PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-4159

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

ROBERT DALE ELLIS,

Defendant – Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Martin K. Reidinger, Chief District Judge. (1:15-cr-00016-MR-WCM-1)

Argued: October 30, 2020 Decided: January 8, 2021

Before GREGORY, Chief Judge, FLOYD, and QUATTLEBAUM, Circuit Judges.

Reversed and vacated and remanded with instructions by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Floyd and Judge Quattlebaum joined. Judge Quattlebaum wrote a concurring opinion.

ARGUED: Melissa Susanne Baldwin, 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, 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. GREGORY, Chief Judge:

Robert Ellis has been in and out of federal prison since 2013. Mr. Ellis initially

served fifteen months in prison for failing to register as a sex offender. Afterwards, he

struggled to comply with the conditions of his supervised release. As a result of his

violations, Mr. Ellis served additional prison terms of ten months, nine months, and eleven

months. In the intervening periods, Mr. Ellis struggled with homelessness and mental

health challenges.

Mr. Ellis’s underlying sex offense convictions related to the possession of child

pornography. He also admitted to watching adult pornography on the internet. On that

basis, the government argued for special conditions of release banning Mr. Ellis from

possessing pornography or accessing the internet. The district court ultimately imposed

those conditions. We find, on this record, the conditions banning legal pornography and

internet access cannot be sustained as “reasonably related” under

(d)(1)

and are overbroad under

(d)(2). We reverse.

I.

In 2013, Mr. Ellis pled guilty to a single federal charge of failing to register as a sex

offender. Federal law required Mr. Ellis to register based on child pornography convictions

under North Carolina law from 2005 and 2006. The district court sentenced Mr. Ellis to

fifteen months of imprisonment and a five-year term of supervised release with the standard

sex offense conditions. He was released from prison in June 2014. Before long, Mr. Ellis

began to run into difficulties complying with the conditions of his release.

2 First, in March 2015, Mr. Ellis’s probation officer petitioned for two months of

home detention, granted by the district court, because Mr. Ellis travelled outside the district

without permission. Then, before that term could be completed, the probation officer

petitioned to terminate home detention because Mr. Ellis had become homeless. He was

granted permission to live with a friend for several months.

In August 2015, Mr. Ellis began residing at a reentry center, which was intended to

assist with housing and employment opportunities. But, according to the probation officer,

upon arrival Mr. Ellis “was not willing to comply with the rules and directives of the

[center] and was discharged.” J.A. 40. So-called “second chance funds” were obtained to

provide Mr. Ellis with emergency housing in a hotel. He moved from hotel to hotel through

November, exhausting the funds available to him. At that point, Mr. Ellis was admitted to

a hospital for a mental health evaluation.

Upon his release in December 2015, Mr. Ellis began residing at the reentry center

again and initially participated in outpatient mental health treatment. After a few weeks,

however, Mr. Ellis called a crisis hotline and stated that he was thinking of harming

himself. This resulted in overnight observation at an in-patient facility. The next day, the

director of the reentry center discharged Mr. Ellis because the facility “was inadequate to

meet [his] mental health needs.” J.A. 43. Mr. Ellis was evaluated for treatment at a mental

health residential center but was not admitted beyond the day. It is unclear where Mr. Ellis

resided for the next several months. The final petition to modify his release stated only

that he did “not have a stable residence” and that GPS location monitoring was necessary

“to ensure his whereabouts [were] known” to the probation officer.

3 In August 2016, the probation officer filed a petition for revocation of supervised

release, alleging ten violations. The violations were largely based on the conduct that gave

rise to previous modification petitions, including Mr. Ellis’s unauthorized travel and lack

of cooperation with his treatment programs. Based on an agreement with the government,

Mr. Ellis admitted six of the violations and the remaining four were dismissed. 1 The

district court granted the petition and sentenced Mr. Ellis to ten months of imprisonment

followed by a new five-year term of supervised release.

Mr. Ellis served the new prison sentence and then attempted to comply with the

conditions of his release, including his mental health and sex offender treatment. But in

April 2018, his probation officer again moved for revocation of supervised release, alleging

three violations. Mr. Ellis reached another agreement with the government, admitting to

two violations while the third charge was dismissed. 2 This time, the violations flowed from

a polygraph exam during Mr. Ellis’s sex offender treatment evaluation. Mr. Ellis initially

lied when asked about his pornography use and then admitted to the lie after the exam. The

1 The violations Mr. Ellis admitted were: unauthorized travel from the Western District of North Carolina to the Middle District; failure to report contact with a police officer after being pulled over on the highway; failure to comply with the reentry center’s rules; failure to report to the probation officer as scheduled in October 2015; unauthorized travel when “soliciting for money” outside the Western District; failure to comply with mental health treatment by missing six appointments during 2016; and failure to participate in sex offender treatment after missing the intake appointment. 2 Specifically, the admitted violations were: failure to comply with sex offender risk assessment testing by failing a polygraph exam and then admitting to lying about “daily pornography use and using devices that access the internet that are not approved”; and unauthorized computer access based on the admission from the polygraph exam. 4 district court granted the petition and sentenced Mr. Ellis to nine months of imprisonment

and another new term of five years of supervised release.

