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Fifth Circuit: Special Conditions of Supervised Release That Barred Use of Internet, Computers, and Electronic Devices for 10 Years Not Substantively Reasonable

In 2019, Becerra pleaded guilty to two counts related to the receipt, possession, and distribution of child pornography. The PSR recommended several special conditions of supervised release, including, “[t]he defendant shall not possess and/or use computers ... or other electronic communications or data storage devices [and] ... shall not access the Internet.” These conditions were “recommended because of the nature and circumstances of the instant offense, to protect the public from further crimes, and to support any of the recommendations made by the therapist during Becerra’s sex offender treatment.”

The district court sentenced Becerra to 151 months’ imprisonment to be followed by 10 years of supervised release with the abovementioned special conditions. Becerra did not object to the PSR or to the imposition of the special conditions at the time of sentencing. Later, in its Statement of Reasons, the district court adopted the PSR. On appeal, Becerra challenged the procedural and the substantive reasonableness of his conditions of supervised release.

Because Becerra did not object, the Fifth Circuit reviewed the sentence for plain error. United States v. Halverson, 897 F.3d 645 (5th Cir. 2018). Plain error is established when there is (1) a legal error that has not been abandoned (2) that is clear or obvious rather than subject to reasonable dispute (3) which affected the appellant’s substantial rights, i.e., the error affected the outcome of the proceedings, and (4) seriously affected the fairness, integrity, or public reputation of judicial proceedings. Id.

Conditions of supervised release are reviewed for procedural error – such as failing to adequately explain the chosen sentence, Gall v. United States, 552 U.S. 38 (2007). If a district court fails to adequately explain its reasons for a special condition of supervised release, the reviewing court may still affirm the condition if the reason can be inferred from the record. United States v. Alvarez, 880 F.3d 236 (5th Cir. 2018).

Regarding substantive reasonableness, a district court’s discretion in imposing conditions of supervised release is not unfettered, United States v. Duke, 788 F.3d 392 (5th Cir. 2015), but is statutorily limited in two ways. First, the condition must be reasonably related to at least one of the following provisions of 18 U.S.C. § 3553(a): (i) the nature and characteristics of the offense and the defendant; (ii) the deterrence of criminal conduct; (iii) the protection of the public from further crimes of the defendant; or (iv) provision to the defendant of needed educational/vocational training, medical care, or other correctional treatment. United States v. Clark, 748 F. App’x 190 (5th Cir. 2019). Second, the condition “must be narrowly tailored such that it does not involve a greater deprivation of liberty than is reasonably necessary” to fulfill the provisions of 18 U.S.C. § 3553(a). Duke.

Access to computers and the Internet is essential to functioning in today’s society. Id. This essential function of computers and the Internet in society will likely only increase as time goes on. United States v. Perazza-Mercado, 553 F.3d 65 (1st Cir. 2009). Consequently, bans on Internet and computer usage for long periods of time must be narrowly tailored in terms of their scope. Duke. Absolute bans extended over 10 years are substantively unreasonable because they effectively preclude a defendant “from meaningfully participating in modern society” for long periods of time. Id. If access to Internet and computers is to be restricted for a long period of time, the scope of the restriction must be narrowed – such as permitting access when the defendant obtains the prior approval of the probation office or of the court. United States v. Miller, 665 F.3d 114 (5th Cir. 2011). Even then, the defendant cannot be required to obtain permission for each and every perfunctory use. Id.

Because the district court adopted the PSR in its Statement of Reasons and the PSR adequately explained the reasons for the special conditions, the Fifth Circuit found no procedural error. But because the district court imposed an absolute ban on Internet and computer usage for 10 years (which wasn’t to begin for another 13.5 years after Becerra served his prison term and when computers and the Internet will most likely be even more necessary), the condition was substantively unreasonable, the Court concluded.

The prior decision of Clark made the error clear. The ubiquity of the Internet and computer use meant the restriction affected Becerra’s substantial rights. And “sentencing errors” are precisely the type of “judicial errors” that affect the fairness, integrity, or public reputation of judicial proceedings. Rosales-Mireles v. United States, 138 S. Ct. 1897 (2018). Thus, the Court ruled the district court committed plain error.

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Related legal case

United States v. Becerra

 

 

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