United States v. Charles Murray , 692 F.3d 273 ( 2012 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
Nos. 11-3196 and 11-3197
_____________
UNITED STATES OF AMERICA
v.
CHARLES F. MURRAY,
Appellant
_____________
On Appeal from the District Court
for the Western District of Pennsylvania
(Nos. 2-11-cr-00051 and 2-11-cr- 00052)
District Judge: Honorable Gary L. Lancaster
___________
Argued on March 27, 2012
Before: FUENTES, SMITH and JORDAN, Circuit
Judges
(Opinion Filed: September 5, 2012)
Lisa B. Freeland
Kimberly R. Brunson (ARGUED)
1
Federal Defenders of the Western District of
Pennsylvania
1500 Liberty Center
1001 Liberty Avenue
Pittsburgh, PA 15222
Attorneys for Appellant Charles F. Murray
Rebecca R. Haywood (ARGUED)
Craig W. Haller
Unites States Attorney‟s Office for the Western
District of Pennsylvania
700 Grant Street, Suite 4000
Pittsburgh, PA 15219
Attorneys for the United States of America
OPINION OF THE COURT
FUENTES, Circuit Judge:
In 2004 in the District of New Jersey, Charles Murray
pleaded guilty to traveling interstate to engage in illicit sexual
conduct with a minor. Later that same year, in a separate case in the
Eastern District of Pennsylvania, he pleaded guilty to possession of
child pornography. For these offenses, he was sentenced to an
aggregate term of 95 months‟ imprisonment, to be followed by
concurrent three-year terms of supervised release. Both of Murray‟s
sentencing judges imposed upon him various special conditions of
supervised release that, for example, require him to register as a sex
offender and to submit to unannounced searches of his computer.
2
After Murray was released from prison in July 2010, he
moved to the Western District of Pennsylvania. That District thus
assumed jurisdiction over him for the remainder of his term of
supervised release. Though Murray had not violated his existing
supervised release conditions, the Probation Office sought to modify
them to bring them in line with the conditions of release that are
typically used in the Western District. Some of the Probation
Office‟s proposed conditions were duplicative of those already
mandated by the Eastern District of Pennsylvania and District of
New Jersey, but others were new. The District Court granted the
Probation Office‟s request and imposed several new, more stringent
conditions on Murray. Murray now appeals. For the reasons that
follow, we will remand this case to the District Court.
I.
A.
In the spring of 2003, Murray made contact online with a 14
year-old boy and the two communicated via phone and instant
message for several months. On two occasions in May 2003,
Murray crossed state lines, picked up the boy, and took him to a
private parking lot where they engaged in sexual acts. Although
Murray insisted that the sex was consensual, the boy reported that he
believed he did not have a choice. Thus, on April 1, 2004, Murray
pleaded guilty to two counts of traveling in interstate commerce to
engage in illicit sexual conduct with a minor, in violation of 18
U.S.C. § 2423(b). The District Court for the District of New Jersey
sentenced him to a term of 83 months‟ imprisonment for each count,
to be served concurrently, followed by a three-year term of
supervised release. Along with the standard conditions of
3
supervised release, the District Court imposed some additional
conditions.1
In July 2003, during the course of their investigation of the
New Jersey case, federal officers executed a search warrant at
Murray‟s Pennsylvania residence. The officers seized computer
equipment, and found approximately 184 images of child
pornography. Thus, on November 5, 2004 in the Eastern District of
Pennsylvania, Murray pleaded guilty to one count of possession of
child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). The
District Court sentenced Murray to 40 months‟ imprisonment, with
28 months to run concurrently to his New Jersey sentence and 12
months to run consecutively. In addition, it imposed a three-year
term of supervised release, to run concurrently with the term of
supervision imposed by the District of New Jersey. The
Pennsylvania District Court also imposed some special conditions of
supervised release.2
1
These included requirements that Murray: 1) register with
the state sex offender registration agency in any state where he
resides, is employed, etc.; 2) cooperate in the collection of his DNA;
3) not obtain employment or perform volunteer work which includes
contact with minor children; 4) not possess child pornography; 5)
allow his probation officer the right of reasonable search of his
residence or any other establishment within his control; 6) submit to
unannounced searches of his computer equipment; and 7) advise the
Probation Office of any computers to which he has access, and agree
not to use others‟ computers unless the owners have consented to
have them monitored.
