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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-11439 ________________________
D.C. Docket No. 0:16-cr-60264-RNS-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
PATRICK ANTCZAK,
Defendant - Appellant.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(October 9, 2018)
Before ROSENBAUM, HULL, and JULIE CARNES, Circuit Judges.
PER CURIAM:
Following a jury trial, Patrick Antczak was convicted of attempting to entice
a minor into sexual relations in violation of 18 U.S.C § 2422(b). He contends that Case: 17-11439 Date Filed: 10/09/2018 Page: 2 of 22
the district court committed several pretrial and trial errors that require reversal of
his conviction. He also asserts that the sentence the district court imposed was too
long, and its post-prison terms were too constricting. After careful consideration
and for the reasons that follow, we affirm.
I.
On September 22, 2016, a grand jury indicted Antczak for attempting to
persuade, induce, entice, or coerce a minor to engage in sexual activity, in violation
of 18 U.S.C § 2422(b). Antczak pled not guilty, contending he lacked the requisite
intent because he did not really believe a minor would be involved.
At its core, this case arises out of a dragnet that the Federal Bureau of
Investigation (“FBI”) created to uncover adults using the internet to troll for ways
to have sexual relations with minors. That dragnet ensnared Antczak. At trial, the
Government had to prove that (1) Antczak acted with a specific intent to persuade,
induce, entice, or coerce a minor to engage in unlawful sexual activity, and (2) he
took a substantial step toward the commission of the offense. See United States v.
Murrell, 368 F.3d 1283, 1286 (11th Cir. 2004). The Government sought to do so
through three witnesses and through evidence consisting of a number of sexually
explicit messages that Antczak exchanged with Matthew Fowler, an undercover
FBI agent.
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Specifically, at trial, Fowler testified that in August 2016, he placed an
advertisement on Craigslist’s “casual encounters” section, implying that he was a
“dirty dad”—a dad who was engaged in incest with his nine-year-old daughter
“Samantha”—and was looking for others who might be interested in having sexual
relations with her as well. Fowler testified that Antczak responded to the inquiry
shortly thereafter, beginning about a month of communications between them.
Much of Fowler’s remaining testimony consisted of Fowler’s reading of the
over 500 messages he had exchanged with Antczak through the online messenger
application “Kik.” In those messages, Antczak expressed a desire to have sex with
“Samantha” because he was “into incest/weird stuff” and “would like to try”
having sex with a young child. Antczak also engaged in graphic communications
about the manner in which he planned to have sex with “Samantha,”
communications in which he instructed “Samantha” on how to masturbate, and
communications with “Samantha” in which he promised to bring her an iTunes gift
card in exchange for sex. Following these communications, Fowler arranged for a
meeting between Antczak and “Samantha” at a hotel in Sunrise, Florida.
Fowler testified that on September 13, 2016, Antczak arrived at the pre-
arranged hotel rendezvous, carrying a condom that Fowler had instructed him to
bring, as well as the iTunes gift card that he had promised “Samantha.” Once he
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spotted Antczak in the hotel’s parking lot, Fowler, along with Agent Latasha
Humphrey, apprehended Antczak.
Antczak’s defense at trial was that he thought his discussions with
“Samantha” and her “father” were “fantasy talk[s]” because he did not really
believe a minor would be involved. Since Antczak did not testify, he sought to
develop this defense by cross-examining Fowler. For example, defense counsel
showed Fowler messages—also recovered from Antczak’s phone—between
Antczak and a person identified as “Angela Mikael,” who was a man
masquerading online as a young girl. The messages between “Angela” and
Antczak ended abruptly when “Angela” revealed that she was a man. According
to Antczak, when he told “Angela” that he “figured” that she was really a man, it
demonstrated that he was not sexually interested in minors but only in adults
roleplaying as minors.
