                                                         [DO NOT PUBLISH]




             IN THE UNITED STATES COURT OF APPEALS
                                                        FILED
                    FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                      ________________________   ELEVENTH CIRCUIT
                                                     JUNE 3, 2008
                                                  THOMAS K. KAHN
                            No. 07-14724
                                                       CLERK
                         Non-Argument Calendar
                       ________________________

                   D. C. Docket No. 07-20214-CR-CMA

UNITED STATES OF AMERICA,


                                                     Plaintiff-Appellee,

                                  versus

SAMMY LEE CARPENTER,

                                                    Defendant-Appellant.


                       ________________________

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

                              (June 3, 2008)

Before BIRCH, DUBINA and BLACK, Circuit Judges.

PER CURIAM:
      Sammy Lee Carpenter appeals his sentence for sex trafficking of a minor

and enticing a minor to engage in prostitution, in violation of 18 U.S.C.

§§ 1591(a)(1), (2), 2422(a), (b). After Carpenter pled guilty, the district court

sentenced him to 180 months’ imprisonment and lifetime supervised release, and

imposed, inter alia, the following special terms of supervised release: (1) prior

written permission of the court before entering into any self-employment; (2) no

unsupervised contact with minors; and (3) no possession of “visual depictions of

minors or adults engaged in sexually explicit conduct.” Carpenter challenges

various issues related to his lifetime term of supervised release, and we address

them in turn.

                    I. LIFETIME SUPERVISED RELEASE

      Carpenter first challenges his lifetime term of supervised release, asserting

(1) it violates the Eighth Amendment, (2) it creates an unwarranted sentencing

disparity among codefendants, and (3) the district court made no factual findings to

support a lifetime term of supervised release. According to the U.S. Code, the

district court may impose a term of supervised release for offenses under §§ 1591

and 2422 of any term of years not less than five, or life. 18 U.S.C. § 3583(k).

Pursuant to the Guidelines, a life term of supervised release may be imposed for

sex offenses, which include inter alia, violations of §§ 1591 and 2422. See



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U.S.S.G. § 5D1.2(b)(2) & comment. (n.1). The policy statement recommends a

statutory maximum term of supervised release for sex offense convictions. See

U.S.S.G. § 5D1.2, p.s.

      Carpenter’s assertion, raised for the first time on appeal, that his life term of

supervised release violates the Eighth Amendment is reviewed for plain error. See

United States v. Moriarty, 429 F.3d 1012, 1018 (11th Cir. 2005) (reviewing

constitutional objection not raised before the district court for plain error). “When

neither the Supreme Court nor this Court has resolved an issue . . . there can be no

plain error in regard to that issue.” Id. at 1019. In Moriarty, we rejected the

argument, by a defendant who had pled guilty to several child pornography

offenses, that a term of lifetime supervised release constituted cruel and unusual

punishment. Id. at 1023-25. Because neither this Court nor the Supreme Court

have held a life term of supervised release for sex trafficking of a minor or enticing

a minor into prostitution violates the Eighth Amendment, and this Court has

affirmed a life term of supervised release for a similar sex offenses, Carpenter

cannot demonstrate any constitutional error that is plain.

      Additionally, Carpenter’s argument his codefendants’ lesser terms of

supervised release create sentence disparities is meritless, as Carpenter’s offense

conduct, culpability, and convictions were significantly different than those of his



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codefendants. Carpenter (1) had sex with J.B. and first forced her to work as a

prostitute in 2003, when she was 14 years old; (2) recruited J.B., forced her into

prostitution, and directly controlled her during the instant offense conduct; and

(3) pled guilty to all four counts, including one count with which his codefendants

were not charged, one count of which his codefendants were acquitted, and two

counts for which the jury found his codefendants did not use force.

      We also reject Carpenter’s contention the lifetime term of supervised release

was unreasonable because the district court made no factual findings to support a

lifetime term of supervised release. The district court imposed Carpenter’s term of

lifetime supervised release after stating it had considered the Guidelines and other

§ 3553(a) factors. See United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005)

(explaining a district court, in determining a reasonable sentence, must correctly

calculate the sentencing range under the Guidelines and then consider the factors

set forth in 18 U.S.C. § 3553(a)). Because he violated §§ 1591 and 2422,

Carpenter was statutorily eligible for a life term of supervised release. See 18

U.S.C. § 3583(k). The Guidelines recommend a life term of supervised release,

and the policy statement recommends the statutory maximum term, i.e., life, for

sex offenses. See U.S.S.G. § 5D1.2, p.s.




