UNITED STATES of America, Plaintiff-Appellee v. Derek Isaac ALLMON, Sr., Defendant-Appellant, 702 F.3d 1034

BEAM, Circuit Judge. Derek Alimón appeals the district court’s order modifying his communication restriction imposed pursuant to 18 U.S.C. § 3582(d). Alimón argues the district court did not have jurisdiction to make such a modification without a motion from the Director of the Bureau of Prisons (“BOP”) or the United States attorney, and there was not probable cause to justify the modification under § 3582(d). We vacate the district court’s March 15, 2010, order, and all subsequent orders to the extent they enforce the restrictions imposed by the March 15, 2010, order. I.

BACKGROUND On April 4, 2006, a jury convicted Alimón on multiple counts for his involvement in a drug trafficking operation and a conspiracy to kill a witness. On June 15, 2006, he was sentenced to imprisonment for life. Four days after sentencing, the district court granted the government’s motion to restrict Allmon’s mail privileges by prohibiting him from communicating directly or indirectly with 29 named individuals and requiring that all communications directed to the persons listed in the order be confiscated and forwarded to the United States Attorney for the Eastern District of Arkansas.

Alimón appealed his sentence, and we affirmed the district court’s judgment. United States v. Alimon, 500 F.3d 800, 808 (8th Cir.2007). Alimón did not appeal the communication restriction. On November 13, 2007, Alimón asked the district court to amend its order restricting his communications. Alimón requested the court modify its order so that he could communicate with his daughter, Modesti, and his brother, Kevin Alimón. The district court granted Allmon’s request on March 12, 2008. On March 15, 2010, the district court sua sponte ordered more stringent restrictions on Allmon’s communications.

The district court noted that Alimón attempted to circumvent, and in at least one instance did circumvent, its original order restricting his communications.

Acting under § 3582(d), the district court ordered that Alimón “communicate, via mail or phone, with only his counsel of record”; that All-mon’s “[cjounsel of record may distribute legal materials to third parties only for the purpose of providing necessary legal services related to Defendant’s post-sentencing proceedings”; and finally, that Alimón “may not receive the Arkansas Democrat Gazette, nor any other publication from central Arkansas.” In its order, the district court weighed Allmon’s First Amendment rights against the interest of protecting human lives and concluded that these more stringent restrictions were necessary.

Alimón filed numerous pro se motions, including a motion for reconsideration, objecting to the district court’s March 15, 2010, order. On February 25, 2011, the district court, after detailing its reasoning for the heightened restrictions, concluded its restrictions remained in effect, except Alimón could subscribe to magazines and newspapers excluding the Arkansas Democrat Gazette. Thereafter, the district court continued to deny Allmon’s numerous challenges to the March 15, 2010, order. The district court issued its final denial on January 12, 2012. Alimón appeals.

Alimón argues that the district court did not have jurisdiction to sua sponte further restrict his communications, and that there was not probable cause, as required by § 3582(d), to support the district court’s order. II. DISCUSSION Alimón argues that the district court did not have jurisdiction to add a communication restriction without a motion from the Director of the BOP or the United States attorney. Sentencing courts may impose communication restrictions under 18 U.S.C. § 3582(d): The court, in imposing a sentence to a term of imprisonment upon a defendant convicted of a felony set forth in

chapter 95 (racketeering) or 96 (racketeer influenced and corrupt organizations) of this title or in the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 801 et seq.), or at any time thereafter upon motion by the Director of the Bureau of Prisons or a United States attorney, may include as a part of the sentence an order that requires that the defendant not associate or communicate with a specified person, other than his attorney, upon a showing of probable cause to believe that association or communication with such person is for the purpose of enabling the defendant to control, manage, direct, finance, or otherwise participate in an illegal enterprise. (emphasis added).

The government argues that § 3582(

d) requires a motion only when the court, for the first time, imposes a restriction after sentencing has occurred. The government contends, therefore, that because the district court ordered the communication restriction at the initial sentencing, the court could act without a motion from the Director of the BOP or the United States attorney and modify its restrictions at anytime thereafter.

The government reads the statute as contemplating two scenarios: first, granting the district court the authority to add a communication restriction at the time of sentencing with or without a motion; and, second, requiring a motion only if the communication restriction is added for the first time after the initial sentencing. The government argues, then, that because the court issued the communication restriction at the initial sentencing, the district court retained jurisdiction to alter the restriction after sentencing at any time, without a motion.

Alimón, on the other hand, reads the statute as requiring a motion for further restriction at all times following the initial sentencing. We agree with Alimón. Whether § 3582(

d) requires a motion by the Director of the BOP or the United States attorney is a question of statutory

interpretation, a question of law that we review de novo. United States v. Harris, 574 F.3d 971, 972 (8th Cir.2009). “When interpreting a statute, we first look to its plain language. We examine the text of the statute as a whole by considering its context, object, and policy. When the words of a statute are unambiguous, then, this first canon is also the last: judicial inquiry is complete.” United States v. Mann, 701 F.3d 274, 284 (8th Cir.2012) (internal quotations and citations omitted). The plain language of § 3582(

d) is unambiguous.

