Supervised release; Special condition; United States v Sears; No-contact order due to threatening communications; 18 USC § 3583(d)(2); § 3553(a); First Amendment; Free Speech Clause; Petition Clause; Plain error review; United States v Williams; Narrowly drawn conditions; United States v Nixon; United States v Marcum (Unpub 6th Cir)

The court held that the district court’s one-year supervised-release condition banning defendant from contacting any member of Congress was overbroad, but the error was not plain because no binding precedent clearly answered the question. Defendant pled guilty to transmitting a threat in interstate commerce after repeatedly contacting and threatening a Senator and a Congresswoman, including a voicemail threatening to kill the Congresswoman. The district court sentenced him to prison and imposed a one-year supervised-release condition barring contact with “the victims or any members of Congress, directly, indirectly, through” third parties, through social media, or in any way that could be construed as harassing or threatening. On appeal, the court held that the condition burdened defendant’s First Amendment speech and petition rights and was broader than reasonably necessary under § 3583(d)(2) because it barred even lawful contact with Congress about matters such as veteran benefits, policy issues, public reports, or newsletters. The court reasoned that the condition could have been narrowed by limiting the form of contact, limiting the protected persons, barring only threatening or harassing content, or allowing legitimate contact with probation-officer approval. But because defendant did not object below, plain-error review applied, and the court held that the error was not “obvious or clear” given the lack of binding precedent addressing a no-contact condition with Congress after threats to members of Congress. Affirmed.