United States v. Blinkinsop

                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                      No. 09-30120
                 Plaintiff-Appellee,
               v.                                D.C. No.
                                             4:08-CR-00117-SEH
PAUL BLINKINSOP,
                                                  OPINION
             Defendant-Appellant.
                                         
        Appeal from the United States District Court
                for the District of Montana
         Sam E. Haddon, District Judge, Presiding

                   Submitted April 5, 2010*
                     Seattle, Washington

                       Filed May 27, 2010

   Before: Alfred T. Goodwin, Michael Daly Hawkins and
              N. Randy Smith, Circuit Judges.

                  Opinion by Judge Goodwin




  *The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

                               7681
7684            UNITED STATES v. BLINKINSOP




                       COUNSEL

David F. Ness, Federal Defenders of Montana, Great Falls,
Montana, for the defendant-appellant.
                     UNITED STATES v. BLINKINSOP                     7685
Cyndee L. Peterson, Assistant U.S. Attorney, Missoula, Mon-
tana, for the plaintiff-appellee.


                              OPINION

GOODWIN, Senior Circuit Judge:

   Paul Blinkinsop, who pled guilty to one count of receiving
child pornography in violation of 18 U.S.C. § 2252A(a)(2),
appeals his sentence as to his 97-month imprisonment and
three special conditions of his 5-year supervised release. We
affirm in part, vacate in part, and order a limited remand for
resentencing.

      FACTUAL AND PROCEDURAL BACKGROUND

   In 2008, the Wyoming Internet Crimes Against Children
Task Force determined that a computer registered to Blinkin-
sop contained images of child pornography available to other
users on an Internet shared program, LimeWire File Share.1
This information was reported to the Air Force Office of Spe-
cial Investigations, which, with Immigration and Customs
Agents, interviewed Blinkinsop, an Air Force Staff Sergeant,
stationed at Malmstron Air Force Base in Great Falls, Mon-
tana. During the interview, Blinkinsop admitted that he
viewed child pornography over the Internet via his computer
and that he used search terms, such as “teenage” and “school
girl.”

   When Blinkinsop refused consent to search his computer,
investigators obtained a search warrant and seized his com-
puter and external storage equipment from his residence. A
forensic analysis of Blinkinsop’s equipment revealed more
  1
   “LimeWire is a peer-to-peer file sharing application that connects users
who wish to share data files with one another.” United States v. Lewis, 554
F.3d 208, 211 (1st Cir. 2009).
7686             UNITED STATES v. BLINKINSOP
than 600 images of child pornography created from 2002-
2008, including 42 videos and 99 still pictures, with some of
the children younger than 12 years old. Videos on Blinkin-
sop’s computer included depictions of prepubescent girls
being penetrated in anal and vaginal intercourse, bondage, and
urination.

   Blinkinsop was indicted in Count I for Receipt of Child
Pornography, in violation of 18 U.S.C. § 2252A(a)(2), and, in
Count II, for Possession of Child Pornography, in violation of
18 U.S.C. § 2252A(a)(5)(B); the indictment included a forfei-
ture allegation under 18 U.S.C. § 2252A(a)(3) for Blinkin-
sop’s computer and data-storage equipment. At his change-of-
plea hearing, Blinkinsop admitted that he sought and down-
loaded child pornography from the Internet. He pled guilty to
receiving child pornography and admitted the forfeiture alle-
gation. In accordance with Blinkinsop’s plea agreement, the
government dismissed Count II for possessing child pornogra-
phy.

   The probation office calculated Blinkinsop’s advisory Sen-
tencing Guidelines range at 97 to 121 months of imprison-
ment and his supervised release term of 5 years to life under
18 U.S.C. § 3583(k). The district judge considered the 18
U.S.C. § 3553(a) factors and weighed the serious nature of
Blinkinsop’s crime against his personal record, military ser-
vice, and lack of criminal history before imposing the low-
end, 97-month imprisonment term with 5 years of supervised
release. In addition, the judge imposed thirteen special condi-
tions of supervised release without explanation. Although the
judge asked counsel if they had any statements that they
wanted placed on the record “as to why sentence as stated
should not be the judgment entered,” neither counsel objected
to the sentence, and Blinkinsop thanked the judge for it. Sen-
tencing Transcript at 18, 21.

  On appeal, Blinkinsop challenges his imprisonment term as
being unreasonable, because the district judge allegedly failed
                       UNITED STATES v. BLINKINSOP                          7687
to take into account fully his background, potential for reha-
bilitation, and low recidivism risk. He also argues that his
supervised-release special conditions, relating to his proxim-
ity to children, possession of a camera phone, and ban on his
access to the Internet are unreasonable and overbroad.

