NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0618n.06 No. 12-5843 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, P laintif f-App ellee,

v. AL PHONZ O WRI GHT, Defendan t-Appellant. ) ) ) ) ON AP P EAL FROM THE UNI TED STATES DI STRI CT COURT FOR THE WES TERN DI STRI CT OF TEN

NESSEE O P I N I O N

BEFORE: NORRIS, COOK and McK EAGU E, Circuit Judges. ALAN E. NORRIS, Circuit Judge. Def endant Alphonzo W ri gh t pleade d g uilty to one

co u n t of transporting child pornog raphy in interstate commerc e in violation of 18 U.S.C. § 2252(a) (1), and to one count of possession of a computer containing child pornog raphy in violation of 18 U.S.C. § 2252(a) (4)( B)

. He re ce i v ed a sentenc e of 144 months of incar cer ation, whi ch he does not challeng e on appea l. Howeve r, he contends that the district court abuse d i t s discretion when it imposed these conditions as part of his ten-y ear term of s u p er v i s ed release: 1) being forbidden to reside with any child under the ag e of 18; 2 ) s u b m i t t i n g t o periodic urinaly sis
tests as di rec ted by his probation officer; 3) b ei n g b arr ed from using a computer that has i nterne t

acc ess without the prior approva l of his probation office r; and 4) having to abide by a curf ew as set by his probation office r.No. 12-5843

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right I. I n Marc h of 2011, the Br adley County , Tenne ssee Sheriff’ s Depa rtment beg an an online investigation as part of an initiative to underc over those consuming or traff ick i n g i n child pornog raphy

. T h e i n vestig ation led office rs to defe ndant and his computer, which contained a siz able number of illega l imag es. Def endant pleade d g u i l t y t o two counts of a three -count indictment, and also ag ree d to a forf eit ure provision. At the time of the arr est, defe ndant was 45 y ear s-old, unmarrie d, employ ed, and w ithout any prior convic tions. II. When defe nse counsel lodge s a timely objection to a term of supervised rele ase, we revie w the district court’ s d ec ision with respe ct to that term for an abuse of discretion. United States v. Carter , 463 F.3d 526, 528 (6th Cir. 2006). Finding such an abuse require s us to have a definite conviction that the district court “committed a clea r err or of judgme nt.” Id. (quoting United States

ex rel. A+ Homec are, Inc. v. Medshare s Mgmt. Gr o u

p , Inc. , 400 F.3d 428, 450 (6th Cir. 2005)). Howeve r, when defe nse counsel fails to raise an o b j ec t i o n , our revie w is for plain err or. United S tates v. Butl er , 297 F.3d 505, 517 (6th Cir. 2002). Plain err or requires a showing t h at t h er e wa s

err or, that wa s plain, and that it aff ecte d the substantial rig hts of the ac cused. Id.

. We now turn to eac h of the four conditions of his s u p e r v is ed rele ase challeng ed by defe ndant. 1. Residence with a Minor The orde r of supe rvised re lease contains this condition: The defe ndant shall not direc tly or indirectly have any contac t w ith a ny child under ag e 18; shall not reside w ith a ny child under the ag e of 18; a nd shall not loit er ne ar school y ards, play g rounds, s wimming pools , arc ades or o t her places freque nted by children. - 2 -No. 12-5843

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right

At sentenc ing defe nse counsel lodge d this objec tion: “w e would object to that [provisi on] beca use

. . . there ’s a chanc e that it would prohibit him from actua lly res i d i n g with someone in a family environment should he decide to marry and have children within that period of supervised rele ase, then he may

not be able to live with his own child.” The district court responde d that the condition does not prec lude him from marry ing or living with his child: “[the condition] is not desig ned to prec lude him from marry ing and having children of his own with whom he would reside provided that ever y thing is subject to the supervision of the probation office r.” Howeve r, the judgme nt itself does n o t ex plicitly ref lect that exception to the condition. First, we must de termine whether this c ondition is ripe for revie w. In United States v. Lee , 502 F.3d 447, 450 (6th Cir. 2007), we held that a specia l condition is not ripe for revie w when there is a likelihood that it may not be imposed. The g overnme nt contends that defe ndant’s ag e, the fac t that he has a leng thy sentenc e ahea d of him , an d t h at h e has never marrie d, or fathe red children,

means that the challeng ed condition may never take eff ect. Fur thermore , if it does, then defe ndant may reque st that the district court modify this condition pursuant to 18 U.S.C. § 3583(e)

