                Case: 17-11439    Date Filed: 10/09/2018   Page: 1 of 22


                                                               [DO NOT PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                   No. 17-11439
                             ________________________

                        D.C. Docket No. 0:16-cr-60264-RNS-1



UNITED STATES OF AMERICA,

                                                    Plaintiff - Appellee,

versus

PATRICK ANTCZAK,

                                                    Defendant - Appellant.

                             ________________________

                     Appeal from the United States District Court
                         for the Southern District of Florida
                           ________________________

                                   (October 9, 2018)

Before ROSENBAUM, HULL, and JULIE CARNES, Circuit Judges.

PER CURIAM:

         Following a jury trial, Patrick Antczak was convicted of attempting to entice

a minor into sexual relations in violation of 18 U.S.C § 2422(b). He contends that
              Case: 17-11439     Date Filed: 10/09/2018   Page: 2 of 22


the district court committed several pretrial and trial errors that require reversal of

his conviction. He also asserts that the sentence the district court imposed was too

long, and its post-prison terms were too constricting. After careful consideration

and for the reasons that follow, we affirm.

                                          I.

      On September 22, 2016, a grand jury indicted Antczak for attempting to

persuade, induce, entice, or coerce a minor to engage in sexual activity, in violation

of 18 U.S.C § 2422(b). Antczak pled not guilty, contending he lacked the requisite

intent because he did not really believe a minor would be involved.

      At its core, this case arises out of a dragnet that the Federal Bureau of

Investigation (“FBI”) created to uncover adults using the internet to troll for ways

to have sexual relations with minors. That dragnet ensnared Antczak. At trial, the

Government had to prove that (1) Antczak acted with a specific intent to persuade,

induce, entice, or coerce a minor to engage in unlawful sexual activity, and (2) he

took a substantial step toward the commission of the offense. See United States v.

Murrell, 368 F.3d 1283, 1286 (11th Cir. 2004). The Government sought to do so

through three witnesses and through evidence consisting of a number of sexually

explicit messages that Antczak exchanged with Matthew Fowler, an undercover

FBI agent.




                                          2
             Case: 17-11439    Date Filed: 10/09/2018   Page: 3 of 22


      Specifically, at trial, Fowler testified that in August 2016, he placed an

advertisement on Craigslist’s “casual encounters” section, implying that he was a

“dirty dad”—a dad who was engaged in incest with his nine-year-old daughter

“Samantha”—and was looking for others who might be interested in having sexual

relations with her as well. Fowler testified that Antczak responded to the inquiry

shortly thereafter, beginning about a month of communications between them.

      Much of Fowler’s remaining testimony consisted of Fowler’s reading of the

over 500 messages he had exchanged with Antczak through the online messenger

application “Kik.” In those messages, Antczak expressed a desire to have sex with

“Samantha” because he was “into incest/weird stuff” and “would like to try”

having sex with a young child. Antczak also engaged in graphic communications

about the manner in which he planned to have sex with “Samantha,”

communications in which he instructed “Samantha” on how to masturbate, and

communications with “Samantha” in which he promised to bring her an iTunes gift

card in exchange for sex. Following these communications, Fowler arranged for a

meeting between Antczak and “Samantha” at a hotel in Sunrise, Florida.

      Fowler testified that on September 13, 2016, Antczak arrived at the pre-

arranged hotel rendezvous, carrying a condom that Fowler had instructed him to

bring, as well as the iTunes gift card that he had promised “Samantha.” Once he




                                        3
              Case: 17-11439   Date Filed: 10/09/2018   Page: 4 of 22


spotted Antczak in the hotel’s parking lot, Fowler, along with Agent Latasha

Humphrey, apprehended Antczak.

        Antczak’s defense at trial was that he thought his discussions with

“Samantha” and her “father” were “fantasy talk[s]” because he did not really

believe a minor would be involved. Since Antczak did not testify, he sought to

develop this defense by cross-examining Fowler. For example, defense counsel

showed Fowler messages—also recovered from Antczak’s phone—between

Antczak and a person identified as “Angela Mikael,” who was a man

masquerading online as a young girl.        The messages between “Angela” and

Antczak ended abruptly when “Angela” revealed that she was a man. According

to Antczak, when he told “Angela” that he “figured” that she was really a man, it

demonstrated that he was not sexually interested in minors but only in adults

roleplaying as minors.

