United States Court of Appeals

For the Eighth Circuit

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No. 11-3784

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

William Earl Mefford

lllllllllllllllllllll Defendant - Appellant

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 Appeal from United States District Court 

for the Western District of Arkansas - Ft. Smith

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 Submitted: March 11, 2013

 Filed: April 4, 2013

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Before MURPHY, SMITH, and GRUENDER, Circuit Judges.

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MURPHY, Circuit Judge.

After William Mefford pled guilty to failure to register as a sex offender, the

district court sentenced him to 18 months imprisonment and 10 years supervised 1

The Honorable Robert T. Dawson, United States District Judge for the

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Western District of Arkansas.
release. Mefford challengestwo of his special conditions ofsupervised release which

prohibit him from possessing or obtaining any pornographic material. We affirm.

I.

In 2010 Mefford conditionally pled guilty to failure to register as a sex offender

in violation of 18 U.S.C. § 2250. Mefford was required to register as a sex offender

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because he had previously been convicted of sexually abusing his daughter from her

age 7 to 14. His criminal history also includes two arrests for indecent exposure

when he was a juvenile and convictions for outraging public decency by hiding in a

women’s restroom at the state fair and taking pictures from under a stall, presenting

a forged instrument, and being a felon in possession of a firearm. After pleading

guilty to the failure to register offense, Mefford completed his 18 month prison

sentence and began his 10 years of supervised release in January 2011.

While on supervised release in September 2011, Mefford’s probation officer

visited his home and found a pornographic magazine titled “FinallyLegal.” The front

cover of the magazine included a disclaimer that all of the featured women were age

18 or older and portrayed as adults, but the images throughout were of women

dressed and styled in a way to give the appearance of teenage school girls. It is

undisputed that this was a legal magazine, and Mefford’s possession of it did not

violate any existing conditions of his supervised release. His probation officer was

nonetheless concerned because the women had been made to appear underage, and

such material might lead Mefford to engage again in deviant sexual behavior.

The next day Mefford met with his probation officer and agreed to a

modification of the conditions of his release so that he would be “prohibited from

His conviction was recently affirmed. United States v. Fernandez, et al., No. 2

12-2784 (8th Cir. Apr. 1, 2013) (per curiam).

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possessing pornography in any form.” In a signed form Mefford waived his right to

a hearing and the assistance of counsel regarding this change. At that time Mefford

was being represented in the appeal of his conviction by a federal public defender,

who immediately contacted him upon learning of the modified condition. Then

through counsel, Mefford moved the district court to find his earlier waiver of

counsel involuntary and to reconsider the modification. The district court held a

hearing on the motion, Mefford and his probation officer testified, and the magazine

was introduced as an exhibit.

The district court concluded that Mefford had validly waived his rights and

decided to modify his conditions ofsupervised release. The court imposed three new

special conditions, the first two related to possessing or obtaining any pornographic

material:

i. Defendant shall not access, view, possess, or have under his

control any pornography, including any material that depicts or

alludes to sexual activity, or sexually explicit conduct as defined

by 18 U.S.C. § 2256(2). This includes, but is not limited to, any

such material obtained through access to any computer or any

other electronic device, and any that are self-produced.

ii. Defendant shall not enter any location where pornography,

erotica, or adult entertainment can be obtained or viewed.

The district court explained that it had conducted an “individualized inquiry into the

facts and circumstances underlying [Mefford’s] case” and found these special

conditions to be reasonably related to the sentencing factors in 18 U.S.C. § 3553(a).

The court cited Mefford’s history of sexually abusing his daughter and taking

pictures under the stall in a women’s bathroom, as well as his past arrests for indecent

exposure, as indications of his acting on “sexual perversions.” Even though the

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magazine in Mefford’s possession was legal, it was worrisome to the court because

it was meant to depict youthful persons and thus supported a finding that Mefford

poses a risk of repeating “his sexual deviant conduct towards children.” The court

explained that a total pornography ban would help Mefford resist his “apparent

temptations and deter him from once again crossing the line to sexually assault a

child.” Mefford appeals special conditions one and two of his supervised release.3

II.

We review the district court’s imposition of the terms and conditions of

supervised release for abuse of discretion. United States v. Boston, 494 F.3d 660,

667 (8th Cir. 2007). A district court enjoys broad discretion over a defendant’s

conditions ofsupervised release provided that each condition (1) isreasonably related

to the pertinent § 3553(a) sentencing factors, (2) involves no greater deprivation of

liberty than reasonably necessary for the purposes set forth in § 3553(a), and (3) is

consistent with any pertinent policy statements issued by the United States

Sentencing Commission. Id. An “individualized inquiry” must be conducted and

sufficient findings entered in the record to ensure that the condition satisfies these

statutory requirementssince conditions ofsupervised release cannot be categorically

imposed on all those convicted of a particular offense. United States v. Schaefer, 675

F.3d 1122, 1124–25 (8th Cir. 2012). Since we are “particularly reluctant to uphold

sweeping restrictions on important constitutional rights,” we review constitutional

challenges to such conditions de novo. Id. (citation omitted) (internal quotation

marks omitted).

