Opposition Brief — Renzo Alegre, Petitioner v. United States

No. 22-7471

________________________________________________________________

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

RENZO ALEGRE, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

NICOLE M. ARGENTIERI

Acting Assistant Attorney General

TYLER ANNE LEE

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

________________________________________________________________

QUESTION PRESENTED

Whether petitioner is entitled to plain-error relief on his

claim that the district court violated the First Amendment by

imposing a special condition of supervised release under which

petitioner -- who was convicted of possessing child pornography in

violation of 18 U.S.C. 2252(a)(4)(B) and (b)(2) -- may access a

computer only in connection with authorized employment and with

the prior approval of the court.

(I)

ADDITIONAL RELATED PROCEEDINGS

United States District Court (S.D. Fla.):

United States v. Renzo Alegre, No. 21-cr-60041 (Jan. 20, 2022)

United States Court of Appeals (11th Cir.):

United States v. Renzo Alegre, No. 22-10260 (Dec. 30, 2022)

(II)

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 22-7471

RENZO ALEGRE, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

OPINION BELOW

The opinion of the court of appeals (Pet. App. A1) is not

published in the Federal Reporter but is available at 2022 WL

18005680.

JURISDICTION

The judgment of the court of appeals was entered on December

30, 2022.

On March 6, 2023, Justice Thomas extended the time

within which to file a petition for a writ of certiorari to and

including May 1, 2023, and the petition was filed on that date.

The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

2

STATEMENT

Following a guilty plea in the United States District Court

for the Southern District of Florida, petitioner was convicted of

possessing

child

pornography,

§ 2252(a)(4)(B) and (b)(2).

in

violation

Pet. App. A3, at 1.

of

18

U.S.C.

He was sentenced

to 48 months of imprisonment, to be followed by 20 years of

supervised release.

Id. at 2-3.

The court of appeals affirmed.

Pet. App. A1, at 1-6.

1.

As part of an investigation of computer files believed

to depict the sexual exploitation of children, law enforcement

officers executed a search of petitioner’s residence and seized

his computer and phone, which contained over 100 videos of child

pornography.

Pet. App. A1, at 1.

In total, petitioner possessed

244 videos and 4000 photos of child pornography, the majority of

which involved bestiality, sadomasochism, or infants.

Petitioner

waived

his

Miranda

rights

and

admitted

Id. at 3.

to

law

enforcement that he had used his computer to receive and download

child pornography.

Ibid.

A federal grand jury in the Southern District of Florida

indicted petitioner for possessing child pornography, in violation

of 18 U.S.C. 2252(a)(4)(B) and (b)(2).

See Pet. App. A1, at 1.

Petitioner pleaded guilty to that offense without a plea agreement.

See ibid.

2.

The Probation Office’s presentence report calculated an

advisory Sentencing Guidelines range of 97 to 121 months, based on

3

a total offense level of 30 and a criminal history category of I.

Presentence Investigation Report (PSR) ¶ 63.

recommended

several

special

conditions

for

The report also

supervised

release

after petitioner’s release from prison, including that petitioner

“shall not possess or use any computer; except that [petitioner]

may, with the prior approval of the Court, use a computer in

connection with authorized employment.”

PSR ¶ 79.

Petitioner filed objections to the presentence report, but he

did not object to any of the proposed conditions for supervised

release.

D. Ct. Doc. 46, at 1-3 (Dec. 20, 2021).

Petitioner also

filed a separate motion for a downward variance, in which he asked

the court to “sentence him to a 5-year term of probation with a

special condition of 1-year home detention, and all the recommended

conditions of supervision contained in the” in the presentence

report.

D. Ct. Doc. 41, at 14 (Dec. 17, 2021).

The motion

represented that the presentence report “lists several recommended

conditions of supervision that promote respect for the law and

provide just punishment for the offense,” “includ[ing]

* * *

restricted use of computer and electronic storage devices.”

Id.

at 12.

At

the

sentencing

hearing,

the

district

court

rejected

petitioner’s proposed sentence of probation, but (consistent with

the

government’s

downward

variance

imprisonment.

recommendation)

and

imposed

the

a

court

sentence

Pet. App. A2, at 77.

granted

a

of

months

48

slight

of

The court also sentenced

4

petitioner to 20 years of supervised release and specifically

stated that petitioner would be subject to the special conditions

of

supervised

presentence

report,

including the special condition on “computer possession.”

