IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-50136

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee 

v. 

JAMES ALLEN CARAVAYO, 

 Defendant - Appellant 

Appeals from the United States District Court 

for the Western District of Texas 

USDC No. 3:05-CR-1581-1 

Before REAVLEY, HAYNES, and COSTA, Circuit Judges. 

PER CURIAM:*

James Allen Caravayo previously challenged a special condition of 

supervised release absolutely prohibiting him from dating anyone with 

children under the age of eighteen. He prevailed. See United States v. 

Caravayo, 809 F.3d 269 (5th Cir. 2015). We ordered resentencing but indicated 

that the special condition may yet be proper depending on the findings made 

by the sentencing judge on remand. Id. at 276. On remand, the district court 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

June 13, 2017

Lyle W. Cayce

Clerk

 Case: 16-50136 Document: 00514031600 Page: 1 Date Filed: 06/13/2017
No. 16-50136

2 

struck the dating restriction altogether and instead required that if “the 

defendant begins to date anyone with children under the age of 18, he must 

immediately notify the probation officer.” Caravayo again appeals. 

BACKGROUND 

Caravayo pleaded guilty to possession of child pornography in violation 

of 18 U.S.C. § 2252, served a prison sentence, and is now on supervised release. 

In 2014, his supervised release was revoked due to a Texas misdemeanor 

conviction. At the revocation hearing, the district court imposed a 90-day 

sentence and re-imposed all prior conditions of supervised release. Caravayo, 

however, successfully appealed from Special Condition Six, which prohibited 

him from “dat[ing any] women/men who have children under the age of 

eighteen.” We ruled in Caravayo’s favor “[b]ecause the district court made no 

specific factual findings” establishing that the condition “was reasonably 

related to one of the four factors under [18 U.S.C.] § 3553(a), and because the 

record d[id] not clearly substantiate such a relationship.” Id. at 275. 

While that appeal was pending, Caravayo was busy violating the terms 

of his supervised release. Most notably, he used the Internet to access a 

website ostensibly geared toward the “nudist” lifestyle—a website that 

included images of nude children as well as adults. The district court was 

aware of this violation when it held the revocation hearing on remand. While 

it struck Special Condition Six entirely, it imposed the special condition now 

challenged on appeal. This “notice condition” was appended to Special 

Condition One and requires Caravayo to immediately inform his probation 

officer if he begins dating anyone with children under the age of eighteen. 

DISCUSSION 

I 

As amended, Special Condition One now requires that “[i]n the event 

that the defendant begins to date anyone with children under the age of 18, he 

 Case: 16-50136 Document: 00514031600 Page: 2 Date Filed: 06/13/2017
No. 16-50136

3 

must immediately notify the probation officer.” Caravayo notes disagreement 

regarding what it means, in common parlance, to date someone. He contends 

the term is therefore impermissibly vague and ambiguous—that it does not 

afford him fair notice of what conduct is required, or prohibited. In the first 

appeal on this matter, however, he made no objection whatsoever to that very 

same word, which also appeared in the prior Special Condition Six—“date.” 

Special Condition Six presented the same (supposed) risk; it prohibited

Caravayo from dating certain people but did not separately define what it 

meant to date. 

When an argument is not made on appeal and is thus waived, that 

waiver applies to any subsequent appeal. Lindquist v. City of Pasadena Texas, 

669 F.3d 225, 239 (5th Cir. 2012). “The doctrine promotes procedural efficiency 

and ‘prevents the bizarre result that a party who has chosen not to argue a 

point on a first appeal should stand better as regards the law of the case than 

one who had argued and lost.’” Id. at 239–40 (quoting Nw. Indiana Tel. Co. v. 

F.C.C., 872 F.2d 465, 470 (D.C. Cir. 1989)). This rule applies here. 

Our prior opinion did not establish the law of the case because it did not 

decide (either expressly or “by necessary implication”) whether there was any 

constitutional problem with a special condition that is triggered when the 

defendant begins to “date.” See In re Felt, 255 F.3d 220, 225 (5th Cir. 2001)

(quoting Browning v. Navarro, 887 F.2d 553, 556 (5th Cir. 1989)). But the fact 

of this second appeal does not provide Caravayo an opportunity to make an 

argument that he should have made in the first appeal. Appeals taken from a 

defendant’s resentencing on remand must be limited to new issues that 

materialized at resentencing and cannot raise an argument that should have 

been presented in the first appeal. 

