United States v. George McLeod, III ( 2020 )


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  •                                      PUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 18-6423
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    GEORGE MCLEOD, III, a/k/a Pimp Stick Quezzy,
    Defendant - Appellant.
    Appeal from the United States District Court for the District of South Carolina, Columbia.
    Cameron McGowan Currie, Senior District Judge. (3:12-cr-00329-CMC-1)
    Submitted: May 29, 2020                                        Decided: August 27, 2020
    Before GREGORY, Chief Judge, and MOTZ and AGEE, Circuit Judges.
    Dismissed by published opinion. Judge Motz wrote the opinion, in which Chief Judge
    Gregory joined. Judge Agee wrote an opinion concurring in the judgment.
    Maya M. Eckstein, Joshua Hanbury, Richmond, Virginia, Nicholas D. Stellakis, HUNTON
    ANDREWS KURTH LLP, Boston, Massachusetts, for Appellant. Sherri A. Lydon, United
    States Attorney, T. DeWayne Pearson, Assistant United States Attorney, OFFICE OF THE
    UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.
    DIANA GRIBBON MOTZ, Circuit Judge:
    George McLeod III pleaded guilty to two counts related to his role in a commercial
    sex operation and received a sentence of 70 months’ imprisonment and five years’
    supervised release. As a condition of supervised release, the district court required that he
    register as a sex offender. McLeod did not appeal any portion of his sentence. Upon
    completion of his term of imprisonment, McLeod moved, pursuant to 
    18 U.S.C. § 3583
    (e)(2), to modify the conditions of his supervised release, contending that the sex
    offender registration condition was illegal as applied to his offense of conviction. When
    the district court denied the motion, he noted this appeal. For the reasons that follow, we
    dismiss the appeal.
    I.
    In 2013, the Government charged McLeod in a multicount second superseding
    indictment, alleging that he operated an escort service that offered women for commercial
    sex and, as part of his activities, recruited a minor to cross state lines to work for him.
    McLeod assertedly obtained false identification for the minor to facilitate her employment
    at a strip club, where she solicited clients for sex.
    Pursuant to a written agreement, McLeod pleaded guilty to one count of interstate
    transportation for the purpose of prostitution (Count 7) and one count of aggravated identity
    2
    theft (Count 6). 1 The plea agreement made no reference to a requirement that McLeod
    register as a sex offender.
    During the plea colloquy, the Government noted that McLeod’s plea “to Count
    Seven [interstate transportation for the purpose of prostitution] may require registry on the
    sex offender registry.” The district court then confirmed that McLeod understood that “it
    is possible that if you plead guilty, you may have to register as a sex offender” pursuant to
    the Sex Offender Registration and Notification Act (SORNA).
    At sentencing, the court noted that McLeod “had indicated earlier you might want
    to challenge the applicability of that particular sex offender registration and supervised
    release period.” It recognized that, at the plea colloquy, it had not correctly advised
    McLeod of either the length of supervised release or properly counseled him that he would
    be required to register as a sex offender. The court further stated that, after the presentence
    report disseminated the correct information, the court notified counsel of these issues.
    Upon explaining the sex offender registration requirement, the court addressed McLeod
    directly:
    So, let me ask you, Mr. McLeod, those two issues that weren’t correctly
    stated at the time of your guilty plea — one was that that supervised release
    period range is from a minimum of five years to a maximum of life, and [the
    other] that the sex offender registration applies to this conviction, you have
    1
    Count 7 involved conduct between April 2010 and August 2011, but the indictment
    on this count did not reference the minor and the Government apparently told the court that
    Count 7 was not intended to and in fact did not include conduct related to the minor.
    McLeod maintained that the minor victim did not meet him until September 2011 and had
    no connection with Count 7. At sentencing, the district court sustained McLeod’s objection
    that, for purposes of calculating McLeod’s Sentencing Guidelines range, conduct involving
    the minor was not “relevant conduct” with respect to Count 7. Consequently, the district
    court struck several paragraphs of the presentence report.
    3
    now been told that, is it your wish to go forward and affirm your guilty plea,
    or do you wish to withdraw your guilty plea?
    McLeod answered that he wished to affirm the guilty plea and verified he had spoken with
    counsel about the matter. The district court then sentenced McLeod to 70 months’
    imprisonment and five years’ supervised release. As a condition of supervised release, the
    court required that McLeod register as a sex offender.
    In 2018, after being released from prison but while still on supervised release,
    McLeod filed a pro se motion pursuant to 
    18 U.S.C. § 3583
    (e)(2) asking the district court
    to eliminate the requirement that he register as a sex offender because, he argued, the
    offense for which he was convicted did not qualify as a sex offense as defined by SORNA.
