“[T]he ability of a defendant to modify a special condition is only one factor considered as we determine whether to exercise our discretion.”
How later courts described this case
- “[T]he ability of a defendant to modify a special condition is only one factor considered as we determine whether to exercise our discretion.”
- affirming an absolute, three-year ban on computer and Internet access
- affirming an absolute, five-year ban on Internet access
- “[O]ur case law requires that Internet bans be narrowly tailored either by scope or by duration.”
Written by the judges who cited it.
The opinion
Case: 19-50447 Document: 00515610040 Page: 1 Date Filed: 10/21/2020
REVISED
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
October 6, 2020
No. 19-50447 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Carlos Saul Becerra,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:18-CR-2541-1
Before King, Stewart, and Southwick, Circuit Judges.
Per Curiam:
Defendant, who pled guilty to child-pornography charges, appeals the
district court’s imposition of special conditions of supervised release that
prevent him from using the Internet, computers, and other electronic devices
for the ten years following his initial sentence of 151 months. For the reasons
stated herein, we VACATE those special conditions and REMAND to the
district court for resentencing proceedings consistent with this opinion.
Case: 19-50447 Document: 00515610040 Page: 2 Date Filed: 10/21/2020
No. 19-50447
I.
In April 2018, FBI agents conducting an online investigation into child
pornography identified an Internet Protocol (“IP”) address sharing child
pornography. The agents traced the IP address to defendant, Carlos Saul
Becerra. Three months later, agents executed a search warrant at Becerra’s
residence and discovered several electronic devices, including laptop
computers, mobile phones, and external hard drives. Becerra admitted to
agents that the electronic devices belonged to him and that they would find
child pornography downloaded onto the devices. Agents conducted a
forensic examination of the devices seized from Becerra’s residence and
identified 11,205 photographs and 538 videos containing child pornography.
Becerra had been involved in downloading child pornography for more than
four years.
On January 17, 2019, Becerra pled guilty to receipt and distribution of
a visual depiction involving the sexual exploitation of a minor, in violation of
18 U.S.C. §§ 2252(a)(2) and (b)(1), and to possession of a visual depiction
involving sexual exploitation of a minor under 12 years of age, in violation of
18 U.S.C. §§ 2252(a)(4)(B) and (b)(2). Following his guilty plea, a probation
officer prepared a presentence investigation report (“PSR”). The PSR
calculated a total offense level of 32. That total offense level, paired with
Becerra’s criminal history, resulted in an advisory sentencing range of 151
months to 188 months’ imprisonment. The PSR further recommended
various special conditions of supervised release. In relevant part, the PSR
recommended that “[t]he defendant shall not possess and/or use computers
(as defined in 18 U.S.C. § 1030(e)(1)) or other electronic communications or
data storage devices or media,” and “[t]he defendant 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
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No. 19-50447
crimes, and to support any of the recommendations made by the therapist
during Becerra’s sex offender treatment.”
Becerra did not object to the PSR at his sentencing hearing. The
district court sentenced Becerra to concurrent terms of 151 months’
imprisonment, to be followed by ten years’ supervised release. As part of
Becerra’s supervised release, the district court imposed, inter alia, the above-
referenced special conditions. Becerra did not object to these conditions of
supervised release at sentencing and now appeals.
II.
When a defendant “[does] not object to th[e] condition of his
supervised release at sentencing, [the court] review[s] for plain error.”
United States v. Halverson, 897 F.3d 645, 657 (5th Cir. 2018) (citing United
States v. Duque–Hernandez, 710 F.3d 296, 298 (5th Cir. 2013)). To establish
plain error, there must be (1) “a legal error or defect that has not been
intentionally abandoned”; (2) that is “clear or obvious, rather than subject
to reasonable dispute”; (3) that “affect[s] the appellant’s substantial rights,
which means that the appellant must show that the error affected the
outcome of the district court proceedings”; and (4) that “seriously affects
the fairness, integrity, or public reputation of judicial proceedings.” Id. The
appellant “bears the burden as to each of these four [elements].” United
States v. Huor, 852 F.3d 392, 398 (5th Cir. 2017).
