A man who was convicted of using a chatroom in an attempt to entice a 14-year-old boy into having sex with him should not be totally banned from using the internet or possessing electronic communication devices, a federal appeals court has ruled.
The U.S. Court of Appeals for the Third Circuit held that the conditions of Branden Holena’s supervised release from prison were too harsh, and that the sentencing judge had to fashion the terms of Holena’s probation to the threat he posed to society—not a blanket ban.
“As a condition of his supervised release from prison, he may not possess or use computers or other electronic communication devices. Nor may he use the internet without his probation officer’s approval,” Third Circuit Judge Stephanos Bibas wrote in the court’s opinion. “Restricting his internet access is necessary to protect the public. But these restrictions are not tailored to the danger he poses. So we will vacate and remand for resentencing.”
Holena repeatedly visited an online chatroom and tried to coax the boy—actually an undercover federal agent—into having sex with him, according to Bibas. When Holena arrived at the arranged meeting place in a park, he was arrested.
He later pleaded guilty to related charges and was sentenced to 10 years’ imprisonment and a lifetime of supervised release. According to Bibas, after being released from prison, Holena twice violated the terms of his release by updating social media profiles and answering emails without the approval of his probation officer.
He was sentenced to 18 more months in prison and the second time he was released, the judge banned him from the internet. Holena objected, arguing the ban violated his First Amendment rights and also that the terms were contradictory: he cannot “possess and/or use computers … or other electronic communications or data storage devices or media,” but he “must not access the internet except for reasons approved in advance by the probation officer.”
Bibas agreed, asking, “How can he use the internet at all if he may neither possess nor use a computer or electronic communication device?”
The judge also said the conditions were more restrictive than necessary.
“A defendant’s conduct should inform the tailoring of his conditions. For instance, a tax fraudster may be forbidden to open new lines of credit without approval,” Bibas said.
“On this record, we see no justification for stopping Holena from accessing websites where he will probably never encounter a child, like Google Maps or Amazon,” he added. “The same is true for websites where he cannot interact with others or view explicit materials, like Dictionary.com or this court’s website. The district court need not list all the websites that Holena may visit. It would be enough to give the probation office some categories of websites or a guiding principle.”
Neither Holena’s public defender or the U.S. Attorney’s Office for the Middle District of Pennsylvania responded to requests for comment.