United States v. Nelson
U.S. Court of Appeals for the Fifth Circuit
United States v. Nelson, 114 F.4th 478 (5th Cir. 2024)
United States v. Nelson
Opinion
Case: 23-50449 Document: 62-1 Page: 1 Date Filed: 09/06/2024
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 23-50449
FILED
September 6, 2024
____________
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Christopher Dallas Nelson,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:22-CR-154-1
______________________________
Before Richman, Chief Judge, and Oldham and Ramirez, Circuit
Judges.
Per Curiam:
Christopher Dallas Nelson pleaded guilty to one count of possession
of visual depictions of sexual activities by minors in violation of 18 U.S.C.
§ 2252A(a)(5)(B). Nelson appeals his sentence, including the terms of his
supervised release. We affirm in part, vacate in part, and remand in part.
I.
Nelson pleaded guilty to one count of possession of child
pornography. The Presentence Investigation Report (“PSR”) revealed
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No. 23-50449
Nelson possessed a total of 3,699 images, including 196 images of Nelson’s
seven-year-old daughter and 25 images of his five-year-old daughter. Nelson
admitted he downloaded child pornography and took the images of his older
daughter. Nelson refused to admit he produced images of his younger
daughter, including images of sexual contact. He also attempted to obstruct
justice by hiding a laptop and a cellphone containing evidence of his crimes.
Nelson’s total offense level under the U.S. Sentencing Guidelines was 43.
Nelson filed a series of written and oral objections to the PSR.
The district court orally sentenced Nelson to 240 months in prison, a
$250,000 fine, additional restitution and special assessments totaling
$10,100, and supervised release for life. The court imposed mandatory and
standard conditions of supervised release outlined “in the standing order of
November 2016.” ROA.100. The district court then added discretionary
special conditions barring Nelson’s access to the Internet. Nelson objected
to the special conditions. The court’s written judgment contained less severe
versions of the Internet-related special conditions. Nelson timely appealed.
II.
Nelson raises three issues on appeal. First, he claims the district court
abused its discretion in denying him a sentencing reduction for acceptance of
responsibility. Second, he contends that the written judgment conflicts with
the sentence orally imposed by the district court in Nelson’s presence.
Finally, he argues the orally pronounced special conditions banning his use
of the Internet constitute an abuse of discretion because they are not narrowly
tailored and imposed a greater deprivation of liberty than reasonably
necessary. We address each issue in turn.
First, the district court did not abuse its discretion in denying Nelson
a sentencing reduction for acceptance of responsibility. We review the
district court’s responsibility-reduction denial under “a standard even more
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deferential than a pure clearly erroneous standard.” United States v. Najera,
915 F.3d 997, 1002(5th Cir. 2019) (quotation omitted). We reverse such a denial only if it is “without foundation.” United States v. Juarez-Duarte,513 F.3d 204, 211
(5th Cir. 2008). To be eligible for this reduction, a defendant must “clearly demonstrat[e] acceptance of responsibility for the offense.”Id.
(citing U.S.S.G. § 3E1.1). “Ordinarily, conduct that results in an
enhancement for obstruction of justice under [U.S.S.G.] § 3C1.1 ‘indicates
that the defendant has not accepted responsibility for his criminal conduct.’”
Id. (quoting U.S.S.G. § 3E1.1 cmt. n.4.). Here, Nelson’s sentence included
an enhancement for obstruction of justice, so we cannot say the denial was
“without foundation.” We therefore affirm the denial.
Next, Nelson contends his written judgment did not conform to the
district court’s oral pronouncement. It is well-settled in our circuit that when
a district court’s oral and written judgment conflict, the oral judgment
controls. United States v. Diggles, 957 F.3d 551, 557(5th Cir. 2020) (en banc) (“If the in-court pronouncement differs from the judgment that later issues, what the judge said at sentencing controls.”). A conflict arises when the written judgment “broadens the restrictions or requirements . . . from an oral pronouncement” or when the mismatch between the two judgments is more than “merely an ambiguity” and cannot be resolved by “look[ing] to the intent of the sentencing court, as evidenced in the record . . . .” See United States v. Baez-Adriano,74 F.4th 292, 302
(5th Cir. 2023) (quotation omitted).