Id. at

77-78.

release

“as

noted

in”

the

Petitioner did not object to the sentence.

See id. at 79-

80.

3.

of

Petitioner appealed, asserting that the special condition

supervised

release

restricting

his

computer

access

was

unconstitutional under this Court’s decision in Packingham v.

North Carolina, 582 U.S. 98 (2017).

Pet. C.A. Br. at 65-67.

Petitioner acknowledged that the court of appeals had already

“rejected the argument that a computer restriction” like his is

“plainly unconstitutional” under Packingham.

Id. at 66.

He

explained

[the]

to

that

he

was

nonetheless

preserve it for further review.”

“rais[ing]

issue

Id. at 67.

In an unpublished, per curiam opinion, the court of appeals

rejected

petitioner’s

constitutional

condition of supervised release.

challenge

to

the

Pet. App. A1, at 5-6.

special

The court

explained that it “will not review an argument, even for plain

error, when the party invited the error that he complains of on

appeal.”

Id. at 5.

And the court determined that petitioner here

had “invited” the district court to impose the challenged condition

of supervised release “when he affirmatively requested and argued

for his computer restriction in requesting a sentence of nonimprisonment.”

Id. at 6.

The court of appeals additionally

5

observed that, “even reviewing for plan error, [petitioner’s]

claim fails, as it is precluded by” United States v. Bobal, 981

F.3d 971 (11th Cir. 2020), cert. denied, 141 S. Ct. 2742 (2023),

Pet. App. A1, at 6 -- a post-Packingham decision in which the court

had explained that a “district court does not commit plain error

by imposing a restriction on computer usage as a special condition

of supervised release,” 981 F.3d at 978.

ARGUMENT

Petitioner

renews

his

contention

(Pet.

17-20)

that

the

district court violated the First Amendment when it imposed a

special condition of supervised release restricting his computer

access.

That contention is not properly presented in this case

because the court of appeals determined that petitioner had invited

the alleged error by asking the district court, in his motion for

a downward variance, to impose the restriction on computer access.

While the court also observed that petitioner’s challenge would

fail on plain-error review, that observation is correct and does

not implicate a division in the circuits or otherwise warrant this

Court’s review.

The court of appeals’ unpublished, per curiam

decision accordingly does not warrant further review.

1.

Petitioner’s constitutional challenge to the special

condition restricting computer access is not properly presented

because the court of appeals did not address it, instead finding

that he was not entitled to review of it pursuant to the doctrine

of “invited” error.

Pet. App. A1, at 6.

6

This Court has recognized the “valu[e]” of the “‘invited

error’ doctrine,” under which “‘a party may not complain on appeal

of errors that he himself invited or provoked the [district] court

* * *

to commit.’”

United States v. Wells, 519 U.S. 482, 488

(1997) (citation omitted; brackets in original).

The court here

accordingly explained that it “will not review an argument, even

for plain error, when the party invited the” alleged error.

App. A1, at 5.

Pet.

And the court observed that, in this case,

petitioner “invited” the district court to impose the supervisedrelease

condition

that

he

now

challenges

by

“affirmatively

request[ing] and argu[ing] for his computer restriction” in his

motion for a downward variance.

Pet. App. A1, at 5-6.

In asking the district court to impose all of the special

conditions on supervised release listed in the presentence report

as conditions on a sentence of probation and home confinement,

petitioner’s motion specifically described the condition calling

for the “restricted use of computer and electronic storage devices”

as one that would “promote respect for the law and provide just

punishment for the offense.” D. Ct. Doc. 41, at 12. And petitioner

did not make any effort to disavow that position, or otherwise

object to the computer restriction, when the district court imposed

all of the special conditions of supervised release as part of his

current sentence.

See Pet. App. A2, at 79-80.

As a result,

7

neither

of

the

courts

below

squarely

addressed

petitioner’s

constitutional claim on the merits.

This Court is one “of review, not of first view,” and it

ordinarily does not address issues that were not passed upon below.

Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005).

That general

rule should apply with special force here because, had petitioner

raised his objection at the appropriate time, it might have been

resolved under the statute governing conditions on supervised

release, 18 U.S.C. 3583.

