Petition for Writ of Certiorari — James Mowery, Petitioner v. United States

No.

In the

Supreme Court of the United States

James Mowery,

Petitioner,

v.

United States of America,

Respondent.

On Petition for a Writ of Certiorari

from the United States Court of

Appeals for the Fifth Circuit

Fifth Circuit Case No. 18-60158

PETITION FOR A WRIT OF CERTIORARI

CLAUDE KELLY

Interim Federal Public Defender

N. and S. Districts of Mississippi

M. SCOTT DAVIS (MB #103225)

Assistant Federal Public Defender

Northern District of Mississippi

1200 Jefferson Avenue, Suite 100

Oxford, Mississippi 38655

Telephone: (662) 236-2889

Facsimile: (662) 234-0428

Attorney for Petitioner-Defendant

QUESTIONS PRESENTED

I.

In Packingham v. North Carolina, 137 S. Ct. 1730 (2017), this Court found

unconstitutional a criminal statute prohibiting sex offenders from accessing

social media on the Internet. The Fifth Circuit has not applied Packingham in a

supervised release revocation hearing context and has failed to see the broader

application regarding supervised release Internet restrictions as infringing on

defendant’s rights.

i

PARTIES TO THE PROCEEDING

Petitioner is James Mowery, who was the Defendant-Appellant in the court below.

Respondent, the United States of America, was the Plaintiff-Appellee in the court below.

COURT PROCEEDINGS

United States v. James Mowery, 2:08-CR-006 Northern District of Mississippi;

Original Judgment entered September, 8, 2008.

United States v. James Mowery, 2:08-CR-006 Northern District of Mississippi;

Judgment for First Revocation of Supervised Release entered October 24, 2014.

United States v. James Mowery, 2:08-CR-006 Northern District of Mississippi;

Judgment for Second Revocation of Supervised Release entered on March 5, 2018.

United States v. James Mowery, Fifth Circuit Case Number 18-60158, 742 Fed. App’x 863

(2018) entered on November 16, 2018.

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED .............................................................................. i

PARTIES TO THE PROCEEDING ................................................................... ii

COURT PROCEEDINGS ................................................................................ ii

TABLE OF CONTENTS ................................................................................ iii

TABLE OF AUTHORITIES............................................................................. v

PETITION FOR A WRIT OF CERTIORARI ..................................................... 1

OPINIONS BELOW ........................................................................................ 1

JURISDICTION .............................................................................................. 1

CONSTITUTIONAL PROVISIONS ................................................................. 2

STATEMENT OF THE CASE.......................................................................... 5

REASONS FOR GRANTING THIS PETITION ................................................. 6

I.

Courts below have reached irreconcilable interpretations of the rule set forth

in Packingham v. North Carolina, creating an entrenched and problematic circuit

split .......................................................................................................... 6

A.

Packingham should apply in supervised release revocation hearings. ....... 6

iii

B.

The special condition itself is overly broad because it effectively prohibits

access to the Internet. ................................................................................ 7

1.

Scope…………………………………………………………………...9

2.

Duration……………………………………………………………….12

3.

The Internet is essential to functioning in today’s society, preventing

Mr. Mowery from merely accessing the Internet is unreasonable………….13

CONCLUSION ............................................................................................. 14

4

TABLE OF AUTHORITIES

Cases

Mutter v. Ross, 811 S.E.2d 866 (W. Va. 2018)........................................................................... 10, 11

Packingham v. North Carolina, 137 S. Ct. 1730 (2017) ........................................................... passim

United States v. Browder, 866 F.3d 504 (2d Cir. 2017), cert. denied, ––– U.S. ––––, 138 S.Ct. 693,

(2018) ............................................................................................................................................. 6

United States v. Crandon, 173 F.3d 122 (3d Cir. 1999) ..................................................................... 9

United States v. Duke, 788 F.3d 392 (5th Cir. 2015) .................................................................... 9, 12

United States v. Eaglin, 913 F.3d 88 (2d Cir. 2019)....................................................................... 7, 8

United States v. Farrell, 2018 WL 1035856 (E.D. Tex. 2018) .......................................................... 6

United States v. Fields, 777 F.3d 799 (5th Cir. 2014) ........................................................................ 7

United States v. Freeman, 316 F.3d 386 (3d Cir. 2003) ................................................................... 11

