United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 12, 2010 Decided April 2, 2010 

No. 08-3120 

UNITED STATES OF AMERICA, 

APPELLANT

v. 

MARK WAYNE RUSSELL, 

APPELLANT

Appeal from the United States District Court 

for the District of Columbia 

(No. 1:06-cr-00176-RBW-1) 

Tony Axam Jr., Assistant Federal Public Defender, argued 

the cause for appellant. With him on the briefs was A. J. 

Kramer, Federal Public Defender. Neil H. Jaffee, Assistant 

Federal Public Defender, entered an appearance. 

Peter S. Smith, Assistant U.S. Attorney, argued the cause 

for appellee. With him on the brief were Roy W. McLeese II1, 

Mary B. McCord, and Julieanne Himelstein, Assistant U.S. 

Attorney. 

Before: HENDERSON and TATEL, Circuit Judges, and 

WILLIAMS, Senior Circuit Judge. 
2

Opinion for the Court filed by Senior Circuit Judge

WILLIAMS. 

Concurring opinion filed by Circuit Judge HENDERSON. 

Concurring opinion filed by Senior Circuit Judge 

WILLIAMS. 

WILLIAMS, Senior Circuit Judge: Defendant Mark 

Russell pleaded guilty to one count of travel with intent to 

engage in illicit sexual conduct, in violation of 18 U.S.C. 

§ 2423(b) (2006). The district court sentenced him to 46 

months of imprisonment and 30 years of supervised release. 

A special condition of his supervised release specifies that 

Russell may not “possess or use a computer for any reason.” 

Russell challenges the duration of his supervised release and 

the computer restriction, arguing that each is substantively 

unreasonable. See Gall v. United States, 552 U.S. 38, 51 

(2007). We affirm the length of the supervised release, but 

vacate the computer restriction and remand for resentencing. 

* * * 

In June 2006, using a computer at his home in Columbia, 

Maryland, Russell entered an internet chat room and initiated 

a conversation with an individual identifying herself as a 13-

year old girl; “she” was actually a member of the District of 

Columbia Metropolitan Police Department. Three days later, 

Russell again engaged the “child” in an online chat. Over the 

course of their second chat, Russell performed a solo sex act 

live via webcam and invited the “child” to have sex with him. 

The purported child, in response, provided her address in 

Washington, D.C., and said that her mother would not be 

home until seven or eight that evening. Russell drove to the 

address, parked his car, and e-mailed the “child” to say he had 
3

arrived. After a period of waiting, he began to drive away, at 

which point he was arrested. 

 Russell was 46 when he was sentenced, and 

approximately 50 at the time of his release. He had worked as 

an applied systems engineer at Johns Hopkins University for 

ten years before becoming unemployed at the end of April 

2006. Before this arrest, he had had no contact with the law. 

According to his wife of 23 years, the mother of their three 

children, he had been depressed in the period just before his 

arrest. 

30-Year Term of Supervised Release. Russell challenges 

the 30-year term of his supervised release as substantively 

unreasonable. The parties initially spar over the proper 

standard of review. The government, though acknowledging 

that counsel posed an adequate objection to the conditions of 

supervised release, contends that it did not embrace the term. 

We assume in the government’s favor that Russell’s objection 

in fact went only to the conditions. 

 We held in United States v. Bras, 483 F.3d 103 (D.C. Cir. 

2007), that we review claims of substantive unreasonableness 

for abuse of discretion, regardless of whether an objection on 

those terms was made. Id. at 113. Noting that reasonableness 

is simply “the standard of appellate review,” we quoted the 

7th Circuit’s discussion of the point: 

To insist that defendants object at sentencing to preserve 

appellate review for reasonableness would create a trap 

for unwary defendants and saddle busy district courts 

with the burden of sitting through an objection—probably 

formulaic—in every criminal case. Since the district 

court will already have heard argument and allocution 

from the parties and weighed the relevant § 3553(a) 

factors before pronouncing sentence, we fail to see how 
4

requiring the defendant to then protest the term handed 

down as unreasonable will further the sentencing process 

in any meaningful way. 

Id. (quoting United States v. Castro-Juarez, 425 F.3d 430, 

433-34 (7th Cir. 2005)); see also United States v. Vonner, 516 

F.3d 382, 389-90 (6th Cir. 2008) (no duty to object to 

sentence on grounds of substantive unreasonableness). Such a 

requirement would indeed yield a “formulaic” statement. 

