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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-20748

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

TIMOTHY ALAN FORTENBERRY,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:07-CR-70-ALL

Before KING, STEWART and HAYNES, Circuit Judges.

PER CURIAM:*

Timothy Alan Fortenberry was convicted by a jury of three counts of

receiving child pornography and one count of possession of child pornography

involving the sexual exploitation of minors. The district court sentenced

Fortenberry to three concurrent terms of 168 months of imprisonment and one

concurrent term of 120 months of imprisonment. The district court also

imposed a lifetime term of supervised release, which included a special condition

United States Court of Appeals

Fifth Circuit

F I L E D

October 26, 2009

Charles R. Fulbruge III

Clerk
No. 08-20748

2

barring Fortenberry from using the internet without prior written permission

from his probation officer. 

Fortenberry elected to represent himself in the district court, and the

district court held a hearing to determine if Fortenberry’s waiver of his right to

counsel was knowing and intelligent. Fortenberry now argues on appeal that

the hearing conducted by the district court was inadequate because the district

court permitted the Government to ask Fortenberry some of the questions that

went to the determination that his waiver was valid.

Pursuant to the Sixth and Fourteenth Amendments, a state criminal

defendant has the right to the assistance of counsel. Faretta v. California, 422

U.S. 806, 807 (1975). However, “the Constitution does not force a lawyer upon

a defendant.” Id. at 814-15 (internal quotation marks omitted). A defendant

maintains the right to represent himself in a criminal trial. Id. at 815, 821. 

In United States v. Davis, 269 F.3d 514, 516-20 (5th Cir. 2001), the case

relied on by Fortenberry for the proposition that the district court erred in

allowing the prosecutor to conduct some of the questions in the Faretta hearing,

the district court conducted an exceedingly brief Faretta hearing in which it

primarily relied on warnings given by counsel, whom the defendant “no longer

trusted.” We concluded that the hearing did not satisfy Faretta. Id. at 520.

Unlike in Davis, the district court questioned Fortenberry at length about

his understanding of the district court’s role in the federal government, the jury

selection and trial process, the risk that he was too intimately involved with the

case to “see[] things from a distance,” the risk that the jury might make certain

conclusions about him based on his decision to represent himself, and the near

impossibility of presenting himself as a witness. The district court admonished

Fortenberry that his decision to proceed pro se was a “foolish choice.” 

The district court then allowed the Government to question Fortenberry.

The Government asked Fortenberry whether he had represented himself in any

other trial; understood the charges against him; understood the Sentencing
No. 08-20748

3

Guidelines and the penalties that could be imposed if he was found guilty; was

familiar with the Federal Rules of Evidence and the Federal Rules of Criminal

Procedure; and understood the details of a plea bargain he had previously

rejected. Further, unlike the defendant in Davis who presumably trusted the

neutrality of the bench, the record reflects that the district court and anyone

licensed to practice therein were all mistrusted by Fortenberry. The district

court’s permitting the Government to question Fortenberry during his lengthy

Faretta hearing did not render Fortenberry’s waiver of counsel less than

knowing and intelligent. 

Fortenberry also challenges the adequacy of the warnings he received

regarding the waiver of counsel at his sentencing hearing and the adequacy of

his apprehension of “possible defenses to the charges and circumstances in

mitigation thereof.” Von Moltke v. Gillies, 332 U.S. 708, 724 (1948). The record

reflects that Fortenberry was adequately informed about the range of

imprisonment he faced, about the plea offer he rejected, and about the

Sentencing Guidelines under which he was sentenced. Fortenberry made a

double jeopardy argument similar to the one in United States v. Davenport, 519

F.3d 940, 943-48 (9th Cir. 2008), in which the Ninth Circuit held that entry of

judgment based on a guilty plea to one count of receiving child pornography, in

violation of 18 U.S.C. § 2252A(a)(2), and one count of possessing child

pornography, in violation of § 2252A(a)(5)(B), violated double jeopardy because

possession offense was a lesser included offense of receipt offense. However, the

Government argued that the possession and receipt counts against Fortenberry

occurred on different days and therefore did not violate double jeopardy

principles.

The record does not reflect that Fortenberry had an inadequate

understanding of lesser included offenses and the possible defenses available to

him. Based “on the circumstances of th[is] individual case, the district court”

properly “exercise[d] its discretion in determining the precise nature of the
No. 08-20748

4

warning” given to Fortenberry to determine that his waiver of the right to

counsel was knowing and intelligent. Davis, 269 F.3d at 519.

Fortenberry next argues that he was unduly prejudiced by the prosecutor’s

closing remarks. Fortenberry argues that the prosecutor “ask[ed] the jury to

solve the serious social problem of child rape by convicting” him. Fortenberry

also argues that the prosecutor improperly gave his opinion when he told the

jury that a guilty verdict would be “a very proper verdict.”

Fortenberry admits that he did not object to the prosecutor’s statements

at trial and that review should therefore be for plain error. See United States v.

