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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-14678
Non-Argument Calendar
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D.C. Docket No. 2:08-cr-14021-DLG-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JACK ALDRICH,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(August 22, 2019)
Before WILSON, GRANT, and HULL, Circuit Judges.
PER CURIAM:
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Jack Aldrich appeals the district court’s denial of his motion to modify a
special condition of supervised release. He has also filed a “motion to appeal,”
contending that the district court failed to consider issues that he raised in the
motion for modification. The district court did not abuse its discretion in denying
Aldrich’s motion to modify the supervised release condition because the relevant
statutory factors and binding precedent support the condition. We therefore affirm
the order of the district court and deny Aldrich’s motion to appeal as moot.
I.
In May 2008, Aldrich pleaded guilty to a single count of using a computer to
persuade, induce, entice, or coerce a minor to engage in sexual activity, and
attempting to do so, in violation of 18 U.S.C. § 2422(b). The offense conduct
arose from a series of communications, via Internet chatroom and phone, between
Aldrich and an undercover officer (“UC”) posing as a 15-year-old female and
involved Aldrich masturbating in front of the UC through a web camera. In
addition to admitting to these communications during a post-arrest interview,
Aldrich admitted to recent communications with a 14-year-old female, as well as to
a 1993 arrest for masturbating in front of female high school students.
In September 2008, Aldrich was sentenced to a term of 168 months’
imprisonment followed by a lifetime term of supervised release. The district court
imposed the following “computer possession restriction” as a special condition of
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supervised release: “The defendant shall not possess or use any computer; except
that the defendant may, with the prior approval of the Court, use a computer in
connection with authorized employment.”
Ten years later, Aldrich filed a motion to modify the computer possession
restriction pursuant to 18 U.S.C. § 3583(e)(2), which governs the modification of
supervised release conditions. Aldrich first argued that the condition was
inconsistent with the 18 U.S.C. § 3553(a) factors referenced in 18 U.S.C.
§ 3583(d), which governs the imposition of supervised release conditions. Aldrich
contended that the condition would make getting a job “extremely difficult,” that
its reference to “authorized employment” was ambiguous, and that gaining court
approval for computer usage would impede his job prospects. He also asserted that
the condition was unnecessary to protect the public and would have a negative
impact on his ability to access certain training programs and information. Second,
and relatedly, Aldrich argued that the condition imposed a greater deprivation of
liberty than reasonably necessary. Finally, relying, in part, on Packingham v.
North Carolina,
137 S. Ct. 1730 (2017), Aldrich argued that the condition violated
the First Amendment. He attached to the motion a statement indicating that he had
not been disciplined while in prison and had been allowed to use a computer for
certain purposes without incident, as well as records detailing his educational and
work history while in prison.
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The government responded that Aldrich’s motion was premature because it
was “filled with conjecture about events that may or may not happen” upon his
expected release from custody, and that although Aldrich had behaved well in
prison, the court did not know how he would conduct himself later. The
government argued that Aldrich’s history and characteristics, the serious nature of
the offense, deterrence, and public protection all weighed in favor of denying the
motion without prejudice.
In October 2018, the district court, “having reviewed the record” and the
government’s opposition, denied Aldrich’s motion without prejudice as premature.
The court stated that Aldrich could refile his motion upon his release from prison,
at which time he could present “any actual, ‘real life scenario and facts’ regarding
his employment etc.” relating to the condition.
II.
We review the denial of a motion to modify the conditions of supervised
release for an abuse of discretion. See United States v. Serrapio,
754 F.3d 1312,
1318 (11th Cir. 2014) (reviewing modification of a condition of probation under
this standard). Under this standard, we will not reverse absent a “definite and firm
conviction that the [district] court committed a clear error of judgment in the
conclusion it reached.” United States v. Taylor,
338 F.3d 1280, 1283 (11th Cir.
2003) (per curiam) (alteration in original) (citation omitted).
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III.
In imposing or modifying a condition of supervised release, a district court is
required to take into consideration certain factors set forth in 18 U.S.C. § 3553(a).
See 18 U.S.C. § 3583(d), (e); see also U.S.S.G. § 5D1.3(b). With respect to the
modification of a supervised release condition, the relevant factors are: (1) the
nature and circumstances of the offense; (2) the defendant’s history and
characteristics; (3) the need for deterrence; (4) the need to protect the public;
(5) the need to provide the defendant with educational and vocational training,
medical care, or correctional treatment; (6) the applicable guideline range; (7) any
pertinent policy statements set forth by the Sentencing Commission; (8) the need to
avoid unwarranted sentencing disparities; and (9) the need to provide restitution.
See 18 U.S.C. § 3583(e) (citing 18 U.S.C. § 3553(a)(1), (2)(B)–(D), (4)–(7)). “It is
not necessary for a special condition to be supported by each § 3553(a) factor;
rather, each factor is an independent consideration to be weighed.” United States v.
Tome,
611 F.3d 1371, 1376 (11th Cir. 2010). For sex offenses, the Sentencing
Guidelines include a policy statement recommending “[a] condition limiting the
use of a computer or an interactive computer service in cases in which the
defendant used such items.” U.S.S.G. § 5D1.3(d)(7)(B).
In general, a claim is not ripe for review “if it rests upon contingent future
events that may not occur as anticipated, or indeed may not occur at all.” Texas v.
