United States v. Carmelo Etienne

USCA11 Case: 23-10266 Document: 37-1 Date Filed: 05/22/2024 Page: 1 of 27

[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-10266

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CARMELO ETIENNE,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:21-cr-20257-DPG-1

____________________

USCA11 Case: 23-10266 Document: 37-1 Date Filed: 05/22/2024 Page: 2 of 27

2 Opinion of the Court 23-10266

Before WILLIAM PRYOR, Chief Judge, and JILL PRYOR and MARCUS,

Circuit Judges.

WILLIAM PRYOR, Chief Judge:

This appeal requires us to decide whether the district court

committed reversible error when it imposed two conditions of su-

pervised release: a financial disclosure condition and a stay-away

order. In 2021, Carmelo Etienne called a federal courthouse and

threatened violence against a federal magistrate judge, a court-

room deputy, and other courthouse employees. He later pleaded

nolo contendere to threatening to assault and murder a federal mag-

istrate judge and a courtroom deputy. See 18 U.S.C. § 115(a)(1)(B).

The district court imposed a time-served sentence and three years

of supervised release. As special conditions of that release, the dis-

trict court also ordered Etienne to make financial disclosures to the

probation office; prohibited him from visiting the federal court-

houses in Fort Pierce and West Palm Beach, and the James Law-

rence King Courthouse in Miami; and prohibited him from calling

the judges’ chambers or court facilities. Etienne failed to object to

the financial disclosure condition, but he argued that the stay-away

order unduly burdened his right to access the federal courts. The

district court overruled his objection. Etienne now challenges both

conditions. Because it was not plain error to impose the financial

disclosure condition and because the stay-away order is not vague

or overbroad and does not unduly burden Etienne’s right to access

the federal courts, we affirm.

USCA11 Case: 23-10266 Document: 37-1 Date Filed: 05/22/2024 Page: 3 of 27

23-10266 Opinion of the Court 3

I. BACKGROUND

In 2018, the Florida Department of Children and Families

petitioned a state court to remove three children from Carmelo

Etienne’s home in Vero Beach, Florida. Etienne later filed a com-

plaint pro se in the district court that alleged that the removal of his

children violated his federal civil rights. 42 U.S.C. § 1983. A magis-

trate judge recommended that Etienne’s complaint be dismissed

with prejudice. The district court adopted the magistrate judge’s

recommendation.

In March 2021, Etienne placed a telephone call to the federal

courthouse in Fort Pierce, Florida. He identified himself to the

clerk who answered the phone and asked to speak to the court-

room deputy who worked for the magistrate judge who had dis-

missed his case. After being told that the courtroom deputy was

unavailable, Etienne became hostile. He said that the magistrate

judge assigned to his case “is going to get hanged.” He ranted about

people who “took the children” and said, “You f*cked up.” Etienne

made several threats, including “This is judgment day”; “I am hang-

ing everybody in the courthouse”; “I am hanging the president and

congress”; “I am the owner of all”; “I am going to show you what

bloodshed looks like”; and “I will know if you lied about [the

judge’s courtroom deputy] today, I have cameras on the court-

house.” Etienne then said, “Thank you for remaining calm,” and

before hanging up, demanded that the clerk call him back in an

hour.

USCA11 Case: 23-10266 Document: 37-1 Date Filed: 05/22/2024 Page: 4 of 27

4 Opinion of the Court 23-10266

The clerk who answered Etienne’s call reported the threat to

the United States Marshals, who determined that the call came

from a number registered to Etienne’s business. The marshals in-

terviewed Etienne about the phone call, and he admitted that the

call came from his business telephone number. The day after the

interview, Etienne called the Fort Pierce courthouse again, identi-

fied himself, and gave the email address for his business as his con-

tact. The marshals were alerted and listened to the call. Etienne re-

ferred to the magistrate judge and the courtroom deputy by name.

He told the clerk, “I had three children taken away, and I need ju-

risdiction,” and “I am the word God, I own you, I need jurisdic-

tion.” Two weeks later, Etienne was arrested on charges stemming

from his two calls.

A grand jury returned an indictment charging Etienne with

two counts. First, the indictment charged Etienne with threatening

to assault and murder a United States judge with intent to retaliate

against the judge on account of the performance of official duties.

See 18 U.S.C. § 115(a)(1)(B). Second, the indictment charged him

with threatening to assault and murder an official, the courtroom

deputy, whose murder would be a federal crime, see id. § 1114, with

intent to retaliate against the official on account of the perfor-

mance of official duties, id. § 115(a)(1)(B). Etienne pleaded nolo con-

tendere.

The probation office prepared a presentence investigation

report. Based on a total offense level of 17 and a criminal history

category of I, the probation office determined that Etienne’s

USCA11 Case: 23-10266 Document: 37-1 Date Filed: 05/22/2024 Page: 5 of 27

23-10266 Opinion of the Court 5

guideline sentencing range was 24 to 30 months of imprisonment.

The report also recommended special conditions of supervision,

including a financial disclosure condition that would require

Etienne to “provide complete access to financial information, in-

cluding disclosure of all business and personal finances, to the U.S.

Probation Officer.”

Etienne made two objections to the presentence investiga-

tion report. First, he objected that the report provided “no reduc-

tion for acceptance of responsibility.” Second, he objected to the

report’s statement that he had previous arrests for possession of

cocaine and marijuana. He did not object to any of the recom-

mended special conditions for supervision. When the district court

allowed him to speak before it imposed sentence, Etienne criticized

his attorney, the prosecutor, and the justice system.

