A condition of supervised release must be reasonably related to one of the statutory factors and cannot impose a greater deprivation of liberty than is reasonably necessary.
A defendant convicted of federal fraud appeals the revocation of his probation, challenging special conditions of supervised release requiring psychosexual evaluation and prohibiting possession of sexually explicit materials. He argues these conditions are unrelated to his fraud conviction and constitute an excessive deprivation of liberty. The court applies plain error review because the defendant did not object below. The court holds that a district court may consider a defendant’s prior sex offenses and reliable evidence of charged criminal conduct when imposing special conditions, even if the current conviction is for a non-sexual offense. The conditions must be reasonably related to statutory factors and not impose a greater deprivation of liberty than reasonably necessary. The court finds no plain error in the district court’s reliance on the defendant’s history and the reliability of the arrest warrant.
At page 153 Imposing sex-offender special conditions on non-sexual offenses48 citing cases“the condition cannot impose any 'greater deprivation of liberty than is reasonably necessary' to advance deterrence, protect the public from the defendant, and advance the defendant's correctional needs.”
- United States v. Mendoza, 170 F.4th 921 (5th Cir. 2026).publishedUnited States v. Weatherton, 567 F.3d 149, 153 (5th Cir. 2009).
- United States v. Arredondo, No. 24-10886 (5th Cir. Oct. 14, 2025).unpublishedUnited States v. Weatherton, 567 F.3d 149, 153 (5th Cir. 2009) (citing 18 U.S.C. §§ 3583 (d)(1), 3553(a)(1), (2)(B)–(D)).
- United States v. Jones, No. 22-30633 (5th Cir. Oct. 14, 2024).unpublishedUnited States v. Weatherton, 567 F.3d 149, 153 (5th Cir. 2009).
- United States v. Becerra, No. 19-50447 (5th Cir. Feb. 2, 2021).unpublishedWe start by addressing whether the district court “committed [a] 1 The four factors are: (1) “the nature and characteristics of the offense and the history and characteristics of the defendant,” (2) “the deterrence of criminal conduct,” (3…
- United States v. Carlos Becerra, 977 F.3d 373 (5th Cir. 2020).published The Government responds 1 The four factors are: (1) “the nature and characteristics of the offense and the history and characteristics of the defendant,” (2) “the deterrence of criminal conduct,” (3) “the protection of the public from furt…
- United States v. Ricardo Lopez, No. 18-50465 (5th Cir. June 29, 2020).unpublishedIn crafting an order of supervised release, a district court may impose conditions only if they are “reasonably related” to: (1) the nature and characteristics of the offense and the history and characteristics of the defendant, (2) the de…
- United States v. Arnoldo Belmontes, Jr., 807 F. App'x 292 (5th Cir. 2020).unpublishedUnited States v. Weatherton, 567 F.3d 149, 153 (5th Cir. 2009) (quoting § 3583(d)(1)).
- United States v. Anthony Foley, 946 F.3d 681 (5th Cir. 2020).publishedSee, e.g., United States v. Ogle, 415 F.3d 382, 383 (5th Cir. 2005) (holding an argument not raised in appellant’s brief is waived). 9 Warren, 720 F.3d at 332 (internal quotation omitted). 10 United States v. Rivera, 784 F.3d 1012, 1017 (5…
- United States v. Paul Montanez, 797 F. App'x 145 (5th Cir. 2019).unpublishedUnited States v. Weatherton, 567 F.3d 149, 153 (5th Cir. 2009) (citing 18 U.S.C. §§ 3583 (d)(1), 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D)).
