United States v. Caillier ( 2023 )

Case: 22-30383 Document: 00516878800 Page: 1 Date Filed: 08/30/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
August 30, 2023
No. 22-30383 Lyle W. Cayce
____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
Larry Caillier II,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 6:10-CR-76-01
______________________________
Before King, Smith, and Elrod, Circuit Judges.
Jennifer Walker Elrod, Circuit Judge:
After pleading guilty to one count of receiving child pornography in
violation of 18 U.S.C. § 2252A(a)(2)(A), Larry Caillier II was sentenced to a
168–month term of imprisonment followed by a 15–year term of supervised
release. During Caillier’s term of supervised release, the district court
modified a number of the special conditions imposed. Caillier appeals,
challenging the district court’s jurisdiction to modify his supervised release
conditions, and contesting the substantive reasonableness of the conditions
imposed. Because the district court has jurisdiction under 18 U.S.C.
§ 3583(e)(2) to modify conditions of supervised release, and because the
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No. 22-30383
district court did not abuse its discretion in fashioning these conditions, we
affirm.
I
Caillier was released from prison on February 25, 2022, and began
serving his fifteen-year period of supervised release. Caillier’s original
conditions of supervised release included two special conditions: (1) Caillier
was required to participate in a sex offender treatment program; and
(2) Caillier was prohibited from having “access to a computer, or an
interactive computer service as directed by the United States Probation
Office.” Two months into Caillier’s term of supervised release, the United
States Probation Office petitioned the district court to modify his release
conditions as follows: (1) that Caillier participate in a sex offender treatment
program; (2) that he “not have Internet access on his personal computer,
PDA, or any other device, without the approval of the U.S. Probation Office”
and “[i]f internet access is granted, [Caillier] shall comply with the
requirements of the Computer Monitoring Program”; (3) that he submit to
polygraph testing as part of his therapeutic program; (4) that he not view or
possess any materials depicting or describing sexually explicit conduct or
child pornography; and (5) that he refrain from associating with any minor
unless the minor’s guardian is present, except for incidental contact in
normal commercial life.
The Probation Office petitioned for these modifications without
alleging that Caillier had violated the terms of his supervised release. The
district court held a hearing in which Caillier was represented by counsel and
heard Caillier’s objections regarding the modified conditions. The district
court ultimately granted the Probation Office’s petition over Caillier’s
objections, and modified Caillier’s terms of supervised release to include all
of the new conditions. Caillier appeals, arguing that: (1) the district court did
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not have jurisdiction to impose new supervised release conditions, and
(2) the new conditions of supervised release are substantively unreasonable.
II
Caillier contends that the district court lacked jurisdiction to modify
his conditions of supervised release because the change in circumstance that
precipitated the modification was a ruling that one of his conditions was
unconstitutional. Caillier’s argument makes two assumptions. First, that a
modification of supervised release conditions cannot be based on the illegality
of one of those conditions. Second, that the district court only has authority
to modify conditions of supervised release if there is a change in
circumstance.
A
Caillier’s first assumption—that district courts lack jurisdiction to
modify conditions based solely on the grounds that the conditions are
illegal—is correct.
District courts have jurisdiction to modify supervised release
conditions only for statutorily enumerated reasons, such as to ensure
deterrence or protect the public. 18 U.S.C. § 3583(e). Those reasons—a
subset of the factors considered during initial sentencing under § 3553(a)—
do not include a change in law holding one of the conditions illegal. See id.
§§ 3553(a), 3583(e).
We have held, in the context of a restitution order, that a district court
does not have jurisdiction to modify conditions of supervised release on the
grounds that those conditions were determined to be unlawful. United States
v. Hatten, 167 F.3d 884, 886 (5th Cir. 1999). We have previously relied on
Hatten to reject challenges to the legality of a condition of supervised release
brought under § 3583(e)(2). See, e.g., United States v. Zimmerman, 481 F.
