                     RECOMMENDED FOR FULL-TEXT PUBLICATION
                         Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                 File Name: 13a0090p.06

              UNITED STATES COURT OF APPEALS
                             FOR THE SIXTH CIRCUIT
                               _________________


                                                X
                           Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                 -
                                                 -
                                                 -
                                                     No. 12-5516
          v.
                                                 ,
                                                  >
                                                 -
                        Defendant-Appellant. -
 RASHAN ROBERT DOYLE,
                                                N
                   Appeal from the United States District Court
                for the Western District of Tennessee at Memphis.
         No. 2:11-cr-20247-1—Jon Phipps McCalla, Chief District Judge.
                          Decided and Filed: April 3, 2013
               Before: KEITH, MARTIN, and COLE, Circuit Judges.

                                 _________________

                                     COUNSEL
ON BRIEF: Needum L. Germany, III, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Memphis, Tennessee, for Appellant. Debra L. Ireland, THE UNITED
STATES ATTORNEY’S OFFICE, Memphis, Tennessee, for Appellee.

                                 _________________

                                      OPINION
                                 _________________

       BOYCE F. MARTIN, Jr., Circuit Judge. After moving to Tennessee, Rashan
Doyle was charged with failure to register as a sex offender, in violation of 18 U.S.C.
section 2250(a), to which he pleaded guilty without a plea agreement. The district court
sentenced Doyle to three years and one month in prison followed by ten years of
supervised release, upon which the district court imposed four special conditions,
numbered three, four, six and eight. Doyle appeals the district court’s imposition of
these four special conditions of supervised release. Because the district court erred
procedurally by failing to explain its reasons for imposing the special conditions, and

                                           1
No. 12-5516         United States v. Doyle                                           Page 2


because the record does not otherwise illuminate the reasons for them, we VACATE the
district court’s imposition of the special conditions of supervised release and REMAND
for resentencing proceedings consistent with this opinion.

        We take the facts of this case from Doyle’s Presentence Investigation Report
because he did not object to its contents at the sentencing hearing. United States v.
Vonner, 516 F.3d 382, 385 (6th Cir. 2008) (citing United States v. Adkins, 429 F.3d 631,
632-33 (6th Cir. 2005)). According to the Report, Doyle was convicted in New York
state court of attempted sexual abuse in the first degree and sentenced to six months’
incarceration and ten years’ probation. As a result of this qualifying felony conviction,
the Sex Offender Registration and Notification Act and New York state laws required
Doyle to register as a Tier III sex offender and to notify the registry of changes of
address for home, school and work. If Doyle left New York state, he had to notify the
registry of his departure and then register in the state to which he moved.

        Doyle moved to Tennessee and failed to register. The Presentence Report,
applying the 2011 Sentencing Guidelines Manual, calculated Doyle’s base offense level
as sixteen, because Doyle was a Tier III offender who failed to register as required.
Because Doyle accepted responsibility for failing to register, the Presentence Report
recommended reducing the total offense level to thirteen, noting that this full reduction
could only be granted upon a formal motion by the government at the time of Doyle’s
sentencing. Based on Doyle’s extensive criminal history, the Report gave him a criminal
history category of VI, which, combined with his total offense level, resulted in a
guideline imprisonment range of two years and nine months, on the low end, to three
years and five months, on the high end. The Report also recommended that Doyle be
under supervised release for not less than five years. U.S.S.G. § 5D1.2. Worksheet A,
part of the Presentence Report, listed the special conditions of supervised release that the
district court imposed at the sentencing hearing and which Doyle now challenges.

        Condition number three forbids Doyle from possessing any pornography, even
legal pornography. The district court stated that Doyle was “[n]ot to possess any child
pornography–or any pornography at all, child or adult pornography.”
No. 12-5516         United States v. Doyle                                            Page 3


        Condition number four states that Doyle may not have any direct or indirect
contact with any child under the age of eighteen, shall not reside with any child under
the age of eighteen, and shall not loiter near school yards, playgrounds, swimming pools,
arcades or other places frequented by children.

        Condition number six states that Doyle shall not use sexually-oriented telephone
numbers or computer services.

        Finally, Condition number eight states that Doyle shall not possess or use a
computer with access to any “on-line service” or other forms of wireless communication
at any location (including employment) without the prior approval of the Probation
Officer. This includes an Internet Service Provider, bulletin board system or any other
public or private network or email system.

        Doyle and the government both agree that plain-error review applies in this case.
At the sentencing hearing, Doyle did not object to any of these special conditions of his
supervised release. The district court asked Doyle’s counsel if he had “any objections
not previously raised?” Doyle’s counsel responded “No objections, Your Honor.”
Because Doyle’s counsel did not object during the sentencing hearing to the special
conditions of supervised release that he now challenges on appeal, we must review his
challenges under the plain-error standard. United States v. Inman, 666 F.3d 1001, 1003
(6th Cir. 2012) (per curiam) (citing United States v. Kingsley, 241 F.3d 828, 835 (6th
Cir. 2001)).

