United States v. Branden Holena , 906 F.3d 288 ( 2018 )


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  •                                       PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    _______________
    No. 17-3537
    _______________
    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
    2
    _______________
    OPINION OF THE COURT
    _______________
    BIBAS, Circuit Judge.
    To protect the public, a sentencing judge may restrict a
    convicted 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
    supervised 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
    problem, as long as the boy did not tell the police. But the
    “boy” was an FBI agent. So when Holena arrived at the
    3
    arranged meeting spot in a park, he was arrested and charged
    with attempting to entice a minor to engage in sexual acts.
    Holena pleaded guilty. He was sentenced to ten years’
    imprisonment 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
    reimposed the special conditions.
    At Holena’s latest revocation hearing, the judge imposed
    another condition, forbidding him to possess or use any
    computers, electronic communications devices, or electronic
    storage 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.
    2014). We insist on “some evidence” that the special
    4
    conditions 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 restriction. 
    Id. (quoting Voelker,
    489 F.3d at 144). Here,
    we cannot.
    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
    supervised 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
    computers . . . 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 reasons 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 communication device?
    5
    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).
    Special conditions may not deprive the defendant of more
    liberty “than is reasonably necessary” to deter crime, protect
    the public, and rehabilitate the defendant. 18 U.S.C.
    § 3583(d)(2); see 
    id. § 3553(a).
    The same is true when district
    courts alter conditions of supervised release. 
    Id. § 3583(e)(2).
    6
    The scope and intrusiveness of Holena’s conditions, on this
    sparse record, violate this requirement. So, on remand, the
    District 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
    congregate. United States v. Zobel, 
    696 F.3d 558
    , 575 (6th Cir.
    2012). And a child-pornography collector may be forbidden to
    possess pornography or visit pornographic websites. See
    United States v. Freeman, 
    316 F.3d 386
    , 392 (3d Cir. 2003).
    So internet 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
    7
    fourth factor: the proportion of the supervised-release
    restriction to the total restriction period (including prison).
    
    Albertson, 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
    restriction 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
    cybernetic banishment.” 
    Id. at 148.
       We have never upheld a lifetime ban in a precedential
    opinion. 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
    Guidelines recommend the statutory maximum term (which
    may be a lifetime term) of supervised release for sex crimes.
    U.S. Sentencing 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).
    8
    So the lifetime duration of the blanket ban is presumptively
    excessive.
    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
    communications . . . 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
    officer’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
    preparing a résumé or calling a friend for a ride. None of these
    activities puts the public at risk. So the computer and
    communication-devices ban is too broad.
    The internet ban fares little better. It prevents Holena from
    accessing anything on the internet—even websites that are
    unrelated to his crime. True, the District Court did some
    limited tailoring of this restriction (if one reads the
    contradictory conditions 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 internet ban closer to the “comprehensive,
    9
    reasonably tailored 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
    encounter 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
    categories 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
    10
    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
    (supposedly) 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
    restrictions 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
    conduct and directed toward those goals.
    It is almost certainly appropriate to prevent Holena from
    using social media, chat rooms, peer-to-peer file-sharing
    services, 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
    11
    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
    specific factual findings, we cannot say that forbidding Holena
    to write a novel or listen to music on his computer makes the
    public any safer.
    In crafting Holena’s restrictions, the District Court should
    also consider the availability and efficacy of filtering and
    monitoring 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 supervised 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
    software installed. Alternatively, it may wish to permit a non-
    internet-connected phone, perhaps with text messaging that is
    monitored or disabled. Along the same lines, many other
    devices are connected to the internet, ranging from gaming
    devices to fitness trackers to smart watches. We leave all such
    determinations to the District Court.
    12
    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
    constitutional liberty. So district courts must “consider the First
    Amendment implications” of their conditions of supervised
    release. 
    Voelker, 489 F.3d at 150
    . Conditions that restrict
    “fundamental rights must be ‘narrowly tailored and . . . directly
    related 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.
    The District Court can limit Holena’s First Amendment
    rights with appropriately tailored conditions of supervised
    13
    release. 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
    precludes access to a large number of websites that are most
    unlikely 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
    reasonably 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
    correctly calculated the applicable Guidelines range. It allowed
    the parties to argue for whatever sentence they deemed
    appropriate. It considered all of the § 3553(a) factors. And it
    sufficiently 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).
    14
    *****
    Holena poses a danger to children, so the District Court
    may, and should, limit his liberty accordingly. But his
    supervised 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.
    15