Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.
Help support the publication of case reports on MoreLaw
Date: 11-08-2021
Case Style:
United States of America v. Jose Miguel Cordero
Case Number: 18-10837
Judge: Elizabeth Lee "Lisa" Branch
Court: IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
On appeal from The United States District Court
for the Middle District of Florida
Plaintiff's Attorney: United States Attorney’s Office
Defendant's Attorney:
Description:
Atlanta, GA - Criminal defense lawyer represented defendant with a
one count of accessing with intent to view child pornography charge.
In 2013, Cordero, pursuant to a written plea agreement, pleaded guilty to one
count of accessing with intent to view child pornography, in violation of 18 U.S.C.
§ 2252(a)(4)(B) and (b)(2).2
The factual basis included in the plea agreement indicated that on four separate occasions in 2006, Cordero made credit card
purchases via PayPal for access to a website containing child pornography, and a
forensic search of his laptop revealed “at least ten but less than 150 images of child
pornography.”3
The district court sentenced Cordero to twelve months and one day of
imprisonment to be followed by 120 months’ supervised release, consistent with
Cordero’s request in his sentencing memorandum.4
The district court
acknowledged that the sentence was a “substantial variance,” but that the case was
“unusual” and fell “far outside the heartland of cases that this statute was intended
to reach” given that the child pornography was accessed in 2006 and the court had
“no evidence that it was viewed from the time that it was initially placed on the
computer up and through today’s date.” The district court further noted that the
variance was warranted because: the government agreed that Cordero had not
3 According to his Presentence Investigation Report (“PSI”), Cordero’s laptop was
searched in October 2010 by a U.S. Customs and Border Protection Agent when he reentered the
United States following a cruise and was randomly selected for further screening. The search
revealed images of suspected child pornography. ICE agents then obtained a search warrant for
the computer. The forensic search revealed “two videos that depicted minor females engaged in
sexual activity.” Cordero admitted to law enforcement “that he viewed child pornography online
and subscribed to a website that offered images of child pornography.” He further admitted that
“he accessed Internet websites with the intent to view child pornography.”
4 Cordero’s guideline imprisonment range was 37 to 46 months’ imprisonment, and his
offense carried a term of supervised release of five years to life. Cordero filed a sentencing
memorandum requesting that the court impose a downward variance sentence and sentence him
to “one year and one day, followed by 10 years of sex offender supervised release.” He
maintained that the “requested sentence [was] sufficient, but not greater than necessary to
achieve the purposes of sentencing set out in [18 U.S.C. §] 3553(a)(2).”
USCA11 Case: 18-10837 Date Filed: 08/04/2021 Page: 3 of 23
4
accessed any child pornography since his arrest in 2010; Cordero’s risk assessment
indicated he was not a predator or sexual deviant; he had a history of “stellar
[military] service to the country”; considerable support from his family; and he had
not “made any inappropriate actual physical contact with any child.”
Cordero did not appeal and, after serving the incarceration portion of his
sentence, Cordero began serving his 10-year term of supervised release in 2014.
The terms and conditions of his supervised release included the following:
(1) “[a]s directed by the probation officer, the defendant shall notify third parties of
risks that may be occasioned by the defendant’s criminal record or personal history
or characteristics, and shall permit the probation officer to make such notifications
and to confirm the defendant’s compliance with such notification requirement”;
(2) “[t]he defendant shall have no direct contact with minors (under the age of 18),
other than his own children, without the written approval of the probation officer
and shall refrain from entering into any area where children frequently congregate,
including: schools, daycare centers, theme parks, playgrounds, etc.”; and (3) “[t]he
defendant shall not possess or use a computer with access to any online service at
any location (including employment) without written approval from the probation
officer. This includes access through any Internet service provider, bulletin board
system, or any public or private computer network system.”
USCA11 Case: 18-10837 Date Filed: 08/04/2021 Page: 4 of 23
5
On July 7, 2017, the district court entered a sealed order concerning
Cordero’s supervised release. The order stated as follows:
In its Memorandum to the [c]ourt,[5] Probation advises that the
Defendant is self-employed as the owner and operator of Cordero
Installation Group (CIG), installing multiple smart home automation
systems, ‘including: security and access control systems, security
cameras with DVD Back-up, whole home audio and video systems.’
