UNITED STATES OF AMERICA v. PAUL GLEN HAMILTON, JR.
No. 19-4852
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
January 22, 2021
PUBLISHED. Argued: December 11, 2020. Appeal from the United States District Court for the Northern District of West Virginia, at Martinsburg. Gina M. Groh, Chief District Judge. (3:19-cr-00010-GMG-RWT-1)
Before WILKINSON, AGEE, and RICHARDSON, Circuit Judges.
Affirmed in part and vacated and remanded in part by published opinion. Judge Wilkinson wrote the opinion, in which Judge Agee and Judge Richardson joined.
ARGUED: Kristen Marie Leddy, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Martinsburg, West Virginia, for Appellant. Kimberley DeAnne Crockett, OFFICE OF THE UNITED STATES ATTORNEY, Martinsburg, West Virginia, for Appellee. ON BRIEF: William J. Powell, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia, for Appellee.
In July 2019, Paul Glenn Hamilton, Jr., pled guilty to one count of possession of child pornography under
I.
The record in this case reflects the disturbing manipulation and brutal sexual exploitation
On September 11, 2018, at Hamilton‘s direction, A.C. took a Lyft from her home in West Virginia to Hamilton‘s house in Maryland. During the hour-and-a-half drive, A.C. was on the phone giving a road-by-road accounting of the route. Hamilton directed her to be dropped off a few houses down from his residence, so as not to alert his parents with whom he was living. Hamilton hid her in his closet for several hours until his parents left the house and raped her twice before taking her into Virginia on the way to South Carolina. During the trip, Hamilton took her cell phone, so that she had no way of contacting her parents. She was able to steal her phone back briefly and contacted her parents, who alerted the police. Hamilton and A.C. stopped at a motel in Suffolk, Virginia, where he sexually assaulted her a third time and photographed the two of them together in bed. Defendant forced A.C. into the shower with him, at which point the police knocked on the door. He threatened to kill A.C. if she responded to the police, but the police were able to retrieve her from the hotel room.
The officers took A.C. to a medical facility in Virginia for a rape kit, which positively identified Hamilton‘s DNA in the sample collected. While the officers were at the medical center, Hamilton‘s cell phone pinged at A.C.‘s address in West Virginia. Defendant was then arrested in Berkeley County, West Virginia. Despite a protective order prohibiting Hamilton‘s contact with A.C., he later tried to get a message to her through a friend of hers on social media.
Hamilton was indicted on one count of possession of child pornography in the Northern District of West Virginia on January 23, 2019. On July 24, he pled guilty to that charge. He was later sentenced to ten years of imprisonment and a lifetime of supervised release with the standard conditions of supervision, as well as twenty-five special conditions. He objected to the following conditions as being overbroad and not sufficiently related to his conduct: (7) “You must not work in any type of employment without the prior approval of the probation officer;” (11) “You must not access the Internet except for reasons approved in advance by the probation officer;” and (12) “You must not go to, or remain at, any place where you know children under the age of 18 are likely to be, including parks, schools, playgrounds, ball fields, childcare facilities, movies, and arcades.” J.A. 104. The district court overruled his objections and Hamilton timely appealed.
II.
A.
As part of an overhaul of the federal criminal code in the 1980s, Congress abolished parole for federal prisoners and replaced it with a system of supervised release. See Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1987, 1999–2000, 2027. Unlike parole, supervised released is imposed by district courts for a particular term at sentencing and “does
District judges exercise significant discretion in setting the length and conditions of supervised release within parameters set by both federal statutes and the Sentencing Guidelines. First and foremost,
- “the nature and circumstances of the offense and the history and characteristics of the defendant,”
- “adequate deterrence to criminal conduct,”
- “protect[ion of] the public from further crimes of the defendant,”
- effective education, training, and treatment for the defendant,
- “the applicable guidelines or policy statements issued by the Sentencing Commission,”
- “the need to avoid unwarranted sentence disparities among defendants with similar records,” and
- “the need to provide restitution to any victims.”
Id. § 3553(a) .
In addition to a set of mandatory conditions, the district court may order a “further condition of supervised release, to the extent such [a] condition . . . is reasonably related to the” aforementioned factors, “involves no greater deprivation of liberty than is reasonably necessary for the purposes set forth” above, and “is consistent with any pertinent policy statements issued by the Sentencing Commission.”
