Appellate Case: 23-3055 Document: 010111023377 Date Filed: 03/28/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 28, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 23-3055 (D.C. No. 6:14-CR-10059-JWB-1) WADE H. DEWEY, (D. Kan.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before BACHARACH, BALDOCK, and MORITZ, Circuit Judges. _________________________________
Wade H. Dewey appeals the district court’s revocation of his term of
supervised release. He contends the district court erred by relying on his attempts to
violate a special condition of his supervised release, rather than on any completed
violation. The record, however, refutes Dewey’s factual premise that he only
attempted to violate a special condition of his supervised release. Consequently, we
exercise jurisdiction under 28 U.S.C. § 1291 and affirm the district court’s judgment.
* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 23-3055 Document: 010111023377 Date Filed: 03/28/2024 Page: 2
I
Dewey was sentenced to 20 years in prison, followed by 10 years of
supervised release, for possessing child pornography. See 18 U.S.C. § 2252(a)(4)(B).
In November 2022, he began serving his term of supervised release, during which he
was prohibited from “accessing certain types of web sites to include: social
networking, chat rooms, and those depicting sexually explicit conduct or
pornographic material.” R., Vol. I at 60 (Special Condition 5).1
In March 2023, the government moved to revoke Dewey’s supervised release,
alleging in an Amended Violation Report that he violated Special Condition 5 by
both accessing and attempting to access pornographic websites and sexually explicit
material. First, the government alleged that “he attempted to access multiple
pornographic web sites and searched for sexually explicit material,” which it
discovered during routine reviews of his internet activity on January 26 and
1 The full text of Special Condition 5 provides:
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).
R., Vol. I at 60. 2 Appellate Case: 23-3055 Document: 010111023377 Date Filed: 03/28/2024 Page: 3
February 1, 2023. Id., Vol. II at 54, para. 8; see id., para. 9. Second, the government
alleged that he actually accessed prohibited websites, which it discovered on
February 7, 2023, when a search of his cellphone “reveal[ed] numerous web sites
visited that appeared to be pornographic or sexually explicit in nature.” Id., para. 10.
Additionally, the government alleged that Dewey admitted these allegations to his
probation officer on February 7, 2023—the same day his phone was searched: “On
02/07/23, the defendant admitted accessing and/or attempting to access web sites
containing sexually explicit conduct or pornographic material from 01/21/23 to
02/07/23.” Id. at 55, para. 13.
The district court held a hearing on the motion for revocation. At the hearing,
the district court advised Dewey that he could either “contest the claims in the
violation report” and put the government to its burden of proving the violation by a
preponderance of the evidence, or he “could admit the violations and [the court
would] decide what’s to be done about them,” id., Vol. III at 7. Dewey’s counsel
replied that he wished to “stipulate to the allegations in the violation report.” Id. at 8.
The district court asked Dewey to confirm that he wished to stipulate to the
allegations, to which Dewey replied, “Yes.” Id. The district court then recited only
the allegation that he had previously admitted the allegations to his probation officer
on February 7, 2023: “The allegation . . . is that on February the 7th, 20[2]3 you
admitted accessing or attempting to access websites containing sexually explicit
conduct or pornographic material from January 21st, 2023 to February 7th, 2023.”
Id. at 9. The district court pointedly asked Dewey, “Admit or deny?” Id. Dewey
3 Appellate Case: 23-3055 Document: 010111023377 Date Filed: 03/28/2024 Page: 4
replied, “Yes.” Id. The district court clarified, “You admit that?” Id. Again, Dewey
replied, “Yes.” Id. The district court advised Dewey he could put on evidence of the
violation, but he declined. The district court thus stated: “based on the defendant’s
admissions the Court finds that he’s violated his special condition number 5 of his
supervised release as set forth in paragraph 13 of the Amended Violation Report, and
he has waived his right to present evidence on that.” Id. at 10.
The district court then turned to sentencing. The district court heard testimony
from Dewey’s probation officer, who testified that he installed monitoring software
on Dewey’s cellphone. The probation officer explained that Dewey turned off the
monitoring software’s screen-capturing function, so there were no screen-captures of
videos he was able to see from his search terms. But the probation officer indicated
the monitoring software still recorded Dewey’s search terms, which included terms
for child pornography, familial pedophilia, and bestiality. The probation officer
testified that the monitoring software generated 90 pages of search terms, which the
district court admitted into evidence. The district court also admitted 30 pages of
handwritten notes, which the probation officer recovered from Dewey’s bedroom.
The probation officer testified that he believed these notes were pornographic
internet search terms that Dewey compiled.
