PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4744
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BENJAMIN MCMILLER,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at
Charlotte. Robert J. Conrad, Jr., District Judge. (3:17-cr-00269-RJC-DCK-1)
Argued: January 29, 2020 Decided: March 30, 2020
Before KEENAN, WYNN, and RUSHING, Circuit Judges.
Affirmed in part, vacated in part, and remanded by published opinion. Judge Keenan wrote
the opinion, in which Judge Wynn and Judge Rushing joined.
ARGUED: Ann Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina, for Appellant. Anthony Joseph Enright,
OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for
Appellee. ON BRIEF: Anthony Martinez, Federal Public Defender, Caryn A. Strickland,
Assistant Federal Public Defender, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina, for Appellant. R. Andrew Murray, United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee.
BARBARA MILANO KEENAN, Circuit Judge:
Benjamin McMiller was sentenced to 121 months’ imprisonment and a lifetime term
of supervised release for transporting and possessing child pornography. On appeal,
McMiller argues that the district court erred in two discrete ways at sentencing: (1) by
ordering McMiller to pay special assessments pursuant to the Justice for Victims of
Trafficking Act of 2015, 18 U.S.C. § 3014; and (2) by imposing, without explanation,
special conditions of supervised release banning McMiller for life from accessing the
Internet or operating a social networking account without the approval of his probation
officer.
Upon our review, we affirm the district court’s judgment with respect to the special
assessments. However, we agree with McMiller that the district court plainly erred under
our precedent by failing to explain the computer-related special conditions of supervised
release. We therefore vacate the conditions as procedurally unreasonable, and remand that
portion of McMiller’s sentence back to the district court.
I.
McMiller, an elementary school teacher, was apprehended by investigators after he
“shared” child pornography with another individual using a website called “Omegle.”
After tracing the source of the child pornography to McMiller’s address, investigators
conducted a consensual search of his residence. Although McMiller denied any knowledge
of child pornography and attempted to mislead the investigating officers in various ways,
the officers eventually found an external hard drive concealed within McMiller’s bedding,
2
unlocked it, and discovered 88 images and 54 videos of child pornography. Many of these
images and videos depicted “sadistic and masochistic activity involving prepubescent
children,” including “infants and toddlers.”
McMiller pleaded guilty without a plea agreement to one count of transportation of
child pornography and one count of possession of child pornography, in violation of 18
U.S.C. § 2252A(a)(1) and (a)(5)(B). At sentencing, McMiller initially faced a guideline
range of between 151 and 188 months. However, the district court varied downward two
offense levels to eliminate the enhancement for “use of a computer” set forth in USSG
§ 2G2.2(b)(6), explaining that the use of a computer was “something that is present in every
[child pornography] case.” In contrast to other common enhancements, the district court
determined that McMiller’s use of a computer did not “increase the seriousness of the
offense” he committed, or otherwise “tie into” any sentencing factor to make his case
“more significant than others.”
After the elimination of the computer enhancement, McMiller’s guideline range was
reduced to between 121 and 151 months. Emphasizing the seriousness of McMiller’s
conduct and his initial attempts to conceal the evidence of his crimes, the district court
sentenced McMiller to 121 months’ imprisonment on each count, to be served
concurrently. The court explained that a “sentence of 121 months” was necessary to
account for each of the sentencing factors set forth in 18 U.S.C. § 3553(a). Without
additional explanation, the court also imposed a lifetime term of supervised release, during
which McMiller would be subject to “the standard sex offender conditions of supervised
release that have been adopted by the Court in the Western District of North Carolina.”
3
These “standard sex offender conditions” consist of fifteen special conditions of
supervised release that the Western District of North Carolina has made presumptively
applicable to “any person convicted of a sex offense or child pornography offense, unless
affirmatively omitted by the presiding judge.” Misc. Order No. 3:16-MC-221 at 1
(W.D.N.C. Dec. 8, 2016). Among other restrictions, these conditions prohibit McMiller
from maintaining any social networking account and, more broadly, from possessing or
using any electronic device capable of accessing the Internet without the approval of his
probation officer. The district court did not separately articulate the Internet or social
networking restrictions to McMiller, or otherwise identify any of the specific conditions
contained in the standing order. McMiller did not object to the special conditions or ask
the district court to explain why they were being imposed. 1
Pursuant to the Justice for Victims of Trafficking Act of 2015, the district court also
ordered McMiller to pay two $5,000 special assessments. 18 U.S.C. § 3014(a). Based on
the presentence report (PSR), which included information about McMiller’s education and
future earnings potential, the court found that it was “feasible” for McMiller to pay the
assessments through a combination of immediate payments, contributions through the
Bureau of Prisons Inmate Financial Responsibility Program while incarcerated, and
monthly installments of $50 upon release. McMiller did not object to these rulings, or to
1
Through counsel, McMiller asked the district court to “to allow the probation
officer to modify any special sex offender conditions where appropriate . . . [j]ust to give a
little bit of flexibility as they are somewhat draconian.” In response, the court noted that
the probation office already had that “inherent authority,” but agreed to “put that in the
judgment.” The court did not include any notation of this sort in the judgment.
