United States of America v. Paul Glen Hohag

Defendant Paul Glen Hohag pleaded guilty to failure to

register as a sex offender, in violation of the Sex Offender

Registration and Notification Act (“SORNA”), 18 U.S.C.

§ 2250(a). The district court imposed a prison sentence of

time served. The court also ordered, as conditions of

supervised release, that Defendant participate in a sex

offense-specific assessment and that, if recommended by a

probation officer, Defendant submit to polygraph testing in

conjunction with that assessment. We affirm.

FACTUAL AND PROCEDURAL HISTORY

In 1992, Defendant was convicted of raping his stepsister,

who was 8 years old at the time of the offense. During the

proceedings, Defendant admitted to having molested another

young girl and claimed to have attended counseling after that

incident. Ultimately, the court hearing Defendant’s 1992 case

sentenced him to a period of imprisonment followed by a

period of community supervision. The court required, as a

condition of community supervision, that Defendant register

as a sex offender.

In 2011, Defendant registered as a sex offender in

Washington. He later moved to California, though, and failed

to register there or update his Washington registration.

Officers thus issued a warrant for his arrest. In the meantime,

Defendant moved again, this time to Oregon. He failed to

register there, too, and again neglected to update his

Washington registration. Officers eventually arrested

UNITED 4 STATES V. HOHAG

Defendant in Oregon in 2016, and the government charged

him with failure to register as a sex offender.

Defendant pleaded guilty. At sentencing, Defendant

informed the court that he had undergone sex offender

treatment while incarcerated for his 1992 rape offense. He

also provided the court with the results of a polygraph

examination, which stated that he was truthful in denying that

he had sexual contact with a minor since his release from

supervision in 2002.

The district court imposed a prison sentence of time

served. The court also ordered, as conditions of supervised

release, that Defendant “participate in a sex offense-specific

assessment” and that he “submit to polygraph testing at the

discretion of [his] probation officer, in conjunction with the

sex offender specific assessment.” In explaining its decision

to impose those conditions, the court explicitly acknowledged

that almost 27 years had passed since Defendant’s rape

conviction. The district court nevertheless viewed

Defendant’s failure to register as “a very serious offense”

suggesting that Defendant might pose a present risk to the

public. The court therefore imposed the assessment

conditions “to ensure that there [was] no risk to the

community that might somehow have been indicated by the

failure to register.”

Defendant timely appeals, challenging only the two

conditions of supervised release that relate to his history of

sexual misconduct.

UNITED STATES V. HOHAG 5

STANDARD OF REVIEW

We review for abuse of discretion a district court’s

decision to impose a condition of supervised release. United

States v. Johnson, 697 F.3d 1249, 1251 (9th Cir. 2012).

DISCUSSION

District courts have “wide discretion to impose conditions

of supervised release.” United States v. T.M., 330 F.3d 1235,

1239–40 (9th Cir. 2003). As a general rule, a district court

may impose a condition of supervised release if it “‘involves

no greater deprivation of liberty than is reasonably necessary’

to punish, deter, protect the public from or rehabilitate the

defendant.” Johnson, 697 F.3d at 1251 (quoting 18 U.S.C.

§ 3583(d)(2)). The condition also should relate to the nature

and circumstances of the defendant’s offense and to the

defendant’s history and personal characteristics. Id.

Importantly, those factors serve as a “guide,” not “a checklist

of requisites.” Id. (quoting United States v. Johnson,

998 F.2d 696, 698 (9th Cir. 1993)).

Two of our cases—T.M. and Johnson—bear heavily on

our analysis of the conditions at issue here. In both cases, a

district court relied on a defendant’s long-past sex offense to

impose one or more conditions on the defendant’s supervised

release. Yet we vacated the conditions at issue in T.M. and

approved of the one at issue in Johnson.

Explaining why we reached different results in those two

cases requires an understanding of their facts. We begin with

T.M. In 1961, the government charged T.M. with molesting

a teenage girl. 330 F.3d at 1237. And, in 1981, T.M.

kidnapped an 8-year-old girl, took pictures of her nude, and

UNITED 6 STATES V. HOHAG

allegedly penetrated her with two fingers. Id. Years later, in

1996, T.M. pleaded guilty to a drug crime, for which the

district court sentenced him to a period of probation subject

to, among other terms, the condition that he undergo

psychological treatment relating to his sexual misconduct. Id.

at 1237–38.

