     Case: 11-50112     Document: 00511820992         Page: 1     Date Filed: 04/13/2012




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

                                                                            FILED
                                                                           April 13, 2012
                                     No. 11-50112
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

SETH DAVIDSON HILLIKER,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:10-CR-382-1


Before BENAVIDES, STEWART, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        Seth Davidson Hilliker pleaded guilty to an indictment charging him with
failure to register under the Sex Offender Registration and Notification Act
(SORNA). See 18 U.S.C. § 2250(a). The district court sentenced Hilliker to 40
months of imprisonment (with credit for the 10 months already served), to be
followed by 20 years of supervised release. As part of the special conditions of
supervised release, the district court ordered that Hilliker be denied all access
to computers, the internet, cameras, photographic equipment, and other

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-50112    Document: 00511820992      Page: 2   Date Filed: 04/13/2012

                                  No. 11-50112

electronic equipment without the permission of his probation officer, and that
he not purchase or possess any sexually oriented material. Hilliker appeals
those special conditions of his supervised release. He argues (1) that the special
condition banning him from computer and internet access fails to comply with
statutory requirements and compromises substantial liberty interests, (2) that
the special condition banning him from possessing photographic devices and
electronic equipment is not reasonably related to supervised release goals, and
(3) that the special condition banning him from possessing sexually oriented or
sexually stimulating materials is overly broad and fails to meet due process
notice requirements.
      Hilliker objected at sentencing to “any conditions” that did not relate to the
sentencing factors and were not clearly defined to achieve the goals of
sentencing. This objection was not specific enough to preserve his arguments
regarding the ban on computer and internet access or the ban on sexually
oriented and sexually stimulating materials. See United States v. Miller, 665
F.3d 114, 134 (5th Cir. 2011); United States v. Mondragon-Santiago, 564 F.3d
357, 361 (5th Cir. 2009). Although he sufficiently preserved his challenge to the
ban on photographic devices and electronic equipment, he did not preserve the
specific challenge to the meaning of “electronic equipment.” See Miller, 665 F.3d
at 134; Mondragon-Santiago, 564 F.3d at 361. Accordingly, his argument
regarding the ban on photographic devices is reviewed for abuse of discretion,
and his remaining arguments are reviewed for plain error. See Miller, 665 F.3d
at 134; United States v. Rodriguez, 558 F.3d 408, 412 & n.3 (5th Cir. 2009).
      Ban on Computer and Internet Access
      The predicate offense that led to Hilliker’s SORNA requirements was his
2008 conviction for attempted indecency with a child by contact. In June 2007,
the father of the victim reported that Hilliker fondled the buttocks of his four-
year old daughter while he and his daughter were shopping at a book store. In
another, unrelated 2007 incident, Hilliker was reported because he had twice

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                                  No. 11-50112

fondled the buttocks of a 10-year-old female inside a thrift store. In 2003, a state
trooper responded to a report of Hilliker grabbing young girls in a Kohl’s
department store in Sunset Valley, Texas. In 1998, Hilliker was charged in
Durham, New Hampshire, with loitering and prowling and indecent exposure
and lewdness. In 1995, Hilliker was charged with misdemeanor criminal
trespassing when he was found inside a middle school without permission. At
sentencing in the instant case, the district court relied heavily on Hilliker’s
fugitive background and evasions of law enforcement, as well as its finding that
Hilliker was a “predator” who had repeatedly engaged in direct physical contact
with minor children, and in part, on a letter from Hilliker in which Hilliker
stated that internet pornography was a factor in clouding his judgment
regarding the propriety of touching or fondling young girls in public places.
Based on the record before this court, the district court did not commit plain
error by imposing near absolute restrictions on computer and internet access.
See Miller, 665 F.3d at 132.
      Ban on Photographic Equipment and Electronic Devices
      Given the admitted connection between Hilliker’s viewing of photographic
images of pornography and his touching and fondling of young girls, as well as
his admitted “thrill” from approaching children in difficult-to-detect ways and
his history of evading law enforcement supervision, Hilliker’s history supports
this condition of supervised release. See, e.g., Miller, 665 F.3d at 134. The
district court did not abuse its discretion in imposing this condition. See id.
      In Miller, this court specifically rejected Hilliker’s argument that “other
electronic equipment” extends to items beyond cameras and other photographic
equipment, such as television, DVDs, and MP3 players. See id. at 134-35. The
district court’s imposition of this ban was not error, much less plain error. Id.
      Ban on Sexually Oriented and Sexually Stimulating Materials
      As already noted, Hilliker admitted in a letter to the court that internet
pornography was a factor that clouded his judgment regarding the propriety of

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                                 No. 11-50112

touching and fondling young girls in public places. The presentence report
indicates that Hilliker engaged in sexually oriented criminal conduct perhaps as
early as 1995 and certainly as early as 2003. Based on the record before this
court, a ban on sexually oriented and sexually stimulating material is within the
parameters of special conditions of supervised release that are reasonably
related to affording adequate deterrence to criminal conduct and protecting the
public from further crimes of the defendant. See Miller, 665 F.3d at 136; United
States v. Paul, 274 F.3d 155, 164-65 (5th Cir. 2001); 18 U.S.C. §§ 3553(a),
3583(d)(1). Thus, even under an abuse-of-discretion standard, Hilliker could not
prevail. See Miller, 665 F.3d at 136. Moreover, because the law is unsettled
regarding   First   Amendment     overbreadth    challenges,   Hilliker   cannot
demonstrate error that is plain because such an error must be clear under
existing law. See Miller, 665 F.3d at 136. Unsettled law also precludes a
showing of plain error on Hilliker’s due process argument that the ban on
sexually oriented and sexually stimulating material fails to provide sufficient
notice of what items he is banned from possessing. Miller, 665 F.3d at 136-37.
      Although the district court did not have the benefit of our decision in
Miller, the analysis there is comprehensive. We note that because presentence
investigation reports rarely list proposed supervised release special conditions,
the parties must be vigilant to raise specific concerns when conditions are
imposed. Although Miller’s history of predatory behavior connected directly to
the use of electronic equipment, Hilliker both admitted to the connection
between the internet and his predatory behavior and repeatedly evaded law
enforcement supervision—two factors that may warrant more extensive
supervised release oversight. Finally, Title 18, Section 3583(e), as well as
Fed. R. Crim. P. 32.1(c), contemplate ongoing judicial review, termination, or
modification of stringent supervised realize terms which is apt for terms that
extend far into the future yet necessarily must adjust as technology changes.
      AFFIRMED.

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