     Case: 11-10428     Document: 00511906159         Page: 1     Date Filed: 06/29/2012




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

                                                                            FILED
                                                                           June 29, 2012
                                       No. 11-10428                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee
v.

JON LESLIE LYONS,

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 10-CR-190


Before HIGGINBOTHAM, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        The only issue before this court relates to an event that all parties agree
cannot occur for at least a decade. On September 1, 2010, defendant Jon Lyons
pleaded guilty to one count of possession of child pornography in violation of 18
U.S.C. § 2252A(a)(5)(B) and three counts of receiving child pornography in
violation of 18 U.S.C § 2252A(a)(2). On April 28, 2011, Lyons was sentenced to
120 months of imprisonment and thereafter to a lifetime term of supervised



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-10428       Document: 00511906159           Page: 2     Date Filed: 06/29/2012



                                        No. 11-10428

release, as authorized by 18 U.S.C. § 3583(k).1 Lyons’s written judgment
included as one special condition this lifetime term of supervised release, set
forth as follows: “The defendant shall not have access to a computer, cellular
device or any electronic equipment that allows access to the internet. The
defendant shall not have any access to the internet.” At sentencing, the district
court orally imposed this special condition by stating, “[w]ith regard to computer,
you’re not to have any computer. You’re not to access the Internet, ever.”
Notably, Lyons’s narrow objection was to “the blanket prohibition on the
computer access.”
       On appeal, Lyons argues that the imposition of the lifetime special
condition of supervised release infringes 18 U.S.C. § 3583(d)2 and infringes on
his First, Fifth, and Fourteenth Amendment rights. As a threshold issue, in


       1
         18 U.S.C. § 3583(k) states that, “the authorized term of supervised release for any
offense under . . . 2252A . . . is any term of years not less than 5, or life.”
       2
        In addition to imposing the mandatory conditions of supervised release set forth in
18 U.S.C. § 3563(a), § 3583(d) states:

              The court may order, as a further condition of supervised release,
              to the extent that such condition—
                      (1) is reasonably related to the factors set forth in section
                      3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D);
                      (2) involves no greater deprivation of liberty than is
                      reasonably necessary for the purposes set forth in section
                      3553(a)(2)(B), (a)(2)(C), and (a)(2)(D); and
                      (3) is consistent with any pertinent policy statements
                      issued by the Sentencing Commission pursuant to 28
                      U.S.C. 994(a);
              any condition set forth as a discretionary condition of probation
              in section 3563(b) and any other condition it considers to be
              appropriate . . . .

18 U.S.C. § 3583(d). 18 U.S.C. § 3553(a)(1) reads, “the nature and circumstances of the offense
and the history and characteristics of the defendant,” and 18 U.S.C. § 3553(a)(2)(B)-(D) read,
“(B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further
crimes of the defendant; and (D) to provide the defendant with needed educational or
vocational training, medical care, or other correctional treatment in the most effective
manner.”

                                               2
   Case: 11-10428   Document: 00511906159     Page: 3   Date Filed: 06/29/2012



                                 No. 11-10428

order to reach—indeed, before reaching—his statutory complaint, and certainly
before reaching any constitutional complaints, we must address the discrepancy
between the written judgment and the oral pronouncement of Lyons’s sentence.
When a written judgment conflicts with the oral pronouncement of sentencing,
the oral pronouncement controls. United States v. Torres-Aguilar, 352 F.3d 934,
935 (5th Cir. 2003) (per curiam). However, where, as is the circumstance here,
there is an ambiguity between the two, “we must look to the intent of the
sentencing court, as evidenced in the record to determine the defendant’s
sentence.” Id. (internal quotation marks and citation omitted).
      The record in this case, however, does not resolve whether the sentencing
court’s intention was to prohibit Lyons’s future access to computers in general
(Lyons’s objection at sentencing) or specifically only his future access to
computers and electronic devices that offer internet access (Lyons’s objection on
appeal). For the purposes of viewing child pornography, and in the context of
Lyons’s crimes, both forms of technology might trigger grave concern, although
we note that the written judgment’s focus on electronic access to the internet is
a more tailored special condition. Because we will not guess at a sentencing
judge’s intent, United States v. Garcia-Ortiz, 310 F.3d 792, 795 (5th Cir. 2002),
nor can resentencing occur without the defendant’s presence, Fed. R. Crim. P.
43; United States v. Rosenbaum-Alanis, 483 F.3d 381, 382 (5th Cir. 2007), we
remand the case for resolution of the ambiguity in this special condition of
supervised release. See United States v. Calhoun, No. 11-41018, 2012 WL
2052959, at *1 (5th Cir. June 7, 2012) (unpublished) (per curiam).
      As additional guidance, we note that in the extensive sentencing colloquy,
the sentencing judge understandably focused concern on the considerations set
forth in 18 U.S.C. § 3583(d)(1) (that special conditions be “reasonably related”
to enumerated factors), especially, inter alia, on the nature and circumstances
of Lyons’s offense and his history and characteristics. Informed legally by the

                                       3
   Case: 11-10428       Document: 00511906159         Page: 4     Date Filed: 06/29/2012



                                       No. 11-10428

abundance of recent caselaw on this topic, we draw attention also to the
requirement of narrow tailoring under 18 U.S.C. § 3583(d)(2) (that special
conditions “involve[] no greater deprivation of liberty than is reasonably
necessary”), as well as the statutory importance of clarity and specificity, above
all relating to lifetime special conditions. See 18 U.S.C. § 3583(f) (“The court
shall direct that the probation officer provide the defendant with a written
statement that sets forth all the conditions to which the term of supervised
release is subject, and that is sufficiently clear and specific to serve as a guide
for the defendant’s conduct and for such supervision as is required.”).3
       For the above reasons, we VACATE the sentence and REMAND the case
to the district court to clarify and conform the sentence to the specific and
properly tailored supervised release condition intended.




       3
         Lyons’s specter of evermore bans tied to technology that is ever-changing, yet could
trigger revocation, may prove to be exaggerated in eventual consequence because defendants
have prompt access to modification of supervised release conditions pursuant to 18 U.S.C. §
3583(e) and Federal Rule of Criminal Procedure 32.1(c). See United States v. Hilliker, No. 11-
50112, 2012 WL 1255020, at *2 (5th Cir. Apr. 13, 2012) (unpublished) (per curiam). Indeed
the district court inserted a variation on this safeguarding supervisory role in its final
paragraph of the written judgment when referring to use or possession of gaming consoles:
“The defendant shall not use or possess any gaming consoles (including, but not limited to
Xbox, PlayStation, Nintendo), or devices without the express permission of the Court.”

                                              4
