IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-30559

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

ELLIOTT DUKE, 

 Defendant - Appellant

Appeal from the United States District Court

for the Western District of Louisiana

Before STEWART, Chief Judge, and KING and ELROD, Circuit Judges.

PER CURIAM:

Elliot Duke (Duke) pled guilty to one count of receipt of child 

pornography in violation of 18 U.S.C. § 2252A(a)(2)(B). The district court 

sentenced Duke to 240 months in prison, the statutory maximum, and imposed 

several special conditions of supervised release, including one unconditional, 

lifetime ban on accessing computers capable of Internet access and another 

prohibiting contact with individuals under the age of 18. On appeal, Duke 

challenges the procedural and substantive reasonableness of his sentence and 

the above-referenced conditions of his supervised release. For the reasons 

stated herein, we AFFIRM the procedural and substantive reasonableness of 

United States Court of Appeals

Fifth Circuit

FILED

June 5, 2015

Lyle W. Cayce

Clerk

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Duke’s sentence, VACATE two special conditions of supervised release, and 

REMAND for resentencing proceedings consistent with this opinion.

I.

The following facts are taken from the presentence investigation report 

(PSR), to which neither Duke nor the Government objected. On May 14, 2013, 

detectives from the Vernon Parish Sheriff’s Department in Leeville, Louisiana, 

were contacted by an individual claiming that his landlord, Duke, had been 

viewing child pornography. Duke’s tenant reported seeing several sexually 

explicit images on Duke’s laptop, including one involving a two- to four-yearold child. 

Based on this information, detectives secured a search warrant for 

Duke’s residence. Once advised that the detectives were at his residence to 

execute a search warrant, Duke expressed his willingness to cooperate and 

consented to the search. He admitted to possessing child pornography on his 

computer and to trading such images with other individuals over the Internet. 

After verifying that his computer contained images of child pornography, 

detectives took Duke into custody for further questioning. 

While in custody, Duke again admitted to possessing child pornography 

on his computer with at least one image depicting a two-year-old child. He also 

admitted to having rape fantasies. Finally, after detectives found sexually 

explicit images of a teenage girl on his cellphone, Duke admitted that he had 

begun an online relationship with a young girl in Alabama who represented 

that she was 16 years old. Over the course of the one and one-half months that 

they were involved, the two engaged in sexual online conversations, which 

transitioned into exchanging sexual text messages and pictures. 

A subsequent investigation conducted with Duke’s consent by Homeland 

Security Investigations uncovered over 50 emails between Duke and another 

individual in which several images containing child pornography were 

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exchanged. A forensic investigation of Duke’s two laptops (only one contained 

images of child pornography) revealed 168 videos and 187 still images of child 

pornography. 

Duke was then charged with one count of possessing child pornography 

(18 U.S.C. § 2252A(a)(5)(B)), four counts of receipt of child pornography 

(18 U.S.C. § 2252A(a)(2)(B)), and four counts of distribution of child 

pornography (18 U.S.C. § 2252A(a)(2)(B)). Pursuant to a written plea 

agreement, Duke pled guilty to one count of receipt of child pornography. 

The PSR determined that Duke’s base offense level under the United 

States Sentencing Commission Guidelines Manual (the Guidelines) was 22 

with a criminal history category of I. After several enhancements were 

assessed and a three-level reduction for acceptance of responsibility was 

credited, Duke’s total offense level was 37. The resulting Guidelines range was 

210 to 262 months imprisonment, but because the statutory maximum was 240 

months, the Guidelines range became 210 to 240 months.

In anticipation of his sentencing hearing, Duke submitted a sentencing 

memorandum in which he requested a downward variance, citing personal 

characteristics such as his physically and emotionally abusive childhood, 

mental illness, and his service in the United States Army, for which he 

renounced his United Kingdom citizenship. Furthermore, he argued, the 

Guidelines range was inherently unreasonable because it failed to distinguish 

between the various child pornography offenses. The Government argued in 

opposition that the Guidelines range was presumptively reasonable and that a 

within-Guidelines sentence was warranted under the circumstances. 