Substantive reasonableness is the catch-all criterion under 

which the reviewing court monitors (deferentially—for abuse 

of discretion) whether the district court has given reasonable 

weight to all the factors required to be considered. 

Presumably all (or virtually all) defendants would prefer a 

shorter sentence, a shorter period of supervised release, and 

less restrictive conditions. It would hardly alert the district 

court to anything new for defense counsel to say that 

defendant sought a more favorable sentence. By contrast, 

unnoticed errors of the sort characterized by the Supreme 

Court in Gall as procedural, “such as failing to calculate (or 

improperly calculating) the Guidelines range, treating the 

Guidelines as mandatory, failing to consider the § 3553(a) 

factors, selecting a sentence based on clearly erroneous facts, 

or failing to adequately explain the chosen sentence—

including an explanation for any deviation from the 

Guidelines range,” 552 U.S. at 51, would normally be 

reviewed for plain error. In re Sealed Case, 527 F.3d 188, 

191-93 (D.C. Cir. 2008) (applying plain error review, in the 

absence of objection at trial, to a sentencing judge’s failure to 

provide an explanation of the sentence); see also Vonner, 516 

F.3d at 386-88. 

The government argues that in the absence of objection 

we should apply plain error in reviewing a substantive 

reasonableness challenge to the duration of supervised 

release, citing United States v. Sullivan, 451 F.3d 884 (D.C. 
5

Cir. 2006). In Sullivan, we reviewed a challenge to the 

substantive reasonableness of a condition of supervised 

release for plain error. Id. at 894. See United States v. Love, 

593 F.3d 1, 8 (D.C. Cir. 2010) (like Sullivan, applying plain 

error review to substantive reasonableness challenge of a 

condition of supervised release). Whatever the precedential 

effect of Sullivan and Love may be with respect to 

discretionary conditions, they do not address the applicable 

standard with respect to the duration of supervised release. 

On this question, we find the reasoning in Bras to be 

persuasive and thus proceed under an abuse of discretion 

standard. 

Appellate review of the duration of supervised release 

parallels review of a term of imprisonment. While in the 

latter we inquire whether the district court abused its 

discretion in applying the factors mandated by 18 U.S.C. 

§ 3553(a), Gall, 552 U.S. at 56, here we ask whether the court 

abused its discretion in applying the factors specified by 18 

U.S.C. § 3583(c) for fixing a term of supervised release. 

These are in fact simply a subset of those specified in 

§ 3553(a), namely: 

(1) the nature and circumstances of the offense and 

the history and characteristics of the defendant; 

(2) the need for the sentence imposed-- . . . 

 (B) to afford adequate deterrence to criminal 

conduct; 

 (C) to protect the public from further crimes of the 

defendant; 

 (D) to provide the defendant with needed 

educational or vocational training, medical care, or 
6

other correctional treatment in the most effective 

manner; . . . 

(4) [the applicable Sentencing Guidelines range 

based on the defendant’s offense and criminal 

history]; 

(5) [pertinent policy statements issued by the 

Sentencing Commission]; and 

(6) the need to avoid unwarranted sentence 

disparities among defendants with similar records 

who have been found guilty of similar conduct; and 

(7) the need to provide restitution to any victims of 

the offense. 

18 U.S.C. § 3553(a), cross-referenced in 18 U.S.C. § 3583(c). 

The Sentencing Guidelines provide that violators of 

§ 2423(b) (such as Russell) should receive a term of 

supervised release ranging from three years to life. U.S.S.G. 

§ 5D1.2(b)(2). In United States v. Law, 528 F.3d 888 (D.C. 

Cir. 2008), we held that sentences within the applicable 

Guidelines range are presumed reasonable. Id. at 902; see 

Gall, 552 U.S. at 51 (allowing courts of appeal to apply such a 

presumption); Rita v. United States, 551 U.S. 338, 350-51 

(2007) (same). 

Russell does not challenge Law directly, but argues that 

Rita, in saying that an appellate presumption of 

reasonableness for within-Guidelines sentences was 

permissible under the Sixth Amendment, relied on logic that 

is inapplicable here. He says that Rita is premised on an 

assumption “that the Guidelines, insofar as practicable, reflect 

a rough approximation of sentences that might achieve 

§ 3553(a)’s objectives.” Appellant’s Br. at 15 (quoting Rita, 
7

551 U.S. at 350). Here that condition is absent, he thinks, 

because the broad range of three years to life does not serve 

§ 3553(a)(6)’s goal of “avoid[ing] unwarranted sentencing 

disparities among defendants with similar conduct.” Id. 