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United States,
523 U.S. 296, 300 (1998) (citation and internal quotation marks
omitted). In United States v. Zinn, we held that although a prisoner’s challenge to
the imposition of a supervised release condition requiring him to submit to
polygraph testing as part of his sex offender treatment was generally ripe for
review, speculative arguments concerning the implementation of the condition
were not.
321 F.3d 1084, 1088–89, 90–92 (11th Cir. 2003) (rejecting arguments
against polygraph testing, in which defendant contended that he may be forced to
answer an incriminating question or that the probation officer overseeing testing
might abuse his authority, as hypothetical).
A sentencing court need not discuss each § 3553(a) factor or even explicitly
state that the § 3553(a) factors were considered as long as the record clearly
implies that they were taken into account. See United States v. Johnson,
877 F.3d
993, 998 (11th Cir. 2017) (per curiam). For example, in the context of a motion to
reduce sentence, a short order stating that the district court had reviewed the
record, the defendant’s motion, and the government’s opposition provided
sufficient reason for denying the motion; notably, both the defendant’s motion and
the government’s discussed the § 3553(a) factors. See United States v. Eggersdorf,
126 F.3d 1318, 1322–23 (11th Cir. 1997).
While a condition of supervised release “should not unduly restrict a
defendant’s liberty, a condition is not invalid simply because it affects a
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probationer’s ability to exercise constitutionally protected rights.”
Tome, 611 F.3d
at 1376 (citation and internal quotation marks omitted). In numerous decisions
involving sex offenses that relied upon a computer, we have uniformly “upheld
conditions limiting computer access, emphasizing that such access could well
enable a sex offender to offend once again.” United States v. Carpenter,
803 F.3d
1224, 1239 (11th Cir. 2015). When we first addressed this issue in Zinn, we
recognized the importance of the Internet as a resource for information,
communication, and commerce.
Zinn, 321 F.3d at 1092–93. Nevertheless, we
affirmed the imposition of a three-year condition prohibiting a defendant from
using a computer with Internet access without his probation officer’s approval
because the facts of that case—which involved digital images of child pornography
presumably obtained from the Internet—highlighted the need to protect the public
and sex offenders themselves from potential Internet abuses.
Id. at 1093 & n.11.
We also concluded that the condition was narrowly tailored because the defendant
could still use the Internet with the permission of his probation officer.
Id. at 1093.
More recently, in Carpenter, we affirmed on plain-error review the imposition of a
lifetime supervised release condition prohibiting a defendant from using any
computer or access device except in connection with authorized employment and
with prior court approval.
Carpenter, 803 F.3d at 1239–40.
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In 2017, the Supreme Court struck down on First Amendment grounds a
North Carolina statute making it a felony for any registered sex offender to access
social networking websites where minors could also become members.
Packingham, 137 S. Ct. at 1736–37. The Court observed that the statute was not
narrowly tailored to preventing sex crimes against minors and was directed to
persons who had already served their sentences and were no longer subject to court
supervision.
Id. at 1737.
Aldrich’s arguments that the computer possession restriction would make it
difficult to gain employment and would have a negative impact on his ability to
access training programs or other information were premature because they were
contingent upon hypothetical events that may or may not occur upon his release
from prison. See
Texas, 523 U.S. at 300;
Zinn, 321 F.3d at 1090–92. But his other
arguments—generally contending that the condition involved a greater deprivation
of liberty than necessary or violated the First Amendment—may not have been
premature because he will ultimately be subject to the condition upon release. See
Zinn, 321 F.3d at 1088–89. But even if Aldrich’s motion was not premature in its
entirety, the district court did not abuse its discretion in denying it without
reference to the § 3553(a) factors or Aldrich’s other arguments.
First, the record as a whole demonstrates that the § 3553(a) factors were
properly considered. Aldrich’s motion discussed the § 3553(a) factors, the
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government responded that “[t]he history and characteristics of the defendant, the
serious nature of the offense, deterrence, and public protection,” supported denying
the motion, and the district court stated that it had considered the record and the
government’s opposition, all of which is sufficient to support a finding that the
relevant statutory factors were taken into account, despite the court’s conclusion
that the motion was premature. See
Eggersdorf, 126 F.3d at 1322–23. Moreover,
given Aldrich’s prior conduct, the fact that the instant offense relied on a computer,
and precedent holding that an Internet usage restriction can protect both the public
and sex offenders, the factors referenced by the government support the retention
of the special condition. See
Zinn, 321 F.3d at 1093.
Second, to the extent that it had jurisdiction to consider them, the district
court did not abuse its discretion in rejecting Aldrich’s other arguments without
comment. This Court has upheld similar computer usage conditions, which are
recommended by the sentencing guidelines, as narrowly tailored. See id.; U.S.S.G.
§ 5D1.3(d)(7)(B). As to Aldrich’s First Amendment challenge, Packingham is
distinguishable in that it restricted social media access for all registered sex
offenders, regardless of the nature of their crime, and notwithstanding the fact that
they had completed their sentences and were no longer under court supervision.
See
Packingham, 137 S. Ct. at 1737.
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IV.
For the reasons set forth above, the district court’s denial of Aldrich’s
motion to modify a special condition of supervised release is AFFIRMED.
Aldrich’s motion to appeal is DENIED as moot.
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