United States of America v. Brian S. Browder

Defendant‐appellant Brian S. Browder—having been convicted

of possessing digital images and videos of child pornography, and

having served the incarcerary portion of his sentence—appeals from

an order finding him in violation of two conditions of his supervised

release. The District Court (Lawrence J. Vilardo, Judge) found that

Browder had violated two special conditions, one requiring that

Browder’s computer(s) be monitored by the United States Probation

Office, and the other requiring that Browder attend a mental health

treatment program for sex offenders. We conclude that Browder’s

challenge to the computer monitoring violation is unsuccessful,

because the condition, as construed for purposes of this appeal and

under our deferential review, is reasonable. But we conclude that

Browder’s challenge to the treatment violation has merit. Specifically,

it was reasonable for Browder to object to signing a treatment

agreement that conflicted with his actual sentence, and he does not

appear, based on the record, to have otherwise acted unreasonably

with respect to participating in such treatment. Accordingly, we

AFFIRM the order in part, with respect to the violation of the

computer monitoring condition; REVERSE the order in part, with

respect to the violation of the treatment condition; and REMAND the

 Judge Katherine B. Forrest, of the United States District Court for the

Southern District of New York, sitting by designation.

3

cause to the District Court for such further proceedings, consistent

with this opinion, as may be appropriate.

RANDALL D. UNGER, Bayside, NY, for

Defendant‐Appellant.

MONICA J. RICHARDS, Assistant United

States Attorney, for James P. Kennedy,

United States Attorney for the Western

District of New York, Buffalo, NY, for

Appellee.

JOSÉ A. CABRANES, Circuit Judge:

Defendant‐appellant Brian S. Browder—having been convicted

of possessing digital images and videos of child pornography, and

having served the incarcerary portion of his sentence—appeals from

an order finding him in violation of two conditions of his supervised

release. The District Court (Lawrence J. Vilardo, Judge) found that

Browder had violated two special conditions, one requiring that

Browder’s computer(s) be monitored by the United States Probation

Office, and the other requiring that Browder attend a mental health

treatment program for sex offenders.

Browder objected to the Probation Office’s implementation of

both conditions. With respect to the computer monitoring violation,

4

Browder believed, and contends on appeal, that the Probation

Office’s computer monitoring policy was overreaching. With respect

to the treatment violation, Browder refused to sign the relevant

treatment agreement because the treatment agreement purported to

bar Browder from contacting his own children unless approved by

the Probation Office and the treatment providers—a requirement that

conflicted with an express condition of supervised release ordered

earlier by the District Court.

We conclude that Browder’s challenge to the computer

monitoring violation is unsuccessful, because the condition, as

construed for purposes of this appeal and under our deferential

review, is reasonable. But we conclude that Browder’s challenge to

the treatment violation has merit. Specifically, it was reasonable for

Browder to object to signing a treatment agreement that conflicted

with his actual sentence, and he does not appear, based on the

record, to have otherwise acted unreasonably with respect to

participating in such treatment. Accordingly, we AFFIRM the order

in part, with respect to the violation of the computer monitoring

condition; REVERSE the order in part, with respect to the violation

of the treatment condition; and REMAND the cause to the District

Court for such further proceedings, consistent with this opinion, as

may be appropriate.

I. BACKGROUND

On October 20, 2010, Browder pleaded guilty, pursuant to an

agreement, to one count of possessing child pornography in violation

5

of 18 U.S.C. § 2252A(a)(5)(b). The factual basis of Browder’s plea

agreement provided as follows:

On or about October 14,[] 2009, in the Western

District of New York, the defendant possessed 462

images of child pornography in a Generic Computer

in a black Antec tower. The defendant received and

traded these images of child pornography over the

internet using the file sharing programs eMule and

eDonkey2000.

