United States Court of Appeals
                        For the First Circuit


No. 23-1819

                      UNITED STATES OF AMERICA,

                              Appellee,

                                  v.

                           KEVIN MILLETTE,

                        Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

              [Hon. Nancy Torresen, U.S. District Judge]


                                Before

                    Gelpí, Thompson, and Kayatta,
                           Circuit Judges.


     Edward S. MacColl, with whom Thompson, Bull, Bass & MacColl
LLC, P.A. was on brief, for appellant.

     Brian S. Kleinbord, Assistant United States Attorney, with
whom Darcie N. McElwee, United States Attorney, was on brief, for
appellee.


                          November 20, 2024
            GELPÍ,      Circuit      Judge.          Defendant-Appellant          Kevin

Millette ("Millette") was subject to several special conditions of

supervised release.         One special condition specifically prohibited

Millette from unsupervised contact with minors. The district court

found that Millette violated that condition.                    As a result, the

court revoked his supervised release and sentenced him to two

months' imprisonment followed by a five-year term of supervised

release with the same special condition reimposed.                   Millette now

appeals     the    revocation      of   his     supervised      release    and     the

reimposition of the special condition prohibiting him from having

unsupervised contact with minors. Upon review, we discern no error

and affirm.

                                   I. BACKGROUND

      A. Millette's Criminal History and Supervised Release

            We begin by recounting the facts.              In 2016, a one-count

information       was   filed      against    Millette,       charging    him     with

possession    of    child     pornography       in    violation    of     18    U.S.C.

§ 2252A(a)(5)(B).       According to the presentence report, Millette

possessed     24,277       still    images    and     1,022    videos     of      child

pornography.        When    law    enforcement       interviewed   him,        Millette

admitted, among other things, that viewing child pornography was

a "life-long" problem for him.                Subsequently, Millette pleaded

guilty to the possession of child pornography, and the district




                                        - 2 -
court sentenced him to 120 months' imprisonment followed by a

seven-year term of supervised release.1

           In   December   2020,    after   Millette   had   served   about

sixty-one months of his sentence, the district court granted

Millette's motion for compassionate release. To mitigate the risks

associated with Millette's release, the district court imposed

several special conditions.            The special condition at issue,

Special Condition 9, prohibits unsupervised contact with minors.

It specifically states:

           Defendant shall not associate, or have verbal,
           written,     telephonic     or      electronic
           communication, with persons under the age of
           eighteen, except in the presence of a
           responsible adult who is aware of the nature
           of the defendant's background and current
           offense, and who has been approved by the
           probation officer. This restriction does not
           extend to incidental contact during ordinary
           daily activities in public places (emphasis
           added).

Millette's daughter was a minor at the time of his release.

           In   January    2021,   a   probation   officer   reviewed   the

conditions of Millette's supervised release with Millette over the

phone.   Millette confirmed to the officer that he understood those

conditions.     About two months later, however, Millette's internet

activity revealed that he was searching for "tykable diapers" and


     1  This was Millette's second offense related to child
pornography. In 2010, Millette was convicted in Maine state court
for possession of sexually explicit materials depicting a minor
under the age of twelve.


                                   - 3 -
"ABDL," which stands for "Adult Baby Diaper Lovers."                      When a

probation officer confronted Millette about his internet usage in

April 2021, Millette admitted to the searches and was instructed

not to do it again.

           Millette continued to exhibit troublesome behavior over

the following year.         For example, in April 2021, his probation

officer again reprimanded Millette for his internet activity. And,

in May 2022, Millette disclosed to his supervising probation

officer that he had magazines that depicted both adults and minors

he found sexually attractive and that he had subscribed to the

magazine "Parenting" for "arousal purposes."

           On August 12, 2023, Probation Officer Kate Phillips ("PO

Phillips") made an unannounced visit to Millette's residence.

Millette lived with his mother, an adult whom the Probation Office

approved    to      supervise        Millette's    contact         with      his

then-fifteen-year-old daughter.          When PO Phillips entered the

house, she found Millette's teenage daughter on an inflatable

mattress in Millette's bedroom.          Millette's mother was found in

the backyard near the pool -- about twenty to thirty feet from the

house -- wearing a wet bathing suit.

           PO    Phillips    asked   Millette   where   he   had   slept     the

previous night, and he answered that he slept on the living room

couch while his daughter slept on a "cot" in his bedroom.                    But

when PO Phillips separately questioned Millette's mother, she


                                     - 4 -
answered that Millette slept in his room with his daughter.

