USCA4 Appeal: 21-4419 Doc: 38 Filed: 02/17/2023 Pg: 1 of 24

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-4419

UNITED STATES OF AMERICA,

Plaintiff − Appellee,

v.

JOSEPH D. CASTELLANO,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Raymond A. Jackson, Senior District Judge. (2:07−cr−00182−RAJ−JEB−1)

Argued: December 6, 2022 Decided: February 17, 2023

Before DIAZ, RUSHING, and HEYTENS, Circuit Judges.

Dismissed in part; reversed in part; vacated and remanded by published opinion. Judge Diaz wrote the opinion, in which Judge Heytens joined. Judge Rushing wrote a dissenting opinion.

ARGUED: Andrew William Grindrod, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Norfolk, Virginia, for Appellant. Aidan Taft Grano-Mickelsen, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Geremy C. Kamens, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Jessica D. Aber, United States Attorney, Richmond, Virginia, Joseph Kosky, Assistant United States Attorney, Norfolk, Virginia, Jacqueline R. Bechara, Assistant United States Attorney, OFFICE OF THE USCA4 Appeal: 21-4419 Doc: 38 Filed: 02/17/2023 Pg: 2 of 24

UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

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DIAZ, Circuit Judge:

Joseph D. Castellano pleaded guilty to transporting child pornography. The district

court sentenced him to twelve years in prison and lifetime supervised release, subject to

certain conditions. Castellano has struggled to comply with the conditions, returning to

prison three times for violating them.

Castellano now challenges the sentence imposed after his third revocation of

supervised release. He argues that the court erred in reimposing a special condition limiting

his access to pornography (broadly defined), and in imposing a plainly unreasonable 24-

month prison term. We reject the government’s contention that Castellano failed to timely

raise the first issue, and agree with him that the court erred in reimposing the condition.

We therefore reverse the district court’s order rejecting Castellano’s objection to the

condition, vacate the judgment, and remand for resentencing.

I.

Castellano was indicted for possessing and transporting child pornography. He

pleaded guilty to one count of transporting child pornography in violation of 18 U.S.C.

§ 2252A(a)(1) and the district court sentenced him to 144 months in prison. The court also

imposed lifetime supervised release with conditions, including Special Condition Nine:

“The defendant shall not have access to or possess any pornographic material or pictures

displaying nudity or any magazines using juvenile models or pictures of juveniles.” J.A.

23.

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Castellano completed his prison term and began his supervised release. But in the

weeks after his release from prison, Castellano purchased and admitted to watching four

on-demand pornographic movies, violating Special Condition Nine. Castellano also

changed jobs without informing his probation officer and failed to update his sex-offender

registration, violating two other conditions. After a hearing, the district court revoked

Castellano’s supervised release and sentenced him to nine more months’ imprisonment and

lifetime supervised release. The court noted that the “same standard and special conditions

of supervised release heretofore imposed shall remain in effect” upon his release from

prison. J.A. 32.

Castellano was again released from prison and, with his probation officer’s help,

moved into a halfway house. But soon after, his probation officer filed another petition to

revoke Castellano’s supervised release. The petition alleged that Castellano breached eight

conditions of his supervised release by (among other things) driving without a license,

failing to contact his probation officer, and having contact with his ex-fiancée’s toddler

son. It also stated that Castellano had violated Special Condition Nine by possessing

“numerous screenshots of preteens, teens, and adult pornography,” his own drawings of

nude women, and nude photographs of himself. J.A. 38–39. Castellano admitted to the

officer that he possessed a smartphone and used it to view pornographic websites.

The district court again revoked Castellano’s supervised release, sentencing him to

20 more months’ imprisonment and lifetime supervised release. The court repeated that

the “same standard and special conditions previously imposed on him” would apply to his

supervised release. J.A. 41.

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Castellano was released from prison again and began supervised release. A few

months later, his probation officer filed yet another petition alleging that Castellano had

violated his special conditions. First, the officer said he found a smartphone on Castellano

during a pat-down, violating a condition prohibiting Castellano from unauthorized use of

the internet. Second, a subsequent search of the phone found five adult pornographic

movies, in violation of Special Condition Nine. Third, Castellano admitted that he had

unapproved contact with his girlfriend’s daughter and her friend, both aged 17. At the

hearing, Castellano’s counsel explained that Castellano planned to go to the beach with his

girlfriend, who brought along the teenagers. Counsel noted that Castellano was never alone

with either teenager. 1

The Guidelines’ policy-statement range for Castellano’s violations was four to ten

months’ imprisonment. But the government argued that Castellano’s pattern of violations

painted a portrait of “a defendant who just does not care and is not going to abide by the

conditions” of his supervised release. J.A. 58. Noting that the court had previously

imposed nine- and 20-month sentences, the government asked the court to impose the

maximum 24-month sentence for the latest violations. Castellano’s counsel argued that the

latest violations (including merely “having a smartphone”) didn’t merit a 24-month

sentence. J.A. 62. And he said that Castellano would lose his home and job if he was

imprisoned again, undoing any progress he had made.

1 The probation officer also alleged that Castellano inappropriately touched a minor coworker. In exchange for Castellano’s admission of guilt on the three other violations, the government moved to dismiss this violation, and the district court granted the motion.

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The court imposed a 24-month sentence, explaining that it had previously handed

down a 20-month sentence and “[did] not believe the appropriate response is to come back

now and give you far less punishment in the hope that maybe you will do what you were

required to do in the first instance.” J.A. 66.

After the court announced the sentence, Castellano’s counsel asked the court to

“modify” Special Condition Nine and some of Castellano’s other supervised-release

conditions. 2 J.A. 68. Castellano’s counsel argued that the restriction on all pornography

was vague, overbroad, and not tied to a compelling interest.

The district court rejected Castellano’s objection to Special Condition Nine. The

court reasoned that the condition didn’t extend to “nonsexual advertisements” with teen

subjects, so it wasn’t facially overbroad. J.A. 91. But even a condition that did cover

2 Specifically, Castellano argued that two financial-monitoring conditions—Special Conditions Two and Three—were “not related to the offense.” J.A. 68. The court overruled the objection from the bench, explaining that these conditions were “necessary to facilitate the proper supervision of the defendant” by monitoring if he bought a smartphone or computer that could access the internet. J.A. 69.

However, the district court had entered an order removing Special Condition Two in 2018. See J.A. 28. On appeal, Castellano agrees that if we find the condition wasn’t reimposed, his challenge is moot. And he stipulates that “if special condition two is gone, [he] withdraws his objection to special condition three.” Appellant’s Br. at 25.

The district court never reimposed Special Condition Two after removing it. And the revocation judgment specifies that Castellano will “resume the same standard and special conditions previously imposed,” which doesn’t include Special Condition Two. J.A. 73. Since Special Condition Two is “gone,” Castellano has withdrawn his objection to Special Condition Three. We therefore dismiss Castellano’s challenges to both conditions.

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nonsexual advertisements would be warranted, the court found, given Castellano’s

“unstable addiction and continued disrespect for terms of supervised release.” J.A. 92.

This appeal followed.

II.

On appeal, Castellano argues that the court erred when it reimposed Special

Condition Nine and sentenced him to 24 months in prison. We agree.

A.

At the outset, the government urges us to reject Castellano’s challenge to Special

Condition Nine as untimely. Castellano should have objected to the condition when it was

imposed at his original sentencing, the government argues—not at a subsequent revocation

hearing. The government cites United States v. Johnson,

(4th Cir. 1998), in

which we held that a defendant couldn’t facially challenge a supervised-release condition

imposed as part of his original sentence in an appeal from a revocation order.

.

Instead, the defendant “should have raised his objections in a timely appeal of that initial

sentence.”