                              DISCUSSION

I.       Imprisonment Term

   We review a district judge’s sentence for abuse of discre-
tion. Gall v. United States, 552 U.S. 38, 51 (2007). This two-
part analysis requires determining: (1) whether there was pro-
cedural error in formulating the sentence and (2) whether the
sentence is substantively reasonable. Id. “[W]hen the judge’s
discretionary decision accords with the Commission’s view of
the appropriate application of § 3553(a) in the mine run of
cases, it is probable that the sentence is reasonable.” Rita v.
United States, 551 U.S. 338, 351 (2007); see United States v.
Carty, 520 F.3d 984, 994 (9th Cir. 2008) (en banc) (adopting
this standard in our circuit). Since “ ‘[t]he sentencing judge
has access to, and greater familiarity with, the individual case
and the individual defendant before him than the Commission
or the appeals court,’ ” our determination that “a ‘different
sentence [i]s appropriate is insufficient to justify reversal of
the district court.’ ” United States v. Carter, 560 F.3d 1107,
1120 (9th Cir.) (quoting Gall, 552 U.S. at 51), cert. denied,
130 S. Ct. 273 (2009).

A.       Sentencing Procedure

   [1] Because Blinkinsop did not object to his imprisonment
term at sentencing, the district judge’s sentencing procedure
is reviewed for plain error.2 United States v. Sylvester Norman
     2
    Plain error is (1) an error that (2) is plain, (3) affects substantial rights,
and (4) seriously affects the fairness, integrity or public reputation of judi-
cial proceedings. United States v. Olano, 507 U.S. 725, 732 (1993) (cita-
tions, quotation marks, and alterations omitted).
7688                 UNITED STATES v. BLINKINSOP
Knows His Gun, III, 438 F.3d 913, 918 (9th Cir. 2006).
Proper sentencing procedure requires that, before imposing
sentence, the district judge: (1) correctly calculate the Sen-
tencing Guidelines range; (2) treat the Guidelines as advisory;
(3) consider the 18 U.S.C. § 3553(a) factors;3 (4) choose a
sentence that is not based on clearly erroneous facts; (5) ade-
quately explain the sentence; and (6) not presume that the
Guidelines range is reasonable. Carty, 520 F.3d at 991-93;
Gall, 552 U.S. at 49-50. Adequate explanation not only
derives from the judge’s pronouncement of the sentence, but
“may also be inferred from the PSR [presentence investiga-
tion report] or the record as a whole.” Carty, 520 F.3d at 992.

   At sentencing, the district judge recounted the calculation
of Blinkinsop’s sentence under the Sentencing Guidelines,
including the adjustments that he had made.4 Blinkinsop’s
  3
     These factors include: (1) the nature and circumstances of the offense
and the history and characteristics of the defendant; (2) the need for the
sentence imposed to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment, afford adequate deter-
rence to criminal conduct, to protect the public from further crimes by the
defendant, and to provide the defendant with needed educational or voca-
tional training, medical care, or other correctional treatment in the most
effective manner; (3) the kinds of sentences available; (4) the Sentencing
Guidelines; (5) policy statements issued by the Sentencing Commission;
(6) the need to avoid unwarranted sentencing disparities; and (7) the need
to provide restitution to any victims of the offense. 18 U.S.C. § 3553(a)
(citations and quotation marks omitted).
   4
     The sentencing judge accepted the findings of fact in Blinkinsop’s
PSR, since there were no objections, and his plea agreement. The judge
also accepted the Probation Office’s calculation of Blinkinsop’s Guide-
lines sentence, which was a total offense level of 30. This included a “two-
level increase for the depiction of prepubescent minors in the material
[U.S.S.G. § 2G2.2(b)(2)]; an additional four-level increase for the depic-
tion of sadistic and masochistic conduct depicted in the material
[U.S.S.G.§ 2G2.2(b)(4)]; an additional two-level increase for the use of a
computer [U.S.S.G.§ 2G2.2(b)(6)]; and a five-level increase for the num-
ber of images being in excess of 600 [U.S.S.G.§ 2G2.2(b)(7)].” Sentenc-
ing Transcript at 4-5. Blinkinsop’s sentence included the following
                     UNITED STATES v. BLINKINSOP                       7689
total offense level of 30 and his criminal history of I, the low-
est level, yielded an advisory Sentencing Guidelines range of
97 to 121 months of imprisonment. The judge explained to
Blinkinsop that the Sentencing Guidelines range was “adviso-
ry” and “not binding upon the court,” but that it did “serve as
a kind of starting point or an initial benchmark . . . for deter-
mination of an appropriate sentence.” Sentencing Transcript
at 10. The judge also addressed the § 3553(a) factors.5

