PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee

v. MICHAEL LYLE BLAIR, Defendant - Appellant. No. 18-1220

________________ _________________ Appeal from the United States District Court for the District of Colorado (D.C. No. 1:17-CR -00079-CMA-1)

________________ _________________ Kathleen Shen, Assistant Federa l Public Defender (Virginia L. G rady, Federal Public Defender with her on the brief) O ffice of the Federal Public De fender, Denver, Colorado, appearing for Defendant-Appellant. Paul Farley, Assistant United States Attorney (Jason R. Dunn, U nited States Attorney with him on the brief) Office of the United States Attorney, De nver, Colorado, appearing for Plaintiff-Appellee.

________________ _________________ Before BACHARACH , BALDOCK , and EBEL , Circuit Judges.

________________ _________________ EBEL , Circuit Judge.

________________ _________________ This case requires us to decide whether a special condition of supervised release that states that the “de fendant’s use of computers and Internet access devices FILED United States Court of Appeals Tenth Circuit 

### August 13, 2019
Elisabeth A. Shumaker Clerk of Court2 must be limited to those the def endant requests to use, and whi ch the probation officer authorizes,” R. V ol. I at 97, involves a “ greater deprivation of liberty than is reasonably necessary for” deterring criminal activity , protecting the public, and promoting a defendant’s rehabilitation in c ontravention of 18 U .S.C. §§ 3583(d)(2) and 3553(a)(2)(B)-(D). We conclude that this special condition vi olates these provisions because it allows the p robation office to completely ban the defendant’s use of the Internet by failing to place any restraints on a pro bation officer’s ability to restrict a defendant’s Interne t access. Thus, the special cond ition is impermissibly broad, and the district court a bused its discretion by imposing it. We vacate that challenged special condition and re mand to the district court t o reformulate it to conform with the dictates of t his opinion. Blair also challeng es the length of his sentence as substantively unreasona ble, but we disagree with th at challenge and accordingly we otherwise affirm his sentence.
I. BACKGROUND In 2013, the police searched Mic hael Blair’s home as part of an investigation that is unrelated to this case . During the search, the police discovered a hard drive belonging to Blair with more th an 700,000 images of child porno graphy on it. Ultimately, Blair was charged w ith and plead guilty to one coun t of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) an d (b)(2). Blair’s plea agreement anticipat ed that the district court woul d calculate his total offense level as twenty- eight, which would have resulted in an advisory guideline sentencing range of 78- 97 months’ imprisonment. Blai r waived his right to3 appeal any sentence within tha t guideline range. The probation office prepared a Presentence Investigation Report (PSR), which calculated Blair’ s total offense level as thirty-three. The five levels not anticipated by the plea a greement were added because, after Blair’s plea was entered, the government receive d statements from Blair’s younger sister a nd his son alleging that Blair had sexu ally abused them when they were minors. Blair denied those allegations, but the dist rict court heard testimony from both individuals a nd found them “very credible” and accordingly applied the five-level enhancem ent for a “patte rn of activity i nvolving the sexual abuse or exploitation of a minor.” U.S.S.G . § 2G2.2(b)(5). According to the sentencing guide lines, Blair’s total offense l evel of thirtythree and his category I criminal history resulted in an adviso ry guidelines sentencing range of between 135-168 months’ imprisonment. However, the ma ximum sentence Blair could receive under the st atute was 120 months, see 18 U. S.C.A. § 2252A(b)(2). Blair moved for a downward depa rture based on mitigating circum stances, including his age (63), physical health, me ntal illness, caretaker respon sibilities for his wife who is cognitively deficient, h istory of suffering abuse as a c hild, and history of military service. The district c ourt denied the motion and imp osed the statutory maximum sentence of t en years’ imprisonmen t plus seven years of supervised release. After calculating Blair’s sentenc e, the district court imposed, among several others, the following special cond itions of supervised release (Blair objects only to the underlined sentence):4 6. The defendant’s use of comput ers and Internet access devices must be limited to those the defendant re quests to use, and which the p robation officer authorizes. The defenda nt must submit his person, and any property, house, residence, vehic le, papers, computer, other el ectronic communications or data storage d evices or media, and effects to search at any time, with or without a wa rrant, by any law enforcement or probation officer with reasonable suspicion concerning a violat ion of a condition of supervised release or unlawful conduct by the pers on, and by any probation officer in the la wful discharge of the officer ’s supervision functions. 7. You must allow the probation o fficer to insta ll software/har dware designed to monitor computer ac tivities on any computer you are authorized by the probation offi cer to use. The software may r ecord any and all activity on the comput er, including the capture of keys trokes, application information, Interne t use history, email correspond ence, and chat conversations. A notice will be placed on the computer at the time of installation to warn others o f the existence of the monitori ng software on the computer. You must not atte mpt to remove, tamper with, reverse engineer, or in any way circum vent the software/hardware. R. Vol. I at 97. Blair now appeals. 1 First, Blair argues that h is ten-year sentence is substantively unreasonable. We di sagree and affirm Blair’s sen tence. Second, Blair argues that the special condition of supervised release underli ned above is more restrictive “than is reasonably necessary” in violation of 18 U .S.C. § 3583(d)(2). We agree with that contention, v acate the special condition, and r emand to the district court with instructions to refo rmulate it to acco rd with this o pinion.

