United States v. Jeffrey P. Taylor , 796 F.3d 788 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-3790
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JEFFREY P. TAYLOR,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 11 CR 00112 — Rudy Lozano, Judge.
____________________
ARGUED MAY 22, 2015 — DECIDED AUGUST 6, 2015
____________________
Before EASTERBROOK, WILLIAMS, and HAMILTON, Circuit
Judges.
WILLIAMS, Circuit Judge. Jeffrey Taylor appeals several
special conditions of the probation he received after his sex-
ually explicit displays on a web camera and conversations in
an internet chatroom with what he thought to be a thirteen-
year-old girl. We agree with him that the record does not
support a ban on viewing legal adult pornography. Adult
pornography did not facilitate or lead to Taylor’s offense
2 No. 14-3790
here, and there is no evidence or finding that viewing oth-
erwise legal pornography would increase the likelihood he
would recidivate. In light of his use of his computer to at-
tempt to contact a young teenage girl, however, we affirm
the imposition of a condition that requires Taylor to make
his internet-capable devices available for inspection, even
without any reasonable suspicion that he has committed a
new crime. Finally, we agree with Taylor that the special
conditions as currently worded contain an overly broad
complete ban on knowing contact with minors.
I. BACKGROUND
Taylor’s case has been before our court twice. During his
most recent appeal, we summarized Taylor’s offense conduct
as follows:
On August 2, 2006, Taylor entered an online chat room
and began a conversation with “elliegirl1234.” “Ellie”
identified herself as a 13–year–old girl from Lafayette,
Indiana. Taylor responded that he was 37 and from Lo-
gansport. The conversation quickly became graphic as
Taylor described his physique and asked whether Ellie
had engaged in sexual acts with her boyfriend. Taylor
wanted to see Ellie [] masturbate in front of a webcam;
he asked her whether she had a webcam, but she indi-
cated that she did not. Taylor then turned on his webcam
and masturbated in front of it so that Ellie could see.
Taylor and Ellie conversed online on multiple occasions
over the next two weeks. The conversations were always
sexual in nature. On August 14 the conversation turned
to arranging a meeting in person, and Taylor asked Ellie
to fantasize about what would happen if the two met.
Taylor expressed some concern about meeting in person
because he “could go to jail.” (In an earlier conversation,
he had referred to Ellie as “jailbait.”) During this online
No. 14-3790 3
chat, Taylor masturbated a second time in front of his
webcam so that Ellie could see.
Ellie was not a 13–year–old girl but an online identity as-
sumed by law-enforcement personnel working on a joint
federal-state sting operation targeting child sex offend-
ers. One of the investigators used a picture of herself
from when she was 15 or 16 to help create the chat-room
profile.
United States v. Taylor, 777 F.3d 434, 437 (7th Cir. 2015).
A jury convicted Taylor of violating 18 U.S.C. § 2422(b),
although we overturned that conviction on appeal because
his conduct did not constitute “sexual activity” under that
statute. United States v. Taylor, 640 F.3d 255, 259-60 (7th Cir.
2011). The government then charged Taylor for the same
conduct under a different statute, this time 18 U.S.C. § 1470,
which punishes the transfer or attempted transfer of obscene
material to a person under the age of sixteen years through a
means of interstate commerce. A jury found Taylor guilty,
and he received a sentence of three years of probation. (The
judge recognized that Taylor had already served more than
four years in custody on the overturned conviction, which
exceeded the United States Sentencing Guidelines’ recom-
mendation for the new conviction.) The district court en-
tered final judgment on August 15, 2012.
Taylor filed his notice of appeal the next day. On Septem-
ber 25, 2014, while his appeal was pending, he filed a motion
asking the district court to modify the conditions of his pro-
bation. The district court granted in part and denied in part
this request in an order dated December 22, 2014. That same
day, Taylor filed a notice of appeal of the district court’s or-
der modifying the probation conditions. About a month lat-
er, we upheld Taylor’s conviction on appeal. United States v.
4 No. 14-3790
Taylor, 777 F.3d 434 (7th Cir. 2015). Taylor contests in this ap-
peal certain special conditions imposed in the December 22,
2014 order that modified the conditions of his probation.
