USA v. Christopher Ely

Filing

Opinion issued by court as to Appellant Christopher R. Ely. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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Date Filed: 07/13/2017

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-16477
Non-Argument Calendar
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D.C. Docket No. 3:06-cr-00183-HES-MCR-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHRISTOPHER R. ELY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(July 13, 2017)
Before TJOFLAT, MARCUS and WILLIAM PRYOR, Circuit Judges.
PER CURIAM:
After pleading guilty to a single count of possession of child pornography, in
violation of 18 U.S.C. §§ 2252A(a)(5)(B), (b)(2), and 2, and serving a term of
imprisonment, Christopher Ely’s supervised release was revoked. Ely now appeals

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the re-imposition of a special, “no-contact” condition of supervised release
prohibiting him from contacting minors, including his daughter, absent his
probation officer’s approval. On appeal, Ely argues that the district court abused
its discretion in: (1) re-imposing a condition inconsistent with the Sentencing
Commission’s policy statement regarding sex offenses without an “individualized
inquiry” or “particularized showing” of need; and (2) requiring the probation
officer to approve his communications with his daughter because that is an
improper delegation of a judicial function. After careful review, we affirm.
We review the district court’s imposition of a special condition of supervised
release for abuse of discretion. United States v. Moran, 573 F.3d 1132, 1137 (11th
Cir. 2009). We will not reverse unless we have a definite and firm conviction that
the district court committed a clear error of judgment in the conclusion it reached.
Id. However, objections not raised in the district court are reviewed for plain error.
Id. For a defendant to preserve an objection for appeal, he must “raise that point in
such clear and simple language that the trial court may not misunderstand it.”
United States v. Massey, 443 F.3d 814, 819 (11th Cir. 2006) (quotation omitted).
When the statement is not clear enough to inform the district court of the legal
basis for the objection, the objection is not properly preserved. Id. To establish
plain error, the defendant must show (1) an error, (2) that is plain, and (3) that
affected his substantial rights. United States v. Turner, 474 F.3d 1265, 1276 (11th
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Cir. 2007). If the defendant satisfies these conditions, we may exercise our
discretion to recognize the error only if it seriously affects the fairness, integrity, or
public reputation of judicial proceedings. Id. If the explicit language of a statute
or rule does not specifically resolve an issue, and no precedent from the Supreme
Court or this Court directly resolves it, there can be no plain error. United States v.
Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003).
A district court may order any special conditions of supervised release it
deems appropriate so long as each condition: (1) is reasonably related to the nature
and circumstances of the offense, the defendant’s history and characteristics, the
deterrence of criminal conduct, the protection of the public from future crimes of
the defendant, and the defendant’s educational, vocational, medical, or correctional
treatment needs; (2) involves no greater deprivation of liberty than reasonably
necessary to protect the public, deter criminal conduct, or provide the defendant
with needed educational, vocational, medical, or correctional treatment; and (3) is
consistent with the policy statements of the United States Sentencing Commission.
18 U.S.C. § 3583(d) (citing 18 U.S.C. § 3553(a)(1), (2)(B)-(C)); see also U.S.S.G.
§ 5D1.3(b). Each factor is an independent consideration to be weighed, and a
special condition need not be supported by each factor. United States v. Tome,
611 F.3d 1371, 1376 (11th Cir. 2010).

