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Resource and Practice Tip: Update on Granted First Step Act Sentence Reductions and Some Thoughts on the Compassionate Release Eligibility Framework

 

By Ashley Cordero

Ashley is a fall intern at the Office of the Federal Public Defender for the Districts of Colorado and Wyoming. She is a second-year law student at the University of Denver, Sturm College of Law. Prior to law school, she managed an employment program for previously incarcerated individuals in her hometown Los Angeles, California. She hopes to remain in Colorado to pursue a career in public defense.

FIRST STEP ACT UPDATE

Summary of the USSC Resentencing Provisions Retroactivity Data Report

In October 2019, the U.S. Sentencing Commission released the Retroactivity Data Report collecting data on sentence reductions granted pursuant to Section 404 of the First Step Act. Section 404 expanded the pool of individuals eligible for a sentence reduction for previous crack-cocaine convictions by retroactively applying sections 2 and 3 of the Fair Sentencing Act of 2010. Now, under the First Step Act, the courts were to consider granting a sentence reduction as if the Fair Sentencing Act was in effect when the defendant was originally sentenced.

Sections 2 and 3 increased the quantity of crack cocaine that triggered mandatory minimum penalties and eliminated mandatory minimum sentences for simple possession of crack cocaine. This retroactive application of the Fair Sentencing Act guidelines had the potential to ameliorate some of the racial inequity stemming from the disparate crack-cocaine conviction rates between Black (83.0%) and White (5.8%) defendants. The report includes motions granted through September 30, 2019.

Key Findings from the USSC Retroactivity Report

  • Nationwide, district courts have granted 1,987 motions for sentence reduction under section 404. The Tenth Circuit has granted 1.7% (35) of these motions. The Districts of Colorado and Wyoming have granted four sentence reductions within the Tenth Circuit.
  • Of the defendants granted a sentence reduction, 91.2% are Black, 4.2% Hispanic, 3.8% White.
  • 98% of defendants granted a sentence reduction are male.
  • Nationally, on average defendants saw a 26.2% decrease from their current sentence. In the Tenth Circuit, defendants saw an average 30% decrease.

COMPASSIONATE RELEASE ARGUMENTS IN 924(c) CASES

Background

Section 403 of the First Step Act eliminated the archaic stacking provision that previously mandated minimums for individuals who were convicted of possessing a firearm in the commission of a crime of violence or drug trafficking offense –even if the charges arose from a singular criminal incident. The First Step Act revised 18 U.S.C. § 924(c)(1)(C) by providing that the higher penalty for a “second or subsequent count of conviction” under section 924(c) is triggered only if the defendant has a prior section 924(c) conviction that has become final.  See generally USSC First Step Act Summary. However, Section 403 was not made retroactive. This prompts the question, where do defendants with previous mandatory minimums under 924(c) fall within the First Step Act compassionate release eligibility framework?

Federal courts may reduce a defendant’s sentence if they find an “extraordinary and compelling reason” to warrant a reduction and that reduction is consistent with policy statements issued by the Sentencing Commission. 18 U.S.C. § 3582(c)(1)(A)(i) (2018). This is known as “compassionate release.”

The Sentencing Commission Policy statement dated November 1, 2018, lists four eligibility criteria including “other reasons” where there exists an “extraordinary and compelling reason other than or in combination with reasons” described in the report. While the report has not been updated since the passage of the First Step Act, district courts continue to refer to the policy statement as helpful guidance.  United States v Bucci, 2019 WL 5075964, at *1 (D. Mass. Sept. 16, 2019); See also United States v Shields, 2019 WL 2645028, at *2 (N.D. Cal. June 27, 2019).

While a sentence reduction must be consistent with the Commission’s policy statements, federal courts are not bound to these prescriptive categories. Courts have not found the policy report circumstances list to be exhaustive. See United States v Overcash, 2019 WL 1472104 (April 3, 2019) (stating the court may make an independent determination). Even if eligibility is established, reduction is not required. Federal courts have the discretion to reduce the defendant’s sentence, considering the 3553(a) sentencing factors to make their determination. See United States v Cole, 2019 WL 3406872, *5 (N.D. Ind. July 29, 2019).

