     Case: 12-50695   Document: 00512541566     Page: 1   Date Filed: 02/24/2014




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

                                                                  FILED
                                                               February 24, 2014
                                 No. 12-50695
                                                                Lyle W. Cayce
                                                                     Clerk
UNITED STATES OF AMERICA,

                                     Plaintiff–Appellee

v.

SAMMY SALAZAR,

                                      Defendant–Appellant




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



Before HIGGINBOTHAM, CLEMENT, and PRADO, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
      Defendant–Appellant Sammy Salazar (“Salazar”) violated the terms of his
supervised release, and was sentenced to a prison term plus an additional period
of supervised release. The parties dispute both the standard of review and the
legality of a special condition of supervised release imposed on Salazar. We
review the district court’s sentencing conditions for an abuse of discretion, and
hold that the district court abused its discretion by imposing the challenged
condition on Salazar without demonstrating that it is reasonably related to the
statutory factors.
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                                   No. 12-50695
            I. FACTUAL AND PROCEDURAL BACKGROUND
      Salazar was serving a suspended sentence of ten years for his conviction
of third-degree sexual abuse when, in 2011, he was found guilty of failing to
register as a sex offender under the Sex Offender Registration and Notification
Act, 18 U.S.C. § 2250 (“SORNA”). Salazar was sentenced to time served plus
fifteen years of supervised release. The district court imposed nine special
conditions to be followed during his period of supervised release, and he
appealed, arguing that Special Conditions Nos. 2 through 8 were not announced
orally at his sentencing hearing. The government filed an unopposed motion to
modify the judgment to conform to the oral pronouncement by striking those
conditions, which this court granted. United States v. Salazar, No. 11-50843
(5th Cir. Feb. 8, 2012) (three-judge order).
      In 2012, Salazar’s probation officer moved to revoke his supervised release,
alleging that he committed a crime of family assault, failed to notify his
probation officer within 72 hours of his arrest, and failed to meet with a sex
offender counselor as required by his probation officer, all violations of conditions
of his supervised release that this court did not strike. The district court then
revoked Salazar’s supervised release term and imposed a prison term of twelve
months, to be followed by fourteen years of supervised release. The court also
imposed nine supervised release conditions, including Special Condition No. 6
(“Condition No. 6”), which requires Salazar to “refrain from purchasing,
possessing, or using any sexually stimulating or sexually oriented materials
including but not limited to written, audio and visual depictions, such as,
pornographic books, magazines, photographs, films, videos, DVDs, computer
programs, or any other media for portrayal of the same.”


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                                   No. 12-50695

      The court announced the conditions at Salazar’s sentencing hearing, after
which his counsel, Angela Saad, asked to approach. The court responded, “Those
are conditions, Ms. Saad. Those are going to be added today. I’m adding them.
Those are new.” Counsel stated, “Then, Your Honor, we would object to the
additional conditions.” The court replied, “No, you can’t, Ms. Saad, because this
is a new judgment and a new order.” Counsel then stated, “Your Honor, we–for
the record, preserving my client’s . . . .” at which point the court told counsel,
“You better be specific what your objection is.” When counsel asked to approach,
the following discussion took place:

      THE COURT:         Counsel, I’m aware that this is what went up on
                         appeal because they weren’t written at the time
                         of the sentence. This is not the original sentence.
                         This is a new sentence on revocation. I am adding
                         these conditions. I may do so under the terms of
                         the supervised release and a revocation. So these
                         are additional conditions that I am imposing on
                         the revocation.

      SAAD:              Then Your Honor, we would object and make a
                         new objection that they’re overly burdensome and
                         --
      THE COURT:         Overruled, counselor.
      SAAD:              - - and - -
      THE COURT:         Overruled.
      SAAD:              Thank you, Your Honor.
      THE COURT:         Overruled.
      Salazar filed a timely notice of appeal, and now contends that Condition
No. 6 is not reasonably related to the goals of supervised release and
impermissibly impinges on his First Amendment rights.

