United States v. Nunley

1

United States of America, Plaintiff-Appellee, v. Chesley Nunley, Defendant-Appellant.

No. 21-50572

United States Court of Appeals, Fifth Circuit

November 15, 2022

Appeal from the United States District Court for the Western District of Texas USDC No. 6:20-CR-159-1

Before HIGGINBOTHAM, SOUTHWICK, and HIGGINSON, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge: ^[*]

Chesley Nunley pleaded guilty to possessing visual depictions of sexual activities by minors in violation of 18 U.S.C. § 2252A(a)(5)(B). He was sentenced to 135 months, the bottom of the guidelines range, followed by supervised release for the remainder of his life. Nunley timely appeals several conditions of his supervised release. We have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291. For the reasons given below, we VACATE Nunley's special conditions of supervised release and REMAND for limited resentencing on those conditions.

Nunley challenges special conditions of his supervised release which, as orally pronounced, state that he

will not possess or be in any residence where there is a computer, and I don't care how that's defined whether it's a phone, a laptop, an iPad, a computer. If it is able to transmit or receive images, the Defendant will not be permitted to have anything that's electronic in his house.

In fact, I'm going to go that broad. The Defendant will not be allowed to have anything that is electronic in the residence that he's in, whether it's a television anything that could show visual pictures. He will have-he will never access the Internet while he is on supervised release, which, again, is for life.^[1]

Because he did not object to these conditions below, we review for plain error. See United States v. Dean, 940 F.3d 888, 890-91 (5th Cir. 2019).

To establish plain error, Nunley must show an error that was clear or obvious and that affects his substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes such a showing, this court has the discretion to correct the error, "which ought to be exercised only if the error 'seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.'" Id. (alteration in original) (quoting United States v. Olano, 507 U.S. 725, 736 (1993)).

Conditions of supervised release "cannot involve a greater deprivation of liberty than is reasonably necessary to achieve" the statutory goals of 18 U.S.C. § 3583(d)(2). United States v. Paul, 274 F.3d 155, 165 (5th Cir. 2001). Nunley argues that lifetime bans on computers, electronics and the Internet involve a greater deprivation than necessary, and their imposition was plain error, relying on our decision in United States v Duke, 788 F.3d 392, 399 (5th Cir. 2015).

In Duke, we "addressed whether absolute bans" on computer and Internet access, "imposed for the rest of a defendant's life, are permissible conditions" of supervised release. "We conclude[d] that they are not." Id. We found that "the ubiquity and importance of the Internet to the modern world makes an unconditional ban unreasonable," and that an "absolute computer and Internet ban would completely preclude [the defendant] from meaningfully participating in modern society for the rest of his life." Id. at 400; see also United States v. Sealed Juvenile, 781 F.3d 747, 756 (5th Cir. 2015) ("[A]ccess to computers and the Internet is essential to functioning in today's society."). Such bans, we held in Duke, cannot satisfy the requirement that conditions "be narrowly tailored to avoid imposing a greater deprivation than reasonably necessary" because "an unconditional, lifetime ban is the antithesis of a narrowly tailored sanction." Duke, 788 F.3d. at 399 (quotation omitted).

Although our review in Duke was for abuse of discretion, we noted favorably the Third Circuit's decision in United States v. Heckman, 592 F.3d 400, 409 (3d Cir. 2010), for the proposition that "the unconditional, lifetime ban imposed . . . is so broad and insufficiently tailored as to constitute 'plain error.'" Duke, 788 F.3d at 399.

In turn, in United States v. Scott, 821 F.3d 562, 571 (5th Cir. 2016), we held that it was plain error for a district judge to impose a lifetime computer ban in the context of child pornography possession, reasoning that, in light of Duke, such conditions "are clearly erroneous."

The Government argues that Duke and Scott still leave open the possibility that lifetime computer and Internet bans could, in certain cases, albeit none cited by the Government, involve no greater deprivation of liberty than is reasonably necessary under 18 U.S.C. § 3583(d)(2). "Here," it claims, "Nunley's history and characteristics and the nature and circumstances of the offense" make this such an exceptional case, highlighting that (1) decades ago, Nunley's military training made him familiar with how computer files are encrypted and with the difficulties of searching computers; (2) Nunley told investigators he has a "child pornography addiction"; and, most concerning, (3) Nunley sexually abused his children and his grandchildren, and though he was never charged for these acts, they are described in his presentence report, which he does not contest.

Whether these facts distinguish our controlling precedent in Duke and Scott presents a difficult question. This is especially so when we would also assess whether the modifiable nature of supervised release conditions implicates whether error at imposition still "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." Puckett v. United States, 556 U.S. 129, 135 (2009) (quoting United States v. Olano, 507 U.S. 725, 736 (1993)). Compare United States v. Prieto, 801 F.3d 547, 554 (5th Cir. 2015) (explaining the modifiable nature of supervised release conditions "weighs heavily in our consideration of the fourth prong" because such a condition "works a less significant deprivation of liberty than one which cannot be altered" (internal quotation marks and citation omitted)), with United States v. Bree, 927 F.3d 856, 862 (5th Cir. 2019) (explaining that defendants' ability to modify a special condition of supervised release "is only one factor considered as we determine whether to exercise our discretion" (internal quotation marks and citation omitted)).

We pretermit answering this difficult question, however, because we perceive a more basic error. The district court explicitly said it would not define one prohibited item that triggers Nunley's lifetime bans-"a computer"-and appears to have said Nunley cannot "be in any residence" where there is a computer. Moreover, the district court stated Nunley may not live in a residence with any "electronic . . . that could show visual pictures." It is improbable that the district court intended to ban Nunley from any residence with a "smart appliance," or from living in a home with doorbell home-security video transmissions. But if it did, we do not know why; and if it did not, we cannot discern the scope of these conditions.^[2] "The sentencing court has an obligation to express its sentences in clear terms to reveal with fair certainty its intent." United States v. Patrick Petroleum Corp. of Michigan, 703 F.2d 94, 98 (5th Cir. 1982); accord United States v. Taylor, 973 F.3d 414, 421 (5th Cir. 2020) ("Criminal sentences must reveal with fair certainty the intent of the court."); see also United States v. Guagliardo, 278 F.3d 868, 872 (9th Cir. 2002) ("A probationer . . . has a separate due process right to conditions of supervised release that are sufficiently clear to inform him of what conduct will result in his being returned to prison."). Where this obligation has not been met, it may be "in the interest of judicial economy and fairness to all concerned parties that we remand for clarification of the sentence." Patrick Petroleum Corp. of Michigan, 703 F.2d at 98; accord United States v. Juarez, 812 F.3d 432, 437 (5th Cir. 2016) (finding a sentence was "unclear or ambiguous" and therefore "vacat[ing] and remand[ing] for clarification in the interest of judicial economy and fairness to all concerned parties"); United States v. Garcia-Ortiz, 310 F.3d 792, 795 (5th...