author: TRAXLER, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Charles D. DOUGLAS, a/k/a Chris Davis, Defendant-Appellant.
    No. 16-4615
    United States Court of Appeals, Fourth Circuit.
    Argued: January 24, 2017
    Decided: March 9, 2017
    Amended: March 9, 2017

      ARGUED: Lisa M. Lorish, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charlottesville, Virginia, for Appellant. Nancy Spodick Healey, OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia, for Appellee. ON BRIEF: Larry W. Shelton, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Roanoke, Virginia, for Appellant. John P. Fishwick, Jr., United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appel-lee.
    Before NIEMEYER, TRAXLER, and DIAZ, Circuit Judges.
   TRAXLER, Circuit Judge:

Defendant-Appellant Charles Douglas pled guilty to failure to register as a sex offender under the Sex Offender Registration and Notification Act (“SORNA”), in violation of 18 U.S.C. § 2250(a). He was sentenced to 15 months in prison, followed by five years of supervised release. On appeal, Douglas challenges the district court’s imposition as a special condition of supervised release that he undergo a sex-offender evaluation. For the reasons that follow, we affirm,

I.

Douglas was convicted in Virginia state court of aggravated sexual abuse in August 1994, arising out of the sexual abuse of [a minor] from January 1990 through February 1992, when his victim was between 10 and 12 years old. Douglas was in his early thirties at the time. He was sentenced to ten years in prison, suspended to one year, plus two years of supervised probation. Douglas participated in a sex-offender treatment program in 1995, while he was on state probation. As a result of this state conviction, Douglas was also required to register as a sex offender for life. Douglas was arrested for failure to register as a sex offender in Virginia in December 1999, but the charges were dropped in April 2000. He last registered as a sex. offender in October 2001, also in Virginia.

In 2002 and again in 2010, the Virginia State Police obtained arrest warrants for Douglas based on his failure to register as a sex offender. However, Douglas successfully evaded detection and arrest by assuming a false name and moving across state lines. He resided at various times in Washington, D.C., Kentucky, and Texas. In October 2015, the United States Marshals Service attempted to arrest Douglas in Kentucky when they became aware that he was residing there with an adult woman and using the alias “Chris Davis.” According to their interview of the woman, Douglas had no identification, no driver’s license, and no birth certificate during his time in Kentucky, and he avoided working for employers that required identification or paperwork. When Douglas learned that the Marshals had come to his home to arrest him, he fled to Texas, where he was finally located and arrested in February 2016. He was indicted in the Western District of Kentucky for failure to register as a sex offender in violation of 18 U.S.C. § 2250(a), but consented to a transfer of his case to the Western District of Virginia, where he pled guilty without a plea agreement.

A presentence report (“PSR”) was prepared setting forth a guideline imprisonment range of 15-21 months for the SOR-NA conviction, plus a statutorily required term of supervised release of not less than five years. In addition to the standard conditions of supervised release not challenged here, the PSR recommended that the court impose 16 special “Sex Offender Conditions” for supervised release provided for in Standing Order 2013-04 of the Western District of Virginia. Douglas objected to the imposition of 13 of the 16 conditions, arguing that his SORNA violation was not a sex offense and that his prior conviction for aggravated sexual assault in 1994 was too remote in time to justify the conditions.

The government agreed that Douglas’s prior sex offense conviction was remote in time, but it argued that most of the sex-offender conditions were justified because “the remoteness of the defendant’s sex offense is directly related to his efforts to avoid apprehension” and “there is no way to know whether the defendant poses a recidivism risk.” J.A. 18. At a minimum, the government requested that the district court require Douglas to. submit to a sex-offender evaluation for the purpose of evaluating his risk to the public and determining what, if any, other treatment or conditions were warranted to serve the goals of sentencing.

The district court agreed. Douglas was sentenced to 15 months’ imprisonment, plus five years of supervised release, with the special condition that he “submit to an evaluation by a qualified mental health professional, approved by the probation officer, who is experienced in the treatment of sexual offenders” and “take all medications reasonably related to his condition, complete all treatment recommendations, and abide by all rules, requirements, and conditions imposed by the treatment provider until discharged from treatment by the provider.” J.A. 39. However, the district court declined to impose the remaining 12 sex-offender conditions recommended by the PSR and objected to by Douglas, opting instead to add the proviso that the probation officer could “request modifications to the conditions of supervision as determined by the assessment of [the] qualified mental health professional.” J.A. 39.

II.

District courts are afforded “broad latitude to impose conditions on supervised release,” which we review for abuse of discretion only. United States v. Armel, 585 F.3d 182, 186 (4th Cir. 2009). The court may impose any special condition that is “reasonably related” to the statutory sentencing factors referenced in 18 U.S.C. § 3583(d)(1), which include: (1) “the nature and circumstances of the offense and the history and characteristics of the defendant,” 18 U.S.C. § 3553(a)(1); and (2) “the need for the sentence imposed ... to afford adequate- deterrence to criminal conduct,”. 18 U.S.C. § 3553(a)(2)(B), “to protect the public from further crimes of the defendant,” 18 U.S.C. § 3553(a)(2)(C), and “to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner,” 18 U.S.C. § 3553(a)(2)(D); see United States v. Dotson, 324 F.3d 256, 260 (4th Cir. 2003). When imposing such conditions, the sentencing court must also ensure that the condition “involves no greater deprivation of liberty than is reasonably necessary” to serve these sentencing goals, 18 U.S.C. § 3583(d)(2), and that it “is consistent with any pertinent policy statements issued by the Sentencing Commission,” 18 U.S.C. § 3583(d)(3); see Dotson, 324 F.3d at 260-61.

“Sex offender conditions of supervised release may be imposed, even at sentencing for crimes which' are not sex crimes, if supported by § 3583(d).” United States v. Bear, 769 F.3d 1221, 1226 (10th Cir. 2014). The “particular restriction does not require an offense-specific nexus, but the sentencing court must adequately explain its decision and its reasons for imposing it.” United States v. Worley, 685 F.3d 404, 407 (4th Cir. 2012) (internal citation and quotation' marks omitted). The “court must demonstrate that it considered the parties’ arguments and had a reasoned basis for exercising its own legal decision-making authority.” United States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010) (internal quotation marks omitted). The “statement of reasons is important because it helps the sentencing process evolve, allows for meaningful appellate review, and promotes the perception of fair sentencing.” Id. (internal citation, quotation marks and alterations omitted).

A.

Douglas first contends that the district court committed procedural error by failing to adequately explain the basis for the condition requiring him to submit to a sex-offender evaluation. We disagree.

The district court record contains the information necessary for us to conduct a meaningful appellate review of the substantive reasonableness of the special condition. See id.; Armel, 585 F.3d at 186. At the sentencing hearing, the district court explicitly considered the remoteness of Douglas’s prior sex offense, mindful that it should not “dwell” solely on the prior sex offense when evaluating whether the sex-offense conditions of supervised release were warranted. J.A. 49. However, the district court also shared the government’s concern about the 14-plus years of evasive actions that Douglas took to avoid apprehension by law enforcement after he failed to register as a sex offender. The district court then stated that it had “considered the factors noted in 18 U.S.C. [§ 38553(a): the defendant’s history, characteristics, and the nature and circumstances of the offense, as well as the defendant’s prior sex conviction,” and proceeded to address the sex offender-conditions recommended in the PSR. J.A. 60. In doing so, the district court explained that “the remoteness of [Douglas’s] conviction[] is such that the Court should not assume that all of these [recommended] conditions, after an assessment, be complied with,” and further noted that “otherwise, I think we would be going into punishing the defendant for the original offense rather than what he is here for today.” J.A. 62 (emphasis added). Having reviewed all of the relevant considerations, the district court decided to only impose the limited condition that Douglas submit to a sex-offender evaluation, explaining that “[t]he probation officer will [then] know what the provider determined,” J.A. 61-62, and “can look [for] guidance from the sex offender conditions” for further appropriate conditions. J.A. 62 (emphasis added). Accordingly, we are satisfied that the district court adequately considered the parties’ arguments and that the district court’s explanation, while brief, was sufficient to allow meaningful appellate review of the substantive reasonableness of the challenged condition.

B.

Douglas next contends that the district court abused its discretion in imposing the limited condition that he submit to a sex-offender evaluation, arguing that it is not reasonably related to the sentencing factors set forth in §§ 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D), and that it involves a greater deprivation of liberty than reasonably necessary in violation of § 3583(d)(2). Specifically, Douglas argues that his 1994 sex-offense conviction is too remote, standing alone, to justify the need for a sex-offender evaluation. As further support, Douglas points out that he completed a sex-abuse treatment program in 1995 (during his two years of supervised probation for his prior sex offense), and that his criminal record has been clean since then (with the exception of the 1999 arrest for failure to register and a 2002 arrest for driving while suspended).

As the district court recognized, “[p]rior sex offenses can be too temporally remote for sex-offender conditions of supervised release to be reasonably related to the nature and circumstances of the offense, the defendant’s history and characteristics, the deterrence of criminal conduct, the protection of the public from further crimes of the defendant, or the defendant’s educational,- vocational, medical or other correctional needs.” Bear, 769 F.3d at 1227. For example, we have held that a 12-year-old sex offense conviction, committed when the defendant was 21 years old, could not, “standing alone,” justify special sex-offender conditions. Worley, 685 F.3d at 409. However, “[t]here is no bright-line rule for the outer limit of temporal remoteness, in part because district courts must consider more than just the age of a defendant’s prior conviction.” Bear, 769 F.3d at 1227. That is precisely what the district court properly did in this case.