We review conditions of supervised release in two steps. United States
v. Scott, 821 F.3d 562, 567 (5th Cir. 2016). First, we must “ensure that the
district court committed no significant procedural error,” such as “failing to
adequately explain the chosen sentence.” Gall v. United States, 552 U.S. 38,
51 (2007). Second, we consider “the substantive reasonableness of the
sentence imposed.” Id.
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“A district court has 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). That discretion is statutorily limited in two ways.
First, a condition of supervised release must be “reasonably related,” 18
U.S.C. § 3583(d)(1), to one of four factors provided in 18 U.S.C. § 3553(a). 1
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 purposes set forth in § 3553(a).” Duke, 788 F.3d at 398 (quoting United
States v. Rodriguez, 558 F.3d 408, 412 (5th Cir. 2009)); see also 18 U.S.C. §
3583(d)(2). 2
On appeal, Becerra challenges both the procedural and substantive
reasonableness of his conditions of supervised release, arguing that the
district court failed to explain the reasons for imposing the conditions and
that the conditions are overbroad.
III.
We start by addressing whether the district court “committed [a]
significant procedural error.” Gall, 552 U.S. at 51. According to Becerra, the
district court erred by failing to explain its reasons for imposing the computer
and Internet conditions of supervised release. The Government responds
1
The four factors are: (1) “the nature and characteristics of the offense and the
history and characteristics of the defendant,” (2) “the deterrence of criminal conduct,”
(3) “the protection of the public from further crimes of the defendant,” and (4) “the
provision of needed educational or vocational training, medical care, or other correctional
treatment to the defendant.” United States v. Clark, 784 F. App’x 190, 193 (5th Cir. 2019),
cert. denied, 140 S. Ct. 881, 205 L. Ed. 2d 490 (2020) (citing United States v. Weatherton,
567 F.3d 149, 153 (5th Cir. 2009)).
2
Though not relevant to Becerra’s appeal, conditions of supervised release must
also be “consistent with any pertinent policy statements issued by the Sentencing
Commission.” 18 U.S.C. § 3583(d)(3).
4
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No. 19-50447
that the record contains sufficient evidence to support the district court’s
imposition of the conditions.
Where the district court fails to adequately explain its reasons for
imposing a special condition, we “may still affirm a special condition if we
can infer the district court’s reasoning after an examination of the record.”
United States v. Alvarez, 880 F.3d 236, 240 (5th Cir. 2018) (citing United
States v. Caravayo, 809 F.3d 269, 275 (5th Cir. 2015)). In this case, the district
court provided only a brief explanation for the imposition of the special
conditions at sentencing, in its judgment, and in its Statement of Reasons.
However, the PSR—which the district court incorporated in its Statement of
Reasons—did state that the 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.” Considering the PSR’s
explanation and the fact that Becerra used computers and the Internet in the
commission of his offenses, we can infer the district court’s rationale for
imposing special conditions restricting his computer and Internet use.
Accordingly, we find no procedural error.
IV.
Becerra also challenges “the substantive reasonableness of the
sentence imposed.” Gall, 552 U.S. at 51. Becerra argues that the special
conditions of supervised release banning his computer and Internet use are
overbroad because they were made unconditional. He contends that we have
previously upheld such absolute restrictions only where they are limited in
duration.
A.
First, we consider whether the district court erred in imposing
absolute ten-year bans on computer and Internet use. See United States v.
