United States of America v. Eric Keller

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 08-3549
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UNITED STATES OF AMERICA
v.
ERIC KELLER,
Appellant
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Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 06-00671)
District Judge: Honorable Berle M. Schiller
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Submitted Under Third Circuit LAR 34.1(a)
January 25, 2010
Before: FUENTES and FISHER, Circuit Judges
CONNER, * District Judge
(Filed: February 22, 2010)
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OPINION OF THE COURT
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_______________________
* Honorable Christopher C. Conner, United States District Judge for the Middle
District of Pennsylvania, sitting by designation.

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CONNER, District Judge
Appellant Eric Keller appeals his sentence following his plea of guilty to a ten-
count indictment charging him with mail fraud in violation of 18 U.S.C. § 1341.
Specifically, Keller appeals a special condition of supervised release banning his use of
the internet to create or conduct “business websites” during the three year term of
supervised release. We have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C.
§ 1291, and will affirm.
Background
The parties are familiar with the facts and proceedings in the District Court, so we
will only briefly revisit them here. Keller owned and operated an internet retail candy
business via several websites. He engaged the commercial shipping services of United
Parcel Service (“UPS”) to deliver candy to his internet customers. Using fraudulent
information, Keller established a succession of twelve UPS shipping accounts. When one
shipping account was suspended for non-payment, Keller abandoned that account and
opened another, utilizing aliases and other subterfuge to hide his identity. Ultimately,
UPS suffered a loss of approximately $155,650.
On September 4, 2007, Keller pleaded guilty to ten counts of mail fraud in
violation of 18 U.S.C. § 1341. On August 1, 2008, the District Court imposed a term of
incarceration of 27 months, a three year term of supervised release and full restitution.
Pertinent to the instant appeal, the District Court imposed the following special condition

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We note a slight discrepancy in the wording of the special condition in the1
judgment form which states: “As a further special condition of supervised release, the
defendant shall cease and no longer create or conduct any businesses/websites via the
internet for the period of supervision.” App. 12. Given the District Court’s explicit
description of the condition at the time of sentencing, we are not troubled by this minor
and, presumably, inadvertent difference in wording. See Sentencing Transcript, app. at
34. (The Court: “The occupational restriction . . . is his using the internet for mail order
business, and that’s the basis of this crime.”)
We are mindful that special conditions cannot involve a “greater deprivation of2
liberty than reasonably necessary.” 18 U.S.C. § 3583(d)(2).
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of supervised release: “As a further special condition of supervised release, the defendant
shall cease and no longer create or conduct any business websites via the internet.”
App. 47.1
Standard of Review
We review challenges to special conditions of supervised release under an abuse of
discretion standard. United States v. Voelker, 489 F.3d 139, 143 n.1 (3d Cir. 2007);
United States v. Smith, 445 F.3d 713, 716 (3d Cir. 2006).
Discussion
District courts may impose a variety of special conditions of supervised release
provided, however, that such conditions are reasonably related to the statutory factors set
forth in 18 U.S.C. § 3553(a). Moreover, district courts must make factual findings that2
establish some connection between the special condition and the offense of conviction or
other characteristics of the defendant. United States v. Miller, ___ F.3d ___, No.
08-4278, 2010 WL 395917 at *9-10 (3d Cir. February 5, 2010); United States v.

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Heckman, ____ F.3d ____, No. 08-3844, 2010 WL 59185 at *3 (3d Cir. Jan. 11, 2010).
We will affirm special conditions that have “‘any viable basis . . . in the record before the
District Court . . .’.” U.S. v. Voelker, 489 F.3d 139, 144 (3d Cir. 2007) (quoting United
States v. Warren, 186 F.3d 358, 367 (3d Cir. 1999)).
Pursuant to our recent precedential opinion in United States v. Heckman, supra, we
examine special conditions on a defendant’s use of the internet with sensitivity to three
factors: “(1) the length and (2) coverage of the imposed ban; and, (3) the defendant’s
underlying conduct.” Id. at *3 (emphasis in original). Accord, United States v. Miller,
supra.
Applying these standards to the special condition at issue, we have no hesitation in
upholding it. First, we note that the District Court carefully considered the underlying
fraud in crafting the special condition and made appropriate factual findings to support it:
I make a finding that there is a direct relationship between the
defendant’s use of the internet and the crime for which he has
pled guilty in this Court.
An imposition of such a restriction is reasonably
necessary to protect the public because there is reason to believe
that absent such restriction, the defendant will continue to
engage in unlawful conduct similar to that which the defendant
was convicted, and that the time frame and structure of the
special condition is for the minimum time frame and the
minimum extent necessary to protect the public and that is the
length of time of supervised release.
Sentencing Transcript, app. at 47.

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In his brief, Keller characterizes the condition as an “extremely overbroad and3
excessively restrictive occupational restriction” and suggests heightened scrutiny of the
condition because “it puts him and his established company out of business.” Brief for
Appellant at 11,15. In light of the underlying fraud perpetrated by Keller while operating
his “established company,” this argument is specious. To the extent the restriction
excludes Keller from any internet-based mail order business for three years, it is deterring
him and it is protecting the public, albeit temporarily, from further acts of fraud.
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With respect to duration, the restriction is limited to three years—the term of
supervised release. The restriction is also temperate in scope. It prohibits only the use of
the internet to establish or conduct mail order businesses. Finally, it is directly related to3
the criminal conduct underlying Keller’s conviction, to wit: mail fraud emanating from an
internet candy business.
In sum, we conclude that there is a sufficient nexus between the narrow restriction
on Keller’s use of the internet and the objectives of supervised release, particularly
deterrence and protection of the public. We also conclude that it does not impose a
“greater deprivation of liberty than reasonably necessary.” 18 U.S.C. § 3583(d)(2).
Accordingly, we will affirm the judgment of the District Court.

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