REVISED JULY 1, 2013

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-10162

UNITED STATES OF AMERICA,

Plaintiff – Appellee

v.

TODD WAYNE ELLIS,

Defendant – Appellant

Appeal from the United States District Court

for the Northern District of Texas

Before JOLLY, GARZA, and OWEN, Circuit Judges.

PER CURIAM:

Todd Wayne Ellis pleaded guilty to possession of child pornography in

violation of 18 U.S.C. § 2252(a)(4)(B), (b)(2). He appeals several conditions of his

supervised release. We AFFIRM.

I

As a result of a lead from a different investigation, law enforcement

agents downloaded videos depicting child pornography through a peer-to-peer

network and discovered Ellis’s computer was the source of the videos. Law

enforcement agents then executed a search warrant of Ellis’s residence while

United States Court of Appeals

Fifth Circuit

F I L E D

May 20, 2013

Lyle W. Cayce

Clerk
No. 12-10162

2

Ellis was present. Ellis admitted his use of the peer-to-peer network for child

pornography.

The agents interviewed Ellis’s 19-year-old nephew, R. Brecheisen, while

conducting the search. Brecheisen, who along with his immediate family resided

in another home on Ellis’s property, revealed that Ellis molested him on the

property when he was 12 or 13 years old. Brecheisen also revealed Ellis

molested his cousin and another boy. Brecheisen’s father then corroborated

these statements and added that Ellis molested Brecheisen’s brother along with

the other boys when they were all 12 or 13 years old. In addition, the agents

found dozens of videos and images depicting child pornography on Ellis’s

computer.

Ellis was charged with one count of receipt and distribution of child

pornography and one count of possession of child pornography. He pleaded

guilty to only the possession charge pursuant to a plea agreement. His

pre-sentence report (“PSR”) indicated he is certified as a registered

polysomograph technician and was previously employed in that capacity. The

PSR also indicated Ellis reported he was sexually abused as a child but never

received counseling. The PSR included Brecheisen’s and Brecheisen’s father’s

allegations, to which Ellis objected as untrue in his written objections to the

PSR. In an addendum, the PSR indicated that Brecheisen told the agents he

installed a lock on his door at age 17 because of his apprehension of Ellis’s

continued sexual propositions. The probation officer who prepared the PSR

contacted Brecheisen, who confirmed the abuse but refused to elaborate further.

At sentencing, Ellis objected to the testimony of the officer who

interviewed Brecheisen and his father on hearsay and Confrontation Clause

grounds. The district court overruled the objection and the agent testified that
No. 12-10162

3

Brecheisen said the abuse occurred on several occasions, included Ellis touching

Brecheisen’s genitals and engaging in oral sex, and continued for a long time.

The agenttestified that Brecheisen said Ellis propositioned him when he was 17

years old and made a sexually explicit comment to him when he was 18 years

old, and, as a result, Brecheisen put a lock on his door. The district court

sentenced Ellis to the statutory maximum of 120 months of incarceration and a

lifetime of supervised release.

The district court imposed seven conditions of supervised release that are

relevant to this appeal. They are as follows:

The defendant shall participate in sex offender treatment

services as directed by the probation officer until successfully

discharged. These services may include psycho-physiological testing

(i.e. clinical polygraph, plethysmograph, and the ABEL screen) to

monitor the defendant’s compliance,treatment progress, and risk to

the community. The defendant shall contribute to the costs of

services rendered (copayment) at a rate of at least 5.00 per month.

The defendant shall have no contact with persons under the

age of 18, including by correspondence, telephone, internet,

electronic communication, or through third parties. The defendant

also shall not have access to or loiter near school grounds, parks,

arcades, playgrounds, amusement parks or other places where

children may frequently congregate. The defendant shall neither

seek nor maintain employment or volunteer work at any location

and/or activity where persons under the age of 18 congregate,

without prior permission of the probation officer. Furthermore, the

defendant shall not date or befriend anyone who has children under

the age of 18, without prior permission of the probation officer.

