          United States Court of Appeals
                     For the First Circuit


No. 15-1045

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                        NICHOLAS WEBSTER,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

          [Hon. George Z. Singal, U.S. District Judge]


                             Before

                       Howard, Chief Judge,
              Torruella and Barron, Circuit Judges.


     Sarah A. Churchill and Nichols & Webb, P.A., on brief for
appellant.
     Renée M. Bunker, Assistant United States Attorney, and
Thomas E. Delahanty II, United States Attorney, on brief for
appellee.



                         April 13, 2016
           TORRUELLA, Circuit Judge.        This case concerns whether

the district court abused its discretion when it imposed sex

offender treatment on Nicholas Webster ("Webster") as a condition

of supervised release.     Webster was convicted of attempted gross

sexual assault and solicitation of a child by computer in Maine

state court in 2007.      He was subsequently convicted for failing

to register as a sex offender in Maine and New Hampshire state

courts.

           In 2012, Webster pleaded guilty to charges in the United

States District Court for the District of New Hampshire stemming

from his failure to register as a sex offender, as required by the

Sex   Offender   Registration    and   Notification     Act   ("SORNA"),   18

U.S.C. § 2250(a), after moving from Maine to New Hampshire.

           In 2014, Webster pleaded guilty in the United States

District   Court   for   the    District   of   Maine   to    violating    the

conditions of supervised release that were imposed on him due to

his SORNA violation.       Namely, Webster pleaded guilty to: (1)

failing to stop for a police officer; (2) driving to endanger; (3)

criminal mischief; (4) operating under the influence of alcohol;

(5) driving without a license; and (6) consumption of an unknown

quantity of alcoholic beverages.       The district court sentenced him

to eleven months of incarceration and a supervised release term of

120 months, subject to a number of conditions.                These included


                                    -2-
that Webster participate in sex offender treatment and undergo

random periodic polygraph exams if required by the therapeutic

program.    He appeals the sex offender and polygraph conditions

imposed.

                                   I.

            In 2007, Webster was convicted of attempted gross sexual

assault and solicitation of a child by computer in Cumberland

County Superior Court in Maine.     Specifically, he was found guilty

of arranging a meeting with a thirteen-year-old female in order to

engage in sexual acts.1      During the course of the conversation

between Webster and the individual posing as an underage female,

Webster    provided   sexually   explicit     descriptions     of   his    own

anatomy, and informed the minor that he could "teach her how to

please a man."    Police arrested Webster as he drove to meet the

underage female at a prearranged meeting place.

            Webster   was   sentenced    to    a   term   of   five       years

imprisonment, with all but fifteen months suspended, to be followed

by a probation term of three years.       Webster was also required to

register as a sex offender.




1  The record reveals that Webster was in fact communicating with
an individual working for Perverted Justice, an organization
devoted to catching sex offenders online, who was posing as a
thirteen-year-old child.


                                   -3-
            After completing his incarceration, Webster's probation

was revoked on two separate occasions in Maine state court. 2

Webster's second probation revocation was due in part to his

failure to register as a sex offender with the Maine Sex Offender

Registry.     Additionally, Webster was convicted of failing to

register as a sex offender in the state of New Hampshire.       In

addition to his state convictions for failing to register as a sex

offender, Webster has a 1998 state conviction for Reckless Conduct,

which involved domestic violence, various motor vehicle offenses,

and multiple counts of Burglary and Theft by Unauthorized Taking.

            On December 12, 2012, a federal grand jury returned a

one-count indictment against Webster, charging him with traveling

in interstate commerce while knowingly failing to register as a

sex offender in the state of New Hampshire, in violation of 18

U.S.C. § 2250(a).   On June 25, 2013, Webster pleaded guilty to one

count of failure to register as a sex offender, and was sentenced


2  Three parole revocation petitions were filed in Maine state
court. However, his second and third revocation petitions were
adjudicated together.      Webster's second revocation petition
alleged that he failed to notify the Maine Sex Offender Registry
of a change of address, which led to him being charged with a new
offense. The second revocation petition also alleged that Webster
changed his address without permission, failed to report as
directed, and failed to undergo sex offender treatment. His third
revocation petition alleged that Webster committed theft, failed
to identify himself as a probationer to law enforcement, provided
a false name to a police officer, and failed to refrain from the
use or possession of marijuana.


