Petition for Writ of Certiorari — Christopher Lee Parker, Petitioner v. United States

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OF AMERICA

CHRISTOPHER LEE PARKER

Petitioner-Defendant

Vv.

UNITED STATES OF AMERICA

Respondent

On Petition for Writ of Certiorari from the

United States Court of Appeals for the Fifth Circuit.

Fifth Circuit Case No. 24-60211

PETITION FOR WRIT OF CERTIORARI

Omodare B. Jupiter (MB #102054)

Federal Public Defender

N. and S. Districts of Mississippi

2510 14th Street, Suite 902

Gulfport, Mississippi 39501

Telephone: (228) 865-1202

Facsimile: (228) 867-2907

Email: omodare_jupiter@fd.org

Leilani Tynes (MB #100074)

Assistant Federal Public Defender

Email: leilani_tynes@fd.org

Attorneys for Defendant/Petitioner

QUESTION PRESENTED FOR REVIEW

Whether the Fifth Circuit erred by dismissing Mr. Parker’s appeal based on

the waiver of appeal provisions in his Plea Agreement.

PARTIES TO THE PROCEEDING

All parties to this proceeding are named in the caption of the case.

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW ........cscsssssssesecscseeseseeesceceetseseetscaeeesenesees ii

PARTIES TO THE PROCEEDING... escesesesesessesesrenecenseseaeseveeesseneessenceseeaeaes iii

TABLE OF CONTENTS ....0. oe eseesssesesesesssecssesesessscoescseucorsesesssssssrsssssscenssesssvaeeseres iv

TABLE OF AUTHORITIES... ecsssssssssesstereeseseesescecseressssesesesaceeseseessesesessesesees vi

T. OPINIONS BELOW Qu... ccs csesnenereeesenenesecnsssasacacsssensseeseesseesaaeeseasereneeeseas 1

II. JURISDICTIONAL STATEMENT ...0....... cc secsecseescscscscssssscssseescesseneveseceenenseaes 3

III. CONSTITUTIONAL PROVISIONS INVOLVED .........ceseesseeeeeeeeeeteneeeeeseeeees 4

TV. STATEMENT OF THE CASE... ccsssssssssesescscsssescsescseessceeacecaceseeneeseseavecnenss 5

A. Basis for federal jurisdiction in the court of first instance ..........sccceeesseserereees 5

B. Statement of material facts 0... esecececesesesssecseeueececsesetseseeressesseeasnssessseneerass 5

1. The challenged special condition of supervised release ............cccssceseseeseeseeeeeees 5

2. The Plea Agreement and the waiver of appeal provision ............sseseeeceeeseeeeeees 6

V. ARGUMENT: Review on certiorari should be granted in this case..............06 7

A. Introduction ....... ccc ssceesseererenecessseraseenesesssesenesesssenesssasasecsesenesesneseneeseaes 7

B. The waiver of appeal was made unknowingly .........ccccceesssseceseeseeessesseenseneeees 8

C. The waiver of appeal provision is unconstitutional] .............:cccssssseeseneseeteeeseees 9

1. Fifth Amendment due process and Fourteenth Amendment equal protection

rights render the waiver of appeal provision unenforceable under the facts of Mr.

Parker’s Case ....csscscsssessssssssssesessescscscscsssssesscucsonserentacnsasseneesenseesraveseneseesecsenenaneeteteeneees 9

2. A lifetime ban on the use of “any internet-capable device” without advance

permission and approval is an unconstitutional restriction on Mr. Parker’s First

Amendment rights ..0..0...ccccessseseeccecsseeseseeseeseeeesceeeesseceescescnsseaseesseeeesseeseseeeeeeeseenenes 11

a. Packingham v. North Carolina, 582 U.S. 98 (2017) established a fundamental

right to access the Internet ...........cccsssssssesetsssesessesesssceseseresceeesecseseseeseseeeeceeeeeseeeeeeees 11

b. The Fifth Circuit has not yet considered the impact of Packingham beyond

Plain error LeVIOW 20... ce eessesescsseseeesssceeescoeneneacuesetevseecensseacssetssseeeesenasrerssseeenentees 13

c. The approaches taken by other circuits are instructive ......... ce cesseeseeeteeeeeeeeeees 14

3. Conclusion — the waiver of appeal provision is unconstitutional «0.0.00... 17

D. The special condition of supervision at issue is not covered by the waiver of

Appeal PLOVISION 0.0... eeeceseeceecneesenesesceseaerseseceaccscescseeseseaseeenecseaeseeecseeeesseeseseeeesenes 17

1. Introduction ........ccccecsccscsessesecsccscesscessesecsecscssscssceseseessesseessesscssetssasseeeseeseesenensees 17

2. Special conditions of supervised release must be narrowly tailored to avoid

unreasonable restrictions of a defendant’s liberty ..........sccssecsseseeecsesseecterseneseees 18

