Criminal- Sex abuse defendant barred from accessing legal pornography

Where the district court relied on individualized testimony from the sex abuse defendant‘s “certified sex offender treatment provider” – that his use of pornography was a barrier to his treatment – when it imposed a special condition prohibiting him from accessing or possessing legal pornography, its order was affirmed.

Background

After Joseph D. Castellano pleaded guilty to transporting child sexual abuse material, the district court sentenced him to 144 months in prison. It also imposed lifetime supervised release, including a special condition that barred Castellano from accessing or possessing “any pornographic material or pictures displaying nudity or any magazines using juvenile models or pictures of juveniles.” This court reversed the district court’s imposition of that special condition based on the government’s failure to offer “any individualized evidence, like the testimony from a witness responsible for Castellano’s treatment,” that ensured the special condition reasonably related to the goals of his supervision.

Since then, Castellano has violated his supervised release conditions several times. The district court has revoked his supervised release and returned him to prison twice. At the most recent revocation hearing, the court imposed a special condition prohibiting Castellano from accessing or possessing legal pornography.

Individualized

To impose a supervised release condition restricting legal pornography, the government must “put forth individualized evidence linking [legal] pornography to [the supervisee’s] criminal conduct or rehabilitation and recidivation risk.” The district court must also “provide an individualized explanation for the condition.”

According to Castellano, the testimony of Amber Hill, Castellano’s “certified sex offender treatment provider,” “does not pass the individualized-evidence test” because she testified that she would never recommend that “a person found guilty of possessing, receiving, or viewing child [sexual abuse material]” have access to legal pornography. That’s wrong.

To the extent that Hill engaged in any categorical reasoning, it didn’t relate to Castellano’s offense—transporting child sexual abuse material. Counsel never asked whether Hill would always recommend a legal pornography ban for someone convicted of transporting child sexual abuse material. Because Hill didn’t say anything about Castellano’s only crime of conviction, under this court’s deferential standard of review, the district court didn’t err in considering her testimony.

Even if Hill had categorically recommended that any person convicted of transporting child sexual abuse material not have access to legal pornography, the district court didn’t err in imposing the special condition. Hill provided an individualized assessment for why a legal pornography restriction was necessary for Castellano. Based on six years of clinical observation and treatment, Hill determined that Castellano’s use of pornography was a barrier to his treatment.

The district court relied on individualized evidence, not categorical reasoning. The court twice clarified that it was “focusing on the reason [Hill is] making this recommendation for Mr. Castellano” and that “[w]e are talking about Mr. Castellano and not every other individual [who] might be convicted of child [sexual abuse material].”

Mandate rule

Castellano contends that the mandate rule barred the district court from imposing a special condition prohibiting legal pornography. Because “the issue of a supervised release condition banning legal pornography was already litigated by the parties and decided by this Court” Castellano maintains that “the government should not have another opportunity to try to prove up a similar condition banning legal pornography.” The court disagrees.

Because the district court complied with this court’s decision in Castellano I and because that opinion didn’t bar the district court from later imposing a legal pornography ban were circumstances to change, the mandate rule isn’t applicable. Even if it were, “significant new evidence” provides an exception.

Since this court’s prior opinion, Castellano voluntarily consented to a new special condition prohibiting his access to legal pornography online. The district court twice found that he violated multiple conditions of his supervised release. And the government introduced new evidence post-dating this court’s decision to demonstrate that his condition has worsened and that access to legal pornography is undermining his treatment.

Timeliness

Castellano contends that the government can’t bring “belated challenges to supervised release conditions on factual or legal premises previously available” to it, citing United States v. McLeod, 972 F.3d 637 (4th Cir. 2020). There, this court concluded that a defendant’s belated motion to modify supervised release conditions is permissible only when there are “new, unforeseen, or changed legal or factual circumstances” that weren’t present at the time of the original sentencing.

Castellano would extend this rule to the government. This court declines to do so. And, in any event, doing so wouldn’t help Castellano because the record provides new facts to support modification of the supervised release conditions.

Affirmed.

United States v. Castellano, Case No. 25-4012, April 6, 2026. 4th Cir. (Diaz), from EDVA at Norfolk (Jackson). Michael Lawrence Tagliabue for Appellant. Jacqueline Romy Bechara for Appellee. VLW 026-2-117. 15 pp.

Full-Text Opinion

VLW 026-2-117
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