WILKES-BARRE — The U.S. Third Circuit Court of Appeals has issued a precedent-setting opinion that a lifetime internet ban for a Nanticoke man convicted of online enticement was overly broad.
The court wrote in its opinion last week that Branden Holena, 32, should be restricted from unfettered internet access, but that a blanket lifetime ban runs afoul of his right to free speech.
“Holena poses a danger to children, so the District Court may, and should, limit his liberty accordingly,” the judges wrote. “But his supervised release must still be tailored to the danger that he poses. Holena’s current conditions fail that test. They contradict one another. They also sweep too broadly, preventing him from reading the news or shopping online. And they limit his First Amendment freedoms beyond what is reasonably necessary or appropriate.”
Holena was accused of visiting an online chat room and trying to entice a 14-year-old boy to have sex with him. However, the boy was actually an undercover FBI agent, and he was charged with attempting to entice a minor to engage in sex acts.
Holena pleaded guilty, and U.S. District Judge Edwin M. Kosik sentenced him in June 2008 to 10 years in prison with a lifetime of supervision, during which he was banned from using the internet without his probation officer’s approval.
But after being released from prison, Holena twice violated his probation by going onto social media and answering emails. He was sentenced to an additional nine months in prison for each violation.
After the second offense, U.S. District Judge Matthew W. Brann in November 2017 imposed a lifetime ban on using computers or electronic communications devices as well as a lifetime ban on accessing the internet.
Holena then objected to the bans, which the appeals court found “both contradictory and more restrictive than necessary.”
In its opinion, the court described internet bans in general as “draconian” and said the length and coverage of the computer ban for Holena is “excessive.”
The court noted it has never upheld a lifetime internet ban in a precedent-setting opinion, saying it is hard to imagine how anyone could function in modern society with a lifetime ban on computer use.
The sentence barred Holena from even possessing a cellphone that did not have internet access, preventing him from doing everyday tasks such as calling someone for a ride, the judges noted. He was also barred from accessing the internet at all, even for sites where Holena could not interact with others or view explicit materials.
The judges noted the goal is to prevent Holena from preying upon children, and said the restrictions must be tailored to that end. As a result, the judges found the blanket ban on electronic devices and internet access too broad.
“Both Holena’s computer ban and internet ban limit an array of First Amendment activity,” the judges wrote. “And none of that activity is related to his crime. Thus, many of the restrictions on his speech are not making the public safer.”
The judges sent the case back to the district court for a new revocation hearing.
Records show Holena is under the supervision of the federal Bureau of Prisons’ Residential Reentry Management facility in Philadelphia.
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