                                         COURT OF APPEALS OF VIRGINIA


            Present: Chief Judge Decker, Judges Humphreys and Russell
            Argued at Leesburg, Virginia
PUBLISHED




            CHANCELIER FAZILI
                                                                               OPINION BY
            v.     Record No. 1379-18-4                                 JUDGE ROBERT J. HUMPHREYS
                                                                             DECEMBER 3, 2019
            COMMONWEALTH OF VIRGINIA


                                FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                                            David Bernhard, Judge

                           Dawn M. Butorac, Public Defender, for appellant.

                           Victoria Johnson, Assistant Attorney General (Mark R. Herring,
                           Attorney General, on brief), for appellee.


                   On March 19, 2018, appellant Chancelier Fazili (“Fazili”) was indicted in the Circuit

            Court of Fairfax County (“circuit court”) on one count of aggravated sexual battery of A.G.K., a

            child under the age of thirteen, in violation of Code § 18.2-67.3. The indictment alleged that the

            incident occurred on or about March 28, 2017.

                   On April 4, 2018 Fazili entered a guilty plea pursuant to a written plea agreement. By

            order entered on August 9, 2018, the circuit court sentenced Fazili to twenty years’

            imprisonment, with fifteen years suspended for a period of ten years. As a condition of

            probation, the court ordered that Fazili “have no use of any device that can access internet unless

            approved by his Probation Officer.” Fazili assigns the following errors on appeal:

                           I. The trial court abused its discretion by not considering
                              relevant factors and giving them significant weight and
                              instead gave significant weight to irrelevant and improper
                              factors when fashioning the sentence for Mr. Fazili.
               II. The trial court erred by ordering that Mr. Fazili “not use
                   any device that can access the internet unless approved by
                   his Probation Officer.”

                   A. This probation condition was an error because it
                      violates Mr. Fazili’s First Amendment rights under the
                      United States Constitution.

                   B. This probation condition was an error because it
                      violates Virginia Code § 19.2-303 by improperly
                      delegating the parameters of this special condition to
                      the probation officer.

                   C. This probation condition was an error because it is an unreasonable
                      condition of probation.

                                       I. BACKGROUND

       Fazili initially stood charged with object sexual penetration of a child under the age of

thirteen, in violation of Code § 18.2-67.2. However, pursuant to a written plea agreement, Fazili

pleaded guilty to one count of aggravated sexual battery of a child under the age of thirteen, in

violation of Code § 18.2-67.3. The Commonwealth proffered that the evidence would show

Fazili’s sister asked Fazili to babysit her two children. On March 28, 2017, she came home to

find Fazili in bed with her five-year-old daughter, A.G.K., and two-year-old son. A.G.K. was

crying and told her mother “Uncle touched me.” She also told a forensic interviewer that Fazili

“put ‘an onion’ in her,” “that this had happened more than once in her bedroom,” and that “her

pants got wet from ‘the onion soup.’” Fazili later admitted that “his fingers went between the

lips of her vagina but were not fully into the hole.” He also told a detective that he was

masturbating while touching A.G.K. “[S]wabs taken from A.G.K.’s thighs and external

genitalia” contained sperm that matched Fazili’s DNA.

       Prior to the sentencing hearing, the probation office inadvertently sent the circuit court a

sentencing guideline with “an upper end of 5.5 years.” However, the probation office

resubmitted the appropriate sentencing guidelines, which recommended one day to three months’

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imprisonment. At the sentencing hearing, the circuit court heard mitigating evidence relating to

his troubled childhood in the war-torn Democratic Republic of Congo. The circuit court also

received the presentence report, which contained a statement Fazili made to his probation officer

that characterized the events as “a misunderstood from the victim [sic].”

