USA v. Pio Quinzon

Filing

FILED OPINION (HARRY PREGERSON, RAYMOND C. FISHER and MARSHA S. BERZON) AFFIRMED. Judge: MSB Authoring. FILED AND ENTERED JUDGMENT. [7814123]

Case: 10-50240 07/11/2011 Page: 1 of 16

ID: 7814123 DktEntry: 24-1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
PIO JAMES QUINZON, AKA J.R.,
Defendant-Appellant.





No. 10-50240
D.C. No.
2:09-cr-00903SJO-1
OPINION

Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Argued and Submitted
May 4, 2011—Pasadena, California
Filed July 11, 2011
Before: Harry Pregerson, Raymond C. Fisher, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Berzon

9199

Case: 10-50240 07/11/2011 Page: 2 of 16

9202

ID: 7814123 DktEntry: 24-1

UNITED STATES v. QUINZON

COUNSEL
Sean K. Kennedy, Federal Public Defender, Jonathan D.
Libby (argued), Deputy Federal Public Defender, Los Angeles, California, for the defendant-appellant.
André Birotte, Jr., United States Attorney, Robert E. Dugdale
and Jean-Claude André (argued), Assistant United States
Attorneys, Los Angeles, California, for the plaintiff-appellee.

OPINION
BERZON, Circuit Judge:
Pio James Quinzon was convicted of possession of child
pornography. He now appeals a judgment that includes, as a
condition of supervised release, a requirement that monitoring
technology be installed on his computer-related devices.
I
In July 2009, the United States Secret Service received
information that someone in a residence in Lakewood, Cali-

Case: 10-50240 07/11/2011 Page: 3 of 16

ID: 7814123 DktEntry: 24-1

UNITED STATES v. QUINZON

9203

fornia was downloading child pornography from the Internet,
and so obtained and executed a search warrant of the home.
While doing so, the agents found Quinzon living there and
seized his computer. Quinzon admitted, in an interview conducted during the search, that he had downloaded child pornography using peer-to-peer file sharing programs. A later
search of his computer confirmed there was child pornography on it.
Following the search and his admission, Quinzon pled
guilty to one count of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). Quinzon’s plea agreement included a limited waiver of appeal, in which he agreed,
among other things, not to appeal various conditions of supervised release the district court might choose to impose, provided that the term of supervised release was ten years or
fewer. One of the conditions specified as not subject to appeal
was that “[a]ll computers, computer-related devices, computer
storage media, and peripheral equipment used by defendant
shall be subject to . . . the installation of search and/or monitoring software and/or hardware.”
A presentence report was circulated prior to the sentencing
hearing, but the probation officer’s recommended conditions
of supervised release were transmitted to the court in a separate, confidential letter and not disclosed to the parties. In
Quinzon’s written sentencing position, he noted that the recommendations were confidential and requested that, “[i]f the
Court is considering imposing any special conditions of
supervised release . . . those conditions be disclosed sufficiently in advance of the sentencing to allow a meaningful
opportunity to object to the proposed conditions.” The district
court did not respond to Quinzon’s request.
The sentencing hearing was held in May 2010. During the
hearing, Christopher Dybwad, counsel for Quinzon, acknowledged that the appeal waiver in Quinzon’s plea agreement
listed some possible conditions of supervised release, and he

