                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 14-2704
                         ___________________________

                              United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                  Kendall Woodall

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                 for the Northern District of Iowa - Cedar Rapids
                                  ____________

                           Submitted: December 8, 2014
                               Filed: April 3, 2015
                                   [Published]
                                 ____________

Before LOKEN, BYE, and SMITH, Circuit Judges.
                           ____________

PER CURIAM.

      Kendall Woodall pleaded guilty to one count of failing to register as a sex
offender in violation of 18 U.S.C. § 2250(a). The district court sentenced him to ten
months' imprisonment with five years of supervised release. Woodall appeals two
conditions of his supervised release, which restrict him from (1) consuming alcohol
or entering bars or similar establishments and (2) having contact with minors without
the probation office's prior approval. We affirm in part and reverse in part.

                                     I. Background
       In 2001, Woodall was convicted of second-degree statutory rape and second-
degree sodomy in Missouri for having sexual relations with his 15 year old stepsister.
As a result, Woodall was required to register as a sex offender in Missouri. Woodall
last complied with this requirement in May 2012. In November 2012, Woodall moved
to Iowa but failed to notify the proper authorities in Missouri and failed to register as
a sex offender in Iowa, as is required by the Sex Offender Registration and
Notification Act, 42 U.S.C. § 16901 et seq. Consequently, a grand jury indicted
Woodall for failing to register as a sex offender in Iowa. Woodall pleaded guilty to
this charge on March 24, 2014.

       A presentence investigation report (PSR) was prepared prior to sentencing.
The PSR found that Woodall "consumed marijuana once every other month" between
the time he was 22 years old and his arrest for the current offense; further, Woodall
described himself as a "social drinker, consuming one or two beers each month."
Additionally, the PSR noted that Woodall was terminated from a sex offender
treatment program in 2007 during a previous incarceration when he got into a fight
with another inmate. The final finding of note in the PSR was that Woodall attempted
to commit suicide in February 2014 by overdosing on over-the-counter drugs;
Woodall left a suicide note that was derogatory and potentially threatening to U.S.
Marshals. Woodall was subsequently diagnosed with major depressive disorder and
potential adult attention deficit disorder. Neither Woodall nor the government
objected to these PSR specific findings.

      Following the sentencing hearing, the district court sentenced Woodall at the
bottom of the Guidelines range. Additionally, it imposed five years of supervised



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release. As part of the special conditions for supervised release, the court ordered,
among other things, the following:

      2) The defendant must not use alcohol nor enter bars, taverns, or other
      establishments whose primary source of income is derived from the sale
      of alcohol.

                                         ***

      5) The defendant must not have contact with children under the age of
      18 (including through letters, communication devices, audio or visual
      devices, visits, electronic mail, the Internet, or any contact through a
      third party) without the prior written consent of the United States
      Probation Office.

       The district court rejected Woodall's objection to the special condition relating
to alcohol prohibitions. The court based its imposition of the condition on its
conclusion that "[t]here's codependence between marijuana or other street drugs and
alcohol. When a person who has a history of substance abuse can't use illegal drugs,
they frequently will resort to alcohol, and that's the basis for the alcohol condition."
The court also rejected Woodall's objection to the special condition relating to contact
with minors because of the seriousness of his prior conviction relating to his
stepsister.

                                     II. Discussion
       Woodall appeals the imposition of both special conditions, arguing that the
district court abused its discretion by failing to properly tailor the special conditions
to "involve[] no greater deprivation of liberty than is reasonably necessary for the
purposes set forth in" 18 U.S.C. § 3553(a). 18 U.S.C. § 3583(d)(2).

       We review a district court's imposition of special supervised release conditions
for an abuse of discretion. United States v. Jirak, 728 F.3d 806, 815 (8th Cir. 2013)

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(citation omitted). Generally, a sentencing court has broad discretion in requiring
special conditions of supervised release, provided that each condition "'1) is
reasonably related to the sentencing factors set forth in 18 U.S.C. § 3553(a); 2)
involves no greater deprivation of liberty than is reasonably necessary for the
purposes set forth in § 3553(a); and 3) is consistent with any pertinent policy
statements issued by the Sentencing Commission.'" United States v. Walters, 643 F.3d
1077, 1079 (8th Cir. 2011) (quoting United States v. Bender, 566 F.3d 748, 751 (8th
Cir. 2009)). As noted above, Woodall challenges only the second requirement: that
the special conditions prohibiting consuming alcohol or entering certain
establishments and prohibiting contact with minors involve a greater deprivation of
liberty than is necessary.

                               A. Alcohol Prohibition
       First, Woodall argues that the prohibition of consuming alcohol and entering
establishments that derive their primary source of income from alcohol sales was
based on a faulty premise: that Woodall was drug dependent based on his use of
marijuana "every other month"1 and that such dependency justified the prohibition
because drug dependents readily become dependent on alcohol when they are
precluded from using their drug of choice.2 Further, Woodall points out that he has
no history of alcohol-related offenses. Thus, if Woodall is not dependent on his use


      1
        The PSR fact recitation is uncontested. The district court did not make any
comments about alternative factual findings of drug use and abuse on the record, nor
did it hear evidence to justify any alternative findings.
      2
        Our precedent constrains us from commenting on the logic that those abusing
illegal drugs will readily switch to abusing alcohol if their drug of choice is
unavailable. Compare United States v. Bass, 121 F.3d 1218, 1224 (8th Cir. 1997)
(rejecting this logic), with United States v. Forde, 664 F.3d 1219, 1223–24 (8th Cir.
2012) (accepting this logic as "judicial common sense" and noting that Bass was
decided before Gall v. United States, 552 U.S. 38 (2007), which changed the
sentencing landscape to allow for such common sense).