The district court also considered several special conditions of release requested by

Mr. Ellis’s probation officer and argued for by the government. Two of the special

conditions, relevant here, were “[t]hat he have no Internet access” and “that he shall not

possess any legal or illegal pornographic material, nor shall he enter any location where

such materials can be accessed, obtained, or viewed, including pictures, photographs,

books, writings, drawings, videos, or video games.” J.A. 77. The government argued that

the pornography restriction “would be what some would call witting ‘mere occasions of

sin,’” and that Mr. Ellis “should not do anything where he could be put in the position to

be tempted to violate the conditions of his release.” J.A. 77–78. Similarly, regarding the

internet ban, the government argued that “[i]t is extremely easy, even if you’re just

Googling or checking baseball scores, if you have a predilection for that . . . it’s very easy

to, then, lapse into improper things. So, again, I think that would be important to keep him

from relapsing.”

Mr. Ellis’s attorney, who learned of the special conditions request during the

proceeding, challenged the conditions as overbroad. The pornography restriction “would

prohibit him from going into libraries, bookstores, and convenience stores.” J.A. 78–79.

And the internet ban would create unnecessary difficulty “in accessing information as well

as accessing potential job opportunities.” J.A. 79. Mr. Ellis also spoke of his concerns

regarding the internet ban, stating, “I have money issues right now. . . . I have to have the

ability to get a way to check my e-mails” and to use a ride-share application to search for

5 employment. J.A. 82–83. The district court ultimately imposed the pornography ban,

without the locational component, but not the internet ban.

Once again, Mr. Ellis served the new term of incarceration and then began serving

the new term of supervised release. And, once again, his probation officer petitioned to

revoke release several months later. The petition charged seven violations, including a

failure to comply with GPS monitoring and required treatment programs and dishonesty

with the probation officer. Mr. Ellis reached another agreement with the government,

admitting five of the charges in exchange for dismissal of the remainder. 3 The district court

sentenced Mr. Ellis to eleven months of imprisonment followed by yet another five-year

term of supervised release.

The government requested the same special conditions banning internet and

pornography access. Mr. Ellis objected to both conditions. He argued that an internet ban

would make it “virtually impossible” to reenter society and that no evidence was presented

by the government linking the internet or pornography to the violative conduct. J.A. 116–

18. The government responded that the restrictions were appropriate “just based on the

underlying charges and . . . the violations.” J.A. 118.

3 Specifically, the violations Mr. Ellis admitted were: failure to comply with location monitoring by allowing the battery on his GPS device to run out on several occasions; failure to provide truthful answers when discussing why the GPS device battery ran out; leaving the district without permission when Mr. Ellis travelled to South Carolina for one day; failure to comply with sex offender treatment by telling his therapist during intake that he “would never disclose historical and/or personal information”; and failure to comply with mental health treatment by declining to attend the twice-monthly sessions, instead agreeing only to attend once per month. 6 This time, the court overruled Mr. Ellis’s objections entirely. It found the conditions

were justified to compel Mr. Ellis into complying with his treatment. “If the defendant

were responding to treatment . . . I would agree that those requirements . . . are not

narrowly tailored,” the court explained, but “[w]ithout those limitations, the probation

officer is essentially left in the dark about how to redirect the defendant.” J.A. 118–19.

Thus, the court found that the conditions “go to the overt resistance” Mr. Ellis exhibited.

Accordingly, the court concluded that Mr. Ellis “shall [] have no Internet access” and

“shall not possess any legal or illegal pornographic materials, nor shall [he] enter any

location where such materials can be accessed, obtained, or viewed, including pictures,

photographs, books, writings, drawings, videos, or video games.” J.A. 113, 126.

Mr. Ellis filed a timely appeal, challenging the special conditions.

II.

We review the imposition of special conditions of supervised release for abuse of

discretion. United States v. Van Donk,

(4th Cir. 2020). The district

court abuses its discretion “by definition” when it makes an error of law.

(quoting In

re Grand Jury Subpoena,

(4th Cir. 2017)).

A sentencing court must craft conditions of supervised release that comply with the

requirements listed in

(d).

