United States v. Branden Holena ( 2018 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 17-3537
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UNITED STATES OF AMERICA
v.
BRANDEN HOLENA,
Appellant
_______________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 3:07-cr-00169-001)
District Judge: Honorable Matthew W. Brann
_______________
Argued July 10, 2018
Before: GREENAWAY, JR., RESTREPO, and BIBAS,
Circuit Judges
(Filed: October 10, 2018)
_______________
Heidi R. Freese, Esq.
Federal Public Defender for the Middle District
of Pennsylvania
Frederick W. Ulrich, Esq. [ARGUED]
Assistant Federal Public Defender
Office of Federal Public Defender
100 Chestnut Street
Suite 306
Harrisburg, PA 17101
Counsel for Appellant
David J. Freed, Esq.
United States Attorney for the Middle District
of Pennsylvania
Carlo D. Marchioli, Esq. [ARGUED]
Office of United States Attorney
228 Walnut Street, P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108
Francis P. Sempa, Esq.
Office of United States Attorney
235 North Washington Avenue
P.O. Box 309, Suite 311
Scranton, PA 18503
Counsel for Appellee
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OPINION OF THE COURT
_______________
BIBAS, Circuit Judge.
To protect the public, a sentencing judge may restrict a con-
victed defendant’s use of computers and the internet. But to
respect the defendant’s constitutional liberties, the judge must
tailor those restrictions to the danger posed by the defendant.
A complete ban on computer and internet use “will rarely be
sufficiently tailored.” United States v. Albertson, 645 F.3d 191,
197 (3d Cir. 2011). This case illustrates why.
Branden Holena was convicted of using the internet to try
to entice a child into having sex. As a condition of his super-
vised release from prison, he may not possess or use computers
or other electronic communication devices. Nor may he use the
internet without his probation officer’s approval. Restricting
his internet access is necessary to protect the public. But these
restrictions are not tailored to the danger he poses. So we will
vacate and remand for resentencing.
I. BACKGROUND
Holena repeatedly visited an online chatroom and tried to
entice a fourteen-year-old boy to have sex. He made plans to
meet the boy. He assured the boy that his age was not a prob-
lem, as long as the boy did not tell the police. But the “boy”
was an FBI agent. So when Holena arrived at the arranged
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meeting spot in a park, he was arrested and charged with at-
tempting to entice a minor to engage in sexual acts.
Holena pleaded guilty. He was sentenced to ten years’ im-
prisonment and a lifetime of supervised release. As a special
condition of that supervised release, he was forbidden to use
the internet without his probation officer’s approval. He had to
submit to regular searches of his computer and home. And he
had to let the probation office install monitoring and filtering
software on his computer.
After serving his prison sentence, Holena violated the terms
of his supervised release—twice. The first time, he went online
to update social-media profiles and answer emails. The second
time, he logged into Facebook without approval, then lied
about it to his probation officer. After each violation, the court
sentenced him to nine more months’ imprisonment and reim-
posed the special conditions.
At Holena’s latest revocation hearing, the judge imposed
another condition, forbidding him to possess or use any com-
puters, electronic communications devices, or electronic stor-
age devices. Holena objected to this lifetime ban.
II. JURISDICTION AND STANDARD OF REVIEW
The District Court had jurisdiction under 18 U.S.C. §§ 3231
and 3583(e). We have jurisdiction under 28 U.S.C. § 1291 and
18 U.S.C. § 3742(a).
We review revocation of supervised release for abuse of
discretion. United States v. Bagdy, 764 F.3d 287, 290 (3d Cir.
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2014). We insist on “some evidence” that the special condi-
tions imposed are “tangibly related” to the goals of supervised
release. United States v. Voelker, 489 F.3d 139, 144 (3d Cir.
2007); see 18 U.S.C. § 3583(d). To justify special conditions,
district courts must find supporting facts. United States v.
Thielemann, 575 F.3d 265, 272 (3d Cir. 2009). We may affirm
if we can “ascertain any viable basis” in the record for the re-
striction. Id. (quoting Voelker, 489 F.3d at 144). Here, we can-
not.
III. THE SPECIAL CONDITIONS ARE NOT SUFFICIENTLY
TAILORED
Holena argues that the bans on computer and internet use
are both contradictory and more restrictive than necessary. We
agree. And we note that the lack of tailoring raises First
Amendment concerns.
A. The conditions are contradictory
Holena’s conditions of supervised release contradict one
another, so we cannot be sure that they fit the goals of super-
vised release. We cannot tell what they forbid, nor can Holena.
So we must vacate and remand.