Case: 10-50240 07/11/2011 Page: 4 of 16

9204

ID: 7814123 DktEntry: 24-1

UNITED STATES v. QUINZON

stated that if the court was contemplating imposing any of
those conditions, he wanted a chance to object to some of
them. Dybwad also raised “objections for the record based on
what [he] underst[oo]d probation to typically recommend in
these cases,” emphasizing, in particular, his concern about
possible “computer-use conditions.” After some back and
forth between counsel and the court, during which Dybwad
was somewhat successful in narrowing certain of the conditions not pertinent to Quinzon’s appeal, the court announced
it was considering “Condition Number 7,” which provided
that “ ‘[t]he defendant shall be subject to the installation of
monitoring software and hardware.’ ”
Dybwad objected to that condition, “because of the availability of something called, ‘filtering software,’ which is a
less restrictive alternative than the monitoring software and
hardware.” The prosecutor responded that filtering software
would be inadequate, because it could be circumvented and
would not track communications sent by Quinzon. Dybwad,
however, disagreed: “The concern raised by monitoring software,” Dybwad insisted, “is if you analogize a computer to a
diary, it’s essentially—it’s allowing someone to see every
aspect of your thoughts and a condition that has been found
in the past to be overbroad and not as narrowly tailored as it
could be given the available software.”
After listening to the parties’ arguments, the court
announced the sentence: 84 months of imprisonment, followed by thirty years of supervised release, during which
Quinzon would be subject to sixteen conditions. Despite Dybwad’s objections, the court imposed the following condition:
“The defendant shall be subject to the installation of monitoring software and hardware. The defendant shall pay the cost
of the computer monitoring, in an amount not to exceed $30
per month per device connected to the internet.”
Quinzon, who is not scheduled to be released from custody
until January 1, 2016, appealed. As the conditions of super-

Case: 10-50240 07/11/2011 Page: 5 of 16

ID: 7814123 DktEntry: 24-1

UNITED STATES v. QUINZON

9205

vised release apply for thirty years rather than ten, the appeal
waiver in the plea agreement is not applicable.
II
We first reject Quinzon’s argument that his conditions of
supervised release should be vacated because he was not
afforded adequate notice that the district court was considering imposing them.
Federal Rule of Criminal Procedure 32(i)(1)(C) requires
district courts at sentencing to “allow the parties’ attorneys to
comment on the probation officer’s determinations and other
matters relating to an appropriate sentence.” Rule
32(i)(4)(A)(i), in turn, requires courts, before imposing sentence, to “provide the defendant’s attorney an opportunity to
speak on the defendant’s behalf.”
[1] We held in United States v. Wise, 391 F.3d 1027 (9th
Cir. 2004), that Rule 32 also provides defendants the right to
receive notice that a condition of supervised release “not on
the list of mandatory or discretionary conditions in the sentencing guidelines” is under consideration before it may be
imposed. Id. at 1033. The defendant in Wise had been convicted of lying to the federal government by attempting to
obtain a Social Security number under false pretenses. Id. at
1028-29. As a condition of her supervised release, Wise lost
custody of her son and was prohibited from having contact
with him without prior approval from the Probation Office
and from the state office that provided for dependent children.
Id. at 1030-31. That condition was surprising, not only
because it was unrelated to the crime of conviction, but also
because (1) the condition was not recommended in the presentence report; (2) the judge did not announce before imposing sentence that he was contemplating it; (3) the U.S.
Sentencing Guidelines Manual made no mention of such a
condition; (4) and “nothing else in the record suggested the
condition as a possibility before it was imposed.” Id. at 1032-

Case: 10-50240 07/11/2011 Page: 6 of 16

9206

ID: 7814123 DktEntry: 24-1

UNITED STATES v. QUINZON

33. Without notice of the custody condition, Wise’s attorney
made no arguments against it before imposition of sentence.
Id.
Given the circumstances, and in light of then-existing
Supreme Court precedent interpreting Rule 32 to require that
courts provide notice before departing from sentencing guidelines ranges, see Burns v. United States, 501 U.S. 129 (1991),
limited by Irizarry v. United States, 553 U.S. 708 (2008), we
vacated Wise’s sentence due to lack of notice.1 391 F.3d at
1033. The notice requirement we articulated is a flexible one:
“The form and timing of notice are left to the discretion of the
district court,” and “[i]t may be enough in many cases for the
1

