USA v. Joshua Hayes

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11142
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSHUA HAYES,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:20-cr-00222-CEH-TGW-1
____________________
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2 Opinion of the Court 21-11142
Before JILL PRYOR, BRANCH, and BRASHER, Circuit Judges.
PER CURIAM:
Joshua Hayes appeals his sentence following his conviction
on two counts of producing child pornography and one count of
possession of child pornography. Specifically, he challenges one of
the supervised release conditions, Standard Condition (12), im-
posed by the district court under U.S.S.G. § 5D1.3(c)(12). That con-
dition allows a probation officer to require Hayes to notify an indi-
vidual if the probation officer determines that Hayes poses a risk to
that individual. Hayes argues for the first time on appeal that the
condition is an unconstitutional delegation of judicial authority and
unconstitutionally vague. Reviewing only for plain error, we af-
firm.
I.
In February 2020, the Department of Homeland Security re-
ceived a report that someone with the username “DaddyJ” had
posted images online of two prepubescent girls in the shower and
was soliciting advice on how to groom the older of the two girls to
have sexual intercourse with him. The subsequent investigation
led DHS agents to a residence in Mulberry, Florida, where Joshua
Hayes lived with his girlfriend and their two daughters, aged two
and nine. Hayes admitted that he had taken photographs of his
two- and nine-year-old daughters, fully nude, and sent those im-
ages over the internet under the username “DaddyJ.” Hayes also
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21-11142 Opinion of the Court 3
admitted that he had downloaded images of child pornography de-
picting other children. Hayes eventually pleaded guilty to two
counts of producing child pornography in violation of 18 U.S.C. §
2551(a) and (e) and one count of possession of child pornography
in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2).
The district court sentenced Hayes to twenty years’ impris-
onment on the two production counts and a consecutive term of
twenty years’ imprisonment on the possession count, followed by
thirty years of supervised release. As a condition of Hayes’ super-
vised release, the district court imposed Standard Condition (12),
which provides: “If the probation officer determines that the de-
fendant poses a risk to another person (including an organization),
the probation officer may require the defendant to notify the per-
son about the risk and the defendant shall comply with that instruc-
tion.” U.S.S.G. § 5D1.3(c)(12). In addition, “[t]he probation officer
may contact the person and confirm that the defendant has notified
the person about the risk.”
Id.
Hayes did not object to this condition at sentencing despite
being given an opportunity to do so.
II.
Questions of constitutional law are reviewed for plain error
when raised for the first time on appeal.
United States v. Nash, 438
F.3d, 1302, 1304 (11th Cir. 2006). On plain error review, we will not
correct an unpreserved error unless the district court's error (1) was
plain, (2) affected the defendant's substantial rights, and (3)
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4 Opinion of the Court 21-11142
seriously affected the fairness, integrity, or public reputation of ju-
dicial proceedings.
United States v. Innocent, 977 F.3d 1077, 1081
(11th Cir. 2020). “An error is plain if . . . the explicit language of a
statute or rule or precedent from the Supreme Court or this Court
directly resolv[es] the issue.”
Id. (cleaned up). “[T]here can be no
plain error where there is no precedent from the Supreme Court
or this Court directly resolving it.”
United States v. Lange, 862 F.3d
1290, 1296 (11th Cir. 2017). An error affects a defendant's substan-
tial rights “if there is a reasonable probability of a different result
absent the error,”
United States v. Hesser, 800 F.3d 1310, 1325 (11th
Cir. 2015), which means “a probability sufficient to undermine con-
fidence in the outcome,”
United States v. Rodriguez, 398 F.3d 1291
(11th Cir. 2005) (quotation omitted). And it is the defendant's bur-
den to establish such a probability.
United States v. Margarita Gar-
cia, 906 F.3d 1255, 1267 (11th Cir. 2018).
III.
Hayes argues for the first time on appeal that Standard Con-
dition (12) is an unconstitutional delegation of judicial authority
and unconstitutionally vague. But Hayes has not shown that the
district court plainly erred because there is no precedent from this
Court or the Supreme Court demonstrating that Standard Condi-
tion (12) unconstitutionally delegates judicial authority or is uncon-
stitutionally vague.
See Lange, 862 F.3d at 1296
. Accordingly, the
district court is AFFIRMED.
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