United States v. Frederick Banks ( 2022 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
Nos. 19-3812 & 20-2235
____________
UNITED STATES OF AMERICA
v.
FREDERICK H. BANKS,
Appellant
Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal Action No. 2-15-cr-00168-001)
District Judge: Honorable Mark R. Hornak
Argued on March 29, 2022
Before: RESTREPO, ROTH, and FUENTES, Circuit Judges
(Opinion filed: November 30, 2022)
Abigail E. Horn (ARGUED)
Federal Community Defender Office for
The Eastern District of Pennsylvania
601 Walnut Street
The Curtis Center
Suite 540 West
Philadelphia, PA 19106
Counsel for Appellant
Laura S. Irwin (ARGUED)
Office of the United States Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219
Counsel for Appellee
OPINION OF THE COURT
ROTH, Circuit Judge:
A jury convicted Frederick Banks of wire fraud, and the
District Court sentenced him to 104 months’ imprisonment and
three years’ supervised release. On appeal, Banks argues that
the District Court erred in three ways, by (1) denying his
constitutionally protected right to self-representation, (2)
applying the loss enhancement to the fraud guideline in the
2
United States Sentencing Guidelines because there was no
“actual loss,” and (3) imposing certain special conditions of
supervised release. 1 We conclude that the loss enhancement in
the Guideline’s application notes impermissibly expands the
word “loss” to include both intended loss and actual loss.
Thus, the District Court erred when it applied the loss
enhancement because Banks’s crimes caused no actual loss.
We will, therefore, affirm the judgment of the District Court
except on the issue of loss enhancement; we will remand this
case to the District Court for it to determine loss and to
resentence Banks.
I.
In January 2016, a federal grand jury indicted Frederick
Banks for stalking, wire fraud, aggravated identity theft, and
making false statements. The wire fraud charges “related to
interlocking schemes . . . carried out by [Banks] to fraudulently
gain the money and property of others in relation to the
FOREX.COM international exchange system by submitting
phony registration information for himself and then using those
registrations to execute bogus trades that would drop money
into bank accounts that he had set up.” 2
A. The Scheme
Banks’s scheme targeted Gain Capital Group, which did
business as Forex.com. Gain Capital’s clients opened
accounts, deposited funds, and then used those funds to invest
in the foreign currency exchange market. Banks’s plot was to
1
Appellant’s Br. at 2-4.
2
Appx. 875.
3
open Gain Capital accounts and make electronic deposits into
those accounts, but his deposits were drawn on bank accounts
with insufficient funds. He then tried to withdraw funds from
these accounts, “with the goal being to complete the
withdrawals/transfers before the lack of supporting funds could
be detected.” To support his scheme, Banks made fraudulent
representations through text message, telephone conversations,
and emails. He misrepresented his identity, his income, his
occupation, his net worth, and the balances in his bank
accounts.
Importantly, Gain Capital suffered no actual loss.
Banks made fraudulent deposits of $324,000 and
unsuccessfully executed 70 withdrawals/transfers totaling
$264,000. Gain Capital, however, did not transfer a single
dollar to Banks.
B. Banks’s Competence to Stand Trial and
Competence to Represent Himself
Early in Banks’s prosecution, his court-appointed
lawyer suggested to the District Court that Banks was not
competent to stand trial and to assist in his own defense. The
District Court concurred, relating that Banks
appeared to be materially detached from reality,
wholly inappropriate in his conduct,
communications and general affect, and
consumed, for reasons which to this day remain
inexplicable, with the notion that the then-
pending (and subsequently superseded) federal
criminal charges should all be dismissed because
4
in [Banks’s] estimation, [a] former FBI Agent
had set him up in an earlier federal prosecution
which long ago became final. 3
Banks was also “fixat[ed] with the same CIA-induced ‘voice
to skull’ telepathic communication” he referred to in an
“allegedly fraudulent habeas petition.” 4 The District Court
also noted that Banks had previously told this Court that he was
not competent to stand trial or represent himself, even when he
told the trial court in those proceedings that he was competent.
Accordingly, the District Court ordered an evaluation of
Banks. Dr. Robert Wettstein evaluated Banks and concluded
he “was psychotic and delusional, and was subject to various
forms of delusional and psychotic episodes.” 5 Dr. Wettstein
believed, however, that Banks could understand the nature and
consequences of the criminal charges against him and could
assist his lawyer in his defense.
