United States v. Jonathan Wells

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-10451
Plaintiff-Appellee,
D.C. No.
v. 5:18-cr-00567-
LHK-1
JONATHAN WELLS,
Defendant-Appellant. OPINION

Appeal from the United States District Court
for the Northern District of California
Lucy H. Koh, District Judge, Presiding

Argued and Submitted October 18, 2021
San Francisco, California

Filed March 22, 2022

Before: J. Clifford Wallace, Ronald M. Gould, and
Carlos T. Bea, Circuit Judges.

Opinion by Judge Wallace;
Dissent by Judge Bea
2 UNITED STATES V. WELLS

SUMMARY *

Criminal Law

The panel dismissed in part an appeal from the district
court’s judgment and order imposing sentence and
conditions of supervised release, vacated the judgment in
part, and remanded with instructions to the district court to
clarify a special condition of supervised release to avoid a
constitutional violation.

The panel wrote that because the language of the waiver
of the right to appeal in the plea agreement is unambiguous,
and the defendant knowingly and voluntarily waived the
right to appeal, the panel was obligated to enforce the waiver
and would not exercise the jurisdiction to review the merits
of the appeal unless any exceptions to the appeal waiver
apply.

Explaining that a waiver of the right to appeal does not
bar a defendant from challenging an “illegal sentence,”
which has a very limited and precise meaning in this context,
the panel observed that the defendant does not have any
statutory basis for challenging the terms of his sentence as
illegal. The panel declined to extend the meaning of an
“illegal sentence” to encompass sentences that potentially
violate 18 U.S.C. § 3583(d), which governs imposition of
conditions of supervised release, and 18 U.S.C. § 3553,
which sets forth factors to be considered in imposing a
sentence.

*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 UNITED STATES V. WELLS 3

In light of potential ambiguity in this court’s caselaw
regarding when an appeal-waiver exception based on
constitutional challenges applies or on the scope of the
exception, the panel attempted to clarify. Guided by United
States v. Bibler, 495 F.3d 621 (9th Cir. 2007), and its
progeny, the panel concluded that a waiver of the right to
appeal a sentence does not apply if (1) the defendant raises a
challenge that the sentence violates the Constitution; (2) the
constitutional claim directly challenges the sentence itself;
and (3) the constitutional challenge is not based on any
underlying constitutional right that was expressly and
specifically waived by the appeal waiver as part of a valid
plea agreement. Following that precedent, the panel wrote
that it must address the defendant’s constitutional claims that
directly challenge the terms of his supervised release, where
the defendant waived his general right to appeal “any aspect”
of his sentence but did not expressly waive any specific
constitutional right. Except for the defendant’s
constitutional challenges to the terms of his supervised
release, the panel enforced the waiver and dismissed the
appeal.

The panel addressed on the merits the defendant’s three
constitutional challenges: (1) Special Condition No. 3
(computer ban) is unconstitutionally vague; (2) Special
Condition No. 5 (internet ban) violates his First Amendment
rights; and (3) both conditions are an unconstitutional
delegation of authority because the conditions contain
language that specify that the restrictions are subject to the
approval of the probation officer.

The panel held that Special Condition No. 3, whose
definition of “computer” potentially could be understood to
encompass household objects, is unconstitutionally vague.
The panel wrote that because Special Condition No. 3
4 UNITED STATES V. WELLS

violates a constitutional right, it is an “illegal” sentence and
the waiver in the defendant’s plea agreement does not bar
the appeal. The panel declined to apply the appeal waiver,
and exercised its jurisdiction to consider the issue. Because
the condition is a fortiori unconstitutionally vague on the
merits, the panel vacated and remanded with instructions for
the district court to delineate explicitly that the prohibition
only covers computers and computer-related devices that
can access sexually explicit conduct.

Because the use of the internet was essential and integral
to the offense of conviction, the receipt of child
pornography, the panel rejected the defendant’s First
Amendment challenges to Special Condition No. 5. Because
Special Condition No. 5 does not violate the Constitution, it
is not an “illegal” sentence, and in light of waiver of the right
to appeal, the panel dismissed the defendant’s challenges to
that condition.

As to the defendant’s contention that Special Condition
Nos. 3 and 5 unconstitutionally delegate authority to the
probation officer, which the defendant did not argue in the
district court, the panel wrote that it did not need to reach
this issue because the special conditions are not manifestly
unjust. It concluded that even considering the merits, the
special conditions are not an unconstitutional delegation of
authority.

Dissenting, Judge Bea wrote that this case should be
decided by the court sitting en banc because Bibler, 495 F.3d
621 (holding that an exception to valid appeal waivers exists
if the appellant claims a violation of a constitutional right),
and United States v. Joyce, 357 F.3d 921 (9th Cir. 2004)
(dismissing an appeal based on a valid appeal waiver even
though the defendant claimed his sentence violated his First
 UNITED STATES V. WELLS 5

Amendment rights), both control this case yet are entirely
irreconcilable with one another.

COUNSEL

Leah Spero (argued), Spero Law Office, San Francisco,
California; Mara K. Goldman and Dejan M. Gantar,
Assistant Federal Public Defenders; Steven G. Kalar,
Federal Public Defender; Federal Public Defenders Office,
San Jose, California; for Defendant-Appellant.

Merry Jean Chan (argued), Assistant United States Attorney,
Chief, Appellate Section, Criminal Division; David L.
Anderson, United States Attorney; United States Attorney’s
Office, San Francisco, California; for Plaintiff-Appellee.

OPINION

WALLACE, Circuit Judge:

Appellant Jonathan Wells appeals from the district
court’s judgment and order imposing sentence and
conditions of supervised release. We have jurisdiction under
28 U.S.C. §§ 1291, 3742. We review de novo “[w]hether an
appellant has waived his right to appeal” pursuant to the
terms of a plea agreement, United States v. Joyce, 357 F.3d
921, 922 (9th Cir. 2004), and “[w]hether a supervised release
condition illegally exceeds the permissible statutory penalty
or violates the Constitution,” United States v. Watson,
582 F.3d 974, 981 (9th Cir. 2009). Because Wells has
waived his right to appeal, we refuse to exercise jurisdiction
over his claims–except for his constitutional violation
claims–and we dismiss his appeal. However, we vacate in
6 UNITED STATES V. WELLS

part and remand with instructions to the district court to
clarify Special Condition No. 3 to avoid a constitutional
violation.