While Douglas is correct that his SOR-NA violation is not a “sex offense” for purposes of imposing a term of supervised release under the Guidelines, see U.S.S.G. § 5D1.2, cmt. n.1, a SORNA violation is not wholly unrelated to the prior sex offense. Indeed, the very purpose of SORNA is to “protect the community from the risks posed by convicted sex offenders by requiring registration and then by providing notification” to the public. United States v. Morales-Cruz, 712 F.3d 71, 75 (1st Cir. 2013); United States v. Under Seal, 709 F.3d 257, 260 (4th Cir. 2013) (SORNA “was enacted ‘to protect the public from sex offenders and offenders against children, and in response to the vicious attacks by violent predators,’ ” [by] “ ‘establishing] a comprehensive national system for the registration of those offenders.’ ”) (quoting 42 U.S.C. § 16901); see also Smith v. Doe, 538 U.S. 84, 99, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) (noting with respect to analogous requirements under Alaska law, that “[t]he purpose and the principal effect of notification are to inform the public for its own safety, not to humiliate the offender”). SORNA “ ‘ma[d]e more uniform what had remained a patchwork of federal and 50 individual state registration systems, with loopholes and deficiencies that had resulted in an estimated 100,000 sex offenders becoming missing or lost.’ ” Nichols v. United States, — U.S. —, 136 S.Ct. 1113, 1119, 194 L.Ed.2d 324 (2016) (internal quotation marks omitted). The “[r]egistration requirements. [that] SORNA imposes are justified by the high recidivism rate for offenders.” Morales-Cruz, 712 F.3d at 75; Smith, 538 U.S. at 105, 123 S.Ct. 1140 (“[Recidivism is the statutory concern”).

Here, the district court plainly did not ground ■ the challenged condition that Douglas submit to a sex-offender evaluation solely upon Douglas’s 1994 conviction. Rather, there are a number of other circumstances that weighed into and justified the district court’s decision to impose the limited condition that Douglas submit to the evaluation as a first step to determining what, if any, additional treatment and conditions were warranted.

Douglas’s prior sex offense involved the sexual assault of a prepubescent minor on multiple occasions over a two-year period — when Douglas was in his thirties and the child was between 10 and 12 years old. Although he completed a sex-offender treatment program in 1995, while he was on state probation, Douglas ceased com.plying with his registration requirements in 2001, within five years of completing his state probation term. He then took affirmative steps, including changing his name and moving regularly, to elude detection and arrest for over 14 years.

Consequently, Douglas did not merely fail to register under SORNA years after he had completed his sentence and treatment for his prior sex offense, and Douglas was not arrested within a short time after he violated his registration requirements. Instead, he “made a conscious choice to defeat th[e] purposes” of the sex-offender registration laws in several different jurisdictions for well over a decade. Morales-Cruz, 712 F.3d at 75. “These continuing failures certainly permit a rational inference that [Douglas] presented a recidivism risk and warranted deterrent punishment. His conduct undermined the efforts made by Congress in SORNA, and by the states in their statutes, to combat the risks of recidivism.” Id.; see also Bear, 769 F.3d at 1228 (noting that defendant’s “intervening sex offender registration conviction and current SORNA conviction, while fundamentally different than the underlying sex offenses, are not entirely unrelated and raise concerns that [defendant] may not comply with his ongoing SORNA obligations,” justifying “special conditions related to rehabilitation and monitoring”); cf. United States v. Springston, 650 F.3d 1153, 1157 (8th Cir. 2011) (noting that special conditions requiring sex-offender treatment might “be justified in a case involving failure to register as a sex offender” for a remote prior conviction, “such as when there is reason to believe that the failure to register evidences recalcitrance and an ongoing proclivity to commit. sexual crimes”), vacated on other grounds, 566 U.S. 931, 132 S.Ct. 1905, 182 L.Ed.2d 766 (2012).

We are also not persuaded by Douglas’s argument that the condition was not justified because his criminal record has been clean since his prior offense (with the exception of the 1999 arrest for failure to register and a 2002 arrest for driving while suspended), and that he only took steps to evade arrest during the ensuing 14 years to avoid paying $70,000 in child support, and not to victimize children in secret. Although there is nothing in the record to indicate that Douglas engaged in sexual offenses or inappropriate sexual behavior during the time that he was on the run, his arguments cannot be divorced from the fact that he was, in fact, on the run. He was taking affirmative steps to conceal his activities from law enforcement and simultaneously (and knowingly) violating state and federal registration laws, the very purpose of which are to alert the public to the presence of a convicted sex offender so as to deter sexually deviant and recidivist behavior and to prevent, particularly in the case of child sex offenders, offenses that often take place in secret. Cf. Morales-Cruz, 712 F.3d at 75 (holding that in light of defendant’s “manifest lack of respect for the SORNA registration requirements, and the reasonable inference that his refusal to comply with these requirements poses a risk of recidivism,, the district court’s imposition of sex-offender treatment was reasonably related to '[defendant’s] present offense as well as to his criminal history”).

Accordingly, we hold that the district court acted well within its broad discretion to impose the condition that Douglas submit to a sex-offender evaluation. The condition is reasonably related to the nature and circumstances of the offense and the history and characteristics of the defendant, including his prior sex offense and the extraordinary steps he took to avoid registration and apprehension by law enforcement for many years. The condition is also reasonably related to the need to protect the public from further crimes of the defendant, to provide the defendant with needed treatment in the most effective manner, and to afford adequate deterrence to criminal conduct in the future. Moreover, the district court’s approach of imposing the single condition that Douglas submit to a sex-offender evaluation, and declining to- impose additional conditions unless the evaluation were to indicate that they are warranted, reflects the district court’s measured judgment to impose conditions causing no greater a deprivation of liberty than was reasonably necessary to satisfy those factors.

III.

For the foregoing reasons, we hold that the sentence imposed by the district court is procedurally and substantively reasonable, and we affirm the judgment of the district court.

AFFIRMED.

      . The district court also imposed the three sex-offense conditions recommended by the PSR that Douglas did not challenge. Specifically, Douglas is required to comply with all federal, state, and local registration requirements; he is prohibited from possessing, viewing, or using any child pornography materials, or knowingly entering or remaining in any location where such materials are present; and he is required to obtain his probation officer’s approval of his residence and employment situation.

      . On appeal, Douglas complains about the invasiveness of a sex-offender evaluation, specifically its use of polygraphs and penile plethysmography testing. Although Douglas did not specifically raise this claim during the sentencing hearing, he did object collectively to the sex-offender evaluation condition and the separate condition that he submit to polygraph and plethysmograph examinations in his sentencing memorandum. The district court only imposed the former condition (the sex-offender evaluation), and it declined to impose the latter condition (pertaining to polygraphs and plethysmographs) pending the results of the evaluation. In any event, we have held that polygraphs and the plethysmo-graph' test are "useful for treatment of sex offenders,” and we have upheld the use of these tools as a condition of release. See United States v. Dotson, 324 F.3d 256, 260 (4th Cir. 2003) (internal quotation marks omitted). Accordingly, even assuming that the qualified mental health provider would include these examinations as a part of the initial sex-offender evaluation, it would not change our analysis of the reasonableness of the district court’s exercise of its discretion to impose the condition in light of all of the circumstances and the goals of sentencing.


source: Caselaw Access Project

author: DUNCAN, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Saundra Lucille WHITE, a/k/a Lucille Parrish-White, a/k/a L. Saundra White, a/k/a L. Saundra Parrish White, a/k/a Lucille S. White, a/k/a Lucille P. White, a/k/a Lucille Parrish, a/k/a Saundra L. Parrish, Defendant-Appellant.
    No. 16-4070
    United States Court of Appeals, Fourth Circuit.
    Argued: January 25, 2017
    Decided: March 9, 2017

      ARGUED: Alex Christian Gesch, GIBSON, DUNN & CRUTCHER LLP, Washington, D.C., for Appellant. James I. Pearce, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: James Wyda, Federal Public Defender, Baltimore, Maryland, Meghan S. Skelton, Appellate Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland; Mark A. Perry, GIBSON, DUNN & CRUTCHER LLP, Washington, D.C., for Appellant. Leslie R. Caldwell, Assistant Attorney General, Sung-Hee Suh, Deputy Assistant Attorney General, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, Sujit Raman, Chief of Appeals, Thomas P. Windom, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee-
    Before DUNCAN and KEENAN, Circuit Judges, and DAVIS, Senior Circuit Judge.
   DUNCAN, Circuit Judge:

Defendant-Appellant Saundra Lucille White (“White”) appeals her convictions for mail fraud, wire fraud, money laundering, and aggravated identity theft. White contends that she should have received a hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), to challenge the veracity of the affidavit supporting a search warrant authorizing a search of her residence. White also appeals the reasonableness of her sentence. For the reasons that follow, we affirm.

I.

A.

On December 26, 2009, Christal Millner suffered a severe stroke leaving her unable to walk, talk, or drive for the remainder of her life. Pamela Hiler, Millner’s cousin, took responsibility for Millner’s care. In March 2010, hospital staff advised Hiler to seek guardianship of Millner in order to make health care and other decisions on Millner’s behalf. Hiler, a counselor, reached out to White for assistance. White and Hiler had attended the same church for many years and Hiler recalled that White was an attorney. White graduated from Texas Southern University School of Law in 1983 and obtained a Master of Law in Taxation from Georgetown University in 1989. Hiler retained White on March 24, 2010 and received temporary and then permanent guardianship over Millner.

As part of the guardianship process, Hiler and White inventoried Millner’s assets. These included Millner’s condominium in Silver Spring, Maryland, a 1993 Volvo, and three Bank of America accounts totaling over $130,000. Millner also had access to her deceased mother’s assets, including bank accounts totaling $352,000, approximately $400,000 in savings bonds, and a house. Hiler set about trying to organize Millner’s personal affairs and gave White a key to Millner’s condo.

Almost immediately after Hiler retained White, White began a scheme to defraud Hiler and Millner. In April 2010, White impersonated Millner to apply for a duplicate license in Millner’s name at a Maryland Motor Vehicle Administration (“MVA”) location. White 'used Millner’s birth certifícate and forged Millner’s signature on the application. Because White did not look like the prior photographs of Millner in the MVA database, the MVA confiscated the license. Undeterred, White obtained a counterfeit university identification with White’s picture and Millner’s name.

