United States of America v. Donald R. Miller

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 08-4278
_____________
UNITED STATES OF AMERICA
v.
DONALD R. MILLER,
Appellant.
___________
On Appeal from the District Court
for the Middle District of Pennsylvania
(No. 04-cr-0027)
District Judge: Honorable Malcolm Muir
___________
Argued September 14, 2009
Before: SLOVITER, FUENTES, and SMITH, Circuit Judges
(Opinion Filed: February 5, 2010)

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Ronald A. Krauss, Esq. [ARGUED]
Office of the Federal Public Defender
100 Chestnut Street, Suite 306
Harrisburg, PA 17101
Attorney for Appellant
Theodore B. Smith, III, Esq. [ARGUED]
Christian A. Fisanick, Esq.
Office of the United States Attorney
William J. Nealon Federal Building and Courthouse
235 North Washington Avenue, Suite 311
Scranton, PA 18503
Attorney for Appellee
OPINION OF THE COURT
FUENTES, Circuit Judge:
Appellant Donald R. Miller was sentenced to thirty
months’ imprisonment and a lifetime term of supervised release
following his conviction for possession of child pornography and
possession of marijuana. The District Court imposed eight
special conditions of supervised release, including a restriction
on internet access, mandatory computer monitoring, and a
limitation on association with minors. On appeal, Miller
challenges the duration of his term of supervised release and four
of the eight special conditions. We agree with Miller that the

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lifetime limitation on internet use is a greater restraint of liberty
than is reasonably necessary and that the restriction on his
association with minors is overbroad. Accordingly, we will
vacate and remand to the District Court for further proceedings
consistent with this opinion.
I.
In January 2004, the Federal Bureau of Investigation
(“FBI”) searched Miller’s house after discovering that his
computer had been identified (based on its IP address) as the
source of images of child pornography that were uploaded onto
an internet server in Utah. The FBI agents seized Miller’s
computer and twenty-two computer zip disks. One of the disks
contained more than 1200 pornographic images. Approximately
eleven of the images depicted child pornography. The adult
pornography apparently included five images that could arguably
be characterized as sadomasochistic. United States v. Miller, 527
F.3d 54, 78 (3d Cir. 2008) (“Miller I”). The same search
uncovered a small amount of marijuana in his house.
At his 2006 trial, Miller argued that he had not
downloaded the child pornography images. He testified that he
had never seen the images, did not knowingly copy them to the
zip disk, and looked only at legal adult pornography,
characterizing his collection as “[p]rimarily Playboy centerfolds.”
Id. at 74. He suggested that the images might have been
downloaded by a computer hacker, noting that around the time
that they were downloaded, he had been the victim of a billing
fraud for a pornography website. A defense expert offered
testimony that the images were among several hundred copied
onto the zip disk in periodic intervals over a seven-hour period,
indicating that they might have been copied automatically,
perhaps by a computer virus. The expert also explained that a

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Due to ex post facto concerns, the District Court used1
the 2003 edition of the Guidelines Manual. See U.S.S.G.
§ 1B1.11(b)(1).
user might inadvertently download multiple image files when he
believes he is downloading only one. This testimony was
countered by a government agent, who noted that the images on
the zip disk had been “extracted” and thus were not the type of
“embedded” files described by the defense. Id. at 66. The agent
also expressed doubt that anyone would hack into another
person’s dial-up internet connection to transmit data that would
be attributed to that person’s IP address, id., or that any virus
existed that would download child pornography onto a person’s
computer, id. at 63 n.8.
Despite Miller’s defense, the jury convicted him on three
counts of the five-count Indictment: (1) knowingly receiving
child pornography, in violation of 18 U.S.C. § 2252A(a)(2); (2)
knowingly possessing child pornography, in violation of 18
U.S.C. § 2252A(a)(5)(B); and (3) possession of marijuana, in
violation of 21 U.S.C. § 844(a). Miller was acquitted on two
counts, transporting and shipping child pornography by computer
and receiving and distributing child pornography by computer.
The District Court calculated Miller’s total offense level as 23,
including a two-level enhancement for obstruction of justice
based on his purported perjury in denying at trial that his
pornography collection included any sadomasochistic images.1
With a criminal history category of I, the advisory Guidelines
range was 46 to 57 months’ imprisonment. The District Court
sentenced Miller to 46 months’ imprisonment on the first two
counts and 12 months’ imprisonment on the marijuana count, to
be served concurrently, and imposed a life term of supervised

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release for the possession of child pornography offense. At the
time of the sentencing, Miller was sixty years old; he is now
sixty-three years old.
In his first appeal, Miller challenged his conviction on the
first two counts on several grounds, including his contention that
separate convictions for receiving and possessing the same
images of child pornography violated the Double Jeopardy
Clause. This Court ruled in Miller’s favor on the double
jeopardy issue and his challenge to the obstruction of justice
enhancement and remanded to the District Court to vacate one of
the two child pornography convictions and resentence Miller
without the obstruction of justice enhancement. Miller I, 527
F.3d at 54. Miller did not challenge the duration or conditions of
his term of supervised release in his first appeal.
On remand, the District Court vacated the conviction for
knowing receipt of child pornography and resentenced Miller
solely on the knowing possession of child pornography and
marijuana counts. Without the enhancement for obstruction of
justice, Miller’s total offense level was 19, resulting in an
advisory Guidelines range of 30 to 37 months, with a mandatory
supervised release term of five years to life pursuant to 18 U.S.C.
§ 3583(k). At an October 7, 2008 sentencing proceeding, the
District Court sentenced Miller to 30 months’ imprisonment to be
followed by a life term of supervised release. The Court also
imposed eight special conditions of supervised release, including
four that are at issue in this appeal: Miller was required to
participate in a sex offender treatment program at his own
expense (Special Condition 1); he was barred from “associat[ing]
with children under the age of 18, except in the presence of an
adult who has been approved by the probation officer” (Special
Condition 3); he was prohibited from using a computer with