The District Court then concluded “a second
professional opinion was necessary to protect both the rights of
[Banks] and the integrity of the judicial process.” 6 Dr. Heather
Ross, a forensic psychologist, concluded Banks “was so
continuously delusional that he was not competent to stand
trial, nor to waive his right to counsel and represent himself.” 7
After the statutory period of restorative treatment, yet another
forensic psychologist, Dr. Allisa Marquez, concluded not only
3
Appx. 876.
4
Appx. 876.
5
Appx. 876.
6
Appx. 877.
7
Appx. 877-78.
5
that Banks was restored to competency, but that he had never
been incompetent (as defined in 18 U.S.C. § 4241) because he
did not then suffer from, and had never suffered from, “any
mental disease or defect but was instead afflicted with a
chronic narcissistic and paranoid personality disorder, which
would cause him to act out of a disproportionate sense of self
grandeur but would not make him incompetent.” 8
After these evaluations, the District Court “repeatedly
solicited the position of both the United States and [Banks’s]
appointed counsel as to the issue of competency. They . . . each
uniformly and consistently expressed their observation that
[Banks] [was] neither competent to stand trial, nor to waive
counsel and represent himself at any such trial.” 9 Combined
with the District Court’s own observations of Banks, the
District Court accepted the conclusions of Drs. Wettstein and
Ross that Banks suffered from “a mental disease or defect of
psychosis and delusional paranoia,” but the District Court also
accepted the doctors’ conclusions that Banks was “competent
to be tried.” 10
Then the District Court considered Banks’s “repeatedly
asserted desire to waive representation by counsel and
represent himself.” 11 Although the District Court
acknowledged that “ordinarily, if a defendant is competent to
be tried, that means as a matter of course that such a defendant
is competent to represent himself,” it explained that trial court
judges are in a “particularly apt position . . . to assess such
8
Appx. 878.
9
Appx. 878.
10
Appx. 886.
11
Appx. 887.
6
matters, and that there can be a narrow class of cases in which
that parallel conclusion does not hold.” 12
The District Court concluded that the “content and
volume” of Banks’s filings demonstrated that he “is so
detached from the reality as to what can and cannot be
accomplished by legal processes that he has sought to assert in
the context of a federal criminal trial that he has not knowingly
and voluntarily waived his right to be represented by counsel
in the defense of these serious criminal charges, and is not
capable of doing so.” 13 Although Banks “can understand the
charges against him, and what can happen to him if he is
convicted of them, and that he can assist his lawyer as that
lawyer pulls the levers of justice on his behalf in the course of
a criminal trial . . . he has no competence to make the decision
to give up his right to be represented by a lawyer in that trial
and related proceedings in any knowing way.” 14
At trial, the jury convicted Banks of four counts of wire
fraud and one count of aggravated identity theft. 15
C. Sentencing
Banks’s offense level computation under the United
States Sentencing Guidelines included a special offense
characteristic for the attempted loss Banks intended to inflict
on Gain Capital. According to the presentence investigation
12
Appx. 887.
13
Appx. 887.
14
Appx. 887.
15
The government dismissed the stalking and false statements
charges.
7
report:
The attempted loss, based on [Banks’s]
fraudulent deposits, is $324,000. Therefore, the
base offense level is increased by 12 because the
attempted loss was greater than $250,000 but
less than $550,000. USSG §2B1.1(b)(1)(G) (As
a general rule, loss is the greater of actual loss or
intended loss, pursuant to Application Note 3). 16
The 12-point increase raised Banks’s adjusted offense level
from 7 to 19. During sentencing, the District Court explained
that the Sentencing Guidelines define “loss to not only be
actual loss, but to be intended loss. And the application notes
indicate that the intended loss counts into the calculation of the
loss amount, even if it’s determined to be improbable or
impossible of occurrence.” 17 The District Court found that the
loss amount exceeded $250,000, triggering the 12-point loss-
amount enhancement. The District Court explained that Banks
“intended to cause a loss in a pecuniary amount in excess of
$250,000” and that Banks “by his conduct, intended to cause
such a loss; and, therefore, it is appropriately added into the
guidelines calculation under 2B1.1.” 18
The District Court sentenced Banks to 104 months’
imprisonment and three years of supervised release.
16
PSR ¶ 22.
17
Appx. 1877.
18
Appx. 1897.
8
19
II.
