UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JOEL THOMAS, Defendant - Appellant. No. 22-1149 (D.C. No. 1:19-CR -00397-CMA-1) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before PHILLIPS , McHUGH , and ROSSMAN , Circuit Judges.

________________ _________________ Joel Thomas, proceeding pro se, appeals the district court’s denial of his request to modify conditions of his s upervised release requiring sex offender treatment and keystroke monitoring of his el ectronic activities. The district court found that the nature and circumstances of Thomas’s child pornography offense, a psychologist report recommending further treatment and monitoring, and other

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### February 10, 2023 Christopher M. Wolpert Clerk of Court Appellate Case: 22-1149 Document: 010110811173 Date Filed: 02/10/2023 Page: 12 facts supported keeping the conditions in place. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. I. Background In 2019, Thomas pled guilty to one count of accessing child pornography with an intent to view in viola tion of 18 U.S.C. § 22 52A(a)(5)(B). He admitted that in 2012 and 2013, he accessed webs ites on the dark web that facilitated transmission of child pornography and discussions between pedophiles. His posts on the sites described his use of encryptio n technology to securely main tain his “entire collection [of child pornography] on one device.” R., vol. 1 at 31. Aut horities later found encrypted containers on Thom as’s computer but could not access their contents “[d]ue to the level of encryption.” Id. at 35. Authorities also discovered Thomas had installed software on his computer that en abled “the secure deletion of files and removal of remnant data.” Id. Thomas sought a below-gui delines sentence because he had abided by the law during the roughly six-year period between the government’s 2013 seizure of his computer and its 2019 indict ment, had begun sex addicti on therapy, and had started attending Sex Addicts Anonymous (SAA) mee tings. To support his request, Thomas underwent a mental health evaluation and submitted the results to the court. The evaluating psychologist reco mmended he undergo further sex offender treatment and that his digital activity be strictly monitored. In January 2020, the district court sentenced Thomas to a below-guidelines term of 48 months in prison, to be followed by five years of supervised release. The Appellate Case: 22-1149 Document: 010110811173 Date Filed: 02/10/2023 Page: 23 court imposed the following special conditi ons of supervision pertinent to this appeal: 1. You must participate in a nd successfully complete a sexoffense specific evaluation and/or treatment program as approved by the probation officer. . . .

. . . . 4. . . . Any computer or Internet capable device must be able to be effectively monitored by and comp ly with the requirements of monitoring software utilized by the Probation Office. . . .

. . . . 6. You must allow the pr obation officer to install software/hardware designed to m onitor computer activities on any computer you are authorized by th e probation officer to use. The software may record any and all activity on the computer, including the capture of keystrokes, applic ation information, Internet use history, email correspondence, and chat conversations. Id. at 47. Consistent with the appeal waiv er in his plea agreement, Thomas did not appeal. Thomas instead filed a motion in 20 22 to modify his supervised release conditions. Regarding special condition one, he asked the court to substitute his participation in SAA for the requirement that he undergo “a sex-offense specific evaluation and/or treatment program.” Id. He argued the spec ial condition mandated a “mental health treatment,” id. at 118, and that the court lacked a basis for imposing it because the evidence did not establis h he had a “mental health condition,” id. at 120. He contended the court could not dete rmine he needed ment al health treatment “unless a[n] exam [wa]s performed and a report [wa]s filed by a court ordered Appellate Case: 22-1149 Document: 010110811173 Date Filed: 02/10/2023 Page: 34 psychologist.” Id. at 118. And he asserted th at he did not need sex offender evaluation and treatment because he had volunt arily seen a therapist before he went to prison and planned to particip ate in SAA upon his release. Regarding special conditions four and six, Thomas asked the court to eliminate the requirement that he submit to keystroke monitoring of his electronic activity. He argued that he did not present a risk to public safety and that the goals of the monitoring could be adequately achieved through unannounced searches of his home and personal property. On March 29, 2022, the di strict court denied Thom as’s request to modify special conditions one, four, and six. Regarding special condition one, it reasoned the nature and circumstances of Thomas’s offense warranted se x offender evaluation and treatment, which the Sentencing Guide lines recommend for all sex offenders.
See U.S. Sent’g Guidelines Manual (USSG) § 5D1.3(d)(7)(A) (U.S. Sent’g Comm’n 2021). It also said Thomas’s refusal to pa rticipate in sex offende r treatment while in prison further supported spec ial condition one. Regardi ng special conditions four and six, the district court reasoned the natu re and circumstances of Thomas’s offense warranted keystroke monito ring, noting Thomas used a computer to commit his offense and employed sophisticated techni ques to evade detection. It further observed “the Sentencing Commission re commends limiting computer use or Appellate Case: 22-1149 Document: 010110811173 Date Filed: 02/10/2023 Page: 45 otherwise imposing monitoring of computer a nd Internet use in cases like this one.” R., vol. 1 at 152 (citing USSG § 5D1.3(d)(7)). 1 On April 8, 2022, Thomas filed a motion asking the district court to reconsider its order as to special conditions one, four, and six. In this motion, Thomas mostly re-hashed arguments from his initial motion. But he also argued the district court incorrectly found he had refuse d to participate in sex ther apy in prison, and that it exaggerated his technological exper tise to support its ruling. The district court denied Thomas’s mo tion for reconsideration by order entered April 28, 2022. It clarif ied that the psyc hologist report Thomas submitted at sentencing supported its initial imposition of special conditi on one and that Thomas’s voluntary participation in therapy and SAA, while laudable, did not support modification of special condition one. The dist rict court further f ound “no error in its previous statement that [Thom as] has declined . . . sex o ffender treatment” in prison, id. at 184, relying on a declaration submitted by a prison employee. And it reiterated its position that the circumstances su rrounding Thomas’s offense warranted imposition of special conditi ons one, four, and six. Thomas filed a notice of appeal on May 6, 2022.

