                                     PUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                     No. 18-4575


UNITED STATES OF AMERICA,

            Plaintiff – Appellee,

      v.

JAMES DANIEL ARBAUGH,

            Defendant – Appellant.


Appeal from the United States District Court for the Western District of Virginia, at
Harrisonburg. Elizabeth Kay Dillon, District Judge. (5:17-cr-00025-EKD-1)


Argued: December 10, 2019                                Decided: February 20, 2020


Before KING, AGEE and RICHARDSON, Circuit Judges.


Affirmed in part and vacated and remanded in part by published opinion. Judge Agee
wrote the opinion, in which Judge King and Judge Richardson joined.


ARGUED: Erin Margaret Trodden, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Harrisonburg, Virginia, for Appellant. Laura Day Rottenborn, OFFICE OF THE UNITED
STATES ATTORNEY, Roanoke, Virginia, for Appellee. ON BRIEF: Frederick T.
Heblich, Jr., Interim Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charlottesville, Virginia, for Appellant. Thomas T. Cullen, United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for
Appellee.
AGEE, Circuit Judge:

       James Daniel Arbaugh appeals the procedural and substantive reasonableness of his

sentence for engaging in illicit sexual conduct with a minor in a foreign country, in

violation of 18 U.S.C. § 2423(c) and (e). On review, we conclude the district court did not

err in applying a 2-offense-level enhancement to the Guidelines calculation based on undue

influence resulting from the age disparity between Arbaugh and his victim under U.S.S.G.

§ 2G1.3(b)(2). We further conclude that the court adequately explained the basis for

Arbaugh’s terms of imprisonment and supervised release and that its decision to impose a

276-month term of imprisonment was substantively reasonable. But we hold that the

district court procedurally erred by failing to explain the reasons for imposing four

computer-related special conditions of release. Accordingly, we affirm the judgment and

sentence of the district court except for the four challenged conditions of supervised

release, which we vacate and remand for partial resentencing.



                                            I.

      Arbaugh, a resident of Virginia, spent extended time in Haiti ostensibly for

missionary work on behalf of his church. Over a period of several years, he also sexually

abused approximately two dozen Haitian minor children. After a woman from Arbaugh’s

church witnessed him engaged in something “very disturbing” while they were together in

Haiti, the woman’s husband confronted Arbaugh via email. J.A. 24. In response, Arbaugh

returned to the United States and began meeting with a counselor with the support of his

church. At first Arbaugh disclosed only that he had engaged in homosexual conduct, but

                                            2
eventually he admitted to the counselor that he had sexually abused minor children and the

counselor then reported him to law enforcement. 1

       Over the course of three separate interviews with law enforcement, Arbaugh

described what he had done and provided them with names, locations, and dates. Although

he had a return trip to Haiti scheduled, Arbaugh voluntarily surrendered his passport. He

also consented to a search of his computer, which disclosed no child pornography, though

the photographs of his time in Haiti included photos of his victims.

       In December 2017, Arbaugh was indicted in the U.S. District Court for the Western

District of Virginia on one count of knowingly traveling in foreign commerce to engage in

illicit sexual conduct with “Minor Victim #1,” in violation of 18 U.S.C. § 2423(c) and (e).

Minor Victim #1 is the son of a pastor in Haiti that Arbaugh had known for years. When

his victim was five or six years old, Arbaugh touched the minor’s genitals with his hands

“and maybe his mouth.” J.A. 249.

       Arbaugh pleaded guilty without the benefit of a written plea agreement and the

district court ordered the preparation of a pre-sentence report (“PSR”).

