USA v. Dates

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
UNITED STATES OF AMERICA,
Plaintiff,
vs.
No. CR 12-2211 JB
RICHARD J. DATES,
Defendant.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on the corrected second Petition for Revocation
of Supervised Release, filed July 17, 2025 (Doc. 249)(“Petition for Revocation”). The Court holds
an evidentiary hearing on October 27, 2025. 	Clerk’s Minutes at 1, filed October 27, 2025
(Doc. 267)(“Clerk’s Minutes”); Draft Hearing Transcript of Proceedings at 1 (taken October 27,
2025)(Court)(“2025 Tr.”).1 	The primary issues are: (i) whether Defendant Richard J. Dates
violates his modified conditions of supervised release, where Dates searches for written materials,
reads written materials, and saves images of written materials describing historical acts of sexual
violence; and (ii) whether Dates violates his modified conditions of supervised release, where
Dates searches for images of a serial killer/sex offender’s adolescent victim, views images of serial
killer/sex offender’s adolescent victim, and saves an image of a serial killer/sex offender’s
adolescent victim. 	The Court concludes that: (i) Dates violates his modified conditions of
supervised release, where Dates searches for written materials, reads written materials, and saves
images of written material describing historical acts of sexual violence, because Plaintiff United
1 The Court’s citations to the transcript of the hearing refer to the court reporter’s original,
unedited version. Any final transcript may contain slightly different page and/or line numbers.
Case 1:12-cr-02211-MLG Document 286 Filed 02/25/26 Page 1 of 43

- 2 -
States of America shows, by a preponderance of evidence, that the written material Dates saves to
his cellphone “depicts” sadistic or masochistic abuse within the definition of 18 U.S.C. § 2256;
(ii) Dates does not violate his modified conditions of supervised release, where Dates searches for
a images of a serial killer/sex offender’s adolescent victim, views images of a serial killer/sex
offender’s adolescent victim, and saves images of a serial killer/sex offender’s adolescent victim,
because the United States does not show, by a preponderance of evidence, that the image Dates
saves to his cellphone depicts sexually explicit conduct within the definition of 18 U.S.C. § 2256
(iii) Dates commits a Grade C violation pursuant to the United States Sentencing Guidelines
(“U.S.S.G.” or the “Guidelines”) policy statement § 7B1.1; (iv) Dates’ criminal history category
is I; and (v) Dates’ grade C violation and criminal history category of I, under § 7B1.1 of the
Guidelines establishes a revocation imprisonment range of 3 to 9 months. Pursuant to 18 U.S.C.
§ 3583(e)(3), the maximum term of imprisonment upon revocation of supervised release is 24
months.
FACTUAL BACKGROUND
In the Factual Background, the Court: (i) makes its findings of fact related to Dates’
personal background and criminal history; (ii) discusses Dates’ original crime of Distribution of a
Visual Depiction of a Minor Engaged in Sexually Explicit Conduct in violation of 18 U.S.C.
§§ 2252(a)(2), 2252(b)(1), 2256; and (iii) discusses Dates’ judgment and supervised release
conditions. 	The Court uses facts in the Presentence Report, disclosed on January 13, 2016
(“PSR”), as findings of fact. See Federal R. Crim. P. 32(i)(3)(A) (“[The court] may accept any
undisputed portion of the presentence report as a finding of fact.”). At the sentencing, in 2016, the
Court adopts the PSR’s findings as its own, and these are still helpful in providing context. See
Clerk’s Minutes at 1, filed September 15, 2016 (Doc. 161).
Case 1:12-cr-02211-MLG Document 286 Filed 02/25/26 Page 2 of 43

- 3 -
1. 	Personal Background.
1. 	Dates has a history of mental health issues. See PSR ¶ 57, at 11.
2. 	Specifically, Dates has a history of suicidal thoughts and a history of depression.
His Sister confirms this history. See PSR ¶ 57, at 11-12.
3. 	While initially incarcerated in Torrance County Detention Center in Estancia, New
Mexico, Dates “displayed behavior that prompted medical staff to conduct a psychological
evaluation.” PSR ¶ 58, at 12.
4. 	Dates refuses to corporate, however, and the providers defer a formal diagnosis.
See PSR ¶ 58, at 12.
5. 	As to Dates’ sexual history, he “‘always knew something was wrong,’” PSR ¶ 61,
at 12 (quoting Dates), but Dates remains abstinent and never engages in sexual intercourse, see
PSR ¶ 60, at12.
6. 	Dates knows his sexual desires towards children are wrong and that the desires
contribute to “‘lifelong problems with sexual functioning.’” PSR ¶ 61, at 12 (quoting Dates).
7. 	In 1982, Dates seeks treatment for his “issues,” but the treatment is unsuccessful.
PSR ¶ 61, at 12.
8. 	The treatment is not a success, because of “‘barriers,’” including fear that his
providers are “‘mandatory reporters.’” PSR ¶ 61, at 12 (quoting Dates).
9. 	Dates is educated. See PSR ¶ 65, at 13.
10. 	Dates holds a bachelor’s degree in biology, a master’s degree in education, and a
doctorate degree in chiropractic. See PSR ¶ 65, at 13.
11. 	Additionally, Dates conducts research at the University of Chicago, where he
studies “human deviance and medicine.” PSR ¶ 65, at 13.
Case 1:12-cr-02211-MLG Document 286 Filed 02/25/26 Page 3 of 43

- 4 -
12. 	Dates attends several universities where he does not obtain degrees, and he spends
roughly twenty-three years enrolled in higher education institutions. See PSR ¶ 65, at 13.
13. 	Lastly, Dates’ has a teaching certificate, but it is no longer active following his
arrest. See PSR ¶ 65, at 13.
14. 	Dates works at several schools. See PSR ¶¶ 68-73, at 14-15.
15. 	Dates earliest employment is at the Chicago Academy of Arts in Chicago, Illinois,
from 2002 to 2003. See PSR ¶ 73, at 14.
16. 	From September, 2003, to May, 2005, Dates works at the Ramah Navajo School in
Pine Hill, New Mexico. See PSR ¶ 72, at 14.
17. 	In 2007, Dates works at the Liberal High School in Liberal, Kansas. See PSR ¶ 71,
at 14.
18. 	From 2007 to 2012, Dates works at the McKinley Public Schools in Gallup, New
Mexico. See PSR ¶ 70, at 14.
19. 	Dates works at the Cibola Beacon Newspaper in Grants, New Mexico, from April
to August of 2012. See PSR ¶ 69, at 14.
2. 	Criminal History.
20. 	Dates’ criminal history is limited. See PSR ¶¶ 42-47, at 9-10.
21. 	Dates does not have a history of: (i) juvenile adjudications, see PSR ¶ 42, at 9;
(ii) adult criminal convictions before the police arrest him in 2012, see PSR ¶ 43, at 9; (iii) other
criminal conduct, see PSR ¶ 45, at 9; (iv) pending charges, see PSR ¶ 46, at 10; or (v) other arrests,
see PSR ¶ 47, at 10.
Case 1:12-cr-02211-MLG Document 286 Filed 02/25/26 Page 4 of 43

- 5 -
22. 	On August 3, 2015, Dates pleads guilty to Distribute of a Visual Depiction of a
Minor 	Engaged 	in 	Sexually 	Explicit 	Conduct 	under 	18 	U.S.C. 	§ 2252(a)(2), 	18 	U.S.C.
§ 2252(b)(1), and 18 U.S.C. § 2256. See PSR ¶ 2, at 4.
23. 	The Department of Homeland Security (“DHS”) investigates Dates in 2013 for his
association with “a network of individuals producing and trading images of child pornography
both domestically and internationally.” PSR ¶ 11, at 4.
24. 	The individuals in this network “were also chatting online about the cannibalization
of the children in the images.” PSR ¶ 11, at 4.
25. 	On August 23, 2012, DHS agents contact Dates and meet with him to discuss his
affiliation with Geoffrey Portway, whom DHS arrests in connection with possession and
distribution of child pornography. See PSR ¶ 12, at 5.
26. 	Dates states that, during this meeting, Portway sends him “images of child
pornography; however, [] he deleted the images.” PSR ¶ 12, at 5.
27. 	After Dates meet with the DHS agents, the investigators observe Dates place a trash
bag in a dumpster that contains “a destroyed hard drive.” PSR ¶ 13, at 5.
28. 	Later, “Dates admitted he destroyed the hard drive following his initial contact with
[] agents and that the hard drive had contained several images of child pornography.” PSR ¶ 13,
at 5.
29. 	When DHS searches Dates’ home, pursuant to a search warrant, the agents locate
“two thumb drives, two laptop computers, several CD’s, a digital camera, a voice recorder, and
several DVD’s.” PSR ¶ 14, at 5.
30. 	After searching Dates’ items, the “agents determined the defendant was in
possession of child pornography images.” PSR ¶ 14, at 5.
Case 1:12-cr-02211-MLG Document 286 Filed 02/25/26 Page 5 of 43

- 6 -
31. 	In addition to the digital files, the agents “found nearly 40 three-ring binders
containing pornographic images, some of which included child pornography,” at Dates’ secondary
residence in Ramah, New Mexico. PSR ¶ 15, at 5.
32. 	On binder “described how to butcher and strangle children.” PSR ¶ 15, at 5.
33. 	After Dates hears about investigators executing a search warrant, he waives his
rights and agrees to an interview with agents. See PSR ¶ 16, at 5-6.
34. 	In the interview, Dates “admitted he preferred images of children between the ages
of 7 to 20 years and frequently used the images to masturbate.” PSR ¶ 17, at 6.
35. 	“Dates also admitted he had discussed and fantasized about young people being
raped, butchered, cooked, and severed. Dates admitted he had photo-shopped several images of
butchered body parts and had shared those images over the internet.” PSR ¶ 17, at 6.
36. 	As 	examples 	of 	Dates’ 	fantasies, 	DHS 	describes 	the 	file 	“boy 	preteen
bound.00001.jpeg” depicting a “prepubescent male laying face down bound with his hands behind
his back and tied to his ankles.” PSR ¶ 19, at 6.
37. 	Furthermore, 	Dates 	also 	possesses 	several 	photo-shopped 	images 	depicting
“mutilated, dismembered, and cooked bodies.” PSR ¶ 19, at 6.
38. 	One image depicted the Norman Rockwell painting ‘Freedom From Want’ which
had been photoshopped to replace the turkey on the serving platter with a burnt baby. 	Another
image depicted a child on a rotisserie spit over a barbecue.” PSR ¶ 19, at 6.
3. 	Supervised Release.
39. 	A standard condition of supervision for Date is that he “shall answer truthfully all
inquiries by the probation officer and follow the instructions of the probation officer.” Judgment
in a Criminal Case at 3, filed December 1, 2016 (Doc. 163)(“Judgment”).
Case 1:12-cr-02211-MLG Document 286 Filed 02/25/26 Page 6 of 43

- 7 -
40. 	A special condition of supervision for Dates is that he is “prohibited from viewing
or possessing any material that depicts sexually explicit conduct as defined in 18 U.S.C. 2256,
including images, books, writings, drawings, video games, or videos depicting actual sexual
intercourse. This also includes computer or computer-generated images or pictures, whether made
or produced by electronic, mechanical, or other means.” Judgment at 5.
41. 	A special condition of supervision for Dates is that he is “prohibited from viewing
or possessing any material including photographs, images, books, magazines, writings, drawings,
newspapers, video or video games, depicting and/or describing any nude or partially nude
individuals.” Judgment at 5.
42. 	On August 21, 2024, Dates pleas guilty to violating his standard condition by failing
to answer truthfully all the probation office’s inquiries and follow the probation office’s
instructions. See Judgment in a Criminal Case at 1 (Doc. 245).
43. 	In July, 2025, Dates performs an internet search for “Dean Corrl.” 2025 Tr. at 7:24-
25 (Roybal).2
44. 	Corrl is “famous” and known to “sexually abuse and sexually torture minor boys
before he would kill them.” 2025 Tr. at 8:1-5 (Roybal).3
2 During the October 27, 2025, hearing, the United States states that Dates performs an
internet search for Dean Corrl. See 2025 Tr. at 7:24-25 (Roybal). Dates does not dispute that he
performs an internet query of Dean Corrl. Accordingly, the Court accepts as true the United States’
undisputed statement of fact.
3 The United States repeats that Corrl is a serial killer and known for a particular pattern of
violence. See 2025 Tr. at 8:1-5 (Roybal). Dates does not dispute this characterization of Corrl.
Accordingly, the Court accepts as true the United States’ undisputed statement of fact.
Case 1:12-cr-02211-MLG Document 286 Filed 02/25/26 Page 7 of 43

