     Case: 18-50509    Document: 00515154922       Page: 1   Date Filed: 10/10/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                  United States Court of Appeals

                                    No. 18-50509
                                                                           Fifth Circuit

                                                                         FILED
                                                                   October 10, 2019

UNITED STATES OF AMERICA,                                           Lyle W. Cayce
                                                                         Clerk
             Plaintiff - Appellee

v.

JAYDAN DEAN,

             Defendant – Appellant


                  Appeal from the United States District Court
                       for the Western District of Texas


Before OWEN, Chief Judge, and JONES and SMITH, Circuit Judges.
EDITH H. JONES, Circuit Judge:
      Jaydan Dean appeals his sentence, arguing that the district court abused
its discretion by imposing a search condition as a special condition of his
supervised release. For the following reasons, we affirm the judgment of the
district court.
      I.     BACKGROUND
      Dean pleaded guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1).      The U.S. Probation Office created a
Presentence Report (PSR) detailing Dean’s criminal history. Based on his past
convictions, the report calculated a criminal history category of VI and an
offense level of 12. Consistent with the recommendations of the PSR and
within the Guidelines’ range, the district court sentenced him to 37 months of
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                                 No. 18-50509

imprisonment and a three-year term of supervised release. In addition to the
mandatory and standard conditions of supervision, the district court, again
adopting the recommendation of the PSR, imposed the following special search
condition:
      The defendant shall submit his or her person, property, house,
      residence, vehicle, papers, computers (as defined in 18 U.S.C.
      § 1030(e)(1)), other electronic communications or data storage
      devices or media, or office, to a search conducted by a United States
      probation officer. Failure to submit to a search may be grounds for
      revocation of release. The defendant shall warn any other
      occupants that the premises may be subject to searches pursuant
      to this condition. The probation officer may conduct a search under
      this condition only when reasonable suspicion exists that the
      defendant has violated a condition of supervision and that the
      areas to be searched contain evidence of this violation. Any search
      shall be conducted at a reasonable time and in a reasonable
      manner.
The parties were given the PSR nearly two months before sentencing, but
neither party filed an objection to the report. Dean’s counsel confirmed that
he had reviewed the report with Dean and had no objection to the report at the
sentencing hearing, after which the district court adopted the report and
imposed the search condition.      Dean raised no objection when the court
imposed the condition.
      Dean now appeals the special search condition.
      II.    DISCUSSION
      Under 18 U.S.C. § 3583(d), a district “court may order, as a further
condition of supervised release, . . . any condition set forth as a discretionary
condition of probation in [18 U.S.C. § 3563(b)] and any other condition it
considers to be appropriate.” Dean challenges the search condition on the
grounds that it is not reasonably related to the 18 U.S.C. § 3553(a) factors,
lacks a factual basis, and is not narrowly tailored to ensure the least


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deprivation of liberty necessary. He argues his claim should be reviewed for
an abuse of discretion because he had no meaningful opportunity to object and,
alternately, that he can meet the plain error standard if it applies.        The
Government counters that Dean’s appeal should be reviewed for plain error,
but under either standard, his claim is unavailing.        We agree with the
Government that Dean’s appeal should be reviewed for plain error. Dean’s
challenge to the special condition of supervised release does not satisfy that
standard.
      When the defendant objects at sentencing to a special condition of
supervised release, this court reviews for an abuse of discretion. United States
v. Woods, 547 F.3d 515, 517 (5th Cir. 2008) (per curiam). Absent an objection,
“this court reviews for plain error only.” United States v. Bishop, 603 F.3d 279,
280 (5th Cir. 2010).
      Dean does not dispute that he failed to raise an objection to the special
condition during sentencing, but he claims he lacked a “meaningful
opportunity to object.” When a defendant has not been provided a meaningful
opportunity to object, this Court reviews sentencing for an abuse of discretion.
See United States v. Rivas-Estrada, 906 F.3d 346, 348-50 (5th Cir. 2018).
Rivas-Estrada reasoned that the purpose behind the “opportunity to object” is
“to give fair notice.” Id. at 349. Dean had ample notice. The record shows that
Dean received a copy of the PSR over a month before sentencing but filed no
objection. At the sentencing hearing, the district court orally confirmed that
Dean’s attorney reviewed the report with him and asked if there were
objections. None were raised. Then the court explicitly stated, “Additionally,
the defendant shall submit to the search condition of the district.” Still there
was no objection.      Because Dean had notice of the conditions and “an
opportunity to contest [the] conditions at the sentencing hearing,” his claim is


