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United States v. Perrin

United States Court of Appeals, Eighth Circuit

June 19, 2019

United States of America Plaintiff - Appellee
Donald Thomas Perrin Defendant-Appellant

          Submitted: March 11, 2019

          Appeal from United States District Court for the District of Minnesota - St. Paul

          Before SHEPHERD, ARNOLD, and ERICKSON, Circuit Judges.


         Donald Thomas Perrin pled guilty to production of child pornography, in violation of 18 U.S.C. § 2251(a), (e), and to commission of a felony offense involving a minor while being required to register as a sex offender, in violation of 18 U.S.C. § 2260A. The district court[1] sentenced him to 360 months imprisonment on the first count and 120 months imprisonment on the second count, to run consecutively to one another. The court also imposed a 20-year term of supervised release on the first count and a 3-year term of supervised release on the second count, to run concurrently to one another. Over Perrin's objection, the district court imposed a special condition of supervision that he "not possess or use a computer or have access to any online service without the prior approval of the U.S. Probation and Pretrial Services Office." Judgment 5, Dist. Ct. Dkt. 111. For the first time on appeal, Perrin challenges the condition on First Amendment grounds. Having jurisdiction under 28 U.S.C. § 1291, we affirm.


         This Court ordinarily "reviews the district court's imposition of the terms and conditions of supervised release for abuse of discretion[, ] . . . reviews de novo a district court's legal conclusion that a condition does not violate a defendant's constitutional rights, and reviews for clear error the factual findings supporting that conclusion." United States v. Fonder, 719 F.3d 960, 961 (8th Cir. 2013). This case, however, warrants an exception, as Perrin invokes the First Amendment for the first time on appeal. See United States v. Pirani, 406 F.3d 543, 549 (8th Cir. 2005) (en banc) ("An error by the trial court, even one affecting a constitutional right, is forfeited-that is, not preserved for appeal-'by the failure to make timely assertion of the right.'" (quoting United States v. Olano, 507 U.S. 725, 731 (1993))). It is well established that, "[t]o preserve an error for appellate review, an objection must be timely and must 'clearly stat[e] the grounds for the objection.'" Id. (quoting United States v. Williams, 994 F.2d 1287, 1294 (8th Cir. 1993)). This is "so that the trial court has an opportunity to prevent or correct the error in the first instance." Williams, 994 F.2d at 1294 (quoting United States v. Thornberg, 844 F.2d 573, 575 (8th Cir. 1988)).

         At his sentencing hearing, Perrin objected to the special condition "[t]o the extent that it says that there is no use of computers unless approved by Probation" and "ask[ed] the [district c]ourt to change that to no unlawful use of computers or . . . that he is allowed to use computers [for] the daily things that computers are now a part of in our lives, paying bills and things of that nature." Sent. Hr'g Tr. 40, Dist. Ct. Dkt. 125. However, he did not raise any of the First Amendment arguments he now urges on appeal-namely, that the special condition is "overbroad," is "an overly burdensome restriction on speech[, ]" and "impermissibly restricts [his] right to lawful speech[.]" Appellant's Br. i, 8-9. Compare United States v. Johnson, 710 F.3d 784, 788 (8th Cir. 2013) (concluding that objection was sufficient to preserve due process issue for appellate review because the objection was both "specific and timely" in that it "adequately referenced the right to cross-examine adverse witnesses" and the district court had an opportunity to correct the alleged error), with United States v. Stults, 575 F.3d 834, 854 (8th Cir. 2009) (reviewing for plain error the district court's imposition of a special condition of supervised release because the defendant's objection at sentencing specifically invoked the First Amendment and he argued the condition was overbroad "as it prohibited him from accessing lawful materials" but on appeal he argued that the condition was unconstitutionally vague). Perrin objected to a different condition as "overly broad and unnecessary[, ]" but not the one germane to this appeal. Sent. Hr'g Tr. 40.

         Further, at no point did Perrin object to the special condition's prohibition on "access to any online service[.]" Judgment 5. Nor did he direct the district court to Packingham v. North Carolina, 137 S.Ct. 1730 (2017), which serves as the predicate for his First Amendment challenge to the special condition. See Appellant's Br. 11 (asking this Court to "re-examine" the special condition "in light of" Packingham). Perrin cannot claim Packingham was unavailable to him; it was decided on June 19, 2017, well before his sentencing hearing on February 28, 2018.

         Nor is it material that the government argued that review is for abuse of discretion, rather than for plain error. See United States v. Bain, 586 F.3d 634, 639 n.4, 639-40 (8th Cir. 2009) (per curiam) (reviewing for plain error despite the parties claiming error was preserved and despite the government advocating for abuse of discretion standard). Indeed, "[a] party's concession on the standard of review does not bind the court, as '[s]uch a determination remains for this court to make for itself.'" Id. at 639 n.4 (second alteration in original) (quoting K & T Enters., Inc. v. Zurich Ins. Co., 97 F.3d 171, 175 (6th Cir. 1996)); see also United States v. Ellis, 815 F.3d 419, 422 n.2 (8th Cir. 2016) (reinforcing Bain); accord United States v. Macias, 789 F.3d 1011, 1017 n.3 (9th Cir. 2015) ("Which standard of review to apply is a pure issue of law, and, exercising our discretion, we apply the plain error standard of review notwithstanding the government's failure to argue that it should apply." (citation omitted)); United States v. Williams, 641 F.3d 758, 773 (6th Cir. 2011) (Thapar, J., concurring) (citing Bain as holding "that the parties cannot waive plain error review by failing to request it" and stating that "[t]he Eighth Circuit is on the right side of the split"). But see United States v. Encarnación-Ruiz, 787 F.3d 581, 586-87 (1st Cir. 2015) (collecting cases from the First, Sixth, Seventh, Ninth, and D.C. Circuits that provide that, "[w]hen the government fails to request plain error review, . . . the claim [is reviewed] under the standard of review that is applied when the issue is properly preserved below"); United States v. Jeffries, 587 F.3d 690, 691 n.1 (5th Cir. 2009) (noting that "the Government does not seek plain error review").

         Accordingly, Perrin's objection to the special condition is insufficient, and we will review for plain error. See Pirani, 406 F.3d at 549 ("Errors not properly preserved are reviewed only for plain error . . . ."); see also United States v. Munjak, 669 F.3d 906, 908 (8th Cir. 2012) (reviewing for plain error imposition of special condition of supervised release prohibiting the defendant from "accessing the Internet without the prior approval of the probation office"). "The plain-error test is well established[.]" United States v. Barthman, 919 F.3d 1118, 1120-21 (8th Cir. 2019) (describing the four prongs of plain-error review). But we need not go through the test in depth because "[t]he threshold requirement for relief under the plain-error standard is the presence of an error and," here, that is missing. United States v. Evans, 908 F.3d 346, 351 (8th Cir. 2018).


         It is well established that, "[w]hile a sentencing court has 'wide discretion' to impose special conditions of supervised release, such conditions must satisfy the requirements set out in 18 U.S.C. § 3583(d)." United States v. Durham, 618 F.3d 921, 944 (8th Cir. 2010) (quoting United States v. Crume, 422 F.3d 728, 732 (8th Cir. 2005)).

First, the special conditions must be reasonably related to five matters: the nature and circumstances of the offense, the defendant's history and characteristics, the deterrence of criminal conduct, the protection of the public from further crimes of the defendant, and the defendant's educational, vocational, medical or other correctional needs. Second, the conditions must involve[] no greater deprivation of liberty than is reasonably necessary to advance deterrence, the protection of the public from future crimes of the defendant, and the ...

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