### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-10162

UNITED STATES OF AMERICA, Plaintiff – Appellee
v. TODD WAYNE ELLIS, Defendant – Appellant

Appeal from the United States District Court f or the Northern District of Texas USDC No. 2:11-CR-35-1

Before JOLLY, GARZA, and OWEN, Circuit Judges. PER CURIAM: * Todd Wayne Ellis pleaded guilty t o p o ssession 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 differ e n t investigation, l aw enforcement agents downloaded videos depicting child pornography t h r o u gh a peer-to-peer network and discovered Ellis’ s computer was the s ource of the videos. Law U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D May20, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et f orth in 5 T H C I R

. R. 47. 5. 4. Case: 12-10162 Document: 00512247902 Page: 1 Date Filed: 05/20/2013No. 12-10162

enforcement agen t s t h e n executed a search w arrant of Ellis’s residence while Ellis was present. Ellis admitted his use o f the p eer-to-peer network for child pornography. The agents interviewed Ellis’s 19-year-old n ephew, R. Brecheisen, while conducting the searc h

. B r e c heisen, who along w ith his immediate family resided in another home o n Ellis’s property, revealed that Ellis m olested him o n t he property when he was 12 or 13 yea r s old. Brecheisen also r e vealed Ellis molested his c ousin and another boy. Br e c h e i sen’s father then c o rroborated these statements and added that Ellis molested Brecheisen’s b rother a long with t h e o t h e r b o ys when they were all 1 2 or 13 years o ld. In addition, the agents found dozens of v i deos and images depicting child pornography on Ellis’s computer. E l l is was c harged with one count of r eceipt a nd distribution of c h i l d pornography and one count of possess i o n o f child pornography. He pleaded guilty to only the possession charge pursuant to a p lea a g r e e m e n t

. His pre-sentence report (“ P S R” ) indicated he is c ertified as a registered polysomograph technician and was previously employed in th at capacity. The PSR also indicated Ellis reported he was sexually ab u s e d a s a child but never received counseling. The PSR included B recheisen’s and Brecheisen’s father’s allegations, t o which Ellis objected as untrue i n his written objections to t h e PSR. I n a n addendum, the PSR indicated that Brecheisen told the agents he installed a l ock o n his door at age 17 because of his a p p r e h ension of Ellis’s continued sexual propositions. The probation officer who prepared the PSR contacted B recheisen, who confirmed the abuse b ut r e fused to elaborate further.

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At sentencing, Ellis objected to the test i m o n y of the officer who interviewed Brecheisen and his father on hearsay a n d C o n f rontation Clause grounds. The district court overruled the objection and the agent t estified that Brecheisen said the abuse o c curred on several o ccasions, included Ellis t ouching Brecheisen’s g e nitals and engaging in oral sex, a n d c ontinued for a long time. The agent testified that Brecheisen said Ellis propositioned him when he was 17 years old a nd made a sexually exp l i c i t c o m ment to him when he was 18 years old, and, a s a result, Brecheisen put a l o c k o n his door. The district court sentenced Ellis to the statutory maximum o f 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 d efendant s h all participate in sex o f f ender treatment s e rvices as directed by the p robation officer until s uccessfull y di s c h ar g e d

. Th e s e s e rvi c e s m ay i n c lude psycho-physiological tes ti n g (i.e. clinical polygraph, plethysmograph, and the ABEL scree n) t o monitor the defendant’s compliance, treatment progress, and risk to the community. The defendant s h a ll contribute to the costs of services rendered (copayment) a t a rate of at least 5 .00 p er month. The defendant shall have no contact with persons under the age of 18, including by correspond e n c e , telephone, internet, electronic communication, or through third p arties. The defendant also shall n ot hav e a c c ess to or loiter near school grounds, parks, arcades, playgrounds, amusement parks or other p l aces where children m a y frequently congregate. The defendant shall neither seek nor m a i n t ain employment o r volunteer work at a ny location and/or activity where persons under the age of 18 c o n gr e gate, without prior permission of the probation officer. Furthermore, th e defendant shall not d ate or befriend anyone who has children under the age of 18, without prior permission of the probation officer.

