United States v. Sisney (10th Cir. 2025): Strict Enforcement of Plain-Error Briefing for Unpreserved Challenges to Supervised-Release Conditions

Introduction

This commentary analyzes the Tenth Circuit’s Order and Judgment in United States v. Sisney, No. 24-5130 (10th Cir. Sept. 30, 2025), affirming a supervised-release condition that prohibits a defendant from possessing or viewing both child and adult pornography. Although the appeal nominally targeted the breadth and constitutionality of that condition, the panel (Judges Tymkovich, Carson, and Federico) did not reach the merits. Instead, it reaffirmed and rigorously applied a procedural rule: when a defendant fails to make a timely, specific objection in the district court and then fails to brief plain error in the opening appellate brief, appellate review is waived.

The case arose after Richard Alan Sisney pleaded guilty to counts involving possession and receipt of child pornography. At resentencing, the district court imposed 121 months of imprisonment and ten years of supervised release with special sex-offender conditions, including a prohibition on possessing or viewing “books or any form of writings, images or videos” depicting or describing sexually explicit conduct or child pornography as defined in 18 U.S.C. § 2256. Sisney argued on appeal that the district court abused its discretion by imposing that condition without an individualized assessment and explanation. The Tenth Circuit held that, because Sisney did not properly preserve the issue and then failed to present a plain-error argument in his opening brief, he waived appellate review. The panel also added a nonbinding observation—unjoined by Judge Federico—that even on plain-error review, relief would likely be unavailable on this record.

Summary of the Opinion

The panel affirmed the imposition of a supervised-release condition banning possession or viewing of child and adult pornography.
The court held that plain-error review applies when a defendant fails to make a timely and specific objection to a special condition at sentencing or to the PSR recommending it.
Because Sisney did not make a timely, specific objection below and failed to brief plain error in his opening brief (addressing it only in reply), the court deemed the issue waived and declined to review the merits.
The court emphasized it will not craft a plain-error argument for an appellant who fails to brief it properly.
In footnote 5, the court suggested that even if it reached plain error, Sisney likely could not satisfy the “substantial rights” prong given the record; Judge Federico did not join this footnote.

Factual and Procedural Background

Underlying Offense Conduct

Following an FBI investigation into the possession and distribution of child pornography, agents searched Sisney’s residence and recovered 958 images and 1,418 videos involving prepubescent children and young teens, including sadomasochistic depictions of bound, gagged, and abused minors. He was indicted on four counts involving receipt, possession, and distribution; he pled guilty to all counts without a plea agreement. Later, the government dismissed two counts.

Initial Sentencing and Appeal

At the first sentencing, the district court imposed two concurrent 135-month terms and ten years of supervised release, including special sex-offender conditions that barred possession or viewing of both child and adult pornography. The court relied on the PSR’s recommendation and explained that the condition was necessary to protect the public because it is often impractical to distinguish between adult and teenage individuals in sexually oriented materials. Sisney did not object to this condition in the PSR or at sentencing and did not challenge it on appeal. He appealed a different issue related to acceptance of responsibility under U.S.S.G. § 3E1.1(b); the government conceded error, and the case was remanded for de novo sentencing.

Resentencing

On remand, the revised PSR applied the previously contested one-level reduction and again recommended the same special conditions. Sisney did not object to the PSR or to the special conditions. The district court sentenced him to the bottom of the Guidelines range (121 months) and reimposed the special sex-offender conditions. When the court asked if there was “anything else from the defense,” after imposing sentence and remanding Sisney to the Marshals Service, defense counsel noted a general, last-moment objection to the special condition as “unconstitutional,” without elaboration. The court noted the objection.

Issues on Appeal

Sisney argued that the district court abused its discretion by imposing a ban on adult pornography without conducting an individualized assessment of his circumstances and without adequate explanation of how the ban furthered the objectives of supervised release. He did not argue plain error in his opening brief. Only after the government raised preservation problems did he discuss plain error in his reply.