One condition forbids Holena to “possess and/or use com-
puters . . . or other electronic communications or data storage
devices or media.” App. 8 (¶ 11). But the very next condition
provides that he “must not access the Internet except for rea-
sons approved in advance by the probation officer.” Id. (¶ 12).
These requirements conflict. How can he use the internet at all
if he may neither possess nor use a computer or electronic com-
munication device?
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Two other conditions likewise conflict with the ban. One
requires him to have monitoring software installed “on any
computer” he uses. Id. (¶ 7). The other requires him to submit
to searches of his computers. These conditions are difficult to
reconcile given his computer ban.
Nothing in the record helps us or Holena to harmonize these
contradictory conditions. Even the Government “hesitates to
discern” what the District Court meant to forbid. Appellee’s
Br. 28. And the Government admits that the ban conflicts with
several other conditions.
Even so, the Government urges us to read the probation-
officer-approval provision as an exception to the ban. But we
are not interpreting a statute. Due process requires district
courts to give defendants fair warning by crafting conditions
that are understandable. See United States v. Fontaine, 697
F.3d 221, 226 (3d Cir. 2012).
Holena cannot follow these conditions because he cannot
tell what they forbid. So we will vacate and remand.
B. The conditions are more restrictive than necessary
Section 3583(a) places “real restriction[s] on the district
court’s freedom to impose conditions on supervised release.”
United States v. Pruden, 398 F.3d 241, 248 (3d Cir. 2005). Spe-
cial conditions may not deprive the defendant of more liberty
“than is reasonably necessary” to deter crime, protect the pub-
lic, and rehabilitate the defendant. 18 U.S.C. § 3583(d)(2); see
id. § 3553(a). The same is true when district courts alter condi-
tions of supervised release. Id. § 3583(e)(2).
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The scope and intrusiveness of Holena’s conditions, on this
sparse record, violate this requirement. So, on remand, the Dis-
trict Court must tailor any restrictions it imposes to Holena’s
conduct and history. Id. § 3583(d)(2), (e)(2); see also Voelker,
489 F.3d at 146. Our remand is not “limited” to clarifying the
special conditions. Appellee’s Br. 29. The District Court
should conduct another revocation hearing. At that hearing, it
should make findings to support any restrictions it chooses to
impose on Holena’s internet and computer use. And it should
ensure that Holena understands those restrictions.
A defendant’s conduct should inform the tailoring of his
conditions. For instance, a tax fraudster may be forbidden to
open new lines of credit without approval. United States v.
Bickart, 825 F.3d 832, 840 (7th Cir. 2016). A child molester
may be forbidden to linger near places where children congre-
gate. United States v. Zobel, 696 F.3d 558, 575 (6th Cir. 2012).
And a child-pornography collector may be forbidden to pos-
sess pornography or visit pornographic websites. See United
States v. Freeman, 316 F.3d 386, 392 (3d Cir. 2003). So inter-
net bans and restrictions have a role in protecting the public
from sexual predators.
Still, internet bans are “draconian,” and we have said as
much “even in cases where we have upheld them.” United
States v. Heckman, 592 F.3d 400, 408 (3d Cir. 2010). To gauge
whether an internet or computer restriction is more restrictive
than necessary, we consider three factors: the restriction’s
length, its coverage, and “the defendant’s underlying conduct.”
Id. at 405 (emphasis removed). Sometimes we also consider a
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fourth factor: the proportion of the supervised-release re-
striction to the total restriction period (including prison). Al-
bertson, 645 F.3d at 198. But we cannot rely on that proportion
because the numerator is a lifetime ban. So we give the fourth
factor no weight here.
Our analysis must be fact-specific. Id. We do not simply
tally the factors, nor does one factor predominate. Here, both
the length and coverage of the computer ban and internet re-
striction are excessive. And they are not tailored to Holena’s
conduct.
1. Length. We are troubled that Holena’s “restrictions will
last as long as he does.” Voelker, 489 F.3d at 146. Without a
more detailed record, we cannot uphold such a “lifetime cyber-
netic banishment.” Id. at 148.
We have never upheld a lifetime ban in a precedential opin-
ion. And we have had trouble “imagin[ing] how [a defendant]
could function in modern society given [a] lifetime ban” on
computer use. Id. But we do not suggest that a lifetime ban
could never be sufficiently tailored. And the Sentencing Guide-
lines recommend the statutory maximum term (which may be
a lifetime term) of supervised release for sex crimes. U.S. Sen-
tencing Guidelines Manual § 5D1.2(b)(2) (U.S. Sentencing
Comm’n 2016) (policy statement).
Still, we are “conscious” that “[t]he forces and directions of
the Internet are so new, so protean, and so far reaching” that
any restrictions imposed today “might be obsolete tomorrow.”
