             Case: 16-16477     Date Filed: 07/13/2017   Page: 1 of 9


                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 16-16477
                            Non-Argument Calendar
                          ________________________

                  D.C. Docket No. 3:06-cr-00183-HES-MCR-1

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

CHRISTOPHER R. ELY,

                                                             Defendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                         ________________________

                                  (July 13, 2017)

Before TJOFLAT, MARCUS and WILLIAM PRYOR, Circuit Judges.

PER CURIAM:

      After pleading guilty to a single count of possession of child pornography, in

violation of 18 U.S.C. §§ 2252A(a)(5)(B), (b)(2), and 2, and serving a term of

imprisonment, Christopher Ely’s supervised release was revoked. Ely now appeals
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the re-imposition of a special, “no-contact” condition of supervised release

prohibiting him from contacting minors, including his daughter, absent his

probation officer’s approval. On appeal, Ely argues that the district court abused

its discretion in: (1) re-imposing a condition inconsistent with the Sentencing

Commission’s policy statement regarding sex offenses without an “individualized

inquiry” or “particularized showing” of need; and (2) requiring the probation

officer to approve his communications with his daughter because that is an

improper delegation of a judicial function. After careful review, we affirm.

      We review the district court’s imposition of a special condition of supervised

release for abuse of discretion. United States v. Moran, 573 F.3d 1132, 1137 (11th

Cir. 2009). We will not reverse unless we have a definite and firm conviction that

the district court committed a clear error of judgment in the conclusion it reached.

Id. However, objections not raised in the district court are reviewed for plain error.

Id. For a defendant to preserve an objection for appeal, he must “raise that point in

such clear and simple language that the trial court may not misunderstand it.”

United States v. Massey, 443 F.3d 814, 819 (11th Cir. 2006) (quotation omitted).

When the statement is not clear enough to inform the district court of the legal

basis for the objection, the objection is not properly preserved. Id. To establish

plain error, the defendant must show (1) an error, (2) that is plain, and (3) that

affected his substantial rights. United States v. Turner, 474 F.3d 1265, 1276 (11th


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Cir. 2007). If the defendant satisfies these conditions, we may exercise our

discretion to recognize the error only if it seriously affects the fairness, integrity, or

public reputation of judicial proceedings. Id. If the explicit language of a statute

or rule does not specifically resolve an issue, and no precedent from the Supreme

Court or this Court directly resolves it, there can be no plain error. United States v.

Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003).

      A district court may order any special conditions of supervised release it

deems appropriate so long as each condition: (1) is reasonably related to the nature

and circumstances of the offense, the defendant’s history and characteristics, the

deterrence of criminal conduct, the protection of the public from future crimes of

the defendant, and the defendant’s educational, vocational, medical, or correctional

treatment needs; (2) involves no greater deprivation of liberty than reasonably

necessary to protect the public, deter criminal conduct, or provide the defendant

with needed educational, vocational, medical, or correctional treatment; and (3) is

consistent with the policy statements of the United States Sentencing Commission.

18 U.S.C. § 3583(d) (citing 18 U.S.C. § 3553(a)(1), (2)(B)-(C)); see also U.S.S.G.

§ 5D1.3(b). Each factor is an independent consideration to be weighed, and a

special condition need not be supported by each factor. United States v. Tome,

611 F.3d 1371, 1376 (11th Cir. 2010).              The Guidelines policy statement

“recommend[s]” three special conditions for sex offenses: (1) participation in a


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program for the treatment and monitoring of sex offenders; (2) restrictions on

computer usage, in cases involving computers; and (3) “[a] condition requiring the

defendant to submit to a search, at any time, with or without a warrant . . . of the

defendant’s person and any property . . . upon reasonable suspicion concerning a

violation of a condition of supervised release.” U.S.S.G. § 5D1.3(d)(7).

      While a condition of supervised release should not unduly restrict a

defendant’s liberty, a condition is not invalid simply because it affects a

probationer’s ability to exercise constitutionally protected rights. Tome, 611 F.3d

at 1376. Indeed, in a recent case, the Supreme Court has “assumed that the First

Amendment permits a State to enact specific, narrowly tailored laws that prohibit a

sex offender from engaging in conduct that often presages a sexual crime, like

contacting a minor or using a website to gather information about a minor.”

Packingham v. North Carolina, No. 15-1194, 2017 WL 2621313, at *6 (U.S. June

19, 2017) (emphasis added). The Eighth Circuit has held, however, that specific

conditions requiring defendants to get permission from probation officers before

contacting their own children must be supported by an “individualized inquiry”

and “particularized showing” of need. United States v. Hobbs, 710 F.3d 850, 854

(8th Cir. 2013).

      Because Ely did not squarely argue to the district court that the “no-contact”

supervised-release condition -- prohibiting his contact with minors, including his


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daughter, absent his probation officer’s approval -- required an “individualized

inquiry” or a “particularized showing” of need, we review this issue for plain error.

See Moran, 573 F.3d at 1137. However, no binding authority from this Court, the

Supreme Court, or any rule or statute requires the district court to conduct this kind

of analysis. As a result, the district court did not plainly err by re-imposing the no-

contact condition. See Lejarde-Rada, 319 F.3d at 1291. Ely also argues -- again,

for the first time on appeal -- that the condition is inconsistent with the Sentencing

Commission’s policy statement for sex offenses. But nothing there or otherwise

prevents the district court from imposing an additional condition beyond those

recommended in the policy statement, nor does the no-contact condition inherently

conflict with conditions recommended in the policy statement. See U.S.S.G. §

5D1.3(d)(7). In short, he has shown no error, much less plain error, for this claim.

