Cannot Challenge Legality of SR Condition Collaterally Without Changed Circumstances

US v. McLeod: McLeod pleaded guilty to aggravated identity theft and interstate travel for purposes of prostitution in 2013. At his guilty plea hearing, the Government mentioned that the prostitution charge may require McLeod to register as a sex offender, but the district court did not elaborate. Recognizing the mistake at sentencing, the district court gave McLeod the chance to withdraw his guilty plea. McLeod declined and was sentenced to 70 months in prison, plus a term of supervised release which required, as a condition, that he register as a sex offender.

After his term of imprisonment was complete, McLeod moved the district court to eliminate the registration requirement, arguing that neither of his offenses of conviction required registration under SORNA. The district court denied the motion on the merits, admitting that while the prostitution count did not require registration, the identity theft count did because it was a “specified offense against a minor.”

The Fourth Circuit dismissed McLeod’s appeal. The Government initially sought dismissal under the appeal waiver provision of McLeod’s plea agreement. Likening McLeod’s argument to one where the district court imposed restitution in a case where it lacked the authority to do so, the court concluded that McLeod’s argument was essentially that he was sentenced above the statutory maximum for his offenses, an issue which cannot be waived in a plea agreement. However, the court dismissed on another ground – that the supervised release statute did not provide a means for McLeod to file the motion in the first place. While the statute does provide the district court flexibility to modify conditions of supervised release after they’re imposed, and the defendant to seek such modification, it does not allow for a challenge to the legality of the condition if the basis for the alleged illegality was present at sentencing. In other words, a condition imposed at sentencing cannot be modified collaterally unless changed law or circumstances are present. A straight up challenge to the legality of a condition must be made on direct appeal (or a 2255 proceeding).

Judge Agee concurred in the judgment, agreeing with the resolution of the plea agreement issue, but arguing that even changed circumstances would not provide a basis for a collateral challenge to a condition of supervised release.