     Case: 18-10079       Document: 00514739965         Page: 1     Date Filed: 11/28/2018




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

                                     No. 18-10079                            FILED
                                   Summary Calendar                  November 28, 2018
                                                                        Lyle W. Cayce
                                                                             Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

ANTHONY ALEXANDER FERRARI,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:17-CR-122-1


Before BARKSDALE, ELROD, and HO, Circuit Judges.
PER CURIAM: *
       Anthony Alexander Ferrari appeals his sentence for his guilty-plea
conviction for possession of a controlled substance with intent to distribute, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(C). Ferrari challenges the standard
condition of his supervised release mandating he “permit a probation officer to
visit [Ferrari] at any time at home or elsewhere and permit confiscation of any
contraband observed in plain view by the probation officer”. Ferrari asserts:


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
    Case: 18-10079      Document: 00514739965        Page: 2    Date Filed: 11/28/2018


                                    No. 18-10079

the condition allowing a probation officer to visit him at any time and place is
substantively unreasonable, constitutionally overbroad, and a greater
deprivation of liberty than reasonably necessary; and the court failed to
explain its reasons for imposing the condition.
      As Ferrari concedes, he did not raise these issues in district court; therefore,
review is only for plain error. E.g., United States v. Broussard, 669 F.3d 537, 546
(5th Cir. 2012). Under that standard, Ferrari must show a forfeited plain (clear or
obvious) error that affected his substantial rights. Puckett v. United States, 556
U.S. 129, 135 (2009). If he does so, we have the discretion to correct the reversible
plain error, but should do so only if it “seriously affect[s] the, fairness, integrity or
public reputation of judicial proceedings”. Id.
      Our court has not addressed the constitutionality or substantive
reasonableness of the challenged standard condition or whether a district court
must explain its reasons for imposing a standard condition of supervised
release. As the Government contends, and Ferrari concedes, other circuits
have reached varying results. Therefore, even assuming error, it is not clear
or obvious. See United States v. Salinas, 480 F.3d 750, 759 (5th Cir. 2007)
(“Because this circuit’s law remains unsettled and the other federal circuits
have reached divergent conclusions on this issue . . . [defendant] cannot satisfy
the second prong of the plain error test—that the error be clear under existing
law”.) (citation omitted).
      AFFIRMED.




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