IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-40166 (Summary Calendar)

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TIMOTHY BROOKS,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas (B-99-CR-378-1) -------------------- December 11, 2000 Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Timothy Brooks appeals his conviction and

sentence for transporting child pornography in foreign commerce in

violation of

(a)(1). Brooks first asserts that,

because his indictment did not allege his prior sexual abuse

conviction, his sentence of 30 years under

(b)(1)

is illegal; that he should be subject to only the fifteen-year

statutory maximum under

(a)(1). Brooks

acknowledges that his argument is foreclosed by the Supreme Court's

decision in Almendarez-Torres v. United States,

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. (1998), but maintains that the Supreme Court’s recent decision in

Apprendi v. New Jersey,

(2000), suggests that

the Court should and may well overrule Almendarez-Torres. Brooks

admittedly failed to raise this issue in the district court, so we

review it for plain error. See United States v. Von Meshack,

(5th Cir. 2000).

In Almendarez-Torres, the Supreme Court held that

(b)(2), which increases the maximum sentence for an alien who

illegally reentered the United States if his deportation followed

an aggravated felony conviction, sets forth a sentencing factor and

not a separate criminal offense that must be alleged in the

indictment.

. Although the Apprendi majority noted

that “it is arguable that Almendarez-Torres was incorrectly

decided,” the Court did not overrule that case. See

; United States v. Doggett,

(5th Cir. 2000).

Rather, the Court in Apprendi confirmed that "[o]ther than the fact

of a prior conviction, any fact that increases the penalty for a

crime beyond the prescribed statutory maximum must be submitted to

a jury, and proved beyond a reasonable doubt."

-

63 (emphasis added). Read in conjunction with prior jurisprudence,

the Apprendi decision “clearly indicates that a fact which must be

proved to the jury is an element of the offense that must also be

alleged in the indictment.” Von Meshack,

n.15

(citing Apprendi,

(Thomas, J., concurring);

Jones v. United States,

(1999)). As Brooks’s

increased sentence is based on his prior conviction, that fact was

2 not an element of his offense that had to be alleged in his

indictment and found by the jury. Consequently, Brooks’s sentence

was not illegal. See Apprendi,

.

Brooks also challenges the special supervised release

condition prohibiting him from “frequent[ing], enter[ing], or

remain[ing] in any place, public or private, where children are

known to frequent, gather or congregate.” Brooks contends that the

condition is unconstitutionally vague because he cannot determine

with certainty where he is or is not allowed to go. He also

contends that the condition is overly broad, in that it involves a

greater deprivation of liberty than is reasonably necessary to

afford adequate deterrence or to protect the public.

A district court may impose a discretionary condition of

supervised release if it is consistent with the discretionary

probation condition that a defendant refrain from frequenting

specified kinds of places or from associating unnecessarily with

specified classes of persons, as well as any other supervised

release condition the court considers to be appropriate. See

(b)(6), 3583(d). Te supervised release condition

must, however, meet two criteria. First, the condition must be

reasonably related to (1) “the nature and circumstances of the

offense and the history and characteristics of the defendant,”

(a)(1); (2) the need “to afford adequate deterrence to

criminal conduct,”

(a)(2)(B); (3) the need “to

protect the public from further crimes of the defendant,”

(a)(2)(C); and (4) the need “to provide the defendant with

3 needed educational or vocational training, medical care, or other

correctional treatment in the most effective manner,”

(a)(2)(D). Second, the condition must involve no greater

deprivation of liberty than is reasonably necessary in light of the

factors stated in

(a)(2)(B)-(D). See

(d). The district court’s imposition of a special condition of

supervised release is reviewed for abuse of discretion. United

States v. Coenen,

(5th Cir. 1998).

Construing the condition disputed by Brooks to reach only

those activities that would reasonably relate to his documented

history of seeking out children to photograph or sexually abuse at

places where children are known to gather, in light of his instant

offense of transporting child pornography in foreign commerce and

the need to protect his vulnerable potential victims, the condition

provides him sufficient notice of the proscribed conduct and is not

unconstitutionally vague on its face. See

(a)(2)(B)-(D), 3583(d); see also United States v. Schave,

(7th Cir. 1999); United States v. Romero,

(9th Cir. 1982).

Brooks’s related argument that the disputed condition involves

a greater deprivation of liberty than is reasonably necessary is

based on his overly literal interpretation of the wording of the

condition as prohibiting him from going to “all of the places that

he must frequent in order to survive,” such as grocery stores,

public transportation centers, clothing stores, shopping centers,

doctor’s offices, and hospitals. Given our forgoing construction,

4 however, the condition is an appropriate and reasonably necessary

deprivation of Brooks’s liberty in light of the need to afford

adequate deterrence and to protect the public. See Coenen,

; United States v. Bee,

(9th Cir.

1998). The district court did not abuse its discretion in imposing

this special supervised release condition. See Coenen,

.

The district court’s judgment of conviction and its sentence

are, in all respects,

AFFIRMED.

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