II. ANALYSIS
A. Jurisdiction to Modify Special Conditions
An initial question is whether the district court had juris-
diction to enter the December 22, 2014 order modifying Tay-
lor’s conditions of probation. Because the district court’s or-
der came after Taylor filed his notice of appeal of his crimi-
nal conviction, one might wonder whether the district court
had the authority to modify the conditions of Taylor’s proba-
tion as it did. See Griggs v. Provident Consumer Disc., Co., 459
U.S. 56, 58 (1982) (per curiam) (“The filing of a notice of ap-
peal is an event of jurisdictional significance—it confers ju-
risdiction on the court of appeals and divests the district
court of its control over those aspects of the case involved in
the appeal.”). The government and Taylor both took the po-
sition during briefing that the district court had the authori-
ty, by virtue of 18 U.S.C. § 3563(c), to modify Taylor’s condi-
tions of probation even though the appeal of his conviction
was pending in our court. Nonetheless, we must fulfill our
independent obligation to ensure that federal courts have
subject-matter jurisdiction throughout the proceedings. See
United States v. Beard, 745 F.3d 288, 291 (7th Cir. 2014).
The statute at issue, 18 U.S.C. § 3563(c), provides that
“[t]he court may modify, reduce, or enlarge the conditions of
a sentence of probation at any time prior to the expiration or
termination of the term of probation … .” The question is
whether the words “at any time” in the statute give the dis-
No. 14-3790 5
trict court the authority to enter the order modifying the
conditions of probation when it did.
After the oral argument in this case, we considered an
analogous situation in United States v. Ramer, 787 F.3d 837
(7th Cir. 2015) (per curiam). There, a defendant was convict-
ed of conspiracy to commit wire fraud and sentenced to for-
ty-two months’ imprisonment and three years of supervised
release. Id. at 838. One special condition of supervised re-
lease ordered the payment of restitution “at a rate of not less
than $100 per month.” The defendant filed an appeal, argu-
ing that the restitution order should have been premised on
his ability to pay. While briefing was taking place in our
court, the district court amended its judgment to condition
the defendant’s restitution payment obligation on the de-
fendant’s ability to pay. Id.
Our first question was whether the district court had ju-
risdiction to revise the judgment since the defendant had al-
ready filed his notice of appeal. We recognized that ordinari-
ly, filing a notice of appeal means the district court no longer
has jurisdiction. Id. (citing United States v. Brown, 732 F.3d
781, 787 (7th Cir. 2013) and United States v. McHugh, 528 F.3d
538, 540 (7th Cir. 2008)). But we recognized there are excep-
tions. Id. (collecting cases). We assessed whether another ex-
ception to the general rule existed in 18 U.S.C. § 3583(e)(2),
which provides that district courts may “modify, reduce, or
enlarge the conditions of supervised release, at any time pri-
or to the expiration or termination of the term of supervised
release.” Id. Consistent with the First Circuit’s decision in
United States v. D’Amario, 412 F.3d 253 (1st Cir. 2005), we held
that Congress’s use of “at any time” in 18 U.S.C. § 3583(e)(2)
meant that the district court retained jurisdiction to modify
6 No. 14-3790
the defendant’s conditions of supervised release even while
his appeal was pending. Ramer, 787 F.3d at 838-39.
Ramer resolves the jurisdictional issue for us and means
that the district court had jurisdiction to modify Taylor’s
conditions of probation. The statute at issue for Taylor, 18
U.S.C. § 3563(c), contains the exact same language allowing
for modification “at any time” as does 18 U.S.C. § 3583(e)(2),
the supervised release provision at issue in Ramer; the only
difference is that one applies to conditions of probation and
the other to conditions of supervised release. That difference
is not material here, so the district court had jurisdiction to
modify Taylor’s conditions of probation as it did.
