     Case: 13-51212      Document: 00513486185         Page: 1    Date Filed: 04/29/2016




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

                                      No. 13-51212
                                                                                      Fifth Circuit

                                                                                    FILED
                                                                                April 29, 2016

UNITED STATES OF AMERICA,                                                      Lyle W. Cayce
                                                                                    Clerk
              Plaintiff - Appellee

v.

ERIC PATON CARPENTER, also known as Eric Payton Carpenter,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:10-CR-231


Before DAVIS, SOUTHWICK, and COSTA, Circuit Judges.
PER CURIAM:*
       Eric Paton Carpenter pleaded guilty to a single count of possession of
child pornography in violation of 18 U.S.C. § 2252(a)(4). The district court
sentenced him to six years of prison and a lifetime term of supervised release.
       Carpenter challenges the length of supervised release, as well as several
special conditions imposed by the district court. Carpenter also contends that
the written judgment should be amended because it conflicts in certain


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-51212
respects with the oral pronouncement at sentencing. We uphold the lifetime
term of supervised release and the challenged conditions, but remand so the
district court can conform the written judgment to its original rulings.
                                            I.
      Because Carpenter did not object to the length or conditions of his
supervised release in the district court, we review for plain error. See United
States v. Warren, 720 F.3d 321, 332 (5th Cir. 2013). To establish reversible
plain error, Carpenter must show a forfeited error that is clear and obvious
and that affects his substantial rights. Puckett v. United States, 556 U.S. 129,
135 (2009). Even if he can do so, we may correct the error only if it seriously
affected the fairness, integrity, or public reputation of the proceeding. Id.
                                            II.
      Carpenter first argues that the district court erred by imposing a lifetime
term of supervised release because, in his words, he “merely possessed child
pornography (i.e., never produced or distributed it) and never engaged in any
violent conduct.” 1 We disagree. A rebuttable presumption of reasonableness
applies to a sentence that—like the term of supervised release the district court
imposed in this case—falls within the guidelines range. United States v. Cooks,
589 F.3d 173, 186 (5th Cir. 2009). Carpenter offers no compelling rebuttal to
this presumption, and his reliance on United States v. Alvarado, 691 F.3d 592
(5th Cir. 2012), is misplaced. Unlike in Alvarado, there is no indication in this
case that the district court “automatically defaulted to the imposition of a
lifetime term.” Id. at 598. The record demonstrates that the district court
considered the facts and circumstances of Carpenter’s case, noted his limited
criminal history, and found that Carpenter committed a “serious crime,” even


      1 Carpenter fails to explicitly state whether he is challenging the procedural or
substantive reasonableness of the length of his supervised release. His arguments suggest a
substantive reasonableness challenge, and the court analyzes his claim as such.
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                                   No. 13-51212
if he did not produce or distribute the child pornography he admittedly
possessed.   The court also considered Carpenter’s need for mental health
treatment and the need to protect the public and potential victims. The district
court did not abuse its discretion, let alone plainly err, in imposing a lifetime
term of supervised release.
                                       III.
      Carpenter also challenges the following special conditions of his
supervised release that prohibit him from: (1) “associat[ing] with any child . . .
under the age of 18, except in the presence and supervision of an adult
specifically designated in writing by the probation officer;” (2) “residing or
going places where . . . minors are known to frequent without prior approval of
the probation officer;” (3) “us[ing] any computer (whether or not equipped with
a modem or access to the internet) at any location (whether or not at his place
of employment, residence, or elsewhere) without the prior written permission
of his probation officer” or “possess[ing] or us[ing] a phone with access to the
internet;” and (4) “purchasing, possessing, or using any sexually stimulating
or sexually oriented materials.”
      Although a sentencing court has broad discretion in imposing conditions
of supervised release, the conditions must be reasonably related to:
      (1) the nature and circumstances of the offense and the history and
      characteristics of the defendant, (2) the need to afford adequate
      deterrence to criminal conduct, (3) the need to protect the public
      from further crimes of the defendant, and (4) the need to provide
      the defendant with needed training, medical care, or other
      correctional treatment in the most effective manner.

United States v. Ferguson, 369 F.3d 847, 852 (5th Cir. 2004) (internal quotation
marks, alterations, and citations omitted); see also 18 U.S.C. §§ 3553(a)(1)–(2),
3583(d). The conditions must also be narrowly tailored such that they do not
involve a “greater deprivation of liberty than is reasonably necessary” to fulfill

