     Case: 14-10641      Document: 00512944162         Page: 1    Date Filed: 02/23/2015




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

                                    No. 14-10641
                                                                                   Fifth Circuit

                                                                                 FILED
                                  Summary Calendar                        February 23, 2015
                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                        Clerk


                                                 Plaintiff-Appellee

v.

TERRY ANDREW NELSON,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Northern District of Texas
                             USDC No. 4:04-CR-90


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
       The district court revoked Terry Andrew Nelson’s supervised release
because he violated a condition of his supervision that prohibited him from
viewing sexually explicit material.           Nelson appeals the above-guidelines
sentence imposed.        He also contends that the district court committed
reversible plain error when it reimposed the same condition that warranted
revocation, Special Condition No. 5, which requires that he “neither possess


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-10641

nor have under his control any pornographic, sexually oriented, or sexually
stimulating materials, including visual, auditory, telephonic, or electronic
media, computer programs, or services,” that he “not patronize any place where
such material or entertainment is available,” and that he “not use any sex-
related telephone numbers.” Nelson argues that the district court failed to set
forth factual findings to justify the imposition of Special Condition No. 5, that
Special Condition No. 5 is not reasonably related to the statutory supervised
release factors, that Special Condition No. 5 restricts his liberty interests more
than is reasonably necessary to achieve the statutory goals, and that Special
Condition No. 5 is impermissibly vague. Because Nelson did not object to the
reimposition of Special Condition No. 5 at the revocation hearing, his
arguments are reviewed for plain error. See United States v. Weatherton, 567
F.3d 149, 152 (5th Cir. 2009).
      The district court’s reasons for reimposing Special Condition No. 5 can
be inferred from the record. Cf. United States v. Salazar, 743 F.3d 445, 451–
53 (5th Cir. 2014). Moreover, even if we were to conclude that the district
court’s explanation was inadequate and that the district court’s error was clear
or obvious, Nelson cannot show that the error affected his substantial rights
because nothing in the record suggests that the outcome would have been
different if the court had provided more extensive reasons. See United States
v. Tang, 718 F.3d 476, 483 (5th Cir. 2013).
      Nelson’s contention that Special Condition No. 5 is not reasonably
related to the statutory factors and that it restricts his liberty interests more
than is reasonably necessary to achieve the statutory goals is also belied by the
record.   Nelson’s 2004 presentence report detailed his history of sexually
deviant and disturbing behavior. At the revocation hearing, Nelson admitted
that he had a sexual addiction which required “constant accountability.” He



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                                 No. 14-10641

acknowledged that he struggled with this addiction and that it was “a life-long
circumstance.” Notably, Nelson admitted that since his release from custody
he had visited adult pornographic websites 15 to 20 times and, in doing so, he
stumbled onto a website that showed nude children. We have upheld special
conditions prohibiting the possession of sexually oriented or sexually
stimulating materials under similar circumstances. See United States v. Ellis,
720 F.3d 220, 227 (5th Cir.), cert. denied, 134 S. Ct. 681 (2013); United States
v. Miller, 665 F.3d 114, 135-36 (5th Cir. 2011). Moreover, we have repeatedly
rejected vagueness challenges to similar supervised release conditions
concluding that they provide adequate notice of the prohibited behavior
because they are to “be read in a commonsense way.” United States v. Phipps,
319 F.3d 177, 193 (5th Cir. 2003); see Ellis, 720 F.3d at 226–27; Miller, 665
F.3d at 137. Therefore, Nelson has failed to show that the district court
committed reversible plain error when it re-imposed Special Condition No. 5
following the revocation of his supervised release.
      Nelson also contends that the above-guidelines revocation sentence is
unreasonable. He argues that the district court failed to adequately explain
the sentence and that the court either completely disregarded his extensive
mitigation evidence or was mistaken regarding the facts of his case. Because
Nelson did not object to the adequacy of the district court’s explanation for the
chosen sentence or to the reasonableness of the sentence, our review is limited
to plain error. See United States v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir.
2009).
      The record reflects that the district court sufficiently articulated its
reasons for imposing the above-guidelines revocation sentence. See United
States v. Kippers, 685 F.3d 491, 498–99 (5th Cir. 2012). The district court
considered the recommended imprisonment range of three to nine months, the



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                                   No. 14-10641

two-year statutory maximum term of imprisonment, the nature and
circumstances of Nelson’s supervised release violation, Nelson’s history and
characteristics, the need to deter Nelson’s criminal conduct, the need to protect
the public from any further crimes by Nelson, and Nelson’s mitigation
arguments. The district court ultimately concluded that an 18-month term of
imprisonment followed by an additional 18 months of supervised release was
appropriate based on the circumstances of the case and the permissible 18
U.S.C. § 3553(a) factors.     We have routinely upheld revocation sentences
exceeding the recommended range, even where the sentence is the statutory
maximum. United States v. Warren, 720 F.3d 321, 332 (5th Cir. 2013). The
fact that we “might reasonably have concluded that a different sentence was
appropriate is insufficient to justify reversal of the district court.” Id. (internal
quotation marks and citation omitted). Because Nelson has failed to show that
his revocation sentence is plainly unreasonable or plainly erroneous, see id. at
326, 332–33, the district court’s judgment is AFFIRMED.




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