United States v. Matthew Tassin ( 2022 )

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12017
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MATTHEW TASSIN,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:19-cr-80064-RAR-1
____________________
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2 Opinion of the Court 21-12017
Before ROSENBAUM, GRANT, and HULL, Circuit Judges.
PER CURIAM:
After pleading guilty, Matthew Tassin appeals his two
convictions and sentences for distribution and possession of child
pornography. On appeal, Tassin argues that the district court
(1) abused its discretion by not sua sponte inquiring into his
competence; (2) erred by determining that it lacked authority to
consider new sentencing objections when the district court
resentenced him; (3) plainly erred by imposing a procedurally
unreasonable sentence because it applied two unnecessary
enhancements; (4) abused its discretion by imposing a
substantively unreasonable sentence; and (5) plainly erred by
applying certain special conditions of supervised release. After
review, we affirm the district court’s rulings.
I. BACKGROUND
A. Offense Conduct
In January 2019, an undercover agent working with the FBI
Child Exploitation Task Force was on “KiK,” an online social
networking chat application, in a chatroom by and for people who
wanted to trade and access child pornography. The agent
identified a user, “Mike T,” who was later revealed to be Tassin.
The agent observed another KiK user tell Tassin that he would be
removed if he did not post “material.” Because Tassin did not post
anything, he was subsequently removed from the room. When
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Tassin re-entered the room, he posted a hyperlink to a separate
website, which had a folder titled “Cindy” that included six
subfolders, each containing images and videos of child
pornography.
Through KiK and Comcast, the FBI located Tassin’s
residence in Palm Beach Gardens, Florida, and agents executed a
search warrant in April 2019. In an interview with law
enforcement, Tassin admitted (1) he shared and received child
pornography; (2) he generally searched for girls 12 years old and
younger; (3) he would use those images to trade with other KiK
users in the group; (4) he was addicted to child pornography and
beer; and (5) he would watch child pornography and communicate
with other KiK users about child pornography in his “beer room”
or “man cave,” a room in his house with a television and thousands
of empty beer cans piled several feet high.
An examination of Tassin’s phone identified hundreds of
communications with other KiK users as well as child pornography
images and videos sent and received in a group called “Tween
Share Safe Room.” Specifically, Tassin distributed three videos of
a 12- to 13-year-old girl being sexually abused by an adult male. His
phone contained 123 child pornography videos, 21 child
pornography photographs, 1 video containing child pornography
bondage, and 2 videos of child pornography where the victims
were under the age of 5. Two of the victims in the videos and
photographs on Tassin’s phone were identified by the National
Center for Missing and Exploited Children. Further, Tassin’s
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4 Opinion of the Court 21-12017
custom computer tower discovered at his residence also contained
child pornography.
B. Indictment & Plea
A grand jury charged Tassin with (1) 2 counts of distribution
of child pornography, in violation of 18 U.S.C. § 2252(a)(1) and
(b)(1) (Counts 1 and 2); and (2) 1 count of possession of material
involving the sexual exploitation of minors under 12 years old, in
violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2) (Count 3).
Pursuant to a written plea agreement, Tassin pled guilty to Counts
2 and 3, in exchange for the dismissal of Count 1.
During the plea colloquy and while Tassin was under oath,
Tassin confirmed that he (1) had never been treated for any mental
illness or alcohol addiction; (2) was not under the influence of any
drugs or alcohol; (3) had not ingested any drugs or alcohol in the
last 48 hours; and (4) was not currently under the care or treatment
of any physician, psychologist, or psychiatrist. The district court
then inquired into Tassin’s ability to understand the plea colloquy:
THE COURT: And do you believe that you have a
physical or mental condition or illness which would
prevent you from understanding what is happening
here today?
THE DEFENDANT: No, sir.
THE COURT: Do you understand everything I’m
saying and everything that’s going on here today?
THE DEFENDANT: Yes, sir.
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THE COURT: Does defense counsel agree to the
competency of Mr. Tassin to enter this plea?
[DEFENSE COUNSEL]: Yes, Your Honor, I so agree.
The district court also confirmed that Tassin had reviewed and
discussed the indictment with his attorney and that Tassin was fully
satisfied with his attorney’s representation.
