     Case: 18-60021      Document: 00515308954         Page: 1    Date Filed: 02/13/2020




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

                                                                              FILED
                                      No. 18-60021                     February 13, 2020
                                                                         Lyle W. Cayce
UNITED STATES OF AMERICA,                                                     Clerk


              Plaintiff - Appellee

v.

DAVID SMITH-GARCIA, formerly known as David Garland Atwood, II,

              Defendant - Appellant




                  Appeals from the United States District Court
                     for the Southern District of Mississippi
                            U.S.D.C. No. 3:15-CR-45-1


Before DAVIS, HAYNES, and OLDHAM, Circuit Judges.
PER CURIAM:*
       Following a conviction for two federal crimes, David Smith-Garcia thrice
had his supervised release revoked and replaced by new sentences of
imprisonment and supervised release. He appeals the most recent revocation
sentence on several grounds. We AFFIRM the substance of the district court’s
judgment but REMAND for the limited purpose of correcting a clerical error.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-60021
                              I.    Background
        In 2005, Smith-Garcia (then known as David Garland Atwood II) pleaded
guilty to one count of wire fraud (Count Two) and one count of using a facility
in interstate commerce to induce a minor to engage in sexual activity (Count
Eight). The district court imposed two concurrent sentences of sixty-three
months’ imprisonment followed by two concurrent five-year terms of
supervised release. Smith-Garcia was released to supervision on January 23,
2009.
        On March 23, 2010, the district court revoked Smith-Garcia’s supervised
release and re-sentenced him to “a total term of” five months’ imprisonment,
followed by “a term of” fifty-five months on supervised release. The court did
not specify which counts the revocation and re-sentencing referred to. This
second round of supervised release began on June 11, 2010.
        The district court again revoked Smith-Garcia’s supervised release on
March 29, 2013.      This time, the district court imposed two consecutive
sentences of thirty-six months’ imprisonment on Counts Two and Eight. The
district court also imposed two concurrent terms of supervised release:
nineteen months on Count Two and a life term on Count Eight. One condition
of release was a prohibition on using internet-capable devices without
permission. Smith-Garcia’s third round of supervised release began on April
13, 2017. Smith-Garcia appealed and lost. United States v. Atwood, 581 F.
App’x 455 (5th Cir. 2014).
        The events giving rise to this appeal began later in 2017, when the
Government charged Smith-Garcia with eight supervised-release violations:
(1) traveling twenty-seven miles per hour over the posted speed limit; (2) using
an internet-capable Apple device; (3) having an active Facebook account;
(4) traveling without permission to Monroe, Louisiana; (5) leaving the judicial


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                                     No. 18-60021
district without permission to meet someone named Job Rivera; (6) extorting
money and sexual favors from Rivera by threatening to reveal private
information in violation of Mississippi Code § 97-3-82; (7) exposing Rivera to
HIV in violation of Mississippi Code § 97-27-14(1); and (8) possessing an
internet-capable GPS device.
         Smith-Garcia pleaded true to the allegation that he had traveled without
permission to Monroe. The Government withdrew the charge that Smith-
Garcia possessed an internet-capable GPS tracking device.              Following a
lengthy revocation hearing, the district court found Smith-Garcia guilty of the
remaining charges.        The court sentenced him to seventy-two months’
imprisonment, comprising consecutive thirty-six-month terms, and re-imposed
the life term of supervised release on Count Eight.
         This timely appeal ensued.       On appeal, Smith-Garcia makes five
arguments: (1) that the district court abused its discretion by denying his
repeated motions for the judge to recuse and denying an evidentiary hearing
on the motions, (2) that the Government did not meet its burden of proof for
any violation of release conditions, (3) that the 2013 release condition
restricting internet use was unconstitutional, (4) that his 2017 sentence was
unlawful, and (5) that the 2017 judgment on revocation contains a clerical
error.

                               II.    Discussion
         Smith-Garcia’s primary argument is that the imposition of two
consecutive thirty-six-month terms of imprisonment at the 2017 revocation
proceedings exceeded the statutory maximum. Specifically, he argues that the
district court erred in 2013 and in 2017 by imposing two consecutive sentences
of imprisonment because, after the 2010 revocation, there was only one term
of supervised release for the district court to revoke. Smith-Garcia did not


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                                 No. 18-60021
raise this argument before the district court.
      We will uphold a revocation sentence “unless it is in violation of law or
plainly unreasonable.” United States v. Mathena, 23 F.3d 87, 89 (5th Cir.
1994). We generally review de novo the question whether a specific sentence
exceeds the statutory maximum, even if not raised below. United States v.
Oswalt, 771 F.3d 849, 850 (5th Cir. 2014). Yet because the issue here involves
the question of whether the district court could impose two sentences (derived
from two original convictions and terms of supervised release) rather than one,
we review his unpreserved argument for plain error. See United States v. Bain,
670 F. App’x 211, 211–12 (5th Cir. 2016) (per curiam).
      Smith-Garcia derives his argument from opinions by our sister circuits.
In United States v. Eskridge, the Seventh Circuit held that a district court may
not revoke a single term of supervised release and impose two terms in its
stead. 445 F.3d 930, 934 (7th Cir. 2006). The Third and Eleventh Circuits
have agreed in a different context. United States v. Dillon, 725 F.3d 362, 366–
68 (3d Cir. 2013) (original sentence ordered one term of supervised release);
United States v. Starnes, 376 F. App’x 942, 944–46 (11th Cir. 2010) (per
curiam) (same). We have yet to consider the question. See Bain, 670 F. App’x
at 211–12 (declining to reach the issue because the defendant could not
demonstrate under plain error review that any error affected his substantial
rights).
      We need not decide this issue in this case. Assuming arguendo that
Smith-Garcia is correct about the 2010 sentencing process, the district court
sentenced Smith-Garcia to two terms of supervised release in 2005, one term
in 2010, two terms in 2013, and two terms in 2017. Therefore, any challenge
to the 2017 sentence is necessarily a challenge to the 2013 sentence. In other
words, only if the two 2013 sentences were improper are the two 2017