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                                  No. 12-50695

                         II. STANDARD OF REVIEW
      This court reviews properly preserved objections to the imposition of
conditions of supervised release for an abuse of discretion. See United States v.
Paul, 274 F.3d 155, 165 (5th Cir. 2001); see also United States v. Woods, 547 F.3d
515, 517 (2008) (per curiam). When a party fails to raise a claim of error with
sufficient specificity to the district court, this court applies a plain error
standard of review. United States v. Mondragon–Santiago, 564 F.3d 357, 361
(5th Cir. 2009). To satisfy the threshold specificity required to avoid a plain
error review, a party’s claim of error or objection must alert the district court to
the nature of the alleged error and provide an opportunity for the court to
identify and correct it. Id. (citing United States v. Rodriguez, 15 F.3d 408, 414
(5th Cir. 1994)).
      The parties dispute the appropriate standard of review. The government
urges this court to review for plain error because Salazar’s objection—that the
conditions of supervised release were overly burdensome—was insufficient to
give the district court the opportunity to resolve the issues he now raises before
this court. The government argues that when the district court told counsel to
be more specific as to Salazar’s objections, she continued with a general
objection to the broadness of all imposed conditions. By failing to object to
Condition No. 6 with specificity, the government contends, Salazar waived his
right to preserve an objection which this court could review for abuse of
discretion.
      Salazar asks this court to apply an abuse of discretion standard, claiming
that the district court “cut off” counsel’s attempts to respond by interrupting her
and overruling her objections mid-sentence and before she could specify her
objections on the grounds raised in this appeal. Salazar argues that any future

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                                  No. 12-50695
attempts to object to his supervised release conditions with specificity were futile
because the court failed to give his counsel a reasonable opportunity to explain
her objections or ask for the rationale behind the court’s refusal to sustain them.
      The court agrees with Salazar. A party’s failure to raise a claim or
objection with specificity does not result in plain error review if “the party made
its position clear to the district court and to have objected would have been
futile.” United States v. Castillo, 430 F.3d 230, 242 (5th Cir. 2005); see also
United States v. Mendiola, 42 F.3d 259, 260 n.2 (5th Cir. 1994). In Castillo, for
example, a federal prosecutor inadvertently disclosed a defendant’s HIV-positive
status during a sentencing hearing in the presence of several prisoners. Id. at
235. The court interrupted the prosecutor’s efforts to apologize and explain
himself. Id. at 236. At the end of the hearing, the court departed downward sua
sponte on the basis that the disclosure would pose a danger to the defendant in
prison, but the prosecutor made no objection to the departure. Id. at 237.
      On the government’s appeal of the departure, this court concluded that
because there was no prior notice that the district court intended to depart
downward on the basis of the disclosure, the prosecutor had no reason to believe
any objection would be required. Id. at 242. In addition, in light of the district
court’s anger and unusual hostility toward the prosecutor, requiring the
government to formally object to the departure would not have served the
purposes of the contemporaneous objection rule. Id. at 243. In light of the
“unique set of circumstances,” this court concluded that the government was
prevented from an opportunity to raise the issue, and any attempts to object
would have been futile. Id.
      Similarly, in Mendiola, the defendant appealed an enhancement for
driving while intoxicated after escaping from a halfway house. 42 F.3d at 260.

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                                  No. 12-50695
At sentencing, defendant’s counsel began to object that DWI was more harshly
punished in Texas than in other states, and that if it had happened in another
state, his client “would not be looking at . . . ,” at which point the court
interrupted him, overruled his objection, and told him it was preserved. Id. at
260 n.2. This court concluded that the essential substance of the objection was
made known to the court, and the record showed that the court ruled on it before
counsel had an opportunity to explain it fully. Id. Given the context, “counsel
was entitled to believe that further explanation would not be welcomed or
entertained by the district court.” Id. Thus, this court held that the objection
adequately preserved issues for review. Id.
      Like the prosecutor in Castillo, Salazar had no reason to object to the
conditions prior to sentencing, as they were not announced until that time.
Upon being notified, Salazar’s counsel made multiple attempts to object to the
conditions of supervised release. After the court’s alert that “[Salazar] better be
specific what [his] . . . objection is,” Salazar’s counsel asked to approach the
bench in an attempt to convey more specificity in her objection. Counsel then
initially objected broadly to the conditions on account of their overly burdensome
nature, but before counsel had an opportunity to finish her sentence, the court
overruled her objection three times. Salazar’s counsel reasonably believed that
the district would not have welcomed or entertained any further discussion of
the issue.
      Salazar’s counsel also brought the essential substance of the objection to
the court’s attention. Just as the defendant’s counsel in Mendiola informed the
court of his objection to the defendant’s sentence on equal protection grounds
before the court cut him off, Salazar made the court substantively aware that he
was contesting the conditions of his supervisory release.           Although the
government contends that Salazar’s counsel made a “global objection” to all the

