PUBLISH

FILED
United States Court of Appeals
Tenth Circuit

UNITED STATES COURT OF APPEALS

October 31, 2014

FOR THE TENTH CIRCUIT

Elisabeth A. Shumaker
Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.

No. 13-6207

WESLEY A. BEAR,
Defendant - Appellant.

Appeal from the United States District

Court for the Western District of Oklahoma
(D.C. No. 5:13-CR-00047-M-1)
Submitted on the briefs: *
Brooke A. Tebow, Assistant Federal Public Defender, Oklahoma City, Oklahoma,
for Appellant.
Sanford C. Coats, United States Attorney, and Timothy W. Ogilvie, Assistant
United States Attorney, Oklahoma City, Oklahoma, for Appellee.

Before HARTZ, PHILLIPS, and McHUGH, Circuit Judges.

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is therefore ordered
submitted without oral argument.

McHUGH, Circuit Judge.

Defendant, Wesley A. Bear, pled guilty to one count of failing to register

or update a registration as a sex offender in violation of 18 U.S.C. 2250. At
sentencing, the district court imposed certain special sex offender conditions of
supervised release in addition to its standard conditions of supervised release. Mr.
Bear objected to the conditions restricting his contact with children and requiring
him to submit to sex offender mental health assessment and treatment. The
district court overruled his objections, and Mr. Bear now appeals.
This case requires us to resolve three disputes. First, Mr. Bear argues it was
an abuse of discretion for the district court to impose sex offender conditions
where his conviction of the prior sex offense occurred twelve years before this
conviction. Second, Mr. Bear contends the conditions involve a greater
deprivation of liberty than reasonably necessary to achieve the purposes of
sentencing. Third, Mr. Bear claims the special conditions are not consistent with
pertinent policy statements issued by the Sentencing Commission. Exercising
jurisdiction under 28 U.S.C. 1291, we AFFIRM in part, VACATE in part, and
REMAND to the district court for further proceedings consistent with this
opinion.

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I.

BACKGROUND

In 2001, Mr. Bear was convicted in Iowa state court on two counts of
committing lascivious acts with a child. According to the criminal complaint,
from 1994 to 1996, Mr. Bear forced one female under the age of twelve to engage
in oral and sexual intercourse with him and fondled the genitals of another female
child. As a result of his conviction for these sex offenses, Mr. Bear is required to
register as a sex offender by the Sex Offender Registration and Notification Act
(SORNA), 18 U.S.C. 2250. Nine years after his sex offenses, in 2010, Mr. Bear
was convicted of a sex offender registration violation in a different part of Iowa.
Following his 2010 SORNA conviction, Mr. Bear married and purchased a
trailer, which he placed on tribal land in Tama, Iowa. He used the trailers
address in his Iowa sex offender registration. Shortly thereafter, Mr. Bear, his
wife, and their three young children moved to his mother-in-laws house in
Oklahoma City. Mr. Bear did not update his registration. When this omission was
discovered, Mr. Bear was arrested and charged with the present failure to comply
with SORNA, to which Mr. Bear pled guilty.
The district court sentenced Mr. Bear to twenty-three months of
imprisonment and five years of supervised release. In addition to the standard
conditions of supervised release, the court imposed sex offender conditions of
supervised release. One condition required Mr. Bear to submit to a sex offender
mental health assessment and a program of sex offender mental health treatment,
as directed by the U.S. Probation Officer, until such time as the defendant is
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released from the program by the probation officer. R. Vol. 1 at 31. Two other
conditions prohibited Mr. Bear from being at any residence where children
under the age of 18 are residing without the prior written permission of the U.S.
Probation Officer or associating with children under the age of 18 except in the
presence of a responsible adult who is aware of the defendants background and
current offense, and who has been approved by the U.S. Probation Officer. R.
Vol. 1 at 31.
Mr. Bear objected to the imposition of these conditions, asserting they
violated 18 U.S.C. 3583(d). 1 Specifically, he claimed the underlying sex
offenses, which he committed seventeen years prior to sentencing, were too
remote in time to be reasonably related to the imposition of conditions of
supervised release. He also argued the conditions improperly restricted his right
to see and parent his own children, and the assessment and treatment condition

18 U.S.C. 3583(d) authorizes further conditions of supervised release if each

condition:
(1) is reasonably related to the factors set forth in section 3553(a)(1),
(a)(2)(B), (a)(2)(C), and (a)(2)(D);
(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) . . . .

