     Case: 17-40374      Document: 00514689941         Page: 1    Date Filed: 10/19/2018




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

                                      No. 17-40374                              FILED
                                                                         October 19, 2018
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk

              Plaintiff - Appellee

v.

DANIEL MELTON,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:16-CR-585-1


Before HIGGINBOTHAM, DENNIS, and COSTA, Circuit Judges.
PER CURIAM:*
       Daniel Melton was found guilty after a jury trial of attempted coercion
and enticement of a minor in violation of 18 U.S.C. § 2422(b).                         He was
sentenced to 120 months of imprisonment and 25 years of supervised release,
including a special condition prohibiting him from accessing the Internet,
“except for reasons approved in advance by the probation officer.” On appeal,
Melton contends that the district court reversibly erred by commenting on the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-40374
evidence during jury instructions, and argues that the condition restricting his
Internet access is unreasonably restrictive and should be modified or amended.
For the reasons discussed below, we AFFIRM Melton’s conviction and AFFIRM
the special condition of supervised release, subject to the interpretation that
he is not required to seek prior approval each individual time he accesses the
Internet.
                                         I
      In March 2016, Daniel Melton posted the following advertisement on
Craiglist:
      Late 30s male seeking younger female that wants to be daddy’s
      girl. Would love a young teen that needs to be trained or has little
      experience. If you want to be a daddy’s girl respond with pics and
      some information about yourself. Put daddy as a subject to weed
      out spam.
An undercover Homeland Security Investigation Special Agent, Autumn West,
responded to Melton’s ad. West’s first communication with Melton read: “My
name is Nicole and my daughter[’]s name is Kacie. Lucky for you, we[’]re an
incest family looking for an addition. Let me know.” Over the course of the
next two weeks, Melton and “Nicole” exchanged electronic correspondence
almost every day via Yahoo messenger, email, and text messages. Throughout
these conversations, “Nicole” made it clear to Melton that “Kacie” was a
fourteen-year-old girl in the eighth grade. Melton frequently and directly
expressed his interest in performing a variety of explicit sexual acts with both
“Kacie” and “Nicole,” and “Nicole” responded with enthusiasm. At one point,
Melton sent “Nicole” a picture of his penis and then exchanged messages
directly with West as “Kacie,” asking her what she thought of it and discussing
in explicit detail having her “play” with it.
      Melton and “Nicole” arranged to meet at a Taco Bell, where Melton was
promptly arrested upon arrival. Melton admitted to placing the advertisement

