                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,               No. 12-30218
             Plaintiff-Appellee,
                                         D.C. No.
               v.                   3:11-cr-00028-BR-1

RICHARD ROOSEVELT BAHR, JR.,
          Defendant-Appellant.            OPINION


      Appeal from the United States District Court
               for the District of Oregon
       Anna J. Brown, District Judge, Presiding

                Argued and Submitted
            May 8, 2013—Portland, Oregon

               Filed September 16, 2013

    Before: Alfred T. Goodwin, Stephen Reinhardt,
       and Andrew D. Hurwitz, Circuit Judges.

              Opinion by Judge Goodwin
2                    UNITED STATES V. BAHR

                           SUMMARY*


                          Criminal Law

    Vacating a sentence and remanding, the panel held that
the district court’s consideration, at sentencing, of compelled
statements made by the defendant in the course of sex
offender treatment during an earlier period of post-prison
supervision violated his Fifth Amendment privilege against
self-incrimination.

    The panel left to the district court on remand the
determination whether the defendant’s mother’s testimony
was admissible.


                            COUNSEL

Thomas J. Hester, Assistant Federal Public Defender,
Portland, Oregon, for Defendant-Appellant.

Gary Y. Sussman, Assistant United States Attorney, Portland,
Oregon, for Plaintiff-Appellee.




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                  UNITED STATES V. BAHR                      3

                         OPINION

GOODWIN, Senior Circuit Judge:

    Defendant Richard Bahr, Jr. appeals the 240-month
concurrent sentences he received after pleading guilty to two
counts of possessing child pornography. Because the district
court erroneously considered Bahr’s statements made during
an earlier period of post-prison supervision, we vacate the
sentence and remand.

                    I. BACKGROUND

    In 2003, Bahr was convicted of third degree rape under
Oregon state law. Upon his release to supervision, Bahr was
required to complete an approved sex offender treatment
program. The terms of his supervision required adherence to
all rules and conditions of the program and noted that the
program could include polygraph testing. Bahr was indeed
required to take a “full disclosure” polygraph test regarding
his sexual history. During the test, he revealed that, as a
minor, he had sexual contact with six other minors. He also
revealed that, as an adult, he had sexual contact with seven
different minors. And he revealed that he had eight to ten
sexual encounters with fifteen- or sixteen-year-old girls while
he was between eighteen and twenty years old. In another
portion of the treatment program, Bahr admitted in a
workbook that he had sexually abused eighteen children.

    When the government prepared the pre-sentence report
(“PSR”) in this case, it included Bahr’s admissions made
during the polygraph disclosure and in the workbook exercise
4                   UNITED STATES V. BAHR

(“treatment disclosures”). Bahr moved to suppress the
treatment disclosures. The district court denied the motion.1

    During the sentencing hearing, the prosecution also called
as a witness Sandra Brown, Bahr’s mother, who testified
regarding statements Bahr made to her concerning his past
sexual misconduct.

                       II. DISCUSSION

    The use of the compulsory treatment disclosures at
sentencing violated Bahr’s Fifth Amendment privilege
against self-incrimination. United States v. Antelope,
395 F.3d 1128, 1133 (9th Cir. 2005). In order to establish a
violation, a person must show “(1) that the testimony desired
by the government carried the risk of incrimination . . . and
(2) that the penalty he suffered amounted to compulsion.”
Antelope, 395 F.3d at 1134. Potential violations of the Fifth
Amendment are legal questions reviewed de novo. Id. at
1133.

                  A. Treatment Disclosures

    We make clear now that the use of unconstitutionally
compelled statements to determine a sentence in a later,
unrelated criminal proceeding is unconstitutional. The
Supreme Court has recognized that the Fifth Amendment’s
protections extend to the sentencing phase of a criminal case.
Mitchell v. United States, 526 U.S. 314, 327–28 (1999). We
have recognized that those protections also extend to separate
criminal proceedings. United States v. Saechao, 418 F.3d

  1
    However, the disputed information was not used in calculating the
sentencing guideline range.
                   UNITED STATES V. BAHR                         5

1073, 1081 (9th Cir. 2005). Thus, in accord with this court’s
precedent, we hold that the district court’s consideration of
the treatment disclosures violated Bahr’s Fifth Amendment
rights.

    Although Bahr did not assert his Fifth Amendment right
against self-incrimination at the time of the disclosures, that
right is self-executing where its assertion “is penalized so as
to foreclose a free choice.” Minnesota v. Murphy, 465 U.S.
420, 434 (1984) (internal quotation and alteration omitted).
When the government conditions continued supervised
release on compliance with a treatment program requiring full
disclosure of past sexual misconduct, with no provision of
immunity for disclosed conduct, it unconstitutionally compels
self-incrimination.       Antelope, 395 F.3d at 1133–39.
Revocation of supervised release is not necessary to violate
the right; the threat of revocation is itself sufficient to violate
the privilege and make the resultant statements inadmissible.
Saechao, 418 F.3d at 1081.

    First, to determine the risk of incrimination, we ask
whether “the threat of future criminal prosecution is
reasonably particular and apparent.” Antelope, 395 F.3d at
1134. Like Antelope, id. at 1134–35, Bahr was required to
give a full disclosure without a guarantee of immunity, and
with specific acknowledgment from his parole officer that
crimes would be reported to the district attorney and could be
prosecuted.