To rebut this defense, the Government presented statements Antczak made
to FBI agents after they arrested him, evidence gleaned from Antczak’s cellphone,
and evidence that state authorities had caught Antczak with child pornography in
2011. To show Antczak’s 2011 acts, the Government called two additional
witnesses, Agent Humphrey and Detective Nicole Freeley from the Broward
County Sheriff’s Office. Both focused most of their testimony on Antczak’s
possession of child pornography in 2011.
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Before trial, Antczak tried to stanch all evidence relating to his prior
possession of child pornography by filing a motion to suppress. The district court
denied Antczak’s motion because it concluded this evidence was admissible under
Rule 404(b). In the court’s view, Antczak’s past possession of child pornography
was relevant to his intent here, since both crimes “involve the same mental state: a
prurient interest in young girls.” Because of this ruling, Antczak proposed a
question for voir dire designed to discern whether the Rule 404(b) evidence would
render a prospective juror unduly prejudiced towards him since he had previously
possessed child pornography.
The district court rejected Antczak’s proposed question and substituted more
general inquiries to root out potential prejudice amongst prospective jurors.
Specifically, the court asked whether potential jurors would be more likely to
convict the defendant of the instant offense because he had committed a crime in
the past. The court’s substituted inquires netted two potential jurors who said they
would be unduly prejudiced, and the court subsequently dismissed them. We
discuss the facts concerning this event in more detail when we analyze the specific
issue below.
Antczak also moved to suppress the statements he made to agents after his
arrest and the evidence they gleaned from his cellphone after he consented to their
search. More specifically, Antczak contended that he had invoked his Miranda
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rights by telling the agents he was going to “avoid answering any questions if
that’s okay.” But after the agents responded by saying, “Okay, so you don’t want
to talk to us?,” Antczak eventually confessed that he was at the hotel because a guy
“wanted [him] to engage in activity with his daughter.” 1 And Antczak eventually
handed over his password and cellphone to the agents so they could search it.
Once the agents unlocked the cellphone, they found the messages that Antczak had
exchanged with Fowler, as well as an incriminating browser history.
1 Based on a recording, the interaction between Antczak and the agents unfolded as follows:
Antczak: Okay, okay, um I, I am going to avoid answering any questions if that’s okay.
Agent Fowler: Okay
Agent Fowler: Okay, so you don’t want to talk to us?
Antczak: You can ask me questions if you want. Do I have the right to refuse each individual one or?
Agent Fowler: Yeah, you can, if you want to talk to us, great, if not, that’s great too.
Antczak: Okay. There’s no way that I’m going to be free to go if I answer questions?
Agent Fowler: No
Agent Humphrey: No
Agent Humphrey: So what do you want to do?
Antczak: Um, you can ask me anything if you want, that’s fine.
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Although the district court ruled that Antczak’s post-arrest statements were
inadmissible, the district court denied the suppression motion as it pertained to
evidence the agents obtained from Antczak’s cellphone. The district court found
this evidence admissible because Antczak had voluntarily consented to the agents’
search, and the agents’ “technical” violation of Antczak’s Miranda rights did not
vitiate his later voluntary consent.
Returning to the trial, after hearing all of the evidence, the jury began its
deliberations. But shortly after those deliberations began, the district court excused
a juror because he told the district court that it was “impossible” for him to follow
the court’s instructions due to his past experience. Less than an hour after
resuming its deliberations, the jury returned with a verdict finding Antczak guilty
of § 2422(b). We discuss the facts concerned with this issue more fully in the
context of our analysis below.
Based on Antczak’s offense level of 36 and a criminal-history of Category I,
the guideline range for Antczak’s sentence was 188 to 235 months. But based in
part upon the district court’s finding that a criminal history of Category I “woefully
understate[d] his true criminal background” due to Antczak’s possession of child
pornography and subsequent plea to the lesser charge of felony obscenity, the
district court sentenced Antczak to 360 months in prison followed by supervised
release for life. As a condition of Antczak’s supervised release, the district court
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restricted him from using a computer unless he received prior approval from the
court, and his use was connected with authorized employment.
II.
