Case: 19-10797     Document: 00515531490        Page: 1     Date Filed: 08/18/2020




         United States Court of Appeals
              for the Fifth Circuit
                                                                     United States Court of Appeals
                                                                              Fifth Circuit

                                                                            FILED
                                                                      August 18, 2020
                                No. 19-10797                           Lyle W. Cayce
                                                                            Clerk

 United States of America,

                                                          Plaintiff — Appellee,

                                    versus

 Christopher J. Abbate,

                                                     Defendant — Appellant.



                 Appeal from the United States District Court
                     for the Northern District of Texas
                           USDC No. 4:10-CR-29-1


 Before Davis, Jones, and Willett, Circuit Judges.
 Per Curiam:
       Christopher Abbate challenges two special conditions of his
 supervised release following the revocation of his first term of supervised
 release. He argues a condition prohibiting possession of pornographic matter
 is vague and overbroad in violation of his due process and First Amendment
 rights, and a condition prohibiting use of gaming consoles is overly
 restrictive. We modify the gaming console condition but leave the other
 conditions of his supervised release unchanged. We therefore AFFIRM as
 MODIFIED the district court’s judgment.
Case: 19-10797         Document: 00515531490              Page: 2   Date Filed: 08/18/2020




                                      No. 19-10797


                               I. BACKGROUND
        In June 2010, Abbate pled guilty to possessing child pornography. 1
 The district court sentenced him to 120 months of imprisonment, followed
 by a lifetime term of supervised release. Less than a year after Abbate
 completed his prison sentence, he violated the conditions of his supervised
 release. The district court sentenced him to six months of imprisonment,
 followed by another lifetime term of supervised release. Abbate does not
 challenge the district court’s revocation of his supervised release.
        Abbate does, however, challenge two terms of his supervised release,
 which are now before us on review. First, he challenges the term that
 provides he not have under his control any “pornographic matter.” Second,
 he challenges the term that he “shall not use or possess any gaming
 consoles . . . or devices, without prior permission from the probation
 officer.” Abbate objected to the pornography condition at the hearing. He
 did not object to the gaming console condition. He launched a timely appeal.
                                II. DISCUSSION
        Abbate argues that the pornography condition is overbroad and vague,
 in violation of his due process and First Amendment rights. He also contends
 that the gaming console condition is overly restrictive in violation of 18
 U.S.C. § 3583(d). We address these concerns in turn.
 A. The Pornography Condition
        Abbate first asserts that the pornography condition of his supervised
 release—that he cannot possess or have under his control “any pornographic
 matter”—is impermissibly vague in violation of his due process rights and
 overbroad in violation of his First Amendment rights. Because Abbate


        1
            See 18 U.S.C. §§ 2252(a)(2), 2252(a)(4)(B).




                                            2
Case: 19-10797             Document: 00515531490           Page: 3         Date Filed: 08/18/2020




                                         No. 19-10797


 preserved his challenge at the sentencing hearing, we review the district
 court’s supervised release condition for abuse of discretion. 2
         It is a basic principle of due process that a statute may not be “so vague
 that it fails to give ordinary people fair notice of the conduct it punishes, or
 so standardless that it invites arbitrary enforcement.” 3 This principle applies
 with equal force to supervised release conditions. 4 Even so, a lack of
 specificity does not necessarily void the condition. 5 “[W]hile a probationer
 is entitled to notice of what behavior will result in a violation, so that he may
 guide his actions accordingly,” supervised release conditions “do not have
 to be cast in letters six feet high, or to describe every possible permutation,
 or to spell out every last, self-evident detail.” 6 Categorical terms are
 inevitable and can provide adequate notice so long as there exists “a
 commonsense understanding of what activities the categories encompass.” 7
         Abbate argues that there is no commonsense understanding of the
 categorical term “pornography.” The question, then, is whether a
 reasonable person can predict what materials Abbate is and is not allowed to
 have.
         We have not yet addressed the stand-alone term “pornographic.” But
 in United States v. Brigham, we considered a condition of supervised release
 providing that the defendant (Brigham) neither possess nor control “any


         2
             United States v. Fields, 777 F.3d 799, 802 (5th Cir. 2015).
         3
             Johnson v. United States, 135 S. Ct. 2551, 2556 (2015).
         4
             United States v. Paul, 274 F.3d 155, 166 (5th Cir. 2001).
         5
             See id.
         6
          Id. at 166–67 (quoting United States v. Gallo, 20 F.3d 7, 12 (1st Cir. 1994))
 (quotation marks omitted).
         7
             Id. at 167.




