United States v. Miller, No. 15-2239 (7th Cir. 2016)
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Miller cut a hole into his basement bathroom wall, installed a clear shower curtain, then took photos and videos of girls, aged 12-16, undressing or showering. He specifically directed some of them to shower in the basement bathroom. One victim was half‐sister to Miller’s son. Miller’s older son discovered nude videos on Miller’s computer and confronted him. Miller stated that the female was Miller’s adult girlfriend. The computer disappeared; Miller continued to film girls in the bathroom. Eventually, Miller’s son found the hole in the drywall and contacted the police. Miller was convicted of 22 counts of sexual exploitation of children, 18 U.S.C. 2251(a). The court stated that there was “only one reasonable inference," that he intended to view the girls for sexual arousal. With a guidelines range of 324-405 months, Miller was sentenced to 216 months’ imprisonment, with 15 years of supervised release. Special conditions required that Miller allow probation to notify others of any relevant risk associated with his history, that he submit to physiological testing, and that he not have contact with any person under the age of 18 unless supervised, including his own children. The Seventh Circuit affirmed, rejecting an argument that there was insufficient evidence to find that the videos he created were “lascivious” and challenges to his sentence and conditions of supervised release.
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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 15 2239 UNITED STATES OF AMERICA, Plaintiff Appellee, v. BRIAN A. MILLER, Defendant Appellant. ____________________ Appeal from the United States District Court for the Central District of Illinois. No. 13 CR 10098 — James E. Shadid, Chief Judge. ____________________ ARGUED FEBRUARY 25, 2016 — DECIDED JULY 14, 2016 ____________________ Before BAUER, MANION, and KANNE, Circuit Judges. KANNE, Circuit Judge. Defendant Brian Miller filmed at least five minor girls undressing and showering using a hole he made in his basement bathroom wall. After a bench trial, the district court convicted him of twenty two counts of sex ual exploitation of children. Miller appeals, arguing that there was insufficient evidence to find that the videos he created were “lascivious.” He also challenges various aspects 2 No. 15 2239 of his sentence and conditions of supervised release. We af firm. I. BACKGROUND Sometime before July 2011, Miller cut a hole through the drywall from a basement utility room into the basement bathroom. He scraped off part of the backing of the bath room mirror and lined it up with the hole in the wall. He lat er installed a clear shower curtain. From July 2011 through May 2012, Miller used his cell phone to take photos and videos of five different minor fe males, aged twelve to sixteen, undressing and/or showering in the basement bathroom. He specifically directed at least two of the minors to shower in the basement bathroom in stead of the other bathroom in his home. Miller would go into the utility room and use his cell phone to film the girls in the bathroom as they became either fully or partially nude. One of the victims was half sister to Miller’s younger son. In November 2011, Miller’s older son discovered some nude videos on Miller’s computer. His son confronted him, and Miller told him that the female was Miller’s adult live in girlfriend. Afterward, the computer disappeared, but Miller continued to film minor females in the bathroom. In June 2012, Miller’s son found the hole in the drywall and confronted Miller again. Miller’s son left the home, at which point Miller contacted police to report his son as miss ing and out of control. After police located Miller’s son, he told them about the videos and hole in the wall. On June 16, 2012, authorities executed a search warrant. No. 15 2239 3 On September 25, 2013, Miller was indicted on three counts of attempted exploitation of children and twenty two counts of sexual exploitation of children in violation of 18 U.S.C. § 2251(a). He consented to a bench trial. Miller’s de fense was that the images were not a “lascivious exhibition of the genitals” within the meaning of 18 U.S.C. § 2256(2)(A) because they were “mere nudity.” After presentation of the evidence, the government dismissed three counts of at tempted exploitation of children. The district court found Miller guilty of all remaining counts. It rejected Miller’s argument that the videos were mere nudity and did not draw attention to the girls’ genitals. In rejecting Miller’s arguments, the district court relied on the fact that Miller “took a number of steps before he could even videotape,” including cutting the hole in the wall, scraping off the mirror backing, lining up the holes, instruct ing the girls to shower in the basement, filming from the other side of the wall, and tracking the girls’ movements. Those actions, the district court found, led to “only one rea sonable inference from these facts, as to the purpose of Mil ler’s actions and his mental state, and that is that he intended to view the minor teenage girls for his own