     Case: 18-11515      Document: 00515337616         Page: 1    Date Filed: 03/09/2020




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

                                                                              FILED
                                                                           March 9, 2020
                                      No. 18-11515
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

               Plaintiff–Appellee,

v.

FERMIN HERRERA-ANGELES,

               Defendant–Appellant.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 5:18-CR-56-1


Before OWEN, Chief Judge, and SOUTHWICK and OLDHAM, Circuit Judges.
PER CURIAM:*
       Fermin Herrera-Angeles appeals the imposition of a special condition of
supervised release prohibiting him from using alcohol and all other
intoxicants. He also contends that the district court cited the wrong statute in
describing the conviction in the written judgment. We vacate the judgment in
part and remand to the district court for the limited purpose of correcting the
statute of conviction. We otherwise affirm.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-11515
                                          I
      Herrera-Angeles drove eight miles over the speed limit and, following a
traffic stop, was discovered to be transporting nine undocumented aliens in the
vehicle, a minivan, in exchange for financial compensation. He pleaded guilty,
pursuant to a plea agreement, to one count of transportation of an illegal alien
within the United States for private financial gain, an offense under 8 U.S.C.
§ 1324. The plea agreement contained a waiver of Herrera-Angeles’s right to
challenge the forfeiture of property but did not contain a waiver of his general
right to appeal his conviction or sentence.
      The PSR assessed a total offense level of 15, which included an
enhancement under U.S.S.G. § 2L1.1(b)(6) because Herrera-Angeles’s offense
intentionally or recklessly created a substantial risk of death or serious bodily
injury to another person. With no prior convictions, Herrera-Angeles had a
criminal history category of I. His guidelines range was 18 to 24 months of
imprisonment.
      The parties had no objections to the PSR, and the district court adopted
it without change. The district court sentenced Herrera-Angeles to 24 months
of imprisonment and three years of supervised release. The sentence included
two special conditions of supervised release, one prohibiting illegal reentry and
a second (Special Condition 2) that provided, “The defendant shall abstain from
the use of alcohol and all other intoxicants during the term of supervision.”
Herrera-Angeles did not object to the sentence. He filed a timely notice of
appeal.
      The Federal Public Defender appointed on appeal moved to withdraw
and filed a brief pursuant to Anders v. California. 1 Following an independent
review of the record, we denied the motion and ordered counsel to file a brief


      1   386 U.S. 738 (1967).
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                                      No. 18-11515
on the merits addressing whether Special Condition 2 was proper, whether the
judgment misidentified the statute of conviction, and any other nonfrivolous
issues that counsel deemed appropriate.
       On December 17, 2019, we issued an opinion vacating Special Condition
2 as plainly erroneous and remanding the case to the district court to modify
Special Condition 2 and correct the statute of conviction in the judgment. 2 We
subsequently withdrew that opinion. 3 Herrera-Angeles was released from
prison on February 6, 2020. He was removed from the United States on
February 8, 2020.
                                             II
       Plain error review applies to Herrera-Angeles’s challenge to Special
Condition 2 because he did not object to the special condition in the district
court. 4 To establish plain error, Herrera-Angeles must show there is an error
that “(1) was not intentionally relinquished or abandoned, (2) was plain, clear,
or obvious, and (3) the error affected [his] substantial rights.” 5 If those three
conditions are met, we should exercise our discretion to correct the error if (4)
“the error also ‘seriously affects the fairness, integrity or public reputation of
judicial proceedings.’” 6
       “District courts have broad discretion to impose special conditions of
supervised release.” 7 A district court may impose any condition it considers
appropriate so long as it is reasonably related to the sentencing factors in 18



       2 United States v. Herrera-Angeles, No. 18-11515, 2019 WL 6883707 (5th Cir. Dec. 17,
2019), withdrawn, 788 F. App’x 951 (5th Cir. 2019).
       3 United States v. Herrera-Angeles, 788 F. App’x 951 (5th Cir. 2019).
       4 United States v. Scott, 821 F.3d 562, 570 (5th Cir. 2016).
       5 United States v. Perez-Mateo, 926 F.3d 216, 218 (5th Cir. 2019) (quoting Molina-

Martinez v. United States, 136 S. Ct. 1338, 1343 (2016)).
       6 Id. (quoting Molina-Martinez, 136 S. Ct. at 1343).
       7 United States v. Alvarez, 880 F.3d 236, 239 (5th Cir. 2018) (citing United States v.