Probation is concerned that the Defendant may pose a risk to the
public when he is installing electronic devices in client’s homes where
minor children reside. Probation is requesting that the [c]ourt approve
the enforcement of the condition requiring the offender to disclose
details about the work he performs at private residences and to inform
prospect employers and customers of the Defendant’s sexual offender
status. Probation asserts that it is not able to properly assess and
address any potential third party risks associated with the Defendant’s
employment if it is not allowed to notify a prospective client of the
Defendant’s sexual offender status and inquire as to the duties that the
Defendant may perform at the prospective job site.
The Defendant objects to Probation notifying prospective
clients of his sexual offender status contending that he is well known
in the community and his business may suffer a significant loss. The
5 There is no copy of this memorandum the district court references in the record.
Nevertheless, Cordero does not dispute the government’s assertion that, in 2017, Cordero asked
his probation officer for permission to travel to California to install a smart-home system in the
home of an unnamed celebrity. The celebrity had agreed to allow him to lodge at the celebrity’s
home during the installation. Because the celebrity had minor children in the home, the
probation officer refused to authorize the trip unless he spoke with the celebrity. Cordero
declined the job and asked his probation officer not to contact any of Cordero’s clients because
knowledge of his sex-offender status could harm his business. A few weeks later, Cordero
reported that he was installing home automation systems primarily in houses under construction;
that he was transitioning to commercial businesses; that he did not personally install any
surveillance cameras inside the homes or any system that required the internet and he did not
work alone during any installations. He requested again that probation not contact any of his
clients because of the negative impact his status could have on his business. Cordero’s request
prompted the probation officer to file a memorandum with the court advising that in order to
assess Cordero’s potential risks to any third parties, per the conditions of Cordero’s term of
supervised release, probation needed Cordero to disclose details about the work he was
performing.
USCA11 Case: 18-10837 Date Filed: 08/04/2021 Page: 5 of 23
6
Defendant contends that he is very mindful of his sexual offender
status. He is transitioning from residential to commercial properties
and asserts that most of his installations are in new construction
homes that are not yet occupied.
Upon consideration of the foregoing, the Court concurs with
Probation’s request. Probation has no other means to verify the
Defendant’s employment activities to ensure compliance with terms
and conditions of his supervised release. Furthermore, the need to
protect the public outweighs the Defendant’s potential business loss.
The Court reminds the Defendant that as part of his sentence he was
ordered to comply with all terms of his supervised release including
Condition Number 13 of the Standard Conditions, which states: ‘as
directed by the probation officer, the defendant shall notify third
parties of risks that may be occasioned by the defendant’s criminal
record or personal history or characteristics, and shall permit the
probation officer to make such notifications and to confirm the
defendant’s compliance with such notification requirement.’
Accordingly, it is ORDERED that Probation’s request to
enforce the condition requiring the offender to disclose details about
the work he performs at private residences and to inform prospect
employers of the Defendant’s sexual offender status is GRANTED.
Moreover, the Court directs that Probation shall likewise obtain
information and make disclosures in connection with commercial
businesses in which the Defendant may come into contact with minor
children or may install devices with the capacity to monitor and
conduct surveillance of minor children (i.e. nursery schools, churches,
amusement facilities etc.).
Approximately a week after the district court entered the sealed order,
Cordero filed a pro se “Motion for Clarification” of his supervised release
conditions. Cordero did not mention the sealed order. Instead, Cordero asserted
that his probation officer had expressed concern that: (1) Cordero could come into
contact with minors in homes while he was installing home automation systems;
USCA11 Case: 18-10837 Date Filed: 08/04/2021 Page: 6 of 23
7
and (2) Cordero’s safety could be a risk in the event a client discovered that
Cordero was a sex offender while inside the client’s home. Cordero stated that he
told his probation officer that neither of those scenarios had ever occurred, but that
the probation officer stated that he would be informing the district court of his
concerns and would also be requesting that the terms of Cordero’s supervised
release be modified to include a condition that Cordero be subject to polygraph
examinations as a means to monitor his compliance with the restriction that he not
have direct contact with minor children. Cordero indicated that he was concerned
that probation’s efforts to enforce restrictions or add additional conditions to his
term of supervised release would disrupt his employment and reduce his sole
source of income for supporting his family. He asserted that, under Supreme Court
precedent, even a casual or chance contact with minors while engaging in his
occupation was not sufficient evidence of a violation of the terms of his supervised
release, and that his occupation should not be restricted. He also objected to the
addition of a polygraph condition.
