United States v. Brandon Whitten ( 2021 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-6506
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRANDON WALKER WHITTEN,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of Virginia, at
Roanoke. Glen E. Conrad, Senior District Judge. (7:14-cr-00049-GEC-1)
Submitted: November 5, 2020 Decided: March 11, 2021
Before GREGORY, Chief Judge, WILKINSON, Circuit Judge, and SHEDD, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Brandon Walker Whitten, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Brandon Walker Whitten filed a motion under 18 U.S.C. § 3583(e)(2) to modify
conditions of his supervised release in May 2017. He challenged as overly restrictive the
conditions that banned adult pornography; restricted his use of electronic devices;
prohibited him from “be[ing] in the company of or hav[ing] contact with children under
the age of 18”; and required notice “within 72 hours of establishing an ongoing romantic
relationship.” Whitten also moved for appointment of counsel. In April 2018, the district
court granted in part and denied in part the § 3583(e)(2) motion and denied the motion for
counsel. The court agreed to add a sentence to the restriction on contact with minors,
clarifying that the condition “does not encompass incidental contact,” but upheld the other
conditions. Whitten timely appealed to this Court.
While Whitten’s appeal was pending, the district court revoked his supervised
release. In the revocation sentence, the court imposed another term of supervised release
that did not impose an adult pornography restriction, a blanket ban on being in the presence
of minors, or a notice requirement related to romantic relationships. Whitten’s appeal is
moot as to these restrictions to which he is no longer subject. See United States v. Ketter,
903 F.3d 61, 65 (4th Cir. 2018) (“Because mootness is jurisdictional, we can and must
consider it even if neither party has raised it.”).
The court largely re-imposed, however, the restrictions on Whitten’s access to
electronic devices. Whitten “may not purchase, possess, or use any computer . . ., cellular
telephone, or other Internet-capable device without the prior approval or the court [sic],”
and “shall not purchase, possess, or use any camera or video recording devices without the
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approval of the probation officer.” Whitten challenged these conditions in his § 3583(e)(2)
motion as “insufficiently tailored” and “overly constricting” under § 3583(d)(2).
A § 3583(e)(2) challenge to the lawfulness of a release condition may not “rest[] on
the factual and legal premises that existed at the time of [the] sentencing.” United States
v. McLeod, 972 F.3d 637, 642–44 (4th Cir. 2020). But such a challenge is permissible
when premised on “new, unforeseen, or changed legal or factual circumstances.” Id. Here,
Whitten’s motion initially rested only on legal premises that should have been raised at
sentencing and on direct appeal, precluding § 3583(e)(2) relief. See id. However, legal
circumstances have since changed considerably. Two recent cases developed the standard
governing § 3583(d)’s application to internet restrictions.
In United States v. Ellis, we explained that a ban on internet access will rarely be
“reasonably necessary” because it is “a particularly broad restriction that imposes a
massive deprivation of liberty,” and more narrowly tailored restrictions tend to be
available. 984 F.3d 1092, 1104–05 (4th Cir. 2021). Therefore, considering that the record
contained no evidence of online criminality, we held that the internet ban at issue was
overbroad. Id. Then, in United States v. Hamilton, we upheld an internet ban. 986 F.3d
413, 421–23 (4th Cir. 2021). Because the offense involved direct contact with a minor via
the internet, and the defendant had a history of engaging in illegal conduct online, we found
the internet restriction complied with § 3583(d). * Id.
*
While neither of these precedents involved a further ban on non-internet usage of
computers, cell phones, and other devices, they both cite cases that did involve such bans,
and they both discuss the liberty interests at stake. See Ellis, 984 F.3d 1102–05; Hamilton,
(Continued)
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Here, Whitten argued that the electronic device restrictions amount to “a total ban”
on devices that “have become significant and ordinary components of modern life,”
precluding him “from such benign purposes such as word processing . . ., paying a bill
online, taking educational classes online, or participating in a video conference.” Such a
challenge now requires application of Ellis and Hamilton. Whitten’s motion therefore rests
on changed legal circumstances and is properly raised via § 3583(e)(2). See McLeod, 972
F.3d at 642–44.
Because these legal circumstances changed while the § 3583(e)(2) motion was
pending appeal, we vacate the prior order and remand for the district court to apply these
developments in the first instance. We also vacate and remand as to the motion for
appointment of counsel for the district court to consider whether the changed circumstances
newly warrant appointment.
VACATED AND REMANDED
986 F.3d at 421–23. Therefore, they are relevant and applicable to conditions restricting
access to computers and cell phones as well.
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