At sentencing in this case, the district court orally pronounced its
decision to restrict Nelson’s Internet access for life and without exception.
The district court several times repeated, “I’m not going to at this time allow
you to ever access a computer as a term of your supervised release,” “[a]s
far as I’m concerned, you will never use a computer or a phone, anything that
has images on it or accesses the Internet,” and “you will not have access to a
computer.” ROA.113–14. But the written judgment mirrors the PSR’s
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language. It outlines less restrictive special conditions, allowing Nelson to
access and use the Internet “for reasons approved in advance by the
probation officer.” ROA.49, 141. We have repeatedly held, however, that the
oral pronouncement controls over the written judgment. See Diggles, 957
F.3d at 557; cf. United States v. Griffin,2022 WL 17175592
, at *4–*7 (5th Cir.
2022) (Oldham, J., dissenting) (criticizing that result). So we are bound to so
hold again today.
Finally, looking only to the oral pronouncement, the district court
abused its discretion by imposing special conditions that prevent Nelson
from using the Internet. District courts have “wide, but not unfettered,
discretion in imposing terms and conditions of supervised release.” United
States v. Duke, 788 F.3d 392, 398(5th Cir. 2015). Discretionary special conditions of supervised release must satisfy two criteria: First, they “must be ‘reasonably related’ to one of four [18 U.S.C. § 3553
(a)(1)–(2)] statutory factors: (1) the nature and characteristics of the offense and the history and characteristics of the defendant; (2) the need for deterrence of criminal conduct; (3) the need to protect the public from further crimes of the defendant; and (4) the need to provide the defendant with vocational training, medical care, or other correctional treatment.”Id.
(quoting United States v. Paul,274 F.3d 155, 165
(5th Cir. 2001)). Second, “the condition[s] must be narrowly tailored such that [they do] not involve a greater deprivation of liberty than is reasonably necessary to fulfill the purposes set forth in § 3553(a).” Id. (quotation omitted). According to Duke, lifetime Internet bans with no exception for approved uses are not “permissible conditions” because they fail the “narrowly tailored” prong of the special conditions test. Id. at 399; see also United States v. Scott,831 F.3d 562
, 571–72
(5th Cir. 2016) (holding imposition of an absolute lifetime Internet ban
constituted a plain error in sentencing after Duke).
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The special conditions here largely mirror those in Duke and Scott. So
in accordance with our rule of orderliness, we are bound to hold that the
district court abused its discretion by failing to narrowly tailor the Internet-
restricting special conditions.
We therefore AFFIRM Nelson’s sentence as to all but the special
conditions of supervised release. We VACATE the Internet-related special
conditions and REMAND for further proceedings.
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Andrew S. Oldham, Circuit Judge, concurring:
I agree with the majority’s application of our precedents to this case.
I write separately to express concern about those precedents, however. We
have defined total internet bans as per se unreasonable conditions on
supervised release. That was wrong, as this case illustrates.
I
Nelson’s crimes were horrific. Nelson possessed—among other
atrocities—the following:
• An image “of a nude minor female, posing in a bent over
position. Her body is facing away from the camera, and her
head is turned back around to face the camera. The young girl’s
buttocks, vagina and anus are prominently displayed as the
focal point of the photo.” ROA.121.
• An image “of a pubescent minor female, posing in black, white,
and red lingerie. The young girl’s underwear are pulled down
and her vagina is exposed.” ROA.122.
• At least two images “of a nude minor male. The young male is
laying on his back. His wrists and ankles are bound together,
and his mouth is gagged. The focal point of the photograph is
the boy’s buttocks area, where a foreign object has been
inserted into his anus.” ROA.122.