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reviewed for plain error. United States v. Rouland, 726 F.3d 728, 733-34 (5th
Cir. 2013).
      Under the plain error standard, Dean “must show 1) an error; 2) that is
clear or obvious 3) that affects substantial rights and 4) that seriously affects
the fairness, integrity, or public reputation of judicial proceedings.” United
States v. Huor, 852 F.3d 392, 398 (5th Cir. 2017) (internal quotation marks and
citation omitted).
      District courts have “wide discretion in imposing terms and conditions of
supervised release.” United States v. Paul, 274 F.3d 155, 164 (5th Cir. 2001).
The court may impose any condition it deems appropriate, provided the
condition is reasonably related to at least one of four factors: “(1) the nature
and characteristics of the offense and the history and characteristics of the
defendant, (2) the deterrence of criminal conduct, (3) the protection of the
public from further crimes of the defendant, and (4) the provision of needed
educational or vocational training, medical care, or other correctional
treatment to the defendant.” United States v. Weatherton, 567 F.3d 149, 153
(5th Cir. 2009) (citing 18 U.S.C. § 3583(d)(1), § 3553(a)(1), (2)(B)-(D)).
Additionally, “the condition must be narrowly tailored such that it does not
involve a greater deprivation of liberty than is reasonably necessary to fulfill
the purposes set forth in” § 3553(a). United States v. Scott, 821 F.3d 562, 570
(5th Cir. 2016) (internal quotation marks and citation omitted).
      Dean argues that the special search condition was not supported by the
record or narrowly tailored to him individually; that is, the error was plain and
affected his substantial rights.    The district court must “set forth factual
findings to justify special probation conditions” in terms of the 18 U.S.C.
§ 3553(a) factors. United States v. Salazar, 743 F.3d 445, 451 (5th Cir. 2014).
But “[i]n the absence of a factual finding, a court of appeals may nevertheless


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affirm a special condition ‘where the [district] court’s reasoning can be inferred
after an examination of the record.’” United States v. Caravayo, 809 F.3d 269,
275 (5th Cir. 2015) (quoting Salazar, 743 F.3d at 451).
      Here, the record sufficiently supports the special search condition. Not
only did the district court expressly adopt the findings of the PSR—which
included Dean’s extensive criminal history ranging from drug possession to
burglary to firearm possession—but also the condition is a mechanism for
enforcing other conditions prohibiting Dean’s possession of drugs or firearms
by facilitating the detection of evidence of other supervised release violations.
The reasonableness of this condition is further evident from the very
background of Dean’s appeal, which stems from a crime he committed while on
parole. Nor can Dean show that the district court’s failure to state reasons
substantially affected his rights because “he fail[ed] to show that an
explanation would have changed his sentence.”           United States v. Tang,
718 F.3d 476, 483 (5th Cir. 2013).
      We also reject Dean’s argument that the warrantless search condition is
not narrowly tailored. In a recent unpublished opinion, this court reviewed a
similar search provision for abuse of discretion and found that it, too, was
justified.   See United States v. Acosta-Navarro, No. 18-60564, 2019 WL
3058607 (5th Cir. Jul. 11, 2019). In that case, the district court imposed a
special condition requiring the defendant to “submit his property, including his
electronic communications devices to a search by a probation officer if the
officer has a reasonable suspicion that [the defendant] has violated a condition
of his supervision.” Id. at *1 (quotation marks omitted). We held that even
though nothing in the record indicated the defendant used electronic devices
to commit his offenses, “the condition is reasonably related to the sentencing
goals of deterring future criminal conduct and protecting the public from [the


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defendant’s] future crimes.”    Id. at *4; see also United States v. Balla,
769 F. App’x 127, 128-29 (5th Cir. 2019) (per curiam) (unpublished) (affirming
electronics-search condition for defendant convicted of being a felon in
possession of a firearm and ammunition because defendant’s criminal history
and sentencing goal of deterring future criminal conduct and protecting the
public justified the special condition). Given Dean’s criminal history, which is
considerably more extensive than the defendant’s in Acosta-Navarro, and the
district court’s expressed concern that someone so young could have such a
high criminal history category, we find the condition is both reasonably related
to the § 3553(a) factors and narrowly tailored. As in Acosta-Navarro, Dean will
be subject to the search condition only if the probation officer reasonably
suspects Dean has violated a condition of supervision, and any search may be
conducted only “at a reasonable time and in a reasonable manner.” In this
case, the condition further requires that the probation officer must reasonably
suspect that the areas to be searched contain evidence of the violation. And
any search may be conducted only “at a reasonable time and in a reasonable
manner.” In light of Dean’s criminal history, the “possibility of intermittent
searches” is not “too much of a burden on [his] already reduced liberty
interest.” Acosta-Navarro, 2019 WL 3058607, at *5 (citing United States v.
Hathorn, 920 F.3d 982, 986 (5th Cir. 2019)).
      Having concluded that there is no clear error adversely impacting Dean’s
substantial rights, we do not need to consider what the effect on the fairness,
integrity, or public reputation of judicial proceedings would be.
                               CONCLUSION
      For the foregoing reasons, we AFFIRM the judgment of the district court
imposing the special search condition of supervised release.




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