If Making Compassionate Release Argument, Consider Reading Shon Hopwood’s article, Second Looks and Second Chances

  • Shon Hopwood is an Associate Professor of Law at Georgetown Law. In June 2019, as part of a series on federal sentencing, Cardozo Law Review published his essay, “Second Looks and Second Chances,” which outlines the history of second looks provisions and suggests litigation tactics for certain defendants, such as those with previous 924(c) convictions.
  • Before the First Step Act, Congress did not define what constituted an “extraordinary and compelling reason” for sentence reduction. Congress intended this provision to act as a safety valve.
  • There is no indication that Congress intended to limit the compassionate release safety valve to only medical or elderly release. If a defendant can establish extraordinary and compelling circumstances, compassionate release could be used to justify a reduction of an unusually long sentence.
  • By eliminating the stacking provision, Congress has acknowledged that the original sentencing scheme for 924(c) was overly punitive and unfair.
  • Unlike section 404 which established categorical eligibility, section 403 was not retroactive. Those sentenced under the stacking provision and now seeking relief under compassionate release must establish “extraordinary and compelling reasons” individually.
  • However, simply because Congress did not create a retroactive categorical eligibility for sentence reduction does not suggest that Congress foreclosed other options of relief.
  • Consider using the “other reasons” provision to demonstrate that the defendant has a compelling and extraordinary reason for compassionate release.

 

 

 

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News You Can Use: Tenth Circuit issues helpful decision limiting restitution in conspiracy cases

The Tenth Circuit recently issued an important decision in United States v Anthony concerning restitution in conspiracy cases. The facts are unlikely to reoccur very often, but the opinion contains some broadly applicable and helpful points of law.

Background

Mr. Anthony was convicted after trial of conspiracy to entice a child.  The evidence showed that he called an “escort service” which sent two minors to his place of business. He touched them both and had sex with one of them.  The girls had been ensnared by a pimp, and Mr. Anthony was one of over a hundred customers they had seen.

In ordering restitution, the district court held Mr. Anthony accountable for all the harm the girls suffered during the time they spent working for the pimp.  One of the girls had earlier been involved with another pimp in an enterprise wholly unrelated to the later one.  The court made no attempt to disaggregate the harm caused during the girl’s involvement with the first pimp from the harm caused during her involvement with the second.

The Decision

18 U.S.C. § 2259 generally requires proof of “but for” causation

Mr. Anthony’s first claim on appeal was that the district court should have disaggregated the harm caused during the first enterprise.  The circuit agreed.  And along the way, it ruled that 18 USC 2259, the statute governing restitution for most federal sex crimes, requires a showing of “but for” causation.  In doing so, the court rejected the government’s claim that the statute allowed liability based on a theory of multiple independent causes, which would have greatly expanded restitution liability.  Using but for causation–a familiar concept in restitution analysis generally–resolution of the claim was easy.  Mr. Anthony was obviously not a but for cause of the harms that were caused before his crime was even committed.

Restitution is limited to the harm established by the trial evidence

Mr. Anthony’s second claim was that the court shouldn’t have held him accountable for all the harm that happened during the time the girls were involved with the second pimp.  This argument rested on conspiracy law.  Conspiracy, of course, is an agreement, and he argued that his only agreement, if any, was to have sex with the girls on that one night.  The circuit also agreed with this argument (although Mr. Anthony ultimately lost because the claim wasn’t preserved).  The circuit had long held that a conspiracy conviction makes a defendant “liable in restitution for all losses that proximately result from the conspiracy itself, including losses attributable to coconspirators.”  And historically, the court had looked to the indictment to define the scope of the conspiracy and hence a defendant’s restitution liability.   But here the court held, at least in the case of a trial, that restitution has to be limited to what the evidence actually proved, not what was alleged in the indictment. 