Millette then admitted that his daughter and he slept in his

bedroom the night before, and on previous occasions.             PO Phillips

subsequently   moved   the    court   to   revoke   Millette's    supervised

release for violating Special Condition 9.

                         B. Revocation Hearing

           The district court held the final revocation hearing on

September 25, 2023.    At that hearing, PO Phillips testified that

Millette's mother had stated that Millette slept in the same room

as his daughter more than once.        PO Phillips also stated that she

had instructed Millette that it was his responsibility to leave a

room whenever he was in it with a minor and no supervisor was

present.

           Millette, through counsel, admitted that he and his

daughter slept on different beds in his bedroom without an approved

supervisor in the room, but challenged that his conduct violated

Special Condition 9.     Millette's counsel argued that his conduct

was consistent with Special Condition 9 because Millette was within

his mother's presence.       Arguing that the word "presence" made the

condition "inherently ambiguous," Millette's counsel stated that

the term is subject to different interpretations and that the

interpretation of that term in the defendant's favor would be that

an approved adult is present when within the same dwelling as

Millette, even if in a different room.        The government argued that


                                  - 5 -
Special Condition 9 is clear enough to prohibit Millette from

sleeping in the same room with a minor without supervision.

              The district court ultimately found that Millette's

conduct constituted a "clear violation" of Special Condition 9.

The district court explained that "any reasonable person would

see" that Millette's conduct constituted a violation in light of

his criminal background and the purpose behind conditions that

limit    interactions        with    minors   in    this     context -- namely,       to

protect them from a "serious epidemic" of adults who circulate

images of sexually assaulted children.                 The district court noted

that    Millette      has    contributed      to    such   epidemic   "now      twice."

Indeed, the district court reasoned, Millette's initial response

to lie to PO Phillips when she first questioned him about the

sleeping arrangement with his daughter indicated that he "knew

full well" that he violated Special Condition 9.                            While the

district      court     acknowledged      that     Special    Condition     9   may   be

"ambiguous in its outer recesses," it deemed Millette's conduct

"so far beyond the line" not to be "really debatable," emphasizing

that "no contact with minors means no minors sleeping in your

room."       Before sentencing, the district court noted that Millette

was    "in    denial"    about      his   conduct    and   urged   him     to   "behave

differently."

              For     said    violation,      the    district      court    sentenced

Millette to two months' imprisonment followed by five years of


                                          - 6 -
supervised release.      At the same time,       it reimposed Special

Condition 9 (now, Special Condition 8).

           Millette timely appealed.        We have jurisdiction over

this appeal pursuant to 

.

                             II. DISCUSSION

           Millette advances several related arguments on appeal.

First, he asserts that "in the presence of" is ambiguous and, if

the ambiguity is interpreted in his favor with the benefit of the

rule of lenity, then the district court erred in finding that he

violated Special Condition 9.       Second, Millette argues that the

district     court   erred   by    reimposing,     without   sufficient

explanation, an ambiguous condition that restricts his ability to

parent his child.    We address each argument in turn, applying the

appropriate standard of review.

                 A. Revocation of Supervised Release

           Millette's challenge to Special Condition 9 centers on

the phrase "in the presence of."          He argues that the phrase is

ambiguous.    And so, he contends, the rule of lenity dictates that

we construe the ambiguity in his favor, such that Special Condition

9 is satisfied when an approved adult is anywhere within the same

house.

           In a revocation proceeding, the government bears the

burden of proving by a preponderance of the evidence that the

defendant violated a condition of his release.        United States v.


                                  - 7 -
Teixeira, 

 (1st Cir. 2023); 

(e)(3).

While the Federal Rules of Evidence do not apply in revocation

proceedings, the government must present "reliable" evidence.

Teixeira, 

.         If the court finds a violation, it must

then decide whether to modify or revoke the defendant's supervised

release.     United States v. Colón-Maldonado, 

 (1st

Cir. 2020).

            "We review the district court's ultimate decision to

revoke    supervised     release    for     abuse      of   discretion,    and   the

underlying finding of a violation of supervised release for clear

error."    United States v. Dudley, 

 (1st Cir. 2024)

(quoting United States v. Wright, 

 (1st Cir. 2016)).

