United States v. Paul Hamilton, Jr. ( 2021 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-4852
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
PAUL GLEN HAMILTON, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Northern District of West Virginia, at
Martinsburg. Gina M. Groh, Chief District Judge. (3:19-cr-00010-GMG-RWT-1)
Argued: December 11, 2020 Decided: January 22, 2021
Before WILKINSON, AGEE, and RICHARDSON, Circuit Judges.
Affirmed in part and vacated and remanded in part by published opinion. Judge Wilkinson
wrote the opinion, in which Judge Agee and Judge Richardson joined.
ARGUED: Kristen Marie Leddy, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Martinsburg, West Virginia, for Appellant. Kimberley DeAnne Crockett, OFFICE OF
THE UNITED STATES ATTORNEY, Martinsburg, West Virginia, for Appellee. ON
BRIEF: William J. Powell, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Wheeling, West Virginia, for Appellee.
WILKINSON, Circuit Judge:
In July 2019, Paul Glenn Hamilton, Jr., pled guilty to one count of possession of
child pornography under 18 U.S.C. § 2252A(a)(5)(B), (b)(2). He was sentenced to ten
years of incarceration to be followed by a lifetime of supervised release. In this appeal, he
challenges three of the special conditions of his supervised release. With one exception,
we reject those challenges.
I.
The record in this case reflects the disturbing manipulation and brutal sexual
exploitation of a fourteen-year-old girl, A.C., by a twenty-three-year-old man. Hamilton
met A.C. online and corresponded with her for nine months before meeting her in person.
He admitted to police that, soon after he started messaging her, he realized that she was
fourteen years old but said that he was okay with her young age. During that time,
Hamilton directed her to send him sexually explicit photographs of herself and instructed
her in performing sexual conduct. Hamilton also sent her nude videos of himself. A search
of his phone revealed fifty-three photographs and twenty-six videos of A.C. that were
sexually explicit.
On September 11, 2018, at Hamilton’s direction, A.C. took a Lyft from her home in
West Virginia to Hamilton’s house in Maryland. During the hour-and-a-half drive, A.C.
was on the phone giving a road-by-road accounting of the route. Hamilton directed her to
be dropped off a few houses down from his residence, so as not to alert his parents with
whom he was living. Hamilton hid her in his closet for several hours until his parents left
the house and raped her twice before taking her into Virginia on the way to South Carolina.
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During the trip, Hamilton took her cell phone, so that she had no way of contacting her
parents. She was able to steal her phone back briefly and contacted her parents, who alerted
the police. Hamilton and A.C. stopped at a motel in Suffolk, Virginia, where he sexually
assaulted her a third time and photographed the two of them together in bed. Defendant
forced A.C. into the shower with him, at which point the police knocked on the door. He
threatened to kill A.C. if she responded to the police, but the police were able to retrieve
her from the hotel room.
The officers took A.C. to a medical facility in Virginia for a rape kit, which
positively identified Hamilton’s DNA in the sample collected. While the officers were at
the medical center, Hamilton’s cell phone pinged at A.C.’s address in West Virginia.
Defendant was then arrested in Berkeley County, West Virginia. Despite a protective order
prohibiting Hamilton’s contact with A.C., he later tried to get a message to her through a
friend of hers on social media.
Hamilton was indicted on one count of possession of child pornography in the
Northern District of West Virginia on January 23, 2019. On July 24, he pled guilty to that
charge. He was later sentenced to ten years of imprisonment and a lifetime of supervised
release with the standard conditions of supervision, as well as twenty-five special
conditions. He objected to the following conditions as being overbroad and not sufficiently
related to his conduct: (7) “You must not work in any type of employment without the prior
approval of the probation officer;” (11) “You must not access the Internet except for
reasons approved in advance by the probation officer;” and (12) “You must not go to, or
remain at, any place where you know children under the age of 18 are likely to be, including
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parks, schools, playgrounds, ball fields, childcare facilities, movies, and arcades.” J.A.