1 Although Blair signed a plea agre ement with an appeal waiver, the government concedes that “this appeal falls outside the scope of the waive r” because Blair received a sentence based on an offense level higher than that anticipated by the agreement. Aple. Br. at 8 n.5.5 II. DISCUSSION
A. Prison Sentence Imposed wa s Substantively Reasonable First, Blair argues that the ten -year sentence the district cou rt imposed is substantively unreasonable. We re view substantive reasonablene ss challenges using an abuse of discretion standard t o determine “whether the lengt h of the sentence is reasonable given all the circumstances of the case in light of the factors set forth in 18 U.S.C. § 3553(a).” United States v. Martinez, 610 F.3d 1 216, 1227 (10th Cir. 2010) (quotation and citation om itted). We do not reweigh the sentencing factors but instead ask whether the sentence fell within the range of “rati onally available choices that facts and the law at issue can fairly support.” Id. (inte rnal quotation marks omitted). We reverse only when the distric t court “renders a judgment tha t is arbitrary, capricious, whimsica l or manifestly unreasonable.” Id. Furthermore, we presume that a sentence within the properly calculated guidelin es range is reasonable. United States v. Franklin, 785 F .3d 1365, 1370 (10th Cir. 2015)

. Applying the sentencing guidelin es, the district court calculat ed Blair’s total offense level as thirty-three a nd his criminal history as categ ory I, resulting in an advisory-guidelines sentencing range of between 135-168 months’ imprisonment. However, the district court sentenced Bla ir to 120 months’ imprisonment , an amount below that range, because by st atute his offense was punishable by not more than ten years in prison, see 18 U.S.C.A. § 2252A(b)(2), and U.S.S.G. 5G 1.1(a) provides that where the “ statutorily authorized maximum s entence is less than the minimu m of the applicable guideline range, the s tatutorily authorized maximum sentence shall be the6 guideline sentence.” When a sentence is imposed i n this way, it is considered “within” the applicable guidelin e range and may be presumed rea sonable. United States v. Sangiovanni, 660 F. App’x 651, 657 (10th Cir. 2016). As an initial matter, Blair ar gues that, even though his senten ce falls within the applicable range calculated und er the relevant guideline (§ 2G2 .2), it is unreasonably long because section 2G2.2 is “i nherently flawed” and lacks an empirical basis. Aplt. Br. at 22. We have heard and re jected this argument before. F ranklin, 785 F.3d at 1370. “[W]e apply the presumpt ion of reasonableness to sentenc es based on 2G2.2, regardless of its alleged lack o f empirical support.” Id. The refore, we apply that presumption to Blair’s remaining arguments. Blair asserts that the district court failed to give sufficient weight to three aspects of his personal histor y, his (1) difficult childhood, ( 2) poor mental and physical health, and (3) militar y service. We d isagree. Blair asserts that the district court’s finding that he “didn’t have an abusive childhood” was clearly erroneous because he presented ev idence that his father was abusive and a n alcoholic. Aplt. Br. at 21 n.10. However, as the dist rict court pointed out, the PS R supported its finding. R. Vol. VI at 255. The PSR state d that, although Blair’s fathe r was abusive, Blair “disavowed being the victim of any sexual abuse” and “reported a positive relationship with both parents, a nd with his sister Betsy.” R. Vol. II.A at 18. As for Blair’s concerns about his health , the district court explained that Blair’s “physical and medical conditions do not constitute an extraordinary physi cal impairment” because Blair’s “condition is not so unusual as t o distinguish him from any other7 defendants over the age of 60” a nd the “Bureau of Prisons, espe cially with the aging prison population, has had to b ecome adept in treating all type s of illness and disabled individuals.” R. Vol . VI at 251. Finally, although t he district court did not mention Blair’s militar y service specificall y, it gave other re asons for its sentence, including its opinion that ten year s was a just punishment to r eflect the seriousness of the offense, which affected man y victims who will “endure unima ginable physical and emotional pain for the entir e rest of their lives,” includi ng Blair’s sister and son and the thousands of people depict ed in the images that he down loaded. R. Vol. VI at 295. Blair does not argue tha t the district court committed procedural error by failing to address certain of his arguments, and none of the pe rsonal characteristics he highlights on appeal are suffici ent to rebut the presumption of reasonableness that we must apply to his within-guidelin es sentence. The district cou rt’s decision to impose a sentence of ten year s’ imprisonment appears reasonable to us in light of all the circumstances of the case. Accordingly, we affirm Blair’s pris on sentence

. B. Special Condition Violated 18 U.S.C. § 3583(d)(2) Blair also challenges a special condition of supervised release imposed by the district court banning his use of computers and Internet device s in the absence of permission from his parole officer . “We review the district co urt’s decision to impose special conditions of superv ised release for abuse of di scretion.” United States v. Wayne, 591 F.3d 1326 , 1331 (10th Cir. 2010). Althoug h district courts have broad discretion to presc ribe conditions on supervised rel ease, United States v. Hanrahan, 508 F.3d 962, 970 (10 th Cir. 2007), that discretion i s limited by 18 U.S.C.8 § 3583(d) and 18 U.S.C. § 3553(a) . Read in conjunction with on e another, those statutory provisions p rovide in relevant p art that a trial cour t may order special conditions of supervised release so long as (1) the conditions are reasonably related to “the nature and circumstances of the offense and the history and characteristic s of the defendant,” the need “to afford adequate det errence to criminal conduct,” the need “to protect the public fro m further crimes of the defendant,” and the need “to provide the defendant with needed educational or vocational trai ning, medical care, or other correctional treatment in the most effectiv e manner,” see id. §§ 3583(d)(1), 3553(a)(1), a nd 3553(a)(2)(B)-(D); and (2) the conditions involve “no greater deprivation of liberty than is reasonably necessary for” deterring criminal ac tivity, protecting the public, and promoting a defendant’s rehabilitation, see id. §§ 3583(d)(2), 3553(a)(2)(B)-(D)

