                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                      No. 16-3028
                                   ________________

                            UNITED STATES OF AMERICA

                                             v.

                                  ANGELO TROVATO,
                                                  Appellant
                                   ________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                         D. C. Criminal No. 3-16-cr-00135-001
                      District Judge: Honorable James M. Munley
                                   ________________

                       Submitted under Third Circuit LAR 34.1(a)
                                  on January 26, 2017

             Before: CHAGARES, RESTREPO and ROTH, Circuit Judges

                             (Opinion filed: March 13, 2017)



                                   ________________

                                       OPINION*
                                   ________________


ROTH, Circuit Judge

*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Angelo Trovato appeals an order, modifying the conditions of his supervised

release to include periodic polygraph testing. We will affirm.

                                             I.

       In 2008, Trovato pleaded guilty in the District of Massachusetts to one count of

traveling with the intent to engage in illicit sexual conduct with a minor and one count of

using the Internet to coerce and entice a minor to engage in sexual activity. His sentence

included a five-year term of imprisonment and a fifteen-year term of supervised release.

During Trovato’s sentencing hearing, the Massachusetts District Court imposed

numerous supervised release conditions, requiring him to, inter alia, participate in a

treatment program for sex offenders, register as a sex offender, and permit the Probation

Office to monitor his Internet activity. The Massachusetts Probation Office asked the

court to impose a condition that would require Trovato to submit to periodic polygraph

testing. Because it was “not certain how honest and accurate the polygraph test is under

any set of circumstances,” the court declined to impose the additional condition.

       Trovato began his term of supervised release in December 2010. In January 2011,

jurisdiction over the remainder of his supervised release term was transferred to the

Middle District of Pennsylvania. After the transfer of his supervision, Trovato

voluntarily submitted to a polygraph examination. Trovato subsequently refused to

submit to additional polygraph exams because doing so was not required by his

supervised release conditions, and because he feared that his prescription medication

would compromise any exam results. Although Trovato had not violated the conditions


                                             2
of his supervised release, the Middle District Probation Office petitioned the District

Court for the Middle District of Pennsylvania to require Trovato to submit to periodic

polygraph testing pursuant to the Middle District’s internal policy.1 The District Court

held a sentence modification hearing on June 17, 2016. The Probation Office contended

that routine polygraph testing would facilitate their ability to ensure that Trovato remains

in compliance with the requirements of supervision and treatment. After allowing the

parties to argue their positions in open court, the District Court granted the Probation

Office’s petition. It amended the conditions of Trovato’s supervised release by requiring

him to submit to periodic polygraph testing. This appeal followed.

                                            II.2

       District courts “possess broad discretionary authority to modify the terms and

conditions of a defendant’s supervised release.”3 Accordingly, we review a district

court’s decision to modify the conditions of an individual’s supervised release for abuse

of discretion.4 However, when a defendant raises no objection to the condition during a

modification proceeding, we will instead review for plain error.5 While Trovato argues


1
  The Middle District Probation Office requires all convicted sex offenders to submit to
polygraph testing.
2
  The District Court had jurisdiction pursuant to 18 U.S.C. § 3605 and 18 U.S.C. §
3583(e), and we have appellate jurisdiction under 28 U.S.C. § 1291. United States v.
Murray, 692 F.3d 273, 278 (3d Cir. 2012).
3
  United States v. Wilson, 707 F.3d 412, 416 (3d Cir. 2013).
4
  Id.; see also United States v. Smith, 445 F.3d 713, 716 (3d Cir. 2006) (citations
omitted).
5
  United States v. Maurer, 639 F.3d 72, 77 (3d Cir. 2011) (citations omitted). Plain error
review requires that we ask whether Trovato has established that there was an error, that
the error was plain or “clear and obvious,” and that the error affected substantial rights.
United States v. Leahy, 445 F.3d 634, 655 (3d Cir. 2006). If we are satisfied that Trovato
                                             3
that the appropriate standard of review is abuse of discretion, the government submits

that the standard of review is plain error because Trovato did not properly object at the

modification proceeding. We need not resolve this dispute because the District Court’s

decision was not an abuse of discretion and thus not plainly erroneous.

                                              III.