- United States v. Jaydan Dean, 940 F.3d 888 (5th Cir. 2019).publishedThe court may impose any condition it deems appropriate, provided the condition is reasonably related to at least one of four factors: “(1) the nature and characteristics of the offense and the history and characteristics of the defendant,…
Show 32 more citing cases
- United States v. Steven Kielbasinski, No. 18-10175 (5th Cir. Aug. 13, 2019).unpublished“A district court’s discretion in imposing conditions of supervised release, though extensive, is subject to statutory requirements.” 2 Such conditions must be “reasonably related” to one of four factors set out in 18 U.S.C. 3553(a). 3 Tho…
- United States v. Samier Clark, No. 18-20244 (5th Cir. Aug. 7, 2019).unpublishedUnited States v. Weatherton, 567 F.3d 149, 153 (5th Cir. 2009) (citing 18 U.S.C. §§ 3583 (d)(1), 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D)).
- United States v. Hober Acosta-Navarro, No. 18-60564, 2019 WL 3058607 (5th Cir. July 11, 2019).unpublishedAlthough special conditions “must be consistent with the policy statements issued by the Sentencing Commission,” United States v. Weatherton, 567 F.3d 149, 153 (5th Cir. 2009) (citing 18 U.S.C. § 3583 (d)(3)), we have also recognized that…
- United States v. Johnny Mason, Jr., No. 18-30128 (5th Cir. Oct. 17, 2018).unpublishedTherefore, a prior conviction may be considered, United States v. Weatherton, 567 F.3d 149, 153 (5th Cir. 2009) (citations omitted); and we may uphold sex-related conditions based on a remote and single sex offense if there is a connection…
- United States v. Maria Alvarez, 880 F.3d 236 (5th Cir. 2018).publishedUnited States v. Weatherton, 567 F.3d 149, 153 (5th Cir. 2009) (citing 18 U.S.C. §§ 3583 (d)(1), 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D)).
- United States v. Laura Ramos-Gonzales, 857 F.3d 727 (5th Cir. 2017).published In particular, the special conditions must be “reasonably related” to one of four factors: (1) “the nature and circumstances of the offense and the history and characteristics of the defendant”; (2) “the need ... to afford adequate deterre…
- United States v. Richard Moore, 687 F. App'x 369 (5th Cir. 2017).unpublishedMoore asserts that the special conditions are not reasonably related to the statutory sentencing factors listed in United States v. Weatherton, 567 F.3d 149, 153 (5th Cir. 2009), and he contends that the district court’s factual findings i…
- United States v. Curtis Billups, 850 F.3d 762 (5th Cir. 2017).publishedUnited States v. Weatherton, 567 F.3d 149, 153 (5th Cir. 2009). 16 .
- United States v. Tyrone Bradshaw, 653 F. App'x 325 (5th Cir. 2016).unpublishedUnited States v. Weatherton, 567 F.3d 149, 153 (5th Cir. 2009) (citing 18 U.S.C. §§ 3583 (d)(1), 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D)). 5 .
- United States v. Hosea Cheeks, 647 F. App'x 310 (5th Cir. 2016).unpublishedHe asserts that because his underlying SORNA offense is not a sex offense, the special conditions of supervised release pertaining to sex offenses in the Guidelines should not have been imposed. *313 Cheeks’s claim is unavailing. “[A] cour…
- United States v. Joann Silvas, 637 F. App'x 175 (5th Cir. 2016).unpublishedUnited States v. Weatherton, 567 F.3d 149, 153 (5th Cir.2009).
- United States v. Ruben Garcia, 638 F. App'x 343 (5th Cir. 2016).unpublishedUnited States v. Weatherton, 567 F.3d 149, 153 (5th Cir.2009) (citing 18 U.S.C. §§ 3583 (d)(1), 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D)). 7 .
- United States v. Daniel Thody, 637 F. App'x 790 (5th Cir. 2016).unpublishedUnited States v. Weatherton, 567 F.3d 149, 153 (5th Cir.2009) (citing 18 U.S.C, § 3583(d)); United States v. Paul, 274 F.3d 155, 164 (5th Cir.2001). 9 .
- United States v. James Caravayo, 809 F.3d 269 (5th Cir. 2016).published United States v. Weatherton, 567 F.3d 149, 153 (5th Cir. 2009) (citing § 3553(a)(1), (a)(2)(B)–(D)).