3 Case: 12-10162 Document: 00512247902 Page: 3 Date Filed: 05/20/2013No. 12-10162 T h e defendant shall not have any form of unsupervise d contact with persons under the age of 18 at any location, including but not limited to, the d efendant’s residence, place of e mployment, and public places where minors frequent or congregate , w i t hout prior permission of the probation officer. The d efendant shall neither possess nor h a v e u n der his/her control any sexually oriented, or sexually stimulating m aterials of adults or children. This may include visual, auditory, t e l e p h onic, electronic media, e mail, chat communications, instant messaging, or computer programs. The defendant shall not patronize any place where such material or entertainment i s available. The defendant shall not use any sex-related telephone numbers. The d efendant shall not possess, have a cc e s s t o , or utilize a computer or internet c onnection device including, but not limited to Xbox, PlayStation, Nintendo, or similar device without permission of the court. The d efendant shall participate in m ental health treatment s e rvices a s directed by the probation officer u ntil successful l y discharged. These services may include medications prescribed by a licensed p hysician. The d efendant shall contribute t o the costs of services rendered (copayment) at a rate of at least $5.00 per month. The district court stated life t i m e supervised release “will e nsure that [Ellis] compl[ies] with the sex offender r egistration law and not have access to

c hil dr e n” a n d “ [ s ] e x o ffender and treatment conditions ar e r e c o m m e n d e d b e c au s e of the nature o f t h e o ffense.” Ellis’s counsel objected “[t]o the lifetime of supervision and the c onditions therein a s being exc e s s i v e,” 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. 2 011). “T o preserve error, an objection must b e s ufficiently specific

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to alert the dis t r i c t c o u rt to the nature of the a lleged error and to provide an opportunity for c orrection.” United States v. N ea l , 5 78 F.3d 270, 272 (5th Cir. 2009). If an error was not p reserved, our review is for plain error so “we must determine ( 1) if there was error, (2) if it was plain, (3) if th e e r r o r a f f e c t s substantial rights, and (4) if allowing that error to s tand 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 i m posing conditions of supervised release, though extensive, is s ubject to statutory requirements. U nited States v. Paul , 274 F.3d 155, 164 (5th Cir. 2001). The conditions of supervised r elease must be related to one of four factors: (1) “the nature and circumstances o f the offense and the history and characteristics of the defendant;” ( 2) “the need

. . . to afford adequate d eterrence to criminal conduct;” ( 3) “the n eed

. . . to protect the public from further c rime of the defendant;” and (4) “the need

. . . to provide the defendant with needed e ducational or vocational training, medical c a re, or other correctional treatment in the most effective manner.” 18 U.S.C. §§ 3583(d)(1), 3 5 5 3 ( a)(1) and (2)(B)–(D); United States v. Weatherton , 567 F.3d 149, 153 ( 5 t h Cir. 2 009) (explaining a condition of release “must be reasonably related to one of four factors”). In addition, the c o n d i t i o n s may n o t impose a “greater deprivation of liberty than is reasonably necessary f or the purposes set f

orth in” § 3 553(a). 18 U.S.C. § 3583(d)(2). Ellis appeals the conditions recounted above, and we address each in turn.

5 Case: 12-10162 Document: 00512247902 Page: 5 Date Filed: 05/20/2013No. 12-10162 A Ellis appeals s ix conditions on the grounds that they a re not reasonably related to the § 3553(a) factors a nd a re a greater d epravation of liberty than necessary under § 3583(d)(2). Becau se Ellis objected before the district court,

our review is for abuse of disc r e t ion. Miller , 6 65 F.3d at 126. We are not convinced any of his challenges on these grounds have merit. First, E llis appeals the special condition that he not “possess, have access to, o r utilize a computer or internet c onnection device

. . . without prior approval of the court.” Contrary to Ellis’s c oncern in his brief, modern devices such as
cars a nd a ppliances do not come under t h e p urview of the ban because the categorical term “computers” is subject to a “commonsense understand ing of what activities the categor[y] encompass[es].” Paul , 274 F.3d at 167. H owever, restrictions on I n ternet and computer use a re often imposed in cases i nvolving child p o rnography, and this circuit has routinely upheld such restrictions. E.g. Miller 6 65 F.3d at 1 26, 1 33–34 (holding district court did not ab u se discretion in i m posing twenty-five year ban on computer use w ithout p r obati o n o f fice approval); see also U

. S

. S E N T E N C IN G G U ID E L IN E S MA N UAL § 5D1.3(d)(7)(B) (2011) (“A condition limiting the use of a computer or a n interactive computer service [is recommended] in cases in which the defendant used such items.”). Second, Ellis appeals the condition requiring him to “have no c ontact with
persons under the age of 1 8, i ncluding by c orrespondence, t elephone, 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, 4 1 7

– 1 8 ( 5 th C ir . 2 009) (affirming three-year prohibition on unsupervised co nt a c t with children, including the defendant’s own daughter); U nited States v.

