed guilty to both counts without a written plea agreement.

On January 15, 2014, a probation officer filed an initial presentence report, which was later revised on March 13, 2014, to reflect Jurgens’ objections. The report stated that the statute required a minimum sentence of fivе years’ impris- onment and a supervised-release term of five years to life on each count. The report indicated that the advisory guidelines range was 151 to 188 months of imprisonment and the guidelines recommended a life term of supervised release. The report stated, “[i]n addition to standard conditions of supervised release … found at U.S.S.G. § 5D1.3, the Court may impose the following special conditions,” and listed seven “special conditions.” An addendum to the report indi- cated that Jurgens objected to five of the proposed special conditions.

At a hearing originally scheduled for sentencing, the dis- trict court ordered Jurgens to undergo a psychosexual eval- uation and reset the date for sentencing. A licensed counse- lor later diagnosed Jurgens with pedophilic disorder and so- cial anxiety disorder. The counselor recommended the same conditions of “community supervision” that the presentence report listed and recommend that Jurgens receive counseling to address his social anxiety in addition to sex offender treatment.

At the sentencing hearing on June 26, 2014, Jurgens’ at- torney objected to the proposed conditions of supervised re- lease which use “these very broad and vague terms about ‘sexual arousal’ and ‘pornography’ and the like.” Jurgens’ attorney asked that the court fashion the conditions to “al- low for Mr. Jurgens to have contact with minors who are rel- atives of his and allow him to have contact with minors that are incidental to employment.” Jurgens’ attorney then spoke of the “irrationality” of U.S.S.G. § 2G2.2, ^[3] which produced a guidelines range of 151 to 188 months of imprisonment for Jurgens, and requested a sentence of 60 months of impris- onment and 10 years of supervised release. The government attorney requested a sentence of 108 months of imprison- ment and 20 years of supervised release.

After hearing from Jurgens himself, the district judge ad- dressed Jurgens’ offense in relation to other offenders, the harm to the victims, aggravating factors, and Jurgens’ per- sonal history and characteristics. The district judge then im- posed a sentence of 72 months of imprisonment and 20 years of supervised release. The judge imposed 13 standard condi- tions with no discussion, and six special conditions with dis- cussion of each. The judge rewrotе certain proposed special conditions to accommodate the objections raised by Jurgens’ counsel, and did not impose the special condition proposed by probation that Jurgens refrain from using the Internet for the purpose of sexual arousal.

Jurgens appeals, contending that the district judge pro- cedurally erred when she imposed 20 years of supervised release without addressing his request for 10 years or mak- ing appropriate findings. On appeal, Jurgens also challenges each of the 19 standard and special conditions of supervised release on the basis that they were imposed without appro- priate findings and are impermissibly vague and overbroad.

B. Parrish Kappes The details of Defendant Parrish Kappes’ childhood are different from Jurgens’, but the themes are similar. Kappes’ parents separated when he was an infant, and his mother took him to live in Arizona. In 1972, when Kappes was six years old, he flew alone to Illinois, where his father and grandmother lived. He had been physically abused and ne- glected by his mother, and he “looked rough” when he ar- rived in Illinois. He was given the choice of living with his father or grandmother, and he chose the latter, feeling that his father had earlier abandoned him. He lived with his grandmother for most of the next 40 years until his arrest and detention in this case. Kappes had not seen his mother since he was a child, and he told the probation officer during a pre-sentence interview that he could not remember his mother’s name. Although Kappes graduated from high school, he finished near the bottom of his class, and he told the probation officer he was illiterate. Although he main- tained steady employment from 2006 to 2012, he grew “ac- customed to being alone” and had difficulty socializing.

On October 15, 2012, law enforcement agents executed a search warrant at the Tuscola, Illinois, house that Kappes shared with his then-93-year-old grandmother. The agents found 2,319 images and 182 videos of child pornography on Kappes’ computer. Agents also found images taken by Kappes of a 17-year-old female in a bikini. After waiving his Miranda rights, Kappes admitted that he had been taking pictures of this female and others while they played in an outdoor pool adjacent to his home since the girl was aрprox- imately seven or eight years old. In a footlocker, the agents found over 30 pairs of children’s underwear which Kappes claimed to have stolen 20 years earlier when he worked as a furniture deliveryman.

Kappes was charged with three counts of distributing child pornography and one count of possessing child por- nography. After hearing two days of evidence, a jury found Kappes guilty on all counts. The presentence report stated that the guidelines range was 210 to 240 months of impris- onment and five years to life of supervised release. The re- port stated, “[i]n addition to standard conditions of super- vised release … found at U.S.S.G. § 5D1.3, the Court may impose the following special conditions,” and listed seven special conditions which largely mirrored those recom- mended in Jurgens’ presentence report. An addendum to the report stated that Kappes’ attorney had no objections to the report.

At sentencing, Kappes’ attorney reiterated that Kappes had no objections to the presentence report. Counsel for the government requested a sentence of 240 months of impris- onment and 25 years of supervised release. Government counsel said she was requesting the statutory maximum be- cause of, among other reasons, the graphic and violent im- ages in Kappes’ child pornography collection. Kappes’ coun- sel commented upon Kappes’ positive employment record and record of caring for his grandmother. Kappes declined to speak.

The district judge then discussed the “horrendous” na- ture and circumstances of the offense, and the “disturbing” character and history evidence of “taking pictures of neigh- bors’ children and saving panties for 20 years.” The district judge imposed a sentence of 240 months of imprisonment and 25 years of supervised release. The judge imposed 13 standard conditions and the seven special conditions rec- ommended in the presentence report.

Kappes appeals, contending that the district court erred by imposing (1) four special conditions which were not ade- quately supported by specific findings and are impermissi- bly vague or overbroad, (2) two special conditions which re- quired Kapрes to pay for court-ordered treatment and test- ing, and (3) three special conditions which appeared in the written judgment but were not orally pronounced at sen- tencing.

C. David Crisp, Jr. Defendant David Crisp, Jr. (“Crisp”) followed in the footsteps of his father, David Crisp, Sr. At the time Crisp was charged in this case with possession with intent to dis- tribute crack cocaine, his father was serving a sentence in federal prison for similar crack cocaine trafficking offenses. Crisp later reported to probation that his father was in- volved in his life when he was not incarcerated; however, “he was incarcerated frequently.” Crisp likewise was in- volved in his children’s lives when not incarcerated; he claimed to have committed the instant offense because he wanted to raise his one-year-old daughter and five-year-old step-son in “relative comfort” and “the minimum wage job of $8.25 an hour was just not cutting it.” Like his father be- fore him, Crisp—35 years old at the time of his last arrest— had amassed a substantial criminal history consisting of 32 arrests and 24 convictions (including four drug felonies) during the previous 18 years.

Crisp pleaded guilty without a written plea agreement. The presentence report stated that the guidelines range was 262 to 327 months of imprisonment and eight years of su- pervised release. The report stated, “[i]n addition to stand- ard conditions of supervised release … found at U.S.S.G. § 5D1.3, the Court may impose the following special condi- tions,” and listed four special conditions. An addendum to the report stated that Crisp’s attorney had no objections to the report.

On May 15, 2014, Crisp was sentenced in the same court- room where his father was sentenced in 2011. At the outset of sentencing, defense counsel reiterated that she had no ob- jections to the presentence report. Government counsel then recommended a sentence of 286 months of imprisonment and 10 years of supervised release. Defense counsel argued that, despite Crisp’s failure to enter into a plea agreement, “the Court can still consider the timeliness of [Crisp’s] coop- eration, the fact that he did render a proffer that was lengthy … and he did accept responsibility in a very, very quick manner.” Defense counsel asked the district judge “to depart from the bottom of the guideline range to the maximum amount that the Court feels is appropriate.”

After hearing from Crisp, the district judge discussed Crisp’s criminal history and said that his career offender sta- tus pursuant to the guidelines was appropriate. The judge said that Crisp had “rehabilitative potential” based upon Crisp’s allocution at sentencing and his “exceptional ac- ceptance of responsibility.” The judge imposed a sentence of 240 months of imprisonment and eight years of supervised release. The judge imposed 13 standard conditions and the four special conditions recommended in the presentence re- port.

Crisp appeals, contending that the district court erred by (1) imposing three conditions of supervised release which were not adequately supported by specific findings ‍‌‌‌​‌‌‌‌‌‌​‌​‌​‌‌‌​​​​​​‌‌‌‌‌‌‌‌‌‌‌​​‌‌​‌​​​‌‌​‌‍and are impermissibly vague or overbroad; and (2) failing to com- ment upon Crisp’s cooperation with law enforcement as a substantial mitigating factor.

III. Advance Notice of the Conditions The first general principle sentencing judges should con- sider when imposing conditions of supervised release is that it is important to give advance notice of the conditions being considered. In most instances, this principle fits into the cat- egory of recommended “best practice” rather than mandato- ry requirement. Advance notice is only required of super- vised release conditions that are not listed in a statute or the guidelines. United States v. Thompson , 777 F.3d 368, 377 (7th Cir. 2015) (collecting cases). This is because “[d]efendant and lawyer are charged with knowledge of the sentencing guide- lines, which list the standard conditions along with a num- ber of special ones.” United States v. Bryant , 754 F.3d 443, 446 (7th Cir. 2014).

Despite this charged knowledge, we have suggested that sentencing judges require the probation office to include any recommended conditions of supervised release—and the reasons for the recommendations—in the presentence report that is disclosed to the parties prior to the sentencing hear- ing. See Thompson , 777 F.3d at 377; Siegel , 753 F.3d at 716–17. We also have suggested, as a matter of “best practices,” that sentencing judges: (a) send a list of the conditions that the judge is contemplating (including the reasons) to the parties prior to the sentencing hearing; and/or (b) explain at the sen- tencing hearing what conditions the judge is inclined to im- pose and why, then ask the parties whether they object to any of them or hаve a reasonable need for more time to de- cide whether to object, and adjourn the hearing if necessary. Thompson , 777 F.3d at 377. An exception to these “best prac- tice” suggestions would be conditions of supervised release which are “administrative requirements applicable whenev- er a term of supervised release is imposed,” such as “requir- ing the defendant to report to his probation officer, answer the officer’s questions, follow his instructions, and not leave the judicial district without permission.” Thompson , 777 F.3d at 378. “Once the judge has explained why supervised re- lease is necessary, he should be permitted to impose the nec- essary incidents of supervision without explanation.” Id .

The goal of providing the parties with advance notice of the conditions at issue is to allow the parties to present an informed response. Cf. Irizarry v. United States , 553 U.S. 708, 715 (2008) (“Sound practice dictates that judges in all cases should make sure that the information provided to the par- ties in advance of the [sentencing] hearing, and in the hear- ing itself, has given them an adequate opportunity to con- front and debate the relevant issues.”); United States v. Scott , 316 F.3d 733, 735 (7th Cir. 2003) (“Knowledge that a condi- tion of this kind was in prospect would have enabled the parties to discuss such options intelligently.”). To the extent not required by rule or the sentencing judge, we recommend that defense counsel and government counsel make recom- mendations and/or objections regarding the proposed condi- tions of supervised release in advance of the sentencing hearing. Cf . Fed. R. Crim. P. 32(f)(1) (requiring parties to state in writing any objections to the presentence report within 14 days of receipt).