In embracing a presumption in favor of within-Guidelines 

sentences, the Rita Court faced—and rejected—the objection 

that such a presumption might so constrain sentencing judges’ 

discretion on the basis of judge-found facts as to deny 

defendants their Sixth Amendment rights as construed by 

Apprendi v. New Jersey, 530 U.S. 466 (2000), and its 

progeny. See 551 U.S. at 350 (alluding to Justice Souter’s 

dissent), id. at 391 (Souter, J., dissenting). Such an objection 

would be at its minimum, perhaps nil, where the presumption 

is applied to so broad a sentencing range (and one based 

entirely on the offense of conviction, quite independent of 

judge-found facts). 

Affirmatively, the Rita Court found a presumption of 

reasonableness to be proper because the trial judge and the 

Sentencing Commission are both directed to apply the same 

statutory factors, “the one, at retail, the other, at wholesale.” 

551 U.S. at 348. If the trial judge’s judgment falls within “the 

Commission’s view of the appropriate application of 

§ 3553(a) in the mine run of cases, it is probable that the 

sentence is reasonable.” Id. at 351. 

When the Commission specifies a broad sentencing 

range, that justification does not disappear—though it is of 

course weakened. And the breadth in § 5D1.2(b) can be 

reconciled with § 3553(a)(6)’s interest in avoiding 

unwarranted disparities by supposing, not unreasonably, that 

the Commission believed either that variability among 

violators of § 2423(b) made a narrower range unsuitable, or 

that allowing considerable subjectivity among sentencing 

judges might (for now at least) be reasonable, or both. See 
8

Rita, 551 U.S. at 349 (acknowledging that uniformity may 

conflict with the goals of “proportionality in sentencing 

through a system that imposes appropriately different 

sentences for criminal conduct of different severity” 

(emphasis omitted)). 

Russell notes the existence of a Commission Policy 

Statement recommending that sex offenders receive the 

maximum statutory term of supervised release, U.S.S.G. 

§ 5D1.2(b)(2) (Policy Statement), but does not challenge the 

effect the statement may have had (if any) in causing the 

district court’s selection of a term close to the high end of the 

range. To the extent that courts, both trial and appellate, are 

obliged to give at least Chevron deference to such statements, 

see United States v. Anderson, 82 F.3d 436, 439, 442-43, 446 

(D.C. Cir. 1996) (treating particular policy statement as 

worthy of at least Chevron deference), this statement’s very 

narrow range—indeed, not a range but a point—would give 

Russell a stronger Apprendi argument vis-à-vis Rita’s 

willingness to allow courts to presume an in-Guidelines 

sentence to be reasonable, at least it would if the statement 

were triggered by judge-found facts. But he makes no 

arguments with reference to the Policy Statement. We thus do 

not address its possible vulnerability vis-à-vis Rita’s reasoning 

or the Guideline itself. 

Analysis of the term of supervised release under the 

remaining § 3553(a) factors made applicable by § 3583(c) 

does not rebut the presumption established by the withinGuidelines sentence. The Policy Statement appended to 

U.S.S.G. § 5D1.2(b)(2), as we just noted, recommends that 

violators of § 2423(b) be subject to supervised release for life. 

Coupled with the computer restriction, to be sure, the duration 

of the sentence might conflict with § 3553(a)(2)(D)’s 

rehabilitative goals, but we analyze that restriction separately 

under 18 U.S.C. § 3583(d)’s criteria, which are designed 
9

specially to govern conditions; for the reasons given below, 

we vacate the restriction. Given the policy statement and the 

relaxation of the computer restriction, the remaining § 3553(a) 

factors leave intact the presumption in favor of the withinGuidelines sentence. See, e.g., Gall, 552 U.S. at 51-52. 

 Computer Restriction. Russell’s second challenge is to 

the special condition of his supervised release, providing that 

he “shall not possess or use a computer for any reason.” The 

government and Russell agree that the 30-year prohibition on 

the possession and use of computers—a prohibition not 

subject to modification by the probation office—is 

substantively unreasonable. Brief for Appellee 19; Brief for 

Appellant 18. Despite the government’s concession, the 

Supreme Court tells us that we are to conduct an independent 

review of the issue: 

The considered judgment of the law enforcement officers 

that reversible error has been committed is entitled to 

great weight, but our judicial obligations compel us to 

examine independently the errors confessed. 