The district court imposed a 24-month sentence and a super-

vised release term of three years with special conditions. These spe-

cial conditions included a special assessment of $200, a financial

disclosure condition, and a stay-away order. The district court or-

dered Etienne to “stay away from the federal courthouses located

in Fort Pierce and West Palm Beach, as well the King Building [in

Miami],” and ordered that Etienne “not call any judges or any court

facilities.” It explained that if Etienne needed to file something at

any of the specified courthouses, he could do it through counsel or

by mail, but not in-person. The district court also explained the pro-

hibition on calling the judge or the court facilities and that there

USCA11 Case: 23-10266 Document: 37-1 Date Filed: 05/22/2024 Page: 6 of 27

6 Opinion of the Court 23-10266

was no need to call judges because judges may not talk to litigants

by phone.

Etienne objected to the stay-away order because it could af-

fect his “ability to seek redress from the courts.” The district court

clarified that Etienne could still file requests with the court, but that

he could not do so in person at Fort Pierce, West Palm Beach, or

the King Courthouse; he would have to go to Fort Lauderdale or

another Miami courthouse. The district court explained that the

stay-away order was based on both Etienne’s underlying conduct

and his “concern[ing]” statements before the imposition of his sen-

tence. In the written judgment, the district court imposed as special

conditions of supervised release that Etienne “is prohibited from

contacting the victims and [the prosecutor on the case] or visiting

the United States Courthouses in Fort Pierce and West Palm Beach

and the James Lawrence King Courthouse in Miami while on pro-

bation/supervised release. The defendant shall not call the Judges’

Chambers or any facility.”

II. STANDARDS OF REVIEW

Two standards govern our review. We review the imposi-

tion of special conditions of supervised release for abuse of discre-

tion. United States v. Moran, 573 F.3d 1132, 1137 (11th Cir. 2009). A

district court abuses its discretion if we are left with a “definite and

firm conviction that the [district] court committed a clear error of

judgment in the conclusion it reached.” United States v. Taylor, 338

F.3d 1280, 1283 (11th Cir. 2003) (alteration in original) (citation and

USCA11 Case: 23-10266 Document: 37-1 Date Filed: 05/22/2024 Page: 7 of 27

23-10266 Opinion of the Court 7

internal quotation marks omitted). We review for plain error any

objections not raised in the district court. Moran, 573 F.3d at 1137.

III. DISCUSSION

We divide our discussion into two parts. First, we explain

that the district court did not plainly err by requiring Etienne to

provide his financial information to the probation office. Second,

we explain that the district court did not abuse its discretion by re-

quiring Etienne to stay away from certain federal courthouses and

not call the judges’ chambers or court facilities as a condition of

supervised release.

A. The Financial Disclosure Condition Was Not Plain Error.

Etienne challenges for the first time on appeal the financial

disclosure condition of his supervised release. He argues that alt-

hough plain error ordinarily applies when a defendant failed to ob-

ject to a special condition during sentencing, we should be per-

suaded by the reasoning in United States v. Sofsky to “relax the oth-

erwise rigorous standards of plain error review.” See 287 F.3d 122,

125 (2d Cir. 2002). The Sofsky court reviewed a special condition of

supervised release under a relaxed plain-error standard even

though the defendant did not object in the district court. The Sec-

ond Circuit explained that, unlike an unobjected error at trial, an

unobjected error at sentencing would lead, “at most,” to “only a

remand for resentencing” or “a modification of the allegedly erro-

neous condition of supervised release.” Id.

We decline to follow Sofsky. We have never relaxed the plain-

error standard when reviewing special conditions of supervised

USCA11 Case: 23-10266 Document: 37-1 Date Filed: 05/22/2024 Page: 8 of 27

8 Opinion of the Court 23-10266

release, and the Supreme Court has never suggested that we should

make an exception for this kind of error. Indeed, we have consist-

ently reviewed special conditions for plain error when no objection

was raised, and we are bound by our precedent. See, e.g., United

States v. Carpenter, 803 F.3d 1224, 1237 (11th Cir. 2015); see also

United States v. Zinn, 321 F.3d 1084, 1087 (11th Cir. 2003).

Because Etienne did not object to the financial disclosure

condition in the district court, we review its imposition for plain

error. See Moran, 573 F.3d at 1137. To prevail under that standard,

Etienne must establish that the district court made an error that

was plain and that affected his substantial rights. See United States v.

Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). An error is plain

only if binding precedent establishes the error or if the language of

a statute or rule clearly resolves the issue. See United States v. Frank,

599 F.3d 1221, 1239 (11th Cir. 2010). Satisfying the standard is diffi-

cult. Puckett v. United States, 556 U.S. 129, 135 (2009).

Etienne cannot establish that a plain error occurred. No con-

trolling caselaw holds that a financial disclosure is an inappropriate

condition of supervised release in this circumstance. Nor does the

condition conflict with any statute or rule. A district court may im-

pose any special condition of supervised release that it “deems ap-

propriate,” see United States v. Tome, 611 F.3d 1371, 1375 (11th Cir.

