                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 04-3712
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         *
      v.                                 * Appeal from the United States
                                         * District Court for the
Joseph F. Heidebur,                      * Eastern District of Missouri
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: April 11, 2005
                                  Filed: July 26, 2005
                                  ___________

Before COLLOTON, McMILLIAN and BENTON, Circuit Judges.
                         ___________

McMILLIAN, Circuit Judge.

       Joseph F. Heidebur (defendant) appeals from a final order entered in the United
States District Court1 for the Eastern District of Missouri granting the government’s
petition to modify the conditions of his supervised release. United States v. Heidebur,
No. 1:95CR00052 (E. D. Mo. Oct. 29, 2004) (Order Modifying the Terms of
Supervision) (hereinafter “Order”). For reversal, defendant argues that the district
court abused its discretion in imposing two special conditions of supervised release


      1
       The Honorable Catherine D. Perry, United States District Judge for the Eastern
District of Missouri.
which, he contends, involve greater deprivation of liberty than is reasonably
necessary. We affirm.

       Jurisdiction in the district court was proper based upon 18 U.S.C. § 3231.
Jurisdiction in this court is proper based upon 28 U.S.C. § 1291. The notice of appeal
was timely filed pursuant to Fed. R. App. P. 4(b).

                                    Background

      In the underlying criminal matter, defendant was indicted on August 22, 1995,
on one count of possession of materials involving the sexual exploitation of a minor,
in violation of 18 U.S.C. § 2252(a)(4)(B). The indictment was based on three
sexually explicit photographs, found in defendant’s home, which he had taken of his
twelve-year-old stepdaughter. Defendant was tried before a jury and found guilty.
On appeal, this court vacated the conviction based upon an evidentiary issue. United
States v. Heidebur, 122 F.3d 577 (8th Cir. 1997) (holding that district court’s
admission of evidence that defendant had sexually molested his stepdaughter was
improper because it showed propensity and was not probative of his knowing
possession of the photographs). On remand, defendant pled guilty. On January 12,
1998, defendant was sentenced to sixty months imprisonment and two years of
supervised release.

       After defendant had completed his prison term, the government filed a petition
requesting that the conditions of his supervised release be modified. The government
proposed numerous additional conditions, of which defendant opposed two on the
ground that they would deprive him of liberty more than is reasonably necessary. The
district court held a hearing on the matter, and on October 29, 2004, issued its order
modifying the terms of defendant’s supervised release. The district court imposed
eight additional special conditions, including the following two which defendant had
opposed:

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      2. The defendant shall participate in a sex-offense specific treatment
      program. The defendant shall enter, cooperate, and complete said
      program until released by the United States Probation Officer. The
      defendant shall abide by all policies and procedures of the sex-offense
      specific program. During the course of said treatment, the defendant
      shall be subject to periodic and random physiological testing which may
      include but is not limited to polygraph testing and/or other specialized
      assessment instruments. The defendant shall contribute to the cost of
      treatment in an amount to be determined by the probation office.

      3. The defendant shall be prohibited from contact with children under
      the age of 18 without the prior written permission of the probation
      officer and shall report to the probation officer immediately, but in no
      event later than 24 hours, any unauthorized contact with children under
      the age of 18.

Order at 1.

      Defendant timely appealed.

                                    Discussion

      We review the imposition of a special condition of supervised release for an
abuse of discretion. United States v. Carlson, 406 F.3d 529, 531 (8th Cir. 2005).
“District courts are normally afforded wide discretion in imposing terms of
supervised release.” United States v. Kent, 209 F.3d 1073, 1075 (8th Cir. 2000)
(Kent).

      In Kent, we noted that the district court, at sentencing, must consider the
following factors:

      (1) the nature and circumstances of the offense and the defendant’s
      history and characteristics; and (2) the need for the sentence to (A)

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      reflect the gravity of the offense, promote respect for the law, and justly
      punish the defendant for the unlawful behavior, (B) adequately deter
      criminal behavior, (C) protect the public, and (D) effectively provide
      necessary educational or vocational training, medical attention, or other
      correctional treatment.

Id. at 1075-76 (citing 18 U.S.C. § 3553(a)(1), (2)(A)-(D) (1998)).

