Appellate Case: 21-6071 Document: 010110703124 Date Filed: 06/29/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 29, 2022 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 21-6071 v. (D.C. No. 5:99-CR-00019-F-1) (W.D. Okla.) ROBERT MACK HOLUBY,
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before TYMKOVICH, Chief Judge, BALDOCK, and ROSSMAN, Circuit Judges.1 _________________________________
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 appeal arises from a district court’s reimposition of a supervised release
condition on a sex offender’s third violation of supervised release. The condition
forbids the defendant from possessing adult pornography, which he argues is a
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. 1 Judge Rossman joins the proposed order and judgment in full, with the exception of the discussion of the third and fourth prongs of plain error, which she does not believe is necessary to the disposition of this appeal. Appellate Case: 21-6071 Document: 010110703124 Date Filed: 06/29/2022 Page: 2
fundamental right. The district court did not provide reasoning for the condition, as
it must when a condition impinges on a fundamental right. The defendant did not
object at sentencing. He now appeals, arguing the district court committed plain
error.
I. BACKGROUND
In 1999, Robert Holuby, then 31 years old, pled guilty to two counts of engaging
in sex with a minor. He received two sentencing enhancements, one because the sexual
assaults were violent and the second because one of the children was in his custody at the
time of the assault. The district court also found he was a career offender, as he had
previous convictions for forcible sodomy and battery with intent to kill. It sentenced Mr.
Holuby to 262 months imprisonment and five years of supervised release. At Mr.
Holuby’s sentencing, the district court imposed a supervised release condition forbidding
him from possessing pornography.
Mr. Holuby was released from prison into a halfway house in February 2018. By
December 2018, Mr. Holuby had violated his supervised release conditions by drinking
alcohol and possessing adult pornography. At the hearing for the first revocation of Mr.
Holuby’s supervised release, the district court imposed the condition at issue: “The
defendant shall not view, purchase, possess, or distribute any form of pornography
depicting sexually explicit conduct as defined in 18 U.S.C. § 2256(2), unless approved
for treatment purposes, or frequent any place where such material is the primary product
2 Appellate Case: 21-6071 Document: 010110703124 Date Filed: 06/29/2022 Page: 3
for sale or entertainment is available.” Aple. Br. at 6. It sentenced Mr. Holuby to another
five months of custody and four years of supervised release.
In May 2019, Mr. Holuby was released from prison again. By October 2019, Mr.
Holuby committed myriad supervised release violations, including drinking alcohol and
again possessing adult pornography. The district court sentenced him to nine months
custody and 24 months supervised release. It reimposed many of the same conditions of
release, including the challenged pornography condition. Mr. Holuby did not object to
the conditions.
In July 2020, Mr. Holuby was again released from custody. By February 2021,
Mr. Holuby had again violated his conditions of supervised release. He admitted to
failing to update his address for the sex offender registry (SORNA), missing sex offender
treatment sessions, and drinking alcohol. The district court continued the revocation
hearing for Mr. Holuby to complete 60 days of alcohol monitoring.
In May 2021, the district court held the revocation hearing. It sentenced Mr.
Holuby to 14 months of custody and 12 months of supervised release. It reimposed the
prior conditions of supervised release, including the prohibition on pornography. Mr.
Holuby again did not object. See App. Vol. III at 22, 23 (Court: “[D]oes anybody desire
any additional or more detailed statement of reasons or have any other reason that I
3 Appellate Case: 21-6071 Document: 010110703124 Date Filed: 06/29/2022 Page: 4
should not impose sentence at this time?” Defense: “No.”; Court: “[D]oes the defendant
require me to read those special conditions at length?” Defense: “No.”).
Mr. Holuby now appeals the unreasoned imposition of the supervised release
condition prohibiting pornography.
II. ANALYSIS
The district court’s failure to provide reasoning for its condition restricting
pornography was not plain error. To meet the plain error standard, Mr. Holuby must
show (1) “an error” (2) “that is plain,” (3) “that affects substantial rights,” and (4)
“that seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” See United States v. Burns, 775 F.3d 1221, 1223 (10th Cir. 2014).
