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

                                                                            FILED
                                                                           May 14, 2008

                                       No. 07-50286                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee
v.

ALEX RAMIREZ TORRES

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 06-CR-064


Before JOLLY, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Appellant Alex Torres appeals his convictions and concurrent sentences
for aiding and abetting possession with intent to distribute heroin and
conspiracy to possess with the intent to distribute heroin. We AFFIRM his
convictions and MODIFY his sentence by striking the supervised release
condition prohibiting him from residing with anyone who is not a blood relative
or his spouse.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                       No. 07-50286


       I.     BACKGROUND
       In 2004, Appellant Alex Ramirez Torres (Torres) was an inmate at the
Reeves County Detention Center, which houses federal inmates in Pecos, Texas.
At this time, there was an ongoing investigation regarding the smuggling of
drugs into the facility. Eli Rodriguez (Rodriguez) was also an inmate, and the
investigation had focused on him and his brother, Daniel Armendarez
(Armendarez), who visited Rodriguez at the facility.
       On November 9, 2004, officials at the detention center intercepted a letter
from Rodriguez to Armendarez, and the officials interpreted the letter as
discussing a conspiracy to bring illegal drugs into the facility. The letter
provided that if Armendarez would visit Rodriguez, Rodriguez would pay him
$500. Thereafter, Investigator Hill began to monitor Rodriguez’s phone calls and
mail. On November 14, Armendarez and his wife, Victoria Zaragoza (Zaragoza),
visited Rodriguez and, during that visit, Rodriguez explained that contraband,
such as marijuana, was expensive in the facility. Rodriguez suggested that
Zaragoza could smuggle “illegal things” into the facility by hiding them in her
undergarment. He further suggested that after she was in the visiting area, she
would remove the items and put them in an open bag of chips. Rodriguez would
then take the contraband and hide it on his person.
       On November 15, officials intercepted another letter Rodriguez had
mailed. In it, Rodriguez thanked Armendarez for visiting and advised him that
he would be receiving $500. Rodriguez explained that Armendarez should keep
$200 and give the remaining $300 to their uncle, Luis Gonzales (Luis).1
Additionally, Rodriguez instructed Armendarez to put the “green” with the



       1
         Because Luis Gonzales was referred to as “Luis” during the trial, we also refer to him
by his first name.

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                                 No. 07-50286

“other stuff” and bring it with him. Investigator Hill testified that “green” was
a code word for marijuana.
      On November 19, officials intercepted three of Rodriguez’s phone calls. In
the first call, Rodriguez asked Luis if he had the “starlight” and then told him
that the money would arrive on Sunday. During the next call to Luis, Rodriguez
said that he had been speaking with another “dude” and talked of possibly
having Armendarez pick up the money. In the last call, Rodriguez informed
Armendarez that he should obtain the money from Western Union and take it
to Luis. Rodriguez informed Armendarez that Luis was “going to give you
something and you bring it back.” Rodriguez reiterated that: “We’re still going
to give you five,” an apparent reference to Rodriguez’s original promise to pay
Armendarez.
      The next day, Appellant Torres instructed his girlfriend, Priscilla Rivera
(Rivera), to send $300 to Armendarez in Hobbs, New Mexico. Later that day,
Rodriguez called Armendarez to confirm that he was on his way to pick up the
money. Rodriguez stated “they’re sending it from Glendale.” Armendarez picked
up the money that was wired to Western Union. Rodriguez called Luis and told
him that Armendarez was picking up the money, and Luis responded that he
was sending “two.” Luis told Rodriguez to be very careful. Rodriguez called
Armendarez and told him that Luis was waiting and said, “I’ll see you
tomorrow.”
      On November 21, Rodriguez made a phone call to an unknown recipient
and learned that Armendarez was in route to the facility. The unidentified
speaker also informed Rodriguez that “there was only three” and, therefore, only
“two and a quarter” could be sent. Rodriguez agreed.
      Later that afternoon, Armendarez and his wife Zaragoza arrived at the
facility. Upon their arrival, law enforcement officers questioned them regarding
whether they had contraband. Armendarez denied it. Eventually, Zaragoza


