NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

HOWARD WILLIAM HALVERSON, 

Defendant-Appellant.

No. 22-10057 

D.C. No. 

2:20-cr-50253-DLR-1 

MEMORANDUM*

Appeal from the United States District Court

for the District of Arizona

Douglas L. Rayes, District Judge, Presiding

Argued and Submitted April 19, 2023

Phoenix, Arizona

Before: TALLMAN, OWENS, and BADE, Circuit Judges.

Howard Halverson pled guilty to possession of child pornography in the 

Southern District of Texas and was sentenced to 60 months’ imprisonment and a 

lifetime term of supervised release. In order to accommodate his request to transfer

probation supervision to the District of Arizona, Halverson affirmatively consented 

to three special conditions of supervised release that are relevant to this appeal: a

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

JUL 3 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Sexually Explicit Materials Condition,1a Camera Condition,2and a Computer 

Condition3(collectively, “Pre-revocation Conditions”). Respectively, the Prerevocation Conditions restricted his access, use, and possession of certain “material 

depicting sexually explicit conduct,” devices “capable of capturing and/or storing an 

image,” and computers and other “internet capable devices.”

Halverson is a particularly sophisticated offender with a background in

computer technology—he has deployed “shielding” devices and other anti-detection

techniques that made it harder for officers to effectively supervise his on-line 

activities. However, vigilant probation officers were eventually able to discover that 

Halverson was again viewing pornography and was in possession of prohibited 

devices. The Arizona district court subsequently revoked Halverson’s supervised 

release and sentenced him to time served and a continued lifetime term of supervised 

release. The district court imposed nearly identical versions of the Pre-revocation

1

“You must not knowingly possess, view, or otherwise use material depicting 

sexually explicit conduct as defined by 18 U.S.C. § 2256(2). . . . You must not enter 

any location where the primary function is to provide these prohibited materials.”

2

“You must not possess any device capable of capturing and/or storing an image, or 

video recording device without the prior written permission of the probation officer.”

3

“You must not possess or use a computer (including internet capable devices) with 

access to any ‘on-line computer service’ at any location (including place of 

employment) without the prior written permission of the probation officer. This 

includes any Internet service provider, bulletin board system, or any other public or 

private network or e-mail system.”
3 

Conditions along with two additional conditions preventing him from accessing 

social media sites and requiring him to submit to substance abuse testing.

Halverson appeals the revocation of his supervised release, now arguing for 

the first time that the Pre-revocation Conditions were unconstitutional. Halverson 

also appeals the district court’s decision to reimpose those same conditions and to

impose the new social media and substance abuse conditions. We affirm in part and 

remand in part.

1. The parties dispute whether Halverson was permitted to collaterally 

challenge the legality of his Pre-revocation Conditions at his revocation hearing and

whether he may challenge them in this appeal. Our cases suggest several competing 

answers. For example, some cases indicate that defendants need not challenge the 

legality of their conditions of supervised release in a direct appeal from sentencing 

in order to challenge those conditions at a future revocation hearing—and that doing 

so might even be premature. See, e.g., United States v. Romero, 676 F.2d 406, 407

(9th Cir. 1982); United States v. King, 608 F.3d 1122, 1128 (9th Cir. 2010); United 

States v. Antelope, 395 F.3d 1128, 1131-32, 1141 (9th Cir. 2005); United States v. 

T.M., 330 F.3d 1235, 1241 n.6 (9th Cir. 2003); United States v. Ray, No. 21-50024, 

2022 WL 1451392, at *2 (9th Cir. May 9, 2022) (unpublished), cert. denied, 143 S. 

Ct. 265 (2022); United States v. Star, 552 F. App’x 635, 636 (9th Cir. 2014) 

(unpublished). Another line of cases suggests that a defendant’s failure to object to 
4 

supervised release conditions at sentencing constitutes forfeiture and we therefore 

review only for plain error. See United States v. Phillips, 704 F.3d 754, 767-68, 768 

n.13 (9th Cir. 2012); United States v. Wright, 754 F. App’x 530, 532 (9th Cir. 2018)

(unpublished). A third line of cases indicates that defendants may be statutorily 

barred from challenging the legality of their conditions of supervised release at a 

subsequent revocation hearing. See United States v. Gross, 307 F.3d 1043, 1044 

(9th Cir. 2002); United States v. Cate, 971 F.3d 1054, 1056-58 (9th Cir. 2020); 

United States v. Castro-Verdugo, 750 F.3d 1065, 1068-71 (9th Cir. 2014). 

Ultimately, we need not resolve this split of authority because Halverson’s 

challenge fails even if we assume that he preserved the issues in this appeal and that 

he is not barred from asserting them. 

