     Case: 13-51060   Document: 00512931301    Page: 1   Date Filed: 02/09/2015




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                No. 13-51060                     United States Court of Appeals
                                                                          Fifth Circuit

                                                                        FILED
UNITED STATES OF AMERICA                                         February 9, 2015
                                                                   Lyle W. Cayce
                                          Plaintiff - Appellee          Clerk
v.

MICHAEL RAYMOND FIELDS, also known as Daniel Thomas Tierrey, also
known as Dani Tierney, also known as Dani Tierrey,

                                          Defendant - Appellant




                Appeal from the United States District Court
                     for the Western District of Texas


Before HIGGINBOTHAM, SMITH, and GRAVES, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
      In this case, we must decide whether the district court’s imposition of a
condition of supervised release prohibiting the defendant from “residing or
going to places where a minor or minors are known to frequent without prior
approval of the probation officer” was plainly erroneous. We conclude it was
not and AFFIRM.
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                                                  I.
       In January 1990, Michael Fields was convicted in Wisconsin state court
of second degree sexual assault of a child. 1 He was sentenced to five years in
prison, but only served one year; the rest of his term was probated. Fields was
required to register as a sex offender in Wisconsin for the rest of his life.
Because of this conviction, he must also register as a sex offender in Texas.
Fields has thrice been arrested and convicted for failing to register as a sex
offender. 2   He has also been repeatedly told by state authorities in both
Wisconsin and Texas that he must register as a sex offender, instructions with
which it appears he has never complied. 3
       Fields was arrested by the Austin Police Department for failing to
register as a sex offender in April 2013. The next month, he was indicted in
federal court and charged with one count of failing to register as a sex offender




       1  According to the pre-sentence report: “on or about September 2, 1989, Fields had
sexual contact with S.H., a twelve year old child by sliding his hand under the victim’s
clothing and fondling her breasts. The records also reflect that Fields fondled the victim’s
vagina, over her clothing. When confronted by law enforcement, the defendant stated that
he had ‘a lot to drink’ that evening and did not remember touching the victim but the victim
was a ‘good kid’ and was ‘probably telling the truth.’”
        2 In September 2000, Fields was arrested in Colorado Springs, Colorado, for failing to

register as a sex offender. He pled guilty the next year, and was sentenced to 270 days in
jail. In 2009, Fields was arrested in Austin, Texas, and charged with failing to register as a
sex offender. He pled guilty, and was extradited to Wisconsin based on a probation/parole
violation warrant. Finally, April 2013, Fields was again arrested by the Austin Police
Department for failing to register as a sex offender, which formed the basis of the federal
conviction now at issue.
        3 In the period between when Fields was released from jail in Wisconsin in June 2010,

and when he was arrested in Texas in April 2013, Fields was repeatedly warned about the
need to register as a sex offender. In May 2010, before he was released from Wisconsin jail,
Fields was told of the need to register as a sex offender. In July 2011, after Fields had moved
to Texas, employees of the sheriff’s office gave him a Texas State Offender Registration
Program Pre-Release Notification Form, which stated that he was required to register as a
sex offender. He signed and acknowledged this form, but did not register. Finally, in May
2012, Fields was arrested by the Austin Police Department for camping in public. He was
again given a sex offender notification form, which he did not complete.
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                                     No. 13-51060
in violation of the Sex Offender Registration and Notification Act (“SORNA”). 4
After unsuccessfully moving to dismiss the indictment on the grounds that
SORNA was unconstitutional, Fields pled guilty in July 2013.
      In November 2013, Fields appeared before the district court for his
sentencing hearing. At that hearing, the court reviewed Fields’s criminal
history record, and concluded that, even discounting several convictions where
it was disputed as to whether Fields committed the crime, he had “a solid
criminal record since 1974.”         After hearing from counsel, the court then
sentenced Fields to a 27-month sentence of imprisonment, followed by ten
years of supervised release. The supervision included a number of conditions,
including, as relevant here, a requirement that:
      The defendant shall follow all other lifestyle restrictions or
      treatment requirements imposed by the therapist, and continue
      those restrictions as they pertain to avoiding risk situations
      throughout the course of supervision. This includes not residing
      or going to places where a minor or minors are known to frequent
      without prior approval of the probation officer.
Fields did not object to this condition. This timely appeal follows.
                                        II.
      We normally review conditions of supervised release for abuse of
discretion. 5 In this case, because Fields did not object to his supervised release
condition while before the district court, we review for plain error. 6 As the
Supreme Court has made clear, plain error is a demanding standard:
      First, there must be an error or defect – some sort of deviation from
      a legal rule – that has not been intentionally relinquished or
      abandoned, i.e., affirmatively waived, by the appellant. Second,
      the legal error must be clear or obvious, rather than subject to
      reasonable dispute. Third, the error must have affected the
      appellant’s substantial rights, which in the ordinary case means

