                         UNITED STATES DISTRICT COURT
                         FOR THE DISTRICT OF COLUMBIA
__________________________________
                                     )
UNITED STATES OF AMERICA             )
                                     )
       v.                            )    Criminal No. 04-128-08 (RMC)
                                     )
JAMES D. HILL,                       )
also known as FOXY,                  )
                                     )
              Defendant.             )
_________________________________ )

                                 MEMORANDUM OPINION

               In 2005, Defendant James D. Hill pled guilty to conspiracy to distribute and

possess with intent to distribute one kilogram or more of a mixture or substance containing

phencyclidine (PCP), ecstasy, and fifty grams or more of cocaine base. The Court imposed a

sentence of 108 months of incarceration, which Mr. Hill has now served, to be followed by five

years of supervised release. Following Mr. Hill’s release to the community, the United States

Probation Office petitioned the Court to amend his conditions of supervised release to require a

sex offender treatment assessment and possible treatment based on Mr. Hill’s 2002 conviction

for attempted second degree child sexual abuse. Mr. Hill vigorously opposes the proposed

amendment and, in turn, asks the Court to vacate the “no contact with minors” supervised release

condition imposed at sentencing. Both requests are fully briefed. For the following reasons, the

USPO petition will be denied and Mr. Hill’s motion will be granted only in part.




                                                1
                                            I. FACTS

               Along with six co-defendants,1 Mr. Hill entered a “wired” plea agreement with

the government pursuant to Fed. R. Crim. P. 11(c)(1)(C)2 under which each defendant pled guilty

to conspiracy to distribute and possess with intent to distribute one kilogram or more of a

mixture or substance containing phencyclidine (PCP), ecstasy, and fifty grams or more of

cocaine base, in violation of 21 U.S.C. § 846 and 21 U.S.C. §§ 841(b)(1)(B)(iii), (b)(1)(B)(iv),

and (b)(1)(C) as then effective. See Judgment [Dkt. 525] at 1.

               Mr. Hill’s sentencing was held on April 4, 2006. The Presentence Investigation

Report (“PSR”) prepared for the Court by the United States Probation Office (“USPO”) stated

that, in 2002, Mr. Hill was convicted in the District of Columbia Superior Court of attempted

second degree child sexual abuse3 and sentenced to 180 days of incarceration. That conviction


1
  The charges to which Mr. Hill pled guilty arose from his involvement with “a massive drug
ring” in Northeast Washington, D.C. known as the M Street Crew. See generally United States
v. Wilson, 605 F.3d 985, 1011 (D.C. Cir. 2010).
2
 Rule 11(c)(1)(C) authorizes plea agreements under which the parties “agree that a specific
sentence or sentencing range is the appropriate disposition of the case, or that a particular
provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not
apply.” The parties’ “recommendation or request binds the court once the court accepts the plea
agreement.” Id.
3
  The record reflects confusion about the precise charges of which Mr. Hill was convicted in
2002. Mr. Hill’s own sentencing memorandum stated that Mr. Hill “was convicted of . . . First
Degree Child Sex Abuse and a related Destruction of Property and Assault.” See Def.
Sentencing Mem. [Dkt. 513] at 3. The instant probation petition states that Mr. Hill was
convicted of “first degree child sexual abuse and attempted second degree child sexual abuse.”
See Probation Pet. [Dkt. 1200] at 1. Mr. Hill’s present counsel, Jonathan Jeffress of the Federal
Public Defender’s Office, notes that “the PSR . . . clearly state[d] [that] Mr. Hill was only
convicted of Attempted Second Degree Child Sexual Abuse; the First Degree Child Sexual
Abuse charge was dismissed.” Opp. Probation Pet. [Dkt. 1206] at 3 (citing PSR ¶ 42). The
Probation Officer later confirmed that Mr. Hill was convicted of attempted second degree child
sexual abuse and not first degree child sex abuse. The publicly available records of Superior
Court reflect Mr. Hill’s guilty pleas in two separate 2002 cases. The Court infers that the
attempted second degree child sexual abuse was the sole count of conviction in case 2002 FEL
3500 and the simple assault and destruction of property count were the two counts of conviction
                                                 2
arose from an incident in which “Mr. Hill, who was 20 years old at the time, became involved

with a young woman who represented herself to be 16 or 17 years old, but was in fact 14 years

old.”4 Def. Opp. Probation Pet. (“Def. Opp.”) [Dkt. 1206] at 2. Mr. Hill’s 2005 sentencing

memorandum stated further that “[h]e was arrested for the [a]buse charges and following said

arrest, went to her home, knocked down the door and punched her for lying to him about her

age.” Def. Sentencing Mem. [Dkt. 513] at 3. As a result of his Superior Court conviction, Mr.