- 8 -
45. 	Dates searches “dean corll polaroid boy.” 2025 Tr. at 8:11-13 (Roybal).4
46. 	The individual in the image the United States presents as “polaroid boy” is not
naked. 2025 Tr. at 8:12-16. 5
47. 	Dates takes a screenshot of a Wikipedia article detailing Corrl’s assault of three
children. See 2025 Tr. at 9:8-10 (Roybal).6
4 The United States shares her screen with the Court displaying Dates’ various internet
searches. One of the that searches she highlights is “dean corll polaroid boy.” 2025 Tr. at 8:10-
11 (Roybal). Dates does not that dispute he searches for “dean corll polaroid boy.” The United
States also represents to the Court that “there is no dispute or objection that the material that
probation has presented to the parties is authentic.” 2025 Tr. at 6:11-21 (Roybal). Dates does not
dispute the United States’ representation or the authenticity of the evidence that the United States
displays from its screen. 	Accordingly, the Court accepts as true the United States’ undisputed
statement of fact.
5 The parties do not agree whether the boy in the image is nude. Date argues that the “child
is clothed.” 	2025 Tr. at 10:2-3 (Elsenheimer). 	The United States states that “this is more of a
question mark for me” whether the image contains nudity. 2025 Tr. at 8:15-16 (Roybal). Dates
points to the United States’ response as evidence that the United States cannot meet its burden. As
a matter of law, the Court agrees with Dates that the United States’ uncertainty constitutes evidence
that it fails to carry its burden of proving, by a preponderance of the evidence, that the photographs
depict nudity. See 2025 Tr. at 10:2-3 (Elsenheimer).
As a factual matter, the Court finds that the child in the image is not nude. The Merriam-
Webster Dictionary defines “nudity” as “the quality or state of being nude.” 	Nudity, Merriam-
Webster.com 	Dictionary, 	Merriam-Webster, 	https://www.merriam-
webster.com/dictionary/nudity. (last visited on Jan. 7, 2026). The dictionary defines “nude” as
“2a: devoid of a natural or conventional covering.” 	Nude, Merriam-Webster.com Dictionary,
Merriam-Webster, https://www.merriam-webster.com/dictionary/nude. 	(last visited on Jan. 7,
2026). The Court finds that something covers the boy in the picture. Whether that something is a
blanket or another covering, the Court concludes it cannot say the boy is “devoid” of covering.
6 The United States displays the screenshot for the Court, and Dates does not dispute the
screenshot, but only how the United States characterizes the content. 	See 2025 Tr. at 10:18-21
(Elsenheimer)(“And with regard to the yes, it a Wikipedia entry, there is nothing about that writing
that might depict . . . .”).
Case 1:12-cr-02211-MLG Document 286 Filed 02/25/26 Page 8 of 43

- 9 -
48. 	The paragraph “depicts” a historical account of assault, torture, and rape. 2025 Tr.
at 16:19-24 (Elsenheimer).7
7 The parties disagree whether the article “depicts” Corrl’s conduct. 	The United States
argues that the Wikipedia article “depicts” the assault and torture. 	2025 Tr. at 15:21-23
(Roybal)(“If we’re going to get into a dispute about whether the words summary and depiction are
different, then I think we’ve gone too far.”). Dates, in contrast, does not see the Wikipedia article
as depicting anything; instead, he characterizes the article as “summarizing” or “describing” the
assault and torture. 	2025 Tr. 	at 14:10-11 (Elsenheimer)(arguing that the text “doesn’t depict
assault and the torture”). Notably, Dates does not dispute that the content includes assault, torture,
and rape. 	According to Dates, whether the paragraph “describes” or “depicts” is important,
because Dates’ special conditions prohibit him from viewing or possessing any material that
depicts sexually explicit conduct as 18 U.S.C. § 2256’s defines that term. 	2025 Tr. at 6:25-7:6
(Elsenheimer).
The thrust of Mr. Elsenheimer’s argument is that: (i) the Wikipedia article does not “depict
sexually explicit conduct”; and (ii) the conduct does not fall into the definition of sexually explicit
conduct under 18 U.S.C. 2256. 2025 Tr. at 6:25-7:6 (Elsenheimer). The Court addresses the first
part of Dates’ argument, here, regarding the question whether the paragraph “depicts” conduct,
and leaves the legal question whether the content is sexually explicit conduct under 18 U.S.C.
§ 2256 for the following analysis.
The Merriam-Webster Dictionary defines “depict” as “1: to represent by or as if by a
picture” or “2: Describe Sense 1.” Depict, Merriam-Webster.com Dictionary, Merriam-Webster,
https://www.merriam-webster.com/dictionary/depict (last visited on Jan. 7, 2026). Describe Sense
1 is “to represent or give an account of in words.” Describe, Merriam-Webster.com Dictionary,
Merriam-Webster, https://www.merriam-webster.com/dictionary/describe (last visited on Jan. 7,
2026). At the outset, Dates’ argument falters, because the dictionary definition of “depict” relies
on the term “describe,” undermining the definitional distinction on which Dates relies. See also
Depict, Oxford English Dictionary Online, https://www.oed.com/dictionary /depict (last visited on
Feb. 25, 2026)(defining “depict” as “2. To represent or portray in words; to describe graphically”).
As for the word “summary,” when used as noun, it is “an abstract, abridgment, or compendium
especially of a preceding discourse.” 	Summary, Merriam-Webster.com Dictionary, Merriam-
Webster, https://www.merriam-webster.com/dictionary/summary. 	(last visited on Jan. 7 2026).
With these definitions in mind, the Court considers the Wikipedia article’s text.
The Court considers the entire text when making its factual determination. Specifically,
the Court considers how the first paragraph’ “intention” increases the vividness of the second
paragraphs “action.” 2025 Tr. at 12:25-13:3 (Roybal). The first paragraph, as the United States
highlights, states:
Corll agreed and untied Henley, then separately carried Kerley and Williams into his
bedroom and tied them to opposite sides of his torture board: Kerley on his stomach;
Williams on her back.[] A transistor radio was placed between Williams and Kerley and
the volume turned to maximum to muffle any potential screaming. Corll also removed the
Case 1:12-cr-02211-MLG Document 286 Filed 02/25/26 Page 9 of 43

- 10 -
PROCEDURAL BACKGROUND
In this section, the Court describes the Judgment. 	See Judgment at 1. 	Next, the Court
describes the Request for Modifying the Conditions or term of Supervision with the Consent of
the Offender, filed February 19, 2021 (Doc. 201)(“Petition for Modification”). Then, the Court
describes the second Request for Modifying the Conditions or terms of Supervision with Consent
of the Offender, filed on February 18, 202 (Doc. 204)(“Second Petition or Modification”). Next,
the Court discusses three revocation petitions that the USPO files including the first Petition for
adhesive tape from Kerley’s mouth before informing him of his intentions to ‘look up’ his
anus as Henley again began inhaling paint fumes from a paper bag.
Dean Corll, Wikipedia, https://en.wikipedia.org/wiki/Dean_Corll (last visited Jan. 7, 2025). On
the Court’s reading, this paragraph alone properly may be understood to “represent . . . as if by a
picture.” 	Depict, Merriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam-
webster.com/dictionary/depict. (last visited on Jan. 7, 2026). Even assuming that the historical
nature of the account diminishes its pictorial vividness, the second paragraph eliminates any
remaining uncertainty. The second paragraph states:
Corll then handed Henley an eighteen-inch hunting knife and ordered him to cut
away Williams’s clothes,[] insisting that, while he would rape and kill Kerley, Henley
would do likewise to Williams. He then shouted, “What are you waiting for?”[] Henley
began cutting away Williams’s jeans and underwear as Corll placed the pistol on a bedside
table, undressed and began to assault and torture Kerley. Both Kerley and Williams had
awakened by this point. Kerley began writhing, pleading and shouting as Williams, whose
gag Henley had removed, lifted her head and asked Henley, “Is this for real?” to which
Henley answered, “Yes.” Williams then asked Henley: “Are you going to do anything
about it?”
Dean Corll, Wikipedia, https://en.wikipedia.org/wiki/Dean_Corll (last visited Jan. 7, 2025). Dates
argues that “saying an individual was tortured would not qualify as . . . depicting the torture,”
2025 Tr. at 16:9-12 (Elsenheimer), but concedes that if the article “went into graphic depiction”
of the torture, the article would “depict” the torture, 2025 Tr. at 16:19-21 (Elsenheimer). 	The
Court does not see how a narrative recounting an assailant “cutting away” a victim’s clothing with
an “eighteen-inch hunting knife,” while the victim writhes, pleads, and shouts beneath a gag, does
not 	“depict” 	graphically 	assault 	and 	torture. 	Dean 	Corll, 	Wikipedia,
https://en.wikipedia.org/wiki/Dean_Corll (last visited Jan. 7, 2025). That Dates finds this narrative
on Wikipedia does not change the Court’s conclusion about his “depicts’” argument. 2025 Tr. at
16:1-16. 	Accordingly, the Court concludes that the Wikipedia article “depicts” assault, torture,
and rape. Judgement at 5.
Case 1:12-cr-02211-MLG Document 286 Filed 02/25/26 Page 10 of 43

- 11 -
Revocation of Supervised Release, filed January 11, 2024 (Doc. 207)(“First Violation”); the
Amended Petition for Revocation of Supervised Release, filed April 19, 2024 (Doc. 227)(“Second
Violation”); and third, and current, Petition for Revocation.
1. 	The Judgment.
On December 1, 2016, the Honorable M. Christina Armijo, Chief United States District
Judge for the United States District Court for the District of New Mexico, sentences Dates to a
term of ten years of imprisonment. 	See Judgment at 2. 	In the Judgment, Chief Judge Armijo
imposes several special conditions, including that Dates: (i) ”must participate in and successfully
complete an outpatient mental health treatment program approved by the probation officer”;
(ii) ”must undergo a risk assessment and/or psychosexual evaluation and begin participating in sex
offender treatment, consistent with the recommendations of the assessment and/or evaluation”;
and (iii) ”is prohibited from viewing or possessing any material including photographs, images,
books, writing, drawings, videos or video games, depicting and/or describing sexually explicit
conduct or child pornography as defined in 18 U.S.C. 2256.” Judgment at 5.
2. 	The First Petition for Modification to the Conditions of Supervised Release.
On February 19, 2021, the USPO petitions the Court to modify Dates’ conditions or terms
of supervised release. 	See Petition for Modification at 1. 	In the Petition for Modification, the
USPO requests that the Court impose location monitoring for a period of three months, because
Dates is not able to complete successfully a term in a residential reentry center (“RRC”) before the
Bureau of Prisons release him into the community. 	Petition for Modification at 2. 	The USPO
recommends location monitoring, furthermore, because the USPO considers Dates “a high-risk
case,” and Dates does participate in any sex offender treatment while in custody. 	Petition for
Modification at 2. Both the Assistant United States Attorney and Dates agree to the modification.
Case 1:12-cr-02211-MLG Document 286 Filed 02/25/26 Page 11 of 43