Prior to the district court ruling on the motion for clarification, Cordero filed
a pro se motion seeking early termination of his supervised release under 18
U.S.C. § 3583(e)(1). He stated that the 18 U.S.C. § 3553(a) factors supported his
request because: (1) he did not produce or distribute child pornography and
accepted responsibility for his actions; (2) the offense occurred in 2006, which was
USCA11 Case: 18-10837 Date Filed: 08/04/2021 Page: 7 of 23
8
the same year that he discovered that his wife was cheating on him while he was
away serving in the military and was a “stressful and psychologically debilitating”
time for him; (3) he had no criminal history and had performed exemplary military
service; (4) he had since remarried and was employed, provided for his children,
and was well-respected in his community; (5) the significant permanent
consequences that flowed from his conviction and his sex offender status were
adequate to deter him from future criminal conduct; (6) he did not pose a
recidivism risk; (7) he had completed two sex offender treatment programs; (8) his
offense fell “outside the heartland” of the average child pornography case;
(9) there were no identifiable victims in his case; (10) he had complied with the
terms and conditions of his supervised release without incident or violation for
over 40 months; and (11) he scored a zero on Probation’s “Risk Prediction Index.”
In support of his motion, Cordero attached several excerpts from cases in which
other district courts had granted defendants early termination of their supervised
release on allegedly similar grounds.
Along with the motion for early termination of his supervised release,
Cordero filed a pro se motion to modify the conditions of his supervised release
under 18 U.S.C. § 3583(e)(2), asserting that the relevant § 3553(a) factors
supported the elimination of the internet access restriction. He argued that the
condition limiting his internet access was “a greater deprivation of liberty than is
USCA11 Case: 18-10837 Date Filed: 08/04/2021 Page: 8 of 23
9
reasonably necessary” to achieve the purposes of § 3553(a) and violated his First
Amendment rights, citing Packingham v. North Carolina, 137 S. Ct. 1730 (2017).
The government opposed all three motions, and Cordero’s probation officer
expressly opposed the motion for early termination of supervised release. The
district court entered a paperless order denying the motions after noting that it had
“considered the motions, the Government’s responses in opposition thereto, and
that it [was] otherwise fully advised.”
Cordero appeals the entry of the July 2017 sealed order and the order
denying his motions for clarification, early termination, and modification of his
supervised release term.
6
He argues that the district court abused its discretion
(1) in various ways when it entered the July 2017 sealed order; (2) when it denied
the motion to modify the conditions of his supervised release; and (3) when it
denied the motion for early termination.7 We address each of his arguments in
turn.
6 The government affirmatively waives any challenge to the timeliness of the appeal of
the sealed order. See United States v. Lopez, 562 F.3d 1309, 1313 (11th Cir. 2009) (holding that
the 14-day filing deadline in Federal Rule of Appellate Procedure 4(b) is a non-jurisdictional,
claims processing rule, which is subject to waiver).
7 We appointed counsel to represent Cordero at oral argument and counsel filed
supplemental briefing and also adopted Cordero’s pro se arguments.
USCA11 Case: 18-10837 Date Filed: 08/04/2021 Page: 9 of 23
10
II. Discussion
A. The July 2017 Sealed Order
Cordero argues that the district court abused its discretion when it entered
the July 2017 sealed order because the order impermissibly modified the
conditions of his supervised release and imposed a new occupational restriction—
by requiring him to disclose information related to work he performs as part of his
security business and to disclose his sex offender status to potential clients.8
Whether the district court’s sealed order constituted a modification of the
conditions of Cordero’s supervised release presents a question of law, which we
review de novo. United States v. Dixon, 901 F.3d 1322, 1346–47 (11th Cir. 2018);
United States v. Futrell, 209 F.3d 1286, 1289 (11th Cir. 2000). We review the
modification of supervised release for an abuse of discretion. See United States v.
