                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 15a0191n.06

                                           No. 14-3147                                FILED
                                                                                Mar 10, 2015
                                                                            DEBORAH S. HUNT, Clerk
                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                       )
                                                )
       Plaintiff-Appellee,                      )
                                                )
                                                    ON APPEAL FROM THE UNITED
v.                                              )
                                                    STATES DISTRICT COURT FOR THE
                                                )
                                                    NORTHERN DISTRICT OF OHIO
PATRICK ZISKA,                                  )
                                                )
                                                                      OPINION
       Defendant-Appellant.                     )
                                                )
                                                )



       BEFORE: GIBBONS and STRANCH, Circuit Judges; REEVES, District Judge.*

       JANE B. STRANCH, Circuit Judge. Defendant Patrick Ziska pled guilty to knowingly

distributing images of child pornography through peer-to-peer software on his computer. On

appeal, Ziska brings a procedural challenge to the district court’s application of USSG §2G2.2’s

two-level enhancement for use of a computer and five-level enhancement for the distribution of

child pornography in exchange for the receipt of something of value. Ziska also brings a

substantive challenge to his sentence, arguing that the district court failed to fully consider his

diagnosis of Asperger’s disorder. Finally, Ziska contests the district court’s imposition of a

condition on supervised release that requires his parole officer’s written approval before he may




       *
       The Honorable Pamela L. Reeves, United States District Judge for the Eastern District of
Tennessee, sitting by designation.
No. 14-3147
United States of America v. Patrick Ziska
own or possess any type of camera equipment. We conclude that the district court acted within

its discretion with regard to each of Ziska’s challenges and therefore AFFIRM Ziska’s sentence.

                     I. FACTUAL AND PROCEDURAL BACKGROUD

        In March 2009, when Ziska was a senior in high school, law enforcement officers

executed a search warrant at the home where he lived with his parents. Before obtaining the

warrant, FBI agents had used GigaTribe peer-to-peer software to download several dozen images

depicting child pornography from Ziska’s computer, and an undercover FBI agent became

Ziska’s GigaTribe friend and chatted with him online. Ziska revealed to the agent that he was an

18-year-old high school student and that he had been using GigaTribe for two years. Upon the

execution of the warrant, Ziska initially denied all involvement with child pornography, but after

his parents urged him to be honest, he admitted that he had been downloading child pornography

since 1999, when he was nine years old. The FBI’s search of his computer located 3,384 images

and 185 videos depicting child pornography, including images of sex acts between adults and

minors under twelve years old, and several images of minors who had been tied up.

        Ziska was diagnosed with ADHD when he was in grade school, and was diagnosed with

Asperger’s Syndrome near the time of his arrest. As a child Ziska had poor social skills, could

not interact with children his age, and had difficulty following rules. By high school Ziska had

developed an interest in robotics, computer technology, and electronics, and performed well in

this field.

        In a written statement accepting responsibility for his actions, Ziska indicated that when

he first discovered the material at the age of nine, he thought it must be legal because it was

online. He claims that by the time he realized child pornography was wrong, he had become

addicted to it.



                                               -2-
No. 14-3147
United States of America v. Patrick Ziska
       In March 2012, the Cuyahoga County Sheriff’s Department executed another search

warrant at Ziska’s address, and recovered an estimated 2,000 to 3,000 files that could be child

pornography. Several weeks later, Ziska was indicted in federal court based on the evidence

obtained through the FBI’s 2009 warrant.         Ziska’s federal indictment charged him with

distributing visual depictions of a minors engaged in sexually explicit conduct, in violation of

18 U.S.C. § 2252(a)(2), and with possessing child pornography, in violation of 18 U.S.C.

§ 2252A(a)(5)(B). He pled guilty to both counts without a plea agreement.