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admitted that she had drugs on her person and agreed to “give them up.” Both
Armendarez and Zaragoza were arrested.
        A grand jury returned an indictment charging Torres, Rodriguez,
Armendarez, Zaragoza, and Rivera with aiding and abetting possession with
intent to distribute marijuana (count one), aiding and abetting possession with
intent to distribute heroin (count two), and conspiracy to possess with the intent
to distribute marijuana and heroin (count three). 21 U.S.C. §§ 841(a)(1), 846; 18
U.S.C. § 2.
        Torres was tried before a jury. At trial, a chemist testified that the
substance Zaragoza carried was 1.98 grams of heroin. The government also
introduced another substance obtained from Zaragoza, which the government
contended was marijuana. However, no lab results were admitted proving that
the substance was marijuana.
        Torres’s defense was that the $300 he had wired was to satisfy a gambling
debt.    Investigator Hill testified that there was gambling at the facility.
Rodriguez testified as a defense witness and explained that inmates played
numerous card games. Inmates are not allowed to possess money in prison so
they would pay “in store,” which indicated the prison commissary. Also, the
evidence showed that inmates may only make $50 worth of purchases in a week.
If an inmate’s gambling debt exceeded $50, such an inmate would have their
friends or family send money to the creditor inmate’s family outside prison.
Rodriguez also testified that an inmate would be allowed two weeks to pay or
would be beaten. Rodriguez testified that Torres was a known gambler and
played cards every day. He testified the $300 was to pay a poker debt, not as
part of a conspiracy. Torres had no involvement with drugs to Rodriguez’s
knowledge.
        Rivera, Torres’s girlfriend, testified that she helped Torres with his
finances. Torres received quarterly checks because he is a member of the Pima


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Indian Tribe. Rivera would pick up a check from the reservation and deposit the
money in Torres’s account or he would provide her a list of people to pay. She
had previously sent money to other inmates, in amounts ranging from $50 to
$200. She further testified that on November 20, 2004, at the direction of
Torres, she made a Western Union money transfer of $300 to Armendarez.
Rivera also testified that Torres never asked her to obtain drugs or mentioned
drugs.
      In rebuttal, the government introduced evidence of a prior possession of
drug paraphernalia by Torres. Specifically, in March 2003, Torres’s cell was
searched and a homemade syringe was found. The government also introduced
Rodriguez’s plea agreement in which he had agreed that he was involved in a
drug conspiracy with Torres. Additionally, the government introduced evidence
that Rodriguez had been approached by gang members who threatened him
regarding testifying against Torres. The jury acquitted Torres of count one
involving marijuana but convicted him on counts two and three, which charged
aiding and abetting possession with intent to distribute and conspiracy with
respect to the heroin recovered. After enhancing Torres’s sentence based on a
prior crime of violence, the district court sentenced Torres to 210 months on both
counts to run concurrently. The court also imposed several conditions with
respect to his term of supervised release. Torres now appeals his convictions and
sentences.
      II.    CHALLENGES TO HIS CONVICTIONS
             A.   Sufficiency of the Evidence
      Torres argues that the evidence is insufficient to sustain his convictions.
Torres moved for a Rule 29 motion for judgment of acquittal at the close of
evidence and renewed it prior to jury instructions. We review the denial of a
motion for a judgment of acquittal de novo. United States v. Medina, 161 F.3d
867, 872 (5th Cir. 1998).


