     Case: 18-50541        Document: 00515356760       Page: 1    Date Filed: 03/24/2020




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

                                                                                FILED
                                      No. 18-50541                        March 24, 2020
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


           Plaintiff - Appellee

v.

LUIS ANTONIO HERNDON, true name Luis Antonio Herndon-Aguirre,

           Defendant - Appellant



                     Appeal from the United States District Court
                          for the Western District of Texas
                              USDC No. 3:17-CR-2480-1


Before HIGGINBOTHAM, JONES, and DUNCAN, Circuit Judges.
PER CURIAM:*
       Appellant Luis Antonio Herndon challenges certain conditions of
supervised release relating to use of computers and the internet and to his
ability to associate with minors. Reviewing for plain error, we vacate all special
conditions of supervised release and remand to the district court for further
consideration.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-50541

                                         I.
      Luis Antonio Herndon pled guilty to one count of receipt and distribution
of a visual depiction involving the sexual exploitation of a minor and one count
of possession of child pornography. During the investigation leading to his
arrest, preliminary examination of Herndon’s laptop and cell phone revealed
10 files containing child pornography. Herndon ultimately admitted to sending
and receiving child pornography online but claimed he had never touched a
child inappropriately. He also admitted he had played with children who live
near him and had given them candy or food, “but never with a purpose to entice
them to perform any sexual activity.” A forensic examination of Herndon’s
laptop revealed over 13,000 images and 100 videos containing “child sexual
abuse material.” Herndon’s cellular phone contained over 200 images and two
videos depicting similar material.
      At the sentencing hearing, Herndon confirmed that he had no objections
to the PSR and that he had discussed and reviewed the PSR with counsel. The
district court sentenced Herndon within the applicable Guidelines range to two
concurrent custodial terms of 136 months and a life term of supervised release.
The district court also ordered Herndon to pay $25,500 in restitution to the
victims of his offense and a special assessment of $5,000 for each count of
conviction pursuant to the Justice for Victims of Trafficking Act of 2015. 1
      Relevant here, the district court imposed several special conditions of
supervised release, all of which were recommended in the PSR. On appeal,
Herndon challenges the conditions barring him from (1) using or possessing




      1   See 18 U.S.C. § 3014
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computers, 2 (2) accessing the internet, 3 (3) having contact with children, 4 and
(4) going to places where children might be present. 5 Herndon contends that
these lifetime bans are overbroad and unduly burdensome and that the district
court failed to articulate reasons or make factual findings supporting them.
                                             II.
        We review criminal sentences, including conditions of supervised
release, in two steps. 6 First, we ensure that the district judge committed no
significant procedural error, then we review the substantive reasonableness of
the sentence for abuse of discretion. 7 As Herndon concedes, he did not object to
the special conditions or the district court’s lack of reasoning, so we review for
plain error. 8 Plain error exists if (1) there is an error, (2) the error is plain, and
(3) the error affects the defendant’s substantial rights. 9 “Once those three
conditions have been met, ‘the court of appeals should exercise its discretion to
correct the forfeited error if the error seriously affects the fairness, integrity or




       2 “The defendant shall not possess and/or use computers (as defined in 18 U.S.C.
§ 1030(e)(1)), or other electronic communications or data storage devices or media.”
       3 “The defendant shall not access the Internet.”
       4 “The defendant shall not have direct contact with any child the defendant knows or

reasonably should know to be under the age of 18, including his own children, without the
permission of the probation officer. If the defendant has any direct contact with any child the
defendant knows or reasonably should know to be under the age of 18, including his own
children, without the permission of the probation officer, the defendant must report this
contact to the probation officer within 24 hours. Direct contact includes written
communication, in-person communication, or physical contact. Direct contact does not
include incidental contact during ordinary daily activities in public areas.”
       5 “The defendant shall not go to, or remain at any place where the defendant knows

children under the age of 18 are likely to be, including parks, schools, playgrounds, and
childcare facilities.”
       6 United States v. Scott, 821 F.3d 562, 567 (5th Cir. 2016).
       7 Id.
       8 See United States v. Sealed Juvenile, 781 F.3d 747, 751 (5th Cir. 2015) (applying

plain-error review to a lack of reasons for imposing special conditions).
       9 United States v. Gordon, 838 F.3d 597, 604 (5th Cir. 2016) (quoting United States v.