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                                 No. 17-40374
and confirmed that he was the one who sent the explicit messages in question
to “Nicole” and “Kacie.” He confessed that he believed he was meeting a real
mother and her minor daughter, and stated that he had “fucked up.” The
defendant also told the officers that he had not originally sought an underage
girl when he placed the Craigslist ad, and that by “young teen” he had meant
an eighteen or nineteen-year-old interested in role playing.
      Melton was charged with “knowingly attempt[ing] to persuade, induce,
entice, and coerce an individual who defendant believed had not attained the
age of 18 years, to engage in sexual activity for which a person can be charged
with a criminal offense under the laws of the State of Texas, namely, the crime
of sexual assault of a child.” 18 U.S.C. § 2422(b). At trial, Melton relied
primarily on the defense of entrapment, alleging that he was not predisposed
to commit the crime of enticing a minor until “Nicole” invited him to join her
and “Kacie’s” incestuous activities.       At Melton’s request and over the
Government’s objection, the district court provided the jury with the Fifth
Circuit’s pattern jury instruction on entrapment:
      [I]f a person has no previous intent or purpose to violate the law,
      but he then is induced or persuaded by law enforcement officers to
      commit the crime, that person is a victim of entrapment. And the
      law forbids a conviction there. . . . On the other hand, if a person
      . . . does already have the readiness and willingness to break the
      law, the mere fact that the government agents provide him with
      what appears to be a favorable opportunity is not entrapment.”
      Earlier in the jury instructions, the district court also made a comment
that Melton challenges here on appeal. In explaining to the jury that it must,
in order to convict, find that the defendant enticed someone whom he believed
was under the age of 18, the district court made the following statement:
      So—and here, that’s why the Government in producing the case—
      the suggestion was and what the agent was offering was a child.
      But the ad itself, as I recall the wording, you’re going to have it
      there, also, suggested a desire for a minor. But that’s the point. It
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                                   No. 17-40374
      has to be a minor—the case has to involve somebody under the age
      of 18. And there was stuff about a soccer game and the 8th grade.
      And I think a thing about 14 years old, but anyway. That’s why
      all of that is in there. (emphasis added).
Melton did not object to this statement at trial.
      The jury subsequently found Melton guilty. At sentencing, the district
court imposed 120 months of imprisonment, 25 years of supervised release,
and a $1,500 fine.         Consistent with the recommendations in Melton’s
presentence report (PSR), the district court also imposed several special
conditions of supervised release including, inter alia, a condition prohibiting
him from accessing the Internet, “except for reasons approved in advance by
the probation officer.”
                                         II
      Unpreserved objections to the district court’s comments to the jury are
reviewed for plain error. United States v. Inocencio, 40 F.3d 716, 728–29 (5th
Cir. 1994). Under this standard of review, Melton must establish a forfeited
error that is clear or obvious and that affected his substantial rights. Puckett
v. United States, 556 U.S. 129, 135 (2009). If he satisfies the first three prongs
of the plain error analysis, we have the discretion to correct the error if it
“seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. (cleaned up).
      Preserved challenges to special conditions of supervised release are
reviewed for abuse of discretion. United States v. Caravayo, 809 F.3d 269, 272
(5th Cir. 2015). If challenges are not raised in the district court, review is for
plain error only. See Puckett, 556 U.S. at 135.
                                        III
      Melton argues that the district court’s comment during jury instructions
that Melton’s Craiglist ad “suggested a desire for a minor” caused him serious
prejudice and thus was reversible error.          As Melton concedes, he did not
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                                 No. 17-40374
contemporaneously object to the district court’s comment. Accordingly, we
review for plain error only.
      A trial judge is not limited to abstract instructions but may explain and
comment on the evidence, draw attention to evidence which he thinks
important, and express his opinion of facts, “provided he makes it clear to the
jury that all matters of fact are submitted to their determination.” Quercia v.
United States, 289 U.S. 466, 469 (1933). “While the trial court may under no
circumstances withdraw any element of an offense from the jury’s
consideration in a criminal case, the judge may comment on the evidence, so
long as he instructs the jury that they are not bound by his comments.”
Inocencio, 40 F.3d at 729.
      Even if a judge’s comments do not effectively withdraw an element of the
offense from the jury’s consideration, they “may also be error if they seriously
prejudice the defendant.” E.g., id. We evaluate the instructions to the jury “as
a whole, without isolating statements which may appear prejudicial outside
the context in which they were made.” United States v. Gomez-Rojas, 507 F.2d
1213, 1223 (5th Cir. 1975). Comments that “distort or add to” the evidence are
more likely to be prejudicial than those that state uncontradicted facts. See
Inocencio, 40 F.3d at 730–31; United States v. Canales, 744 F.2d 413, 434 (5th
Cir. 1984); United States v. Blevins, 555 F.2d 1236, 1240 (5th Cir. 1977).
      Melton contends here that the district court’s comment added to or
distorted the evidence. However, even assuming arguendo that the district
court did clearly or obviously err in its comment to the jury, Melton cannot
demonstrate that it affected his substantial rights. Though the district court
commented on an issue that Melton contested—whether the ad “suggested a
desire for a minor”—we cannot conclude that the verdict would have been
different otherwise. See Canales, 744 F.2d at 434 (finding no serious prejudice
from judge’s challenged comment to the jury because there was “no meaningful
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                                     No. 17-40374
possibility that the verdict would have been otherwise had the now complained
of comment not been made.”) The jury had substantial evidence that Melton
was predisposed to commit the crime of enticement. Melton’s conversations
with “Nicole” and “Kacie” showed that he had a clear interest in having sexual
relations with “Kacie” from the first mention of her. 1             Further, Melton’s
argument that the reference to a “young teen” in the advertisement meant, in
fact, an older teen, is simply not very persuasive. Because the district court’s
comment therefore did not amount to reversible plain error, we affirm Melton’s
conviction.
                                           IV
      Melton next argues that the district court abused its discretion by
imposing a condition of supervised release prohibiting him from “access[ing]
the Internet except for reasons approved in advance by the probation officer.”
He contends this condition is unreasonably restrictive because it requires him
to request permission every time he needs to access the Internet, and he
requests that it be remanded to the district court to modify or amend so that it
is not construed in such a manner.
                                            A
      Though the Government contends that Melton failed to preserve an
objection to this condition, its argument is without merit. “In order to preserve
an argument for appeal, it must be raised to such a degree that the district
court has an opportunity to rule on it.” United States v. Brown, 884 F.3d 281,