104. The district court overruled his objections and Hamilton timely appealed.
II.
A.
As part of an overhaul of the federal criminal code in the 1980s, Congress abolished
parole for federal prisoners and replaced it with a system of supervised release. See
Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1987, 1999–2000, 2027.
Unlike parole, supervised released is imposed by district courts for a particular term at
sentencing and “does not replace a portion of the sentence of imprisonment.” U.S.S.G. §
7A2(b) (2018).
District judges exercise significant discretion in setting the length and conditions of
supervised release within parameters set by both federal statutes and the Sentencing
Guidelines. First and foremost, 18 U.S.C. § 3583 sets out the general authority for district
courts to impose a term of supervised release with the maximum length dictated by the
felony class. The statute provides an exception to these maximums for crimes under §
2252A that requires a minimum of five years and allows up to a lifetime of supervised
release. Id. § 3583(k). When setting the duration and terms of supervised release, district
courts must take into account factors similar to those that guide their discretion in imposing
a term of imprisonment. Id. § 3583(c). These factors include
(1) “the nature and circumstances of the offense and the history and characteristics
of the defendant,”
(2) “adequate deterrence to criminal conduct,”
(3) “protect[ion of] the public from further crimes of the defendant,”
(4) effective education, training, and treatment for the defendant,
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(5) “the applicable guidelines or policy statements issued by the Sentencing
Commission,”
(6) “the need to avoid unwarranted sentence disparities among defendants with
similar records,” and
(7) “the need to provide restitution to any victims.” Id. § 3553(a).
In addition to a set of mandatory conditions, the district court may order a “further
condition of supervised release, to the extent such [a] condition . . . is reasonably related to
the” aforementioned factors, “involves no greater deprivation of liberty than is reasonably
necessary for the purposes set forth” above, and “is consistent with any pertinent policy
statements issued by the Sentencing Commission.” Id. § 3583(d). Section 3583 also
provides for the modification, termination, extension, and revocation of supervised release
by the district court. See id. § 3583(e).
Second, the Sentencing Guidelines supplement the statutory provision with
additional guidance for the imposition of supervised release. For example, they include a
policy statement that “the statutory maximum term of supervised release is recommended”
for those convicted of sex offenses. U.S.S.G. § 5D1.2 (2018). The Guidelines provide
further detail and expand upon the mandatory conditions of supervised release provided by
statute. See id. § 5D1.3(c). They also similarly explain the special conditions that are
recommended for particular cases, such as when the defendant has dependents, debt
obligations, substance abuse problems, mental health difficulties, or, as relevant to this
case, sex offense convictions. See id. § 5D1.3(d). For sex offenders, the Guidelines
recommend requiring participation in a treatment program, limiting computer use, and
requiring consent to random, warrantless searches of person and property. See id. §
5D1.3(d)(7).
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Taking these two sources together reveals a system that vests substantial discretion
in the district court for determining the length and conditions of supervision. The
defendant’s assigned probation officer also has discretion and plays a significant role in the
day-to-day management of supervised release. For example, the probation officer provides
the defendant with instructions on reporting, provides authorization as to appropriate living
situations, determines whether the defendant can leave the judicial district in which he
resides, and visits and inspects the defendant’s home for contraband items. See id. §
5D1.3(c), (d)(7)(C). The probation officer is required to report certain violations of
supervised release to the court but has discretion not to report minor violations when there
is no pattern of non-adherence and the violation does “not present an undue risk to an
individual or the public.” Id. § 7B1.2; see also 8E Guide to Judiciary Policy and
Procedures, Supervision of Federal Offenders § 620.40 (2010) (outlining different possible
probation officer responses to supervised release violations). Thus, the district court and
the probation officer work together with substantial statutory and Guidelines discretion in
the crafting and management of supervised release.
B.
