PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 17-3537

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UNITED STATES OF AMERICA

v.

BRANDEN HOLENA,

 Appellant

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On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 3:07-cr-00169-001)

District Judge: Honorable Matthew W. Brann

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Argued July 10, 2018

Before: GREENAWAY, JR., RESTREPO, and BIBAS, 

Circuit Judges

(Filed: October 10, 2018 )

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Heidi R. Freese, Esq.

Federal Public Defender for the Middle District of 

Pennsylvania

Frederick W. Ulrich, Esq. [ARGUED]

Assistant Federal Public Defender

Office of Federal Public Defender

100 Chestnut Street

Suite 306

Harrisburg, PA 17101

Counsel for Appellant

David J. Freed, Esq. 

United States Attorney for the Middle District of 

Pennsylvania

Carlo D. Marchioli, Esq. [ARGUED]

Office of United States Attorney

228 Walnut Street, P.O. Box 11754

220 Federal Building and Courthouse

Harrisburg, PA 17108

Francis P. Sempa, Esq. 

Office of United States Attorney

235 North Washington Avenue

P.O. Box 309, Suite 311

Scranton, PA 18503

Counsel for Appellee
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OPINION OF THE COURT

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BIBAS, Circuit Judge.

To protect the public, a sentencing judge may restrict a 

convicted defendant’s use of computers and the internet. But 

to respect the defendant’s constitutional liberties, the judge 

must tailor those restrictions to the danger posed by the 

defendant. A complete ban on computer and internet use “will 

rarely be sufficiently tailored.” United States v. Albertson, 645 

F.3d 191, 197 (3d Cir. 2011). This case illustrates why.

Branden Holena was convicted of using the internet to try 

to entice a child into having sex. As a condition of his 

supervised release from prison, he may not possess or use 

computers or other electronic communication devices. Nor 

may he use the internet without his probation officer’s 

approval. Restricting his internet access is necessary to protect 

the public. But these restrictions are not tailored to the danger 

he poses. So we will vacate and remand for resentencing.

I. BACKGROUND

Holena repeatedly visited an online chatroom and tried to 

entice a fourteen-year-old boy to have sex. He made plans to 

meet the boy. He assured the boy that his age was not a 

problem, as long as the boy did not tell the police. But the 

“boy” was an FBI agent. So when Holena arrived at the 
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arranged meeting spot in a park, he was arrested and charged 

with attempting to entice a minor to engage in sexual acts.

Holena pleaded guilty. He was sentenced to ten years’ 

imprisonment and a lifetime of supervised release. As a special 

condition of that supervised release, he was forbidden to use 

the internet without his probation officer’s approval. He had to 

submit to regular searches of his computer and home. And he 

had to let the probation office install monitoring and filtering 

software on his computer.

After serving his prison sentence, Holena violated the terms 

of his supervised release—twice. The first time, he went online

to update social-media profiles and answer emails. The second 

time, he logged into Facebook without approval, then lied 

about it to his probation officer. After each violation, the court 

sentenced him to nine more months’ imprisonment and 

reimposed the special conditions.

At Holena’s latest revocation hearing, the judge imposed 

another condition, forbidding him to possess or use any 

computers, electronic communications devices, or electronic 

storage devices. Holena objected to this lifetime ban.

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction under 18 U.S.C. §§3231

and 3583(e). We have jurisdiction under 28 U.S.C. §1291 and 

18 U.S.C. §3742(a).

We review revocation of supervised release for abuse of 

discretion. United States v. Bagdy, 764 F.3d 287, 290 (3d Cir. 

2014). We insist on “some evidence” that the special 
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conditions imposed are “tangibly related” to the goals of 

supervised release. United States v. Voelker, 489 F.3d 139, 144 

(3d Cir. 2007); see 18 U.S.C. §3583(d). To justify special 

conditions, district courts must find supporting facts. United 

States v. Thielemann, 575 F.3d 265, 272 (3d Cir. 2009). We 

may affirm if we can “ascertain any viable basis” in the record 

for the restriction. Id. (quoting Voelker, 489 F.3d at 144). Here, 

we cannot.

III. THE SPECIAL CONDITIONS ARE NOT SUFFICIENTLY 

TAILORED

Holena argues that the bans on computer and internet use 

are both contradictory and more restrictive than necessary. We 

agree. And we note that the lack of tailoring raises First 

Amendment concerns.

A. The conditions are contradictory

Holena’s conditions of supervised release contradict one 

another, so we cannot be sure that they fit the goals of 

supervised release. We cannot tell what they forbid, nor can

Holena. So we must vacate and remand.