Serrapio, 754 F.3d 1312, 1318 (11th Cir. 2014).
8 Cordero also argues for the first time on appeal that the district court plainly erred by
sealing the July 2017 order without making particularized findings as to why secrecy was
necessary. Although the district court failed to articulate any specific findings regarding the
need to seal the order, the only prejudice that Cordero asserts is that the sealing of the order
prevented him from filing a timely appeal of that order. However, because the government
affirmatively waived any challenge to the timeliness of the appeal of the sealed order, Cordero
cannot show that he was prejudiced by the alleged error for purposes of plain error review.
United States v. Clark, 274 F.3d 1325, 1326 (11th Cir. 2001) (“We will find plain error only
where (1) there is an error in the district court’s determination; (2) the error is plain or obvious;
(3) the error affects the defendant’s substantial rights in that it was prejudicial and not harmless;
and (4) the error seriously affects the fairness, integrity, or public reputation of judicial
proceedings.”).
USCA11 Case: 18-10837 Date Filed: 08/04/2021 Page: 10 of 23
11
The district court “may, after considering [certain factors set forth in 18
U.S.C. § 3553(a)] . . .”
modify, reduce, or enlarge the conditions of supervised release, at any
time prior to the expiration or termination of the term of supervised
release, pursuant to the provisions of the Federal Rules of Criminal
Procedure relating to the modification of probation and the provisions
applicable to the initial setting of the terms and conditions of postrelease supervision.
18 U.S.C. § 3583(e)(2). Under the related Federal Rules of Criminal Procedure,
“[b]efore modifying the conditions of probation or supervised release, the court
must hold a hearing, at which the person has the right to counsel and an
opportunity to make a statement and present any information in mitigation.” Fed.
R. Crim. P. 32.1(c)(1). A hearing is not required, however, if: (1) the supervised
releasee “waives the hearing;” or (2) “the relief sought is favorable to the [releasee]
and does not extend the term of probation or of supervised release; and . . . an
attorney for the government has received notice of the relief sought, has had a
reasonable opportunity to object, and has not done so.” Rule 32.1(c)(2).
Cordero maintains that the sealed order impermissibly modified the terms of
his supervised release and effectively imposed a new occupational restriction
without the required evidentiary hearing under Rule 32.1(c) and without the
necessary findings under U.S.S.G. § 5F1.5.9
We disagree.
9 An occupational restriction is a term or condition of supervised release that “prohibit[s]
the defendant from engaging in a specified occupation, business, or profession, or limit[s] the
USCA11 Case: 18-10837 Date Filed: 08/04/2021 Page: 11 of 23
12
The district court’s order made it clear that it was merely enforcing standard
condition #13 of Cordero’s supervised release, which provided that “[a]s directed
by the probation officer, the defendant shall notify third parties of risks that may be
occasioned by the defendant’s criminal record or personal history or
characteristics, and shall permit the probation officer to make such notifications
and to confirm the defendant’s compliance with such notification requirement.”
The district court’s directive in the sealed order that Cordero must disclose details
about the work he performs and notify potential clients—i.e., third parties—of his
“sexual offender status” is entirely consistent with the enforcement of this original
condition of his supervised release and is not a new occupational restriction. See
18 U.S.C. § 3603(3) (authorizing a probation officer to “use all suitable methods,
not inconsistent with the conditions specified by the court, to aid a probationer or a
person on supervised release who is under his supervision, and to bring about
improvements in his conduct and condition”); see also United States v. Ritter, 118
terms on which the defendant may do so.” U.S.S.G. § 5F1.5. An occupational restriction may
be imposed only if the district court determines that (1) there is “a reasonably direct relationship”
between the defendant’s occupation and the conduct relevant to the offense of conviction, and
(2) that the restriction “is reasonably necessary to protect the public because there is a reason to
believe that, absent such restriction, the defendant will continue to engage in unlawful conduct
similar to that for which the defendant was convicted.” U.S.S.G. § 5F1.5(a); see also 18 U.S.C.