    The district court denied the motion on the merits. Agreeing with McLeod that his
    conviction on Count 7 (interstate transportation for the purpose of prostitution) was not a
    sex offense requiring registration because it involved consenting adults, the court explained
    that McLeod nonetheless was required to register based on his conviction on Count 6
    (aggravated identity theft), because that crime constituted a “specified offense against a
    minor.” 
    34 U.S.C. § 20911
    (5)(A)(ii) (defining “sex offense” to include “a criminal offense
    that is a specified offense against a minor”). McLeod timely noted this appeal.
    II.
    McLeod’s plea agreement contains a provision waiving “the right to contest either
    the conviction or the sentence in any direct appeal or other post-conviction action,
    including any proceedings under 
    28 U.S.C. § 2255
    .” The Government contends this waiver
    4
    bars our consideration of this appeal. Whether a defendant’s waiver is enforceable presents
    a question of law we review de novo. United States v. Manigan, 
    592 F.3d 621
    , 626 (4th
    Cir. 2010).
    We generally enforce an appeal waiver if the Government timely seeks enforcement
    of a waiver that it has not breached, the waiver is valid (that is, the waiver is the result of a
    knowing and intelligent decision to forgo the right to appeal), and the challenge is within
    the scope of the waiver. See United States v. Blick, 
    408 F.3d 162
    , 168–69 (4th Cir. 2005);
    see also United States v. Attar, 
    38 F.3d 727
    , 731–33 (4th Cir. 1994).
    McLeod argues that his challenge is not within the scope of the waiver because it
    assertedly does not encompass motions under 
    18 U.S.C. § 3583
    (e)(2). The Government
    argues that McLeod’s challenge clearly is within the scope of McLeod’s broad waiver of
    his right to “contest either the conviction or the sentence in any direct appeal or other
    postconviction action” (emphases added).
    Even assuming McLeod’s challenge lies within in the scope of the waiver, however,
    we cannot enforce it. This is so because even “[a]n express knowing waiver will not bar
    appeal of a sentence when the sentence was . . . imposed in excess of the maximum penalty
    provided by law.” United States v. Brown, 
    232 F.3d 399
    , 403 (4th Cir. 2000); see also
    United States v. Beck, 
    957 F.3d 440
    , 445 (4th Cir. 2020); United States v. Marin, 
    961 F.2d 493
    , 496 (4th Cir. 1992).
    Thus, in United States v. Broughton-Jones, 
    71 F.3d 1143
     (4th Cir. 1995), we refused
    to enforce a waiver when the defendant challenged her restitution order, imposed pursuant
    to the Victim and Witness Protection Act, 
    18 U.S.C. § 3663
    –64 (VWPA), on the ground
    5
    that the VWPA did not permit restitution for her offense of conviction.            We held,
    “[b]ecause a restitution order imposed when it is not authorized by the [underlying statute]
    is no less ‘illegal’ than a sentence of imprisonment that exceeds the statutory maximum,
    appeals challenging the legality of restitution orders are similarly outside the scope of a
    defendant’s otherwise valid appeal waiver.”        
    Id. at 1147
    .   A restitution order, like
    supervised release, is a part of a defendant’s criminal sentence. See United States v. Grant,
    
    715 F.3d 552
    , 554 (4th Cir. 2013). Here, McLeod maintains that the district court exceeded
    its authority under SORNA by requiring registration based on his offense, just as
    Broughton-Jones asserted that the district court exceeded its authority under the VWPA in
    imposing a restitution order based on her offense. We can see no difference for these
    purposes between a restitution order that is allegedly unauthorized by statute and a
    registration requirement that is allegedly unauthorized by statute. We so held in an
    unpublished opinion. See United States v. Sims, 410 F. App’x 666, 669–70 (4th Cir. 2011)
    (refusing to enforce an appeal waiver where a defendant alleged that requiring him to
    register as a sex offender was not authorized by law given his offense). As in that case,
    Broughton-Jones controls. Thus, we cannot enforce the appeal waiver.
    III.
    We turn to the Government’s contention that we must dismiss McLeod’s appeal
    because a motion pursuant to 
    18 U.S.C. § 3583
    (e)(2) cannot be used to challenge the terms
    or conditions of supervised release on the ground that they are unlawful.
    6
    A.
    Section 3583 concerns supervised release, a post-incarceration program intended
    “to assist individuals in their transition to community life.” United States v. Johnson, 
    529 U.S. 53
    , 59 (2000). When a sentencing court considers whether to impose a term of
    supervised release, and the duration and conditions of that release, § 3583(c) instructs the
    court to employ a slightly modified version of the general “framework for sentencing
    decisions” established by § 3553(a). United States v. Burden, 
    860 F.3d 45
    , 56 (2d Cir.
    2017). Section 3583(c) specifies that the court must consider the factors set forth in 
    18 U.S.C. § 3553
    (a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7). When
    a district court considers whether to modify or revoke a condition of supervised release,
    § 3583(e) authorizes the court to consider the same § 3553(a) factors enumerated in
    § 3583(c).