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App’x 199, 201 (5th Cir. 2012) (“Zimmerman cannot challenge the legality
or constitutionality of the special conditions of his supervised release in a
§ 3583(e)(2) motion.”); Matthews v. United States, 378 F. App’x 451, 452
(5th Cir. 2010) (“[A] district court lacks jurisdiction under § 3583(e)(2) to
modify conditions of supervised release on grounds of illegality.”).
However, this case is unique in that it is the government, not Caillier,
that is allegedly using the § 3583(e)(2) motion as a vehicle to challenge an
allegedly unlawful condition.
We now clarify that a district court cannot modify an unlawful
condition under § 3583(e)(2) if the illegality of that condition is the basis for
modification, regardless of whether it was the defendant or government who
brought the motion challenging the conditions. See Hatten, 167 F.3d at 886(concluding that § 3585(e)(2) does not provide a jurisdictional basis for
modifying conditions on the grounds that the conditions were illegal, where
both the defendant and the government had sought modification of those
conditions). In the case at hand, however, Caillier’s appeal fails because the
government did not move for modification solely on the basis of illegality, and
the district court did not premise its ruling on the illegality of the special
condition.
According to Caillier, the Probation Office moved for modification of
the supervised release conditions because one of Caillier’s original special
conditions, the condition that barred him from all access to a computer, was
ruled unconstitutional. See Packingham v. North Carolina, 582 U.S. 98, 108
(2017). However, the Probation Office’s petition before the district court
contains a multitude of reasons for the modification. The Probation Office
stated that it sought modification of the terms of Caillier’s supervised release
to “allow the defendant to be granted monitored internet access, to bring the
conditions into conformity with current national and local U.S. Probation
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Office policies, . . . to assist the U.S. Probation Office to better monitor the
defendant, and to reduce potential risk to the community.” These stated
reasons are not only in line with the § 3553(a) factors, they also show that this
petition was not brought solely on the basis of the illegality of a condition.
Further, the district court did not base its ruling on the alleged
illegality. Rather, at the hearing on the petition the district court focused on
protecting the public. In making a modification determination the court is
required to consider “general punishment issues such as deterrence and
public safety[,]” and these deterrence and community safety issues were
discussed throughout Caillier’s hearing. Hatten, 167 F.3d at 886.
Therefore, the district court in this case had jurisdiction because its
ruling was based on public safety and general deterrence.
B
Caillier contends that even if the district court’s ruling was not based
on the illegality of a condition, the district court still lacked authority to
modify his conditions of supervised release because there was not a “change
in circumstance” that precipitated the modification nor was there a
“compelling cause” for the modification.
We have found no cases, and Caillier does not cite any, requiring a
“change in circumstance” or “compelling cause” to modify a condition of
supervised release. This argument is meritless given the language of
§ 3583(e)(2) allowing for modification of supervised release “at any time”
prior to its expiration or termination. We also note that the Second, Seventh,
Eighth, Ninth, and Tenth Circuits have all specifically held that a district
court can modify a defendant’s conditions of supervised release pursuant to
§ 3583(e)(2) even without a showing of changed circumstances. See United
States v. Parisi, 821 F.3d 343, 347 (2d Cir. 2016); United States v. Evans, 727
F.3d 730, 732 (7th Cir. 2013); United States v. Davies, 380 F.3d 329, 332 (8th
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Cir. 2004); United States v. Bainbridge, 746 F.3d 943, 950 (9th Cir. 2014);
United States v. Begay, 631 F.3d 1168, 1172 (10th Cir. 2011). The district court
thus had jurisdiction to modify Caillier’s supervised release conditions.
Accordingly, changed circumstances are not a jurisdictional requirement for
modification of a condition of supervised release.
III
Caillier also challenges the substantive reasonableness of the modified
supervised release conditions. When preserved, substantive reasonableness
challenges to conditions of supervised release are reviewed for abuse of
discretion. United States v. Ellis, 720 F.3d 220, 224 (5th Cir. 2013).
