NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _________________
No. 24-1573 _________________
UNITED STATES OF AMERICA
v.
MICHAEL SHANE WAGGONER, Appellant
________________ On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 1:12-cr-00309-001) District Judge: Honorable Christopher C. Conner ________________ Submitted Under Third Circuit L.A.R. 34.1(a) December 6, 2024
Before: SHWARTZ, MATEY, and McKEE, Circuit Judges
(Opinion filed March 10, 2025)
______________
OPINION* ______________ McKEE, Circuit Judge.
*This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Michael Waggoner appeals the 16-month prison sentence he received for violating
the conditions of his supervised release, as well as the District Court’s imposition of a
condition of supervised release prohibiting him from viewing adult pornography. We will
affirm the 16-month sentence but vacate the challenged condition of supervised release.1
I.
In 2013, Waggoner pled guilty to possession of child pornography, in violation of
18 U.S.C. § 2252A(a)(5), and failure to register under the Sex Offender Registration and
Notification Act, in violation of 18 U.S.C.§ 2250. The District Court sentenced
Waggoner to 10 years of imprisonment followed by 15 years of supervised release.
In July 2021, Waggoner began supervised release. Less than a year later, in
September 2022, the Probation Office filed a petition to revoke Waggoner’s supervised
release, alleging that he had violated several conditions of supervision. Waggoner
admitted to using a computer at the library to view pornography and offering an
intellectually disabled adult money in exchange for oral sex. Finding that Waggoner had
violated the conditions of supervised release, the District Court sentenced Waggoner to 8
months of imprisonment followed by 10 years of supervised release.
In May 2023, Waggoner began his new term of supervised release. Again, less
than a year later, the Probation Office filed a petition to revoke Waggoner’s supervised
release, alleging that he had violated several conditions of supervision. Waggoner
1 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291. 2 admitted to possessing an unauthorized cellphone for six months without informing his
probation officer, and using it to view adult pornography. Although no child pornography
was found on the phone, Waggoner admitted to searching for images of children peeing.
The District Court determined that Waggoner’s Guidelines range was 4 to 10
months of imprisonment. Defense counsel conceded “that the court could justify a
sentence probably a little bit above the guideline range.”2 After listening to Waggoner’s
allocution, and considering the “appropriate factors set forth in Section 3553,” the
District Court concluded that Waggoner posed “a significant danger to the community”
due to his repeated “deceitful and deceptive behaviors.”3 The District Court expressed
concern that Waggoner had not been deterred from reoffending by his previous sentences
and that he presented a “high risk [of] recidivism.”4 Accordingly, the District Court
sentenced Waggoner to a term of 16 months of imprisonment because it was “necessary
to deter Mr. Waggoner and to protect the community from future criminal activity.”5 The
District Court also sentenced Waggoner to an additional 10 years of supervised release.
As a condition of supervised release, the District Court prohibited Waggoner from
viewing or possessing “any ‘visual depiction’ (as defined in 18 U.S.C. § 2256), including
any photograph, film, video, or computer-generated image or picture, whether made or
produced by electronic, mechanical, or other means, of ‘sexually explicit conduct’ (as
2 Appx. 53. 3 Appx. 53–54. 4 Appx. 54. 5 Appx. 54. The District Court also found that a sentence above the Guidelines range was justified by Application Note 3 of USSG § 7B1.4. 3 defined in 18 U.S.C. § 2256).”6 Defense counsel asked the District Court for clarification
as to whether this condition prohibited Waggoner from viewing adult pornography.
Rather than clarifying the scope of the District Court’s condition, the judge sought
guidance from the probation officer. The probation officer advised that Waggoner also
had a condition requiring treatment, and that as part of his treatment, Waggoner would
“sign[] a contract with the treatment provider not to view any pornography, whether it’s
adult or child pornography.”7 The District Court found that the probation officer had
“clarifie[d]” the condition.8 Despite imposition of a special condition that explicitly
forbid Waggoner from viewing or possessing “sexually explicit conduct,” the District
Court adamantly stated that it had not imposed any condition prohibiting Waggoner from
viewing adult pornography.
II.
Waggoner argues that his 16-month sentence is procedurally and substantively
unreasonable. Generally, we review whether a revocation sentence is procedurally and
substantively reasonable for abuse of discretion.9 Because Waggoner raises procedural
reasonableness for the first time on appeal, however, plain error review applies to that
issue.10
6 Appx. 8. 7 Appx. 55. 8 Appx. 55. 9 See United States v. Thornhill, 759 F.3d 299, 307 n.9 (3d Cir. 2014). 10 See United States v. Packer, 83 F.4th 193, 198 (3d Cir. 2023). 4 When reviewing a sentence for reasonableness, we first consider whether the
district court committed any “significant procedural error, such as failing to calculate (or
improperly calculating) the Guidelines range, treating the Guidelines as mandatory,
failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen sentence—including an
explanation for any deviation from the Guidelines range.”11 Second, we consider the
substantive reasonableness of the sentence imposed, “tak[ing] into account the totality of
the circumstances.”12 “[I]f the district court’s sentence is procedurally sound, we will
affirm it unless no reasonable sentencing court would have imposed the same sentence on
that particular defendant for the reasons the district court provided.”13
Waggoner contends that the District Court “erred in its weighing of the [§]
3553(a) factors” because the violation was “relatively minor” and he “quickly took
responsibility for his mistake.”14 In fashioning a sentence, however, the District Court
properly calculated the Guidelines range and considered the appropriate § 3553(a)
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _________________
No. 24-1573 _________________
UNITED STATES OF AMERICA
v.
