     Case: 14-31124         Document: 00513405817          Page: 1     Date Filed: 03/03/2016




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT


                                         No. 14-31124                        United States Court of Appeals
                                                                                      Fifth Circuit

                                                                                    FILED
UNITED STATES OF AMERICA,                                                       March 3, 2016
                                                                               Lyle W. Cayce
                 Plaintiff - Appellee                                               Clerk

v.

JEFFREY GUILLOTTE,

                 Defendant - Appellant




                      Appeal from the United States District Court
                         for the Western District of Louisiana
                                 USDC No. 6:13-CR-51


Before       CLEMENT          and     HAYNES,         Circuit    Judges,      and         GARCIA
MARMOLEJO, District Judge.*
PER CURIAM:**
       Jeffrey Guillotte (Guillotte) pleaded guilty to one count of possession of
child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). The district court
sentenced Guillotte to 60 months of imprisonment, and imposed several
standard and special conditions of supervised release, including a lifetime ban



       *   District Judge of the Southern District of Texas, sitting by designation.
       **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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-31124
on “access to any computer that is capable of internet access.” On appeal,
Guillotte challenges the procedural and substantive reasonableness of his
sentence and the latter special condition. For the reasons stated herein, we
AFFIRM the procedural and substantive reasonableness of Guillotte’s
sentence, VACATE the special condition of supervised release imposing a
lifetime ban on Internet access, and REMAND for resentencing proceedings
consistent with this opinion.
                                            I.
      On September 15, 2014, Guillotte was sentenced to 60 months of
imprisonment after having pled guilty to one count of possession of child
pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). Before departures,
Guillotte’s total offense level at sentencing was 30 and his criminal history
category was I, which resulted in a Guidelines range of 97–120 months after
accounting for the 10-year statutory maximum. Prior to sentencing, Guillotte
filed a sentencing memorandum, detailing his mental health history and
arguments in mitigation, and proposing a community-based sentence.              At
sentencing the district court varied downward to the Government’s
recommendation of 60 months of imprisonment, followed by a lifetime of
supervised release. As one of the special conditions of supervision, the district
court imposed a lifetime prohibition on “access to any computer that is capable
of internet access.”
      After sentencing, Guillotte filed a motion requesting that the district
court clarify why it rejected his mitigation arguments.        The district court
denied the motion after reviewing the contents of the sentencing hearing and
reemphasizing that it had considered all of the materials before it. Guillotte
filed a timely notice of appeal.