downward adjustments: two-levels, because Blinkinsop’s conduct was
limited to receipt of materials concerning the sexual exploitation of minors
rather than distribution, U.S.S.G.§ 2G2.2(b)(1); two-levels for acceptance
of responsibility, U.S.S.G. § 3E1.1(a); and one level for timely notification
of his plea on motion of the government.
   5
     Concerning the § 3553(a) factors, the sentencing judge explained:
    Those [§ 3553(a)] factors are to be weighed and considered in
    your case, and indeed, they have been. And they include not only
    the kinds of sentences legally available, which we have spoken
    to, but the nature and the circumstances of these offenses—or the
    offense; your history and characteristics. And we are going to say
    more about that.
       But I also have an obligation to impose a sentence that reflects
    the seriousness of this criminal conduct; that will promote
    respect for the law and afford an adequate deterrent not only to
    you, but to others who might elect to engage in this kind of con-
    duct.
       I have an obligation to fix a sentence that provides appropriate
    and just punishment; that will serve to incapacitate you, to the
    extent that is necessary, . . . and appropriate to protect the pub-
    lic.
       I am going to make provision in the sentence by way of recom-
    mendation that you be afforded an opportunity for residential sex
    offender treatment while in custody. . . . I am satisfied those are
    good programs. And they provide help to those who will partici-
    pate in them. . . .
       I also have an obligation in making this determination to avoid
    unwarranted sentencing disparities within the federal criminal
    justice system. And in the process, to be mindful of decisions
    from the United State[s] Supreme Court . . . . [a]nd Ninth Circuit
    decisions . . . . All of those factors are to be considered, and,
    indeed, have been considered in your case.
Sentencing Transcript at 11-12 (emphasis added).
7690              UNITED STATES v. BLINKINSOP
   In determining Blinkinsop’s sentence, the sentencing judge
emphasized that Blinkinsop’s crime of receiving child por-
nography was serious. The judge weighed the serious nature
of Blinkinsop’s crime against his family ties, military service,
and lack of a criminal record:

    I balance those obviously serious matters against
    what on another front is the service that you have
    provided and . . . your service record. And those are
    positive considerations which bear upon this process,
    as well.

       My obligation, as I have said, is to take all of
    these factors together and to weigh them and to
    make a determination of an appropriate sentence.
    And after having done so, I have concluded that a
    sentence at the low end of this advisory guideline
    sentence range, while not binding, . . . does address
    the matter adequately; and that a low end sentence
    on the guideline program will be adequate in this
    case.

Sentencing Transcript at 13. Thereafter, the district judge sen-
tenced Blinkinsop to an imprisonment term of 97 months and
5 years of supervised release.

   [2] Blinkinsop concedes that the sentencing judge correctly
calculated his Guidelines range. He has not alleged that the
judge relied on erroneous facts. The judge treated the Guide-
lines as advisory, and he considered the § 3553(a) factors,
including the nature and circumstances of the crime in con-
junction with Blinkinsop’s military service and family sup-
port. In addition to the sentencing judge’s explanation of
Blinkinsop’s sentence, his PSR advises that no factors were
identified under § 3553(a) that would warrant sentencing
Blinkinsop outside the advisory Guidelines range. The sen-
tencing judge did not plainly err in carefully calculating
                  UNITED STATES v. BLINKINSOP              7691
Blinkinsop’s imprisonment term at the lowest end of the
Guidelines range.

B.   Substantive Reasonableness

   [3] Substantive reasonableness of a sentence, reviewed for
abuse of discretion, is applicable in all sentencing decisions
and is not affected by failure to object. United States v.
Autery, 555 F.3d 864, 871 (9th Cir. 2009). Having determined
that Blinkinsop’s sentence was procedurally proper, we con-
sider in our substantive-reasonableness review the “totality of
the circumstances” and recognize that “[t]he sentencing judge
is in a superior position to find facts and judge their import
under § 3553(a) in the individual case.” Gall, 552 U.S. at 51
(citation and internal quotation marks omitted). We “ ‘assume
that district judges know the law and understand their obliga-
tion to consider all of the § 3553(a) factors, not just the
Guidelines.’ ” Autery, 555 F.3d at 873 (quoting Carty, 520
F.3d at 992).

   [4] This court previously has confronted the arguments
relating to substantive reasonableness raised by Blinkinsop on
appeal. In Carty, the defendant convicted of sexually abusing
his young niece, argued that the Guidelines sentence was
“much greater than necessary” to achieve the goals of
§ 3553(a). 520 F.3d at 990. Like Blinkinsop’s PSR, Carty’s
PSR advised that there was “no information concerning the
offense or the offender which would warrant a departure from
the sentencing guidelines.” Id. The court imposed a Guide-
lines sentence, which this court held was substantively rea-
sonable. Id. at 996. We determined that, when a district judge
imposes a sentence within the Guidelines range, “it is proba-
ble that the sentence is reasonable,” because the judge’s appli-
cation of the § 3553(a) factors accords with the Sentencing
Commission’s independent application of those factors in the
“ ‘mine run of cases.’ ” Id. at 994 (quoting Rita, 551 U.S. at
351); see Carter, 560 F.3d at 1120 (determining that the
Guidelines sentence, reflecting a defendant’s criminal history
7692             UNITED STATES v. BLINKINSOP
and applying the § 3553(a) factors, was substantively reason-
able and recognizing our deference to the sentencing judge).