Unpreserved challenges to special conditions are reviewed for plain error.
United States v. Weatherton, 567 F.3d 149, 152 (5th Cir. 2009). We have
previously noted an ambiguity in our caselaw as to the appropriate standard
of review where a defendant moves for modification of his supervised release
conditions under § 3583(e)(2) without having first objected to the imposition
of the original conditions. United States v. Doyle, 865 F.3d 214, 214 n.1 (5th
Cir. 2017); United States v. Blank, 854 F. App’x. 559, 561 (5th Cir. 2021).
This case is distinguishable because the government, not Caillier, moved to
modify the conditions. Therefore, there is no concern that Caillier is raising
arguments in a § 3583(e)(2) motion that should have been argued at the
original sentencing. However, we need not resolve any potential ambiguity
because even under the less deferential abuse of discretion standard Caillier’s
challenges fail. “A district court abuses its discretion if it bases its decision
on an error of law or a clearly erroneous assessment of the evidence.” United
States v. Castillo, 430 F.3d 230, 239-40 (5th Cir. 2005) (internal quotation
marks omitted).
“A district court has wide discretion in imposing terms and conditions
of supervised release.” United States v. Winding, 817 F.3d 910, 914 (5th Cir.
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2016). The modifications need only be “reasonably related” to one of four
factors: (1) “the nature and circumstances of the offense and the history and
characteristics of the defendant”; (2) the need “to afford adequate
deterrence to criminal conduct”; (3) the need “to protect the public from
further crimes of the defendant”; and (4) 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.
§§ 3583(d)(1), 3553(a)(1) and (2)(B)-(D); United States v. Weatherton, 567
F.3d 149, 153 & n.1 (5th Cir. 2009) (explaining that a condition of supervised
release must be reasonably related to one, but not all, of the four factors). In
addition, a supervised release condition should not involve “a greater
deprivation of liberty than is reasonably necessary to achieve the latter three
statutory goals.” United States v. Paul, 274 F.3d 155, 165 (5th Cir. 2001); see
also 18 U.S.C. § 3583(d)(2).
Caillier focuses his briefing on the second special condition, which
concerns restricting and monitoring Caillier’s internet usage. Caillier asserts
that this restriction on his internet use is not reasonably related to any
§ 3553(a) factors because internet usage was not “in any way” involved in his
offense of conviction. We disagree. Given that Caillier used his cell phone
to exchange sexually explicit pictures with a minor, the district court had a
reasonable basis to conclude that monitoring Caillier’s internet-capable
electronic device would protect the public. See United States v. Sanchez, 842
F. App’x 885, 894 (5th Cir. 2021) (upholding an internet-monitoring
condition even where the defendant’s offense conduct did not involve the
internet, text messaging, or even electronic devices, stressing that “we give
great deference to the district court, which is most familiar with the details of
the defendant’s offense, history, and other relevant circumstances”).
Caillier further contends that this condition involving a restriction on
his internet access posed a greater deprivation of his liberty than was
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reasonably necessary under § 3583(d)(2). Again, we disagree given that the
restriction here was limited in both scope and duration.
Limiting the duration of a broad internet restriction is one way that a
court can narrowly tailor such a prohibition. This Court has upheld even
absolute internet bans, so long as the ban was limited in duration. E.g., United
States v. Paul, 274 F.3d 155, 157-58 (5th Cir. 2001) (affirming absolute ban on
internet and computer access for a period of three years); United States v.
Rath, 614 F. App’x 188, 194 (5th Cir. 2015) (affirming an absolute five-year
ban on internet access). The restriction in this case lasts longer (fifteen years)
than the absolute bans that this court has previously upheld, but that is not
dispositive, as the restriction here was not absolute—it was limited in scope.
The restriction at hand was not an absolute ban, its scope was limited
in that it allowed internet usage with the prior approval of the Probation
Office, and subject to the Probation Office’s continued monitoring.
