                          RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                     File Name: 17a0244p.06

                    UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT



 UNITED STATES OF AMERICA,                               ┐
                                   Plaintiff-Appellee,   │
                                                         │
                                                         >      No. 16-6410
       v.                                                │
                                                         │
                                                         │
 BLAKE CHILDRESS,                                        │
                                Defendant-Appellant.     │
                                                         ┘

                          Appeal from the United States District Court
                      for the Eastern District of Tennessee at Greeneville.
                     No. 2:12-cr-00071-1—J. Ronnie Greer, District Judge.

                                   Argued: October 3, 2017

                             Decided and Filed: October 30, 2017

                    Before: CLAY, ROGERS, and SUTTON, Circuit Judges.
                                   _________________

                                          COUNSEL

ARGUED:         Laura E. Davis, FEDERAL DEFENDER SERVICES OF EASTERN
TENNESSEE, INC., Knoxville, Tennessee, for Appellant. Timothy C. Harker, UNITED
STATES ATTORNEY’S OFFICE, Greeneville, Tennessee, for Appellee. ON BRIEF: Laura
E. Davis, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville,
Tennessee, for Appellant. Timothy C. Harker, UNITED STATES ATTORNEY’S OFFICE,
Greeneville, Tennessee, for Appellee.
 No. 16-6410                            United States v. Childress                        Page 2


                                           _________________

                                                OPINION
                                           _________________

       CLAY, Circuit Judge. Defendant Blake Childress appeals the district court’s order
imposing a special condition of supervised release pursuant to 18 U.S.C. § 3583, following his
federal conviction for being a felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1) and state court convictions for incest and aggravated assault. For the reasons set
forth below, we AFFIRM.

                                            BACKGROUND

       In 2012, Defendant pleaded guilty to being a convicted felon in possession of a firearm,
in violation of 18 U.S.C. § 922(g)(1).           On April 15, 2013, Defendant was sentenced to
41 months’ imprisonment and three years of supervised release. At the time of sentencing,
Defendant had a pending incest charge in Tennessee state court relating to inappropriate sexual
contact with his minor half-sister. See State v. Childress, No. E2014-02142-CCA-R3-CD, 2015
WL 7575328, at *1–3 (Tenn. Crim. App. Nov. 25, 2015).                After his federal sentencing,
Defendant was tried and convicted on the incest charge. Id. at *1. On appeal, the Tennessee
Court of Criminal Appeals reversed the conviction for a Miranda violation and remanded the
case for a new trial. Id. at *9, *13.

       While Defendant’s new state case was pending, the Probation Office petitioned the
district court for two modifications to Defendant’s special conditions of supervised release. The
first was that Defendant was to have “no direct or third party contact, by any means available to
him/her with any victim(s) of a sex offense committed by the defendant;” the second required
Defendant to “submit to a psychosexual assessment at his/her own expense, as directed by the
probation officer.”

       In July 2016, Defendant entered into a “best interest” plea agreement in state court to the
reduced charge of aggravated assault, in violation of Tenn. Code Ann.§ 39-13-102. On August
29, 2016, the federal district court held a hearing on the petition for modification of the
Defendant’s supervised release order. At the hearing, the government introduced the opinion
 No. 16-6410                              United States v. Childress                                         Page 3


from the Tennessee Court of Criminal Appeals, a report of interview from the victim, a child
services letter, a prosecution report from the Third Judicial District, and copies of Defendant’s
state court convictions and the probation conditions. These documents described numerous
incidents of inappropriate sexual conduct between Defendant and his half-sister, only some of
which formed the basis for his state court convictions. Defendant did not object to the first
modification of his supervised release—i.e., that he have no contact with any victim(s) of a sex
offense committed by him—but he did object to the imposition of a psychosexual evaluation.

         The government argued that the condition pertained to Defendant’s history and
characteristics, to the need to protect the public from further crimes by Defendant, and to the
need to provide Defendant with needed medical care or correctional treatment. Defendant
argued that a psychosexual evaluation was intrusive and unrelated to his federal felon in
possession offense. Defendant also argued that it was not the “least restrictive means” that the
court could employ to achieve the sentencing purposes of 18 U.S.C. § 3553(a).                                Instead,
Defendant suggested additional mental health treatment. The district court rejected this
suggestion because it determined that a psychosexual evaluation would help the probation officer
determine what risk, if any, Defendant may pose to the public, while mental health treatment
would not. The court also said that a psychosexual evaluation is “a condition generally required
of offenders convicted of a sex offense.”1

