United States v. Blair
Opinion
This case requires us to decide whether a special condition of supervised release that states that the "defendant's use of computers and Internet access devices must be limited to those the defendant requests to use, and which the probation officer authorizes," R. Vol. I at 97, involves a "greater deprivation of liberty than is reasonably necessary for" deterring criminal activity, protecting the public, and promoting a defendant's rehabilitation in contravention of
I. BACKGROUND
In 2013, the police searched Michael Blair's home as part of an investigation that is unrelated to this case. During the search, the police discovered a hard drive belonging to Blair with more than 700,000 images of child pornography on it. Ultimately, Blair was charged with and plead guilty to one count of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2).
Blair's plea agreement anticipated that the district court would calculate his total offense level as twenty-eight, which would have resulted in an advisory guideline sentencing range of 78-97 months' imprisonment. Blair waived his right to appeal any sentence within that guideline range. The probation office prepared a Presentence Investigation Report (PSR), which calculated Blair's total offense level as thirty-three.
*1273 The five levels not anticipated by the plea agreement were added because, after Blair's plea was entered, the government received statements from Blair's younger sister and his son alleging that Blair had sexually abused them when they were minors. Blair denied those allegations, but the district court heard testimony from both individuals and found them "very credible" and accordingly applied the five-level enhancement for a "pattern of activity involving the sexual abuse or exploitation of a minor." U.S.S.G. § 2G2.2(b)(5).
According to the sentencing guidelines, Blair's total offense level of thirty-three and his category I criminal history resulted in an advisory guidelines sentencing range of between 135-168 months' imprisonment. However, the maximum sentence Blair could receive under the statute was 120 months, see 18 U.S.C.A. § 2252A(b)(2). Blair moved for a downward departure based on mitigating circumstances, including his age (63), physical health, mental illness, caretaker responsibilities for his wife who is cognitively deficient, history of suffering abuse as a child, and history of military service. The district court denied the motion and imposed the statutory maximum sentence of ten years' imprisonment plus seven years of supervised release.
After calculating Blair's sentence, the district court imposed, among several others, the following special conditions of supervised release (Blair objects only to the underlined sentence):
6. The defendant's use of computers and Internet access devices must be limited to those the defendant requests to use, and which the probation officer authorizes. The defendant must 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.
7. You must allow the probation officer to install software/hardware designed to monitor computer activities on any computer you are authorized by the probation officer to use. The software may record any and all activity on the computer, including the capture of keystrokes, application information, Internet use history, email correspondence, and chat conversations. A notice will be placed on the computer at the time of installation to warn others of the existence of the monitoring software on the computer. You must not attempt to remove, tamper with, reverse engineer, or in any way circumvent the software/hardware.
R. Vol. I at 97.
Blair now appeals.
1
First, Blair argues that his ten-year sentence is substantively unreasonable. We disagree and affirm Blair's sentence. Second, Blair argues that the special condition of supervised release underlined above is more restrictive "than is reasonably necessary" in violation of
*1274 II. DISCUSSION
A. Prison Sentence Imposed was Substantively Reasonable
First, Blair argues that the ten-year sentence the district court imposed is substantively unreasonable. We review substantive reasonableness challenges using an abuse of discretion standard to determine "whether the length of the sentence is reasonable given all the circumstances of the case in light of the factors set forth in
Applying the sentencing guidelines, the district court calculated Blair's total offense level as thirty-three and his criminal history as category I, resulting in an advisory-guidelines sentencing range of between 135-168 months' imprisonment. However, the district court sentenced Blair to 120 months' imprisonment, an amount below that range, because by statute his offense was punishable by not more than ten years in prison,
see
18 U.S.C.A. § 2252A(b)(2), and U.S.S.G. 5G1.1(a) provides that where the "statutorily authorized maximum sentence is less than the minimum of the applicable guideline range, the statutorily authorized maximum sentence shall be the guideline sentence." When a sentence is imposed in this way, it is considered "within" the applicable guideline range and may be presumed reasonable.
United States v. Sangiovanni
,
As an initial matter, Blair argues that, even though his sentence falls within the applicable range calculated under the relevant guideline ( § 2G2.2 ), it is unreasonably long because section 2G2.2 is "inherently flawed" and lacks an empirical basis. Aplt. Br. at 22. We have heard and rejected this argument before.