. Here, the district court imposed a special condition of supervi sed release that included the following restriction: The defendant’s use of computers and Internet access devices mu st be limited to those the defendant re quests to use, and which the p robation officer authorizes. R. Vol. I at 97. Blair argues that this special condition is n ot reasonably related to the goals of supervised release , and, even if it is so related, it involves a greater deprivation of liberty than is r easonably necessary to achieve those goals. Without deciding Blair’s first argument, we agree with his second argu ment, that the district court’s special condition involves a greater deprivation of lib erty than is reasonably necessary to achieve the goals of supervised release in violati on of section 3583(d)(2). It is clear from our published cases that a special condition of release that gives the probation office discretion to ban completely a defendant’s use of the9 Internet, as this condition does, violates that section. B ecause the special condition in this case allows for such a ban, we vacate the special condi tion as an abuse of discretion. Three published cases guide our analysis. First, in United St ates v. White, we overturned a special condition th at prohibited the defendant fr om “possess[ing] a computer with Internet access t hroughout his period of supervis ed release.” 244 F.3d 1199, 1201 (10th Cir. 2001). W e found the condition simultaneo usly too narrow and overly broad. Id. at 1205. It wa s too narrow because it did n ot prohibit White from browsing sexually explicit materia l on something other than a p ersonal computer, such as on a computer in a libra ry or cybercafe. Id. at 1205-0 6. It was too broad because it prohibited White from using the Internet for benign tasks like checking the weather or reading the news. Id . at 1206. Due to those failin gs, we held that the condition was unreasonable unde r the sentencing statutes. In United States v. Walser, wit h White as the only case in the background, we held that it did not a mount to plain error for the district cou rt to impose “a special condition of supervised release b arring [the defendant’s] use o f or access to the Internet without the prior permiss ion of the United States Prob ation officer” for a three-year term. 275 F.3d 981, 987 (10th Cir. 2001). Despite upholding the permission-first condition, we ca utioned that, but for the plai n error standard of review, we may have gone the ot her way. Id. at 988. We held, It may nevertheless be questiona ble whether the condition impos es “no greater deprivation of liberty t han is reasonably necessary” to meet the goals referred to in 18 U.S.C. § 3583(d), since the vagueness o f the10 special condition leaves open th e possibility that the probatio n office might unreasonably prevent Mr. Wa lser from accessing one of the central means of information-gathering and communication in our culture today. We are not persuaded this concer n rises to the level necessary to clear the extremely high hurdle set by the plain error standard, however, and we decline to overturn the conditi on imposed by the district court

. Id. We accordingly dete rmined that the dist rict court did not plainly err by imposing the condition at i ssue in Walser. Then, in United States v. Ullmann , we reviewed for an abuse of discretion a condition of release that allowe d the defendant to use computer s and the Internet so long as he “abide[d] the policie s of the United States Probatio n Officer’s Computer and Internet Monitoring Program w hich include[d] restrictions a nd/or prohibitions related to: computer and Intern et usage.” 788 F.3d 1260, 1262 (10th Cir. 2015). Focusing on the phrase “restric tions and/or prohibitions,” we h eld that “this language, standing alone, would impe rmissibly impose a greater deprivation of liberty than reasonably necessa ry because it suggests the Proba tion Office may completely ban a mea ns of communication th at has become a neces sary component of modern life.” Id. at 1261. W e reiterated our holding in Wh ite that any “ambiguously-worded condition woul d impose a greater deprivatio n of liberty than is reasonably necessary if it were r ead to completely prohibit a d efendant from accessing the Internet .” Id. at 1263 (cit ing White, 244 F.3d a t 1206). However, we upheld the restriction in Ullma nn as lawful because the distric t court orally modified the condition by clarifying at the sentencing hearing that the “restrictions and/or prohibitions” language only restri cted—and did not prohibit—Ull mann’s use of the11 Internet. Id. a t 1262. Specifically , the district court explai ned that Ullmann “ha[d] not been prohibited from using hi s computer, cell phone or any other electronic appliance with [I]nternet access ” and furthermore that the special condition applied to only certain Internet-capable devices , which we interprete d to exclude, for example, a “gaming system, tha t lacks Internet access.” Id. at 1264 (emphasis added). 2 In addition to relying on those oral modifications, we were per suaded in Ullman that imposing that speci al condition was not an abuse of discretion because we were told that the probation office intended to impose “the standard sex offender supervision condition” under its new Computer and Internet Moni toring Program, and the probation office’s manua l explained that, under that sy stem, “[o]ffenders are permitted to use a computer and access the Intern et, with the c lear understanding that their computer activities are be ing monitored.” Id. at 1262, 1 264. Thus, we upheld the special condition in Ullmann because the modified version o f that condition reasonably restricted but did not prohibit the defendant’s use of the Internet. The special condition that the dis trict court imposed in this c ase, however, both on its face and when read in light of the district court’s statements at sentencing, completely bans Blair’s use of t he Internet and offline compute rs, unless and until the probation office makes some futur e exceptions to the ban, which it has no obligation

