                                                                       [PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                FILED
                                                        U.S. COURT OF APPEALS
                                No. 09-16486              ELEVENTH CIRCUIT
                                                              JULY 27, 2010
                            Non-Argument Calendar
                                                               JOHN LEY
                          ________________________
                                                                CLERK

                       D. C. Docket No. 05-20739-CR-JAL

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

JOSEPH TOME,

                                                          Defendant-Appellant.


                          ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       _________________________

                                (July 27, 2010)

Before HULL, PRYOR and MARTIN, Circuit Judges.

HULL, Circuit Judge:

     Because Defendant Joseph Tome committed 13 violations of his supervised
release, the district court revoked the 3-year supervised release on Tome’s child

pornography conviction and sentenced Tome to 24 months’ imprisonment,

followed by one year of supervised release with additional conditions. Tome

appeals his 24-month sentence and the one-year Internet ban that is a condition of

his current one-year supervised release to follow his 24-month sentence. After

review, we affirm.

                                I. BACKGROUND

A.    Underlying Child Pornography Conviction

      In December 2005, Tome pled guilty to one count of possessing child

pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). The indictment charged

that Tome knowingly possessed computer files stored on a computer hard drive

that contained images of child pornography. Tome’s plea was based on a factual

proffer in which he admitted that he possessed several computer disks containing

over 100,000 images of child pornography, including over 1,000 images of known

child victims; that all of these images were downloaded from the Internet; that

many of these images were depictions of prepubescent minors or minors under the

age of 12; and that more than 10 of the images depicted sexual exploitation of

minors. In his factual proffer, Tome stated he maintained an Internet service

account in his own name through the Internet service provider Earthlink. Tome



                                          2
stated he viewed and downloaded child pornography from a website called

eCircles.com, using as his e-mail address jabezstone90@hotmail.com, and

identifying himself as “Jabez Stone.” Tome admitted he understood the difference

between child and adult pornography, maintained an “extensive” collection of both

adult and child pornography downloaded to his computer from the Internet, and

owned about 10 videos of child pornography as well as several comic books and

stories related to sex with children. In July 2006, the district court sentenced Tome

on the one count of possession of child pornography to 27 months’ imprisonment,

followed by 3 years’ supervised release. Because the district court gave Tome

credit for time served, Tome’s 3-year term of supervised release began on

September 14, 2007.

      Tome’s initial supervised release was subject to several special conditions,

which required that he, inter alia, (1) submit a truthful and complete written report

to his probation officer each month, (2) answer truthfully all inquiries by his

probation officer, (3) not associate with any persons convicted of a felony without

permission from his probation officer, (4) have no personal, mail, telephone, or

computer contact with minors, (5) keep a daily log of all addresses or sites

accessed on any personal computer, and (6) not commit another federal, state, or

local crime. Tome’s initial supervised release allowed him to use the Internet for



                                           3
authorized employment purposes, but he had to maintain for his probation officer a

daily log of all other Internet use, including use for personal reasons.

B.    Supervised Release Violations

      On August 5, 2009 (during his second year of supervised release), Tome was

arrested for violating the conditions of his supervised release. At his revocation

hearing, Tome pled guilty to these multiple supervised release violations:

(1) importing or transporting obscene matters, in violation of 18 U.S.C. § 1462(a),

based on Tome’s sending to an inmate a graphic letter (which was introduced at

sentencing and which described graphically Tome having sex with at least seven

children); (2) failing to register as a sex offender in violation of Florida law;

(3) associating with eight convicted felons, six of whom were convicted of sex-

related crimes involving minors or child pornography, when Tome sent e-mails

and letters to them; (4) failing to submit a truthful and complete written monthly

report, when Tome reported he was not having contact with people who had

criminal records; (5) failing to answer truthfully all inquiries by his probation

officer, when Tome stated he used the Internet and computers only for employment

purposes but in fact had accessed the Internet and several computers for personal

reasons; and (6) failing to maintain a daily log of Internet addresses accessed via

any personal computer, when he used both his employment computer and his



                                            4
friends’ computers for personal use, as evidenced by his admission and copies of e-

mail correspondence between him and a convicted felon.1 The district court

directed both parties to prepare sentencing memoranda as to the applicable law and

potential sentences for Tome.

C.     Sentencing

       In his sentencing memorandum, Tome stated that since his underlying

offense was a Class D felony, his statutory maximum term of imprisonment (for

his supervised release violations) was two years, pursuant to 18 U.S.C.