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                                 No. 14-31124
                                           II.
      Guillotte first argues that his sentence is both procedurally and
substantively unreasonable. Specifically, Guillotte claims that the district
court committed procedural error by failing to explain why his need for mental
health treatment did not justify a community-based sentence. He further
contends the resulting sentence of 60 months of imprisonment is substantively
unreasonable.
      We review the reasonableness of the sentence imposed for abuse of
discretion, and proceed in two stages. United States v. Mondragon-Santiago,
564 F.3d 357, 360 (5th Cir. 2009). First, the court determines if the district
court made any procedural errors, such as improperly calculating the
Guidelines range, failing to consider the § 3553(a) factors, or failing to
sufficiently explain the chosen sentence. Gall v. United States, 552 U.S. 38, 51
(2007). If there is no procedural error, the court then considers the substantive
reasonableness given the “the totality of the circumstances.” Id.
      To begin, considering the terms of supervised release separately below,
we find no procedural error in Guillotte’s 60-month sentence. Under 18 U.S.C.
§ 3553(c), a sentencing court must state “the reasons for its imposition of the
particular sentence.” For sentences within the Guidelines, little explanation
is necessary; however, when parties present nonfrivolous or legitimate reasons
for departure “the judge will normally go further and explain why he has
rejected those arguments.” Mondragon-Santiago, 564 F.3d at 362 (quoting
Rita v. United States, 551 U.S. 338, 356–57 (2007)). The ultimate goal of this
explanation is to allow for meaningful appellate review. Id. at 360.
      Here, we find that the district court did not fail to adequately explain
Guillotte’s sentence. The record shows that the district court had Guillotte’s
detailed sentencing memorandum before it, which explained his mental health
concerns and other mitigation, and the district court stated it had reviewed the
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                                 No. 14-31124
materials. The district court also heard the Government’s recommendation for
a downward variance to 60 months of imprisonment and Guillotte’s arguments
for community supervision that emphasized his strong support system.
Finally, before sentencing Guillotte the district court referenced the § 3553(a)
factors and explained it had arrived at the sentence based on the seriousness
of the offense, the need to protect the public and avoid unwarranted sentence
disparities, and the Government’s recommendation. Accordingly, the district
judge’s reasoning was clear and no further explanation was required.
Moreover, in the order denying Guillotte’s motion for clarification, the district
court reiterated that it had extensively reviewed the documents submitted by
the defendant and the specific facts of the case prior to imposing the sentence.
      Next, considering the substantive reasonableness of Guillotte’s sentence,
we find no error. A below-Guidelines sentence is entitled to a presumption of
reasonableness. United States v. Simpson, 796 F.3d 548, 557 (5th Cir. 2015);
see id. at 559 (holding defendant failed to rebut the presumption of
reasonableness afforded to his below-guidelines sentence). “The presumption
is rebutted only upon a showing that the sentence does not account for a factor
that should receive significant weight, it gives significant weight to an
irrelevant or improper factor, or it represents a clear error of judgment in
balancing sentencing factors.” United States v. Cooks, 589 F.3d 173, 186 (5th
Cir. 2009). “A defendant’s disagreement with the propriety of his sentence does
not suffice to rebut the presumption . . . .” United States v. Camero-Renobato,
670 F.3d 633, 636 (5th Cir. 2012) (per curiam).
      Here, Guillotte takes issue with the district court’s rejection of his
proposed sentence of community supervision. As explained above, the district
court clearly considered and rejected these arguments while balancing the §
3553(a) factors. Because Guillotte has failed to present any other arguments


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                                  No. 14-31124
beyond disagreement with the propriety of his below-Guidelines sentence, we
hold his sentence is not substantively unreasonable.
                                            III.
      Guillotte also contends that the district court’s special condition
prohibiting him from using any computer capable of Internet access is overly
broad. Because Guillotte did not object to this condition in the district court,
we review for plain error. To show plain error, Guillotte must show an error
that is clear or obvious, and affects his substantial rights. Puckett v. United
States, 556 U.S. 129, 135 (2009). In the ordinary case, a sentencing error
affects a defendant’s substantial rights if it affected the outcome of the
proceedings in the district court. Id. When those elements are shown, the
court has the discretion to remedy the error if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id.
      After Guillotte’s sentencing, this court held in United States v. Duke, 788
F.3d 392 (5th Cir. 2015) (per curiam), that absolute lifetime bans on computer
or Internet access are not permissible, noting that such bans must be “narrowly
tailored either by scope or by duration.”          Id. at 399.   Therefore, as the
Government concedes, the district court committed plain error. See Henderson
v. United States, 133 S. Ct. 1121, 1130–31 (2013) (“[I]t is enough that an error
be plain at the time of appellate consideration . . . .”) (internal quotations
omitted). We conclude that the error affected Guillotte’s substantial rights.
Puckett, 556 U.S. at 135. Under these circumstances, and considering the
agreement of the parties that remand is appropriate, we exercise our discretion
to notice the error, vacate this condition, and remand for resentencing as to the
supervised release conditions.
                                            IV.
      For the reason herein stated, we AFFIRM the procedural and
substantive reasonableness of Guillotte’s sentence, VACATE the lifetime
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Internet ban imposed as a special condition of supervised release, and
REMAND to the district court for resentencing proceedings consistent with
this opinion.




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