Antczak raises six challenges relating to his conviction under 18 U.S.C §
2422(b). First, Antczak contends that the district court erred in rejecting his
specific voir dire question in favor of two more general questions. Second, he
argues that the district court should not have admitted evidence under Rule 404(b),
that he was caught with child pornography in 2011, because that evidence did not
bear upon his intent in the current case. Third, Antczak asserts that the district
court should have suppressed the contents of his cellphone because he had invoked
his Miranda rights before consenting to the agents’ search. Fourth, Antczak urges
that the district court dismissed a juror with insufficient cause after deliberations
began. Fifth and sixth, Antczak challenges aspects of his sentence, complaining
that its length is unreasonable and the restrictions imposed on his use of a
computer are unconstitutional.
We affirm because Antzcak has failed to demonstrate that the district court
abused its discretion in crafting its voir dire, dismissing a juror, or imposing his
sentence. And taking both of Antczak’s evidentiary arguments together, even
assuming without deciding that Antczak is right, the district court’s purported
errors were harmless.
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A. The District Court Did Not Abuse Its Discretion In Crafting the Voir Dire
Antczak requested a voir dire question aimed at plumbing potential
prejudice that could result from the jury’s knowledge that he had previously
possessed child pornography. Specifically, he proposed the following question:
If you heard evidence that Patrick Antczak had possessed and viewed child pornography in the past, would you be so upset or bothered by that, that you want to convict him of the current charge even if the government failed to prove the current charge beyond a reasonable doubt.
The district court rejected Antczak’s proposed question; opting instead for
two that were more general:
If you were a juror in a case and you heard evidence that the defendant had previously committed another criminal office, would you believe that the defendant was more likely to have committed the charge he or she is on trial for, because of the fact that they had previously committed a different criminal offense;
Some people may be less worried that they are convicting an innocent person if they know that the person had committed some other crime in the past. Does anyone here feel that way?
Antczak contends that these questions were insufficient to ferret out any potential
prejudice because they did not discuss child pornography.
This Court reviews a district court’s refusal to ask Antczak’s proposed
question at voir dire for an abuse of discretion. See United States v. Chastain, 198
F.3d 1338, 1347–48 (11th Cir. 1999). “[U]nder Fed. R. Crim. P. 24(a), a trial court
has broad discretion in conducting a voir dire.” United States v. Shavers, 615 F.2d 9 Case: 17-11439 Date Filed: 10/09/2018 Page: 10 of 22
266, 268 (5th Cir. 1980). That discretion includes deciding whether to submit a
party’s proposed questions to the venire. United States v. Tegzes, 715 F.2d 505,
507 (11th Cir. 1983). “The voir dire conducted by the trial court need only provide
‘reasonable assurance that prejudice will be discovered if present.’” United States
v. Vera, 701 F.2d 1349, 1355 (11th Cir. 1983) (quoting United States v. Holman,
680 F.2d 1340, 1344 (11th Cir. 1982)).
The proper inquiry is whether the voir dire as a whole affords the defendant
the protection he seeks. See Tegzes, 715 F.2d at 507. A district court does not
abuse its discretion unless it unreasonably fails to craft inquiries that would
uncover detectable prejudice. Id. The standard for evaluating the district court’s
exercise of its discretion is “whether the means employed to test impartiality have
created a reasonable assurance that prejudice would be discovered if present.”
Shavers, 615 F.2d at 268.
Here, the district court did not abuse its discretion in substituting two voir
dire questions in place of Antczak’s proposed question. The district court’s voir
dire created reasonable assurances that Anctzak’s essential concerns were
identified: whether potential jurors would be more likely to convict Antczak
because he had previously possessed child pornography. The potential prejudice
that could have resulted from admitting evidence under Rule 404(b) might have
occurred if a potential juror were unable to limit her or his consideration of
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Antczak’s prior act to the limited purpose of proving Antczak’s intent. But here,
the district court’s substituted questions were reasonably calculated to smoke that
prejudice out.