In June 2010, White created a Maryland entity called Intel Realty Financial Services (“IRFS”). White opened a bank account for IRFS at Wachovia Bank, listing Millner as IRFS’s CEO, owner, and president. The registered address of the bank account was a P.O. Box that White had previously opened. Using the fake university identification and Millner’s vehicle registration, White then rented another P.O. Box in Millner’s name from UPS. White authorized Millner and IRFS to receive mail from the UPS box.

Shortly thereafter, Millner received the first of many tax deficiency notices. Because Millner was bedridden in a medical facility, Hiler routinely went to Millner’s condo to retrieve the mail. In June 2010, Hiler opened a letter addressed to Millner and Millner’s mother purportedly from the “IRS, Department of Treasury, Internal Revenue Service.” J.A. 1163.' The letter referred to an “Offer Compromised Agreement” between Millner and the IRS and requested remittance of $158,500 to IRFS. J.A. 1165. It warned that the office would “file an immediate lien on any and all of’ Millner’s assets unless the agency received “full 'and complete payment” by June 19, 2010. J.A. 1165. Hiler asked White, her attorney, to call the number on the notice to ascertain whether it was legitimate and to confirm that Millner actually owed the money. After assuring Hiler that she had looked into the matter and Millner did owe the money, White told Hiler to send the checks on Millner’s behalf. Hiler purchased cashier’s checks drawn on Millner’s account and sent them to IRFS. From June 2010 until early 2013, Millner continued to receive similar tax notices and Hiler continued to send IRFS money from Mill-ner’s accounts. Even after Millner died in January 2011, the tax notices continued.

By the end of 2012, the IRFS payments had depleted Millner’s assets. Hiler then received a notice addressed to her stating that she, as Millner’s personal representative, was responsible for paying the taxes. In addition, Hiler received a voicemail from an unidentified caller purporting to be “an official collector for” the IRS and the “State of Maryland Department of Revenue.” J.A. 2354. The caller instructed Hiler or her attorney to contact the office that day and left a return number. When Hiler consulted White as to these notices, White confirmed that Hiler was responsible for paying the taxes and advised that she borrow money to do so. Having sent IRFS approximately $800,000 at this point, Hiler became suspicious. She consulted another attorney, Craig Ellis, who told Hiler that the notices were “absolutely crazy” because an estate representative generally is not liable for the debts of the estate. J.A. 1360. Ellis, now also suspicious, did a quick internet search of White. He found out that, unbeknown to Hiler, White had been disbarred in Washington, D.C. and Maryland since 2011 and was not currently licensed to practice law.

B.

Ellis contacted the Fraud Section of the Anne Arundel County, Maryland Police Department, which sparked a state and federal investigation of White’s conduct. Law enforcement learned that after Hiler wrote checks to IRFS, White deposited the checks into the IRFS bank account. White then forged Millner’s names on checks out of the IRFS account to herself, her daughter, trust fund accounts, to purchase vehicles, and to renovate property White owned.

On May 15, 2013, John Davids, Special Agent with the United States Treasury Inspector General for Tax Administration, submitted a sworn affidavit in support of an application for a search and seizure warrant for White’s office and residence. The affidavit described White’s scheme, including. the fraudulent tax notices, the IRFS P.O. Box and bank account opened by someone claiming to be Millner, ATM photographs of White making deposits and withdrawals into the IRFS bank account, and the forged checks from the IRFS account. As to probable cause, Davids relied on his interview with Hiler and his twenty-five years of experience as a Special Agent. According to Davids, Hiler met White at White’s office “for meetings that were directly related to this scheme.” J.A. 32. Davids also attested that Hiler told him she “has been present at White’s home and had discussions related to this scheme there.” J.A. 32. A magistrate judge issued the search warrant, which agents executed on May 17, 2013.

The search uncovered a bevy of incriminating evidence, including debit cards for the IRFS bank account, an envelope on which White had been practicing Millner’s signature, draft notices to Millner with the IRS seal cut and pasted onto them, mail from the IRFS P.O. Box, the counterfeit university identification card, and several of the cashier’s checks Hiler had sent to IRFS. Agents also found carbon copies of forged checks from the IRFS account to White, White’s daughter, White’s family trust, car dealerships for cars White purchased, and a contractor for construction work on White’s property.

C.

On September 15, 2014, a superseding indictment charged White with three counts of mail fraud in violation of 18 U.S.C. § 1341; one count of wire fraud in violation of 18 U.S.C. § 1343; two counts of money laundering in violation of 18 U.S.C. §§ 1956(a), 1957; and one count of aggravated identity theft in violation of 18 U.S.C. § 1028A. White pleaded not guilty, and the district court released her pending trial. On October 14, 2014, the government filed a motion seeking White’s pretrial detention, alleging that White violated the terms of her pretrial release by defrauding another victim and opening another bank account without prior approval. Accordingly, the court ordered White detained pending trial, which began in July 2015.

Hiler was the government’s first witness. On cross-examination, Hiler testified that she did not have “any formal business meetings” at White’s home and only went to White’s home on “social occasions.” J.A. 1315. White immediately requested a Franks hearing, arguing that the primary bases for the warrant were Hiler’s statements to Davids that she had been to White’s home and discussed business— specifically Millner' — -with White at White’s home. On redirect, Hiler clarified that she did not recall “having a full detailed conversation” with White about Millner at White’s home but that she may have communicated with White “in passing” about Millner’s health. J.A. 1341. Hiler also reiterated that she knew White had a home office but had never been inside of it. After excusing Hiler and the jury, the district court heard arguments and determined that White was not entitled to a Franks hearing.

The jury convicted White on all seven counts. At sentencing, the district court applied several sentencing enhancements, two of which are at issue here. Over White’s objection, the district court added a two-level enhancement for misrepresentation of a government agency pursuant to U.S.S.G. § 2B1.1(b)(9)(A) and an additional two-level enhancement for sophisticated means under § 2Bl.l(b)(10)(C). The district court, also denied White’s request for a downward departure based on her psychologist Dr. Michael Hendricks’s diagnosis of [Redacted]. Upon the government’s motion, the district court ordered Dr. Neil Blumberg to conduct a psychiatric examination of White. Dr. Blumberg’s report contradicted Dr. Hendricks’s conclusion, finding that the [Redacted] diagnosis was “questionable at best” because the [Redacted] examination was self-reported and had no built-in validity scales. J.A. 2607. Further, Dr. Blumberg’s own examination revealed “[Redacted].” J.A. 2608.

At sentencing, the district court weighed the competing expert reports and found Dr. Blumberg’s analysis more compelling. The district court calculated White’s Guidelines range for Counts 1 to 6 as 87 to 108 months and sentenced White to 108 months. Count 7 carried a mandatory consecutive 24-month sentence, making White’s total sentence 132 months. White timely appealed the district court’s denial of a Franks hearing and her sentence.

II.

White argues that she was entitled to a Franks hearing because Hiler’s testimony called into question the validity of the warrant. The government argues that White waived this argument by not making the request before trial and, even if the argument is not waived, White does not meet the standard for a Franks hearing. ‘We assess de novo the legal determinations underlying a district court’s suppression rulings, including the denial of a Franks hearing, and we review the court’s factual findings relating to such rulings for clear error.” United States v. Allen, 631 F.3d 164, 171 (4th Cir. 2011).

A.

In Franks v. Delaware, the Supreme Court carved out a narrow exception to the general rule prohibiting a defendant from attacking a facially valid affidavit. 438 U.S. at 171, 98 S.Ct. 2674. Although we typically describe the Franks test as two-pronged, it actually has three parts. To obtain a Franks hearing, a defendant must make a “substantial preliminary showing” that the af-fiant made (1) a false statement (2) “knowingly and intentionally, or with reckless disregard for the truth” that was (3) “necessary to the finding of probable cause.” Id. at 155-56, 98 S.Ct. 2674.

Before turning to the substance of White’s claim, we must first address the government’s threshold argument that White failed to preserve her Franks hearing challenge because she did not make the request prior to trial. Federal Rule of Criminal Procedure 12(b) requires defendants to make suppression requests, like a Franks hearing, before trial “if the basis for the motion is then reasonably available.” Fed. R. Crim. P. 12(b)(3). The basis for White’s Franks hearing request was Hiler’s testimony, which White believes contradicted statements in the affidavit. Because that information was not “reasonably available” before trial, id. White did not waive her right to request a Franks hearing.

Nevertheless, White’s Franks claim fails on the merits because she did not make a substantial showing that Agent Davids knowingly, intentionally or with reckless disregard made a false statement in the affidavit. The affidavit stated that Hiler had been to White’s home, “discussed this case with her there and knows her to maintain a home office at that location.” J.A. 31. At trial, White’s counsel asked Hiler a series of questions on cross-examination regarding her interactions at White’s home.

Q: We were talking about the times when you’ve been to her house. They were social occasions?
A: Yes.
Q: Or holiday occasions, right? These weren’t times where you talked business?
A: No.
Q: You didn’t have any formal business meetings at Ms. White’s house?
A: No.
Q: So you never claimed to Agent Davids that you discussed business at Ms. White’s house?
A: No.

J.A. 1314-15. Based on those answers, White immediately requested a Franks hearing. The district court first allowed Hiler to finish her testimony. On redirect, Hiler clarified that she had seen White’s home office before, though she had never been inside of the room. The government also asked Hiler whether she had ever discussed Millner with White at her home. Hiler responded that she did not “recall ... having a full detailed conversation” with White about Millner but they may have discussed Millner’s healthcare “in passing” at White’s home. J.A. 1341.

