United States v. Changa Bush

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 3, 2021
• Docket: 20-13152
• Status: Unpublished

Opinion

USCA11 Case: 20-11304 Date Filed: 03/03/2021 Page: 1 of 9

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-11304 ; 20-13152 Non-Argument Calendar ________________________

D.C. Docket No. 3:19-cr-00138-BJD-PDB-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CHANGA BUSH,

Defendant-Appellant.

________________________

Appeals from the United States District Court for the Middle District of Florida ________________________

(March 3, 2021)

Before WILSON, JILL PRYOR, and LUCK, Circuit Judges.

PER CURIAM: USCA11 Case: 20-11304 Date Filed: 03/03/2021 Page: 2 of 9

Changa Bush appeals a special condition of his supervised release

prohibiting him from possessing or using a computer or other electronic device

capable of connecting to the internet, which the district court reimposed following

the revocation of his supervised release. On appeal, Bush argues that the district

court failed to consider the 18 U.S.C. § 3553(a) sentencing factors when it imposed

the condition. He also argues that the condition improperly delegates power to the

probation office and constitutes an employment ban under the sentencing

guidelines.1 After reviewing the record and the briefs, we affirm.

I

In 2019, Bush pled guilty to one count of knowingly producing, trafficking

in, having control and custody of, or possessing device-making equipment with the

intent to defraud, in violation of 18 U.S.C. § 1029(a)(4). According to the

presentence investigation report (PSI), when Bush was arrested and searched, law

enforcement discovered two counterfeit driver’s licenses, multiple credit cards

with different names, two laptops, a magnetic stripe card writer and reader, a long-

range wireless adapter, images of three social security cards with different names,

and numerous cell phones and USB drives. The PSI stated that, during an

1 Although Bush previously objected to his criminal history category and raised Constitutional claims arising out of the computer restriction condition, he has since abandoned them by not addressing them on appeal, and therefore, it is unnecessary for us to consider them. See United States v. Wright, 607 F.3d 708, 713 (11th Cir. 2010). 2 USCA11 Case: 20-11304 Date Filed: 03/03/2021 Page: 3 of 9

interview, Bush said he purchased fraudulent credit cards and other information

from the internet. The PSI also stated that Bush’s last employment was as an

electrician between 1998 and 2005. Finally, the PSI noted that the nature of the

offense may warrant imposing a condition restricting Bush’s computer and internet

access.

At sentencing, Bush argued that the computer restriction condition would

take away his ability to find a job, attend school, and lead a normal life. The court

sentenced Bush to 15 months’ imprisonment, followed by three years of supervised

release. The court imposed the computer restriction as a special condition of

Bush’s supervised release, prohibiting him from possessing or using a computer, or

any other electronic device, capable of connecting to the internet without prior

approval from his probation officer. It stated that the probation officer would be

authorized to expand the approval or deny it. Bush objected to the sentence and

the manner in which the court imposed it. Bush then appealed.

In May 2020, Bush was released from imprisonment and commenced his

supervised release. However, he did not report to the probation office in

Jacksonville, Florida within 72 hours of his release. Accordingly, an arrest warrant

was issued for him because he violated his supervised release. On May 27, 2020,

Bush was arrested in South Carolina. At the time of his arrest, Bush had six cell

3 USCA11 Case: 20-11304 Date Filed: 03/03/2021 Page: 4 of 9

phones, three driver’s licenses with his picture but different identifying

information, and three credit cards that did not belong to him.

At his final supervised release revocation hearing, Bush stated that he was in

the process of appealing his original sentence and that he maintained his

“objections to the sentence and the manner in which it was imposed.” He specified

that one issue had to do with the computer restriction, “which was a very strict

computer restriction.” The district court revoked Bush’s supervised release and

sentenced him to nine months’ imprisonment followed by two years of supervised

release. Further, the court reinstated the original computer restriction condition for

the two-year supervised release term. Bush objected to the substantive and

procedural reasonableness of the sentence and raised a general objection to the

computer restriction. He then filed a notice of appeal. We consolidated the

appeals of Bush’s original sentence and his sentence following revocation of

supervised release.

II

We review the imposition of a special condition of supervised release for an

abuse of discretion. United States v. Carpenter, 803 F.3d 1224, 1237 (11th Cir.

2015). However, when a defendant fails to clearly state the grounds for his

objection, we review only for plain error. Id. “Specifically, a defendant must

articulate the specific nature of his objection to a condition of supervised release so

4 USCA11 Case: 20-11304 Date Filed: 03/03/2021 Page: 5 of 9

that the district court may reasonably have an opportunity to consider it.” Id. The

defendant must do so in “a manner sufficient to appraise the trial court and the

opposing party of the particular grounds upon which appellate relief will later be

sought.” Id. at 1237–38 (internal quotation mark omitted).

Under plain error review, a defendant must demonstrate that there is (1) an

error (2) that is plain and (3) affects his substantial rights. United States v. Turner,

474 F.3d 1265, 1276 (11th Cir. 2007). If all three conditions are satisfied, we may

exercise our discretion to correct the error if it seriously affects the fairness, integrity,

or public reputation of judicial proceedings. Id.