This system of supervised release serves several purposes as demonstrated by the
selected sentencing factors that § 3583 mandates courts consider when setting the term and
conditions of supervised release. See 18 U.S.C. § 3583(c) (referencing some, but not all,
of the sentencing factors in 18 U.S.C. § 3553). Key among these are protection of the
public, see id. § 3553(a)(2)(C), and rehabilitation of the defendant, see id. § 3553(a)(2)(D).
In order to meet both of those purposes, supervised release represents a bridge or
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transitional period from the restrictions of full-scale incarceration to the complete absence
of restrictions that comes from outright release. See S. Rep. No. 98-225, at 124 (1983),
reprinted in 1984 U.S.C.C.A.N. 3182, 3307 (“[T]he primary goal of such a term is to ease
the defendant’s transition into the community . . . or to provide rehabilitation.”). The goals
of protecting the public and rehabilitating the defendant need not be at cross-purposes—
the public is better protected when the defendant is rehabilitated and success is more likely
without a sudden shift from the completely structured life of incarceration to a completely
unstructured one outside the prison walls. See, e.g., Johnson v. United States, 529 U.S.
694, 708–09 (2000) (“The congressional policy in providing for a term of supervised
release after incarceration is to improve the odds of a successful transition from the prison
to liberty.”); Note, Parole: A Critique of Its Legal Foundations and Conditions, 38 N.Y.U.
L. Rev. 702, 702 (1963) (noting, in the parole context, “the legislative conviction that it is
more desirable to return the offender to freedom through a period of controlled liberty than
abruptly to return him to complete freedom at the termination of his prison sentence”). The
statute acknowledges the possibility of some tension in supervised release between
protecting the public and assisting the defendant in getting back on his feet. Congress
provided district courts with guidance for resolving that tension—the conditions should
“involve[] no greater deprivation of liberty than is reasonably necessary for the purposes,”
such as public protection, of supervised release. 18 U.S.C. § 3583(d)(2).
In addition to these statutory purposes, supervised release also represents an act of
faith that conditions less than full-scale incarceration will reduce recidivism and repetition
of the misconduct that landed the defendant in jail in the first place. See, e.g., United States
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v. Siegel, 753 F.3d 705, 708–09 (7th Cir. 2014) (discussing the role of supervised release
in reducing recidivism); United States v. Rivera, 192 F.3d 81, 87–88 (2d Cir. 1999)
(recognizing the relationship between the term of imprisonment and the term of supervised
release in preventing recidivism). But this faith must not be blind. Rather, it must be
backed up with meaningful restrictions and reporting requirements or else judges,
Congress, and the public will lose confidence in the system’s ability both to deter and
rehabilitate. After all, it was such a loss in confidence that led to the elimination of parole.
See generally Fiona Doherty, Indeterminate Sentencing Returns: The Invention of
Supervised Release, 88 N.Y.U. L. Rev. 958, 991–97 (2013) (discussing “a deep mistrust
of the system” due to its arbitrariness, its “vagueness and uncertainty,” and questions as to
its efficacy in rehabilitation as reasons for federal parole’s ultimate demise, id. at 992). To
avoid a repeat, supervised release must be seen to actually, not just theoretically, work.
III.
In this appeal, Hamilton challenges three special conditions of supervised release:
the employment restriction, the Internet restriction, and the location restriction. We address
them seriatim.
We review the imposition of special conditions of supervised release “for abuse of
discretion, recognizing that district courts have ‘broad latitude’ in this space.” United
States v. Van Donk, 961 F.3d 314, 321 (4th Cir. 2020) (quoting United States v. Dotson,
324 F.3d 256, 260 (4th Cir. 2003)). As noted in the previous section, discretion is baked
into this system at two levels. First, the district judge has substantial discretion in setting
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the terms and conditions of release. Second, the probation officer has significant discretion
in applying and monitoring the terms and conditions set by the court.
A.