Jurgens’ sentencing offers an example of the utility of ad- vance notice by probation and timely objections by the de- fendant. Jurgens objected to four of the special conditions proposed in the presentence report, and the sentencing judge responded by changing the language in three of the objected-to conditions and declining to impose the fourth one entirely. It is our hope that the combination of advance notice, timely objections, and appropriate judicial response to the objections will result in conditions better tailored to fulfill the purposes of supervised release, less confusion and uncertainty, and perhaps—Jurgens’ case notwithstanding— fewer appeals.

The issue of advance notice of the proposed conditions is potentially relevant to our standard of review. See United States v. Farmer , 755 F.3d 849, 853 (7th Cir. 2014) (“[I]t seems problematic to conclude that the defendant waives objec- tions to special conditions if he does not properly confront conditions presented for the first time at the sentencing hear- ing.”). “We recently recognized some tension in our cases as to the proper standard of review” when a defendant fails to “object” (or, more accurately, take “exception”) after the sen- tencing judge imposes a condition to which the defendant had no notice, because, for example, the probation officer did not recommend it. United States v. Shannon , 743 F.3d 496, 499 (7th Cir. 2014) (collecting cases). In general, our rule has been that the imposition of contested conditions are re- viewed for an abuse of discretion, while uncontested condi- tions are reviewed for plain error. United States v. Ross , 475 F.3d 871, 873 (7th Cir. 2007); cf. United States v. Baker , 755 F.3d 515, 522 (7th Cir. 2014) (allegations of procedural error, such as whether a judge adequately explained his chosen sentence, are reviewed de novo ). Under either standard of re- view, we must be mindful of the fact that “[t]he sentencing judge is in a superior position to find facts and judge their import under § 3553(a) in the individual case,” and “district courts have an institutional advantage over appellate courts in making these sorts of determinations, especially as they see so many more Guidelines cases than appellate courts do.” Gall v. United States , 552 U.S. 38, 51–52 (2007) (quota- tions and alterations omitted).

The government contends that Jurgens, Kappes and Crisp received notice of the conditions they now challenge because all challenged conditions were recommended in the respective presentence reports. Accordingly, the government contends that plain error review is appropriate in each case because Kappes and Crisp did not object to the presentence report and each of Jurgens’ objections were accommodated 21 by the conditions ultimately imposed by the sentencing judge. Kappes concedes that plain error review applies to his vagueness and оverbreadth challenges. Jurgens argues that abuse of discretion review is appropriate to his challenges of the standard conditions because the presentence report merely incorporated the standard conditions by reference, rather than listing each standard condition in the report it- self. Crisp offers no opinion on the standard of review, argu- ing that the errors are reversible regardless of the standard of review.

We find that, with respect to the challenges we consider here, the outcome is the same regardless of the standard of review. See United States v. Hinds , 770 F.3d 658, 665 (7th Cir. 2014) (same); Farmer , 755 F.3d at 854 (same); Shannon , 743 F.3d at 500 (same). Despite this finding, we caution future defendants against withholding objections under the belief that we will continue to treat the abuse-of-discretion and plain-error standards of review as functionally interchange- able in this context. Under plain-error review, unlike abuse- of-discretion review, we are permitted but not required to order correction of an error. ^[4] United States v. Olano , 507 U.S. 725, 735 (1993) (“[Federal Rule of Criminal Procedure] 52(b) [governing plain error] is permissive, not mandatory. If the forfeited error is plain and affects substantial rights, the court of appeals has authority to order correction, but is not required to do so.” (quotation omitted)). A sentencing hear- ing is not meant to be a dress rehearsal.

IV. Statement of Reasons and Appropriate Tailoring The second principle—justifying the conditions by an ad- equate statement of reasons—and the third—imposing ap- propriately-tailored conditions—are interrelated. According- ly, after outlining the parameters of each principle, we dis- cuss the defendants’ challenges to specific conditions in con- nection with both rules.

A. Statement of Reasons The second general principle regarding the imposition of conditions of supervised release that we address is that a sentencing court must justify the conditions and the length of the term at sentencing by an adequate statement of rea- sons, reasonably related to the applicable § 3553(a) factors. See Bryant , 754 F.3d at 445. This “allow[s] for meaningful ap- pellate review”; it “promote[s] the perception of fair sentenc- ing”; and it is a vital element in maintaining the “uniform and constant” principle in the federal judicial tradition that “the sentencing judge … consider[s] every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue.” Gall , 552 U.S. at 50, 52 (quotation omitted).

The applicable factors are set out in 18 U.S.C. §§ 3553(a) and 3583(c)–(d). Section 3583(d) places the factors into three groups. First, the conditions of supervised release “must be reasonably related to (1) the defendant’s offense, history and characteristics; (2) the need for adequate deterrence; (3) the need to protect the public from further crimes of the defend- 23 ant; and (4) the need to provide the defendant with treat- ment.” United States v. Angle , 598 F.3d 352, 360–61 (7th Cir. 2010); see 18 U.S.C. § 3583(d)(1). Next, the conditions “cannot involve a greater deprivation of liberty than is reasonably necessary to achieve the goal of deterrence, incapacitation, and rehabilitation.” United States v. Goodwin , 717 F.3d 511, 522 (7th Cir.), cert. denied , 134 S. Ct. 334 (2013); see 18 U.S.C. § 3583(d)(2). Finally, the conditions must be consistent with any pertinent statement that the United States Sentencing Commission issues. ^[5] 18 U.S.C. § 3583(d)(3); cf. Siegel , 753 F.3d at 708 (noting that, logically, this factor is not applicable to conditions already listed in the guidelines). Unfortunate- ly, applying this “vague and general” list of unweighted fac- tors to a specific case is unwieldy in practice, “and cannot yield an objective result.” Siegel , 753 F.3d at 707.

The judge need not address every factor “in checklist fashion, explicitly articulating its conclusions regarding each one.” Shannon , 518 F.3d at 496; see United States v. Starko , 735 F.3d 989, 992 (7th Cir. 2013) (“Courts do not have to engage in a discourse of every single § 3553(a) factor; however, it is also the case that a rote statement that the judge considered all relevant factors will not always suffice.” (quotation omit- ted)). “[T]he court may simply give an adequate statement of reasons, consistent with § 3553(a), for thinking the sentence it selects is appropriate.” Shannon , 518 F.3d at 496. “[T]he more onerous the term [of supervised release], the greater the justification required—and … a term can become oner- ous because of its duration as well as its content.” United States v. Quinn , 698 F.3d 651, 652 (7th Cir. 2012); cf. Gall , 552 U.S. at 50 (“We find it uncontroversial that a major depar- ture [from the guidelines range] should be supported by a more significant justification than a minor one.”). “Special” conditions often require more justification than “standard” conditions—but not always—and a condition’s label in the guidelines is ultimately irrelevant. All discretionary condi- tions, whether standard, special or of the judge’s own inven- tion, require findings. See Bryant , 754 F.3d at 445. We empha- size that the judge need not give a speech about each condi- tion, but conversely, we believe sentеncing judges rarely, if ever, should list a multitude of conditions without discus- sion. This rule, however, is subject to a harmless error analy- sis. See Siegel , 753 F.3d at 713.

The fact that a sentencing judge may reduce or modify terms of supervised release at any time, see 18 U.S.C. § 3583(e)(2), may lead the judge to resolve uncertainties at the time of sentencing in favor of a long but reducible peri- od. “[S]till this is a subject that requires an explicit decision by the judge after considering the defendant’s arguments.” Quinn , 698 F.3d at 652. We also have advised sentencing judges to “consider the possibility of setting sunset dates for some of the more onerous terms, so that [the defendant] can regain more control of his own activities without needing a public official’s advance approval, while enough supervision remains to allow intervention should [the defendant] re- lapse.” Id . at 652–53. In Quinn , we vacated a term of super- vised release and remanded for resentencing when the judge rejected the defendant’s request for a 10-year term of super- vised release and instead imposed a lifetime term without discussion of the length of defendant’s supervision, the terms that he would be required to follow, or much of the defendant’s evidence that he presented a lower-than-normal risk of recidivism. See id . at 652.

Jurgens contends that the sentencing judge erred in im- posing a 20-year term of supervised release without discus- sion of his request for a 10-year term. Jurgens points to the statement in Quinn that it is not sufficient to simply choose a supervised release term within the guidelines range; “a judge still must consider a defendant’s serious arguments for a sentence below the Sentencing Commission’s recom- mendations.” Id . Jurgens contends that we should vacate the 20-year term and “remand with instructions that the district court consider the § 3583(c) factors when addressing Mr. Jurgens’s requested 10 year term of supervised release.”

The Sentencing Commission recommends the statutory maximum term of supervised release for every sex offense, see U.S.S.G. § 5D1.2(b)(2), and any sentence within the guide- lines range is “entitled to a presumption of substantive rea- sonableness.” Quinn , 698 F.3d at 652 (citing, inter alia , Rita v. United States , 551 U.S. 338 (2007)). The 20-year supervised- release term Jurgens received is below the statutory maxi- mum of life and thus below the term recommended by the Sentencing Commission. However, even in this situation, while the sentencing judge “need not discuss each section 3553(a) factor at sentencing and need not respоnd to every pithy argument that a defendant raises,” a defendant is enti- tled to a discussion of his “principal” arguments. United States v. Villegas-Miranda , 579 F.3d 798, 801 (7th Cir. 2009).

Prior to sentencing, Jurgens submitted a 21-page “com- mentary on sentencing factors.” This document contains ex- tensive discussion of factors favoring leniency in the term of imprisonment, culminating with a request for a custodial sentence of 60 months. The document contains a brief dis- cussion of supervised release, focused exclusively on his ob- jections to four terms of supervised release recommended in the presentence report. The document contains no recom- mendation as to—or even mention of—the length of the term of Jurgens’ supervised release. Jurgens’ objections in the ad- dendum to the presentence report likewise contain nary a mention of the length of supervised release. In his remarks at the sentencing hearing, Jurgens’ counsel spoke expansively on Jurgens’ history and need for sex-offender treatment, the irrationality of the guidelines imprisonment-range, and the lack of evidence of “hands-on sex offenses.” At the conclu- sion of his remarks, after asking for 60 months in custody, Jurgens’ counsel devoted a single sentence to the length of the term of supervised release: “We ask for a ten-year period of supervised release with appropriate conditions therein.”

