FORTUNATO P. BENAVIDES, Circuit Judge.
This appeal concerns a 15-year-old juvenile who has been sentenced to detention and a subsequent period of juvenile delinquent supervision in connection with a conviction for abusive sexual contact with a minor who had not attained the age of 12 years. In this appeal, we review several special conditions imposed for juvenile delinquent supervision, a matter of first impression.
The Juvenile is a 15-year-old male who suffers from Oppositional Defiant Disorder and Bipolar Disorder, Type I, Mixed, with suicidal ideations and hallucinations. On November 3, 2013, while living on a military base with his family, the Juvenile had sexual contact with a four-year-old child. Because the offense occurred on a military base, he was charged in a sealed juvenile information with an act of juvenile delinquency by engaging or attempting to engage in a sexual act with a person who had not attained the age of 12 years, in violation of 18 U.S.C. §§ 2241(c), 5032 (2012). He pleaded guilty pursuant to a plea agreement to the lesser included offense of abusive sexual contact with a minor who had not attained the age of 12 years, in violation of 18 U.S.C. § 2244(a)(5) (2012) and § 5032.
A probation officer issued a predispositional report that described the offense conduct. The Juvenile admitted that he lied on top of the victim, that both had their pants around their ankles, that he placed his mouth on the victim's vagina, that he planned to put his penis into her vagina but changed his mind just before his sister entered the room, and that his erect penis was above the victim's vagina
After describing behavioral problems that included physical outbursts of anger and getting into fights with others, the report said the following about other sexually inappropriate behavior besides the offense conduct:
The report used the 2013 Sentencing Guidelines and calculated the advisory guidelines range as if the Juvenile was an adult. The report recommended a base offense level of 30 under U.S.S.G. §§ 2A3.1, 2A3.4, because the offense involved a criminal sexual act. Four levels were added under U.S.S.G. § 2A3.1(b)(2) because the victim was under the age of 12 years. With a three-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(a), the total offense level was 31. Because he had no prior criminal history, his criminal history score was I. With an offense level of 31 and a criminal history category of I, the advisory guidelines range was 108 to 135 months of imprisonment if the Defendant had been an adult. However, under 18 U.S.C. § 5037(c)(1) (2012) and the plea agreement, the maximum sentence that he could receive was detention until he reached 21 years of age and juvenile delinquent supervision until he reached 21 years of age. Defense counsel did not object to the report, but did file a dispositional memorandum concerning sentencing, which included as attachments, among other things, a copy of a report of a local mental health treatment facility explaining the Juvenile's history, diagnosis, and prognosis, and a letter from the Juvenile's parents.
The district court adjudicated the Juvenile as a juvenile delinquent and sentenced him to 18 months in the Garza County Juvenile Treatment Center in Post, Texas (where he is currently detained), and to a term of juvenile delinquent supervision "until his 21st birthday, in a non-secure facility such as AMIKids in Sandoval, New Mexico."
This Court has recognized that district courts have broad discretion in imposing conditions of supervised release, subject to
The district court may, under § 3563(c), "modify, reduce, or enlarge the conditions of a sentence of probation at any time prior to the expiration or termination of the term of probation."
On appeal, the Juvenile makes three major arguments. First, he argues that the district court failed to give reasons at the sentencing hearing for its decision to impose the special conditions, and thus failed to explain how the conditions were reasonably related to the factors in § 3553(a). Second, regarding the work, loitering, and computer and Internet conditions, the Juvenile argues that the special conditions of supervised release are not reasonably related to the goals of sentencing. Third, as to all the special conditions at issue before us, the Juvenile argues that the conditions were greater deprivations of liberty or property than reasonably necessary for the purposes indicated in § 3553(a)(2). We first discuss whether the district court failed to adequately provide reasons for imposing the special conditions, and then the special conditions themselves.
