United States v. Joseph Poignant , 676 F. App'x 832 ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-10669
Non-Argument Calendar
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D.C. Docket No. 2:03-cr-14068-DLG-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSEPH POIGNANT,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(January 18, 2017)
Before TJOFLAT, JULIE CARNES and JILL PRYOR, Circuit Judges.
PER CURIAM:
Poignant pled guilty to using a computer to persuade, induce, entice, and
coerce a minor to engage in sexual activity in violation of 18 U.S.C. § 2422(b).
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The district court sentenced Poignant to sixty months’ imprisonment, followed by
ten years of supervised release. The court imposed the standard conditions of
supervision as well as several special conditions. Joseph Poignant appealed his
special condition of supervised release prohibiting him from buying, selling,
exchanging, possessing, trading, or producing visual depictions of minors or adults
engaged in sexually explicit conduct, reimposed after he violated the conditions of
his supervised release for the second time. On appeal, Poignant argued that the
district court abused its discretion in imposing this supervised release condition.
He contended that the record did not support the imposition of this condition
because the underlying offense did not involve adult pornography. He also stated
that the condition constituted a greater-than-necessary deprivation of his
constitutional liberties. Upon review of the record and consideration of the parties’
briefs, we affirm.
We typically review the imposition of special conditions of supervised
release for abuse of discretion. United States v. Taylor, 338 F.3d 1280, 1283 (11th
Cir. 2003). Under this standard of review, we refrain from reversing unless we
have a “definite and firm conviction that the district court committed a clear error
of judgment in the conclusion it reached.” Id. (brackets and quotation omitted).
However, where a defendant fails to clearly articulate the grounds for an objection
to a condition of supervised release in the district court, we only review the
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imposition of the condition for plain error. United States v. Carpenter, 803 F.3d
1224, 1237–38 (11th Cir. 2015). Under plain-error review, we have the discretion
to correct an error where (1) an error occurred; (2) the error was plain; and (3) the
error affects substantial rights. United States v. Olano, 507 U.S. 725, 732–36
(1993). An error is plain when “contrary to explicit statutory provisions or to on-
point precedent in this Court or the Supreme Court.” United States v. Hoffman,
710 F.3d 1228, 1232 (11th Cir. 2013) (quotation omitted).
A district court may order special conditions of supervised release so long as
each condition: (1) is reasonably related to the nature and circumstances of the
offense, history, and characteristics of the defendant, the need for adequate
deterrence, the need to protect the public, and the need to provide the defendant
with necessary medical care, training, or correctional treatment in an effective
manner; (2) involves no greater deprivation of liberty than is reasonably necessary
to accomplish the goals of deterrence, protecting the public, and rehabilitation; and
(3) is consistent with any pertinent policy statements issued by the Sentencing
Commission. 18 U.S.C. § 3583(d)(1)–(3); see 18 U.S.C. § 3553(a)(1), (2)(B)–(D).
Each relevant § 3353(a) factor need not support a special condition; rather, each
factor is weighed as an independent consideration. United States v. Tome, 611
F.3d 1371, 1376 (11th Cir. 2010). While a condition of supervised release “should
not unduly restrict a defendant’s liberty, a condition is not invalid simply because
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it affects a probationer’s ability to exercise constitutionally protected rights.” Id.
(quotation omitted).
This Court once before reviewed a condition of supervised release barring
sexually explicit material in a published opinion, although only for plain error.
United States v. Carpenter, 803 F.3d 1224, 1237 (11th Cir. 2015). In Carpenter,
the defendant was convicted of possessing child pornography. 803 F.3d at 1230,
1239–40. We held that the district court did not plainly err in imposing as a
condition of supervised release that the defendant not access “depictions of minors
or adults engaged in sexually explicit conduct.” Id. Because the issue was not
properly preserved at the district court and no controlling authority from this Court
or the Supreme Court established that the district court erred in imposing the
condition, we stated that we “need not, and do not, decide whether the court indeed
erred.” Id. at 1238–39.
Though we have not reviewed special conditions banning sexually explicit
material for abuse of discretion, we previously addressed whether conditions in
other circumstances amounted to an abuse of discretion for being unrelated to the
sentencing factors or entailing a greater deprivation of liberty than necessary. This
Court vacated a supervised release condition that we held as so vague and broad
that a court could not determine if it met the statutory requirements. See United
States v. Ridgeway, 319 F.3d 1313, 1316–17 (11th Cir. 2003) (discussing the
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factors in imposing special conditions of supervised release under U.S.S.G. §
5D1.3(b), which mirrors the relevant language in 18 U.S.C. § 3553(a)). In
Ridgeway, the district court convicted the defendant of possessing an unregistered
firearm. 319 F.3d at 1314. As a condition of supervised release, the court ordered
the defendant to “refrain from conduct or activities that would give reasonable
cause to believe [he] violated any criminal law.” Id. at 1314. The court vacated
the condition because it proscribed a range of behavior so broad it was inherently
vague, and a court could not determine if the condition reasonably related to the
sentencing factors or entailed no greater deprivation of liberty than necessary. Id.
at 1316–17.
This Court previously upheld conditions relating to the sentencing factors
where the prohibited activity was central to the defendant’s offense. See Taylor,
338 F.3d at 1284–85. In Taylor, the district court convicted a defendant of using
the internet to transmit information about a minor with the intent to encourage
others to engage in criminal sexual activity with the minor. Id. at 1285–86. On
appeal, we upheld a special condition prohibiting the defendant from using or
possessing a computer with internet access. Id. This Court held that the district
court did not abuse its discretion in imposing the condition because the enabled the
defendants crime and the defendant capitalized on the effectiveness of the internet
as a tool to commit the crime and reach pedophiles. Id.
