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

                                                                            FILED
                                                                        December 11, 2007

                                       No. 07-50098                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff–Appellee
v.

DONALD LEE LOVELACE

                                                  Defendant–Appellant



                   Appeal from the United States District Court
                        for the Western District of Texas
                              No. 4:01-cr-2220-ALL


Before DAVIS, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
       Donald Lee Lovelace appeals the revocation of his supervised release,
arguing (1) that the condition he allegedly violated, which forbade him from
associating with other felons, was impermissibly vague and (2) that he did not
have actual notice that writing letters to a convicted felon constituted
associating with a felon. We affirm the district court’s revocation.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                     No. 07-50098

                                            I
      Donald Lee Lovelace pleaded guilty to knowing possession of child
pornography in violation of 18 U.S.C. § 2252A(5)(B). Lovelace was sentenced to
sixty months’ imprisonment followed by three years’ supervised release.
Lovelace’s supervised release included the following standard condition:1 “The
defendant shall not associate with any persons engaged in criminal activity, and
shall not associate with any person convicted of a felony unless granted
permission to do so by the Probation Officer.” Lovelace’s term of supervised
release began November 10, 2005.
      On December 6, 2006, Lovelace’s probation officer notified the district
court that Lovelace had violated the terms of his supervised release when he
wrote at least two letters to Kevin Pacheco, an inmate at the Federal
Correctional Institute in Fort Worth, Texas and Lovelace’s former cellmate. In
these letters, Lovelace discussed participating in sexual acts with minor males
and included a photograph of an underage boy. Lovelace was subsequently
arrested, and the Government filed a motion seeking the permanent revocation
of Lovelace’s supervised release. Lovelace moved to dismiss the Government’s
motion.
      At a hearing Lovelace conceded that he had written the letters without his
probation officer’s permission, but he argued the court failed to inform him that
writting letters constituted “association” as the conditions of his supervised
release prohibited. Without “fair notice” of the range of prohibited conduct,
Lovelace argued a revocation constituted a violation of his due process rights.
      The district court disagreed and held that the term “associate” is “a term
of common knowledge . . . [and] that it means not only to have personal
association but also to associate by mails, by email, by telephone.” The court



      1
          UNITED STATES SENTENCING GUIDELINES (U.S.S.G.) § 5D1.3(c)(9).

                                            2
                                        No. 07-50098

found that Lovelace had violated the conditions of his supervised release when
he wrote Pacheco.          The court revoked Lovelace’s supervised release and
sentenced him to four months’ imprisonment followed by thirty-two months’
supervised release. Lovelace timely filed his notice of appeal.
                                              II
      On appeal, Lovelace raises two issues. First, he argues that the condition
prohibiting associating with convicted felons is impermissibly vague. Second,
he contends the district court abused its discretion when it revoked his
supervised release, because the Government failed to prove Lovelace had actual
notice that writing a convicted felon violated the supervision conditions.
                                               A
      Lovelace argues that the written terms of supervised release failed to
provide him with “fair notice” of proscribed conduct, and thus violated his due
process rights.         Specifically, Lovelace contends the condition prohibiting
association with a felon does not define “associate” or specify what conduct
constitutes association. Therefore, he argues, the term is impermissibly vague
and a violation of due process.
      A district court has discretion crafting the terms and conditions of
supervised release.2 Ordinarily, this Court reviews those conditions for abuse
of discretion.3 In this case, the record does not indicate, nor does Lovelace
contend, that he objected to this condition at or after his sentencing. When a
defendant argues that a condition of supervised release is impermissibly vague
but has failed to object at or after the sentencing hearing, this court reviews for




      2
          United States v. Paul, 274 F.3d 155, 164 (5th Cir. 2001).
      3
          Id. at 165.

                                               3
                                         No. 07-50098

plain error.4 Reviewing case law from both this and other circuits, Lovelace’s
argument would fail even under a less deferential standard.
       “Restrictions on an offender’s ability to interact with particular groups of
people . . . must provide ‘fair notice’ of the prohibited conduct.”5 But conditions
may provide such notice “even if they are not precise to the point of pedantry.”6
Thus, sentencing courts may use “categorical terms” to prohibit specific
instances of conduct7 and these terms should be read in “a commonsense way”
to satisfy due process.8 To determine vagueness, this Court may examine
whether a reasonable person could predict prohibited conduct.9
       This Court has not interpreted whether the term “associate” provides fair
notice regarding prohibited conduct, but other circuits have held as a general
matter that the term “associate,” as used in conditions of supervised release or
parole, is not impermissibly vague. In United States v. Soltero,10 the Ninth
Circuit rejected Soltero’s challenge to a condition of his supervised release
prohibiting “associat[ion] with any known member of any criminal street gang.”11
Specifically, Soltero argued the term “associate” was impermissibly vague and
that it could cover incidental contact. The Ninth Circuit disagreed. Noting the