       Ziska’s final Presentence Investigation Report (PSR) was filed in January 2014. It

included a base offense level of 22 under USSG §2G2.2(a)(2); a two-level increase under

§2G2.2(b)(2) for material involving a prepubescent minor younger than 12 years old; a five-level

increase under §2G2.2(b)(3)(B) for distributing child pornography with the expectation of

“receipt of a thing of value, but not for pecuniary gain”; a four-level increase under §2G2.2(b)(4)

for material portraying sadistic or masochistic conduct or other depictions of violence; a two-

level increase under §2G2(b)(6) because the offense involved the use of a computer; and a five-

level increase under §2G2.(b)(7)(D) because the offense involved more than 600 images.

       Based on Ziska’s acceptance of responsibility and assistance to the government, the PSR

subtracted three levels from this adjusted offense level of 40, leaving Ziska with a total offense

level of 37, 15 levels above the crime’s base offense level. At the time the PSR was prepared,

Ziska had pled guilty to state court charges brought against him based on the evidence obtained

in the March 2012 search of his home, but had yet to be sentenced for that crime. He was

therefore given one criminal history point under USSG §4A1.1(c), which put him in Criminal

History Category I, the lowest level. USSG Ch.5, Pt.A (Sentencing Table). An offense level 37




                                                -3-
No. 14-3147
United States of America v. Patrick Ziska
combined with Criminal History Category I yields a Guidelines sentencing range of 210-264

months. Id.

           Ziska objected to the offense level calculated in his PSR, arguing that two enhancements

were improper—the five-level increase for distribution with the expectation of receipt of a thing

of value, and the two-level increase for using a computer in the commission of the offense. He

maintains that his total offense level should be 30, which has a corresponding guideline range of

97-121 months. Before sentencing, Ziska filed a sentencing memorandum and attachments

under seal arguing his position, and his counsel raised both arguments during the sentencing

hearing.

           The probation officer supported the five-level increase by including in the PSR the online

chat between Ziska and an FBI agent in which Ziska indicated that he blocked users’ access to

his shared folders when they had nothing to share. The probation officer also noted Ziska’s

objection to the enhancement for computer use, but declined to change the report, saying she

believed the level 37 result was in accord with the intentions of the Sentencing Commission.

           In February 2014, the district court sentenced Ziska to a 180-month term of imprisonment

on Count 1 and a concurrent 120-month term of imprisonment on Count 2, followed by a ten-

year term of supervised release with several conditions, including a restriction on Ziska’s

ownership or possession of camera equipment without the written approval of his probation

officer.      At sentencing, Ziska’s counsel renewed his objections to the two sentencing

enhancements and stressed that a downward variance based on Ziska’s Asperger’s diagnosis

would be appropriate, but did not object to the restrictions placed on his ownership and

possession of photographic equipment during the supervised release period. Final judgment was

entered and this timely appeal followed.



                                                  -4-
No. 14-3147
United States of America v. Patrick Ziska
                                         II. ANALYSIS

A. The Reasonableness of Ziska’s Sentence

        “We review sentences under a deferential abuse-of-discretion standard.” United States v.

Walters, 775 F.3d 778, 781 (6th Cir. 2015) (citing Gall v. United States, 552 U.S. 38, 41 (2007)).

“To determine whether a district court abused its discretion, we look to whether the sentence is

reasonable.” Id. (citing Gall, 552 U.S. at 46). “Sentences must be both procedurally and

substantively reasonable.” Id. (citing Gall, 552 U.S. at 51). Here, Ziska alleges that his sentence

was both procedurally unreasonable and substantively unreasonable. We consider each of these

allegations in turn.

1. Procedural Reasonableness

        “Procedural reasonableness review begins with a robust review of the factors evaluated

and the procedures employed by the district court in reaching its sentencing determination.”