United States v. Halverson, 897 F.3d 645 (5th Cir. 2018).................................................................. 6

United States v. Heckman, 592 F.3d 400 (3d Cir. 2010) .............................................................. 9, 12

United States v. Holm, 326 F.3d 872 (7th Cir. 2003) ....................................................................... 12

United States v. Johnson, 446 F.3d 272 (2d Cir. 2006) ................................................................ 9, 12

United States v. LaCoste, 821 F.3d 1187 (9th Cir. 2016) ................................................................... 7

United States v. Miller, 665 F.3d 114 (5th Cir. 2011) ........................................................ 8, 9, 10, 11

United States v. Moran, 573 F.3d 1132 (11th Cir. 2009) ........................................................... 11, 12

United States v. Mowery, 742 Fed. App’x 863 (2018) ............................................................... 1, 5, 6

United States v. Paul, 274 F.3d 155 (5th Cir. 2001)..................................................................... 7, 12

United States v. Rock, 863 F.3d 827 (D.C. Cir. 2017) ........................................................................ 6

United States v. Rodriguez, 558 F.3d 408 (5th Cir. 2009) .................................................................. 7

v

United States v. Sealed Juvenile, 781 F.3d 747 (5th Cir. 2015) ......................................................... 8

United States v. Sofsky, 287 F.3d 122 (2d Cir. 2002) ....................................................................... 11

United States v. Zinn, 321 F.3d 1084 (11th Cir. 2003) ............................................................... 11, 12

Statutes

18 U.S.C. § 2252A(a)(5)(B) ........................................................................................................... 1, 5

18 U.S.C. § 2256(8) ........................................................................................................................ 1, 5

18 U.S.C. § 3553(a) .................................................................................................................... 2, 5, 7

18 U.S.C. § 3583(d) .................................................................................................................... 4, 5, 7

28 U.S.C. § 1254(1) ............................................................................................................................ 2

Other Authorities

Bill Gates Quotes, brainyquote.com,

http://www.brainyquote.com/quotes/quotes/b/billgates384628.html (last visited March 16, 2016)

........................................................................................................................................................ 8

Carina Kolodny, Here's what the Internet Could Look Like in 2025, Huffington Post (last updated

March 12, 2014), http://www.huffingtonpost.com/2014/03/11/heres-what-the-Internetc_n_4943051.html ........................................................................................................................ 14

Here’s what the Internet Will Look Like in 5, 10, and 15 Years, Business Insider, Sponsored by the

NCTA (Feb. 3, 2015), http://www.businessinsider.com/sc/future-of-the-Internet-in-5-years2015-2........................................................................................................................................... 14

Michael E. Porter and James E. Heppelmann, How Smart, Connected Products are Transforming

Competition, Harvard Business Review (from the November 2014 issue)

https://hbr.org/2014/11/how-smart-connected-products-are-transforming-competition ............. 14

vi

Rules

Rule 13.1 of the Supreme Court Rules ............................................................................................... 2

vii

PETITION FOR A WRIT OF CERTIORARI

Petitioner, James Mowery, seeks a writ of certiorari to review the judgment of the United

States Court of Appeals for the Fifth Circuit.

OPINIONS BELOW

The petitioner, Mr. James Mowery, respectfully petitions for a writ of certiorari to review the

judgment and opinion of the United States Court of Appeals for the Fifth Circuit, entered in the

above-entitled proceeding on November 16, 2018. The Opinion and Judgment are attached hereto

as composite Appendix 1. The unpublished opinion of the Court of Appeals for the Fifth Circuit can

be found in the Westlaw electronic database at United States v. James Mowery, 742 Fed. App’x 863

(2018). A copy of the unpublished Opinion is attached as Appendix 3.

The district court entered a Judgment reflecting this sentence on October 24, 2018. A copy

of the Judgment is attached hereto as Appendix 2.

JURISDICTION

Petitioner, James Mowery, entered a plea of guilty to Title 18, United States Code, §§

2252A(a)(5)(B) and 2256(8). Mr. Mowery was sentenced to 78 months’ imprisonment to be

followed by three years of supervised release by the Honorable Michael P. Mills, United States

District Judge for the Northern District of Mississippi. While on release, a petition to revoke Mr.