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                                  No. 12-50695
conditions of supervised release as overly burdensome and did not present the
specific arguments now raised concerning Condition No. 6’s prohibition of
sexually oriented materials, counsel was interrupted before she could expound
on her objection. Thus, we review for abuse of discretion.
                               III. DISCUSSION
      Salazar claims on appeal that Condition No. 6, which prohibits him from
possessing, using, or purchasing sexually stimulating or oriented materials, is
impermissible for two reasons. First, Salazar argues that Condition No. 6 is not
reasonably related to the statutory supervised release factors because although
his underlying offense—failure to register as a sex offender under SORNA—was
predicated on a third-degree sexual abuse offense, there is no indication that
sexually stimulating or sexually oriented materials contributed either to the
predicate offense or the failure to register. If we determined that a condition
was reasonably related, the court must then evaluate whether the restriction
imposed a greater deprivation of liberty than was reasonably necessary to
achieve the statutory goals of supervised release.
      The government contends that the condition is reasonably related to the
goals of sentencing because it took into account Salazar’s history, characteristics,
and criminal activity when it determined the necessity of restricting his access
to sexually stimulating materials. Further, the government argues generally
that the condition is reasonably necessary because it is related to deterrence,
rehabilitation, and the protection of the public. The government also claims that
the condition will reduce Salazar’s risk of recidivism by mitigating his “proclivity
for predatory sexual behavior.”
      In his second point of error, Salazar argues that Condition No. 6 is so
overbroad that it violates his rights under the First Amendment because it
encompasses legal pornography and materials that might not be pornographic,
but may nonetheless be sexually stimulating. The government argues that this


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                                   No. 12-50695
court has affirmed similar conditions previously, and likewise should affirm
here.
        As Salazar points out, this court’s previous decisions in connection with
prohibitions on sexually explicit material were upheld under plain error review.
Abuse-of-discretion review of the question of whether a prohibition on sexually
stimulating materials is reasonably related to the sentencing factors appears to
be a res nova issue. Salazar’s second argument, that the condition violates the
First Amendment, also appears to be res nova in this circuit.
        For the reasons described below, we hold that the district court abused its
discretion by not explaining how Condition No. 6 is reasonably related to the
goals of supervised release. We thus do not reach the issue of whether the
condition is reasonably necessary, nor the First Amendment issue.
        Whether the Condition is Reasonably Related to the Goals of
        Salazar’s Supervised Release
        Salazar claims that Condition No. 6 is not reasonably related to the
statutory supervised release factors because there was no indication that
sexually stimulating or sexually oriented materials contributed to his failure to
register as a sex offender.

        District courts have wide discretion in imposing special conditions of
supervised release. Paul, 274 F.3d at 164–65; see also 18 U.S.C. § 3583(d).
First, such conditions must be reasonably related to one of the following
statutory factors: (i) the nature and circumstances of the offense and the history
and characteristics of the defendant; (ii) the need to afford adequate deterrence
to criminal conduct; (iii) the need to protect the public from further crimes of the
defendant; and (iv) the need to provide the defendant with needed training,
medical care, or other correctional treatment in the most effective manner. 18
U.S.C. § 3553(a)(1)–(2); see also Paul, 274 F.3d at 165. A condition satisfies the
requirements if it is reasonably related to any of the four factors. United States


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                                  No. 12-50695
v. Weatherton, 567 F.3d 149, 153 (5th Cir. 2009). Second, supervised release
conditions cannot involve a “greater deprivation of liberty than is reasonably
necessary” to achieve the statutory goals. Paul, 274 F.3d at 165 (citing 18 U.S.C.
§ 3583(d)).

      Congress requires the sentencing court to state “the reasons for its
imposition of the particular sentence.” 18 U.S.C. § 3553(c). Accordingly, “courts
of appeals have consistently required district courts to set forth factual findings
to justify special probation conditions.” United States v. Warren, 186 F.3d 358,
366 (3d Cir. 1999).    Where the district court’s rationale is unclear, “it is
incumbent upon us to vacate, though not necessarily to reverse.” United States
v. Gilman, 478 F.3d 440, 446 (1st Cir. 2007); see also United States v. Rhone, 535
F.3d 812 (8th Cir. 2008) (vacating and remanding for resentencing where district
court failed to adequately explain and record did not support condition of
supervised release); United States v. Voelker, 489 F.3d 139, 155 (3d Cir. 2007)
(remanding for resentencing because of district court’s failure to explain
condition prohibiting defendant from possessing sexually explicit materials). In
some cases, a court of appeals has affirmed where the “court’s reasoning can be
inferred after an examination of the record.”               See United States v.
Perazza–Mercado, 553 F.3d 65, 76 (1st Cir. 2009) (internal citation and quotation
marks omitted).

