     Case: 14-30029      Document: 00512856434         Page: 1    Date Filed: 12/03/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-30029                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                                December 3, 2014
                                                                           Lyle W. Cayce
              Plaintiff - Appellee                                              Clerk

v.

RENOUNTE ABDUL JACKSON,

              Defendant - Appellant




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 2:13-CR-15-2


Before DAVIS, WIENER, and HAYNES, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Renounte Abdul Jackson pleaded guilty to two
counts of abusive sexual contact of a minor, in violation of 18 U.S.C. §
2244(a)(3). The district court sentenced him to consecutive prison terms of 13
and 14 months, and to a five-year term of supervised release. As a special
condition to his supervised release, Jackson is prohibited from having “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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-30029
with anyone under the age of eighteen, except his child, with adult
supervision.” 1 On appeal, Jackson asserts that (1) the district court committed
procedural error, (2) his sentence is substantively unreasonable, and (3) the
special condition to his supervised release is overly broad.
                         I. FACTS AND PROCEEDINGS
       A grand jury indicted Jackson on three counts: Count One, violating 18
U.S.C. § 2243(a), sexual abuse of a minor and Counts Two and Three, violating
18 U.S.C. § 2244(a)(3), abusive sexual contact of a minor. Jackson pleaded
guilty to Counts Two and Three in exchange for the government’s agreeing to
dismiss Count One after sentencing. The presentence report calculated a
guidelines range of 21 to 27 months.
       Jackson filed written objections to the presentence report, claiming that
the offense conduct section should not reflect that he allegedly had sexual
intercourse with one of the victims or that he allegedly threatened one of the
victims following the offense. Jackson also objected to the application of
U.S.S.G. § 2A3.2 to his sentence via the cross reference in § 2A3.4(c)(2), because
the offense of conviction did not include a sexual act and the stipulated factual
basis for his guilty plea did not support such a finding.
       At the sentencing hearing, Jackson re-urged his written objections,
which the district court overruled. Relying on the Section 3553(a) factors,
Jackson also contended that the court should impose a sentence of 10 to 16
months based on his relative youth, his acceptance of responsibility, and the
fact that he would have to register as a sex offender for 25 years. The court
did not respond to Jackson’s contentions in support of a lower sentence; rather,


       1 Jackson misstates this condition as prohibiting him from having contact with anyone
under 18, except his child, without adult supervision. The condition clearly states, however,
that Jackson may have supervised contact only with his child, and that he may not have any
contact, supervised or unsupervised, with anyone else under 18. We address his arguments
as applied to that reading.
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                                        No. 14-30029
it stated: “In determining the particular sentence to be imposed in this case,
I’ve considered the factors contained in 18 U.S.C. § 3553 and the sentencing
guidelines.” In her written statement of reasons, the sentencing judge adopted
the presentence report without change and noted additional facts justifying the
sentence imposed: Jackson had a prior conviction for theft of government
property, he had previously violated the terms of his probation, and he had
admitted to using marijuana while on probation.
      On appeal, Jackson raises three points of error: (1) The district court
procedurally erred by failing to address Jackson’s asserted reasons in support
of a shorter sentence and by neglecting to state the reasons for the imposed
sentence in open court, (2) the imposed sentence is substantively unreasonable
under the facts and circumstances of the case, and, (3) the special condition
prohibiting Jackson from having contact with anyone under the age of
eighteen, except his child with adult supervision, is overly broad and
constitutes a deprivation of liberty. 2
                                     II.     ANALYSIS
A.    Procedural error
      Jackson asserts that the district court procedurally erred because it
failed to explain the specific reasons for the sentence it imposed and neglected
to address Jackson’s contentions in support of a shorter sentence. Jackson did
not object on the grounds of procedural error in court, so we review for plain
error. 3 “We may not provide relief unless there was (1) error, (2) that is plain,
and (3) that affects substantial rights. Even when these elements are met, we




