                                                                                    FILED
                                                                        United States Court of Appeals
                                        PUBLISH                                 Tenth Circuit

                      UNITED STATES COURT OF APPEALS                          October 31, 2014

                                                                            Elisabeth A. Shumaker
                              FOR THE TENTH CIRCUIT                             Clerk of Court


UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                            No. 13-6207

WESLEY A. BEAR,

      Defendant - Appellant.


                     Appeal from the United States District
                   Court for the Western District of Oklahoma
                         (D.C. No. 5:13-CR-00047-M-1)


Submitted on the briefs: *

Brooke A. Tebow, Assistant Federal Public Defender, Oklahoma City, Oklahoma,
for Appellant.

Sanford C. Coats, United States Attorney, and Timothy W. Ogilvie, Assistant
United States Attorney, Oklahoma City, Oklahoma, for Appellee.


Before HARTZ, PHILLIPS, and McHUGH, Circuit Judges.




       *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is therefore ordered
submitted without oral argument.
McHUGH, Circuit Judge.




      Defendant, Wesley A. Bear, pled guilty to one count of failing to register

or update a registration as a sex offender in violation of 18 U.S.C. § 2250. At

sentencing, the district court imposed certain special sex offender conditions of

supervised release in addition to its standard conditions of supervised release. Mr.

Bear objected to the conditions restricting his contact with children and requiring

him to submit to sex offender mental health assessment and treatment. The

district court overruled his objections, and Mr. Bear now appeals.

      This case requires us to resolve three disputes. First, Mr. Bear argues it was

an abuse of discretion for the district court to impose sex offender conditions

where his conviction of the prior sex offense occurred twelve years before this

conviction. Second, Mr. Bear contends the conditions involve a greater

deprivation of liberty than reasonably necessary to achieve the purposes of

sentencing. Third, Mr. Bear claims the special conditions are not consistent with

pertinent policy statements issued by the Sentencing Commission. Exercising

jurisdiction under 28 U.S.C. § 1291, we AFFIRM in part, VACATE in part, and

REMAND to the district court for further proceedings consistent with this

opinion.




                                        -2-
                              I.    BACKGROUND

      In 2001, Mr. Bear was convicted in Iowa state court on two counts of

committing lascivious acts with a child. According to the criminal complaint,

from 1994 to 1996, Mr. Bear forced one female under the age of twelve to engage

in oral and sexual intercourse with him and fondled the genitals of another female

child. As a result of his conviction for these sex offenses, Mr. Bear is required to

register as a sex offender by the Sex Offender Registration and Notification Act

(SORNA), 18 U.S.C. § 2250. Nine years after his sex offenses, in 2010, Mr. Bear

was convicted of a sex offender registration violation in a different part of Iowa.

      Following his 2010 SORNA conviction, Mr. Bear married and purchased a

trailer, which he placed on tribal land in Tama, Iowa. He used the trailer’s

address in his Iowa sex offender registration. Shortly thereafter, Mr. Bear, his

wife, and their three young children moved to his mother-in-law’s house in

Oklahoma City. Mr. Bear did not update his registration. When this omission was

discovered, Mr. Bear was arrested and charged with the present failure to comply

with SORNA, to which Mr. Bear pled guilty.

      The district court sentenced Mr. Bear to twenty-three months of

imprisonment and five years of supervised release. In addition to the standard

conditions of supervised release, the court imposed sex offender conditions of

supervised release. One condition required Mr. Bear to “submit to a sex offender

mental health assessment and a program of sex offender mental health treatment,

as directed by the U.S. Probation Officer, until such time as the defendant is

                                         -3-
released from the program by the probation officer.” R. Vol. 1 at 31. Two other

conditions prohibited Mr. Bear from being “at any residence where children

under the age of 18 are residing without the prior written permission of the U.S.

Probation Officer” or associating “with children under the age of 18 except in the

presence of a responsible adult who is aware of the defendant’s background and

current offense, and who has been approved by the U.S. Probation Officer.” R.

Vol. 1 at 31.

