USA v. McKathan

1
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
UNITED STATES OF AMERICA, 	)
)
vs. 	) 	Criminal Action No. 14-00290-KD-C
)
DENZIL EARL McKATHAN, 	)
)
Defendant. 	)
ORDER
This action is before the Court on Denzil Earl McKathan’s Motion to Correct Clerical
Error pursuant to Fed. R. Crim. P. 36 (doc. 196). Upon consideration, and for the reasons set
forth herein, the Motion is DENIED.
I. Relevant Background
In July 2017, at McKathan’s resentencing, the Court orally imposed the following
condition:
And you will be restricted on any device that has internet access. And you will be
subject to examination of any internet-capable device as part of your post-serving
release.
(Doc. 195, p. 4, Transcript). Defense counsel objected, as follows:
MR. MADDEN: … The internet access thing -- and I don't know what the world
is going to look like in 15 years. But I do know that it will be virtually impossible
-- or I believe that -- for a citizen to function without internet access. Now
restrictions on internet access -- I don't know if they'll call it internet at that time.
But restrictions in light of the criminal conduct that's been adjudicated is
reasonable. But blanket I think is -- goes too far. And there are cases that say that,
and they're starting to recognize –
The Court then clarified the scope of the condition and overruled the objection, as
follows:
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THE COURT: I said there will be computer restrictions, not you couldn't have
access to the computer.
MR. MADDEN: No ban.
THE COURT: And next one is examination of any internet-capable device.
MR. MADDEN: All right. With that understanding, I think that's it.
Thank you. …
THE COURT: Well, your objections are overruled, but you've preserved them for the
record.
(Doc. 195, p. 6-7, Transcript).
Special Condition 3(b) in the amended judgment, reflects the Court’s oral pronouncement
and sets forth as follows:
b. the defendant shall not possess or use a computer with access to any "on-line
computer service" at any location (including employment) without the permission
of the Probation Office.
(Doc. 117, p. 3).
II. Analysis
McKathan moves pursuant to Rule 36 of the Federal Rules of Criminal Procedure. The
Rule provides that “[a]fter giving any notice it considers appropriate, the court may at any time
correct a clerical error in a judgment, order, or other part of the record, or correct an error in the
record arising from oversight or omission.” “Rule 36 may not be used to make a substantive
alteration to a criminal sentence.” United States v. Zano, No. 23-12716, 2024 WL 2828867, at *2
(11th Cir. June 4, 2024) (citing United States v. Davis, 841 F.3d 1253, 1261 (11th Cir. 2016)).
However, “[w]here there is any discrepancy between the [written judgment and the oral
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pronouncement], a court's oral pronouncement of a sentence rules over the written judgment.” Id.
(citing United States v. Khoury, 901 F.2d 975, 977 (11th Cir. 1990)) (bracketed text added).
McKathan seeks modification of Special Condition 3(b) in his conditions of supervision
on grounds that, as written, 3(b) does not conform to the oral pronouncement of sentence at his
resentencing. McKathan argues that
[a]s written, this condition allows the Probation Office the discretion to allow or
deny internet access as it sees fit. In its July 26, 2017 oral pronouncement, the
court gave the Probation Officer (a non-article III officer) no such power or
discretion. In fact, when defendant's counsel objected on the basis that “It will be
virtually impossible . . . for a citizen to function without internet access,” the
Court clarified that it had done no such thing, stating “I said there will be
computer restrictions not you couldn't have access to the computer."
(Doc. 196). McKathan argues that “in light of the Court’s clarifying language, defense counsel
stated his understanding of the Court’s sentence - ‘No Ban’” (doc. 196, p. 2).
McKathan appears to believe that because the Court did not orally pronounce that the
Probation Office would set the internet-access/computer restrictions, the oral pronouncement
conflicts with the judgment. The Court finds no conflict or error to correct. The Court
pronounced that during supervision, McKathan’s internet access would be restricted. That his
access will be as permitted by the Probation Office, i.e., restricted, does not create a disparity
between the oral pronouncement and the written judgment.
McKathan also argues that the Court should replace Condition 3(b) with the following:
The defendant shall cooperate with the United States Probation Office Computer
and Internet Monitoring program. Cooperation shall include, but not be limited to,
identifying computer systems, Internet capable devices, and/or similar electronic
devices the defendant has access to, and allowing the installation of monitoring
software/hardware on said devices, at the defendant’s expense. The defendant
shall inform all parties that access a monitored computer, or similar electronic
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device, that the device is subject to search and monitoring. The defendant may be
limited to possessing only one personal Internet capable device, to facilitate the
ability to effectively monitor his/her Internet related activities. The defendant
shall also permit random examinations of said computer systems, Internet capable
devices, and similar electronic devices, and related computer peripherals, such as
CD’s under his/her control.
(Doc. 196, p. 2). McKathan points out that this district court has imposed this Condition
upon similar offenders (Id.).
The Court reviewed the judgments entered for the similar offenders and finds that
this Condition was imposed. However, McKathan is already subject to substantially
similar conditions, as follow:
3(c) the defendant shall consent to periodic, unannounced examinations of any
internet capable device, which may include retrieval and copying of all data to
ensure compliance with this condition, and/or removal of such equipment for the
purpose of conducting a more thorough inspection. …
4) the defendant shall submit his person, house, residence, vehicle(s), papers,
[computers (as defined by 18 U.S.C. Section 1030(e)(1)) or other electronic
communications or data storage devices of medial, business or place of
employment, and any other property under the defendant's control to a search,
conducted by a United States Probation Officer at a reasonable time and in a
reasonable manner, based upon reasonable suspicion of contraband or evidence of
a violation of a condition of release. Failure to submit to a search in accordance
with this condition may be grounds for revocation. The defendant shall warn any
other occupants that the premises may be subject to searches pursuant to this
condition.
(Doc. 117. p. 3).
Moreover, in each of the judgments, the similar defendants were also subject to
the following Condition, the same as McKathan:
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The defendant shall not possess or use a computer with access to any “on-
line computer service” at any location (including employment) without the
permission of the Probation Office.
See United States v. Vallejo-Devora, Criminal Action No. 22-00185-TFM (S.D. Ala.
2022) (doc. 52, July 10, 2023); United States v. Tyler, Criminal Action No. 21-00151-
TFM (S.D. Ala. 2021) (doc. 65, Oct. 14, 2022); United States v. Howell, Criminal Action
No 19-00013-CG (S.D. Ala. 2019) (doc. 148, Feb. 19, 2021); United States v. Smith,
Criminal Action No. 17-00105-CG (S.D. Ala. 2017) (doc. 36, Jan. 22, 2019).
III. Conclusion
Accordingly, for the reasons set forth herein, McKathan’s motion is denied.
DONE and ORDERED this the 11th day of October 2024.
s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE
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