2 Although a district court’s oral statements may be relied on t o clarify an ambiguous condition of release when those s tatements are clear, as they w ere in Ullmann, it is clearly preferable to have all terms and conditions set forth i n the written conditions.12 to entertain nor to grant. As a result, the condition involves a “ greater deprivation of liberty than is reasonably necessary” in contravention of 18 U. S.C. § 3583(d)(2). In Ullmann, we described the Internet as “ a means of communicati on that has become a necessary component of modern life.” Id. at 1261. Four years later, the role that computers and the Internet play in our everyday lives has becom e even more pronounced, and we expect that trend to continue. Thus, what w as a reasonable restriction on Internet-use in our earlier cases may be differe nt from what is reasonable today. We must read our prior cases in light of the evolution of the Internet and the public’s depe ndency on it. As we acknowledged in Ullmann, in all but the most extreme cases, a special condition of supervised r elease that absolutely prohibits the use of the Intern et will unreasonably impede a de fendant’s liberty in violation of section 3583. The c ondition in this case is imper missible for exactly that

reason. The special condition of supervised release that the district c ourt imposed here reads: The defendant’s use of computers and Internet access devices mu st be limited to those the defendant re quests to use, and which the p robation officer authorizes. R. Vol. I at 97. Both parties ag ree that that restriction is i ntended to apply to Blair’s use of both offline computers a nd Internet-connected devices th at have the ability to browse the Internet, including computers. 3 However, the parties disagree about how

3 Blair also argues that the dis trict court’s special condition prevents him from using Internet-connected devices that have no Internet -browsing capab ility, like “credit-card13 broadly the condition’s prohibiti ons sweep and whether the brea dth of its scope contravenes sections 3 553 and 3583. We agree with Blair that t his special condition is overbroad

. Blair argues that, on its face, t he special condition would pro hibit his use of a computer for benign activities, s uch as writing a novel or chec king the weather, without first obtaining permi ssion from his proba tion officer (“defenda nt’s use of computers . . . must be limited to those the defe ndant requests to use”). We a gree. T he special condition is written in the nega tive. Unlike the condition tha t we upheld in Ullman, which allowed the defendant to use com puters and the Internet so long as he “abide[d] the policies of the U nited States Probation Officer’s Computer and Internet Monitoring Program which include [d] restrictions . . . related to: computer and Internet usage,” 788 F.3d at 1262, the condition at issue her e prevents Blair from using computers and Internet ac cess devices for any reason unle ss the probation office, in its unfettered discre tion, chooses to lift the ban. Thus, under our holdings in White and Ullmann, this condition imposes a “ greater deprivation of liberty than is reasonably necessary” in contravention of 18 U.S.C. § 3583(d)(2) because it allows the probation office to “ completely ban a means of co mmunication that has become a necessary component of mode rn life.” Id. at 1261.

readers, self-service check-in ki osks at the airport, and iRobo t vacuum cleaners.” Aplt. Br. at 14. That interpretation is not supported by either the plain language of the condition or the district court’ s oral pronouncements at senten cing, and therefore we reject it.14 The government counters that there is nothing in the record sug gesting the district court intended the cond ition to reach so far. We obse rve, however, that nothing in the record limits the breadth of the plain language of the condition, and, if anything, the record suggests th at the district court intended for the condition to operate as a complete ban unless the probation office decides o therwise. We have held that “an oral pronouncement of sentence from the bench con trols over written language,” Ullmann, 788 F.3d at 1264 (brackets removed) (citati on omitted). In response to Blair’s vagueness ch allenge, the district court rei terated that the probation office has complete dis cretion to decide if Blair may use computers and Internet access devices for any reason. The district court sta ted: The defendant argues that this objection, or this restriction, rather, on his computer is too vague and overbroad. The defendant committed this offe nse via the use of the compute r or other electronic devices, combined with the use of the Internet. Giv en this fact, his use the computers [sic] and the internet do need to be clos ely monitored and supervised to reduce the risk of re-offending and to increase community safety. The portion of the disputed condition does allow for the defend ant to request to use computers and in ternet access while under superv ision, and allows for his future probation officer to authorize that usage if deemed safe and appropriate given the pa rticular circumstances present ed by the defendant. The Court finds it appropriate that the condition involves no g reater deprivation of liberty than reas onably necessary based on the f acts and circumstances of this offense and the characteristics of this d efendant. The Court finds it appropriate t hat approval of the defendant’s access to the internet should be addressed on a case-by-case basis with t he defendant’s probation office duri ng his further term of supervi sed release. Therefore, that objec tion is overruled.15 R. Vol. VI at 244–45. The distric t court explained that the sp ecial condition “allows for [Blair’s] future probation officer to authorize” his usage of computers and the Internet “if deemed safe and a ppropriate.” Id. at 245. Howeve r, the district court did not, in either its written cond itions or oral clarifications, r equire the probation office to authorize Blair to use computer s or the Internet for any pur pose, giving it the authority to ban all uses. The government also argues that the district court’s condition is ambiguous and that, as a result, we should construe it “narrowly so as to avoid affecting [a] significant liberty interest.” Aple. Br. at 14 (quoting United States v. Bear, 769 F.3d 1221, 1230 (10th Cir. 2014)). I n Bear, we held that a conditio n of supervised release requiring the defendant to “ submit to a sex offender ment al health assessment and a program of sex offender mental h ealth treatment, as directed by the U.S. Probation Officer, until such time as the d efendant is released from the program by the probation officer” did not deprive the defendant of a liberty i nterest because we construed that broad condition to “ reflect the probation officer ’s representation to the district court that the results o f the assessment would dictate the scope of any treatment plan” in a reasonable wa y rather than reflect an inte ntion by the district court to allow the probation offi ce to impose whatever treatmen t plan it wanted, including an excessive plan not a ppropriate for that particular defendant. Id. at 1230- 31. However, Bear is unpersuasive for two reasons. First, the special condition before us is not ambiguous. Unde r its plain language, at the m oment Blair is released16 from prison, he is not allowed to use computers or the Internet for any reason. Unless and until the probation of fice decides to allow Blair to use the Internet—and it is not required to do so—the s pecial condition operates exactly like the condition in White that we invalidated: it proh ibits Blair’s Internet-use co mpletely. Second, even if the special condition is ambi guous, nothing in our record—un like that in Bear— suggests that the probation offi ce will allow Blair any reasona ble use of the Internet. Like special condition number six (the Internet restriction bef ore us), the surrounding special conditions reflect the dis trict court’s in tent to give the probation office the discretion to maintain the stat us quo established by condition six and prevent Blair from using computers and the In ternet for any reason for all se ven years of his supervised release. Special cond ition number seven states that Blair “ must allow the probation officer to install soft ware/hardware designed to moni tor computer activities on any computer [he is] authori zed by the probation officer to use,” allowing for the possibility that Blair will not be authorized to use any comput ers. R. Vol. I at 97. In short, we cannot construe the c ondition in this case as providi ng authorization from the district court for Blair to use the Internet for benign purposes because the condition does not do so. It perm its, but does not require, th e probation office to allow such use, but there is no court-ordered right for Blair t o use any computer or the Internet for any reason. In a similar argument, the govern ment urges us to presume even in the absence of limiting language that the pr obation officer charged with mo nitoring Blair will enforce the district court’s s pecial condition in a reasonable way. This court adopted17 a reasonableness presumption in United States v. Vins on, 147 F. App’x 763, 774 (10th Cir. 2005) (unpublished) , an unpublished and nonbinding c ase, which involved a special condition that prevent ed the defendant from using “an y Internet service without first receiving written pe rmission from his probation o fficer.” Id. However, the reasonableness-presumption a pproach taken in Vinson ignores the affirmative limits of section 3583(d) that di strict courts must follow when they craft special conditions of supervised release not enumerated by the statute. Section 3583(d)(2) expressly states tha t district courts may order special conditi ons of release beyond those enumerated in the statut e only if the c onditions involve no greater deprivation of liberty than is rea sonably necessary to accomplish the goals of deterring criminal activity, protecting the public, a nd promoting a defendant’s re habilitation. Imposing a special condition that bans al l use of computers and/or the I nternet except for uses to be determined later by the probation officer, in his or her unfettered discretion, does not comply with the require ments of section 3583(d)(2) bec ause it does not ensure that the defendant will b e allowed any reasonable use of computers and the
Internet. 4 Nothing about this case suggest s that a complete ban on Blair ’s use of the Internet is necessary to achieve t he goals of supervised releas e. In any event, because the ubiquitous use of th e Internet has changed consider ably in the fourteen