Banks makes three arguments on appeal. First, he
contends that the District Court erred in denying his
constitutionally protected right to self-representation. Second,
he asserts that the loss enhancement to the fraud guideline,
found at U.S.S.G. § 2B1.1, should not apply because there was
no actual loss. Third, he argues that District Court erred in
imposing certain special conditions of supervised release.
Because the term “loss” is unambiguous in the context of §
2B1.1 and because the loss-enhancement commentary
improperly expands the Guideline, we will vacate Banks’s
judgment of sentence and remand this case to the District Court
for resentencing. We will affirm the District Court’s orders
denying Banks’s request to represent himself and imposing the
special conditions of supervised release.
A. Banks’s Right to Self-Representation 20
19
The District Court had subject-matter jurisdiction under 18
U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291and 18 U.S.C. § 3742(a).
20
We exercise plenary review in evaluating the legal
conclusion of whether Banks knowingly and voluntarily
waived his right to counsel. United States v. Peppers, 302 F.3d
120, 127 (3d Cir. 2002) (citing United States v. Stubbs, 281
F.3d 109, 113 n.2 (3d Cir. 2002)). We review for clear error
the District Court’s factual findings. Id. (citing Government of
Virgin Islands v. Charles, 72 F.3d 401, 404 (3d Cir. 1995)).
“The right of a defendant to represent himself is structural; as
such, ‘its denial is not amenable to harmless error analysis.
The right is either respected or denied; its deprivation cannot
9
Generally, criminal defendants have a constitutional
right to eschew a lawyer and go it alone. 21 That right, however,
requires a district court to confirm the defendant knowingly
and intentionally relinquishes the benefits of counsel. 22 Banks
wished to exercise this right, but the District Court concluded
that Banks was incapable of knowingly and voluntarily
waiving his right to be represented by counsel. We agree and
will affirm the District Court’s order denying Banks’s request
to proceed without counsel.
Banks mainly contends the District Court applied the
wrong test when it assessed whether his waiver of his right to
counsel was knowing and voluntary. He suggests the District
Court improperly conflated a knowing and voluntary waiver
with a determination of Banks’s competency for self-
representation at trial. We disagree.
In our Circuit, a defendant may only waive his right to
counsel if three requirements are met:
1. The defendant must assert his desire to
proceed pro se clearly and unequivocally.
2. The court must inquire thoroughly to satisfy
be harmless.’” Id. (quoting McKaskle v. Wiggins, 465 U.S.
168, 177 n.8 (1984) (internal quotations omitted)).
21
See, e.g., Faretta v. California, 422 U.S. 806 (1975).
22
Faretta, 422 U.S. at 835; Johnson v. Zerbst, 304 U.S. 458,
464-65 (1938)); see also McKaskle, 465 U.S. at 173 (the Sixth
Amendment grants a defendant the “right to conduct his own
defense, provided only that he knowingly and intelligently
forgoes his right to counsel and that he is able and willing to
abide by rules of procedure and courtroom protocol.”).
10
itself that the defendant understands “the
nature of the charges, the range of possible
punishments, potential defenses, technical
problems that the defendant may encounter,
and any other facts important to a general
understanding of the risks involved.”
3. The court must “assure itself” that the
defendant is competent to stand trial. 23
This appeal, and our analysis, focuses on the second
requirement—whether the District Court properly concluded
Banks did not knowingly and voluntarily waive his right to
counsel. We begin with the District Court’s analysis. The
District Court found that
the content and volume of [Banks’s] filings
demonstrate to this Court . . . that [Banks] is so
detached from the reality as to what can and
cannot be accomplished by legal processes that
he has sought to assert in the context of a federal
criminal trial that he has not knowingly and
voluntarily waived his right to be represented by
counsel in the defense of these serious criminal
charges, and is not capable of doing so. 24
The District Court added that although Banks understood the
charges against him, and what could happen to him if
convicted, “he has no competence to make the decision to give
up his right to be represented by a lawyer in that trial and
23
Peppers, 302 F.3d at 132 (internal citations omitted). We
explained in Peppers that these three requirements are “[i]n
skeletal form.” Id.24
Appx. 887.