That is certainly not to say that the district court can
make any change it wishes after a notice of appeal has been
filed. See, e.g., Brown, 732 F.3d at 787 (district court lacked ju-
risdiction to recalculate guidelines range after notice of ap-
peal filed); McHugh, 528 F.3d at 540 (district court lacked au-
thority to make non-clerical change to sentence after notice
of appeal filed); see also In re Teknek, LLC, 563 F.3d 639, 650
(7th Cir. 2009). Griggs remains the law, and we remind liti-
gants to keep in mind Federal Rule of Criminal Procedure
37, which governs timely motions for relief that the district
court lacks authority to grant because of a pending appeal
(in the civil context, the rule is Federal Rule of Civil Proce-
dure 62.1), as well as our Circuit Rule 57.1 In light of our de-
1Circuit Rule 57 of the United States Court of Appeals for the Sev-
enth Circuit provides:
A party who during the pendency of an appeal has filed
a motion under Fed. R. Civ. 60(a) or 60 (b), or any other
rule that permits the modification of a final judgment,
should request the district court to indicate whether it is
No. 14-3790 7
cision in Ramer that the district court had the authority to
make the modification it did, no Circuit Rule 57 request was
needed here.
B. Challenges to Special Conditions of Probation
Satisfied that there is no jurisdictional impediment to
proceeding, we turn to the three special conditions of proba-
tion that Taylor challenges. Special conditions of probation
must be reasonably related to (1) the defendant’s offense,
history, and characteristics; (2) the need to reflect the seri-
ousness of the offense, promote respect for the law, and pro-
vide just punishment for the offense; (3) the need for ade-
quate deterrence; (4) the need to protect the public from fur-
ther crimes of the defendant; and (5) the need to provide the
defendant with treatment. 18 U.S.C. § 3563(b); see United
States v. Angle, 598 F.3d 352, 360-61 (7th Cir. 2010) (super-
vised release). Moreover, a special condition must not cause
a greater deprivation of liberty than is reasonably necessary
to achieve the goals of deterrence, protection of the public,
and rehabilitation. United States v. Goodwin, 717 F.3d 511, 522
(7th Cir. 2013). We review the district court’s decision to im-
pose a special condition for an abuse of discretion. See United
States v. Baker, 755 F.3d 515, 523 (7th Cir. 2014).
1. Viewing or Accessing Adult Pornography
The first special condition of probation that Taylor chal-
lenges bars him from viewing adult pornography and from
inclined to grant the motion. If the district court so indi-
cates, this court will remand the case for the purpose of
modifying the judgment. A party dissatisfied with the
judgment as modified must file a fresh notice of appeal.
8 No. 14-3790
knowingly visiting any place where adult pornography is
sold or available for viewing. The condition reads:
The defendant shall not knowingly view or listen to any
form of pornography which contains adults engaging in
sexual intercourse, oral sex, sex with objects or animals,
acts of masturbation, or the lascivious exhibition of geni-
talia. Additionally, the defendant shall not knowingly
patronize or visit any such establishment or internet
site/location where the above materials are sold, or
available for viewing.
This condition is not limited to child pornography, which is
illegal to possess. Instead, it bars Taylor from accessing adult
pornography that is otherwise legal. Cf. United States v. Cary,
775 F.3d 919, 926 (7th Cir. 2015) (discussing condition im-
posed upon defendant, who failed to register as a sex of-
fender, from viewing “illegal pornography” and noting it
did not prohibit him from viewing legal adult pornography).
“Adult pornography, unlike child pornography, enjoys
First Amendment protection, and so we must be especially
cautious when considering a ban on possessing adult por-
nography.” United States v. Shannon, 743 F.3d 496, 500 (7th
Cir. 2014). On several occasions, we have vacated conditions
banning a defendant from viewing sexually explicit materi-
als involving only adults because they were too vague or
overbroad. See, e.g., United States v. Adkins, 743 F.3d 176 (7th
Cir. 2014); Shannon, 743 F.3d at 501; United States v. Kappes,
782 F.3d 828, 853-54 (7th Cir. 2015).
Taylor does not contend that the modified condition is
vague. Indeed, the district court had modified the condition
to alleviate vagueness concerns. As initially imposed, it had
read: “The defendant shall not view or listen to any form of
pornography, sexually stimulating material, or sexually ori-
No. 14-3790 9
ented material or patronize locations where such material is
available.” We also note here that while Taylor did not ex-
plicitly challenge that condition in his previous appeal, the
government asserts to us that our review of Taylor’s appeal
of the current condition is for abuse of discretion. So even
were there an argument that our standard of review should
be different because Taylor did not explicitly appeal the pre-
vious condition, the government has not made any such ar-
gument. Cf., e.g., United States v. Webster, 775 F.3d 897, 902
(7th Cir. 2015) (finding government waived any objection
that an objection should be considered waived by arguing
that we should review for plain error).
