                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                                 TENTH CIRCUIT                        November 10, 2015

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                         No. 14-6223
                                                  (D.C. No. 5:12-CR-00078-D-1)
CARL WAYNE DAVIS,                                         (W.D. Okla.)

      Defendant - Appellant.


                              ORDER AND JUDGMENT*


Before LUCERO, GORSUCH, and McHUGH, Circuit Judges.


      After Mr. Davis pleaded guilty to federal gun charges and served his prison

term he was placed on supervised released. Soon after his release, though, state

officials convicted him of a new crime. For its part and in response to this news, the

district court opted not to revoke Mr. Davis’s federal supervised release but to

modify its terms. Now, among other things, the court forbade Mr. Davis from

accessing the Internet. But Mr. Davis quickly violated these new terms too. And at

      *
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
that point the district court did decide to revoke his release and sentence Mr. Davis to

a new prison term — though one followed by yet another term of supervised release

that, again, included conditions forbidding him from accessing the Internet.

      Before us, Mr. Davis contends, among other things, that the Internet use

condition the district court imposed at his latest sentencing hearing cannot be squared

with United States v. Ullmann, 788 F.3d 1260 (10th Cir. 2015). Decided after the

district court issued its latest sentence in this case, Ullmann holds that supervised

release conditions completely prohibiting “Internet use or use of Internet-capable

devices will typically constitute greater deprivations of liberty than reasonably

necessary, in violation of [18 U.S.C.] § 3583(d)(2).” Id. at 1263. To be sure, Mr.

Davis didn’t raise any Ullmann-type argument before the district court so our review

in this appeal can only be for plain error. And, as the government notes, it is within

our discretion to deny relief under that standard where (as here) the appellant’s

submissions do not address the plain error test, its various elements, or attempt to

argue how they might be met: it is not this court’s duty, after all, to make arguments

for a litigant that he has not made for himself. See Richison v. Ernest Grp., Inc.,

634 F.3d 1123, 1131 (10th Cir. 2011). At the same time, the government candidly —

and commendably — concedes that in this particular case all four elements of the

plain error test are satisfied. And just as we may decline to make arguments for

parties we may of course accept the well-taken arguments they do make, including

their well-taken concessions of error. We do so here. The case is remanded to the


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district court with instructions to vacate its sentence and issue one consistent with

Ullmann. All other points of appeal and motions are denied.

                                                ENTERED FOR THE COURT


                                                Neil M. Gorsuch
                                                Circuit Judge




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