        To rebut this defense, the Government presented statements Antczak made

to FBI agents after they arrested him, evidence gleaned from Antczak’s cellphone,

and evidence that state authorities had caught Antczak with child pornography in

2011.    To show Antczak’s 2011 acts, the Government called two additional

witnesses, Agent Humphrey and Detective Nicole Freeley from the Broward

County Sheriff’s Office. Both focused most of their testimony on Antczak’s

possession of child pornography in 2011.


                                        4
               Case: 17-11439   Date Filed: 10/09/2018   Page: 5 of 22


      Before trial, Antczak tried to stanch all evidence relating to his prior

possession of child pornography by filing a motion to suppress. The district court

denied Antczak’s motion because it concluded this evidence was admissible under

Rule 404(b). In the court’s view, Antczak’s past possession of child pornography

was relevant to his intent here, since both crimes “involve the same mental state: a

prurient interest in young girls.” Because of this ruling, Antczak proposed a

question for voir dire designed to discern whether the Rule 404(b) evidence would

render a prospective juror unduly prejudiced towards him since he had previously

possessed child pornography.

      The district court rejected Antczak’s proposed question and substituted more

general inquiries to root out potential prejudice amongst prospective jurors.

Specifically, the court asked whether potential jurors would be more likely to

convict the defendant of the instant offense because he had committed a crime in

the past. The court’s substituted inquires netted two potential jurors who said they

would be unduly prejudiced, and the court subsequently dismissed them. We

discuss the facts concerning this event in more detail when we analyze the specific

issue below.

      Antczak also moved to suppress the statements he made to agents after his

arrest and the evidence they gleaned from his cellphone after he consented to their

search.   More specifically, Antczak contended that he had invoked his Miranda


                                         5
                Case: 17-11439       Date Filed: 10/09/2018        Page: 6 of 22


rights by telling the agents he was going to “avoid answering any questions if

that’s okay.” But after the agents responded by saying, “Okay, so you don’t want

to talk to us?,” Antczak eventually confessed that he was at the hotel because a guy

“wanted [him] to engage in activity with his daughter.” 1 And Antczak eventually

handed over his password and cellphone to the agents so they could search it.

Once the agents unlocked the cellphone, they found the messages that Antczak had

exchanged with Fowler, as well as an incriminating browser history.




       1
           Based on a recording, the interaction between Antczak and the agents unfolded as
follows:

               Antczak: Okay, okay, um I, I am going to avoid answering any questions
               if that’s okay.

               Agent Fowler: Okay

               Agent Fowler: Okay, so you don’t want to talk to us?

               Antczak: You can ask me questions if you want. Do I have the right to
               refuse each individual one or?

               Agent Fowler: Yeah, you can, if you want to talk to us, great, if not, that’s
               great too.

               Antczak: Okay. There’s no way that I’m going to be free to go if I answer
               questions?

               Agent Fowler: No

               Agent Humphrey: No

               Agent Humphrey: So what do you want to do?

               Antczak: Um, you can ask me anything if you want, that’s fine.


                                                 6
              Case: 17-11439     Date Filed: 10/09/2018   Page: 7 of 22


      Although the district court ruled that Antczak’s post-arrest statements were

inadmissible, the district court denied the suppression motion as it pertained to

evidence the agents obtained from Antczak’s cellphone. The district court found

this evidence admissible because Antczak had voluntarily consented to the agents’

search, and the agents’ “technical” violation of Antczak’s Miranda rights did not

vitiate his later voluntary consent.

      Returning to the trial, after hearing all of the evidence, the jury began its

deliberations. But shortly after those deliberations began, the district court excused

a juror because he told the district court that it was “impossible” for him to follow

the court’s instructions due to his past experience.       Less than an hour after

resuming its deliberations, the jury returned with a verdict finding Antczak guilty

of § 2422(b). We discuss the facts concerned with this issue more fully in the

context of our analysis below.

      Based on Antczak’s offense level of 36 and a criminal-history of Category I,

the guideline range for Antczak’s sentence was 188 to 235 months. But based in

part upon the district court’s finding that a criminal history of Category I “woefully

understate[d] his true criminal background” due to Antczak’s possession of child

pornography and subsequent plea to the lesser charge of felony obscenity, the

district court sentenced Antczak to 360 months in prison followed by supervised

release for life. As a condition of Antczak’s supervised release, the district court


                                          7
             Case: 17-11439      Date Filed: 10/09/2018   Page: 8 of 22


restricted him from using a computer unless he received prior approval from the

court, and his use was connected with authorized employment.