- 12 -
See Petition for Modification at 2. 	On February 25, 2021, the Court approves the Petition for
Modification. See Order Modifying (Doc. 202).
3. 	The Second Petition for Modification to the Conditions of Supervised Release.
On February 18, 2022, the USPO again petitions the Cout to modify Dates’ conditions or
terms of supervised release. See Second Petition for Modification at 1. In the Second Petition for
Modification, the USPO requests that the Court restrict Dates from consuming alcohol and that
Dates submits to alcohol testing. See Second Petition for Modification at 1. The USPO requests
alcohol monitoring and testing, because, during a home visit, the probation officer observes a
journal entry from Dates depicting “the physical assault of children in preparation for consumer
them,” and Dates’ counselor expresses concern that “alcohol will lower his inhibitions enough to
increase the likelihood that he will continue to write violent, sexual journal entries.” 	Second
Petition for Modification at 1-2. 	Additionally, journal entries describe “a sexual encounter
between two grown men and a six-year-old boy, which resulted in murder of the young boy.”
Second Petition for Modification at 1. 	Dates agrees to the USPO’s modifications, see Second
Petition for Modification at 2, and the Court approves the modifications on February 24, 2022, see
Order Modifying (Doc. 205).
4. 	The First Violation.
On January 11, 2024, the USPO files the first Petition for Revocation of Supervised
Release (Doc. 207)(“First Petition for Revocation”). 	The USPO files the First Petition for
Revocation, because Dates’ cellphone monitoring software reveals that Dates is browsing “Greek-
Love.com.” 	First Petition for Revocation at 1. Greek-love.com describes Greek Love “as love
between a boy, typically adolescent and an older adolescent or man.” First Petition for Revocation
at 1. 	The monitoring software also indicates that Dates “viewed two pictures of an adolescent
Case 1:12-cr-02211-MLG Document 286 Filed 02/25/26 Page 12 of 43

- 13 -
male with his penis exposed and a group picture of three males and one young boy, all of whom
were naked.” First Petition for Revocation at 1. Furthermore, the probation office finds at Dates’
home books like “‘The Witch’s Guide to Cooking with Childre,’” and books “‘depicting children
in various degrees of captivity’” and “scantily clad young adolescents.” 	First Petition for
Revocation at 1.
5. 	The Second Violation.
On April 19, 2024, the USPO files the Amended Petition for Revocation of Supervised
Release (Doc. 227)(“Amended Petition for Revocation”). The USPO files the Amended Petition
for Revocation alleging additional violations of: (i) ”viewing or possessing any material including
photographs, images, books, writings, drawings, videos or video games, depicting and/or
describing sexually explicit conduct or child pornography as defined in 18 U.S.C. 2256”; and
(ii) not answering “truthfully all inquiries by the probation officer and follow the instruction of the
probation officer.” Amended Petition for Revocation at 1-2. Specifically, on March26, 2024, the
USPO finds books at Dates’ homes containing images of naked adolescents and “literature
appearing to justify viewing child pornography.” 	Amended Petition for Revocation at 2. 	“The
defendant has been continuously instructed by his probation officer not to possess a book depicting
nudity.” Amended Petition for Revocation at 2. At this time, the probation officer reviews with
Dates the document he signed on February 26, 2021, acknowledging his requirement to follow the
USPO’s instructions. See Amended Petition for Revocation at 2.
6. 	The Third Violation.
On July 16, 2025, the USPO files the second Petition for Revocation of Supervised Release
(Doc. 247)(“Second Petition for Revocation”), and on July 17, 2025, the USPO files the Petition
Case 1:12-cr-02211-MLG Document 286 Filed 02/25/26 Page 13 of 43

- 14 -
for Revocation. 	The Petition for Revocation alleges that Dates violates the following special
condition:
You are prohibited from viewing or possessing any material that depicts
sexually explicit conduct as defined in 18 U.S.C. 2256, including images, books,
writings, drawings, video games, or videos depicting actual sexual intercourse.
This also includes computer or computer generated images or pictures, whether
made or produced by electronic, mechanical, or other means. Should the sex
offense-specific assessment determine this factor is not a risk, then this condition
shall not be enforced.
Petition for Revocation at 1-2. As evidence, the USPO states that Dates’ cellphone history reveals
Dates “conducted internet queries for the sadistic serial killer, ‘Dean Corll,’ who abducted,
sexually assaulted, tortured and murdered teen boys and young men.” Petition for Revocation at
2. 	Additionally, the USPO alleges, the monitoring software documents that Dates took a
screenshot of text “describing a teenage girl and boy being tied to a ‘torture board.’” Petition for
Revocation at 2. The USPO continues stating that, in the text, Corll “informs the boy he wanted
to ‘look up his anus,’” and that Corll “apprises them they will be subjected to being raped and
killed.” Petition for Revocation at 2. Finally, the USPO states that the text reveals that the “boy
is then assaulted and tortured by Corll.” Petition for Revocation at 2.
LAW REGARDING SUPERVISED RELEASE
A district court’s decision-making with regard to violations of supervised release
conditions comes in two phases. First, at sentencing, the court must decide whether to impose a
term of supervised release and, if so, how long a term to impose and what conditions to associate
with it. 	Second, while the defendant is on supervised release, if the United States accuses the
defendant of violating a condition of supervised release, the court must determine whether the
defendant has violated the conditions, whether to revoke supervised release, and, if the court
revokes supervised release, what disposition to impose for the violation.
Case 1:12-cr-02211-MLG Document 286 Filed 02/25/26 Page 14 of 43

- 15 -
1. 	Imposition of Supervised Release.
A court, “in imposing a sentence to a term of imprisonment for a felony or a misdemeanor,
may [and sometimes must] include as a part of the sentence a requirement that the defendant be
placed on a term of supervised release after imprisonment.” 18 U.S.C. § 3583(a) (brackets added).
As part of a defendant’s supervised release, the law binds the defendant to abide by certain
conditions of his release. See 18 U.S.C. § 3583(d). Section 3583 of Title 18 of the United States
Code sets forth some of the standard and discretionary conditions that courts shall and may impose
as part of supervised release:
Conditions of supervised release. -- The court shall order, as an explicit condition
of supervised release, that the defendant not commit another Federal, State, or local
crime during the term of supervision and that the defendant not unlawfully possess
a controlled substance. The court shall order as an explicit condition of supervised
release for a defendant convicted for the first time of a domestic violence crime as
defined in section 3561(b) that the defendant attend a public, private, or private
nonprofit offender rehabilitation program that has been approved by the court, in
consultation with a State Coalition Against Domestic Violence or other appropriate
experts, if an approved program is readily available within a 50-mile radius of the
legal residence of the defendant. The court shall order, as an explicit condition of
supervised release for a person required to register under the Sex Offender
Registration and Notification Act, that the person comply with the requirements of
that Act. The court shall order, as an explicit condition of supervised release, that
the defendant cooperate in the collection of a DNA sample from the defendant, if
the collection of such a sample is authorized pursuant to section 3 of the DNA
Analysis Backlog Elimination Act of 2000. The court shall also order, as an explicit
condition of supervised release, that the defendant refrain from any unlawful use of
a controlled substance and submit to a drug test within 15 days of release on
supervised release and at least 2 periodic drug tests thereafter (as determined by the
court) for use of a controlled substance. 	The condition stated in the preceding
sentence may be ameliorated or suspended by the court as provided in section
3563(a)(4). 	The results of a drug test administered in accordance with the
preceding subsection shall be subject to confirmation only if the results are positive,
the defendant is subject to possible imprisonment for such failure, and either the
defendant denies the accuracy of such test or there is some other reason to question
the results of the test. A drug test confirmation shall be a urine drug test confirmed
using gas chromatography/mass spectrometry techniques or such test as the
Director of the Administrative Office of the United States Courts after consultation
with the Secretary of Health and Human Services may determine to be of equivalent
accuracy. The court shall consider whether the availability of appropriate substance
Case 1:12-cr-02211-MLG Document 286 Filed 02/25/26 Page 15 of 43

- 16 -
abuse treatment programs, or an individual’s current or past participation in such
programs, warrants an exception in accordance with United States Sentencing
Commission guidelines from the rule of section 3583(g) when considering any
action against a defendant who fails a drug test. The court may order, as a further
condition of supervised release, to the extent that such condition --
(1) 	is reasonably related to the factors set forth in section
3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D);
(2) 	involves no greater deprivation of liberty than is reasonably
necessary for the purposes set forth in section 3553(a)(2)(B),
(a)(2)(C), and (a)(2)(D); and
(3) 	is consistent with any pertinent policy statements issued by
the Sentencing Commission pursuant to 28 U.S.C. 994(a);
any condition set forth as a discretionary condition of probation in section 3563(b)
and any other condition it considers to be appropriate, provided, however that a
condition set forth in subsection 3563(b)(10) shall be imposed only for a violation
of a condition of supervised release in accordance with section 3583(e)(2) and only
when facilities are available. 	If an alien defendant is subject to deportation, the
court may provide, as a condition of supervised release, that he be deported and
remain outside the United States, and may order that he be delivered to a duly
authorized immigration official for such deportation. The court may order, as an
explicit condition of supervised release for a person who is a felon and required to
register under the Sex Offender Registration and Notification Act, that the person
submit his person, and any property, house, residence, vehicle, papers, computer,
other electronic communications or data storage devices or media, and effects to
search at any time, with or without a warrant, by any law enforcement or probation
officer with reasonable suspicion concerning a violation of a condition of
supervised release or unlawful conduct by the person, and by any probation officer
in the lawful discharge of the officer’s supervision functions.
18 U.S.C. § 3583(d).
Thus, § 3583 specifies standard and discretionary conditions of supervised release, while,
elsewhere, Congress provides for other conduct which, if a defendant commits on supervised
release, can result in a revocation of supervised release. Among others, § 3583 provides that the
defendant must not commit another federal, State, or local crime during the term of supervision,
that the defendant not possess any controlled substances, and that the defendant cooperate in the
collection of a DNA sample. See 18 U.S.C. § 3583(d). Further, § 3583 permits a court to craft
Case 1:12-cr-02211-MLG Document 286 Filed 02/25/26 Page 16 of 43

- 17 -
special conditions of supervised release that it deems appropriate. 	See 18 U.S.C. § 3583(d).
Among those conditions that § 3583 does not list is that the court may revoke supervised release
if the defendant fails to pay a fine or restitution that the court imposes. See 18 U.S.C. § 3613A
(“Upon a finding that the defendant is in default on a payment of a fine or restitution, the court
may, pursuant to section 3565, revoke probation or a term of supervised release . . . .”). 	In
“determining whether to include a term of supervised release, and if a term of supervised release
is to be included, in determining the length of the term and the conditions of supervised release,”
the court “shall consider the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D),
(a)(4), (a)(5), (a)(6), and (a)(7).” 18 U.S.C. § 3583(c).8
2. 	Revocation of Supervised Release.
Subsection (e)(3) of § 3583 sets forth the process for revoking supervised release:
(e) 	Modification of conditions or revocation. -- The court may, after
considering the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C),
(a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7) --
. . . .
(3) 	revoke 	a 	term 	of 	supervised 	release, 	and 	require 	the
defendant to serve in prison all or part of the term of
supervised release authorized by statute for the offense that
resulted in such term of supervised release without credit for
time previously served on postrelease supervision, if the
court, pursuant to the Federal Rules of Criminal Procedure
8 The Court discusses these eight specific § 3553(a) factors in the next two sections, which
focus on a district court’s re-imprisonment of a defendant following revocation of a term of
supervised release under § 3583(e). A district court must consider these same eight factors in both
contexts. Section 3583(c) omits § 3553(a)(2)(A), which requires a district court to consider “the
need for the sentence imposed . . . to reflect the seriousness of the offense, to promote respect for
the law, and to provide just punishment for the offense.” 	Judge Posner of the Seventh Circuit
observes regarding this omission: “From the omission of subsection 3553(a)(2)(A), the court in
United States v. Murray, 692 F.3d 273, 280 (3d Cir. 2012), inferred ‘that the primary purpose of
supervised release is to facilitate the reentry of offenders into their communities, rather than to
inflict punishment.’” 	United States v. Thompson, 2015 WL 151609, at * 2 (7th Cir. Jan. 13,
2015)(Posner, J.). The Court agrees with that general observation and goal.
Case 1:12-cr-02211-MLG Document 286 Filed 02/25/26 Page 17 of 43