Duke reasserted his arguments for a downward variance at sentencing, 

which the district court rejected when sentencing him to the statutory 

maximum of 240 months imprisonment. The district court also imposed a 

lifetime term of supervised release with several conditions. The district court 

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explained that it considered the PSR, Duke’s sentencing memorandum and the 

Government’s opposition, his character letters, and the factors contained in 18 

U.S.C. § 3553 in imposing sentence. 

In a written Statement of Reasons (SOR), the district court further 

explained Duke’s sentence, stating that Duke was “actively engaged in child 

pornography with other [sic] via the internet, with some videos and images 

involving rape of toddlers,” that Duke entertained rape fantasies, and that he 

had established contact with a 16 year-old girl with whom he exchanged 

sexually explicit pictures. Duke objected at sentencing to two special 

conditions of supervised release: (1) that he is “not to have access to any 

computer that is capable of internet access”; and (2) that he is “to have no 

contact with anyone under the age of 18.” He also objected to the substantive 

reasonableness of his sentence. 

On appeal, Duke challenges the procedural and substantive

reasonableness of his sentence and the above-referenced special conditions of 

his supervised release. 

II.

Duke first contends that his sentence is procedurally and substantively 

unreasonable. We review the reasonableness of the imposed sentence for 

abuse of discretion. United States v. Mondragon-Santiago, 564 F.3d 357, 361 

(5th Cir. 2009). Under this review, we must first determine whether the 

district court committed any significant procedural error, such as “failing to 

adequately explain the chosen sentence.” Id. at 360. If the district court’s 

decision is procedurally sound, we will then “consider the substantive 

reasonableness of the sentence imposed under an abuse-of-discretion 

standard.” Gall v. United States, 552 U.S. 38, 51 (2007).

Duke failed to object to the procedural reasonableness of his sentence

before the district court. Therefore, we review his challenge to the procedural 

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reasonableness of his sentence for plain error. See Mondragon-Santiago, 564 

F.3d at 361. Under plain error review, we must decide “(1) if there was error, 

(2) if it was plain, (3) if the error affects 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). However, because Duke objected to the substantive reasonableness at 

sentencing, we review his substantive challenge under the usual, abuse of 

discretion standard. Mondragon-Santiago, 564 F.3d at 361.

A.

Duke contends that the district court procedurally erred by failing to 

adequately articulate reasons for its imposed sentence at the sentencing 

hearing. Specifically, Duke argues that his valid arguments and the 

mitigating evidence he offered in support of his request for a downward 

variance required more than the district court’s “boilerplate statement” that it 

had considered the § 3553 factors.

While the sentencing court is required to state “the reasons for its 

imposition of the particular sentence,” 18 U.S.C. § 3553(c), a full explanation 

of the sentencing factors is not required in every case. Rita v. United States, 

551 U.S. 338, 356 (2007). When, as here, the district court imposes a withinGuidelines sentence, “little explanation” is required to make this showing. 

United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). However, more is 

required if the parties provide legitimate and nonfrivolous arguments 

supporting a departure or variance. Mondragon-Santiago, 564 F.3d at 362. In 

such instances, a district court “will normally go further and explain why [it] 

has rejected those arguments.” Rita, 551 U.S. at 357. Nevertheless, such 

explanations need not be extensive. Id. Instead, “[t]he sentencing judge 

should set forth enough to satisfy the appellate court that [s]he has considered 

the parties’ arguments and has a reasoned basis for exercising h[er] own legal 

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decisionmaking authority.” Id. at 356. We have concluded that § 3553(c)’s 

ultimate goal is to “permit effective appellate review of sentencing.” United 

States v. Gore, 298 F.3d 322, 325 (5th Cir. 2002).

Assuming without deciding that the district court failed to give adequate 

reasons at sentencing, it did provide further justification for the sentence

imposed in its written SOR. In its written SOR, the district court explained:

The sentence addresses the nature and circumstances of the 

offense and the history and characteristics of the defendant, as 

well as the need for the sentence to reflect the seriousness f [sic] 

the offense, and to afford adequate deterrence to criminal conduct. 

This defendant was actively engaged in child pornography with 

other [sic] via the internet, with some videos and images involving 

rape of toddlers. The defendant admitted to rape fantasies. He 

had also established contact with a 16 year old girls [sic] and has 

been trading sexual images with her.