sexual arousal.” The district court also rejected Miller’s argument that he had not zoomed in on the girls’ pubic area, noting that “[t]here is no requirement under the statute to focus only on the pubic area, just that there is a focus on the pubic area.” At sentencing, Miller faced a mandatory minimum of 180 months and at least 5 years of supervised release. The dis trict court determined that he had an offense level of 39 and a criminal history category of III, producing a guidelines range of 324 to 405 months. After discussing the relevant 4 No. 15 2239 sentencing factors, the district court sentenced Miller to a be low guidelines sentence of 216 months’ imprisonment. It al so imposed a 15 year term of supervised release, which in cluded three special conditions to which Miller objected. The first objectionable condition was that Miller “notify any individual or entity of any risk associated with his histo ry.” In response to Miller’s argument that the condition was vague and overbroad, the district court modified it to re quire: “The defendant shall allow probation to notify any individual(s) or entity of any risk associated with his history, which would be incident to areas or people or agencies fre quented or attended by minors.” The second condition to which Miller objected was that he “shall submit to physiological testing” because the testing could lead to a violation of his right against self incrimination. The district court overruled the objection, not ing that Miller could invoke his right at the time an issue arose during testing. Miller’s third objection was to the condition that he not have “contact with any person under the age of 18” unless it is supervised, “in the course of normal commercial busi ness,” or “unintentional incidental contact.” Miller argued that the condition was improper because it applied to his own children. The district court overruled the objection, not ing that one of the victims is half sister to one of Miller’s sons. II. ANALYSIS On appeal, Miller challenges his convictions, arguing that there was insufficient evidence to find that the videos were “lascivious.” He also challenges the length of his sentence No. 15 2239 5 and the imposition of three of the conditions of supervised release. We reject Miller’s arguments. A. Sufficiency of the Evidence of Lasciviousness Miller’s primary contention on appeal is that the evi dence at his trial was insufficient to sustain his convictions for sexual exploitation of children. “We review challenges to the sufficiency of the evidence at a bench trial under the same demanding standard applied to a jury trial.” United States v. Wasson, 679 F.3d 938, 949 (7th Cir. 2012). That means “we will overturn the verdict only if we conclude, after viewing the evidence in the light most fa vorable to the prosecution, that no rational trier of fact could have found the defendant guilty beyond a reasonable doubt.” Id. The government charged Miller with violations of 18 U.S.C. § 2251(a), which provides: “Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in, … with the intent that such minor engage in, any sexually explicit conduct for the purpose of producing any visual depiction of such conduct … shall be punished” by a term of imprisonment of at least 15, but not more than 30, years. 18 U.S.C. § 2251(a), (e). “Sexually explicit conduct” means a “lascivious exhibition of the genitals or pubic area of any person.” § 2256(2)(A)(v). The word “lascivious,” however, is undefined in the stat ute, and we have offered limited instruction on its definition. Because lascivious means “tending to arouse sexual desire,” Webster’s Third New Int’l Dictionary, “more than nudity is required to make an image lascivious.” United States v. Griesbach, 540 F.3d 654, 656 (7th Cir. 2008); United States v. 6 No. 15 2239 Russell, 662 F.3d 831, 843 (7th Cir. 2011). Instead, we require that “the focus of the image must be on the genitals or the image must be otherwise sexually suggestive.” Griesbach, 540 F.3d at 656. Aside from those principles,1 the question of whether an image is lascivious “is left to the factfinder to resolve, on the facts of each case, applying common sense.” Russell, 662 F.3d at 843. We need only decide whether the evidence was suffi cient to support a finding that there was an “exhibition” of the pubic area that was “lascivious.” We look first to the videos themselves. In each of the vid eos forming the basis for a count of conviction, the minor’s nude pubic area is visible, supporting the conclusion that there was an “exhibition” of the pubic area. See United States v. Price, 775 F.3d 828, 836–40 (7th Cir. 2014) (“Exhibition … is a showing or presenting to view.” (internal quotation marks omitted)). Elements of the videos also support a finding of lasciviousness. The videos depict minors nude in the shower and sometimes undressing prior thereto. As we have de scribed before, “showers and bathtubs are frequent hosts to fantasy sexual encounters as portrayed on television and in 1 We acknowledge that there is a “test” for lasciviousness that comes from United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986). Neither the government nor Miller advocates our