      4 42 U.S.C. § 16901 et seq.
      5 United States v. Rodriguez, 558 F.3d 408, 412 (5th Cir. 2009).
      6 United States v. Weatherton, 567 F.3d 149, 152 (5th Cir. 2009).

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                                        No. 13-51060
       he must demonstrate that it affected the outcome of the district
       court proceedings. Fourth and finally, if the above three prongs
       are satisfied, the court of appeals has the discretion to remedy the
       error – discretion which ought to be exercised only if the error
       seriously affects the fairness, integrity or public reputation of
       judicial proceedings. Meeting all four prongs is difficult, as it
       should be. 7

In considering whether an error is “clear or obvious” we look to the “state of
the law at the time of appeal,” 8 and we must decide whether controlling circuit
or Supreme Court precedent has reached the issue in question, or whether the
legal question would be subject to “reasonable dispute.” 9
                                               a.
       In imposing special conditions of supervised release, the district court
has “extensive,” but not unbridled, discretion. 10 That discretion is bound in
two ways. First, the condition 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 deterrence of criminal
       conduct, (3) the protection of the public from further crimes of the
       defendant, and (4) the provision of needed educational or
       vocational training, medical care, or other correctional treatment
       to the defendant. 11




       7   Puckett v. United States, 556 U.S. 129, 135 (2009) (internal quotation marks,
brackets, and citations omitted).
        8 United States v. Segura, 747 F.3d 323, 330 (5th Cir. 2014).
        9 Id. (citing United States v. Rodriguez-Parra, 581 F.3d 227, 231 (5th Cir. 2009)).
        10 United States v. Ellis, 720 F.3d 220, 225 (5th Cir. 2013).
        11 Weatherton, 567 F.3d at 153 (citing 18 U.S.C. §§ 3583(d)(1), 3553(a)(1), (a)(2)(B),

(a)(2)(C), (a)(2)(D)); see also id. at 153 n.1 (special condition need only be reasonably related
to one of the four statutory factors, not all four).
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                                      No. 13-51060
Second, “the condition cannot impose any greater deprivation of liberty than is
reasonably necessary” to accomplish the purposes set out in 18 U.S.C. §
3553(a). 12 Fields challenges his special condition on both grounds.
       Set against these permissive standards, it is not obvious to us that the
district court’s decision to impose a condition restricting Fields’s ability to
“resid[e] or go[] to places where a minor or minors are known to frequent
without prior approval of the probation officer” was error. And even if there
were error, we could not hold that the error was plain.
                                                 1.
       The first statutory condition is “the nature and characteristics of the
offense and the history and characteristics of the defendant.” 13 Two points of
history are relevant: Fields’s underlying sexual assault conviction in 1990 and
his repeated convictions for failing to register as a sex offender.
       Turning first to the original sexual assault conviction, we have held that
“[b]ecause district courts must consider the defendant’s history and
characteristics, they may take into account ‘a defendant’s prior conviction for
a sex offense when imposing sex-offender-related special conditions when the
underlying conviction is for a non-sexual offense.’” 14 Our court, along with our
sister circuits, has under such circumstances repeatedly affirmed special
conditions that require sex offender treatment or, as here, limit where the
defendant may go. We have done so even when, as here, the underlying sexual



       12  Id. (citing 18 U.S.C. § 3583(d)(2)) (internal quotation mark omitted). Section
3553(a) sets out the general factors to be considered when a court imposes a sentence. 18
U.S.C. § 3553(a). The special conditions must also be “consistent with any pertinent policy
statements issued by the Sentencing Commission.” 18 U.S.C. § 3583(d)(3). None of the
Sentencing Commission’s policy statements on conditions of supervised release directly
implicate this case. See U.S.S.G. § 5D1.3(c)-(e).
       13 18 U.S.C. § 3553(a)(1).
       14 Weatherton, 567 F.3d at 153 (quoting United States v. Deleon, 280 F. App’x 348, 351