- 18 -
applicable to revocation of probation or supervised release,
finds by a preponderance of the evidence that the defendant
violated a condition of supervised release, except that a
defendant whose term is revoked under this paragraph may
not be required to serve on any such revocation more than 5
years in prison if the offense that resulted in the term of
supervised release is a class A felony, more than three years
in prison if such offense is a class B felony, more than 2
years in prison if such offense is a class C or D felony, or
more than one year in any other case . . . .
18 U.S.C. § 3583(e). Further, under § 3583(h), “[w]hen a term of supervised release is revoked
and the defendant is required to serve a term of imprisonment, the court may include a requirement
that the defendant be placed on a term of supervised release after imprisonment.” 	18 U.S.C.
§ 3583(h). See Johnson v. United States, 529 U.S. 694, 712-13 (2000)(holding that, even before
the addition of Subsection (h) to the statute in 1994, a plain reading of Subsection (e)(3) authorizes
district courts to order terms of supervised release following reimprisonment). 	The court must
find all violations of supervised release by a preponderance of the evidence, regardless whether
the violative conduct itself constitutes criminal conduct. See 18 U.S.C. § 3583(e). This standard
is different from the ones that apply to a defendant’s violation of pretrial release conditions -- mere
probable cause for criminal violations and the heightened clear-and-convincing standard for
noncriminal violations. See 18 U.S.C. § 3148(b)(1).
A defendant violates a supervised release condition when the defendant violates the
supervised release condition’s express terms. For example, in United States v. Roy, 438 F.3d 140
(1st Cir. 2006), the defendant has two express supervised release conditions: (i) that he respond to
the probation officer truthfully; and (ii) that he participate in a mental health treatment program.
See 438 F.3d at 143. The United States Court of Appeals for the First Circuit concludes that the
defendant violates both express conditions, because he lies to his probation officer about having a
relationship with a woman, and because a treatment program terminates the defendant for having
Case 1:12-cr-02211-MLG Document 286 Filed 02/25/26 Page 18 of 43

- 19 -
unapproved contact with children and being dishonest. See 438 F.3d at 143. At least one Court
of Appeals concludes that, when a defendant does not participate in activities which the supervised
release condition requires, the defendant violates supervised release conditions and faces
revocation. 	In United States v. Musso, 643 F.3d 566, 570 (7th Cir. 2011), the defendant’s sex
offender treatment contract requires the defendant, who has a conviction for possessing child
pornography, to “participate in group discussions, treatment activities, and written assignments,”
and states that “simply showing up for sessions is not enough to be considered cooperative with
treatment.” 643 F.3d at 570. The United States Court of Appeals for the Seventh Circuit affirms
the district judge’s conclusion that, because the defendant talks about superficial personal topics
instead of the core issues that bring him to treatment, frequently denies, minimizes, or uses a victim
stance to avoid accountability for his actions, and does not submit his homework assignments, the
defendant does not “participate meaningfully” in sex offender treatment. 	643 F.3d at 570.
Furthermore, the defendant violates additional contract terms, including possessing prohibited
sexual materials and engaging in prohibited contact with a minor. 	See 643 F.3d at 570-71.
According to the Seventh Circuit, the district court, therefore, correctly revokes the defendant’s
supervised release and imposes new special conditions of supervised release. See 643 F.3d at 570.
As long as the defendant follows the supervised release conditions’ express terms, the court does
not revoke supervised release, even if the defendant harbors negative feelings towards the
conditions or does not make progress. See United States v. Hronich, No. CR 11-1789 JB, 2025
WL 1330467, at *1 (D.N.M. May 7, 2025)(Browning, J.)(denying petition to revoke supervised
release, because the defendant attends and participates in sex offender treatment to the extent that
supervised release special condition’s language requires).
Case 1:12-cr-02211-MLG Document 286 Filed 02/25/26 Page 19 of 43

- 20 -
3. 	Sentencing Following the Revocation of Supervised Release.
Consistent with § 3583(e)(2), the United States Court of Appeals for the Tenth Circuit
explains: “When a convicted defendant violates a condition of supervised release, the sentencing
judge may revoke the term of supervised release and impose prison time.” United States v. Patton,
506 F. App’x 729, 731 (10th Cir. 2012)(Brorby, J.)9 (quoting United States v. Vigil, 696 F.3d 997,
1002 (10th Cir. 2012)(O’Brien, J.)(citing 18 U.S.C. § 3584(e))).10 Considering the sentence, “[t]he
judge must consider [certain] factors in 18 U.S.C. § 3553(a) and the policy statements in Chapter
7 of the Sentencing Guidelines.” 	United States v. Patton, 506 F. App’x at 731 (brackets in
original). 	See 18 U.S.C. § 3583(e). 	The relevant portion of 18 U.S.C. § 3583(e) concerning
revocation of supervised release provides that “[t]he court may, after considering the factors set
9 United States v. Patton is an unpublished opinion, but the Court can rely on an
unpublished Tenth Circuit opinion to the extent its reasoned analysis is persuasive in the case
before it. See 10th Cir. R. 32.1(A) (“Unpublished decisions are not precedential, but may be cited
for their persuasive value.”). The United States Court of Appeals for the Tenth Circuit states:
In this circuit, unpublished orders are not binding precedent, . . . and we have
generally determined that citation to unpublished opinions is not favored. However, if an
unpublished opinion or order and judgment has persuasive value with respect to a material
issue in a case and would assist the court in its disposition, we allow a citation to that
decision.
United States v. Austin, 426 F.3d 1266, 1274 (10th Cir. 2005). The Court concludes that United
States v. Patton, United States v. Miller, 608 Fed. App’x 707 (10th Cir. 2015), United States v.
Chatburn, 505 Fed. App’x 713 (10th Cir. 2012), and United States v. Batres, 284 F. App’x 584
(10th Cir. 2008), have persuasive value with respect to a material issue, and will assist the Court
in its disposition of this Memorandum Opinion and Order.
10 As described in the preceding section, under § 3583(h), “[w]hen a term of supervised
release is revoked and the defendant is required to serve a term of imprisonment, the court may
include a requirement that the defendant be placed on a term of supervised release after
imprisonment.” 	18 U.S.C. § 3583(h). 	See Johnson v. United States, 529 U.S. 694, 712-13
(2000)(holding that, even before the addition of Subsection (h) to the statute in 1994, a plain
reading of Subsection (e)(3) authorizes district courts to order terms of supervised release
following reimprisonment). 	When a defendant violates conditions of his supervised release,
therefore, the Court can sentence the defendant to imprisonment and further supervised release.
Case 1:12-cr-02211-MLG Document 286 Filed 02/25/26 Page 20 of 43

- 21 -
forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7) . . .
revoke a term of supervised release, and require the defendant to serve in prison all or part of the
term of supervised release.” 18 U.S.C. § 3583(e). The relevant § 3553(a) factors are as follows:
(1) 	the 	nature 	and 	circumstances 	of 	the 	offense 	and 	the 	history 	and
characteristics of the defendant;
(2) 	the need for the sentence imposed --
. . .
(B) 	to afford adequate deterrence to criminal conduct;
(C) 	to protect the public from further crimes of the defendant; and
(D) 	to provide the defendant with needed educational or vocational
training, medical care, or other correctional treatment in the most effective manner;
. . .
(4) 	the kinds of sentence and the sentencing range established for --
. . . .
(B) 	in the case of a violation of probation or supervised release, the
applicable guidelines or policy statements issued by the Sentencing Commission
pursuant to section 994(a)(3) of title 28, United States Code, taking into account
any amendments made to such guidelines or policy statements by act of Congress
(regardless of whether such amendments have yet to be incorporated by the
Sentencing Commission into amendments issued under section 994(p) of title 28);
(5) 	any pertinent policy statement --
(A) 	issued by the Sentencing Commission pursuant to section 994(a)(2)
of title 28, United States Code, subject to any amendments made to such policy
statement by act of Congress (regardless of whether such amendments have yet to
be incorporated by the Sentencing Commission into amendments issued under
section 994(p) of title 28); and
(B) 	that, except as provided in section 3742(g), is in effect on the date
the defendant is sentenced; or
. . .
Case 1:12-cr-02211-MLG Document 286 Filed 02/25/26 Page 21 of 43

- 22 -
(6) the need to avoid unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.
18 U.S.C. § 3553(a). 	See United States v. Patton, 506 F. App’x at 731 n.2 (explaining that 18
U.S.C. § 3583(e) lists the § 3553(a) factors that the Court must consider).11 	The Tenth Circuit
11 “Section 3583(e) does not list Section 3553(a)(2)(A) among the factors district courts
should consider in modifying or revoking supervised release.” 	United States v. Penn, 601 F.3d
1007, 1012 (10th Cir. 2010)(Baldock, J.). The omitted section, § 3553(a)(2)(A), provides that, in
determining the sentence to be imposed, the district court “shall consider . . . the need for the
sentence imposed . . . to reflect the seriousness of the offense, to promote respect for the law, and
to provide just punishment for the offense.” 18 U.S.C. § 3553(a)(2)(A).
The Supreme Court has not addressed whether a district court’s consideration of a
§ 3553(a)(2)(A) factor during revocation sentencing is error. 	See United States v. Miller, 608
Fed. App’x 707, 709 (10th Cir. 2015)(Baldock, J.). 	The Courts of Appeals are split on the
question. See United States v. Chatburn, 505 Fed. App’x 713, 717 (10th Cir. 2012)(Matheson, Jr.,
J.). The United States Courts of Appeals for the First, Second, Third, Sixth, and Seventh Circuits
conclude that it is not error to consider § 3553(a)(2)(A) factors during revocation sentencing. See
e.g., United States v. Clay, 752 F.3d 1106, 1108-09 (7th Cir. 2014)(Flaum, J.); United States v.
Vargas-Davila, 649 F.3d 129, 131-32 (1st Cir. 2011)(Selya, J.); United States v. Young, 634 F.3d
233, 239 (3d Cir. 2011)(Vanaskie, J.); United States v. Lewis, 498 F.3d 393, 399-400 (6th Cir.
2007)(McKeague, J.); United States v. Williams, 443 F.3d 35, 47-48 (2d Cir. 2006)(Kearse, J.).
The United States Court of Appeals for the Fifth, Ninth, and Tenth Circuits, by contrast, conclude
that it is error to consider § 3553(a)(2)(A). See United States v. Miller, 634 F.3d 841, 844 (5th
Cir. 2011)(Garza, J.); United States v. Miqbel, 444 F.3d 1173, 1182 (9th Cir. 2006)(Reinhardt, J.);
United States v. Booker, 63 F.4th 1254, 1259-60 (10th Cir. 2023). The United States Courts of
Appeals for the Fourth Circuit initially joins the Fifth and Ninth Circuits, holding that, “[a]ccording
to § 3553(a)(2)(A), in devising a revocation sentence the district court is not authorized to consider
whether the revocation sentence ‘reflect[s] the seriousness of the offense, . . . . promote[s] respect
for the law, and . . . provide[s] just punishment for the offense.’” United States v. Crudup, 461
F.3d 433, 439 (4th Cir. 2006)(Shedd, J.). Seven years later, the Fourth Circuit limits United States
v. Crudup’s holding in United States v. Webb, 738 F.3d 638 (4th Cir. 2013)(Floyd, J.):
A district court’s meaningful consideration of the enumerated
§ 3553(a) factors when imposing a revocation sentence typically will
include analysis that furthers the purposes of post-revocation incarceration.
Given that the § 3553(a)(2)(A) factors are closely related to the factors
district courts are instructed to consider under § 3583(e), we fail to see how
a district court’s reference to the § 3553(a)(2)(A) sentencing considerations,
without 	more, 	would 	automatically 	render 	a 	sentence 	unreasonable.
Accordingly, although a district court may not impose a revocation sentence
Case 1:12-cr-02211-MLG Document 286 Filed 02/25/26 Page 22 of 43