The defendant shall not have any form of unsupervised

contact with persons under the age of 18 at any location, including

but not limited to, the defendant’s residence, place of employment,

and public places where minors frequent or congregate, without

prior permission of the probation officer.
No. 12-10162

4

The defendant shall neither possess nor have under his/her

control any sexually oriented, or sexually stimulating materials of

adults or children. This may include visual, auditory, telephonic,

electronic media, email, chat communications, instant messaging,

or computer programs. The defendant shall not patronize any place

where such material or entertainment is available. The defendant

shall not use any sex-related telephone numbers.

The defendant shall not possess, have access to, or utilize a

computer or internet connection device including, but not limited to

Xbox, PlayStation, Nintendo, or similar device without permission

of the court.

The defendant shall participate in mental health treatment

services as directed by the probation officer until successfully

discharged. These services may include medications prescribed by

a licensed physician. The defendant shall contribute to the costs of

services rendered (copayment) at a rate of at least $5.00 per month.

The district court stated lifetime supervised release “will ensure that

[Ellis] compl[ies] with the sex offender registration law and not have access to

children” and “[s]ex offender and treatment conditions are recommended because

of the nature of the offense.” Ellis’s counsel objected “[t]o the lifetime of

supervision and the conditions therein as being excessive,” which the district

court overruled. Ellis timely appealed.

II

We review substantive reasonableness challenges to conditions of

supervised release for abuse of discretion. United States v. Miller, 665 F.3d 114,

126 (5th Cir. 2011). “To preserve error, an objection must be sufficiently specific

to alert the district court to the nature of the alleged error and to provide an

opportunity for correction.” United States v. Neal, 578 F.3d 270, 272 (5th Cir.

2009). If an error was not preserved, our review is for plain error so “we must

determine (1) if there was error, (2) if it was plain, (3) if the error affects
No. 12-10162

5

substantial rights, and (4) if allowing that error to stand seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” United States

v. Alvarado, 691 F.3d 592, 598 (5th Cir. 2012).

III

A district court’s discretion in imposing conditions of supervised release,

though extensive, is subject to statutory requirements. United States v. Paul,

274 F.3d 155, 164 (5th Cir. 2001). The conditions of supervised release must be

related to one of four factors: (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;” (3) “the need . . . to protect the public

from further crime of the defendant;” and (4) “the need . . . to provide the

defendant with needed educational or vocationaltraining, medical care, or other

correctional treatment in the most effective manner.” 18 U.S.C. §§ 3583(d)(1),

3553(a)(1) and (2)(B)–(D); United States v. Weatherton, 567 F.3d 149, 153 (5th

Cir. 2009) (explaining a condition of release “must be reasonably related to one

of four factors”). In addition, the conditions may not impose a “greater

deprivation of liberty than is reasonably necessary for the purposes set forth in”

§ 3553(a). 18 U.S.C. § 3583(d)(2). Ellis appeals the conditions recounted above,

and we address each in turn.

A
No. 12-10162

6

Ellis appeals six conditions on the grounds that they are not reasonably

related to the § 3553(a) factors and are a greater deprivation of liberty than

necessary under § 3583(d)(2). Because Ellis objected before the district court,

our review is for abuse of discretion. Miller, 665 F.3d at 126. We are not

convinced any of his challenges on these grounds have merit.

First, Ellis appeals the special condition that he not “possess, have access

to, or utilize a computer or internet connection device . . . without prior approval

of the court.” Contrary to Ellis’s concern in his brief, modern devices such as

cars and appliances do not come under the purview of the ban because the

categorical term “computers” is subject to a “commonsense understanding of

what activities the categor[y] encompass[es].” Paul, 274 F.3d at 167. However,

restrictions on Internet and computer use are often imposed in cases involving

child pornography, and this circuit has routinely upheld such restrictions. E.g.

Miller 665 F.3d at 126, 133–34 (holding district court did not abuse discretion

in imposing twenty-five year ban on computer use without probation office

approval); see also U.S. SENTENCINGGUIDELINESMANUAL § 5D1.3(d)(7)(B) (2011)

(“A condition limiting the use of a computer or an interactive computer service

[is recommended] in cases in which the defendant used such items.”).