Rule 32(h), promulgated in 2002, codified the holding in Burns that
notice must be given before a court may “depart” from the applicable sentencing range. See United States v. Evans-Martinez, 530 F.3d 1164, 1169
(9th Cir. 2008). The Supreme Court in Irizarry, however, held that, postUnited States v. Booker, 543 U.S. 220 (2005), Rule 32 no longer requires
a sentencing judge to provide notice before imposing a sentence of imprisonment at “variance” with the Federal Sentencing Guidelines, and that
Rule 32(h) is limited to “departure[s],” which “refers only to nonGuidelines sentences imposed under the framework set out in the Guidelines.” Irizarry, 553 U.S. at 714-15. The government observes that Wise
relied on Burns. It then insists that Burns was later overruled by Irizarry,
and that the holding in Wise was therefore effectively overruled as well.
Both Irizarry and Burns, however, dealt with terms of imprisonment, and
neither addressed conditions of supervised release. See Miller v. Gammie,
335 F.3d 889, 893 (9th Cir. 2003) (en banc) (holding that if “the reasoning
or theory of our prior circuit authority is clearly irreconcilable with the
reasoning or theory of intervening higher authority, a three-judge panel
should consider itself bound by the later and controlling authority, and
should reject the prior circuit opinion as having been effectively overruled”). As Wise dealt with uncontemplated conditions of supervised
release, while Irizarry concerned only terms of imprisonment within the
statutory maximum, it is not at all clear that there is sufficient incompatibility between the two to satisfy the Miller standard and allow a threejudge panel of this court to overrule Wise. Still, because we reject Quinzon’s claim that he was not afforded adequate notice, we need not, and do
not, address the government’s suggestion concerning the need for notice
before the imposition of conditions of supervised release not listed in the
Guidelines.

Case: 10-50240 07/11/2011 Page: 7 of 16

ID: 7814123 DktEntry: 24-1

UNITED STATES v. QUINZON

9207

judge to mention orally at the sentencing hearing that he is
contemplating a condition, in case either party wishes to comment or request a continuance.” Id.
[2] Given that pragmatic standard, Quinzon received adequate notice that the computer monitoring condition was
under consideration.2 The district court announced at the sentencing hearing that it was considering imposing a monitoring
condition, and both parties had an opportunity at that time to
comment. Dybwad apparently anticipated that the court might
impose computer monitoring, as he presented an argument
regarding its intrusiveness and “point[ed] the court’s attention” to United States v. Lifshitz, 369 F.3d 173 (2d Cir. 2004),
a case raising concerns about computer monitoring
It is no mystery how Dybwad predicted that the condition
might come up: Several cases have approved, in some form,
computer monitoring imposed on defendants convicted of
child pornography offenses, see United States v. Goddard,
537 F.3d 1087, 1090 (9th Cir. 2008); United States v. Rearden, 349 F.3d 608, 620 (9th Cir. 2003), and the condition was
acknowledged as a possibility in Quinzon’s plea agreement.
There may be instances in which the inclusion in a plea agreement of potential conditions of supervised release will not
reasonably put a defendant on notice that they are likely to be
considered by the court. Here, though, the plea agreement
listed only a few conditions, all of which are either included
2
The only substantive challenge Quinzon makes on appeal is to the
breadth of the computer monitoring condition, which we address below.
If he did not receive notice of any other condition of supervised release,
or if he was entitled to and did not receive specific notice that he would
be obligated to pay the cost of computer monitoring, it was harmless error,
as he has not explained how any such error affected his substantial rights.
See Fed. R. Crim. P. 52(a) (“Any error, defect, irregularity, or variance
that does not affect substantial rights must be disregarded.”); cf. United
States v. Mack, 200 F.3d 653, 657 (9th Cir. 2000) (applying harmless error
analysis when considering whether defendants were denied their Rule 32
right to allocution).