. Section 3583(d) requires that

special conditions of supervised release be: (1) “reasonably related” to the nature and

circumstances of the offense, the history and characteristics of the defendant, and the

statutory goals of deterrence, protection of the public, and rehabilitation; (2) “no greater

7 [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. See

(d); United States v. McMiller,

(4th

Cir. 2020). Imposing special conditions that fail to comply with § 3583(d) is an abuse of

discretion and grounds for vacating the conditions. See, e.g., United States v. Worley,

, 407–09 & n.1 (4th Cir. 2012).

Mr. Ellis argues that the pornography and internet bans violate § 3583(d). He

contends that the restrictions are insufficiently related to his conduct, history, and

rehabilitation and are more restrictive than is reasonably necessary. 4 The government

responds that both restrictions are sufficiently tailored and related to the offense and

sentencing factors.

A.

We recently addressed the rules for restricting access to pornography during

supervised release in Van Donk. 961 F.3d at 322–23. On the one hand, courts have “upheld

bans on adult pornography where a treatment provider testified that sexually stimulating

images could cause the defendant to revert to accessing child pornography.” Id. at 322.

On the other hand, courts have “struck down such conditions when they were

4 In his opening brief, Mr. Ellis also argued that the term “pornography” was insufficiently defined, such that the pornography restriction should be found void for vagueness. The government responded that this Court should regard the term “pornography” as cabined by the definition used in the federal criminal code at

to define “child pornography.” In his Reply, Mr. Ellis agreed that this “narrowing construction . . . avoids constitutional vagueness concerns, so the Court need not reach the vagueness issue raised in the Opening Brief.” Accordingly, Mr. Ellis waived the vagueness challenge and we do not reach the issue. 8 unaccompanied by individualized explanations for their broad sweep.”

; see, e.g.,

(citing a finding that pornography bans are unsupported where “there is little indication

that access to such material will impede a defendant’s rehabilitation or put the community

at risk”) (quoting United States v. Eaglin,

, 99–101 (2d Cir. 2019)). We noted,

for example, that this Court had recently vacated a pornography restriction “because the

district court’s only explanation for it was that it’s ‘a standard condition for sex offenders’

and ‘necessary and appropriate under the circumstances.’”

(quoting United States v.

Wroblewski,

, 162–63 (4th Cir. 2019) (per curiam)). Thus, Van Donk

adopted a straightforward rule: “Restrictions on otherwise legal pornography are

permissible under § 3583(d) where the district court adequately explains why they are

appropriate, and the record supports such a finding.” Id. at 322.

Applying that rule, Van Donk upheld the pornography restriction at issue. Id. at

323. The district court relied on testimony from a treatment provider explaining the ban’s

individualized connection to the defendant’s treatment and recidivation risk. Id. Based on

“her nearly thirty years of experience as a sex-offender treatment provider and her

extensive dealings with [the defendant],” the treatment provider explained that “her

pornography ban [was] meant to keep [the defendant] from recidivating and to treat his

pornography addiction.” Id. Therefore, the district court made a reasonable finding,

supported by the evidence, that the “restriction on sexually stimulating material was

necessary to treat [the defendant’s] addiction and to deter him from future crimes.” Id.

And, the district court adequately “explained its finding at length in a written order and at

multiple hearings.” Id.

9 Here, by contrast, the pornography restriction was inadequately supported and

explained. The district court found that the ban was justified because Mr. Ellis had resisted

his treatment programs and lied about viewing legal pornography. But the district court

heard no evidence about how that pornography use may or may not influence Mr. Ellis’s

behavior. The government put forward no individualized evidence linking pornography to

Mr. Ellis’s criminal conduct or rehabilitation and recidivation risk. 5 There was no

testimony from a witness responsible for Mr. Ellis’s treatment, as in Van Donk. 6 The

government only presented that the pornography ban was necessary to avoid “occasions of

sin,” such that Mr. Ellis would not “be put in the position to be tempted to violate the

conditions of his release.” While this reasoning may seem intuitive or commonsense to

5 To dispute this point, the government repeatedly refers to certain allegations from the petitions to revoke supervised release. These allegations appeared exclusively within charges that were dropped pursuant to Mr. Ellis’s agreements with the government, or else in summaries of the probation officer’s allegations in support of those charges. Mr. Ellis stated on the record that he disputed the truth of the allegations the government proffers here. Such allegations cannot be considered as evidence on appeal. See, e.g., United States v. Foley,

(5th Cir. 2020) (holding that “a district court errs when it relies on a bare allegation of a new law violation contained in a revocation petition unless the allegation is supported by evidence adduced at the revocation hearing or contains other indicia of reliability”). 6 The government responds that Mr. Ellis “cannot seriously rely on the lack of a treatment-provider’s recommendation when he has repeatedly refused to participate in treatment.” This response shirks the government’s own evidentiary burden on the special condition it argued for. While Mr. Ellis never consistently complied with sex offender treatment, he did frequently attend his separate mental health treatment—albeit, skipping several sessions. The government did not call that distinct treatment provider. Nor did the government call a witness at least familiar with the facts of the case and possessing expertise in sex offender treatment and recidivation. There were any number of ways the government could have put forward individualized evidence as required, and Mr. Ellis’s noncompliance does not excuse that obligation. 10 some, it must be supported by individualized evidence to meet § 3583(d)’s reasonably

related standard. See id. at 322–23. Otherwise, this explanation could justify imposing a

pornography ban on every sex offender categorically, which Van Donk prohibits. See id.

