                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-4026


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

RUFUS NEELEY,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap. James P. Jones, Chief
District Judge. (2:09-cr-00016-jpj-1)


Submitted:   March 23, 2011                 Decided:   April 1, 2011


Before WILKINSON, AGEE, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Larry W. Shelton, Federal Public Defender, Brian J. Beck,
Assistant Federal Public Defender, Abingdon, Virginia, for
Appellant.   Timothy J. Heaphy, United States Attorney, Jennifer
R. Bockhorst, Assistant United States Attorney, W. Elliott
Hunter,   Third-Year   Law  Student,  Abingdon,   Virginia,  for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Rufus E. Neeley pled guilty in the Eastern District of

Tennessee in 2003 to one count of possession of a firearm by a

convicted     felon,       in   violation     of   18    U.S.C.    § 922(g)      (2006).

Neeley     was     sentenced       to    eighty-seven      months’          imprisonment,

followed by a three-year term of supervised release.                            The U.S.

Court    of      Appeals     for   the    Sixth     Circuit       affirmed      Neeley’s

conviction and sentence in 2004.

              Neeley   requested         to   serve      his   term     of    supervised

release in the Western District of Virginia upon his release

from    prison.        The      U.S.    Probation       Office    in    that    district

informed      Neeley       that    it    would     not     agree       to    accept   his

supervision unless he agreed to a modification of his supervised

release terms to include the Tier III sex offender conditions

set forth in the district court’s Standing Order 07-01.                           Neeley

agreed to the proposed modifications, but would not waive his

right to a hearing on the proposed modifications.                           The district

court held a hearing and upheld all of the Tier III conditions,

except a curfew restriction and conditions limiting Neeley’s use

of a computer and other devices that could be used to access the

Internet.        Neeley appeals the district court’s imposition of the

new conditions.

              On appeal, Neeley first claims that the district court

was without authority to impose new terms of supervised release

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after     his    supervision       was     transferred        from     Tennessee    to

Virginia.       Because the district court’s judgment in Tennessee,

affirmed on appeal, did not include the sex offender conditions,

Neeley contends the imposition of the new terms violated the law

of the case and the Sixth Circuit’s mandate, and the district

court’s    action     does   not     fit       within   any     of    the   recognized

exceptions to the mandate rule.

            Neeley did not preserve this objection in the district

court, and thus we review the claim for plain error.                        See United

States v. Lynn, 592 F.3d 572, 577 (4th Cir. 2010).                      To establish

plain error, Neeley must show:                 (1) there was an error; (2) the

error was plain; (3) the error affected his substantial rights.

United States v. Olano, 507 U.S. 725, 732 (1993).                             Even if

Neeley makes this three-part showing, this court may exercise

its   discretion      to   correct       the    error    only    if    it   “seriously

affects the fairness, integrity or public reputation of judicial

proceedings.”       Id. at 736.

            Our review of the record leads us to conclude that

Neeley    has   not   established         error.        The   district      court   was

expressly authorized by 18 U.S.C. § 3583(e)(2) (2006) to modify

or enlarge the terms of Neeley’s supervised release, and the law

of the case and mandate rules do not invalidate the district

court’s imposition of the new terms.



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             Neeley       next     contends       that   because      the    offense       that

resulted     in      his     term     of    supervised          release        was    not     a

specifically enumerated offense listed in the district court’s

Standing Order, the court’s application of that order to his

offense    of     conviction        violated       his     right   to    procedural         due

process.     The district court conducts proceedings to modify or

enlarge an offender’s supervised release terms pursuant to the

provisions of the Federal Rules of Criminal Procedure relating

to the modification of probation.                   18 U.S.C. § 3583(e)(2).                Fed.

R.   Crim.      P.    32.1(c)       provides        that     “before        modifying       the

conditions of . . . supervised release, the court must hold a

hearing, at which the person has the right to counsel and an

opportunity to make a statement and present any information in

mitigation.”         Here, the district court held a hearing at which

Neeley     testified,        offered       evidence        in   mitigation,          and    was

represented by counsel.               Thus, despite the fact that Neeley’s

offense was not listed in the district court’s Standing Order,

the court’s application of conditions set forth in that order to

Neeley did not violate his right to procedural due process.