       The Commonwealth argued for an upward deviation from the sentencing guidelines, but

also stated that “the Commonwealth has amended the charge to reflect obviously what we can

prove and take that into consideration with the practical and strategic aspects of having to try this

case with such a young victim.” After considering the mitigating and aggravating evidence, the

circuit court concluded that the sentencing guidelines were “wholly inappropriate because the

conduct is not really what is envisioned by those guidelines.”

       Accordingly, the circuit court sentenced Fazili to twenty years’ imprisonment, with

fifteen years suspended for a period of ten years. Pursuant to Code § 19.2-298.01(B), the circuit

court explained its reasoning for the upward departure in the sentencing order:

               Evidence consistent with child being raped and subject to animate
               object penetration of her vagina by defendant’s fingers. She was
               molested while her infant brother was also in bed next to
               defendant.1 Sperm was found on the outside of the child’s body.
               The battery was thus of a more extensive nature in the scale of
               such crimes.

       As a condition of Fazili’s probation, the circuit court ordered that he “have no use of any

device that can access internet unless approved by his Probation Officer.” At the sentencing

hearing, Fazili’s counsel objected to this condition as a violation of Fazili’s First Amendment

rights. The circuit court explained that “if he is undergoing some legitimate use of the internet

the probation office may permit that. But he is not to have unfettered use of the internet.” Fazili




       1
        We note that the Commonwealth’s proffer maintained that Fazili’s nephew laid in
between the wall and A.G.K., not directly next to Fazili.
                                              -3-
further objected to the circuit court delegating the discretion of that condition to the probation

officer. On August 9, 2018, the circuit court entered a formal sentence. This appeal follows.

                                          II. ANALYSIS

                                     A. Sentencing Guidelines

       “We review the [circuit] court’s sentence for abuse of discretion.” Scott v.

Commonwealth, 58 Va. App. 35, 46 (2011) (citing Valentine v. Commonwealth, 18 Va. App.

334, 339 (1994)). “Given this deferential standard of review, we will not interfere with the

sentence so long as it ‘was within the range set by the legislature’ for the particular crime of

which the defendant was convicted.” Id. (quoting Jett v. Commonwealth, 34 Va. App. 252, 256

(2001)); see also Valentine, 18 Va. App. at 339 (holding that if the sentence does not exceed the

maximum set by the legislature, “the sentence will not be overturned as being an abuse of

discretion” (quoting Abdo v. Commonwealth, 218 Va. 473, 479 (1977))).

       Our sentencing guidelines “are discretionary, rather than mandatory.” West v. Dir.,

Dep’t of Corr., 273 Va. 56, 65 (2007). Accordingly, a circuit court’s failure to follow the

guidelines is “not . . . reviewable on appeal.” Code § 19.2-298.01(F). The General Assembly

only requires the circuit court “to consider the sentencing guidelines before sentencing [the

appellant] and to file with the record of the case a written explanation of any departure from the

indicated range of punishment.” West, 273 Va. at 65 (citing Code § 19.2-298.01(B)).

       Aggravated sexual battery is a felony punishable by imprisonment for one to twenty

years. Code § 18.2-67.3(B). Here, Fazili was sentenced to twenty years in prison with fifteen

years suspended for a period of ten years. Clearly, Fazili’s sentence falls within the statutory

range set by the legislature and although the circuit court ultimately rejected both Fazili’s

evidence and arguments offered in mitigation and departed from the recommended sentencing




                                                -4-
guideline range, the record indicates that the circuit court gave consideration if not weight to

both. Therefore, no abuse of discretion occurred with respect to the sentence imposed.

              B. The Conditions of Probation and Fazili’s First Amendment Rights

        As a prelude to considering Fazili’s assignment of error regarding the infringement of his

First Amendment rights by the circuit court’s condition of his probation that he abstain from

accessing the internet unless he secures the approval of his probation officer, we first consider

the nature of probation.