Taylor maintains that the condition is overbroad. It is
true that both Taylor’s crime and adult pornography have to
do with sexual activity. But there is no evidence that viewing
or listening to adult pornography in any way led Taylor to
commit the crime here, or has led him to commit any other
crime, nor is there any evidence in the record that viewing or
listening to adult pornography would make the repeat of
Taylor’s crime or similar crimes any more likely. The district
court also did not find that there was any relationship be-
tween Taylor’s viewing of adult pornography and the likeli-
hood of recidivism. When the Third Circuit confronted a
condition that banned adult pornography, and found that
“nothing on this record suggests that sexually explicit mate-
rial involving only adults contributed in any way to [the de-
fendant’s] offense, nor is there any reason to believe that
viewing such material would cause [the defendant] to
reoffend,” that court vacated the condition. United States v.
Voelker, 489 F.3d 139, 151 (3d Cir. 2007).
10 No. 14-3790
Here, the district court and government justify the ban on
the basis that Taylor created adult pornography by mastur-
bating in front of the web camera. In instituting the ban, the
court said, “Taylor created pornography by sending videos
of himself masturbating to a person he believed was a 13
year old girl, and requested that she engage in the same ac-
tivity.” But the sexual images in this case, which were of Tay-
lor himself, were not facilitated by or motivated by his access
to adult pornography. And there is no suggestion that his
offense had anything to do with his viewing of adult por-
nography. Again, there is no finding or suggestion in the
record that Taylor would engage in similar conduct or
reoffend if he simply viewed legal adult pornography, which
is what the condition bars him from doing. See Shannon, 743
F.3d at 502 (vacating condition barring the viewing of adult
pornography in light of vagueness concerns and because the
“sentencing court did not point to anything in the record
suggesting that viewing sexually explicit material involving
only adults would cause Shannon to reoffend”); United States
v Perazza-Mercado, 553 F.3d 65, 78 (1st Cir. 2009) (“[T]he im-
position of the ban on the possession of adult pornography
as a condition of supervised release, without any explana-
tion and without any apparent basis in the record, consti-
tutes an error that is plain.”).
We are not saying a court could never impose a special
condition prohibiting the possession of even legal adult por-
nography; there may be times when a sentencing court is
justified in imposing such a condition. See Shannon, 743 F.3d
at 502 (collecting cases). Here, however, the record does not
justify the ban. As a result, we find the district court abused
its discretion when it imposed the condition, and, like the
No. 14-3790 11
Third Circuit did with the special condition in Voelker, we
vacate this special condition of Taylor’s probation.
2. Inspection of Internet-Capable Devices
The next condition Taylor challenges concerns the proba-
tion office’s ability to monitor his internet use. The condition
provides:
The defendant may not use the internet to access social
chat-rooms in which users conduct conversations with
other third-party chatroom users. This does not include
informational chats used by websites to provide custom-
er service or answers to frequently asked questions. Pri-
or to accessing an internet capable device, the defendant
shall provide notice to the probation department of the
type and location of such device. To verify compliance
with this condition, upon request, the defendant shall
make available for inspection by the probation depart-
ment, any such internet capable device.
Taylor proposed the first two sentences in his request for
modification, so any challenge to that part of the special
condition is waived. See United States v. Mantas, 274 F.3d
1127, 1130 (7th Cir. 2001). Taylor had also proposed that the
condition state, “If the probation officer has reasonable sus-
picion to believe that the defendant has accessed a social
chatroom, the probation officer may have access to the de-
fendant’s personal computer to verify compliance with this
condition.” The district court rejected this language, and
Taylor renews on appeal his argument that a probation of-
ficer should only be allowed to access Taylor’s personal
computer upon reasonable suspicion that Taylor had violat-
ed a probation condition or committed a crime.