The employment restriction states that Hamilton “must not work in any type of
employment without the prior approval of the probation officer.” J.A. 104. Defendant
argues that this “condition is not reasonably related to the facts of the case, and . . . is overly
broad in its scope.” Appellant Brief at 8–9. We agree that this condition was overbroad
and lacked a sufficient nexus to the nature and circumstances of the offense.
Although the statutory grant of authority to district courts does not limit the kinds
of special conditions they may impose, it does require that any such condition be
“reasonably related to,” inter alia, “the nature and circumstances of the offense and the
history and characteristics of the defendant.” 18 U.S.C. §§ 3553(a)(1), 3583(d)(1); see also
U.S.S.G. § 5D1.3(b) (2018). Furthermore, the condition must “involve[] no greater
deprivation of liberty than is reasonably necessary” to effectuate the statutory purposes. 18
U.S.C. § 3583(d)(2); see also U.S.S.G. § 5D1.3(b). The Guidelines, moreover, provide
greater specificity for the imposition of occupational restrictions. Sentencing “court[s]
may impose a condition . . . prohibiting the defendant from engaging in a specified
occupation, business, or profession, or limiting the terms on which the defendant may do
so, only if [they] determine that: (1) a reasonably direct relationship existed between the
defendant’s occupation, business, or profession and the conduct relevant to the offense of
conviction; and (2) imposition of such a restriction is reasonably necessary to protect the
public because there is reason to believe that, absent such restriction, the defendant will
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continue to engage in unlawful conduct similar to that for which the defendant was
convicted.” U.S.S.G. § 5F1.5(a). The Guidelines further stipulate that if the court imposes
such an occupational restriction, it “shall impose the condition for the minimum time and
to the minimum extent necessary to protect the public.” Id. § 1.5(b). As the Seventh Circuit
explained, “an occupation restriction requires a nexus between the underlying offense of
conviction and the occupational ban.” United States v. Farmer, 755 F.3d 849, 855 (7th
Cir. 2014).
To ensure comportment with the statutory requirements, “[a] sentencing court must
provide an individualized explanation for why any special conditions it imposes are
appropriate in light of the § 3583(d) factors.” United States v. Van Donk, 961 F.3d 314,
322 (4th Cir. 2020). The district court explained that the concern animating the
employment condition was Hamilton’s “ability to come into contact with children that he
can prey upon” and noted that “there’s a multitude of ways and different types of
employment that he can come into contact with potential victims.” J.A. 49. The court’s
rationale for the condition was that it was “reasonable and necessary to protect the public,”
that there were too many problematic occupations for her to name them with specificity,
and that defendant’s “actions . . . involved deception,” which made him “exactly the type
of defendant who needs some hard, firm rules.” J.A. 49–52.
Some restriction on employment may indeed be in order, but the all-encompassing
restriction here lacks an appropriate nexus to “the nature and circumstances of the offense.”
18 U.S.C. § 3553(a)(1). And the district court did not explain how, under the Guidelines,
there was “a reasonably direct relationship . . . between the defendant’s occupation . . . and
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the conduct relevant to the offense.” U.S.S.G. § 5F1.5(a). The employment restriction was
not limited, for example, to jobs that involve regular or private contact with minors, or to
occupations that would provide Hamilton ready opportunity to ply his proclivities for child
sexual abuse. Like the self-employment ban the Seventh Circuit confronted in Farmer,
there is not a “‘reasonably direct relationship’ between” defendant’s “conduct relevant to
the offense of conviction” and “the occupation being restricted.” 755 F.3d at 856 (quoting
U.S.S.G. § 5F1.5(a)). There must be some tailoring of the condition to the circumstances
of the case.