Hill was required to register as a sex offender for ten years under District of Columbia law, but

no conditions were imposed that limited his contact with children. Def. Opp. at 2; see also D.C.

Code § 22-4001 et seq.

               This Court imposed a sentence of 108 months’ incarceration with credit for time

served, to be followed by five years of supervised release. Judgment at 2–3. The Court imposed

two special conditions of supervised release in addition to the standard conditions:

               The defendant shall have no direct, or indirect, contact with
               children, age 18 or younger, and shall refrain from loitering in any
               place where children congregate, including but not limited to
               residences, arcades, parks, playgrounds, and schools. He shall not
               reside with a child or children under the age off [sic] 18 without
               the expressed and written approval of the minor’s legal guardian
               and the written permission of the Court.

               The defendant shall comply with the Sex Offender Registration
               requirements in any state or jurisdiction where he resides, is
               employed, carries on a [sic] avocation, or is a student.

Id. at 3. Mr. Hill did not appeal his conviction or sentence.5


in case 2002 FEL 5030. The Superior Court imposed a sentence of 180 days’ incarceration in
each case, to run concurrently.
4
  Neither the USPO nor the government has challenged Mr. Hill’s characterization of the facts of
the incident.
5
 While incarcerated, Mr. Hill filed a pro se motion, Dkt. 1050, for a reduction in his sentence
due to the 2007 retroactive crack cocaine amendments, see U.S.S.G., App. C, Ams. 706, 711 &
                                                 3
               On January 24, 2013, Mr. Hill was released from incarceration, beginning a term

of supervised release that will expire on January 24, 2018. The USPO petitioned the Court on

February 15, 2013, for a hearing and modification to Mr. Hill’s conditions of supervised release.

Specifically, the USPO stated:

               Based on Mr. Hill’s prior conviction for . . . Attempted Second
               Degree Child Sexual Abuse, the probation officer believes the
               conditions of supervised release should be modified as follows:

               Treatment Assessment: You shall participate in and successfully
               complete a program of sex offender assessment and treatment, as
               directed by the probation officer. This assessment and treatment
               may include physiological testing such as a polygraph or
               plethysmograph testing to assist in planning, case monitoring, and
               supervision. At the direction of the probation officer, you shall pay
               for all or a portion of any treatment program. Any refusal to submit
               to such assessment or tests as scheduled is a violation of the
               conditions of release. To allow the supervising probation officer to
               review your course of treatment and progress with the treatment
               provider(s), you shall waive your right of confidentiality in
               treatment and sign any necessary releases for access to any records
               imposed as a consequence of this judgment.

Probation Pet. [Dkt. 1200] (“Petition”) at 1–2. The Petition noted that the government did not

oppose the request but that Mr. Hill did. Id. at 2.

               The parties convened on March 22, 2013, to address the Petition. Mr. Hill was

present, as were an AUSA, the petitioning Probation Officer, and Mr. Hill’s newly-appointed

lawyer from the Office of the Federal Public Defender. Counsel for Mr. Hill and Mr. Hill

himself voiced strong opposition to the Petition. Addressing the Court on his own, Mr. Hill

stated that he found the potential use of a penile plethysmograph6 particularly repugnant. The


713, in June 2008. The Court denied the motion because the quantity of phencyclidine, not crack
cocaine, was dispositive in determining Mr. Hill’s sentencing guidelines. See Order [Dkt. 1079]
at 1–2.
6
 “Penile plethysmograph testing is a procedure that ‘involves placing a pressure-sensitive device
around a man’s penis, presenting him with an array of sexually stimulating images, and
                                                  4
Probation Officer noted that an alternative to penile plethysmography was available but

continued to request an amendment to Mr. Hill’s conditions of supervised release. Upon

counsel’s request, the Court did not rule immediately and permitted the parties to file additional

briefs. Throughout their briefs, the parties refer to the Petition as encompassing a Sex Offender

Treatment Assessment—for short, “SOTA.”

