                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 09-3710
                                      ____________

                            UNITED STATES OF AMERICA

                                             v.

                                    JASON SCALISE,

                                                       Appellant
                                      ____________

                     On Appeal from the United States District Court
                         for the Western District of Pennsylvania
                                  (D.C. No. 07-cr-00052)
                     District Judge: Honorable Maurice B. Cohill, Jr.
                                      ____________

                       Submitted Under Third Circuit LAR 34.1(a)
                                   October 19, 2010

      Before: HARDIMAN, GREENAWAY, JR. and NYGAARD, Circuit Judges.

                                (Filed: October 27, 2010)
                                      ____________

                               OPINION OF THE COURT
                                    ____________

HARDIMAN, Circuit Judge.

       Jason Scalise appeals the District Court’s judgment of sentence following his

guilty pleas to two counts: (1) receipt of child pornography; and (2) possession of child

pornography, in violation of 18 U.S.C. § 2252(a)-(b). We will affirm.
                                            I.

       Because we write for the parties, we recount only the essential facts and procedural

history.

       On October 18, 2007, the Federal Bureau of Investigation searched Scalise’s

residence after a computer technician reported that he had found files containing child

pornography on the hard drive of Scalise’s computer. The FBI discovered 33 movie clips

and another 43 disks containing approximately 200 movies and 500 still images of child

pornography.

       After admitting to downloading and sharing child pornography on Limewire two

to three times per week, Scalise pleaded guilty to: Receipt and Attempted Receipt of

Material Depicting the Sexual Exploitation of a Minor, in violation of 18 U.S.C.

§ 2252(a)(2) and § 2252(b)(1), and Possession and Attempted Possession of Material

Depicting the Sexual Exploitation of a Minor, in violation of 18 U.S.C. § 2252(a)(4)(B)

and § 2252(b)(2).

       The District Court determined that Scalise’s base offense level was 22, and his

criminal history category was I. Scalise received a three-level reduction for acceptance of

responsibility, and a total of 18 levels of enhancements pursuant to § 2G2.2 of the

Guidelines—for distribution in exchange for a thing of value (5 levels), material

involving prepubescent minors (2 levels), images containing sadistic or violent acts (4

levels), use of a computer (2 levels), and possession of more than 600 images (5 levels).

Thus, Scalise’s total offense level reached 37, resulting in a Guidelines imprisonment
                                             2
range of 210 to 262 months. Because Scalise’s statutory range was 60-240 months, his

final Guidelines range was 210-240 months.

       Although Scalise conceded that his Guidelines range was calculated properly, he

argued in his written position with respect to sentencing factors that his Guidelines range

“is so far beyond the circumstances of his case as to be unjustified and unwarranted.”

Scalise also contended that “there appears to be no rhyme, reason or justification for an

almost arbitrary increase from a base offense level of 22 and a sentence of 41 to 51

months to offense level 37 or 210 to 262 months.”

       The District Court sentenced Scalise to 168 months in prison on Count One and

120 months on Count Two, to be served concurrently, followed by ten years of supervised

release, which included the following special condition:

       The defendant shall not associate with children under the age of 18,
       except in the presence of a responsible adult who is aware of the
       nature of the defendant’s background and current offense and who
       had been approved by the probation officer.

       The District Court varied downward from the Guidelines range, finding that USSG

§ 2G2.2 “diverges significantly from the Sentencing Commission’s typical empirical

approach and produces a sentence greater than necessary to provide punishment.” App.

78-79 (quoting United States v. Hanson, 561 F. Supp. 2d 1004, 1008 (E.D. Wis. 2008)).

Considering Scalise’s lack of a criminal history, his supportive family structure, his

demonstration of remorse for the crimes he committed, and his decision to seek out

psychological sex offender treatment, the District Court reasoned that a sentence of 210

                                             3
months in prison “would be over the top.” The Court then concluded that a sentence of

168 months “adequately addresses the nature and the circumstances of this offense, as

well as the history and background of the Defendant.”

                                             II.

       Scalise timely appealed, claiming the District Court committed procedural error

by: (1) relying on allegedly inaccurate and disparaging statements made by the FBI agent

and prosecutor at sentencing; (2) failing to rule on his motion to depart from the

Guidelines based on a psychological finding that he “does not meet the criteria of

pedophilia”; and (3) failing to meaningfully address his non-frivolous arguments

challenging the validity of § 2G2.2’s enhancements for specific offense characteristics.