      Mr. Bear objected to the imposition of these conditions, asserting they

violated 18 U.S.C. § 3583(d). 1 Specifically, he claimed the underlying sex

offenses, which he committed seventeen years prior to sentencing, were too

remote in time to be reasonably related to the imposition of conditions of

supervised release. He also argued the conditions improperly restricted his right

to see and parent his own children, and the assessment and treatment condition




      1
        18 U.S.C. § 3583(d) authorizes further conditions of supervised release if each
condition:

      (1) is reasonably related to the factors set forth in section 3553(a)(1),
      (a)(2)(B), (a)(2)(C), and (a)(2)(D);

      (2) involves no greater deprivation of liberty than is reasonably necessary
      for the purposes set forth in section 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D);
      and

      (3) is consistent with any pertinent policy statements issued by the
      Sentencing Commission pursuant to 28 U.S.C. 994(a) . . . .


                                            -4-
was unnecessary because he underwent an assessment and completed treatment

around the time of his sex offense conviction.

      The district court overruled Mr. Bear’s objections and imposed the special

conditions of supervised release. The court reasoned that an assessment and

further treatment based on that assessment were appropriate because there was no

record evidence of a prior assessment or treatment. 2 It also rejected Mr. Bear’s

objection to the restrictions on his contact with his children, noting the condition

was not a total ban—Mr. Bear could still parent in the presence of an approved

adult supervisor—and Mr. Bear’s prior sex offense, though old, involved minor

children.

      Mr. Bear now appeals from the imposition of the challenged sentencing

conditions.



                                  II.     DISCUSSION

                             A.         Standard of Review

      “When the defendant objects to a special condition of supervised release at

the time it is announced, this Court reviews for abuse of discretion.” United

States v. Dougan, 684 F.3d 1030, 1034 (10th Cir. 2012). Thus, “we will not

disturb the district court’s ruling absent a showing it was based on a clearly


      2
        Mr. Bear was unable to produce records of the alleged prior assessment
and treatment because the doctor who had allegedly performed the treatment had
moved and was unresponsive to Mr. Bear’s inquiries.

                                            -5-
erroneous finding of fact or an erroneous conclusion of law or manifests a clear

error of judgment.” United States v. Batton, 602 F.3d 1191, 1196 (10th Cir. 2010)

(internal quotation marks omitted).

                               B.     Governing Law

      District courts have broad discretion to impose special conditions of

supervised release. See United States v. Mike, 632 F.3d 686, 692 (10th Cir. 2011).

The limits of that discretion are prescribed by 18 U.S.C. § 3583(d), which

requires the conditions (1) be reasonably related to the nature and circumstances

of the offense, the defendant’s history and characteristics, the deterrence of

criminal conduct, the protection of the public from further crimes of the

defendant, or the defendant’s educational, vocational, medical, or other

correctional needs; (2) involve no greater deprivation of liberty than is reasonably

necessary to achieve the purpose of deterring criminal activity, protecting the

public, and promoting the defendant’s rehabilitation; and (3) be consistent with

any pertinent policy statements issued by the Sentencing Commission. See 18

U.S.C. § 3583(d) (“Statutory Sentencing Factors”); id. § 3553(a); Mike, 632 F.3d

at 692. Sex offender conditions of supervised release may be imposed, even at

sentencing for crimes which are not sex crimes, if supported by § 3583(d). United

States v. Hahn, 551 F.3d 977, 983–86 (10th Cir. 2008); United States v. King, 431




                                         -6-
F. App’x 630, 635–36 (10th Cir. 2011) 3 (unpublished) (affirming sex offender

conditions of supervised release where the defendant was convicted of violating

SORNA); see also United States v. Morales-Cruz, 712 F.3d 71, 72 (1st Cir. 2013)

(affirming sex offender conditions imposed at sentencing for SORNA violation

where the defendant had an extensive criminal record and two prior convictions

for violating SORNA); United States v. Brogdon, 503 F.3d 555, 563–66 (6th Cir.