T.M. violated the terms of his probation repeatedly. Id.

at 1238. Importantly, though, none of his violations related

to his history of sexual misconduct or to his psychological

treatment. Id. Eventually, in 2001, the district court revoked

T.M.’s probation, sentenced T.M. to a period of

imprisonment, and imposed a number of conditions on his

supervised release—nine of which related to his history of

sexual misconduct. Id. at 1238–39. The conditions required,

among other things, that T.M. undergo polygraph testing,

participate in treatment, not possess any type of camera or

recording device, and not possess or use computers with

certain capabilities. Id. On appeal, we held that T.M.’s sex

offenses—the most recent of which had occurred

approximately 20 years before the district court imposed the

conditions at issue—were too remote in time to support those

conditions. Id. at 1240–41.

In Johnson, the defendant pleaded guilty to possessing a

firearm despite his status as a felon. 697 F.3d at 1250.

Almost 20 years earlier, a jury had convicted Johnson of

raping a 14-year-old girl at gunpoint. Id. And 30 years

earlier, a jury had convicted him of raping a 19-year-old girl.

Id. Relying on those offenses, the district court sentenced

Johnson to five years of supervised release subject to the

condition that Johnson undergo a sex offender assessment.

Id. We affirmed on appeal, despite the fact that Johnson’s

UNITED STATES V. HOHAG 7

sexual offenses were about as dated as those involved in T.M.

Id. at 1251.

Several distinctions explain those seemingly conflicting

conclusions. For one, there were nine conditions at issue in

T.M., in contrast to the single condition at issue in Johnson.

And many of the conditions in T.M. were substantively far

more stringent than the condition at issue in Johnson. As we

explained in Johnson, sex offender treatment imposes a “very

significant restraint[] on liberty,” whereas a mere assessment

constitutes “a much less significant restraint.” Id. Further, in

Johnson, the record did not reveal whether Johnson had

undergone sex offender treatment, whereas in T.M. the record

“included detailed information regarding [T.M.’s] progress in

his sexual offense treatment.” Id. Accordingly, there was a

greater need for further information in Johnson’s case.

Finally, Johnson’s conviction for possession of a firearm

related to his prior sex offenses: Johnson had used a gun in

raping one of his victims. Id. No similar link existed in T.M.,

in which T.M.’s probation violations had “no significant

relation to [his] sex offender status.” 330 F.3d at 1240–41.

Together, T.M. and Johnson illustrate that, when we

consider a condition of supervised release meant to address

a defendant’s history of sexual misconduct, we look to at

least two factors. First, as in every case, we consider the

burdensomeness of the condition at issue. An assessment is

significantly less burdensome than required treatment.

Second, we ask whether the condition is reasonably

necessary to accomplish one of the legitimate goals of

supervised release. In answering that question in this context,

we approach with some skepticism a condition that rests

solely on an old sex offense. But when some recent event

UNITED 8 STATES V. HOHAG

suggests that a defendant still poses a risk of engaging in

sexual misconduct, there exists a greater need for a condition

meant to address a defendant’s history of sexual misconduct.

As we explained in T.M., such “recent relevant events may

revive old offenses and justify the imposition of supervised

release conditions related to sex offender status.” 330 F.3d at

1240–41. Johnson illustrates that principle. Because Johnson

had used a firearm in raping one of his victims, his conviction

for possession of a firearm suggested that he might pose a

risk of re-offending. Johnson, 697 F.3d at 1251. Johnson

teaches, though, that a condition need not necessarily relate

directly to the offense of conviction to withstand review. We

also note that, if the district court already has at its disposal

a detailed record of the defendant’s history of sex offender

treatment, the need to order an assessment is diminished.

Whether a condition withstands review remains a caseby-

case inquiry. Thus, additional factors might bear on our

analysis. But Johnson’s and T.M.’s principles provide a

starting point and, having described them, we turn to the case

at hand.

Beginning with the nature of the restraints at issue,

Defendant faces a relatively minimal burden on his liberty.

For now, he must undergo only an assessment, which may or

may not lead to further treatment. Such limited initial

assessments, although not entirely unintrusive, impose a

fairly mild restraint on liberty. In fact, such assessments

permit district courts to make more informed decisions and,

in that way, can actually protect a defendant’s liberty

interests. See United States v. Bainbridge, 746 F.3d 943, 953

(9th Cir. 2014) (explaining that sex offender assessments

safeguard defendants’ liberty interests by allowing courts to

UNITED STATES V. HOHAG 9

be “sure that further conditions [are] necessary before

ordering them”).