Mowery’s supervised release was filed. Mr. Mowery admitted to the violation and was revoked by

the district court. The district court entered a Judgment revoking Mr. Mowery’s supervised release

on October 24, 2018.

The United States Court of Appeals for the Fifth Circuit affirmed the judgment in an

unpublished per curiam opinion filed on November 16, 2018. No petition for rehearing was sought.

1

This Petition for Writ of Certiorari is filed within 90 days after entry of the Fifth Circuit

Judgment, as required by Rule 13.1 of the Supreme Court Rules. The jurisdiction of this Court to

review the judgment of the Fifth Circuit is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS

This petition involves two federal statutes: 18 U.S.C. 3553(a) and 18 U.S.C. § 3583(d):

18 U.S.C. § 3553(a)

(a)Factors To Be Considered in Imposing a Sentence.—The court shall impose a sentence

sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of

this subsection. The court, in determining the particular sentence to be imposed, shall consider—

(1) the nature and circumstances of the offense and the history and characteristics of

the defendant;

(2) the need for the sentence imposed—

(A) to reflect the seriousness of the offense, to promote respect for the law,

and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or vocational training,

medical care, or other correctional treatment in the most effective manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range established for—

(A) the applicable category of offense committed by the applicable category

of defendant as set forth in the guidelines—

2

(i) issued by the Sentencing Commission pursuant to section 994(a)(1)

of title 28, United States Code, subject to any amendments made to such guidelines by act of

Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing

Commission into amendments issued under section 994(p) of title 28); and

(ii) that, except as provided in section 3742(g), are in effect on the date

the defendant is sentenced; or

(B) in the case of a violation of probation or supervised release, the applicable

guidelines or policy statements issued by the Sentencing Commission pursuant to section 994(a)(3)

of title 28, United States Code, taking into account any amendments made to such guidelines or

policy statements by act of Congress (regardless of whether such amendments have yet to be

incorporated by the Sentencing Commission into amendments issued under section 994(p) of title

28);

(5) any pertinent policy statement—

(A) issued by the Sentencing Commission pursuant to section 994(a)(2) of

title 28, United States Code, subject to any amendments made to such policy statement by act of

Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing

Commission into amendments issued under section 994(p) of title 28); and

(B) that, except as provided in section 3742(g), is in effect on the date the

defendant is sentenced.[1]

(6) the need to avoid unwarranted sentence disparities among defendants with similar

records who have been found guilty of similar conduct; and

(7) the need to provide restitution to any victims of the offense.

***

3

18 U.S.C. § 3583(d)

The court may order, as a further condition of supervised release, to the extent that such condition-(1) is reasonably related to the 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

(3) is consistent with any pertinent policy statements issued by the Sentencing Commission

pursuant to 28 U.S.C. 994(a);

any condition set forth as a discretionary condition of probation in section 3563(b) and any other

condition it considers to be appropriate, provided, however that a condition set forth in subsection

3563(b)(10) shall be imposed only for a violation of a condition of supervised release in accordance

with section 3583(e)(2) and only when facilities are available. If an alien defendant is subject to

deportation, the court may provide, as a condition of supervised release, that he be deported and

remain outside the United States, and may order that he be delivered to a duly authorized immigration

official for such deportation. The court may order, as an explicit condition of supervised release for

a person who is a felon and required to register under the Sex Offender Registration and Notification

Act, that the person submit his person, and any property, house, residence, vehicle, papers, computer,

other electronic communications or data storage devices or media, and effects to search at any time,

with or without a warrant, by any law enforcement or probation officer with reasonable suspicion

concerning a violation of a condition of supervised release or unlawful conduct by the person, and

by any probation officer in the lawful discharge of the officer's supervision functions.

***

4

STATEMENT OF THE CASE

Mr. James Mowery was indicted January 10, 2008 on a one-count Indictment for possession

of child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and 2256(8). After pleading

guilty, Mr. Mowery was sentenced to 78 months’ imprisonment, along with three years of supervised

release. His supervised release has been revoked in both 2014 and 2018. At sentencing and

revocation, the court imposed the following special condition:

You shall not possess, or use, a computer or other Internet connection device

to access the Internet, except, with prior approval of your probation officer,

you may use the computer and the Internet in connection with authorized

employment.