        It is axiomatic that the alternative to probation is incarceration for the entirety of a

sentence in a facility where access to the internet is at least as restricted as the condition of

probation imposed in this case. See Griffin v. Wisconsin, 483 U.S. 868, 874 (1987) (“Probation

is simply one point . . . on a continuum of possible punishments ranging from solitary

confinement in a maximum-security facility to a few hours of mandatory community service.”);

Hartless v. Commonwealth, 29 Va. App. 172, 175 (1999) (recognizing that the alternative to

probation is the imposition of the court’s sentence). Nor does a convicted defendant have a right

to be placed on probation under his own terms and conditions. See Code § 19.2-303; Burns v.

United States, 287 U.S. 216, 221 (1932) (explaining that it is within the court’s broad discretion

whether to grant probation). In considering whether probation is appropriate in a given case, the

task of the sentencing judge is to balance the appropriate punishment for the crime committed

with the available rehabilitative alternatives to incarceration and the protection of the lives and

property of the community if the defendant is not isolated from it. See Griffin, 483 U.S. at 875;

see also Wilborn v. Saunders, 170 Va. 153, 160 (1938). Ideally, the result is an opportunity for a

defendant to modify his or her future behavior and address any issues that contributed to their

criminal actions while simultaneously providing a mechanism for closely monitoring their

compliance and restricting any opportunity to re-offend. See Griffin, 483 U.S. at 875

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(“[Probation] restrictions are meant to assure that the probation serves as a period of genuine

rehabilitation and that the community is not harmed by the probationer’s being at large.”); see

also Wilborn, 170 Va. at 160 (“The Commonwealth is interested not only in the preservation of

peace and good order, but in reformation of the criminal, so that he may be restored to a useful

place in society and be self-sustaining thereafter.”). If a defendant demonstrates that he or she is

unable or unwilling to adhere to terms and conditions a court finds appropriate to strike the

balance described above, the alternative is always the execution of the sentence imposed. Code

§ 19.2-306(A).

       Nevertheless, terms and conditions of probation are not entirely devoid of constitutional

restrictions. See Griffin, 483 U.S. at 875 (noting that the government may impinge on the

constitutional rights of probationers, but that its ability to do so “is not unlimited”). The First

Amendment to the United States Constitution, made applicable to the states through the

Fourteenth Amendment, generally prohibits state action from infringing upon an individual’s

freedom of speech. Staub v. City of Baxley, 355 U.S. 313, 321 (1958).2 While state action

typically takes the form of a statute or regulation, a circuit court order may also constitute state

action. Hawkins v. Grese, 68 Va. App. 462, 470 (2018). “To safeguard free speech, the

Supreme Court requires that a regulatory measure be content neutral. The doctrine of content

neutrality provides that governmental regulations may not ‘restrict expression because of its

message, its ideas, its subject matter, or its content.’” Adams Outdoor Advert. v. City of

Newport News, 236 Va. 370, 381 (1988) (quoting Police Dep’t of City of Chicago v. Mosley,

408 U.S. 92, 95 (1972)). Here, the probation condition is a content neutral regulation of Fazili’s



       2
         Although Fazili has assigned error to the probation condition as a violation of his First
Amendment rights under the federal constitution, “Article I, § 12 of the Constitution of Virginia
is coextensive with the free speech provisions of the federal First Amendment.” Elliott v.
Commonwealth, 267 Va. 464, 473-74 (2004).
                                               -6-
free speech rights because by restricting his access to the internet it broadly restricts his speech

without reference to its message.

       When a state’s regulation of speech is content neutral, the regulation is subject to review

under intermediate scrutiny. Packingham v. North Carolina, 137 S. Ct. 1730, 1736 (2017). “In

order to survive intermediate scrutiny, [the state action] must be ‘narrowly tailored to serve a

significant governmental interest.’” Id. (quoting McCullen v. Coakley, 573 U.S. 464, 486

(2014)). “In other words, the law must not ‘burden substantially more speech than is necessary

to further the government’s legitimate interests.’” Id. (quoting McCullen, 573 U.S. at 486).