Garcia-Carrillo, 749 F.3d 376, 378 (5th Cir. 2014) (per curiam)).
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public reputation of judicial proceedings.’” 10 The exercise of discretion at this
fourth prong requires a “case-specific and fact-intensive inquiry,” as “[t]here
may be instances where countervailing factors” convince this Court that the
fairness, integrity and public reputation of the proceedings “will be preserved
absent correction.” 11
                                            III.
        “A district court has wide, but not unfettered, discretion in imposing
terms and conditions of supervised release.” 12 That discretion is limited in two
ways:
        First, the condition of supervised release must be “reasonably
        related” to one of four statutory factors: (1) the nature and
        characteristics of the offense and the history and characteristics of
        the defendant; (2) the need for deterrence of criminal conduct; (3)
        the need to protect the public from further crimes of the defendant;
        and (4) the need to provide the defendant with vocational training,
        medical care, or other correctional treatment. Second, the
        condition must be narrowly tailored such that it does not involve a
        “greater deprivation of liberty than is reasonably necessary” to
        fulfill the purposes set forth in [18 U.S.C.] § 3553(a). 13

        Further, the sentencing court must state “the reasons for its imposition
of the particular sentence.” 14 However, even where the district court does not
make factual findings or state reasons for a special condition, we may still
affirm that condition if we can infer the district court’s reasoning after an
examination of the record. 15



        10Rosales-Mireles v. United States, 138 S. Ct. 1897, 1905 (2018) (quoting Molina–
Martinez v. United States, 136 S.Ct. 1338, 1342 (2016)).
       11 Id. at 1909.
       12 United States v. Duke, 788 F.3d 392, 398 (5th Cir. 2015) (per curiam).
       13 Scott, 821 F.3d at 569–70 (quoting Duke, 788 F.3d at 398) (citation omitted).
       14 United States v. Salazar, 743 F.3d 445, 451 (5th Cir. 2014) (quoting 18 U.S.C.

§ 3553(c)).
       15 United States v. Alvarez, 880 F.3d 236, 240 (5th Cir. 2018) (citing United States v.

Caravayo, 809 F.3d 269, 275 (5th Cir. 2015)).
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       Herndon contends the district court committed procedural error in
failing to make factual findings justifying the four conditions at issue. 16 Indeed,
the district court gave no reasons for the special conditions orally at
sentencing. In other cases, though, we have found the § 3553 allocution
requirement was satisfied by written reasons included in the judgment 17 or
Statement of Reasons (SOR). 18 In this case, neither the judgment nor the SOR
included additional reasons or factual findings, although the PSR (adopted by
the court in its SOR) accompanied its recommendations with brief reasons.19
But the PSR’s reasons are conclusory recitations of the statutory factors or
otherwise do not aid our review. 20 Thus, we will find clear and obvious error



       16  As an initial matter, the Government argues that Herndon failed to raise this “fact-
involved sentencing objection” below and that “[q]uestions of fact capable of resolution by the
district court upon proper objection . . . can never constitute plain error.” United States v.
Lopez, 923 F.2d 47, 50 (5th Cir. 1991). Yet the issue Herndon raises relates to procedural
error, not to a disputed fact issue. We routinely reviewed this question—whether a district
court committed plain error by failing to provide reasons for special conditions of supervised
release where the defendant failed to object—without reference to the Lopez rule regarding
fact-based challenges. See, e.g., United States v. Sealed Juvenile, 781 F.3d 747, 751–52 (5th
Cir. 2015). In any event, the Supreme Court held “there is no legal basis for the Fifth Circuit’s
practice of declining to review certain unpreserved factual arguments for plain error” under
Lopez. Davis v. United States, 589 U.S. ____ (2020).
        17 Sealed Juvenile, 781 F.3d at 752 (looking to reasons offered in the judgment where

none were provided during the sentencing hearing).
        18 Duke, 788 F.3d at 396 (looking to reasons offered in the SOR).
        19 The computer and internet bans were recommended “because of the nature and

circumstances of the instant offense, to protect the public from further crimes, and to support
any of the recommendations made by the therapist during Herndon-Aguirre’s sex offender
treatment.” The associational ban was recommended “due to the nature and circumstances
of the instant offense, and to deter Herndon-Aguirre from engaging in behavior associated
with the instant offense, and monitor compliance with the requirements of the Sex Offender
Registration and Notification Act, once he is registered as a sex offender.” The locational ban
was recommended “because of the nature and circumstances of the instant offense, to closely
monitor Herndon-Aguirre’s behavior in the community, to protect the public from further
crimes, and to ensure Herndon-Aguirre is in compliance with the requirements under the
Sex Offender Registration and Notification Act once he is registered as a sex offender.”
        20 In United States v. Garcia, we found error on plain-error review where the district