Some of the child pornography possessed by the

defendant depicted prepubescent children younger

than 12 years of age.1

The affidavit accompanying the criminal complaint against Browder

attested to, among other things, the following facts:

Forensic analysis also discovered that the defendant

had file wiping software and had used an encrypting

file system. Also, the user account for the defendant

was password protected. The password reminder for

the account is “unouwill” and the password is

“jerk4awhile,” which was recovered during forensic

analysis.2

1 Plea Agreement at 4, United States v. Browder, 1:10‐cr‐00263‐LJV

(W.D.N.Y. Oct. 20, 2010), ECF No. 14.

2 Complaint at 6, United States v. Browder, 1:10‐cr‐00263‐LJV (W.D.N.Y.

Mar. 22, 2010), ECF No. 1.

6

Judge Richard J. Arcara, to whom the case was originally

assigned, sentenced Browder to six‐and‐a‐half years’ imprisonment

followed by ten years’ supervised release. The terms of Browder’s

supervised release included certain special conditions, three of which

are relevant here. The first of these special conditions required

Browder to participate in the Probation Office’s Computer/Internet

Monitoring Program.3 The second relevant condition required

Browder to participate in a mental health program for sexual

offenders.4 And the third condition barred Browder from having

3 The condition provides in relevant part:

The defendant shall participate in the Computer/Internet

Monitoring Program administered by the U.S. Probation Office.

The defendant must provide the U.S. Probation Office advance

notification of any computer(s), automated service(s), or connected

device(s) that he will use during the term of supervision. Such

computer or computers will be subject to monitoring by the U.S.

Probation Office, consistent with the computer monitoring policy

then in effect by the probation office. In accordance with the

Second Circuit’s decision, United States v. Lifshitz, 269 F.3d 173 (2d

Cir. 2004), at footnote 11, and in light of the changing technology of

computer monitoring techniques, the Court finds it prudent to

delay the determination of the specific terms of the condition and

computer monitoring policy until the defendant’s supervised

release commences.

Judgment at 4, United States v. Browder, 1:10‐cr‐00263‐LJV (W.D.N.Y. May

31, 2011), ECF No. 43 (“2011 Judgment”).

4 The condition provides in relevant part:

The defendant is to enroll, attend, and participate in mental health

intervention specifically designed for the treatment of sexual

offenders as approved by the U.S. Probation Office. The defendant

7

deliberate contact with minors—excluding his children—unless

approved by the Probation Office.5

On December 24, 2015, Browder finished his term of

imprisonment and his term of supervised release began. In the time

leading up to and shortly after his release, Browder met with his

Probation Officer (“USPO”), Ann Marie Bucholtz, to review the

conditions of his supervised release.6 At the second meeting,

Browder indicated he wished to use a computer, and USPO Bucholtz

arranged for him to bring a laptop to her office so that monitoring

software could be installed on it.

On March 2, 2016, Browder appeared at USPO Bucholtz’s

office with a laptop and was presented with a “Computer Monitoring

Program Participant Agreement.”7 That agreement’s first paragraph

is to comply with the mandates of the treatment program and is

not to leave such treatment until discharge is agreed to by the U.S.

Probation Office and treating agency.

Id.

5 The condition provides in relevant part: “The defendant shall not have

deliberate contact with any child under 18 years of age, excluding his biological or

adopted children, unless approved by the probation officer.” Id.

Browder has two daughters.

6 At the revocation hearing, USPO Bucholtz testified that she supervises all

sex offenders.

7 See Appendix (“A.”) 122–23. Browder had previously signed this

agreement, but since he did not then have a computer, he and USPO Bucholtz

8

provides in relevant part that, “I understand that this agreement is,

by reference, part of the order setting conditions of supervision and

that failure to comply with its provisions or the instructions of my

officer will be considered a violation of my supervision and may

result in adverse action.”8 Paragraph six of that agreement provides

in relevant part:

I agree to allow the U.S. Probation Office to install

software/hardware designed to monitor computer

activities on any computer(s)/connected device(s) I own

or have access to. I understand that the monitoring

device may record any and all activity on my computer,

including the capture of keystrokes, application

information, internet use history, email correspondence,

and chat conversations.9

Evidently this monitoring would be performed by a third‐party

private company, Remote.com.10

circled only the three paragraphs that applied to him at that time—none of which

he objects to here.