       While our sister appellate courts are split on the issue, we agree with a number of

jurisdictions that have held that the Supreme Court’s recent decision in Packingham does not

apply to prohibit a circuit court from imposing, as a condition of probation, a reasonable ban on

internet access provided such ban is narrowly tailored to effectuate either a rehabilitative or

public-safety purpose.3 In Packingham, the Supreme Court struck down a North Carolina law

that made it a felony for registered sex offenders to access certain social networking websites.

Id. at 1733, 1738. However, unlike the post-custodial restriction broadly imposed in

Packingham, “probation is a form of criminal sanction, like incarceration, imposed by a trial

court after a verdict, finding, or plea of guilty.” Murry v. Commonwealth, 288 Va. 117, 122

(2014) (citing Griffin, 483 U.S. at 874). “[P]robation represents ‘an act of grace’” extended to a



       3
          E.g. United States v. Peterson, 776 Fed. App’x 533, 534 n.2 (9th Cir. 2019); United
States v. Perrin, 926 F.3d 1044, 1049 (8th Cir. 2019); United States v. Carson, 924 F.3d 467, 473
(8th Cir.), cert. denied, ___ S. Ct. ___ (2019); United States v. Washington, 763 Fed. App’x 870,
872 (11th Cir. 2019); United States v. Antczak, 753 Fed. App’x 705, 715 (11th Cir. 2018);
United States v. Halverson, 897 F.3d 645, 658 (5th Cir. 2018); United States v. Rock, 863 F.3d
827, 832 (D.C. Cir. 2017); United States v. Whitten, No. 7:14CR00049, at *5 n.2 (W.D. Va.
Apr. 24, 2018); United States v. Farrell, No. 4:06-CR-103, at *2 (E.D. Tex. Feb. 23, 2018);
United States v. Pedelahore, No. 1:15cr24-LG-RHW, at *2 (S.D. Miss. Oct. 19, 2017); Alford v.
State, 279 So.3d 752, 756 (Fla. Dist. Ct. App. 2019); People v. Morger, 103 N.E.3d 602, 616
(Ill. App. Ct. 2018); Archer v. State, No. 13-18-00059-CR, at *3 (Tex. App. May 23, 2019).
                                                 -7-
defendant who has been convicted and sentenced to confinement. Price v. Commonwealth, 51

Va. App. 443, 448 (2008) (quoting Pierce v. Commonwealth, 48 Va. App. 660, 667 (2006)).

“Inherent in the very nature of probation is that probationers ‘do not enjoy the absolute liberty to

which every citizen is entitled,’” United States v. Knights, 534 U.S. 112, 119 (2001) (quoting

Griffin, 483 U.S. at 874), “but only . . . conditional liberty properly dependent on observance of

[probation conditions],” Morrissey v. Brewer, 408 U.S. 471, 480 (1972).

       As the Supreme Court recognized in Packingham, “[s]pecific criminal acts are not

protected speech even if speech is the means for their commission.” Packingham, 137 S. Ct. at

1737 (citing Brandenburg v. Ohio, 395 U.S. 444, 447-49 (1969) (per curiam)). So long as a

probation condition is narrowly tailored to effectuate either rehabilitative or public-safety

purposes, “it can be assumed that the First Amendment permits a State to enact specific,

narrowly tailored laws [or in this case, a condition of probation] that prohibit a sex offender from

engaging in conduct that often presages a sexual crime, like contacting a minor or using a

website to gather information about a minor.” Id.; see also Ashcroft v. Free Speech Coalition,

535 U.S. 234, 244 (2002) (“The sexual abuse of a child is a most serious crime and an act

repugnant to the moral instincts of a decent people.”).