An appeal to the Fifth Circuit followed, challenging the special condition as being overly

restrictive and involving a greater deprivation of liberty than reasonably necessary, pursuant to 18

U.S.C. §§ 3553(a) and 3583(d), and as violating Packingham v. North Carolina. On November 16,

2018, the Fifth Circuit affirmed the imposition of the special condition, finding that the special

condition was not overly restrictive. In addition, the Fifth Circuit stated that Mr. Mowery’s reliance

on Packingham v. North Carolina was misplaced because “Packingham does not – certainly not

‘plainly’ – apply to the supervised-release context.” Mowery, 742 Fed. App’x 863, 864.

Mr. Mowery, Petitioner, now seeks review by this Court to settle the entrenched circuit

split over whether Packingham applies to the supervised release context and to reach the merits of

his argument.

5

REASONS FOR GRANTING THIS PETITION

I. Courts below have reached irreconcilable interpretations of the rule set forth in

Packingham v. North Carolina, creating an entrenched and problematic circuit split.

In Packingham v. North Carolina, the United States Supreme Court held, 8-0 that a North

Carolina statute making it a criminal offense for convicted sex offenders to access social media

web sites was unconstitutionally overbroad and violated the First Amendment. 137 S. Ct. 1730,

1737 (2017).

A.

Packingham should apply in supervised release revocation hearings.

While Packingham mainly concerned an overbroad state statute, the Court also addressed

First Amendment rights in the context of social media and Internet. 137 S. Ct. at 1737 (explaining

that “to foreclose access to social media altogether is to prevent the user from engaging in the

legitimate exercise of First Amendment rights.”). The Fifth Circuit has twice held Packingham

does not apply in the supervised-release context because supervised release is part of the sentence,

rather than a post-sentence penalty. See United States v. Halverson, 897 F.3d 645, 658 (5th Cir.

2018); see also Mowery, 742 Fed. App’x 863.

This holding followed a D.C. Circuit and Second Circuit case which held the same –

Packingham does not apply to a supervised-release condition, as the ban in Packingham extended

beyond the completion of the sentence, whereas supervised release was part of the sentence. See

United States v. Rock, 863 F.3d 827, 831 (D.C. Cir. 2017); see also United States v. Browder, 866

F.3d 504, 511 n.26 (2d Cir. 2017), cert. denied, ––– U.S. ––––, 138 S.Ct. 693, 199 L.Ed.2d 570

(2018); United States v. Farrell, 2018 WL 1035856, at *2 (E.D. Tex. 2018) (“Stated

differently, Packingham dealt with a lifetime, state-wide statute restricting the Internet access of

all registered sex offenders,” while this case involves “individual conditions, which are effective

only for the duration of [the defendant's] supervised release.”). The Second Circuit, however, has

6

also addressed this issue in United States v. Eaglin, 913 F.3d 88, 96 (2d Cir. 2019), finding the

same type of Internet supervised release condition to be substantively unreasonable.

B. The special condition itself is overly broad because it effectively prohibits access

to the Internet.

Packingham also addressed First Amendment rights in a broader context – the Internet.

Observing that the Internet is still “so new, so protean, and so far reaching,” this Court noted that

any restrictions imposed today “might be obsolete tomorrow.” Packingham 137 S.Ct. at 1736.

The Supreme Court has made clear that the Internet is a vital outlet for free expression and a critical

mode of communication. Id. The Ninth Circuit has also admonished that, “Cutting off all access

to the Internet constrains a defendant's freedom in ways that make it difficult to participate fully

in society and the economy.” United States v. LaCoste, 821 F.3d 1187, 1191 (9th Cir. 2016).

It is widely acknowledged that district courts have wide, but not unfettered, discretion in

imposing terms and conditions of supervised release. United States v. Paul, 274 F.3d 155, 164 (5th

Cir. 2001). 18 U.S.C. § 3583(d) governs special conditions. See also United States v. Fields, 777

F.3d 799, 802–03 (5th Cir. 2014).

First, the condition of supervised release must be “reasonably related” to one of four

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. Paul, 274 F.3d at 165 (citing §§ 3583(d),

3553(a)(1)-(2)). 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). See United States v. Rodriguez, 558 F.3d 408, 412 (5th Cir. 2009). Moreover, the

7

sentence should consider the policy statements issued by the Sentencing Commission. United

States v. Miller, 665 F.3d 114, 126 (5th Cir. 2011).