       At sentencing, Arbaugh objected to the PSR’s inclusion of a two-offense-level

enhancement for undue influence of a minor under U.S.S.G. § 2G1.3(b)(2)(B), arguing that



       1The record indicates that Arbaugh was not initially forthcoming with either his
church or his counselor regarding the nature or scope of his behavior. He eventually
admitted to a church leader that he had molested a minor child in Haiti, which led the
church leadership to contact an attorney to determine whether anyone at the church was
required to report Arbaugh’s conduct to law enforcement. At the same time, Arbaugh’s
counselor confronted him about whether he had committed sexual acts with minors and
Arbaugh admitted that he had.
                                             3
his victim’s age was already accounted for by other aspects of his Guidelines calculation

and that imposing this enhancement based solely on an age disparity resulted in

impermissible double counting. The district court overruled that objection, noting that

double-counting is allowed under the Guidelines unless expressly prohibited and “the

enhancement looks not just at the age of the minor victim, but at the relative ages of the

victim and the defendant.” J.A. 253. After ruling on other aspects of the Guidelines

calculation not at issue on appeal, the district court determined Arbaugh’s offense level to

be 38, which, when coupled with his criminal history category of I, resulted in a Guidelines

range of 235 to 295 months’ imprisonment.

       The district court then heard the parties’ arguments about an appropriate term of

imprisonment under 18 U.S.C. § 3553(a). The Government argued that Arbaugh’s offense

conduct, total number of victims over so many years under the guise of missionary work,

and equivocating statements about whether he recognized the true nature of his crimes all

warranted an upward variant sentence of 360 months’ imprisonment (the statutory

maximum). Arbaugh argued that the only reason the Government knew of his crimes was

because he had come forward and admitted them, meaning that he should be credited for

his disclosure of a crime. In addition, he argued that despite his crimes, he had done a

tremendous amount of positive work in Haiti, which should be considered alongside his

criminal acts. These circumstances, in his view, warranted a downward variant sentence.

       The district court sentenced Arbaugh to a term of 276 months’ imprisonment,

slightly higher than the mid-range of the Guidelines calculation, and it imposed the

Guidelines-recommended term of lifetime supervised release. In explaining the sentence,

                                             4
the district court pointed to, on the one hand, the heinousness of Arbaugh’s crime, his

targeting “the most vulnerable children,” and his failure to be fully forthcoming regarding

the full scope of his conduct. J.A. 239. On the other hand, the court determined that

Arbaugh’s offense was not the “worst of the worst,” pointing to the lack of threats or

violence and observing that Arbaugh had cooperated with law enforcement. J.A. 241. The

district court also imposed various special conditions of release, including certain

conditions requiring Arbaugh to submit to warrantless searches of his computer and related

devices and prohibiting him from owning encryption materials.

       Arbaugh noted a timely appeal, and the Court has jurisdiction under 28 U.S.C. §

1291 and 18 U.S.C. § 3742(a).



                                             II.

       Arbaugh raises five challenges to his sentence on appeal, asserting: (1) the district

court committed procedural error by including a two-level enhancement based on age

disparity under § 2G1.3(b)(2); (2) it failed to adequately address the need to avoid

unwarranted sentence disparities when explaining its sentence under § 3553(a); (3) it

imposed a substantively unreasonable term of 276 months’ imprisonment; (4) it failed to

adequately explain its reasons for imposing a lifetime term of supervised release; and (5)

it failed to adequately explain why it imposed four restrictions related to computer usage

as special conditions of supervised release. We reject all but the last argument.

       The Court “reviews a sentence for reasonableness,” United States v. Diosdado-Star,

630 F.3d 359, 363 (4th Cir. 2011), “under a deferential abuse-of-discretion standard,” Gall

                                              5
v. United States, 552 U.S. 38, 40 (2007). In undertaking this review, the Court first

considers whether the district court committed a “significant procedural error, such as . . .

improperly calculating[] the Guidelines range, . . . failing to consider the § 3553(a) factors,

. . . or failing to adequately explain the chosen sentence.” Id. at 51. If the Court “find[s] no

significant procedural error, [it] then consider[s] the substantive reasonableness of the

sentence imposed.” Diosdado-Star, 630 F.3d at 363 (internal quotation marks omitted).

