                                                                                                  United States Court of Appeals
                                                                                                           Fifth Circuit
                                                                                                           F I L E D
                               IN THE UNITED STATES COURT OF APPEALS
                                                                                                          January 20, 2006
                                              FOR THE FIFTH CIRCUIT
                                                                                                      Charles R. Fulbruge III
                                                                                                              Clerk
                                              ________________________

                                                    No. 04-41608
                                              ________________________

UNITED STATES OF AMERICA

                                                                                                      Plaintiff-Appellee
-vs-


ANDREW HARTSHORN, JR.

                                                                                                 Defendant-Appellant


                                    Appeal from the United States District Court
                                        for the Southern District of Texas
                                                   (03-CR-11)


Before JOLLY and BARKSDALE, Circuit Judges, and LITTLE, District Judge.*

LITTLE, District Judge:**

         This appeal arises from a judgment of conviction and sentence imposed upon Andrew

Hartshorn, Jr. (“Hartshorn”) based on two counts of distribution of child pornography in violation

of 18 U.S.C. § 2252A(a)(2) and 18 U.S.C. § 2252A(b)(1). For the reasons that follow, we AFFIRM.




         *
              District Judge of the Western District of Louisiana, sitting by designation.

         **
           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 R. 47.5, the court has determined that this opinion should not be published and is not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.
                    I. FACTUAL AND PROCEDURAL BACKGROUND

        On 3 September 2003, a federal grand jury in the Galveston Division of the Southern District

of Texas returned a two-count indictment charging Hartshorn with transportation of child

pornography and possession of child pornography. The government filed a superseding eight-count

indictment on 14 April 2004, adding, inter alia, charges of distribution of child pornography. Under

the relevant statutory provision, Hartshorn’s prior sex-related offenses qualified him for a sentencing

enhancement.

        Hartshorn initially pled not guilty on 26 April 2004. He subsequently entered a plea of guilty

to counts two and three of the indictment pursuant to a written plea agreement on 4 June 2004,

having been previously convicted of a felony relating to aggravated sexual abuse, sexual abuse and

abusive co nduct involving a minor. As part of his plea agreement, Hartshorn waived his right to

appeal “the conviction or any issues of facts and issues of law, including all collateral and non-

jurisdictional issues, on which the conviction is based, and the sentence, including forfeitures, fines,

and restitutions, if any, and the manner in which the sentence was determined,” as well as his right

“to contest his conviction or sentence by means of any post-conviction proceeding.” He reserved his

right to appeal a sentence imposed above the statutory maximum or that included an upward

departure from the sentencing guidelines. On 5 November 2004, the district court sentenced

Hartshorn to 365 months of imprisonment in the custody of the Bureau of Prisons (“BOP”) and a life

term of supervised release as to each count to run concurrently. Although the district court indicated

that it was departing upward with respect to supervised release, Hartshorn does not challenge this

aspect of his sentence on appeal.

        Pursuant to the special conditions of Hartshorn’s supervised release, the district court


                                                   2
instructed orally that Hartshorn should not be released to the Southern District of Texas, nor to the

residence of his biological family, that he cooperate in the collection of DNA samples, and that he not

possess any sexually oriented or sexually stimulating materials.

                                          II. DISCUSSION

A.       Booker Issues

         Hartshorn argues that the district court erred by sentencing him under the mandatory

sentencing guideline regime held unconstitutional in United States v. Booker, 125 S. Ct. 738 (2005).

In response, the government argues that Hartshorn’s appeal waiver precludes consideration of this

issue.

         A defendant may waive his statutory right to appeal as part of a plea agreement, provided that

the waiver is “informed and voluntary.” United States v. Melancon, 972 F.2d 566, 567 (5th Cir.

1992). Whether an appeal waiver prevents a court from addressing an appeal is reviewed de novo.

United States v. Baymon, 312 F.3d 725, 727 (5th Cir. 2002). In order to make this determination,

the court examines “(1) whether the waiver was knowing and voluntary and (2) whether the waiver

applies to the circumstances at hand, based on the plain language of the agreement.” United States

v. Bond, 414 F.3d 542, 544 (5th Cir. 2005) (applying blanket prohibition of appeal as no exception

to waiver provision was met); see also United States v. McKinney, 406 F.3d 744, 746-47 (5th Cir.

2005) (finding no upward departure and that sentence fell within appeal-waiver provision in plea

agreement and did not violate Booker). Hartshorn does not allege, and there is no indication in the

record, that his ratification of the plea agreement was anything but knowing and voluntary.