      2   Jackson does not challenge the application of U.S.S.G. § 2A3.2 to his sentence on
appeal.
      3   See United States v. Peltier, 505 F.3d 389, 391 (5th Cir. 2007).
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                                         No. 14-30029
have discretion to correct the forfeited error only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” 4
       At sentencing, “[t]he district court must make an individualized
assessment based on the facts presented.” 5 It should consider the factors in 18
U.S.C. § 3553(a) in light of the parties’ arguments, and may not presume that
the range set forth in the Sentencing Guidelines is reasonable. 6 “The district
court must adequately explain the sentence ‘to allow for meaningful appellate
review and to promote the perception of fair sentencing.’” 7 “A sentence within
the Guidelines range will require little explanation, but where a party presents
non-frivolous reasons for imposing a different sentence . . . the judge will
normally go further and explain why he has rejected those arguments.” 8 “At a
minimum, ‘[t]he sentencing judge should set forth enough to satisfy the
appellate court that he has considered the parties’ arguments and has a
reasoned basis for exercising his own legal decision making authority.’” 9 This
articulation requirement “also applies to a district court’s decision whether to
impose a consecutive or concurrent sentence.” 10
       In United States v. Mondragon-Santiago, we held that the district court
committed procedural error when it “did not directly address the [defendant’s]
arguments before reciting the Guidelines calculation and range and choosing
a sentence within that range.” Neither “did [the sentencing court] . . . mention


       4  United States v. Tang, 718 F.3d 476, 482−83 (5th Cir. 2013) (internal citations and
quotation marks omitted).
        5 United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008).
        6 United States v. Mondragon-Santiago, 564 F.3d 357, 360 (5th Cir. 2009).
        7 Id. (quoting Gall v. United States, 552 U.S. 38, 50 (2007)); see also 18 U.S.C. § 3553(c)

(“The court, at the time of sentencing, shall state in open court the reasons for its imposition
of the particular sentence.”).
        8 United States v. Rouland, 726 F.3d 728, 732 (5th Cir. 2013) (alteration in original)

(internal citations and quotation marks omitted).
        9 United States v. Tisdale, 264 F. App’x 403, 411 (5th Cir. 2008) (alterations in original)

(quoting Rita v. United States, 551 U.S. 338, 356 (2007)).
        10 United States v. Gore, 298 F.3d 322, 325 (5th Cir. 2002).

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                                        No. 14-30029
any § 3553(a) factors at all.” 11 In so holding, we distinguished Mondragon-
Santiago from other cases in which we had concluded that the sentencing
courts did not commit procedural error because they had “acknowledged that
§ 3553(a) arguments had been made and devoted a few words to rejecting
them.” 12
       Applying the plain error standard of review, we conclude the court did
not procedurally err. Before imposing Jackson’s sentence, the judge stated: “In
determining the particular sentence to be imposed in this case, I’ve considered
the factors contained in 18 U.S.C. § 3553 and the sentencing guidelines.” She
indicated in her written statement of reasons that she had adopted the
presentence report without change. As noted, she also listed additional facts
that justified the sentence imposed: Jackson had a prior conviction for theft of
government property, had violated the terms of his probation, and had
admitted to using marijuana while on supervised probation. We therefore
reject Jackson’s contention that the court procedurally erred by failing to state
the reasons for the sentence imposed, or to respond to his statements seeking
a sentence of 10 to 16 months. 13
       Even if we were to assume arguendo that the sentencing court committed
procedural error, we would hold that such error does not warrant reversal
because Jackson has not shown that the error affects his substantial rights.
To make that showing, Jackson must demonstrate that the error affected the
outcome in the district court. 14 A showing that substantial rights have been



       11  Mondragon-Santiago, 564 F.3d at 362; id. at 364.
       12  Id. at 363 (collecting cases).
        13 In United States v. Gore, we held that the sentencing court did not procedurally err

by failing to explain its departure from the sentencing guidelines in open court because it
later offered a written explanation following the recommendation in the presentence report:
“Gore . . . cannot show plain error, because the written statement of reasons points to the
PSR . . . . [t]his reference is sufficient to allow meaningful appellate review.” 298 F.3d at 325.
        14 Mondragon-Santiago, 564 F.3d at 364.