8 A. 122 ¶ 1.

9 Id. ¶ 6.

10 At the violation hearing, USPO Bucholtz testified that Remote.com is

staffed by former law enforcement officials, and that they will alert the Probation

Office only if those monitored are “looking at any contraband.” Id. at 71. It is

unclear what constraints, if any at all, are imposed on Remote.com’s monitoring

of probationers.

9

Browder objected to this computer monitoring agreement as

overbroad and overreaching, expressing concerns in particular about

the monitoring of computer files related to his pro se motion under 28

U.S.C. § 2255, which Browder was working on at that time. He also

refused to allow USPO Bucholtz to keep the laptop or say what he

would do with it. The Probation Office then conducted a search of

Browder’s home; no computer was found, but flash drives and SD

(storage device) cards were. Browder refused to disclose the

whereabouts of the laptop.

During the same general time period, Browder appeared for at

least two sexual offender treatment appointments at Mid‐Erie

Counseling and Treatment Services. His treatment was terminated,

however, because he objected to the treatment agreement’s inclusion

of a term that conflicted with his special conditions.11 That term

provided that Browder would “lead a prosocial lifestyle and refrain

from any and all willful contact, visitation, letter writing and

telephone calls with anyone under the age of 17 years old”—without

exception—”unless approved by my parole or probation officer and

the treatment team before I have contact with them.”12 In a letter

dated March 16, 2016—and which was delivered to USPO Bucholtz

11 See id. at 52–53, 126; see also id. at 124 (March 16, 2016 letter from Browder

to USPO Bucholtz).

12 Id. at 133 (emphasis added).

10

no later than March 23, 2016—Browder documented his objection,

writing as follows, in part,13 to USPO Bucholtz:

As you are aware, I have objections to Mid‐Erie’s

“treatment agreement form” that compel me not to sign.

I want to be clear that I have not refused counseling;

they refused to modify or allow modification of an overreaching

agreement, so I could not sign, so they refused

me counseling. . . . [T]he Restriction grants you authority

to deny me any contact with my own children, even by

birthday card. The court did not convey that authority to

you . . . . I will not be compelled to grant that authority.

That was largely why I could not sign . . . .14

On March 25, 2016, the Probation Office filed a violation

petition alleging violations of the sex offender treatment and

computer monitoring conditions. By that time, the case had been

transferred from Judge Arcara to Judge Vilardo.15 On March 29, 2016,

Judge Vilardo granted the Government’s motion to detain Browder.

On April 4, 2016, a violation hearing was held, with testimony from

USPO Bucholtz. At the hearing’s conclusion, the District Court found

that the two violations were proven by a preponderance of the

13 We need not consider the alternative objections that Browder raised in

his letter. We simply note that a supervisee’s subjective belief in his own

innocence—despite having been convicted, upon a guilty plea or otherwise—is

not a valid reason for that supervisee to disregard the mandatory, court‐ordered

conditions of his supervised release.

14 A. 124.

15 The case was reassigned on December 4, 2015.

11

evidence. At sentencing, the District Court imposed a sentence of

“time served” and reinstated the same terms (duration and

conditions) of supervised release as were already in effect.

This appeal followed.

II. DISCUSSION

Among Browder’s arguments on appeal,16 the more substantial

relate to the legal validity of the two special conditions themselves—

or, perhaps more precisely, the validity of the Probation Office’s

16 To the extent Browder challenges the sufficiency of the evidence

supporting his violations, we easily conclude that such a challenge fails.

“A district court’s finding that a defendant has violated conditions of

supervised release is reviewed for abuse of discretion, and its factual findings are

reviewed for clear error.” United States v. Glenn, 744 F.3d 845, 847 (2d Cir. 2014)

(citations omitted). A district court may revoke a term of supervised release if it

“finds by a preponderance of the evidence that the defendant violated a condition

of supervised release.” 18 U.S.C. § 3583(e)(3). In challenging a violation on

sufficiency grounds, a supervisee “assumes a ‘heavy burden,’ because a district

court need only be ‘reasonably satisfied’ that a probationer has failed to comply

with the conditions of probation to revoke sentence.” United States v. Colasuonno,

697 F.3d 164, 181 (2d Cir. 2012) (quoting United States v. Lettieri, 910 F.2d 1067,

1068 (2d Cir. 1990)).