Thompson, 482 F.3d 781, 785 (5th Cir. 2007). Plain-error review involves the

following four prongs: First, there must be an error or defect that has not been

affirmatively waived by the defendant. Second, the error must be clear or

obvious, i.e., not subject to reasonable dispute. Third, the error must have

affected the defendant’s substantial rights. Fourth, if the above three prongs are

satisfied, we have the discretion to correct the error only if it “seriously affect[s]

the fairness, integrity or public reputation of judicial proceedings.” Puckett v.

United States, 129 S. Ct. 1423, 1429 (2009) (internal quotation marks and

citation omitted). 

The ultimate question on review is “whether the prosecutor’s remarks cast

serious doubt on the correctness of the jury’s verdict. In answering this

question, we consider (1) the magnitude of the prejudicial effect of the

prosecutor’s remarks, (2) the efficacy of any cautionary instruction by the judge,

and (3) the strength of the evidence supporting the conviction.” Thompson, 482

F.3d at 785 (internal quotation marks and citation omitted). 

The district court instructed the jury before closing arguments were made

to “consider only the evidence presented during the trial, including the sworn

testimony of the witnesses and the exhibits that have been admitted; . . . [and

to r]emember that any statements, objections, or arguments made by the

lawyers are not evidence.” “We presume that the jury follows the instructions
No. 08-20748

5

of the trial court unless there is an overwhelming probability that the jury will

be unable to follow the instruction and there is a strong probability that the

effect is devastating.” United States v. Tomblin, 46 F.3d 1369, 1390 (5th Cir.

1995) (internal quotation marks and citation omitted). Fortenberry “presents

no convincing argument that the jury did not follow the instruction given by the

trial court.” Id. at 1390-91. Moreover, the evidence of Fortenberry’s guilt was

extensive, and he did not attempt to refute his guilt of the offense conduct.

Rather, Fortenberry attempted only to persuade the jury that the district court

lacked jurisdiction to convict him. The district court’s instructions and the

weight of the evidence against Fortenberry “dissipated the potential prejudice

of the prosecutor’s statements,” and any error in their regard does not require

reversal under the plain error standard. Id. at 1391.

Fortenberry last challenges the special condition of his lifetime term of

supervised release that prohibits him from using the internet without prior

written approval from his probation officer. Fortenberry admits that he did not

challenge this provision in the district court. Thus, our review of this special

condition of supervised release is for plain error. See United States v.

Weatherton, 567 F.3d 149, 152 (5th Cir. 2009), cert. denied, – S. Ct. –, 2009 WL

2421734 (U.S. Oct. 5, 2009).

The district court has wide discretion to impose conditions of supervised

release. See United States v. Paul, 274 F.3d 155, 164 (5th Cir. 2001). “The

district court has the discretion to impose conditions reasonably related to the

history and characteristics of the defendant or his general rehabilitation.”

United States v. Cothran, 302 F.3d 279, 290 (5th Cir. 2002) (internal quotation

marks and citations omitted). This discretion is limited by 18 U.S.C. § 3583,

which requires that the conditions must be reasonably related to the factors set

forth in 18 U.S.C. § 3553(a)(1) and (a)(2)(B)-(C). These factors include: (1) “the

nature and circumstances of the offense and the history and characteristics of

the defendant,” (2) the need “to afford adequate deterrence to criminal conduct,”
No. 08-20748

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(3) the need “to protect the public from further crimes of the defendant,” and (4)

the need “to provide the defendant with needed [training], medical care, or other

correctional treatment in the most effective manner.” § 3553(a)(1)-(2). The

conditions “cannot involve a greater deprivation of liberty than is reasonably

necessary to achieve the latter three statutory goals.” Paul, 274 F.3d at 165.

Thus far, this court has approved a complete ban on internet usage for the

three year term of supervised release imposed on a defendant who “used the

Internet to encourage exploitation of children by seeking out fellow ‘boy lovers’

and providing them with advice on how to find and obtain access to ‘young

friends.’” Id. at 169. More recently, the Third Circuit upheld a conditional

internet ban, like the one at issue here, for a defendant’s ten-year term of

supervised release. United States v. Thielemann, 575 F.3d 265, 270, 278 (3d Cir.

2009). 

Although we recognize the conditional ban on the internet usage for a

lifetime is a harsh condition of supervised release, we cannot say that

Fortenberry has demonstrated that imposition of the same was plainly

erroneous. To show plain error, one thing the appellant must show is an error

that is clear or obvious. Puckett, 129 S. Ct. at 1429. To constitute clear or

obvious error, the error must be, at a minimum, clear or obvious under current

law at the time of appellate consideration. United States v. Dupre, 117 F.3d 810,

817 (5th Cir. 1997). Fortenberry has not made a showing that any alleged error

in imposing the challenged supervised release condition was clear or obvious at

the time of his trial or is clear or obvious under the current law of this circuit.

The judgment of the district court is AFFIRMED.