4
the financial report contained in the PSR, which recommended the approach that the court
adopted.
II.
McMiller advances two issues on appeal. First, McMiller argues that the district
court plainly erred when it determined, based on future earnings potential, that McMiller
could pay special assessments under 18 U.S.C. § 3014. Second, McMiller argues that the
court erred procedurally and substantively when it imposed, without explanation, special
“sex offender conditions” of supervised release severely restricting his access to the
Internet and social networking websites. We address each argument in turn.
A.
We begin with McMiller’s challenge to the special assessments that the district court
imposed pursuant to 18 U.S.C. § 3014. Because McMiller did not object to the special
assessments, we apply plain error review. United States v. Lynn, 592 F.3d 572, 577 (4th
Cir. 2010). To establish plain error, McMiller must show that an error occurred, that it was
plain, and that it affected his substantial rights. United States v. Lockhart, 947 F.3d 187,
191 (4th Cir. 2020) (en banc). Even then, we will exercise our discretion to correct the
error only if it “seriously affects the fairness, integrity or public reputation of judicial
proceedings.” Id. (citation omitted).
Section 3014 mandates $5,000 special assessments for all “non-indigent”
defendants convicted of certain offenses, including child pornography offenses. 18 U.S.C.
§ 3014(a), (a)(3). McMiller argues that the district court plainly erred by ordering the
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assessments without making an explicit finding of “non-indigence” and, alternatively, by
finding that he was “non-indigent” based on his future earnings potential. We disagree.
The district court ordered McMiller to pay assessments under Section 3014 based
on the recommendation of the probation officer, who considered McMiller’s “financial
resources and assets, financial obligations, projected earnings, other income, age,
education, health, dependents, and work history.” Based on that information, particularly
McMiller’s job history and master’s degree, the probation officer concluded that McMiller
likely could find employment while on supervision and, thus, would be able to pay the
assessments. Relying on the recommendation contained in the PSR, the district court
determined that it would be “feasible” for McMiller to pay off the balance of the special
assessments in monthly installments of $50 once he was released from prison. “In light of
the special assessments,” the district court found that McMiller would not be able to pay
interest or additional fines.
The district court’s ruling reflects at least an implicit determination that McMiller
was “non-indigent,” and we conclude that this implicit finding was both adequate under
the circumstances and not plainly erroneous. McMiller made no objection to the financial
report in the PSR or to the imposition of the special assessments, and he affirmatively
emphasized his master’s degree and employment history in seeking a downward variance.
Under these circumstances, the district court did not plainly err in failing to make a more
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explicit finding that McMiller was “non-indigent,” or in determining that it would be
“feasible” for McMiller to pay the assessments while on supervised release. 2
We also hold that the district court properly considered McMiller’s future earnings
potential in imposing the special assessments. The text of Section 3014 requires
assessments to be collected in the same manner as criminal fines, 18 U.S.C. § 3014(f), and
the obligation to pay such fines generally extends 20 years from a defendant’s release from
prison, see §§ 3014(g), 3613(b). Moreover, the Sentencing Guidelines plainly treat a
defendant’s future ability to pay as relevant to the imposition of fines. See
USSG § 5E1.2(a) (directing fines to be imposed unless “the defendant establishes that he
is unable to pay and is not likely to become able to pay any fine” (emphasis added)).
McMiller’s suggestion that the assessments can be ordered only if the defendant can pay
them on the day that the sentence is imposed is inconsistent with these directives.
For these reasons, we agree with our sister circuits that a district court may consider
a defendant’s future earnings potential when determining his ability to pay an assessment
under 18 U.S.C. § 3014(a). See United States v. Shepherd, 922 F.3d 753, 758-59 (6th Cir.
