                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                           June 6, 2016
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 15-8115
                                                 (D.C. No. 2:14-CR-00101-SWS-5)
ROYCE E. MORITZ,                                             (D. Wyo.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HARTZ, MURPHY, and PHILLIPS, Circuit Judges.
                  _________________________________

      Defendant, Royce E. Moritz pleaded guilty to conspiring to possess with intent

to distribute methamphetamine and to conspiring to launder money. The district court

sentenced Moritz to 120 months’ imprisonment, followed by five years of supervised

release. This appeal concerns Moritz’s challenge to a special condition of his

supervised release prohibiting him from using or possessing either alcohol or




      *
        After examining the briefs and appellate record, this panel has unanimously
determined to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). Defendant’s Unopposed
Motion to Submit Case for Decision on the Briefs is granted and the case is submitted
without oral argument. This order and judgment is not binding precedent, except
under the doctrines of law of the case, res judicata, and collateral estoppel. It may be
cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and
10th Cir. R. 32.1.
intoxicants. In view of Moritz’s addiction history, and recognizing that district courts

have broad discretion in this area, we affirm.

                                  BACKGROUND

      In his “Unopposed Motion for Modification of Supervised Release

Conditions” (Motion), Moritz asked the district court to strike this special condition

of supervised release:

      The defendant shall refrain from any use or possession of alcohol and/or
      other intoxicants including over the counter medications used contrary
      to the recommended dosage, or the intentional inhalation of any
      substance, prescribed or otherwise, without the permission of the U.S.
      Probation officer. Additionally, the defendant shall not enter
      establishments whose primary income is derived from the sale of
      alcohol.

R. vol. 2 at 19. The district court denied Moritz’s motion because the “condition is

needed given [Moritz’s] prior alcohol abuse problems.” R. vol. 1 at 58.

      As support for finding that Moritz had abused alcohol, the district court relied

on information contained in the Presentence Report (PSR), including Moritz himself

acknowledging that he is an alcoholic. In addition, the PSR described Moritz’s two

DUI convictions. The PSR also detailed Moritz’s history of methamphetamine and

marijuana abuse. Included were Moritz’s convictions for possessing marijuana and a

controlled substance. Based on Moritz’s history of drug abuse, the district court

recommended placement in the Bureau of Prisons Residential Drug Abuse Program

(RDAP).

      On appeal, Moritz first argues the district court abused its discretion by

imposing this special condition of supervised release. He argues that the special

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condition is unnecessary given the other conditions of his supervised release. Second,

Moritz argues the special condition is unreasonably broad and vague because it could

potentially prohibit his possession and use of legal household products.

                             STANDARD OF REVIEW

        We review the district court’s denial of defendant’s Motion for an abuse of

discretion. United States v. Lonjose, 663 F.3d 1292, 1302 (10th Cir. 2011); United

States v. Pugliese, 960 F.2d 913, 915 (10th Cir. 1992). A district court abuses its

discretion when it renders a judgment that is “arbitrary, capricious, whimsical, or

manifestly unreasonable.” United States v. Landers, 564 F.3d 1217, 1224 (10th Cir.

2009) (quoting United States v. Munoz-Nava, 524 F.3d 1137, 1146 (10th Cir. 2008)).

We give substantial deference to the district court’s sentence. Landers, 897 F.3d at

1224.

                                   DISCUSSION

        For two reasons, the district court did not abuse its discretion by denying

Moritz’s motion to modify the special conditions. First, the district court’s denial

wasn’t arbitrary, capricious, whimsical, or manifestly unreasonable. Second, the

prohibition on intoxicants isn’t unreasonably vague or broad. See United States v.

Munoz, 812 F.3d 809, 815 (10th Cir. 2016) (holding that the terms intoxicants and

alcohol were not unreasonably vague). Exercising jurisdiction under 28 U.S.C. §

1291, we affirm the district court’s denial of Moritz’s Motion.




                                          3
      1.      The district court acted within its discretion by refusing to modify the
              special condition.