11
related proceedings in any knowing way.” 25 Based on the
District Court’s colloquies with Banks, the District Court
concluded that Banks’s mental state, “is such that he not only
cannot, but is not capable of, understanding what it means to
give up his right to a lawyer and take on his own criminal
defense representation.” 26 At bottom, the District Court
explained that Banks is incapable of “sufficiently separating
fact from his own delusions so as to make a knowing decision
to go it alone at trial.” 27
The District Court predicated its finding that Banks
could not understand the risks of self-representation on
Banks’s voluminous filings and the court’s own observations
of Banks over several years. The court had noted Banks’s
“unrelenting focus” on his “perceived facts of the investigation
of the prior criminal convictions on the federal criminal
charges against him, which have long ago become final and
conclusive,” coupled with his “unrelenting and persistent focus
on CIA-managed ‘voice-to-skull’ technology, a construct as to
which he admits he has no factual basis to conclude was ever
applied to him.” 28
Because the District Court properly concluded Banks
could not knowingly and voluntarily waive his right to counsel,
we will affirm the District Court’s order denying Banks’s
request for a waiver of counsel.
25
Appx. 887.
26
Appx. 889.
27
Appx. 890. The District Court pointed out that Banks’s
counsel shared this view. Appx. 890 n.14.
28
Appx. 888.
12
B. The Intended-Loss Enhancement in Guideline §
2B1.1 29
Next, we turn to Banks’s argument that the District
Court erroneously applied the intended-loss enhancement to
his sentence when the victim suffered $0 in actual losses. The
application of the intended-loss enhancement hinges on the
meaning of the term “loss” as used in Guideline § 2B1.1.
Because the United States Sentencing Commission has
interpreted “loss” in its commentary, the weight afforded to
that commentary may affect the meaning of “loss.”
Courts treat the Sentencing Guidelines as legislative
rules, and the Sentencing Commission’s comments
interpreting its Guidelines as interpretative rules. 30
Historically, first, under Bowles v. Seminole Rock & Sand
Company, 31 and, later, under Auer v. Robbins, 32 courts deferred
to the Sentencing Commission’s interpretation of its own
regulations. 33 Application of Auer deference required courts
to defer to the Sentencing Commission’s commentary for a
Guideline unless that interpretation was plainly erroneous or
29
We review this legal issue de novo. United States v. Nasir,
17 F.4th 459, 468 (3d Cir. 2021) (en banc). We review the
District Court’s factual findings in support of the intended-loss
enhancement for clear error. United States v. Huynh, 884 F.3d
160, 165 (3d Cir. 2018).
30
Stinson v. United States, 508 U.S. 36, 44-45 (1993).
31
325 U.S. 410 (1945).
32
519 U.S. 452 (1997).
33
Stinson, 508 U.S. at 45 (quoting Seminole Rock, 325 U.S. at
414).
13
inconsistent with the Guideline. 34
Recently, however, the Supreme Court decided Kisor v.
Wilkie, in which it made clear that, before according Auer
deference, “a court must exhaust all the ‘traditional tools’ of
construction,” 35 and determine that a regulation is “genuinely
ambiguous.” 36 Under Kisor, then, a court must consider the
“text, structure, history, and purpose of a regulation, in all the
ways it would if it had no agency to fall back on.” 37
What’s more, a court must make an “independent
inquiry” into the “character and context” of the reasonable
interpretations of the regulation. 38 The Supreme Court
identified three character-and-context circumstances under
which an agency’s otherwise reasonable interpretation should
not receive controlling weight: (1) when an agency’s
interpretation is not its “‘authoritative’ or ‘official position’” 39;
(2) when an agency’s interpretation does not implicate its
“substantive expertise” in some way; 40 and (3) when an
agency’s reading does not reflect its “fair and considered
judgment” but rather is a “convenient litigating position,” a
34
See Stinson, 508 U.S. at 47; see also U.S.S.G. § 1B1.7,
Commentary.
35
139 S. Ct. 2400, 2415 (2019) (quoting Chevron U.S.A. Inc.
v. Nat. Res. Def. Council Inc., 467 U.S. 837, 843 n.9 (1984)).
36
Id. at 2414.
37
Id. at 2415.
38
Id. at 2416.
39
Id. (quoting United States v. Mead Corp., 553 U.S. 218, 257
(2001) (Scalia, J., dissenting)).
40
Id. at 2417.