1 In its order, the distri ct court also granted Thom as’s request to remove special conditions seven to eleven because those special conditions related to his finances and he paid his re stitution in full. The distri ct court’s removal of those special conditions is not at issue in this appeal. Appellate Case: 22-1149 Document: 010110811173 Date Filed: 02/10/2023 Page: 56 II. Discussion A. Orders on Appeal The government contends “Thomas appeal ed only the denial of his motion for reconsideration,” such that “t his [c]ourt has jurisdiction only to review the denial of reconsideration.” Aplee. Br. at vii –viii (citation omitted). We disagree. A notice of appeal must “designate the judgment—or the appealable order—from which the appeal is taken.” Fed. R. App. P. 3(c)(1)(B). But a “notice . . . need not be perfect.” Sines v. Wilner , 609 F.3d 1070, 1074 (10th Cir. 2010). We “liberally construe the requirements of Rule 3,” Smith v. Barry , 502 U.S. 244, 248 (1992), and Thomas’s pro se filings, see Sines , 609 F.3d at 1074. Thomas’s notice of appeal is not a model of clarit y regarding the order on appeal. But the notice references both the initial order denying Thomas’s motion to modify his supervised release conditions (by citing dist rict court docket entr y 61) and the order denying his motion for reconsideration (by citing district court docket entry 68 and the date of the order). We therefore conclude the no tice confers jurisdiction to review both orders. The government also contends that becau se Thomas did not file his notice of appeal until May 6, 2022, the notice was untim ely with respect to the district court’s March 29, 2022 order denying Thomas’s motion to modify his supervised release conditions. See Fed. R. App. P. 4(b)(1)(A)(i) (requi ring a notice of appeal to be filed within 14 days of the applicable order). We disagree. Thomas filed a timely motion for reconsideration on April 8, 2022, see United States v. Randall , 666 F.3d 1238, Appellate Case: 22-1149 Document: 010110811173 Date Filed: 02/10/2023 Page: 67 1242 (10th Cir. 2011), rendering th e March 29 order non-final. See United States v. Ibarra , 502 U.S. 1, 6–7 (1991). As a result, the time for Thomas to file a notice of appeal did not begin to run until the distri ct court entered its April 28, 2022 order denying the motion for reconsideration. See id. at 4–6 & n.2. And Thomas filed his notice of appeal within 14 days of that or der. His notice was therefore timely with respect to both orders.
B. Merits A district court has authority to “modify , reduce, or enlarge the conditions of supervised release, at any tim e prior to the expiration or termination of the term of supervised release.” 18 U.S. C. § 3583(e)(2). “The onl y statutory requirements for modification are that the district court cons ider [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)], follow the procedure outlined in Fed. R. Crim. P. 32.1, and ensure that the modified conditions are consistent w ith the requirements applicab le to all conditions of supervised release.” United States v. Begay , 631 F.3d 1168, 1172 (10th Cir. 2011). 2 “[A] district court retains the discretion to determine whether th ere are valid reasons