- 23 -
based 	predominantly 	on 	the 	seriousness 	of 	the 	releasee’s 	violation 	or 	the
need 	for 	the 	sentence 	to 	promote 	respect 	for 	the 	law 	and 	provide 	just
punishment, 	we 	conclude 	that 	mere 	reference 	to 	such 	considerations 	does
not 	render 	a 	revocation 	sentence 	procedurally 	unreasonable 	when 	those
factors are relevant to, and considered in conjunction with, the enumerated
§ 3553(a) factors.
United States v. Webb, 738 F.3d at 641-42. The Ninth Circuit, likewise, later rules that its holding
in United States v. Miqbel, 444 F.3d at 1182, does not make reliance upon a § 3553(a)(2)(A) factor
improper per se, explaining:
[W]e did not set forth a blanket proposition that a court in no circumstances may
consider the seriousness of the criminal offense underlying the revocation. 	The
seriousness of the offense underlying the revocation, though not a focal point of the
inquiry, may be considered to a lesser degree as part of the criminal history of the
violator.
. . . .
To ignore the new violation underlying the revocation entirely would be to
ignore a key predictor of a violator’s potential for reintroduction into society
without relapse. 	See, e.g., United States v. Tadeo, 222 F.3d 623, 626 (9th Cir.
2000)(finding no abuse of discretion where the court found that the use of narcotics
in violation of supervised release created a risk that the defendant would commit
serious crimes because some of his past criminal activity occurred while under the
influence). 	The history of the violator, when combined with the violator’s most
recent criminal offenses, and particularly when similar to the past transgressions, is
indicative of the violator’s propensity for recidivism and inability to integrate
peacefully into a community. 	See id.; U.S.S.G.M. Ch.7, Pt. A(4) (2006)
(determining “that the purpose of . . . supervised release should focus on the
integration of the violator into the community, while providing the supervision
designed 	to 	limit 	further 	criminal 	conduct”); 	see 	also 	18 	U.S.C.
§§ 3553(a)(2)(B)(2003)(affording 	deterrence 	as 	one 	consideration) 	and
3553(a)(2)(C)(2003)(protecting the public from further crimes as another); 18
U.S.C. § 3583(e) (permitting the preceding factors for consideration in revocation
sentences). A history of, for example, drug-related offenses, combined with a drug-
related offense underlying revocation, as is the case here, creates a greater
likelihood that the violator will relapse into the same or similar criminal activity.
A violator who, after committing an offense and being placed on supervised release
for that offense, again commits a similar offense is not only more likely to continue
on that path, but also has demonstrated to the court that the violator has little respect
for its command. Because the district court’s trust in the violator’s ability to coexist
in society peacefully has been broken to a greater degree than if the violator had
committed a minor offense of a dissimilar nature, greater sanctions may be required
Case 1:12-cr-02211-MLG Document 286 Filed 02/25/26 Page 23 of 43

- 24 -
holds that, at revocation sentencing, consideration of any other factors beyond § 3553(a), as well
as any § 3553(a) factors that §3583(e) does not enumerate explicitly -- such as the need for
retribution -- is improper. See United States v. Booker, 63 F.4th 1254, 1259-60 (10th Cir. 2023).
In United States v. Booker, the Tenth Circuit applies to revocation sentencings its prior holding
from United States v. Smart, 518 F.3d 800, 803-04 (10th Cir. 2008)(“Smart”), that any
consideration of sentencing factors that § 3553(a) does not enumerate is procedural error. United
States v. Booker, 63 F.4th at 1259. The Tenth Circuit explains that its holding in Smart also applies
to deter future criminal activity. Consequently, if the nature and the severity of the
underlying offense were removed from the equation altogether, the court’s ability
to predict the violator’s potential for recidivism and to punish the violator for the
violator’s full breach of trust (and, ultimately, to deter the violator and to
protect the public) would be impaired significantly.
United States v. Simtob, 485 F.3d 1058, 1062-63 (9th Cir. 2007)(Ezra, J.).
Before the Tenth Circuit’s decision in United States v. Booker, the Court thought that, like
the Fifth and Ninth Circuits, it is not error to consider the § 3553(a)(2)(A) factors during revocation
sentencing, and still thinks that it is not error and is probably the better rule. The Court must apply,
however, Tenth Circuit precedent. 	Now, where there is a revocation, given United States v.
Booker, the Court strives not to consider respect for the law, just punishment, and the seriousness
of the offense. The Court believes the solution and best practice is to keep always in mind what
Judge Posner and the Third Circuit emphasize -- “that the primary purpose of supervised release
is to facilitate the reentry of offenders into their communities, rather than to inflict punishment.”
United States v. Thompson, 2015 WL 151609, at *2 (quoting United States v. Murray, 692 F.3d
273, 280 (3d Cir. 2012)(Fuentes, J.)). 	The Court is mindful that all it does should help the
defendant ease back into society after a sometimes lengthy prison sentence, and the Court tries not
to punish the defendant, although sometimes incarceration is necessary, and Congress expressly
authorizes incarceration to get the defendant to do what the Court and the USPO tell him or her to
do.
The Court makes one other observation. 	When Congress and the Court says the word
“offense” at a violation hearing, the question is whether it is referring to the underlying offense or
to the violation. The Court can consider both, but again, in meeting the goals of supervised release,
the emphasis should be on the violation and not on the underlying offense. For example, when it
considers the “nature and circumstances of the offense,” it may consider how the defendant arrived
before the Court, but its focus and emphasis in coming up with a disposition should be on the
nature and circumstances of the new violation. 	If the Court is going to consider the offense’s
seriousness, the underlying offense’s seriousness is largely irrelevant, unless the violation is the
same thing as the underlying offense. 	In any case, the focus and emphasis, if seriousness is
considered at all, should be on the new violation’s seriousness.
Case 1:12-cr-02211-MLG Document 286 Filed 02/25/26 Page 24 of 43

- 25 -
to revocation sentencings, “because § 3583(e) also requires courts to consider certain § 3553(a)
factors when sentencing after a supervised release violation.” United States v. Booker, 63 F.4th
at 1259 (citing United States v. McBride, 633 F.3d 1229, 1231 (10th Cir. 2011)). Then, the Tenth
Circuit explains: “Because we read § 3583(e) to set forth those sentencing factors that courts must
consider, the subsection ‘implicitly forbids consideration’ of any other § 3553(a) factors when
modifying or revoking a term of supervised release.” United States v. Booker, 63 F.4th at 1260
(quoting Smart, 518 F.3d at 803-04). 	The Tenth Circuit concludes that “the omission of
§ 3553(a)(2)(A) from the sentencing factors enumerated in § 3583(e) precludes a court from
considering the need for retribution when modifying or revoking a term of supervised release.”
United States v. Booker, 63 F.4th at 1260. 	The district court, in United States v. Booker, thus,
errs, because it “directly quoted” from § 3553(a)(2)(A) when explaining the reasons for Booker’s
sentence, and § 3553(a)(2)(A) is a factor the district court cannot consider when modifying or
revoking Booker’s term of supervised release. 63 F.4th at 1262.12
In particular, a district court must consider the policy statements in Chapter 7 of the
Guidelines before imposing a sentence for violations of the conditions of supervised release. See
United States v. Vigil, 696 F.3d at 1002; United States v. Kelley, 359 F.3d 1302, 1304-05 (10th
12 The Court notes that, in United States v. Booker, the Tenth Circuit concludes that the
district court’s error in considering § 3553(a)(2)(A) does not affect the defendant’s substantial
rights. See United States v. Booker, 63 F.4th at 1262. The Tenth Circuit explains:
We concluded that a single reference to punishment did not affect the defendant’s
substantial rights. [United States v. Penn, 601 F.3d 1007, 1012 (10th Cir. 2010)].
The court did not rely on the need for punishment in setting forth his initial reasons
for the new sentence based upon violation of the terms of supervised release, and
only raised it after defense counsel objected to his client receiving a high-end
sentence.
United States v. Booker, 63 F.4th at 1263.
Case 1:12-cr-02211-MLG Document 286 Filed 02/25/26 Page 25 of 43

- 26 -
Cir. 2004)(Ebel, J.). The Guidelines’ commentary is generally an authoritative interpretation of
the rules. 	See Stinson v. United States, 508 U.S. 36, 38 (1993). 	“[T]he Chapter 7 provisions
dealing with violations of supervised release are not mandatory sentencing guidelines; rather, they
merely constitute advisory ‘policy’ statements.” 	United States v. Contreras-Martinez, 409 F.3d
1236, 1240 (10th Cir. 2005)(quoting United States v. Tsosie, 376 F.3d 1210, 1218 (10th Cir.
2004)). See United States v. Lee, 957 F.2d 770, 773-74 (10th Cir. 1992)(“[T]he policy statements
regarding revocation of supervised release contained in Chapter 7 of the U.S.S.G. are advisory
rather than mandatory in nature” and that “they must be considered by the trial court in its
deliberations concerning punishment for violation of conditions of supervised release”).
“All discussions of applicable sentences before a district court following the revocation of
supervised release ‘should be grounded in the common understanding that the district court may
impose any sentence within the statutory maximum.’” United States v. Burdex, 100 F.3d 882, 885
(10th Cir. 1996)(Henry, J.)(quoting United States v. Hofierka, 83 F.3d 357, 362 (11th Cir. 1996)).
While district courts must consider Chapter 7’s policy statements in imposing sentences after
revocation of supervised release, “‘[m]agic words, however, are not required to demonstrate
fulfillment of this requirement.’” 	United States v. Vigil, 696 F.3d 997, 1002 (10th Cir.
2012)(quoting United States v. Tedford, 405 F.3d 1159, 1161 (10th Cir. 2005)). 	“Rather, it is
enough if the district court considers § 3553(a) en masse and states its reasons for imposing a given
sentence.” United States v. Penn, 601 F.3d at 1011.
LAW REGARDING SUPERVISED RELEASE REVOCATION AND REVOCATION
HEARINGS
Subsection (e)(3) of § 3583 permits courts to revoke supervised release on the conclusion,
by a preponderance of the evidence, that the defendant violates a condition of probation. See 18
U.S.C. § 3583(e). Section 3583(e)(3) sets forth the process for revoking supervised release:
Case 1:12-cr-02211-MLG Document 286 Filed 02/25/26 Page 26 of 43

- 27 -
(e) 	Modification of conditions or revocation. -- The court may, after
considering the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C),
(a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7) --
. . . .
(3) 	revoke 	a 	term 	of 	supervised 	release, 	and 	require 	the
defendant to serve in prison all or part of the term of
supervised release authorized by statute for the offense that
resulted in such term of supervised release without credit for
time previously served on postrelease supervision, if the
court, pursuant to the Federal Rules of Criminal Procedure
applicable to revocation of probation or supervised release,
finds by a preponderance of the evidence that the defendant
violated a condition of supervised release, except that a
defendant whose term is revoked under this paragraph may
not be required to serve on any such revocation more than 5
years in prison if the offense that resulted in the term of
supervised release is a class A felony, more than three years
in prison if such offense is a class B felony, more than 2
years in prison if such offense is a class C or D felony, or
more than one year in any other case . . . .
18 U.S.C. § 3583(e). “Preponderance of the evidence” is “evidence sufficient to persuade you that
a fact is more likely present than not present.” Criminal Pattern Jury Instruction Committee of the
United States Court of Appeals for the Tenth Circuit, Criminal Pattern Jury Instructions § 1.05.1,
at 10 (2025 ed.)(“Pattern Jury Instructions”). Preponderance of the evidence is:
The greater weight of the evidence, not necessarily established by the
greater number of witnesses testifying to a fact but by evidence that has the most
convincing force; superior evidentiary weight that, though not sufficient to free the
mind wholly from all reasonable doubt, is still sufficient to incline a fair and
impartial mind to one side of the issue rather than the other..
“Preponderance of the Evidence,” Black’s Law Dictionary 18(c) (12th ed. 2024).
Where, as here, revocation of supervised release is contested, courts must hold a revocation
hearing. See Fed. R. Crim. P. 32.1(b)(2). Rule 32.1 of the Federal Rules of Criminal Procedure
governs revocation hearings. See Fed. R. Crim. P. 32.1. Rule 32.1 provides in relevant part:
Case 1:12-cr-02211-MLG Document 286 Filed 02/25/26 Page 27 of 43