- United States v. Emil Rath, 614 F. App'x 188 (5th Cir. 2015).unpublishedTang, 718 F.3d at 482 (citing United States v. Weatherton, 567 F.3d 149, 153 (5th Cir.2009)). 20 .
- United States v. Michael Fields, 777 F.3d 799 (5th Cir. 2015).published United States v. Weatherton, 567 F.3d 149, 152 (5th Cir.2009). 7 .
- United States v. Renounte Jackson, 594 F. App'x 232 (5th Cir. 2014).unpublishedUnited States v. Weatherton, 567 F.3d 149, 153 (5th Cir.2009) (citations and internal quotation marks omitted). 27 . 274 F.3d 155, 166 (5th Cir.2001). 28 .
- United States v. Elias Vega, Jr., No. 13-40681 (5th Cir. Sept. 15, 2014).unpublishedSee United States v. Rodriguez, 558 F.3d 408 , 412 & n.3 (5th Cir. 2009); United States v. Weatherton, 567 F.3d 149, 153 (5th Cir. 2009).
- United States v. Undra Johnson, 577 F. App'x 241 (5th Cir. 2014).unpublished There was no procedural error, though, because a court may “impose[ ] sex-offender-related special conditions when the underlying conviction is for a non-sexual offense.” United States v. Weatherton, 567 F.3d 149, 153 (5th Cir.2009) (quota…
- United States v. Marbis Diaz-Espinoza, 572 F. App'x 264 (5th Cir. 2014).unpublishedUnited States v. Weatherton, 567 F.3d 149, 153 (5th Cir.2009); 18 U.S.C. §§ 3553 (a)(1), (2)(B)-(D), 3583(d).
- United States v. Calvin Windless, 719 F.3d 415 (5th Cir. 2013).published
- United States v. Miller, 665 F.3d 114 (5th Cir. 2011).published
- United States v. David Tang, No. 12-20043, 2013 WL 2099065 (5th Cir. June 21, 2013).published
- United States v. Todd Ellis, No. 12-10162, 2013 WL 3156007 (5th Cir. July 2, 2013).published
- United States v. Darryl Byrd, 551 F. App'x 726 (5th Cir. 2013).unpublished
- United States v. Francisco Gonzalez-Cortez, 552 F. App'x 360 (5th Cir. 2014).unpublished
- United States v. Sammy Salazar, 743 F.3d 445 (5th Cir. 2014).published
- United States v. Kirk Pennington, 606 F. App'x 216 (5th Cir. 2015).unpublished
- United States v. Panchita Hernandez-Ybarra, 654 F. App'x 662 (5th Cir. 2016).unpublished
- United States v. William Payton, 959 F.3d 654 (5th Cir. 2020).published
- United States v. Randolph, No. 21-50809 (5th Cir. June 16, 2022).unpublished
- United States v. Donald Hathorn, 920 F.3d 982 (5th Cir. 2019).published
At page 152 Reviewing conditions of supervised release for plain error34 citing cases[B]ecause [the defendant] did not object to the imposition of the special conditions in the district court, we review for plain error only.
- United States v. Rolando Hinojosa, 956 F.3d 331 (5th Cir. 2020).published([B]ecause [the defendant] did not object to the imposition of the special conditions in the district court, we review for plain error only.)
- United States v. Tampico, No. 24-20462 (5th Cir. Sept. 1, 2026).published“Unpreserved challenges to special conditions are reviewed for plain error.” Caillier, 80 F.4th at 569 (citing United States v. Weatherton, 567 F.3d 149, 152 (5th Cir. 2009)).
- United States v. Nunes, No. 25-11180 (5th Cir. May 13, 2026).unpublishedSee 18 U.S.C. § 3583 (d)(2); United States v. Weatherton, 567 F.3d 149, 152-53 (5th Cir. 2009).
- United States v. Caillier, 80 F.4th 564 (5th Cir. 2023).publishedUnited States v. Weatherton, 567 F.3d 149, 152 (5th Cir. 2009).