               The Court now has before it two briefs from Mr. Hill’s counsel, two briefs from

counsel for the government, and a submission from the USPO (“USPO Submission”).7 Mr. Hill

continues to oppose the Petition and, in addition, asks the Court to vacate the “no contact with

children” supervised release condition imposed at sentencing. See Def. Opp.; see also Def.

Reply [Dkt. 1217]. The government asks the Court to grant the Petition and continue the other

terms of release without change. See Gov’t Mem. [Dkt. 1210] & Gov’t Supp. Mem. [Dkt. 1215].

                                    II. LEGAL STANDARD

               18 U.S.C. § 3583(d) governs the imposition of conditions of supervised release at

sentencing. In relevant part, that section provides:

               The court may order, as a further condition of supervised release,
               to the extent that such condition—

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




determining his level of sexual attraction by measuring minute changes in his erectile responses.’
. . . [The procedure] has become routine in the treatment of sexual offenders and is often imposed
as a condition of supervised release.” United States v. Weber, 451 F.3d 552, 554 (9th Cir. 2006)
(quoting Jason R. Odeshoo, Of Penology and Perversity: The Use of Penile Plethysmography on
Convicted Child Sex Offenders, 14 Temp. Pol. & Civ. Rts. L. Rev. 1, 2 (2004)).
7
 The Court shared the USPO’s Submission with the parties. There being no objection, the
accompanying Order directs the Clerk to file the USPO Submission on the docket under seal.

                                                 5
                       (2) involves no greater deprivation of liberty than is
                       reasonably necessary for the purposes set forth in
                       section 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);

               any condition set forth as a discretionary condition of probation in
               section 3563(b) and any other condition it considers to be
               appropriate . . . .

18 U.S.C. § 3583(d).

               18 U.S.C. § 3583(e)(2) and Federal Rule of Criminal Procedure 32.1(c) govern

modification of supervised release conditions.

               The court may, after considering the factors set forth in section
               3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and
               (a)(7) . . . modify, reduce, or enlarge the conditions of supervised
               release, at any time prior to the expiration or termination of the
               term of supervised release, pursuant to the provisions of the
               Federal Rules of Criminal Procedure relating to the modification of
               probation and the provisions applicable to the initial setting of the
               terms and conditions of post-release supervision[.]

18 U.S.C. § 3583(e)(2). Federal Rule of Criminal Procedure 32.1(c) requires that the Court hold

a hearing prior to modification, unless the hearing is waived or the modification is favorable to

the offender in supervision.

               Effectively, then, the substantive guide for considering changes in terms of

supervision is a subset of the factors governing sentencing at 18 U.S.C. § 3553(a):

               Although Congress required certain findings prior to termination or
               revocation of supervised release, it did not require such findings
               prior to modification. The only statutory requirements for
               modification are that the district court consider the listed § 3553(a)
               factors, follow the procedure outlined in Fed. R. Crim. P. 32.1, and
               ensure that the modified conditions are consistent with the
               requirements applicable to all conditions of supervised release.




                                                  6
See United States v. Begay, 631 F.3d 1168, 1172 (10th Cir. 2011). Those factors made relevant

for modification of supervised release conditions by 18 U.S.C. § 3583(e)(2) are:

               (1) the nature and circumstances of the offense and the history and
               characteristics of the defendant;

               (2) the need for the sentence imposed . . . (B) to afford adequate
               deterrence to criminal conduct; (C) to protect the public from
               further crimes of the defendant; and (D) to provide the defendant
               with needed educational or vocational training, medical care, or
               other correctional treatment in the most effective manner;

               ...

               (4) the kinds of sentence and the sentencing range established for--
               (A) the applicable category of offense committed by the applicable
               category of defendant as set forth in the [United States Sentencing
               Guidelines] . . .