                                 -4-
to 18 months imprisonment and 15 years of supervised release.                The

district court recommended that he participate in sex offender

treatment   during   his    incarceration,     but     did   not   mandate   sex

offender treatment as a supervised release condition.

            On March 7, 2014, Webster was released from custody and

began serving his term of supervised release.                On April 2, 2014,

the District of Maine assumed supervision of Webster's terms of

release.3

            On April 5, 2014, a Maine State Police trooper pulled

Webster over for travelling at seventy-four miles per hour in a

fifty-five mile per hour zone.           The trooper stepped out of his

cruiser and, as he approached the rear side door of the vehicle,

Webster drove away.        Following a brief chase, the trooper found

the vehicle with two female passengers inside, who informed the

officer that the driver had absconded on foot.                 Another officer

subsequently apprehended Webster who "smelled of alcohol" and had

"glassy and bloodshot" eyes.             Although one of the passengers

attested to Webster's alcohol consumption, Webster did not consent

to a breathalyzer test.

            Thereafter,     on   April    7,   2014,    the     United   States

Probation Office filed a Petition for Warrant or Summons for


3  Previously, the United States District Court for the District
of New Hampshire had jurisdiction over Webster's supervision.


                                    -5-
Offender    Under   Supervision      alleging   six   parole       violations.

Specifically,   the    petition    adduced   that   Webster    violated    the

following conditions of supervision: (1) eluding an officer;4 (2)

driving to endanger; (3) criminal mischief; (4) operating a vehicle

under the influence of alcohol; (5) driving without a license; and

(6) consuming an unknown quantity of alcoholic beverages.

            The district court conducted a revocation hearing on

December 19, 2014.     At the start of the hearing, Webster admitted

that he committed all six violations.           Probation Officer Kristin

Cook 5 testified    that    sex   offender   treatment   is   generally    not

imposed as a release condition in the District of New Hampshire.

However, "[e]very case that has a prior sex offense or is convicted

of failure to register" in the District of Maine is ordered to

undergo sex offender treatment as a condition of release.                  The

treatment   includes    a    psychosexual    assessment,      as   well   as   a

polygraph exam.       Ms. Cook added that, without the polygraph,

probation officers would be forced to take sex offenders on their

word.




4  The charge for eluding an officer was later re-filed as failure
to stop for a police officer.
5  The transcript of the proceedings incorrectly refers to the
Probation officer as "Crystal Cook," however, her name is Kristin
Cook.


                                     -6-
           Webster retained Dr. Peter Donnelly ("Dr. Donnelly"),6

a psychologist, to perform competency and criminal responsibility

evaluations,      as     well    as   a     psychosexual     risk      assessment.

Dr. Donnelly diagnosed Webster with schizoaffective disorder, a

serious mental illness.           Further, Dr. Donnelly testified that

Webster's responses to his questions failed to correlate to those

of "known child molesters or known rapists."                 In Dr. Donnelly's

view,   Webster's      sexual    deviance       was   subsequent    to    Webster's

primary issues of mental health and substance abuse.                      However,

Dr. Donnelly noted that Webster can "fall into criminal problems"

including sexual offenses when he is engaging in substance abuse

or not properly managing his mental illness.                       Dr. Donnelly's

written report did not address whether sex offender treatment would

be beneficial.         Nonetheless, Dr. Donnelly conceded that Webster

could   benefit    from    sex   offender       treatment   in   his     testimony.



6  We note that Dr. Donnelly also evaluated Webster in 2007 in
relation to the sex offense charges brought against him in Maine
state court. In his 2007 report, Dr. Donnelly noted that Webster
acknowledged committing a sex offense and that Webster endorsed
the position that his sex offense "happened because [he] knew the
person already had sexual experience and they wanted it" and that
his "sexual offense happened because of stress in [his] life."
Webster also admitted to "some sex play between [himself] and the
person who accused [him] but the truth is the person invited it
and wanted it."    As part of his recommendations, Dr. Donnelly
noted that therapeutic efforts will need to be tailored to ensure
that Webster achieves greater self-awareness "of how he could have
made himself vulnerable to committing a sex-related crime."


                                          -7-
Although Dr. Donnelly initially questioned the effectiveness of

polygraph exams, he ultimately acknowledged their helpfulness.