Here, the District Court did not err in finding that there was sufficient

evidence supporting a finding of a violation of the special conditions. A. 85–86.

Contrary to the requirements of his special conditions, Browder refused to

“participate in the Computer/Internet Monitoring Program,” and he also refused

to “comply with the mandates of the treatment program.” 2011 Judgment at 4.

Accordingly, Browder’s sufficiency challenge is without merit.

12

implementation of those conditions. We address his arguments with

respect to each condition in turn.

A. Violation of the Computer Monitoring Condition

To begin, we note that, as written, it is not clear what degree of

computer monitoring the District Court imposed in this special

condition. The condition, originally imposed by Judge Arcara in

2011, provides in relevant part:

The defendant shall participate in the Computer/Internet

Monitoring Program administered by the U.S. Probation

Office. The defendant must provide the U.S. Probation

Office advance notification of any computer(s),

automated service(s), or connected device(s) that he will

use during the term of supervision. Such computer or

computers will be subject to monitoring by the U.S.

Probation Office, consistent with the computer

monitoring policy then in effect by the probation office.

In accordance with the Second Circuit’s decision, United

States v. Lifshitz, 269 F.3d 173 (2d Cir. 2004), at footnote

11, and in light of the changing technology of computer

monitoring techniques, the Court finds it prudent to delay

the determination of the specific terms of the condition and

computer monitoring policy until the defendant’s supervised

release commences.17

Once Browder’s supervised release began in December 2015,

however, there was no “determination of the specific terms of the

17 2011 Judgment at 4 (emphasis added).

13

condition.” (Earlier that month, the case had been transferred from

Judge Arcara to Judge Vilardo.) Nevertheless, all the relevant parties

in this case appear to have been operating on the understanding—

reasonably, perhaps, given some of the language in the special

condition—that, upon his release, Browder was subject to whatever

computer monitoring policy the Probation Office of the Western

District of New York had in effect at that time. Indeed, in this appeal,

Browder seems to be challenging the policy of the Probation Office,

not the sentence of the District Court.

Browder’s principal contention on appeal is, “[i]n short,” that

“the computer monitoring system that the Probation Office sought to

implement involved a ‘greater deprivation of liberty than is

reasonably necessary for the purposes set forth in section[s]

3553(a)(2)(b), (a)(2)(C), and (a)(2)(D) [of Title 18 of the United States

Code].’”18 Browder’s principal argument—which seeks to apply the

requirements governing the imposition of sentence by the District

Court to the execution of that sentence by the Probation Office—is

thus fundamentally confused. “[T]he extensive ‘supervision mission’

of federal probation officers includes ‘execut[ing] the sentence,’ but

not imposing it.”19 And while the special condition that Judge

Vilardo originally imposed (unless and until updated and made

more specific) may be subject to challenge as an impermissible

18 Appellant’s Br. 13–14 (quoting 18 U.S.C. § 3583(d)(2)).

19 United States v. Matta, 777 F.3d 116, 122 (2d Cir. 2015) (quoting United

States v. Reyes, 283 F.3d 446, 456 (2d Cir. 2002)).

14

delegation of judicial authority to the Probation Office,20 Browder

does not bring any such challenge here. Any delegation argument

has therefore been waived in this appeal.

In light of the foregoing, we construe the computer monitoring

condition as Browder himself does—that is, as having sentenced him

to whatever computer monitoring policy was used by the Western

District’s Probation Office at his release—and consider whether that

sentence, as effectuated in the Probation Office policy, was

unreasonable or an “abuse of discretion.”21 We conclude it was not.

