PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-4744

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

BENJAMIN MCMILLER,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., District Judge. (3:17-cr-00269-RJC-DCK-1)

Argued: January 29, 2020 Decided: March 30, 2020

Before KEENAN, WYNN, and RUSHING, Circuit Judges.

Affirmed in part, vacated in part, and remanded by published opinion. Judge Keenan wrote the opinion, in which Judge Wynn and Judge Rushing joined.

ARGUED: Ann Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Anthony Joseph Enright, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON BRIEF: Anthony Martinez, Federal Public Defender, Caryn A. Strickland, Assistant Federal Public Defender, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. R. Andrew Murray, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. BARBARA MILANO KEENAN, Circuit Judge:

Benjamin McMiller was sentenced to 121 months’ imprisonment and a lifetime term

of supervised release for transporting and possessing child pornography. On appeal,

McMiller argues that the district court erred in two discrete ways at sentencing: (1) by

ordering McMiller to pay special assessments pursuant to the Justice for Victims of

Trafficking Act of 2015,

; and (2) by imposing, without explanation,

special conditions of supervised release banning McMiller for life from accessing the

Internet or operating a social networking account without the approval of his probation

officer.

Upon our review, we affirm the district court’s judgment with respect to the special

assessments. However, we agree with McMiller that the district court plainly erred under

our precedent by failing to explain the computer-related special conditions of supervised

release. We therefore vacate the conditions as procedurally unreasonable, and remand that

portion of McMiller’s sentence back to the district court.

I.

McMiller, an elementary school teacher, was apprehended by investigators after he

“shared” child pornography with another individual using a website called “Omegle.”

After tracing the source of the child pornography to McMiller’s address, investigators

conducted a consensual search of his residence. Although McMiller denied any knowledge

of child pornography and attempted to mislead the investigating officers in various ways,

the officers eventually found an external hard drive concealed within McMiller’s bedding,

2 unlocked it, and discovered 88 images and 54 videos of child pornography. Many of these

images and videos depicted “sadistic and masochistic activity involving prepubescent

children,” including “infants and toddlers.”

McMiller pleaded guilty without a plea agreement to one count of transportation of

child pornography and one count of possession of child pornography, in violation of 18

U.S.C. § 2252A(a)(1) and (a)(5)(B). At sentencing, McMiller initially faced a guideline

range of between 151 and 188 months. However, the district court varied downward two

offense levels to eliminate the enhancement for “use of a computer” set forth in USSG

§ 2G2.2(b)(6), explaining that the use of a computer was “something that is present in every

[child pornography] case.” In contrast to other common enhancements, the district court

determined that McMiller’s use of a computer did not “increase the seriousness of the

offense” he committed, or otherwise “tie into” any sentencing factor to make his case

“more significant than others.”

After the elimination of the computer enhancement, McMiller’s guideline range was

reduced to between 121 and 151 months. Emphasizing the seriousness of McMiller’s

conduct and his initial attempts to conceal the evidence of his crimes, the district court

sentenced McMiller to 121 months’ imprisonment on each count, to be served

concurrently. The court explained that a “sentence of 121 months” was necessary to

account for each of the sentencing factors set forth in

(a). Without

additional explanation, the court also imposed a lifetime term of supervised release, during

which McMiller would be subject to “the standard sex offender conditions of supervised

release that have been adopted by the Court in the Western District of North Carolina.”

3 These “standard sex offender conditions” consist of fifteen special conditions of

supervised release that the Western District of North Carolina has made presumptively

applicable to “any person convicted of a sex offense or child pornography offense, unless

affirmatively omitted by the presiding judge.” Misc. Order No. 3:16-MC-221 at 1

(W.D.N.C. Dec. 8, 2016). Among other restrictions, these conditions prohibit McMiller

from maintaining any social networking account and, more broadly, from possessing or

using any electronic device capable of accessing the Internet without the approval of his

probation officer. The district court did not separately articulate the Internet or social

networking restrictions to McMiller, or otherwise identify any of the specific conditions

contained in the standing order. McMiller did not object to the special conditions or ask

the district court to explain why they were being imposed. 1

Pursuant to the Justice for Victims of Trafficking Act of 2015, the district court also

ordered McMiller to pay two $5,000 special assessments.