Recently, the Fifth Circuit stated, “The Internet is the means by which information is

gleaned, and a critical aid to one’s education and social development” and called the Internet

“essential to functioning in today’s society.” United States v. Sealed Juvenile, 781 F.3d 747, 756

(5th Cir. 2015). Nowadays, life without Internet for the most people is unimaginable. Almost

every imaginable task can be completed via the Internet or through an Internet capable device.

From live, up-to-date current events and tweets from the President to learning about the Yorks and

Lancasters in the Wars of the Roses, depositing checks into a bank account to “facetiming 1” with

family across the world, the Internet has become “the town square for the global village of

tomorrow.”

Bill

Gates

Quotes,

brainyquote.com,

http://www.brainyquote.com/quotes/quotes/b/billgates384628.html (last visited March 16, 2016).

As currently written, the Internet-related special condition can only be satisfied in a very

narrow, limited circumstance, and only if both conditions are met: (1) Mr. Mowery must receive

prior approval from his probation officer and (2) the computer or Internet connection device may

only be used in connection with authorized employment. The first prong is reasonable. The second

prong is overly restrictive and unreasonable.

The Second Circuit has addressed a similar issue, remanding a case due to the overbroad

Internet supervised release restriction. Eaglin, 913 F.3d at 96 . The Court noted that “the substance

of the Internet ban imposed on Eaglin is even broader in its terms, if not in its application, than

that struck down in Packingham. Whereas the Packingham statute banned access only to certain

social networking sites where minors may be present, such as Facebook and Twitter, the condition

Phone “app” that allows users to connect with family and friends around the world using audio and video

capabilities on cellular phones.

1

8

imposed on Eaglin prohibits his access to all websites.” Id. It therefore implicates the same First

Amendment concerns that were at issue in Packingham.

While similar special conditions have generally been upheld by this Court and other

Circuits, this particularly worded special condition should be re-examined in light of Packingham.

As case law suggests, special conditions relating to Internet usage must be tailored either by scope

or by duration. See e.g., United States v. Duke, 788 F.3d 392, 399 (5th Cir. 2015).

1. Scope

One of the narrowing factors challenged in similar special condition cases is how broadly

the special condition restricts Internet usage and possession of Internet capable devices. The

special condition imposed here not only prohibits access to social media sites and forums on the

Internet as in Packingham2, but it prohibits any and all access to the Internet in violation of the

First Amendment except in very narrow, limited circumstances.

The Fifth Circuit explained that it will uphold “not unconditional” special conditions that

allow the probation officer to grant access to the Internet. Miller, 665 F.3d at 131. Absolute bans

are generally not upheld, unless there is an indication that the defendant may “use the Internet to

locate children and lure them to sexual abuse.” Id. at 129 n 69. (citing e.g., United States v.

Johnson, 446 F.3d 272, 274-75, 281-83 (2d Cir. 2006) (upholding similar condition because

Johnson was a sophisticated computer user who was using the Internet to lure children for sexual

purposes); see also United States v. Crandon, 173 F.3d 122, 128 (3d Cir. 1999) (recognizing need

for Internet bans are the strongest in cases where child molestation is involved); but see United

States v. Heckman, 592 F.3d 400, 408 (3d Cir. 2010) (vacating an unconditional lifetime ban on

Internet usage, observing that the defendant “has never been convicted of criminal behavior that

2

Packingham concerned a North Carolina statute, not a supervised release condition, that prohibited sex offenders

from accessing social media websites violated First Amendment.

9

involved use of the Internet either to lure a minor into direct sexual activity or to entice another to

exploit a child directly”).

Mr. Mowery did not attempt to lure children away for any purpose nor did he use the

Internet to initiate or facilitate the victimization of children, although he does have an underlying

conviction for possession of child pornography. However, this Court in Miller cited cases that

found Internet special conditions that called for approval from a probation officer as overly

restrictive when the defendant’s underlying conviction was only for possession of child

pornography. 665 F.3d at 128-29 n. 70 (“Other courts have similarly concluded that, although an

Internet ban subject to Probation Officer approval may in some cases impose a ‘greater deprivation

of liberty than is reasonably necessary’ to deter illegal conduct and protect the public, Internet bans

‘may be appropriate for those who use the Internet to initiate or facilitate the victimization of

children’”).