2
These included requirements that Murray: 1) participate in a
mental health treatment program, which may include urine testing, at
the direction and discretion of the probation officer; 2) cooperate in
the collection of his DNA; and 3) have restricted computer use,
4
B.
On July 2, 2010, Murray was released from prison and began
his term of supervised release.3 Murray relocated to a small city
near Pittsburgh, Pennsylvania, and in August and September 2010,
jurisdiction over him for the remainder of his supervised release
terms was transferred to the Western District of Pennsylvania.
Though Murray had not violated or otherwise failed to comply with
any of his existing supervised release conditions, the Probation
Office for the Western District of Pennsylvania sought to modify
those conditions “to reflect the language approved by the Court in
the Western District of Pennsylvania relative to individuals
convicted of similar offenses.” App. 58. Some of the requested
conditions were duplicative of those already mandated by the
Eastern District of Pennsylvania and the District of New Jersey, but
others were new. Among the Probation Office‟s proposed
conditions were requirements that Murray:
monitored contact with minors, and counseling as directed by the
probation officer.
3
Murray was arrested and detained on July 25, 2003, and
there is no indication that he was ever released on bail. While our
record is not clear on this point, it seems that it was a combination of
credit for the time he served prior to his sentencing, along with good
time credit, that permitted Murray‟s release on July 2, 2010,
approximately 7 years later. See 18 U.S.C. § 3624(b)(1) (“[A]
prisoner who is serving a term of imprisonment of more than 1 year .
. . may receive credit toward the service of the prisoner‟s sentence,
beyond time served, of up to 54 days at the end of each year of the
prisoner‟s term of imprisonment . . . [if] the prisoner has displayed
exemplary compliance with institutional disciplinary regulations.”).
5
1) participate in a mental health and/or sex offender
treatment program and submit to polygraph testing to
determine if he is in compliance with the conditions of his
release;
2) register as a sex offender;
3) not possess any material depicting or describing
sexually explicit conduct;
4) not possess any material depicting or describing
child pornography;
5) consent to the installation of computer monitoring
hardware/software to monitor any computer or
electronic device he may use, and pay for the cost of
this monitoring;
6) consent to the seizure and removal of any hardware
or data storage media he might possess for further
analysis by the Probation Officer upon reasonable
suspicion that he committed an unlawful act or
violated his conditions of supervised release;
7) notify his employer of the nature of his conviction if
he is going to use a computer at work;
8) provide the Probation Officer with information,
including passwords, about any and all computers and
other electronic devices to which he has access; and
9) submit his person, property, house, residence,
vehicle, papers, and business or place of employment
to a search upon reasonable suspicion of contraband or
a violation of a condition of supervision.
On March 29, 2011, the Probation Office submitted a
Supplemental Petition requesting leave to incorporate additional
language, which it had inadvertently omitted, into one of the
proposed conditions. Specifically, the Probation Office expanded
upon Proposed Condition Five to add a requirement that Murray
6
submit any of his computers, cell phones, or other electronic devices
to periodic, unannounced examinations by his Probation Officer.
Murray filed a brief in opposition to these modifications. He
argued, among other things, that his conditions of supervised release
should not be changed because he had not violated his existing
release conditions, and he emphasized that the Probation Office had
not explained why the existing conditions were insufficient to serve
the purposes of sentencing. The Probation Office then filed Second
Supplemental Petitions in both cases, in which it stated that it had
“inadvertently included [in the previous petitions] conditions of
supervision that would not be appropriate in this case.” App. 104.
The Probation Office thus retracted proposed Conditions One
(mental health treatment and polygraph testing), Two (sex offender
registration), Three (possession of sexually explicit material), and
Four (possession of material depicting child pornography) without
describing why they were inappropriate.
A hearing was held before the District Court on May 25,
2011. The District Court ultimately issued an Opinion and Order
that granted the Petition on Supervised Release and the
Supplemental Petition and directed that Murray‟s conditions of
supervised release be modified to impose all nine proposed
conditions. The Court did not explain why it was mandating the
imposition of those conditions that the Probation Office had since
retracted, and it found that it could modify Murray‟s conditions of
supervised release regardless of whether “new or unforeseen”
circumstances had arisen. The Court also held, in the alternative,
that if changed circumstances were required, the transfer of
jurisdiction over Murray‟s case to the Western District of
Pennsylvania was sufficient. The District Court noted that it had
considered the relevant § 3553(a) factors and concluded that the
7
requested conditions involved no greater deprivation of liberty than
was reasonably necessary to achieve the goals of sentencing.
