PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

Nos. 19-3812 & 20-2235

____________

UNITED STATES OF AMERICA

 

v.

FREDERICK H. BANKS,

 Appellant

Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Criminal Action No. 2-15-cr-00168-001)

District Judge: Honorable Mark R. Hornak 

 

 

 

Argued on March 29, 2022

Before: RESTREPO, ROTH, and FUENTES, Circuit Judges

(Opinion filed: November 30, 2022)
2

Abigail E. Horn (ARGUED)

Federal Community Defender Office for

The Eastern District of Pennsylvania

601 Walnut Street

The Curtis Center 

Suite 540 West

Philadelphia, PA 19106

Counsel for Appellant

Laura S. Irwin (ARGUED)

Office of the United States Attorney

700 Grant Street

Suite 4000

Pittsburgh, PA 15219

Counsel for Appellee

OPINION OF THE COURT

ROTH, Circuit Judge:

A jury convicted Frederick Banks of wire fraud, and the 

District Court sentenced him to 104 months’ imprisonment and 

three years’ supervised release. On appeal, Banks argues that 

the District Court erred in three ways, by (1) denying his 

constitutionally protected right to self-representation, (2) 

applying the loss enhancement to the fraud guideline in the 
3

United States Sentencing Guidelines because there was no 

“actual loss,” and (3) imposing certain special conditions of 

supervised release.1

 We conclude that the loss enhancement in 

the Guideline’s application notes impermissibly expands the 

word “loss” to include both intended loss and actual loss. 

Thus, the District Court erred when it applied the loss 

enhancement because Banks’s crimes caused no actual loss. 

We will, therefore, affirm the judgment of the District Court

except on the issue of loss enhancement; we will remand this 

case to the District Court for it to determine loss and to

resentence Banks.

I.

In January 2016, a federal grand jury indicted Frederick 

Banks for stalking, wire fraud, aggravated identity theft, and 

making false statements. The wire fraud charges “related to 

interlocking schemes . . . carried out by [Banks] to fraudulently 

gain the money and property of others in relation to the 

FOREX.COM international exchange system by submitting 

phony registration information for himself and then using those 

registrations to execute bogus trades that would drop money 

into bank accounts that he had set up.”2

 

A. The Scheme

Banks’s scheme targeted Gain Capital Group, which did 

business as Forex.com. Gain Capital’s clients opened 

accounts, deposited funds, and then used those funds to invest 

in the foreign currency exchange market. Banks’s plot was to 

1 Appellant’s Br. at 2-4.

2 Appx. 875.
4

open Gain Capital accounts and make electronic deposits into 

those accounts, but his deposits were drawn on bank accounts 

with insufficient funds. He then tried to withdraw funds from 

these accounts, “with the goal being to complete the 

withdrawals/transfers before the lack of supporting funds could 

be detected.” To support his scheme, Banks made fraudulent 

representations through text message, telephone conversations, 

and emails. He misrepresented his identity, his income, his 

occupation, his net worth, and the balances in his bank 

accounts.

Importantly, Gain Capital suffered no actual loss. 

Banks made fraudulent deposits of $324,000 and 

unsuccessfully executed 70 withdrawals/transfers totaling 

$264,000. Gain Capital, however, did not transfer a single 

dollar to Banks.

B. Banks’s Competence to Stand Trial and 

Competence to Represent Himself

Early in Banks’s prosecution, his court-appointed 

lawyer suggested to the District Court that Banks was not 

competent to stand trial and to assist in his own defense. The 

District Court concurred, relating that Banks 

appeared to be materially detached from reality, 

wholly inappropriate in his conduct, 

communications and general affect, and 

consumed, for reasons which to this day remain 

inexplicable, with the notion that the thenpending (and subsequently superseded) federal 

criminal charges should all be dismissed because 
5

in [Banks’s] estimation, [a] former FBI Agent 

had set him up in an earlier federal prosecution 

which long ago became final.3

Banks was also “fixat[ed] with the same CIA-induced ‘voice 

to skull’ telepathic communication” he referred to in an 

“allegedly fraudulent habeas petition.”4

 The District Court 

also noted that Banks had previously told this Court that he was 

not competent to stand trial or represent himself, even when he 

told the trial court in those proceedings that he was competent.

Accordingly, the District Court ordered an evaluation of 

Banks. Dr. Robert Wettstein evaluated Banks and concluded 

he “was psychotic and delusional, and was subject to various 

forms of delusional and psychotic episodes.”5

 Dr. Wettstein 

believed, however, that Banks could understand the nature and 

consequences of the criminal charges against him and could 

assist his lawyer in his defense. 