2010), so long as the condition is “reasonably related to” specific

sentencing factors, “involves no greater deprivation of liberty than

is reasonably necessary” to fulfill the statutory purpose, and “is

consistent with any pertinent policy statements issued by the

USCA11 Case: 23-10266 Document: 37-1 Date Filed: 05/22/2024 Page: 9 of 27

23-10266 Opinion of the Court 9

Sentencing Commission,” 18 U.S.C. § 3583(d)(1)–(3). The relevant

policy statement states that a financial disclosure condition may be

imposed if the district court orders restitution, forfeiture, notice to

victims, or a fine. United States Sentencing Guidelines Manual

§ 5D1.3(d)(3) (Nov. 2021). But the guideline also states that a finan-

cial disclosure condition “may otherwise be appropriate in particu-

lar cases.” Id. § 5D1.3(d). District courts must impose a special as-

sessment for each count of conviction. 18 U.S.C. § 3013(a). The dis-

trict court ordered Etienne to pay a special assessment, and the fi-

nancial disclosure condition is not clearly unrelated to that assess-

ment.

B. The District Court Did Not Abuse its Discretion by Imposing a Stay-

Away Order as a Condition of Etienne’s Supervised Release.

Etienne challenges the stay-away order on two grounds. He

argues that the stay-away order is vague and overbroad, and he ar-

gues that the order unduly burdens his right to access the federal

courts. We address these arguments in turn.

1. The Stay-Away Order Is Not Vague or Overbroad.

Etienne asserts that the stay-away order is vague and over-

broad because it forbids him from calling “the Judges’ chambers or

any facility” or “visiting” the federal courthouses in Fort Pierce and

West Palm Beach and the King Courthouse in Miami. He chal-

lenges the terms “any facility” and “visiting.” The phrase “any fa-

cility,” he argues, is unclear. And he contends that the verb “visit-

ing,” unlike a verb such as “entering,” is also vague and overbroad

USCA11 Case: 23-10266 Document: 37-1 Date Filed: 05/22/2024 Page: 10 of 27

10 Opinion of the Court 23-10266

and could include “merely standing outside the specified federal

courthouses.”

A district court has discretion to impose “any condition of

supervised release it deems appropriate so long as it comports with

the factors enumerated in 18 U.S.C. [section] 3553(a).” Tome, 611

F.3d at 1375. Conditions of supervised release are not vague and

overbroad when they are “undeniably related to the sentencing fac-

tors,” United States v. Nash, 438 F.3d 1302, 1307 (11th Cir. 2006) (ci-

tation and internal quotation marks omitted), and are “sufficiently

specific to provide the defendant with adequate notice of prohib-

ited conduct,” United States v. Coglianese, 34 F.4th 1002, 1012 (11th

Cir. 2022) (citation and internal quotation marks omitted). Terms

are sufficiently specific when they have a commonsense meaning.

Id. To determine ordinary meaning, we look to dictionaries, see id.,

and context, see In re Failla, 838 F.3d 1170, 1175–76 (11th Cir. 2016).

And if there is a conflict between the oral sentence and the written

judgment, the oral pronouncement controls. United States v. Bates,

213 F.3d 1336, 1340 (11th Cir. 2000).

The term “any facility” is not vague or overbroad. In its oral

pronouncement of the sentence, the district court specified that

Etienne was prohibited from calling “court facilities.” Although the

later written judgment said “any facility,” the oral pronouncement

controls. Id. The meaning of “court facilities” is clear in context. See

Coglianese, 34 F.4th at 1013. Etienne was charged with threatening

a specific judge and the judge’s courtroom deputy, and the term

“court facilities” was included in a list of related prohibitions that

USCA11 Case: 23-10266 Document: 37-1 Date Filed: 05/22/2024 Page: 11 of 27

23-10266 Opinion of the Court 11

forbade Etienne from contacting his victims or the prosecutor on

his case, calling the judges’ chambers, or visiting specific federal

courthouses. See Antonin Scalia & Bryan A. Garner, Reading Law:

The Interpretation of Legal Texts § 24, at 167 (2012) (“Context is a pri-

mary determinant of meaning.”); see also id. § 31, at 195 (“[The As-

sociated-Words Canon] especially holds that ‘words grouped in a

list should be given related meanings.’” (citation omitted)).

When the term “court facilities” is considered in context,

Etienne had specific notice that he could not call the federal court

facilities enumerated in the stay-away order. His argument that he

has “no notice of who and what he is prohibited from calling” is

meritless when considered in the context of the other special con-

ditions of supervised release and his underlying conduct. In con-

text, it is clear that the prohibition does not extend to state court-

houses and facilities. And the prohibition on calling federal court

facilities is “undeniably related” to the sentencing factors. See Nash,

438 F.3d at 1307 (citation and internal quotation marks omitted).

Among those factors is “the nature and circumstances of the of-

fense.” 18 U.S.C. § 3553(a)(1). Etienne called a federal courthouse

and threatened the lives of a magistrate judge and an employee.

The prohibition on calling federal court facilities relates to those

underlying offenses.

