     Case: 09-51070 Document: 00511418554 Page: 1 Date Filed: 03/21/2011




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

                                                 FILED
                                                                           March 21, 2011

                                       No. 09-51070                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee
v.

RAFI WALI MCCALL,

                                                   Defendant - Appellant




                    Appeal from the United States District Court
                         for the Western District of Texas
                               USDC No. 7:07-cr-96


Before GARWOOD, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Rafi Wali McCall challenges his 240-month sentence for distribution of
crack cocaine and the specific conditions of his supervised release. Finding no
plain error, we AFFIRM.
                               STATEMENT OF FACTS
       Rafi Wali McCall was charged in a two-count indictment with distributing
50 grams or more of crack cocaine within 1,000 feet of an elementary school in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), and 860. A jury convicted

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                  No. 09-51070

McCall of both counts. The district court sentenced him to concurrent terms of
262 months of imprisonment and 20 years of supervised release. The district
court imposed the following conditions of supervised release: “the defendant
shall abstain from the use of alcohol and/or other intoxicants during the term of
supervision” and McCall “shall establish an account with the Texas Attorney
General’s office for the support of his minor children.”
      McCall appealed, challenging the evidentiary sufficiency of the convictions
and the district court’s evidentiary rulings. This court determined that the
evidence was insufficient to sustain the jury’s finding that McCall distributed
the controlled substances within 1,000 feet of a school and reversed his 21 U.S.C.
§ 860 conviction. We affirmed the conviction for violating Sections 841(a)(1) and
(b)(1)(A) and remanded for resentencing.
      At resentencing, the district court imposed concurrent terms of 240
months of imprisonment and 10 years of supervised release. The district court
imposed the same conditions of supervision. McCall timely appealed.
                                 DISCUSSION
      McCall raises the following challenges to his sentence and supervised
release conditions: (1) the district court erred in requiring him to establish an
account with the Texas Attorney General’s office for the support of his minor
children, (2) the statute that allows a district court to require a defendant to
support his dependents is unconstitutional, (3) the district court erred in
prohibiting him from consuming any alcohol while on supervised release, and (4)
his sentence is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466
(2000), because the prior conviction used to enhance his sentence was not
admitted by him nor proved beyond a reasonable doubt.
      Both parties assume plain error review applies because McCall did not
object contemporaneously to the conditions of supervised release or raise the
Apprendi issue in the district court. Even so, the parties cannot by concession

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impose an errant standard of review on us. See United States v. Vontsteen, 950
F.2d 1086, 1091 (5th Cir. 1992). We first decide whether McCall’s failure to
object to the alleged errors constitutes waiver or only forfeiture. This finding is
necessary to determine the appropriate standard of review.
       “Waiver and forfeiture are two different means by which a defendant may
react [or fail to react] to an error made by the government or the district court
in the proceedings in his case.” United States v. Dodson, 288 F.3d 153, 160 (5th
Cir. 2002). “Forfeiture is the failure to make the timely assertion of a right;
waiver is the intentional relinquishment of a known right.” United States v.
Arviso-Mata, 442 F.3d 382, 384 (5th Cir. 2006) (citation omitted). “Forfeited
errors are reviewed under the plain error standard; waived errors are entirely
unreviewable.” Id. (citation omitted).1
       McCall did not present the errors he now raises either time he was
sentenced. There is no evidence, though, that McCall knew his rights and
intentionally relinquished them.            McCall’s failure to object at sentencing
constitutes forfeiture rather than waiver. See id. Plain error review applies to
forfeited errors. Id.
       To establish reversible plain error, McCall must show that the district
court committed a “clear or obvious” error that affected both his substantial
rights and “the fairness, integrity, or public reputation of judicial proceedings.”
United States v. Thompson, 454 F.3d 459, 464 (5th Cir. 2006) (citation omitted).
I. Child Support
       The district court required McCall, as a condition of his supervised release,
to establish an account with the Texas Attorney General’s office for the support
of his minor children. McCall contends that his only child, as of the date of


       1
         There are opinions that may not be completely faithful to this distinction, at least in
the use of the terms. See, e.g., United States v. Castillo, 179 F.3d 321, 326 (5th Cir. 1999),
rev’d on other grounds, 530 U.S. 120 (2000). The distinction nonetheless is real and important.

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                                  No. 09-51070

sentencing, presumably will be an adult by the time he is released from prison
and begins his term of supervised release. McCall asserts that this condition is
improper because he has no legal obligation to provide financial support to an
adult child. He also insists that the district court cannot require him to pay
past-due child support after his child reaches adulthood because there is no
evidence McCall previously was ordered by the state to pay child support.
      Contrary to McCall’s contention, neither the district court’s oral
pronouncement at sentencing nor the written judgment of conviction require him
to provide financial support to a child who has reached adulthood or pay past-
due child support for any child in the absence of a state court order establishing
the existence of such an obligation. McCall’s duty to establish an account for his
minor children does not arise until he is released from imprisonment and while
on supervised release. Therefore, if McCall commences his supervised release
term after serving the full 240 months of imprisonment, that specific condition
would be inapplicable to his existing child because that child would no longer be
a minor.
      McCall has failed to demonstrate that the supervised release condition
requiring he establish an account with the Texas Attorney General’s office for
the support of his minor children constitutes reversible plain error.
      McCall also challenges the constitutionality of 18 U.S.C. §§ 3563(b)(1),
3583(d), and U.S. Sentencing Guidelines Manual § 5D1.3, which authorize
district courts to require a defendant to support his dependents as a
discretionary condition of supervised release. He contends that family law is a
state concern and that Section 3563(b)(1) circumvents the state’s authority to
order payment of child support. McCall reasons that Congress intended only to
have district courts enforce already existing state-court-issued child support
orders. We disagree.



