United States of America v. JOSE MIGUEL CORDERO

Atlanta, GA - Criminal defense lawyer represented defendant with a 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

1 Cordero sought unsuccessfully to unseal the July 2017 order in the district court, and he

also appeals the substance of the order in this case. Thus, we discuss the contents of the sealed

order herein.

2 The plea agreement contained a sentence-appeal waiver that provided as follows:

The defendant agrees that this Court has jurisdiction and authority to impose any

sentence up to the statutory maximum and expressly waives the right to appeal

defendant's sentence on any ground, including the ground that the Court erred in

determining the applicable guidelines range pursuant to the United States

Sentencing Guidelines, 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[.]

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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).”

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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.”

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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.

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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;

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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

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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

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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.

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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.”).

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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

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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).

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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

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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

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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.

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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.

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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

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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

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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.

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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).

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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

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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.

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.