United States v. Brooks ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40166
(Summary Calendar)
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TIMOTHY BROOKS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
(B-99-CR-378-1)
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December 11, 2000
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Timothy Brooks appeals his conviction and
sentence for transporting child pornography in foreign commerce in
violation of 18 U.S.C. § 2252(a)(1). Brooks first asserts that,
because his indictment did not allege his prior sexual abuse
conviction, his sentence of 30 years under 18 U.S.C. § 2252(b)(1)
is illegal; that he should be subject to only the fifteen-year
statutory maximum under 18 U.S.C. § 2252(a)(1). Brooks
acknowledges that his argument is foreclosed by the Supreme Court's
decision in Almendarez-Torres v. United States, 523 U.S. 224*
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that this opinion should not be published and is not precedent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.
(1998), but maintains that the Supreme Court’s recent decision in
Apprendi v. New Jersey, 120 S. Ct. 2348, 2362 (2000), suggests that
the Court should and may well overrule Almendarez-Torres. Brooks
admittedly failed to raise this issue in the district court, so we
review it for plain error. See United States v. Von Meshack, 225
F.3d 556, 575 (5th Cir. 2000).
In Almendarez-Torres, the Supreme Court held that 8 U.S.C.
§ 1326(b)(2), which increases the maximum sentence for an alien who
illegally reentered the United States if his deportation followed
an aggravated felony conviction, sets forth a sentencing factor and
not a separate criminal offense that must be alleged in the
indictment. 523 U.S. at 235. Although the Apprendi majority noted
that “it is arguable that Almendarez-Torres was incorrectly
decided,” the Court did not overrule that case. See 120 S. Ct. at
2362; United States v. Doggett, 230 F.3d 160, 166 (5th Cir. 2000).
Rather, the Court in Apprendi confirmed that "[o]ther than the fact
of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted to
a jury, and proved beyond a reasonable doubt." 120 S. Ct. at 2362-
63 (emphasis added). Read in conjunction with prior jurisprudence,
the Apprendi decision “clearly indicates that a fact which must be
proved to the jury is an element of the offense that must also be
alleged in the indictment.” Von Meshack, 225 F.3d at 575 n.15
(citing Apprendi, 120 S. Ct. at 2368 (Thomas, J., concurring);
Jones v. United States, 526 U.S. 227, 232 (1999)). As Brooks’s
increased sentence is based on his prior conviction, that fact was
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not an element of his offense that had to be alleged in his
indictment and found by the jury. Consequently, Brooks’s sentence
was not illegal. See Apprendi, 120 S. Ct. at 2362-63.
Brooks also challenges the special supervised release
condition prohibiting him from “frequent[ing], enter[ing], or
remain[ing] in any place, public or private, where children are
known to frequent, gather or congregate.” Brooks contends that the
condition is unconstitutionally vague because he cannot determine
with certainty where he is or is not allowed to go. He also
contends that the condition is overly broad, in that it involves a
greater deprivation of liberty than is reasonably necessary to
afford adequate deterrence or to protect the public.
A district court may impose a discretionary condition of
supervised release if it is consistent with the discretionary
probation condition that a defendant refrain from frequenting
specified kinds of places or from associating unnecessarily with
specified classes of persons, as well as any other supervised
release condition the court considers to be appropriate. See 18
U.S.C. §§ 3563(b)(6), 3583(d). Te supervised release condition
must, however, meet two criteria. First, the condition must be
reasonably related to (1) “the nature and circumstances of the
offense and the history and characteristics of the defendant,” 18
U.S.C. § 3553(a)(1); (2) the need “to afford adequate deterrence to
criminal conduct,” 18 U.S.C. § 3553(a)(2)(B); (3) the need “to
protect the public from further crimes of the defendant,” 18 U.S.C.
§ 3553(a)(2)(C); and (4) the need “to provide the defendant with
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needed educational or vocational training, medical care, or other
correctional treatment in the most effective manner,” 18 U.S.C. §
3553(a)(2)(D). Second, the condition must involve no greater
deprivation of liberty than is reasonably necessary in light of the
factors stated in 18 U.S.C. § 3553(a)(2)(B)-(D). See 18 U.S.C. §
3583(d). The district court’s imposition of a special condition of
supervised release is reviewed for abuse of discretion. United
States v. Coenen, 135 F.3d 938, 940 (5th Cir. 1998).
Construing the condition disputed by Brooks to reach only
those activities that would reasonably relate to his documented
history of seeking out children to photograph or sexually abuse at
places where children are known to gather, in light of his instant
offense of transporting child pornography in foreign commerce and
the need to protect his vulnerable potential victims, the condition
provides him sufficient notice of the proscribed conduct and is not
unconstitutionally vague on its face. See 18 U.S.C. §§
3553(a)(2)(B)-(D), 3583(d); see also United States v. Schave, 186
F.3d 839, 843-44 (7th Cir. 1999); United States v. Romero, 676 F.2d
406, 407-08 (9th Cir. 1982).
Brooks’s related argument that the disputed condition involves
a greater deprivation of liberty than is reasonably necessary is
based on his overly literal interpretation of the wording of the
condition as prohibiting him from going to “all of the places that
he must frequent in order to survive,” such as grocery stores,
public transportation centers, clothing stores, shopping centers,
doctor’s offices, and hospitals. Given our forgoing construction,
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however, the condition is an appropriate and reasonably necessary
deprivation of Brooks’s liberty in light of the need to afford
adequate deterrence and to protect the public. See Coenen, 135
F.3d at 945; United States v. Bee, 162 F.3d 1232, 1235-36 (9th Cir.
1998). The district court did not abuse its discretion in imposing
this special supervised release condition. See Coenen, 135 F.3d at
940.
The district court’s judgment of conviction and its sentence
are, in all respects,
AFFIRMED.
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