   [5] When a district judge has considered the § 3553(a) fac-
tors and the totality of the circumstances supports the sen-
tence, we have held that the sentence is substantively
reasonable and that “[w]e may not reverse just because we
think a different sentence is appropriate,” particularly when a
convicted defendant reargues his leniency plea from district
court. United States v. Overton, 573 F.3d 679, 700 (9th Cir.)
(citation and internal quotation marks omitted) (receipt-of-
child-pornography case, where sentence was at the high end
of the Guidelines range and the district judge considered the
§ 3553(a) factors as well as the needs for treatment and pro-
tection of the public), cert. denied, 130 S. Ct. 480 (2009).

   [6] In this case, Blinkinsop admittedly obtained in excess
of 600 images, including 42 videos, showing prepubescent
children engaged in sadistic and masochistic sexual acts by
using specific search terms over the Internet. These facts con-
tradict Blinkinsop’s contention that he was merely a “passive
collector of [child] pornography” and “a marginal player in
the overall child pornography business.” Appellant’s Br. at
16, 18. The images he collected were downloaded from the
Internet, then moved and saved in electronic storage equip-
ment. Blinkinsop incurred specific sentencing enhancements
because his child pornography images involved the use of a
computer and more than 600 images. U.S.S.G.
§§ 2G2.2(b)(6), (b)(7). Blinkinsop has not challenged the
application of these enhancements.

   The sentencing judge recognized the serious nature of the
crime to which Blinkinsop had pled guilty:

    I am obliged to consider, and in fact, have consid-
    ered other factors that are to be taken into account,
    one of which is the statutory penalty program that
    Congress has prescribed. And as you know from
                     UNITED STATES v. BLINKINSOP                     7693
      prior appearances before the court, this case requires
      a minimum of five years of confinement. But the
      more significant component of this that we must rec-
      ognize is that the Congress has spoken to say that a
      sentence of up to 20 years, 240 months, in confine-
      ment is warranted. That plainly speaks to the seri-
      ousness of the offense, in the view of the Congress
      of the United States.

        ....

         But this remains a serious crime. And it is clear
      that the Congress has spoken; that the Congress has
      spoken with good reason, because it is a clear reality
      of this kind of criminal conduct that every time one
      of these web sites is opened and every time one of
      these images is viewed, additional harm is visited
      upon the victim. And the tiny children who frequently
      are displayed in these images are truly victims. And
      they have absolutely no capacity to control the con-
      tinued dissemination of these images.

        In this instance, there were literally hundreds of
      such images that were part of the record.6

Sentencing Transcript at 10, 12-13 (emphasis added).

   [7] After reviewing the legislative history of 18 U.S.C.
§ 2252, we held that “the primary ‘victims’ that Congress
sought to protect by enacting § 2252 were . . . the children
involved in the production of pornography.” United States v.
  6
    Blinkinsop received a two-level enhancement under U.S.S.G.
§ 2G2.2(b)(6) for using a computer for receipt of child pornography. We
have explained that “[v]isual depictions in a computer are compiled and
stored in graphics files, much like photographs are complied and stored in
books or magazines. . . . [T]he computer user can separately view, copy,
delete, or transmit each discrete graphics file.” United States v. Fellows,
157 F.3d 1197, 1201 (9th Cir. 1998).
7694                  UNITED STATES v. BLINKINSOP
Boos, 127 F.3d 1207, 1211 (9th Cir. 1997).7 Photographs and
films showing juveniles engaged in sexual activity “ ‘is intrin-
sically related to the sexual abuse of children,’ ” because this
documentation is “ ‘a permanent record of the children’s par-
ticipation and the harm to the child is exacerbated by their cir-
culation.’ ” Id. (quoting New York v. Ferber, 458 U.S. 747,
759 (1982)); see Ashcroft v. Free Speech Coalition, 535 U.S.
234, 244 (2002) (“The sexual abuse of a child is a most seri-
ous crime and an act repugnant to the moral instincts of a
decent people.”). The children involved in pictorial and cine-
matic pornography additionally endure ongoing harm because
their images have been preserved in a permanent medium.8
Criminalizing possession and receipt of child pornography
gives an incentive to such individuals to destroy these materi-
als to alleviate continuing harm to the children exploited. See
Osborne v. Ohio, 495 U.S. 103, 111 (1990) (“The State’s ban
on possession and viewing encourages the possessors of
[child pornography] to destroy them.”).

