                                                                FILED
                                                    United States Court of Appeals
                                    PUBLISH                 Tenth Circuit

               UNITED STATES COURT OF APPEALS December 30, 2014
                                                        Elisabeth A. Shumaker
                            TENTH CIRCUIT                   Clerk of Court



UNITED STATES OF AMERICA,

            Plaintiff - Appellee,

v.                                              No. 13-5045

JAMES HOWARD BURNS,

           Defendant - Appellant.


             Appeal from the United States District Court
               for the Northern District of Oklahoma
                  (D.C. No. 4:12-CR-00053-CVE-1)


Barry L. Derryberry, Office of the Federal Public Defender, Tulsa,
Oklahoma (Julia L. O’Connell, Federal Public Defender, and Stephen J.
Greubel, Assistant Federal Public Defender, Tulsa, Oklahoma, on the
briefs) for Appellant-Defendant.

Leena Alam, Assistant United States Attorney, Tulsa, Oklahoma (Danny C.
Williams, Sr., United States Attorney, and Matthew P. Cyran, Assistant
United States Attorney, Tulsa, Oklahoma, on the brief) for Appellee-
Plaintiff.



Before GORSUCH, SEYMOUR, and BACHARACH, Circuit Judges.


BACHARACH, Circuit Judge.
      Mr. James Burns was convicted of possession and attempted

possession of child pornography. See 18 U.S.C. § 2252(a)(4)(B), (b)(2).

He was sentenced to 63 months in prison, followed by 5 years of

supervised release. This appeal involves one of the conditions of his

supervised release. That condition requires approval of the probation

department before Mr. Burns can have any contact with minors, including

his youngest daughter (S.B.).

      This restriction intrudes on Mr. Burns’s constitutional right to

familial association. Because of this intrusion on a constitutional right,

the district court should have made particularized findings before

restricting Mr. Burns’s contact with his daughter. Because the district

court failed to make these findings, we reverse on plain error. 1

I.    Plain Error

      Because Mr. Burns did not object to the condition in district court,

we review only for plain error. United States v. Mike, 632 F.3d 686, 691

(10th Cir. 2011). To establish plain error, Mr. Burns must show an error

that is plain, that affects substantial rights, and that seriously affects the

fairness, integrity, or public reputation of judicial proceedings. United

States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir. 2005).




1
     The district court’s error was understandable because of defense
counsel’s failure to object.


                                        2
      Mr. Burns has established plain error. The district court restricted

his contact with a family member without making the constitutionally

required findings. If the court had addressed these findings, there is a

reasonable probability that the court wouldn’t have restricted Mr. Burns’s

contact with S.B. Thus, we vacate the restriction that requires probation

office approval for Mr. Burns to contact his daughter and remand for

reconsideration of this restriction.

      A.    Error

      Mr. Burns has shown that the district court made an error. 2

      A district court has broad discretion to impose conditions on

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

2011). But when a court imposes a special condition that invades a

fundamental right or liberty interest, the court must justify the condition

with compelling circumstances. Id. at 1284.

      Mr. Burns has a fundamental liberty interest that is invaded by the

special condition, for “a father has a fundamental liberty interest in

maintaining his familial relationship with his [child].” United States v.

Edgin, 92 F.3d 1044, 1049 (10th Cir. 1996). Thus, the circumstances had


2
      In oral argument, the government argued for the first time that the
claim is precluded under the invited error doctrine. Oral Arg. 17:28-44.
But, the government had not raised this argument in its brief. Thus, the
government waived reliance on the invited error doctrine. See United
States v. Rivera-Nevarez, 418 F.3d 1104, 1112 n.2 (10th Cir. 2005)
(“[I]ssues raised for the first time at oral argument are waived.”).


                                       3
to be compelling before the district court could restrict Mr. Burns’s contact

with S.B. See United States v. Lonjose, 663 F.3d 1292, 1303 (10th Cir.

2011) (stating that a similar condition interfered with the right of familial

association); Edgin, 92 F.3d at 1049 (remanding for reconsideration of a

sentence when the court prohibited contact without justification).

      The district court failed to make the required findings, as the

government conceded in oral argument. Oral Arg. 23:38-47; 31:00-22.

Thus, the district court erred by failing to justify the invasion on Mr.

Burns’s fundamental right of familial association.

      B.    Plain

      Mr. Burns must also show that the error was plain. “An error is plain

if it is ‘clear and obvious under current law.’” United States v. Brown, 316

F.3d 1151, 1158 (10th Cir. 2003) (quoting United States v. Fabiano, 169

F.3d 1299, 1302-03 (10th Cir. 1999)).

      Our precedents unambiguously require supporting findings when

courts impose special conditions of supervised release. Edgin, 92 F.3d at

1049; United States v. Smith, 606 F.3d 1270, 1283 (10th Cir. 2010); United

States v. Hahn, 551 F.3d 977, 982-83 (10th Cir. 2008). This precedent was

“clear and obvious” when Mr. Burns was sentenced in April 2013. Thus,

the error was plain under current law.




