United States v. Jack Aldrich

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 22, 2019
• Docket: 18-14678
• Status: Unpublished

Opinion

Case: 18-14678 Date Filed: 08/22/2019 Page: 1 of 10

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-14678 Non-Argument Calendar ________________________

D.C. Docket No. 2:08-cr-14021-DLG-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JACK ALDRICH,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(August 22, 2019)

Before WILSON, GRANT, and HULL, Circuit Judges.

PER CURIAM: Case: 18-14678 Date Filed: 08/22/2019 Page: 2 of 10

Jack Aldrich appeals the district court’s denial of his motion to modify a

special condition of supervised release. He has also filed a “motion to appeal,”

contending that the district court failed to consider issues that he raised in the

motion for modification. The district court did not abuse its discretion in denying

Aldrich’s motion to modify the supervised release condition because the relevant

statutory factors and binding precedent support the condition. We therefore affirm

the order of the district court and deny Aldrich’s motion to appeal as moot.

I.

In May 2008, Aldrich pleaded guilty to a single count of using a computer to

persuade, induce, entice, or coerce a minor to engage in sexual activity, and

attempting to do so, in violation of 18 U.S.C. § 2422(b). The offense conduct

arose from a series of communications, via Internet chatroom and phone, between

Aldrich and an undercover officer (“UC”) posing as a 15-year-old female and

involved Aldrich masturbating in front of the UC through a web camera. In

addition to admitting to these communications during a post-arrest interview,

Aldrich admitted to recent communications with a 14-year-old female, as well as to

a 1993 arrest for masturbating in front of female high school students.

In September 2008, Aldrich was sentenced to a term of 168 months’

imprisonment followed by a lifetime term of supervised release. The district court

imposed the following “computer possession restriction” as a special condition of

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supervised release: “The defendant shall not possess or use any computer; except

that the defendant may, with the prior approval of the Court, use a computer in

connection with authorized employment.”

Ten years later, Aldrich filed a motion to modify the computer possession

restriction pursuant to 18 U.S.C. § 3583(e)(2), which governs the modification of

supervised release conditions. Aldrich first argued that the condition was

inconsistent with the 18 U.S.C. § 3553(a) factors referenced in 18 U.S.C.

§ 3583(d), which governs the imposition of supervised release conditions. Aldrich

contended that the condition would make getting a job “extremely difficult,” that

its reference to “authorized employment” was ambiguous, and that gaining court

approval for computer usage would impede his job prospects. He also asserted that

the condition was unnecessary to protect the public and would have a negative

impact on his ability to access certain training programs and information. Second,

and relatedly, Aldrich argued that the condition imposed a greater deprivation of

liberty than reasonably necessary. Finally, relying, in part, on Packingham v.

North Carolina, 137 S. Ct. 1730 (2017), Aldrich argued that the condition violated

the First Amendment. He attached to the motion a statement indicating that he had

not been disciplined while in prison and had been allowed to use a computer for

certain purposes without incident, as well as records detailing his educational and

work history while in prison.

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The government responded that Aldrich’s motion was premature because it

was “filled with conjecture about events that may or may not happen” upon his

expected release from custody, and that although Aldrich had behaved well in

prison, the court did not know how he would conduct himself later. The

government argued that Aldrich’s history and characteristics, the serious nature of

the offense, deterrence, and public protection all weighed in favor of denying the

motion without prejudice.

In October 2018, the district court, “having reviewed the record” and the

government’s opposition, denied Aldrich’s motion without prejudice as premature.

The court stated that Aldrich could refile his motion upon his release from prison,

at which time he could present “any actual, ‘real life scenario and facts’ regarding

his employment etc.” relating to the condition.

II.

We review the denial of a motion to modify the conditions of supervised

release for an abuse of discretion. See United States v. Serrapio, 754 F.3d 1312,

1318 (11th Cir. 2014) (reviewing modification of a condition of probation under

this standard). Under this standard, we will not reverse absent a “definite and firm

conviction that the [district] court committed a clear error of judgment in the

conclusion it reached.” United States v. Taylor, 338 F.3d 1280, 1283 (11th Cir.

2003) (per curiam) (alteration in original) (citation omitted).

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III.

In imposing or modifying a condition of supervised release, a district court is

required to take into consideration certain factors set forth in 18 U.S.C. § 3553(a).

See 18 U.S.C. § 3583(d), (e); see also U.S.S.G. § 5D1.3(b). With respect to the

modification of a supervised release condition, the relevant factors are: (1) the

nature and circumstances of the offense; (2) the defendant’s history and

characteristics; (3) the need for deterrence; (4) the need to protect the public;

(5) the need to provide the defendant with educational and vocational training,

medical care, or correctional treatment; (6) the applicable guideline range; (7) any

pertinent policy statements set forth by the Sentencing Commission; (8) the need to

avoid unwarranted sentencing disparities; and (9) the need to provide restitution.

See 18 U.S.C. § 3583(e) (citing 18 U.S.C. § 3553(a)(1), (2)(B)–(D), (4)–(7)). “It is

not necessary for a special condition to be supported by each § 3553(a) factor;

rather, each factor is an independent consideration to be weighed.” United States v.

Tome, 611 F.3d 1371, 1376 (11th Cir. 2010). For sex offenses, the Sentencing

Guidelines include a policy statement recommending “[a] condition limiting the

use of a computer or an interactive computer service in cases in which the

defendant used such items.” U.S.S.G. § 5D1.3(d)(7)(B).