2007) (affirming sex offender conditions imposed at sentencing for being a felon

in possession of a firearm where the defendant had seven convictions for indecent

exposure, some of which involved minors, and a conviction of assault based on

allegations that he had “plac[ed] his intimate parts on his three-year old son”).

      Mr. Bear raises three challenges to the assessment and treatment condition

and the restrictions on his contact with children, which we address in turn. First,

he argues his underlying sex offense conviction is too old to be reasonably related

to the sex-offender conditions imposed. Second, he contends the conditions

involve a greater deprivation of liberty than reasonably necessary in violation of

§ 3583(d)(2). Third, he claims the conditions are not consistent with pertinent

policy statements issued by the Sentencing Commission.




      3
        Although not precedential, we find the reasoning of this court's unpublished
opinions instructive. See 10th Cir. R. 32.1 (“Unpublished decisions are not precedential,
but may be cited for their persuasive value.”); see also Fed. R. App. P. 32.1.


                                           -7-
         C.    Mr. Bear’s prior conviction is reasonably related to his special
                          conditions of supervised release.

      Prior sex offenses can be too temporally remote for sex-offender conditions

of supervised release to be reasonably related to the nature and circumstances of

the offense, the defendant’s history and characteristics, the deterrence of criminal

conduct, the protection of the public from further crimes of the defendant, or the

defendant’s educational, vocational, medical, or other correctional needs. United

States v. Dougan, 684 F.3d 1030, 1034 (10th Cir. 2012). There is no bright-line

rule for the outer limit of temporal remoteness, in part because district courts

must consider more than just the age of a defendant’s prior conviction. Id. at

1034–35. In addition to the time that has passed since the prior conviction, the

district court must consider whether the special conditions are “reasonably related

to” the Statutory Sentencing Factors in 18 U.S.C. § 3553(a). Id. at 1035; 18

U.S.C. §§ 3583(d)(1); 3553(a)(1), (a)(2)(B)-(D); see also United States v. Vinson,

147 F. App’x 763, 771–75 (10th Cir. 2005) (unpublished) (upholding sex

offender conditions based on a nine-year-old conviction where there was no

evidence the defendant had undergone mental health treatment and he had an

intervening conviction for failure to register under SORNA).

      In United States v. Mike, we addressed the imposition of special conditions

following an assault conviction, when a defendant’s sexual offense occurred nine

years before the assault, and twelve years prior to his assault conviction. 632 F.3d

686, 689 (10th Cir. 2011). One condition limited Mr. Mike’s access to computers.


                                         -8-
Id. at 693. Although we remanded to have the condition clarified on other

grounds, we held it was reasonably related to both protecting the public from

future crimes and providing Mr. Mike with correctional treatment because he had

committed a gruesome sex offense, he continued to have sexual deviance

problems, and he had serious mental health problems. We held those factors

justified restricting his access to computers and thereby, the material available on

the internet that appeals to individuals prone to committing sexual offenses. Id. at

693–94.

      We have also recognized significantly older sexual offenses, “viewed in the

factual context in which they arose,” can be too remote to be reasonably related

to a subsequent offense. Dougan, 684 F.3d at 1031. The defendant in Dougan

pled guilty to robbery sixteen years after being convicted of an aggravated

battery, which was originally charged as sexual battery, and thirty-three years

after being convicted of sexual battery. Id. Mr. Dougan had not shown any

proclivity toward sexual violence between the aggravated battery and robbery

convictions, did not manifest a propensity to do so in the future, and the

government had presented no evidence of a predilection toward sexual

interactions with children. Id. at 1037. In light of those facts, we held Mr.

Dougan’s sexual offenses were too remote in time to be reasonably related to his

later offenses and did not justify special sex-offender conditions of release. Id.

      In Dougan, we identified two other factors relevant to the consideration of

whether old offenses could support the imposition of sex offender conditions of

                                         -9-
supervised release. First, we noted Mr. Dougan had interim convictions for

failure to register as a sex offender under SORNA. Id. While we did not find

those convictions determinative, standing alone, we explained they made the

issue “a much closer question.” Id. As a second relevant factor, we acknowledged

the case could have been resolved differently if it had involved “more troubling

facts,” such as a defendant with “an extensive history of committing sex crimes”

or “a history of sexual offenses involving minors.” Id. at 1035–36.