Conspiracy liability is limited to the defendant’s own agreement

Here, the evidence only showed, at most, that Mr. Anthony joined a conspiracy to obtain the girls for sex on the night he met with them.  The reason?  Mr. Anthony’s sole purpose was to “have sex.”  Although he likely knew that his decision to pay for sex furthered the overall enterprise, that knowledge was not enough to make him a conspirator in that enterprise.  As the circuit put it, “mere knowledge” that his actions furthered an illegal enterprise, even in conjunction with his participation in a small part of the enterprise, doesn’t by itself establish that Anthony “joined in the grand conspiracy.”  Id. 

Key Takeaways

  • Be sure to take a careful look at restitution in sex offense cases.  Except child pornography crimes, Anthony teaches that restitution in the sex offense context is limited to harm that would not have occurred but for the defendant’s offense.
  • The evidence, not the indictment, controls, at least when there’s a trial. Restitution is limited to harm established by the evidence at trial, even if the indictment’s allegations are broader.
  • Traditional concepts of conspiracy liability apply in the restitution context. Conspiracy liability (including for restitution) is limited to the defendant’s own agreement, even if she knows of the wider conspiracy.
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News You Can Use: Tenth Circuit holds mandating medication on supervised release requires particularized findings and compelling circumstances

Earlier this fall, in United States v Malone the Tenth Circuit confronted a special condition of supervised release that directed the defendant to participate in mental health treatment while on supervision.   Conditions of this sort are fairly routine, but this condition included a particularly problematic feature – it required Mr. Malone to “take prescribed medication as directed.”  In imposing the condition, the trial court gave no justification for it.

There was no objection to the condition in the district court, but the Tenth Circuit reversed for plain error.  The court explained that requiring a person to take psychotropic drugs – which this requirement, as part of a mental health condition, plainly did – intrudes on a significant liberty interest.  And when a court wants to impose a condition of supervised release that “invades a fundamental right or liberty interest,” it must make particularized findings that set out “compelling circumstances” that justify the condition.  The district court didn’t do so here, and because the record would not have supported the necessary findings in any event, the court directed the district court to strike the “offending language” from the judgment.

Key Takeaways:

  • Keep an eye out for conditions like this in PSRs that come your way.  As the circuit recognized, this condition was being “broadly imposed as a ‘stock’ special condition” in Kansas.  Similar conditions have also cropped up in other judicial districts.
    • To that end, take note of this language in Malone:

      “When “stock” special conditions are proposed and the defendant does not object, it is easy to overlook the constitutional implications at stake. But even when the defendant does not object, the district court must ensure that its conditions conform to the Constitution.”

  • Carefully review proposed conditions to see whether they infringe on fundamental rights or liberty interests.  Lots of conditions fit this description.  Examples include: occupational restrictions, restrictions on familial association, and possessing of legal, sexually explicit material.
  • Develop your record at sentencing.  Ask the district court to make the requisite findings and establish the compelling reasons to justify the condition.
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Preserve This! SCOTUS to decide whether crime that can be committed recklessly can qualify as a “violent felony” under ACCA

Today, the United States Supreme Court granted certiorari in Walker v United States, out of the Sixth Circuit, to decide whether a criminal offense that can be committed with a mens rea of recklessness can qualify as a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. 924(e).

As the petition for certiorari explains, there is a deep and widely recognized conflict in the courts of appeals over that question.

The Tenth Circuit takes the view, like the Sixth Circuit, that offenses that can be committed recklessly can nevertheless qualify as violent felonies under ACCA’s force clause. See, e.g., United States v Hammons (for purposes of determining whether an offense constitutes a valid ACCA predicate, “it makes no difference whether the person applying the force had the specific intention of causing harm or instead merely acted recklessly”).

Make sure to preserve this issue!

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Practice Tip: Challenging “Crimes of Violence” and “Controlled Substance Offenses” under § 4B1.2 — Ideas about Inchoate Offenses

Figuring out how your client’s criminal history impacts their sentencing exposure is often no easy task. This is particularly so when you’re dealing with prior convictions that could be counted as “crimes of violence” or “controlled substance offenses” under the career offender guideline, § 4B1.2. Take a felon-in-possession sentencing, for example, where a single prior “crime of violence” will increase a client’s base offense level from 14 to 20—and potentially add years to his sentence.