I.

On April 28, 2016, police officers executed a search
warrant for Wells’ residence for evidence relating to
possession of child pornography. Wells was subsequently
arrested and interviewed by detectives, and he admitted to
using peer-to-peer (P2P) applications to seek child
pornography by means of keyword search for the past
several years. Wells estimated he had downloaded
approximately 20,000 files of child pornography, which
were stored in various computers and external hard drives.
Officers also found 69 compact discs or digital file discs that
included files of child pornography.

On November 27, 2018, Wells was charged with one
count of receipt of child pornography in violation of
18 U.S.C. § 2252(a)(2), (b)(1). In a written plea agreement
pursuant to Federal Rule of Criminal Procedure
11(c)(1)(A)–(B), Wells pled guilty to the receipt of child
pornography. He was sentenced to 76 months’
imprisonment followed by five years of supervised release.
In addition to the standard conditions of supervised release,
the district court imposed 16 special conditions of supervised
release. In this appeal, Wells challenges Special Condition
Nos. 3 and 5. Special Condition No. 3 bans the possession
and use of any computer without prior approval of the
probation officer and Special Condition No. 5 bans the
access to any internet or on-line computer service without
approval of the probation officer.
 UNITED STATES V. WELLS 7

II.

A.

We first turn to whether Wells knowingly and
voluntarily waived the right to appeal the conditions of his
supervised release. “A defendant’s waiver of his appellate
rights is enforceable if the language of the waiver
encompasses his right to appeal on the grounds raised, and if
the waiver was knowingly and voluntarily made.” Joyce,
357 F.3d at 922–23 (citation omitted). “Plea agreements are
contracts between a defendant and the government,” which
can contain a waiver of a defendant’s right to appeal. Id. at
923 (citation omitted). Since “[p]lea agreements are
contractual by nature and are measured by contract law
standards,” we “enforce the literal terms of the plea
agreement” but generally “construe ambiguities in favor of
the defendant.” United States v. Franco-Lopez, 312 F.3d
984, 989 (9th Cir. 2002) (citations omitted). Thus, when the
language of a plea agreement is clear and “[a]bsent some
miscarriage of justice,” we “will not exercise [the]
jurisdiction to review the merits of [an] appeal if we
conclude that [the defendant] knowingly and voluntarily
waived the right to bring the appeal.” United States v.
Harris, 628 F.3d 1203, 1205 (9th Cir. 2011) (internal
quotation marks and citations omitted).

In this case, the plea agreement language is clear. The
plea agreement states: “I agree to give up my right to appeal
the judgment and all orders of the Court. I also agree to give
up my right to appeal any aspect of my sentence.” Dist. Ct.
Dkt. No. 10 ¶ 4. We have repeatedly held that “any aspect”
of a sentence includes “not only any term of imprisonment,
but also fines and conditions of supervised release.” Joyce,
357 F.3d at 923; see also Watson, 582 F.3d at 986 (“We
determined that the reference to ‘any aspect of the sentence’
8 UNITED STATES V. WELLS

unambiguously encompassed supervised release terms.”).
In addition, the plea agreement expressly acknowledges that
special conditions of supervised release will be part of the
sentence imposed. The plea agreement states that “based on
the nature of the offense, the Court should impose” two
specific special conditions of supervised release, which
require Wells to submit to searches and refrain from
accessing or using any file-sharing P2P network or software.
Dist. Ct. Dkt. No. 10 ¶ 8.

Wells knowingly and voluntarily agreed to the plea
agreement and the waiver to appeal his sentence. The plea
agreement was signed by both Wells and his counsel, which
acknowledges that his “decision to plead guilty is made
voluntarily, and no one coerced or threatened [him] to enter
into this Agreement.” Dist. Ct. Dkt. No. 10 ¶ 19. His
counsel also confirmed that he “fully explained to [Wells]
all the rights that a criminal defendant has and all the terms
of this Agreement,” and that Wells “understands all the
terms of this Agreement and all the rights [he] is giving up
by pleading guilty . . . [and his] decision to plead guilty is
knowing and voluntary.” Id. Moreover, at the sentencing
hearing, the district judge provided Wells with “final
advisement” and stated: “Mr. Wells, there was a plea
agreement in your case, and in paragraph 4 of your plea
agreement, you gave up your right to appeal your conviction,
the judgment, orders of the court, any aspect of your
sentence, including any forfeiture or restitution order.” Dist.
Ct. Dkt. No. 29 at 58:22–59:2. Because the language of the
waiver is unambiguous and Wells knowingly and voluntarily
waived the right to bring the appeal, we are obligated to
enforce the waiver and will not exercise the jurisdiction to
review the merits of the appeal unless any exceptions apply.
See Harris, 628 F.3d at 1205.
 UNITED STATES V. WELLS 9

B.

We next turn to whether any exceptions to the waiver of
the right to appeal apply. Even if a defendant knowingly and
voluntarily waives the right to appeal his sentence, we have
held that “[a] waiver of the right to appeal does not bar a
defendant from challenging an illegal sentence.” Watson,
582 F.3d at 977 (emphasis added). In this context, an “illegal
sentence” has a very limited and precise meaning. We have
defined “illegal sentence” to mean “one not authorized by
the judgment of conviction or in excess of the permissible
statutory penalty for the crime.” United States v. Lo,
839 F.3d 777, 785 (9th Cir. 2016), quoting United States v.
Vences, 169 F.3d 611, 613 (9th Cir. 1999). We have also
held that a sentence is “illegal” if it “violates the
Constitution.” United States v. Torres, 828 F.3d 1113, 1125
(9th Cir. 2016), quoting United States v. Bibler, 495 F.3d
621, 624 (9th Cir. 2007). Thus, an appeal waiver does not
apply to a sentence “if it exceeds the permissible statutory
penalty for the crime or violates the Constitution.” Bibler,
495 F.3d at 624.