Case: 10-50240 07/11/2011 Page: 8 of 16

9208

ID: 7814123 DktEntry: 24-1

UNITED STATES v. QUINZON

in the Sentencing Guidelines Manual or are often imposed in
child pornography cases.
[3] True, the court in Wise indicated that “advance written
notice would work best” in certain cases. 391 F.3d at 1033.
For instance, such notice was required in Wise itself, because
the defendant could not have predicted that she would lose
custody of and contact with her own child absent approval by
the Probation Office and a state office. But for run-of-the-mill
cases, Wise indicated that raising a condition during a sentencing hearing would likely be sufficient. Id. As Quinzon’s
attorney reasonably could—and did—predict that the condition would be imposed, and given that the district court did
raise the condition at the hearing before imposing the sentence and listened to objections to the condition, Quinzon was
afforded adequate notice.3
Having determined that Quinzon’s procedural rights were
not violated, we turn to his substantive challenge to the computer monitoring condition.
III
District courts have significant discretion in crafting conditions of supervised release pursuant to 18 U.S.C. § 3583(d).
See, e.g., Goddard, 537 F.3d at 1089. That discretion, however, is not limitless. Courts must ensure that each condition
imposed:
(1) is reasonably related to the factors set forth in
section 3553(a)(1), (a)(2)(B), (a)(2)(C), and
(a)(2)(D);
(2) involves no greater deprivation of liberty than is
3

Quinzon summarily asserts that his due process rights were violated,
because he did not receive notice and a chance to be heard. We deny that
claim for the same reasons we hold his rights under Rule 32 not violated.

Case: 10-50240 07/11/2011 Page: 9 of 16

ID: 7814123 DktEntry: 24-1

UNITED STATES v. QUINZON

9209

reasonably necessary for the purposes set forth in
section 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D); and
(3) is consistent with any pertinent policy statements
issued by the Sentencing Commission pursuant to 28
U.S.C. 994(a).
18 U.S.C. § 3583(d)(1)-(3).
Quinzon claims that the computer monitoring condition
imposed on him occasions a greater deprivation of liberty
than is reasonably necessary, see id. § 3583(d)(2), because the
term “monitoring” is imprecise and encompasses a broad
swath of surveillance methods, some of which would be
unnecessarily intrusive.
[4] Quinzon’s contention finds some support in our case
law and that of the Second Circuit. We have acknowledged
that “monitoring software and/or hardware takes many forms,
with greatly varying degrees of intrusiveness.” United States
v. Sales, 476 F.3d 732, 737-38 (9th Cir. 2007); see Lifshitz,
369 F.3d at 191-92 (surveying methods of monitoring and
finding that “products and techniques currently available
diverge vastly in their breadth, and in their implications for
computer users’ privacy”). Some monitoring software, for
instance, records all computer-based activities, “including
those performed locally without connection to the Internet or
any network—such as . . . word processing activities.” Lifshitz, 369 F.3d at 191. Other monitoring targets only Internetrelated activity, by, for example, “rel[ying] on records from
the Internet Service Provider (‘ISP’), through whom an
account user’s requests for information or e-mails are routed.”
Id. Technologies, moreover, vary within these categories:
“[S]ome software focuses attention upon specific types of
unauthorized materials, whereas other kinds monitor all activities engaged in by the computer user.” Id.
[5] We have no doubt further classifications and descriptions of computer surveillance technology could be made, and

