United States Court of Appeals

For the Eighth Circuit

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No. 14-2118

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United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Nakia Phillips

lllllllllllllllllllll Defendant - Appellant

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 Appeal from United States District Court 

for the Eastern District of Missouri - St. Louis

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 Submitted: January 12, 2015 

Filed: May 5, 2015

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Before SMITH, BENTON, and SHEPHERD, Circuit Judges.

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BENTON, Circuit Judge.

In 2001, Nakia Mack Phillips pled guilty to statutory rape. In 2012, he failed

to register as a sex offender and was sentenced to 24 months’ imprisonment and 10

years’ supervised release. In 2014, two months into his release, the Probation Office

moved to revoke supervision. Phillips admitted violating release conditions, including

unsupervised contact with minors. The court sentenced him to 24 months’

imprisonment and supervision for life. As a special release condition, Phillips cannot
“possess or use . . . a computer, . . . gaming equipment, cellular devices, or any other

device with access to any ‘on line computer services,’ or subscribe to or use any

Internet service, . . . without the written approval of the probation office.” Phillips

appeals the lifetime supervision and the special condition. Having jurisdiction under

28 U.S.C. § 1291, this court affirms the lifetime supervision, vacates the special

condition, and remands.

This court reviews revocation sentences for abuse of discretion. United States

v. Richey, 758 F.3d 999, 1001 (8th Cir. 2014). “A district court abuses its discretion

and imposes an unreasonable sentence when it fails to consider a relevant and

significant factor, gives significant weight to an irrelevant or improper factor, or

considers the appropriate factors but commits a clear error of judgment in weighing

those factors.” United States v. Wiedower, 634 F.3d 490, 493 (8th Cir. 2011). See

18 U.S.C. § 3553(a) (sentencing factors).

Phillips challenges the substantive reasonableness of lifetime supervision. The

district court said it “considered all of the 3553(a) factors.” Acknowledging that

lifetime supervision “is a huge burden,” the court noted that Phillips is “a danger, and

. . . risk to the community” and he violated his release “after such a short period.” The

Guidelines range for supervised release was five years to life. “If the district court

imposes a within-Guidelines sentence, this court presumes the sentence is reasonable,

and [Phillips] bears the burden to rebut the presumption.” United States v. Manning,

738 F.3d 937, 947 (8th Cir. 2014). On appeal, Phillips makes no legal argument

rebutting the presumptive reasonableness of lifetime supervision. The sentence is no

abuse of discretion.

This court reviews terms and conditions of supervised release for abuse of

discretion. United States v. Mefford, 711 F.3d 923, 926 (8th Cir. 2013). The

discretion to impose special conditions is limited by 18 U.S.C. § 3583(d). United

States v. Crume, 422 F.3d 728, 732 (8th Cir. 2005). “Under § 3583(d), a district court

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may impose special conditions of supervised release if the conditions are reasonably

related to the sentencing factors set forth in § 3553(a), involve no greater deprivation

of liberty than is reasonably necessary for the purposes set forth in § 3553(a), and are

consistent with any pertinent policy statements issued by the Sentencing

Commission.” United States v. Morais, 670 F.3d 889, 895 (8th Cir. 2012). “When

crafting a special condition of supervised release, the district court must make an

individualized inquiry into the facts and circumstances underlying a case and make

sufficient findings on the record so as to ensure that the special condition satisfies the

statutory requirements.” Wiedower, 634 F.3d at 493. “The lack of individualized

findings, however, does not require reversal if we can discern from the record the

basis for the court’s imposition of the condition.” Morais, 670 F.3d at 895. 

In its Sentencing Computation, the Probation Office reported:

[Phillips’s] manager also indicated that they have received complaints

from teenage females that Phillips had made them uncomfortable and

was overly flirtatious with them. One female alleged that Phillips

showed her a picture of his penis and the image was on his cell phone. 

A phone analysis was conducted by the St. Louis City Police Department

Cyber Crimes Unit and there were two pictures of the offender’s naked

penis . . . along with numerous pornographic pictures of adult females.

At the revocation hearing, the government did not pursue—and Phillips did not

admit—the teenage females’ complaints about his flirtatiousness nor the allegation

that he showed a picture of his penis. The Sentencing Computation does not indicate

how Phillips acquired the adult pornography. At the hearing, the government said: 

[A]s to whether or not he had shown cellphone pictures to teenage girls

at the mall, I don’t believe it has been disputed that a forensic

examination was made of his cellphone, and that there were pictures of

his private parts on there. . . . He took nude pictures of himself. He

downloaded obscene material . . . .

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Phillips did not object to the government’s statement that he “downloaded obscene

material.”1

 The court said: 

I understand this is not a child pornography case, but it does involve sex

with an underaged person. . . . I know that the allegation that he was

showing pictures of that he had on his cellphone of his penis to . . . girls

at the mall. [T]hat allegation has not been proven. He has not admitted

it. It was certainly a part of the report to the Court, and I think it is

undisputed that a forensic examination of his cellphone did show not

only pictures of himself, his penis on the cellphone, but it also contained

other pornographic photographs. Admittedly, it was not child

pornography. It contained other pornographic photographs.

