author: FLAUM, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Kristopher WARREN, Defendant-Appellant.
    No. 16-1492
    United States Court of Appeals, Seventh Circuit.
    Argued September 28, 2016
    Decided December 5, 2016

      Julie Suzanne Pfluger, Attorney, Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee.
    Joseph Aragorn Bugni, Attorney, Federal Defender Services of Wisconsin, Inc., Madison, WI, for Defendant-Appellant.
    Before POSNER, FLAUM, and MANI ON, Circuit Judges.
   FLAUM, Circuit Judge.

Kristopher Warren pled guilty to transporting and possessing child pornography and was sentenced to five years’ imprisonment and fifteen years’ supervised release. The district court entered an order modifying Warren’s conditions of release pursuant to 18 U.S.C. § 3583(e). Warren challenged three of the conditions, and the district court dismissed his objections. We affirm.

I. Background

Between September 18, 2003, and October 7, 2003, Warren moderated a Yahoo! Group originally named “FunFotos4all.” Warren founded this group, established its rules, and frequently changed the group’s name to evade enforcement of Yahoo! Group rules, During this time period, Warren posted to the group 117 images of child pornography, including images titled “9yococksuck[l].jpg,” “12yoBondage,jpg,” and “14yo girl-bound and gagged.jpg”; images of prepubescent and minor girls exposing their genital areas and being vaginally or orally penetrated by adult male penises; and at least one image of a prepubescent girl being anally penetrated by a minor boy. After images were posted to the group,' Warren sorted them into albums with titles such as “ForcedorTiedu-porCrying,” “hots Toys-R-US,” and “virgin.” He also posted notices and comments to the group, including requests for “new” images of child pornography that had not been previously viewed on the Internet. The following are examples of Warren’s comments:

• On September 19, 2003: “I have changed the name, and made this a restricted group in hopes that it stays open longer. Members are now required to send 2 pictures to obtain and keep membership.”
• On September 23, 2003: “I added a ton of pics and regrouped them all so they’re easier to find. Please add a photo or two to the ‘Add new pict here’ folder and I will sort them. I think the group looks pretty good right now but we could use some more pics. I’m rejected [sic] any new members who haven’t added pics and I’ll go through the members who are dead beats later in the week. Post away!!!!”
• On September 24, 2003: “Anyone interested in young braless candid, or web cam hardcore? Please post and I’ll start a folder.”
• On September 28, 2003: “Added a ton, but need some more help on pics — the photo albums are looking good but we’re a little light in some areas. CANDID: Nips showing through shirts, swimsuits, or bras, or any personal ones, or stuff that hasn’t made the rounds and is of the right age, lets [sic] add them to our collection. FORCEDORTIEDORCRY-ING: Anyone have some good young stuff. We don’t have many crying pics yet. Any pics you want to add to the ADDNEWPICS folder would be appre-dated. GOOD WORK EVERYONE, Your moderator.”
• On September 28, 2003: “I forgot one photo album that is really weak, VIRGINS. People have been sending me a lot of requests so please send in your pics. Anything with unbroken hymens, or popping a cherry for the first time is good. Nothing will be rejected.”
• On September 30, 2003: “Real High school girls age 14-17. No pictures that have made their way around the internet. The pics must be very sexy and will be deleted if they are not. Send a few to join.”

In February 2004, agents executed a search warrant at Warren’s residence and seized his computer. A partial review of the images on Warren’s computer revealed 263 images and one video of child pornography, 136 images of child erotica, 297 images of subjects of an undetermined age engaging in sexually explicit conduct, and 949 images of adult pornography. During his interview with the FBI, Warren admitted that he was part of the forum and that the child pornography on the computer belonged to him.

From the time of his confession until 2009, Warren attended therapy, moved back to his hometown in Wisconsin, and avoided further legal trouble. In March 2009, Warren was charged with transportation of child pornography, in violation of 18 U.S.C. § 2252(a)(2), and possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B), in the Central District of California. Warren pled guilty in July 2009.

In February 2010, Warren was sentenced to five years’ imprisonment and fifteen years’ supervised release. Prior to sentencing, the government alleged that Warren’s computer had also revealed his perusal of websites about drugging people, and photos of adult women, including his then-girlfriend, sleeping or otherwise unconscious and in various states of undress. Warren denied ever drugging or assaulting anyone, his then-girlfriend stated that the photos of her sleeping had been taken consensually, and Warren was never charged with any crime related to the pictures. The sentencing judge did not address the matter.

During his five-year prison term, Warren tutored inmates, started a Sex Addicts Anonymous group, and became involved in “Life Connections,” a Christian residential-reentry preparation program. Warren also requested relocation of his supervision to the Western District of Wisconsin. His request was later approved, and at the end of his prison term, Warren returned to Wisconsin. The Madison, Wisconsin probation office petitioned the court to modify Warren’s conditions of supervised release to match the office’s standard language and to add conditions that the office generally requests in “sex offender” cases. These conditions included, in relevant part, (1) a travel condition, (2) a no-contact-with-minors condition, and (3) a polygraph condition. The judge appointed counsel for Warren, and on June 22, 2015, Warren filed a brief objecting to the proposed changes. During the hearing and mediation process leading up to the district court’s final decision, the parties stipulated with respect to the polygraph condition that Warren’s treatment provider had not requested polygraph testing; rather, the probation office would secure a polygraph examiner, in part for use in monitoring Warren’s compliance with supervision, and if probation thought the information provided during a polygraph exam might be relevant to treatment, they would pass that information along.

On February 23, 2016, after briefing by the parties and a hearing, the court issued an opinion and order on the defendant’s conditions of supervised release, which included the following conditions:

Standard Condition No. 1: Defendant shall not leave the judicial district in which defendant is being supervised without the permission of the court or probation officer.
Special Condition No. 4: Not associate with any person under the age of 18 or have verbal, written, telephonic, or electronic communication with any such person, except with the express permission of the minor’s parent or legal guardian and the supervising U.S. probation officer. This provision does not include persons under the age of 18, such as waiters, cashiers, ticket vendors, etc., with whom defendant must deal in order to obtain ordinary and usual commercial services.
Special Condition No. 7: Undergo a psy-chosexual evaluation, which may involve use of polygraph examinations, as approved by the supervising U.S. probation officer. Defendant shall participate in an outpatient sex offender counseling program if recommended by the evaluator, which may involve the continued use of polygraph examinations, as approved by the supervising U.S. probation officer. Defendant's answers to questions by the treatment provider, probation officer and polygraph examiner shall be truthful in all respects unless a fully truthful statement would tend to incriminate defendant, in violation of defendant’s constitutional rights, in which case defendant has the right to remain silent. Defendant shall follow all restrictions and treatment requirements of the program.
Warren challenges these three conditions on appeal.