Beyond his challenge to special conditions one and two, Mefford argues that 3

an earlier condition he had agreed to with his probation officer was invalid because

he had not voluntarily waived his rights. This argument is moot because that

condition was replaced by special conditions one and two.

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Mefford first argues that special conditions one and two are neither supported

by individualized fact finding nor reasonably related to the pertinent § 3553(a)

sentencing factors. We disagree. The district court specifically stated that it had

conducted an “individualized inquiry” into Mefford’s case. The court explained that

a ban on all pornography was warranted because technically legal material like the

“Finally Legal” magazine found in his possession could nonetheless stimulate sexual

deviance towards children. It also cited a number of relevant sentencing factors,

including Mefford’s criminal history and characteristics, deterrence and protecting

the public from future crimes, and Mefford’s rehabilitation. See 18 U.S.C.

§ 3553(a)(1)–(2). We conclude that the district court did not abuse its discretion in

concluding that a complete ban on Mefford’s possessing or obtaining pornographic

material is appropriate.

Mefford next argues that special conditions one and two involve a greater

deprivation of liberty than reasonably necessary because they are unconstitutionally

overbroad and vague. We “carefully review broad bans on possessing sexually

explicit materials because they implicate important First Amendment rights.” United

States v. Deatherage, 682 F.3d 755, 764 (8th Cir. 2012). We will only strike down

a condition of supervised release as unconstitutionally overbroad “if its overbreadth

is real and substantial in relation to its plainly legitimate sweep.” United States v.

Thompson, 653 F.3d 688, 695 (8th Cir. 2010). We have however upheld a number

of supervised release conditions that substantially limit or completely ban sex

offenders from possessing pornography. See United States v. Kelly, 677 F.3d 373,

377 (8th Cir. 2012) (citing cases). In contrast, we often reject conditions banning

materials with “nudity” because such breadth may well reach protected forms of art. 

Id. (citing cases).

We conclude that special conditions one and two are not unconstitutionally

overbroad. The district court intended that Mefford only be prohibited from

possessing or obtaining pornography, thus steering clear of our nudity case law. The

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district court explained that these “are limited restrictions that serve the purpose of

[§] 3553(a) while preserving the Defendant’s right to view and/or possess nonobscene material that may contain nudity.” On this record we cannot conclude that

any overbreadth in these restrictions is “real and substantial” in relation to their

“plainly legitimate sweep.” Thompson, 653 F.3d at 695.

Special condition one bans Mefford frompossessing “any pornography.” This

language is similar to that in many conditions we have previously upheld. See, e.g.,

United States v. Wiedower, 634 F.3d 490, 492, 496–97 (8th Cir. 2011) (any “form of

media containing pornographic images”); Boston, 494 F.3d at 667–68 (“any form of

pornography”); United States v. Ristine, 335 F.3d 692, 694–95 (8th Cir. 2003) (“any

pornographic materials”). In light of Mefford’s past sex crimes, his rehabilitation,

and the need to protect children fromfuture exploitation, we believe that banning him

from possessing “any pornography” is “appropriately tailored” to his circumstances

and thus constitutional. See Ristine, 335 F.3d at 694–95. Our conclusion that this

special condition is not overbroad is also supported by the fact that the term“sexually

explicit conduct” is modified by its definition in 18 U.S.C. § 2256(2), which

describes only graphic sex acts. In addition, we understand the phrase “including any

material that depicts or alludes to sexual activity” as limited exclusively to material

that is considered “pornography,” the word immediately preceding that phrase in

special condition one. 

We next turn to special condition two which prohibits Mefford from“enter[ing]

any location where pornography, erotica, or adult entertainment can be obtained or

viewed.” This language is virtually identical to wording we have previously upheld. 

See Ristine, 335 F.3d at 694–95 (defendant prohibited from entering “any

establishment where pornography or erotica can be obtained or viewed”). Some of

our more recent cases have upheld bans on sex offenders’ entering certain locations

where the “primary” product orservice being offered is pornography, erotica, or adult

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entertainment. See, e.g., United States v. Muhlenbruch, 682 F.3d 1096, 1105 (8th

Cir. 2012); Boston, 494 F.3d at 664, 667–68. While such limiting terms might have

been useful here, we nevertheless conclude that special condition two is

constitutional.

For these reasons we affirm the imposition of special conditions one and two

on Mefford’s supervised release.

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