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      Congress has expressly authorized a district court to require a defendant,
as a condition of supervised release, to “support his dependents and meet other
family responsibilities . . . .” 18 U.S.C. § 3563(b)(1). A separate provision,
Section 3563(b)(20), pertains to existing child support orders: a court may
require as a condition of supervised release that the defendant “comply with the
terms of any court order . . . pursuant to the law of a State . . . requiring
payments by the defendant for the support and maintenance of a child or of a
child and the parent with whom the child is living . . . .” Id. § 3563(b)(20).
      Further, the challenged sentencing Guideline provides that
      the defendant shall support [his] dependents and meet other family
      responsibilities (including, but not limited to, complying with the
      terms of any court order or administrative process pursuant to the
      law of a state, the District of Columbia, or any other possession or
      territory of the United States requiring payments by the defendant
      for the support and maintenance of any child or of a child and the
      parent with whom the child is living)[.]

U.S. Sentencing Guidelines Manual § 5D1.3(c)(4) (emphasis added).
      Despite    McCall’s   federalism   argument,     the   statutory   language
demonstrates that Congress intended for district courts to have authority beyond
merely enforcing existing state court child support orders.        Moreover, the
statutory language and sentencing guidelines do not conflict with or circumvent
state authority but instead defer to it. We find no error, plain or otherwise.
II. Alcohol Prohibition
      The district court also imposed the following condition of supervised
release: “the defendant shall abstain from the use of alcohol and/or other
intoxicants during the term of supervision.” McCall contends that the district
court erred when it prohibited him from consuming alcohol as a condition of his
supervised release.    He does not challenge the prohibition against “other
intoxicants.”   Instead, he urges that although there was evidence he used



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marijuana, there was no evidence he abused alcohol or that alcohol played a role
in the offense.   That restriction, according to McCall, is unreasonable and
constitutes plain error.
      The district court has wide discretion in imposing conditions of supervised
release, limited by 18 U.S.C. § 3583(d). United States v. Paul, 274 F.3d 155, 164
(5th Cir. 2001). Special conditions of supervised release must be “reasonably
related” to four factors:
      (1) the nature and circumstances of the offense and the history and
      characteristics of the defendant, (2) the need to afford adequate
      deterrence to criminal conduct, (3) the need to protect the public
      from further crimes of the defendant, and (4) the need to provide the
      defendant with needed training, medical care, or other correctional
      treatment in the most effective manner.
Id. at 165 (citing 18 U.S.C. § 3553(a)(1)-(2)) (brackets and quotation marks
omitted).   This court has interpreted Section 3583(d) “only to require a
reasonable relationship with any of the four factors[,] not necessarily all of
them[.]” United States v. Weatherton, 567 F.3d 149, 153 n.1 (5th Cir. 2009)
(citation omitted). The conditions may involve no greater deprivation of liberty
than is reasonably necessary to achieve the latter three statutory goals. See 18
U.S.C. § 3583(d)(2).
      The government relies on a case where this court considered the
defendant’s history of drug abuse in affirming the conditions of supervised
release. United States v. Ferguson, 369 F.3d 847, 853 (5th Cir. 2004). In that
case, although the defendant’s conviction involved possession of a machine gun,
conditions of supervised release were imposed that prohibited the defendant
from taking cough syrups with codeine, NyQuil, or sleeping potions with drugs
and alcohol without a prescription. Id. The district court noted the defendant’s
history of drug abuse and found that he “[was] dependent on external
stimulation and ha[d] demonstrated that he is likely to hurt people while he’s



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being externally stimulated.” Id. (quotation marks omitted). On appeal, this
court held that in light of the defendant’s history of drug abuse, the district court
did not abuse its discretion by requiring a prescription for certain drugs, because
those drugs contain chemicals that may be addictive. Id.
      In a similar case, this court upheld special conditions of supervised release
that required the defendant participate in substance abuse treatment, undergo
drug testing, and abstain from alcohol and other intoxicants. United States v.
Gayford, 380 F. App’x 442, 444 (5th Cir. 2010) (unpublished). We conclude that
Gayford properly analyzes the relevant issues. The defendant in that case pled
guilty to being a felon in possession of firearms. Id. at 443. The presentence
report revealed that the defendant faced pending charges for drug crimes. Id.
at 444. This court held that “[b]ecause the [district] court had reason to believe
that [the defendant] abuses controlled substances, it could require participation
in a drug-abuse treatment program, . . . and restrict [the defendant]’s access to
other substances, including alcohol and legal drugs presenting a danger of
addiction.” Id. (citations omitted).
      Here, the presentence report indicates that McCall consumed alcohol daily
in 1995 when he was 16-years old. His last reported use was one year later.
There is no evidence in the record that alcohol was involved in any of his prior
or current offenses. McCall, however, does have a history of abusing marijuana.
Many of his prior offenses involve marijuana possession.            At his original
sentencing, counsel requested that McCall receive treatment for his abuse of
marijuana while incarcerated. Based on McCall’s own admissions, the district
court had reason to believe McCall currently abused a controlled substance. We
cannot say the district court committed clear or obvious error by prohibiting
McCall from consuming alcohol, a substance that also presents a danger of
addiction. See id.
III. Apprendi v. New Jersey

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                                 No. 09-51070

      McCall asserts that his enhanced sentence, as a result of his prior
convictions, is unconstitutional without a jury finding he committed those prior
convictions beyond a reasonable doubt. See Apprendi, 530 U.S. at 483-84.
McCall concedes the argument is foreclosed by Supreme Court precedent, but
raises it to preserve the issue for Supreme Court review. See Almendarez-Torres
v. United States, 523 U.S. 224, 226-27 (1998).
      AFFIRMED.




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