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Buchanan , 4 85 F.3d 274, 287–88 (5th C i r . 2 0 0 7) (affirming three-year ban on
uns u p e rvised contact with c hildren without exception for permission from probation officer). Ellis’s ban does not contain an exception for p ermitted c ontact and is, along with the other conditions, for life. Importantly, however, it references activities b y which Ellis could initiate and c arry on regula r c o n tact with children. By contrast, the condition in the s ubsequent p aragraph, which prohibits “unsupervised contact

. . . at a ny location” without permission, makes clear t hat Ellis may in fact r equest permission from h is probation officer for incidental contact in locations such as his place of work should the need arise. Third, Ellis appeals the condition that p r o h ibits him f rom “access to or loiter[ing] near school grounds, parks, a rcades, p laygrounds, amusement parks,

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

or maintain[ing] employment or volunteer work a t any location

. . . where
person s u n d e r t he a ge o f 1 8 congregate, without prior permission of the probation officer.” Although i t is true there is no evidence Ellis targeted children in p ublic places, his crime and the e vidence of past molestation is suff i c i ent

r e a s o n f or the district court t o be c oncerned with his access to c h ildren ab s e n t permission. See P

a ul , 274 F.3d at 167 (“The s upervised r elease conditions restricting Paul’s contact with minors

. . . are reasonably necessary in light of the nature a nd circumstances o f Paul’s offense and the legit i m a t e 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 c hildren under the age of 18, without prior

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p e r m i ssion of the probation o fficer.” 1 This r estriction is reasonably related t o public safety because “Congress has made clear that c h ildren . . . are m embers of the public it seeks to protect.” Rodriguez , 558 F.3d at 4 17. Even though the conditions contain separate restriction s on contact with minors, the evidence showed Ellis has a proclivity to use close relationships to reach children, as he reached B recheisen and his brother through his relationship with their family. Therefore, restricting his c ontact with o ther adults who have minor children is related to public safety. Cf. United States v. W o l f Ch i l d , 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 c ondition p r o hib iting him f rom possessing sexually stimulating material because the ban c ould encompass w o r k s of art and literature and prevent h im f ro m p a t ronizing establishments such a s grocery stores that may sell s uch material. This circuit h as repeatedly stated conditions of supervised release, including “sexually oriented or sexua l l y stimulating materials,” should “be read in a commonse n s e w a y . ” United States v . Phipps , 319 F.3d 177, 193 (5th Cir. 2003) (citing Paul , 274 F.3d at 166–67). “Such a construction c ompels us to disagre e w i t h d efendants’ suggestion that the condition could a p ply to newspapers and magazines that contain lingerie advertisements or even to the ‘Song of Solomon.’ Moreover, the prohibition on patronizing sexually oriented establishments r efers, with sufficient p recision, to

1 Ellis ap peals t his cond ition on vaguenes s ground s as w ell, w hich w e ad d res s below

. See Part III. B a nte

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places s uch as strip clubs and adult t heaters or bookstores.” Phipps , 319 F.3d at 193. The same “commonsense” understanding applies here. Id

. In addition, Ellis asserts this condition is not reasonably related to his offence. Because E llis’s crime was sexual in nature it was r easonable for the district court to rest r i c t Ellis’s access t o sexually s timulating material more broadly in an effort to pre v e n t f u ture crimes or aid in his rehabilitation. See Un i t e d States v. Boston , 494 F.3d 660, 668 (8th Cir. 2007) (“Given Boston’s history of sexual offenses and the desire to deter h i m f r o m t h is conduct in the future, th e c ondition i n prohibiting h is access t o sexually explicit material involving adults is n ot overly broad.”); see also Miller , 665 F.3d at 1 36 (holding, where defendant’s vide o s included both children and a dults and condition forbade access to adult pornography, “[e]ven were we to r e view 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 p rograms, p a rticul a r l y the possibility he might be required to s ub m it t o p s ych o tr o p i c m e dication and p sycho-physiological testing, i ncluding p enile plethysmographic t esting. This challenge is not ripe for review because Ellis may n ever be subjected to such medication or testing. See United S tates v. Carmichael , 343 F.3d 756, 761 (5th C i r . 2003). I f he is required to submit to such m e dication or t esting, he may petition the district court for a modi f i c a t i o n o f his conditions. 18 U.S.C. § 3583(e)(2); F E D
. R. C R I M
. P. 32.1(c);

