                                                                                 FILED
                                                                     United States Court of Appeals
                                      PUBLISH                                Tenth Circuit

                      UNITED STATES COURT OF APPEALS                          May 6, 2020

                                                                        Christopher M. Wolpert
                            FOR THE TENTH CIRCUIT                           Clerk of Court
                        _________________________________

 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                          No. 19-8044

 JOSHUA SCOTT RICHARDS,

       Defendant - Appellant.
                      _________________________________

                     Appeal from the United States District Court
                             for the District of Wyoming
                         (D.C. No. 2:19-CR-00015-SWS-1)
                       _________________________________

Submitted on the briefs:*

Virginia L. Grady, Federal Public Defender, and John C. Arceci, Assistant Federal Public
Defender, Denver, Colorado, for Defendant-Appellant.

Mark A. Klaassen, United States Attorney, and Timothy J. Forwood, Assistant United
States Attorney, Cheyenne, Wyoming, for Plaintiff-Appellee.
                       _________________________________

Before BACHARACH, BALDOCK, and MORITZ, Circuit Judges.
                 _________________________________

BALDOCK, Circuit Judge.
                    _________________________________


      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument.
      Defendant–Appellant Joshua Richards pleaded guilty to one count of accessing

with intent to view child pornography in violation of 18 U.S.C. §§ 2252(a)(5)(B) and

(b)(2). He received a sentence of twenty-four months’ imprisonment followed by five

years of supervised release. The district court imposed several special conditions of

supervised release, which, as relevant here, relate to drugs and alcohol and require

Defendant to submit to polygraph testing. On appeal, Defendant argues the district

court erred in imposing these special conditions. He also challenges the length of his

prison sentence as substantively unreasonable. Exercising jurisdiction under 28 U.S.C.

§ 1291 and 18 U.S.C. § 3742(a), we affirm.

                                           I.

      In 2018, the Wyoming Division of Criminal Investigation (DCI) obtained a

search warrant to review the contents of Defendant’s Tumblr account.1 During the

search and subsequent investigation, DCI agents discovered Defendant had re-blogged

videos and images of child pornography to his private Tumblr account so he could later

access and view the materials. Ultimately, Defendant was charged with and pleaded

guilty to one count of accessing with intent to view child pornography in violation of

18 U.S.C. §§ 2252(a)(5)(B) and (b)(2).

      The probation office prepared a Presentence Investigation Report (PSR), which

calculated Defendant’s total offense level as twenty-eight and his criminal history


      1
        Tumblr is an online microblogging and social media website where users post
images, videos, text, and other content to their user profiles. Tumblr users can also, as
Defendant did with the child pornography he found on the website, “reblog” posted
material to their private Tumblr account so they can conveniently access it at any time.
                                           2
category as I. According to the sentencing guidelines, Defendant’s total offense level

of twenty-eight and category I criminal history resulted in an advisory guidelines

sentencing range of 78–97 months’ imprisonment. Defendant moved for a downward

variance based on mitigating circumstances, including his otherwise exemplary life,

low risk to reoffend, commitment to treatment, financial and caretaker responsibilities

for his wife and family, and history of suffering sexual abuse as a child. These

circumstances, Defendant argued, warranted a variance to a time-served sentence. The

Government, however, requested a sentence of two years’ imprisonment.

      At sentencing, the district court first declined to apply a two-level enhancement

for the use of a computer in committing the offense. Applying this offset, the district

court advised that “a total offense level of 26 with a Criminal History Category I . . .

establishes a 63- to 71-month advisory guideline range.”2 After hearing the parties’

arguments and “considering all the [§] 3553 factors,” the district court determined “a

sentence of 24 months is minimally sufficient but not greater than necessary to

accomplish the objectives under [§] 3553.” Accordingly, the district court sentenced

Defendant to twenty-four months’ imprisonment plus five years of supervised release.

