Submitted: March 11, 2019
from United States District Court for the District of
Minnesota - St. Paul
SHEPHERD, ARNOLD, and ERICKSON, Circuit Judges.
SHEPHERD, CIRCUIT JUDGE.
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 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.
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)).
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.
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
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").
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).
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 ...