                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 14-2118
                         ___________________________

                              United States of America

                         lllllllllllllllllllllPlaintiff - Appellee

                                            v.

                                    Nakia Phillips

                       lllllllllllllllllllll Defendant - Appellant
                                        ____________

                      Appeal from United States District Court
                   for the Eastern District of Missouri - St. Louis
                                   ____________

                           Submitted: January 12, 2015
                               Filed: May 5, 2015
                                 ____________

Before SMITH, BENTON, and SHEPHERD, Circuit Judges.
                           ____________

BENTON, Circuit Judge.

       In 2001, Nakia Mack Phillips pled guilty to statutory rape. In 2012, he failed
to register as a sex offender and was sentenced to 24 months’ imprisonment and 10
years’ supervised release. In 2014, two months into his release, the Probation Office
moved to revoke supervision. Phillips admitted violating release conditions, including
unsupervised contact with minors. The court sentenced him to 24 months’
imprisonment and supervision for life. As a special release condition, Phillips cannot
“possess or use . . . a computer, . . . gaming equipment, cellular devices, or any other
device with access to any ‘on line computer services,’ or subscribe to or use any
Internet service, . . . without the written approval of the probation office.” Phillips
appeals the lifetime supervision and the special condition. Having jurisdiction under
28 U.S.C. § 1291, this court affirms the lifetime supervision, vacates the special
condition, and remands.

       This court reviews revocation sentences for abuse of discretion. United States
v. Richey, 758 F.3d 999, 1001 (8th Cir. 2014). “A district court abuses its discretion
and imposes an unreasonable sentence when it fails to consider a relevant and
significant factor, gives significant weight to an irrelevant or improper factor, or
considers the appropriate factors but commits a clear error of judgment in weighing
those factors.” United States v. Wiedower, 634 F.3d 490, 493 (8th Cir. 2011). See
18 U.S.C. § 3553(a) (sentencing factors).

          Phillips challenges the substantive reasonableness of lifetime supervision. The
district court said it “considered all of the 3553(a) factors.” Acknowledging that
lifetime supervision “is a huge burden,” the court noted that Phillips is “a danger, and
. . . risk to the community” and he violated his release “after such a short period.” The
Guidelines range for supervised release was five years to life. “If the district court
imposes a within-Guidelines sentence, this court presumes the sentence is reasonable,
and [Phillips] bears the burden to rebut the presumption.” United States v. Manning,
738 F.3d 937, 947 (8th Cir. 2014). On appeal, Phillips makes no legal argument
rebutting the presumptive reasonableness of lifetime supervision. The sentence is no
abuse of discretion.

       This court reviews terms and conditions of supervised release for abuse of
discretion. United States v. Mefford, 711 F.3d 923, 926 (8th Cir. 2013). The
discretion to impose special conditions is limited by 18 U.S.C. § 3583(d). United
States v. Crume, 422 F.3d 728, 732 (8th Cir. 2005). “Under § 3583(d), a district court

                                          -2-
may impose special conditions of supervised release if the conditions are reasonably
related to the sentencing factors set forth in § 3553(a), involve no greater deprivation
of liberty than is reasonably necessary for the purposes set forth in § 3553(a), and are
consistent with any pertinent policy statements issued by the Sentencing
Commission.” United States v. Morais, 670 F.3d 889, 895 (8th Cir. 2012). “When
crafting a special condition of supervised release, the district court must make an
individualized inquiry into the facts and circumstances underlying a case and make
sufficient findings on the record so as to ensure that the special condition satisfies the
statutory requirements.” Wiedower, 634 F.3d at 493. “The lack of individualized
findings, however, does not require reversal if we can discern from the record the
basis for the court’s imposition of the condition.” Morais, 670 F.3d at 895.

      In its Sentencing Computation, the Probation Office reported:

      [Phillips’s] manager also indicated that they have received complaints
      from teenage females that Phillips had made them uncomfortable and
      was overly flirtatious with them. One female alleged that Phillips
      showed her a picture of his penis and the image was on his cell phone.
      A phone analysis was conducted by the St. Louis City Police Department
      Cyber Crimes Unit and there were two pictures of the offender’s naked
      penis . . . along with numerous pornographic pictures of adult females.

At the revocation hearing, the government did not pursue—and Phillips did not
admit—the teenage females’ complaints about his flirtatiousness nor the allegation
that he showed a picture of his penis. The Sentencing Computation does not indicate
how Phillips acquired the adult pornography. At the hearing, the government said:

      [A]s to whether or not he had shown cellphone pictures to teenage girls
      at the mall, I don’t believe it has been disputed that a forensic
      examination was made of his cellphone, and that there were pictures of
      his private parts on there. . . . He took nude pictures of himself. He
      downloaded obscene material . . . .


                                           -3-
Phillips did not object to the government’s statement that he “downloaded obscene
material.”1 The court said:

      I understand this is not a child pornography case, but it does involve sex
      with an underaged person. . . . I know that the allegation that he was
      showing pictures of that he had on his cellphone of his penis to . . . girls
      at the mall. [T]hat allegation has not been proven. He has not admitted
      it. It was certainly a part of the report to the Court, and I think it is
      undisputed that a forensic examination of his cellphone did show not
      only pictures of himself, his penis on the cellphone, but it also contained
      other pornographic photographs. Admittedly, it was not child
      pornography. It contained other pornographic photographs.

