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 : N o vember 30, 2022)2 A b igail 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 the3 United States Sentencing Guidelines because there was no

“actual loss

, ” and (3) imposin g 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 appli ed the loss

enhancement because Banks’s crimes caused no actua l 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 indic ted 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 tha t 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 for eign currency exchange market. Banks’s plot was to

1 Appellant’s Br. at 2

- 4.

2 Appx. 875.4 open Gain Capital account s 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, “wi th 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 Dis trict 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 then

pending (and subsequently superseded) federal criminal charges should all be dismissed because5 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 refer re d 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 comp etent.

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 o f [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 ma ke 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] [wa s] 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 Dr s . Wettstein and

Ross that Banks suffer ed 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 exp lained 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

T he 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 leve r s 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 kno wing way.” 14

At trial, t he 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

characteri stic for the attempted loss Banks intended to inflict on Gain Capi tal. According to the presentence investigation

12 Appx. 887.

13 Appx. 887.

14 Appx. 887.

15 The government dismissed the stalking and false statements charge s

.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 of fense 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 calculati on 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 loss

amount enhancement. T he District Court explained that Banks

“int ended 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 t erm “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 D istrict Court’s orders denying Banks’s request to represent himself and imposing the special conditions of supervised release.

A. Banks’s Right to Self

- Representation 20

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

w aived 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

Vir gin 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 cannot10 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 knowing ly 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 wh ether 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 self

representation 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 ha rmless.’” 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 McKaskl e , 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 pr otocol.”).11 itself that the defendant understands “t he 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

d efendant 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

demonst rate to this Court . . . that [Banks] is so detached from the reality as to wh at 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 t o 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

conclude d 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 i s 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 volumin ous 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 §

2B1.1 29

Next, we turn to Banks’s argument that the District Court erroneously applied the intended

- loss enhancement t o 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

Co mpany , 31 and, later, under Auer v. Robbins

, 32 courts deferred

to the Sentencing Commission’s interpretation of its own regulations

. 33 A pplication 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 finding s 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 woul d 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 circumsta nces 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 th e 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 a lso 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; see16 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

Invo lving 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 is sue. 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; tha t 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, 183018 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) t he state or fact of being destroyed or placed beyond reco very; and (f) the amount of an insured’s financial

detriment due to the occurrence of a stipulated contingent event. 52

The 198 8 edition of Webster’s Ninth New Collegiate Dictionary defines “loss” as:

1a: the act of losing possession b: the harm or privation r esulting 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 W EBSTER ’ S T HIRD N EW I NTERNATIONAL D ICTIONARY 1338 (1993).19 4: decrease i n 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. 199 2 ). 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, o r 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 W EBSTER ’ S N INTH N EW C OLLEGIATE D ICTIONARY 706 (198 8 ).

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 ge nerally “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 Release 59

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 for21 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 chall enges 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 financial

transaction s 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 defend ant.
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 purch asing 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

con tradicts 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 chall enge 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 s mart 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

Di strict 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

re strictions 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 as

applied challenge down the road if she believes her rights have been violated by a specific applicati on 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 t he 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 device

purchase 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 an y 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 deposi t 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 financial

transactions 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 tailore d. 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 su pport 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 ( e xplaining 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 o rder 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 pro nouncement, 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 B anks contends that the District Court’s

reference to the Adam Walsh Act should be excised because

the Act enacted the Sex O ffender Registration and Notification Act and “the false implication that a person is a sexual offender

carries enormous social and l egal 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

- lo ss 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).