UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ROBERT ANDREW FABER, Defendant-Appellant.
No. 19-1575
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
February 19, 2020
20a0050p.06
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b)
Appeal from the United States District Court for the Western District of Michigan at Marquette. No. 2:05-cr-00053-1—Janet T. Neff, District Judge.
Decided and Filed: February 19, 2020
Before: SUHRHEINRICH, COOK, and READLER, Circuit Judges.
COUNSEL
ON BRIEF: Tonya R. Long, UNITED STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for Appellee. Robert Andrew Farber, Kalamazoo, Michigan, pro se.
COOK, Circuit Judge. The district court sentenced Robert Faber on child pornography charges to a term in prison followed by supervised release. As a condition of supervised release, the district court ordered Faber to avoid contacting Tylyn Gieszer (Faber’s spouse according to their neo-pagan religion, Wicca), who interfered with a probation officer’s earlier supervision of Faber. Faber later moved under
I.
In 2010, Faber pled guilty to receiving images of minors engaging in sexually explicit conduct. The district court sentenced him to prison followed by supervised release. Faber did not appeal. Several years later, Faber completed his prison term and transitioned to supervised release. Faber’s conditions of release barred him from possessing any sexually explicit images and from possessing or using any digital devices. Yet when Faber reported to a halfway house, staff discovered that he had numerous explicit images.
Faber eventually moved into an apartment with Gieszer. Probation officers visited their apartment and discovered that Faber had committed more violations of his supervised release: he had a laptop, flash drive, and SD card without permission, and the laptop contained sexually explicit material. During the visit, Gieszer lied to a probation officer, denying that either he or Faber had any digital devices in the apartment. Gieszer also tried (unsuccessfully) to hide the devices. The district court revoked Faber’s supervised release and sentenced him to another term in prison followed by supervised release. As a condition of that second term of supervised release, Faber “must not have contact or association with Tylyn Gieszer, [except] as directed by the probation officer.” Faber challenged the condition on appeal, and we affirmed. United States v. Faber, 718 F. App’x 349, 352 (6th Cir. 2017).
While that appeal remained pending, Faber filed a civil action under
In November 2018, the district court again revoked Faber’s supervised release because he communicated with Gieszer by email. The district court sentenced him to imprisonment with supervised release to follow. The court continued prohibiting Faber from contacting Gieszer. This time Faber did not appeal, but he later moved to eliminate the no-contact order under
II.
As a threshold matter, we must first consider the district court’s jurisdiction. See, e.g., Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101–02 (1998). The government argues that the district court lacked jurisdiction to consider Faber’s religious-freedom challenge to his supervised release condition.
Under
Of course, other legal mechanisms allow defendants to challenge the legality of their sentences (e.g., direct appeal,
Among our sister circuits that have addressed this issue, virtually all agree. See United States v. Lussier, 104 F.3d 32, 34 (2d Cir. 1997); United States v. Hatten, 167 F.3d 884, 886 (5th Cir. 1999); Gross, 307 F.3d at 1044; United States v. McClamma, 676 F. App’x 944, 947–48 (11th Cir. 2017); see also 3 Wright & Miller, Federal Practice and Procedure § 563 (4th ed.). The Third Circuit ruled similarly, though it recognizes an exception for as-applied constitutional challenges. See United States v. Roberts, 229 F. App’x 172, 178 (3d Cir. 2007).
The Seventh Circuit alone takes a different view. See United States v. Neal, 810 F.3d 512, 518 (7th Cir. 2016). That court reasoned that only an “explicit statutory directive” would suffice to preclude a court’s consideration of a condition’s legality. Id. We must respectfully disagree. Section 3583(e) enumerates the factors that a district court may consider; we may not judicially augment that list. That’s especially true here, given that Congress enacted
Faber took advantage of several opportunities to challenge the legality of the no-contact order and bypassed others. This statute,
III.
Faber also argues that the district court showed improper prejudice against him because of his prior conviction, but he fails to make any specific allegations to support that contention. See Liteky v. United States, 510 U.S. 540, 555 (1994). Faber raises several other matters unrelated to the district court order that he appeals, including a request that we vacate an earlier supervised release violation. Because Faber did not raise those issues in the district court, we will not review them. See Girl Scouts of Middle Tenn., Inc. v. Girl Scouts of the U.S.A., 770 F.3d 414, 427 (6th Cir. 2014).
We vacate the aspect of the district court’s order denying Faber’s motion to eliminate the no-contact order and remand with instructions to enter an order dismissing that motion for lack of jurisdiction.