                                      4
      C.    Affects Substantial Rights

      Mr. Burns has satisfied his burden to show that the court’s error

affects his substantial rights. But for the district court’s error, a

reasonable probability exists that the court would not have restricted Mr.

Burns’s contact with S.B.

      An error affects substantial rights if there is a reasonable probability

that the error affected the outcome of the proceedings. United States v.

Marcus, 560 U.S. 258, 262 (2010). In the sentencing context, we ask: Is

there a reasonable probability that but for the court’s error, Mr. Burns

would have received a lesser sentence? See United States v. Trujillo-

Terrazas, 405 F.3d 814, 819 (10th Cir. 2005) (reviewing an application of

the sentencing guidelines for plain error).

      To resolve this question, we analyze the requirements for imposing a

special condition of supervised release. Courts may impose a special

condition if two requirements are met:

      1.    The condition is reasonably related to the nature and
            circumstances of the offense and the history and characteristics
            of the defendant.

      2.    The condition involves no greater deprivation of liberty than is
            reasonably necessary.

United States v. Hahn, 551 F.3d 977, 983 (10th Cir. 2008). To be valid,

the condition must satisfy both requirements. Hahn, 551 F.3d at 983-84.




                                       5
      The condition likely fails under the second requirement. At

sentencing, neither the pretrial services officer nor government counsel

spoke of a need to restrict Mr. Burns’s right to visit his daughter. 3 As a

result, if the district court had addressed the issue, it probably would not

have restricted contact with S.B.

      Because of the burden on Mr. Burns’s constitutional right of familial

association, the restriction is valid only if Mr. Burns presents a danger to

S.B. United States v. Lonjose, 663 F.3d 1292, 1303 (10th Cir. 2011). But,

the record is not sufficient for us to make this determination in the first

instance. There is no evidence that Mr. Burns has abused or sexually

molested children, and the record indicates that Mr. Burns has a positive

relationship with four of his five children. II App. at 8-9. Thus, there was

little to support a restriction on Mr. Burns’s contact with S.B.

      The government argues that the condition was appropriate because it

provides an alternative for Mr. Burns “to pursue contact with his daughter,

while still providing needed protection for her and other children.”

Aplee’s Br. at 16. But the district court probably would have rejected this


3
      The presentence report referred to the possibility of special
conditions, but did not identify them. Instead, the presentence report
referred to the “Special Sex Offender Conditions.” These conditions were
not listed in the presentence report. Instead, the document cited the
court’s website for a list of the conditions. The website contains a list of
potential special conditions listed in a general order issued by the district
court in 2008. See In re Special Condition of Probation & Supervised
Release, Gen. Order No. 08-3 (N.D. Okla. Mar. 28, 2008).


                                       6
alternative in light of the absence of any evidence or argument on a need to

protect S.B. from Mr. Burns. See Lonjose, 663 F.3d at 1303 (stating that a

restriction on contact with the defendant’s young relatives violated the

Constitution notwithstanding the allowance of contact upon permission by

a probation officer); 4 see also United States v. Doyle, 711 F.3d 729, 736

(6th Cir. 2013) (holding that the imposition of special conditions of

supervised release for a sex offender, without the required findings,

affected the defendant’s substantial rights because a reasonable probability

existed that the court may not have imposed the special conditions if it had

explained the basis for the conditions or made sure that the record

supported the conditions); United States v. Perazza-Mercado, 553 F.3d 65,

78 (1st Cir. 2009) (holding that the erroneous imposition of a condition of

supervised release, which banned possession of all pornography by a sex

offender, affected the defendant’s substantial rights because the lack of

explanation for the ban created a reasonable probability that the court

might not have imposed the condition if it had explained the basis for the

condition or made sure that “the record illuminated the basis for the

condition”).




4
     The author of the Lonjose opinion was the judge who imposed Mr.
Burns’s sentence.


                                      7
      D.    Seriously Affects Judicial Proceeding

      Finally, Mr. Burns has shown that the error “‘seriously affects the

fairness, integrity, or public reputation of judicial proceedings.’” United

States v. Rosales-Miranda, 755 F.3d 1253, 1262 (10th Cir. 2014) (quoting

United States v. Figueroa-Labrada, 720 F.3d 1258, 1266 (10th Cir. 2013)).

      As discussed above, the district court likely would have softened the

contact restrictions if the issue had been raised. As a result, the error

seriously affected the fairness and integrity of the proceedings. See United

States v. Doyle, 711 F.3d 729, 736 (6th Cir. 2013) (holding that the

imposition of special conditions of supervised release for a sex offender,

without the required findings, affected the “fairness, integrity, or public

reputation of the proceedings because these conditions were likely more

severe than the ones the district court would have imposed had it fulfilled

its obligation to explain its reasoning for imposing any special

conditions”).

      Because the error undermines the fairness, integrity or public

reputation of judicial proceedings, we conclude that Mr. Burns has

satisfied the final prong of plain-error review.

II.   Conclusion

      The district court committed plain error by restricting Mr. Burns’s

contact with his daughter without the required findings. Thus, we remand




                                      8
for reconsideration of the supervised-release condition requiring Mr. Burns

to obtain permission from the probation office before he can contact S.B.




                                     9
