                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4344


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

GREGORY ALAN HAYES,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Columbia. Joseph F. Anderson, Jr., District
Judge. (3:09-cr-00250-JFA-1)


Submitted:   November 19, 2010            Decided:   December 10, 2010


Before WILKINSON, KING, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Parks N. Small, Federal Public Defender, Aileen P. Clare,
Research and Writing Specialist, Columbia, South Carolina, for
Appellant. William N. Nettles, United States Attorney, Dean A.
Eichelberger, Assistant United States Attorney, Columbia, South
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Pursuant       to     a   plea       agreement,        Gregory          Alan       Hayes

pleaded guilty to accessing child pornography via the Internet

with    intent       to     view       it,     in       violation         of        18     U.S.C.A.

§ 2252A(a)(5)(B)          (West      Supp.     2010).            Because       of        his    prior

Pennsylvania convictions for sexual abuse, the district court

sentenced     Hayes       to     the   statutory          mandatory        minimum             of   120

months’      imprisonment,         see       18        U.S.C.    § 2252A(b)(2)                 (2006),

followed by a lifetime of supervised release.

             On    appeal,       Hayes       asserts       his    guilty       plea        was      not

knowing      or      voluntary;          that           his      sentence           is         grossly

disproportionate to his criminal conduct; and that the term of

supervised        release      and     the        condition        that        he        submit     to

“physiological       and       psychological            testing     to     determine            [his]

sexual orientation and patterns of arousal” are unreasonable.

For    the   reasons      that    follow,         we    reject    Hayes’        arguments           and

affirm.

                                              I.

             Hayes     first       asserts        that     his    guilty       plea        was      not

knowing and voluntary, under either Federal Rule of Criminal

Procedure 11 or due process, because the Government failed to

specifically identify the prior conviction it intended to rely

upon to support an enhanced sentence.                            Because Hayes did not

raise this issue in the district court and did not move to

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withdraw his guilty plea on this basis, we will review this

claim for plain error.            See United States v. Vonn, 535 U.S. 55,

59 (2002); United States v. Massenburg, 564 F.3d 337, 342 (4th

Cir. 2009) (stating standard of review for unpreserved Rule 11

error).       To establish plain error, Hayes “must show:                             (1) an

error   was    made;     (2)   the         error   is     plain;    and   (3)   the    error

affects substantial rights.”                   Massenburg, 564 F.3d at 342-43.

To demonstrate impact on his substantial rights, Hayes must show

that, but for the errors, he would not have pled guilty.                                 See

United States v. Martinez, 277 F.3d 517, 532 (4th Cir. 2002).

Even    if    such    error      is    found,        it    is    within    this      court’s

discretion to notice the error, and we will do so “only if the

error     seriously      affects       the     fairness,         integrity      or    public

reputation of judicial proceedings.”                        Massenburg, 564 F.3d at

343 (internal quotation marks omitted).

              The standard for determining whether a guilty plea is

constitutionally         valid        is     whether       the     plea   “represents      a

voluntary and intelligent choice among the alternative courses

of action open to the defendant.”                    North Carolina v. Alford, 400

U.S. 25, 31 (1970); see Burket v. Angelone, 208 F.3d 172, 190

(4th Cir. 2000).         Such an evaluation requires us to examine “the

totality      of   the   circumstances             surrounding      the   guilty      plea.”

Burket, 208 F.3d at 190.



                                               3
               Hayes      cannot        demonstrate             any     error,        plain    or

otherwise,          in   the    court     finding         his    plea    was     knowing      and

voluntary and accepting his guilty plea.                              During his Rule 11

plea colloquy, the Government stated for the record its position

that       Hayes’     prior     convictions         for    sexual       abuse    of    children

qualified him for the recidivist enhancement set forth in 18

U.S.C.A.       § 2252A(b)(2). *           In   addition          to   complying        with   the

mandates of Rule 11, the district court advised Hayes at least

three times that, if he had a qualifying prior conviction, he

faced      a   statutory       mandatory       minimum      ten-year       sentence.          The

court specifically questioned Hayes to ensure he understood the

potential       applicability        of    this      provision.           Accordingly,         we

reject Hayes’ challenge to the knowing and voluntary nature of

his guilty plea.

                                               II.

               Hayes     next     asserts      that       his    120-month       sentence      is

grossly disproportionate to his offense conduct and his criminal

history,        and      thus     violative          of     the       Eighth      Amendment’s

       *
       Hayes suggests that he should have received notice similar
to that which is mandated by 21 U.S.C. § 851 (2006), but offers
no authority to support this argument.         To the contrary,
however, the Eleventh Circuit has specifically rejected this
argument.   See United States v. Smith, 459 F.3d 1276, 1298-99
(11th Cir. 2006) (conducting plain error review, court rejected
defendant’s contention that due process demanded additional
notice of the enhanced statutory minimum applicable due to his
prior qualifying offense). We similarly reject this contention.



