United States of America v. River William Smith

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 24-1196
___________________________
United States of America
Plaintiff - Appellee
v.
River William Smith
Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota
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Submitted: October 25, 2024
Filed: July 25, 2025
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Before LOKEN, SMITH, and GRASZ, Circuit Judges.
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GRASZ, Circuit Judge.
River Smith pled guilty to unlawful possession of a machine gun, in violation
of 18 U.S.C. §§ 922(o) and 924(a)(2), and was sentenced to 80 months of
imprisonment. Smith appeals his sentence, arguing the district court erred by
denying a reduction for his acceptance of responsibility under the United States
Sentencing Guidelines Manual (Guidelines or U.S.S.G.); by applying offense level
enhancements for the number of firearms and destructive devices involved in the

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offense; by imposing a substantively unreasonable sentence; and by imposing certain
special conditions of supervised release. We affirm in part, vacate three special
conditions, and remand for resentencing.
I. Background
In September 2022, the Federal Bureau of Investigation (FBI) received a tip
from a retired police officer that Smith had been observed at a shooting range
engaging in tactical shooting drills while wearing body armor. The FBI established
surveillance of Smith and observed him engage in behavior similar to the behavior
reported by the tipster, expelling over 200 rounds in one hour. On November 15,
2022, the FBI utilized a confidential human source (CHS1) to contact Smith through
social media. CHS1 posed as a former female classmate of Smith. In conversations
with CHS1, Smith expressed prejudicial views about various ethnic, racial, and
religious groups, as well as his interest in firearms and his hatred of law enforcement.
Smith told CHS1 that he used body armor at the shooting range because he wanted
to practice what he would “intend to use in a life or death situation.” He further
explained that he carried two guns and wore body armor “every single day” so he
“can defeat cops if [he was] pestered.” Smith told CHS1: “[I]f [officers] try to search
or arrest me I’m killing them.”
The following day, the FBI placed a second confidential human source
(CHS2) next to Smith at the shooting range. CHS2 had a firearm equipped with a
binary trigger — a device that allows a round to be expelled both on trigger pull and
release — which drew Smith’s interest. After a brief conversation regarding
CHS2’s binary trigger, the two met again the following day and Smith inquired about
purchasing an auto sear so he could convert his semi-automatic firearms to be fully
automatic. Smith provided CHS2 with a downpayment for one auto sear, and later
that day followed up with CHS2 about obtaining an additional auto sear for his other
firearm. Smith also informed CHS2 of his interest in joining a neo-Nazi paramilitary
group, which Smith described as “legit terrorists” who “actually do[] s*** like
bombs . . . [p]ipe bombs and car bombs and s*** like that.”

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CHS1 and CHS2 continued to communicate with Smith. When discussing a
mass shooting that had occurred two days prior, Smith referred to the shooter as “a
hero” and explained he was “pro mass shooting in general.” Smith stated he would
not commit a mass shooting himself except if he “was compromised by the police”
explaining “if they ever attempted to get [his] guns, [he] would open fire.” Smith
told CHS1 he feared CHS2 was an informant, but if CHS2 was, Smith would “waste
him” and “as many cops as [he] could.” Two days later, Smith told CHS1 he made
money selling firearms to his friends who were felons and could not buy such
weapons themselves. He further stated that “everyday when [he] leave[s] the
house,” he “mentally prepare[s himself] to die or take out cops.” When CHS2 and
Smith met up again at the shooting range, Smith asked CHS2 if he could obtain
fragmentary grenades for him and explained his interest in obtaining pipe bombs if
law enforcement came to his home. Smith assured CHS2 that he would not tell
anyone how he obtained the auto sears and grenades because “they won’t have
anyone to question, bro, cause I’ll be f***ing dead, but so will hopefully a bunch of
them.”
Ultimately, Smith and CHS2 arranged a sale where Smith would obtain three
auto sears and three grenades from CHS2. Smith provided CHS2 with the remaining
money owed and received the items, though the grenades he actually received were
inert. When Smith walked away from CHS2 with these items, law enforcement
arrested Smith. At this time, Smith was wearing soft armor and possessed a loaded
handgun and three loaded magazines. A search of his residence revealed an
estimated $20,000 worth of firearms, magazines, ammunition, and other accessories.
During a prior juvenile adjudication for a weapons-related offense, law
enforcement learned Smith had obtained information online about firearms and
explosives, including materials with titles like “Al Qaeda Terrorism Manual,”
“Kitchen Improvised Fertilizer Explosives,” and “Explosives and Propellants from
Commonly Available Materials.” A search of his devices following his arrest for
the current offense showed he provided an internet user a file titled “The Poor Man’s
RPG Shoulder Fired Anti-Tank Grenade” and had searched for how to modify an