          During his allocution, Webster sought to explain his

previous transgressions.    He told the court that he was undergoing

a "dark period" in December of 2006 due to his divorce and engaging

in alcohol abuse.   He admitted to inappropriate sexual behavior

in his past, but claimed that it did not involve minors.   According

to Webster, the person he spoke with online in 2007 did not have

an age profile and he did not "remember all of the circumstances"

regarding what transpired.      Webster also denied that he was

driving to meet the purported minor with whom he was chatting

online.   Instead, he was driving to meet adults whom he also had

met online.

          Webster also sought to explain why he failed to register

with the Maine sexual offender registry.    In his view, he did not

blatantly refuse to register or attend treatment, but did so as a

result of his circumstances.   He told the court that he was living

with his father at the time and the police told him to leave after

his father assaulted him.    Instead of going home, Webster "ended

up [. . .] with friends that were not right."

          Webster also told the court that he did not maliciously

break the law during his most recent supervised release violation

because he thought he had a valid driver's license.         Finally,


                                 -8-
Webster expressed that he felt that sex offender treatment was

"counterproductive," because in his view his principal issues are

substance abuse and depression.

            After    listening      to    witness      testimony       and    Webster's

allocution, the district court sentenced Webster to eleven months

imprisonment and a 120-month period of supervised release.                           In

addition,    the    district      court   ordered      Webster      to   undergo    sex

offender    treatment       and    periodic       polygraph       examinations,      if

required    by     the   therapeutic      program,          as   conditions    of    his

supervised release.

            The district court ably explained that sex offender

treatment and polygraph examinations were necessary in light of:

(1) Webster's self-medication and mental health issues; (2) the

court's understanding that Webster had not been forthright; (3)

Webster's statement to Dr. Donnelly that he thought he was chatting

with a sixteen- or seventeen-year-old girl and "was doing a quick

two-step with regard to when he was arrested and how he was

arrested;"(4) the fact that Webster's sex offense conviction is at

odds with Webster's statement to Dr. Donnelly that he never had

sexual interest in a child or engaged in deviant sexual behavior;

(5) Dr. Donnelly's statement that sex offender treatment could be

beneficial; (6) sex offender treatment had been previously ordered

by   the   Maine    state   court;    and       (7)   the    court's     concern    that


                                          -9-
Webster's refusal to register as a sex offender could indicate

that   Webster   sought      to    deny    or     rationalize    his    past   sexual

misconduct.

            While the court noted that the scientific community is

divided on the usefulness of polygraphs, the court found that its

use is appropriate where a sex offender lacks candor.                           Given

Webster's less than forthcoming allocution, the district court

reasoned that the polygraph component was necessary.

                                           II.

            We review challenges to conditions of supervised release

for abuse of discretion.           United States v. Morales-Cruz, 712 F.3d

71, 72 (1st Cir. 2013).

            "There     are   two     basic       kinds   of   supervised       release

conditions.      The    first       kind    are    mandatory     conditions.        By

operation   of   statute,         mandatory      conditions     are    automatically

imposed in every case in which a defendant receives supervised

release as part of his sentence."                 United States v. Medina, 779

F.3d 55, 60 (1st Cir. 2015) (citing 18 U.S.C. § 3583(d)).                         The

second kind are those special conditions imposed at the discretion

of the court.    Id.

            District courts enjoy "significant discretion to impose

special conditions of supervised release."                Id.    However, district




                                          -10-
courts may impose a special condition only if the court determines

that the condition:

       (1) is reasonably related to the factors set forth
       in [18 U.S.C. §] 3553(a)(1), (a)(2)(B), (a)(2)(C),
       and (a)(2)(D);

       (2) involves no greater deprivation of liberty than
       is reasonably necessary for the purposes set forth
       in [18 U.S.C. §] 3553(a)(2)(B), (a)(2)(C), and
       (a)(2)(D); and

       (3) is consistent with any pertinent policy
       statements issued by the Sentencing Commission
       pursuant to 28 U.S.C. [§] 994(a).