court offered a mere oral recitation of two factors—deterrence and protection of the public—
without more. 638 F. App’x 343, 346 (5th Cir. 2016) (unpublished); see id. at 345 (“The court
stated that it used ‘the factors in 3553(a) to come up with a place in the Guidelines. . . . I
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and proceed to prongs three and four unless we can infer justification for the
conditions from the record.
                                           A.
      We begin with the conditions banning computer and internet access, the
imposition of which was reversible error. The court imposed these
unconditional, lifetime bans without giving reasons to justify them. Nor can
we infer their justification from the record, despite their reasonable relation to
Herndon’s offense—after all, Herndon’s crimes were committed on computers
and would have been impossible without internet access. This is because they
are not narrowly tailored. In United States v. Duke, which considered
functionally equivalent conditions, we held that it is “hard to imagine that such
a sweeping, lifetime ban could ever satisfy § 3583(d)’s requirement that a
condition be narrowly tailored to avoid imposing a greater deprivation than
reasonably necessary. Indeed, an unconditional, lifetime ban is the antithesis
of a ‘narrowly tailored’ sanction.” 21 After Duke, it is unlikely any record could
justify Herndon’s absolute, lifetime computer-and-internet bans, much less
this silent record.
      Next, we find that this error affected Herndon’s substantial rights—
without it, he “would not have been subjected to the unwarranted special
condition because no record evidence reveals any justification for the
condition.” 22 As we recognized in Duke, “the ubiquity and importance of the
internet to the modern world makes an unconditional, lifetime ban
unreasonable.” 23




considered all of them and think this would be the best possible deterrent and [will best]
protect the public.’”).
       21 788 F.3d 392, 399 (5th Cir. 2015) (citation omitted).
       22 United States v. Prieto, 801 F.3d 547, 553 (5th Cir. 2015).
       23 Duke, 788 F.3d at 400.

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       This leads us to the fourth prong. 24 The Supreme Court’s recent decision
in Rosales-Mireles v. United States noted that a plain sentencing error is
“precisely the type of error that ordinarily warrants relief[.]” 25 While Rosales-
Mireles involved a prison sentence, not a condition of supervised release, its
reasoning applies here because “[w]e have recognized that supervised release
terms also constitute a substantial restraint on liberty.” 26 As we have
understood it, Rosales-Mireles explained that “[i]n the ordinary case,
additional factors favoring error correction are that (1) re-sentencing is
‘relative[ly] eas[y],’ and (2) ‘Guidelines miscalculations ultimately result from
judicial error’ rather than a defendant’s strategy.” 27 These factors also favor
error correction in this case, as re-sentencing will impose no great burden, and
the failure to support these special conditions with reasons are judicial errors,
not defense strategy.
       While a defendant bears the burden of persuasion at prong four, Rosales-
Mireles instructed that “[i]n the ordinary case, proof of a plain Guidelines error
that affects the defendant’s substantial rights is sufficient to meet that
burden.” 28 Further, we find no countervailing factors that would counsel



       24 Since Duke, we have twice reversed computer bans on plain-error review. Scott, 821
F.3d at 572 (relying on Duke in vacating, on plain error review, lifetime bans on computer
and internet access); United States v. Guillotte, 641 F. App’x 364 (5th Cir. 2016) (unpublished)
(same). In neither case, however, did we have occasion to analyze the fourth prong. The
Government conceded in both cases that the plain error warranted reversal, and in Scott we
“express[ed] no opinion on whether we would correct these errors if the Department of Justice
had not taken the position that the fourth prong is met.” 821 F.3d at 572; see also Guillotte,
641 F. App’x at 367 (“Under these circumstances, and considering the agreement of the
parties that remand is appropriate, we exercise our discretion to notice the error, vacate this
condition, and remand for resentencing as to the supervised release conditions.”). In this case,
the Government opposes correction of this error.
       25 Rosales-Mireles, 138 S. Ct. at 1907.
       26 United States v. Campos, 922 F.3d 686, 689 (5th Cir. 2019) (quoting United States

v. Putnam, 806 F.3d 853, 856 (5th Cir. 2015)).
       27 United States v. Perez-Mateo, 926 F.3d 216, 218 (5th Cir. 2019) (quoting Rosales-

Mireles, 138 S. Ct. at 1908).
       28 138 S. Ct. at 1908 n.4.

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against correcting this error. The record reveals no attempt to justify these
computer-and-internet conditions. Because the district court did not give
reasons for these conditions and because we cannot infer their justification—
given the lack of tailoring, which contravenes Duke—we will exercise our
discretion to vacate these conditions.
                                         B.
      Finally, we briefly turn to the bans on associating with minors without
probation-officer approval and on frequenting places minors are likely to be.
These associational conditions share the root defect of the internet conditions—
a lack of supportive reasoning. We are mindful, however, that our vacatur of
the internet conditions will return this case to the district court no matter how
we resolve the associational conditions.
      We need not decide, then, whether the failure to give reasons for the
associational conditions is reversible error. Rather, we opt to vacate all special
conditions of Herndon’s supervised release. This affords the district court
discretion to impose, after due factfinding, the package of conditions it sees fit.
In doing so, we leave unresolved whether the reasonable relation of the
associational conditions to the specific behavior of Herndon can be inferred
from the record. We also leave unresolved whether the conditions are narrowly
tailored. Vacating all conditions will add little additional burden and may aid
the court on remand, as the challenged conditions share a common bug—a lack
of judicial factfinding—that can be rectified simultaneously.
                                         IV.
      We vacate all special conditions of supervised release and remand for
re-sentencing consistent with this opinion.




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