• “[A] two-minute video in which three nude, minor females are
engaged in oral sex, including mouth-to-mouth, mouth-to-
breast, and mouth-to-vagina.” ROA.122.
Several images also depicted Nelson’s own daughters. In one instance:
“[A]gents discovered images clearly showing a child’s hand(s)
touching the defendant’s penis and other images show the
defendant placing his penis near the victim’s female sex organ
and other images show the defendant apparently masturbating
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while the child victim’s buttocks is exposed. These images
were attributed the defendant’s 5-year-old daughter.”
ROA.125.
For reasons that are not immediately obvious, the Government chose
to charge Nelson with only one count of possession of child pornography. See
ante, at 1. The district court (correctly) gave Nelson the statutory maximum,
20 years in prison, for that one count. And the court (correctly) gave Nelson
a lifetime supervised-release term.
When Nelson gets out of prison, he will face a host of restrictions
imposed by the Texas Legislature and Congress. He will most likely never
vote again. See Tex. Elec. Code § 13.001(a)(4) (conditioning voter
eligibility on the full discharge of a sentence, including supervision). He will
never legally possess a firearm. See 18 U.S.C. § 922(g)(1). He will have to register as a sex offender, with all the movement, location, and activity restrictions that label entails, see34 U.S.C. § 20913
, and he will have to allow
probation officers to search his home any time they have a “reasonable basis”
to do so, ROA.114–15.
II
Congress also empowered the district court, in its discretion, to
impose conditions on Nelson’s supervised release. See 18 U.S.C. § 3583(d).
Section 3583(d) allows the district court to impose any supervised-release
condition that:
(1) is reasonably related to the [sentencing] factors set forth in
section 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D);
(2) involves no greater deprivation of liberty than is reasonably
necessary for the purposes set forth in section 3553(a)(2)(B),
(a)(2)(C), and (a)(2)(D); and
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(3) is consistent with any pertinent policy statements issued by
the Sentencing Commission pursuant to 28 U.S.C. 994(a).
Ibid.1 As § 3583(d)’s text makes clear, district courts have “wide discretion in imposing terms and conditions of supervised release.” United States v. Caravayo,809 F.3d 269, 276
(5th Cir. 2015) (per curiam) (quotation omitted). They have used that discretion to impose a whole host of different, case-specific discretionary conditions on supervised release. In United States v. Duke,788 F.3d 392
(5th Cir. 2015), however, we held that one thing a
district court can never do under § 3583(d) is impose a categorical internet
ban.
I see at least three problems with Duke. First, it is internally
contradictory. Section 3583(d)(2) requires a district court to narrowly tailor
its supervised release conditions. Congress vested that discretion in district
courts because Congress trusted district courts to supply the requisite
tailoring on a case-by-case basis, as the facts and circumstances required. In
Duke, however, we took away the discretion Congress vested on the rationale
that “unconditional, lifetime ban[s are] the antithesis of a narrowly tailored
sanction.” 788 F.3d at 399 (quotations omitted). That is, in the name of
narrow tailoring, and for fear of overbroad remedies, we created our own
overbroad remedy that is the antithesis of narrow tailoring—we took away
the district courts’ discretion vested by § 3583(d).
Second, Nelson’s crimes demonstrate exactly how a total internet ban
could be reasonably related to a defendant’s crime and as narrow as possible
to protect the public—indeed, to protect children—from future harm.
Nelson’s crimes revolved around his use of the internet. So there can be no
_____________________
1
Section 3583(d) contains certain other restrictions on supervised release, none of
which is relevant here.
