United States of America v. Robert Andrew Faber

Cincinnati, Ohio - Criminal defense lawyer represented defendant with child pornography charges.

In 2010, Faber pled guilty to receiving images of minors engaging in sexually explicit

conduct. The district court sentenced him to prison followed by supervised release. Faber did

not appeal. Several years later, Faber completed his prison term and transitioned to supervised

release. Faber's conditions of release barred him from possessing any sexually explicit images

and from possessing or using any digital devices. Yet when Faber reported to a halfway house,

staff discovered that he had numerous explicit images.

Faber eventually moved into an apartment with Gieszer. Probation officers visited their

apartment and discovered that Faber had committed more violations of his supervised release: he

had a laptop, flash drive, and SD card without permission, and the laptop contained sexually

explicit material. During the visit, Gieszer lied to a probation officer, denying that either he or

Faber had any digital devices in the apartment. Gieszer also tried (unsuccessfully) to hide the

devices. The district court revoked Faber's supervised release and sentenced him to another term

in prison followed by supervised release. As a condition of that second term of supervised

release, Faber "must not have contact or association with Tylyn Gieszer, [except] as directed by

the probation officer.” Faber challenged the condition on appeal, and we affirmed. United

States v. Faber, 718 F. App'x 349, 352 (6th Cir. 2017).

While that appeal remained pending, Faber filed a civil action under 42 U.S.C. § 1983

against his probation officer, alleging that the officer violated his right to religious freedom by

separating him from Gieszer. Faber v. Smith, No. 17-2523, 2018 WL 6918704, at *1 (6th Cir.

June 6, 2018) (order). The district court dismissed the action for failure to state a claim, and we

affirmed. Id. at *3. Undeterred, Faber filed a flurry of motions and suits attacking the nocontact order, including a motion under 28 U.S.C. § 2255 and a second § 1983 suit against

another probation officer. Those efforts failed too. See R. 142; Faber v. Garcia, No. 18-2133,

2019 WL 4844953 (6th Cir. Aug. 28, 2019) (order).

No. 19-1575 United States v. Faber Page 3

In November 2018, the district court again revoked Faber's supervised release because he

communicated with Gieszer by email. The district court sentenced him to imprisonment with

supervised release to follow. The court continued prohibiting Faber from contacting Gieszer.

This time Faber did not appeal, but he later moved to eliminate the no-contact order under

§ 3583(e)(2). He argued that the order violates his rights under the Religious Freedom

Restoration Act (Faber believes that the separation condemns him and Gieszer to the "Wiccan

version of hell”). The district court issued an order denying that motion and two other

outstanding motions. On appeal, Faber challenges only the denial of his motion to remove the

condition prohibiting contact with Gieszer.

II.

As a threshold matter, we must first consider the district court's jurisdiction. See, e.g.,

Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 101–02 (1998). The government argues that

the district court lacked jurisdiction to consider Faber's religious-freedom challenge to his

supervised release condition.

Under § 3583(e)(2), a district court may modify or rescind a condition of supervised

release after considering certain enumerated factors. See 18 U.S.C. § 3583(e), (e)(2). Those

factors include the circumstances of the crime, the characteristics of the defendant, deterrence,

protecting the public, providing the defendant with training and education, and others. See id.

Not included: illegality of the condition. And that's no oversight. Congress enacted

§ 3583(e)(2) as part of the Sentencing Reform Act of 1984. See Pub. L. No. 98-473 § 212, 98

Stat. 1987, 2000 (1984). Before its enactment, a defendant could move the district court to

"correct an illegal sentence at any time.” Fed. R. Crim. P. 35(a) (Rule Applicable to Offenses

Committed Prior to Nov. 1, 1987) (emphasis added). With the Sentencing Reform Act, however,

Congress substantially curtailed district courts' authority to reconsider a sentence's legality,

requiring defendants to move for such relief within just fourteen days. See Fed. R. Crim. P.

35(a). Construing § 3583(e)(2) as allowing district courts to eliminate an allegedly illegal

condition at any time would disregard the plain text of the statute and frustrate Congress's intent

to encourage timely challenges. See United States v. Gross, 307 F.3d 1043, 1044 (9th Cir.

2002).

No. 19-1575 United States v. Faber Page 4

Of course, other legal mechanisms allow defendants to challenge the legality of their

sentences (e.g., direct appeal, § 2255, Rule 35). Indeed, Faber has pressed this religious-freedom

claim once before, and he has generally challenged the no-contact order several times. "Our trial

and appellate procedures are not so unreliable that we may not afford their completed operation

any binding effect beyond the next in a series of endless postconviction collateral attacks.”

United States v. Frady, 456 U.S. 152, 164–65 (1982). Section 3583(e)(2) allows district courts

to adjust supervised release conditions to account for new or unforeseen circumstances. It is not,

however, a duplicate path for postconviction review.

Among our sister circuits that have addressed this issue, virtually all agree. See United

States v. Lussier, 104 F.3d 32, 34 (2d Cir. 1997); United States v. Hatten, 167 F.3d 884, 886 (5th

Cir. 1999); Gross, 307 F.3d at 1044; United States v. McClamma, 676 F. App'x 944, 947–48

(11th Cir. 2017); see also 3 Wright & Miller, Federal Practice and Procedure § 563 (4th ed.).

The Third Circuit ruled similarly, though it recognizes an exception for as-applied constitutional

challenges. See United States v. Roberts, 229 F. App'x 172, 178 (3d Cir. 2007).

The Seventh Circuit alone takes a different view. See United States v. Neal, 810 F.3d

512, 518 (7th Cir. 2016). That court reasoned that only an "explicit statutory directive” would

suffice to preclude a court's consideration of a condition's legality. Id. We must respectfully

disagree. Section 3583(e) enumerates the factors that a district court may consider; we may not

judicially augment that list. That's especially true here, given that Congress enacted

§ 3583(e)(2) as part of a package of legislation designed to streamline sentencing review.

Lussier, 104 F.3d at 37. Adopting the Seventh Circuit's view would amount to resurrecting the

pre-1987 indefinite period for raising legal challenges and applying it only to conditions of

supervised release. We discern no textual grounds for taking that view.

Faber took advantage of several opportunities to challenge the legality of the no-contact

order and bypassed others. This statute, § 3583(e)(2), provides no further avenue for

postconviction relief. The district court thus lacked jurisdiction to entertain Faber's challenge to

the no-contact order's legality.

III.

No. 19-1575 United States v. Faber Page 5

Faber also argues that the district court showed improper prejudice against him because

of his prior conviction, but he fails to make any specific allegations to support that contention.

See Liteky v. United States, 510 U.S. 540, 555 (1994). Faber raises several other matters

unrelated to the district court order that he appeals, including a request that we vacate an earlier

supervised release violation. Because Faber did not raise those issues in the district court, we

will not review them. See Girl Scouts of Middle Tenn., Inc. v. Girl Scouts of the U.S.A., 770 F.3d

414, 427 (6th Cir. 2014)

We vacate the aspect of the district court’s order denying Faber’s motion to eliminate the no-contact order and remand with instructions to enter an order dismissing that motion for lack of jurisdiction