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                                  No. 13-51212
the purposes set forth in Section 3553(a). See United States v. Rodriguez, 558
F.3d 408, 412 (5th Cir. 2009) (internal quotations omitted).
      Carpenter argues that under this court’s recent holding in United States
v. Duke, 788 F.3d 392 (5th Cir. 2015), a lifetime ban prohibiting him from
associating with children or residing or going places where minors are known
to frequent is plainly erroneous. Duke held that an absolute lifetime ban on
contact with children was unreasonably broad and not narrowly tailored. Id.
at 403; see also United States v. Scott, No. 15-30516, slip op. at 11-14 (5th Cir.
April 19, 2016) (vacating lifetime bans on computer and internet access and
contact with minors and noting that district court could modify the bans to
reduce their duration or condition them on probation-officer approval). Here,
however, Carpenter may associate with minors or reside or go places where
minors are known to frequent as long as he has the prior approval of his
probation officer. See Rodriguez, 558 F.3d at 416 (finding that restriction
prohibiting the defendant from interacting with minors except with approval
of the probation officer was not overly broad when defendant was sentenced to
only three years of supervised release). This distinction precludes a finding of
plain error.
      Carpenter also claims that the “association” restrictions are not
reasonably related to his history and characteristics because he never
“inappropriately communicated with any child” or had any “harmful physical
contact with anyone.” But the presentencing report (“PSR”) as well as other
information before the district court revealing concerns about Carpenter’s
interactions with children show that these special conditions were reasonably
related to Carpenter’s history and characteristics, the need to afford adequate
deterrence, and the need to protect the public.
      The same connection to the statutory sentencing factors exists for the
special condition imposed on Carpenter’s computer and phone usage.
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                                     No. 13-51212
Carpenter’s offense involved using computers and the internet to download
child pornography. This condition thus directly relates to the nature and
circumstances of Carpenter’s offense. Moreover, the ban against computer
usage is not absolute, but merely requires written permission from Carpenter’s
probation officer.
       Although the restriction on Carpenter’s possession or use of a phone with
internet access is absolute, we do not find it unduly burdensome. Carpenter
argues that, in light of today’s technology, this restriction will make it
impossible for him to find a phone. But Carpenter fails to cite any evidence
supporting his contention, nor did he object to this condition at sentencing. 2
We find no plain error.
       Carpenter also fails to demonstrate plain error with respect to the
prohibition against sexually stimulating or sexually oriented materials.
Carpenter cites cases from other circuits in support of his argument that this
ban is vague and overly broad.            But this court has held that under a
“commonsense reading,” a supervised release condition precluding the
possession of sexually oriented or sexually stimulating materials was not
impermissibly vague. See United States v. Phipps, 319 F.3d 177, 193 (5th Cir.
2003).
       For these reasons, the lower court did not plainly err in imposing the
challenged conditions.
                                           IV.
      Finally, Carpenter argues that conflict exists between the oral
pronouncement at sentencing and the written judgment.                     Because of a
defendant’s constitutional right to be present at sentencing, when the written


       2The court notes that, to the extent technology changes and Carpenter can adequately
demonstrate his inability to obtain a phone that does not have internet access, he may seek
modification of this condition.
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                                       No. 13-51212
judgment conflicts with the oral pronouncement at sentencing, the oral
pronouncement controls. United States v. Bigelow, 462 F.3d 378, 380–81 (5th
Cir. 2006).
       The judgment includes two special conditions that the district court did
not orally impose. The first requires Carpenter to “participate in the computer
restriction/monitoring program.” The second applies if Carpenter is required
to register under the Sex Offender Registration and Notification Act and
requires him in that event to submit to a search of “his person and any
property, house, residence, vehicle, papers, computer, other electronic
communication or data storage devices or media, and effects at any time” if
there is a “reasonable suspicion” that he violated a condition of his supervised
release. Because these requirements are more burdensome than any similar
standard conditions 3 that do not need to be announced at sentencing, the lack
of oral pronouncement is problematic. See Bigelow, 462 F.3d at 383. We
remand to the district court with instruction that these conflicting conditions
be removed from the written judgment.
       Carpenter also addresses a condition with the opposite problem: it was
imposed at the sentencing hearing but not included in the judgment.                         It
involves a prohibition on owning or possessing any type of camera,
photographic device, and/or other electronic equipment, including video
recording equipment, without approval of his probation officer. Carpenter
argues its absence from the judgment could cause confusion. Finding that a
conflict exists between the oral pronouncement and the written judgment, we



       3  There is no standard condition requiring participation in the computer
restriction/monitoring program. There is, however, a standard condition related to searches.
The standard search condition requires Carpenter to permit a probation officer to visit him
at any time and confiscate any contraband observed in plain view of the probation officer. By
contrast, the special condition at issue requires Carpenter to submit to searches of his person
as well as numerous items based only on a standard of reasonable suspicion.
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                               No. 13-51212
remand to the district court and instruct that the written judgment be
conformed to the oral pronouncement and include this condition.
                                   * * *
     We AFFIRM Carpenter’s sentence of lifetime supervised release and the
challenged special conditions. We REMAND so that the written judgment may
be conformed to the oral pronouncement at sentencing.




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