see United States v. Rhodes , 552 F.3d 6 24, 628–29 (7th Cir. 2 0 0 9 ) ( “As the condition is stated, there i s a fair amount of discretion r egarding the techniques to b e utilized.

. . . [W]e would do well to await a m ore concrete presentation of

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the i s sue. Regardless, Rhodes can later petition the district court to modify the condition.” (citations omitted)). I n a d d i tion, Ellis a ppeals on the ground that the cumulative effect of al l these c o nditions is a greater depravation of liberty than necessary. This circuit has repeatedly s tated that the district court is in a far better p osition to determine the proper terms of supervised release, provided it does s o within its statutory authority. See United State s v. Mondragon-Santiago , 564 F.3d 357, 360–61 (5th Cir. 2009). Moreover, since we have determined that none of these conditions are unre a sonable, 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 p rior permission o f the p robation officer”

on v agueness grounds. The Government does not defend this condition in its brief. Because he did not object on vagueness grounds b efore the district court, our review is for plain error. Alvarado , 691 F.3d at 598. While a condition n eed not s pell out in excruciating d e tail the prohibited conduct, “[r]estrictions on an offender’s ability to interact with particular groups of people

. . . must provide fair notice of the p r ohibited conduct.” P aul , 274 F.3d at 166 (internal quotation marks omitted). With that i n mind, we hold any error in imposing this c ondition i s n o t p lain because it is not “clear o r obvious.” 2 Unite d S tates v. Wilcox , 631 F.3d 740, 752 (5th Cir. 2011); cf. United States v.

2 H ad Ellis objected in the f irs t ins tance, it is clear at leas t the term “bef riend” is vague and may have been s ubject to v acatur and rem and to the d is trict court f or greater s p ecif

icity. The d is trict court, in its s ole d is cretion, m ay w ant to cons id er rep hras ing this cond ition w ith greater s pecif

icity to avoid any f

uture ques tions

.

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Reeves , 591 F.3d 77, 81 (2d Cir. 2010) (holding it is “impossible to agree on the
proper application of a release c ondition t riggered b y e ntry into a ‘significant romanti c r e l ationship.’ What makes a relationship ‘ romantic,’ let alone ‘significant ’ i n its romantic d epth, can be the subject of endless debate that

v a ries across generations, regions, and g enders.”). “[A]ppellate courts give considerable deference to the judgment of the district court when conduct i ng p lain error r eview.” Wilcox , 631 F.3d at 751–52. Ac c ordingly, we hold th e district court did not commit plain error in imposing this condition. IV Ellis asserts h is Confrontation Clause rights were violated because the district court sentenced him b ased on t estimonial hearsay statements made by his nephew t o law enforcement agents without affording Ellis an opportunity to cross-examine h is nephew. U.S. C O N S T
. amend VI. This assertion is foreclosed by our precedent. United S t a t e s v. Mitchell , 484 F.3d 762, 7 76 ( 5th Cir. 2007) (holding Confr o n t ation C lause does not apply at sentencing and district court may rely on hearsay). V Ellis asserts his sentence is substantively unreasonable because the applicable Guideline l acks an empirical basis and regularly produces sentences that are higher than n ecessary to achieve the goals specified in § 3553(a). U.S. S E N T E N C I N G G U I D E L I N E S MA N U A L § 2G2.2 (2011). This issue is f oreclosed by our precedent. Miller , 665 F.3d at 121 (“Empirically based or not, the G u i d elines remain the Guidelines.”); United States v. Duarte , 569 F.3d 5 28, 529–31 (5th Cir. 2 0 0 9) (rejecting the notion that this court should examine empirical basis behind each Guidelines provision before applying presumption of reasonableness).

11 Case: 12-10162 Document: 00512247902 Page: 11 Date Filed: 05/20/2013No. 12-10162 VI For these reasons, we AFFIRM.

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