Second, Ellis appeals the condition requiring him to “have no contact with

persons under the age of 18, including by correspondence, telephone, internet,

electronic communication, or through third parties.” This circuit has affirmed

bans on contact with children. E.g. United States v. Rodriguez, 558 F.3d 408,

417–18 (5th Cir. 2009) (affirming three-year prohibition on unsupervised contact

with children, including the defendant’s own daughter); United States v.

Buchanan, 485 F.3d 274, 287–88 (5th Cir. 2007) (affirming three-year ban on
No. 12-10162

1Ellis appeals this condition on vagueness grounds as well, which we address below.

See Part III.B ante.

7

unsupervised contact with children without exception for permission from

probation officer). Ellis’s ban does not contain an exception for permitted contact

and is, along with the other conditions, for life. Importantly, however, it

references activities by which Ellis could initiate and carry on regular contact

with children. By contrast, the condition in the subsequent paragraph, which

prohibits “unsupervised contact . . . at any location” without permission, makes

clear that Ellis may in fact request permission from his probation officer for

incidental contact in locations such as his place of work should the need arise.

Third, Ellis appeals the condition that prohibits him from “access to or

loiter[ing] near school grounds, parks, arcades, playgrounds, amusement parks,

or other places where children may frequently congregate” and from “seek[ing]

or maintain[ing] employment or volunteer work at any location . . . where

persons under the age of 18 congregate, without prior permission of the

probation officer.” Although it is true there is no evidence Ellis targeted children

in public places, his crime and the evidence of past molestation is sufficient

reason for the district court to be concerned with his access to children absent

permission. See Paul, 274 F.3d at 167 (“The supervised release conditions

restricting Paul’s contact with minors . . . are reasonably necessary in light ofthe

nature and circumstances of Paul’s offense and the legitimate need to prevent

recidivism and protect the public.”).

Fourth, Ellis appeals as not related to public safety the condition that he

not “date or befriend anyone who has children under the age of 18, without prior

permission of the probation officer.”1 This restriction is reasonably related to
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public safety because “Congress has made clear that children . . . are members

of the public it seeks to protect.” Rodriguez, 558 F.3d at 417. Even though the

conditions contain separate restrictions on contact with minors, the evidence

showed Ellis has a proclivity to use close relationships to reach children, as he

reached Brecheisen and his brother through his relationship with their family.

Therefore, restricting his contact with other adults who have minor children is

related to public safety. Cf. United States v. Wolf Child, 699 F.3d 1082, 1099

(9th Cir. 2012) (holding restriction on contact with defendant’s own children and

his fiancee who has minor children substantively unreasonable but stating “if a

defendant has a proclivity for sexual violations of familial relationships . . . such

a condition may be appropriate”).

Fifth, Ellis appeals the condition prohibiting him from possessing sexually

stimulating material because the ban could encompass works of art and

literature and prevent him from patronizing establishments such as grocery

stores that may sell such material. This circuit has repeatedly stated conditions

of supervised release, including “sexually oriented or sexually stimulating

materials,” should “be read in a commonsense way.” United States v. Phipps,

319 F.3d 177, 193 (5th Cir. 2003) (citing Paul, 274 F.3d at 166–67). “Such a

construction compels us to disagree with defendants’ suggestion that the

condition could apply to newspapers and magazines that contain lingerie

advertisements or even to the ‘Song of Solomon.’ Moreover, the prohibition on

patronizing sexually oriented establishments refers, with sufficient precision,to

places such as strip clubs and adult theaters or bookstores.” Phipps, 319 F.3d

at 193. The same “commonsense” understanding applies here. Id.
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In addition, Ellis asserts this condition is not reasonably related to his

offence. Because Ellis’s crime was sexual in nature it was reasonable for the

district court to restrict Ellis’s access to sexually stimulating material more

broadly in an effort to prevent future crimes or aid in his rehabilitation. See

United States v. Boston, 494 F.3d 660, 668 (8th Cir. 2007) (“Given Boston’s

history of sexual offenses and the desire to deter him from this conduct in the

future, the condition in prohibiting his access to sexually explicit material

involving adults is not overly broad.”); see also Miller, 665 F.3d at 136 (holding,

where defendant’s videos included both children and adults and condition

forbade access to adult pornography, “[e]ven were we to review for an abuse of

discretion . . . the district court would not have abused its discretion”).