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      Additionally, after his term of lifetime supervised release was imposed,

rather than requesting the court’s reasoning for imposing a lifetime term of

supervised release, Carpenter requested the district court include in his written

judgment that supervised release could be revisited depending upon the

defendant’s performance while under supervision. The district court did exactly

what Carpenter requested, and the Judgment reads: “The defendant may petition

the Court for early termination of supervised release.” Accordingly, Carpenter has

not met his burden in demonstrating the life term of supervised release, which was

statutorily permissible, recommended by the Guidelines policy statement, imposed

after consideration of the § 3553(a) factors, and is expressly allowed to be revisited

depending on Carpenter’s performance while under supervision, is unreasonable.

See Talley, 431 F.3d at 788 (11th Cir.2005) (“[T]he party who challenges the

sentence bears the burden of establishing that the sentence is unreasonable in the

light of both [the] record and the factors in section 3553(a).”).

                           II. SPECIAL CONDITIONS

      Carpenter next contends the district court failed to make factual findings

justifying the: (1) “broad ban” on sexually explicit materials extending to material

involving adults; (2) the ban on unsupervised contact with any minor; and




                                           5
(3) restriction on self-employment. He asserts the “broad ban” on sexually explicit

materials extending to material involving adults violates the First Amendment.

       A district court’s imposition of a special condition of supervised release

ordinarily is reviewed for an abuse of discretion, but where, as here, objections

were not preserved for appeal, we review for plain error. See United States v. Zinn,

321 F.3d 1084, 1087-88 (11th Cir. 2003) (noting objections to sentence of

supervised release not clearly stated in the district court are deemed waived, and

review is for plain error). The U.S. Code allows the district court to impose any

condition of supervised release it deems appropriate, so long as it comports with

the factors enumerated in § 3553(a). 18 U.S.C. § 3583(d). The Sentencing

Guidelines permit the sentencing court to impose any conditions of supervised

release that:

       (1) are reasonably related to (A) the nature and circumstances of the
       offense and the history and characteristics of the defendant; (B) the
       need for the sentence imposed to afford adequate deterrence to
       criminal conduct; (C) the need to protect the public from further
       crimes of the defendant; and (D) the need to provide the defendant
       with . . . correctional treatment in the most effective manner; and
       (2) involve no greater deprivation of liberty than is reasonably
       necessary for the purposes set forth above and are consistent with any
       pertinent policy statements issued by the Sentencing Commission.

U.S.S.G. § 5D1.3(b). While the Guidelines recognize “a condition of supervised

release should not unduly restrict a defendant’s liberty, a condition is not invalid



                                           6
simply because it affects a probationer’s ability to exercise constitutionally

protected rights.” Zinn, 321 F.3d at 1089 (citation omitted).

       With regard to the ban on possessing sexually explicit materials, neither this

Court nor the Supreme Court have held a lifetime condition prohibiting a similarly

situated sex offender from possessing any sexually explicit materials is overly

broad. Accordingly, the district court did not plainly err in prohibiting Carpenter

from possessing sexually explicit materials. See Moriarty, 429 F.3d at 1019.

Moreover, a special condition of supervised release is not invalid simply because it

affects an appellant’s ability to exercise constitutionally protected rights. See Zinn,

321 F.3d at 1089.

      Carpenter only challenges the condition prohibiting unsupervised contact

with minors, but does not challenge the broader ban on any contact with minors.

Accordingly, he has abandoned any objection to the broader condition. See United

States v. Ford, 270 F.3d 1346, 1347 (11th Cir. 2001) (noting issues and

contentions not timely raised in briefs are deemed abandoned). To the extent his

claim survives, the district court did not commit plain error by imposing the

prohibition on unsupervised contact because the condition was reasonably related

to the § 5D1.3(b) factors and involved no greater deprivation of liberty than

reasonably necessary to meet the purposes of the factors. See U.S.S.G. § 5D1.3(b).



                                           7
Carpenter’s offense conduct involved an intimate relationship with a minor, taking

provocative pictures of her, and forcing her into prostitution at two different times.

Accordingly, prohibiting Carpenter from having unsupervised contact with minors

was reasonably related to the nature and circumstances of the offense and the

history and characteristics of the defendant, the need to afford deterrence, the need

to protect the public, and his correctional treatment. See U.S.S.G. § 5D1.3(b).

      Finally, the district court did not commit plain error by requiring Carpenter

to obtain the court’s approval before entering into any self-employment, as he has

exhibited a pattern of “self employment” consisting of forcing women into

prostitution, and he admitted to not having formal employment for at least 20 years

prior to the offenses. Moreover, this condition involves no great deprivation of

liberty because he may obtain court approval for legitimate self-employment.

Accordingly, we affirm Carpenter’s sentence.

      AFFIRMED.




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