The Guidelines policy statement

“recommend[s]” three special conditions for sex offenses: (1) participation in a
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program for the treatment and monitoring of sex offenders; (2) restrictions on
computer usage, in cases involving computers; and (3) “[a] condition requiring the
defendant to submit to a search, at any time, with or without a warrant . . . of the
defendant’s person and any property . . . upon reasonable suspicion concerning a
violation of a condition of supervised release.” U.S.S.G. § 5D1.3(d)(7).
While a condition of supervised release should not unduly restrict a
defendant’s liberty, a condition is not invalid simply because it affects a
probationer’s ability to exercise constitutionally protected rights. Tome, 611 F.3d
at 1376. Indeed, in a recent case, the Supreme Court has “assumed that the First
Amendment permits a State to enact specific, narrowly tailored laws that prohibit a
sex offender from engaging in conduct that often presages a sexual crime, like
contacting a minor or using a website to gather information about a minor.”
Packingham v. North Carolina, No. 15-1194, 2017 WL 2621313, at *6 (U.S. June
19, 2017) (emphasis added). The Eighth Circuit has held, however, that specific
conditions requiring defendants to get permission from probation officers before
contacting their own children must be supported by an “individualized inquiry”
and “particularized showing” of need. United States v. Hobbs, 710 F.3d 850, 854
(8th Cir. 2013).
Because Ely did not squarely argue to the district court that the “no-contact”
supervised-release condition -- prohibiting his contact with minors, including his
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daughter, absent his probation officer’s approval -- required an “individualized
inquiry” or a “particularized showing” of need, we review this issue for plain error.
See Moran, 573 F.3d at 1137. However, no binding authority from this Court, the
Supreme Court, or any rule or statute requires the district court to conduct this kind
of analysis. As a result, the district court did not plainly err by re-imposing the nocontact condition. See Lejarde-Rada, 319 F.3d at 1291. Ely also argues -- again,
for the first time on appeal -- that the condition is inconsistent with the Sentencing
Commission’s policy statement for sex offenses. But nothing there or otherwise
prevents the district court from imposing an additional condition beyond those
recommended in the policy statement, nor does the no-contact condition inherently
conflict with conditions recommended in the policy statement. See U.S.S.G. §
5D1.3(d)(7). In short, he has shown no error, much less plain error, for this claim.
To the extent Ely raises on appeal the objection he actually made to the
district court -- generally, that the district court abused its discretion by reimposing the no-contact condition without carving out an exception so that he
could speak with his daughter -- we are unpersuaded. For starters, the condition is
reasonably related to the nature and circumstances of Ely’s underlying offense -possession of child pornography -- and to Ely’s history and characteristics. See 18
U.S.C. § 3583(d)(1). As the record reveals, Ely was previously convicted of the
possession of child pornography, as well as attempted child enticement, and the
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criminal conduct at issue in this case arose while Ely was on supervised release for
those prior offenses. Thus, his status as a two-time sex offender who has violated
supervised release before establishes a reasonable relationship between the
condition and Ely’s history and characteristics. Moreover, the condition does not
involve a “greater deprivation of liberty” than reasonably necessary to afford
adequate deterrence, protect the public, or provide Ely with treatment. Rather, the
condition allows Ely to contact his daughter so long as he seeks and obtains written
permission from the probation officer and complies with the other conditions of his
supervision, none of which are challenged on appeal. Finally, as we’ve noted, the
no-contact condition is not inconsistent with any conditions recommended in the
Sentencing Commission policy statement regarding sex offenses. See U.S.S.G. §
5D1.3(d)(7); see also Moran, 573 F.3d at 1140 (upholding no-contact condition in
addition to recommended search condition). On this record, the district court did
not abuse its discretion by imposing the no-contact condition in this case.
Next, we find no merit to Ely’s argument that requiring the probation officer
to approve his communications with his daughter amounts to an improper
delegation of a judicial function. We recognize that a district court may not
delegate a judicial function to a probation officer because such a delegation
violates Article III of the United States Constitution. United States v. Bernardine,
237 F.3d 1279, 1283 (11th Cir. 2001). Nevertheless, for purposes of efficiency,
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district courts rely extensively on probation officers to support judicial functions.
Id. To determine if a district court has improperly delegated its judicial authority,
we draw a distinction between the delegation to a probation officer of a ministerial
act or support service and the ultimate responsibility of imposing the sentence.
United States v. Nash, 438 F.3d 1302, 1304-05 (11th Cir. 2006).
We’ve upheld conditions of supervised release that impose a requirement on
a defendant, but subject the defendant to approval or direction of a probation
officer. See, e.g., id. at 1306 (upholding conditions requiring defendant to obtain
probation officer’s approval before opening bank account and to notify third
parties of risks occasioned by criminal record or personal history “as directed by
the probation officer”) (quotation omitted); United States v. Zinn, 321 F.3d 1084,
1093 (11th Cir. 2003) (upholding condition requiring defendant to participate in
sex offender treatment program approved by probation officer); United States v.
Taylor, 338 F.3d 1280, 1283-84 (11th Cir. 2003) (upholding condition requiring
defendant “to participate in a mental health program . . . approved by the probation
officer, and abide by the rules, requirements and conditions of the treatment
program”) (quotation omitted). In contrast, we’ve vacated conditions that delegate
to the probation officer the authority to determine whether a defendant will
participate in a treatment program at all. See, e.g., Nash, 438 F.3d at 1305-06
(vacating condition that gave probation officer “ultimate responsibility” over
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whether defendant would participate in mental health treatment) (quotation
omitted); United States v. Heath, 419 F.3d 1312, 1315 (11th Cir. 2005) (same).
Once again, Ely’s claim is reviewed for plain error. At the final revocation
hearing, Ely took issue with obtaining the probation officer’s permission to
communicate with his daughter and questioned whether he would ultimately be
able to resolve a permission-related dispute with the court. However, he never
argued -- as he now does -- that the district court improperly delegated its judicial
authority to the probation officer by requiring him to approve Ely’s
communications with all minors. Because Ely never clearly articulated this claim
to the district court, we must review for plain error. Massey, 443 F.3d at 819.
The district court did not plainly err by requiring the probation officer to
approve Ely’s communications with minors. Indeed, there is no binding authority
holding that a condition requiring a probation officer to approve a supervisee’s
communications with a minor is an improper delegation of judicial authority. See
Lejarde-Rada, 319 F.3d at 1291. Nor do we see how the district court’s delegation
could amount to error, much less plain error. When the district court imposed the
no-contact condition, it imposed a directive on Ely not to contact minors, while
delegating supervision of that condition to the probation officer. See Nash, 438
F.3d at 1306. Despite Ely’s complaint at the revocation hearing that he could not
“just call [the judge] on the phone” to seek an exception, we’ve observed that
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district courts must be able to rely on probation officers for administrative support
and oversight. See Bernardine, 237 F.3d at 1283. The district court did not allow
the probation officer to decide whether or not Ely would be subject to a no-contact
condition. Instead, the court made clear that it would retain ultimate responsibility
over Ely’s contact with minors and instructed Ely to petition the court if any
dispute arose with the probation officer’s denial of a properly made request. In
other words, the court gave the probation officer a supervisory, rather than judicial,
function. Accordingly, even if we were to assume that Ely had properly made this
argument in the district court, we cannot say the district court abused its discretion
by improperly delegating its judicial authority.
AFFIRMED.

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