United States v. Gary DeBolt ( 2021 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-6388
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GARY RAY DEBOLT,
Defendant - Appellant.
Appeal from the United States District Court for the Northern District of West Virginia, at
Wheeling. John Preston Bailey, District Judge. (5:09-cr-00024-JPB-JPM-1)
Submitted: February 26, 2021 Decided: March 9, 2021
Before WYNN and THACKER, Circuit Judges, and SHEDD, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Gary Ray DeBolt, Appellant Pro Se. David J. Perri, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gary Ray DeBolt appeals the district court’s order denying DeBolt’s 18 U.S.C.
§ 3583(e)(2) motion to terminate or modify the conditions of his supervised release and
denying his motion for a stay of execution of his supervised release conditions. DeBolt
argues that the district court erred in denying his § 3583(e)(2) motion and erred in failing
to consider his actual innocence claim. For the following reasons, we affirm.
The district court properly dismissed the majority of DeBolt’s challenges to his
supervised release conditions. We recently held in United States v. McLeod, 972 F.3d 637,
643-44 (4th Cir. 2020), that “[a]n individual may not use § 3583(e)(2) as a substitute for
an appeal, belatedly raising challenges to the original conditions of supervised release that
were available at the time of his initial sentencing.” However, a § 3583(e)(2) motion may
be predicated on “new, unforeseen, or changed legal or factual circumstances.” Id. at 644.
With the sole exception of one supervised release condition that requires DeBolt to obtain
the approval of his probation officer or the court before using certain electronic devices,
DeBolt’s challenges to his supervised release conditions are “impermissible” because they
rely on “factual and legal premises that existed at the time of his sentencing.” Id.
We conclude, however, that DeBolt’s challenge to the supervised release condition
regarding access to computers is cognizable under McLeod because the Supreme Court’s
ruling in Packingham v. North Carolina, 137 S. Ct. 1730 (2017), on which DeBolt relied
in challenging this condition, is a “new legal circumstance[]” and this challenge “could not
have been brought at the time supervised release was imposed” in 2011. McLeod, 972 F.3d
at 644. The district court found that, if it possessed jurisdiction, it would deny DeBolt’s
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challenge on the merits. We review a district court’s ruling on a motion to modify
conditions of supervised release for abuse of discretion. See United States v. Trimble, 969
F.3d 853, 856 (8th Cir. 2020). We have reviewed the record and the district court did not
abuse its discretion in determining that this supervised release condition was not
unconstitutional after Packingham.
Finally, because DeBolt’s informal brief does not challenge the basis for the district
court’s disposition of his actual innocence claim, he has forfeited appellate review of the
court’s order denying this claim. See 4th Cir. R. 34(b); Jackson v. Lightsey, 775 F.3d 170,
177 (4th Cir. 2014) (“The informal brief is an important document; under Fourth Circuit
rules, our review is limited to issues preserved in that brief.”).
Accordingly, we deny DeBolt’s motion for a stay pending appeal and affirm the
district court’s order. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before this court and argument would
not aid the decisional process.
AFFIRMED
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