The record does not indicate that Phillips ever possessed child pornography.

In Crume, this court vacated a broad ban on computer and Internet access

without written approval when the defendant never “used his computer for anything

beyond simply possessing child pornography.” Crume, 422 F.3d at 733. This court

was “not convinced that a broad ban from such an important medium of

communication, commerce, and information-gathering is necessary given the absence

of evidence demonstrating more serious abuses of computers or the Internet.” Id.

Rather, this court was “confident that the district court can impose a more

narrowly-tailored restriction on [defendant’s] computer use through a prohibition on

accessing certain categories of websites and Internet content and can sufficiently

ensure his compliance with this condition through some combination of random

1

Later, Phillips’s counsel said, “Now, with respect to what’s on the telephone[,]

I think that the condition he not possess obscene material will cover this.” When the

court said, “I think based on the things that you admit were found in the forensic

examination of the cellphone,” Phillips’s counsel said, “I don’t know that he admitted

to it – I just said that . . . I believe that the condition for possessing obscene material

would cover anything like that.” 

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searches and software that filters objectionable material.” Id. (noting a “particular[]

reluctan[ce] to uphold sweeping restrictions on important constitutional rights”). See

also Wiedower, 634 F.3d at 495 (“[T]he record only shows that Wiedower used his

computer to receive and access child pornography, which under Crume is insufficient

to sustain a broad computer and internet ban” even with prior approval).

In Morais, this court “decline[d] to construe Wiedower and Crume as

establishing a per se rule that a district court may never impose a prior-approval

Internet use restriction based on a defendant’s receipt and possession of child

pornography.” Morais, 670 F.3d at 896, 897 (affirming ban where defendant

“collected 8,200 images of child pornography over more than a decade,” “the offense

involved material that portrays sadistic or masochistic conduct or other depictions of

violence,” and expert testified “that without successful treatment, [defendant] was

likely to repeat the same conduct”). See also United States v. Deatherage, 682 F.3d

755, 759, 764 (8th Cir. 2012) (affirming prior-approval ban because “computer use

and internet access were central to” defendant’s possession of child pornography, he

graphically described sexual acts with children in online chat, and he violated pre-trial

release condition by accessing Internet); United States v. Bender, 566 F.3d 748, 750,

751-52 (8th Cir. 2009) (affirming prior-approval ban on computer and Internet access

where defendant “arranged on-line to meet a woman for sexual relations[] and pursued

a sexual relationship despite discovering that she was a minor” and viewed

pornography on public library computer).

The special condition bans Phillips from accessing the Internet without written

approval. The court apparently premised the ban on Phillips’s possession of adult

pornography, including pictures of his own penis, and his statutory rape conviction.2

2

This court cannot discern from the record whether the court imposed the ban

based on the allegation that Phillips showed pictures of his penis to girls. To the

extent the court relied on that allegation, the court did not make sufficient findings on

the record.

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Because possessing child pornography may not necessarily justify a broad ban on

Internet access, Crume, 422 F.3d at 733, a court exceeds its discretion under § 3583(d)

by banning Internet access for possessing adult pornography. The prior-approval

provision does not save this ban, because Phillips only possessed adult pornography. 

See Wiedower, 634 F.3d at 495 (“Crume, with a similar prior-approval provision,

forecloses this argument, at least where the defendant only received and possessed

child pornography.”). Cf. United States v. Munjak, 669 F.3d 906, 908 (8th Cir. 2012)

(affirming, on plain error review, prior-approval Internet ban because defendant used

computer to distribute child pornography); United States v. Durham, 618 F.3d 921,

944-45 (8th Cir. 2010) (same); United States v. Stults, 575 F.3d 834, 856 (8th Cir.

2009) (affirming, on abuse-of-discretion review, prior-approval Internet ban, with

exception for employment use, where defendant distributed child pornography). 

On remand, lesser restrictions on Phillips’s Internet access may be consistent

with § 3583(d). See Crume, 422 F.3d at 733 (noting availability of technology to

block certain sites). See also United States v. Poitra, 648 F.3d 884, 891 (8th Cir.

2011) (“[P]reventing a defendant—who has a demonstrated sexual interest in

children—from possessing all sexually explicit material is reasonably related to

preventing the defendant from committing sexual offenses in the future.”), citing

Wiedower, 634 F.3d at 497 (“[T]he district court was well within its discretion to

prohibit Wiedower from possessing pornography or sexually explicit material because

the record supports the district court’s conclusion that Wiedower had a deeply rooted

affinity for child pornography. . . . [W]e still believe that [the ban] would likely

facilitate his rehabilitation and protect the community by reducing the chance he will

relapse into this dark world”).

* * * * * * *

The lifetime supervision is affirmed. The special condition is vacated and the

case remanded for proceedings consistent with this opinion.

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