      For the term of supervised release, the district court imposed three special

conditions relating to drugs and alcohol based on Defendant’s “history of substance



      2
        As Defendant correctly points out, the upper end of the advisory guidelines
sentencing range for a total offense level of 26 and criminal history category of I is 78
months, not 71 months. See U.S.S.G. Ch. 5, Pt. A, Sentencing Table. The district
court’s misstatement in announcing the advisory guideline range, however, is of no
consequence in our resolution of this appeal.
                                           3
abuse.” These conditions (1) require participation in a substance abuse treatment

program; (2) authorize drug and alcohol testing at the probation office’s direction;

(3) prohibit the consumption or possession of alcohol and other intoxicants, and bar

Defendant from entering establishments whose primary income is derived from alcohol

sales. Defendant objected to these conditions “given the remoteness of any [substance]

abuse.” The district court overruled Defendant’s objection, noting “the background

and history is such that it is appropriate to impose those limitations and constraints.”

      The district court also imposed a special condition requiring Defendant to

submit to periodic polygraph testing to ensure compliance with his supervised release

and sex offender treatment program. Defendant objected to this condition on Fifth

Amendment grounds. He argued the district court should include language protecting

Defendant’s privilege against self-incrimination and ensuring no violation proceedings

or criminal prosecutions would arise based on the polygraph examination. The district

court overruled the objection, but it did modify the condition and ordered that:

      any polygraph results or testing as part of the sex offender program or
      supervised release may not be used for purposes of instituting or
      instigating criminal charges. However, they may properly be used for the
      prosecution – or filing of a petition to revoke supervised release. And
      that’s one of the fundamental purposes that they are properly utilized for.

Defendant objected to the modified condition on the same grounds, and the district

court again overruled the objection.

      Defendant now appeals. He argues the district court erred in imposing the drug

and alcohol conditions, and he contends the polygraph requirement encroaches upon



                                            4
his Fifth Amendment privilege against self-incrimination. In addition, Defendant

argues his two-year sentence is substantively unreasonable.

                                          II.

      On appeal, Defendant first challenges the district court’s imposition of the

special conditions of supervised release: (1) relating to drugs and alcohol; and

(2) requiring him to undergo polygraph testing. We address each challenge in turn.

                                          A.

      Defendant argues the special conditions relating to drugs and alcohol are

unreasonable because any substance abuse occurred nearly twenty years ago and is too

remote to support the conditions.      Because Defendant objected to these special

conditions at sentencing, we review the district court’s decision to impose the

conditions for abuse of discretion. United States v. Wayne, 591 F.3d 1326, 1331 (10th

Cir. 2010). “[W]e will not disturb the district court’s ruling absent a showing it was

based on a clearly erroneous finding of fact or an erroneous conclusion of law or

manifests a clear error of judgment.” United States v. Bear, 769 F.3d 1221, 1226 (10th

Cir. 2014) (quoting United States v. Batton, 602 F.3d 1191, 1196 (10th Cir. 2010)).

      While a district court has broad discretion in fashioning special conditions of

supervised release, Congress has limited this discretion in 18 U.S.C. § 3583(d).

Wayne, 591 F.3d at 1331–32. Such conditions must be reasonably related to one of the

following sentencing factors: (1) the nature and circumstances of the offense and the

defendant’s history and characteristics; (2) the deterrence of criminal conduct; (3) the

protection of the public from further crimes by the defendant; and (4) the defendant’s

                                           5
educational, vocational, medical, or other correctional needs. Id. (citing 18 U.S.C.

§§ 3583(d)(1), 3553(a)(1), (a)(2)(B)–(D)).     The conditions also must involve “no

greater deprivation of liberty than is reasonably necessary” to deter criminal activity,

protect the public, and promote the defendant’s rehabilitation. 18 U.S.C. § 3583(d)(2)

(citing §§ 3553(a)(2)(B)–(D)). And the conditions must be “consistent with any

pertinent policy statements issued by the Sentencing Commission.” Id. § 3583(d)(3).

      On the record before us, we cannot say the district court abused its discretion or

manifested a clear error of judgment in imposing the challenged conditions relating to

drugs and alcohol. It is true no drugs or alcohol were involved in the offense of

conviction, and Defendant has never sought treatment for substance abuse. But the

record reflects, and Defendant does not dispute, that he does have a history of substance

abuse. See United States v. Jordan, 485 F.3d 982, 984–85 (7th Cir. 2007) (explaining

drug and alcohol treatment and use conditions “are not necessarily reserved only for

individuals with extensive personal histories of drug or alcohol abuse”).