4 Furthermore, our court in Vinson concluded that the permission -first condition in that case was acceptable only if imple mented to intrude minimally on Vinson’s liberty, for example, through the use of w ebsite filtering software. Id. W e have received no assurance that website filtering software will be used here.18 years since Vinson, and because V inson is not binding authority on us, we think it is appropriate to take a fresh look here at supervised release Int ernet restrictions. The government lastly suggests th at the proper time for Blair t o raise his desire to use computers and the Intern et for harmless purposes is down the road when he meets with his probation officer and discovers how the probatio n office intends to enforce the condition. The govern ment argues that, if the prob ation office enforces the special condition in an unreas onable way, Blair can then mo ve the district court to modify the condition. However , for the reasons already ment ioned, the time to bring the condition into complia nce with sections 3553 and 3583 is now on direct appeal because the requirement s in those sections directly gove rn the district court’s obligations in impos ing supervised release conditions. Additio nally, the government’s wait-and-see sugg estion places an unfair burden on Blair. In order to demonstrate the unfairness of t he probation officer’s enforceme nt of the condition to the district court later on, Bla ir may be required to test the limits of the condition and risk violating it, which could result in his receiving addition al prison time. 5 There are no cases that hav e been called to our attention supporting the idea that a defendant must prove that an ove rbroad condition of supervised release will be

5 For example, the defendant in United States v. Holena, 906 F.3 d 288, 290 (3d Cir. 2018), was required to serve two separate additional nine-month terms of imprisonment for violating a si milar condition of supervised re lease by “updat[ing] social-media profiles,” “answer [ing] emails,” and “log[ging] in to Facebook” without the approval of his probation officer.19 enforced unreasonably in order to obtain relief from it, and we decline to adopt that position in this case. On remand, the district court must amend the challenged special condition of supervised release to bring it in to compliance with the demands of sections 3553 and 3583. Those sections require sp ecial conditions of release tha t neither absolutely prohibit the defendant’s access to computers or the Internet no r permit the probation office to achieve that result by a refusing affirmatively to al low any Internet access. The probation office is limited to imposing only those restrict ions that are reasonably calculated to prevent the defenda nt from using a computer or th e Internet to access, store, produce, or send child por nography in any form; to provi de necessary restrictions to facilitate a def endant’s correctional treatment so that he may be rehabilitated; and to protect the public from any further crime s of the defendant. We share the abhorrence expresse d by the dissent regarding Blai r’s conduct, and as noted previously we have no difficulty affirming the len gth of incarceration imposed by the district court. We also have no doubt that upon remand the district court will be able to fashion a new special condition of superv ised release that allows the probation office to impose a ppropriate restrictions on Blai r’s use of computers and the Internet suffi cient to prevent him from engaging in imp roper behavior without involving a greater depri vation of his liberty than is reasonably necessary to achieve the goals of 3553(a)(2)(B)-(D) . Our holding is only that the district court as the sentencing court is compelle d by sections 3583(d) and 3553( a) to provide meaningful guidance in its spe cial conditions of release to the probation officers that20 will enforce those conditions to prevent them from denying Blai r all access to computers and the Internet. 6
III. CONCLUSION For the foregoing reasons, we affi rm Blair’s sentence as substa ntively reasonable, but we vacate the challenged special condition of s upervised release and remand this case to district cour t to reformulate it to accord with this opinion.