        To establish that the district court committed plain error in imposing conditions
of supervised release, Doyle must establish four elements: (1) that the district court
committed an error; (2) that the error was obvious or clear; (3) that the error affected
Doyle’s substantial rights; and (4) that the error affected the fairness, integrity, or public
reputation of his judicial proceedings. Inman, 666 F.3d at 1003-04 (6th Cir. 2012)
(citing United States v. Gunter, 620 F.3d 642, 645 (6th Cir. 2010)).

        First, we must figure out whether the district court committed an error in
imposing the special conditions of supervised release.            When imposing special
No. 12-5516          United States v. Doyle                                         Page 4


conditions of supervised release, a district court may err procedurally or substantively.
United States v. Carter, 463 F.3d 526, 528-29 (6th Cir. 2006). Procedurally, a district
court errs if it fails, at the time of sentencing, to state in open court its rationale for
mandating a special condition of supervised release. Id. at 528-29. (citing Kingsley,
241 F.3d at 836 (quoting 18 U.S.C. § 3553(c)) (quotation marks, footnote, and rest of
citation omitted).

       Here, the sentencing hearing transcript shows that the district court erred
procedurally by failing to explain, at the time of sentencing, its reasons for imposing any
of the special conditions of supervised release that Doyle now challenges.

       The sentencing hearing transcript shows that the district court did not explain
why it was imposing condition number three, forbidding Doyle from possessing any
adult pornography; instead, the district court merely stated that Doyle must “ . . .
obviously, not possess pornography, period[,]” before adding that although the case was
not “about pornography,” it was “about failing to register and being a sex offender,” and
stating “we certainly don’t want to trigger those problems, so we’re going to try to deal
with those.” This does not amount to an explanation because neither the offense for
which Doyle was being sentenced–failure to register as a sex offender–nor the previous
offense which subjected him to the registration requirement–attempted sexual abuse in
the first degree–involved Doyle’s use or distribution of pornography. Therefore, the
district court erred procedurally in failing to explain, at the time of sentencing, why it
imposed the special condition of supervised release prohibiting Doyle from possessing
pornography.

       Nor did the district court explain why it imposed condition number four,
preventing Doyle from having direct or indirect contact with any children under the age
of eighteen. The district court merely recited that Doyle may not have any direct or
indirect contact with any child under the age of eighteen, shall not reside with any child
under the age of eighteen, and shall not loiter near school yards, playgrounds, swimming
pools, arcades or other places frequented by children. The district court failed to explain
its reasoning for applying this special condition of supervised release. Therefore, the
No. 12-5516          United States v. Doyle                                            Page 5


district court erred procedurally in failing to explain its reasoning for applying this
special condition of supervised release.

        Similarly, the district court offered no explanation on the record for why it
imposed condition number six, that Doyle not use sexually-oriented telephone numbers
or computer services. Nor did the district court explain why, as condition number eight
of his supervised release states, it was forbidding Doyle from possessing or using a
computer with access to any on-line service or other forms of wireless communication
at any location–including at a job–without getting approval beforehand from the
Probation Officer.

        Given that the district court erred procedurally by failing to explain its reasons
for imposing any of the special conditions, we must now determine whether this error
was clear or obvious. Inman, 666 F.3d at 1006 (citing Gunter, 620 F.3d at 645). Our
cases require a district court to state in open court at the time of sentencing its reasons
for mandating special conditions of supervised release. Id. (quoting United States v.
Brogdon, 503 F.3d 555, 563 (6th Cir. 2007)) (quotation marks and parenthetical
omitted). Here, because the district court failed to explain any of its reasons as our cases
require, we conclude that the district court clearly erred.

        Even if the district court fails, as it did here, to explain at the time of sentencing,
its reasons for imposing a special condition of supervised release, if the record clearly
shows why the district court imposed the conditions that it did, then the district court’s
failure to explain its reasons for imposing special conditions of supervised release will
amount to harmless error, making a remand unnecessary. United States v. Berridge,
74 F.3d 113, 119 (6th Cir. 1996).

