                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                 ______________

                                       No. 19-2438
                                     ______________

                            UNITED STATES OF AMERICA

                                              v.

                                CASEY CUNNINGHAM,
                                             Appellant
                                   ______________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                             (D.C. No. 2-12-cr-00137-001)
                          District Judge: Hon. Robert F. Kelly
                                    ______________

                    Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                     April 2, 2020

           Before: GREENAWAY, JR., PORTER, and MATEY, Circuit Judges.

                                  (Filed: April 29, 2020)
                                     ______________

                                        OPINION*
                                     ______________




       *
        This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does
not constitute binding precedent.
MATEY, Circuit Judge.

       Casey Cunningham appeals from an order modifying the terms of his supervised

release. While we find no abuse of discretion, the scope of the District Court’s order

warrants clarification. So we will affirm in part and vacate in part, and remand to the

District Court for further proceedings consistent with this opinion.

                                     I. BACKGROUND

       In 2012, Cunningham pleaded guilty to three counts of bank robbery. Prior to

sentencing, the Probation Office prepared a Presentence Investigation Report (PSR)

detailing Cunningham’s past criminal record, including a 1997 plea of nolo contendere for

sexual assault against a minor leading to seven and a half years imprisonment. The District

Court sentenced him to 96 months’ imprisonment followed by three years’ supervised

release.

       Just before Cunningham’s release, the Probation Office sought additional conditions

on the terms of his supervised release. Citing Cunningham’s 2012 PSR and the 1997 sexual

assault conviction, the Office characterized Cunningham as “a ‘hands on’ sex offender”

who “has a mental health history of suicide ideation and attempts, as well as being sexually

abused as a child.” (App. at 102.) The Office requested that Cunningham participate in a

sex offender and mental health evaluation program and, while in treatment, undergo a

psychosexual evaluation.

       Before ruling on the petition, the District Court ordered Cunningham to undergo a

psychosexual evaluation. The psychologist’s report recommended that Cunningham (1)

attend sex-offense-specific individual and group therapy, unless he could provide

                                             2
documentation that he had completed sex offense mental health treatment; (2) engage in

and complete relapse-prevention counseling and therapeutic exercises; (3) take a polygraph

within the first six months of treatment; (4) be strictly limited from contact with minors;

(5) abstain from drugs and alcohol; (6) adhere to restrictions and requirements of

probation/parole; and (7) receive routine medical care. Following the evaluation, the

Probation Office renewed its petition to modify the terms of Cunningham’s supervised

release, requesting that the Court impose each of the report’s recommendations.

      The District Court granted the motion. Along with Cunningham’s original terms of

supervised release, the Court ordered him to complete a “sex offender/mental health

program” and to submit to any assessments or testing deemed necessary to monitor

compliance with his supervised release and treatment conditions. (App. at 9.) The Court

also barred Cunningham from any “unmonitored or unsupervised contact with minors.”

(App. at 9.) Cunningham appeals from that Order.2

          II. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION WHEN IT
            MODIFIED THE TERMS OF CUNNINGHAM’S SUPERVISED RELEASE

       As part of a criminal sentence, a court may impose a term of supervised release after

imprisonment. See 18 U.S.C. § 3583(a). A term of supervised release comes with certain

conditions, some mandatory and some the court may impose at its discretion. See id.

§ 3583(d). But any conditions imposed beyond those mandated by statute must be


      2
          The District Court had original jurisdiction under 18 U.S.C. § 3231, and
jurisdiction to modify Cunningham’s sentence under 18 U.S.C. § 3583(e). This Court has
jurisdiction to review that sentence modification under 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a). We review modifications of the terms of supervised release for abuse of
discretion. See United States v. Wilson, 707 F.3d 412, 414 (3d Cir. 2013).
                                             3
reasonably related to factors listed in § 3553(a), and involve no greater deprivation of

liberty than reasonably necessary. See id. §§ 3583(d)(1)–(2).

       We have noted that § 3553(a) factors levy “real restriction[s] on the district court’s

freedom to impose conditions on supervised release.” United States v. Pruden, 398 F.3d

241, 248 (3d Cir. 2005). They require “‘some evidence’ that the special conditions imposed

are ‘tangibly related’ to the goals of supervised release.” United States v. Holena, 906 F.3d

288, 290 (3d Cir. 2018) (quoting United States v. Voelker, 489 F.3d 139, 144 (3d Cir.

2007). While “not an especially high standard” it has “teeth.” Pruden, 398 F.3d at 249.

       Cunningham argues that the sentence modification is not reasonably related to his

crimes or characteristics, and argues the change is not narrowly tailored. Nor, he claims,

do the new conditions serve a legitimate purpose. He notes that the prior conviction

supporting the changes occurred more than twenty years ago and is therefore “too remote

to justify” new conditions. (Opening Br. at 13.) In support, Cunningham cites cases

rejecting similar modifications. See, e.g., United States v. Carter, 463 F.3d 526, 527 (6th

Cir. 2006); United States v. T.M., 330 F.3d 1235, 1240 (9th Cir. 2003); see also United

States v. Dougan, 684 F.3d 1030, 1031 (10th Cir. 2012).

       But we conclude Cunningham’s case fits within § 3553(a). First, while the

underlying sexual offense is not recent, a new psychosexual evaluation recommended that

Cunningham both participate in sex offender treatment, and be barred from unsupervised

contact with minors. And after serving his prison term for the sexual assault, Cunningham

fled from supervision and failed to register as a sex offender for four years until he was

eventually arrested. Despite his contention that he had completed sex offender treatment

                                             4
as part of his sentence for the 1997 sexual assault conviction, Cunningham could not

produce evidence confirming this fact. Moreover, Cunningham is ordered to undergo sex

offender treatment only until he is successfully discharged. Based on these circumstances,

the sentence modification imposed by the District Court is tailored enough to

Cunningham’s history and characteristics, affords adequate deterrence, and protects the

public. See 18 U.S.C. §§ 3553(a)(1), (a)(2)(B)–(C). The modification also ensures that

Cunningham receives needed medical care and rehabilitative treatment. See id.

§ 3553(a)(2)(D). In sum, ample evidence shows the conditions are “tangibly related to the

goals of supervised release” and “justif[ied] . . . [by] supporting facts.” Holena, 906 F.3d

at 290 (internal quotation marks and citations omitted).

                    III. THE DISTRICT COURT SHOULD DETERMINE
                  THE PROPER SCOPE OF THE SENTENCE MODIFICATION

       Cunningham also argues that the portion of the sentence modification that bars him

from unsupervised contact with any minors denies him the ability to see his minor son.

Because of the “severe intrusion on . . . family life” that results from that possibility, we

seek a “clear[] sign” from the District Court that it considered the issue. United States v.

Loy, 237 F.3d 251, 270 (3d Cir. 2001). As the record here is unclear, a point all but

conceded by the Government,3 we will remand this portion of the sentence modification so

the District Court may engage in fact-finding and determine the proper scope of its order.




       3
           (See Response Br. at 38–39.)
                                             5
                                    IV. CONCLUSION

      For the above reasons, we will affirm in part and vacate in part, and remand in part

the District Court’s sentence modification order.




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