In fact, the court’s questions did just that. After two jurors gave answers
that suggested that they might be unable to limit the import of Antczak’s prior acts
to considering Antczak’s intent here, the district court excused them for cause.
Nor does Antczak’s reliance on United States v. Shavers, 615 F.2d 266, 268
(5th Cir. 1980), affect our analysis. Antczak cites the case for the proposition that
he should have been able to specifically ask whether the jurors would be unfairly
prejudiced by learning that he previously possessed child pornography. In
Shavers, a case in which the defendant was claiming self-defense, the Fifth Circuit
found that the district court abused its discretion by not permitting the defense to
ask whether jurors (or their relatives) had been victims of a crime or whether they
harbored beliefs that a person cannot use violence to repel another person’s attacks.
Id. The Shavers Court reasoned that inquiring about “impartiality” did not suffice
because those inquiries “might not reveal latent prejudices” against somebody who
had used violent force. Id.
Here, unlike in Shavers, the court’s substitute questions met the principal
aim of Antczak’s rejected inquiry: whether the jury would improperly use
extrinsic evidence Antczak had committed a “bad act” as evidence that he
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committed the current offense. As far as discerning whether potential jurors
harbored prejudice relating to Antczak’s possession of child pornography, the
district court covered that by inquiring into whether the nature of the instant
charge—which is similar, but more inflammatory than simple possession of child
pornography—would make jurors incapable of following the court’s instructions or
applying the law. Accordingly, the district court acted within its discretion when it
rejected Antczak’s requested question in favor of the two it asked.
B. Even if Made in Error, the District Court’s Evidentiary Rulings Were Harmless
We use the abuse-of-discretion standard when reviewing the district court’s
decision to admit or exclude evidence. See, e.g., United States v. Smith, 122 F.3d
1355, 1357 (11th Cir. 1997). Further constraining our review of these issues is that
the harmless-error doctrine applies to evidentiary rulings. United States v.
Henderson, 409 F.3d 1293, 1300 (11th Cir. 2005); Fed. R. Evid. 103(a); Fed. R.
Crim. P. 52(a) (providing that, under the harmless error standard, “[a]ny error . . .
that does not affect substantial rights must be disregarded”). Included among those
evidentiary rulings subject to this type of review are decisions admitting evidence
under Rule 404(b), see United States v. Phaknikone, 605 F.3d 1099, 1109 (11th
Cir. 2010), and decisions denying motions to suppress on Fifth Amendment
grounds, see Henderson, 409 F.3d at 1300.
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When a trial judge has purportedly errantly admitted evidence in a criminal
prosecution, we ask whether the errors had a “‘substantial influence’ on the
outcome of a case or [left] ‘grave doubt’ as to whether they affected the outcome
of a case.” United States v. Frazier, 387 F.3d 1244, 1266 (11th Cir. 2004) (en
banc) (quoting Kotteakos v. United States, 328 U.S. 750, 764–65 (1946)).
“Overwhelming evidence of guilt is one factor that may be considered in finding
harmless error.” United States v. Guzman, 167 F.3d 1350, 1353 (11th Cir. 1999);
see also United States v. Chavez, 204 F.3d 1305, 1317 (11th Cir. 2000) (finding
that admission of evidence in violation of Fed. R. Evid. 404(b) was harmless error
because the evidence presented at trial was “substantial” and the defendant’s rights
were not affected).
Here, we need not decide whether Antczak could succeed on the merits of
his evidentiary arguments because even assuming without deciding that he could,
there was overwhelming evidence of his guilt. To illustrate, the Government had
independently of the search of Antczak’s phone, the 500 messages exchanged
among Antczak, Fowler, and “Samantha.” In those 500 messages, which the
Government read to the jury, Antczak was explicit and graphic about his intent to
have sex with “Samantha,” somebody he was told and had no reason to doubt was
just nine years old. Even more illustrative of Antzcak’s desire and his intent to
carry it out, he went to the arranged meeting with a condom (as he was previously
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instructed by Fowler) and an iTunes gift card, which “Samantha” had previously
told him to bring in exchange for sex. Nor did Antczak ever dispute that he was
the one messaging Fowler or that he showed up at the hotel. Indeed, he agrees that
this damaging evidence was “never in dispute.”