2 The enumerated § 3553(a) factors require the court to consider “the nature and circumstances of the offense and th e history and characteristics of the defendant”; the need “to affo rd adequate deterrence to cr iminal conduct”; the need “to protect the public from further crimes of the defendant”; the need “to provide the defendant with needed educational or vo cational training, medi cal care, or other correctional treatment”; “the [applicable ] kinds of sentence and the [applicable] sentencing range”; “any pertinent policy stat ement”; “the need to avoid unwarranted sentencing disparities”; and “the need to provide restitution.” Appellate Case: 22-1149 Document: 010110811173 Date Filed: 02/10/2023 Page: 78 to modify,” id. at 1173, and nothing in the statute “r equire[s] a district court to make particular findings” when deciding a motion to modify, id. at 1171. A district court can decide a motion to modify “based onl y on evidence that was available at the original sentencing.” Id. at 1172 (internal quota tion marks omitted). “[A] motion to reconsider may be gran ted when the court has misapprehended the facts, a party’s pos ition, or the law.” United States v. Warren , 22 F.4th 917, 927 (10th Cir. 2022) (interna l quotation marks omitted). “The specific grounds which allow granting such motions include (1) an intervening change in the controlling law, (2) new evidence previously unavailable, a nd (3) the need to co rrect clear error or prevent manifest injustice.” Id. (internal quotation marks omitted). We review the district court’s ruling on a motion to modify for an abuse of discretion. See United States v. Pugliese , 960 F.2d 913, 915 (10th Cir. 1992). “Likewise, we review the district court’s denial of a motion fo r reconsideration for abuse of discretion.” Warren , 22 F.4th at 927 (internal quotation marks omitted). “A district court abuses its disc retion only where it (1) commits legal error, (2) relies on clearly erroneous factual findings, or (3 ) where no rational basis exists in the evidence to support its ruling.” United States v. Alfred , 982 F.3d 1273, 1279 (10th Cir. 2020) (int ernal quotation marks omitted). “A district court does not abuse its discretion if its ruling falls within the bounds of permissible choice in the circumstances and is not arbitrar y, capricious, or whimsical.” United States v. Armajo , 38 F.4th 80, 84 (10th Cir. 2022) (internal quotation marks omitted). Appellate Case: 22-1149 Document: 010110811173 Date Filed: 02/10/2023 Page: 89 Many of Thomas’s arguments proceed fro m the premise that in denying his modification motion, the district court effe ctively re-imposed the special conditions of supervised release it had ordered at his sentencing. From this premise, Thomas presumes the district court ha d to satisfy the standards a pplicable to imposing special conditions of supervised release. 3 And he argues the district court erred because it failed to satisfy those st andards. Regarding special condition one, he argues the district court erred by fail ing to order a psycho-sexual evaluation before imposing it and by failing to sufficiently analyze the propriety of this special condition. Regarding special conditions f our and six, he argues the c onditions violate his Fourth Amendment rights and that th e district court erred by fa iling to provide sufficient reasons supporting their imposition.