One condition forbids Holena to “possess and/or use 

computers ... or other electronic communications or data 

storage devices or media.” App. 8 (¶11). But the very next 

condition provides that he “must not access the Internet except 

for reasons approved in advance by the probation officer.” Id.

(¶12). These requirements conflict. How can he use the 

internet at all if he may neither possess nor use a computer or 

electronic communication device? 
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Two other conditions likewise conflict with the ban. One 

requires him to have monitoring software installed “on any 

computer” he uses. Id. (¶7). The other requires him to submit

to searches of his computers. These conditions are difficult to 

reconcile given his computer ban. 

Nothing in the record helps us or Holena to harmonize these 

contradictory conditions. Even the Government “hesitates to 

discern” what the District Court meant to forbid. Appellee’s 

Br. 28. And the Government admits that the ban conflicts with 

several other conditions.

Even so, the Government urges us to read the probationofficer-approval provision as an exception to the ban. But we 

are not interpreting a statute. Due process requires district 

courts to give defendants fair warning by crafting conditions 

that are understandable. See United States v. Fontaine, 697 

F.3d 221, 226 (3d Cir. 2012).

Holena cannot follow these conditions because he cannot 

tell what they forbid. So we will vacate and remand.

B. The conditions are more restrictive than necessary

Section 3583(a) places “real restriction[s] on the district 

court’s freedom to impose conditions on supervised release.” 

United States v. Pruden, 398 F.3d 241, 248 (3d Cir. 2005). 

Special conditions may not deprive the defendant of more 

liberty “than is reasonably necessary” to deter crime, protect 

the public, and rehabilitate the defendant. 18 U.S.C. 

§3583(d)(2); see id. §3553(a). The same is true when district 

courts alter conditions of supervised release. Id. §3583(e)(2).
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The scope and intrusiveness of Holena’s conditions, on this 

sparse record, violate this requirement. So, on remand, the 

District Court must tailor any restrictions it imposes to 

Holena’s conduct and history. Id. §3583(d)(2), (e)(2); see also 

Voelker, 489 F.3d at 146. Our remand is not “limited” to 

clarifying the special conditions. Appellee’s Br. 29. The 

District Court should conduct another revocation hearing. At 

that hearing, it should make findings to support any restrictions 

it chooses to impose on Holena’s internet and computer use. 

And it should ensure that Holena understands those 

restrictions.

A defendant’s conduct should inform the tailoring of his 

conditions. For instance, a tax fraudster may be forbidden to 

open new lines of credit without approval. United States v. 

Bickart, 825 F.3d 832, 840 (7th Cir. 2016). A child molester 

may be forbidden to linger near places where children 

congregate. United States v. Zobel, 696 F.3d 558, 575 (6th Cir. 

2012). And a child-pornography collector may be forbidden to 

possess pornography or visit pornographic websites. See 

United States v. Freeman, 316 F.3d 386, 392 (3d Cir. 2003).

So internet bans and restrictions have a role in protecting the 

public from sexual predators.

Still, internet bans are “draconian,” and we have said as 

much “even in cases where we have upheld them.” United 

States v. Heckman, 592 F.3d 400, 408 (3d Cir. 2010). To gauge 

whether an internet or computer restriction is more restrictive 

than necessary, we consider three factors: the restriction’s 

length, its coverage, and “the defendant’s underlying conduct.” 

Id. at 405 (emphasis removed). Sometimes we also consider a 
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fourth factor: the proportion of the supervised-release 

restriction to the total restriction period (including prison). 

Albertson, 645 F.3d at 198. But we cannot rely on that 

proportion because the numerator is a lifetime ban. So we give 

the fourth factor no weight here.

Our analysis must be fact-specific. Id. We do not simply 

tally the factors, nor does one factor predominate. Here, both 

the length and coverage of the computer ban and internet 

restriction are excessive. And they are not tailored to Holena’s 

conduct.

1. Length. We are troubled that Holena’s “restrictions will 

last as long as he does.” Voelker, 489 F.3d at 146. Without a 

more detailed record, we cannot uphold such a “lifetime 

cybernetic banishment.” Id. at 148.

We have never upheld a lifetime ban in a precedential 

opinion. And we have had trouble “imagin[ing] how [a 

defendant] could function in modern society given [a] lifetime 

ban” on computer use. Id. But we do not suggest that a lifetime 

ban could never be sufficiently tailored. And the Sentencing 

Guidelines recommend the statutory maximum term (which 

may be a lifetime term) of supervised release for sex crimes. 

U.S. Sentencing Guidelines Manual §5D1.2(b)(2) (U.S. 

Sentencing Comm’n 2016) (policy statement).

Still, we are “conscious” that “[t]he forces and directions of 

the Internet are so new, so protean, and so far reaching” that 

any restrictions imposed today “might be obsolete tomorrow.” 