This standard applies when considering a defendant’s term of imprisonment, his term of

supervised release, and any condition of that release. United States v. Armel, 585 F.3d 182,

186 (4th Cir. 2009).

                                              A.

       Arbaugh first asserts the district court erred in imposing a two-level enhancement

under § 2G1.3(b)(2)(B), which applies if a participant “unduly influenced a minor to

engage in prohibited sexual conduct.” § 2G1.3(b)(2)(B). The commentary notes to that

provision state, in relevant part, that “there shall be a rebuttable presumption that

subsection (b)(2)(B) applies” “[i]n a case in which a participant is at least 10 years older

than the minor.” Id. cmt. n.3. And the notes explain that under these circumstances, “some

degree of undue influence can be presumed because of the substantial difference in age

between the participant and the minor.” Id.

       Arbaugh contends that his victim’s age was already accounted for in calculating his

Guidelines range because the calculation started with § 2G1.3’s base offense level, which

applies only to sex offenses involving minors, and included § 2G1.3(b)(5)’s enhancement

for conduct involving a minor under the age of twelve. Thus, Arbaugh asserts that applying

                                               6
a § 2G1.3(b)(2)(B) additional enhancement based on age disparity would constitute

double-counting of the victim’s age. While Arbaugh acknowledges that double-counting

is generally permitted under the Guidelines, he contends it is not permitted in this

circumstance because it results from commentary that “expanded the scope of the

guideline” to encompass an age-related factor. Opening Br. 9. He also contends that the

Guideline commentary’s rebuttable presumption contradicts U.S.S.G.            § 6A1.3’s

evidentiary standard by allowing the court to impose an undue-influence enhancement

based on no evidence that an undue influence existed. Lastly, he contends the rebuttable

presumption improperly shifts the burden of proving the sentencing enhancement to the

defendant despite the Court’s instruction that the Government bears the burden of proving

Guidelines-based sentencing enhancements.

      When a defendant challenges the district court’s inclusion of a sentencing

enhancement to the Guideline calculation, we review the district court’s factual findings

for clear error and its legal conclusions de novo. United States v. Cox, 744 F.3d 305, 308

(4th Cir. 2014). At sentencing, the Government had to show by a preponderance of the

evidence that the Guidelines enhancement applied. United States v. Blauvelt, 638 F.3d 281,

293 (4th Cir. 2011).

      We conclude that in calculating Arbaugh’s Guidelines range, the district court did

not err by including the § 2G1.3(b)(2)(B) enhancement because the Guidelines did not

“double count” the victim’s age and any overlap in age considerations was permitted. So-

called “double counting” occurs “when a provision of the Guidelines is applied to increase

punishment on the basis of a consideration that has been accounted for by application of

                                            7
another Guideline provision or by application of a statute.” United States v. Reevey, 364

F.3d 151, 158 (4th Cir. 2004). By its plain terms, § 2G1.3(b)(2)(B) focuses on a different

aggravating factor (undue influence) than § 2G1.3 (minor victims) or § 2G1.3(b)(5)’s

enhancement (minor victim under the age of twelve). As such, subsection (b)(2)(B) does

not “consider” the same factor as these other Guideline provisions. To be sure, the

commentary to subsection (b)(2)(B) does bring age into the analysis, but it does so for a

different reason and in a different way than the other Guideline provisions. Rather than

focusing only on the victim’s age—as the other provisions do—the commentary relies on

the age disparity between the victim and the perpetrator of the offense. And it does so

because it is reasonable to presume that, in the absence of evidence to the contrary, “some

degree of undue influence” exists whenever an age disparity of at least ten years exists

between a minor and another participant in the prohibited sexual conduct. § 2G1.3(b)(2)(B)

cmt. n.3. In sum, neither the text of § 2G1.3(b)(2)(B) nor the commentary’s rebuttable

presumption consider the same factor already accounted for by another Guideline

provision, so double counting did not occur.