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AR-15 to be fully automatic. Officers also located a video of Smith watching a
promotional video about the Mall of America in Bloomington, Minnesota. As Smith
narrates the video, he describes the mall as “a shooting range” and states multiple
times that he is going to “shoot up” the mall. Smith’s searches included terms like
“mall of America metal detectors,” which Smith admitted to looking up so he would
know what parts of the mall to avoid when carrying a gun. Smith also looked up
various mass shootings at schools and nightclubs. In addition, Smith’s devices
showed other threatening remarks he had made, such as a photograph of various
firearms captioned “This isn’t even half; half of my Muslim killing arsenal” followed
by “Christchurch mosque moment,” a reference to a mass shooting in Christchurch,
New Zealand. Smith had also made more than twenty searches for police body
camera footage as part of an effort to “learn[] about [his] enemy [by] watching police
body cam shootings on YouTube.”
After his arrest, Smith expressed his lack of remorse for his actions, telling his
grandmother on a jail phone call that he “was not in the wrong” and “was obviously
correct about a few things [he had] done.” Smith asked his mother and grandmother
to help him escape from jail, asking his grandmother, “What do you have to lose by
shooting some guards?” He further explained his belief that he should have resisted
arrest and stated he was “gonna lie and plead guilty, even though [he] know[s] [he
is] not guilty.”
Smith did indeed plead guilty to unlawful possession of a machine gun, but
that did not stop him from continuing to express in recorded jail calls his intent to
commit further firearms crimes. Smith told his grandmother he expected her to
purchase firearms for him after his release from imprisonment, which he then
planned to take to Russia to “kill[] Americans in Ukraine.” After Smith’s mother
reminded him that he could not lawfully obtain a firearm, Smith responded, “It’s my
decision . . . if you guys catch me with a gun, it’s crazy, you can charge me with
Felon in Possession of a Firearm.” Smith further discussed his interest in a “ghost
gunner thing” and how he would “be going up against the U.S. government and its
entirety” after his release. Smith remarked that he “hope[d] they’re listening” and

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“hope[d] it scares them.” When discussing a potential sentence, Smith stated his
belief that he would “be getting out at 26 years old, [and] have a bunch of money
cause [his] grandparents are gone” so he would “have nothing to lose” and “a
vendetta against the U.S. government.” In another call, Smith discussed a mass
shooting at a mall and said: “We got to start a movement to try to get these guys to
go to like police stations or something and shooting those places up.”
In his interview with a probation officer as part of preparing the presentence
investigation report (PSR), Smith claimed his threatening remarks made prior to his
arrest, including the Mall of America video, were “shock humor” or for “shock
value.” He justified the post-plea comments as venting and the result of anxiety
while inadequately medicated and that he had no intention of doing the actions he
discussed. But based on the remarks, the probation officer did not recommend a
reduction for acceptance of responsibility. The PSR also recommended two two-
level enhancements related to the grenades: (1) the offense involved three firearms
because Smith sought to obtain the three grenades, which are destructive devices
that fall under the “firearms” definition; and (2) the offense involved a destructive
device — the grenades.
At sentencing, Smith argued he was entitled to a reduction for acceptance of
responsibility and that the two enhancements related to the grenades should not
apply because the grenades he obtained were inert. The district court overruled these
objections to the enhancements because the evidence showed Smith intended to
purchase live grenades and only received inert ones because of the nature of the
controlled buy. As to acceptance of responsibility, the district court concluded
Smith’s statements before and after the plea demonstrated a lack of remorse. The
district court then calculated Smith’s Guidelines range as 41 to 51 months of
imprisonment. While the district court rejected the government’s various requests
for an upward departure, it concluded an upward variance was warranted given the
number of firearms and amount of ammunition Smith had and his repeated
statements about his “reverence for firearms, violence, and mass shootings”
alongside his expressed hatred for various groups. The district court believed