       Here, the circuit court imposed, as a condition of probation, that Fazili “have no use of

any device that can access the internet unless approved by his Probation Officer.” After Fazili

objected to this condition, the circuit court clarified that “if he is undergoing some legitimate use

of the internet the probation office may permit that” and that he “can work out with probation

what type of access he can have.” However, there is no evidence on the record before us that

computers or the internet played any role in Fazili’s offense and the circuit court articulated no

justification for how imposing this restriction on Fazili’s fundamental right to free speech would

serve any rehabilitative or public safety purpose. Without such justification, this restriction

                                                -8-
burdens substantially more speech than is necessary to further the government’s legitimate

interests and is therefore not narrowly tailored. We do not foreclose the possibility that such a

broad restriction on access to the internet could be justified in a particular case. We hold only

that there is nothing in the record before us showing why the broad restriction was warranted in

this case. Accordingly, we remand for resentencing with the instruction that if the circuit court,

in its discretion, elects to suspend any portion of the sentence and places Fazili on probation

again with a condition limiting internet access, that it either clarify the specific reasons that

would justify a general ban on internet usage or more narrowly tailor any internet-use restrictions

to effectuate specific purposes related to probation.

                    C. Delegation Under Code § 19.2-303 and Reasonableness

       “Probation statutes provide a remedial tool in the rehabilitation of criminals and, to that

end, should be liberally construed.” Wilson v. Commonwealth, 67 Va. App. 82, 89 (2016)

(citing Wright v. Commonwealth, 32 Va. App. 148, 151 (2000)). Code § 19.2-303 provides,

“[a]fter conviction, whether with or without jury, the court may suspend imposition of sentence

or suspend the sentence in whole or part and in addition may place the defendant on probation

under such conditions as the court shall determine.” (Emphasis added). Pursuant to this section,

a circuit court may “impose such reasonable terms and conditions of probation as it deems

appropriate.” Murry, 288 Va. at 122 (citing Dyke v. Commonwealth, 193 Va. 478, 484 (1952)).

“The only statutory limitation on the court’s exercise of its discretion is ‘one of reasonableness.’”

Id. (quoting Anderson v. Commonwealth, 256 Va. 580, 585 (1998)).

       Nevertheless, the circuit court’s power to impose conditions of probation is not unlimited,

and circuit courts may not delegate to probation officers responsibilities that are the sole

province of the circuit courts. Wilson, 67 Va. App. at 89 (holding that the circuit court

improperly delegated determination of the amount of restitution to be paid to a probation officer

                                                 -9-
when Code § 19.2-305.2 made clear that the determination was the sole province of the circuit

court). Under Code § 19.2-303, unlike the code section at issue in Wilson, it is only the province

of the circuit court to determine the conditions of probation. However, unless a statute

specifically imposes on the circuit court the duty to set the parameters of the condition at issue,

the circuit court may set the bounds of the condition and delegate to the probation office the duty

to set the parameters of those conditions. See Miller v. Commonwealth, 25 Va. App. 727, 745

(1997) (explaining probation officers are “statutorily required to supervise, assist, and provide a

probationer with a statement of the conditions of his release from confinement,” and are

“charged by law with defining a probationer’s permissible or impermissible conduct”).

Essentially, while the circuit court sets the terms and conditions of probation, probation officers

enforce those terms and conditions and exercise discretion in doing so. Thus, although the

circuit court erred in failing to narrowly tailor this condition of probation by providing both a

rationale and guidance or parameters to the probation officer, in the abstract, the circuit court’s

delegation to the probation officer the authority to supervise Fazili’s internet usage was not an

improper delegation of authority.

                                        III. CONCLUSION

       In summary, based on the record before us, we hold that the probation condition barring

Fazili’s access to the internet was not narrowly tailored. We remand for resentencing with the

instruction that if the circuit court elects to again place Fazili on probation with a condition

limiting internet access, that it either clarify the specific reasons that would justify a general ban

on internet usage or that it more narrowly tailor any internet-use restrictions to effectuate specific

purposes of probation. We affirm the circuit court’s judgment in all other respects.

                                               Affirmed in part, and reversed and remanded in part.




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