The overbreadth and vagueness of the condition leads to a second problem: the
probation officer has completely unguided discretion. Unlike an employment condition
that prohibits certain types of employment or jobs that involve interacting with certain
groups of people, this condition provides Hamilton’s probation officer with no bounds on
how to exercise his discretion. This lack of “a more definitive standard to guide the
probation officer’s discretion” gives the officer “an unfettered power of interpretation” that
effectively “delegat[es] . . . ‘basic policy matters . . . for resolution on an ad hoc and
subjective basis’” without providing meaningful guidance to defendant as to the kinds of
employment he may accept upon his release. United States v. Loy, 237 F.3d 251, 266 (3d
Cir. 2001) (quoting Grayned v. City of Rockford, 408 U.S. 104, 109 (1972)).
This is not to deny probation officers a significant measure of discretion. We
recognize the difficulty of writing restrictions that protect the public without turning the
conditions sheet into a prolix code of Hammurabian proportions. The “conditions . . . need
not ‘describe every possible permutation, or spell out every last, self-evident detail’” but
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can vest some interpretive role in the officer. Van Donk, 961 F.3d at 325 (quoting United
States v. Johnson, 446 F.3d 272, 280 (2d Cir. 2006)). There simply need to be some general
parameters set on that discretion related to the record in this case.
Nothing in our decision prohibits the imposition of some special condition on
Hamilton’s employment prospects. But instructing the probation officer to approve
employment opportunities that pose minimal risk of problematic contact with children
would seem to assist rather than impair the Guidelines’ rehabilitative goals. Withal, we do
not think it advisable to attempt to devise a term and condition of supervised release from
this altitude. The most appropriate course of action is to vacate this condition and remand
with directions to the district court—which has a far better view of the whole record in this
case—to craft more precisely an employment restriction that bears a nexus to the
defendant’s particular misconduct without jeopardizing the salient goal of safeguarding
children’s safety.
B.
We turn next to Hamilton’s challenge to the Internet condition. The eleventh special
condition prohibits defendant from “access[ing] the Internet except for reasons approved
in advance by the probation officer.” J.A. 104. He “argues that this special condition is
impermissibly overly broad” because his supervised release “will last his entire lifetime.”
Appellant Brief at 11. We reject this challenge.
Around the country, courts have confronted Internet restrictions similar to this one
and some have found them to be too stringent. See, e.g., United States v. Perazza-Mercado,
553 F.3d 65, 73–74 (1st Cir. 2009) (vacating a categorical residential Internet ban); United
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States v. Voelker, 489 F.3d 139, 144 (3d Cir. 2007) (vacating total computer and Internet
ban); United States v. Holm, 326 F.3d 872, 877–78 (7th Cir. 2003) (vacating ban on
possession “or use of computers with Internet capability”). This court too has confronted
the issue and found that condition to be unwarranted. See United States v. Ellis, --- F.3d -
---, 2021 WL 68064 (4th Cir. Jan. 8, 2021). As both Ellis and our sister circuits have
recognized, the Internet is crucial in findings jobs, paying bills, and navigating life in this
digital age. See, e.g., United States v. LaCoste, 821 F.3d 1187, 1191 (9th Cir. 2016) (“Use
of the Internet is vital for a wide range of routine activities in today's world . . . .”). We are
conscious of the fact that this kind of condition is a very significant impediment on a
person, and we by no means think that it is appropriate in every case. See, e.g., Ellis, 2021
WL 68064, at *6 (vacating total Internet ban after finding no “evidence linking
[defendant’s] offense or criminal history to unlawful use of the internet”). However, the
particular facts and circumstances of this case set it apart from those overly broad bans,
and the district court justified it on those very facts.
This condition clearly meets the statutory requirements of § 3583(d), as there is both
a connection to “the nature and circumstances of the offense and the history and
characteristics of the defendant” and a need “to protect the public from further crimes of
the defendant.” 18 U.S.C. § 3553(a)(1), (2)(C). As Chief Judge Groh explained when
imposing the condition, “the internet was the mechanism by which the defendant
committed this crime.” J.A. 55. The Internet was “how he found the victim in this case”
and the Internet was how he “contacted her after [the kidnapping] when she was in
treatment.” J.A. 53–54.
