     Case: 17-60228      Document: 00514723865         Page: 1    Date Filed: 11/14/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                      No. 17-60228                      November 14, 2018
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


              Plaintiff - Appellee

v.

THOMAS MUHAMMAD DARWISH,

              Defendant - Appellant




                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 3:16-CR-51-1


Before HAYNES, HO, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Thomas Darwish was convicted of enticing a minor to engage in sexual
activity under 18 U.S.C. § 2422(b). The district court sentenced Darwish and
imposed two special conditions that are the subject of this appeal. First,
Darwish was to “have no contact with the victim . . . or any of her family
members during his period of incarceration.”               Second, the district court
imposed a condition of supervised release prohibiting Darwish from


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                    No. 17-60228
“possess[ing] or us[ing] a computer or other Internet connection device to
access the Internet” except for pre-approved employment reasons. We affirm
the imposition of the second condition. As more fully explained below, we
vacate the first condition and remand for reconsideration.
                               I.     Background
      Thomas Muhammad Darwish pleaded guilty pursuant to a plea
agreement to using a facility of interstate commerce to entice a minor to engage
in sexual activity. According to the factual basis, which Darwish agreed was
true, Darwish met the victim on a social media website when he was twenty-
four years old and the victim was fourteen years old. They engaged in an online
sexual relationship; eventually met; and, “on at least one occasion,” obtained a
hotel room where they had sexual intercourse when the victim was fifteen
years old.
      As part of the plea agreement, Darwish agreed that the district court
“should order, as part of the judgment and conditions of supervised release,
that he shall have no contact with, and not attempt to contact, the victim or
the victim’s family during his incarceration or the subsequent term of
supervised release.”    Darwish also agreed, pursuant to Federal Rule of
Criminal Procedure 11(c)(1)(C), to a sentence of 120 months of imprisonment,
which was the mandatory minimum term of imprisonment.
      At the change-of-plea hearing, the Government clarified that the no-
contact condition was intended to prevent Darwish from initiating contact.
The victim and her parents could initiate contact if they desired, though
counsel for the Government noted that he thought it would be “a foolish thing
for the victim or her family to have contact with Mr. Darwish.”
      The victim and her parents made clear that they wanted Darwish and
the victim to be able to communicate. The PSR notes that the victim’s mother
believed prohibiting contact would be “detrimental” to her daughter and should
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                                 No. 17-60228
not be imposed. The victim and her parents also submitted letters to the
district court requesting that the district court allow contact between the
victim and Darwish.
      At sentencing, Darwish’s counsel referenced the letters and requested
that the district court not impose the no-contact condition. The Government
noted that the provision was not intended to be binding on the family and that
the victim and her family could contact Darwish “if they wished.”
      The district court ultimately disregarded the parties’ understanding of
the no-contact condition, as well as the victim and her parents’ wishes,
concluding that the plea agreement gave the district court discretion in this
regard. It prohibited Darwish from having contact with the victim (without
regard to who initiated it) at all while Darwish was incarcerated. Darwish
could, however, have contact with the victim after he was released from prison.
      Darwish also objected to a condition of supervised release restricting him
from using computers except in limited circumstances. His concern was not
with the restriction itself, but that because BOP “takes it as a blanket
provision,” he would not be allowed to use BOP’s email system.
      The judge responded, “Well, let me make sure I’m clear, then, because
special conditions would go into effect at the point in time [Darwish] was
released from prison.”    Defense counsel explained that BOP viewed the
conditions as also applying to inmates while they are incarcerated and that if
the conditions of an inmate’s supervised release include a computer restriction,
BOP would apply the restriction while the inmate is in custody. Defense
counsel also explained that, because the district court would likely impose a
computer restriction as a condition of supervised release, he wanted to have
the prison email system issue addressed at sentencing.
      The probation officer agreed that BOP would apply the same restrictions.
The Government noted that although the issue was left to the district court’s
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                                       No. 17-60228
discretion, the district court could limit the scope of Darwish’s access. The
district court asked the parties if they knew the criteria used by BOP in
determining whether to release or refuse email communications, but neither
party knew BOP’s criteria.
       The district court overruled Darwish’s objection. It imposed a special
condition of supervised release that Darwish “not possess or use a computer or
other Internet connection device to access the Internet except the defendant
may, with prior approval of a probation officer, use a computer and Internet in
connection with authorized employment.” It did not include any exception or
recommendation that Darwish be able to use the prison email system.
       Darwish filed a timely notice of appeal challenging the no-contact
condition and the computer-use restriction.
                                     II.   Discussion
           A. The No-Contact Condition
       Darwish argues the no-contact condition exceeded the district court’s
authority. 1 Darwish did not make that argument below or even in his initial
brief on appeal. Instead, we asked the parties to file supplemental briefs on
the district court’s authority to impose the no-contact condition as a part of his
confinement. 2



