     Case: 18-60158      Document: 00514726879         Page: 1    Date Filed: 11/16/2018




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

                                                                                FILED
                                    No. 18-60158                        November 16, 2018
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JAMES MOWERY,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 2:08-CR-6-1


Before DAVIS, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM: *
       The district court revoked James Mowery’s supervised release from his
conviction for possessing child pornography after Mowery admitted to violating
the special condition prohibiting him from possessing or using an Internet
connection device except with prior approval and in connection with authorized
employment. Mowery was sentenced to 11 months of imprisonment and five
additional years of supervised release, in relation to which the district court


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 18-60158     Document: 00514726879     Page: 2   Date Filed: 11/16/2018


                                  No. 18-60158

reimposed the same Internet-access special condition. On appeal, Mowery
argues that the Internet-access condition involves a greater deprivation of
liberty than is reasonably necessary to fulfill the purposes of 18 U.S.C.
§ 3553(a) because it is not sufficiently tailored as to scope or duration. Because
Mowery did not raise this issue in the district court, we review the district
court’s decision for plain error. See Puckett v. United States, 556 U.S. 129, 135
(2009).
      Although district courts have “wide discretion in imposing terms and
conditions of supervised release,” that discretion “is limited by 18 U.S.C.
§ 3583(d), which provides that a court may impose special conditions of
supervised release only when the conditions meet certain criteria.” United
States v. Paul, 274 F.3d 155, 164 (5th Cir. 2001). Relevantly, “supervised
release conditions cannot involve a greater deprivation of liberty than is
reasonably necessary” to achieve the sentencing goals of § 3553(a). Id. To that
end, restrictions on Internet use must be “narrowly tailored either by scope or
by duration.” United States v. Duke, 788 F.3d 392, 399 (5th Cir. 2015).
      Mowery cites no authority holding the Internet-access condition imposed
here or a materially identical condition to be unreasonable in either scope or
duration. “That lack of binding authority is often dispositive in the plain-error
context.” United States v. Gonzalez, 792 F.3d 534, 538 (5th Cir. 2015). To the
contrary, we have upheld both absolute but temporally limited Internet bans
and less-than-absolute bans imposed for significantly longer periods.         See
Duke, 788 F.3d at 399; see, e.g., United States v. Miller, 665 F.3d 114, 126-34
(5th Cir. 2011); Paul, 274 F.3d at 159-70. The restriction on Mowery’s Internet
access is neither absolute nor indefinite. See Duke, 788 F.3d at 399. Insofar
as Mowery contends that the additional authorized-employment restriction
makes the condition here more onerous, he cites no binding precedent to that



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                                  No. 18-60158

effect. See Gonzalez, 792 F.3d at 538; United States v. Garcia-Rodriguez, 415
F.3d 452, 456 (5th Cir. 2005). Finally, his reliance on Packingham v. North
Carolina, 137 S. Ct. 1730, 1733-38 (2018), is misplaced because “Packingham
does not – certainly not ‘plainly’ – apply to the supervised-release context.” See
United States v. Halverson, 897 F.3d 645, 658 (5th Cir. 2018).
      At best, Mowery shows that the propriety of the Internet-access
condition in this case is subject to reasonable dispute. See Puckett, 556 U.S. at
135. “By definition, that is not plain error.” United States v. Broussard, 669
F.3d 537, 550 (5th Cir. 2012). The judgment is AFFIRMED.




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