    These factors are: the circumstances of the crime; the history and characteristics of
    the defendant; the need for deterrence; protection of the public; provision of educational or
    vocational training, medical care, or other treatment; the kinds of sentence and the
    sentencing range established by the Sentencing Commission and Congress; the relevant
    policy statements of the U.S. Sentencing Commission; the need to avoid disparities among
    defendants with similar records and similar conduct of guilt; and the need to provide
    restitution to the victim. The invocation of these capacious factors in both subsections (c)
    and (e) signals that Congress intended to give district courts broad authority to impose,
    modify, and revoke conditions of supervised release, as necessary, tailored to the specific
    and individual circumstances of each defendant. See, e.g., United States v. Allen, 
    2 F.3d 7
    538, 539 (4th Cir. 1993) (recognizing broad authority of district courts to modify the
    conditions of release).
    B.
    McLeod’s motion for modification attacked the registration requirement on the
    ground that it was unlawful, using a motion under § 3583(e)(2) as a pathway to bring such
    a challenge presumably because other pathways (including a direct appeal) are now
    foreclosed.
    A number of courts have considered whether such a challenge is cognizable
    pursuant to § 3583(e)(2), and the majority have concluded that it is not. See, e.g., United
    States v. Faber, 
    950 F.3d 356
    , 358–59 (6th Cir. 2020); United States v. Gross, 
    307 F.3d 1043
    , 1044 (9th Cir. 2002); United States v. Hatten, 
    167 F.3d 884
    , 886 (5th Cir. 1999);
    United States v. Lussier, 
    104 F.3d 32
    , 34–37 (2d Cir. 1997); United States v. McClamma,
    676 F. App’x 944, 947–48 (11th Cir. 2017); United States v. Diggs, No. PX-15-0228, 
    2018 WL 3642742
    , at *2–3 (D. Md. July 31, 2018); United States v. Wilson, No. 5:96-cr-30056-
    1, 
    2018 WL 563846
    , at *1 (W.D. Va. Jan. 25, 2018). 2
    These cases generally draw on two arguments to conclude that asserted illegality
    does not provide a proper ground for a § 3583(e)(2) motion.           First, they interpret
    § 3583(e)’s enumerated factors as an exclusive list of the factors that the district court
    “may . . . consider[].” See, e.g., Lussier, 
    104 F.3d at 35
     (“Conspicuously absent from the
    2
    McLeod contends that Hatten has been called into question by United States v.
    Mendoza-Velasquez, 
    847 F.3d 209
     (5th Cir. 2017). Br. at 10. But the defendant in
    Mendoza-Velasquez did not challenge the legality of the condition at issue, only whether
    that condition was appropriate to his unique circumstances.
    8
    list of relevant considerations [in § 3582(e)] is the legality of the condition.”). 3 This
    interpretation is bolstered by the contrast between § 3583(e) and 
    18 U.S.C. § 3742
    (a)(1),
    the general provision authorizing appellate review of sentences, which authorizes
    defendants to seek review of an otherwise final sentence if it “was imposed in violation of
    law.”
    Second, these courts emphasize that permitting a challenge to the legality of a
    condition of supervised release would undermine the overall “scheme of appellate and
    collateral review” established by Congress. Lussier, 
    104 F.3d at 36
    . Congress has
    provided multiple avenues for review of the legality of a sentence, most of which are time-
    limited — for example, direct appeals by a defendant must be taken within fourteen days,
    see Fed. R. App. P. 4(b), while habeas corpus petitions must be filed within one year, see
    
    28 U.S.C. § 2255
    (f). Allowing individuals to contest the legality of their original sentences
    at any time via a § 3583(e)(2) motion would allow an end run around these other detailed
    provisions providing appellate review of an original sentence. As the Ninth Circuit
    explained, “[i]t would frustrate Congress’s intent . . . to interpret § 3583(e)(2) to authorize
    a district court to modify or rescind an allegedly illegal condition.” Gross, 
    307 F.3d at 1044
    .
    3
    McLeod relies upon United States v. Webb, 
    738 F.3d 638
    , 641–42 (4th Cir. 2013).
    But in Webb, we only held that a district did not plainly err by reference to a non-
    enumerated § 3553(a) factor in imposing a revocation sentence because this factor was
    intertwined with the enumerated factors. This holding hardly constitutes an embrace of
    McLeod’s position in this case.
    9
    The Seventh Circuit has rejected this reasoning, holding that individuals may, in
    some circumstances, challenge the legality of a condition of supervised release pursuant to
    § 3583(e)(2), even long after the time for appellate review has ended. See United States v.