In this case, Wells does not have any statutory basis for
challenging the terms of his sentence as illegal. Wells does
not argue that the sentence exceeds the permissible statutory
penalty for the crime. Instead, Wells argues that Special
Condition Nos. 3 and 5 are “illegal” because the conditions
violate 18 U.S.C. § 3583(d), as they are not “reasonably
related to the factors set forth in section 3553(a)(1),
(a)(2)(B), (a)(2)(C), and (a)(2)(D)” and involve “greater
deprivation of liberty than is reasonably necessary for the
purposes set forth in section 3553(a)(2)(B).” Dkt. No. 7 at
14–19. But our definition of “illegal sentence” in the context
of an appeal waiver does not extend so far. Indeed, we have
held that a “district court’s failure to comply with § 3553
10 UNITED STATES V. WELLS

does not make [a defendant’s] sentence ‘illegal.’” Vences,
169 F.3d at 613. We again decline to extend the meaning of
an “illegal sentence” to encompass sentences that potentially
violate section 3583(d), which governs the district court’s
imposition of conditions of supervised release, and section
3553, which sets forth the factors to be considered in
imposing a sentence. Otherwise, a valid appeal waiver as
part of a bargained-for plea agreement would be meaningless
and it would allow defendants to circumvent any plea
agreement and appeal waiver. Accordingly, Wells fails to
challenge the terms of his sentence as “illegal” under any
valid statutory grounds. We decline to overreach and
exercise our jurisdiction to entertain an appeal when the plea
agreement effectively waived the right to appeal his
sentence.

Wells also raises several constitutional challenges to his
sentence. Since Bibler, we have held that an exception to an
appeal waiver applies to sentences that are unlawful or
violate the Constitution. See Bibler, 495 F.3d at 624;
Watson, 582 F.3d at 987; Torres, 828 F.3d at 1125; United
States v. Pollard, 850 F.3d 1038, 1041 (9th Cir. 2017). But
our caselaw has not been entirely clear on when the
exception based on constitutional challenges applies or on
the scope of the exception. In light of the potential
ambiguity in our caselaw, we attempt to clarify the Bibler
rule by addressing our various circuit precedent.

First, in Joyce, we dismissed an appeal for lack of
jurisdiction when the defendant challenged his sentence on
First Amendment grounds. 1 See Joyce, 357 F.3d at 925

1
Although Joyce held that we lack jurisdiction to consider the merits
of a challenge, see Joyce, 357 F.3d at 925, the en banc court in United
States v. Jacobo Castillo subsequently made clear that a plea
 UNITED STATES V. WELLS 11

(holding that because the defendant “validly waived his right
to appeal any aspect of his sentence, including the district
court’s imposition of special conditions of supervised
release, we lack jurisdiction to consider the merits of his
challenge to the computer and Internet use restrictions” on
First Amendment grounds). Our holding in Joyce would
seem to conflict with our language in Bibler stating that an
“appeal waiver will not apply if . . . the sentence violates the
law,” which includes a sentence that “exceeds the
permissible statutory penalty for the crime or violates the
Constitution.” Bibler, 495 F.3d at 624. But Joyce was
decided three years prior to Bibler and did not address the
issue of whether an appeal waiver applies to challenges that
a sentence is unconstitutional. The issue was not raised by
parties and the defendant in Joyce “agree[d] that the appeal
waiver he signed prevents him from challenging the 27-
month term of imprisonment.” Joyce, 357 F.3d at 922.2

agreement’s appeal waiver does not divest our court of jurisdiction to
hear an appeal, see 496 F.3d 947, 957 (9th Cir. 2007). Rather, we
generally apply the appeal waiver’s preclusive effect and choose not to
exercise our jurisdiction. See Castillo, 496 F.3d at 957 (“The preclusive
effect we give to the plea agreement may depend on the nature of the
plea and the circumstances in which it is brought to our attention.”).
Thus, we discuss Joyce in the context of “address[ing] the preclusive
effect to be given the plea agreement, not the jurisdiction of the court.”
Id. at 956.
2
The dissent believes that Joyce necessarily reached the issue of
whether the appeal waiver applies to constitutional challenges to the
sentence. But that is not supported by the record. Again, the issue was
never presented to the Joyce panel, and the defendant in Joyce explicitly
“agrees that the appeal waiver he signed prevents him from challenging
the 27-month term of imprisonment” on First Amendment grounds and
only “argues that the special conditions of release are not part of his
‘sentence.’” Joyce, 357 F.3d at 922. Therefore, the court never
explicitly reached the issue of whether the appeal waiver applied to the
12 UNITED STATES V. WELLS

Rather, the only issue addressed was the argument that “the
special conditions of release are not part of his ‘sentence,’
and thus that the language of his appellate waiver does not
bar this challenge.” Id. Joyce is therefore silent on whether
a constitutional challenge to a sentence survives an appeal
waiver. Indeed, when deciding whether an intervening
higher authority is clearly irreconcilable with our precedent,
we look to “the reasoning and analysis in support of a
holding, rather than the holding alone.” United States v.
Lindsey, 634 F.3d 541, 550 (9th Cir. 2011) (emphasis in
original). In that context, we have reiterated that the only
time a three-judge panel may depart from circuit precedent
is when it is “clearly irreconcilable” with intervening
authority. Lair v. Bullock, 697 F.3d 1200, 1207 (9th Cir.
2012). Considering that Joyce is not even from an
intervening higher authority, it is difficult to say that a
previous decision such as Joyce that is completely silent on
a legal issue is “clearly irreconcilable” with other published
opinions confronting the issue.

Second, the scope of the Bibler exception requires some
clarification. Although “a waiver of appellate rights
generally does not preclude review of a sentence that
violates the Constitution,” we have held that if a defendant
expressly waives a certain constitutional right in the plea
agreement, the waiver will still apply to any challenges
based on that specific constitutional right. Pollard, 850 F.3d
at 1043–44 (declining to address the defendant’s Eighth
Amendment excessive fine claim because the defendant
“specifically waived ‘any claim or defense under the Eighth
Amendment to the United States Constitution, including, but
not limited to, any claim or defense of excessive fine in any

defendant’s constitutional challenges. Nor was it necessary to do so for
the disposition of that case.
 UNITED STATES V. WELLS 13

proceedings concerning the property’”). After all, plea
agreements are bargained-for contracts “measured by
contract law standards” and we “enforce the literal terms of
the plea agreement.” Franco-Lopez, 312 F.3d at 989
(citations omitted).