Young v. United States, 315 U.S. 257, 258-59 (1942); see also 

Roberts v. Galen of Virginia, Inc., 525 U.S. 249, 253 (1999) 

(per curiam) (“Although the concession of a point on appeal 

by respondent is by no means dispositive of a legal issue, we 

take it as further indication of the correctness of our 

decision.”). While Young and Roberts involved issues of law, 

courts of appeals have also applied this doctrine to issues of 

fact. See, e.g., United States v. Cooke, 110 F.3d 1288, 1294 

(7th Cir. 1997). We can see no basis for drawing the line at a 

mixed issue of law and fact. Thus, despite the tension with 

Article III’s limitation of our jurisdiction to “cases” and 

“controversies,” and the government’s de facto power to yield 

in a defendant’s favor by a timely exercise of its prosecutorial 

discretion (a tension that of course may also inhere in rules 
10

such as those giving district courts authority to reject pleas), 

we proceed with our review. 

Sections 3583(c) and 3583(d) govern the conditions 

attached to a term of supervisory release. As we have seen, 

§ 3583(c) requires that a sentencing court, in deciding the 

duration and conditions of the supervised release, “consider 

the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), 

(a)(2)(D), (a)(4), (a)(5), and (a)(6).” And, where such a term 

is imposed, 18 U.S.C. § 3583(d) specifies certain conditions 

and grants the district court discretion to impose additional 

ones, so long as each such condition: 

(1) is reasonably related to the factors set forth in section 

3553(a)(1), (a)(2)(B), (a)(2)(C) and (a)(2)(D); 

(2) involves no greater deprivation of liberty than is 

reasonably necessary for the purposes set forth in section 

3553(a)(2)(B), (a)(2)(C), and (a)(2)(D); and 

(3) is consistent with any pertinent policy statements 

issued by the Sentencing Commission pursuant to 28 

U.S.C. 994 (a). 

18 U.S.C. § 3583(d). Because independent review shows that 

the challenged condition deprives the defendant of 

substantially more liberty than is “reasonably necessary for 

the purposes set forth in section 3553(a)(2)(B), (a)(2)(C), and 

(a)(2)(D),” it must be vacated. 

Subsections 3553(a)(2)(B) and (C) codify the penal goals 

of general and specific deterrence, requiring disincentives to 

match the severity of punishment to the harmfulness of the 

crime. Had the “child” been an actual minor and had Russell 

proceeded to have sex with her, the harm would have been 

great. Thus a stiff condition that deters would-be molesters 

and prevents Russell from reoffending may be appropriate. 
11

This court has observed that the harm inflicted when someone 

uses a computer or the internet to arrange for sex with a minor 

is generally greater than the harm inflicted when someone 

uses the internet to trade child pornography. Love, 593 F.3d 

at 12. Because of the relative harm, computer and internet 

restrictions “while perhaps unreasonably broad for defendants 

who possess or distribute child pornography, may be 

appropriate for those who use the Internet to ‘initiate or 

facilitate the victimization of children.’” Id. 

Here, however, the question is not the appropriateness of 

an internet restriction but its form and severity. A condition 

that takes into account only the magnitude of the harm from 

defendant’s offense may serve the general deterrence goals of 

§ 3553(a)(2)(B), but may be more or less severe than required 

to serve § 3553(a)(2)(C)’s goal of preventing this defendant 

from repeating his offense. The sentence already achieves 

considerable severity by its 30-year term and several other 

conditions, e.g., requirements that Russell register as a sex 

offender in any jurisdiction where he resides and not be in the 

presence of anyone under the age of 18 in a private setting 

without another adult present. 

More important for analysis under § 3583(d)(2), the 

computer restriction affirmatively and aggressively interferes 

with the goal of rehabilitation. See, e.g., United States v. 