Packingham v. North Carolina, 137 S. Ct. 1730, 1736 (2017).
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So the lifetime duration of the blanket ban is presumptively 

excessive.

2. Scope. The computer and internet bans both sweep too 

broadly. They are the “antithesis of [the] ‘narrowly tailored’ 

sanction[s]” we require. Voelker, 489 F.3d at 145.

The ban on using a computer “or other electronic 

communications ... device[] ” is particularly draconian. App. 8

(¶11). In Thielemann, we upheld a qualified ten-year ban, one 

of the longest and most restrictive bans we have upheld yet. 

575 F.3d at 278. But that ban involved some tailoring; the 

defendant could still “own or use a personal computer as long 

as it is not connected to the internet.” Id. (emphasis removed). 

Not so here. Even under the Government’s less restrictive 

reading, Holena can use no computer without his probation 

officer’s approval, nor even a cellphone. These restrictions 

apply even to devices that are not connected to the internet. 

These limitations prevent him from doing everyday tasks, like 

preparing a résumé or calling a friend for a ride. None of these 

activities puts the public at risk. So the computer and 

communication-devices ban is too broad.

The internet ban fares little better. It prevents Holena from 

accessing anything on the internet—even websites that are 

unrelated to his crime. True, the District Court did some 

limited tailoring of this restriction (if one reads the 

contradictory conditions as adding up to less than a blanket 

ban). It imposed a monitoring requirement and let him use the 

internet with his probation officer’s prior approval. Those 

tweaks move the internet ban closer to the “comprehensive, 
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reasonably tailored scheme” that we require. United States v. 

Miller, 594 F.3d 172, 188 (3d Cir. 2010).

But the District Court gave the probation office no guidance 

on the sorts of internet use that it should approve. The goal of 

restricting Holena’s internet use is to keep him from preying 

on children. The District Court must tailor its restriction to that 

end. 

On this record, we see no justification for stopping Holena 

from accessing websites where he will probably never

encounter a child, like Google Maps or Amazon. The same is 

true for websites where he cannot interact with others or view 

explicit materials, like Dictionary.com or this Court’s website. 

The District Court need not list all the websites that Holena 

may visit. It would be enough to give the probation office some 

categories of websites or a guiding principle. 

None of this is to say that the District Court may not impose 

sweeping restrictions. In appropriate cases, it may. We hold 

only that, on this record, the scope of the restrictions is too 

broad.

3. Conduct. Holena used the internet to solicit sex from a 

minor. And he repeatedly violated the terms of his supervised 

release. That conduct warrants special conditions to limit his

internet use. But we examine whether the District Court has 

tailored the special conditions to protect the public from similar 

crimes that Holena might commit. That tailoring is inadequate 

here.

We recognize that the need to protect the public is strongest 

in cases like this, when the defendant used the internet to try to 
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molest children. See Thielemann, 575 F.3d at 278; United 

States v. Crandon, 173 F.3d 122, 128 (3d Cir. 1999). Holena’s 

conduct underscores that point. He solicited sex from a 

(supposedly) fourteen-year-old boy. He graphically described 

the sexual acts he wanted to perform. And he knew what he 

was doing was wrong, but did it anyway. So there is still a 

strong need to protect the public. That is particularly true 

because the internet provides almost limitless opportunities to 

interact with people anonymously and nearly untraceably.

Even so, Holena’s bans are not tailored to his conduct. They 

apply broadly to many internet and computer uses that have 

nothing to do with preying on children.

On remand, the District Court must sculpt Holena’s

restrictions to his conduct. Any restrictions it imposes must 

aim to deter future crimes, protect the public, or rehabilitate 

Holena. And the District Court must find facts so that we can 

review whether the restrictions are informed by Holena’s 

conduct and directed toward those goals.

It is almost certainly appropriate to prevent Holena from 

using social media, chat rooms, peer-to-peer file-sharing 

services, and any site where he could interact with a child. On 

the other hand, it may not be appropriate to restrict his access 

to websites where he is unlikely to encounter a child. And there 

are difficult cases in between, like restricting email access. We 

leave it to the District Court to make those close calls based on 

the record. 

But, on this record, the court may not prevent Holena from 

doing everyday tasks that have migrated to the internet, like 
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shopping, or searching for jobs or housing. The same is true for

his use of websites conveying essential information, like news, 

maps, traffic, or weather. Nor does this record justify banning 

benign use of a computer without internet access. Absent 

specific factual findings, we cannot say that forbidding Holena 

to write a novel or listen to music on his computer makes the 

public any safer.

