     Case: 16-41692      Document: 00514454136         Page: 1    Date Filed: 05/01/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit

                                                                               FILED
                                      No. 16-41692                          May 1, 2018
                                                                          Lyle W. Cayce
UNITED STATES OF AMERICA,                                                      Clerk


              Plaintiff - Appellee

v.

JUAN ANTONIO COMPIAN,

              Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:16-CR-418-1


Before STEWART, Chief Judge, and HAYNES and WILLETT, Circuit Judges.
PER CURIAM:*
       Juan Antonio Compian appeals the district court’s imposition of two sex-
offender-related special conditions of supervised release—a registration
condition and a locational condition. He argues that the district court abused
its discretion in imposing the sex-offender-related special conditions because
they (1) are not reasonably related to the statutory sentencing factors under
18 U.S.C. §§ 3583(d)(1) and 3553(a), and (2) impose a greater deprivation of
liberty than necessary to achieve the statutory sentencing goals.                        In the



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-41692

alternative, Compian argues that the district court judge did not sufficiently
explain her reasons for imposing the special conditions, in violation of
§ 3553(c). Upon review, we remand for the limited purpose of modifying the
registration condition to reflect that Compian must register as a sex offender
to the extent required by state law. We otherwise affirm. The Government’s
motion to supplement the record is denied.
                                  I.     Background
       Compian was charged with two counts of transporting an undocumented
alien within the United States, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii),
(A)(v)(II), and (B)(ii). In December 2016, he pleaded guilty to count two and
was sentenced to twenty-one months in custody, followed by a three-year term
of supervised release.
       The    sentencing     judge     imposed     two    sex-offender-related      special
conditions on Compian: a locational condition and a registration condition. 1
The locational condition restricted Compian’s access to areas “primarily used
by children under the age of 18, or where children may frequently congregate,”
while the registration condition required him to register as a sex offender in
Texas.     Compian’s attorney objected to both conditions on the basis that
Compian’s sex offense “was a twenty-five year old offense unrelated to the case
at hand.” The district court declined to remove the sex-offender-related special
conditions and entered a written judgment.




       1 In 1991, while in his early twenties, Compian pleaded no contest to a Florida charge
of lewd and lascivious conduct or indecent assault upon or in the presence of a child. He was
sentenced to three and a half years in custody and ten years’ probation, which was fully
completed on October 29, 2002. Although he committed additional crimes prior to his
conviction here, none were sex crimes.
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    II.   Imposition of Sex-Offender-Related Special Conditions of
                            Supervised Release
      “When challenged on appeal [and preserved in the district court],
conditions of supervised release are reviewed for an abuse of discretion.”
United States v. Huor, 852 F.3d 392, 397 (5th Cir. 2017).           Conditions of
supervised release must be “reasonably related” to at least one of the following
factors: (1) “the nature and circumstances of the offense and the history and
characteristics of the defendant;” (2) “afford[ing] adequate deterrence to
criminal conduct;” (3) “protect[ing] the public from further crimes of the
defendant;” and (4) “provid[ing] the defendant with needed educational or
vocational training, medical care, or other correctional treatment in the most
effective manner.” 18 U.S.C. §§ 3553(a)(1), (2)(B)–(D), 3583(d)(1); see also
United States v. Weatherton, 567 F.3d 149, 153 & n.1 (5th Cir. 2009).
      Compian argues       that imposing the sex-offender-related special
conditions is not reasonably related to any of the four justifications, noting that
his current offense is not a sex offense. He also argues that his sole prior sex
offense was committed twenty-five years ago. However, we have held that past
sex offenses can be taken into account in assessing special conditions of
supervised release. See Weatherton, 567 F.3d at 153. The special condition in
such a situation must be “justified by a defendant’s criminal history,” United
States v. Salazar, 743 F.3d 445, 452 (5th Cir. 2014), and bear some connection
to the prior offense, United States v. Fields, 777 F.3d 799, 803 (5th Cir. 2015).
      Here, there is a connection between the conditions and Compian’s
criminal history, as access to children was necessary to Compian’s Florida
conviction for lewd and lascivious or indecent assault or act upon or in the
presence of a child. See id. at 804. This differentiates Compian’s case from
cases where, for example, we struck down prohibitions on “sexually
stimulating” materials because access to such materials was wholly unrelated

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to the defendant’s conviction. See, e.g., Huor, 852 F.3d at 402; Salazar, 743
F.3d at 450–52. While timing and number of offenses are relevant, those
factors are not dispositive. See, e.g., Fields, 777 F.3d at 804; United States v.
Cuneo, 554 F. App’x 313, 318–19 (5th Cir. 2014) (per curiam).
       Compian’s “only” sex offense involved a victim under twelve years old.
Although Compian has not since committed another sexual offense, he has
been convicted of various crimes, including assault causing bodily injury to a
family member. Given the totality of the record, and in light of our precedents,
the special conditions could be reasonably justified by Compian’s history and
characteristics, deterrence, and protecting the public. Thus, it was not an
abuse of discretion for the district court to impose sex-offender-related
conditions in this instance.
                      III.    Restrictiveness of Conditions
       Even if the sex-offender-related special conditions are reasonably related
to the § 3553(a) factors, they may “involve no greater deprivation of liberty
than is reasonably necessary for the purposes [of § 3553(a)].” 2 18 U.S.C.
§ 3583(d)(2).    Compian argues that both the registration and locational
conditions are a greater deprivation of liberty than necessary in these
circumstances.
A. Registration Condition
       The registration condition requires that Compian register as a sex
offender for the duration of his supervised release. The Government argues
that, because Compian is already required to register as a sex offender under
Texas law, the registration condition was appropriate in this case. Compian