Holm, 326 F.3d 872, 878 (7th Cir. 2003). It is hard to imagine 

white collar work in 2010 not requiring access to computers, 

just as white collar work 100 years ago would almost 

invariably have required the use of pens and pencils. In fact 

Russell’s training and experience mark him not only as a 

white collar worker but as one at the most technically 

sophisticated end of the white collar distribution. He holds a 

Bachelors of Science degree in engineering and a Masters 

degree in Strategic Intelligence, see Presentence Investigation 

Report at 8, and his 10 years as an applied systems engineer at 
12

Johns Hopkins suggest a work life fitted to the skills so 

acquired. Even a lot of blue collar work requires some 

computer use. Although we cannot rely on evidence 

developed since the sentence, it is totally unsurprising in the 

realities of the modern world that in his post-release search for 

employment Russell has evidently found that computer use is 

required for filling out most job applications, including those 

at McDonald’s, as well as discharging the duties of even low 

tech occupations, such as keeping inventory at PETCO, and 

producing frames at A.C. Moore. Oral Argument Recording 

at 30:45-31:40. See United States v. Voelker, 489 F.3d 139, 

148-49 (3rd Cir. 2007) (explaining that a restriction 

prohibiting defendant, who worked as a respiratory therapist 

before his arrest, from using computer equipment was overly 

burdensome because his employment “‘necessarily entails 

access to and the use of computers and computer equipment 

for record keeping [and] patient care’”). Because the 

computer restriction prevents Russell from continuing in a 

field in which he has decades of accumulated academic and 

professional experience, it directly conflicts with the 

rehabilitative goal of sentencing. It also, of course, places a 

substantial burden on Russell’s liberty, which under 18 U.S.C. 

§ 3583(d)(2) must be no greater than reasonably necessary to 

achieve the goals of deterrence as well as rehabilitation. 

The district court’s restriction is scheduled to elapse more 

than three decades after sentencing. A provision for 

modification by the probation department—a minimum 

change suitable on remand—would allow the restriction to 

adjust to ongoing developments in technology and to secure a 

reasonable balance between the statute’s rehabilitative and 

deterrence goals. See Love, 593 F.3d at 12. Given the ample 

room for adjusting the sentence to enable a better balance 

among those goals, the computer restriction in its current form 

is substantively unreasonable. 
13

The government’s concession, of course, is a further 

indication, under Young and Roberts, supporting our 

conclusion that the district court abused its discretion in 

imposing an unqualified prohibition on Russell’s use of 

computers. 

The experience of other courts also supports our 

conclusion. We have found only one case, United States v. 

Paul, 274 F.3d 155 (5th Cir. 2001), that upholds, against 

proper challenge, a categorical prohibition on computer 

possession or use without provision for probation office 

modification. Not only is Paul an outlier, but in key respects 

it represents a far stronger case for blanket restriction. Most 

obviously, Paul’s computer restriction was to last three years, 

or one tenth of the duration of Russell’s—a difference that 

makes Paul’s restriction both less burdensome and less likely 

to become a still poorer fit over time. Moreover, Paul had 

suggested no way in which the computer and internet ban 

would adversely affect his occupational prospects, id. at 170, 

whereas Russell made clear that his rehabilitation would 

depend at least in part on his ability to apply his professional 

training, which in turn would depend on his being able to 

access computers. Although Paul had pled guilty only to 

possessing child pornography that traveled through interstate 

commerce, in violation of 18 U.S.C. § 2252A(a)(5)(B), id. at 

158, the record showed that Paul had engaged in a sustained, 

extensive and sophisticated pattern of sexual predation over 

many years, continuously aided and magnified by the internet. 

He had, for example, given e-mail advice (presumably 

reflecting experience) on how to “find ‘young friends’ by 

scouting single, dysfunctional parents through Alcoholics 

Anonymous or local welfare offices and winning their 

friendship, thereby securing access to their young sons.” Id. 

at 158. And he had a prior child pornography conviction. Id. 

Finally, of course, the computer and internet have permeated 
14

everyday life in ways that make a restriction on their use far 

more burdensome than when Paul was decided. 

