     Case: 11-40236   Document: 00511884578     Page: 1   Date Filed: 06/12/2012




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

                                                                   FILED
                                                                  June 12, 2012

                                   No. 11-40236                   Lyle W. Cayce
                                                                       Clerk

UNITED STATES OF AMERICA,

                                             Plaintiff–Appellee
v.

HAROLD EARL SCALLON,

                                             Defendant–Appellant



                  Appeal from the United States District Court
                       for the Eastern District of Texas


Before REAVLEY, PRADO, and OWEN, Circuit Judges.
PER CURIAM:
        This case presents the narrow question whether the denial of a defendant’s
motion under 18 U.S.C. § 3583(e)(2) to modify the terms of supervised release
imposed as part of the original sentence falls within the scope of the defendant’s
waiver, as part of his plea agreement, of his right to appeal his conviction and
sentence and to contest his sentence in any post-conviction proceeding. We hold
that it does, and we therefore dismiss this appeal.
             I. FACTUAL AND PROCEDURAL BACKGROUND
        Defendant–Appellant Harold Earl Scallon pleaded guilty, pursuant to a
written agreement, to possession of material involving the sexual exploitation
of a minor. In his plea agreement, Scallon waived his right to appeal his
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                                     No. 11-40236

conviction and sentence “on all grounds” and to contest his sentence in “any
post-conviction proceeding”; he reserved the right to appeal any punishment
imposed in excess of the statutory maximum and to make a claim that ineffective
assistance of counsel affected the validity of his appeal waiver. The district court
sentenced Scallon to 78 months of imprisonment and to a five-year term of
supervised release that included standard conditions of supervision and
additional supervised release terms. Scallon timely appealed; his appointed
appellate counsel was granted leave to withdraw pursuant to Anders; and his
appeal was dismissed as frivolous. United States v. Scallon, No. 08-40652, 2009
WL 1675499, 326 F. App’x 814 (5th Cir. June 16, 2009).
      Proceeding pro se, Scallon filed a “Verified Motion and Request of
Modification of Terms of Supervised Release,” pursuant to 18 U.S.C.
§ 3583(e)(2).1 He asked the district court to delete or modify standard conditions
1 and 13 of his supervised release, which precluded him from leaving the judicial
district without permission and required that third parties, including employers,
be notified of risks associated with his criminal history. He also asked the
district court to delete or modify the additional conditions of supervised release
he identified as conditions 2, 3, 4, and 5.             These conditions prohibited
unsupervised contact with children; prohibited possessing electronic devices,
such as cell phones and computers; prohibited viewing any images depicting
sexually explicit conduct; and required him to submit to warrantless searches.
      He argued that his sentence varied significantly from sentences imposed
for similar conduct in the federal district in which he was convicted and that the
additional terms of supervised release were greater than necessary to achieve
the goals of 18 U.S.C. § 3553(a). Regarding the latter, he argued that recidivism
was unlikely in his case. He also argued that the additional terms of his

      1
        Section § 3583(e)(2) permits the trial court to modify a defendant’s conditions of
supervised release “as it sees fit.” United States v. Johnson, 529 U.S. 53, 60 (2000).

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                                     No. 11-40236

supervised release were unconstitutionally vague and ambiguous. The district
court denied the motion on its merits and Scallon appealed. We granted the
Government’s motion to dismiss the appeal based on Scallon’s appeal waiver.
United States v. Scallon, No. 09-41126 (5th Cir. May 4, 2010).
      Scallon then filed a “Second Motion and Request for Modification of
Sentence Including Terms and Conditions of Supervised Release,” pursuant to
§ 3583(e)(2). In addition to challenging the same conditions of his supervised
release that he had challenged in his first motion, in his second motion Scallon
also challenged the first additional term of his supervised release, which
required him to register as a sex offender. Scallon also made two new legal
arguments: (1) that the sex offender Guidelines were unconstitutionally flawed
because they were not based on empirical data and double-counted by effectively
increasing a defendant’s sentence to reflect the kind of harm that had already
been accounted for by the base offense level or other enhancements; and (2) that
the challenged conditions were an unconstitutional delegation of the district
court’s sentencing authority to the probation office. The Government moved to
dismiss Scallon’s motion based on his appeal waiver.2 The district court denied
Scallon’s § 3583(e)(2) motion on the basis that it was “without merit” and denied
the Government’s motion as moot. Scallon timely appealed.
                                 II. DISCUSSION
      We have jurisdiction over Scallon’s appeal under 28 U.S.C. § 1291. We
review de novo whether an appeal waiver bars an appeal. United States v.
Hildenbrand, 527 F.3d 466, 474 (5th Cir. 2008). “A defendant may waive his
statutory right to appeal as part of a valid plea agreement, provided (1) his or
her waiver is knowing and voluntary, and (2) the waiver applies to the
circumstances at hand, based on the plain language of the agreement.” United

      2
         The Government also argued that Scallon’s motion was procedurally barred insofar
as Scallon had not raised his claims on direct review.