Fernandez, 776 F.3d 344, 346 (5th Cir. 2015)).
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U.S.C. § 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D); does not involve a greater
deprivation of liberty than is reasonably necessary to carry out the purposes of
§ 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D); and is consistent with relevant policy
statements issued by the Sentencing Commission. 8 The relevant Sentencing
Commission policy statement recommends imposition of a special condition
prohibiting the defendant from using or possessing alcohol “[i]f the court has
reason to believe that the defendant is an abuser of narcotics, other controlled
substances or alcohol.” 9 District courts must provide factual findings to justify
the imposition of special conditions of supervised release. 10 However, when
factual findings are absent, this court may still affirm a special condition if the
district court’s reasoning can be inferred from the record. 11
       In this case, the district court did not provide factual findings justifying
Special Condition 2.        Additionally, the PSR did not mention the special
condition, much less recommend that it be imposed. Herrera-Angeles stated
that he had never used alcohol or drugs. Although he admitted that he was in
the United States illegally, he had no prior criminal history, and his offense
did not involve alcohol or other intoxicants.
       The only mention of alcohol use in the PSR was Herrera-Angeles’s
disclosure that his father, who is deceased, was a physically-abusive alcoholic.
Section 3553(a) is applied on an individualized basis, 12 and his father’s abuse
of alcohol would not justify prohibiting Herrera-Angeles himself from using
alcohol and all other intoxicants. The record does not support a finding that
Special Condition 2 is reasonably related to the relevant § 3553(a) factors.



       8 18 U.S.C. § 3583(d); Alvarez, 880 F.3d at 239-40.
       9 U.S.S.G. § 5D1.3(d)(4); accord United States v. Jordan, 756 F. App’x 472, 472-73 (5th
Cir. 2019).
       10 Alvarez, 880 F.3d at 240.
       11 Id.
       12 See Gall v. United States, 552 U.S. 38, 50 (2007).

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                                          No. 18-11515
Because the district court’s imposition of Special Condition 2 was unexplained
and not supported by the record, Herrera-Angeles has demonstrated error. 13
Furthermore, the error is clear or obvious, as it is not open to reasonable
debate. 14
         Herrera-Angeles has also shown the error violated his substantial rights,
satisfying prong three. But for the error, Herrera-Angeles “would not [be]
subjected to the unwarranted special condition because no record evidence
reveals any justification for the condition.” 15 Additionally, the condition overly
burdens Herrera-Angeles’s personal freedom and creates an unwarranted
perception that he has a problem with alcohol and intoxicants that requires a
court-imposed restriction. 16
         However, we decline to exercise our discretion under prong four. The
fourth prong is evaluated on “a case-specific and fact-intensive basis,” rather
than a per se approach. 17 In determining whether to exercise our discretion
under the fourth prong, this court considers “the degree of the error and the
particular facts of the case.” 18 Here, the facts weigh against exercising our
discretion.
         Herrera-Angeles has been deported. Although this court has held that
deportation does not render a challenge to a supervised release condition
moot, 19 the effect of deportation on the plain error analysis appears to remain



         13   See Alvarez, 880 F.3d at 241; United States v. Prieto, 801 F.3d 547, 553 (5th Cir.
2015).
          See Alvarez, 880 F.3d at 241; see also United States v. Jordan, 756 F. App’x 472, 473
         14

(5th Cir. 2019).
       15 Prieto, 801 F.3d at 553.
       16 See Alvarez, 880 F.3d at 241; Jordan, 756 F. App’x at 473; see also United States v.

Gordon, 838 F.3d 597, 605 (5th Cir. 2016).
       17 Alvarez, 880 F.3d at 242 (quoting Prieto, 801 F.3d at 554).
       18 Prieto, 801 F.3d at 554 (quoting United States v. Avalos-Martinez, 700 F.3d 148, 154

(5th Cir. 2012)).
       19 United States v. Heredia-Holguin, 823 F.3d 337, 343 (5th Cir. 2016) (en banc).