II. Discussion

With respect to claims of substantive error, we review contested conditions of supervised release for abuse of discretion. United States v. Kappes, 782 F.3d 828, 844 (7th Cir. 2015); United States v. Poulin, 809 F.3d 924, 930 (7th Cir. 2016), reh’g denied (Feb. 22, 2016). We review claims of procedural error de novo. Poulin, 809 F.3d at 930. Throughout, “we must be mindful of the fact that ‘[t]he sentencing judge is in a superior position to find facts and judge their import under § 3553(a) in the individual case, and ‘district courts have an institutional advantage over appellate courts in making these sorts of determinations, especially as, they see so many more Guidelines cases than appellate courts do.’ ” Kappes, 782 F.3d at 844 (quoting Gall v. United States, 552 U.S. 38, 51-52, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)) (alteration in original).

The Sentencing Reform Act of 1984 imposes a handful of mandatory conditions and allows for additional discretionary conditions. 18 U.S.C. § 3583; United States v. Siegel, 753 F.3d 705, 707 (7th Cir. 2014). Certain discretionary conditions are designated as “standard,” U.S.S.G. § 5D1.3(c), while others are called “special,” id. §§ 5D1.3(d)-(e), and are recommended for particular offenses. Siegel, 753 F.3d at 707. Regardless, “all discretionary conditions of supervised release must ... comply with overall federal sentencing policy as stated in 18 U.S.C. § 3553(a).” Id. These policy considerations include “the nature and circumstances of the offense and the history and characteristics of the defendant,” “the need for the sentence imposed,” and “the kinds of sentences available.” United States v. Thompson, 777 F.3d 368, 373 (7th Cir. 2015) (citing 18 U.S.C. § 3553(a)). Ultimately, a sentencing judge should consider four general principles when imposing conditions of supervised release:

(1) [T]he importance of advance notice of conditions being considered; (2) the need to justify the conditions and the length of the term at sentencing by an adequate statement of reasons, reasonably related to the applicable § 3553(a) factors; (3) the goal of imposing only specific, appropriately-tailored conditions — which is to say, avoiding the imposition of vague or overbroad, conditions; and (4) the requirement to orally pronounce all conditions, with thé written judgment only clarifying the oral pronouncement in a manner that is not inconsistent with an unambiguous oral provision.

Kappes, 782 F.3d at 838-39. In essence, the imposed conditions “cannot involve a greater deprivation of liberty than is reasonably necessary to achieve the goals of deterrence, incapacitation, and rehabilitation.” United States v. Goodwin, 717 F.3d 511, 522 (7th Cir.) (citing United States v. Holm, 326 F.3d 872, 876 (7th Cir. 2003)), cert. denied, — U.S. —, 134 S.Ct. 334, 187 L.Ed.2d 234 (2013).

A. Standard Condition No. 1: Travel Condition

Warren contends that the -district court both procedurally and substantively erred in imposing the travel condition without adequate justification relating to his background, crime, protecting the public, or any other goals of sentencing. This condition, however, is an administrative requirement that can be imposed without explanation. See Thompson, 777 F.3d at 378; see also Poulin, 809 F.3d at 931; Kappes, 782 F.3d at 848 (requiring non-administrative conditions to be adequately supported and not vague or overbroad). Warren counters that, because he objected to the travel condition before the district court, this case is distinguishable from Kappes and Thompson. However, we never tied our holdings in those cases to the fact that defendants did not initially challenge the travel condition.

Moreover, though it was not required to do so, the district court articulated several sound reasons for the. travel condition, including that “it is related to tracking and controlling defendant, given the nature of his offenses of conviction for child sex offenses”; “[he] is a relatively wealthy businessman, capable of traveling out of the judicial district without notice”; it “serves as a general and specific deterrent”; “it serves to protect the public”; and it allows probation officers to “more easily accomplish[ ]” their “statutory duty to keep informed of a defendant’s location, conduct, condition and compliance ... within a district in which the officer is familiar and has unquestioned jurisdiction.” United States v. Warren, No. 15-cr-56-wmc, 2016 WL 738779, at *7 (W.D. Wis. Feb. 23, 2016). Warren argues that his offense did not include a travel-related component; however, the fact that Warren committed his offense from inside his home does not neutralize the potential threat he poses to children outside his home. See Poulin, 809 F.3d at 927, 931-32 (concluding that a travel condition was justified where defendant stored and viewed child pornography in his basement); Kappes, 782 F.3d at 839, 849-50 (upholding travel condition imposed on defendant who distributed and possessed child pornography using a computer in his apartment).

Warren also argues that the travel condition is vague because it is unclear what might be a basis for probation’s approval. or disapproval of any particular travel plans. But, as we observed in Kappes, “[i]t is inherent in this system that conditions allow probation officers a degree of discretion in performing their difficult job..... [A]t some point, we must ‘fairly presume [the defendants probation officer will apply the conditions in a reasonable manner.’ ” 782 F.3d at 857-58 (last alteration in original) (citation omitted). This is certainly the case with administrative conditions, such as this one, which we have characterized as “necessary incidents of supervision.” Id. at 843.

B. Standard Condition No. 4: No-Contact-With-Minors Condition

Warren next argues that the district court procedurally and substantively erred in imposing the no-contact-with-minors condition.

Procedurally, he claims the court erred when it mistakenly referenced in its order imposing the no-contact condition a “previous violation while on supervised release.” Warren has not committed any such previous violation. This error is harmless, however, as the other factors the court relied on to justify the condition are sufficient to support its imposition. These include defendant’s efforts to solicit new, specific kinds of child pornography; the risk that he would promote the creation of new child pornography; his perusal of websites providing instructions on how to drug women; and his images of apparently asleep or unconscious women with exposed breasts and genitals. Warren, 2016 WL 738779, at *10. Further, the district court did not mention any previous supervised-release. violation in its opinion. See id. Thus, it is apparent this factor played little to no role in the court’s imposition of this condition, and the error is harmless.