Second, the Sentencing Guidelines supplement the statutory provision with additional guidance for the imposition of supervised release. For example, they include a policy statement that “the statutory maximum term of supervised release is recommended” for those convicted of sex offenses.
Taking these two sources together reveals a system that vests substantial discretion in the district court for determining the length and conditions of supervision. The defendant‘s assigned probation officer also has discretion and plays a significant role in the day-to-day management of supervised release. For example, the probation officer provides the defendant with instructions on reporting, provides authorization as to appropriate living situations, determines whether the defendant can leave the judicial district in which he resides, and visits and inspects the defendant‘s home for contraband items. See
B.
This system of supervised release serves several purposes as demonstrated by the selected sentencing factors that
In addition to these statutory purposes, supervised release also represents an act of faith that conditions less than full-scale incarceration will reduce recidivism and repetition of the misconduct that landed the defendant in jail in the first place. See, e.g., United States v. Siegel, 753 F.3d 705, 708–09 (7th Cir. 2014) (discussing the role of supervised release in reducing recidivism); United States v. Rivera, 192 F.3d 81, 87–88 (2d Cir. 1999) (recognizing the relationship between the term of imprisonment and the term of supervised release in preventing recidivism). But this faith must not be blind. Rather, it must be backed up with meaningful restrictions and reporting requirements or else judges, Congress, and the public will lose confidence in the system‘s
III.
In this appeal, Hamilton challenges three special conditions of supervised release: the employment restriction, the Internet restriction, and the location restriction. We address them seriatim.
We review the imposition of special conditions of supervised release “for abuse of discretion, recognizing that district courts have ‘broad latitude’ in this space.” United States v. Van Donk, 961 F.3d 314, 321 (4th Cir. 2020) (quoting United States v. Dotson, 324 F.3d 256, 260 (4th Cir. 2003)). As noted in the previous section, discretion is baked into this system at two levels. First, the district judge has substantial discretion in setting the terms and conditions of release. Second, the probation officer has significant discretion in applying and monitoring the terms and conditions set by the court.
A.
The employment restriction states that Hamilton “must not work in any type of employment without the prior approval of the probation officer.” J.A. 104. Defendant argues that this “condition is not reasonably related to the facts of the case, and . . . is overly broad in its scope.” Appellant Brief at 8–9. We agree that this condition was overbroad and lacked a sufficient nexus to the nature and circumstances of the offense.
Although the statutory grant of authority to district courts does not limit the kinds of special conditions they may impose, it does require that any such condition be “reasonably related to,” inter alia, “the nature and circumstances of the offense and the history and characteristics of the defendant.”
To ensure comportment with the statutory requirements, “[a] sentencing court must provide an individualized explanation for why any special conditions it imposes are appropriate in light of the
Some restriction on employment may indeed be in order, but the all-encompassing restriction here lacks an appropriate nexus to “the nature and circumstances of the offense.”
The overbreadth and vagueness of the condition leads to a second problem: the probation officer has completely unguided discretion. Unlike an employment condition that prohibits certain types of employment or jobs that involve interacting with certain groups of people, this condition provides Hamilton‘s probation officer with no bounds on how to exercise his discretion. This lack of “a more definitive standard to guide the probation officer‘s discretion” gives the officer “an unfettered power of interpretation” that effectively “delegat[es] . . . ‘basic policy matters . . . for resolution on an ad hoc and subjective basis‘” without providing meaningful guidance to defendant as to the kinds of employment he may accept upon his release. United States v. Loy, 237 F.3d 251, 266 (3d Cir. 2001) (quoting Grayned v. City of Rockford, 408 U.S. 104, 109 (1972)).
This is not to deny probation officers a significant measure of discretion. We recognize the difficulty of writing restrictions that protect the public without turning the conditions sheet into a prolix code of Hammurabian proportions. The “conditions . . . need not ‘describe every possible permutation, or spell out every last, self-evident detail‘” but can vest some interpretive role in the officer. Van Donk, 961 F.3d at 325 (quoting United States v. Johnson, 446 F.3d 272, 280 (2d Cir. 2006)). There simply need to be some general parameters set on that discretion related to the record in this case.