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was unnecessary because he underwent an assessment and completed treatment

around the time of his sex offense conviction.
The district court overruled Mr. Bears objections and imposed the special
conditions of supervised release. The court reasoned that an assessment and
further treatment based on that assessment were appropriate because there was no
record evidence of a prior assessment or treatment. 2 It also rejected Mr. Bears
objection to the restrictions on his contact with his children, noting the condition
was not a total banMr. Bear could still parent in the presence of an approved
adult supervisorand Mr. Bears prior sex offense, though old, involved minor
children.
Mr. Bear now appeals from the imposition of the challenged sentencing
conditions.

II.
A.

DISCUSSION
Standard of Review

When the defendant objects to a special condition of supervised release at

the time it is announced, this Court reviews for abuse of discretion. United
States v. Dougan, 684 F.3d 1030, 1034 (10th Cir. 2012). Thus, we will not
disturb the district courts ruling absent a showing it was based on a clearly

Mr. Bear was unable to produce records of the alleged prior assessment
and treatment because the doctor who had allegedly performed the treatment had
moved and was unresponsive to Mr. Bears inquiries.
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erroneous finding of fact or an erroneous conclusion of law or manifests a clear

error of judgment. United States v. Batton, 602 F.3d 1191, 1196 (10th Cir. 2010)
(internal quotation marks omitted).
B.

Governing Law

District courts have broad discretion to impose special conditions of

supervised release. See United States v. Mike, 632 F.3d 686, 692 (10th Cir. 2011).
The limits of that discretion are prescribed by 18 U.S.C. 3583(d), which
requires the conditions (1) be reasonably related to the nature and circumstances
of the offense, the defendants history and characteristics, the deterrence of
criminal conduct, the protection of the public from further crimes of the
defendant, or the defendants educational, vocational, medical, or other
correctional needs; (2) involve no greater deprivation of liberty than is reasonably
necessary to achieve the purpose of deterring criminal activity, protecting the
public, and promoting the defendants rehabilitation; and (3) be consistent with
any pertinent policy statements issued by the Sentencing Commission. See 18
U.S.C. 3583(d) (Statutory Sentencing Factors); id. 3553(a); Mike, 632 F.3d
at 692. Sex offender conditions of supervised release may be imposed, even at
sentencing for crimes which are not sex crimes, if supported by 3583(d). United
States v. Hahn, 551 F.3d 977, 98386 (10th Cir. 2008); United States v. King, 431

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F. Appx 630, 63536 (10th Cir. 2011) 3 (unpublished) (affirming sex offender
conditions of supervised release where the defendant was convicted of violating
SORNA); see also United States v. Morales-Cruz, 712 F.3d 71, 72 (1st Cir. 2013)
(affirming sex offender conditions imposed at sentencing for SORNA violation
where the defendant had an extensive criminal record and two prior convictions
for violating SORNA); United States v. Brogdon, 503 F.3d 555, 56366 (6th Cir.
2007) (affirming sex offender conditions imposed at sentencing for being a felon
in possession of a firearm where the defendant had seven convictions for indecent
exposure, some of which involved minors, and a conviction of assault based on
allegations that he had plac[ed] his intimate parts on his three-year old son).
Mr. Bear raises three challenges to the assessment and treatment condition
and the restrictions on his contact with children, which we address in turn. First,
he argues his underlying sex offense conviction is too old to be reasonably related
to the sex-offender conditions imposed. Second, he contends the conditions
involve a greater deprivation of liberty than reasonably necessary in violation of
3583(d)(2). Third, he claims the conditions are not consistent with pertinent
policy statements issued by the Sentencing Commission.

Although not precedential, we find the reasoning of this court's unpublished

opinions instructive. See 10th Cir. R. 32.1 (Unpublished decisions are not precedential,
but may be cited for their persuasive value.); see also Fed. R. App. P. 32.1.

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C.

Mr. Bears prior conviction is reasonably related to his special

conditions of supervised release.