adoption of the Dost factors, and we have discouraged its mechanical application. See United States v. Price, 775 F.3d 828, 839–40 (7th Cir.2014) (“This case does not require us to de termine whether the Dost factors are always or never permissible, but we do take this opportunity to discourage their routine use.”). Resolution of this case does not require adoption of Dost, so we decline to do so. No. 15 2239 7 film.” United States v. Schuster, 706 F.3d 800, 808 (7th Cir. 2013) (internal quotation marks omitted). Miller argues that the videos do not support a finding that he “focused” on the genitals because the girls’ entire bodies were in the videos, and he did not “zoom in” on the pubic area. There is no requirement in the statute that the creator zoom in on the pubic area. Nor is there a require ment that the pubic area be the sole focus of the depiction. Determining the focus of a depiction or whether it is “oth erwise sexually suggestive” is properly left to the fact finder. Griesbach, 540 F.3d at 656. Miller also seizes on the district court’s statement that it “viewed the videos and to me … , these videos after viewing them are simply naked teenage minor girls.” According to Miller then, the videos cannot be lascivious because they de pict “mere nudity.” Fact finders are not constrained, howev er, to the four corners of these videos to find that they were lascivious. Instead, the finder of fact may look to the crea tor’s intent in making these videos, at which point it is clear that there was sufficient evidence to support a finding of las civiousness. See Russell, 662 F.3d at 843. Miller argues that relying on his intent is impermissible because “there is no intent prong in the statute.”2 (Appellant 2 We assume that Miller is arguing that there is no intent prong in the meaning of the word “lascivious,” not the entire statute. To the extent that he suggests there is no intent prong in the statute as a whole, he is also incorrect. It criminalizes a person who uses a minor, “with the intent that such minor engage in, any sexually explicit conduct for the purpose of producing any visual depiction of such conduct.” 18 U.S.C. § 2251(a) (emphasis added). 8 No. 15 2239 Br. 18.) Miller is wrong. Of course there is an element of in tent embodied in an evaluation of whether an image is las civious. If there were not, the statute would criminalize a mother taking a picture of her child in the bathtub or a doc tor taking a picture of a minor patient’s pubic area for a med ical diagnosis. In both of those situations, the creator may be intending to take a photograph of an “exhibition” of the mi nor’s pubic area, but not a “lascivious” one. Whether the im age “arouses sexual desire” is informed by the intent of the person creating the image. That is not to say that the creator’s subjective intent may be wholly divorced from the image created.3 But the two do go hand in hand. Subjective intent—particularly of the crea tor—is a relevant, and quite probative, consideration. “Alt hough the primary focus in evaluating the legality of the 3 We agree with Miller in the general proposition that the subjective in tent of the viewer cannot be the only consideration in a finding of lascivi ous. The statute does not criminalize Sears’s catalogs because they are in the hands of a pedophile. That is why courts have cautioned against the sole use of the viewer’s subjective intent in evaluating lasciviousness: We must, therefore, look at the photograph, rather than the viewer. If we were to conclude that the photographs were lascivious merely because [the defendant] found them sexually arousing, we would be engaging in con clusory bootstrapping rather than the task at hand—a legal analysis of the sufficiency of the evidence of lasciv iousness. United States v. Villard, 885 F.2d 117, 125 (3d Cir. 1989). Here, both the videos themselves and Miller’s subjective intent as the viewer and creator inform the conclusion that the videos of the nude minors constitute a lascivious exhibition of the pubic area. No. 15 2239 9 charged photographs must be on the images themselves, the cases reveal that the intent and motive of the photographer can be a relevant consideration in evaluating those images.” Russell, 662 F.3d at 843 (citations omitted). Miller’s intent is clear. He took substantial steps in modi fying his basement, instructing girls to use the downstairs bathroom, and filming them in the shower. The steps Miller took to surreptitiously create the images undermine an in ference that there was a legitimate purpose to his video pro duction. Cf. United States v. Holmes, 814 F.3d 1246, 1252 (11th Cir. 2016) (“[A] lascivious exhibition may be created by an individual who surreptitiously videos or photographs a mi nor and later captures or edits a depiction, even when the original depiction is one of an innocent child acting inno cently.”). Instead, the reasonable inference drawn by the fact finder is that he was creating the videos because they sexual ly excite him. There were also videos introduced at trial of Miller en gaged in intercourse with adult females, a video of a nude adult female in the bathroom, and a video of Miller mastur bating while watching