             Case: 16-10669     Date Filed: 01/18/2017   Page: 1 of 10


                                                             [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 16-10669
                             Non-Argument Calendar
                           ________________________

                      D.C. Docket No. 2:03-cr-14068-DLG-1



UNITED STATES OF AMERICA,
                                                                  Plaintiff-Appellee,

                                      versus

JOSEPH POIGNANT,

                                                              Defendant-Appellant.

                           ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         ________________________

                                (January 18, 2017)

Before TJOFLAT, JULIE CARNES and JILL PRYOR, Circuit Judges.

PER CURIAM:

      Poignant pled guilty to using a computer to persuade, induce, entice, and

coerce a minor to engage in sexual activity in violation of 18 U.S.C. § 2422(b).
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The district court sentenced Poignant to sixty months’ imprisonment, followed by

ten years of supervised release. The court imposed the standard conditions of

supervision as well as several special conditions. Joseph Poignant appealed his

special condition of supervised release prohibiting him from buying, selling,

exchanging, possessing, trading, or producing visual depictions of minors or adults

engaged in sexually explicit conduct, reimposed after he violated the conditions of

his supervised release for the second time. On appeal, Poignant argued that the

district court abused its discretion in imposing this supervised release condition.

He contended that the record did not support the imposition of this condition

because the underlying offense did not involve adult pornography. He also stated

that the condition constituted a greater-than-necessary deprivation of his

constitutional liberties. Upon review of the record and consideration of the parties’

briefs, we affirm.

      We typically review the imposition of special conditions of supervised

release for abuse of discretion. United States v. Taylor, 338 F.3d 1280, 1283 (11th

Cir. 2003). Under this standard of review, we refrain from reversing unless we

have a “definite and firm conviction that the district court committed a clear error

of judgment in the conclusion it reached.” Id. (brackets and quotation omitted).

However, where a defendant fails to clearly articulate the grounds for an objection

to a condition of supervised release in the district court, we only review the


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imposition of the condition for plain error. United States v. Carpenter, 803 F.3d

1224, 1237–38 (11th Cir. 2015). Under plain-error review, we have the discretion

to correct an error where (1) an error occurred; (2) the error was plain; and (3) the

error affects substantial rights. United States v. Olano, 507 U.S. 725, 732–36

(1993). An error is plain when “contrary to explicit statutory provisions or to on-

point precedent in this Court or the Supreme Court.” United States v. Hoffman,

710 F.3d 1228, 1232 (11th Cir. 2013) (quotation omitted).

      A district court may order special conditions of supervised release so long as

each condition: (1) is reasonably related to the nature and circumstances of the

offense, history, and characteristics of the defendant, the need for adequate

deterrence, the need to protect the public, and the need to provide the defendant

with necessary medical care, training, or correctional treatment in an effective

manner; (2) involves no greater deprivation of liberty than is reasonably necessary

to accomplish the goals of deterrence, protecting the public, and rehabilitation; and

(3) is consistent with any pertinent policy statements issued by the Sentencing

Commission. 18 U.S.C. § 3583(d)(1)–(3); see 18 U.S.C. § 3553(a)(1), (2)(B)–(D).

Each relevant § 3353(a) factor need not support a special condition; rather, each

factor is weighed as an independent consideration. United States v. Tome, 611

F.3d 1371, 1376 (11th Cir. 2010). While a condition of supervised release “should

not unduly restrict a defendant’s liberty, a condition is not invalid simply because


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it affects a probationer’s ability to exercise constitutionally protected rights.” Id.

(quotation omitted).

      This Court once before reviewed a condition of supervised release barring

sexually explicit material in a published opinion, although only for plain error.