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question about the relatedness of the sentence. And the district court’s
lifetime ban on Nelson’s internet use is narrowly tailored to promote one of
the enumerated goals—public protection—without restricting more liberty
than necessary. Simply put, there is no way to guarantee that Nelson will not
engage in producing, buying, or selling child pornography if he has any access
to the internet. Even the so-called “innocent purposes” outlined in Duke—
“paying a bill online, taking online classes, or video chatting and emailing
with his family”—create gaps for potential harm. Duke, 788 F.3d at 400; see also Packingham v. North Carolina,582 U.S. 98
, 111–12 (2017) (Alito, J.,
concurring in the judgment). For example, Nelson could use online banking
to finance his criminal sales and purchases. Nelson could use online
communications to arrange the transfer of images, even if the images
themselves were blocked. And, perhaps most importantly, seemingly
innocent internet uses—like email—could provide Nelson access to his
children, the very victims of his crimes. Even with monitoring software and
other protections, so long as Nelson has internet access in some capacity,
there will be some threat of future crime. And all of these are circumstances
that district courts should be able to consider in fashioning supervised-release
conditions under § 3583(d).
Third, it is true but irrelevant that “computers and the internet have
become significant and ordinary components of modern life as we know it.”
Duke, 788 F.3d at 400 (quotation omitted). There are plenty of modern
conveniences that felons sacrifice when they go to jail or serve supervised-
release terms. In fact, there are plenty of constitutional rights that felons must
sacrifice—sometimes for life. For example:
• The right to vote has been described as “fundamental.” Harper
v. Va. State Bd. Of Elections, 383 U.S. 663, 670 (1966). But
Nelson forfeited that right by engaging in this criminal conduct.
See Tex. Elec. Code § 13.001(a)(4); see also Richardson v.
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Ramirez, 418 U.S. 24 (1974) (upholding such restrictions
against constitutional challenge).
• The home is “the most private and inviolate . . . of all the places
and things the Fourth Amendment protects.” Florida v.
Jardines, 569 U.S. 1, 13 (2013) (Kagan, J., concurring); see also
Payton v. New York, 445 U.S. 573, 585 (1980) (“[P]hysical entry
of the home is the chief evil against which the wording of the
Fourth Amendment is directed.” (citation omitted)). But
Nelson’s sentence gives probation officers “unmitigated
access” to his home, provided the officers have just a
“reasonable basis” to search the residence. ROA.114–15; see
also United States v. Knights, 534 U.S. 112 (2001) (upholding
such a condition imposed upon a probationer against
constitutional challenge); Samson v. California, 547 U.S. 843,
850 (2006) (upholding suspicionless search of parolee against
constitutional challenge while noting that “parolees have fewer
expectations of privacy”); United States v. Winding, 817 F.3d
910, 916 (5th Cir. 2016) (“Supervised release is akin to
parole.”).
• Nelson’s right to possess a firearm is constitutionally
protected. See U.S. Const. amend. II. But the U.S. Code
itself circumscribes that right for all felons. See 18 U.S.C.
§ 922(g)(1). And that prohibition is “presumptively lawful.”
District of Columbia v. Heller, 554 U.S. 570, 627 n.26 (2008); see
also McDonald v. City of Chicago, 561 U.S. 742, 786 (2010)
(explaining Heller “did not cast doubt on such longstanding
regulatory measures as ‘prohibitions on the possession of
firearms by felons’” (quoting Heller, 554 U.S. at 626–27)); see
also United States v. Williams, No. 23-6115, 2024 WL 3912894
(6th Cir. Aug. 23, 2024) (Thapar, J.) (holding § 922(g)(1)
facially constitutional).
• The right to travel supposedly “belong[s], of right, to the
citizens of all free governments.” Corfield v. Coryell, 6 F. Cas.
546, 551–52 (C.C.E.D. Pa. 1823) (Washington, J.) (No. 3,230);
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see also Saenz v. Roe, 526 U.S. 489, 500–01 & n.14 (1999)
(calling the right to travel “fundamental” on authority of
Corfield v. Coryell). Yet the Sex Offender Registration and
Notification Act imposes severe restrictions on that right. See
18 U.S.C. § 2250 (failure to register travel); see also United
States v. Byrd, 419 Fed. App’x 485, 491–92 (5th Cir. 2011)
(upholding this provision against constitutional challenge).