Franklin
,
Blair asserts that the district court failed to give sufficient weight to three aspects of his personal history, his (1) difficult childhood, (2) poor mental and physical health, and (3) military service. We disagree. Blair asserts that the district court's finding that he "didn't have an abusive childhood" was clearly erroneous because he presented evidence that his father was abusive and an alcoholic. Aplt. Br. at 21 n.10. However, as the district court pointed out, the PSR supported its finding. R. Vol. VI at 255. The PSR stated that, although Blair's father was abusive, Blair "disavowed being the victim of any sexual abuse" and "reported a positive relationship with both parents, and with his sister Betsy." R. Vol. II.A at 18. As for Blair's concerns about his health, the district court explained that Blair's "physical and medical conditions do not constitute an extraordinary physical impairment" because Blair's "condition is not so unusual as to distinguish him from any other defendants over the age of 60" and the "Bureau of Prisons, especially with the aging prison population, has had to become adept in treating all types of illness and disabled individuals." R. Vol. VI at 251.
*1275 Finally, although the district court did not mention Blair's military service specifically, it gave other reasons for its sentence, including its opinion that ten years was a just punishment to reflect the seriousness of the offense, which affected many victims who will "endure unimaginable physical and emotional pain for the entire rest of their lives," including Blair's sister and son and the thousands of people depicted in the images that he downloaded. R. Vol. VI at 295. Blair does not argue that the district court committed procedural error by failing to address certain of his arguments, and none of the personal characteristics he highlights on appeal are sufficient to rebut the presumption of reasonableness that we must apply to his within-guidelines sentence. The district court's decision to impose a sentence of ten years' imprisonment appears reasonable to us in light of all the circumstances of the case. Accordingly, we affirm Blair's prison sentence.
B. Special Condition Violated
Blair also challenges a special condition of supervised release imposed by the district court banning his use of computers and Internet devices in the absence of permission from his parole officer. "We review the district court's decision to impose special conditions of supervised release for abuse of discretion."
United States v. Wayne
,
(1) the conditions are reasonably related to "the nature and circumstances of the offense and the history and characteristics of the defendant," the need "to afford adequate deterrence to criminal conduct," the need "to protect the public from further crimes of the defendant," and the need "to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner," seeid. §§ 3583(d)(1), 3553(a)(1), and 3553(a)(2)(B)-(D) ; and
(2) the conditions involve "no greater deprivation of liberty than is reasonably necessary for" deterring criminal activity, protecting the public, and promoting a defendant's rehabilitation, seeid. §§ 3583(d)(2), 3553(a)(2)(B)-(D).
Here, the district court imposed a special condition of supervised release that included the following restriction:
The defendant's use of computers and Internet access devices must be limited to those the defendant requests to use, and which the probation officer authorizes.
R. Vol. I at 97. Blair argues that this special condition is not reasonably related to the goals of supervised release, and, even if it is so related, it involves a greater deprivation of liberty than is reasonably necessary to achieve those goals. Without deciding Blair's first argument, we agree with his second argument, that the district court's special condition involves a greater deprivation of liberty than is reasonably necessary to achieve the goals of supervised release in violation of section 3583(d)(2). It is clear from our published cases that a special condition of release that gives the probation office discretion to ban completely a defendant's use of the Internet, as this condition does, violates that section. Because the special condition in this case allows for such a ban, we *1276 vacate the special condition as an abuse of discretion.
Three published cases guide our analysis. First, in
United States v. White
, we overturned a special condition that prohibited the defendant from "possess[ing] a computer with Internet access throughout his period of supervised release."
In
United States v. Walser
, with
White
as the only case in the background, we held that it did not amount to
plain error
for the district court to impose "a special condition of supervised release barring [the defendant's] use of or access to the Internet without the prior permission of the United States Probation officer" for a three-year term.
