## United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________ No. 09-2886

___________ United States of America, *

* Appellee, * * Appeal from the United States v. * District Court for the * Western District of Arkansas. Robert Demers, * * [PUBLISHED] Appellant. *

___________ Submitted: November 15, 2010 Filed: February 16, 2011

___________ Before RILEY, Chief Judge, MELLOY and GRUENDER, Circuit Judges.

___________ PER CURIAM.

On December 10, 2008, staff of the Faye tteville, Arkansas, public library called the Fayetteville police after observing Robert Demers access and view child pornography on one of the library’s public -access computers. When the staff approached Demers to have him move away from the computer until the police arrived, he discarded a piece of paper c ontaining twelve images of child pornography he had printed from the computer. After arrest and indictment, Demers pled guilty to possession of child pornography, a violation of 18 U.S.C. § 2252(a)(4), (b)(1). Demers was a registered sex offender at th e time of the arrest, and he had compiled an extensive criminal history, which includes a conviction for sexual abuse andseveral convictions for domes tic violence, as well as two prior arrests for possession of child pornography. The district court 1 sentenced Demers to 150 months’ imprisonment and a lifetime of supervised re lease, subject to thirteen standard and seven special conditions. On appeal, De mers challenges four of these special conditions of supervised release.

Ordinarily, “[t]erms and c onditions of supervised release are reviewed for abuse of discretion.” United States v. Bender , 566 F.3d 748, 751 (8th Cir. 2009). However, since Demers did not object at sentencing to any of the special conditions he now challenges on appeal, we review his claims for plain error, see United States v. Ristine
, 335 F.3d 692, 694 (8th Cir. 2003), and will reverse only if De mers can show that the district court’s decision “deviates from a legal rule, the error is clear under current law, and the error affects substantial rights,” United States v. Davis , 452 F.3d 991, 994 (8th Cir. 2006). “We will correct such errors when they ‘seriously affect the fairness, integrity or public reputation of judicial proceedings.’” Id. (quoting United States v. Olano , 507 U.S. 725, 736 (1993)). 2

Demers first challenges special conditi on 5, which forbids him to “have access to an internet-connected computer” or to “access the internet from any location without prior approval by the probation offi ce and for a justifie d reason.” Title 18 U.S.C. § 3583 grants a sentencing court authority to “include as a part of the sentence

1 The Honorable Jimm Larry Hendren, Chief Judge, United States District Court for the Western District of Arkansas.

2Demers concedes that he failed to object to the challenged conditions before the district court but urges us to adopt th e Second Circuit’s approach and “relax the otherwise rigorous standards of plain erro r review to correct sentencing errors.” United States v. Sofsky , 287 F.3d 122, 125 (2d Cir. 2002). With respect to issues involving supervised release conditions, our circuit has reject ed this approach. Ristine , 335 F.3d at 694.

-2-a requirement that the defendant be placedon a term of supervised release after imprisonment,” § 3583(a), and also to impose, in addition to several mandatory conditions, “any other condition it considers to be appropriate,” § 3583(d). However, such a special condition can only be imposed to the extent that it “is reasonably related to the sentencing factors set forth in 18 U.S.C. § 3553(a), involves no greater deprivation of liberty than is reasonabl y necessary for the purposes set forth in § 3553(a), and is consistent with any pertinent policy statements issued by the Sentencing Commission.” United States v. Mark , 425 F.3d 505, 507 (8th Cir. 2005) (citing 18 U.S.C. § 3583(d))

.
Demers argues that a ban on his access to the internet is not reasonably related to the § 3553(a) factors. We have repeatedly rejected this argument. See United States v. Durham , 618 F.3d 921, 944 (8th Cir. 2010) (“[T]here is no real doubt that restricting [the defendant’s] access to the In ternet is reasonably related to the nature and circumstances of the offense—which, at a minimum, involved using LimeWire to acquire a large collection of child pornography.”); Bender , 566 F.3d at 751 (“Limits on [the defendant’s] use of comput ers and the internet are related to the circumstances of his previous offens es—illicit sexual conduct with a minor and viewing pornography on a public computer.”); Mark , 425 F.3d at 509 (“Given [the defendant’s] repeated offenses of view ing child pornography over the Internet, a complete ban on Internet access is reasona bly related to the statutory purposes of deterring criminal conduct and protecting the public from further crimes of the defendant.”). Given Demers’s prior sexual abuse offense and his status as a registered sex offender, we have no tr ouble concluding that because Demers’s offense involved using the internet to access child pornography, a limitation on his access to the internet is “reasonably calculated to deter him from repeating his illegal activity, protect the public from similar conduct, and serve his correctional needs.” Bender , 566 F.3d at 751.