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affected requires a demonstration that there is a reasonable probability that,
but for the district court’s failure to explain the sentence adequately, Jackson
would have received a lesser sentence. 15
       Jackson contends that the district court’s procedural error affected his
substantial rights. He asserts that, as he requested a specific sentence of 16
months, this court should distinguish his case from Mondragon-Santiago
because there the defendant asked only for a downward departure. Jackson
also submits that the district court’s decision to impose consecutive sentences
implicates the additional judicial requirements of Section 3584(b).
       We conclude that this case is not meaningfully distinguishable from
Mondragon-Santiago, in which we held that the district court’s inadequate
explanation did not warrant reversal of a sentence within the guidelines range
because the defendant failed to show that an adequate explanation would have
led to a different sentence. 16         Neither do we find compelling Jackson’s
contention that the consecutive nature of his sentence distinguishes it from
“conventional” plain error sentences. 17 Even if we were to assume that the
district judge committed procedural error, we would nevertheless hold that
such error does not warrant reversal because Jackson has not shown that it
affected his substantial rights.
B.     Substantive reasonableness
       Jackson objected to the substantive reasonableness of his sentence at his
hearing, and he raises this objection again on appeal. Jackson asserts that
because his offense was an inappropriate act fueled by hormones, but without
malicious intent, a 27-month term of imprisonment is unreasonably long.


       15 See id. at 364-365.
       16 See id. at 365.
       17 See Gore, 298 F.3d at 325 (“We have repeatedly held that the failure to articulate

[the decision whether to impose a consecutive or concurrent sentence] in open court is not
plain error.”).
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Jackson also contends that this court should not accord a presumption of
reasonableness to his within-guidelines sentence because it comprises
consecutive terms of imprisonment.
      We review the substantive reasonableness of a sentence for abuse of
discretion. 18 As a starting point, “[t]his court applies a rebuttable presumption
of reasonableness to a properly calculated, within-guidelines sentence.” 19 This
presumption applies to the district court’s decision to impose sentences that
are within the proper advisory guidelines range consecutively. 20                    The
presumption is “rebutted only upon a showing that the sentence does not
account for a factor that should receive significant weight, it gives significant
weight to an irrelevant or improper factor, or it represents a clear error of
judgment in balancing sentencing factors.” 21
      Jackson has failed to rebut the presumption of reasonableness attached
to his sentence. He pleaded guilty to two counts of abusive sexual contact with
a minor. The offense occurred a few days before Jackson turned twenty. One
of the minor victims testified at the sentencing hearing that Jackson was
aware that she was thirteen at the time of the offense. Although Jackson was
in fact nineteen years old at the time, he told the victim that he was sixteen or
seventeen. That same victim testified that Jackson had sex with her at a house
party, despite her first asking him to stop. The district judge heard this
testimony and Jackson’s arguments in mitigation at the sentencing hearing.
She concluded that a sentence within the guidelines range was appropriate.
Because Jackson’s contention on appeal amounts to a “disagreement with the
propriety of the sentence imposed,” 22 it does not rebut the presumption of


      18 United States v. Alvarado, 691 F.3d 592, 596 (5th Cir. 2012).
      19 United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
      20 United States v. Candia, 454 F.3d 469, 471 (5th Cir. 2006).
      21 Cooks, 589 F.3d at 186.
      22 See United States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010).

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                                       No. 14-30029
reasonableness that we accord to a sentence imposed within the guidelines
range. 23
C.     Special condition
       Jackson challenges the special condition to his term of supervised release
prohibiting him from having contact with anyone under the age of eighteen,
except his own child, and then with adult supervision. He contends that the
special condition is overly broad because it will require him to avoid any place
where he might come into contact with children, such as stores, restaurants,
churches, and libraries, as well as transportation facilities such as airports and
bus or train stations. As Jackson did not object to the special condition in the
district court, we review it for plain error. 24
       A condition 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.” 25        In addition, “the condition cannot impose any
‘greater deprivation of liberty than is reasonably necessary’ to advance



       23  We also reject Jackson’s contention that we should decline to apply the presumption
of reasonableness to his sentence because the district judge imposed consecutive terms.
Although Jackson objected to the substantive reasonableness of his sentence, he did not
object to its consecutive nature. As such, it is unclear whether he preserved this objection
for appellate review. We need not determine whether we should apply plain error review,
however, because Jackson’s contention also fails under the abuse of discretion standard. See
United States v. Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008) (declining to determine the
correct standard of review under similar circumstances); Candia, 454 F.3d at 473 (“We hold
that a rebuttable presumption of reasonableness also applies to a consecutive sentence
imposed within the parameters of the advisory federal guidelines.”).
        24 See United States v. Ellis, 720 F.3d 220, 225 (5th Cir. 2013).
        25 Id. (internal quotation marks and alterations omitted) (quoting 18 U.S.C. §§