In this context, we do not consider Jurgens’ request for a 10-year term to be one of his “principal” arguments, requir- ing discussion by the sentencing judge. Villegas-Miranda , 579 F.3d at 801. We find that the judge did not err in focusing her discussion on the topics focused upon by Jurgens’ counsel. Of course, a sentencing judge must always adequately ex- plain his or her choice as to the length of custody and super- vised release, consistent with the relevant § 3553(a) factors. See Farmer , 755 F.3d at 852. In this case, we find that was done, particularly given that the length of custody and su- pervised release were both significantly below the guide- lines range. Cf. Quinn , 698 F.3d at 652 (more onerous terms require greater justification, and “a term can become oner- ous because of its duration as well as its content”). The judge chose to discuss her reasons for imposing the sentence as a whole, and we find this to be a reasonable choice in this case. The judge discussed Jurgens’ troubled personal history and characteristics and аlso discussed her “concern” that, after he was caught but prior to incarceration, he continued to watch “simulated depictions” of child pornography. Moreo- ver, even if the judge erred by not adequately explaining her decision to follow the six-year custodial sentence (near the low end of the statutory range) with 20 years of supervised release (meaning Jurgens will complete his supervised re- lease when he is approximately 54 years old), we find this error to be harmless in this case. “[A] district court may find it proper to impose a longer term of supervised release to follow a relatively shorter term of imprisonment,” United States v. Albertson , 645 F.3d 191, 198 (3d Cir. 2011), and that is what the sentencing judge did in this case.

Jurgens also argues that the sentencing judge erred by failing to provide an adequate statement of reasons for each of the 19 standard and special conditions of supervised re- lease the judge imposed. We address those arguments below in conjunction with our discussion of the individual condi- tions.

B. Specific, Appropriately Tailored Conditions The third sentencing principle we address is that sentenc- ing judges should impose conditions of supervised release which are (a) appropriately tailored to the defendant’s of- fense, personal history and characteristics; (b) involve no greater deprivation of liberty than is reasonably necessary to achieve the goals of deterrence, protection of the public, and rehabilitation; and (c) sufficiently specific to place the de- fendant on notice of what is expected. See Adkins , 743 F.3d at 196 (discussing “the importance of notice and reasonably narrow tailoring,” in crafting conditions of supervised re- lease); Goodwin , 717 F.3d at 525 (“[E]ach special condition imposed must be tailored to Goodwin and his needs and in- volve no greater deprivation of liberty than is reasonably necessary to achieve the goals of deterrence, protection of the public, and rehabilitation.” (citation omitted)); United States v. Schave , 186 F.3d 839, 843 (7th Cir. 1999) (“A condi- tion of supervised release is unconstitutionally vague if it would not afford a person of reasonable intelligence with sufficient notice as to the conduct prohibited.”). This rule functions as a limit to a sentencing judge’s “wide discretion in determining conditions of supervised release.” Adkins , 743 F.3d at 193 (quotation omitted).

We have recognized “the difficulty of drafting special conditions.” Id . at 196. We have suggested that sentencing judges define the crucial terms in a condition in a way that “provides clear notice to [the defendant] (preferably through objective rather than subjective terms),” and/or “includes a mens rea requirement (such as intentional conduct).” Id . We have further suggested that the judge “[m]ake sure that each condition imposed is simply worded, bearing in mind that, with rare exceptions, neither the defendant nor the proba- tion officer is a lawyer and that when released from prison the defendant will not have a lawyer to consult.” Siegel , 753 F.3d at 717.

1. Standard Conditions As we have said, the fact that certain non-administrative conditions are labeled “standard” does not render them im- mune from the requirements that they be adequately sup- ported and not vague or overbroad. See Thompson , 777 F.3d at 376–78.

In Jurgens’ case, the sentencing judge imposed 13 stand- ard conditions without giving reasons. Jurgens challenges each standard condition as having been improperly imposed without notice and without findings, and further challenges most of them as being vague, overbroad, and/or an excessive deprivation of his liberties. Jurgens first contends that the standard conditions were omitted from the presentence re- port, which deprived him of notice and an opportunity to object. Jurgens’ presentence report referred to the “standard conditions of supervised release … found at U.S.S.G. § 5D1.3.” While it would be better practice for probation offic- ers to detail each condition being proposed, along with rea- sons why they would be applicable in a particular defend- ant’s case, we cannot say that Jurgens was deprived of notice that each of the standard conditions listed in U.S.S.G. § 5D1.3 would be considered by the sentencing judge.

Jurgens finds more solid ground for his contention that the judge imposed 13 standard conditions without making findings consistent with the § 3553(a) factors. With respect to the substantive standard conditions, Jurgens is correct that the sentencing judge imposed them without explanation as to why they were appropriate in Jurgens’ case and involved no greater deprivation of liberty than is reasonably neces- sary to achieve the permissible goals of supervised release. See Goodwin , 717 F.3d at 523–24. However, we nonetheless must look at the conditions to determine whether the failure to give reasons was harmless. See Siegel , 753 F.3d at 713. As we did in Thompson and Siegel , we highlight the ambiguities and/or overbreadth in many of the standard ‍‌‌‌​‌‌‌‌‌‌​‌​‌​‌‌‌​​​​​​‌‌‌‌‌‌‌‌‌‌‌​​‌‌​‌​​​‌‌​‌‍conditions, and suggest modifications for improving them.

The condition forbidding the defendant from “associ- at[ing] with any persons engaged in criminal activity” and “associat[ing] with any person convicted of a felony, unless granted permission to do so by the probation officer,” is “fa- tally vague” because it appears to impose strict liability and does not define “associate.” Thompson , 777 F.3d at 376–77. A suggested modification would be to forbid the defendant “to meet, communicate, or otherwise interact with a person whom he knows to be engaged, or planning to be engaged, in criminal activity.” Id . at 377.

The condition that the defendant “refrain from excessive use of alcohol,” is vague because “excessive use” is not de- fined. Id . at 376. A suggested definition for “excessive” alco- hol use for men is “binge drinking or heavy drinking,” with “heavy drinking” being defined as “consuming 15 drinks or more per week.” Siegel , 753 F.3d at 715 (quotation omitted). While the government points to no evidence contradicting Jurgens’ claim he was a teetotaler, the government nonethe- less contends the condition banning excessive alcohol use is appropriate because Jurgens is the child of alcoholics. The sentencing judge did not say this, and given the lack of any apparent connection between alcohol use and Jurgens’ of- fense, we think the imposition of this condition without find- ings was not harmless.

The condition that “the defendant shall support his or her dependents and meet other family responsibilities” is inappropriate in Jurgens’ case because he has no depend- ents, see Thompson , 777 F.3d at 376, and it is not apparent what “other family responsibilities” means, given that it ap- pears to mean something different than “support[ing]” Jurgens’ as-yet nonexistent dependents. To the extent the condition requires only financial support, as argued by the government, the condition should make that explicit and should include a limitation which takes into account the de- fendant’s ability to pay. Cf. Siegel , 753 F.3d at 714 (“Revoking a defendant’s supervised release and recommitting him to prison for mere inability to pay would constitute imprison- ment for debt.”).

The condition that “the defendant shall notify third par- ties of risks that may be occasioned by the defendant’s crim- inal record or personal history or characteristics” contains numerous ambiguities. “There is no indication of what is meant by ‘personal history’ and ‘characteristics’ or what ‘risks’ must be disclosed to which ‘third parties.’” Thompson , 777 F.3d at 379. Presumably, the meaning of these terms would change from defendant to defendant, which makes definitions particularly important with this condition.

The condition that the defendant is to notify his proba- tion officer of any “change in ... employment” fails to indi- cate “whether change in employment just means changing employers or also includes changing from one position to another for the same employer at the same workplace.” Id . Likewise, the condition requiring the defendant to work “regularly at a lawful occupation” fails to define “regularly.”

The condition prohibiting the defendant from “fre- quent[ing] places where controlled substances are illegally sold, used, distributed, or administered,” contains no “indi- cation of how many trips constitute ‘frequent[ing]’ such places.” Id . More importantly, the condition, read literally, improperly imposes strict liability because “there is no re- quirement that [the defendant] know or have reason to know or even just suspect that such activities are taking place.” Id . Likewise, the condition that “the defendant shall not leave the judicial district without … permission” would be improved by explicitly adding a scienter requirement, particularly in a case where it is foreseeable that a defendant will reside near the boundary of two judicial districts within the same state.

The condition that “the defendant shall answer truthfully all inquiries by the probation officer” “essentially asks for a waiver of the right not to be forced to incriminate oneself, because the condition would require the defendant to an- swer ‘yes’ if he were asked whether he had committed an- other crime and he had.” Id. at 379–80. In the context of pro- bation, the Supreme Court has held that a state probation requirement that the probationer “be truthful with the pro- bation officer ‘in all matters,’” was insufficient to require Mi- randa warnings because such a condition does not penalize the right to remain silent. Minnesota v. Murphy , 465 U.S. 420, 422, 434 (1984). The Court said that the “the State could not constitutionally carry out a threat to revoke probation for the legitimate exercise of the Fifth Amendment privilege,” but the “probation condition [at issue] proscribed only false statements; it said nothing about [the defendant’s] freedom to decline to answer particular questions and certainly con- tained no suggestion that his probation was conditional on his waiving his Fifth Amendment privilege with respect to further criminal prosecution.” Id . at 437, 438. We have inter- preted Murphy as drawing a line between “a merely plausi- ble fear that invoking one’s Fifth Amendment privilege will get one into trouble with the probation authorities,” and “the police tell[ing] the probationer that unless he talks his probation will be revoked.” United States v. Cranley , 350 F.3d 617, 622 (7th Cir. 2003). The former does not require Miranda warnings, while the latter does. Id . Because we are remand- ing for resentencing for other reasons, we decline to decide on which side of the Murphy line this condition falls. On re- mand, Jurgens may request that the standard condition that “the defendant shall answer truthfully all inquiries by the probation officer” should include language indicating that the condition does not prevent the defendant from invoking his Fifth Amendment privilege against self-incrimination. We do not, however, hold here that such language is re- quired.

Jurgens contends that his Fifth Amendment rights also are implicated by the separate standard condition requiring him to “notify the probation officer within seventy-two hours of being arrested or questioned by a law enforcement officer.” We do not see how the mere fact of an arrest or law enforcement contact is itself incriminating, and Jurgens points us to no authority so holding. And unlike the previ- ous condition, which required “all inquiries” to be answered, there is nothing in this condition which requires the defend- ant to answer any follow-up questions by the probation of- ficer which may tend to elicit incriminating answers. With respect to the lack of findings to support this condition, we think it is harmless in this instance. Clearly, this condition assists the probation officer in monitoring the defendant’s conduct and compliance with the other conditions of release, most notably, the mandatory condition that the defendant commit no other criminal offenses.

