Appeal from the United States District Court for the District of Kansas. (D.C. No. 2:07-CR-20046-CM-1).
Tom Bartee, Assistant Federal Public Defender (Melody Brannon Evans, Federal Public Defender, with him on the briefs), Office of the Federal Public Defender, Kansas City, Kansas, for Defendant-Appellant.
James A. Brown, Assistant United States Attorney, Office of the United States Attorney, Topeka, Kansas (Barry R. Grissom, United States Attorney, and Carrie N. Capwell, Assistant United States Attorney, Office of the United States Attorney, Kansas City, Kansas, with him on the brief), for Plaintiff-Appellee.
Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
LUCERO, Circuit Judge.
We must decide the lawfulness of a condition of supervised release that imposes " restrictions and/or prohibitions related to: computer and Internet use." We conclude that this language, standing alone, would impermissibly impose a greater deprivation of liberty than reasonably necessary because it suggests the Probation Office may completely ban a means of communication that has become a necessary component of modern life. No extraordinary circumstances justify such a blanket ban in this case. This conflicts with our holding in United States v. White, 244 F.3d 1199, 1206 (10th Cir. 2001) (" White I" ), and since White I was decided in 2001, Internet use has become even more central to participation in the civic and economic life of our society. However, the district court limited the condition at issue in an oral pronouncement, clarifying that it was restricting, rather than prohibiting, defendant Ronald Ullmann's use of the Internet and Internet-capable devices. Because this pronouncement saves the otherwise deficient condition, we exercise jurisdiction under 28 U.S.C. § 1291 and affirm.
Ullmann pled guilty to making a false statement in violation of 18 U.S.C. § 1001. The charge arose from sexually explicit written conversations between Ullmann and an undercover FBI agent posing online as a thirteen-year-old minor. Ullmann was sentenced to 60 months in prison and three years of supervised release. The district court imposed twelve conditions of supervised release which restricted Internet use.
On April 1, 2014, Ullmann was released from prison and became subject to the special conditions. Shortly thereafter, the U.S. Probation Office filed a motion to modify the conditions of his supervised
release, claiming technological advances necessitated the modifications. The modifications replaced the twelve conditions restricting Internet use with a single condition reading:
As directed by the U.S. Probation Officer, the defendant shall cooperate with and abide by the policies of the United States Probation Office's Computer and Internet Monitoring Program which includes restrictions and/or prohibitions related to: computer and Internet usage, possession and use of electronic, cellular, gaming, and Internet appliance devices; possession and use of computer hardware and software, encryption hardware or software, and accessing certain types of web sites to include: social networking, chat rooms, and those depicting sexually explicit conduct or pornographic material. The defendant will also be subject to computer monitoring, and will provide the United States Probation Office with a complete inventory of all electronic and Internet capable devices, user account information as well as password(s).
We are told that the U.S. Probation Office for the District of Kansas intends to impose this condition, a part of its new Computer and Internet Monitoring Program (" CIMP" ), " as the standard sex offender supervision condition." Although the language of the modified condition states that it authorizes " restrictions and/or prohibitions" on the use of the Internet and Internet-capable devices, the Probation Office's manual acknowledges that " Tenth Circuit case law does not allow for an absolute restriction from computer access, except possibly in the most extreme case. . . . Offenders are permitted to use a ...