      1  Though his responses to “Nicole” do not conclusively prove that having sex with a
child was his original intent and purpose, his rapid and eager responses that repeatedly
focused on “Kacie” can certainly constitute evidence that sex with a child was his primary
interest from the beginning.
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284 (5th Cir. 2018). Our review of the record demonstrates that the district
court was clearly on notice of the defendant’s objection.
      Defense counsel began the discussion about this condition by saying:
      We have some concerns about the conditions. We understand the
      mandatory conditions that – we have no quarrel with that. We would
      also, again, ask that the Court note our objection – or clarification is what
      we’d like. For example, for Internet use. The condition of Internet use
      as approved by the probation office. It sounds like a reasonable thing,
      but we would ask -- a notation in there that it is presumed that any
      legitimate Internet use is preapproved, for example.
The court then responded: “Well, that wouldn’t work . . . that’s just saying do
anything you want to.”      After additional discussion about the scope and
appropriateness of the condition, the district court imposed the condition at
issue without modification. Defense counsel responded: “Again, we just ask
the Court to . . . note our objection to that.” Further, defense counsel again
referenced this objection later at sentencing, noting “we know that the Court
has noted our objections to the two prongs, the Internet access and the . . . Sex
Offender Treatment after he comes out.” (emphasis added).
      It is clear that the district court was on notice of the specific content of
the defendant’s objection and not only had the opportunity to rule on it, but in
fact did so. Accordingly, we review the challenged condition of supervised
release for abuse of discretion. See United States v. Caravayo, 809 F.3d 269,
272 (5th Cir. 2015).
                                        B
      Melton challenges a special condition of his supervised release
prohibiting him from accessing the Internet “except for reasons approved in
advance by the probation officer.” Conditions of supervised release must be
reasonably related to the following statutory factors:
      (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
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                                     No. 17-40374
      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. Paul, 274 F.3d 155, 164–65 (5th Cir. 2001) (cleaned up); see 18
U.S.C. § 3583(d); 18 U.S.C. § 3553(a)(1)–(2). Additionally, “supervised release
conditions cannot involve a greater deprivation of liberty than is reasonably
necessary to achieve the latter three statutory goals.” Paul, 274 F.3d at 165;
see § 3583(d)(2). Melton does not argue that the condition is not reasonably
related to the statutory factors; instead, he contends that the condition is
“unreasonably restrictive” under § 3583(d)(2).
      We have routinely upheld special conditions of supervised release
similar to Melton’s. See United States v. Ellis, 720 F.3d 220, 225 (5th Cir.
2013); United States v. Miller, 665 F.3d 114, 124, 132-34 (5th Cir. 2011); Paul,
274 F.3d at 169–70. However, Melton does not request that we vacate the
condition entirely. Instead, he requests that it be modified or amended “so that
it is not construed or enforced in such a manner that Mr. Melton would be
required to seek prior approval of the probation officer every single time he
must access the Internet.”
      In support, Melton cites to United States v. Sealed Juvenile, 781 F.3d
747, 756 (5th Cir. 2015). In that case, we addressed a substantially similar
condition prohibiting the appellant from “us[ing] a computer with access to any
‘on-line computer service’ at any location without the prior written approval of
the probation officer.” Id. at 755. As we noted in Sealed Juvenile: “We must
recognize that access to computers and the Internet is essential to functioning
in today’s society. The Internet is the means by which information is gleaned,
and a critical aid to one’s education and social development.” Id. at 756. 2



      2See also United States v. Duke, 788 F.3d 394, 400 (5th Cir. 2015) (“The ubiquity and
importance of the Internet to the modern world makes an unconditional, lifetime ban
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Therefore, we concluded that the condition was unreasonably restrictive “[t]o
the extent [it] require[d] [the appellant] to request permission . . . every time he
needs to access the Internet,” and affirmed the condition subject to our
interpretation that approval for each instance of Internet access was not
required. Id.
       We find that a similar result is warranted here. From the record before
us, it is not clear whether Melton’s condition as written would require a
separate pre-use approval by his probation officer every single time he accesses
the Internet, as Melton claims it does, or only requires preapproval for
categories of use, as the Government contends.                        As Sealed Juvenile
demonstrates, an otherwise permissible condition limiting Internet access can
be unreasonably restrictive if given the more austere of these two
interpretations. Accordingly, as in that case, we affirm Melton’s condition
subject to the interpretation that “prior approval” does not require that he
obtain individual approval from his probation officer for each specific instance
of Internet use. See id.
                                               V
       For these reasons, we affirm Melton’s conviction and affirm the condition
of supervised release restricting his Internet access subject to the above
interpretation.




unreasonable. Although this court has not found the Internet to be so integral to modern life
that a district court may not restrict its use, it has observed, along with many sister circuits,
that computers and the Internet have become significant and ordinary components of modern
life as we know it.” (citations omitted)).
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