MICHAEL SHANE WAGGONER, Appellant
________________ On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 1:12-cr-00309-001) District Judge: Honorable Christopher C. Conner ________________ Submitted Under Third Circuit L.A.R. 34.1(a) December 6, 2024
Before: SHWARTZ, MATEY, and McKEE, Circuit Judges
(Opinion filed March 10, 2025)
______________
OPINION* ______________ McKEE, Circuit Judge.
*This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Michael Waggoner appeals the 16-month prison sentence he received for violating
the conditions of his supervised release, as well as the District Court’s imposition of a
condition of supervised release prohibiting him from viewing adult pornography. We will
affirm the 16-month sentence but vacate the challenged condition of supervised release.1
I.
In 2013, Waggoner pled guilty to possession of child pornography, in violation of
18 U.S.C. § 2252A(a)(5), and failure to register under the Sex Offender Registration and
Notification Act, in violation of 18 U.S.C.§ 2250. The District Court sentenced
Waggoner to 10 years of imprisonment followed by 15 years of supervised release.
In July 2021, Waggoner began supervised release. Less than a year later, in
September 2022, the Probation Office filed a petition to revoke Waggoner’s supervised
release, alleging that he had violated several conditions of supervision. Waggoner
admitted to using a computer at the library to view pornography and offering an
intellectually disabled adult money in exchange for oral sex. Finding that Waggoner had
violated the conditions of supervised release, the District Court sentenced Waggoner to 8
months of imprisonment followed by 10 years of supervised release.
In May 2023, Waggoner began his new term of supervised release. Again, less
than a year later, the Probation Office filed a petition to revoke Waggoner’s supervised
release, alleging that he had violated several conditions of supervision. Waggoner
1 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291. 2 admitted to possessing an unauthorized cellphone for six months without informing his
probation officer, and using it to view adult pornography. Although no child pornography
was found on the phone, Waggoner admitted to searching for images of children peeing.
The District Court determined that Waggoner’s Guidelines range was 4 to 10
months of imprisonment. Defense counsel conceded “that the court could justify a
sentence probably a little bit above the guideline range.”2 After listening to Waggoner’s
allocution, and considering the “appropriate factors set forth in Section 3553,” the
District Court concluded that Waggoner posed “a significant danger to the community”
due to his repeated “deceitful and deceptive behaviors.”3 The District Court expressed
concern that Waggoner had not been deterred from reoffending by his previous sentences
and that he presented a “high risk [of] recidivism.”4 Accordingly, the District Court
sentenced Waggoner to a term of 16 months of imprisonment because it was “necessary
to deter Mr. Waggoner and to protect the community from future criminal activity.”5 The
District Court also sentenced Waggoner to an additional 10 years of supervised release.
As a condition of supervised release, the District Court prohibited Waggoner from
viewing or possessing “any ‘visual depiction’ (as defined in 18 U.S.C. § 2256), including
any photograph, film, video, or computer-generated image or picture, whether made or
produced by electronic, mechanical, or other means, of ‘sexually explicit conduct’ (as
2 Appx. 53. 3 Appx. 53–54. 4 Appx. 54. 5 Appx. 54. The District Court also found that a sentence above the Guidelines range was justified by Application Note 3 of USSG § 7B1.4. 3 defined in 18 U.S.C. § 2256).”6 Defense counsel asked the District Court for clarification
as to whether this condition prohibited Waggoner from viewing adult pornography.
Rather than clarifying the scope of the District Court’s condition, the judge sought
guidance from the probation officer. The probation officer advised that Waggoner also
had a condition requiring treatment, and that as part of his treatment, Waggoner would
“sign[] a contract with the treatment provider not to view any pornography, whether it’s
adult or child pornography.”7 The District Court found that the probation officer had
“clarifie[d]” the condition.8 Despite imposition of a special condition that explicitly
forbid Waggoner from viewing or possessing “sexually explicit conduct,” the District
Court adamantly stated that it had not imposed any condition prohibiting Waggoner from
viewing adult pornography.
II.