. Whil e we ag ree that this arg

ument has some forc e, another decision of this c ourt, which is f actua lly closer to the instant c ase, sug g ests that defe ndant’s condition is ripe for appea l. United States v. Zobel , 696 F.3d 558, 573 (6th Cir. 2012) (conditions of supervised rele ase may be ripe for revie w at imposit ion of sentence unless the challeng ed condition i s “potential, ra ther than ma ndatory ”) (citing Lee ). I n Zobel , as in this case , the defe ndant challeng ed a condition that barr ed him from having contac t with - 3 -No. 12-5843

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right any person under t he age of 18 unless the m inor’s par ent is prese nt or has bee n notified of hi s sex offe nse, arg

uing that “this condition would restric t his ability to have contac t with his own children, should he one day become a father.” Id. at 574. I n holding that the i ssue was ripe for revie w, we distinguish ed Lee and reasoned: “Z obel’s conditions do not include any thing akin to the pot ential

use of a penile plethy smogr aph [t he condition challeng ed by L ee], and indeed are not potential at all. R at h er t h ey are mandatory .” Id. at 573. Zobel is indisti ng uishable from the instant case and we there fore hold that defe ndant’s cha lleng e is ripe f or re view. Turning to the merits, we are aided by a Th i rd C i rc u i t d ecision. United States v. Loy , 237 F.3d 251 (3d Cir. 2001). Once ag ain, the trial court imposed as a condition of supervised rele ase that defe ndant was proh i b i t ed from having unsupervised contac t with minors. Although he had no children, defendant arg

ued that the condition “mig ht deter him from exercising his constitutional rig ht to procre ation.” Id. at 269. The Thir d Circuit resolved the matter in this manner: There is ce rt ainly a leg itimate question as to whether the rec ord would support a finding that L oy repr esents a threa t to an infant child of his own. But it is unnece ssary to decide this question, beca use we believe it unlikely that the District Court intended its condition to extend so far

. Given the sever e intrusion on L oy ’s family li fe t h at would otherwise result, we believe that, absent a clea rer sign from the District Court, the conditi on should be construed t o apply only to other people’s children, and not to L oy ’s own. I f, at some later date, the District Court should come to believe that it is ne cessa ry for the protec tion of the public or for L oy ’s reha bilitation to extend the condition to L oy ’s own children, it may consider m o d i fi ca t i ons to the conditi on in acc ordanc e with 18 U.S.C. § 3583(e) ; the constitutionalit y of the restric t i o n can likewise be r eviewe d at that time. Loy , 237 F.3d at 270. This logic is even more compelling in the instant case . As mentioned ear lier, the district cou rt expli citly stated at sentenc ing that the challeng ed condition “is not desig ned to prec lude him from marry ing and having children of his own with whom he wou l d re side.”

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United States v. W

right Acc ording ly , we ad o p t t h e reasoning of Loy and hold that the condition prohibiting contac t with persons unde r 18 y ear s old does not ext end to def endant’ s future c hildren. 2. Drug Testing Although defe ndant had no history of substance abuse, the judgme nt includes the following

s t an d ar d co n dition: “def

endant

. . . shall submit to periodic urinaly sis test[s ] as direc ted by the probation office r to deter mine the use of any controlled substance.” T h i s is a standard condition found in order s of supervised rele ase. At the sentenc ing hear ing, the following exchang e occur red betwee n the cour

t and def ense c ounsel: Court: The defe ndant shall cooper ate or shall p articipate in drug

testing and trea tment, an d I re ally don’t have a drug – can I take that one out, is that okay , Mr. Pay lor [defense counsel]? Counsel: Yes.

Court: I ’m g oing to take that out. Sometimes the timeframe makes us worry

about that. I do think that the defe ndant shall participa te in mental health tre atment as dire cted by the proba tion officer

. Def endant focuse s on this colloquy in support of his position that t h e co u rt did not intend for the periodic dr

ug -testing condition to be included in the orde r of supe rvised re lease

. Def endant concedes that he is statutorily require d to submit to a cer tain amount of drug testing: “ defe ndant [shall] ref rain fr om a

ny unlawful use of a controlled substance and submit to a drug test within 15 day s of rele ase on supervised rele ase and at least 2 periodic drug tests there afte r (as de termined by the court) for use of a controlled subst ance .” 18 U.S.C. § 3583(d). In his view, howeve r, the other provision respe cting drug testing—tha t h e submit to unlimit ed testing at the