The record does not indicate that Phillips ever possessed child pornography.

      In Crume, this court vacated a broad ban on computer and Internet access
without written approval when the defendant never “used his computer for anything
beyond simply possessing child pornography.” Crume, 422 F.3d at 733. This court
was “not convinced that a broad ban from such an important medium of
communication, commerce, and information-gathering is necessary given the absence
of evidence demonstrating more serious abuses of computers or the Internet.” Id.
Rather, this court was “confident that the district court can impose a more
narrowly-tailored restriction on [defendant’s] computer use through a prohibition on
accessing certain categories of websites and Internet content and can sufficiently
ensure his compliance with this condition through some combination of random

      1
         Later, Phillips’s counsel said, “Now, with respect to what’s on the telephone[,]
I think that the condition he not possess obscene material will cover this.” When the
court said, “I think based on the things that you admit were found in the forensic
examination of the cellphone,” Phillips’s counsel said, “I don’t know that he admitted
to it – I just said that . . . I believe that the condition for possessing obscene material
would cover anything like that.”

                                           -4-
searches and software that filters objectionable material.” Id. (noting a “particular[]
reluctan[ce] to uphold sweeping restrictions on important constitutional rights”). See
also Wiedower, 634 F.3d at 495 (“[T]he record only shows that Wiedower used his
computer to receive and access child pornography, which under Crume is insufficient
to sustain a broad computer and internet ban” even with prior approval).

       In Morais, this court “decline[d] to construe Wiedower and Crume as
establishing a per se rule that a district court may never impose a prior-approval
Internet use restriction based on a defendant’s receipt and possession of child
pornography.” Morais, 670 F.3d at 896, 897 (affirming ban where defendant
“collected 8,200 images of child pornography over more than a decade,” “the offense
involved material that portrays sadistic or masochistic conduct or other depictions of
violence,” and expert testified “that without successful treatment, [defendant] was
likely to repeat the same conduct”). See also United States v. Deatherage, 682 F.3d
755, 759, 764 (8th Cir. 2012) (affirming prior-approval ban because “computer use
and internet access were central to” defendant’s possession of child pornography, he
graphically described sexual acts with children in online chat, and he violated pre-trial
release condition by accessing Internet); United States v. Bender, 566 F.3d 748, 750,
751-52 (8th Cir. 2009) (affirming prior-approval ban on computer and Internet access
where defendant “arranged on-line to meet a woman for sexual relations[] and pursued
a sexual relationship despite discovering that she was a minor” and viewed
pornography on public library computer).

      The special condition bans Phillips from accessing the Internet without written
approval. The court apparently premised the ban on Phillips’s possession of adult
pornography, including pictures of his own penis, and his statutory rape conviction.2

      2
        This court cannot discern from the record whether the court imposed the ban
based on the allegation that Phillips showed pictures of his penis to girls. To the
extent the court relied on that allegation, the court did not make sufficient findings on
the record.
                                          -5-
Because possessing child pornography may not necessarily justify a broad ban on
Internet access, Crume, 422 F.3d at 733, a court exceeds its discretion under § 3583(d)
by banning Internet access for possessing adult pornography. The prior-approval
provision does not save this ban, because Phillips only possessed adult pornography.
See Wiedower, 634 F.3d at 495 (“Crume, with a similar prior-approval provision,
forecloses this argument, at least where the defendant only received and possessed
child pornography.”). Cf. United States v. Munjak, 669 F.3d 906, 908 (8th Cir. 2012)
(affirming, on plain error review, prior-approval Internet ban because defendant used
computer to distribute child pornography); United States v. Durham, 618 F.3d 921,
944-45 (8th Cir. 2010) (same); United States v. Stults, 575 F.3d 834, 856 (8th Cir.
2009) (affirming, on abuse-of-discretion review, prior-approval Internet ban, with
exception for employment use, where defendant distributed child pornography).

        On remand, lesser restrictions on Phillips’s Internet access may be consistent
with § 3583(d). See Crume, 422 F.3d at 733 (noting availability of technology to
block certain sites). See also United States v. Poitra, 648 F.3d 884, 891 (8th Cir.
2011) (“[P]reventing a defendant—who has a demonstrated sexual interest in
children—from possessing all sexually explicit material is reasonably related to
preventing the defendant from committing sexual offenses in the future.”), citing
Wiedower, 634 F.3d at 497 (“[T]he district court was well within its discretion to
prohibit Wiedower from possessing pornography or sexually explicit material because
the record supports the district court’s conclusion that Wiedower had a deeply rooted
affinity for child pornography. . . . [W]e still believe that [the ban] would likely
facilitate his rehabilitation and protect the community by reducing the chance he will
relapse into this dark world”).

                                    *******

       The lifetime supervision is affirmed. The special condition is vacated and the
case remanded for proceedings consistent with this opinion.
                       ______________________________

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