     Case: 12-60659      Document: 00512470474         Page: 1    Date Filed: 12/13/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 12-60659
                                                                         United States Court of Appeals

                                  Summary Calendar
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        December 13, 2013
UNITED STATES OF AMERICA,                                                  Lyle W. Cayce
                                                                                Clerk

                                                 Plaintiff-Appellee

v.

DARRYL WAYNE BYRD,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 1:11-CR-58-1


Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM: *
       Darryl Wayne Byrd pleaded guilty to failure to register as a sex offender,
in violation of the Sex Offender Registration and Notification Act. The district
court sentenced Byrd to 21 months in prison to be followed by five years of
supervised release. In addition to the standard conditions of supervision, the
district court imposed special conditions of supervision, and Byrd now appeals



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 12-60659

the imposition of those special conditions applicable to sex offenders.
Specifically, Byrd challenges the conditions requiring that he (1) participate in
a specially designed sex offender treatment program, which may include the
administration of polygraph examinations; (2) consent to the administration of
yearly polygraph examinations; (3) have no unauthorized or unsupervised
direct or indirect contact with any children under the age of 18; (4) have no
affiliation or employment with any organization involved in an activity that
would place him in direct contact with minors; (5) not engage in a relationship
with an individual who has children under the age of 18, unless he receives
approval from his probation officer; and (6) not go to places known to be
frequented by minors, including but not limited to any recreational, leisure,
sporting or other activity where children are present and/or supervision is
deemed inadequate without prior approval of the probation officer.
      Byrd argues that the district court committed procedural error in
imposing these special conditions of supervised release because under the plain
language of U.S.S.G. § 5D1.3(d)(7), which lists the recommended special
conditions of supervised release applicable to sex offenders, his failure to
register as a sex offender did not meet the definition of a “sex offense” as
defined in § 5D1.2, comment. (n.1). He further contends (1) that the special
conditions are not expressly listed in § 5D1.3(d)(7) and are, thus, outside the
scope of the Guidelines, and (2) that the district court did not articulate reasons
for imposing the special conditions of supervision. In addition, Byrd challenges
the substantive reasonableness of the special conditions, asserting that the
conditions were not reasonably related to the 18 U.S.C. § 3553(a) sentencing
factors; that the imposition of the conditions imposed a greater deprivation of
liberty than justified; and that the special conditions are not consistent with
the Sentencing Commission’s policy statements.



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                                   No. 12-60659

        Because Byrd did not object to the procedural reasonableness of the
special conditions of supervision in the district court, we review for plain error
only.    See United States v. Juarez, 626 F.3d 246, 253-54 (5th Cir. 2010).
Contrary to Byrd’s assertion, the record reflects that the district court noted
that it had considered the § 3553(a) factors, as well as the advisory guidelines
range, and had expressed concerns over Byrd’s criminal history, including his
failure to register as a sex offender. Therefore, the district court provided
adequate reasons for the imposition of the sentence and did not plainly err in
this regard. See Rita v. United States, 551 U.S. 338, 356 (2007).
        Even if we assume that the district court believed that failure to register
as a sex offender qualified as a sex offense under the Guidelines, we conclude
that the district court’s decision is not plain error. See § 5D1.2, comment. (n.1).
Byrd’s argument that the district court was prohibited from imposing certain
special conditions of supervised release because they are not specifically set
forth in the Guidelines fails. See United States v. Weatherton, 567 F.3d 149,
153 (5th Cir. 2009).
        In the district court, Byrd specifically challenged the special condition
prohibiting him from all direct or indirect contact with children. Accordingly,
we review his challenge to the substantive reasonableness of that condition for
abuse of discretion. See United States v. Rodriguez, 558 F.3d 408, 412 (5th Cir.
2009).    We review his challenge to the substantive reasonableness of the
remaining special conditions for plain error only. See Juarez, 626 F.3d at 253-
54.
        The condition, as currently phrased, prohibiting all direct or indirect
contact with children is substantively unreasonable and is therefore vacated.
See United States v. Windless, 719 F.3d 415, 421-22 (5th Cir. 2013). The case




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                                No. 12-60659

is therefore remanded for the district court to consider whether to impose a
condition that would satisfy Windless. See id.
      The special conditions requiring sex offender treatment, requiring
consent to the administration of polygraph examinations, restricting
employment around children, restricting travel to places frequented by
children, and prohibiting Byrd from entering into a relationship with anyone
with minor children without approval from the probation officer are reasonably
related to relevant factors, involve no greater deprivation of liberty than
necessary, and are consistent with the policy statements of the Guidelines. See
Weatherton, 567 F.3d at 153.
      AFFIRMED IN PART; VACATED IN PART AND REMANDED.




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