That’s why it’s worth looking closely at every supposed “crime of violence” or “controlled substance offense,” and objecting to the characterization of that prior conviction if possible. Challenging priors might help your client now, or it might help later (read on for ideas about how to preserve arguments for appeal). Remember, a district court commits procedural error when it fails to properly calculate the correct Guidelines range. See, e.g., United States v. Lente, 647 F.3d 1021, 1030 (10th Cir. 2011).

Here are some arguments to consider if the prior conviction is for an inchoate offense such as conspiracy, aiding and abetting, or attempt.

THE BASICS

Is the prior conviction a categorical match for the generic offense?

When determining whether a particular conviction constitutes a “crime of violence” or “controlled substance offense” under § 4B1.2, courts apply the categorical approach and “look to the statute under which the defendant was convicted.” United States v Martinez-Cruz, 836 F.3d 1305, 1309 (10th Cir. 2016). That includes determining whether the elements of the generic, contemporary version of the relevant inchoate offense match up with the elements of the prior conviction. In Martinez-Cruz, for example, the Tenth Circuit found that the defendant’s prior conviction for federal conspiracy to possess with intent to distribute was not a “controlled substance offense” because—unlike generic conspiracy—that offense does not require proof of an “overt act.” See 836 F.3d at 1310-11.

To conduct this type of analysis, begin by taking a look at the underlying inchoate offense and figuring out what it requires the government to prove, and then compare it to similar offenses in other jurisdictions. In Colorado, for example, conspiracy is “unilateral,” which means it is “committed when the defendant agrees with another person to act in a prohibited manner; the second party can feign agreement.” People v Vecellio, 292 P.3d 1004, 1010 (Colo. Ct. App. 2012). But in other jurisdictions, conspiracy is “bilateral” and requires two co-conspirators to actually agree to commit a crime—you can’t “conspire” with an undercover law enforcement agent who is only pretending to agree. See, e.g., United States v Barboa, 777 F.2d 1420, 1422 (10th Cir. 1985); People v Foster, 457 N.E.2d 405, 415 (Ill. 1983).

If there seems to be a real split in authority, it’s worth digging deeper to suss out the majority approach to the question—i.e., what counts as the generic form of the crime. If your client’s prior is broader than that generic crime, then it is not a categorical match for the offense, and cannot be counted as a “crime of violence” or “controlled substance offense” under § 4B1.2.

FORECLOSED BUT MIGHT BE WORTH PRESERVING

There are a couple of arguments in this vein that are foreclosed by Tenth Circuit precedent, but may be worth raising for preservation.

  • Does Application Note 1 unlawfully expand the definition of “crime of violence” to include inchoate offenses?

The practice of counting inchoate offenses as “crimes of violence” or “controlled substance offenses” is not actually rooted in the text of § 4B1.2. Rather, it is based entirely on Application Note 1 to that guideline, which states that the definitions of “crime of violence” and “controlled substance offense” “include the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.”

That raises the question: Since when can the Sentencing Commission expand the scope of a guideline through its commentary? Unlike the guidelines themselves, the commentary are not subject to the Administrative Procedures Act. And while the Sentencing Commission is free to interpret the guidelines through commentary, the expansion of the guideline to include inchoate offenses arguably exceeds that interpretive authority. At least, that’s what the D.C. Circuit held in United States v Winstead, 890 F.3d 1082 (2018), and what a panel of the Sixth Circuit seemed to believe in United States v Havis, 907 F.3d 439 (2018). The Havis panel was bound to affirm the sentence by prior circuit precedent—but were apparently able to persuade the entire court to take the issue en banc. See United States v. Havis, 921 F.3d 628 (2019) (granting petition for rehearing en banc).

The Tenth Circuit previously rejected a version of this argument in United States v Martinez, 602 F.3d 1166 (2010). However, the issue may nevertheless be worth raising, in light of the new (and growing?) circuit split on the issue.