(a). Based on

the presentence report (PSR), which included information about McMiller’s education and

future earnings potential, the court found that it was “feasible” for McMiller to pay the

assessments through a combination of immediate payments, contributions through the

Bureau of Prisons Inmate Financial Responsibility Program while incarcerated, and

monthly installments of $50 upon release. McMiller did not object to these rulings, or to

1 Through counsel, McMiller asked the district court to “to allow the probation officer to modify any special sex offender conditions where appropriate . . . [j]ust to give a little bit of flexibility as they are somewhat draconian.” In response, the court noted that the probation office already had that “inherent authority,” but agreed to “put that in the judgment.” The court did not include any notation of this sort in the judgment. 4 the financial report contained in the PSR, which recommended the approach that the court

adopted.

II.

McMiller advances two issues on appeal. First, McMiller argues that the district

court plainly erred when it determined, based on future earnings potential, that McMiller

could pay special assessments under

. Second, McMiller argues that the

court erred procedurally and substantively when it imposed, without explanation, special

“sex offender conditions” of supervised release severely restricting his access to the

Internet and social networking websites. We address each argument in turn.

A.

We begin with McMiller’s challenge to the special assessments that the district court

imposed pursuant to

. Because McMiller did not object to the special

assessments, we apply plain error review. United States v. Lynn,

(4th

Cir. 2010). To establish plain error, McMiller must show that an error occurred, that it was

plain, and that it affected his substantial rights. United States v. Lockhart,

(4th Cir. 2020) (en banc). Even then, we will exercise our discretion to correct the

error only if it “seriously affects the fairness, integrity or public reputation of judicial

proceedings.”

(citation omitted).

Section 3014 mandates $5,000 special assessments for all “non-indigent”

defendants convicted of certain offenses, including child pornography offenses.

(a), (a)(3). McMiller argues that the district court plainly erred by ordering the

5 assessments without making an explicit finding of “non-indigence” and, alternatively, by

finding that he was “non-indigent” based on his future earnings potential. We disagree.

The district court ordered McMiller to pay assessments under Section 3014 based

on the recommendation of the probation officer, who considered McMiller’s “financial

resources and assets, financial obligations, projected earnings, other income, age,

education, health, dependents, and work history.” Based on that information, particularly

McMiller’s job history and master’s degree, the probation officer concluded that McMiller

likely could find employment while on supervision and, thus, would be able to pay the

assessments. Relying on the recommendation contained in the PSR, the district court

determined that it would be “feasible” for McMiller to pay off the balance of the special

assessments in monthly installments of $50 once he was released from prison. “In light of

the special assessments,” the district court found that McMiller would not be able to pay

interest or additional fines.

The district court’s ruling reflects at least an implicit determination that McMiller

was “non-indigent,” and we conclude that this implicit finding was both adequate under

the circumstances and not plainly erroneous. McMiller made no objection to the financial

report in the PSR or to the imposition of the special assessments, and he affirmatively

emphasized his master’s degree and employment history in seeking a downward variance.

Under these circumstances, the district court did not plainly err in failing to make a more

6 explicit finding that McMiller was “non-indigent,” or in determining that it would be

“feasible” for McMiller to pay the assessments while on supervised release. 2

We also hold that the district court properly considered McMiller’s future earnings

potential in imposing the special assessments. The text of Section 3014 requires

assessments to be collected in the same manner as criminal fines,

(f), and

the obligation to pay such fines generally extends 20 years from a defendant’s release from

prison, see §§ 3014(g), 3613(b). Moreover, the Sentencing Guidelines plainly treat a

defendant’s future ability to pay as relevant to the imposition of fines. See

USSG § 5E1.2(a) (directing fines to be imposed unless “the defendant establishes that he

is unable to pay and is not likely to become able to pay any fine” (emphasis added)).

McMiller’s suggestion that the assessments can be ordered only if the defendant can pay

them on the day that the sentence is imposed is inconsistent with these directives.