Outside of the presence of the witness and the jury, the district court heard arguments and found that Hiler’s statements did not satisfy the requisite showing for a Franks hearing because “at best” Hiler’s testimony evinced “inconsistent versions with varying degrees of certainty ... about communications that occurred” over two years prior. J.A. 1517. Moreover, the affidavit also cited Agent Davids’s “training and experience that persons operating fraudulent schemes ... often transport ] and store[ ] evidence, fruits and instrumen-talities of the crime from the office to the home and vice versa.” J.A. 31-32. Agent Davids attested to his knowledge “from training and experience that in this modern technological environment, many times the line between office, home and vehicle is often blurred because of technology that allows persons to be mobile in their endeavors.” J.A. 32. Therefore, even without Hiler’s statements, the district court concluded that probable cause existed for the .search warrant of White’s home.

B.

The district court did not err in finding that White failed to make the requisite showing for a Franks hearing. First, White cannot point to a false statement. Hiler’s trial testimony did not contradict Agent Davids’s assertions that (1) Hiler discussed Millner with White at her home and (2) Hiler knew White had a home office from which she conducted business. Hiler’s acknowledgment on redirect that she had conversations regarding Millner with White at White’s home — no matter how fleeting — comport with Agent Davids’s statements in the affidavit.

Second, White cannot establish the requisite scienter under Franks. Because the Franks test is from the perspective of the affiant, White must show that Agent Davids “knowingly and intentionally, or with reckless disregard for the truth” included those statements in his affidavit. Franks, 438 U.S. at 155, 98 S.Ct. 2674. White asserts Agent Davids attributed statements to Hiler that she did not make, which is unlikely to have been an innocent mistake. However, a defendant’s showing for a Franks hearing “must be more than eonclusory.” Id. at 171, 98 S.Ct. 2674. White did not offer any proof showing that Agent Davids intentionally or recklessly included a false statement in the affidavit. Therefore, the district court did not err in denying White & Franks hearing.

III.

We now turn to White’s challenges to the reasonableness of her sentence. White argues that the district court erred in applying (1) a two-level enhancement for misrepresenting a government agency and (2) a two-level enhancement for sophisticated means. White also contends that the district court should have reduced her sentence based on her [Redacted] diagnosis. We discuss each argument in turn.

A.

When reviewing a criminal sentence, we first ensure that the district court did not commit significant procedural error, such as incorrectly calculating the Guidelines range. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). We review the district court’s factual findings for clear error and legal conclusions de novo. United States v. Strieper, 666 F.3d 288, 292 (4th Cir. 2012). If there is no procedural error, we review the substantive reasonableness of a sentence for abuse of discretion. Gall, 552 U.S. at 51, 128 S.Ct. 586. A within-Guidelines range sentence is presumptively reasonable. United States v. Susi, 674 F.3d 278, 289 (4th Cir. 2012).

B.

1.

The Sentencing Guidelines allow a district court to enhance a sentence by two levels when a fraud “involved a misrepresentation that the defendant was acting on behalf of ... a government agency.” U.S.S.G. § 2Bl.l(b)(9)(A) (2014). The district court applied this enhancement to White based on two pieces of evidence: (1) the fraudulent tax statements White created that induced Hiler to remit money and (2) the voicemail in which an unidentified person claimed to be an official tax collector for the U.S. Department of Treasury and the State of Maryland. The voicemail demanded payment for taxes and left a number that was later associated with White. White challenges both pieces of evidence.

White argues that the notices cannot trigger the enhancement because White did not sign her name to them or otherwise directly state that she was acting on behalf of a government taxing authority. For support, White points to the application notes for § 2B1.1 (b)(9)(A), which provide three examples of when the enhancement should apply. Id. § 2B1.1 cmt. 8(B). White argues that these examples show that the Sentencing Commission intended the .enhancement to apply only when a defendant directly and verbally misrepresents that she is acting on behalf of a government agency.

White’s claim lacks merit for two reasons. First, while commentary to the Sentencing Guidelines is authoritative, we only turn to the commentary when the implicated Guideline is ambiguous. United States v. Ashford, 718 F.3d 377, 382 (4th Cir. 2013). Here, the Sentencing Commission was clear — the enhancement encompasses any fraud that “involved a misrepresentation.” § 2Bl.l(b)(9)(A). The Commission’s use of the passive voice forecloses White’s argument that the defendant must make a direct misrepresentation. Second, even if we consider the application note’s illustrations, they do not explicitly require a direct misrepresentation. The first example involves a “defendant who solicited contributions for a non-existent famine relief organization.” § 2B1.1 cmt. 8(B)(i). This example does not specify how the defendant solicited money and White’s behavior here is analogous: she solicited tax payments through the fraudulent IRS notices and thereby misrepresented a government agency.

White’s challenge to the voicemail is equally unavailing. White argues that the voicemail cannot be attributed to her because the caller is unidentified. However, whether White is the actual person on the phone is irrelevant because the Guidelines apply to all conduct “commanded, induced, procured, or willfully caused by the defendant.” § lB1.3(a)(l)(A). The return phone number for the voicemail was a number White activated shortly after beginning the scheme, appeared on the fraudulent tax notices, and was connected to numerous documents in White’s home. The district court did not commit clear error in finding that either White (in a disguised voice) or someone at White’s direction made the phone call. Therefore, we affirm the district court’s application of a two-level enhancement for misrepresentation of a government agency.

2.

The Guidelines also provide for a two-level sophisticated-means enhancement when a fraud involves “especially complex- or especially intricate offense conduct pertaining to the execution or concealment of an offense.” § 2B1.1 cmt. 9(B). “Conduct such as hiding assets or transactions, or both, through the use of fictitious entities ... also ordinarily indicates sophisticated means.” Id. Whether a defendant’s conduct involved sophisticated means is a factual inquiry that we review for clear error. United States v. Adepoju, 756 F.3d 250, 256 (4th Cir. 2014). The sophisticated-means enhancement “applies where the entirety of a scheme constitutes sophisticated means, even if every individual action is not sophisticated.” Id. at 257.

The elaborate elements of White’s scheme belie her attempt to downplay her conduct as common-place fraud. White took advantage of her relationship with a church member, Hiler, to scam approximately $800,000 from Hiler and Hiler’s incapacitated and deceased family members. The calculated scheme involved several levels of fraud and spanned almost three years. To effectuate her fraud White impersonated Millner to obtain a duplicate license and counterfeit university ID. She created the fictitious entity IRFS and opened bank accounts and a P.O. Box for the entity in Millner’s name. She created fraudulent IRS notices directing Hiler to pay taxes on behalf of her bedridden cousin to IRFS. White then advised Hiler, her client, to pay IRFS. White forged Millner’s signature on IRFS checks to use the money in the IRFS account for herself and her daughter. Looking at the totality of the case, the district court found the evidence “sufficiently great to take this out of the mindrun [sic] of a wire fraud ... and mail fraud case.” J.A. 2373. We agree. On appeal, White contends that the sophisticated-means enhancement is inappropriate “because of the clumsy execution of several aspects” of the scheme. Appellant’s Br. at 58. But “sophisticated” under the Guidelines refers to the “especially complex or especially intricate” planning involved in a fraud, § 2B1.1 cmt. 9(B), not the skill with which a scheme is executed. The district court did not clearly err in applying a two-level enhancement for sophisticated means.

C.

Finally, turning to the substantive reasonableness of White’s sentence, we must consider whether, looking at the totality of the circumstances, the district court abused its discretion in sentencing White to 108 months for Counts 1 to 6, which was the top end of the Guidelines range. A district court is not required to “robotically tick through” every § 3553(a) factor but it must make an individualized assessment of the § 3553(a) factors tailored to the defendant. United States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006). White alleges that the district court failed to properly consider “the nature and circumstances of the offense and the history and characteristics of the defendant” as required under 18 U.S.C. § 3553(a)(1). Specifically, White believes her sentence should have been reduced based on her [Redacted] diagnosis.

At sentencing, the district court was faced with two competing expert reports. Post-conviction, White’s expert Dr. Hendricks updated his initial evaluation of White, concluding she suffered from the more severe [Redacted]. J.A. 2541. Dr. Hendricks made this new diagnosis based on conversations he had with White’s Mends and family after her conviction. In Dr. Hendricks’s opinion, White’s [Redacted] “rendered her unable to appreciate the nature and quality of her actions or to appreciate the wrongfulness of her actions.” J.A. 2537. Dr. Blumberg, the court-appointed psychologist, came to a-different conclusion. Dr. Blumberg’s report cast doubt on Dr. Hendricks’s diagnosis because White’s tests indicated “[Redacted].” J.A. 2608. Further, Dr. Blumberg noted that the test Dr. Hendricks administered to diagnose WTiite with [Redacted] does not have a built-in validity scale. Therefore, “[Redacted].” J.A. 2607. Based on White’s [Redacted], Dr. Blumberg opined that Dr. Hendricks’s results were “[Redacted].” J.A. 2607. The district court evaluated both reports and discussed them at length in the sentencing hearing. Ultimately, the district court credited Dr. Blum-berg’s report and found that facts and data did not sufficiently support Dr. Hendricks’s belated diagnosis and that his methodology was not reliable. The district court amply explained its reasons for crediting Dr. Blumberg’s report and did not abuse its discretion in so doing. Therefore, White has failed to rebut her presumptively reasonable sentence.

IV.

For the reasons stated above, the judgment of the district court is

AFFIRMED.

      . Maryland’s tax authority is the Office of the Comptroller of Maryland, not the Department of Revenue.

      . Because we conclude that White did not show that Agent Davids recklessly included a false statement in the affidavit, we need not address whether the challenged statements were necessary for the magistrate judge to find probable cause.