Murray filed a Motion for Reconsideration, in which he
emphasized that the Probation Office had since retracted the first
four proposed conditions. The District Court denied this motion, but
also stated that it was amending its prior Order “to include the
granting of the Second Supplemental Petitions on Supervised
Release.” App. 12. Unfortunately, the import of this statement is
unclear. Arguably, by granting the Second Supplemental Petitions,
the Court could be said to have vacated the first four proposed
conditions. As a practical matter, however, Murray‟s counsel
represented to this Court at oral argument that Murray has been
subject to at least Condition One, relating to polygraph testing.
Thus, we will assume for the purposes of this opinion that the
District Court never retracted the first four conditions.
Murray timely appealed from both District Court Orders.
II.
Murray‟s case was transferred to the Western District of
Pennsylvania for oversight of his supervised release. Thus, the
District Court had jurisdiction pursuant to 18 U.S.C. § 3605 (transfer
of jurisdiction over a releasee) and 18 U.S.C. § 3583(e)
(modification of supervised release conditions). We have appellate
jurisdiction pursuant to 28 U.S.C. § 1291.
III.
Generally, we “review challenges to the imposition of a
special condition of supervised release, as well as a district court‟s
decision to modify the terms of release, for abuse of discretion.”
8
United States v. Smith, 445 F.3d 713, 716 (3d Cir. 2006); see also
United States v. Miller, 594 F.3d 172, 183 n.6 (3d Cir. 2010).
A.
18 U.S.C. § 3583(e)(2) provides that a court may, after
considering the factors set forth in 18 U.S.C. § 3553(a),
modify, reduce, or enlarge the conditions of supervised release, at
any time prior to the expiration or termination of the term of
supervised release, pursuant to the provision of the Federal Rules of
Criminal Procedure relating to the modification of probation and the
provisions applicable to the initial setting of the terms and conditions
of post-release supervision.
The relevant Federal Rule of Criminal Procedure, Rule
32.1(c), further provides that an individual‟s supervised release
conditions may not be modified unless the court holds a hearing and
allows him to attend with counsel and make arguments in favor of
mitigation.4 The Advisory Committee Notes to Rule 32.1(b) add
that, “[p]robation conditions should be subject to modification, for
the sentencing court must be able to respond to changes in the
probationer‟s circumstances as well as new ideas and methods of
rehabilitation.”
B.
Murray argues that, because it is undisputed that he did not
violate his original conditions of supervised release, the District
Court was required to find that new or unforeseen circumstances had
4
A hearing is not required if the individual waives it or if the
relief sought is favorable to the individual and the government does
not object. Fed. R. Crim. P. 32.1(c)(2).
9
arisen that justified the modification. He says that the District
Court‟s decision to the contrary “is inconsistent with,” among other
things, “the fundamental principle of finality in the federal criminal
justice system” and the Advisory Committee notes to Rule 32.1,
which make reference to changes in the releasee‟s circumstances.
Appellant‟s Br. 28. The Government responds that “numerous cases
have rejected the proposition that „changed circumstances‟ are a
prerequisite to modifying a defendant‟s terms of supervised release.”
Appellee‟s Br. 20. In the alternative, the Government argues that
“Murray‟s „transfer of jurisdiction‟ was a sufficient „changed
circumstance‟ to warrant the modifications of [his] release terms.”
Id.It is an open question in our Circuit whether a district court
must find new or unforeseen circumstances before it may modify a
person‟s conditions of supervised release. See United States v.
Garrasteguy, 559 F.3d 34, 43 n.12 (1st Cir. 2009) (describing
United States v. Smith, 445 F.3d 713 (3d Cir. 2006), as having left
open the question of whether “significantly changed or extraordinary
circumstances are [a] prerequisite to modification”). Indeed, there
appears to be a split among our sister circuits on this issue.
Compare United States v. Miller, 205 F.3d 1098, 1101 (9th Cir.
