     Case: 16-50136      Document: 00514031600         Page: 1    Date Filed: 06/13/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                      No. 16-50136                                 FILED
                                                                               June 13, 2017

UNITED STATES OF AMERICA,                                                     Lyle W. Cayce
                                                                                   Clerk
              Plaintiff - Appellee

v.

JAMES ALLEN CARAVAYO,

              Defendant - Appellant




                  Appeals from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:05-CR-1581-1


Before REAVLEY, HAYNES, and COSTA, Circuit Judges.
PER CURIAM:*
       James Allen Caravayo previously challenged a special condition of
supervised release absolutely prohibiting him from dating anyone with
children under the age of eighteen.            He prevailed.      See United States v.
Caravayo, 809 F.3d 269 (5th Cir. 2015). We ordered resentencing but indicated
that the special condition may yet be proper depending on the findings made
by the sentencing judge on remand. Id. at 276. On remand, 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 16-50136
struck the dating restriction altogether and instead required that if “the
defendant begins to date anyone with children under the age of 18, he must
immediately notify the probation officer.” Caravayo again appeals.
                               BACKGROUND
      Caravayo pleaded guilty to possession of child pornography in violation
of 18 U.S.C. § 2252, served a prison sentence, and is now on supervised release.
In 2014, his supervised release was revoked due to a Texas misdemeanor
conviction. At the revocation hearing, the district court imposed a 90-day
sentence and re-imposed all prior conditions of supervised release. Caravayo,
however, successfully appealed from Special Condition Six, which prohibited
him from “dat[ing any] women/men who have children under the age of
eighteen.” We ruled in Caravayo’s favor “[b]ecause the district court made no
specific factual findings” establishing that the condition “was reasonably
related to one of the four factors under [18 U.S.C.] § 3553(a), and because the
record d[id] not clearly substantiate such a relationship.” Id. at 275.
      While that appeal was pending, Caravayo was busy violating the terms
of his supervised release. Most notably, he used the Internet to access a
website ostensibly geared toward the “nudist” lifestyle—a website that
included images of nude children as well as adults. The district court was
aware of this violation when it held the revocation hearing on remand. While
it struck Special Condition Six entirely, it imposed the special condition now
challenged on appeal.     This “notice condition” was appended to Special
Condition One and requires Caravayo to immediately inform his probation
officer if he begins dating anyone with children under the age of eighteen.
                                DISCUSSION
                                       I
      As amended, Special Condition One now requires that “[i]n the event
that the defendant begins to date anyone with children under the age of 18, he
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                                 No. 16-50136
must immediately notify the probation officer.” Caravayo notes disagreement
regarding what it means, in common parlance, to date someone. He contends
the term is therefore impermissibly vague and ambiguous—that it does not
afford him fair notice of what conduct is required, or prohibited. In the first
appeal on this matter, however, he made no objection whatsoever to that very
same word, which also appeared in the prior Special Condition Six—“date.”
Special Condition Six presented the same (supposed) risk; it prohibited
Caravayo from dating certain people but did not separately define what it
meant to date.
      When an argument is not made on appeal and is thus waived, that
waiver applies to any subsequent appeal. Lindquist v. City of Pasadena Texas,
669 F.3d 225, 239 (5th Cir. 2012). “The doctrine promotes procedural efficiency
and ‘prevents the bizarre result that a party who has chosen not to argue a
point on a first appeal should stand better as regards the law of the case than
one who had argued and lost.’” Id. at 239–40 (quoting Nw. Indiana Tel. Co. v.
F.C.C., 872 F.2d 465, 470 (D.C. Cir. 1989)). This rule applies here.
      Our prior opinion did not establish the law of the case because it did not
decide (either expressly or “by necessary implication”) whether there was any
constitutional problem with a special condition that is triggered when the
defendant begins to “date.” See In re Felt, 255 F.3d 220, 225 (5th Cir. 2001)
(quoting Browning v. Navarro, 887 F.2d 553, 556 (5th Cir. 1989)). But the fact
of this second appeal does not provide Caravayo an opportunity to make an
argument that he should have made in the first appeal. Appeals taken from a
defendant’s resentencing on remand must be limited to new issues that
materialized at resentencing and cannot raise an argument that should have
been presented in the first appeal.




