     Case: 18-20244      Document: 00515066755         Page: 1    Date Filed: 08/07/2019




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

                                      No. 18-20244                          FILED
                                                                       August 7, 2019
                                                                       Lyle W. Cayce
UNITED STATES OF AMERICA,                                                   Clerk

              Plaintiff–Appellee,

v.

SAMIER PATRICK CLARK,

              Defendant–Appellant.


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:17-CR-311-1


Before CLEMENT, HAYNES, and WILLETT, Circuit Judges.
PER CURIAM:*
       This appeal arises from a district court judgment requiring Samier
Patrick Clark to “not subscribe to any computer online service, nor . . . access
any Internet service during [his] supervision, unless approved in advance in
writing by the United States Probation Officer” as a special condition of
supervised release. The sole issue on appeal is whether the district court
committed reversible plain error by imposing this requirement. Because there
is no error in this requirement absent its most draconian interpretation, we



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-20244
AFFIRM the sentence as MODIFIED with instructions that enforcement of the
condition be subject to our interpretation contained herein.
                                         I
      Clark pleaded guilty without a plea agreement to one count of
distribution of child pornography, in violation of 18 U.S.C. § 2252(a)(2)(B) and
(b)(1); one count of receipt of child pornography, in violation of 18 U.S.C.
§ 2252(a)(2)(B) and (b)(1); and one count of possession of child pornography, in
violation of 18 U.S.C. §2252(a)(5)(B) and (b)(2). Clark’s presentence report
noted that his offense involved the use of computer and Internet services for
possession, transmission, receipt, or distribution of contraband images. All
told, Clark’s computer contained 143 images and 68 videos of child
pornography.
      The district court sentenced Clark to 151 months of imprisonment and
ten years of supervised release. The court also imposed several conditions of
supervised release. Relevant to this appeal, the court stated in part that “[y]ou
shall not subscribe to any computer online service, nor shall you access any
Internet service during the length of your supervision, unless approved in
advance in writing by the United States Probation Officer.” Clark did not object
to this condition before the district court.
      On appeal, Clark contends that the district court committed reversible
error by imposing this condition because the condition is unreasonably
restrictive. Specifically, Clark claims that the condition requires him to seek
the approval of a probation officer “every single time he must access the
Internet for an innocent purpose.” He asserts this “imposes a greater
deprivation of liberty than is necessary to protect children . . . and deter him
from committing sex crimes against children.”