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internet access “without the prior written approval of the
[p]robation [o]fficer” (Special Condition 4); and he was required
to submit to random inspections of his computer and permit the
installation of software to monitor his computer use (Special
Condition 7). (App. 6.) At the conclusion of the proceeding,
Miller objected to these supervised release conditions, arguing
that they were not “reasonably related to the offense conduct in
this case.” (Id. at 95.) On October 8, 2008, the District Court
filed an Order formalizing the oral rulings made at the sentencing
proceeding, including the vacation of the receipt of child
pornography count and the entry of conviction on the possession
count (“October Order”). This Order did not mention the term of
supervised release. The District Court filed a Judgment setting
forth the full sentence on October 15, 2008. On the same day,
the District Court signed a Statement of Reasons explaining the
sentence, which is dated October 7, 2008.
On October 14, 2008, Miller filed a motion to correct his
sentence under Federal Rule of Criminal Procedure 35(a),
challenging both the supervised release term and the special
conditions. On October 20, 2008, Miller timely appealed his
sentence to this Court. In a November 17, 2008 Order (the
“November Order”), the District Court granted the Rule 35(a)
motion in part. While acknowledging Miller’s appeal, the Court
stated that it still had jurisdiction to address the Rule 35(a)
motion because the Government had not challenged its
jurisdiction. In addition, the District Court relied on Federal Rule
of Appellate Procedure 4(b)(5), which states that the filing of a
notice of appeal “does not divest a district court of jurisdiction to
correct a sentence under Federal Rule of Criminal Procedure
35(a).”
In substance, the November Order largely affirmed the

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supervised release term and the conditions imposed in the
October sentencing, but it contained a much more thorough
explanation of the Court’s reasoning. The District Court justified
the lifetime term based on the high rate of recidivism among sex
offenders and a Sentencing Guidelines policy statement
recommending the imposition of the statutory maximum
supervised release term on convicted sex offenders, including
child pornography offenders. The District Court also relied on
Miller’s mischaracterization of the nature of his pornography
collection as “Playboy centerfold[]” images, despite his
possession of five images allegedly depicting sadomasochism,
and his continuing denial of any involvement in the possession
of child pornography. Lastly, the District Court explained that
the lifetime term was not greater than reasonably necessary as it
could be terminated if, in the future, there was no need to
continue Miller’s supervision. As to the special conditions, the
District Court indicated that the factors supporting the lifetime
term also provided a basis for each of the four restrictions at
issue.
The November Order altered Miller’s sentence in two
respects. First, the District Court agreed that Special Condition
3—the bar on Miller’s association with minors—was overly
broad based on a non-precedential decision of this Court
rejecting similar language. See United States v. Smyth, 213 F.
App’x 102, 106–07 (3d Cir. 2007). Therefore, the Court
modified the condition to include exceptions for “brief,
unanticipated, and incidental contacts” with minors and for
contacts with Miller’s own family members or children. (App.
107.)
Second, although disagreeing with Miller’s
characterization of Special Conditions 4 and 7 as imposing a

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complete ban on his ability to access the internet, the District
Court sought to minimize confusion by moving the text of
Special Condition 7 to the end of Special Condition 4 “so that
both conditions are read together.” (Id. at 108.) This new,
combined special condition reads as follows:
The defendant shall not use a computer with access
to any “on-line computer service” without the prior
written approval of the [p]robation [o]fficer. This
includes any [i]nternet service provider, bulletin
board system, or any other public or private
computer network[.] The defendant shall submit
to an initial inspection by the U.S. Probation
Office and to any examinations during supervision
of the defendant’s computer and any devices,
programs, or applications. The defendant shall
allow the installation of any hardware or software
systems which monitor or filter computer use. The
defendant shall abide by the standard conditions of
computer monitoring and filtering that will be
approved by this Court. The defendant is to pay
the cost of the computer monitoring, not to exceed
the monthly contractual rate, in accordance with
the probation officer’s direction[.]
(Id. at 106–07.) In all other respects, the District Court denied
Miller’s Rule 35(a) motion. On appeal, Miller challenges the
sentence imposed by the District Court, arguing that the lifetime
duration of his term of supervised release and Special Conditions
1, 3, 4, and 7 subject him to a greater deprivation of liberty than

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The District Court had subject matter jurisdiction2
pursuant to 18 U.S.C. §§ 3231 and 3742(a). We have
jurisdiction to review Miller’s sentence under 28 U.S.C. § 1291.
is reasonably necessary.2
II.
We first address the Government’s argument that Miller
has waived any right to challenge his sentence. According to the
Government, Miller waived the arguments that he now advances
by failing to raise them during his first appeal to this Court;
therefore, the District Court’s judgment must be affirmed in all
respects. Miller disagrees, arguing that because his second
sentencing was de novo, the arguments were not waived and we
are therefore free to review his challenge to the length of his term
and the special conditions of his supervised release. Should we
agree with Miller, we must also determine whether our review is
limited to the District Court’s October Order, which offers
limited reasoning for the Court’s sentencing decision, or if we
can consider the District Court’s November Order ruling on
Miller’s motion under Federal Rule of Criminal Procedure 35(a),
which contains a more detailed statement of reasons but was
issued beyond the seven-day period required by Rule 35(a).
A. Waiver
Although the District Court imposed the same lifetime
term and special conditions in the original sentencing in this case,
Miller did not challenge the supervised release aspect of his
sentence in his first appeal. Consequently, the Government,
invoking the authority of United States v. Pultrone, 241 F.3d 306
(3d Cir. 2001), contends that Miller waived his arguments

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Whether Miller waived his right to appeal the3
reasonableness of the duration and special conditions of his term
of supervised release is a question of law, over which we
exercise plenary review. See United States v. Price, 558 F.3d
270, 277 (3d Cir. 2009).
regarding his term of supervised release.3
Pultrone had been convicted of attempted possession of
cocaine with intent to distribute and was sentenced to 76 months’
imprisonment. Pultrone filed an appeal, and the Government
cross-appealed on the ground that the district court had failed to
apply a mandatory statutory minimum sentence of ten years’
imprisonment. Pultrone voluntarily withdrew his appeal; we
remanded for application of the statutory minimum. Pultrone
was accordingly sentenced to 120 months’ imprisonment, a
sentence he appealed. Assessing whether we had jurisdiction
over the second appeal, we held that Pultrone had waived all of
the arguments contained therein because “[e]ach of these
allegations of error could and should have been raised in that
[first] direct appeal; because Pultrone voluntarily withdrew the
appeal, he failed to preserve these issues.” Id. at 307; accord
United States v. Quintieri, 306 F.3d 1217, 1225 (2d Cir. 2002)
(holding that the law of the case doctrine forecloses the appellate
court from reconsidering issues decided by a previous appellate
panel or previously waived by the defendant); United States v.
Marmolejo, 139 F.3d 528, 530–31 (5th Cir. 1998) (holding that
the defendant had waived his argument regarding the obstruction
of justice enhancement as he did not raise it on appeal from his
original sentencing); United States v. Walterman, 408 F.3d 1084,
1085–86 (8th Cir. 2005) (same); United States v. Whren, 111
F.3d 956, 959–60 (D.C. Cir. 1997) (same). Accordingly, we
dismissed Pultrone’s second appeal for lack of jurisdiction.
Pultrone, 241 F.3d at 308.
Pultrone and the other court of appeals cases we cite
recognize an exception to the waiver doctrine. “[W]hen a case