      District courts have broad discretion to impose special conditions of

supervised release. United States v. Bear, 769 F.3d 1221, 1226 (10th Cir. 2014). “The

limits of that discretion are prescribed by 18 U.S.C. § 3583(d).” Id. That section

requires that conditions

      (1) be reasonably related to the nature and circumstances of the offense,
      the defendant’s history and character, the deterrence of the criminal
      conduct, the protection of the public from future crimes of the
      defendant, or the defendant’s educational, vocational, medical, or other
      correctional needs; (2) involve no greater deprivation of liberty than is
      reasonably necessary to achieve the purpose of deterring criminal
      activity, protecting the public, and promoting the defendant’s
      rehabilitation; and (3) be consistent with any pertinent policy statements
      issued by the Sentencing Commission.

Id.

      Here, applying § 3583(d), the district court justified the special condition by

citing to Moritz’s character and his history of alcohol abuse. Continuing to follow the

factors the statute requires heeded, the court concluded that the special condition was

needed to protect the public and promote Moritz’s rehabilitation. Finally, the court

didn’t conclude (and Moritz doesn’t argue otherwise) that the special provision is

inconsistent with any pertinent policy statements issued by the Sentencing

Commission.

      Since the district court based its decision on its individualized assessment of

Moritz, its decision wasn’t arbitrary, capricious, whimsical, or manifestly




                                          4
unreasonable. Therefore, the district court acted within its discretion in denying

Moritz’s motion to modify this special condition.

      2.     The special condition is not vague or overly broad.

      Moritz argues that this special condition is vague and overly broad because it

could prohibit his use and possession of ordinary household products containing

alcohol, including dishwasher detergent, hand sanitizer, toothpaste, and aftershave.

Along this same line, Moritz argues that nothing explains why he needs to obtain a

probation officer’s approval before purchasing or using these household items.

      In United States v. Munoz, 812 F.3d at 815, we addressed a challenge to a

similar special condition, and we affirmed the district court’s special condition.

There, the special condition required that the “defendant must refrain from the use

and possession of alcohol and other forms of intoxicants.” Id. at 814. The defendant

argued that the words alcohol and intoxicants “are vague because they could include

over-the-counter medications, vanilla extract, rubbing alcohol, coffee, cigarettes,

sugar, and chocolate.” Id. at 815. We rejected this argument, observing that “no

federal appeals court has invalidated a supervised release condition prohibiting the

consumption of alcohol or intoxicants.”1 Id. We concluded that “[w]ith the gloss of

common sense, the condition was not too vague.” Id.


      1
          Other courts frequently impose this condition and courts have routinely
upheld nearly identical special conditions. See e.g. United States v. Mason, 626 Fed.
Appx. 473, 474-75 (5th Cir. 2015) (unpublished) (affirming district courts imposition
of restriction prohibiting “use of alcohol and all other intoxicants”.); United States v.
Schave, 186 F.3d 839, 842-43 (7th Cir. 1999) (“While a restriction simply on
excessive use of alcohol may have been sufficient to achieve these aims, we cannot
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      As in Munoz, we must use common sense to guide our interpretation of

supervised release conditions. 812 F.3d at 815; see United States v. Mike, 632 F.3d

686, 701 (10th Cir. 2011) (opting for a “commonsense” interpretation of release

conditions over an interpretation that is “overly technical”). When common sense is

applied to the special condition, the prohibition on possession or use of alcohol or

other intoxicants isn’t unreasonably vague or overly broad. Thus, we reject Moritz’s

challenges to this special condition.

                                   CONCLUSION

      The district court acted within its discretion when it denied Moritz’s motion

for modification of supervised release conditions. We affirm the district court’s Order

denying modification of the conditions of supervised release.




                                           Entered for the Court


                                           Gregory A. Phillips
                                           Circuit Judge




conclude that the district court, on the facts before it, abused its discretion in
concluding that an additional restriction banning all alcohol use was reasonably
necessary.”).
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