     Case: 18-60564      Document: 00515029941         Page: 1    Date Filed: 07/11/2019




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

                                      No. 18-60564                            FILED
                                                                          July 11, 2019
                                                                         Lyle W. Cayce
UNITED STATES OF AMERICA,                                                     Clerk

              Plaintiff - Appellee

v.

HOBER ACOSTA-NAVARRO,

              Defendant - Appellant



                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:18-CR-81-1


Before KING, ELROD, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
       After Hober Acosta-Navarro pleaded guilty to illegal reentry, the district
court sentenced him to 18 months’ imprisonment followed by a 3-year term of
supervised release. Acosta-Navarro challenges the imposition of supervised
release generally and two special conditions of supervised release. For the
following reasons, we AFFIRM the judgment of the district court in part and
VACATE in part.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-60564
                                        I.
      In 2018, Mississippi law-enforcement officers arrested Hober Acosta-
Navarro, a Honduran citizen without authorization to be in the United States,
for fishing without a license. Immigration and Customs Enforcement agents
found Acosta-Navarro while he was detained and arrested him for illegally
reentering the United States after having been previously deported. Acosta-
Navarro later pleaded guilty to illegal reentry in violation of 8 U.S.C. § 1326.
      Prior to this arrest, Acosta-Navarro had been convicted of possession
with intent to distribute cocaine and was deported. Acosta-Navarro reentered
the United States and was convicted of illegal reentry in 2010, after which he
was deported again.
      Based on his total offense level of 13 and criminal history category of III,
the presentence report (“PSR”) concluded that Acosta-Navarro’s U.S.
Sentencing Guidelines (“Guidelines”) range of imprisonment was 18 to 24
months and the Guidelines range for supervised release was 1 to 3 years. The
PSR also noted that per U.S. Sentencing Guidelines Manual § 5D1.1(c) (U.S.
Sentencing Comm’n 2016), “[t]he court ordinarily should not impose a term of
supervised release in a case in which supervised release is not required by
statute and the defendant is a deportable alien who likely will be deported after
imprisonment.” Acosta-Navarro did not object to the PSR.
      The district court adopted the PSR’s findings and conclusions. At the
sentencing hearing, the district court sentenced Acosta-Navarro to 18 months’
imprisonment followed by a 3-year term of supervised release. The district
court also imposed special conditions on the supervised release, two of which
are at issue here: while on supervised release, Acosta-Navarro must (1)
participate in alcohol or drug-abuse testing or treatment as directed by the
probation office, and (2) submit his property, including his “electronic
communications devices” to a search by a probation officer if the officer has a
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                                   No. 18-60564
“reasonable suspicion” that Acosta-Navarro has violated a condition of his
supervision. In imposing the sentence, the district court explained that it
“ha[d] considered the advisory guideline computations and the sentencing
factors under 18, United States Code, Section 3553(a).”
      Acosta-Navarro, through counsel, objected to the three years of
supervised release under § 5D1.1(c), given that Acosta-Navarro would likely
be deported after serving his prison sentence. He also objected to the two
special conditions of supervised release discussed above. The court responded
that “[it] would expect this defendant to be deported immediately upon his
completion of his prison time. Those conditions will remain in the event that
he is not deported.”
      Acosta-Navarro appeals the imposition of supervised release and the two
aforementioned special conditions.
                                         II.
                                         A.
      Acosta-Navarro first challenges the district court’s imposition of
supervised release, arguing that the sentence is unreasonable. “We review
sentences for reasonableness by engaging in a bifurcated review.” United
States v. Dominguez-Alvarado, 695 F.3d 324, 327 (5th Cir. 2012). At the first
step, “we ensure that the sentencing court committed no significant procedural
error, such as . . . ‘failing to adequately explain the chosen sentence . . . .’” Id.
(quoting Gall v. United States, 552 U.S. 38, 51 (2007)). Next, we “consider the
‘substantive reasonableness of the sentence imposed under an abuse-of-
discretion standard.’” Id. (quoting Gall, 552 U.S. at 51). “If a defendant fails to
properly object to an alleged error at sentencing, however, the procedural
reasonableness of his sentence is reviewed for plain error.” Id.
      On appeal, Acosta-Navarro argues that his sentence is procedurally
unreasonable because the district court did not make adequate findings to
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                                  No. 18-60564
support the imposition of supervised release. But at the sentencing hearing,
Acosta-Navarro’s counsel raised the following objection:
      For the record, Your Honor, I’d object to the three years of
      supervised release. Under sentencing guideline 5D1.1(c),
      normally, a court should not impose a term of supervised release
      where it is not required by statute and the defendant is a
      deportable alien.