Similarly, in Mutter v. Ross, 811 S.E.2d 866 (W. Va. 2018), Mr. Ross, a parolee, challenged

a special condition which prohibited him from possessing or having contact with any computer or

electronic device with Internet access in violation of Packingham. The district court agreed that

the special condition was unconstitutional because it “necessarily entails [Mr. Ross] being

prohibited from accessing social media networking websites, as was the case in Packingham.”

Ross, 811 S.E.2d at 871 (parole condition imposing a complete ban on a parolee's use of the

Internet impermissibly restricts lawful speech in violation of the First Amendment to the United

States Constitution).

The Packingham Court found that the fatal flaw with the statute was its broad scope: it

prohibited substantially more speech than was necessary to protect children from sexual abuse

solicited over the Internet. By barring registered sex offenders from accessing social media, the

10

state restricted First Amendment activity that was not likely to lead to the sexual abuse of a child.

137 S. Ct. at 1737. By prohibiting sex offenders from using those websites, North Carolina with

one broad stroke bars access to what for many are the principle sources for knowing current events,

checking ads for employment, speaking and listening in the modern public square, and otherwise

exploring the vast realms of human thought and knowledge.

While acknowledging the scope of the special condition in Mr. Mowery’s case is not

absolute, it is so sweeping that it essentially bans use of the Internet or possessing any Internet

capable device, as in the Ross case. The special condition only allows Internet access or a device

capable of connecting to the Internet at a place of employment and the defendant must receive

approval of a probation officer, doubling the number of restrictions as in Miller.

Other

jurisdictions allow the defendant Internet usage or possession of an Internet capable device with

permission from the probation officer, but do not include a requirement of it being connected to

authorized employment. See e.g., United States v. Moran, 573 F.3d 1132, 1140-41 (11th Cir.

2009) (upholding supervised release condition requiring sex-offender defendant to obtain

probation officer's permission to access Internet); United States v. Zinn, 321 F.3d 1084, 1086-87

and 1093 (11th Cir. 2003) (upholding ban, with exception upon probation officer approval, where

defendant was convicted of possession of child pornography). There have been two Circuits that

have found Internet restrictions invalid. See United States v. Freeman, 316 F.3d 386 (3d Cir.

2003); United States v. Sofsky, 287 F.3d 122 (2d Cir. 2002).

Most importantly, as currently written and imposed, the supervised release condition

prevents even searching for employment. The special condition implies that Mr. Mowery must

already be employed. While being prevented from job searching online may not be that big of a

deal for some, it severely limits convicted felons from searching for jobs. Having a felony

11

conviction is difficult enough. Having a felony conviction and being a registered sex offender

makes finding work nearly impossible. The Internet has made job searching much more readily

available and accessible for people in Mr. Mowery’s position.

Limiting Internet access to usage in connection with work is overly restrictive. Because

the Internet is so prevalent in our society and convenient for accomplishing everyday tasks,

defendants should be allowed Internet access outside of the work environment as long as proper

monitoring measures are in place.

2. Duration

The Fifth and Seventh Circuits have concluded that absolute bans on Internet usage,

imposed for the rest of a defendant’s life, are not permissible conditions. Duke, 788 F.3d at 399;

Heckman, 592 F.3d at 409 (refusing to allow absolute ban); United States v. Holm, 326 F.3d 872,

877 (7th Cir. 2003) (same). On the opposite end, this Court has also upheld Internet bans for a

fixed term of years. See e.g., Paul, 274 F.3d at 160, 170 (upholding unconditional 3-year term of

supervised release prohibiting defendant from using “computers, the Internet, ... or any item

capable of producing a visual image” where defendant was convicted of possessing child

pornography); Moran, 573 F.3d at 1140-41 (upholding 3-year Internet special condition); Zinn,

321 F.3d at 1086-87, 1093 (upholding 3-year Internet ban); Johnson, 446 F.3d at 274, 283

(upholding unconditional 3-year Internet ban for sex offender). In Paul, the Fifth Circuit affirmed

the special condition banning Internet access and possessing an Internet connectable device

because the term of supervised release was limited to the three-year term of his supervised release.