                                               3
Case: 19-10797             Document: 00515531490       Page: 4   Date Filed: 08/18/2020




                                        No. 19-10797


 pornographic, sexually oriented or sexually stimulating materials.” 8 The
 district court found Brigham violated the conditions of his supervised release
 after viewing a videotape of himself and his ex-girlfriend having sex. 9 On
 appeal, Brigham argued that the district court improperly applied the
 condition, and that it was vague. 10 Reviewing the issue on an “as applied”
 basis for abuse of discretion, we rejected Brigham’s argument. 11 We also
 emphasized that the definitions of “child pornography” and “sexually
 explicit conduct” set forth in 18 U.S.C. §§ 2256(2) and (8) offered “some
 practical insight” into the condition’s meaning. 12
        In United States v. Simmons, the Second Circuit used similar reasoning
 in interpreting the term “pornography.” 13 The court there observed that,
 “[f]or purposes of evaluating artistic or cultural merit, the term
 ‘pornography’ is notoriously elusive,” and that any effort to define the word
 is a “subjective, standardless process, heavily influenced by the individual,
 social, and cultural experience of the person making the determination.” 14
 But the court concluded that this lack of clarity is “significantly eliminated
 in the context of federal criminal law.” 15 As we did in Brigham, the court cited
 to § 2256, which provides that “‘child pornography’ means any visual
 depiction, including any photograph, film, video, picture, or computer or
 computer-generated image or picture, whether made or produced by

        8
             569 F.3d 220, 223 (5th Cir. 2009).
        9
             Id. at 233.
        10
             Id. at 232.
        11
             Id.
        12
             Id. at 233.
        13
             343 F.3d 72 (2d Cir. 2003).
        14
             Id. at 81.
        15
             Id.




                                              4
Case: 19-10797           Document: 00515531490             Page: 5        Date Filed: 08/18/2020




                                         No. 19-10797


 electronic, mechanical, or other means, of sexually explicit conduct.” 16 The
 court reasoned that, when references to minors are omitted, the child
 pornography law “defines the more general category of pornography,”
 thereby eliminating any vagueness concerns. 17
         We agree with the Second Circuit. 18 As difficult as it may be to pin
 down a definition of the term “pornography” in artistic contexts, that
 dilemma does not present itself here—the criminal context provides us the
 necessary commonsense understanding. 19 Abbate’s vagueness challenge fails
 and, in turn, so does his First Amendment overbreadth challenge. 20
         Abbate brings another First Amendment overbreadth challenge: He
 argues that the pornography condition is overbroad because it prohibits not
 only his possession of sexually explicit material involving children but also
 that involving adults. He stresses that there is no nexus between adult