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      When reviewing the sufficiency of the evidence, we view all evidence,
whether circumstantial or direct, in the light most favorable to the government
with all reasonable inferences and credibility choices to be made in support of
the jury’s verdict. United States v. Salazar, 958 F.2d 1285, 1290-91 (5th Cir.
1992). The evidence is sufficient to support a conviction if a rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.
Id. The evidence need not exclude every reasonable hypothesis of innocence or
be completely inconsistent with every conclusion except guilt, so long as a
reasonable trier of fact could find that the evidence established guilt beyond a
reasonable doubt. United States v. Faulkner, 17 F.3d 745, 768 (5th Cir. 1994).
      To demonstrate the existence of a drug conspiracy in violation of 21 U.S.C.
§ 846, the government must prove: 1) an agreement existed to violate drug laws;
2) the appellants knew of the agreement; and 3) the appellants voluntarily
participated in it. United States v. Morgan, 117 F.3d 849, 853 (5th Cir. 1997)
(citation omitted).   To uphold a conviction for aiding and abetting under 18
U.S.C. § 2, the government must prove that the defendant associated with a
criminal venture, purposefully participated in the criminal activity, and sought
by his actions to make the venture successful. United States v. Polk, 56 F.3d
613, 620 (5th Cir. 1995) (citations omitted). A defendant associates with the
criminal venture if he shares in the criminal intent of the principal. United
States v. Jaramillo, 42 F.3d 920, 923 (5th Cir. 1995). A defendant participates
in the criminal activity if he has “acted in some affirmative manner designed to
aid the venture.” Id.
       Torres contends that the entirety of the government’s evidence against
him consisted of a money transfer payable to Armendarez and a homemade
syringe found in his shared cell more than a year before the instant offense. It
is undisputed that Armendarez and Rodriguez were involved in a drug
trafficking conspiracy. It is undisputed that pursuant to Torres’s instructions,

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his girlfriend sent $300 to Armendarez. The crux of the matter is whether
Torres intended the money to be used to purchase drugs or to pay off his
gambling debt.
      The government responds that the jury could infer from the timing of the
money transfer, the specific $300 amount, and the named payee (Armendarez)
that Torres was an active and knowing participant in the conspiracy and aided
and abetted in the possession with intent to distribute. The government also
points to the recorded phone conversations in which Rodriguez mentions talking
with “that other dude” and twice speaks in the plural when talking about
sending the money.
      As previously stated, the only contested issue is whether Torres intended
the $300 to be used to purchase drugs or to pay off his gambling debt. Torres’s
former girlfriend testified that the amount of money she had previously sent to
other inmates ranged from $50 to $200 and that $50 was the amount most often
sent. Her testimony indicates that the wire transfer at issue was exceptional in
that it was the highest amount ($300) Torres had her transfer to other inmates.
      With respect to defense witness Rodriguez’s testimony that the $300 was
to pay a gambling debt, the jury was free to reject it. Further, the jury could
consider the homemade syringe previously found in Torres’s cell in determining
whether he had the intent to purchase the drugs. Finally, the government
solicited testimony that Torres “shoots up” heroin. In sum, viewing the evidence
in the light most favorable to the verdict, we find it sufficient to prove Torres
intended the $300 be used by Armendarez to purchase drugs.
            B.    Admission of Evidence
      Torres next contends that the district court erred in allowing the
admission of evidence showing that a homemade syringe was found in his shared
cell in an Arizona prison on March 23, 2003. The district court found that the
2003 seizure was not too remote in time from the instant offenses committed in


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                                  No. 07-50286

November 2004. The court also found that the probative value of the evidence
outweighed any prejudicial effect.
      Rule 404(b) of the Federal Rules of Evidence provides that:
      Evidence of other crimes, wrongs, or acts is not admissible to prove
      the character of a person in order to show action in conformity
      therewith. It may, however, be admissible for other purposes, such
      as proof of motive, opportunity, intent, preparation, plan,
      knowledge, identity, or absence of mistake or accident . . . .

The district court’s admission of extrinsic acts evidence may be reversed only
upon a clear showing of an abuse of discretion. United States v. McCarty, 36
F.3d 1349, 1353 (5th Cir. 1994). In assessing violations of Rule 404(b), we
engage in a two-part test: (1) whether the evidence is relevant to an issue other
than the defendant’s character; and (2) whether the evidence possesses probative
value that is not substantially outweighed by the danger of unfair prejudice and
is otherwise admissible under Rule 403. United States v. Beechum, 582 F.2d
898, 911 (5th Cir. 1978).
      Beechum teaches that for extrinsic conduct to be relevant, the government
must first demonstrate the defendant committed the act. 582 F.2d at 912-13.
“The standard for the admissibility of extrinsic offense evidence is that of rule
104(b): ‘the preliminary fact can be decided by the judge against the proponent
only where the jury could not reasonably find the preliminary fact to exist.’” Id.
at 913 (quoting 21 C. Wright & K. Graham, Federal Practice and Procedure:
Evidence § 5054, at 269 (1977)). Here, the evidence established that the syringe
was found on Torres’s shelf in his cell. Thus, a jury could reasonably find that
Torres possessed it.
      Torres does not dispute that the extrinsic evidence is relevant to an issue
other than his character. We agree. United States v. Parziale, 947 F.2d 123, 129
(5th Cir. 1991) (explaining that mere entry of a not guilty plea in a conspiracy
case raises the issue of intent to justify admission of extrinsic evidence). The