2000) (holding that “Miller [had] allege[d] a type of changed
circumstance that, if true, may justify judicial modification of a
defendant‟s supervised release.”), and United States v. Lussier, 104
F.3d 32, 36 (2d Cir. 1997) (“Section 3583(e) provides the district
court with retained authority to . . . modify terms and conditions of
supervised release . . . in order to account for new or unforeseen
circumstances.”), with United States v. Begay, 631 F.3d 1168, 1170-
71 (10th Cir. 2011) (“Although Begay asks us . . . to limit the district
court‟s authority to modify special conditions of supervised release
to only those cases where the government can show a change in
circumstances, we refuse to impose that limitation on the district
10
court‟s authority.”), and United States v. Davies, 380 F.3d 329, 332
(8th Cir. 2004) (“A district court may modify the conditions imposed
on a term of supervised release even when . . . the modification is
based only on evidence that was available at the original sentencing.
This is because the statute that authorizes district courts to modify
the conditions of supervised release does not require new evidence,
nor even changed circumstances in the defendant‟s life.”).
There is a risk, however, of overstating the degree to which
our sister circuits are actually in conflict. Neither the Ninth nor the
Second Circuit has gone so far as to describe a showing of new or
unforeseen circumstances as necessary or as a prerequisite to
modification. Thus, we might say that these courts have merely
described conditions that are sufficient, but not necessary, to justify
modification. Notably, the Second and Ninth Circuits were writing
in response to petitions by individual releasees who wished to see
their conditions of supervised release reduced, while the Eighth and
Tenth Circuits were responding to petitions by the Government. It
may be that courts are particularly wary of giving releasees another
avenue to challenge their sentences, and have thus required them to
make a threshold showing of new or unforeseen circumstances. At
the same time, nothing in the statutory scheme suggests that it
should be easier for the Government to make release terms more
stringent than it is for the individual to receive mitigation. Thus,
whatever rule is promulgated will apply equally to the Government
and individual defendants.
We note that the statute that permits modification of
supervised release terms, 18 U.S.C. § 3583(e)(2), makes no mention
of any new or changed circumstances requirement—an omission
which leads us to doubt that such a requirement exists.
Nevertheless, we need not resolve this circuit split today. Even
assuming that a threshold showing of changed circumstances is
11
required, the Government has met its burden. Specifically, as a
matter of plain language interpretation, Murray‟s move to a new
jurisdiction constituted a “new circumstance.” This change
permitted the District Court to consider the Government‟s petition
for modification of Murray‟s release conditions. Although Murray
insists that his move was not a “changed circumstance[] specific to
[him] which affect[s] general punishment aims such as deterrence or
rehabilitation,” we disagree. Appellant‟s Br. 42-43. When a
releasee moves to a new area, various sentencing factors might be
implicated. For example, the conditions of supervised release
imposed by the sentencing court must reflect the need “to provide
the defendant with needed educational or vocational training,
medical care, or other correctional treatment in the most effective
manner.” 18 U.S.C. § 3553(a)(2)(D). If a district court sets as a
condition of supervised release the requirement that an individual
must attend a specialized mental health program for sex offenders,
and that individual then moves to a rural area where no such
program is offered, the court might reasonably respond by
modifying the releasee‟s conditions to reflect the rehabilitation
programs that are available. Whether Murray‟s move necessitated
similar adjustments to his release conditions was a question that the
District Court properly considered.
We therefore turn to the question of whether the particular
modifications that were imposed in this case were appropriate.
C.
18 U.S.C. § 3583(d) authorizes a sentencing court to impose a
condition of supervised release “to the extent that such condition—
(1) is reasonably related to the factors set forth in [18 U.S.C. §
3553(a)]; [and] (2) involves no greater deprivation of liberty than is
reasonably necessary for the purposes set forth in section [3553(a)].”
12
18 U.S.C. § 3583(d)(1) & (2). The specific 3553(a) factors that
must be considered are: “the nature of a defendant‟s offense and the
defendant‟s history and characteristics; the need for adequate
deterrence; the need to protect the public from further crimes of the
defendant; and the need to provide the defendant with correctional
treatment including vocational training or medical care.” United
States v. Miller, 594 F.3d 172, 183 (3d Cir. 2010). “Notably, in
addition to the sentencing goals enumerated, § 3553(a) also requires
parsimony—that „[t]he court impose a sentence sufficient, but not
greater than necessary.‟” United States v. Albertson, 645 F.3d 191,
197 (3d Cir. 2011).
“[W]e review the reasonableness of a supervised release term
against the § 3553(a) factors, recognizing that the primary purpose
of supervised release is to facilitate the integration of offenders back
into the community rather than to punish them.” Albertson, 645
F.3d at 197 (internal quotation marks omitted). “Congress intended
supervised release to assist individuals in their transition to
community life.” United States v. Johnson, 529 U.S. 53, 59 (2000).