In light of this overwhelming evidence and our independent review of the
entire record, we conclude with “fair assurance . . . that the judgment was not
substantially swayed by the error,” even if the district court actually erred.
Kotteakos, 328 U.S. at 765; see also Phaknikone, 605 F.3d at 1109–10 (finding
erroneous admission of evidence from defendant’s internet website, in which he
allegedly portrayed himself as a gangster, was harmless in light of the
overwhelming evidence of his guilt); United States v. Alexander, 835 F.2d 1406,
1411 (11th Cir. 1988) (“[E]ven if the F.B.I. should have obtained a warrant in
these circumstances, the district court’s failure to suppress the evidence was
harmless error.”). Consequently, Antczak’s challenges to the district court’s
evidentiary rulings are denied.
C. The District Court Did Not Abuse Its Discretion in Dismissing a Juror Soon after the jury began deliberating, a juror asked to be relieved. After the
district court questioned the juror about why he wanted to be excused—treading
lightly so as to not disturb the privacy of the jury’s deliberations—the juror stated
that he was unable to follow the court’s instructions. The juror explained that he
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had a friend who had been “catfished” 2 and had subsequently committed suicide.
The juror stated that the evidence that Antczak was “catfished” by someone made
it “impossible” for the juror to follow the court’s instructions.
We “review a district court’s ultimate decision to excuse a juror after the
start of deliberations for abuse of discretion.” United States v. Abbell, 271 F.3d
1286, 1302 (11th Cir. 2001) (citing United States v. Register, 182 F.3d 820, 839
(11th Cir. 1999)). And we afford the district court wide discretion in making that
decision; reversal is appropriate “only if we find that it discharged the juror
‘without factual support, or for a legally irrelevant reason.’” Id. (quoting United
States v. Smith, 918 F.2d 1501, 1512 (11th Cir. 1990)). Because the “demeanor”
of the pertinent juror is important to these determinations, the district court is
“uniquely situated to make the credibility determinations that must be made in
cases like this one: where a juror’s motivations and intentions are at issue.”
Abbell, 271 F.3d at 1303.
Federal Rule of Criminal Procedure 23(b) permits a district court “to excuse
a juror for just cause after the jury has retired to consider its verdict.” Of particular
relevance here, “just cause” exists when a juror refuses to apply the law or to
2 “Catfishing” refers to the phenomenon of internet predators that fabricate online identities to trick people into emotional or romantic relationships. Catfishing, Merriam- Webster Online Dictionary, https://www.merriam-webster.com/dictionary/catfish (last visited Oct. 8, 2018).
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follow the court’s instructions. United States v. Geffrard, 87 F.3d 448, 451–52
(11th Cir. 1996) (excusing a juror who expressed inability to follow judge’s
instructions on the law due to religious beliefs). But the district court must proceed
delicately in assessing the juror and whether good cause exists: “[W]e have
‘caution[ed] district courts to be careful about invading the secrecy of the jury’s
deliberations and to err on the side of too little inquiry as opposed to too much.’”
United States v. Augustin, 661 F.3d 1105, 1133 (11th Cir. 2011) (quoting Abbell,
271 F.3d at 1304 n.20).
Antczak asserts that the district court abused its discretion in dismissing a
juror after deliberations began because the district court neglected to find good
cause before doing so. But the record directly contradicts Antczak’s assertion. In
fact, the district court confirmed that the juror was not requesting to be removed
due to a personality conflict with another juror or due to a temporary illness.