20 We have explained that “[t]he power to impose special conditions of

supervised release . . . is vested exclusively in the district court.” Matta, 777 F.3d at

122. While “a district court may delegate to a probation officer decisionmaking

authority over certain minor details of supervised release—for example, the

selection of a therapy provider or treatment schedule”—it “may not delegate to

the Probation Department decisionmaking authority which would make a

defendant’s liberty itself contingent on a probation officer’s exercise of

discretion.” Id.; see also U.S.S.G. § 5D1.3(b) (“The court may impose other

conditions of supervised release . . . .” (emphasis added)); cf. United States v.

Peterson, 248 F.3d 79, 85 (2d Cir. 2001) (holding that two special conditions—

delegating to the probation officer the decision whether to require sex offender

counseling and the decision whether to require third‐party notifications—were

impermissible delegations of judicial authority).

21 See Gall v. United States, 552 U.S. 38, 46 (2007); United States v. Rigas, 583

F.3d 108, 114 (2d Cir. 2009) (“[T]he role of the Court of Appeals is limited to

examining a sentence for reasonableness, which is akin to review under an ‘abuseof‐

discretion’ standard.”); United States v. Brown, 402 F.3d 133, 136 (2d Cir. 2005)

(“We review the propriety of a supervised release condition for abuse of

discretion.”). “[S]upervised release, [a] form of post‐imprisonment supervision . . .

is imposed by a federal district court as part of a total sentence in addition to a period

of incarceration at the time of the initial sentencing of a convicted federal criminal

15

Under 18 U.S.C. § 3583(d), the imposition of certain conditions

of supervised release is mandatory, but “[d]istrict courts also have

discretion to impose other, non‐mandatory conditions of supervised

release,”22 which are commonly referred to as “special conditions.”

Such discretion is not unbounded, however.23 The United States

Sentencing Guidelines provide that a district court

may impose other conditions of supervised release to the

extent that such conditions (1) are reasonably related to (A)

the nature and circumstances of the offense and the

history and characteristics of the defendant; (B) the need

for the sentence imposed to afford adequate deterrence

to criminal conduct; (C) the need to protect the public

from further crimes of the defendant; and (D) the need to

provide the defendant with needed educational or

vocational training, medical care, or other correctional

treatment in the most effective manner; and (2) involve

no greater deprivation of liberty than is reasonably

necessary for the purposes set forth above and are

consistent with any pertinent policy statements issued

by the Sentencing Commission.24

defendant.” United States v. Reyes, 283 F.3d 446, 456 (2d Cir. 2002) (emphasis in

original) (internal quotation marks omitted).

22 United States v. Reeves, 591 F.3d 77, 80 (2d Cir. 2010).

23 Id.

24 U.S.S.G. § 5D1.3(b) (emphases added). Substantially the same

requirements are set forth, by means of intricate cross‐referencing, in 18 U.S.C.

§ 3583(d). See United States v. Malenya, 736 F.3d 554, 559 (D.C. Cir. 2013).

16

With respect to the first, “reasonably related” requirement, “a

condition may be imposed if it is reasonably related to any one or

more of the specified factors.”25 The second, “reasonably necessary”

requirement has a constitutional gloss in the computer‐monitoring

context.26

In United States v. Lifshitz,27 we considered a probationer’s

Fourth Amendment challenge to a broadly worded computer

monitoring condition.28 We explained that the special needs of

25 United States v. Abrar, 58 F.3d 43, 46 (2d Cir. 1995); accord United States v.

McLaurin, 731 F.3d 258, 262 (2d Cir. 2013).

26 We focus here on the Fourth Amendment. In Packingham v. North

Carolina, 137 S. Ct. 1730 (2017), however, the Supreme Court struck down, as a

violation of the First Amendment, a North Carolina law that barred sex offenders

from having access to social media (and other) internet sites. We need not dwell

on the implications of Packingham here. For one thing, Packingham is not directly

on point. It involved an internet ban—not internet or computer monitoring—and

that ban extended beyond the completion of a sentence. See id. at 1737 (noting, but

seeming not to rely on, “the troubling fact that the law imposes severe restrictions

on persons who already have served their sentence and are no longer subject to

the supervision of the criminal justice system”); cf. United States v. Lifshitz, 369

F.3d 173, 181 n.4 (2d Cir. 2004) (“Supervised release, parole, and probation lie on a

continuum. The most severe is ‘supervised release,’ which is ‘meted out in

addition to, not in lieu of, incarceration.’” (quoting Reyes, 283 F.3d at 461)).

