United States v. James Markwith ( 2013 )

Case: 13-10020 Document: 00512415227 Page: 1 Date Filed: 10/21/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 21, 2013
No. 13-10020
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JAMES R. MARKWITH,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:12-CR-138-1
Before DAVIS, SOUTHWICK, and HIGGINGSON, Circuit Judges.
PER CURIAM:*
James R. Markwith pled guilty to one count of transporting and
distributing a visual depiction of a minor engaging in sexually explicit conduct,
intending that the depiction would be imported into the United States. The
district court sentenced Markwith to 240 months imprisonment to be followed
by a lifetime term of supervised release. Markwith appeals the imposition of two
special conditions of supervised release. We affirm.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 13-10020
Although Markwith asserts that we should review the conditions for an
abuse of discretion, he fails to note that he raised no objection to the supervised
release conditions in the district court. We review instead for plain error. See
United States v. Weatherton, 567 F.3d 149, 152 (5th Cir. 2009).
Markwith first asserts that the special condition that he have no contact
with persons under 18 is excessive and infringes on his right of association.
Although acknowledging that we upheld a similar no-contact ban in United
States v. Rodriguez, 558 F.3d 408, 417-18 (5th Cir. 2009), he contends that his
case is distinguishable because there is no provision to seek prior approval by a
probation officer, the condition is for life, and his prior sex offense is disputed.
As an initial matter, Markwith’s contention that his prior sex offense is
disputed is without merit. The presentence report provides that he admitted to
FBI agents that he had sexually abused his minor stepdaughter and that he
recorded a video of his fiancée’s minor daughter while she was changing clothes.
There is nothing in the record indicating that he disputed this information.
With respect to the lifetime nature of the no-contact provision and the lack
of exception for prior approval, we upheld a similar condition in United States
v. Ellis, 720 F.3d 220, 225-26 (5th Cir. 2013), where, as here, a separate
condition permitted approval for incidental contact with children. Although the
provision in this case for prior approval is not identical to that in Ellis, we
conclude that any error there may have been is not clear or obvious. See Puckett
v. United States, 556 U.S. 129, 135 (2009). Even if we were to find clear or
obvious error, Markwith fails to address whether such error affects his
substantial rights or why this court should exercise its discretion to correct the
error. Thus, we decline to correct any error. See United States v. Williams, 620
F.3d 483, 496 (5th Cir. 2010).
Markwith also challenges the condition that he not have access to or loiter
near school grounds, parks, arcades, playgrounds, amusement parks, or other
places where children frequently congregate without advance approval by his
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No. 13-10020
probation officer. According to Markwith, there is no evidence that he ever
sought out children in such public places. However, in Ellis, 720 F.3d at 226, we
concluded that the defendant’s child pornography offense, together with evidence
that he had molested children in the past, supported a similar condition despite
the lack of evidence that the defendant had targeted children in public. Given
Markwith’s child pornography offense, his sexual abuse of his minor
stepdaughter, and his recording of his fiancée’s minor daughter, there was no
abuse of discretion – and certainly no clear or obvious error – in the imposition
of the condition. See id. We likewise reject Markwith’s contention that the
conditions are cumulatively excessive. See id. at 227.
AFFIRMED.
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