     Case: 18-11084   Document: 00515267495        Page: 1   Date Filed: 01/10/2020




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

                                                                          FILED
                                    No. 18-11084                   January 10, 2020
                                                                     Lyle W. Cayce
UNITED STATES OF AMERICA,                                                 Clerk


            Plaintiff - Appellee

v.

KEVIN RAY PRENTICE,

           Defendant – Appellant
**************************************
Consolidated With 18-11273

UNITED STATES OF AMERICA,

            Plaintiff - Appellant

v.

KEVIN RAY PRENTICE,

            Defendant - Appellee



                Appeals from the United States District Court
                     for the Northern District of Texas
                          USDC No. 4:16-CR-149-1
     Case: 18-11084      Document: 00515267495         Page: 2    Date Filed: 01/10/2020



                                     No. 18-11084
                                   c/w No. 18-11273

Before HIGGINBOTHAM, JONES, and DUNCAN, Circuit Judges.
PER CURIAM:*
       Kevin Ray Prentice pled guilty to possessing a firearm as a felon, in
violation of 18 U.S.C. § 922(g)(1).          The district court imposed standard
conditions of supervised release, one of which requires Prentice to allow his
probation officer to “visit him at any time at home or elsewhere” and to
confiscate “any contraband observed in plain view” (the “visitation condition”).
On appeal, Prentice asserts the visitation condition violates the Fourth
Amendment, is not reasonably related to statutorily enumerated sentencing
factors, and involves greater deprivation of liberty than is reasonably
necessary to serve the purposes of supervised release. He also claims the
district court erred in failing to give reasons for imposing the visitation
condition.
       Reviewing for plain error, another panel of this court has recently
affirmed imposition of the visitation condition and rejected all the challenges
Prentice brings now. Bound by United States v. Cabello, 916 F.3d 543 (5th Cir.
2019) (per curiam), we AFFIRM.
       Prentice pled guilty to possessing a firearm as a felon, in violation of
18 U.S.C. § 922(g)(1).       He had previously been convicted of six felonies,
including two convictions for burglary and two for possession of a firearm by a
felon. Prentice was arrested while leaving a gun show after Fort Worth police
noticed prison tattoos on his body and saw him arrange for his girlfriend to
purchase two firearms on his behalf. He pleaded guilty with no plea agreement



       * 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.

                                             2
     Case: 18-11084       Document: 00515267495          Page: 3     Date Filed: 01/10/2020


                                       No. 18-11084
                                     c/w No. 18-11273

and was sentenced to 188 months in prison and four years of supervised
release. Subject to a fifteen-year statutory minimum, see 18 U.S.C. § 924(e)(1),
Prentice’s guideline range was 180 to 188 months. Prentice appealed, arguing
the district court erred in treating his two Texas burglary convictions as violent
felonies under the Armed Career Criminal Act (ACCA). In light of United
States v. Herrold, 883 F.3d 517 (5th Cir. 2018) (en banc), 1 the panel agreed.
See United States v. Prentice, 721 F. App’x 393 (5th Cir. 2018).
       On remand, Prentice’s new guideline range was 30 to 37 months, but the
district court imposed 55 months. The district court also imposed standard
conditions of supervised release both orally and in its written judgment.
Among the standard conditions is the visitation condition:
       The defendant shall permit a probation officer to visit him at any
       time at home or elsewhere and shall permit confiscation of any
       contraband observed in plain view by the U.S. Probation Officer.

       As Prentice concedes, he did not object to the visitation condition when
it was imposed, but he now appeals, arguing that the district court plainly
erred in imposing the visitation condition. 2
       Because Prentice did not object to the visitation condition in the district
court, we review for plain error. United States v. Peltier, 505 F.3d 389, 391
(5th Cir. 2007). To establish plain error, Prentice must demonstrate (1) an
unwaived “error or defect” that (2) is “clear or obvious” and (3) affected his
“substantial rights, which in the ordinary case means he must demonstrate



       1The judgment in Herrold has since been vacated. United States v. Herrold, 139 S. Ct.
271 (2019). Texas burglary convictions may be treated as violent felonies under the ACCA.
United States v. Herrold, 941 F.3d 173, 182. (5th Cir. 2019).

       2Prentice also argues the district court plainly erred by treating two other convictions
as serious drug offenses under the ACCA, though he acknowledges the issue “has been
resolved by this Court contrary to [his] position and [is] preserved solely for further review.”

                                               3
    Case: 18-11084     Document: 00515267495     Page: 4   Date Filed: 01/10/2020


                                  No. 18-11084
                                c/w No. 18-11273

that it affected the outcome of the district court proceedings.” Puckett v. United
States, 556 U.S. 129, 135, 129 S. Ct. 1423, 1429 (2009) (internal quotation
marks omitted).      If Prentice satisfies these three criteria, the panel may
“remedy the error . . . if the error seriously affects the fairness, integrity or
public reputation of judicial proceedings.”        Id. (internal quotation and
alteration marks omitted). “Meeting all four prongs is difficult, as it should
be.” Id. (internal quotation marks omitted).
      During the pendency of this appeal, after both briefs were filed, another
panel of this court published an opinion affirming imposition of the visitation
condition. United States v. Cabello, 916 F.3d 543, 544 (5th Cir. 2019) (per
curiam). Reasoning that the Fifth Circuit has not addressed the visitation
condition’s constitutionality or statutory reasonableness or whether a district
court must give reasons for imposing it, the Cabello court found no plain error
and rejected challenges identical to Prentice’s. Id. Cabello has already been
cited repeatedly for its holding that defendant-appellants cannot show plain
error. See, e.g., United States v. Kwan, 772 F. App’x 148, 149 (5th Cir. 2019);
United States v. Dominguez-Villalobos,774 F. App’x 226, 227 (5th Cir. 2019);
United States v. Ortiz-Najera, 772 F. App’x 207, 208 (5th Cir. 2019).
      This panel does the same. Following Cabello, Prentice cannot satisfy the
second prong of plain error because any error was not “clear or obvious” and
was instead “subject to reasonable dispute.” See Puckett, 556 U.S. at 135. We
therefore AFFIRM.




                                        4