(5th Cir. 2008) (unpublished)).
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                                        No. 13-51060
offense occurred many years before, and the conviction leading to the
imposition of the special condition was non-sexual in nature. 15 In doing so, we
do not require a perfect fit between past offense and current condition. Even
so, the government must demonstrate some connection between criminal
history and special condition. For example, in United States v. Salazar, 16 the
district court imposed a special condition prohibiting the defendant from
“purchasing, possessing, or using any sexually stimulating or sexually
orienting materials,” after he was convicted of failing to register as a sex
offender. 17 We held that this special condition was not reasonably related to
the circumstances of the offense or the history and characteristics of the
defendant because there was no evidence of “predatory sexual behavior beyond
his singular and now-remote sexual offense” or that “sexually stimulating
materials fueled his past crimes.” 18
       Fields’s criminal history, as with that of the defendant in Salazar,
involves a single, remote sexual offense. His prior conviction for sexual assault
of a child, however, does bear some relationship to the special condition
limiting access to places frequented by children – unlike Salazar, where there
was no evidence that pornography had anything to do with the underlying sex




       15  See, e.g., United States v. Cuneo, 554 F. App’x 313, 318 (5th Cir. 2014) (unpublished)
(affirming the special condition requirement of sex offender treatment despite the fact that
the defendant’s “last sexual assault conviction was twenty-three years ago”); United States
v. Byrd, 551 F. App’x 726, 727 (5th Cir. 2013) (unpublished) (concluding, under plain error
review, that a condition “restricting travel to places frequented by children” was reasonably
related to the relevant statutory factors when defendant was convicted of failing to register
as a sex offender); United States v. Dupes, 513 F.3d 338, 344 (2d Cir. 2008) (“district court
had authority to require a defendant, following his conviction for bank larceny, to undergo
sex offender treatment and to stay away from places where children typically congregate,
based on the defendant’s prior conviction for sexually abusing a child.”) (citing United States
v. Peterson, 248 F.3d 79, 84-86 (2d Cir. 2001)).
        16 743 F.3d 445 (5th Cir. 2014).
        17 Id. at 447-48.
        18 Id. at 452.

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                                       No. 13-51060
crime, here, access to children was a necessary predicate to Fields’s original
sexual assault offense.
       Moreover, in evaluating the defendant’s history, we have held that the
defendant’s “refusal to register, despite multiple warnings from [state]
officials, culminating in his guilty plea to the crime [of refusal to register],
evidences a refusal to abide by the restrictions placed on sex offenders thereby
undermining efforts to combat sex-offender recidivism.” 19 Pursuant to this
holding, were we unable to sustain Fields’s condition under the first statutory
consideration, we could do so under the second or third provision. Specifically,
Fields’s restrictions can be justified either because                      his history of
noncompliance with punitive restrictions requires a harsher response, the
second statutory consideration, or because the defendant, who has shown an
unwillingness to comply with a provision designed to protect the general
populace, poses a greater risk to the public, the third statutory consideration. 20
Putting these two factors together – a history of sexual assault of children
along with a failure to respond to the “first order” remedy of registration – the
district court could reasonably have concluded that stronger remedial
measures were necessary.
       Even were we to find otherwise, and hold that the district court was in
error, we cannot conclude such error would be “clear or obvious.” 21 Courts
within our circuit have affirmed similar (or identical) conditions in similar


       19  See Cuneo, 554 F. App’x at 318; see also United States v. Morales-Cruz, 712 F.3d 71,
75 (1st Cir. 2013) (“Given Morales-Cruz’s manifest lack of respect for the SORNA registration
requirements, and the reasonable inference that his refusal to comply with these
requirements poses a risk of recidivism, the district court’s imposition of sex-offender
treatment was reasonably related to Morales-Cruz’s present offense as well as to his criminal
history . . . .”).
        20 See Cuneo, 554 F. App’x at 318 (“Cuneo’s extensive criminal history (including two

convictions for violence against his ex-wife) and his repeated refusal to register permit a
rational inference that Cuneo presents a recidivism risk . . . .”).
        21 United States v. Nava, 762 F.3d 451, 452 (5th Cir. 2014).

