     Case: 12-10162       Document: 00512247902         Page: 1     Date Filed: 05/20/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           May 20, 2013

                                       No. 12-10162                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff – Appellee
v.

TODD WAYNE ELLIS,

                                                  Defendant – Appellant



                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 2:11-CR-35-1


Before JOLLY, GARZA, and OWEN, Circuit Judges.
PER CURIAM:*
       Todd Wayne Ellis pleaded guilty to possession of child pornography in
violation of 18 U.S.C. § 2252(a)(4)(B), (b)(2). He appeals several conditions of his
supervised release. We AFFIRM.
                                              I
           As a result of a lead from a different investigation, law enforcement
agents downloaded videos depicting child pornography through a peer-to-peer
network and discovered Ellis’s computer was the source of the videos. Law

       *
        Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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enforcement agents then executed a search warrant of Ellis’s residence while
Ellis was present. Ellis admitted his use of the peer-to-peer network for child
pornography.
      The agents interviewed Ellis’s 19-year-old nephew, R. Brecheisen, while
conducting the search. Brecheisen, who along with his immediate family resided
in another home on Ellis’s property, revealed that Ellis molested him on the
property when he was 12 or 13 years old. Brecheisen also revealed Ellis
molested his cousin and another boy. Brecheisen’s father then corroborated
these statements and added that Ellis molested Brecheisen’s brother along with
the other boys when they were all 12 or 13 years old. In addition, the agents
found dozens of videos and images depicting child pornography on Ellis’s
computer.
      Ellis was charged with one count of receipt and distribution of child
pornography and one count of possession of child pornography. He pleaded
guilty to only the possession charge pursuant to a plea agreement.          His
pre-sentence report (“PSR”) indicated he is certified as a registered
polysomograph technician and was previously employed in that capacity. The
PSR also indicated Ellis reported he was sexually abused as a child but never
received counseling. The PSR included Brecheisen’s and Brecheisen’s father’s
allegations, to which Ellis objected as untrue in his written objections to the
PSR. In an addendum, the PSR indicated that Brecheisen told the agents he
installed a lock on his door at age 17 because of his apprehension of Ellis’s
continued sexual propositions. The probation officer who prepared the PSR
contacted Brecheisen, who confirmed the abuse but refused to elaborate further.




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      At sentencing, Ellis objected to the testimony of the officer who
interviewed Brecheisen and his father on hearsay and Confrontation Clause
grounds. The district court overruled the objection and the agent testified that
Brecheisen said the abuse occurred on several occasions, included Ellis touching
Brecheisen’s genitals and engaging in oral sex, and continued for a long time.
The agent testified that Brecheisen said Ellis propositioned him when he was 17
years old and made a sexually explicit comment to him when he was 18 years
old, and, as a result, Brecheisen put a lock on his door. The district court
sentenced Ellis to the statutory maximum of 120 months of incarceration and a
lifetime of supervised release.
     The district court imposed seven conditions of supervised release that are
relevant to this appeal. They are as follows:
              The defendant shall participate in sex offender treatment
      services as directed by the probation officer until successfully
      discharged. These services may include psycho-physiological testing
      (i.e. clinical polygraph, plethysmograph, and the ABEL screen) to
      monitor the defendant’s compliance, treatment progress, and risk to
      the community. The defendant shall contribute to the costs of
      services rendered (copayment) at a rate of at least 5.00 per month.
            The defendant shall have no contact with persons under the
      age of 18, including by correspondence, telephone, internet,
      electronic communication, or through third parties. The defendant
      also shall not have access to or loiter near school grounds, parks,
      arcades, playgrounds, amusement parks or other places where
      children may frequently congregate. The defendant shall neither
      seek nor maintain employment or volunteer work at any location
      and/or activity where persons under the age of 18 congregate,
      without prior permission of the probation officer. Furthermore, the
      defendant shall not date or befriend anyone who has children under
      the age of 18, without prior permission of the probation officer.



