United States v. Brandon Boshears ( 2020 )

Case: 19-10700 Document: 00515466232 Page: 1 Date Filed: 06/25/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 19-10700
Fifth Circuit
FILED
Summary Calendar June 25, 2020
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
BRANDON CORY BOSHEARS,
Defendant-Appellant
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 6:13-CR-066
Before HIGGINBOTHAM, HO, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
After Brandon Cory Boshears completed his 57-month term of
imprisonment for possessing child pornography, he was released to begin his
10-year term of supervision. Shortly thereafter, Boshears violated two
conditions of his release when he (1) consumed alcohol on one occasion and
(2) had contact with his minor children five times. The district court found
that Boshears had committed the violations and imposed additional special
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-10700
conditions of release for another 10-year term of supervision, three of which
Boshears challenges on appeal.
Boshears first argues that the special condition prohibiting entirely his
use of alcohol and other intoxicants, which appears in the written judgment,
constitutes a conflict that must be corrected because it was not announced at
sentencing. The Government agrees. Where there is a conflict between the
oral pronouncement of a sentence and the written judgment, the oral
pronouncement controls. United States v. Torres-Aguilar, 352 F.3d 934, 935-
36 (5th Cir. 2003). We therefore remand for the limited purpose of allowing
the district court to conform the written judgment to the oral pronouncement
by removing the blanket prohibition on use of alcohol and other intoxicants.
See 28 U.S.C. § 2106; United States v. Martinez, 250 F.3d 941, 942 (5th Cir.
2001).
Boshears’s next two appellate arguments concern prohibitions on his
computer and internet use as well as his contact with minors. When a
defendant fails to object in the district court to the imposition of a special
condition, we review for plain error. United States v. Salazar, 743 F.3d 445,
448 (5th Cir. 2014). To prevail on plain error review, a defendant must show
that an error occurred, that the error was clear or obvious, and that the error
affected his substantial rights. Puckett v. United States, 556 U.S. 129, 135
(2009). If those factors are established, this court should exercise its discretion
to correct such an error only if it seriously affects the fairness, integrity, or
public reputation of judicial proceedings. Id.Boshears argues that the district court plainly erred when it imposed a
special condition prohibiting him from accessing or using “a computer or
internet connect device without first getting permission of the Court.” He
contends this condition is unreasonably restrictive because it requires him to
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request permission each and every time he needs to use a computer or access
the internet. He requests a remand so that the district court can modify or
amend the condition to ensure that “it is not construed or enforced in such a
manner that [he] would be required to seek prior approval . . . every single time
he must use a computer or access the Internet.”
In United States v. Sealed Juvenile, 781 F.3d 747, 756-57 (5th Cir. 2015),
we considered a similar condition under the abuse of discretion standard. We
affirmed the condition as modified by instructing the district court that it was
not allowed to construe or enforce the condition “in such a manner that [the
defendant] would be required to seek prior written approval every single time
he must use a computer or access the Internet.” Id.; see also United States v.
Guerra, 856 F.3d 368, 370 (5th Cir. 2017) (using the same approach on plain
error review—affirmed as modified—to resolve doubt over how to interpret a
special condition providing for mental health and drug treatment).
During the course of this appeal, the district court amended the condition
in response to a motion filed by Boshears after he had filed his notice of appeal.
Specifically, the district court’s October 10, 2019 order authorizes Boshears to
“use a computer with an internet connection to search for employment
opportunities at Texas Workforce Solutions and elsewhere, enroll in CDL
school, and [] work on a personal resume.” The order also provides that
“Boshears may use his military education benefits to enroll in online small
business and accounting courses.”
Based on this record, we presently have no reason to doubt that the
district court will continue to heed the instruction provided in United States v.
Sealed Juvenile regarding the proper construction of the previously imposed
computer/internet access condition. Indeed, nothing in the condition, as
written, prohibits Boshears from requesting approval for other categories of
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internet usage. Nevertheless, we reiterate that the condition is not be
construed or enforced “in such a manner that Boshears is required to seek prior
written approval every single time he must use a computer or access the
Internet.” To the contrary, in both imposing and enforcing such conditions,
district courts must carefully balance the need for restriction with the
important role that computer and internet access have in today’s society.
Lastly, Boshears argues that the district court plainly erred when it
imposed a special condition prohibiting him from having contact with minors
under the age of eighteen without advance probation officer approval, except
that (as amended in June 2019) Boshears is permitted “to visit with and have
communication with his children if done with the consent of and supervision of
his wife.” Boshears contends that this condition is unreasonably restrictive and
causes a greater deprivation than necessary because his behavior never
involved “sexual offenses or offenses against children” and because the
condition prevents him from living with his wife and two minor children.
Boshears has not demonstrated a clear or obvious error. We have
routinely upheld restrictive conditions in child pornography cases similar to
Boshears’s, including cases where the defendants had not sexually assaulted
children. See United States v. Ellis, 720 F.3d 220, 225-26 (5th Cir. 2013);
United States v. Rodriguez, 558 F.3d 408, 417–18 (5th Cir. 2009); United States
v. Buchanan, 485 F.3d 274, 287–88 (5th Cir. 2007); United States v. Paul, 274
F.3d 155, 165–67 (5th Cir. 2001). Here, Boshears is allowed contact with
minors upon advance approval of the probation officer and, as a result of the
June 18, 2019 amendment of the June 7, 2019 judgment, is allowed to visit and
communicate with his own children (without advance approval of the probation
officer) if done so with the consent and supervision of his wife. Furthermore,
assuming Boshears remains in compliance with the conditions of his release,
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nothing precludes him from asking, in the future, that the judgment again be
modified so as to allow him more time with his children.
As stated herein, the judgment of the district court is AFFIRMED as
MODIFIED. We REMAND the case to the district court for the limited purpose
of conforming the written judgment to the district court’s oral pronouncement.
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