Sixth, Ellis appeals the condition requiring him to participate in mental

health and sex offender treatment programs, particularly the possibility he

might be required to submitto psychotropic medication and psycho-physiological

testing, including penile plethysmographic testing. This challenge is not ripe for

review because Ellis may never be subjected to such medication or testing. See

United States v. Carmichael, 343 F.3d 756, 761 (5th Cir. 2003). If he is required

to submit to such medication or testing, he may petition the district court for a

modification of his conditions. 18 U.S.C. § 3583(e)(2); FED. R. CRIM. P. 32.1(c);

see United States v. Rhodes, 552 F.3d 624, 628–29 (7th Cir. 2009) (“As the

condition is stated, there is a fair amount of discretion regarding the techniques

to be utilized. . . . [W]e would do well to await a more concrete presentation of

the issue. Regardless, Rhodes can later petition the district court to modify the

condition.” (citations omitted)).
No. 12-10162

2Had Ellis objected in the first instance, it is clear at least the term “befriend” is vague

and may have been subject to vacatur and remand to the district court for greater specificity.

The district court, in its sole discretion, may want to consider rephrasing this condition with

greater specificity to avoid any future questions.

10

In addition, Ellis appeals on the ground that the cumulative effect of all

these conditions is a greater deprivation of liberty than necessary. This circuit

has repeatedly stated that the district court is in a far better position to

determine the proper terms of supervised release, provided it does so within its

statutory authority. See United States v. Mondragon-Santiago, 564 F.3d 357,

360–61 (5th Cir. 2009). Moreover, since we have determined that none of these

conditions are unreasonable, their cumulative effect is not unreasonable.

Accordingly, we decline to hold the district court abused its discretion.

B

Ellis appeals the condition that he not “date or befriend anyone who has

children under the age of 18, without prior permission of the probation officer”

on vagueness grounds. The Government does not defend this condition in its

brief. Because he did not object on vagueness grounds before the district court,

our review is for plain error. Alvarado, 691 F.3d at 598.

While a condition need not spell out in excruciating detail the prohibited

conduct,“[r]estrictions on an offender’s ability to interact with particular groups

of people . . . must provide fair notice of the prohibited conduct.” Paul, 274 F.3d

at 166 (internal quotation marks omitted). With that in mind, we hold any error

in imposing this condition is not plain because it is not “clear or obvious.”2

United States v. Wilcox, 631 F.3d 740, 752 (5th Cir. 2011); cf. United States v.

Reeves, 591 F.3d 77, 81 (2d Cir. 2010) (holding it is “impossible to agree on the

proper application of a release condition triggered by entry into a ‘significant
No. 12-10162

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romantic relationship.’ What makes a relationship ‘romantic,’ let alone

‘significant’ in its romantic depth, can be the subject of endless debate that

varies across generations, regions, and genders.”). “[A]ppellate courts give

considerable deference to the judgment of the district court when conducting

plain error review.” Wilcox, 631 F.3d at 751–52. Accordingly, we hold the

district court did not commit plain error in imposing this condition.

IV

Ellis asserts his Confrontation Clause rights were violated because the

district court sentenced him based on testimonial hearsay statements made by

his nephew to law enforcement agents without affording Ellis an opportunity to

cross-examine his nephew. U.S. CONST. amend VI. This assertion is foreclosed

by our precedent. United States v. Mitchell, 484 F.3d 762, 776 (5th Cir. 2007)

(holding Confrontation Clause does not apply at sentencing and district court

may rely on hearsay).

V

Ellis asserts his sentence is substantively unreasonable because the

applicable Guideline lacks an empirical basis and regularly produces sentences

that are higher than necessary to achieve the goals specified in § 3553(a). U.S.

SENTENCINGGUIDELINESMANUAL § 2G2.2 (2011). This issue is foreclosed by our

precedent. Miller, 665 F.3d at 121 (“Empirically based or not, the Guidelines

remain the Guidelines.”); UnitedStates v. Duarte, 569 F.3d 528, 529–31 (5th Cir.

2009) (rejecting the notion thatthis court should examine empirical basis behind

each Guidelines provision before applying presumption of reasonableness).

VI

For these reasons, we AFFIRM.