Additionally, and most significantly, Browder raises no First Amendment

challenge and thus waived the argument on appeal.

27 369 F.3d 173 (2d Cir. 2004).

28 The relevant sentence in Lifshitz’s condition provided: “The defendant

shall consent to the installation of systems that enable the probation officer or

designee to monitor and filter computer use, on a regular or random basis, on any

computer owned or controlled by the defendant.” Id. at 178 n.3.

17

supervision permit the monitoring of a supervisee’s computer use,

but that a “monitoring condition must be narrowly tailored, and not

sweep so broadly as to draw a wide swath of extraneous material

into its net.”29 When irrelevant data is “inadvertently gathered . . . ,

those monitoring compliance should remain conscientiously

unaware of that data.”30 In other words, while a computer

monitoring condition “must bear ‘a close and substantial relation’ to

the government’s interest in pursuing the search,” it need not employ

“‘the least intrusive means.’”31 We did not hold that the condition in

Lifshitz violated the Fourth Amendment, but we said the condition

“may . . . be overbroad” and remanded so the district court could

“evaluate the privacy implications of the proposed computer

monitoring techniques as well as their efficacy as compared with

computer filtering.”32 We also suggested that where there may be a

29 Id. at 190.

30 Id.

31 Id. at 192 (citation omitted) (quoting, respectively, Natʹl Treasury Emps.

Union v. Von Raab, 489 U.S. 656, 676 (1989) (drug tests of customs officials), and Bd.

of Educ. v. Earls, 536 U.S. 822, 837 (2002) (drug tests of schoolchildren)).

32 Id. at 193. In Lifshitz, we did not have occasion to again evaluate the

condition following our remand, but it appears that the following condition was

in effect as of 2011:

The defendant is not to use a computer, Internet‐capable device, or

similar electronic device to access child pornography or to

communicate with any individual or group for the purpose of

promoting sexual relations with children. The defendant shall

consent to the use and/or installation of a computer program which

shall monitor suspect computer use on computer[s] owned or

18

significant delay before the monitoring condition comes into effect—

for example, in the case of supervised release—“it might well be

prudent for the district court to postpone the determination of the

supervised release or probation conditions until an appropriate later

time, when the district court’s decision could be based on thenexisting

technological and other considerations.”33

controlled by the defendant. The program(s) used will be designed

to identify, for the probation office, only the viewing,

downloading, uploading, transmitting, or otherwise using any

images or content of a sexual nature, defined as Suspect Computer

Use. Suspect Computer Use shall be identified by the installed

program(s) and/or the probation officer through the screening of

the defendantʹs computer usage for certain key words, phrases and

images.

Judgment at 4, United States v. Lifshitz, 1:03‐cr‐00572‐LAP (S.D.N.Y. May 18, 2011),

ECF No. 32.

33 Lifshitz, 369 F.3d at 193 n.11. The history of this case indicates that our

well‐meaning suggestion may at times fare better in theory than in fact. At a

minimum, rather than delaying imposition of sentence, it may be more practical

for a district court to impose the full sentence (including, that is, the specific terms

of any computer monitoring or filtering condition) in the first instance. If less

invasive means of computer supervision arise, through technological or other

innovation, the defendant or the government is free to seek modification of the

condition. See 18 U.S.C. § 3583(e)(2) (providing a court “may modify, reduce, or

enlarge the conditions of supervised release, at any time prior to the expiration or

termination of the term of supervised release, pursuant to the provisions of the

Federal Rules of Criminal Procedure relating to the modification of probation and

the provisions applicable to the initial setting of the terms and conditions of postrelease

supervision”); Fed. R. Crim. P. 32.1(c) (concerning modification); see also,

e.g., United States v. Parisi, 821 F.3d 343, 347 (2d Cir. 2016) (applying 18 U.S.C.