Further, the possibility that Defendant’s assessment may

include polygraph testing does not make the assessment

overly burdensome. We have previously characterized

polygraph testing as a relatively unintrusive means of

evaluating a defendant’s risk of engaging in sexual

misconduct. United States v. Weber, 451 F.3d 552, 568 (9th

Cir. 2006). Further, Defendant is required to undergo

polygraph testing only insofar as it assists in his assessment.

On the whole, then, the conditions here are much like the

one at issue in Johnson. Defendant, for now, “must undergo

only an assessment.” Johnson, 697 F.3d at 1251. Unlike in

Johnson, though, Defendant had a history of treatment when

the district court sentenced him. The district court thus had

some insight into whether Defendant posed a risk of reoffending.

Even so, the district court lacked the kind of

“detailed information” that the district court in T.M. had. Id.

There, the district court had access to treatment reports as

recent as 2001—only a year before the district court imposed

the conditions at issue. T.M., 330 F.3d at 1241 n.5. Here,

Defendant completed treatment sometime before 2002, so the

district court lacked recent information regarding his risk of

re-offending. Thus, Defendant’s history of treatment

mitigates—but does not altogether obviate—the need for an

assessment.1

1 Defendant also provided the district court with the results of a

polygraph examination, which noted that he had been truthful in denying

having had sexual contact with a minor since his release from supervision

in 2002. But the district court was free to disregard such evidence at

sentencing. United States v. Givens, 767 F.2d 574, 585 (9th Cir. 1985).

UNITED 10 STATES V. HOHAG

More importantly, Defendant was convicted of a crime

that relates to his history of sexual misconduct. As the

district court explained, Defendant’s failure to register as a

sex offender suggested that he might have an ongoing desire

to engage in further sex offenses. The district court thus

imposed the condition at issue not in response to Defendant’s

27-year-old conviction for rape but, rather, as a means of

addressing Defendant’s recent conviction for failure to

register as a sex offender.

Of course, the crimes relate to one another. Defendant

would not have been required to register as a sex offender had

he never been convicted of a sex offense in the first place.

But Congress, in enacting SORNA, clearly viewed a sex

offender’s failure to register as posing a risk to the public.

See 34 U.S.C. § 20901 (establishing the sex offender

registration system “to protect the public from sex offenders

and offenders against children”). That is, SORNA exists, in

part, to address the concern that, when a sex offender fails to

register or to update his or her registry, the offender may have

done so as part of an effort, conscious or not, to re-offend.

That was the possibility that the district court sought to

address when it required that Defendant undergo a sex

offense-specific assessment. In that way, the conditions at

issue do not rest solely on Defendant’s dated conviction for

rape. In fact, they relate primarily to the risks indicated by

his recent failure to register.

Further, the polygraph test on which Defendant relied appears to have

been limited to the single question whether Defendant had engaged in bare

genital sexual contact with a minor since his release. Such a limited

inquiry does little to remove the need for a more comprehensive

understanding of Defendant’s risk of re-offending, as the district court

reasoned.

UNITED STATES V. HOHAG 11

Defendant argues, for two reasons, that the district court’s

decision to impose the conditions runs counter to the policy

statements of the United States Sentencing Commission.

First, Defendant argues that the conditions are unreasonable

because the Federal Sentencing Guidelines do not

recommend an assessment or treatment for all defendants

convicted of failure to register. That argument fails, though,

because the Guidelines’ recommended conditions are only

advisory. United States v. Williams, 356 F.3d 1045, 1052

(9th Cir. 2004). District courts retain wide latitude to craft

conditions of supervised release. Id. Second, Defendant

argues that we can infer that the Sentencing Commission did

not intend for SORNA violators to undergo assessments or

treatment because the Commission did not categorize

SORNA violations as “sex offenses”—offenses for which the

Commission expressly recommends treatment as a condition

of supervised release, U.S.S.G. § 5D1.3(d)(7). We decline to

draw that conclusion here because nothing in the Guidelines

suggests that an assessment or treatment is appropriate only

when a defendant engages in physical sexual misconduct.

Further, as we explained in Bainbridge, such “negative

implication” arguments are “particularly inapplicable” in this

context because district courts have broad discretion with

respect to crafting conditions of supervised release. 746 F.3d

at 948.

Because the conditions at issue are not particularly

burdensome and because they relate to Defendant’s crime of

conviction, we conclude that the district court did not abuse

its discretion.

AFFIRMED.