The government’s primary response on appeal is that the district court adequately

justified the pornography restriction as an incentive for Mr. Ellis’s compliance with

treatment. But a court cannot impose a special condition of supervised release on that

basis; rather, doing so amounts to an abuse of discretion. See United States v. Crandon,

(3d Cir. 1999) (explaining that conditions that restrict fundamental rights

are permissible when “directly related to deterring [the defendant] and protecting the

public”) 7 (emphasis added); cf. Van Donk, 361 F.3d at 322 (“Treatment providers shouldn’t

be able to compel patients to do things wholly unrelated to the purposes of supervised

release—e.g., learn to ride a unicycle—under threat of the court revoking the patient’s

release.”). Nothing in § 3583(d), or elsewhere, authorizes a district court to use a condition

of release as a “stick” to encourage desired behavior by a defendant. See Van Donk, 351

F.3d at 322 (“The district court’s authority to impose special conditions comes from

§ 3583(d), so it would be wrong for the court to enforce a rule that ventures beyond the

statute’s requirements.”). Such a rationale essentially amounts to punishment imposed in

the hope that a change in the defendant’s behavior will follow. Punishment is not an

7 In unpublished cases, this Court, too, has repeatedly applied this language from Crandon, requiring that conditions be “directly related” to the § 3583(d) factors. See, e.g., United States v. Neeley,

(4th Cir. 2011) (per curiam); United States v. Crain,

, 331–32 (4th Cir. 2009) (per curiam); United States v. Wilinski,

(4th Cir. 2006) (per curiam); United States v. Henson,

(4th Cir. 2001) (per curiam). 11 acceptable basis for release conditions. See

(d)(1) (omitting punishment

as one of the sentencing factors upon which conditions of release may be justified).

Here, Mr. Ellis violated his release by travelling outside the judicial district without

permission, skipping therapy appointments, and lying to his probation officer, among other

similar violative conduct. Pornography use was not the basis of any violation. Mr. Ellis

did lie about watching pornography during a polygraph exam at the outset of his sex

offender treatment. But there the violative conduct was dishonesty, not pornography

consumption. And the government did not otherwise establish that pornography use was,

in fact, a barrier to Mr. Ellis’s rehabilitation. Thus—however obvious the government

believes the connection to be—the district court’s restriction of that activity solely to

incentivize compliance with other release conditions was as arbitrary as restricting a

defendant’s television-viewing or video game-playing for the same reason. Cf. United

States v. Taylor,

(7th Cir. 2015) (“It is true that [the defendant’s] crime

and adult pornography have to do with sexual activity. But there is no evidence that . . .

adult pornography in any way led [the defendant] to commit the crime here, or . . . would

make the repeat of [his] crime . . . more likely.”).

Finally, the pornography restriction impermissibly restricts more liberty than is

reasonably necessary. See

(d)(2). As we acknowledged in Van Donk,

pornography restrictions necessarily “encompass[] various materials that enjoy First

Amendment protection.”

; see also United States v. Shannon,

(7th Cir. 2014) (“Adult pornography, unlike child pornography, enjoys First

Amendment protection, and so we must be especially cautious when considering a ban on

12 possessing adult pornography.”). But in that case, we held that the restriction of some

protected materials, alone, did not render the pornography restriction at issue overbroad.

Van Donk, 961 F.3d at 326–27.

Here, however, the restrictiveness of the condition goes beyond the extent of the

materials covered. The district court also imposed a locational restriction, forbidding Mr. Ellis

from “enter[ing] any location where such [pornographic] materials”—including “pictures,

photographs, books, writings, drawings, videos, or video games”—could “be accessed,

obtained, or viewed.” Under the parties’ stipulated construction of “pornography,” the

term covers any “visual depiction involv[ing] . . . a [person] engaging in sexually explicit

conduct,” which includes “actual or simulated sexual intercourse,” “masturbation,” or

“exhibition of the anus, genitals, or pubic area.” See

(2)(A), (8).

Restricting Mr. Ellis from being physically present in any location where such materials

could be accessed amounts to a dramatic restriction of liberty.