         On prior occasions, we have enforced appeal waivers and declined to consider Booker claims

where the plain language of the waiver indicated that the defendant waived his appellate rights and


                                                   3
did not intend for its language to have a meaning other than its ordinary and natural meaning. See

Bond, 414 F.3d at 544; United States v. Cortez, 413 F.3d 502, 503 (5th Cir. 2005); McKinney, 406

F.3d at 747 n.5 (“We thus agree with two other circuits that have reached the same conclusion, i.e.,

that Blakely and Booker do not alter the plain meaning of appeal-waiver provisions in valid plea

agreements.”). Although Harthorn’s specific Booker argument is unclear, this court’s decision in

McKinney forecloses the contention that Hartshorn’s sentence exceeds the statutory maximum or

constitutes an upward departure with respect to the calculation of the guidelines range and is

therefore outside the scope of his appeal waiver. McKinney, 406 F.3d at 746-47 (observing that

Booker influences manner in which guidelines ranges may be ultimately applied, but does not change

definition of appropriate guidelines range).

        Furthermore, Hartshorn’s guilty plea is not invalid simply because Blakely and Booker were

decided after he entered his plea. Brady v. United States, 397 U.S. 742, 757 (1970) (“[A] voluntary

plea of guilty intelligently made in the light of the then applicable law does not become vulnerable

because later judicial decisions indicate that the plea rested on a faulty premise.”); Taylor v. Whitley,

933 F.2d 325, 326 (5th Cir. 1991). In our recent opinion in United States v. Burns, we joined our

sister circuits in holding that “an otherwise valid appeal waiver is not rendered invalid, or inapplicable

to an appeal seeking to raise a Booker or Fanfan issue (whether or not that i ssue would have

substantive merit), merely because the waiver was made before Booker.” No. 04-11357, 2005 WL

3388548, *7 (5th Cir. Dec. 13, 2005). Thus, Hartshorn’s argument that he could not have waived

a then-unknown right is foreclosed by this court’s binding precedent. Because Hartshorn has failed

to present valid arguments that demonstrate otherwise, his appeal waiver applies and his Booker

claim is barred.


                                                    4
B.      Conditions of Supervised Release

        1.      Geographic Limitation

        Hartshorn argues that the district court committed reversible error when it ordered as a

condition of supervised release that he not be released to the Southern District of Texas nor to the

residence of his biological family. He argues that this condition imposes a greater deprivation of

liberty than is reasonably necessary and amounts to a banishment or exile from his family. Hartshorn

argues, and the government agrees, that the district court exceeded its authority to order conditions

of supervised release under 18 U.S.C. § 3583(d). Since both parties contend that the restriction is

unauthorized by statute, this issue falls outside the scope of Hartshorn’s appeal waiver. Thus, as

Hart shorn has raised a constitutional issue, we review his claim de novo. See United States v.

Estrada-Trochez, 66 F.3d 733, 735 (5th Cir. 1995).

        A district court has broad discretion in ordering conditions of supervised release. United

States v. Ferguson, 369 F.3d 847, 852 (5th Cir. 2004). The special conditions of supervised release,

however, must be reasonably related to “(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 crimes 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.” Id. (internal citations and quotation marks

omitted). Even if these criteria are satisfied, the court may not impose conditions that “involve a

greater deprivation of liberty than is reasonably necessary to achieve the latter three statutory goals.”

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

        There is some ambiguity with respect to the geographic limitation of Hartshorn’s supervised


                                                   5
release. At the sentencing hearing, the district court did not offer an explanation as to this condition.

In the district court’s written judgment, this instruction appears in the imprisonment section, rather

than the section listing the conditions of supervised release. The judgment does not mention the

district court’s oral prohibition at sentencing of Hartshorn’s release to the residence of his biological

family. As a general rule, when a written sentence is in conflict with the oral pronouncement, the oral

pronouncement controls. See United States v. English, 400 F.3d 273, 276 (5th Cir. 2005); Scott v.

United States, 434 F.2d 11, 20 (5th Cir. 1970). It is the district court’s intention that ultimately

determines the final judgment. See United States v. Kindrick, 576 F.2d 675, 677 (5th Cir. 1978).

If there is an ambiguity between the two sources, the entire record must be examined in order to

ascertain the district court’s true intent. See United States v. Martinez, 250 F.3d 941, 942 (5th Cir.

2001).

