United States v. Porter

43 F.4th 467

UNITED STATES of America, Plaintiff—Appellee,

v.Jordan Michael PORTER, Defendant—Appellant.

No. 21-10817

United States Court of Appeals, Fifth Circuit.

FILED August 5, 2022

Brian W. McKay, Esq., Leigha Amy Simonton, Assistant U.S. Attorneys, Elise Aldendifer, U.S. Attorney's Office, Northern District of Texas, Dallas, TX, for Plaintiff—Appellee.

Kevin Joel Page, Juan Gabriel Rodriguez, Federal Public Defender's Office, Northern District of Texas, Dallas, TX, for Defendant—Appellant.

Before Richman, Chief Judge, and Wiener and Willett, Circuit Judges.

Don R. Willett, Circuit Judge:

In this sentencing appeal following a child pornography conviction, Appellant asks us to disturb the district court's revocation judgment, claiming the judge (1) relied on unsworn statements by the prosecutor, and (2) announced conditions of supervised release that conflicted with the written judgment. But the record belies both claims. For one, ample evidence supported the prosecutor's comments—precluding any legitimate claim of plain error. Second, the record reveals that the challenged discrepancy produced nothing more than ambiguity that is resolved by the district court's clearly expressed intent: reimposition of the original conditions of supervised release. We AFFIRM.

I

Jordan Michael Porter pleaded guilty to receipt of child pornography in violation of 18 U.S.C. § 2252A(a)(2). The district court sentenced Porter to 84 months of imprisonment followed by a 10-year term of supervised release. Porter unsuccessfully appealed.¹

It took less than a year after his release for Porter to violate the terms of supervision. Specifically, Porter possessed unauthorized cellular devices, failed to attend sex offender treatment,² failed to report as directed, and viewed pornographic materials. Porter later attended an administrative hearing at which his probation officer (and the supervisory probation officer) "made sure ... Porter had a clear understanding of all his conditions." Thereafter, Porter's probation officer made an official report to the district court and recommended no formal action.

Two months passed before Porter again found himself in hot water. As before, Porter failed to submit his monthly supervision report or participate in his sex offender treatment. The probation officer also reported that Porter was found in possession of another unauthorized cell phone, which he initially denied but later admitted. Porter surrendered the phone, and the resulting search revealed a variety of unauthorized photographs depicting scantily clad women. It also seemed that Porter erased some of the phone's contents before turning it over. The probation officer directed Porter to schedule a polygraph examination, but Porter never did. Porter's probation officer subsequently reported this behavior to the district court under penalty of perjury and, this time, sought revocation of Porter's supervised release.³

Porter pleaded true to the probation officer's reports and asked the court to continue (rather than revoke) his supervision. In support, Porter offered a host of explanations for his noncompliance, expressed a desire to get back into treatment, and voiced understanding that the original conditions of supervised release were mandatory.

The prosecutor was unconvinced. In particular, she explained "[i]t seems to me that from talking to probation he has not taken [the conditions of his supervised release] seriously at all." She also argued that Porter "doesn't want to do it, and he may [say] something different today when he is faced with more prison time," but "he has given little to no effort according to probation." The prosecutor then requested that the court impose a nine-month custodial sentence and return Porter to "supervised release for the entire term or what is remaining of the [original] term of supervised release."

The district court ultimately revoked Porter's supervised release and sentenced him to nine months of imprisonment. In particular, the judge believed revocation was justified by "the record and ... evidence ... produced [during the hearing] ... as well as that set forth in the [probation officer's] [p]etition." The judge also commented that he "agree[d] with the government," explaining that he had "looked over things and [concluded] there ha[d] been significant noncompliance." As for the term of imprisonment, the judge made clear that the nine-month sentence was "fair, just, and reasonable" as well as "necessary for deterrence and protection of the public."

The judge then stated—twice—that he was "reimpos[ing] the ten years [of supervised release] that [the court] initially imposed." Rather than stop there, the judge also sought clarification from Porter's probation officer: "[i]s it necessary for the [c]ourt to read all of these conditions or is it sufficient ... to state that [the court] reimposes the conditions previously imposed?"

