Case: 15-10549 Document: 00513944341 Page: 1 Date Filed: 04/07/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 15-10549
Fifth Circuit
FILED
Summary Calendar April 7, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
BILLY RAY DOYLE,
Defendant-Appellant
Appeals from the United States District Court
for the Northern District of Texas
Before CLEMENT, PRADO, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
Billy Ray Doyle, federal prisoner # 45620-177, pleaded guilty to one
count of attempted transfer of obscene material to a minor. The district court
sentenced Doyle to 48 months of imprisonment and three years of supervised
release, and he did not appeal. Doyle moves for leave to proceed in forma
pauperis (IFP) from the district court’s denial of his motion to modify
conditions of supervised release pursuant to 18 U.S.C. § 3583(e) and also moves
this court to modify certain conditions of his supervised release.
By moving to proceed IFP, Doyle is challenging the district court’s
certification decision that this appeal was not taken in good faith. See Baugh
v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our inquiry into an appellant’s
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No. 15-10549
good faith “is limited to whether the appeal involves legal points arguable on
their merits (and therefore not frivolous).” Howard v. King, 707 F.2d 215, 220
(5th Cir. 1983) (internal quotation marks and citation omitted). 1
Even if Doyle’s challenge to the special condition prohibiting him from
possessing a computer or internet connection device without permission of the
court were not premature, see United States v. Carmichael, 343 F.3d 756, 761–
62 (5th Cir. 2003) (internal quotation marks and footnote omitted), he has
failed to show that the district court abused its discretion in declining to modify
the condition. The district court denied the motion to modify based on the
nature and facts of the offense, and Doyle admitted in the district court that
he posted an advertisement soliciting companionship on an internet site and
that he emailed a photograph of his penis to a male who he thought was 15
years old. Doyle does not address the district court’s reasoning or acknowledge
the extensive role that the computer and internet played in his offense, nor
does he acknowledge that the condition he opposes is one he can avoid with
permission of the court, and therefore he has failed to show any reversible error
with respect to this finding.
Doyle cannot demonstrate a nonfrivolous issue for appeal with respect to
the district court’s denial of his motion to modify conditions of supervised
release. Accordingly, his motion for IFP is DENIED, and his appeal is
DISMISSED. See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.
With respect to Doyle’s motion to modify conditions of supervised release
filed here, he must move for modification in the district court pursuant to
1 Although Doyle did not object to the conditions of his supervised release at
sentencing, we do not decide whether his claims should be reviewed for plain error because
he is not entitled to relief even under the less deferential abuse of discretion standard. See
United States v. Insaulgarat, 289 F. App’x 738, 740–41 (5th Cir. 2008). “A district court
abuses its discretion if it bases its decision on an error of law or a clearly erroneous
assessment of the evidence.” United States v. Castillo, 430 F.3d 230, 239–40 (5th Cir. 2005)
(internal quotation marks and citation omitted).
2
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No. 15-10549
pursuant to § 3583(e) and Federal Rule of Criminal Procedure 32.1(c).
Accordingly, his motion to modify conditions of supervised release is also
DENIED.
3