In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐2780
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
RALPH SHANNON,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 06‐cr‐179‐bbc — Barbara B. Crabb, Judge.
____________________
ARGUED FEBRUARY 16, 2017 — DECIDED MARCH 20, 2017
____________________
Before FLAUM, MANION, and KANNE, Circuit Judges.
FLAUM, Circuit Judge. Ralph Shannon appeals the imposi‐
tion of a special condition of release following his 2007 con‐
viction for possession of child pornography, 18 U.S.C.
§ 2252(a)(4)(B). Specifically, he argues that Special Condi‐
tion 2—requiring notice to the probation office before using
certain devices—is unconstitutionally vague and that the dis‐
trict court imposed it without adequate explanation. We af‐
firm.
2 No. 15‐2780
I. Background
On April 20, 2007, Shannon pleaded guilty to one count of
possessing child pornography. He had saved over 400 en‐
crypted illicit images of children on his computers. On July
17, the district court sentenced him to forty‐six months’ im‐
prisonment and supervised release for the remainder of his
life. Shannon appealed his sentence, and we affirmed. United
States v. Shannon, 518 F.3d 494, 495–97 (7th Cir. 2008).
On August 20, 2010, Shannon finished his term of impris‐
onment and began supervised release. Since that date, appel‐
lant has participated in several hearings to modify the condi‐
tions of his release. On November 28, 2011, the district court
found that Shannon had violated the terms of those condi‐
tions by possessing a web camera without previously notify‐
ing his probation officer, and sentenced Shannon to twenty‐
eight days of incarceration. Shannon appealed, and we va‐
cated one of the conditions of his supervised release, leaving
the remainder intact. United States v. Shannon, 743 F.3d 496,
503 (7th Cir. 2014).
In April and May 2015, the probation office notified the
district court that appellant had temporarily uninstalled the
monitoring software on his computer, viewed legal adult por‐
nography, encrypted digital files, possessed external storage
devices, and installed “scrubbing” software. As a result of
these reports, the district court conducted a revocation hear‐
ing on July 30, 2015. Though the district court found that
Shannon had indeed used encryption, external storage de‐
vices, and scrubbing software, and found that Shannon was
not particularly compliant with his release conditions, the
court declined to revoke his supervised release.
No. 15‐2780 3
At the July 30 revocation hearing, Shannon objected to his
conditions of supervised release. Accordingly, the court
scheduled a modification hearing for August 5, 2015. The par‐
ties disputed the proper wording of Amended Special Condi‐
tion 2, the purpose of which was to require appellant to give
notice to the probation office before using certain electronic
devices. (On appeal, Shannon does not challenge the imposi‐
tion of any other conditions of supervised release.) Ultimately,
the district court imposed the following condition over Shan‐
non’s objection:
Defendant shall provide the supervising U.S.
probation officer advance notification of any de‐
vices associated with or falling within the gen‐
eral category of information technology (IT)
that produce, manipulate, store, communicate
or disseminate information and that he will use
during the term of supervision. The probation
office is authorized to install any application as
necessary on any such devices owned or oper‐
ated by defendant and shall randomly monitor
those media. Defendant shall consent to and co‐
operate with unannounced examinations of any
technological equipment owned or used by
him, including but not limited to retrieval and
copying of all data from all information technol‐
ogy devices and any internal or external periph‐
erals. The examinations may involve removal of
such equipment for the purpose of conducting
examination.
4 No. 15‐2780
The court reasoned that Special Condition 2 was “related
to the offense of conviction which involves the sexual exploi‐
tation of minors from a computer in [Shannon’s] home and
will protect the public. [Shannon’s] demonstrated non‐com‐
pliance with external storage devices indicates he is at a con‐
tinued risk to reoffend.” The same day, the court entered an
order reflecting the new conditions, including Special Condi‐
tion 2. The order stated that Shannon’s “demonstrated non‐
compliant behavior requires the continuation of his life term
of supervision to protect the public, to promote rehabilitation
and to achieve parity with the terms of supervised release im‐
posed in the cases of similarly situated defendants who, like
defendant, were convicted of offenses involving possession of
hundreds of images of child pornography.” This appeal fol‐
lowed.