The written SOR provides sufficient explanation to allow for effective appellate 

review. See Gore, 298 F.3d at 325. From this statement, we are satisfied that 

the district court considered Duke’s arguments for a lesser sentence but 

ultimately rejected those arguments in light of the nature and circumstances 

of the offense, Duke’s history and characteristics, the seriousness of the crime, 

and the need for future deterrence. Under these circumstances, Duke has 

failed to establish plain error. See United States v. Sealed Juvenile, 781 F.3d 

747, 752 (5th Cir. 2015) (holding that the defendant failed to show plain error 

where the district court issued written judgement allowing for effective 

review); Gore, 298 F.3d at 325–26 (concluding that there was no plain error 

from district court’s failure to state reasons in open court when district court 

articulated reasoning in its written SOR). Moreover, Duke has failed to 

demonstrate that any error affected his substantial rights. See MondragonSantiago, 564 F.3d at 364–65 (holding that there is no reversible error when 

the defendant has failed to demonstrate that further explanation would have 

changed his within-Guidelines sentence).

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Because Duke has failed to demonstrate plain error, we conclude that 

the district court did not procedurally err in imposing sentence.

B.

Duke next challenges his within-Guidelines sentence as substantively 

unreasonable. The district court must correctly calculate the guidelines range 

and make an individualized assessment based on the facts of the case in light 

of 18 U.S.C. § 3553(a). Gall, 552 U.S. at 49–50. The district court shall also

impose a sentence sufficient, but not greater than necessary, to comply with 

§ 3553(a)(2)’s goals. See § 3553(a). Where, as here, the district court imposes 

a sentence within a properly calculated Guidelines range, the sentence is 

entitled to a rebuttable presumption of reasonableness on appeal. United 

States v. Rashad, 687 F.3d 637, 644 (5th Cir. 2012). “The presumption is 

rebutted only upon a showing that the sentence does not account for a factor 

that should receive significant weight, it gives significant weight to an 

irrelevant or improper factor, or it represents a clear error of judgment in 

balancing sentencing factors.” United States v. Cooks, 589 F.3d 173, 186 (5th 

Cir. 2009).

Duke first argues that his sentence is substantively unreasonable 

because Guidelines § 2G2.2—the Guidelines section applicable to child 

pornography offenses—lacks an empirical basis and therefore fails to 

distinguish between the least culpable and most culpable defendants. 

However, Duke acknowledges that this argument is foreclosed by United 

States v. Miller, 665 F.3d 114, 121 (5th Cir. 2011), and raises the argument to 

preserve this issue for future appellate review. 

Duke further argues that his sentence is substantively unreasonable in 

light of the mitigating evidence he presented to the district court relevant to 

his personal characteristics and history. Specifically, he contends that his 

military service, the absence of a criminal history, his history of abuse and 

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depression, and his possible loss of his United States citizenship warranted a 

lesser sentence. The district court considered this mitigating evidence but 

determined that the nature and circumstances of the offense, the history and 

characteristics of the defendant, the need to reflect the seriousness of the 

offense, and the need to deter future criminal conduct justified the sentence 

imposed. We find no abuse of discretion in the district court’s weighing or 

balancing of these factors. See United States v. Jenkins, 712 F.3d 209, 215 (5th 

Cir. 2013) (finding a 20-year sentence for receipt of child pornography 

substantively reasonable despite mitigating evidence of defendant’s childhood 

learning and behavioral disorders and Army service in Iraq). Accordingly, 

Duke has failed to rebut the presumptive reasonableness of his withinGuidelines sentence. 

III.

Finally, Duke challenges the two absolute, lifetime bans imposed as 

special conditions of supervised release as overly broad. Because Duke 

contemporaneously objected to these two restrictions, our review is for abuse 

of discretion. United States v. Ellis, 720 F.3d 220, 225 (5th Cir. 2013) (per 

curiam).