                                              II.

      Antczak raises six challenges relating to his conviction under 18 U.S.C §

2422(b). First, Antczak contends that the district court erred in rejecting his

specific voir dire question in favor of two more general questions. Second, he

argues that the district court should not have admitted evidence under Rule 404(b),

that he was caught with child pornography in 2011, because that evidence did not

bear upon his intent in the current case. Third, Antczak asserts that the district

court should have suppressed the contents of his cellphone because he had invoked

his Miranda rights before consenting to the agents’ search. Fourth, Antczak urges

that the district court dismissed a juror with insufficient cause after deliberations

began. Fifth and sixth, Antczak challenges aspects of his sentence, complaining

that its length is unreasonable and the restrictions imposed on his use of a

computer are unconstitutional.

      We affirm because Antzcak has failed to demonstrate that the district court

abused its discretion in crafting its voir dire, dismissing a juror, or imposing his

sentence. And taking both of Antczak’s evidentiary arguments together, even

assuming without deciding that Antczak is right, the district court’s purported

errors were harmless.


                                          8
             Case: 17-11439     Date Filed: 10/09/2018   Page: 9 of 22


      A. The District Court Did Not Abuse Its Discretion In Crafting the Voir
         Dire

      Antczak requested a voir dire question aimed at plumbing potential

prejudice that could result from the jury’s knowledge that he had previously

possessed child pornography. Specifically, he proposed the following question:

      If you heard evidence that Patrick Antczak had possessed and viewed
      child pornography in the past, would you be so upset or bothered by
      that, that you want to convict him of the current charge even if the
      government failed to prove the current charge beyond a reasonable
      doubt.

       The district court rejected Antczak’s proposed question; opting instead for

two that were more general:

      If you were a juror in a case and you heard evidence that the
      defendant had previously committed another criminal office, would
      you believe that the defendant was more likely to have committed the
      charge he or she is on trial for, because of the fact that they had
      previously committed a different criminal offense;

      Some people may be less worried that they are convicting an innocent
      person if they know that the person had committed some other crime
      in the past. Does anyone here feel that way?

Antczak contends that these questions were insufficient to ferret out any potential

prejudice because they did not discuss child pornography.

      This Court reviews a district court’s refusal to ask Antczak’s proposed

question at voir dire for an abuse of discretion. See United States v. Chastain, 198

F.3d 1338, 1347–48 (11th Cir. 1999). “[U]nder Fed. R. Crim. P. 24(a), a trial court

has broad discretion in conducting a voir dire.” United States v. Shavers, 615 F.2d
                                         9
             Case: 17-11439    Date Filed: 10/09/2018   Page: 10 of 22


266, 268 (5th Cir. 1980). That discretion includes deciding whether to submit a

party’s proposed questions to the venire. United States v. Tegzes, 715 F.2d 505,

507 (11th Cir. 1983). “The voir dire conducted by the trial court need only provide

‘reasonable assurance that prejudice will be discovered if present.’” United States

v. Vera, 701 F.2d 1349, 1355 (11th Cir. 1983) (quoting United States v. Holman,

680 F.2d 1340, 1344 (11th Cir. 1982)).

      The proper inquiry is whether the voir dire as a whole affords the defendant

the protection he seeks. See Tegzes, 715 F.2d at 507. A district court does not

abuse its discretion unless it unreasonably fails to craft inquiries that would

uncover detectable prejudice. Id. The standard for evaluating the district court’s

exercise of its discretion is “whether the means employed to test impartiality have

created a reasonable assurance that prejudice would be discovered if present.”

Shavers, 615 F.2d at 268.

      Here, the district court did not abuse its discretion in substituting two voir

dire questions in place of Antczak’s proposed question. The district court’s voir

dire created reasonable assurances that Anctzak’s essential concerns were

identified: whether potential jurors would be more likely to convict Antczak

because he had previously possessed child pornography. The potential prejudice

that could have resulted from admitting evidence under Rule 404(b) might have

occurred if a potential juror were unable to limit her or his consideration of


                                         10
             Case: 17-11439    Date Filed: 10/09/2018   Page: 11 of 22


Antczak’s prior act to the limited purpose of proving Antczak’s intent. But here,

the district court’s substituted questions were reasonably calculated to smoke that

prejudice out.