II. Discussion
This Court reviews the imposition of an objected‐to condi‐
tion of supervised release for abuse of discretion. United States
v. Armour, 804 F.3d 859, 867 (7th Cir. 2015) (citing United States
v. Kappes, 782 F.3d 828, 844 (7th Cir. 2015)). The constitutional‐
ity of a condition of release is a legal determination that we
review de novo. Cf. United States v. Mosley, 759 F.3d 664, 667
(7th Cir. 2014) (we review de novo constitutional arguments
for revocation of supervised release) (citation omitted). Fi‐
nally, we review de novo whether the district court ade‐
quately explained a chosen condition of supervised release.
See Armour, 804 F.3d at 867–68 (citations omitted); Kappes, 782
F.3d at 864 (citation omitted); United States v. Poulin, 745 F.3d
796, 800 (7th Cir. 2014) (citations omitted).
No. 15‐2780 5
A. Vagueness
A condition of supervised release is unconstitutionally
vague if it would not provide a person of reasonable intelli‐
gence with sufficient notice as to the condition’s requirements.
Armour, 804 F.3d at 868 (quoting United States v. Schave, 186
F.3d 839, 843 (7th Cir. 1999)). Shannon argues that Special
Condition 2, requiring “advance notification of any devices
associated with or falling within the general category of infor‐
mation technology (IT) that produce, manipulate, store, com‐
municate or disseminate information,” is impermissibly
vague because it does not sufficiently explain what devices
trigger the notice requirement. For example, appellant queries
whether he is required to provide advance notification before
purchasing a microwave. However, the scope of the “devices”
that trigger the notification requirement is circumscribed by
the condition’s two limiting clauses. Appellant need not pro‐
vide notice for all devices he might use; rather, he must pro‐
vide notice only for devices that satisfy both qualifying
clauses: (1) The device falls within the general category of in‐
formation technology or is associated with information tech‐
nology, and (2) the device produces, manipulates, stores, com‐
municates, or disseminates information. This limiting lan‐
guage provides adequate notice of the condition’s require‐
ments. And these qualifications clearly exclude things like mi‐
crowaves, which are simply household appliances, not infor‐
mation technology, and which do not deal with information
under any plausible reading of the condition.
Shannon’s concern is further allayed by the nature of the
condition itself. Special Condition 2 is not an outright prohi‐
bition against using “devices.” Rather, it is a notice require‐
6 No. 15‐2780
ment. Thus, if appellant truly is unsure about whether a par‐
ticular device will trigger the notice requirement, he can sat‐
isfy any potential obligation simply by notifying the proba‐
tion office. Shannon is at little risk of suffering from the
vagueness doctrine’s principal concern: unknowingly run‐
ning afoul of a legal requirement.
Shannon next argues that the district court should have
employed his alternative wording for Special Condition 2. At
the modification hearing, appellant advocated for a condition
that required notice for “devices able to obtain, store or trans‐
mit illicit sexual depictions or illicit sexual information.” He
argued that such a condition would be similar to a condition
approved by the Second Circuit in United States v. Balon, 384
F.3d 38 (2d Cir. 2004).1 However, the district court declined to
adopt that language, and appellant provides no authority to
support an argument that the rejected language bears on
whether the condition ultimately adopted is unconstitution‐
ally vague. Rather, courts’ vagueness assessments are
grounded in the language of operative conditions, not in con‐
ditions that have never come into force. Cf. Armour, 804 F.3d
868–70 (assessing the vagueness of the actual conditions of re‐
lease imposed).
Relatedly, Shannon claims that Special Condition 2 is over‐
broad. “[I]mposed conditions ‘cannot involve a greater depri‐
vation of liberty than is reasonably necessary to achieve the
goals of deterrence, incapacitation, and rehabilitation.’”