United States v. Cunningham, 669 F.3d 723, 728 (6th Cir. 2012) (internal quotation marks

removed). A district court abuses its sentencing discretion if it commits a significant procedural

error, such as failing to calculate the Sentencing Guidelines range, treating the Guidelines as

mandatory, ignoring the factors listed in 18 U.S.C. § 3553(a), basing the sentence on clearly

erroneous facts, or failing to adequately explain the chosen sentence. Gall, 552 U.S. at 51;

Walters, 775 F.3d at 781. With regard to procedural reasonableness, we review the sentencing

court’s legal conclusions de novo, and its factual findings for clear error. Cunningham, 669 F.3d

at 728. Whether the district court properly applied a sentence enhancement under the Guidelines

is a matter of procedural reasonableness. Walters, 775 F.3d at 781.

        Here, Ziska argues that the district court committed two distinct sentencing-enhancement

errors that amounted to procedural unreasonableness—the two-level increase for using a



                                                -5-
No. 14-3147
United States of America v. Patrick Ziska
computer, and the five-level increase of distributing child pornography for something of value

other than pecuniary gain.

a. The two-level enhancement for use of a computer under USSG §2G2.2(b)(6)

       Ziska argues that the district court’s decision to apply a two-level increase to his offense

level for the use of a computer (1) constitutes impermissible “double counting” because his

charged offense already contemplates the use of a computer to commit it, and (2) is improper

because it applies in almost every case of possession, receipt, or distribution of child

pornography, and therefore fails to achieve a meaningful separation between low-grade offenders

and those who pose a higher threat to the community.

       “Double counting occurs when precisely the same aspect of a defendant’s conduct factors

into his sentence in two separate ways.” Walters, 775 F.3d at 782 (internal quotation marks

removed). “[N]o double counting occurs if the defendant is being punished for distinct aspects

of his conduct.” United States v. Battaglia, 624 F.3d 348, 351 (6th Cir. 2010). Double counting

is permitted where “it appears that Congress or the Sentencing Commission intended to attach

multiple penalties to the same conduct.” Id.

       Here, Ziska’s indictment charged him under 18 U.S.C. § 2252(a)(2), which targets the

receipt or distribution of a visual depiction of a minor engaging in sexually explicit conduct “by

any means including by computer,” and under 18 U.S.C. § 2252A(a)(5)(B), which targets the

possession of child pornography regardless of what medium it is in or whether it had been

transported through the mail, transferred with a computer, or exchanged through other means.

The applicable Sentencing Guideline for both statutes is USSG §2G2.2, which assigns a base

offense level of 22 to § 2252(a)(2) and 18 to § 2252A(a)(5)(B). USSG §2G2.2(a)(1), (a)(2). The

base offense levels listed in §2G2.2(a) do not require that a computer be involved in the



                                               -6-
No. 14-3147
United States of America v. Patrick Ziska
offense—only §2G2.2(b)(6), the two-level computer use enhancement that Ziska argues amounts

to double-counting, requires a showing of computer use.

       Ziska would have violated the statutes under which he was charged—and been subject to

base offense levels of 22 and 18 for those violations—regardless of whether he used a computer.

The two-level enhancement targeted his use of a computer in the commission of the crime, a

distinct aspect of his conduct. Application of the two-level enhancement for computer therefore

does not constitute double counting under Walters and Battaglia.

       We turn now to Ziska’s second argument, that the computer use enhancement should not

apply because virtually every offender uses a computer to commit the crime. This is not a strict

“double counting” argument that focuses on the text of the statutes and Guidelines. Rather, it is

concerned with the practical effect of the Guidelines’ implementation over time: though only a

minority of offenders committed the offense with a computer when the enhancement was first

promulgated, now almost all of them use a computer to do so.1 Based on this shift, defendants

frequently argue that “the enhancement is, for all intents and purposes, part-and-parcel of the

offense.” See, e.g., United States v, Marshall, 870 F. Supp. 2d 489, 494 (N.D. Ohio 2012).

Some district courts have on that basis declined to apply the enhancement. In United States v.