In general, a claim is not ripe for review “if it rests upon contingent future

events that may not occur as anticipated, or indeed may not occur at all.” Texas v.

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United States, 523 U.S. 296, 300 (1998) (citation and internal quotation marks

omitted). In United States v. Zinn, we held that although a prisoner’s challenge to

the imposition of a supervised release condition requiring him to submit to

polygraph testing as part of his sex offender treatment was generally ripe for

review, speculative arguments concerning the implementation of the condition

were not. 321 F.3d 1084, 1088–89, 90–92 (11th Cir. 2003) (rejecting arguments

against polygraph testing, in which defendant contended that he may be forced to

answer an incriminating question or that the probation officer overseeing testing

might abuse his authority, as hypothetical).

A sentencing court need not discuss each § 3553(a) factor or even explicitly

state that the § 3553(a) factors were considered as long as the record clearly

implies that they were taken into account. See United States v. Johnson, 877 F.3d

993, 998 (11th Cir. 2017) (per curiam). For example, in the context of a motion to

reduce sentence, a short order stating that the district court had reviewed the

record, the defendant’s motion, and the government’s opposition provided

sufficient reason for denying the motion; notably, both the defendant’s motion and

the government’s discussed the § 3553(a) factors. See United States v. Eggersdorf,

126 F.3d 1318, 1322–23 (11th Cir. 1997).

While a condition of supervised release “should not unduly restrict a

defendant’s liberty, a condition is not invalid simply because it affects a

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probationer’s ability to exercise constitutionally protected rights.” Tome, 611 F.3d

at 1376 (citation and internal quotation marks omitted). In numerous decisions

involving sex offenses that relied upon a computer, we have uniformly “upheld

conditions limiting computer access, emphasizing that such access could well

enable a sex offender to offend once again.” United States v. Carpenter, 803 F.3d

1224, 1239 (11th Cir. 2015). When we first addressed this issue in Zinn, we

recognized the importance of the Internet as a resource for information,

communication, and commerce. Zinn, 321 F.3d at 1092–93. Nevertheless, we

affirmed the imposition of a three-year condition prohibiting a defendant from

using a computer with Internet access without his probation officer’s approval

because the facts of that case—which involved digital images of child pornography

presumably obtained from the Internet—highlighted the need to protect the public

and sex offenders themselves from potential Internet abuses. Id. at 1093 & n.11.

We also concluded that the condition was narrowly tailored because the defendant

could still use the Internet with the permission of his probation officer. Id. at 1093.

More recently, in Carpenter, we affirmed on plain-error review the imposition of a

lifetime supervised release condition prohibiting a defendant from using any

computer or access device except in connection with authorized employment and

with prior court approval. Carpenter, 803 F.3d at 1239–40.

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In 2017, the Supreme Court struck down on First Amendment grounds a

North Carolina statute making it a felony for any registered sex offender to access

social networking websites where minors could also become members.

Packingham, 137 S. Ct. at 1736–37. The Court observed that the statute was not

narrowly tailored to preventing sex crimes against minors and was directed to

persons who had already served their sentences and were no longer subject to court

supervision. Id. at 1737.

Aldrich’s arguments that the computer possession restriction would make it

difficult to gain employment and would have a negative impact on his ability to

access training programs or other information were premature because they were

contingent upon hypothetical events that may or may not occur upon his release

from prison. See Texas, 523 U.S. at 300; Zinn, 321 F.3d at 1090–92. But his other

arguments—generally contending that the condition involved a greater deprivation

of liberty than necessary or violated the First Amendment—may not have been

premature because he will ultimately be subject to the condition upon release. See

Zinn, 321 F.3d at 1088–89. But even if Aldrich’s motion was not premature in its

entirety, the district court did not abuse its discretion in denying it without

reference to the § 3553(a) factors or Aldrich’s other arguments.

First, the record as a whole demonstrates that the § 3553(a) factors were

properly considered. Aldrich’s motion discussed the § 3553(a) factors, the

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government responded that “[t]he history and characteristics of the defendant, the

serious nature of the offense, deterrence, and public protection,” supported denying

the motion, and the district court stated that it had considered the record and the

government’s opposition, all of which is sufficient to support a finding that the

relevant statutory factors were taken into account, despite the court’s conclusion

that the motion was premature. See Eggersdorf, 126 F.3d at 1322–23. Moreover,

given Aldrich’s prior conduct, the fact that the instant offense relied on a computer,

and precedent holding that an Internet usage restriction can protect both the public

and sex offenders, the factors referenced by the government support the retention

of the special condition. See Zinn, 321 F.3d at 1093.

Second, to the extent that it had jurisdiction to consider them, the district

court did not abuse its discretion in rejecting Aldrich’s other arguments without

comment. This Court has upheld similar computer usage conditions, which are

recommended by the sentencing guidelines, as narrowly tailored. See id.; U.S.S.G.

§ 5D1.3(d)(7)(B). As to Aldrich’s First Amendment challenge, Packingham is

distinguishable in that it restricted social media access for all registered sex

offenders, regardless of the nature of their crime, and notwithstanding the fact that

they had completed their sentences and were no longer under court supervision.

See Packingham, 137 S. Ct. at 1737.

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IV.

For the reasons set forth above, the district court’s denial of Aldrich’s

motion to modify a special condition of supervised release is AFFIRMED.

Aldrich’s motion to appeal is DENIED as moot.