We disagree. While Taylor argues that there is no evi-
dence that he has used a computer to access illegal material,
12 No. 14-3790
he used his computer to commit the offense in question.
Specifically, while on his computer, he accessed an online
chat room and then transferred obscene material to someone
he thought was under the age of sixteen. As the district court
stated, “Taylor’s conviction stems entirely from his conduct
on a computer.”
The nature of Taylor’s offense means that the district
court did not abuse its discretion when it imposed a condi-
tion that allows the probation department to check Taylor’s
internet-capable devices even without reasonable suspicion.
See Kappes, 782 F.3d at 863 (allowing court to impose condi-
tion allowing periodic, unannounced inspection of computer
and internet-capable devices where defendant had thou-
sands of images of child pornography on his computer).
That Taylor’s crime was solely the result of his activity on a
computer makes his case materially different from our deci-
sion in Goodwin, 717 F.3d 511, to which he points. There we
struck down an internet monitoring and computer search
condition where there was no evidence that a computer had
played any role in the defendant’s convictions and no indica-
tion that he had used a computer to commit any crime. Id. at
523. The opposite is true here.
We have cautioned, however, against the imposition of
overly broad search conditions as conditions of supervised
release or probation. See United States v. Farmer, 755 F.3d 849
(7th Cir. 2014); Goodwin, 717 F.3d at 523. In Farmer, we recog-
nized that 18 U.S.C. § 3583(d)(3) provides that a court may
order as a condition for a person required to register under
the Sex Offender Registration and Notification Act that the
person submit his person, property, computer, and other
items to search by a probation officer “with reasonable sus-
No. 14-3790 13
picion concerning a violation of supervised or unlawful
conduct by the person … .” Taylor’s condition is even broad-
er than that, as no reasonable suspicion is required. We reit-
erate the importance, when sentencing courts consider im-
posing a special condition like this one, that such “broad
search and seizure authority” be “connected to [the defend-
ant’s] offense, history, and personal characteristics.” Goodwin,
717 F.3d at 523. In light of the nature of Taylor’s offense, we
find the authority was sufficiently connected here, and we
uphold this special condition.
3. Direct Contact with Minors
Taylor also challenges a third special condition, this one
concerning contact with persons under the age of 18. It
reads:
The defendant shall have no knowing direct contact with
a person under the age of 18, no indirect contact with a
person under the age of 18 through another person or
through a device (including a telephone, computer, ra-
dio, or other means) and the defendant must reasonably
avoid and remove himself from situations in which he
would have any other form of contact with a minor. The
defendant shall not be in any area in which persons un-
der the age of 18 are likely to congregate, such as school
grounds, child care centers, sport centers for youth
sports, or playgrounds.
We disagree with the suggestion that no ban is necessary
because the conduct took place in 2006, and, according to
Taylor, there is no evidence of any present risk to minors.
The record reflects that in addition to the conduct for which
he was convicted, Taylor contemplated meeting what he
thought to be a thirteen-year-old girl in person. Fear of ar-
rest, transportation logistics, and the uncertainty of whether
14 No. 14-3790
the girl would have sexual intercourse with him meant that
Taylor did not set up a meeting in this case, but his state-
ments in the internet chatroom suggest that he would have
been open to meeting if transportation could be arranged.
Some restriction on contact with minors while Taylor was on
probation for this offense was justified.
That said, the special condition imposed here is quite
broad and, indeed, broader upon modification than at its ini-
tial imposition. As initially imposed on August 15, 2012, the
special condition of probation concerning contact with mi-
nors had included the sentence, “This provision does not en-
compass persons under the age of 18 with whom the de-
fendant must deal in order to obtain ordinary and usual
commercial services.”2 The modified condition at issue,
however, does not.
As currently written, the special condition does not con-
tain any exceptions to the bar on having any “knowing di-
rect contact with a person under the age of 18.” While the
government suggests that the final sentence (the bar on be-
ing in areas where minors are likely to congregate) limits the
first sentence, that is not how the plain language of the spe-
2The complete special condition as initially imposed read:
The defendant shall not frequent places where children
under the age of 18 congregate, nor associate or have
verbal, written, telephonic, or electronic communication
with any person under the age of 18, without the per-
mission of the probation officer. This provision does not
encompass persons under the age of 18 with whom the
defendant must deal in order to obtain ordinary and
usual commercial services.