- 28 -
(2) 	Revocation Hearing. Unless waived by the person, the court must hold the
revocation 	hearing 	within 	a 	reasonable 	time 	in 	the 	district 	having
jurisdiction. The person is entitled to:
(A) 	written notice of the alleged violation;
(B) 	disclosure of the evidence against the person;
(C) 	an opportunity to appear, present evidence, and question any
adverse witness unless the court determines that the interest of
justice does not require the witness to appear;
(D) 	notice of the person’s right to retain counsel or to request that
counsel be appointed if the person cannot obtain counsel; and
(E) 	an opportunity to make a statement and present any information in
mitigation . . . .
Fed. R. Crim. P. 32.1(b).
Although rule 32.1(b)(2) provides for a revocation hearing, the hearing is “not a formal
trial.” 	Comment to Rule 32.1(a)(2). 	Instead, revocation hearings are to be more flexible and
inclusive than criminal trials. See Morrissey v. Brewer, 408 U.S. 471, 489 (1972).13 The parties
may call witnesses and present evidence, but the process “should be flexible enough to consider
evidence including letters, affidavits, and other material that would not be admissible in an
adversary criminal trial.” Morrissey v. Brewer, 408 U.S. at 489. To that end, the Federal Rules
of Evidence do not apply in revocation hearings. 	See Fed. R. Evid. 1101(d)(3) (“These
rules -- except for those on privilege -- do not apply to . . . miscellaneous proceedings such
13 Rule 32.1 was adopted in 1979. See Advisory Committee Notes on Fed. R. Crim. P. 32.1.
It replaces the former “revocation of parole” system with a new “revocation of supervised release”
system. See Advisory Committee Notes on Fed. R. Crim. P. 32.1. The Supreme Court decides
Morrissey v. Brewer in 1972, before rule 32.1’s adoption. 	Accordingly, the Supreme Court’s
analysis concerns revocation of parole and not of revocation of supervised release. Nevertheless,
the Tenth Circuit interprets Morrissey v. Brewer to apply to revocation of supervised release. See
Jones, 818 F.3d at 1098-99 (discussing Morrissey v. Brewer as part of rule 32.1’s history and
development).
Case 1:12-cr-02211-MLG Document 286 Filed 02/25/26 Page 28 of 43

- 29 -
as . . . granting or revoking probation or supervised release . . . .”); United States v. Diaz, 986 F.3d
202, 209 (2d Cir. 2021).
Also in service of flexibility and inclusivity, defendants have a lesser right to confrontation
in revocation hearings. See Jones, 818 F.3d at 1098. “The Sixth Amendment [to the Constitution
of the United States of America] is a trial right” and does not apply to revocation hearings. United
States v. Hernandez, 778 F. Supp. 2d 1211, 1225 (D.N.M. 2011)(Browning, J.). Rule 32.1 of the
Federal Rules of Criminal Procedure gives, however, the defendant at the revocation hearing “an
opportunity to appear, present evidence, and question any adverse witness unless the court
determines that the interest of justice does not require the witness to appear.” 	Fed. R. Crim. P.
32.1(b)(2)(c). Instead of running through a standard confrontation analysis like the one that the
Supreme Court mandates in Crawford v. Washington, 541 U.S. 36 (2004)(“Crawford”), courts
presiding over revocation hearings engage in a balancing test, see Jones, 818 F.3d at 1099-100.
When the United States relies on a non-testifying declarant’s out-of-court statement in a revocation
hearing, the court “must determine whether the ‘interest of justice does not require the witness to
appear’ by balancing (1) ‘the person’s interest in the constitutionally guaranteed right to
confrontation’ against (2) ‘the government’s good cause for denying it.’” Jones, 818 F.3d at 1099-
100 (quoting Advisory Committee Notes to the 2002 Amendment to Fed. R. Crim. P. 32.1). See
Rule 32.1 Advisory Committee’s Note to the 2012 Amendment (instructing courts to apply a
balancing test that weighs “the person’s interest in the constitutionally guaranteed right to
confrontation against the government’s good cause for denying it”); United States v. Hernandez,
428 F. Supp. 3d at 788 (“When applying the balancing test, the Court must weigh the defendant’s
interest in cross-examining and confronting [a] witness with the government’s good cause for not
presenting the witness.” (citing Jones, 818 F.3d at 1098)). The testimony’s “reliability is a very
Case 1:12-cr-02211-MLG Document 286 Filed 02/25/26 Page 29 of 43

- 30 -
important factor in determining the strength of a releasee’s confrontation right.’” Jones, 818 F.3d
at 1100 (quoting Curtis v. Chester, 626 F.3d 540, 546 (10th Cir. 2010)(emphasis omitted in Jones,
but in Curtis v. Chester)). The Tenth Circuit uses adopted this balancing test “when determining
a releasee’s confrontation rights at a revocation hearing.” 	Jones, 818 F.3d at 1099. 	See, e.g.,
United States v. Hykes, 653 F. Supp. 3d 913, 917 (D.N.M. 2022)(Browning, J.)(making findings
of fact in a revocation of supervised release memorandum opinion and order based on evidence
that survives the balancing test that the Tenth Circuit adopts in Jones, 818 F.3d at 1098); United
States v. Calvert-Cata, No. CR 16-4566 JB, 2022 U.S. Dist. LEXIS 194756, at *30-31 (D.N.M.
October 26, 2022)(Browning, J.)(determining in the alternative that, even if it must apply the
Jones, 818 F.3d at 1098, balancing test to the victim’s out-of-court statements, the statements are
admissible, because the United States has good cause not to call the witness to testify at the
revocation hearing).
Although rule 32.1 and the Jones balancing test are geared toward decreasing procedural
protections for defendants in revocation hearings and increasing the universe of evidence courts
can consider in those hearings, in practice, rule 32.1 and Jones may limit evidence unnecessarily
and unwisely. In some instances, rule 32.1 compels courts presiding over revocation hearings to
disregard out-of-court statements even though those same out-of-court statements are admissible
under the Federal Rules of Evidence and Crawford if offered at trial, regardless whether the
declarant is available to testify at the trial.14 Those instances are troubling for two reasons. First,
14 The Court confronts a similar issue in United States v. Hernandez, 428 F. Supp. 3d 775.
There, an officer responds to a domestic disturbance in Rio Rancho, New Mexico. 	See 428 F.
Supp. 3d at 782. When the officer arrives at the scene, the victim “appeared distressed,” and tells
the officer that the defendant assaulted her and attempted to set fire to a kitchen, among other
things. 428 F. Supp. 3d at 782. The defendant is on supervised release at the time, and the USPO’s
probation officer subsequently petitions to revoke his supervised release. See 428 F. Supp. 3d at
Case 1:12-cr-02211-MLG Document 286 Filed 02/25/26 Page 30 of 43

- 31 -
defendants in those cases receive a greater right to confrontation in the revocation context than
they do in the trial context. It is difficult -- if not impossible -- to square that outcome with the
Tenth Circuit’s guidance that defendants are supposed to have a more limited right to confrontation
in the revocation setting than they do in the trial setting. See Jones, 818 F.3d at 1098. Second,
courts in revocations must rely on smaller universes of evidence than they do in the trial setting.
Again, it is difficult -- if not impossible -- to reconcile that result with the Supreme Court’s
guidance in Morrissey v. Brewer that courts presiding over revocation hearings should be able to
consider “material that would not be admissible in an adversary criminal trial.” 408 U.S. at 489.
The Honorable Andrew S. Oldham, United States Circuit Judge for the United States Court
of Appeals for the Fifth Circuit, documents this paradox in his concurring opinion in United States
v. Alvear, 959 F.3d 185, 191 (5th Cir. 2020)(Oldham, J., concurring). In his concurrence, Judge
Oldham discusses “three oddities” in rule 32.1 caselaw. United States v. Alvear, 959 F.3d at 193
(Oldham, J., concurring). 15 	First, he notes that “it’s unclear what if anything the Due Process
780. At the hearing, the United States does not call the victim, yet it relies on her statements to
the officer on the scene. See 428 F. Supp. 3d at 781. The Court applies the Jones balancing test
and determines that it cannot consider the victim’s out-of-court statements to the officer. See 428
F. Supp. 3d at 788. 	Those out-of-court statements, however, are admissible hearsay in a trial
setting as either a present sense impression or excited utterance. 	See Fed. R. Evid. 803(1), (2).
Given the Court’s recent decisions in United States v. Chavez, No. CR 15-3557 JB, 2023 WL
5672594 (D.N.M. Sept. 1, 2023)(Browning, J.), and United States v. Green, No. CR 06-2605 JB,
2022 WL 1184650 (D.N.M. April 21, 2022)(Browning, J.), aff’d, No. 22-2062, 2023 WL 4195884
(10th Cir. June 27, 2023), the Court would admit these out-of-court statements today.
15 The Fifth Circuit does not use the Jones test. It uses, however, a balancing test analogous
to Jones test, as does every other Court of Appeals that has handled a rule 32.1 issue. See United
States v. Taveras, 380 F.3d 532, 536 (1st Cir. 2004); United States v. Chin, 224 F.3d 121, 124 (2d
Cir. 2000); United States v. Lloyd, 566 F.3d 341, 344 (3d Cir. 2009); United States v. Doswell,
670 F.3d 526, 530 (4th Cir. 2012); Barnes v. Johnson, 184 F.3d 451, 454 (5th Cir. 1999); United
States v. Jackson, 422 Fed. App’x 408, 410-11 (6th Cir. 2011)(unpublished); United States v.
Jordan, 742 F.3d 276, 279 (7th Cir. 2014); United States v. Bell, 785 F.2d 640, 642 (8th Cir. 1986);
United States v. Comito, 177 F.3d 1166, 1170 (9th Cir. 1999); United States v. Frazier, 26 F.3d
110, 114 (11th Cir. 1994); United States v. Stanfield, 360 F.3d 1346, 1360 (D.C. Cir. 2004).
Case 1:12-cr-02211-MLG Document 286 Filed 02/25/26 Page 31 of 43