                                         -4-
of marijuana and has no history of alcohol influencing him to be a danger to society,
the alcohol prohibition would be a greater deprivation of liberty than necessary to
achieve the goals of "rehabilitation and protection" considered by § 3553(a). See
Bass, 121 F.3d at 1224 (citing United States v. Prendergast, 979 F.2d 1289, 1293 (8th
Cir. 1992)).

       In United States v. Simons, we reviewed prior precedent on similar special
conditions prohibiting alcohol consumption and entering into certain establishments.
614 F.3d 475, 480–81 (8th Cir. 2010). Our review concluded that we have "upheld
such bans for defendants with substance-abuse problems." Id. at 480 (citations
omitted). Thereafter, in both United States v. Forde, 664 F.3d 1219, 1222–25 (8th
Cir. 2012), and United States v. Mosley, 672 F.3d 586, 589–91 (8th Cir. 2012), we
upheld special conditions prohibiting alcohol consumption and entrance into certain
businesses because the defendants manifested drug dependency. In Forde, the PSR
found that the defendant, by his own admission, "reported daily use of marijuana
since he was 13" (being 26 years old at the time of sentencing); additionally, the PSR
indicated that the defendant "completed a four-week outpatient drug program in
Chicago." 664 F.3d at 1223. In Mosley, the PSR indicated that the defendant "used
marijuana daily for ten years from 1988 to 1998" and that "[s]he abused crack cocaine
daily for eight months in 1990." 672 F.3d at 589. She also underwent two separate
substance abuse treatment programs in 1988. Id. at 589–90. The defendant described
herself as a social drinker at the time of sentencing, but the court noted she had been
convicted of driving a motor vehicle while intoxicated in 1997. Id. at 590. Finally, the
defendant had mental health issues and had been diagnosed with "depressive disorder,
anxiety disorder, cannabis use, and history of cocaine abuse." Id. (quotation marks
omitted). Thus, even though the defendant's drug dependancy was over ten years
before her sentencing in 2010, when combined with her mental health issues, we
found the district court was justified in imposing the special condition prohibiting
alcohol. Id. at 591.



                                          -5-
       Since Simons, we have also decided United States v. Walters, which struck
down a similar special condition prohibiting alcohol when we determined the
defendant was not drug dependent. 643 F.3d 1077, 1080 (8th Cir. 2011). In Walters,
the PSR indicated that the defendant had "ceased using all illicit substances years
prior to the hearing and that he only lightly consumes alcohol." Id. Thus, even though
he had a history of substance abuse, "nothing in the record suggests that [the
defendant] is 'drug dependent' and would replace an addiction to illicit substances
with an addiction to alcohol." Id. Further, "nothing in the PSR suggest[ed] that [the
defendant's] use of alcohol spurred his criminal behavior or impeded efforts to
rehabilitate him." Id.

       In Woodall's case, the central question is whether Woodall is "drug dependent";
based on the undisputed facts as presented in the PSR, we cannot so conclude.
According to Walters, Woodall's consumption of one or two beers each month is a
light consumption of alcohol. Further, Woodall's consumption of marijuana once
every other month does not constitute drug dependence. See Bass, 121 F.3d at 1224
(finding that using marijuana "twice per week" did not constitute drug dependence).
Rather, the term "dependence" implies that a person is psychologically or
physiologically reliant on a substance. Therefore, Woodall's use of marijuana once
every other month, while unwise and likely illegal, comes short of drug dependency.
Finally, we realize that Woodall's suicide attempt and mental health diagnoses weigh
in favor of the alcohol prohibition, as it did in Mosley. Nevertheless, the district
court's condition relied predominantly on a factual conclusion of drug dependency
without linking it to another factor such as mental health.

                       B. Contact with Minors Prohibition
      Second, Woodall challenges the special condition that prohibits his contact
with minors without prior written approval from the probation office. Woodall's
challenge is based on his unlikelihood of recidivism and the age of his 13 year old
sex-related offense.

                                         -6-
       When considering similar special conditions of supervised release, we have
relied upon the defendant's history of sexual assaults against minors to determine if
the special condition is reasonably related to protecting children from the defendant's
potential recidivism. In both Walters and Simons, we upheld similar prohibitions
when considering that the defendants in each case had previously sexually abused
children. Walters, 643 F.3d at 1081; Simons, 614 F.3d at 481–82; see also United
States v. Mark, 425 F.3d 505, 508 (8th Cir. 2005) (upholding a similar special
condition based, in part, on the defendant's one prior "sexual exploration with a
female family member who was a minor"). We also consider the age of Woodall's
conviction as a relevant, but not dispositive, factor to weigh. See United States v.
Scott, 270 F.3d 632, 635–36 (8th Cir. 2001) (vacating a similar special condition
because of the age of a 15 year old conviction and the lack of a reasonable
relationship to the nature of the convicted offense).

       Taking the seriousness and the age of Woodall's prior sex-related offense into
consideration, as well as its relationship to the instant offense of failing to register as
a sex offender, we find that the district court did not abuse its discretion in imposing
this special condition. Woodall's prior offense of sexually abusing his 15 year old
stepsister was very serious, and Woodall's failure to register as a sex offender is
directly related to potential recidivism. Further, Woodall has yet to complete a sex-
offender treatment program, which also relates to potential recidivism and justifies
the need to take measures to protect the community after Woodall's release from
incarceration.

                                    III. Conclusion
       For the foregoing reasons, we vacate the special condition of Woodall's
supervised release prohibiting any consumption of alcohol or entry into businesses
that derive their primary source of income in the sale of alcohol; we affirm the special
condition prohibiting Woodall's contact with minors.
                        ______________________________

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