§ 3583(e)(3). Tome stated that two of his supervised release violations were Grade

B violations, the others being Grade C, pursuant to U.S.S.G. § 7B1.1. With a

criminal history category of I, Tome argued his advisory guidelines range was 4 to

10 months’ imprisonment, pursuant to U.S.S.G. § 7B1.4, and requested the low-

end guidelines sentence of 4 months’ imprisonment. Tome argued his supervised

release violations “stem[med] from a central problem: communications with

inmates [Tome] met while incarcerated.” Tome stated the majority of his contact

with the convicted felons was through letters, but admitted that one of the letters

included a “graphic, but fictional account of sexual activity” and that he had

communicated with one of the convicted felons over e-mail. It is undisputed that


       1
        The arrest warrant also alleged Tome violated the terms of his supervised release by
having unsupervised contact with minors, but the government dismissed that charge.

                                                5
six of the eight convicted felons were themselves sex offenders.

      The government’s sentencing memorandum agreed with Tome’s 4- to 10-

month advisory guidelines range calculation and, in exchange for Tome’s guilty

plea, agreed to recommend that Tome receive the low-end advisory guidelines

sentence of 4 months. However, the government pointed out that Tome could be

criminally prosecuted for conduct to which he admitted in pleading guilty to the

supervised release violations, including (1) Tome’s sending another sex-offender

felon a letter describing in a graphic manner Tome’s having sex with at least 7

children, for which Tome could be charged with importation and transportation of

obscene matters and providing contraband to a sex-offender inmate, in violation of

18 U.S.C. §§ 1462(a) and 1791(a)(1); (2) his denying to his probation officer that

he communicated with sex offenders when he had in fact communicated by e-mail

with a sex offender inmate, for which Tome could be charged with making false

statements to a federal agent, in violation of 18 U.S.C. § 1001(a)(2); and

(3) Tome’s failing to register his seven e-mail addresses he used to contact sexual

predators and other inmates.

      At sentencing, the district court considered Tome’s conviction for

possession of child pornography and that, prior to that conviction, he also had been

charged with indecent exposure, for which adjudication was withheld and where a



                                          6
minor victim accused Tome of exposing his penis to her on five separate occasions.

The district court also considered that Tome admitted to 13 violations of his

supervised release on his underlying Internet-related child pornography offense,

including (1) inappropriate contact with sex offender inmates (using the Internet);

(2) sending a letter to a sex offender inmate detailing Tome’s having sex with at

least seven minors; (3) failing to register at least six of his e-mail addresses;

(4) using these multiple e-mail addresses to communicate with sex offender

inmates over the Internet and meet women; and (5) accessing the Internet using his

home computer, as well as that of his employer, his wife, and his landlord.

       The probation officer noted Tome’s participation in his sex offender

treatment sessions was “minimal and marginal” and that he was “lacking in

motivation, defensive and arrogant.” The district court stated a sentence above the

advisory guidelines range was appropriate so that Tome could participate in a 12-

to 18-month intensive residential sex offender treatment program while

incarcerated.

       The district court sentenced Tome to 24 months’ imprisonment, followed by

one year of supervised release, during which year Tome would be prohibited from,

inter alia, accessing the Internet. The court stated that its decision to restrict

Tome’s Internet access was based on his admissions of inappropriate use of the



                                            7
Internet while already on supervised release (for an underlying Internet-related

child pornography conviction), namely, his using the Internet to communicate with

sex-offender inmates, to meet women, and for personal reasons. Tome objected

that this sentence was unreasonable and that the conditions of his new, one-year

supervised release were more restrictive than necessary and in violation of his

constitutional rights.

                                      II. DISCUSSION

A.     Internet Ban as Condition of Supervised Release

       Tome argues the condition of his one-year supervised release – imposing a

one-year ban on all access to the Internet – is unreasonably broad, unduly

restrictive, and violates his constitutional rights.2

       A district court may impose any condition of supervised release it deems

appropriate so long as it comports with the factors enumerated in 18 U.S.C.