Substantively, Warren contends the no-contact provision is inappropriate because it is not justified by the facts of his case. Warren compares the. case at hand to three cases where we considered similar no-contact provisions and concluded they were overbroad: Thompson (where the defendant had an online relationship with a teenage girl involving the exchange of nude pictures, and later sexual intercourse), Kappes (where the defendant downloaded child pornography, had been taking. photos of an underage girl at a nearby pool for the past ten years, and had stolen and kept children’s underwear for twenty years), and Jurgens (where the defendant possessed child pornography of seven- and eight-year-olds, had been diagnosed' with pedophilia, and had stated that he “can’t do anything [to children] when they are not here”). Warren further emphasizes - that we characterized Jurgens’s offense as “perhaps the minimum of what might be sufficient to justify a no-contact provision in a possession-only child-pornography case,” Kappes, 782 F.3d at 860. Warren argues that his own offense is less serious than all of these cases because he did not commit a “hands-on” offense with a minor, his criminal conduct lasted for only nineteen days, and it occurred over twelve years ago.

Our case law clearly establishes that commission of a “hands-on” offense is not necessary to impose a no-contact condition. See, e.g., Kappes, 782 F.3d at 859; Poulin, 809 F.3d at 935 (holding that the district court did not abuse its discretion in imposing a no-contact condition on a possession-only child-pornography offender where the court considered the condition’s impact on the defendant’s familial relations, the lack of a pedophilia diagnosis, and the lack of evidence that he had acted out sexually toward a child). Where a possession-based offense is sufficiently serious, a tailored no-contact provision may be imposed. See, e.g., Kappes, 782 F.3d at 859.

On appeal, Warren downplays his criminal conduct. He argues that “most of [his forum] was lawful pornography,” that “there’s no evidence that Warren ever had a specific interest in children (as opposed to pornography generally),” and that his activity was “far removed from real children.” As the government notes, however, “there is no indication in the PSR [Pre-Sentence Report] (or any other document) that the Yahoo! Group that the defendant created and managed contained any adult pornography.” More importantly, possession of adult pornography does not serve as the basis for his conviction and sentence. Rather, Warren’s conviction centered on the child pornography he admits he posted and encouraged others to post in the forum. The file names, the content of the images he posted, and the comments he made all evince a specific interest in children. He also actively and specifically solicited new child pornography, creating a risk that real children would be further victimized. See United States v. Goldberg, 491 F.3d 668, 672 (7th Cir. 2007) (“Young children were raped in order to enable the production of the pornography that the defendant both downloaded and uploaded — both consumed himself and disseminated to others. The greater the customer demand for child pornography, the more that will be produced.”). As such, the district court did not err in implicitly finding Warren’s child-specific interests and actions were at least as serious as the “minimum” identified in Kappes, warranting the no-contact condition:

Warren next takes issue with the district court’s statement that it was not “willing to discount the possibility that the defendant’s past perusal of ‘instructional’ websites about drugging women, coupled with images found on the defendant’s camera of apparently asleep or unconscious women with breasts and genitals exposed, suggests related risks.” Warren, 2016 WL 738779, at *10. He argues that no court has ever made findings of fact with respect to these allegations, and that they are unrelated to the no-contact condition, which focuses on minors. Warren does not, however, dispute the fact that he perused these websites and possessed these images. Moreover, the district court, within its discretion, referred to the suggested risks raised by these facts only as they relate to minors. See Kappes, 782 F.3d at 844. Indeed, although these particular images were not of children, Warren’s apparent sexual interest in incapacitated and vulnerable women, considered together with his specific solicitations of new child pornography, raise reasonable concerns regarding his contact with minors. Finally, even without consideration of these facts, the district court’s other justifications for imposing the no-contact condition, as described in more detail above, are sufficient. See Warren, 2016 WL 738779, at *10.

Finally, Warren argues that the no-contact condition is overbroad, as it could effectively bar him from participating in any number of everyday activities (such as attending church, sporting events, barbecues, or block parties) in which minors, too, are often included. We uphold these types of conditions, however, when the district court reasonably concludes that the facts of the case justify them. See Poulin, 809 F.3d at 935. Additionally, the no-contact condition here is more narrowly tailored than those Warren points to. In Thompson, we vacated a no-contact condition, in part because it did not exempt incidental contact with, for example, waitresses or cashiers who could be minors. Id. at 376. The no-contact condition here, however, does just that. Lastly, as the district court noted, imposing such an appropriately tailored condition and allowing the probation office discretion to approve or disapprove Warren’s attendance at various events or locations where minors may be present is reasonable. See Kappes, 782 F.3d at 859. Accordingly, the no-contact condition is not overbroad.

C. Standard Condition No. 7: Polygraph Condition

Finally, Warren contends the polygraph-testing condition imposes an inappropriate “probation-monitoring-focused polygraph condition.” Relying on Siegel, Warren stresses that we have previously taken issue with a condition requiring the defendant to submit to polygraph testing, which may be part of a sex offender treatment program as directed by the probation office. 753 F.3d at 713 (alteration in original). There, we questioned, “If physiological testing may be rather than must be part of the required sex-offender treatment program, implying that it is not a mandatory part, why is it a free-standing requirement, imposed whether or not it is part of a sex-offender treatment program? What other function could it serve? Is it just a euphemism for giving the prisoner lie-detector tests?” Id. Warren concludes that polygraph tests are appropriate only when they are requested by the treatment provider, and directed by and toward treatment, not monitoring.

The district court, however, relied on United States v. Brewster, 627 Fed.Appx. 567 (7th Cir. 2015). There, we held that the district court did not err in imposing a polygraph condition unrelated to treatment, “as a means to insure compliance with program requirements and restrictions,” given the defendant’s horrific conduct (sexually abusing his two daughters) and his subsequent portrayal of himself to the district court as a “good father.” We also noted that his lack of “honest self-assessment” made polygraph testing especially appropriate.

