17-1224-cr U.S. v. Eaglin
In the United States Court of Appeals FOR THE SECOND CIRCUIT ______________
August Term, 2017
(Submitted: March 7, 2018 Decided: January 11, 2019)
Docket No. 17‐1224‐cr ______________
UNITED STATES OF AMERICA,
Appellee,
–v.–
JARRET EAGLIN, AKA JARRET L. EAGLIN,
Defendant‐Appellant. ______________
B e f o r e :
CABRANES and CARNEY, Circuit Judges, and VILARDO, District Judge.*
______________
In 2012, defendant‐appellant Jarret Eaglin was convicted of failing to register as a sex offender, in violation of 18 U.S.C. § 2250(a). In 2017, the United States District Court for the Northern District of New York (D’Agostino, J.) found that Eaglin violated certain conditions of supervised release imposed as a consequence of the 2012 conviction. As
*Judge Lawrence J. Vilardo, of the United States District Court for the Western District of New York, sitting by designation.
punishment, it imposed a one‐year term of imprisonment to be followed by eleven years of supervised release. In this appeal, Eaglin challenges two conditions of his 2017 supervised release: a ban on accessing the Internet without prior specific permission of the court and a total ban on viewing or possessing adult pornography. On abuse of discretion review, we conclude that the record as it stands does not support the imposition of these sweeping conditions. Eaglin was twice convicted over fifteen years ago, when he was twenty‐one and twenty‐two years old, of having unlawful sexual relationships with two thirteen‐year old girls, and since then has substantially, if imperfectly, complied with the terms of his extended periods of supervised release. His crime of conviction now is failure to register as a sex offender. The District Court’s explanation for its imposition of these conditions was wanting, but in light of the record before us we conclude that imposition of both the Internet ban and the pornography ban was substantively unreasonable on this record as these conditions are not reasonably related to the relevant sentencing factors; further, they impose a greater restriction than reasonably necessary to achieve the goals of sentencing in light of Eaglin’s crime of conviction and his criminal history. Accordingly, the cause is REMANDED for resentencing consistent with this opinion. ______________
Lisa A. Peebles, Federal Public Defender, Molly Corbett, James P. Egan, Assistant Federal Public Defenders, Office of the Federal Public Defender, Albany, New York, for Defendant‐Appellant.
Richard D. Belliss, Paul D. Silver, Assistant United States Attorneys, for Grant C. Jaquith, Acting United States Attorney for the Northern District of New York, Albany, New York, for Appellee. ______________
SUSAN L. CARNEY, Circuit Judge:
This case concerns the imposition of broad bans on Internet access and on
possession of legal adult pornography as conditions of a multi‐year term of supervised
release. We conclude that the record here does not support imposition of these
sweeping prohibitions. To be sustained, a virtually categorical prohibition on a
defendant’s use of any device to access the Internet—a technology around which our
society now unmistakably turns—must be carefully explained and robustly supported
by a district court. As the Supreme Court recently reiterated, “cell phones and the
services they provide are ‘such a pervasive and insistent part of daily life’ that carrying
one is indispensable to participation in modern society.” Carpenter v. United States, 138
S. Ct. 2206, 2210 (2018) (quoting Riley v. California, 134 S. Ct. 2473, 2428 (2014)); see also
Packingham v. North Carolina, 137 S. Ct. 1730 (2017). Although Internet access through
smart phones and other devices undeniably offers the potential for wrongdoing, to
consign an individual to a life virtually without access to the Internet is to exile that
individual from society. The record here inadequately supports the District Court’s
decision to take that drastic step.
On abuse of discretion review, we conclude that both the virtual ban on Internet
access and the prohibition on viewing or possessing adult pornography are
substantively unreasonable because, given the record before us, they are not reasonably
related to the sentencing factors and impose a greater restriction than reasonably
necessary to achieve the goals of sentencing. The cause is REMANDED for
resentencing consistent with this opinion.
