                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 19-2513
                        ___________________________

                             United States of America

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

                                   Gary Lee Smith

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                    Appeal from United States District Court
                   for the Western District of Missouri - Joplin
                                 ____________

                             Submitted: April 15, 2020
                               Filed: June 5, 2020
                                 ____________

Before SMITH, Chief Judge, BENTON and KOBES, Circuit Judges.
                              ____________


BENTON, Circuit Judge.

      Gary Lee Smith appeals the denial of his motion to modify two conditions of
supervised release. Smith was convicted in 2003 of producing, transporting, and
reproducing child pornography in violation of 18 U.S.C. §§ 2251(a), 2252(a)(1), and
2252(a)(2). The district court sentenced him to 235 months in prison, followed by 5
years of supervised release. This court affirmed. United States v. Smith, 367 F.3d
748, 751 (8th Cir. 2004). The district court denied his motion under 28 U.S.C.
§ 2255. Smith v. United States, 2006 WL 2338254, at *1 (W.D. Mo. Aug. 14, 2006),
aff’d, 256 Fed. Appx. 850, 851 (8th Cir. 2007), cert. denied, 552 U.S. 1270 (2008).
In 2019, the district court1 partly granted and partly denied his motion to modify the
conditions of supervised release. Smith appeals. Having jurisdiction under 28 U.S.C.
§ 1291, this court affirms.

       This court reviews for abuse of discretion a district court’s decision to modify
conditions for supervised release. United States v. Winston, 850 F.3d 377, 379 (8th
Cir. 2017). Underlying questions of compliance with due process and the rules of
criminal procedure are reviewed de novo. Id. at 379-80.

       Smith argues that the district court should have held a hearing before
modifying two conditions of supervised release. A court “may modify, reduce, or
enlarge the conditions of supervised release . . . pursuant to the provisions of the
Federal Rules of Criminal Procedure.” 18 U.S.C. § 3583(e)(2). A court must hold
a hearing before modifying conditions of supervised release, unless, as relevant here,
(A) waived;2 or the relief sought (B) is favorable to the defendant . . . , and (C) is not,
after notice and reasonable opportunity, objected to by the government. Fed. R.
Crim. P. 32.1(c).

                                            I.

       The original Condition 6, imposed at Smith’s sentencing, said:




       1
       The Honorable Douglas Harpool, United States District Judge for the Western
District of Missouri.
       2
           The government makes no waiver argument here.

                                           -2-
             The defendant will not associate or have any contact
             (including incidental contact such as being present in
             locations where minors frequent) with
             persons/females/males under the age of 18, except in the
             presence of a responsible adult who is aware of the nature
             of the defendant’s background and current offense and who
             has been approved by the Probation Office.

       Smith moved to modify this condition, objecting that “being present in
locations where minors frequent” was overly broad. He asserted it would restrict him
from almost every common space, including grocery stores, mass transit, sporting
events, and restaurants. He suggested:

             Defendant shall have no contact with any person under the
             age of 18 except (1) in the presence of an adult who is
             aware of the nature of the defendant’s background and
             current offense, and who has been approved by the U.S.
             Probation office; (2) in the course of normal commercial
             business; or (3) in other cases of unintentional and
             incidental contact.

      The government did not object to this modification, but requested adding a
sentence:

             The defendant is barred from places where minors (under
             the age of 18) congregate, such as residences, parks, pools,
             daycare centers, playgrounds and schools, unless written
             consent is granted by the Probation Office.

       Agreeing with both Smith and the government, the district court replaced the
original condition with Smith’s suggestion, plus the added sentence. The district
court said in its order that it was granting Smith’s motion for Condition 6 and “will
modify” the condition. See United States v. James, 792 F.3d 962, 972-73 (8th Cir.


                                         -3-
2015) (holding that a court modifies conditions when it “broadens the deprivation of
liberty” or “expands the burden” on the defendant). Cf. United States v. Durham,
618 F.3d 921, 934 (8th Cir. 2010) (holding that a court does not modify conditions
by issuing a later version with an innocuous discrepancy that does not conflict with
an earlier version, even if the two do not track word-for-word). Concluding that “the
relief sought is favorable” to Smith, the district court denied a hearing.