No. 14-3790 15
cial condition reads. Rather, the first sentence, with its abso-
lute bar on any knowing contact with minors, stands alone.
After the district court issued the modification order in
this case, we expressed concerns about another similar broad
no-contact-with-minors condition. We said in United States v.
Thompson, 777 F.3d 368, 376 (7th Cir. 2015), that “’contact,’
being undefined, could be understood to mean being served
by a waitress, paying a cashier, sitting next to a girl (a
stranger) at a baseball game, replying to a girl asking direc-
tions, or being shown a friend’s baby girl—or his own baby,
for that matter.” Were he in any of these situations, Taylor
would seem to be having the “knowing direct contact with a
person under 18” that is barred by his conditions of proba-
tion. We later suggested that a condition that, unlike the ab-
solute bar here, included exceptions for contact with non-
related minors in the course of normal commercial business,
in the presence of an adult approved by probation, and in
other cases of unintentional or incidental contact, could be
upheld. Kappes, 782 F.3d at 859-60.
As written, the condition is too broad and is an abuse of
discretion. We are already remanding Taylor’s case in light
of another condition, and on remand the district court
should reinstitute the normal commercial business excep-
tion, the removal of which appears to be an oversight. Other
circuits have ruled that associational conditions of probation
and supervised release do not apply to casual, chance, or in-
advertent meetings. See United States v. MacMillen, 544 F.3d
71, 76 (2d Cir. 2008); United States v. Loy, 237 F.3d 251, 269 (3d
Cir. 2001); see also Arciniega v. Freeman, 404 U.S. 4, 4 (1971)
(per curiam). Depending on the circumstances, we might
rule that way if Taylor was said to violate his probation for
16 No. 14-3790
doing one of the things we discussed in Thompson. It is also
true, though, that “should [a defendant] deliberately seek
out such contacts, they would cease to be ‘casual’ or ‘una-
voidable’ and would fall within the condition’s scope.” Loy,
237 F.3d at 269. An explicit exception for instances of unin-
tentional and incidental contact would make things clearer.
Cf. Kappes, 782 F.3d at 859. On remand the district court can
also bear in mind our discussion in Kappes concerning bans
on non-incidental contact with minor males as well as fe-
males, where there was no evidence that either of the de-
fendants was bisexual, which raised concerns as to whether
they were overbroad. Id. at 859-60.
Taylor has not suggested to us or to the district court any
specific family members or children of friends with whom
he wishes to have contact. In light of the soon-coming end
to Taylor’s probation and the remand we are already order-
ing, if Taylor has specific minor family members with whom
he seeks contact, he may ask the court to modify this condi-
tion, and the court can consider his request. See Kappes, 782
F.3d at 859 (stating that any violation of right to familial as-
sociation is not yet ripe in light of twenty-year sentence and
stating defendant could petition court for modification if he
or family member had minor children); 18 U.S.C. §
3583(e)(2).
Finally, we note that Taylor did not raise in his opening
brief a vagueness or other specific challenge to the condi-
tion’s bar on being “in any area in which persons under the
age of 18 are likely to congregate, such as school grounds,
child care centers, sport centers for youth sports, or play-
grounds.” Cf. MacMillen, 544 F.3d at 76 (upholding similar
special condition); United States v. Webster, 775 F.3d 897, 904
No. 14-3790 17
(7th Cir. 2015) (stating arguments not made in opening brief
waived).
III. CONCLUSION
Taylor’s sentence is VACATED and his case is REMANDED
for further proceedings consistent with this opinion.
18 No. 14-3790
EASTERBROOK, Circuit Judge, concurring. I join my col-
leagues’ opinion but add a few words about jurisdiction.
The district court modified the terms of Taylor’s proba-
tion while his direct appeal was pending in this court. Apart
from any questions about jurisdiction, that was imprudent.
