     Case: 12-60609         Document: 00512305413        Page: 1     Date Filed: 07/12/2013




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

                                                                              FILED
                                                                             July 12, 2013

                                        No. 12-60609                         Lyle W. Cayce
                                                                                  Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee
v.

FRANK C. KROFT,

                                                   Defendant-Appellant



                     Appeal from the United States District Court
                       for the Northern District of Mississippi
                                    1:11-CR-99-1


Before HIGGINBOTHAM, OWEN, and GRAVES, Circuit Judges.
PER CURIAM:*
       Frank C. Kroft pleaded guilty to failing to register as a sex offender1 under
the Sex Offender Registration and Notification Act (SORNA). See 18 U.S.C. §
2250(a). Kroft was sentenced to eighteen months imprisonment and seven years
of supervised release. The district court also ordered five special conditions of
supervision. On appeal, Kroft asserts that the district court erred in ordering
three of the special conditions, as follows:

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
       1
           Kroft had a 1998 conviction from Indiana for child molestation.
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                                  No. 12-60609

             3. The defendant shall participate in a program of mental
      health treatment, and/or a specifically designed program to address
      sex offender treatment which may include polygraph examinations,
      as directed by the probation officer, until such time as the defendant
      is released from the program by the probation officer.
             4. The defendant shall have no direct or indirect contact with
      any children under the age of 18, unless accompanied and
      supervised by an adult, who has been approved in advance by the
      probation officer. The defendant shall immediately report any
      unauthorized contact with children to the probation officer.
             5. The defendant shall not go to places were (sic) minors are
      known to frequent, including but not limited to, any recreational,
      leisure, sporting, or other activity where children are present and/or
      where supervision is deemed inadequate, without the prior approval
      of the probation officer. The defendant shall not affiliate with, own,
      control, volunteer and/or be employed by an organization in an
      activity which would place him in direct contact with children under
      the age of 18.
      Kroft did not object to the conditions, so we review for plain error. Puckett
v. United States, 556 U.S. 129, 135 (2009). To show plain error, Kroft must show
an error that is clear or obvious and that affects his substantial rights. Id. If
Kroft makes such a showing, this court has the discretion to correct the error if
it seriously affects the fairness, integrity, or public reputation of the judicial
proceedings. Id. See also United States v. Weatherton, 567 F.3d. 149, 152 (5th
Cir. 2009).
      Kroft asserts that the district court procedurally erred by imposing these
conditions. First, he argues that the court imposed these conditions because it
wrongly believed that failure to register is a sex offense. Even if true, treating
failure to register as a sex offense is not plain error. See U.S.S.G. § 5D1.2 cmt.
1 (expressly "not including" certain offenses other than failure to register);
compare United States v. Zelders, 440 F. App'x 699, 701 (11th Cir. 2011), with
United States v. Allen, 2013 WL 1197756 (2d Cir. Mar. 26, 2013). Second, he
argues that because the Guidelines do not recommend conditions 4 and 5 (even


                                        2
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                                        No. 12-60609

for sex offenses), the district court erred by imposing them. This argument lacks
force; a district court may impose conditions of release not suggested by the
Guidelines. See Weatherton, 567 F.3d at 152–53. Thus, Kroft has failed to
establish plain, procedural error.
      However, pursuant to United States v. Windless, --- F.3d ----, 2013 WL
2627768 (5th Cir. 2013),2 the district court plainly erred in imposing the
substantively unreasonable “no direct or indirect contact” condition four.3
Accordingly, we REVERSE imposition of the “no direct or indirect contact”
condition (as currently phrased) and REMAND for resentencing.




      2
          See United States v. Escalante-Reyes, 689 F.3d 415, 418 (5th Cir. 2012).
      3
       Kroft has not established that conditions three and five are plainly substantively
unreasonable.

                                               3