Under that statute, a special condition

on supervised release must “involve[] no greater deprivation of

liberty than is reasonably necessary for the purposes” of the

sentencing statutes.

Had

petitioner

18 U.S.C. 3583(d)(2).

raised

his

objection

to

the

computer

restriction before the district court, that court could have

determined whether any additional case-specific tailoring -- such

as the educational exception he now proposes (Pet. 3, 19, 21) -was

appropriate

as

a

statutory

matter.

Indeed,

even

now,

petitioner could seek a modification of the special condition from

the district court if he believes it is warranted under the

statute.

See 18 U.S.C. 3583(e).

Petitioner, who does not address

the invited-error doctrine at all, presents no sound reason for

this Court to address a constitutional issue that was not decided

by the court of appeals and that could have been -- and still could

be -- obviated by a statutory claim.

8

2.

Petitioner

nonetheless

asserts

(Pet.

10-17)

that

certiorari is warranted because the decision below implicates

disagreement in the circuits regarding how Packingham v. North

Carolina, 582 U.S. 98 (2017) should be applied to offenders on

supervised release.

That assertion lacks merit. And petitioner

has not identified any court that would grant plain-error relief

in the circumstances here.

a.

In Packingham, this Court invalidated a North Carolina

law that categorically prohibited all registered sex offenders

from accessing certain social-media websites, reasoning that “to

foreclose access to social media altogether is to prevent the user

from

engaging

rights.”

in

the

legitimate

exercise

of

First

Amendment

582 U.S. at 108; see id. at 101, 105-108.

The Court

found that North Carolina had not “met its burden to show that

[its] sweeping law,” id. at 108 -- which was applicable even to

those “who already ha[d] served their sentence and [we]re no longer

subject to the supervision of the criminal justice system,” id. at

107

--

was

“necessary

or

legitimate

to

serve”

the

State’s

“preventative purpose of keeping convicted sex offenders away from

vulnerable victims,” id. at 108.

The Court specifically cautioned, however, that its “opinion

should not be interpreted as barring a State from enacting more

specific laws than the one at issue.”

107.

Packingham, 582 U.S. at

In a concurrence, Justice Alito elaborated on the point,

observing that “[b]ecause protecting children from abuse is a

9

compelling state interest and sex offenders can (and do) use the

internet to engage in such abuse, it is legitimate and entirely

reasonable for States to try to stop abuse from occurring before

it happens.”

b.

Id. at 112-113.

The court of appeals correctly determined that “even”

looking past the invited-error doctrine, and “reviewing for plain

error,”

petitioner

Packingham

would

not

be

entitled

to

Pet.

App.

A1,

at

Plain-error

claim.

6.

relief

on

his

relief

requires, inter alia, that an error be “clear or obvious,” Puckett

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

And as the court of

appeals previously explained in United States v. Bobal, 981 F.3d

971 (11th Cir. 2020), cert. denied, 141 S. Ct. 2742 (2021) -- which

it observed would “preclude[]” plain-error relief for petitioner

-- the issue in Packingham was distinct from the issue here.

Pet.

App. A1, at 6.

In Bobal, the court of appeals denied plain-error relief to

a defendant challenging an identical restriction.

981 F.3d at

977-978.

The court explained that, “even after Packingham, a

district

court

does

not

commit

plain

error

by

imposing

a

restriction on computer usage as a special condition of supervised

release.”

Id.

at

978.

Bobal

observed

that

while

the

law

invalidated in Packingham “restricted sex offenders even after

they had completed their sentences” and “applied to all registered

sex offenders, not only those who had used a computer or some other

means

of

electronic

communication

to

commit

their

offenses,”

10

supervised-release

conditions

do

“not

extend

beyond

[an

offender’s] sentence,” and courts may limit their application to

offenders for whom continued unfettered access to a computer poses

particular risks.

Id. at 977.

And it noted that Packingham had

expressly declined to address whether the First Amendment allows

“more

specific

laws

than

the

one

at

issue.”

Ibid.

(quoting

Packingham, 582 U.S. at 107).

It

is

precludes

thus

the

far

from

“clear

supervised-release

or

obvious”

that

Packingham

restriction

that

petitioner

challenges, which is specific to his particular case and thus even

narrower than the sort of “more specific laws” that may still be

permissible under Packingham.

