United States v. Billy
711 F. App'x 467
| 10th Cir. | 2017Background
- Lowell Billy is a convicted violent sex offender (rape, kidnapping, forcible sodomy) who later pleaded guilty to failing to register as a sex offender and was sentenced to 24 months’ imprisonment followed by lifetime supervised release.
- While on supervised release he tested positive for methamphetamine and had his release revoked; after serving prison time he returned to supervised release with additional special conditions (sex-offender treatment, polygraph, pornography ban, and computer/internet restrictions requiring probation approval).
- A 2016 forensic scan of Billy’s phone allegedly revealed hundreds of adult pornography images (some sadistic/masochistic) and evidence he had used a browser to view pornography and deleted logs; his probation officer filed a revocation petition alleging multiple violations.
- Billy admitted the violations at a revocation hearing; the district court sentenced him to 23 months’ imprisonment followed by lifetime supervised release and imposed a special condition forbidding use/possession of any computer or device with internet access without prior written probation approval.
- Billy appealed, arguing the internet-access restriction was unlawful; he conceded the issue was not preserved, so the Tenth Circuit applied plain-error review and affirmed.
Issues
| Issue | Plaintiff's Argument (Billy) | Defendant's Argument (Government / Probation) | Held |
|---|---|---|---|
| Whether banning internet/computer access without probation approval was unlawful | The condition is not reasonably related to 18 U.S.C. § 3553(a) factors, is greater than necessary, and his conviction did not involve internet use | Condition is tailored to Billy’s history (violent sexual offenses + recent possession of violent pornography) and protects the public; probation retains discretion to permit needed access | Affirmed: no plain error; condition reasonably related to defendant’s history and public safety and contains a probation-officer "safety valve" |
| Whether differences from precedent Walser render the condition plainly erroneous | Walser involved child-porn possession and 3-year supervision; modern internet reliance and lifetime supervision make restriction more burdensome | Walser controls; similar conditions have been upheld and error is not clear under settled law | No plain error: Walser still persuasive; differences not enough to make any error plain |
| Whether the condition violates liberty more than necessary given lifetime supervision | Restriction is overly broad and unduly burdensome for lifelong term in modern internet society | Probation approval mechanism limits deprivation; condition aimed at preventing reoffense and facilitating treatment/monitoring | No plain error: the limitation on probation discretion and nexus to risk weigh against finding a due-process or proportionality violation |
| Whether Billy established plain error prongs (error, plainness, prejudice, fairness) | Argues district court failed to explain nexus to §3553(a) and that error affected his substantial rights | Government points to record (pornography on phone, violent history) and prior agreement to condition | Billy failed to meet plain-error standard — cannot show error was "clear or obvious" and failed prong four; substantial-rights prong acknowledged but insufficient overall |
Key Cases Cited
- United States v. Walser, 275 F.3d 981 (10th Cir. 2001) (upholding internet-access restriction requiring probation approval under plain-error review)
- United States v. Barela, 797 F.3d 1186 (10th Cir. 2015) (discussing effect of circuit disagreement on plain-error analysis)
- United States v. Bustamante-Conchas, 850 F.3d 1130 (10th Cir. 2017) (en banc) (plain-error review framework for preserved issues)
- United States v. DeChristopher, 695 F.3d 1082 (10th Cir. 2012) (defining "clear or obvious" legal error standard under plain-error review)
- United States v. Carillo, 860 F.3d 1293 (10th Cir. 2017) (setting out plain-error prongs and application)