It may nevertheless be questionable whether the condition imposes "no greater deprivation of liberty than is reasonably necessary" to meet the goals referred to in18 U.S.C. § 3583 (d), since the vagueness of the special condition leaves open the possibility that the probation office might unreasonably prevent Mr. Walser from accessing one of the central means of information-gathering and communication in our culture today. We are not persuaded this concern rises to the level necessary to clear the extremely high hurdle set by the plain error standard, however, and we decline to overturn the condition imposed by the district court.
Then, in
United States v. Ullmann
, we reviewed for an abuse of discretion a condition of release that allowed the defendant to use computers and the Internet so long as he "abide[d] the policies of the United States Probation Officer's Computer and Internet Monitoring Program which include[d] restrictions and/or prohibitions related to: computer and Internet usage."
In addition to relying on those oral modifications, we were persuaded in
Ullmann
that imposing that special condition was not an abuse of discretion because we were told that the probation office intended to impose "the standard sex offender supervision condition" under its new Computer and Internet Monitoring Program, and the probation office's manual explained that, under that system, "[o]ffenders are permitted to use a computer and access the Internet, with the clear understanding that their computer activities are being monitored."
The special condition that the district court imposed in this case, however, both on its face and when read in light of the district court's statements at sentencing, completely bans Blair's use of the Internet and offline computers, unless and until the probation office makes some future exceptions to the ban, which it has no obligation to entertain nor to grant. As a result, the condition involves a "greater deprivation of liberty than is reasonably necessary" in contravention of
The special condition of supervised release that the district court imposed here reads:
The defendant's use of computers and Internet access devices must be limited to those the defendant requests to use, and which the probation officer authorizes.
R. Vol. I at 97. Both parties agree that that restriction is intended to apply to Blair's use of both offline computers and Internet-connected devices that have the ability to browse the Internet, including computers. 3 However, the parties disagree about how broadly the condition's prohibitions sweep and whether the breadth of its scope contravenes sections 3553 and 3583. We agree with Blair that this special condition is overbroad.
Blair argues that, on its face, the special condition would prohibit his use of a computer for benign activities, such as writing a novel or checking the weather, without
*1278
first obtaining permission from his probation officer ("defendant's use of computers ... must be limited to those the defendant requests to use"). We agree. The special condition is written in the negative. Unlike the condition that we upheld in
Ullmann
, which allowed the defendant to use computers and the Internet so long as he "abide[d] the policies of the United States Probation Officer's Computer and Internet Monitoring Program which include[d] restrictions ... related to: computer and Internet usage,"
The government counters that there is nothing in the record suggesting the district court intended the condition to reach so far. We observe, however, that nothing in the record
limits
the breadth of the plain language of the condition, and, if anything, the record suggests that the district court intended for the condition to operate as a complete ban unless the probation office decides otherwise. We have held that "an oral pronouncement of sentence from the bench controls over written language,"
Ullmann
,
The defendant argues that this objection, or this restriction, rather, on his computer is too vague and overbroad.
The defendant committed this offense via the use of the computer or other electronic devices, combined with the use of the Internet. Given this fact, his use the computers [sic] and the internet do need to be closely monitored and supervised to reduce the risk of re-offending and to increase community safety.
The portion of the disputed condition does allow for the defendant to request to use computers and internet access while under supervision, and allows for his future probation officer to authorize that usage if deemed safe and appropriate given the particular circumstances presented by the defendant.
The Court finds it appropriate that the condition involves no greater deprivation of liberty than reasonably necessary based on the facts and circumstances of this offense and the characteristics of this defendant.
The Court finds it appropriate that approval of the defendant's access to the internet should be addressed on a case-by-case basis with the defendant's probation office during his further term of supervised release. Therefore, that objection is overruled.
R. Vol. VI at 244-45. The district court explained that the special condition "allows for [Blair's] future probation officer to authorize" his usage of computers and the Internet "if deemed safe and appropriate." Id. at 245. However, the district court did not, in either its written conditions or oral clarifications, require the probation office to authorize Blair to use computers or the Internet for any purpose, giving it the authority to ban all uses.
