United States v. Blank ( 2021 )

Case: 20-40006 Document: 00515803590 Page: 1 Date Filed: 03/31/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 31, 2021
No. 20-40006
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Travis Hunter Blank,
Defendant—Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:11-CR-67
Before Owen, Chief Judge, and Jolly and Dennis, Circuit Judges.
Per Curiam:*
Travis Hunter Blank, pro se, appeals from the district court’s partial
denial of his motion to modify the conditions of his supervised release.
Specifically, he seeks modification of conditions that (1) limit his use of any
device with a camera absent monitoring software, (2) prohibit him from
viewing and possessing images of “sexually explicit conduct” in any form of
*
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opinion should not be published and is not precedent except under the limited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. 20-40006
media or in any live venue, and (3) require him to submit to polygraph testing
as part of the “physiological testing” of his sex offender treatment program.
For the following reasons, we AFFIRM the district court.
I. Background
In 2011, Blank was convicted by a jury of transportation of child
pornography, in violation of 18 U.S.C. § 2252(a)(1), (b)(1), and possession of
child pornography, in violation of § 2252(a)(4)(B), (b)(2). The district court
sentenced him to a total term of 121 months of imprisonment and a life term
of supervised release. Relevant here, the following special conditions of
supervised release were imposed: (1) Blank was required to “participate in a
sex offender treatment program which may include the application of
physiological testing instruments”; (2) Blank was prohibited from viewing or
possessing “any images in any form of media or in any live venue that depicts
sexually explicit conduct,” as defined under 18 U.S.C. § 2256(2)(A), and
“not limited to the sexual exploitation of children”; and (3) Blank was
prohibited from purchasing, possessing, having contact with, or using
devices, including “cellular telephones with photographic capability” and
“digital cameras; digital recorders; or any other type of recording and/or
photographic equipment.” Blank did not object to these supervised release
conditions.
This court affirmed his conviction and sentence. See United States v.
Blank, 701 F.3d 1084 (5th Cir. 2012). Blank did not challenge any of his
supervised release conditions in that previous appeal. On or about July 11,
2019, following his term of imprisonment, Blank commenced his term of
supervised release. He subsequently filed a motion to modify the terms of
his supervised release pursuant to 18 U.S.C. § 3583(e)(2), which he amended
twice. In his second amended motion, Blank, as relevant here, challenged the
conditions (1) preventing him from purchasing, possessing, and using a
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camera (“camera condition”); (2) preventing him from viewing or
possessing images of sexually explicit conduct (“explicit content
condition”); and (3) requiring him to submit to polygraph testing as part of
the “physiological testing” of his sex offender treatment program
(“polygraph condition”).
The district court granted in part and denied in part Blank’s motion.
It granted in part and modified the camera condition to remove the total ban
on camera use while also limiting Blank’s “access to a camera or [his]
utilizing a device with a camera attached unless there is monitoring software
installed in order to monitor how the camera is being used.” The court
denied the motion with regard to the explicit content condition and the
polygraph condition, stating that the two conditions “are standard conditions
imposed by the Court in sex offender cases and such conditions are justified
and necessary and will remain in effect.” Blank appealed.
II. Applicable Law
At the outset, we note an ambiguity in this court’s caselaw as to the
appropriate standard of review—abuse of discretion or plain error—where,
as here, a defendant did not raise an objection to the supervised release
conditions at his original sentencing. See United States v. Doyle, 865 F.3d 214,
214–15 & n.1 (5th Cir. 2017); United States v. Insaulgarat, 289 F. App’x 738,
740 (5th Cir. 2008). However, we need not resolve this ambiguity because
Blank’s challenges fail even under the less deferential abuse-of-discretion
standard. See Insaulgarat, 289 F. App’x at 740. “A district court abuses its
discretion if it bases its decision on an error of law or a clearly erroneous
assessment of the evidence.” Id. at 740–41 (quoting United States v. Castillo,
430 F.3d 230, 238 (5th Cir. 2005)).
A district court retains jurisdiction to modify conditions of supervised
release, see 18 U.S.C. § 3583(e)(2), and has “wide discretion in imposing
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terms and conditions of supervised release” so long as “the conditions meet
certain criteria.” See United States v. Paul, 274 F.3d 155, 164 (5th Cir. 2001).
Under 18 U.S.C. § 3583(d), a district court has the discretion to order “any
other condition it considers to be appropriate,” if the condition is
“reasonably related” to certain sentencing factors.
These factors include: (1) “the nature and circumstances of the
offense and the history and characteristics of the defendant,”
(2) the need “to afford adequate deterrence to criminal
conduct,” (3) the need “to protect the public from further
crimes of the defendant,” and (4) the need “to provide the
defendant with needed [training], medical care, or other
correctional treatment in the most effective manner.”