         16
            18 U.S.C. § 2256(8) (emphasis added). The same section also defines
 “sexually explicit conduct” in detail (including sexual intercourse, bestiality,
 masturbation, sadistic or masochistic abuse, and lascivious exhibition of the anus,
 genitals, or pubic area). Id. §§ 2256(2)(A) and (2)(B).
         17
              Simmons, 343 F.3d at 82.
         18
           See also United States v. Bordman, 895 F.3d 1048, 1062 (8th Cir. 2018), cert.
 denied, 139 S. Ct. 1618 (2019) (terms “pornography” and “erotica” were not
 unconstitutionally vague). But see United States v. Guagliardo, 278 F.3d 868, 872 (9th
 Cir. 2002) (per curiam) (condition prohibiting defendant from possessing any
 pornography was unconstitutionally vague); United States v. Loy, 237 F.3d 251 (3d Cir.
 2001) (holding that the term “pornography,” which can include the likes of Vladimir
 Nabokov’s Lolita and medical school textbooks, is vague and overbroad).
         19
              United States v. Paul, 274 F.3d 155, 167 (5th Cir. 2001).
         20
           Because Abbate alleges the supervised release condition is vague and, in turn,
 encompasses protected conduct, the vagueness and overbreadth analysis invariably
 overlap. See Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495
 n.6 (1982) (“[A] court should evaluate the ambiguous as well as the unambiguous scope
 of the enactment. To this extent, the vagueness of a law affects overbreadth analysis.”).




                                               5
Case: 19-10797           Document: 00515531490             Page: 6      Date Filed: 08/18/2020




                                           No. 19-10797


 pornographic matter and his offense (possession of child pornography).
 Abbate preserved his challenge, so we review for abuse of discretion. 21
         “A district court has wide discretion in imposing terms and conditions
 of supervised release.” 22 That discretion, however, has limits. “A special
 condition of supervised release . . . must comply with § 3583(d) to survive a
 First Amendment challenge.” 23 Pertinent here, § 3583(d) requires that a
 supervised release condition result in no greater deprivation of liberty than is
 reasonably necessary. 24
         When a defendant’s crime is “sexual in nature,” it is “reasonable for
 the district court to restrict [the defendant’s] access to sexually stimulating
 material more broadly in an effort to prevent future crimes or aid in his
 rehabilitation.” 25 And we have found a nexus between possession of legal
 adult pornography and child pornography before. 26 In United States v. Miller,
 for example, we held that because videos seized from the defendant’s
 residence depicted both nude adults and nude minors, his “interest in




         21
              United States v. Caravayo, 809 F.3d 269, 272 (5th Cir. 2015) (per curiam).
         22
              Paul, 274 F.3d at 164.
         23
              Caravayo, 809 F.3d at 274.
         24
              18 U.S.C. § 3583(d)(2).
         25
              United States v. Ellis, 720 F.3d 220, 227 (5th Cir. 2013) (per curiam).
         26
            United States v. Miller, 665 F.3d 114, 136 (5th Cir. 2011); see also United States
 v. McGee, 559 F. App’x 323, 329 (5th Cir. 2014) (district court did not abuse its
 discretion in prohibiting defendant with past history of child molestation from
 possessing or viewing sexually arousing material—a restriction that was “a precaution,
 purely protective”); Ellis, 720 F.3d at 227 (upholding, in a child pornography case, a
 condition restricting possession of sexually stimulating material because the crime was
 sexual in nature, and the court sought to prevent future crimes and aid in his
 rehabilitation).




                                                6
Case: 19-10797           Document: 00515531490             Page: 7      Date Filed: 08/18/2020




                                         No. 19-10797


 ‘sexually stimulating’ materials involving adults is intertwined with his
 sexual interest in minors and thus, his offense.” 27
         The record reveals that, like in Miller, Abbate’s interest in child
 pornography is intertwined with adult pornography. Abbate’s presentence
 report documented that he “owned numerous adult pornographic movies
 with titles suggestive of young participants.” It also reported images on
 Abbate’s hard drive depicting children engaging in sexual acts with adults. At
 the revocation hearing, Abbate’s psychotherapist determined that Abbate’s
 possession of sexually explicit material could result in recidivism.
         It is “not difficult to infer” that Abbate’s access to such materials
 could “influence[] his subsequent behavior,” putting both his rehabilitation
 and the public at risk. 28 Because it complies with § 3583(d), the special
 condition survives Abbate’s First Amendment challenge.
 B. The Gaming Console Condition
         Abbate contends that the special condition prohibiting his use or
 possession of “any gaming consoles” without prior permission is overly
 restrictive in violation of § 3583(d)(2). He argues that the condition involves
 a greater deprivation of liberty than necessary. Since he did not object at the
 hearing, we review for plain error. 29
         Under this standard, we apply a four-prong test to determine if a trial
 court plainly erred. 30 Abbate must identify (1) a forfeited error, (2) that is