homemade pornography. These vide os support the district court’s finding that the filming of these nude minors was for the purpose of sexual arousal. See United States v. Raney, 342 F.3d 551, 558 (7th Cir. 2003) (find ing homemade adult pornography relevant to the defend ant’s “intent to manufacture child pornography depicting identical acts”). And finally, after Miller’s son found the vid eos the first time, Miller lied to cover up his behavior, sup porting the reasonable inference that his videos were not made for a legitimate purpose. Cf. Russell, 662 F.3d at 837 10 No. 15 2239 (noting that the defendant “told [the minors] not to tell their mother”). Therefore, we find that the evidence is sufficient to sus tain a conviction for sexual exploitation of children by the creation of a depiction that includes a lascivious exhibition of the genitals. See United States v. Johnson, 639 F.3d 433, 441 (8th Cir. 2011) (reinstating jury verdict and finding evidence of lasciviousness sufficient where the defendant set up a camera and then instructed female weightlifters to weigh themselves in the nude). B. Term of Imprisonment Next, Miller challenges his below guidelines sentence of 18 years’ imprisonment as both procedurally unsound and substantively unreasonable. It is not. We first review whether there was a procedural error in sentencing de novo. United States v. Annoreno, 713 F.3d 352, 356–57 (7th Cir. 2013). If we are satisfied that there was no procedural error, we then review the substantive reasona bleness of the sentence for an abuse of discretion. Id. For the procedural challenge, we make sure that the dis trict court calculated the correct guidelines range, considered the 18 U.S.C. § 3553(a) factors, and adequately explained the chosen sentence. Id. at 357. A district court is not required, however, to enumerate and provide an explanation for each § 3553(a) factor. United States v. Rodriguez Alvarez, 425 F.3d 1041, 1047 (7th Cir. 2005). Instead, “we regularly affirm sen tences where the district judge does not explicitly mention each mitigation argument raised by the defendant,” United States v. Paige, 611 F.3d 397, 398 (7th Cir. 2010), as long as it gave “meaningful consideration to the relevant factors in No. 15 2239 11 light of the individual circumstances of the case.” United States v. Grigsby, 692 F.3d 778, 791 (7th Cir. 2012) (internal quotation marks omitted). Miller argues that the district court committed procedur al error by not considering all of the § 3553(a) factors. He claims that “there is no evidence or reference suggesting that [Miller] is a particular danger to others, has a high likelihood of recidivism, or that treatment would likely be unsuccess ful” and that “[t]he court did not address whether there was a less restrictive means to satisfy the seriousness of the of fense, promote respect for the law, provide adequate deter rence, or protect the public.” (Appellant Br. 26.) We may swiftly reject Miller’s stock argument. Although the district court did not explicitly list each § 3553(a) factor, it gave meaningful consideration to the relevant factors. It con sidered that Miller had made a sincere apology, was re morseful, and had a limited criminal history. It contrasted that, however, with the seriousness of Miller’s offense, in particular the detrimental effect on the victims. It also con sidered the circumstances of the offense, which required ex tensive preparation including cutting a hole, scraping off the mirror, and filming over a long period of time, explaining that Miller’s conduct was far worse than just a “lapse in judgment.” Given that discussion, the district court did not commit a procedural error in its consideration of the § 3553(a) factors. Because there was no procedural error, we next evaluate the substantive reasonableness of Miller’s sentence. Because “[i]t is hard to conceive of below range sentences that would be unreasonably high,” United States v. George, 403 F.3d 470, 473 (7th Cir. 2005), there is a nearly irrebuttable presumption 12 No. 15 2239 that a below range sentence is reasonable. See United States v. Jackson, 598 F.3d 340, 345 (7th Cir. 2010) (“We have never deemed a below range sentence to be unreasonably high.” (internal quotation marks omitted)). Miller has not rebutted that presumption. In fact, he has offered no specific arguments as to why the sentence the dis trict court imposed should have been different. He balks at being labeled a “felon,” having to “register as a sex offender, face restrictions on where he can live, [and] face restrictions on the jobs he can work.” (Appellant Br. 27–28 (citations omitted).) But Miller does not explain how any of these limi tations make his sentence unreasonable. Had the district court sentenced him to the statutory mandatory minimum of 15 years, Miller would still be subject to these same limita tions. Miller’s objections to the stigma of his conviction are insufficient grounds for finding that the sentence imposed is unreasonable. Miller next argues that after considering “the likelihood to reoffend, the option of treatment, the ability to supervise [Miller] in a less restrictive setting than the Federal Bureau of Prisons, and many