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first prong of Beechum is thus satisfied. Next, it must be determined whether
the requirements of Rule 403 are satisfied.
      Torres also does not dispute that the syringe was probative of his intent
with respect to the charged offense.               Instead, he simply asserts that the
probative value of the evidence was substantially outweighed by the danger of
unfair prejudice. He contends that there was no evidence he used heroin, such
as a positive drug test or needle marks on his arms. He argues that in light of
the lack of evidence of his guilt, the syringe in all probability led to his wrongful
conviction. Torres incorrectly contends that there was no other evidence that he
injected drugs. During Sergeant Ramos’s testimony, he briefly mentioned that
Rodriguez admitted to him that Torres “shoots up” heroin. In any event, the
premise of Torres’s argument is faulty.                Beechum provides that “if the
Government has a strong case on the intent issue, the extrinsic offense may add
little and consequently will be excluded more readily.”                582 F.2d at 914.
Therefore, because the evidence of Torres’s intent was not particularly strong,
the syringe had significant probative value.
      Finally, any danger of unfair prejudice was diminished by the limiting
instruction to the jury.2 See United States v. Saucedo-Munoz, 307 F.3d 344, 350
(5th Cir. 2002) (explaining that any prejudicial effect may be minimized with a
proper limiting instruction). Under these circumstances, the probative value of



      2
          The district court instructed the jury as follows:

      You must not consider this evidence in deciding if Mr. Torres committed the acts
      charged in the indictment; however you may consider this evidence for other,
      very limited, purposes. If you find beyond a reasonable doubt from other
      evidence in this case that the Defendant did commit the acts charged in the
      indictment, then you may consider this evidence of the syringe found in his cell
      in Arizona in 2003 to determine whether or not the Defendant had the state of
      mind, intent, knowledge, or motive to commit the acts for which he is charged
      in the indictment.


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the syringe was not outweighed by any unfair prejudice, and we thus affirm the
district court’s evidentiary ruling.
            C.     Jury Instruction
      Torres next contends that the trial court erred in refusing to give the jury
his proposed instruction on personal use. More specifically, Torres’s proposed
instruction provided that a jury could infer intent to distribute from the quantity
of drugs:
      The intent to distribute controlled substances may be inferred solely
      from the possession amount of a controlled substance if too large to
      be used by the possessor alone, but a quantity that is consistent
      with personal use does not raise such an inference in absence of
      other evidence.

      This Court reviews the district court’s refusal to give a requested jury
instruction for an abuse of discretion. United States v. Pennington, 20 F.3d 593,
600 (5th Cir. 1994). “The refusal to give a jury instruction constitutes error only
if the instruction (1) was substantially correct, (2) was not substantially covered
in the charge delivered to the jury, and (3) concerned an important issue so that
the failure to give it seriously impaired the defendant’s ability to present a given
defense.” Id. (citation omitted).
      In the instant case, during the charge conference, the district court ruled
that Torres was not entitled to a personal use instruction because he never
possessed the drugs and the evidence shows the drugs had been distributed or
transferred among the parties. In other words, the district court ruled that the
undisputed evidence was that the drugs had been distributed or transferred
(Armendarez to Zaragoza), and thus the evidence did not support the personal
use instruction. We need not determine whether the district court’s reasoning
is correct because the district court’s instructions substantially covered the
proposed charge. In United States v. Galvan, the appellant argued that the
district court erred in refusing to give an instruction that the quantity of drugs