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            The defendant shall not have any form of unsupervised
      contact with persons under the age of 18 at any location, including
      but not limited to, the defendant’s residence, place of employment,
      and public places where minors frequent or congregate, without
      prior permission of the probation officer.
            The defendant shall neither possess nor have under his/her
      control any sexually oriented, or sexually stimulating materials of
      adults or children. This may include visual, auditory, telephonic,
      electronic media, email, chat communications, instant messaging,
      or computer programs. The defendant shall not patronize any place
      where such material or entertainment is available. The defendant
      shall not use any sex-related telephone numbers.
             The defendant shall not possess, have access to, or utilize a
      computer or internet connection device including, but not limited to
      Xbox, PlayStation, Nintendo, or similar device without permission
      of the court.
             The defendant shall participate in mental health treatment
      services as directed by the probation officer until successfully
      discharged. These services may include medications prescribed by
      a licensed physician. The defendant shall contribute to the costs of
      services rendered (copayment) at a rate of at least $5.00 per month.
      The district court stated lifetime supervised release “will ensure that
[Ellis] compl[ies] with the sex offender registration law and not have access to
children” and “[s]ex offender and treatment conditions are recommended because
of the nature of the offense.”     Ellis’s counsel objected “[t]o the lifetime of
supervision and the conditions therein as being excessive,” which the district
court overruled. Ellis timely appealed.
                                        II
      We review substantive reasonableness challenges to conditions of
supervised release for abuse of discretion. United States v. Miller, 665 F.3d 114,
126 (5th Cir. 2011). “To preserve error, an objection must be sufficiently specific


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                                  No. 12-10162

to alert the district court to the nature of the alleged error and to provide an
opportunity for correction.” United States v. Neal, 578 F.3d 270, 272 (5th Cir.
2009). If an error was not preserved, our review is for plain error so “we must
determine (1) if there was error, (2) if it was plain, (3) if the error affects
substantial rights, and (4) if allowing that error to stand seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” United States
v. Alvarado, 691 F.3d 592, 598 (5th Cir. 2012).
                                        III
      A district court’s discretion in imposing conditions of supervised release,
though extensive, is subject to statutory requirements. United States v. Paul,
274 F.3d 155, 164 (5th Cir. 2001). The conditions of supervised release must be
related to one of four factors: (1) “the nature and circumstances of the offense
and the history and characteristics of the defendant;” (2) “the need . . . to afford
adequate deterrence to criminal conduct;” (3) “the need . . . to protect the public
from further crime of the defendant;” and (4) “the need . . . to provide the
defendant with needed educational or vocational training, medical care, or other
correctional treatment in the most effective manner.” 18 U.S.C. §§ 3583(d)(1),
3553(a)(1) and (2)(B)–(D); United States v. Weatherton, 567 F.3d 149, 153 (5th
Cir. 2009) (explaining a condition of release “must be reasonably related to one
of four factors”).   In addition, the conditions may not impose a “greater
deprivation of liberty than is reasonably necessary for the purposes set forth in”
§ 3553(a). 18 U.S.C. § 3583(d)(2). Ellis appeals the conditions recounted above,
and we address each in turn.




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                                  No. 12-10162

                                         A
      Ellis appeals six conditions on the grounds that they are not reasonably
related to the § 3553(a) factors and are a greater depravation of liberty than
necessary under § 3583(d)(2). Because Ellis objected before the district court,
our review is for abuse of discretion. Miller, 665 F.3d at 126. We are not
convinced any of his challenges on these grounds have merit.
      First, Ellis appeals the special condition that he not “possess, have access
to, or utilize a computer or internet connection device . . . without prior approval
of the court.” Contrary to Ellis’s concern in his brief, modern devices such as
cars and appliances do not come under the purview of the ban because the
categorical term “computers” is subject to a “commonsense understanding of
what activities the categor[y] encompass[es].” Paul, 274 F.3d at 167. However,
restrictions on Internet and computer use are often imposed in cases involving
child pornography, and this circuit has routinely upheld such restrictions. E.g.
Miller 665 F.3d at 126, 133–34 (holding district court did not abuse discretion
in imposing twenty-five year ban on computer use without probation office
approval); see also U.S. SENTENCING GUIDELINES MANUAL § 5D1.3(d)(7)(B) (2011)
(“A condition limiting the use of a computer or an interactive computer service
[is recommended] in cases in which the defendant used such items.”).
      Second, Ellis appeals the condition requiring him to “have no contact with
persons under the age of 18, including by correspondence, telephone, internet,
electronic communication, or through third parties.” This circuit has affirmed
bans on contact with children. E.g. United States v. Rodriguez, 558 F.3d 408,
417–18 (5th Cir. 2009) (affirming three-year prohibition on unsupervised contact
with children, including the defendant’s own daughter); United States v.