- United States v. Christopher Abbate, 970 F.3d 601 (5th Cir. 2020).publishedAlthough Miller was a plain error case, the court held it would have reached the same conclusion “[e]ven were [it] to review for an abuse of discretion.” Id. 28 United States v. Sealed Juvenile, 781 F.3d 747, 756 (5th Cir. 2015). 29 United…
- Sealed v. Sealed, No. 18-50115 (5th Cir. Sept. 11, 2019).publishedUnited States v. Weatherton, 567 F.3d 149, 152 (5th Cir. 2009).
- United States v. Michael Iverson, 874 F.3d 855 (5th Cir. 2017).published(upholding special conditions requiring the defendant to undergo “psychosexual evaluation” and refrain from possessing sexually explicit material)
- United States v. Rolando Mendoza-Velasquez, 847 F.3d 209 (5th Cir. 2017).publishedUnited States v. Weatherton, 567 F.3d 149, 152 (5th Cir. 2009).
- United States v. Mayra Alaniz, 671 F. App'x 292 (5th Cir. 2016).unpublishedSee, e.g., United States v. Bishop, 603 F.3d 279, 280 (5th Cir. 2010); United States v. Weatherton, 567 F.3d 149, 152 (5th Cir. 2009).
- United States v. Ephesian Franklin, 838 F.3d 564 (5th Cir. 2016).publishedSee, e.g., United States v. Bishop, 603 F.3d 279, 280 (5th Cir. 2010); United *567 States v. Weatherton, 567 F.3d 149, 152 (5th Cir. 2009), Nonetheless, when a defendant appeals a supervised release condition alleging ambiguity between the…
Show 23 more citing cases
- United States v. Jason Scott, 821 F.3d 562 (5th Cir. 2016).publishedUnited States v. Weatherton, 567 F.3d 149, 152 (5th Cir.2009).
- United States v. Ousainou Mahanera, 611 F. App'x 201 (5th Cir. 2015).unpublished United States v. Weatherton, 567 F.3d 149, 152 (5th Cir. 2009).
- United States v. Michael Fields, 777 F.3d 799 (5th Cir. 2015).published United States v. Weatherton, 567 F.3d 149, 152 (5th Cir.2009). 7 .
- United States v. Nobryan McGee, 559 F. App'x 323 (5th Cir. 2014).unpublished United States v. Weatherton, 567 F.3d 149, 152 (5th Cir.2009). 29 .
- United States v. Fortenberry, 350 F. App'x 906 (5th Cir. 2009).unpublished
- United States v. James Gayford, 380 F. App'x 442 (5th Cir. 2010).unpublished
- United States v. Maryann Martinez-Saldivar, 397 F. App'x 62 (5th Cir. 2010).unpublished
- United States v. Domingo Torres-Pindan, 400 F. App'x 839 (5th Cir. 2010).unpublished
- United States v. Calvin Windless, 719 F.3d 415 (5th Cir. 2013).published
- United States v. Frank Kroft, 535 F. App'x 422 (5th Cir. 2013).unpublished
- United States v. James Markwith, 542 F. App'x 400 (5th Cir. 2013).unpublished
- United States v. Tony Nelson, 544 F. App'x 503 (5th Cir. 2013).unpublished
- United States v. Richard Horton, 548 F. App'x 219 (5th Cir. 2013).unpublished
- United States v. Richard Horton, No. 12-10697 (5th Cir. Jan. 20, 2014).unpublished
- United States v. James Cuneo, 554 F. App'x 313 (5th Cir. 2014).unpublished
- United States v. Hugo Arciniega-Rodriguez, 581 F. App'x 419 (5th Cir. 2014).unpublished
- United States v. Terry Nelson, 594 F. App'x 246 (5th Cir. 2015).unpublished
- United States v. Anthony Navarro Spencer, 609 F. App'x 781 (5th Cir. 2015).unpublished
- United States v. Edmundo Guerrero-Gonzalez, 614 F. App'x 779 (5th Cir. 2015).unpublished
- United States v. Eduardo Benavides, 669 F. App'x 770 (5th Cir. 2016).unpublished
- United States v. Michael Cox, Jr., 672 F. App'x 517 (5th Cir. 2017).unpublished
- United States v. David Heredia-Holguin, 679 F. App'x 306 (5th Cir. 2017).unpublished
- United States v. Alfredo Escobedo, Jr., 701 F. App'x 327 (5th Cir. 2017).unpublished
At page 155 Determining plain error in sex offender conditions3 citing casesrejecting on plain error review defendant’s claim that sex offender conditions imposed a greater deprivation of liberty than necessary, to achieve deterrence and protect the public
- United States v. Javier Lozano, No. 16-41516 (5th Cir. Dec. 19, 2018).unpublishedSee United States v. Ybarra, 289 F. App’x 726, 734 (5th Cir. 2008) (noting that it is unclear “even whether there is a notice requirement at all for any conditions in the context of supervised release”), quoted in United States v. Weathert…
- United States v. Eric Winding, 817 F.3d 910 (5th Cir. 2016).published Commission.” United States v. Weatherton, 567 F.3d 149, 158 (5th Cir.2009) (quotation marks omitted).