       4
           United States v. Phipps, 319 F.3d 177, 192 (5th Cir. 2003).
       5
           Paul, 274 F.3d at 166 (citing United States v. Loy, 237 F.3d 251, 262 (3d Cir. 2001)).
       6
           Id at 167.
       7
           Id.
       8
           Id. at 166-67.
       9
         See Paul, 274 F.3d at 166 (noting that the potential vagueness of a condition
prohibiting a convicted person from visiting places frequented by minors can be determined by
examining whether a reasonable person could predict which specific locations the defendant
could visit).
       10
            2007 WL 3037348 (October 19, 2007).
       11
            Id. at *5 (internal quotation marks omitted).

                                                4
                                         No. 07-50098

Supreme Court has excluded “incidental contact” from the term “association,”12
the Soltero court held “with this limitation, men of common intelligence need not
guess at the meaning of association”13—suggesting that non-incidental, i.e.
purposeful, contact constitutes association.
       Similarly, the Second Circuit has held that the term “associate” is not
impermissibly vague in the context of a parole condition forbidding a parolee
from “associat[ing] with persons who have a criminal record.”14 That court noted
that while “associate” does not include incidental encounters or contact, it does
mean “[t]o join[,] often[] in a loose relationship as a partner, fellow worker,
colleague, friend, companion or ally.”15
       Since the Supreme Court ruled that incidental contact between ex-convicts
working for a common employer does not run afoul of conditions restricting
association,16 other courts have emphasized the distinction between accidental
or unavoidable contact and purposeful or deliberate contact.17 While these cases
do not specifically hold that written communication constitutes association, they
clearly indicate that “associate” encompasses types of contact less formal than


       12
            Arciniega v. Freeman, 404 U.S. 4, 4 (1971).
       13
            Soltero, 2007 WL 3037348 at *5 (internal quotation marks omitted).
       14
         Birzon v. King, 469 F.2d 1241, 1242-43 (2d Cir. 1972). See also United States v. Shiff,
876 F.2d 272, 276 (2d Cir. 1989) (holding as permissible a condition prohibiting tax evader
from associating with groups that advocate non-compliance with U.S. tax laws).
       15
        Birzon, 469 F.2d at 1243 n. 3 (citing WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY).
       16
            Arciniega, 404 U.S. at 4.
       17
          See, e.g., United States v. Ferruccio, Nos. 95-4281, 96-3612, 1997 WL 137374, at *2
(6th Cir. Mar. 25, 1997) (holding that defendant’s meetings with convicted felons were “more
than ‘incidental contacts’”); United States v. Albanese, 554 F.2d 543, 546 n. 5 (2d Cir. 1977)
(noting that “association” requires more than “merely a fleeting or casual acquaintance”). Cf.
United States v. Loy, 237 F.3d 251, 269 (3d Cir. 2001) (noting that while associational
conditions do not extend to casual or chance meetings, defendants’ deliberately seeking contact
with minors would run afoul of condition prohibiting defendant from contact with minors).