6 No one has argued in this case nor did the district court find that extraordinary circumstances exist to justify such a blanket or total ban.18-1220, United States v. Blair
BALDOCK , Circuit Judge, dissenting in p art, concurring only in Part II -A: The Court today holds the special condition—stating Defendant’s “use of computers and Internet access devices must be limited to those the defend ant requests to use, and which the probation officer authorizes”—imposes a greater depri vation of liberty than reasonably necessary in violation of 18 U.S.C. § 3583(d)(2) bec ause “it allows the probation office to completely ban the defendant’s use of the I nternet” or it in fact “absolutely prohibits t he use of the Internet.” Ct. Op. at 2, 12. Whether a condition could possibly be read as allowing for the extreme hypothetical possi bility that a defendant would be prevented from using a computer or the Internet entirely, ho wever, is not the appropriate inquiry under United States v. Ullman , 788 F.3d 1260, 1261 (10th Cir. 2015). And the condition at issue here and its s urrounding text, not to mentio n the district court’s oral pronouncement and binding precedent, make clear the condition i s not an absolute prohibition of computer or Internet use. Thus, the district co urt did not abuse its broad discretion in imposing th e condition. I would affirm. 1

1 Along with Defendant’s § 3583(d) (2) argument, Defendant argues the condition is not “reasonably related to dete rring and protecting the public from defendant’s crimes,” presumably in violation of § 3 583(d)(1). Op. Br. at 12. He st ates it is “unmoored from the conduct that it is ostensibly intended to prevent— i.e. , the download and possession of child pornography.” Id. This argument is preposterous. T he condition restricting Defen dant’s access to computers and Internet access devices could not be mo re closely moored to the download and possession of child pornography, a crime Defendant committed solely with a computer and the Internet. While the Court does not address this § 3583(d)(1) argument, the argument easily fails, and th e only real issue before this Court is the § 3583(d)(2) issue.2 I. The Court reaches its holding th at the condition is impermissib le because “it allows the probation office to completely ban the defendant’s use of t he Internet” based on its reading of Ullman . Ct. Op. at 2. In Ullman , we addressed a very different condition that imposed “restrictions and/or prohibitions related to: computer and Internet use.” 788 F.3d at 1261 (emphasis added). We held this condition, standing alo ne, would involve a greater deprivation of liberty than reas onably necessary in violation o f § 3583(d)(2). Id. Absent extraordinary circumstances not present in Ullman , a complete “prohibition” was impermissible. At a hearing, however, the district court clari fied that the condition “ only
restricted —and did not prohibit —use of various Internet-capable devices.” Id. at 1262 (emphasis added). Since an “oral pronouncement of sentence fro m the bench controls over written language,” this oral clari fication made the condition l awful. Id. at 1264 (citing United States v. Barwig , 568 F.3d 852, 855 (10th Ci r. 2009)). The holding of Ullman is simple: in general, a court may impose a condition that restricts but not prohibits computer and Internet use. 2 The Court takes it a step further though and construes Ullman to hold that if a condition “allows the probation o ffice to completely ban the de fendant’s use of the Internet,” then the condition imposes a greater liberty deprivation than is reasonably

2 The Court seems to agree with this much. Ct. Op. at 11 (“[W]e upheld the special condition in Ullman because the m odified version of that condit ion reasonably restricted but did not prohibit the defe ndant’s use of the Internet.”).3 necessary in violation of 18 U.S.C. § 3583(d)(2). Ct. Op. at 2 . In other words, if the condition can be read as a comple te prohibition, we must read it that way. But at no point
in Ullman did we set forth a new rule that any time we can possibly read a special condition as imposing a complete prohibition of computer and Internet use in violation of § 3583(d)(2), we must do so. To the contrary, we acknowledged we must “constru[e] [the] condition so as to render it legally sound.” Ullman , 788 F.3d at 1264 (citing United States
v. Mike , 632 F.3d 686, 696 (10th Cir. 2011)). Ullman indeed stated that the condition, without the oral modification, w ould be impermissible because “ it suggests the Probation Office may completely ban a mean s of communication that has bec ome a necessary component of modern life,” but again, it did so because the condition explicitly imposed “prohibitions.” Id. at 1261. The word that could have been construed to “prohibit any Internet or computer use” was “p rohibitions”—a word absent in t he instant condition. Id.
at 1263. Ullman also stated “an ambiguously-wor ded condition would impose a gre ater deprivation of liberty than is reasonably necessary if it were read to completely prohibit a defendant from accessing the Internet.” Id. at 1263 (emphasis added). Contrary to the Court’s holding, what does not follow from this sentence is: “a nd we must read it to completely prohibit a defendant from accessing the Internet if we can.” 3