Taylor was challenging both his conviction and his sentence,
and one aspect of this court’s decision concerned a term of
probation. United States v. Taylor, 777 F.3d 434, 442–44 (7th
Cir. 2015). Only one court at a time should address a subject;
parallel litigation adds needless complications. Altering a
judgment that is on appeal creates the prospect of wasting
the district judge’s time, the appellate judges’ time, or both.
I agree with my colleagues that, under United States v.
Ramer, 787 F.3d 837 (7th Cir. 2015), the district court had ju-
risdiction to proceed. Ramer holds that 18 U.S.C. §3583(e)(2),
which states that a district court may modify a term of su-
pervised release “at any time”, implies that the district court
may act while an appeal is pending, notwithstanding the
norm that only one court at a time has jurisdiction. See, e.g.,
Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58
(1982) (a notice of appeal “divests the district court of its
control over those aspects of the case involved in the ap-
peal”); United States v. McHugh, 528 F.3d 538 (7th Cir. 2008).
The statute governing probation, 18 U.S.C. §3563(c), says
the same thing as §3583(e)(2), so Ramer logically covers pro-
bation as well as supervised release. But I do not find Ramer
persuasive. It does not consider the possibility that “at any
time” refers to how long after a judgment a court may act,
rather than which court has authority to act.
No. 14-3790 19
Before the Sentencing Reform Act of 1984, district courts
could modify sentences long after they had been imposed.
See, e.g., United States v. Addonizio, 442 U.S. 178 (1979), dis-
cussing the old version of Fed. R. Crim. P. 35. Until Rule 35’s
adoption, “[t]he beginning of the service of the sentence in a
criminal case end[ed] the power of the court even in the
same term to change it.” United States v. Murray, 275 U.S. 347,
358 (1928). The 1984 Act moves back toward a system of de-
terminate sentencing, amending Rule 35 to allow a district
court to modify a sentence only on remand from a court of
appeals, or in response to a motion by the prosecutor based
on assistance in other defendants’ cases. Change also is pos-
sible under retroactive amendments to the Guidelines, and
Rule 35 has been amended to allow correction of technical
gaffes within 14 days of a sentence’s imposition. The 1984
Act left in place, however, the two statutes I have mentioned,
which treat probation and supervised release as special situ-
ations, because they entail ongoing monitoring that may last
long after release from prison.
To say that the 14-day limit does not apply to probation
and supervised release is not at all to say that a district court
may act while the same judgment is being contested on ap-
peal. Nothing in the text of §3563(c) or §3583(e)(2) speaks to
jurisdiction, and the Supreme Court insists that jurisdictional
rules be set out in jurisdictional terms. Rules about time for
action do not affect jurisdiction. See Eberhart v. United States,
546 U.S. 12 (2005) (holding this about Fed. R. Crim. P. 33 in
particular); see also, e.g., United States v. Kwai Fun Wong, 135
S. Ct. 1625 (2015); Henderson v. Shinseki, 562 U.S. 428 (2011);
Dolan v. United States, 560 U.S. 605 (2010). (The rare excep-
tions to this norm rest on historical practice. See John R. Sand
& Gravel Co. v. United States, 552 U.S. 130 (2008); Bowles v.
20 No. 14-3790
Russell, 551 U.S. 205 (2007). A district court’s authority to
modify terms of release while an appeal is pending does not
have the support of established practice.)
The panel in Ramer did not discuss the difference be-
tween timing rules and jurisdictional rules, and that omis-
sion is understandable. The parties had not discussed juris-
diction in their briefs; the panel did so on its own, without
calling for submissions from the parties. The parties have not
briefed jurisdiction in this appeal either. And United States v.
D’Amario, 412 F.3d 253 (1st Cir. 2005), which Ramer followed,
preceded Eberhart and other cases in the last decade that dis-
tinguish timing rules from jurisdictional rules. (D’Amario al-
so did not cite pre-2005 decisions about this topic. The mod-
ern doctrine begins with Zipes v. Trans World Airlines, Inc.,
455 U.S. 385 (1982).)
Nor did Ramer discuss the effect of its holding on other
rules and statutes that allow a district court to modify a
judgment. Take Fed. R. Civ. P. 60(b), some parts of which al-
low a judgment to be modified years after its entry. Or take
Fed. R. Crim. P. 12(b)(2) and Fed. R. Civ. P. 12(h), both of
which say that a district court may dismiss a case “at any
time” after concluding that subject-matter jurisdiction is
missing. The civil and criminal rules contain many more
“any time” references. (The phrase “at any time” appears 14
times in the criminal rules and 19 times in the civil rules.)