Section 3582(

d) allows the sentencing court to include a communication restriction either when “imposing a sentence ... or at any time thereafter upon motion by the Director of the [BOP] or a United States attorney.” 18 U.S.C. § 3582(d). Accordingly, § 3582(

d) requires a motion by the Director of the BOP or a United States attorney when a communication restriction is imposed under § 3582(

d) after the initial sentencing, no matter whether the court is imposing the restriction the first time or modifying an already-existing restriction. Generally, sentencing courts have “almost unfettered discretion” in determining sentences. Mistretta v. United States, 488 U.S. 361, 364, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989); see, e.g., United States v. Ruelas-Mendez, 556 F.3d 655, 658 (8th Cir.2009) (noting the “considerable discretion available to a sentencing court” when considering 18 U.S.C. § 3553(

a) factors); United States v. Mosley, 672 F.3d 586, 589 (8th Cir.2012) (noting sentencing courts’ broad discretion in setting terms of supervised release). Congress, however, “has the power to fix ... the scope of judicial discretion with respect to a sentence.” Mistretta, 488 U.S. at 364, 109 S.Ct. 647. With that power, Congress has limited sentencing courts’ authority after a sentence is imposed. United States v. Tingle, 524 F.3d 839, 840 (8th Cir.2008) (per curiam) (stating courts “may not modify a term of imprisonment once it has been imposed” (quotation omitted)); see also Wheeler v.

United States, 640 F.2d 1116, 1121 (9th Cir.1981) (“Generally, the trial judge has no authority over the defendant once [a] sentence has been entered.”).

Section 3582(

d) explicitly allows the sentencing court to impose a communication restriction “at some time other than sentencing.” Dolan v. United States, — U.S. -, 130 S.Ct. 2533, 2545, 177 L.Ed.2d 108 (2010) (Roberts, J. dissenting). It is clear that through § 3582(d), Congress has provided the sentencing court the authority to impose communication restrictions after sentencing, but the statute further states it may do so: “upon motion by the Director of the [BOP] or a United States attorney.” 18 U.S.C. § 3582(d). Thus § 3582(

d) requires a motion by the Director of the BOP or a United States attorney to invoke the district court’s authority to impose a communication restriction after sentencing. The sentencing court may not, upon its own motion, invoke this same authority. The government urges us to apply the Second Circuit’s reasoning employed in United States v. Felipe, 148 F.3d 101 (2d Cir.1998). There, Luis Felipe was convicted on several racketeering charges and sentenced to life imprisonment. Id. at 105-06.

As a part of his sentence, the district court imposed “special conditions of confinement,” including a restriction on Felipe’s ability to correspond with anyone except his attorney and close family members. Id. at 107. The district court later altered the communication restriction in response to Felipe’s motion to vacate and set aside the sentence, broadening the restriction to include a few additional individuals not previously contemplated by the restriction. Id. The court otherwise denied Felipe’s motion to vacate the sentence and the court also denied a later request by Felipe to have the restriction amended.

Id. Felipe appealed, claiming the district court did not have authority to implement such conditions of confinement and that the conditions violated his constitutional rights. Id. at 109. The Second Circuit concluded (1) that the sentencing court had the authority to impose the restrictions even though the order failed to enumerate each individual Felipe was prohibited from communicating with, and (2) the conditions did not violate his constitutional rights. Id. at 109-10. Felipe is distinguishable.

In Felipe, the sentencing court imposed the communication restriction at sentencing and altered the communication restriction in response to Felipe’s motion, rather than on its own motion, as is this case. Id. at 107.

Arguing that the district court retained jurisdiction to impose the restrictions at issue here, the government highlights the Second Circuit’s statement that the communication restrictions in Felipe were appropriate because “the same district judge has retained jurisdiction over Felipe’s case to consider either his [Felipe’s] or [the BOP’s] applications to modify the conditions on the basis of any change of circumstances or for any other just cause.” Id. at 111.

This statement, however, only highlights our own determination in this case — ■ that a district court may only alter a restriction already imposed upon motion by the Director of the BOP or a United States attorney. Here, the sentencing court imposed the restriction currently at issue upon its own motion, a situation not contemplated by Felipe. Our ruling in no way impacts a sentencing court’s inherent sentencing authority, nor does it infringe upon the BOP’s power. Rather, we apply § 3582(

d) as written. We recognize that Congress provided the sentencing court authority to issue a communication restriction post-sentencing, but also limited the sentencing court’s authority. We simply hold that the plain language of § 3582(

d) requires a motion from the Director of the BOP or a United States attorney in order to restrict an inmate’s communications at any time after sentencing. And because no such motion was filed, we decline to address Allmon’s final question, whether the evidence was sufficient to find the necessary probable cause to support further restriction on All-mon’s communication. III.

CONCLUSION For the forgoing reasons we vacate the district court’s March 15, 2010, order, and all subsequent orders to the extent they enforce the restrictions imposed by the March 15, 2010, order, leaving in place the district court’s amended order of March 12, 2008. . The district court relied on evidence submitted in another case, Alimón v. Bureau of Prisons, No. 08-cv-01183-ZLW-CBS, 2010 WL 2163773 (D.Colo. May 26, 2010). . Felipe may also stand for the proposition that a sentencing court may alter already-imposed restrictions upon motion by the defendant. 148 F.3d at 111.

However, because the restrictions currently challenged by Alimón were not imposed in response to All-mon’s motion, that is a matter we need not contemplate. . See, e.g., 28 C.F.R. § 540.15 which allows wardens to restrict an inmate's general correspondence.