1 The language Shannon proposed at the hearing was not similar to
the Balon condition. The condition approved in Balon read, “The defendant
must provide … notification of any computer(s), automated service(s), or
connected device(s) that he will use during the term of supervision.” 384
F.3d at 41.
No. 15‐2780 7
United States v. Warren, 843 F.3d 275, 281 (7th Cir. 2016) (quot‐
ing United States v. Goodwin, 717 F.3d 511, 522 (7th Cir. 2013)).
Special Condition 2, which simply requires notifying the pro‐
bation office before using certain devices, is not broader than
is reasonably necessary in light of Shannon’s crime of convic‐
tion, use of computer systems to obtain child pornography,
subsequent use of external storage, and the district court’s
stated concern that Shannon is “at a continued risk to
reoffend.” Such underlying facts justify a condition encom‐
passing a range of devices, and Shannon has not shown that
the condition as written sweeps in more than what is reason‐
ably necessary in these circumstances.
B. Adequate Explanation
Appellant next argues that the district court imposed Spe‐
cial Condition 2 without adequately explaining the need for
that condition. Conditions of release are part of a defendant’s
sentence. United States v. Thompson, 777 F.3d 368, 373 (7th Cir.
2015). It follows that the district court must apply several of
the factors found in 18 U.S.C. § 3553(a) in assessing “the pro‐
priety of any conditions of supervised release that the judge
is thinking of imposing.” Id. (citing United States v. Booker, 543
U.S. 220 (2005)); 18 U.S.C. § 3583(c). The court must provide
an explanation for its decision that shows that it “has given
meaningful consideration to the 3553(a) factors and the par‐
ties’ arguments” in determining the proper sentence. Kappes,
782 F.3d at 864.
After imposing Special Condition 2, the district court
stated that this condition was “related to the offense of con‐
viction which involves the sexual exploitation of minors from
a computer in his home and will protect the public. His
8 No. 15‐2780
demonstrated noncompliance with external storage devices
indicates he’s at a continued risk to reoffend.”
Shannon principally argues that the condition lacks justi‐
fication because it is substantially broader than would be
needed to address the district court’s stated concerns.2 We dis‐
agree. At the time it imposed Special Condition 2, the district
court was aware that Shannon had been convicted for saving
over 400 encrypted images of child pornography. After his re‐
lease from prison, he had continued to use encryption, exter‐
nal storage devices, and scrubbing software, all of which
make tracking his access to illicit images more difficult. The
district court acted reasonably in concluding that Shannon
had “not [been] particularly compliant,” was playing games
with respect to his conditions of supervised release, and was
at risk of reoffending. Such evasive behavior—which the dis‐
trict court referenced during the August 2015 hearing—cou‐
pled with the court’s stated concerns of protecting the public
and preventing misuse of external storage devices, justified
the imposition of the notice condition; and the court ade‐
quately explained its reasons for imposing that condition.3
2 Shannon also argues that Special Condition 2 is unnecessarily broad
compared to his proposed alternatives, and that the difference between
the reaches of the respective conditions lacks justification. He states in his
brief that he “was willing to agree to” language similar to that of the Balon
case. However, the test for sufficient justification does not depend on a
defendant’s willingness to submit to the challenged condition relative to
alternatives. For reasons similar to those mentioned above, the existence
of proposed alternative conditions does not bear on whether the operative
condition was adequately justified.
3 Shannon also briefly argues that “the court inappropriately wanted
to ‘achieve parity among other offenders’ convicted of similar crimes,”
and that such a concern “is not one of the considerations when imposing
No. 15‐2780 9
III. Conclusion
For the foregoing reasons, we AFFIRM the order of the dis‐
trict court.
a condition of supervised release.” On the contrary, the district court was
required to consider “the need to avoid unwarranted sentence disparities
among defendants with similar records who have been found guilty of
similar conduct,” in fashioning Shannon’s conditions of release. 18 U.S.C.
§ 3553(a)(6). The district court’s consideration of parity satisfied that re‐
quirement.