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is remanded for de novo resentencing, the defendant may raise in
the district court and, if properly preserved there, on appeal to the
court of appeals, issues that he or she had previously waived by
failing to raise them.” Quintieri, 306 F.3d at 1225. In contrast,
in Pultrone, we were addressing a limited resentencing rather
than a de novo proceeding. 241 F.3d at 308. In that posture, we
noted that as the proceeding on remand “reflected only our
direction that the statutory minimum sentence be imposed” and
“because Pultrone abandoned his appeal, no other aspect of his
conviction or sentence was at issue. In this circumstance, ‘[t]he
grant of remand on appeal does not reopen the order appealed
from . . . .’” Id. (quoting United States v. Mendes, 912 F.2d 434,
437–38 (10th Cir. 1990)); accord Whren, 111 F.3d at 960
(instructing that “upon a resentencing occasioned by a remand,
unless the court of appeals expressly directs otherwise, the
district court may consider only such new arguments or new facts
as are made newly relevant by the court of appeals’ decision
. . . .”); Marmolejo, 139 F.3d at 531 (same); Walterman, 408 F.3d
at 1085 (same). As stated in Quintieri, however, when the
resentencing is de novo rather than limited, issues concerning the
first sentence that were previously waived may be raised in the
first instance if warranted by the second sentence. Miller argues
that this exception applies because his second sentencing was
essentially de novo.
Our sister circuits are divided over whether a district court
absent specific direction should generally treat a vacation and
remand of a sentence as a de novo resentencing or as a limited
proceeding in which the sentencing court revisits only the
particular issues identified as grounds for remand. See Quintieri,
306 F.3d at 1228 n.6 (collecting cases on both sides of the circuit
split). In those circuits that have adopted a de novo sentencing
default rule, resentencing is de novo absent explicit direction
otherwise from the remanding appellate court. See, e.g., United
States v. Jennings, 83 F.3d 145, 151 (6th Cir. 1996) (creating a
default rule of de novo resentencing), amended by 96 F.3d 799
(6th Cir. 1996); United States v. Cornelius, 968 F.2d 703, 705–06
(8th Cir. 1992) (same); United States v. Ponce, 51 F.3d 820, 826

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(9th Cir. 1995) (same); United States v. Stinson, 97 F.3d 466, 469
(11th Cir. 1996) (same).
Other circuits follow a default rule of limited
resentencing, in which resentencing is not considered to be de
novo unless expressly designated as such. In these circuits,
“upon a resentencing occasioned by a remand, unless the court of
appeals expressly directs otherwise, the district court may
consider only such new arguments or new facts as are made
newly relevant by the court of appeals’ decision—whether by the
reasoning or by the result.” Whren, 111 F.3d at 960; accord
United States v. Wallace, 573 F.3d 82, 88 & n.5 (1st Cir. 2009);
United States v. Lee, 358 F.3d 315, 321 (5th Cir. 2004); United
States v. Husband, 312 F.3d 247, 250–52 (7th Cir. 2002). The
Second Circuit splits the difference, holding as follows:
[W]hen a sentencing results from a vacatur of a
conviction, we in effect adhere to the de novo
default rule . . . . But when a resentencing is
necessitated by one or more specific sentencing
errors, unless correction of those errors would
undo the sentencing calculation as a whole . . . , we
in effect adhere to the . . . default rule of limited
resentencing.
Quintieri, 306 F.3d at 1228 n.6 (internal citations omitted).
We do not need to determine which default rule is
appropriate here because it is well established that when the
remand includes instructions to vacate at least one interdependent
count of conviction, a de novo sentencing is appropriate. See
United States v. Davis, 112 F.3d 118, 122 (3d Cir. 1997). In
Davis, we endorsed the “sentencing package doctrine,” which
instructs as follows:
[W]hen a defendant is found guilty on a multicount
indictment, there is a strong likelihood that the
district court will craft a disposition in which the
sentences on the various counts form part of an
overall plan. When a conviction on one or more of

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the component counts is vacated, common sense
dictates that the judge should be free to review the
efficacy of what remains in light of the original
plan, and to reconstruct the sentencing architecture
upon remand . . . if that appears necessary in order
to ensure that the punishment still fits both crime
and criminal.
Id. (citation & internal quotation marks omitted); accord
Quintieri, 306 F.3d at 1228 (“[R]esentencing usually should be
de novo when a Court of Appeals reverses one or more
convictions and remands for resentencing . . . .” (emphasis
omitted)); cf. United States v. Goggins, 99 F.3d 116, 118 (3d Cir.
1996) (“[I]f convictions on some counts of a multi-count
indictment are vacated the court may resentence the defendant to
enhanced sentences on the remaining counts.”).
In cases subsequent to Davis, we stressed that the
sentencing package doctrine should be confined to cases in which
the sentences on the underlying counts were interdependent.
McKeever v. Warden SCI-Graterford, 486 F.3d 81, 87–88 (3d
Cir. 2007); United States v. Murray, 144 F.3d 270, 273 n.4 (3d
Cir. 1998). Interdependent offenses “result in an aggregate
sentence, not sentences which may be treated discretely.”
Murray, 144 F.3d at 273 n.4. Applying this test, we conclude
that the sentences on Miller’s two child pornography counts were
interdependent, such that the sentencing package doctrine
applied, and Miller’s second sentencing was de novo.
Accordingly, the term and conditions of supervised release were
squarely at issue during the second sentencing, and Miller did not
waive his current challenges by failing to raise them in his first
appeal.
When computing Miller’s total offense level at the
original sentencing, the District Court grouped the two child
pornography counts pursuant to U.S.S.G. § 3D1.2(d), which
provides that “[a]ll counts involving substantially the same harm
shall be grouped together into a single Group. Counts involve
substantially the same harm within the meaning of this rule . . .