We have found no instance other than Paul where a court 

has upheld a prohibition on the defendant’s use of computers 

or the internet that was not subject to relaxation by the 

probation office. Many cases have upheld restrictions subject 

to such relaxation. Love, 593 F.3d at 11-13; Sullivan, 451 

F.3d at 892-896; United States v. Bender, 566 F.3d 748, 751-

52 (8th Cir. 2009); United States v. Lay, 583 F.3d 436, 449-50 

(6th Cir. 2009); United States v. Thielemann, 575 F.3d 265, 

278 (3rd Cir. 2009); United States v. Alvarez, 478 F.3d 864, 

866-68 (8th Cir. 2007); United States v. Johnson, 446 F.3d 

272 (2nd Cir. 2006); United States v. Crandon, 173 F.3d 122, 

125 (3rd Cir. 1999). In several of these cases defendants’ 

conduct was more egregious than Russell’s—he had either 

completed sex acts with a child (Bender, Alvarez, Johnson, 

and Crandon), or caused another to do so in order to obtain 

images of the conduct (Thielemann), or took more drastic 

steps toward completion of the acts than did Russell (Lay

(defendant flew to site of intended rendezvous after 

developing a ruse to separate the minor from his or her mother 

for the weekend)). In contrast, the courts have generated a 

large universe of decisions rejecting such unmodifiable 

restrictions, typically invoking (as here) the public interest in 

the defendant’s rehabilitation through the productive use of 

his or her skills. See, e.g., Voelker, 489 F.3d at 144-50; 

United States v. Mark, 425 F.3d 505, 508-11 (8th Cir. 2005); 

Holm, 326 F.3d at 877-78; United States v. Sofsky, 287 F.3d 

122, 124 (2nd Cir. 2002); United States v. White, 244 F.3d 

1199, 1206 (10th Cir. 2001). In at least one such case, White, 

the defendant’s conduct, unlike Russell’s, manifested a course 

of completed child molestations. Cf. United States v. 

Perazza-Mercado, 553 F.3d 65, 69-74 (1st Cir. 2009) 

(vacating a restriction prohibiting defendant from using the 

internet at his home for the fifteen year period of his 
15

supervised release, where his molestation of a nine-year old 

with special needs whom he supervised had not involved 

internet use). 

Conclusion 

 While we affirm the 30-year term of supervised release, 

we vacate the computer restriction and remand for 

proceedings consistent with this opinion. 

So ordered. 
1

Regarding that condition, whether a “tension” results, Maj. Op.

at 9, when, notwithstanding the government’s concession, we proceed

with our review is irrelevant—as the Supreme Court reminded us long

KAREN LECRAFT HENDERSON, Circuit Judge, concurring:

Although I agree with my colleagues’ decisions to affirm

the duration of Russell’s supervised release and to remand the

computer ban for refinement, I write separately to distance

myself on various points. First, I do not share the majority’s

doubt regarding “the precedential effect,” Maj. Op. at 5, of

United States v. Sullivan, 451 F.3d 884 (D.C. Cir. 2006), and

United States v. Love, 593 F.3d 1 (D.C. Cir. 2010). In Sullivan,

the “Appellant urge[d] us to review the substantive validity of

the [unobjected-to] terms of supervised release for abuse of

discretion” but “[w]e reject[ed] this argument,” holding that

“[t]he proper standard of review [t]here [was] plain error.” 451

F.3d at 894. Likewise, Love applied plain error review to four

unobjected-to conditions of supervised release, twice explaining

its application of that standard. 593 F.3d at 11, 14. It first relied

on United States v. Breedlove, 204 F.3d 267 (D.C. Cir. 2000),

and Fed. R. Crim. P. 52(b) in support thereof and later cited

Sullivan to the same effect. Id. I do not know what else is

needed to decide the scope-of-review question. Nor should

United States v. Bras, 483 F.3d 103 (D.C. Cir. 2007), eclipse the

precedential effect of Sullivan and Love. Williams Concurrence

at 1-2. Bras did not address Sullivan, perhaps because Bras

dealt with a term of imprisonment rather than conditions of

supervised release. 483 F.3d at 104. And Bras preceded Love.

Thus, while Sullivan and Love are distinguishable because “they

do not address the applicable standard with respect to the

duration of supervised release,” Maj. Op. at 5 (emphasis added),

they nevertheless remain good law regarding unobjected-to

conditions of supervised release. And on the latter point,

Sullivan and Love are of course distinguishable because Russell

did challenge the disputed condition of supervised release at

sentencing.1
2

ago, our duty of review is independent and mandatory, Young v.

United States, 315 U.S. 257, 258-59 (1942); see also United States v.

Escobar Noble, 653 F.2d 34, 36 (1st Cir. 1981) (“It is the particular

function of the court, not the prosecutor, to say the last word about the

justice of a sentence.”).