From its plain text, the restriction covers many bookstores, gas stations, museums,

and art galleries. See United States v. Gnirke,

(9th Cir. 2015) (“[M]ost

places selling or renting DVDs—including local libraries—will stock materials containing

depictions of adult sexual acts or lascivious displays of nudity.”). While the possession

component restricts Mr. Ellis from viewing many movies and shows, as in Van Donk, the

locational component restricts Mr. Ellis from even entering the movie theater. See

at

1164–65 (“This part of [the defendant’s] condition vastly expands its scope. . . . [The

defendant] is also severely restricted in where he may shop, acquire information, and view

art or entertainment.”). Indeed, the prohibition could be read to cover any location that

13 allows access to a device that can browse the web, extending its reach to universities and

schools, hotels and electronics stores, and presumably the homes of Ellis’s friends and

family. See United States v. Adkins,

(7th Cir. 2014) (“Read literally,

this provision might preclude [the defendant] from using a computer or entering a

library . . . because both are ‘locations’ where [pornography] is available.”). Such a severe

deprivation of freedom is unnecessary to prevent any purported temptation towards

viewing child pornography or to otherwise further rehabilitation.

The government does not dispute that the condition has this effect. Rather, it argues

the narrowing construction of the term “pornography” is a sufficient constraint and that the

restriction is otherwise justified: “Although the condition would prohibit Ellis from

entering a location where ‘books’ or ‘writings’ are found that contain pornographic visual

depictions, the limitation to ‘pornographic material’ ensures that it does not extend broadly

to all written literature.” But the locational component ensures that this distinction makes

little difference. While Mr. Ellis is not banned from possessing the entire literary canon,

the government overlooks that he cannot enter the libraries and bookstores where such

materials are available alongside, say, certain R-Rated DVDs. See Gnirke, 775 F.3d at

1164–65; Adkins,

. Surely the district court could have tailored a restraint

that more specifically targets the places where, and methods by which, “pornographic

materials” can be accessed. Therefore, even by the government’s understanding, the

locational restriction deprives Mr. Ellis of more liberty than is reasonably necessary to

prevent him from accessing the materials that are intended to be restricted.

14 Ultimately, on this record, the district court’s ban on legal pornography cannot be

sustained as “reasonably related” under § 3583(d)(1) and is overbroad under § 3583(d)(2).

We strike the condition.

B.

The parties raise many of the same arguments regarding the condition prohibiting

Mr. Ellis from accessing the internet. Mr. Ellis argues that there is no evidence linking the

offense of conviction, his past crimes, or his rehabilitation to internet use. And, he contends

that a total ban on internet access deprives him of more liberty than is reasonably necessary,

given the vital importance of the internet to everyday life. The government provides the

same arguments as those made regarding the pornography restriction; an internet ban meets

§ 3583(d)’s requirements because Mr. Ellis was convicted of a child pornography offense,

admitted to legal pornography use, and failed to cooperate with sex offender treatment.

We first conclude that an outright ban on Mr. Ellis’s internet access cannot be

sustained under § 3583(d)(1)’s “reasonably related” requirement absent some evidence

linking his offense or criminal history to unlawful use of the internet. 8 At least four other

circuits have reached this same conclusion. See Eaglin, 913 F.3d at 95–99; United States

8 We do not mean to imply that, conversely, any evidence of illegal internet activity always satisfies § 3583(d)(1)’s requirement. See, e.g., United States v. Wiedower,

, 494–96 (8th Cir. 2011) (accepting the defendant’s argument that an internet ban was not “reasonably related to the sentencing factors” in a case where the defendant “frequently us[ed] his computer to receive illicit images for years”); cf. United States v. Peterson,

(2d Cir. 2001) (“Although a defendant might use the telephone to commit fraud, this would not justify a condition of probation that includes an absolute bar on the use of telephones.”). However, because this is a case with no evidence of online criminality at all, we have no occasion to consider what kind of showing may be sufficient. 15 v. Ramos,

, 61–62 (1st Cir. 2014); United States v. Baker,

, 525–

26 (7th Cir. 2014); United States v. Burroughs,

, 242–43 (D.C. Cir. 2010). 9

In this case, there is no evidence connecting the internet to any criminal conduct.

Mr. Ellis’s only federal offense—failing to register as a sex offender—did not involve the

internet. Mr. Ellis’s violations of his supervised release—travelling without permission,

dishonesty with the probation officer, failing to cooperate with treatment—did not involve

the internet. Therefore, there was no evidentiary basis for the district court’s finding that

an outright ban on Mr. Ellis’s internet access was “reasonably related” under § 3583(d)(1).