others, the district court did impose a sentence greater than necessary.” (Id. at 28–29.) But Miller does not explain how any of those considerations make his below guidelines sentence unreasonable. Are we to take him at his word that he is not likely to reoffend? The opposite conclusion is quite reasonable given that Miller continued to videotape minor girls even after his son caught him doing so. Finally, Miller asks us to consider the punishment he would have received had he been charged in state court. Ac cording to Miller, in Illinois, he would have been guilty of “unauthorized video recording,” 720 ILCS 5/26 4, which is No. 15 2239 13 punishable by 2–5 years’ imprisonment. He argues that “[i]t is difficult to reasonably reconcile the possible punishment administered by the State of Illinois as compared to the mandatory minimum sentence of 15 years required to be imposed in federal court.” (Appellant Br. 29.) We disagree. Miller was convicted of sexual exploitation of children, not unauthorized video recording. It is strange to suggest that those two offenses are comparable in seriousness. Mil ler’s argument only reinforces the district court’s concern that Miller “think[s] that maybe these young people weren’t victims because they didn’t know that they were the subject of your viewing or videotaping.” Miller is free to express his concern about the federal mandatory minimum sentence to Congress. His concern does not, however, make his below guidelines sentence unreasonable. C. Conditions of Supervised Release Miller also challenges three conditions of his supervised release: (1) notification of risk; (2) no contact with minors; and (3) submission to physiological testing. We review any conditions to which the defendant object ed in the district court for an abuse of discretion. United States v. Poulin, 809 F.3d 924, 930 (7th Cir. 2016). Any condi tions uncontested in the district court are reviewed only for plain error. Id. 1. Notification of Risk The district court, in response to Miller’s objection, modi fied the notification of risk condition to require that Miller “allow probation to notify … areas or people or agencies fre quented or attended by minors” of “any risk associated with [Miller’s] history.” 14 No. 15 2239 Miller, parroting United States v. Thompson, 777 F.3d 368, 379 (7th Cir. 2015), first argues that the condition is vague because it is not clear what “history” and “risk” mean. Our case law has been critical of vague terms like “risk.” But our criticism has been guided by the principle that a defendant “is entitled to special conditions that generally apprise him of what conduct is lawful and what could land him back in prison for violating his supervised release conditions.” Unit ed States v. Adkins, 743 F.3d 176, 193 (7th Cir. 2014). There is no such problem here. To comply with this con dition of supervised release, Miller does not have to do any thing besides give permission to probation to notify third parties. The only way Miller could violate the condition is by withholding consent. That requirement is not vague. Relying on United States v. Bonnano, Miller next argues that the condition is an improper delegation of authority to probation. 146 F.3d 502, 511 (7th Cir. 1998). Bonnano is inap posite. In Bonnano, we held that the district court could not delegate to probation the discretion to determine the number of random drug tests the defendant had to take. Id. at 510– 11. The delegation was improper because the statute author izing drug tests “requires that the court determine the num ber of drug tests to which the defendants must submit.” Id. at 511; see also 18 U.S.C. § 3583(d). There is no similar statuto ry requirement with respect to the notification of risk condi tion. Furthermore, the district court limited the discretion of probation in response to Miller’s vagueness objection. It lim ited notification to places “frequented or attended by mi nors” and indicated that it was thinking of “day camps, camps, scouting, little leagues, those types of things.” Alt No. 15 2239 15 hough we disapprove of conferring “probation officers with essentially unlimited discretion[,] … at some point, we must fairly presume [the defendant]’s probation officer will apply the conditions in a reasonable manner.” United States v. Kappes, 782 F.3d 828, 857 (7th Cir. 2015) (third alteration in original) (citation and internal quotation marks omitted). We think the district court gave sufficient instructions for the probation officer to exercise his discretion to determine the places that may need to be notified of the risk Miller poses to minors. Cf. United States v. Bloch, No. 15 1648, 2016 WL 3361724, at *10 (7th Cir. June 17, 2016) (finding district court’s explanation of the term “elsewhere” to mean “a ‘public place,’ such as a Starbuck’s coffee shop” provided probation with sufficient guidance). Should the probation officer abuse his discretion in making those determinations, Miller may bring that to the district court’s attention. Kappes, 782 F.3d at 857–58. 