For each of the special conditions, the Juvenile argues that the district court did not give any reasons for imposing the conditions at the sentencing hearing, and thus failed to explain how the conditions were reasonably related to the factors of § 3553(a). Because this issue was not specifically raised before the district court, we review for plain error. See United States v. Alvarado, 691 F.3d 592, 598 (5th Cir. 2012). Plain-error review involves four steps:
Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) (internal quotation marks, brackets, and citations omitted).
The Juvenile has not been able to meet this high standard. Even though the district court did not provide reasons during the sentencing hearing, it did provide a statement of additional facts in the judgment to explain the imposition of these special conditions. In that statement, the district court gave the following reasons for the sentence imposed:
In addition, the district court noted that the sentencing decision was based on the recommendation of the U.S. Probation Department of the District of New Mexico, which "has an extensive history of working with juvenile offenders," and that the Bureau of Prisons had agreed with that recommendation.
Given that the district court's statement refers to the nature of the offense at hand, as well as the Juvenile's history of serious mental health issues, we can conclude that the district court considered the factors under § 3553(a). Because the Juvenile has not shown that providing reasons during the sentencing hearing would have changed the outcome of the case, no plain error has occurred here. See United States v. Mondragon-Santiago, 564 F.3d 357, 364-65 (5th Cir.2009); see also United States v. Gore, 298 F.3d 322, 325-26 (5th Cir.2002) (addressing the articulation requirement of § 3553(c) under plain-error review and finding that the district court's written explanation for departing from the sentencing guideline was "sufficient to allow meaningful appellate review" such that no plain error occurred). We now consider each of the special conditions at issue before us.
Special Condition 6 states, "The juvenile must not have contact with children under the age of 16 without prior written permission of the Probation Officer. He must immediately report unauthorized contact with children to the Probation Officer." Because the Juvenile specifically objected to this special condition, we review for abuse of discretion. See United States v. Rodriguez, 558 F.3d 408, 412 (5th Cir. 2009). That is, we determine "whether the district court imposed conditions that are substantively unreasonable, and, therefore, abused its discretion." Id.
The Juvenile argues that the restriction is a much greater deprivation of liberty or property than reasonably necessary for the purposes of § 3553(a)(2) for a number of reasons. First, he argues that the age cut-off is arbitrary because it was set at 16 despite any indication in the record that the offense involved anyone except the victim, who was four years old. Second, he argues that the restriction is overbroad
As to the challenge for arbitrariness, the record does not explicitly state how the district court settled on age 16 as the relevant age for the contact restriction. But the predispositional report does show, as noted in Part I, supra, that the Juvenile has a history of sexually inappropriate behavior directed toward other children, including his 12-year-old sister and girls at school who are likely close to his age. Because of this history of inappropriate conduct with children closer to 16 years old, and because "district courts have broad discretion in establishing conditions for supervised release," United States v. Miller, 665 F.3d 114, 132 (5th Cir.2011), we do not find the age cut-off to be arbitrary.
Turning to the Juvenile's challenge that the restriction is overbroad and would deprive him of much needed interaction with peers, the Government argues that any interest in associating with children his own age is outweighed by the need to protect children, and that the condition is warranted in light of the Juvenile's history and risk he poses to children. We agree with the Government. While it is important to ensure that the Juvenile is set on a path to becoming a healthy, productive, law-abiding citizen — one who is able to appropriately engage with and have healthy relationships with peers — such that recidivism does not occur,
Special Condition 7 states, "The juvenile is restricted from engaging in an occupation where he has access to children, without prior approval of the Probation Officer." Because the Juvenile did not specifically object to this special condition, we review for plain error. See Alvarado, 691 F.3d at 598.
The Juvenile argues that the occupation condition is not reasonably related to the factors of § 3553(a) because his offense bore no relation to work. While this is true, there is nevertheless a strong interest in preventing the Juvenile's access to children, even in his employment, and so we find that the Juvenile fails to establish plain error here.