The District Court then concluded “a second 

professional opinion was necessary to protect both the rights of 

[Banks] and the integrity of the judicial process.”6

 Dr. Heather 

Ross, a forensic psychologist, concluded Banks “was so 

continuously delusional that he was not competent to stand 

trial, nor to waive his right to counsel and represent himself.”7

 

After the statutory period of restorative treatment, yet another 

forensic psychologist, Dr. Allisa Marquez, concluded not only 

3 Appx. 876.

4 Appx. 876.

5 Appx. 876.

6 Appx. 877.

7 Appx. 877-78.
6

that Banks was restored to competency, but that he had never 

been incompetent (as defined in 18 U.S.C. § 4241) because he 

did not then suffer from, and had never suffered from, “any 

mental disease or defect but was instead afflicted with a 

chronic narcissistic and paranoid personality disorder, which 

would cause him to act out of a disproportionate sense of self 

grandeur but would not make him incompetent.”8

After these evaluations, the District Court “repeatedly 

solicited the position of both the United States and [Banks’s] 

appointed counsel as to the issue of competency. They . . . each 

uniformly and consistently expressed their observation that 

[Banks] [was] neither competent to stand trial, nor to waive 

counsel and represent himself at any such trial.”9

 Combined 

with the District Court’s own observations of Banks, the 

District Court accepted the conclusions of Drs. Wettstein and 

Ross that Banks suffered from “a mental disease or defect of 

psychosis and delusional paranoia,” but the District Court also 

accepted the doctors’ conclusions that Banks was “competent 

to be tried.”10

Then the District Court considered Banks’s “repeatedly 

asserted desire to waive representation by counsel and 

represent himself.”11 Although the District Court 

acknowledged that “ordinarily, if a defendant is competent to 

be tried, that means as a matter of course that such a defendant 

is competent to represent himself,” it explained that trial court 

judges are in a “particularly apt position . . . to assess such 

8 Appx. 878.

9 Appx. 878.

10 Appx. 886.

11 Appx. 887.
7

matters, and that there can be a narrow class of cases in which 

that parallel conclusion does not hold.”12 

The District Court concluded that the “content and 

volume” of Banks’s filings demonstrated that he “is so 

detached from the reality as to what can and cannot be 

accomplished by legal processes that he has sought to assert in 

the context of a federal criminal trial that he has not knowingly 

and voluntarily waived his right to be represented by counsel 

in the defense of these serious criminal charges, and is not 

capable of doing so.”13 Although Banks “can understand the 

charges against him, and what can happen to him if he is 

convicted of them, and that he can assist his lawyer as that 

lawyer pulls the levers of justice on his behalf in the course of 

a criminal trial . . . he has no competence to make the decision 

to give up his right to be represented by a lawyer in that trial 

and related proceedings in any knowing way.”14

At trial, the jury convicted Banks of four counts of wire 

fraud and one count of aggravated identity theft.15 

C. Sentencing

Banks’s offense level computation under the United 

States Sentencing Guidelines included a special offense 

characteristic for the attempted loss Banks intended to inflict 

on Gain Capital. According to the presentence investigation 

12 Appx. 887.

13 Appx. 887.

14 Appx. 887.

15 The government dismissed the stalking and false statements 

charges. 
8

report:

The attempted loss, based on [Banks’s] 

fraudulent deposits, is $324,000. Therefore, the 

base offense level is increased by 12 because the 

attempted loss was greater than $250,000 but 

less than $550,000. USSG §2B1.1(b)(1)(G) (As 

a general rule, loss is the greater of actual loss or 

intended loss, pursuant to Application Note 3).16

The 12-point increase raised Banks’s adjusted offense level 

from 7 to 19. During sentencing, the District Court explained 

that the Sentencing Guidelines define “loss to not only be 

actual loss, but to be intended loss. And the application notes 

indicate that the intended loss counts into the calculation of the 

loss amount, even if it’s determined to be improbable or 

impossible of occurrence.”17 The District Court found that the 

loss amount exceeded $250,000, triggering the 12-point lossamount enhancement. The District Court explained that Banks

“intended to cause a loss in a pecuniary amount in excess of 

$250,000” and that Banks “by his conduct, intended to cause 

such a loss; and, therefore, it is appropriately added into the 

guidelines calculation under 2B1.1.”18

The District Court sentenced Banks to 104 months’ 

imprisonment and three years of supervised release. 