        For example, in Berridge, the defendant had pleaded guilty to making false
statements on a loan application while he was working for a bank. Id. at 114. On
appeal, the defendant challenged the district court’s imposition of a special condition of
supervised release that prevented him from getting a job in the banking industry. Id. at
118. Specifically, he argued that the district court erred in failing to state, on the record
at the sentencing hearing, the reasons for this special condition of supervised release
No. 12-5516         United States v. Doyle                                           Page 6


barring him from working for a bank during his probation. Despite the district court’s
failure to explain its reasoning for applying this special condition, we affirmed,
explaining that we must uphold conditions of supervised release or probation if they are
reasonably related to the twin goals of probation: rehabilitation of the defendant, and the
protection of the public. Id. (citing United States v. Bortels, 962 F.2d 558, 560 (6th Cir.
1992) (citation omitted). We further explained that, although the district court failed to
state its reasons on the record, this failure constituted harmless error and did not require
us to remand the case because the reason for imposing this employment restriction on
the defendant were “quite clear” from the record–the restriction would assist him in
avoiding the conditions that led him to commit the crime for which he was sentenced.
Id. at 119.

        Here, in contrast to Berridge, the record does not clarify how conditions three,
four, six, and eight reasonably relate to the twin goals of probation– rehabilitation of the
defendant and the protection of the public. Forbidding Doyle from possessing any
pornography or calling a sexually-oriented phone number or service does not reasonably
relate to the offense for which he was sentenced: failure to register as a sex offender. To
be sure, forbidding Doyle from possessing pornography, or calling a phone-sex number,
might aid Doyle’s rehabilitation if he had pleaded guilty to, for example, distribution of
child pornography as the defendant did in United States v. Lantz, 443 F. App’x 135, 137
(6th Cir. 2011). In Lantz, the panel did not find plain error in the district court’s
imposing the special condition that the defendant not possess any pornography. Id. at
141. But in Lantz the defendant pleaded guilty to one count of transporting child
pornography. Id. at 137. Therefore, the special condition related to the nature and
circumstance of the offense.

        In contrast to Lantz, here the underlying offense–failure to register as a sex
offender–for which the special conditions applied, did not involve pornography of any
kind. Therefore, the conditions that Doyle not possess pornography nor call a phone-sex
line do not relate to the offense of failing to register as a sex offender. Nor does the
No. 12-5516         United States v. Doyle                                          Page 7


record show that Doyle, if allowed either to possess legal, adult pornography, or to call
a phone-sex line, would pose a threat to public safety.

       Likewise, the record does not contain sufficient evidence to support the portion
of condition number four that bars Doyle from having any direct or indirect contact with
any child under the age of eighteen or from residing with any children under the age of
eighteen. Doyle conceded in his brief that his prior conviction for attempted sexual
abuse does justify the part of the condition preventing him from loitering near school
yards, playgrounds, swimming pools, arcades or other places frequented by children.
Doyle also conceded that his prior conviction would justify a condition preventing him
from having contact with children to whom he is not related, or a condition limiting
Doyle to supervised contact with children. But, Doyle argues, condition number four
goes too far because it prevents him from having any contact with his own four
biological children. We agree; the record does not justify applying special condition
four to Doyle’s own children.

       Lastly, the record does not support condition number eight’s banning Doyle from
using the internet. Again, banning Doyle from using the internet cannot have a
rehabilitative effect because the crime for which Doyle was convicted did not involve
the use of the internet, and the record does not show why banning him from internet use,
without a probation officer’s prior approval, relates to rehabilitating Doyle nor to
protecting the public.

       We thus conclude that neither the district court’s own words explain, nor does
the record as a whole illuminate, any reasons for imposing the special conditions that
Doyle challenges.

       Under plain-error review, we must next examine whether the district court’s error
in failing to explain its reasons for applying the special conditions of supervised release
affected Doyle’s substantive rights. Inman, 666 F.3d at 1006 (citing Gunter, 620 F.3d
at 645). To affect Doyle’s substantive rights, the error must have prejudiced him, and
Doyle has the burden of persuasion to make a specific showing of prejudice. United
States v. Jones, 108 F.3d 668, 672 (6th Cir. 1997) (citing United States v. Olano, 507
No. 12-5516         United States v. Doyle                                           Page 8


U.S. 725, 734-35 (1993)) (parallel citation omitted). To affect a defendant’s substantive
rights or prejudice him, the district court’s failure to explain its reasons for the special
conditions of supervised release must have affected the outcome of the district court
proceedings. Inman, 666 F.3d at 1006 (quoting Olano, 507 U.S. at 734) (parallel
citations and quotation marks omitted).