3. The lifetime ban on Mr. Parker’s use of “any internet-capable device” without

prior United States Probation Office approval is an impermissible condition of

Supervised release... cesecscesssesessesscssenscseseesesscescsseseseesesesceeesesesssensesceneaceesssaeeeesenes 19

a. Precedent establishes that the supervised release condition is impermissibly

LESETICLIVE v.o.sessseeeseserssenereecenesescnesessnesenseseesessesesecesueesnscasusesscsseseeseacusesesessaetseasacees 19

b. Access to the Internet and Internet-capable devices is fundamental to

functioning in Modern SOCiety 0.0.0... eeceesesseeeeceececescenseceecessscetsescesceusesseseeseaceaeeacees 20

VI. CONCLUSION 0.0. eeseeeeesereeeesecsecsensscacnenensscnescsenenseseasasnsseseseaeersesenesesenenes 23

CERTIFICATE OF SERVICE .........ssscssssssscssesececsssseseecsesesenesceeveseacsesensessaserseacacers 24

(Appendices 1 and 2)

TABLE OF AUTHORITIES

Page(s)

Cases:

Carpenter v. United States,

585 U.S. 296 (2018)... ceeescssecssessessessesceseessesssesssaescecsessssensessuestesesessescssscseesanenses 20

Griffin v. Illinois,

B51 U.S. 12 (1956) oo. cescescsecsseseessessssceeesscssessesseesesssenseeescatessesessssereseuessecsseeses 11

Packingham v. North Carolina,

582 U.S. 98 (2017) on. eecessssessensssesesecssessseeseescssesssccseesenseseeneenee 11, 12, 13, 14, 15, 16

Schweiker v. Wilson,

450 U.S. 221, 101 S. Ct. 1074 (1981) oe ceecssesecccssssceceesesssecssscsessesecseesessesseeeeeee 4

United States v. Becerra,

835 F. App’x 751 (Sth Cir, 2021)... escssessessssessessscsseeeessesavsetsesacesaesesees 16, 19

United States v. Caillier,

80 F.4th 564 (Sth Cir. 2023)... ccscsseseecssssessereesssssesceeeseesesssesseseesesenss 13, 18, 21

United States v. Clark,

784 F. App’x 190 (Sth Cir. 2019)... cc eccsessessesesecsecseeneesessessessesessesesssesseesease 19

United States v. Duke,

788 F.3d 392 (Sth Cir. 2015)... cccccsscssssssscssesssscssescsasssseseseseeenssnssesstensseees 18, 20

United States v. Eaglin,

913 F.3d 88 (2d Cir. 2019) ec ccsccssssessesessscssescesenessscesessssessereeesess 13, 14, 15, 21

United States v. Ellis,

720 F.3d 220 (Sth Cir, 2013)... eesesessssssscsscscsscesesesseeseesseaeeseescsecseeecsessessessseaees 21

United States v. Ellis,

984 F.3d 1092 (4th Cir, 2021)... ccessssssscessssseseeseecsesseasessseseenessseseesesseeeness 13, 15

United States v. Halverson,

vi

897 F.3d 645 (Sth Cir. 2018)... cccscssssesessseesseessesesssesessseaesersseeteseeeneneetenes 13, 16

United States v. Holena,

906 F.3d 288 (3d Cir, 2018)... ccsccsssssssessesesssesscsessesesssesseesencseceeaseeses 13, 15, 16

United States v. Melancon,

972 F.2d 566 (Sth Cir. 1992)... ccccccsccssssesssscscssssescsesserscssenssrssessecess 7, 8,9, 10, 11

United States v. Melton,

753 F. App’x 283 (Sth Cir. 2018)... csscsssssssscssssssssessesessssesscsecseessensenssevscsesseree 19

United States v. Naidoo,

995 F.3d 367 (Sth Cir. 2021)... ccsssssscssescsseseesessscseeseeresensensssesscessnessesesecs 16, 19

United States v. Page,

No. 22-40722, 2023 WL 4015261 (Sth Cir. June 14, 2023) oo... cesessssereseereneeee 19

United States v. Sealed Juvenile,

781 F.3d 747 (Sth Cir. 2015)... eccsessssessessescscensscrsssessessessscsseeseserssesssstscessssee 20

United States v. Sierra,

No. 91-4342 (Sth Cir. Dec. 6, 1991) oo. cccescscesesessessesecsseseescsscssesssesseneee 8, 9, 10

United States v. Taylor,

No. 23-40273, 2024 WL 1134728 (Sth Cir. March 15, 2024)... ceccesesesessesetsees 19

United States v. Winding,

817 F.3d 910 (Sth Cir. 2016) 00... ce ccccessssssssscsscsssesessessesessessessesecsessessesesseesasseenes 18

Statutes:

18 U.S.C. § 2252 ee ccscscsssesessessesseseseesesescesacsesssessesscssssesasssssseaeesseaesscsessseseeeees 1,5

18 U.S.C. § 3231 ec eecsesssscseescsscssessssesessesssssescsscseecseseseessensseesneesscsassesecsesseeesaessenees 5

18 U.S.C. § 3553 oe cecsesesssscescesceceerensecenessvseessessensesesseseceescesssasessesssessensessessseaaes 18

18 U.S.C. § 3583 voc eeecccsscsssesesssessesssssesssssecsecssensessecssteneseuessseseceseessseseeseseserseees 15, 18

18 U.S.C. § 3742 ec ceccssssssecssesssscesssscsessvscscesacsecseesssesesessessesesesesssaeeseeacscesesssseeneeaee 6

28 U.S.C. § 1254 ccc cscscsssssescscseseaveresseneasssnesseesnenesensssssseacsesesenseacseesececieeneees 3

28 U.S.C. § 2255 eecccsccssssssssescesesrenensserenssecsenseacsceeeenesacseensesnssscasecacsensnesseetecseats 6

Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018 ........... 1

Rules:

Rule 10, Supreme Court Rules .........ccccssscsssssesesscssesssescsssssessescsensesesseaccaesrenseaes 7,17

Rule 13.1, Supreme Court Rules .........ccccsesescsssssssscssessescscsscsescaeseesessssceessceeeassessesees 3

Rule 29.5, Supreme Court Rules... esccsesessssesessessescscesesecsseesesceesseeseecseeenseneses 24

United States Constitution:

U.S. Const. amend. I, Free Speech Clause... cece 4,7, 11, 12, 14, 15, 16, 23

U.S. Const. amend. V, Due Process Clause .....cccccccccscssscsscsesssecereres 4, 7, 10, 11, 23

U.S. Const. amend. XIV, Equal Protection Clause..........cccccseeeseees 4, 7, 10, 11, 23

Other:

Kathleen M. Sullivan, Unconstitutional Conditions,

102 Harv.L.R. 1415 (1989) cc ccesseeseseceesessenesscessssessesceseseessesseasseseseeeseeeeseee 10

viii

I. OPINIONS BELOW

A Federal Grand Jury for the Southern District of Mississippi indicted Mr.

Parker for one count of possessing child pornography in violation of 18 U.S.C. §

2252(a)(4)(B) and (b)(2). The Grand Jury returned the Indictment on April 18,

2023.

Mr. Parker accepted full responsibility for his actions by pleading guilty to

the single-count Indictment. The plea was under a Plea Agreement that contained a

waiver of appeal provision.! The district court conducted the plea hearing on

December 18, 2023, and the sentencing hearing followed on April 12, 2024.

The district court sentenced Mr. Parker to serve 136 months in prison,

followed by a lifelong term of supervised release. It ordered him to pay restitution

totaling $31,000, as well as a $2,000 assessment under the Amy, Vicky, and Andy

Child Pornography Victim Assistance Act of 2018. The court also ordered Mr.

Parker to abide by several standard and special conditions of supervised release

during his lifelong term of supervision. The court entered a Judgment reflecting its

sentence on April 17, 2024. The Judgment is attached hereto as Appendix 1.

Mr. Parker filed a timely Notice of Appeal to the United States Court of

Appeals for the Fifth Circuit on April 24, 2024. On appeal, he challenged one of

the special conditions of supervised release. The challenged condition prohibited

1 The specifics of the waiver of appeal provision are set forth below.

1

Mr. Parker from “using any internet-capable device, including computers at

businesses, private homes, libraries, schools, or other public locations, unless he is

granted permission in advance by the supervising U.S. Probation Officer.”

Rather than address Mr. Parker’s argument about the lifelong bar against

using any internet-capable device without prior approval, the prosecution opted to

file a Motion to Dismiss Appeal. The Motion to Dismiss was based on the waiver

of appeal provision in the subject Plea Agreement.” The prosecutor filed the

Motion on June 28, 2024, and the Fifth Circuit granted the Motion via a twosentence Order files on July 15, 2024. The court’s Order did not address the merits

of Mr. Parker’s Response to the Motion to Dismiss Appeal. The Fifth Circuit’s

Order is attached hereto as Appendix 2.

2 See supra, footnote 1.

II. JURISDICTIONAL STATEMENT

The United States Court of Appeals for the Fifth Circuit filed its Order

dismissing Mr. Parker’s appeal on July 15, 2024. This Petition for Writ of

Certiorari is filed within 90 days after entry of the Fifth Circuit’s Order, as required

by Rule 13.1 of the Supreme Court Rules. This Court has jurisdiction over the case

under 28 U.S.C. § 1254(1).