The government read the elements of Counts 2 and 3, and
defense counsel agreed that the government correctly stated the
elements of both charges. Tassin confirmed that he and his counsel
went through the charges, the elements of those charges, and the
possible penalties and sentencing guidelines—including the five-
year mandatory minimum sentence for Count 2.
The district court went over the written plea agreement
with Tassin, who confirmed that he understood it in its entirety
and had discussed it with his attorney. Tassin also stated that he
understood the statutory penalties and maximum prison terms for
each count. The district court also confirmed that Tassin had
signed and reviewed the factual proffer, which Tassin agreed was
an adequate recitation of the facts.
Having concluded that Tassin was fully competent and
capable of entering into the plea agreement and aware of the
nature of the charges and consequences of his plea, the district
court accepted Tassin’s guilty plea to Counts 2 and 3 of the
indictment.
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C. Presentence Investigation Report
Tassin’s presentence investigation report (“PSI”) grouped
Counts 2 and 3. Tassin’s PSI calculated a total offense level of 37,
using: (1) a base level offense of 22 under U.S.S.G. § 2G2.2(a)(2)
because the offense involved the distribution of child pornography;
(2) a two-level increase under § 2G2.2(b)(2) because the material
involved a minor under 12 years old; (3) a five-level increase under
§ 2G2.2(b)(3)(B) because Tassin distributed child pornography in
exchange for valuable consideration—i.e., access to certain
chatrooms and other child pornography; (4) a four-level increase
under § 2G2.2(b)(4)(A) because the offense involved material that
portrayed sadistic or masochistic conduct; (5) a two-level increase
under § 2G2.2(b)(6) because the offense involved the use of a
computer for the possession, transmission, receipt, or distribution
of the material; (6) a five-level increase under § 2G2.2(b)(7)(D)
because the offense involved 600 or more images; and (7) a three-
level decrease under § 3E1.1(a)–(b) for acceptance of responsibility.
Because Tassin had no criminal history, he had a criminal
history category of I. Based on a total offense level of 37 and a
criminal history category of I, the advisory guidelines
imprisonment range was 210 to 262 months. For Count 2, the
statutory range of imprisonment was 5 to 20 years, and for Count
3, the statutory maximum term of imprisonment was 20 years.
The statutory requirements and guidelines range for supervised
release was five years to life for both counts.
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The PSI also recommended special conditions for Tassin’s
supervision. In relevant part, the PSI recommended that Tassin
(1) submit to periodic unannounced examinations of his computer
equipment; (2) be prohibited from possessing or using any data
encryption technique or program; (3) be prohibited from
possessing or using a computer that contained an internal, external,
or wireless modem without court approval; (4) allow his computer
related restrictions to be disclosed to any employer or potential
employer; and (5) be prohibited from possessing or exchanging any
visual depictions of minors or adults engaged in sexually explicit
conduct.
The PSI also noted that Tassin had reported that he was
healthy, had no history of mental or emotional problems, and was
not taking any prescription medication. The PSI reported that
Tassin (1) began drinking at the age of 16; (2) was drinking at least
a 12 pack of beer every day for the past 5 years; and (3) had no
history of prior substance abuse treatment but was interested in
treatment while incarcerated.
Tassin filed no objections to the PSI. Rather, Tassin filed a
written motion for a downward departure in the offense level
calculation on the basis that the two-level enhancement for his
offenses involving the use of a computer was cumulative and
unnecessary because possessing and distributing child
pornography cannot be accomplished without a computer.
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D. Sentencing
At sentencing, the district court noted and both parties
confirmed that there were no objections to the advisory guidelines
range calculations of 210 to 262 months’ imprisonment. The
district court adopted the PSI “without objections.”
As to Tassin’s downward departure motion, the district
court acknowledged that the vast majority of these child
pornography offenses are committed by computer but denied the
motion because the offense could be committed without the use of
a computer.
Tassin also orally requested a downward variance because
he had no criminal history, his family supported him, and he
cooperated with the government. Moreover, Tassin noted that he
would be amenable to mental health counseling. The government
responded that its recommendation was on the low end of the
guidelines followed by at least 20 years of supervised release.