The district court weighed the 18 U.S.C. § 3553(a) factors and concluded that,
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Appellate Case: 23-3055 Document: 010111023377 Date Filed: 03/28/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 28, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 23-3055 (D.C. No. 6:14-CR-10059-JWB-1) WADE H. DEWEY, (D. Kan.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before BACHARACH, BALDOCK, and MORITZ, Circuit Judges. _________________________________
Wade H. Dewey appeals the district court’s revocation of his term of
supervised release. He contends the district court erred by relying on his attempts to
violate a special condition of his supervised release, rather than on any completed
violation. The record, however, refutes Dewey’s factual premise that he only
attempted to violate a special condition of his supervised release. Consequently, we
exercise jurisdiction under 28 U.S.C. § 1291 and affirm the district court’s judgment.
* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 23-3055 Document: 010111023377 Date Filed: 03/28/2024 Page: 2
I
Dewey was sentenced to 20 years in prison, followed by 10 years of
supervised release, for possessing child pornography. See 18 U.S.C. § 2252(a)(4)(B).
In November 2022, he began serving his term of supervised release, during which he
was prohibited from “accessing certain types of web sites to include: social
networking, chat rooms, and those depicting sexually explicit conduct or
pornographic material.” R., Vol. I at 60 (Special Condition 5).1
In March 2023, the government moved to revoke Dewey’s supervised release,
alleging in an Amended Violation Report that he violated Special Condition 5 by
both accessing and attempting to access pornographic websites and sexually explicit
material. First, the government alleged that “he attempted to access multiple
pornographic web sites and searched for sexually explicit material,” which it
discovered during routine reviews of his internet activity on January 26 and
1 The full text of Special Condition 5 provides:
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).
R., Vol. I at 60. 2 Appellate Case: 23-3055 Document: 010111023377 Date Filed: 03/28/2024 Page: 3
February 1, 2023. Id., Vol. II at 54, para. 8; see id., para. 9. Second, the government
alleged that he actually accessed prohibited websites, which it discovered on
February 7, 2023, when a search of his cellphone “reveal[ed] numerous web sites
visited that appeared to be pornographic or sexually explicit in nature.” Id., para. 10.
Additionally, the government alleged that Dewey admitted these allegations to his
probation officer on February 7, 2023—the same day his phone was searched: “On
02/07/23, the defendant admitted accessing and/or attempting to access web sites
containing sexually explicit conduct or pornographic material from 01/21/23 to
02/07/23.” Id. at 55, para. 13.
The district court held a hearing on the motion for revocation. At the hearing,
the district court advised Dewey that he could either “contest the claims in the
violation report” and put the government to its burden of proving the violation by a
preponderance of the evidence, or he “could admit the violations and [the court
would] decide what’s to be done about them,” id., Vol. III at 7. Dewey’s counsel
replied that he wished to “stipulate to the allegations in the violation report.” Id. at 8.
The district court asked Dewey to confirm that he wished to stipulate to the
allegations, to which Dewey replied, “Yes.” Id. The district court then recited only
the allegation that he had previously admitted the allegations to his probation officer
on February 7, 2023: “The allegation . . . is that on February the 7th, 20[2]3 you
admitted accessing or attempting to access websites containing sexually explicit
conduct or pornographic material from January 21st, 2023 to February 7th, 2023.”
Id. at 9. The district court pointedly asked Dewey, “Admit or deny?” Id. Dewey
3 Appellate Case: 23-3055 Document: 010111023377 Date Filed: 03/28/2024 Page: 4
replied, “Yes.” Id. The district court clarified, “You admit that?” Id. Again, Dewey
replied, “Yes.” Id. The district court advised Dewey he could put on evidence of the
violation, but he declined. The district court thus stated: “based on the defendant’s
admissions the Court finds that he’s violated his special condition number 5 of his
supervised release as set forth in paragraph 13 of the Amended Violation Report, and
he has waived his right to present evidence on that.” Id. at 10.
The district court then turned to sentencing. The district court heard testimony
from Dewey’s probation officer, who testified that he installed monitoring software
on Dewey’s cellphone. The probation officer explained that Dewey turned off the
monitoring software’s screen-capturing function, so there were no screen-captures of
videos he was able to see from his search terms. But the probation officer indicated
the monitoring software still recorded Dewey’s search terms, which included terms
for child pornography, familial pedophilia, and bestiality. The probation officer
testified that the monitoring software generated 90 pages of search terms, which the
district court admitted into evidence. The district court also admitted 30 pages of
handwritten notes, which the probation officer recovered from Dewey’s bedroom.
The probation officer testified that he believed these notes were pornographic
internet search terms that Dewey compiled.