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Smith’s actions and statements “strongly suggested [he] is inclined to re-offend and
poses a threat to society.” It sentenced Smith to 80 months of imprisonment to be
followed by three years of supervised release.
The district court also imposed special conditions of supervised release.
Three of those conditions were aimed at limiting Smith’s ability to access certain
“extremist” or “inappropriate” materials, the internet, and social media. Special
Condition 5 prohibits Smith from “possess[ing] or us[ing] a computer or hav[ing]
access to any on-line service without the prior approval” of the Probation Office, as
well as allowing probation to install a monitoring program and permitting random
searches of any such devices. Special Condition 8 prohibits Smith from
“possess[ing], view[ing], access[ing] or otherwise us[ing] material that reflects
extremist or terroristic views or as deemed to be inappropriate by the U.S. Probation
Office.” Special Condition 9 limits Smith’s ability to use internet chats, online social
networks, or texting applications without approval from his probation officer and the
district court. Smith challenged these special conditions as violations of his First
Amendment rights. The district court overruled these objections based on Smith’s
“violent ideation against certain groups of people, including law enforcement,” as
detailed in the PSR and at an evidentiary hearing prior to sentencing.
II. Analysis
On appeal, Smith contends (1) the district court erred by denying a reduction
for acceptance of responsibility; (2) the district court improperly applied the two
two-level enhancements related to the grenades; (3) the sentence was substantively
unreasonable; and (4) Special Conditions 5, 8, and 9 violate his First Amendment
rights. We address each argument in turn.
A. Acceptance of Responsibility
We first consider Smith’s argument that the district court should have credited
him for acceptance of responsibility under U.S.S.G. § 3E1.1 when calculating his

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Guidelines range. “We review the district court’s denial of the acceptance of
responsibility reduction for clear error.” United States v. Seys, 27 F.4th 606, 611
(8th Cir. 2022). “The defendant has the burden to establish that he has ‘clearly
demonstrated’ entitlement to the reduction.” United States v. Wineman, 625 F.3d
536, 538 (8th Cir. 2010) (quoting United States v. Herron, 539 F.3d 881, 887 (8th
Cir. 2008)). “We afford ‘great deference’ to the sentencing judge’s determination
of whether to grant the reduction because of the judge’s ‘unique position to evaluate
a defendant’s acceptance of responsibility.’” Seys, 27 F.4th at 611 (quoting United
States v. Cooper, 998 F.3d 806, 810 (8th Cir. 2021)).
Here, Smith argues that his guilty plea, expression of remorse during his
presentence investigation interview, and handwritten letter to the district court
should have warranted a reduction. While a guilty plea is “significant evidence in
favor of an award of the acceptance-of-responsibility reduction,” such evidence
“may be outweighed by conduct of the defendant that is inconsistent with such
acceptance of responsibility.” Cooper, 998 F.3d at 810 (quoting United States v.
William, 681 F.3d 936, 939 (8th Cir. 2012)). Indeed, a defendant who pleads guilty
“is not entitled to an adjustment under [U.S.S.G. § 3E1.1] as a matter of right.” Id.
(quoting William, 681 F.3d at 939). Instead, a defendant must show “a recognition
and affirmative responsibility for the offense and sincere remorse.” Id. (quoting
United States v. Nguyen, 52 F.3d 192, 194 (8th Cir. 1995)). A district court may
consider both pre- and post-plea conduct when deciding whether a defendant has
accepted responsibility. Id. at 811.
Smith fails to demonstrate the district court clearly erred by denying a
reduction for acceptance of responsibility. The district court considered Smith’s pre-
and post-plea telephonic statements and concluded “these statements reflect
defendant’s utter lack of remorse and refusal to take responsibility for his actions.”
These statements included Smith’s remarks that he would not accept he did anything
wrong and that he would lie and plead guilty, along with his repeated requests to his
family to help him violate federal firearms laws once his sentence is complete. The
district court did not clearly err by concluding Smith’s statements failed to show