3583(d)(1), 3553(a)(1), (a)(2)(B)−(D)).
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                                       No. 14-30029
deterrence, protect the public from the defendant, and advance the defendant’s
correctional needs.” 26
       In United States v. Paul, we interpreted a restriction on “indirect contact
with minors” to exclude “chance or incidental encounters,” such as in a
restaurant or retail establishment. 27 We agreed with the Third Circuit that
“‘associational conditions do not extend to casual or chance meetings.’” 28 In
United States v. Windless, we considered a condition prohibiting the defendant
from having “direct or indirect contact with any children under the age of 18,
unless accompanied and supervised by an adult.” 29 In a holding that creates
tension with Paul, we agreed with the defendant that the “direct and indirect”
condition would “effectively prohibit him from going to the grocery store
unaccompanied.” 30 Under Paul, we interpret the reach of Jackson’s condition
on contact with children to exclude incidental encounters in public places. 31 As
interpreted, Windless is distinguished from the instant case. Moreover, the
need to restrict Jackson’s contact with children is stronger in his case than it
was in Windless. We emphasized in Windless that the defendant was being
sentenced only “for failing to register as a sex offender; the offense that
required him to register [was] not of recent origin; and since that offense, he
[had] committed no other crimes against minors.” 32 By contrast, Jackson’s
condition of supervised release is based on his recent abusive sexual contact of
two minors. The seriousness of Jackson’s recent crime supports the need to



       26  United States v. Weatherton, 567 F.3d 149, 153 (5th Cir. 2013) (citations and
internal quotation marks omitted).
       27 274 F.3d 155, 166 (5th Cir. 2001).
       28 Id. (quoting United States v. Loy, 237 F.3d 251, 269 (3d Cir. 2001)).
       29 719 F.3d 415, 419 (5th Cir. 2013).
       30 Id. at 422.
       31 See United States v. Tex. Tech. Univ., 171 F.3d 279, 287 n.9 (5th Cir. 1999) (“Where

two panel decisions conflict, the prior decision constitutes the binding precedent.).
       32 Windless, 719 F.3d at 422.

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                                      No. 14-30029
separate him from children for a limited time. And, Windless preserved his
argument on appeal, 33 but Jackson did not. We therefore review the district
court’s imposition of the condition for plain error, and we conclude that the
court committed none. Given the seriousness of Jackson’s offense and his
intimidation of his victim, a restriction on his contact with minors for five years
is not unreasonable. 34
       Finally, Jackson asserts that the restriction on his contact with minors
is impermissibly vague. “Restrictions on an offender’s ability to interact with
particular groups of people . . . must provide ‘fair notice’ of the prohibited
conduct.” 35 Jackson contends that the restriction does not provide adequate
clarity regarding who can qualify as adult supervision. Jackson’s position is
unpersuasive; we have upheld conditions of supervised release that call for
adult supervision of contact with children. 36 In addition, the general
prohibition on Jackson’s contact with minors is not impermissibly vague when
construed to exclude incidental contact. 37 The district court did not plainly err
in restricting Jackson’s contact with minors during his term of supervised
release.




       33 Id.
       34 We have upheld similar restrictions in cases involving child pornography and sexual
offenses against minors. See United States v. Tang, 718 F.3d 476, 487 (5th Cir. 2013)
(affirming a restriction on contact with minors without prior written permission of the
probation officer); Ellis, 720 F.3d at 225−27 (affirming a lifetime ban on non-incidental
contact with minors); Paul, 274 F.3d at 165 (upholding a condition that prohibited non-
incidental contact with minors and required avoidance of places that minors frequent).
       35 See Paul, 274 F.3d at 166-167 (quoting Loy, 237 F.3d at 262).
       36 See United States v. Rodriguez, 558 F.3d 408, 418 (5th Cir. 2009) (affirming a

condition that barred the defendant from associating with minors except under the
supervision of an adult designated by the probation officer).
       37 See Paul, 274 F.3d at 166 (upholding against a vagueness challenge a condition

instructing the defendant to avoid “places, establishments, and areas frequented by minors”).
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                            III.    CONCLUSION
      Jackson has not established any reversible error with respect to his
sentence or condition of supervised release. The judgment of the district court
is, in all respects, AFFIRMED.




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