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[w]hen the offense level is determined largely on the basis of . .
. some . . . measure of aggregate harm. . . . .” The Introductory
Commentary to Part 3D explains the policy underlying the
grouping of interrelated counts:
Some offenses that may be charged in
multiple-count indictments are so closely
intertwined with other offenses that conviction for
them ordinarily would not warrant increasing the
guideline range. For example, embezzling money
from a bank and falsifying the related records,
although legally distinct offenses, represent
essentially the same type of wrongful conduct with
the same ultimate harm, so that it would be more
appropriate to treat them as a single offense for
purposes of sentencing. . . .
In order to limit the significance of the
formal charging decision and to prevent multiple
punishment for substantially identical offense
conduct, this Part provides rules for grouping
offenses together. Convictions on multiple counts
do not result in a sentence enhancement unless
they represent additional conduct that is not
otherwise accounted for by the guidelines. In
essence, counts that are grouped together are
treated as constituting a single offense for purposes
of the guidelines.
Section 3D1.2 specifically provides that offenses covered
by the Guideline provisions applicable to Miller’s child
pornography offenses—U.S.S.G. §§ 2G2.2 and 2G2.4—are to be
grouped. When offenses are grouped pursuant to § 3D1.2(d), the
offense level applicable to that Group is the Guideline “that
produces the highest offense level.” Id. § 3D1.3(b). The child
pornography counts and the possession of marijuana count
involved unrelated acts and were not so grouped. For Miller’s
grouped offenses, the receipt of child pornography count
produced the highest offense level—17—and this was used as the

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base offense level. See id. § 2G2.2. Ultimately, the District
Court sentenced Miller to 46 months’ imprisonment on the
grouped child pornography counts. This “constituted an
aggregate sentence that was based upon the . . . interdependence”
of the child pornography counts. Davis, 112 F.3d at 123. As the
offenses were grouped, they “result[ed] in an aggregate sentence,
not sentences which may be treated discretely.” Murray, 144
F.3d at 273 n.4.
In Miller’s first appeal, we remanded the case to the
District Court to correct the erroneous entry of separate
convictions on the two duplicative child pornography counts in
violation of the Double Jeopardy Clause. United States v. Miller,
527 F.3d 54, 72 (3d Cir. 2008). The District Court left the
possession count in place and vacated the receipt count. In
recalculating Miller’s offense level for the possession count, the
District Court could not rely on a discrete sentence previously
imposed for that offense. Instead, the District Court had to
ungroup the two offenses and determine the base offense level
applicable to the receipt count alone—15. See U.S.S.G. § 2G2.4.
Such resentencing on one of two interrelated and grouped counts
is the type of de novo proceeding contemplated in Davis and
Murray rather than the limited resentencing considered in
Pultrone. As such, the supervised release term was equally at
issue in the second sentencing. While the District Court
happened to impose an identical term of supervised release at the
first and second sentencings, the term was imposed anew at the
second sentencing, when the District Court had the freedom to
craft an appropriate term and both parties had the opportunity to
make arguments and raise objections. Thus, the duration and
special conditions of Miller’s term of supervised release were
squarely presented at the second de novo sentencing, and Miller
did not waive these issues by failing to challenge his term of
supervised release in his first appeal. See Quintieri, 306 F.3d at
1225.
In sum, we reaffirm the sentencing package doctrine
endorsed in Davis. When a conviction on one or more

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Following the October sentencing proceeding, the4
District Court issued three documents: (1) a Statement of
Reasons dated October 7, 2008 and signed by the Court on
October 15, 2008; (2) an Order dated October 8, 2008
formalizing the oral rulings made at the sentencing proceeding;
and (3) a Judgment dated October 15, 2008. The October 8,
2008 Order concerns only the incarceration portion of Miller’s
sentence, not the term of supervised release. (App. 98.) Thus,
while it is properly before this Court, it is not relevant to
Miller’s challenge to his term of supervised release.
interdependent counts is vacated on appeal, the resentencing
proceeding conducted on remand is de novo unless we
specifically limit the district court’s authority. Moreover, counts
that were grouped pursuant to the Sentencing Guidelines at the
original sentencing are interdependent, such that the vacation of
one of the grouped counts requires a de novo sentencing on
remand unless we direct otherwise. We conclude therefore that
Miller’s second sentencing proceeding was de novo and that he
did not waive his current challenge to the term and conditions of
his supervised release by failing to raise it during his first appeal.
B. The November Order
Before reaching the merits of Miller’s appeal, we must
determine whether we should confine our review to the District
Court’s October Judgment and Statement of Reasons (“October
Judgment”), or whether we may also consider the District4
Court’s November Order responding to Miller’s motion for
correction of his sentence pursuant to Federal Rule of Criminal
Procedure 35(a) (“Rule 35(a) Motion”). Rule 35(a) authorizes a
district court to “correct a sentence that resulted from
arithmetical, technical, or other clear error” at any point “within
seven days after sentencing.” While Miller filed his Rule 35(a)
Motion on October 14, 2008, within seven days of the October 7,
2008 sentencing proceeding, the District Court’s ruling on the
motion was outside of the seven-day window. In its November

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In his opening brief on appeal, Miller contends that we5
may recognize authority for the District Court’s November
Order under 18 U.S.C. § 3583(e)(2), which allows a district
court to modify conditions of supervised release. Alternatively,
Miller argues that we may view his Rule 35(a) Motion as a
motion for reconsideration, which the District Court had
inherent authority to consider. As Miller’s counsel agreed at
oral argument that only the October Judgment is properly before
us, we decline to address either of the alternative grounds of
authority for the November Order posited by Miller.
Order, the District Court granted Miller’s motion in part,
modifying Special Conditions 3, 4, and 7 (relating to contact with
minors, internet access, and random computer inspections). The
District Court also provided a much more thorough explanation
of the reasons underlying its sentencing decisions.
Rule 35(a)’s seven-day limitation is jurisdictional, such
that a district court lacks authority to act under the Rule outside
this period. United States v. Washington, 549 F.3d 905, 915–16
(3d Cir. 2008); United States v. Higgs, 504 F.3d 456, 458–59,
464 (3d Cir. 2007). Moreover, “the seven-day limit in the Rule
does not apply to counsel’s motion. It is expressly in terms of the
District Court’s action.” Higgs, 504 F.3d at 458–59. This was
a “deliberate” decision by the Advisory Committee, which “noted
that the ‘stringent time requirement’ of seven days was shorter
than the time for appealing the sentence so that if the court did in
fact correct the sentence within the seven days, the defendant
could still timely appeal the sentence if s/he so desired.” Id. at
458 (quoting Fed. R. Crim. P. 35 advisory committee’s note).
Given that both Miller and the Government acknowledged
the jurisdictional bar and conceded at oral argument that we
should confine our review to the October Judgment, we will not
consider the November Order as part of the record on appeal.5
III.