18 U.S.C. § 3583(d).

          Section 3553(a)(1) requires that the district court take

account of "the nature and circumstances of the offense and the

history and characteristics of the defendant."         District courts

must also take account of the need "to afford adequate deterrence

to criminal conduct," id. § 3553(a)(2)(B), "to protect the public

from further crimes of the defendant," id. § 3553(a)(2)(C), and

"to provide the defendant with needed educational or vocational

treatment, medical care, or other correctional treatment in the

most effective manner," id. § 3553(a)(2)(D); see also Medina, 779

F.3d at 60.   Thus, district courts may impose a special condition

only if the condition will further at least one of the goals of

supervisory release, which include: (1) the need to protect the

community; (2) deterrence; and (3) the effective educational,

vocational,   medical,   or   other   correctional   treatment   of   the

                                 -11-
defendant.    United States v. York, 357 F.3d 14, 20 (1st Cir. 2004)

(citing U.S.S.G. § 5D1.3(b)(1)); see also Medina, 779 F.3d at 60-

61.

             "The   critical     test     is    whether    the      condition     is

reasonably related to one or more of the goals of supervised

release."    Morales-Cruz, 712 F.3d at 74 (citing York, 357 F.3d at

20).   Importantly, sex offender treatment may be imposed in a case

in which the underlying crime is not a sex offense.                       York, 357

F.3d at 19-20.

             Webster contends that the district court abused its

discretion    by    requiring    that    he    participate     in   sex    offender

counseling    and    submit     to   polygraph       testing   as   part    of   his

supervised release.7      More specifically, Webster argues that the

court imposed sex offender treatment on him as a matter of policy

even though this condition is not reasonably related to the conduct

that triggered his violation of supervised release.                       Secondly,

Webster   emphasizes     that    because       his   conviction     for    sexually


7  Arguably, Webster waived his challenge to the polygraph testing
condition by failing to develop his argument in his brief. To the
extent that he is alleging that the polygraph condition is
unreasonable, we discuss his objections to the polygraph testing
condition in tandem with his objections to the imposed sex offender
treatment. Nonetheless, we note that the district court tailored
the polygraph condition to ensure the protection of Webster's Fifth
Amendment rights, as well as any concern that violation proceedings
may arise solely from Webster's failure to pass a polygraph exam.
See York, 357 F.3d at 23-25.


                                        -12-
deviant behavior took place in 2007, it is too remote in time to

support the imposition of sex offender treatment or polygraph

testing.8   Thus, Webster contends that the imposed conditions are

not tailored to his particular history and characteristics.

            In Morales-Cruz, the defendant violated the conditions

of his supervised release by failing to register as a sex offender

as required by SORNA.    The district court sentenced the defendant

to 48 months of imprisonment and a ten-year term of supervised

release, which included participation in sex offender treatment

and/or mental health treatment programs.     The majority upheld the

imposition of sex offender treatment as a condition of supervised

release even though the underlying sex offense was sixteen years

old.    According   to   the   majority,   the   defendant's   multiple

convictions for failure to register as a sex offender in three

different jurisdictions warranted the imposition of sex offender

treatment because it permitted a reasonable inference that the

defendant "presented a recidivism risk and warranted deterrent


8  Webster cites the dissenting opinion in Morales-Cruz to support
his argument that when the sexually offending behavior is
temporally removed from the events that trigger the sentencing, a
strong nexus between the need for sex offender treatment and the
defendant's circumstances must be shown. 712 F.3d at 77 (Torruella,
J., dissenting) (citing United States v. Dougan, 684 F.3d 1030,
1036 (10th Cir. 2012)).     Even under the dissent's reasoning,
however, Webster's argument fails because the district court
provided a sufficient nexus between Webster's characteristics and
the need for sex offender treatment.


                                 -13-
punishment."      Id. at 75.    The majority also noted that the

defendant had a recent conviction for battery on the woman with

whom he lived.9    Id. at 72.

          Unlike the defendant in Morales-Cruz, Webster did not

violate his supervised release conditions because of a failure to


9   As part of its analysis, the majority distinguished the
defendant in Morales-Cruz from cases in our sister circuits in
which supervised release conditions were reversed because the
conditions were premised on behavior that was too remote to justify
sex offender or mental health conditions. See United States v.
Sharp, 469 F. App'x 523 (9th Cir. 2012)(sex offender conditions
reversed where the sex offense was more than a decade old, the
defendant was convicted of being a felon in possession of a
firearm, no suggestion of prior sex offender registration
convictions,   and   the   district   court   failed   to   provide
justification for the sex offender condition); United States v.
Carter, 463 F.3d 526 (6th Cir. 2006)(sex offender conditions
reversed where the defendant was convicted of being a felon in
possession of a firearm, the defendant's prior sex offense was 17
years old); United States v. Scott, 270 F.3d 632 (8th Cir. 2001)
(sex offender conditions reversed where the defendant was
convicted of armed robbery and the sex offense was 15 years
removed); United States v. Kent, 209 F.3d 1073 (8th Cir. 2000)
(reversing mental health conditions because they were unrelated to
the mail fraud conviction and there was no evidence in the record
to suggest that mental health counseling would further the goals
of deterrence or public protection); Dougan, 684 F.3d 1030
(reversing imposed sex offender conditions because previous
convictions for sexual battery took place 17 years prior); United
States v. Rogers, 468 F. App'x 359 (4th Cir. 2012) (per curiam)
(reversing sex offender conditions because the sex offense was
over twenty years old and there was no suggestion that the
defendant had chronically failed to comply with sex offender
registration requirements).