   [8] The district judge considered the § 3553(a) factors and
the totality of circumstances supporting Blinkinsop’s sen-
tence. Blinkinsop’s arguments omit the recognition that the
children depicted in the pornography that he received, viewed,
stored, and transmitted are the real victims of his crime and
  7
     See United States v. Daniels, 541 F.3d 915, 924 (9th Cir. 2008) (recog-
nizing that “merely possessing [or receiving] child pornography is not a
victimless crime,” because “it fuels the demand for the creation and distri-
bution of child pornography,” and evidence shows “the harm that children
suffer when they are used in the creation of child pornography[,] . . . when
that pornography is distributed to others”), cert. denied, 129 S. Ct. 1600
(2009).
   8
     The Supreme Court has recognized that
      [b]ecause the child’s actions are reduced to a recording, the por-
      nography may haunt him in future years, long after the original
      misdeed took place. A child who has posed for a camera must go
      through life knowing that the recording is circulating within the
      mass distribution system for child pornography.
Ferber, 458 U.S. at 759 n.10 (citation and quotation marks omitted).
                        UNITED STATES v. BLINKINSOP                     7695
that time is required for the sex-offender treatment during
incarceration that Blinkinsop needs for his child-pornography
addiction. In addition to being procedurally correct, Blinkin-
sop’s imprisonment term, the lowest under the Sentencing
Guidelines, is substantively reasonable, because it is well sup-
ported by the record and the governing law.

II.     Special Conditions of Supervised Release

   [9] Blinkinsop concedes that he did not object at sentenc-
ing to the special conditions of his supervised release that he
challenges on appeal. Therefore, our review is limited to plain
error. United States v. Rearden, 349 F.3d 608, 618 (9th Cir.
2003); see United States v. Sullivan, 451 F.3d 884, 894 (D.C.
Cir. 2006) (“Standing mute [after a sentence has been pro-
nounced] is not an option, not if a litigant wishes to avoid a
plain error standard of review on appeal.”). Under 18 U.S.C.
§ 3583(d), a district judge has discretion to order special con-
ditions of supervised release that are “reasonably related to
the factors” in 18 U.S.C. § 3553(a).9 Because the sentencing
  9
      In pertinent part, § 3553(a) provides:
       (a) Factors to be considered in imposing a sentence.—The
       court shall impose a sentence sufficient, but not greater than nec-
       essary, to comply with the purposes set forth in paragraph (2) of
       this subsection. The court, in determining the particular sentence
       to be imposed, shall consider—
       (1) the nature and circumstances of the offense and the history
       and characteristics of the defendant;
       (2) the need for the sentence imposed—
           (A) to reflect the seriousness of the offense, to promote res-
           pectfor the law, and to provide just punishment for the
           offense;
           (B) to afford adequate deterrence to criminal conduct;
           (C) to protect the public from further crimes of the defen-
           dant;
           and
7696                UNITED STATES v. BLINKINSOP
judge has all the evidence and its impressions of a defendant’s
credibility, we accord wide latitude to its imposition of
supervised-release conditions, United States v. Daniels, 541
F.3d 915, 924 (9th Cir. 2008), cert. denied, 129 S. Ct. 1600
(2009), “including restrictions that infringe on fundamental
rights,” United States v. Bee, 162 F.3d 1232, 1234 (9th Cir.
1998). Special conditions are permissible, provided that “they
are reasonably related to the goal[s] of deterrence, protection
of the public, or rehabilitation of the offender, and involve no
greater deprivation of liberty than is reasonably necessary for
the purposes of supervised release.” Rearden, 349 F.3d at 618
(citation and internal quotation marks omitted); see United
States v. T.M., 330 F.3d 1235, 1240 (9th Cir. 2003) (“The
conditions imposed run afoul of the supervised release statute
because there is no reasonable relationship between them and
either deterrence, public protection or rehabilitation.”).
Blinkinsop has the burden of showing that the special condi-
tions that he appeals “involve[ ] a greater deprivation of lib-
erty than is reasonably required to achieve deterrence, public
protection, and offender rehabilitation.” United States v. Jere-
miah, 493 F.3d 1042, 1047 (9th Cir. 2007).

   [10] “A condition of supervised release does not have to be
related to the offense of conviction,” because the sentencing
judge is statutorily required “to look forward in time to crimes
that may be committed in the future” by the convicted defen-
dant. United States v. Wise, 391 F.3d 1027, 1031 (9th Cir.
2004); see 18 U.S.C. § 3553(a)(2)(C) (stating a need for the
sentence imposed is “to protect the public from further crimes
of the defendant”). The sentencing judge “must explain [a
sentence] sufficiently to permit meaningful appellate review”
and to communicate “that the parties’ arguments have been

        (D) to provide the defendant with needed educational or
        vocational training, medical care, or other correctional treat-
        ment in the most effective manner[.]
18 U.S.C. § 3553(a).
                    UNITED STATES v. BLINKINSOP                     7697
heard, and that a reasoned decision has been made.” Carty,
520 F.3d at 992; see United States v. Cherer, 513 F.3d 1150,
1159 (9th Cir. 2008) (affirming 293-month term of imprison-
ment for defendant convicted of attempting to entice a minor
to engage in sex acts, because the sentence was correctly cal-
culated within the advisory Sentencing Guidelines, the
§ 3553(a) factors were considered, and “the sentencing judge
provided an adequate explanation for the sentence”). A dis-
trict judge need not state at sentencing the reasons for impos-
ing each condition of supervised release, if it is apparent from
the record. Daniels, 541 F.3d at 924. “However, to impose a
condition that implicates a significant liberty interest, the dis-
trict court must support its decision on the record with evi-
dence justifying the condition.” Id.

