                  United States Court of Appeals
                              For the Eighth Circuit
                          ___________________________

                                  No. 19-2077
                          ___________________________

                               United States of America

                          lllllllllllllllllllllPlaintiff - Appellee

                                             v.

                                  William Trimble, Jr.

                        lllllllllllllllllllllDefendant - Appellant
                                        ____________

                      Appeal from United States District Court
                   for the Southern District of Iowa - Des Moines
                                   ____________

                              Submitted: April 13, 2020
                               Filed: August 11, 2020
                                     [Published]
                                   ____________

Before KELLY, WOLLMAN, and STRAS, Circuit Judges.
                          ____________

PER CURIAM.

       William Trimble, Jr. pleaded guilty to possessing child pornography in
violation of 18 U.S.C. § 2252(a)(4). After completing his initial prison sentence,
Trimble violated the terms of his supervised release, and the district court resentenced
him to one year in prison followed by five years of supervised release. During his
term of imprisonment, Trimble filed a pro se motion to modify the conditions he
would face upon supervised release. The district court1 denied the motion, and
Trimble appeals.

                                 I. Background

      Trimble pleaded guilty after the government discovered 12 images and
19 videos depicting child pornography on his laptop computer. See 18 U.S.C.
§ 2252(a)(4). The district court initially sentenced him to five years in prison
followed by five years of supervised release. As relevant here, Trimble’s original
terms of supervised release included the following special conditions:

      •     The defendant shall not use alcohol and/or other intoxicants
            during the course of supervision.

      •     The defendant shall not patronize business establishments where
            more than fifty percent of the revenue is derived from the sale of
            alcoholic beverages.

      •     The defendant shall not have any contact (personal, electronic,
            mail, or otherwise) with any child under the age of 18, including
            in employment, without the prior approval of the U.S. Probation
            Officer. If contact is approved, the defendant must comply with
            any conditions or limitations on this contact, as set forth by the
            U.S. Probation Officer. Incidental contact in the course of daily
            commercial transactions is permissible.

      •     The defendant shall not possess or use a computer or any other
            device with an internal, external, or wireless modem, without the
            prior approval of the U.S. Probation Officer.


      1
      The Honorable Stephanie M. Rose, United States District Judge for the
Southern District of Iowa.

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       Trimble’s supervised-release conditions were later modified on two occasions
relevant to this appeal. On October 28, 2017, Trimble advised his probation officer
that, during his employment at the Dollar Tree, he had followed two 12-year-old boys
to ensure they were not stealing. The probation officer determined that this violated
the condition prohibiting non-incidental contact with a child under the age of 18
without prior approval. The probation officer recommended making a “clarifying
modification” to Trimble’s supervised-release conditions, which added: “You must
not obtain employment or volunteer where you would be supervising, working with
or associating with persons under the age of 18.” Trimble admitted to the violation
and agreed to the modification.

       On April 18, 2018, Trimble’s probation officer learned that one of Trimble’s
family members had mailed him a flash drive with pictures on it. The probation
officer noted that Trimble’s conditions of supervised release did not include a
prohibition on the possession of “other electronic communications or data storage
devices or media” and were limited to “a computer or any other device with an
internal, external, or wireless modem.” The probation officer recommended that
Trimble’s terms of supervised release be modified as follows:

      You must not access the internet or possess and/or use computers (as
      defined in 18 U.S.C. § 1030(e)(1)), internet capable devices, cellular
      telephones, and other electronic communications or data storage devices
      or media without the prior approval of the U.S. Probation Officer. If
      computer or internet use for employment is approved by the U.S.
      Probation Officer, you must permit third party disclosure to any
      employer or potential employer concerning any computer/internet
      related restrictions that are imposed upon you.

Trimble also agreed to this modification.

      On September 5, 2018, officers observed Trimble using a smart phone. They
learned that Trimble had purchased the phone on August 23, 2018, and that it had

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internet and Wi-Fi capabilities. They also discovered that Trimble had used the
phone to access an erotic-fiction website and Gmail, Facebook, and internet-dating
accounts that he had not registered with the Iowa Sex Offender registry as required.
Additionally, Trimble had taken pictures of women and sent them to another person
with lewd comments about the women’s appearance. Trimble had also written a letter
to a friend in prison stating that he had “learned to hide [his] new smart phone in the
trash during times [his] PO [would] be there.”

      The government moved to revoke Trimble’s supervised release based on this
conduct. Trimble stipulated to the violation, and the district court revoked his
supervised release and sentenced him to one year in prison followed by five years of
supervised release.

       While serving his revocation sentence, Trimble filed a pro se motion to modify
the conditions of his upcoming supervised release. Specifically, Trimble challenged
the conditions prohibiting him from: (1) possessing a media storage device;
(2) employment at a location where he would encounter minors; and (3) employment
at a business that derives the majority of its revenue from alcohol sales. The district
court denied the motion. This appeal followed.