      In fact, the court’s questions did just that. After two jurors gave answers

that suggested that they might be unable to limit the import of Antczak’s prior acts

to considering Antczak’s intent here, the district court excused them for cause.

      Nor does Antczak’s reliance on United States v. Shavers, 615 F.2d 266, 268

(5th Cir. 1980), affect our analysis. Antczak cites the case for the proposition that

he should have been able to specifically ask whether the jurors would be unfairly

prejudiced by learning that he previously possessed child pornography.             In

Shavers, a case in which the defendant was claiming self-defense, the Fifth Circuit

found that the district court abused its discretion by not permitting the defense to

ask whether jurors (or their relatives) had been victims of a crime or whether they

harbored beliefs that a person cannot use violence to repel another person’s attacks.

Id. The Shavers Court reasoned that inquiring about “impartiality” did not suffice

because those inquiries “might not reveal latent prejudices” against somebody who

had used violent force. Id.

      Here, unlike in Shavers, the court’s substitute questions met the principal

aim of Antczak’s rejected inquiry:       whether the jury would improperly use

extrinsic evidence Antczak had committed a “bad act” as evidence that he


                                         11
             Case: 17-11439    Date Filed: 10/09/2018   Page: 12 of 22


committed the current offense.     As far as discerning whether potential jurors

harbored prejudice relating to Antczak’s possession of child pornography, the

district court covered that by inquiring into whether the nature of the instant

charge—which is similar, but more inflammatory than simple possession of child

pornography—would make jurors incapable of following the court’s instructions or

applying the law. Accordingly, the district court acted within its discretion when it

rejected Antczak’s requested question in favor of the two it asked.

      B. Even if Made in Error, the District Court’s Evidentiary Rulings
         Were Harmless

      We use the abuse-of-discretion standard when reviewing the district court’s

decision to admit or exclude evidence. See, e.g., United States v. Smith, 122 F.3d

1355, 1357 (11th Cir. 1997). Further constraining our review of these issues is that

the harmless-error doctrine applies to evidentiary rulings.        United States v.

Henderson, 409 F.3d 1293, 1300 (11th Cir. 2005); Fed. R. Evid. 103(a); Fed. R.

Crim. P. 52(a) (providing that, under the harmless error standard, “[a]ny error . . .

that does not affect substantial rights must be disregarded”). Included among those

evidentiary rulings subject to this type of review are decisions admitting evidence

under Rule 404(b), see United States v. Phaknikone, 605 F.3d 1099, 1109 (11th

Cir. 2010), and decisions denying motions to suppress on Fifth Amendment

grounds, see Henderson, 409 F.3d at 1300.



                                         12
             Case: 17-11439    Date Filed: 10/09/2018   Page: 13 of 22


      When a trial judge has purportedly errantly admitted evidence in a criminal

prosecution, we ask whether the errors had a “‘substantial influence’ on the

outcome of a case or [left] ‘grave doubt’ as to whether they affected the outcome

of a case.” United States v. Frazier, 387 F.3d 1244, 1266 (11th Cir. 2004) (en

banc) (quoting Kotteakos v. United States, 328 U.S. 750, 764–65 (1946)).

“Overwhelming evidence of guilt is one factor that may be considered in finding

harmless error.” United States v. Guzman, 167 F.3d 1350, 1353 (11th Cir. 1999);

see also United States v. Chavez, 204 F.3d 1305, 1317 (11th Cir. 2000) (finding

that admission of evidence in violation of Fed. R. Evid. 404(b) was harmless error

because the evidence presented at trial was “substantial” and the defendant’s rights

were not affected).