The Bibler exception, however, clearly carved out
challenges that the sentence is illegal when a plea agreement
waives “all right to appeal the sentence imposed by the
Court.” Bibler, 495 F.3d at 624. This was based on the
rationale that an appeal waiver will not apply if the sentence
subsequently imposed by the court is inherently unlawful. If
exceptions to an appeal waiver include “an appeal where the
sentence imposed is not in accordance with the negotiated
agreement” or an appeal where the sentence is “not
authorized by the judgment of conviction or in excess of the
permissible statutory penalty for the crime,” Lo, 839 F.3d at
785 (citations omitted), an appeal arguing that a sentence
violates the Constitution certainly should also fall under the
general exception that an appeal waiver does not apply to an
unlawful sentence, as the Constitution is the “supreme law
of the land,” Cooper v. Aaron, 358 U.S. 1, 18 (1958).
Consequently, we have stated that the “analogy between plea
agreements and private contracts is imperfect . . . because
the Constitution imposes a floor below which a defendant’s
plea, conviction, and sentencing may not fall.” Torres, 828
F.3d at 1124–25.

Balancing the interest of preventing the district court
from imposing an unlawful sentence with the interest of
enforcing a plea agreement’s explicit language, we interpret
our precedent to limit the Bibler exception to constitutional
challenges involving appeal waivers that waive only a
defendant’s “general right to appeal” and not to any
constitutional challenges based on a constitutional right
14 UNITED STATES V. WELLS

specifically waived by the plea agreement. See, e.g.,
Pollard, 850 F.3d at 1043; cf. Torres, 828 F.3d at 1124
(defendant generally waiving “the right to appeal any
sentence” and “the right to appeal any other aspect of the
conviction or sentence”). Indeed, Bibler stated that “[i]f
defendants intend to preserve a larger subset of their
appellate rights, this must be bargained for in the plea
agreement.” Bibler, 495 F.3d at 624. Similarly, if the
government wishes to exclude a subset of a defendant’s right
to challenge an unconstitutional sentence, it must also be
specifically bargained for in the plea agreement.

Finally, we caution that constitutional challenges to a
sentence surviving an appeal waiver under the Bibler
exception are limited to challenges that the terms of the
sentence itself are unconstitutional. The exception does not
allow any constitutional challenges per se, such as the Sixth
Amendment rights to a speedy and public trial or right to
confront witnesses, which are not challenges that the
sentence is unconstitutional. This is consistent with cases
where we have applied an appeal waiver to constitutional
challenges based under the Sixth Amendment right to a
public trial. Cf. United States v. Shehadeh, 962 F.3d 1096,
1102 (9th Cir. 2020) (affirming the district court’s denial of
the defendant’s motion to withdraw plea agreement because
the defendant’s “plea was knowing and voluntary, [and] the
waiver in his plea agreement bars his remaining claims that
the district court violated his Sixth Amendment right to a
public trial”).

Guided by Bibler and its progeny, we conclude that a
waiver of the right to appeal a sentence does not apply if
(1) the defendant raises a challenge that the sentence violates
the Constitution; (2) the constitutional claim directly
challenges the sentence itself; and (3) the constitutional
 UNITED STATES V. WELLS 15

challenge is not based on any underlying constitutional right
that was expressly and specifically waived by the appeal
waiver as part of a valid plea agreement. 3 Here, Wells brings
several constitutional claims that directly challenge the
terms of his supervised release. Wells waived his general
right to appeal “any aspect” of his sentence but did not
expressly waive any specific constitutional right, such as any
First Amendment challenges. Following our precedent, we
must address the constitutional challenges on the merits.

Except for Wells’ constitutional challenges to the terms
of his supervised release, which are addressed below, we
enforce the appeal waiver and dismiss this appeal.

III.

The only issues that survive the appeal waiver are Wells’
challenges that the special conditions violate a constitutional
right. Specifically, Wells raises three constitutional
challenges: (1) Special Condition No. 3 (computer ban) is
unconstitutionally vague; (2) Special Condition No. 5
(internet ban) violates his First Amendment rights; and

3
The dissent critiques the Bibler rule as problematic and suggests
that it should not be followed. But it is not our role as a panel to decide
whether Bibler and the line of cases that have followed its rule are
incorrect. See Bibler, 495 F.3d at 624; Watson, 582 F.3d at 987; Torres,
828 F.3d at 1125; Pollard, 850 F.3d at 1041. Certainly, if this case is
heard en banc, the en banc court can decide if Bibler and its progeny
should be overturned and adopt a new rule. However, we as a panel are
bound by the prior published decisions of our court. See Oregon Nat.
Desert Ass’n v. U.S. Forest Serv., 550 F.3d 778, 782 (9th Cir. 2008)
(“Typically, we are bound by earlier published decisions of our court”
except for when “circuit precedent may be effectively overruled by
subsequent Supreme Court decisions.”). Unless Bibler is overturned by
the en banc court or by the Supreme Court, we must faithfully apply its
rule to this case.
16 UNITED STATES V. WELLS

(3) both conditions are an unconstitutional delegation of
authority because the conditions contain language that
specify that the restrictions are subject to the approval of the
probation officer.

For the following reasons, we hold that Special
Condition No. 3 is unconstitutionally vague, and we vacate
and remand with instructions for the district court to clarify
the condition. Special Condition No. 5 does not violate a
constitutional right and we dismiss Wells’ challenges to that
condition. For both conditions, the district court’s
imposition of the restrictions subject to the approval of the
probation officer is not an unconstitutional delegation of
authority.

A.