Turning to the § 3553(a) factors, the government pointed out that
Tassin had well over 100 photos and videos of child pornography,
and he traded those images and videos like baseball trading cards.
Tassin then addressed the district court and apologized to
the court, the government, and his family. The district court
acknowledged that Tassin consistently had shown remorse, had no
criminal history, and had the decency to bring in half of the
restitution payments owed to the two identified victims.
Ultimately the district court, however, found no variance was
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warranted because (1) Tassin preyed on children; (2) Tassin had
123 child pornography videos, including bondage and victims
under the age of 5; and (3) two of the victims were identified by the
National Center for Missing and Exploited Children.
The district court sentenced Tassin to 240 months’
imprisonment as to Counts 2 and 3, to be served concurrently, and
15 years of supervised release following his imprisonment term. As
to the conditions of his supervised release, the district court, in
relevant part, ordered that Tassin be subject to certain special
conditions, including permissible computer examinations,
employer computer restriction disclosures, data encryption
restrictions, computer modem restrictions, and a prohibition on
the possession of materials that depict minors or adults engaged in
sexually explicit conduct. Tassin did not object to the sentence, but
successfully requested that he be ordered to attend a 500-hour drug
class because of his alcohol abuse.
E. 28 U.S.C. § 2255 Motion
Just under a month after sentencing, Tassin filed a 28 U.S.C.
§ 2255 motion to vacate, set aside, or correct his sentence, alleging,
inter alia, his counsel failed to file a notice of appeal despite Tassin’s
instructions to do so. The district court granted Tassin’s § 2255
motion1 so he could pursue an out-of-time appeal pursuant to
1 The district court dismissed the remaining claims raised in the § 2255 motion
without prejudice and denied as moot any pending motions.
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United States v. Phillips, 225 F.3d 1198 (11th Cir. 2000), appointed
new counsel, and scheduled a resentencing hearing.
F. Objections to the PSI Before Resentencing
Prior to resentencing, Tassin filed three objections to the
PSI. At the outset, Tassin noted that under Phillips, when the
remedy is an out-of-time appeal, the Court should vacate the
judgment, impose the same sentence, and advise the defendant of
his rights to appeal and the time limit for doing so. See Phillips, 225
F.3d at 1201. Nonetheless, Tassin asked the district court to
consider new objections.
First, Tassin objected to the application of the five-level
increase under U.S.S.G. § 2G2.2(b)(3)(B) for distributing child
pornography in exchange for valuable consideration other than
pecuniary gain. Specifically, he argued that posting a hyperlink did
not constitute distribution for valuable consideration because a
hyperlink was not child pornography, and he did not receive child
pornography from the chatroom.
Second, Tassin objected to the four-level increase under
U.S.S.G. § 2G2.4(b)(4)(A) for material portraying sadistic or
masochistic conduct, contending only that the government never
proved any facts that would support the increase. Third, he
objected to certain special conditions of his supervised release as
overbroad, namely the prohibition from possessing or using any
data encryption technique or program, the employer disclosure
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requirement, and the prohibition on possession of material that
depicts adults engaged in sexually explicit conduct.
The government responded that Tassin was prohibited from
filing new objections to the PSI under Phillips because the
resentencing was not an opportunity to litigate issues, but to allow
the opportunity to appeal his original judgment.
G. Resentencing
At resentencing, the district court noted that it was holding
the hearing pursuant to Phillips, which meant that the same
sentence would be reimposed, and the hearing would be
“somewhat of a mechanical exercise” without “a true full review
of the PSI.”
The district court noted that Tassin had filed new objections
to the PSI, but Tassin conceded that he was prohibited from doing
so under Eleventh Circuit precedent. Tassin thus challenged this
Court’s precedent to preserve the issue. The district court stated
that it was preserving the record on those objections and noted that
Tassin had also raised ineffective assistance of counsel issues in his
§ 2255 motion beyond the failure to file an appeal. Because a
resentencing hearing under Phillips was not a resentencing hearing
such that Tassin could raise new arguments, the district court
found it lacked authority to rule on his objections and thus denied
them.
In the alternative and “in the abundance of caution,” the
district court determined that it “would deny these objections on
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merit” if Tassin were permitted to raise them. The district court
found that the underlying facts supported: (1) a five-level increase
for distributing child pornography in exchange for valuable
consideration; and (2) a four-level increase for portraying
masochistic or sadistic conduct.