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sentences improper.         He has already unsuccessfully challenged the 2013
proceedings, and thus he cannot collaterally attack them in this appeal,
including on grounds not properly raised in prior proceedings. 1 See United
States v. Stiefel, 207 F.3d 256, 259–60 (5th Cir. 2000) (holding that the
defendant could not attack his current revocation sentence by seeking review
of a prior sentence that he did not appeal). Consequently, because he cannot
now challenge the 2013 sentences, he cannot challenge the 2017 sentences on
this ground.
       In any event, Smith-Garcia’s argument fails because he has not shown
plain error. An error can be plain only if it was “clear under current law,”
United States v. Olano, 507 U.S. 725, 734 (1993), and not “subject to reasonable
dispute,” Puckett v. United States, 556 U.S. 129, 135 (2009). First, as Smith-
Garcia’s briefing reflects, the effect of the 2010 judgment is unclear. The
district court might have revoked and re-sentenced under Count Two or Count
Eight or both; and if it did not revoke the supervised release on Count Eight in
2010, then there were still two terms in existence in 2013, not one. If the court
instead should have revoked both terms under 18 U.S.C. § 3583(g)—a
conclusion the record does not support 2—then the court should have also re-
sentenced Smith-Garcia to two prison terms.                   We cannot say for certain



       1 He did not raise this claim on direct appeal. We denied a certificate of appealability
for this very argument in Smith-Garcia’s 28 U.S.C. § 2255 petition for the 2013 judgment
because it was newly raised on appeal. United States v. Smith-Garcia, No. 18-60022 (5th Cir.
Jul. 18, 2019).
       2  Under § 3583(g), if the defendant commits certain drug or firearms violations, “the
court shall revoke the term of supervised release and require the defendant to serve a term
of imprisonment,” subject to an exception in subsection (d). 18 U.S.C. § 3583(d), (g). In 2010,
the violations charged included only one allegation involving drugs: one positive test for
anabolic steroids. By contrast, for drug tests to trigger the mandatory revocation terms of
§ 3583(g) (subject to the subsection (d) exception), the statute requires “test[ing] positive for
illegal controlled substances more than 3 times over the course of 1 year.” Id. at § 3583(g)(4).


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                                 No. 18-60021
whether or how the district court erred, so any error was not clear or obvious.
Moreover, we have yet to decide whether, following dual convictions and terms
of supervised release, an intervening single term of supervised release may be
thereafter followed by two sentences upon a subsequent revocation; most of our
sister circuits also have not addressed this precise question. An error is not
plain if it concerns a matter of first impression or requires an extension of
precedent. See United States v. Garcia-Gonzalez, 714 F.3d 306, 318 (5th Cir.
2013).
      In sum, we decline to grant relief to Smith-Garcia on this ground for the
reasons stated above.     We also find no merit to Smith-Garcia’s other
challenges.   His motions for Judge Wingate to recuse—relying on Smith-
Garcia’s own writings, adverse rulings by the judge, unsubstantiated social-
media posts, and the participation at some point in these proceedings of a
former law clerk (who is not alleged to have worked on Smith-Garcia’s case
during his clerkship)—are frivolous. With respect to his other issues, the
supervised-release violations are supported by ample evidence in the record,
even excluding the portions that Smith-Garcia challenges as inadmissible. A
missing written statement of reasons is not plain error here because the
grounds for the district court’s findings are apparent from the record. See
United States v. McCormick, 54 F.3d 214, 220 (5th Cir. 1995).            Nor is it
unconstitutional to impose a conditional lifetime ban on internet and social-
media access. United States v. Halverson, 897 F.3d 645, 657–58 (5th Cir. 2018)
(holding that it does not violate the First Amendment to restrict a person under
supervised release from accessing social media); United States v. Duke, 788
F.3d 392, 399–401 (5th Cir. 2015) (per curiam) (holding that only absolute,
unconditional lifetime internet bans violate due process). We therefore affirm
the substance of the district court’s judgment.


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                                   No. 18-60021
      We last address a clerical error. The Government alleged in its amended
petition that Smith-Garcia committed extortion under Mississippi Code § 97-
3-82, but the judgment on revocation stated that he violated section 97-45-
15(b), which does not exist.       We remand under Federal Rule of Criminal
Procedure 36 for the limited purpose of correcting this error. See United States
v. Gomez, 548 F. App’x 221, 230 (5th Cir. 2013) (per curiam).

                            III.     Conclusion
      We AFFIRM the district court’s judgment in all substantive respects, but
we REMAND for the limited purpose of correcting the clerical error in the
judgment.




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