Analysis

Precedents Cited and Their Influence

United States v. Mike, 632 F.3d 686, 691 (10th Cir. 2011): Establishes that when a defendant contemporaneously objects to a supervised-release condition at the time it is announced, appellate review is for abuse of discretion. Sisney did not object in that manner; therefore, Mike underscores that the ordinary path to merits review was not available.
United States v. Leffler, 942 F.3d 1192, 1196–98 (10th Cir. 2019): Holds that when an appellant both fails to preserve an issue below and fails to make a plain-error argument in the opening brief, the issue is deemed waived, and the court ordinarily declines to review it at all. Leffler is the central authority driving the outcome: Sisney’s opening brief argued abuse of discretion, not plain error, and his belated reply-brief discussion could not cure the defect.
United States v. Henry, 979 F.3d 1265, 1268–69 (10th Cir. 2020): Clarifies that a defendant must raise the specific objection in the district court to preserve it. A generic or different objection is insufficient, and failure results in plain-error review. Henry emphasizes both the need for specificity and the appellant’s burden on plain error.
United States v. Finnesy, 953 F.3d 675, 689 (10th Cir. 2020): A “general request” or nonspecific objection is inadequate to preserve the precise issue later argued on appeal, pushing review into the plain-error posture.
United States v. Rodebaugh, 798 F.3d 1281, 1313 (10th Cir. 2015): Explains that a specific objection is necessary to alert the district court and allow correction in the first instance; otherwise, appellate review is constrained. This principle supported the panel’s insistence on timely, specific objections at sentencing or to the PSR.
United States v. Wright, 848 F.3d 1274, 1281 (10th Cir. 2017): Declined to review for plain error where the appellant incorrectly argued abuse of discretion. Wright is an almost direct analogue: Sisney used the wrong standard in his opening brief and thus waived the already-forfeited claim.
United States v. Isabella, 918 F.3d 816, 844 (10th Cir. 2019) and United States v. MacKay, 715 F.3d 807, 831 n.17 (10th Cir. 2013): Recognize a limited discretionary exception allowing an appellant to raise plain error in a reply brief after the government asserts waiver when doing so enables robust adversarial testing and the error is sufficiently apparent. The panel declined to invoke that discretion here.
United States v. Hahn, 551 F.3d 977, 982 (10th Cir. 2008): Supports the district court’s reliance on prior notice through a PSR; where a defendant has notice that a special condition will be imposed and fails to object, preservation problems follow. Hahn undercuts Sisney’s claim that he objected at the “first possible moment.”
United States v. Barela, 797 F.3d 1186, 1193 n.3 (10th Cir. 2015): Quoted for the statutory definition of “sexually explicit conduct” under 18 U.S.C. § 2256(2)(A), pertinent to the breadth and clarity of the condition imposed.
United States v. Doty, No. 24-5091, 2025 WL 2525198, at *4 (10th Cir. Sept. 3, 2025): Cited in footnote 5 for the proposition that, even if there were explanatory shortcomings, an error may not affect substantial rights when the record strongly supports the condition. The panel suggested this logic would likely foreclose plain-error relief for Sisney, though Judge Federico did not join this footnote.

Legal Reasoning

The panel’s reasoning unfolds in two steps: the standard of review, and the consequences of inadequate briefing.

Standard of review—plain error, not abuse of discretion. Under Mike and related cases, abuse-of-discretion review applies only when a defendant timely and specifically objects to a supervised-release condition at sentencing (or to the PSR’s recommendation). Sisney did neither: he registered only a conclusory, last-moment objection—after the sentence had been imposed and he had been remanded—asserting unconstitutionality without explanation. The objection did not prompt district-court clarification and did not cure earlier failures to object despite clear notice in successive PSRs and at two sentencings. Under Henry, Finnesy, and Rodebaugh, the issue was forfeited, and plain-error review applied.
Waiver by briefing the wrong standard. Under Leffler and Wright, when an appellant both fails to preserve an issue and then fails to brief plain error in the opening brief, the court ordinarily deems the issue waived and declines to review it at all. That is exactly what happened. Sisney argued abuse of discretion; he did not argue plain error until his reply brief, after the government identified the preservation defect. The panel declined to accept this belated pivot. Though MacKay and Isabella recognize a narrow, discretionary path for considering a reply-brief plain-error argument in rare cases to serve the adversarial process, the panel found no basis to exercise that discretion here, particularly given Sisney’s repeated opportunities to object and the conclusory nature of his late objection.

Because the court resolved the case on waiver grounds, it did not reach the First Amendment or statutory arguments about the breadth or tailoring of the adult-pornography restriction. In a nonjoined footnote, however, the court suggested that even if it reached plain-error review, relief would likely be unavailable because any explanatory deficiency did not affect substantial rights in light of the compelling record basis for the condition: Sisney possessed material involving prepubescent and teen victims, and probation officers face real-world difficulty distinguishing adult from teen performers in sexually oriented content, making the condition a reasonable tool to protect the public and deter recidivism. Judge Federico expressly did not join this footnote, underscoring that the panel’s holding rests solely on the waiver analysis.