Special Condition No. 3 states: “You must not possess or
use a computer without the prior approval of the probation
officer. ‘Computer’ includes any electronic device capable
of accessing the internet or processing or storing data as
described at 18 U.S.C. § 1030(e)(1) (including cell phones),
and all peripheral devices.” As part of the statute governing
computer fraud crimes, section 1030(e)(1) defines
“computer” as “an electronic, magnetic, optical,
electrochemical, or other high speed data processing device
performing logical, arithmetic, or storage functions, and
includes any data storage facility or communications facility
directly related to or operating in conjunction with such
device, but such term does not include an automated
typewriter or typesetter, a portable hand held calculator, or
other similar device.” 18 U.S.C. § 1030(e)(1).

In a footnote, Wells argues that to the extent Special
Condition No. 3 (computer ban) includes a “reasonableness”
limitation, it is “unconstitutionally vague.” Dkt. No. 7 at 19
 UNITED STATES V. WELLS 17

n.13. Specifically, Wells argues that the condition is
unconstitutionally vague because he “has no way of knowing
which items a probation officer will deem reasonable.” Id.
Unlike Wells’ other arguments that the condition is
overbroad or overly harsh, which would be barred from the
appeal waiver, a challenge that a condition of supervised
release is unconstitutionally vague is rooted in a defendant’s
fundamental right to due process. “A condition of
supervised release violates due process ‘if it either forbids or
requires the doing of an act in terms so vague that men of
common intelligence must necessarily guess at its meaning
and differ as to its application.’” United States v. Evans,
883 F.3d 1154, 1160 (9th Cir. 2018), quoting United States
v. Hugs, 384 F.3d 762, 768 (9th Cir. 2004).

We conclude that Special Condition No. 3 requires
clarification. The definition of “computer” under the
condition potentially could be understood to encompass
common household objects. An “electronic, magnetic,
optical, electrochemical, or other high speed data processing
device performing logical, arithmetic, or storage functions”
can include devices such as smart kitchen appliances that
contain microprocessors, even though such appliances are
not capable of receiving, storing, or otherwise processing
materials of child pornography. To be clear, we do not make
any determination on whether the special condition is
overbroad, as it is an issue that is barred by the waiver.
Certainly, the district court could have simply imposed a
condition that bars the use of any device that uses electricity,
which perhaps would be problematic for other reasons but is
not “unconstitutionally vague.” But the definition for
“computer” without any clarification here can lead to a
situation where “men of common intelligence must
necessarily guess at its meaning and differ as to its
application.” Evans, 883 F.3d at 1160 (citation omitted).
18 UNITED STATES V. WELLS

For instance, one would have to guess whether a digital
watch fits under the definition of computer provided by
section 1030(e)(1). A digital watch would seem to be an
electronic device that performs logical, arithmetic, or storage
functions, as it could store alarm times and other data.
Furthermore, adding to the confusion is the statute’s
exclusion of “automated typewriter or typesetter, a portable
hand held calculator, or other similar device” from the
definition of “computer.” 18 U.S.C. § 1030(e)(1). A digital
watch could also be said to be similar to a calculator or
typewriter as it performs basic time calculations and displays
the time. Unless it is exactly a typewriter or calculator, a
defendant would not be able to tell for certain whether an
electronic device with a microprocessor is considered a
“computer” for the purposes of the special condition.

Moreover, we have previously held, albeit in an
unpublished disposition, that similar special condition
language referencing section 1030(e)(1) is
unconstitutionally vague. 4 Although Peterson has no
precedential value, its reasoning is helpful. In Peterson, we
considered whether a special condition of supervised release
that directs the defendant to not “use or possess any
computer [or] computer-related devices . . . which can
communicate data via modem, dedicated connections or
cellular networks” is unconstitutionally vague. United
States v. Peterson, 776 F. App’x. 533, 534 (9th Cir. 2019).
We determined that the “limiting language referencing

4
A memorandum disposition is not precedential and may not be
cited to the court. See, e.g., United States v. Peterson, 776 F. App’x. 533
(9th Cir. 2019). The quotation from the above memorandum disposition
has been helpful to the panel in considering the issue before us.
However, we have not given it any more consideration than a well-
reasoned law review article.
 UNITED STATES V. WELLS 19

18 U.S.C. § 1030(e)(1) does not provide sufficient
guidance” and is impermissibly vague. Id. There, we
expressed the concern that “references were made to
numerous items which would seemingly fall within the
ambit of the condition, but which a reasonable person might
be unaware – e.g. refrigerators with Internet connectivity,
Fitbit™ watches, etc. Also, for example, all automobiles
manufactured after 2008 are required to be equipped with
computers that can send digital messages concerning the
vehicle’s operations through a ‘controller area network.’” Id.
at 534 n.3 (citation omitted). Thus, we remanded the special
condition “for the district court to explicitly delineate that
the prohibition only covers computers and computer-related
devices that can access” materials with depictions of
sexually explicit conduct involving children, as defined by
18 U.S.C. § 2256(2) or deemed inappropriate by the
probation officer. Id. at 534.

To be sure, a limiting instruction that excludes only
computer devices that are capable of accessing materials of
sexually explicit conduct would also limit the scope of the
special condition. On the other hand, one can also argue that
there are presumably electronic devices that can
communicate data but are not sophisticated enough to
transmit any sexually explicit material. Such devices would
have been banned from the special condition in its current
form but would not be included with a limiting instruction.
Again, we do not base our analysis and determination on
whether the special condition is overly broad or not. We
simply hold that a limiting instruction similar to the one we
required in Peterson would help clarify the meaning of what
devices count as a “computer” for purposes of the special
condition. Such a limiting instruction would clearly indicate
to Wells whether a device is barred or not. For instance, a
digital watch that is only capable of displaying time would
20 UNITED STATES V. WELLS

not be barred but a smartwatch that can send and receive
images, browse the internet, or otherwise access sexually
explicit material would clearly be barred. It would be much
more reasonable to require “men of common intelligence” to
know whether a device is capable of transmitting or storing
a digital file that includes materials depicting sexually
explicit conduct than to decipher the meaning of “computer”
under 18 U.S.C. § 1030(e)(1). Evans, 883 F.3d at 1160
(citation omitted).