      Here, we need not decide whether Antczak could succeed on the merits of

his evidentiary arguments because even assuming without deciding that he could,

there was overwhelming evidence of his guilt. To illustrate, the Government had

independently of the search of Antczak’s phone, the 500 messages exchanged

among Antczak, Fowler, and “Samantha.” In those 500 messages, which the

Government read to the jury, Antczak was explicit and graphic about his intent to

have sex with “Samantha,” somebody he was told and had no reason to doubt was

just nine years old. Even more illustrative of Antzcak’s desire and his intent to

carry it out, he went to the arranged meeting with a condom (as he was previously


                                        13
             Case: 17-11439       Date Filed: 10/09/2018   Page: 14 of 22


instructed by Fowler) and an iTunes gift card, which “Samantha” had previously

told him to bring in exchange for sex. Nor did Antczak ever dispute that he was

the one messaging Fowler or that he showed up at the hotel. Indeed, he agrees that

this damaging evidence was “never in dispute.”

      In light of this overwhelming evidence and our independent review of the

entire record, we conclude with “fair assurance . . . that the judgment was not

substantially swayed by the error,” even if the district court actually erred.

Kotteakos, 328 U.S. at 765; see also Phaknikone, 605 F.3d at 1109–10 (finding

erroneous admission of evidence from defendant’s internet website, in which he

allegedly portrayed himself as a gangster, was harmless in light of the

overwhelming evidence of his guilt); United States v. Alexander, 835 F.2d 1406,

1411 (11th Cir. 1988) (“[E]ven if the F.B.I. should have obtained a warrant in

these circumstances, the district court’s failure to suppress the evidence was

harmless error.”).   Consequently, Antczak’s challenges to the district court’s

evidentiary rulings are denied.

      C. The District Court Did Not Abuse Its Discretion in Dismissing a
         Juror
      Soon after the jury began deliberating, a juror asked to be relieved. After the

district court questioned the juror about why he wanted to be excused—treading

lightly so as to not disturb the privacy of the jury’s deliberations—the juror stated

that he was unable to follow the court’s instructions. The juror explained that he

                                           14
              Case: 17-11439      Date Filed: 10/09/2018    Page: 15 of 22


had a friend who had been “catfished” 2 and had subsequently committed suicide.

The juror stated that the evidence that Antczak was “catfished” by someone made

it “impossible” for the juror to follow the court’s instructions.

       We “review a district court’s ultimate decision to excuse a juror after the

start of deliberations for abuse of discretion.” United States v. Abbell, 271 F.3d

1286, 1302 (11th Cir. 2001) (citing United States v. Register, 182 F.3d 820, 839

(11th Cir. 1999)). And we afford the district court wide discretion in making that

decision; reversal is appropriate “only if we find that it discharged the juror

‘without factual support, or for a legally irrelevant reason.’” Id. (quoting United

States v. Smith, 918 F.2d 1501, 1512 (11th Cir. 1990)). Because the “demeanor”

of the pertinent juror is important to these determinations, the district court is

“uniquely situated to make the credibility determinations that must be made in

cases like this one: where a juror’s motivations and intentions are at issue.”

Abbell, 271 F.3d at 1303.

       Federal Rule of Criminal Procedure 23(b) permits a district court “to excuse

a juror for just cause after the jury has retired to consider its verdict.” Of particular

relevance here, “just cause” exists when a juror refuses to apply the law or to



      2
          “Catfishing” refers to the phenomenon of internet predators that fabricate online
identities to trick people into emotional or romantic relationships.  Catfishing, Merriam-
Webster Online Dictionary, https://www.merriam-webster.com/dictionary/catfish (last visited
Oct. 8, 2018).


                                            15
             Case: 17-11439     Date Filed: 10/09/2018   Page: 16 of 22


follow the court’s instructions. United States v. Geffrard, 87 F.3d 448, 451–52

(11th Cir. 1996) (excusing a juror who expressed inability to follow judge’s

instructions on the law due to religious beliefs). But the district court must proceed

delicately in assessing the juror and whether good cause exists: “[W]e have

‘caution[ed] district courts to be careful about invading the secrecy of the jury’s

deliberations and to err on the side of too little inquiry as opposed to too much.’”

United States v. Augustin, 661 F.3d 1105, 1133 (11th Cir. 2011) (quoting Abbell,

271 F.3d at 1304 n.20).

      Antczak asserts that the district court abused its discretion in dismissing a

juror after deliberations began because the district court neglected to find good

cause before doing so. But the record directly contradicts Antczak’s assertion. In

fact, the district court confirmed that the juror was not requesting to be removed

due to a personality conflict with another juror or due to a temporary illness.