2019); United States v. Graves, 908 F.3d 137, 141 (5th Cir. 2018); United States v. Kelley,
2
We also reject McMiller’s argument that the court’s decision not to impose interest
or fines contradicts its decision to impose the assessments. As the record makes clear, the
district court declined to impose a fine expressly because of the burden already imposed
by the special assessments. Thus, there is no inconsistency in the court’s analysis.
7
861 F.3d 790, 802 (8th Cir. 2017). Therefore, we hold that the district court did not err,
much less err plainly, in ordering McMiller to pay the special assessments. 3
B.
We next consider McMiller’s challenge to the “sex offender conditions of
supervision” imposed by the district court. McMiller seeks to vacate two of the fifteen
conditions, conditions 9 and 13, which prohibit McMiller from owning or using any
electronic device capable of accessing the Internet and from maintaining any social
networking account without prior approval from his probation officer. Because McMiller
did not object to these conditions at the time of his sentencing, we again apply plain error
review. 4 United States v. Price, 777 F.3d 700, 711 (4th Cir. 2015).
The government argues that both special conditions should be affirmed, because the
district court explained the sentence “as a whole” and because the challenged conditions
independently satisfy the requirements of 18 U.S.C. § 3583(d). We disagree, and conclude
that the district court committed procedural error in imposing special conditions 9 and 13.
3
In reaching this conclusion, we note that the district court expressly ordered the
probation officer to “monitor the defendant’s economic circumstances” and “report . . . any
material changes that affect his ability to pay.” Thus, if the court’s evaluation of
McMiller’s future earnings potential proves inaccurate, the court will be well-positioned
to adjust that evaluation.
4
McMiller argues that he preserved his objections to the conditions of supervised
release by seeking a different length of supervised release term, and therefore that the abuse
of discretion standard applies. In support, he cites United States v. Ross, 912 F.3d 740, 746
n.2 (4th Cir. 2019). Because we agree with McMiller that remand is necessary even under
the more stringent standard of plain error review, we need not decide this issue.
8
District courts have a duty to explain the sentences they impose. Gall v. United
States, 552 U.S. 38, 50 (2007). “The appropriateness of brevity or length, conciseness or
detail, when to write, what to say, depends upon the circumstances.” United States v. Blue,
877 F.3d 513, 518 (4th Cir. 2017) (citation omitted). In all cases, however, the explanation
must at least be sufficient “to allow for meaningful appellate review and to promote the
perception of fair sentencing.” Gall, 552 U.S. at 50. Failure to provide such an explanation
constitutes procedural error. United States v. Provance, 944 F.3d 213, 218 (4th Cir. 2019).
As we recently have made clear, a sentencing court’s duty to provide an explanation
for the sentence imposed also requires that the court explain any special conditions of
supervised release. See United States v. Arbaugh, 951 F.3d 167, 178 (4th Cir. 2020) (“Just
as with other parts of a sentence, the district court must adequately explain any special
conditions of supervised release.”); United States v. Ross, 912 F.3d 740, 745-46 (4th Cir.
2019) (“The requirement that the district court adequately explain Ross’s term of
confinement similarly applies to the special conditions of his supervised release.”). This
duty arises from 18 U.S.C. § 3583(d), which requires that special conditions of supervised
release be: (1) “reasonably related” to the statutory goals of deterrence, protection of the
public, and rehabilitation; (2) “no greater [a] deprivation of liberty than is reasonably
necessary” to achieve those statutory goals; and (3) consistent with any relevant policy
statements issued by the Sentencing Commission. Unless a district court explains why
particular special conditions are being imposed, “we have no basis for determining whether
they are reasonably related to the[se] factors.” Arbaugh, 951 F.3d at 178 (quoting United
States v. Armel, 585 F.3d 182, 186 (4th Cir. 2009)).
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The district court did not adhere to these precedents in imposing the special
conditions of supervised release at issue here. Although the court thoughtfully detailed
why it viewed a sentence of 121 months’ imprisonment as appropriate in light of the
various sentencing factors, the court offered no explanation at all for imposing the special
conditions of supervised release. Instead, in summarily ordering McMiller to comply with
the “standard sex offender conditions of supervised release that have been adopted by the
Court in the Western District of North Carolina,” the court appeared to rely on a standing
order imposing such conditions in all cases involving sex offenses within that district.