All of these burden “significant and ordinary components of modern
life as we know it.” Duke, 788 F.3d at 400 (citation omitted). But none of
them—save Nelson’s right to access the very internet he used to prey on
minors—is categorically beyond the reach of supervised release.
III
The Supreme Court’s decision in Packingham is not to the contrary.
In that case, the Supreme Court held the First Amendment prohibited North
Carolina from making “it a felony for a registered sex offender” to access
“social media websites.” Packingham, 582 U.S. at 101. True, the State had a significant governmental interest in protecting children and other victims of sex abuse. Seeid. at 106
. But the law failed narrow tailoring because North Carolina enacted “a prohibition unprecedented in the scope of First Amendment speech it burdens.”Id. at 107
. “[T]o foreclose access to social media altogether [was] to prevent the user from engaging in the legitimate exercise of First Amendment rights.”Id. at 108
. The State could not, therefore, “enact this complete bar to the exercise of First Amendment rights on websites integral to the fabric of our modern society and culture.”Id. at 109
.
Packingham is distinguishable for three principal reasons. First, a
restriction imposed on a single individual at sentencing is much more
narrowly tailored than a general law like the one in Packingham. North
Carolina’s law forbade all registered sex offenders from accessing social
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media. See N.C. Gen. Stat. Ann. § 14-202.5(a) (2009). That included “about 20,000 people in North Carolina,” over 1,000 of whom the State had prosecuted. Packingham,582 U.S. at 102
. A supervised-release condition on
internet use, by contrast, applies to precisely one person. In other words, just
because North Carolina’s off-the-rack, one-size-fits-all law failed narrow
tailoring does not even suggest that a bespoke sentence tailored to one
pedophile must too.
Second, Packingham itself cajoled courts to “exercise extreme
caution” before rendering sweeping pronouncements concerning the
interplay between the First Amendment and the internet. Id. at 105. And the Court acknowledged that its holding regarding the North Carolina law should not be read to invalidate all internet restrictions upon pedophiles. Seeid. at 107
. Thus, Packingham cannot be mechanically applied to supervised-release
conditions.
Third, the governmental interests at issue in supervised release and in
Packingham are different. The law in Packingham imposed a forward-looking
criminal restriction on people who had already served their sentences. The
Court thus emphasized “the troubling fact that the law imposes severe
restrictions on persons who already have served their sentence and are no
longer subject to the supervision of the criminal justice system . . . .” Ibid.Supervised release, by contrast, is part of the pedophile’s sentence and is part of the punishment the Government can impose for Nelson’s heinous crimes. Cf.id. at 106
(“[S]exual abuse of a child is a most serious crime and an act
repugnant to the moral instincts of a decent people.” (citation omitted)).
Thus, supervised release implicates the government’s retributive interests in
ways that Packingham did not.
* * *
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Imagine that instead of using a computer and an internet connection
to victimize his own children and destroy their lives, Nelson instead used a
gun to execute them. Would anyone say the Constitution facially prohibits all
lifetime bans on all felons, including child murderers? Obviously not. See, e.g.,
United States v. Canada, 103 F.4th 257, 258(4th Cir. 2024) (holding § 922(g)(1) is constitutional at least as applied to those convicted of a “drive- by-shooting, carjacking, armed bank robbery, or even assassinating the President of the United States”). Even the Ninth Circuit panel that found constitutional problems with some applications of § 922(g)(1) nonetheless also found the statute could be applied to those who committed traditional, violent felonies. United States v. Duarte,101 F.4th 657
, 689–90 (9th Cir. 2024), vacated & reh’g en banc granted,108 F.4th 786
(9th Cir. 2024); see also United States v. Price,111 F.4th 392, 413
(4th Cir. 2024) (Agee, J., concurring
in the judgment) (“[N]o federal court has accepted the extraordinary claim
that § 922(g)(1) is . . . unconstitutional in all its applications.”). Thus, even
the most zealous skeptics of gun bans recognize the Constitution allows at
least some of them.