A district court has wide, but not unfettered, discretion in imposing 

terms and conditions of supervised release. United States v. Paul, 274 F.3d 

155, 164 (5th Cir. 2001). A district court’s discretion is curtailed by statute in 

two ways. See 18 U.S.C. § 3583(d); see also United States v. Fields, 777 F.3d 

799, 802–03 (5th Cir. 2014). First, the condition of supervised release must be 

“reasonably related” to one of four statutory factors: (1) the nature and 

characteristics of the offense and the history and characteristics of the 

defendant; (2) the need for deterrence of criminal conduct; (3) the need to 

protect the public from further crimes of the defendant; and (4) the need to 

provide the defendant with vocational training, medical care, or other 

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correctional treatment. Paul, 274 F.3d at 165 (citing §§ 3583(d), 3553(a)(1)–

(2)). Second, the condition must be narrowly tailored such that it does not 

involve a “greater deprivation of liberty than is reasonably necessary” to fulfill 

the purposes set forth in § 3553(a). See United States v. Rodriguez, 558 F.3d 

408, 412 (5th Cir. 2009). Moreover, the sentence should consider the policy 

statements issued by the Sentencing Commission. Miller, 665 F.3d at 126. 

The Guidelines recommend limiting a sex offender’s computer usage, see § 

5D1.3(d)(7)(B), and further recommend that the district court impose the 

maximum term of supervised release authorized by statute, which for sex 

offenses under § 3583(k), is life. See id. § 5D1.2.

Here, Duke does not contend that the special conditions are not 

reasonably related to his offense, nor could he. See Paul, 274 F.3d at 169 

(concluding that a computer ban was reasonably related to a non-production 

child pornography offense, and the need to prevent recidivism and protect the 

public); Rodriguez, 558 F.3d at 414 (deeming an association ban reasonably 

related to a defendant’s pending sexual assault on a minor charge in state court 

rather than the underlying federal conviction for assault on a federal officer). 

Therefore, the question is not whether the special conditions are reasonably 

related to Duke’s offense. Instead, the question is whether the scope coupled 

with the duration of the special conditions constitute a greater deprivation of 

liberty than reasonably necessary to accomplish statutory sentencing goals. 

We address each special condition in turn.

A.

Duke argues that the special condition prohibiting him from “hav[ing] 

access to any computer that is capable of internet access” is overly broad. Duke 

acknowledges that the district court could impose restrictions on his Internet 

access, but maintains that a blanket prohibition of all Internet usage is an 

unduly broad condition. 

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No circuit court of appeals has ever upheld an absolute, lifetime Internet 

ban. In fact, the Third and Seventh Circuits have refused to allow such bans. 

See United States v. Heckman, 592 F.3d 400, 409 (3d Cir. 2010); United States 

v. Voelker, 489 F.3d 139, 150 (3d Cir. 2007); United States v. Holm, 326 F.3d 

872, 877 (7th Cir. 2003). While we have approved absolute Internet bans for 

limited durations of time, see Paul, 274 F.3d at 170, and lifetime Internet 

restrictions that conditioned Internet usage on probation officer or court 

approval, see Ellis, 720 F.3d at 225, we have not addressed whether absolute 

bans, imposed for the rest of a defendant’s life, are permissible conditions. We 

conclude that they are not.

First, it is hard to imagine that such a sweeping, lifetime ban could ever 

satisfy § 3583(d)’s requirement that a condition be narrowly tailored to avoid 

imposing a greater deprivation than reasonably necessary. Indeed, an 

unconditional, lifetime ban is “the antithesis of a ‘narrowly tailored’ sanction.” 

Voelker, 489 F.3d at 145; see also Heckman, 592 F.3d at 409 (concluding that 

“the unconditional, lifetime ban imposed . . . is so broad and insufficiently 

tailored as to constitute ‘plain error’”); Holm, 326 F.3d at 877 (“We find that to 

the extent that the condition is intended to be a total ban on Internet use, it 

sweeps more broadly and imposes a greater deprivation on [the defendant’s] 

liberty than is necessary, and thus fails to satisfy the narrow tailoring 

requirement of § 3583(d)(2).”). Moreover, our case law requires that Internet 

bans be narrowly tailored either by scope or by duration.