16 PSR ¶ 22.

17 Appx. 1877.

18 Appx. 1897.
9

II. 19

Banks makes three arguments on appeal. First, he

contends that the District Court erred in denying his 

constitutionally protected right to self-representation. Second, 

he asserts that the loss enhancement to the fraud guideline, 

found at U.S.S.G. § 2B1.1, should not apply because there was 

no actual loss. Third, he argues that District Court erred in 

imposing certain special conditions of supervised release. 

Because the term “loss” is unambiguous in the context of § 

2B1.1 and because the loss-enhancement commentary 

improperly expands the Guideline, we will vacate Banks’s 

judgment of sentence and remand this case to the District Court 

for resentencing. We will affirm the District Court’s orders 

denying Banks’s request to represent himself and imposing the 

special conditions of supervised release.

A. Banks’s Right to Self-Representation20

19 The District Court had subject-matter jurisdiction under 18 

U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291 

and 18 U.S.C. § 3742(a). 

20 We exercise plenary review in evaluating the legal 

conclusion of whether Banks knowingly and voluntarily 

waived his right to counsel. United States v. Peppers, 302 F.3d 

120, 127 (3d Cir. 2002) (citing United States v. Stubbs, 281 

F.3d 109, 113 n.2 (3d Cir. 2002)). We review for clear error 

the District Court’s factual findings. Id. (citing Government of 

Virgin Islands v. Charles, 72 F.3d 401, 404 (3d Cir. 1995)). 

“The right of a defendant to represent himself is structural; as 

such, ‘its denial is not amenable to harmless error analysis. 

The right is either respected or denied; its deprivation cannot 
10

Generally, criminal defendants have a constitutional 

right to eschew a lawyer and go it alone.21 That right, however, 

requires a district court to confirm the defendant knowingly 

and intentionally relinquishes the benefits of counsel.22 Banks 

wished to exercise this right, but the District Court concluded 

that Banks was incapable of knowingly and voluntarily 

waiving his right to be represented by counsel. We agree and

will affirm the District Court’s order denying Banks’s request 

to proceed without counsel.

Banks mainly contends the District Court applied the 

wrong test when it assessed whether his waiver of his right to 

counsel was knowing and voluntary. He suggests the District 

Court improperly conflated a knowing and voluntary waiver 

with a determination of Banks’s competency for selfrepresentation at trial. We disagree.

In our Circuit, a defendant may only waive his right to 

counsel if three requirements are met:

1. The defendant must assert his desire to 

proceed pro se clearly and unequivocally.

2. The court must inquire thoroughly to satisfy 

be harmless.’” Id. (quoting McKaskle v. Wiggins, 465 U.S. 

168, 177 n.8 (1984) (internal quotations omitted)).

21 See, e.g., Faretta v. California, 422 U.S. 806 (1975).

22 Faretta, 422 U.S. at 835; Johnson v. Zerbst, 304 U.S. 458, 

464-65 (1938)); see also McKaskle, 465 U.S. at 173 (the Sixth 

Amendment grants a defendant the “right to conduct his own 

defense, provided only that he knowingly and intelligently 

forgoes his right to counsel and that he is able and willing to 

abide by rules of procedure and courtroom protocol.”). 
11

itself that the defendant understands “the 

nature of the charges, the range of possible 

punishments, potential defenses, technical 

problems that the defendant may encounter, 

and any other facts important to a general 

understanding of the risks involved.”

3. The court must “assure itself” that the 

defendant is competent to stand trial.23

This appeal, and our analysis, focuses on the second 

requirement—whether the District Court properly concluded 

Banks did not knowingly and voluntarily waive his right to 

counsel. We begin with the District Court’s analysis. The 

District Court found that 

the content and volume of [Banks’s] filings 

demonstrate to this Court . . . that [Banks] is so 

detached from the reality as to what can and 

cannot be accomplished by legal processes that 

he has sought to assert in the context of a federal 

criminal trial that he has not knowingly and 

voluntarily waived his right to be represented by 

counsel in the defense of these serious criminal 

charges, and is not capable of doing so.24

The District Court added that although Banks understood the 

charges against him, and what could happen to him if 

convicted, “he has no competence to make the decision to give 

up his right to be represented by a lawyer in that trial and 

23 Peppers, 302 F.3d at 132 (internal citations omitted). We 

explained in Peppers that these three requirements are “[i]n 

skeletal form.” Id.