See United States v. Perazza-Mercado,

(1st Cir. 2009) (“The reluctance of

many of our sister circuits to uphold a ban on internet use unless the internet was integral

to the offense of conviction and/or the defendant’s history of misconduct reflects an

awareness that supervised release is supposed to advance the rehabilitation of the

defendant.”); see also Burroughs,

(“If Internet restrictions were appropriate

9 These cases found an internet ban was not “reasonably related” under § 3583(d) because there was no evidence of illegal internet use. See Eaglin,

(finding, despite defendant’s prior statutory-rape conviction, that a ban was not “reasonably related” because “the Internet has nothing to do with [the defendant’s] offense of failing to register as a sex offender,” and the defendant had never “been charged with or convicted of a sex crime involving Internet use”); Ramos,

(“[C]ases in other circuits are in general accord: where a defendant’s offense did not involve the use of the internet . . ., and he did not have a history of impermissible internet . . . use, courts have vacated broad internet . . . bans[.]”); Baker, 755 F.3d at 525–26 (finding a ban not “reasonably related” to failure-to-register conviction and criminal history because “[n]othing about [his] use of his computer or the internet was illegal”); Burroughs,

(finding a ban not “reasonably related” to the defendant’s conviction for prostituting a minor because “restrictions on computer or internet access are not categorically appropriate in cases where the defendant did not use them to facilitate his crime”). 16 for every defendant convicted of a sex offense against a minor, we think the Sentencing

Guidelines would say so.”).

To rebut this conclusion, the government points to Mr. Ellis’s prior child

pornography convictions. But there is no evidence in the record linking the internet to the

criminal conduct underlying those convictions. In 2005 and 2006, Mr. Ellis was convicted

of second-degree and third-degree sexual exploitation of a minor under North Carolina law.

Those offenses penalized the possession of child pornography,

.17A(a) (2006), and its duplication or distribution where the defendant did not

directly facilitate the involvement of the child victim depicted,

(a) (2006); State v. Fletcher,

(N.C. 2017).

Presumably, those crimes often involve the internet, but could just as well be carried

out on a computer without using the internet, via text message on a cell phone, or with a

Xerox machine—not to mention the analog possibilities. Therefore, even though Mr. Ellis

was convicted of crimes that are often carried out online, those convictions alone do not

justify an internet ban under § 3583(d) absent some evidence of Mr. Ellis’s own illegal

internet activity. See Burroughs,

(“That an offense is sometimes

committed with the help of a computer does not mean that the district court can restrict the

Internet access of anyone convicted of that offense.”); United States v. Peterson,

, 82–83 (2d Cir. 2001) (holding, where “[t]here is no indication that [the defendant’s]

past incest offense had any connection to computers or to the Internet,” that an internet ban

was “neither reasonably related to that conviction nor . . . to the sentencing objectives”).

17 The government’s remaining arguments fail for the same reasons discussed above

as to the pornography restriction. Mr. Ellis did violate his supervised release by initially

lying about watching pornography online on an unauthorized device. But the violative

conduct was Mr. Ellis’s dishonesty, not his internet use. Indeed, the conduct Mr. Ellis

admitted to was not illegal. See, e.g., Ramos,

(finding that the government’s

effort to “fill the void of justification” for an internet ban by “not[ing] that [the defendant]

admitted to looking at adult pornography” still “ignore[s] the absence of evidence of [the

defendant] using a computer or the internet . . . for illegal purposes”). The government did

not establish that legal pornography is an obstacle to Mr. Ellis’s rehabilitation or poses a

risk of recidivism, let alone that banning access to the internet entirely was necessary to

prevent its consumption. And incentivizing cooperation with treatment is an unacceptable

basis for the restriction absent some direct relation to the § 3583(d)(1) factors. While

evidence could theoretically be put forward to support an internet restriction as “reasonably

related” to sex offender treatment, such evidence is not in the record in this case. See

Eaglin,

(“In only highly unusual circumstances will a total Internet ban

imposed as a condition of supervised release be substantively reasonable[.]”).

Furthermore, the internet restriction is overbroad. The “reasonably necessary”

requirement of § 3583(d)(2) “in effect require[s] the court to choose the least restrictive

alternative” to achieve the statutory purposes. See United States v. Malenya,

(D.C. Cir. 2013) (“Section 3583(d)(2) is thus . . . a ‘narrow tailoring requirement.’”)