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We review the sentence imposed by the District Court6
for abuse of discretion except where it “was imposed without
objection,” in which case we “review only for plain error.”
Having concluded that Miller’s arguments were not
waived, we turn to the merits of his appeal. Miller’s sole
challenge is that the District Court’s supervised release term and
conditions in the October Judgment are outside of the bounds of
18 U.S.C. § 3583(d) and thus an abuse of discretion. Section
3583 authorizes a sentencing court to impose a condition of
supervised release “to the extent that such condition–(1) is
reasonably related to the factors set forth in [18 U.S.C.
§ 3553(a)]; [and] (2) involves no greater deprivation than is
reasonably necessary for the purposes set forth in section
[3553(a)] . . . .” 18 U.S.C. § 3583(d)(1) & (2). The relevant
factors, as delineated in § 3553(a), are as follows:
(1) the nature and circumstances of the
offense and the history and characteristics of the
defendant;
(2) the need for the sentence imposed—
***
(B) to afford adequate deterrence to
criminal conduct;
(C) to protect the public from
further crimes of the defendant; and
(D) to provide the defendant with
needed educational or vocational training,
medical care, or other correctional treatment in
the most effective manner . . . .
Miller contends that the length of his supervised release term was
longer than reasonably necessary and that Special Conditions 1,
3, 4, and 7, described supra, were not reasonably related to the
purposes articulated in the pertinent § 3553(a) factors.6

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United States v. Voelker, 489 F.3d 139, 143 n.1 (3d Cir. 2007).
A sentencing judge is given wide discretion in imposing
a term of supervised release. Nevertheless, that discretion is not
unbounded as “[i]t must be exercised within the parameters of 18
U.S.C. § 3583.” United States v. Voelker, 489 F.3d 139, 143 (3d
Cir. 2007) (citing United States v. Crandon, 173 F.3d 122, 127
(3d Cir. 1999)). Under 18 U.S.C. § 3583(d), a court may impose
a special condition of supervised release only after considering
whether it is “reasonably related” to certain factors set forth in 18
U.S.C. § 3553(a): the nature of a defendant’s offense and the
defendant’s history and characteristics; the need for adequate
deterrence; the need to protect the public from further crimes of
the defendant; and the need to provide the defendant with
correctional treatment including vocational training or medical
care. “[I]t is not necessary for all of the factors identified in §
3553(a) to be present before a special condition of supervised
release may be imposed.” United States v. Sicher, 239 F.3d 289,
291 (3d Cir. 2000). Yet, “[c]ourts generally cannot impose . . .
a condition—even one with a clearly rehabilitative
purpose—without evidence that the condition imposed is
‘reasonably related,’ that is, related in a ‘tangible way’ to the
crime or to something in the defendant’s history.” United States
v. Pruden, 398 F.3d 241, 248–49 (3d Cir. 2005) (quoting United
States v. Evans, 155 F.3d 245, 249 (3d Cir. 1998)). Under this
standard, “a condition with no basis in the record, or with only
the most tenuous basis, will inevitably violate § 3583(d)(2)’s
command that such conditions ‘involve[] no greater deprivation
of liberty than is reasonably necessary.’” Pruden, 398 F.3d at
249.
We have consistently required that district courts explain
and justify conditions of supervised release. See Voelker, 489
F.3d at 144 & n.2; United States v. Warren, 186 F.3d 358, 366
(3d Cir. 1999). A district court must “state the reasons in open
court for imposing a particular” special condition so that the
appellate court is not left to speculate about the reasons. United

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For the reasons that follow, we conclude that some of7
the special conditions of Miller’s term of supervised release are
substantively unreasonable, and we remand for resentencing.
As we reverse on substantive grounds, we need not engage in
an extensive discussion of the procedural reasonableness of the
sentence. We wish to mention, however, that in the October
Judgment, the District Court failed to provide an adequate
justification for imposing the special conditions of supervised
release currently challenged on appeal. While declining to rule
on the adequacy of an order that is not properly before us, we
note that the November Order provides a much more thorough
explanation of the District Court’s reasoning.
Inasmuch as we said in Miller I that Miller’s testimony
that to his knowledge he did not possess any sadomasochistic
images could not be a basis for an obstruction of justice
enhancement at sentencing, we now wish to reaffirm that the
District Court should not rely on these statements in
resentencing Miller on remand. 527 F.3d at 81.
States v. Loy, 191 F.3d 360, 371 (3d Cir. 1999) (citations
omitted). Where the court does not make clear why it imposed
a given condition, “we cannot properly review [a defendant’s]
abuse of discretion claim” challenging the condition and may
therefore remand to the district court for further explanation. Id.
Alternatively, we may affirm the condition if we can “‘ascertain
any viable basis for the . . . restriction in the record before the
District Court . . . .’” Voelker, 489 F.3d at 144 (quoting Warren,
186 F.3d at 367).7
Miller challenges both the lifetime term and the four
special conditions set forth above. In Voelker, faced with similar
arguments, we concluded that we did not need to “separately
address [Voelker’s] challenge to the term of his supervised
release. Our discussion of the propriety of the conditions
imposed on that term applies to duration of the term with equal
force.” Id. We cannot truly assess the propriety of the length of
the term of supervised release without considering the

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The Government argues that Miller did not preserve his8
objection regarding the term of supervised release such that it
is subject to review only for plain error. (Gov’t Br. 34.) We
disagree. At the sentencing hearing, following the imposition
of the sentence by the District Court, Miller’s counsel stated
“for the record, we would object to the special conditions of
supervised release which you imposed today . . . .” (App. 95.)
In this moment, counsel did not expressly object to the length
of the term of supervised release. Earlier in the proceeding,
however, Miller’s counsel asked the District Court to impose “a
reasonable term of supervised release . . . .” (Id. at 80)
(emphasis added). Given the obvious conclusion that Miller’s
counsel would not deem a lifetime term to be reasonable, this
request was sufficient to preserve Miller’s objection to the
lifetime duration of his term of supervised release.
restrictiveness of the conditions imposed. We will adopt this
approach in the instant case and “focus on the propriety of the
conditions of the supervised release.” Id.8
A. Special Conditions 4 and 7—Internet Ban and
Computer Monitoring
As previously stated, Special Condition 4 prohibits Miller
from “us[ing] a computer with access to any ‘on-line computer
service’ without the prior written approval of the [p]robation
[o]fficer.” (App. 6.) This includes any computer with access to
the internet. Special Condition 7 requires Miller to submit to
monitoring of his computer and “allow the installation of any
hardware or software systems which monitor or filter computer
use” at his expense. (Id.) Miller objects to these special
conditions as “not reasonably related to the circumstances of the
offense or [his] history” and as “so overbroad as to involve a
much greater deprivation of liberty than is reasonably necessary.”
(Miller Br. 37.) To assess the merits of Miller’s challenge, an
analysis of our prior cases is instructive.
A series of four cases lays out our approach to supervised