The district court weighed the 18 U.S.C. § 3553(a) factors and concluded that,
“[b]ased on the [amended] violation report, the admissions, the evidence . . . , [and]
the previously stated findings, . . . Dewey has violated the conditions of supervised
release . . . and that . . . term of supervised release is revoked.” R., Vol. III at 67.
4 Appellate Case: 23-3055 Document: 010111023377 Date Filed: 03/28/2024 Page: 5
The court sentenced him to two years in prison, followed by ten years of supervised
release.
II
On appeal, Dewey contends that Special Condition 5 prohibited him from
“accessing certain” websites, but it did not prohibit him “from attempting to access
certain websites.” Aplt. Br. at 9 (internal quotation marks omitted). He says that
because he “admitted accessing or attempting to access” prohibited websites, his
admission is insufficient to support the district court’s revocation of his supervised
release. Id. (internal quotation marks omitted).
“The district court must find by a preponderance of the evidence that the
defendant violated a condition of his supervised release.” United States v. Disney,
253 F.3d 1211, 1213 (10th Cir. 2001) (internal quotation marks omitted). We
generally review “a district court’s decision to revoke supervised release for abuse of
discretion,” but we review underlying legal questions de novo. United States v.
Shakespeare, 32 F.4th 1228, 1232 (10th Cir.), cert. denied, 143 S. Ct. 463 (2022)
(internal quotation marks omitted). Here, however, Dewey failed to raise his
argument in the district court, so we review only for plain error. Id. “To show plain
error, [Dewey] must demonstrate (1) an error (2) that is clear or obvious, rather than
subject to reasonable dispute, (3) affected his substantial rights, and (4) seriously
affects the fairness, integrity or public reputation of judicial proceedings.” Id.
(brackets and internal quotation marks omitted).
5 Appellate Case: 23-3055 Document: 010111023377 Date Filed: 03/28/2024 Page: 6
Dewey’s argument falters on the first element of plain error review. He says
he did not admit to accessing prohibited websites, but the Amended Violation Report
alleged that a search of his cellphone revealed numerous websites “visited” that
appeared to be pornographic or sexually explicit in nature. R., Vol. II at 54, para. 10
(emphasis added). This allegation does not suggest a mere attempt; it expressly
alleges Dewey actually “visited” prohibited websites. Id. And Dewey stipulated to
this allegation at the revocation hearing when the district court asked if he wished to
“contest the claims in the violation report” or “admit the violations.” Id., Vol. III at
7. Dewey and his counsel both indicated he wished to “stipulate to the allegations in
the violation report.” Id. at 8. Again, those allegations were not only that he
attempted to access prohibited websites, but also that he actually “visited” prohibited
websites. Id., Vol. II at 54, para. 10.
Dewey ignores his stipulation and focuses on the allegation that he previously
“admitted accessing and/or attempting to access” prohibited websites on February 7,
2023. Id. at 55, para. 13. Dewey cites the district court recitation of that allegation
at the revocation hearing, when the district court explained the Amended Violation
Report alleged that on February 7, 2023, when Dewey’s probation officer searched
his cellphone, Dewey “‘admitted accessing or attempting to access’” prohibited
websites. Aplt. Br. at 6, 9 (emphasis omitted) (quoting R., Vol. III at 9). Dewey
admitted that allegation to the district court too, but he had stipulated to all of the
factual allegations, including that he “visited” prohibited websites. R., Vol. II at 54,
6 Appellate Case: 23-3055 Document: 010111023377 Date Filed: 03/28/2024 Page: 7
para. 10; see id., Vol. III at 8. Thus, there is no merit to his argument that he only
admitted attempting to access prohibited websites.
Further, even if there were a latent ambiguity in the record suggesting a
potential error, Dewey could not surmount the second element of plain error review.
Establishing an alleged error was plain requires that Dewey demonstrate it was clear
or obvious. See United States v. Finnesy, 953 F.3d 675, 694 (10th Cir. 2020)
(concluding a defendant could not establish that an alleged error was plain, in part
because it was not “clear or obvious” from the record). That means he must show it
was clear or obvious in the record that he admitted only to attempting to access
prohibited websites. But as discussed, he “admitted accessing and/or attempting to
access” prohibited websites, R., Vol. II at 55, para. 13; see id., Vol. III at 9, after
explicitly declining to put the government to its burden of proving the violations and
stating he wished to stipulate to the allegations of the violation report, which
included the allegation that he actually visited websites. The record thus does not
clearly or obviously demonstrate he only admitted attempting to access prohibited
websites. Hence, Dewey cannot show any error in relying on his admissions to find
he violated Special Condition 5 and revoke his term of supervised release was plain.
III
The district court’s judgment is affirmed.
Entered for the Court
Bobby R. Baldock Circuit Judge