BACKGROUND2
Defendant‐Appellant Jarret Eaglin was convicted in 2003 and 2004 in New
Hampshire state court on four counts of felonious sexual assault. His convictions stem
from his sexual relationships with two thirteen‐year‐old girls in that state when he was
twenty‐one and twenty‐two years old. Under New Hampshire law, “felonious sexual
assault” is a statutory crime that is based on the age of the younger party alone, without
regard to the age or mens rea of the perpetrator. N.H. Rev. Stat. § 632‐A:3 (2003) (to
“[e]ngage[] in sexual penetration with a person . . . under 16 years of age” is a class B
felony); see Goodrow v. Perrin, 119 N.H. 483, 488 (1979) (no scienter requirement in § 632‐
A:3). For the convictions related to the first victim, Eaglin received a sentence of twelve
months’ incarceration and two years’ probation; for the conviction related to the second
victim, he received a deferred sentence and five years’ probation. The convictions
render Eaglin a “sex offender” under federal law, 34 U.S.C. § 20911, and obligate him to
comply with certain federal statutory registration requirements applicable to sex
offenders, 18 U.S.C. § 2250.
In the fifteen years that have passed since his first convictions, Eaglin has
struggled to comply fully with the multiple conditions of his supervised release, which
have been renewed and revised on several occasions. He also has struggled to abide by
the requirements resulting from his sex offender status. In 2005, for example, he was
remanded to custody for three breaches: failing to report a 2004 arrest following a
2 The relevant facts are largely undisputed by the parties and are drawn from the documentary record including the 2012 Presentence Investigation Report (“PSR”) prepared with regard to defendant Eaglin. We note in the text any significant differences in the parties’ accounts.
domestic dispute with his girlfriend,3 failing to complete a sex offender counseling
program, and failing to obtain permission from his probation officer before changing
his place of residence. More recently, in September 2012, Eaglin pleaded guilty in the
U.S. District Court for the District of New Hampshire to violating the federal
registration statute by failing to register as a sex offender when he moved from New
Hampshire to New York in August 2011. For that conviction, he was sentenced by
Judge Joseph A. Diclerico, Jr., to twenty‐one months’ imprisonment and fifteen years of
supervised release.
In early 2014, the job of monitoring Eaglin’s compliance with the terms of his
supervised release for his 2012 conviction was transferred to the Northern District of
New York, so that Eaglin could legally return to Glen Falls, New York, and live near his
immediate family. His compliance challenges continued, however, in New York: in May
2014, Eaglin was penalized with a two‐month home detention period for his failure to
report incidental contact with a minor and his chronic unemployment. As part of this
detention, Eaglin was instructed to stay away from his former residence, where the
incidental contact occurred. In July 2014, he was again penalized—this time, with a two‐
month period of curfew—after he failed to report that he had returned briefly without
permission to his former residence (where his sister then resided) to get a ride to his sex
offender treatment program after (as the Probation Office described it) “the bus he was
supposed to take to treatment broke down.” App. 14. And in 2015, a warrant issued for
Eaglin’s arrest after, over a period of months, he violated several conditions of release
3 As a result of that dispute, Eaglin was convicted in New Hampshire state proceedings of resisting arrest and simple assault and sentenced to six months’ imprisonment.
by failing to participate in a sex offender treatment program, failing to notify his
probation officer of a change in employment, failing to register a new address with the
state sex offender registry, viewing and possessing adult pornography, and traveling
outside the Northern District of New York to central Massachusetts without permission.
For those violations, Judge D’Agostino of the U.S. District Court for the Northern
District of New York sentenced Eaglin to sixteen months of incarceration, to be followed
by thirteen years of supervised release. On the recommendation of the government and
of the Probation Office, the District Court continued to impose conditions banning
access to sexually explicit materials and banning access to the Internet unless he
participated in a monitoring program that would be run by Probation.
Eaglin was released from prison and returned to supervised release status in
August 2016. Once again, Eaglin struggled to comply with the terms of release. In April
2017, Eaglin admitted to viewing and possessing sexually explicit images of adults, in
violation of the special conditions to which he was subject, and to using email accounts
that he had not registered with the New York state sex offender registry, as required by
law. App. 69‐70; see N.Y. Correct. Law § 168‐f(4) (requiring that a sex offender provide
the state any “internet identifiers that such offender uses,” including email accounts).
For those violations, the District Court, now familiar with Eaglin from his repeated
visits on conditions violations of various sorts, sentenced him anew to twelve months of
imprisonment and eleven years of supervised release.
In connection with those April 2017 proceedings, Eaglin’s counsel requested by
letter that the District Court not reimpose two specific conditions of release to which
Eaglin earlier had been subject: the restrictions on his possession and use of Internet‐
capable devices, App. 51, and the condition that he “not view, possess, own, subscribe
to or purchase any material, including pictures, videotapes, films, magazines, books,
telephone services, electronic media, computer programs, or computer service[s] that
depict sexually explicit conduct,” id. at 52. He argued that neither of these conditions
was reasonably related to Eaglin’s 2012 offense of conviction (his failure to register) and
that they imposed a “greater deprivation of liberty than reasonably necessary” to serve
the purposes of sentencing contrary to the principles underlying 18 U.S.C. § 3553
(“Imposition of sentence”). Id. at 54‐58.