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There are two key threads running through the cases vacating a total Internet ban,
which distinguish Hamilton’s situation from those cases. First, in many cases, there is
simply “no evidence of online criminality at all.” Ellis, 2021 WL 68064, at *6 n.8; see
also, e.g., Perazza-Mercado, 553 F.3d at 69 (vacating the ban “where the defendant ha[d]
no history of impermissible internet use”); United States v. Eaglin, 913 F.3d 88, 97 (2d Cir.
2019) (finding that the Internet had nothing to do with the defendant’s “offense of failing
to register as a sex offender”). Hamilton’s offense is far afield from these circumstances.
There is no dispute that defendant used the Internet to find his victim, communicate with
her for months, and coerce her into creating and sending him a torrent of sexually explicit
images.
For cases in which there is Internet criminality, the second thread distinguishes
between “non-contact child pornography activity, or similar conduct, on the internet”—in
which a total ban sweeps too broadly, Ellis, 2021 WL 68064, at *8—and cases in which
there is contact with a minor, such as this one. Compare Holm, 326 F.3d at 878 (vacating
total Internet ban after child pornography conviction because there was not “at least some
evidence of the defendant’s own outbound use of the Internet to initiate and facilitate
victimization of children”); United States v. Sofsky, 287 F.3d 122, 126–27 (2d Cir. 2002)
(vacating total Internet ban where defendant had received child pornography over the
Internet); United States v. Wiedower, 634 F.3d 490, 495 (8th Cir. 2011) (vacating total
Internet ban where defendant had sought out and received child pornography over the
Internet); with United States v. Paul, 274 F.3d 155, 168 (5th Cir. 2001) (upholding total
Internet ban where defendant not only possessed child pornography, but also advised others
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“how to ‘scout’ single, dysfunctional parents and gain access to their children”); United
States v. Crandon, 173 F.3d 122, 125, 127–28 (3d Cir. 1999) (upholding total Internet ban
where defendant used Internet “to develop an illegal sexual relationship with a young girl
over a period of several months” that led to statutory rape of the victim, id. at 127). Again,
there is no dispute that Hamilton had sexual contact with an underaged girl, which led not
only to the creation of some of the pornographic material underlying his charge, but
eventually to his repeated raping and kidnapping his victim. Without defendant’s access
to the Internet, none of this tragic sequence would have transpired.
The First Circuit has articulated three factors with which to analyze broad
restrictions on Internet access: “(1) the defendant used the internet in the underlying
offense; (2) the defendant had a history of improperly using the internet to engage in illegal
conduct; or (3) particular and identifiable characteristics of the defendant suggested that
such a restriction was warranted.” Perazza-Mercado, 553 F.3d at 70. All three factors
suggest the Internet restriction was justified in this case. There is no question that
defendant used the Internet to commit this offense. As the government discussed at
sentencing, Hamilton also has “a history of enticing minors to send him sexually explicit
pictures” and “a history of violence towards girls.” J.A. 79. Finally, defendant has the
“particular and identifiable characteristic[]” of defying restrictions placed upon him. In
this very case, Hamilton used social media to have one of A.C.’s friends send her a message
on his behalf in defiance of a protective order that prohibited his contact with her of any
kind. J.A. 82. The defendant’s history of willful disobedience of court orders suggests
that a more narrowly tailored ban is not sufficient to meet the statutory goal of “protect[ing]
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the public from further crimes of the defendant.” 18 U.S.C. § 3553(a)(2)(C). And that is
precisely what Chief Judge Groh found when she rejected defendant’s objection. See J.A.
55. The special condition is necessary to prevent this kind of misconduct from ever
happening again.
Hamilton protests that the Internet restriction is for life, and we note that the
statutory scheme is not without some flexibility. Section 3583 allows for the modification
of supervised release if “such action is warranted by the conduct of the defendant released
and the interest of justice.” 18 U.S.C. § 3583(e)(1). If Hamilton goes in for treatment, has
a period of good behavior, and makes demonstrable progress over a sustained period of
time, perhaps the court (or probation officer, whose advance approval for Internet usage is
presently required) might allow some Internet usage with the installation of a monitoring
device. But that is all in the speculative and contingent future, and we do not presume to
suggest how or when or whether the condition should be modified or what changes must
come to pass before such a modification is considered.