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sincere remorse and outweighed his guilty plea. See Wineman, 625 F.3d at 537–39
(denying acceptance of responsibility where the defendant made online statements
blaming others for his conviction after his guilty plea).
B. Grenade Enhancements
Smith next challenges the two enhancements that were applied based on the
grenades, arguing the grenades were inert and the government dismissed a separate
charge related to them so the grenades could not be used to enhance his sentence.
We “review[] factual findings supporting an enhancement for clear error, and legal
conclusions about the guidelines de novo.” United States v. Nilsen, 18 F.4th 587,
589 (8th Cir. 2021). We conclude the district court did not commit a reversible error
in applying these enhancements.
The fact that the charge related to Smith’s purchase of the grenades was
dismissed did not prevent the district court from considering such conduct at
sentencing. The Guidelines in effect at Smith’s sentencing permitted the district
court to consider all relevant conduct proven by a preponderance of the evidence in
determining the appropriate advisory Guidelines range, including uncharged or even
acquitted conduct. See United States v. Ruelas-Carbajal, 933 F.3d 928, 930 (8th
Cir. 2019); United States v. Smith, 681 F.3d 932, 935–36 (8th Cir. 2012); U.S.S.G.
§§ 1B1.3(a), 6A1.3(a) (2023). Thus, the district court was not precluded from
considering Smith’s purchase and possession of the grenades.
Moreover, the district court did not err in concluding that it was irrelevant for
purposes of the number-of-firearms enhancement that the grenades Smith obtained
were inert because he intended to obtain live grenades. The Guidelines application
notes for the U.S.S.G. § 2K2.1(b)(1) enhancement direct a court to count any firearm
that was “unlawfully sought to be obtained” in addition to ones actually possessed.
See U.S.S.G. § 2K2.1(b)(1) cmt. n.5. The relevant definition of “firearm” includes
“any destructive device,” which includes a grenade. See U.S.S.G. § 2K2.1 cmt. n.1;
18 U.S.C. § 921(a)(3), (4)(A)(ii). Smith did not argue to the district court that he

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intended to purchase inert grenades, and the district court concluded “the record
amply supports a finding that the defendant purchased the grenades wanting and
believing them to be operable as destructive devices.” We find no clear error with
this finding given the unobjected-to facts outlined in the PSR, which established
Smith’s intent to obtain fragmentary grenades. Because Smith sought to possess and
agreed to purchase three live grenades, the district court could properly count those
grenades even though the ones ultimately obtained were inert. See U.S.S.G.
§ 2K2.1(b)(1) cmt. n.5; United States v. Maturino, 887 F.3d 716, 720, 723–24 (5th
Cir. 2018) (holding inert grenades counted when calculating the number of firearms
possessed under § 2K2.1(b)(1) when a defendant sought to obtain live grenades);
United States v. Birk, 453 F.3d 893, 900 (7th Cir. 2006) (including firearms a
defendant sought to obtain but did not yet possess when applying U.S.S.G.
§ 2K2.1(b)(1)).
As for the destructive devices enhancement, U.S.S.G. § 2K2.1(b)(3)(B)
directs that the offense level should increase by two levels if the offense involved a
destructive device as defined in 26 U.S.C. § 5845(f), which includes explosive
grenades. See U.S.S.G. § 2K2.1(b)(3)(B) & cmt. n.1; 26 U.S.C. § 5845(f). We need
not resolve Smith’s claim that inert grenades are not destructive devices under this
provision because, even if the application of the enhancement was an error, it was
harmless. “[A]ny error resulting from an incorrect calculation of the Guidelines is
harmless ‘when the district court indicates it would have alternatively imposed the
same sentence even if a lower guideline range applied.’” United States v. Holmes,
87 F.4th 910, 914 (8th Cir. 2023) (quoting United States v. Hamilton, 929 F.3d 943,
948 (8th Cir. 2019)). The district court explained that “the sentence imposed would
have been the same, even if it had determined that the guidelines enhancements
relating to the grenades did not apply” based on its consideration of the
circumstances of the offense and the other sentencing factors. “We have previously
found that similar explanations rendered a purported error harmless,” so we do not
need to resolve Smith’s challenge to the destructive devices enhancement. See id.
at 914–15.

