Filed: Oct. 06, 2021
Latest Update: Oct. 07, 2021
Case: 21-60208 Document: 00516044846 Page: 1 Date Filed: 10/06/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 6, 2021
No. 21-60208 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Taylor Hidalgo,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:20-CR-100-1
Before Barksdale, Costa, and Engelhardt, Circuit Judges.
Per Curiam:*
In 2019, Taylor Hidalgo pleaded guilty to failing to register as a sex
offender, in violation of 18 U.S.C. § 2250(a). He was sentenced to, inter alia,
19 months’ imprisonment and five years’ supervised release. The district
court imposed special conditions of supervised release prohibiting, inter alia,
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 21-60208
Hidalgo from: possession or perusal of material that depicts or describes
“sexually explicit conduct” or “child pornography”; possessing or using a
computer or other internet connection device to access the internet (except
with prior approval of probation officer in connection with authorized
employment); and any unsupervised contact with children under the age of
18 (except unanticipated or incidental contact or in the presence of an
approved adult). He did not appeal.
The Government moved to revoke Hildalgo’s probation in January
2021, asserting he violated the above-described special conditions, as well as
two mandatory conditions proscribing possessing a firearm and using a
controlled substance. Hidalgo admitted violating the two mandatory
conditions but contested violating the special conditions, asserting: he only
possessed an iPhone and created Social Media accounts; the court did not
consider the minor was a family member and his original offense was six years
ago; and the alleged violation was a private act not involving or harming
others. The district court revoked his probation and sentenced him to, inter
alia, 14 months’ imprisonment and eight years’ supervised release. The
special conditions in the judgment for his underlying conviction were
reimposed.
Hidalgo contests the above-described three special conditions
imposed at his original sentencing and reimposed upon revocation of his
supervised release. He maintains revocation of supervised release cannot be
based on these special conditions because they are unconstitutional as
applied. Further, he challenges those special conditions’ being reimposed.
Because Hidalgo did not object to these special conditions at the time
of sentencing on his original conviction, our court can consider his challenge
“only on an ‘as applied’ basis and only as they pertain to [our] review of his
revocation proceeding”. United States v. Brigham, 569 F.3d 220, 232 (5th
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Cir. 2009) (citing United States v. Locke, 482 F.3d 764, 766–67 (5th Cir.
2007)). Revocation decisions are reviewed for abuse of discretion; legal or
constitutional challenges, de novo.
Id.
As noted in part, rulings on preserved challenges to conditions of
supervised release are reviewed for abuse of discretion. United States v.
Gordon, 838 F.3d 597, 604 (5th Cir. 2016). A party can preserve error by
informing the court of the desired action or objecting to the court’s action
and stating the grounds for the objection. Holguin-Hernandez v. United
States,
140 S. Ct. 762, 764 (2020). Preservation of error does not “require
an objecting party to use any particular language or even to wait until the
court issues its ruling”.
Id. at 766. The core question for determining
whether an error was preserved is “simply whether the claimed error was
‘brought to the court’s attention’”.
Id. (quoting Fed. R. Crim. P. 52 (b)).
As discussed supra, Hidalgo admitted for the revocation proceeding
to violating two mandatory conditions of his supervised release, which he
does not contest in this appeal. His admitted possession of a firearm, in
violation of federal law, required the mandatory revocation of his supervised
release, even without considering his violation of the three challenged special
conditions. See 18 U.S.C. § 3583(g)(2); United States v. Garner, 969 F.3d 550,
551–52 (5th Cir. 2020) (explaining revocation mandatory when defendant
“possesses a firearm in violation of federal law or a condition of supervised
release”). Therefore, the decision to revoke Hidalgo’s supervised release
was mandatory and not an abuse of discretion. See United States v. Jang,
574
F.3d 263, 266 (5th Cir. 2009) (explaining evidence of mandatory-condition
violation enough for revocation).
But, because Hidalgo’s violation of these challenged special
conditions influenced the sentence imposed on revocation, our court
considers his “as applied” assertions. Special condition 11, prohibiting
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No. 21-60208
Hidalgo’s possessing material depicting sexually explicit conduct, was
reasonably related to the history and circumstances of his underlying sex
offense of sending pornographic images to a minor and did not involve a
greater deprivation of liberty than is reasonably necessary to carry out the
purposes of deterrence and public protection. See 18 U.S.C. § 3583(d)(1)
(additional conditions of supervised release allowed when reasonably related
to 18 U.S.C. § 3553 sentencing factors); 18 U.S.C. § 3553(a)(1), (a)(2)(B)-
(D) (sentencing factors include: deterrence; public protection; and, training,
medical care, or treatment necessary for defendant); United States v.
Caravayo, 809 F.3d 269, 273 (5th Cir. 2015) (explaining special condition
must be “reasonably related to § 3553’s factors” and not a “greater
deprivation of liberty than is reasonably necessary to achieve the three
statutory goals of § 3583(d)(2)”). This condition is not unconstitutional as
applied to Hidalgo. See United States v. Abbate,
970 F.3d 601, 603–06 (5th
Cir. 2020) (explaining restricting possession of material depicting sexually
explicit conduct reasonable when defendant’s crime is “sexual in nature”);
see also United States v. Phipps,
319 F.3d 177, 181, 192–93 (5th Cir. 2003) (on
plain-error review, explaining supervised-release condition prohibiting
possession of sexually oriented or stimulating materials did not violate due
process).
Regarding challenged special condition four, a ban on internet use
must be “narrowly tailored either by scope or by duration”. United States v.
Duke, 788 F.3d 392, 399 (5th Cir. 2015). This special condition, limiting
Hidalgo’s access to the internet, was conditional, allowing him to seek
approval from the probation officer for employment purposes. The condition
was also for a limited duration of five years and was reasonably related to his
original offense leading to his sex-offender status (sending pornographic
images and videos to 14-year-old-girl). This condition is, therefore, not
unconstitutional as applied to Hidalgo. See United States v. Paul,
274 F.3d
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No. 21-60208
155, 167–70 (5th Cir. 2001) (holding three-year ban on computers and
internet connection devices reasonable in relation to defendant’s child
pornography offense); Locke, 482 F.3d at 768 (explaining internet prohibition
discourages recidivism and protects public).
The final challenged special condition, number nine, barring Hidalgo
from unsupervised contact with children under 18 years old, is not
unconstitutional as applied to Hidalgo in the light of his underlying sex
offense of sending pornographic material to a minor. See Paul, 274 F.3d at
165–67 (affirming prohibition against direct and indirect contact with minors
in child-pornography possession action); United States v. Fields, 777 F.3d 799,
801–07 (5th Cir. 2015) (affirming condition limiting defendant’s contact with
minors after repeated convictions for failing to register as sex offender).
In addition, Hidalgo maintains the reimposition of these three special
conditions on revocation was unreasonable. His objections for the revocation
proceeding about these special conditions imposed on original sentencing
were sufficient to bring to the district court’s attention the issue of
reimposing such conditions.
For the revocation proceeding, the court considered the § 3553(a)
framework in ordering these special conditions to determine what was
necessary. See Caravayo, 809 F.3d at 273 (“A special condition must also
‘involve no greater deprivation of liberty than is reasonably necessary’ to
achieve the latter three statutory goals of § 3553(a)(2).” (citation omitted)).
The court considered the nature and circumstances of the original offense,
Hidalgo’s history and characteristics, protection of the public, deterrence,
and any needed treatment or education, before reimposing the three special
conditions ordered by the original sentencing court. Therefore, there was no
abuse of discretion in reimposing these special conditions.
AFFIRMED.
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