Together, Siegel and Brewster demonstrate that determining whether a polygraph condition is appropriate (e.g., with respect to the extent to which it ought to be (1) tied to treatment and (2) under the purview of the treatment provider versus the probation office) depends on the facts of each case. Our holdings in Kappes and United States v. Rhodes, 552 F.3d 624 (7th Cir. 2009), further illustrate, this principle. In Kappes, we dismissed one defendant’s exception to a condition that he “submit to physiological testing, including polygraph testing, which may be part of a sex offender treatment program as directed by the U.S. Probation office”; because “we read this condition as [simply] delegating to probation the selection of the treatment provider.” 782 F.3d at 856. We noted that “only the treatment provider is authorized to select the type(s) and amount of testing.” Id. In Rhodes, the condition at issue similarly stated that the defendant was to “undergo a psychosexual evaluation and participate in an outpatient sex offender counseling program if recommended by the evaluator which may involve use of polygraph and plethysmograph examinations.” 552 F.3d at 626. We observed, however, that “[p]erhaps the counselor and the Probation Officer responsible for this case may determine that [PPG] testing would not be efficient, effective, economical, or necessary, or perhaps they would be satisfied with polygraph testing alone, which is not unusual.” Id. at 628. In sum, some cases may warrant the probation officer’s involvement in polygraph examinations, while others may not; This case-by-case approach preserves the sentencing judge’s flexibility to consider the relevant circumstances and craft an appropriately tailored condition,

Here, after considering all of the evidence, the district court concluded the polygraph condition was necessary. The court found that Warren’s “past criminal conduct ,.. acting as a moderator for a private website group that actively solicited, organized and posted new, disturbing images and videos of child abuse ... is more than sufficient to defer to the Probation Office’s recommendation that the defendant be subject to polygraph testing ... at least for an initial period of his supervision.” Warren, 2016 WL 738779, at *1. The court explained that the polygraph testing was appropriate whether it was used “to obtain a more complete sexual history, help the defendant to confront the full context of his crime of conviction or to monitor his ongoing compliance with treatment and supervised release conditions,” Id. at *13. The court further noted that “there is more than enough in this record to suggest that defendant has.yet to disclose the full scope of his past sexual misconduct, is in denial about the full scope of his-criminal conduct here and has given his Probation Officer pause about his ongoing conduct.” Id. Indeed, Warren’s denial of the seriousness of his criminal' conduct is further underscored by his submissions on appeal that “there’s no evidence that [he] ever had a specific interest in children” and that his conduct was “far removed” from children. Ultimately, the district court concluded that the polygraph condition — including its reliance on the probation officer’s discretion — was reasonable. We agree. Accordingly, the district court did not abuse its discretion in imposing it.

Warren also argues that in conjunction with its intrusiveness, polygraph testing’s inaccuracy and unreliability outweigh its usefulness in the context of supervised release. The district court pointed to the efficacy of polygraph tests at promoting public safety, noting that they often reveal additional, previously unknown behaviors that were either violations of conditions of release or other “high-risk” behavior. Warren, 2016 WL 738779, at *12. Regardless, as the district court observed, polygraph conditions have been upheld by every circuit where the circumstances warranted it. See Warren, 2016 WL 738779, at *11 n.8 (collecting cases). We see no reason to depart from that trend today.

III. Conclusion

For the foregoing reasons, we Appibm the judgment of the district court.

      . In his plea agreement, Warren agreed to particular conditions of supervised release if "imposed by the court.” The conditions included that Warren would: (1) "participate in a psychological counseling and/or psychiatric treatment and/or sex offender treatment pre-gram, which may include inpatient treatment, as approved and directed by the Probation Officer, The defendant shall abide by all rules, requirements, and conditions of such program, including submission to risk assessment evaluations and physiological testing, such as poly

        graph and Abel testing-," and (2) “shall not associate or have verbal, written, telephonic, or electronic communication with any person under the age of 18, except: (a) in the presence of the parent or legal guardian of said minor; and (b) on the condition that the defendant notify said parent or legal guardian of his/her conviction in the instant offense/prior offense. This provision does not encompass persons under 18, such as waiters, cashiers, ticket vendors, etc. with whom the defendant must deal in order to obtain ordinary and usual commercial services.’’ (emphasis added). The emphasized language from the first condition, however, was omitted from the special condition in the actual Judgment of Conviction, and the record does not explain this omission.

      . His conditions of supervised release included conditions that he comply with the rules and regulations of the U.S. Probation Office and General Order 318, which contains a condition stating that "the defendant shall not leave the judicial district without the written permission of the court or probation officer.”

      . This defendant’s appeal was consolidated and considered in Kappes, 782 F.3d at 839.


source: Caselaw Access Project

author: KANNE, Circuit Judge. HAMILTON, Circuit Judge,

license: Public Domain

text:
    Gillian BERGER, et al., Plaintiffs-Appellants, v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, et al., Defendants-Appellees.
    No. 16-1558
    United States Court of Appeals, Seventh Circuit.
    Argued September 28, 2016
    Decided December 5, 2016