Case: 10-50240 07/11/2011 Page: 10 of 16

9210

ID: 7814123 DktEntry: 24-1

UNITED STATES v. QUINZON

that such explications will evolve as do the pertinent technologies. For now, suffice it to say that the term “monitoring” is
broad, encompassing some methods that are quite intrusive
and therefore, perhaps, problematic. As the Second Circuit
put it in Lifshitz, “[c]onstant inspection of the documents that
[the defendant] creates on his computer might be . . . like
searching his diary or inspecting his closets.” Id. at 191-92.
In United States v. Sales, we were required to address
whether a condition of supervised release employing the
broad term “monitoring,” without qualification, occasioned a
greater deprivation of liberty than reasonably necessary. The
defendant in Sales was convicted of counterfeiting federal
reserve notes. As a condition of his supervised release, he was
subject to the installation of “monitoring software and/or
hardware.” 476 F.3d at 734. We recognized that “[a] computer monitoring condition in some form may be reasonable,”
id. at 737, but because the condition at issue gave “no indication as to what kinds or degrees of monitoring [were] authorized,” we vacated it and remanded for further clarification.
See id. at 737-38. Quinzon urges us to do the same here.
In response, the government relies on Rearden, 349 F.3d
608 and Goddard, 537 F.3d 1087, maintaining that they
approve broad computer monitoring conditions without further specification. Were that so, there might well be a conflict
between those two cases and Sales requiring en banc consideration to resolve. See Atonio v. Wards Cove Packing Co.,
Inc., 810 F.2d 1477, 1478-79 (9th Cir. 1987) (en banc) (holding “that the appropriate mechanism for resolving an irreconcilable conflict is an en banc decision”). But in fact there is
no such conflict, as Rearden and Goddard did not address the
issue decided in Sales.
At issue in Rearden, decided four years prior to Sales, was
a condition subjecting all of a defendant’s “computer related
devices” to “the installation of search and/or monitoring software and/or hardware.” 349 F.3d at 621. We dismissed the

Case: 10-50240 07/11/2011 Page: 11 of 16

ID: 7814123 DktEntry: 24-1

UNITED STATES v. QUINZON

9211

defendant’s argument that the term “computer-related device”
was vague, holding that there was no possibility the term
“would be interpreted beyond the normal accouterments of
one’s personal computer.” Id. We also, as the government
points out, concluded that “[b]eyond this, the condition is
appropriate and serves the purpose of monitoring [the defendant’s] progress under supervision.” Id. (internal citation
omitted).
We did not, however, address how monitoring would be
done, as opposed to what “computer or computer-related
devices” would be monitored. Our passing statement about
the appropriateness of monitoring, therefore, was not a blanket rejection of future challenges to computer monitoring different from the one presented and decided. Cf. United States
v. Esparza, 552 F.3d 1088, 1091 n.4 (9th Cir. 2009) (per
curiam) (acknowledging prior decisions that had approved a
condition similar to the one before the court, but noting those
decisions addressed different challenges to the condition).
Goddard was also a limited decision, confined to issues different from the one raised here. There, we disapproved one
part of a computer monitoring condition, requiring the defendant to obtain prior approval before making any software
modifications. We observed that “[s]oftware on any computer
connected to the Internet changes constantly,” and reasoned
that the defendant could not be expected to contact his probation officer every time an update occurred. 537 F.3d at 1090.
We also cited Rearden for the proposition that “[s]ubjecting
computers and other devices able to access the Internet to
monitoring, search and seizure is critical to preventing [the
defendant] from viewing or obtaining child pornography.” Id.
Like Rearden, Goddard did not discuss what form monitoring
would take, and did not address the argument presented here
and accepted in Sales—that the term “monitoring” is too
vague to assess accurately whether it constitutes a greater
deprivation of liberty than reasonably necessary. Neither case,

