United States v. Christopher Oliphant , 456 F. App'x 456 ( 2012 )

Case: 11-10331 Document: 00511712829 Page: 1 Date Filed: 01/04/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 4, 2012
No. 11-10331
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
CHRISTOPHER LYNN OLIPHANT,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:10-CR-48-1
Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
Christopher Lynn Oliphant appeals the sentence imposed following his
guilty plea to making a bomb threat and making threats against the President.
Oliphant challenges the sex-offender related special conditions of his supervised
release. We affirm.
Oliphant first argues that the district court was required to give him
notice before imposing the special conditions of his release. Because Oliphant
made no objection to the lack of notice in the district court, we review this
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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No. 11-10331
argument for plain error only. See United States v. Milton, 147 F.3d 414, 420
(5th Cir. 1998). Because it is unclear whether, post-Booker,1 there is a notice
requirement for any conditions of supervised release, it cannot be said that the
district court plainly erred in not providing Oliphant notice. See United States
v. Weatherton, 567 F.3d 149, 155-56 (5th Cir. 2009).
Oliphant next argues that there is a conflict between the written judgment
and oral pronouncement insofar as the written judgment contains a strict no-
contact-with-persons-under-the-age-of-18 provision with no exception for
probation officer approval. Our review is for abuse of discretion. United States
v. Mireles, 471 F.3d 551, 557 (5th Cir. 2006). The written judgment is more
narrow than the oral pronouncement in that the second written special condition
does not provide that contact may be had with persons under the age of 18 if
prior approval is obtained from the probation officer. Nevertheless, the fourth
written special condition prohibits Oliphant from having “any form of
unsupervised contact with persons under the age of 18 at any location” unless
he first obtains the permission of his probation officer. Moreover, every other
special condition contained in the written judgment that forbids or limits
Oliphant’s contact with persons under the age of 18 provides that such contact
may be had after first obtaining the approval of the probation officer.
Consequently, the discrepancy between the oral and written judgments is an
ambiguity that can be resolved by reviewing the record as a whole; therefore,
remand is unnecessary. See id. at 558.
Oliphant next argues that the special conditions of release which provide
that he “shall not have access to or loiter near school grounds, parks, arcades,
playgrounds, amusement parks or other places where children by [sic] frequently
congregate” is overly vague. A special condition of supervised release that
restricts a defendant’s ability to interact with particular groups of people, to hold
1
United States v. Booker, 543 U.S. 220 (2005).
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No. 11-10331
certain types of employment, and to frequent certain places must provide “fair
notice” of the prohibited conduct. United States v. Paul, 274 F.3d 166 (5th Cir.
2001) (internal quotation marks and citation omitted). We conclude that the
written judgment’s use of the word “other” indicates that the phrase “where
children [] frequently congregate” modifies the preceding list of locations. Thus,
it is clear from the language of the condition that Oliphant may visit places
where children do not frequently congregate, and, as such, the provision is not
overly vague. See id.; cf. United States v. Peterson, 248 F.3d 79, 86 (2d Cir.
2001). The district court did not abuse its discretion in imposing this condition
of release. See Paul, 274 F.3d at 165.
Oliphant additionally argues that the special conditions of release that
prohibit any form of contact with children under the age of 18 impose a greater
deprivation of his liberty than necessary to protect the public and deter criminal
conduct. The basis for this argument is his contention that his sexual offense
involved the molestation of his daughter and took place in his home; thus, he
reasons, he is not a risk to the public at large in all places. Supervised release
conditions cannot involve a greater deprivation of liberty than is reasonably
necessary to (1) adequately deter criminal conduct, (2) protect the public from
further crimes of the defendant, and (3) provide the defendant with needed
correctional treatment. Paul, 274 F.3d at 165. The record discloses that
Oliphant’s sexual offenses were not limited to crimes against minors who were
family members; thus, restricting Oliphant’s contact with all minors is indeed
rationally related to the need to protect the public. Moreover, “Congress has
made clear that children, including [the defendant’s], are members of the public
it seeks to protect by permitting a district court to impose appropriate conditions
on terms of supervised release.” United States v. Rodriguez, 558 F.3d 408, 417
(5th Cir. 2009). We thus conclude that Oliphant’s association restrictions, which
allow for contact with minors with the probation officer’s prior permission, are
not overly broad and, as such, his liberty interests have not been deprived in a
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No. 11-10331
manner greater than necessary to protect the public and adequately deter
criminal conduct. See id. at 417-18. Again, there was no abuse of discretion on
the part of the district court in imposing these association restrictions.
Oliphant’s final argument that the special condition of release compelling
him to submit to treatment that may include psycho-physiological testing
constitutes an unnecessary deprivation of his liberty interests is not ripe for
review. See United States v. Carmichael, 343 F.3d 756, 761-62 (5th Cir. 2003).
AFFIRMED.
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