         27
           665 F.3d at 136. Although Miller was a plain error case, the court held it would
 have reached the same conclusion “[e]ven were [it] to review for an abuse of
 discretion.” Id.
         28
              United States v. Sealed Juvenile, 781 F.3d 747, 756 (5th Cir. 2015).
         29
              United States v. Weatherton, 567 F.3d 149, 152 (5th Cir. 2009).
         30
              United States v. Escalante-Reyes, 689 F.3d 415, 419 (5th Cir. 2012) (en banc).




                                               7
Case: 19-10797           Document: 00515531490             Page: 8     Date Filed: 08/18/2020




                                         No. 19-10797


 clear and obvious, and (3) that affected his substantial rights.31 If he satisfies
 those three requirements, we may, in our discretion, remedy the error, but
 “only if the error seriously affect[s] the fairness, integrity or public
 reputation of judicial proceedings.” 32
         The district court imposed a blanket ban on gaming consoles after
 Abbate lied about getting rid of his internet-capable PlayStation 4, in violation
 of his earlier supervised release condition that he not use or own any device
 that allows internet access. Abbate agrees that a prohibition on modern
 devices that rely on internet connection is appropriate. He only requests that
 we use our discretion to lessen the condition’s scope, such that it does not
 include consoles that cannot access the internet.
         We recently addressed a similar special condition in United States v.
 Montanez. 33 After Montanez pled guilty to a single count of enticement of a
 child, the district court imposed a condition restricting the use or possession
 of any gaming console. 34 On plain error review, we held that the condition
 was overbroad, and narrowed it to its commonsense construction: a
 prohibition on gaming consoles that allow internet communication. 35


         31
              Puckett v. United States, 556 U.S. 129, 135 (2009).
         32
          Id. (quoting United States v. Olano, 507 U.S. 725, 736 (1993)) (quotation
 marks omitted).
         33
           797 F. App’x 145 (5th Cir. 2019), cert. denied, No. 19-7998, 2020 WL 1906695
 (U.S. Apr. 20, 2020). While an unpublished opinion issued after January 1, 1996 is not
 controlling precedent in our circuit, we may consider it as persuasive authority. See
 Ballard v. Burton, 444 F.3d 391, 401 n. 7 (5th Cir. 2006). And, if we have found plain
 error in one case, we can infer plain error in another, factually analogous case. See, e.g.,
 United States v. Lozano, 791 F.3d 535, 539 (5th Cir. 2015) (relying on precedent of
 finding plain error in similar cases in holding the district court committed plain error).
         34
              Id. at 146, 150.
         35
              Id. at 151–52.




                                               8
Case: 19-10797       Document: 00515531490            Page: 9      Date Filed: 08/18/2020




                                     No. 19-10797


        The district court’s obvious intent in imposing this special condition
 was to prevent Abbate from using a gaming console’s internet-access
 features. A ban on all gaming consoles does not achieve that purpose, and so,
 like in Montanez, we use our discretion to modify the special condition. 36 We
 narrow the condition to forbid Abbate from using or possessing any gaming
 console or device that allows for internet access without prior permission
 from the probation officer.
                             III. CONCLUSION
        For the foregoing reasons, the district court’s judgment is
 AFFIRMED as MODIFIED.




        36
           We have discretion to modify special conditions without vacating or
 remanding to the district court. See 28 U.S.C. § 2106 (federal appellate courts may
 “modify . . . any judgment, decree, or order of a court lawfully brought before it for
 review”); Sealed Appellee v. Sealed Appellant, 937 F.3d 392, 401 (5th Cir. 2019)
 (modifying the judgment to “remove any doubt regarding the scope of the special
 conditions and what they require of Appellant, leaving the other special conditions
 unchanged”).




                                           9