Because Special Condition No. 3 violates a
constitutional right, it is an “illegal” sentence and “the
waiver in his plea agreement does not bar this appeal.”
Torres, 828 F.3d at 1125. We decline to apply the appeal
waiver and exercise our jurisdiction to consider this issue. A
fortiori, the condition is unconstitutionally vague on the
merits as well. Therefore, we vacate and remand Special
Condition No. 3 for the district court to delineate explicitly
that the prohibition only covers computers and computer-
related devices that can access sexually explicit conduct.

B.

Special Condition No. 5 states: “You must not access the
Internet or any ‘on-line computer service’ at any location
(including employment) without the prior approval of the
probation officer. ‘On-line services’ include any Internet
service provider, or any other public or private computer
network. As directed by the probation officer, you must warn
your employer of restrictions to your computer use.” Wells
argues that this special condition violates the Constitution
because it unnecessarily restricts his First Amendment
rights.

“While a district court’s discretion to set conditions of
supervised release is broad even when those conditions
 UNITED STATES V. WELLS 21

affect fundamental rights, restrictions infringing upon
fundamental rights are reviewed carefully.” United States v.
Soltero, 510 F.3d 858, 866 (9th Cir. 2007) (internal
quotation marks and citations omitted). To determine
whether conditions of supervised release impermissibly
infringe upon a defendant’s rights, “a reviewing court must
inquire whether the limitation[ ] [is] primarily designed to
affect the rehabilitation of the probationer or insure the
protection of the public.” United States v. Bee, 162 F.3d
1232, 1235 (9th Cir. 1998) (internal quotation marks and
citation omitted). Thus, even if a condition infringes a
defendant’s fundamental right, “[a] restriction on a
defendant’s [constitutional right] is nonetheless valid if it”:

(1) is reasonably related to the goals of
deterrence, protection of the public, and/or
defendant rehabilitation; (2) involves no
greater deprivation of liberty than is
reasonably necessary to achieve these goals;
and (3) is consistent with any pertinent policy
statements issued by the Sentencing
Commission pursuant to 28 U.S.C. § 994(a).

Soltero, 510 F.3d at 866 (internal quotation marks and
citations omitted).

For the following reasons, we reject Wells’ First
Amendment challenges to Special Condition No. 5. The
special condition no doubt infringes on Wells’ right to free
speech by restricting his internet access. 5 But the district

5
To be clear, Wells’ reliance on Packingham v. North Carolina, 137
S. Ct. 1730, 1735 (2017), is misguided. Packingham involved “severe
restrictions on persons who already have served their sentence and are
no longer subject to the supervision of the criminal justice system.” 137
22 UNITED STATES V. WELLS

court imposed the condition for purposes of rehabilitation
and to “insure the protection of the public.” Bee, 162 F.3d
at 1235. Wells was convicted for possession of child
pornography and the sheer volume of the material he
possessed is especially troubling (approximately 20,000
files). Even though internet access clearly enables
individuals to engage in a wide array of protected First
Amendment activity, it is also clearly what enables Wells to
gain access to child pornography. Moreover, Wells not only
used the internet to use P2P applications to obtain child
pornography, but also used search terms related to child
pornography to browse the web and various social media
accounts. At the sentencing hearing, the district court
considered Wells’ objections and imposed the special
condition because “there is a strong link between child
pornography and the internet, and the need to protect the
public, particularly children, from sex offenders; but also to
protect the victims of these child pornography offenses from
being revictimized every time they keep getting these
hundreds and hundreds of victim witness letters saying yet
someone else has viewed your image of you being raped
when you were two years old.”

Indeed, we have repeatedly held that “a defendant’s free
speech rights may be infringed to ‘effectively address [his]
sexual deviance problem.’” United States v. Gnirke,
775 F.3d 1155, 1160 (9th Cir. 2015), quoting United States
v. Rearden, 349 F.3d 608, 619 (9th Cir. 2003). In Rearden,
a defendant challenged a special condition that prohibited
him from “possession or use of a computer with access to
any online service at any location without prior approval of

S. Ct. at 1737. On the other hand, Wells is an individual currently subject
to the supervision of the criminal justice system and specific supervised
release conditions tailored to his conviction and circumstances.
 UNITED STATES V. WELLS 23

the probation officer.” Rearden, 349 F.3d at 620. Although
we recognized “the importance of the Internet for
information and communication,” we held that “limiting [a
defendant’s] Internet access without prior approval of the
Probation Office is reasonably related to the offense that
involved e-mail transmissions of quite graphic child
pornography, and to the important goal of deterring him
during the period of supervision from reverting to similar
conduct, and thus, to rehabilitation and protecting the
public.” Id. at 620–21. To be sure, we have also held that
“because access to the Internet has become so vital, courts
have upheld conditions prohibiting all use of the Internet
only in limited circumstances.” United States v. LaCoste,
821 F.3d 1187, 1191 (9th Cir. 2016). But one of the limited
circumstances that allow for a broad internet restriction is
“when use of the Internet was ‘essential’ or ‘integral’ to the
offense of conviction.” Id.; see also United States v.
Antelope, 395 F.3d 1128, 1142 (9th Cir. 2005) (affirming
conditions of supervised release prohibiting access to any
on-line computer service because “the Internet was
nevertheless essential to the commission of [defendant’s]
crime: He first contacted the federal agents through joining
a child pornography-oriented online group”). Here, the use
of the internet was essential and integral to the offense: the
receipt of child pornography.

Because Special Condition No. 5 does not violate the
Constitution, it is not an “illegal” sentence. In light of Wells’
waiver of the right to appeal, we dismiss this claim. See
Watson, 582 F.3d at 988 (dismissing appeal on waiver
grounds because the “condition of supervised release . . . did
not make [the defendant’s] sentence illegal).
24 UNITED STATES V. WELLS

C.

Finally, both Special Condition Nos. 3 and 5 provide that
the restrictions apply only when it is “without the prior
approval of the probation officer.” Wells challenges that the
district court’s decision to subject restrictions to the approval
of the probation officer is an unconstitutional delegation of
authority. For the following reasons, we reject this
challenge.