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right direc tion of his probation office r—swee ps too broadly and does not ref lect the intent of the district court whic h indicated that it would “take that out.” There are three provisions rela ted t o drug testing that often appea r in a ty pical order of supervised rele ase: the mandatory provision provided by statute; the standard condition of random testing challeng ed by defe ndant; and an order instructing the defe ndant to parti cipate in a drug
trea tment prog ram. Participation in a drug trea tment prog ram, which is contemplat ed b y the
sentenc ing g uidelines, is appropr iate whe n d efendant “is an abuser of narc otics, other controlled substances or alcohol.” U.S.S.G. § 5D1.3(d)( 4). That specia l condition was omitted by the district
court in the instant case and, as we rea d the rec ord, it was this provision that the court was ref err ing
to w hen it a sked defe nse counsel if it c ould “ take that one out.” The provision to w hich defe ndant objects falls under the portion of the super vised rele ase or der tha t is labeled “Standa rd Conditions of Release .” I n our view, that condition is not overly restric tive and is consistent with the g uidelines. Moreove r, afte r defe ndant has serve d his twelve- y ear s entenc e, he may move the court for a modification of the c ondition. 18 U.S.C . § 3583(e)

. C. I nterne t Acce ss The district cour

t also imposed this special condition: The defe ndant shall not possess or use a computer with acc ess to any “on-line service ” or other form of wirele ss communication at an y location (including employ ment) without the prior approva l of the Probation Offic er. This includes any I nterne t Service Provider, bulletin board s y stem or any other private network or email sy stem. Def endant objected and the district court noted that it was not prohibiting acc ess to computers, but simply requiring that defe ndant obtain appr oval from his proba tion officer : - 6 -No. 12-5843

United States v. W

right All they had to do was g et the appr oval [of the probation officer] . . . . We approve all the time individuals who are working and they have to have acc ess to a computer, that’s not an issue, but we’ re g oing to have to on occa sion m ak e sure that the computer is not being u s ed i nappropr iately

. I think that takes care of i t, doesn’t it , without the prior appr oval of the pr obation office r.

. . . .

I think it is a g ood idea to have people [wit h] internet acc ess, I don’t have any prob l em wi t h t h at. .

. . We don’t want [ defe ndant] to not be able to g et a job. We understand the technolog y is going to chang e. Any thing else? That was a g ood point, but I think that is cover ed by the prior approva l of the off

icer

. As defe ndant rec og nizes, this is a comm o n s pecia l condition with respe ct to individuals convicted o f ch i l d p ornog raphy crimes. Whil e there is no question that some restric tions can be imposed—defe ndant conce des that his b an from using bulletin boards is leg itimate—courts have strug g led with the scope of such restric tions. Be cause specia l conditions must be rea sonably rela ted
to the sentenc ing fac tors contained in 18 U.S.C

. § 3553(a) , they are problematic. For instance, among the factors i s the need for “vocational training” and, as the court rec og nized, computer s in the work setting are ubiquitous. This court has acknow ledg ed that “ther e appea rs to be a consensus that internet bans a

r e u n r e a s o n a b ly b r o a d f

o r defe ndants who possess or distribute child pornog raphy , b u t n o t t h o s e who use the internet to ‘initiate or fac ilitate the victimiz ation of children.’ ” United States v. Lantz , 443 F. App’ x 135, 144 (6th Cir. 2011) (quoting United States v. Love , 593 F.3d 1, 12 (D.C. Cir. 2010))

. Her e, defe ndant contends that there was no evidenc e that he was any thing but

a consumer of child pornog raphy and he thus urg es us to rema nd to allow the district court to fashion

a less restric tive order , as the First Circuit did in United States v. Perazza-Me rcado , 553 F.3d 65, 73- - 7 -No. 12-5843

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right 74 (1st Cir. 2009) (re fer ring to evolving technolog ies that allow for more nuance d co m p u ter restric tions). We rec og nize that this repr esents a close issue. For instance, the Third Circui t h as struck down a complete ban on the use of computers with internet acc ess that included use for employ ment or education. United St ates v. Voe lker , 489 F.3d 139, 149-50 (3d Cir. 2007). Howeve r, t he court

rec og nized that some restrictions are permissible as l ong as t hey are appropr iately tailored. In the instant ca s e, t h e b an is not absolute; defe ndant may use the internet as long as he obtains the permission of his probation office r. This distinction, in our view, rende rs the condition rea sonable and consistent with the sentenc ing objectives of 18 U.S.C. § 3 5 5 3 an d 18 U.S.C. § 3583(d). Moreove r, def

endant may

move for a

modification of this condition upon his release

. 4. Curfew The final specia l condition objected to rea d s as follow: “The defe ndant shall abide by an evening curf

ew as set by the P robation Officer .” Defen se counsel did not object to this condition and our revie w is there fore for plain err or. We detec t none. The district court acte d withi n its discretion whe n imposing a c urfe w. And, as with the other c halleng ed conditions, defe ndant may seek a modification of its terms upon rele ase. III. The judg ment is aff

irm ed

.

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