24 Appx. 887.
12

related proceedings in any knowing way.”25 Based on the 

District Court’s colloquies with Banks, the District Court 

concluded that Banks’s mental state, “is such that he not only 

cannot, but is not capable of, understanding what it means to 

give up his right to a lawyer and take on his own criminal 

defense representation.”26 At bottom, the District Court 

explained that Banks is incapable of “sufficiently separating 

fact from his own delusions so as to make a knowing decision 

to go it alone at trial.”27

The District Court predicated its finding that Banks 

could not understand the risks of self-representation on 

Banks’s voluminous filings and the court’s own observations 

of Banks over several years. The court had noted Banks’s 

“unrelenting focus” on his “perceived facts of the investigation 

of the prior criminal convictions on the federal criminal 

charges against him, which have long ago become final and 

conclusive,” coupled with his “unrelenting and persistent focus 

on CIA-managed ‘voice-to-skull’ technology, a construct as to 

which he admits he has no factual basis to conclude was ever 

applied to him.”28

Because the District Court properly concluded Banks 

could not knowingly and voluntarily waive his right to counsel, 

we will affirm the District Court’s order denying Banks’s 

request for a waiver of counsel.

25 Appx. 887.

26 Appx. 889.

27 Appx. 890. The District Court pointed out that Banks’s 

counsel shared this view. Appx. 890 n.14.

28 Appx. 888.
13

B. The Intended-Loss Enhancement in Guideline § 

2B1.129

Next, we turn to Banks’s argument that the District 

Court erroneously applied the intended-loss enhancement to 

his sentence when the victim suffered $0 in actual losses. The 

application of the intended-loss enhancement hinges on the 

meaning of the term “loss” as used in Guideline § 2B1.1. 

Because the United States Sentencing Commission has 

interpreted “loss” in its commentary, the weight afforded to 

that commentary may affect the meaning of “loss.”

Courts treat the Sentencing Guidelines as legislative 

rules, and the Sentencing Commission’s comments 

interpreting its Guidelines as interpretative rules.30 

Historically, first, under Bowles v. Seminole Rock & Sand 

Company,

31 and, later, under Auer v. Robbins,32 courts deferred

to the Sentencing Commission’s interpretation of its own 

regulations.

33 Application of Auer deference required courts 

to defer to the Sentencing Commission’s commentary for a 

Guideline unless that interpretation was plainly erroneous or 

29 We review this legal issue de novo. United States v. Nasir, 

17 F.4th 459, 468 (3d Cir. 2021) (en banc). We review the 

District Court’s factual findings in support of the intended-loss 

enhancement for clear error. United States v. Huynh, 884 F.3d 

160, 165 (3d Cir. 2018).

30 Stinson v. United States, 508 U.S. 36, 44-45 (1993).

31 325 U.S. 410 (1945).

32 519 U.S. 452 (1997).

33 Stinson, 508 U.S. at 45 (quoting Seminole Rock, 325 U.S. at 

414).
14

inconsistent with the Guideline.34 

Recently, however, the Supreme Court decided Kisor v. 

Wilkie, in which it made clear that, before according Auer

deference, “a court must exhaust all the ‘traditional tools’ of 

construction,”35 and determine that a regulation is “genuinely

ambiguous.”36 Under Kisor, then, a court must consider the 

“text, structure, history, and purpose of a regulation, in all the 

ways it would if it had no agency to fall back on.”37 

What’s more, a court must make an “independent 

inquiry” into the “character and context” of the reasonable 

interpretations of the regulation.38 The Supreme Court 

identified three character-and-context circumstances under 

which an agency’s otherwise reasonable interpretation should 

not receive controlling weight: (1) when an agency’s 

interpretation is not its “‘authoritative’ or ‘official position’”39;

(2) when an agency’s interpretation does not implicate its 

“substantive expertise” in some way;40 and (3) when an 

agency’s reading does not reflect its “fair and considered 

judgment” but rather is a “convenient litigating position,” a 

34 See Stinson, 508 U.S. at 47; see also U.S.S.G. § 1B1.7, 

Commentary.

35 139 S. Ct. 2400, 2415 (2019) (quoting Chevron U.S.A. Inc. 

v. Nat. Res. Def. Council Inc., 467 U.S. 837, 843 n.9 (1984)). 36 Id. at 2414.

37 Id. at 2415.

38 Id. at 2416.

39 Id. (quoting United States v. Mead Corp., 553 U.S. 218, 257 

(2001) (Scalia, J., dissenting)). 