For these reasons, we agree with our sister circuits that a district court may consider

a defendant’s future earnings potential when determining his ability to pay an assessment

under

(a). See United States v. Shepherd,

(6th Cir.

2019); United States v. Graves,

(5th Cir. 2018); United States v. Kelley,

2 We also reject McMiller’s argument that the court’s decision not to impose interest or fines contradicts its decision to impose the assessments. As the record makes clear, the district court declined to impose a fine expressly because of the burden already imposed by the special assessments. Thus, there is no inconsistency in the court’s analysis.

7

(8th Cir. 2017). Therefore, we hold that the district court did not err,

much less err plainly, in ordering McMiller to pay the special assessments. 3

B.

We next consider McMiller’s challenge to the “sex offender conditions of

supervision” imposed by the district court. McMiller seeks to vacate two of the fifteen

conditions, conditions 9 and 13, which prohibit McMiller from owning or using any

electronic device capable of accessing the Internet and from maintaining any social

networking account without prior approval from his probation officer. Because McMiller

did not object to these conditions at the time of his sentencing, we again apply plain error

review. 4 United States v. Price,

(4th Cir. 2015).

The government argues that both special conditions should be affirmed, because the

district court explained the sentence “as a whole” and because the challenged conditions

independently satisfy the requirements of

(d). We disagree, and conclude

that the district court committed procedural error in imposing special conditions 9 and 13.

3 In reaching this conclusion, we note that the district court expressly ordered the probation officer to “monitor the defendant’s economic circumstances” and “report . . . any material changes that affect his ability to pay.” Thus, if the court’s evaluation of McMiller’s future earnings potential proves inaccurate, the court will be well-positioned to adjust that evaluation. 4 McMiller argues that he preserved his objections to the conditions of supervised release by seeking a different length of supervised release term, and therefore that the abuse of discretion standard applies. In support, he cites United States v. Ross,

, 746 n.2 (4th Cir. 2019). Because we agree with McMiller that remand is necessary even under the more stringent standard of plain error review, we need not decide this issue. 8 District courts have a duty to explain the sentences they impose. Gall v. United

States,

(2007). “The appropriateness of brevity or length, conciseness or

detail, when to write, what to say, depends upon the circumstances.” United States v. Blue,

(4th Cir. 2017) (citation omitted). In all cases, however, the explanation

must at least be sufficient “to allow for meaningful appellate review and to promote the

perception of fair sentencing.” Gall,

. Failure to provide such an explanation

constitutes procedural error. United States v. Provance,

(4th Cir. 2019).

As we recently have made clear, a sentencing court’s duty to provide an explanation

for the sentence imposed also requires that the court explain any special conditions of

supervised release. See United States v. Arbaugh,

(4th Cir. 2020) (“Just

as with other parts of a sentence, the district court must adequately explain any special

conditions of supervised release.”); United States v. Ross,

(4th Cir.

2019) (“The requirement that the district court adequately explain Ross’s term of

confinement similarly applies to the special conditions of his supervised release.”). This

duty arises from

(d), which requires that special conditions of supervised

release be: (1) “reasonably related” to the statutory goals of deterrence, protection of the

public, and rehabilitation; (2) “no greater [a] deprivation of liberty than is reasonably

necessary” to achieve those statutory goals; and (3) consistent with any relevant policy

statements issued by the Sentencing Commission. Unless a district court explains why

particular special conditions are being imposed, “we have no basis for determining whether

they are reasonably related to the[se] factors.” Arbaugh,

(quoting United

States v. Armel,

(4th Cir. 2009)).

9 The district court did not adhere to these precedents in imposing the special

conditions of supervised release at issue here. Although the court thoughtfully detailed

why it viewed a sentence of 121 months’ imprisonment as appropriate in light of the

various sentencing factors, the court offered no explanation at all for imposing the special

conditions of supervised release. Instead, in summarily ordering McMiller to comply with

the “standard sex offender conditions of supervised release that have been adopted by the

Court in the Western District of North Carolina,” the court appeared to rely on a standing

order imposing such conditions in all cases involving sex offenses within that district.