      Paul McDonald, Attorney, P L McDonald Law LLC, Philadelphia, PA, for Plaintiffs-Appellants.
    William F. Allen, Attorney, Littler Men-delson, P.C., Daniel Volchok, Attorney, WilmerHale, Washington, DC, Alan L. McLaughlin, Attorney, Littler Mendelson P.C., Indianapolis, IN, Donald S. Prophete, Attorney, Constangy, Brooks & Smith, LLP, Kansas City, MO, Lisa Ann Schreter, Attorney, Littler Mendelson, Atlanta, GA, for Defendant-Appellee National Collegiate Athletic Association.
    William J. Anthony, Attorney, Jackson Lewis P.C., Albany, NY, Gregg E. Clifton, Attorney, Jackson Lewis, P.C., Phoenix, AZ, Paul DeCamp, Attorney, Jackson Lewis P.C., Reston, VA, D. Christopher Lauderdale, Attorney, Jackson Lewis P.C., Greenville, SC, for Defendants-Appellees Abilene Christian University, American University, Bucknell University, Charleston Southern University, Fordham University, Georgetown University, University of Hartford, Howard University, University of San Diego,.University of.Southern California, and Tulane University.
    William F. Allen, Attorney, Littler Men-delson, ' P.C., Washington, DC, Alan L. McLaughlin, Attorney, Littler Mendelson P.C., Indianapolis, IN, Donald W. Myers, Attorney, Littler Mendelson, Philadelphia, PA,' Donald S. Prophete, Attorney, Con-stangy, Brooks & Smith, LLP, Kansas City, MO, Lisa Ann Schreter, Attorney, Littler Mendelson, Atlanta, GA, for Defendant-Appellee Belmont University.
    William F. Allen, Attorney, Littler Men-delson, P.C., Washington, DC, Jim Goh, Attorney, Constangy, Brooks, Smith, & Prophete, LLP, Denver, CO, Alan L. McLaughlin, Attorney, Littler Mendelson P.C., Indianapolis, IN, Donald S. Prophete, Attorney, Constangy, Brooks & Smith, LLP, Kansas City, MO, Lisa Ann Schreter,' Attorney, Littler Mendelson, Atlanta, GA, for Defendant-Appellee University of Denver.
    Danuta B. Panich, Attorney, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Indianapolis, IN, for Defendant-Appellee Duke University.
    Kelly L. DeGance, Attorney, Alexander DeGance Barnett, P.A., Jacksonville, FL, Alan L. McLaughlin, Attorney, Littler Mendelson P.C., Indianapolis, IN, for Defendant-Appellee Jacksonville University
    William J. Anthony, Attorney, Jackson Lewis P.C., Albany, NY, Gregg E. Clifton, Attorney, Jackson Lewis, P.C., Phoenix, AZ, Paul DeCamp, Attorney, Jackson Lewis P.C., Reston, VA, Loma Hebert, Attorney, Northeastern University, Boston, MA, D. Christopher 'Lauderdale, Attorney, Jackson’ Lewis P.C., Greenville, SC, for Defendant-Appellee Northeastern University.
    William F. Allen, Attorney, Littler Men-delson, P.C., Washington, DC,
    Alan L. McLaughlin, Attorney, Littler Mendelson P.C., Indianapolis, IN, Donald S. Prophete, Attorney, Constangy, Brooks & Smith, LLP, Kansas City, MO, Lisa Ann Schreter, Attorney, Littler Mendelson, Atlanta, GA, Terry M. Kollmorgen, Attorney, Moyers Martin, LLP, Tulsa, OK, for Defendant-Appellee Oral Roberts University.
    Lawrence D. Peikes, Attorney, Wiggin and Dana LLP, Stamford, CT, Jeffrey Babbin, Attorney, Wiggin & Dana, New Haven, CT, for Defendant-Appellee Quin-nipiac University:
    Before KANNE, SYKES, and HAMILTON, Circuit Judges.
   KANNE, Circuit Judge.

Former student athletes at the University of Pennsylvania (“Penn”) sued Penn, the National Collegiate Athletic Association (“NCAA”), and more than 120 other NCAA Division I universities and colleges alleging that student athletes are employees who are entitled to a minimum wage under the Fair Labor Standards Act (“FLSA”). The district court disagreed. We agree with the district court and hold that student athletes are- not employees and are. not covered by the FLSA.

I. Background

Gillian Berger and Taylor Hennig (“Appellants”) are former students at Penn who participated on Penn’s women’s track and field team. Like many collegiate athletic teams across the country, Penn’s women’s track and field team is regulated by the NCAA. The NCAA is a member-driven, unincorporated association of 1121 colleges and universities. It is divided into three divisions — Divisions I, II, and III— based roughly on the size of the schools and their athletic programs, Penn’s women’s track and field team competes in Division I, which includes the largest colleges and universities in the country.

Appellants sued Penn, the NCAA, and more than 120 other NCAA Division I member schools (“Appellees”), alleging that' student athletes are “employees” within the meaning of the FLSA, 29 U.S.C. § 201. Accordingly, Appellants contend that the NCAA and its member schools violated the FLSA by not paying their athletes a minimum wage. Appellees moved to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).

The district court granted Appellees’ motions, holding that (1) Appellants lacked standing to sue any of the Appellees other than Penn, and (2) Appellants failed to state a claim against Penn because student athletes are not employees under the ELSA. This appeal followed.

II. Analysis

The district court first dismissed Appellants’ suit against all of the Appellees except Penn for lack of standing. We review de novo a district court’s dismissal of a complaint for lack of standing. Lewert v. P.F. Chang’s China Bistro, Inc., 819 F.3d 963, 966 (7th Cir. 2016).

In every case, the plaintiff has the burden of establishing the three elements' of standing: that “(1) [he or she] has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). To meet this burden and to survive a challenge to standing under Rule 12(b)(1), a plaintiff must plead sufficient. factual allegations, taken as true, that “plausibly suggest” each of these elements. Silha v. ACT, Inc., 807 F.3d 169, 174 (7th Cir. 2015).

Under the FLSA, alleged employees’ “injuries are only traceable to, and redressable by, those who employed them.” Roman v. Guapos III, Inc., 970 F.Supp.2d 407, 412 (D. Md. 2013). Appellants attended Penn. Their connection to the other schools and the NCAA is far too tenuous to be considered an employment relationship: “the only fair reading of the Amended Complaint is that [Appellants] are alleging that they are employees of only Penn, not of the other Defendants.” (R. 238 at 5.) Thus, Appellants have not plausibly alleged any injury traceable to, or redressable by, any defendant other than Penn. So they lack standing to sue those other defendants.

We now turn to the merits with regard to Penn, over which no one disputes that we have jurisdiction. The district court dismissed Appellants’ suit against Penn for failure to state a claim. We review de novo a district court’s dismissal of a complaint for failure to state a claim. Jackson v. Blitt & Gaines, P.C., 833 F.3d 860, 862 (7th Cir. 2016). In evaluating the sufficiency of the complaint, “we construe it in the light most favorable to the nonmoving party, accept well-pleaded facts as true, and draw all inferences in [the nonmoving party’s] favor.” Bell v. City of Chicago, 835 F.3d 736, 738 (7th Cir. 2016) (quoting Reynolds v. CB Sports Bar, Inc., 623 F.3d 1143, 1146 (7th Cir. 2010)). Although a party need not plead “detailed factual allegations” to survive a motion to dismiss, mere “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Instead, “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173-L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955).

