July 10, 2018
Appeal from the United States District Court for the Middle
District of Pennsylvania (D.C. No. 3:07-cr-00169-001)
District Judge: Honorable Matthew W. Brann
R. Freese, Esq. Federal Public Defender for the Middle
District of Pennsylvania Frederick W. Ulrich, Esq. [ARGUED]
Assistant Federal Public Defender Office of Federal Public
Defender Counsel for Appellant
J. Freed, Esq. United States Attorney for the Middle District
of Pennsylvania Carlo D. Marchioli, Esq. [ARGUED] Office of
United States Attorney Francis P. Sempa, Esq. Office of
United States Attorney Counsel for Appellee
Before: GREENAWAY, JR., RESTREPO, and BIBAS, Circuit Judges
protect the public, a sentencing judge may restrict a
convicted defendant's use of computers and the internet.
But to respect the defendant's constitutional liberties,
the judge must tailor those restrictions to the danger posed
by the defendant. A complete ban on computer and internet use
"will rarely be sufficiently tailored." United
States v. Albertson, 645 F.3d 191, 197 (3d Cir. 2011).
This case illustrates why.
Holena was convicted of using the internet to try to entice a
child into having sex. As a condition of his supervised
release from prison, he may not possess or use computers or
other electronic communication devices. Nor may he use the
internet without his probation officer's approval.
Restricting his internet access is necessary to protect the
public. But these restrictions are not tailored to the danger
he poses. So we will vacate and remand for resentencing.
repeatedly visited an online chatroom and tried to entice a
fourteen-year-old boy to have sex. He made plans to meet the
boy. He assured the boy that his age was not a problem, as
long as the boy did not tell the police. But the
"boy" was an FBI agent. So when Holena arrived at
the arranged meeting spot in a park, he was arrested and
charged with attempting to entice a minor to engage in sexual
pleaded guilty. He was sentenced to ten years'
imprisonment and a lifetime of supervised release. As a
special condition of that supervised release, he was
forbidden to use the internet without his probation
officer's approval. He had to submit to regular searches
of his computer and home. And he had to let the probation
office install monitoring and filtering software on his
serving his prison sentence, Holena violated the terms of his
supervised release-twice. The first time, he went online to
update social-media profiles and answer emails. The second
time, he logged into Facebook without approval, then lied
about it to his probation officer. After each violation, the
court sentenced him to nine more months' imprisonment and
reimposed the special conditions.
Holena's latest revocation hearing, the judge imposed
another condition, forbidding him to possess or use any
computers, electronic communications devices, or electronic
storage devices. Holena objected to this lifetime ban.
Jurisdiction and Standard of Review
District Court had jurisdiction under 18 U.S.C. §§
3231 and 3583(e). We have jurisdiction under 28 U.S.C. §
1291 and 18 U.S.C. § 3742(a).
review revocation of supervised release for abuse of
discretion. United States v. Bagdy, 764 F.3d 287,
290 (3d Cir. 2014). We insist on "some evidence"
that the special conditions imposed are "tangibly
related" to the goals of supervised release. United
States v. Voelker, 489 F.3d 139, 144 (3d Cir. 2007);
see 18 U.S.C. § 3583(d). To justify special
conditions, district courts must find supporting facts.
United States v. Thielemann, 575 F.3d 265, 272 (3d
Cir. 2009). We may affirm if we can "ascertain any
viable basis" in the record for the restriction.
Id. (quoting Voelker, 489 F.3d at 144).
Here, we cannot.
The Special Conditions Are Not Sufficiently Tailored
argues that the bans on computer and internet use are both
contradictory and more restrictive than necessary. We agree.
And we note that the ...