274 F.3d at 167, 170.

Mr. Mowery contends that the special condition, as currently imposed, unreasonably

restricts his access to the Internet. For five years, Mr. Mowery cannot access the Internet or possess

12

a device that has Internet capabilities unless in connection with authorized employment. For sixty

months, Mr. Mowery will not be allowed to pay his bills online, text, email, or Facetime his wife’s

family in Peru, read the news, check the weather forecast, pull out a flashlight, make a phone call

or text, take a random picture or video of his wife and their kid, or google “how to change a flat

tire.” Mr. Mowery will not have the luxury of being able to send a quick text message or email to

his wife or family in case of an emergency.

3. The Internet is essential to functioning in today’s society, preventing Mr.

Mowery from merely accessing the Internet is unreasonable.

The importance of the Internet in today’s world is so essential to everyday tasks, a fiveyear ban on using the Internet or possessing a device that can access the Internet is simply

unreasonable.

The restriction completely bans any possession of or use of the Internet or a device capable

of connecting to the Internet unless it has been both approved by the probation officer and is used

only in connection with employment during the five-year term of supervised release. As imposed,

there is no circumstance that would allow use of a device capable of Internet access in a non-work

related environment for five years.

Mr. Mowery cannot speak nor can he listen in the modern square. See e.g., Packingham,

137 S. Ct. at 1737. Mr. Mowery does not have the ability to use Google Maps to navigate a new

city if he takes a wrong turn. Further, Mr. Mowery is precluded from using the Internet to

accomplish routine, daily activities, such as ordering food, paying a bill, looking up the weather

forecast, filing taxes, or catching up on the daily news, much less applying for a job. Having the

figurative world at his fingertips, Mr. Mowery is metaphorically stuck in a glass box.

Under no circumstance, no matter how practical, innocent, or necessary for Mr. Mowery’s

function in society, can he use a computer or device capable of accessing the Internet in his

13

everyday routine. Currently, Mr. Mowery cannot use many watches, telephones, televisions,

refrigerators, or even automobiles without violating this condition of supervised release.

Five years from his release, there is no telling how consumer products will incorporate the

Internet into their products. But, it can be assumed that Internet technology will only become more

improved, more accessible, and more integrated in everyday items. See, e.g., Carina Kolodny,

Here's what the Internet Could Look Like in 2025, Huffington Post (last updated March 12, 2014),

http://www.huffingtonpost.com/2014/03/11/heres-what-the-Internet-c_n_4943051.html; see also,

Here’s what the Internet Will Look Like in 5, 10, and 15 Years, Business Insider, Sponsored by

the NCTA (Feb. 3, 2015), http://www.businessinsider.com/sc/future-of-the-Internet-in-5-years2015-2; see also Michael E. Porter and James E. Heppelmann, How Smart, Connected Products

are Transforming Competition, Harvard Business Review (from the November 2014 issue)

https://hbr.org/2014/11/how-smart-connected-products-are-transforming-competition.

In short, the Fifth Circuit has wrongly affirmed the special condition that prohibits access

to the Internet and has done so in a way that will erroneously expose untold defendants to an

outright ban on their First Amendment rights.

CONCLUSION

This Court should grant review for two compelling reasons: (1) the Fifth Circuit and other

Circuits are not allowing Packingham issues to be heard in the context of supervised release

hearings; and (2) this case is the perfect opportunity for this Court to provide guidance on special

conditions concerning the Internet and First Amendment rights.

Defendants have a First

Amendment right to be able to email, blog, and discuss the issues of the day on the Internet while

on supervised release. Moreover, one of the conditions of supervised release is that he remain

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employed: to search for a job in 2019, the Internet is nearly essential, as the Court

in Packingham recognized. 137 S.Ct. at 1737.

Petitioner requests that this Court grant his Petition for Writ of Certiorari and allow him to

proceed with briefing on the merits and oral argument.

Respectfully submitted,

CLAUDE KELLY

Interim Federal Public Defender

______________________________

M. SCOTT DAVIS

Assistant Federal Public Defender

N. and S. Districts of Mississippi

1200 Jefferson Avenue, Suite 100

Oxford, Mississippi 38655

Telephone: (662) 236-2889

Facsimile: (662) 234-0428

Attorney for Petitioner-Defendant

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