- United States v. Christopher Oliphant, 456 F. App'x 456 (5th Cir. 2012).unpublished
At page 151 Considering defendant's conduct in sentencing3 citing cases
- United States v. Chanda Huor, 852 F.3d 392 (5th Cir. 2017).published Id. at 151, 154 .
- United States v. Nobryan McGee, 559 F. App'x 323 (5th Cir. 2014).unpublished United States v. Weatherton, 567 F.3d 149, 152 (5th Cir.2009). 29 .
At page 154 Determining reliability of information for sentencing purposes3 citing casesunder plain error review, sex offender conditions could be predicated on a 1979 rape conviction and 'a 2007 warrant charging the defendant with rape
- United States v. Patrick Evans, 727 F.3d 730 (7th Cir. 2013).published
- United States v. Blake Childress, 874 F.3d 523 (6th Cir. 2017).published
At page 158 cited at this page1 citing case
- United States v. Eric Winding, 817 F.3d 910 (5th Cir. 2016).published Commission.” United States v. Weatherton, 567 F.3d 149, 158 (5th Cir.2009) (quotation marks omitted).
v.
Bobby J. WEATHERTON, Defendant-Appellant
Bobby J. Weatherton appeals the sentence imposed by the district court following the revocation of his probation. He argues that the district court plainly erred in imposing special conditions of supervised release which require him to undergo psychosexual evaluation and potential treatment and which restrict his possession of sexually explicit materials. We affirm.
I.
In April 2006, Bobby J. Weatherton pleaded guilty to making a false claim to the Federal Emergency Management Agency (FEMA) following Hurricane Katrina. According to the presentence report (PSR), Weatherton was convicted of forcible rape and aggravated burglary in 1979 and was sentenced to 35 years’ imprisonment. He was released from imprisonment in 2002. Weatherton was sentenced to three years of probation for FEMA fraud. This probation was subject to several conditions including, inter alia, that he not commit another federal, state, or local crime; that he report to the probation officer; and that he notify the probation officer at least ten days prior to any change in residence or employment. In August 2007, the probation office peti[*152] tioned the district court for a warrant for Weatherton’s arrest, alleging that Weatherton had violated the conditions of his probation. The petition alleged that (1) a warrant for Weatherton’s arrest had been issued for attempted first degree murder, aggravated kidnaping, and aggravated rape; (2) Weatherton failed to report to his probation officer and that his whereabouts were unknown; and (3) Weatherton failed to notify his probation officer of his current address.
At a probation revocation hearing, Weatherton stipulated to the second and third violations. The first violation, which involved a pending state charge, was dismissed from the petition. The district court revoked Weatherton’s probation and sentenced him to three months’ imprisonment and two years of supervised release. The court further ordered that Weather-ton comply with numerous conditions of supervised release, including that he register as a sex offender, undergo a psycho-sexual evaluation and any necessary treatment, and that he not possess any sexually explicit materials as defined in 18 U.S.C. § 2256(2). Weatherton offered no objection to the district court’s sentence. Weatherton timely appealed.