The government also argues that the district court's condition is ambiguous and
*1279
that, as a result, we should construe it "narrowly so as to avoid affecting [a] significant liberty interest." Aple. Br. at 14 (quoting
United States v. Bear
,
In a similar argument, the government urges us to presume even in the absence of limiting language that the probation officer charged with monitoring Blair will enforce the district court's special condition in a reasonable way. This court adopted a reasonableness presumption in
United States v. Vinson
,
The government lastly suggests that the proper time for Blair to raise his desire to use computers and the Internet for harmless purposes is down the road when he meets with his probation officer and discovers how the probation office intends to enforce the condition. The government argues that, if the probation office enforces the special condition in an unreasonable way, Blair can then move the district court to modify the condition. However, for the reasons already mentioned, the time to bring the condition into compliance with sections 3553 and 3583 is now on direct appeal because the requirements in those sections directly govern the district court's obligations in imposing supervised release conditions. Additionally, the government's wait-and-see suggestion places an unfair burden on Blair. In order to demonstrate the unfairness of the probation officer's enforcement of the condition to the district court later on, Blair may be required to test the limits of the condition and risk violating it, which could result in his receiving additional prison time. 5 There are no cases that have been called to our attention supporting the idea that a defendant must prove that an overbroad condition of supervised release will be enforced unreasonably in order to obtain relief from it, and we decline to adopt that position in this case.
On remand, the district court must amend the challenged special condition of supervised release to bring it into compliance with the demands of sections 3553 and 3583. Those sections require special conditions of release that neither absolutely prohibit the defendant's access to computers or the Internet nor permit the probation office to achieve that result by a refusing affirmatively to allow any Internet access. The probation office is limited to imposing only those restrictions that are reasonably calculated to prevent the defendant from using a computer or the Internet to access, store, produce, or send child pornography in any form; to provide necessary restrictions to facilitate a defendant's correctional treatment so that he may be rehabilitated; and to protect the public from any further crimes of the defendant.
We share the abhorrence expressed by the dissent regarding Blair's conduct, and as noted previously we have no difficulty affirming the length of incarceration imposed by the district court. We also have no doubt that upon remand the district *1281 court will be able to fashion a new special condition of supervised release that allows the probation office to impose appropriate restrictions on Blair's use of computers and the Internet sufficient to prevent him from engaging in improper behavior without involving a greater deprivation of his liberty than is reasonably necessary to achieve the goals of 3553(a)(2)(B)-(D). Our holding is only that the district court as the sentencing court is compelled by sections 3583(d) and 3553(a) to provide meaningful guidance in its special conditions of release to the probation officers that will enforce those conditions to prevent them from denying Blair all access to computers and the Internet. 6
III. CONCLUSION
For the foregoing reasons, we affirm Blair's sentence as substantively reasonable, but we vacate the challenged special condition of supervised release and remand this case to district court to reformulate it to accord with this opinion.
BALDOCK, Circuit Judge, dissenting in part, concurring only in Part II-A:
The Court today holds the special condition-stating Defendant's "use of computers and Internet access devices must be limited to those the defendant requests to use, and which the probation officer authorizes"-imposes a greater deprivation of liberty than reasonably necessary in violation of
I.
The Court reaches its holding that the condition is impermissible because "it allows the probation office to completely ban the defendant's use of the Internet" based on its reading of
Ullmann
. Ct. Op. at 1272. In
Ullman
, we addressed a very different condition that imposed "restrictions and/or
prohibitions
related to: computer and Internet use."
The Court takes it a step further though and construes
Ullmann
to hold that if a condition "allows the probation office to completely ban the defendant's use of the Internet," then the condition imposes a greater liberty deprivation than is reasonably necessary in violation of
Far more importantly, the Court's interpretation of
Ullmann
flatly contradicts our precedent in
United States v. Bear
,
*1283 The Court today takes the opposite approach, ignoring narrow constructions of the condition and instead construing the condition in a way that ensures an unreasonable restriction of a liberty interest.
The Court's attempts to explain why
Bear
does not apply to this case fall flat. First, the Court states the condition is not ambiguous. The fact that the Court reads the condition as having open-ended language that gives the probation office "unfettered discretion" indicates, however, that the condition is ambiguous and should be construed "in a manner that does not make [it] infirm."
See
Mike
,
II.
The Court today also reads the condition at issue as one that is impermissible under
Ullmann
because it "absolutely prohibits the use of the Internet."