2

In Love, for example, we recognized a nation-wide move

towards broad restrictions on child predators: 

Consensus is emerging among our sister circuits that

Internet bans, while perhaps unreasonably broad for

defendants who possess or distribute child pornography,

may be appropriate for those who use the Internet to

“initiate or facilitate the victimization of children.” [United

States v.] Holm, 326 F.3d [872, 878 (7th Cir. 2003)]; see

United States v. Thielemann, 575 F.3d 265, 278 (3d Cir.

2009); United States v. Johnson, 446 F.3d 272, 283 (2d Cir.

2006); United States v. Boston, 494 F.3d 660, 668 (8th Cir.

2007); United States v. Paul, 274 F.3d 155, 169 (5th Cir.

2001). The distinction is grounded in the simple proposition

that when a defendant has used the Internet to solicit sex

with minors, “the hazard presented by recidivism” is greater

than when the defendant has traded child pornography.

Johnson, 446 F.3d at 283.

593 F.3d at 12.

Second, I do not share my concurring colleague’s faith in

the isolated Justice Department data he cites. Williams

Concurrence at 2-3. Those figures do not sway me. Assuming

their accuracy, lower recidivism rates for sex offenders can just

as easily be explained by the tight leash judges often specify for

sex offenders once released from incarceration, as my colleague

himself recognizes. Id. at 3-4.2

 

And finally, I am unwilling to subscribe to the notion that

a restriction (or ban) on a criminal defendant’s computer use, at

least where the computer enables the crime, constitutes “a
3

3

I note that, in the event the district court permits circumscribed

computer use, 18 U.S.C. § 3583(d) expressly provides: 

The court may order, as an explicit condition of supervised

release . . . that [Russell] submit his . . . computer, other

electronic communications or data storage devices or media,

and effects to search at any time, with or without a warrant,

by any law enforcement or probation officer with reasonable

suspicion . . . and by any probation officer in the lawful

discharge of the officer’s supervision functions. 

substantial burden” on liberty, Maj. Op. at 12. A defendant

convicted of vehicular homicide can permanently lose his

driving privilege and the resulting ban on his use of an

automobile—which, like Russell’s computer, enabled the

crime—does not deprive him of his liberty. That Russell’s

white collar career may be adversely affected by the computer

ban—a result the majority supports with anecdotal predictions,

Maj. Op. at 12—does not ipso facto translate into a deprivation

of liberty. We can judicially note that millions of Americans

every day perform jobs without using (or even seeing) a

computer. If Russell cannot find a job, it is more likely because

of his criminal record than the computer ban. While I do not

believe the thirty-year computer ban implicates Russell’s liberty,

I nevertheless recognize that the weight of authority is to the

contrary. For that reason, I join in the remand for the district

court to again exercise its discretion in refining3

 the computer

ban condition of Russell’s supervised release. 
 WILLIAMS, Senior Circuit Judge, concurring: I write 

separately to elaborate on two issues: the scope of review and 

the probability of recidivism. 

Scope of review. Our opinion refers to two cases, United 

States v. Sullivan, 451 F.3d 884 (D.C. Cir. 2006), and United 

States v. Love, 593 F.3d 1 (D.C. Cir. 2010), which applied a 

plain error standard of review to a defendant’s challenge of a 

discretionary condition of supervised release after he had 

failed to lodge an objection at sentencing. But in neither of 

these cases did the defendant argue or the court address 

whether a plain error standard of review is appropriate in the 

absence of an objection. The defendant in Sullivan

“acknowledge[d] that, ‘generally, where a sentencing court 

affords the defendant an opportunity to object to the special 

conditions but the defendant remains silent, an appellate court 

reviews for plain error’.” 451 F.3d at 894 (internal brackets 

omitted). Of course he could not have cited our decision in 

United States v. Bras, 483 F.3d 103 (D.C. Cir. 2007), which 

hadn’t yet issued; nor did he anticipate Bras’s argument (or 

any others) on the background question of the need for an 

objection vel non. Rather, he argued that the circumstances 

under which the challenged condition was imposed—the trial 

court announced the discretionary condition “after resolving 

objections to the PSR and after permitting defendant to make 

a statement,” he “ha[d] no meaningful opportunity to 

comment,” 451 F.3d at 894 (emphasis in the original)—

prevented him from making an objection. We rejected that 

specific argument, observing that “once appellant was made 

aware of the conditions . . . his counsel was in a position to 

respond or to seek additional time.” Id. But we did not 

consider the logically anterior question whether plain error 

review was suitable for a substantive reasonableness challenge 

not posed at sentencing. 
2

Love, appealing after Bras had issued, failed to invoke it; 

nor did he in any way raise the threshold question of whether 

plain error review is appropriate absent an objection. Rather, 

he argued that he had made an adequate objection. We 

rejected the argument, finding that counsel’s words fell short 

of the specificity requirement expressed in United States v. 