       But even if some overlap exists, the Guidelines generally permit double counting

except where they “expressly prohibit it.” Reevey, 364 F.3d at 158. Nothing in the

Guidelines expressly prohibits enhancing a defendant’s offense level based on both

§ 2G1.3(b)(2)(B)’s rebuttable presumption and other provisions of § 2G1.3. Moreover, the

relevant commentary does not expand the scope of § 2G1.3(b)(2)(B). Instead, it explains a

circumstance in which the text of the provision operates (subject to evidence to the

contrary).

                                               8
       Arbaugh’s argument that § 6A1.3 expressly prohibits § 2G1.3(b)(2)(B)’s rebuttable

presumption fares no better. Section 6A1.3 states that when a fact is disputed at sentencing,

parties should be given the opportunity to present information and the court can resolve

disputes by considering any “relevant information” without having to follow the Federal

Rules of Evidence, “provided that the information has sufficient indicia of reliability to

support its probable accuracy.” § 6A1.3. Nothing in § 6A1.3 prohibits the fact of age

disparity from constituting relevant and reliable evidence that undue influence exists. And,

in an appropriate case, where the defendant proffered evidence to rebut the presumption,

§ 6A1.3 would govern the district court’s determination of whether the disputed fact of

undue influence exists. But § 6A1.3 does not contradict the rebuttable presumption in

§ 2G1.3(b)(2)(B)’s commentary nor does it expressly prohibit the court from applying

(b)(2)(B)’s enhancement alongside other § 2G1.3 subsections.

       The rebuttable presumption in § 2G1.3’s commentary notes does not improperly

shift the burden of proof away from the Government, which always bore the burden of

proving, by a preponderance of the evidence, any facts supporting the district court’s

finding that “undue influence” over a minor occurred as part of Arbaugh’s offense. See

United States v. Jones, 31 F.3d 1304, 1316 (4th Cir. 1994). That burden never shifted.

       The Government sought to satisfy its burden at sentencing by offering the

undisputed fact that when Arbaugh was 30 years old, he engaged in sexual activity with a

victim who was five or six years old. That evidence of a more-than-two-decade age

disparity would support the district court’s finding of undue influence even apart from the

commentary’s rebuttable presumption. Regardless, the commentary similarly recognizes

                                             9
the reasonable conclusion that, absent evidence to the contrary, evidence of at least a ten-

year age disparity serves as evidence that “some degree of undue influence” existed.

§ 2G1.3(b)(2)(B) cmt. n.3. Allowing         defendants   the opportunity to rebut that

presumption—something Arbaugh did not attempt to do in this case—did not relieve the

Government of its ultimate burden. 2

                                             B.

       Arbaugh next contends the district court failed to adequately address how its 276-

month term of imprisonment satisfies § 3553(a)’s goal of “avoid[ing] unwarranted sentence

disparities among defendants with similar records who have been found guilty of similar

conduct.” 18 U.S.C. § 3553(a)(6). Specifically, he contends the district court failed to

adequately respond to Arbaugh’s non-frivolous contention that he should be sentenced to

a lower term of imprisonment because his conduct was not as severe as the conduct at issue

in United States v. Bollinger, 798 F.3d 201 (4th Cir. 2015), as well as several other out-of-

circuit cases involving the same offense.

       When a defendant offers non-frivolous reasons for imposing a sentence outside the

Guidelines range, “a district judge should address the party’s arguments and explain why

he has rejected those arguments.” United States v. Carter, 564 F.3d 325, 328 (4th Cir.