                                    II. Analysis

       The district court has statutory authority to “modify, reduce, or enlarge the
conditions of supervised release, at any time prior to the expiration or termination of
the term of supervised release.” 18 U.S.C. § 3583(e)(2). “District courts enjoy broad
discretion in the imposition or modification of conditions for terms of supervised
release, and we review only for abuse of discretion.” United States v. Davies, 380
F.3d 329, 332 (8th Cir. 2004). The district court does not abuse its discretion by
refusing to modify supervised-release conditions that are “reasonably related to the
sentencing factors, involve no greater deprivation of liberty than is reasonably

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necessary, and are consistent with the Sentencing Commission’s pertinent policy
statements.” United States v. Romig, 933 F.3d 1004, 1007 (8th Cir. 2019).

      A. Procedural Bar

       We must first address the government’s contention that, because Trimble did
not challenge these conditions of supervised release when they were originally
imposed, his request to modify them now constitutes an improper collateral attack on
his underlying sentence. To support this argument, the government cites our cases
indicating that a defendant may not challenge the validity of a previously imposed
supervised-release condition for the first time in a supervised-release revocation
proceeding. See United States v. Simpson, 932 F.3d 1154, 1156 (8th Cir. 2019)
(rejecting jurisdictional and constitutional challenges to the reimposition of
previously imposed supervised-release conditions); United States v. Miller, 557 F.3d
910, 913 (8th Cir. 2009) (rejecting challenges in a revocation proceeding to the
validity of the underlying supervised-release conditions that led to revocation).
Instead, we have explained, the proper method of challenging the validity of
supervised-release conditions is “through a direct appeal or a habeas corpus
proceeding.” Miller, 577 F.3d at 913.

      But this appeal does not arise from a supervised-release revocation proceeding,
and Trimble does not challenge the validity of his underlying supervised-release
conditions. Instead, Trimble has asked the district court to exercise its statutory
authority to modify the terms of his supervised release. See 18 U.S.C. § 3583(e)(2).
The district court had authority to rule on this request, and there is no barrier to our
reviewing the district court’s judgment on appeal.




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       B. Possession of Media Storage Devices

      The first challenged condition states that Trimble “must not access the internet
or possess and/or use computers (as defined in 18 U.S.C. § 1030(e)(1)), internet
capable devices, cellular telephones, and other electronic communications or data
storage devices or media without the prior approval of the U.S. Probation Officer.”
This condition gives the probation officer discretion to allow Trimble to use a
computer or the internet for purposes of employment, but Trimble must obtain the
probation officer’s prior approval and notify the employer or potential employer of
any restrictions imposed on his computer or internet use. Trimble agreed to this
condition after the incident where a family member mailed him a flash drive. Trimble
now contends that this condition imposes a greater deprivation of liberty than is
reasonably necessary because media storage devices are necessary to store resumes
and job applications.

       Considering Trimble’s past use of electronic devices during both his offense
conduct and while on supervised release, restricting his access to the internet,
computers, and media storage devices is reasonably related to the sentencing factors
and the Sentencing Commission’s pertinent policy statements. See United States v.
Demers, 634 F.3d 982, 984 (8th Cir. 2011) (noting that we have “repeatedly rejected”
arguments to the contrary); United States Sentencing Guidelines § 5D1.3(d)(7)(B)
(2012). The condition is not an absolute prohibition, and it specifically contemplates
that Trimble’s probation officer may allow access to these devices for employment
purposes. See United States v. Notman, 831 F.3d 1084, 1089 (8th Cir. 2016) (stating
that “whether the restriction is a total ban” is a relevant factor in assessing restrictions
like this one). In light of Trimble’s conduct, and because he may seek approval when
needed for employment purposes, we conclude that the district court did not abuse its
discretion by declining to modify or eliminate this condition.




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      C. Employment with Minors

       Next, Trimble challenges two related conditions. The first condition, which the
district court imposed as part of Trimble’s original sentence, provides that he “shall
not have any contact (personal, electronic, mail, or otherwise) with any child under
the age of 18, including in employment, without the prior approval of the U.S.
Probation Officer.” The second condition, added with Trimble’s consent as a
“clarifying modification” after the incident at the Dollar Tree, provides that Trimble
“must not obtain employment or volunteer where [he] would be supervising, working
with or associating with persons under the age of 18.” Trimble argues that these
conditions are unwarranted because his offense conduct involved viewing child
pornography, not sexual assault, and the government failed to offer empirical
evidence “that a person who has viewed child pornography is a risk to sexually
assault minors.” He further argues that these conditions impose too severe a
restriction on his ability to seek employment.

      The condition imposed as part of Trimble’s initial sentence explicitly permits
contact with a minor during employment so long as the probation officer grants prior
approval. We have previously affirmed conditions like this even where a defendant
was convicted of receiving child pornography and “had no prior history of sexually
abusing minors.” See United States v. Thompson, 653 F.3d 688, 692 (8th Cir. 2011).
We have explained that requiring prior approval from a probation officer “is a
reasonable means of ensuring that such contact remains appropriate.” Id. (quoting
United States v. Mickelson, 433 F.3d 1050, 1057 (8th Cir. 2006)). The district court
did not abuse its discretion by following that guidance.