3 The Court seems to suggest the probation office’s manual was a major factor in our reasoning in Ullman

. Ullman , however, barely mentioned the manual in its analysis. Instead, Ullman made clear that the district court’s oral pronouncement that th e condition was not a prohibition was the sole reason the condition did not violate § 3583. 788 F.3d at 1264 (“We conclude that the modified condition is lawful only because of the district court’s oral statement.” (emphasis added)).4 Far more importantly, the Court’s interpretation of Ullman flatly contradicts our precedent in United States v. Bear , 769 F.3d 1221 (10th Cir. 2014). And, of course, “we must endeavor to interpret our cases in a manner that permits t hem to coexist harmoniously . . . with each other.” United States v. Hansen , __ F.3d __, __, 2019 WL 3071421, *10 (10th Cir. 2019) (citing Carter v. Bigelow , 787 F.3d 1269, 128 0 (10th Cir. 2015)). Bear held “[w]here a broad condition of supervised release is ambigu ous and could be read as restricting a significant liberty interest, we construe the con dition narrowly so as to avoid affecting that significant liberty interest.” Bear , 769 F.3d at 1230 (citing Mike , 632 F.3d at 696). Ullman itself reiterated this principle , stating we must “constru[e] [ the] condition so as to render it legally sound.” Ullman , 788 F.3d at 1264 (citing Mike , 632 F.3d at 696). The Court today takes the opposite approach, ignoring narrow co nstructions of the condition and instead construing the condition in a way that en sures an unreasonable restriction of a liberty interest. The Court’s attempts to explain why Bear does not apply to this case fall flat. First, the Court states the condition is not ambiguous. The fact that the Court reads the condition as having open-ended language t hat gives the probation office “ unfettered discretion” indicates, however, that the cond ition is ambiguous and should be construed “in a manner that does not make [it] infirm.” See Mike , 632 F.3d at 696. The Court also attempts to justify its failure to apply this narrow-construction principle by stating Bear only applied this principle because the probation office assured the distric t court it would apply the condition “in a reasonable way.” Ct. Op. at 15. The reader mi ght be surprised to turn to
Bear and find Bear says nothing about app lying the condition “in a reasonable way. ”5 Further, we had no indication in Mike about how a condition would be applied, yet we still construed the condition in a way that did not make the conditio n infirm. Mike , 632 F.3d at 696. Especially in light of our r equirement “to interpret our cases in a manner that permit them to coexist harmoniously,” t he Court cannot justify its for ced interpretation of Ullman that directly conflicts with our requirement to ask whether the instant condition can be construed “narrowly so as to avoi d affecting [a] significant li berty interest.”
II. The Court today also reads the condition at issue as one that is impermissible under
Ullman because it “absolutely prohibits the use of the Internet.” 4 Ct. Op. at 12. This contention, too, is plainly contradicted by our precedent. In Walser , we explicitly stated a condition that barred the defendant’s “use of or access to the Internet without the prior permission of the United States Probation Officer” did “not com pletely ban[] [the defendant] from using the Intern et” because he only had to “obt ain prior permission from the probation office.” United States v. Walser , 275 F.3d 981, 987–88 (10th Cir. 2001).
Ullman reiterated this by stating the Walser condition—identical in all relevant aspects to the one we face today—“only limite d, but did not completely pro hibit, Internet use.”
Ullman , 788 F.3d at 1263. What does the Court have to say about thes e binding precedents that an almost identical condition was not a complete ban and did not completely prohibit ? Not a single word.

4 The Court and I agree that, as Ullman plainly stated, a “blanket ban” on a defendant’s computer and Internet use is impermissible, unless “extraordinary circumstances” justify the abso lute prohibition. 788 F.3d at 1 261.6 If binding precedent addressing the exact issue is not enough t o demonstrate the condition is not a complete ban, the Court’s holding is plainly contradicted by the very condition itself and its surround ing text. The condition canno t be an absolute prohibition on Defendant’s use of computer and Internet access devices when it allows Defendant to seek authorization of such use. An “absolute prohibition” of c omputer and Internet use would, by definition, be one that does not allow for the possib ility of computer and Internet use. Further, the special cond ition following th e condition li miting computer and Internet use makes clear that the conditio n at issue is not a complete b an. As the Court points out, the next condition requir es the defendant to: allow the probation officer to in stall software/hardware design ed to monitor computer activities on any comput er you are authorized by the p robation officer to use. The software may record any and all activity o n the computer, including the capture of keystrokes, application information, I nternet use history, email correspondence, a nd chat conversations. A notic e will be placed on the computer at the time of installation to warn othe rs of the existence of the monitoring software on the computer. You must not attempt to remove, tamper with, reverse engineer, or in any way circumv ent the software/hardware. R. Vol. I, 97. Such a detailed condition about what must occur once a probation officer authorizes computer use would hardly be necessary if the prior condition was a complete ban and shows, contrary to the C ourt’s assertion, the district court certainly did not have the “intent to . . . prevent Blair from using computers and the Internet for any reason for all seven years of his supervised release.” 5 Ct. Op. at 16.

5 Imputing such an extreme intent to the district court is also difficult—if not impossible—to do in light of the district court’s statements th at Defendant’s “use” of the computers and the Internet need to be “closely monitored and su pervised” and that7 Even more damaging to Defendant’ s case, in sharp contrast to th e condition at issue
in Ullman , the instant condition does not impose any “prohibitions.” In stead, the condition requires that “[t]he defendant’s u se of computers and Internet access devices must be
limited to those the defendant requests to use, and which the probatio n officer authorizes.”
Id. (emphasis added). Imposing limitations on the defendant’s use of computers and Internet access devices is no different than imposing restrictions on a defendant’s computer and Internet use. 6 Yet, even though we held the latter was permissible in Ullman , the Court today holds the former is impermissible. The district court did not impose a condition that “absolutelyprohibits the use of the Internet” but rather imposed a condition that limited (i.e. , restricted) Defendant’s use of computers and Internet access devices—the precise thing we h eld was permissible in
Ullman . That should be the end of thi s issue. But even if one ignor es Walser and Ullman and somehow reads the written co ndition as a complete prohibiti on, Defendant still cannot prevail on his challenge of the c ondition. That is because the district court orally clarified and guided the probation office t o authorize Defendant’s use “i f deemed safe and appropriate given the particular circumstances presented by the defendant.” R. Vol. VI, 245. Recall, an “oral pronouncemen t of sentence from the bench controls over written language.” Ullman , 788 F.3d at 1264. This clarification does two things. First , it cabins

“approval of the defendant’s acce ss to the internet should be a ddressed on a case-by-case basis with the defendant’s p robation office . . . .” R. Vol VI , 244–45.