       2In a footnote, Arbaugh contends that shifting the burden to him violated his due
process and jury trial rights under the Fifth and Sixth Amendments, respectively. We do
not ordinarily entertain arguments made solely in a footnote because they lack the
development required by Federal Rule of Appellate Procedure 28, and we decline to do so
here. See Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 607 (4th Cir. 2009)
(holding that the appellant waived an argument raised only in a footnote in the opening
brief).
                                             10
2009) (internal quotation marks omitted). But this admonition focuses on the whole of a

defendant’s argument and does not require the court to address every argument a defendant

makes, as we have held that district courts need not “robotically tick through § 3553(a)’s

every subsection.” United States v. Powell, 650 F.3d 388, 395 (4th Cir. 2011) (internal

quotation marks omitted). Instead, “[t]he adequacy of the sentencing court’s explanation

depends on the complexity of each case . . . [and] [t]he appropriateness of brevity or length,

conciseness or detail, when to write, what to say, depends upon the circumstances.” United

States v. Blue, 877 F.3d 513, 518 (4th Cir. 2017) (internal quotation marks omitted). At

bottom, we look to whether the sentencing court has said “enough to satisfy” us that the

court “has considered the parties’ arguments and has a reasoned basis for exercising [its]

own legal decision-making authority.” Id. (internal quotation marks omitted). And in a

routine case, where the district court imposes a within-Guidelines sentence, “the

explanation need not be elaborate or lengthy.” United States v. Hernandez, 603 F.3d 267,

271 (4th Cir. 2010).

       On review, we can confidently state that the district court considered Arbaugh’s

argument in favor of a below-Guidelines sentence and imposed an individualized sentence

tailored to Arbaugh’s offense. For one thing, we rejected a nearly identical argument to the

one Arbaugh advances for reasons that are also applicable in this case in United States v.

Allmendinger, 706 F.3d 330 (4th Cir. 2013). That defendant argued his sentence was

procedurally unreasonable because the district court “failed to address Allmendinger’s

argument that his sentence created an unwarranted disparity with those of similarly situated

defendants.” Id. at 343. We rejected this argument based on the general proposition that

                                             11
although the district court must explain its reasons for choosing a particular sentence in

sufficient detail to assure the appellate court that it provided an individualized assessment

of the case before it, it is not required to “discuss each § 3553(a) factor extensively, but

need only provide a rationale tailored to the particular case at hand and adequate to permit

meaningful appellate review.” Id. (internal quotation marks omitted). We observed that

before sentencing Allmendinger the district court “heard extensive argument” from both

parties and provided a substantive “explanation for the sentence imposed,” which “left no

doubt regarding the court’s reasons for selecting the particular sentence that it did.” Id.

Therefore, we held that no procedural error occurred even though the court had not

specifically addressed § 3553(a)(6)’s need to avoid unwarranted sentencing disparities. Id.

       Several factors particular to Arbaugh’s sentencing hearing cause us to reach the

same conclusion here. As in Allmendinger, the district court heard extensive argument on

the § 3553(a) factors and provided a substantial explanation for its sentencing decision that

allows us to review the reasonableness of its decision. That satisfied the district court’s

duty to provide an individualized assessment of the § 3553(a) factors that permits our

review. What’s more, although the court did not expound on the need to avoid unwarranted

sentencing disparities, it did not need to do so given the arguments Arbaugh had made to

the court regarding other cases. Specifically, Arbaugh cited Bollinger and the other cases

to argue that he should not be sentenced to the 300-month statutory maximum (as the

Government was urging). Arbaugh did not make any specific or detailed argument about

how these cases supported his view that he should receive a below-Guidelines sentence.

Based on the actual arguments Arbaugh had made to it, the court had nothing to explain to

                                             12
him—he asked the court to consider the need to avoid unwarranted sentencing disparities

that would arise had it imposed a 300-month sentence and the court did not impose a 300-

month sentence. Further, we note that Bollinger does not support Arbaugh’s new argument

that the district court needed to explain how its sentence avoided unwarranted sentencing

disparities because that defendant received a sentence two years higher than Arbaugh’s

sentence. There is simply no substance to Arbaugh’s contention that the district court

needed to “address unwarranted sentencing disparities” by explaining why a defendant

with purportedly more egregious conduct under the same statute of conviction was

sentenced to a longer term of imprisonment than he was. Lastly, we note that although the

district court did not separately discuss § 3553(a)(6) in announcing its sentence, it

mentioned that factor was part of its sentencing decision and it clearly knew Bollinger well

and engaged Arbaugh’s counsel in detailed dialogue about how that case operated as a

comparator earlier in the sentencing hearing.