Potential Impact

While this Order and Judgment is nonprecedential, it carries persuasive weight in the Tenth Circuit and beyond on two fronts:

Procedural rigor in challenging supervised-release conditions. The opinion reinforces a strict preservation-and-briefing regime:
- Defendants must lodge timely, specific objections to PSRs and at sentencing when special conditions are announced.
- If preservation is in doubt, opening briefs must argue plain error in the alternative. Waiting until a reply brief is unlikely to suffice.
- Generic objections (e.g., “unconstitutional”) without a stated basis or request for resolution will not alert the district court or preserve issues for abuse-of-discretion review.
Substantive backdrop for adult-pornography bans. Although the panel did not reach the merits, footnote 5 (citing Doty) signals the kinds of record features that can make it difficult for defendants to show prejudice under plain-error review: large quantities of child sexual abuse material involving teens, the difficulty of distinguishing adults from teens in sexually oriented content, and the need to facilitate effective supervision and protect the public. Because Judge Federico did not join the footnote, its persuasive value is tempered; still, it provides a window into how some panels may assess “substantial rights” in future plain-error challenges.

For district judges, the decision is a reminder that articulating reasons tailored to the defendant and the § 3553(a) factors helps both effective supervision and appellate defensibility. For defense counsel, the case is a cautionary tale: preservation and proper briefing are outcome-determinative even when substantial constitutional questions are implicated.

Complex Concepts Simplified

Supervised-release conditions: These are court-imposed rules a defendant must follow after release from prison. Special conditions (like bans on certain materials) must be reasonably related to statutory sentencing goals and impose no greater deprivation of liberty than necessary. See 18 U.S.C. § 3583(d).
Preservation vs. forfeiture vs. waiver:
- Preservation means raising a specific objection at the right time (e.g., to the PSR, or when the court announces the condition) so the district court can address it.
- Forfeiture is an unintentional failure to object in time. Forfeited issues are reviewed for plain error if properly briefed.
- Waiver in the appellate-briefing sense here means relinquishing appellate review by failing to argue the correct standard (plain error) in the opening brief after an issue has been forfeited below.
Plain-error review: A demanding, four-part test requiring the appellant to show (1) an error, (2) that is clear or obvious, (3) that affected substantial rights (usually meaning a reasonable probability of a different outcome), and (4) that seriously affects the fairness, integrity, or public reputation of judicial proceedings. Failure to brief this standard typically ends the appeal.
“Sexually explicit conduct”: Defined in 18 U.S.C. § 2256(2)(A) and includes actual or simulated sexual intercourse, bestiality, masturbation, sadistic or masochistic abuse, or lascivious exhibition of the genitals or pubic area. The district court’s condition incorporated this definition to delineate what is prohibited.

Practical Takeaways for Litigants

Object early and specifically: If a PSR recommends a contested condition (e.g., an adult-pornography ban), file written objections specifying constitutional and statutory grounds (overbreadth, tailoring under § 3583(d), First Amendment implications, vagueness, etc.). Renew precise objections at sentencing when the court announces the condition.
Build a record: Ask the district court to explain why the condition is necessary for this defendant, how it relates to § 3553(a) factors, and why narrower alternatives are insufficient.
Brief plain error in the alternative: If preservation is questionable, argue both abuse of discretion and plain error in the opening brief. Do not wait for the reply brief.
Mind definitional scope: Conditions tied to statutory definitions (like § 2256(2)) can be broad, reaching not only images but also writings and descriptions. Tailoring and clarity matter—frame objections accordingly.

Notes on the Panel’s Footnote 5 and Concurrence

Footnote 5’s limited weight: The panel’s speculation that any error would not affect substantial rights relied on Doty and the facts of Sisney’s case. Judge Federico did not join this footnote, and the panel expressly did not reach the merits. Accordingly, footnote 5 is dicta and, given the nonprecedential nature of the Order and Judgment, should be treated as modestly persuasive at most.
Nonprecedential disposition: The court explicitly states that the Order and Judgment is not binding precedent except under law-of-the-case, res judicata, and collateral estoppel doctrines. It may be cited for persuasive value under Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

Conclusion

United States v. Sisney does not resolve the substantive First Amendment and tailoring debates over adult-pornography bans as special conditions of supervised release. Instead, it delivers a strong procedural message: appellate courts in the Tenth Circuit will strictly enforce preservation rules and the requirement to brief plain error in the opening brief. Failing to object specifically at sentencing (or to the PSR) and failing to argue plain error at the outset of the appeal will typically result in waiver and affirmance without merits review.

For practitioners, the case underscores essential discipline: preserve objections with specificity, create a record inviting the district court’s on-the-record rationale, and brief plain error whenever preservation is uncertain. Although a nonprecedential Order and Judgment, Sisney will be a staple citation for appellees pressing waiver and for panels seeking to uphold district court judgments where appellants have not attended carefully to preservation and briefing duties. The panel’s dicta in footnote 5, although not joined by all members, also signals that future plain-error challenges to adult-pornography bans may struggle on the “substantial rights” prong where the record reflects teen victims, large volumes of child sexual abuse material, and supervision concerns about distinguishing adult from teen performers. The headline rule, however, is procedural: in the Tenth Circuit, unpreserved challenges to supervised-release conditions rise or fall with rigorous, timely objections and properly framed plain-error briefing.