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Olano, 507 U.S. 725, 732 (1993). We have rejected the idea that “an absolute
prohibition on accessing computers or the Internet is per se an unacceptable
condition of supervised release.” United States v. Paul, 274 F.3d 155, 169–70
(5th Cir. 2001). Such absolute bans, however, have been affirmed only for
limited durations such as three or five years. See id. (affirming an absolute,
three-year ban on computer and Internet access); United States v. Rath, 614
F. App’x 188, 189 (5th Cir. 2015) (affirming an absolute, five-year ban on
Internet access). We have rejected such bans where they effectively preclude
a defendant “from meaningfully participating in modern society” for long
periods of time. Duke, 788 F.3d at 400.
To that end, this court requires conditions restricting the use of
computers and the Internet to be “narrowly tailored either by scope or by
duration.” Id. at 399. Where the duration of such restrictions is not narrowly
tailored, the “scope” may be narrowed by permitting access when the
defendant obtains the prior approval of the probation officer or the court. See
United States v. Miller, 665 F.3d 114, 126 (5th Cir. 2011). However, even such
prior approval requirements must generally be applied in such a way as to
give defendants meaningful access to computers or the Internet. See, e.g.,
Sealed Juvenile, 781 F.3d at 756–57 (5th Cir. 2015) (holding that a
requirement of prior approval “is not to be construed or enforced in such a
manner that the [defendant] would be required to seek prior written approval
every single time he must use a computer or access the Internet.”). We have
therefore found plain error in a conditional ban extended over ten years
where the prior-approval requirement was strictly applied such that the
defendant was required to get approval every time he sought to use a computer
or access the Internet. Clark, 784 F. App’x at 193–94.
In this case, the district court erred by imposing restrictions on
computer and Internet use that were not “narrowly tailored either by scope
or by duration.” Duke, 788 F.3d at 399. The ten-year bans in this case are
6
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absolute and would not even begin until after a 151-month term of
imprisonment. We have repeatedly emphasized that “access to computers
and the Internet is essential to functioning in today’s society.” Sealed
Juvenile, 781 F.3d at 756; see also Duke, 788 F.3d at 400. The essential
function of computers and the Internet in society will likely only increase over
the twelve and a half years of Becerra’s sentence—as will the corresponding
burden of the special conditions. See United States v. Perazza-Mercado, 553
F.3d 65, 73 (1st Cir. 2009) (“Our concerns about [an] unqualified prohibition
of home internet use are even more salient because the conditions . . . will
only take effect . . . after the completion of [the] prison sentence. The
importance of the internet in modern life has steadily increased over time,
and we have no reason to believe that this trend will end.”). The district
court’s special conditions should have been narrowed in their scope by, for
example, permitting access with prior approval of Becerra’s probation officer
or the district court.
We therefore find that the district court erred in imposing conditions
of supervised release that fail to ensure no greater deprivation of liberty than
is reasonably necessary. See 18 U.S.C. § 3583(d)(2).
B.
Next, we turn to whether the district court’s error was plain. The
Government contends that any error was not plain because there is no Fifth
Circuit case directly on point. Becerra responds that we have previously
“addressed unclear or prohibitive computer and internet restrictions.”
To determine whether an error is plain, we “look to the state of the
law at the time of appeal, and . . . decide whether controlling circuit or
Supreme Court precedent has reached the issue in question, or whether the
legal question would be subject to reasonable dispute.” United States v.
Fields, 777 F.3d 799, 802 (5th Cir. 2015) (quotation omitted). Our existing
7
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precedent clearly establishes that bans on computer and Internet use
imposed for long durations of time must be narrowly tailored in terms of their
scope. See Duke, 788 F.3d at 399 (“[O]ur case law requires that Internet bans
be narrowly tailored either by scope or by duration.”). Accordingly, where
restrictions on computer and Internet use have been affirmed for long
durations, the special conditions were “not absolute.” Miller, 665 F.3d at 127
(affirming conditional bans imposed for twenty-five years). Absolute bans
extended over ten years violate this precedent. Cf. Clark, 784 F. App’x at
193–94 (finding plain error in ten-year conditional ban where defendant was
required to get prior approval every time he sought to use a computer or
access the Internet).