- 32 -
Clause adds to the protections of Rule 32.1(b)(2)(C).” United States v. Alvear, 959 F.3d at 193
(Oldham, J., concurring). Second, he observes that, “instead of applying Rule 32.1(b)(2)(C), many
of our decisions in this area contain nary a citation to it.” United States v. Alvear, 959 F.3d at 193
(Oldham, J., concurring). Finally, he describes, “oddest of all, sometimes confrontation rights in
a revocation hearing can be broader than the confrontation right at trial.” United States v. Alvear,
959 F.3d at 193 (Oldham, J., concurring)(emphasis in original).
The Supreme Court has told us that protections in a revocation hearing are
(at most) the same as those at trial. See United States v. Haymond, -- U.S. --, 139
S.Ct. 2369, 2378-79 . . . (2019)(plurality opinion); id. at 2385-86 (Breyer, J.,
concurring in the judgment). 	That result creates its own difficulties. 	See id. at
2390-91 (Alito, J., dissenting). But it’s an altogether different problem to make the
constitutional protections in the revocation hearing broader than at trial. After all,
one premise of our system is that post-conviction rights are generally narrower
because “[o]nce a defendant has been afforded a fair trial and convicted of the
offense for which he was charged, the presumption of innocence disappears.”
Herrera v. Collins, 506 U.S. 390, 399 . . . (1993). 	But when we ask different
questions under the Confrontation Clause at trial (is the statement “testimonial”?)
and under the Due Process Clause at revocation (is there “good cause” to admit the
statement?), we can get incongruous answers.
Consider an example. A boyfriend violently attacks his girlfriend who then
immediately calls 911. 	The Government wants to use her statements to the 911
operator against the boyfriend. At trial, the defendant has no right to prevent the
introduction of these statements under the Confrontation Clause because they’re
not “testimonial.” 	[Ohio v. ]Clark, [576 U.S. 237 (2015)] (citing Davis v.
Washington, 547 U.S. 813, 820 . . . (2006)). 	But this same 911 call is almost
certainly hearsay. 	So at the boyfriend’s revocation hearing, he can object to the
introduction of the statements under the Due Process Clause, unless there is “good
cause” to admit them. 	See, e.g., [United States v. ]Jimison, 825 F.3d [260,] 263
[(2016)].
The oddities don’t end there. The Federal Rules of Evidence apply at trial.
And they provide for the admission of all sorts of hearsay: an excited utterance, a
statement made for medical treatment, a present sense impression, a business
record, a statement against interest. See Fed. R. Evid. 803, 804. But the hearsay
rules in the Federal Rules of Evidence do not apply in revocation hearings. Fed. R.
Evid. 1101(d)(3) . . . . So if the Government wants to use these same (otherwise-
admissible) hearsay statements at a revocation hearing, the court has to apply the
“good cause” analysis demanded by the Due Process Clause. That’s an additional
hurdle that applies post-conviction that does not apply pre-conviction. How odd.
Case 1:12-cr-02211-MLG Document 286 Filed 02/25/26 Page 32 of 43

- 33 -
United States v. Alvear, 959 F.3d at 194 (Oldham, J., concurring).
Although 18 U.S.C. § 3583(e) establishes the maximum terms of imprisonment upon the
revocation of a defendant’s supervised release, the U.S.S.G establishes revocation imprisonment
ranges based on the defendant’s criminal history category and the violation grade. 	U.S.S.G.
§ 7B1.4(a). The Guidelines establish three violation categories:
(1) 	GRADE A VIOLATIONS -- conduct constituting (A) a federal, state, or
local offense punishable by a term of imprisonment exceeding one year that
(i) is 	a 	crime 	of 	violence, 	(ii) is a 	controlled 	substance 	offense, 	or
(iii) involves possession of a firearm or destructive device of a type
described in 26 U.S.C. § 5845(a); or (B) any other federal, state, or local
offense punishable by a term of imprisonment exceeding twenty years;
(2) 	GRADE B VIOLATIONS -- conduct constituting any other federal, state,
or local offense punishable by a term of imprisonment exceeding one year;
(3) 	GRADE C VIOLATIONS -- conduct constituting (A) a federal, state, or
local offense punishable by a term of imprisonment of one year or less; or
(B) a violation of any other condition of supervision.
U.S.S.G. § 7B1.2(a) (capitalization in original). 	In determining the applicable revocation
imprisonment range, the Guidelines instruct that courts should apply the criminal history category
applicable at the time of the defendant’s underlying sentencing. See U.S.S.G. § 7B1.4 cmt. n.1.
LAW REGARDING 18 U.S.C § 2256
Section 2256(2)(A) states:
Except as provided in subparagraph (B), ‘sexually explicit conduct’ means actual
or simulated --
(i) 	sexual intercourse, including genital-genital, oral-genital, anal-
genital, or oral-anal, whether between persons of the same or
opposite sex;
(ii) 	bestiality;
(iii) 	masturbation;
Case 1:12-cr-02211-MLG Document 286 Filed 02/25/26 Page 33 of 43

- 34 -
(iv) 	sadistic or masochistic abuse; or
(v) 	lascivious exhibition of the anus, genitals, or pubic area of any
person;
18 U.S.C. 2256(2)(A). Section 2256 does not define the words “sadistic or masochistic abuse.”
“When a statue does not define its terms, we look to the ‘ordinary, contemporary, common
meaning’ of the terms ‘when congress enacted’ the statue.” 	M. S. v. Premera Blue Cross, 118
F.4th 1248, 1266 (10th Cir. 2024)(quoting Food Mktg. Inst. v. Argus Leader Media, 588 U.S. 427,
433-34 (2019)). See Sunnyside Coal Co. v. Dir., Off. of Workers’ Comp. Programs, U.S. Dep’t
of Lab., 112 F.4th 902, 910 (10th Cir. 2024)(“A fundamental canon of statutory construction is
that, unless otherwise defined, words will be interpreted as taking their ‘ordinary, contemporary,
common meaning.’”)(quoting Perrin v. United States, 444 U.S. 37, 42 (1979)).
The 	Merriam-Webster 	Dictionary 	defines 	“sadism” 	as 	“the 	derivation 	of 	sexual
gratification from the infliction of physical pain or humiliation on another person,” sadism,
Merriam-Webster.com 	Dictionary, 	Merriam-Webster, 	https://www.merriam-
webster.com/dictionary/sadism. 	(last visited on Jan. 26, 2026), while defining “masochism” as
“the derivation of sexual gratification from being subjected to physical pain or humiliation by
oneself or another person,” masochism, Merriam-Webster.com Dictionary, Merriam-Webster,
https://www.merriam-webster.com/dictionary/masochism. 	(last 	visited 	on 	Jan. 	26, 	2026).
“Abuse,” in turn, connotates “physical maltreatment” or physical cruelty/physical abuse. Abuse,
Merriam-Webster.com 	Dictionary, 	Merriam-Webster, 	https://www.merriam-
Case 1:12-cr-02211-MLG Document 286 Filed 02/25/26 Page 34 of 43

- 35 -
webster.com/dictionary/abuse. (last visited on Jan. 26, 2026).16 With these definitions in mind,
the Court first concludes that “sadistic abuse” is sexual gratification derived from the infliction of
pain or humiliation, and “masochistic abuse” is the sexual gratification one derives from receiving
the infliction of pain or humiliation.
When the Court interprets analogous language in the United States Sentencing Guidelines
(“U.S.S.G.”) § 2G2.2(b)(4), it determines that sadistic conduct involves the display of “‘infliction
of pain and humiliation . . . as a means of giving sexual gratification.’” United States v. Christy,
888 F. Supp. 2d 1107, 1150-51 (D.N.M. 2012)(Browning, J.)(“Christy”)(sustaining an objection
to sentencing enhancement under U.S.S.G. § 2G2.2(b)(4), because “the Court does not believe that
the depiction is one ‘intended to portray the infliction of pain and humiliation on very young minor
victims as a means of giving sexual gratification to individuals with pedophilic tendencies’”
(quoting United States v. Kimler, 335 F.3d 1132, 1143 (10th Cir. 2003)(“Kimler”)).17 Under this
understanding, sadistic conduct is present where the material portrays an individual inflicting pain
on another person to produce sexual arousal or satisfaction for the perpetrator or viewer. 	See
Christy, 888 F. Supp. 2d at 1150-51. This interpretation provides useful guidance in construing
the meaning of “sadistic abuse” in the § 2256(2)(A)(iv). Moreover, appellate precedent construing
analogous statutory language guides the Court’s interpretation of the words at issue.
16 Merriam-Webster defines “maltreatment” as “to treat cruelly or roughly: abuse.”
Maltreatment, 	Merriam-Webster.com 	Dictionary, 	Merriam-Webster, 	https://www.merriam-
webster.com/dictionary/maltreatment. (last visited on Jan. 26, 2026).
17 The Court previously uses the New Oxford American Dictionary’s definition of
“sadistic” as “deriving pleasure from inflicting pain, suffering, or humiliation of others,” New
Oxford American Dictionary 1537 (A. Stevenson & C. Lindberg eds., 3d ed. 2010), and the New
Oxford American Dictionary’s definition of “masochism” as “the tendency to derive pleasure, esp.
sexual gratification, from one’s own pain or humiliation,” New Oxford American Dictionary,
supra, at 1075, for its interpretation of the terms. Christy, 888 F. Supp. 2d at 1127.
Case 1:12-cr-02211-MLG Document 286 Filed 02/25/26 Page 35 of 43

- 36 -
In Kimler, the Tenth Circuit considers whether images depicting adults penetrating
prepubescent children’s anus or vaginas portrays pain or humiliation. 	See Kimler, 335 F.3d at
1143 (stating that the “district court found that some of the images depict anal or vaginal
penetration of prepubescent children by adults causing pain and humiliation . . . .”)(italics in the
original). The Tenth Circuit agrees with the conclusion of the Honorable Wesley E. Brown, United
States District Court Judge for the United States District Court for the District of Kansas, that the
depictions “portray[] ‘sadistic conduct’ within the meaning of the guideline, in that the depictions
include and are intended to portray the infliction of pain and humiliation on very young minor
victims as a means of giving sexual gratification to individuals with pedophilic tendencies.”
Kimler, 335 F.3d at 1143. 	See United States v. Batres, 284 F. App’x 584, *2 (10th Cir.
2008)(stating that, when an image contains an adult sexually penetrating a prepubescent child, “a
court can presume that pain and humiliation were inflicted upon the child as a means to give sexual
gratification to the view of the image and, thus, is inherently sadistic or violent for purposes of
§ 2G2.2(b)(4)”). 	Several other Courts of Appeals define sadism with respect to pain and
humiliation. 	See United States v. Parker, 267 F.3d 839, 847 (8th Cir. 2001)(“[T]he conduct
portrayed is sufficiently painful, coercive, abusive, and degrading to qualify as sadistic or violent
within the meaning of § 2G2.2(b)(3).”); United States v. Turchen, 187 F.3d 735, 739 (7th Cir.
1999)(“Turchen”)(stating that definitions of sadism and masochism “make clear that sadistic and
masochistic 	conduct 	includes 	sexual 	gratification 	which 	is 	purposefully 	degrading 	and
humiliating, conduct that causes mental suffering or psychological or emotional injury in the
victim”); United States v. Fuller, 77 F. App’x 371, 383 (6th Cir. 2003)(defining sadism “as the
‘“infliction of pain upon a love object as a means of obtaining sexual release’”)(quoting United
States v. Lyckman, 235 F.3d 234, 238 n.19 (5th Cir. 2000)(“Lyckman”)).
Case 1:12-cr-02211-MLG Document 286 Filed 02/25/26 Page 36 of 43

- 37 -
The Court concludes that § 2256(2)(A)(iv)’s use of “sadistic abuse” refers to conduct in
which one person inflicts pain or humiliation on another person for the purpose of sexual
gratification. 	To the extent any ambiguity remains, the Court clarifies that sadistic abuse
encompasses both physical and psychological pain. 	Although humiliation may be a form of
psychological or mental pain, the Courts of Appeals do not draw that distinction. See United States
v. Maurer, 639 F.3d 72, 80 n.6 (3d Cir. 2011)(stating its “position is consistent with precedent in
other circuits,” when it concludes sadistic abuse includes “‘mental suffering or psychological or
emotional injury in the victim’” (quoting United States v. Rodgers, 610 F.3d 975, 978-79 (7th Cir.
2010))); United States v. Phillips, 383 F. App’x 527, *6 n2 (6th Cir. 2010)(stating that “this circuit
has never explicitly limited ‘sadistic or masochistic conduct” to conduct likely to cause physical
pain; indeed, other circuits have construed the phrase broadly enough to encompass conduct likely
to cause extreme psychological or emotional distress” (citing Lyckman, 235 F.3d at 239; Turchen,
187 F.3d at 739)(italics in the original)). To the extent that it is necessary to distinguish between
humiliation and psychological pain, the Court does. 	Accordingly, the Court concludes that
§ 2256(2)(A)’s use of “sexually explicit conduct” includes the actual, or simulated, conduct in
which one person inflicts physical or psychological pain, or humiliation, on another person for the
purpose of sexual gratification.
ANALYSIS
The Court concludes that: (i) Dates violates his modified conditions of supervised release,
where Dates searches for written materials, reads written materials, and saves images of written
material describing historical acts of sexual violence, because the United States shows, by a
preponderance of evidence, that the written material Dates saves to his cellphone depicts “sexually
explicit conduct” within § 2256’s definition, when the written material portrays in words Corrl and
Case 1:12-cr-02211-MLG Document 286 Filed 02/25/26 Page 37 of 43

