                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 17-2771
                        ___________________________

                             United States of America

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

                                  Jonathan Sebert

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                     Appeal from United States District Court
                for the Northern District of Iowa - Central Division
                                  ____________

                             Submitted: June 11, 2018
                              Filed: August 13, 2018
                                    [Published]
                                  ____________

Before LOKEN, GRUENDER, and GRASZ, Circuit Judges.
                          ____________

PER CURIAM.

     In August 2017, the district court1 sentenced Jonathan Sebert (“Sebert”) to two
hundred forty months of imprisonment, followed by twenty years of supervised

      1
       The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
release, based on his guilty plea to receipt of child pornography. Sebert argues on
appeal that his sentence is substantively unreasonable and that one of the special
conditions for his supervised release term is unconstitutionally overbroad and vague.

       We review a sentence for substantive reasonableness in relation to the advisory
sentencing range from the U.S. Sentencing Guidelines Manual (the “Guidelines
range”) and the factors from 18 U.S.C. § 3553(a). See United States v. Funke, 846
F.3d 998, 1000 (8th Cir. 2017). “A district court abuses its discretion and imposes
an unreasonable sentence when it fails to consider a relevant and significant factor,
gives significant weight to an irrelevant or improper factor, or considers the
appropriate factors but commits a clear error of judgment in weighing those factors.”
United States v. Miner, 544 F.3d 930, 932 (8th Cir. 2008). We accord a presumption
of reasonableness when the sentence is within the Guidelines range. See Funke, 846
F.3d at 1000.

       At sentencing, the district court carefully considered several factors when
deciding to impose the statutory maximum sentence, as recommended by the
Guidelines.2 For example, the district court placed great emphasis on the fact the plea
deal allowed Sebert to escape a longer sentence for sexually exploiting his
girlfriend’s thirteen year old daughter. The district court also considered Sebert’s
distribution of child pornography. It further observed that Sebert’s lack of violent
criminal history and demonstrated remorse were typical of passive child pornography
offenders and did not support a variance in his sentence in light of the aggravating
factors. While we recognize that Sebert may disagree with the way the district court
weighed the factors, he has not overcome the presumption of reasonableness, nor do




      2
      The prison term was the statutory maximum for a violation of 18 U.S.C.
§ 2252(a)(2), which constrained the otherwise applicable Guidelines range of two
hundred ninety-two months to three hundred sixty-five months.

                                         -2-
we see any basis to conclude the district court abused its discretion. Accordingly, we
hold the sentence is substantively reasonable.

      Sebert’s challenge to a special condition of supervised release is foreclosed by
our precedents. The special condition at issue states that Sebert “must not view,
possess, produce, or use any form of erotica or pornographic materials, and the
defendant must not enter any establishment where pornography or erotica can be
obtained or viewed.”

       Sebert argues the term “erotica” is unconstitutionally vague and overbroad.
We have previously held that a condition with the same key terms, prohibiting a
defendant from “enter[ing] any location where pornography, erotica, or adult
entertainment can be obtained or viewed,” United States v. Mefford, 711 F.3d 923,
928 (8th Cir. 2013) (alteration in original), was not unconstitutionally vague or
overbroad. “We are bound by Mefford and hold that the terms ‘pornography’ and
‘erotica’ are not vague as applied in [this] case.” United States v. Bordman, No. 17-
2395, 2018 WL 3433754, at *10 (8th Cir. July 17, 2018).

      We affirm.



GRASZ, Circuit Judge, concurring.

      I join the Court’s opinion in full. I write separately to observe that this Court’s
opinion in Mefford, which is the controlling precedent as to the special condition
challenge, is suspect because it appears to have been based on the mistaken belief that
the panel was bound by Ristine regarding the validity of the special condition
concerning “erotica.”




                                          -3-
       In Mefford, the Court reviewed a special condition relevantly containing
provisions substantively identical to those challenged here prohibiting the supervised
offender from entering any establishment where “erotica” can be obtained or viewed.
The Court upheld the special condition, noting that its language was “virtually
identical to wording we have previously upheld” in Ristine. Mefford, 711 F.3d at 928
(citing Ristine, 335 F.3d at 694–95). The problem with the Mefford court’s analysis,
and its application to the erotica provisions of the special condition, is twofold.