    Neal, 
    810 F.3d 512
    , 518 (7th Cir. 2016). The Seventh Circuit reasoned that allowing such
    actions is consistent with the text of the statute because the enumerated § 3553(a) factors
    do not constitute an exclusive list of factors the district court may consider, and because
    the statute authorizes modification “at any time.” Moreover, it concluded that such an
    interpretation is in keeping with Congress’s intent that supervised release serve primarily
    rehabilitative purposes. Id. at 516, 518–20.
    Although the Seventh Circuit did not articulate its rationale in these terms, its
    analysis seems to rest on the different role that finality plays in effectuating congressional
    policies when considering terms of imprisonment rather than terms and conditions of
    supervised release. While finality contributes to the punitive and incapacitating purposes
    of incarceration, finality can undermine the rehabilitative goals of supervised release by
    complicating a formerly incarcerated person’s transition back into society. Whereas
    Congress prioritized finality when it comes to terms of incarceration, as evidenced by the
    strict, time-limited provisions for appellate and collateral review of sentences, Congress
    has made a different policy choice when it comes to § 3583(e)(2), as evidenced by that
    statute’s authorization to file such motions “at any time.” Thus, as conditions of supervised
    release may be imposed years or even decades in advance of reentry, Congress chose in
    § 3583(e)(2) to enable successful reintegration by prioritizing flexibility (“at any time”)
    rather than finality.
    10
    There is, we believe, more common ground among the circuits than it might appear.
    On one hand, courts that prohibit using § 3583(e)(2) to challenge the legality of a condition
    of supervised release broadly recognize Congress’s prioritization of flexibility, squarely
    noting that changed circumstances would allow a court to modify a term of supervised
    release pursuant to § 3583(e)(2). See Faber, 950 F.3d at 359 (“Section 3583(e)(2) allows
    district courts to adjust supervised release conditions to account for new or unforeseen
    circumstances.”); United States v. Miller, 
    205 F.3d 1098
    , 1101 (9th Cir. 2000) (holding
    that a motion for modification pursuant to § 3583(e)(2) was proper in light of changed
    circumstances); Lussier, 
    104 F.3d at 36
     (“Section 3583(e) provides the district court with
    retained authority to revoke, discharge, or modify terms and conditions of supervised
    release . . . in order to account for new or unforeseen circumstances.”); see also United
    States v. Roberts, 229 F. App’x 172, 177, 178 (3d Cir. 2007) (recognizing that a direct
    challenge to the legality of a sentence would be “impermissible,” but that requests for
    modification or clarification based on “new or unforeseen circumstances” and challenges
    to the unreasonable or arbitrary application of conditions of supervised release were
    authorized).
    On the other hand, despite its more generous approach, the Seventh Circuit did not
    purport to hold that § 3583(e)(2) authorized every challenge to the legality of a condition
    of supervised release. It stated in no uncertain terms that § 3583(e)(2) cannot be used to
    raise forfeited procedural arguments. See Neal, 810 F.3d at 520 (“Examples [of barred
    challenges under Neal’s approach] would include arguments that the condition was not
    adequately explained or linked to the offense of conviction, or that evidence or other
    11
    information presented at the original sentencing did not provide sufficient support. . . .
    [T]hose sorts of procedural shortcomings must be raised at the first opportunity or not at
    all.”). And the Seventh Circuit agreed with the outcome in Lussier, explaining that
    § 3583(e)(2) should not be used to bring, in effect, a collateral challenge to a restitution
    order, “which would evade the detailed statutory scheme for orderly and timely appellate
    review of sentences, including restitution orders.” Id. at 517. And for good reason — the
    statutory scheme limits review not only to ensure finality, but to conserve judicial
    resources. Allowing an individual to challenge the legality of a condition of supervised
    release every time he conceived of a new argument would undermine judicial economy.
    There is agreement, then, that § 3583(e)(2) at least authorizes challenges on the basis
    of new or unforeseen developments. Conversely, the consensus is that there is some set of
    circumstances that do not provide a basis for challenging the legality of a condition of
    supervised release pursuant to § 3583(e)(2). These common principles make sense of
    Congress’s directives. An individual may not use § 3583(e)(2) as a substitute for an appeal,
    belatedly raising challenges to the original conditions of supervised release that were
    available at the time of his initial sentencing. On the other hand, although we cannot
    anticipate every situation in which a § 3583(e)(2) motion might provide an appropriate
    vehicle for reconsideration of the terms of supervised release, the statute at least provides
    an avenue for district courts to consider new, unforeseen, or changed legal or factual
    circumstances, including those that go to the legality of a sentence. This understanding
    properly effectuates the balance that Congress struck between finality and flexibility.
