United States v. James Caravayo

696 F. App'x 671
CourtCourt of Appeals for the Fifth Circuit
DecidedJune 13, 2017
Docket16-50136
StatusUnpublished

This text of 696 F. App'x 671 (United States v. James Caravayo) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. James Caravayo, 696 F. App'x 671 (5th Cir. 2017).

Opinion

PER CURIAM: *

James Allen Caravayo previously challenged a special condition of supervised release absolutely prohibiting him from dating anyone with children under the age of eighteen. He prevailed. See United States v. Caravayo, 809 F.3d 269 (5th Cir. 2015). We ordered resentencing but indicated that the special condition may yet be proper depending on the findings made by the sentencing judge on remand.' Id. at 276. On remand, the district court struck the dating restriction altogether and instead required that if “the defendant begins to date anyone with children under the age of 18, he must immediately notify the probation officer.” Caravayo again appeals.

BACKGROUND

Caravayo pleaded guilty to possession of child pornography in violation of 18 U.S.C. § 2252, served a prison sentence, and is now on supervised release. In 2014, his *673 supervised release was revoked due to a Texas misdemeanor conviction. At the revocation hearing, the district court imposed a 90-day sentence and re-imposed all prior conditions of supervised release. Caravayo, however, successfully appealed from Special Condition Six, which prohibited him from “dat[ing any] women/men who have children under the age of eighteen.” We ruled in Caravayo’s favor “[b]ecause the district court made no specific factual findings” establishing that the condition “was reasonably related to one of the four factors under [18 U.S.C.] § 3553(a), and because the record d[id] not clearly substantiate such a relationship.” Id. at 275.

While that appeal was pending, Cara-vayo was busy violating the terms of his supervised release. Most notably, he used the Internet to access a website ostensibly geared toward the “nudist” lifestyle—a website that included images of nude children as well as adults. The district court was aware of this violation when it held the revocation hearing on remand. While it struck Special Condition Six entirely, it imposed the special condition now challenged on appeal. This “notice condition” was appended to Special Condition One and requires Caravayo to immediately inform his probation officer if he begins dating anyone with children under the age of eighteen.

DISCUSSION

I

As amended, Special Condition One now requires that “[i]n the event that the defendant begins to date anyone with children under the age of 18, he must immediately notify the probation officer.” Cara-vayo notes disagreement regarding what it means, in common parlance, to date someone. He contends the term is therefore impermissibly vague and ambiguous—that it does not afford him fair notice of what conduct is required, or prohibited; In the first appeal on this matter, however, he made no objection whatsoever to that very same word, which also appeared in the prior Special Condition Six—“date.” Special Condition Six presented the same (supposed) risk; it prohibited Caravayo from dating certain people but did not separately define what it meant to date.

When an argument is not made on appeal and is thus waived, that waiver applies to any subsequent appeal. Lindquist v. City of Pasadena Texas, 669 F.3d 225, 239 (5th Cir. 2012). “The doctrine promotes procedural efficiency and ‘prevents the bizarre result that a party who has chosen not to argue a point on a first appeal should stand better as regards the law of the case than one who had argued and lost.’” Id. at 239-40 (quoting Nw. Indiana Tel. Co. v. F.C.C., 872 F.2d 465, 470 (D.C. Cir. 1989)). This rule applies here.

Our prior opinion did not establish the law of the case because it did not decide (either expressly or “by necessary implication”) whether there was any constitutional problem with a special condition that is triggered when the defendant begins to “date.” See In re Felt, 255 F.3d 220, 225 (5th Cir. 2001) (quoting Browning v. Navarro, 887 F.2d 553, 556 (5th Cir. 1989)). But the fact of this second appeal does not provide Caravayo an opportunity to make an argument that he should have made in the first appeal. Appeals taken from a defendant’s resentencing on remand must be limited to new issues that materialized at resentencing and cannot raise an argument that should have been presented in the first appeal.

II

To the extent Caravayo challenges the notice condition as being unsupported by *674 the record, we review only for an abuse of discretion. United States v. Huor, 852 F.3d 392 (5th Cir. 2017).

[S]uch conditions must be reasonably related to one of the following statutory factors: (i) the nature and circumstances of the offense and the history and characteristics of the defendant; (ii) the need to afford adequate deterrence to criminal conduct; (iii) the need to protect the public from further crimes of the defendant; and (iv) the need to provide the defendant with needed training, medical care, or other correctional treatment in the most effective manner.

United States v. Salazar, 743 F.3d 445, 451 (5th Cir. 2014) (citing 18 U.S.C. § 3553(a)(l)-(2)).

And they “cannot involve a ‘greater deprivation of liberty than is reasonably necessary’ to achieve the statutory goals.” Id. (quoting United States v. Paul, 274 F.3d 155, 165 (5th Cir. 2001)).

According to Caravayo, the notice condition is not reasonably related to the statutory factors and unduly interferes with his First Amendment rights, especially given that he is already prohibited from unsupervised contact with minors.

The notice condition clearly relates to the first three statutory factors—the history and characteristics of the defendant coupled with the nature and circumstance of his offense, deterrence of criminal conduct, and protection of the public. We find the relation reasonable. It is essentially conceded that Caravayo is a sick man who should be kept far from children. Thus he does not challenge the conditions prohibiting him from “unsupervised contact with any child under age 18” and from loitering near places where children are likely to be found. The notice condition directly aids the probation office in ensuring that Cara-vayo does not harm children, both by alerting the probation officer to particular children within Caravayo’s social orbit and by affording the officer an opportunity to advise at-risk persons of Caravayo’s criminal background.

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Related

Office of Thrift Supervision v. Felt (Felt)
255 F.3d 220 (Fifth Circuit, 2001)
Lindquist v. City of Pasadena Texas
669 F.3d 225 (Fifth Circuit, 2012)
United States v. Ronald Scott Paul
274 F.3d 155 (Fifth Circuit, 2001)
United States v. John Heard, Jr.
709 F.3d 413 (Fifth Circuit, 2013)
United States v. Sammy Salazar
743 F.3d 445 (Fifth Circuit, 2014)
United States v. Kirk Pennington
606 F. App'x 216 (Fifth Circuit, 2015)
United States v. James Caravayo
809 F.3d 269 (Fifth Circuit, 2016)
United States v. Chanda Huor
852 F.3d 392 (Fifth Circuit, 2017)
Browning v. Navarro
887 F.2d 553 (Fifth Circuit, 1989)

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Bluebook (online)
696 F. App'x 671, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-james-caravayo-ca5-2017.