Nor did the district court abuse its discretion when it prohib-

ited Etienne from “visiting” the federal courthouses in Fort Pierce

and West Palm Beach and the King Courthouse in Miami. The

term “visiting” is not vague. Its definition is straightforward: to “go

USCA11 Case: 23-10266 Document: 37-1 Date Filed: 05/22/2024 Page: 12 of 27

12 Opinion of the Court 23-10266

to see or stay at (a place) for a particular purpose.” Visit, MERRIAM-

WEBSTER, https://perma.cc/PUV5-57AV (last visited Feb. 29,

2024). Etienne would violate this condition by purposefully going

to one of the prohibited courthouses and staying there. Passing the

facility on the street is not “visiting.” But loitering outside the build-

ing would count. And like the prohibition on calling court facilities,

the prohibition on visiting the specified courthouses relates to

Etienne’s underlying offense. See 18 U.S.C. § 3553(a)(1).

2. The Stay-Away Order Does Not Unduly Burden Etienne’s

Right to Access the Federal Courts.

Etienne also argues that the stay-away order prohibiting him

from visiting the federal courthouses in Fort Pierce and West Palm

Beach and the King Courthouse in Miami or calling court facilities

unduly burdens his constitutional right to access the federal courts.

Although access to the courts is a constitutional right, Chappell v.

Rich, 340 F.3d 1279, 1282 (11th Cir. 2003), a condition of supervised

release is not invalid any time it affects a supervisee’s ability to ex-

ercise his constitutional rights, Zinn, 321 F.3d at 1089 (explaining

that a condition of supervised release “is not invalid simply because

it affects a probationer’s ability to exercise constitutionally pro-

tected rights”). Instead, the metrics for assessing a special condition

are whether it is reasonably related to the statutory sentencing fac-

tors, 18 U.S.C. § 3553(a), “involves no greater deprivation of liberty

than is reasonably necessary for the purposes set forth in [sec-

tion 3553(a)],” and is “consistent with any pertinent policy state-

ments issued by the Sentencing Commission.” Id. § 3583(d)(1)–(3).

USCA11 Case: 23-10266 Document: 37-1 Date Filed: 05/22/2024 Page: 13 of 27

23-10266 Opinion of the Court 13

Etienne argues that the stay-away order is more restrictive than

necessary.

This Court has never considered whether a condition of su-

pervised release like the one imposed on Etienne unduly burdens

the right to access the federal courts. But we have affirmed restric-

tive conditions of supervised release that burden constitutional

rights so long as the conditions are tempered by reasonable excep-

tions. See, e.g., Zinn, 321 F.3d at 1093 (affirming a restriction on in-

ternet use in a child pornography prosecution because the supervi-

see could still use the internet for valid purposes by obtaining his

probation officer’s permission); Coglianese, 34 F.4th at 1011 (same);

United States v. Cothran, 855 F.2d 749, 752 (11th Cir. 1988) (affirming

condition ordering supervisee to stay out of Fulton County be-

cause he could still enter the county on occasion with the permis-

sion of his probation officer). A special condition may burden the

right to access the courts so long as the special condition does not

amount to an absolute bar on access.

We have also allowed restrictions on civil litigants’ right to

access the courts so long as the litigant is not completely foreclosed

from any access to the courts. See, e.g., Johnson v. 27th Ave. Caraf,

Inc., 9 F.4th 1300, 1317–18 (11th Cir. 2021) (holding that the district

court did not abuse its discretion by imposing a prefiling require-

ment on an abusive litigant because the litigant “is not completely

denied access to the courts”). We have held that although protect-

ing the courts from abusive civil litigants is important, the re-

strictions may not “impose blanket prohibitions on the litigant.”

USCA11 Case: 23-10266 Document: 37-1 Date Filed: 05/22/2024 Page: 14 of 27

14 Opinion of the Court 23-10266

Miller v. Donald, 541 F.3d 1091, 1097 (11th Cir. 2008); see also Procup

v. Strickland, 792 F.2d 1069, 1074 (11th Cir. 1986) (en banc) (holding

that civil litigants “cannot be completely foreclosed from any access

to the court”). In Miller, we explained that an injunction barring a

serial civil litigant from filing anything with the court except in lim-

ited circumstances was too restrictive because it would completely

bar the litigant from filing new civil suits. 541 F.3d at 1095, 1098.

And in Copeland v. Green, we held that an order barring a pro se civil

litigant from “entering the federal courthouse in Birmingham and

from delivering documents to the Clerk of Court [was] impermis-

sibly restrictive of his right to access to that court.” 949 F.2d 390,

391 (11th Cir. 1991). Similarly, in Procup, we held that requiring a

serial civil litigant to file only through an attorney was effectively

an absolute bar on his access to the courts because the litigant’s

track record—including suing his pro bono counsel—made it impos-

sible for him to retain an attorney. 792 F.2d at 1071.

The special condition prohibiting Etienne from visiting

three federal courthouses or calling the judges’ chambers and court

facilities does not absolutely bar his access to the federal courts.

Etienne need not visit a courthouse himself or call a judge or court

facilities to conduct court business. He still enjoys sufficient access.

Etienne’s case is distinguishable from Miller, Procup, and

Copeland. Unlike Miller, Etienne is not barred from filing lawsuits;

he is barred only from filing them in person at the Fort Pierce court-

house, the West Palm Beach courthouse, or the King Courthouse

in Miami. And prohibiting Etienne from filing in-person at those

USCA11 Case: 23-10266 Document: 37-1 Date Filed: 05/22/2024 Page: 15 of 27

23-10266 Opinion of the Court 15

courthouses does not absolutely bar him from accessing the courts.

Etienne may file by mail, or he may file in-person at the Wilkie D.

