           Case: 16-10641   Date Filed: 01/23/2017   Page: 1 of 10


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-10641
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 5:05-cr-00046-SDM-TBS-1



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

versus

KYLE E. MCCLAMMA,

                                              Defendant - Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                            (January 23, 2017)

Before TJOFLAT, WILLIAM PRYOR, and JORDAN, Circuit Judges.

PER CURIAM:
             Case: 16-10641     Date Filed: 01/23/2017   Page: 2 of 10


      In 2006, Kyle McClamma was convicted of possession of child pornography

in violation of 18 U.S.C. § 2252A(a)(5)(B) and sentenced to 36 months’

imprisonment followed by a life term of supervised release.      This appeal arises

from the district court’s denial of Mr. McClamma’s motion to modify a condition

of his supervised release that requires supervised contact with his daughter. Mr.

McClamma argues that the district court abused its discretion in denying his

motion and that the condition itself is substantively unreasonable and

unconstitutional. After careful review of the record and the parties’ briefs, we

affirm the district court’s denial of the motion and hold that the district court

lacked jurisdiction to review Mr. McClamma’s legal and constitutional challenges

under 18 U.S.C. § 3583(e)(2).

                                         I

      In 2006, the district court imposed a condition of supervised release that

prohibited Mr. McClamma from having direct contact with minors without the

written approval of his probation officer and from entering any area where children

frequently congregate. Mr. McClamma had one daughter when this condition was

imposed, and the district court did not include an exception for contact with her.

Mr. McClamma did not appeal his conviction or sentence, and was released from

prison in April of 2009, when he began his life term of supervised release.




                                         2
                 Case: 16-10641   Date Filed: 01/23/2017   Page: 3 of 10


         In 2011, the district court clarified, on Mr. McClamma’s motion, the terms

of supervised release so as to allow Mr. McClamma to have contact and visitation

with his daughter, with the caveat that a third-party supervisor be present during

their meetings.      Mr. McClamma did not appeal the district court’s clarification

order.

         In January of 2012, Mr. McClamma filed a motion under 28 U.S.C. § 2255

to vacate the modified supervised release condition, arguing that the restriction on

contact with his daughter was unconstitutional.        Almost three years later, in

September of 2015, the district court denied the motion, finding the constitutional

arguments to be untimely.          We denied Mr. McClamma a certificate of

appealability.

         Before the district court ruled on his § 2255 motion, Mr. McClamma filed a

series of other motions: (1) a motion for early termination of his supervised release

in December of 2012; (2) a motion to modify the terms of his supervised release in

August of 2014 and (3) a second motion for early termination of his supervised

release in April of 2015. The district court denied both of his motions for early

termination.

         Mr. McClamma appealed the first denial, which we affirmed in an

unpublished opinion. See United States v. McClamma, 548 F. App’x 598, 599

(11th Cir. 2013). In his first motion for modification, Mr. McClamma asked the


                                           3
              Case: 16-10641     Date Filed: 01/23/2017   Page: 4 of 10


district court to exclude his two children (his younger daughter having been born

after the district court imposed the supervised release condition) from any contact

restrictions and to permit contact with minors when accompanied by adults. The

district court modified the condition as to his younger daughter but not as to his

older daughter.    Mr. McClamma appealed the order denying his motion for

reconsideration, but we affirmed in an unpublished opinion. See United States v.

McClamma, 613 F. App’x 846 (11th Cir. 2015).

      In September of 2015, Mr. McClamma filed the instant motion to modify the

conditions of his supervised release under § 3583(e)(2).             Mr. McClamma

requested that the district court remove all restrictions on his contact with his older

daughter so that he could spend more time with her. Mr. McClamma said that he

was going to attempt to change the time-sharing plan he had with his ex-wife in

family court and needed this modification to do so.

      Mr. McClamma argued that a modification was warranted because

circumstances had changed since the imposition of the modified condition of

supervised release. He explained that he had retained full-time employment, had

remarried, had a second child, and had been attending college courses twice a

week. He added that the circumstances surrounding the only approved third-party

supervisors, his mother and father, had changed as well: his father had recently

died and his mother had been diagnosed with breast cancer in 2011 and had


                                          4
             Case: 16-10641     Date Filed: 01/23/2017   Page: 5 of 10


reentered the workforce to pay for medical expenses.          Mr. McClamma also

asserted that the family court’s determination—that it was in the child’s best

interest for Mr. McClamma to maintain equitable parental rights—was relevant.