   Relevant to this case is the statutory mandate that convic-
tion under § 2252A requires supervised release for a “term of
years not less than 5, or life.” 18 U.S.C. § 3583(k) (emphasis
added); see U.S.S.G. § 5D1.2(b)(2) (providing that “the
length of the term of supervised release shall not be less than
the minimum term of years specified for the offense . . . and
may be up to life, if the offense is a sex offense”). Therefore,
Blinkinsop was sentenced to the mandatory minimum term of
supervised release during which his conditions apply, special
and otherwise, as opposed to life.10 He challenges three spe-
cial conditions of his supervised release: staying away from
places frequented by children (Special Condition 4), possess-
ing a camera phone (Special Condition 7), and banning his
possession of a computer capable of accessing the Internet
(Special Condition 13).

A.     Staying Away From Places Frequented by Children

  Special Condition 4 provides: “ Defendant shall not go to
or loiter near school yards, parks, play grounds, arcades, or
  10
     Blinkinsop’s counsel noted at sentencing that “the law provides for a
lifetime of supervised release.” Sentencing Transcript at 7.
7698              UNITED STATES v. BLINKINSOP
other paces primarily used by children under the age of 18.”
Judgment at 4 (Special Conditions of Supervision). Blinkin-
sop argues that prohibiting him from going to or loitering near
any school or place primarily used by children under 18 is
overbroad. This court has upheld a more restrictive condition
prohibiting a defendant, convicted of a child-pornography
crime, for life from “frequent[ing], or loiter[ing], within 100
feet of school yards, parks, public swimming pools, play-
grounds, youth centers, video arcade facilities, or other places
primarily used by persons under the age of 18” or living
“within direct view” of any of these areas. Daniels, 541 F.3d
at 928 (alterations and emphasis added); see Rearden, 349
F.3d at 620 (affirming special condition prohibiting defendant
convicted of a child-pornography crime from “frequenting or
loitering within one hundred feet of schoolyards, parks, public
swimming pools, playgrounds, youth centers, video arcade
facilities, or other places primarily used by children under the
age of eighteen”); see also United States v. Brogdon, 503 F.3d
555, 558 (6th Cir. 2007) (affirming supervised-release condi-
tions prohibiting defendant convicted of a child-pornography
crime from “engag[ing] in any direct or indirect contact with
any child under the age of eighteen,” requiring that he “not
loiter near schoolyards, playgrounds, swimming pools,
arcades, theaters, or other places frequented by children,” that
“he not date any woman who has children under the age of
eighteen in her custody,” that “his place of residence not be
located close to any childhood parks, schools, playgrounds,
public pools or any other location frequented by children,”
and that his “probation officer may impose a curfew if it is
deemed necessary” (alteration and emphases added)).

  Like Blinkinsop, Daniels had no prior record of sex-crime
convictions; he was convicted of receiving child pornography
and had downloaded hundreds of images of child pornogra-
phy from the Internet, including many “sadomasochistic
images of prepubescent children and over 600 images depict-
ing identified victims of child sexual abuse.” Daniels, 541
F.3d at 927 (internal quotation marks omitted). Our court con-
                    UNITED STATES v. BLINKINSOP                  7699
cluded that there was no error in prohibiting his access to chil-
dren, because the “sheer volume” of Daniel’s child-
pornography collection suggested that he “at least had a sex-
ual interest in children and that preventing his loitering
around or living near areas where children frequent was rea-
sonably related to his offense of conviction and to the goals
of rehabilitating Daniels and protecting the public from his
potential sexual interest in children.” Id. at 928. In addition,
Special Condition 9, which Blinkinsop did not appeal, states
that, if required, he must “register as a sex offender” under the
Adam Walsh Sex Offender Registration and Notification Act
of 2006 (“SORNA”), 42 U.S.C. §§ 16901-16981, which reg-
istration would result in more stringent restrictions.11 Judg-
ment at 4 (Special Conditions of Supervision). During pretrial
supervision, Blinkinsop was subject to SORNA conditions,
including electronic monitoring.

   [11] Although the sentencing judge did not explain his rea-
soning in imposing Special Condition 4, the record shows
Blinkinsop’s continuing sexual interest in children, including
images of sadistic and masochistic acts performed on prepu-
bescent children. See United States v. Betts, 511 F.3d 872,
876 (9th Cir. 2007) (“Circuit law establishes that a sentencing
judge is not required to articulate on the record at sentencing
the reasons for imposing each condition of supervised release,
where we can determine from the record whether the court
abused its discretion.” (footnote, citation, and internal quota-
tion marks omitted)). After analyzing Blinkinsop’s child-
pornography propensities and background, the probation offi-
cer recommended this special condition in the PSR, and the
district judge adopted it. See Daniels, 541 F.3d at 921 (recog-
nizing that “issues [including addictive behaviors] underlying
sex offenses are typically deeply ingrained and require life
  11
    With SORNA, Congress established a national registration system for
sex offenders. 42 U.S.C. § 16901. See United States v. Utesch, 596 F.3d
302, 306-07 (6th Cir. 2010) (discussing requirements and application of
SORNA).
7700              UNITED STATES v. BLINKINSOP
long management” (internal quotation marks omitted)).
Because Special Condition 4 addresses Blinkinsop’s conduct,
promotes his rehabilitation, and protects the public, it gener-
ally does not appear overbroad in achieving these results. See
Bee, 162 F.3d at 1236 (recognizing that “even very broad con-
ditions are reasonable if they are intended to promote the pro-
bationer’s rehabilitation and to protect the public”).