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C. Substantively Unreasonable Sentence
We now address Smith’s argument that his upward-variance sentence of 80
months of imprisonment is substantively unreasonable. We review the substantive
reasonableness of a sentence for abuse of discretion. Id. at 916. “A district court
abuses its discretion when it ‘fails to consider a relevant and significant factor, gives
significant weight to an irrelevant or improper factor, or considers the appropriate
factors but commits a clear error of judgment in weighing those factors.’” Id.
(quoting United States v. Doerr, 42 F.4th 914, 918 (8th Cir. 2022)). Only in an
“unusual case” will “we reverse a district court sentence—whether within, above, or
below the applicable Guidelines range—as substantively unreasonable.” Id.
(quoting United States v. Feemster, 572 F.3d 455, 464 (8th Cir. 2009) (en banc)).
Smith claims the district court (1) failed to consider mitigating factors such as
his psychological condition and social adversity; (2) punished him for his political
beliefs; and (3) committed a clear error of judgment by upwardly varying. We
disagree as to each assertion. The district court recognized Smith’s mental health
condition and heard extensive argument about his social adversity. But it explained
that the circumstances of the offense were severe: Smith sought to obtain three auto
sears and three grenades after already gathering an extensive stockpile of weapons
and ammunition and made repeated statements about his interest in and support for
mass shootings and violence against law enforcement and other groups. To the
extent the district court did not explicitly reference some of Smith’s mitigation
arguments, it was not required to do so. See United States v. Dace, 660 F.3d 1011,
1014 (8th Cir. 2011). Nor was it obligated to weigh these factors as Smith wanted.
Id.
Smith argues that a district court cannot impose a sentence based on its
approval or disapproval of any defendant’s personal beliefs or free speech. But that
did not happen here. Rather, Smith’s statements reflected that he was taking steps
towards being able to carry out potential harm, as shown by evidence like: Smith’s
messages of a photo of various firearms followed by the words “Muslim killing

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arsenal” and “Christchurch mosque moment”; his video where he claimed he was
“gonna go shoot up the Mall [of America]”; and his explanation to CHS1 that he
bought auto sears “so [he] can be better a[t] killing people in general.” In other
words, the district court did not base its sentence on views or beliefs it disliked.
Instead, the district court linked Smith’s statements to his illegal acquisition of auto
sears, his reverence for violence, his expression of an interest in carrying out such
violence, and various steps he was taking that could lead to him actually committing
an attack against the groups he disliked. Smith’s statements also revealed his
intentions. Prior to obtaining the auto sears and grenades, Smith assured CHS2 that
he would not identify who provided him with the weapons: “[T]hey won’t have
anyone to question, bro, cause I’ll be f***ing dead, but so will hopefully a bunch of
them.” Moreover, Smith continued to plan how to obtain firearms upon his release
from imprisonment while awaiting sentencing.
It is therefore unsurprising that the district court referenced Smith’s views
when explaining why Smith’s conduct and characteristics indicated a longer term of
imprisonment was warranted — it was identifying the basis for its reasonable
concern that Smith’s purchase of auto sears and grenades was part of a plan to inflict
violence against those groups, law enforcement, or the public at large as well as
Smith’s likelihood of recidivism. While Smith points out that there was no evidence
that he had ever harmed someone, the district court was empowered to draw
reasonable inferences from the evidence, including that Smith likely would have
inflicted violence had he not been arrested. See United States v. Byas, 581 F.3d 723,
725–26 (8th Cir. 2009) (rejecting a sentencing challenge to a district court’s
reasonable inference from the facts). Considering the district court rejected the
government’s request for a statutory maximum sentence and sentenced Smith to 80
months of imprisonment, it is obvious the district court recognized Smith had not
carried out a violent attack but that does not mean it was required to blind itself to
warning signs when imposing a sentence.
Ultimately, the district court concluded the conduct here was “egregious” and
Smith “is inclined to re-offend and poses a threat to society.” The district court’s