Jurgens challenges the standard condition that “the de- fendant shall permit a probation officer to visit him or her at any time at home or elsewhere and shall permit confiscation of any contraband observed in plain view of the probation officer” as infringing on his Fourth Amendment right to be free from warrantless nighttime searches. This condition is not as broad as the conditions we vacated in Farmer , 755 F.3d at 854–55, and Goodwin , 717 F.3d at 523, ^[6] and thus does not implicate the defendant’s Fourth Amendment rights to the same extent. However, the visitation standard condition is nonetheless broadly worded, and “would allow the proba- tion officer to ‘visit’ the defendant at 3:00 a.m. every morn- ing and look around for contraband, and also allow him to follow the defendant everywhere, looking for contraband.” Thompson , 777 F.3d at 380. The sentencing judge made no ef- fort to explain why this condition—especially in its current, broadly worded form—is connected to Jurgen’s offense, his- tory, and personal characteristics, or how it is reasonably necessary to furthering the deterrence, public protection, and rehabilitation goals referred to in 18 U.S.C. § 3583(d)(2). Given that Jurgens’ offense exclusively involved images on a computer—which presumably would not be left in plain view when Jurgens heard a knock on the door—and there is no indication Jurgens has ever possessed any other form of “contraband,” there is no readily apparent justification for this condition to be imposed upon Jurgens. Accordingly, we cannot find that the lack of explanation was harmless. See Thompson , 777 F.3d at 380 (“Regardless of any possible con- stitutional concern, [this condition is] too broad in the ab- sence of any effort by the district court to explain why [it is] needed.”); cf. Goodwin , 717 F.3d at 523 (“Although we stop short of stating that such [search] restrictions could never be appropriate in these circumstances, our skepticism leads us to conclude that the district court must provide some justifi- cation for these particular conditions.”).

Jurgens contends that the condition prohibiting him from entering “into any agreement to act as an informer or a spe- cial agent of a law enforcement agency without the permis- sion of the court” prevents him “from pursuing a key ave- nue for reducing his criminal exposure in the event he com- mits a new crime.” But this argument presumes the court unreasonably denies him permission, which seems to be an unlikely enough event that the imposition of this condition does not constitute an abuse of discretion, much less plain error. Moreover, the lack of findings to support this condi- tion is harmless because, although there are occasions “when the law enforcement benefits to the community justify per- mitting the offender to engage in this high-risk activity,” “[a]cting as a confidential informant is generally inconsistent with the rehabilitative and re-integrative goals of supervi- sion.” Admin. Office of the U.S. Courts, Guide to Judiciary Policy , Vol. 8, pt. E, § 460.60.20 (2011), available at https://wvn.fd.org//pdf/Part_E%20109.pdf.

We have focused upon Jurgens’ challenges to the stand- ard conditions imposed upon him because Jurgens challeng- es each of the standard conditions on appeal. The same 13 standard conditions imposed upon Jurgens were imposed upon Kappes and Crisp, with the exception that Crisp was prohibited from “any” use of alcohol instead of “excessive” use. The ban on “excessive” use of alcohol is the only stand- ard condition challenged on appeal by Kappes, and it must be vacated for the same reasons this condition was vacated as to Jurgens. Because we are ordering a resentencing for Kappes, our comments above regarding the other 12 stand- ard conditions should be considered by Kappes’ sentencing judge as well.

On appeal, Crisp challenges the standard conditions banning “any” use of alcohol and requiring him to “sup- port” his dependents and “meet other family responsibili- ties.” Unlike Jurgens and Kappes, there is evidence that Crisp consumed alcohol: he reported to the probation officer that he drank alcohol three to four times a week, but not to intoxication. The sentencing judge imposed the alcohol ban with no explanation for how it connected to Crisp’s offense or history. Perhaps a rationale could be offered adequate to support a total or—more likely—an “excessive” alcohol ban, but that rationale is not sufficiently apparent that we may declare harmless the failure to make any findings in support of the condition as written. See Baker , 755 F.3d at 524 (vacat- ing a complete ban on alcohol despite defendant’s statement that he consumed a six-pack of beer or more twice per week, because “there is no evidence that Baker’s alcohol use has contributed to his repeated criminal conduct or that Baker is dependent on alcohol”).

The failure to give reasons for imposing the condition re- quiring Crisp to “support” his dependents and “meet other family responsibilities” was harmless given the central role Crisp’s family played in the presentence repоrt and the comments made by the defense and the judge at sentencing. However, our other comments made above regarding this condition apply with equal force to Crisp. The meaning of the phrase, “other family responsibilities,” is not apparent, given that it appears to mean something different than “support[ing]” Crisp’s dependents. To the extent the condi- tion requires only financial support, the condition should make that explicit and should include a limitation which takes into account the defendant’s ability to pay. As with Kappes, because we are ordering a resentencing for Crisp, our comments above regarding the other 11 standard condi- tions which were not challenged by Crisp should be consid- ered by Crisp’s sentencing judge.

We are not the first court to be presented with at least some of these objections to the standard conditions. “A number of decisions in other circuits brush aside objections to the breadth and ambiguity of the many conditions of su- pervised release imposed by district judges.” Thompson , 777 F.3d at 380 (collecting cases). Other courts have interpreted an overbroad or ambiguous condition narrowly, for exam- ple, by reading a scienter requirement into a condition that is silent on the issue. See United States v. Phillips , 704 F.3d 754, 767–68 (9th Cir. 2012) (construing the standard condition prohibiting the defendant from “frequent[ing] places where controlled substances are illegally sold” as “prohibit[ing] Phillips from knowingly going to a specific place where drugs are illegally used or sold, but ... not prohibit[ing] him from ... going to a given neighborhood simply because a person is selling drugs somewhere within that neighborhood”); United States v. Green , 618 F.3d 120, 123 (2d Cir. 2010) (same, regard- ing a condition prohibiting association with street gangs). Likewise, we have imposed “an appropriate limiting con- struction” to a condition of supervised release prohibiting a defendant from “associat[ing] … with any member or organ- ization which espouses violence or the supremacy of the white race,” despite “the absence of an explicit scienter re- quirement in the restriction.” Schave , 186 F.3d at 843. Similar- ly, we have previously decided that the erroneous imposi- tion of two overbroad conditions does not amount to plain error requiring our intervention because “conditions of su- pervised release are readily modifiable at the defendant’s request.” United States v. Silvious , 512 F.3d 364, 371 (7th Cir. 2008); accord United States v. McKissic , 428 F.3d 719, 726 (7th Cir. 2005) (same, regarding the impositiоn of a condition without notice to the defendant).

However, as in Adkins , “this is not a case where we can tweak the relevant condition[s] easily.” 743 F.3d at 195 (quo- tation omitted).We have identified numerous conditions with troublesome provisions, and “we would need to define multiple key terms or provide multiple limiting construc- tions.” Id . at 196. “[B]ecause the district court will retain ju- risdiction over this case for many years, including the power to amend the conditions of supervised release at any time, it is in a superior position to write a new condition, if it so chooses.” Id . (citing 18 U.S.C. § 3583(e)(2)). As for declining to remand in favor of requiring the defendant to request modification at a later time, once a defendant is serving su- pervised release, he typically finds himself without the right to counsel and may lack the legal sophistication to recognize the potential infirmities in the conditions he has been or- dered to obey. Also, in an effort to avoid the ire of the proba- tion officer and judge who hold his liberty in their hands, the unrepresented defendant on supervised release may opt to forgo his right to request modification, and either attempt to abide by an overbroad condition or ignore the condition and hope it is not discovered. Accordingly, in this instance, we find “[i]t is preferable for the district court to specify limita- tions in a condition of supervised release in the condition itself” at the time of sentencing, rather than leaving it to ei- ther the appellate court to introduce limitations or the de- fendant on supervised release to make a motion for modifi- cation. Thompson , 777 F.3d at 380.

2. Special Conditions a. Bans on Mood-Altering Substances, Pornography, and Internet Both Kappes and Crisp are subject to special conditions banning the purchase, possession or use of any “mood alter- ing substance.” This phrase is not defined nor is its meaning self-evident. Siegel , 753 F.3d at 713 (“It could include coffee, cigarettes, sugar, and chocolate, among many others; yet these substances are not causal factors of recidivist behav- ior.”). A better definition for “mood altering substances,” although not the only one, would be “psychoactive sub- stances that impair physical or mental functioning, including street, synthetic, or designer drugs.” Id . (quotation marks omitted). We also have suggested simply prohibiting “ illegal mood-altering substances.” United States v. Cary , 775 F.3d 919, 924 (7th Cir. 2015). In Kappes’ case, the sеntencing judge offered no reasons for imposing the condition, and the rec- ord offers no indication Kappes has ever used psychoactive substances, so we cannot say that the lack of findings as to this condition was harmless. Therefore, Kappes’ special con- dition number one is vacated. The same condition also con- tains limitations on the use of alcohol (a total ban for Crisp and a ban on “excessive” use for Kappes), and our com- ments made above related to the standard condition limiting the use of alcohol apply with equal force to this duplicative special condition. The special condition also permits testing for use of alcohol, but to the extent the defendant is allowed to consume non-excessive amounts of alcohol, the sentenc- ing judge should indicate the purpose of this testing if this condition is reimposed in some form. See Baker , 755 F.3d at 525; Siegel , 753 F.3d at 716.

Kappes is subject to special condition numbers four and seven, banning him from receiving or viewing “any materi- al, legal or illegal, that contains pornography,” and forbid- ding him from “us[ing] the Internet … for the purpose of sexual arousal.” “Adult pornography, unlike child pornog- raphy, enjoys First Amendment protection, and so we must be especially cautious when considering a ban on possessing adult pornography.” Shannon , 743 F.3d at 500. We have found that special conditions such as Kappes’ special condi- tion numbers four and seven do not survive a vagueness or overbreadth challenge, irrespective of whether plain-error review or abuse-of-discretion review applied. See id. ; Adkins , 743 F.3d at 194; Goodwin , 717 F.3d at 525. We again so find here.

In Jurgens’ case, the presentence report recommended the identical pornography and Internet-usage conditions imposed upon Kappes, but the sentencing judge declined to impose the Internet-usage condition and modified the por- nography condition to prohibit Jurgens from receiving or viewing “any material, legal or illegal, that contains illegal pornography as that is defined in the U.S. Code.” Despite the sentencing judge’s modifications, Jurgens complains that the reference to “legal” material is “plainly a scrivener’s er- ror,” and the condition is “redundant given that the manda- tory condition banning the commission of federal or state 41 оffenses prohibits the [same] conduct.” Jurgens is correct, but any error is harmless. Moreover, given Jurgens’ offense, the sentencing judge may have wished to emphasize that Jurgens is prohibited from possessing illegal pornography. If so, the sentencing judge may make that clear on remand.

b. Treatment Programs and Computer Monitoring

Jurgens is required by special condition numbers one, two, and five to participate in “psychiatric services and/or a program of mental health counseling and treatment,” “sex offender treatment,” and probation’s “Computer and Inter- net Monitoring Program.” Jurgens contends on appeal that these special conditions are greater than necessary depriva- tions of his liberty and were not supported by adequate find- ings.