§ 3583(e)(2)). It may be that the monitoring condition initially imposed proves to

be nothing but a temporary placeholder—but, as this case illustrates, it may not.

19

Viewing the computer monitoring to which Browder is subject

in light of the foregoing standards, we conclude it is reasonable.

Browder was convicted of possessing over 462 digital images of child

pornography that he received (and shared) on internet exchanges, so

computer monitoring is “reasonably related” to the nature and

circumstances of the offense and Browder’s history and

characteristics. The monitoring is also “reasonably necessary” for the

broad sentencing purposes indicated in U.S.S.G. § 5D1.3(b) and 18

U.S.C. § 3553(a)(2), including specific deterrence, public protection,

and rehabilitation. Notably, there was evidence that Browder had

employed computer software that could conceal or erase illicit

images. And importantly, USPO Bucholtz testified—and the District

Court found—that the third‐party monitoring organization,

Remote.com, notifies the Probation Office only if it detects

“contraband,” and would not convey any information related to

Browder’s § 2255 motion. So long as the principal concern is

monitoring by the Probation Office—which, in fact, is Browder’s

principal stated concern34—this third‐party monitoring arrangement

helps ensure that the monitoring remains, in the words of Lifshitz,

“narrowly tailored.”35 Put differently, the monitoring at issue in this

particular case is not an unreasonable or excessive deprivation of

liberty.

34 Although a defendant might hypothetically raise an objection to the use

of a third‐party monitoring service, Browder has not done so here.

35 369 F.3d at 190.

20

Accordingly, we conclude that subjecting Browder to the

computer monitoring conditions described above was not an abuse

of discretion. But to say that a sentence is within the range of

reasonable sentences is not, of course, to say that it is the only

reasonable sentence. As already explained, while Browder has

waived any delegation challenge in this appeal, it is not clear that the

District Court ever imposed on Browder the specific terms of

monitoring reflected in the Probation Office’s policy. Because we

remand as to Browder ʹs mental health treatment condition in any

event, we direct the District Court to review the computer

monitoring condition of supervised release and to re‐state the terms

of Browder’s computer monitoring condition with greater specificity.36

B. Violation of the Mental Health Treatment Condition

Our analysis with respect to the District Court’s finding that

Browder violated the mental health treatment condition is more

straightforward. The gravamen of Browder’s complaint is simply

36 For instance, the condition in Lifshitz, as revised following remand, itself

contained certain narrowing provisions (whereas, here, we have construed the

computer monitoring condition as it has been implemented, not as it is written).

See note 32, ante. We also note there may be conflicting opinions in the record

regarding the feasibility of Browder using a word processer that is not capable of

gaining access to the internet. Compare A. 72–73 (USPO Bucholtz disputing the

availability or feasibility of an internet‐disabled word processor), with id. at 110

(the District Court stating at sentencing on the alleged violations of supervised

release: “In fact, unlike those who have to undergo drug testing, you have a way

to avoid the possibility of intrusion altogether. You can draft your papers on a

device that’s not capable of accessing the internet.”).

21

that the proposed treatment agreement conflicted with his actual

sentence.37 In particular, the original sentence of the District Court

included a specific condition prohibiting contact with minors, but it

categorically excluded Browder’s children from that prohibition. By

contrast, the proposed treatment agreement’s provision regarding

contact with minors did not categorically exclude Browder’s children.

We agree with Browder that the treatment agreement would

have subjected him to a more punitive condition governing contact

with minors than did the condition to which Browder was actually

sentenced by the District Court.38 Browder was therefore well within

his rights to object to that term of the agreement. Nor do we find that

Browder otherwise acted unreasonably with respect to the treatment

special condition. Browder made what appears to be a good‐faith

effort to attend the treatment, appearing at (at least) two sessions. In

addition, Browder communicated his objection to the treatment

37 Browder likewise fails to raise a delegation challenge here. But whether

or not the treatment condition is susceptible to a delegation challenge, cf. Peterson,

248 F.3d at 85; United States v. Morin, 832 F.3d 513, 516–17 (5th Cir. 2016),

Browder’s primary point, in our view, is that the treatment cannot be

implemented in a way that directly conflicts with other, specific conditions of his

supervised release.