   [12] Blinkinsop has failed to show that Special Condition
4, a standard prohibition in child-pornography cases, is a
greater deprivation on his liberty than required to achieve
deterrence, public protection, and rehabilitation, as a general
matter. See Daniels, 541 F.3d at 928. He has argued specifi-
cally on appeal, however, that this condition of his supervised
release is overbroad in that it prevents him from attending
school events in which his own children are participants. Cf.
United States v. Kerr, 472 F.3d 517, 523 (8th Cir. 2006) (not-
ing that, “because [a convicted possessor and distributor of
child pornography, prohibited access on supervised release to
children] is childless, he is not restricted from contacting his
own children”). Although the sentencing judge recognized
that Blinkinsop “has two young children,” he did not address
this aspect of Special Condition 4 at the sentencing proceed-
ing, and the record otherwise gives us no indication that
Blinkinsop’s being able to attend school events involving his
children was considered in formulating this supervised-release
special condition. Sentencing Transcript at 6. We note with
approval that such a special condition can be tailored so that
some access to a defendant convicted of a child-pornography
crime may be allowed by requiring written permission from
the probation officer, after consulting with treatment pro-
vider(s), to attend school events at which the offender’s chil-
dren are involved. See, e.g., United States v. Stults, 575 F.3d
834, 850 (8th Cir. 2009) (finding reasonable special
supervised-release conditions for defendant convicted of pos-
sessing child pornography that prohibited him from “having
contact or residing with children under the age of 18, includ-
ing his own children, unless approved in advance and in writ-
                    UNITED STATES v. BLINKINSOP                     7701
ing by the probation officer in consultation with the treatment
providers,” and “accessing or coming within 500 feet of
schools, school yards, parks, arcades, playgrounds, amuse-
ment parks, or other places used primarily by children under
the age of 18 unless approved in advance and in writing by
the probation officer” (emphases added)), cert. denied, 130 S.
Ct. 1309 (2010). The probation officer, who has regular con-
tact with a sex offender on supervised release, in consultation
with treatment provider(s), is in the best position to determine
the appropriate contact with minors for a released defendant
convicted of a child-pornography crime, even with the defen-
dant’s children. In fashioning an appropriate supervised-
release special condition concerning contact with minors,
even with the children of a defendant convicted of a child-
pornography crime, the sentencing judge considers the triple
goals of supervised release of rehabilitation, deterrence, and
public protection—and children are members of the public,
who must be protected. See id. at 850. While these
supervised-release goals remain constant, the release progress
of individual convicted, child-pornography defendants and the
circumstances of each case will vary, which places the proba-
tion officer, rather than the sentencing judge, in a position to
monitor a special condition of release involving access to
children by a released convicted defendant of a child-
pornography crime. See Kerr, 472 F.3d at 523 (concluding
that there was no plain error because the sentencing judge
“considered the possibility of revisiting these conditions
[supervised-release restrictions as to contact with children] at
a later date”). School events that involve Blinkinsop’s chil-
dren also will include other minors, and a probation officer
monitoring Blinkinsop’s progress on supervised release will
know when it is appropriate for him to attend various school
events where these minors are present.12
  12
    In reconsidering Special Condition 4, regarding Blinkinsop’s argu-
ment that it prevents him from attending school events involving his chil-
dren, the district judge should consider the applicability of this special
condition, in view of Blinkinsop’s 8-year imprisonment term and the fact
7702                 UNITED STATES v. BLINKINSOP
   [13] Therefore, we vacate supervised-release Special Con-
dition 4 for the district judge to reconsider on limited remand.
Recognizing that the district judge must protect the public,
including other children, the judge specifically should address
Blinkinsop’s argument concerning attending school events
involving his children and determine if Special Condition 4
should be tailored to provide for this contingency as well as
to have written permission of his probation officer prior to
each such attendance.13 Notably, the special conditions of
Blinkinsop’s supervised release are for only 5 years and not
for the rest of his life. We leave to the district judge on
remand the factual determination concerning whether Special
Condition 4, regarding Blinkinsop’s proximity to places fre-
quented by children during his 5-year term of supervised
release, is overbroad in view of his conviction for receiving
a considerable amount of child pornography yet desiring to
attend school events involving his children and whether it can
be revised to accommodate Blinkinsop, while complying with
the goals of supervised release.

