     Case: 14-41447      Document: 00513200762         Page: 1    Date Filed: 09/21/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-41447
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        September 21, 2015
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff–Appellee,

versus

THOMAS DAVID THOMPSON,

                                                 Defendant–Appellant.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:14-CR-566-1




Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM: *

       Thomas Thompson pleaded guilty of possession of child pornography.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-41447

During the investigation, police learned that Thompson had sexually abused
his stepdaughter and step-granddaughter when they were young. The district
court sentenced him to ninety-seven months in prison and a life term of super-
vised release (“SR”). The court imposed several special conditions of SR related
to the sexual abuse, including a prohibition against “contact with any minor
child without being supervised by an adult family member of the child.” The
court also imposed a condition requiring Thompson to obtain consent from his
probation officer before having contact with his step-granddaughter “or [her]
family, and that’s the little girl, including letters, communication devices,
audio or visual devices, visits, or any contact through a third party.” Thompson
contends that the court plainly erred by imposing the latter condition, although
he concedes that it is appropriate as applied to his stepdaughter and step-
granddaughter.

      “A district court has wide discretion in imposing terms and conditions of
[SR].” United States v. Paul, 274 F.3d 155, 164 (5th Cir. 2001). “[SR] condi-
tions may include barring a defendant . . . from associating unnecessarily with
specified persons.” United States v. Rodriguez, 558 F.3d 408, 412 (5th Cir.
2009) (internal quotation marks and citations omitted). “It is axiomatic that
the infringement of constitutional liberties occurs concomitantly with convic-
tion of a crime, and many conditions of [SR] therefore permissibly infringe lib-
erty interests.” United States v. Woods, 547 F.3d 515, 519 (5th Cir. 2008)
(internal citations omitted).

      The district court may impose “any . . . condition it considers to be appro-
priate” so long as the condition meets the following criteria: (1) it “is reasona-
bly related to the factors set forth in [18 U.S.C. §] 3553(a)(1), (a)(2)(B), (a)(2)(C),
and (a)(2)(D);” (2) it “involves no greater deprivation of liberty than is reason-
ably necessary for the purposes set forth in section 3553(a)(2)(B), (a)(2)(C), and


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                                   No. 14-41447

(a)(2)(D);” and (3) it “is consistent with any pertinent policy statements issued
by the Sentencing Commission.” 18 U.S.C. § 3583(d). The referenced sentenc-
ing factors are “the nature and circumstances of the offense and the history
and characteristics of the defendant,” § 3553(a)(1), along with “the need for the
sentence imposed . . . to afford adequate deterrence to criminal conduct,”
§ 3553(a)(2)(B), “to protect the public from further crimes of the defendant,”
§ 3553(a)(2)(C), and “to provide the defendant with needed educational or voca-
tional training, medical care, or other correctional treatment in the most effec-
tive manner,” § 3553(a)(2)(D).

      We typically review special conditions of SR under a “deferential abuse-
of-discretion standard, pursuant to Gall [v. United States, 552 U.S. 38, 51
(2007)].” Rodriguez, 558 F.3d at 412. Plain-error review applies here, however,
because Thompson made no objection to the condition in the district court. See
United States v. Phipps, 319 F.3d 177, 192 (5th Cir. 2003). We give “considera-
ble deference to the judgment of the district court” in reviewing conditions of
SR for plain error. United States v. Ellis, 720 F.3d 220, 228 (5th Cir. 2013)
(internal quotation marks and citation omitted). To establish plain error, the
appellant must show a forfeited error that is clear or obvious and that affects
his substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). An
error is not clear or obvious if it is subject to reasonable debate. Id. If the
appellant makes such a showing, this court has the discretion to correct the
error, but only if it seriously affects the fairness, integrity, or public reputation
of judicial proceedings. Id.

      Thompson contends that the condition restricting his access to the vic-
tims’ adult family members is overly broad because they are also his family.
He claims that he has no relevant history that would justify the restriction and
that the condition is unrelated to the nature and circumstances of the offense,


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his history or characteristics, the need to deter crime, the need to protect the
public, or his need for rehabilitation. He complains that the district court
failed to define the scope of the condition narrowly or to explain how it furthers
any relevant sentencing goals. For the first time in his reply brief, he also
maintains that the failure to explain how the condition relates to the statutory
sentencing factors itself was plain error. We do not, however, ordinarily con-
sider arguments raised for the first time in a reply brief. United States v.
Aguirre-Villa, 460 F.3d 681, 683 n.2 (5th Cir. 2006).

      Thompson further urges that, even if the condition were reasonably
related to applicable sentencing factors, it represents a greater deprivation
than necessary of his liberty interest in associating with his adult family mem-
bers, including his wife and son. He argues that the restriction will impede
rather than promote his rehabilitation, one of the sentencing goals. According
to Thompson, the condition could have been narrowly tailored to apply only to
the two victims or in situations in which he was attempting to use another
family member to reach them. He contends that the separate condition requir-
ing adult supervision by a family member, any time he has contact with a
minor, sufficiently addresses any concern that he will have contact with a child
in the family.