This objection “sufficed to alert the district court of his disagreement with the
substance of the sentence, but not with the manner in which it was explained.
He could have asked the district court for further explanation during the
sentencing hearing, but did not.” United States v. Mondragon-Santiago, 564
F.3d 357, 361 (5th Cir. 2009); see also Dominguez-Alvarado, 695 F.3d at 327-
28 (finding objection to “term of supervised release that’s imposed as an
upward departure” was not objection to lack of explanation). Therefore, we
review the procedural reasonableness of Acosta-Navarro’s sentence for plain
error. Under the plain error standard, we must determine “whether there was
error at all; whether it was plain or obvious; whether the error affected the
defendant’s substantial rights; and whether this court should exercise its
discretion to correct the error in order to prevent a manifest miscarriage of
justice.” Dominguez-Alvarado, 695 F.3d at 328.
      We find that the district court adequately explained its imposition of
supervised release. A district court must provide sufficient explanation “to
allow for meaningful appellate review and to promote the perception of fair
sentencing.” Mondragon-Santiago, 564 F.3d at 360 (quoting Gall, 552 U.S. at
50). “When the judge exercises her discretion to impose a sentence within the
Guideline range and states for the record that she is doing so, little explanation
is required.” United States v. Cancino-Trinidad, 710 F.3d 601, 606 (5th Cir.
2013) (quoting United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005)).