       First, the defendant in Ristine challenged only the portion of the special
condition pertaining to pornographic materials. 335 F.3d at 694. The opinion clearly
stated that “Ristine does not argue that the restrictions concerning ‘erotica’ are
overbroad or vague.” Id. at 694 n.2. Thus, the Court in Mefford was not bound by
Ristine as to special condition language pertaining to erotica.

       Second, the Court in Ristine was reviewing the special condition under a plain
error standard of review. Id. at 695. The Ristine Court expressly stated that “[w]ere
we reviewing this special condition for an abuse of discretion, we might be forced to
select the line of reasoning we find more compelling, but the standard here is plain
error.” Id. (referencing a circuit split regarding whether certain pornography-related
restrictions were unconstitutionally vague).

      Here, the special condition’s ban on viewing any form of “erotica” or entering
any place where “erotica” can be obtained or viewed would appear to present the
same constitutional and practical concerns as similar special conditions pertaining to
“nudity” that were previously found invalid by this Court. See Mefford, 711 F.3d at
927; United States v. Simons, 614 F.3d 475, 483–85 (8th Cir. 2010) (vacating special
condition encompassing “nudity”). This is because the term “erotica” is so broad it
could, in this context, prohibit entering a big-box store or even visiting an art




                                         -4-
museum.3 This is not trivial, since “[s]upervised release is a ‘form of criminal
sanction.’” United States v. Jackson, 866 F.3d 982, 985 (8th Cir. 2017) (quoting
Griffin v. Wisconsin, 483 U.S. 868, 874 (1987)). Violation of a special condition can
result in imprisonment.

       Notably, the government devotes part of its argument here to what the district
court really meant by the special condition rather than what the text of the condition
says. The government also seems to struggle to present any direct defense of the
challenged terminology, instead resorting to analogies and generalizations. Although
use of the term “erotica” has been repeatedly upheld by this Court (relying on Ristine
and Mefford), never has its definition been so much as discussed. This suggests
clearer language may help all parties. This can be achieved by district courts more
clearly defining what material or activity is prohibited, either by using the
terminology approved by this Court in cases such as United States v. Hobbs, 710 F.3d
850, 855–56 (8th Cir. 2013) or by crafting new language reasonably related to the
§ 3553(a) sentencing factors.4


      3
        Compare Merriam-Webster’s Collegiate Dictionary (10th ed. 2002) (defining
erotica as “literary or artistic works having an erotic theme or quality” and erotic as
“of, devoted to, or tending to arouse sexual love or desire”) with Oxford English
Dictionary (2018), http://www.oed.com (defining erotica as “[m]atters of love; erotic
literature or art (frequently as a heading in catalogues)” and erotic as “[o]f or
pertaining to the passion of love; concerned with or treating of love; amatory”).
      4
       The concerns expressed as to the term “erotica” do not apply to the term
“pornography.” We have repeatedly affirmed special condition restrictions on
pornography because we do not define it as broadly as other circuits. For example,
we have positively cited the Third Circuit’s conclusion that a ban on nudity is
overbroad, but we also distinguished nudity from pornography, rejecting the Third
Circuit’s rationale that a prohibition of pornography is unconstitutional “because it
‘might apply to a wide swath of work ranging from serious art to ubiquitous
advertising’ and ‘to any art form that employs nudity.’” United States v. Simons, 614
F.3d 475, 483 (8th Cir. 2010) (quoting United States v. Loy, 237 F.3d 251, 261–62,

                                         -5-
       While the controlling precedent appears to be on shaky ground, the district
courts need not continue to add additional floors to this unstable foundation. The
point is not to halt construction, but to fashion safeguards for children that are legally
sound. In this regard it should be noted that even the holdings in United States v.
Kelly, 625 F.3d 516, 519–22 (8th Cir. 2010) and Simons, 614 F.3d at 483–85 do not
preclude district judges from imposing properly tailored supervised release conditions
restricting possession of nude visual depictions of children by offenders convicted of
crimes involving child pornography, and especially those who have histories of
sexual abuse of minors. It is only where over broad terms are used without properly
tailoring the condition so that they reasonably relate to the factors set forth in the
United States Code that the validity of the conditions comes into question.

      Special conditions should fulfill statutory supervision goals, including
protecting society and deterring criminal activity against children, without
inadvertently and unnecessarily creating issues for appeal by using vague or overly
broad terms.
                      ______________________________




266–67 (3d Cir. 2001)).

                                           -6-