      Mr. McClamma argued in the alternative that the condition itself was

substantively unreasonable and violated his constitutional right to parent a child.

He argued that the condition was substantively unreasonable because the

restriction was not necessary to accomplish the policy goals associated with

supervised release terms and that he had demonstrated good behavior since he

committed his almost decade-old offense.           He also maintained that his

constitutional rights as a parent were not outweighed by the need for the restriction

because it was not sufficiently related to his offense and there was no indication he

posed a risk to children or to reoffend. Finally, Mr. McClamma argued that the

restriction created a disparity between similarly-situated defendants and should be

lifted under 18 U.S.C. § 3553(a)(6).

      In response, the government argued that Mr. McClamma had not

demonstrated any new grounds to support a reconsideration of prior rulings on

similar requests to modify his supervised release conditions. The government

argued that his constitutional and substantive unreasonableness arguments were

another attempt to relitigate his § 2255 motion.




                                          5
             Case: 16-10641     Date Filed: 01/23/2017   Page: 6 of 10


      The district court adopted the magistrate judge’s amended report and

recommendation and denied Mr. McClamma’s motion for modification.               The

R&R concluded that Mr. McClamma’s motion did not provide new factual or legal

arguments to support modification, and that a review of the § 3553(a) factors

confirmed that a modification was not warranted because many of the reasons Mr.

McClamma presented were “matters of convenience” that did not provide a legally

sufficient basis to modify the conditions of his supervised release. The R&R also

stated that Mr. McClamma’s constitutional and substantive unreasonableness

arguments were untimely.

                                         II

      We review the denial of a motion to modify a condition of probation under

18 U.S.C. § 3563(c) for abuse of discretion. See United States v. Seppario, 754

F.3d 1312, 1318 (11th Cir. 2013). Because we find the modification of a condition

of probation analogous to the modification of a condition of supervised release, see

Fed. R. Crim. P. 32.1, we apply the same standard of review here. This is the same

standard of review used by other circuits in similar cases. See, e.g., United States

v. Parisi, 821 F.3d 343, 347 (2d Cir. 2016); United States v. Nonahal, 338 F.3d

668, 670 (7th Cir. 2003). Under the abuse of discretion standard, “[w]e will

reverse only if we have a definite and firm conviction that the court committed a




                                         6
              Case: 16-10641     Date Filed: 01/23/2017   Page: 7 of 10


clear error of judgment in the conclusion reached.” United States v. Moran, 573

F.3d 1132, 1137 (11th Cir. 2009) (internal quotation marks omitted).



                                         III

      Under § 3583(e)(2), a district court may modify the conditions of a term of

supervised release at any time prior to the expiration or termination of the term

after considering particular factors set forth in § 3553(a). These factors are: (1) the

nature and circumstances of the offense; (2) the defendant’s history and

characteristics; (3) deterrence considerations; (4) public protection; (5) the need to

provide the defendant with training and education; (6) the applicable sentencing

guideline range for the offense; (7) the need to avoid unwarranted sentencing

disparities; (8) the Sentencing Commission’s pertinent policy statements; and (9)

the need to provide restitution to any victims of the offense. See §§ 3553(a)(1),

(a)(2)(B)–(D), (a)(4)–(7).     New or unforeseen circumstances can justify a

modification, but such circumstances are not necessary. See, e.g., Parisi, 821 F.3d

at 347 (recognizing that new or unforeseen circumstances are not the exclusive

justifications for modifying supervised release conditions); United States v. Evans,

727 F.3d 730, 732–33 (7th Cir. 2013) (same).

      Here, the district court did not abuse its discretion in denying Mr.

McClamma’s motion to modify his supervised release. A review of the § 3553(a)


                                          7
                Case: 16-10641        Date Filed: 01/23/2017        Page: 8 of 10


factors was explicitly referenced in the magistrate’s judge’s R&R and the district

court found that Mr. McClamma did not present circumstances meriting a

modification to his release restrictions.

