                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 19-1711
                         ___________________________

                              United States of America

                         lllllllllllllllllllllPlaintiff - Appellee

                                            v.

               The-Nimrod Sterling, also known as Nimrod Sanders

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                     Appeal from United States District Court
                 for the Eastern District of Arkansas - Little Rock
                                  ____________

                            Submitted: January 13, 2020
                               Filed: May 13, 2020
                                  ____________

Before SMITH, Chief Judge, LOKEN and GRUENDER, Circuit Judges.
                              ____________

LOKEN, Circuit Judge.

       The-Nimrod Sterling began a two-year term of supervised release in December
2018 after completing a 57-month prison sentence for impersonating a foreign
diplomat in violation of 18 U.S.C. § 915 and being a felon in possession of a firearm
in violation of 18 U.S.C. § 922(g)(1). In March 2019, the United States Probation
Office petitioned the district court for modification of his sentence to add three
special conditions of supervised release. Sterling appeals the grant of the petition
following a hearing at which Sterling represented himself with the help of standby
counsel. We vacate one special condition and otherwise affirm.1

                                   I. Background

        After a series of Arkansas convictions in the 1990’s, Sterling’s federal
incarceration began with a 2002 conviction in the Northern District of Illinois for a
bank robbery during which he threatened a bank clerk with a BB gun. The PSR for
that offense recited that he robbed the bank to force a police officer to kill him.
While detained, Sterling attempted to hang himself with his sock and repeated threats
to kill himself. He was hospitalized for suicidal intent and diagnosed with several
mental health disorders. A pretrial Federal Medical Evaluation concluded he had a
history of depression but was competent to be tried. After serving that sentence,
Sterling’s supervised release was transferred to the Eastern District of Arkansas in
February 2007. A competency evaluation concluded he was competent to proceed
with post-release proceedings, but his supervised release was twice modified to
include a directive to obtain mental health counseling. The term of supervised release
expired in February 2012.

      In October 2013, an Arkansas State Police officer stopped Sterling for speeding
and observed large stickers reading “Diplomatic Immunity Do Not Detain,” and “U.S.
Republic of Conch Diplomat Do Not Detain.” Sterling presented the officer a “U.S.

      1
        Both parties assert, without supporting authority, that we have appellate
jurisdiction under 28 U.S.C. § 1291 because the district court’s order is a “final
decision.” Despite the obvious non-final nature of a mid-term modification of
supervised release conditions, compared, for example, to an order revoking
supervised release, we are satisfied that an order modifying supervised release
conditions is, in substance, the entry of a new appealable sentence. Cf. United States
v. Jones, 846 F.3d 366, 369 (D.C. Cir. 2017); United States v. Lonjose, 663 F.3d
1292, 1294-95 (10th Cir. 2011); United States v. Horn, 76 F. App’x 747, 748-49 (8th
Cir. 2003).

                                         -2-
Conch Republic, Diplomatic Identification Card.” The officer released him with a
warning, but sent a photograph of the card to the U.S. Department of State, which
determined, not surprisingly, that Sterling’s diplomatic credentials were fraudulent.2

       In September 2014, two students told Pine Bluff police that Sterling emerged
from a limousine and pointed a long gun at them from his driveway across the street
from Pine Bluff High School. Investigating, police discovered a hidden firearm rack
in the passenger seat of the limousine, and a warrant search of the residence
uncovered a .12-gauge shotgun, ammunition, and a host of materials identifying
Sterling as an ambassador with diplomatic immunity.

       Charged with impersonating a diplomat and unlawful possession of a firearm,
Sterling was determined to be competent to stand trial. District Judge Billy Roy
Wilson then granted Sterling’s motion to represent himself, but appointed Assistant
Federal Public Defender Nicole Lybrand to serve as standby counsel. At trial and
sentencing, Lybrand conducted voir dire, identified objections on Sterling’s behalf,
opposed a sentencing guidelines enhancement, and argued for a reduced sentence.

       Following commencement of supervised release in December 2018, relations
between Sterling and Probation Officer Jerome Sanders quickly soured. In late
February 2019, Sterling filed motions to proceed pro se at any hearings regarding
modification or revocation, and “To Eradicate the Illegal Search & Abuse of Power
by Officer Sanders.” On March 11, the Probation Office petitioned the court for
modification to add three special conditions of supervised release: that Sterling (i)
“participate in a mental health treatment program under the guidance and supervision
of the probation office”; (ii) submit his “person, property, house, residence, vehicle,
papers, computers [and] electronic communications or data storage devices” to a


      2
       The Conch Republic is a tourism attraction invented by the city of Key West,
Florida. See https://www.conchrepublic.com/.