        Olano expanded upon the meaning of “affected the outcome of the district court
proceedings” by referring to three of the Court’s prior cases. Olano, 507 U.S. at 734
(citing Bank of Nova Scotia v. United States, 487 U.S. 250, 255-57; United States v.
Lane, 474 U.S. 438, 454-64 (1986) (Brennan, J., concurring in part and dissenting in
part); and Kotteakos v. United States, 328 U.S. 750, 758-65 (1946) (parallel citations
omitted)). Bank of Nova Scotia held that an error affects the outcome of the district court
proceeding where it “may have had ‘substantial influence’ on the outcome of the
proceeding.” Bank of Nova Scotia, 487 U.S. at 256 (emphasis added) (quoting
Kotteakos, 328 U.S. at 765) (parallel citation omitted). Therefore, a district court’s error
affects a defendant’s substantial rights where the error affected the outcome of the
district court proceedings, insofar as the error may have had a substantial influence on
the outcome of the proceedings.

        We have held that “[s]entencing errors [affect the outcome of a district court
proceeding] where there is a reasonable likelihood the errors impacted the sentence.”
Inman, 666 F.3d at 1006 (citing United States v. Abbouchi, 502 F.3d 850, 858 (9th Cir.
2007) (parenthetical and rest of citation omitted). Inman quoted approvingly a First
Circuit case holding that a district court’s failure to explain its rationale for imposing
special conditions of supervised release affects the outcome of the district court
proceedings because there is a reasonable probability that the district court might not
have imposed the condition if it had fulfilled its obligation to explain the basis for the
special condition–or at least had made sure that the record showed the basis for it. Id.
(quoting United States v. Perazza-Mercado, 553 F.3d 65, 79 (1st Cir. 2009) (quotation
marks omitted)). Therefore, we held in Inman that the district court’s failure to explain
No. 12-5516         United States v. Doyle                                            Page 9


the reasons for the special conditions of supervised release affected Inman’s substantive
rights. Id.

        Here, the record before us allows Doyle to meet his burden. The district court’s
failure to explain its rationale for imposing any of the special conditions of supervised
release may have had a substantial influence on the outcome of the proceedings. Given
the lack of any explanation for the imposition of the special conditions, and given the
absence of any evidence in the record allowing us to infer the basis for the special
conditions, there is a reasonable probability that the court may not have imposed the
special conditions if it had fulfilled its obligation to explain the basis for the conditions
or at least made sure that the record illuminated the basis for the conditions. Here, as in
Inman, the district court might not have imposed the special conditions of supervised
release if it had explained the basis for these conditions. Therefore, we conclude that the
district court’s failure to explain its reasoning affected Doyle’s substantial rights.

        Finally, under plain error review, we must determine whether the district court’s
error seriously affected the fairness, integrity, or public reputation of the judicial
proceedings. Inman, 666 F.3d at 1006 (citing Gunter, 620 F.3d at 645). We have held
that a sentencing error leading to a more severe sentence diminished the integrity and
public reputation of the judicial system as well as diminished the fairness of the criminal
sentencing system. Id. (quoting United States v. Oliver, 397 F.3d 369, 380 (6th Cir.
2005)) (quotation marks and rest of citation omitted). In Inman, we held that, because
both the length of supervised release (lifetime) and the conditions imposed were likely
more severe than if the district court had followed the correct procedures by explaining
why it imposed the special conditions, the district court’s errors seriously affected the
fairness, integrity, or public reputation of the proceedings. Id. at 1007.

        Here, although the length of the term of supervised release is not an issue, the
conditions themselves, as in Inman, did affect the fairness, integrity, or public reputation
of the proceedings because these conditions were likely more severe than the ones the
district court would have imposed had it fulfilled its obligation to explain its reasoning
for imposing any special conditions.
No. 12-5516         United States v. Doyle                                         Page 10


        In conclusion, both the district court’s procedural error in failing to explain its
reasons for these conditions, and the record’s failure to illuminate their appropriateness,
require us to vacate special conditions three, four, six and eight, and to remand this case.
Because we remand based upon the district court’s clear error in failing to explain (or
otherwise put on the record) its reasoning for imposing the special conditions of
supervised release, we do not reach Doyle’s constitutional arguments about the special
conditions. See Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 445-46
(1988) (“A fundamental and longstanding principal of judicial restraint requires that
courts avoid reaching constitutional questions in advance of the necessity of deciding
them.”) (citations omitted).

        If, in resentencing Doyle, the district court does apply special conditions of
supervised release, we emphasize that “[s]upervised release conditions must be tailored
to the specific case before the court.” Inman, 666 F.3d at 1005. We also emphasize that,
as the Court has held, “Congress intended supervised release to assist individuals in their
transition to community life.” United States v. Johnson, 529 U.S. 53, 58 (2000). In
contrast to prison, “[s]upervised release fulfills rehabilitative ends, distinct from those
served by incarceration.” Id. (citing 18 U.S.C.A. § 3553(a)(2)(D)) (rest of citation
omitted).

        For the foregoing reasons, we VACATE special conditions numbers three, four,
six and eight of Doyle’s supervised release and we REMAND for resentencing
proceedings consistent with this opinion.