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involved could be consistent with personal use and did not give rise to an
inference of intent to distribute. 133 F. App’x 154, 156 (5th Cir. 2005). This
Court rejected the argument “because the substance of the requested jury
instruction was in fact included in the court’s charge, which instructed the jury
that it could find the defendant guilty of the lesser included offense of mere
possession.” Id. Likewise, in the instant case, the charge instructed the jury
that it could convict Torres of the lesser included offenses of aiding and abetting
the possession of heroin and conspiracy to possess heroin. Accordingly, the
district court did not abuse its discretion in refusing the jury instruction.
      III.   SENTENCING CHALLENGES
             A.    Crime of Violence Sentencing Enhancement
      Torres contends that the district court erred in finding that one of his prior
convictions was a crime of violence and enhancing his sentence 16 levels on that
basis. Torres does not dispute that he previously pleaded guilty to burglary of
a habitation in Arizona state court.
      Pursuant to U.S.S.G. § 4B1.2(a)(1) and (2), a “crime of violence” “has as an
element the use, attempted use, or threatened use of physical force against the
person of another, or (2) is burglary of a dwelling . . . .” (emphasis added).
Torres pleaded guilty to violating the following statute: “A person commits
burglary in the second degree by entering or remaining unlawfully in or on a
residential structure with the intent to commit any theft or any felony therein.”
Ariz. Rev. Stat. Ann. § 13-1507.
      This Court employs two different methodologies to determine whether a
prior offense constitutes a crime of violence: “(1) because it is an enumerated
offense or (2) because it has as an element the use or attempted use of force.”
United States v. Mungia-Portillo, 484 F.3d 813, 816 (5th Cir.) (citation omitted),
cert. denied, __ U.S. __, 128 S.Ct. 320 (2007). Section 4B1.2(a)(2) expressly lists
“burglary of a dwelling” as a crime of violence, and thus it is an enumerated

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                                   No. 07-50286

offense. Torres concedes that he pleaded guilty to burglary of a habitation. In
United States v. Hornsby, 88 F.3d 336 (5th Cir.1996), this Court held that
burglary of a habitation is a “crime of violence” under § 4B1.2 because “burglary
of a dwelling” was listed as an enumerated offense. Id. at 339.
      Torres nonetheless argues that it was not a crime of violence because the
state court judgment provides a notation that the crime was a “non-violent and
non-repetitive offense.” Apparently, the state sentencing judge made that
finding. The instant guidelines question, however, is one of federal law, which
controls.   See United States v. Serna, 309 F.3d 859, 863 (5th Cir. 2002)
(explaining that federal law controls the determination of whether a prior
conviction was a “crime of violence” under § 4B1.2). Thus, the individual state
judge’s characterization of Torres’s offense is of no moment.            Under our
precedent, the district court properly found that Torres’s prior conviction was an
enumerated offense and the 16-level enhancement is affirmed.
             B.    Conditions of Supervised Release
      Torres challenges two conditions on his term of supervised release. Title
18 U.S.C. § 3583 governs the imposition, modification, or revocation of a term of
supervised release. Section 3583 provides that when sentencing a defendant to
a term of incarceration, a court may include a term of supervised release to
follow imprisonment. The court may impose conditions on the defendant’s term
of supervised release. In addition to certain mandatory conditions, section
3583(d) provides that a court may impose “any condition set forth as a
discretionary condition of probation in section 3563(b)(1) through (b)(10) and
(b)(12) through (b)(20), and any other condition it considers to be appropriate.”
      Although a district court has broad discretion in imposing conditions on
supervised release, such conditions must be reasonably related to the factors set
forth in § 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D). United States v. Ferguson,
369 F.3d 847, 852 (5th Cir. 2004). The statutory factors include: (1) “the nature

