UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-6388

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

GARY RAY DEBOLT,

Defendant - Appellant.

Appeal from the United States District Court for the Northern District of West Virginia, at Wheeling. John Preston Bailey, District Judge. (5:09-cr-00024-JPB-JPM-1)

Submitted: February 26, 2021 Decided: March 9, 2021

Before WYNN and THACKER, Circuit Judges, and SHEDD, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Gary Ray DeBolt, Appellant Pro Se. David J. Perri, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Gary Ray DeBolt appeals the district court’s order denying DeBolt’s

(e)(2) motion to terminate or modify the conditions of his supervised release and

denying his motion for a stay of execution of his supervised release conditions. DeBolt

argues that the district court erred in denying his § 3583(e)(2) motion and erred in failing

to consider his actual innocence claim. For the following reasons, we affirm.

The district court properly dismissed the majority of DeBolt’s challenges to his

supervised release conditions. We recently held in United States v. McLeod,

(4th Cir. 2020), that “[a]n individual may not use § 3583(e)(2) as a substitute for

an appeal, belatedly raising challenges to the original conditions of supervised release that

were available at the time of his initial sentencing.” However, a § 3583(e)(2) motion may

be predicated on “new, unforeseen, or changed legal or factual circumstances.” Id. at 644.

With the sole exception of one supervised release condition that requires DeBolt to obtain

the approval of his probation officer or the court before using certain electronic devices,

DeBolt’s challenges to his supervised release conditions are “impermissible” because they

rely on “factual and legal premises that existed at the time of his sentencing.” Id.

We conclude, however, that DeBolt’s challenge to the supervised release condition

regarding access to computers is cognizable under McLeod because the Supreme Court’s

ruling in Packingham v. North Carolina,

(2017), on which DeBolt relied

in challenging this condition, is a “new legal circumstance[]” and this challenge “could not

have been brought at the time supervised release was imposed” in 2011. McLeod,

. The district court found that, if it possessed jurisdiction, it would deny DeBolt’s

2 challenge on the merits. We review a district court’s ruling on a motion to modify

conditions of supervised release for abuse of discretion. See United States v. Trimble,

(8th Cir. 2020). We have reviewed the record and the district court did not

abuse its discretion in determining that this supervised release condition was not

unconstitutional after Packingham.

Finally, because DeBolt’s informal brief does not challenge the basis for the district

court’s disposition of his actual innocence claim, he has forfeited appellate review of the

court’s order denying this claim. See 4th Cir. R. 34(b); Jackson v. Lightsey,

(4th Cir. 2014) (“The informal brief is an important document; under Fourth Circuit

rules, our review is limited to issues preserved in that brief.”).

Accordingly, we deny DeBolt’s motion for a stay pending appeal and affirm the

district court’s order. We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before this court and argument would

not aid the decisional process.

AFFIRMED

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