§ 3583(d) (providing that the district court has the discretionary authority to impose “as a further
condition of supervised release” “any condition set forth . . . in [§] 3563(b) and any other
condition it considers to be appropriate” in light of certain § 3553(a) factors and provided that
the restriction is consistent with the Sentencing Commission’s policy statements); 18 U.S.C.
§ 3563(b) (authorizing the imposition of occupational restrictions).
USCA11 Case: 18-10837 Date Filed: 08/04/2021 Page: 12 of 23
13
F.3d 502, 506 n.4 (6th Cir. 1997) (noting, albeit in dicta, that “notifying an
employer of a supervisee’s conviction falls within” the standard third-party
notification provision, and “absent a more explicit court order, the probation office
clearly exercises discretion in the decision to require a supervisee to advise an
employer of a conviction”). Because the enforcement of a pre-existing condition
was not a modification of Cordero’s supervised release, an evidentiary hearing was
not required under Rule 32.1(c).
To the extent that Cordero argues that, even if the sealed order did not
modify the conditions of his supervised release, the original third-party notification
condition amounts to an occupational restriction because it encompasses
notifications to prospective employers and is therefore invalid because the district
court failed to make the necessary findings under U.S.S.G. § 5F1.5, his argument
fails. Cordero failed to file a direct appeal challenging the scope of the third-party
notification provision following his 2013 sentencing. See United States v. Zinn,
321 F.3d 1084, 1088 (11th Cir. 2003) (“The district court’s sentence, of which the
conditions of supervised release are a part, is a final judgment immediately
appealable to this Court.”). As the government correctly notes, any appeal of the
original conditions would now be both untimely—more than seven years have
passed since his 2013 judgment and under Rule 4(b) an appeal must be filed within
USCA11 Case: 18-10837 Date Filed: 08/04/2021 Page: 13 of 23
14
14 days of entry of the judgment—and otherwise barred by the sentence-appeal
waiver.
10
Accordingly, because the district court did not add an occupational
restriction or otherwise modify the conditions of Cordero’s supervised release
when it entered the July 2017 sealed order, no evidentiary hearing was required,
and the district court was not required to address the U.S.S.G. § 5F1.5 factors.
Consequently, Cordero is not entitled to relief on this claim.11
10 Cordero argues in his reply brief that any challenge to the scope of the third-party
notification provision was not ripe until the district court extended it to his potential clients, such
that his present appeal is timely. However, this argument is undermined by the cases he cites
because all of those cases challenged the scope of the third-party notification provision on direct
appeal. See, e.g., United States v. Mike, 632 F.3d 686, 698 (10th Cir. 2011); United States v.
Souser, 405 F.3d 1162, 1163 (10th Cir. 2005); United States v. Britt, 332 F.3d 1229, 1232 (9th
Cir. 2003); United States v. Peterson, 248 F.3d 79, 85–86 (2d Cir. 2001).
Regardless, even assuming arguendo that his challenge to the scope of the third-party
notification provision was not ripe until the district court entered the July 2017 order enforcing
the provision, any challenge related to the conditions of his supervised release imposed at his
2013 sentencing is barred by the sentence-appeal waiver. Specifically, Cordero “expressly
waive[d] the right to appeal [his] sentence on any ground . . . except (a) the ground that the
sentence exceeds the defendant’s applicable guidelines range as determined by the Court . . .;
(b) the ground that the sentence exceeds the statutory maximum penalty; or (c) the ground that
the sentence violates the Eighth Amendment to the Constitution[.]” At the change-of-plea
hearing, the magistrate judge reviewed the terms of the appeal waiver and Cordero confirmed
that he understood and that he did not have any questions. Thus, the appeal waiver is valid and
enforceable and bars any challenge to the scope of the original conditions. See United States v.
Boyd, 975 F.3d 1185, 1190 (11th Cir. 2020) (explaining that a sentence-appeal waiver is valid if
the government shows either that “(1) the district court specifically questioned the defendant
concerning the sentence appeal waiver during the [plea] colloquy, or (2) it is manifestly clear
from the record that the defendant otherwise understood the full significance of the waiver.”