                                                4
prohibition on cruel and unusual punishment.                                  This court has

previously held that “proportionality review is not available

for     any    sentence        less     than      life    imprisonment          without      the

possibility of parole.”                 United States v. Ming Hong, 242 F.3d

528, 532 (4th Cir. 2001) (citing United States v. Polk, 905 F.2d

54, 55 (4th Cir. 1990)).                     As one panel of this court cannot

either       explicitly        or    implicitly        overrule        this    valid    circuit

precedent, see United States v. Lighty, 616 F.3d 321, 380 (4th

Cir. 2010), we decline to review the proportionality of Hayes’

sentence.

                                               III.

               Finally,        Hayes    challenges        both    the     duration      of   his

supervised release term and the special condition imposed upon

him.     Hayes first argues the district court failed to explain

its reasons for imposing a lifetime term of supervised release.

We    review    this      issue      for     plain     error   because        Hayes    did   not

present any argument for a lesser term in the district court.

See United States v. Lynn, 592 F.3d 572, 576-78 (4th Cir. 2010).

               “The length of [Hayes’] term of supervised release is

part    of    his    sentence        and     is   reviewed       for    reasonableness[,]”

United States v. Daniels, 541 F.3d 915, 921 (9th Cir. 2008),

cert.    denied,         129    S.     Ct.    1600      (2009),    using       an     abuse-of-

discretion standard of review.                        See Gall v. United States, 552

U.S.     38,        51    (2007).             This      review         requires       appellate

                                                  5
consideration       of        both      the        procedural          and         substantive

reasonableness of a sentence.                Gall, 552 U.S. at 51.

           Here,       the    court      elected        to     impose        the     statutory

maximum term of lifetime supervised release, which was the term

recommended       by      the        Guidelines.                 See         18       U.S.C.A.

§ 2252A(a)(5)(A);        18    U.S.C.      § 3583(k)         (2006);    U.S.        Sentencing

Guidelines    Manual     §    5D1.2(b),        p.s.     (2009).         Hayes        correctly

identifies, though, that the district court did not explain this

decision, focusing its explanation instead on the reasons for

the 120-month term of imprisonment.

           The     Supreme      Court        has    clearly      mandated          sentencing

courts to “adequately explain” their sentences “to allow for

meaningful appellate review and to promote the perception of

fair sentencing.”         Gall, 552 U.S. at 50.                 Even if the district

court   committed      procedural       error      in   this     case,       we     hold    this

error did not affect Hayes’ substantial rights.                              To reiterate,

defense counsel did not rely on any of the statutory sentencing

factors to advocate for a term of supervised release below the

lifetime   term     authorized        by     statute     and     recommended           by    the

Guidelines.       Accordingly,          Hayes      cannot      demonstrate           that    the

district     court’s     failure        to    explain        this      decision       “had     a

prejudicial effect on the sentence imposed.”                        Lynn, 592 F.3d at

580; see also United States v. Hernandez, 603 F.3d 267, 272-73

(4th Cir. 2010).

                                              6
            Hayes     next    contends     the    supervised        release     term    is

substantively unreasonable.               The Supreme Court has authorized

appellate courts to afford a presumption of reasonableness to a

within-Guidelines          sentence.      Gall,    552     U.S.   at    51;    see    also

United States v. Raby, 575 F.3d 376, 381 (4th Cir. 2009).                            We do

so here, holding the district court’s decision to impose the

within-Guidelines          term   of   supervised    release      is    presumptively

reasonable, and that the duration of this term is insufficient

to rebut that presumption.

            Finally, Hayes argues the requirement that he submit

to sexual testing is substantively unreasonable.                            As with his

other     arguments     on    appeal,     Hayes     did     not     object     to     this

condition    in   the      district     court,    limiting    the      scope    of    this

court’s review to plain error.

            “District courts have broad latitude with regard to

special    conditions        of   supervised      release,    and      we    review    the

[district] court’s decision to impose a condition of supervised

release for an abuse of discretion.”                  United States v. Holman,

532 F.3d 284, 288 (4th Cir.) (internal quotation marks omitted),

cert. denied, 129 S. Ct. 522 (2008).                Any such special condition

must be “reasonably related” to the factors set forth in 18

U.S.C.    § 3583(d)(1)        (2006),    which     include:         “the     nature    and

circumstances         of      the      offenses      and      the       history        and

characteristics of the defendant; providing adequate deterrence;

                                           7
protecting the public from further crimes; and providing the

defendant with training, medical care, or treatment.”                                    United

States v. Dotson, 324 F.3d 256, 260 (4th Cir. 2003) (internal

quotation marks and citations omitted).

            Circuit          authority       supports           the    district         court’s

requirement       that       Hayes    submit       to    testing       to   determine       his

arousal patterns.             See id. at 261.               Further, although Hayes

advances    that       the     district      court       abused       its   discretion       in

requiring   him     to       submit    to   testing        to    determine        his    sexual

orientation, he cites no authority to support that proposition.

Accordingly,      we     cannot       say   the    imposition          of   this    condition

constitutes an abuse of discretion.

            For    these       reasons,      we     affirm       the    district        court’s

judgment.      We dispense with oral argument because the facts and

legal    contentions         are     adequately         presented      in   the     materials

before   the    court        and     argument      would    not       aid   the    decisional

process.

                                                                                     AFFIRMED




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