               (5) any pertinent policy statement [issued by the United States
               Sentencing Commission] . . .

               (6) the need to avoid unwarranted sentence disparities among
               defendants with similar records who have been found guilty of
               similar conduct; and

               (7) the need to provide restitution to any victims of the offense.

18 U.S.C. §§ 3553(a)(1), (a)(2)(B)–(D), (a)(4)–(7).

               The Third Circuit recently observed that “there appears to be a split” among

circuits as to “whether a district court must find new or unforeseen circumstances before it may

modify a person’s conditions of supervised release.” United States v. Murray, 692 F.3d 273,

278–79 (3d Cir. 2012) (noting possible split between, inter alia, United States v. Miller, 205 F.3d

1098, 1101 (9th Cir. 2000) (suggesting changed circumstance required) and, inter alia, Begay,

631 F.3d at 1170–71 (10th Cir. 2011) (suggesting no changed circumstance required)). The D.C.

Circuit has not spoken directly on this issue, although, as Mr. Hill notes, in a case involving a

challenge to conditions of supervised release imposed at sentencing, the D.C. Circuit recently


                                                 7
observed that a defendant “remains free throughout his term of supervised release to ask the

district court to modify the challenged conditions in light of changed circumstances, which the

court is statutorily authorized to do.” United States v. Legg, 713 F.3d 1129, 1134 (D.C. Cir.

2013). Mr. Hill asserts that the Court should seize upon that language (and a sentence in Chief

Justice Roberts’s 2010 dissent in a restitution case, Dolan v. United States, 130 S. Ct. 2533, 2545

(2010)) and require changed circumstances as a predicate to any modification requiring him to

submit to a sex offender treatment assessment or further treatment. See Def. Reply [Dkt. 1217]

at 1–5. Since there are no changed conditions, he asserts the Petition should simply be denied.

               Because the Court ultimately concludes that new terms sought by the Petition are

not warranted and because the “no contact with children” provision in Mr. Hill’s original

sentence was overbroad, it reaches no conclusion as to whether a changed circumstance must be

found as a predicate to any change in terms of supervision.

                                        III. ANALYSIS

               The Court addresses the Petition before turning to Mr. Hill’s counterproposal to

vacate the “no contact with children” condition.

               A. Sex Offender Treatment Assessment

               As support for its request that the Court require a Sex Offender Treatment

Assessment, Mr. Hill’s Probation Officer believed it was appropriate “[b]ased on Mr. Hill’s prior

conviction for . . . Attempted Second Degree Sexual Abuse.” Probation Pet. at 1. The USPO has

expanded on its reasoning, both at the hearing and in its Submission, to explain that the conduct

underlying Mr. Hill’s 2002 conviction is indicative of a need for sex offender treatment, and an

Assessment will determine whether such treatment is necessary. See USPO Submission at 1–2.

The government agrees and argues that an Assessment is appropriate because it “directly



                                                   8
relate[s] to the purpose of the Sex Offender Registration and Notification Act.” Gov’t Mem. at 4

(citing 42 U.S.C. § 16901).

               Mr. Hill opposes the Petition. First noting that the crime of conviction was a

narcotics offense, he asserts that “it violates [18 U.S.C. § 3583(d)] to impose sex offender

conditions that ‘bear no reasonable relationship to the nature of the convicted offense.’” Def.

Opp. at 6 (quoting United States v. Scott, 270 F.3d 632, 636 (8th Cir. 2001)). Second, Mr. Hill

asserts that “[n]othing else in [his] history even tangentially suggests that he has committed or is

likely to commit sexual misconduct,” in part because “it is plain from the circumstances of the

2002 offense that Mr. Hill was not seeking to be sexually involved with anyone under age, but

instead was initially lied to concerning the victim’s age.” Id. at 7; see also Def. Reply at 6

(noting that no condition for an Assessment was imposed by the Superior Court judge in 2002).