For its part, the government took a diametrically opposed view, urging the court
both to reimpose the relevant conditions and to expand their scope: in particular, that
the Internet‐capable device restriction “be modified such that the defendant also be
prohibited from accessing the Internet” entirely. App. 59. The government justified its
request by pointing to a 2015 incident in which, without the permission of his probation
officer, Eaglin traveled out‐of‐state to Massachusetts to meet an adult woman whom he
met through an online dating website.4 This travel, it explained, was an example of
Eaglin’s continued efforts to “find sexual partners and to access pornography,” which it
identified as “risk factors.”5 App. 60. The government also cited Eaglin’s efforts to “hide
[his] phone from Probation because he knew he would use the phone to try to find
4 That woman later told police that Eaglin had raped her, but shortly thereafter recanted her statement. All related charges against Eaglin were ultimately dismissed.
5 In its 2017 presentencing letter, the government advised that it viewed Eaglin’s searches for sexual partners and for pornography not as “otherwise healthy sexual behavior,” but as activities that “may lead to high‐risk behavior.” App. 60.
sexual partners and view pornography.” Id. The government presented these conditions
to the district court as “necessary in this case to protect the public, to deter the
defendant from committing future violations, and to promote the rehabilitation of the
defendant.” Id.
At sentencing, the District Court addressed the proposed pornography and
Internet bans together, expressing the view that each was “very, very necessary”
because Eaglin had used “an Internet‐capable device to look for sexual partners and to
view pornography.” App. 73. The court continued,
I think that it is very risky for you, sir, to be using Internet devices and I think that based upon your previous conviction, your underlying conviction, that it is very advisable that you stay off of the Internet, that you are prevented from using or viewing pornography. I’m aware it’s not child pornography at this point that is being viewed but these appear to be significant risk factors to you in terms of your conduct. Id. at 73‐74. Remarking on the Probation Office’s report that Eaglin had attempted to
hide his smartphone from his probation officer, the District Court commented without
further explanation that “when you get Internet‐capable devices, when you view
pornography, I happen to believe that the community is at risk from you.” Id. at 74. As
the government had requested, the District Court then imposed conditions barring
Eaglin from “access[ing] the Internet from any computer or Internet‐capable device in
any location unless authorized by the Court or as directed by the U.S. Probation Office
upon approval of the Court,” id. at 77‐78, and banning him entirely from viewing or
possessing material “that depict[s] sexually explicit conduct,” as more fully set forth in
the margin.6 Id. at 77.
Eaglin timely appealed.
DISCUSSION
We review the imposition of conditions of supervised release for abuse of
discretion and any related legal rulings de novo. United States v. Johnson, 446 F.3d 272,
277 (2d Cir. 2006). We review sentencing decisions for procedural and substantive
reasonableness. See United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc).
For a sentence to be procedurally reasonable, a District Court must “make an
individualized assessment when determining whether to impose a special condition of
supervised release, and . . . state on the record the reason for imposing it.” United States
v. Betts, 886 F.3d 198, 202 (2d Cir. 2018). Any explanation provided by the District Court
must be adequately supported by the record. We reverse a sentence for substantive
unreasonableness only “for those few cases that, although procedurally correct, would
nonetheless damage the administration of justice because the sentence imposed was
shockingly high, shockingly low, or otherwise unsupportable as a matter of law.”
United States v. Mi Sun Cho, 713 F.3d 716, 723 (2d Cir. 2013) (per curiam) (quoting United
States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009)). We have held as a general matter that a
6 The pornography condition provides that Eaglin “must not view, possess, own, subscribe to or purchase any material, including pictures, videotapes, films, magazines, books, telephone services, electronic media, computer programs, or computer services that depict sexually explicit conduct, as defined in 18 U.S.C. § 2256(2).” Id. It identifies no possible exceptions. See App. 77‐78 (quoting District Judge’s oral pronouncement).
district court “may impose special conditions of supervised release that are
reasonably related to certain statutory factors governing sentencing, ‘involve[] no
greater deprivation of liberty than is reasonably necessary’ to implement the statutory
purposes of sentencing, and are consistent with pertinent Sentencing Commission
policy statements.” United States v. Myers, 426 F.3d 117, 123‐24 (2d Cir. 2005) (quoting 18
U.S.C. § 3583(d)); see also 18 U.S.C. § 3563; U.S.S.G. § 5D1.3(b). The “certain statutory
factors governing sentencing” to which we referred in Myers are set out in 18 U.S.C.