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                                       No. 18-11515
an open question. 20        In unpublished decisions, this court has repeatedly
declined to exercise its discretion under the fourth prong for a deportable
defendant because he will “face[] no negative consequences . . . unless he
illegally returns to the United States.” 21 These arguments apply with even
more force to a defendant who has already been deported. Because Herrera-
Angeles is no longer in the United States, “supervised release will have no
practical effect on him” unless he re-enters. 22 No probation officer will enforce
the special condition against Herrera-Angeles while he is in Mexico. 23
       Special Condition 2 could affect Herrera-Angeles if he illegally reenters
the United States, 24 which itself would violate a condition of his supervised
release that he does not challenge. Violation of the illegal reentry condition
alone would result in revocation of Herrera-Angeles’s supervised release.25
Although      it is possible that Herrera-Angeles could                    face additional
consequences for violating Special Condition 2, it is “hard to say” how violation
of that condition would affect Herrera-Angeles. 26 Any effect the condition
might have on Herrera-Angeles is so minimal that a decision not to exercise
our discretion to correct the error would not affect the fairness, integrity, or



       20  See United States v. Heredia-Holguin, 679 F. App’x 306, 312 n.5 (5th Cir. 2017)
(declining to address whether a supervised release condition requiring abstention from the
use of alcohol affected the substantial rights of a defendant who had been deported because
he had otherwise failed to carry his burden with respect to that prong of plain error review).
        21 United States v. Figueroa-Munoz, 592 F. App’x 336, 337 (5th Cir. 2015); see United

States v. Arciniega-Rodriguez, 581 F. App’x 419, 420-21 (5th Cir. 2014); United States v.
Macias-Roman, 539 F. App’x 500, 501-02 (5th Cir. 2013) (collecting cases).
        22 United States v. Chavez-Trejo, 533 F. App’x 382, 386 (5th Cir. 2013) (per curiam)

(quoting United States v. Navarrete-Rembao, 508 F. App’x 345, 345 (5th Cir. 2013) (per
curiam)).
        23 See Chavez-Trejo, 533 F. App’x at 386.
        24 Because Herrera-Angeles was convicted of an aggravated felony, he is permanently

barred from admission to the United States. See 8 U.S.C. § 1182(a)(9)(A).
        25 See U.S.S.G. §§ 7B1.3(a)(1), 2L1.2.
        26 United States v. Phipps, 319 F.3d 177, 193 (5th Cir. 2003); see also United States v.

Mason, 626 F. App’x 473, 475 (5th Cir. 2015).
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                                      No. 18-11515
public reputation of the judicial proceedings.
       Moreover, Herrera-Angeles may move in the district court for
modification of Special Condition 2 at any time pursuant to § 3583(e)(2). This
court has remarked that “[a]lthough the modifiable nature of a special
condition is not dispositive, a defendant faces an uphill battle when he seeks
to convince [this court] that a modifiable condition ‘seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.’” 27              This is
because a modifiable condition creates a less significant deprivation of liberty
than a condition that cannot be modified. 28
       The modifiable nature of the condition, which “weighs heavily” against
this court exercising its discretion, 29 and the fact that Herrera-Angeles has
been deported strongly indicate that we should not exercise our discretion to
correct the error. We therefore decline to vacate Special Condition 2.
                                            III
       Herrera-Angeles also contends that the judgment should be corrected
pursuant to Federal Rule of Criminal Procedure 36 with respect to a clerical
error concerning the statute of conviction. The judgment erroneously indicates
that the statute of conviction was 18 U.S.C. § 1324(a)(1)(A)(ii) and (a)(1)(B)(i),
when the statute under which he was convicted was 8 U.S.C. § 1324(a)(1)(A)(ii)
and (a)(1)(B)(i). 30   This court has authority to review clerical errors in a
judgment for the first time on appeal and to remand for correction of such
errors. 31 The Government agrees that the judgment misstates the statute of




       27  United States v. Prieto, 801 F.3d 547, 554 (5th Cir. 2015) (third alteration in
original) (quoting Puckett v. United States, 556 U.S. 129, 135 (2009)).
        28 Sealed Appellee v. Sealed Appellant, 937 F.3d 392, 404 (5th Cir. 2019), as revised

(Sept. 11, 2019); United States v. Mendoza-Velasquez, 847 F.3d 209, 213 (5th Cir. 2017).
        29 Prieto, 801 F.3d at 554.
        30 See 8 U.S.C. § 1324.
        31 United States v. Perez-Melis, 882 F.3d 161, 168 (5th Cir. 2018).

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                                No. 18-11515
conviction and should be reformed. Therefore, we remand to correct the error.
                               *      *       *
      Accordingly, we REMAND to the district court for the limited purpose of
reforming the judgment to reflect the proper statute of conviction and AFFIRM
the judgment in all other respects.




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