Prior sex offenses can be too temporally remote for sex-offender conditions
of supervised release to be reasonably related to the nature and circumstances of
the offense, the defendants history and characteristics, the deterrence of criminal
conduct, the protection of the public from further crimes of the defendant, or the
defendants educational, vocational, medical, or other correctional needs. United
States v. Dougan, 684 F.3d 1030, 1034 (10th Cir. 2012). There is no bright-line
rule for the outer limit of temporal remoteness, in part because district courts
must consider more than just the age of a defendants prior conviction. Id. at
103435. In addition to the time that has passed since the prior conviction, the
district court must consider whether the special conditions are reasonably related
to the Statutory Sentencing Factors in 18 U.S.C. 3553(a). Id. at 1035; 18
U.S.C. 3583(d)(1); 3553(a)(1), (a)(2)(B)-(D); see also United States v. Vinson,
147 F. Appx 763, 77175 (10th Cir. 2005) (unpublished) (upholding sex
offender conditions based on a nine-year-old conviction where there was no
evidence the defendant had undergone mental health treatment and he had an
intervening conviction for failure to register under SORNA).
In United States v. Mike, we addressed the imposition of special conditions
following an assault conviction, when a defendants sexual offense occurred nine
years before the assault, and twelve years prior to his assault conviction. 632 F.3d
686, 689 (10th Cir. 2011). One condition limited Mr. Mikes access to computers.
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Id. at 693. Although we remanded to have the condition clarified on other

grounds, we held it was reasonably related to both protecting the public from
future crimes and providing Mr. Mike with correctional treatment because he had
committed a gruesome sex offense, he continued to have sexual deviance
problems, and he had serious mental health problems. We held those factors
justified restricting his access to computers and thereby, the material available on
the internet that appeals to individuals prone to committing sexual offenses. Id. at
69394.
We have also recognized significantly older sexual offenses, viewed in the
factual context in which they arose, can be too remote to be reasonably related
to a subsequent offense. Dougan, 684 F.3d at 1031. The defendant in Dougan
pled guilty to robbery sixteen years after being convicted of an aggravated
battery, which was originally charged as sexual battery, and thirty-three years
after being convicted of sexual battery. Id. Mr. Dougan had not shown any
proclivity toward sexual violence between the aggravated battery and robbery
convictions, did not manifest a propensity to do so in the future, and the
government had presented no evidence of a predilection toward sexual
interactions with children. Id. at 1037. In light of those facts, we held Mr.
Dougans sexual offenses were too remote in time to be reasonably related to his
later offenses and did not justify special sex-offender conditions of release. Id.
In Dougan, we identified two other factors relevant to the consideration of
whether old offenses could support the imposition of sex offender conditions of
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supervised release. First, we noted Mr. Dougan had interim convictions for
failure to register as a sex offender under SORNA. Id. While we did not find
those convictions determinative, standing alone, we explained they made the
issue a much closer question. Id. As a second relevant factor, we acknowledged
the case could have been resolved differently if it had involved more troubling
facts, such as a defendant with an extensive history of committing sex crimes
or a history of sexual offenses involving minors. Id. at 103536.
Applying this analysis to the present case, we note the age of Mr. Bears
prior offenses falls between that of the twelve-year-old conviction in Mike and
the seventeen-year-old conviction in Dougan. Mr. Bears prior sex offense
conviction was twelve years prior to sentencing here, and his criminal conduct
underlying that conviction occurred seventeen years before the present SORNA
conviction. Nonetheless, this case presents more troubling facts than Dougan.
Mr. Bears sex offenses occurred multiple times over the course of two years,
involved two child victims, and included oral and sexual intercourse with a child
under the age of twelve. 4 Although the facts in the record here are less graphic
than those described in Mike, Mr. Bears conduct is at least as troubling. Thus we
hold Mr. Bears prior sex offense was reasonably related to the imposition of the
special sex offender conditions and survive his 3583(d)(1) challenge.
4

Although we typically rely on evidence introduced at trial or in an evidentiary

hearing, rather than facts alleged in a criminal complaint, the district court relied on these
allegations at sentencing and Mr. Bear has not disputed them for purposes of appeal.
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The assessment and treatment condition is also reasonably related to

Mr. Bears history and characteristics, the need to protect the public from future
crimes, and his need for correctional treatment. Mr. Bear engaged in sexual acts
with minors, at least one of whom was under twelve. Although Mr. Bear argues
he completed mental health treatment after his sex offense conviction, he has not
supported that allegation with documentation. Furthermore, Mr. Bears
intervening sex offender registration conviction and current SORNA conviction,
while fundamentally different than the underlying sex offenses, are not entirely
unrelated and raise concerns that Mr. Bear may not comply with his ongoing
SORNA obligations. This justifies special conditions related to rehabilitation and
monitoring. See Dougan, 684 F.3d at 1037; Vinson, 147 F. Appx at 77273
(affirming an assessment and treatment condition where the defendant could not
establish he had previously been assessed, so long as treatment was required only
if supported by the assessment). Accordingly, the assessment and treatment
condition also survives Mr. Bears 3583(d)(1) challenge.
D.

The special condition of supervised release restricting Mr. Bears

contact with his children creates a greater deprivation of
liberty than reasonably necessary, but the special condition
requiring mental health assessment and treatment does not.