Moreover, contrary to the government’s suggestion, we cannot glean the district

court’s reasons for imposing the challenged conditions by examining the rationale for the

sentence “as a whole.” The court referred only to a “sentence of 121 months” when

discussing the sentencing factors of Section 3553(a), and made no attempt to link its

explanation for McMiller’s term of confinement with the term or conditions of supervised

release.

Under our precedent, the district court’s failure to give an explanation for the special

conditions of supervised release is reversible plain error. Arbaugh,

; Ross,

. After imposing a lifetime term of supervised release, the district court

had a duty to explain to McMiller “why he faces special conditions that will forever modify

the course of his life.” Ross,

. And, importantly, this duty cannot be

satisfied or circumvented through the adoption of a standing order purporting to impose

special conditions of supervised release across broad categories of cases or defendants. See

United States v. Caravayo,

(5th Cir. 2015) (“[S]pecial conditions must

10 be tailored to the individual defendant and may not be based on boilerplate conditions

imposed as a matter of course in a particular district.”); United States v. Kelly,

(8th Cir. 2010) (“Courts may not impose special conditions categorically on all

individuals convicted of certain offenses.”).

We acknowledge that there may be instances when a special condition is so

unobtrusive, or the reason for it so self-evident and unassailable, that remand will be

unnecessary. See United States v. Olano,

(1993) (instructing courts not

to correct a forfeited error unless the error “seriously affect[s] the fairness, integrity or

public reputation of judicial proceedings.” (citation omitted)). Additionally, as with other

aspects of sentencing, the amount of explanation required to permit meaningful appellate

review of supervised release conditions undoubtedly will vary with the nature of the

condition imposed and the circumstances of each case. Blue,

.

This case, however, does not present difficult line-drawing concerns. The Internet

and social networking conditions that McMiller challenges are exacting, were imposed for

the rest of McMiller’s life, and were left wholly unexplained. McMiller’s case is therefore

indistinguishable in all relevant respects from our recent decisions in Arbaugh and Ross,

which involved conditions similar to and less onerous than those challenged by McMiller.

See Arbaugh,

n.3; Ross,

. In each case, applying plain error

review, we vacated the special conditions, holding that the district court erred procedurally

11 by failing to adequately explain them. See Arbaugh,

; Ross,

. We do not discern any basis for reaching a different outcome here. 5

In accord with our decisions in Arbaugh and Ross, we hold that McMiller’s

challenge to two of the special conditions of his supervised release satisfies the

requirements of plain error review. Olano,

. A defendant’s right to

know “why he faces special conditions that will forever modify the course of his life” is

substantial. Ross,

. Consequently, when a court’s explanation for such

special conditions is so lacking that it deprives the defendant of meaningful appellate

review, that error necessarily affects the defendant’s substantial rights. Id.; see also

Arbaugh,

(“[W]e are not permitted to substitute our assessment of the

record for the district court’s obligation to explain its rationale in the first instance.”).

Finally, because an adequate explanation is also necessary “to promote the perception of

fair sentencing,” Gall,

, we conclude that the absence of such an explanation

“seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.”

Olano,

(citation omitted).

For these reasons, we conclude that McMiller has met his burden under plain error

review. Accordingly, we vacate special conditions 9 and 13 as procedurally unreasonable

5 The fact that our decisions in Arbaugh and Ross were published after McMiller’s sentencing does not alter our analysis. For purposes of plain error review, “it is enough that an error be ‘plain’ at the time of appellate consideration.” Henderson v. United States,

(2013) (citation omitted).

12 and remand to the district court for further explanation. 6 We affirm the balance of

McMiller’s sentence.

III.

In sum, we affirm the district court’s judgment in part, reverse in part, and remand

the case to the district court for resentencing with respect to special conditions 9 and 13 of

supervised release.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

6 Because we conclude that the imposition of the challenged special conditions was procedurally unreasonable, we do not reach the issue of their substantive reasonableness. United States v. Carter,

(4th Cir. 2009) (“If, and only if, we find the sentence procedurally reasonable can we consider the substantive reasonableness of the sentence imposed[.]”) (citation and internal quotation marks omitted). 13