This court, however, has previously addressed the issue in criminal cases involving conditions of supervised release. Id. at 1329 n. 1; United States v. White, 244 F.3d 1199, 1202-04 (10th Cir. 2001). The Government relies on those cases for its prudential ripeness argument.
( Id. at p. 126.) United States v. White (2001) 244 F.3d 1199 reaches a middle ground. Responding to an Internet advertisement posted as part of a sting operation, the defendant in White ordered videotapes advertised as containing child pornography.
First, in United States v. White, we overturned a special condition that prohibited the defendant from "possess[ing] a computer with Internet access throughout his period of supervised release." 244 F.3d 1199, 1201 (10th Cir. 2001). We found the condition simultaneously too narrow and overly broad.
Id. at 1326–27 (internal quotation marks and citation omitted).Criminal cases are "rarely" subjected to the "hurdle" of prudential ripeness, United States v. White , 244 F.3d 1199, 1202 (10th Cir. 2001), but our court has held that application of prudential ripeness doctrine to challenges involving conditions of supervised release is appropriate in some circumstances. In Bennett , for example, we declined to review a defendant's challenge because the sex-offender testing he protested against was contingent on his treatment provider's decision to order it and there was a significant chance that kind of testing would no longer be in use when he was released.
Appellate courts considering a similar restriction imposed upon defendants convicted of child pornography offenses have reached different conclusions. Compare United States v. White, 244 F.3d 1199, 1205-07 (10th Cir. 2001) (invalidating and requiring modification of restriction imposed on defendant who used Internet to receive child pornography), with United States v. Paul, 274 F.3d 155, 169 (5th Cir. 2001) (upholding restriction imposed on defendant who produced child pornography and used Internet to distribute it), and United States v. Crandon, 173 F.3d 122, 127-28 (3d Cir. 1999) (upholding restriction imposed on defendant who used Internet to contact 14-year-old girl with whom he had sexual relations and photographed such conduct). We appreciate the Government's point that permitting Sofsky access to a computer and the Internet after serving his ten-year sentence can facilitate continuation of his electronic receipt of child pornography, but we are more persuaded by the observation in Peterson that "[a]lthough a defendant might use the telephone to commit fraud, this would not justify a condition of probation that includes an absolute bar on the use of telephones."
We also consider judicial efficiency as it relates to the prudential ripeness analysis. United States v. White, 244 F.3d 1199, 1204 (10th Cir. 2001).
First, in United States v. White, we overturned a special condition that prohibited the defendant from "possess[ing] a computer with Internet access throughout his period of supervised release." 244 F.3d 1199, 1201 (10th Cir. 2001). We deemed that condition unreasonable under the sentencing statutes, because although it was intended to preclude the defendant from viewing sexually explicit material, it was both too narrow (it did not prevent improper computer usage on someone else's computer) and too broad (it prevented benign Internet usage).
In assessing prudential ripeness, this court has taken guidance from Abbott Laboratories v. Gardner , 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), abrogated on other grounds by Califano v. Sanders , 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977), which "instructs courts to assess ‘both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.’ " United States v. White , 244 F.3d 1199, 1202 (10th Cir. 2001) (quoting Abbott Labs. , 387 U.S. at 149, 87 S.Ct. 1507 ). 1. Fitness
But even if the condition is considered harsh, it would not be vague. Indeed, in other cases, we have held that the district court enjoys discretion to impose similar conditions. See United States v. White, 244 F.3d 1199, 1208 (10th Cir.2001) (upholding a similar condition and noting that suspicionless “probationary searches are not uncommon”); United States v. Hanrahan, 508 F.3d 962, 971 (10th Cir.2007) (upholding a condition requiring the defendant to “submit to a search of his person, property, or automobile under his control to ensure compliance with all conditions of probation”).Second, Mr. Muñoz argues that the condition prevents him from challenging the confiscation of property on due-process grounds.
We conclude that this language, standing alone, would impermissibly impose a greater deprivation of liberty than reasonably necessary because it suggests the Probation Office may completely ban a means of communication that has become a necessary component of modern life. No extraordinary circumstances justify such a blanket ban in this case. This conflicts with our holding in United States v. White, 244 F.3d 1199, 1206 (10th Cir.2001) ( “White I ”), and since White I was decided in 2001, Internet use has become even more central to participation in the civic and economic life of our society. However, the district court limited the condition at issue in an oral pronouncement, clarifying that it was restricting, rather than prohibiting, defendant Ronald Ullmann's use of the Internet and Internet-capable devices. Because this pronouncement saves the otherwise deficient condition, we exercise jurisdiction under 28 U.S.C. § 1291 and affirm.