Paul, 274 F.3d at 165 (quoting 18 U.S.C. § 3553(a)(1)-(2)) (alteration in
original). “In addition, supervised release conditions cannot involve a
greater deprivation of liberty than is reasonably necessary to achieve the
latter three statutory goals.” Id. (citing § 3583(d)). Finally, supervised
release conditions must also be “consistent with any pertinent policy
statements issued by the Sentencing Commission.” 18 U.S.C. § 3583(d).
III. Discussion
We consider Blank’s contentions as to each of the three supervised
release conditions in turn.
A.
First, Blank contends that the camera condition, even as modified, is
not reasonably related to the permissible sentencing factors in § 3553(a)
because there was no evidence at trial or factual findings made by the district
court at sentencing that he used a camera in relation to his offense. As noted
above, Blank failed to object to the camera condition at his original sentencing
and did not challenge it in his first appeal.
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The Government compares the camera condition to the limitation on
Blank’s computer usage. The Sentencing Guidelines generally recommend
limiting the computer usage of a sex offender such as Blank where the
defendant used the computer in connection with his offense. See U.S.S.G.
§ 5D1.3(d)(7)(B). Pursuant to this provision, the district court authorized
Blank to access the Internet only if monitoring software is installed on his
computer (or any other Internet-enabled device). The Government asserts
that the camera condition, which also mandates the use of monitoring
software, is likewise related to Blank’s personal history, characteristics, and
offense because the images and videos he possessed were necessarily created
using a camera or other device, even if Blank is correct that the record does
not show that he personally used a camera in relation to his offense.
We conclude that the camera condition is reasonably related to the
permissible statutory goal of deterring criminal conduct, see 18 U.S.C.
§ 3553(a)(2)(B), as well as Blank’s personal history and characteristics, see id.§ 3553(a)(1). Given the state of technology, a camera—much like a
computer—can just as readily be used as a device for transporting,
possessing, and viewing images as for creating images. Blank was convicted
of possessing 24 images of child pornography, though the record establishes
that he possessed and viewed potentially thousands of still images and videos
of child pornography over a period of many years. See Blank, 701 F.3d at
1088, 1091–92. Therefore, the camera condition is reasonably related to his
offense and personal history of transporting and possessing child
pornography, as well as the need to deter future criminal conduct,
notwithstanding Blank’s lack of documented history of personally creating
such images with a camera.
Further, the camera condition as appropriately modified by the
district court “involves no greater deprivation of liberty than is reasonably
necessary,” see 18 U.S.C. § 3583(d)(2), because Blank is no longer
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completely barred from using a camera or camera-enabled device; indeed, he
is allowed to use a camera provided that monitoring software is installed.
Thus, the district court’s partial modification of the camera condition was
not an abuse of discretion.
B.
Second, Blank contends that the district court abused its discretion by
not modifying the explicit content condition because it is not reasonably
related to a permissible sentencing factor, violates his First Amendment
rights because it is overbroad, and violates his due process rights because it is
vague. Blank asserts in his opening brief that it would be a “direct violation”
of the condition if he were “watching regular TV” and saw “a show that
contains someone naked from behind” or “[a] couple having sex but under
the sheets and no nudity being shown.” The Government responds that the
condition should be given a “commonsense understanding” and as such does
not apply to R-rated movies and the viewing of art depicting nudity. In his
reply brief, however, Blank alleges that “the probation department and
therapy” informed him that the condition prohibited him from viewing “any
nudity” including “through the viewing of art.”
Supervised release conditions restricting First Amendment rights are
permissible if the conditions satisfy the statutory requirements of 18 U.S.C.
§ 3583(d). See Paul, 274 F.3d at 169. Our court has held that when a
defendant is convicted of a crime that is “sexual in nature”—like possession
of child pornography—it is “reasonable for the district court to restrict [the
defendant’s] access to sexually stimulating material more broadly in an effort
to prevent future crimes or aid in his rehabilitation.” United States v. Ellis,
720 F.3d 220, 227 (5th Cir. 2013); see also United States v. Miller, 665 F.3d
114, 136 (5th Cir. 2011).
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Blank argues that the condition is improper because there is no
evidence that he has “an addiction to pornography” or “sexually stimulating
material.” We conclude that the condition is reasonably related to his offense
of possessing child pornography; his history of possessing and viewing
pornography; and the need for the sentence imposed to deter future criminal
conduct and provide for rehabilitation. See Ellis, 720 F.3d at 227. As to the
need for rehabilitation, Blank is also required to participate in a “sex offender
treatment program” as a condition of supervised release.
