     Case: 15-30197      Document: 00513566173         Page: 1    Date Filed: 06/27/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                      No. 15-30197                               FILED
                                                                             June 27, 2016
                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                        Clerk

              Plaintiff–Appellee,

v.

TYRONE BRADSHAW,

              Defendant–Appellant.




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:13-CR-122-1


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
       Tyrone Bradshaw appeals special conditions of his supervised release
that require him to apply any federal income tax refund to court-ordered
monetary obligations and to make financial disclosures to the United States
Probation Department when requested. We decline to exercise our discretion
to correct any error that may attend Bradshaw’s sentence under plain error
review, and therefore affirm.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                           I
      In 1985, Bradshaw was convicted in California state court of kidnapping,
forcibly raping, and robbing a woman. The conviction for forcible rape requires
Bradshaw to register as a sex offender for the rest of his life. 1 Sometime in
2012, Bradshaw traveled to Louisiana and obtained a Louisiana identification
card. However, he failed to register as a sex offender.
      Bradshaw was indicted in the Western District of Louisiana pursuant to
18 U.S.C. § 2250(a) for his failure to register, and subsequently pleaded guilty.
The district court sentenced him to forty-one months of imprisonment, to be
followed by a seventeen-year term of supervised release. The district court
imposed the following three special conditions of supervised release as part of
the sentence:
            1. The defendant shall apply any Federal income tax refund
      received during the period of supervision toward any unpaid court
      ordered monetary obligation.
           2. The defendant shall be subject to financial disclosure
      throughout the period of supervised release and shall provide U.S.
      Probation with all requested financial documentation. The
      defendant shall report all household income to U.S. Probation as
      requested.
           3. The defendant shall comply with the requirements of the
      Sex Offender Registration and Notification Act as required by law.
      Bradshaw timely filed a notice of appeal. His appointed counsel initially
moved to withdraw and filed a brief in accordance with Anders v. California, 2
taking the position that Bradshaw’s appeal had no merit. However, after we
ordered a supplemental brief as to two potentially non-frivolous issues, counsel
withdrew the motion to withdraw and filed a brief on the merits. Bradshaw
now argues on appeal that the district court plainly erred in imposing, without


      1   See 42 U.S.C. § 16913(a).
      2   386 U.S. 738 (1967).
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                                    No. 15-30197
explanation, the special conditions requiring him to apply any federal income
tax refund to unpaid court-ordered monetary obligations and to make financial
disclosures to the United States Probation Department. He argues that the
district court failed to explain the basis for these two conditions and that they
are not reasonably related to any permissible goal of sentencing.
                                           II
      The “broad discretion” given to district courts in imposing conditions of
supervised release is limited in several important ways. 3 First, the condition
must be “reasonably related” to one of four statutory factors:
      (1) the nature and characteristics of the offense and the history
      and characteristics of the defendant, (2) the deterrence of criminal
      conduct, (3) the protection of the public from further crimes of the
      defendant, and (4) the provision of needed educational or
      vocational training, medical care, or other correctional treatment
      to the defendant. 4
Second, “the condition cannot impose any ‘greater deprivation of liberty than
is reasonably necessary’ to advance deterrence, protect the public from the
defendant, and advance the defendant’s correctional needs.” 5              Third, “the
condition must be consistent with the policy statements issued by the
Sentencing Commission.” 6
      Because Bradshaw did not object to the financial special conditions in
the district court, we review only for plain error. 7 To demonstrate plain error,
Bradshaw must show that “(1) there is error . . . ; (2) it is plain; and (3) it affects
substantial rights.” 8 If Bradshaw satisfies these three requirements, we have



      3  United States v. Ferguson, 369 F.3d 847, 852 (5th Cir. 2004) (per curiam).
      4  United States v. Weatherton, 567 F.3d 149, 153 (5th Cir. 2009) (citing 18 U.S.C.
§§ 3583(d)(1), 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D)).
       5 Id. (quoting 18 U.S.C. § 3583(d)(2)).
       6 Id. (citing 18 U.S.C. § 3583(d)(3)).
       7 United States v. Prieto, 801 F.3d 547, 549 (5th Cir. 2015) (per curiam).
       8 United States v. Peltier, 505 F.3d 389, 392 (5th Cir. 2007).