40 Id. at 2417.
15

“post hoc rationalization”41 or parroting of a federal statute.42 

Under Kisor, then, there must be both a genuine ambiguity in 

an agency’s regulation and the character and context of an 

agency’s interpretation must fall within the regulation’s zone 

of ambiguity.43

Against this backdrop, this Court sat en banc and 

unanimously concluded that this reprised standard for Auer

deference applied to the Sentencing Commission’s interpretive 

commentary.44 “If the Sentencing Commission’s commentary 

sweeps more broadly than the plain language of the guideline 

it interprets, we must not reflexively defer. The judge’s 

lodestar must remain the law’s text, not what the [Sentencing] 

Commission says about that text.”45 That framework, then, 

applies to Banks’s challenge to § 2B1.1’s intended-loss 

enhancement.46

41 Id. at 2417 (quoting Christopher v. SmithKline Beecham 

Corp., 567 U.S. 142, 155 (2012) (cleaned up)).

42 See id. at 2417 n.5 (citing Gonzales v. Oregon, 546 U.S. 243, 

257 (2006))

43 Id. at 2415-18.

44 See Nasir, 17 F.4th at 470-71.

45 Id. at 472 (Bibas, J., concurring).

46 Nasir does not prevent courts from considering other forms 

of commentary – background commentary or commentary 

regarding departure from a Guideline – or other resources from 

the Sentencing Commission in imposing a sentence. See Nasir, 

17 F.4th at 470-71; see also U.S.S.G. § 1B1.7 (describing three 

types of commentary to the Guidelines). Nasir applies the 

Kisor process only to a court’s use of the Sentencing 

Commission’s interpretive commentary as a tool to determine 

the meaning of a Guideline. See Nasir, 17 F.4th at 470-71; see 
16

We begin with the plain text of § 2B1.1.47 The 

Guideline is titled “Larceny, Embezzlement, and Other Forms 

of Theft; Offenses Involving Stolen Property; Property 

Damage or Destruction; Fraud and Deceit; Forgery; Offenses 

Involving Altered or Counterfeit Instruments Other than 

Counterfeit Bearer Obligations of the United States.”48 The 

Guideline then provides a graduated scale based on the 

monetary amount of loss. As the victim’s monetary loss 

grows, so too does the enhancement to the defendant’s offense 

level:

also Stinson, 508 U.S. at 45.

47 Although we have suggested that “[b]y interpreting ‘loss’ to 

mean intended loss, it is possible that the commentary ‘sweeps 

more broadly than the plain text of the Guideline,’” we have 

not resolved the issue. See United States v. Kirschner, 995 

F.3d 327, 333 (3d Cir. 2021) (quoting United States v. Nasir, 

982 F.3d 144, 177 (3d Cir. 2020) (en banc) (Bibas, J., 

concurring)).

48 U.S.S.G. § 2B1.1.
17

The Guideline does not mention “actual” versus “intended” 

loss; that distinction appears only in the commentary. That 

absence alone indicates that the Guideline does not include 

intended loss.49

The government concedes that “the presumption is that 

a word carries its ordinary meaning (and thus may resolve its 

ambiguity).”50 We agree. The ordinary meaning of “loss” in 

the context of § 2B1.1 is “actual loss.” This result is confirmed

by dictionary definitions of “loss.”51 The 1993 edition of 

49 See Nasir, 17 F.4th at 471.

50 Government’s Br. at 38.

51 See, e.g., Borden v. United States, 141 S. Ct. 1817, 1830 
18

Webster’s New International Dictionary defines “loss” as:

(a) the act or fact of losing;

(b) a person or thing or an amount that is lost;

(c) the act or fact of failing to gain, win, obtain, 

or utilize;

(d) A decrease in amount, magnitude, or degree;

(e) the state or fact of being destroyed or placed 

beyond recovery; and

(f) the amount of an insured’s financial 

detriment due to the occurrence of a 

stipulated contingent event.52

The 1988 edition of Webster’s Ninth New Collegiate 

Dictionary defines “loss” as:

1a: the act of losing possession b: the harm or 

privation resulting from loss or separation c: an 

instance of losing

2: a person or thing or an amount that is lost . . .

3 a: failure to gain, win, obtain, or utilize b: an 

amount by which the cost of an article or service 

exceeds the selling price 

(2021) (a “term’s ordinary meaning informs [the court’s] 

construction.”); Bostock v. Clayton Cnty., Ga., 140 S. Ct. 1731, 

1750 (2020) (“[T]he law’s ordinary meaning at the time of 

enactment usually governs.”); Food Mktg. Inst. v. Argus 

Leader Media, 139 S. Ct. 2356, 2363 (2019) (noting that 

dictionary definitions “shed light on the statute’s ordinary 

meaning.”). 