Elmore, for example, we noted that the district court had “removed the two-level enhancement

for use of a computer” though it “agreed that there ‘was a legal basis on that [enhancement].’”

743 F.3d 1068, 1071 (6th Cir. 2014). The district court in Marshall also opted not to apply the

enhancement, cataloguing numerous policy grounds for its decision. 870 F. Supp. 2d at 493-95.



       1
        When the computer-use enhancement was first introduced, only 28% of offenders used
computers. As of 2011, nearly 97% of offenders were using computers. United States v.
Marshall, 870 F. Supp. 2d 489, 494 (N.D. Ohio 2012) (citing Troy Stabenow, A Method for
Careful Study: A Proposal for Reforming the Child Pornography Guidelines, 24 Fed. Sent’g
Rep. 2, 122 (2011)).
                                               -7-
No. 14-3147
United States of America v. Patrick Ziska
       In United States v. Klepper, the district court also declined to apply the PSR-

recommended      computer     enhancement,      but   applied    other    Guidelines-recommended

enhancements. 520 F. App’x 392, 393 (6th Cir. 2013). When the plaintiff appealed to challenge

the other enhancements, we noted that the “district court here plainly recognized its authority to

reject application of the enhancements, as it did with regard to the enhancement for use of a

computer.” Id. We affirmed, holding that “[o]ther courts, including our own, have noted that a

district court may vary from the Guidelines based on a policy disagreement, but it is not required

to do so.” Id.

       Ziska’s argument concerning the application of the computer use enhancement fails

based on this reasoning. “[T]he fact that a district court may disagree with a Guideline for policy

reasons and may reject the Guidelines range because of that disagreement does not mean that the

court must disagree with that Guideline or that it must reject the Guidelines range if it disagrees.”

United States v. Brooks, 628 F.3d 791, 800 (6th Cir. 2011) (emphasis in original); see also

Cunningham, 669 F.3d at 733 (holding that “a district court is entitled to rely on the §2G2.2

enhancements unless it has a reasonable policy basis for not doing so”).                Brooks and

Cunningham are dispositive in the instant case: the district court had the discretion to apply the

Guidelines’ two-level enhancement for computer use.

       District courts may of course choose to exercise their discretion and depart from §2G2.2

on reasonable policy grounds as long as the basis for doing so is adequately explained.

Cunningham, 669 F.3d at 733; see also Kimbrough v. United States, 552 U.S. 85 (2007). It is

counsel’s responsibility to bring pertinent policy considerations such as those raised in the

Sentencing Commission report on the child pornography guidelines to the attention of district

courts when they are applicable. See Walters, 775 F.3d at 787 (White, J., concurring) (referring



                                                -8-
No. 14-3147
United States of America v. Patrick Ziska
to a 2012 Sentencing Commission report that raised policy concerns about the application of the

child pornography guidelines, “Federal Child Pornography Offenses,” United States Sentencing

Commission, available at: http://www.ussc.gov/news/congressional-testimony-and-reports/sex-

offense-topics/report-congress-federal-child-pornography-offenses).      District courts must give

policy-based arguments due consideration once they are raised. This court has the far more

limited role of determining whether a district court abused its discretion when deciding whether

to invoke a policy-based deviation from the suggested Guidelines range.

       Because the district court here made no mechanical error in its application of the

Guidelines, and its decision to invoke the two-level increase for computer use was within its

discretion, we affirm its application of the two-level computer use enhancement to Ziska’s

offense level calculation.

b. The five-level enhancement under USSG §2G2.2(b)(3)(B)

       At sentencing, Ziska raised two arguments challenging his five-level enhancement for

distributing child pornography in exchange for something of value: first, that he used GigaTribe

to obtain child pornography, not to distribute it in exchange for something of value; and second,

that the base-level offense already accounted for the harm attributable to distribution.

