           Case: 16-14805   Date Filed: 06/23/2017   Page: 1 of 5


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-14805
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 0:12-cr-60028-JIC-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                 versus

ROBERT JACKSON,

                                                         Defendant-Appellant.

                       ________________________

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

                              (June 23, 2017)

Before TJOFLAT, MARCUS, and WILSON, Circuit Judges.

PER CURIAM:
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      Robert Jackson, proceeding pro se, appeals the district court’s denial of his

motion to modify several conditions of his supervised release pursuant to

18 U.S.C. § 3583(e)(2). On appeal, Jackson argues that the district court abused its

discretion in denying his motion to modify because it failed to provide adequate

reasoning for the denial, and because it failed to consider the appropriate factors

under 18 U.S.C. § 3553(a). Jackson also argues that several of the conditions he

sought to have modified or removed were substantively unreasonable or

unconstitutional and were levied in a procedurally unreasonable manner. Upon

review of the record and the parties’ briefs, we affirm.

                                         I.

      We have not yet addressed the standard of review for an appeal of the

district court’s order regarding a modification of supervised release, pursuant to

§ 3583(e)(2). But we review an analogous statute—the denial of a motion to

modify a condition of probation under 18 U.S.C. § 3563(c)—for abuse of

discretion. United States v. Serrapio, 754 F.3d 1312, 1318 (11th Cir. 2014).

Because modifications of supervised release are similar to modifications of

probation, we apply the same abuse of discretion standard here. “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.” United States v. Taylor, 338

F.3d 1280, 1283 (11th Cir. 2003) (per curiam) (internal quotation marks omitted).


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                                         II.

      Jackson first argues that the district court abused its discretion in denying his

motion to modify the conditions of his supervised release because it failed to

consider the relevant § 3553(a) factors and it failed to adequately explain the

denial. A district court may modify the conditions of a term of supervised release

after considering the factors set forth in § 3553(a). See 18 U.S.C. § 3583(e)(2). It

is sufficient if the record shows that the district court considered the § 3553(a)

factors, even if the court failed to explicitly mention them. See United States v.

Dorman, 488 F.3d 936, 944 (11th Cir. 2007) (holding that the district court

necessarily considered the § 3553(a) factors by virtue of considering the

defendant’s objections and motion, regardless of the district court’s failure to

explicitly articulate that it had considered the § 3553(a) factors).

      The district court did not abuse its discretion in denying Jackson’s motion to

modify the conditions of his supervised release. Though the district court’s short

order makes no reference to the § 3553(a) factors, it was not required to state that it

had explicitly considered them so long as the overall record reflected the court’s

consideration of the factors, which it did here. See Dorman, 488 F.3d at 944.

                                        III.

      Jackson also claims—for the first time on appeal—that the district court not

only imposed unconstitutional and substantively unreasonable supervised release


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conditions, but also that the district court imposed said conditions in a procedurally

unreasonable manner. We have not yet addressed whether a defendant may

substantively challenge the legality of the conditions of his supervised release

through a motion to modify under § 3583(e)(2). However, the Second, Fifth, and

Ninth Circuits have all held that § 3583(e)(2) may not be used in that way. See

United States v. Lussier, 104 F.3d 32, 34 (2d Cir. 1997) (holding that the plain

language of § 3583(e)(2) indicates that illegality is not a proper ground for

modification of a condition of supervised release); United States v. Hatten, 167

F.3d 884, 886 (5th Cir. 1999) (holding that the district court did not have

jurisdiction to modify a condition of supervised release on illegality grounds);

United States v. Gross, 307 F.3d 1043, 1044 (9th Cir. 2002) (holding that illegality

was not a proper ground for modification of a supervised release term). 1

       Because Jackson failed to challenge the legality of the conditions below, his

argument is subject to plain error review, a standard that he cannot overcome. See

United States v. Carpenter, 803 F.3d 1224, 1237 (11th Cir. 2015). Regardless of

whether we have jurisdiction to entertain Jackson’s arguments regarding the

reasonableness and legality of the conditions of his supervised release, in the form

of a motion to modify under § 3583(e)(2), the district court did not plainly err

1
 As the Ninth Circuit recognized in Gross, Congress intentionally limited the manner in which a
defendant may challenge the legality of a supervised release condition to: (1) direct appeal; (2) §
2255 relief; and (3) a motion under Fed. R. Crim. P. 35(a) filed within 14 days of the district
court’s decision. Gross, 307 F.3d at 1044.
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because there is no precedent substantiating his arguments. See United States v.

Hoffman, 710 F.3d 1228, 1232 (11th Cir. 2013) (per curiam) (“An error is not plain

unless it is contrary to . . . on-point precedent”). Accordingly, we affirm the

district court’s denial of Jackson’s motion to modify the conditions of his

supervised release.

AFFIRMED.




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