      The district court abused its discretion by not explaining how Condition
No. 6 is reasonably related to the statutory factors, and moreover, based on the
record before us, it was an abuse of discretion to conclude that Condition No. 6
is reasonably related to the sentencing factors. We vacate and remand for the
district court to either articulate a reasonable relationship between Condition
No. 6 and the statutory factors or dismiss the condition.

      i.      The nature and circumstances of the offense and the history and
              characteristics of the defendant

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                                  No. 12-50695
      Salazar argues that the prohibition on sexually stimulating materials does
not adequately represent the nature and circumstances of his offense—failure
to register as a sex offender under SORNA. However, a special condition that
is not related to the crime of conviction will nevertheless be upheld as long as it
is justified by a defendant’s criminal history. See Weatherton, 567 F.3d at
153–54; see also United States v. Prochner, 417 F.3d 54, 63 (1st Cir. 2005) (“[T]he
fact that the special condition of sex offender treatment is not related to the
crime of conviction does not, by itself, render the condition invalid.”).

      Nothing in Salazar’s history suggests that sexually stimulating materials
fueled his past crimes. Further, the district court below did not explain why this
restriction is necessary for Salazar. There does not appear to be any evidence
that Salazar is a repeat offender of sex crimes or that access to pornographic
materials contributed to his original offense. In fact, there has been no evidence
presented that Salazar ever used pornography. The government’s briefing offers
little support: “The Supervised release was also related to deterrence, his
rehabilitation, and protecting the public. Moreover, it may serve Appellant as
well, by minimizing the potential for recidivism and his proclivity for predatory
sexual behavior.”

      The government’s reasoning does not explain Condition No. 6, however,
because there is little indication that Salazar has an abnormal potential for
recidivism or any “proclivity for sexual behavior.” There is no evidence of
predatory sexual behavior beyond his singular and now-remote sexual offense.
To be sure, Salazar failed to register as a sex offender and failed to meet with his
sex offender counselor as ordered. But these violations alone, though significant,
do not on their face appear to justify the imposition of this restriction.
Additionally, the arrest that prompted this revocation does not appear to be sex
related. There is “no suggestion in the PSR or at sentencing that appellant had
abused or even possessed pornography in the past, much less that it contributed

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                                 No. 12-50695
to his offense or would be likely to do so in the future.” See Perazza–Mercado,
553 F.3d at 76.

      ii & iii.    Protecting the public and adequately deterring the defendant
                   from future criminal conduct
      This court has also previously upheld conditions that prohibit access to
sexually stimulating and sexually oriented materials when the conditions were
related to protecting the public and adequately deterring the defendant from
committing future criminal conduct. United States v. Brigham, 569 F.3d 220,
233–34 (5th Cir. 2009); Paul, 274 F.3d at 169. Here, however, the district court
did not specify how Condition No. 6 would protect the public and deter Salazar
from future criminal conduct. On our own review of the record, there is little
indication that Salazar has a high potential for committing future sexual crimes.
It is hard to imagine how preventing Salazar from accessing sexually
stimulating materials would prevent future criminal conduct when there is no
indication in the record that Salazar has an unhealthy relationship with such
materials or that such materials contributed to his underlying crimes or other
violations.

      iv.     Providing the defendant with correctional treatment in the most
              effective manner
      Courts may also consider the need to provide the defendant with
correctional treatment in the most effective manner when imposing conditions
of supervised release. Brigham, 569 F.3d at 234. Once again, the district court
did not provide a specific explanation for how the condition would provide
treatment to Salazar. Furthermore, we cannot conclude, based on the evidence
before us, that the district court could have determined that Condition No. 6 is
reasonably related to the need to provide Salazar with effective correctional
treatment. Again, there was no evidence presented that sexually stimulating
materials contributed to Salazar’s crimes or that sexually stimulating materials


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                                  No. 12-50695
otherwise negatively impact Salazar’s life in a way that would benefit from
“correctional treatment.”

      The district court abused its discretion by not providing sufficient reasons
to support the imposition of Condition No. 6. On our review of the record before
us, there is insufficient evidence of a reasonable relationship between the
condition and the statutory factors. Therefore, we conclude that the district
court abused its discretion by imposing this condition without demonstrating
that it was reasonably related to the statutory factors as applied to Salazar. See,
e.g., United States v. Armel, 585 F.3d 182 (4th Cir. 2009) (striking down a
condition prohibiting pornography under an abuse of discretion standard when
the violation was for threats to the FBI and the district court did not explain the
rationale for the condition). On remand, the district court may reconsider the
appropriateness of a ban on possessing pornography as a condition of supervised
release. If it chooses to impose such a prohibition, it should explain the basis for
doing so. See Perazza-Mercado, 553 F.3d at 67.

                              IV. CONCLUSION

      For the foregoing reasons, we VACATE and REMAND Condition No. 6 of
the sentence imposed by the district court for further consideration in light of
this opinion. The resentencing shall be limited to a re-examination of the
conditions of supervised release that underlie this appeal.




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