§ 3553(a) and include, “the nature and circumstances of the offense and the history and
characteristics of the defendant,” 18 U.S.C. § 3553(a)(1), as well as:
the need for the sentence imposed (A) to reflect the seriousness of the offense, to promote the respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner
18 U.S.C. § 3553(a)(2). Although we generally defer to the District Court’s discretionary
assessment of the suitability of conditions of supervised release, we will “carefully
scrutinize unusual and severe conditions.” United States v. Peterson, 248 F.3d 79, 82 (2d
Cir. 2001) (per curiam) (quoting United States v. Doe, 79 F.3d 1309, 1319‐20 (2d Cir.
1996)). The conditions imposed here—prohibiting access to the Internet and to legal
adult pornography—are such unusual and severe conditions; they merit our close
examination. Eaglin argues primarily that the eleven‐year virtually categorical bans on
his access to the Internet and to legal adult pornography are overly broad and
unreasonably onerous. Both involve, he contends, a greater deprivation of liberty than
is reasonably necessary to implement the statutory purposes we have just set forth. He
argues further that the District Court did not justify either condition sufficiently, on the
record, as reasonably related to any of the relevant sentencing factors.
Upon due consideration, we agree with Eaglin that the record as it now stands
reveals an insufficient connection between each of these two conditions and the offense
of conviction. The record also fails to reveal the District Court’s basis for identifying a
connection between the conditions and the likelihood of harm. The District Court’s
general reference to the conditions as being necessary to protect the community does
not suffice, even on the background of Eaglin’s repeated infractions of the better‐
founded terms of supervised release. We must conclude, therefore, that, on this record,
these conditions are substantively unreasonable because they are not reasonably related
to the relevant sentencing factors and involve a greater deprivation of liberty than is
reasonably necessary. The cause is remanded for further consideration and resentencing
in accordance with this opinion. We set forth our reasons in greater detail below.
I. Internet ban
Where a condition of supervised release implicates a constitutional right, we
conduct a more searching review in light of the “heightened constitutional concerns”
presented in such cases. Myers, 426 F.3d at 126. The government argues that Eaglin has
no constitutional right to access the Internet. We reject that position as outdated and in
conflict with recent Supreme Court precedent. The Supreme Court forcefully identified
such a right in Packingham v. North Carolina, 137 S. Ct. 1730 (2017), and it suggested as
much in Riley v. California, 134 S. Ct. 2473, 2428 (2014), as we adverted to above.
In Packingham, the Supreme Court struck down as unconstitutional a North
Carolina criminal statute that made it a felony for sex offenders to access certain social
media websites. 137 S. Ct. at 1738. The Court reasoned that, “to foreclose access to social
media altogether is to prevent the user from engaging in the legitimate exercise of First
Amendment rights.” Id. at 1737. By enforcing such a restriction, the Court elaborated,
“North Carolina with one broad stroke bars access to what for many are the principal
sources for knowing current events, checking ads for employment, speaking and
listening in the modern public square, and otherwise exploring the vast realms of
human thought and knowledge.” Id. The Court stated that it had never “approved of a
statute as broad in its reach.” Id.
The restriction in Packingham created a permanent restriction in the form of a
criminal statute applicable to all registered sex offenders. See id. (noting the “troubling
fact” that the offending statute imposed restrictions on persons who were no longer
subject to the supervision of the criminal justice system). The restriction that Eaglin
challenges here, in contrast, was imposed as a condition of supervised release that
applies to Eaglin alone and for a limited albeit lengthy duration. Certain severe
restrictions may be unconstitutional when cast as a broadly‐applicable criminal
prohibition, but permissible when imposed on an individual as a condition of
supervised release. See Farrell v. Burke, 449 F.3d 470, 497 (2d Cir. 2006) (“[T]he First
Amendment rights of parolees are circumscribed.”). In our view, Packingham
nevertheless establishes that, in modern society, citizens have a First Amendment right
to access the Internet.