Ill. CONSTITUTIONAL PROVISIONS INVOLVED

“Congress shall make no law ... abridging the freedom of speech{.]” U.S. Const.

amend. I, Free Speech Clause.

“No person shall be ... deprived of life, liberty, or property, without due process of

law[.]” U.S. Const. amend. V, Due Process Clause.

“No State shail ... deny to any person within its jurisdiction the equal protection of

the laws.” U.S. Const. amend. XIV, Equal Protection Clause.?

3 “This Court repeatedly has held that the Fifth Amendment imposes on the Federal Government

the same standard required of state legislation by the Equal Protection Clause of the Fourteenth

Amendment.” Schweiker v. Wilson, 450 U.S. 221, 227 n.6, 101 S. Ct. 1074, 1079 n.6 (1981)

(citations omitted).

IV. STATEMENT OF THE CASE

A. Basis for federal jurisdiction in the court of first instance.

This case arises out of a criminal conviction entered against Mr. Parker for

possession of child pornography in violation of 18 U.S.C. § 2252. The court of first

instance, which was the United States District Court for the Southern District of

Mississippi, had jurisdiction over the case under 18 U.S.C. § 3231 because the

criminal charge levied against Mr. Parker arose from the laws of the United States

of America.

B. Statement of material facts.

1. The challenged special condition of supervised release.

On appeal to the Fifth Circuit, Mr. Parker challenged one special condition

of supervised release. The condition prohibited Mr. Parker from “using any

internet-capable device, including computers at businesses, private homes,

libraries, schools, or other public locations, unless he is granted permission in

advance by the supervising U.S. Probation Officer.” Specifically, the issue

presented to the Fifth Circuit was:

Should this Court order the district court to construe the “internet-capable

device” condition to not require Mr. Parker to receive prior approval for

every individual of any covered device or use of such a device to access the

Internet? Or, in the alternative, should this Court vacate the condition and

remand to the district court for resentencing?

2. The Plea Agreement and the waiver of appeal provision.

As stated above, Mr. Parker accepted full responsibility for his actions by

pleading guilty to possession of child pornography. His guilty plea was pursuant to

a Plea Agreement entered by the parties. The Plea Agreement contains a waiver of

appeal provision that states in relevant part:

Defendant, knowing and understanding all of the matters aforesaid,

including the maximum possible penalty that could be imposed, and being

advised of Defendant’s rights ... [including his right] to appeal the

conviction and sentence ... hereby expressly waives ... the right to appeal the

conviction and sentence imposed in this case, or the manner in which that

sentence was imposed, on the grounds set forth in Title 18, United States

Code, Section 3742, or on any ground whatsoever...

The Plea Agreement contains a further waiver of “the right to contest the

conviction and sentence or the manner in which the sentence was imposed in any

post-conviction proceeding, including but not limited to a motion brought under

Title 28, United States Code, Section 2255[.]”

The prosecution sought enforcement of the waiver provision via the Motion

to Dismiss Appeal described above. The Fifth Circuit granted the Motion, and this

Petition for Writ of Certiorari followed.

V. ARGUMENT:

Review on certiorari should be granted in this case.

A. Introduction.

As described above, the Fifth Circuit never reached the merits of Mr.

Parker’s appeal. Instead, it ruled that the argument is barred from consideration by

the waiver of appeal provision in the Plea Agreement. Because the Fifth Circuit

never addressed the merits of Mr. Parker’s argument, the only issue presented in

this Petition is whether the Fifth Circuit erred in its analyses and conclusions

regarding the waiver of appeal issue.*

Certiorari is warranted under Rule 10 of the Supreme Court Rules, which

states, “[r]eview on writ of certiorari is not a matter of right, but of judicial

discretion.” The Court should exercise its “judicial discretion” and grant certiorari

because the subject issue involves important constitutional issues under the Free

Speech Clause of the First Amendment, the Due Process Clause of the Fifth

Amendment, and the Equal Protection Clause of the Fourteenth Amendment. As

presented below, the concurrence opinion in United States v. Melancon, 972 F.2d

566 (Sth Cir. 1992) articulates these constitutional concerns in the waiver of appeal

context.

4 As set forth above, the Fifth Circuit’s analyses and conclusions are practically nonexistent. The

Order granting the Motion to Dismiss contains only two sentences and fails to address Mr.

Parker’s arguments regarding why Motion should be denied.

7

We ask this Court to grant certiorari and reverse the Fifth Circuit’s ruling. If

the Court grants certiorari and rules that the waiver of appeal provision is

unenforceable, then the case must be remanded to the Fifth Circuit for

consideration of Mr. Parker’s argument on the merits.

B. The waiver of appeal was made unknowingly.

United States v. Melancon involves the same issue before the Court in Mr.