     The district court erred by denying Smith a hearing before modifying Condition
6. See Fed. R. Crim. P. 32.1(c). Rule 32.1(c)(1) requires a hearing before
“modifying” the conditions of supervised release. Id. 32.1(c)(1). No exception to the
hearing requirement applies here, because the government objected and the district
court adopted the government’s proposed changes to the condition. See id.
32.1(c)(2). The relief that Smith received was less favorable than what he sought.
See id. 32.1(c)(2)(B). The district court should have held a hearing.3

      Although the district court erred by denying a hearing, the government
contends that any error was harmless. See Fed. R. Crim. P. 52(a). Any error that
does not affect substantial rights “must be disregarded.” Id. See 28 U.S.C. § 2111
(requiring appellate court to give judgment “without regard to errors or defects which
do not affect the substantial rights of the parties”). To affect substantial rights “in
most cases . . . means that the error must have been prejudicial: It must have affected
the outcome of the district court proceedings.” United States v. Olano, 507 U.S. 725,
734 (1993). The government has the burden to prove harmless error. United States
v. Pirani, 406 F.3d 543, 550 (8th Cir. 2005) (en banc), citing Olano, 507 U.S. at 734-
35. When analyzing for harmless error, reversal is not required “if the basis for the

      3
        This court need not address whether a district court may deny a hearing before
refusing to modify a condition. See generally United States v. Nonahal, 338 F.3d
668, 671 (7th Cir. 2003) (holding that Rule 32.1(c) does not require a hearing when
a district court refuses to modify conditions); United States v. Floyd, 491 F. Appx.
331, 333 (3d Cir. 2012) (same).

                                         -4-
imposed condition can be discerned from the record.” United States v. Thompson,
653 F.3d 688, 694 (8th Cir. 2011) (upholding condition restricting pornography
because record showed defendant’s sexual interest in children).

       The government reasons that the added sentence does not restrict Smith beyond
the original condition, and is, in fact, favorable to him. The added sentence—barring
Smith from places where minors “congregate”—means the same as the original
restriction, barring him from places minors “frequent.” See United States v. Bender,
566 F.3d 748, 753 (8th Cir. 2009) (analyzing restriction on places “minors are known
to frequent” under “congregate” case law); United States v. Ristine, 335 F.3d 692,
696-97 (8th Cir. 2003) (upholding restriction on places where minor children
“congregate” by relying on case upholding restriction on “places, establishments, and
areas frequented by minors”). The added sentence’s list of example locations gives
Smith guidance, and does not bar him from places where minors do not actually
congregate. See United States v. Crume, 422 F.3d 728, 733-34 (8th Cir. 2005)
(holding that condition barring defendant “from places where minor children under
the age of 18 congregate such as residences, parks, beaches, pools, daycare centers,
playgrounds, and schools” only barred him from places where children “actually
congregate”); Ristine, 335 F.3d at 696-97 (same). Importantly, the new condition
adds safe harbors for Smith, allowing him contact with minors in the course of normal
commercial business, and unintentional and incidental contact. See United States v.
Muhlenbruch, 682 F.3d 1096, 1104 (8th Cir. 2012) (noting that exception for
incidental contact makes restriction on contact with minors reasonable). When
modifying Condition 6, the court narrowed it favorably to Smith.

      A hearing would not have changed this outcome by enabling Smith to obtain
the even more favorable relief that he sought: the removal of any restriction on places
where minors congregate or frequent. Conditions restricting defendants with child
pornography offenses from places where minors frequent or congregate are common.
See, e.g., United States v. Wiedower, 634 F.3d 490, 497-98 (8th Cir. 2011)

                                         -5-
(upholding bar on “direct contact with minors . . . and . . . entering into any area
where children frequently congregate including, but not limited to, schools, daycare
centers, theme parks, theaters, and playgrounds” because defendant was convicted of
possessing child pornography). Smith received notice of the government’s added
sentence (which the district court adopted). He had opportunity to reply to the
government’s proposal—and he did reply. The entire record shows no facts that
would have affected the district court’s decision to keep the restriction on places
where minors congregate or frequent. Because denying a hearing did not affect
Smith’s substantial rights, the district court’s order on Condition 6 is affirmed.

                                        II.

                                        A.

      Smith argues that the court unfavorably modified Condition 7. The original
condition, imposed at sentencing, said:

            The defendant will neither possess nor have under his
            control any matter that is pornographic or that depicts or
            alludes to sexual activity or depicts minors under the age
            of 18. This includes, but is not limited to, any matter
            obtained through access to any computers or any material
            linked to computer access or usage.

