     Case: 11-41070     Document: 00511926517         Page: 1     Date Filed: 07/19/2012




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

                                                                            FILED
                                                                            July 19, 2012
                                     No. 11-41070
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JOHN CRAIG ZIMMERMAN,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:07-CR-232-1


Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
        John Craig Zimmerman, federal prisoner # 71281-179, entered a plea of
nolo contendere in 2007 to enticing a minor to engage in sexually explicit
conduct for the purpose of producing a visual depiction of such conduct, receiving
child pornography, and possessing child pornography. He was sentenced to a
total of 300 months of imprisonment and a life-term of supervised release.
        Zimmerman appealed, challenging only the district court’s denial of his
motion to suppress evidence obtained from his work computer and his residence.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-41070   Document: 00511926517      Page: 2   Date Filed: 07/19/2012

                                  No. 11-41070

United States v. Zimmerman, 303 F. App’x 207, 209 (5th Cir. 2008). He did not
appeal his sentence or challenge the terms and conditions of his supervised
release. This court affirmed the district court’s judgment. Id. at 207-10.
      Zimmerman, proceeding pro se, now appeals the denial of his motion to
modify his term of supervised release and various special conditions of his
supervised release pursuant to 18 U.S.C. § 3583(e).
      Although Zimmerman did not object to the conditions of his supervised
release at sentencing or challenge the conditions on direct appeal, we do not
decide whether his claims should be reviewed for plain error because he is not
entitled to relief even under the less deferential abuse of discretion standard.
See United States v. Insaulgarat, 289 F. App’x 738, 740-41 (5th Cir. 2008)
(holding that the district court’s denial of Insaulgarat’s request for a
modification did not constitute an abuse of discretion without deciding if a
stricter standard applied). A district court has authority to modify conditions of
supervised release under § 3583(e)(2) “at any time prior to the expiration or
termination of the term of supervised release,” or to terminate a term of
supervised release, after the expiration of one year of supervised release, under
§ 3583(e)(1).
      Under the plain language of § 3583(e)(1), the district court had no
authority to consider Zimmerman’s challenge to the length of his supervised
release term. Zimmerman, who is scheduled to be released from prison on
December 18, 2028, has not yet served one year of supervised release. See
§ 3583(e)(1).
      Further, Zimmerman cannot challenge the legality or constitutionality of
the special conditions of his supervised release in a § 3583(e)(2) motion. See
United States v. Hatten, 167 F.3d 884, 886 (5th Cir. 1999). Accordingly, he has
failed to demonstrate that the district court erred in denying his claims insofar
as he sought modification of conditions on constitutional grounds.



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                                 No. 11-41070

      In addition to raising constitutional claims not cognizable in a § 3583(e)
motion, Zimmerman contends that certain conditions are not reasonably related
to the goals of deterrence or public safety and impose a greater deprivation of
liberty than necessary.     Those factors can be considered by a court in
determining whether to modify conditions of supervised release pursuant to
§ 3583(e)(2).
      However, Zimmerman is still serving his term of imprisonment and has
not been subjected to the conditions of supervised release. Arguably, any
challenge to the conditions is premature or unripe. “Ripeness separates those
matters that are premature because the injury is speculative and may never
occur from those that are appropriate for judicial review.” United States v.
Carmichael, 343 F.3d 756, 761 (5th Cir. 2003) (internal quotation marks and
citation omitted). Thus, a claim is not ripe “if it rests upon contingent future
events that may not occur as anticipated, or indeed may not occur at all.” Id.
(internal quotation marks and citation omitted).
      Zimmerman’s challenge to the special condition requiring polygraphs and
psycho-physiological testing is speculative and rests “upon contingent future
events that may not occur as anticipated.” See id. (internal quotation marks and
citation omitted). Zimmerman is not prejudiced, however, from filing a motion
to modify this condition after the commencement of his term of supervised
release.
      Further, although his challenge to the special condition prohibiting
internet access also rests on contingencies that may not occur and may be
effected by changing technology, Zimmerman has failed to show that the district
court abused its discretion in denying his motion based on that challenge.
Zimmerman used the internet to access child pornography, and the district court
found that restricting access to the internet was “reasonably related both to the
seriousness of his offense and to preventing him from committing that offense
again.” Zimmerman has shown no error with this finding.

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                                 No. 11-41070

      Finally, even if Zimmerman’s challenge to special conditions restricting
him from having contact with or being in proximity to people under the age of
18 without obtaining written approval from a probation officer is not premature,
this court has upheld, on direct appeal, challenges to similar restrictions on
associations with minors, see United States v. Paul, 274 F.3d 155, 165 (5th Cir.
2001), and Zimmerman has not demonstrated that the conditions imposed in his
case warrant modification under § 3583(e)(2).
      Accordingly, the judgment of the district court is AFFIRMED.




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