         On September 1, 2016, the district court ordered that the special conditions of
Defendant’s supervised release be modified to include the two additional conditions. The court
agreed that Defendant’s state aggravated assault conviction was not “for a sexual offense,” but,
applying United States v. Carter, 463 F.3d 526 (6th Cir. 2006), the court held that the
determinative question was “not whether the title of the offense denotes a sexual offense but
whether the defendant ‘actually committed the offense . . . in a sexual manner.’” Thus, the
district court found that the psychosexual assessment condition was “directly related to the


         1
          Moreover, the government conceded at oral argument that it would not conduct a penile plethysmography
test—the part of the evaluation that Defendant seems to find most intrusive—without seeking an additional order
from the district court. And this Court has previously held that a special condition that included the mere possibility
of penile plethysmography is not ripe for appellate review unless and until a defendant is required to undergo the
procedure. United States v. Lee, 502 F.3d 447, 450 (6th Cir. 2007).
 No. 16-6410                       United States v. Childress                              Page 4


defendant’s criminal history.” Moreover, Defendant acknowledged at the hearing that the same
prosecution report formed the basis for his earlier incest conviction and his aggravated assault
conviction. Therefore, because Defendant had “been convicted of aggravated assault which was
committed in a sexual manner,” his history and characteristics were “reasonably related to this
special condition.”

       Defendant filed a timely appeal of the district court’s order.

                                          DISCUSSION

I.     Standard of Review

       We review the district court’s imposition of a special condition of supervised release only
for an abuse of discretion. United States v. Hundley, 625 F. App’x 274, 276 (6th Cir. 2015)
(citing Carter, 463 F.3d at 528). An abuse of discretion occurs when this court has a “definite
and firm conviction that the [district] court . . . committed a clear error of judgment in the
conclusion it reached upon a weighing of the relevant factors or where it improperly applie[d]
the law or use[d] an erroneous legal standard.” Id. (internal citations and quotation marks
omitted).

II.    Analysis

       “We review the imposition of a special condition of supervised release along two
dimensions.” Carter, 463 F.3d at 528. The first dimension is procedural: “The [district] court, at
the time of sentencing, [must] state in open court the reasons for its imposition of the particular
sentence, including its rationale for mandating special conditions of supervised release.” Id. at
528–29 (internal citations and quotation marks omitted). Defendant does not challenge the
procedural aspect of the imposition of the special condition.

       Defendant’s challenge focuses on the second, substantive dimension in which we review
the district court’s imposition of the special conditions of supervised release. This Court has said
that “where a condition of supervised release is reasonably related to the dual goals of probation,
the rehabilitation of the defendant and the protection of the public, it must be upheld.” United
States v. Bortels, 962 F.2d 558, 560 (6th Cir. 1992). We later recognized, however, that “[t]his
 No. 16-6410                        United States v. Childress                               Page 5


statement was an oversimplification, as the statutory requirements are actually more detailed.”
Carter, 463 F.3d at 529. First, the condition must be “reasonably related to” several sentencing
factors. 18 U.S.C. § 3583(d)(1). These factors include “the nature and circumstances of the
offense and the history and characteristics of the defendant” and “the need for the sentence
imposed . . . to afford adequate deterrence to criminal conduct; . . . to protect the public from
further crimes of the defendant; and . . . to provide the defendant with needed educational or
vocational training, medical care, or other correctional treatment in the most effective manner[.]”
18 U.S.C. § 3553(a)(1), (a)(2)(B)-(D).        Second, the condition must “involve[] no greater
deprivation of liberty than is reasonably necessary for” several sentencing purposes. 18 U.S.C.
§ 3583(d)(2). These purposes are “to afford adequate deterrence to criminal conduct; . . . to
protect the public from further crimes of the defendant; and . . . to provide the defendant with
needed educational or vocational training, medical care, or other correctional treatment in the
most effective manner.”      18 U.S.C. § 3553(a)(2)(B)-(D).        Finally, the condition must be
“consistent with any pertinent policy statements issued by the Sentencing Commission[.]”
18 U.S.C. § 3583(d)(3). “Because they are written in the conjunctive, a condition must satisfy
all three requirements . . . . However, a condition need not satisfy every single factor and purpose
within each of the first two requirements.” Carter, 463 F.3d at 529–30.

       Defendant does not argue that the special condition is inconsistent with the Sentencing
Commission policy statements. See 18 U.S.C. § 3583(d)(3). Nor does he argue—in any depth—
that the condition involves a greater deprivation of liberty than is reasonably necessary for the
relevant sentencing purposes. See 18 U.S.C. § 3583(d)(2). Thus, Defendant’s argument seems
to be that the special condition was not reasonably related to an enumerated sentencing factor.
See 18 U.S.C. § 3583(d)(1). Specifically, he challenges the district court’s conclusion that the
special condition of psychosexual assessment was reasonably related to “the history and
characteristics of the defendant.” 18 U.S.C. § 3553(a)(1). Defendant advances two arguments to
support his position: first, he argues that it was improper for the district court to base the special
condition on his conviction for aggravated assault; and second, he argues that even if the court
 No. 16-6410                              United States v. Childress                                          Page 6


could rely on a conviction for aggravated assault, the evidence supporting his particular
conviction was unreliable. Defendant is wrong on both accounts.2

         1. The district court properly relied on the circumstances of Defendant’s conviction
            to justify imposing a special condition of psychosexual evaluation.