Case: 10-50240 07/11/2011 Page: 12 of 16

9212

ID: 7814123 DktEntry: 24-1

UNITED STATES v. QUINZON

therefore, approved monitoring in all its forms, and, accordingly, neither forecloses Quinzon’s challenge.
[6] Nonetheless, despite the range of methods encompassed within the umbrella of computer monitoring, and recognizing that our case law does not preclude challenges to the
breadth of monitoring conditions, we decline to remand for
clarification of the condition at issue here as we did in Sales.
Importantly, Quinzon’s condition “does not have to be read as
broadly as [he] suggests it might be read.” Goddard, 537 F.3d
at 1091. Unlike the monitoring condition we vacated and
remanded for clarification in Sales, Quinzon’s condition provides he “shall pay the cost of the computer monitoring, in an
amount not to exceed $30 per month per device connected to
the internet.” (emphasis added). We take the limitation on
Quinzon’s payment responsibilities to indicate the district
court meant to target only his Internet-related computer conduct; computer activities not related to the Internet are not to
be monitored.
Such an interpretation may not be self-evident, but it is
more than reasonable in the context of Quinzon’s crime of
conviction and other computer-related conditions. First, monitoring only Internet-related activities “comports with the district court’s overall intention” of preventing Quinzon from
accessing and sharing child pornography. Goddard, 537 F.3d
at 1090-91 (avoiding a potential overbreadth problem by construing a condition that the “defendant shall use computers/devices only within the scope of his employment” to mean
that “at work, [the defendant] shall use computers and
computer-related devices only within the scope of his employment”). There is no reason to think surveillance of Quinzon’s
local use of, for instance, word processing or financial management software would deter future offenses.
Second, the text and substance of Quinzon’s other conditions also support our reading. Condition 5, for example,
requires Quinzon to disclose to the probation officer all

Case: 10-50240 07/11/2011 Page: 13 of 16

ID: 7814123 DktEntry: 24-1

UNITED STATES v. QUINZON

9213

“[c]omputers and computer-related devices . . . that can
access, or can be modified to access, the internet, electronic
bulletin boards, and other computers.” Condition 6, similarly,
subjects to search and seizure “[a]ll computers, computerrelated devices and their peripheral equipment used by” Quinzon. In contrast to these conditions, the monitoring condition
is more narrowly tailored: It speaks only of devices “connected to the internet,” not of “[a]ll computers,” or even computers “that can access, or can be modified to access, the
internet.” To the extent Quinzon could engage in prohibited
conduct using hardware or software not related to the Internet
—for instance, storing child pornography obtained directly
from a camera, external hard drive, or computer disk—such
conduct already is encompassed within the condition subjecting his computers to search and seizure.
[7] So construed, it was not an abuse of discretion for the
district court to determine that monitoring Quinzon’s Internetrelated activities “involves no greater deprivation of liberty
than is reasonably necessary” under 18 U.S.C. § 3583(d)(2).
Some of the monitoring programs Quinzon fears would be
overly intrusive could not be used. For example, technology
that records all computer activity, such as programs Quinzon
tells us take a snapshot of computer use as frequently as once
per second, would be inconsistent with the condition, as they
would capture non-Internet related conduct. Cf. Lifshitz, 369
F.3d at 193 n.11 (suggesting as a way to tailor a monitoring
condition that it be limited to “Internet-related activity and email”).
Additionally, unlike the defendant in Sales, who was convicted of an offense that “in no way involved or relied upon
the internet,” 476 F.3d at 736, Quinzon admitted to using the
Internet to search for and download child pornography. Given
that admission and “the ‘strong link between child pornography and the Internet,’ ” id. at 736 n.2 (quoting Rearden, 349
F.3d at 621), Quinzon’s condition, even if interpreted to
encompass techniques that might have been inappropriate in

Case: 10-50240 07/11/2011 Page: 14 of 16

9214

ID: 7814123 DktEntry: 24-1

UNITED STATES v. QUINZON

the case of the counterfeiter in Sales, is not overbroad applied
to him. It is not obviously more intrusive than conditions we
have found permissible in other child pornography cases. See
Goddard, 537 F.3d at 1089-90 n.2, 1090 n.3 (approving, in
the case of a defendant convicted of a child pornography
offense, conditions (1) permitting “use only [of] those computers and computer-related devices . . . as approved by the
Probation Officer,” and (2) subjecting “[a]ll computers,
computer-related devices, and their peripheral equipment . . .
to search and seizure . . . including unannounced seizure for
the purpose of search”); Rearden, 349 F.3d at 621 (approving
similar conditions).
[8] The district court, moreover, was not required to, nor
could it now, specify precisely what monitoring hardware or
software, or other type of computer surveillance technology,
should be used. Quinzon is not scheduled to be released for
approximately five years, and the monitoring condition is to
be in place for an additional thirty. It would be impossible for
the district court at this point to identify exactly how surveillance of Quinzon’s computer activities should be accomplished, as the pertinent technologies surely will evolve
before Quinzon’s release and during his period of supervision.
Once it determined that Quinzon’s Internet-related computer
activities should be subject to the installation of surveillance
hardware or software, leaving to the probation officer the
details of what technologies should be used was appropriate.
Cf. United States v. Stephens, 424 F.3d 876, 883-84 (9th Cir.
2005) (acknowledging that district courts may delegate to probation officers the task of choosing particular drug or psychological treatment programs).
[9] At the same time, and complementary to that delegation, we interpret the computer monitoring condition as
imposing on the Probation Office and probation officer a continuing obligation to ensure not only the efficacy of the computer surveillance methods used, but also that they remain
reasonably tailored so as not to be unnecessarily intrusive.