For example, in United States v. Paul, we upheld an absolute Internet 

ban that prohibited the defendant from “having, possessing, or having access 

to computers [and] the Internet” during the three-year term of his supervised 

release. 274 F.3d at 167, 170 (internal quotation marks omitted). We have 

subsequently reasoned that the broad scope of the absolute ban in Paul was 

able to stand, in part, because of the short duration of the supervised release 

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term. See Miller, 665 F.3d at 131; see also United States v. Brigham, 569 F.3d 

220, 234 (5th Cir. 2009) (concluding that prohibiting all Internet access for “a 

limited time while on supervised release” was not unreasonable). 

Further, we have upheld Internet restrictions imposed for long durations

of time based on their narrow scope. For instance, in United States v. Miller, 

we upheld a conditional, 25-year computer and Internet restriction that 

prohibited the defendant from using any computer or any phone or electronic 

device capable of accessing the Internet without prior written approval from a 

probation officer. 665 F.3d at 126. The 25-year term of the Internet restriction 

withstood the defendant’s challenge, in part, because “[t]he ban [was] not 

absolute or unconditional.” Id. at 127. Finally, in United States v. Ellis, the 

court addressed a conditional, lifetime Internet restriction that prevented the 

defendant from “possess[ing], hav[ing] access to, or utiliz[ing] a computer or 

internet connection device . . . without prior approval of the court.” 720 F.3d 

at 225 (ellipsis in original) (internal quotation marks omitted). There, the 

court further narrowed the scope of the conditional restriction by excluding 

electronic devices that fell outside the commonsense definition of the term 

“computers.” Id. Unlike the conditions imposed in Paul, Miller, and Ellis, the 

absolute, lifetime ban at issue here is narrowed neither by scope nor by 

duration.

Second, the ubiquity and importance of the Internet to the modern world 

makes an unconditional, lifetime ban unreasonable. Although this court has 

not found the Internet to be so integral to modern life that a district court may 

not restrict its use, Paul, 274 F.3d 169–70, it has observed, along with many 

sister circuits, that “computers and the internet have become significant and 

ordinary components of modern life as we know it.” Brigham, 569 F.3d at 234; 

see also United States v. Albertson, 645 F.3d 191, 200 (3d Cir. 2011); United 

States v. Love, 593 F.3d 1, 12 (D.C. Cir. 2010); Holm, 326 F.3d at 878. Indeed, 

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recently, in United States v. Sealed Juvenile, we concluded that an Internet 

condition requiring a defendant to request permission from his probation 

officer every time that he wanted to access a computer or the Internet was 

unreasonably restrictive based on the recognition that “access to computers 

and the Internet is essential to functioning in today’s society.” 781 F.3d at 756 

(emphasis added). While we ultimately affirmed the condition, we did so 

subject to the admonition that it “[was] not to be construed or enforced in such 

a manner that the [defendant] would be required to seek prior written approval 

every single time he must use a computer or access the Internet.” Id. at 756–

57. 

Here, the absolute computer and Internet ban would completely preclude 

Duke from meaningfully participating in modern society for the rest of his life. 

It would prevent him from using a computer for benign purposes such as word 

processing, because as Duke argues, in our modern world all computers1 are 

capable of Internet access. Moreover, Duke would be prohibited from using the 

Internet for other innocent purposes such as paying a bill online, taking online 

classes, or video chatting and emailing with his family in the United Kingdom. 

See Sealed Juvenile, 781 F.3d at 756 (“The Internet is the means by which 

information is gleaned, and a critical aid to one’s education and social 

development.”). While access to the Internet could also allow Duke to view and 

trade despicable images of child pornography, there are means far short of an 

absolute, lifetime ban to prevent him from using the Internet for this purpose.2 

1 Duke proffers a broad reading of the word “computer” to include all electronic 

devices. This court, however, has refused to so broadly define the word computer, stating 

that “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 ‘common sense understanding of what 

activities the categor[y] encompass[es].’” Ellis, 720 F.3d at 225 (quoting Paul, 274 F.3d at 

167). 

2 On remand, the district court should consider and impose alternative measures 

previously approved by this court. Such measures include, but are not limited to, installing 

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The Government offers future modification as a means to alleviate any 

potential concern with the Internet ban’s scope or duration. While 18 U.S.C. 