Parker’s case — whether a waiver of appeal provision in a plea agreement is

enforceable. 972 F.2d at 567. Regarding the prosecution’s motion to dismiss the

appeal, the Melancon Court held, “a defendant may, as part of a valid plea

agreement, waive his statutory right to appeal his sentence.” Jd. at 568.

Accordingly, the Court granted the prosecution’s motion to dismiss Melancon’s

appeal. Id.

Judge Robert M. Parker authored a lengthy and well-reasoned concurring

opinion in Melancon. 972 F.2d at 570-80. He began by stating, “I concur specially

because I cannot dissent. This panel is bound by the unpublished, per curiam

opinion, United States v. Sierra, No. 91-4342 (Sth Cir. Dec. 6, 1991) [951 F.2d 345

(Table)].” Jd. at 570. He went on to state, “I write separately to express why I think

the rule embraced by this Circuit in Sierra is illogical and mischievous — and to

urge the full Court to examine the ‘Sierra rule,’ and to reject it.” Id.

Judge Parker reasoned that “[t]he rule articulated in Sierra is clearly

unacceptable, even unconstitutional policy: the ‘Sierra rule’ manipulates the

concept of knowing, intelligent and voluntary waiver so as to insulate from

appellate review the decision-making by lower courts in an important area of the

criminal law.” Melancon, 972 F.2d at 571. “I do not think that a defendant can ever

knowingly and intelligently waive, as part of a plea agreement, the right to appeal a

sentence that has yet to be imposed at the time he or she enters into the plea

agreement; such a ‘waiver’ is inherently uninformed and unintelligent.” Jd.

Judge Parker acknowledged that waivers can be valid in some scenarios.

However,

[i]n the typical waiver cases, the act of waiving the right occurs at the

moment the waiver is executed. For example: one waives the right to

silence, and then speaks; one waives the right to have a jury determine one’s

guilt, and then admits his or her guilt to the judge. In these cases, the

defendant knows what he or she is about to say, or knows the nature of the

crime to which he or she pleads guilty.

Melancon, 972 F.2d at 571 (citations omitted). But “[t]he situation is completely

different when one waives the right to appeal a Guidelines-circumscribed sentence

before the sentence has been imposed. What is really being waived is not some

abstract right to appeal, but the right to correct an erroneous application of the

Guidelines or an otherwise illegal sentence.” Id. at 572. “This right cannot come

into existence until after the judge pronounces sentence; it is only then that the

defendant knows what errors the district court has made — i.e., what errors exist to

be appealed, or waived.” Id. (emphasis added; citation omitted).

For the reasons thoughtfully articulated by Judge Parker, this Court should

grant certiorari and find that Mr. Parker’s waiver of the right to appeal was made

unknowingly. But the analysis does not end here. Judge Parker’s attack on the

majority’s opinion also extends to constitutional concerns.

C. The waiver of appeal provision is unconstitutional.

1, Fifth Amendment due process and Fourteenth Amendment equal

protection rights render the waiver of appeal provision unenforceable under

the facts of Mr. Parker’s case.

Judge Parker opines that the rule adopted by the majority “reflects the

imposition of an unconstitutional condition upon a defendant’s decision to plead

guilty.” Melancon, 972 F.2d at 577.

Unconstitutional conditions occur “when the government offers a benefit on

condition that the recipient perform or forego an activity that a preferred

constitutional right normally protects from governmental interference. The

‘exchange’ thus has two components: the conditioned government benefit on

the one hand and the affected constitutional right on the other.”

Id. (quoting Kathleen M. Sullivan, Unconstitutional Conditions, 102 Harv.L.R.

1415, 1421-1422 (1989) (emphasis in original)). “With a ‘Sierra Waiver,’ the

government grants to the criminal defendant the benefit of a plea agreement only

on the condition that the defendant accept the boot-strapped abdication of his or

her right to appeal.” Melancon, 972 F.2d at 578 (emphasis in original). This is at

10

least unacceptable, even if the government may withhold the benefit (i.e., the plea

agreement) altogether.” /d. (citation omitted).

Judge Parker recognized that to create the constitutional issue described in

the previous paragraph of this Brief, there must be a constitutional right. “The right

to appeal is a statutory right, not a constitutional right.” Melancon, 972 F.2d at 577

(citation omitted). However,

{e]ven if the Due Process and Equal Protection Clauses of the Constitution

do not require the government to create a statutory system of appellate

rights, these constitutional clauses do require the government, once it has

decided voluntarily to create such a system (as it has), to allow unfettered

and equal access to it.

Id. (citing Griffin v. Illinois, 351 U.S. 12 (1956) (holding that government has a

due process duty not to limit the opportunity of a statutorily created direct appeal

in a criminal case)). In other words, once the statutory right to appeal is

established, due process and equal protection bar the government from infringing

on the right in an improper manner. This Court should grant certiorari to clarify

this issue for the lower courts.

