UNITED STATES of America, Plaintiff-Appellee, v. Kyle E. MCCLAMMA, Defendant-Appellant.
No. 16-10641
United States Court of Appeals, Eleventh Circuit.
(January 23, 2017)
Non-Argument Calendar
REVERSED and REMANDED.
Yvette Rhodes, Arthur Lee Bentley, III, U.S. Attorney‘s Office, Tampa, FL, Roger
Kyle E. McClamma, Pro Se
Before TJOFLAT, WILLIAM PRYOR, and JORDAN, Circuit Judges.
PER CURIAM:
In 2006, Kyle McClamma was convicted of possession of child pornography in violation of
I
In 2006, the district court imposed a condition of supervised release that prohibited Mr. McClamma from having direct contact with minors without the written approval of his probation officer and from entеring any area where children frequently congregate. Mr. McClamma had one daughter when this condition was imposed, and the district court did not include an exception for contact with her. Mr. McClamma did not appeal his conviction or sentence, and was released from prison in April of 2009, when he began his life term of supervised release.
In 2011, the district court clarified, on Mr. McClamma‘s motion, the terms of supervised release so as to allow Mr. McClamma to havе contact and visitation with his daughter, with the caveat that a third-party supervisor be present during their meetings. Mr. McClamma did not appeal the district court‘s clarification order.
In January of 2012, Mr. McClamma filed a motion under
Before the district court ruled on his
Mr. McClamma argued that a modification was warranted because circumstancеs had changed since the imposition of the modified condition of supervised release. He explained that he had retained full-time employment, had remarried, had a second child, and had been attending college courses twice a week. He added that the circumstances surrounding the only approved third-party supervisors, his mother and father, had changed as well: his father had recently died and his mother had been diagnosed with breast cancer in 2011 and had rеentered the workforce to pay for medical expenses. Mr. McClamma also asserted that the family court‘s determination—that it was in the child‘s best interest for Mr. McClamma to maintain equitable parental rights—was relevant.
Mr. McClammа argued in the alternative that the condition itself was substantively unreasonable and violated his constitutional right to parent a child. He argued that the condition was substantively unreasonable because the restriction was not necessary to accomplish the policy goals associated with supervised release terms and that he had demonstrated good behavior since he committed his almost decade-old offense. He also maintained that his cоnstitutional rights as a parent were not outweighed by the need for the restriction because it was not sufficiently related to his offense and there was no indication he posed a risk to children or to reoffend. Finally, Mr. McClamma argued that the restriction created a disparity between similarly-situated defendants and should be lifted under
In response, the government argued that Mr. McClamma had not demonstrated any new grounds to support a reconsideration of prior rulings on similаr requests to modify his supervised release conditions. The government argued that his constitutional and substantive unreasonableness arguments were another attempt to relitigate his
The district court adopted the magistrate judge‘s amendеd report and recommendation and denied Mr. McClamma‘s motion for modification. The R&R concluded that Mr. McClamma‘s motion did not provide new factual or legal arguments to support modification, and that a review of the
II
We review the denial of a motion to modify a condition of probation under
III
Under
Here, the district cоurt did not abuse its discretion in denying Mr. McClamma‘s motion to modify his supervised release. A review of the
We agree with the district court that Mr. McClamma‘s new marriage and the birth of his second daughter are not new circumstances that affect the restrictions imposed on his visitations with his older daughter. We came to this conclusion in our June 2015 opinion affirming the denial of Mr. McClamma‘s first motion for modification. See McClamma, 613 Fed. Appx. at 849. In that opinion we also emphasized the opposition of Mr. McClamma‘s ex-wife to the modification, see id. and Mr. McClammа has not shown that his ex-wife has changed her position. Further, while his job and classes may make it more difficult for Mr. McClamma to schedule visits with his daughter, they are not enough to show an abuse of discretion. The unfortunate death of Mr. McClamma‘s fathеr and his mother‘s diminished availability are also insufficient to remove a restriction that we affirmed a little over a year ago.1
IV
As for Mr. McClamma‘s argument that the modified condition is unconstitutional or substantively unreasonable, we join the majоrity of our sister circuits and find that the district court lacked jurisdiction to review these claims.
The Second, Fifth, and Ninth Circuits have recognized that
Significantly,
Congress, by enacting the Sentencing Reform Act of 1984, limited the manner in which a defendant may challenge the legality of a supervised release condition to: (1) direct appeal, (2)
§ 2255 habeas corpus relief, and (3) within [fourteen] days of the district court‘s decision,Rule 35[ (a)] motion. It would frustrate Congress‘[] intent if this court were to interpret§ 3583(e)(2) to authorize a district court to modify or rescind an allegedly illegal condition.
307 F.3d at 1044. Cf. United States v. Frady, 456 U.S. 152, 164-65, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982) (acknowledging that direct appeals and collateral attacks serve different purpоses and rejecting availability of “endless postconviction collateral attacks“). Mr. McClamma did not directly appeal the initial condition in 2006 or try to appeal the modification of the condition in 2011. He never filed a
V
We affirm the district court‘s denial of Mr. McClamma‘s motion to modify the conditions of supervised release and conclude that the district court lacked jurisdiction to consider Mr. McClamma‘s constitutional and substantive unreasonableness arguments.
AFFIRMED.