As to the special conditions of Tassin’s supervised release,
the district court stated that it would not change any of them but
noted that Tassin was free to raise his objections once he was on
supervised release. The district court found that the special
conditions were “absolutely appropriate,” and some conditions
were even required by statute.
The district court advised Tassin that he could challenge his
counsel’s failure to raise the three objections at his original
sentencing in a § 2255 motion. Tassin then confirmed that he
understood that the district court was “restarting the clock” but
could not “redo the whole thing.” Tassin was provided an
opportunity to allocute, and the district court reiterated that
Tassin’s guidelines range was 210 to 262 months’ imprisonment.
After considering the parties’ statements, the PSI, and the 18 U.S.C.
§ 3553(a) factors, the district court imposed the same sentence—
240 months’ imprisonment for Counts 2 and 3 to run concurrently
and 15 years of supervised release with the same special conditions.
Tassin restated his objections to the five- and four-level
enhancements and certain conditions of his supervised release. He
now appeals.
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II. DISCUSSION
On appeal, Tassin raises five issues that we address in turn.
A. Competence
Tassin argues the district court abused its discretion by not
sua sponte inquiring into his competence.
To enter a guilty plea or proceed to trial, the defendant must
“possess the capacity to understand the nature and object of the
proceedings against him, to consult with counsel, and to assist in
preparing his defense.” United States v. Wingo, 789 F.3d 1226,
1234–35 (11th Cir. 2015) (quotation marks omitted). 2 The district
court has an obligation to sua sponte hold a hearing if it has
reasonable cause to believe that a defendant may be incompetent.
Id. at 1236. Reasonable cause is established where the district court
has a bona fide doubt about the defendant’s competence. Id.This Court has identified three factors to determine whether
there is a bona fide doubt about a defendant’s competence:
“(1) evidence of the defendant’s irrational behavior; (2) the
defendant’s demeanor at trial [or at the plea colloquy]; and (3) prior
medical opinion regarding the defendant’s competence to stand
trial [or enter a plea].” Id. (quotation marks omitted). A court must
2 We review a district court’s failure to
sua sponte order a hearing on the de-
fendant’s competence for abuse of discretion. Wingo, 789 F.3d at 1236. We
must affirm unless the district court made a clear error of judgment or applied
the wrong legal standard. United States v. Lyons, 403 F.3d 1248, 1255 (11th
Cir. 2005).
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consider the aggregate of all three prongs, not each prong in a
vacuum. Id. However, evidence under a single prong may be
sufficient to establish a bona fide doubt about the defendant’s
competence. Id.Here, the district court did not abuse its discretion in not sua
sponte ordering a competency hearing because it lacked reasonable
cause to believe that Tassin may have been incompetent. At the
plea colloquy, there was no evidence of any irrational behavior and
nothing in Tassin’s demeanor to alert the district court of any
competency issues. And Tassin provided no prior medical opinions
of his competence.
Further, on multiple occasions, the district court inquired
into Tassin’s competence either directly or indirectly. Tassin
confirmed to the district court that he (1) had never been treated
for any mental illness or alcohol addiction; (2) was not under the
influence of any drugs or alcohol; (3) had not ingested any drugs or
alcohol in the last 48 hours; and (4) was not currently under the
care or treatment of any physician, psychologist, or psychiatrist.
While Tassin admitted to being addicted to beer, there is
nothing in the record or at the plea colloquy that would indicate
that his former consumption was affecting his ability to understand
the plea hearing proceedings. 3 Indeed, when Tassin was asked
whether he believed he had a physical or mental condition or
3Notably, too, Tassin had been in custody since April 26, 2019, over seven
weeks prior to his plea hearing on June 6, 2019.
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illness that would prevent him from understanding what was going
on at the plea hearing, he responded, “No, sir.” See United States
v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994) (“There is a strong
presumption that the statements made during the [plea] colloquy
are true.”).
