United States v. Byron Hess, IV , 639 F. App'x 195 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4526
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BYRON ROSWELL HESS, IV,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:14-cr-00239-MOC-1)
Submitted: April 29, 2016 Decided: May 5, 2016
Before SHEDD, AGEE, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Ross Hall Richardson, Executive Director, Ann L. Hester, FEDERAL
DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North
Carolina, for Appellant. Jill Westmoreland Rose, United States
Attorney, Anthony J. Enright, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Byron Roswell Hess, IV, appeals his sentence of 60 months’
imprisonment and lifetime supervised release after pleading guilty
to possession of child pornography. Hess challenges the term and
several conditions of his supervised release. Finding no
reversible error, we affirm.
We ordinarily review a criminal sentence “under a deferential
abuse-of-discretion standard.” Gall v. United States, 552 U.S.
38, 41 (2007). We likewise review for abuse of discretion the
imposition of conditions on supervised release, an area where
district courts have broad latitude. United States v. Armel, 585
F.3d 182, 186 (4th Cir. 2009). However, because Hess did not
object to the procedural or substantive reasonableness of his
sentence before the district court, we review only for plain error.
See United States v. Wesley, 81 F.3d 482, 484 (4th Cir. 1996). To
establish plain error, Hess must show “‘(1) error, (2) that is
plain, and (3) that affect[s] substantial rights.’” United States
v. Thomas, 669 F.3d 421, 424 (4th Cir. 2012) (quoting Johnson v.
United States, 520 U.S. 461, 466-67 (1997)).
We detect no plain error in the district court’s imposition
of supervised release. Hess contends that the district court
failed to explain adequately its reasons for ordering a lifetime
term and several conditions of supervised release. Having reviewed
the record, we find the district court’s explanation sufficient.
2
Hess further argues that a number of his supervised-release
conditions are unconstitutionally vague. However, because no
binding precedent establishes that these conditions are
unconstitutional, Hess cannot satisfy the second requirement of
plain error review. Even if we were to conclude that Hess’
supervised-release conditions are vague, they are not plainly so.
Thus, we decline to disturb them.
Accordingly, we affirm the judgment of the district court.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before this
court and argument would not aid the decisional process.
AFFIRMED
3