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explanation of the sentence showed it considered Smith’s arguments but
nevertheless viewed the conduct as concerning and warranting an upward variance.
We cannot conclude based on this record that it was a clear error of judgment to
impose a substantial sentence. The district court did not abuse its discretion.
D. Special Conditions of Supervised Release
Finally, we turn to Smith’s challenges to Special Conditions 5, 8, and 9, which
place restrictions on Smith’s ability to access certain “extremist” or “inappropriate”
materials, the internet, and virtual means of communications. Smith argues these
conditions “will unduly constrain [his] ability to lead a normal life” and
“fundamentally interfere with his First Amendment rights.” We afford the
sentencing judge “wide discretion when imposing terms of supervised release” and
review those imposed terms for abuse of discretion. United States v. Crume, 422
F.3d 728, 732 (8th Cir. 2005). A district court abuses its discretion if it imposes
special terms of supervised release that fail to comply with three statutory
requirements set forth in 18 U.S.C. § 3583(d). Id. at 732–33. “First, the special
conditions must be ‘reasonably related’ to five matters: the nature and circumstances
of the offense, the defendant’s history and characteristics, the deterrence of criminal
conduct, the protection of the public from further crimes of the defendant, and the
defendant’s educational, vocational, medical or other correctional needs.” Id. at 733
(quoting 18 U.S.C. § 3583(d)(1)). Next, “the conditions must ‘involve[] no greater
deprivation of liberty than is reasonably necessary’ to advance deterrence, the
protection of the public from future crimes of the defendant, and the defendant’s
correctional needs.” Id. (quoting 18 U.S.C. § 3583(d)(2)). Finally, “the conditions
must be consistent with any pertinent policy statements issued by the sentencing
commission.” Id. We encourage district courts “to provide an explanation of how
the conditions satisfy the requirements of [18 U.S.C.] § 3583(d), but where the basis
for the special conditions can be discerned from the record, reversal is not required.”
United States v. Sanchez, 44 F.4th 1100, 1103 (8th Cir. 2022) (alteration in original)
(quoting United States v. Simpson, 932 F.3d 1154, 1156 (8th Cir. 2019)).

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We begin with Special Conditions 5 and 9. Special Condition 5 directs that
Smith “shall not possess or use a computer or have access to any on-line service
without the prior approval of the U.S. Probation and Pretrial Services Office,” must
“allow[] installation of a computer and Internet monitoring program” on internet-
capable devices that he accesses, and must permit probation to conduct “random
examinations of computer systems along with Internet, electronic, and media storage
devices under [his] control.” Similarly, Special Condition 9 states Smith “shall not
access Internet Relay Chats or newsgroups or participate in any online social
environment (i.e., Facebook, Twitter, . . . etc.) or texting applications, which allow
the user interaction unless pre-approved and authorized by the probation officer and
court.”
These conditions undoubtedly implicate First Amendment rights, and “we are
particularly reluctant to uphold sweeping restrictions on important constitutional
rights.” See Crume, 422 F.3d at 733. The internet and social media have become
“the most important places (in a spatial sense) for the exchange of views” so “to
foreclose access to social media altogether is to prevent the user from engaging in
the legitimate exercise of First Amendment rights.” Packingham v. North Carolina,
137 S. Ct. 1730, 1735, 1737 (2017). “Even convicted criminals . . . might receive
legitimate benefits from these means for access to the world of ideas, in particular if
they seek to reform and to pursue lawful and rewarding lives.” Id. at 1737.
Given these important interests, almost all our cases authorizing such special
conditions are cases where a defendant was convicted of crimes involving child
pornography or other sex crimes involving a minor and “there was evidence that the
defendant used his computer and the Internet to do more than merely possess child
pornography.” Crume, 422 F.3d at 733. See, e.g., United States v. Demers, 634 F.3d
982, 983–85 (8th Cir. 2011) (affirming a special condition prohibiting unauthorized
internet access when the defendant had used a computer to print out images of child
pornography); United States v. Mayo, 642 F.3d 628, 630, 632–33 (8th Cir. 2011)
(similar). But see United States v. Osman, 929 F.3d 962, 964, 966–67 (8th Cir. 2019)
(finding no plain error with a special condition restricting computer use by a