In short, the record lacks any evidence that casts a bona fide
doubt as to Tassin’s competence to enter his plea, and Tassin and
his attorney both confirmed his competence at the hearing. Thus,
the district court did not abuse its discretion by accepting Tassin’s
guilty plea without sua sponte raising competence. 4
B. Objections Before Resentencing
Second, Tassin argues the district court erred by
determining that it lacked authority to consider new sentencing
objections when the district court resentenced him.
In Phillips, this Court outlined the remedy district courts are
to provide upon concluding in a § 2255 proceeding that an out-of-
time direct appeal in a criminal case is warranted. Phillips, 225 F.3d
at 1201. The remedy consists of this four-step process:
(1) the criminal judgment from which the out-of-time
appeal is to be permitted should be vacated; (2) the
4 The government also argues that the district court was not required to sua
sponte inquire into Tassin’s competency because Tassin invited any error
when he and his counsel assured the district court that he was competent to
proceed. Because there was no abuse of discretion, we need not address this
argument.
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same sentence should then be reimposed; (3) upon
reimposition of that sentence, the defendant should
be advised of all the rights associated with an appeal
from any criminal sentence; and (4) the defendant
should also be advised that the time for filing a notice
of appeal from that re-imposed sentence is [14] days,
which is dictated by Rule 4(b)(1)(A)(i).
Id. (emphasis added). Under Phillips, the defendant “is entitled to
an opportunity to allocute and have the court resentence
him . . . [H]owever, [the defendant] is not entitled to an entirely
new sentencing proceeding.” United States v. Doyle, 857 F.3d
1115, 1121 (11th Cir. 2017). Relevant here, in Doyle, this Court
determined that the district court properly refused to consider new
objections and a sentencing memorandum filed by the defendant
before the Phillips resentencing. Id. at 1118 n.2.
Here, consistent with Phillips and its progeny, the district
court properly granted Tassin’s § 2255 motion as to his out-of-time
appeal claim, vacated the judgment, reimposed the same sentence,
and advised Tassin of his appeal rights. The district court also
correctly refused to consider Tassin’s new objections to the PSI
before resentencing. See Doyle, 857 F.3d at 1118 n.2. Tassin’s
argument that Phillips was wrongly decided is foreclosed under
our prior panel precedent rule. United States v. Jordan, 635 F.3d
1181, 1189 (11th Cir. 2011) (stating that a prior panel’s holding is
binding on all subsequent panels unless the Supreme Court or this
Court sitting en banc overrules it). Thus, under our binding
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precedent, the district court did not err in finding that Tassin could
not raise new objections at resentencing.
C. Procedural Reasonableness
Third, Tassin argues that the district court imposed a
procedurally unreasonable sentence by applying two
enhancements—distributing child pornography in exchange for
valuable consideration under § 2G2.2(b)(3)(B) and involving
material portraying sadistic or masochistic conduct under
§ 2G2.2(b)(4)(A).
Tassin contends that we should apply a de novo standard of
review because the district court made an alternative ruling on the
merits of these enhancement objections at resentencing.
However, because Tassin failed to raise these objections at his
original sentencing and his type of resentencing did not permit any
new objections, we review his enhancement objections for plain
error. See United States v. Carpenter, 803 F.3d 1224, 1237 (11th
Cir. 2015). But regardless of which standard applies, Tassin’s
argument fails because he cannot establish error, let alone plain
error.
As to the enhancement under § 2G2.2(b)(3)(B), a defendant
shall receive a five-level increase if he distributed material involving
the sexual exploitation of a minor for any valuable consideration,
but not for pecuniary gain. U.S.S.G. § 2G2.2(b)(3)(B). This Court
has held that “when a defendant trades child pornography in
exchange for other child pornography, the defendant has engaged
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in distribution for the receipt, or expectation of receipt, of a thing
of value as provided in the 2000 version of [U.S.S.G.]
§ 2G2.2(b)(2).” United States v. Bender, 290 F.3d 1279, 1286 (11th
Cir. 2002); see also United States v. Vadnais, 667 F.3d 1206, 1208
(11th Cir. 2012) (reiterating this rule under § 2G2.2(b)(3)(B)).