      According to Thompson, the challenged condition is similar to the restric-
tion at issue in United States v. Torres, 281 F. App’x 394, 403 (5th Cir. 2008),
that prohibited the defendant from living with anyone other than blood rela-
tives or a spouse. There we found that the district court had plainly erred by
imposing the condition because it had no relation to the defendant’s offenses,
the need to protect the public, or his rehabilitation and would prevent him from
living with his step-brother. Id. Thompson also relies on Woods, 547 F.3d
at 517–18, which likewise involved a condition barring a defendant convicted


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                                  No. 14-41447

of a drug offense from living with anyone other than a blood relative or spouse.
The district court in Woods attributed the defendant’s criminal behavior to a
series of destabilizing factors, including her lack of a father figure, her mother’s
decision to have two children with another man, her long-term drug and alco-
hol abuse, and a lack of steady employment. Id. at 516–17. Although the dis-
trict court stated that the condition was imposed to provide the defendant sta-
bility in her home, we pointed out that she was living with a blood relative, her
mother, at the time of her arrest and could live with her again under the resi-
dency condition. Id. at 516–17, 519. We noted that the residency restriction
might prevent her from living with potentially stabilizing nonrelatives. Id.
at 519. We concluded that the condition was not reasonably related to the
sentencing factors and that a less intrusive condition could satisfy the goal of
stability. Id. at 518–19.

      Woods and Torres are distinguishable because the residency conditions
restricted the defendants’ ability to associate with “classes of people (as distin-
guished from individuals or groups with whom the defendant has a relevant
history).” Woods, 547 F.3d at 518. In contrast, the condition here reasonably
relates to Thompson’s relevant history with a specific group, the adults in his
family. The record reflects that he uses his familial connections to access the
children that he sexually abuses (including connections made through his wife,
who wrote a letter in his support to the district court). The district court found
that Thompson is “a predator” who poses a “threat to children and to society”
and is especially dangerous because of his seemingly harmless, fatherly
persona―likening him to a “loaded gun that nobody even realizes is there.”
Thompson admitted that he has a sickness that causes him to engage in sexual
abuse. The condition requiring him to obtain the probation officer’s consent
before he contacts the victim’s family thus relates to his history and



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                                   No. 14-41447

characteristics, the nature of his offense, the need for deterrence, and the need
to protect the public. Additionally, the extent of the intrusion on Thompson’s
liberty interest differs from the absolute bar against association present in Tor-
res and Woods, because Thompson must only obtain his probation officer’s
consent before contacting family members.

      The instant case is more analogous to Ellis, 720 F.3d at 223, in which
the defendant also was convicted of possessing child pornography, had a his-
tory of sexually molesting children in his family, and was sexually abused as a
child. The court imposed a life term of SR with conditions that included abso-
lute bars against “contact with persons under the age of 18” and accessing or
loitering at locations where children frequently congregate. Id. at 223–24. The
conditions also required the probation officer’s consent before the defendant
could work or volunteer at a location where minors congregate, before he could
“date or befriend anyone who has children under the age of 18,” and before he
could have unsupervised contact with minors at any location. Id. We found no
abuse of discretion. Id. at 225.

      With respect to the condition in Ellis requiring the probation officer’s
consent before the defendant could date or “befriend” someone with minor chil-
dren, we determined that the restriction was “reasonably related to public
safety because Congress has made clear that children . . . are members of the
public it seeks to protect.” Ellis, 720 F.3d at 226 (internal quotation marks
and citation omitted). We found no abuse of discretion even “though the condi-
tions contain[ed] separate restrictions on contact with minors,” where, as here,
the evidence showed that the defendant “has a proclivity to use close relation-
ships to reach children, as he reached [his nephews] through his relationship
with their family.” Id.; see also Rodriguez, 558 F.3d at 410–11, 414–17 (finding
no abuse of discretion in the imposition of condition requiring probation


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                                  No. 14-41447

officer’s written consent before a defendant who had sexually assaulted his
girlfriend’s fifteen-year-old daughter could visit his own children).

      In another analogous decision, albeit unpublished, we reviewed a special
condition barring the defendant from living with her husband during her
three-year term of SR. United States v. Balderas, 358 F. App’x 575, 578–82
(5th Cir. 2009). The defendant argued that the condition was “an unconstitu-
tional restraint on her freedom to associate and maintain certain intimate
human relationships and [wa]s a greater deprivation of liberty than [wa]s rea-
sonably necessary.” Id. at 578. She claimed that the condition was “tanta-
mount to divorce and would essentially render her homeless.” Id.

      This court found no plain error, even though the court did not expressly
rely on any of the sentencing goals in imposing the condition. See id. at 581.
We concluded that any error in imposing the condition was not clear or obvious
in light of caselaw from other circuits affirming conditions that restricted the
defendant’s intimate associations. See id. at 580–81 & n.19 (collecting cases).
The district court had implicitly found that the defendant’s “cohabitation with
her husband contributed to her criminal conduct” and that “she was in danger
of abuse from her husband.” Id. at 580. In light of the evidence, the court could
have determined that the condition was reasonably related to the need to deter
further criminal conduct, protect the public, and provide effective correctional
treatment to the defendant. Id. at 581.

      Taking account of the analogous cases and the evidence of Thompson’s
“proclivity to use close relationships to reach children,” Ellis, 720 F.3d at 226,
the condition requiring him to obtain the probation officer’s consent before con-
tacting adult family members is subject to reasonable debate. Accordingly, any
error in imposing the condition was not clear or obvious, and we find no plain
error. See Puckett, 556 U.S. at 135. The judgment of sentence is AFFIRMED.


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