Thus, “supervised release fulfills rehabilitative ends, distinct from
those served by incarceration.” Id. Importantly, “[s]upervised
release . . . is not punishment in lieu of incarceration,” United States
v. Granderson, 511 U.S. 39, 50 (1994), but rather is primarily
concerned with “facilitat[ing] the reintegration of the defendant into
the community.” United States v. Vallejo, 69 F.3d 992, 994 (9th Cir.
1995). Indeed, it is notable that “the only [traditional sentencing]
factor not relevant to a court‟s decision of whether to impose
supervised release . . . is „the need for the sentence imposed to
reflect the seriousness of the offense, to promote respect for the law,
and to provide just punishment for the offense.‟” U.S. Sentencing
Comm‟n, Federal Offenders Sentenced to Supervised Release 8-9
(2010) (quoting 18 U.S.C. § 3553(a)(2)(A)). This omission
reinforces the idea that the primary purpose of supervised release is
13
to facilitate the reentry of offenders into their communities, rather
than to inflict punishment. See S. Rep. No. 98-225, at 124 (1983),
reprinted in 1984 U.S.C.C.A.N. 3182, 3307 (explaining that the goal
of supervised release is “to ease the defendant‟s transition into the
community after the service of a long prison term for a particularly
serious offense, or to provide rehabilitation to a defendant who has
spent a fairly short period in prison . . . but still needs supervision
and training programs after release”).
“We have consistently required that district courts explain
and justify conditions of supervised release.” Miller, 594 F.3d at
184. “[I]t is . . . important that district courts provide courts of
appeals with an explanation sufficient for us to see that the particular
circumstances of the case have been given meaningful consideration
within the parameters of § 3553(a).” United States v. Tomko, 562
F.3d 558, 568 (3d Cir. 2009) (en banc) (internal quotation marks
omitted). Nevertheless, we have held that “[a] sentencing court does
not have to discuss and make findings as to each of the § 3553(a)
factors if the record makes clear the court took the factors into
account in sentencing.” Id. at 568 (internal quotation marks
omitted). Thus, if we find that a district court has failed to make
clear why it imposed a particular condition of supervised release, we
may proceed in one of two ways. Either we may remand to the
district court for further explanation or we may affirm the condition
“if we can ascertain any viable basis for the . . . restriction in the
record . . . .” Miller, 594 F.3d at 184 (internal quotation marks
omitted).
In the instant case, the District Court believed that “there
[wa]s no meaningful difference between the proposed modifications
14
and the current conditions” of supervised release.5 App. 8-9. Based
on this misapprehension, it seemed to assume that little discussion of
how the proposed supervised release conditions comported with the
requirements of § 3553(a) was needed. Although it made the
conclusory statement that, “after considering the factors set forth in §
3553(a) we find that the requested conditions involve no greater
deprivation of liberty than is reasonably necessary for the purposes
set forth in 18 U.S.C. § 3553(a), as provided in 18 U.S.C. §
3583(d)(2),” it did not enumerate the § 3553(a) factors or apply them
to Murray‟s case. App. 9. In fact, the District Court‟s only
reference to any specific sentencing factor was its comment that “the
Probation Officer has not alleged that the existing conditions are
insufficient to further the legitimate statutory goals of deterrence,
protection of the public, and rehabilitation of the defendant.” Id. at
5.
Indeed, the District Court justified the imposition of the new
conditions largely on the ground that the changes would be
“positive” for Murray. Id. at 9. This was the case, it said, because
the “precision and comprehensiveness [of the new conditions]
add[ed] clear guidance for Mr. Murray and for the Probation Officer
tasked with enforcing the conditions.” Id. While clarity is no doubt
a virtue, it is not one of the sentencing factors enumerated in §
3553(a). Because the District Court offered no other explanation for
its conclusion that the new conditions “involve[d] no greater
5
Murray himself actually made somewhat the same
argument in his brief to the District Court. See App. 134 (“[T]he
Government has failed to identify any respect in which the
conditions to which Mr. Murray is already subject differ in any
meaningful way from the modification sought or how this has
created any difficulty whatsoever with the supervision of Mr.
Murray.”).
15
deprivation [of liberty] than is reasonably necessary for the purposes
set forth in section [3553(a)],” 18 U.S.C. § 3583(d)(2), our review of
its opinion is made significantly more challenging.