The substance of the Internet ban imposed on Eaglin is even broader in its terms,
if not in its application, than that struck down in Packingham. Whereas the Packingham
statute banned access only to certain social networking sites where minors may be
present, such as Facebook and Twitter, the condition imposed on Eaglin prohibits his
access to all websites.7 It therefore implicates the same First Amendment concerns that
were at issue in Packingham: Eaglin has a First Amendment right to be able to email,
blog, and discuss the issues of the day on the Internet while he is on supervised release.
Moreover, one of the conditions of supervised release is that he remain employed: to
search for a job in 2019, the Internet is nearly essential, as the Court in Packingham
recognized. 137 S. Ct. at 1737.
Even before Packingham was decided, we rejected total bans on Internet access in
several cases challenging similar conditions of supervised release. For example, in
Peterson, in 2001, we vacated a ban on Internet access as overly broad where the
defendant had been convicted of bank larceny but had been charged with violating
conditions of supervised release by viewing adult pornography. 248 F.3d at 82.
Although we acknowledged “a relationship” between Peterson’s Internet restriction
and his conviction for incest predating his larceny conviction, we concluded
nonetheless that “the condition [was] neither reasonably related to that conviction nor
reasonably necessary to the sentencing objectives.” Id. at 83 (emphasis in original;
internal quotation marks omitted). Critically, the record in Peterson displayed “no
7 Because the District Court adopted the condition on the government’s recommendation for a complete Internet ban and required specific permission from the court for any desired instances of internet access, we understand the condition effectively to operate as a total Internet ban.
indication that Peterson’s past incest offense had any connection to computers or to the
Internet.” Id. We thus determined that the facts of Peterson’s case did not warrant “so
broad a prohibition” on his Internet usage. Id.
Similarly, in United States v. Sofsky, in 2002, we held that a total Internet ban
inflicted a greater deprivation of liberty than was reasonably necessary in the case of a
defendant who had illegally downloaded child pornography. 287 F.3d 122, 126 (2d Cir.
2002). Like the Court in Packingham, we were concerned that such a ban “prevents use
of e‐mail . . . [and] other common‐place computer uses such as doing any research,
getting a weather forecast, or reading a newspaper online”—activities that raise no
obvious risk of criminal activity. Id. (internal quotation marks omitted).
Our sister circuits have similarly rejected absolute Internet bans even where the
defendant had used the computer for ill in his crime of conviction. See, e.g., United States
v. LaCoste, 821 F.3d 1187, 1192 (9th Cir. 2016) (rejecting Internet ban where defendant
conspired to commit securities fraud); United States v. Wiedower, 634 F.3d 490, 495 (8th
Cir. 2011) (rejecting Internet ban where defendant was convicted of possessing child
pornography); United States v. Perazza‐Mercado, 553 F.3d 65, 72‐74 (1st Cir. 2009)
(rejecting Internet ban in the home where crime of conviction involved defendant
knowingly engaging in sexual contact with a female under the age of twelve); United
States v. Freeman, 316 F.3d 386, 391‐92 (3d Cir. 2003) (rejecting Internet ban where
defendant was convicted of receiving and possessing child pornography); United States
v. Holm, 326 F.3d 872, 877 (7th Cir. 2003) (rejecting Internet ban where defendant was
convicted of possessing child pornography).
In light of our precedent, and as emphasized by Packingham’s recognition of a
First Amendment right to access certain social networking websites, the imposition of a
total Internet ban as a condition of supervised release inflicts a severe deprivation of
liberty. In only highly unusual circumstances will a total Internet ban imposed as a
condition of supervised release be substantively reasonable and not amount to a
“‘greater deprivation of liberty than is reasonably necessary’ to implement the statutory
purposes of sentencing.” Myers, 426 F.3d at 123‐24 (quoting 18 U.S.C. § 3583(d)). On the
record before us, the imposition of a total Internet ban for the eleven‐year period of
Eaglin’s supervised release is substantively unreasonable as it has not been shown to be
“reasonably related” to the statutory factors governing sentencing nor to be reasonably
necessary to effectuate the sentencing objectives.