(quotation omitted)); see also Zinn, 321 F.3d at 1088 (“The district court’s sentence, of which the
conditions of supervised release are a part, is a final judgment immediately appealable to this
Court.”); United States v. Lonjose, 663 F.3d 1292, 1300 (10th Cir. 2011) (“Supervised release
conditions are set at sentencing as part of the original sentence[] and are encompassed within the
right to appeal under 18 U.S.C. § 3742(a).”).
11 Relatedly, Cordero argues for the first time on appeal that the district court plainly
USCA11 Case: 18-10837 Date Filed: 08/04/2021 Page: 14 of 23
15
B. Denial of motion for modification of the conditions of Cordero’s
supervised release
Cordero argues that the district court abused its discretion in denying his
motion to modify the conditions of his supervised release, which requested the
elimination of the internet access restriction. He maintains that the Supreme
Court’s decision in Packingham supports his request and establishes that the
condition restricting his access to the internet violates his First Amendment rights
and that the district court erred in failing to consider the relevant § 3553(a) factors.
We review the denial of a motion for modification of supervised release for
abuse of discretion. See Serrapio, 754 F.3d at 1318. After considering certain
§ 3553(a) factors, a district court may modify the conditions of supervised release
“at any time prior to the expiration or termination of the term.” 18 U.S.C.
§ 3583(e)(2). The relevant § 3553(a) factors are: (1) the nature and circumstances
of the offense; (2) the defendant’s history and characteristics; (3) the need for
erred when it failed to construe his motion for clarification as a motion for reconsideration of the
July 2017 sealed order. However, there was no basis for treating the motion for clarification as a
motion for reconsideration. The motion did not mention the sealed order. In fact, Cordero
acknowledged in the district court proceedings that, at the time that he filed the motion for
clarification, he was unaware of the sealed order. While pro se pleadings are liberally construed
and federal courts should look beyond the label of the pleadings to determine whether they are
properly characterized, United States v. Stossel, 348 F.3d 1320, 1322 n.2 (11th Cir. 2003), a
court may not “serve as de facto counsel for a party” or rewrite a pleading, GJR Invs., Inc. v.
Cnty. of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998), overruled on other grounds as
recognized in Randall v. Scott, 610 F.3d 701, 709 (11th Cir. 2010). Thus, given the contents of
the motion and Cordero’s lack of knowledge of the sealed order at the time he filed the motion
for clarification, there was no basis for construing the motion for clarification as a motion for
reconsideration of the sealed order.
USCA11 Case: 18-10837 Date Filed: 08/04/2021 Page: 15 of 23
16
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.12 See 18 U.S.C. § 3583(e)
(cross-referencing 18 U.S.C. § 3553(a)(1), (2)(B)–(D), (4)–(7)). “[T]he district
court need not explain each factor’s applicability, nor always explicitly articulate
that it considered the factors.” United States v. Johnson, 877 F.3d 993, 998 (11th
Cir. 2017). Rather, “the court’s order, in light of the record, must indicate that the
court considered the [§ 3553(a)] factors enumerated in the [relevant] provision.”
Id. Thus, when as here, the district court summarily denies a motion, “the record
must clearly imply that the relevant factors were considered—enough so that
meaningful appellate review of the factors’ application can take place, rather than
speculation of whether they were taken into account in the first place.” Id.13
12 “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).
13 Recently, we remanded two cases after concluding that we could not engage in
meaningful appellate review where the district court’s discussion and the record were not
sufficient to reflect that the district court considered the applicable § 3553(a) factors. See, e.g.,
United States v. Cook, 998 F.3d 1180, 1185–86 (11th Cir. 2020); United States v. Stevens, 997
F.3d 1307, 1317–18 (11th Cir. 2020). Here, however, as discussed further in this opinion, we are
able to conduct meaningful appellate review under the facts and circumstances of this case.