Since “[u]nder our constitutional system[,] the right to
. . . impose the punishment provided by law is judicial,” “a
probation officer may not decide the nature or extent of the
punishment imposed upon a probationer.” United States v.
Stephens, 424 F.3d 876, 881 (9th Cir. 2005) (citations
omitted). But once “the court makes the determination of
whether a defendant must abide by a condition, and how . . .
a defendant will be subjected to the condition, it is
permissible to delegate to the probation officer the details of
where and when the condition will be satisfied.” Id. at 880.

The record shows that Wells did not challenge the
special conditions on this basis before the district court. In
his written objections to the proposed special conditions of
supervised release, Wells only argued that the blanket
prohibition on computers and access to the internet was
improper. Nor did he raise this argument at any time during
the sentencing hearing. In general, we do not “review an
issue not raised below unless necessary to prevent manifest
injustice.” Int’l Union of Bricklayers & Allied Craftsman
Loc. Union No. 20, AFL-CIO v. Martin Jaska, Inc., 752 F.2d
1401, 1404 (9th Cir. 1985). Here, we need not do so because
the special conditions are not manifestly unjust.

But even considering the merits of the challenge, the
special conditions are not an unconstitutional delegation of
 UNITED STATES V. WELLS 25

authority to the probation office. When a defendant “did not
raise the issue before the district court, we review for plain
error.” United States v. Yijun Zhou, 838 F.3d 1007, 1010
(9th Cir. 2016) (“The ordinary rule in criminal cases—
established by Federal Rule of Criminal Procedure 52(b) and
by Supreme Court precedent—is that ‘plain error’ review
applies to arguments raised for the first time on appeal. See
Fed. R. Crim. P. 52(b).”). The district court imposed
conditions that Wells may not use any computer or access
the internet (whether it is appropriate to have computer and
internet access) and delegated to the probation office the
implementation of this condition (when it may be
appropriate to allow an exception). Moreover, the added
limitation of requiring prior approval of the probation officer
to Special Conditions Nos. 3 and 5 ensures that the
conditions are no more restrictive than necessary. The
requirement for the approval of the probation officer gives
the flexibility to allow for some exceptions to the total ban
on computers and internet access if the probation office
deems the use safe and without risk of obtaining child
pornography.

Our decision in Blinkinsop is instructive. See United
States v. Blinkinsop, 606 F.3d 1110 (9th Cir. 2010). There,
we vacated a condition requiring the defendant “not go to or
loiter near school yards, parks, play grounds, arcades, or
other paces [sic] primarily used by children under the age
of 18” to allow the district court to consider amending the
provision and allow an exception for school events involving
the defendant’s own children with the “written permission of
his probation officer prior to each such attendance.” Id. at
1119–22. This is because the “probation officer, who has
regular contact with a sex offender on supervised release, . . .
is in the best position to determine the appropriate contact
with minors for a released defendant convicted of a child-
26 UNITED STATES V. WELLS

pornography crime.” Id. at 1121. Similarly, the probation
officer here is in the best position to determine when a use
of computer devices or internet service is appropriate for
Wells. Thus, we have repeatedly followed Blinkinsop and
summarily rejected similar arguments that a district court
abuses its discretion by delegating to the probation office the
implementation of a condition of supervised release. See,
e.g., United States v. Stewart, 671 F. App’x 614 (9th Cir.
2016).

DISMISSED in part; VACATED and REMANDED in
part.

BEA, Circuit Judge, dissenting:

A case controlled by contradictory precedents must be
decided by the court sitting en banc. Atonio Wards Cove
Packing Co., 810 F.2d 1477, 1478–79 (9th Cir. 1987).
United States v. Bibler, 495 F.3d 621 (9th Cir. 2007) and
United States v. Joyce, 357 F.3d 921 (9th Cir. 2004), both
control this case yet are entirely irreconcilable with one
another. Therefore, this case should be decided by the court
sitting en banc, not by a three-judge panel. For this reason, I
respectfully dissent from the majority opinion.

I. Joyce and Bibler are irreconcilable.

In Joyce, our court dismissed an appeal based on a valid
appeal waiver even though the defendant claimed his
sentence violated his First Amendment rights. Joyce, 357
F.3d at 925. In the words of Judge Gould’s dissent in Joyce,
“what a court does is a more important statement of its
holding for stare decisis purposes than what it merely says.”
Id. at 927 (Gould, J., dissenting) (emphasis in original). By
 UNITED STATES V. WELLS 27

dismissing the appeal on the basis of a valid appeal waiver,
even where the appellant claimed a violation of his
constitutional rights, the Joyce panel necessarily held that no
“exception” to the appeal waiver applied because of the
claim that the sentence violated the appellant’s constitutional
rights. Thus, Joyce’s holding stands for the proposition that
a claimed violation of a constitutional right cannot except an
appellant from being bound by his valid appeal waiver.
When confronted with these facts, the court must dismiss the
appeal.

Bibler, which was decided three years after Joyce but
failed to cite it, reached the merits of the appeal, despite the
appellant’s valid appeal waiver, because it held that an
exception to valid appeal waivers exists if the appellant
claims a violation of a constitutional right. Bibler, 495 F.3d
at 624.

“Where a panel confronts an issue germane to the
eventual resolution of the case and resolves it after reasoned
consideration in a published opinion, that ruling becomes the
law of the circuit . . . .” United States v. Johnson, 256 F.3d
895, 914 (9th Cir. 2001) (en banc). The panel is therefore
bound simultaneously by the contradictory precedents of
Joyce and Bibler.

The majority attempts to escape this result by
distinguishing Joyce from Bibler, but its efforts are
unavailing. The only difference between Joyce and Bibler is
that Bibler’s counsel styled the constitutional claim as an
“exception” to the valid appeal waiver instead of challenging
the validity of the appeal waiver directly. But two holdings
are irreconcilable based on their facts and the law, not
whether attorneys in the cases styled their arguments with
different words.
28 UNITED STATES V. WELLS

Essentially, the majority claims that Joyce’s holding is
not binding precedent because the parties in that case did not
argue that the First Amendment challenge created an
exception to the appeal waiver, and therefore Joyce did not
reach the issue. That conclusion is simply incorrect. Joyce
necessarily reached the issue of whether the appeal waiver
was effective when it dismissed the appeal on waiver
grounds. For this reason, Joyce cannot be persuasively
distinguished from Bibler, and this irreconcilable conflict
must be resolved by the en banc court.