Based on the foregoing, we conclude that the district court’s error in
imposing absolute, ten-year bans on Becerra’s computer and Internet use, to
begin after Becerra serves his 151-month sentence, was plain.
C.
To satisfy the third prong of plain error review, Becerra must show
that the error affected his substantial rights. United States v. Mondragon-
Santiago, 564 F.3d 357, 364 (5th Cir. 2009). An error affects a party’s
substantial rights when it changes “the outcome in the district court.” Id. We
have also found that unreasonable conditions related to Internet use affect
defendants’ substantial rights because of “the ubiquity and importance of the
Internet to the modern world.” Clark, 784 F. App’x at 194 (quoting Duke,
788 F.3d at 400); see also United States v. Herndon, 807 F. App’x 286, 291
(5th Cir. 2020) (same).
In this case, considering the importance of the Internet in
contemporary society, we conclude that the district court’s conditions
restricting Becerra’s computer and Internet use affect his substantial rights.
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D.
Finally, we must determine whether the error “seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings” such that we
should exercise our remedial discretion. Olano, 507 U.S. at 736 (quoting
United States v. Atkinson, 297 U.S. 157, 160 (1936)). The Government argues
that we should decline to exercise our discretion to vacate the conditions of
supervised release because Becerra has not met his stringent burden of proof
on this prong; he failed to object to the condition during sentencing; and the
conditions are modifiable.
In analyzing this final prong of plain error review, “we look to ‘the
degree of the error and the particular facts of the case’ to determine whether
to exercise our discretion.” United States v. Avalos–Martinez, 700 F.3d 148,
154 (5th Cir. 2012) (quoting United States v. Davis, 602 F.3d 643, 651 (5th
Cir. 2010)). The Supreme Court recently advised that an error in sentencing
is “precisely the type of error that ordinarily warrants relief.” Rosales-Mireles
v. United States, 138 S. Ct. 1897, 1905 (2018); see Herndon, 807 F. App’x at
291 (applying Rosales-Mireles to conditions of supervised release). In
particular, because such errors are “judicial errors,” correction is favored.
Herndon, 807 F. App’x at 291.
As to the Government’s argument that the conditions could be
modified, the Fifth Circuit has held that “a defendant faces an uphill battle”
in asking the court to exercise its discretion to vacate a modifiable condition,
but has made clear that modifiability is not dispositive of the issue. United
States v. Prieto, 801 F.3d 547, 554 (5th Cir. 2015); see also Alvarez, 880 F.3d
at 242 (“[T]he ability of a defendant to modify a special condition is only one
factor considered as we determine whether to exercise our discretion.”). We
have previously exercised our discretion to vacate improper but modifiable
conditions. See, e.g., Clark, 784 F. App’x at 194 n.2. The fact that “a
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sweeping ban on computer or internet use” may be modified in the future
“does not immunize the ban from an inquiry that evaluates the justification
for the ban in the first instance.” Duke, 788 F.3d at 401 (quoting United States
v. Ramos, 763 F.3d 45, 61 (1st Cir. 2014)).
Accordingly, because the district court’s error seriously affects the
fairness, integrity or public reputation of judicial proceedings, we conclude
that this case warrants an exercise of discretion to correct the error.
V.
For the foregoing reasons, we VACATE the district court’s
imposition of special conditions of supervised release barring Becerra’s use
of the Internet, computers, and other electronic devices for ten years and
REMAND for resentencing consistent with this opinion. 3
3
On remand, the district court should consider “alternative measures previously
approved by this court,” including “conditioning [Becerra’s] computer and Internet usage
on receiving prior approval from his probation officer or the district court.” Duke, 788 F.3d
at 400 n.2. However, if the district court decides to impose such a condition, “it should be
mindful not to fashion” the condition such that it would “impose ‘the heavy burden of
requiring prior written approval every time [the defendant] must use a computer or access
the Internet for . . . salutary purposes.’” Id. (quoting Sealed Juvenile, 781 F.3d at 757).
10