       2
          We review the imposition of special conditions of supervised release for abuse of
discretion. United States v. Moran, 573 F.3d 1132, 1137 (11th Cir. 2009), cert. denied, 130 S.
Ct. 1879 (2010). “We will reverse only if we have a definite and firm conviction that the
[district] court committed a clear error of judgment in the conclusion it reached.” Id. (quotation
marks omitted).
         The government argues that Tome failed to raise this claim in the district court and thus
his challenge to the Internet ban as a condition of his supervised release is “arguably subject to
plain error review.” The sentencing transcript shows that Tome did generally object to “the
additional conditions on his supervised release as more restrictive than necessary and possibly
violations of his constitutional rights.” However, Tome did not refer specifically to the Internet
ban. Given that Tome has shown no abuse of discretion in any event, we need not determine
whether plain error review applies.


                                                 8
§ 3553(a). 18 U.S.C. § 3583(d); United States v. Zinn, 321 F.3d 1084, 1089 (11th

Cir. 2003). The § 3553(a) factors include: (1) the nature and circumstances of the

offense and the history and characteristics of the defendant; (2) the need to reflect

the seriousness of the offense, to promote respect for the law, and to provide just

punishment for the offense; (3) the need for deterrence; (4) the need to protect the

public; (5) the need to provide the defendant with needed educational or vocational

training or medical care; (6) the kinds of sentences available; (7) the Sentencing

Guidelines range; (8) pertinent policy statements of the Sentencing Commission;

(9) the need to avoid unwanted sentencing disparities; and (10) the need to provide

restitution to victims. 18 U.S.C. § 3553(a).

      A district court may impose a supervised release condition that: (1) is

“reasonably related” to the § 3553(a) factors, (2) involves “no greater deprivation

of liberty than is reasonably necessary for the purposes set forth” in § 3553(a), and

(3) is “consistent with any pertinent policy statements issued by the Sentencing

Commission.” Zinn, 321 F.3d at 1084 (quoting U.S.S.G. § 5D1.3(b)). It is not

necessary for a special condition to be supported by each § 3553(a) factor; rather,

each factor is an independent consideration to be weighed. United States v. Taylor,

338 F.3d 1280, 1283 (11th Cir. 2003). “‘Moreover, while the Sentencing

Guidelines recognize that a condition of supervised release should not unduly



                                           9
restrict a defendant’s liberty, a condition is not invalid simply because it affects a

probationer’s ability to exercise constitutionally protected rights.’” Id. (quoting

United States v. Bull, 214 F.3d 1275, 1278 (11th Cir. 2000)).

      Given that Tome violated his first supervised release by having

inappropriate Internet contact with other convicted sex offenders, that his

underlying conviction involved child pornography downloaded from the Internet to

his personal computer, and his prior criminal history, Tome has not shown the

district court abused its discretion in imposing a one-year Internet ban as a

condition of Tome’s second supervised release. Specifically, Tome violated the

terms of his prior supervised release by using the Internet on multiple computers to

communicate with sex offenders; failing to register at least six e-mail addresses,

which he then used to communicate with sex-offender inmates; and sending a

graphic letter to one inmate describing Tome’s having sex with at least seven

children – conduct related to the very offense for which Tome was originally

convicted. Tome’s underlying conviction for possession of child pornography

also concerned child images obtained from the Internet, and his prior criminal

history includes his exposing his penis to a minor on five occasions. Child

pornography is freely available on the Internet, and its usage is hard to monitor.

      On these facts, a year-long Internet ban is reasonably related to multiple



                                           10
§ 3553(a) factors, including the nature of Tome’s offenses and supervised release

violations, the need to deter Tome from a second round of supervised release

violations and from downloading and distributing child pornography, to reflect the

seriousness of his 13 supervised release violations, to help Tome with his

rehabilitative treatment, to provide just punishment, and, in particular, to protect

both the child victims used in Internet pornography and children who use the

Internet. See United States v. Moran, 573 F.3d 1132, 1141 (11th Cir. 2009)

(“Although the internet provides valuable resources for information and

communication, it also serves as a dangerous forum in which an offender can

freely access child pornography and communicate with potential victims.”), cert.

denied, 130 S. Ct. 1879 (2010); Zinn, 321 F.3d at 1092 (noting the “strong link

between child pornography and the Internet, and the need to protect the public,

particularly children, from sex offenders”). Indeed, courts have upheld similar sex-

offender supervised release conditions of significantly longer duration. See

Moran, 573 F.3d at 1140-41 (upholding 3-year term of supervised release requiring

sex-offender defendant to obtain probation officer’s permission to access Internet);

Zinn, 321 F.3d at 1086-87, 1093 (upholding 3-year Internet ban, with exception

upon probation officer approval, where defendant was convicted of possession of

child pornography); United States v. Johnson, 446 F.3d 272, 274, 283 (2d Cir.