             Neeley also argues that the substance of several of

the new conditions violates his right to due process and his

First     Amendment        right    of     association,         and     also    fails       the

requirements         of    the   supervised        release      statute.         “District

courts have broad latitude to impose conditions on supervised

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release,” and so we review such conditions only for abuse of

discretion.        United States v. Armel, 585 F.3d 182, 186 (4th Cir.

2009).       The sentencing court may impose any condition that is

reasonably related to the relevant statutory sentencing factors,

which include: the nature and circumstances of the offense and

the    history      and     characteristics         of    the    defendant,       providing

adequate deterrence, protecting the public from further crimes,

and    providing      the    defendant    with          training,      medical    care,    or

treatment.         Id. at 186.        The sentencing court must also ensure

that the condition involves no greater deprivation of liberty

than is reasonably necessary to afford adequate deterrence, to

protect      the   public     from    further       crimes,       and   to   provide      the

defendant      with       training,     care        or     treatment.            18   U.S.C.

§ 3583(d)(2); United States v. Dotson, 324 F.3d 256, 260-61 (4th

Cir.     2003).       The     conditions       must       also    be    consistent      with

Sentencing         Commission         policy        statements.              18       U.S.C.

§ 3583(d)(3).         A particular restriction does not require “an

offense-specific nexus,” United States v. Perazza-Mercado, 553

F.3d   65,    70    (1st     Cir.    2009),       but    the    sentencing    court     must

explain its decision and its reasons for imposing the chosen

conditions.        Armel, 585 F.3d at 186.

              This court reviews de novo constitutional due process

claims.      United States v. Legree, 305 F.3d 724, 729 (4th Cir.

2000).     Similarly, a condition that restricts fundamental rights

                                              5
must       be    “narrowly     tailored      and    .    .   .   directly     related    to

deterring [the defendant] and protecting the public.”                               United

States v. Crandon, 173 F.3d 122, 128 (3d Cir. 1999).                            However,

if     a    defendant       fails    to   raise     a     particular     constitutional

challenge in the district court, this court reviews the issue

for plain error.              United States v. Mackins, 315 F.3d 399, 408

(4th Cir. 2003).

                 Neeley contends that the terms prohibiting him from

possessing “pornography or erotica” and “sexually oriented or

stimulating           material”     and   from     patronizing      or    entering      any

locations where such material may be accessed are not defined

with sufficient clarity and therefore violate his right to due

process.         He argues that the conditions fail to provide notice

of what materials he may not possess and what locations he may

not patronize or enter.              Neeley did not preserve this objection

in the district court, and thus we review the claim for plain

error.          Our review of the record leads us to conclude that

Neeley      has       not   established   plain     error.        Even   if    we   assume

error, an error is plain only if it runs afoul of well-settled

law.       United States v. Baum, 555 F.3d 1129, 1135-36 (10th Cir.

2009).          Neither this court nor the Supreme Court has addressed

whether         the    challenged    terms    are       constitutional.        Thus,    the

district court’s imposition of these terms does not run afoul of

well-settled law.

                                              6
             Neeley   also   claims    that    these     conditions   are      not

reasonably related to the sentencing factors set forth in 18

U.S.C. § 3583(d)(1) (2006), and involve a greater deprivation of

liberty than reasonably necessary to accomplish the goals of

supervised    release.       Our    review    of   the   record   leads   us    to

conclude that the district court did not abuse its discretion in

imposing these conditions.

             Finally, Neeley argues that the condition prohibiting

him from “form[ing] a romantic interest or sexual relationship

with a person who has physical custody of any child under the

age of eighteen” fails to conform to the requirements of the

supervised release statute, violates his First Amendment right

of association, and violates his due process rights in that it

fails to adequately define the type of conduct that could result

in revocation of his supervised release.                 We have reviewed the

record and conclude that the district court did not abuse its

discretion in imposing this term.            We also find that the term is

narrowly tailored to protect children and to prevent Neeley from

being placed in a compromising situation.                Crandon, 173 F.3d at

128.   The terms of this condition permit Neeley to meaningfully

discern the type of conduct that could result in a revocation of

his supervised release.            See United States v. Paul, 274 F.3d

155,   167    (5th    Cir.   2001)     (stating     that    “[c]onditions       of



                                       7
probation can be written — and must be read — in a commonsense

way.”).

           Accordingly, we affirm the district court’s judgment.

We   dispense   with   oral   argument   because   the   facts   and   legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                                  AFFIRMED




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