United States v. Caravayo, 14–50773.

Citation809 F.3d 269
Decision Date17 December 2015
Docket NumberNo. 14–50773.,14–50773.
Parties UNITED STATES of America, Plaintiff–Appellee, v. James Allen CARAVAYO, Defendant–Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

809 F.3d 269

UNITED STATES of America, Plaintiff–Appellee,
v.
James Allen CARAVAYO, Defendant–Appellant.

No. 14–50773.

United States Court of Appeals, Fifth Circuit.

Dec. 17, 2015.


809 F.3d 271

Joseph H. Gay, Jr., Assistant U.S. Attorney, Ellen A. Lockwood (argued), Assistant U.S. Attorney, U.S. Attorney's Office, San Antonio, TX, for Plaintiff–Appellee.

Erik Anthony Hanshew (argued), Assistant Federal Public Defender, Maureen Scott Franco, Federal Public Defender, Federal Public Defender's Office, San Antonio, TX, for Defendant–Appellant.

Appeal from the United States District Court for the Western District of Texas.

Before KING, SMITH, and ELROD, Circuit Judges.

PER CURIAM:

The district court imposed a blanket supervised release condition that bars Defendant James Allen Caravayo—who was originally convicted of possessing child pornography—from dating any adult with minor children. Caravayo challenges the dating restriction, arguing that it violates 18 U.S.C. § 3583(d) and his First Amendment right of free association. Because the dating restriction was not supported by a factual finding or otherwise clearly substantiated by the record, we VACATE the sentence and REMAND for resentencing.

809 F.3d 272

I.

In November 2005, Caravayo pleaded guilty to possession of child pornography in violation of 18 U.S.C. § 2252. The district court sentenced him to 96 months' imprisonment followed by 10 years of supervised release, subject to several supervised release conditions. Caravayo appealed his sentence, and we dismissed the appeal as frivolous. See United States v. Caravayo, 257 Fed.Appx. 804 (5th Cir.2007).

Caravayo served out his prison term, and the supervised release period commenced in November 2012. In May 2014, the government filed a motion to revoke Caravayo's supervised release, alleging several violations of Caravayo's release conditions. At the revocation hearing, the government abandoned all of the alleged violations except for a Texas misdemeanor conviction for Failure to Identify, to which Caravayo admitted. Based on that admitted violation, the district court revoked Caravayo's supervised release, sentenced him to 90 days' imprisonment, and re-imposed the balance of his original supervised release term, subject to the same conditions.

At issue here is Special Condition Six, which prohibits Caravayo from "dat[ing any] women/men who have children under the age of eighteen." At the revocation hearing, Caravayo's counsel objected to Special Condition Six on the ground that it violated Caravayo's First Amendment right of free association. Caravayo argued that other more narrowly tailored conditions could achieve the same goal, including one of his already applicable conditions prohibiting unsupervised contact with minors. Without ruling on his objection, the district court re-imposed all of the original supervised release conditions, including Special Condition Six. Caravayo appeals and argues that Special Condition Six fails to meet the criteria imposed by 18 U.S.C. § 3585(d) for special conditions and violates his First Amendment right of free association.

II.

We review a preserved challenge to a special condition of supervised release for abuse of discretion. United States v. Fernandez, 776 F.3d 344, 345 (5th Cir.2015). Caravayo clearly objected to Special Condition Six on First Amendment grounds at his revocation hearing and thus preserved that challenge. See United States v. Bird, 124 F.3d 667, 684 (5th Cir.1997) (reviewing for abuse of discretion a First Amendment challenge to a special condition of supervised release when the defendant objected to the condition based on the First Amendment and argued that the condition was not narrowly tailored and was duplicative, but did not mention the statutory requirements of § 3583 ). Caravayo's objection was more than a "[v]ague reference[ ] to the First Amendment," as the dissenting opinion suggests; rather, it referenced the criteria on which his First Amendment challenge must now be judged:

[Special Condition Six] is in violation of the First Amendment, Your Honor, frankly a freedom of association. There are much more narrowly-tailored possibilities, which are actually included, which are him not having contact with minors and/or not having contact with minors without the predetermination of his probation, but a blanket prohibition of him dating anyone, because they have a minor, frankly, Your Honor, I've never seen this condition before and so I note that and flag that with an objection to that.