Nothing in our decision prohibits the imposition of some special condition on Hamilton‘s employment prospects. But instructing the probation officer to approve employment opportunities that pose minimal
B.
We turn next to Hamilton‘s challenge to the Internet condition. The eleventh special condition prohibits defendant from “access[ing] the Internet except for reasons approved in advance by the probation officer.” J.A. 104. He “argues that this special condition is impermissibly overly broad” because his supervised release “will last his entire lifetime.” Appellant Brief at 11. We reject this challenge.
Around the country, courts have confronted Internet restrictions similar to this one and some have found them to be too stringent. See, e.g., United States v. Perazza-Mercado, 553 F.3d 65, 73–74 (1st Cir. 2009) (vacating a categorical residential Internet ban); United States v. Voelker, 489 F.3d 139, 144 (3d Cir. 2007) (vacating total computer and Internet ban); United States v. Holm, 326 F.3d 872, 877–78 (7th Cir. 2003) (vacating ban on possession “or use of computers with Internet capability“). This court too has confronted the issue and found that condition to be unwarranted. See United States v. Ellis, --- F.3d ----, 2021 WL 68064 (4th Cir. Jan. 8, 2021). As both Ellis and our sister circuits have recognized, the Internet is crucial in findings jobs, paying bills, and navigating life in this digital age. See, e.g., United States v. LaCoste, 821 F.3d 1187, 1191 (9th Cir. 2016) (“Use of the Internet is vital for a wide range of routine activities in today‘s world . . . .“). We are conscious of the fact that this kind of condition is a very significant impediment on a person, and we by no means think that it is appropriate in every case. See, e.g., Ellis, 2021 WL 68064, at *6 (vacating total Internet ban after finding no “evidence linking [defendant‘s] offense or criminal history to unlawful use of the internet“). However, the particular facts and circumstances of this case set it apart from those overly broad bans, and the district court justified it on those very facts.
This condition clearly meets the statutory requirements of
There are two key threads running through the cases vacating a total Internet ban, which distinguish Hamilton‘s situation from those cases. First, in many cases, there is simply “no evidence of online criminality at all.” Ellis, 2021 WL 68064, at *6 n.8; see also, e.g., Perazza-Mercado, 553 F.3d at 69 (vacating the ban “where the defendant ha[d] no history of impermissible internet use“); United States v. Eaglin, 913 F.3d 88, 97 (2d Cir. 2019) (finding that the Internet had nothing to do with the defendant‘s “offense of failing to register as a
For cases in which there is Internet criminality, the second thread distinguishes between “non-contact child pornography activity, or similar conduct, on the internet“—in which a total ban sweeps too broadly, Ellis, 2021 WL 68064, at *8—and cases in which there is contact with a minor, such as this one. Compare Holm, 326 F.3d at 878 (vacating total Internet ban after child pornography conviction because there was not “at least some evidence of the defendant‘s own outbound use of the Internet to initiate and facilitate victimization of children“); United States v. Sofsky, 287 F.3d 122, 126–27 (2d Cir. 2002) (vacating total Internet ban where defendant had received child pornography over the Internet); United States v. Wiedower, 634 F.3d 490, 495 (8th Cir. 2011) (vacating total Internet ban where defendant had sought out and received child pornography over the Internet); with United States v. Paul, 274 F.3d 155, 168 (5th Cir. 2001) (upholding total Internet ban where defendant not only possessed child pornography, but also advised others “how to ‘scout’ single, dysfunctional parents and gain access to their children“); United States v. Crandon, 173 F.3d 122, 125, 127–28 (3d Cir. 1999) (upholding total Internet ban where defendant used Internet “to develop an illegal sexual relationship with a young girl over a period of several months” that led to statutory rape of the victim, id. at 127). Again, there is no dispute that Hamilton had sexual contact with an underaged girl, which led not only to the creation of some of the pornographic material underlying his charge, but eventually to his repeated raping and kidnapping his victim. Without defendant‘s access to the Internet, none of this tragic sequence would have transpired.