2. A lifetime ban on the use of “any internet-capable device” without

advance permission and approval is an unconstitutional restriction on Mr.

Parker’s First Amendment rights.

a. Packingham v. North Carolina, 582 U.S. 98 (2017)

established a fundamental right to access the Internet.

The supervised release condition banning Mr. Parker from using any

Internet-capable device without prior permission unconstitutionally restricts Mr.

11

Parker’s First Amendment rights and constitutes an unconstitutional deprivation of

his liberty. In Packingham v. North Carolina, this Court struck down as

unconstitutional a North Carolina criminal statute that made it a felony for sex

offenders to access certain social media websites. The Court analyzed the issue

under the First Amendment right to freedom of speech. 582 U.S. at 187.

The restriction considered in Packingham created a permanent restriction

applicable to all registered sex offenders, including those persons who were no

longer subject to the supervision of the criminal justice system. See 582 U.S. at

109. The Court found that prohibiting sex offenders from using social media

websites “bars access to what for many are the principal 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.” Jd. at 107. Accordingly, the Court held that “to foreclose access to

social media altogether is to prevent the user from engaging in the legitimate

exercise of First Amendment rights.” Jd. at 108. “Even convicted criminals—and

in some instances especially convicted criminals—might receive legitimate

benefits from these means for access to the world of ideas, in particular if they seek

to reform and to pursue lawful and rewarding lives.” Id.

12

b. The Fifth Circuit has not yet considered the impact of

Packingham beyond plain error review.

The Fifth Circuit considered, on plain error review, Packingham’s

application to an Internet ban in United States v. Halverson, 897 F.3d 645, 650-59

(Sth Cir. 2018). Whereas the Packingham statute only banned access to certain

social networking sites where minors might be present, 582 U.S. at 101, the

condition imposed in Halverson was a lifetime ban on Internet access, unless

approved in advance in writing by probation, 897 F.3d at 650. The Fifth Circuit

ultimately held that the defendant could not “plainly” show that Packingham

applied to the context of supervised release, but the court did not squarely decide if

Packingham applied to defendants still serving their sentence on supervised

release. Id. at 658.°

Other circuits, however, have held that Packingham established a

constitutional right to access the internet, regardless of current imprisonment

status. See, e.g., United States v. Eaglin, 913 F.3d 88, 95-96 (2d Cir. 2019)

(recognizing that citizens have a First Amendment right to access the Internet);

United States v. Ellis, 984 F.3d 1092, 1105 (4th Cir. 2021) (same); see also United

States v. Holena, 906 F.3d 288, 290 (3d Cir. 2018) (holding that supervised release

5 The Fifth Circuit also referenced Packingham in United States v. Caillier, 80 F.4th 564, 568

(5th Cir. 2023), but only in reference to the defendant’s argument that United States Probation

Office was seeking modification of his supervised release condition because it was now

unconstitutional in light of Packingham.

13

restrictions may not restrict First Amendment rights more than reasonably

necessary or appropriate to protect the public).

c. The approaches taken by other circuits are instructive.

In United States v. Eaglin, the Second Circuit considered a ban on Internet

access without special permission as a condition of a multi-year term of supervised

release. 913 F.3d at 91, 96 n.7. Noting that the restriction in Packingham was

different from that applying to an individual subject to the supervision of the

criminal justice system, the court nevertheless determined that “[i]n our view,

Packingham nevertheless establishes that, in modern society, citizens have a First

Amendment right to access the internet.” Jd. at 96.

The Eaglin court noted that the substance of the Internet ban at issue was

even broader than the restriction in Packingham: “[w]hereas the Packingham

statute banned access only to certain social networking sites where minors may be

present, such as Facebook and Twitter, the condition imposed on [the defendant]

prohibits his access to all websites.” 913 F.3d at 96 (emphasis in original).

Accordingly, the Second Circuit determined that the supervised release condition

implicated the same First Amendment concerns present in Packingham,

establishing that the defendant “has a First Amendment right to be able to email,

blog, and discuss the issues of the day on the Internet while he in on supervised

release.” Id.

14

The Second Circuit also noted that the ban would prevent him from

maintaining employment because “to search for a job in 2019, the Internet is nearly

essential, as the Court in Packingham recognized.” Eaglin, 913 F.3d at 96.

Accordingly, the Second Circuit held that in light of its precedent and “as

emphasized by Packingham’s recognition of a First Amendment right to access

certain social networking websites, the imposition of a total Internet ban as a

condition of supervised release inflicts a severe deprivation of liberty.” Jd. at 97.