Ferguson Jr., Courthouse in Miami or at the courthouse in Fort

Lauderdale, both of which accept filings for any division in the

Southern District of Florida. Indeed, the District Clerk does not

have an office or accept filings in the King Courthouse, which is

only a city block away from the Ferguson Courthouse. Because he

may go in-person to the Ferguson and Fort Lauderdale Court-

houses, Etienne has ample access to the Clerk’s Office and can seek

the assistance of its employees if he needs it.

None of our precedents address a filing restriction in the

criminal context. Unlike the civil litigants in Miller, Procup, and

Copeland, Etienne is not an abusive civil litigant. He is guilty of

criminal conduct and pleaded nolo contendere to crimes of threaten-

ing court officials. Convicted criminals often face restrictions that

civil litigants do not, even if the civil litigants are ill-behaved. See,

e.g., Jones v. Governor of Fla., 975 F.3d 1016, 1028–29 (11th Cir. 2020)

(en banc) (explaining that the Constitution allows states to disen-

franchise felons). The stay-away order, unlike the orders in our civil

precedents, was not designed to stop Etienne from filing frivolous

lawsuits in federal court. It was narrowly tailored to protect the

victims of his crimes and to address the serious conduct underlying

his sentence: threats that he made on the lives of a federal magis-

trate judge and federal employees. Etienne’s situation is meaning-

fully different from that of a vexatious civil litigant, and his under-

lying criminal conduct make this restriction appropriate.

USCA11 Case: 23-10266 Document: 37-1 Date Filed: 05/22/2024 Page: 16 of 27

16 Opinion of the Court 23-10266

The order does not restrict Etienne more than is reasonably

necessary to fulfill the statutory purposes of punishment. See 18

U.S.C. § 3583(d)(2). The sentence should “afford adequate deter-

rence to criminal conduct” and “protect the public from further

crimes of the defendant.” Id. § 3553(a)(2)(B)–(C). The stay-away or-

der does so. The order does not bar Etienne from all courts in the

judicial district. It instead prohibits Etienne from visiting only those

federal courthouses in which the officials whom Etienne threat-

ened work. And it prevents him from calling those facilities—an

action integral to his crimes of conviction. Considering that

Etienne threatened violence against a judge and courtroom deputy

by phone and called the courthouse more than once, a special con-

dition prohibiting him from visiting the relevant courthouses or

calling those facilities reasonably deters him from engaging in that

conduct again and protects the public from that conduct.

Nor does the stay-away order unduly burden Etienne’s right

of access to trials. Globe Newspaper Co. v. Superior Ct. for Norfolk

Cnty., 457 U.S. 596, 603 (1982). Like all constitutional rights, the

right to access a trial is not absolute. See United States v. Brazel, 102

F.3d 1120, 1155 (11th Cir. 1997). Even criminal defendants facing

their own trials can be removed from trial for disruptive behavior.

See Foster v. Wainwright, 686 F.2d 1382, 1387 (11th Cir. 1982). Be-

cause Etienne made multiple threats of violence against court offi-

cials who work in the buildings that he is prohibited from entering,

it was not an abuse of discretion for the district court to limit his

access to trials in those three buildings. And the stay-away order

applies only to courthouses in which fewer trials take place. Most

USCA11 Case: 23-10266 Document: 37-1 Date Filed: 05/22/2024 Page: 17 of 27

23-10266 Opinion of the Court 17

trials in the Southern District of Florida are held in the Wilkie D.

Ferguson Jr., Courthouse in Miami and the Fort Lauderdale court-

house, and Etienne has unfettered access to both under the terms

of his supervised release. The stay-away order does not act as an

absolute bar on Etienne’s right to access trials.

To be sure, unlike the special conditions in Zinn, Coglianese,

and Cothran, the stay-away order does not provide a built-in mech-

anism for Etienne to visit the specified courthouses or call the court

facilities if he needs to do so. He could not go to those courthouses

or call for a valid purpose by, for example, simply getting permis-

sion from his probation officer. But the absence of an exception

provision does not doom the validity of the stay-away order.

Etienne has other options for doing legitimate business in

federal court besides calling or visiting the specified courthouses.

And if he needs to call or enter one of the specified courthouses for

a valid purpose, the district court could modify the conditions of

supervised release, if necessary. See 18 U.S.C. § 3583(e)(2) (“The

court may . . . modify . . . the conditions of supervised release, at

any time prior to the expiration or termination of the term of su-

pervised release.”). Of course, that a district court may modify the

terms of supervised release does not mean that an unlawful condi-

tion is permissible. But when the restriction on Etienne’s right to

access the federal courts is already narrowly prescribed—limiting

his access to only certain courthouses for a three-year period—his

right to access is not unduly burdened. District courts need not

spell out every possible scenario when imposing conditions of

USCA11 Case: 23-10266 Document: 37-1 Date Filed: 05/22/2024 Page: 18 of 27

18 Opinion of the Court 23-10266

supervised release, and if Etienne must visit one of the three court-

houses named in the terms of his supervised release in the time that

remains in that term, the issue should be addressed when it arises,

if it arises at all.

Special conditions of supervised release are reviewed only

for abuse of discretion, and we cannot say that the district court

abused its wide discretion. It neither misunderstood the law nor

made erroneous findings of fact. It narrowly tailored the stay-away

order to address Etienne’s serious criminal conduct. It curtailed

only his access for a limited period to three courthouses in which

his victims work. Our precedents in the civil context are distin-

guishable. Because the stay-away order is narrowly tailored and

does not create an absolute bar on Etienne’s rights, the district

court was within its discretion to impose it.