Waggoner argues that his 16-month sentence is procedurally and substantively
unreasonable. Generally, we review whether a revocation sentence is procedurally and
substantively reasonable for abuse of discretion.9 Because Waggoner raises procedural
reasonableness for the first time on appeal, however, plain error review applies to that
issue.10
6 Appx. 8. 7 Appx. 55. 8 Appx. 55. 9 See United States v. Thornhill, 759 F.3d 299, 307 n.9 (3d Cir. 2014). 10 See United States v. Packer, 83 F.4th 193, 198 (3d Cir. 2023). 4 When reviewing a sentence for reasonableness, we first consider whether the
district court committed any “significant procedural error, such as failing to calculate (or
improperly calculating) the Guidelines range, treating the Guidelines as mandatory,
failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen sentence—including an
explanation for any deviation from the Guidelines range.”11 Second, we consider the
substantive reasonableness of the sentence imposed, “tak[ing] into account the totality of
the circumstances.”12 “[I]f the district court’s sentence is procedurally sound, we will
affirm it unless no reasonable sentencing court would have imposed the same sentence on
that particular defendant for the reasons the district court provided.”13
Waggoner contends that the District Court “erred in its weighing of the [§]
3553(a) factors” because the violation was “relatively minor” and he “quickly took
responsibility for his mistake.”14 In fashioning a sentence, however, the District Court
properly calculated the Guidelines range and considered the appropriate § 3553(a)
factors, as well as Waggoner’s allocution. While the District Court acknowledged
Waggoner was “aware[] of his addiction to child pornography” and understood “his
responsibility . . . to stop that conduct,” the District Court concluded, based on
Waggoner’s history, that he is at “very high risk” of recidivism.15 Although Waggoner’s
11 Gall v. United States, 552 U.S. 38, 51 (2007). 12 Id. 13 United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009). 14 Opening Br. 21. 15 Appx. 54. 5 phone did not contain any child pornography, the District Court noted that Waggoner had
used the unauthorized cellphone to “search[] for nude young boys.”16 The District Court
sentenced Waggoner above the Guidelines because it was “necessary to deter Mr.
Waggoner and to protect the community from future criminal activity.”17 Under these
circumstances, it cannot be said that no reasonable court would have imposed a 16-month
sentence for Waggoner’s second violation of supervised release. Accordingly, the 16-
month sentence was procedurally and substantively reasonable.
III.
Waggoner also appeals the District Court’s imposition of a condition of supervised
release prohibiting him from viewing or possessing “sexually explicit conduct.”18 We
review a district court’s decision to impose conditions of supervised release for abuse of
discretion.19 A district court acts within its discretion if it meets the following two
criteria: “First, the condition must be reasonably related to the factors set forth in 18
U.S.C. § 3553(a)(1) & (2)(B)-(D). . . . Second, a condition must involve no greater
deprivation of liberty than is reasonably necessary to achieve the deterrence, public
protection and/or correctional treatment for which it is imposed.”20
To its credit, the government concedes that this condition should be vacated from
the judgment “[b]ecause the written judgment conflicts with the district court’s
16 Appx. 54. 17 Appx. 54. 18 Appx. 8. 19 United States v. Loy, 237 F.3d 251, 256 (3d Cir. 2001). 20 Id. 6 unambiguous statements at the sentencing hearing that it did not intend to impose a
freestanding condition that prohibited Waggoner from viewing adult pornography.”21
Given that the District Court apparently did not realize the condition it imposed forbid
adult pornography, it could not have considered whether the condition was reasonably
related to the § 3553(a) factors. “Although a ban on accessing sexually explicit material
involving children would certainly be reasonable, there are First Amendment
implications for a ban that extends to explicit material involving adults.”22 “[T]o avoid
First Amendment infirmity, [such] a probation condition must be ‘narrowly tailored’ and
‘directly related’ to the goals of protecting the public and promoting . . . rehabilitation.”23
Because the District Court failed to even recognize that it was imposing such a ban, it
could not have been narrowly tailored to involve no greater deprivation of liberty than
was reasonably necessary. Moreover, the District Court’s misleading and conflicting
messages as to whether Waggoner was prohibited from viewing adult pornography
violated Waggoner’s due process rights “by failing to provide [him] with adequate notice
of what he may and may not do, chilling his First Amendment rights in the process.”24
Rather than eliminate this condition when defense counsel asked for clarification
as to whether it prohibited the viewing of adult pornography, the District Court
exacerbated the problem by deferring to the probation officer. After seeking guidance
21 Answering Br. 19. 22 United States v. Voelker, 489 F.3d 139, 151 (3d Cir. 2007). 23 Loy, 237 F.3d at 264 (quoting United States v. Crandon, 173 F.3d 122, 128 (3d Cir. 1999)). 24 Id. at 267. 7 from the probation officer as to whether a ban would apply, the officer explained that
Waggoner would “sign[] a contract with the treatment provider not to view any
pornography, whether it’s adult or child pornography. So that is a condition of the
court.”25 The District Court then informed defense counsel: “I think that clarifies it.”26
However, “a probation officer may not decide the nature or extent of the punishment
imposed upon a probationer. This limitation extends not only to the length of a prison
term imposed, but also to the conditions of probation or supervised release.”27 The
District Court’s reliance on the probation officer to interpret whether a prohibition on
adult pornography applied was tantamount to an impermissible delegation of judicial
authority.
IV.
For the foregoing reasons, we will vacate the challenged condition of supervised
release and affirm all other aspects of Waggoner’s sentence. We will remand to the
District Court for further proceedings consistent with this opinion.
25 Appx. 55 26 Id. 27 United States v. Pruden, 398 F.3d 241, 250 (3d Cir. 2005) (citations omitted). 8