         After reviewing the evidence in toto, we conclude that the district court intended the

geographic limitation as precatory rather than mandatory. Indeed, by virtue of statute, the BOP has

full discretion to determine the location of a prisoner’s release. See 18 U.S.C. § 3624(d)(3)

(requiring BOP, upon release, to provide prisoner with transportation to his “bona fide residence”

or “to such other place within the United States as may be authorized by the director”). In other

words, the BOP is bound by statute to select the place where the prisoner is to be released. See

United States v. Voda, 994 F.2d 149, 151-52 (5th Cir. 1993) (observing that “only the Bureau of

Prisons has the actual authority to designate the place of incarceration” because “the executive branch

and not the judicial branch is responsible for administering sentences”). Thus, because the BOP has

the exclusive authority to determine the location of a prisoner’s release, the challenged “condition”

                                                   6
is merely a suggestion to the BOP. As the district court’s suggestion is not binding upon the BOP,

it is not an order from which Hartshorn can appeal. See United States v. De La Pena-Juarez, 214

F.3d 594, 600-01 (5th Cir. 2000) (district court’s order requiring as condition of sentence that fifty

percent of defendant’s prison earnings be garnished to support his children and that defendant be

housed in facility close to Houston were non-binding recommendations to BOP, and thus non-

appealable); accord United States v. Melendez, 279 F.3d 16, 18 (1st Cir. 2002); United States v.

Serafini, 233 F.3d 758, 778 (3d Cir. 2000); United States v. Pineyro, 112 F.3d 43, 45-46 (2d Cir.

1997). We therefore cannot review Hartshorn’s claim regarding the location of his release.

       2.      Collection of DNA

       Hartshorn next argues that the district court erred in imposing a condition of supervised

release requiring him to cooperate in the probation officer’s collection of a DNA sample. He asserts

that the DNA Analysis Backlog Elimination Act of 2000 (“the DNA Act”) does not authorize DNA

collection for the felony of which he was convicted and that this condition constitutes a sentence in

excess of the statutory maximum. See 42 U.S.C. § 14135a(d); 18 U.S.C. § 3583(a)(9).

       The version of the DNA Act applicable at the time of Hartshorn’s conviction does not

authorize the collection of DNA for his felony. The amendment that took effect on 30 October

2004, however, altered the statute from an enumerated list of qualifying offenses to include “any

felony.” 42 U.S.C. § 14135a(d)(1). Thus, DNA collection is authorized under the 2004 version as

amended. The DNA Act indicates an intention for retroactive application in authorizing the collection

of DNA from any defendant who “is, or has been, convicted of a qualifying Federal offense.” Id. §

14135a(a)(1). Moreover, the DNA Act does not run afoul of the Ex Post Facto Clause, as the taking

                                                  7
of a DNA sample is not a punitive measure. See, e.g., Johnson v. Quander, 370 F. Supp. 2d 79, 96-

97 (D.D.C. 2005); United States v. Stegman, 295 F. Supp. 2d 542, 546-48 (D. Md. 2003); Vore v.

U.S. Dep’t of Justice, 281 F. Supp. 2d 1129, 1138 (D. Ariz. 2003); United States v. Sczubelek, 255

F. Supp. 2d 315, 324-25 (D. Del. 2003); United States v. Reynard, 220 F. Supp. 2d 1142, 1157-62

(S.D. Cal. 2002). Since the DNA Act as amended authorizes the taking of a DNA sample from

Hartshorn, this condition does not constitute a sentence in excess of the statutory maximum and thus

is within the scope of Hartshorn’s appeal waiver.

3.      Possession of Sexually Oriented Materials

        Hartshorn asserts that the condition of his supervised release mandating that he not possess

sexually oriented or sexually stimulating materials raises a First Amendment concern, implying that

this allegedly unconstitutional condition is beyond the purview of his appeal waiver. This argument

is foreclosed by our holding in United States v. Phipps. 319 F.3d 177, 192-93 (5th Cir. 2003). In

Phipps, we rejected a challenge to a virtually identical condition of supervised release. Id. Although

that condition was “somewhat vague,” when read in a “commonsense way” the condition was not

improper. Id. at 193. We held that an additional prohibition imposed on patronizing sexually

oriented establishments referred to places such as strip clubs and adult theaters or bookstores and

therefore narro wed the first condition to the kind of sexually oriented materials available at such

places. Id. In this case, as in Phipps, the district court prohibited Hartshorn from patronizing sexually

oriented establishments and from using sex-related telephone numbers. These further restrictions

illustrate the kind of sexually oriented materials prohibited. See id.

        Hartshorn contends that this condition of his supervised release will prevent him from

                                                   8
possessing artistic materials such as the literary works of D.H. Lawrence or the film “Last Tango in

Paris.” We rejected a similar argument in Phipps, holding that a commonsense construction of the

conditions compelled us to disagree with the suggestion that the condition could apply to newspapers,

magazines with lingerie advertisements, or even the “Song of Solomon.” Id. Thus, the district

court’s condition of supervised release with respect to sexually oriented materials was proper based

on our decision in Phipps, and consequently, Hartshorn’s challenge of the condition is barred by his

appeal waiver. See id.

                                         CONCLUSION

       Based on the foregoing analysis, we AFFIRM appellant’s conviction and sentence.




                                                 9
