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United States v. Fernandez

United States Court of Appeals, Fifth Circuit

January 14, 2015

UNITED STATES OF AMERICA, Plaintiff - Appellee
v.
FERNANDO FERNANDEZ, Defendant - Appellant

Appeal from the United States District Court for the Western District of Louisiana.

For UNITED STATES OF AMERICA, Plaintiff - Appellee: Carol Mignonne Griffing, Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Louisiana, Shreveport, LA; Brandon Bonaparte Brown, U.S. Attorney's Office, Western District of Louisiana, Shreveport, LA.

For FERNANDO FERNANDEZ, Defendant - Appellant: Betty Lee Marak, Esq., Assistant Federal Public Defender, Federal Public Defender's Office, Western District of Louisiana, Shreveport, LA.

Before STEWART, Chief Judge, and BARKSDALE and GRAVES, Circuit Judges.

OPINION

PER CURIAM:

In 2013, Fernando Fernandez was convicted, pursuant to his guilty plea, of failing to register as a sex offender, in violation of 18 U.S.C. § 2250(a). He challenges

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a life-term special condition of supervised release, requiring him to " install [computer] filtering software . . . block[ing]/monitor[ing] access to sexually oriented websites" for " any computer he possesses or uses" . At issue is whether the court abused its discretion by imposing the software-installation special condition in the light of, inter alia, Fernandez' neither using a computer nor the Internet in committing either his current offense (failing to register as a sex offender) or his underlying sex offense (sexual assault of a child).

SPECIAL CONDITION REQUIRING SOFTWARE-INSTALLATION VACATED; REMANDED FOR ENTRY OF CORRECTED JUDGMENT.

I.

The following facts concerning Fernandez' state offense of sexual assault of a child are provided in his presentence investigation report (PSR), to which neither Fernandez nor the Government objected. In 2003, at age 20, Fernandez committed the following offenses against a 14-year-old: two acts of intercourse and one of oral sex. The PSR does not state the sexual offenses were committed forcibly. In 2005, a Texas state court convicted Fernandez of first-degree sexual assault of a child; he was sentenced to four years' imprisonment and required by Texas law to register as a sex offender for life.

Fernandez was released from prison in Texas in 2009. Later, he moved from Texas to Louisiana, but failed to register in Louisiana as a sex offender, contrary to 18 U.S.C. § 2250(a) ( " Whoever is required to register under the Sex Offender Registration and Notification Act; is a sex offender . . . ; or travels in interstate or foreign commerce . . . ; and knowingly fails to register or update a registration as required by the Sex Offender Registration and Notification Act; shall be fined under this title or imprisoned not more than 10 years, or both." ). In 2013, Fernandez was arrested in Louisiana, after threatening an individual with a knife. It was discovered that he had not registered as a sex offender since moving to the State. He pleaded guilty in 2013 to failing to register as a convicted sex offender.

Fernandez was sentenced, inter alia, to 21 months' imprisonment; the above-referenced special condition imposed a life-term requirement that he, inter alia, install and maintain, at his cost, " filtering software on any computer he possesses or uses which will monitor/block access to sexually oriented websites" . At sentencing, Fernandez objected to the software-installation provision " as being overreaching and overbroad", because " none of his underlying crimes nor . . . [his failure-to-register] crime had anything to do with a computer . . . " . In overruling the objection to the software-installation provision, the court provided the ...


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