       Applying this analysis to the present case, we note the age of Mr. Bear’s

prior offenses falls between that of the twelve-year-old conviction in Mike and

the seventeen-year-old conviction in Dougan. Mr. Bear’s prior sex offense

conviction was twelve years prior to sentencing here, and his criminal conduct

underlying that conviction occurred seventeen years before the present SORNA

conviction. Nonetheless, this case presents “more troubling facts” than Dougan.

Mr. Bear’s sex offenses occurred multiple times over the course of two years,

involved two child victims, and included oral and sexual intercourse with a child

under the age of twelve. 4 Although the facts in the record here are less graphic

than those described in Mike, Mr. Bear’s conduct is at least as troubling. Thus we

hold Mr. Bear’s prior sex offense was reasonably related to the imposition of the

special sex offender conditions and survive his § 3583(d)(1) challenge.

       4
         Although we typically rely on evidence introduced at trial or in an evidentiary
hearing, rather than facts alleged in a criminal complaint, the district court relied on these
allegations at sentencing and Mr. Bear has not disputed them for purposes of appeal.


                                             -10-
       The assessment and treatment condition is also reasonably related to

Mr. Bear’s history and characteristics, the need to protect the public from future

crimes, and his need for correctional treatment. Mr. Bear engaged in sexual acts

with minors, at least one of whom was under twelve. Although Mr. Bear argues

he completed mental health treatment after his sex offense conviction, he has not

supported that allegation with documentation. Furthermore, Mr. Bear’s

intervening sex offender registration conviction and current SORNA conviction,

while fundamentally different than the underlying sex offenses, are not entirely

unrelated and raise concerns that Mr. Bear may not comply with his ongoing

SORNA obligations. This justifies special conditions related to rehabilitation and

monitoring. See Dougan, 684 F.3d at 1037; Vinson, 147 F. App’x at 772–73

(affirming an assessment and treatment condition where the defendant could not

establish he had previously been assessed, so long as treatment was required only

if supported by the assessment). Accordingly, the assessment and treatment

condition also survives Mr. Bear’s § 3583(d)(1) challenge.

    D.     The special condition of supervised release restricting Mr. Bear’s
             contact with his children creates a greater deprivation of
           liberty than reasonably necessary, but the special condition
           requiring mental health assessment and treatment does not.

       Special conditions of supervised release must “involve[] no greater deprivation of

liberty than is reasonably necessary” to achieve the purpose of deterring criminal activity,

protecting the public, and promoting the defendant’s rehabilitation. 18 U.S.C.

§ 3583(d)(2); see also United States v. Mike, 632 F.3d 686, 692 (10th Cir. 2011).


                                           -11-
Mr. Bear argues the challenged conditions here impose an unreasonable deprivation of

his liberty. We begin our analysis of this claim by addressing the conditions of supervised

release limiting Mr. Bear’s contact with children. We then turn to the assessment and

treatment condition and consider both Mr. Bear’s statutory challenge and his argument,

advanced for the first time on appeal, that the district court improperly delegated its

sentencing authority to Mr. Bear’s probation officer.

1.      Restrictions on Mr. Bear’s Contact with Children

        Mr. Bear argues the restrictions on his contact with children are improper

because they prevent him from being alone with his own children. When a

defendant has committed a sex offense against children or other vulnerable

victims, general restrictions on contact with children ordinarily do not involve a

greater deprivation of liberty than reasonably necessary. United States v. Smith,

606 F.3d 1270, 1282–83 (10th Cir. 2010). But restrictions on a defendant’s

contact with his own children are subject to stricter scrutiny. “[T]he relationship

between parent and child is constitutionally protected,” and “a father has a

fundamental liberty interest in maintaining his familial relationship with his

[children].” United States v. Edgin, 92 F.3d 1044, 1049 (10th Cir. 1996). Given

the importance of this liberty interest, “special conditions that interfere with the

right of familial association can do so only in compelling circumstances,” Smith,

606 F.3d at 1284, and it is imperative that any such restriction “be especially

fine-tuned” to achieve the statutory purposes of sentencing. Edgin, 92 F.3d at

1049.