      . White argues that we rejected the sophisticated-means enhancement based on similar facts in Adepoju, 756 F.3d at 250. In Adepoju, the defendant created counterfeit identification documents and used them to open bank accounts and deposit fraudulent checks. Contrary to White’s contention, we did not hold in Adepoju that the scheme did not warrant a sophisticated-means enhancement. Rather, we held that the facts did not "affirmatively demonstrate” sophisticated-means evidence and the district court clearly erred by shifting to the defendant the burden to "disprove sophistication.” Id. at 257 (emphasis added). The government in Adepoju had only carried its burden of proof as to the defendant’s use of forged checks and a stolen identity to attempt bank fraud, which was not enough to place the scheme beyond the "forgeries, misrepresentation, and concealment inherent in bank fraud.” Id. The facts here show more than simple “unauthorized acquisition and use of another’s information.” Id. In addition to impersonating Millner, White also created a fictitious entity, opened multiple bank accounts and P.O. Boxes, and created the fraudulent tax notices. The district court did not clearly err in finding that those facts, which the government proved beyond a preponderance of the evidence, separated White’s offense "from the ordinary or generic.” United States v. Jinwright, 683 F.3d 471, 486 (4th Cir. 2012).

      . Because Count 7 carried a mandatory 24-month consecutive sentence, the district court only had discretion as to the sentence for Counts 1 to 6.

      . Prior to trial, Dr. Hendricks submitted an initial evaluation. He administered the [Redacted] ("[Redacted]”) to White, which "is used in making a clinical diagnosis when there is a question of whether the individual meets the diagnostic criteria for [Redacted].” J.A. 2530. At that time. Dr. Hendricks concluded that White suffered from "[Redacted]” ("[Redacted]”). J.A. 2533.


author: BARBARA MILANO KEENAN, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Robert McKinley WINSTON, Defendant-Appellant.
    No. 16-7252
    United States Court of Appeals, Fourth Circuit.
    Argued: October 27, 2016
    Decided: March 13, 2017

      ARGUED: Lisa M. Lorish, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charlottesville, Virginia, for Appellant. Jean Barrett Hudson, OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia, for Appel-lee. ON BRIEF: Larry W. Shelton, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Roanoke, Virginia, for Appellant. John P. Fishwiek, Jr., United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appel-lee.
    Before SHEDD and KEENAN, Circuit Judges, and DAVIS, Senior Circuit Judge.
   BARBARA MILANO KEENAN, Circuit Judge:

Robert Winston was convicted in 2002 on a federal firearm charge and was sentenced to serve a term of 275 months’ imprisonment. His sentence included an enhancement under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1), based in part on his prior conviction for the Virginia crime of common law robbery (Virginia common law robbery) as a qualifying predicate “violent felony.” Winston filed a motion under 28 U.S.C. § 2255 for post-conviction relief, contending that his robbery conviction no longer qualified as a predicate offense under the ACCA after the Supreme Court’s decision in Johnson v. United States, — U.S.—, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) (Johnson II), which invalidated a portion of the ACCA’s definition of “violent felony.”

The district court denied Winston’s motion, concluding that Virginia common law robbery continues to qualify as a violent felony because the crime has as an element the “use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). The court also rejected the government’s argument that Winston was barred from obtaining post-conviction relief on procedural grounds.

Upon our review, we agree with the district court’s rejection of the government’s procedural arguments, because Winston sufficiently has shown that he relied on a new rule of constitutional law. However, we disagree with the district court’s substantive conclusion and hold that Winston’s conviction for Virginia common law robbery does not constitute a violent felony under the ACCA, because the full range of conduct covered by the Virginia crime does not necessarily include the use of “force capable of causing physical pain or injury to another person.” See Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) (,Johnson I)- We therefore vacate the judgment of the district court, and remand the case for further proceedings.

I.

In 2002, Winston was' convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). In determining Winston’s sentence, the district court concluded that Winston qualified as an armed career criminal under the ACCA, 18 U.S.C. § 924(e), which mandates a fifteen-year minimum sentence ' for defendants convicted of a firearm offense who have three or more prior convictions for violent felonies or serious drug offenses. Without these predicate convictions, Winston would not have qualified as an armed career criminal and would have been subject to a ten-year maximum sentence. See 18 U.S.C. 924(a)(2).

The ACC A defines the term “violent felony” as any crime punishable by a term of imprisonment exceeding one year that:

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another (the force clause); or
(ii) is burglary, arson, or extortion, involves use of explosives (enumerated crimes clause), or otherwise involves conduct that presents a serious potential risk of physical injury to another (residual clause).

Id. § 924(e)(2)(B) (naming conventions added). Winston’s relevant prior convictions, as set forth by the probation officer in Winston’s presentence report, included (1) rape in violation of the Uniform Code of Military Justice (UCMJ), (2) robbery in violation of Virginia law, (3) possession of cocaine with the intent to distribute in violation of Virginia law, and (4) distribution of cocaine base in violation of federal law. Based on these convictions, the probation officer recommended that the court sentence Winston as an armed career criminal, with a guideline range of between 210 and 262 months in prison.

Winston challenged his armed career criminal designation, but the district court overruled Winston’s objection. The court adopted the recommendations in the pre-sentence report, and departed upward from the guideline range to impose a sentence of 275 months’ imprisonment. In 2003, this Court affirmed Winston’s conviction and sentence. United States v. Winston, 68 Fed.Appx. 412 (4th Cir. 2003) (unpublished).

On June 26, 2015, the Supreme Court in Johnson II held that the ACCA’s residual clause is unconstitutionally vague, in violation of the Due Process Clause of the Fifth Amendment. 135 S.Ct. at 2555-57. The Court held that the residual clause did not articulate clearly how to evaluate the risks of injury posed by a crime, depriving defendants of fair notice regarding their potential sentence and inviting “arbitrary enforcement by judges.” Id. at 2557. The Court further clarified that even though the residual clause is void, the force clause and the enumerated crimes clause remained valid as defining the scope of a predicate violent felony. Id. at 2563. The Supreme Court later held that its decision in Johnson II had announced a new substantive rule of constitutional law that applies retroactively to cases on collateral review. Welch v. United States, — U.S. —, 136 S.Ct. 1257, 1264-65, 194 L.Ed.2d 387 (2016) (applying the framework in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), for determining whether a new rule applies on collateral review).

Relying on Johnson II-, Winston filed a motion under 28 U.S.C. § 2255 asking the district court to vacate his ACCA-en-hanced sentence and to order his immediate release from incarceration, because he already had served more than the 10-year maximum sentence otherwise applicable to his conviction. Winston asserted that his prior convictions of rape under the UCMJ and Virginia common law robbery, which both qualified as violent felonies under the now-void residual clause, do not otherwise qualify as predicate offenses under the ACCA’s force clause.

The government disagreed with Winston’s substantive argument, but also requested that the district court dismiss Winston’s § 2255 motion on procedural grounds. The government asserted that because Winston failed to show that the sentencing court relied exclusively on the now-void residual clause in sentencing him under the ACCA, he was not entitled to post-conviction relief.

The district court first rejected the government’s procedural argument, concluding that the merits of Winston’s claim “should be decided.” With respect to the substantive claim, the court determined that Virginia common law robbery qualifies as a violent felony under the ACCA force clause, because the offense “has as an element the use, attempted use, or threatened use of physical force against the person of another.” The court therefore held that Winston properly was sentenced as an armed career criminal because he had at least three predicate offenses, namely, the violent felony of Virginia common law robbery and two undisputed serious drug offenses. Accordingly, the district court did not address whether Winston’s rape conviction continued to qualify as a violent felony.

One week after the district court entered its judgment, we issued our decision in United, States v. Gardner, 823 F.3d 793 (4th Cir. 2016), and held that the North Carolina crime of common law robbery (North Carolina common law robbery) does not qualify as a violent felony. In light of our decision in Gardner, the district court reconsidered its decision but did not alter its conclusion that Virginia common law robbery qualifies as a violent felony for purposes of the ACCA enhaneement. The district court nevertheless issued Winston a certificate of appealability to this Court in accordance with 28 U.S.C. § 2253(c), because “reasonable jurists could debate” the “constitutionality of [Winston’s] ACCA-enhanced sentence.” See Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).

After Winston filed his appellate brief in this Court, the .parties discovered that Winston previously had filed a motion for relief under 28 U.S.C. § 2255 and that, therefore, the district court had lacked jurisdiction to consider Winston’s successive § 2255 motion without authorization from this Court under 28 U.S.C. § 2255(h). Upon Winston’s motion, we dismissed his appeal, construed his notice of appeal as a request to file a successive § 2255 motion, and granted that request. See In re Hubbard, 825 F.3d 225, 229 (4th Cir. 2016) (citing 28 U.S.C. §§ 2255(h) and 2244(b)(3)(C), and explaining that a petitioner may gain permission to file a successive § 2255 motion by making' a prima facie showing that he presents a claim relying on a new rule of constitutional law).

Accordingly, Winston filed a successive § 2255 motion in the district court. The court adopted its prior decision and once again issued a certificate of appealability. Winston timely filed this appeal.

II.

A.

We first address the government’s contention that the district .court should have dismissed Winston’s appeal on procedural grounds. The government contends that post-conviction relief under 28 U.S.C. § 2255 is unavailable to Winston because he does not rely on a new rule of constitutional law, as required by 28 U.S.C. §§ 2244(b)(4) and 2244(b)(2)(A). According to the government, because the record does not establish that the sentencing court relied on the residual clause to conclude that the Virginia common law robbery conviction qualified as a violent felony, Winston is barred from claiming reliance on the Court’s holding in Johnson II that the residual clause is unconstitutional. We disagree with the government’s position.

Under 28 U.S.C. § 2244(b)(4), a district court “shall dismiss any claim presented in a second or successive application that the court of appeals has authorized to be filed unless the applicant shows that the claim satisfies the requirements” elsewhere found in § 2244. Under 28 U.S.C. § 2244(b)(2)(A), a movant must show that his claim “relies on a new rule of constitutional law, made retroactive to eases on collateral review by the Supreme Court, that was previously unavailable.” See Hubbard, 825 F.3d at 229 n.1 (explaining that even'though a motion is filed under 28 U.S.C. § 2255, “that provision incorporates by reference the factors listed in [28 U.S.C.] § 2244”).