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contexts. 22 Nor has Fields been able to identify an on-point circuit case clearly
demonstrating that the district court’s condition was not reasonably related to
the statutory factors – and we have held that if the law is unsettled within the
circuit, any error cannot be plain. 23
                                                   2.
       The second issue is whether the condition is a greater deprivation of
Fields’s liberty than reasonably necessary to accomplish the goals of the
statutory scheme. We begin our analysis with United States v. Windless. 24
There, our court faced a similar question. The defendant had been convicted
nearly two decades before the appeal of sexually assaulting a child and was
required to register as a sexual offender. 25 He had been repeatedly charged
with failing to register as a predatory offender, though he was never found
guilty of any additional sexual assaults, and was convicted in federal court of
failing to register as a sex offender. 26 The district court imposed a special
condition requiring that “[t]he defendant shall have no direct or indirect
contact with any children under the age of 18, unless accompanied and
supervised by an adult, who has been approved in advance by the probation
officer.” 27


       22  See, e.g., United States v. Byrd, 551 F. App’x 726, 727 (5th Cir. 2013) (unpublished)
(concluding that a restriction, imposed after a conviction for failure to register as a sex
offender, on “travel to places frequented by children” was “reasonably related to relevant
factors,” as determined on plain error review); United States v. Kroft, 535 F. App’x 422, 422-
23 (5th Cir. 2013) (unpublished) (same); see also United States v. Bishop, 603 F.3d 279, 281
(5th Cir. 2010) (finding as relevant to plain error review the fact that “in a series of recent
unpublished opinions, this circuit has consistently held that such [purported errors] do not
rise to the level of plain error.”).
        23 See United States v. Vega, 332 F.3d 849, 852 n.3 (5th Cir. 2003) (“We conclude that

any error by the district court in this regard was not plain or obvious, as we have not
previously addressed this issue.”).
        24 719 F.3d 415 (5th Cir. 2013).
        25 Id. at 418.
        26 Id.
        27 Id. at 419.

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                                       No. 13-51060
       Reviewing for abuse of discretion, we reversed. We concluded that “to
forbid all ‘indirect’ contact [with children] works a serious restriction on liberty,
making a trip to the grocery store or a place of worship a trip that may end in
imprisonment via revocation sentence.” 28 While a defendant’s conduct might
warrant such a condition under certain circumstances, we held that:
       A restriction of this breadth works a “greater deprivation of liberty
       than is reasonably necessary” where, as here, a defendant is being
       sentenced for failing to register as a sex offender; the offense that
       required him to register is not of recent origin; and since that
       offense, he has committed no other crimes against minors, and the
       evidence suggests that he has failed to register only twice before. 29
In short, a condition that would severely limit where a defendant could go in
public, based mainly on a history of violating registration requirements, was
unwarranted. 30
       The appropriateness of the supervised release condition is a function of
the severity of the offense history and the impact of the restriction. Fields and
Windless have similar criminal histories, and of the four criteria highlighted
by the Windless court, the first three are identical. Both were sentenced for
failing to register as a sex offender, the event that precipitated the registration
requirement is not recent, and there is no evidence of any subsequent crimes
against children. 31      The fourth factor, previous failures to register, cuts



       28  Id. at 422.
       29  Id. (quoting United States v. Weatherton, 567 F.3d 149, 153 (5th Cir. 2009)). In
dicta, we also “note[d] that here, the defendant committed the underlying sex offense when
he was only fifteen years old, and that this condition would prevent him from ever seeing his
minor children without the supervision of someone approved by a probation officer.” Id.
        30 In our earlier decision in United States v. Paul, 274 F.3d 155 (5th Cir. 2001), we

addressed a similar condition prohibiting “indirect contact with minors” in the context of a
vagueness and overbreadth challenge. We read the condition narrowly to exclude chance or
incidental contact with children. Id. at 166. Despite addressing different types of challenges,
both Paul and Windless share a similar concern with a condition of supervised release
dramatically limiting a defendant’s ability to travel.
        31 See Windless, 719 F.3d at 422.