To establish error, a defendant must show that the district court abused its

discretion in imposing the challenged special condition of supervised release.

Carpenter, 803 F.3d at 1238. When imposing special conditions of supervised

release, the district court should consider whether each condition: “(1) is

reasonably related to the § 3553(a) factors; (2) involves no greater deprivation of

liberty than is reasonably necessary to serve the purposes of punishment specified

in § 3553(a)(2); and (3) is consistent with any pertinent policy statements issued by

the Sentencing Commission.” Id. (internal quotation marks and brackets omitted).

Further, an error is plain when it is obvious and clear under current law. Id.

Specifically, when “neither the Supreme Court nor this Court has ever resolved an

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issue, and other circuits are split on it, there can be no plain error in regard to that

issue.” Id. at 1238–39.

“To determine if a court improperly delegated the judicial authority of

sentencing, we have drawn a distinction between the delegation to a probation

officer of a ministerial act or support service and the ultimate responsibility of

imposing the sentence.” United States v. Nash, 438 F.3d 1302, 1304–05 (11th Cir.

2006) (per curiam) (internal quotation marks omitted). If the district court makes

the determination that a defendant must abide by a condition, “it is permissible to

delegate to the probation officer the details of where and when the condition will

be satisfied.” Id. at 1305.

Moreover, a district court “may impose a condition of . . . supervised release

prohibiting the defendant from engaging in a specified occupation, business, or

profession, or limiting the terms on which [he] may do so,” if it first determines

that certain criteria are met. See U.S.S.G. § 5F1.5(a). For example, it must

determine that “a reasonably direct relationship existed between the defendant’s

occupation, business, or profession and the conduct relevant to the offense of

conviction.” Id. § 5F1.5(a)(1).

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III

As an initial matter, we review Bush’s claims for plain error because he

failed to raise these specific challenges to the computer restriction condition in the

district court. See Carpenter, 803 F.3d at 1238.2

Bush’s challenges to the computer restriction condition each fail. First, the

district court did not improperly delegate authority to the probation office. Similar

to the special condition in Nash, the district court here imposed a clear mandate,

“subject to the administrative supervision of a probation officer,” as it required

Bush to seek prior approval from his probation officer before accessing a computer

or the internet. See Nash, 438 F.3d at 1306 (upholding a condition that “[t]he

defendant shall secure approval from the probation office before opening any

checking, credit, or debit account”). Therefore, Bush’s probation officer is left

with the ministerial function of how, when, and where Bush can access a computer

and the internet. See id. Moreover, even if the district court did err, Bush cannot

show that the error was plain because neither the Supreme Court nor this court has

resolved whether a special condition requiring a probation officer’s approval to

2 Even though Bush’s objection “to the substantive and procedural reasonableness” of his sentence preserved any claims regarding the reasonableness of his sentence, it does not appear to preserve his specific challenges to the computer restriction condition. See Carpenter, 803 F.3d at 1238. 7 USCA11 Case: 20-11304 Date Filed: 03/03/2021 Page: 8 of 9

access a computer, or the internet, is an improper delegation of judicial authority.

See Carpenter, 803 F.3d at 1238–39.

Second, the computer restriction condition does not constitute an

employment ban under § 5F1.5(a) of the Sentencing Guidelines, as the special

condition does not prohibit Bush from engaging in a specified occupation. See

U.S.S.G. § 5F1.5(a). For example, the computer restriction does not prohibit Bush

from working as an electrician—his last reported employment. At most, it may

limit the terms on which Bush can engage in an occupation relating to computers

and the internet, since he can receive approval from the probation office to do so.

Third, the district court did not err in imposing the computer restriction condition

by failing to consider the § 3553(a) factors. The district court explicitly stated that

it had considered the § 3553(a) factors during both sentencing hearings. Further,

the district court discussed the inconveniences and hardships faced by the victims

of Bush’s crimes and explained that the special condition was necessary to deter

Bush from future criminal conduct. See 18 U.S.C. § 3553(a)(2)(B), (C).

Moreover, the restriction is reasonably related to the § 3553(a) factors, as Bush

“used the internet as a tool” in the underlying offense. See United States v. Taylor,

338 F.3d 1280, 1285 (11th Cir. 2003) (upholding a similar computer restriction in

the context of a sex offense). For example, Bush purchased fraudulent credit cards

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and other information from the internet, and he needs a computer and the internet

to use the equipment he was charged with possessing.

In addition, the computer restriction condition does not appear to be greater

than necessary to achieve the purposes of sentencing. The condition is not unduly

restrictive because Bush can still use computers with internet access if he obtains

prior permission from his probation officer. See id. In sum, the district court did

not abuse its discretion in imposing the computer restriction condition and,

therefore, Bush cannot demonstrate that an error occurred.

We conclude that the district court did not plainly err when imposing the

computer restriction condition. Accordingly, we affirm.

AFFIRMED.