First, the record does not demonstrate that an Internet ban is reasonably related
to “the nature and circumstances” of the crime of conviction or to Eaglin’s “history and
characteristics.” 18 U.S.C. § 3553(a)(1). So far as we can see, the Internet has nothing to
do with Eaglin’s 2012 offense of failing to register as a sex offender. Nor has Eaglin been
charged with or convicted of a sex crime involving Internet use. This is not a case in
which the crime of conviction or the violation of supervised release involved using the
Internet to prey on children or otherwise endanger the public. Cf. Johnson, 446 F.3d at
282‐83 (upholding ban where defendant previously used the Internet to convince
children to meet him and have sex). Indeed, as the District Court noted, the record
contains no evidence that Eaglin accessed child pornography online (or at all). As we
warned in Peterson, recognizing that “a computer with Internet access offers the
possibility of abusive use for illegitimate purposes” provides an insufficient justification
for an all‐out prohibition absent a close connection to the defendant’s past illegal
conduct, or strong independent grounds for linking it to a real potential for future
harm. 248 F.3d at 83 (emphasis added). Here, neither the nature and circumstances of
Eaglin’s failure to register nor his history and characteristics meaningfully support the
drastic step of imposing a complete Internet ban on Eaglin as means of protecting the
public or deterring recidivism.8
Moreover, imposing an Internet ban would arguably impair Eaglin’s ability to
receive “needed educational or vocational training, medical care, or other correctional
treatment in the most effective manner”—one of the goals of sentencing. 18 U.S.C.
§ 3553(a)(2)(D). Today, as we observed above, access to the Internet is essential to
reintegrating supervisees into everyday life, as it provides avenues for seeking
employment, banking, accessing government resources, reading about current events,
and educating oneself. See, e.g., Carpenter, 138 S. Ct. at 2210 (carrying a cell or smart
phone “is indispensable to participation in modern society”). Yet when imposing the
sweeping Internet ban challenged here, the District Court did not address on the record
8 Although the District Court did not address these concerns on the record, we observe and note our concern that the government’s sentencing memorandum adverted to “prior sexual assault convictions involving both minor and adult victims, one of which involved the knife point rape of an adult female.” App. 60. Other than Eaglin’s 2003 and 2004 convictions for non‐violent felonious sexual assault, the record on appeal reflects no convictions for sexual assault. The record does, however, reflect that Eaglin was acquitted by a jury in 2005 of charges that he had sexually assaulted a girlfriend at knifepoint. And in 2015, as mentioned above, Eaglin was arrested for rape, and the charges were dismissed when the woman recanted her initial statement and told police she had not been raped. To the extent that the government intended to invite the District Court to consider charges of which Eaglin was not convicted, we nonetheless question whether a total, outright Internet ban is sustainable in place of the conditions monitoring Internet use previously imposed.
the likely adverse impact of isolating Eaglin from these important positive uses of the
Internet or engage in any explicit balancing of these competing interests.
Finally, it is not clear from the record that an Internet ban was reasonably
necessary to effectuate any of the purposes of 18 U.S.C. § 3553(a)(2). Although the
District Court asserted that “the community is at risk from” Eaglin when he accesses the
Internet, App. at 74, we are not persuaded that the Internet ban is reasonably necessary
to “protect the public from [Eaglin’s] further crimes,” 18 U.S.C. § 3553(a)(2)(C). Both the
government and the District Court appear to have viewed a total Internet ban as a
necessary means of preventing Eaglin from viewing adult pornography (of which more
will be said below) and from identifying potential romantic or sexual partners.9 See
Appellee’s Br. 24‐25; App. 73‐74. But the earlier Internet restriction placed on Eaglin,
under which his Internet use was monitored by the Probation Office, remained to all
outward appearances a viable option. Such a restriction would adequately protect the
public from Eaglin’s potential misuse of the Internet while imposing a more reasonable
burden on Eaglin’s First Amendment interest in accessing the Internet. See United States
v. Browder, 866 F.3d 504, 512 (2d Cir. 2017) (holding that a condition of supervised
release that imposed a “narrowly tailored” computer monitoring program on a
defendant convicted of child pornography possession was not an excessive deprivation
9 To the extent that the District Court disapproved of Eaglin seeking out consensual adult sexual partners, the absence of a detailed explanation for its disapproval leaves us concerned. The “right to enter into and to maintain intimate personal relationships,” including sexual ones, is a “well‐established” liberty interest. United States v. Reeves, 591 F.3d 77, 82 (2d Cir. 2010). Unless the record contains strong evidence of a reason for concern—and we saw none here—a court imposing conditions of supervised release must tread especially lightly in this area.
of liberty). The record does not explain why such monitoring was insufficient, other
than by noting the Probation Office’s concern that, while under that restriction, Eaglin
successfully contacted an adult woman who agreed to an encounter with him. If
Eaglin’s potential contact with children is of concern, despite the record’s dearth of
evidence suggesting that Eaglin is likely to seek out children on social media or prey on
them in reality, the District Court must make a record of the basis for such concerns and
craft restrictions that address them with particularity. As the Supreme Court noted in
Packingham, such specific and narrowly tailored restrictions “must be the State’s first
resort to ward off the serious harm that sexual crimes inflict.” 137 S. Ct at 1737.