Here, Tassin entered a KiK chatroom and was told by
another KiK user that he would be removed from the chatroom if
he did not post child pornography. When Tassin initially did not
post anything, he was removed from the room. Tassin re-entered
the chatroom, was given the same warning, and then provided a
link to a folder that contained over 100 images and videos of child
pornography. Tassin also admitted in his factual proffer that he
would use the images he had to trade with other KiK users in the
group. Under our precedent, the district court correctly applied
the five-level enhancement under § 2G2.2(b)(3)(B).
As to the enhancement under § 2G2.2(b)(4)(A), a defendant
shall receive a four-level increase if the offense involved material
that portrayed sadistic or masochistic conduct or other depictions
of violence. U.S.S.G. § 2G2.2(b)(4)(A). This Court has held that
material portrays sadistic or masochistic conduct “if the court
determines that (1) the minor in the image is a young child and
(2) the image portrays vaginal or anal penetration of a young child
by an adult male.” United States v. Hall, 312 F.3d 1250, 1263 (11th
Cir. 2002); see also United States v. Caro, 309 F.3d 1348, 1352 (11th
Cir. 2002) (“We have held that pictures of minors in bondage are
sufficient to warrant the sadistic conduct enhancement.”).
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Tassin’s factual proffer stated that the images and videos on
his phone included adult men vaginally penetrating young girls.
Further, the second PSI addendum, to which Tassin did not object,
stated that Tassin also had a video on his phone depicting child
pornography bondage. Thus, the district court correctly applied
the four-level enhancement under U.S.S.G. § 2G2.2(b)(4)(A).
D. Substantive Reasonableness
As to the fourth issue, Tassin argues the district court abused
its discretion by imposing a substantively unreasonable sentence.
We examine whether the sentence is substantively
unreasonable in light of the 18 U.S.C. § 3553(a) factors and the
totality of the circumstances. 5 United States v. Cubero, 754 F.3d
888, 892 (11th Cir. 2014). The § 3553(a) factors include the nature
and circumstances of the offense, the criminal history of the
defendant, the seriousness of the crime, the promotion of respect
for the law, just punishment, adequate deterrence, and protection
of the public. See 18 U.S.C. § 3553(a). The party challenging the
sentence bears the burden to show it is unreasonable. United
States v. Shabazz, 887 F.3d 1204, 1224 (11th Cir. 2018).
A district court abuses its discretion when it (1) fails to
consider relevant factors that were due significant weight, (2) gives
significant weight to an improper or irrelevant factor, or
5 We review the reasonableness of a sentence for abuse of discretion. Cubero,
754 F.3d at 892.
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(3) commits a clear error of judgment by balancing the proper
factors unreasonably. United States v. Irey, 612 F.3d 1160, 1189
(11th Cir. 2010) (en banc). We will reverse a sentence only “if we
are left with the definite and firm conviction that the district court
committed a clear error of judgment in weighing the § 3553(a)
factors by arriving at a sentence that lies outside the range of
reasonable sentences dictated by the facts of the case.” United
States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008) (quotation
marks omitted).
Here, Tassin’s sentence is substantively reasonable because
the district court analyzed the § 3553(a) factors in detail. As to
Tassin’s history and characteristics, the district court expressly
considered that Tassin consistently had shown remorse, had no
criminal history, and had the decency to bring in half of the
restitution payments owed to the two identified victims. But the
district court also noted that the nature and circumstances of the
offense were “deplorable,” including that he had 123 videos of child
pornography, some of which had bondage and victims under the
age of 5, thus showing the district court’s consideration of the
nature and circumstances of the offense.
The fact that Tassin’s total sentence of 240 months was
within the guidelines range of 210 to 262 months further indicates
that it was reasonable. See United States v. Rogers, 989 F.3d 1255,
1265 (11th Cir. 2021) (stating that a sentence being within the
guidelines range is an indicator of reasonableness). Tassin’s
argument of unwarranted sentence disparities—based on citations
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to the average sentence for someone convicted of murder and
sentences for non-production child pornography cases without
context or explanation—is unavailing because he has not shown
similarly situated defendants. Therefore, the district court did not
abuse its discretion in sentencing Tassin to 240 months’
imprisonment on each count, to run concurrently, because
Tassin’s sentence was substantively reasonable based on the facts
of the case and the 18 U.S.C. § 3553(a) factors.