USCA11 Case: 18-10837 Date Filed: 08/04/2021 Page: 16 of 23
17
Cordero discussed the § 3553(a) factors at length in his motion to modify the
conditions of his supervised release, arguing that the internet restriction was a
greater deprivation of liberty than is reasonably necessary to achieve the purposes
of § 3553(a) and should be eliminated. In response, the government argued that
the internet restriction “comports with all factors described in [§] 3553(a)” and was
appropriate in light of Cordero’s conviction for a sex offense that involved the use
of the internet. In denying the motion to modify, the district court stated that it had
reviewed Cordero’s motion and the government’s response. Thus, although the
district court did not discuss explicitly the § 3553(a) factors, the record as a whole
supports the conclusion that the district court considered the relevant § 3553(a)
factors when denying the motion to modify. See id.
Furthermore, the § 3553(a) factors supported the existence of an internet
restriction. Cordero was convicted of accessing child pornography via the internet.
The Sentencing Guidelines contain a policy statement specifying that for
individuals convicted of a sex offense—including as here convictions for violating
§ 2252 under Chapter 110 of Title 18 of the United States Code—a special
condition of supervised release “limiting the use of a computer or an interactive
computer service in cases in which the defendant used such items” is
recommended. U.S.S.G. § 5D1.3(d)(7)(B). And, in numerous decisions involving
sex offenses that relied upon a computer, we uniformly have “upheld conditions
USCA11 Case: 18-10837 Date Filed: 08/04/2021 Page: 17 of 23
18
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) (collecting cases). Thus, consideration of the relevant § 3553(a)
factors—including the nature and history of the offense and personal
characteristics of Cordero, the need to protect the public and deter future criminal
activity by Cordero, and the pertinent policy statements of the Sentencing
Commission—all supported the continued existence of an internet restriction as a
condition of Cordero’s supervised release. See id.; see also Tome, 611 F.3d at
1376 (“[W]hile the Sentencing Guidelines recognize that a condition of supervised
release should not unduly restrict a defendant’s liberty, a condition is not invalid
simply because it affects a probationer’s ability to exercise constitutionally
protected rights.” (quotation omitted)).
With regard to Cordero’s argument that the internet restriction should be
eliminated because it was unconstitutional in light of the Supreme Court’s
Packingham decision,14 we join the Second, Fifth, and Ninth Circuits in holding
14 In Packingham, the Supreme Court considered the constitutionality of a North Carolina
statute that made it a felony for any registered sex offender to access various social media
websites that the sex offender knew permitted children to be present as users/members. 137 S.
Ct. 1730, 1733–34, 1737–38 (2017). The Supreme Court held that, even assuming the statute
was only subject to intermediate scrutiny, it was unconstitutional and violated the First
Amendment because it was too broad in its reach. Id. at 1736–38. Additionally, although not an
issue before the Packingham Court, the Court noted that it was also “troubling” that the North
Carolina law applied to sex offenders “who already ha[d] served their sentence and [were] no
longer subject to the supervision of the criminal justice system.” Id. at 1737. Despite holding
that the law violated the First Amendment, the Court cautioned that its opinion “should not be
USCA11 Case: 18-10837 Date Filed: 08/04/2021 Page: 18 of 23
19
that § 3582(e)(2) cannot be used to challenge the legality or constitutionality of
supervised release conditions. See United States v. Lussier, 104 F.3d 32, 34 (2d
Cir. 1997) (holding that the plain language of § 3583(e)(2) indicates illegality is
not a proper ground for modification of a condition of supervised release); United
States v. Hatten, 167 F.3d 884, 886 (5th Cir. 1999) (holding that the district court
did not have jurisdiction to modify condition of supervised release on illegality
grounds); United States v. Gross, 307 F.3d 1043, 1044 (9th Cir. 2002) (holding
that illegality was not a proper ground to modify a supervised release term).
Simply put, § 3583(e)(2) is not a vehicle to collaterally attack the legality of a
defendant’s sentence. Rather, § 3582(e) sets forth the factors a court should
consider in determining whether to modify or terminate a condition of supervised
release and illegality or constitutionality is not one of them. See 18 U.S.C.
§ 3582(e). Arguments concerning the legality or constitutionality of a defendant’s
sentence are reserved properly for direct appeal or a 28 U.S.C. § 2255 motion to
vacate sentence.