Instead, the juror told the district court that his incapability was no passing storm:

his emotional and personal connection to some of the evidence made it

“impossible” to follow the court’s instructions. Thus, the district court’s inquiry

was sufficient, and the court had good cause to dismiss the juror because the juror

confirmed that he was unable to carry out his most basic duty—following the

court’s instructions. See Geffrard, 87 F.3d at 451–52. This aspect of Antczak’s

appeal is therefore denied.


                                         16
             Case: 17-11439     Date Filed: 10/09/2018   Page: 17 of 22


      D. The District Court Did Not Abuse Its Discretion in Imposing a 360-
         Month Sentence

      Antczak appeals his 360-month sentence, contending that it was both

procedurally and substantively unreasonable because it was higher than the

guidelines range and because the district court neglected to provide sufficient

justification for that upward departure.      We review the reasonableness of a

sentence under the familiar abuse-of-discretion standard. See United States v. Irey,

612 F.3d 1160, 1188–89 (11th Cir. 2010) (en banc).           Antczak, as the party

challenging the sentence, bears the burden to show that the sentence is

unreasonable in light of the record and the § 3553(a) factors. See United States v.

Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).

      We evaluate the reasonableness of the sentence imposed by the district court

by considering the totality of the circumstances. See id. The district court must

impose a sentence sufficient, but not greater than necessary, to comply with the

purposes listed in § 3553(a), including the need to reflect the seriousness of the

offense, promote respect for the law, provide just punishment for the offense, deter

criminal conduct, protect the public from the defendant’s future criminal conduct,

provide the defendant with needed educational and vocational training, and avoid

unwarranted sentencing disparities. 18 U.S.C. § 3553(a)(2), (6). The court must

also consider the nature and circumstances of the offense, and the history and

characteristics of the defendant. Id. § 3553(a)(1).
                                         17
             Case: 17-11439     Date Filed: 10/09/2018    Page: 18 of 22


      Apportioning weight to the § 3553(a) factors is committed to the sound

discretion of the district court. United States v. Langston, 590 F.3d 1226, 1237

(11th Cir. 2009). We will remand for resentencing only when “‘left with the

definite and firm conviction that the district court committed a clear error of

judgment in weighing the § 3553(a) factors by arriving at a sentence that lies

outside the range of reasonable sentences dictated by the facts of the case.’”

United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008) (quoting United

States v. McBride, 511 F.3d 1293, 1297–98 (11th Cir. 2007)). However, a court

can abuse its discretion when it (1) unjustifiably relies on any one factor, (2)

selects the sentence arbitrarily, (3) bases the sentence on impermissible factors, or

(4) fails to consider relevant factors. Id. at 1191–92.

      “A sentence imposed well below the statutory maximum penalty is an

indicator of a reasonable sentence.” United States v. Dougherty, 754 F.3d 1353,

1362 (11th Cir. 2014); United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir.

2008). If the district court “varies from the Guidelines range, it must offer a

justification sufficient to support the degree of the variance.” United States v.

Kuhlman, 711 F.3d 1321, 1326 (11th Cir. 2013).

      Here, the district court did not abuse its discretion when imposing the 360-

month sentence even though the guidelines range was 188 to 235 months. For

example, the district judge noted the escalating pattern of Antczak’s conduct—


                                          18
             Case: 17-11439     Date Filed: 10/09/2018   Page: 19 of 22


increasing from watching child pornography online to attempting to entice a 9-

year-old into sex in real life. The judge also accounted for the fact that though

Antczak previously had been convicted of only felony obscenity, he had actually

possessed eleven pornographic images of children—a fact the judge concluded

rendered Antczak’s Category I criminal-history classification “woefully”

understated. In addition, the district court was troubled by and gave weight to the

fact that Antczak committed the instant offense mere months after he had

completed sex-offender therapy. And while Antczak complains that the court did

not account for his troubled childhood, the record reflects that the judge did, in

fact, give limited weight to that circumstance.

      Based on this record, we cannot say that the district court procedurally erred

when imposing Antczak’s sentence. And though the sentence exceeded the high

end of the guidelines range, it still fell far below the statutory maximum penalty of

life imprisonment. See, e.g., Gonzalez, 550 F.3d at 1324 (holding that the sentence

was reasonable in part because it was far below the statutory maximum).