      Based on the PSR alone, Defendant’s drug and alcohol problems may appear

divorced from the current offense and remote in time. But these were not the only facts

before the district court. The evidence in the record regarding Defendant’s decision to

use child pornography instead of alcohol to deal with his frustration and stress rebuts

the assertion that his history of substance abuse is too temporally remote to support the

challenged conditions. Cf. United States v. Ford, 882 F.3d 1279, 1288 (10th Cir. 2018)

(explaining defendant’s background supported conclusion a nineteen-year-old sex



                                           6
crime conviction was reasonably related to the imposition of sex offender conditions

at sentencing for a non-sex crime).

      In explaining his criminal conduct during his psychosexual evaluation,

Defendant “talk[ed] about alcoholism ‘running in the family’” and how “he assumed

he could deal with his frustration by looking at pornography rather than drinking.”

Defendant admitted “[p]ornography use had become a daily practice for him in the

months previous to his criminal investigations[,]” and he “supposed that pornography

would not develop into anything that would cause him legal problems, nor that it would

be addictive to him.” Moreover, in a letter to the district court, Defendant’s wife

corroborated these statements by indicating she was “thankful that [Defendant] turned

to porn rather than alcohol and/or drugs” as “an outlet for his stress[.]”

      Given Defendant’s past substance abuse in combination with the evidence

concerning his decision to use child pornography rather than alcohol to deal with his

frustration, the challenged conditions are reasonably related to his history and

characteristics. Further, contrary to Defendant’s argument, the special conditions are

not inconsistent with the sentencing guideline’s policy statement for substance abuse.

See U.S.S.G. § 5D1.3(d)(4) (recommending treatment and use conditions “if the court

has reason to believe that the defendant is an abuser of narcotics, other controlled

substances or alcohol[,]” but also providing such conditions “may otherwise be

appropriate in particular cases”). Based on Defendant’s history and background, the

district court could have reasonably concluded conditions preventing further use of

drugs and alcohol will help ensure Defendant does not trade one vice for another and

                                            7
that he will remain on the path to rehabilitation during his supervised release. Because

the alcohol and drug conditions do not directly conflict with the relevant policy

statement in the sentencing guidelines, the district court’s decision to impose the

conditions was not manifestly unreasonable. See Bear, 769 F.3d at 1230 (explaining

§ “3583(d)(3) mandates only that the conditions not directly conflict with the policy

statements”).

                                           B.

      We next address Defendant’s argument regarding the district court’s inclusion

of periodic polygraph testing as a special condition of his supervised release. Because

Defendant argues, as he did in the district court, the polygraph condition violates his

Fifth Amendment right against self-incrimination, we review his challenge de novo.

United States v. Von Behren, 822 F.3d 1139, 1143–44 (10th Cir. 2016) (explaining we

review de novo matters of constitutional law).         Thus, “we will take a ‘fresh,

independent’ look at the question at bar.” Id. at 1144 (quoting United States v. Rivas–

Macias, 537 F.3d 1271, 1276 (10th Cir. 2008)).

      The special condition Defendant challenges requires him “to submit to periodic

polygraph testing as a means to ensure that he is in compliance with the requirements

of his[ ] supervision or treatment program.” While “[t]he results of such polygraph

testing cannot be used against [Defendant] in a new criminal proceeding, [they] can be

used in a violation proceeding in this criminal case.” Defendant argues this condition

violates the Fifth Amendment because it authorizes revocation of his supervised

release based on a valid invocation of his privilege against self-incrimination.

                                           8
      “To qualify for the Fifth Amendment privilege, a communication must be

testimonial, incriminating, and compelled.” Id. (quoting Hiibel v. Sixth Judicial Dist.