Instead, the juror told the district court that his incapability was no passing storm:
his emotional and personal connection to some of the evidence made it
“impossible” to follow the court’s instructions. Thus, the district court’s inquiry
was sufficient, and the court had good cause to dismiss the juror because the juror
confirmed that he was unable to carry out his most basic duty—following the
court’s instructions. See Geffrard, 87 F.3d at 451–52. This aspect of Antczak’s
appeal is therefore denied.
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D. The District Court Did Not Abuse Its Discretion in Imposing a 360- Month Sentence
Antczak appeals his 360-month sentence, contending that it was both
procedurally and substantively unreasonable because it was higher than the
guidelines range and because the district court neglected to provide sufficient
justification for that upward departure. We review the reasonableness of a
sentence under the familiar abuse-of-discretion standard. See United States v. Irey,
612 F.3d 1160, 1188–89 (11th Cir. 2010) (en banc). Antczak, as the party
challenging the sentence, bears the burden to show that the sentence is
unreasonable in light of the record and the § 3553(a) factors. See United States v.
Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).
We evaluate the reasonableness of the sentence imposed by the district court
by considering the totality of the circumstances. See id. The district court must
impose a sentence sufficient, but not greater than necessary, to comply with the
purposes listed in § 3553(a), including the need to reflect the seriousness of the
offense, promote respect for the law, provide just punishment for the offense, deter
criminal conduct, protect the public from the defendant’s future criminal conduct,
provide the defendant with needed educational and vocational training, and avoid
unwarranted sentencing disparities. 18 U.S.C. § 3553(a)(2), (6). The court must
also consider the nature and circumstances of the offense, and the history and
characteristics of the defendant. Id. § 3553(a)(1). 17 Case: 17-11439 Date Filed: 10/09/2018 Page: 18 of 22
Apportioning weight to the § 3553(a) factors is committed to the sound
discretion of the district court. United States v. Langston, 590 F.3d 1226, 1237
(11th Cir. 2009). We will remand for resentencing only when “‘left with the
definite and firm conviction that the district court committed a clear error of
judgment in weighing the § 3553(a) factors by arriving at a sentence that lies
outside the range of reasonable sentences dictated by the facts of the case.’”
United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008) (quoting United
States v. McBride, 511 F.3d 1293, 1297–98 (11th Cir. 2007)). However, a court
can abuse its discretion when it (1) unjustifiably relies on any one factor, (2)
selects the sentence arbitrarily, (3) bases the sentence on impermissible factors, or
(4) fails to consider relevant factors. Id. at 1191–92.
“A sentence imposed well below the statutory maximum penalty is an
indicator of a reasonable sentence.” United States v. Dougherty, 754 F.3d 1353,
1362 (11th Cir. 2014); United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir.
2008). If the district court “varies from the Guidelines range, it must offer a
justification sufficient to support the degree of the variance.” United States v.
Kuhlman, 711 F.3d 1321, 1326 (11th Cir. 2013).
Here, the district court did not abuse its discretion when imposing the 360-
month sentence even though the guidelines range was 188 to 235 months. For
example, the district judge noted the escalating pattern of Antczak’s conduct—
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increasing from watching child pornography online to attempting to entice a 9-
year-old into sex in real life. The judge also accounted for the fact that though
Antczak previously had been convicted of only felony obscenity, he had actually
possessed eleven pornographic images of children—a fact the judge concluded
rendered Antczak’s Category I criminal-history classification “woefully”
understated. In addition, the district court was troubled by and gave weight to the
fact that Antczak committed the instant offense mere months after he had
completed sex-offender therapy. And while Antczak complains that the court did
not account for his troubled childhood, the record reflects that the judge did, in
fact, give limited weight to that circumstance.
Based on this record, we cannot say that the district court procedurally erred
when imposing Antczak’s sentence. And though the sentence exceeded the high
end of the guidelines range, it still fell far below the statutory maximum penalty of
life imprisonment. See, e.g., Gonzalez, 550 F.3d at 1324 (holding that the sentence
was reasonable in part because it was far below the statutory maximum).