       Smith believed this condition was unconstitutionally vague, overbroad, and
infringed his First Amendment right to view non-obscene material containing nudity.
He sought to replace it with:

            The defendant shall neither possess nor have under his
            control any material which contained [sic] child
            pornography, or photographic evidence of children


                                        -6-
             engagerd [sic] in any sexual conduct as defined by 18
             U.S.C. § 2256.

      Instead, at the government’s suggestion, the district court modified the
condition to resolve Smith’s constitutional concerns by replacing it entirely with:

             The defendant will neither possess nor have under his
             control any matter that is pornographic/erotic; or that
             describes sexually explicit conduct, violence toward
             children or child pornography as described in 18 U.S.C.
             § § 2256(2) and (8), including photographs, images, books,
             writings, drawings, videos, and electronic material.

See United States v. Carson, 924 F.3d 467, 472 (8th Cir. 2019) (holding that an
identical restriction was not unconstitutionally vague and overbroad) (condition
quoted in full in Brief for Appellant at 13, No. 17-3589, 2018 WL 661301, at *5)
(condition also available at W.D.Mo. Case No. 4:15-cr-00399-RK-1, ECF No. 42 at
5). The district court said in its order that it was granting Smith’s motion for
Condition 7 and “will modify” the condition. See James, 792 F.3d at 972-73.
Concluding that “the relief sought is favorable” to Smith, the district court denied a
hearing.

     The district court erred by denying Smith a hearing before modifying Condition
7. See Fed. R. Crim. P. 32.1(c). Rule 32.1(c)(1) requires a hearing before
“modifying the conditions of probation or supervised release.” Id. 32.1(c)(1). No
exception to the hearing requirement applies here, because (1) Smith received less
favorable relief than what he sought, since his proposed modification would bar only
child pornography, not adult pornography; (2) the government objected; and (3) the




                                         -7-
district court adopted the government’s proposed changes to the condition. See id.
32.1(c)(2). The district court should have held a hearing.4

      Although the district court erred by denying a hearing, the government
contends that any error was harmless. See Fed. R. Crim. P. 52(a). Any error that
does not affect substantial rights “must be disregarded.” Id. See 28 U.S.C. § 2111.
To affect substantial rights “in most cases . . . means that the error must have been
prejudicial: it must have affected the outcome of the district court proceedings.”
Olano, 507 U.S. at 734. The government has the burden to prove harmless error.
Pirani, 406 F.3d at 550, citing Olano, 507 U.S. at 734-35. When analyzing for
harmless error, reversal is not required “if the basis for the imposed condition can be
discerned from the record.” Thompson, 653 F.3d at 694.

       The government reasons that the new condition does not restrict Smith beyond
the original condition, and is, in fact, favorable to him. The original Condition 7
barred “matter that . . . depicts minors under the age of 18.” The new condition does
not bar all depictions of minors, only “matter that . . . describes . . . violence toward
children or child pornography . . . .” The district court narrowed the condition,
modifying it favorably to Smith.

      A hearing would not have changed this outcome by enabling Smith to obtain
the even more favorable relief he sought—unrestricted access to adult pornography.
When “a defendant is convicted of an offense related to child pornography, a ban on
the possession of pornography is appropriately tailored to serve the dual purposes of
promoting the defendant’s rehabilitation and protecting children from exploitation.”


      4
       This court need not address whether a district court may deny a hearing before
refusing to modify a condition. See generally Nonahal, 338 F.3d at 671 (holding that
Rule 32.1 does not require a hearing when a district court refuses to modify
conditions); Floyd, 391 F. Appx. at 333 (same).

                                          -8-
United States v. Bordman, 895 F.3d 1048, 1060 (8th Cir. 2018) (quoting other cases)
(cleaned up). At the original sentencing, the district court found that Smith had made
sexual contact with multiple minors, exhibited no remorse, and tried to gain the trust
of a minor’s family in order to take pornographic photos. Smith does not assert that
the reasons to restrict his access to pornography have changed since his original
sentencing. Based on these findings, restricting access to pornographic/erotic or
sexually explicit material is appropriate. See Wiedower, 634 F.3d at 497 (upholding
restriction on pornography or sexually explicit material because defendant “had a
deeply rooted affinity for child pornography,” even when he had only accessed child
pornography and did not distribute it or seek out minors).

       Smith contends for the first time on appeal that imposing the new condition
was not appropriate because he had not undergone a psychosexual evaluation, and his
sexual offender treatment plan had not begun. Smith did not raise this argument
when replying to the government’s proposed modification to Condition 7, which the
district court adopted. See United States v. Hirani, 824 F.3d 741, 751 (8th Cir. 2016)
(noting that this court may consider a newly raised argument only if it is purely legal
and requires no additional factual development, or if a manifest injustice would
otherwise result).