Third, Mr. Hill argues that “[t]he SOTA condition is also not reasonably related to the sentencing

goals of deterrence, protection of the public, or rehabilitation” because “[t]here is no evidence

that the public will in any way be protected by Mr. Hill’s submission to sex offender assessment

and treatment.” Def. Opp. at 8. Finally, Mr. Hill contends that a Sex Offender Treatment

Assessment involves an “extreme deprivation of liberty” that is far greater than necessary to

achieve permissible sentencing goals under 18 U.S.C. § 3583(d)(2).8 Def. Opp. at 9.

               The Court has carefully considered the Petition and declines to require a Sex

Offender Treatment Assessment. Certainly, the crime of conviction in this case does not support

such a condition of release, and the full record now before the Court suggests that Mr. Hill’s
8
  The USPO has indicated that an alternative to penile plethysmography is available, so the Court
does not address the argument that the procedure is an independent violation of relevant statutes
and substantive due process. Def. Reply at 9–10. Moreover, the Court does not need to address
Mr. Hill’s further argument that requiring a sex offender assessment and, perhaps, subsequent
treatment, would constitute an impermissible delegation of authority from the Court to the
USPO. Def. Mot. & Opp. at 11–12, Def. Reply at 8–9.

                                                  9
earlier conviction resulted from a criminal indiscretion based, in part, on erroneous information.9

These facts do not erase Mr. Hill’s 2002 conviction for attempted second degree child sexual

abuse, as it is now an indelible part of his “history and characteristics.” But they do mitigate the

concerns for deterrence, public protection, and future treatment. The Court has great confidence

in Mr. Hill’s Probation Officer and will be vigilant, along with the USPO, in ensuring that this

conclusion carries no untoward consequences.

               District courts are “afforded wide discretion when imposing terms and conditions

of supervised release,” Legg, 713 F.3d at 1131 (citing United States v. Accardi, 669 F.3d 340,

343 (D.C. Cir. 2012)), including imposing conditions that aim at rehabilitation, restitution, or

protection of the public in ways that may bear no facial relationship to the offense committed.

See, e.g., United States v. Love, 431 F.3d 477, 482 (5th Cir. 2005) (affirming condition of

payment of outstanding balance of restitution first ordered in an unrelated case). Nonetheless, as

the cases cited by Mr. Hill show, courts have repeatedly insisted on a searching inquiry into the

need for sex offender treatment when the offense of conviction was not a sex offense. E.g.,

Scott, 270 F.3d at 636 (reversing imposition of sex offender treatment conditions because they

were “not reasonably related to the current offense” of bank robbery, there was “no evidence

supporting the need for the special conditions” when the sex-offense conviction was fifteen years

old, and “the record contain[ed] no information indicating that [the defendant was] likely to

repeat the offense, or that additional restrictions on his freedom [were] necessary to deter him

from doing so”). Accordingly, the Court declines to require a Sex Offender Treatment

Assessment.
9
 The parties here are in agreement as to the facts underlying the 2002 conviction—at age 20,
Mr. Hill mistakenly believed he was engaging in relations with a girl he believed to be of legal
age under D.C. law but who was only 14. The law criminalizes this conduct with zero tolerance
for “mistake” as a defense.

                                                 10
               B. “No Contact with Children”

                As a condition of his release, Mr. Hill is ordered to have “no contact with

children.” He argues that this condition must be vacated because it “plainly violates [18 U.S.C.

§] 3583(d) under the facts and circumstances of this case and should not have been imposed in

the first instance.” Def. Opp. & Mot. at 12–13. Mr. Hill contends that the restrictions lack a

“reasonable relation” to his situation, that they are impermissibly vague, and that they bar him

from “interacting even with his own children.” Id. at 13–14.

               The USPO does not address Mr. Hill’s motion to vacate the “no contact with

children” condition, but the government has filed two briefs in opposition. The government

asserts that the restriction should remain in place as a reasonable, permissible restriction under

18 U.S.C. § 3583(d) because it will “ensure the defendant is not a danger to children under the

age of 18.” Gov’t Mem. at 4. Moreover, the government contends that the “no contact with

children” restriction will carry out the intent of the Sex Offender Registration and Notification

Act, with which Mr. Hill was directed to comply in 2002 following his Superior Court

conviction.10 Id. at 3–4.