United States v. Carpenter, 803 F.3d 1224, 1237 (11th Cir. 2015). In Carpenter,

the defendant was convicted of possessing child pornography. 803 F.3d at 1230,

1239–40. We held that the district court did not plainly err in imposing as a

condition of supervised release that the defendant not access “depictions of minors

or adults engaged in sexually explicit conduct.” Id. Because the issue was not

properly preserved at the district court and no controlling authority from this Court

or the Supreme Court established that the district court erred in imposing the

condition, we stated that we “need not, and do not, decide whether the court indeed

erred.” Id. at 1238–39.

      Though we have not reviewed special conditions banning sexually explicit

material for abuse of discretion, we previously addressed whether conditions in

other circumstances amounted to an abuse of discretion for being unrelated to the

sentencing factors or entailing a greater deprivation of liberty than necessary. This

Court vacated a supervised release condition that we held as so vague and broad

that a court could not determine if it met the statutory requirements. See United

States v. Ridgeway, 319 F.3d 1313, 1316–17 (11th Cir. 2003) (discussing the


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factors in imposing special conditions of supervised release under U.S.S.G. §

5D1.3(b), which mirrors the relevant language in 18 U.S.C. § 3553(a)). In

Ridgeway, the district court convicted the defendant of possessing an unregistered

firearm. 319 F.3d at 1314. As a condition of supervised release, the court ordered

the defendant to “refrain from conduct or activities that would give reasonable

cause to believe [he] violated any criminal law.” Id. at 1314. The court vacated

the condition because it proscribed a range of behavior so broad it was inherently

vague, and a court could not determine if the condition reasonably related to the

sentencing factors or entailed no greater deprivation of liberty than necessary. Id.

at 1316–17.

      This Court previously upheld conditions relating to the sentencing factors

where the prohibited activity was central to the defendant’s offense. See Taylor,

338 F.3d at 1284–85. In Taylor, the district court convicted a defendant of using

the internet to transmit information about a minor with the intent to encourage

others to engage in criminal sexual activity with the minor. Id. at 1285–86. On

appeal, we upheld a special condition prohibiting the defendant from using or

possessing a computer with internet access. Id. This Court held that the district

court did not abuse its discretion in imposing the condition because the enabled the

defendants crime and the defendant capitalized on the effectiveness of the internet

as a tool to commit the crime and reach pedophiles. Id.


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      Here, while Poignant objected to the adult pornography condition at the

most recent revocation hearing, he failed to object to or appeal the same condition

when it was imposed at his initial sentencing and at the revocation hearing

following his first violation of supervised release. Although Poignant is now

subject to a new sentence, his arguments regarding the special condition focus not

on whether it was appropriate to reimpose the condition, but whether the condition

was initially appropriate given the underlying offense conduct. This Court has not

addressed the proper standard of review for the reimposition of special conditions

to which the defendant failed to object when initially imposed. Although it is

unclear whether this Court should review the district court’s imposition of this

special condition for plain error or abuse of discretion, it need not decide which

standard of review applies because Poignant’s claim fails under both the plain error

and less-deferential abuse-of-discretion standard.

      If the issue was not properly preserved and plain error review applies, there

is no controlling precedent from either the Supreme Court or Eleventh Circuit

indicating the impropriety of imposing a prohibition on possessing visual

depictions of adults engaged in sexually explicit conduct as a condition of

supervised release for a defendant convicted of enticement of a minor. Hoffman,

710 F.3d at 1232; see Carpenter, 803 F.3d at 1240–41 (rejecting a challenge to a

special condition prohibiting depictions of adults engaged in sexually explicit


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conduct and noting that there can be no plain error on this issue, as there is a circuit

split and no binding precedent). Thus, the district court is affirmed under plain

error review.

      If Poignant properly preserved the issue and the abuse of discretion standard

applies, Poignant failed to demonstrate that the district court abused its discretion

in prohibiting him from viewing, possessing, or producing visual depictions of

adults engaged in sexually explicit conduct. As an initial matter, the Eleventh

Circuit does not require the district court to articulate specific reasons for

reimposing a particular condition. See Taylor, 338 F.3d at 1283. Furthermore, the

record indicates that a prohibition against depictions of adults engaged in sexually

explicit conduct is reasonably related to the nature and circumstances of the

offense, the need to protect the public, and the need to rehabilitate the defendant.