IV. CONCLUSION

We AFFIRM Etienne’s sentence.

USCA11 Case: 23-10266 Document: 37-1 Date Filed: 05/22/2024 Page: 19 of 27

23-10266 JILL PRYOR, J., Dissenting in Part 1

JILL PRYOR, Circuit Judge, concurring in part and dissenting in part:

Carmelo Etienne called the Fort Pierce federal courthouse

and threatened to murder a magistrate judge and other court em-

ployees. After his arrest, he pleaded no contest to threatening a fed-

eral magistrate judge and a courtroom deputy. The district court

sentenced him to time served and three years of supervised release,

imposing two special conditions on the supervised release. First,

the court imposed a financial-disclosure obligation, requiring that

Etienne disclose his finances to the probation office. Second, the

court imposed a stay-away order, prohibiting Etienne from visiting

the Fort Pierce and West Palm Beach federal courthouses and the

James Lawrence King Courthouse in Miami and from calling any

judges’ chambers or court facilities in any building.

I agree with the majority opinion that imposing the finan-

cial-disclosure obligation was not plain error. And I agree that the

stay-away order is neither vague nor overbroad. But the stay-away

order unduly burdens Etienne’s right to access the courts, imposing

a greater deprivation of liberty than is reasonably necessary. Be-

cause the majority opinion reaches the opposite conclusion, I re-

spectfully dissent in part.

The Constitution prevents the government from “frus-

trat[ing] a plaintiff . . . in preparing and filing suits.” Christopher, 536

U.S. at 413; see also id. at 415 n.12 (noting that Supreme Court deci-

sions “have grounded the right of access to courts in the Article IV

Privileges and Immunities Clause, the First Amendment Petition

Clause, the Fifth Amendment Due Process Clause, and the

USCA11 Case: 23-10266 Document: 37-1 Date Filed: 05/22/2024 Page: 20 of 27

2 JILL PRYOR, J., Dissenting in Part 23-10266

Fourteenth Amendment Equal Protection and Due Process

Clauses” (citations omitted)). Our Circuit has clarified that right

largely through civil cases, analyzing whether injunctions imposed

by district courts encroach on plaintiffs’ constitutional right to file

lawsuits. Three cases are most relevant here.

In one case, we held that a district court’s injunction en-

croaches on that right when it “effectively enjoins [a plaintiff] from

filing any suit.” Procup v. Strickland, 792 F.2d 1069, 1071 (11th Cir.

1986) (en banc). In Procup, we invalidated the district court’s injunc-

tion preventing Robert Procup from filing complaints without an

attorney’s help. Id. at 1070. Private attorneys may avoid Procup’s

cases, we reasoned, leaving a legitimate claim unfiled. Id. at 1071.

In another case, we concluded that a district court’s injunc-

tion encroaches on a litigant’s right to file lawsuits when it prevents

litigants from entering courthouses. Copeland v. Green, 949 F.2d 390,

391 (11th Cir. 1991). The district court enjoined David Copeland

from entering the Hugo L. Black Courthouse in Birmingham, Ala-

bama, foreclosing him from filing complaints and other legal doc-

uments there. Id. The court ordered that Copeland file through the

mail instead. Id. We concluded that “barring Copeland from enter-

ing the federal courthouse in Birmingham and from delivering doc-

uments to the Clerk of Court [were] impermissibly restrictive of

his right to access to that court.” Id.

In a third case, we invalidated another filing injunction even

though it contained exceptions. Miller v. Donald, 541 F.3d 1091, 1098

(11th Cir. 2008). The district court enjoined Arthur Miller, a

USCA11 Case: 23-10266 Document: 37-1 Date Filed: 05/22/2024 Page: 21 of 27

23-10266 JILL PRYOR, J., Dissenting in Part 3

frequent litigant, “from submitting further filing with the court,

except in limited circumstances, without paying the unpaid filing

fees he ha[d] accrued.” Id. at 1094. That injunction, we said, failed

“to uphold Miller’s right of access to the courts.” Id. at 1098. We

recognized that the “three limited exceptions in the injunction”

provided Miller with some avenues to access the courts. Id. But

they failed to “provide Miller with meaningful access.” Id.

Under these precedents, the district court’s stay-away order

would be impermissible if it were imposed in a civil case: the stay-

away order prevents Etienne from entering particular courthouses,

which Copeland considered “impermissibly restrictive.” 949 F.2d at

391. The majority opinion tries to distinguish these precedents. Its

attempts are unconvincing.

The majority opinion first tries to distinguish these prece-

dents factually. “Unlike Miller,” the majority opinion reasons,

“Etienne is not barred from filing lawsuits; he is barred only from

filing them in person at the Fort Pierce courthouse, the West Palm

Beach courthouse, or the King Courthouse in Miami.” Maj. Op. at

14–15. But the injunction imposed on Miller did not bar him from

filing altogether; it barred him only from filing lawsuits without

paying his unpaid filing fees. And even then, there were exceptions.

Miller, 541 F.3d at 1098. So Miller is not distinguishable on the

ground that the district enjoined Miller from filing at all.