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and circumstances of the offense and the history and characteristics of the
defendant,” (2) the need “to afford adequate deterrence to criminal conduct,” (3)
the need “to protect the public from further crimes of the defendant,” and (4) the
need “to provide the defendant with needed [training], medical care, or other
correctional treatment in the most effective manner.” Id. (citations omitted)
(brackets in opinion).
      Even if the condition is reasonably related to the above factors, the court
may not impose conditions that “involve a greater deprivation of liberty than is
reasonably necessary to achieve the latter three statutory goals.” Id. (citation
omitted). Additionally, the conditions must be “consistent with any pertinent
policy statements issued by the Sentencing Commission pursuant to 28 U.S.C.
994(a).” Id. (quoting section 3583(d)).
                   1.    Condition on Who May Reside with Torres
      The district court imposed the following condition on Torres’s supervised
release: “The defendant shall not reside with anyone who is not a blood relative,
or that the defendant is not legally married to whether it be a civil or religious
ceremony during the term of supervision.” Torres admits that he failed to object
and therefore the claim is reviewed for plain error. Before an appellate court can
correct an error not raised below, there must be: (1) error; (2) that is plain; and
(3) that affects substantial rights. United States v. Olano, 507 U.S. 725, 732-34
(1993). If all three prerequisites are met, the Court may exercise its discretion
to correct a forfeited error, but only if the error seriously affects the fairness,
integrity, or public reputation of the judicial proceedings. Id. at 735-37.
      The government concedes that the court’s sua sponte requirement that
Torres live with a spouse or blood relative is plain error. We agree. In United
States v. Smith, the district court ordered that “during his period of supervised
release, defendant shall not cause [the] conception of another child other than
to his wife, unless he can demonstrate he is fully providing support to the three

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children presently in existence, and the two en ventre sa mere.” 972 F.2d 960,
961 (8th Cir. 1992) (brackets in opinion). The Eighth Circuit opined that the
“number of children that Smith has fathered is in no way related to ‘the nature
and circumstances of’ Smith’s drug offense.” Id. at 962. Further, the Court
explained that “[t]here is no reason to believe that restricting Smith from
fathering more children will deter Smith from future criminal conduct, protect
the public, or assist in Smith’s rehabilitation.” Id. Thus, the Court reversed the
condition.
      In the instant case, the special condition would prohibit Torres from
residing with an individual who is not his spouse or related by blood. Indeed, if
read literally, it would prohibit Torres from living with a step-brother. We find
the instant restriction is overbroad and not reasonably related to Torres’s
offense, the need to protect the public, or Torres’s rehabilitation. We find
reversible plain error and strike this condition from the judgment.
                  2.     Order to Establish Child Support Accounts
      Torres also asserts that the district court plainly erred in ordering him to
“establish an account in Arizona for the support of his/her minor child/children”
as a condition of his supervised release. The sentencing guidelines provide that:
      [T]he defendant shall support the defendant’s dependents and meet
      other family responsibilities (including, but not limited to,
      complying with the terms of any court order or administrative
      process pursuant to the law of a state, the District of Columbia, or
      any other possession or territory of the United States requiring
      payments by the defendant for the support and maintenance of any
      child or of a child and the parent with whom the child is living).

U.S.S.G. § 5D1.3(c)(4). Further, pursuant to statute, Congress has expressly
authorized a district court to require a defendant, as a condition of supervised
release, to “support his dependents and meet other family responsibilities.” 18
U.S.C. § 3563(b)(1).



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      Torres concedes that our review is for plain error. The government
responds that § 5D1.3(c)(4) has been interpreted to mean that a district court
can enforce a state court order for child support as a condition of supervised
release. United States v. Lakatos, 241 F.3d 690, 693 (9th Cir. 2001). Here,
however, there is no contention that there is an existing state court child support
order. Nonetheless, the above-quoted guideline provides that the defendant’s
obligation to support his dependents is “including, but not limited to, complying
with the terms of any court order . . . .” § 5D1.3(c)(4) (emphasis added). This
language indicates that a district court may impose conditions in addition to a
state court child support order.     In light of the statutory and sentencing
guideline authorization to order a defendant to support his dependents, Torres
has not carried his burden of showing plain error.
      IV.   CONCLUSION
      For the above reasons, we AFFIRM Torres’s convictions and MODIFY his
sentence by striking the following supervised release condition: “The defendant
shall not reside with anyone who is not a blood relative, or that the defendant
is not legally married to whether it be a civil or religious ceremony during the
term of supervision.”
      AFFIRMED AS MODIFIED.




                                        15