       2The special conditions also must be “consistent with any pertinent policy statements
issued by the Sentencing Commission.” 18 U.S.C. § 3583(d)(3). Compian does not argue that
his special conditions are inconsistent with Sentencing Commission policy statements.
Therefore, this argument is waived. See United States v. Zuniga, 860 F.3d 276, 284 n.9 (5th
Cir. 2017).
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disputes the Government’s contention that he is required to register as a sex
offender in Texas. 3      We need not decide whether Compian is required to
register by state law, though, to conclude that the condition, as written, is
unduly restrictive.
       Because “it is axiomatic that a district court can include as a condition
that the defendant obey the law,” a special condition that requires a sex
offender who is required to register to continue doing so would be appropriate
as requiring no more than that the sex offender follow the law. See United
States v. Talbert, 501 F.3d 449, 452 (5th Cir. 2007); see also 18 U.S.C. § 3583(d)
(“The court shall order, as an explicit condition of supervised release, that the
defendant not commit another Federal, State, or local crime during the term
of supervision.”). However, the condition here is broader than that, requiring
registration without consideration of whether Compian is otherwise required
to register under state law.
       Imposing sex offender registration undoubtedly carries a stigma. See
Jennings v. Owens, 602 F.3d 652, 659 (5th Cir. 2010) (noting that imposing
sex-offender-related special conditions “would indeed cause stigma,” but
finding the conditions permissible because “the parole board admittedly
label[ed] [the defendant] as a sex offender” and that “label [was] not false as
applied to [the defendant]; it accurately reflect[ed] [the defendant’s] status”).


       3  When the Government filed its appellate brief, it also moved to supplement the
appellate record or, in the alternative, for this court to take judicial notice of a Texas
Department of Public Safety (“DPS”) document (the “DPS document”) that is not available
on a public website. The DPS document purportedly will inform the court as to whether the
Florida offense of which Compian was convicted is “substantially similar” to a Texas offense
which requires lifetime registration, in which case Compian would be required to register for
life in Texas. See TEX. CODE. CRIM. PROC. art. 62.001(5)(H). Because we need not decide
today whether Compian is required to register under Texas law, the motion to supplement
the appellate record is irrelevant to our inquiry and is therefore denied. See United States v.
Chavez-Suarez, 644 F. App’x 289, 290–91 (5th Cir.) (per curiam), cert. denied, 137 S. Ct. 162
(2016).

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Although registration serves as an important notice to the public to protect it
from sexual predators, having registered sex offender status is a clear restraint
on liberty. Given that Compian has not committed another sexual offense since
1991, registration here is a greater deprivation of liberty than reasonably
necessary to protect the public if the law does not otherwise require
registration. Notably, the Government has stated that it is not opposed to
modification of the registration condition to require registration if Compian
must do so under state law. Therefore, we remand to the district court to
amend Compian’s conditions of supervised release to reflect that “sex offender
registration is required to the extent required by state law.”
B. Locational Condition
      Compian’s locational restriction states: “The defendant shall not reside,
work, access, or loiter within 1,000 feet of school yards, parks, playgrounds,
arcades, or other places primarily used by children under the age of 18, or
where children may frequently congregate, unless approved in advance in
writing by the United States Probation Officer.” Compian argues that this
locational condition is a greater deprivation of his liberty than reasonably
necessary because the restrictions are overly broad in light of the fact that he
has only one prior sex offense.
      In Fields, we held that a locational condition imposing “lifestyle
restrictions,” including not residing or “going to places where a minor or minors
are known to frequent without prior approval of the probation officer,” was not
overly restrictive. 777 F.3d at 802, 806. Notably, a variation of “frequent”
appears in both the locational condition in Fields and in this case. Although
Compian argues that “may frequently congregate,” as used here, is more
subjective than “known to frequent,” as used in Fields, those phrases are