       1  The district court construed the plea agreement as delegating discretion to the
district court to impose the condition as it saw fit. Neither Darwish nor the Government
objected at the time of the sentence to assert that the provision was mandatory under Federal
Rule of Criminal Procedure 11(c)(1)(C). Nor have they argued so on appeal. Consequently,
we consider any argument that Rule 11(c)(1)(C) mandated a specific result with respect to
the no-contact condition to be waived by both parties. See United States v. Whitfield, 590
F.3d 325, 346 (5th Cir. 2009) (“As a general rule, a party waives any argument that it fails to
brief on appeal.”).
       2 We have not previously addressed the standard of review that applies to challenges
to a district court’s authority to impose conditions of confinement as part of a sentence. We
agree with the parties that it is subject to de novo review, even when the defendant fails to
raise the issue. Cf. United States v. Nagin, 810 F.3d 348, 352 (5th Cir. 2016); United States
v. Nolen, 472 F.3d 362, 382 (5th Cir. 2006).
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                                 No. 17-60228
      We conclude, and the parties agree, that the district court did not have
any statutory authority to impose the no-contact condition. District courts may
sentence a defendant to a “term of imprisonment.” See 18 U.S.C. § 3551(b)(3).
After a district court sentences a defendant to a term of imprisonment, BOP is
charged with implementing that portion of the sentence. See 18 U.S.C. § 3586
(directing implementation to be done in accordance with subchapter C of
chapter 229); 18 U.S.C. § 3621 (directing that convicted defendants be
“committed to the custody of the Bureau of Prisons” and restricting the
Bureau’s authority in specific situations). Only one provision in the relevant
chapter authorizes a district court to prohibit a defendant from “associat[ing]
or communicat[ing] with a specified person,” and that provision is inapplicable
here. See 18 U.S.C. § 3582(d) (authorizing district courts to prohibit those
convicted of RICO or drug conspiracies from contacting certain individuals).
Thus, as the parties recognize, a district court does not have statutory
authority to prohibit a defendant from having contact with victims as part of
his sentence of imprisonment. See United States v. Sotelo, 94 F.3d 1037, 1041
(7th Cir. 1996) (holding so).
      Instead, the parties disagree about whether the district court had
inherent authority to impose the no-contact condition. The Supreme Court has
recognized that courts retain certain inherent powers that “must be exercised
with restraint and discretion.” Chambers v. NASCO, Inc., 501 U.S. 32, 44
(1991). Neither we nor the Supreme Court has addressed whether district
courts have inherent authority to impose no-contact conditions as part of a
sentence of imprisonment.       The Seventh Circuit has recognized such an
inherent authority in very limited circumstances. See United States v. Morris,
259 F.3d 894 (7th Cir. 2001). The Ninth Circuit affirmed an order that was
similar to a no-contact condition in a sentence, directing the Attorney General
to stop a convicted defendant from contacting certain witnesses. See Wheeler
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v. United States, 640 F.2d 1116 (9th Cir. 1981). In both instances, those courts
imposed the no-contact conditions in response to credible concerns of
harassment that would interfere with the administration of justice.              See
Morris, 259 F.3d at 900 (concluding that, given Morris was seeking a new trial,
his harassing communications with the victim could interfere with her
willingness to be a witness against him); Wheeler, 640 F.2d at 1123 (concluding
that the defendant threatened to contact the witness’s family and employer to
provide damaging information about the witness, thus interfering with the
integrity of the system).
      Here, no such arguments were proffered or considered by the district
court, so we take no position today on the decisions of the Seventh and Ninth
Circuits. Moreover, unlike the Seventh and Ninth Circuit cases, the district
court did not impose the no-contact condition in response to concerns about
interference with the administration of justice such as witness tampering. The
Government, the victim, and her parents requested that the court permit the
victim to contact Darwish.       The district court made clear the no-contact
condition was to allow the victim to mature prior to making the decision to
engage in contact with Darwish. Such a concern, however laudable, does not
implicate protection of the administration of justice in a particular case. We
note, of course, that the district court has unquestioned authority to make a
recommendation to BOP regarding Darwish’s conditions of confinement. See
United States v. Voda, 994 F.2d 149, 151–53 (5th Cir. 1993). All that said, the
district court did not purport to invoke inherent authority and, thus, did not
consider whether such authority exists and whether, if it does, these
circumstances support exercise of such authority. Consequently, we conclude
it is appropriate for the district court to consider this issue in the first instance
so that we will have a full record to review and consider this important issue
should either party appeal after remand.
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                                       No. 17-60228
           B. The Computer-Use Restriction
       Darwish also argues that the district court abused its discretion by
imposing the computer-use restriction as a special condition of his supervised
release without including an exception that permits him to use the prison
email system. 3 Darwish argues that the computer-use restriction involves a
greater deprivation of liberty than reasonably necessary to achieve the
statutory goals in 18 U.S.C. § 3553(a).
       Although “[a] district court has wide discretion in imposing terms and
conditions of supervised release,” the district court must comply with certain
statutory requirements. United States v. Paul, 274 F.3d 155, 164 (5th Cir.
2001). Pursuant to 18 U.S.C. § 3583(d), special conditions of supervised release
may be imposed only if the conditions are reasonably related to the relevant
factors in 18 U.S.C. § 3553, and do not “involve a greater deprivation of liberty
than is reasonably necessary to achieve the . . . statutory goals” also stated in
§ 3553. Paul, 274 F.3d at 164–65. The relevant § 3553(a) factors are: (1) “the
nature and circumstances of the offense and the history and characteristics of
the defendant,” 18 U.S.C. § 3553(a)(1); (2) the need “to afford adequate
deterrence to criminal conduct,” 18 U.S.C. § 3553(a)(2)(B); (3) the need “to
protect the public from further crimes of the defendant,” 18 U.S.C.
§ 3553(a)(2)(C); and (4) the need “to provide the defendant with needed . . .
training, medical care, or other correctional treatment in the most effective
manner,” 18 U.S.C. § 3553(a)(2)(D). In addition, special conditions must be
“consistent with any pertinent policy statements issued by the Sentencing
Commission.” 18 U.S.C. § 3583(d)(3).