The FLSA requires “[e]very employer” to pay “his employees” a minimum wage of $7.25 per hour. 29 U.S.C. § 206(a)(1)(c). Section 203(e)(1) defines “employee” in an unhelpful and circular fashion as “any individual employed by an employer.” 29 U.S.C. § 203(e)(1). Section 203(g) broadly defines “employ” as “to suffer or permit to work.” 29 U.S.C. § 203(g). Thus, to qualify as an employee for purposes of the FLSA, one must perform “work” for an “employer.” “Work” is not defined by the Act.

Under the FLSA, the plaintiff bears the burden of establishing that he or she performed work for an employer and is therefore entitled to compensation. Melton v. Tippecanoe Cty., 838 F.3d 814, 818 (7th Cir. 2016). Here, to survive the motions to dismiss, Appellants had to allege facts, which taken as true, establish that they were employees and performed work for Penn.

Although “[t]he Supreme Court has instructed the courts to construe the terms ‘employee’ and ‘employer’ expansively under the FLSA,” Vanskike v. Peters, 974 F.2d 806, 807 (7th Cir. 1992) (citing Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 326, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992)), the Court has also held that the definition of “employee” “does have its limits.” Tony & Susan Alamo Found. v. Sec’y of Labor, 471 U.S. 290, 295, 105 S.Ct. 1953, 85 L.Ed.2d 278 (1985). “Because status as an ‘employee’ for purposes of the FLSA depends on the totality of circumstances rather than on any technical label, courts must examine the ‘economic reality’ of the working relationship” between the alleged employee and the alleged employer to decide whether Congress intended the FLSA to apply to that particular relationship. Vanskike, 974 F.2d at 808.

To guide this inquiry, courts have developed a variety of multifactor tests. For example, we have applied a seven-factor test to determine whether migrant laborers are employees for purposes of the FLSA. Sec’y of Labor v. Lauritzen, 835 F.2d 1529, 1535-538 (7th Cir. 1987). Similarly, the Second Circuit created a “non-exhaustive set of [seven] considerations” to help determine when an intern is an employee under the FLSA. Glatt v. Fox Searchlight Pictures, Inc., 811 F.3d 528, 536-37 (2d Cir. 2015). Appellants liken student athletes to interns and contend that we should use the Second Circuit’s test set forth in Glatt to determine whether student athletes are employees under the FLSA. We disagree.

It is true, as Appellants note, that -the district court cited the Second Circuit’s test favorably. But the district court also declined to follow that test here. Instead, the court concluded correctly that our approach “to determining who is an employee under the FLSA is ... a flexible one.” (R. 2B8 at 15.) The court then discussed our decision in Vanskike, in which we rejected the strict application of a similar multifactor test in favor of a more flexible standard. 974 F.2d at 809.

We have declined to apply multifactor tests in the employment setting when they “fail to capture the true nature of the relationship” between the alleged employee and the alleged employer. Id. In Vanskike, we considered whether an inmate at a state prison was an employee under the FLSA. Id. at 806. Like Appellants here, the inmate in Vanskike urged us to apply a multifactor test to determine whether an employment relationship existed. We rejected the application of that test because it was “not the most helpful guide in the situation presented.” Id. at 809. Rather than follow a specific test, we examined the economic reality of the alleged employment relationship and concluded that the prisoner was not an employee. Id. at 809-10.

The district court followed the reasoning of Vanskike and held that the “factors used in the trainee and private-sector intern context fail to capture the nature of the relationship between the Plaintiffs, as student athletes, and Penn.” (R. 288 at 15). We agree with the district court and decline to apply the test set forth in Glatt here.

As the Supreme Court'has noted, there exists “a revered tradition of amateurism in collegé sports.” Nat’l Collegiate Athletic Ass’n v. Bd. of Regents of Univ. of Okla., 468 U.S. 85, 120, 104 S.Ct. 2948, 82 L.Ed.2d 70 (1984). That long-standing tradition defines the economic reality of the relationship between student athletes and their schools. To maintain this tradition' of amateurism, the NCAA and its member universities and colleges have created an elaborate system of eligibility rules. See O’Bannon v. Nat’l Collegiate Athletic Ass’n, 802 F.3d 1049, 1054-55 (9th Cir. 2015) (outlining the development of these rules). We have held that' these rules “define what it means to be an amateur or a student-athlete, and are therefore essential to the very existence of’ collegiate athletics. Agnew v. Nat’l Collegiate Athletic Ass’n, 683 F.3d 328, 343 (7th Cir. 2012). The multifactor test proposed by Appellants here simply does not take into account this tradition of amateurism or the reality of the student-athlete experience. In short, it “fail[s] to capture the true nature of the relationship” between student athletes and their schools and is not a “helpful guide.” Vanskike, 974 F.2d at 809.

A majority of courts have concluded— albeit in different contexts — that student athletes are not employees. See generally Adam Epstein and Paul M. Anderson, The Relationship Between a Collegiate Stu dent-Athlete and the University: An Historical and Legal Perspective, 26 Marq. Sports L. Rev. 287, 297 (2016) (collecting cases and concluding that “the courts have been consistent finding that student athletes are not recognized as employees under any legal standard, whether bringing claims under, workers’ compensation laws, the. NLRA or FLSA”). For example, most courts have held ttiat student athletes are not employees in the workers’ compensation context and are thus not entitled to compensation from their schools for injuries they suffer while playing their respective sports. See e.g., Rensing v. Ind. State Univ. Bd. of Trustees, 444 N.E,2d 1170 (Ind. 1983); State Comp. Ins. Fund v. Indus. Comm’n, 135 Colo. 570, 314 P.2d 288 (1957); Waldrep v. Tex. Emp’rs Ins. Ass’n, 21 S.W.3d 692 (Tex. App. 2000); Coleman v. W. Mich. Univ., 125 Mich.App. 35, 336 N.W.2d 224 (1983).

Although two courts reached the opposite conclusion over fifty years ago, they did so, at least in part, because the student athletes in those cases were also separately employed by their universities. See Univ. of Denver v. Nemeth, 127 Colo. 385, 257 P.2d 423 (1953); Van Horn v. Indus. Accident Comm’n, 219 Cal.App.2d 457, 33 Cal.Rptr. 169 (1963). Moreover, in 1965, the California legislature, in apparent disagreement with the California District Court of Appeal in Van Horn, amended the state’s labor code to explicitly exclude student-athletic participants as employees for purposes of worker’s compensation. See Shephard v. Loyola Marymount Univ., 102 Cal.App.4th 837, 125 Cal.Rptr.2d 829, 832-34 (2002) (discussing the legislature’s amendment).

