UNITED STATES of America, Plaintiff-Appellee, v. Joseph POIGNANT, Defendant-Appellant.
No. 16-10669
United States Court of Appeals, Eleventh Circuit.
(January 18, 2017)
Non-Argument Calendar
Fletcher Peacock, Federal Public Defender‘s Office, Fort Pierce, FL, Michael Caruso, Federal Public Defender, Federal Public Defender‘s Office, Miami, FL, for Defendant-Appellant
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
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 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 dis
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.
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 factors in imposing special conditions of supervised release under U.S.S.G. § 5D1.3(b), which mirrors the relevant language in
This Court previously upheld conditions relating to the sentencing factors where
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 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
First, while the specific charge to which Poignant pled guilty, enticement of a mi
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 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 U.S. v. Voelker, 489 F.3d 139, 151-53 (3rd Cir. 2007), 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
AFFIRMED.