The Fourth Circuit has also invalidated Internet bans as conditions of

supervised release in light of Packingham. In United States v. Ellis, the court relied

on Holena and Eaglin to discuss the “vast liberty [an Internet ban] deprives” and to

likewise hold that “an internet ban implicates fundamental rights,” endorsing the

Second Circuit’s determination that defendant has a First Amendment right to

access the Internet while on supervised release. Ellis, 984 F.3d at 1104-05.

In United States v. Holena, the Third Circuit considered a special condition

of supervised release that forbade the defendant from using the Internet without his

probation officer’s approval and from possessing or using any computers,

electronic communications devices, or electronic storage devices. 906 F.2d at 290.

The court determined that § 3583’s tailoring requirement reflects constitutional

concerns and that district courts must consider First Amendment implications of

conditions imposed on supervised release. Id. at 294.

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In Holena, both the defendant’s “computer ban and internet ban limit[ed] an

array of First Amendment activity” not related to his crime. 906 F.2d at 2940.

Accordingly, the Third Circuit determined that the supervised conditions

“suffer[ed] from the same ‘fatal problem’ as North Carolina’s restriction on using

social media” because “‘[t]heir wide sweep precludes access to a large number of

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

child.’” Jd. at 295 (quoting Packingham, 582 U.S. at 114 (Alito, J., concurring)). It

further noted that such “blanket internet restrictions will rarely be tailored enough

to pass constitutional muster” under Packingham. Holena, 906 F.3d at 295.

The bans that the Second, Third, and Fourth Circuits determined

unconstitutionally infringed upon a defendant’s First Amendment rights were all

less restrictive than that imposed upon Mr. Parker. While Halvorsen determined

that Packingham did not “plainly” apply to defendants still completing their

sentence, this Court has rejected absolute internet bans “[w]here they effectively

preclude a defendant from meaningfully participating in modern society for long

periods of time.” United States v. Becerra, 835 F. App’x 751, 756 (5th Cir. 2021)

(internal quotation marks and citation omitted); see also, e.g., United States v.

Naidoo, 995 F.3d 367, 384 (Sth Cir. 2021).

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3. Conclusion — the waiver of appeal provision is unconstitutional.

Under Rule 10(a) of the Supreme Court Rules, certiorari should be granted

when “a United States court of appeals has entered a decision in conflict with the

decision of another United States court of appeals on the same important matter[.]”

The Fifth Circuit’s decision in Mr. Parker’s case conflicts with the rulings of the

Second, Third, and Fourth Circuits.

The defense recognizes that the issue before the Court is the enforceability

of the waiver of appeal provision in Mr. Parker’s Plea Agreement. However, under

the facts of Mr. Parker’s case, the constitutional concerns implicated by the subject

waiver provision support ruling that the waiver provision is unenforceable.

Therefore, we ask this Court to grant certiorari.

D. The special condition of supervision at issue is not covered by the waiver

of appeal provision.

1. Introduction.

The lifetime condition of supervised release prohibiting Mr. Parker from

“using any internet-capable device, including computers at businesses, private

homes, libraries, schools, or other public locations, unless he is granted permission

in advance by the supervising U.S. Probation Officer” must be reformed or vacated

because it is impermissibly restrictive and overly broad.

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2. Special conditions of supervised release must be narrowly tailored

to avoid unreasonable restrictions of a defendant’s liberty.

Although a district court has “wide discretion” in imposing terms and

conditions of supervised release, United States v. Winding, 817 F.3d 910, 914 (Sth

Cir. 2016), a condition must be “reasonably related” to the factors set forth in 18

U.S.C. §§ 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D), 18 U.S.C. § 3583(d)(1).

The condition cannot involve a “greater deprivation of liberty than is reasonably

necessary” to afford adequate deterrence, to protect the public from further crimes

of the defendant, and to provide the defendant with needed training, medical care,

or other treatment. § 3583(d)(2); see § 3553(a)(2)(B)-(D); United States v. Caillier,

80 F.4th 564, 569 (Sth Cir. 2023). Thus, a ban on computer or internet use must be

“narrowly tailored either by scope or by duration.” United States v. Duke, 788 F.3d

392, 399 (Sth Cir. 2015).

Of particular significance, “[n]Jo circuit court of appeals has ever upheld an

absolute, lifetime Internet ban.” Duke, 788 F.3d at 399. In Duke, the Fifth Circuit

stated that “it is hard to imagine that such a sweeping, lifetime ban could ever

satisfy § 3583(d)’s requirement that a condition be narrowly tailored to avoid

imposing a greater deprivation than reasonably necessary” and that such a ban is

“the antithesis of a narrowly tailored sanction.” /d. (internal quotation marks and

citation omitted).

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3. The lifetime ban on Mr. Parker’s use of “any internet-capable

device” without prior United States Probation Office approval is an

impermissible condition of supervised release.

a. Precedent establishes that the supervised release condition

is impermissibly restrictive.