Special conditions of supervised release must involve[] no greater deprivation of

liberty than is reasonably necessary to achieve the purpose of deterring criminal activity,
protecting the public, and promoting the defendants rehabilitation. 18 U.S.C.
3583(d)(2); see also United States v. Mike, 632 F.3d 686, 692 (10th Cir. 2011).
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Mr. Bear argues the challenged conditions here impose an unreasonable deprivation of
his liberty. We begin our analysis of this claim by addressing the conditions of supervised
release limiting Mr. Bears contact with children. We then turn to the assessment and
treatment condition and consider both Mr. Bears statutory challenge and his argument,
advanced for the first time on appeal, that the district court improperly delegated its
sentencing authority to Mr. Bears probation officer.
1.

Restrictions on Mr. Bears Contact with Children

Mr. Bear argues the restrictions on his contact with children are improper

because they prevent him from being alone with his own children. When a
defendant has committed a sex offense against children or other vulnerable
victims, general restrictions on contact with children ordinarily do not involve a
greater deprivation of liberty than reasonably necessary. United States v. Smith,
606 F.3d 1270, 128283 (10th Cir. 2010). But restrictions on a defendants
contact with his own children are subject to stricter scrutiny. [T]he relationship
between parent and child is constitutionally protected, and a father has a
fundamental liberty interest in maintaining his familial relationship with his
[children]. United States v. Edgin, 92 F.3d 1044, 1049 (10th Cir. 1996). Given
the importance of this liberty interest, special conditions that interfere with the
right of familial association can do so only in compelling circumstances, Smith,
606 F.3d at 1284, and it is imperative that any such restriction be especially
fine-tuned to achieve the statutory purposes of sentencing. Edgin, 92 F.3d at
1049.
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The present record does not provide compelling evidence that could support
restrictions on Mr. Bears contact with his own children. The government presented no
evidence that in the twelve years since Mr. Bears sex offense conviction he has
committed any sexual offense, displayed a propensity to commit future sexual offenses,
or exhibited a proclivity toward sexual violence. Nor is there any evidence in the record
that Mr. Bear has continuing deviant sexual tendencies, fantasizes about having sex with
children, or has otherwise displayed a danger to his own three children. Under these
circumstances, Mr. Bears 2001 conviction for sex offenses is simply too remote in time,
standing alone, to provide compelling evidence justifying infringement upon Mr. Bears
right of familial association. Thus we vacate the conditions limiting Mr. Bears ability to
be at his childrens residence and his ability to be alone with his children without
supervision.
2.

Mental Health Assessment and Treatment

We next consider Mr. Bears challenge to the assessment and treatment

condition. Although conditions requiring a mental health evaluation and treatment

affect a liberty interest and must be supported by particularized findings by the
district court, we have generally found a defendants commission of a sex crime
enough to require an initial mental health assessment and treatment consistent
with that assessment. See Mike, 632 F.3d at 69899. Where the district court was
unable to confirm whether Mr. Bear had been assessed and treated at the time of
his sex offense convictions, it did not impermissively invade Mr. Bears liberty

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interests by requiring a mental health assessment and treatment as a condition of