  • Is Colorado attempt broader than generic attempt, insofar as it defines “substantial step” to mean any conduct that is strongly corroborative of the actor’s criminal purpose?

The Tenth Circuit has held that generic attempt liability requires “the commission of an act which constitutes a substantial step toward commission of that crime,” United States v Venzor-Granillo, 668 F.3d 1224, 1232 (10th Cir. 2012), a formulation that derives from the Model Penal Code. The Model Penal Code, in turn, states that “[c]onduct shall not be held to constitute a substantial step . . . unless it is strongly corroborative of the actor’s criminal purpose.” Model Penal Code § 5.01(2). In other words, it suggests that strongly corroborative conduct may constitute a substantial step—but not that it necessarily does.

By contrast, Colorado law provides that “[a] substantial step is any conduct . . . which is strongly corroborative of the firmness of the actor’s purpose to complete the offense.” Colo. Rev. Stat. § 18-2-101(1) (emphasis added). Under Colorado law, strong corroboration of criminal purpose is not merely necessary but rather sufficient to establish a substantial step, unlike the “unadulterated Model Penal Code approach.” People v Lehnert, 163 P.3d 1111, 1114 (Colo. 2007). In this way, Colorado attempt arguably sweeps more broadly than generic attempt.

The Tenth Circuit recently rejected this argument in United States v. Mendez, No. 18-1259 (10th Cir. 2019). This is another argument that may be worth raising for preservation purposes, in case the law changes in the future.

Takeaways

  • Look closely at any conviction that is classified as a “crime of violence” or “controlled substance offense.” It could make a big difference to your client’s sentence!
  • Be creative. The elements of the inchoate offenses—conspiracy, aiding and abetting, and attempt—vary across jurisdictions. Compare the elements of your client’s prior offense against those in other jurisdictions, and consider whether there’s a viable challenge under the categorical approach.
  • Focus on the text of the guideline. As the D.C. Circuit and several judges on the Sixth Circuit have noted, § 4B1.2 says nothing about inchoate offenses—and the Sentencing Commission lacks the authority to expand the reach of its guidelines through its commentary. While this argument is arguably foreclosed in the Tenth Circuit, it may be worth preserving in your client’s case.
  • Brush up on the categorical approach. This sentencing doctrine is hyper-technical and obscure—and it can produce real results for our clients. For a good overview of the categorical approach in general, take a look at United States v Titties, 852 F.3d 1257 (10th Cir. 2017). For an example of its use in the guidelines context, take a look at United States v Martinez-Cruz, 836 F.3d 1305 (10th Cir. 2016).
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Welcome to the New and Improved Rocky Mountain Defense Blog!

Welcome to the new and improved Rocky Mountain Defense Blog!  Started about a decade ago by Federal Public Defender Virginia Grady, the Blog is written and maintained by lawyers and interns at the Federal Public Defender’s Office for the Districts of Colorado and Wyoming.  We will keep you posted about federal criminal law developments in the Tenth Circuit and the United States Supreme Court.

Here’s what you’ll find:

(1) News You Can Use – case law summarizes with suggested takeaways for practical application.

(2) Practice Tips – strategies and suggestions for motions and appellate practice.

(3) Resources– links to helpful websites, blogs, and articles about federal criminal defense in the Tenth Circuit and nationally.

Please follow the Blog to receive notifications of new posts.

 

 

 

News You Can Use: Tenth Circuit Holds Retaliation Against Witness Is Not a Crime of Violence for Purposes of 924(c)

This case arose out of the Johnson v. United States litigation that has been going on since 2015. After Johnson, Aaron Bowen filed a motion to vacate his sentence under 28 U.S.C. § 2255, arguing that his predicate conviction for witness retaliation was not a crime of violence for purposes of 18 U.S.C. § 924(c). The case was stayed pending the Supreme Court’s decision in United States v. Davis, ––– U.S. ––––, 139 S. Ct. 2319 (2019), where the Supreme Court recently held the residual clause of Section 924(c) is void for vagueness.