The Department of Labor, through' its Field Operations Handbook (“FOH”), has also indicated that student athletes are not employees under the FLSA. The FOH “is an operations manual that provides Wage and Hour Division ... investigators and staff with interpretations of statutory provisions, procedures for conducting investigations, and general administrative guidance.” Field Operations Handbook (FOH), United States Dep’t of Labor, https://www.dol.gov/Whd/FOH/ index.htm. Appellants argue that the FOH “cannot form the basis for any dismissal.” (Appellants’ Reply Br. at 11.) We agree with Appellants that the provisions in this handbook are not dispositive, but they certainly are persuasive. In fact, we have cited this handbook as persuasive authority several times. See Driver v. AppleIllinois, LLC, 739 F.3d 1073, 1075 (7th Cir. 2014); Yi v. Sterling Collision Ctrs, Inc., 480 F.3d 505, 508 (7th Cir. 2007).

Chapter ten of the FOH “contains interpretations regarding the employment relationship required for the [FLSA] to apply.” Field Operations Handbook (FOH), § lOaOO. Section 10b24 specifically addresses the employment status of university or college students. This section is broken into two subsections — subsection (a) and subsection (b).

Subsection (a) discusses situations when university or college students are not treated as employees under the FLSA. Under this subsection, “University or college students who participate in activities generally recognized as extracurricular are generally not considered to be employees within the meaning of the [FLSA].” § 10b24(a) (emphasis added). This subsection then cross-references another section, § 10b03(e), which states the following:

As part of their overall educational program, public or private schools ... may permit or require students to engage in activities in connection with dramatics, student publications, glee clubs, bands, choirs, debating teams, radio stations, intramural and interscholastic athletics and other similar endeavors. Activities of students in such programs, conducted primarily , for the benefit of the participants as a part of the educational opportunities provided to the students by the school or institution, are not work of the kind contemplated -by [the FLSA] and do not result in an employer-employee relationship between the student and the school..,, ”

(emphasis added).

Subsection (b), “[o]n the other hand” discusses situations in which “an employment relationship will generally exist with regard to students_” § 10b24(b). Under this subsection, students who participate in a work-study program and, for example, “work at food service counters or sell programs or usher at athletic events, or who wait on tables or wash dishes in dormitories in anticipation of some compensation” are “generally considered employees under the [FLSA].” Id.

Appellants compare NCAA-regulated athletes to the work-study participants of § 10b24(b) and argue that these athletes should be deemed employees under the FLSA. In so doing, Appellants contend that § 10b24(a)’s reference to “extracurricular” activities and § 10b03(e)’s reference to “interscholastic athletics” refer only to “student-run, interscholastie club sports,” and not to NCAA-regulated sports. (Appellants’ Br. at 18). To support this argument, Appellants point to the many differences between club sports and NCAA-regulated sports — the most obvious of which being that club sports are largely student-run, whereas NCAA-regulated sports are heavily supervised by university-employed staff. We agree that NCAA-regulated sports are very different from club sports, but we disagree that this warrants different treatment under the clear language of the FOH.

Section 10b24(a) categorically states that students who participate in “extracurricular” activities are generally not considered employees. Section 10b03(e) includes “interscholastic athletics” in a list of activities that do not constitute “work.” These references are not limited to activities that are entirely student run. In fact, most of the activities included in § 10b03(e)’s list are not student run. Appellants have not presented any persuasive argument to suggest that the Department of Labor intended to limit this language to student-run activities. We therefore reject Appellants’ linguistic limitation.

Because NCAA-regulated sports are “extracurricular,” “interscholastic .athletic” activities, we do not believe that the Department of Labor intended the FLSA to apply to student athletes. We find the FOH’s interpretation of the student-athlete experience to be persuasive.

Appellants in this case have not, and quite frankly cannot, allege that the activities they pursued as student athletes qualify as “work” sufficient to trigger the minimum wage requirements of the FLSA-Student participation in collegiate athletics is entirely voluntary. Moreover, the long tradition of amateurism in college sports, by definition, shows that student athletes — like .all amateur athletes — participate in, their sports for reasons wholly unrelated to immediate compensation. Although we do not doubt that student athletes, spend a tremendous amount of time playing for their respective schools, they do so — and have done so for over a hundred years, under the NCAA — without any real expectation of earning an income. Simply put, student-athletic “play” is not “work,” at least' as the term is used in the FLSA, We therefore hold, as a matter of law, that student athletes are not employees and are not entitled to a minimum wage under the FLSA.

We briefly conclude by addressing Appellants’ argument that employment status is an inherently fact-intensive inquiry and thus should not be decided at the motion-to-dismiss stage. We reject this argument. Because we conclude, as a matter of law, that student athletes are not employees under the FLSA, no discovery or further development of the record could help Appellants. Appellants did not and could not allege facts, even taken as true, that give rise to a cause of action. See Vanskike, 974 F.2d at 813 (affirming the district court’s grant of a motion to dismiss because plaintiffs had failed to establish the existence of an employment relationship).

III. Conclusion

For the foregoing reasons, we AFFIRM the district court’s grant of Appellees’ motions to dismiss.

HAMILTON, Circuit Judge,

concurring.

I join Judge Kanne’s opinion for the court but wish to add a note of caution. The plaintiffs in this case were students who participated in track and field at the University of Pennsylvania. Like other Ivy League schools, Penn does not offer athletic scholarships. Also, as far as I know, track and field is not a “revenue” sport at Penn or any other school. In this case, therefore, the economic reality and the sometimes frayed tradition of amateurism both point toward dismissal of these plaintiffs’ claims. See generally, e.g., O’Bannon v. National Collegiate Athletic Ass’n, 802 F.3d 1049, 1054-55 (9th Cir. 2015) (holding that NCAA compensation rules for Division I men’s basketball players and Football Bowl Subdivision football players violated federal antitrust laws).

