          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                FILED
                                                                   May 1, 2009
                                No. 08-30946
                              Summary Calendar                Charles R. Fulbruge III
                                                                      Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee
v.

FRED DANIEL MILLER

                                            Defendant-Appellant


                 Appeal from the United States District Court
                     for the Middle District of Louisiana
                           USDC No. 3:06-CR-160-1


Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
      Fred Daniel Miller appeals the sentence imposed by the district court
following the revocation of his supervised release. He argues that the district
court abused its discretion in imposing special conditions of supervised release
that require him to undergo psychosexual evaluation and potential treatment
and which restrict his ability to have contact with children under the age of 18.
Miller contends that the special conditions have no reasonable relationship to his
underlying offense of conviction, i.e., wire fraud, and that there is no evidence



      *
      Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5 TH C IR. R. 47.5.4.
                                  No. 08-30946

that he has a propensity to commit future sexual offenses. He asserts that the
special conditions are not reasonably related to the sentencing factors set forth
in 18 U.S.C. § 3583(d), and involve an unreasonable deprivation of liberty.
      This court reviews the imposition of discretionary conditions of supervised
release for abuse of discretion. United States v. Ferguson, 369 F.3d 847, 852 (5th
Cir. 2004). “A district court abuses its discretion if it bases its decision on an
error of law or a clearly erroneous assessment of the evidence.” United States
v. Castillo, 430 F.3d 230, 238 (5th Cir. 2005) (internal quotation marks and
citation omitted). “A factual finding is not clearly erroneous if it is plausible in
light of the record read as a whole.” United States v. Lopez-Urbina, 434 F.3d
750, 766-67 (5th Cir. 2005).
      A district court may impose any condition of supervised release “it
considers to be appropriate” so long as certain requirements are met. § 3583(d).
The condition must be “reasonably related” to one of the following (1) the nature
and characteristics of the offense and the defendant, (2) the deterrence of
criminal conduct, (3) the protection of the public from any further crimes of the
defendant, and (4) the defendant’s correctional needs. § 3583(d)(1); 18 U.S.C.
§ 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D). However, the condition cannot impose
any “greater deprivation of liberty than is reasonably necessary” to promote
deterrence, protect the public from the defendant, and advance the defendant’s
correctional needs. See §§ 3583(d)(2), 3553(a)(2)(B), (a)(2)(C), (a)(2)(D). The
condition also must be “consistent with any pertinent policy statements issued
by the Sentencing Commission.” § 3583(d)(3).
      “A district court may impose sex-offender related special conditions when
the underlying conviction was for a non-sexual offense under certain
circumstances.” United States v. Deleon, 280 F. App’x 348, 351 (5th Cir. 2008),




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cert. denied, 2009 WL 425156 (Feb. 23, 2009) (No. 08-8207).1 A court also may
consider the defendant’s prior criminal behavior even where the prior criminal
conduct did not lead to a conviction if that information was derived from a
reliable source. Id. A presentence report (PSR) generally bears sufficient indicia
of reliability to be considered as evidence by a sentencing judge when making a
factual determination. See United States v. Rome, 207 F.3d 251, 254 (5th Cir.
2000). When a district court relies on information in a PSR as evidence, “the
defendant bears the burden of demonstrating that the information is unreliable
or untrue.” Id.
      In the instant case, the PSR identified that Miller previously was
convicted of a child sex offense and more recently was arrested for loitering for
sex from a person under the age of 18. Miller did not object to the PSR’s
characterization of his prior sex offense or present rebuttal evidence to establish
that his recent arrest did not involve sexual conduct. Because Miller failed to
show that the PSR was unreliable or untrue, the district court was entitled to
rely upon the PSR’s depiction of Miller’s past criminal behavior. Rome, 207 F.3d
at 254. The record therefore contains sufficient evidence that Miller previously
committed a sexual offense, and Miller’s past conduct is an adequate basis for
the imposition of sex-offender special conditions. Deleon, 280 F. App’x at 351.
Thus, Miller has not shown that the district court wrongly imposed sex-offender
special conditions following the revocation of his supervised release for his
underlying conviction of wire fraud.
      Furthermore, the particular special conditions that the district court opted
to impose are reasonably related to the appropriate sentencing factors and do not
involve a greater deprivation of liberty than is reasonably necessary to achieve
the policy objectives of § 3583(d)(2). The conditions specifically are intended to

      1
        Although an unpublished opinion issued after January 1, 1996 is not
controlling precedent, it may be considered as persuasive authority. Ballard v.
Burton, 444 F.3d 391, 401 and n.7 (5th Cir. 2006).

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address Miller’s history of sex offenses and the need to protect the public from
further criminal activity. The conditions also to serve Miller’s correctional needs
and act to deter potential recidivism. Moreover, the conditions are properly
circumscribed to prevent an unreasonable imposition on Miller’s liberty
interests. This court previously has upheld more onerous restrictions than those
at issue in the instant case. United States v. Paul, 274 F.3d 155, 164-65 (5th Cir.
2001).
      The judgment of the district court is AFFIRMED.




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