The First Circuit has articulated three factors with which to analyze broad restrictions on Internet access: “(1) the defendant used the internet in the underlying offense; (2) the defendant had a history of improperly using the internet to engage in illegal conduct; or (3) particular and identifiable characteristics of the defendant suggested that such a restriction was warranted.” Perazza-Mercado, 553 F.3d at 70. All three factors suggest the Internet restriction was justified in this case. There is no question that defendant used the Internet to commit this offense. As the government discussed at sentencing, Hamilton also has “a history of enticing minors to send him sexually explicit pictures” and “a history of violence towards girls.” J.A. 79. Finally, defendant has the “particular and identifiable characteristic[]” of defying restrictions placed upon him. In this very case, Hamilton used social media to have one of A.C.‘s friends send her a message on his behalf in defiance of a protective order that prohibited his contact with her of any kind. J.A. 82. The defendant‘s history of willful disobedience of court orders suggests that a more narrowly tailored ban is not sufficient to meet the statutory goal of “protect[ing] the public from further crimes of the defendant.”
Hamilton protests that the Internet restriction is for life, and we note that the statutory scheme is not without some flexibility.
We thus reject Hamilton‘s challenge to the Internet restriction.
C.
Finally, we consider the restriction on defendant‘s movement. The twelfth special condition of supervision prohibits Hamilton from “go[ing] to, or remain[ing] at, any place where [he] know[s] children under the age of 18 are likely to be, including parks, schools, playgrounds, ball fields, childcare facilities, movies, and arcades.” J.A. 104. Defendant argues that this condition is “overly broad and impermissibly vague.” Appellant Brief at 13. We disagree.
The district court rejected Hamilton‘s objection to this restriction because it was “absolutely necessary to protect the public against this defendant.” J.A. 57–58. Chief Judge Groh explained that the list of places, the probation officer, and common sense could provide guidance as to whether a given location was somewhere defendant was allowed to be. See J.A. 58.
Given the statutory factors and defendant‘s conduct, this condition is not overbroad. It is not a restriction “greater than necessary . . . to protect the public from further crimes of the defendant” given “the nature and circumstances of the offense and the history and characteristics of the defendant.”
As our sister circuits have found, this kind of restriction is also not too vague. See, e.g., United States v. MacMillen, 544 F.3d 71, 75–76 (2d Cir. 2008); United States v. Crume, 422 F.3d 728, 733–34 (8th Cir. 2005); United States v. Taylor, 338 F.3d 1280, 1286 (11th Cir. 2003); Paul, 274 F.3d at 165–67. “A condition of supervised release is unconstitutionally vague if it doesn‘t give a probationer ‘fair notice of the conduct that it punishes’ or is ‘so standardless that it invites arbitrary enforcement.‘” Van Donk, 961 F.3d at 323-24 (quoting Johnson v. United States, 135 S. Ct. 2551, 2556 (2015)). As the Fifth Circuit noted in Paul, “courts must inevitably use categorical terms to frame the contours of supervised release conditions” and those “terms can provide adequate notice of prohibited conduct when there is a commonsense understanding of what activities the categories encompass.” Paul, 274 F.3d at 167. The movement restriction here provides examples of prohibited places, and defendant can use common sense and consult his probation officer if there is any doubt as to a particular location. See Van Donk, 961 F.3d at 324 (“Vagueness issues are mitigated where the regulated party has ‘the ability to clarify the meaning of the regulation by [his] own inquiry.‘” (quoting Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498 (1982))). And there is no concern of inadvertent violation because the term covers only places he “know[s]” children “are likely to be.” See MacMillen, 544 F.3d at 76. The knowledge requirement alleviates the fair notice concern inherent in vagueness challenges. Van Donk, 961 F.3d at 325 (“A scienter requirement like this mitigates vagueness concerns.“); see also United States v. Burroughs, 613 F.3d 233, 246 (D.C. Cir. 2010) (noting that an associational restriction does not cover “inadvertent or chance contact,” rendering it unobjectionable).
In sum, we uphold this condition of supervised release as it is neither overly broad nor vague.
IV.
For the foregoing reasons, we affirm the judgment of the district court as to the Internet restriction and the movement restriction and vacate it as to the employment restriction and remand for further proceedings consistent with this opinion.
AFFIRMED IN PART AND VACATED AND REMANDED IN PART