    12
    We note that the text of § 3583(e)(2) does not forbid a court from considering
    changed legal circumstances in modifying a term of supervised release. To be sure, that
    statute does not list legality among the permissible factors, but neither does § 3583(c), and
    no one would argue that § 3583(c) forbids a court from considering whether a condition of
    supervised release is lawful before imposing it.        We also note that changed legal
    circumstances easily fall within the cross-referenced § 3553(a)(6) factor, “the need to avoid
    unwarranted sentence disparities among defendants with similar records who have been
    found guilty of similar conduct.” A new legal rule will inevitably lead to disparities
    between individuals sentenced prior to the rule and those sentenced after it comes into
    effect. See United States v. Johnson, 
    228 F. Supp. 3d 57
    , 63–64 (D.D.C. 2017). Webb,
    
    738 F.3d 638
    , of course does not prohibit a district court from considering such disparities.
    Nor would permitting a district court to consider changed legal circumstances disrupt
    Congress’s scheme for appellate review. We agree with our friend in concurrence that
    allowing a court to reconsider the legality of supervised release at the time that it was
    imposed would frustrate congressional “‘intent to encourage timely challenges’ under
    [Fed. R. Crim. P.] 35(a).” Concurring Op. at 21 (quoting Faber, 950 F.3d at 358). But a
    challenge based on new legal circumstances could not have been brought at the time
    supervised release was imposed and so does not implicate this concern. 4
    4
    None of the cases that the concurrence cites hold otherwise. All considered legal
    challenges available at the time the court imposed the term of supervised release; they did
    not consider challenges based on changed legal circumstances. Moreover, those cases
    agree that “[s]ection 3583(e)(2) allows district courts to adjust supervised release
    conditions to account for new or unforeseen circumstances.” Faber, 950 F.3d at 359;
    accord, e.g., Lussier, 
    104 F.3d at 36
     (explaining that the defendant’s challenge “does not
    13
    Therefore, we apply the principles outlined above. Doing so, we can only conclude
    that McLeod’s current § 3583(e)(2) challenge is impermissible because it rests on the
    factual and legal premises that existed at the time of his sentencing. Having not objected
    at sentencing — even when the district court specifically drew his attention to this issue —
    and having failed to file a direct appeal, McLeod’s current challenge would undermine
    Congress’s detailed scheme of appellate and collateral review. The time for both an
    objection (which should be raised at sentencing) and a direct appeal (which must be filed
    within 14 days of the entry of judgment) has long since passed; McLeod may not use
    § 3583(e)(2) to evade this reality.
    IV.
    For the foregoing reasons, the appeal is
    DISMISSED.
    involve changed circumstances”). We see no reason to treat new legal circumstances
    differently from new factual circumstances.
    14
    AGEE, Circuit Judge, concurring in the judgment:
    As George McLeod, III, began to serve his term of supervised release in 2018, he
    moved under 
    18 U.S.C. § 3583
    (e)(2) for the district court to remove his condition of
    supervised release requiring him to register as a sex offender as directed by his probation
    officer. He contends this condition was illegally imposed because his underlying
    convictions do not satisfy the criteria that should have made him subject to registration. On
    appeal, McLeod asserts that § 3583(e)(2) is an appropriate vehicle for correcting this
    alleged error that occurred during sentencing.
    Because the majority opinion ultimately concludes that McLeod’s claim of illegality
    is not cognizable, I concur in the judgment and resulting dismissal of McLeod’s appeal. I
    write separately, however, because the text and history of 
    18 U.S.C. § 3583
    (e)(2) do not
    authorize a district court to modify a term of supervised release when the motion is based
    on the alleged illegality of a condition of supervised release. Accordingly, I disagree with
    the majority opinion’s rationale for its decision, which theorizes that some future petitioner
    could bring a successful § 3583(e)(2) motion based on the claim that a condition of
    supervised release is illegal.
    I.
    At the outset, I note my agreement with much of the majority opinion’s holding.
    Specifically, I take no issue with its recitation of what occurred in this case or with its
    decision not to rely on the appeal waiver as a basis for dismissing McLeod’s claim. My
    disagreement is limited to its conclusion that § 3583(e)(2) can be a vehicle to assert a claim
    15
    that a condition of supervised release is illegal. As ably and persuasively explained by six
    of the seven U.S. Courts of Appeals to consider this issue, neither the text nor history of
    the statute permit the majority opinion’s conclusion.
    A.
    When it enacted the Sentencing Reform Act of 1984 (“the Act”), Pub. L. No. 98-
    473, 
    98 Stat. 1987
    , Congress fundamentally “overhaul[ed] federal sentencing practices.”
    Tapia v. United States, 
    564 U.S. 319
    , 325 (2011). The Act “abandoned indeterminate
    sentencing and parole in favor of a system in which Sentencing Guidelines, promulgated
    by a new Sentencing Commission, would provide courts with ‘a range of determinate
    sentences for categories of offenses and defendants.’” 
    Id.