         Defendant argues that because aggravated assault is not, on its face, a sex offense, his
conviction for aggravated assault was an insufficient basis on which to conclude that a
psychosexual evaluation was “reasonably related” to “the history and characteristics of the
defendant” as required by § 3553(a)(1), through § 3583(d)(1). As the district court noted,
however, the lesson of Carter is clear: “the question is not whether the title of the offense
denotes a sexual offense but whether the defendant ‘actually committed the offense . . . in a
sexual manner.’” In Carter, the defendant appealed the imposition of a special supervised-
released condition mandating sex-offender treatment on the ground that it was not reasonably
related to his immediate conviction of being a felon in possession of a firearm or his prior
convictions for sex offenses committed seventeen years earlier. The court vacated the special
condition because the defendant’s current conviction was not a sex offense, his prior rape and
assault with intent to commit rape convictions were too remote in time, and it was unclear
whether the defendant’s recent stalking charge was sexual in nature. The court remanded the
case to the district court to determine whether the defendant’s stalking conviction was sexual in
nature, which would provide an independent basis for imposing the special condition.

         In this case, Defendant was tried in state court and found guilty of incest. Although that
conviction was ultimately overturned, Defendant later pleaded guilty to aggravated assault


         2
           Defendant appears at times to make a third argument that a psychosexual evaluation is not reasonably
related to his federal conviction of being a felon in possession of a firearm. But it need not be. A district court may
impose a special condition based on any of several sentencing factors. In this case, the court did not base its
imposition of the special condition on the “nature and circumstances of the offense,” but on the “the history and
characteristics of the defendant,” which is permissible under 18 U.S.C. § 3553(a)(1) and squarely permitted by
Carter. See also United States v. Evans, 727 F.3d 730, 735 (7th Cir. 2013) (“[S]ex-offender treatment is reasonably
related to the factors in Section 3553(a), even if the offense of conviction is not a sex offense, so long as the sexual
offenses are recent enough in the defendant’s history that the goals of rehabilitation and protecting the public justify
an order for treatment.”); United States v. T.M., 330 F.3d 1235, 1240 (9th Cir. 2003) (“[S]upervised release
conditions need not relate to the offense for which [a defendant] was convicted as long as they satisfy any of the
conditions set forth [in Section 3553(a)]”). Thus, Defendant does not make too much of this argument and neither
should we.
 No. 16-6410                             United States v. Childress                                      Page 7


“based on the same conduct” that led to the incest conviction, namely, that Defendant engaged in
sexual acts with his minor half-sister on two different occasions, first in 2002 and again in fall
2011. Thus, the conviction was clearly sexual in nature, and the district court did not abuse its
discretion in finding that imposing a psychosexual assessment was reasonably related to “the
history and characteristics of the defendant.” 18 U.S.C. §§ 3553(a)(1), 3583(d)(1).

        Defendant next argues that the district court abused its discretion by relying on a state
court conviction for which the factual basis was unclear. The argument seems to be this:
Defendant pleaded guilty to violating Tennessee’s aggravated assault statute—Tenn. Code Ann.
§ 39-13-102 (2011)—and was awarded a Class C felony. For Defendant to have been awarded a
Class C felony in compliance with § 39-13-102(a)(1)(A)(i), (iii), or (iv) (the only sections
potentially applicable to Defendant), the assault must have resulted in serious bodily injury, have
involved a deadly weapon, or have involved strangulation. Because the record does not indicate
that any of these circumstances occurred, two possibilities logically follow: either (1) the plea
was based on some conduct other than that which formed the basis of Defendant’s incest
conviction and therefore the court “could not know if Mr. Childress’ aggravated assault
conviction was actually committed in a sexual manner” or (2) the elements of aggravated assault
were not met and the federal court ought not to ratify the state court’s mistake by using it as a
basis for imposing a special condition.