                                         -3-
search conducted at a reasonable time and in a reasonable manner by a probation
officer having reasonable suspicion that a supervised release condition has been
violated and the place to be searched contains evidence of the violation; and (iii)
provide the probation officer with access to “any requested financial information
(including unexpected financial gains)” and “authorize the release of any financial
information” to the Probation Office and the U.S. Attorney’s Office.

       Judge Wilson held a hearing on this petition on March 26, 2019. Sterling
appeared pro se with AFPD Lybrand as standby counsel. At the outset, the
prosecutor stated, “On the first modification, the United States just requests that
[Sterling] be assessed, go through a mental health assessment.” Probation Officer
Sanders was called to testify in support of the three new conditions. Regarding the
first modification, Sanders described at length mental health evaluations and
treatment Sterling received between 2002 and 2009. He testified it is “typical with
offenders who have a history of mental health to have an assessment when they begin
supervision,” but that had not been made a condition of Sterling’s supervision. Asked
to relate his personal observations of Sterling, Sanders testified that when he visited
Sterling’s residence, he “conduced himself as sort of like a king,” claiming that his
paintings are “worth millions of dollars” when clearly they are not; claiming he has
letters from Queen Elizabeth that clearly are not; and saying “he was going to give
[one] painting to President Trump afer he pardons him as an agreement that they had
already made.” In addition, Sterling “dresses or appears to be very lavish and talks
about a very lavish lifestyle, but the living conditions do[] not support that as well.”

       Sterling cross-examined Officer Sanders. Regarding the first modification,
Sterling questioned whether his prior mental health issues had extended into the 57-
month imprisonment for this offense, which Sanders more or less conceded, and
asserted that Sanders’s opinions regarding Sterling’s “erratic behaviors” are “just
your opinion.” Sterling also presented documents showing that he consulted BOP
“psychological services” when his father died in November 2017, that his BOP

                                          -4-
“reentry plan” stated “that mental health is not referred,” and that “I am not self-
employed.” The district court admitted those documents into the record; counsel
failed to make them part of the record on appeal.

       After Sanders completed his testimony regarding the other two modifications
(see Parts III.B and C, infra), Judge Wilson clarified that the government was now
seeking only an initial mental health evaluation, not treatment: “At this point all the
Government wants is an assessment; is that right?” The prosecution responded, “Yes,
Your Honor.” The court then granted the government’s motion “based on the things
before the Court, including the testimony of the supervising officer.” The court’s
written Order modified the first new condition to state: “Defendant must undergo
mental health assessment under the guidance and supervision of the probation office.”
Sterling then filed a motion for reconsideration, arguing the Order must be vacated
because the district court allowed Sterling to represent himself without obtaining a
valid waiver of his right to counsel. The motion was denied without a hearing.

                        II. The Self-Representation Issue

       Sterling first argues the district court “abused its discretion in allowing Mr.
Sterling to proceed pro se at the modification hearing.” We disagree.

        There is no Sixth Amendment right to counsel at a supervised release
modification hearing. However, Rule 32.1(c)(1) of the Federal Rules of Criminal
Procedure provides: “Before modifying the conditions of probation or supervised
release, the court must hold a hearing, at which the person has the right to counsel and
an opportunity to make a statement and present any information in mitigation.” We
have held that waiver of the right to counsel at a supervised release revocation
hearing must be knowing, intelligent, and voluntary because the defendant’s liberty
is at issue, as at a criminal trial. See United States v. Owen, 854 F.3d 536, 542 (8th
Cir. 2017). We assume without deciding that the same principle applies to a

                                          -5-
modification hearing, even though an immediate loss of liberty is seldom at risk. But
the more elaborate procedures mandated by Rule 32.1(b)(2)(D) for revocation
proceedings do not apply unless warranted by the circumstances in a particular case.