E. Special Conditions of Supervised Release
As to his fifth issue, Tassin argues that these three special
conditions of his supervised release are overbroad: (1) the
prohibition from possessing or using any data encryption
technique or program; (2) the employer disclosure requirement;
and (3) the prohibition on possession of material that depicts adults
engaged in sexually explicit conduct.
We ordinarily review for abuse of discretion the validity of
special conditions of supervised release. United States v.
Coglianese, 34 F.4th 1002, 1010 (11th Cir. 2022). However, because
Tassin did not object to these conditions at sentencing, we review
for plain error. See Carpenter, 803 F.3d at 1237.
A district court may impose “any condition of supervised
release it deems appropriate so long as it comports with the factors
enumerated in § 3553(a).” Coglianese, 34 F.4th at 1010 (quotation
marks omitted). A valid special condition “must (1) be reasonably
related to a § 3553(a) factor; (2) involve no greater deprivation of
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22 Opinion of the Court 21-12017
liberty than is reasonably necessary for the purposes set forth in
§ 3553(a); and (3) be consistent with any pertinent policy
statements issued by the sentencing commission.” Id. (quotation
marks omitted). Further, special conditions of supervised release
“are not vague and overbroad when they are undeniably related to
the sentencing factors.” United States v. Nash, 438 F.3d 1302, 1307
(11th Cir. 2006) (quotation marks omitted).
In Coglianese, the defendant pled guilty to, inter alia, receipt
and transportation of child pornography. Coglianese, 34 F.4th at
1006. The district court imposed special conditions of supervised
release prohibiting the defendant from (1) using or possessing a
computer or a device capable of connecting to the internet without
prior approval from the probation office, and (2) possessing an
electronic data storage medium or any other data encryption
technique or program. Id. at 1007. On appeal, the defendant
argued that the restrictions were overbroad. Id. at 1009.
This Court disagreed and affirmed the defendant’s special
conditions of supervised release because use of the internet “was
the means by which he committed his crimes,” and “he used
devices capable of storing and transmitting computer-based or
digital information in the commission of the offenses to which he
pled guilty.” Id. at 1011, 1013. Further, the district court noted that
the defendant could seek and obtain approval from the probation
office to use computers and the internet for legitimate purposes.
Id. at 1013.
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21-12017 Opinion of the Court 23
Similarly, in Carpenter, this Court affirmed a defendant’s
sentence where (1) the defendant pled guilty to possessing child
pornography, and (2) the district court imposed a special condition
of supervised release that the defendant was prohibited from
accessing “depictions of minors or adults engaged in sexually
explicit conduct.” Carpenter, 803 F.3d at 1229, 1232. In the district
court, the defendant failed to object specifically to that condition,
so this Court reviewed for plain error. Id. at 1238–39. Because no
controlling authority from this Court or the Supreme Court
established that the district court erred in imposing the condition,
we affirmed the sentence. Id. at 1240–41.
We find no principled or material difference between the
computer conditions in this case and the ones in Coglianese. Two
special conditions—(1) prohibiting Tassin from possessing or using
any data encryption technique or program and (2) allowing his
computer related restrictions to be disclosed to any employer or
potential employer—are central to both his offense, history, and
characteristics. Tassin used a computer and cell phone to access an
online chatroom to commit his crimes. Further, as a former IT
professional, Tassin is well-versed in the use of such technology, as
evidenced by his custom computer tower. And if the situation
arises where Tassin needs data encryption technology for his job,
he can file a motion to modify his supervised release conditions,
which the district court pointed out at resentencing. Thus, Tassin
has shown no error, let alone plain error.
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24 Opinion of the Court 21-12017
As to the special condition prohibiting Tassin from
possessing materials depicting minors or adults engaged in sexually
explicit conduct, Tassin specifically objects that the condition is
overbroad because it includes adults. There is no plain error for
the same reasons laid out in Carpenter. Because there is no
Supreme Court or Eleventh Circuit precedent establishing that
such a condition is impermissible, we find no plain error in
imposing this special condition of supervised release. Further,
because Tassin does not point to any authority establishing that the
condition is error, we find no abuse of discretion.
III. CONCLUSION
For the above reasons, we affirm defendant Tassin’s
convictions and sentences.
AFFIRMED.