Scalise also claims his sentence was substantively unreasonable because it was “greater

than necessary . . . to comply with the purposes of sentencing.”

                                              A.

       We review the procedural and substantive reasonableness of Scalise’s sentence

under an abuse of discretion standard. United States v. Booker,,543 U.S. 220, 261 (2005);

United States v. Tomko, 562 F.3d 558, 577 n.16 (3d Cir. 2009) (en banc).

       Conceding that the District Court accurately calculated his Guidelines range as

required by the first step of United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006),

Scalise claims the District Court failed at step two when it ignored his counsel’s “request”

for a downward departure based on his psychologist’s finding that he “does not meet the

DSM-IV criteria for Pedophilia.” But the record reflects no such formal request for
                                             4
departure. 1 Even had such a request been made, § 5K2.0 greatly limits the grounds for

departure and the fact that a defendant does not exhibit pedophilic tendencies is not one

of them.

       Scalise also claims the District Court erred at step three of Gunter. He cites as

procedural error the District Court’s consideration of improper testimony and its failure to

address his arguments regarding the flawed nature of § 2G2.2. Specifically, Scalise

contends the District Court should not have considered the FBI agent’s statement that,

given the number of images in Scalise’s collection, it was apparent that he had been

trading for a “fairly lengthy course of time.” In addition, Scalise argues that the Court

should not have taken into account the prosecutor’s assertions that Scalise’s collection of

adult female underwear was “extremely bizarre” and “an indicator of some deviate sexual

activity.” This argument is a non-starter because there is nothing inaccurate about these

statements: nine months can properly be characterized as a “lengthy period of time,” and

the “bizarreness” of Scalise’s behavior is a matter of opinion. Moreover, nothing in the

record suggests that the District Court relied on these statements in determining the

seriousness of Scalise’s offense.

       Nor are we persuaded by Scalise’s argument that the District Court failed to

       1
         We agree with the Government that the statement made by Scalise’s attorney that
a psychological report should “in the appropriate circumstances to be determined by the
Court, allow for a free fall, what it used to be called, now a departure [sic],” did not
amount to a formal departure request. Thus, Scalise’s reliance on United States v. Lofink
is misplaced. See 564 F.3d 232, 240 (3d Cir. 2009) (where the defendant formally moved
for a downward departure under § 5K2.13 of the Guidelines).
                                             5
adequately address his brief comments at sentencing regarding the validity of the

individual enhancements applicable to his case. A sentencing court must give

“meaningful consideration to all the sentencing factors in 18 U.S.C. § 3553(a),” United

States v. Olhovsky, 562 F.3d 530, 546 (3d Cir. 2009), and “the record must show a true,

considered exercise of discretion on the part of a district court, including a recognition of,

and response to, the parties’ non-frivolous arguments,” United States v. Jackson, 467 F.3d

834, 841 (3d Cir. 2006).

       Although Scalise states in his Reply Brief that his counsel discussed “at length”

the five individual sentencing enhancements applied to his case, we find only brief and

undeveloped references to a lack of empirical data supporting these “artificial increases.”

Scalise’s counsel made no attempt at sentencing to substantiate his claims, instead

arguing: “I don’t know [w]hat the empirical data or the scientific data or the

psychological data is—I don’t think there is any.”

       Given the lack of a factual record upon which to base its analysis, the District

Court’s decision not to address each applicable enhancement individually was not

procedural error. See United States v. Ausburn, 502 F.3d 313, 329 (3d Cir. 2007).

Moreover, while the District Court did not address each enhancement individually, it

agreed with Scalise that § 2G2.2 was not grounded in the Commission’s “typical

empirical approach.” See App. 78-79 (quoting Hanson, 561 F. Supp. 2d at 1008). For

that reason, the District Court varied downward.

       Thus, Scalise’s real argument is that the District Court’s analysis of the § 3553(a)
                                              6
factors yielded a higher sentence than Scalise desired. “The decision by the Court,

however, not to give . . . mitigating factors the weight that [Scalise] contends they deserve

does not render [his] sentence unreasonable.” United States v. Lessner, 498 F.3d 185,

204 (3d Cir. 2007) (citing United States v. Bungar, 478 F.3d 540, 546 (3d Cir. 2007)).