With respect to the conditions requiring mental-health counseling and treatment and sex-offender treatment, Jurgens did not object to these special conditions despite their appearance in the presentence report. Jurgens himself told the sentencing judge: “I want to use this as an oppor- tunity to turn my life around by making use of any and all education, counseling and guidance that is made available to me.” ^[7] Prior to sentencing, the judge ordered a psychosexual evaluation of Jurgens. Jurgens was diagnosed with an anxie- ty disorder and a pedophilic disorder. Jurgens’ attorney em- phasized Jurgens’ “abusive childhood situation,” requested a “ten-year period of supervised release with appropriate conditions,” and asked for Jurgens to be housed in a prison where “he gets the benefit of sex offender … treatment.” The sentencing judge then commented upon Jurgens’ wretched childhood wherein Jurgens “never learned to value [him]self” and attributed Jurgens’ anxiety disorder to his childhood. The judge commented on her concern that, after being caught with child pornography but prior to his arrest and incarceration, Jurgens collected anime, which is “just animated, simulated depictions of the same kinds of things that … you understood you could no longer look at.” The judge found that the length of time Jurgens viewed the vide- os depicting child pornography and the nature of the images were aggravating factors. The judge ordered the mental- health treatment and sex-offender treatment conditions “be- cause of the information containеd about your mental health in the [presentence report] and also in the psychosexual evaluation regarding concerns about pedophilia, [and] also concerns about your high level of social anxiety and avoid- ance issues.” We find that these findings are sufficient pur- suant to § 3583(d) to survive plain-error or abuse-of- discretion review of both conditions. ^[8] See Evans , 727 F.3d at 733–35; Ross , 475 F.3d at 875.

43 On appeal, Jurgens takes particular exception to the con- dition that he “will submit to physiological testing, includ- ing polygraph testing, which may be part of a sex offender treatment program as directed by the U.S. Probation Of- fice.” ^[9] Jurgens contends that physiological testing includes plethysmograph testing, ^[10] which he contends is a greater than necessary deprivation of his liberty interests. Plethys- mograph testing is physically intrusive and controversial, but it “has been recognized by some psychologists and re- searchers as a useful technique in the treatment of sexual of- fenders,” United States v. Weber , 451 F.3d 552, 565 (9th Cir. 2006), and “courts have upheld conditions requiring offend- ers to undergo [plethysmograph] testing under various legal challenges.” United States v. Rhodes , 552 F.3d 624, 626 (7th Cir. 2009). To the extent this condition might require Jurgens to submit to plethysmograph testing—which is not men- tioned in the condition—it involves too many contingencies to make the issue ripe for review at this time. See id. at 628– 29 (holding that the defendant’s challenge to a similar condi- tion was not ripe for review because it is “based on a num- ber of contingencies,” including that the treatment program may only require “polygragh testing alone, which is not un- usual,” and/or “the development of science or the law may render the [plethysmograph] testing irrelevant or even ille- gal, or maybe the movement will be in a different direction altogether”). If Jurgens ultimately is ordered to undergo ple- thysmograph testing as part of a sex offender treatment pro- gram on supervised release, he may petition the district court to modify the condition if he then objects to it. See id . at 629.

As for polygraph testing, which is mentioned in the con- dition (although as a contingency), Jurgens contends this possibility infringes on his Fifth Amendment right to be free from self-incrimination. Our earlier discussion related to Jurgens’ prior Fifth Amendment challenge applies with equal force here. A defendant on supervised release retains the privilege to invoke his Fifth Amendment rights. On re- mand, Jurgens may request that the sentencing judge in- clude language indicаting that this condition does not pre- vent him from invoking the privilege against self- incrimination, although we do not hold that such language is required. Jurgens also contends that the condition gives “the probation office 20 years of unlimited ability to test” Jurgens with a polygraph. However, we read this condition as delegating to probation the selection of the treatment pro- vider; only the treatment provider is authorized to select the type(s) and amount of testing. We encourage the sentencing judge on remand to consider rewording the condition to make this point clear. Cf. Siegel , 753 F.3d at 713 (addressing issues with, and ambiguities in, ‍‌‌‌​‌‌‌‌‌‌​‌​‌​‌‌‌​​​​​​‌‌‌‌‌‌‌‌‌‌‌​​‌‌​‌​​​‌‌​‌‍ a similarly worded condi- tion). 45

Jurgens also challenges the condition requiring him to participate in probation’s “Computer and Internet Monitor- ing Program.” A similar condition was proposed in the presentence report. See U.S.S.G. § 5D1.3(d)(7). The proposed condition required Jurgens to install, “on any computer” he used, filtering software that would “monitor/block access to sexually oriented websites.” Jurgens objected because he planned to use computers on his job and the term “sexually oriented” was vague and overbroad. The sentencing judge accommodated Jurgens’ objections by replacing the term “sexually oriented websites” with “websites that contain il- legal child, or illegal pornography,” and adding a clarifica- tion that the condition applies only to “personal computers” and not to any computer Jurgens needs to access through his employment. ^[11] The judge explained at sentencing that the condition was necessary to help ensure compliance with the other conditions of supervised release.

Jurgens contends that the judge’s findings were inade- quate to support this condition. We disagree. Jurgens’ use of a computer facilitated his offense, and the sentencing judge reasonably found that the monitoring program will “ensure compliance” with the other conditions, most notably the condition prohibiting Jurgens from receiving, transmitting, or viewing illegal pornography. The deterrent effect of filter- ing software—and unannounced checks to determine the software remains functional—is apparent. “[W]e try to take careful note of context and the practical realities of a sentenc- ing hearing. District judges need not bеlabor the obvious. The judge need not be explicit where ‘anyone acquainted with the facts would have known without being told why the judge had not accepted the argument’ ….” United States v. Gary , 613 F.3d 706, 709 (7th Cir. 2010) (quoting United States v. Cunningham , 429 F.3d 673, 679 (7th Cir. 2005)). Moreover, we endorse the sentencing judge’s efforts to re- spond to the objections Jurgens made at sentencing. We find that the modified condition was adequately supported by the sentencing judge.

Jurgens also argues that this condition violates his Fourth Amendment rights because it permits the probation officer unlimited, unannounced access to Jurgens’ personal com- puter(s) “to verify that the [child pornography] filtering software is functional.” Jurgens characterizes this condition tional. You shall pay of [sic] the cost of this software, if financially able. 47

as allowing “warrantless, suspicionless, nighttime searches of Mr. Jurgens’ home to occur for the next 20 years.” While the possibility that a probation officer may knock on Jurgens’ door at 3:00 a.m. seeking to verify that the filtering software is functional is troubling, cf . Thompson , 777 F.3d at 380, this condition is narrower than the home-visit condition discussed earlier. ^[12] Indeed, if Jurgens’ personal computer is a laptop computer, presumably he may comply with this condition by bringing the computer to the probation officer at Jurgens’ door or elsewhere, and the officer would not need to enter Jurgens’ residence. We find that this condition does not violate Jurgens’ Fourth Amendment rights.

This issue highlights the dissonance between defense counsel’s and government counsel’s respective views of probation officers. Defense counsel appears to view the typi- cal probation officer as Inspector Javert, ^[13] obsessively en- gaged in a misguided and destructive pursuit of defendants. Government counsel appears to view the typical probation officer as Mr. Chips, ^[14] a kindly educator (or rehabilitator) who disciplines only when absolutely necessary. This disso- nance finds its root in a probation officer’s dual function: “to guide the [defendant] into constructive development” and to prevent “behavior that is deemed dangerous to the restora- tion of the individual into normal society.” Morrissey v. Brewer , 408 U.S. 471, 478 (1972). While the balance a particu- lar probation officer strikes between supervision and en- forcement may vary, we think it remains true that the ongo- ing supervisory relationship of а probation officer to a de- fendant “is not, or at least not entirely, adversarial.” Griffin v. Wisconsin , 483 U.S. 868, 879 (1987). It is inherent in this sys- tem that conditions allow probation officers a degree of dis- cretion in performing their difficult job. Of course, we cannot allow conditions to be worded in such a way as to endow probation officers with “essentially unlimited discretion.” Thompson , 777 F.3d at 382. But at some point, we must “fairly presume [the defendant]’s probation officer will apply the conditions in a reasonable manner.” United States v. Smith , 606 F.3d 1270, 1283 (10th Cir. 2010). And if a particular pro- bation officer exercises his or her discretion in an unreason- able manner, this exercise will be subject to review by the district court.

Finally, Jurgens argues that the provision in each treat- ment/monitoring condition requiring him to pay “if finan- cially able” should “have stated that Mr. Jurgens’ inability to 49 pay could not be a basis for revocation.” We think it is ap- parent from each condition that Jurgens’ supervised release may not be revoked for not paying the costs of treatment or monitoring if he is not financially able to pay. Cf. Baker , 755 F.3d at 529 (“A defendant may not be recommitted to prison ‘for mere inability to pay’….” (quoting Siegel , 753 F.3d at 714)). Indeed, we recently referred to the use of the phrase, “if financially able,” as a “best practice for district courts to follow” in crafting conditions of supervised release. Cary , 775 F.3d at 928–29.

At Kappes’ sentencing, the judge imposed special condi- tions requiring Kappes to participate in sex-offender treat- ment and probation’s Computer and Internet Monitoring Program, and requiring him to pay for the treatment and fil- tering software “if financially able.” Kappes challenges the pay-if-able language in the treatment condition, contending that there is no statutory authority for a court to require a defendant to pay for treatment programs. ^[15] Kappes over- looks 18 U.S.C. § 3672, which authorizes a court to order re- payment by the recipient of treatment “services, training, or guidance,” and 18 U.S.C. § 3583(d), which authorizes a court to impose “any other condition it considers appropriate.” See Cary , 775 F.3d at 928 (holding that a district court is empow- ered to impose payment conditions pursuant to § 3672 and § 3585(d)). To the extent the sentencing judge failed to make adequate findings to support the payment portion of the challenged condition, we find this error to bе harmless. It is self-evident that the pay-if-able language will incentivize de- fendants to succeed with their rehabilitative efforts, see Unit- ed States v. Williams , 739 F.3d 1064, 1066–67 (7th Cir. 2014), and “reimburse [the Administrative Office of the U.S. Courts for] the appropriations obligated and disbursed in payment for such services, training, or guidance.” 18 U.S.C. § 3672. Finally, although not challenged by Kappes, we encourage Kappes’ sentencing judge on remand to consider modifying the language of the computer-monitoring condition in the same manner as was done by the sentencing judge in Jurgens’ case—i.e., in the absence of additional findings on remand, the filtering software should only block websites containing illegal pornography (e.g., child pornography), rather than all “sexually oriented websites.” Cf. Cary , 775 F.3d at 926–27 (indicating that any internet ban “must be de- fined to some degree of precision”).

c. No-Contact Condition Both Kappes and Jurgens challenge a special condition prohibiting contact with minors. In Quinn , we singled out a term of supervised release prohibiting unapproved contact with minors—including the defendant’s minor child, whom defendant had never been accused of abusing—and stated that “[p]utting the parent-child relationship under govern- mental supervision for long periods … requires strong justi- fication.” 698 F.3d at 652. After Quinn , we have vacated simi- lar no-contact conditions due to a lack of adequate findings. See Baker , 755 F.3d at 526–27; United States v. Poulin , 745 F.3d 796, 802 (7th Cir. 2014); Goodwin , 717 F.3d at 524.