       In sum, the district court did not commit reversible procedural error by failing to

address specifically how its sentence accomplished the objective of avoiding unwarranted

sentencing disparities.

                                            C.

       Arbaugh next argues his 276-month term of imprisonment is substantively

unreasonable because it is longer than the amount of time necessary to serve the purposes

of § 3553(a)(2), including affording adequate deterrence and protecting the public from

further crimes. In particular, he asserts that a sentence of this length will discourage

individuals from coming forward and honestly disclosing their criminal conduct. He

                                            13
contends that the district court failed to credit him “for disclosing to law enforcement a

crime that would not otherwise have been discovered,” let alone prosecuted. Opening Br.

17. And Arbaugh suggests that his lengthy, mid-Guidelines sentence will not “deter[]

others from engaging in sexual misconduct abroad,” but instead will encourage

concealment and dishonesty. Opening Br. 19.

       When considering the substantive reasonableness of a prison term, we “examine[]

the totality of the circumstances to see whether the sentencing court abused its discretion

in concluding that the sentence it chose satisfied the standards set forth in § 3553(a).”

United States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010). And in Rita v.

United States, 551 U.S. 338 (2007), the Supreme Court “held that an appellate court is

allowed to presume that a district court’s chosen sentence is substantively reasonable if it

is within a correctly calculated Guidelines range.” Mendoza-Mendoza, 597 F.3d at 216

(citing to Rita, 551 U.S. at 351).

       Here, it was reasonable for the district court to impose the term of 276 months’

imprisonment. The district court discussed the heinous nature of Arbaugh’s offense

conduct, which involved sexually assaulting a boy only five or six years old. In addition,

the court noted that the conviction was just one incident of many because Arbaugh had

sexually assaulted a number of minor boys over the course of many years in ways that

“involved some scheming and planning” and grooming of his victims, who were “the most

vulnerable children” given his role in their families and communities. J.A. 239. It

concerned the court that Arbaugh had previously expressed his belief that “the boys

appreciated [his acts] and he wanted to show them love,” and that he had attempted to

                                            14
justify his conduct by suggesting that “some of his criminal conduct was acceptable in

Haitian culture.” J.A. 240. Further, the court considered mitigating factors in deciding what

sentence to impose, specifically expressing its belief that Arbaugh did not deserve the

statutory maximum because he had cooperated with law enforcement, indicated that he

wanted his victims to get help, and “significantly helped some people in Haiti,” and no

evidence existed to suggest that he had threatened any of his victims. J.A. 241. These

comments—and the court’s explanation as a whole—confirm the appropriateness of its

sentence under the § 3553(a) rubric and an appropriate exercise of discretion in weighing

the factors involved. See Jeffery, 631 F.3d at 679.

       Lastly, we address a fundamental misunderstanding contained within Arbaugh’s

argument that other criminals will be deterred from cooperating with law enforcement

because he received such a lengthy sentence. In so arguing, Arbaugh misapprehends §

3553(a)(2)(B), which requires courts to consider “the need for the sentence imposed . . . to

afford adequate deterrence to criminal conduct” as part of the sentencing decision. Arbaugh

argues on appeal that individuals who have already engaged in criminal conduct will be

deterred from coming forward if they fear facing lengthy terms of imprisonment, so the

district court should have imposed a lower sentence. That’s plainly not what the factor

entails, which is to deter individuals from engaging in criminal conduct in the first instance.

                                              D.