- 38 -
his accomplice inflicting pain and humiliation on children for the sexual gratification of the Corrl;
(ii) Dates does not violate his modified conditions of supervised release, where Dates searches for
images of a serial killer/sex offender’s adolescent victim, views images of a serial killer/sex
offender’s adolescent victim, and saves images of a serial killer/sex offender’s adolescent victim,
because the United States does not show, by a preponderance of evidence, that the image Dates
saves to his cellphone depicts “sexually explicit” conduct within § 2256’s definition; (iii) Dates
commits a Grade C violation pursuant to the Guidelines policy statement § 7B1.1; (iv) Dates’
criminal history category is I; and (v) Dates’ grade C violation and criminal history category of I,
under § 7B1.1 of the Guidelines, establishes a revocation imprisonment range of 3 to 9 months.
Pursuant to 18 U.S.C. § 3583(e)(3), the maximum term of imprisonment upon revocation of
supervised release is 24 months.
I. 	DATES VIOLATES HIS TERMS OF SUPRVISED RELEASE WHEN HE READS
WRITTEN MATERIALS AND SAVES IMAGES OF WRITTEN MATERIALS
DESCRIBING HISTORICAL ACTS OF SEXUAL VIOLANCE.
18 U.S.C. § 3583(e)(3) governs supervised release revocations. Under § 3583, a district
court may, after considering the relevant factors under § 3553(a), revoke a term of supervised
release and impose a term of imprisonment if the court finds by a preponderance of the evidence
that the defendant violates a condition of supervised release. 	See 18 U.S.C. § 3583(e). 	The
standard of proof, which is proof by a preponderance of the evidence, requires only that the
evidence demonstrate that a fact is more likely “present than not present.” Pattern Jury Instructions
at 10. 	Here, the United States alleges that Dates violates his conditions of supervised release,
because he possesses material depicting sexually explicit conduct, including sadistic abuse of
minors. See Petition for Revocation at 1-2.
Case 1:12-cr-02211-MLG Document 286 Filed 02/25/26 Page 38 of 43

- 39 -
Dates’ special conditions of supervised release prohibit him from “viewing or possessing
any material that depicts sexually explicit conduct as defined in 18 U.S.C. § 2256, including
images, books, writings, drawings, video games, or videos depicting actual sexual intercourse.”
Petition for Revocation at 2. In its Findings of Fact, the Court resolves the parties’ factual dispute
regarding whether the Wikipedia article at issue “depicts” or merely “describes” sexual assault,
rape, and torture. Findings of Fact, supra, n.7. The remaining question, therefore, is a legal one -
- 	whether 	the 	Wikipedia 	article 	depicting 	sexual 	assault, 	rape, 	and 	torture 	falls 	within
§ 2256(2)(A)’s definition of “sexually explicit conduct.”
Dates narrows the dispute. He concedes that the conduct that the article describes includes
rape, sexual assault, and torture. 	See 2025 Tr. at 6:19-21 (Elsenheimer). 	Indeed, Dates
acknowledges that “[i]f it went into graphic depiction of what [] the torture or the rape or the sexual
assaults [were] then that would depict torture in a way that [is] . . . sexually explicit conduct.”
2025 Tr. at 6:19-21 (Elsenheimer). 	The Court understands Dates to argue that the material’s
permissibility depends on the degree of explicitness, rather than on whether the material depicts
sexually explicit conduct at all. The Court does not agree with that argument.
The Court concludes that Dates violates the conditions of his supervised release by
possessing material § 2256(2)(A) defines as depicting sexually explicit conduct. 	Section
2256(2)(A)(iv) expressly includes the phrase “sadistic abuse” to describe “sexually explicit
conduct.” 	18 U.S.C. § 2256(2)(A)(iv). 	As the Court explains above, “sadistic abuse” refers to
conduct in which one person inflicts physical or psychological pain, or humiliation, on another
person for the purpose of sexual gratification. Law Regarding 18 U.S.C. § 2256, supra, at 37.
Here, the Wikipedia article depicts Dean Corll and another assailant inflicting pain and
humiliation on minor victims for Corll’s sexual gratification. 	See Dean Corll, Wikipedia,
Case 1:12-cr-02211-MLG Document 286 Filed 02/25/26 Page 39 of 43

- 40 -
https://en.wikipedia.org/wiki/Dean_Corll (last visited Jan. 7, 2025). 	Dates does not dispute the
United States’ characterization of Corll as a figure known to “sexually abuse and sexually torture
minor boys before he would kill them.” 2025 Tr. at 8:1-5 (Roybal). The infliction of pain and
humiliation for sexual gratification is why Corll is infamous, and sadistic abuse is what the article
describes. The Court’s Findings of Fact set forth the specific language Dates saves from the article,
including that Corrl carries the victims “into his bedroom and tied them to opposite sides of his
torture board,” placing one victim on his stomach and the other on her back; Corrl removing “the
adhesive tape from Kerley’s mouth before informing him of his intentions to ‘look up’ his anus”;
and the other perpetrator cutting away the jeans and underwear of a victim with a eighteen-inch
hunting knife as Corrl assaults and tortures the other victim. Findings of Fact, supra, n.7. These
horrific acts take place against the background of the victims’ “writhing, pleading and shouting.”
Findings of Fact, supra, n.7.
The Court concludes that this language depicts conduct in which Corll inflicts physical and
psychological pain and humiliation on the victims for his sexual gratification, bringing the conduct
within § 2256’s definition of sexually explicit conduct. See 18 U.S.C. § 2256(2)(A)(iv). To the
extent that Dates asks the Court to engage in a line-drawing exercise about whether the material is
“sexually explicit enough,” the Court does not think that is the question; if the material is sexually
explicit, it is by definition sexually explicit enough to come within § 2256. 	2025 Tr. at 17:6-8
(Court)(“So when I said a minute ago this is not sexually explicit enough you didn’t embrace that,
but is that not what your argument is?”). Dates’ conditions of supervised release prohibit him from
viewing or possessing material that depicts sexually explicit conduct; they do not require the
conduct to meet some heightened threshold of explicitness beyond the statutory definition. See
Judgment at 5.
Case 1:12-cr-02211-MLG Document 286 Filed 02/25/26 Page 40 of 43

- 41 -
Dates further argues that, because the material appears on Wikipedia or is only a
“historical” account of what happened, it cannot constitute sexually explicit material. 2025 Tr. at
14:5-20 (Elsenheimer). 	The implicit argument Dates makes is that Wikipedia censors out any
sexually explicit conduct, because it is a public website or that historical accounts are immune
from 	falling 	within 	§ 2256’s 	definition 	of 	sexually 	explicit 	conduct. 	That 	argument 	is
unpersuasive. 	Dates conflates common social understandings of sexually explicit material with
the statutory definition in § 2256. Congress is free to define sexually explicit conduct by standards
independent of social norms or of a particular website’s editorial practices. This case illustrates
that distinction. While an average Wikipedia reader may not consider the article sexually explicit
for general historical purposes, the same material may nevertheless fall within § 2256’s definition,
because, as here, the article depicts sadistic abuse.
This conclusion accords with the purposes of supervised release and revocation, which
include protecting the public and assisting offenders in reintegrating into society as law-abiding
citizens. See United States v. Gutierrez, No. CR 15-3955 JB, 2021 WL 2589127 (D.N.M. June
24, 2021)(Browning J.)(stating that one of supervised release’s goals is to ease the defendant “back
into society after he has served a prison term, and try to help him stay on the straight and narrow
path as he comes back into society” (citing 18 U.S.C. §§ 3553(a)(1)-(7))). Dates pleads guilty to
distributing visual depictions of minors engaged in sexually explicit conduct. See PSR ¶ 2, at 4.
That offense involves material portraying minors enduring pain and humiliation for the sexual
gratification of others. 	See PSR ¶ 15, at 5 (mentioning Dates’ binder that “described how to
butcher and strangle children”). Preventing Dates from possessing material that depicts the rape
and torture of minors serves both to protect the public and to reduce exposure to content that may
function as a trigger for reoffending. The relevant inquiry is whether the material depicts sexually
Case 1:12-cr-02211-MLG Document 286 Filed 02/25/26 Page 41 of 43

- 42 -
explicit conduct as § 2256 defines that phrase, and not whether it appears on Wikipedia, nor
whether the conduct is historically accurate. Accordingly, the Court concludes that the Wikipedia
article constitutes sexually explicit material within § 2256(2)(A)(iv)’s meaning, and the United
States proves by a preponderance of the evidence that Dates violates the conditions of his
supervised release.
II. 	DATES DOES NOT VIOLATE HIS TERMS OF SUPRVISED RELEASE WHERE
HE SEARCHES FOR AND VIEWS AN IMAGE OF A SERIAL KILLER’S
ADOLESCENT VICTIM.
Dates’ special conditions of supervised release prohibit him from “viewing or possessing
any material that depicts sexually explicit conduct as defined in 18 U.S.C. § 2256, including
images, books, writings, drawings, video games, or videos depicting actual sexual intercourse.”
Petition for Revocation at 2. In its Findings of Fact, the Court resolves the parties’ factual dispute,
finding the image does not contain nudity. See Findings of Fact, supra, n.5. Accordingly, here,
the Court answers the legal question whether the image falls within § 2256(2)(A)’s definition of
“sexually explicit conduct.” The image is not sexually explicit conduct.
The image that Dates saves does not constitute sexually explicit conduct. 	Section 2256
limits sexually explicit conduct to five areas of conduct, including sexual intercourse, bestiality,
masturbation, sadistic or masochistic abuse, or lascivious exhibition of the anus, genitals, or pubic
area of any person. See 18 U.S.C. §§ 2256(2)(A)(i)-(v). “Polaroid Boy,” as the picture is known,
is a Polaroid of an unknown Corrl victim. 2025 Tr. at 8:11-13 (Roybal). The image, as the Court
determines, does not depict another person, an animal, or nudity; nor does it show anything beyond
a potentially smiling face. 	The United States does not articulate any basis on which the image
qualifies as sexually explicit conduct other than its assertion that the image contains nudity, which
the Court determines the image does not contain nudity. Accordingly, the Court concludes that
Case 1:12-cr-02211-MLG Document 286 Filed 02/25/26 Page 42 of 43

- 43 -
Dates does not violate the special condition of supervised release prohibiting him from viewing or
possessing material that § 2256 defines as depicting sexually explicit conduct, because the United
States does not prove by a preponderance of the evidence that the image falls within the conduct
that § 2256 proscribes.
IT IS ORDERED that the: (i) Defendant Richard Dates has violated the condition that he
is “prohibited from viewing or possessing any material that depicts sexually explicit conduct as
defined in 18 U.S.C. 2256, including images, books, writings, drawings, video games, or videos
depicting actual sexual intercourse. This also includes computer or computer-generated images or
pictures, whether made or produced by electronic, mechanical, or other means”; (ii) Dates commits
a Grade C violation pursuant to the United States Sentencing Guidelines § 7B1.1; (iii) Dates’
criminal history category is I; and (iv) Dates’ grade C violation and criminal history category of I,
under the United States Sentencing Guidelines § 7B1.1, establishes a revocation imprisonment
range of 3 to 9 months.
________________________________
UNITED STATES DISTRICT JUDGE
Counsel:
Ryan Ellison
United States Attorney
Jaymie L. Roybal
Assistant United States Attorneys
United States Attorney’s Office
Albuquerque, New Mexico
Attorneys for the Plaintiff
Aric G. Elsenheimer
Federal Public Defender
Albuquerque, New Mexico
Attorney for the Defendant
Case 1:12-cr-02211-MLG Document 286 Filed 02/25/26 Page 43 of 43