2. The district court properly rejected Halverson’s facial and as-applied 

vagueness and overbreadth challenges to his Pre-revocation Conditions because 

Halverson had actual notice from an earlier home visit by probation officers that his 

conduct was clearly and legitimately proscribed by those conditions. The “core” of 

the challenged conditions prohibited Halverson from viewing pornography and from 

possessing cameras, electronic storage drives, and computers as those terms are 

ordinarily understood. See United States v. Sandsness, 988 F.2d 970, 971 (9th Cir. 

1993) (explaining vague statutes lack a “core” of clearly prohibited conduct). 

Probation officers had initially reviewed those conditions with Halverson when he 
5 

was released from federal prison. After probation officers discovered Halverson was 

viewing pornography and was in possession of hard drives and cameras, rather than 

file a petition to revoke his supervision, they explicitly warned Halverson that his 

conduct violated the terms of his supervised release. See King, 608 F.3d at 1128 (“A 

probation officer’s instructions are relevant to whether a supervised release 

condition gives fair warning of prohibited conduct.”).

Despite “actual notice” that his conduct was clearly prohibited, United States 

v. Backlund, 689 F.3d 986, 997 (9th Cir. 2012), Halverson nonetheless ignored the 

warnings, and a subsequent search of his home uncovered 23 unauthorized 

devices—including computers and internet-capable devices, hard drives, and 

cameras. Moreover, Halverson understood that his conduct was prohibited because 

he utilized his background in computer technology to employ sophisticated hardware 

and software designed to obscure that surreptitious conduct from law enforcement 

monitoring. 

On this record, Halverson’s “behavior rendered him a hard-core violator as to 

whom the [conditions were] not vague,” and he may not escape responsibility by 

speculating that the conditions might have been unconstitutional as applied to 

hypothetical conduct not before us. Smith v. Goguen, 415 U.S. 566, 577 (1974); see 

also Kashem v. Barr, 941 F.3d 358, 375 (9th Cir. 2019) (detailing the general rule 

that a “plaintiff who engages in some conduct that is clearly proscribed cannot 
6 

complain of the vagueness of the law as applied to the conduct of others” (citation 

omitted)).

3. The district court also properly rejected Halverson’s First Amendment 

challenge to the Sexually Explicit Materials Condition. Halverson primarily relies 

on United States v. Gnirke, 775 F.3d 1155 (9th Cir. 2015), where we held that a 

similar condition deprived the defendant of more liberty than was reasonably 

necessary. Id. at 1163. As the district court properly observed, however, the Gnirke

court declined to remand the case and held the condition was valid so long as it was 

limited “(1) to any materials with depictions of ‘sexually explicit conduct’ involving 

children, as defined by 18 U.S.C. § 2256(2), and (2) to any materials with depictions 

of ‘sexually explicit conduct’ involving adults, defined as explicit sexually 

stimulating depictions of adult sexual conduct that are deemed inappropriate by [the]

probation officer.” Id. at 1166. Here, the district court specifically cited the Gnirke

opinion and explained that it would apply the same limiting construction. See United 

States v. Hernandez, 795 F.3d 1159, 1169 (9th Cir. 2015) (“When there is a 

discrepancy between an unambiguous oral pronouncement of a sentence and the 

written judgment, the oral pronouncement controls.” (citation omitted)). The district 

court then reasonably concluded that Halverson’s possession and consumption of 

depictions of adult pornography, bestiality, and child erotica “fits squarely” within

the condition as construed. We agree.
7 

4. For similar reasons, the district court did not abuse its discretion by

reimposing nearly identical conditions. Nor did it err by imposing a new condition 

that prohibits Halverson from accessing social media sites. See United States v. 

Wells, 29 F.4th 580, 591 (9th Cir. 2022) (affirming a total ban on internet use without 

probation officer approval where the defendant used the internet to access child 

pornography). The district court heard extensive testimony at the revocation hearing 

regarding Halverson’s background in computer technology and how he utilized a 

sophisticated combination of software and hardware in an attempt to hide his 

prohibited conduct from probation officers. On this record, we hold that the district 

court did not abuse its discretion in restricting Halverson’s access to sexually explicit 

materials, certain electronic devices, and social media sites.

5. The parties agree that the district court mistakenly included a condition

requiring Halverson to submit to substance abuse testing. We therefore grant the 

parties’ request for a limited remand.

4

 

AFFIRMED IN PART; REMANDED IN PART. 

4 On remand, the district court may also wish to impose an updated computer 

condition as suggested by the government in its briefing.