2. No Contact with Minors Miller also challenges the condition that he not have any contact with “any person under the age of 18” unless it is supervised, “in the course of normal commercial business,” or “unintentional incidental contact.” The district court re fused to make an exception for children related to Miller be cause one of the victims was the half sister of his younger son. Miller argues that the condition interferes with his right to familial association. We note first that Miller is serving an 18 year term of imprisonment, so any minor children he may have now will no longer be minor age upon his release from custody. To the extent that Miller quibbles with the condition because of hypothetical minor female relatives, we think the 16 No. 15 2239 condition is substantially justified given that one of the vic tims was related to him. With respect to hypothetical minor male relatives, Miller’s argument is “too contingent to be ripe for review.” See Kappes, 782 F.3d at 859. Miller’s remaining arguments with respect to the no contact condition were not raised to the district court, and so we review them for plain error only. Miller argues that he “cannot be sure whether contact covers incidental contact” and that he “cannot know whether this is a strict liability condition.” (Appellant Br. 34.) The condition expressly excludes from the no contact provision any “unintentional incidental contact.” If Miller is confused as to whether the condition covers incidental con tact, he need only read the condition. The same goes for the mens rea requirement; unintentional contact is excluded from the no contact provision. Miller also argues that the word “contact” is unreasona bly vague because he “cannot be sure whether contact is physical contact, contact by telephone, and/or contact by email or letter.” (Id. at 34.) Uncertainty regarding the method of contact is quite different from our prior cases invalidating no contact provisions. See, e.g., Thompson, 777 F.3d at 376. In Thompson, we emphasized that the condition would crimi nalize incidental and unintentional contact—a concern alle viated in this case by the district court’s modification. We did not, however, take issue with “contact” being vague or over broad with respect to the method of contact, nor has Miller cited any cases where we have. That is because it is not vague; the condition prohibits all contact. Different methods of contact are still contact. No. 15 2239 17 Miller’s final challenge to the no contact provision is that it is overbroad because it prohibits him from contacting mi nor males and prepubescent females, even though there is no evidence that he is attracted to either group. We agree with Miller that this one aspect of the condition is overbroad. But Miller has not established “that a failure to correct [the error] would jeopardize the fairness, integrity, or public rep utation of the criminal proceedings,” United States v. Silvious, 512 F.3d 364, 371 (7th Cir. 2008), and so he has not justified vacating his sentence. This is not a case where multiple er rors in the conditions of supervised release occurred, and so we decline to vacate Miller’s sentence for correction of this error, especially in light of the fact that Miller is not without a remedy: Miller is free to request modification of the condi tion pursuant to 18 U.S.C. § 3583(e)(2). 3. Physiological Testing The final condition of supervised release that Miller chal lenges is the one requiring him to submit to physiological testing to the extent ordered by his Sex Offender Treatment Program. He argues that the condition is “impermissibly vague, overbroad, and unnecessary,” “a greater than neces sary deprivation on his liberty,” and “not sufficiently tied to … § 3553,” in large part because it may subject him to ple thysmograph testing. (Appellant Br. 32.) Miller also argues that physical testing may infringe his ability to exercise his Fifth Amendment right against self incrimination. We rejected arguments similar to Miller’s in Kappes, 782 F.3d at 855. We held that any challenge to the hypothetical testing the defendant may be forced to undergo “involves too many contingencies to make the issue ripe for review.” Id. We also rejected Miller’s argument with respect to invok 18 No. 15 2239 ing Fifth Amendment rights, explaining that “[a] defendant on supervised release retains the privilege to invoke his Fifth Amendment rights.” Id. at 855–56. Miller offers no reason why we should not hold that his speculative challenges are not ripe. The closest he comes is by implying that his probation officer would unfairly inter pret this condition of supervised release so that he could re voke his supervised release and relieve himself of supervis ing Miller during the time he is back in prison. We believe that is an unfair characterization of probation officers gener ally and should not constitute grounds for this court to con sider speculative concerns about supervised release condi tions. Should Miller be given a vindictive probation officer whose sole goal is to return him to prison, we expect that he would bring that to the district court’s attention. III. CONCLUSION For the foregoing reasons, we AFFIRM Miller’s convic tion, terms of imprisonment and supervised release, and conditions of supervised release.
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