       3This court reviews the district court’s imposition of special conditions of supervised
release under “a deferential abuse-of-discretion standard.” See United States v. Rodriguez,
558 F.3d 408, 412 (5th Cir. 2009).
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                                   No. 17-60228
      Darwish concedes that the computer-use restriction is reasonably
related to the nature and circumstances of the offense but contends that it
involves a greater deprivation of liberty than reasonably necessary to achieve
the other enumerated factors. The sole basis for his claim is that the condition
allegedly impacts his time in prison. However, as Darwish acknowledges, a
BOP policy manual “clarifies that the Warden has full discretion in
determining who may use or not use [the prison email system].” BOP policy
provides that email access is a privilege, not a right.
      Nothing in Darwish’s brief or in the BOP policy manual reflects that
BOP’s discretion to grant or restrict an inmate’s access to the prison email
system hinges on whether there is a special condition of supervised release
prohibiting or restricting the inmate from using a computer while the inmate
is on supervised release.       Additionally, Darwish has not identified any
precedent suggesting that an otherwise valid condition of supervised release
becomes invalid because of how BOP might respond to it. Thus, the district
court’s decision not to include, as a condition of supervised release, language
that has no bearing on supervised release was not based “on an error of law or
a clearly erroneous assessment of the evidence.” United States v. Castillo, 430
F.3d 230, 238 (5th Cir. 2005) (internal quotation marks omitted). The district
court did not abuse its discretion by imposing the special condition as worded.
See id.
                                III.   Conclusion
      For the foregoing reasons, we AFFIRM the computer-use restriction and
VACATE the no-contact restriction and REMAND for further proceedings
consistent with this opinion.




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