-3-Next, Demers argues that this condition “r epresents a greater deprivation of his First Amendment rights than is reasonably necessary.” Since United States v. Crume
, we have generally maintained that a co mplete bar to intern et access constitutes a greater deprivation of liberty than necessaryif “the record is devoid of evidence that [the defendant] has ever used his computer for anything beyond simply possessing child pornography.” 422 F.3d 728, 733 (8th Cir. 2005); see also United States v. Alvarez , 478 F.3d 864, 867 (8th Cir. 2007). But see Mark , 425 F.3d at 510 (leaving open the possibility that “in some case of a defendant involved in possessing child pornography,” such a ban might be justified “if a defendant is incorrigible and other alternatives are thoroughly considered butreasonably found to be ineffective”).

Crume raises rather than decides the question of how much beyond mere possession of child pornography is necessary to justify a complete ban. In United States v. Boston , however, we upheld a restriction on internet access equally as broad in scope as the one at issue here. 494 F.3d 660, 668 (8th Cir. 2007). In doing so, we primarily relied on the fact that “evidence was presented at the suppression hearing that [the defendant] had used a computerto print out images of child pornography which could easily have been done for the purpose of transferring them to others.” Id. In the instant case, Demers was arrested at a public library after having printed images of child pornography, which, as in Boston , could very well have been done for the purpose of distributing those images. We find that Boston controls this issue, and we conclude that the district court did not plainly err in imposing special condition 5.

Second, Demers challenges special condition 7, which prohibits him from possessing “pornographic materials of any type .” Demers first contends that the court’s imposition of this condition was not based on a sufficiently individualized determination, citing United States v. Bender

. See also United States v. Curry , 627 F.3d 312, 315 (8th Cir. 2010). Bender is easily distinguishable, since the district court in that case imposed a ban on sexually s timulating materials solely based on the defendant’s membership in the class of sex offenders, Bender , 566 F.3d at 752,

-4-whereas the district court here imposedthe ban on pornography after a discussion of Demers’s background and characteristics, including his prior child pornography arrests and domestic battery offenses, citi ng “the need to curb any tendency you might have to further engage in child pornography efforts or abus es.” Moreover, even were we to find that the district court erred in not conducting a sufficiently individualized determination, that error likely woul d not “affect[] substantial rights,” Davis , 452 F.3d at 994, since Demers’s offense and history, including his prior conviction for sexual abuse, make it unlikely that he could carry his burden of showing that the condition would not have been imposed in any event. Cf. Curry , 627 F.3d at 315 (holding that a condition banning pornography prejudiced the defendant becau se there was a “reasonable probability” that the condition would not have been imposed had the district court conducted a sufficiently indi vidualized determination, given that the defendant’s conviction was for a “registr ation offense, not a sexual exploitation offense”).

Demers also argues that special condition 7 is overbroad and a greater-thannecessary restriction of his First Amendment rights. In Boston , we upheld an equallyextensive condition against a claim that it was overbroad, noting that “[g]iven [the defendant’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.” Boston , 494 F.3d at 668; see also Ristine , 335 F.3d at 694-95; (upholding a similar restricti on as “appropriately tailored” given the defendant’s “obsession with or addiction to child pornography”). 3

3 Demers asserts that Ristine ’s denial of plain error relief was based on the existence of an inter-circuit split over this issue, meaning that any error could not be clear under then-current law, and that developments in the law since Ristine have clarified the law in his favor. The court in Ristine did rely on this argument to dispose of a vagueness claim that a prohibition on possessing pornography “leaves [the defendant] without notice as to what film , prose, and art he may view without violating the challenged condition.” Ristine , 335 F.3d at 695. Demers has raised no such vagueness claim. Instead, he argues that the restriction is overbroad, a claim that
-5-To be sure, we have struck down as ove rbroad conditions that restrict access to “any material . . . that . . . alludes to sexual activity,” United States v. Kelly , 625 F.3d 516, 519-22 (8th Cir. 2010), or “any mate rial . . . that contains nudity,” United States v. Simons , 614 F.3d 475, 483-85 (8th Cir. 2010). Ho wever, it was the breadth of these restrictions, which potentially prohi bited access to “a biology textbook,” id. at 483, or “the Bible,” Kelly , 625 F.3d at 521, that was fatal to the conditions in these cases. This flaw is not shared by the ban on “possess[ing] pornographic materials of any type” that Demers challenges in the instant case. In our circuit it remains settled that a condition that bars access to pornography alone does not constitute a greater restriction of First Amendment rights th an is necessary when imposed on someone with a history of sexual offenses like Demers. See Ristine , 335 F.3d at 694-95; Boston , 494 F.3d at 667-68.

Third, Demers challenges special cond ition 2, which orders him to “submit to any means utilized by the probation office to track his whereabouts or location at any time,” arguing that it is a greater deprivati on of liberty than reasonably necessary. We have previously upheld an identical cond ition against a challenge that it constituted a greater-than-necessary restriction of liberty. Durham , 618 F.3d at 933-34. Durham disposes of Demers’s challenge to special condition 2. 4

Ristine found to be “without merit.” Id. at 694.