Court of Nevada, Humboldt County, 542 U.S. 177, 189 (2004)). “There is no doubt

that answering questions during a polygraph examination involves a communicative

act which is testimonial.” Id. And, as the Government recognizes, the polygraph

examination to which Defendant must submit might elicit potentially incriminating

statements that could “provide a ‘lead’ or ‘a link in the chain of evidence needed to

prosecute the’ speaker.” Id. at 1145 (quoting United States v. Powe, 591 F.2d 833, 845

n.36 (D.C. Cir. 1978)). After all, the purpose of a polygraph test is not to elicit honest

responses to innocuous questions such as, for example, whether Defendant enjoyed his

morning coffee.

      The polygraph condition at issue, however, fails to satisfy the compulsion

element of Defendant’s Fifth Amendment claim. The Supreme Court has held that if

the “state, either expressly or by implication, asserts that invocation of the privilege

would lead to revocation of probation, it would have created the classic penalty

situation, the failure to assert the privilege would be excused, and the probationer’s

answers would be deemed compelled and inadmissible in a criminal prosecution.”

Minnesota v. Murphy, 465 U.S. 420, 435 (1984). Put another way, “a threat to revoke

one’s probation for properly invoking his Fifth Amendment privilege is the type of

compulsion the state may not constitutionally impose.” Von Behren, 822 F.3d at 1150.

      We recently addressed the compulsion element of a Fifth Amendment claim in

United States v. Von Behren, where a condition of supervised release required the

                                            9
defendant to answer four specific, incriminating questions about his past sexual

activity. Id. at 1145. There, the “government asserted . . . it would seek Mr. Von

Behren’s remand to prison if he refused to answer [the] incriminating sexual polygraph

questions because that refusal would (and did) ultimately result in his termination from

the sex offender treatment program.” Id. at 1150. We held this “threat constituted

unconstitutional compulsion within the meaning of the Fifth Amendment.” Id.

      In reaching our conclusion, we distinguished the facts in Mr. Von Behren’s case

from those in Minnesota v. Murphy, where the Supreme Court concluded no

unconstitutional compulsion existed. 822 F.3d at 1149–51; accord Murphy, 465 U.S.

at 436–39. “Fifth Amendment jurisprudence did not apply to Mr. Murphy[,]” we

explained, “because his probation officer neither affirmatively stated nor implied that

Mr. Murphy’s assertion of the privilege would result in the revocation of his

probation.” Von Behren, 822 F.3d at 1149 (citing Murphy, 465 U.S. at 437–38). “In

other words, there was no threat.” Id.

      The Supreme Court’s decision in Murphy and our analysis in Von Behren make

this issue an easy one to resolve. Here, neither the Government nor any other entity

has threatened—explicitly or by implication—to revoke Defendant’s supervised

release if he refuses to answer a question during a polygraph examination on valid Fifth

Amendment grounds. Nothing in the record suggests the Government has attempted

or intends “to take the extra, impermissible step” of compelling Defendant to

incriminate himself. See Murphy, 465 U.S. at 436. To the contrary, the Government



                                          10
affirms in its brief that “Defendant faces no risk of revocation based on validly

asserting his privilege[ ] because such a revocation would be unlawful.”

       Nor does the polygraph condition, on its face, spell out that forbidden penalty.

The condition provides “[t]he results of [Defendant’s] polygraph testing . . . can be

used in a violation proceeding in this criminal case.” It does not follow from this

language, however, that the condition permits revocation of Defendant’s supervised

release based on his refusal to answer polygraph questions on valid Fifth Amendment

grounds. We do not read the district court’s order to allow—much less endorse—the

imposition of such a plainly unconstitutional penalty. Cf. United States v. Mike, 632

F.3d 686, 696 (10th Cir. 2011) (interpreting conditions of supervised release narrowly

so as not to implicate significant liberty interests); see also United States v. Davis, 242

F.3d 49, 52 (1st Cir. 2001) (per curiam) (construing special condition of supervised

release to avoid Fifth Amendment concerns).