The Tenth Circuit’s decision in Mr. Bowen’s case had several important holdings:

First, that Davis is a new substantive rule that is retroactively applicable on collateral review.

Second, that Mr. Bowen’s convictions for witness retaliation do not qualify as crimes of violence under 18 U.S.C. § 924(c)(3)(A).

Third, that Mr. Bowen is actually innocent of 18 U.S.C. § 924(c)(1)—because his predicate conviction does not fall under the force clause of 924(c), and the residual clause was invalidated by Davis.

ANALYSIS OF FORCE AGAINST PROPERTY

The key takeaway is that force against property is analyzed differently from force against persons for purposes of the 924(c) force clause.  Recall that, unlike its ACCA counterpart, the elements clause of 18 U.S.C. § 924(c) encompasses crimes that have as an element the use of physical force against not just people, but also other people’s property. After cases like Stokeling v United States and United States v Ontiveros, almost any force that causes bodily injury is enough to qualify under the force clause. This case, however, required the circuit to decide for the first time how much force is necessary to satisfy the statute when the force is directed at property.

The predicate crime here was federal retaliation against a witness, 18 U.S.C. § 1513(b)(2). A defendant may be convicted of that offense if either (1) with intent to retaliate, he knowingly causes or threatens to cause bodily injury to a witness or (2) knowingly causes or threatens to cause damage to a witness’s property. The Tenth Circuit concluded that witness retaliation through bodily injury qualifies as a crime of violence under § 924(c)(3)’s elements clause, but witness retaliation through property damage does not.

Although the underlying facts of Mr. Bowen’s predicate conviction encompassed actual force against persons and property, under the well-worn categorical approach, we all know that the facts don’t matter. In other words, to determine whether Bowen’s witness retaliation conviction has “as an element the use, attempted use, or threatened use of [violent] force against the person or property of another,” 18 U.S.C. § 924(c)(3)(A), courts must look “only to the fact of conviction and the statutory definition of the prior offense, and do not generally consider the particular facts disclosed by the record of conviction.” United States v Serafin, 562 F.3d 1105, 1107–08 (10th Cir. 2009).

A Sixth Circuit case, United States v Edwards, 321 F. App’x 481 (6th Cir. 2009), demonstrated that the federal witness retaliation could be satisfied by spray-painting a car. Citing to Moncrieffe v. Holder, the Circuit explained that the salient question was whether spray-painting a witness’s car qualifies as a crime of violence under § 924(c)(3)’s elements clause. 569 U.S. 184, 190–91 (2013) (“[W]e must presume that the conviction rested upon nothing more than the least of the acts criminalized, and then determine whether even those acts are encompassed by [§ 924(c)(3)’s elements clause].”).

Ultimately, the Tenth Circuit agreed with Mr. Bowen that property “crimes of violence” under § 924(c)(3)(A) are those that include “violent force,” not merely those that “injure property.” Spray painting a car did not rise to the level of “violent force,” and so Mr. Bowen’s predicate conviction was not a crime of violence.

The decision was over a dissent by Judge McHugh, and also creates a split with the Second Circuit. See United States v Hill, 890 F.3d 51, 58 (2d Cir. 2018).

KEY TAKEAWAY

Force against property for purposes of 924(c)’s force clause requires violent force against property—mere property damage (such as spray-painting a car) does not satisfy the force clause. The Tenth Circuit didn’t elaborate on what sorts of offenses against property would qualify, but explained only that mere damage to property isn’t enough.

News You Can Use: Tenth Circuit holds special condition of supervised release banning internet use, unless preapproved by probation, is greater deprivation of liberty than necessary under 18 U.S.C.§ 3583(d)

Individuals convicted of child pornography offenses in the District of Colorado have typically been subject to a special condition of supervised release aimed at controlling their internet use; it states: “The defendant’s use of computers and Internet access devices must be limited to those the defendant requests to use, and which the probation officer authorizes.” This condition essentially prevents individuals on supervised release from using any computer or “Internet access device” by default, unless and until their probation officer gives them permission to do so—and there’s nothing to say that probation ever has to give them permission.