§ 3583(e)(2) and Federal Rule of Criminal Procedure 32.1(c) provide a vehicle 

by which Duke can seek future modification of the Internet ban, the possibility 

of future modification has no bearing on whether the district court abused its 

discretion today. As the First Circuit explained:

Th[e] authority of . . . a future court to modify a sweeping ban on 

computer or internet use does not immunize the ban from an 

inquiry that evaluates the justification for the ban in the first 

instance. Otherwise, in the guise of delegation to a future decisionmaker, sentencing courts could abdicate their responsibility to 

assess the compatibility of supervised release conditions with the 

goals of sentencing. To approve problematic conditions because a 

judge . . . might, in her or his discretion, relax them in the future, 

undermines the command to sentencing courts to not deprive 

offenders of more liberty than is necessary to carry out the goals of 

supervised release.

United States v. Ramos, 763 F.3d 45, 61 (1st Cir. 2014).

In sum, the district court abused its discretion by imposing a condition 

of supervised release that prohibited Duke from accessing computers or the 

Internet for the rest of his life. Such a condition is not narrowly tailored and 

therefore imposes a greater deprivation than reasonably necessary to prevent 

computer monitoring and filtering software, subjecting Duke’s computer hard drive to 

random searches (which may already be encompassed by the imposed special condition 

requiring that Duke “[s]hall allow Probation access to any computer he uses, for monitoring 

purposes”), prohibiting Duke from accessing or possessing sexually stimulating material, and 

conditioning Duke’s computer and Internet usage on receiving prior approval from his 

probation officer or the district court. If the district court is inclined to impose the latter 

restriction, it should be mindful not to fashion a condition that would impose “the heavy 

burden of requiring prior written approval every time [Duke] must use a computer or access 

the Internet for . . . salutary purposes.” Sealed Juvenile, 781 F.3d at 757. Moreover, if the 

district court decides to delegate its duties to a probation officer, it should do so “in accordance 

with [18 U.S.C. § 3603] and [the] Sentencing Guidelines, rather than with unfettered power 

of interpretation.” Rodriguez, 558 F.3d at 417.

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recidivism and protect the public, especially in light of the ubiquity and 

importance of the Internet. 

B.

Duke next challenges the special condition prohibiting all “contact with 

anyone under the age of 18” for the rest of his life on overbreadth grounds. As 

with the Internet access ban, no other circuit court of appeals has upheld an 

absolute, lifetime associational ban. We have not upheld such a ban in a 

precedential opinion. But cf. United States v. Sonnier, 570 F. App’x 415, 416 

(5th Cir. 2014) (per curiam) (upholding an absolute, lifetime associational ban 

on plain error review). We decline to do so here.

This court has routinely upheld conditions limiting a defendant’s ability 

to associate with minors. See Ellis, 720 F.3d at 226 (affirming lifetime 

prohibition of unsupervised contact with minors without prior probation office 

approval); United States v. Esler, 531 F. App’x 502, 504 (5th Cir. 2013) 

(affirming district court’s imposition of a 20-year conditional association 

restriction); Rodriguez, 558 F.3d at 418 (upholding condition forbidding 

unsupervised contact with minors, including defendant’s children, without 

supervision of adult approved by the probation office); United States v. 

Buchanan, 485 F.3d 274, 288 (5th Cir. 2007) (approving an unconditional, 

three-year ban on plain error review); Paul, 274 F.3d at 167 (upholding an 

absolute, three-year association ban). In upholding these conditions, this court 

has emphasized the importance of protecting children as members of the public 

from potential future abuse. See Rodriguez, 558 F.3d at 417. However, this

court has also recognized that a defendant maintains at least some liberty 

interest in freely associating with minors. See id. at 418. Therefore, despite 

the premium placed on protecting children from future abuse, this court has 

required that association bans be narrowly tailored to achieve some balance 

between protecting the defendant’s liberty interest and the government’s 

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interest in protecting the public. Id.; see also Esler, 531 F. App’x at 504 

(concluding that in light of evidence that the defendant targeted children 

through a video game system, a conditional, 20-year association restriction was 

“a reasonable means of balancing [the defendant’s] rights and the goal of 

protecting minors.” (quoting Miller, 665 F.3d at 133) (internal quotation marks 

omitted)).