       While Defendant would have preferred the polygraph condition to include

language ensuring the implementation of this requirement will comply with the Fifth

Amendment, the absence of such limiting language does not render the condition

unconstitutional or otherwise infirm. See United States v. Pabon, 819 F.3d 26, 29, 34

(1st Cir. 2016) (concluding polygraph-testing condition without limiting language did

not violate the Fifth Amendment because it did not require the defendant to answer

incriminating questions); United States v. Lee, 315 F.3d 206, 212 (3d Cir. 2003)

(same). The Fifth Amendment—not the terms of a special condition—guarantees

Defendant’s privilege against self-incrimination. Accordingly, Defendant remains free

                                            11
to legitimately exercise his Fifth Amendment right without facing the risk that a valid

assertion of his privilege and refusal to incriminate himself during a polygraph

examination will result in revocation of his supervised release.

      If, at a later date, the Government changes its position and threatens to revoke

Defendant’s supervised release based on his valid invocation of his privilege against

self-incrimination during a polygraph examination, Defendant may raise a Fifth

Amendment challenge at that time. See United States v. Zinn, 321 F.3d 1084, 1089

(11th Cir. 2003) (“By determining a challenge to the polygraph testing requirement to

be generally ripe, however, we do not imply that all specific challenges to the

implementation of this condition are necessarily ripe.”). But until such an eventuality

occurs (and hopefully it never does), we can only decide whether the challenged

polygraph condition facially violates the Fifth Amendment. We conclude it does not.

                                          III.

      Defendant’s final argument on appeal is that the twenty-four month sentence the

district court imposed is substantively unreasonable.      We review the substantive

reasonableness of a sentence under a deferential abuse-of-discretion standard. United

States v. Cookson, 922 F.3d 1079, 1090–91 (10th Cir. 2019). The district court abuses

its discretion when it imposes a sentence that is “arbitrary, capricious, whimsical, or

manifestly unreasonable” given “all the circumstances of the case in light of the factors

set forth in 18 U.S.C. § 3553(a).” Id. (quoting United States v. Friedman, 554 F.3d

1301, 1307 (10th Cir. 2009)).



                                           12
      Applying the sentencing guidelines, the district court determined Defendant’s

total offense level of twenty-six and his criminal history category of I established an

advisory guidelines range of 63–71 months’ imprisonment. But the district court

sentenced Defendant to 24 months’ imprisonment, an amount below the advisory

guidelines range, based on the circumstances of the case. We apply a “rebuttable

presumption of reasonableness to a below-guideline sentence challenged by the

defendant as unreasonably harsh.” United States v. Balbin–Mesa, 643 F.3d 783, 788

(10th Cir. 2011). Defendant may rebut this presumption by demonstrating the sentence

is unreasonable when viewed against the factors described in § 3553(a). See United

States v. Craig, 808 F.3d 1249, 1261 (10th Cir. 2015).

      As a preliminary matter, Defendant argues (only to preserve the issue) that his

sentence is manifestly unreasonable because U.S.S.G. § 2G2.2, the relevant sentencing

guideline for Defendant’s offense, is inherently flawed and lacks an empirical basis.

We have previously heard and rejected this argument. United States v. Blair, 933 F.3d

1271, 1274 (10th Cir. 2019). Thus, regardless of the alleged lack of empirical support

for § 2G2.2, we apply the presumption of reasonableness to Defendant’s sentence. Id.

      Defendant contends the district court failed to give sufficient weight to, among

other things, his lack of criminal history and the fact a shorter period of incarceration

would have afforded adequate deterrence because he had never before served any time

in custody. We disagree. The district court accounted for various mitigating factors,

including Defendant’s otherwise law-abiding life, his history of suffering sexual abuse



                                           13
as a child, and the limited period of offense conduct. And based on these mitigating

circumstances, the district court varied significantly downward.

      But the district court also determined the nature and circumstances of the

offense—namely, the amount and types of child pornography Defendant accessed—

were important factors that weighed in favor of a custodial sentence. As the court

explained, Defendant’s behavior “is victimizing, it is troubling, and it’s behavior that

deserves and requires punishment.” In short, the personal characteristics Defendant

highlights on appeal are insufficient to rebut the presumption of reasonableness we

must apply to his below-guideline sentence.         We thus conclude, given all the

circumstances of the case, the district court did not abuse its discretion in weighing the

§ 3553(a) factors and imposing a sentence of twenty-four months’ imprisonment.

                                          ***

      For the foregoing reasons, we AFFIRM the judgment of the district court.




                                           14