As for whether the district court erred, “when a court imposes a special
condition that invades a fundamental right or liberty interest, the court must justify
the condition with compelling circumstances.” Id. at 1223. If the district court had
failed to justify the first imposition of such a condition, it would constitute error. It
is not clear whether the district court erred when it failed to reason the second
imposition of the supervised release condition. We have not established whether a
district court must explain a condition upon reimposition of the condition.2 Thus, it
2 It is not clear that the district court ever provided reasoning for this special condition. But if Mr. Holuby truly objects to the initial imposition without reasoning, he has missed his window to appeal that decision. See United States v. Henry, 979 F.3d 1265, 1270 (10th Cir. 2020) (“[The defendant’s] objection to the court reimposing old supervised release conditions amounts to an improper collateral attack of the underlying sentence.” (quoting United States v. Simpson, 932 F.3d 1154, 1156 (8th Cir. 2019), cert. denied, 140 S. Ct. 826 (2020))). 4 Appellate Case: 21-6071 Document: 010110703124 Date Filed: 06/29/2022 Page: 5
is not clear that the district court erred here. See United States v. Henry, 979 F.3d
1265, 1270 (10th Cir. 2020) (concluding there were no “Tenth Circuit or Supreme
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Appellate Case: 21-6071 Document: 010110703124 Date Filed: 06/29/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 29, 2022 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 21-6071 v. (D.C. No. 5:99-CR-00019-F-1) (W.D. Okla.) ROBERT MACK HOLUBY,
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before TYMKOVICH, Chief Judge, BALDOCK, and ROSSMAN, Circuit Judges.1 _________________________________
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 appeal arises from a district court’s reimposition of a supervised release
condition on a sex offender’s third violation of supervised release. The condition
forbids the defendant from possessing adult pornography, which he argues is a
* 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. 1 Judge Rossman joins the proposed order and judgment in full, with the exception of the discussion of the third and fourth prongs of plain error, which she does not believe is necessary to the disposition of this appeal. Appellate Case: 21-6071 Document: 010110703124 Date Filed: 06/29/2022 Page: 2
fundamental right. The district court did not provide reasoning for the condition, as
it must when a condition impinges on a fundamental right. The defendant did not
object at sentencing. He now appeals, arguing the district court committed plain
error.
I. BACKGROUND
In 1999, Robert Holuby, then 31 years old, pled guilty to two counts of engaging
in sex with a minor. He received two sentencing enhancements, one because the sexual
assaults were violent and the second because one of the children was in his custody at the
time of the assault. The district court also found he was a career offender, as he had
previous convictions for forcible sodomy and battery with intent to kill. It sentenced Mr.
Holuby to 262 months imprisonment and five years of supervised release. At Mr.
Holuby’s sentencing, the district court imposed a supervised release condition forbidding
him from possessing pornography.
Mr. Holuby was released from prison into a halfway house in February 2018. By
December 2018, Mr. Holuby had violated his supervised release conditions by drinking
alcohol and possessing adult pornography. At the hearing for the first revocation of Mr.
Holuby’s supervised release, the district court imposed the condition at issue: “The
defendant shall not view, purchase, possess, or distribute any form of pornography
depicting sexually explicit conduct as defined in 18 U.S.C. § 2256(2), unless approved
for treatment purposes, or frequent any place where such material is the primary product
2 Appellate Case: 21-6071 Document: 010110703124 Date Filed: 06/29/2022 Page: 3
for sale or entertainment is available.” Aple. Br. at 6. It sentenced Mr. Holuby to another
five months of custody and four years of supervised release.
In May 2019, Mr. Holuby was released from prison again. By October 2019, Mr.
Holuby committed myriad supervised release violations, including drinking alcohol and
again possessing adult pornography. The district court sentenced him to nine months
custody and 24 months supervised release. It reimposed many of the same conditions of
release, including the challenged pornography condition. Mr. Holuby did not object to
the conditions.
In July 2020, Mr. Holuby was again released from custody. By February 2021,
Mr. Holuby had again violated his conditions of supervised release. He admitted to
failing to update his address for the sex offender registry (SORNA), missing sex offender
treatment sessions, and drinking alcohol. The district court continued the revocation
hearing for Mr. Holuby to complete 60 days of alcohol monitoring.
In May 2021, the district court held the revocation hearing. It sentenced Mr.
Holuby to 14 months of custody and 12 months of supervised release. It reimposed the
prior conditions of supervised release, including the prohibition on pornography. Mr.
Holuby again did not object. See App. Vol. III at 22, 23 (Court: “[D]oes anybody desire
any additional or more detailed statement of reasons or have any other reason that I
3 Appellate Case: 21-6071 Document: 010110703124 Date Filed: 06/29/2022 Page: 4
should not impose sentence at this time?” Defense: “No.”; Court: “[D]oes the defendant
require me to read those special conditions at length?” Defense: “No.”).
Mr. Holuby now appeals the unreasoned imposition of the supervised release
condition prohibiting pornography.
II. ANALYSIS
The district court’s failure to provide reasoning for its condition restricting
pornography was not plain error. To meet the plain error standard, Mr. Holuby must
show (1) “an error” (2) “that is plain,” (3) “that affects substantial rights,” and (4)
“that seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” See United States v. Burns, 775 F.3d 1221, 1223 (10th Cir. 2014).
