     Case: 12-60894       Document: 00512428749         Page: 1     Date Filed: 11/04/2013




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

                                                                            FILED
                                                                         November 4, 2013
                                     No. 12-60894
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

TONY LASHAWN NELSON,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 1:12-CR-15-1


Before JONES, BARKSDALE, and HAYNES, Circuit Judges.
PER CURIAM:*
       Having pleaded guilty to failing to register as a sex offender under the Sex
Offender Registration and Notification Act, Tony Lashawn Nelson was sentenced
to 18 months imprisonment (he was released in June 2013), to be followed by ten
years supervised release. In addition to the standard conditions of supervision,
the court imposed special conditions; the following special conditions are
challenged on appeal: (1) participate in a program of mental-health treatment
specifically designed to treat sex offenders; (2) have no direct, or indirect, contact

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                  No. 12-60894

with any non-biological children under the age of 18 unless supervised by an
adult, pre-approved by the probation officer; (3) have no affiliation or
employment with any organization involved in activity that would place him in
direct contact with minors; and (4) avoid places minors are known to frequent,
without prior approval of the probation officer.
      Challenging both the procedural and substantive reasonableness of these
listed special conditions, Nelson first contends the court committed procedural
error on three grounds: the instant, failure-to-register crime is not a “sex
offense” as defined in Guideline § 5D1.2, comment. (n.1) (defining “sex offense”);
the prohibition of direct, or indirect, contact with minors without prior approval
is outside the scope of Guideline § 5D1.3(d)(7) (recommended special conditions
for sex offenses); and the court, despite being required to do so, failed to state
reasons for the conditions.
      Properly preserved objections to the imposition of conditions of supervised
release are reviewed for abuse of discretion. United States v. Paul, 274 F.3d 155,
165 (5th Cir. 2001). Nelson, however, did not object to the imposition of special
conditions on the procedural grounds now asserted. Thus, his procedural-
reasonableness challenge is reviewed only for plain error. See United States v.
Medina-Anicacio, 325 F.3d 638, 643 (5th Cir. 2003). Under the plain-error
standard, Nelson must show a clear or obvious forfeited error that affected his
substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If he
makes such a showing, we have the discretion to correct the error, but should do
so only if it seriously affects the fairness, integrity, or public reputation of the
proceedings. See id.
      Assuming arguendo the court believed failure to register as a sex offender
qualified as a sex offense under the Guidelines, we conclude it did not commit
plain error. See U.S.S.G. § 5D1.2, comment. (n.1) (defining certain offenses as
“sex offenses” but not excluding failure-to-register); see also United States v.
Kroft, No. 12-60609, 2013 WL 3492347 (5th Cir. 12 July 2013) (per curiam)

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                                  No. 12-60894

(unpublished) (reaching same conclusion). Nelson further contends the court
was prohibited from imposing conditions of supervised release not recommended
in the Guidelines. A district court, however, may impose conditions of release
outside those recommended by the advisory Guidelines. See United States v.
Weatherton, 567 F.3d 149, 152-53 (5th Cir. 2009).
      Although Nelson asserts the district court did not provide reasons for the
challenged conditions, the record reflects the court’s consideration of the 18
U.S.C. § 3553(a) factors and the advisory Guidelines range. Additionally, the
court expressed concerns over Nelson’s history of failing to register as a sex
offender and noted prior arrests on that basis.        Thus, the court provided
adequate reasons and did not err in this regard. See Rita v. United States, 551
U.S. 338, 356-58 (2007).
      Because Nelson objected to the substantive reasonableness of the
conditions regarding direct or indirect contact and mental-health treatment, his
challenge to those conditions is reviewed for abuse of discretion. See Paul, 274
F.3d at 165. His remaining substantive challenges are reviewed only for plain
error. See Medina-Anicacio, 325 F.3d at 643.
      The condition imposed by the court prohibiting all “direct or indirect
contact with any non-biological children” is substantively unreasonable. See
United States v. Windless, 719 F.3d 415, 421-22 (5th Cir. 2013) (“to forbid all
‘indirect’ contact works a serious restriction on liberty”); see also Kroft, 2013 WL
3492347, at *2 (vacating a similar condition). On remand for resentencing, this
condition is not to be imposed.
      The court relied upon more than Nelson’s bare arrest record in imposing
the remaining conditions. See Windless, 719 F.3d at 421 (vacating treatment
condition based solely on arrest record). Therefore, it did not abuse its discretion
in imposing the condition for mental-health treatment. Nelson does not show
the remaining conditions (restricting employment around children and
restricting going to places frequented by them) are not reasonably related to the

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relevant factors, involve an unnecessary deprivation of liberty, or are
inconsistent with the policy statements of the Guidelines. See Weatherton, 567
F.3d at 153.
      AFFIRMED IN PART; VACATED IN PART; AND REMANDED FOR
RESENTENCING.




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