Because the plaintiffs in this case did not receive athletic scholarships and participated in a non-revenue sport, they pursued a broad theory. The logic of their claim would have included not only any college athlete in any sport and any NCAA division, but also college musicians, actors, journalists, and debaters. That broad theory is mistaken, as Judge Kanne’s opinion explains. I am less confident, however, that our reasoning should extend to students who receive athletic scholarships to participate in so-called revenue sports like Division I men’s basketball and FBS football. In those sports, economic reality and the tradition of amateurism may not point in the same direction. Those sports involve billions of dollars of revenue for colleges and universities. Athletic scholarships are limited to the cost of attending school. With economic reality as our guide, as I believe it should be, there may be room for further debate, perhaps with a developed factual record rather than bare pleadings, for cases addressing employment status for a variety of purposes.

      . Section 203(d) of the FLSA defines ''employer” as "any person acting directly or indirectly in the interest of an employer in relation to an employee....” 29 U.S.C. § 203(d).

      . The multifactor test rejected in Vanskike comes from Bonnette v. California Health & Welfare Agency, 704 F.2d 1465, 1470 (9th Cir. 1983).

      . Similarly, in Callahan v. City of Chicago, we rejected the application of Lauritzen’s multifactor test when the alleged employee’s suit didn’t "require a choice between employment and independent-contractor status.” 813 F.3d 658, 662 (7th Cir. 2016). Other courts have likewise rejected the stringent application of multifactor tests in certain settings. See e.g., Danneskjold v. Hausrath, 82 F.3d 37 (2d Cir. 1996); Doyle v. City of New York, 91 F.Supp.3d 480, 486 (S.D.N.Y. 2015) ("[I]n certain contexts, application of a multifactor test can cause a court to miss the forest for the trees.”).


author: POSNER, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Derek ORTIZ, Defendant-Appellant.
    No. 16-2373
    United States Court of Appeals, Seventh Circuit.
    Submitted November 28, 2016
    Decided December 6, 2016

      Bolling W. Haxall, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.
    Daniel J. Hillis, Attorney, Office of the Federal Public Defender, Springfield, IL, Thomas W. Patton, Attorney, Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellant.
    Before POSNER, KANNE, and ROVNER, Circuit Judges.
   POSNER, Circuit Judge.

This case is before us for the third time, requiring us again to consider the adequacy of the conditions of supervised released imposed by the district judge after we twice reversed and remanded for reconsideration of the conditions that he had opposed. See United States v. Thompson, 777 F.3d 368, 378-80 (7th Cir. 2015), and United States v. Ortiz, 817 F.3d 553 (7th Cir. 2016).

The appellant, Derek Ortiz, had been sentenced to prison for 135 months for three bank robberies. His appeals did not challenge his prison sentence, but only the conditions of supervised release imposed by the district judge. We twice reversed the judge’s supervised-released rulings and remanded for full resentencing. On the second remand the judge reimposed the 135-month prison sentence but altered the conditions of supervised release. Ortiz has again appealed, challenging four of the altered conditions: the condition permitting a probation office to visit the defendant “at any reasonable time” at home or “any reasonable location” specified by the probation officer; the condition requiring Ortiz to report “any significant change” in his economic circumstances; the condition requiring him to report to the probation officer “in the manner and frequency” directed by the officer; and the condition requiring him to participate in a substance abuse, an alcohol treatment, and a mental health treatment program approved by- the probation officer and to “abide by the rules and regulations of [each] program.”

We find no merit in the defendant’s objections. To begin with defense counsel informed the district court that he had attempted to" discuss the proposed conditions with Ortiz, and that Ortiz had refused to discuss them, though he did receive them from counsel. Neither Ortiz nor his counsel filed written objections to any of the proposed conditions. At the sentencing hearing, counsel expressed concern about ordering the defendant to engage in community service if he was unemployed; though Ortiz was told by the district judge at the hearing that this was Ortiz’s chance to question the conditions of supervised release, Ortiz did not do so. So he waived objections to the conditions, and in addition, despite what his counsel says in his appeal briefs, we can’t find any error in the conditions.

Counsel says for example that the word “reasonable” in the first condition is vague. He suggests that the judge should specify the hours in which the probation officer can visit the defendant; he suggests 6 a.m. to 10 p.m. Yet that span seems unreasonable. Most people are asleep at 6 a.m., and many people are asleep or at least in bed by 10 p.m. As for reasonable location, counsel has no suggestion except that the condition should “specify particular places.” But any such specification would depend on Ortiz’s work or -other schedule, and as-it will be years until he’s released from prison it is impossible now to specify particular places where the probation officer can visit him upon his release. Counsel raises a valid concern about a visit to Ortiz place of employment, if he is employed after his release from prison, because a visit by a’probation officer might make the employer think that Ortiz might be a criminal. But this is where the limit to “reasonable” place clicks in; visiting Ortiz at his place of employment might well be thought unreasonable, and if attempted would therefore give Ortiz grounds for asking the district judge to forbid such visitations.

Nor can we see any problem with requiring Ortiz to inform his probation officer of any “significant” change in his economic circumstances. Counsel objects that since he’s indigent he has no economic circumstances. But the condition will not take effect until he is released from prison, years hence (he’s served about half of his 135-month term). As a bank robber, he certainly demonstrated an interest in obtaining favorable economic circumstances, and it is appropriate that he should be required to apprise his probation officer of any nontrivial change in those circumstances after he’s released from prison.

Counsel objects to the third condition, which requires Ortiz to report to his probation officer “in the manner and frequency” that the probation officer directs. Again vague, to be sure, but given that it will be years before Ortiz is released from prison, it is impossible to be more specific.

As for the last condition, which requires Ortiz to participate in an alcohol treatment program approved by the probation officer, abide by the program’s rules and regulations, and participate in a mental health treatment program approved by the probation officer and abide by the rules and regulations of that program as well, Ortiz complains that without being informed of these programs’ rules and regulations now, he can’t know what he must do to. make sure he complies with them. But as before, he doesn’t need to be informed now of rules and regulations that will not come into force until, years from now, he’s released from prison. Upon release and entry into the programs, he’ll be told what their rules and regulations are and by obeying them will avoid getting into trouble.

Finding no merit whatever to counsel’s objections to the conditions of supervised release, we affirm the judgment of the district court.