Breedlove, 204 F.3d 267 (D.C. Cir. 2000). Love, 593 F.3d at 

11. 

Thus the decisions in Sullivan and Love both lacked the 

benefit of adversarial briefing on the issue. Neither case 

considered whether, as substantive reasonableness is a 

standard of appellate review rather than a direct mandate to 

trial courts, plain error review would be appropriate. Bras, 

483 F.3d at 113. Neither case considered other arguments as 

to the likely impracticality of requiring an objection. See Maj. 

Op. at 4. 

As the Sullivan and Love courts never addressed the 

assumption that plain error review was appropriate in the 

absence of an objection, the courts’ implicit assumptions, 

under standard principles, lack precedential effect. Brecht v. 

Abrahamson, 507 U.S. 619, 630-31 (1993). It remains for a 

future case to determine whether the standard of review 

applicable to a challenge of a discretionary condition as 

substantively unreasonable should differ from the standard 

applicable to terms of incarceration under Bras. 

Risk of recidivism. At sentencing Russell argued that he 

was unlikely to repeat his offense, pointing to Department of 

Justice data on the recidivism rates for various types of 

offenders, including child molesters. The data, which Russell 

never mentioned in his appellate briefs, are quite interesting 

and seem to place child molesters at the low end of the 

distribution. One report, U.S. Department of Justice: Bureau 

of Justice Statistics, Recidivism of Prisoners Released in 1994
3

Table 10 (June 2002), available at http://bjs.ojp.usdoj.gov/ 

content/pub/pdf/rpr94.pdf, provides the percentage of 

approximately 272,111 inmates released in 1994 in 15 states 

who were rearrested within three years of release for the type 

of crime for which he/she was imprisoned, namely, homicide, 

rape, robbery, assault, burglary, larceny/theft, motor vehicle 

theft, fraud, drug offenses, and public order offenses. The 

numbers for those categories are, respectively, 1.2, 2.5, 13.4, 

22.0, 23.4, 33.9, 11.5, 19.0 , 41.2 and 31.2 percent. But 

another report, Bureau of Justice Statistics, Recidivism of Sex 

Offenders Released from Prison in 1994 Table 22 (Nov. 

2003), available at http://bjs.ojp.usdoj.gov/content/ 

pub/pdf/rsorp94.pdf, shows the analogous rates of recidivism 

for child molesters to be lower than all but two categories of 

that set of offenders, and radically lower than most. It reports 

that of the 4,295 inmates convicted of child molestation who 

were released in 1994, only 5.1 percent were rearrested for 

any sex crime within three years. 

The DOJ statistics also have implications for Russell’s 

age and his lack of prior offenses. The rearrest rate for child 

molesters with no arrests prior to the one leading to their 

imprisonment was about half that for those with a prior arrest 

for any crime. See id. at Table 28. And the rearrest rate for 

persons 45 or over was only about 60 percent of the average 

rate. See id. at Table 25. 

On appeal Russell does not argue that the sentencing 

court committed the procedural error of relying on erroneous 

facts when assessing the risk of recidivism, Gall v. United 

States, 552 U.S. 38, 51 (2007), let alone raise the Justice 

Department statistics, thereby depriving the government of a 

chance to argue why the data may not be as telling as they 

appear. It may be, for example, that assiduous supervision 

under judgments such as the one under review, as well as 

general legislation constraining the offenders’ movement and 
4

sensitizing neighbors (e.g., the various versions of Megan’s 

Law adopted by every state and by Congress by 1996, see 

Smith v. Doe, 538 U.S. 84, 89-90 (2003)), have played a key 

role in producing the low rates shown in DOJ’s statistics. 

In any event, given Russell’s failure to press the Justice 

Department figures, the other applicable § 3553(a) factors and 

the deference owed to the trial court, see, e.g., Gall, 552 U.S. 

at 51-52, I am unable to find the 30-year term of supervised 

release to be substantively unreasonable.