United States v. Delacruz ( 2023 )

Case: 21-20634 Document: 00516696784 Page: 1 Date Filed: 03/31/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
____________ FILED
March 31, 2023
No. 21-20634 Lyle W. Cayce
Summary Calendar Clerk
____________
United States of America,
Plaintiff—Appellee,
versus
Andrew Blake Delacruz,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:20-CR-334-1
______________________________
Before Jones, Haynes, and Oldham, Circuit Judges.
Per Curiam: *
Andrew Blake Delacruz pleaded guilty to possessing, producing, and
distributing child pornography and was sentenced to a total of 720 months of
imprisonment followed by concurrent, lifetime terms of supervised release.
For the first time on appeal, he challenges the imposition of a discretionary
condition of supervised release which imposes a lifetime ban on his use of
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5. Judge
Oldham concurs in the judgment only.
Case: 21-20634 Document: 00516696784 Page: 2 Date Filed: 03/31/2023
No. 21-20634
computers and other electronic communications, data-storage, and media
devices without prior approval from his probation officer.
Our review is for plain error, as Delacruz did not object to the
condition when the district court pronounced it at sentencing. See United
States v. Grogan, 977 F.3d 348, 352 (5th Cir. 2020). To demonstrate plain
error, Delacruz must show a forfeited error that is clear or obvious and that
affects his substantial rights. See Puckett v. United States, 556 U.S. 129, 135
(2009). If he makes such a showing, we have the discretion to correct the
error only if it “seriously affects the fairness, integrity or public reputation of
judicial proceedings.” Id. (internal quotation marks, alteration, and citation
omitted).
Delacruz argues that the challenged condition is unreasonably
restrictive to the extent it requires him to request permission every time he
needs to use a covered device. The Government argues that when the
condition is read in conjunction with a related supervised release condition
regarding ongoing computer monitoring, it is reasonably clear that the district
court did not intend to require Delacruz to seek prior approval for every
instance of Internet access.
While we have found an absolute lifetime ban on computer and
Internet access to be a greater deprivation of liberty than is reasonable, United
States v. Duke, 788 F.3d 392, 400–01 (5th Cir. 2015) (per curiam), we have
previously approved restrictions that were, like Delacruz’s, conditioned on
approval by the court or by a probation officer, see United States v. Ellis, 720
F.3d 220, 225 (5th Cir. 2013) (per curiam). However, even where access is
conditioned on probation officer approval, such conditions are still
“unreasonably restrictive” to the extent they require the defendant “to
request permission every time he needs to use a computer, or every time he
2
Case: 21-20634 Document: 00516696784 Page: 3 Date Filed: 03/31/2023
No. 21-20634
needs to access the Internet.” United States v. Sealed Juvenile, 781 F.3d 747,
756 (5th Cir. 2015).
Against this backdrop, it is not obvious to us that the district court’s
decision to impose this condition was error. Even if there were error, we
cannot hold that the error was plain. Although it is not entirely clear whether
the challenged condition, as written, would require separate, pre-use
approvals by Delacruz’s probation officer each time Delacruz sought to use
a covered device or access the Internet, “[t]his circuit has repeatedly stated
conditions of supervised release . . . should be read in a commonsense way.”
Ellis, 720 F.3d at 226 (internal quotation marks and citation omitted).
Applying this commonsense interpretation, we conclude the challenged
condition does not require Delacruz to seek prior approval every time he uses
a covered device or accesses the Internet. See United States v. Naidoo, 995
F.3d 367, 384 (5th Cir. 2021); Sealed Juvenile, 781 F.3d at 756–57. So
construed, the conditions are not unreasonable or over restrictive.
Accordingly, we hold that the district court did not commit any plain error.
The judgment of the district court is AFFIRMED.
3