4
Ct. Op. at 1277. This contention, too, is plainly contradicted by our precedent. In
Walser
, we explicitly stated a condition that barred the defendant's "use of or access to the Internet without the prior permission of the United States Probation Officer" did "not completely ban[ ] [the defendant] from using the Internet" because he only had to "obtain prior permission from the probation office."
United States v. Walser
,
If binding precedent addressing the exact issue is not enough to demonstrate the condition is not a complete ban, the Court's holding is plainly contradicted by the very condition itself and its surrounding text. The condition cannot be an absolute prohibition on Defendant's use of computer and Internet access devices when it allows Defendant to seek authorization of such use. An "absolute prohibition" of computer and Internet use would, by definition, be one that does not allow for the possibility of computer and Internet use. Further, the special condition following the condition limiting computer and Internet use makes clear that the condition at issue is not a complete ban. As the Court points out, the next condition requires the defendant to:
allow the probation officer to install software/hardware designed to monitor computer activities on any computer you are authorized by the probation officer *1284 to use. The software may record any and all activity on the computer, including the capture of keystrokes, application information, Internet use history, email correspondence, and chat conversations. A notice will be placed on the computer at the time of installation to warn others of the existence of the monitoring software on the computer. You must not attempt to remove, tamper with, reverse engineer, or in any way circumvent the software/hardware.
R. Vol. I, 97. Such a detailed condition about what must occur once a probation officer authorizes computer use would hardly be necessary if the prior condition was a complete ban and shows, contrary to the Court's assertion, the district court certainly did not have the "intent to ... prevent Blair from using computers and the Internet for any reason for all seven years of his supervised release." 5 Ct. Op. at 1279.
Even more damaging to Defendant's case, in sharp contrast to the condition at issue in
Ullmann
, the instant condition does not impose any "prohibitions." Instead, the condition requires that "[t]he defendant's use of computers and Internet access devices must be
limited
to those the defendant requests to use, and which the probation officer authorizes."
The district court did not impose a condition that "absolutely prohibits the use of the Internet" but rather imposed a condition that limited (i.e., restricted) Defendant's use of computers and Internet access devices-the precise thing we held was permissible in
Ullmann
. That should be the end of this issue. But even if one ignores
Walser
and
Ullmann
and somehow reads the written condition as a complete prohibition, Defendant still cannot prevail on his challenge of the condition. That is because the district court orally clarified and guided the probation office to authorize Defendant's use "if deemed safe and appropriate given the particular circumstances presented by the defendant." R. Vol. VI, 245. Recall, an "oral pronouncement of sentence from the bench controls over written language."
Ullmann
,
Additionally, this Court may presume the probation office will enforce the special condition in a reasonable manner.
United States v. Vinson
,
III.
One further comment. The Court states "[n]othing about this case suggests that a complete ban on Blair's use of the Internet is necessary to achieve the goals of supervised release." Ct. Op. at 1280. " Nothing ?" Defendant has a history of sex-related crimes that spans decades, dating back to his childhood. Defendant's sister testified that, when Defendant was fifteen and she was ten, Defendant attempted to rape her. Their father intervened, luckily, before the attempt was successful. According to Defendant's son, this was not an isolated incident of sexual abuse and continued into years later when Defendant had children of his own. Defendant's son testified that Defendant started grooming him while he was in third grade and eventually engaged in oral sex ten to fifteen times with him over the next couple years. During these assaults in Defendant's bedroom, a computer screen "constantly displayed pornography." R. Vol. III, 82. The district court found the testimony of both Defendant's sister and son "to be very credible." R. Vol. VI, 240. Fast-forwarding to 2014, Defendant pled guilty to felony pimping based on his participation in a prostitution operation in which he transported women from airports to massage parlors for prostitution.
And, of course, the latest known incident is Defendant's instant conviction for possessing over
700,000
images of child pornography-so much child pornography that it had to be sorted into folders, which bore names such as "Hardcore Childporn-Pthc-Kinderporno" and "Pthc folders."
7
R. Vol. II, 7. On this same hard drive, Defendant also kept "hundreds of pages of text stories describing the abduction and/or the sexual abuse of children."