 Case: 16-50136 Document: 00514031600 Page: 3 Date Filed: 06/13/2017
No. 16-50136

4 

II 

To the extent Caravayo challenges the notice condition as being 

unsupported by the record, we review only for an abuse of discretion. United 

States v. Huor, 852 F.3d 392 (5th Cir. 2017).

[S]uch conditions must be reasonably related to one of the 

following statutory factors: (i) the nature and circumstances of the 

offense and the history and characteristics of the defendant; (ii) the 

need to afford adequate deterrence to criminal conduct; (iii) the 

need to protect the public from further crimes of the defendant; 

and (iv) the need to provide the defendant with needed training, 

medical care, or other correctional treatment in the most effective 

manner. 

United States v. Salazar, 743 F.3d 445, 451 (5th Cir. 2014) (citing 18 U.S.C. 

§ 3553(a)(1)–(2)). 

And they “cannot involve a ‘greater deprivation of liberty than is 

reasonably necessary’ to achieve the statutory goals.” Id. (quoting United 

States v. Paul, 274 F.3d 155, 165 (5th Cir. 2001)). 

According to Caravayo, the notice condition is not reasonably related to 

the statutory factors and unduly interferes with his First Amendment rights, 

especially given that he is already prohibited from unsupervised contact with 

minors. 

The notice condition clearly relates to the first three statutory factors—

the history and characteristics of the defendant coupled with the nature and 

circumstance of his offense, deterrence of criminal conduct, and protection of 

the public. We find the relation reasonable. It is essentially conceded that 

Caravayo is a sick man who should be kept far from children. Thus he does 

not challenge the conditions prohibiting him from “unsupervised contact with 

any child under age 18” and from loitering near places where children are 

likely to be found. The notice condition directly aids the probation office in 

ensuring that Caravayo does not harm children, both by alerting the probation 

 Case: 16-50136 Document: 00514031600 Page: 4 Date Filed: 06/13/2017
No. 16-50136

5 

officer to particular children within Caravayo’s social orbit and by affording 

the officer an opportunity to advise at-risk persons of Caravayo’s criminal 

background. 

Moreover, based on the record, Caravayo is either unrepentant or beyond 

help. While the defendant’s counsel was diligently advocating on his behalf 

during the prior appeal, Caravayo was violating conditions of his supervised 

release by viewing images of nude children on the Internet. The record shows 

that the district court is very worried about the risks Caravayo poses as a 

member of society. The sentencing judge has seen and spoken with this man 

and knows far more about him than we do. We are not inclined to second-guess 

the district court’s views on Caravayo, but even if we were, such secondguessing is inappropriate. United States v. Heard, 709 F.3d 413, 435 (5th Cir. 

2013).

We reject Caravayo’s argument that the notice condition is redundant

and therefore necessarily unnecessary. It is true that the condition prohibiting 

“unsupervised contact” with minor children is also intended to keep Caravayo 

from harming children, but a sentencing court is within its discretion to seek 

a worthy ends through multiple means. United States v. Pennington, 606 F. 

App’x 216, 223 (5th Cir. 2015). Caravayo also contends that the notice 

condition is uncalled for because he has never exploited a dating relationship 

to prey upon children. But we dismiss the idea that a harm must befall the 

public before sentencing courts are empowered to protect against that harm. 

And the argument is particularly unpersuasive here, where the parties seem 

to agree on the propriety of sentencing conditions that keep Caravayo away 

from children. Again, the notice condition is simply another reasonable means 

of promoting that goal. 

Finally, we reject Caravayo’s First Amendment-related arguments. In 

Caravayo, we noted that the absolute dating restriction might be warranted on 

 Case: 16-50136 Document: 00514031600 Page: 5 Date Filed: 06/13/2017
No. 16-50136

6 

remand. 809 F.3d at 275. The district court has stricken the dating restriction 

entirely and replaced it with a notice condition. Assuming that the notice 

condition interferes with Caravayo’s right to free association, the interference 

is minimal and “reasonably necessary in light of the nature and circumstances 

of [his] offense and the legitimate need to prevent recidivism and protect the 

public.” Paul, 274 F.3d at 167. 

CONCLUSION 

 For the foregoing reasons, Caravayo’s sentence is AFFIRMED. 

 Case: 16-50136 Document: 00514031600 Page: 6 Date Filed: 06/13/2017