       Next, Arbaugh asks us to vacate and remand his sentence of lifetime supervised

release, asserting the district court failed to adequately explain the basis for a lifetime—as

opposed to a shorter—term. Because Arbaugh’s offense involved a sex crime with a minor

                                              15
victim, he was subject to a statutory mandatory minimum of five years’ supervised release

and a maximum term of life. 18 U.S.C. § 3583(k). The Sentencing Guidelines set the same

range, with the associated policy statement recommending that sex offenders receive the

statutory maximum term of lifetime supervised release. U.S.S.G. § 5D1.2(b)(2) (Policy

Statement). In deciding the length of a term of supervised release, district courts must

consider many of the same § 3553(a) factors they consider in deciding a term of

imprisonment. See 18 U.S.C. § 3583(c) (requiring courts to consider the factors contained

in § 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7)).

       By arguing that his request for a five-year term of supervised release required the

district court to separately and directly address why it was imposing lifetime supervised

release, Arbaugh ignores the context of what he argued in the district court and how the

district court carried out its sentencing duties. Supervised release was mentioned a handful

of times by the parties and the district court and it was not the focal point of any extended

discussion. For example, in his briefing to the district court, Arbaugh argued that no term

of imprisonment was necessary and that a longer term of supervised release could

accomplish the same objectives. During the hearing, as part of his overall sentence request,

Arbaugh asked the district court to impose “a period of supervised release of five years,”

J.A. 225, but he did not make any separate § 3553(a) arguments related to supervised

release or why a five-year term was appropriate.

       The district court did the same thing, announcing at the outset what Arbaugh’s terms

of imprisonment and supervised release would be and then addressing holistically how the

§ 3553(a) factors applied to his case. The court rejected Arbaugh’s contention that

                                               16
supervised release alone would be an adequate sentence because it found that a substantial

term of imprisonment was appropriate. Lastly, at the conclusion of its announcement of

Arbaugh’s sentence, the district court asked the parties if either had “any objection to the

procedure by which the Court determined the sentence” and both parties indicated they had

no objections. J.A. 241.

       Reading the record and the district court’s explanation for its sentence as a whole,

we readily conclude the district court did not commit procedural error in failing to more

specifically explain the basis for a lifetime supervised release sentence. As discussed in the

context of a term of imprisonment, “[w]hen rendering a sentence, the district court must

make an individualized assessment based on the facts presented,” applying “the relevant

§ 3553(a) factors to the specific circumstances of the case before it,” and “stat[ing] in open

court the particular reasons supporting its chosen sentence” such that this Court can

meaningfully review the sentence. Carter, 564 F.3d at 328 (internal quotation marks and

emphasis omitted). The district court did that here, announcing that it was imposing a term

of lifetime supervised release and then discussing how it—together with the term of

imprisonment it simultaneously announced—satisfied the § 3553(a) factors. No more was

required, particularly where the term was consistent with the Guidelines recommendation

and Arbaugh indicated he had no objections to the procedure the court used to sentence

him when specifically given the opportunity to ask for clarification or elaboration. See also

United States v. Helton, 782 F.3d 148, 154 (4th Cir. 2015); see also United States v.

Aplicano-Oyuela, 792 F.3d 416, 424 (4th Cir. 2015).



                                             17
                                            E.

       Arbaugh’s final argument is that the district court committed reversible procedural

error by failing to adequately explain why it imposed four special conditions of supervised

release related to computers despite Arbaugh’s offense not involving a computer and

despite the possibility that they might limit his future job prospects. 3 At the sentencing

hearing, the district court ordered Arbaugh to comply with these special conditions, but it

did not explain why it was imposing them.