               In concept, the government is correct that a “no contact with children” restriction

is reasonably related to the relevant § 3553(a) factors. A “no contact with children” condition is

directly responsive to the offending conduct that led to Mr. Hill’s 2002 attempted second degree


10
   The United States also contends that Mr. Hill has waived any objection to the “no contact with
children” issue by failing to challenge it on direct appeal. U.S. Opp. at 2–3. The United States
bases this argument in part on United States v. Legg, 713 F.3d 1129, 1132 (D.C. Cir. 2013),
which applied plain error review to a defendant’s challenges to supervised release conditions
raised for the first time on appeal. See Gov’t Supp. Opp. at 1–2. However, Legg is inapposite
because it speaks to appellate standards of review. Conditions of supervised release are intended
to further the goals of sentencing—i.e., deterrence, public protection, etc.—after a period of
incarceration. They intentionally are subject to change as an offender’s situation or conduct—or
the law—warrant. See 18 U.S.C. § 3583(e)(2); Fed. R. Crim. P. 32.1(c).

                                                 11
child sexual abuse conviction and addresses “the need for the sentence imposed . . . to protect the

public from further crimes of the defendant.” 18 U.S.C. § 3553(a)(2)(C). Moreover, it affords

narrowly tailored and proportionate deterrence to the commission of any further criminal errors

in judgment by Mr. Hill. Id. § 3553(a)(2)(B).

               However, Mr. Hill’s protestations that the condition is overly vague and

restrictive are well founded. As currently drawn, the “no contact with children” condition

provides:

               The defendant shall have no direct, or indirect, contact with
               children, age 18 or younger, and shall refrain from loitering in any
               place where children congregate, including but not limited to
               residences, arcades, parks, playgrounds, and schools. He shall not
               reside with a child or children under the age off [sic] 18 without
               the expressed and written approval of the minor’s legal guardian
               and the written permission of the Court.

Judgment at 3. The Second Circuit found a similar condition of supervised release “ambiguous

and . . . excessively broad,” and this Court concludes that the instant language should be

clarified. The present text impermissibly provides no clarity for when Mr. Hill is interacting

with his own children, not even with permission and the supervision of their legal guardians.

See Goings v. CSOSA, 786 F. Supp. 2d 48, 71–73 (D.D.C. 2011) (surveying cases in which

“[c]ourts have struck down provisions restricting sex offenders from interacting with their own

children as unconstitutional because they were not reasonably related or supported by the record”

where sex offenders “had a history of far more egregious behavior than that of the plaintiff,” a

man with a conviction for sexual battery for sexual relations with a sixteen-year old girl); see

also United States v. Voelker, 489 F.3d 139, 153–55 (3d Cir. 2007) (finding plain error in

imposition of condition prohibiting defendant “from associating with minors without the prior

approval of the Probation Officer and mandat[ing] that any such contact be in the presence of an

adult who is familiar with [the defendant’s] criminal background” because there is no compelling
                                                12
state interest in curtailing parental rights absent “sufficient evidence” to indicate that “children

are potentially in danger from their parents” (internal quotation marks and citation omitted)).

               The Court will thus modify the “no contact with children” provision accordingly.

The revised condition will read:

               The defendant shall have no contact with children, age 18 or
               younger, who are not his children. He shall have no contact with
               his own children without the expressed, written approval of the
               guardian(s) of those children. The defendant shall refrain from
               loitering where children congregate, in arcades, in or near schools,
               playgrounds, and day care centers unless he is in the company of
               his own children. He shall not reside with a child or children under
               the age of 18 without the expressed, written approval of the
               minor’s legal guardian and the written permission of the Court.

This amended provision is reasonably related to the factors set forth in 18 U.S.C. §§ 3553(a)(1),

(a)(2)(B)–(D), and (a)(4)–(7) and involves no greater deprivation of liberty than is reasonably

necessary. See 18 U.S.C. § 3583(d).

                                        IV. CONCLUSION

               For the foregoing reasons, the Court will deny the Petition and will grant in part

Mr. Hill’s motion to vacate the “no contact with children” condition. A memorializing Order

accompanies this Memorandum Opinion.

DATE: August 12, 2013

                                                                      /s/
                                                       ROSEMARY M. COLLYER
                                                       United States District Judge




                                                  13