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release conditions restricting computer and internet usage for
child pornography offenders. In general, our precedent
recognizes that such restrictions, as they bear on tools that are
essential in modern life for legitimate purposes of
communication, commerce, and information-gathering, must be
narrowly tailored according to the context of the particular
offense.
In Voelker, 489 F.3d at 142, the defendant was convicted
of receipt of child pornography and sentenced to 71 months’
imprisonment followed by a life term of supervised release.
Voelker had also exposed the buttocks of his three-year-old
daughter to another adult male over a webcam while chatting
with him online, although he was not charged based on this
conduct. Id. at 142. On appeal, Voelker challenged the length
and conditions of his term of supervised release. Id. at 142–44.
The computer-related condition prohibited Voelker from
“accessing any computer equipment or any ‘on-line’ computer
service at any location, including employment or education. This
includes, but is not limited to, any internet service provider,
bulletin board system, or any other public or private computer
network . . . .” Id. at 143.
We vacated the conditions of supervised release,
explaining that “[c]onditions of supervised release must be
supported by some evidence that the condition imposed is
tangibly related to the circumstances of the offense, the history
of the defendant, the need for general deterrence, or similar
concerns [set out in § 3553(a)].” Id. at 144. Applying this test,
we held that the outright lifetime ban on accessing computers or
the internet was “the antithesis of a ‘narrowly tailored’ sanction,”
“a greater deprivation of liberty than is reasonably necessary,”
and “not reasonably related to the factors set forth in . . . § 3583.”
Id. at 144–45. We expressed two primary concerns with the
computer condition. First, we emphasized the “extraordinary
breadth” of the restriction, which we described as “lifetime
cybernetic banishment.” Id. at 144, 148. We further noted that
“we have never approved such an all-encompassing, severe, and

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permanent restriction . . . .” Id. at 145. Focusing on “[t]he
ubiquitous presence of the internet and the all-encompassing
nature of the information it contains . . .” and “the extent to
which computers have become part of daily life and commerce,”
we found it “hard to imagine how Voelker could function in
modern society given this lifetime ban on all forms of computer
access and use.” Id. at 145, 148. Second, we stressed that while
“Voelker’s conduct was reprehensible, he did not use his
computer equipment to seek out minors nor did he attempt to set
up any meetings with minors over the internet . . . .” Id. at 146.
The Voelker court specifically distinguished United States
v. Crandon, 173 F.3d 122 (3d Cir. 1999), in which we approved
a three-year supervised release term with a special condition
barring the defendant from accessing the internet except as
specifically approved by his probation officer. Crandon was
distinguishable, the Voelker court held, on the basis of the
duration of the supervised release term; the existence of
exceptions to the prohibition; and the Crandon defendant’s use
of the internet to meet and develop a relationship with a fourteen-
year-old girl, which culminated in sexual relations with her. 489
F.3d at 145–46. As “Crandon used the [i]nternet as a means to
develop an illegal sexual relationship with a young girl over a
period of several months,” we upheld the conditions of his
supervised release as “narrowly tailored” and “related to the dual
aims of deterring him from recidivism and protecting the public.”
173 F.3d at 127–28.
While distinguishing Crandon, the Voelker court looked
favorably on United States v. Freeman, 316 F.3d 386 (3d Cir.
2003), as “illustrat[ing] the kind of tailoring the court should
have considered” in crafting the computer restriction. 489 F.3d
at 146. In Freeman, the defendant pled guilty to receipt and
possession of child pornography after being caught copying
computer files of child pornography images from an undercover
police officer posing as a collector of child pornography.
Freeman, 316 F.3d at 387. Freemen subsequently admitted to
molesting young boys and pursuing babysitting jobs to have the

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opportunity to photograph boys in the nude. Id. at 388. He also
had two prior sexual misconduct convictions. Id. The sentencing
court imposed a sentence of seventy months’ imprisonment and
five years of supervised release. Id. at 389. During the term of
supervised release, Freeman was banned from having computer
equipment in his residence and from possessing or using a
computer with internet access without prior written approval of
his probation officer. Id. at 389–90. Freeman was also subject
to unannounced inspections of his residence and possessions
during his supervised release term to monitor his compliance
with the computer equipment ban. Id. at 390.
On appeal, we made clear that “[t]here is no need to cut
off [a child pornography offender’s] access to email or benign
internet usage when a more focused restriction, limited to
pornography sites and images, can be enforced by unannounced
inspections of material stored on [the offender’s] hard drive or
removable disks.” Id. at 392. We specifically distinguished
Crandon on the ground that the offender in that case had “used
the internet to contact young children and solicit inappropriate
sexual contact with them,” a “use of the internet [that] is harmful
to the victims contacted and more difficult to trace than simply
using the internet to view pornographic web sites.” Id. As a
result, Crandon and similar offenders merited a more severe
restriction, and we took care to emphasize that “[w]e are not in
any way limiting our ability to . . . restrict the use of computers
when a defendant has a past history of using the internet to
contact children.” Id. In Freeman’s case, however, “a total ban
on internet access” was not warranted. Id. Furthermore, we
added that if Freeman violated a more tailored limitation on his
access to pornography websites and images, then the district
court might impose a broader restriction on his internet access.
Id.
Most recently, in United States v. Thielemann, 575 F.3d
265, 278 (3d Cir. 2009), we upheld a computer restriction as “not
disproportionate when viewed in the context of Thielemann’s
conduct.” On his computer, Thielemann possessed several