supervised release.
For the first time on appeal, Mr. Bear raises a related but distinct issue. He
argues the assessment and treatment condition unconstitutionally delegates
sentencing authority to the probation officer. We review this argument for plain
error. United States v. Teague, 443 F.3d 1310, 1314 (10th Cir. 2006). To prevail
on this unpreserved claim, Mr. Bear must establish (1) that the district court
committed error, (2) that the error was plain, and (3) that the error affected his
substantial rights. United States v. Charles, 576 F.3d 1060, 1065 (10th Cir.
2009). Because we conclude the district court did not err, we do not reach the
other requirements of plain error review.
Article III of the United States Constitution confers the authority to impose
punishment on the judiciary, and the judiciary may not delegate that authority to
a nonjudicial officer. Mike, 632 F.3d at 695; United States v. Kent, 209 F.3d
1073, 1078 (8th Cir. 2000). To decide whether a condition of supervised release
improperly delegates judicial authority to a probation officer, we distinguish
between [permissible] delegations that merely task the probation officer with
performing ministerial acts or support services related to the punishment imposed
and [impermissible] delegations that allow the officer to decide the nature or
extent of the defendant's punishment. Mike, 632 F.3d at 695. This inquiry
focuses on the liberty interest affected by the probation officers discretion.
Conditions that touch on significant liberty interests are qualitatively different
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from those that do not. Id. As a result, allowing a probation officer to make the
decision to restrict a defendants significant liberty interest constitutes an
improper delegation of the judicial authority to determine the nature and extent of
a defendants punishment. Id.
In Mike, we explained that certain mental health treatment tools like
residential treatment, penile plethysmograph testing, and the involuntary
administration of psychotropic drugs constitute greater infringements on a
defendants liberty than outpatient mental health care or other more routine
treatment and assessment tools. Id. at 69596; see also Addington v. Texas, 441
U.S. 418, 425 (1979); United States v. Bradley, 417 F.3d 1107, 1113 (10th Cir.
2005); United States v. Stoterau, 524 F.3d 988, 100506 (9th Cir. 2008); United
States v. Weber, 451 F.3d 552, 563 (9th Cir. 2006). However, where a broad
condition of supervised release is ambiguous and could be read as restricting a
significant liberty interest, we construe the condition narrowly so as to avoid
affecting that significant liberty interest. Mike, 632 F.3d at 696 (construing
mental health assessment and treatment conditions of supervised release narrowly
so as not to implicate the defendants significant liberty interests).
Here, the district court required Mr. Bear to submit to a sex offender
mental health assessment and a program of sex offender mental health treatment,
as directed by the U.S. Probation Officer, until such time as the defendant is
released from the program by the probation officer. R. Vol. 1 at 31. Although
the condition is broadly worded, we interpret it to reflect the probation officers
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representation to the district court that the results of the assessment would dictate
the scope of any treatment plan. Similarly, we read the condition as not
delegating to the probation officer the authority to impose conditions that
implicate Mr. Bears significant liberty interests, such as residential treatment,
penile plethysmograph testing, or the involuntary administration of psychotropic
drugs. Construed narrowly, the trial court did not err in imposing the mental
health assessment and treatment conditions of supervised release because they do
not improperly delegate judicial authority to Mr. Bears probation officer.
E.

The conditions of supervised release were consistent

with pertinent policy statements issued
by the Sentencing Commission.

Mr. Bears final argument is that the conditions of supervised release were
not consistent with policy statements issued by the Sentencing Commission.
Because there is nothing in the policy statements supporting a prohibition on
association and contact with children, he contends we must reverse those
conditions. 5 As support for that position, Mr. Bear relies on 18 U.S.C.
3583(d)(3), which requires special conditions to be consistent with any
pertinent policy statements issued by the Sentencing Commission. But we do not
read this provision as requiring the conditions to be expressly covered by policy
5

Mr. Bear also reiterates his argument that there was no evidence that he needed
mental health treatment. As discussed, the absence of any verification that Mr. Bear had
undergone a mental health assessment and treatment after his sex offense conviction and
Mr. Bear subsequent SORNA conviction provided a sufficient connection between this
condition and Mr. Bears current SORNA offense.

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statements. Rather, 3583(d)(3) mandates only that the conditions not directly
conflict with the policy statements. Therefore, when considering challenges to
supervised release conditions brought under 3583(d)(3), courts tend to evaluate
them under 3583(d)(1), which requires that conditions be reasonably related to
certain 3553(a) factors. United States v. Kent, 209 F.3d 1073, 107778 (8th Cir.
2006); see United States v. Hopson, 203 F. Appx 230, 23233 (10th Cir. 2006)
(unpublished); see also United States v. Majors, 426 F. Appx 665, 66869 (10th
Cir. 2011) (unpublished) (citing the Sentencing Guidelines in reviewing a
condition requiring mental health treatment, but primarily deciding the issue as a
challenge to sufficiency of 3553(a) justifications).
As explained above, we reject Mr. Bears 3583(d)(1) challenges and see
nothing in the policy statements that compels a different result. U.S.S.G.
5D1.3(d)(5) recommends mental health program participation if a court has
reason to believe the defendant is in need of treatment. Evidence that a defendant
has committed sex crimes can show a defendant needs mental health treatment.
United States v. Miles, 411 F. Appx 126, 129 (10th Cir. 2010) (unpublished)
(concluding that e-mail messages and chat room comments supported imposition
of sex offender mental health assessment and treatment). Mr. Bear has also failed
to identify any policy statements that discourage limiting his contact with
children other than his own, due to his prior sexual offenses against two child
victims.

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Accordingly, we reject Mr. Bears claim that the special conditions are not
consistent with policy statements issued by the Sentencing Commission.

III.

CONCLUSION

For the foregoing reasons, Mr. Bears sentence is AFFIRMED in part,

VACATED in part, and we REMAND for further proceedings consistent with this
order.

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