                                            -12-
       The present record does not provide compelling evidence that could support

restrictions on Mr. Bear’s contact with his own children. The government presented no

evidence that in the twelve years since Mr. Bear’s sex offense conviction he has

committed any sexual offense, displayed a propensity to commit future sexual offenses,

or exhibited a proclivity toward sexual violence. Nor is there any evidence in the record

that Mr. Bear has continuing deviant sexual tendencies, fantasizes about having sex with

children, or has otherwise displayed a danger to his own three children. Under these

circumstances, Mr. Bear’s 2001 conviction for sex offenses is simply too remote in time,

standing alone, to provide compelling evidence justifying infringement upon Mr. Bear’s

right of familial association. Thus we vacate the conditions limiting Mr. Bear’s ability to

be at his children’s residence and his ability to be alone with his children without

supervision.

2.     Mental Health Assessment and Treatment

       We next consider Mr. Bear’s challenge to the assessment and treatment

condition. Although conditions requiring a mental health evaluation and treatment

affect a liberty interest and must be supported by particularized findings by the

district court, we have generally found a defendant’s commission of a sex crime

enough to require an initial mental health assessment and treatment consistent

with that assessment. See Mike, 632 F.3d at 698–99. Where the district court was

unable to confirm whether Mr. Bear had been assessed and treated at the time of

his sex offense convictions, it did not impermissively invade Mr. Bear’s liberty



                                            -13-
interests by requiring a mental health assessment and treatment as a condition of

supervised release.

      For the first time on appeal, Mr. Bear raises a related but distinct issue. He

argues the assessment and treatment condition unconstitutionally delegates

sentencing authority to the probation officer. We review this argument for plain

error. United States v. Teague, 443 F.3d 1310, 1314 (10th Cir. 2006). To prevail

on this unpreserved claim, Mr. Bear “must establish (1) that the district court

committed error, (2) that the error was plain, and (3) that the error affected his

substantial rights.” United States v. Charles, 576 F.3d 1060, 1065 (10th Cir.

2009). Because we conclude the district court did not err, we do not reach the

other requirements of plain error review.

      Article III of the United States Constitution confers the authority to impose

punishment on the judiciary, and the judiciary may not delegate that authority to

a nonjudicial officer. Mike, 632 F.3d at 695; United States v. Kent, 209 F.3d

1073, 1078 (8th Cir. 2000). To decide whether a condition of supervised release

improperly delegates judicial authority to a probation officer, we “distinguish

between [permissible] delegations that merely task the probation officer with

performing ministerial acts or support services related to the punishment imposed

and [impermissible] delegations that allow the officer to decide the nature or

extent of the defendant's punishment.” Mike, 632 F.3d at 695. This inquiry

focuses on the liberty interest affected by the probation officer’s discretion.

“Conditions that touch on significant liberty interests are qualitatively different

                                        -14-
from those that do not.” Id. As a result, allowing a probation officer to make the

decision to restrict a defendant’s significant liberty interest constitutes an

improper delegation of the judicial authority to determine the nature and extent of

a defendant’s punishment. Id.

      In Mike, we explained that certain mental health treatment tools like

residential treatment, penile plethysmograph testing, and the involuntary

administration of psychotropic drugs constitute greater infringements on a

defendant’s liberty than outpatient mental health care or other more routine

treatment and assessment tools. Id. at 695–96; see also Addington v. Texas, 441

U.S. 418, 425 (1979); United States v. Bradley, 417 F.3d 1107, 1113 (10th Cir.