                                           11
2006) (upholding unconditional 3-year Internet ban for sex offender); United

States v. Paul, 274 F.3d 155, 160, 170 (5th Cir. 2001) (upholding unconditional 3-

year term of supervised release prohibiting defendant from using “computers, the

Internet, . . . or any item capable of producing a visual image” where defendant

was convicted of possessing child pornography); see also Taylor, 338 F.3d at 1286

(upholding 3-year term of supervised release prohibiting defendant from “entering

into any area where children frequently congregate” where defendant was

convicted of using the Internet to encourage persons to engage in criminal sexual

activity with a minor).

      We also reject Tome’s contention that his Internet ban is a greater

deprivation of liberty than reasonably necessary. Tome was convicted of child sex

offenses involving the Internet and then violated his initial supervised release

conditions by using the Internet to contact other sex offenders. Tome’s case

involved his first being put on supervised release that allowed him limited access

to the Internet for employment-related reasons and required him to disclose to his

probation officer all non-employment-related Internet use. Tome promptly

violated those conditions multiple times. He not only failed to disclose that he

accessed the Internet for personal reasons, but also used the Internet to contact by

e-mail six sex offenders, several of whom also had child pornography convictions.



                                          12
Tome has shown his unwillingness to conform his behavior to more-lenient

restrictions.

       Although Tome argues the year-long Internet ban would prevent him from

submitting on-line job applications and performing jobs that require use of the

Internet, Tome does not state which jobs he might be qualified for or whether any

of those potential jobs would require him to use the Internet.3 Tome has not shown

a day-to-day vocational need for the Internet. Nor does Tome articulate how his

expressive activities will be adversely affected by the Internet ban.

       We acknowledge that Tome relies on cases from other circuits concluding in

certain circumstances that an Internet access ban during a term of supervised

release is impermissible. But these cases are materially different because they

involve a lengthier Internet ban, do not specify the duration of the ban, involve

criminal conduct that was unrelated to the Internet, or do not involve a prior

supervised release violation. See, e.g., United States v. Heckman, 592 F.3d 400,

403, 407 (3d Cir. 2010) (lifetime Internet ban and no prior supervised release

violation); United States v. Holm, 326 F.3d 872, 874, 877-78 (7th Cir. 2003)

(length of supervised release not specified, no prior supervised release violation,



       3
         Tome’s presentence investigation report stated, as to Tome’s occupation, that he
“worked odd jobs,” such as “acting as a translator, typing documents and assisting people with
filling out immigration documents.”

                                               13
and defendant had a 30-year history of working in computer telecommunications

and intended to be so employed during his supervised release); United States v.

Sofsky, 287 F.3d 122, 124 (2d Cir. 2002) (3-year Internet ban and no prior

supervised release violation); United States v. Peterson, 248 F.3d 79, 81 (2d Cir.

2001) (5-year Internet ban, no prior supervised release violation, and defendant’s

underlying conviction was for bank larceny and did not involve computers or the

Internet); United States v. White, 244 F.3d 1199, 1201 (10th Cir. 2001) (2-year

Internet ban and violation of supervised release was only for drinking alcohol); see

also United States v. Miller, 594 F.3d 172, 175, 185-86 (3d Cir. 2010) (lifetime

Internet ban and no prior supervised release violation).

      Also, some cases have upheld even lifetime Internet bans where the

supervised release prohibited the defendant’s access to the Internet without the

probation officer’s prior approval. See United States v. Stults, 575 F.3d 834, 837,

855-56 (8th Cir. 2009) (upholding lifetime ban prohibiting defendant from

accessing the Internet, except for employment purposes, without prior approval of

probation officer); United States v. Boston, 494 F.3d 660, 663, 664 (8th Cir. 2007)

(upholding lifetime ban permitting defendant to obtain computer access only with

prior written approval of probation officer); United States v. Alvarez, 478 F.3d

864, 865 (8th Cir. 2007) (upholding lifetime ban prohibiting all Internet access at



                                          14
home and allowing access in other locations only with prior approval of probation

officer). And this district court’s one-year ban is far shorter than the multi-year or

lifetime bans in the cases cited by Tome.