We thus reject Hamilton’s challenge to the Internet restriction.
C.
Finally, we consider the restriction on defendant’s movement. The twelfth special
condition of supervision prohibits Hamilton from “go[ing] to, or remain[ing] at, any place
where [he] know[s] children under the age of 18 are likely to be, including parks, schools,
playgrounds, ball fields, childcare facilities, movies, and arcades.” J.A. 104. Defendant
argues that this condition is “overly broad and impermissibly vague.” Appellant Brief at
13. We disagree.
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The district court rejected Hamilton’s objection to this restriction because it was
“absolutely necessary to protect the public against this defendant.” J.A. 57–58. Chief
Judge Groh explained that the list of places, the probation officer, and common sense could
provide guidance as to whether a given location was somewhere defendant was allowed to
be. See J.A. 58.
Given the statutory factors and defendant’s conduct, this condition is not overbroad.
It is not a restriction “greater than necessary . . . to protect the public from further crimes
of the defendant” given “the nature and circumstances of the offense and the history and
characteristics of the defendant.” 18 U.S.C. § 3553(a). As noted before the district court,
Hamilton “has a history of enticing minors” and his cell phone pinged at the victim’s
address after the police had rescued her from him. J.A. 21, 79. This suggests Hamilton’s
inability to stay away from places that he ought not be. Thus, a broad term is necessary to
protect the public.
As our sister circuits have found, this kind of restriction is also not too vague. See,
e.g., United States v. MacMillen, 544 F.3d 71, 75–76 (2d Cir. 2008); United States v.
Crume, 422 F.3d 728, 733–34 (8th Cir. 2005); United States v. Taylor, 338 F.3d 1280,
1286 (11th Cir. 2003); Paul, 274 F.3d at 165–67. “A condition of supervised release is
unconstitutionally vague if it doesn’t give a probationer ‘fair notice of the conduct that it
punishes’ or is ‘so standardless that it invites arbitrary enforcement.’” Van Donk, 961 F.3d
at 323–24 (quoting Johnson v. United States, 135 S. Ct. 2551, 2556 (2015)). As the Fifth
Circuit noted in Paul, “courts must inevitably use categorical terms to frame the contours
of supervised release conditions” and those “terms can provide adequate notice of
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prohibited conduct when there is a commonsense understanding of what activities the
categories encompass.” Paul, 274 F.3d at 167. The movement restriction here provides
examples of prohibited places, and defendant can use common sense and consult his
probation officer if there is any doubt as to a particular location. See Van Donk, 961 F.3d
at 324 (“Vagueness issues are mitigated where the regulated party has ‘the ability to clarify
the meaning of the regulation by [his] own inquiry.’” (quoting Vill. of Hoffman Estates v.
Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498 (1982))). And there is no concern of
inadvertent violation because the term covers only places he “know[s]” children “are likely
to be.” See MacMillen, 544 F.3d at 76. The knowledge requirement alleviates the fair
notice concern inherent in vagueness challenges. Van Donk, 961 F.3d at 325 (“A scienter
requirement like this mitigates vagueness concerns.”); see also United States v. Burroughs,
613 F.3d 233, 246 (D.C. Cir. 2010) (noting that an associational restriction does not cover
“inadvertent or chance contact,” rendering it unobjectionable).
In sum, we uphold this condition of supervised release as it is neither overly broad
nor vague.
IV.
For the foregoing reasons, we affirm the judgment of the district court as to the
Internet restriction and the movement restriction and vacate it as to the employment
restriction and remand for further proceedings consistent with this opinion.
AFFIRMED IN PART AND
VACATED AND REMANDED IN PART
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