We agree with the district court’s conclusion that Winston’s claim for post-conviction relief “relied on,” at least in part, the new rule of constitutional law announced in Johnson II. Although the record does not establish that the residual clause served as the basis for concluding that Winston’s prior convictions for rape and robbery qualified as violent felonies, “[n]othing in the law requires a [court] to specify which clause ... it relied upon in imposing a sentence.” In re Chance, 831 F.3d 1335, 1340 (11th Cir. 2016). We will not penalize a movant for a court’s discretionary choice not to specify under which clause of Section 924(e)(2)(B) an offense qualified as a violent felony. Thus, imposing the burden on movants urged by the government in the present case would result in “selective application” of the new rule of constitutional law announced in Johnson II, violating “the principle of treating similarly situated defendants the same.” Id. at 1341 (quoting Teague, 489 U.S. at 304, 109 S.Ct. 1060).

We therefore hold that when an inmate’s sentence may have been predicated on application of the now-void residual clause and, therefore, may be an unlawful sentence under the holding in Johnson II, the inmate has shown that he “relies on” a new rule of constitutional law within the meaning of 28 U.S.C. § 2244(b)(2)(A). This is true regardless of any non-essential conclusions a court may or may not have articulated on the record in determining the defendant’s sentence. Chance, 831 F.3d at 1340.

B.

We now turn to consider the merits of Winston’s appeal. He contends that the district court erred in concluding that Virginia common law robbery qualifies as a violent felony under the ACCA’s force clause. Winston argues that because the crime can be committed by taking property from a person by a degree of force that includes only “slight force,” or by means of intimidation that does not require a threat to use physical force, Virginia common law robbery does not have as an element “the use, attempted use, or threatened use of physical force against the person of another.” See 18 U.S.C. § 924(e)(2)(B)(i). In support of his argument, Winston cites as persuasive authority our recent decision in United States v. Gardner, 823 F.3d 793, 803-04 (4th Cir. 2016), in which we held that North Carolina common law robbery, which can be committed either by violence or by instilling fear in the victim, was not a. violent felony under the ACCA’s force clause.

In response, the government asserts that we are bound by our prior decision in United States v. Presley, 52 F.3d 64, 69 (4th Cir. 1995), in which we held over twenty years ago that Virginia common, law robbery qualifies as a violent felony under the ACCA’s force clause. Alternatively, the government maintains that even if Presley no longer is binding precedent, the crime of Virginia common law robbery requires that a defendant use enough force to overcome the resistance of the victim. According to the government, such level of force necessarily satisfies the force clause, thereby qualifying Virginia robbery as a violent felony for purposes of the ACCA. We disagree with the government’s arguments.

We review de novo the question whether a defendant’s prior conviction qualifies as a predicate felony under the ACCA. See Gardner, 823 F.3d at 801. This inquiry typically requires application of the categorical approach described by the Supreme Court in Descamps v. United States, — U.S.—, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). See Gardner, 823 F.3d at 802. Under this approach, we determine whether a particular state crime has as an element the “use, attempted use, or threatened use of physical force against the person of another.” Id. at 803 (citing 18 U.S.C. § 924(e)(2)(B)®).

Virginia common law robbery is defined under the common law as the “taking, with intent to steal, of the personal property of another, from his person or in his presence, against his will, by violence or intimidation.” Pierce v. Commonwealth, 205 Va. 528, 138 S.E.2d 28, 31 (1964). In our decision in Presley, employing the categorical approach, we concluded that Virginia common law robbery qualified as a violent felony predicate under the force clause of the ACCA. Presley, 52 F.3d at 69; see United States v. McQueen, 445 F.3d 757, 762 (4th Cir. 2006) (citing Presley). That holding, however, is no longer binding because it has been undermined by later Supreme Court precedent. See United States v. Williams, 155 F.3d 418, 421 (4th Cir. 1998) (explaining that a panel decision is not binding when the holding is “clearly undermined by [] more recent Supreme Court decisions”).

The Supreme Court issued its opinion in Johnson I, fifteen years after we decided Presley. The Court held that a Florida statute prohibiting battery, which was satisfied “by any intentional physical contact, no matter how slight,” did not qualify under the force clause as having “as an element the use ... of physical force against the person of another.” 559 U.S. at 136-38, 130 S.Ct. 1265 (emphasis, internal quotation marks, and citation omitted). In reaching this conclusion, the Court defined “physical force” as “violent force ... capable of causing physical pain or injury to another’ person.” Id. at 140, 130 S.Ct. 1265 (emphasis omitted).

The Supreme Court’s holding in Johnson I settled competing views of federal courts regarding the amount of force required to qualify as the use or threatened use of “physical force” under the ACCA’s force clause. See generally United States v. White, 606 F.3d 144, 149-51 (4th Cir. 2010) (collecting cases). Indeed, after Johnson I, certain crimes that courts previously had determined were violent felonies no longer met the newly defined requirements of the force clause as felonies necessarily entailing the use of “violent force” capable of causing pain or injury. Compare Gardner, 823 F.3d at 797 (North Carolina robbery is not a violent felony), with United States v. Hutchinson, 149 Fed.Appx. 214, 216 (4th Cir. 2005) (North Carolina robbery is a violent felony); see also United States v. Eason, 829 F.3d 633, 641-42 (8th Cir. 2016) (explaining that after Johnson I Arkansas robbery does not qualify as a violent felony under the force clause, contrary to the court’s prior conclusion).

Additionally, in Johnson I, the Supreme Court made clear that a federal court applying the categorical approach to a state offense is bound by the interpretation of such offense articulated by that state’s courts. 559 U.S. at 138, 130 S.Ct. 1265; United States v. Aparicio-Soria, 740 F.3d 152, 154-55 (4th Cir. 2014) (en banc) (citing Johnson I); United States v. Holloway, 630 F.3d 252, 259-60 (1st Cir. 2011) (explaining that the court’s prior decision failed to defer to the state courts’ interpretation of Massachusetts battery in accordance with Johnson J). Supreme Court decisions issued after Presley also have instructed that we must focus on the “minimum conduct criminalized” by state law, including any conduct giving rise to a “realistic probability, not a theoretical possibility” that a state would apply the law and uphold a conviction based on such conduct. Moncrieffe v. Holder, — U.S. —, 133 S.Ct. 1678, 1684-85, 185 L.Ed.2d 727 (2013) (citing Gonzales v. Duenas-Alvarez, 549 U.S. 183, 194, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007)); see United States v. Doctor, 842 F.3d 306, 308 (4th Cir. 2016). Thus, in the present case, our consideration of minimum culpable conduct is informed by decisions of the Supreme Court of Virginia, with decisions of Virginia’s .intermediate appellate court constituting “the next best indicia of what state law is.” See Gardner, 823 F.3d at 803 (quoting Castillo v. Holder, 776 F.3d 262, 268 & n.3 (4th Cir. 2015)).

Our decision in Presley did not address the Virginia state courts’ interpretation of the meaning of the term robbery “by violence or intimidation.” 52 F.3d at 69. Nor did our Presley decision apply the Johnson I definition of “physical force.” Accordingly, we now must consider under the current legal landscape whether Virginia common law robbery qualifies as a violent felony under the ACCA’s force clause.

As noted above, Virginia common law robbery can be committed by violence or by intimidation. Thus, if either means of committing this crime does not require the “use, attempted use, or threatened use” of “physical force,” then Virginia robbery does not categorically match the force clause of the ACCA. See Gardner, 823 F.3d at 803.

In addressing Virginia common law robbery by means of violence, the Supreme Court of Virginia has explained that commission of common law robbery by violence requires only a “slight” degree of violence, “for anything which calls out resistance is sufficient.” Maxwell v. Commonwealth, 165 Va. 860, 183 S.E. 452, 454 (1936). Further, under Virginia law, the “violence used [to commit robbery by violence] does not need to be great or cause any actual harm to the victim.” Henderson v. Commonwealth, No. 3017-99-1, 2000 WL 1808487, at *3 (Va. Ct. App. Dec. 12, 2000) (unpublished) (citing Jones v. Commonwealth, 26 Va.App. 736, 496 S.E.2d 668, 670 (1998)).

This interpretive guidance from the Virginia appellate courts bears a strong similarity to the North Carolina courts’ description of North Carolina common law robbery, which we concluded in Gardner did not qualify as a violent felony under the ACCA’s force clause. Gardner, 823 F.3d at 803 (citing State v. Sawyer, 224 N.C. 61, 29 S.E.2d 34, 37 (1944) for the proposition that “the degree of force” required for North Carolina robbery “is immaterial, so long as it is sufficient to compel the victim to part with his property”). But see Doctor, 842 F.3d at 311 (explaining that “there is no indication that South Carolina robbery by violence can be committed with minimal actual force”). Because Virginia common law robbery can be committed when a defendant uses only a “slight” degree of force that need not harm a victim, Virginia common law robbery appears to encompass a range of de min-imis contact by a defendant.

This conclusion further is supported by a case decided by Virginia’s intermediate appellate court, which illustrates that the minimum culpable conduct required for a conviction of Virginia common law robbery need not amount to violent physical force. Jones, 496 S.E.2d 668. In Jones, the victim was carrying her purse “tucked” under her arm when the defendant approached the victim from behind, “tapped her on the shoulder, and ‘jerked’ her around by pulling her shoulder,” took her purse, and ran. Id. at 669. The Virginia court concluded that the defendant’s act of “physical jerking,” which was not strong enough to cause the victim to fall, was a sufficient degree of force to support the robbery charge. Id. at 669-70. The extent of the victim’s resistance in that case was limited to the fact that she was “forc[ed] ... to turn and face” the defendant. Id. at 670. Contrary to the government’s position in the present case, such resistance by the victim does not necessarily reflect use of “violent force” by the defendant. See generally Gardner, 823 F.3d at 803-04 (explaining that a defendant’s act of pushing the victim’s shoulder and causing her to fall was not violent force under Johnson I); Karimi v. Holder, 715 F.3d 561, 569 (4th Cir. 2013) (explaining that “[grabbing [an officer’s hand], on its own, is not necessarily ‘violent force’ ”) (quoting Johnson I).

