by Douglas Ankney

The U.S. Court of Appeals for the Tenth Circuit vacated the U.S. District Court for the District of Wyoming’s imposition of a “Sexual Materials Prohibition” and a “Mental Health Condition” upon Monty Englehart’s supervised release because the district court failed to make appropriate findings and provide adequate explanation.

In 1998, Englehart was convicted in Illinois of Aggravated Criminal Sexual Abuse of a 15-year-old girl. In 2012, he was indicted by a federal grand jury in Wyoming on charges that included failing to register as a sex offender and possession of child pornography. He pleaded guilty to failing to register as a sex offender in exchange for dismissal of the remaining charges.

In 2019, the district court sentenced Englehart to time served and five years of supervised release. In October 2020, the Government petitioned the court to modify his supervised release conditions (“Modification Petition”). The Government’s grounds included Englehart’s disclosure to his probation officer, Tracy Morton, of several incidents where his neighbors had shown him pornography on their handheld electronic devices and his disclosure that he had watched pornography for 10 days straight after he had told his mental health counselor of traumatizing incidents in his childhood.

At the ensuing hearing on the Modification Petition, Morton testified that although Englehart was voluntarily participating in mental health treatment and had allowed her to participate in phone calls with his counselor as well as attend in-person sessions, she wanted the Mental Health Condition to require that Englehart authorize release of information for any treatment program because the Probation Office “like[s] to be able to have an open dialogue with the counselor just in case there’s something that needs to be discussed without the individual in the room.” But Morton later clarified that the Probation Office only wanted a release to “confirm attendance” at therapy; “maybe confirm progress”; and to know Englehart’s diagnosis.

Dr. Charles Denison testified about the proposed modified Sexual Materials Prohibition. He testified that he was “certainly not” making any judgments about Englehart’s risk level because he had not examined him. However, Denison testified that the use of adult pornography could be “problematic” for Englehart based on the other risk factors related to his criminal and psychological history, his known use of child pornography, and recent “very high use” of pornography. The district court then made the following pertinent findings:

* Denison was a “significant authority” and had “provided some information to help the Court’s understanding”;

* Englehart had viewed pornography on three separate occasions with the last incident being “10 days straight” of watching pornography:

* Englehart was convicted of sexual abuse of a minor; and

* Englehart’s computer contained child pornography when he was arrested in 2011.

The district court then imposed the following additional or modified supervised-release conditions at issue in this review:

“The Defendant shall not access, possess, send, or receive any visual depictions of sexually explicit conduct as defined in 18 U.S.C. § 2256(2)(B), if the materials, taken as a whole, are primarily designed to arouse sexual desire.”

“The Defendant shall participate in and successfully complete a mental health treatment program approved by the U.S. Probation Officer, and abide by the rules, requirements, and conditions of the treatment program. The Defendant shall not discontinue treatment without the permission of the U.S. Probation Officer.” Englehart appealed.

The Tenth Circuit observed that conditions of supervised release must “(1) be ‘reasonably related’ to the nature and circumstances of the offense, the defendant’s history and characteristics, the deterrence of criminal conduct, the protection of the public from further crimes of the defendant, or the defendant’s educational, vocational, medical, or other correctional needs; (2) ‘involve no greater deprivation of liberty than is reasonable necessary’ for the purposes of deterring criminal activity, protecting the public, and promoting the defendant’s rehabilitation; and (3) be consistent with any pertinent policy statements issued by the Sentencing Commission.” United States v. Martinez-Torres, 795 F.3d 1233 (10th Cir. 2015) (quoting 18 U.S.C. § 3583(d)).

While mandatory conditions required by statute do not require individualized assessment, the sentencing courts are expected to provide a reasoned basis for applying a condition to a specific defendant where that condition is neither required nor recommended by either the Sentencing Commission or Congress. Id. Before a district court can impose a special condition upon a defendant, it must analyze and explain how the special condition furthers the three statutory requirements set forth in § 3583(d) with respect to that particular defendant. United States v. Koch, 978 F.3d 719 (10th Cir. 2020). If the special condition invades a fundamental right or liberty interest, the sentencing court must justify the condition with “compelling circumstances.” United States v. Burns, 775 F.3d 1221 (10th Cir. 2014). “Particularly where the condition of release implicated constitutional interests, such as the right to possess sexually oriented materials involving adults, more detail may be required if the reasons for the restriction are not matters of common knowledge.” Koch. “The Supreme Court has made clear that the First Amendment protects the right of individuals to possess sexually explicit materials involving adults, let alone non-explicit sexually oriented materials.” Id.

The Court stated that in the instant case, as in Koch, the district court merely reviewed Englehart’s personal history; prior conviction; and criminal allegations for which he’d not been convicted—deeming these “concerning” and vaguely summarized the testimony of the Government’s witnesses. But the district court did not mention the three § 3583(d) factors or explain how the sexual materials condition furthered those goals, the Court explained, adding that the district court “made no specific findings with regard to the special conditions of supervised release.” United States v. Dunn, 777 F.3d 1171 (10th Cir. 2015).

With regard to the Mental Health Condition, “district courts enjoy broad discretion to order special conditions of supervised release, including mandatory mental health treatment.” United States v. Jereb, 882 F.3d 1325 (10th Cir. 2018). When mental health treatment does not implicate any fundamental liberty interests, “a statement of generalized reasons is enough. provided the district court’s explanation is sufficient to allow proper appellate review.” Id.

In the present case, the Court concluded that the district court failed to provide even a statement of generalized reasons. The entirety of the district court’s discussion was: “I think he needs to continue with mental health and that the information that needs to be furnished is as I discussed, the diagnosis, is he compliant, is he attending.”

Thus, the Court ruled that the evidence before the district court may support that court’s imposition of the Sexual Material Prohibition and the Mental Health Condition—but it was required to make those findings in the first instance.

Accordingly, the Court vacated the Sexual Materials Prohibition and the Mental Health Condition and remanded for further proceedings. See: United States v. Engelhart, 22 F.4th 1197 (10th Cir. 2022). 

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