52 WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1338 

(1993).
19

4: decrease in amount, magnitude, or degree

5: destruction, ruin

6: the amount of an insured’s financial detriment 

by death or damage that the insurer become 

liable for . . ..

53

In collecting dictionary definitions of “loss,” the United States 

Court of Appeals for the Sixth Circuit wrote that:

One dictionary defines the word to mean, among 

other things, the “amount of something lost” or 

the “harm or suffering caused by losing or being 

lost.” American Heritage Dictionary of the 

English Language 1063 (3d ed. 1992). Another 

says it can mean “the damage, trouble, 

disadvantage, [or] deprivation ... caused by 

losing something” or “the person, thing, or 

amount lost.” Webster’s New World College 

Dictionary 799 (3d ed. 1996). A third defines it 

as “the being deprived of, or the failure to keep 

(a possession, appurtenance, right, quality, 

faculty, or the like),” the “[d]iminution of one’s 

possessions or advantages,” or the “detriment or 

disadvantage involved in being deprived of 

something[.]” 9 Oxford English Dictionary 37 

(2d ed. 1989).54

Our review of common dictionary definitions of “loss” point 

to an ordinary meaning of “actual loss.” None of these 

definitions suggest an ordinary understanding that “loss” 

53 WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY 706 

(1988). 

54 United States v. Riccardi, 989 F.3d 476, 486 (6th Cir. 2021).
20

means “intended loss.” To be sure, in context, “loss” could 

mean pecuniary or non-pecuniary loss and could mean actual 

or intended loss.55 We need not decide, however, whether one 

clear meaning of the word “loss” emerges broadly, covering 

every application of the word. Rather, we must decide 

whether, in the context of a sentence enhancement for basic 

economic offenses, the ordinary meaning of the word “loss” is 

the loss the victim actually suffered.

56 We conclude it is. 

Because the commentary expands the definition of 

“loss” by explaining that generally “loss is the greater of actual 

loss or intended loss,”57 we accord the commentary no weight. 

Banks is thus entitled to be resentenced without the 12-point 

intended-loss enhancement in § 2B1.1.58

C. The Special Conditions of Supervised Release59

55 See id. (“‘loss’ can mean different things in different 

contexts.”).

56 A plain and ordinary reading of § 2B1.1 confirms “loss” 

means “actual loss.” It is only when we turn to the commentary 

that the ambiguity of “actual” or “intended” loss is injected.

57 U.S.S.G. § 2B1.1 App. Note 3(A).

58 Our holding should not be read as imposing any restriction 

on a district court’s discretion to vary a sentence when 

appropriate.

59 We review a district court’s decision to impose special 

conditions of supervised release for abuse of discretion. 

United States v. Icker, 13 F.4th 321, 327 (3d Cir. 2021) (citing 

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

however, a defendant fails to object to a special condition at 

sentencing, we review the imposition of special conditions for 
21

Finally, Banks argues the District Court erred by 

imposing four special conditions of supervised release: (1) 

barring Banks from purchasing digital devices without 

approval; (2) barring Banks from conducting certain financial 

transactions without approval; (3) imposing costs and fees on 

Banks; and (4) requiring Banks to “cooperate in the collection 

of DNA as directed by the Probation Officer, pursuant to 28 

C.F.R. § 28.12, the DNA Fingerprint Act of 2005, and”—as 

Banks underscores on appeal—“the Adam Walsh Child 

Protection and Safety Act of 2006.”60 

The government contends that Banks did not properly 

preserve his challenges to the special conditions because he did 

not object to any of them at sentencing. Banks concedes that 

his challenges to the device-purchase and financialtransactions conditions are unpreserved, so we will review 

those conditions for plain error. The parties dispute whether 

plain error or abuse of discretion guides our review of the costs 

plain error. Icker, 13 F.4th at 327 (citing United States v. 

Maurer, 639 F.3d 72, 77 (3d Cir. 2011)). The Supreme Court 

described a four-part inquiry courts should follow when 

conducting plain-error review under Federal Rule of Criminal 

Procedure 52(b): “[t]here must (1) be an ‘error’ that (2) is 

‘plain’ and (3) ‘affects substantial rights’” of the defendant. 

United States v. Williams, 974 F.3d 320, 340 (3d Cir. 2020) 

(quoting United States v. Olano, 507 U.S. 725, 732 (1993)). 