     In addition, the Act “channeled
    judges’ discretion by establishing a framework to govern their consideration and
    imposition of sentences.” Id.; see also Orrin G. Hatch, The Role of Congress in Sentencing:
    The United States Sentencing Commission, Mandatory Minimum Sentences, and the
    Search for a Certain and Effective Sentencing System, 
    28 Wake Forest L. Rev. 185
    , 186–
    92 (1993) (discussing what led a bipartisan majority of Congress to pass the Act, which
    “fundamentally alter[ed] our nation’s sentencing goals and practices,” and discussing its
    key features).
    One aspect of the Act was the creation of “supervised release” as “a new form of
    post-imprisonment supervision.” U.S. Sentencing Guidelines Manual, ch. 7, pt. A, intro.
    comment 2(b); 
    18 U.S.C. § 3583
    (a) (providing that district courts have discretion to
    “include as a part of the sentence a requirement that the defendant be placed on a term of
    supervised release after imprisonment”); S. Rep. No. 98-225, at 122–25 (1984), as
    16
    reprinted in 1984 U.S.C.C.A.N. 3182, 3305–08. When district courts order a defendant to
    serve a term of supervised release, the court can—and in some cases must—impose certain
    conditions of supervised release, as set out in 
    18 U.S.C. § 3583
    (d). See S. Rep. No. 98-225,
    at 124, as reprinted in 1984 U.S.C.C.A.N. at 3307. These conditions of supervised release
    encompass requirements such as not committing another crime, making restitution,
    undergoing treatment programs, registering under the Sex Offender Registration and
    Notification Act, undergoing drug testing, and other conditions that are consistent with
    articulated congressional goals. 
    18 U.S.C. § 3583
    (d).
    Section 3583(e)(2) authorizes district courts to modify (or remove) conditions of
    supervised release “after considering the factors set forth in section 3553(a)(1), (a)(2)(B),
    (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7)[.]” Courts may entertain a § 3583(e)(2)
    motion “at any time prior to the expiration or termination of the term of supervised
    release[.]” Id. § 3583(e)(2). 1
    The eight enumerated criteria Congress has instructed courts to consider when
    deciding whether to modify a condition of supervised release are:
    • “the nature and circumstances of the offense and the history and characteristics
    of the defendant”;
    1
    As the statute appears in context, § 3583(e)(2) provides:
    (e) . . . The court may, after considering the factors set forth in section
    3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7)—
    ....
    (2) . . . modify, reduce, or enlarge the conditions of supervised release, at any
    time prior to the expiration or termination of the term of supervised release[.]
    17
    • “the need for the sentence imposed—”
    o “to afford adequate deterrence to criminal conduct”;
    o “to protect the public from further crimes of the defendant; and”
    o “to provide the defendant with needed educational or vocational training,
    medical care, or other correctional treatment in the most effective
    manner;”
    • “the kinds of sentence and the sentencing range established for” the offense in
    the Sentencing Guidelines, along with any amendments to the Guidelines;
    • “any pertinent policy statement” by the Sentencing Commission, “subject to any
    amendments” made to it by Congress;
    • “the need to avoid unwarranted sentence disparities among defendants with
    similar records who have been found guilty of similar conduct; and”
    • “the need to provide restitution to any victims of the offense.”
    Id. § 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7).
    As is evident from the plain language of § 3583(e)(2), district courts are required to
    exercise their discretion to modify a condition of supervised release based on a balancing
    of these specific sentencing goals rather than on other factors, such as the underlying
    lawfulness of imposing the condition of supervised release. Indeed, nothing in the cited
    statutory language invokes the concept of illegality as a basis upon which to modify or
    remove a condition of supervised release under § 3583(e)(2). See United States v. Lussier,
    
    104 F.3d 32
    , 34, 35 (2d Cir. 1997) (“The plain language of [§ 3583(e)(2)] indicates that the
    illegality of a condition of supervised release is not a proper ground for modification under
    this provision . . . . Conspicuously absent from the list of relevant conditions is the legality
    of the condition.”).
    18
    B.
    Our decision in United States v. Webb, 
    738 F.3d 638
     (4th Cir. 2013), confirms that
    the eight enumerated § 3553(a) factors limit a district court’s basis for acting under
    § 3583(e). Id. at 641–42. In Webb, we held that a district court did not commit reversible
    error when it “mentioned” an “intertwined,” but unenumerated, § 3553(a) factor as part of
    its discussion of § 3583(e)’s enumerated § 3553(a) factors. Id. at 641. The defendant had
    argued that the court’s consideration of “statutorily prohibited factors” rendered his
    revocation sentence under § 3583(e) procedurally unreasonable. Id. at 639. We disagreed,
    observing that § 3583(e) “does not expressly prohibit a court from referencing other
    relevant factors omitted from the statute.” Id. at 641. But we also cautioned that “a district
    court may not impose a revocation sentence based predominately on the [unenumerated
    factor],” even though we held that “mere reference to such considerations [would] not
    render [it] procedurally unreasonable when those factors are relevant to, and considered in
    conjunction with, the enumerated § 3553(a) factors.” Id. at 642 (emphasis added).