Based on the above decisions from the appellate courts in Virginia, we conclude that the minimum conduct necessary to sustain a conviction for Virginia common law robbery does not necessarily include the use, attempted use, or threatened use of “violent force ... capable of causing physical pain or injury to another person,” under Johnson I. 559 U.S. at 140,130 S.Ct. 1265 (emphasis omitted). Accordingly, we hold that Winston’s conviction for Virginia common law robbery does not qualify as a violent felony under the ACCA.

Our conclusion is not altered by the government’s argument that our decision in United States v. McNeal, 818 F.3d 141 (4th Cir. 2016), compels a different result in the present case. In McNeal we held that federal armed bank robbery under 18 U.S.C. § 2113(d) qualified as a crime of violence under 18 U.S.C. § 924(c)(3)(A), in part because the lesser included offense of bank robbery “by force and violence[ ] requires the use of physical force.” Id. at 153, 157. Our conclusion that federal armed bank robbery had as an element “the use, attempted use, or threatened use of physical force,” within the meaning of 18 U.S.C. § 924(c)(3)(A), is distinguishable from the present case because that decision involved this Court’s interpretation of a federal statute, rather than our application of a state court’s determination of a state offense. See McNeal, 818 F.3d at 154 (citing for support Presley, 52 F.3d at 69, but acknowledging that “a State is entitled to define its crimes as it sees fit”).

Nor are we persuaded by the government’s suggestion that our decision in Gardner, holding that North Carolina common law robbery does not qualify as a violent felony, conflicts with McNeal. The state courts of Virginia and North Carolina are free to define common law robbery in their respective jurisdictions in a manner different from that employed by federal courts in construing a federal statute. Thus, even though our analysis in McNeal, Gardner, and the present case have required application of the force clause as defined by Johnson I to crimes involving robbery by force, by violence, by intimidation, or by fear, we have been called upon in these several cases to analyze distinct crimes under the differing precedent of the relevant jurisdictions.

Accordingly, we hold that the district court erred in concluding that Virginia common law robbery qualifies as a violent felony under the ACCA’s force clause. However, Winston still may be subject to an armed career criminal designation if his rape conviction under the UCMJ qualifies as a violent felony, a question the district court has not addressed. We therefore vacate the district court’s judgment and remand the case for the district court’s consideration of this question in the first instance.

III.

For these reasons, we vacate the district court’s judgment addressing Winston’s successive § 2255 motion, and we remand the case to the district court for further consideration.

VACATED AND REMANDED.

      . Under Virginia Code § 18.2-58, the Virginia common law robbery is punishable by imprisonment for a term greater than one year.

      . We observe that Winston filed his motion within one year of the Supreme Court’s decision in Johnson II, in accordance with the statute of limitations set forth in 28 U.S.C. § 2255(f)(3).

      . Because neither robbery nor rape is listed as an enumerated violent felony in the ACCA, we do not address that clause in this decision. See 18 U.S.C. § 924(e)(2)(B)(ii).

      . Like the district court, we reject the government’s various related procedural arguments. Although Winston’s claim depends on the interplay between Johnson II, permitting post-conviction review of the ACCA-enhanced sentence, and Johnson I, defining the scope of the force clause, Winston nonetheless relied to a sufficient degree on Johnson II to permit our present review of his claim. Any argument that Winston’s claim did not “rely on” Johnson II, because that claim would not be successful, does not present a procedural bar. Instead, that issue presents the substantive argument whether, even after receiving the benefit of Johnson II, the defendant still is not entitled to relief, because his conviction nonetheless falls within the force clause.

      . The categorical approach applies only to “indivisible statutes.” Descamps, 133 S.Ct. at 2285, 2290. Under Descamps, a statute is divisible only if it "comprises multiple, alternative versions of the crime” by "list[ing] multi-pie, alternative elements.” Id. at 2284-85. We agree with the parties' position that Virginia common law robbery is an indivisible offense with alternative means of commission, namely, by violence or by intimidation.

      . Although we recognize that Gardner provides persuasive authority, our conclusion that North Carolina common law robbery does not qualify as a violent felony does not compel a similar holding in the present case. We defer to the state courts’ interpretations of their own criminal statutes and common law offenses. See United States v. McNeal, 818 F.3d 141, 153 (4th Cir. 2016).

      . In light of our conclusion, we need not address robbery committed by means of intimidation under Virginia law and whether that commission qualifies as the threatened use of physical force under Johnson I.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Juan Elias LARA, Defendant-Appellant.
    No. 15-4767
    United States Court of Appeals, Fourth Circuit.
    Argued: January 26, 2017
    Decided: March 14, 2017

      ARGUED: Daniel Robert Bieger, DAN BIEGER, PLC, Bristol, Tennessee, for Appellant. Kevin Lee Jayne, OFFICE OF THE UNITED STATES ATTORNEY, Abingdon, Virginia, for Appellee. ON BRIEF: John P. Fishwiek, Jr., United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.
    Before WILKINSON, NIEMEYER, and KEENAN, Circuit Judges.
   BARBARA MILANO KEENAN, Circuit Judge:

In this appeal, we decide whether the district court erred in considering at a defendant’s sentencing hearing certain admissions he made while participating in a Sex Offender Treatment Program (the treatment program), which he was ordered to complete as a condition of probation in a prior case. The defendant, Juan Lara, contends that the statements he made in an interview conducted as part of the treatment program are protected by the psychotherapist-patient privilege and the Fifth Amendment privilege against self-incrimination. The government disagrees, arguing that Lara knowingly and voluntarily waived any privilege by earlier consenting to the disclosure of any such statements to the Virginia Department of Corrections (VDOC).

Upon our review, we conclude that Lara affirmatively waived any psychotherapist-patient privilege when he agreed as part of his conditions of probation in the prior case to the disclosure of any statements he made in the treatment program. We also conclude that the Fifth Amendment privilege against self-incrimination did hot apply to those statements, because Lara voluntarily made the statements while participating in the treatment program. Accordingly, we hold that the district court did not err in considering Lara’s statements at sentencing, and we affirm the district court’s judgment.

I.

In February 2008, Lara was convicted in the Circuit Court of Grayson County, Virginia, for the aggravated sexual battery of a mentally incapacitated victim, in violation of Virginia Code Section 18.2-67.3(A)(2). For that offense, Lara received a sentence of 20 years’ imprisonment, with 17 years suspended, and a term of 20 years’ supervised probation to be served upon his release from confinement. Lara was released from custody in December 2009, and immediately began his term of supervised probation. The terms of his supervision included a requirement that Lara “[ajttend and successfully complete a Sex Offender Treatment Program,” permit the Treatment Program provider to have “unrestricted communication with the probation and parole department,” and “submit to any polygraph ... deemed appropriate by [his] supervising officer.” Before he was released from custody, Lara signed the form listing these conditions. Above his signature was the following language: “I have read the above ... and by my signature or mark below, acknowledge receipt of these Conditions and agree to the Conditions set forth.”

Pursuant to these release conditions, Lara was referred to Flora Counseling Services Corporation, a sex offender treatment program provider. As part of the “intake” process, Rudy Flora, a licensed clinical social worker, conducted an interview with Lara in April 2010. During that interview, Lara disclosed details about his sexual history, including his sexual contact with minors and commission of forcible sexual assaults, as well as his involvement in two murders. A few weeks later, Lara confirmed these details in a polygraph examination, and signed a written statement describing the incriminating information he had provided. About three months later, in July 2010, Lara signed a form titled “Sex Offender Program Acknowledgement of Confidentiality Waiver” (waiver form), acknowledging that “whatever [Lara] tell[s] a therapist or group leader ... is not privileged or private,” and that he agreed to “waive any and all such rights of confidentiality which may exist by statute or rule of law.”

Although Flora transmitted to VDOC Lara’s admissions regarding the uncharged sexual crimes and murders, the record does not indicate that law enforcement officials took any action at that time based on this information. Lara successfully completed the treatment program without further incident, and continued on supervised probation thereafter.

Around March 2014, Lara moved from Virginia to Texas. In violation of his conditions of probation, Lara failed to notify his probation officer of the move or update his registration with the Sex Offender and Crimes Against Minors Registry maintained by the Virginia State Police. Lara was arrested several months later in Lake Jackson, Texas, and ultimately was indicted by a federal grand jury for violating the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. § 2250.

Lara pleaded guilty to the SORNA violation. He later filed a motion to exclude from consideration at sentencing his admissions of criminal activity made in the treatment program interview. After a hearing, the district court denied Lara’s motion. The district court held that Lara voluntarily had waived any psychotherapist-patient privilege, and that the Fifth Amendment did not protect Lara from the government’s use of his voluntary disclosures of incriminating information. After finding that Lara more likely than not committed the crimes that he had described in the treatment program interview, the district court sentenced Lara for the SORNA violation to the statutory maximum penalty of 120 months’ imprisonment. Lara appeals from the sentence imposed by the district court.

II.

Lara argues that the district court erred by concluding that he knowingly and voluntarily waived the psychotherapist-patient privilege. He contends that he did not voluntarily waive the privilege, because he was “compelled to participate” in the treatment program.

In response, the government observes that when Lara agreed to the conditions of probation in the state court, including the waiver of treatment program confidentiality, he did so in order to avoid additional incarceration. According to the government, this is a choice routinely faced by defendants in criminal cases, and Lara’s voluntary agreement to those terms of probation precludes his present assertion of privilege. We agree with the government’s view, and conclude that Lara’s waiver of any privilege was knowing and voluntary.