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hundred pornographic images of children. Id. at 268. The
computer also contained logs of online “chats” with Phillips, an
individual with whom Thielemann had a sexual relationship. Id.
During one of these chats, Thielemann encouraged Phillips to
have sexual contact with an eight-year-old girl. Id. Thielemann
pled guilty to receipt of child pornography; as part of his plea
agreement, Thielemann admitted to the following conduct:
[H]e engaged in chats with Phillips, and . . . during
a chat, Phillips had on his lap a minor, visible to
the defendant, and at the defendant’s
encouragement and inducement [Phillips] did
simulate masturbation of the minor, and did pose
the minor in order to effect the lascivious
exhibition of the minor’s pubic area.
Id. at 269 (internal quotation marks & citation omitted).
Thielemann was sentenced to 240 months’ imprisonment and a
ten-year term of supervised release. Id. at 270. Pursuant to one
of the special conditions of supervised release, Thielemann was
prohibited from “own[ing] or operat[ing] a personal computer
with [i]nternet access in a home or at any other location,
including employment, without prior written approval of the
Probation Office . . . .” Id. (internal quotation marks omitted)
(alterations in original). He did not object to this special
condition before the district court, subjecting it to plain error
review on appeal. Id.
Comparing the case to Voelker and Crandon, we
concluded that “[t]he terms of Thielemann’s supervised release
are more analogous to those we upheld in Crandon.” Id. at 278.
As Thielemann could use a personal computer as long as it was
not connected to the internet and could seek permission from the
Probation Office to use the internet during his ten-year
restriction, “[t]he parameters of the computer restriction . . . are
far less troubling than those in Voelker.” Id. We further stressed
that “Thielemann did more than simply trade child pornography;
he utilized internet communication technologies to facilitate,
entice, and encourage the real-time molestation of a child.” Id.

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This analysis accords with our recent decision in United9
States v. Heckman, No. 08-3844, __ F.3d __, 2010 WL 59185,
at *3–6 (3d Cir. Jan. 11, 2010).
As “the restriction on computer and internet use . . . share[d] a
nexus to the goals of deterrence and protection of the public,” we
held that it did “not involve a greater deprivation of liberty than
[wa]s necessary” and did not constitute plain error. Id.
These cases make clear that we must consider two key
factors in judging the reasonableness of Special Conditions 4 and
7. First, we must examine the scope of the supervised release
condition, including both its duration and its substantive
breadth—here, the degree to which access to computers and the
internet is restricted. Voelker indicates that we cannot divorce
the amount of time a special condition lasts from the question of
whether that particular special condition is reasonably related to
the considerations laid out in § 3553(a). Second, we must
consider the severity of the defendant’s criminal conduct and the
facts underlying the conviction, with a particular focus on
whether the defendant used a computer or the internet to solicit
or otherwise personally endanger children.9
Assessing these two factors, in comparison to the
conditions imposed in our prior cases, the limitation in Condition
4 on Miller’s access to the internet is overly restrictive while
Condition 7, providing for computer monitoring, is narrowly
tailored and reasonable. With respect to the scope of Condition
4, for the rest of his life, Miller is confined to using a computer
that does not have online access unless he receives approval from
his probation officer to use the internet and other computer
networks. The substantive scope of this special condition is
nearly identical to the computer restriction upheld in Thielemann.
It is less restrictive than the conditions that we rejected in
Freeman and Voelker. Yet, while the substantive scope of
Miller’s condition may be less restrictive than the conditions that
we previously struck down, it applies for the rest of his life.

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Crandon, Freeman, and Thielemann involved three-year, five-
year, and ten-year terms, respectively. 173 F.3d at 125; 316 F.3d
at 389; 575 F.3d at 270. In Voelker, however, the offender faced
a lifetime term, and this duration was an important consideration
in our conclusion that the condition—“lifetime cybernetic
banishment”—was too restrictive. 489 F.3d at 148.
With respect to the criminal conduct at issue, both
Freeman and Voelker distinguished Crandon on the ground that
the defendant in that case had used the internet to actively contact
a child and solicit sexual contact. In Thielemann, the defendant
similarly made use of the internet to “facilitate, entice, and
encourage the real-time molestation of a child.” 575 F.3d at 278.
Crandon and Thielemann received, respectively, three-year and
ten-year terms of supervised release. Miller has not used the
internet in these ways, and yet he still faces a lifetime term.
While we do not intend to minimize the serious harm caused by
possession of child pornography, Miller’s use of the internet
poses a danger that differs in both kind and degree from the
conduct involved in Crandon and Thielemann.
In Freeman, we suggested that, on remand, the district
court should impose a “more focused restriction, limited to
pornography sites and images, [which] can be enforced by
unannounced inspections . . . .” 316 F.3d at 392. Special
Condition 7 anticipates just this form of monitoring of or filtering
of Miller’s computer use. In light of this alternate, less restrictive
possibility, the lifetime limitation on internet use imposed on
Miller is a greater restraint of liberty than is reasonably
necessary. See 18 U.S.C. § 3583(d)(2). Accordingly, we will
vacate Special Condition 4 restricting Miller’s internet access.
We will also vacate Special Condition 7 requiring computer
monitoring as any new conditions of supervised release should
integrate a more focused restriction on internet access with the
requirement of computer monitoring into a comprehensive,
reasonably tailored scheme.
On remand, the District Court may impose a restriction on
Miller’s computer use and internet access and may require

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Special Condition 5 requires Miller to submit to10
random searches, including searches of his computer. Miller
does not challenge this condition on appeal, and it is authorized
under 18 U.S.C. § 3583(d). Miller suggests that, given this
general search condition, the specific computer search provision
of Special Condition 7 is repetitive. This may be so, but Special
Condition 7 is more specifically focused on computer searches
and requires Miller to pay the cost of computer monitoring.
This repetition causes no harm, and it emphasizes that the
purpose of the computer searches is to ensure that Miller is not
visiting any child pornography websites. For these reasons, the
more general search provision contained in Special Condition
5 does not render Special Condition 7 unnecessary.
computer monitoring, but any such conditions must be
appropriately tailored and in accordance with 18 U.S.C.
§ 3583(d)(2). In crafting these conditions, the District Court
should consider their scope—both duration and substantive
breadth—as well as their relationship to the facts underlying
Miller’s conviction, particularly his prior use of the internet.
Additionally, the Court must provide a sufficiently detailed
explanation of its reasoning to permit meaningful appellate
review. See Voelker, 489 F.3d at 150. The District Court’s
“justification should consider the ubiquitous nature of the
internet as a medium of information, commerce, and
communication as well as the availability of [monitoring and]
filtering software that could allow [Miller’s] internet activity to
be monitored and/or restricted.” Id.10
B. Special Condition 1—Sex Offender Treatment
Program
Special Condition 1 mandates that “[t]he [d]efendant shall
participate, at the [d]efendant’s expense, in a sex offender
treatment program, which may include risk assessment testing,
counseling, and therapeutic polygraph examinations and shall
comply with all requirements of the treatment provider.” (App.