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Here, while Poignant objected to the adult pornography condition at the
most recent revocation hearing, he failed to object to or appeal the same condition
when it was imposed at his initial sentencing and at the revocation hearing
following his first violation of supervised release. Although Poignant is now
subject to a new sentence, his arguments regarding the special condition focus not
on whether it was appropriate to reimpose the condition, but whether the condition
was initially appropriate given the underlying offense conduct. This Court has not
addressed the proper standard of review for the reimposition of special conditions
to which the defendant failed to object when initially imposed. Although it is
unclear whether this Court should review the district court’s imposition of this
special condition for plain error or abuse of discretion, it need not decide which
standard of review applies because Poignant’s claim fails under both the plain error
and less-deferential abuse-of-discretion standard.
If the issue was not properly preserved and plain error review applies, there
is no controlling precedent from either the Supreme Court or Eleventh Circuit
indicating the impropriety of imposing a prohibition on possessing visual
depictions of adults engaged in sexually explicit conduct as a condition of
supervised release for a defendant convicted of enticement of a minor. Hoffman,
710 F.3d at 1232; see Carpenter, 803 F.3d at 1240–41 (rejecting a challenge to a
special condition prohibiting depictions of adults engaged in sexually explicit
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conduct and noting that there can be no plain error on this issue, as there is a circuit
split and no binding precedent). Thus, the district court is affirmed under plain
error review.
If Poignant properly preserved the issue and the abuse of discretion standard
applies, Poignant failed to demonstrate that the district court abused its discretion
in prohibiting him from viewing, possessing, or producing visual depictions of
adults engaged in sexually explicit conduct. As an initial matter, the Eleventh
Circuit does not require the district court to articulate specific reasons for
reimposing a particular condition. See Taylor, 338 F.3d at 1283. Furthermore, the
record indicates that a prohibition against depictions of adults engaged in sexually
explicit conduct is reasonably related to the nature and circumstances of the
offense, the need to protect the public, and the need to rehabilitate the defendant.
See 18 U.S.C. §§ 3583(d)(1), 3553(a)(1), 2(C)–(D). This Court has indicated that
cases involving children or child pornography are distinct from cases with records
void of abusing or possessing pornography in the past or in the commission of the
offense. See Carpenter, 803 F.3d at 1240. Although Poignant’s conviction, unlike
that in Carpenter, does not directly involve child pornography or actual abuse of a
child, the record provides evidence that the condition is reasonably related to
several relevant § 3553(a) factors.
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First, while the specific charge to which Poignant pled guilty, enticement of
a minor, did not involve child pornography or actual contact with a child, the
presentence report indicated that Poignant intended to have sex with a child,
provided evidence that Poignant molested his then-ten-year-old daughter, and that
his computer contained twenty to twenty five images of child pornography.
Second, the report and recommendation (R&R) issued concerning Poignant’s first
violation of supervised release stated that the probation officer discovered Poignant
accessed various “swinger dating sites” and a website called
“teenhardmovies.com” via the internet, resulting in his discharge from the sex
offender treatment program in which he participated. The R&R also indicated that
the probation officer testified that the type of internet activity in which Poignant
engaged was similar to the type of internet activity leading him to commit the
crime for which he was convicted. Third, Poignant admitted at the most recent
revocation hearing before the district court that his access to certain content on the
internet led, at least in part, to his offense conduct. Both he and his attorney
acknowledged that Poignant was a sex addict in need of help controlling his
thoughts and conduct. Finally, the district court noted before reimposing the
conditions of supervised release that while the specific violations of supervised
release did not involve children, they nonetheless involved conduct similar to his
underlying offense, which did involve children. Taking all of this into
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consideration, like the use of the internet in Taylor, Poignant’s sexual experiences
with adult pornography are not merely incidental to his offense conduct. Taylor,
338 F.3d at 1285.
Poignant’s condition does not involve a greater deprivation of liberty than
necessary to accomplish goals of deterrence, protecting the public, and
rehabilitation. While the condition unquestionably affects Poignant’s ability to
possess and produce constitutionally protected speech, the record indicates that the
restriction is warranted. The condition here does not rise to the level of vagueness
that warrants vacating because a court could not determine if it met the statutory
requirements. See Ridgeway, 319 F.3d at 1316–17. Moreover, this Court
distinguished a special condition barring depictions of “adults engaged in sexually
explicit conduct” from conditions expressly prohibiting possession of
“pornography,” which other circuits struck down as vague. See Carpenter, 803
F.3d at 1240.
Here, the relevant portion of the condition does not contain broad language
barring all pornography, but is specific to “visual depictions of minors or adults
engaged in sexually explicit conduct.” Although this language sweeps some
constitutionally protected speech within its purview, “a condition is not invalid
simply because it affects a probationer’s ability to exercise constitutionally
protected rights.” Tome, 611 F.3d at 1376 (quotation omitted). While such a
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condition might involve a greater-than-necessary deprivation of free speech
liberties in a case where there was little or no connection between pornography and
the defendant’s underlying conduct, see Voelker, 489 F.3d at 151–53, Poignant’s
experiences with adult pornography are linked to his sexual interest in children.
Accordingly, because the special condition was reasonably related to the
relevant § 3553(a) factors, and because the special condition did not unnecessariy
impinge upon Poignant’s constitutional rights, the district court did not abuse its
discretion in imposing as a special condition of supervised release that Poignant
refrain from viewing, possessing, or producing visual depictions of adults engaged
in sexually explicit conduct. We affirm Poignant’s special condition of supervised
release.
AFFIRMED.
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