       This court has upheld district court decisions finding that sharing child pornography on

peer-to-peer networks such as GigaTribe and LimeWire constitutes distribution. Walters, 775

F.3d at 784-85; United States v. Connor, 521 F. App’x 493, 500 (6th Cir. 2013). Under the

Guidelines, mere distribution of child pornography warrants a two-level enhancement, USSG

§2G2.2(b)(3)(F), but a five-level enhancement may be applied when the defendant has

distributed child pornography “for the receipt, expectation of receipt, of a thing of value, but not

for pecuniary gain,” USSG §2G2.2(b)(3)(B). This enhancement “applies where a defendant



                                                -9-
No. 14-3147
United States of America v. Patrick Ziska
distributes child pornography because he or she has received child pornography or expects to

receive child pornography in return.”       Battaglia, 624 F.3d at 351 (citing USSG §2G2.2,

comment. (n.1) The enhancement does not apply merely because a defendant used a file-sharing

program, but “sophisticated and extensive” use of such a program will weigh in favor of the

enhancement. United States v. Hardin, 437 F. App’x 469, 474 (6th Cir. 2011).

       District courts determine the factual bases for sentencing factors by a preponderance of

the evidence. United States v. Ross, 703 F.3d 856, 884 (6th Cir. 2012). On appeal, this court

reviews the district court’s factual findings under the clear error standard. Battaglia, 624 F.3d at

351.

       Here, the uncontested facts in the PSR contain the following online chat exchange

between Ziska and an FBI agent posing as a fellow consumer of child pornography:

       Agent: i see a lot of ppl on here don’t share anything

       Defendant: you dont seem to have much, thats y, they need to see
       somthin before they give access

       Agent: so i gotta share to get stuff back??

       Defendant: ya

       Agent: makes sense, how do you do it. you boot people who don’t
       share?

       Defendant: i usually put peps who have nothing into a seprate
       area without access to my files untill they explain why they dont
       have anything, but booting them works too.

       Agent: cool. so unless you get something in return, no goodies for
       them? nice.

       Defendant: ohh ya

At sentencing, the district court found that this exchange “says it all” with regard to the

applicability of the enhancement and that Ziska “basically buries himself with that.” R. 56,

                                               -10-
No. 14-3147
United States of America v. Patrick Ziska
PageID 500.     The court held that Ziska’s responses during the chat established, by a

preponderance of the evidence, that he distributed child pornography with the expectation that he

would receive child pornography in return. And because the PSR indicates that the FBI’s

computer search located 3,384 images and 185 videos depicting child pornography on Ziska’s

computer, the district court was within its discretion to conclude that Ziska’s use of GigaTribe

was sufficiently “sophisticated and extensive” to warrant the enhancement.

       Despite Ziska’s argument to the contrary, the five-level enhancement in USSG

§2G2.2(b)(3)(B) does not amount to double-counting under the standard we discuss in Section

II.A.1.a above. Ziska’s base offense level of 22 under §2G2.2(a)(2) can be applied absent child

pornography distribution that amounts to the quid pro quo exchange for something of value

contemplated in the enhancement. The enhancement is not double counting because it does not

punish “precisely the same aspect of a defendant’s conduct” that the base offense level does. See

Walters, 775 F.3d at 782. We therefore affirm application of the enhancement.

2. Substantive Reasonableness

       We next consider “the substantive reasonableness of the sentence imposed under an

abuse-of-discretion standard,” taking into account “the totality of the circumstances, including

the extent of any variance from the Guidelines range.” Gall, 552 U.S. at 51.

       Ziska claims his sentence is substantively unreasonable because the district court failed to

properly weigh the pertinent sentencing factors listed in 18 U.S.C. § 3553(a). He argues that

though § 3553(a) requires courts to consider the “history and characteristics of the defendant”

and an expert report documenting his Asperger’s disorder was submitted, Ziska argues that the

district court failed to fully consider how his Asperger’s disorder “likely impacted his conduct,”




                                               -11-
No. 14-3147
United States of America v. Patrick Ziska
and erred by not granting him a “significant downward variance” on that basis. Appellant’s Br.