14
“post hoc rationalization” 41 or parroting of a federal statute. 42
Under Kisor, then, there must be both a genuine ambiguity in
an agency’s regulation and the character and context of an
agency’s interpretation must fall within the regulation’s zone
of ambiguity. 43
Against this backdrop, this Court sat en banc and
unanimously concluded that this reprised standard for Auer
deference applied to the Sentencing Commission’s interpretive
commentary. 44 “If the Sentencing Commission’s commentary
sweeps more broadly than the plain language of the guideline
it interprets, we must not reflexively defer. The judge’s
lodestar must remain the law’s text, not what the [Sentencing]
Commission says about that text.” 45 That framework, then,
applies to Banks’s challenge to § 2B1.1’s intended-loss
enhancement. 46
41
Id. at 2417 (quoting Christopher v. SmithKline Beecham
Corp., 567 U.S. 142, 155 (2012) (cleaned up)).
42
See id. at 2417 n.5 (citing Gonzales v. Oregon, 546 U.S. 243,
257 (2006))
43
Id. at 2415-18.
44
See Nasir, 17 F.4th at 470-71.
45
Id. at 472 (Bibas, J., concurring).
46
Nasir does not prevent courts from considering other forms
of commentary – background commentary or commentary
regarding departure from a Guideline – or other resources from
the Sentencing Commission in imposing a sentence. See Nasir,
17 F.4th at 470-71; see also U.S.S.G. § 1B1.7 (describing three
types of commentary to the Guidelines). Nasir applies the
Kisor process only to a court’s use of the Sentencing
Commission’s interpretive commentary as a tool to determine
the meaning of a Guideline. See Nasir, 17 F.4th at 470-71; see
15
We begin with the plain text of § 2B1.1. 47 The
Guideline is titled “Larceny, Embezzlement, and Other Forms
of Theft; Offenses Involving Stolen Property; Property
Damage or Destruction; Fraud and Deceit; Forgery; Offenses
Involving Altered or Counterfeit Instruments Other than
Counterfeit Bearer Obligations of the United States.” 48 The
Guideline then provides a graduated scale based on the
monetary amount of loss. As the victim’s monetary loss
grows, so too does the enhancement to the defendant’s offense
level:
also Stinson, 508 U.S. at 45.
47
Although we have suggested that “[b]y interpreting ‘loss’ to
mean intended loss, it is possible that the commentary ‘sweeps
more broadly than the plain text of the Guideline,’” we have
not resolved the issue. See United States v. Kirschner, 995
F.3d 327, 333 (3d Cir. 2021) (quoting United States v. Nasir,
982 F.3d 144, 177 (3d Cir. 2020) (en banc) (Bibas, J.,
concurring)).
48
U.S.S.G. § 2B1.1.
16
The Guideline does not mention “actual” versus “intended”
loss; that distinction appears only in the commentary. That
absence alone indicates that the Guideline does not include
intended loss. 49
The government concedes that “the presumption is that
a word carries its ordinary meaning (and thus may resolve its
ambiguity).” 50 We agree. The ordinary meaning of “loss” in
the context of § 2B1.1 is “actual loss.” This result is confirmed
by dictionary definitions of “loss.” 51 The 1993 edition of
49
See Nasir, 17 F.4th at 471.
50
Government’s Br. at 38.
51
See, e.g., Borden v. United States, 141 S. Ct. 1817, 1830
17
Webster’s New International Dictionary defines “loss” as:
(a) the act or fact of losing;
(b) a person or thing or an amount that is lost;
(c) the act or fact of failing to gain, win, obtain,
or utilize;
(d) A decrease in amount, magnitude, or degree;
(e) the state or fact of being destroyed or placed
beyond recovery; and
(f) the amount of an insured’s financial
detriment due to the occurrence of a
stipulated contingent event. 52
The 1988 edition of Webster’s Ninth New Collegiate
Dictionary defines “loss” as:
1a: the act of losing possession b: the harm or
privation resulting from loss or separation c: an
instance of losing
2: a person or thing or an amount that is lost . . .
3 a: failure to gain, win, obtain, or utilize b: an
amount by which the cost of an article or service
exceeds the selling price
(2021) (a “term’s ordinary meaning informs [the court’s]
construction.”); Bostock v. Clayton Cnty., Ga., 140 S. Ct. 1731,
1750 (2020) (“[T]he law’s ordinary meaning at the time of
enactment usually governs.”); Food Mktg. Inst. v. Argus
Leader Media, 139 S. Ct. 2356, 2363 (2019) (noting that
dictionary definitions “shed light on the statute’s ordinary
meaning.”).