It is well-established that the supervised release condition Mr. Parker

challenges is unreasonably restrictive. Indeed, the Fifth Circuit invalidated the very

same condition on multiple occasions. In Naidoo, 995 F.3d at 384, the Fifth Circuit

determined that the same ban Mr. Parker faces—a “condition of supervised release

which requires him to seek permission from a Probation Officer prior to using any

Internet-capable device”—was unreasonably restrictive and that “individual

approval is not required every single time [the defendant] must use a computer or

access the Internet.” Accordingly, it affirmed the condition subject to the

interpretation that individual approval is not required each time the defendant

needed to use a computer or access the Internet. Id.; see United States v. Melton,

753 F. App’x 283, 289 (5th Cir. 2018) (same); United States v. Clark, 784 F.

App’x 190, 193-94 (Sth Cir. 2019); United States v. Page, No. 22-40722, 2023 WL

4015261, *1 (Sth Cir. June 14, 2023); United States v. Taylor, No. 23-40273, 2024

WL 1134728, *2 (Sth Cir. March 15, 2024); see also Becerra, 835 F. App’x 751 at

756-58 (quote at 756) (vacating a ten-year ban on computer and Internet use and

stating that even USPO “prior approval requirements must generally be applied in

such a way as to give defendants meaningful access to computers or the Internet”).

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b. Access to the Internet and Internet-capable devices is

fundamental to functioning in modern society.

In Duke, the Fifth Circuit vacated an absolute computer and Internet ban,

determining that such a ban “narrowed neither by scope nor by duration.” 788 F.3d

at 400. In so holding, it addressed the difficulties facing a defendant subject to such

ban for the rest of his life, including “prevent[ing] him from using a computer for

benign purposes such as word processing,” prohibiting him “from using the

Internet for other innocent purposes such as paying a bill online, taking online

classes, or video chatting and emailing with his family.” Jd. The Fifth Circuit

further recognizes that “access to computers and the Internet is essential to

functioning in today’s society. The Internet is the means by which information is

gleaned, and a critical aid to one’s education and social development.” United

States v. Sealed Juvenile, 781 F.3d 747, 756 (Sth Cir. 2015).

This reasoning also extends to cell phones. As this Court reiterated in

Carpenter v. United States, 585 U.S. 296, 315 (2018), “cell phones and the

services they provide are such a pervasive and insistent part of daily life that

carrying one is indispensable to participation in modern society.” (Internal

quotation marks and citation omitted). Such access to participation in modern

society cannot be forever denied purely based on an individual’s prior conduct or

incarceration status. “Although Internet access through smart phones and other

devices undeniably offers the potential for wrongdoing, to consign an individual to

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a life virtually without access to the Internet is to exile that individual from

society.” United States v. Eaglin, 913 F.3d 88, 91 (2d Cir. 2019). Thus, even where

the Fifth Circuit upheld absolute Internet bans, it has only done so where they were

limited in duration. See Caillier, 80 F.4th at 570.

As worded, the “internet-capable device” ban here includes not only laptops,

desktops, tablet devices, and any modern smart phone, but would also even apply

to modern cars and appliances.® Moreover, the condition not only bans all

unapproved uses of such devices for the purposes of accessing the Internet, but it

bans their unapproved possession and use for offline purposes, as well. Under the

condition as worded, without advance permission Mr. Parker cannot use a

computer to update his resume in Microsoft Word, use a gaming device to play

video games or watch movies offline, or use a modern smart phone to text message

family and friends. He cannot search for jobs online, use Google Maps to obtain

directions, look up the meaning of a word on Dictionary.com, make an order on

Amazon.com, or even access this a court’s website. Moreover, the condition of

supervision restricts Mr. Parker, who is currently navigating severe health issues,

6 In United States v. Ellis, 720 F.3d 220, 225 (5th Cir. 2013), the Fifth Circuit considered a

special condition that a defendant not “possess, have access to, or utilize a computer or internet

connection device . . . without prior approval of the court.” Although the court noted that

“modern devices such as cars and appliances do not come under the purview of the ban because

the categorical term ‘computers’ is subject to a commonsense understanding of what activities

the category encompasses,” id. (internal alterations, quotation marks, and citation omitted), the

restriction at issue here goes far beyond “computers or internet connection device” to extend to

any Internet-capable device.

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from receiving telehealth medicine or easily communicating with medical

professionals.

None of these activities puts the public at risk. Additionally, the condition

places no qualification on the prior-approval requirement, and it reads to require

advanced permission and approval for every single use of a covered device without

offering guidance on the sorts of usage that United States Probation Office should

approve within the permissible goals of supervised release. These facts support a

ruling that the waiver of appeal provision at issue is unenforceable as overly broad

and overly restrictive.

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