      For all of these reasons, and under the particular circumstances of this case,

Tome has not shown the district court abused its discretion in imposing an Internet

ban as a condition of his one-year supervised release.

B.    Imprisonment Sentence

      Tome also argues his 24-month imprisonment sentence is unreasonable. We

review the reasonableness of a sentence for abuse of discretion using a two-step

process. United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008). We look

first at whether the district court committed any significant procedural error and

then at whether the sentence is substantively reasonable under the totality of the

circumstances. Id. The party challenging the sentence bears the burden to show it

is unreasonable in light of the record and the § 3553(a) factors. United States v.

Thomas, 446 F.3d 1348, 1351 (11th Cir. 2006).

      “If, after correctly calculating the guidelines range, a district court decides

that a sentence outside that range is appropriate, it must ‘consider the extent of the

deviation and ensure that the justification is sufficiently compelling to support the

degree of the variance.’” United States v. Williams, 526 F.3d 1312, 1322 (11th



                                            15
Cir. 2008) (quoting Gall v. United States, 552 U.S. 38, 50, 128 S. Ct. 586, 597

(2007)). Likewise, although “[s]entences outside the guidelines are not presumed

to be unreasonable, . . . we may take the extent of any variance into our calculus.”

United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir.), cert. denied, 129 S. Ct.

2847 (2009). However, we “must give due deference to the district court’s

decision that the § 3553(a) factors, on a whole, justify the extent of the variance.”

Gall, 552 U.S. at 51, 128 S. Ct. at 597.

      Here, Tome has not met his burden to show his 24-month sentence was

procedurally or substantively unreasonable. Procedurally, Tome does not dispute

the district court’s calculation of his advisory guidelines range of 4 to 10 months.

The record belies Tome’s claims that the court failed to provide an adequate

explanation of its decision to impose an upward variance. To the contrary, the

district court explained that it was imposing an upward variance based on Tome’s

admission to 13 violations of his supervised release and that the sentence would

provide time for Tome to complete a 12- to 18-month sex offender treatment

program while incarcerated.

      Nor has Tome shown that his 24-month sentence is substantively

unreasonable. Tome’s supervised release violations involve conduct related to his

underlying conviction for possession of child pornography; he has a withheld



                                           16
adjudication on a charge of showing his penis to a minor on several occasions; and

he was “lacking in motivation, defensive and arrogant” during his sex offender

treatment sessions, in which his participation was “minimal and marginal.” And

the sentence affords Tome time to participate in a 12- to 18-month sex offender

treatment program.

      Based on these facts, the district court concluded an upward variance was

“appropriate, reasonable and just.” The district court’s stated concerns over

Tome’s rehabilitation and criminal history were sufficiently compelling to support

the degree of the variance. See, e.g., Shaw, 560 F.3d at 1240-41 (affirming an

83-month upward variance based in large part on district court’s concern over

defendant’s long criminal history that was undeterred by shorter sentences). Under

the totality of the circumstances, we cannot say the district court’s decision to

impose a 24-month sentence was an abuse of discretion.

      Tome also argues that the sentence was unreasonable because, in imposing

an upward variance, the district court took into account his 1991 withheld

adjudication and his admission to sending a sex-offender inmate an obscene letter

describing Tome’s having sex with at least seven children, in violation of 18

U.S.C. § 1462(a). As to the 1991 withheld adjudication, the district court was free

to consider any information relevant to Tome’s “background, character, and



                                           17
conduct” in imposing an upward variance. 18 U.S.C. § 3661; see also United

States v. Faust, 456 F.3d 1342, 1348 (11th Cir. 2006) (concluding sentencing court

could consider facts underlying acquitted conduct). As to the letter, because Tome

unconditionally admitted and pled guilty to sending the letter in violation of 18

U.S.C. § 1462(a), he waived all challenges to the factual basis underlying that

violation and all other non-jurisdictional challenges to it. See United States v.

Betancourth, 554 F.3d 1329, 1332 (11th Cir. 2009); United States v. Fairchild, 803

F.2d 1121, 1124 (11th Cir. 1986). Thus, Tome has not shown the district court

abused its discretion in considering his 1991 withheld adjudication or his sending

the letter.4

       AFFIRMED.




       4
       Tome’s final argument that the district court improperly accorded weight to certain
§ 3553(a) factors also fails.

                                              18