Because the Court adequately considered the § 3553(a) factors at step three, Scalise’s

term of incarceration was not imposed in a procedurally unreasonable way.

                                             B.

       Scalise also claims that his 168-month prison sentence, which “is closer to the

statutory maximum of 20 years than the mandatory minimum of five years” is

substantively unreasonable. We must affirm “unless no reasonable sentencing court

would have imposed the same sentence on that particular defendant for the reasons the

district court provided.” Tomko,,562 F.3d at 568.

       Our review of the record leads us to conclude that there was nothing substantively

unreasonable about the District Court’s imposition of a 168-month prison sentence.

Indeed, “the sentence as a whole reflects rational and meaningful consideration of the

factors enumerated in 18 U.S.C. § 3553(a).” Id. (quoting United States v. Grier, 475 F.3d

556, 571 (3d Cir. 2007) (en banc)). The fact that Scalise’s sentence is more than forty

months below the low end of the Guidelines range influences our decision as well.

       For the foregoing reasons, we hold that the District Court did not err with respect

to Scalise’s 168-month prison sentence.

                                            III.
                                             7
          Scalise also challenges the special condition of supervised release which restricts

his interaction with minors. Because Scalise did not object to the District Court’s

imposition of this special condition at the sentencing hearing, we review it for plain

error. 2 United States v. Russell, 564 F.3d 200, 203 (3d Cir. 2009).

          Although sentencing judges have “wide discretion in imposing supervised

release,” United States v. Crandon, 173 F.3d 122, 127 (3d Cir. 1999), cert. denied, 528

U.S. 855 (1999), any special conditions must be “reasonably related” to the goals of

deterrence, protection of the public, and rehabilitation of the defendant, and must

“involve[] no greater deprivation of liberty than is reasonably necessary” to meet these

goals. 18 U.S.C. § 3583(d)(1),(2). If a condition infringes on a fundamental

constitutional right, we will affirm only if the condition is “narrowly tailored and . . .

directly related to deterring [the offender] and protecting the public.” Crandon, 173 F.3d

at 128.

                                               A.


          2
         We use a four-prong analysis to determine whether the district court committed
plain error. An appellant must show: (1) an error was committed; (2) the error was plain;
(3) the error affected the defendant's substantial rights; and (4) the error “seriously affects
the fairness, integrity, or public reputation of judicial proceedings.” United States v.
Olano, 507 U.S. 725, 732 (1993). “A plainly erroneous condition of supervised release
will inevitably affect substantial rights, as a defendant who fails to meet that condition
will be subject to further incarceration.” United States v. Pruden, 398 F.3d 241, 251 (3d
Cir. 2005). Moreover, imposing a sentence not authorized by law “seriously affects the
fairness, integrity, and reputation of the proceedings.” Id. Thus, if we find that the
District Court plainly erred in imposing this supervised release condition, we must vacate
the condition.
                                                8
       Scalise contends that the District Court may not impose a supervised release

condition limiting his contact with minors without first making a factual finding that he

will pose an actual danger to minors upon his release.

       Although “courts of appeals have consistently required district courts to set forth

factual findings to justify special probation conditions,” United States v. Warren, 186

F.3d 358, 366 (3d Cir. 1999), “[w]here a sentencing court fails to adequately explain its

reasons for imposing a condition of supervised release or the condition’s relationship to

the applicable sentencing factors, we may nevertheless affirm the condition if we can

‘ascertain any viable basis for the . . . restriction in the record before the District Court . . .

on our own.’” United States v. Voelker, 489 F.3d 139, 143 (3d Cir. 2007) (quoting

Warren, 186 F.3d at 367).

       Here, the District Court failed to explain its reasons for imposing the special

condition limiting Scalise’s contact with minors. Nevertheless, we find adequate support

for the imposition of this condition in the record. Scalise was convicted of receipt and

possession of child pornography. Among the 700 or so images in his collection were a

number of depictions of severe child abuse. These facts alone provide a reasoned and

adequate basis for the imposition of this condition. See United States v. Loy, 237 F.3d

251, 269 (3d Cir. 2001).

                                                B.

       Scalise also claims that the condition restricting his contact with all minors upon

his release could be read to limit interaction with his future (as yet unborn) children. He
                                                9
argues that such an overbroad and vague condition might deter him from exercising his

constitutional right to procreation, see Skinner v. Oklahoma, 316 U.S. 535, 541 (1942),

and, should he have children, violate his fundamental right to familial integrity, see

Gruenke v. Seip, 225 F.3d 290, 303 (3d Cir. 2000).