II.
Pursuant to Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007), “this court must ensure the district court committed no significant procedural error. If the imposition of the imprisonment term is procedurally sound, this court then considers the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” United States v. Rodriguez, 558 F.3d 408, 411-12 (5th Cir.2009) (quotations omitted). Weatherton does not challenge the sentencing procedure. Generally, the “the appropriate standard by which to review conditions of supervised release, which are part of the sentencing decision is a deferential abuse-of-discretion standard, pursuant to Gall.” Id. at 412. However, because Weatherton did not object to the imposition of the special conditions in the district court, we review for plain error only. See United States v. Talbert, 501 F.3d 449, 452 (5th Cir.2007); see also Fed. R.Crim.P. Rule 52(b) (“A plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.”). As the Supreme Court recently reiterated, there are four steps, or prongs, to “plain-error review” under Rule 52(b):
First, there must be an error or defect — some sort of deviation from a legal rule — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the district court proceedings. Fourth and finally, if the above three prongs are satisfied, the court of appeals has the discretion to remedy the error — discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings. Meeting all four prongs is difficult, as it should be.
Puckett v. United States, — U.S. —, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266, 275 (2009) (quotations omitted).
III.
Weatherton first argues that the district court plainly erred in requiring, as special conditions of his supervised release, that Weatherton undergo psychosexual evaluation and any necessary treatment[*153] and not possess sexually explicit materials. A district court may impose any condition of supervised release “it considers to be appropriate” so long as certain requirements are met. 18 U.S.C. § 3583(d). First, the condition must be “reasonably related” to one of four factors: [1] (1) the nature and characteristics of the offense and the history and characteristics of the defendant, (2) the deterrence of criminal conduct, (3) the protection of the public from further crimes of the defendant, and (4) the provision of needed educational or vocational training, medical care, or other correctional treatment to the defendant. Id. §§ 3583(d)(1), 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D). Second, the condition cannot impose any “greater deprivation of liberty than is reasonably necessary” to advance deterrence, protect the public from the defendant, and advance the defendant’s correctional needs. See id. §§ 3583(d)(2), 3553(a)(2)(B), (a)(2)(C), (a)(2)(D). Finally, the condition must be consistent with the policy statements issued by the Sentencing Commission. Id. § 3583(d)(3).
Weatherton contends that the conditions in question are not reasonably related to his FEMA fraud conviction, that his 1979 rape conviction is insufficient to support the need for the conditions, and that his 2007 arrest warrant cannot provide a basis for the conditions because it is an unsubstantiated allegation which the government abandoned as a basis for revocation. Because district courts must consider the defendant’s history and characteristics, they may take into account “a defendant’s prior conviction for a sex offense when imposing sex-offender-related special conditions when the underlying conviction is for a non-sexual offense.” United States v. Deleon, 280 Fed.Appx. 348, 351 (5th Cir.2008); see United States v. Dupes, 513 F.3d 338, 344 (2d Cir.2008) (upholding sex-offender related special conditions as part of sentence for securities fraud where they were reasonably related to defendant’s “history and characteristics as a sex offender, his need for treatment, and the public’s need for protection from him”); see also United States v. Prochner, 417 F.3d 54, 63 (1st Cir.2005) (“[T]he fact that the special condition of sex offender treatment is not related to the crime of conviction does not, by itself, render the condition invalid.”). [2] Moreover, we have previously held in an unpublished opinion that a sentencing court may consider charged criminal behavior of the defendant even in the absence of a conviction if the defendant admitted the behavior or the information was derived from a reliable source. See Deleon, 280 FedAppx. at 351 (holding that district court did not abuse its discretion or plainly err in considering defendant’s indictment for aggravated sexual assault of a child where the information was contained in the PSR and the defendant failed to state that he did not commit the offense); see also U.S.S.G. § 6A1.3(a) (“In resolving any dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence[*154] applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.”); Rodriguez, 558 F.3d at 412 (“Title 18 of the United States Code, section 3661 ... provides ‘[n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.’ ”); United States v. Kingsley, 241 F.3d 828, 833 n. 7 (6th Cir.2001) (“[P]rior criminal behavior by the defendant, which, as in the case sub judice, the defendant did not deny during his sentencing proceeding, and/or which was supported by information derived from a reliable source, is relevant to sentencing, even if that prior criminal conduct did not lead to a criminal conviction.”).