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                                 No. 16-50136
                                       II
      To the extent Caravayo challenges the notice condition as being
unsupported by the record, we review only for an abuse of discretion. United
States v. Huor, 852 F.3d 392 (5th Cir. 2017).
     [S]uch conditions must be reasonably related to one of the
     following statutory factors: (i) the nature and circumstances of the
     offense and the history and characteristics of the defendant; (ii) the
     need to afford adequate deterrence to criminal conduct; (iii) the
     need to protect the public from further crimes of the defendant;
     and (iv) the need to provide the defendant with needed training,
     medical care, or other correctional treatment in the most effective
     manner.
United States v. Salazar, 743 F.3d 445, 451 (5th Cir. 2014) (citing 18 U.S.C.
§ 3553(a)(1)–(2)).
      And they “cannot involve a ‘greater deprivation of liberty than is
reasonably necessary’ to achieve the statutory goals.” Id. (quoting United
States v. Paul, 274 F.3d 155, 165 (5th Cir. 2001)).
      According to Caravayo, the notice condition is not reasonably related to
the statutory factors and unduly interferes with his First Amendment rights,
especially given that he is already prohibited from unsupervised contact with
minors.
      The notice condition clearly relates to the first three statutory factors—
the history and characteristics of the defendant coupled with the nature and
circumstance of his offense, deterrence of criminal conduct, and protection of
the public. We find the relation reasonable. It is essentially conceded that
Caravayo is a sick man who should be kept far from children. Thus he does
not challenge the conditions prohibiting him from “unsupervised contact with
any child under age 18” and from loitering near places where children are
likely to be found. The notice condition directly aids the probation office in
ensuring that Caravayo does not harm children, both by alerting the probation

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                                 No. 16-50136
officer to particular children within Caravayo’s social orbit and by affording
the officer an opportunity to advise at-risk persons of Caravayo’s criminal
background.
      Moreover, based on the record, Caravayo is either unrepentant or beyond
help. While the defendant’s counsel was diligently advocating on his behalf
during the prior appeal, Caravayo was violating conditions of his supervised
release by viewing images of nude children on the Internet. The record shows
that the district court is very worried about the risks Caravayo poses as a
member of society. The sentencing judge has seen and spoken with this man
and knows far more about him than we do. We are not inclined to second-guess
the district court’s views on Caravayo, but even if we were, such second-
guessing is inappropriate. United States v. Heard, 709 F.3d 413, 435 (5th Cir.
2013).
      We reject Caravayo’s argument that the notice condition is redundant
and therefore necessarily unnecessary. It is true that the condition prohibiting
“unsupervised contact” with minor children is also intended to keep Caravayo
from harming children, but a sentencing court is within its discretion to seek
a worthy ends through multiple means. United States v. Pennington, 606 F.
App’x 216, 223 (5th Cir. 2015).      Caravayo also contends that the notice
condition is uncalled for because he has never exploited a dating relationship
to prey upon children. But we dismiss the idea that a harm must befall the
public before sentencing courts are empowered to protect against that harm.
And the argument is particularly unpersuasive here, where the parties seem
to agree on the propriety of sentencing conditions that keep Caravayo away
from children. Again, the notice condition is simply another reasonable means
of promoting that goal.
      Finally, we reject Caravayo’s First Amendment-related arguments. In
Caravayo, we noted that the absolute dating restriction might be warranted on
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                                  No. 16-50136
remand. 809 F.3d at 275. The district court has stricken the dating restriction
entirely and replaced it with a notice condition. Assuming that the notice
condition interferes with Caravayo’s right to free association, the interference
is minimal and “reasonably necessary in light of the nature and circumstances
of [his] offense and the legitimate need to prevent recidivism and protect the
public.” Paul, 274 F.3d at 167.
                                  CONCLUSION
      For the foregoing reasons, Caravayo’s sentence is AFFIRMED.




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