      Similarly, we read the prohibition on supervising, working with, or associating
with persons under the age of 18 as being subject to the probation officer’s continuing
authority to permit Trimble to have contact with minors during employment.
The condition simply clarifies the extent to which non-incidental contact is prohibited

                                         -7-
in employment. It was imposed in response to a specific incident of unapproved
contact, and Trimble explicitly agreed to its imposition. We find no abuse of
discretion in declining to modify it.

      D. Employment at a Business That Sells Alcohol

        Finally, Trimble challenges the condition that he “must not patronize business
establishments where more than fifty percent of the revenue is derived from the sale
of alcoholic beverages.” The district court has interpreted this condition as
prohibiting Trimble from shopping or working at a business that derives a majority
of its revenue from the sale of alcohol. Trimble argued to the district court that, when
combined with the condition prohibiting him from seeking employment where he
might encounter minors, this condition places a greater restriction on his liberty than
is reasonably necessary. He explained that “[i]t is difficult to find employment where
one would not come into contact with persons under the age of 18, with the exception
of a bar.” He also emphasized that he has never been charged with an alcohol-related
offense and that alcohol was not involved in his offense conduct or his violation of
supervised release.

       We conclude that Trimble has not shown it was an abuse of discretion not to
modify this condition at this time. Trimble has no history of working in bars or
taverns, he apparently was able to secure employment despite this condition before
his supervised release was revoked, and he has not identified any particular
employment opportunity this condition has or will interfere with. We have rejected
similar challenges to this in the past, explaining that “[i]f upon release from federal
prison the defendant can only find employment which requires him to enter a bar,
tavern, or other place whose primary source of income is derived from the sale of
alcohol, the defendant may seek a modification of his release conditions from the
district court.” See United States v. Henkel, 358 F.3d 1013, 1015 (8th Cir. 2004).



                                          -8-
We follow that same course here. Trimble is not foreclosed from seeking to modify
this condition should a more concrete problem arise.

                                   III. Conclusion

      The district court’s judgment is affirmed.

KELLY, Circuit Judge, concurring.

       I join the court’s opinion in full. I write separately because I have concerns
about the district court’s rationale for refusing to modify the condition prohibiting
Trimble from employment at a business that derives most of its revenue from alcohol
sales.

       The district court declined to modify this condition for the following reasons:
(1) Trimble has consumed alcohol in the past; (2) another condition of supervised
release prohibits Trimble from using alcohol and/or other intoxicants during his
supervised release, and allowing Trimble to work at a business that derives most of
its revenue from alcohol sales “will increase the risk of violating this condition”;
(3) Trimble has a “long history of anger issues he struggles to control,” and if Trimble
consumes alcohol, “he will increase the risk of losing his temper and committing a
crime”; and (4) Trimble struggles with depression and consuming alcohol risks
“exacerbating his mental health issues.”

       I do not think that, on this record, the reasons given by the district court can
justify a categorical prohibition on working for a business that derives most of its
revenue from alcohol sales. Although Trimble has consumed alcohol in the past, the
undisputed record indicates that he “consumed alcohol socially a couple of times
every few years” but did not “drink[] alcohol to intoxication and last drank on
October 11, 2011.” We have previously held that this sort of light consumption of

                                          -9-
alcohol is insufficient to warrant a total prohibition on consuming alcohol and
entering bars. See United States v. Brown, 789 F.3d 932, 933–34 (8th Cir. 2015)
(per curiam); United States v. Woodall, 782 F.3d 383, 386–87 (8th Cir. 2015)
(per curiam); United States v. Walters, 643 F.3d 1077, 1080 (8th Cir. 2011).

        The district court also suggested that this condition is necessary to ensure that
Trimble does not violate the prohibition on consuming alcohol during his supervised
release. But Trimble does not challenge the condition prohibiting him from
consuming alcohol, and there is no evidence that he would consume alcohol—for the
first time in nearly a decade—if he obtained employment at a business that derives
most of its revenue from alcohol sales.

       Finally, the district court connected the condition to concerns about Trimble’s
anger and depression. We have not foreclosed the use of “judicial common sense”
to determine appropriate conditions of supervised release, but a district court may not
base conditions on “pure speculation or assumptions unrelated to the rehabilitative
process.” United States v. Forde, 664 F.3d 1219, 1223–24 (8th Cir. 2012)
(cleaned up). There is nothing in the record linking Trimble’s anger and depression
issues to alcohol, and I do not think it is appropriate to base this condition on
speculation about those conditions.

       In combination with the condition prohibiting Trimble from working at a
location where he may encounter minors, restricting him from working in bars or
taverns may severely limit his ability to find employment. Based on the evidence in
the record, I believe this has the potential to impose a greater deprivation of liberty
than is reasonably necessary. But because Trimble has not shown any concrete
problem at this time, I concur in the court’s opinion.
                        ______________________________




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