Given the district court’s reasoned and considered explanation of why the
facts in this case warranted a sentence above the guidelines, we conclude the
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district court did not abuse its discretion in sentencing Antczak to 360 months’
imprisonment and that Antczak’s sentence was not substantively unreasonable.3
E. The District Court Did Not Err by Imposing a Lifetime Computer Restriction
The district court restricted Antczak’s cyber life as part of the terms of his
lifetime supervised release: Antczak cannot possess or use a computer unless he
receives prior approval from the court, and any use must be related to authorized
employment. Antczak argues that the lifetime computer restriction violates the
First Amendment, in light of the Supreme Court’s recent decision in Packingham
v. North Carolina, 137 S. Ct. 1730 (2017). In Packingham, the Court concluded
under the circumstances there that foreclosing access to social media violates the
First Amendment. So, Antczak reasons, if the prevention of social-media access
violates the First Amendment, so must use of a computer altogether.
This Court ordinarily reviews the district court’s imposition of conditions of
supervised release for abuse of discretion. See, e.g., United States v. Moran, 573
F.3d 1132, 1137 (11th Cir. 2009). But because Antczak neglected to raise this
3 Antczak contends that it was improper for the district court to consider that he received a break on the felony obscenity charge. But it was not. Antczak’s report placed him in the Criminal History Category I even though that category often includes individuals who have never been previously arrested, let alone convicted. And possessing child pornography— especially where the offender admits to downloading multiple images—can carry a much more substantial sentence than the five months of probation the state court imposed on Antczak. Cf. 18 U.S.C.. § 2252(b)(1) (stating that child pornography conviction carries a mandatory minimum of five years).
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challenge below, we review here for plain error. Id. “‘[T]here can be no plain
error where there is not precedent from the Supreme Court or this Court directly
resolving it.’” United States v. Lange, 862 F.3d 1290, 1298 (11th Cir. 2017)
(quoting United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003); see
also United States v. Carpenter, 803 F.3d 1224, 1239 (11th Cir. 2015) (“Carpenter
must show that some controlling authority clearly established that the court erred
in imposing the challenged conditions. He cannot. Therefore, we need not, and do
not, decide whether the court indeed erred, nor whether Carpenter can meet the
other requirements of plain error review.”).
Packingham does not “directly resolve” Antczak’s appeal since Packingham
dealt with a different issue. Packingham concerned a North Carolina statute that
“impose[d] severe restrictions on persons who already have served their sentence
and are no longer subject to the supervision of the criminal justice system.”
Packingham, 137 S. Ct. at 1737. Put differently, unlike the condition imposed on
Antczak for his past behavior, the statute at issue in Packingham was prospective:
rather than simply punishing a past crime, the statute there made it a new felony
for a person to use all social-media outlets, even though that person had had all
impingements upon his constitutional rights lifted by fully serving the prior
sentence. See id.
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Several other Circuits have noted this distinction and have refused to notice
the error in the same circumstances. See United States v. Halverson, 897 F.3d 645,
658 (5th Cir. 2018) (“[T]he driving concern of the [Packingham] Court was the
imposition of a severe restriction on persons who had served their sentences and
were no longer subject to the supervision of the criminal justice system.”); United
States v. Rock, 863 F.3d 827, 831 (D.C. Cir. 2017) (“The Supreme Court’s recent
decision in Packingham . . . does not make the error plain because Rock’s
condition is imposed as part of his supervised-release sentence, and is not a post-
custodial restriction of the sort imposed on Packingham . . . .”). So Packingham
does not show that the district court plainly erred in imposing a lifetime ban on
Antczak’s computer access.
And in fact, Eleventh Circuit precedent actually upholds the validity of such
a restriction under appropriate circumstances. In United States v. Carpenter, we
found that the district court did not plainly err by imposing a condition of
supervised release that prohibited the defendant from possessing a computer for
life. 803 F.3d at 1237–40. We therefore conclude that Antczak has not
demonstrated error, plain or otherwise.
V.
For the foregoing reasons, we affirm on all issues.
AFFIRMED.