I had supposed, until Ramer, that such rules do not affect
the allocation of jurisdiction between trial and appellate
courts. Indeed, one of the “at any time” references appears
in Fed. R. Crim. P. 36, which we held in McHugh does not
permit a district court to act while an appeal on the same
subject is pending. Ramer upsets this understanding, though
No. 14-3790 21
perhaps accidentally. It does not discuss any of these rules
and, though it cites McHugh, does not recognize that
McHugh concerns an “at any time” clause. So although I am
content to follow Ramer today, I do not view the issue as
closed. We appear to have an intra-circuit conflict that needs
a fresh look with the benefit of briefs.
22 No. 14-3790
HAMILTON, Circuit Judge, concurring in part and dissent-
ing in part. I agree with my colleagues: (a) that the district
court had jurisdiction to decide whether to modify Taylor’s
conditions of probation, at least under 18 U.S.C. § 3563(c)
and United States v. Ramer, 787 F.3d 837 (7th Cir. 2015); (b)
that the condition of probation for inspection of internet-
capable devices is appropriate; and (c) that the condition on
contact with minors needs correction. I respectfully dissent,
however, from Part II-B-1 of the majority opinion vacating
the condition restricting Taylor’s access to otherwise legal
adult pornography.
When first setting conditions of probation for an offend-
er, a district court exercises its sentencing discretion. When
the district court here first imposed conditions of probation
on Taylor, he did not even bother to appeal them. See United
States v. Taylor, 777 F.3d 434 (7th Cir. 2015) (dealing with oth-
er issues). Taylor later moved under § 3563(c) to modify sev-
eral conditions. He did not show any change in circumstanc-
es, but he raised new legal arguments based on intervening
decisions by our court, and in particular on the scope of the
prohibition on access to adult pornography. The district
judge took Taylor’s arguments seriously and modified the
conditions, including the adult pornography condition, in
light of our intervening decisions.
Taylor argues now, and my colleagues agree, that the
adult pornography prohibition must be removed entirely. As
all acknowledge, our review of the district court’s actions is
only for abuse of discretion, e.g., United States v. Serrapio, 754
F.3d 1312, 1318 (11th Cir. 2014); United States v. Wyss, 744
F.3d 1214, 1218 n.2 (10th Cir. 2014), the same standard we
apply more often to decisions on whether to modify condi-
No.14-3790 23
tions of supervised release. E.g., United States v. Neal, 662
F.3d 936, 938 (7th Cir. 2011); United States v. Evans, 727 F.3d
730, 732 (7th Cir. 2013).
I see no abuse of discretion here. First, I am not persuad-
ed that Taylor had a right to have the district court start over
from scratch on whether the condition should be imposed at
all. When it was imposed in 2012, there was no objection or
appeal. While the district court had the power to revisit the
question, I do not see a duty to do so, except to the extent the
terms of the condition were sharpened to comply with our
intervening case law.
As for whether the adult pornography condition should
have been imposed in the first place, there is empirical evi-
dence weighing both for and against imposing such a condi-
tion on an offender like Taylor. See United States v. Siegel, 753
F.3d 705, 709 (7th Cir. 2014). The district court recognized
this uncertainty and discussed Siegel. In the end, the court
decided to stick with its original, unappealed decision to
impose the condition, but to tailor it more narrowly in light
of our decision in United States v. Adkins, 743 F.3d 176 (7th
Cir. 2014).
Surely the district court’s discretion is especially broad
when addressing an offender’s motion to remove entirely an
existing condition of probation he had not previously chal-
lenged. Neither Adkins nor this offender’s motion required
the district judge to revisit on the offender’s demand the
question whether to impose any restriction at all on his ac-
cess to adult pornography. I would affirm the decision to
deny the removal of the modified condition as well within
the court’s discretion.