“If these three conditions are satisfied, then it is within the 

sound discretion of the court of appeals to correct the forfeited

error—but only if (4) the error seriously affects the fairness, 

integrity or public reputation of judicial proceedings.” 

Williams, 974 F.3d at 340 (quoting Olano, 507 U.S. at 732).

60 Appx. 8.
22

and fees award and the DNA collection requirement under the 

Adam Walsh Act. It does not matter because under either 

standard we will affirm. We address each condition of 

supervised release in turn.

First, the District Court barred Banks from purchasing 

digital devices without approval.

61 Banks argues the condition 

is “contradictory, vague, and violates” 18 U.S.C. § 

3583(d)(2).62 We disagree. The District Court’s condition is 

not contradictory because it merely forbids Banks from 

purchasing new digital devices, not from using digital devices 

he already owns. The District Court’s condition is not vague 

because it gives Banks fair warning of his legal obligation.63 

A condition of supervised release “is void for vagueness if it 

‘either forbids or requires the doing of an act in terms so vague 

that men of common intelligence must necessarily guess at its 

meaning and differ as to its application.’”64 We are 

unpersuaded, however, by Banks’s argument that “computers, 

cell phones, or electronic communication or data storage 

devices” is so vague Banks must guess at its meaning. Further, 

61 The special condition explained Banks shall not “purchase 

computers, cell phones, or electronic communication or data 

storage devices without the consent of the probation officer.” 

Appx. 8.

62 Appellant’s Br. at 49. Banks contends that this condition 

contradicts with a later condition that states Banks “is 

permitted to possess and/or use a computer and is allowed to 

access the internet.” Appx. 8.

63 See United States v. Maloney, 513 F.3d 350, 357 (3d Cir. 

2008). 

64 Id. (quoting United States v. Lee, 315 F.3d 206, 214 (3d Cir. 

2003)).
23

Banks can either ask his probation officer for guidance or can 

bring an as-applied challenge should an issue arise.65

The device-purchase condition also does not violate 18 

U.S.C. § 3583(d)(2)’s requirement that special conditions be 

narrowly tailored. Banks argues this restriction “may apply to 

benign devices such as fitness trackers and smart appliances” 

and that with respect to computers “any safety concerns are 

already addressed by other conditions—providing usernames 

and passwords, installing monitoring software, and conducting 

unannounced examinations.”66 However, we agree that the

District Court properly limited Banks’s access to digital 

devices based on “the mechanisms by which [he] engaged in 

[his] fraudulent conduct.”67 The District Court explained why 

it ordered these special conditions:

Mr. Banks, I’m imposing those computer 

restrictions because that’s the tools you use to 

trick other people, to try and take their money, to 

try and enrich yourself, to commit fraud. And I 

specifically find in the facts of your case that 

there’s no basis for the Court to conclude that 

you’re not unwilling to continue to do so. Those 

are the tools of the fraud that you committed in 

this case. Those are the tools of the crimes of 

conviction in this case.

65 See, e.g., United States v. Comer, 5 F.4th 535, 544 (4th Cir. 

2021) (concluding the defendant “can always bring an asapplied challenge down the road if she believes her rights have 

been violated by a specific application of the condition.”).

66 Appellant’s Br. at 52.

67 Appx. 1972.
24

When I couple that with your prior record of 

federal criminal convictions for fraud, the 

aggravated identity theft conviction in this case, 

your willingness to cause turmoil in the lives of 

other people by legal filings, by financial 

chicanery, I specifically find and conclude that 

it’s necessary for you to comply with the law and 

to fulfill the purposes of supervised release that 

all of those conditions be in place in your case.68

The District Court’s findings and reasoning support the devicepurchase conditions and are narrowly tailored to Banks. We 

will affirm the device-purchase conditions.

Second, the District Court barred Banks from 

conducting certain financial transactions without approval. 

The District Court prohibited Banks from “engag[ing] in 

financial transactions in any single amount in excess of 

$500.00 (or cumulatively within any 7 day period in excess of 

$100[0].00) without approval of the probation office.”69 Banks 

argues this condition is vague and violates 18 U.S.C. § 

3583(d)(2). For example, Banks suggests that it is unclear 

whether he is barred from using an ATM to deposit a paycheck 

or withdraw cash to pay his rent. Such a reading is not one that 

“men of common intelligence” would guess at or differ as to 

68 Appx. 1974-75.

69 Appx. 9. The District Court inadvertently wrote $100.00 in 

its written special conditions, but during the oral sentencing the 

District Court explained the cumulative amount was 

$1,000.00. See Appx. 1973.
25

its application.70 Indeed, conditions “may afford fair warning 

even if they are not precise to the point of pedantry,” and “can 

be written—and must be read—in a commonsense way.”71 We 

disagree the financial-transactions condition is vague. 

