     Case: 15-10851      Document: 00513858171         Page: 1    Date Filed: 02/01/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                    No. 15-10851                                FILED
                                  Summary Calendar                       February 1, 2017
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JEVAUGHN D. ERWIN,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:15-CR-272-1


Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: *
       Jevaughn D. Erwin was convicted of conspiring to possess with the intent
to distribute cocaine base, completed his sentence, and was released to serve a
five-year term of supervised release on December 31, 2014.                    In 2015, his
supervised release was mandatorily revoked. See 18 U.S.C. § 3583(e)(3) &
(g)(1), (g)(3). After completion of an eight-month revocation sentence, he was
released to serve 51 months of supervised release. He now appeals, contending


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-10851    Document: 00513858171     Page: 2   Date Filed: 02/01/2017


                                 No. 15-10851

that two of the special conditions of supervised release imposed by the district
court are improper.
      We agree, as the parties contend, that plain-error review applies in this
case. “To prevail on plain error review, a defendant must show that an error
occurred, that the error was clear or obvious, and that the error affected his
substantial rights.” United States v. Walker, 742 F.3d 614, 616 (5th Cir. 2014).
If those factors are established, we may exercise our discretion to correct such
a forfeited error only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Id.
      Erwin first challenges the special condition subjecting him to “the search
of [his] premises, vehicle or person, day or night, with or without a warrant, at
the request of the probation officer to determine the presence of controlled
substances, firearms or any other contraband” and the seizure by the probation
officer of any such items found.      He contends that the condition is not
reasonably related to the relevant 18 U.S.C. § 3553(a) factors, as required by
18 U.S.C. § 3583(d)(1); involves a greater deprivation of liberty than is
necessary to achieve the goals of the § 3553(a)(2)(B)-(D) factors, violates
§ 3583(d)(2); deprives him of his Fourth Amendment right to be free from
unreasonable searches and seizures; and is not supported by stated reasons.
      Although the district court did not set forth findings to justify imposing
this special condition, the court’s reasoning can be inferred from an
examination of the record. See United States v. Caravayo, 809 F.3d 269, 275
(5th Cir. 2015). As the record shows, Erwin was convicted of a drug-trafficking
offense and had multiple drug-related supervised release violations. Thus, this
special condition is reasonably related to the § 3553(a)(1) factor concerning the
nature and characteristics of the offense and the defendant’s history and
characteristics. See United States v. Fernandez, 776 F.3d 344, 346 (5th Cir.



                                          2
     Case: 15-10851      Document: 00513858171        Page: 3     Date Filed: 02/01/2017


                                     No. 15-10851

2015) (indicating that a special condition must be related to at least one of the
relevant § 3553(a) factors). Given that Erwin repeatedly violated six conditions
during his first six months of supervised release, it is not clear or obvious that
the warrantless and apparently suspicionless search condition is a greater
deprivation of liberty than is necessary to achieve the goals of deterrence,
public protection, and the provision of needed treatment. See Fernandez, 776
F.3d at 346; § 3553(a)(2)(B)-(D); see also Walker, 742 F.3d at 616.
       Furthermore, “[t]he Supreme Court has rejected Fourth Amendment
attacks upon search conditions, whether or not they relate to the underlying
circumstances of the offense or the offender, on the basis of an offender’s
reduced expectation of privacy.” United States v. Winding, 817 F.3d 910, 916
(5th Cir. 2016); see Samson v. California, 547 U.S. 843, 846 (2006). In light of
the possibility that the Court eliminated the requirement of reasonable
suspicion to search an individual on supervised release, see United States v.
Taylor, 482 F.3d 315, 319 & n.2 (5th Cir. 2007), and given the fact that a
warrantless and suspicionless search condition has never been found
unconstitutional in this circuit, the district court’s imposition of such a
supervised release condition cannot be considered plainly erroneous.                   See
United States v. Anderson, 620 F. App’x 365, 366 (5th Cir. 2015) (refusing to
find suspicionless search supervised release condition plainly erroneous based
on unsettled nature of relevant circuit law). 1
      Erwin next challenges the special condition requiring him to “participate
in a victim awareness program as directed by the probation officer.” Erwin
does not assert that he has been, or is about to be, directed by his probation
officer to participate in a victim awareness program, and he may never be so


      1  Although unpublished opinions issued on or after January 1, 1996, are not
precedential, they may nevertheless be persuasive. See Ballard v. Burton, 444 F.3d 391, 401
& n.7 (5th Cir. 2006); 5TH CIR. R. 47.5.4.


                                            3
    Case: 15-10851      Document: 00513858171   Page: 4   Date Filed: 02/01/2017


                                 No. 15-10851

directed. Erwin’s challenge to this condition is thus not ripe for review. See
United States v. Ellis, 720 F.3d 220, 224, 227 (5th Cir. 2013) (holding that
challenge to special conditions providing for sex offender and mental health
treatment “as directed by the probation officer” that “may include” medication
and psycho-physiological testing was not ripe for review because defendant
“may never be subjected to such medication or testing”); United States v. Tang,
718 F.3d 476, 481, 485 (5th Cir. 2013) (holding non-mandatory condition not
ripe for review and stating that defendant could petition district court for
modification of condition if he were required to submit to such condition).
      We therefore lack subject matter jurisdiction over Erwin’s challenge to
the special condition requiring his participation in a victim awareness program
as directed by the probation officer. See United States v. Magana, 837 F.3d
457, 459 (5th Cir. 2016) (explaining that ripeness is component of subject
matter jurisdiction).
      In light of the foregoing, the judgment of the district court is AFFIRMED
IN PART, and the appeal is DISMISSED IN PART for lack of jurisdiction.




                                       4