38 Notably, the treatment agreement even refers to its terms as

“conditions.” See A 132–33. Part of the agreement states: “I have read, understand

and acknowledge that I am required to follow all of the conditions listed below

regarding my treatment and behavior. These conditions have been explained to

me in an understandable manner and I have been allowed to ask questions to

clarify any parts of this agreement.” Id. at 132. It then proceeds to enumerate

fifteen “General Conditions.” Id. at 132–33.

22

agreement in a written letter to USPO Bucholtz, and his objection was

also documented in the treatment facility’s records. Nevertheless,

USPO Bucholtz was unable to testify that she had read any of those

documents prior to seeking a violation of this condition. Finally, any

delay in Browder’s receiving the mental health treatment due to his

objection—unlike, arguably, the risks posed by a sex offender’s

possession of an unmonitored computer—did not pose the sort of

risk that might warrant arrest and imprisonment.

Accordingly, we conclude that the District Court’s finding that

Browder violated this condition of his release by objecting,

reasonably, to the treatment agreement, on the ground that it

conflicted with his actual sentence, was an “abuse of discretion”39—

that is, an error.

We recognize, of course, that both the no‐minors‐contact

special condition (imposed by the District Court as part of its

sentence) and the no‐minors‐contact term (included in the treatment

agreement of Mid‐Erie, the Probation Office’s chosen treatment

provider) allowed for contacts with minors if approved by the

Probation Office. The District Court appears to have placed

significant weight on USPO Bucholtz’s testimony that, if Browder

had sought permission to contact his daughters, the Probation Office

39 See Glenn, 744 F.3d at 847.

23

would have approved it; indeed, the District Court noted that, given

Browder’s sentence, the Office had no choice but to do so.40

Even if that were the case, however, approvals from the

Probation Office are insufficient to remedy the issue raised by

Browder. First, the treatment agreement actually required the

approval not only of the Probation Office, but also of “the treatment

team”41—something the District Court did not address and over

which it had no direct oversight. Second, and more fundamentally,

the District Court misapprehended the relationship between a

defendant’s sentence (by a judge) and its execution (by a probation

officer). The key question is not whether permission, if sought, would

be granted; it is whether Browder can be required, by the Probation

Office or its designee, to ask in the first place. Because such a

requirement as to Browder’s children would contradict, rather than

execute, Browder’s sentence, the Probation Office was plainly

without power to impose it, as Browder correctly argued.

40 See A. 110–11 (the District Court stating at sentencing on the alleged

violations of supervised release: “You must have known that you would have

been given permission if you would have asked. In fact, the Court required that

you be given permission. Judge Arcara required that. And Ms. Bucholtz testified

that all it would have taken for you to have been given permission was a phone

call and you would have gotten explicit permission.”). Of course, the District

Court did not address the fact that Browder had written and delivered a letter to

USPO Bucholtz, as well as the fact that USPO Bucholtz could not say whether she

sought to charge Browder with a violation before actually learning the grounds of

his objection to the treatment agreement.

41 Id. at 133.

To summarize, we hold as follows.

(1) Browder’s challenge to that part of the District Court’s

order finding that he had violated his computer monitoring

condition is unsuccessful because the condition, as

construed for purposes of this appeal and under our

deferential review, is reasonable. Nevertheless, we direct

the District Court to review this condition of supervised

release and to re‐state the terms of Browder’s computer

monitoring condition with greater specificity.

(2) Browder’s challenge to that part of the District Court’s

order finding that he had violated his treatment condition is

successful, because it was reasonable for Browder to object

to signing a treatment agreement that conflicted with his

actual sentence, and he does not appear to have otherwise

acted unreasonably with respect to participating in such

treatment.

For the foregoing reasons, we AFFIRM the District Court’s

order in part, with respect to the violation of the computer

monitoring condition; REVERSE the order in part, with respect to the

violation of the treatment condition; and REMAND the cause to the

District Court for such further proceedings, consistent with this

opinion, as may be appropriate.