For the same reasons, we agree that the financialtransactions condition does not violate 18 U.S.C. § 3583(d)(2). 

Banks identifies myriad mundane transactions—paying rent, 

utility bills, and other expenses—that are barred by this 

condition and which must mean it is not narrowly tailored. To 

be sure, this condition could render modern life difficult, where 

much commerce is transacted using electronic devices.72 That 

is true, though, of many conditions of probation. Banks 

himself concedes he can simply get approval from his 

probation officer to pay his bills online or to use an ATM to 

withdraw needed funds. For these reasons, we conclude the 

financial-transactions condition does not violate 18 U.S.C. § 

3583(d)(2). 

Third, the District Court imposed certain costs and fees 

on Banks.73 Banks contends that the District Court gave no 

reason for these conditions, in violation of 18 U.S.C. § 

3583(d)(1) and (2). Banks further asserts that he is indigent, 

lacks family support and housing, and cannot afford to pay a 

fine. The condition, however, is permissive, not mandatory. 

70 Maloney, 513 F.3d at 357 (quoting Lee, 315 F.3d at 214).

71 United States v. Gallo, 20 F.3d 7, 12 (1st Cir. 1994).

72 See, e.g., United States v. Albertson, 645 F.3d 191, 199 (3d 

Cir. 2011).

73 See Appx. 1970-73 (explaining several times that Banks 

“may be required to contribute to the cost of treatment services 

in an amount not exceeding the actual cost.”).
26

Although the written special conditions say Banks “shall be 

required to contribute to the costs of services,”74 the District 

Court’s oral sentence states that Banks “may be required to 

contribute to the cost of treatment services[.]”75 We “follow 

the ‘firmly established and settled principle of federal criminal 

law that an orally pronounced sentence controls over a 

judgment and commitment order when the two conflict.’”76 

So, the District Court’s oral pronouncement that Banks “may” 

have to contribute controls.

More importantly, Banks’s challenge to this potential 

imposition of costs is unripe. Because the probation office 

indeed might not require Banks to contribute to these costs, his 

challenge “rests upon contingent future events that may not 

occur as anticipated, or indeed may not occur at all.”77 If 

Banks wishes to conform the written special conditions to the 

District Court’s oral pronouncement, he may move under 

Federal Rule of Criminal Procedure 36 to do so. But we may 

not review his unripe challenge to a potential special condition. 

Finally, the District Court ordered that Banks “shall 

cooperate in the collection of DNA as directed by the Probation 

Officer, pursuant to 28 C.F.R. § 28.12, the DNA Fingerprint 

Act of 2005, and the Adam Walsh Child Protection and Safety 

74 Appx. 9.

75 See, e.g., Appx. 1971.

76 United States v. Chasmer, 952 F.2d 50, 52 (3d Cir. 1991) 

(quoting United States v. Villano, 816 F.2d 1448, 1450 (10th 

Cir. 1987)).

77 Texas v. United States, 523 U.S. 296, 300 (1998) (cleaned 

up).
27

Act of 2006.”78 Banks contends that the District Court’s 

reference to the Adam Walsh Act should be excised because 

the Act enacted the Sex Offender Registration and Notification 

Act and “the false implication that a person is a sexual offender 

carries enormous social and legal disadvantages.”79 In its oral 

sentence, the District Court simply said Banks must 

“participate in the collection of DNA as directed by the 

probation office.”80 Neither reference to the Adam Walsh Act 

in the written sentence nor the District Court’s oral sentence 

give the false implication that Banks is a sexual offender. 

Again, nothing about requiring Banks to participate in DNA 

collection or referencing the Act “seriously affects the fairness, 

integrity or public reputation of judicial proceedings.”81

III.

For the reasons stated above, we will affirm the 

District Court’s order denying Banks’s request to waive his 

right to counsel as well as the District Court’s order 

imposing special conditions of supervised release. Because 

we hold that “loss” in the context of U.S.S.G. § 2B1.1 is 

not ambiguous, we will vacate the judgment of sentence 

and remand this case so that the District Court can

resentence Banks without the intended-loss enhancement.

78 Appx. 8.

79 Appellant’s Br. at 56-57.

80 Appx. 1972.

81 Williams, 974 F.3d at 340 (quoting Olano, 507 U.S. at 732).