In Kappes’ case, the judge adopted in toto the condition recommended in the presentence report banning Kappes from contact with all minors except in the presence of an adult approved by probation, in the course of normal com- mercial business, or other cases of unintentional and inci- dental contact. During the sentencing hearing, the judge re- cited this condition without discussion. Were we to view this portion of the transcript in isolation, the judge’s findings would be inadequate to sustain such a condition, despite the fact that—unlike the defendant in Quinn —Kappes has no children and has not identified any extended family member with minor children. However, we review the judge’s com- ments at the entire sentencing hearing. Prior to listing the conditions, the judge discussed the “much more disturbing information here than just a desire to see young children have sex with adults.” The judge said that “a lengthy period of supervised release” is necessary because Kappes, while working as a furniture deliveryman, stole “over 30 female panties, many оf which apparently belonged to children,” and kept the collection for 20 years. The judge told Kappes that the length of time he kept the collection was “concern- ing,” and “[m]ore disturbing” was Kappes’ surreptitious photographing of children playing in a neighboring outdoor pool for approximately ten years. The judge concluded that the conditions of supervised release were necessary because of “worry about any future crimes or possible acting out, stealing panties, pictures of young girls next door.” We think the sentencing judge’s explanation is sufficient to justify im- posing upon Kappes an appropriately tailored no-contact con- dition.

However, the no-contact condition actually imposed up- on Kappes is somewhat overbroad. The condition prohibits non-incidental “contact” with males as well as females un- der 18, despite the fact that we are not aware of any evidence that Kappes is bisexual. See Thompson , 777 F.3d at 376 (“A[n] … error was a condition of supervised release that Thomp- son not have ‘any contact with persons under the age of 18….’ This can’t have been meant literally, since understood literally it would include males under 18 as well as females, though there is no suggestion that Thompson is bisexual.”). Kappes contends that, “[a]lthough he has no children, if he did (or if an extended family member does), his fundamental right to familial association would be violated by a limitation on contact with minors.” Given that Kappes was sentenced to a 20-year term of imprisonment at the age of 47, we think that any violation of his rights by this condition is too con- tingent to be ripe for review at this time. See Rhodes , 552 F.3d at 628–29. After Kappes is released from custody, if he or a family member has minor children, he may petition the dis- trict court to modify this condition. See id . at 629; see also 18 U.S.C. § 3583(e)(2).

In Jurgens’ case, the presentence report recommended a special condition identical to the one imposed in Kappes’ case. Prior to sentencing, the judge ordered a psychosexual evaluation, and the evaluator diagnosed Jurgens with pedo- philia and recommended imposition of the same no-contact provision. Jurgens objected that this proposed condition in- fringed on his constitutional right to familial association be- cause Jurgens has a nephew who is a minor. At sentencing, the judgе accommodated this objection by revising the rec- ommended condition to prohibit contact with “non-related” minors except in the presence of an adult approved by pro- bation, in the course of normal commercial business, or other cases of unintentional and incidental contact. The judge said that the no-contact condition was “especially necessary in [Jurgens’] case because the target age of most of your child pornography was … seven- to eight-year-olds and, further … [Jurgens] made a statement that he ‘can’t do anything [to minors] when they are not here.’” The judge said that Jurgens’ statement was “troublesome enough, given the na- ture of this offense, that I think it’s an appropriate condition to impose in this case.” Although this is perhaps the mini- mum of what might be sufficient to justify a no-contact pro- vision in a possession-only child-pornography case, we think the judge’s explanation is sufficient.

Despite the judge’s modification of the condition in re- sponse to Jurgens’ objection, the no-contact provision actual- ly imposed in Jurgens’ case is overbroad. The condition pro- hibits non-incidental “contact” with males as well as females under 18, despite the lack of evidence that Jurgens is bisexu- al. See Thompson , 777 F.3d at 376. Likewise, the judge’s statements at sentencing suggest that Jurgens is attracted to seven- and eight-year-olds, making a restriction on contact with 17-year-olds seem unsupported by the judge’s findings. Because this case must be remanded for other reasons, the sentencing judge should address the overbreadth of this condition on remand.

d. Search Condition The final special condition imposed upon Jurgens re- quires him to “submit to the search of [his] person, automo- bile, and property under [his] control” when “there is rea- sonable suspicion to believe that [he is] in violation of a con- dition of supervised release,” subjects his computers and re- lated devices to “periodic unannounced examinations,” and allows “retrieval and copying of all data ... to ensure compli- ance with this condition, and/or removal of such equipment for the purpose of conducting a more thorough examina- tion.” ^[16] Jurgens concedes that because he failed to object to this condition—which was proposed in the presentence re- port—it now is subject to plain error review. Jurgens none- theless contends that the condition must be vacated because the sentencing judge failed to support it with adequate find- ings, the condition infringes on his Fourth Amendment right to keep his property free from unreasonable searches and seizures, and the condition is an excessive deprivation of his Fifth Amendment right to property.

The sentencing judge stated that this condition was being imposed “to ensure compliance with these conditions.” Combined with the judge’s other comments at sentencing which we have summarized above, we think this is sufficient to support this condition. And even if the judge did not say enough, this would not be the type of error which affects Jurgens’ substantial rights, see Olano , 507 U.S. at 735, because the consistency of this condition with the sentencing factors and the other conditions “is plain, given the nature of [the defendant’s] crime,” see Siegel , 753 F.3d at 713. This condition clearly relates to the goals of rehabilitation, deterrence and protection of the public, and is reasonably related to the na- ture and circumstances of Jurgens’ computer-facilitated of- fense. Compare Goodwin , 717 F.3d at 523 (vacating a similar condition because there was no “indication in the record that Goodwin has ever used a computer to commit any crime”).

We next turn to Jurgens’ challenge to the merits of the condition, which authorizes searches when “there is reason- able suspicion to believe that [Jurgens is] in violation of a condition of supervised release.” Jurgens highlights the standard condition requiring him to follow his probation of- ficer’s instructions, and says when that standard condition is combined with the search condition, “the mind runneth over when imagining how many ways an unheeded instruction provides a springboard for searching Mr. Jurgens’s person, automobile and property.” Jurgens posits that, “[i]f he com- mits a traffic infraction,” a Javert-like probation officer may use the infraction to confiscate Jurgens’ computer pursuant to this condition, and “[m]aybe the deprivation is just for a day, but maybe that was the day that Mr. Jurgens was sup- posed to make a presentation for work and cannot do so be- cause materials for the presentation are on the computer the government took.” Jurgens points to no case in which any- thing remotely similar has happened to a defendant on su- pervised release, despite the fact that this search condition is common. We do not find that Jurgens’ hypothetical conjec- ture is sufficient to establish plain error. Cf . United States v. Westerfield , 714 F.3d 480, 489 (7th Cir. 2013) (“This hypothet- ical conjecture is baseless, and certainly does not establish plain error.”).

In the context of probation, the Supreme Court has held that the Fourth Amendment balance of “the degree to which [a search of a probationer’s residence] intrudes upon an in- dividual’s privacy and, … the degree to which it is needed for the promotion of legitimate governmental interests,” re- quires “no more than reasonable suspicion to conduct a search of th[e] probationer’s house.” United States v. Knights , 534 U.S. 112, 119, 121 (2001) (quotation omitted); cf . United States v. Montiero , 270 F.3d 465, 469, 473 (7th Cir. 2001) (up- holding, pre- Knights , a suspicionless-search supervised- release condition because the condition was necessary to “curb the sort of criminal activity in which a defendant had a history of engaging,” but vacating the condition’s suspicion- less seizure authorization as vague and overbroad, and re- manding to the district court “to craft more precisely the sei- zure authority of the special condition”). Post- Knights , the First Circuit has upheld a supervised-release condition ma- terially the same as the computer-search-and-removal condi- tion challenged by Jurgens. See United States v. Stergios , 659 F.3d 127, 131 n.6, 134 (1st Cir. 2011). The court noted that, “if the district court could not mandate compliance with the rules of the treatment program, the required participation would be ineffectual.” Id . at 134 (quotation and alteration omitted); but see United States v. Lifshitz , 369 F.3d 173, 193 (2d Cir. 2004) (vacating, under de novo review, a similar condi- tion on the basis that “[t]he scope of the computer monitor- ing condition as it stands may … be overbroad,” and order- ing “the district court to evaluate the privacy implications of the proposed computer monitoring techniques as well as their efficacy as compared with computer filtering”).

Given the legal authority cited above, we cannot find that the district court plainly erred in imposing the search condi- tion upon Jurgens. See Olano , 507 U.S. at 734 (“At a mini- mum, court of appeals cannot correct [a plain] error … un- less the error is clear under current law.”). We do note that both the defense and the government assume that, as stated in the government’s brief, “[t]he removal provision requires Mr. Jurgens to release his computer for more thorough in- spection by his probation offiсer only if there is reasonable suspicion that Mr. Jurgens has violated the terms of his re- lease.” However, the language of the condition is not as clear as it could be on this point. On remand, the sentencing judge should consider rewording the condition to clarify that the “periodic unannounced examinations of [Jurgens’] computer equipment … which may include … removal of such equipment for the purpose of conducting a more thorough inspection” may only be done if the probation officer has reasonable suspicion to believe that Jurgens is in violation of a condition of supervised release. See 18 U.S.C. § 3583(d) (au- thorizing a supervised-release condition requiring a sex of- fender to submit to search “by any law enforcement or pro- bation officer with reasonable suspicion concerning a violation of a condition of supervised release or unlawful conduct by the person” (emphasis added)); U.S.S.G. § 5D1.3(d)(7)(C) (recommending the same special condition for sex offend- ers); cf. Farmer , 755 F.3d at 854 (vacating a search condition that required “no suspicion, reasonable or otherwise, to trig- ger a search”). The identical condition was imposed upon Kappes, and we similarly encourage Kappes’ sentencing judge to consider rewording the condition.