Packingham v. North Carolina, 137 S. Ct. 1730, 1736 (2017).
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So the lifetime duration of the blanket ban is presumptively ex-
cessive.
2. Scope. The computer and internet bans both sweep too
broadly. They are the “antithesis of [the] ‘narrowly tailored’
sanction[s]” we require. Voelker, 489 F.3d at 145.
The ban on using a computer “or other electronic commu-
nications . . . device[ ] ” is particularly draconian. App. 8 (¶ 11).
In Thielemann, we upheld a qualified ten-year ban, one of the
longest and most restrictive bans we have upheld yet. 575 F.3d
at 278. But that ban involved some tailoring; the defendant
could still “own or use a personal computer as long as it is not
connected to the internet.” Id. (emphasis removed).
Not so here. Even under the Government’s less restrictive
reading, Holena can use no computer without his probation of-
ficer’s approval, nor even a cellphone. These restrictions apply
even to devices that are not connected to the internet. These
limitations prevent him from doing everyday tasks, like pre-
paring a résumé or calling a friend for a ride. None of these
activities puts the public at risk. So the computer and commu-
nication-devices ban is too broad.
The internet ban fares little better. It prevents Holena from
accessing anything on the internet—even websites that are un-
related to his crime. True, the District Court did some limited
tailoring of this restriction (if one reads the contradictory con-
ditions as adding up to less than a blanket ban). It imposed a
monitoring requirement and let him use the internet with his
probation officer’s prior approval. Those tweaks move the in-
ternet ban closer to the “comprehensive, reasonably tailored
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scheme” that we require. United States v. Miller, 594 F.3d 172,
188 (3d Cir. 2010).
But the District Court gave the probation office no guidance
on the sorts of internet use that it should approve. The goal of
restricting Holena’s internet use is to keep him from preying
on children. The District Court must tailor its restriction to that
end.
On this record, we see no justification for stopping Holena
from accessing websites where he will probably never encoun-
ter a child, like Google Maps or Amazon. The same is true for
websites where he cannot interact with others or view explicit
materials, like Dictionary.com or this Court’s website. The
District Court need not list all the websites that Holena may
visit. It would be enough to give the probation office some cat-
egories of websites or a guiding principle.
None of this is to say that the District Court may not impose
sweeping restrictions. In appropriate cases, it may. We hold
only that, on this record, the scope of the restrictions is too
broad.
3. Conduct. Holena used the internet to solicit sex from a
minor. And he repeatedly violated the terms of his supervised
release. That conduct warrants special conditions to limit his
internet use. But we examine whether the District Court has
tailored the special conditions to protect the public from similar
crimes that Holena might commit. That tailoring is inadequate
here.
We recognize that the need to protect the public is strongest
in cases like this, when the defendant used the internet to try to
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molest children. See Thielemann, 575 F.3d at 278; United
States v. Crandon, 173 F.3d 122, 128 (3d Cir. 1999). Holena’s
conduct underscores that point. He solicited sex from a (sup-
posedly) fourteen-year-old boy. He graphically described the
sexual acts he wanted to perform. And he knew what he was
doing was wrong, but did it anyway. So there is still a strong
need to protect the public. That is particularly true because the
internet provides almost limitless opportunities to interact with
people anonymously and nearly untraceably.
Even so, Holena’s bans are not tailored to his conduct. They
apply broadly to many internet and computer uses that have
nothing to do with preying on children.
On remand, the District Court must sculpt Holena’s re-
strictions to his conduct. Any restrictions it imposes must aim
to deter future crimes, protect the public, or rehabilitate
Holena. And the District Court must find facts so that we can
review whether the restrictions are informed by Holena’s con-
duct and directed toward those goals.
It is almost certainly appropriate to prevent Holena from
using social media, chat rooms, peer-to-peer file-sharing ser-
vices, and any site where he could interact with a child. On the
other hand, it may not be appropriate to restrict his access to
websites where he is unlikely to encounter a child. And there
are difficult cases in between, like restricting email access. We
leave it to the District Court to make those close calls based on
the record.
But, on this record, the court may not prevent Holena from
doing everyday tasks that have migrated to the internet, like
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shopping, or searching for jobs or housing. The same is true for
his use of websites conveying essential information, like news,
maps, traffic, or weather. Nor does this record justify banning
benign use of a computer without internet access. Absent spe-
cific factual findings, we cannot say that forbidding Holena to
write a novel or listen to music on his computer makes the pub-
lic any safer.
In crafting Holena’s restrictions, the District Court should
also consider the availability and efficacy of filtering and mon-
itoring software. See Voelker, 489 F.3d at 150; United States v.