Moreover, notwithstanding that Cordero’s § 3582(e)(2) motion was an
improper vehicle for raising his Packingham challenge, we note that our decision
in United States v. Bobal, 981 F.3d 971, 977 (11th Cir. 2020), squarely forecloses
interpreted as barring a State from enacting more specific laws” that were “narrowly tailored [to]
prohibit a sex offender from engaging in conduct that often presages a sexual crime.” Id.
USCA11 Case: 18-10837 Date Filed: 08/04/2021 Page: 19 of 23
20
his claim that the internet restriction is unconstitutional as a matter of law.
Specifically, in Bobal, the defendant argued that the special conditions of his
lifetime term of supervised release that he could “not possess or use a computer
that contains an internal, external or wireless modem without the prior approval of
the Court” and that he could “not possess or use any computer; except that [he]
may, with the prior approval of the Court, use a computer in connection with
authorized employment” were unconstitutional in light of Packingham. Id. at 975.
We disagreed, explaining that Packingham was distinguishable because (1) “the
state law in Packingham restricted sex offenders even after they had completed
their sentences”; (2) “the state law in Packingham applied to all registered sex
offenders, not only those who had used a computer or some other means of
electronic communication to commit their offenses”; and (3) “unlike the state law
in Packingham, Bobal’s computer restriction [was] not a complete bar to the
exercise of [his] First Amendment rights. Instead, it allow[ed] [him] to obtain
court permission to use a computer in connection with employment.” Id. at 977
(quotation omitted). Thus, we concluded that “[n]othing in Packingham
undermines the settled principle that a district court may impose reasonable
conditions that deprive the offender of some freedoms enjoyed by law-abiding
citizens during supervised release.” Id. (quotation omitted).
USCA11 Case: 18-10837 Date Filed: 08/04/2021 Page: 20 of 23
21
Accordingly, the district court did not abuse its discretion in denying
Cordero’s motion to modify the conditions of his supervised release which sought
the elimination of the internet restriction.
C. Denial of the motion for early termination of supervised release
Cordero argues that the district court abused its discretion in denying his
motion for early termination of supervised release by ignoring evidence that
established that he is not at risk for recidivism and failing to consider the § 3553(a)
factors. He maintains that the district court’s failure to give any explanation for its
denial of his motion for early termination effectively denies meaningful appellate
review.
Section 3583(e)(1) provides that the district court:
may, after considering the factors set forth in [§] 3553(a)(1),
(a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7) . . .
terminate a term of supervised release and discharge the defendant
released at any time after the expiration of one year of supervised
release, pursuant to the provisions of the Federal Rules of Criminal
Procedure relating to the modification of probation, if it is satisfied
that such action is warranted by the conduct of the defendant released
and the interest of justice.
18 U.S.C. § 3583(e)(1). “We review a district court’s denial of a motion for early
termination of supervised release [pursuant to § 3583(e)(1)] for an abuse of
discretion.” Johnson, 877 F.3d at 997. As discussed previously, when the district
court summarily denies a motion, “the record must clearly imply that the relevant
factors were considered—enough so that meaningful appellate review of the
USCA11 Case: 18-10837 Date Filed: 08/04/2021 Page: 21 of 23
22
factors’ application can take place, rather than speculation of whether they were
taken into account in the first place.” Id. at 998.
Like Cordero’s motion to modify, his motion for early termination
referenced and discussed the § 3553(a) factors and his recidivism arguments at
length, and he also attached several cases from other district courts that discussed
the applicable standard for motions for early termination. Additionally, the
government made arguments that related to the § 3553(a) factors15 and submitted a
memo from Cordero’s probation officer opposing early termination that discussed
some of the relevant § 3553(a) factors, including “the kinds of sentence and the
sentencing range.” See 18 U.S.C. §§ 3583(e)(1), 3553(a)(2)(4). And as noted
previously, the district court stated in the paperless order that it had reviewed
Cordero’s motion and the government’s response. Thus, as with the motion to
modify, the record establishes that the district court considered the relevant
§ 3553(a) factors and did not abuse its discretion in denying summarily the motion
for early termination. Johnson, 877 F.3d at 998.
Outcome: For these reasons, we conclude the district court did not abuse its discretion
in entering the sealed order or denying Cordero’s other motions, and we affirm.
AFFIRMED
Plaintiff's Experts:
Defendant's Experts:
Comments: