USCA4 Appeal: 22-4159     Doc: 35        Filed: 03/18/2024   Pg: 1 of 9




                                          UNPUBLISHED

                              UNITED STATES COURT OF APPEALS
                                  FOR THE FOURTH CIRCUIT


                                             No. 22-4159


        UNITED STATES OF AMERICA,

                           Plaintiff − Appellee,

                     v.

        KEVLIN JERROD JACKSON, a/k/a Kevlin Jackson,

                           Defendant – Appellant.


        Appeal from the United States District Court for the Southern District of Virginia, at
        Huntington. Robert C. Chambers, District Judge. (3:21−cr−00091−1)


        Argued: October 26, 2023                                    Decided: March 18, 2024


        Before DIAZ, Chief Judge, and WILKINSON and HEYTENS, Circuit Judges.


        Vacated and remanded by unpublished opinion. Chief Judge Diaz wrote the opinion, in
        which Judge Wilkinson and Judge Heytens joined.


        ARGUED: Jonathan D. Byrne, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
        Charleston, West Virginia, for Appellant. Joseph Franklin Adams, OFFICE OF THE
        UNITED STATES ATTORNEY, Huntington, West Virginia, for Appellee. ON BRIEF:
        Wesley P. Page, Federal Public Defender, Lex A. Coleman, Assistant Federal Public
        Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West Virginia,
        for Appellant. William S. Thompson, United States Attorney, OFFICE OF THE UNITED
        STATES ATTORNEY, Charleston, West Virginia, for Appellee.
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        Unpublished opinions are not binding precedent in this circuit.




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        DIAZ, Chief Judge:

               Kevlin Jerrod Jackson pleaded guilty to being a felon in possession of firearms. He

        challenges a special condition of his supervised release that permits warrantless searches

        of his property, person, and papers.      Because we conclude that the district court’s

        imposition of this condition was procedurally unreasonable, we vacate the search condition

        and remand for resentencing.



                                                     I.

               In November 2020, law enforcement received information that Jackson was

        distributing drugs. After witnessing him engage in an apparent drug transaction six months

        later, officers executed a search warrant at Jackson’s apartment. They seized two firearms

        and about sixty grams of cocaine.

               Pursuant to a plea agreement, Jackson pleaded guilty to being a felon in possession

        of firearms, in violation of 

(g)(1) and 924(a)(2).

               The presentence report (the “PSR”), completed by Jackson’s probation officer,

        calculated Jackson’s guideline range as 37 to 46 months’ imprisonment, followed by 1 to

        3 years’ supervised release. As relevant here, the PSR recommended the following special

        condition of supervised release:

               The defendant shall submit his or her person, property, house, residence,
               vehicle, papers, or office to a search conducted by a United States probation
               officer when there is reasonable suspicion that the defendant has violated a
               condition of supervision. The search must be conducted at a reasonable time
               and in a reasonable manner. Failure to submit to a search may be grounds



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               for revocation of release. The defendant shall inform other occupants that
               the premises may be subject to searches pursuant to this condition.

        J.A. 152.

               The PSR justified this recommendation by citing to Jackson’s prior felony drug

        conviction, his history of probation and supervised release violations, and the facts of the

        underlying offense. It submitted that the condition promoted public safety and deterrence

        by allowing “effective oversight” and quick intervention if the probation officer suspects

        that Jackson has violated a condition of supervision. J.A. 152.

               Jackson objected to the search condition before sentencing. He argued that the

        condition (1) wasn’t based on his individual characteristics; (2) wasn’t required by

        Congress for felon-in-possession offenses; (3) didn’t relate to the purposes of 

(a); (4) involved a greater deprivation of liberty than necessary; and (5) conflicted

        with the Sentencing Commission’s policy statements.

               The probation officer responded that the search condition was a “Mandatory

        Condition[] of supervised release as reflected in Administrative Office of the United States

        Courts Form 245B . . . which this officer does not have the authority to amend.” J.A. 159.

               Jackson renewed his objections to the search condition at sentencing. He also added

        that the condition was (1) unnecessary because another standard condition would permit

        his probation officer to visit unannounced and seize prohibited items in plain view; and

        (2) overly broad because it doesn’t require a nexus between the suspected violation and

        area to be searched. Finally, he complained that there was no judicial remedy against

        improper searches since the exclusionary rule doesn’t apply in revocation proceedings.


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               In response, the government adopted the PSR’s justification. It also argued that the

        condition wasn’t a “blanket search condition” because “[i]t’s tied to that reasonable

        suspicion standard.” J.A. 114.

               The district court imposed a downward variant sentence of 15 months’

        imprisonment followed by 3 years’ supervised release. It then denied Jackson’s objections

        to the search condition.

               The court agreed with the government that the reasonable-suspicion standard

        sufficiently limited the condition. It also reasoned that if Jackson’s probation officer

        witnessed an apparent drug deal—as law enforcement had before searching Jackson’s

        home—she wouldn’t be able “to actually search for anything based upon just the [plain-

        view] provision.” J.A. 114. The court concluded, “I think this . . . will be construed and

        applied in a way that connects the suspicious circumstances to a particular violation and

        not just some theoretical all-encompassing violation.” J.A. 114–15.

               Although the court purported to adopt the PSR and addendum before imposing

        Jackson’s sentence, it didn’t address the PSR’s original explanation for the condition nor

        its response to Jackson’s written objections.

               This appeal followed.



                                                    II.

               “We review special conditions of supervised release for abuse of discretion,

        recognizing that district courts have broad latitude in this space.”     United States v.

        Castellano, 

 (4th Cir. 2023) (cleaned up). Still, the district court must

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        adequately explain any special condition. See United States v. Van Donk, 

,

        322–23 (4th Cir. 2020). And special conditions must comply with the requirements of

        

(d). See United States v. Ellis, 

 (4th Cir. 2021).

               Jackson’s sole argument on appeal is that the search condition doesn’t comport with

        § 3583(d). But we can’t assess the condition’s substantive reasonableness because the

        district court’s explanation for imposing it was inadequate. 1 See United States v. Boyd, 

 (4th Cir. 2021) (“Unless a court adequately explains its reasons for imposing

        certain conditions, we can’t judge whether the § 3583(d) factors have been met.” (citing

        United States v. McMiller, 

 (4th Cir. 2020))).

               The district court must provide an “individualized explanation” for why a special

        condition is appropriate considering the § 3583(d) factors. Van Donk, 

        (citing McMiller, 954 F.3d at 676–77). Under § 3583(d), a special condition must 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.” McMiller, 

.

               The degree of explanation required “var[ies] with the nature of the condition

        imposed and the circumstances of each case.” 

 at 677 (citing United States v. Blue, 877



               1
                We’re required to ensure that the district court didn’t commit a procedural error—
        such as failing to adequately explain the special condition—before turning to substantive
        reasonableness, even when the defendant doesn’t make the argument. United States v.
        Provance, 

, 217–18 (4th Cir. 2019).

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, 518 (4th Cir. 2017)). “But where a defendant makes nonfrivolous objections that

        cast doubt on compliance with § 3583(d), the district court must address them head-on.”

        Boyd, 

 (citing United States v. Arbaugh, 

 (4th Cir. 2020)).

               The district court didn’t address Jackson’s nonfrivolous objections. To take but one

        example, Jackson argued that the search condition wasn’t based on his individual

        circumstances. Jackson had a limited, non-violent criminal history, expressed remorse,

        and took rehabilitative steps before sentencing. Yet the district court said nothing in

        response.

               Jackson also objected to the breadth of the search condition, which authorizes a

        search for any suspected violation of the conditions of supervision. One of Jackson’s

        conditions, for example, requires that he “answer truthfully” questions asked by his

        probation officer. J.A. 125. So if his probation officer suspected that Jackson lied to her,

        that would justify a search of his property, person, and papers—no matter how untethered

        the search is to the substance of the alleged lie.

               To its credit, the district court announced its expectation that the condition would

        be applied in a way “that connects the suspicious circumstances to a particular violation.”

        J.A. 114–15. But the condition itself admits of no such limitation.

               In contrast, the district court provided a thorough explanation for Jackson’s

        imprisonment sentence. It carefully discussed the PSR and advisory guidelines, heard the

        parties’ arguments for sentencing, and addressed the § 3553(a) factors.            But this

        explanation didn’t extend to the search condition.



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               In prior cases, we’ve looked at the structure and content of the district court’s

        sentencing explanation to determine whether it addressed the special conditions. Compare

        McMiller, 

 (finding that the sentencing explanation didn’t apply to the

        special conditions when the district court referred only to the imprisonment term when

        conducting its § 3553(a) analysis and “made no attempt to link its explanation . . . with the

        term or conditions of supervised release”), with United States v. Williams, 

        (4th Cir. 2021) (finding that the sentencing explanation applied to the special conditions

        when the district court announced the entire sentence—imprisonment, supervised release,

        and special conditions—and then conducted its § 3553(a) analysis).

               Here, the district court conducted its § 3553(a) analysis and imposed Jackson’s

        prison sentence before addressing the special conditions. Consistent with that approach,

        the court adopted the PSR and addendum after resolving Jackson’s factual and guidelines-

        based objections, but before addressing his objections to the conditions of supervision. It’s

        thus unclear whether the district court’s adoption of the PSR encompassed the Report’s

        explanation for the search condition.

               In any event, the PSR’s justification for the condition is itself insufficient. In

        response to Jackson’s initial objections, the PSR stated that the condition was a mandatory

        condition of release. But the district court couldn’t circumvent its duty to impose tailored

        conditions by relying on a standing order that imposes standard conditions. 2 See McMiller,


               2
                 The PSR’s response was also factually wrong, as the search condition isn’t
        mandated by Form 245B. See Admin. Off. of the U.S. Cts., AO 254B (2019),
        https://www.uscourts.gov/sites/default/files/ao245b.pdf [https://perma.cc/8DSV-WSRB].

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        954 F.3d at 676–77; see also Boyd, 

 (“[T]he question is whether the specifics

        of a defendant’s case justify a condition’s inclusion, rather than its exclusion. To that end,

        a court’s wholesale adoption of a menu of standard conditions adds little to the adequacy

        of its explanation.”).

               And the district court didn’t say whether it agreed with the PSR’s original

        justification for the condition nor explain whether that justification outweighed Jackson’s

        objections. Cf. United States v. Dacosta, 

, 153–54 (4th Cir. 2019) (per

        curiam).

               In sum, there may be sound reasons for imposing a broad search condition on a

        defendant in Jackson’s circumstances. But “[w]e cannot assume that a sentencing court

        truly considered the parties’ nonfrivolous arguments or the defendant’s individual

        characteristics when the record fails to make it patently obvious.” Provance, 

 (cleaned up). The record fails to do so here.



                                                     III.

               Because the district court didn’t adequately explain the search condition, we can’t

        assess whether it complies with § 3583(d). We therefore vacate the search condition and

        remand for resentencing.



                                                                     VACATED AND REMANDED




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