   The majority emphasized that these cases were distinguishable
because they did not involve a defendant with a recent conviction
for domestic violence.     Moreover, in four of the cases the
challenged conditions "bore no relationship to the offense of
conviction and the defendant's recent criminal history provided no

                                -14-
register    under    SORNA.       Nor    was    Webster's    supervised        release

violation    a     sexual   offense.       Nonetheless,      we   find    that       the

district court sufficiently articulated the need for sex offender

treatment and polygraph testing in this case.                         As mentioned

earlier, the district court provided a detailed accounting as to

why the imposed conditions were appropriate.

             In    light    of   Dr.   Donnelly's    testimony    and     Webster's

allocution, we find that the record supports that the sex offender

treatment and polygraph conditions are in fact tailored to the

nature and circumstances of Webster's sex offense and Webster's

particular        characteristics.          Webster's       refusal      to     accept

responsibility for his sex offense, lack of candor towards the

court,     and    continued      self-medication     pose     a   real        risk    of

recidivism.       See United States v. Roy, 438 F.3d 140, 143 (1st Cir.

2006) (describing statement by a treatment counselor that with sex

offenders, dishonesty is commonly a risk factor for recidivism).

We have previously highlighted that sex offender treatment has

been linked to reduced recidivism.              See United States v. Mercado,

777 F.3d 532, 537 (1st Cir. 2015) (citing Morales–Cruz, 712 F.3d

at 75; York, 357 F.3d at 21).             Further, Dr. Donnelly's testimony

linked Webster's mental illness and substance abuse to his sexual




basis for the conditions."             Morales-Cruz, 712 F.3d at 75.


                                         -15-
deviance.     Thus, we conclude that the imposed conditions are

reasonably related to Webster's offense and his characteristics.

We also find that the imposed conditions are sufficiently related

to the supervised release goals of rehabilitation and the need to

protect the community.

             Webster's argument that his 2007 sex offense is too

remote to be reasonably related to the imposition of sex offender

treatment also fails.      In Morales-Cruz, the majority affirmed the

imposition of sex offender treatment when the underlying sex

offense was sixteen years old.      712 F.3d at 72.    We are well aware

that "our sister circuits continue to take a dim view of equivalent

sentencing    conditions   based   on   temporally   remote   sex    offense

convictions where there has been no subsequent similar conduct."

United States v. Del Valle-Cruz, 785 F.3d 48, 59 (1st Cir. 2015).

The imposition of sex offender conditions is troubling when the

underlying sex offense conviction is temporally remote.             However,

in this case, we find that the district court properly articulated

the need for sex offender treatment in light of Webster's personal

characteristics.    As has been repeatedly mentioned throughout this

opinion, the court found that Webster's lack of candor, denials of

responsibility, continued self-medication, and the testimony from

his own retained therapist necessitated the imposed conditions.

Thus, even though Webster's underlying sex offense conviction


                                   -16-
dates back to 2007, his history and characteristics support the

district court's imposed conditions.           Further, the record amply

supports    that   Webster   will   likely    benefit   from   sex   offender

treatment as part of his rehabilitation.            Similarly, Webster's

allocution indicates that his refusal to accept responsibility for

his conduct and his continuing self-medication present a danger to

the community.

            Because we find that the sex offender treatment and

polygraph    testing    conditions     were     warranted      by    Webster's

individual characteristics and that such conditions were also

necessary to achieve the goals of supervised release, we conclude

that affirmance is appropriate in this case.

                                    III.

            Accordingly, we affirm the district court's imposition

of sex offender treatment and polygraph examination.

            Affirmed.




                                    -17-