       18 U.S.C. § 3583(e)(2) provides that, upon consideration of the factors set forth in

§ 3553(a), a district court may modify the conditions of an offender’s supervised release

pursuant to, inter alia, the Federal Rules of Criminal Procedure. The applicable

procedural rule permits a court to modify an individual’s supervised release conditions

only after the court has held a hearing “at which the person has the right to counsel and

an opportunity to make a statement and present any information in mitigation.”6 The

federal rules note that sentencing courts must be able to modify supervision conditions in

response to changed circumstances “as well as new ideas and methods of rehabilitation.”7

       Trovato primarily argues that, absent a change in circumstances, the District Court

lacked authority to modify the conditions of his supervised release. Even assuming,

arguendo, that a threshold showing of changed circumstances is required, Trovato cannot

prevail here because our decision in United States v. Murray establishes that the “move to

a new jurisdiction constitute[s] a new circumstance.”8 We see no difference between this


has met his burden, we may exercise our discretion to reverse “if the error[ ] seriously
affect[ed] the fairness, integrity, or public reputation of judicial proceedings.” Id. (first
alteration in original) (quotation marks omitted).
6
  Fed. R. Crim. P. 32.1(c)(1).
7
  Fed. R. Crim. P. 32.1 advisory committee’s note.
8
  692 F.3d at 279 (internal quotation marks omitted).
                                               4
case and Murray. Since the imposition of his original supervised release conditions,

Trovato moved from the District of Massachusetts to the Middle District of Pennsylvania.

Because his move to a new jurisdiction constitutes a change in circumstances, the District

Court acted within its broad discretion to modify the conditions of Trovato’s supervised

release.

       Trovato also contends that the District Court procedurally erred because it failed to

provide on the record an explanation for imposing the added condition. “We have

consistently required . . . district courts [to] explain and justify conditions of supervised

release.”9 Nevertheless, when the District Court fails to provide such an explanation, “we

may affirm the condition[s] if we can ascertain any viable basis for the restriction[s] in

the record.”10

       The District Court’s decision to add a periodic polygraph testing requirement to

the conditions of Trovato’s supervised release was proper. Section 3583(d) permits

sentencing courts to impose conditions of supervised release that are reasonably related to

the § 3553(a) factors so long as they involve no greater deprivation of liberty than is

reasonably necessary.11 The § 3553(a) factors direct sentencing courts to consider, inter

alia, the nature and circumstances of the offense and the history and characteristics of the

offender, as well as the need for the sentence to reflect the seriousness of the offense,

deter criminal conduct, protect the public from recidivism, and provide the defendant


9
  Id. at 281 (citation and internal quotation marks omitted).
10
   Id. at 281 (citation, internal quotation marks, and ellipsis omitted); see also United
States v. Voelker, 489 F.3d 139, 144 (3d Cir. 2007) (citation omitted).
11
   18 U.S.C. § 3583(d).
                                               5
with necessary training and treatment in the most effective manner.12 The government

asserts that polygraph examinations allow the probation office to more effectively

determine whether there “are any particular instances of conduct that probation needs to

know about to help prevent any reoccurring offenses of a similar nature.” We have no

reason to doubt the accuracy of this claim and have already recognized that “polygraph

result[s] may be used . . . to enhance supervision and treatment of [a] releasee.” 13

       Although Trovato has not violated the original conditions of his supervised

release, his Pre-sentence Investigation Report establishes that he was previously charged

with child-related sex offenses. In addition, while on pre-trial release for an unrelated sex

offense, Trovato was arrested when he attempted to meet an adolescent boy at his

Pennsylvania lake house. These circumstances, in light of the seriousness and nature of

the underlying offenses, clearly provide a sufficient basis upon which the court could rely

in imposing a periodic polygraph examination requirement.

       Finally, we reject Trovato’s contention that the newly imposed condition amounts

to a greater deprivation of liberty than is reasonably necessary. The polygraph

requirement does not impose a much greater demand on Trovato than he would otherwise

face by periodically reporting to the Probation Office to provide truthful answers to his

officer’s inquiries.14


12
   See 18 U.S.C. § 3553(a).
13
   United States v. Lee, 315 F.3d 206, 214 (3d Cir. 2003).
14
   See id. (“The additional requirement that [a releasee] be subject to polygraph testing
does not substantially increase the burden on him.”).


                                              6
      For the reasons set forth above, we conclude that Trovato has failed to

demonstrate that the District Court abused its discretion in imposing the polygraph

condition.

                                           IV.

      The District Court did not err in ordering this modification of the conditions of

Trovato’s supervised release. Accordingly, we will affirm the order of the District Court.




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