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                                     No. 13-51060
differently. The Windless court concluded that Windless had “failed to register
only twice before.” 32 While Fields was only convicted two other times of failing
to register, the PSR reports at least two other instances where he was told by
Texas or Wisconsin state authorities that he needed to register and where he
failed to do so, a conclusion he does not challenge. Even still, the criminal
histories are close enough that if Fields’s condition has a similar impact to that
which the court perceived in Windless, under our precedent it ought fall.
      We conclude that Fields’s restriction is not comparably severe. The
condition at issue prohibits Fields from “going to places where a minor or
minors are known to frequent without prior approval of the probation officer.”
The word “frequent” serves as an important modifier – it limits the zone of
forbidden locations to those that children “visit often” or “associate with, be in,
or resort to often or habitually.” 33 By our read, this would include places like
schools and playgrounds, but would not include locations such as grocery
stores, places of worship, transportation hubs, and most stores. Children, to
be sure, can and do attend such places – but they do not “frequent” them. In
this respect, the restraint on Fields’s liberty, while by no means trivial, is not
as extensive as the restraint in Windless.
      Furthermore, Fields has the benefit of ex ante knowledge about which
places are safe for him to go, as “places where minors are known to frequent”
is an objective standard that can be determined in advance, especially through
consultation with his probation officer.         Finally, we note that Fields can seek
permission from his probation officer to go to places that children frequent. “If
such permission is unfairly denied, the district court can modify this term.” 34
We have recognized before, and reaffirm now, that a modifiable condition such


      32 Id.
      33 Webster’s New Int’l Dictionary 909 (3d ed. 1981).
      34 United States v. Christian, 344 F. App’x 53, 56 (5th Cir. 2009) (unpublished).

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as this one works a less significant deprivation of liberty than one which cannot
be altered. 35
        In any event, even were we to find that the condition was error, that
error was not clear or obvious. The defendant cannot point to any case law
concluding that the imposition of the type of restriction at issue here was error.
Our court has, however, thrice ruled in unpublished decisions that the
condition at issue here was not plainly erroneous. 36 While a decision ruling
that an error is not plain does not necessarily mean that it was not clear or
obvious, given the additional criteria which must be found before a court may
find plain error, we have looked to rulings rejecting plain error in analogous
situations to decide whether plain error exists in the instant case. 37 We do so
here, and reach the same conclusion.
                                                 b.
        We need go no further. Without demonstrating error, much less clear or
obvious error, Fields cannot satisfy the criteria necessary for our court to grant
relief. 38
                                                 III.
        Fields also argues that SORNA’s registration requirement is an
unconstitutional extension of Congress’s Commerce Clause power as
interpreted by National Federation of Independent Business v. Sebelius. 39
Fields acknowledges that this argument is foreclosed and it is.




        35See id.
        36 See United States v. Byrd, 551 F. App’x 726, 727 (5th Cir. 2013) (unpublished);
United States v. Nelson, 544 F. App’x 503, 504 (5th Cir. 2013) (unpublished); United States
v. Kroft, 535 F. App’x 422, 422-23 (5th Cir. 2013) (unpublished).
       37 See United States v. Bishop, 603 F.3d 279, 281 (5th Cir. 2010).
       38 We do not reach the issue of whether Fields’s substantial rights were affected.

Puckett v. United States, 556 U.S. 129, 135 (2009).
       39 132 S. Ct. 2566 (2012).

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                                    No. 13-51060
      In United States v. Whaley, our court held that SORNA was
constitutional under the Commerce Clause. 40 While Whaley predates National
Federation, as we held in United States v. Stager, which addressed the same
legal question, this is of no moment:
      Under our rule of orderliness, one panel may not overrule the
      decision of a prior panel absent an intervening change in the law,
      such as by a superseding Supreme Court case. “Such an
      intervening change in the law must be unequivocal, not a mere
      hint of how the Court might rule in the future.” Because [National
      Federation] did not explicitly or implicitly overrule Whaley, we are
      bound by that decision. 41
                                               IV.
      We AFFIRM the judgment of the district court.




      40 577 F.3d 254, 258-61 (2009).
      41  552 F. App’x 377, 378 (5th Cir. 2014) (unpublished) (quoting United States v.
Alcantar, 733 F.3d 143, 146 (5th Cir. 2013) (internal citation omitted)).
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