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defendant who “operated a scheme to prepare false tax returns” using the internet).
When upholding such conditions for these offenses, we have looked to the
connection of the defendant’s illegal conduct, his history and characteristics, and the
internet, as well as considering whether the conditions are an outright bar on usage.
See Demers, 634 F.3d at 984–85; United States v. Trimble, 969 F.3d 853, 857 (8th
Cir. 2020). Under our precedent, Special Conditions 5 and 9 do not impose “an
absolute prohibition” on Smith’s ability to use computers, internet-connected
devices, or social media. See Trimble, 969 F.3d at 857; United States v. Notman,
831 F.3d 1084, 1089 (8th Cir. 2016).
Applying the same test used in child pornography offenses cases, we would
next consider the extent of the nexus between the internet and Smith’s offense
conduct and his history and characteristics and affirm the restriction if the connection
is substantial enough. See Demers, 634 F.3d at 984–85. But this test risks
insufficiently protecting a defendant’s rights where, as here, the nexus between the
conduct and the internet consists of lawful activity. In the typical child pornography
case where these conditions are imposed, a defendant’s usage of computers and the
internet in his crime involves unlawful conduct — obtaining and distributing child
pornography. See id. Likewise, in the sole case we have found where we affirmed
these types of special conditions outside of the child pornography or sex crimes
context, the online conduct motivating the restriction was also illegal — running a
scheme for filing false tax returns. See Osman, 929 F.3d at 964, 966–67. Such cases
recognize that once a defendant demonstrates a history of using the internet or social
media to commit serious crimes — such as distributing child pornography, recruiting
others to join designated terrorist groups, or operating a criminal scheme online — a
district court can conclude that a condition requiring pre-approval and monitoring of
internet usage while on supervised release is reasonably related to the sentencing
factors and no greater deprivation than necessary to achieve sentencing aims. See
id. at 966–67; Demers, 634 F.3d at 984–85; United States v. Amin, 85 F.4th 727,
731–32, 735, 738 (4th Cir. 2023) (involving a defendant who provided material
support to ISIS). In contrast, here, the conduct cited by the government to justify
these special conditions — Smith’s expression of his interest in violence and hatred

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of various groups — is offensive but does not violate the law. The same is true of
him researching and viewing mass shootings or searches related to white
supremacist or terrorist groups. While this conduct is troubling paired with Smith’s
acquisition of auto sears, this online activity does not justify depriving a defendant’s
future ability to access the internet or social media without prior approval of
probation or a court. Otherwise, a defendant’s exercise of his First Amendment
rights could be used to justify depriving him of those rights while on supervised
release.
Based on our review of the record, the district court did not find that Smith
had violated any laws based on his online activity. Similarly, the government did
not argue or present evidence that Smith’s online and social media conduct was
criminal. Rather, it asserted Smith could be subject to a pre-approval restriction
because he “deeply held several extreme views” and “used electronic devices to
connect with like-minded others and disseminate extremism.” No matter how
abhorrent Smith’s views may be, having such positions and discussing them with
others is not a proper justification for substantially burdening his ability to exercise
constitutional rights by requiring pre-approval from the government before he can
access a computer, the internet, or social media. We therefore conclude that the
requirement in Special Conditions 5 and 9 to seek approval from probation and the
district court before using a computer, the internet, or social networking constitute a
greater deprivation than is reasonably necessary to advance sentencing aims. See
United States v. West, 829 F.3d 1013, 1021–22 (8th Cir. 2016).
Nevertheless, given the concerning and unusual facts here, including Smith’s
offense conduct, his online activities, and the threat Smith poses to the public, we
conclude Special Conditions 5 and 9 can be modified to comply with 18 U.S.C.
§ 3583(d). In addition to requiring pre-approval, Special Condition 5 required the
use of monitoring programs and authorized random searches of Smith’s computer
devices. Based on the district court’s findings, the aspect of the condition related to
monitoring and searches is not unduly burdensome on Smith. Smith extensively
used the internet and social media applications to discuss his violent ideation and to