In a similar vein, the majority opinion highlights that

Etienne can file in person at the Ferguson Courthouse or the Fort

Lauderdale courthouse. Maj. Op. at 15. But Copeland was not

USCA11 Case: 23-10266 Document: 37-1 Date Filed: 05/22/2024 Page: 22 of 27

4 JILL PRYOR, J., Dissenting in Part 23-10266

enjoined from filing in person at the Huntsville courthouse, yet we

struck down the injunction. Well, the majority opinion says,

Etienne can file by mail. Id. But so could Copeland. See Copeland,

949 F.2d at 391. If Copeland’s injunction was impermissibly restric-

tive, then so is Etienne’s stay-away order.

The majority opinion next tries to distinguish this case from

our right-of-access precedents because Etienne’s case is criminal.

People convicted of crimes, the majority opinion reminds us, fre-

quently face greater restrictions on their liberties than civil litigants

do. True, but unpersuasive. While we have no published precedents

addressing a filing restriction in the criminal context, we have relied

on our civil right-of-access cases to inform filing restrictions im-

posed on people convicted of crimes. See United States v. Flint, 178

F. App’x 964 (11th Cir. 2006) (unpublished), cited approvingly in Mil-

ler, 541 F.3d at 1098.

In Flint, a criminal case, “the district court enjoined Flint

from filing any further pleadings or motions after he had inundated

the court with papers during his trial and following his conviction.”

Miller, 541 F.3d at 1098. We relied on Procup and Copeland to con-

clude that the district court “improperly infring[ed] on Flint’s right

of access to the courts.” Flint, 178 F. App’x at 970. Like Flint’s in-

junction, Etienne’s stay-away order “encompasse[s] all unrelated

business that [Etienne] might subsequently have with the court.”

Miller, 541 F.3d at 1098. This improperly infringes on his right of

access to the courts. See id.

USCA11 Case: 23-10266 Document: 37-1 Date Filed: 05/22/2024 Page: 23 of 27

23-10266 JILL PRYOR, J., Dissenting in Part 5

And, in the criminal context, the statutory framework for

assessing supervised release conditions accounts for these constitu-

tional concerns. It requires us to ensure that each condition “is rea-

sonably related to” enumerated factors, “involves no greater depri-

vation of liberty than is reasonably necessary for” the purposes un-

derlying those enumerated factors, and “is consistent with any per-

tinent policy statements issued by the Sentencing Commission.”

18 U.S.C. § 3583(d)(1)–(3). The stay-away order unduly burdens

Etienne’s right to file lawsuits under this framework.

The majority opinion explains how the stay-away order is

reasonably related to some of the enumerated factors, including

the nature and circumstances of Etienne’s offenses, the need to af-

ford adequate deterrence, and the need to protect the public. See

18 U.S.C. § 3553(a)(1), (a)(2)(B)–(C). I agree. Etienne called the

court and threatened a judge and a courtroom deputy. A special

condition prohibiting him from visiting the courthouse he called

and threatened protects the public—and those who were threat-

ened. A special condition prohibiting him from calling court facili-

ties—at least those that received his phoned-in threats—reasonably

deters him from making such threats again. 1 And these special con-

ditions mirror the nature and circumstances of Etienne’s crime.

1 The stay-away order prevents Etienne from calling any federal court facility,

even those that never received his threats. The majority says that “prohibiting

him from visiting the relevant courthouses or calling those facilities reasona-

bly deters him engaging in that conduct again.” Maj. Op. at 16. But this special

condition goes well beyond prohibiting him from calling those facilities; it pre-

vents him from calling any federal court facility, presumably in the nation.

USCA11 Case: 23-10266 Document: 37-1 Date Filed: 05/22/2024 Page: 24 of 27

6 JILL PRYOR, J., Dissenting in Part 23-10266

No matter how reasonably related the special condition is to

the enumerated factors, though, we have a separate obligation to

ensure that it “involves no greater deprivation of liberty than is rea-

sonably necessary” to deter criminal conduct and protect the pub-

lic. 18 U.S.C. § 3583(d)(2); see id. § 3553(a)(2)(B)–(C). A condition

can involve a greater-than-necessary deprivation even if that condi-

tion reflects the crime’s nature and affords adequate deterrence.

See, e.g., United States v. Zinn, 321 F.3d 1084, 1092–93 (11th Cir. 2003)

(noting “the strong link between child pornography and the Inter-

net” while still ensuring the internet restriction was “not overly

broad”).

Our criminal precedents assessing special conditions show

that the stay-away order involves a greater deprivation of liberty

than is reasonably necessary. Those precedents have “uniformly up-

held” various restrictions on a defendant’s liberty only where the

defendant could still “seek permission from the probation office to

[exercise that liberty] and/or [exercise that liberty] for specified

purposes.” United States v. Coglianese, 34 F.4th 1002, 1010 (11th Cir.

2022); see also Zinn, 321 F.3d at 1093 (concluding that the restriction

was “not overly broad” because Zinn “may still use the internet”

with “his probation officer’s prior permission”); United States v.

Cothran, 855 F.2d 749, 752 (11th Cir. 1988) (rejecting Cothran’s chal-

lenge to his condition prohibiting him from entering Fulton

County, Georgia, because he could “still enter Fulton County with

the permission of his probation officer”). Under his stay-away or-

der, Etienne cannot seek permission from the probation office to

visit or call courthouses. He also cannot exercise that liberty for

USCA11 Case: 23-10266 Document: 37-1 Date Filed: 05/22/2024 Page: 25 of 27

23-10266 JILL PRYOR, J., Dissenting in Part 7

specified purposes. The stay-away order is therefore invalid under

our precedents.