II. The en banc court should follow Joyce.

In the event this case is heard en banc, there are good
reasons to follow Joyce over Bibler.

First, the Bibler rule is a chimera. 1 For the proposition
that appeal waivers are not valid to bar challenges to illegal
sentences, Bibler cites to four cases: United States v.
Portillo-Cano, 192 F.3d 1246 (9th Cir. 1999) (holding that
an appeal waiver was not valid because the defendant had
not been given a description of the nature of the charges
against him in violation of Rule 11 of the Federal Rules of
Criminal Procedure), United States v. Buchanan, 59 F.3d
914 (9th Cir. 1995) (holding that an appeal waiver was not
valid because the judge repeatedly told the defendant that he
had the right to appeal his sentence after the defendant had
signed the appeal waiver), United States v. Bolinger, 940
F.2d 478, 479–80 (9th Cir.1991) (holding that an appeal
waiver was valid but recognizing an exception to a valid
1
“A fabled fire-breathing monster of Greek mythology, with a lion’s
head, a goat’s body, and a serpent’s tail,” or “[a]n organism . . . in which
tissues of genetically different constitution co-exist as a result of
grafting, mutation, or some other process.” Chimera, Oxford English
Dictionary Online (2020).
 UNITED STATES V. WELLS 29

appeal waiver where the sentence imposed is not in
accordance with the negotiated plea agreement), and United
States v. Gordon, 393 F.3d 1044 (9th Cir. 2004) (holding that
an appeal waiver was not valid to waive an appeal of a
restitution order which violated a federal statute). Note that
none of these cases involved an appeal of a sentence on
constitutional grounds which rendered the sentence
“illegal.”

For the proposition that a sentence is illegal if it violates
the constitution, Bibler cited to United States v. Fowler, 794
F.2d 1446 (9th Cir. 1986). In Fowler, the district court
ordered the defendant to pay the costs of his prosecution, as
authorized by the statute of conviction, after he was
convicted of three counts of willfully filing false income tax
returns. Id. at 1448. The defendant appealed, arguing that the
imposition of costs was an unconstitutional burden on his
right to cross-examination, jury trial, and compulsory
process. Id. at 1449. The Fowler court held that requiring the
defendant to pay the costs of his prosecution was not
unconstitutional and affirmed the sentence as legal under
Federal Rule of Criminal Procedure 35. 2 Id. at 1450.

Fowler decided whether a sentence was illegal for
purposes of a Rule 35 motion. It did not decide what
constitutes an illegal sentence for the purpose of rendering
an otherwise valid appeal waiver ineffective.

2
When Fowler was decided, Rule 35 allowed a criminal defendant
to move the court to “correct an illegal sentence” or “correct a sentence
imposed in an illegal manner.” Id. at 1449 (internal citations omitted).
However, Rule 35 has since been amended to allow a defendant to move
the district court to correct a defendant’s sentence within fourteen days
if the sentence resulted from “arithmetical, technical, or other clear
error.” Fed. R. Crim. Proc. 35.
30 UNITED STATES V. WELLS

Thus, Bibler combined two distinct lines of cases to
create a hybrid rule that appeal waivers are never valid to bar
appeals of sentences when those appeals are brought on
constitutional grounds.

This rule is problematic for several reasons. There is
nothing about waiving the right to appeal, even on
constitutional grounds, that is entitled to special protections
from this court. Waiver of constitutional rights is a common
occurrence in the criminal law context; every time a
defendant takes the stand in his own defense, he waives his
right not to testify. And “[t]here is, of course, no
constitutional right to an appeal.” Jones v. Barnes, 463 U.S.
745, 751 (1983).

But most importantly, the Bibler rule puts judges in the
awkward position of reaching the merits of an appellant’s
constitutional claims before deciding whether the appeal
should be dismissed on waiver grounds. This backwards
analysis is reflected in the majority’s own opinion and has
the unintended consequence of essentially nullifying all
appeal waivers. Under Bibler, all a defendant must do is
argue, even baselessly, in an appellate brief that his sentence
violates the Constitution, and he can evade what was an
otherwise valid and binding appeal waiver.

Reaching the merits of an appeal before dismissing it
forces judges to answer more questions than necessary to
dispose of a case, which violates the cardinal principle of
judicial restraint that “if it is not necessary to decide more, it
is necessary not to decide more.” PDK Labs. Inc. v. Drug
Enforcement Admin., 362 F.3d 786, 799 (C.A.D.C. 2004)
(Roberts, J., concurring in part and concurring in judgment).

The Bibler rule is also like the two-step qualified
immunity analysis from Saucier v. Katz, 533 U.S. 194
 UNITED STATES V. WELLS 31

(2001), which required courts to determine first whether the
plaintiff alleged a violation of a constitutional right and next
determine whether that right was clearly established, in that
order. The Supreme Court overruled Saucier in Pearson v.
Callahan, 555 U.S. 223, 237 (2009), holding that courts
could answer these two questions in any order. The court so
held because, like the Bibler rule, Saucier “require[d] courts
unnecessarily to decide difficult constitutional questions
when there is available an easier basis for the decision . . . .”
Brosseau v. Haugen, 543 U.S. 194, 201–02 (2004)
(Breyer, J., joined by Scalia and Ginsburg, JJ., concurring).

The majority’s efforts to “clarify” Bibler unfortunately
only muddy the waters. The majority sets forth a new rule
which would limit the scope of the Bibler exception to apply
only in cases where appellants have waived a “general right
to appeal” and not an appeal based on a “specific”
constitutional right. But this is a distinction without a
difference. Prosecutors will easily avoid the majority’s new
rule by incorporating by reference the Constitution and its
amendments in the text of each appeal waiver—or perhaps
they will begin attaching the Bill of Rights as an addendum
to their plea agreements.

If Joyce were the applicable rule in this case, I would
concur in the judgment to the extent that it dismisses Wells’s
appeal. However, because it is not within my authority to
apply Joyce where Bibler’s irreconcilable holding
simultaneously binds the court, I respectfully dissent.