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                                 No. 18-60564
      The Guidelines advise that a court “ordinarily should not” impose
supervised release on a defendant if it is not required by statute and the
defendant is a deportable alien who is likely to be deported after imprisonment.
U.S.S.G. § 5D1.1(c). But a district court may impose supervised release if it
“determin[es] that [supervised release] would provide an added measure of
deterrence and protection based on the facts and circumstances of a particular
case.” Cancino-Trinidad, 710 F.3d at 606 (quoting Dominguez-Alvarado, 695
F.3d at 329); see also U.S.S.G. § 5D1.1 cmt. n.5. The district court’s
determination need not be lengthy, and we have affirmed the imposition of
supervised release when the district court’s comments “indicate implicit
consideration of the deterrent effect of [supervised release].” Cancino-
Trinidad, 710 F.3d at 607.
      Here, the district court stated at sentencing that it considered the
“advisory guideline computations and the sentencing factors under 18, United
States Code, Section 3553(a).” The district court also adopted the PSR, which
discussed § 5D1.1(c). The district court’s adoption of the PSR supports an
inference that the court “considered all pertinent sentencing considerations in
imposing the sentence.” Id. at 606 (quoting United States v. Reyes-Serna, 509
F. App’x 313, 314 (5th Cir. 2013) (unpublished)). And the district court
reprimanded Acosta-Navarro for returning to the United States, telling him
that he “should have learned that by now” and that when he returned to
Honduras, he “need[s] to stay there.” This statement indicates that the court
considered the deterrent effect of its sentence. See United States v. Kelly-
Aguirre, 518 F. App’x 316, 316 (5th Cir. 2013) (unpublished) (affirming
supervised release when district court “was aware” of § 5D1.1(c) because it was
included in PSR, which court adopted, and court made statements at
sentencing addressing defendant’s criminal history and need to protect public);
Dominguez-Alvarado, 695 F.3d at 330 (noting that even under de novo review,
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                                  No. 18-60564
district court’s statement that it “gave the sentence after looking at the factors
in 3553(a), to deter future criminal conduct, [and considering] his particular
background and characteristics, which apparently do not make him a welcome
visitor in this country,” was sufficient to “justify imposition of a term of
supervised release”).
      Even if the district court had erred, Acosta-Navarro has not “show[n]
that an explanation would have changed his sentence.” United States v.
Chavez-Chum, 768 F. App’x 247, 250 (5th Cir. 2019) (unpublished) (quoting
Mondragon-Santiago, 564 F.3d at 365). His sentence was within the
Guidelines range and therefore presumptively reasonable. Id. Accordingly,
because Acosta-Navarro cannot show that “but-for the lack of explanation why
supervised release was imposed, the district court would have made a different
sentencing decision,” his “substantial rights were not affected, [and] his claim
fails under plain-error review.” Id.
      Acosta-Navarro’s sentence is not substantively unreasonable either.
Again, “a sentence within the Guidelines is presumed reasonable on appeal.”
Mondragon-Santiago, 564 F.3d at 360. “The presumption is rebutted only upon
a showing that the sentence does not account for a factor that should receive
significant weight, it gives significant weight to an irrelevant or improper
factor, or it represents a clear error of judgment in balancing sentencing
factors.” United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). To the extent
Acosta-Navarro argues that the district court did not afford sufficient weight
to § 5D1.1(c), this argument is without merit. As discussed above, Acosta-
Navarro raised his objection to the imposition of supervised release at
sentencing and cited § 5D1.1(c). “Therefore, the court was made aware of the
existence and text of the Guideline, and we can conclude it was ‘implicitly’
considered by the court and rejected.” Chavez-Chum, 768 F. App’x at 252.
Moreover, § 5D1.1(c) is “‘hortatory, not mandatory,’ leaving its ultimate
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                                   No. 18-60564
application to the discretion of the district court.” Id. (quoting Dominguez-
Alvarado, 695 F.3d at 329); cf. United States v. Campos-Maldonado, 531 F.3d
337, 339 (5th Cir. 2008) (“Appellate review is highly deferential as the
sentencing judge is in a superior position to find facts and judge their import
under § 3553(a) with respect to a particular defendant.”). Therefore, we find
that the district court did not abuse its discretion in sentencing Acosta-Navarro
to supervised release.
        Because Acosta-Navarro has not demonstrated an error on the part of
the district court, we affirm the district court’s imposition of supervised
release.
                                         B.
        Acosta-Navarro also challenges the imposition of special conditions on
his supervised release. A district court has “significant discretion in imposing
conditions of supervised release.” United States v. Ramos-Gonzales, 857 F.3d
727, 731 (5th Cir. 2017). But the district court’s discretion is limited in two
ways:
        First, the condition of supervised release must be “reasonably
        related” to one of four statutory factors: (1) the nature and
        characteristics of the offense and the history and characteristics of
        the defendant; (2) the need for deterrence of criminal conduct; (3)
        the need to protect the public from further crimes of the defendant;
        and (4) the need to provide the defendant with vocational training,
        medical care, or other correctional treatment. Second, the
        condition must be narrowly tailored such that it does not involve a
        “greater deprivation of liberty than is reasonably necessary” to
        fulfill the purposes set forth in [18 U.S.C.] § 3553(a).


United States v. Scott, 821 F.3d 562, 570 (5th Cir. 2016) (alteration in original)
(quoting United States v. Duke, 788 F.3d 392, 398 (5th Cir. 2015)).
        Although the district court must make factual findings that justify the
special conditions, “a court of appeals may nevertheless affirm a special

