United States v. McDaniel ( 2023 )

Case: 22-10552 Document: 00516738935 Page: 1 Date Filed: 05/04/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
May 4, 2023
No. 22-10552 Lyle W. Cayce
____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
Andrew Stuart McDaniel,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:11-CR-43-1
______________________________
Before Graves, Higginson, and Douglas, Circuit Judges.
Stephen A. Higginson, Circuit Judge:*
Andrew McDaniel pleaded guilty in 2011 to one count of possessing
child pornography. He was sentenced to 97 months imprisonment followed
by a 10-year term of supervised release. After his release, McDaniel filed a
motion under 18 U.S.C. § 3583(e)(2) to modify his original conditions of
supervised release. The district court denied the motion without a hearing.
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*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-10552 Document: 00516738935 Page: 2 Date Filed: 05/04/2023
No. 22-10552
McDaniel appeals and we have jurisdiction under 28 U.S.C. § 1291.1 We
AFFIRM.
I.
McDaniel first argues that the district court erred by refusing to hold
a hearing on his § 3583(e)(2) motion. But McDaniel forfeited this argument
by raising it too late. See Rollins v. Home Depot USA, 8 F.4th 393, 397 (5th Cir.
2021) (explaining that “[a] party forfeits an argument by failing to raise it in
the first instance in the district court”); United States v. Zuniga, 860 F.3d
276, 284 n.9 (5th Cir. 2017) (“Failure to raise a claim to the district court
constitutes a forfeiture . . . of that right for the purposes of appeal.” (internal
quotation marks and citation omitted)).
Below, McDaniel did not argue that the district court was required to
hold a hearing, nor did he request a hearing prior to the court’s denial of his
motion. Instead, his motion to modify explained that “a court may modify
the conditions of supervised release without a hearing” and further certified
that McDaniel “conferred with [the Government] and the Government
waives a hearing on these modifications.” McDaniel’s later motion
requesting findings of fact and conclusions of law under Federal Rule of
Criminal Procedure 23(c) was filed after the district court’s order denying
his motion to modify and after McDaniel filed his notice of appeal to the Fifth
Circuit. We therefore reject this argument as a ground to disturb the district
court’s judgment.
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1
We pretermit the nonjurisdictional questions whether McDaniel’s notice of
appeal was untimely and whether his appeal is barred by an appeal-waiver provision. See
United States v. Martinez, 496 F.3d 387, 388-89 (5th Cir. 2007) (explaining that the time
limit for filing a criminal appeal is not jurisdictional and can be waived); United States v.
Story, 439 F.3d 226, 230-31 (5th Cir. 2006) (noting that appeal waivers do not deprive our
court of jurisdiction).
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II.
McDaniel next challenges the district court’s denial of his motion to
modify a special condition of supervised release that prohibits him from
having unsupervised contact with persons under the age of eighteen.
Specifically, McDaniel seeks to have unsupervised visitation with his
underage daughter. Generally, our court reviews rulings on motions to
modify conditions of supervised release for abuse of discretion. See United
States v. Doyle, 865 F.3d 214, 214-15, 214 n.1 (5th Cir. 2017).2 “A court abuses
its discretion if it bases its decision on an error of law or a clearly erroneous
assessment of the evidence.” United States v. Cooper, 996 F.3d 283, 286 (5th
Cir. 2021) (cleaned up).
The district court did not abuse its discretion by denying McDaniel’s
motion to modify this condition. His crime of conviction involved a violent
pornographic video of a child his daughter’s age, and within the past five
years, McDaniel’s former sex-offender therapist reported that he “is a
serious risk to offend again and . . . is preoccupied with 11 and 12-year-old
girls.” McDaniel strenuously denies his former therapist’s report and
provides polygraph results that support his rehabilitation. But it was not an
abuse of discretion for the district court, when faced with countervailing
evidence, to deny McDaniel’s motion to modify. See Mid-Continent Cas. Co.
v. Davis, 683 F.3d 651, 654 (5th Cir. 2012) (“[W]here there are two
permissible views of the evidence, the factfinder’s choice between them
cannot be clearly erroneous.” (citation omitted)); GIC Servs., L.L.C., v.
Freightplus USA, Inc., 866 F.3d 649, 660 (5th Cir. 2017) (“The existence of
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2
Although McDaniel failed to object to his supervised release conditions at
sentencing, we need not resolve whether his claims should be reviewed for plain error
because he is not entitled to relief even under the abuse-of-discretion standard. See Doyle,
865 F.3d at 214 n.1.
3
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conflicting evidence is precisely the context in which we defer to the district
court’s factual findings.”). We note, moreover, that McDaniel’s conditions
permit supervised visitation, and he is free to request a modification of this
condition again if he can demonstrate a change of circumstances, particularly
with respect to the state family court’s oversight of his relationship with his
daughter.
III.
McDaniel also requests permission to use a bow and arrow to hunt on
his family farm. He makes two distinct arguments.
First, he argues that his conditions of supervised release permit him to
use a bow and arrow to hunt on his family farm. He claims the condition in
question, which proscribes his possession of “a firearm, destructive device
or any other dangerous weapon,” does not encompass a bow and arrow used
for hunting purposes. But McDaniel did not raise this argument before the
district court. He has therefore forfeited the argument on appeal. Rollins, 8
F.4th at 397; Zuniga, 860 F.3d at 284 n.9.3
Second, McDaniel argues that, assuming his conditions of supervised
release prohibit his use of a bow and arrow, the district court abused its
discretion by denying his motion to modify because he has exhibited no
violent behavior that could justify such a restriction. But McDaniel’s crime
of conviction involved video of violent “sadistic and masochistic abuse” of a
child. Moreover, McDaniel’s parole officer recommended denying his
motion for modification because “McDaniel has demonstrated aggressive
behaviors, including being charged with stalking his ex-wife” and aggressive
behaviors toward his former therapist. His former therapist also stated that
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3
Again, McDaniel did not object to the dangerous weapon condition as vague or
ill-defined at sentencing. Nor did he do so on direct appeal.
4
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McDaniel “has a pathological obsession with his ex-wife and can turn in a
heartbeat.”
Once again, McDaniel strenuously contests his parole officer’s and
former therapist’s claims and alleges countervailing evidence. McDaniel
reports that his current therapist, for example, claims that the stalking
charge, which was dropped, was “not valid” and “not legitimate.” Even still,
it is not an abuse of discretion for the district court, when faced with
countervailing evidence, to deny McDaniel’s motion to modify. See Mid-
Continent Cas. Co., 683 F.3d at 654; GIC Servs., L.L.C., 866 F.3d at 660.
AFFIRMED.
5