In short, the Internet ban imposed on Eaglin severely encroached on his First
Amendment rights by depriving him of the opportunity to engage with modern society.
And it did so without any clear evidence in the record that the condition was warranted
by Eaglin’s criminal history or characteristics, the need for deterrence or to protect the
public, or the court’s desire to provide necessary rehabilitative services to Eaglin. We
therefore conclude that the District Court exceeded the permissible bounds of its
discretion in imposing this substantively unreasonable condition: the untailored
Internet ban is not reasonably related to the relevant sentencing factors and involves a
greater deprivation of liberty than is reasonably necessary to serve the relevant
sentencing objectives.
II. Pornography Ban
Eaglin also challenges the condition of supervised release that prohibits him
from viewing or possessing legal adult pornography. We tolerate such conditions only
in limited circumstances: “Pornographic materials . . . receive full First
Amendment protection when in the possession of ordinary adults, but may be
regulated in the hands of parolees to a much greater extent.” Farrell, 449 F.3d at 497. To
be permissible, however, a condition prohibiting access to adult pornography must be
reasonably related to the enumerated statutory factors and must impose no greater
deprivation of liberty than reasonably necessary. See United States v. Simmons, 343 F.3d
72, 80 (2d Cir. 2003).
Applying these standards, we have routinely rejected bans on possession of
adult pornography as a condition of supervised release where the district court failed
adequately to connect the need for that condition to the defendant’s likelihood of
recidivism or to another sentencing factor. See, e.g., United States v. Brown, 653 F. App’x
50, 52 (2d Cir. 2016) (summary order); United States v. Singer, 693 F. App’x 47, 48 (2d Cir.
2017) (summary order). Such bans must be supported on the record by detailed factual
findings establishing that the proposed ban is reasonably related to the sentencing
factors set forth in 18 U.S.C. § 3553(a) and that it is reasonably necessary to accomplish
their objectives. A general reference to “the public interest” ordinarily will not suffice.
In this case, the District Court identified nothing in the record that adequately
justifies imposing an adult pornography ban. This District Court said only that “when
you view pornography, I happen to believe that the community is at risk from you.”
App. 74. This general statement does not explain why possessing or viewing adult
pornography might in the court’s view prompt Eaglin to commit a new offense or cause
him to pose a risk to the public. Although the District Court repeatedly described
Eaglin’s viewing of pornography as “risky,” it never explained why such behavior
represented a particular risk. See App. 73‐74. Upon review of the record, we have
identified no evidence that would support such a finding. Nor does the record
otherwise demonstrate that the condition was reasonably related to Eaglin’s criminal
history or the other sentencing factors of factors set forth in 18 U.S.C. § 3553(a).
In requesting the imposition of such a condition, the government cited our recent
nonprecedential decision in United States v. Springer, 684 F. App’x 37 (2d Cir. 2017)
(summary order), where we upheld an adult pornography ban as a condition of
supervised release. But there, the record was considerably more robust than here, and
the district court “made clear the reasons it incorporated the pornography restrictions
into Springer’s release conditions.” Id. at 40. In addition to Springer’s extensive record
of violating release conditions, the court there considered Springer’s history of sex
offenses involving both children and adults. (Springer had six such convictions, five of
them involving children and the sixth involving a teenager who was 19 years old). The
District Court also had before it an evaluation submitted by a mental health provider
explicitly “recommending that Springer be prohibited from accessing any pornographic
materials.” Id.
Some comments made by the District Court here appear to reflect a worry that
Eaglin might one day view or possess child pornography. See, e.g., App. 73‐74 (“I’m
aware it’s not child pornography at this point that is being viewed but [Internet access
and pornography] appear to be significant risk factors to you[.]”). But, if that was the
reason for the ban, the court did little to explain on the record the source of that
consternation. The government has not directed us to record evidence suggesting that
Eaglin has a history of viewing child pornography or that he has expressed a desire to
do so such that the public needs to be protected from this potential future crime. The
connection to children that Eaglin’s criminal record evinces is found only in the
statutory convictions for his sexual relationships with two teenage girls fifteen years
ago when he was twenty‐one and twenty‐two years old. We do not minimize the
gravity of those statutory crimes. But the record reflects no finding as to Eaglin’s mens
rea with respect to those offenses, and neither involved child pornography. And the
record of any sexual involvement by him with children in the past fifteen years is blank,
so far as we can see.