The record shows that the district court was aware of both Weathertoris “lengthy history” and the state warrant for Weathertoris arrest. Although Weatherton describes the warrant for his arrest as an “unsubstantiated allegation,” the petition for revocation contains a reasonably detailed account of the alleged crime, [3] and in light of Weathertoris apparent flight and his failure to deny having committed the crime either before the district court or on appeal, we cannot say that the warrant plainly lacked sufficient indicia of reliability. Cf. Rodriguez, 558 F.3d at 414 (“Notably, Rodriguez does not deny he sexually assaulted the fifteen-year-old girl. He merely points out the procedural posture of the pending charge, and offers nothing more than conclusory assertions to rebut the reliability of the PSR. Thus, he has not met his burden of demonstrating the information in the PSR was unreliable or untrue, and therefore has not shown the district court erred in considering information in the PSR.”). Because Weatherton does not otherwise contest the relationship between the conditions at issue and the statutory factors, he has not established plain error. [4]
[*155] Weatherton also argues that the challenged conditions are obviously a greater deprivation of Weathertoris liberty than is reasonably necessary to achieve the goals of deterrence and public safety because he was already required to register a sex offender under state law as a result of his 1979 aggravated rape conviction. The challenged conditions, however, are clearly aimed, at least in part, at Weather-ton’s therapeutic needs. Moreover, given that Weatherton is alleged to have committed another rape despite being registered as a sex offender, we cannot say that it would be plain error to conclude that sex offender registration, by itself, was insufficient to protect the public from Weathertoris future crimes. 18 U.S.C. § 3583(d)(2). Therefore, Weatherton has not established plain error. [5]
Finally, Weatherton argues for the first time on appeal that he was given no notice that his revocation sentence would include the above outlined special conditions. As we recently stated in United States v. Ybarra:
Ybarra contends that the sex offender conditions must be vacated because the district court did not give him notice that it was contemplating the imposition of such conditions, thereby violating Federal Rule of Criminal Procedure 32(h). Rule 32(h) states that “[b]efore the court may depart from the applicable sentencing range on a ground not identified for departure either in the presentence report or in a party’s prehearing submission, the court must give the parties reasonable notice that it is contemplating such a departure.” [Fed. R.Crim.P. 32(h).] Rule 32 promotes “focused, adversarial resolution of the legal and factual issues relevant to fixing Guidelines sentences.” [Burns v. United States, 501 U.S. 129, 137, 111 S.Ct. 2182, 115 L.Ed.2d 123 (1991).]
In United States v. Coenen, we held that courts are required to give “reasonable pre-sentence notice” that sexual offender registration provisions are “under consideration.” [135 F.3d 938, 943 (5th Cir.1998).] In Coenen, we recognized that “invasive” sex offender notification provisions were analogous to upward departures from the Sentencing Guidelines and thus could not be categorized as simple “occupational restriction^] ... which do[ ] not require ... notice.” [Id.] But Coenen was decided before United States v. Booker, which invalidat[*156] ed the mandatory features of the Guidelines. [543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).] Whether, post Booker, sex offender conditions require notice, or even whether there is a notice requirement at all for any conditions in the context of supervised release, is unclear.