* * *
Narrowly construed (or not), the condition can easily be read as one that does not affect Defendant's liberty interest to an unacceptable degree. The condition at issue limits-rather than prohibits-Defendant's use of computers and Internet access devices in compliance with Ullmann , and the district court guided the probation officer to authorize such usage "if deemed safe and appropriate"-a more meaningful clarification than the one we held was permissible in Ullmann . Accordingly, the district court did not abuse its discretion in imposing the condition because it is not a greater deprivation of liberty than reasonably necessary to accomplish the purposes set forth in section 3553(a)(2)(B)-(D). I respectfully dissent.
The Court today remands for the district court to "amend" or "reformulate" the condition. Ct. Op. at 1280-81. It appears to me that, based on White , 9 Ullmann , and the Court's opinion, this amendment or reformulation can consist of an oral or written clarification that the condition the court imposed is only a "limitation" or "restriction" and not a "prohibition."
Although Blair signed a plea agreement with an appeal waiver, the government concedes that "this appeal falls outside the scope of the waiver" because Blair received a sentence based on an offense level higher than that anticipated by the agreement. Aple. Br. at 8 n.5.
Although a district court's oral statements may be relied on to clarify an ambiguous condition of release when those statements are clear, as they were in Ullmann , it is clearly preferable to have all terms and conditions set forth in the written conditions.
Blair also argues that the district court's special condition prevents him from using Internet-connected devices that have no Internet-browsing capability, like "credit-card readers, self-service check-in kiosks at the airport, and iRobot vacuum cleaners." Aplt. Br. at 14. That interpretation is not supported by either the plain language of the condition or the district court's oral pronouncements at sentencing, and therefore we reject it.
Furthermore, our court in
Vinson
concluded that the permission-first condition in that case was acceptable only if implemented to intrude minimally on Vinson's liberty, for example, through the use of website filtering software.
For example, the defendant in
United States v. Holena
,
No one has argued in this case nor did the district court find that extraordinary circumstances exist to justify such a blanket or total ban.
Along with Defendant's § 3583(d)(2) argument, Defendant argues the condition is not "reasonably related to deterring and protecting the public from defendant's crimes," presumably in violation of § 3583(d)(1). Op. Br. at 12. He states it is "unmoored from the conduct that it is ostensibly intended to prevent-
i.e.
, the download and possession of child pornography."
The Court seems to agree with this much. Ct. Op. at 1277 ("[W]e upheld the special condition in Ullmann because the modified version of that condition reasonably restricted but did not prohibit the defendant's use of the Internet.").
The Court seems to suggest the probation office's manual was a major factor in our reasoning in
Ullmann
.
Ullman
, however, barely mentioned the manual in its analysis. Instead,
Ullmann
made clear that the district court's oral pronouncement that the condition was not a prohibition was the
sole
reason the condition did not violate § 3583.
The Court and I agree that, as
Ullmann
plainly stated, a "blanket ban" on a defendant's computer and Internet use is impermissible, unless "extraordinary circumstances" justify the absolute prohibition.
Imputing such an extreme intent to the district court is also difficult-if not impossible-to do in light of the district court's statements that Defendant's "use" of the computers and the Internet need to be "closely monitored and supervised" and that "approval of the defendant's access to the internet should be addressed on a case-by-case basis with the defendant's probation office ...." R. Vol. VI, 244-45.
Limitation , Black's Law Dictionary (11th ed. 2019) (defining a "limitation" as a "restriction"); Restriction , Black's Law Dictionary (11th ed. 2019) (defining a "restriction" as a "limitation").
According to the PSR, "PTHC stands for 'Pre-Teen Hardcore.' In the world of child pornography collectors, this term indicates that the child pornography depicts a pre-pubescent minor engaged in sexual intercourse with one or more other adults or minors." R. Vol. II, 7.
I believe that the Court's statement is dictum because, as the Court elsewhere notes, the Government unfortunately failed to argue that "extraordinary circumstances" are present here that would justify a complete ban.
Planned Parenthood of Kan. v. Andersen
,
United States v. White
,
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff - Appellee v. Michael Lyle BLAIR, Defendant - Appellant.
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- 42 cases
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