       Judge Wilson granted Sterling’s request to represent himself with the aid of
standby counsel at the 2015 trial and sentencing of his underlying conviction. Thus,
there was no need for the court to rule on Sterling’s February 2019 notice that he
would again represent himself at any supervised release modification or revocation
proceeding. The government then petitioned for modifications including a mental
health treatment requirement, which raised the possibility that Sterling’s mental
health had deteriorated. However, when the parties appeared for the modification
hearing in late March, the government changed its request to a mental health
assessment. Sterling opposed that request, prepared to conduct the defense, again
with standby counsel’s assistance. The mental health issue required prompt attention,
as it affected the ongoing supervised release. The court allowed the hearing to
proceed with Sterling representing himself, as he had requested.

       In cross examining Sanders, Sterling demonstrated knowledge of the fact issues
and applicable law, the ability to defend his position without disruption or delay, and
respect for the court and the proceeding. The hearing gave the court no reason to
believe that Sterling’s mental health had changed to the point that his prior knowing
and voluntary decision to represent himself was now in doubt. Thus, there was no
abuse of the court’s sua sponte discretion. Rather, the court proceeded in a manner
well suited to ensuring the prompt and fundamentally fair resolution of the issues.
Sterling’s motion to reconsider the court’s unfavorable Order because he had not
validly waived his right to counsel was an untimely expression of “buyer’s remorse.”




                                         -6-
                          III. The Challenged Conditions

       In the Sentencing Reform Act of 1984, Congress authorized sentencing courts
to impose a term of supervised release that includes conditions imposed in accordance
with 18 U.S.C. § 3583 (c) and (d). Some conditions are mandatory; those conditions
are not here at issue. All other conditions are discretionary -- they may be imposed
“so long as the conditions are reasonably related to the sentencing factors enumerated
in 18 U.S.C. § 3553(a), involve no greater deprivation of liberty than is reasonably
necessary, and are consistent with the Sentencing Commission’s pertinent policy
statements.” United States v. Wilkins, 909 F.3d 915, 918 (8th Cir. 2018) (quotation
omitted); see 18 U.S.C. § 3583(d).

       The Conditions of Supervised Release provision of the advisory Sentencing
Guidelines includes policy statements that separate discretionary conditions into two
categories. USSG § 5D1.3(c) sets forth thirteen “Standard Conditions” that “are
recommended for supervised release.” Sections 5D1.3(d) and (e) set forth multiple
categories of “Special Conditions” that are recommended in some circumstances and
in other circumstances “may be appropriate on a case-by-case basis.” The sentencing
court is expressly authorized to modify conditions of supervised release “at any time
prior to the expiration or termination of the term,” pursuant to Criminal Rule 32.1 and
“the provisions applicable to the initial setting of the terms and conditions of post-
release supervision.” 18 U.S.C. § 3583(e)(2).

      We review the district court’s modification of supervised release conditions for
abuse of discretion. Standard conditions are discretionary and therefore must satisfy
the factors set forth in 18 U.S.C. § 3583(d). But standard conditions are rarely
challenged. Special conditions, on the other hand, are frequently challenged. In
reviewing special conditions for abuse of discretion, we weigh the statutory factors
independently. While a special condition need not relate to all the factors, the district
court must make “an individualized inquiry into the facts and circumstances

                                          -7-
underlying a case and make sufficient findings on the record so as to ensure that the
special condition satisfies the statutory requirements.” Wilkins, 909 F.3d at 918
(quotation omitted). These distinctions are important in this case because two of the
special conditions at issue modified standard conditions that are unchallenged.

        A. The Mental Health Assessment Condition. Probation Officer Sanders
testified that a mental health assessment is common at the start of supervised release,
but the BOP did not conduct or order an assessment when Sterling completed serving
his 57-month sentence. Sanders recounted Sterling’s long history of mental health
issues, evaluations, and treatment, and he described the erratic behavior observed at
Sterling’s home across the street from a public high school. Judge Wilson knew from
presiding at Sterling’s initial sentencing that he had assaulted two students with a
firearm from his driveway. Based on testimony regarding Sterling’s current mental
state, struggles including suicidal thoughts and impulses, and the likely connection
between Sterling’s troubled mental health and violent criminal conduct, the record
clearly supported the reasonableness of requiring a prompt mental health assessment.