      Given the district court’s reasoned and considered explanation of why the

facts in this case warranted a sentence above the guidelines, we conclude the




                                         19
               Case: 17-11439        Date Filed: 10/09/2018       Page: 20 of 22


district court did not abuse its discretion in sentencing Antczak to 360 months’

imprisonment and that Antczak’s sentence was not substantively unreasonable.3

       E. The District Court Did Not Err by Imposing a Lifetime Computer
          Restriction

       The district court restricted Antczak’s cyber life as part of the terms of his

lifetime supervised release: Antczak cannot possess or use a computer unless he

receives prior approval from the court, and any use must be related to authorized

employment. Antczak argues that the lifetime computer restriction violates the

First Amendment, in light of the Supreme Court’s recent decision in Packingham

v. North Carolina, 137 S. Ct. 1730 (2017). In Packingham, the Court concluded

under the circumstances there that foreclosing access to social media violates the

First Amendment. So, Antczak reasons, if the prevention of social-media access

violates the First Amendment, so must use of a computer altogether.

       This Court ordinarily reviews the district court’s imposition of conditions of

supervised release for abuse of discretion. See, e.g., United States v. Moran, 573

F.3d 1132, 1137 (11th Cir. 2009). But because Antczak neglected to raise this


       3
          Antczak contends that it was improper for the district court to consider that he received
a break on the felony obscenity charge. But it was not. Antczak’s report placed him in the
Criminal History Category I even though that category often includes individuals who have
never been previously arrested, let alone convicted. And possessing child pornography—
especially where the offender admits to downloading multiple images—can carry a much more
substantial sentence than the five months of probation the state court imposed on Antczak. Cf.
18 U.S.C.. § 2252(b)(1) (stating that child pornography conviction carries a mandatory minimum
of five years).


                                                20
             Case: 17-11439    Date Filed: 10/09/2018   Page: 21 of 22


challenge below, we review here for plain error. Id. “‘[T]here can be no plain

error where there is not precedent from the Supreme Court or this Court directly

resolving it.’” United States v. Lange, 862 F.3d 1290, 1298 (11th Cir. 2017)

(quoting United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003); see

also United States v. Carpenter, 803 F.3d 1224, 1239 (11th Cir. 2015) (“Carpenter

must show that some controlling authority clearly established that the court erred

in imposing the challenged conditions. He cannot. Therefore, we need not, and do

not, decide whether the court indeed erred, nor whether Carpenter can meet the

other requirements of plain error review.”).

      Packingham does not “directly resolve” Antczak’s appeal since Packingham

dealt with a different issue. Packingham concerned a North Carolina statute that

“impose[d] severe restrictions on persons who already have served their sentence

and are no longer subject to the supervision of the criminal justice system.”

Packingham, 137 S. Ct. at 1737. Put differently, unlike the condition imposed on

Antczak for his past behavior, the statute at issue in Packingham was prospective:

rather than simply punishing a past crime, the statute there made it a new felony

for a person to use all social-media outlets, even though that person had had all

impingements upon his constitutional rights lifted by fully serving the prior

sentence. See id.




                                         21
              Case: 17-11439     Date Filed: 10/09/2018   Page: 22 of 22


        Several other Circuits have noted this distinction and have refused to notice

the error in the same circumstances. See United States v. Halverson, 897 F.3d 645,

658 (5th Cir. 2018) (“[T]he driving concern of the [Packingham] Court was the

imposition of a severe restriction on persons who had served their sentences and

were no longer subject to the supervision of the criminal justice system.”); United

States v. Rock, 863 F.3d 827, 831 (D.C. Cir. 2017) (“The Supreme Court’s recent

decision in Packingham . . . does not make the error plain because Rock’s

condition is imposed as part of his supervised-release sentence, and is not a post-

custodial restriction of the sort imposed on Packingham . . . .”). So Packingham

does not show that the district court plainly erred in imposing a lifetime ban on

Antczak’s computer access.

        And in fact, Eleventh Circuit precedent actually upholds the validity of such

a restriction under appropriate circumstances. In United States v. Carpenter, we

found that the district court did not plainly err by imposing a condition of

supervised release that prohibited the defendant from possessing a computer for

life.   803 F.3d at 1237–40.        We therefore conclude that Antczak has not

demonstrated error, plain or otherwise.

                                               V.

        For the foregoing reasons, we affirm on all issues.

        AFFIRMED.


                                          22