Johnson, 446 F.3d 272, 282-83 (2d Cir. 2006) (upholding a
complete internet ban because the defendant could disable
monitoring software). Special conditions should involve “no
greater deprivation of liberty than is reasonably necessary” for
its ends. 18 U.S.C. § 3583(d)(2). So if software or another
measure (like limiting Holena’s computer or internet use to the
confines of the probation office) can achieve the goals of su-
pervised release, then that is preferable to an outright ban. In
any event, the court must create enough of a record to ground
its findings and enable our review.
On remand, the District Court should also consider whether
Holena may be allowed a cellphone. It should consider whether
he can safely be allowed a smartphone with monitoring soft-
ware installed. Alternatively, it may wish to permit a non-in-
ternet-connected phone, perhaps with text messaging that is
monitored or disabled. Along the same lines, many other de-
vices are connected to the internet, ranging from gaming de-
vices to fitness trackers to smart watches. We leave all such
determinations to the District Court.
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C. The conditions raise First Amendment concerns
Section 3583’s tailoring requirement reflects constitutional
concerns. Conditions of supervised release may not restrict
more liberty than reasonably necessary, including constitu-
tional liberty. So district courts must “consider the First
Amendment implications” of their conditions of supervised re-
lease. Voelker, 489 F.3d at 150. Conditions that restrict “fun-
damental rights must be ‘narrowly tailored and . . . directly re-
lated to deterring [the defendant] and protecting the public.’ ”
United States v. Loy, 237 F.3d 251, 256 (3d Cir. 2001) (quoting
Crandon, 173 F.3d at 128). And a condition is “not ‘narrowly
tailored’ if it restricts First Amendment freedoms without any
resulting benefit to public safety.” Id. at 266.
Here, both Holena’s computer ban and internet ban limit an
array of First Amendment activity. And none of that activity is
related to his crime. Thus, many of the restrictions on his
speech are not making the public safer.
The Supreme Court recently struck down a North Carolina
law banning sex offenders from using social-media websites.
Packingham, 137 S. Ct. at 1738. Because the parties did not
mention Packingham in their opening briefs, ordinarily we
would not reach the issue. See Kost v. Kozakiewicz, 1 F.3d 176,
182 (3d Cir. 1993). But we asked for supplemental briefing on
Packingham’s import here. And, because we are remanding,
we think it appropriate to offer guidance on how Packingham
informs the shaping of supervised-release conditions.
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The District Court can limit Holena’s First Amendment
rights with appropriately tailored conditions of supervised re-
lease. Defendants on supervised release enjoy less freedom
than those who have finished serving their sentences. See
United States v. Knights, 534 U.S. 112, 119 (2001); United
States v. Rock, 863 F.3d 827, 831 (D.C. Cir. 2017). But, as we
have noted, these restrictions must be tailored to deterring
crime, protecting the public, or rehabilitating the defendant.
Under Packingham, blanket internet restrictions will rarely be
tailored enough to pass constitutional muster.
Here, even under Packingham’s narrower concurrence, the
bans fail. They suffer from the same “fatal problem” as North
Carolina’s restriction on using social media. Packingham, 137
S. Ct. at 1741 (Alito, J., concurring). Their “wide sweep pre-
cludes access to a large number of websites that are most un-
likely to facilitate the commission of a sex crime against a
child.” Id. So on remand, the District Court must also take care
not to restrict Holena’s First Amendment rights more than rea-
sonably necessary or appropriate to protect the public.
D. The sentence was procedurally reasonable
Finally, we note briefly that the sentence is procedurally
reasonable because it is consistent with United States v. Booker
and its progeny. 543 U.S. 220 (2005). The District Court cor-
rectly calculated the applicable Guidelines range. It allowed
the parties to argue for whatever sentence they deemed appro-
priate. It considered all of the § 3553(a) factors. And it suffi-
ciently explained its reasoning on the record. See Gall v. United
States, 552 U.S. 38, 49-51 (2007); see also United States v.
Douglas, 885 F.3d 145, 150 (3d Cir. 2018).
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*****
Holena poses a danger to children, so the District Court
may, and should, limit his liberty accordingly. But his super-
vised release must still be tailored to the danger that he poses.
Holena’s current conditions fail that test. They contradict one
another. They also sweep too broadly, preventing him from
reading the news or shopping online. And they limit his First
Amendment freedoms beyond what is reasonably necessary or
appropriate. We do not see how they are reasonably tailored to
further the goals of supervised release, especially protecting
the public. So we will vacate his sentence and remand for a
new revocation hearing.
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