       On appeal, Sterling argues only that we should reverse all three modifications
because the district court did not “make sufficient findings on the record so as to
ensure that the special condition satisfies the statutory requirements.” United States
v. Brown, 789 F.3d 932, 933 (8th Cir. 2015) (quotation omitted). As to the mental
health modification, this contention is clearly without merit. “[R]eversal is not
required due to a lack of individualized findings if the basis for the imposed condition
can be discerned from the record.” United States v. Newell, 915 F.3d 587, 590 (8th
Cir. 2019) (cleaned up). We have no difficulty discerning that the basis for this
condition is reasonably related to “the nature and circumstances of the offense of
conviction, the defendant’s history and characteristics, the deterrence of criminal
conduct, the protection of the public from further crimes of the defendant, and the
defendant’s educational, vocational, medical, or other correctional needs.” United
States v. Sherwood, 850 F.3d 391, 394 (8th Cir. 2017) (quotation omitted).

                                          -8-
       B. The Search Condition. Standard Condition No. 10 of Sterling’s supervised
release provides that he “shall permit a probation officer to visit him or her at any
time at home or elsewhere and shall permit confiscation of any contraband observed
in plain view of the probation officer.” This is a standard condition recommended by
the advisory guidelines policy statement. See USSG § 5D1.3(c)(6). In late February
2019, Sterling moved “To Eradicate the Illegal Search & Abuse of Power by Officer
Sanders,” arguing Sanders was doing far more than the “visitation” Standard
Condition 10 allowed. The government responded with a petition to modify the
supervised release conditions to explicitly grant the probation officer expanded search
authority. In support, the petition stated that a search condition “allows the probation
officer to promote public safety through effective oversight of higher-risk
defendants.” It recited that Sterling has five prior possession of firearm charges,
burglary and bank robbery convictions, pointed a firearm at students in front of his
residence, and lives fifty feet from Pine Bluff High School. Officer Sanders’s hearing
testimony supported those allegations, and Judge Wilson knew of Sterling’s
dangerous firearm assault incident from presiding at his trial and sentencing.

       On appeal, Sterling argues that this search condition is only applicable to felons
required to register under the Sex Offender Registration and Notification Act
(“SORNA”), deriving the argument from the text of 18 U.S.C. § 3583(d). We have
previously rejected this argument, holding that “nothing in the language of § 3583(d)
limit[s] the search condition only to felons who are required to register under
SORNA.” United States v. Winston, 850 F.3d 377, 380 (8th Cir. 2017). This prior
decision is binding on our panel.3

        Sterling argues more generally that this special condition is “totally unrelated”
to his offense conduct and surrounding circumstances. Nothing could be further from


      3
       Our panels expect attorneys to advise us when adverse precedent may control
an issue they are raising.

                                          -9-
the truth. His felon-in-possession offense included an enhancement for pointing a
shotgun at two high school students. Weapons were found in his vehicle and home
prior to his imprisonment for this firearm offense, and Officer Sanders testified that
he saw a heavy BB gun resembling a firearm -- the same type of weapon Sterling used
in the Northern District of Illinois bank robbery -- during a pre-release assessment of
the home with Sterling’s wife. The district court did not abuse its discretion in
concluding that a search condition based upon reasonable suspicion was consistent
with the requirements of 18 U.S.C. § 3583(d) and USSG § 5D1.3(b).

      C. The Financial Disclosures Condition. Sterling’s Standard Condition No.
5 provides that he “shall work regularly at a lawful occupation, unless excused by the
probation officer for schooling, training, or other acceptable reasons.” The Probation
Office’s Request for Modification stated:

      A financial disclosure condition enables the probation officer to deter
      and detect economic crimes, verify, and monitor self-employment. Mr.
      Sterling reports to be self-employed; therefore, additional
      documentation is required to verify self-employment.

At the modification hearing, Officer Sanders testified, “It is a condition that he has
employment, but what we’re asking for today is a financial disclosure to verify his
employment. . . . [H]e gave me a transfer of powers from his company that he says
that he runs and he also provided an employee nondisclosure agreement. . . . So I
don’t know exactly what he does.” The court then asked, “What specifically do you
want me to order him to do?” Sanders replied, “To provide financial documents as
far as how he’s making his money, where the money is coming from.”