582 U.S. at 107.

Moreover, the

court of appeals’ own precedent in Bobal is a further impediment

to

plain-error

relief,

as

any

error

in

the

district

court’s

decision could not have been deemed “clear or obvious” where it

would be contrary to circuit precedent -- as well as precedent in

other circuits.

Cf., e.g., United States v. Williams, 469 F.3d

963,

Cir.

966

(11th

2006)

(per

curiam)

(observing

that

even

“[w]here neither the Supreme Court nor th[e court of appeals] has

ever resolved an issue, and other circuits are split on it, there

can be no plain error in regard to that issue.”); (brackets in

original; citation omitted); United States v. Teague, 443 F.3d

1310, 1319 (10th Cir.) (similar), cert. denied, 549 U.S. 911

(2006); United States v. Williams, 53 F.3d 769, 772 (6th Cir. 1995)

(similar), cert. denied, 516 U.S. 1120 (1996).

11

c.

Petitioner errs in contending (Pet. 10-17) that the

court of appeals’ decision implicates a conflict in the circuits.

As Bobal explained and petitioner does not meaningfully dispute

(Pet. 10-11), the Fifth, Eighth, and D.C. Circuits have also

recognized that, “even after Packingham, a district court does not

commit plain error” by imposing a special condition on supervised

release like the one in this case.

981 F.3d 978 (citing United

States v. Perrin, 926 F.3d 1044, 1049–1050 (8th Cir. 2019); United

States v. Halverson, 897 F.3d 645, 658 (5th Cir. 2018); United

States v. Rock, 863 F.3d 827, 831 (D.C. Cir. 2017)).

Petitioner cites (Pet. 11) the Third Circuit’s decision in

United States v. Holena, 906 F.3d 288 (2018), in which the Third

Circuit took the view that the district court’s supervised-release

conditions had “preclude[d] access to a large number of websites

that are most unlikely to facilitate the commission of a sex crime

against a child.”

Id. at 295 (quoting Packingham, 582 U.S. at 114

(Alito, J., concurring)).

discretion

review,

not

But that decision involved abuse-of-

plain-error

review.

See

id.

at

291.

Furthermore, while the decision stated that “blanket internet

restrictions will rarely be tailored enough to pass constitutional

muster” under Packingham, ibid., that does not foreclose the

possibility

petitioner’s

that

they

may

be

child-pornography

appropriate

crimes

enticement crime at issue in Holena.

in

here

some

cases,

and

differ

from

the

12

Petitioner also errs in asserting (Pet. 14-16) a conflict

with the Second Circuit’s decision in United States v. Eaglin, 913

F.3d 88 (2019).

Like Holena, Eaglin was decided under the abuse-

of-discretion standard because the defendant properly raised his

objection before the district court.

Id. at 90, 93.

Eaglin also

emphasized that the defendant had not been “convicted of a sex

crime involving Internet use,” and that the court was unable to

find record evidence establishing that a “total Internet ban” was

“warranted by Eaglin’s criminal history or characteristics, the

need for deterrence or to protect the public, or the court’s desire

to provide necessary rehabilitative services,” id. at 97, 99.

Petitioner’s crime, in contrast, involved downloading hundreds of

videos and thousands of photos depicting child pornography, “the

vast majority of which involved ... bestiality or sadomasochism or

infants and penetration.” Pet. App. A1, at 3; see Eaglin, 913 F.3d

at

97

(accepting

that

even

a

“total

Internet

ban”

might

be

justified in “highly unusual circumstances”).

3.

Finally,

even

if

the

question

presented

otherwise

warranted this Court’s review, this case would be a poor vehicle

for considering it. At a minimum, the court of appeal’s invocation

of the invited-error doctrine and the plain-error standard of

review would complicate this Court’s consideration of petitioner’s

constitutional challenge.

And as noted above, and recognized in

Bobal, a defendant can “ask the district court to modify the terms

of his supervised release” pursuant to 18 U.S.C. 3583(e)(2) and

13

Federal Rule of Criminal Procedure 32.1(c), 981 F.3d at 977, which

petitioner has not done.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELIZABETH B. PRELOGAR

Solicitor General

NICOLE M. ARGENTIERI

Acting Assistant Attorney General

TYLER ANNE LEE

Attorney

SEPTEMBER 2023