2005); United States v. Stoterau, 524 F.3d 988, 1005–06 (9th Cir. 2008); United

States v. Weber, 451 F.3d 552, 563 (9th Cir. 2006). However, where a broad

condition of supervised release is ambiguous and could be read as restricting a

significant liberty interest, we construe the condition narrowly so as to avoid

affecting that significant liberty interest. Mike, 632 F.3d at 696 (construing

mental health assessment and treatment conditions of supervised release narrowly

so as not to implicate the defendant’s significant liberty interests).

      Here, the district court required Mr. Bear to “submit to a sex offender

mental health assessment and a program of sex offender mental health treatment,

as directed by the U.S. Probation Officer, until such time as the defendant is

released from the program by the probation officer.” R. Vol. 1 at 31. Although

the condition is broadly worded, we interpret it to reflect the probation officer’s

                                         -15-
representation to the district court that the results of the assessment would dictate

the scope of any treatment plan. Similarly, we read the condition as not

delegating to the probation officer the authority to impose conditions that

implicate Mr. Bear’s significant liberty interests, such as residential treatment,

penile plethysmograph testing, or the involuntary administration of psychotropic

drugs. Construed narrowly, the trial court did not err in imposing the mental

health assessment and treatment conditions of supervised release because they do

not improperly delegate judicial authority to Mr. Bear’s probation officer.

            E.    The conditions of supervised release were consistent
                        with pertinent policy statements issued
                            by the Sentencing Commission.

      Mr. Bear’s final argument is that the conditions of supervised release were

not consistent with policy statements issued by the Sentencing Commission.

Because there is nothing in the policy statements supporting a prohibition on

association and contact with children, he contends we must reverse those

conditions. 5 As support for that position, Mr. Bear relies on 18 U.S.C.

§ 3583(d)(3), which requires special conditions to be “consistent with any

pertinent policy statements issued by the Sentencing Commission.” But we do not

read this provision as requiring the conditions to be expressly covered by policy

      5
        Mr. Bear also reiterates his argument that there was no evidence that he needed
mental health treatment. As discussed, the absence of any verification that Mr. Bear had
undergone a mental health assessment and treatment after his sex offense conviction and
Mr. Bear’ subsequent SORNA conviction provided a sufficient connection between this
condition and Mr. Bear’s current SORNA offense.


                                          -16-
statements. Rather, § 3583(d)(3) mandates only that the conditions not directly

conflict with the policy statements. Therefore, when considering challenges to

supervised release conditions brought under § 3583(d)(3), courts tend to evaluate

them under § 3583(d)(1), which requires that conditions be reasonably related to

certain § 3553(a) factors. United States v. Kent, 209 F.3d 1073, 1077–78 (8th Cir.

2006); see United States v. Hopson, 203 F. App’x 230, 232–33 (10th Cir. 2006)

(unpublished); see also United States v. Majors, 426 F. App’x 665, 668–69 (10th

Cir. 2011) (unpublished) (citing the Sentencing Guidelines in reviewing a

condition requiring mental health treatment, but primarily deciding the issue as a

challenge to sufficiency of § 3553(a) justifications).

      As explained above, we reject Mr. Bear’s § 3583(d)(1) challenges and see

nothing in the policy statements that compels a different result. U.S.S.G.

§ 5D1.3(d)(5) recommends mental health program participation if a court has

reason to believe the defendant is in need of treatment. Evidence that a defendant

has committed sex crimes can show a defendant needs mental health treatment.

United States v. Miles, 411 F. App’x 126, 129 (10th Cir. 2010) (unpublished)

(concluding that e-mail messages and chat room comments supported imposition

of sex offender mental health assessment and treatment). Mr. Bear has also failed

to identify any policy statements that discourage limiting his contact with

children other than his own, due to his prior sexual offenses against two child

victims.



                                        -17-
         Accordingly, we reject Mr. Bear’s claim that the special conditions are not

consistent with policy statements issued by the Sentencing Commission.



                                III.   CONCLUSION

         For the foregoing reasons, Mr. Bear’s sentence is AFFIRMED in part,

VACATED in part, and we REMAND for further proceedings consistent with this

order.




                                          -18-