      Just as with other parts of a sentence, the district court must adequately explain any

special conditions of supervised release. See Armel, 585 F.3d at 186. When the district

court has offered no explanation for the imposition of a special condition, “we have no

basis for determining whether they are reasonably related to the factors referred to in 18

U.S.C. § 3583(d)(1) and ‘involve no greater deprivation of liberty than is reasonably

necessary.’ 18 U.S.C. § 3583(d)(2).” Id. (alteration in original). And in a decision issued



       3 The four special conditions are:
       [1] The defendant shall allow the probation officer or designee to conduct
            random inspections, including retrieval and copying of data from any
            computers, telephones, and personal computing devices that the
            defendant possesses or has access to, including any internal or external
            peripherals.
       [2] The defendant shall allow the temporary removal of any computers,
            telephones, and personal computing devices for a more thorough
            inspection.
       [3] The defendant shall not possess or use any data encryption technique or
            program.
       [4] The defendant shall purchase and use hardware and software systems that
            monitor the defendant’s computer usage, if so directed by the probation
            officer.
J.A. 959.
                                            18
after Arbaugh’s sentence, we held that a district court’s failure to explain the reasons for

any special conditions to which the defendant would be subject upon release for life was

not harmless. United States v. Ross, 912 F.3d 740, 746 (4th Cir. 2019). We are constrained

by this precedent to conclude that Arbaugh had “a right to know why he faces special

conditions that will forever modify the course of his life, and the district court’s silence

violated his rights.” Id.

       The Government’s arguments do not directly grapple with the district court’s silence

and our case law on this point. Instead, it asks the Court to affirm based on other areas of

the law and facts in the record that would support imposing the challenged special

conditions. But we are not permitted to substitute our assessment of the record for the

district court’s obligation to explain its rationale in the first instance. Id. The substantive

reasonableness of the conditions is a separate inquiry from the procedural reasonableness

of the hearing. Id. Further, the district court cannot fulfill its duty by generally referring to

the legal standards in § 3553(a) and § 3583(d), which govern how the court should exercise

its discretion in imposing any special conditions of release. Instead, the district court had

to explain what facts led to its decision to impose the computer-related special conditions

on this defendant. Id. at 745–46. 4

       Lastly, we reject the Government’s assertion that the special conditions are justified

by the fact that Arbaugh is required to register as a sex offender under the Sex Offender

Registration and Notification Act, which will separately subject him to similar conditions.


       4We express no view, one way or the other, as to the propriety of these special
conditions.
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Although individuals who must register under that Act may be required to submit to

warrantless searches as part of their release, 18 U.S.C. § 3563(b)(23), the district court still

has discretion whether to require that condition and this discretion is governed by the

standards set out in § 3553(a)(1) and (a)(2). See § 3563(b) (stating “[t]he court may

provide, as further conditions of a sentence . . . to the extent that such conditions are

reasonably related to the factors set forth in section 3553(a)(1) and (a)(2) and to the extent

that such conditions involve only such deprivations of liberty or property as are reasonably

necessary for the purposes indicated in section 3553(a)(2) . . . .”). Moreover, any separate

requirements flowing from the registration may change in the intervening years.

       For these reasons, we are constrained to find that the district court committed

reversible procedural error by failing to explain why it imposed the four computer-related

special conditions. As such, “we cannot determine the reasonableness of the challenged

special conditions.” Armel, 585 F.3d at 186. We therefore vacate Arbaugh’s sentence only

as to the challenged special conditions of release. We remand for resentencing so that the

district court can decide whether to impose those conditions and, if so, to provide an

individualized assessment of its reasons for doing so in Arbaugh’s case. 5




       5Although Arbaugh characterizes this issue in terms of a challenge to the procedural
reasonableness of the computer-related special conditions, some of his arguments also
questioned their substantive reasonableness. Given that we agree with him about
procedural error, we need not address the substantive argument.
                                              20
                                           III.

       For the reasons set out above, we affirm Arbaugh’s sentence to 276 months’

imprisonment and to lifetime supervised release. We vacate his sentence only with respect

to the four challenged special conditions of release, and we remand for resentencing as to

those alone.

                                                              AFFIRMED IN PART
                                                              AND VACATED AND
                                                              REMANDED IN PART




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