Moreover, contrary to the government’s suggestion, we cannot glean the district
court’s reasons for imposing the challenged conditions by examining the rationale for the
sentence “as a whole.” The court referred only to a “sentence of 121 months” when
discussing the sentencing factors of Section 3553(a), and made no attempt to link its
explanation for McMiller’s term of confinement with the term or conditions of supervised
release.
Under our precedent, the district court’s failure to give an explanation for the special
conditions of supervised release is reversible plain error. Arbaugh, 951 F.3d at 179; Ross,
912 F.3d at 746. After imposing a lifetime term of supervised release, the district court
had a duty to explain to McMiller “why he faces special conditions that will forever modify
the course of his life.” Ross, 912 F.3d at 746. And, importantly, this duty cannot be
satisfied or circumvented through the adoption of a standing order purporting to impose
special conditions of supervised release across broad categories of cases or defendants. See
United States v. Caravayo, 809 F.3d 269, 276 (5th Cir. 2015) (“[S]pecial conditions must
10
be tailored to the individual defendant and may not be based on boilerplate conditions
imposed as a matter of course in a particular district.”); United States v. Kelly, 625 F.3d
516, 520 (8th Cir. 2010) (“Courts may not impose special conditions categorically on all
individuals convicted of certain offenses.”).
We acknowledge that there may be instances when a special condition is so
unobtrusive, or the reason for it so self-evident and unassailable, that remand will be
unnecessary. See United States v. Olano, 507 U.S. 725, 732 (1993) (instructing courts not
to correct a forfeited error unless the error “seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.” (citation omitted)). Additionally, as with other
aspects of sentencing, the amount of explanation required to permit meaningful appellate
review of supervised release conditions undoubtedly will vary with the nature of the
condition imposed and the circumstances of each case. Blue, 877 F.3d at 518.
This case, however, does not present difficult line-drawing concerns. The Internet
and social networking conditions that McMiller challenges are exacting, were imposed for
the rest of McMiller’s life, and were left wholly unexplained. McMiller’s case is therefore
indistinguishable in all relevant respects from our recent decisions in Arbaugh and Ross,
which involved conditions similar to and less onerous than those challenged by McMiller.
See Arbaugh, 951 F.3d at 178 n.3; Ross, 912 F.3d at 744. In each case, applying plain error
review, we vacated the special conditions, holding that the district court erred procedurally
11
by failing to adequately explain them. See Arbaugh, 951 F.3d at 179; Ross, 912 F.3d at
746. We do not discern any basis for reaching a different outcome here. 5
In accord with our decisions in Arbaugh and Ross, we hold that McMiller’s
challenge to two of the special conditions of his supervised release satisfies the
requirements of plain error review. Olano, 507 U.S. at 731-32. A defendant’s right to
know “why he faces special conditions that will forever modify the course of his life” is
substantial. Ross, 912 F.3d at 746. Consequently, when a court’s explanation for such
special conditions is so lacking that it deprives the defendant of meaningful appellate
review, that error necessarily affects the defendant’s substantial rights. Id.; see also
Arbaugh, 951 F.3d at 178 (“[W]e are not permitted to substitute our assessment of the
record for the district court’s obligation to explain its rationale in the first instance.”).
Finally, because an adequate explanation is also necessary “to promote the perception of
fair sentencing,” Gall, 552 U.S. at 50, we conclude that the absence of such an explanation
“seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.”
Olano, 507 U.S. at 732 (citation omitted).
For these reasons, we conclude that McMiller has met his burden under plain error
review. Accordingly, we vacate special conditions 9 and 13 as procedurally unreasonable
5
The fact that our decisions in Arbaugh and Ross were published after McMiller’s
sentencing does not alter our analysis. For purposes of plain error review, “it is enough
that an error be ‘plain’ at the time of appellate consideration.” Henderson v. United States,
568 U.S. 266, 279 (2013) (citation omitted).
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and remand to the district court for further explanation. 6 We affirm the balance of
McMiller’s sentence.
III.
In sum, we affirm the district court’s judgment in part, reverse in part, and remand
the case to the district court for resentencing with respect to special conditions 9 and 13 of
supervised release.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
6
Because we conclude that the imposition of the challenged special conditions was
procedurally unreasonable, we do not reach the issue of their substantive reasonableness.
United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (“If, and only if, we find the
sentence procedurally reasonable can we consider the substantive reasonableness of the
sentence imposed[.]”) (citation and internal quotation marks omitted).
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