Even assuming Johnson applies here, the government’s failure to make this

argument in the district court precludes our review of it. A nonjurisdictional timeliness

argument can be forfeited “if the party asserting the rule waits too long to raise the point.”

Kontrick v. Ryan,

(2004); see also United States v. Jordan,

, 171 n.2 (4th Cir. 2020).

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In Eberhart v. United States, for example, the defendant filed an untimely

“supplemental memorandum” supporting his motion for judgment of acquittal.

(2005) (per curiam). The government opposed the memorandum’s arguments on

the merits in the district court; it first raised the timeliness issue on appeal.

at 13–14.

The Court held that “where the Government failed to raise a defense of untimeliness until

after the District Court had reached the merits, it forfeited that defense,” so the appellate

court should have proceeded to the merits as well.

.

So too here. The Johnson argument was available to the government when

Castellano objected to the special condition in the district court. Yet the government’s

brief in opposition never mentioned it, instead opting to respond to Castellano’s arguments

on the merits. And the district court accordingly ruled on the merits.

The government suggested at oral argument it shouldn’t have been expected to raise

the issue in the district court because Johnson speaks only of appeals. But in its brief, the

government urged us to adopt a broader position: that Johnson bars a defendant from

challenging a previously imposed condition both on appeal and at the revocation hearing.

See, e.g., Appellee’s Br. at 19 (arguing that “it was improper for defendant to facially attack

those conditions for the first time during the third revocation proceeding.”). So Johnson’s

focus on appeals doesn’t excuse the government’s (untimely) timeliness argument.

We also disagree with the government’s contention that any “unique interests in

judicial efficiency, conservation of scarce judicial resources, and orderly and prompt

administration of justice” compel us to overlook the omission. United States v. Metzger,

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(4th Cir. 1993) (cleaned up). So we hold that the government forfeited

any timeliness objection to Castellano’s Special Condition Nine challenge.

B.

1.

We have a few more procedural hurdles to clear before we reach the merits. First,

Castellano offers two potential ways to view his challenge to Special Condition Nine.

Castellano primarily urges us to think of the revocation hearing as a fresh slate that allows

a defendant to freely challenge the conditions that will govern a future term of supervised

release, even if those conditions had also been imposed for past terms. We would review

those conditions for abuse of discretion, just as we would if they were imposed at the

original sentencing. United States v. Van Donk,

(4th Cir. 2020). In the

alternative, Castellano suggests we view his objection as a request to “modify” Special

Condition Nine under

(e)(2). 3 In that case, Castellano would first have to

point to “new, unforeseen, or changed legal or factual circumstances,” because challenges

that “rest[] on the factual and legal premises that existed” at the defendant’s initial

sentencing are “impermissible.” United States v. McLeod,

(4th Cir.

2020). Only then could we review the condition for abuse of discretion.

We need not evaluate Castellano’s “fresh slate” argument because the district court

treated Castellano’s objection as a request to modify the condition after it was imposed. At

3 That section gives district courts authority to modify, reduce, or enlarge conditions of supervised release at any time before the expiration or termination of supervised release.

(e)(2).

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the hearing, the court asked Castellano’s counsel if he “want[ed] to modify some of those

[conditions] he’s already on?” and counsel responded “Yes.” J.A. 68. The court

nonetheless issued an order reimposing the same special conditions. J.A. 73. In a

subsequent order, the court determined that it found “no meritorious reason to remove”

Special Condition Nine. J.A. 92 (emphasis added). In other words, the court handed down

a revocation sentence reimposing the condition—then declined to exercise its statutory

authority to modify it.

We’ll therefore view Castellano’s objection as one to modify the terms of his

upcoming supervised release under

(e). And as we’ll explain, we can

reach the merits even on this narrower path.

2.

Next, we examine whether Castellano’s modification request for Special Condition

Nine is supported by “new, unforeseen, or changed legal or factual circumstances.”

McLeod,

. Castellano suggests that two of our recent pornography-ban cases

satisfy this bar: Van Donk,

, and United States v. Ellis,

(4th

Cir. 2021). At oral argument, the government disagreed that Van Donk and Ellis had

caused a “sea change” in the law around pornography bans and argued that the cases only

added more “detail” to our existing jurisprudence. But we agree with Castellano.

In Van Donk, the district court imposed a supervised-release condition that barred

the defendant from “possess[ing], view[ing] or otherwise us[ing] any type of pornography,

to include adult, juvenile or child pornography, or pornography that depicts juveniles.”

. The court credited a clinical social worker’s testimony that “adult

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pornography and other sexually stimulating images could serve as a gateway to child

pornography for [the defendant], and his addiction threatened to hinder his mental health

and social relationships in the future.”

. We affirmed the sentence, holding that

this testimony satisfied “the requirement that the district court make an individualized

assessment as to each special condition.”

“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.’” Ellis,

(quoting Van Donk,

). The next year in Ellis, we applied Van Donk in

evaluating an explanation and evidentiary showing that fell on the other side of the line.

There, the government “only presented that the pornography ban was necessary to

avoid ‘occasions of sin’” and failed to present testimony “from a witness responsible for

Mr. Ellis’s treatment.”

at 1099–1100. So we found the pornography restriction flunked

Van Donk because it was “inadequately supported and explained” on the record before the

district court.

Because the restriction therefore couldn’t be sustained as “reasonably

related” to the relevant sentencing factors under § 3583(d)(1)—and was overbroad under

§ 3583(d)(2) to boot—we directed the district court to strike the condition without giving

the government another chance to offer evidence. Id. at 1102, 1106.

Contrary to the government’s assertion, we haven’t required a “sea change” in the

law to satisfy McLeod. It’s true that at a high level of generality, a rule requiring

explanation and record support for a special condition isn’t new. But Van Donk and Ellis

go a step further, fleshing out exactly what kind of explanation and evidence are required

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in the pornography-restriction context. So Van Donk and Ellis equipped Castellano with

the “changed legal circumstances” McLeod requires. 4

Our conclusion is bolstered by our recent holding in United States v. Morris,

(4th Cir. 2022). There, we found that Ellis and two other circuit precedents had

sufficiently altered the law around internet-use conditions, permitting the district court to

consider a modification request for such a condition.

.

We explained that “Ellis established that non-contact sex offenses can’t justify an

internet ban absent a connection between the ban and the offender’s conduct.”

Put

differently, Ellis made clear the government’s evidentiary burden to impose an internet-

access condition: It must provide “evidence connecting the internet to any criminal

conduct.” Ellis,

. Likewise, for pornography restrictions, Ellis clarified

that the government must put forth “individualized evidence linking pornography to [the

defendant’s] criminal conduct or rehabilitation and recidivation risk.”

.

In sum, we’re satisfied that Van Donk and Ellis sufficiently “altered the law

surrounding [pornography-restriction] conditions.” Morris, 37 F.4th at 977. So we hold

4 Our dissenting colleague suggests that since Ellis and Van Donk didn’t directly change the law regarding restrictions on accessing pictures of juveniles, there are no “changed conditions” justifying a modification of that part of the condition. See Dissenting Op. at 23. But the ban on pictures of juveniles is at least substantially related to the ban on adult pornography—both have the aim of preventing a slide into viewing child pornography, and both restrict at least some First Amendment-protected materials. The district court saw fit to include both restrictions in the same condition, and McLeod doesn’t require us to circumscribe our review.

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that we (and the district court) may review Castellano’s challenge to Special Condition

Nine.

C.

We turn at last to the merits of Castellano’s objection to Special Condition Nine.

“We review special conditions of supervision for abuse of discretion, recognizing that

district courts have ‘broad latitude’ in this space.” Van Donk,

. Still,

conditions of supervised release must comply with the requirements of

(d).

That is, they must (1) be “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) involve “no

greater deprivation of liberty than is reasonably necessary” to achieve those purposes; and

(3) accord with any pertinent Sentencing Commission policy statements.

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

discretion and grounds for vacating the conditions.” Ellis,

.

Castellano argues that Special Condition Nine isn’t reasonably related to a

legitimate goal of supervision and involves a greater deprivation of liberty than is

reasonably necessary. The government responds that the ban is justified because

Castellano admitted to being “addict[ed]” to pornography and his “interest in child

pornography [was] intertwined with adult pornography.” Appellee’s Br. at 26–27.

Under Van Donk and Ellis, however, the government needed to put forth

“individualized evidence linking pornography to [Castellano’s] criminal conduct or

rehabilitation and recidivation risk.” Ellis,

. And the district court had to

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provide an “individualized explanation[]” for the condition’s “broad sweep.” Van Donk,

.

The district court found that Castellano “obviously has an addiction to pornographic

images that he has yet to adequately address.” J.A. 92. And though the court

acknowledged that “possession of adult pornography is not the same as juvenile images,”

it concluded that Castellano’s “unstable addiction and continued disrespect for terms of

supervised release [] indicate that possession of any juvenile image, no matter how

harmless, is a slippery slope for Defendant.”

Castellano’s seeming inability to comply

with his supervised-release conditions, the court found, “indicates that [he] is spiraling

down a path of bad habits which could potentially lead to another charge related to the

underlying offense.”

While the court’s reasoning “may seem intuitive or commonsense to some, it must

be supported by individualized evidence to meet § 3583(d)’s reasonably related standard.”

Ellis,

. Such evidence is lacking here.

The government didn’t offer any individualized evidence, like the “testimony from

a witness responsible for [Castellano’s] treatment,” linking Castellano’s consumption of

adult pornography and his risk of viewing child pornography. 5

. The court’s

5 Our dissenting colleague notes that the government cited “an article compiling academic literature about the unique effect sexually explicit material of any kind has on sex offenders and their rehabilitation efforts.” Dissenting Op. at 21. But this article— published by a “KBSolutions Inc.,” see J.A. 85–86—“could justify imposing a pornography ban on every sex offender categorically, which Van Donk prohibits.” Ellis,

.

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“slippery slope” inference can’t bridge the gap. See

(rejecting the government’s

argument that an adult 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.’”). 6

The lack of evidence and explanation here is particularly troubling given Special

Condition Nine’s broad sweep. The condition prohibits Castellano from “hav[ing] access

to . . . pictures displaying nudity”—including, evidently, his own drawings of nude figures

or nude photographs of himself. J.A. 34, 38–39. It also prevents him from having access

to “any magazines using juvenile models or pictures of juveniles,” J.A. 34, a prohibition

Castellano points out is both overinclusive (including non-sexual photographs of fully

clothed individuals) and underinclusive (excluding other types of media like books or

newspapers). See Appellant’s Br. at 23.

Moreover, “hav[ing] access” could be interpreted to bar Castellano from places

where these depictions may be present—including libraries, museums, gas stations, or

newsstands. See Ellis,

. As in Ellis, we find that “[s]uch a severe

deprivation of freedom is unnecessary to prevent any purported temptation towards

viewing child pornography or to otherwise further rehabilitation.”

6 The government cites several Fifth Circuit cases upholding similar bans where there was evidence the defendant’s “interest in child pornography [was] intertwined with adult pornography.” Appellee’s Br. at 27–28 (citing United States v. Abbate,

(5th Cir. 2020) (per curiam); United States v. Miller,

(5th Cir. 2011)). But these cases draw inferences that Ellis prohibits.

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The government’s counterarguments are unavailing. For one, the government

argues that Castellano’s underlying offense had to do with his possession of nude photos,

so the restriction on “pictures displaying nudity” was reasonably necessary to prevent

recidivism and protect the public. Appellee’s Br. at 31–33. But the defendant in Ellis was

also convicted of possessing child pornography.

.

The government also argues that Castellano’s repeated defiance of Special

Condition Nine proves its necessity. See Appellant’s Br. at 25–26. But a court can’t

impose a condition so broad that it sets the defendant up to fail, then cite that failure as a

reason to keep the condition in place. Standing alone, a defendant’s failure to comply with

a condition says little about whether the condition “impermissibly restricts more liberty

than is reasonably necessary.” Ellis,

.

We hold that, on the record before the district court, Special Condition Nine isn’t

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

conclude that the district court abused its discretion in retaining the condition. As in Ellis,

we decline to give the government another chance to bolster the record on remand. See id.

at 1102; see also United States v. Fluker,

(4th Cir. 2018) (noting that

the government shouldn’t “get[] a second bite at the apple to produce sufficient evidence

to support a particular sentencing decision.”).

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We therefore reverse the order declining to modify special conditions and direct the

district court to strike Special Condition Nine on remand. 7

III.

Finally, because the district court imposed a 24-month sentence based largely on

Castellano’s alleged violation of Special Condition Nine, we vacate the sentence so that

the court may reconsider whether Castellano’s actions merited the statutory maximum

sentence.

In reviewing a revocation sentence, we first determine whether the sentence was

“unreasonable at all, procedurally or substantively.” United States v. Coston,

(4th Cir. 2020) (cleaned up). A revocation sentence is procedurally reasonable if

the district court considered the applicable policy-statement range and § 3553(a) factors,

and substantively reasonable if it stated a “proper basis” for concluding the defendant

should receive the sentence imposed (up to the statutory maximum). See United States v.

Crudup,

, 438–40 (4th Cir. 2006).

If we conclude that the sentence is unreasonable, we then determine whether it is

plainly so. Coston,

. An error is plain “if the settled law of the Supreme

7 Castellano also argues that the condition’s ban on his access to “pictures displaying nudity” is unconstitutionally vague. Because we strike the condition on non-constitutional grounds, we need not reach Castellano’s constitutional argument. See Thompson v. Greene,

(4th Cir. 2005).

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Court or this circuit”—at the time of appellate consideration—“establishes that an error

has occurred.” United States v. Cathorne,

(4th Cir. 2013).

The district court based the revocation sentence on three special-condition

violations: Castellano’s possession of a smartphone, his possession of five adult

pornographic movies, and his unapproved contact with two minors. The court noted its

fear that Castellano’s “getting a smartphone and accessing adult pornography” would soon

“lapse into something else.” J.A. 65. It also emphasized that Special Condition Nine,

“[n]ot viewing pornography,” was “all part of the same thing that brought you here, the

child pornography.” J.A. 66.

In other words, the district court based its sentence in large part on the violation of

a condition that we now vacate as not reasonably related and overbroad. We therefore hold

that the court didn’t state a “proper basis” for imposing the statutory maximum, rendering

the revocation sentence substantively unreasonable. See Crudup,

. We

also conclude that, given our holdings in Van Donk and Ellis, the error was plain.

Accordingly, we vacate the judgment and remand for resentencing.

IV.

In sum, we reverse the district court’s imposition of Special Condition Nine and

vacate the judgment for resentencing consistent with this opinion. We dismiss Castellano’s

challenges to Special Condition Two and Three.

DISMISSED IN PART, REVERSED IN PART, VACATED AND REMANDED

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RUSHING, Circuit Judge, dissenting:

I would affirm the district court’s reimposition of Special Condition Nine. Even

assuming that the Government could and did forfeit its timeliness objection, that we may

treat Castellano’s objection as a modification request, and that United States v. Van Donk,

(4th Cir. 2020), and United States v. Ellis,

(4th Cir. 2021),

present changed legal circumstances supporting a modification request, I disagree with the

majority’s conclusion that the district court abused its discretion in denying Castellano’s

request to modify the condition on that ground.

Our Circuit follows “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.’” Ellis,

(quoting Van Donk,

). Following this rule, “[w]e have upheld an adult

pornography ban when,” for example, “the condition was based on a pornography

addiction that led . . . to viewing child pornography.” United States v. Sueiro, --- F.4th ---

,

, at *8 n.5 (4th Cir. Feb. 3, 2023) (citing United States v. Arce,

(4th Cir. 2022)).

The district court here considered and relied upon just such evidence in reimposing

Special Condition Nine. Castellano pled guilty in 2007 to transporting child pornography.

At the time, he admitted that he had an “addiction” and “cannot stop looking at underage

girls.” J.A. 103. Eleven years later, while on supervised release, Castellano confirmed the

same, telling his probation officer, “I have a serious addiction/problem and need help. . . . I

use porn as a means to escape.” J.A. 30.

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History bears out Castellano’s admitted addiction. He has a prior state conviction

for possession of child pornography. Before he was even released from federal custody,

Castellano was reprimanded for “being active on . . . teen pornography sites” and

“searching for teen pornography” while residing in a halfway house. J.A. 29. He also

admitted to “watch[ing] adult pornography almost daily” during that time. J.A. 30. Within

one week of beginning his supervised release, Castellano was downloading and watching

pornographic movies. His release was revoked, and within two months of beginning his

second term of supervised release, he admitted to his probation officer that he used a

smartphone to view pornography websites and “‘screenshot’ numerous still pictures of both

adults and teenage girls (ages 13-17) to view later.” J.A. 38–39. “[N]umerous screenshots

of preteens, teens, and adult pornography” were found on his smartphone. J.A. 39.

Castellano’s release was revoked again, and less than six months after resuming supervised

release, he was caught with multiple adult pornographic videos.

Not only has Castellano been unable to stop viewing pornography, he also has been

unable to avoid contact with children as required by the conditions of his supervised

release. During his second term of supervised release, Castellano admitted he slept in the

same bed as a 15-month-old child and had contact with six other girls and boys between

the ages of 5 and 15. During his third term of supervised release, Castellano admitted

having unapproved contact with two 17-year-old girls. And in exchange for Castellano

admitting violations of three supervised release conditions at that time, the Government

dismissed an allegation that he inappropriately touched a minor female co-worker.

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In addition to this evidence, the Government presented the district court with the

results of Castellano’s psychosexual evaluation and sexual history polygraph, as well as an

article compiling academic literature about the unique effect sexually explicit material of

any kind has on sex offenders and their rehabilitation efforts. The Government cited

research indicating that sex offenders respond to sexual images differently than non-

offenders, leading to more deviant sexual fantasy and an increased likelihood of sexual

misconduct. Linking this evidence to Castellano, the Government noted his admitted

addiction to pornography, including child pornography. Because of the connection

between legal and illegal pornography in Castellano’s struggle to overcome his addiction,

the Government argued that restricting his access to legal pornography would “help him

meet his treatment goals and overcome his proclivity toward sexual deviance,” reducing

his risk of reoffending. J.A. 86.

The district court considered all the evidence and explained its decision not to

modify Special Condition Nine. The court recounted Castellano’s repeated violations of

the terms of his supervised release, including contact with children and possessing

pornography. Indeed, the court noted, Castellano has never complied with his supervised

release terms “for any substantial period of time.” J.A. 92. The court observed that

Castellano “obviously has an addiction to pornographic images that he has yet to

adequately address,” noting in particular his admitted addiction to images of “underage

girls” and his repeated violations for possessing adult pornography. J.A. 92. Ultimately,

the court reasoned that Castellano’s “unstable addiction and continued disrespect for terms

of supervised release” indicated he was “spiraling down a path” toward reoffending. J.A.

21 USCA4 Appeal: 21-4419 Doc: 38 Filed: 02/17/2023 Pg: 22 of 24

92. Given “the nature and circumstances of his underlying offense” and the need “to

protect the public from further crimes of the defendant,” the court found “no meritorious

reason to remove” Special Condition Nine. J.A. 92.

This was not an abuse of discretion. The district court adequately explained why

Special Condition Nine was still appropriate, and individualized evidence supported a

finding that Special Condition Nine was reasonably related to the nature and circumstances

of the offense, Castellano’s history and characteristics, deterrence, protection of the public,

and rehabilitation, as well as no broader than reasonably necessary to achieve those

purposes. See

(d)(1)–(2); Ellis,

. Moreover, “the reason

for prohibiting [Castellano] from accessing pornography is obvious.” Arce,

. Like we recently held in a similar case, “[i]t was done based on his self-admitted

pornography addiction,” which had “escalated into viewing child pornography.”

The primary reason the majority gives for concluding to the contrary is the absence

of “testimony from a witness responsible for [Castellano’s] treatment.” Supra, at 14

(quoting Ellis,

). But we have never made the testimony of a treatment

provider a requirement for this type of condition. See, e.g., Arce,

; United

States v. Lord,

(4th Cir. 2010); United States v. Henson,

(4th Cir. 2001). Nor should we. The link between “consumption of adult

pornography and [a defendant’s] risk of viewing child pornography,” supra, at 14, can be

shown in a variety of ways, and we strip district courts of their duty to assess this

individualized evidence when we demand cookie-cutter proof in every case.

22 USCA4 Appeal: 21-4419 Doc: 38 Filed: 02/17/2023 Pg: 23 of 24

The majority also concludes Special Condition Nine is overbroad and

underinclusive for restricting Castellano’s access to pictures of juveniles. Supra, at 15–16.

I cannot agree. First, the district court unequivocally stated that this restriction applies only

to “sexually suggestive images of minors” and excludes from its reach the “non-sexual

advertisements” that Castellano’s counsel hypothesized. J.A. 91. The need for this

condition is “self-evident and unassailable.” Sueiro, --- F.4th ---,

, at *7

(internal quotation marks omitted) (describing as “obvious” the connection between

defendant’s child pornography crimes and a “ban on viewing juvenile models”). And if

Castellano were to find himself facing revocation for seeing a nonsexual photograph or

passing a newsstand, see supra, at 14, he could raise an as-applied challenge to the

condition in a future hearing. See Van Donk, 961 F.3d at 325–326; see also Sueiro, ---

F.4th ---,

, at *8 (applying “the ‘general rule that probationers may not

be punished for inadvertent violations’” (quoting Van Donk,

)).

Second, our ability to order modification of this portion of Special Condition Nine

is doubtful. The supposed “changed legal circumstances” on which the majority relies to

open the door to Castellano’s modification request are Van Donk and Ellis. The majority

says those decisions altered the law concerning supervised release restrictions on legal

pornography. But no one contends those decisions changed the law regarding restrictions

on accessing or possessing pictures of juveniles. Castellano’s request to alter that portion

of Special Condition Nine “rests on the factual and legal premises that existed at the time

of his [initial] sentencing,” foreclosing this part of his modification request. United States

v. McLeod,

(4th Cir. 2020).

23 USCA4 Appeal: 21-4419 Doc: 38 Filed: 02/17/2023 Pg: 24 of 24

Finally, I disagree with the majority’s decision to sua sponte vacate Castellano’s

sentence based on its determination that Special Condition Nine should be stricken. Supra,

at 17–18. At his revocation hearing, Castellano admitted violating Special Condition Nine

(as well as two other conditions) and raised no as-applied challenge to that condition with

respect to this violation. In exchange, the Government dropped two other charged

violations. Castellano challenged Special Condition Nine only prospectively for the

supervised release term to follow his 24-month revocation sentence. Accordingly, on

appeal he made no argument that we should vacate his sentence if we find the district

court’s most recent reimposition of Special Condition Nine unsupported. The majority,

however, holds that Castellano’s admitted violation of a condition that he agreed applied

to him at the time was not a “proper basis” for his revocation sentence. Supra, at 18. That

is insupportable.

I respectfully dissent.

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