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Buchanan, 485 F.3d 274, 287–88 (5th Cir. 2007) (affirming three-year ban on
unsupervised contact with children without exception for permission from
probation officer). Ellis’s ban does not contain an exception for permitted contact
and is, along with the other conditions, for life. Importantly, however, it
references activities by which Ellis could initiate and carry on regular contact
with children. By contrast, the condition in the subsequent paragraph, which
prohibits “unsupervised contact . . . at any location” without permission, makes
clear that Ellis may in fact request permission from his probation officer for
incidental contact in locations such as his place of work should the need arise.
      Third, Ellis appeals the condition that prohibits him from “access to or
loiter[ing] near school grounds, parks, arcades, playgrounds, amusement parks,
or other places where children may frequently congregate” and from “seek[ing]
or maintain[ing] employment or volunteer work at any location . . . where
persons under the age of 18 congregate, without prior permission of the
probation officer.” Although it is true there is no evidence Ellis targeted children
in public places, his crime and the evidence of past molestation is sufficient
reason for the district court to be concerned with his access to children absent
permission. See Paul, 274 F.3d at 167 (“The supervised release conditions
restricting Paul’s contact with minors . . . are reasonably necessary in light of the
nature and circumstances of Paul’s offense and the legitimate need to prevent
recidivism and protect the public.”).
      Fourth, Ellis appeals as not related to public safety the condition that he
not “date or befriend anyone who has children under the age of 18, without prior




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                                     No. 12-10162

permission of the probation officer.”1 This restriction is reasonably related to
public safety because “Congress has made clear that children . . . are members
of the public it seeks to protect.” Rodriguez, 558 F.3d at 417. Even though the
conditions contain separate restrictions on contact with minors, the evidence
showed Ellis has a proclivity to use close relationships to reach children, as he
reached Brecheisen and his brother through his relationship with their family.
Therefore, restricting his contact with other adults who have minor children is
related to public safety. Cf. United States v. Wolf Child, 699 F.3d 1082, 1099
(9th Cir. 2012) (holding restriction on contact with defendant’s own children and
his fiancee who has minor children substantively unreasonable but stating “if a
defendant has a proclivity for sexual violations of familial relationships . . . such
a condition may be appropriate”).
      Fifth, Ellis appeals the condition prohibiting him from possessing sexually
stimulating material because the ban could encompass works of art and
literature and prevent him from patronizing establishments such as grocery
stores that may sell such material. This circuit has repeatedly stated conditions
of supervised release, including “sexually oriented or sexually stimulating
materials,” should “be read in a commonsense way.” United States v. Phipps,
319 F.3d 177, 193 (5th Cir. 2003) (citing Paul, 274 F.3d at 166–67). “Such a
construction compels us to disagree with defendants’ suggestion that the
condition could apply to newspapers and magazines that contain lingerie
advertisements or even to the ‘Song of Solomon.’ Moreover, the prohibition on
patronizing sexually oriented establishments refers, with sufficient precision, to


      1
       Ellis appeals this condition on vagueness grounds as well, which we address below.
See Part III.B ante.

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                                  No. 12-10162

places such as strip clubs and adult theaters or bookstores.” Phipps, 319 F.3d
at 193. The same “commonsense” understanding applies here. Id.
      In addition, Ellis asserts this condition is not reasonably related to his
offence. Because Ellis’s crime was sexual in nature it was reasonable for the
district court to restrict Ellis’s access to sexually stimulating material more
broadly in an effort to prevent future crimes or aid in his rehabilitation. See
United States v. Boston, 494 F.3d 660, 668 (8th Cir. 2007) (“Given Boston’s
history of sexual offenses and the desire to deter him from this conduct in the
future, the condition in prohibiting his access to sexually explicit material
involving adults is not overly broad.”); see also Miller, 665 F.3d at 136 (holding,
where defendant’s videos included both children and adults and condition
forbade access to adult pornography, “[e]ven were we to review for an abuse of
discretion . . . the district court would not have abused its discretion”).
      Sixth, Ellis appeals the condition requiring him to participate in mental
health and sex offender treatment programs, particularly the possibility he
might be required to submit to psychotropic medication and psycho-physiological
testing, including penile plethysmographic testing. This challenge is not ripe for
review because Ellis may never be subjected to such medication or testing. See
United States v. Carmichael, 343 F.3d 756, 761 (5th Cir. 2003). If he is required
to submit to such medication or testing, he may petition the district court for a
modification of his conditions. 18 U.S.C. § 3583(e)(2); FED. R. CRIM. P. 32.1(c);
see United States v. Rhodes, 552 F.3d 624, 628–29 (7th Cir. 2009) (“As the
condition is stated, there is a fair amount of discretion regarding the techniques
to be utilized. . . . [W]e would do well to await a more concrete presentation of