20-21.

         A sentence is substantively unreasonable and a remand for resentencing is required if

“the district court select[ed] a sentence arbitrarily, base[d] the sentence on impermissible factors,

fail[ed] to consider relevant sentencing factors, or [gave] an unreasonable amount of weight to

any pertinent factor.”      Elmore, 743 F.3d at 1072 (internal quotation marks removed).

“‘Regardless of whether the sentence imposed is inside or outside the Guidelines range,’ an

appellate court reviews for reasonableness under the same abuse-of-discretion standard.” Id.

(quoting Gall, 552 U.S. at 51).

         Ziska’s medical expert report submitted prior to sentencing explains that Asperger’s

disorder is “characterized by severe and sustained impairment in social interaction and the

development of restricted, repetitive patterns of behavior, interests, and activities” and that a

typical manifestation of the condition is the “development of encompassing preoccupations

about a circumscribed topic or interest about which the individual can amass a great deal of facts

and information. These interests and activities are pursued with great intensity often to the

exclusion of other activities.”     At sentencing Ziska’s attorney argued that his Asperger’s

diagnosis was a factor that should weigh in favor of a downward variance from the guideline

range.

         At sentencing, the district court walked through each of the § 3553(a) factors in turn and

applied them to Ziska’s case. The court referenced Ziska’s Asperger’s and ADHD diagnoses,

but, having earlier noted Ziska’s grades in mechanical engineering, stated that Ziska “did not

appear to suffer from any diminished capacity. Quite the contrary.” The court also noted the

seriousness of Ziska’s offense and that the expert report referenced the high risk of recidivism



                                                -12-
No. 14-3147
United States of America v. Patrick Ziska
for non-contact offenses because Ziska had failed to fully admit to his condition. The court

further commented that though Ziska was very young when he started downloading child

pornography, it had to think about the victims of pornography, too. Acknowledging that the

Guidelines are very high, the court expressed understanding for why some courts looked with

disfavor on them, but concluded that Congress intended such sentences due to the harm

pornography causes to children and families.

        After taking note of Ziska’s Asperger’s and ADHD diagnoses and considering the

§ 3553(a) factors, the district court weighed the mitigating circumstances Ziska presented against

§ 3553(a)’s requirement that the sentence reflect the seriousness of Ziska’s offense and the need

to protect the public. The court ultimately decided to vary downward from the Guidelines range

by 30 months, rather than granting the larger variance that Ziska had proposed. Reasonable

minds can disagree about the district court’s sentencing here, but because the district court

weighed the § 3553(a) factors with care, explained its reasoning, and came to a conclusion that

flowed from its analysis, we find that the court did not abuse its discretion.

B. The Post-Release Restriction on Photography Equipment

        In addition to 180 months in custody, the district court sentenced Ziska to a ten-year

period of supervised release and imposed several conditions on that release, including the

instruction that Ziska “will not own or possess any type of camera, photographic device and/or

equipment, including video recording equipment, without the written approval of the probation

officer.”   Ziska objects to this condition on appeal.       Because his counsel was given the

opportunity to object to it at sentencing, yet voiced no objection at that time, we review for plain

error. United States v. Inman, 666 F.3d 1001, 1003 (6th Cir. 2012).




                                                -13-
No. 14-3147
United States of America v. Patrick Ziska
       To meet the plain error standard or review, Ziska must show that the imposition of this

sentencing condition was “(1) an error, (2) that was obvious or clear, (3) that affected his

substantial rights, and (4) that affected the fairness, integrity, or public reputation of his judicial

proceedings. Id. at 1003-04. When a challenge to supervised release is properly raised below,

on appeal we consider whether the district court abused its discretion in imposing special

conditions. Id. (citing United States v. Brogdon, 503 F.3d 555, 563 (6th Cir. 2007)). Under the

abuse of discretion standard, we first address the procedural component by determining “whether

the district court adequately stated in open court at the time of sentencing ‘its rationale for

mandating special conditions of supervised release.’” Brogdon, 503 F.3d at 563 (quoting United

States v. Carter, 463 F.3d 526, 529 (6th Cir. 2006)). Next, we address the substantive component

by determining “whether the ‘condition of supervised release is reasonably related to the dual

goals of probation, the rehabilitation of the defendant and the protection of the public.’” Id.