The majority opinion nonetheless interprets these prece-

dents differently. It says they require only that the conditions the

district court imposes on a defendant’s liberty “are tempered by

reasonable exceptions” and do “not amount to an absolute bar on

access.” Maj. Op. at 13. But the exceptions in our precedents were

not merely reasonable; they were explicit. All three precedents, in

fact, stress the same explicit exception: the special conditions were

no greater than necessary because the defendants could seek per-

mission from the probation office. See Cothran, 855 F.2d at 752 (em-

phasizing that Cothran “may still enter Fulton County with the

permission of his probation officer”); Zinn, 321 F.3d at 1093 (con-

cluding that the restriction is “not overly broad in that [Zinn] may

still use the Internet for valid purposes by obtaining his probation

officer’s prior permission”); Coglianese, 34 F.4th at 1011 (highlight-

ing as significant that the district court “expressly permitted Mr.

Coglianese to obtain approval from the probation office to use

computers and the internet for legitimate purposes”). Etienne’s

stay-away order contains neither reasonable nor explicit exceptions.

It contains no exceptions at all.

Aside from the statutory framework’s focus on whether the

stay-away order is a greater-than-necessary deprivation, the stay-

away order also fails under the test the majority opinion conjured:

whether the order is tempered by reasonable exceptions and does

not amount to an absolute bar on access. The majority opinion

USCA11 Case: 23-10266 Document: 37-1 Date Filed: 05/22/2024 Page: 26 of 27

8 JILL PRYOR, J., Dissenting in Part 23-10266

applies this test by focusing on whether Etienne is “completely

foreclosed from any access to the courts.” Maj. Op. at 13. It reasons

that he “enjoys sufficient access,” even though he is prohibited

“from visiting three federal courthouse or calling the judges’ cham-

bers and court facilities.” Id. at 14. But the majority opinion’s appli-

cation contradicts how our precedents have examined absolute

bars.

When our precedents analyzed absolute bars, they consid-

ered whether the special condition absolutely barred the re-

striction’s subject, not the right in question. In Coglianese, for exam-

ple, we considered whether the condition imposed an absolute bar

“on Mr. Coglianese’s use of computer and internet during his term

of supervised release,” not whether it imposed an absolute ban on

his First Amendment rights. Id. We concluded that “the court did

not impose an absolute ban.” Id. In Zinn, we considered whether

the condition imposed an absolute bar on Zinn’s use of the inter-

net, concluding that it did not. 321 F.3d at 1093. 2

2 See also Zinn, 321 F.3d at 1092 & n.10. In the footnote, we mentioned two

Tenth Circuit cases that further support my position. In United States v. White,

the Tenth Circuit held that a special condition barring White from “pos-

sess[ing] a computer with Internet access throughout his period of supervised

release” was greater than necessary because it completely barred White from

using a computer, even “to do any research, get a weather forecast, or read a

newspaper online.” 244 F.3d 1199, 1205–06 (10th Cir. 2001). The Tenth Circuit

did not consider whether the condition imposed an absolute bar on White’s

First Amendment rights. And in United States v. Walser, the Tenth Circuit dis-

tinguished White and found permissible a special condition “barring his use of

or access to the Internet without the prior permission of the United States

USCA11 Case: 23-10266 Document: 37-1 Date Filed: 05/22/2024 Page: 27 of 27

23-10266 JILL PRYOR, J., Dissenting in Part 9

But Etienne’s special condition does impose an absolute bar

on his access to the Fort Pierce and West Palm Beach federal court-

houses and the James Lawrence King Courthouse in Miami and on

his ability to call court facilities. Because it imposes this absolute

bar, it unduly restricts his right to file lawsuits, even though the spe-

cial condition does not absolutely bar that right. Under the proper

test, the stay-away order is a greater-than-necessary restriction. In-

deed, the stay-away order fails even the proper application of the

test the majority opinion adopts.3

Although I agree with the majority opinion that the district

court should be affirmed in part, I would vacate the stay-away or-

der and remand to the district court on this condition. I respectfully

dissent.

Probation officer” because “Walser is not completely banned from using the

Internet. Rather, he must obtain prior permission from the probation office.”

275 F.3d 981, 987–88 (10th Cir. 2001). We characterized Zinn’s case as “virtu-

ally identical to” Walser’s. Zinn, 321 F.3d at 1092 n.10. In both cases, the courts

did not absolutely bar the restriction’s subject. Etienne’s case is closer to

White’s, in which the court did absolutely bar the restriction’s subject.

3 The majority opinion’s reach, at least, is narrow. The Southern District of

Florida permits litigants to file “at any division,” so Etienne can file lawsuits at

courthouses other than those listed in his stay-away order. S.D. Fla. Civ. Filing

Requirements 2E. In other districts, however, that alternative is unavailable.

The Middle District of Florida, for example, requires a party to file “in the di-

vision to which the action is most directly connected or in which the action is

most conveniently advanced.” M.D. Fla. Loc. R. 1.04(b). By failing to

acknowledge that the Southern District of Florida’s rule is not universal, the

majority opinion appears to sweep more broadly than it should.