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                                 No. 18-60564
condition ‘where the [district] court’s reasoning can be inferred after an
examination of the record.’” United States v. Caravayo, 809 F.3d 269, 275 (5th
Cir. 2015) (alteration in original) (quoting United States v. Salazar, 743 F.3d
445, 451 (5th Cir. 2014)). Because Acosta-Navarro objected to the conditions
before the district court, we review for abuse of discretion. See Scott, 821 F.3d
at 570.
      Both Acosta-Navarro and the Government argue that the court should
vacate the special condition for drug testing. We agree. Although Acosta-
Navarro was convicted for possession with intent to distribute, there is no
evidence in the record that he personally used drugs. Nor did the district court
explain why it imposed this condition. Therefore, we find that the district court
abused its discretion and vacate the third special condition imposed on Acosta-
Navarro’s supervised release. See Ramos-Gonzales, 857 F.3d at 731-32
(“[W]here there is no relevant evidence of drug use, the essential characteristic
of a defendant that makes surveillance for drug use reasonable and
appropriate is absent.”).
      Acosta-Navarro also challenges the sixth special condition, which
requires him to submit his electronic communication devices to searches by a
probation officer. He argues that the special condition is not related to the
nature of his offense or his history. But we have affirmed the imposition of such
special conditions even when “nothing in the record indicates [the defendant]
used a computer or other electronic device to commit his offenses,” finding that
the condition is “reasonably related to the sentencing goals of deterring future
criminal conduct and protecting the public from [the defendant’s] future
crimes.” United States v. Sandford, 583 F. App’x 426, 427 (5th Cir. 2014)
(unpublished); see also United States v. Balla, 769 F. App’x 127, 128-29 (5th
Cir. 2019) (unpublished) (affirming electronics-search condition for defendant
convicted of being a felon in possession of a firearm and ammunition because
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                                      No. 18-60564
defendant’s criminal history and sentencing goal of deterring future criminal
conduct and protecting public justified special condition). Given Acosta-
Navarro’s criminal history, which includes multiple reentries and a conviction
for possession with intent to distribute, and the district court’s statements at
sentencing suggesting that it intended to deter his future crimes, we find the
condition reasonably related to the § 3553(a) factors. See United States v.
Hathorn, 920 F.3d 982, 985-87 (5th Cir. 2019) (affirming electronics-search
condition as “reasonably related” to defendant’s conviction for possession with
intent to distribute, his history of drug use, and need to deter criminal conduct
and protect public).
       We also find that the condition is sufficiently tailored so that it “does not
involve a ‘greater deprivation of liberty than is reasonably necessary.’” Scott,
821 F.3d at 570 (quoting Duke, 788 F.3d at 398). Although Acosta-Navarro
protests that the condition will permit unfettered access to his private
information, the probation officer may only search Acosta-Navarro’s electronic
communication when “reasonable suspicion exists that [Acosta-Navarro] has
violated a condition of his supervision,” and the search may only be conducted
“at a reasonable time and in a reasonable manner.” “[T]he possibility of
intermittent searches [is not] too much of a burden on [Acosta-Navarro’s]
already reduced liberty interest in light of his prior criminal history.” 1 Balla,
769 F. App’x at 128 (second alteration in original) (quoting United States v.



       1  Acosta-Navarro also argues that there is no Sentencing Commission policy
statement contemplating warrantless searches of communications devices for non–sex
offenders. Although special conditions “must be consistent with the policy statements issued
by the Sentencing Commission,” United States v. Weatherton, 567 F.3d 149, 153 (5th Cir.
2009) (citing 18 U.S.C. § 3583(d)(3)), we have also recognized that the absence of a policy
statement “does not cabin a district court’s discretion.” Hathorn, 920 F.3d at 987 (rejecting
argument that because policy statements only mention drug treatment, district court could
not also impose other special conditions). Furthermore, as described above, we have affirmed
electronic-search conditions even when the underlying conviction is not a sex crime.
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                                   No. 18-60564
Winding, 817 F.3d 910, 917 (5th Cir. 2016)); see also Hathorn, 920 F.3d at 986-
87.
        For these reasons, we find the district court did not abuse its discretion
in imposing the electronic-search special condition.
                                        III.
        We AFFIRM the judgment of the district court imposing supervised
release and the electronics-search special condition, but we VACATE the drug-
surveillance special condition.




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