A district court’s decision whether to recognize a privilege is a mixed question of law and fact, which we consider de novo on appeal. Virmani v. Novant Health Inc., 259 F.3d 284, 286-87 (4th Cir. 2001). Similarly, we review de novo the issue whether the government violated a defendant’s Fifth Amendment right against compelled self-incrimination. See Howard v. Moore, 131 F.3d 399, 414 (4th Cir. 1997) (reviewing voluntariness of a Fifth Amendment waiver as a mixed question of law and fact), abrogated on other grounds by Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005).

Under Federal Rule of Evidence 501, the federal courts recognize a testimonial privilege for psychotherapist-patient communications. Jaffee v. Redmond, 518 U.S. 1, 15, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996). Like other privileges, the psychotherapist-patient privilege may be waived “by knowingly and voluntarily relinquishing it.” United States v. Bolander, 722 F.3d 199, 223 (4th Cir. 2013) (citing United States v. Hayes, 227 F.3d 578, 586 (6th Cir. 2000)). We have “strictly construed” this privilege, and have emphasized that the party invoking the privilege bears the burden of showing that the privilege applies, including the absence of any waiver of privilege. Id. at 222.

Probation is “one point ... on a continuum of possible punishments” imposed on those convicted of a crime. Samson v. California, 547 U.S. 843, 848, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006) (quoting United States v. Knights, 534 U.S. 112, 119, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001)). Accordingly, courts administering probation “may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens.” Knights, 534 U.S. at 119, 122 S.Ct. 587. The governmental interest in enforcing liberty-restricting conditions is especially strong when supervision is employed as an alternative to incarceration, including-when, as here, a court partially suspends a sentence of imprisonment. See Pa. Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 365, 118 S.Ct. 2014, 141 L.Ed.2d 344 (1998) (“In most cases, the State is willing to extend parole only because it is able to condition it upon compliance with certain requirements.”).

Based on the record before us, we conclude that Lara knowingly agreed to disclosure of his treatment records when he signed the form in the state court proceedings acknowledging the terms of his supervised probation. As noted above, these terms included an unambiguous provision authorizing the treatment program providers to have “unrestricted communication” with the state probation and parole department regarding “any ... information deemed necessary to protect the community.” Lara expressly signed the form “acknowledg[ing] receipt of these Conditions and agreeing] to the Conditions set forth.” The Virginia court suspended 17 years of Lara’s 20-year sentence of imprisonment in part based on this provision, as well as the other specified terms of probation. See Va. Code § 19.2-303 (“[T]he [sentencing] court may suspend imposition of sentence ... in whole or part and in addition may place the defendant on probation under such conditions as the court shall determine.”). Because Lara signed a form in the state court acknowledging this “clearly expressed” condition, he was “unambiguously aware” of that condition. See United States v. Hill, 776 F.3d 243, 249 (4th Cir. 2015) (internal quotation marks omitted) (quoting Samson, 547 U.S. at 852, 126 S.Ct. 2193).

We also conclude that Lara voluntarily agreed to be bound by these conditions of supervised probation. Lara does not cite any authority for the proposition that his acquiescence to the conditions of probation was not voluntary because the alternative would have been additional imprisonment. There is ample authority, however, to support the contrary conclusion that a defendant’s agreement to be bound by court-imposed conditions of release is not rendered involuntary by the sole fact that he will be incarcerated in the absence of such acquiescence. See United States v. Yeary, 740 F.3d 569, 582-83 (11th Cir. 2014) (holding that a defendant voluntarily consented to conditions of pretrial release); Anderson v. Commonwealth, 256 Va. 580, 507 S.E.2d 339, 341 (1998) (holding that an offender’s selection between serving a sentence of imprisonment and complying with conditions of a suspended sentence constituted a voluntary “choice, not coercion”); see also McKune v. Lile, 536 U.S. 24, 50, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002) (opinion of O’Connor, J.) (concluding that the defendant had a voluntary choice, and was not compelled to incriminate himself, when required to participate in a sex offender treatment program to avoid transfer from a medium-security to a maximum-security area of a prison). Also, in analogous circumstances, we routinely have upheld plea agreements as voluntarily entered even when defendants have elected to waive important rights in exchange for reducing the risk or length of imprisonment. See United States v. Blick, 408 F.3d 162, 165 (4th Cir. 2005) (plea agreement waiving right to appeal held to be voluntary); United States v. Lemaster, 403 F.3d 216, 223 (4th Cir. 2005) (waiver of collateral attack rights held to be voluntary).

We therefore conclude that Lara’s agreement to be bound by the conditions of his supervised probation was both knowing and voluntary. Accordingly, we hold that Lara affirmatively has waived any psychotherapist-patient privilege that may have applied to the incriminating statements he made while participating in the treatment program. See Jaffee, 518 U.S. at 15 n.14, 116 S.Ct. 1923; Bolander, 722 F.3d at 223.

III.

Lara next argues that his Fifth Amendment privilege against self-incrimination was violated when he made the incriminating statements in his intake interview with Flora. According to Lara, the condition of probation directing him to participate in the treatment program effectively required him to disclose incriminating information or face revocation of probation. He asserts that in view of this ongoing prospect, he was not required to assert his Fifth Amendment privilege during the intake interview in order for the privilege to have applied.

In response, the government argues that the Fifth Amendment privilege generally is not self-executing, and that Lara’s conditions of probation did not fall within the narrow “penalty” exception to this rule. We agree with the government’s position.

To invoke the Fifth Amendment privilege against self-incrimination, a defendant “ordinarily must assert the privilege rather than answer if he desires not to incriminate himself.” Minnesota v. Murphy, 465 U.S. 420, 429, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984). Thus, if the defendant voluntarily “chooses to answer,” that answer is not privileged. Id. One exception to this general rule occurs in “penalty” cases, in which assertion of the privilege results in a penalty that essentially “foreclose^] a free choice to remain silent.” Id. at 434, 104 S.Ct. 1136 (internal brackets omitted) (quoting Garner v. United States, 424 U.S. 648, 661, 96 S.Ct. 1178, 47 L.Ed.2d 370 (1976)). We conclude that this case does not involve such a “penalty.”

The Supreme Court has explained that in order for conditions of probation to provide a sufficient “penalty” to overcome a defendant’s free choice to remain silent, the threat of revocation must be nearly certain. See id. at 437-38, 104 S.Ct. 1136 (holding that the threat of revocation of probation was not sufficient to trigger self-executing Fifth Amendment protections because “[t]here is no direct evidence that [the defendant] confessed because he feared that his probation would be revoked if he remained silent,” and “[Revocation is not automatic” for violation of probation conditions); see also United States v. Ramos, 685 F.3d 120, 128-29 (2d Cir. 2012). The factual record before us conclusively demonstrates that Lara answered freely and without any suggestion of invoking his Fifth Amendment privilege, and that he was never threatened with the imposition of a penalty sufficient to overcome his freedom of choice to remain silent.

There is no evidence that Flora told Lara that his probation would be revoked if he did not admit to uncharged sex offenses. Also, the language in Lara’s conditions of probation advised him generally that “[t]he Court ... may revoke or extend your probation ... wpon cause shown.” (emphasis added). Thus, just as in Murphy, revocation of Lara’s probation would not have been “automatic,” and he would have been afforded a court hearing before revocation could have occurred. Murphy, 465 U.S. at 438, 104 S.Ct. 1136; see also Ramos, 685 F.3d at 128-29 (holding that a possibility that silence “could lead to the initiation of violation proceedings or the revocation of his parole” was insufficient to create a penalty condition). And, if Lara had asserted his Fifth Amendment privilege, the state court could not have revoked his probation on that basis. See Murphy, 465 U.S. at 438, 104 S.Ct. 1136.

Accordingly, we conclude that Lara was not compelled to provide incriminating information, and that the circumstances surrounding his statements made in the intake interview did not create a penalty situation in which the Fifth Amendment privilege was self-executing. Therefore, we hold that the district court did not err in considering at the sentencing hearing the incriminating statements Lara made while participating in the treatment program.

IV.

For these reasons, we affirm the district court’s judgment.

AFFIRMED.

      . Flora testified at an evidentiary hearing that the waiver form was signed as a prerequisite for entering the treatment program, but the face of the waiver form indicates that both Flora and Lara.signed the form on July 1, 2010, about three months after Lara entered the program in April 2010.

      . The district court ruled on the issue of Lara’s waiver of privilege without first deciding whether the psychotherapist-patient privilege applies to evidence admitted at sentencing proceedings. Because we agree with the district court that Lara waived any privilege that may have applied, we affirm the district court's ruling on the waiver issue, and need not decide whether the privilege applies to evidence admitted at sentencing proceedings.

      . We recognize that Flora testified that he advised Lara during his intake interview in the treatment program that any statements made during counseling would be shared with VDOC, while Lara asserts that Flora advised him about this matter after he already had made the incriminating statements. However, we need not consider this conflict in the testimony, because Lara’s agreement to the conditions of probation at the time of his sentencing in the Virginia court is sufficient to show that he knowingly acknowledged the unrestricted communication between Flora and VDOC.

      . We are not persuaded by the Ninth Circuit’s holding in United States v. Bahr, 730 F.3d 963 (9th Cir. 2013). The defendant in Bahr was required, as a condition of supervision, to complete a sex offender treatment program, and to comply with all the rules and conditions of the program. Id. at 965. During a polygraph administered as part of the program, the defendant in Bahr admitted to committing uncharged sex crimes. Id. The Ninth Circuit held that the penalty for refusing to answer questions in such a treatment program was “more than merely hypothetical.” Id. at 966 (internal quotation marks omitted). The Ninth Circuit distinguished Bahr from Murphy by observing that unlike in Murphy, where the defendant "could have chosen not to answer,” the defendant in Bahr "had no choice but to answer the questions posed.” Id. at 967. As discussed above, Lara could have chosen not to provide incriminating information, and thus the reasoning in Bahr does not apply to this case.