USCA11 Case: 21-11142 Date Filed: 03/17/2022 Page: 1 of 4

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

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No. 21-11142 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JOSHUA HAYES,

Defendant-Appellant.

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Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 8:20-cr-00222-CEH-TGW-1 ____________________ USCA11 Case: 21-11142 Date Filed: 03/17/2022 Page: 2 of 4

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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 USCA11 Case: 21-11142 Date Filed: 03/17/2022 Page: 3 of 4

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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) USCA11 Case: 21-11142 Date Filed: 03/17/2022 Page: 4 of 4

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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.