However, because Caravayo did not object to the condition on the basis of § 3583(d),

809 F.3d 273

we review Caravayo's statutory challenge for plain error.1

III.

A.

As is our practice, we turn first to the statutory challenge. Caravayo's statutory challenge asserts that Special Condition Six does not satisfy § 3583(d) because the condition is not "reasonably related" to § 3553's factors and is a greater deprivation of liberty than is reasonably necessary to achieve the three statutory goals of § 3583(d)(2). Section 3583(d)(1) requires that a condition of supervised release be "reasonably related to the factors set forth in [18 U.S.C. § 3553(a)(1), (a)(2)(B)–(D) ]," which are:

(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."

United States v. Paul, 274 F.3d 155, 165 (5th Cir.2001) (alteration in original) (quoting 18 U.S.C. § 3553(a)(1), (a)(2)(B)–(D) ). A special condition must also "involve[ ] no greater deprivation of liberty than is reasonably necessary" to achieve the latter three statutory goals of § 3553(a)(2).2 Id.; see § 3583(d)(2).3

Because Caravayo's statutory challenge is subject to plain error review, he must show that the district court erred, that the error was plain, and that the plain error affected his substantial rights. See Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). Even if these conditions are met, our discretion to correct the error "ought to be exercised only if the error seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings." Id. (internal quotation marks and citation omitted). For the reasons discussed below, the imposition of Special Condition Six was error. However, Caravayo's statutory challenge cannot succeed on plain error review because he fails to argue that the alleged error affected the fairness, integrity, or public reputation of judicial proceedings. "We have ... refused to correct plain errors when, as here, the complaining party makes no showing as to the fourth prong."

809 F.3d 274

United States v. Rivera, 784 F.3d 1012, 1018 n. 3 (5th Cir.2015) ; see United States v. Andaverde–Tinoco, 741 F.3d 509, 523 (5th Cir.2013) ("[T]he burden is on the defendant to demonstrate that the error affects the fairness, integrity, or public reputation of judicial proceedings."), cert. denied, ––– U.S. ––––, 134 S.Ct. 1912, 188 L.Ed.2d 938 (2014). Because Caravayo's statutory challenge to Special Condition Six fails, we turn to his First Amendment challenge.

B.

We review Caravayo's First Amendment challenge to Special Condition Six for abuse of discretion. United States v. Salazar, 743 F.3d 445, 448 (5th Cir.2014). "A district court abuses its discretion if it bases its decision on an error of law or a clearly erroneous assessment of the evidence." United States v. McKnight, 570 F.3d 641, 645 (5th Cir.2009) (internal alterations and quotation marks omitted).

"It is axiomatic that the infringement of constitutional liberties occurs concomitantly with conviction of a crime, and many conditions of supervised release therefore permissibly infringe liberty interests." United States v. Woods, 547 F.3d 515, 519 (5th Cir.2008). As such, a condition "is not necessarily invalidated merely because it impairs a [supervisee's] enjoyment of constitutional rights." United States v. Stafford, 983 F.2d 25, 28 (5th Cir.1993). All discretionary conditions of supervised release, however, must conform to the requirements in § 3583(d). See id.; United States v. Fields, 777 F.3d 799, 802–03 (5th Cir.2015).

A special condition of supervised release like the one challenged by Caravayo must comply with § 3583(d) to survive a First Amendment challenge. See United States v. Paul, 274 F.3d 155, 169 (5th Cir.2001) (affirming that "supervised release conditions restricting ... First Amendment freedoms are permissible if the statutory tailoring requirements are satisfied" and holding the requirements of § 3583(d) satisfied); United States v. Bird, 124 F.3d 667, 684 (5th Cir.1997) (rejecting a First Amendment challenge to a special condition because the ...

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