7 F.4th 1058
11th Cir.2021Background
- In 2013 Cordero pleaded guilty to accessing with intent to view child pornography; he was sentenced to 12 months + 1 day imprisonment and 10 years of supervised release.
- Supervised-release special conditions included: standard condition #13 (probation may direct defendant to notify third parties of risks), no direct contact with minors (except his children) without permission, and prohibition on computer/internet use without written approval.
- In July 2017 the district court entered a sealed order permitting Probation to require Cordero to disclose details of his security/home-automation work and to inform prospective clients of his sex-offender status, out of concern for minor exposure during installations.
- Cordero filed pro se motions: (1) clarification, (2) modification to remove the internet/computer restriction (invoking Packingham), and (3) early termination of supervised release under 18 U.S.C. § 3583(e)(1); the district court summarily denied them.
- On appeal Cordero argued the sealed order unlawfully modified his release (requiring a Rule 32.1 hearing and U.S.S.G. § 5F1.5 findings), the internet restriction is unconstitutional post-Packingham, and the court abused its discretion in denying early termination. The Eleventh Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the July 2017 sealed order impermissibly modified supervised-release conditions / imposed an occupational restriction requiring a hearing and §5F1.5 findings | Cordero: sealed order added a new occupational restriction (must disclose work and notify clients of sex-offender status), so Rule 32.1(c) hearing and USSG §5F1.5 findings were required | Government: order merely enforced preexisting standard condition #13 (third-party notification); not a modification; appeal of original condition is untimely/waived | Court: enforcement of condition #13, not a modification; no hearing or §5F1.5 findings required; challenge to original condition is time- or waiver-barred; claim denied |
| Whether the internet/computer restriction violates the First Amendment in light of Packingham and whether the district court erred in denying modification | Cordero: Packingham invalidates broad online restrictions; internet ban is greater than necessary and unconstitutional | Government: restriction is tailored to an internet-related sex offense, consistent with Guidelines and §3553(a); §3583(e)(2) is not a vehicle to collaterally attack constitutionality | Court: denial affirmed; restriction reasonable given offense and Guidelines; Packingham distinguishable; Bobal and circuit precedent foreclose Packingham-based challenge via §3583(e)(2) |
| Whether the district court abused its discretion in denying early termination under §3583(e)(1) | Cordero: low recidivism risk, compliance, treatment completed, §3553(a) factors favor early termination | Government & Probation: concerns about recidivism risk, need for continued treatment and public protection | Court: denial affirmed; record implies district court considered §3553(a) factors and did not abuse its discretion |
Key Cases Cited
- United States v. Dixon, 901 F.3d 1322 (11th Cir. 2018) (standard of review for question of law vs. abuse of discretion on supervised-release modification)
- United States v. Futrell, 209 F.3d 1286 (11th Cir. 2000) (same)
- United States v. Serrapio, 754 F.3d 1312 (11th Cir. 2014) (review for abuse of discretion in supervised-release modifications)
- United States v. Ritter, 118 F.3d 502 (6th Cir. 1997) (noting employer notification can fall within third-party notification condition)
- United States v. Zinn, 321 F.3d 1084 (11th Cir. 2003) (sentence—including supervised-release conditions—is final judgment immediately appealable)
- United States v. Carpenter, 803 F.3d 1224 (11th Cir. 2015) (upholding computer-access limits for sex offenders who used computers in their offenses)
- United States v. Bobal, 981 F.3d 971 (11th Cir. 2020) (Packingham does not invalidate supervised-release computer restrictions tailored to internet-related offenses)
- United States v. Lussier, 104 F.3d 32 (2d Cir. 1997) (§3583(e)(2) is not a vehicle to attack legality of supervised-release conditions)
- United States v. Hatten, 167 F.3d 884 (5th Cir. 1999) (district court lacks jurisdiction to modify conditions on illegality grounds under §3583(e)(2))
- United States v. Gross, 307 F.3d 1043 (9th Cir. 2002) (same principle)
- United States v. Johnson, 877 F.3d 993 (11th Cir. 2017) (summary denials must leave a record that implies consideration of §3553(a) factors)
- Packingham v. North Carolina, 137 S. Ct. 1730 (2017) (Supreme Court struck down an overly broad social-media ban for registered sex offenders; distinguished in this context)