    McLeod relies on Webb to contend that courts are not restricted to considering only
    the enumerated § 3553(e) factors when deciding a § 3583(e)(2) motion. But as the majority
    opinion recognizes, Webb’s modest holding “hardly constitutes an embrace of McLeod’s
    position in this case.” Maj. Op. at 9 n.3. That said, Webb also does more than the majority
    suggests: it supports the conclusion that illegality cannot serve as the basis for a district
    court’s decision under § 3583(e). Specifically, Webb recognized that § 3583(e)’s
    enumerated factors restricted courts from deciding whether to act “based predominately
    on” an unlisted consideration. Id. at 642 (emphasis added). A fortiori, § 3583(e)’s
    19
    enumerated factors restrict courts from deciding whether to act based exclusively on an
    unlisted consideration. And that’s what McLeod’s motion does: he contends that apart from
    any of § 3553(e)’s sentencing goals, the challenged condition of supervised release should
    be removed because it was illegally imposed in the first instance. Thus, McLeod’s claim
    rests exclusively on a factor not referenced in the enabling statute: § 3583(e)(2).
    Consequently, he is not entitled to relief under it. 2
    C.
    Supporting this textual understanding of § 3583(e)(2) is its contextual history as one
    part of the changes to a district court’s sentencing authority under the Act. Under the prior
    version of Federal Rule of Criminal Procedure 35(a), district courts could “correct an
    illegal sentence at any time.” Fed. R. Crim. P. 35(a) (“Rule applicable to offenses
    committed prior to Nov. 1, 1987: The court may correct an illegal sentence at any time[.]”);
    see United States v. Little, 
    392 F.3d 671
    , 677 (4th Cir. 2004) (discussing this pre-Act
    2
    Of course, defendants have other means of challenging a district court’s imposition
    of an allegedly illegal sentence, including an allegedly illegal condition of supervised
    release. In addition to moving for relief directly in the district court under Federal Rule of
    Criminal Procedure 35(a), defendants can seek relief in circuit courts as well, assuming
    they satisfy the statutory criteria for pursing that relief. Lussier, 
    104 F.3d at
    36–7. For
    example, a defendant can challenge the legality of any portion of his sentence—including
    imposition of any conditions of supervised release—on direct appeal or on collateral
    review under 
    28 U.S.C. § 2255
    . United States v. Hadden, 
    475 F.3d 652
    , 660 (4th Cir. 2007)
    (“Section 2255 provides federal prisoners a mechanism, beyond a direct appeal, for
    challenging the legality of their sentence.”).
    Although McLeod is likely barred at this point from pursuing other forms of relief,
    that does not alter the proper analysis of whether he can bring his claim via a § 3583(e)(2)
    motion. McLeod’s plea agreement waiver, as well as his choice not to timely seek relief
    under any of the above options by arguing the waiver was unenforceable against claims of
    illegality, are no grounds to allow an end-run around the congressionally constituted
    framework via a § 3583(e)(2) motion.
    20
    version of Rule 35(a)). But the Act set in motion a change to that authority, which now
    limits the time in which defendants can move to correct an illegal sentence to fourteen
    days. Fed. R. Crim. P. 35(a). In so doing, Congress “explicitly foreclosed the Rule 35(a)
    route for obtaining judicial review of an allegedly illegal sentence at any time.” Lussier,
    
    104 F.3d at 37
     (internal quotation marks and alterations omitted). At this same time,
    Congress enacted § 3583(e)(2), which delineated the circumstances when a district court
    was authorized to modify a condition of supervised release, required that decision to be
    based on consideration of the eight enumerated § 3553(a) factors, and omitted any
    reference to illegality as part of that authorization. See 
    18 U.S.C. § 3583
    (e)(2); S. Rep. No.
    98-225, at 124–25, as reprinted in 1984 U.S.C.C.A.N. at 3307–08 (stating that “subsection
    (e) permits the court, after considering the same factors considered in the original
    imposition of a term of supervised release, to . . . modify . . . the conditions of supervised
    release” (emphasis added)).
    As this historical context for § 3583(e)(2) indicates, Congress’ omission of a
    reference to illegality was “no oversight.” United States v. Faber, 
    950 F.3d 356
    , 358 (6th
    Cir. 2020). “Construing § 3583(e)(2) as allowing district courts to eliminate an allegedly
    illegal condition at any time would . . . frustrate Congress’s intent to encourage timely
    challenges” under Rule 35(a). Id. At bottom, “[t]he streamlined scheme of sentencing
    review established by the 1984 Act would be disrupted by the acceptance of [McLeod’s]
    interpretation of [§ 3583(e)(2)]” because “[n]othing in the text or legislative history of
    [§ 3583(e)] indicates that Congress intended to enact a mini version of the pre-1984 Rule
    21
    35(a) and make it applicable only to conditions of supervised release.” Lussier, 
    104 F.3d at 37
    .