       We agree with the district court that Mr. McClamma’s new marriage and the

birth of his second daughter are not new circumstances that affect the restrictions

imposed on his visitations with his older daughter. We came to this conclusion in

our June 2015 opinion affirming the denial of Mr. McClamma’s first motion for

modification. See McClamma, 613 F. App’x at 849. In that opinion we also

emphasized the opposition of Mr. McClamma’s ex-wife to the modification, see

id., and Mr. McClamma has not shown that his ex-wife has changed her position.

Further, while his job and classes may make it more difficult for Mr. McClamma

to schedule visits with his daughter, they are not enough to show an abuse of

discretion. The unfortunate death of Mr. McClamma’s father and his mother’s

diminished availability are also insufficient to remove a restriction that we

affirmed a little over a year ago.1

                                                IV



1
  Mr. McClamma also argues that his “exceptionally good” behavior warrants a modification.
The government responds with evidence that Mr. McClamma has failed numerous polygraph
tests and testimony from his therapist suggesting concerns about recidivism and pedophilia.
Because Mr. McClamma did not present this argument below, we do not consider it here. See
Access Now, Inc. v. Sw. Airlines, Co., 385 F.3d 1324, 1331 (11th Cir. 2004) (“This Court has
repeatedly held than an issue . . . raised for the first time [on] appeal will not be considered[.]”)
(internal quotation marks omitted).
                                                 8
              Case: 16-10641     Date Filed: 01/23/2017    Page: 9 of 10


      As for Mr. McClamma’s argument that the modified condition is

unconstitutional or substantively unreasonable, we join the majority of our sister

circuits and find that the district court lacked jurisdiction to review these claims.

      The Second, Fifth, and Ninth Circuits have recognized that § 3583(e)(2)

cannot be used as a means to challenge the legality or constitutionality of

supervised release conditions. See United States v. Lussier, 104 F.3d 32, 34 (2d

Cir. 1997) (holding that the plain language of § 3583(e)(2) indicates illegality is

not a proper ground for modification of condition of supervised release); United

States v. Hatten, 167 F.3d 884, 886 (5th Cir. 1999) (ruling that the district court did

not have jurisdiction to modify condition of supervised release on illegality

grounds); United States v. Gross, 307 F.3d 1043, 1044 (9th Cir. 2002) (holding

that illegality was not a proper ground to modify a supervised release term). The

Seventh Circuit is the only circuit that does not bar substantive legal challenges to

conditions of supervised release. See United States v. Neal, 810 F.3d 512, 518–

520 (7th Cir. 2016) (holding that defendants should be able to raise “substantive

challenges that raise real concerns about the offender’s and society’s prospects of

benefitting from a term of supervised release”).

     Significantly, § 3583(e)(2) explicitly states which factors a district court must

consider when reviewing a motion to modify a condition of supervised release.

Absent from that list are illegality and constitutionality. Accordingly, § 3583(e)(2)


                                           9
             Case: 16-10641     Date Filed: 01/23/2017   Page: 10 of 10


may not be used to challenge the legality or constitutionality of a supervised

release condition. As the Ninth Circuit explained in Gross:

     Congress, by enacting the Sentencing Reform Act of 1984, limited the
     manner in which a defendant may challenge the legality of a
     supervised release condition to: (1) direct appeal, (2) § 2255 habeas
     corpus relief, and (3) within [fourteen] days of the district court’s
     decision, Rule 35[(a)] motion. It would frustrate Congress’[] intent if
     this court were to interpret § 3583(e)(2) to authorize a district court to
     modify or rescind an allegedly illegal condition.

307 F.3d at 1044. Cf. United States v. Frady, 456 U.S. 152, 164–65

(acknowledging that direct appeals and collateral attacks serve different purposes

and rejecting availability of “endless postconviction collateral attacks”).       Mr.

McClamma did not directly appeal the initial condition in 2006 or try to appeal the

modification of the condition in 2011. He never filed a Rule 35(a) motion and his

§ 2255 motion was denied. Mr. McClamma cannot now use § 3583(e)(2) as a

vehicle to raise legal and constitutional arguments.

                                         V

      We affirm the district court’s denial of Mr. McClamma’s motion to modify

the conditions of supervised release and conclude that the district court lacked

jurisdiction to consider Mr. McClamma’s constitutional and substantive

reasonableness arguments.

     AFFIRMED.




                                         10