So too with lifetime internet bans. For Duke to be wrong, there just
needs to be one individual in this vast, populous Nation who merits a lifetime
internet ban. And there is at least one: Christopher Dallas Nelson. Unlike a
firearm ban (which would leave Nelson with virtually no Second Amendment
freedoms), an internet ban would leave Nelson with all the First Amendment
freedoms of someone alive in the 1970s: He could visit the local library, go to
church, read Marx, watch Kurosawa, listen to Bach, discuss Hinduism, study
Arabic, write about the French Revolution, &c. But like a firearm ban, an
internet ban would take from him the weapon he used to hurt children. The
fact that other internet bans imposed on other people in other circumstances
might be overbroad is of no moment. That is because § 3583(d) allowed this
district judge to impose this ban on this man. Duke should be overruled.
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Priscilla Richman, Chief Judge, concurring in part and dissenting in
part:
I agree that the district court did not abuse its discretion by denying
Nelson a sentencing reduction for acceptance of responsibility. I disagree
that there is a conflict between the written judgment and the oral
pronouncement with respect to the restrictions on Nelson’s Internet use.
When a term of the district court’s written judgment “conflicts with
the oral sentence, the oral sentence controls.” 1 But, to invoke that rule, there
must be a genuine conflict between the oral sentence and the written
judgment. 2 A conflict exists only when the written judgment “broadens the
restrictions or requirements of supervised release from an oral
pronouncement,” 3 or imposes conditions “more burdensome” than the oral
pronouncement. 4
As the majority opinion recognizes, the written judgment’s restriction
on Nelson’s Internet use was “less severe” than the oral pronouncement’s. 5
The oral pronouncement prohibited Nelson from using any device capable of
_____________________
1
United States v. Baez-Adriano, 74 F.4th 292, 302(5th Cir. 2023) (citing United States v. Diggles,957 F.3d 551, 557
(5th Cir. 2020) (en banc)).
2
See, e.g., id. at 303.
3
Id. at 303 (emphasis added) (quoting United States v. Mireles, 471 F.3d 551, 558(5th Cir. 2006)); accord United States v. Woods,102 F.4th 760, 767
(5th Cir. 2024); United States v. Pelayo-Zamarripa,81 F.4th 456, 460
(5th Cir. 2023); United States v. Prado,53 F.4th 316, 318
(5th Cir. 2022); United States v. Bigelow,462 F.3d 378, 383-84
(5th Cir.
2006).
4
Woods, 102 F.4th at 767.
5
Ante at [2] (emphasis added).
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accessing the Internet, while the written judgment permits Internet access
with advance parole-officer approval. 6
The reasoning in an unpublished decision, United States v. De Leon, is
persuasive. 7 There, the district court ordered defendant De Leon to pay
restitution in its oral pronouncement. 8 The written judgment imposed joint-
and-several liability with other defendants, even though the district court had
not orally pronounced joint and several liability. 9 We reasoned that “the
inclusion of joint-and-several[ ]liability neither broaden[ed] the burden of the
condition of supervised release nor impose[d] a more burdensome
requirement” because “De Leon could only benefit from the shared liability
included in the written judgment.” 10 We therefore held that there was no
conflict. 11
The same result should obtain here. The written judgment’s less
severe restriction on Nelson’s Internet use only benefitted Nelson. The
written judgment did not “broaden[] the restrictions or requirements of
supervised release” 12 or “impos[e] a more burdensome requirement.” 13
Accordingly, there is no conflict. Because I would affirm, I respectfully
dissent.
_____________________
6
Compare ROA.113 (oral pronouncement), with ROA.49 (written judgment).
7
No. 22-40301, 2024 WL 140439 (5th Cir. Jan. 12, 2024) (per curiam)
(unpublished).
8
Id. at *1.
9
Id. at *4.
10
Id. at *5.
11
Id. at *4-*5.
12
United States v. Mireles, 471 F.3d 551, 558 (5th Cir. 2006).
13
United States v. Bigelow, 462 F.3d 378, 383 (5th Cir. 2006).
15
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