As for whether the district court erred, “when a court imposes a special
condition that invades a fundamental right or liberty interest, the court must justify
the condition with compelling circumstances.” Id. at 1223. If the district court had
failed to justify the first imposition of such a condition, it would constitute error. It
is not clear whether the district court erred when it failed to reason the second
imposition of the supervised release condition. We have not established whether a
district court must explain a condition upon reimposition of the condition.2 Thus, it
2 It is not clear that the district court ever provided reasoning for this special condition. But if Mr. Holuby truly objects to the initial imposition without reasoning, he has missed his window to appeal that decision. See United States v. Henry, 979 F.3d 1265, 1270 (10th Cir. 2020) (“[The defendant’s] objection to the court reimposing old supervised release conditions amounts to an improper collateral attack of the underlying sentence.” (quoting United States v. Simpson, 932 F.3d 1154, 1156 (8th Cir. 2019), cert. denied, 140 S. Ct. 826 (2020))). 4 Appellate Case: 21-6071 Document: 010110703124 Date Filed: 06/29/2022 Page: 5
is not clear that the district court erred here. See United States v. Henry, 979 F.3d
1265, 1270 (10th Cir. 2020) (concluding there were no “Tenth Circuit or Supreme
Court cases dealing with the procedural requirements for reimposing a special
condition of supervised release.”). Even assuming error, the error is not plain.
“An error is plain if it is ‘clear and obvious under current law.’” Id. (quoting
United States v. Brown, 316 F.3d 1151, 1158 (10th Cir. 2003)). Here, there is no
current law that makes it clear and obvious that a district court must provide
reasoning for the reimposition of a sentencing condition. The “lack of Tenth Circuit
precedent” on the issue of reasoning a reimposed condition “as well as these cases
from other circuits indicate that any error the district court made here was not plain.”
United States v. Henry, 979 F.3d 1265, 1270 (10th Cir. 2020) (collecting cases).
As for whether the error affected Mr. Holuby’s substantial rights, it did only if
there is “a reasonable probability that the error affected the outcome of the
proceedings.” Burns, 775 F.3d at 1224. “In the sentencing context, we ask: Is there
a reasonable probability that but for the court’s error, [the defendant] would have
received a lesser sentence?” Id. Since this case is about a special condition, we look
to the requirements for the imposition of a special condition. Those two
requirements are: (1) “The condition is reasonably related to the nature and
circumstances of the offense and the history and characteristics of the defendant;”
and (2) “The condition involves no greater deprivation of liberty than is reasonably
necessary.” Id. We will vacate a special condition only if there is “no basis” in the
record for such a condition. Henry, 979 F.3d at 1270. Here, Mr. Holuby’s parole
5 Appellate Case: 21-6071 Document: 010110703124 Date Filed: 06/29/2022 Page: 6
officer recommended the imposition of the condition. Further, the condition was
plainly related to Mr. Holuby’s underlying conviction for sexual assault. Thus, it is
likely the district court could and would have provided reasoning and still imposed
the condition.
Some courts collapse prongs (3)—affecting substantial rights—and (4)—
affecting the integrity of the proceedings—of the plain error test. But we do not
“subscribe to this approach.” United States v. Gonzalez-Huerta, 403 F.3d 727, 736
(10th Cir. 2005) (holding Supreme Court precedent requires that prongs (3) and (4)
must be given separate meaning). Thus, even if an error affects substantial rights, it
must also seriously affect the integrity of the proceedings to constitute plain error.
To seriously affect the fairness, integrity, or public reputation of judicial proceedings,
a non-constitutional error must be “particularly egregious” or, left uncorrected, result
in a “miscarriage of justice.” Id. (quoting United States v. Gilkey, 118 F.3d 702, 704
(10th Cir. 1997)). This is a demanding standard. Id. “[S]entencing error meets the
fourth prong of plain-error review only in those rare cases in which core notions of
justice are offended.” Id. at 739. This unreasoned reimposition of a supervised
release condition is not particularly egregious, nor does it constitute injustice. The
public reputation of the judiciary is unlikely to suffer because a violent sex offender
is denied access to pornography without explanation. This is especially true because
Mr. Holuby did not request additional explanation of the condition even when the
district court specifically asked him. See App. Vol. III at 22, 23.
6 Appellate Case: 21-6071 Document: 010110703124 Date Filed: 06/29/2022 Page: 7
Mr. Holuby has failed to show that the district court committed plain error.
Even if the district court erred, the error was not plain, did not affect Mr. Holuby’s
substantial rights, and did not affect the integrity of the proceedings.
III. CONCLUSION
For the reasons above, we find that the district court did not commit plain error.
Thus, we AFFIRM.
Entered for the Court
Timothy M. Tymkovich Chief Judge