52
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1338
(1993).
18
4: decrease in amount, magnitude, or degree
5: destruction, ruin
6: the amount of an insured’s financial detriment
by death or damage that the insurer become
liable for . . .. 53
In collecting dictionary definitions of “loss,” the United States
Court of Appeals for the Sixth Circuit wrote that:
One dictionary defines the word to mean, among
other things, the “amount of something lost” or
the “harm or suffering caused by losing or being
lost.” American Heritage Dictionary of the
English Language 1063 (3d ed. 1992). Another
says it can mean “the damage, trouble,
disadvantage, [or] deprivation … caused by
losing something” or “the person, thing, or
amount lost.” Webster’s New World College
Dictionary 799 (3d ed. 1996). A third defines it
as “the being deprived of, or the failure to keep
(a possession, appurtenance, right, quality,
faculty, or the like),” the “[d]iminution of one’s
possessions or advantages,” or the “detriment or
disadvantage involved in being deprived of
something[.]” 9 Oxford English Dictionary 37
(2d ed. 1989). 54
Our review of common dictionary definitions of “loss” point
to an ordinary meaning of “actual loss.” None of these
definitions suggest an ordinary understanding that “loss”
53
WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY 706
(1988).
54
United States v. Riccardi, 989 F.3d 476, 486 (6th Cir. 2021).
19
means “intended loss.” To be sure, in context, “loss” could
mean pecuniary or non-pecuniary loss and could mean actual
or intended loss. 55 We need not decide, however, whether one
clear meaning of the word “loss” emerges broadly, covering
every application of the word. Rather, we must decide
whether, in the context of a sentence enhancement for basic
economic offenses, the ordinary meaning of the word “loss” is
the loss the victim actually suffered. 56 We conclude it is.
Because the commentary expands the definition of
“loss” by explaining that generally “loss is the greater of actual
loss or intended loss,” 57 we accord the commentary no weight.
Banks is thus entitled to be resentenced without the 12-point
intended-loss enhancement in § 2B1.1. 58
C. The Special Conditions of Supervised Release 59
55
See id. (“‘loss’ can mean different things in different
contexts.”).
56
A plain and ordinary reading of § 2B1.1 confirms “loss”
means “actual loss.” It is only when we turn to the commentary
that the ambiguity of “actual” or “intended” loss is injected.
57
U.S.S.G. § 2B1.1 App. Note 3(A).
58
Our holding should not be read as imposing any restriction
on a district court’s discretion to vary a sentence when
appropriate.
59
We review a district court’s decision to impose special
conditions of supervised release for abuse of discretion.
United States v. Icker, 13 F.4th 321, 327 (3d Cir. 2021) (citing
United States v. Loy, 237 F.3d 251, 256 (3d Cir. 2001)). When,
however, a defendant fails to object to a special condition at
sentencing, we review the imposition of special conditions for
20
Finally, Banks argues the District Court erred by
imposing four special conditions of supervised release: (1)
barring Banks from purchasing digital devices without
approval; (2) barring Banks from conducting certain financial
transactions without approval; (3) imposing costs and fees on
Banks; and (4) requiring Banks to “cooperate in the collection
of DNA as directed by the Probation Officer, pursuant to 28
C.F.R. § 28.12, the DNA Fingerprint Act of 2005, and”—as
Banks underscores on appeal—“the Adam Walsh Child
Protection and Safety Act of 2006.” 60
The government contends that Banks did not properly
preserve his challenges to the special conditions because he did
not object to any of them at sentencing. Banks concedes that
his challenges to the device-purchase and financial-
transactions conditions are unpreserved, so we will review
those conditions for plain error. The parties dispute whether
plain error or abuse of discretion guides our review of the costs
plain error. Icker, 13 F.4th at 327 (citing United States v.
Maurer, 639 F.3d 72, 77 (3d Cir. 2011)). The Supreme Court
described a four-part inquiry courts should follow when
conducting plain-error review under Federal Rule of Criminal
Procedure 52(b): “[t]here must (1) be an ‘error’ that (2) is
‘plain’ and (3) ‘affects substantial rights’” of the defendant.
United States v. Williams, 974 F.3d 320, 340 (3d Cir. 2020)
(quoting United States v. Olano, 507 U.S. 725, 732 (1993)).