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                                        II
      Because Clark did not object to the district court’s imposition of the
computer and Internet use condition, we review for plain error. See Puckett v.
United States, 556 U.S. 129, 135 (2009).
                                       III
      A peculiarity in this case is that the government and Clark are
substantially in agreement: Clark should not be required to secure permission
for each instance of computer use or Internet access, and we should grant some
kind of relief to ensure that Clark’s probation officer approves categories of
innocuous computer usage (e.g., to pay bills or take online classes). The parties
only disagree over what form relief should take: Clark would prefer a limited
remand, while the government would have us affirm with an instruction that
the condition not be interpreted to require approval for each instance of
computer use and Internet access.
      We recently used the Government’s proposed approach in United States
v. Sealed Juvenile, 781 F.3d 747 (5th Cir. 2015), and United States v. Melton,
753 F. App’x 283 (5th Cir. 2018) (per curiam), under similar facts—though
subject to a different standard of review. We have also used the same approach
in the plain-error context to resolve doubt over how to interpret a different kind
of special condition. See United States v. Guerra, 856 F.3d 368, 370 (5th Cir.
2017) (“Lest there be any doubt, we AFFIRM the sentence as MODIFIED.”).
Here too, we prefer the government’s approach: The condition is unreasonable
“to the extent [it] require[s] the [defendant] to request permission . . . every
time he needs to access the Internet.” Sealed Juvenile, 781 F.3d at 756.
                                       IV
      Plain-error review mandates “considerable deference to the district
court.” United States v. Peltier, 505 F.3d 389, 391 (5th Cir. 2007). The relevant
question is “whether the severity of the error’s harm demands reversal,” and
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review must not be treated as a tool to decide “whether the district court’s
action . . . deserves rebuke.” United States v. Escalante-Reyes, 689 F.3d 415,
423 (5th Cir. 2012) (en banc) (citation and internal quotation marks omitted).
As the Supreme Court has explained, “plain-error review is not a grading
system for trial judges.” Henderson v. United States, 568 U.S. 266, 278 (2013).
As such, “appellate-court authority to remedy [an] error” under this test “is
strictly circumscribed.” Puckett, 556 U.S. at 134. Clark’s burden is “difficult, as
it should be.” Id. at 135 (quotation omitted).
      To show reversible plain error, Clark bears the burden of establishing
each prong of a four-prong test. He must show “(1) an error (2) that is clear or
obvious, (3) that affects substantial rights, and (4) that seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” United States
v. Nava, 762 F.3d 451, 452 (5th Cir. 2014) (citations omitted).
      District courts have broad discretion to impose special conditions of
supervised release. United States v. Fernandez, 776 F.3d 344, 346 (5th Cir.
2015) (per curiam). However, their discretion is cabined by 18 U.S.C. § 3583(d),
which requires conditions of supervised release to be “reasonably related” to
one or more of four factors enumerated in 18 U.S.C. § 3553(a):
      (1) the nature and characteristics of the offense and the history and
      characteristics of the defendant, (2) the deterrence of criminal conduct,
      (3) the protection of the public from further crimes of the defendant, and
      (4) the provision of needed educational or vocational training, medical
      care, or other correctional treatment to the defendant.

United States v. Weatherton, 567 F.3d 149, 153 (5th Cir. 2009) (citing 18 U.S.C.
§§ 3583(d)(1), 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D)). Most importantly for
this case, § 3583(d) also instructs that a special condition impose “no greater




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deprivation of liberty than is reasonably necessary for the purposes” of the last
three factors. 18 U.S.C. § 3583(d)(2). 1
      We have recently reiterated that we will ordinarily “not find plain error
when we have not previously addressed an issue.” United States v. Cabello, 916
F.3d 543, 544 (5th Cir. 2019) (per curiam) (quoting United States v. Evans, 587
F.3d 667, 671 (5th Cir. 2009)) (internal quotation marks omitted). But we have
addressed this very issue. In Sealed Juvenile we held that “to the extent
[special conditions of supervised release] require [the defendant] to request
permission every time he needs to use a computer, or every time he needs to
access the Internet, we find them to be unreasonably restrictive.” 781 F.3d at
756. We agreed with the defendant in Sealed Juvenile that such a condition
constituted a much greater deprivation of liberty than reasonably necessary
under § 3583(d)(2): “We must recognize that access to computers and the
Internet is essential to functioning in today’s society. The Internet is the means
by which information is gleaned, and a critical aid to one’s education and social
development.” Id.
      In Melton we reiterated our conclusion from Sealed Juvenile, stating that
“an otherwise permissible condition limiting Internet access can be
unreasonably restrictive if given the more austere” interpretation requiring “a
separate pre-use approval by [a] probation officer every single time [the
defendant] accesses the Internet.” 753 F. App’x at 289.
      Clark does not contend that the special condition is not reasonably
related to the four statutory factors enumerated in §3553(a), nor could he. See
United States v. Paul, 274 F.3d 155, 169 (5th Cir. 2001) (concluding that a
computer ban was reasonably related to a non-production child-pornography



