                                                                      [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS
                                                                               FILED
                            FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                              ________________________ ELEVENTH CIRCUIT
                                                                      SEPTEMBER 24, 2009
                                    No. 08-16093                       THOMAS K. KAHN
                              ________________________                     CLERK


                          D. C. Docket No. 08-14012-CR-DLG

UNITED STATES OF AMERICA,


                                                                         Plaintiff-Appellee,

                                           versus

GARY WILLIAM WEST,

                                                                      Defendant-Appellant.


                              ________________________

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

                                   (September 24, 2009)

Before BARKETT and HULL, Circuit Judges, and QUIST,* District Judge.

PER CURIAM:


       *
        Honorable Gordon J. Quist, United States District Judge for the Western District of
Michigan, sitting by designation.
      Gary William West appeals his 180-month sentence of imprisonment and

life term and conditions of supervised release, imposed following the entry of his

guilty plea for transportation of child pornography in violation of 18 U.S.C. §

2252(a)(1).

      West first argues that the district court erred in sentencing him based on the

enhanced fifteen year statutory mandatory minimum applicable to those defendants

who are convicted under § 2252(a)(1) and also have a prior conviction “under the

laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive

sexual conduct involving a minor or ward.” 18 U.S.C. § 2252(b)(1). Specifically,

he argues that, applying a categorical approach, his prior conviction under Ohio

Rev. Code Ann. § 2907.07(D)(2)1 did not involve an actual minor nor entail sexual

conduct and thus, cannot serve as a predicate offense for a sentencing enhancement

under § 2252(b)(1).

      It is not disputed and our independent review of the record in this case



      1
          The Ohio statue specifically provides:

      No person shall solicit another by means of a telecommunications device, . . . , to
      engage in sexual activity with the offender when the offender is eighteen years of
      age or older and . . . (2) [t]he other person is a law enforcement officer posing as a
      person who is thirteen years of age or older but less than sixteen years of age, the
      offender believes that the other person is thirteen years of age or older but less
      than sixteen years of age or is reckless in that regard, and the offender is four or
      more years older than the age the law enforcement officer assumes in posing as
      the person who is thirteen years of age or older but less than sixteen years of age.

                                                   2
confirms that West did not raise any objection in the district court to the

application of the fifteen year statutory mandatory minimum provided for by §

2252(b)(1). Accordingly, we must apply the plain error standard to our review of

West’s sentencing argument, which he raises for the first time in this appeal.

Under the plain error standard, West must prove that “(1) there is an error; (2) that

is plain or obvious; (3) affecting [his] substantial rights in that it was prejudicial

and not harmless; and (4) that seriously affects the fairness, integrity, or public

reputation of the judicial proceedings.” United States v. Raad, 406 F.3d 1322,

1323 (11th Cir. 2005) (quotations and citations omitted). An error is plain only if

it is “clear under current law.” United States v. Humphrey, 164 F.3d 585, 588

(11th Cir. 1999) (citation omitted).

      Given the lack of precedent addressing whether a conviction under Ohio

statute § 2907.07(D)(2) can be used to enhance a sentence under § 2252(b)(1) and

upon review of § 2252(b)(1) and the Ohio statute, we cannot state that the district

court plainly erred in determining that West’s Ohio conviction could serve to

enhance his mandatory minimum sentence under § 2252(b)(1).

      West also argues that the district court’s imposition of a lifetime term of

supervised release, a lifetime prohibition on his use of a computer other than for

employment purposes, and a lifetime submission to law enforcement searches



                                            3
based on reasonable suspicion is unreasonable and unconstitutional. Again, it is

undisputed and our review of the record confirms that West did not raise any

objections in the district court to any of these conditions. Having considered the

statutes and guidelines applicable to these discretionary conditions of supervised

release, we conclude that the district court did not plainly err in imposing these

conditions.

      Lastly, West requests that we vacate his sentence and remand his case to the

district court for clarification of the third condition of supervised release, which

prohibited his unsupervised contact with minors. He asserts that the condition, as

stated in the judgment, is ambiguous as the caption states “No Unsupervised

Contact,” but the condition itself states that he can have no contact with minors.

Because it appears from the record that the court intended the language in the

judgment to be consistent with the language in Paragraph 86 of the Presentence

Investigation Report (“PSI”), and the failure of the judgment to include the same

language was a mere oversight, we remand this case solely to revise the judgment

so that the text of the “No Unsupervised Contact with Minors” condition can be

corrected so as to be consistent with Paragraph 86 of the PSI.

AFFIRMED in part, and VACATED and REMANDED in part.




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