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view and share content related to mass shootings, violence against individuals,
homemade explosives, and how to convert a semiautomatic rifle into a fully
automatic one. Using a computer, Smith made his screen capture video in which he
stated he was “going to shoot up” the Mall of America and searched “mall of
America metal detectors.” He also used the internet to research law enforcement
shootings, which he explained he did to “learn[] about [his] enemy,” as well as mass
shootings. The district court concluded this showed the role the internet and social
media played in driving Smith’s “violent ideation against certain groups of people,
including law enforcement,” which it believed was likely leading towards violent
actions if not for his arrest. In other words, the district court viewed the internet and
social media as playing a key role in why Smith was interested in obtaining auto
sears and grenades and in helping him plan how to use them to cause violence. Thus,
access to the internet and social media amplified the district court’s concerns about
recidivism and harm to the general public, which are appropriate sentencing
considerations. The district court did not clearly err by seeing a significant link
between the internet, social media, and Smith’s potential to inflict physical violence,
despite the lawfulness of his online activities. Combining these facts, Smith’s
repeated vows to obtain firearms which he needed “for illegal purposes” and to “go[]
up against the U.S. government and its entirety,” and other indications that he was
untrustworthy, the district court did not err by imposing the monitoring and
searching portions of Special Condition 5. For related reasons, we believe a
modified version of Special Condition 9 may withstand scrutiny, such as requiring
Smith to disclose social media accounts that he is able to access to enable his
probation officer to monitor his activities on social media. Rather than modifying
these conditions ourselves, we vacate Special Conditions 5 and 9 and remand this
matter to the district court.
Finally, we consider Special Condition 8, which instructs Smith to “not
possess, view, access, or otherwise use material that reflects extremist or terroristic
views or as deemed to be inappropriate by the U.S. Probation Office.” We conclude
the district court abused its discretion by imposing this condition because it is more
restrictive than is reasonably necessary to accomplish the sentencing goals. Special

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Condition 8 is an absolute ban on certain materials without any mechanism for
obtaining prior approval. See United States v. Simons, 614 F.3d 475, 483–85 (8th
Cir. 2010). Moreover, the terms identifying what material is prohibited are broad
and not easily defined. What is “extremist” or “inappropriate” can be intensely
debated, making it difficult for Smith to know what he is allowed to possess and
view and what he cannot. When such vague and overbroad conditions implicate
First Amendment rights, we do not “entrust the task of curing constitutional infirmity
for each individual application of the condition to the probation office.” See United
States v. Kelly, 625 F.3d 516, 521 (8th Cir. 2010). Thus, we have rejected special
conditions that imposed a broad ban on a defendant convicted of possessing child
pornography from possessing any material containing nudity or alluding to sexual
activity, as opposed to a narrower restriction on possessing pornography. See id. at
519, 522; Simons, 614 F.3d at 483–85. Here too, an absolute ban on viewing or
possessing materials is not permissible unless the condition is narrowly tailored so
as to reasonably relate to an individual defendant, to provide clear parameters for
what is prohibited, and to avoid substantially restricting First Amendment rights. A
ban on anything probation deems inappropriate is unduly burdensome, vague, and
unsupportable based on the facts here. We therefore vacate Special Condition 8.
III. Conclusion
We affirm Smith’s sentence of 80 months of imprisonment, vacate Special
Conditions 5, 8, and 9, and remand for resentencing consistent with this opinion.
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