       Even assuming Smith would have made this new argument at the hearing he
should have had, it would not have affected the outcome. When modifying Condition
7, the district court noted that Smith’s viewing of pornography was “a treatment issue
and a supervision issue.” Another condition requires Smith to participate in a
psychosexual evaluation and any sex offender counseling program as directed by the
Probation Office. If the evaluation or counseling indicates Smith no longer needs a
restriction on pornography, he can seek a modification from the district court.
Because based on the entire record, denying a hearing did not affect Smith’s
substantial rights, the error was harmless.



                                         -9-
                                         B.

       Smith argues that the new Condition 7 is unconstitutionally vague. He believes
this court should review for plain error because he did not object to the new condition
on this ground when the district court issued it. See Carson, 924 F.3d at 472.
However, Smith had no opportunity to object to the new condition at a hearing. Cf.
United States v. Sherwood, 850 F.3d 391, 395 (8th Cir. 2017) (reviewing for abuse
of discretion when defendant failed to object to an unexpected condition imposed at
sentencing). A “party’s concession on the standard of review does not bind the court,
as such a determination remains for this court to make for itself.” United States v.
Perrin, 926 F.3d 1044, 1046 (8th Cir. 2019) (reviewing for plain error despite
government’s concession to abuse-of-discretion standard). When a defendant
challenges a special condition on constitutional grounds, this court reviews de novo.
United States v. Washington, 893 F.3d 1076, 1082 (8th Cir. 2018) (reviewing de
novo a challenge to a special condition as unconstitutionally vague). Under any
standard of review, Smith’s argument against the new Condition 7 fails because there
is no error.

       According to Smith, the term “pornographic/erotic” lacks a specific legal
definition, thus not giving notice of what he may possess. This court has “repeatedly
upheld these same or very same conditions when they were obviously relevant to the
child pornography offense at issue or to the defendant’s history and characteristics.”
Bordman, 895 F.3d at 1060 (cleaned up). See id. at 1062 (citing cases and holding
that “pornography” and “erotica” are not vague as conditions of supervision for a
child pornography case). This term is not vague. See Carson, 924 F.3d at 472
(upholding an identical condition banning possession of “any matter that is
pornographic/erotic” as not unconstitutionally vague).

      Smith also attacks as vague the restriction on matter that “describes sexually
explicit conduct.” However, the new condition references 18 U.S.C. § 2256(2),

                                         -10-
defining “sexually explicit conduct.” The statutory definition gives Smith notice. See
United States v. Mefford, 711 F.3d 923, 927-28 (8th Cir. 2013) (holding that ban on
material depicting or alluding to “sexually explicit conduct as defined by 18 U.S.C.
§ 2256(2)” is not unconstitutionally overbroad or vague).

        Smith believes that Condition 7 gives the probation officer unfettered
discretion. “But conditions delegating limited authority to non judicial officials such
as probation officers are permissible so long as the delegating judicial officer retains
and exercises ultimate responsibility.” United States v. Thompson, 888 F.3d 347,
351-52 (8th Cir. 2018) (affirming condition requiring defendant to “participate in a
sex-offense specific treatment program . . . . until released by the probation office”).
A district court impermissibly delegates judicial authority “only where the district
court gives an ‘affirmative indication’ that it will not retain ‘ultimate authority over
all of the conditions of supervised release.’” United States v. Thompson, 653 F.3d
688, 693 (8th Cir. 2011), quoting United States v. Wynn, 553 F.3d 1114, 1120 (8th
Cir. 2009) (upholding condition requiring defendant to “participate in mental health
counseling (if so directed) under the supervision of the U.S. Probation Office”).

       Here, the district court retains ultimate authority over the conditions of
supervised release. See Thompson, 888 F.3d at 352 (noting that the defendant may
seek relief from the district court if he objects to the probation officer’s orders). See
also United States v. Hobbs, 710 F.3d 850, 855 (8th Cir. 2013) (holding that
condition prohibiting possession, viewing, or use of “sexually stimulating or sexually
oriented” material “deemed inappropriate by the U.S. Probation Officer in
consultation with the treatment provider” is not unconstitutionally overbroad or
vague). Condition 7 is not unconstitutionally vague.

                                     *******

      The judgment is affirmed.
                      _____________________________


                                          -11-