    The government tries to downplay the threat of
prosecution here by arguing that the treatment counselor told
Bahr she had not seen anyone prosecuted. The record is
unclear whether the counselor actually gave such assurances
to Bahr. But even if she had, those assurances were neither
6                     UNITED STATES V. BAHR

a guarantee of immunity, nor a controlling acknowledgment
in light of the explicit terms of supervision and the separate
position of the parole officer.2 The mandatory completion of
the treatment program created a particular and apparent threat
of future prosecution.

    Second, we must determine whether the penalty amounted
to compulsion by asking whether it was sufficiently coercive
and “more than merely hypothetical.” Id. at 1138. As in
Saechao, 418 F.3d at 1078, Bahr faced terms of supervised
release that mandated his successful completion of a
treatment program. A refusal or failure to complete the
program would in fact subject him to revocation and further
incarceration.3 And, as already discussed, revocation is a
sufficiently coercive penalty. Antelope, 395 F.3d at 1133–39;
Saechao, 418 F.3d at 1081. Thus, the penalty Bahr faced
amounted to compulsion.




    2
     The government also asserts that the parole officer told Bahr there
were ways to reveal offenses that might not result in prosecution, but that
is no more than implicit recognition that Bahr faced incriminating himself
by completing treatment. It is similarly irrelevant that Bahr was not in fact
prosecuted on the basis of any of his disclosures. The privilege is
concerned with threat of incrimination; it does not look to whether the
government mercifully chooses not to capitalize on the constitutional
violations it orchestrated.
    3
    The district court confused two separate terms of release, noting that
one provision regarding the requirement to participate in random
polygraph exams for risk management and treatment stated that responses
could not be used as evidence to prove a violation of supervision. But that
risk management provision was distinct from the treatment provision,
which contained no safe-harbor from possible future use of disclosures as
evidence.
                      UNITED STATES V. BAHR                                7

    The government argues that this case is more akin to
Murphy, where no Fifth Amendment violation was found.
However, among other differences, Murphy’s terms of
supervision did not require answering the parole officer’s
questions; the terms required only that any answers actually
given be truthful. 465 U.S. at 437. The Court found no
violation because there was no “reasonably perceived threat
of revocation.” Id. at 434–39. That is, Murphy could have
chosen not to answer his parole officer’s questions without
any risk of penalty. That was not the case here, where Bahr
had no choice but to answer the questions posed during the
polygraph examination.

    Next, the government’s reliance on United States v. Lee,
315 F.3d 206 (3d Cir. 2003), fails because that case is
distinguishable. As we noted in Antelope, the Lee court had
simply found the defendant failed to show his probation
remained conditioned on waiving his Fifth Amendment
privilege: the polygraph condition in Lee did not require the
defendant to answer incriminating questions, and the
prosecutor there had stipulated that a failure to pass the
polygraph test would not likely result in violation of
supervised release.      Antelope, 395 F.3d at 1138–39
(discussing Lee, 315 F.3d at 212). Here, in contrast, Bahr
faced a concrete threat of revocation.4


  4
    Additionally, we cannot apply United States v. Ramos, 685 F.3d 120
(2d Cir. 2012), cert. denied, 133 S. Ct. 567 (2012), because it is
inconsistent with Saechao. To the extent that Ramos stands for the
proposition that words that only threaten, rather than guarantee,
revocation—such as “could” or “may”—are insufficiently compelling, it
would conflict with our own circuit law. See Saechao, 418 F.3d at 1075,
1078 (failure to comply with terms is “grounds for . . . revocation”;
defendant’s “[f]ailure to answer . . . would have justified the revocation of
his probation” (emphasis added)).
8                 UNITED STATES V. BAHR

    At bottom, Bahr faced revocation of his supervised
release for a failure to successfully complete treatment, and
he received no assurance that his admissions during treatment
would not be used to prosecute him. The government
therefore compelled Bahr’s treatment disclosures in violation
of the Fifth Amendment, and the district court should not
have considered the information.

             B. Testimony of Bahr’s Mother

    The government then argues that Brown’s testimony at
the sentencing hearing provides an independent ground for
affirming the sentence. Not so. While the court may affirm
on any ground supported in the record, United States v. Pope,
686 F.3d 1078, 1083 (9th Cir. 2012), admission of the
treatment disclosures was improper, and the district court
relied on the treatment disclosures’ admissibility to justify
admitting Brown’s testimony. The admissibility of Brown’s
testimony must be considered separately from the admission
of the treatment disclosures, and we leave that issue to the
district court on remand. We express no opinion regarding
whether Brown’s testimony was admissible evidence in
determining a valid sentence in this case.

                   III. CONCLUSION

    Because the district court erred in considering Bahr’s
compelled statements obtained in violation of Bahr’s Fifth
Amendment privilege against self-incrimination, we remand
for re-sentencing. We leave the issue of the admissibility of
Brown’s testimony for the district court on remand, and we
decline to reassign this case, as Bahr urges. If any revisions
or redactions to the PSR must be made in light of our ruling,
                  UNITED STATES V. BAHR                      9

the district court should have the first opportunity to address
those alterations.

   SENTENCE VACATED AND REMANDED.