The Juvenile argues that the condition imposed a much greater deprivation of liberty or property than reasonably necessary because he "will likely be unable to find employment since most employers of
Special Condition 8 states, "The juvenile must not loiter with[in] 100 feet of school yards, parks, playgrounds, arcades, or other places primarily used by children under the age of 16." Because the Juvenile specifically objected to this special condition, we review for abuse of discretion. See Rodriguez, 558 F.3d at 412.
The Juvenile argues that the restriction is not reasonably related to the factors in § 3553(a) because his offense had no relation to school. We agree with the Government, however, that the Juvenile's history of sending sexually explicit letters to girls at school means that he poses a threat to children at school and other places children might frequent. On this basis, we conclude that the restriction is reasonably related to the goal of protecting the public.
The Juvenile argues that the restriction is a much greater deprivation of liberty or property than is reasonably necessary for the purposes of § 3553(a)(2) because (1) he will not be able to return to school without room for exceptions, (2) he will not be able to engage in essential functions of a member of society, and (3) he will not be able to establish any relationships with peers. He argues that the cumulative impact on his social and mental development requires finding an abuse of discretion.
Applying the common understanding of the word "loiter," we find no abuse of discretion as to this condition. The relevant definitions of "loiter" from Merriam-Webster are "to remain in an area for no obvious reason" and "to lag behind." Loiter, Merriam-Webster, http://www.merriamwebster.com/dictionary/loiter (last visited Feb. 20, 2015). With respect to the Juvenile's first challenge, the prohibition against loitering would not prevent the Juvenile from attending school because he would not be at a school to remain there for no obvious reason or to merely lag behind; he would be there to attend as a student. With respect to his second challenge — that the condition will prevent him from engaging in essential functions of a member of society — the specific language of the condition suggests otherwise. The type of places delineated as well as the limiting language of the condition imply that this condition would not restrict the Juvenile from going to a shopping center or anywhere else where children may be present, but rather from loitering near places primarily used by children under 16. Finally, regarding the Juvenile's third challenge, this condition will not prevent him from establishing any relationships with peers. The condition leaves open the possibility for him to go to — and even loiter near — places primarily used by people aged 16 and over. Since the Juvenile will be around 16 or 17 years old when he leaves the detention center and moves to a non-secure facility, this condition will not prevent him from interacting with people
The special conditions restricting the Juvenile's use of computers and the Internet — all challenged on appeal — are as follows:
Because the Juvenile specifically objected to these special conditions, we review for abuse of discretion. See Rodriguez, 558 F.3d at 412.
The Juvenile contends that these conditions are not reasonably related to the factors in § 3553(a) because his offense did not involve the use of a computer or the Internet. He relies on United States v. Salazar, 743 F.3d 445 (5th Cir. 2014), and United States v. Tang, 718 F.3d 476 (5th Cir.2013) (per curiam), cases in which this Court found that Internet restrictions were not reasonably related to the § 3553(a) factors for defendants convicted of failing to register as
The Juvenile gives four specific objections that these conditions are much greater deprivations of liberty or property than reasonably necessary: (1) the restrictions are not limited to sexually explicit conduct; (2) every keystroke and other action on his computer will be monitored; (3) the conditions allow the probation officer to enter the Juvenile's home and seize his computer at any time; and (4) the Juvenile will have to give access to his financial records even when there is no suspicion of any improper behavior.
In arguing that the restrictions are overbroad in substantive scope, the Juvenile argues that "[r]equiring prior written approval for everyday functions that use the internet[] will entomb Juvenile Appellant and prevent him from job hunting, conducting class assignments, or even emailing with his doctors and psychiatrists."
The Juvenile's second challenge is that it is overbroad to monitor every action on his computer.
As to the Juvenile's third challenge — that the probation officer could seize his computer at any time
Finally, the Juvenile complains generally that the special conditions are overbroad
For the foregoing reasons, we AFFIRM AS MODIFIED with instructions that any enforcement of the conditions be subject to our interpretation, determinations, and instructions contained herein. In affirming, we reiterate that the Juvenile may seek modifications to any of the conditions under § 3563(c), and that the district court may lessen the burden of these restrictions if the Juvenile's behavior improves over time.