      To the extent Ely raises on appeal the objection he actually made to the

district court -- generally, that the district court abused its discretion by re-

imposing the no-contact condition without carving out an exception so that he

could speak with his daughter -- we are unpersuaded. For starters, the condition is

reasonably related to the nature and circumstances of Ely’s underlying offense --

possession of child pornography -- and to Ely’s history and characteristics. See 18

U.S.C. § 3583(d)(1). As the record reveals, Ely was previously convicted of the

possession of child pornography, as well as attempted child enticement, and the


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criminal conduct at issue in this case arose while Ely was on supervised release for

those prior offenses. Thus, his status as a two-time sex offender who has violated

supervised release before establishes a reasonable relationship between the

condition and Ely’s history and characteristics. Moreover, the condition does not

involve a “greater deprivation of liberty” than reasonably necessary to afford

adequate deterrence, protect the public, or provide Ely with treatment. Rather, the

condition allows Ely to contact his daughter so long as he seeks and obtains written

permission from the probation officer and complies with the other conditions of his

supervision, none of which are challenged on appeal. Finally, as we’ve noted, the

no-contact condition is not inconsistent with any conditions recommended in the

Sentencing Commission policy statement regarding sex offenses. See U.S.S.G. §

5D1.3(d)(7); see also Moran, 573 F.3d at 1140 (upholding no-contact condition in

addition to recommended search condition). On this record, the district court did

not abuse its discretion by imposing the no-contact condition in this case.

      Next, we find no merit to Ely’s argument that requiring the probation officer

to approve his communications with his daughter amounts to an improper

delegation of a judicial function. We recognize that a district court may not

delegate a judicial function to a probation officer because such a delegation

violates Article III of the United States Constitution. United States v. Bernardine,

237 F.3d 1279, 1283 (11th Cir. 2001). Nevertheless, for purposes of efficiency,


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district courts rely extensively on probation officers to support judicial functions.

Id. To determine if a district court has improperly delegated its judicial authority,

we draw a distinction between the delegation to a probation officer of a ministerial

act or support service and the ultimate responsibility of imposing the sentence.

United States v. Nash, 438 F.3d 1302, 1304-05 (11th Cir. 2006).

      We’ve upheld conditions of supervised release that impose a requirement on

a defendant, but subject the defendant to approval or direction of a probation

officer. See, e.g., id. at 1306 (upholding conditions requiring defendant to obtain

probation officer’s approval before opening bank account and to notify third

parties of risks occasioned by criminal record or personal history “as directed by

the probation officer”) (quotation omitted); United States v. Zinn, 321 F.3d 1084,

1093 (11th Cir. 2003) (upholding condition requiring defendant to participate in

sex offender treatment program approved by probation officer); United States v.

Taylor, 338 F.3d 1280, 1283-84 (11th Cir. 2003) (upholding condition requiring

defendant “to participate in a mental health program . . . approved by the probation

officer, and abide by the rules, requirements and conditions of the treatment

program”) (quotation omitted). In contrast, we’ve vacated conditions that delegate

to the probation officer the authority to determine whether a defendant will

participate in a treatment program at all. See, e.g., Nash, 438 F.3d at 1305-06

(vacating condition that gave probation officer “ultimate responsibility” over


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whether defendant would participate in mental health treatment) (quotation

omitted); United States v. Heath, 419 F.3d 1312, 1315 (11th Cir. 2005) (same).

      Once again, Ely’s claim is reviewed for plain error. At the final revocation

hearing, Ely took issue with obtaining the probation officer’s permission to

communicate with his daughter and questioned whether he would ultimately be

able to resolve a permission-related dispute with the court. However, he never

argued -- as he now does -- that the district court improperly delegated its judicial

authority to the probation officer by requiring him to approve Ely’s

communications with all minors. Because Ely never clearly articulated this claim

to the district court, we must review for plain error. Massey, 443 F.3d at 819.

      The district court did not plainly err by requiring the probation officer to

approve Ely’s communications with minors. Indeed, there is no binding authority

holding that a condition requiring a probation officer to approve a supervisee’s

communications with a minor is an improper delegation of judicial authority. See

Lejarde-Rada, 319 F.3d at 1291. Nor do we see how the district court’s delegation

could amount to error, much less plain error. When the district court imposed the

no-contact condition, it imposed a directive on Ely not to contact minors, while

delegating supervision of that condition to the probation officer. See Nash, 438

F.3d at 1306. Despite Ely’s complaint at the revocation hearing that he could not

“just call [the judge] on the phone” to seek an exception, we’ve observed that


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district courts must be able to rely on probation officers for administrative support

and oversight. See Bernardine, 237 F.3d at 1283. The district court did not allow

the probation officer to decide whether or not Ely would be subject to a no-contact

condition. Instead, the court made clear that it would retain ultimate responsibility

over Ely’s contact with minors and instructed Ely to petition the court if any

dispute arose with the probation officer’s denial of a properly made request. In

other words, the court gave the probation officer a supervisory, rather than judicial,

function. Accordingly, even if we were to assume that Ely had properly made this

argument in the district court, we cannot say the district court abused its discretion

by improperly delegating its judicial authority.

      AFFIRMED.




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