United States of America v. Andre Lamont Cook

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4473
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANDRE LAMONT COOK,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Liam O’Grady, District
Judge. (1:09-cr-00218-LO-1)
Submitted: January 28, 2016 Decided: February 4, 2016
Before DUNCAN, AGEE, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Geremy C. Kamens, Acting Federal Public Defender, Cadence Mertz,
Assistant Federal Public Defender, Alexandria, Virginia, for
Appellant. Dana J. Boente, United States Attorney, Anna G.
Kaminska, Special Assistant United States Attorney, Alexandria,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Andre Lamont Cook pled guilty in 2009 to travel with intent
to engage in illicit sexual conduct, in violation of 18 U.S.C.
§ 2423(b) (2012). He was sentenced to 46 months’ imprisonment,
followed by ten years of supervised release. The terms of
Cook’s supervised release included a number of Special
Conditions, including the following:
7. The defendant shall not possess or use a computer
to access any online computer services at any
location, including employment, without the prior
approval of the probation officer. This includes any
internet service providers, bulletin board systems, or
any other public or private computer network.
However, if the Court determines that the defendant
should be allowed access to a computer and/or the
Internet, it is recommended that the defendant comply
with the requirements of the Computer Monitoring
Program as administered by the Probation Office. The
defendant shall consent to the installation of
computer monitoring software on any computer to which
the defendant has access.
Shortly after Cook began his term of supervised release, he
signed a Computer & Internet Monitoring Program Participant
Agreement, in which he agreed to “not possess or permit another
individual to bring or possess an unauthorized computer in my
home.”
In July 2015, the United States Probation Office sought
revocation of Cook’s supervised release, alleging that Cook
possessed devices capable of accessing the internet (desktop
computers and an iPhone), without prior approval of the

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Probation Officer. At the revocation hearing, Cook presented
the testimony of two witnesses who stated that Cook did not use
the computers and did not have the password to the iPhone found
in his car. The district court specifically discredited their
testimony, found that Cook violated the terms of his supervised
release by possessing the devices, and sentenced Cook to time
served and imposed an additional term of supervised release. He
noted a timely appeal. We affirm.
We review a district court’s judgment revoking supervised
release for abuse of discretion, and its factual findings for
clear error. United States v. Padgett, 788 F.3d 370, 373 (4th
Cir.), cert. denied, 136 S. Ct. 494 (2015); United States v.
Copley, 978 F.2d 829, 831 (4th Cir. 1992). The district court
need only find a violation of a condition of supervised release
by a preponderance of the evidence. 18 U.S.C. § 3583(e)(3)
(2012); Copley, 978 F.2d at 831. “[A] preponderance of the
evidence . . . simply requires the trier of fact to believe that
the existence of a fact is more probable than its nonexistence.”
United States v. Manigan, 592 F.3d 621, 631 (4th Cir. 2010)
(internal quotation marks omitted).
Cook argues, first, that the district court erred in
finding that he violated Special Condition 7 because it failed
to find that he actually possessed or used a computer and that
he did so to access online computer services. Cook’s

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interpretation of Special Condition 7 would limit violations to
actual use of a computer to access the internet. However, the
language clearly encompasses possession or use of a computer
that is capable of accessing the internet. Such restrictions
are routinely imposed on defendants convicted of sex offenses
involving use of a computer. See, e.g., United States v.
Carpenter, 803 F.3d 1224, 1239 (11th Cir. 2015) (noting that
“our cases have uniformly upheld conditions prohibiting
defendants convicted of sex offenses from accessing a computer
or the Internet for the duration of their supervised release”);
United States v. Zinn, 321 F.3d 1084, 1087 (11th Cir. 2003)
(upholding condition of supervised release that the defendant
“shall not possess or use a computer with access to any on-line
service at any location, including employment, without written
approval from the probation officer”). Because the evidence
supported a finding that Cook possessed two internet-capable
devices without prior approval or monitoring programs installed,
the district court did not clearly err in finding that he
violated Special Condition 7.
Next, Cook argues that the district court erred in finding
a violation of Special Condition 7 by referring to the Computer
Monitoring Agreement because it is not part of the terms of his
supervised release; rather, Special Condition 7 only
“recommended” compliance with the Agreement. Cook also claims

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that, by allowing the probation officer to administer the
Computer Monitoring Program, the court impermissibly delegated
it authority to set the terms of supervised release.
We reject both of these arguments. First, Special
Condition 7 clearly prohibits the unauthorized use or possession
of the devices at issue, without reference to the Agreement.
And, second, probation officers “are authorized to manage
aspects of sentences and to supervise probationers and persons
on supervised release with respect to all conditions imposed by
the court.” United States v. Johnson, 48 F.3d 806, 808 (4th
Cir. 1995). A court may not, however, delegate to a probation
officer a judicial function, as such a delegation violates
Article III of the Constitution. Id. at 808-09. “To determine
if a court improperly delegated the judicial authority of
sentencing, [courts] have drawn a distinction between the
delegation to a probation officer of a ministerial act or
support service and the ultimate responsibility of imposing the
sentence.” United States v. Nash, 438 F.3d 1302, 1304-05 (11th
Cir. 2006) (internal quotation marks omitted). “Where the court
makes the determination of whether a defendant must abide by a
condition, it is permissible to delegate to the probation
officer the details of where and when the condition will be
satisfied.” Id. (internal quotation marks, brackets, and
ellipsis omitted).

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Here, the district court delegated to the probation officer
only the particular terms and conditions outlined in Special
Condition 7 and thus constituted a “ministerial act or support
service.” Nash, 438 F.3d at 1304-1305.
Finally, Cook argues that the evidence failed to show that
he used or owned any unauthorized internet-capable computer.
Specifically, Cook relies on the testimony of two witnesses who
stated that: (1) the computers at issue were never used by him
and, with respect to the computer found in his bedroom, was not
capable of accessing the internet, and (2) he did not have the
password to the iPhone. However, the district court
specifically discredited both witness’ testimony. Credibility
determinations are not subject to review. United States v.
Saunders, 886 F.2d 56, 60 (4th Cir. 1989).
Accordingly, we find that the district court did not abuse
its discretion in revoking Cook’s supervised release.
Therefore, we affirm. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the
decisional process.
AFFIRMED

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