        Since the record is clear that the same conduct formed the basis for the incest and
aggravated assault convictions,3 Defendant’s arguments ultimately boil down to one—the
procedural defectiveness of his plea. But Defendant has not challenged his plea. Moreover, the
validity of his plea has no bearing on the propriety of the district court’s decision to impose the
special condition. A sentencing court’s consideration of a defendant’s history and characteristics
is not limited to prior criminal convictions. For example, in United States v. Perkins, 207 F.
App’x 559 (6th Cir. 2006), the defendant pleaded guilty to the illegal possession of a firearm by
a convicted felon and was sentenced to 110 months’ imprisonment. The court also imposed sex-
offender treatment as a condition of supervised release.                 Citing the defendant’s history of

        3
          Indeed, at the district court hearing, Defense counsel specifically agreed that “the same prosecut[orial]
report was relied upon for the aggravated assault that was also the basis for the original state charges.”
 No. 16-6410                        United States v. Childress                                Page 8


“aggressive behavior toward women which this type of counseling could help ameliorate,” this
Court upheld the imposition of the sex-offender treatment even though the instant conviction was
not for a sex-related offense. Id. at 561–62. Among the prior conduct considered by the court
were arrests for assault earlier in the defendant’s life that never resulted in conviction. Id. at 562.

       Other circuits have reached this same conclusion. In United States v. Prochner, 417 F.3d
54 (1st Cir. 2005), the defendant was convicted of credit card fraud and he appealed the district
court’s imposition of a special condition requiring that he be evaluated for participation in a sex
offender treatment program. The First Circuit upheld the special condition even though the
defendant had never been convicted of any sex-related offense. There, the record contained “no
direct evidence that Prochner ha[d] engaged in inappropriate conduct with minors,” but the
evidence showed that he had worked in various programs with young boys and that he had
written journal entries indicating that he “may have had, or, at minimum, desired to have, sexual
relationships with adolescent males.” Id. at 63–64. Given that evidence, the court found that
“[t]he condition . . . was reasonably related both to the need, while Prochner was still under
supervision, to protect the public from future potential crimes by Prochner (who had already
committed a serious crime, albeit of a different kind) and the need to provide Prochner with
whatever treatment he might need.” Id. at 64. And in United States v. Prendergast, 979 F.2d
1289, 1293 (8th Cir. 1992), the Eighth Circuit affirmed a special condition requiring treatment
for gambling, based on “evidence that [a] defendant ha[d] a gambling habit which does need to
be addressed,” although nothing in the record indicated any prior criminal convictions related to
gambling. See also United States v. Weatherton, 567 F.3d 149, 154 (5th Cir. 2009) (under plain
error review, sex offender conditions could be predicated on a 1979 rape conviction and a
2007 warrant charging the defendant with rape).

       In the instant case, the district court did not base its decision on the lone fact of
conviction. Instead, the court reviewed multiple pieces of evidence, including a statement signed
by the victim, the state appellate opinion and its recitation of facts elicited at trial, a prosecution
report, and the state judgments of conviction. On that basis, the district court concluded that
Defendant’s “history and characteristics” warranted imposing a sex-offender evaluation. This
Court cannot draw a “definite and firm conviction that the [district] court . . . committed a clear
 No. 16-6410                       United States v. Childress                              Page 9


error of judgment in the conclusion it reached upon a weighing of the relevant factors” or that “it
improperly applie[d] the law or use[d] an erroneous legal standard.” Hundley, 625 F. App’x at
276.

        2. The evidence of Defendant’s misconduct was sufficiently reliable for the district
           court to justify imposing the special condition.

        Defendant next argues that even if the district court could base the special condition on
the evidence surrounding his incest and aggravated assault convictions, such evidence was
insufficiently reliable to justify requiring a psychosexual evaluation. Specifically, Defendant
emphasizes that the Tennessee Court of Criminal Appeals was required to view the evidence in
the light most favorable to the prosecution, and yet it nevertheless concluded that the evidence of
Defendant’s guilt “could hardly be said to be overwhelming.” Childress, 2015 WL 7575328, at
*10. But Defendant fails to recognize this statement’s procedural context. The court was
discussing whether the admission of Defendant’s unconstitutionally obtained incriminating
statement constituted harmless error, and it concluded that, without the statement, the evidence
of Defendant’s guilt was not so overwhelming as to render the statement inconsequential to the
verdict.

        Next, Defendant argues that “the information is all varying levels of hearsay[.]” But
Defendant concedes in the next sentence that the evidence rules do not apply at sentencing
proceedings, and Defendant did not contest the veracity or reliability of that evidence at the time
of hearing. In short, the government presented evidence indicating that Defendant engaged in
sexual misconduct with his minor half-sister and, absent any contradictory evidence, the district
court reasonably concluded that Defendant had, in fact, committed sexual misconduct.
Therefore, the court was within its discretion to impose a special condition requiring Defendant
to undergo a psychosexual assessment.

                                        CONCLUSION

        The district court did not abuse its discretion by requiring Defendant to undergo a
psychosexual evaluation as a special condition of his supervised release. We therefore AFFIRM
the district court’s order.