V. Pronounce All Conditions The fourth sentencing principle that we address in the context of imposing conditions of supervised release is the need to orally pronounce all conditions from the bench. “[W]hen there is a conflict between an oral and later written sentence, the oral judgment pronounced from the bench con- trols.” United States v. Johnson , 765 F.3d 702, 710–11 (7th Cir. 2014). However, if “[t]he specifications in the written judg- ment clarify the oral pronouncement” and the written provi- sions “are not inconsistent with an unambiguous [oral] pro- vision,” then the differing written provisions will not be va- cated. Baker , 755 F.3d at 529 n.2. The parameters of this rule can be seen by comparing examples of how we have applied it. Compare Johnson , 765 F.3d at 711 (“[T]he district court un- ambiguously announced several specific conditions of su- pervised release at Johnson’s sentencing hearing and did not include any statement as to whether other standard condi- tions would apply…. [A]ny new conditions imposed in the later written judgment are inconsistent with the court’s oral order and must be vacated.”), and United States v. Alburay , 415 F.3d 782, 788 (7th Cir. 2005) (“The written version con- tradicts the oral vеrsion in that the oral version does not or- der ‘immediate deportation’ in any shape or form.”), with Baker , 755 F.3d at 529 n.2 (“Any argument that the payment conditions should be vacated because the written judgment, explicitly stating the entity or official who can direct Baker to pay, is inconsistent with the oral pronouncement, which on- ly says ‘as directed’ without specifying by whom, is unavail- ing.”), and United States v. Bonanno , 146 F.3d 502, 511–12 (7th Cir. 1998) (holding that when the district court orally im- posed “all the standard conditions of supervised release adopted by this Court” but did not enumerate those condi- tions until the written order, the written order was merely a clarification of the vague oral pronouncement and the enu- merated standard conditions would not be vacated). “We review a claim of an inconsistency between the oral and written judgments de novo , comparing the sentencing tran- script with the written judgment to determine whether an error occurred as a matter of law.” Johnson , 765 F.3d at 710.

Kappes contends that the sentencing judge violated this rule three times, and requests that the allegedly inconsistent provisions in ‍‌‌‌​‌‌‌‌‌‌​‌​‌​‌‌‌​​​​​​‌‌‌‌‌‌‌‌‌‌‌​​‌‌​‌​​​‌‌​‌‍the written judgment be vacated. First, during the sentencing hearing, the judge orally stated that Kappes will have to submit to “ psychological testing, including poly- graph testing, which may be part of a sex offender treatment program.” The written judgment states that Kappes will have to submit to “ physiological testing, including polygraph testing, which may be part of a sex offender treatment pro- gram.” Given that, strictly speaking, polygraph testing is a physiological, rather than psychological, test, there was an ambiguity in the judge’s oral sentence. Accordingly, we may look to the written judgment to help determine the intended sentence. See Bonanno , 146 F.3d at 511. After looking to the written judgment, it is clear that the sentencing judge simply misspoke when he said “psychological testing,” and intend- ed the condition to impose “physiological testing,” as stated in the judgment (as well as in the unobjected-to presentence report). Accordingly, this provision is not vacated for violat- ing the rule that conditions must be orally pronounced.

Next, the sentencing judge orally required Kappes to “al- low Probation to conduct periodic, unannounced examina- tion of your computer, Internet capable devices, electronic devices, or related computer peripherals; and they may re- trieve or copy all data from your devices to ensure compli- ance.” The written judgment adds the requirement that Kappes allow the “removal of such equipment for the pur- pose of conducting a more thorough inspection.” Here, the oral pronouncement was unambiguous. If “the oral version is unambiguous, there is no need to look beyond the oral version for any clarification from the written version. The written version is thus a nullity, not requiring further dis- cussion.” Alburay , 415 F.3d at 788 (citation omitted). There- fore, the inconsistent provision in the written judgment, al- lowing the removal of Kappes’ computer equipment, is va- cated. However, this may be a hollow victory for Kappes since we are remanding for resentencing on other grounds. If, after hearing from the parties and otherwise complying with the appropriate sentencing procedures, the judge wish- es to include the computer-removal provision in special condition number six, he may do so during resentencing.

Kappes’ third challenge involves the oral omission of the written judgment’s ban on “paraphernalia related to any controlled substance or mood altering substance,” which appears in special condition number one. As we have al- ready vacated this special condition for other reasons (due to its ban on “excessive” use of alcohol and possession and use of any “mood altering substance”), we decline to consider this additional challenge to the condition.

VI. Mitigation Argument

Apart from his challenges to the conditions of supervised release, Crisp contends that the sentencing judge erred by failing to consider or comment upon one of his principal ar- guments in mitigation, namely, that he cooperated with law enforcement despite the lack of a government motion for a reduced sentence. See United States v. Leiskunas , 656 F.3d 732, 737 (7th Cir. 2011) (“A district court may consider a defend- ant’s cooperation with the government as a basis for a re- 61 duced sentence, even if the government has not made a [U.S.S.G.] § 5K1.1 or [Federal] Rule [of Criminal Procedure] 35 motion.”).

We review de novo whether a judge followed proper pro- cedures in sentencing, including whether the judge ade- quately explained his or her chosen sentence. United States v. Davis , 764 F.3d 690, 694 (7th Cir. 2014). “A sentencing judge must address a defendant’s principal arguments in mitiga- tion when those arguments have rеcognized legal merit.” Id .; see Cunningham , 429 F.3d at 679. ^[17] The judge, however, “need not address arguments that have no apparent merit, and need not spend time addressing an argument if ‘anyone ac- quainted with the facts would have known without being told why the judge had not accepted the argument.’” United States v. Castaldi , 743 F.3d 589, 595 (7th Cir. 2014) (quoting Cunningham , 429 F.3d at 679). “The explanation need not be exhaustive, but it must be sufficient to satisfy this court that the sentencing judge has given meaningful consideration to the section 3553(a) factors and the parties’ arguments in de- termining how long the defendant’s sentence should be. This will entail some discussion of any significant argument the defendant has made with respect to his characteristics that might bear on the length of the sentence.” United States v. Schmitz , 717 F.3d 536, 541 (7th Cir. 2013) (citations omitted). “The amount of explanation needed in any particular case depends on the circumstances, and less explanation is typi- cally needed when a district court sentences within an advi- sory guidelines range.” United States v. Curby , 595 F.3d 794, 797 (7th Cir. 2010) (quotation and citations omitted).

At sentencing, defense counsel said there was no motion to deviate from career offender status because “there was a cooperation agreement that was signed,” and “a proffer was conducted,” and “there may have been a 5K1.1 motion if Mr. Crisp had entered into a cooperation plea agreement, which he elected not to do, to preserve his rights to appeal and the other things that would have been waived under the coop- eration plea agreement.” The judge responded: “So what you’re saying to me is: There may have been an attempt at Id . at 569 (quotation and citation omitted).

cooperation, or he may actually have taken the first step to- wards it. But, in the end, no cooperation agreement was signed and incorporated into a plea agreement [and] we ended up with an open plea?” Defense counsel said the judge was “correct” and explained, “I would say that we went all the way through the entire procedure up to the point where he would have entered into a cooperation plea agreement, a written agreement, which was not actually per- formed.” The judge then outlined the facts of the case and commented: “So while there isn’t a cooperation agreement here, there certainly is an exceptional early acceptance of re- sponsibility by his being Mirandized , waiving his constitu- tional rights, telling [agents], ‘Yes, you got me, and this is what I’ve been doing.’ So no obstruction of justice, resisting arrest, a cooperation in the execution of the search warrant, and admissions took place immediately.”

Later in the hearing, defense counsel made several miti- gating arguments, including Crisp’s family history, his drug addiction, his status as a “a neighborhood level dealer” ra- ther than a “drug kingpin,” the lack of weapons in his crimi- nal history, his effort to support his daughter, his conduct compared to that of most career offenders, and his sentenc- ing range had he not been a career offender. Defense counsel then argued: “[H]e cooperated right away. The second he was arrested he said, ‘You got me. I admit it. I waive my Mi- randa . I confess.’ He was pled out within three months after the indictment came down. And … between the indictment and the actual change of plea, he did cooperate. I sat in the Ford County Jail basement for three and a half hours with agents while he regaled them with all the information he could possibly give them.” Defense counsel said that, alt- hough the Government did not make a substantial assistance motion pursuant to U.S.S.G. § 5K1.1, “the Court can still consider the timeliness of the cooperation, the fact that he did render a proffer that was lengthy, that even though the government doesn’t have to mention it because he didn’t comply with the rest of that cooperation agreement by enter- ing into that binding plea, he still tried his best; and he did accept responsibility in a very, very quick manner.”

The judge then discussed Crisp’s lengthy criminal history (35 arrests and 23 convictions, including four drug felonies), and said that a sentence of the mandatory minimum of 10 years (as suggested by defense counsel) “would depreciate the seriousness of his history of crime.” The judge said that he would sentence Crisp below the guidelines imprisonment range (262 to 327 months), because the judge would “take into consideration the fact that maybe he has rehabilitative potential by his allocution today; and by the time he was ar- rested, he gave it up quickly. He admitted it. So I think the exceptional acceptance of responsibility here immediately shows that there is an opportunity of hope for rehabilita- tion…. So how far do I depart from the career offender guidelines? I will depart 22 months to 240 months.”

Given the judge’s below-guidelines sentence, and “[p]aying close attention to the context and practical reali- ties,” Castaldi , 743 F.3d at 595–96, we find that the judge did not err by failing to mention Crisp’s proffer to law enforce- ment agents when the judge was discussing the § 3553(a) factors. During sentencing, each time defense counsel raised the subject of cooperation, counsel mentioned it in conjunc- tion with Crisp’s quick acceptance of responsibility. The dis- trict court explicitly considered and credited Crisp’s “excep- tional acceptance of responsibility.” Although the judge did not go on to discuss Crisp’s proffer specifically, the judge considered the mitigation argument in the same context as it was argued by counsel—acceptance of responsibility. And the judge’s earlier discussion with counsel shows that the judge recognized the proffer and understood it to be “the first step” toward a cooperation plea agreement. In this cir- cumstance, we are satisfied that the judge, “even if implicitly and imprecisely,” considered Crisp’s principal arguments in mitigation. United States v. Spiller , 732 F.3d 767, 769 (7th Cir. 2013) (“[A]s long as the sentencing court considers the ar- guments made in mitigation, even if implicitly and impre- cisely, the sentence imposed will be found reasonable.” (quotation omitted)); see also United States v. Poetz , 582 F.3d 835, 839 (7th Cir. 2009) (“[I]t is apparent from this record that the judge fully understood [the defendant’s] argument on this point and implicitly considered ... it in imposing a leni- ent, below-guidelines term of imprisonment.”).

Moreover, defense counsel did not give the judge any meaningful specifics about Crisp’s proffer—such as whether Crisp identified suppliers, customers, the location of contra- band, or any other specifics about his drug deals. Even de- fense counsel refrained from describing the single session with law enforcement agents as “substantial assistance,” and she never indicated that Crisp’s “regaling” the agents with information prompted, advanced, or assisted any investiga- tion or prosecution. Given our conclusion that the judge ad- equately considered Crisp’s arguments, we need not deter- mine whether this argument was “so weak as not to merit discussion.” Cunningham , 429 F.3d at 679. It is enough to say that a weaker argument, lacking specific factual support, does not merit as much discussion as a stronger one. See Da- vis , 764 F.3d at 694 (“[T]he amount of explanation required from the district court varies with the circumstances. A brief explanation can certainly suffice.” (quotation and citation omitted)).

