133 F. App'x 952
5th Cir.
2005

UNITED STATES of America, Plaintiff-Appellee, v. Joseph John McDERMOTT, Defendant-Appellant.

No. 04-40340. Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Decided May 27, 2005.

131 Fed. Appx. 953

James Lee Turner, Assistant U.S. Attorney, Julia Bowen Stern, Assistant U.S. Attorney, U.S. Attorney‘s Office Southern District of Texas, Houston, TX, for Plaintiff-Appellee.

Timothy William Crooks, Assistant Federal Public Defender, Marjorie A. Meyers, Federal Public Defender, Federal Public Defender‘s Office Southern District of Texas, Houston, TX, for Defendant-Appellant.

Before WIENER, BENAVIDES and STEWART, Circuit Judges.

PER CURIAM:*

Joseph John McDermott pleaded guilty to one count of possession of child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B), 2252A(b)(2), and 2256(8). McDermott argues that four conditions of supervised release imposed by the district court must be vacated. A district court enjoys “wide discretion” in imposing conditions of supervised release. ; 18 U.S.C. § 3583(d). Generally, the propriety of a special condition of supervised release is reviewed for an abuse of discretion. . However, McDermott‘s argument that the district court erred in imposing such conditions is raised for the first time on appeal and is therefore reviewed for plain error only. See (en banc).

The first special condition to which McDermott takes exception is that he “is required to participate in a mental health program as deemed necessary and approved by the probation officer.” McDermott argues that, by requiring participation in mental health treatment as the probation officer deems necessary, the district court unconstitutionally delegated its authority to the probation officer. Because McDermott has cited to no binding jurisprudence on the issue presented by this appeal, he has failed to show that the district court‘s error, if any, was plain. See .

McDermott argues that the provision that he “shall cooperate in the collection of DNA as directed by the probation officer, pursuant to the provisions of §§ 3563(a)(9) and 3583(d)” is improper because his offense of conviction is not subject to those provisions. In , the court held that the Bureau of Prisons (BOP), not the district court, determines if an offender is eligible for DNA sampling. The district court is mandated to require cooperation with the BOP‘s DNA sampling as part of any term of supervised release. The district court did not plainly err in imposing the condition, notwithstanding any argument the McDermott should not be subject to DNA sampling.

McDermott argues that the condition that he not “possess or have access to computers, the Internet, photographic equipment, audio/video equipment, or any item capable of producing a visual image” is a broader deprivation than necessary to satisfy the goals of supervised release. Although McDermott was not convicted for using his computer and the Internet to facilitate contact with a minor, they were the means that he used to exploit children. McDermott also asserts that, due to his employment history, a computer and Internet access will be essential to his ability to earn a living. This argument is speculative at best given that McDermott in now 62 years old. McDermott has not demonstrated that the district court plainly erred in imposing this condition.

McDermott argues that the condition that he not “possess any printed, photographed, or recorded material which may be used to arouse his sexual behavior” is unconstitutionally vague and overbroad. McDermott argument is specious because it relies on a selectively redacted and misleading citation to the challenged condition of release. The condition of release in this case is that McDermott may not “possess any printed, photographed, or recorded material which may be used to arouse his sexual behavior.” The record is replete with the specific type of material depicting acts of sex and sodomy by children that will arouse McDermott‘s sexual behavior. A commonsense reading of the condition based on the undisputed facts contained in the record shows beyond doubt that the prohibition is neither vague nor overbroad. See . McDermott has not shown that the district court plainly erred in imposing this condition on his release.

AFFIRMED.

Notes

*
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.