See 18 U.S.C. §§ 3583(d)(1), 3553(a)(1), 2(C)–(D). This Court has indicated that

cases involving children or child pornography are distinct from cases with records

void of abusing or possessing pornography in the past or in the commission of the

offense. See Carpenter, 803 F.3d at 1240. Although Poignant’s conviction, unlike

that in Carpenter, does not directly involve child pornography or actual abuse of a

child, the record provides evidence that the condition is reasonably related to

several relevant § 3553(a) factors.




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      First, while the specific charge to which Poignant pled guilty, enticement of

a minor, did not involve child pornography or actual contact with a child, the

presentence report indicated that Poignant intended to have sex with a child,

provided evidence that Poignant molested his then-ten-year-old daughter, and that

his computer contained twenty to twenty five images of child pornography.

Second, the report and recommendation (R&R) issued concerning Poignant’s first

violation of supervised release stated that the probation officer discovered Poignant

accessed various “swinger dating sites” and a website called

“teenhardmovies.com” via the internet, resulting in his discharge from the sex

offender treatment program in which he participated. The R&R also indicated that

the probation officer testified that the type of internet activity in which Poignant

engaged was similar to the type of internet activity leading him to commit the

crime for which he was convicted. Third, Poignant admitted at the most recent

revocation hearing before the district court that his access to certain content on the

internet led, at least in part, to his offense conduct. Both he and his attorney

acknowledged that Poignant was a sex addict in need of help controlling his

thoughts and conduct. Finally, the district court noted before reimposing the

conditions of supervised release that while the specific violations of supervised

release did not involve children, they nonetheless involved conduct similar to his

underlying offense, which did involve children. Taking all of this into


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consideration, like the use of the internet in Taylor, Poignant’s sexual experiences

with adult pornography are not merely incidental to his offense conduct. Taylor,

338 F.3d at 1285.

      Poignant’s condition does not involve a greater deprivation of liberty than

necessary to accomplish goals of deterrence, protecting the public, and

rehabilitation. While the condition unquestionably affects Poignant’s ability to

possess and produce constitutionally protected speech, the record indicates that the

restriction is warranted. The condition here does not rise to the level of vagueness

that warrants vacating because a court could not determine if it met the statutory

requirements. See Ridgeway, 319 F.3d at 1316–17. Moreover, this Court

distinguished a special condition barring depictions of “adults engaged in sexually

explicit conduct” from conditions expressly prohibiting possession of

“pornography,” which other circuits struck down as vague. See Carpenter, 803

F.3d at 1240.

      Here, the relevant portion of the condition does not contain broad language

barring all pornography, but is specific to “visual depictions of minors or adults

engaged in sexually explicit conduct.” Although this language sweeps some

constitutionally protected speech within its purview, “a condition is not invalid

simply because it affects a probationer’s ability to exercise constitutionally

protected rights.” Tome, 611 F.3d at 1376 (quotation omitted). While such a


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condition might involve a greater-than-necessary deprivation of free speech

liberties in a case where there was little or no connection between pornography and

the defendant’s underlying conduct, see Voelker, 489 F.3d at 151–53, Poignant’s

experiences with adult pornography are linked to his sexual interest in children.

      Accordingly, because the special condition was reasonably related to the

relevant § 3553(a) factors, and because the special condition did not unnecessariy

impinge upon Poignant’s constitutional rights, the district court did not abuse its

discretion in imposing as a special condition of supervised release that Poignant

refrain from viewing, possessing, or producing visual depictions of adults engaged

in sexually explicit conduct. We affirm Poignant’s special condition of supervised

release.

      AFFIRMED.




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