(quoting United States v. Ritter, 118 F.3d 502, 504 (6th Cir. 1997)). “The condition must

reasonably relate to the nature of the offense and the history and characteristics of the defendant,

and ‘involve[ ] no greater deprivation of liberty than is reasonably necessary’ to serve the goals

of deterrence, protecting the public, and rehabilitating the defendant.” Inman, 666 F.3d at 1004

(quoting 18 U.S.C. § 3583(d)(1)-(2); Brogdon, 503 F.3d at 564). The condition must also be

consistent with pertinent policy statements issued by the United States Sentencing Commission.

Id. (citing 18 U.S.C. § 3583(d)(3)). This analysis is also helpful in determining whether plain

error occurred in this case. See id.

       The district court offered no specific rationale for the imposition of the special conditions

of supervised release. However, “a sentencing court’s failure to expressly explain its reasons for

exacting a particular special condition of supervised release will be deemed harmless error if the



                                                 -14-
No. 14-3147
United States of America v. Patrick Ziska
supporting reasons are evident on the overall record, and the subject special condition is related

to the dual major purposes of probation, namely rehabilitation of the offender and enhancement

of public safety.” Brogdon, 503 F.3d at 564.

       Here, the record fails to provide a clear window into the court’s supporting reasons for

the condition, but it offers some obvious clues. Though the court noted that Ziska had not

touched a child, and nothing in the record indicates that Ziska had previously attempted to

photograph children, it referenced the doctor’s warning of a high likelihood of recidivism. The

record also establishes Ziska’s significant interest in images of children.

        With regard to the substantive component, we find that though Ziska’s offense did not

involve his use of photographic equipment, his collection of thousands of images of children

makes the restriction on his ownership of photography equipment reasonably related to his

rehabilitation and the protection of the public.       We have voiced our skepticism about the

appropriateness of conditions on supervised release that amount to categorical bans on a

defendant’s access to photo and video equipment, a defendant’s ability to rent a post office box

or a storage unit, and the defendant’s consumption of alcohol (where nothing in the record

indicated that the defendant had a history of substance abuse). Inman, 666 F.3d at 1005. As we

noted in Inman, a ban on photo and video equipment is concerning in a world where virtually

every mobile phone contains a camera, and there is a possibility that the defendant would want to

use a camera in connection with legitimate family or employment activities. See id. Here, our

concern is diminished to some extent because rather than imposing a blanket restriction on

Ziska’s use of photography equipment, the district court imposed the less onerous requirement

that he obtain the permission of his probation officer before owning or possessing it. It was not

an abuse of discretion to determine that case-by-case probation officer approval advances the



                                                -15-
No. 14-3147
United States of America v. Patrick Ziska
goals of deterrence, public protection, and rehabilitation without unduly burdening Ziska’s

liberty.

           The restriction on photography equipment satisfied the substantive requirements for a

supervised release condition. The district court did not state its reasons for this condition and the

record evidence addressing the procedural prong is admittedly thin, but our review is only for

plain error. We are not convinced that the court’s procedural shortcomings amount to an

“obvious error . . . that affected the fairness, integrity, or public reputation” of the judicial

proceedings, as would be required for a finding of plain error. Accordingly, we affirm the

district court’s imposition of the post-release condition on Ziska.

                                        III. CONCLUSION

           For the reasons stated above, we AFFIRM the district court’s sentencing of Ziska in all

respects.




                                                -16-