In Rodriguez, for example, the court approved a three-year association 

restriction that prohibited the defendant from “associating with any child or 

children under the age of eighteen, except in the presence and supervision of 

an adult specifically designated in writing by the probation officer.” 558 F.3d 

at 411. This condition placed restrictions on the defendant’s ability to contact 

his own children. Id. at 414. The court determined that the restriction was 

warranted in light of evidence that defendant sexually assaulted a 15-year-old 

girl and committed one act of violence against a pregnant woman. Id. at 417–

18. Considering this evidence and the conditional nature of the restriction, the 

court concluded that, “[a]ny liberty interest [the defendant] has in freely 

associating with minors and raising his own children is outweighed by the need 

to protect them.” Id. at 118.

In Ellis, the court concluded that a conditional, lifetime association 

restriction struck the right balance between protecting the public and 

respecting the defendant’s interest because the condition “reference[d] 

activities by which [the defendant] could initiate and carry on regular contact 

with children” and further allowed the defendant to “request permission from 

his probation officer for incidental contact in locations such as his place of work 

should the need arise.” 720 F.3d at 226. The court determined that these 

exceptions, permitting some contact, were important despite evidence that the 

defendant had a history of molesting young boys. Id. 

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Duke argues that the absolute, lifetime association ban is overly broad 

because, as written, it precludes incidental contact with minors. Relying on 

United States v. Windless, 719 F.3d 415, 422 (5th Cir. 2013), in which this court

concluded that a condition prohibiting direct or indirect contact with a minor 

swept so broadly that it would impose liability for incidental contact, Duke 

argues that inadvertent contact with a minor will subject him to consequences 

for violating this term of his supervised release. We disagree. 

In Paul, we construed the three-year, unconditional association ban at 

issue to exclude from its coverage incidental or casual encounters with minors. 

274 F.3d at 166. Contrary to Duke’s argument, this was not a case-specific 

holding. Instead, the court applied the well-established precept that 

“associational conditions do not extend to casual or chance meetings.” Id.

(quoting United States v. Loy, 237 F.3d 251, 269 (3d Cir. 2001)). Because Paul, 

not Windless, governs the outcome of this case,3 we construe the absolute, 

lifetime ban to permit incidental or chance encounters with minors. See Paul, 

274 F.3d at 166. 

Nevertheless, the unconditional, lifetime association ban is 

unreasonably broad, as it contravenes § 3583(d)’s requirement that a condition 

of supervised release be narrowly tailored. See Rodriguez, 558 F.3d at 413. As 

with the Internet ban, the association condition is narrowed neither by 

duration nor scope. It therefore fails to strike any balance between Duke’s 

liberty interest and the Government’s interest in protecting children. See id.

at 418. Furthermore, the record does not support imposing such a sweeping 

ban for such an extended duration of time. Unlike the defendants in Rodriguez

and Ellis, Duke does not have any history of direct sexual abuse of a child, and 

3 Windless, a decision that is in obvious tension with Paul, does not control. See United 

States v. Tex. Tech Univ., 171 F.3d 279, 285 n.9 (5th Cir. 1999) (“Where two panel decisions 

conflict, the prior decision constitutes the binding precedent.”).

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No. 14-30559

yet his condition is more onerous than the ones imposed on those defendants. 

This does not mean that Duke’s association with children cannot be limited in 

some way, especially given that the record contains evidence that Duke has 

engaged in inappropriate communications with a young girl believed to be 16 

years-old. However, it does suggest that without evidence of harmful physical 

contact, his liberty interest in freely associating with minors should not be so 

drastically circumscribed for such an extended period of time. See Ellis, 720 

F.3d at 225–26 (emphasizing the importance of the conditional nature of the 

lifetime restriction).

We therefore conclude that the district court abused its discretion by 

imposing an absolute, lifetime condition prohibiting Duke from having any 

contact with minors for the rest of his life.

IV.

For the reasons herein stated, we AFFIRM the procedural and 

substantive reasonableness of Duke’s sentence, VACATE the two absolute, 

lifetime bans imposed as special conditions of supervised release, and 

REMAND to the district court for resentencing proceedings consistent with 

this opinion.

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 Case: 14-30559 Document: 00513068681 Page: 17 Date Filed: 06/05/2015