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6.) Miller argues that this requirement “does not reasonably
relate to [his] history and characteristics[] and involves a greater
deprivation of liberty than is reasonably necessary.” (Miller Br.
30.) In particular, Miller contends that “[t]he record nowhere
supports a finding that [he] has a propensity to commit any
further sex crimes” and “provides no basis to conclude that [he]
has an addiction to, or obsession with, child pornography . . . that
needs to be treated to deter further criminal conduct.” (Id. at
31–32.) In essence, Miller asserts that while he was technically
convicted of a sex offense, he is not a sex offender “in any
common sense understanding of the term” and thus cannot
reasonably be required to obtain sex offender treatment. (Id. at
32.)
As previously stated, the District Court’s October
Judgment did not provide any justification for imposing Special
Condition 1. Nevertheless, we may affirm the condition if our
own review of the record reveals “‘any viable basis’” for the
restriction. Voelker, 489 F.3d at 144 (quoting Warren, 186 F.3d
at 367). In other words, the record must provide evidence that
mandatory sex offender treatment “is ‘reasonably related,’ that is,
related in a ‘tangible way’ to [Miller’s] crime or to something in
[his] history.” Pruden, 398 F.3d at 248–49 (quoting Evans, 155
F.3d at 249). Miller correctly argues that nothing in his history
supports the need for sex offender treatment. According to the
PSR, before the instant convictions, Miller had no juvenile
adjudications nor adult criminal convictions. Moreover, the PSR
and the arguments presented at the sentencing hearing do not
reference any prior history of sex offenses. Thus, the “history
and characteristics of the defendant” do not justify the
imposition of Special Condition 1. 18 U.S.C. § 3553(a)(1); see
also Pruden, 398 F.3d at 249.
Sex offender treatment is, however, related in a tangible
way to Miller’s crime of conviction, the other Pruden factor. It
is true, as Miller contends, that the number of images of child
pornography that he possessed—eleven—pales in comparison to
the hundreds of images of adult pornography. Yet, despite

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Miller’s attempts at minimization, possession of child
pornography is classified as a sex offense. Furthermore,
possession of even a small number of images of child
pornography contributes to the victimization of children and
“‘creates a market’” for child abuse. See United States v. Goff,
501 F.3d 250, 259–60 (3d Cir. 2007) (citing Osborne v. Ohio,
495 U.S. 103, 109–12 (1990)) (further citation omitted).
Moreover, “[t]here is ample evidence of Congress’s intent that
offenses involving child pornography be treated severely.” Id.
at 258 n.13. In light of the nature and seriousness of the offense,
there is a need to both deter others from similar crimes and to
protect the public from any further crimes by Miller. See 18
U.S.C. § 3553(a)(2)(B) & (C). Sex offender treatment is
reasonably related to these deterrent and preventive goals.
Miller’s current argument can be construed as another
attempt to assert his innocence of the offense of possession of
child pornography. We addressed this challenge thoroughly in
Miller I, where, after considering all of the evidence in its
totality, we upheld the jury’s verdict that Miller knowingly
received child pornography. 527 F.3d at 69. In light of Miller’s
conviction for possession of child pornography—a sex
offense—and our independent review of the record, we cannot
say that there is no basis supporting the special condition
requiring sex offender treatment. Accordingly, we will affirm
the District Court’s imposition of Special Condition 1, requiring
that Miller participate in a sex offender treatment program.
C. Special Condition 3—Association with Minors
Miller appeals Special Condition 3, the associational
condition, which, as stated in the October 15, 2008 Judgment,
provides that “[t]he [d]efendant shall not associate with children
under the age of 18 except in the presence of an adult who has
been approved by the probation officer[.]” (App. 6.) Miller
argues that the “record does not support the conclusion that he
is a danger to minors . . . . Thus, [S]pecial [C]ondition 3’s
restriction on his association with minors is not reasonably
related to Miller or his offense[] and subjects him to a greater

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In United States v. Loy, 237 F.3d 251, 268 (3d Cir.11
2001), we addressed challenges to a similar associational
condition. We noted that “associational conditions placed upon
parolees and probationers . . . have frequently been challenged
as overly broad or vague because they potentially extend to
casual encounters. At this point, it is well established that
associational conditions do not extend to casual or chance
meetings.” Id. at 268–69 (internal citations omitted). We
further explained that even when such conditions do not
expressly exempt chance meetings, we read such an exception
deprivation of liberty than is reasonably necessary.” (Miller Br.
34–35.) In particular, Miller objects to Special Condition 3 as it
prohibits him from being in contact with family members under
the age of eighteen and thus “severely chill[s] [his] ability to
engage in family gatherings.” (Id. at 36.)
In his Rule 35(a) Motion following the imposition of
sentence, Miller raised the same challenges to Special Condition
3. In its November Order, the District Court agreed with Miller
that it was “improper as written.” (App. 107.) In response to
Miller’s arguments, the District Court modified Special
Condition 3 to allow for contact with family members under the
age of eighteen; the modified condition reads as follows: “With
the exception of brief, unanticipated, and incidental contacts, the
[d]efendant shall not associate with children under the age of 18
except for family members or children in the presence of an adult
who has been approved by the probation officer . . . .” (Id.) In
its brief on appeal, the Government asserts that the District Court
lacked jurisdiction to enter the November Order but “agree[s]
that this Court should modify the condition to the same degree
the [D]istrict [C]ourt attempted to modify it.” (Gov’t Br. 44.)
As discussed in Part II.B, supra, the District Court lacked
the authority to enter the November Order, which is not now
before us. Nevertheless, Special Condition 3, as modified in the
November Order, appears to accord with our precedent,11

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into the condition so that “accidental or unavoidable contact
with minors in public places is not forbidden . . . .” Id.
address Miller’s overbreadth concerns, and satisfy the
Government. Accordingly, we will vacate this special condition
of supervised release and remand with the direction that the
District Court may include the modified version of Special
Condition 3 in Miller’s new sentence justified by reference to
Miller’s history or offense of conviction.
IV.
For the foregoing reasons, we will vacate and remand to
the District Court for further proceedings consistent with this
opinion.

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