Case: 10-50240 07/11/2011 Page: 15 of 16

ID: 7814123 DktEntry: 24-1

UNITED STATES v. QUINZON

9215

Probation officers serve as an “ ‘arm of the court,’ ” United
States v. Bernardine, 237 F.3d 1279, 1283 (11th Cir. 2001)
(quoting United States v. Ruiz, 580 F.2d 177, 178 (5th Cir.
1978)), and act as “liaison[s] between the sentencing court,
which has supervisory power over the defendant’s term of
supervised release, and the defendant, who must comply with
the conditions of his supervised release.” United States v.
Davis, 151 F.3d 1304, 1306 (10th Cir. 1998); see also Stephens, 424 F.3d at 880-81 & n.2. It is difficult for the district
court to wade into the details of how best to monitor Quinzon’s Internet activities; the Probation Office and probation
officer play an invaluable role by doing so in the first
instance. Because the substance of the computer monitoring
condition turns on evolving technological considerations,
implicit in the condition is the requirement that the Probation
Office and probation officer take into account and use newly
developed technology that is as or more effective at monitoring prohibited conduct, yet not unnecessarily intrusive. In
other words, the Probation Office and probation officer must
themselves make adjustments as technology evolves so that
the methods used continue to “involve[ ] no greater deprivation of liberty than is reasonably necessary.” 18 U.S.C.
§ 3583(d)(2).
[10] Finally, as new technologies emerge or circumstances
otherwise change, either party is free to request that the court
modify the condition of supervised release. See 18 U.S.C.
§ 3583(e)(2); Fed. R. Crim. P. 32.1(c) & advisory committee’s note to 1979 Addition (acknowledging “conditions
should be subject to modification, for the sentencing court
must be able to respond to changes in the probationer’s circumstances as well as new ideas and methods of rehabilitation”); United States v. Gross, 307 F.3d 1043, 1044 (9th Cir.
2002) (noting that § 3583(e) allows “a sentencing court . . .
to respond to changes in the defendant’s circumstances that
may render a previously imposed condition of release either
too harsh or inappropriately tailored”); United States v. Miller, 205 F.3d 1098, 1101 (9th Cir. 2000) (“ ‘Section 3583(e)

Case: 10-50240 07/11/2011 Page: 16 of 16

9216

ID: 7814123 DktEntry: 24-1

UNITED STATES v. QUINZON

provides the district court with retained authority to revoke,
discharge, or modify terms and conditions of supervised
release . . . in order to account for new or unforeseen circumstances.’ ” (quoting United States v. Lussier, 104 F.3d 32, 36
(2d Cir. 1997) (modification in original))). We agree with the
Second Circuit that changing technology “is an appropriate
factor to authorize a modification of supervised release conditions under Section 3583(e).” United States v. Balon, 384
F.3d 38, 47 (2d Cir. 2004). In situations like this one, where
technological considerations prevent specifying in detail years
in advance how a condition is to be effectuated, district courts
should be flexible in revisiting conditions imposed to ensure
they remain tailored and effective.
With those principles in mind, we affirm Quinzon’s sentence.
AFFIRMED.