Within the limits of the abuse of discretion standard, we review

de novo "embedded questions of law" while "embedded findings of

fact     engender   clear-error      review."           United    States   v.    Del

Valle-Cruz, 

 (1st Cir. 2015) (quoting United States

v. Carrasco-De-Jesús, 

 (1st Cir. 2009)).

            The clear error standard is "exceedingly deferential."

United    States    v.   Matos,    

,    39–40    (1st   Cir.    2003)

(citation omitted).        This court will find that a district court

abused its discretion "only when [we are] left with a definite

conviction that 'no reasonable person could agree with the judge's

decision.'"     United States v. McCullock, 

 (1st




                                         - 8 -
Cir. 2021) (quoting United States v. Cruz-Ramos, 

(1st Cir. 2021)).

              A supervised release condition must be "sufficiently

clear   and    specific   to   serve    as     a   guide   for   the    defendant's

conduct."     

(f).       However, conditions of supervised

release need not be "precise to the point of pedantry" and must be

read "in a commonsense way."           United States v. Gallo, 

 (1st Cir. 1994); see also United States v. Cruz, 

 (1st Cir. 2022) (holding that a condition of supervised

release was not "unconstitutionally vague" based on a commonsense

and contextual reading).

              Millette did not and does not dispute his conduct.                 He

admits to having slept in the same room as his minor daughter on

multiple occasions without a supervisor in the room.                      His only

contention is that he did not violate Special Condition 9 because

his mother -- an approved "responsible adult" -- was at the home

while he and his daughter slept in the same room.                      The district

court disagreed with Millette, and in so doing, made clear its

view that "in the presence of" requires more than the "responsible

adult" be in a different room while Millette had prolonged contact

with a minor in his bedroom.

              We agree with the district court.             A reasonable person

would not conclude that A is in B's presence if A is in the bedroom

and B is elsewhere in the house, out of sight and earshot, much


                                       - 9 -
less out swimming in a pool.                "Presence" suggests a person's

"immediate vicinity."             See Presence, Merriam-Webster (Nov. 18,

2024),              https://www.merriam-webster.com/dictionary/presence

(emphasis     added).       And    even    if   a   less   immediate    scope   were

suggested in some context, here the context -- an attempt to ensure

that Millette was supervised when with a minor -- belies any notion

that Millette could closet himself away with a minor overnight,

free from observation by any adult.

              Millette's own conduct supported the district court's

interpretation of the condition as a sufficiently clear guide to

his behavior.       Millette initially lied to PO Phillips, telling her

that he slept on a couch in the living room while his teenage

daughter slept on a "cot" inside his bedroom.                  He later admitted

that he slept in the same room with his daughter only after his

mother had indicated as much.              The district court reasoned that

Millette's lie demonstrated that he "knew full well" that sleeping

alone in a room with his underaged daughter constituted a violation

of his supervised release.             We agree that Millette's perceived

need to cover up his sleeping arrangement provided support for the

conclusion that he himself read the condition as likely barring

such conduct.

              Millette argues that the district court committed an

error    of   law    by   refusing    to   apply     the   rule   of   lenity   when

interpreting Special Condition 9.               But even if we were to assume


                                      - 10 -
that lenity has a role to play that is not played by 

(f) in construing conditions of supervised release, by its

own terms lenity only applies where there is a "grievous ambiguity"

that cannot otherwise be resolved. United States v. Dion, 

 (1st Cir. 2022).      No such ambiguity exists here.

             B. Reimposition of the Special Condition

           Millette next argues that the district court erred by

reimposing Special Condition 9 (now, Special Condition 8) without

an adequate explanation.         Millette insists that the reimposition

of that condition is particularly inappropriate in this case

because it restricts his constitutionally protected interest in

parenting his minor daughter.        We disagree.

           We review "preserved objections to the imposition of a

special   condition     of   release     for   abuse   of    discretion    and

unpreserved objections for plain error."          United States v. Windle,

 (1st Cir. 2022) (citing McCullock, 

).     Here, we assume that         Millette   properly preserved his

challenge to the district court's decision to reimpose a condition

that limits his unsupervised contact with minors.                See United

States v. Mulero-Algarín, 

 (1st Cir. 2017).

                      1. Abuse of Discretion Review

           District     courts    have    "significant      flexibility"    in

imposing conditions of supervised release.          McCullock, 

 (quoting United States v. Marino, 

 (1st Cir.


                                   - 11 -
2016)).    That flexibility, however, is not without limits.                      New

(or reimposed) conditions of release must be "reasonably related"

to, among other things, "the nature and circumstances of the

offense and the history and characteristics of the defendant."                     