       Recognizing the “severe intrusion” which could result from such an expansive

reading of this condition, we held in Loy that “absent a clearer sign from the District

Court, the condition should be construed to apply only to other people’s children.” 3 237

F.3d at 251, 270. Unlike in Voelker, where we found that the record supported a

construction of the condition restricting Voelker’s interactions with his own children,

here, nothing in the record supports such a finding. 489 F.3d at 154 (where the defendant

“jeopardized his minor daughter’s welfare by offering her for sex during an online

communication”). Indeed, as the Government concedes, the restriction here must be

interpreted to extend only to minors other than Scalise’s children. See also United States

v. Miller, 594 F.3d 172, 190-91 (3d Cir. 2010) (holding that a condition limiting Miller’s

contacts with “children under the age of 18 except for family members or children in the

presence of an adult who has been approved by the probation officer . . . appears to

accord with our precedent, address Miller’s overbreadth concerns, and satisfy the

Government.”).

       3
        Although we held in Loy that we will construe “no minors” conditions narrowly
to avoid any constitutional difficulty, we encourage sentencing courts to state specifically
whether such a condition will apply to a defendant’s children or other members of his
family.
                                             10
                                             C.

       Finally, Scalise argues the District Court improperly delegated judicial authority to

the probation officer by limiting his contact with minors except under the supervision of

persons approved in advance by the probation officer.

       “Probation officers have broad statutory authority to advise and supervise

probationers, and to ‘perform any other duty that the court may designate.’” United

States v. Pruden, 398 F.3d 241, 250 (3d Cir. 2005) (citing 18 U.S.C. § 3603(10)).

However, because probation officers are nonjudicial officers, they may not “decide the

nature or extent of the punishment imposed upon a probationer.” Id. In balancing the

“need for flexibility with the constitutional requirement that judges, not probation

officers, set the terms of a sentence,” we distinguish between judicial and administrative

authority as follows:

       If [the defendant] is required to participate in a mental health intervention
       only if directed to do so by his probation officer, then this special condition
       constitutes an impermissible delegation of judicial authority to the
       probation officer. On the other hand, if the District Court was intending
       nothing more than to delegate to the probation officer the details with
       respect to the selection and schedule of the program, such delegation was
       proper.

Id. (quoting United States v. Peterson, 248 F.3d 79, 85 (2d Cir. 2001)).

       In United States v. Heckman, 592 F.3d 400 (3d Cir. 2010), we vacated a condition

of supervised release which required the defendant to “follow the directions of the United

States Probation Office regarding any contact with children of either sex under the age of

18.” Id. at 411. Finding that this condition delegated complete discretion over
                                             11
Heckman’s contact with minors to the Probation Office, we held that the sentencing court

impermissibly abdicated its responsibility to set the conditions of his release. Unlike the

judicial power which was delegated in Heckman, the power to select a responsible

individual to facilitate and supervise a defendant’s interactions with minors is

administrative, more akin to selecting a defendant’s mental health program than directing

participation in one.

       We recognize, however, that in Voelker, we vacated as an “unbridled delegation of

authority” a condition similar to the one at issue here. 489 F.3d at 154. Animating our

decision in Voelker, however, was a concern that Voelker’s probation officer would hold

the “sole authority for deciding if [he] will ever have unsupervised contact with any

minor, including his own children, for the rest of his life.” Id. Whereas Voelker’s

condition threatened his lifelong relationship with his children, Scalise’s condition has a

more limited reach. The Government here concedes that Scalise’s condition will lift

within ten years of his release and will have no effect on his interactions with his own

children. See 489 F.3d at 154. Thus, Scalise’s liberty interest in associating freely with

minors will not be unduly burdened by the condition. 4

       For the reasons set forth above, we will affirm the judgment of the District Court.


       4
         We remain cognizant, however, of Voelker’s underlying concerns regarding the
potential for probation officers to abuse their discretion. Indeed, we see little practical
difference between a probation officer who flatly prohibits any contact with minors and
one who refuses to authorize a “responsible” adult to supervise interactions. However, if
upon his release, Scalise confronts this type of abuse, he remains able to petition the
District Court to amend his conditions of supervised release.
                                             12