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                                  No. 11-40236

States v. Jacobs, 635 F.3d 778, 781 (5th Cir. 2011) (per curiam) (internal
quotation marks omitted).        “We apply ordinary principles of contract
interpretation when we construe the scope of a waiver agreement, with the
caveat that the text should be interpreted narrowly against the government.”
United States v. Cooley, 590 F.3d 293, 296 (5th Cir. 2009) (per curiam) (footnote
omitted).
      The Government contends that this appeal falls within the broad waiver
of his right to appeal signed by Scallon as part of his plea agreement, and that
we should therefore dismiss the appeal. As part of his plea agreement, Scallon
signed a waiver that states:
      Defendant expressly waives the right to appeal the conviction and
      sentence in this case on all grounds. Defendant further agrees not
      to contest the sentence in any post-conviction proceeding, including,
      but not limited to a proceeding under 28 U.S.C. § 2255. Defendant,
      however, reserves the right to appeal the following: (a) any
      punishment imposed in excess of the statutory maximum and (b) a
      claim of ineffective assistance of counsel that affects the validity of
      the waiver itself.
      We have never addressed whether an appeal waiver such as Scallon’s bars
an appeal from the denial of a defendant’s motion under 18 U.S.C. § 3583(e)(2)
to modify the terms of supervised release imposed as part of his original
sentence, but we addressed a similar question in United States v. Cooley, 590
F.3d 293 (5th Cir. 2009) (per curiam). The defendant in Cooley had moved to
modify his sentence under 18 U.S.C. § 3582(c)(2). Id. at 295. Section 3582(c)(2)
provides that, with respect to defendants “sentenced to a term of imprisonment
based on a sentencing range that has subsequently been lowered by the
Sentencing Commission,” a court may—upon motion or by its own
motion—reduce the defendant’s term of imprisonment accordingly. After the
district court denied his motion, the Cooley defendant appealed. Cooley, 590



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F.3d at 295. We first considered his appeal waiver, which we described as
“broadly written”; it stated:
      [D]efendant hereby expressly waives the right to appeal his
      sentence on any ground, including but not limited to any appeal
      right conferred by [18 U.S.C. §] 3742 on the defendant, and the
      defendant further agrees not to contest his sentence in any post-
      conviction proceeding, including but not limited to a proceeding
      under [28 U.S.C. §] 2255. The defendant, however, reserves the
      right to appeal the following: (a) any punishment imposed in excess
      of the statutory maximum, and (b) any punishment to the extent it
      constitutes an upward departure from the Guidelines range deemed
      most applicable by the sentencing court.
Cooley, 590 F.3d at 296. In holding that such an appeal waiver did not bar the
Cooley defendant’s appeal, we reasoned that § 3582(c)(2) motions merely “bring
to the court’s attention changes in the guidelines that allow for a sentence
reduction.” Id. at 297 (internal quotation marks omitted). Section 3582(c)(2)
motions   do   “not    contest   the   district   court’s   original   sentence      of
imprisonment . . . because § 3582(c)(2) provides no avenue through which to
attack the original sentence.” Id. (internal quotation marks omitted). Therefore,
such motions are “not properly considered an ‘appeal’ or ‘collateral proceeding’
under the terms of a general waiver of appeal.” Id. at 297.
      Though similar, Cooley does not dictate the outcome in this case. No
condition—such as a change to the Guidelines—must be fulfilled before a
defendant moves under § 3583(e)(2) to modify the terms of his supervised
release. Unlike § 3582(c)(2), which allows a defendant to bring a specific change
to the district court’s attention, § 3583(e)(2) provides an avenue through which
a defendant can directly attack his terms of supervised release, which are part
of a defendant’s original sentence. See United States v. Valdez-Sanchez, 414
F.3d 539, 542 (5th Cir. 2005) (“Supervised release . . . [is a] component[] of the
original sentence[.]”). The sorts of challenges Scallon brought in his § 3583(e)(2)



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                                       No. 11-40236

motion could have been raised on direct appeal3 or as part of a collateral attack,
and Scallon unequivocally waived both of those options in his written plea
agreement; we therefore hold that a defendant’s appeal from the denial of his
§ 3583(e)(2) motion falls within the scope of a broadly-worded appeal waiver like
Scallon’s.4
                                   III. CONCLUSION
       For the foregoing reasons, Scallon’s appeal is dismissed.
       DISMISSED.




       3
         See, e.g., United States v. Hartshorn, 163 F. App’x 325, 329 (5th Cir. 2006) (finding
condition of supervised release to be beyond district court’s statutory authority, and therefore
outside the scope of defendant’s appeal waiver).
       4
         The Tenth and Eleventh Circuits have squarely held that a defendant’s broad appeal
waiver does not bar that defendant’s appeal from an order modifying or revoking the terms
of his supervised release where that modification or revocation was sought by the government
in a § 3583(e)(2) motion. See United States v. Lonjose, 663 F.3d 1292, 1302 (10th Cir. 2011);
United States v. Carruth, 528 F.3d 845, 846 (11th Cir. 2008) (per curiam). That question
remains open in the Fifth Circuit, and we need not reach it today. We note, though, that those
decisions are consistent with our holding here because each of those courts emphasized that
the defendant appealed from his modified conditions of supervised release— sought by the
Government and granted by the district court—not from “the original sentence imposed at
sentencing and memorialized in the judgment.” Lonjose, 663 F.3d at 1302; see Carruth, 528
F.3d at 846.

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