Therefore, it did not “effectively preclude [Caillier] from meaningfully
participating in modern society.” United States v. Duke, 788 F.3d 392, 400
(5th Cir. 2015).
This Court has routinely upheld similar restrictions on internet and
computer usage in cases involving child pornography, as we see no reason
that the condition in Caillier’s case should be treated differently. See United
States v. Miller, 665 F.3d 114, 126 (5th Cir. 2011) (affirming twenty-five-year
ban on computer use absent probation office’s approval); United States v.
Ellis, 720 F.3d 220, 225 (5th Cir. 2013) (upholding prohibition on owning or
using a computer without prior approval of the court); United States v.
Halverson, 897 F.3d 645, 657 (5th Cir. 2018) (affirming a lifetime ban on
internet access absent advance approval from the probation office).
Caillier’s arguments regarding the remaining supervised release
conditions are meritless. Caillier does not dispute the reasonableness of the
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third condition; rather, he asserts that this polygraph testing would involve
“forced speech” and violate his Fifth Amendment rights against self-
incrimination. This court has rejected that argument. See United States v.
Willis, 651 F. App’x 291, 294 (5th Cir. 2021) (“We now hold that requiring
probationers to undergo polygraph examinations as a condition of their
supervised release does not violate the Fifth Amendment.”); United States v.
Locke, 482 F.3d 764, 767 (5th Cir. 2007) (rejecting challenge to a similar
special condition and concluding that “[t]he fact that the questions were
asked [to defendant] in the context of a polygraph test does not convert the
question-and-answer session into a Fifth Amendment violation”); Sealed
Appellee v. Sealed Appellant, 937 F.3d 392, 404-05 (5th Cir. 2019) (affirming
condition that required polygraph testing, and noting that a court is not
prohibited from including mandatory participating in polygraph testing “by
the mere fact that polygraph testing is not mentioned [in the Sentencing
Guidelines]”).
Caillier’s fourth condition, which prohibits him from viewing or
possessing “sexually explicit material,” is not unreasonable and does not
violate the First Amendment. See United States v. Ellis, 720 F.3d 220, 227
(5th Cir. 2013) (“Because [defendant’s] crime was sexual in nature it was
reasonable for the district court to restrict [the defendant’s] access to
sexually stimulating material more broadly in an effort to prevent future
crimes or aid in his rehabilitation.”); see also United States v. Chapman, 796
F. App’x 229, 231 (5th Cir. 2020) (affirming a condition that prohibited the
possession of adult pornography, noting that the prohibition played an
important role in the defendant’s sex offender treatment program).
Finally, Caillier’s fifth condition, which prohibits him from
associating with minors unless a parent or guardian is present, is reasonably
related to the § 3553(a) factors. This circuit has previously affirmed bans on
contact with children. See, e.g., United States v. Rodriguez, 558 F.3d 408,
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417-18 (5th Cir. 2009) (affirming a three-year prohibition on unsupervised
contact with children including the defendant’s own daughter); United States
v. Ellis, 720 F.3d 220, 225-26 (5th Cir. 2013) (upholding lifetime ban on
unsupervised contact with children, unless permission is granted by the
probation officer); United States v. Paul, 274 F.3d 155, 165-67 (5th Cir. 2001)
(upholding condition requiring defendant to avoid direct and indirect contact
with minors). The district court specified that this condition did not prohibit
Caillier’s incidental contact with minors in a commercial setting, but rather
applied only to non-commercial settings. The district court concluded that
this condition was justified in order to limit Caillier’s access to his girlfriend’s
minor children, given that his past conduct involved abusing a position of
trust (as a high school teacher), and he would be in a similar situation with
his girlfriend’s children.
Caillier’s modified supervised release conditions are all reasonably
related to the § 3553(a) factors. The district court did not abuse its discretion
in imposing any of the modified supervised release conditions. Accordingly,
the judgment of the district court is AFFIRMED.
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