“If these three conditions are satisfied, then it is within the
sound discretion of the court of appeals to correct the forfeited
error—but only if (4) the error seriously affects the fairness,
integrity or public reputation of judicial proceedings.”
Williams, 974 F.3d at 340 (quoting Olano, 507 U.S. at 732).
60
Appx. 8.
21
and fees award and the DNA collection requirement under the
Adam Walsh Act. It does not matter because under either
standard we will affirm. We address each condition of
supervised release in turn.
First, the District Court barred Banks from purchasing
digital devices without approval. 61 Banks argues the condition
is “contradictory, vague, and violates” 18 U.S.C. §
3583(d)(2). 62 We disagree. The District Court’s condition is
not contradictory because it merely forbids Banks from
purchasing new digital devices, not from using digital devices
he already owns. The District Court’s condition is not vague
because it gives Banks fair warning of his legal obligation.63
A condition of supervised release “is void for vagueness if it
‘either forbids or requires the doing of an act in terms so vague
that men of common intelligence must necessarily guess at its
meaning and differ as to its application.’” 64 We are
unpersuaded, however, by Banks’s argument that “computers,
cell phones, or electronic communication or data storage
devices” is so vague Banks must guess at its meaning. Further,
61
The special condition explained Banks shall not “purchase
computers, cell phones, or electronic communication or data
storage devices without the consent of the probation officer.”
Appx. 8.
62
Appellant’s Br. at 49. Banks contends that this condition
contradicts with a later condition that states Banks “is
permitted to possess and/or use a computer and is allowed to
access the internet.” Appx. 8.
63
See United States v. Maloney, 513 F.3d 350, 357 (3d Cir.
2008).
64
Id. (quoting United States v. Lee, 315 F.3d 206, 214 (3d Cir.
2003)).
22
Banks can either ask his probation officer for guidance or can
bring an as-applied challenge should an issue arise. 65
The device-purchase condition also does not violate 18
U.S.C. § 3583(d)(2)’s requirement that special conditions be
narrowly tailored. Banks argues this restriction “may apply to
benign devices such as fitness trackers and smart appliances”
and that with respect to computers “any safety concerns are
already addressed by other conditions—providing usernames
and passwords, installing monitoring software, and conducting
unannounced examinations.” 66 However, we agree that the
District Court properly limited Banks’s access to digital
devices based on “the mechanisms by which [he] engaged in
[his] fraudulent conduct.” 67 The District Court explained why
it ordered these special conditions:
Mr. Banks, I’m imposing those computer
restrictions because that’s the tools you use to
trick other people, to try and take their money, to
try and enrich yourself, to commit fraud. And I
specifically find in the facts of your case that
there’s no basis for the Court to conclude that
you’re not unwilling to continue to do so. Those
are the tools of the fraud that you committed in
this case. Those are the tools of the crimes of
conviction in this case.
65
See, e.g., United States v. Comer, 5 F.4th 535, 544 (4th Cir.
2021) (concluding the defendant “can always bring an as-
applied challenge down the road if she believes her rights have
been violated by a specific application of the condition.”).
66
Appellant’s Br. at 52.
67
Appx. 1972.
23
When I couple that with your prior record of
federal criminal convictions for fraud, the
aggravated identity theft conviction in this case,
your willingness to cause turmoil in the lives of
other people by legal filings, by financial
chicanery, I specifically find and conclude that
it’s necessary for you to comply with the law and
to fulfill the purposes of supervised release that
all of those conditions be in place in your case. 68
The District Court’s findings and reasoning support the device-
purchase conditions and are narrowly tailored to Banks. We
will affirm the device-purchase conditions.
Second, the District Court barred Banks from
conducting certain financial transactions without approval.
The District Court prohibited Banks from “engag[ing] in
financial transactions in any single amount in excess of
$500.00 (or cumulatively within any 7 day period in excess of
$100[0].00) without approval of the probation office.” 69 Banks
argues this condition is vague and violates 18 U.S.C. §
3583(d)(2). For example, Banks suggests that it is unclear
whether he is barred from using an ATM to deposit a paycheck
or withdraw cash to pay his rent. Such a reading is not one that
“men of common intelligence” would guess at or differ as to
68
Appx. 1974-75.
69
Appx. 9. The District Court inadvertently wrote $100.00 in
its written special conditions, but during the oral sentencing the
District Court explained the cumulative amount was
$1,000.00. See Appx. 1973.