      1 Any condition must also be “consistent with any pertinent policy statements issued
by the Sentencing Commission.” 18 U.S.C. § 3583(d)(3).
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                                  No. 18-20244
offense, as well as to the interests in preventing recidivism and protecting the
public). Instead, Clark urges us to consider whether the condition satisfies
§ 3583(d)’s requirement that a condition be narrowly tailored. To the extent
that the condition would require Clark to request permission for each instance
of computer use, we conclude that it would not.
      Sealed Juvenile and Melton make clear that such a condition is not
reasonably related to any of the four factors under § 3553(a). Here, if the
district court had intended such an interpretation—which we think unlikely—
the error is plain.
      We further conclude that such an unreasonable condition, if ever
imposed, would affect Clark’s substantial rights. In United States v. Duke, we
recognized “the ubiquity and importance of the Internet to the modern world.”
788 F.3d 392, 400 (5th Cir. 2015) (per curiam). We have also observed, along
with a number of other circuits, that “computers and the internet have become
significant and ordinary components of modern life as we know it.” United
States v. Brigham, 569 F.3d 220, 234 (5th Cir. 2009); see also United States v.
Albertson, 645 F.3d 191, 200 (3d Cir. 2011) (“[I]n a time where the daily
necessities of life and work demand not only internet access but internet
fluency, sentencing courts need to select the least restrictive alternative for
achieving their sentencing purposes.”); United States v. Love, 593 F.3d 1, 11–
12 (D.C. Cir. 2010) (“The internet prohibition will, no doubt, substantially
affect [the defendant’s] day-to-day activities. It will deprive him of the easiest
way to pay his bills, check the weather, stay on top of world events, and keep
in touch with friends.”); United States v. Holm, 326 F.3d 872, 878 (7th Cir.
2003) (noting that a ban on all Internet use “renders modern life—in which,
for example, the government strongly encourages taxpayers to file their
returns electronically, where more and more commerce is conducted on-line,
and where vast amounts of government information are communicated via
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website—exceptionally difficult”). And in Sealed Juvenile, we said that “access
to computers and the Internet is essential to functioning in today’s society . . .
. [and] critical aid to one’s education and social development.” 781 F.3d at 756
(emphasis added). Thus, we find that such an austere interpretation of the
condition would affect Clark’s substantial rights.
       Having determined that such as ascetic reading of the condition would,
if manifested, satisfy the first three prongs of plain error, we must consider
whether we should exercise our discretion to provide a remedy.
       “[T]he fourth prong is meant to be applied on a case-specific and fact-
intensive basis.” United States v. Prieto, 801 F.3d 547, 554 (5th Cir. 2015) (per
curiam) (quoting United States v. John, 597 F.3d 263, 286 (5th Cir. 2010)). The
Supreme Court has rejected a “per se approach to plain-error review.” Puckett,
556 U.S. at 142 (quoting United States v. Young, 470 U.S. 1, 17 n.14 (1985)).
Since the government itself urges us to follow the approach found in Sealed
Juvenile and Melton, we choose to utilize our discretion to affirm the district
court with instructions that the enforcement of the computer and Internet use
condition be subject to the interpretation desired by both parties to this
appeal. 2
                                               V
       We think it unlikely the district court intended the unreasonable, but
“[l]est there be any doubt,” we AFFIRM as MODIFIED. Guerra, 856 F.3d. at



       2 While it is true that Clark may seek to modify this condition during his supervised
release pursuant to 18 U.S.C. § 3583(e)(2), and in United States v. Medonza-Velasquez, 847
F.3d 209, 213 (5th Cir. 2017), we declined to exercise our discretion because the condition
was modifiable, “the ability of a defendant to modify a special condition is only one factor
considered as we determine whether to exercise our discretion.” United States v. Alvarez, 880
F.3d 236, 242 (5th Cir. 2018) (per curiam). As in Alvarez, we choose not to make the possibility
of modification controlling because there is nothing in this case to counsel against rectifying
any error and because, as discussed, the special condition at issue here implicates essential
access to modern life. Id. at 241.
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                                No. 18-20244
370. Any enforcement of the condition shall be subject to the interpretation,
determinations, and instructions contained in this opinion.




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