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“the discretion to remedy the error—discretion which ought to be exercised
only if the error ‘seriously affect[s] the fairness, integrity or public reputation
of judicial proceedings.’” 9
       We will assume, without deciding, that Bradshaw has met the first three
requirements of the plain error standard of review because we resolve at step
four of the analysis not to exercise our discretion to correct the error. At step
four, “we look to the degree of the error and ‘the particular facts of the case’ to
determine whether to” correct the error. 10 We have previously stressed that
“we do not view the fourth prong as automatic if the other three prongs are
met.” 11
       In United States v. Prieto, we declined to exercise our discretion and
affirmed a special condition prohibiting the defendant from possessing
pornographic materials. 12 In doing so, we emphasized in particular that the
modifiable nature of a condition of release should “weigh[] heavily in our
consideration of the fourth prong.” 13 Though the fact that a condition may be
modified or removed by the sentencing court in the future is not dispositive, “a
defendant faces an uphill battle when he seeks to convince us that a modifiable
condition ‘seriously affect[s] the fairness, integrity or public reputation of
judicial proceedings.’” 14 In addition, the panel in Prieto found significant the
defendant’s extensive criminal history and the fact that the presentence report




       9 Puckett v. United States, 556 U.S. 129, 135 (2009) (alteration in original) (quoting
United States v. Olano, 507 U.S. 725, 736 (1993)).
       10 Prieto, 801 F.3d at 554 (quoting United States v. Avalos–Martinez, 700 F.3d 148,

154 (5th Cir. 2012) (per curiam)).
       11 United States v. Escalante-Reyes, 689 F.3d 415, 425 (5th Cir. 2012) (en banc); see

also Olano, 507 U.S. at 736 (“[T]he discretion conferred by Rule 52(b) should be employed in
those circumstances in which a miscarriage of justice would otherwise result.”).
       12 Prieto, 801 F.3d at 554-55.
       13 Id. at 554.
       14 Id. (alteration in original) (quoting Puckett, 556 U.S. at 135).

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prepared by the Probation Department warned the defendant about the
challenged condition and he still failed to object. 15
      Here, Bradshaw’s criminal history is extensive and includes convictions
for forcible rape, kidnapping, armed robbery, theft, and possession of a
controlled substance. He also has a prior state conviction for failure to register
as a sex offender, has repeatedly failed to register, and “defiantly” told
members of the U.S. Marshals Service in 2012 that he will not register in the
future and will instead “go on the run again” after serving his prison sentence.
Bradshaw’s significant criminal history weighs in favor of our declining to
exercise our discretion. The financial conditions may make it easier for the
Probation Department to closely monitor Bradshaw and certainly undermine
any suggestion that the conditions, which are not particularly onerous, will be
viewed by the public as a “miscarriage of justice.” 16 Moreover, Bradshaw has
moved around the country in the past. The financial conditions may make it
easier for the Probation Department to track him in order to ensure his
compliance with his registration obligation and with the conditions of his
supervised release. Finally, and most significantly, as in Prieto, the conditions
here are modifiable. If the probation officer requests financial information in
the future and Bradshaw views that request to be unreasonable, he may seek
modification from the district court.
      In sum, “we do not think that the public would perceive any grave
injustice” from the imposition of modifiable conditions requiring a defendant
with such a serious criminal background to make financial disclosures to the
Probation Department and apply any federal tax refund to any court-related




      15   Id.
      16   Olano, 507 U.S. at 736.
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financial obligations. 17 Accordingly, we decline to exercise our discretion to
correct the district court’s error.
                                      *    *        *
      For the foregoing reasons, we AFFIRM the judgment of the district court.




      17   Prieto, 801 F.3d at 554.
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