     Case: 18-11042      Document: 00515008128         Page: 1    Date Filed: 06/24/2019




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

                                                                                 FILED
                                    No. 18-11042                             June 24, 2019
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

SERRAH ARNOLD, also known as Kristen,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:16-CR-234-2


Before HIGGINBOTHAM, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Serrah Arnold appeals as substantively unreasonable the 24-month
prison sentence imposed following revocation of her probation.                      She also
contends that the district court imposed an unconstitutionally vague and
overbroad standard condition of supervised release requiring her to “permit a
probation officer to visit [her] at any time at home or elsewhere and permit
confiscation of any contraband observed in plain view by the probation officer.”


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-11042

Finally, Arnold argues that the district court procedurally erred by imposing
the condition without explanation.
      With respect to the substantive reasonableness of her prison sentence,
Arnold contends that the district court gave no weight to the policy statement
range of 4 to 10 months or the factors in 18 U.S.C. § 3553(a) while giving too
much weight to the fact that she repeatedly violated numerous conditions of
her probation by using and possessing methamphetamine at least eight times
over the course of a year.       We review the sentence under the plainly
unreasonable standard. United States v. Kippers, 685 F.3d 491, 497 (5th Cir.
2012).   We recognize that Arnold’s sentence was well above the policy
statement range, but “[w]e have routinely affirmed revocation sentences
exceeding the advisory range, even where the sentence equals the statutory
maximum.”     United States v. Warren, 720 F.3d 321, 332 (5th Cir. 2013)
(collecting cases).   Moreover, the district court’s statements at sentencing
reflect that it considered the applicable § 3553(a) factors, including deterrence,
the nature and circumstances of the offense, and the history and
characteristics of the defendant.      See § 3553(a)(1), (a)(2)(B). Given the
deference owed to the district court’s sentencing decision, Arnold has not
established that her 24-month sentence was substantively unreasonable. See
Kippers, 685 F.3d at 497, 500.
      As to Arnold’s arguments related to the visitation condition of supervised
release, because she did not object to the imposition of the standard supervised
release condition or to the lack of an explanation, we review for plain error.
See Puckett v. United States, 556 U.S. 129, 135 (2009). We have not before
addressed the constitutionality or substantive reasonableness of the visitation
condition or whether a sentencing court must give reasons for imposing a
standard supervised release condition. United States v. Cabello, 916 F.3d 543,



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                                       No. 18-11042

544 (5th Cir. 2019). 1 “We ordinarily do not find plain error when we have not
previously addressed an issue.” United States v. Evans, 587 F.3d 667, 671
(5th Cir. 2009) (internal quotation marks and citation omitted). To that end,
we have declined to find plain sentencing error where “this court’s law was
unsettled.” United States v. Garcia-Rodriguez, 415 F.3d 452, 456 (5th Cir.
2005).
       In light of Cabello, Arnold fails to show that the district court committed
error that was “so clear or obvious that the trial judge and prosecutor were
derelict in countenancing it, even absent [Arnold’s] timely assistance in
detecting it.” United States v. Trejo, 610 F.3d 308, 319 (5th Cir. 2010) (internal
quotation marks and citation omitted); see Puckett, 556 U.S. at 135.
Consequently, we AFFIRM the judgment.




       1 As the concurring opinions in Cabello evidence, it is currently an open question in
this circuit—as well as the source of a circuit split across other circuits—whether sentencing
courts are statutorily required to explain the reasons for imposing “standard” conditions of
supervised release. Compare 916 F.3d at 544-45 (Higginbotham, J., concurring) with id. at
545-48 (Elrod, J., concurring).


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