       We then went on to explain that each of the above factors, with the exception
of subsection (2)(A), are “equally applicable considerations in the imposition of a
term of supervised release.” Id. at 1076 (citing 18 U.S.C. § 3583(c)). Moreover, we
noted, U.S.S.G. § 5D1.3(b) also addresses conditions of supervised release, and it
“mirrors § 3583(c)’s adoption of § 3553(a).” Id. Both 18 U.S.C. § 3583(d)(2) and
U.S.S.G. § 5D1.3(b) instruct that conditions of supervised release should not involve
a greater deprivation of liberty than is reasonably necessary.

       In the present case, defendant argues that special condition No. 2, requiring
him to participate in a sex-offense specific treatment program, is not justified by any
specific concerns articulated by his probation officer at the hearing and, moreover,
it jeopardizes his ability to comply with another condition of his supervised release,
retaining employment. See Brief for Appellant at 11-12. In support of the latter
contention, he notes that he objected to this special condition at the hearing on the
ground that he lives and works in rural Ste. Genevieve County, and it would take him
several hours to travel to and from the City of St. Louis, the only place where he
could attend the required type of treatment program. He further points out that,
although the probation officer testified that she would not consider it a violation if he
were to lose his employment because of his participation in a required treatment
program, there is no certainty that she will continue to be his probation officer for the
duration of his supervised release.




                                          -4-
       Upon review, we conclude that special condition No. 2 is justified by several
relevant factors, including: the nature and circumstances of the underlying criminal
offense, defendant’s history and characteristics, the need to deter future criminal
behavior, and the need for effective correctional treatment. See 18 U.S.C.
§ 3553(a)(1), (2)(B)-(D). Having been convicted of possessing materials involving
the sexual exploitation of his twelve-year-old stepdaughter, defendant is not in a
position to argue that it was inappropriate for the district court to require him to
participate in a sex-offense specific treatment program. Cf. Kent, 209 F.3d at 1076-
78 (where the defendant had been convicted of mail fraud and attempting to interfere
with a financial institution’s reporting compliance, holding that the district court
abused its discretion in imposing a special condition of supervised release requiring
participation in mental health counseling at the probation officer’s direction where
the government conceded that the special condition was unrelated to the defendant’s
offenses). Moreover, although the probation officer testified that she knew of only
one outpatient sex-offense specific treatment program in the area, she further testified
that the program entails only one meeting per week in the evening. In view of the
seriousness of the underlying offense, the appropriateness of the treatment program
being required, the improbability that the program will significantly interfere with
defendant’s employment, and the probation officer’s testimony that a loss of
employment would not be considered a violation if caused by the required treatment,
we hold that the minimal deprivation of liberty that may result from special condition
No. 2 is not greater than that which is reasonably necessary under the circumstances.

       Defendant also challenges special condition No. 3, prohibiting him from
contact with children under the age of 18 unless the probation officer has given prior
written permission or defendant reports such contact to the probation officer within
24 hours. Defendant argues that the district court abused its discretion in imposing
this special condition because it is unreasonably vague, it is not justified by any
specific concerns articulated at the hearing, and it is not “finely tuned” to his
particular circumstances. Brief for Appellant at 13-14.

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        As previously emphasized, defendant was convicted of conduct involving the
sexual exploitation of a minor. Special condition No. 3 is justified by several relevant
factors set forth in 18 U.S.C. § 3553(a)(1), (2)(B)-(D), including: the nature and
circumstances of the underlying criminal offense, defendant’s history and
characteristics, the need to deter future criminal behavior, and the need to protect the
public. The deprivation of liberty that may result from special condition No. 3 is not
greater than that which is reasonably necessary under the circumstances. See United
States v. Jodon, 2001 WL 1098100 (8th Cir. 2001) (unpublished) (per curiam)
(upholding a special condition of supervised release restricting the defendant’s access
to children where the defendant had pled guilty to transportation of obscene matter
after he transmitted a sexually explicit picture of himself over the internet to a minor);
United States v. Bee, 162 F.3d 1232, 1235 (9th Cir. 1998) (upholding special
condition of supervised release restricting the defendant from unapproved contact
with children under the age of 18 where the defendant had been convicted of
engaging in abusive sexual contact with a child under the age of 12), cert. denied, 526
U.S. 1093 (1999).

                                      Conclusion

          The district court did not abuse its discretion in imposing the special
conditions of supervised release challenged by defendant. The order of the district
court is affirmed.
                              ____________________




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