4Demers also asserts that this conditi on is “punitive and an alternative form of incarceration,” and, since the condition will be imposed for life, “constitutes cruel and unusual punishment under the Eighth Amendm ent.” Demers makes no argument to support this assertion, nor does he c ite any law on point. Demers’s Eighth Amendment challenge accordingly fails to show plain error. See United States v. Fields , 324 F.3d 1025, 1027-28 (8th Cir. 2003) (concluding that an Eighth Amendment challenge does not show plain error becau se the defendant “cites no case in which a condition of supervised releas e was found to constitu te cruel and unusual punishment”).
-6-Finally, Demers challenges special cond ition 3, which provides that he “shall have no unsupervised contact with minors .” Demers argues that this condition represents a greater-than-necessary restriction of his liberty. He points out that although we have upheld conditi ons restricting contact withminors in the past, those restrictions all contained an exception fo r contact with minors that is approved in advance by a probation officer. See, e.g. , United States v. Koch , 625 F.3d 470, 481 (8th Cir. 2010); United States v. Mickelson , 433 F.3d 1050, 1056-57 (8th Cir. 2006); Mark , 425 F.3d at 507-08; Crume , 422 F.3d at 734. The Government has cited no case where we have upheld a condition barring contact with minors that did not contain such an exception, and we are awar e of none. Neither have we held, however, that the absence of a pre-approval exception is per se fatal to a restriction on contact with minors, although two of our cases have come close.

In United States v. Bender , we vacated a condition that barred the defendant from “frequent[ing] places where minors are known to frequent without the prior approval of the Probation Officer and then only in the presence and supervision of a responsible adult .” Bender , 566 F.3d at 753 (alteration in original). We noted that this condition, which required supervision as well as prior approval, was not supported by our earlier cases, “which address the require ment of prior approval in order to have contact with minors.” Id. at 754. However, the c ourt went on to find “[m]ore important[]” the distinction between “movement restrictions” and “contact conditions.” Id. Since Bender dealt with the former and Demers challenges the latter, Bender does not compel a conclusion that cont act restrictions are invalid unless they contain a pre-approval exception.

In United States v. Davis , we found plainly erroneous a condition, similar to condition 3 here, that barred unsupervised c ontact with minors without a pre-approval exception. 452 F.3d at 995. However, th e court specifically vacated the condition based on “[t]he district c ourt’s failure to look at the specific facts at hand when gauging the propriety of the condition.” Id . Demers does not challenge the contact-

-7-with-minors restriction on the basis that the district court failed to make an adequately individualized assessment. More over, unlike the defendant in Davis , Demers has a history of sexual abuse and domestic violence and is currently a registered sexoffender. 5

We also note that unlike the defendants in Crume , 422 F.3d at 734; Mark , 425 F.3d at 507; and Davis , 452 F.3d at 994, Demers has no children—a factor that our prior cases have afforded some weight. In Davis , for example, we noted that “[t]he relationship between a parent and child is a fundamental liberty interest protected by the due process clause.” Id. at 995. And in Kerr , we found it significant that “because [the defendant] is childless, he is not re stricted from contacting his own children.” Kerr , 472 F.3d at 523.

We need not decide today whether De mers would prevail under an abuse-ofdiscretion standard. Because Demers did not object to the challenged condition before the district court, he must not only demonstrat e the existence of an error; he must also show that it is plain. See United States v. Pirani , 406 F.3d 543, 550 (8th Cir. 2005) (en banc). An error is plain if it is “obvious” or “clear under current law.” Olano , 507 U.S. at 734. In light of Demers’s history of sexual abuse and lack of children, and because we have never held that a cond ition barring contact with minors is invalid without an exception for contact pursuant to prior approval, wedo not believe that imposing such an unqualified condition constitu tes an error that is clear under current

5 Although not cited by Demers, our decision in United States v. Kerr , 472 F.3d 517 (8th Cir. 2006), offers a different interpretation of Davis . In upholding a contactwith-minors restriction that included a pre-approval exception, we noted that “ Davis is distinguishable” because the condition in that case “allowed no unsupervised contact with a minor ratherthan allowing such contact after obtaining permission.” Kerr , 472 F.3d at 523. Howe ver, our decision in Davis did not rely on this factor, and Kerr merely holds that a contact condition that includes a pre-approval exception does not constitute plain error. It does not comp el a conclusion that the absence of such a pre-approval exception is per se fatal to a contact-with-minors condition.
-8-law. See Ristine , 335 F.3d at 695 (holding that a condition banning possession of pornography did not constitute plain error b ecause “the current law concerning this issue is unsettled”). Accordingly, even assuming that Demers could demonstrate that the imposition of this condition was an error, he has not demonstrated that it was a plain one.

For the foregoing reasons, we affirm Demers’s sentence.

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