Banning All Computer Use Is An Impermissibly Overbroad Condition of Supervised Release
United States v. Blair, ___F.3d___, 2019 WL 3793368 (No. 18-1220, 10th Cir. Aug. 13, 2019) (Special Condition of Supervised Release – computer/internet access).
Short version: Special condition of supervised release that essentially allowed probation to ban all use of computers and the internet as impermissibly broad, and the district court abused its discretion by imposing it. Applies 18 USC 3583(d) and 3553(a) in our favor for once.
Long version: Mr. Blair had a LOT of child porn on his computer. Pled to one count possession; anticipated a guideline level 28, crim. history 1, for a range of 78-97 months. Alas, the government learned that Mr. Blair allegedly molested his younger sister and his son, so bumped him up to offense level 33 for a guideline range of 135-168 months. Sentencing court was unmoved by mitigating evidence of poor health, military service and difficult childhood. Luckily, statute set maximum at 120 months, which is what the court imposed. Mr. Blair was unhappy with this sentence but the 10th found it to be substantively reasonable.
But, it found a special condition that essentially allowed probation to ban all use of computers and the internet as impermissibly broad, and the district court abused its discretion by imposing it. The district court phrased the condition as: “The defendant’s use of computers and Internet access devices must be limited to those the defendant requests to use, and which the probation officer authorizes.” Because this put all discretion with probation, the 10th felt too broad. The probation office can only impose restrictions “that are reasonably calculated to prevent the defendant from using a computer or the Internet to access, store, produce, or send child pornography in any form; to provide necessary restrictions to facilitate a defendant’s correctional treatment so that he may be rehabilitated; and to protect the public from any further crimes of the defendant.” 2019 WL 3793368, at *8.
This has a lot of good language about how ubiquitous the internet is – at least a few years ago, this language was hard to find. But the 10th actually recognized that now-a-days you need the internet to know the weather. Of note, split decision on this issue with Ebel and Bacharach in majority and Baldock dissenting.
Short version: Special condition of supervised release that essentially allowed probation to ban all use of computers and the internet as impermissibly broad, and the district court abused its discretion by imposing it. Applies 18 USC 3583(d) and 3553(a) in our favor for once.
Long version: Mr. Blair had a LOT of child porn on his computer. Pled to one count possession; anticipated a guideline level 28, crim. history 1, for a range of 78-97 months. Alas, the government learned that Mr. Blair allegedly molested his younger sister and his son, so bumped him up to offense level 33 for a guideline range of 135-168 months. Sentencing court was unmoved by mitigating evidence of poor health, military service and difficult childhood. Luckily, statute set maximum at 120 months, which is what the court imposed. Mr. Blair was unhappy with this sentence but the 10th found it to be substantively reasonable.
But, it found a special condition that essentially allowed probation to ban all use of computers and the internet as impermissibly broad, and the district court abused its discretion by imposing it. The district court phrased the condition as: “The defendant’s use of computers and Internet access devices must be limited to those the defendant requests to use, and which the probation officer authorizes.” Because this put all discretion with probation, the 10th felt too broad. The probation office can only impose restrictions “that are reasonably calculated to prevent the defendant from using a computer or the Internet to access, store, produce, or send child pornography in any form; to provide necessary restrictions to facilitate a defendant’s correctional treatment so that he may be rehabilitated; and to protect the public from any further crimes of the defendant.” 2019 WL 3793368, at *8.
This has a lot of good language about how ubiquitous the internet is – at least a few years ago, this language was hard to find. But the 10th actually recognized that now-a-days you need the internet to know the weather. Of note, split decision on this issue with Ebel and Bacharach in majority and Baldock dissenting.
posted by Anonymous at 9:13 AM
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