6 Limitation , Black’s Law Dictionary (11th ed. 2019) (defining a “limitatio n” as a “restriction”); Restriction , Black’s Law Dictionary (11th ed. 2019) (defining a “restricti on” as a “limitation”).8 the probation officer’s discretion by guided the officer to aut horize use “if safe and appropriate.” Second, it shows the district court’s clear inte nt to allow uses of the computer and Internet that are safe and appropriate. The Court brushes this important “safe and appropriate” instruction aside be cause the oral clarification d id not include a statement requiring “the probation office to authorize Blair to use compu ters or the Internet for any purpose.” Ct. Op. at 15. But this clarification is far more s pecific and meaningful than the district court’s clarification in Ullman that the condition was not a prohibition. I do not see how a more specific clarification than the one in Ullman that rendered the condition permissible there fails to do the same here. Additionally, this Court may presume the probation office will enforce the special condition in a reasonable manner. United States v. Vinson , 147 F. App’x 763, 774–75 (10th Cir. 2005) (unpublished); see also United States v. Miller , 665 F.3d 114, 133–34 (5th Cir. 2011); United States v. Love , 593 F.3d 1, 12 (D.C. Cir. 2010). I recognize that Vinson is not binding on this Court, but I find the reasoning for adop ting the reasonableness presumption persuasive. While t he Court does not adopt this pr esumption today, I would do so because such a presumptio n accurately reflects the realit y that the probation officers, who are far more intimately invo lved with Defendant’s day-to-da y life, know what the reasonable, safe, and appropriate uses of computers and the Int ernet are for this particular defendant and can adjust as technology changes. See Love , 593 F.3d at 12.
III. One further comment. The Court states “[n]othing about this cas e suggests that a complete ban on Blair’ s use of the Interne t is necessary to ach ieve the goals of supervised9 release.” Ct. Op. at 17. “ Nothing ?” Defendant has a history o f sex-related crimes that spans decades, dating back to hi s childhood. Defendant’s siste r testified that, when Defendant was fifteen and she was ten, Defendant attempted to r ape her. Their father intervened, luckily, be fore the attempt was successful. Accord ing to Defendant’s son, this was not an isolated incident of s exual abuse and continued into years later when Defendant had children of his own. Defendant’s son testified that Defend ant started grooming him while he was in third grade and eventually engaged in oral sex ten to fifteen times with him over the next couple years. Dur ing these assaults in Defendant ’s bedroom, a computer screen “constantly displayed pornography.” R. Vol. III, 82. T he district court found the testimony of both Defendant’s sis ter and son “to be very credib le.” R. Vol. VI, 240. Fastforwarding to 2014, Defendant p led guilty to felony pimping bas ed on his participation in a prostitution operation in which h e transported women from air ports to massage parlors for prostitution. And, of course, the latest known incident is Defendant’s instan t conviction for possessing over 700,000 images of child pornography—so much child pornography that it had to be sorted into folders, which bore names such as “Hardco re Childporn-PthcKinderporno” and “Pthc folders.” 7 R. Vol. II, 7. On this same hard drive, De fendant also kept “hundreds of pages of text stories describing the abductio n and/or the sexual abuse of

7 According to the PSR, “PTHC stands for ‘Pre-Teen Hardcore.’ In the world of child pornography collectors, this term indicates that the chil d pornography depicts a prepubescent minor engaged in sexual intercourse with one or more other adults or minors.” R. Vol. II, 7.10 children.” Id. at 7. A search of Defendant’s digital devices additionally re vealed he possessed a “rape encyclopedia” and a “rape game,” which is “so me form of game wherein a person chooses scenarios to mak e up the circumstances of a rape.” Id. at 11. Defendant has shown no sense of understanding the gravity of his crimes o r the impact on his victims—the most vulnerable in our society who we can only hope will not have to internally deal with the trauma this man inflicted upon them or contributed to for the rest of their lives. I fail to see how these facts amount to “nothi ng” suggesting a complete ban of computers and the Internet might be the appropriate liberty deprivation for such a defendant whose particular type o f crimes flourish on computers and the Internet. 8
* * * Narrowly construed (or not), the condition can easily be read a s one that does not affect Defendant’s liberty interest to an unacceptable degree. The condition at issue limits—rather than prohibits—Defe ndant’s use of computers and I nternet access devices in compliance with Ullman , and the district court guided the probation officer to author ize such usage “if deemed safe and appropriate”—a more meaningful c larification than the one we held was permissible in Ullman . Accordingly, the district court did not abuse its discretion in imposing the condition because it is not a greate r deprivation of liberty than

8 I believe that the Court’s stat ement is dictum because, as the Court elsewhere notes, the Government unfortunate ly failed to argue that “extra ordinary circumstances” are present here that would ju stify a complete ban. Planned Parenthood of Kan. v. Andersen , 882 F.3d 1205, 1247 (10th Cir. 2018) (stating that a court’s di scussion of an issue not argued by the parties was dicta).11 reasonably necessary to accomplish the purposes set forth in se ction 3553(a)(2)(B)–(D). I respectfully dissent. The Court today remands for the d istrict court to “amend” or “r eformulate” the condition. Ct. Op. at 19–20. It appears to me that, based on White , 9 Ullman , and the Court’s opinion, this amendment or reformulation can consist of an oral or written clarification that the condition the court imposed is only a “l imitation” or “restriction” and not a “prohibition.”

9 United States v. White , 244 F.3d 1199, 1201 (10th Cir. 2001) (“remand[ing] for the court’s clarification of the scope of the denial of Interne t access”).