that his children were 8 and 5, when his PSR was prepared in 2009. Other
relevant factors include the custodial circumstances of Blinkinsop’s chil-
dren and their geographic location. We do not preclude the district judge’s
maintaining Special Condition 4, if the judge decides that it is necessary
for the shortest statutory time for supervised release, 5 years as opposed
to life, for a defendant convicted of a child-pornography crime. We do
suggest that the written permission of Blinkinsop’s probation officer, after
consultation with any treatment providers, is an appropriate monitoring of
Blinkinsop’s progress on supervised release relative to Special Condition
4.
  13
    We note that Special Conditions 3 and 5, relating respectively to resid-
ing or being “in the company of any child under the age of 18” or socializ-
ing “with anybody who has children under the age of 18,” require prior
approval or “permission of the probation office.” Judgment at 4.
                    UNITED STATES v. BLINKINSOP                     7703
B.     Possession of a Camera Phone or Device for Covert
       Photography

   Special Condition 7 provides: “Defendant shall not possess
camera phones or electronic devices that could be used for
covert photography.” Judgment at 4 (Special Conditions of
Supervision). In opposing Special Condition 7, Blinkinsop
argues that this condition is “over broad, vague, and unjusti-
fied,” because “photography played no role in his offense,”
and there is no need to prohibit him from “using or possessing
this new technology.” Appellant’s Br. at 32. Conditions of
supervised release are not required to be “related to the
offense of conviction”; instead, they can anticipate crimes
that a defendant convicted of a child-pornography crime
might commit in the future. Wise, 391 F.3d at 1031. The
Eighth Circuit has held that a supervised-release restriction on
“use of photographic equipment, including cameras,” did not
deprive the defendant convicted of a child-pornography crime
“of a greater liberty interest than is reasonably necessary”
under plain-error review. United States v. Ristine, 335 F.3d
692, 696 (8th Cir. 2003).14 “Although there was no evidence
in the record that Ristine photographed any minors, he pos-
sessed thousands of photos of underage women,” making it
“reasonable to believe that Ristine likely would photograph
underage women and would exchange those photographs with
other Internet users.” Id.; see United States v. Paul, 274 F.3d
155, 170, 171 (5th Cir. 2001) (affirming supervised-release
condition restricting “access to photographic and audio/video
equipment [ ]as necessary to protect the public,” which pre-
vented the convicted defendant, who pled guilty to possessing
“photographs of naked children, including some children that
were identified as being local neighborhood children” from
his “hobbies” of “photography and repairing cameras” as
  14
    More inclusive and restrictive than Blinkinsop’s Special Condition 7
was the special condition in Ristine, which prohibited this defendant con-
victed of a child-pornography crime “from owning or operating any photo-
graphic equipment including, but not limited to, cameras, digital cameras,
video-taping recorder, camcorders, computers, scanners, and printers.”
335 F.3d at 695.
7704              UNITED STATES v. BLINKINSOP
“necessary to protect the public and to prevent Paul from
committing future criminal conduct”).

   [14] The large number of images stored on Blinkinsop’s
computer and storage equipment make it reasonable to antici-
pate that, even if he has not engaged in covert photography
yet, he might do so in the future. Condition 7 does not impose
any significant deprivation on Blinkinsop’s liberty; it requires
only that he not possess a camera phone or other device for
covert photography. He may have a cell phone, as long as it
does not have a camera module, and he can have a camera,
as long as it is readily identifiable as a camera. The minor
incursion on Blinkinsop’s liberty by this condition is not
greater than is reasonably necessary to protect the public and
to promote Blinkinsop’s rehabilitation. The district judge did
not plainly err by imposing Special Condition 7 during
Blinkinsop’s 5-year, supervised-release term.

C.     Ban on Possessing a Computer or Device Capable of
       Accessing the Internet

   [15] Special Condition 13 provides: “Defendant shall not
possess or use any computer or other electronic device which
can provide access to the Internet.” Judgment at 4 (Special
Conditions of Supervision). Blinkinsop’s challenge to this
special-condition prohibition is reviewed for plain error, since
Blinkinsop did not object at sentencing, Jeremiah, 493 F.3d
at 1046. As the government concedes, banning Blinkinsop’s
Internet usage contravenes United States v. Riley, 576 F.3d
1046, 1050 (9th Cir. 2009). Therefore, Special Condition 13
must be amended or deleted on limited remand.

                       CONCLUSION

   As we have explained, we AFFIRM in part Blinkinsop’s
sentence as to his term of imprisonment and supervised-
release Special Condition 7. We VACATE Blinkinsop’s sen-
tence as to supervised-release Special Conditions 4 and 13
               UNITED STATES v. BLINKINSOP        7705
and order a LIMITED REMAND for reconsideration consis-
tent with this opinion.

  AFFIRMED in part; VACATED and REMANDED in
part.