3 In United States v. Martinez-Torres , this court explained that special conditions of supervised release must meet thr ee statutory tests. The conditions of release must (1) be “reasonably related” to the nature and circumstances of the o ffense, the defenda nt’s history and characteristics, the deterr ence of criminal conduct, the protection of the public from further crimes of the defendant, or the defendant’s educational, vocational, medical , or other correctional needs; (2) “involve[ ] no greater deprivati on of liberty than is reasonably necessary” for the purposes of deterr ing criminal activity, protecting the public, and promoting the defendant ’s rehabilitation; and (3) be consistent with any pertinent policy statements issued by the Sentencing Commission. 795 F.3d 1233, 1236 (10th Ci r. 2015) (alteration in or iginal) (quoting 18 U.S.C. § 3583(d)). And “before a district c ourt can impose upon a defendant a special condition of supervised releas e, the district court must analyze and generally explain how, with regard to the specific defenda nt being sentenced, the special condition furthers the three statut ory requirements set out in 18 U.S.C. § 3583(d).” United States v. Koch , 978 F.3d 719, 725 (10th Cir. 2020). Appellate Case: 22-1149 Document: 010110811173 Date Filed: 02/10/2023 Page: 910 We reject all these argum ents because the district court did not impose any special conditions of supervised release wh en it denied Thomas’s motion. The court had imposed the challenged special conditions of supervised releas e years earlier in its judgment that Thomas did not appeal. Thomas cannot now challenge the legality of those conditions or the proces s leading to their imposition. See Begay , 631 F.3d at 1172–73 (recognizing case la w holding that “a district court does not have the authority to modify conditions of superv ised release based on an argument that a particular condition is unlawful, because lawfulness is not one of the § 3553(a) factors listed in 18 U.S.C. § 3583(e)”; in stead, “any challenge to the legality of a condition of supervised releas e must be raised on direct appeal or in a habeas petition” (citing United States v. Lussi er, 104 F.3d 32, 34 (2d Cir. 1997)); see also United States v. Morris , 37 F.4th 971, 976 (4th Cir. 2022) (observing that challenges to conditions of supervised release “rest[ing] on the fact ual and legal premises that existed at the time of the defendant’s sentencing are im permissible” (brackets and internal quotation marks omitted)); United States v. Cordero , 7 F.4th 1058, 1070 (11th Cir. 2021) (“join[ing] the Second, Fifth, and Nint h Circuits in holding that § 3582(e)(2) cannot be used to challenge the legality or constitutionality of supervised release conditions”); United States v. Gross , 307 F.3d 1043, 1044 (9th Cir. 2002) (holding “§ 3583(e)(2) may not be used as a backdoor to challenge the legality of a sentence” (int ernal quotation marks omitted)). We now turn to Thomas’s arguments pe rtinent to modification. Regarding special condition one, Thomas argues the di strict court should have modified it Appellate Case: 22-1149 Document: 010110811173 Date Filed: 02/10/2023 Page: 1011 because (1) he had already undergone sex offender treatment and “[i]t would be irrational for him to complete the treatme nt again when the outcome would be the same,” Aplt. Reply Br. at 5; (2) his propos ed alternative of attending SAA meetings would be more effective; and (3) the ef fectiveness of his prior therapy and SAA attendance, as proven by his remorse and law abidance, renders other treatment unnecessary. He does not argue the district court committed legal error or based its ruling on an unsupported finding of fact. We conclude the district court did not abuse its discretion in refusing to modify special condition one in either order. The district court based its decision in part on the psychologist report Thomas subm itted in connection with his sentencing. That report recommended additional treatme nt beyond what Thomas had undergone already. The district cour t further based its decision on record evidence Thomas had foregone an opportunity to get treatment in prison. And th e district court implicitly rejected Thomas’s argument that hi s remorse and law abidance supported modification by finding the nature and circum stances of his offens e, combined with his history and characteristic s, continued to support sp ecial condition one, which the Sentencing Guidelines recommend in cases like this one. The district court’s reasoned application of the facts to deny bo th modification and reconsideration fell within the bounds of permissible choice. Regarding special conditions four and six, Thomas argues the district court should have eliminated keystroke monitori ng because he has expressed remorse and accepted responsibility for his actions, has not accessed child pornography since Appellate Case: 22-1149 Document: 010110811173 Date Filed: 02/10/2023 Page: 1112 2013, and is not a threat to the public. But he does not argue the district court committed legal error or relied on an unsupported finding of fact. We conclude the district court did not abuse its discretion in refusing to modify special conditions four and six in e ither order. The dist rict court found that the nature and circumstances of Thomas’s offense continued to support keystroke monitoring in part because Thomas “comm itted his offense solely through use of the computer and the Internet, and he demonstr ated sophisticated computer skills through his access of child pornography websites on th e dark web and his encryption of his laptop.” R., vol. 1 at 151. It also found support for keystroke monitoring in Thomas’s encouragement to “others on those websites to stay safe.” Id. at 152 (internal quotation marks omitted). And it further found support for this condition in the Sentencing Guidelines’ recommendation that child pornography offenders be subjected to monitoring. Again, the distri ct court’s reasoned app lication of the facts to deny both modification and reconsiderat ion fell within the bounds of permissible choice.
III. Conclusion We affirm the district court’s order denying Thomas’s motion for modification and the district court’s order denying Thomas’s motion for reconsideration.

Entered for the Court
Gregory A. Phillips Circuit Judge Appellate Case: 22-1149 Document: 010110811173 Date Filed: 02/10/2023 Page: 12