In crafting Holena’s restrictions, the District Court should 

also consider the availability and efficacy of filtering and 

monitoring software. See Voelker, 489 F.3d at 150; United 

States v. Johnson, 446 F.3d 272, 282-83 (2d Cir. 2006) 

(upholding a complete internet ban because the defendant 

could disable monitoring software). Special conditions should 

involve “no greater deprivation of liberty than is reasonably 

necessary” for its ends. 18 U.S.C. §3583(d)(2). So if software 

or another measure (like limiting Holena’s computer or 

internet use to the confines of the probation office) can achieve 

the goals of supervised release, then that is preferable to an 

outright ban. In any event, the court must create enough of a 

record to ground its findings and enable our review.

On remand, the District Court should also consider whether 

Holena may be allowed a cellphone. It should consider whether 

he can safely be allowed a smartphone with monitoring 

software installed. Alternatively, it may wish to permit a noninternet-connected phone, perhaps with text messaging that is 

monitored or disabled. Along the same lines, many other 

devices are connected to the internet, ranging from gaming 

devices to fitness trackers to smart watches. We leave all such 

determinations to the District Court.
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C. The conditions raise First Amendment concerns

Section 3583’s tailoring requirement reflects constitutional 

concerns. Conditions of supervised release may not restrict 

more liberty than reasonably necessary, including 

constitutional liberty. So district courts must “consider the First 

Amendment implications” of their conditions of supervised 

release. Voelker, 489 F.3d at 150. Conditions that restrict 

“fundamental rights must be ‘narrowly tailored and ... directly 

related to deterring [the defendant] and protecting the public.’” 

United States v. Loy, 237 F.3d 251, 256 (3d Cir. 2001) (quoting 

Crandon, 173 F.3d at 128). And a condition is “not ‘narrowly 

tailored’ if it restricts First Amendment freedoms without any 

resulting benefit to public safety.” Id. at 266.

Here, both Holena’s computer ban and internet ban limit an 

array of First Amendment activity. And none of that activity is 

related to his crime. Thus, many of the restrictions on his 

speech are not making the public safer.

The Supreme Court recently struck down a North Carolina 

law banning sex offenders from using social-media websites. 

Packingham, 137 S. Ct. at 1738. Because the parties did not 

mention Packingham in their opening briefs, ordinarily we 

would not reach the issue. See Kost v. Kozakiewicz, 1 F.3d 176, 

182 (3d Cir. 1993). But we asked for supplemental briefing on 

Packingham’s import here. And, because we are remanding, 

we think it appropriate to offer guidance on how Packingham

informs the shaping of supervised-release conditions.

The District Court can limit Holena’s First Amendment 

rights with appropriately tailored conditions of supervised 
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release. Defendants on supervised release enjoy less freedom 

than those who have finished serving their sentences. See 

United States v. Knights, 534 U.S. 112, 119 (2001); United 

States v. Rock, 863 F.3d 827, 831 (D.C. Cir. 2017). But, as we 

have noted, these restrictions must be tailored to deterring 

crime, protecting the public, or rehabilitating the defendant. 

Under Packingham, blanket internet restrictions will rarely be 

tailored enough to pass constitutional muster. 

Here, even under Packingham’s narrower concurrence, the 

bans fail. They suffer from the same “fatal problem” as North 

Carolina’s restriction on using social media. Packingham, 137 

S. Ct. at 1741 (Alito, J., concurring). Their “wide sweep 

precludes access to a large number of websites that are most 

unlikely to facilitate the commission of a sex crime against a 

child.” Id. So on remand, the District Court must also take care 

not to restrict Holena’s First Amendment rights more than 

reasonably necessary or appropriate to protect the public.

D. The sentence was procedurally reasonable

Finally, we note briefly that the sentence is procedurally 

reasonable because it is consistent with United States v. Booker

and its progeny. 543 U.S. 220 (2005). The District Court 

correctly calculated the applicable Guidelines range. It allowed 

the parties to argue for whatever sentence they deemed 

appropriate. It considered all of the §3553(a) factors. And it 

sufficiently explained its reasoning on the record. See Gall v. 

United States, 552 U.S. 38, 49-51 (2007); see also United 

States v. Douglas, 885 F.3d 145, 150 (3d Cir. 2018).
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* * * * *

Holena poses a danger to children, so the District Court 

may, and should, limit his liberty accordingly. But his 

supervised release must still be tailored to the danger that he 

poses. Holena’s current conditions fail that test. They 

contradict one another. They also sweep too broadly, 

preventing him from reading the news or shopping online. And 

they limit his First Amendment freedoms beyond what is 

reasonably necessary or appropriate. We do not see how they 

are reasonably tailored to further the goals of supervised 

release, especially protecting the public. So we will vacate his

sentence and remand for a new revocation hearing.