    D.
    Lastly, I observe that all but one circuit court to consider this issue have similarly
    concluded that the straightforward textual and historical analysis described above means
    that the argument that a condition of supervised release could be modified because of its
    alleged illegality is not one of the circumstances that falls within § 3583(e)(2)’s scope. The
    Second, Fifth, Sixth, and Ninth Circuits have each held in published opinions that claims
    of illegality are not cognizable in a § 3583(e)(2) motion. Faber, 950 F.3d at 359; United
    States v. Gross, 
    307 F.3d 1043
    , 1044 (9th Cir. 2002) (“It would frustrate Congress’s intent
    if this court were to interpret § 3583(e)(2) to authorize a district court to modify or rescind
    an allegedly illegal condition.”); United States v. Hatten, 
    167 F.3d 885
    , 886 (5th Cir. 1999)
    (holding § 3583(e)(2) “do[es] not provide a jurisdictional basis for” modifying “the
    conditions of supervised release on the grounds of illegality”); Lussier, 
    104 F.3d at
    34–37. 3
    3
    Two additional circuit courts have held in unpublished decisions that challenges
    to the legality of a condition of supervised release are not cognizable in a § 3583(e)(2)
    motion. United States v. McClamma, 676 F. App’x 944, 948 (11th Cir. 2017) (per curiam)
    (concluding the absence of illegality or constitutionality on § 3583(e)(2)’s list of “which
    factors a district court must consider when reviewing a motion to modify a condition of
    supervised release” means that § 3583(e)(2) “may not be used to challenge the legality or
    constitutionality of” a condition); United States v. Nestor, 461 F. App’x 177, 179 (3d Cir.
    2012) (per curiam) (concluding the defendant should have challenged “the reasonableness
    and legality of the District Court’s original setting of the terms and conditions of his
    supervised release” “either on direct appeal or in his § 2255 motion,” and that he “may not
    now use [§ 3583(e)(2)] to gain review over issues which should have been raised in earlier
    proceedings”). And in a prior unpublished decision of this Court, we had effectively held
    the same. United States v. McMahon, 
    225 F.3d 656
    , 
    2000 WL 1039473
    , at *4 (4th Cir.
    2000) (unpublished table decision) (holding that the district court erred in granting the
    22
    To date, only one circuit court—the Seventh Circuit—has held that some claims
    based on the illegality of a condition of supervised released are cognizable in a § 3582(e)(2)
    motion. United States v. Neal, 
    810 F.3d 512
    , 516–20 (7th Cir. 2016). Thus, the circuit
    “split” unmistakably leans heavily toward the conclusion that illegality is not properly
    asserted in a § 3583(e)(2) motion to modify the conditions of supervised release. Moreover,
    the Seventh Circuit’s reasoning eschews a textual and historical understanding of the
    statute in favor of its view that Congress’ failure to include “illegality” as an enumerated §
    3583(e) factor was sufficient to authorize some claims of illegality. Id. at 518. In so doing,
    it purported to strike an “appropriate balance” between its agreement with much of the
    other circuits’ reasoning that § 3583(e)(2) should not be used to “evade the detailed
    statutory scheme for orderly and timely appellate review of sentences,” without completely
    foreclosing petitions from bringing “serious challenge[s] to the legality of a currently
    binding condition[.]” Id. at 517–20. This sort of non-textual policy-based approach to what
    claims are authorized under § 3583(e)(2) lacks grounding in the proper respect for statutory
    text and legislative history, and thus lacks persuasiveness.
    For the reasons described above, the text of § 3583(e)(2) limits the circumstances
    authorizing district courts to modify a condition of supervised release to the enumerated
    § 3553(a) sentencing factors. A general assertion as to the illegality of a condition is not
    one of those circumstances, so it cannot be a basis for granting § 3583(3)(2) relief.
    government’s motion to modify an illegal restitution order because § 3583(e)(2) did not
    authorize modification on this ground).
    23
    II.
    Because the majority opinion declines to adopt this understanding of when a court
    is authorized to modify a condition of supervised release under § 3583(e)(2), I cannot join
    its reasoning. However, because I conclude § 3583(e)(2) does not authorize modification
    based on an argument that the district court imposed an illegal condition of supervised
    release, I agree with ultimate result here: that § 3583(e)(2) does not authorize McLeod’s
    claim of illegality. Therefore, I concur in the Court’s judgment dismissing this appeal.
    24