While we may still affirm the District Court if we are able to
ascertain a viable basis for the new conditions in the record, we are
unable to do so on the facts before us. At the outset, we are unclear
why the District Court elected to impose the four proposed
supervised release conditions that the Probation Office had conceded
were inappropriate in Murray‟s case. (In fact, as described above, it
is possible that the District Court actually intended to vacate those
conditions, but its Order was unclear in this regard.) Moreover, it
seems that the prior conditions were successfully meeting the goals
of § 3553(a) in that they were deterring Murray from committing
additional crimes, providing him with needed mental health
counseling, and protecting the public. Thus, to the extent that the
District Court effectively made Murray‟s supervised release
conditions more restrictive, some explanation of why this was
necessary would have been helpful. For these reasons, we will
vacate the Orders imposing the nine new conditions of supervised
release, and remand this case to the District Court for further
proceedings consistent with this opinion.
D.
We thus ask the District Court to more clearly explain why
these new release conditions are no greater than necessary to satisfy
the § 3553(a) sentencing factors. For example, if the District Court
meant to leave Condition Three (possession of sexually explicit
material) in place, despite the Probation Office‟s effort to have it
16
removed,6 the Court should be aware that “there are First
Amendment implications for a ban that extends to explicit material
involving adults.” United States v. Voelker, 489 F.3d 139, 151 (3d
Cir. 2007). Hence our case law has “recognize[d] that a term of
supervised release restricting access to adult sexually oriented
materials must be „narrowly tailored,‟ i.e., that the restriction must
result in a benefit to public safety.” United States v. Thielemann,
575 F.3d 265, 273 n.15 (3d Cir. 2009) (citing United States v. Loy,
237 F.3d 251, 266 (3d Cir. 2001)); see also United States v. Voelker,
489 F.3d 139, 150 (3d Cir. 2007) (“Although „the District Court
could, perfectly consonant with the Constitution, restrict [an
offender‟s] access to sexually oriented materials,‟ such a restriction
must have a nexus to the goals of supervised release. We are unable
to find any such nexus here, and the District Court‟s failure to
explain its reasons makes our review all the more difficult.” (quoting
Loy, 237 F.3d at 267)). Thus, we must ask the District Court to
provide an explanation for the imposition of Condition Three
sufficient to show that it is narrowly tailored and related to the goals
of supervised release.
As another example, Condition Nine (workplace searches),
has elicited strenuous objection from Murray and warrants
discussion by the District Court on remand. Condition Nine requires
6
We have had some difficultly discerning the Government‟s
position with respect to certain release conditions that are at issue in
this case. While in its Second Supplemental Petition before the
District Court, the Probation Office clearly stated that it wished to
retract Conditions One through Four because they “would not be
appropriate in this case,” App. 104, at oral argument before this
Court the Government stated that it would defend Conditions One,
Two, and Four. Puzzling out the Government‟s arguments is a task
we will leave for the District Court on remand.
17
Murray to “submit his . . . place of employment[] to a search,
conducted by a United States probation/pretrial services officer at a
reasonable time and in a reasonable manner, based upon reasonable
suspicion of contraband or evidence of a violation of a condition of
supervision.” App. 59. It further states that Murray shall “inform
any other residents that the premises may be subject to searches
pursuant to this condition.” Id. Murray notes that Condition Nine
does not define “place of employment,” nor is the prospective search
limited to his personal workspace. He argues that this condition
“will render [him] virtually unemployable as it is inconceivable that
any employer would hire an employee knowing [that this] gives the
government carte blanche to search the employer‟s place of
business—be it a personal residence or a private office—without
limitation.” Appellant‟s Br. 53 n.5. We do not need to rule on these
arguments at this juncture, but the District Court should address
them, providing sufficient explanation of its decision to enable us to
understand its rationale. If Condition Nine is to remain in place, the
arguments Murray has made—which are not frivolous, even if they
may not persuade the District Court— ought to be addressed in a
manner that will permit appellate review.
IV.
For the reasons described herein, we will remand the case to
the District Court. On remand, the Court should carefully consider
the 18 U.S.C. § 3553(a) factors and impose only those of the
Government‟s requested supervised release conditions that involve
no greater deprivation of liberty than is reasonably necessary to
achieve the purposes set forth in section 3553(a). The Court should
provide explanations for its conclusions, as appropriate.
18