(d)(1), 3553(a)(1). Of note, too, is that conditions

must   "involve[]        no    greater    deprivation       of   liberty   than    is

reasonably necessary" to deter and rehabilitate the defendant and

"protect the public from [any] further crimes."                     See 

(d)(2), 3553(a)(2)(B)-(D).                 For that reason, we require

that the sentencing court "set forth a 'reasoned and case-specific

explanation' for the conditions it imposes."                     United States v.

DaSilva, 

 (1st Cir. 2016) (quoting United States v.

Perazza-Mercado, 

 (1st Cir. 2009)).

               A condition that limits Millette's unsupervised contact

with minors is indeed "reasonably related" to his specific offense

and his history and characteristics.               Millette has admitted to law

enforcement that viewing child pornography has been a "life-long"

problem        for     him.       And      despite     two       convictions      for

child-pornography-related offenses, his subsequent conduct -- his

internet activity in 2021, confessions to his supervising officer

in 2022, and inability or unwillingness to understand that it was

wrong to sleep in a bedroom with his 15-year-old daughter without

a supervisor -- suggests that this continues to be a problem for

him.      In    that    way,   Special     Condition    9    (currently,    Special


                                         - 12 -
Condition 8) is related to Millette's specific offense and history

and is also necessary to protect the public from further crimes.

           In   addition,      the    district    court's    explanation    for

reimposing the special condition was adequate.                 The requirement

that the district court explain its reasoning for imposing (or

reimposing) a condition is satisfied "without a written or oral

explanation of the reasons supporting the condition if we can infer

the court's reasoning" from examining the record.                    See United

States v. Garrasteguy, 

 (1st Cir. 2009); see also

United States v. Vega-Rivera, 

 (1st Cir. 2017).

Before   rendering     its   sentence,    the     district   court    expressed

concerns that "there is serious epidemic" of people sexually

assaulting children and circulating those images and noted that

Millette has "fallen into it now twice."           The court also concluded

that Millette was in "denial" about the seriousness of his recent

conduct.   Against the backdrop of Millette's criminal history and

more recent conduct, we can infer from the record that Millette

poses an ongoing risk of danger to minors.            Thus, we find that the

explanation     here   was     sufficient      considering     the    extensive

evidentiary     record       and     Millette's     criminal     history    and

characteristics.

           Moreover, the special condition does not overly restrict

Millette's constitutional interest in parenting his daughter.

Conditions that "would impair a defendant's relationship with his


                                      - 13 -
child" require a "greater justification."                   United States v. Del

Valle-Cruz, 

 (1st Cir. 2015). Conditions that limit

a defendant's association with minors, including his children, are

proper   when,   among       other    things,       "the    defendant's    conduct

otherwise indicates an enhanced risk to minors."                United States v.

Pabon, 

 (1st Cir. 2016).                     Such conditions "are

sufficiently circumscribed when they do not place an outright ban

on association with minors, but only curtail association, such as

by requiring pre-approval by the probation officer."                   

(internal quotation marks and citations omitted).                    It is an added

"safeguard" that "defendant can petition the district court to

modify   the   condition      in     the    event    that    approval     has   been

unreasonably withheld."        

.

           In Millette's case, the condition does not impose an

"outright ban" on him from having any contact with his daughter.

See 

.       It requires only that his interactions with her

and other minors happen under the supervision of a responsible

person approved by the probation officer. See, e.g., United States

v.   Tilley,   

    (1st    Cir.    2024)    (upholding   a

condition prohibiting unsupervised contact with minors).                    That is

a proper limitation considering that Millette continues to pose an

"enhanced risk to minors," as evidenced by his previous internet

activity and more recent confessions to his supervising officer.

Further, as the record reflects, Millette's probation officers did


                                      - 14 -
not "unreasonably withhold permission" from Millette "to see his

own children."    United States v. Acevedo-Osorio, 

,

138 (1st Cir. 2024) (quoting United States v. Mercado, 

 (1st Cir. 2015)).        Rather, he had regular supervised

visits with his daughter.

          Since    the   record    justifies   limiting   Millette's

unsupervised contact with minors, we find that the district court

did not abuse its discretion in reimposing such a condition.

                            III. CONCLUSION

          For the foregoing reasons, we affirm the revocation of

Millette's supervised release and reimposition of a condition that

limits his contact with minors.




                                - 15 -