USCA11 Case: 23-10413 Document: 28-1 Date Filed: 11/22/2023 Page: 1 of 6
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10413
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JACKIE BERNARD HARVEY,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:18-cr-20222-FAM-1
____________________
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2 Opinion of the Court 23-10413
Before ROSENBAUM, JILL PRYOR, and BRANCH, Circuit Judges.
PER CURIAM:
Jackie Harvey appeals the district court’s reimposition of a
special condition of his supervised release that prohibits him from
possessing or exchanging visual depictions of sexually explicit con-
duct involving adults. After careful review of the record and the
parties’ briefs, we vacate the special condition and remand for fur-
ther proceedings.
I.
In July 2018, Harvey was convicted in federal court of failing
to register as a sex offender, stemming from prior convictions for
enticing a child for indecent purposes, and sentenced to 27 months
in prison to be followed by a life term of supervised release. We
affirmed his sentence on appeal. United States v. Harvey,
824 F.
App’x 889 (11th Cir. 2020). Harvey was released from prison in
March 2020, and he began serving the life term of supervision.
In February 2022, the district court revoked Harvey’s super-
vised release and sentenced him to 24 months’ imprisonment. The
court also reimposed the life term of supervised release with the
same conditions as previously imposed. In doing so, the court over-
ruled Harvey’s objection to a special condition of supervised re-
lease that prohibited him from possessing or exchanging any visual
depictions of adults engaged in sexually explicit conduct.
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23-10413 Opinion of the Court 3
Harvey appealed both his sentence and the adult-pornogra-
phy special condition. We vacated the sentence and remanded for
resentencing because the court appeared to base its choice of sen-
tence in part on an erroneous interpretation of an underlying state
statute. We declined to consider Harvey’s challenge to the special
condition at that time. But we noted some ambiguity in the record
about whether the court viewed the condition as necessary, inviting
further explanation “should the court choose to reimpose that con-
dition on remand.” United States v. Harvey, No. 22-10610,
2022 WL
16646564, *4 (11th Cir. Nov. 3, 2022).
The district court held a resentencing hearing on remand in
January 2023. At the hearing, the government conceded that the
condition was more intrusive than necessary in light of the other
conditions of release, including internet restrictions. The proba-
tion officer recommended that the condition remain imposed be-
cause “defendants who are participating in sex offender treatment
agree to restrictions of viewing . . . sexually explicit material” as
“part of the therapeutic process.” The government replied that
Harvey would be required to comply with any conditions of his
sex-offender treatment, so a separate pornography condition was
unnecessary.
The district court asked for defense counsel’s views before
quickly interjecting that it was “going to impose it” in light of the
probation officer’s comments, stating that “[i]t’s just better to stay
away from that, at least initially,” when undergoing treatment. The
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4 Opinion of the Court 23-10413
court indicated that Harvey “could always modify the lifetime su-
pervised release or reduce it” in the future.
Harvey objected that the special condition lacked a “suffi-
cient nexus to the defendant and to the crime charged.” The dis-
trict court disagreed, stating that probation was “correct in doing
that and that’s why every other defendant waives it in order to get
the treatment.” Accordingly, the court sentenced Harvey to 18
months’ imprisonment and reimposed the same conditions of su-
pervised release. This appeal followed.
II.
We review the imposition of a special condition of super-
vised release for an abuse of discretion.1 United States v. Moran,
573
F.3d 1132, 1137 (11th Cir. 2009). Generally, “we will reverse only if
we have a definite and firm conviction that the district court com-
mitted a clear error of judgment in the conclusion it reached.”
Id.
(cleaned up).
1 The government’s argument for plain error review is unconvincing, and it
has not adequately briefed an argument that Harvey’s challenge is barred by
another doctrine or principle. Even if we agree there is a “difference between
imposition and reimposition of a special condition,” the government cites no
authority for its claim that Harvey forfeited his current challenge, which he
raised and argued below, by failing to object when the condition was first im-
posed at his original sentencing. As our mandate confirmed, the district court
retained discretion to reimpose the adult-pornography special condition when
resentencing Harvey, and the court exercised that discretion over Harvey’s
objection. Because the issue was properly preserved below, we review for an
abuse of that discretion.
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23-10413 Opinion of the Court 5
In sentencing a defendant, the district court may impose any
condition of supervised release that (a) “is reasonably related” to
the history and characteristics of the defendant and the sentencing
goals of deterrence, protection of the public, and rehabilitation;
(b) “involves no greater deprivation of liberty than is reasonably
necessary” to accomplish those goals; and (c) is consistent with the
Sentencing Commission’s policy statements.
18 U.S.C. §
3583(d)(1)–(3); see
18 U.S.C. § 3553(a)(1), (2)(B)–(D); U.S.S.G. §
5D1.3(b). To be reasonably related, a condition need not be “sup-
ported by each factor enumerated in § 3553(a),” which merit “in-
dependent consideration.” United States v. Zinn,
321 F.3d 1084, 1089
(11th Cir. 2003). And while “a condition of supervised release
should not unduly restrict a defendant’s liberty, a condition is not
invalid simply because it affects a probationer’s ability to exercise
constitutionally protected rights.”
Id.
Here, the district court abused its discretion in imposing the
adult-pornography special condition. Apart from Harvey’s com-
mission of child enticement in 1997, the court did not suggest there
was anything particular about Harvey’s history and characteristics
that warranted prohibiting his possession of legal pornography in-
volving adults.2 Rather, the court imposed the condition because,
according to the probation officer, “defendants who are
2 Harvey was convicted in 1997 of exposing his penis to his nephews, ages
seven and nine, and attempting to force them to perform oral sex on him. He
also has convictions for failure to register as a sex offender. But the record
does not indicate any connection between these offenses and pornography.
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6 Opinion of the Court 23-10413
participating in sex offender treatment” as a component of their
supervised release “agree to restrictions of viewing . . . sexually ex-
plicit material” as “part of the therapeutic process.”
However, the special condition as written goes well beyond
prohibiting adult pornography insofar as such a ban remains a re-
quirement of Harvey’s sex-offender treatment. Instead, the condi-
tion imposes a lifetime ban on such materials regardless of Har-
vey’s treatment status, even if it remains subject to later modifica-
tion. See
18 U.S.C. § 3583(e). As the government noted below, Har-
vey is already subject to severe restrictions on internet or computer
access, and he would be required in any case to comply with any
conditions of his court-ordered sex-offender treatment, including
any conditions restricting the viewing of legal pornography. And
the district court identified no other reason warranting its lifetime
ban on such materials.
In sum, neither the district court’s reasoning nor the record
more generally supports a conclusion that the adult-pornography
condition as written “involves no greater deprivation of liberty
than is reasonably necessary” for the purposes of sentencing. See
18 U.S.C. § 3583(d)(2). We therefore vacate that condition and re-
mand for further proceedings.
VACATED AND REMANDED.