VII. Relief

Our final order of business is deciding upon the relief to issue in each case. In prior cases in which we found error in the supervised release portion of the sentence, but no error in the custodial portion, we have sometimes remanded for resentencing of the supervised release issue only, and some- times simply remanded “for resentencing consistent with this opinion.” ^[18] Recently, we remanded for an entire resen- 67 tencing “because reconsideration of those [vacated] condi- tions may conceivably induce one or more of the judges to alter the prison sentence that he imposed.” Thompson , 777 F.3d at 382.

We hesitate to require a complete resentencing in the cas- es before us, especially in Crisp’s case, as only a small num- ber of his conditions have been affected by this opinion. But because the custodial and supervised release portions of a sentence serve somewhat, though not entirely, overlapping purposes, there might properly be an interplay between prison time and the term and conditions of supervised re- lease. ^[19] See Albertson , 645 F.3d at 198. If certain supervised release conditions are vacated, the balance struck by the sen- tencing judge might be disrupted to a degree where the judge would wish to alter the prison term and/or other con- ditions to ensure that the purposes of deterrence, rehabilita- tion, and protecting the public are appropriately furthered by the overall sentence. Accordingly, as we did in Thompson , we vacate the entire sentences and remand for a complete resentencing.

After this long march through these defendants’ chal- lenges and our recent supervised-release jurisprudence, a sentencing judge might be frustrated with the task of navi- imposed.”), and Shannon , 743 F.3d at 503 (“We vacate Special Condition No. 10 of Shannon’s supervised release and remand for further proceed- ings consistent with this opinion.”). While an interplay may be proper, the prison term and supervised

release term should not be treated as interchangeable. See Johnson , 529 U.S. at 60.

gating the maze of rules and principles that we— interpreting the strictures of Congress—have оutlined. A sentencing judge might be tempted to conclude that the im- position of discretionary conditions of supervised release is more trouble than it is worth. And perhaps in certain cases, only a small number of well-tailored discretionary condi- tions may be all that is necessary to accomplish the purposes of supervised release. A comparatively small number of conditions might also make compliance easier on defendants and supervision easier on understaffed probation depart- ments. But no matter the number of conditions, so long as they are appropriately tailored, adequately justified, and orally pronounced after proper notice, they will be upheld. Whether the system of supervised release is worth its human and financial costs is a matter beyond our mandate and competence. We trust that the supervised-release system represents a worthwhile method of rehabilitating defend- ants, deterring future crimes and protecting the public.

In all three cases, the judgments are R EVERSED , and the cases are R EMANDED for resentencing.

Notes

[1] See, e.g. , United States v. Sewell , --- F.3d ----, No. 14-1384, 2015 WL 1087750 (7th Cir. Mar. 13, 2015); United States v. Thompson , 777 F.3d 368

[2] However, as discussed below, it is probable (and proper) that sentenc- ing judges impose both custody and supervised release for somewhat overlapping purposes, and if supervised release was not an option the same judge might impose a lengthier custodial sentence. In this way, the imposition of supervised release can be seen as potentially reducing the custodial sentence.

[3] See generally United States v. Maulding , 627 F.3d 285, 287–88 (7th Cir. 2010) (collecting cases addressing similar arguments).

[4] An argument could be made that a sentencing judge may adopt any unobjected-to conditions in the presentence report without the need to make findings. Cf. Fed. R. Crim. P. 32(i)(3)(A) (a sentencing judge may accept any undisputed portion of the presentence report). Because the issue has not been raised by the parties, we do not consider it here.

[5] The statute requires that each discretionary condition be “consistent with any pertinent policy statements” by the Sentencing Commission. 18 U.S.C. § 3583(d)(3). The defendants in these cases appear to argue that a sentencing judge is required to identify a particular policy statement is- sued by the Sentencing Commission prior to imposing any discretionary condition of supеrvised release. We do not agree. However, if a chal- lenged condition is inconsistent with a pertinent policy statement, then the condition would violate § 3583(d)(3).

[6] A modified version of that broader search condition was imposed upon Jurgens as a “special condition,” and is discussed infra .

[7] Jurgens came close to waiving this challenge. See Cary , 775 F.3d at 927 (“We will not second-guess conditions of supervised release imposed consistent with an offender’s request in the district court.”).

[8] We have encouraged judges to “consider the possibility of setting sun- set dates for some of the more onerous terms.” Quinn , 698 F.3d at 652. Although we find no plain error in the imposition of the treatment con- ditions for the full term of Jurgens’ supervised release, on remand the sentencing judge may consider imposing sunset dates on the treatment conditions. If treatment continues to be warranted beyond the sunset dates, the term may be extended. See Thompson , 777 F.3d at 375.

[9] The condition as a whole reads: “You shall participate in a sex offender treatment program as deemed necessary by the U.S. Probation Office. You shall pay for such services, if financially able, as directed by the U.S. Probation Office. You will submit to physiological testing, including pol- ygraph testing, which may be part of a sex offender treatment program as directed by the U.S. Probation Office. You shall pay for such services, if financially able, as directed by the U.S. Probation Office.”

[10] Plethysmograph testing involves placing a device on a man’s penis in order to measure his sexual response to various visual and auditory stimuli. See United States v. Weber , 451 F.3d 552, 561–62 (9th Cir. 2006).

[11] The condition reads in full: You shall participate with the U.S. Probation Office’s Computer and Internet Monitoring Program during your term of supervision. This shall apply to any per- sonal computers that you have, not to any computers that you need to access through your employment. The monitoring program will start as soon as possible after your supervision term begins. You shall sign the rules of the Computer and Internet Monitoring Program and comply with the conditions of this program. During this time, you shall install filtering software on any computer you possess or use which will monitor and block access to any websites that contain illegal child, or illegal por- nography. You shall allow the U.S. Probation Officer and Office unannounced access to any computer you possess or use, other than that you use through your employment, to verify that the filtering software is func-

[12] Likewise, this condition is significantly narrower than the condition at issue in the primary case relied upon by Jurgens in his reply, United States v. Malenya , 736 F.3d 554 (D.C. Cir. 2013). In Malenya , the court va- cated a condition which provided that the defendant “shall not possess or use a computer or have access to any on-line service without the prior approval of the United States Probation Office ... and [shall] allow instal- lation of a computer and Internet-monitoring program.” Id . at 560. The court vacated this condition because “the record contains no evidence … that Malenya indulged in adult or child pornography” and “[a] ban on computer and internet usage, qualified only by the possibility of proba- tion office approval, is obviously a significant deprivation of liberty.” Id . at 560–61. Not only is the computer monitoring condition in this case significantly less restrictive than the condition at issue in Malenya , but the monitoring condition in this case is closely tailored to Jurgens’ of- fense, unlike in Malenya .

[13] See Victor Hugo, Les Misérables (1862).

[14] See James Hilton, Goodbye Mr. Chips (1934).

[15] Kappes also challenges the pay-if-able language in special condition one, which prohibits him from excessive use of alcohol and use of mood- altering substances and requires him to undergo substance-abuse treat- ment. We have already vacated this condition.

[16] The condition states in full: If there is reasonable suspicion to believe that you are in violation of a condition of supervised release, you shall submit to the search of your person, automobile, and property under your control by the U.S. Probation Of- fice. You shall also allow the U.S. Probation Office to conduct periodic unannounced examinations of your computer equipment, Internet capable devices, similar electronic devices, related computer peripherals, which may include retrieval and copying of all data from your device to ensure compliance with this condition, and/or removal of such equipment for the purpose of conduct- ing a more thorough inspection.

[17] “[S]ince 2005 we have decided nearly 200 cases presenting questions under the Cunningham duty to explain the reasons for rejecting principal arguments in mitigation.” United States v. Donelli , 747 F.3d 936, 941 (7th Cir. 2014). In an effort to address this recurring issue, we offered a sug- gestion to sentencing judges in United States v. Garcia-Segura , 717 F.3d 566 (7th Cir.), cert. denied , 134 S. Ct. 667 (2013), which we repeat here: In order tо ensure that defendants feel that they have had such arguments in mitigation addressed by the court and to aid appellate review, after imposing sen- tence but before advising the defendant of his right to appeal, we encourage sentencing courts to inquire of de- fense counsel whether they are satisfied that the court has addressed their main arguments in mitigation. If the response is in the affirmative, a later challenge for failure to address a principal mitigation argument under the reasoning of Cunningham would be considered waived. If not, the trial court would have the opportunity to clar- ify whether it determined that the argument was so weak as not to merit discussion, lacked a factual basis, or has rejected the argument and provide a reason why. An affirmative answer, however, would not waive an ar- gument as to the merits or reasonableness of the court’s treatment of the issue.

[18] Compare Siegel , 753 F.3d at 717 (“So the prison sentences in both our cases stand, but the cases must be remanded for reconsideration of the conditions of supervised release that we have determined to be inappro- priate, inadequately defined, or imposed without the sentencing judge’s having justified them by reference to the sentencing factors in 18 U.S.C. § 3553(a).”), and Goodwin , 717 F.3d at 526 (“[W]e affirm Goodwin’s con- viction, vacate the supervised release portion of his sentence, and re- mand to the district court for resentencing consistent with this opinion. The resentencing shall be limited to a reassessment of the length of Goodwin’s supervised release and any special conditions imposed dur- ing this period.”), and Quinn , 698 F.3d at 653 (“The term of supervised release is vacated, ‍‌‌‌​‌‌‌‌‌‌​‌​‌​‌‌‌​​​​​​‌‌‌‌‌‌‌‌‌‌‌​​‌‌​‌​​​‌‌​‌‍and the case is remanded for resentencing on that is- sue only.”), with United States v. Sewell , --- F.3d ----, No. 14-1384, 2015 WL 1087750, at *12 (7th Cir. Mar. 13, 2015) (“We vacate … each of Sewell’s conditions of supervised release. We vacate each condition because re- consideration of some conditions may impact the imposition of others. The sentence is affirmed in every other respect. The case is remanded to the district court for proceedings consistent with this opinion.”), and Baker , 755 F.3d at 529 (“We vacate Baker’s supervised release term, spe- cial conditions 1 and 4, and the payment provision in conditions 1, 3, and 8; and remand for resentencing consistent with this opinion. We affirm Baker’s prison term and all of the other terms in the special conditions

Case Details

Case Name: United States v. Parrish Kappes

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Apr 8, 2015

Citation: 782 F.3d 828

Docket Number: 14-1223, 14-2135, 14-2482

Court Abbreviation: 7th Cir.