Nor is the condition overbroad, in violation of either § 3583(d)(2) or
Blank’s First Amendment rights, nor is it void for vagueness. Supervised
release conditions must be described in terms that “give ordinary people fair
notice,” but need not “describe every possible permutation” or “spell out
every last, self-evident detail.” United States v. Abatte, 970 F.3d 601, 604
(5th Cir. 2020) (citations omitted). “Categorical terms are inevitable and
can provide adequate notice so long as there exists a commonsense
understanding of what activities the categories encompass.” Id.In this case, the written judgment expressly states that “for purpose
of this special condition . . . ‘sexually explicit conduct’ is as defined under 18
U.S.C. § 2256(2)(A), and is not limited to the sexual exploitation of
children.” Section 2256(2)(A), in turn, includes a detailed definition of
various acts and portrayals that provides the ordinary reader with a
“commonsense understanding” that “sexually explicit conduct” as a
category encompasses pornographic content, but not art in museums, shows
on broadcast television, or even R-rated movies that include brief nudity. See
United States v. Brigham, 569 F.3d 220, 232–33 (5th Cir. 2009) (holding that
a similar condition prohibiting “pornographic, sexually oriented or sexually
stimulating materials” was not vague or overbroad and describing the
definition of “sexually explicit conduct” in 18 U.S.C. § 2256(2)(A) as
providing “practical insight into the meaning of these terms”).
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Mindful that Blank is pro se and in response to his assertion (albeit
made without factual support) that the Probation Office interprets the
condition to apply to “any” nudity or “any” depiction of sexuality
whatsoever contained even in broadcast television shows, non-pornographic
movies, or the type of art that is displayed in museums, we clarify that the
condition by its own terms only covers “sexually explicit conduct” as defined
in 18 U.S.C. § 2256(2)(A) and shall be enforced as such. Indeed, we think
this understanding accords with the district court’s in imposing the
condition. Therefore, the district court did not abuse its discretion in
refusing to modify the condition.
C.
Third, Blank contends that the district court abused its discretion by
failing to modify the condition requiring him to undergo polygraph testing as
part of his sex offender treatment. He argues that the condition violates his
right against self-incrimination; that the provision unfairly targets sex
offenders; and that the condition is not recommended by the Sentencing
Commission. 1
Blank’s challenge fails. That polygraph testing is not specifically
recommended by the Sentencing Commission does not render the condition
invalid because the district court has the discretion to impose conditions of
supervised release even where the Guidelines do not recommend them, see
United States v. Windless, 719 F.3d 415, 421 (5th Cir. 2013), including a
mandatory polygraph testing condition, see Sealed Appellee v. Sealed
1
Blank also asserts that he was “never informed” of the polygraph testing
condition either at sentencing or in his written judgment, which refers to “physiological
testing.” We do not address this argument, however, because in this appeal we are only
reviewing the district court’s partial denial of Blank’s motion to modify his supervised
release conditions, not their original imposition.
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Appellant, 937 F.3d 392, 405 (5th Cir. 2019). Further, we have previously
held that such a requirement does not violate the right against self-
incrimination. See United States v. Locke, 482 F.3d 764, 767 (5th Cir. 2007).
The polygraph condition is also reasonably related to Blank’s offense
of conviction, his history and characteristics, the need to deter criminal
conduct, and the need for rehabilitation. See § 3553(a)(1), (a)(2)(B),
(a)(2)(D). Blank has a history of not being truthful about his possession of
child pornography, see Blank, 701 F.3d at 1091–92 & n.9 (noting that Blank’s
defense at trial—that when he initially confessed to possessing child
pornography, he was lying in order to protect from deportation an English
teenager who lived with his family and was responsible for the child
pornography on his computer—was belied by significant evidence to the
contrary), and he admits in his appellate brief that “images [of child
pornography] were deleted [from his computer] and not readily accessible
and required a forensic specialist to retrieve.”
Perhaps more importantly, the polygraph condition is a component of
the condition requiring Blank to participate in a sex offender treatment
program, and is therefore related to the need for rehabilitation. See
§ 3553(a)(2)(D). Accordingly, we interpret the polygraph condition to be
limited by the legitimate needs of sex offender treatment—not a license to
interrogate for unrelated purposes. The district court’s refusal to modify the
polygraph condition was not an abuse of discretion.
* * *
For the foregoing reasons, we AFFIRM the district court because its
decision to grant in part and deny in part Blank’s motion to modify his
supervised release conditions was reasonably related to the relevant
sentencing factors and was not based on a clearly erroneous assessment of
the evidence, and therefore was not an abuse of discretion.
9