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                                         No. 12-10162

the issue. Regardless, Rhodes can later petition the district court to modify the
condition.” (citations omitted)).
       In addition, Ellis appeals on the ground that the cumulative effect of all
these conditions is a greater depravation of liberty than necessary. This circuit
has repeatedly stated that the district court is in a far better position to
determine the proper terms of supervised release, provided it does so within its
statutory authority. See United States v. Mondragon-Santiago, 564 F.3d 357,
360–61 (5th Cir. 2009). Moreover, since we have determined that none of these
conditions are unreasonable, their cumulative effect is not unreasonable.
Accordingly, we decline to hold the district court abused its discretion.
                                                B
       Ellis appeals the condition that he not “date or befriend anyone who has
children under the age of 18, without prior permission of the probation officer”
on vagueness grounds. The Government does not defend this condition in its
brief. Because he did not object on vagueness grounds before the district court,
our review is for plain error. Alvarado, 691 F.3d at 598.
       While a condition need not spell out in excruciating detail the prohibited
conduct, “[r]estrictions on an offender’s ability to interact with particular groups
of people . . . must provide fair notice of the prohibited conduct.” Paul, 274 F.3d
at 166 (internal quotation marks omitted). With that in mind, we hold any error
in imposing this condition is not plain because it is not “clear or obvious.”2
United States v. Wilcox, 631 F.3d 740, 752 (5th Cir. 2011); cf. United States v.


       2
        Had Ellis objected in the first instance, it is clear at least the term “befriend” is vague
and may have been subject to vacatur and remand to the district court for greater specificity.
The district court, in its sole discretion, may want to consider rephrasing this condition with
greater specificity to avoid any future questions.

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                                 No. 12-10162

Reeves, 591 F.3d 77, 81 (2d Cir. 2010) (holding it is “impossible to agree on the
proper application of a release condition triggered by entry into a ‘significant
romantic relationship.’ What makes a relationship ‘romantic,’ let alone
‘significant’ in its romantic depth, can be the subject of endless debate that
varies across generations, regions, and genders.”). “[A]ppellate courts give
considerable deference to the judgment of the district court when conducting
plain error review.” Wilcox, 631 F.3d at 751–52. Accordingly, we hold the
district court did not commit plain error in imposing this condition.
                                       IV
      Ellis asserts his Confrontation Clause rights were violated because the
district court sentenced him based on testimonial hearsay statements made by
his nephew to law enforcement agents without affording Ellis an opportunity to
cross-examine his nephew. U.S. CONST. amend VI. This assertion is foreclosed
by our precedent. United States v. Mitchell, 484 F.3d 762, 776 (5th Cir. 2007)
(holding Confrontation Clause does not apply at sentencing and district court
may rely on hearsay).
                                       V
      Ellis asserts his sentence is substantively unreasonable because the
applicable Guideline lacks an empirical basis and regularly produces sentences
that are higher than necessary to achieve the goals specified in § 3553(a). U.S.
SENTENCING GUIDELINES MANUAL § 2G2.2 (2011). This issue is foreclosed by our
precedent. Miller, 665 F.3d at 121 (“Empirically based or not, the Guidelines
remain the Guidelines.”); United States v. Duarte, 569 F.3d 528, 529–31 (5th Cir.
2009) (rejecting the notion that this court should examine empirical basis behind
each Guidelines provision before applying presumption of reasonableness).


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                           No. 12-10162

                                VI
  For these reasons, we AFFIRM.




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