Before imposing a special condition such as this ban on adult pornography, a
district court must make factual findings supporting its view that the condition is
designed to address a realistic danger and that the deprivation the condition creates is
no greater than reasonably necessary to serve the sentencing factors. See Myers, 426 F.3d
at 128. Here, the record does not suggest that Eaglin is likely to seek out child
pornography, so we are unable to count that risk as a legitimate basis for this condition.
And even if the District Court had found that Eaglin presented some risk of
seeking to obtain and possess child pornography, it would still need to support its
blanket ban on his accessing adult pornography by reference to the relevant statutory
factors. Here, the District Court erroneously treated the possession of adult
pornography as reprehensible in itself, rather than as an otherwise lawful action that
violated Eaglin’s conditions of supervised release. Imposing a wholesale ban on
accessing adult pornography might be justified where the offense of conviction
involved the creation of adult pornography with unconsenting victims, see, e.g.,
Simmons, 343 F.3d at 82, or where a mental health professional testified that viewing
pornography would be detrimental to the defendant’s rehabilitation, see, e.g., Springer,
684 F. App’x at 40. In line with the decisions of many other courts, however, we
conclude that a blanket ban on possessing or accessing adult pornography cannot be
imposed unless such a ban on adult pornography is reasonably related to the sentencing
factors and reasonably necessary to accomplish the goals of sentencing.
Finally, the record provides inadequate support for the proposition that a
decade‐long deprivation of access to constitutionally permissible material is reasonably
necessary to protect the public or meet the other sentencing goals of 18 U.S.C. § 3553(a).
In finding an adult pornography ban to be more restrictive than necessary to achieve
the goals of sentencing where there is little indication that access to such material will
impede a defendant’s rehabilitation or put the community at risk, we have company.
See United States v. Taylor, 796 F.3d 788, 793 (7th Cir. 2015) (“It is true that both Taylor’s
crime and adult pornography have to do with sexual activity. But there is no evidence
that viewing or listening to adult pornography in any way led Taylor to commit the
crime here, or has led him to commit any other crime, nor is there any evidence in the
record that viewing or listening to adult pornography would make the repeat of
Taylor’s crime or similar crimes any more likely.”); United States v. Salazar, 743 F.3d 445,
452 (5th Cir. 2014) (“It is hard to imagine how preventing Salazar from accessing
sexually stimulating materials would prevent future criminal conduct when there is no
indication in the record that Salazar has an unhealthy relationship with such materials
or that such materials contributed to his underlying crimes or other violations.”); United
States v. Perazza‐Mercado, 553 F.3d 65, 76 (1st Cir. 2009) (“If the district court believed
that there was some relationship between the defendant’s possession and use of adult
pornography and the likelihood that he would engage in sexual misconduct involving
young girls, the court should have explained the basis for that conclusion.”); United
States v. Voelker, 489 F.3d 139, 152‐53 (3d Cir. 2007) (“[N]othing on this record suggests
that sexually explicit material involving only adults contributed in any way to Voelker’s
offense, nor is there any reason to believe that viewing such material would cause
Voelker to reoffend”).
In sum, on this record, we can discern no reasonable relation between Eaglin’s
underlying offense of failure to register, his criminal history (including his fifteen‐year
old statutory rape crimes), his likelihood of recidivism, or need for rehabilitative
service, on the one hand, and the District Court’s wholesale restriction of his possession
of legal adult pornography, on the other. Nor have we been directed to any record
evidence suggesting Eaglin’s rehabilitation will be impaired by viewing such
pornography. We conclude, therefore, that the District Court’s imposition of this
condition was substantively unreasonable in that it was not reasonably related to the
sentencing factors and not reasonably necessary to achieve a statutorily recognized
sentencing objective. Accordingly, the condition must be struck.
CONCLUSION
We conclude that the special conditions of supervised release banning access to
the Internet and to adult pornography are substantively unreasonable in the
circumstances presented here because neither is reasonably related to the relevant
sentencing factors and both involve a greater deprivation of liberty than is reasonably
necessary to implement the statutory purposes of sentencing. Accordingly, we
REMAND the cause for resentencing consistent with this opinion.