Unfortunately, the record does not reflect an answer to this question.⁴ But what happened next is still helpful: Porter's probation officer affirmed that (1)"they are the same conditions," and (2) Porter's counsel affirmed that Porter was "familiar with those initial conditions." The judge then turned his focus directly to Porter, asking "do you know what those conditions are? The [c]ourt does not want the case to come back ... because of some technicality." "I have no problem reading them into the record," the judge went on, "but I want to make certain nothing is going to be said later on that you were not aware of the terms or conditions of your supervision."

It appears the judge did not wait for an answer. Instead, "[o]ut of abundance of caution," he read the conditions in an attempt to avoid any "misunderstanding as to what the [c]ourt imposed." The following was among the conditions orally pronounced:

You must not view or possess any visual depiction as defined by Title 18 United States Code Section 2256(5) including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic—electronic, mechanical or other means of sexually explicit conduct as defined in Title 18 United States Code Section 2256(2).

The written judgment, however, contained the following condition of supervised release, which also appeared in the court's original judgment of conviction:

The defendant shall neither possess nor have under his control any sexually oriented, or sexually stimulating materials of adults or children. This includes visual, auditory, telephonic, electronic media, email, chat communications, instant messaging, or computer programs. The defendant shall not patronize any place where such material or entertainment is available. The defendant shall not use any sex-related telephone numbers.

Porter filed a timely notice of appeal.

II

Porter argues that the district court erred by (1) relying on the prosecutor's unsworn statements to revoke Porter's supervised release, and (2) imposing conditions of supervised release in the written judgment that were more burdensome than those orally pronounced. As explained below, neither argument has merit.

A

The standard of review governing Porter's first claim is clear-cut. Porter made no objection to the district court's alleged reliance on unsworn statements, which means Porter must now demonstrate plain error. That is, he must identify "(1) an error, (2) that is clear or obvious, and (3) that affects his substantial rights."⁵ Only once these conditions are met may we then "exercise discretion to correct the error, ... if (4) th[at] error seriously affects the fairness, integrity, or public reputation of judicial proceedings."⁶

For at least two reasons, Porter cannot shoulder his burden. First, his claim of error relies principally on United States v. Foley , 946 F.3d 681 (5th Cir. 2020). But Foley and this case are leagues apart. The district court in Foley erred by relying on a revocation petition (to which the appellant did not plead true) that "contain[ed] only bare allegations" and did not "provide any context regarding the underlying facts and circumstances surrounding [either his] arrest or his conduct leading to the arrest."⁷ Here, however, the prosecutor's comments were not only corroborated by the detailed, sworn assertions in the revocation petition, but the petition also came with a potpourri of evidence memorializing Porter's repeated noncompliance—ranging from signed notices of program failures to the extraction report that catalogued each unauthorized image found on the unauthorized device. Porter's reliance on Foley is misplaced.

Second, even were we to assume plain or obvious error, Porter cannot demonstrate any impact upon his substantial rights. This much is evident in his concession that "the court might have found that ... [Porter] lacked respect for the conditions of supervision even if the [p]rosecutor had not related the views of [p]robation." Even the most cursory review of Porter's revocation petition demonstrates his indifference to the conditions of supervision.⁸ Neither can we overlook the fact that Porter pleaded true to the allegations in the revocation petition.⁹

B

The standard of review for Porter's second claim is similarly straightforward. We review discrepancies between an oral pronouncement and written judgment for an abuse of discretion when "the defendant had no opportunity to object to the unpronounced conditions," and we review for plain error "if [the defendant] had the opportunity but failed to object."¹⁰

This case resides in the latter category. Not only did the district court twice state that it was "reimpos[ing] the ten years [of supervised release] that [the court] initially imposed," but the judge subsequently asked Porter's probation officer whether it was "sufficient ... to state that [the court] reimposes the conditions previously imposed" and questioned both Porter and his counsel as to whether Porter was "familiar with those initial...