      The advisory guidelines expressly provide, “Occupational restrictions may be
imposed as a condition of supervised release.” USSG § 5D1.3(e)(4). However, if a
special condition of supervised release “restrict[s] a defendant’s engagement in a


                                         -10-
specified occupation, business, or profession, the court shall impose the condition for
the minimum time and to the minimum extent necessary to protect the public.”
§ 5F1.5(b). In United States v. Choate, we upheld a special condition prohibiting the
defendant from maintaining self-employment during supervised release because the
court “had before it evidence of three separate businesses Choate operated that all
ended up perpetrating the same cycle of fraud,” and the court “is not required to pit
its imagination against Choate’s to anticipate what sort of business he could put to
fraudulent use.” 101 F.3d 562, 566 (8th Cir. 1996).

       Here, the government did not propose prohibiting self-employment. It
proposed the less restrictive condition of requiring Sterling to provide financial
information permitting a determination of whether his self-employment complied
with the employment requirement in Standard Condition 5. At the hearing, Sterling
protested that “I do work for a company,” and Sanders is “trying to . . . get into my
company’s financial business which I am only an employee of.” That of course was
an admission that he was attempting to satisfy the employment standard condition in
a way that might warrant a restriction on self-employment.

       We conclude that, cabined by the district court’s careful questions, the
government presented sufficient evidence to warrant a limited financial disclosure
special condition for this purpose. But that is not the special condition the
government proposed and the district court unfortunately entered. Rather, the district
court entered an order requiring Sterling to “provide the probation officer with access
to any business records or requested financial information (including unexpected
financial gains),” which it may release “to the US Atty’s Office.”

       The guidelines expressly recommend imposing a special condition requiring
the defendant “to provide the probation officer access to any requested financial
information” in specific circumstances -- “[i]f the court imposes an order of
restitution, forfeiture, or notice to victims, or orders the defendant to pay a fine.”

                                         -11-
USSG § 5D1.3(d)(3). Our court has upheld broad financial disclosure conditions in
other cases where the defendant’s offense history and characteristics suggested they
were needed, such as when the defendant is obligated to pay child support, or when
his prior convictions centered on “money and greed” or debt. See Sherwood, 850
F.3d at 395-96 (collecting cases). None of those circumstances is present here.

       The condition orders Sterling to provide “any requested financial information,
a hopelessly vague and overbroad term when no context is provided.” Id. at 397,
citing United States v. Thompson, 777 F.3d 368, 379-80 (7th Cir. 2015). The
requirement to disclose “unexpected financial gains” is particularly troublesome.
Absent evidence of unlawful activity, the probation office and the U.S. Attorney have
no valid basis for requiring Sterling to disclose that he hit the jackpot in a state
lottery, or received a substantial inheritance. This concern is not merely theoretical.
Secrecy can provide important protection to persons who receive financial windfalls.
This proposed special condition intrudes significantly on Sterling’s liberty without
clearly defining its purpose and boundaries.

        The government argues this condition will deter Sterling from fraudulent
conduct like impersonating a diplomatic officer and is necessary in light of his history
of “violent, monetary crimes against others.” But the government presented no
evidence of prior “monetary crimes.” Bank robbery is a crime of violence, not deceit.
And attempting to thwart traffic officers with a fraudulent claim of diplomatic
immunity is criminal, but it is not a financial crime. Nothing in the record indicates
Sterling has previously committed or is at risk of committing financial fraud. On this
record, “[m]oney, greed, and debt simply had nothing to do” with Sterling’s crimes.
Sherwood, 850 F.3d at 396. Although the diplomatic immunity materials found in
the warrant search of his home no doubt raised suspicions, that subject was not
explored in his criminal trial and sentencing or at the modification hearing. The
government had the burden of proof and does not prevail if it had relevant evidence
it failed to present. The government also argues this condition is needed to monitor

                                         -12-
Sterling’s self-employment. But absent evidence of other unlawful activity, there
would not be valid grounds to revoke supervised release and incarcerate Sterling if
his company proves to be a financial fantasy and “erratic behavior” makes him
unemployable.

       Because the government failed to tailor the proposed special condition to the
employment circumstances that warranted modification of Standard Condition 5, the
district court imposed an overbroad special condition that imposes a “greater
deprivation of liberty than is reasonably necessary,” 18 U.S.C. § 3583(d)(2), and is
not “the minimum extent necessary to protect the public,” USSG § 5F1.5(b).
Accordingly, we vacate this special condition.

                                 IV. Conclusion

       For these reasons, we vacate the special condition of Sterling’s supervised
release requiring him to provide “financial information” and otherwise affirm the
Order of the district court dated March 26, 2019.
                        ______________________________




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