This week, in United States v. Blair, the Tenth Circuit, over a dissent by Judge Baldock, held this condition is a greater deprivation of liberty than reasonably necessary under 18 U.S.C. § 3583(d) because “it allows the probation office to completely ban the defendant’s use of the internet by failing to place any restraints on a probation officer’s ability to restrict a defendant’s Internet access.” 2019 WL 379368, at *1.  Notably, the majority reached its decision, notwithstanding arguably aggravating factors about Mr. Blair’s offense, which were highlighted by the dissent.

The Tenth Circuit held: “the special condition would prohibit [Mr. Blair’s] use of a computer for benign activities, such as writing a novel or checking the weather, without first obtaining permission from his probation officer.” Id. at *6. Moreover, the condition gives the probation office “unfettered discretion” to decide when to lift the ban—without anything to “suggest[] that the probation office [would] allow Blair any reasonable use of the internet.” Id. at *6-7.  The Tenth Circuit vacated the special condition and remanded to the district court with instructions to “amend the special condition of supervised release to bring it into compliance with the demands of [18 U.S.C.] sections 3553 and 3583.”

So how is the district court supposed to bring this special condition into compliance with the sentencing and supervised released statutes?  The Tenth Circuit has some ideas.

The probation officer is “limited to imposing only those restrictions that are reasonably calculated to prevent the defendant from using a computer or the Internet to access, store, produce, or send child pornography in any form; to provide necessary restrictions to facilitate a defendant’s correctional treatment so that he may be rehabilitated; and to protect the public from any further crimes of the defendant.” Id. at *8-9. The Court further indicated that a district court would have to find “extraordinary circumstances” existed in order to justify a “blanket or total ban” on internet usage, which nobody had argued applied in Mr. Blair’s case. Id. at *9 n.6.

Takeaways

  •  No categorical internet/computer bans. The district court cannot ban defendants—including those convicted of possessing child pornography—from using the internet or computers, absent extraordinary facts not present in the typical case. Nor can a district court order a condition that allows probation to impose such a ban. Rather, any restriction on internet or computer use has to be tailored to preventing further child pornography crimes or facilitating the defendant’s rehabilitation.
  • Challenge overbroad conditions of supervised release at sentencing.
    • The law is on our side to assert this challenge at sentencing.  As the Tenth Circuit explains in Blair: “Although district courts have broad discretion to prescribe conditions on supervised release…that discretion is limited by 18 U.S.C. § 3583(d) and 18 U.S.C. § 3553(a).”
    • The government’s argument that it’s better to wait until defendant is actually on supervision didn’t go anywhere with the court of appeals.  The Tenth Circuit rejects out of hand the government’s suggestion “that the proper time for [a defendant] to raise his desire to use computers and the Internet for harmless purposes is down the road when he meets with his probation officer and discovers how the probation office intends to enforce the condition.” Id. at *8. After all, the prohibition on overbroad conditions contained in 18 U.S.C. § 3583 “directly govern[s] the district court’s obligations in imposing the supervised release conditions” at sentencing. Id.
    •  Another reminder that preservation matters.  Trial counsel objected to the internet-use ban in the district court, clearing the path for a meaningful victory in the court of appeals.
  • Overly restrictive conditions matter because violating them could result in  more prison time. As the Tenth Circuit acknowledges in a footnote, people have gone to prison for violating overbroad conditions of supervised release in seemingly innocuous ways—such as by checking their email or logging into Facebook. see id. at *8 n.5. By paying attention to these issues at sentencing, you may be able to save your client some jail time down the road.
  •  Don’t be scared away by an appellate waiver – make sure it bars your issue before assuming otherwise.  Mr. Blair signed a plea agreement with an appeal waiver, but it was unenforceable here, allowing the appeal to proceed.  As the Tenth Circuit noted, the government conceded that “this appeal falls outside the scope of the waiver” because Blair received a sentence based on an offense level higher than that anticipated by the agreement.