United States Court of Appeals
For the Eighth Circuit
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No. 18-2045
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United States of America
Plaintiff - Appellee
v.
Patrick Burke
Defendant - Appellant
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Appeal from United States District Court
for the District of Nebraska - Lincoln
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Submitted: November 14, 2018
Filed: January 29, 2019
[Unpublished]
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Before BENTON, BEAM, and ERICKSON, Circuit Judges.
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PER CURIAM.
In January 2017, Patrick Burke completed the in-custody term of his sentence
and began a three-year term of supervised release. Slightly over a year later, Burke
admitted to violating a condition of supervised release when he possessed nude
photos of his wife contrary to his probation officer’s instructions. The district court1
revoked Burke’s supervised release and sentenced him to nine months’ imprisonment
to be followed by five years of supervised release. Burke appeals, arguing the court
erred when it (1) applied his supervised release conditions in a manner that violated
his First Amendment rights and (2) imposed a total alcohol ban as a special condition
of supervised release. We affirm.
I. Background
In 2005, Burke pled guilty to an Information charging him with receipt of child
pornography. A Presentence Investigation Report (“PSIR”) was prepared that
included this language: “Burke began using alcohol in his late teens and his parents
forced him into an outpatient substance abuse treatment program.” Another
paragraph in the PSIR provided further information about Burke’s alcohol use:
Mr. Burke indicates he used alcohol for the first time at age 17. He
states he does not use alcohol excessively and that he has not had
periods of excessive alcohol use in the past. His usual frequency of
alcohol use is one to two drinks every two weeks to a month. Mr. Burke
was sent to an outpatient substance abuse treatment program in the late
1980s by his parents. He indicates it was not due to excessive alcohol
use, but because he was drinking and his parents did not want him to do
so at all.
On August 5, 2005, the district court sentenced Burke to 156 months’
imprisonment to be followed by three years of supervised release. The court imposed
fourteen special conditions of supervision, two of which are relevant here:
1
The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
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2. Paragraph # 7 of the Standard Conditions of supervision is
modified, i.e., instead of merely refraining from excessive use of
alcohol, the defendant shall not purchase or possess, use,
distribute, or administer any alcohol, just the same as any other
narcotic or controlled substance.
....
7. The defendant shall not access, view or possess any pornographic
sexually oriented or sexually stimulating materials, including
visual, auditory, telephonic, or electronic media, computer
programs or services. The defendant shall not patronize any place
where such material or entertainment is available.
Burke did not file a direct appeal or pursue relief under 28 U.S.C. § 2255.
Burke began his term of supervision on January 5, 2017. On March 27, 2018,
Burke’s supervising probation officer filed a Petition for Warrant or Summons for
Offender Under Supervision, alleging violations of three conditions of supervised
release: (1) Standard Condition #3, which required Burke to “answer truthfully all
inquiries by the probation officer and follow the instructions of the probation officer”;
(2) Special Condition #7, which prohibited the possession of pornographic or
sexually stimulating materials; and (3) Special Condition #10, which prohibited
Burke “from using or having access to any online computer programs . . . or any other
computer networking service.”
Burke’s revocation hearing began on April 18, 2018. He attempted to admit
the third allegation, but the court struggled to find a sufficient factual basis. When
Burke’s attorney expressed Burke’s willingness to admit the second allegation, the
court responded, “[o]ne could argue that the present state of the law is problematic
with regard to [the] limitation” in Special Condition #7, and explained Burke might
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be unable to challenge the validity of the condition if he admitted the violation. The
court continued the hearing to April 25, 2018.
At the continued hearing, Burke’s attorney informed the court that the parties
had reached an agreement on how to avoid the issue regarding the second allegation.
In exchange for dismissal of the remaining allegations, Burke would admit to
violating Standard Condition #3 by failing to follow his supervising probation
officer’s instruction that he not possess erotic photographs of his wife.
The district court accepted Burke’s admission and revoked his supervision.
The court sentenced Burke to nine months’ imprisonment followed by five years of
supervised release. The court imposed—without defense objection—seventeen
special conditions, including Special Condition a, which prohibits Burke from
purchasing, possessing, using, distributing, or administering any alcohol, narcotics,
or controlled substances. Special Condition tt prohibits Burke from possessing,
viewing, or using “material including videos, magazines, photographs, computer
generated depictions, or any other forms that depict sexually explicit conduct
involving children or adults, as defined in 18 U.S.C. § 2256.” Burke timely appealed
his revocation sentence.
II. Discussion
Burke challenges the district court’s imposition of the Special Condition
related to alcohol, arguing the record lacks any evidence showing a need for a total
alcohol ban. While we generally review the imposition of special conditions for
abuse of discretion, we review for plain error a condition imposed without objection
by a defendant. United States v. Schultz, 845 F.3d 879, 881 (8th Cir. 2017) (citing United States v. Roberts,687 F.3d 1096
, 1100 (8th Cir. 2012)). Since Burke failed
to appeal the identically worded provision in 2005 and failed to object to the
provision when it was reimposed at his revocation sentencing, the matter is reviewed
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for plain error. On this record, the court did not plainly err by imposing the Special
Condition related to alcohol. See United States v. Simons, 614 F.3d 475, 481 (8th
Cir. 2010) (doubting that a total prohibition of alcohol use was supported by the
evidence but holding that imposing the condition was not plain error). See also
United States v. Big Boy, 583 F. App’x 594, 595 (8th Cir. 2014) (unpublished per
curiam) (holding that where the defendant “did not voice any concerns about the
propriety of the reimposed release condition[], . . . the court did not err, plainly or
otherwise, in not examining sua sponte whether the condition[] [was] still
warranted”).
Burke also argues the district court erred when it revoked his supervised
release based on the original Special Condition #7 because the condition was
overbroad, vague, and contrary to the First Amendment. Burke mistakes the district
court’s decision. Burke was sentenced for a violation of a different condition—the
standard condition requiring him to follow his probation officer’s instructions.
In addition, as with the total alcohol ban, Burke did not raise any objection to
the condition when it was originally imposed. We reject Burke’s attempt to challenge
the condition thirteen years after it was first imposed. See United States v. Lincoln,
876 F.3d 1137, 1140 (8th Cir. 2017) (quoting Big Boy, 583 F. App’x at 595) (holding
that a defendant may not violate conditions of supervised release and then challenge
for the first time a condition of supervised release that would have remained in effect
were it not for the defendant’s noncompliance).
III. Conclusion
For the foregoing reasons, we affirm the judgment of the district court.2
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2
We grant Burke’s motion for leave to file his supplemental pro se reply brief.
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