Petition for Writ of Certiorari — John Pedelahore, Petitioner v. United States

Case: 23-60264 Document: 70-1 Page:1 Date Filed: 02/06/2024

Gnited States Court of Appeals

for the SFitth Circuit

United States Court of Appeals

Fifth Circuit

FILED

NN February 6, 2024

Lyle W. Cayce

UNITED STATES OF AMERICA, Clerk

Plaintiff—Appellee,

versus

JOHN PEDELAHORE,

Defendant—Appellant.

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 1:15-CR-24-1

Before KING, JONES, and OLDHAM, Circuit Judges.

PER CURIAM:”

John Pedelahore appeals the district court’s revocation of his

supervised release and imposition of a sentence of thirty months of

imprisonment followed by eight years of supervised release. Pedelahore’s

supervision was revoked after he violated the conditions prohibiting him

from using internet-capable devices without prior permission and requiring

him to truthfully answer his probation officer’s inquiries. He contends that

* This opinion is not designated for publication. See 5TH Cir. R. 47.5.

Case: 23-60264 Document: 70-1 Page:2 Date Filed: 02/06/2024

No. 23-60264

his resulting sentence is substantively unreasonable because he committed

only technical violations of the supervision conditions and did not attempt to

access any illegal content online. He further contends that a custodial

sentence is ineffective for reducing criminality and not in line with the

purpose of rehabilitation.

? As part of Pedelahore’s supervised release, the district court imposed multiple

special conditions, including, inter alia, the conditions that Pedelahore (1) may not use any

Internet-capable device, unless granted permission in advance by his probation officer, (2)

may not access any computers or other forms of wireless communications via third parties,

and (3) may not obtain or maintain any employment where he has access to any Internetcapable devices, unless granted permission in advance by his probation officer. This

circuit’s jurisprudence has made it clear that restrictions on the use of computers or the

Internet must be “narrowly tailored either by scope or by duration” as to not preclude a

defendant “from meaningfully participating in modern society.” United States ». Duke, 788

F.3d 392, 399-400 (5th Cir. 2015); see, e.g., United States v. Naidoo, 995 F.3d 367, 384 (Sth

Cir. 2021); United States v. Sealed Juvenile, 781 F 3d 747, 757 (5th Cir. 2015). Even in cases

where restrictions have been narrowed by permitting access when the defendant obtains

the prior approval of the probation officer, such approval must still be applied ‘in such a

way as to give defendants meaningful access to computers or the Internet.” United States

v. Becerra, 835 F. App’x 751, 756 (5th Cir. 2021) (citing Sealed Juvenile, 781 F.3d at 756-

57); see also United States v. Clark, 784 F. App’x 190, 193-94 (5th Cir. 2019) (finding

unreasonable a condition requiring the defendant to request approval every time he sought

to use a computer or access the Internet); Vaidoo, 995 F.3d at 384 (affirming condition

“subject to [the court’s} interpretation that individual approval is not required every single

time [the defendant] must use a computer or access the Internet”).

Here, Pedelahore does not argue, either below or on appeal, that any of the special

conditions imposed upon him are, in and of themselves, unreasonable. Instead, Pedelahore

only argues that the district court “failed to account for mitigating factors that should have

received significant weight and erred in balancing the statutory sentencing factors,” such

that it led to a sentence that is “greater than necessary.” As such, we consider any such

argument challenging the reasonableness of the individual conditions of supervised release

waived. See United States v. Jackson, 426 F 3d 301, 304 n.2 (Sth Cir. 2005); United States v.

Brace, 145 F.3d 247, 255-56 (5th Cir. 1998) (‘It goes without saying that we are a court of

review, not of original error. Restated, we review only those issues presented to us; we do

not craft new issues or otherwise search for them in the record.”).

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No. 23-60264

Because Pedelahore neither objected to his sentence nor requested a

sentence below thirty months at his revocation hearing, we review only for

plain error. See United States v. Napper, 978 F.3d 118, 124 (5th Cir. 2020). To

demonstrate plain error, Pedelahore must identify (1) an error that has not

been intentionally relinquished or forfeited (2) that is clear or obvious, rather

than subject to reasonable dispute, and (3) that affects his substantial rights.

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

Pedelahore fails to show reversible error. His thirty-month revocation

sentence is within the three-year statutory maximum for a Class B felony. See

United States v. Walker, 742 F.3d 614, 616 (Sth Cir. 2014); 18 U.S.C.

§ 3583(e)(3). Additionally, in selecting the sentence, the district court

considered the appropriate 18 U.S.C. § 3553(a) factors as well as the

nonbinding policy statements in Chapter 7 of the Guidelines. Pedelahore fails

to show that the district court clearly or obviously erred in weighing or

balancing the sentencing factors. See United States v. Warren, 720 F.3d 321,

332-33 (5th Cir. 2013). The district court acknowledged that its sentence is

above the applicable advisory Sentencing Guidelines range. In explaining its

decision to deviate from the advisory term, the district court explained that

it took into “serious consideration” the danger that Pedelahore will reach out

to others again in the future. The district court also noted that this is

Pedelahore’s third revocation—with some of his past revocations involving

the same or similar conduct for which he was originally convicted—and

represents yet another breach of the court’s trust. See Mapper, 978 F.3d at

125; of United States v. Whitelaw, 580 F.3d 256, 265 (5th Cir. 2009) (holding

revocation sentence twenty-six months above policy statement range but

within statutory maximum not to be plain error). We cannot say the district

court erred, let alone plainly erred, in its decision.

The judgment is AFFIRMED.