926 F.3d 1044
8th Cir.2019Background
- Donald Thomas Perrin pleaded guilty to production of child pornography (18 U.S.C. § 2251) and committing a felony involving a minor while required to register as a sex offender (18 U.S.C. § 2260A).
- District court sentenced Perrin to 360 months (count 1) and 120 months (count 2) consecutive, and imposed supervised release with a special condition: no computer use or online access without probation approval.
- At sentencing Perrin objected to the condition as overbroad insofar as it prohibited any computer use, asking instead for a limitation to unlawful computer use or ordinary daily activities; he did not invoke the First Amendment or cite Packingham.
- Perrin appealed for the first time arguing the special condition violated the First Amendment under Packingham (overbroad and impermissibly restricted lawful speech).
- The district court found Perrin had used online apps (Kik, FaceTime) to sexually communicate with a minor and to produce child pornography; he had prior probation contacts with minors and continued improper contact after indictment.
- The Eighth Circuit reviewed for plain error (Perrin failed to preserve a First Amendment objection) and affirmed, holding the condition reasonably tailored and not a greater deprivation of liberty than necessary because it permits access with probation approval and Perrin used the Internet to produce/communicate with a minor.
Issues
| Issue | Plaintiff's Argument (Perrin) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether the supervised-release condition banning computer/online access without probation approval violates the First Amendment as overbroad | Condition is overbroad and impermissibly restricts lawful speech (rely on Packingham) | Condition is a valid, supervised-release restriction tied to offense and narrowly tailored by requiring probation approval rather than an absolute ban | Condition upheld; no reversible error — permits access with probation approval and relates to Perrin’s internet-facilitated sexual offenses |
| Whether appellate review should be for abuse of discretion or plain error given failure to raise First Amendment below | (implied) contends review should consider Packingham | Gov argued abuse of discretion; court may choose standard | Court reviews for plain error because Perrin failed to preserve the First Amendment claim |
| Whether Packingham requires vacatur of internet restrictions in supervised-release conditions | Packingham invalidates broad internet-access bans on registered sex offenders | Packingham does not control where condition is part of supervised release, tailored, and related to internet-based offending | Packingham distinguishable: it addressed a post-sentence statutory ban; supervised-release condition here is custodial/post-conviction supervision and fact-specific |
| Whether the condition involves greater deprivation of liberty than reasonably necessary under 18 U.S.C. § 3583(d) | Condition is excessive and restricts constitutional rights beyond necessity | Condition is not a total ban, allows probation-approved access, and relates to defendant’s use of internet to prey on minors | Condition does not involve greater deprivation than reasonably necessary and is permissible |
Key Cases Cited
- Packingham v. North Carolina, 137 S. Ct. 1730 (2017) (Supreme Court struck down a blanket statutory ban on registered sex offenders’ access to social-media sites as violating the First Amendment)
- United States v. Durham, 618 F.3d 921 (8th Cir. 2010) (upheld supervised-release internet-approval condition as not an abuse of discretion)
- United States v. Pirani, 406 F.3d 543 (8th Cir. 2005) (en banc) (preservation rule: constitutional rights must be timely raised to preserve appellate review)
- United States v. Olano, 507 U.S. 725 (1993) (plain-error standard and forfeiture doctrine)
- United States v. Bender, 566 F.3d 748 (8th Cir. 2009) (affirmed computer/internet restrictions where defendant produced child pornography)
- United States v. Fonder, 719 F.3d 960 (8th Cir. 2013) (standards of review for supervised-release conditions)