(quoting United States v. Holm,

(7th Cir. 2003)). A complete ban on

internet access is a particularly broad restriction that imposes a massive deprivation of

18 liberty. Cf. Packingham v. North Carolina, --- U.S. ---,

, 1737–38 (2017)

(finding a First Amendment interest in access to social media websites—only a subset of

the internet’s offerings—as “the principal sources for knowing current events, checking

ads for employment, speaking and listening in the modern public square, and otherwise

exploring the vast realms of human thought and knowledge”); United States v. LaCoste,

(9th Cir. 2016) (explaining that the internet is “vital for a wide range

of routine activities in today’s world,” including “finding and applying for work, obtaining

government services, engaging in commerce, communicating with friends and family, and

gathering information on just about anything, to take but a few examples,” such that

“[c]utting off all access to the Internet constrains a defendant’s freedom in ways that make

it difficult to participate fully in society and the economy”); see also United States v.

Voelker,

(3d Cir. 2007) (“The ubiquitous presence of the internet and

the all-encompassing nature of the information it contains are too obvious to require

extensive citation or discussion.”).

Given the breadth of such a condition, and the vast liberty it deprives, it will rarely

be the “least restrictive alternative.” See United States v. Holm,

(7th

Cir. 2003) (finding other restrictions available that “might provide a middle ground

between the need to ensure that [the defendant] never again uses the Worldwide Web for

illegal purposes and the need to allow him to function in the modern world”). For

example—if supported by the evidence—a sentencing court could restrict a defendant from

using the internet to access “chat rooms, peer-to-peer file-sharing services, and any site

where [they] could interact with a child.” United States v. Holena, 906, F.3d 288, 293 (3d

19 Cir. 2018). Similarly, if justified, a court could bar a defendant from accessing websites

with pornographic content, enforcing the rule with monitoring software and computer

inspections. See, e.g., Holm,

(finding that the district court could “fashion

precise restrictions that protect the child-victims used in Internet pornography and at the

same time reflect the realities of [the defendant’s] rehabilitation prospects” given that the

court “already imposed . . . random searches of his computer and residence” and “a variety

of filtering software is now available” that “is becoming ever more effective”); United

States v. Sofsky,

, 126–27 (2d Cir. 2002) (“[A] more focused restriction,

limited to pornography sites and images, can be enforced by unannounced . . .

examinations of material stored on [the defendant’s] hard drive or removable disks.”).

For these reasons, the majority of circuits have held that a complete ban on internet

access is overbroad even where the record contains evidence of non-contact child

pornography activity, or similar conduct, on the internet. See Holm,

(collecting cases). 10 Here, the record included only the prior child pornography convictions

10 See also Holena, 906 F.3d at 290, 295 (holding, where defendant “was convicted of using the Internet to try to entice a child into having sex,” that “the ban[] fails” because of its broad sweep of legal websites); United States v. Hinkel,

, 115–16, 126 (1st Cir. 2016) (holding, in case based on inducement of a minor into sexual activity via the internet, that an internet ban “provides too little benefit to outweigh what we increasingly view as a serious and severe imposition”); Wiedower,

(“Here, the record shows only that [the defendant] used his computer to receive and access child pornography, which . . . is insufficient to sustain a broad computer and internet ban.”); Sofsky,

, 126–27 (holding, in case where the defendant “received on his home computer via the Internet more than 1,000 images of child pornography,” that a total internet ban “inflicts a greater deprivation on [his] liberty than is reasonably necessary”); United States v. White,

(10th Cir. 2001) (finding, in case where defendant attempted to purchase child pornography via e-mail, that a restriction barring (Continued) 20 on their face, without any evidence that the underlying conduct—or any other illegal

conduct by Mr. Ellis—involved the internet. Applying the above principles, it is unclear

whether any internet restriction could be established as “reasonably necessary” on such a

record, let alone a complete ban. Therefore, the internet ban imposed by the district court

is overbroad under § 3583(d)(2). See Malenya,

.

While the district court acknowledged that an internet ban would be “a great

inconvenience,” it nevertheless imposed the condition to induce Mr. Ellis’s compliance

with treatment. J.A. 119. But an internet ban implicates fundamental rights, which is more

than merely inconvenient. See, e.g., Eaglin,

(citing Packingham, 137 S. Ct.

at 1737–38) (“[The defendant] has a First Amendment right to be able to email, blog, and

discuss the issues of the day on the Internet while he is on supervised release.”). Such a

vast deprivation demands adequate justification. See

Encouraging Mr. Ellis’s

cooperation does not authorize the district court to impose a punitive restriction.

Moreover, as a practical matter, the internet is likely to be vital to Mr. Ellis’s reentry

to society, including for securing housing and employment. See

(“[O]ne of the

conditions of supervised release is that [the defendant] remain employed: to search for a

job in 2019, the Internet is nearly essential[.]”). Indeed, Mr. Ellis told the district court that

he relies on internet-based apps on his smartphone to look for jobs and commute to work.