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                                      No. 16-41692

materially and sufficiently similar. 4 See id. at 806 (noting that “frequent” can
provide an objective standard, which can be interpreted by the defendant, or
“especially through consultation with his probation officer”). Therefore, the
language itself does not appear to have been an abuse of discretion.
       Further, it is important to note that the sex-offender-related special
conditions here last only three years. The duration of sex-offender-related
special conditions is a consideration in determining whether they are overly
restrictive. See, e.g., Cuneo, 554 F. App’x at 319 (upholding conditions of parole
including mental health treatment, although a sex offense was committed in
1989, noting “that this special condition has a finite duration of five years, and,
during that time, [the defendant] could move to modify the condition” (citing
18 U.S.C. § 3583(e)(1); FED. R. CRIM. P. 32.1(c))).
       We agree that the better practice is for the sentencing court to provide
specific guidance with respect to how a locational condition will be applied to
make it clear, both for a defendant and for a parole officer interpreting the
locational condition on the defendant’s behalf, where a defendant is and is not
permitted to be. However, in this case, the condition is limited sufficiently in
both scope and duration for us to conclude that it was not an abuse of discretion
for the district court to impose it.
                          IV.    Adequacy of Explanation
       In the alternative, Compian argues that the district court failed to
articulate a reasonable relationship between the two sex-offender-related
special conditions and the statutory sentencing factors. Because Compian did



       4  Compian also argues that the use of “access” in the locational condition renders it
unduly restrictive, as it may include activities such as “walk[ing] or driv[ing] down the
street.” However, a reasonable person could determine that access clearly does not sweep
that broadly, and thus, this argument is not persuasive. See, e.g., Access, OXFORD ENGLISH
DICTIONARY (3d ed. 2011) (defining “access,” in relevant part, to mean “[t]o gain admission
to; to enter”).
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not object on this basis at his sentencing, this claim is reviewed for plain error.
See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009).
Plain error requires Compian to show “a clear and obvious error affecting his
substantial rights . . . [which] ‘seriously affects the fairness, integrity or public
reputation of judicial proceedings.’” United States v. Barton, 879 F.3d 595, 598
(5th Cir. 2018) (quoting United States v. Escalante-Reyes, 689 F.3d 415, 419
(5th Cir. 2012) (en banc)). 5
       The first two prongs of plain error require showing an error that is both
clear and obvious. See id. Section 3553(c) requires that a “judge at the time of
sentencing . . . state in open court the reasons for its imposition of the
particular sentence” with respect to special conditions. “[C]ourts of appeals
have consistently required district courts to set forth factual findings to justify
special probation conditions.” Salazar, 743 F.3d at 451 (quoting United States
v. Warren, 186 F.3d 358, 366 (3d Cir. 1999)). “A full explanation of the 18
U.S.C. § 3553(a) factors is not required in every case. The district court need
only ‘set forth enough to satisfy the appellate court that [it] has considered the
parties’ arguments and has a reasoned basis for exercising [its] own legal
decisionmaking authority.’” United States v. Fuentes-Cruz, 690 F. App’x 219,
220 (5th Cir. 2017) (per curiam) (citation omitted) (quoting Rita v. United
States, 551 U.S. 338, 356 (2007)). This court “focus[es] on the district court’s
statements in the context of the sentencing proceeding as a whole.” United



       5 The Supreme Court recently heard argument on the proper application of the
fairness prong of plain-error review from this circuit’s decision in United States v. Rosales-
Mireles, 850 F.3d 246 (5th Cir. 2017), cert. granted, 138 S.Ct. 55, 198 L.Ed.2d 781 (2017). In
the meantime, we apply the en banc majority opinion in Escalante-Reyes rather than the
“shocks the conscience” language from the dissenting opinion. United States v. Broussard,
669 F.3d 537, 554 (5th Cir. 2012); Wicker v. McCotter, 798 F.2d 155, 157–58 (5th Cir.
1986) (even when the Supreme Court has granted certiorari, we continue to follow our own
precedents unless and until the Court says otherwise); see, e.g., United States v. Matias-
Sanchez, No. 16-51462, 2018 WL 280679, at *2 n.2 (5th Cir. Jan. 3, 2018) (per curiam).

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States v. Diaz Sanchez, 714 F.3d 289, 294 (5th Cir. 2013).
      Here, immediately before sentencing Compian and imposing the special
conditions, the sentencing judge stated, “I’m going to look at the factors in 3153
– 3553(a) to come up with a place in the new Guidelines, looking at protecting
the public, and it looks quite impossible to deter your future criminal conduct.”
The judge stated that (1) she intended to follow § 3553(a), which helps
determine whether special conditions are appropriate under § 3583, in
imposing Compian’s sentence, and (2) she considered deterrence and
protecting the public as factors in sentencing.        Further, when Compian’s
attorney objected on the basis that the sex offense was twenty-five years old at
the time, the judge said the following: “And was the child under the age of
twelve that he tried to rape? No, I think he needs to be a registered sex
offender.” In the context of the proceeding as a whole, it appears that the
sentencing judge did appropriately articulate her considerations in sentencing
Compian to sex-offender-related special conditions, such that it was not a clear
or obvious error. Therefore, Compian’s argument that the sentencing judge’s
explanation was inadequate fails plain error review.
                               V.      Conclusion
      The district court’s judgment is AFFIRMED as modified and remanded
to the district court to modify the registration sex-offender-related special
condition in accordance with this opinion.         The Government’s motion to
supplement the record is DENIED.




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