24
its application. 70 Indeed, conditions “may afford fair warning
even if they are not precise to the point of pedantry,” and “can
be written—and must be read—in a commonsense way.” 71 We
disagree the financial-transactions condition is vague.
For the same reasons, we agree that the financial-
transactions condition does not violate 18 U.S.C. § 3583(d)(2).
Banks identifies myriad mundane transactions—paying rent,
utility bills, and other expenses—that are barred by this
condition and which must mean it is not narrowly tailored. To
be sure, this condition could render modern life difficult, where
much commerce is transacted using electronic devices. 72 That
is true, though, of many conditions of probation. Banks
himself concedes he can simply get approval from his
probation officer to pay his bills online or to use an ATM to
withdraw needed funds. For these reasons, we conclude the
financial-transactions condition does not violate 18 U.S.C. §
3583(d)(2).
Third, the District Court imposed certain costs and fees
on Banks. 73 Banks contends that the District Court gave no
reason for these conditions, in violation of 18 U.S.C. §
3583(d)(1) and (2). Banks further asserts that he is indigent,
lacks family support and housing, and cannot afford to pay a
fine. The condition, however, is permissive, not mandatory.
70
Maloney, 513 F.3d at 357 (quoting Lee, 315 F.3d at 214).
71
United States v. Gallo, 20 F.3d 7, 12 (1st Cir. 1994).
72
See, e.g., United States v. Albertson, 645 F.3d 191, 199 (3d
Cir. 2011).
73
See Appx. 1970-73 (explaining several times that Banks
“may be required to contribute to the cost of treatment services
in an amount not exceeding the actual cost.”).
25
Although the written special conditions say Banks “shall be
required to contribute to the costs of services,” 74 the District
Court’s oral sentence states that Banks “may be required to
contribute to the cost of treatment services[.]” 75 We “follow
the ‘firmly established and settled principle of federal criminal
law that an orally pronounced sentence controls over a
judgment and commitment order when the two conflict.’” 76
So, the District Court’s oral pronouncement that Banks “may”
have to contribute controls.
More importantly, Banks’s challenge to this potential
imposition of costs is unripe. Because the probation office
indeed might not require Banks to contribute to these costs, his
challenge “rests upon contingent future events that may not
occur as anticipated, or indeed may not occur at all.” 77 If
Banks wishes to conform the written special conditions to the
District Court’s oral pronouncement, he may move under
Federal Rule of Criminal Procedure 36 to do so. But we may
not review his unripe challenge to a potential special condition.
Finally, the District Court ordered that Banks “shall
cooperate in the collection of DNA as directed by the Probation
Officer, pursuant to 28 C.F.R. § 28.12, the DNA Fingerprint
Act of 2005, and the Adam Walsh Child Protection and Safety
74
Appx. 9.
75
See, e.g., Appx. 1971.
76
United States v. Chasmer, 952 F.2d 50, 52 (3d Cir. 1991)
(quoting United States v. Villano, 816 F.2d 1448, 1450 (10th
Cir. 1987)).
77
Texas v. United States, 523 U.S. 296, 300 (1998) (cleaned
up).
26
Act of 2006.” 78 Banks contends that the District Court’s
reference to the Adam Walsh Act should be excised because
the Act enacted the Sex Offender Registration and Notification
Act and “the false implication that a person is a sexual offender
carries enormous social and legal disadvantages.” 79 In its oral
sentence, the District Court simply said Banks must
“participate in the collection of DNA as directed by the
probation office.” 80 Neither reference to the Adam Walsh Act
in the written sentence nor the District Court’s oral sentence
give the false implication that Banks is a sexual offender.
Again, nothing about requiring Banks to participate in DNA
collection or referencing the Act “seriously affects the fairness,
integrity or public reputation of judicial proceedings.” 81
III.
For the reasons stated above, we will affirm the
District Court’s order denying Banks’s request to waive his
right to counsel as well as the District Court’s order
imposing special conditions of supervised release. Because
we hold that “loss” in the context of U.S.S.G. § 2B1.1 is
not ambiguous, we will vacate the judgment of sentence
and remand this case so that the District Court can
resentence Banks without the intended-loss enhancement.
78
Appx. 8.
79
Appellant’s Br. at 56-57.
80
Appx. 1972.
81
Williams, 974 F.3d at 340 (quoting Olano, 507 U.S. at 732).
27