                                                5
                                         No. 07-50098

face-to-face meetings with explicit agreement to join together in common
purpose. We agree with these cases, and we hold that the term “associate” as
used in the supervision condition at issue is not impermissibly vague.
      This conclusion is bolstered by analogous cases within this Circuit. In
United States v. Garcia-Mejia,18 the defendant challenged as impermissibly
vague a supervised release condition prohibiting him from possessing
“dangerous weapons.”19 He argued the condition failed to provide “fair notice,”
because he was unable to ascertain with reasonable certainty the type of conduct
the condition proscribed.20 This Court held that the term was not impermissibly
vague and said that Garcia-Mejia “[would] violate his supervised release only by
possessing a ‘dangerous weapon’ in a context in which, by the dictates of common
sense, that ‘dangerous weapon’ has no legitimate, everyday use.”21 For example,
the court noted Garcia-Mejia would not violate the condition by using a steak-
knife at a restaurant but would violate the condition if he carried the steak-knife
as protection.
      Similarly, in Phipps, the defendants challenged as impermissibly vague
a condition of supervised release that prohibited them from possessing “sexually
oriented or sexually stimulating materials” or “patroniz[ing] any place where
such material or entertainment is available.”22 The defendants argued that the
condition could prohibit possession of newspapers that contained lingerie
advertisements or “even . . . the ‘Song of Solomon.’”23 This Court held that,


      18
           394 F.3d 396 (5th Cir. 2004) (judgment vacated on other grounds).
      19
           Id. at 397-98.
      20
           Id. at 398.
      21
           Id.
      22
           Phipps, 319 F.3d at 192-93.
      23
           Id.

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                                        No. 07-50098

under the commonsense approach required by Paul, the condition was not
impermissibly vague and prohibited the possession of sexually explicit materials
of the type found at adult bookstores or adult theaters, not publications or
materials with incidental sexual content.
      As to Lovelace’s specific argument that it is unclear whether written
correspondence constitutes association, the condition at issue, and others like it,
are imposed to protect the public, encourage defendant rehabilitation, and deter
future criminal acts.24 In addition to the condition prohibiting association,
Lovelace was prohibited from having contact with children, accessing the
Internet, or possessing photographic equipment and was required to participate
in mental health and sex offender treatment programs and to comply with the
Texas Sexual Offender Registration Program. In light of those requirements and
the statutory purpose of the supervision conditions, we are skeptical of his
argument that a commonsense interpretation of the term “associate” in this
context      might     exclude      recurrent      written   communication   between
felons—particularly written communication regarding the sexual exploitation
of children.
      Using the common-sense approach dictated by Paul, we hold the term
“associate” provided Lovelace with fair notice at sentencing regarding prohibited
conduct. At a minimum, the condition at issue would prohibit intentionally
writing multiple letters to a known felon. The condition is not impermissibly
vague.
                                               B
      Lovelace next contends that the district court abused its discretion by
revoking his supervised release. He argues that the Government failed to prove
that he had actual notice that writing his former cellmate, a convicted felon,



      24
           See 18 U.S.C. §§ 3583(d)(1) & 3553(a)(1)-(2).

                                               7
                                        No. 07-50098

violated the terms of supervision.            A district court may revoke a term of
supervised release after finding by a preponderance of the evidence that the
defendant violated a condition of that release.25 This Court reviews the district
court’s decision for abuse of discretion.26
      In order to ensure “actual notice,” a district court shall direct a probation
officer to provide the defendant with written notice setting forth the conditions
of supervised release27 and to instruct the defendant as to those conditions.28
Generally, in reviewing actual notice claims, this court first examines whether
the defendant received from the probation officer written notice of the supervised
release terms. Nonetheless, failure to provide such notice does not automatically
invalidate revocation if the defendant had actual notice of the conditions.29
      Lovelace does not contend, nor does the record indicate, that the
Government failed to meet the statutory notice requirements. Moreover, at
Lovelace’s original sentencing in 2001, the district court informed him that he
needed to comply with both the standard and special terms of supervised release,
which the written judgment enumerated. Lovelace, thus, had actual notice of
the supervised release terms. Given our analysis discussed above,30 we reject
Lovelace’s further argument that he lacked actual notice that written
communication constituted association.




      25
           18 U.S.C. § 3583(e)(3).
      26
           United States v. Grandlund, 71 F.3d 507, 509 (5th Cir. 1995).
      27
           18 U.S.C. § 3583(f).
      28
           18 U.S.C. § 3603(1).
      29
           United States v. Arbizu, 431 F.3d 470, 471 (5th Cir. 2005).
      30
           See supra Part II.A.

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No. 07-50098

    III




     9
                                 No. 07-50098

      This Court concludes that the standard supervised release condition at
issue, and specifically the term “associate,” is not impermissibly vague and that
Lovelace had actual notice that the condition prohibited him from intentionally
writing letters to a convicted felon. We therefore AFFIRM the district court’s
revocation of Lovelace’s supervised release.




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