289 Fed.Appx. 726, 733-34 (5th Cir.2008) (footnotes omitted). The government argues that,' based on Irizarry v. United States, — U.S. —, 128 S.Ct. 2198, 2202-04, 171 L.Ed.2d 28 (2008), in which the Supreme Court held that in an original sentencing proceeding, a defendant is not entitled to advance notice of the imposition of a non-guideline sentence, special conditions of supervised release also do not require advance notice. We need not decide this issue, however. Because it is not clear whether Weatherton was entitled to notice, the district court did not plainly err in not providing it. Puckett, 129 S.Ct. at 1429, 173 L.Ed.2d at 275.
rv.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
. See United States v. Jimenez, 275 Fed.Appx. 433, 442 (5th Cir.2008) (noting that ''[ejvery circuit court reaching the issue” has interpreted section 3583(d) “only to require a reasonable relationship with any of the four factors^] not necessarily all of them” and collecting cases); see also United States v. Love, 431 F.3d 477, 484 (5th Cir.2005) (stating that a special condition must be "related to a punitive goal”).
. Although an unpublished opinion issued after January 1, 1996 is not controlling precedent, it may be considered as persuasive authority. Ballard v. Burton, 444 F.3d 391, 401 and n. 7 (5th Cir.2006).
. The petition for revocation states:
The offense details indicate the defendant took a female to a[n] open field where he beat, strangled, and raped her. After she pled for her life, he left her bound at the ankles and wrists and unclothed from the waist down. The victim managed to get only her feet untied and she ran to a nearby chemical plant, where workers discovered her walking with her hands bound and unclothed from the waist down.
. We note that at least two of our sister circuits have vacated similar prohibitions against possessing adult pornography and remanded for resentencing where the district court failed to adequately explain and the court of appeals could not ascertain a viable basis for the imposition of the condition in the record. See United States v. Perazza-Mercado, 553 F.3d 65, 75-79 (1st Cir.2009) (holding that district court plainly erred in imposing a "ban on the possession of adult pornography as a condition of supervised release, without any explanation and without any apparent basis in the record for the condition”); United States v. Voelker, 489 F.3d 139, 150-53 (3d Cir.2007) (holding on review for abuse of discretion that "[[t]he district court] ignored our caution that 'the deprivation of liberty can be no greater than necessary to meet the goals [of 18 U.S.C. § 3583(d)(2)] .... [and] failed to provide an analysis or explanation to support this broad restriction’ ”). But see United States v. Daniels, 541 F.3d 915, 927-28 (9th Cir.2008) (holding that district court "did not plainly err in limiting [defendant’s] possession of materials depicting sexually explicit conduct because the condition furthered the goals of rehabilitating him and protecting the public where defendant was convicted of possession of child pornography and could 'slip into old habits of amassing child pornography’ ”); United States v. Rearden, 349 F.3d 608, 611 (9th Cir.2003) (upholding similar condition on plain error review); United States v. Carpenter, 280 Fed.Appx. 866, 869 (11th Cir.2008) ("With regard to the ban on possessing sexually explicit materials, neither this Court nor the Supreme Court have held a[*155] lifetime condition prohibiting a similarly situated sex offender from possessing any sexually explicit materials is overly broad. Accordingly, the district court did not plainly err in prohibiting [defendant convicted of sex trafficking of a minor and enticing a minor to engage in prostitution] from possessing sexually explicit materials.”).
As discussed elsewhere in this opinion, Weatherton argues only that (1) "[g]iven the age of his previous sex offense and the paucity of information in the record regarding the circumstances of the issuance of the 2007 arrest warrant, this record does not support, without more, that he has a propensity to commit future sexual offenses” such that the challenged conditions have a reasonable relationship to the relevant goals; and (2) the challenged conditions are a greater deprivation of his liberty than is reasonably necessary to achieve the goals of deterrence and public safety because he is already required to register a sex offender under state law. Thus, Weatherton does not argue the prohibition against the possession of sexually explicit materials is not generally reasonably related to sex offenses and offenders, nor does he make any argument specifically regarding his liberty interest in possessing sexually explicit materials. We express no opinion on the merits of these waived arguments. See Fed. R.App. P. 28(a)(9) (requiring that the argument contain the "appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies”).
. See supra note 5.