In Perazza-Mercado, the Third Circuit found that a total ban on the defendant’s internet

“any access whatsoever to the internet” would “overreach[]” because it would “bar [the defendant] from using a computer at a library to do any research, get a weather forecast, or read a newspaper online”). 21 access at home was “inconsistent with the vocational and educational goals of supervised

release” because it would “prevent[] him from engaging in the kind of educational and

vocational training required for the transition from his prior employment as a teacher into

a new and appropriate career.”

. The same inconsistency is present here, as

to an even more sweeping restriction. See

Thus, while the district court was concerned

with ensuring Mr. Ellis’s treatment, an internet ban may be as likely to hinder Mr. Ellis’s

progress as to help it.

Because the internet restriction is not “reasonably related” and “reasonably

necessary” under § 3583(d), the district court erred by imposing it.

III.

For the foregoing reasons, we conclude that the district court abused its discretion

in imposing an outright ban on internet access and on possessing legal pornography or

entering any location where it may be accessed. We vacate the judgment and remand for

the entry of a modified judgment striking those conditions of supervised release.

REVERSED AND VACATED AND REMANDED WITH INSTRUCTIONS

22 QUATTLEBAUM, Circuit Judge, concurring in the judgment:

I concur in most of the majority opinion. For the reasons ably set forth by Chief

Judge Gregory, I agree that the pornography and internet bans here involve a greater liberty

deprivation than is reasonably necessary to deter Ellis from committing crimes, to protect

the public or to effectively treat Ellis. On that basis alone, we must vacate the judgment

and remand for the entry of a modified judgment striking those conditions of supervised

release.

However, the majority also concludes the bans were not reasonably related to Ellis’

history and treatment under

(d)(1). In my view, the record suggests

otherwise. Accordingly, I would affirm the district court on this issue.

To explain, I review the procedural background. From the beginning, Ellis admitted

“a serious pornography and sex addiction.” J.A. 133. At his first revocation hearing, Ellis

admitted to resisting compliance with his sex offender and mental health treatment. Part of

that resistance stemmed from Ellis’ addiction. Ellis refused to give up his smartphone for

residential treatment because it was an essential means to further his addiction. ∗ The

government found large amounts of pornography in his possession on multiple occasions,

and at one point it discovered that Ellis had been communicating with a young boy through

a social media application. The district court imposed a tailored prohibition of internet-

∗ This resulted in a separate charge—failure to comply with residential re-entry center rules and regulations—that was ultimately dismissed after Ellis conceded to six other violations, including failure to comply with his sex offender and mental health treatment. Still, Ellis admitted to a Probation Officer that “he can’t live without his phone” and that “he purposely got kicked out” of the residential treatment center because “he didn’t agree with the . . . phone restrictions.” J.A. 133. 23 connected devices and social media without approval from the Probation Office. But Ellis

also violated these conditions, using an unauthorized device to view pornography daily and

lying about it during a polygraph examination.

At his second revocation hearing, the government requested a comprehensive

internet and pornography ban during Ellis’ next supervised release. The district court

declined to impose an internet ban, this time prohibiting Ellis from “access[ing], view[ing]

or possess[ing] any legal or illegal pornographic materials.” J.A. 95. Thus, after Ellis’

second violation, the court broadened the restriction but did not impose an internet ban as

the government requested. But once again, Ellis failed to comply with these conditions.

Among his five violations justifying the third revocation of his supervised release was, yet

again, failure to comply with his sex offender treatment requirements.

Thus, the district court at each revocation hearing utilized more restrictive

conditions, after first rejecting the government’s request to impose the restrictions we now

must address. Unfortunately, over and over, Ellis violated those conditions. In the end, the

district court, seeking to impose special conditions to ensure Ellis received the treatment

he desperately needs, felt it had no options other than the pornography and internet bans.

That does not make the bans legal. Again, I agree with the majority that they are too broad.

But they were imposed only after Ellis admitted to a pornography addiction and violated a

series of less onerous restrictions by, among other things, using devices to access

pornography. Thus, at least in my opinion, the bans were sufficiently related to Ellis’

“history and characteristics” and “the need” to provide Ellis with “correctional treatment

24 in the most effective manner.”

(a)(1), (2)(D). Therefore, I would conclude

they are reasonably related to the sentencing factors. See

§ 3583(d)(1).

Last, while I agree that United States v. Van Donk,

(4th Cir. 2020) provides

helpful guidance about restricting access to pornography through supervised release

conditions, I am leery about placing too much emphasis on one fact in that case. As the

majority notes, supportive of our affirmance was a treatment provider’s testimony

connecting the pornography ban to the addiction treatment and risk of repeat criminal

offenses.

. But Van Donk does not categorically require such testimony. That

holding does not preclude a pornography ban without testimony from a treatment provider

so long as “the record supports such a finding.”

. Here, the record amply supports

a relationship between the ban and Ellis’ history and treatment.

25